David Nwonicha Chiekwe Vs David Obiora & 4ors. (1960)
LawGlobal-Hub Lead Judgement Report
BAIRAMIAN, FJ
This is an appeal from the High Court of the Eastern Region, against the judgment given by Betuel, J. on the 16th December, 1958, in Suit No. O/60/57.
The deceased plaintiff sued four persons as defendants, but applied at the trial to have No. 4 struck out because he had not been served, and No. 4 was struck out. Defendants Nos. 5 and 6 were joined at their request, as representing the Akpukwu Family of Nkwelle Ezunaka, who claimed to be landlord of both the plaintiff and the defendants No. 1, No. 2 and No.3
Briefly, the Statement of Claim alleges that the plaintiff is the owner in possession of a piece of land known as Enu Ofufe Nwoliokwa, which he inherited from his father, who had alleges that in 1954 the plaintiff sued Defendant No. 1 and eleven others for trespass on the land, and obtained judgment against them, in the Onitsha Native Court, and that the plaintiff will rely on the judgment and findings in that Court in Suit No. 79/54 and No. 108/54.
In the Defence, Defendant No. 1 alleged (inter alia) that the Native Court judgment was given by a court without jurisdiction on the ground that Nkwelle is not under the Onitsha Native Court jurisdiction. Defendants 1 and 3 deny the traditional history alleged; and all defendants say that the plaintiff is not entitled to his claim. Further to the defence, defendants No. 5 and No. 6 add that the plaintiff and the other defendants are their tenants paying customary tribute, he farming Enu Ofufe and they Azofa, which are contiguous. And the defence ends with a general traverse except for what it expressly admitted.
Two plans were put in evidence: the defendants’ (Exhibit 3) shows two pieces of land Azoba and Enu Ofufe Nwoliokwa Azoba, being twice as large as Enu Ofufe; in the plaintiff’s plan (Exhibit 2) both pieces are shown as one, by the name of Enu Ofufe Nwoliokwa. The plaintiff admitted in his evidence the payment of rent, so the core of the dispute was the area of the grant.
The learned Judge did not find the plaintiff a satisfactory witness: at first the plaintiff claimed to be the absolute owner of the whole area, later he was forced to admit that he pail annual rent. This spoiled his chances of being believed in regard to his story of how the grant came to be made in his grandfather. His grandfather married a lady of the Nkwelle family a fact which could well account for the grant of the smaller area. To that fact the plaintiff added the story that his grandfather supplied the Nkwelles with gunpowder and took part in their battle with the Ogbunikes; and on this story the learned Judge comments that:-
“his (the grandfather’s) occupation as a trader would suggest that it is not unlikely that he may have supplied gunpowder but makes his participation in the battle less likely, in any event, the supply of gunpowder and the battle is hotly disputed by the defence.”
The learned Judge goes on to add that the plaintiff’s kinsmen, who described himself as the head of the family, did not support the plaintiff’s story, and testified to the grant being of the lesser portion of land. On this part of the judgment, ground 3 of the grounds of appeal complains that-
“The learned Judge misdirected himself in the following passage of his judgment-
The validity of this history is of consequence, because it is likely that to repay the costs of the material supplied, out of gratitude for the help given, and kinship arising out of marriage, a far larger portion of land would be granted to the plaintiff’s grandfather than he would get from the affection and generosity of his father-in-law, untinged by those other considerations.
If this tradition is false to the knowledge of the plaintiff, it is calculated to bolster up his claim to a far larger share of the land than he would otherwise be entitled to.”
Where the misdirection lies I cannot see grounds for complains that the judgment is unwarranted, unreasonable and cannot be supported having regard to the weight of evidence. Learned Counsel did not advance any argument in sport of that ground.
His argument was directed mainly to showing, as stated in ground 1, that the trial Judge erred in holding that the Onitsha Native Court had no jurisdiction over the land in dispute, and also erred, as stated in ground 2, in not regarding the Onitsha Native Court Suits 79/54 and 108/54 as res judicata against the defendants when (as ground 2 puts it)
“the defendants submitted themselves to the jurisdiction of the Onitsha Native Court and there was no appeal against the said judgment.”
For this learned Counsel relied on Olawunmi Agbogunde v. Raji Lanlokun, a decision of the Federal Supreme Court reported in Western Region of Nigeria Law Reports, 1958, at p.69. The judgment of the High Court in the case is reported at p.38 of the 1957 volume.
It appears from the High Court judgment that the defendant was the first to sue about the land in dispute; he did so in the Ede Native Court, which granted him a declaration of title; and the defendant pleaded that judgment in the High Court suit, adding that the plaintiff had not appealed against it. The Plaintiff’s argument was that the defendant could not rely on that judgment because it was given after he, the plaintiff, had begun his suit in the High Court. The trial Judge decided that the defendant could rely on that judgment, and struck out the claim.
The plaintiff lost his appeal. The Federal Supreme Court judgment is reported very shortly at p.69 of the 1958 volume. The headnote begins thus-
“The appellant in proceedings in the High Court contended that previous proceedings in the Native Court in relation to the same question created no estoppel in that the Native Court had no jurisdiction therein, the subject matter being outside its area of jurisdiction.”
The sentence is not borne out by the High Court judgment as reported. It seems, however, that the plaintiff on appeal attacked the competence of the Native Court. The following sentence is taken from the judgment on appeal:-
“The appellant in proceedings in the High Court contended that previous proceedings in the Native Court in relation to the same question created no estoppel in that the Native Court had no jurisdiction therein, the subject matter being outside its area of jurisdiction.”
The sentence is not borne out by the High Court judgment as reported. It seems, however, that the plaintiff on appeal attacked the competence of the Native Court. The following sentence is taken from the judgment on appeal:-
“There is nothing in the record to show that the Ede Native Court, to which the case was transferred for rehearing by the Oshun Division Appeal Court, had no jurisdiction to hear the case.”
Had the point been taken in the High Court that the Ede Court had no jurisdiction, there would have been some evidence in the trial court on that point. The question whether the Ede Court’s jurisdiction covered the land in dispute was one to be settled by evidence, but there was no evidence in the record. The plaintiff could not usefully argue that question on appeal without any evidence; nor could he have asked the Court of Appeal for leave to adduce such evidence on appeal because he should have adduced it in the trial Court. This seems to be the right explanation for the above-quoted sentence of the Federal Supreme Court judgment. The judgment goes on to say that-
The appellant did not appeal against the judgment in Exhibit A, it was a judgment against which he could have appealed, the judgment says so, but instead of appealing he issued out his action in the High Court.”
The meaning of the judgment seems to be this: the jurisdiction of the Native Court cannot now be attacked; its judgment, which was not appealed against, decides the title to the land in dispute; consequently the High Court was right in upholding the plea of res judicata. Be it noted that both sides agreed that the Native Court judgment covered the land in dispute.
In the case in hand there is no such agreement. The plaintiff’s claim in the Native Court was for trespass on Eneofufe Nwoliokwa; but the mere name of the land is not enlightening. The judgment is for damages for trespass, and says no more. There is nothing to show that it covers the land in dispute in the High Court. That is sufficient reason for saying that the pleas of res judicata. cannot succeed.
It is, however desirable to add that it is by no means clear why defendants Nos. 5 and 6 were bound by the Native Court judgment against defendant No. 1. It is not alleged that they were privies to him; they were not parties in that Court; there were no allegation
of facts which made them bound; and no authority was cited for the argument that they could, in certain circumstances, be bound, although they were neither parties nor privies. But no more is needed here than to draw attention to section 53 of the Evidence Ordinance, and leave the point open for argument when the occasion arises.
I would dismiss the present appeal with costs against the appellant assessed at twenty guineas.
Other Citation: (1960) LCN/0842(SC)
