H.C. Okafor V. Utomi Onianwa & Anor (1964)

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BAIRAMIAN,J.S.C.

This appeal relates to a case of certiorari which was begun in the following circumstances. (For convenience the appellant will sometimes be referred to as Mr Okafor, and the respondents as the chiefs.)

The chiefs sued Mr Okafor in the Asaba Town Local Court (hereafter referred to as the native court) for a declaration of their rights in regard to certain land, and obtained judgement on 3rd September, 1957.

They say in an affidavit that Mr Okafor purported to appeal on the 8th October, 1957 to the Senior Divisional Adviser (hereafter referred to as the Adviser); Mr Okafor says in an affidavit that he posted his petition of appeal on the 30th September, 1957. What the Adviser did was this: on the 30th July, 1958, he made an order under section 28(1) (c) of the Native Courts Ordinance transferring the native court suit to the High Court, Benin, for hearing and determination; and on the 12th August, 1958, he made another order under section 28(t) (b) of that Ordinance setting aside the judgement of the native court and transferring the suit to the High Court, Benin, for hearing and determination. As under subsection (3) of section 28 such orders could not be made after the lapse of six months from the conclusion of the suit, both orders were bad; but as the order setting aside the judgement of the native court did not give the date of the judgement, the fact that the order was bad was not patent when it was received in the High Court. Its registry opened a file with the suit number Wit 02/58, In which pleadings were ordered and delivered. Afterwards the chiefs obtained leave ex parse and then put in a motion on notice for an order of certiorari to remove into the High Court and to quash the Adviser’s orders in the Asaba Town Local Court suit No. 88/57. Their aim was to get rid of those orders so as to reinstate and restore the native court judgment; and their other aim was to get rid of the suit W/102/58, which would be got ride of as the result of having those orders quashed and the native court judgment reinstated. Counsel for Mr Okafor in the High Court knew that those were the aims and made every effort to persuade the learned trial Judge (Stephen Thomas, J., as he then was) not to do anything which would restore the native court judgment and get rid of suit W/102/58. The learned Judge wrote as follows in his judgment:

“Both Orders were made in contravention of the Native Courts Ordinance and were therefore invalid. The Senior Divisional Adviser lacked jurisdiction and the Judgement of the Asaba Town Local Court is therefore still subsisting.

I will therefore set aside both Orders as prayed. The suit in the High Court is hereby struck off as it cannot proceed whilst the Judgement of a competent Court of Record has not been set aside. The fact that the parties have filed pleadings in the Suit in the High Court is beside the point. The High Court is a creature of statute and its processes must comply with its statute in every case.”

The present appeal is from that judgment.

The grounds of appeal allege error in law without stating the particulars and the nature of the error, and are vague besides; and we must deprecate them; but no objection was taken, and It will be useful to deal with the arguments.

One argument is that as the Native Courts Ordinance had been repealed in the Western Region, the trial Judge should not have looked at it. That argument overlooks the fact that the repeal of a law does not affect anything done in the days when k was in force; the High Court was entitled to look at the Ordinance. Counsel for the appellant concedes that the orders, when looked at in the light of the said Ordinance, were bad and had to be quashed.

Even so he objects to the statement in the judgement that the decision of the native court is still subsisting. That is the heart of the matter. But the effect of quashing the Adviser’s orders is to reinstate and restore that decision, so the objection must fail.

The other effect of quashing the Adviser’s orders is to take away the foundation of the Suit W/102/58, with the result that the suit collapses and cannot proceed; and there can be no question of asking the High Court to hear that suit.

In this regard, the appellant’s learned counsel has argued that the trial Judge .erred in striking off that suit as part of his decision in the certiorari proceedings. He concedes, however, that the striking off was the inevitable consequence of quashing the Adviser’s orders. The argument merely means one more proceeding which can serve no useful purpose. The learned Judge saved the need for R by making the inevitable consequential order of striking off Suit W/102/58 in the certiorari proceedings. What we venture to recommend is that the judgement now under appeal be drawn up formally, and an office copy of the formal judgement be filed In Suit W/102/58

It is ordered as follows:

The appeal of Henry Chukuemeka Okafor from the High Court Judgment in the Benin Suit M/1 /1959 dated 8th June, 1961 be and the same is hereby dismissed with thirty-three guineas costs to be paid by him to the respondents to the app.

Other Citation: (1964) LCN/1113(SC)