Emmanuel Onwuka Umenweluaku V. Anekwe Ezeana & Ors (1972)
LawGlobal-Hub Lead Judgment Report
G. S. SOWEMIMO, J.S.C.
In suit 112/57, which was tried at the Native Court of MBAMISI, the plaintiff, who is the appellant before us claimed as against the defendants, who are the respondents, the following:
“1. Declaration of title to a portion or part of plaintiff’s father’s compound called “Obinikpa” land, dispute arose last month at Uga.
2. Plaintiff seeks an order of court to restrain defendants, their servants or/and agents from trespassing on the said land pending the determination of the title.”
In the judgment of the Mbamisi Native Court, the claim of the plaintiff was dismissed and “defendants to own their land according to plan AB 28/27”. This was on 24/1/58.
The plaintiff appealed to the District Officer’s court. On 24/4/58, the District Officer gave judgment thus:
“I set aside the Native Court Judgement. Let the two families concerned indicate their boundary, that is the boundary between the two families, which should automatically from the boundary of the pieces of land owned by plaintiff and No.3 Defendant, on the one side of UMUMEONYE family and by No.1 and No.2 Defendants, on the other side of UMUEZEANI Family. The demarcation of the boundary which shall be done by the two families to be witnessed by the Native Court which shall make the necessary arrangements.” (Underline ours)
In the records of proceedings in the District Officer’s Court, it would appear that the Judgment of the D.O. was based on an agreement between the parties. The relevant portion of the records reads:
“2. Fortunately both parties agree that the boundary is the same as the common boundary between their respective families, UMUMEONYE AND UNUEZEANI. Plaintiff and his half brother No. 3 Defendants belong to UMUONYE FAMILY and Nos. 1 and 2 defendants belong to UMUEZEANI FAMILY.”
When the parties appeared before the Native Court of Mbamisi, the opening passage of the record reads:
“Case No.112/57 Re-opened according to the appeal order after demarcation of boundary.”
It was also recorded that the representatives of the two families- Umuezeani and Umumeonye – appeared before the court and made statements which were recorded. The court then made the following summary.
“We went yesterday at Uga on the land in dispute after over 2 weeks previous notice. We met majority of both parties, family members. Umumonye family were the people who stood to watch Umuezeala to demarcate. The boundary after demarcation, 25 people of plaintiff family gave a support that the demarcation was genuine and the demarcation corresponds with the 2nd defendants’s plan thus confirming the previous judgment of the court. There were about 8 people who said they were neutral in respect of the boundary between Umuezeana and Umumonye family but they said they only know the boundary between the plaintiff and the 3rd defendant we are both from their family Umumonye. They took us to the area and demarcated the boundary and it corresponded with the previous judgment of the court. The boundary between the plaintiff and the 3rd defendants also now been demarcated as can be seen (if 3rd defendant also now been demarcated as can be seen if seen) if the place is visited. In the circumstances, we are compelled to return to an original judgment which dismissed the claim.
Judgment
“For Defendants for the land according to both parties families demarcation which supports the 2nd defendants plan No. AB 28/57.
Plaintiff’s claim is therefore dismissed” (Underlining ours)
(Sgd. ) J. J. Okpala,
For court.
The plaintiff was dissatisfied with the second judgment of the MBAMISI Native Court and filed an appeal against it. On 14/8/58, the Mbamisi Native Court was constituted as the MBAMISI District Court Grade A. The relevant legal notice is L.N. 214 of 1958 at page B 392 of the Laws of the Eastern region 1958, the relevant portion of which read:-
“In exercise of the powers conferred upon the Minister of State by Sections 3, 6, 8 and 11 of the Customary Courts Law, 1956, the following warrant is hereby issued:-
1. This Warrant may be cited as the MBAMISI District court Grade “A”, Awka Division, Warrant, 1958.
2. The MBAMISI District Court Grade “A”, Awka Division (hereinafter called the court), is hereby established.
4. Any cause or matter begun and pending immediately prior to the 14th day of August, 1958, in the Mbamisi Native Court may be continued and concluded in the court and every judgment, order or sentence in the Mbamisi Native Court may be enforced in the same manner and the same appeal, if any, shall be therefrom as if it were a judgment, order or sentence in a cause or matter originally instituted in the court established under this Law.”
By virtue of Section 61 (1) of the Customary Courts Law, 1956, appeals from either Grade ‘A’ or Grade ‘B’ District Court lie to the County court in that District and further appeal lies to the Magistrate’s Court, then to the High Court and finally to the Supreme Court.
In the instant case, the plaintiff unsuccessfully appealed to the Awka County Court, then to the Magistrate’s Court, Awka and later to the Onitsha High Court .
In the High Court, the learned counsel for the appellant contended that the Mbamisi Native Court had exceeded its jurisdiction in entering a second judgment, when after the District Officer had set aside its first judgment all that the Native Court was ordered to do was to witness the parties demarcating their agreed boundary. The learned Judge on appeal in dealing with this contention said:
“The judgment was that the boundary as demarcated was in accordance with the 2nd Respondents plan AB 28/ 57. It is argued that in going further than making arrangements for and witnessing the demarcation, they exceeded the jurisdiction conferred on them by the District Officer’s Order.
In reply, this allegation is denied, or, it is argued, that only the mode of carrying out the order was at fault. The line between an excess of jurisdiction and an improper exercise of jurisdiction is often a difficult one to draw. But in this case, I think, that the argument that the “Native Court exceeded its jurisdiction is lacking in substance and unduly technical, especially when viewed in the light of the provisions of Section 30 of the Customary Courts’ Law of 1956 (ER.No. 21 of 1956).”
It is evidence that the learned Judge on appeal did not seem to understand the contention raised before him because he referred to Section 30 of the Customary Courts Law as an answer. That section reads:
“No proceedings in a customary court and no summons. warrant, process, order or decree issued or made thereby shall be varied or declared void upon appeal solely by reason of any defect in procedure or want of form but every court or authority exercising power of appeal under this Law shall decide all matters according to substantial justice without undue regard to technicalities.”
The Appellant filed two new grounds of appeal, which by leave of the court, he was permitted to argue in substitution for the original grounds of appeal filed with the notice of appeal and which were therefore struck out. The two grounds of appeal read:
“GROUNDS OF APPEAL:
1 (a) That the judgment of the Mbamisi Native Court dated 20th June, 1958, in Suit No.112/57 was given without jurisdiction in that:
(i) the Mbamisi Native Court had concluded Suit No. 112/57 when it delivered its judgment in the case on the 24th January, 1958.
(ii) the District Officer’s Court of Appeal in its judgment in Appeal No. 8/58 which was an appeal against the judgment dated 24th January, 1958, in the Mbamisi Native Court suit No. 112/57, did not order the retrial of the said Suit No.112/57 by the Mbamisi Native Court.
(iii) no appellate court did Order the retrial of the said suit No.112/57 by the Mbamisi Native Court
(b) That as the judgment dated 20th June, 1958, in the Mbamisi Native Court Suit No. 112/57 was given without jurisdiction, the said judgment was a nullity, and the learned “appellate Judge was wrong in law in not setting aside the said judgment and all other judgments confirming it.
2. That the learned appellate Judge was wrong in sanctioning, in effect, the purported demarcation of boundary by some members of the Umuezeala and Umumonye Families as what was done was contrary to the Order of the District Officer’s Court of Appeal in the Appeal No. 8/58.”
The main contention of the Appellant’s counsel before us was that the judgment of the Mbamisi Native Court dated 20/6/58 was given without jurisdiction and therefore all subsequent judgments given on appeal were null and void. The learned counsel for the defendants/respondents had no valid answer to this contention.
It is beyond dispute that the Mbamisi Native Court could not give a second judgment as it did on 20/6/58 after the District Officer in the exercise of its appellate jurisdiction had set aside the first judgment of the Mbamisi Native Court dated 24/1/58.
In any case, all that the District Officer ordered was that the Native Court members should witness the drawing of the demarcation boundary between the two families as agreed to before him. This the Mbamisi Native Court did not do; and instead, without any authority, it proceeded to retry the whole case and to give a judgment dated 20/6/58 confirming its previous judgment of 24/1/58 which the District Officer had on appeal set aside. The County Court, the Magistrate’s Court and the High Court treated the judgment of 20/6/58 as a valid judgment and, acting on it, dismissed the plaintiff’s appeals.
The District Officer’s Court on 24/4/58, exercising its appellant jurisdiction, set aside the judgment of the Mbamisi Native Court given on 20/1/58. There was no appeal against the judgment of the District Officer’s
Court and therefore that judgment still subsists. The judgments on the purported appeal to the County Court, the Magistrate’s Court and the High Court are null and void since the Mbamisi Native Court judgment was given without jurisdiction.
In the result the appeal succeeds. The judgment of the Onitsha High Court which confirmed that of the County Court and the Magistrate’s Court cannot be allowed to stand. As the District Officer’s court only set aside the judgment of the Mbamisi Native Court on 24/4/58 but did not determine finally the rights of either party, we consider the justice of this case demands a retrial. We therefore order that this case be heard by the High Court of the East Central State which has jurisdiction in the Judicial Division where the land is situated. The Chief Justice of the East Central State will decide the appropriate court and give effect to the order of this court.
In the result we make the following orders:
(1) The judgments of the Mbamisi Native Court dated 20/6/58, that of Awka county court dated 21/5/59, that of Magistrate Court, Awka dated 9/10/59 as well as the award of 15,15s.0d. costs to the defendants/ respondents, and that of Onitsha High Court dated 28th July, 1961 as well as the award of 14.14s. 0d. costs are all hereby set aside.
(2) If any costs had been paid by the plaintiff/Appellant as ordered in any of the courts in
(1) above they should be refunded to him by the Defendants/Respondents.
(3) The claim of the plaintiff as filed in the Mbamisi Native court shall be heard de novo at the appropriate High Court in the East Central State to be decided by the Chief Justice of the East Central State.
(4) The plaintiff/Appellant is awarded costs assessed at 61 guineas in this court.
And this shall be the judgment of the court.
SC.595/1969
