Gabriel Madukolu & Ors V. Johnson Nkemdilim (1962)

LawGlobal-Hub Lead Judgment Report

VAHE BAIRAMIAN, F.J. 

This appeal from the High Court of the Eastern Region (Betuel, J. at Onitsha on 23 November, 1959) raises the questions of res judicata and turns on the application of Section 53 of the Evidence Act, which provides that

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 the 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 it is intended     to be proved.

The questions raised in this appeal are:

(1) whether title to land was a fact directly in issue in the previous case between the parties;
(2) whether the title was actually decided by the court;
(3) whether the title appears from the judgment itself to be the ground on which it was based.

In the previous case (No. 33/56) before the Native Court of Mbatechete, the plaintiff claimed for his family yams etc., as customary rent for thirteen years under a lease given to the defendant in 1942 for building purposes, alleging that the defendant paid for two years and stopped. The defendant did not admit the claim. The plaintiff gave evidence that his family granted the defendant a piece of land to build on; that he brought them palm wine, and that they agreed on the rent, which he stopped paying after the ensuing year. The very first question put by the defendant was

“In whose lifetime did I come to you with palm wine”

Thus the plaintiff was alleging a grant of land, which the defendant was denying. At the outset of his evidence the defendant said

“The land on which I live is ours.”

The plaintiff asked him

“Can you swear with your brothers that his land in question belongs to you”

The defendant answered

“yes”.

After the defendant’s case was concluded, the court re-opened the hearing, and received from the plaintiff a copy of the proceedings in case No. 24/1937 as showing that his family had obtained title against the defendant’s late father. The court eventually gave judgment for the plaintiff relying on that case as proving that “where the defendant put up his building belongs to the plaintiff’; and the court gave judgment for payment of rent.