Olekamma Njionye & 53 Others Vs Benjamin Onuoha & Ors (1974)
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SOWEMIMO, JSC.
This appeal is against the judgment of Egbuna J., sitting at the Owerri High Court of the East Central State on the 9th of July, 1965. The case originated from the Isuikwuato District Court Grade A. The plaintiffs succeeded in the claim for declaration of title to a piece of land and injunction against the defendants. Appeals were lodged against the judgment to the County Court, Okigwe, Magistrate’s Court, Okigwe and the High Court, Owerri, respectively. The only complaint canvassed before us on this appeal was that the High Court, Owerri, had no jurisdiction to hear the appeal, because there had been no compliance with Section 61 of the Customary Court Law Cap. 32 of the Laws of Eastern Nigeria 1963.
That Section reads as follows:- “61. (1) Any party aggrieved by the decision or order of a Grade A or Grade B District Court may, within thirty days from the date of such order or decision appeal therefrom: (a) where a County Court has been appointed under Section 60 to be the Court of Appeal for such District Court, to such County Court or (b) where no such County Court has been so appointed, to the Magistrate’s Court which court shall have appellate jurisdiction to hear and determine such appeals.
(2) Any party aggrieved by the decision or order of a County Court may, not later than thirty days after the date of the decision or order, as the case may be, appeal to the Magistrate’s Court which court shall have appellate jurisdiction to hear and determine such appeals. (3) Any party aggrieved by the decision or order of a Magistrate’s Court may appeal to the High Court which court shall have appellate jurisdiction to hear and determine such appeals. Provided always that there shall be no right of appeal to the High Court in any civil cause or matter from any order or decision of the Magistrate’s Court without the leave of the High Court when the claim thereby determined shall not be of or above the value of ten pounds. (4) Subject to the provisions of the Constitution of the Federal Republic, an appeal shall, in accordance with the provisions of the High Court Law, and the Supreme Court Act, lie to the Supreme Court from the order or decision of the High Court given in the exercise of its appellate jurisdiction. (5) The Supreme Court shall, subject to the provisions of the Constitution of the Federal Republic, have jurisdiction to hear and determine such appeals.”
The County Court had applied the doctrine of res judicata to a judgment in an earlier suit between individual members of the two contesting families in this suit, as a bar to the institution of a fresh action by the two families. The earlier action was in 1946 and members of the plaintiffs’ family succeeded in a claim to a small portion of the land against members of the defendants’ family. The latter appealed to the District Officer’s Court, which was the proper court to review the judgment given by the then Isuikwuato Native Court, which then had jurisdiction to hear the case. After a futile attempt by the District Officer to effect an admissible settlement, each party was ordered to deposit £5 for a surveyor to make out a plan of the land in dispute. That order was not carried out by either party since 1946, and since the statutory period of doing this was a month, the appeal was deemed to have been abandoned. In 1962, when the case, the subject matter of this appeal, came before the Isuikwuato District Court Grade A, reference was made by the plaintiffs to the judgment obtained in 1946 by members of their family as a further proof of their claim of 1962. The District Court considered this judgment of 1946 along with the evidence given by the plaintiffs as well as the defendants, and gave judgment in favour of the plaintiffs’ family.
The County Court did not consider the case as was decided by the District Court Grade A, but held that, since an abortive appeal had been lodged against the 1946 judgment, the District Court Grade A ought to have held that the doctrine of res judicata was applicable to the appeal; and, quite strangely enough, it proceeded to re-open the appeal lodged in 1946 to the District Officer’s Court and purported to transfer that appeal to itself after it had been abandoned by parties for a long period of sixteen years (16). The County Court did not set out under which section it purported to act. It does not also appear that the County Court fully appreciated the effect of the plea of res judicata.
As was pointed out by the learned trial Judge when the appeal came before him, a plea of res judicata is available to a defence in a subsequent case where it had previously obtained judgment on the same subject matter and between the same parties. In the appeal before the County Court, the parties were different as well as the subject matter. The Magistrate, Okigwe, set aside the judgment of the County Court, Okigwe. The plea of res judicata was not considered applicable to the 1962 case and therefore confirmed the judgment of the Isuikwuato District Court Grade A.
The defendants/appellants further appealed to the Owerri High Court and, in his judgment, Egbuna, J., had this to say:- “What the County Court held was that the Isuikwuato District Court had no jurisdiction to hear the case afresh and refused to hear it and attempted to transfer suit 35/46 to itself for hearing and determination. They did not expressly set aside the decision of the Isuikwuato District Court for example by saying – proceedings declared a nullity in that the Isuikwuato District Court had no jurisdiction to hear it afresh or the decision of the Isuikwuato District Court is hereby set aside.
But the ruling that that Court had no jurisdiction to hear the case agreed by implication sets itself. As I have already indicated the County Court ruled that the matter was “Res Judicata”. After ruling that the matter was Res Judicata the County Court purported to transfer suit 35/46 which they ruled as being Res Judicata to hear it on appeal. In ruling that this matter was Res Judicata the County Court overlooked the findings of the Isuikwuato District Court in suit 22/62 as to the subject matter of suit 35/46 and suit 22/62.
I quote the findings of the District Court. This clearly shows that the Isuikwuato District Court found that the area involved in the 1946 claim was not the same as the area involved in the 1962 case. The 1962 case involved a much larger area. In 1946 case the areas mentioned were shown. Only the grounds of appeal were included in the record of proceedings in this suit 22/62. Even if the conditions were complied with and there is appeal pending the Isuikwuato District Court heard the evidence in detail and had the opportunity of hearing the witnesses and to form an opinion as to their credibility. They believed the witnesses for the plaintiffs/respondents and awarded title of the land to them. They disbelieved the defendants/appellants. On the weight of evidence I think it was in their favour. I see no reason to interfere with the decision of the Isuikwuato District Court which was confirmed by the learned Magistrate after setting aside the decision of the Country Court. PAGE 3 There is no doubt, considering the judgment of the Country Court, that it did not expressly set aside the judgment of the Isuikwuato District Court Grade A.
By implication, however, the effect of the County Court Judgment in seeking to hear the appeal of the 1946 that had been abandoned was a decision questioning the jurisdiction of the District Court to hear the case in Suit No. 26 of 1962. In any case, the County Court heard the appeal from the District Court and gave its judgment. That judgment was reversed by the Magistrate’s Court, Okigwe, on the ground that the plea of res judicata was not open to the County Court to consider at the hearing of the appeal before it. It is clear that the learned counsel for the appellants in the two grounds of appeal which he argued together before us, was in error in stating that the appeal before us had not followed the procedure set out in Section 61 of the Customary Courts Law.
We are of the view that the case had gone through the proper channel of appeal to the respective courts and that the High Court had jurisdiction to hear the appeal as it did. This was the only point of substance which was argued before us and we have no hesitation in rejecting the complaint of the appellants. The appeal fails, and is, therefore dismissed.
The judgment of the Owerri High Court in appeal No.HOW/CCA.20/1964 delivered on the 9th of July, 1965, in which the appeal lodged by the appellant was dismissed, is upheld. The appeal before us is against that judgment and it is hereby dismissed with costs assessed at N113 in favour of the respondents against the appellants.
This shall be the judgment and it is hereby dismissed with costs assessed at N113 in favour of the respondents against the appellants. This shall be the judgment of this Court.
Other Citation: (1974) LCN/1906(SC)
