Ibeakanmo Ugwajiofo & Anor V. Monago Onyekagbu (1964)

LawGlobal-Hub Lead Judgment Report

BRETT JSC

In this case the plaintiff, who described himself as suing on behalf of himself and of Isieke, Agbaobu, brought an action against the two defendants personally, claiming a declaration of title to a piece of land called Alahuhu, and £15 damages for trespass. He obtained judgment on both parts of his claim, and the defendants have appealed.

The essential question is whether the land belongs to the people of Agbaobu (otherwise spelt Abobu or Aborbor) or to the defendants’ community, which is called Amuraw, Amuror or Amuro.

The land is bounded on the East by a stream called Orieka, and on the West by another stream called Iyiachara, and it is common ground that Agbaobu own the land West of the Iyiachara stream and Amuraw own the land East of Orieka stream, but whereas the plaintiffs say that the Orieka stream is the boundary between their land and that of Amuraw the defendants say that in the area in question the boundary is the Iyiachara stream.

The plaintiffs do not claim to be in occupation of the land themselves, but say that it is occupied by a number of tenants from Aro who were put there by them, and pay tax through them. They called three of these tenants as witnesses, who supported their version of the facts. The defendants say that the Aro tenants were put there by them, but they called none of them to support their version. This was certainly evidence which would have warranted the Judge’s findings of fact, if he had accepted and relied on it.

However, while the Judge referred to the evidence of the Aro tenants in his judgment and said in general terms that he accepted the evidence adduced by the plaintiffs as being substantially true, he made it clear that in finding in favour of the plaintiffs he was relying primarily on an inference drawn, in accordance with section 45 of the Evidence Ordinance, from the decision given in a number of previous actions concerning land to the North and South of Alahuhu, and here he misdirected himself. He was of the opinion that five of the cases of which the records were produced established between them that both to the North and to the South of Alahuhu the boundary between Agbaobu and Amuraw was the Orieka stream, but in fact only two of the cases, Exhibits E and F, involved representatives of Amuraw, and they were both concerned with the land to the South. The confusion probably arose from the fact that the plaintiffs call the land to the South Okwachiricha and the land to the North Okwachara, which may have misled the Judge into thinking that the land concerned in Exhibit F was the land to the North.

The misdirection would be ground for ordering a retrial, but the defendants submit that the matter is concluded in their favour by the decision in another case, produced as Exhibit B, which they pleaded as constituting res judicata, and to which the Judge did not refer in his judgment. In that case the present plaintiffs sued the present defendants in the Otanzu Native Court for a declaration of title to the land now in dispute. They lost in the Native Court and on appeal to the District Officer and to the Resident, and later they applied to the Governor for leave to appeal out of time. On the 13th January, 1956, the Deputy Governor refused their application, but they made a fresh application, and on the 9th May, 1956, the Deputy Governor granted leave to appeal out of time, allowed the appeal and ordered a rehearing de novo.

It is submitted on behalf of the defendants that after the first application for leave to appeal out of time had been refused the Governor was functus officio, and that his Deputy no longer had power to grant a further application, but we are unable to accept this submission. An order refusing an extension of time within which to appeal is not a decision on the merits, and we do not consider that it constitutes in law an absolute bar to a further application.

The Deputy Governor had a discretion in the matter with which we cannot interfere, and we hold that he acted within his legal powers. It follows that in the present case the trial Judge was right in not giving effect to the plea of res judicata, and the case must go back for retrial.

The order of the Court will be that the judgment of the High Court of Eastern Nigeria in suit No. 0178/1956 Monago Onyekagbu versus Ibeakanma Ugwajiofo and Another is set aside, and it is ordered that the suit be retried before the High Court, each party being at liberty, with the leave of the High Court, to amend his pleadings.

The appellants are awarded costs of the appeal assessed at 100 guineas. If the costs awarded to the plaintiff in the High Court have been paid they are to be refunded, and the costs of the former trial shall await the event of the retrial.

Other Citation: (1964) LCN/1153(SC)