Okwosa Odua & Ors V. Nwanze & Ors (1934)

LawGlobal Hub Judgment Report – West African Court of Appeal

Title to Native land—Prayer for Title and injunction—Jurisdiction of Trial Court–” Res Judicata” discussed.

The facts of this case are sufficiently set out in the judgment.

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C. W. Clinton for Appellant.

M. Thompson for Respondents.

The following judgment was delivered :— DEANE, C.J., GOLD COAST.

This is an appeal from Graham Paul, d. -sitting in the Divisional Court. The plaintiffs sued as representing the Odekpe people praying as against the defendant, who represented the Umuoputa Orifite family, a declaration that they were entitled to a parcel of land called Iyiowa situate at Onitshs and delineated in red on a plan ” F ” put in evidence, and an injunction to prevent the defendant, his servants and agents entering on the said land. The learned Judge gave the declaration as asked and also -granted the injunction, but the latter in a modified form allowing the inhabitants of the village on the land known as Itibanefo village to continue in the occupation of their houses but providing that any farming on the land should be subject to the permission of the plaintiffs and the customary harvest tribute—he also provided that the cutting of palm nuts or tapping of palm trees by the defendants should be subject to the same restrictions, and that no new buildings should be erected on the land without the permission of the plaintiffs. From this decision the defendants have appealed. The plaintiffs’ case was that the Odekpe people have owned this land and exercised rights of ownership over it from time immemorial, and that they had themselves allowed Mbanefo, who was originally sued as defendant, Nwanse having been substituted for him on his death after action brought, to settle on the land as their tenant after which he had by exercising the right to let out the land to others under the claim of being tot,’ owner caused them to institute this suit. The defendant on his aide claimed that the land, save for a small portion, belonged to the Umvoputa family of Orifite from time immemorial, and that they

– Now although one of the reasons given for appealing is that

the decision was against the weight of evidence, no argument was Deane, (1.J.. advanced to us on that point by the appellant’s Counsel for the

very good reason no doubt that the evidence, as I understand it, is overwhelmingly in favour of the plaintiffs, and I do not therefore propose to discuss this ground of appeal or the reasons given by the learned Judge for arriving at his decision, but will content myself with saying that in my opinion the learned Judge had ample material on which to base his conclusions.

I must however examine the reasons put forward on behalf of the defendant why iiirgIudgment should be set aside—they are two (1) that the Divisional Court had no jurisdiction to hear the case (2) that the plaintiffs were estopped per rem judicatail^—htom establishing their case.

The appellant’s submission as to the first point may be summarised shortly as follows :–This case was listed in the Provincial Court in the name of Okwosa Odua 4 another v. Mhanefo: it was transferred to the Divisional Court by an order of the Acting Chief Justice dated 8th July, 1932, under the name of Okwosa Odua 4 another v. Nwanze—the order substituting Nwanse for Mbanefo was only made by Berkeley, J. in the Divisional Court on 19th^. January, 1933. The order of the Acting Chief Justice therefore was a nullity since at the time it was made there was no such case as Okwosa Odua 4 another v. Nwanze in existence, and as the jurisdiction of the Divisional Court depends upon the order that Court, it follows, has no jurisdiction. Now’ it is obvious that even admitting all the facts as defendant would have them this objection is one of form rather than substance; since there is no question that the case which was transferred froni the Provincial Court to the Divisional Court was the identical case which was meant to be transferred, which was in fact transferred, um] Aldiich is before us now; from the affidavit filed on behalf of. the plaintiffs moreover, and from an examination of the proceedings of the Provincial Court, it is clear that the application to transfer the ease under the name of Okwosa Odua 4 another v. Nwanze was made to the Acting Chief’ Justice after the Resident had, on notice given to him by defendants themselves, substituted Nwanze as defendant for Mbanefo on the death of the latter.

Moreover at the date of transfer the case was actually before the Provincial Court with the name of Nwanse as defendant, for prior to that date it had first been transferred from the Provincial Court to the Neill,* Court and then retransferred from the Native Court to the Provincial Court,- and the name in which the order was made for such retransfer was Nwanse and not Mbanefo. The order of transfer, therefore, was a perfectly good and valid order

at the time it was made, and the Divisional Court was thereby vested with jurisdiction., The fact that no formal order of substitution was drawn ^–up by the Resident if! of no consequence -since the proceedings of the Provincial:C.4A need not be formal—nor can the subsequent order of Berkeley, J. in so far as it purport.; in substitute Nwauze for Mbanefo have any effect since it was ^-,pertluous, purporting to do in fact what had already been done.

 There^– irte”ndrmittrffifthing in this point.

Then wt pass to the_. contention that the plaintiffs are ?stopped
aucceeding per rejii, pdwatans—in support of this the
^,“efendant points to, the results of three comes in the Native Courts.

The first was a case. oti7gbimia v. Aybauzu 4- On decided in !lie Native Court of Onitsha on 4th September, 1929. It was a

oftr_.empaaa brought ir the criminal side of the Native Court vital the order made was `’^v ease dismissed. „ If complainant likes lie can _sue Mbanefo’ and:prove^–ownership of theland.’.! It is clear, theiefore, that the order of the Court Setired ^.no question of ownership as between’ Mbanefo and the pomplainant in that case whoever he was, and that no estoppel by rot yudicata can arise out of these proceedings against the plaintiffs.

The next case was that of Mbanefo Akunnia of Ori/ite v. Ofoni

Sobo decided in the Native Court of Onitalta on 8th September,,, 1930. It was a claim by Mbanefo against a Sobo man for (1) 143: rent and damages for plaintiffs’ land, occupying two years ago (2) for defendant to quit from the land “. The order of -the Native Court was that defendant should ” quit from the land in three months time, and pay £15 to plaintiff with costs in seven ^,lays time “. .Now it is dear that in ordpi^, to succeed on a pion of res iarlioata a defendant must prove that the same question with regard to the same subject matter as is being sought En he litigated in the action herorp i7ou►. has been orevious17^, litigated het wren hini.eir (or his privy) and the plaintiff (or, his Privy) before Cour! of competent jurisdiction and that plaintiff has been iinsaree^,sful in that taiga tion. Has the defendant. proved that in Ihese Di oeeedings?₁, ….Take first the subject matter of the proceedings—we know
thii rase that a question is being litigated with regard to a
1.tige parcel of land, called Iyiowa, the boundaries of which are
(1e:illy defined by_plan : in the native case there is nothing on
the face of the proceedings to show what is the subject matter of
the action. The defendant, however, relies upon the evidence of
()mita Oneyelengba, a witness for the plaintiffs in this action
Ow gave evidence on behalf of Ofoni in the native snit to supply
e deeiency. Oneyelengba, it is true, admitted in cross-
evaniination that the land with regard to which Ofoni was sued
was Tyjowa land but there is nothing to show that the land called
rviowd, as understood in that case, is the same as Iyiowa in this
ease : in fart it is certain that it was a very small portion of
lyiowa land as heroin described since Ofoni was said to be one

a number of tenants put on the land the greater part of which is in the occupation of the plaintiffs; so that the subject matter of the two CALSVS’&44 not identical. Nor were _:the questjo • dis•ussed as to the subject matter identical in both eases. In this case the question is—does Tyiowa land^– ‘belong to plaintiff or defendant? In the native case the question was—is Mbanefo entitled to recover £43 rent, and possession of the land on which he was a tenant from one Ofoni. The difendant’s Counsel however argued that, even although the question for decision in the two cases appear on the face of the proceedings to be different, they are in reality the eame since to decide the question of whether °foul had to pay rent tillibiinefo or not the question of ownership of the land had necessarily first to be decided. :slow itjiislear that in law atenant c0000t_distotitre Iris Jatollgrirm title, and the question whether not Ofoni should lay` rent to ^.Mbunefo or be evicted from his tenancy did not necessarily depend upon the answer to the question who was the owner of the land. When this point was put to Counsel during the course of hiii argument his repiy–was that the £43 chained^–Was not really claimed for rent but for use and otwupation of_ the land, and that no question of tenaney was involved although prima fauicit might Ito appear, but on referring to the proceedings before the Native Court I find that Mbanefo was specially asked by the Court ” Who leased the land to defendant?” and that his reply was ” I leased it to him “—which to my ‘law] shows clearly that the. question of the ownership of this land iniiht very well not haVe been taken into account by the Native Court at all in arriving at their decision, especially as we know from the evidence that Mbanefo was lawfully in pOs.session of u. part of lyiowa land with the eonsent of the plaintiffs, and so might have been thought by the. Native Court to be competent to give a lease on that account.

Nor are the parties in -the two cases the same—Mbaneto was suing Ofoni on his own behalf in the native case—Ofoni was a Sabo man of a different tribe to the Odekpes who does not represent them in any way—and was not sued us representing them—it fellows therefore that neither plaintiffs nor defendant in this case are -tige same us in the native case. Counsel for defendant argued however that inasmuch as Oneyeterigba, an Odekpe man, gave evidence in support of Ofoni’s defence that he was not a tenant of Mbanefo but of the Odekpes, Ofoni must be held to be a privy of the Odekpe people: I cannot assent to such a proposition—a tenant is necessarily a privy of his landlord where the title of the land he occupies is in question since he derives his title to be on the land from the landlord, but a landlord’s title to his land could not possibly be held to be affected by the result of any action brought against his tenant, who very probably knows nothing about his title unless poyibly it could be shown that the landlord knew his title was to be attacked, identified himself with the tenant and authorised him to defend the title -to the land on his behalf.

Nothing of the kind is shown here; all that can be said for defendant is that an Odekpe man gave evidence on behalf of Ofoui, while the evidence shows that as soon as the Odekpes knew of -the result of the case they went to the Commissioner to complain, and that, when he puriorl$ to reopen the case so that the question of the title of the land might be considered, they refused to take any part in such further inquiry because as they told the Court ” we wanted to sue Ifbanelo ourselves and have a proper case about the title to the land “—thereby showing clearly that they refused to identify themselves in the proceedings already taken with Ofoni, and were determined now that they knew their title to a part of Iyiowa land was being attacked to take their own action against Mbanefo who was attacking it.

In my opinion the case of Albansio v. Ofoni cannot operate as an estoppel in this case.

Nor does the case of Kodilinye of Obosti v. Alban:of°, £60 damages for trespass on plaintiffs’ land usznott-Ugboko, assist the defendant. The parties are not the same and the case is concerned with a different piece of laud entirely.’

I think this appeal should be dismissed with costs.