Emmanuel Ogbe V. Chief Justice, East-central State & Ors. (1972)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C.

By an application ex parte and dated the 19th December, 1962 the appellant applied to the High Court, Enugu, “for the issue of order nisi to show cause why a writ of certiorari should not be issued to remove into this Honourable Court and quash the judgment of the Chief Justice, Eastern Region delivered in Chambers at Enugu on the 28th day of July, 1962, and for any such order or such orders as the court deems fit and proper.”

The application is supported by an affidavit which describes in some rather meticulous detail the history of litigation between the appellant as representing the people of Amagu-Ugwu Umungeneike Akagbe on the one hand and the 2nd respondent as representing the people of AmaguIbite Akagbe on the other hand over lands which the appellant’s people call “Akani” and which the respondent’s people call “Agu Amagu Ibite.”

According to that affidavit the respondent’s people as plaintiffs had sued the appellant’s people in the Awkunanaw Native Court for “interfering with the plaintiff’s land situate between Nyaba and Ayo Rivers” and on the 18th March, 1957 that court had given judgment in favour of the present respondents who were the plaintiffs therein. The appellant’s people appealed from that judgment to the court of the District Officer, Idi, who by his judgment dated the 3rd May, 1957 upheld the decision of the Awkunanaw Native Court and dismissed the appeal of the appellant’s people.

The appellant’s people thereafter appealed from the Assistant District Officer’s judgment to the Resident who on the 20th June, 1957 allowed the appeal of the appellant’s people and dismissed the case of the respondent’s people as placed before the Awkunanaw Native Court. The affidavit also states that in the meantime the following events occurred:-

(i) The appellant’s people then on the 20th July, 1957 filed Suit No. E/39/57 against the respondent’s people claiming in respect of the same land a declaration of title, damages for trespass and a perpetual injunction.

(ii) The respondent’s people as plaintiffs on the 26th July, 1957 filed Suit No. E/43/57 against the appellant’s people claiming precisely the same remedies as against the appellant’s people in respect of the same land.

(iii) The two cases, i.e. E/39/57 and E/43/57 were both mentioned in the High Court, Enugu on the 20th October, 1958 before Ainley J. who made an order consolidating both for hearing.

(iv) On the 31st January, 1959 pursuant to a preliminary objection to the competence of Suit No. E/43/57 by the appellant’s people on the grounds of res judicata founded on the Resident’s judgment of the 20th June, 1957, Egbuna J. in the High Court, Enugu, struck out that action upholding the plea of estoppel per rem judicatam.

(V) On the 31st January, 1959, Egbuna J., having heard the case of the appellant’s people in E/39/57, dismissed that action but an appeal was lodged by the appellant’s people to the Federal Supreme Court where they won the appeal and obtained an order by the Federal Supreme Court on the 5th April, 1961 for a re-trial of the case.

The affidavit in support of the application further stated that on the 7th April, 1959, the respondent’s people forwarded a petition to the Governor pursuant to the provisions of the Native Courts Ordinance, cap. 142 (Laws of Nigieria, 1948) asking for an extension of the time within which they might appeal from the decision of the Resident dated the 20th June, 1957 to the Governor and for a review of the Resident’s decision. The affidavit further stated that on the 28th July, 1962 the Chief Justice of the then Eastern Nigeria (who was the original 1st respondent to this appeal but was at the hearing of the appeal substituted by the Chief Justice, East-Central State) purporting to act by virtue of section 31 of the Native Courts Ordinance, cap. 142 (Laws of Nigeria, 1948) as amended by the Native Courts (Interim Provisions) Law No. 12 of 1960 (Laws of Eastern Nigeria) granted the respondent’s people an extension of time within which to appeal from the decision of the Resident dated the 20th June, 1957 and allowed the appeal of the respondent’s people thereby giving judgment in respect of this same land to the respondent’s people. The affidavit further stated that on being informed by the respondent’s people that they had already filed a petition for appeal to the Governor, the High Court, Enugu, re-hearing Suit No. E/39/57 at the instance of the appellant’s people, had had to adjourn the hearing of the case sine die pending authoritative information as to the outcome of that appeal.

Also attached to the application of the appellant’s people is the usual statement in support thereof showing, inter alia, the grounds on which the relief by way of certiorari was sought as follows:-

“(a) The Chief Justice had no jurisdiction in the matter as the purported appeal by the plaintiff was neither pending before the then Governor nor the Chief Justice.

(b) That the purported judgment of the learned Chief Justice was an empty judgment and of no effect in that before he exercised his powers under the Native Courts Ordinance and the Native Courts Interim Provisions Law No. 12 of 1960 there had been already an existing order by this Honourable Court on the 21st day of January, 1959 which stopped the plaintiffs from further putting up a claim oftitle and possession in respect of this land in dispute.