Eyibodogha Egoro And Ors V Komani And Ors (1968) LLJR-SC

Eyibodogha Egoro And Ors V Komani And Ors (1968)

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LEWIS, J.S.C.

This was an appeal from the ruling of Prest, Acting J. (as he then was) on the 10th November, 1965 in the Warri High Court, in regard to two actions, W/97/1956 and W/122/1956, which had been consolidated for hearing before him. In Suit No. W/97/1956 the present appellants were plaintiffs and claimed against the present respondents as defendants jointly and severally:-

“1. A declaration of title to that piece of land known as” KPAKIAMA TUOR”

2. £5,000 being damages for trespass to the said land possessed and owned by the plaintiffs and the malicious destruction thereon of economic crops, to wit, yams, coco yams, ground nuts, pepper, sugar cane, sweet potatoes, corn and beans.

3. An injunction to restrain the defendants, their servants or agents from any further acts of trespass or damage on the said land.”,

whilst in Suit W/122/1956, the present respondents were plaintiffs and claimed against the present appellants as defendants:-

“(a) Jointly and severally the sum of £400 being damages for trespass for in that the defendants in or about May, 1956 trespassed in to the Plaintiffs’ fishing pond known as “Benitiengha” and thereafter fished the said pond and have continued to fish the same pond.

“(b) An order of injunction restraining the defendants their servants and or their agents from further entering the said Benitiengha pond for fishing or other purposes without the consent of plaintiff first obtained”,

In Suit W/97/1956 the respondents pleaded res judicata in respect of the claim in their statement of defence and when the consolidated actions came for hear-ing k was agreed by counsel for both parties that the preliminary issue should first be dealt with by the learned trial judge, namely as to the plea of res judicata raised by the defendants in Suit W/97/1956. This plea in fact applied to an area of land which was also claimed by the respondents in Suit W/122/56 in which they were the plaintiffs, though it also embraced a more extended area. The respondents in W/122/1956, in addition, claimed a quite separate area called Lake Bintaya. The respondents relied for their plea of res judicata upon the judgment on appeal in Suit 321.53 in the Western Ijaw Court of Appeal on 22nd August, 1953, from the decision of the Akugbene District Court dismissing a claim by Komani and Agbedi on behalf of Bomadi against Okili, lyebodongha and Atie, in which the plain-tiffs’ claim read:-

“Plaintiffs representing the people of Bomadi seek a declaration of title to ownership of island situated in the neighbourhood of Bomadi and known as Kpasatuo.”

Only the plaintiff as appellants appeared before the Western Ijaw Court of Appeal and that court gave judgment in the following terms:-

“Appeal upheld, and below court judgment set aside. This court enters judgments for plaintiff for the whole of Igbasatuo land. This land has its boundary at the spot of the cotton tree standing in the centre of two other cotton trees.”

When, however, the preliminary issue was argued before Prest, Acting J., counsel for the plaintiffs, produced evidence which, despite objection, was admitted, sowing that the decision by the Western Ijaw Court of Appeal of the 22nd Au-gust, 1953, to which we have referred was not final as some four years later the court records show the matter was re-opened as the record for the 27th July, 1957, read:-

“An application for reopening by the people of Kpakiama. This is an appeal suit (C/S) No. 31/53 heard on 22/8/53. See file No. W.I.D.C. of 1NI/57-59 for original application made out by Kpakiama solicitor, on their behalf, addressed to the Local Government Adviser, Western Ijaw Division. Letter dated 23/7/57. The original letter was minuted to the Court President by the Local Government Adviser for consideration.

PARTICULARS OF CASE: No. 31/53.

Komani and Agbedi on behalf of Bomadi-Plaintiff/appellants.

versus

Okili, lyebondongha and Atie (m) on behalf of Kpakiama defendant/respond-ants. £1:5/- C.R. No. 1634 of 31/7/53.

CLAIM: Plaintiffs representing the people of Bomadi seek a declara-tion of title to ownership of island situated in the neighbour-hood of Bomadi and known as “Kpasatuo.”

Judgment of Akugbene District Court C/S No. 125/53 of 12-15/7/53, case dismissed with costs. Plaintiffs to refund to defendants £2:10s- inspection fee.

Order: The whole island owned by Kpakiama people and from now they defendants only to make use of Kpasatuo.

Judgment- Appeal upheld, and below court judgment set aside. This court enters judgment for plaintiffs for the whole of Igbasatuo land. This land has its boundary at the spot of the cotton tree standing in the centre of other cotton trees. £16:2s- costs against defendants.

COURT: Petition read: The application by the Kpakiama people is granted. They are allowed 7 days to reopen the above suit, after which they lost the right of reopening. The applicants to pay reopening fee”.

There was further evidence that the necessary reopening fee ordered by the Western Ijaw Appeal Court was in fact paid on the 29th July, 1957, and on the same date the Court Clerk of the Western Ijaw Appeal Court informed the par-ties of the reopening in the following terms:-

“Messrs. Komani Agbedi (m) No. W.I.D.C. 1/vi/60

Western Ijaw Divisional Court,

Bomadi:

29 July 1957.

Western Ijaw Appeal Court Civil Suit No. 31/53 Komani and Agbedi on behalf of Bomadi plaintiffs/appellants. Okili, lyebondongha and Atieon behalf of Kpakiama defendants/respondents.

You are hereby informed that the above case has been re-opened on application by the defendant/respondents.

2. The hearing date is 20/8/57

3. You are warned to bring all our witnesses and any document which you wish to rely on in support of your case.

4. If you wish to enforce the attendance of any of your witnesses, you should apply to this court for issue of Summons to Witness.

SENIOR COURT CLERK,

Bomadi

Copy to:-

Okili, lyeborxiaogha and Atie (m) on behalf of Kpakiama

defendant/respondents.

For your information Please.

JE.

SENIOR COURT CLERK,

Western Ijaw Appeal Court, Bomadi.”

It appears, however, that nothing happened thereafter and the court did not deal in any way with the reopened appeal. After the plaintiffs had adduced this additional evidence counsel for the plain-tiffs concluded his address but counsel for the defendants according to the record did not, as he was entitled, reply and Prest, Acting J., accordingly gave his ruling on the point on the 10th November, 1965, when he stated:-

“The first question I have to decide is whether by re-opening the case the previous judgment of the Western Ijaw Appeal Court is abated or set aside. I do not think so. It is my view that the judgment subsists until it is properly set aside by the same court or a higher court. It is pertinent to note here that the application to reopen the case was not made until the defendants in this present case had filed their statement of defence dated 25/1/57 pleading this judgment as res judicata.

There is no doubt that the issue In the 1953 case is the same as the issue in the present case, and the parties are the same. There is however a difference in the boundary of the land claimed in 1953 by the present defendants and the land now claimed by the plaintiffs in this case. Whereas in 1953 the present defendants claimed land the boundary of which was clearly demarcated in the judgment and now edged pink on their plan in this case exhibit ’D1, the plaintiffs now claim a larger area of the same land as shown on their plan exhibit ‘P1.”,

and he concluded his ruling as follows:-

“The plea of res judicata is upheld, and the claim for a declaration of title filed in the writ of summons is hereby dismissed with 50 guineas costs to the defendants.”

Against that ruling the plaintiffs have appealed.

Mr. Ayoola for the appellants has argued one ground of appeal before us, namely:-

“That the learned trial judge erred in law by holding that the decision of the Western Ijaw Appeal Court in Suit No. 31/53 exhibit ‘D2’ is conclusive and binding on the parties in spite of his findings that the said appeal was re-opened.”

He submitted that as the Western Ijaw Appeal Court reopened this earlier decision the effect was that by so doing the judgment it had delivered was impliedly set aside and that, therefore, the judgment could not be relied on to found a plea of res Judicata.

He craved in aid the decision of the West African Court of Appeal in Apena of Ikene v. Shonusi of Ikene 9 W.A.C.A. 95, where in an appeal from a native court to a magistrate, the latter under section 36(1)(b) of the Native Courts Ordinance, which later became section 40(1)(b) of cap 142 of the laws of Nigeria 1948 ordered a re-hearing de novo in his court, though the Chief Judge subsequently ordered the proceedings to be transferred from the magistrate’s court to the Ibadan High Court, and at page 96 the West African Court of Appeal said:-

“The result of the order made by the Magistrate under section 36(1)(b) of the Native Courts Ordinance, 1933, for the case to be re-heard was that the judgment of the Native Court was set aside. When the cause was subsequently transferred to his court all that remained to be done by the judge was to hear the cause and pronounce judgment.”

Mr Bare, for the respondents for his part submitted that the judgment of the Western Ijaw Appeal Court had not been set aside and he relied on Lateju v. lyanda and anor 4 F.S.C. 257 as established that when on appeal the appeal court ordered a re- hearing before itself under section 40 (1) (a) of the Native Courts Ordinance, then the judgment of the court of first instance is not set aside until the rehearing is complete and some other order is made. Mr. Bare also sought to rely upon Chukwunta v. Chukwu 14 W.A.C.A. 341, where the West African Court of Appeal held at page 342, on an application to a resident to review the decision of a District Officer sitting on appeal from a native court of Appeal, where the resident proposed an intertribal settlement inquiry but no inquiry was held, that they were unable to accept the submission that:-

“a mere proposal to refer the land dispute for intertribal settlement inquiry, not followed by any such inquiry has set, or can set, aside a solemn judgment of the District Officer’s Court. Furthermore, exhibit 4 nowhere stated that the judgment of the District Officer had, on review, been set aside.”

In our view, none of these cases is on all fours with the present situation as the case of Chukwunta v. Chukwu was dealing with a “proposal” of the resident and nothing more whilst the cases of Apena of Ikene v. Shonusi of Ikene and Lateju v. lyanda and anon are dealing with the special provisions of what became section 40 of the Native Courts Ordinance when an appeal court ordered a rehearing of the case on appeal before it either by itself or by another court but on which a decision had not previously been given on appeal. What we have here is an appeal court, after hearing one side in the absence of the other party and then giving judg-ment, subsequently allowing the appeal to be re-opened on the application of the other party which had not been heard, and when ft is so acting we do not see that once the court allows the matter to be re-opened it can be so doing otherwise than by setting aside its earlier judgment, whether or not it so states. An appeal may be re- opened after judgment where one side did not appear before judgment. On re-opening the audi alteram partem rule means that argument starts de novo with the appellant beginning even If the previous default judgment was in his favour.

In such a case the decision to re-open must, in our view, involve setting aside the default judgment. Here there was a conditional decision to re-open so once the condition was complied with, the default judgment was, in our judgment, set aside. If, therefore, as here, nothing further was done to dispose of the matter after re-opening it, the matter remains pending, but the decision of the Western Ijaw Appeal Court of the 22nd August, 1953 must be deemed to have been set aside so that the judgment of the Akugbene District Court remains the effective judgment until the matter is finally disposed of by the Western Ijaw Court of Appeal. It follows therefrom that the judgment, on which the plea of res judicata was held by the learned trial judge to have been properly relied on, is impliedly set aside, and therefore could not have been relied upon to found the plea of res judicata.

We must accordingly allow this appeal and set aside the ruling of Prest, Acting J, to which we have referred, together with the order for fifty guineas costs which he awarded to the respondents, and we order that the matter be remitted to the High Court of the Mid-Western State to be heard de novo before a different judge of that High Court.

The appellants are entitled to their costs of this appeal which we assess at eighty guineas and costs in the High Court are to abide the outcome of the hearing de novo.


Other Citation: (1968) LCN/1605(SC)

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