Oba Lawani Aladegbemi V. Oba John Fasanmade (1988)
LawGlobal-Hub Lead Judgment Report
G. O. AGBAJE, J.S.C.
The Plaintiff, Oba Lawani Aladegbemi Alaye of Efon Alaye-Ekiti, for himself and on behalf of all the Chiefs and people of Efon Ekiti, sued the defendant, Oba John Fasanmade Oba of Ido-Irapa, for himself and on behalf of all the chiefs and people of Ido-lrapa Ekiti, in 1974 in the then Western State High Court of Justice in the Ado-Ekiti Judicial Division holden at Ado-Ekiti claiming against him as follows:-
“The Plaintiff’s claim is for a declaration that the Defendants, as Customary tenants to the Plaintiffs on the plaintiff’s land at Ido Gongo and Ido-Irapa in Ekiti West Division of Western State of Nigeria over which land the Plaintiffs have got judgment against the Defendants, should under native law and custom continue to pay to the Plaintiffs Ishakole (annual customary tribute) as outlined hereunder and in accordance with the ancient custom:-
viz:-(a) during Olokun Festival:-
i. 20 tins of palm oil at the current value
ii. 6 bags of beans at the current value
iii. 1,000 walnuts at the current value
iv. 500 kolanuts at the current value
viz:-(b) during Ikori Festival:-
i. a big ram at the current value
ii. 200 yams at the current value
iii. 500 kolanuts at the current value
Or in the alternative that the tenants’ interest over or in respect of the land as customary tenants be forfeited.”
Pleadings were ordered on 14th February, 1974. The Statement of claim was duly filed. A statement of defence with a counter-claim was filed. The counter claim was in the following terms:-
“The defendant repeats each and every statement of fact contained in paragraphs 1 to 34 inclusive, hereof and claims from the plaintiff:
(i) A DECLARATION that the Order of transfer of the appeal before the Resident’s Court in the Suit grounding this claim is null and void and therefore the High Court (Dolumo, J.) had no jurisdiction to hear and determine the suit of which he became seised by virtue of a transfer which was null and void – the whole proceedings and judgment before Delumo, J. in Suit AK/49/59 being therefore a nullity.
(ii) A DECLARATION that the subsisting judgment and order are those of the Resident made on 3rd October, 1950.
(iii) AN ORDER directing that the said Order of the Resident be forthwith carried out.”
Leave was granted to file a reply with a defence to counter claim to the statement of defence with the counter claim.
Actual hearing of the case did not begin until sometime in May 1978 and by then Ondo State had been carved out of the Old Western State with Ado Ekiti being part of Ondo State. So the case was heard in the Ondo State High Court of Justice and in the Ekiti Judicial Division by Adeloye J., as he then was. Giving his judgment in the case the learned trial Judge held as follows:”
It is apparent that the issue being re-opened in this court is the same as was dismissed by the Supreme Court. Defendant’s Counsel has not shown me an authority which confers jurisdiction on this court to review the Supreme Court decision in an application of this nature. I cannot, myself, find such an authority. I hold that this court has no jurisdiction to make any findings or pronouncement on this case since it has been finally put to rest on February 8, 1974. The defendant is at liberty to relitigate the issues before the Supreme Court by an application to that court, not by urging a High Court or any other court of inferior jurisdiction to re-open that which the Supreme Court had sealed. I hold that all the issues raised by the defendant in the present action have been decided by the court of Delumo J; and as far as this court is concerned they are res judicata. There is already a valid appeal before the Supreme Court. Any issues arising during the pendency of the said appeal, could only be pursued at the Supreme Court level.
The issue left undecided is the quantity of the homage payable. The defendants denied that they had ever paid any homage of “Ishakole” to the plaintiffs. The court decided that they must pay the homage.
In the absence of any evidence challenging the quantity of each article claimed, I have no alternative but to accept plaintiffs quantification. In the result the defendants are ordered to pay homage or Ishakole as claimed by the plaintiffs.”
The implication of this judgment is that the plaintiff’s claims succeeded and that the defendant’s counter-claim failed.
At this stage I have to set down the facts and the circumstances culminating in the judgment of Delumo J. on 20th April, 1963 in suit No. AK/49/59 upon which the plaintiff based his claims and in respect of which the defendant sought the declarations in his counter-claim.
Suit No. AK/49/59 originated as case No. 5/47 in the Native Court of Ekiti Division between Alaye of Efon on behalf of the people of Efon as plaintiff and J.O. Fasan Bale of Ido-Irapa as defendant (representing Ida Irapa people). It is common grounds as follows:-
(i) That court found that the defendant therein was not customary tenant of the plaintiff and then partitioned the land in dispute between them both in its judgment dated 20th November, 1947.
(ii) Both sides were not satisfied with the decision and appealed against it to the Court of the District Officer which first sent the case back to the Divisional court for clarification of its judgment and that having been done and duly communicated to the court of the District Office the latter gave its judgment in July 1948 whereby the Order partitioning the land was affirmed;
(iii) The defendant was not satisfied with the judgment and so appealed against it to the Resident’s Court;
(iv) In the Resident’s Court, an arbitration commission to which both sides agreed was set up, and it gave its findings in July, 1950.
(v) On the assumption that the findings of the Arbitration Commission were binding on all concerned, the Resident by his judgment of October, 1950 ordered the Divisional Court to demarcate the boundary as defined by the Arbitration Commission;
(vi) By a letter dated 31st January, 1951 addressed to the Chief Commissioner the plaintiff purported to appeal to the Court of the Governor of Western Provinces against the decision of the Resident’s court.
(vii) The Chief Commissioner, Western Provinces gave the judgment of the Court of the Governor Western Provinces on 21st April, 1951. In the judgment after reviewing the antecedents of the case on appeal before him, he held as follows:-
“It is obvious, however, from reading the order of the Resident’s Court which was made in August 1948, that any award made by the Commission would have to be acceptable to both parties. It is equally dearth at Plaintiff never did accept the commission’s findings.
The order of the Resident’s Court which was made on October 3rd 1950, must be, and is hereby, set aside. Furthermore, in view of the complex nature of this case and the legal problem involved, I order that the case be transferred to the Supreme Court. Each party will bear his own costs.”
(viii) The case was then transferred to the old Supreme Court of Nigeria in the Benin Judicial Division holden at Benin City where it was numbered suit No.B173/1951.
(ix) Manyo Mango J. ordered pleadings in the case on 16/9/52;
(x) Pleadings were duly filed
(xi) On 22nd April, 1954 the matter came on before Hedges J. (as he then was) in the Supreme Court of Nigeria and in the Benin Judicial Division but now holden at Akure.
(xiii) The following transpired in Court on that day:-
“SUIT NO. B/73/51
BETWEEN:
THE Alaye of Efon, on
behalf of the people of
Efon…………. Plaintiff
Vs.
J. O. Fasan Bale of Iddo Irapa
representing the people of Iddo-
Irappa…………….Defendant.
Parties present.
H. O. Davies for the Plaintiff.
Akerele for the Defendant.
H. O. Davies asks that issues be settled.
Akerele raises preliminary objection.
Case not properly before the Court because the original trial in the Native Court was a nullity and there was therefore nothing for the Chief Commissioner to Transfer. Davies replies that the Chief Commissioner was acting in his appellate jurisdiction and as such had power to Transfer under section 40 of Native Courts Ordinance. Any objection to the proceedings in the Native Court should have been raised on appeal before the Chief Commissioner.
RULING:- There is a valid order of transfer and this court has jurisdiction.
(Sgd.) R. Y. Hedges.”
(xii) The case was adjourned sine die on 16/8/54by Hedges P. J. as he then was and by the time it was put on the cause list for hearing on 27/2/56 the High Court of Justice of Western Region of Nigeria had been created so the case was listed in the Benin Judicial Division of that Court holden at Ado-Ekiti with the same suit number.
(xiii) On that day the suit was struck out for non- appearance of the plaintiff.
(xiv) After some protracted proceedings, the case was restored to the cause list on 312/60 in the Akure Judicial Division as suit No. AK/49/59,
(xv) The case was eventually tried by Delumo J. who after hearing the parties and their witnesses gave judgment for the plaintiff on 20/4/62.
(xvi) The defendant appealed against the judgment to the Supreme Court, but withdrew the appeal when settlement of the whole case out of court was in the offing, and consequently his appeal was dismissed.
(xvii) When settlement of the case out of court broke down, the defendant applied unsuccessfully to the Supreme Court to relist his appeal.
Having set down the facts and the circumstances relating to suit AK/49/59, I should also refer now to the relevant statutory provisions dealing with (a) appeals from the Resident’s Court to the Court of the Governor of Western Provinces and (b) the relevant power on appeal of the Court of the Governor of Western Provinces and (c) the Jurisdiction of the old Supreme Court of Nigeria.
As to (a), appeals from the Resident’s Court to the Governor’s Court, I refer to sections 31(3) and 37 of the Native Courts Ordinance Cap. 142 Vol. IV Laws of Nigeria 1948:-
“31(3) Any person aggrieved by any order or decision of a Resident, made or given upon appeal from a district officer or from a native court or a native court of appeal may within thirty days from the date of such order or decision appeal to the Governor, who may in his discretion after taking such action as he may consider necessary decide the appeal without hearing the parties.”
“37. Leave to appeal out of time to any court (including the Governor, the Resident and the district officer, sitting in the exercise of their appellate jurisdiction under this Ordinance) may, except in the case of capital offences, be given by such court upon such terms as to such court shall seem just.”
As to (b), the relevant power on appeal of a Governor’s court, I refer to 40(2) of the same Ordinance:-
“The Lieut. Governor in the exercise of his appellate jurisdiction under this Ordinance may order a cause or matter to be reheard before the Supreme Court.”
As to (c), the jurisdiction of the Supreme Court of Nigeria, I refer to Sections 11 and 12 of the Supreme Court Ordinances Caps. 211 Vol., VI Laws of Nigeria 1948:-
“11. The Supreme Court shall be a superior court of record, and in addition to any other jurisdiction conferred by this or any other Ordinance or any Law shall, within the limits and subject as in this Ordinance mentioned, possess and exercise all the jurisdiction, powers and authorities which are vested in or capable of being exercised by His Majesty’s High Court of Justice in England.
- Subject to such jurisdiction as may for the time being be vested by Ordinance in native courts, the jurisdiction by this Ordinance vested in the Supreme Court shall include all His Majesty’s civil jurisdiction which at the commencement of this Ordinance was, or at any time afterwards may be exercisable in Nigeria, for the judicial hearing and determination of matters in difference, or for the administration or control of property and persons, and also all His Majesty’s criminal jurisdiction which at the commencement of this Ordinance was, or at any time afterwards may be there exercisable for the repression or punishment of crimes or offences or for the maintenance of order; and all such jurisdiction shall be exercised under and according to the provisions of this Ordinance and not otherwise. Provided that, except in so far as the Governor in Council may by order otherwise direct and except in suits transferred to the Supreme Court under the provisions of section 25 of the Native Courts Ordinance, the Supreme Court shall not exercise original jurisdiction in any suit which raises any issue as to the title to land or as to the title to any interest in land which is subject to the jurisdiction of a native court relating to marriage, family status, guardianship of children, inheritance or disposition of property on death.”
I can now go back to the decision of Adeloye J. as he then was, in the case now before us on appeal. The defendant appealed against the decision to the Court of Appeal Benin Division. That Court coram Eboh, Ete, Ikwechegh, JJ.C.A. allowed the defendant’s appeal. In doing so, as per the lead judgment of Ete, J.C.A. to which other Justices agreed, that court posed for itself this question:-
“As I see it, the whole of the case before us lingers on one pertinent question, and that is, whether the transfer of the case by the Chief Commissioner to the Supreme Court (High Court) was valid or whether it was void.”
And in answer to it that court said:-
“As I have set it out above Mr. Akanle’s reply on the argument of nullity of the transfer of the case by the Chief Commissioner to the Supreme Court is that Hedges J’s ruling had settled that question once and for all. He submitted further that there was no appeal against that ruling. Chief Chukura’s answer is that the ruling was based on a totally different aspect of the case and not on the nullity arising from appeal out of time. I am inclined to agree with learned counsel to the appellants. I believe that on the authorities available, if an act is a nullity, it cannot be waived or acquiesced in or consented to because ex nibllo nihil fit. With respect, I fail to see the logic in the learned Judge’s ruling that Hedges J’s ruling covered the issue of nullity arising from wrong transfer of the case, when that issue was never before Hedges J. Counsel for the respondents argues that there was no appeal against Hedges J’s ruling or Delumo J’s judgment. Do we then take it that because there was no appeal, therefore what is null and void becomes valid and legal I would think not. In the result, I hold the view that the ruling of Hedges J., cannot give rise to a defence of estoppel per rem judicatam since the Chief Commissioner’s transfer of the case to the Supreme Court was a void act and therefore a nullity. It must therefore be conceded that all other suits which are based on the void transfer are themselves nullities. These suits are that before Delumo J., those in the Supreme Court and that of Adeloye J.”
On the point of the dismissal of the appeal of the defendant by the Supreme Court in the circumstances I have stated earlier on in this judgment the lower court, Court of Appeal, held as follows:-
“Consequent upon the application to withdraw the appeal, the Supreme Court actually dismissed the appeal. When the appellants realised that they had been hoodwinked by the respondents into withdrawing their appeal they applied to the Supreme Court for its re-instatement but the court refused. Thus the respondents went home feeling, no doubt, very pleased with themselves for outsmarting the appellants. It is clear to me that the respondents’ victory at the Supreme Court was not on the merits of the case but that it was based on bad faith on the part of the respondents. This is one further good reason why this appeal should be tested, if necessary, right up to the highest court of the land. This appeal therefore succeeds on grounds 1 and 2 argued.”
In the end, the Court of Appeal made the following orders:- “The most appropriate order to make in the circumstances of this case is a retrial of the original claim i.e. the one before Delumo J., before another Judge, and I so order. The reason, as I have endeavoured to show in my judgment, is because the trial before Delumo J, and Adeloye J. were nullities. The judgment of Adeloye J. appealed from and the consequential orders made therein are hereby set aside by me.”
Both the plaintiff and the defendant were not satisfied with the judgment. The plaintiff has appealed against the whole of the judgment. The defendant for his part has appealed against the order for the retrial of the original claim i.e. the one before Delumo J in the High Court.
Briefs of arguments were filed in respect of both the appeals, and issues for determination in both appeals arising from the grounds of appeals in the appeals have been identified in the briefs. In the circumstances it will be otiose to refer again to the grounds of appeals.
I will deal first with the defendant’s appeal because the answer to the question whether the court of Appeal, the lower court can properly make the order for retrial appealed against appears very clear to me.
The finding of the learned Justices of the Court of Appeal that the Chief Commissioner’s transfer of the case tried by Delumo J. to the old Supreme Court was void and therefore a nullity and of no effect, on the one hand, and the order for the retrial by the Court of Appeal of the same case by the High Court, which is the same Supreme Court differently called on the other hand are a contradiction in terms. Because of the proviso to Section 12 of the Supreme Court Ordinance which I quoted above, the Supreme Court and its successor would have no jurisdiction to try suit No.B/73/51 (later suit No. AK/49/59) in the absence of a valid order by the Chief Commissioner transferring the case to the Supreme Court. Once the Court of Appeal held the transfer was void and invalid and a nullity, it meant that the court had ruled that the Supreme Court or its successor. The High Court had no jurisdiction to adjudicate on the case. It follows that the Court of Appeal cannot then later in its judgment validly clothe the High Court, the successor of the Supreme Court, with jurisdiction to retry the case. The order for retrial for this reason is evidently wrong.
It is wrong for another equally weighty reason namely suit No. AK/49/59 was not before the lower court, the Court of Appeal, on appeal. So in respect of that case that court, the Court of Appeal, cannot exercise any of the powers possessed by it – including that of ordering a retrial – in its appellate jurisdiction. See section 269 of the Constitution of the Federal Republic of Nigeria 1979 and section 16 of the Court of Appeal Act 1976. The latter inter alia says “The Court of Appeal in case of an appeal from the court below, in that court’s appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction.”
In my judgment therefore the order for retrial of suit No.AK/49/59 in the High Court cannot be defended and in fact it was not defended by either of the parties to this appeal. I will not say anything more on this order for now.
I will proceed now to the consideration of the plaintiffs appeal. The is sues arising for determination in this appeal according to counsel for the plaintiffs are:-
- Whether the Court of Appeal could now re-open for fresh determination the decision of Hedges J. that the High Court had jurisdiction to hear the case as transferred by the Chief Commissioner.
- Is a party to an action who fails or refuses to put forward his whole case to be permitted in subsequent proceedings to raise new grounds which he might have, but did not rely upon in the first action
- Was the decision of the Supreme Court in AK/49/59 on appeal not on the merits
- Was the trial of the case now on appeal in the High Court a nullity
- Whether there was any admissible evidence to support the findings of fact by the Court of Appeal that the plaintiffs appeal from the Resident’s court to the Court of the Governor of Western Province was out of time.
It will appear from the defendant’s brief of arguments that counsel for both sides are agreed as to the issues arising for determination in this appeal and the issues are as I have stated them above.
I will take issue one first, which is whether the Court of Appeal could rightly pronounce in these proceedings on the validity of the order of the Chief Commissioner transferring suit No.AK/49/59 to the Supreme Court an issue which Hedges J. as he then was, had rightly or wrongly resolved in
that case.
The submissions of Counsel for the plaintiffs on this point are as follows. Counsel submitted that by virtue of being a Judge of a superior court of record Hedges J. clearly had jurisdiction to decide whether or not he had jurisdiction to hear the case as transferred to the Supreme Court in which he then sat. He went on to say that even if he Hedges J. were wrong in the decision that he came to, his decision would still be conclusive and could only be reversed on an appeal from that decision. Counsel relied on Isaacs v. Rovertson (1984) 3 W.L.R. at 709 for these submissions of his.
At page 709 of the report of the case is the following passage from the opinion of the Privy Council in the case delivered by Lord Diplock and it is on this passage that Counsel relied heavily:-
“Their Lordships would, however, take this opportunity to point out that in relation to orders of a court of unlimited jurisdiction it is misleading to seek to draw distinctions between orders that are
“void” in the sense that they can be ignored with impunity by those persons to whom they are addressed, and orders that are “voidable” and may be enforced unless and until they are set aside. Dicta that refer to the possibility of there being such a distinction between orders to which the descriptions “void” and “voidable” respectively have been applied can be found in the opinions given by the Judicial Committee of the Privy Council in the appeals Marsh v. Marsh (1945) A.C. 271,284 and Macfoy v. United Africa Co. Ltd. (1962) A.C. 152, 160; but in neither of those appeals nor in any other case to which counsel has been able to refer their Lordships has any order of a court of unlimited jurisdiction been held to fan into a category of court orders that can simply be ignored because they are void ipso facto without there being any need for proceedings to have them set aside. The cases that are referred to in these dicta do not support the proposition that there is any category of orders of a court of unlimited jurisdiction of this kind; what they do support is the quite different proposition that there is a category of orders of such a court which a person affected by the order is entitled to apply to have set aside ex debito justitiae in the exercise of the inherent jurisdiction of the court without his needing to have recourse to the rules that deal expressly with proceedings to set aside orders for irregularity and give to the Judge a discretion as to the order he will make. The Judges in the cases that have drawn the distinction between the two types of orders have cautiously refrained from seeking to lay down a comprehensive definition of defects that bring an order into the category that attracts ex debito justitiae the right to have it set aside, save that specifically it includes orders that have been obtained in breach of rules of natural justice.
The contrasting legal concepts of voidness and voidability form part of the English law of contract. They are inapplicable to orders made by a court of unlimited jurisdiction in the course of contentious litigation. Such an order is either irregular or regular. If it is irregular it can be set aside by the court that made it upon application to that court; if it is regular it can only be set aside by an appellate court upon appeal if there is one to which an appeal lies.”
In reply Counsel for the defendant submitted as follows:-
that an adjudication which is a nullity can be attacked on every occasion when it is put in issue. He referred in this respect to:
(1) the case of Udenta v. Chukwunta (1959) 3 E.N.L.R. 44 at page 45 the High Court of the Eastern Region, where Onyeama Ag. J. as he then was, held that a decision given without jurisdiction could be attacked at any time and did not create the necessity for an appeal;
(2) Section 52 of the Evidence Act which stipulates:-
Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Sections 48, 49 or 50 and which has been proved by the adverse party was delivered by a Court without jurisdiction or was obtained by fraud or collusion.”
(3) Obikoya v. Registrar of Companies (1975) 4 SC. 31; and
(4) Macfoy v. U.A.C. Ltd. (1961) 3 W.L.R. 1405.
Section 11 of the Supreme Court Ordinance which I have reproduced earlier on in this judgment provided that the Supreme Court to which it related was a superior court of record. But section 12 of the same ordinance unlike section 236 of the Constitution of Federal Republic of Nigeria 1979 did not say the Supreme Court was a court of unlimited jurisdiction. In fact the proviso to the section excluded original civil jurisdiction in the Supreme Court in any suit which raised any issue as to the title to land or as to the title to any interest in land which was subject to the jurisdiction of native court or in any matter which was subject to the jurisdiction of a native court relating to marriage, family status, guardianship of children, inheritance or disposition of property on death except in so far as the Governor in Council might by order otherwise direct and except in suits transferred to the Supreme Court under the relevant provisions of the Native Courts Ordinance. So, although the Supreme Court in question was a superior court of record it did not possess unlimited jurisdiction to hear and determine any civil proceedings. If it did adjudicate on any civil proceeding not within its jurisdiction, the whole of the adjudication including its judgment in it would be void and a nullity. Because the Supreme Court in question was not a court of unlimited jurisdiction as I have just shown, the pronouncements in the passage from Isaacs v. Rovertson (supra) which relate to courts of unlimited jurisdiction do not in my judgment apply to the case in hand where the jurisdiction of the trial court in AK/49/59 was, and is now, called in question.
So I am of the view that Mr. Chukurah S.A.N. was right when he submitted relying on section 52 of the Evidence Act copied above, that the defendant could plead in this case that Suit No. AK/49/59 which was pleaded by the plaintiff against the defendant as estoppel was delivered by the court in question without jurisdiction, the fact that no proceedings had been taken to set the decision aside notwithstanding. For the latter proposition I refer to Timitimi v. Amabebe (1953) 14 W.A.C.A. 374 cited to us by Chief Chukurah S.A.N.
However there is section 53 of the Evidence Act which says:-
“Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the court, and appearing from the judgment itself to be ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.”
The provisions of this section are very relevant to issue (1) which I am now discussing.
The Supreme Court in question as I have shown is a superior court of record. Being a superior court of record, Mr. Ajayi S.A.N. submitted to us, the Supreme Court had jurisdiction to decide whether or not it had jurisdiction to hear suit B/73/51, later suit AK/49/59. He placed reliance on the following authorities:-
(1) Halsbury Laws of England 4th Edition Volume 10 at paragraph 713 where the following appears:- “Limits of Jurisdiction. The chief distinction between superior and inferior courts are found in connection with jurisdiction. Prima facie, no matter is deemed to be beyond the jurisdiction of a superior Court of Record unless it is expressly shown to be so., while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court.”
(2) The same work paragraph 714 at page 322 which says:-“Another distinction between superior and inferior courts is that while the unreversed judgment of a superior court is conclusive as to all relevant matters decided by it, the judgment of an inferior court involving a question of jurisdiction is not final.”
(3) a decision of this court in Barclays Bank Limited v. Central Bank of Nigeria (1976) 6 S.C. 175.
I have no doubt on the authorities just referred to that the Supreme Court in question being a Superior Court of record had jurisdiction to decide whether it had jurisdiction to hear suit AK/49/59. So a decision by the Supreme Court as to whether it had jurisdiction not to try suit B/73/51 later suit AK/49/59 would have been made if made by court of competent jurisdiction.
In Skinner v. Carter 1948 1 Ch.387 it was held that an order made by a court of competent jurisdiction even in ignorance of same essential fact which went to the validity of the order was not void or a nullity and the order stood and could not be ignored until it was set aside.
There is no doubt that Hedges J. as he then was, ruled on 22/8/54 on a preliminary objection as to the jurisdiction of the Supreme Court to try suit B/73/51, later AK/49/59 as follows:- “There is a valid order of transfer and this court has jurisdiction.” Hedges J. was competent to entertain the objection on the point of his court’s jurisdiction and to rule on it, having regard to the authorities I have referred to above.
In the circumstance the ruling by Hedges J on the point of jurisdiction was a ruling by a court of competent authority. His decision is equally valid, whether it is right or wrong until it is reversed on appeal. See Skinner v. Carter (Supra) and Anisminic Ltd. v. Foreign Compensation Commission (1969)2 A.C. 147 at 171.
The decision of Hedges J on the validity of the Chief Commissioner’s transfer order and the jurisdiction of the Supreme Court to try suit No. B/73/51 (later suit AK/49/59) has not been reversed on appeal. So that decision ordinarily should have concluded the point on the issue of the jurisdiction of the Supreme Court in the case. But then Counsel for the defendant Chief Chukura S.A.N. took the point that the preliminary objection as to jurisdiction upon which Hedges J. ruled was not based on the point upon which the objection to the jurisdiction of the Supreme Court was now being founded, namely, that there was no real appeal pending in the court of the Governor of Western Province at the time the Chief Commissioner transferred the case to the Supreme Court. Chief Chukurah contended there was no real appeal in the Governor’s court because the purported appeal was lodged out of time and no order extending time to appeal had been obtained at any time. So Counsel submitted the issue now being raised is different from the one Hedges J. decided, although both issues have to do with jurisdiction of the Supreme Court to entertain Suit AK/49/59.
This point was raised before Adeloye J. as he then was in the trial court. The learned trial Judge rejected it by holding as follows:-
“Much as it could be argued that the issue invalidating transfer raised before Hedges J. is different from that which is now being contended by learned counsel I hold the view that the ruling by the learned Judge that there was a valid order of transfer covers not only the question of original trial in the Native Court but also all points properly belonging to or might be raised to invalidate transfer. See the Case of A. G. Ijale vs. A. G. Leventis & Co. Ltd. (1961) 1 All NLR page 762.”
However when the same point was renewed in the Court of Appeal, it found favour with that court. What Ete J.C.A. in the lead judgment of that court held I had reproduced earlier on in this judgment. I need not set it down again.
The second issue arising for determination in this appeal has to do with the above finding of the Court of Appeal. It is the submission of Mr. Ajayi S.A.N. to us that the trial court was right and the Court of Appeal was wrong on the point at issue. He relied on section 53 of the Evidence Act and the case of Ijale v. A.G. Leventis (Supra) upon which the trial court relied. Mr. Ajayi S.A.N. pointed out to us that Ijale v. Leventis a decision of a Lagos High Court was based on the case of Hopstead v. Commissioner of Taxation (1926) A.C. 155. The following passages in the judgment of the Full Court (Knox C. J. Starke and Higgers JJ) in the case are relevant to the point at issue. First at page 170 and second page 171.
First: “It is seen from this citation of authority that if in any Court of competent jurisdiction a decision is reached, a party is estopped from questioning it in a new legal proceeding. But the principle also extends to any point, whether of assumption or admission, which was in substance the ratio of and fundamental to the decision. The rule on this subject was set forth in the leading case of Henderson v. Henderson (1) by Wigram V. C. as follows: “I believe I state the rule of the Court correctly when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.” This authority has been frequently referred to and followed, and is settled law.”
Second:
“but in a case like the present, where there are no pleadings at all, the main question is whether a prior opportunity of raising the point now foreclosed by estoppel had in substance arisen and been passed by. In short, the present point was one which, if taken, went to the root of the matter on the prior occasion, so that its omission was no mere default in pleading but a real attempt to divide one argument into two and to multiply litigation.”
(Italics mine.)
In reply Chief Chukura S.A.N. submitted that a case or an issue is decided on the particular matters actually contended and a decision should not be stretched beyond what is actually decided. According to Chief Chukura S.A.N. this is what Section 53 of Evidence Act provides for and that Ijale v. Leventis was decided on the provisions of Section 53 of the Evidence Act. Chief Chukura then reminded us of his submissions in the trial court and in the Court of Appeal which related only to the validity of transfer order of the Chief Commissioner on the basis that no proceedings were pending there by reason of the fact of an incompetent appeal in the Governor’s court and not on the lack of jurisdiction in the Chief Commissioner to make the transfer order.
Section 53 of the Evidence Act relates to estoppel by record. So the estoppel, counsel for both sides submitted to us, must relate to an issue decided in the previous suit relied upon as estopping a party from raising the issue in a subsequent proceeding. Counsel for both sides are also agreed that Hedges J. decided in B173/51 (later AK/49/59) the issue as to the validity of the transfer order in question and the jurisdiction of Supreme Court (High Court) to try the case. It is even common ground in this case that the ground upon which Hedges J. decided the issue of jurisdiction was different from the ground upon which the defendant is now challenging the validity of the transfer order. The bone of contention is whether in view of the last fact I have just mentioned the decision of Hedges J. in question would or would not operate as an issue of estoppel on the validity of the transfer order and, consequently, on the jurisdiction of the Supreme Court (High Court) to try suit AK/49/59.
I think the point at issue is covered by the case of Hoystead v. Commissioner of Taxation (Supra). The present point now being taken by counsel for the defendant no doubt goes to the jurisdiction of the Supreme Court (High Court) to try suit AK/49/59. The point as to whether the Supreme Court (High Court) had jurisdiction in the matter had been previously raised by the defendant in suit AK/49/59. So the defendant had the opportunity of raising the point in suit AK/49/59 and in fact took the opportunity. But his argument on the issue was rejected then. What the defendant is in essence trying to do now is to bring a new argument in support of his contention of lack of jurisdiction in the Supreme Court (High Court) to try suit AK/49/59, a contention he had raised right from the time AK/49/59 got to the Supreme Court. Haystead v. Commissioner of Taxation (Supra) has decided it that in the circumstances the previous decision on the point of jurisdiction will operate as an issue of estoppel thereby preventing an attempt to divide one argument into two and to multiply litigation.
In effect, I agree with the trial court that the decision of Hedges J. created an issue of estoppel and that the Court of Appeal was wrong to hold otherwise.
I have reached my decision on the point of estoppel without having to examine the case of Macfoy v. U.A.C. Ltd. (1961)3 W.L.R. 1405. In so far as the case was cited by counsel for the defendant Chief Chukurah in support of his submission that the decision in AK/49/59 if given without jurisdiction would be a nullity and since I have in this judgment accepted that submission by reference to a decision of the old Western African Court of Appeal and to our statute law, I am no longer impelled to consider what Macfoy v. U.A.C. (Supra) decided and whether or not I would have followed it in arriving at my decision in this case.
What I have said above is enough to dispose of this appeal. However, I am constrained to express my opinion on issues (4) and (5) arising for determination in the plaintiffs’ appeal since we heard arguments on the points.
I shall take issues 5 first which is concerned with the question whether or not there was admissible evidence in this case now on appeal before us showing that the plaintiff’s appeal from the Resident’s Court to the Governor’s court was lodged out of time. It is the submission of counsel for the plaintiff that in this case we have only oral evidence for it as to the date the decision of the Resident’s court was given as well as the date the plaintiff appealed against the judgment to the Governor’s court. As regards the date the judgment was given, counsel for the plaintiff is not correct that there was only oral evidence on the point. For a certified true copy of the judgment of the Governor’s court which contained the transfer order which is being questioned in this case was put in evidence. And the judgment gave 3rd October 1950 as the date the judgment of the Resident’s court was given. That is evidently admissible evidence as to when the judgment was given.
As to the date the plaintiff appealed from the decision of the Resident’s court to the Governor’s court it is true we have only the oral admission in the witness box of the plaintiff for it that the appeal was initiated by him by a letter dated 31st January, 1951. It is the submission of counsel for the plaintiff Mr. Ajayi S.A.N. that this oral evidence is inadmissible in proof of the date the plaintiff’s appeal to the Governor’s court was lodged, it being the case that the appeal has been reduced into writing what has, thereafter, by virtue of being a court’s process, acquired the character of a public document in respect of which the only secondary evidence admissible in proof of its contents including its date is a certified true copy thereof. Counsel relied on Section 24 of the Evidence Act which says:-
“Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the provisions of Part V, or unless the genuineness of a document produced is in question.”
Counsel no doubt had in mind too sections 131(1) and 96 (1) (e) and 96(2)(c) of the Evidence Act the combined effect of which is that the only secondary evidence admissible in respect of the original of a public document is a certified true copy of that document.
On this point the lower court, the Court of Appeal, held that it was too late in the day for counsel for the plaintiff to challenge the date the defendant contended the plaintiff appealed to the Governor’s court i.e. 31st January, 1951.
The Court of Appeal held this view because the date the appeal in question was lodged was pleaded in the defendant’s Statement of defence and was not traversed by the plaintiffs and the Plaintiff himself in his evidence in court admitted the date. Counsel for the plaintiff answered this view of the lower court by saying that the law in this regard is that a fact pleaded in the statement of defence is deemed to be put in issue by a plaintiff who does not file a reply and is therefore in effect traversed. This may well be so but counsel must have forgotten when dealing with the point at issue that in the instant case there is a statement of defence with a counter-claim and the fact in question was pleaded in respect of the counter-claim. To that extent the fact becomes a fact pleaded in statement of claim, which must be traversed before any issue can be raised as to that fact. So the trial court and the Court of Appeal could not help but hold that in the circumstance that fact is admitted, and consequently there is no further need for its proof. See the case of N.H.D.S. v. MUMUNI 1977 S.C. 2 S.C. 57. So there is no need to have recourse to the Evidence Act as to the proper manner to prove the point in question. Accordingly I hold that the Court of Appeal was right in its view that I have just considered. Consequently I reject the submission of counsel for the plaintiff that there was inadmissible evidence as to the date the plaintiff filed his appeal from the Resident’s Court to the Governor’s court. This does mean that I have come to the conclusion that on the material available in this case the Court of Appeal could have properly held that the plaintiff’s appeal to the Governor’s court was lodged outside of the statutory period of 30 days prescribed by section 31(3) of the Native Court Ordinance.
This court has held in suit No. SC.31/1986 between Ohuka and others and The State, reported in (1988)1 NWLR Pt.72 p.539 that time within which to appeal does not begin to run against an appellant until the appellant has notice of the decision he is complaining about. In the course of arguments in this appeal it transpired that the only evidence as to how the plaintiff was notified of the decision of the Resident’s court was from the plaintiff alone and this was what he said in this regard:-
“The decision of the Resident was communicated to us by a letter. I don’t remember on which date we received the letter.”
Added to this is paragraph 9 of the defendant’s statement of defence with counter-claim which says:-
“By letter dated 31st January 1951 addressed to the Chief Commissioner, the Plaintiff purported to appeal to the Court of the Governor of the Western Provinces, and claimed therein that he received the Resident’s judgment on 23rd November, 1950.”
This averment was not traversed by the plaintiff. And for the reason I have earlier on given in this judgment it must be taken to be admitted. So it can be legitimately said that the plaintiff had notice of the decision of the Resident’s court on 23rd November, 1950. So the period within which the plaintiff could appeal from that judgment would run from the latter date 23rd November 1950. And since the plaintiff’s appeal from the judgment was lodged on 3rd January 1951 more than 30 days after he had notice of it, the appeal was lodged out of time. See Section 1 (3) of the Native Court’s Ordinance
Although the appeal was lodged out of lime, there was jurisdiction in the Governor’s Court to hear an appeal out of time with leave, Section 37 of the Native Court Ordinance refers. If it is the contention of the defendant that leave to appeal out of time was not given before the appeal was heard and determined as would appear to be the case from his contention that time within which to appeal was not extended for the plaintiff, the onus was on the defendant to prove this averment even though it is a negative averment. See the case of Elias v. Disu & ors. (1961) 1 All N.L.R. 214 at 218 where Brett F.J. delivering the judgment of the Federal Supreme Court said:-
“I am unable to agree that the burden of proving consent was on the defendants. The plaintiffs had come to Court seeking to have a transaction set aside on the ground that they had not consented to it, and once the question of consent was put in issue it was for them to prove their case. Various decisions were cited to us on behalf of the appellant: Toleman v. Portbury (1870) L.R.5 Q.B. 288; Wakelin v. L.S.W.Rt. Co. (1886) 12 App.Cas. 41; Abrath v. N.E. Ry. CO. 49 L.T. Rep. 618; but they merely exemplify the application of the rule contained in Section 135 of the Evidence Ordinance, that
“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. (italics are mine.)
The defendant has failed to prove that no leave to appeal out of time was granted to the plaintiff.
In sum, I hold that the Court of Appeal was in error in holding that the appeal of the plaintiff from the Resident Court to the Governor’s Court was not properly before the Governor’s Court.
For purposes of completeness, it must be mentioned that no where in his statement of defence with counter-claim did the defendant plead that the time within which the plaintiff was to have appealed from the decision of the Resident’s Court to the Governor’s Court was not extended by the latter. Nor was it pleaded that leave to appeal was not given by the latter either.
The contention of the defendant as regards the appeal in the Governor’s Court is as follows:-
(ii) the order of transfer of the suit to the Supreme Court (High Court) made by Mr. T.C. Hoskyns-Abraham, Chief Commissioner Western Provinces in the Court of the Governor in Appeal No. 467 on 21st April, 1951 is null and void and of no effect whatsoever, it being made when no appeal was pending in the Governor’s Court.”
If the defendant is now saying that there was no appeal pending in the Governor’s Court because time within which to appeal to that court by the plaintiff was not extended or that leave to appeal out of time by the plaintiff was not granted by the Governor’s Court then the latter point has become an issue in this case. And because of what I have just said the onus was on the defendant to prove it, which he failed to do, before he could ever hope to get the declaration that the whole of the decision of the Governor’s Court is null and void and of no effect.
There can be no doubt in this appeal that the proceedings before Adeloye J. as he then was cannot be a nullity. There was no basis at all for the Court of Appeal so holding. It is equally clear to me that the Supreme Court did not consider the merits of the defendant’s appeal from Delumo’s decision in AK/49/59 since the appeal was dismissed, the defendant having withdrawn it. This not withstanding the order of dismissal stands, and has the effect of putting the seal of finality on the decision of Delumo J.
In the result the plaintiffs appeal is allowed by me. The judgment of the Court of Appeal, Benin Division now before us on appeal is hereby set aside in its entirety including the various orders and the orders as to costs made by it. The judgment of the trial court in this case, suit No. HAD/3/4 in the High Court of Justice of Ondo State in the Ekiti Judicial Division given by Adeloye J. as he then was, on 25/5/78 is hereby restored by me.
The plaintiff is entitled to the costs both in this court and in the court below against the defendant which I assess at N500.00 and N300.00 respectively.
KAYODE ESO, J.S.C.: In the Native Court of Ekiti, in 1947, the Alaye of Efon on behalf of his people took the Ido-Irapa community headed by J.O. Hassan to court claiming that the Ido Irapa people were his customary tenants. He lost and the court partitioned the land in dispute between the two communities. See Suit No.5 of 1947.
Both appealed against this decision to the District Officer’s Court. That Court needed clarification of the Native Court Judgment and so it sent it back to the Court for such clarification. After that clarification, the District Officer’s Court affirmed the order of partition made in 1947.
The Ido Irapa community were still not satisfied. They appealed to the Resident’s Court, which set up an arbitration Commission. This was in 1948. Be it noted that both sides agreed to the setting up of this Commission. The Commission gave its findings in July 1950 upon which the Residents Court, accepting the findings ordered the Divisional Court to demarcate the boundary as defined by the Arbitration Commission.
This time it was the Alaye of Efon that was dissatisfied and he appealed to the Governor’s Court. It was the Chief Commissioner Western Provinces that sat on the case. He held that the order of the Resident’s Court be set aside and then transferred the case to the Supreme Court (that is, now known as High Court).
The case came before Hedges J. but eventually was determined by Delumo J. who after taking evidence gave judgment for the Alaye of Efon in 1962. By this time it was the High Court. And appeals lay to the Supreme Court. There the Defendant appealed to but he eventually withdrew the appeal for purpose of settlement out of Court. Incidentally, when the peace proposals broke down the Defendant appealed, hut unsuccessfully to the Supreme Court for the appeal to be relisted.
This foregoing is a brief history of this case which came before Adeloye J. in a declaratory form seeking that Delumo J. had no jurisdiction to hear and determine the suit because the transfer by the Commissioner was null and void. Adeloye J. dismissed the suit. Appeal went to the Court of Appeal and it was allowed. An appeal has therefore been lodged in this Court even by both parties against the judgment of the Court of Appeal, Omo Eboh, Ete and Ikwechegh JJ.C.A.
I had the privilege of the lead judgment just delivered by my learned brother Agbaje JSC. I am in respectful agreement.
Several issues arose in this case and they have, with respect, been J adequately dealt with by my learned brother. One issue which I seek to comment upon further is the sanctity being applied to Lord Denning’s dictum in U.A.C. v. MacFoy (1962) A.C. 52 where the learned law Lord, as he then was, in his usual colourful manner, set out in the Privy Council.
“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
First of all, Lord Denning M.R. did not himself take this dictum beyond the facts of the case before him. He said further-
“So will this judgment collapse if the statement of claim was a nullity.”
What were the facts of this case They are contained in the judgment of the Board.
“In Sierra Leone the long vacation runs from July 15 to September 15. On August 16, 1958 during the long vacation, the United Africa Co. Ltd. issued a writ in the Supreme Court of Sierra Leone against B.L. MacFoy. It was indorsed with a claim for 5,960Pounds.15s.9d for goods supplied. It was duly served, and on September 2, 1958, still during the long vacation, the plaintiffs delivered and filed a statement of claim in which they alleged that the defendant was indebted to them in the sum of 5,690Pounds. 15s. 9d. for oil products supplied to him, which he had sold to the public and had not paid for. The long vacation ended on September 15, 1958. More than 10 days elapsed thereafter and no defence was delivered by the defendant. On September 29, 1958, the plaintiffs signed judgment against the defendant in default of defence.
The judgment ran as follows:
“The defendant not having delivered any defence herein it is this day adjudged that the plaintiffs recover against the said defendant 5,690Pounds.15s.9d and damages to be assessed.”
In November 1958 the defendant applied to set aside the judgment. He also applied for a stay of execution. These applications were heard by Bairamian C. J. on January 9, 1959. The defendant did not suggest that the judgment was a nullity and void. He treated it as a regular judgment but sought to set it aside because he said he had a good defence on the merits as to all but 250Pounds. He swore an affidavit setting out the reasons why he was too late to file a defence. But the Chief Justice dismissed his applications. Execution was levied and his goods sold.
On March 14, 1959, the defendant gave notice of appeal to the West African Court of Appeal. The appeal was heard on June 1, 1959 by Hurley and Ames Ag. JJ.A. and Watkin-Williams J. On the hearing of the appeal the defendant for the first time took the point about the delivery of the statement of claim in the long vacation. He said that it was a nullity and that all subsequent proceedings were void. On June 5, 1959, his appeal was dismissed.”
In the Privy Council, Lord Denning after stating the facts, referred to the Supreme Court Rules applicable in Sierra-Leone in regard to pleadings, whereby “pleadings shall not be amended delivered, or filed during any other part of such vacation, unless by direction of the court or a judge.” He held the plaintiffs were in breach of the rules. The learned law Lord then followed with the well known passage which I have set down above. He held the statement of claim to be merely voidable. He declared it was not set aside and so it took effect.
In the MacFoy case, the statement of claim was not void so, in any event whatsoever Lord Denning said in regard to validity and the lack of need for the Court to set it aside would be obiter. But more importantly is the fact that Lord Denning never said as is often claimed that a judgment of a court of competent jurisdiction could be ignored, if it, is found for any reason to be void, without its being first set aside.
He never said so and in my humble view if he had, it is with utmost respect, not the law, for a court of competent jurisdiction, not necessarily of unlimited jurisdiction (and I will come to this anon) has jurisdiction to decide a matter rightly or wrongly. If that court never had jurisdiction in the matter, then its decision is, without jurisdiction, void, but then should a court of law not even decide the point That is, the court without jurisdiction decided without jurisdiction Should the decision just be ignored Surely it would not make for peace and finality which a decision of a court seeks to attain.
It would at least be against public policy for persons, without the backing of the court, to pronounce a court decision a nullity, act in breach of the decision whereas others may set out to obey it. In my respectful view, it is not only desirable but necessary to have such decisions set aside first by another court before any act is built upon it despite the colourful dictum of the law Lord in U.A.C. V. MacFoy supra.
Mr. Ajayi very kindly referred us to the case of Isaacs v. Robertson (1984) 3 W.L.R. 705 where Lord Diplock referred to U.A.C. v. MacFoy but in the light of courts of unlimited jurisdiction. The law Lord was definite that the MacFoy case was not in regard to a decision by court of unlimited jurisdiction. He said –
“What they (that is MacFoy and Marsh v. Marsh) do support is the quite different proposition that there is any category of orders of such a court which a person affected by the order is entitled to apply to have set aside ex debito justiciae in the exercise of the inherent jurisdiction of the court without his needing to have recourse to the rule that deal especially with proceedings to set aside orders for irregularities and give to the Judge a discretion as to the order he will make.”
The issue here is the manner of application to set aside such decisions.
It is one thing to come to a court of law and seek the order of that court to pronounce that an earlier decision of that court or any other court is void and should not be built upon and another thing to decide on one’s own that the decision is void and so would not be obeyed. In the long run it is a court that will decide the validity vel non of the decision for even in cases where such flagrant disobedience ensues and the person disobeying is brought on contempt charges for disobeying the order of the court, and his pleas is that the order he is accused of disobeying is void and so he could not be held in contempt of a void order, the second court still has to decide on the voidity vel non of the earlier order. For this reason, I cannot, with respect limit reaction to such order, as one that is desirable to be set aside. I think it is necessary still that it be set aside.
The danger in a person taking the dictum as far as taking the law into his hands is foreseen in Marsh v. Marsh 1945 AC 271. There Lord Goddard said –
“A considerable number of cases were cited to their Lordships on the question as to what irregularities will render a judgment or order void or only voidable. Anlaby v. Practorius and Smurthwaite v. Hannay are leading examples of the former, while Fry v. Moore may be said to illustrate the latter. The practical difference between the two is that if the order is void the party whom it purports to affect can ignore it, and he who has obtained it will proceed thereon at his peril, while if it be voidable only the party affected must get it set aside. No court has ever attempted to lay down a decisive test for distinguishing between the two classes of irregularities, nor will their Lordships attempt to do so here, beyond saying that one test that may be applied is to inquire whether the irregularity has caused a failure of natural justice.”
The law Lord was careful, very careful indeed to take the difference in both as practical effect. He would, if he thought it was, have put it as legal effect. It is in this vein that I will limit the dictum of Lord Denning in MacFoy case to one of practical effect.
However, in the instant appeal, it is without question that Hedges J. decided he had jurisdiction. If he was wrong then he had no jurisdiction and following on the strict line of U.A. C. v. Mac Fay one would conclude nothing could be built upon it. But that is not the point. The point is Hedges J. had jurisdiction to decide the issue of jurisdiction. And so has any Judge. Where a Judge decides the issue of jurisdiction in his favour wrongly, his decision has not given him jurisdiction which he did not have but that decision must first be set aside. This accords again, though a matter should not be mainly defended by it, on public policy. As Lord Diplock said in Isaacs v. Robertson. –
“the contrasting legal concepts of voidness and voidability form part of the English Law of Contract”.
The law Lord said they are inapplicable to orders by a court of unlimited jurisdiction. With respect I take it further, they are ipso facto inapplicable to orders made by a court of competent (and not necessarily unlimited) jurisdiction, if chaos is to be avoided and certainly is to be attained.
Apart from stating all these, I am in full agreement with the decision of my learned brother Agbaje JSC and will also allow the appeal, set aside the judgment of the Court of Appeal, Benin Division. I abide by all the orders contained in the judgment of my learned brother Agbaje JSC.
SC.22/1986
