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Edem Umo Edem & Anor V. J. Chief Oyo Edet (1940) LJR-WACA

Edem Umo Edem & Anor V. J. Chief Oyo Edet (1940)

LawGlobal Hub Judgment Report – West African Court of Appeal

Case transferred to the High Court under sec. 25 (1) (c) of No. 44 of 1933 as amended by No. 16 of 1936—p/ea of res judicata raised in Native Court and rejected—rejected also by Trial Judge.

Held : The judgments delivered in 1921 and 1929 upon which the Appellants relied to substantiate their plea of `Res Judicata are still effective and the plea is good.

(2) The Appellants are not given a declaration of title to the land in dispute, but their use of it must not be disturbed by the Respondents or their people or licensees. Abakah Nthah vs. Anguali Bennieh (2 W.A.C.A. Reports I) followed with regard to 1929 judgment.

The facts are fully set out in the judgment.

E. E. E. Anwan for Defendant-Appellant. C. W. Clinton for Plaintiffs-Respondents.

The following joint judgment was delivered :-


This is an appeal by the Defendant-Appellant from the judgment of the High Court at Calabar in a suit which was transferred to that Court from the Native Court of Akpabuyo after judgment had been given by the Native Court. The order of transfer was made on 26th February, 1937 by the District Officer acting under section 25 (1) (c) of the Native Courts Ordinance No. 44 of 1933.

The Order was made during the short period between the passing of Ordinances No. 16 of 1936 and No. 8 of 1938 when it could lawfully be made, since the wording of the section during that period was-

– order the transfer of any causes or matter either before trial or at any stage of the proceedings whether before or after sentence is passed or judgment is given to another Native Court or to a Magistrate’s Court or to the High Court.”

On 26th April, 1937 the High Court made an Order for pleadings and they were filed. In the course of the proceedings the original plaintiff Chief Umo Edon Efiom died and the present Plaintiff-Respondent was substituted.

The High Court heard evidence of both parties aria on 14th February, 1940 gave ” judgment for Plaintiffs whereby they are hereby enabled to farm and collect palm nuts on that portion of

land more particularly described in the map or plan filed in this case, with fifteen guineas costs.”

Against that judgment the Defendant-Appellant has appealed to this Court.

The first five grounds of appeal deal with the contention that the Court below wrongly received in evidence, and wrongly based its judgment upon, Exhibit E.U.6 which was a certified copy of the proceedings and judgment in the Native Court in the transferred case. This copy proceedings was tendered in evidence by Counsel for the Plaintiff at the close of the Defendant’s case and was admitted by the Court below in spite of the suggestion by Counsel for the Defendant that it was then too late.

The statutory position of the High Court in dealing with a case transferred to it after judgment is— or rather at the time of this transfer, was–highly special. The special provision was added by the Native Courts Amendment Ordinance (No. 16 of 1936) and is as follows :—

(9) Where any cause or matter is transferred to a Native Court or to a Magistrate’s Court or to the High Court under subsection (1), paragraph (c), such court may take any course with regard to the cause or matter which it considers justice requires. The power conferred by this subsection includes the power to increase a sentence, but this subsection shall not be deemed to empower the court to try a person for an offence of which he has been acquitted “.

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The terms of this empowering subsection clearly give very wide general powers to the Court of transfer. They give the Court the power—if not the duty—to scrutinise the record of evidence and judgment in the Native Court. The mere order of transfer does not itself set aside the judgment of the Native Court. It is for the Court of transfer to decide whether the judgment of the Native Court should stand or be set aside, or be amended. In this case the High Court, before deciding upon any of these alternatives, elected to order pleadings and to hear such evidence as the’ parties chose to put before it. But that did not preclude the Court from scrutinising the record of the Native Court proceedings, and that the Court scrutinised the proceedings as an Exhibit tendered by one side and not exproprio mote could make no material difference.

For these reasons there is no substance in the first five grounds of appeal.

The main point however in the able argument addressed to this Court by Counsel for the Appellant was under the 6th ground of appeal that the Court below was wrong in law in rejecting the Defendant-Appellant’s plea that the subject matter in issue was res judicata by virtue of the various decisions and judgments put in evidence by the Defendant-Appellant. That point requires careful investigation.

The Plaintiffs’ claim in this case was-


” Declaration of rights or title as a descendant of Nya Nya and cousin

v •

to Great Duke Ephraim to farm, collect palm nuts, etc. on the portion of


land known as Ikot Nya Nya situate at Akpabuyo value about LW.

Kingdon,” (2) Ten pounds damages for wrongfully demarcating boundary on

Petrides andthe said land without the knowledge and consent of the Plaintiff about 1929 “.


Paul, C.D.This claim was elaborated in the Statement of Claim filed by

the Plaintiff. Paragraphs 2 and 3 of which read as follows :-

” 2. The land in dispute was the property of the late Efiom Edem, is now the property of his blood relatives occupied by them and is also occupied and enjoyed by the erstwhile slaves and other descendants of the said Efiom Edem.

3. The plaintiff and his predecessors in title have been in possession and occupation and have been using the said land for all purposes since it was first settled on by them during the lifetime of Efiom Edem without let or hindrance by any.”

A perusal of the record of evidence given in the Court below makes quite clear the following propositions as regards the respective claims of the parties in that Court :-

  1. That both parties agreed that each has a piece of land over which each respectively has the exclusive right to farm and cut palm nuts.
  2. That these pieces of land adjoin.
  3. That the only substantial issue of fact in the case is which is the correct boundary between the parties, the Plaintiffs claiming that it is the road or path leading to Idebe and known as ” Namberi ” and the Defendant claiming that it is a series of Okono trees. That is the issue in regard to which the Defendant pleaded Res judicata both in the Native Court and in the High Court.
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According to the learned Judge in the Court below the issue which he had to try was ” whether Plaintiffs or Defendant are entitled to farm or collect palm nuts on the land the subject matter of this action.” That is accurate enough provided it is clear that the land in dispute is the land between the rival boundaries claimed by the parties. But he is on less sure ground when he says later in his judgment ” For the Plaintiffs to succeed in their claim the onus is on them to prove acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference that they are the exclusive owners.” The language of this passage is borrowed from the judgment of the Full Court in the case Ekpo v. Ita (11 N.L.R. 68) but it is only appropriate when the claim is, as it was in that case, for a declaration of title to ownership. But in his next sentence, which reads ” The evidence in the case is typical of that usually to be found in a Calabar land case, one set of witnesses swearing that the path leading from Idebe is the proper boundary and another set that the Okono trees are the boundary,” the Judge makes it clear that the real issue was

the boundary between the parties. It must also be borne in mind that the Defendant does not base his defence on ownership but on Res Judicata long possession laches and estoppel.

In support of his plea of Res Judicata the Defendant relied upon Exhibits E.U.3 and E.U.5. E.U.3 is a judgment of the Provincial Court in 1921 and E.U.5 is a judgment of the Native Court of Akpahuyo of 1929. The Native Court in this case rejected the Defendant’s plea of Res Judicata stating in their judgment :-

” The Provincial Court judgment in Suit No. R.25 /1932 of 2nd November, 1933 tendered by Plaintiff is a valid document which renders all previous Court judgments in possession of defendant null and void “.

It is clear from the terms of the Provincial Court judgment in question (Ex. E.U.2) that this statement by the Native Court was just nonsense and Counsel for the Respondent did not attempt to defend it in this Court.

It is a curious thing that the learned Judge in the Court below in his judgment made no reference whatever to the plea of Res Judicata although it was clearly brought to his notice in the Statement of Defence and in the opening of Counsel for the Defendant, and formed the main part of the argument for the Defendant at the close of the case.

Moreover one of the grounds upon which the transfer from the Native Court was ordered was ” The claim in question has already been before the Provincial Court on two occasions and the Native Court is not qualified to assess the value of the decisions involved.

The learned Judge in the course of his judgment said :—

“1 have carefully perused the proceedings findings and judgment of the Akpabuyo Native Court and I am satisfied that there was evidence to support their findings and their judgment and I can see no reason for disturbing it “.

It is impossible to avoid the conclusion that the learned Judge must have accepted the essential part of the Native Court

Finding ” which I have quoted, namely that the Court judgments upon which the Defendant relied were null and void. It is clear that the learned Judge was wrong in accepting that finding. This Court cannot accept it and must examine on its merits the Defendant’s plea of Res Judicata.

The 1921 judgment founded upon is attacked by Respondent’s Counsel on the ground that it related to other land than that now :n dispute but his own witness Efiong Okon Udono who comes from Ikot Nya Nya and was present in Court at the 1921 case admitted in cross-examination in the present case that ” the land -Low in dispute was a portion of the land claimed by my people = 1921.” An examination of the claim and evidence in the 1921 :ase (even without the plan in that case which has been lost) makes

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clear that it related to the land now in dispute. The claim in the 1921 case was by the present first Plaintiff-Respondent’s father

who was the original Plaintiff in the present case. The claim was for a ” Declaration of title for certain land in the neighbourhood of Ikot Nakanda called Ikot Nya.” The finding of the Court was ” The strip of land extending from the Mono tree stump (marked C on the map) in an easterly direction belongs to Nakanda family,” and the claim was dismissed. It is clear that it was decided in that case that the boundary between the parties was that now claimed by the Defendant, and that the real question in issue, as now, was ” what is the boundary ? ” It cannot be disputed that, if the Plaintiffs-Respondents’ present claim were for a declaration of title, the 1921 judgment would constitute Res Judicata.
But the present claim is in its terms something short of a claim for a declaration of title. It is a claim only for a ” declaration of rights or title as a descendant of Nya Nya and cousin to Great Duke Ephraim to farm, collect palm nuts, etc. on the portion. of land known as Ikot Nya Nya at Akpabuyo.” There was a further claim of damages for wrongfully demarcating boundary but that was dropped in the Court below.

While the present claim is not expressly for a declaration of title it is clear upon the evidence for the Plaintiffs that the whole basis of the present claim is precisely the same as the basis of the claim in the 1921 case, that is to say that the boundary between the parties is the Idebe road-and that the land or what the Plaintiffs contend is their side of the boundary is the property of the Plaintiffs by inheritance from Efiom Edem. Paragraphs 2 and 3 of the Statement of Claim in the present case already quoted also make it clear that the present claim is being made by the Plaintiffs as Me titular owners of the land. Their title to this land was put in issue in the 1921 case and their claim to title was dismissed.

They cannot now be allowed to claim rights as a consequence or as a part or incident of a title their claim to which as against the same Defendant. was dismissed in the .1921 case. In our opinion the plea of res judicata in respect of the 1921 case must be upheld.

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