Henry Ofunne And Ors V Nnaemegwo Okoye And Ors (1966) LLJR-SC

Henry Ofunne And Ors V Nnaemegwo Okoye And Ors (1966)

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BRETT, J.S.C. 

The parties represented in this case are the people of Norgu Awka as plaintiffs and the people of Ukwulu Awka as defendants. They will be referred to as Norgu and Ukwulu. The two communities have been engaged in litigation over their rights in certain land at least since 1917, and the exhibits produced at the trial included the records of seven different suits between them. The major issue was settled in 1950, when a District Officer named Harding, in a decision given on appeal from the Udoka Native Court in suits 102/49 and 23/49-50 (Exhibits 4 and 4A) held that Ukwulu had the reversionary title as being the original owners, but that they could not disturb Norgu from living and farming on the land, so long as Norgu paid one goat or its cash equivalent by the Ist January each year and did not bring tenants on the land.

The parties are agreed that they are bound by that decision, and subsequent litigation has been concerned with the extent of the rights which customary law confers on each community as owner or customary tenant.

In the present suit, instituted on the 11th July, 1957, Norgu claimed a declaration-

“that the plaintiffs as customary tenants of the defendants on Ana-Uno land situate at Norgu in Awka Division are entitled under native law and custom to full enjoyment of the said land and of the trees thereon as long as the plaintiffs pay the customary tribute to defendants”

and an injunction to enforce those rights. The real contest was over the right to fell trees, and Ukwulu pleaded that “the defendants have a right to the trees on all their lands.”

Each party called oral evidence in support of its submissions as to the customary law governing their relations, and Ukwulu relied also on a number of judgments which they submitted made the question res judicata. For reasons which we shall discuss later the trial judge, Savage, J., held that the passages on which Ukwulu relied were obiter dicta, and that he was entitled to decide the question solely on the oral evidence, though he also took into consideration an admission made by a representative of Ukwulu in one of the former suits. On the oral evidence he held that the plaintiffs succeeded and granted them the declaration they sought.

We agree with Savage, J., as to the effect of the oral evidence. The first plaintiff gave evidence himself, and the plaintiff.s called two witnesses from landowning communities in the neighbourhood, whose evidence carries considerable weight since one of them came from a community which had tenants to whom they bore the same relationship as Ukwulu bear to Norgu, and the other had fourteen years’ experience as a Native Court member. They all said that subject to special rules about an Iroko tree, which the first plaintiff accounted for by saying”the iroko is the king of all trees in the world,” tenants in the position of Norgu have an unrestricted right to fell trees of all kinds. The first defendant gave evidence, and made the mistake of putting his case much too high and denying the right of Norgu even to reap the fruit of any palm trees that they had not planted themselves.

Under cross-examination he agreed that in an earlier case over the felling of an iroko tree the representative of Ukwulu had been asked “Are you against them felling any other trees?” and had answered “No.” Two tenants gave evidence for Ukwulu and said that they had no right to fell trees, but, as Savage J., pointed out, they were people who received fanning tenancies from year to year, and their rights are naturally more restricted than those of settlers like Norgu who have lived on the land for several generations. No serious attempt was made on appeal to show that on the oral evidence the finding of Savage J., was not fully justified, but we have to consider the effect of the Native Court decisions on his finding.

We now turn to the judgments on which Ukwulu rely. Exhibits 5, 5A, 5B, 5C and 5D were the judgments at first instance and on appeal in suit No. 6/SO-S1 in the Udoka Native Court. In it a man from Ukwulu sued two people of Norgu for £10 damages for cutting two iroko trees. The Native Court and the Njikoka Native Court of Appeal awarded £5 damages; the District Officer first reviewed the case at the instance of the plaintiff and reduced the damages to £2, and later heard and dismissed the appeal by the defendants from the judgment as varied by him on review.

The defendants appealed to the Resident, and Mr S. P. L. Beaumont, Acting Resident, dismissed their appeal; in the course of his judgment he referred to Mr Harding’s judgment as the operative judgment and went on to say-”An iroko tree is a capital asset and a tenant cannot be allowed to waste such.” The final appeal was dismissed by the Lt.-Governor, Commander J. G. Pyke-Knott, who did not go as far as Mr Beaumont, and said “The native law and custom in respect of iroko trees is firmly established. They belong to the owners of the land.”

In cases 102/55, 103/55, 104/55 and 105/55 (Exhibits 6-9) people of Ukwulu sued individuals from Norgu, in two cases for cutting iroko trees and in two for cutting onwu (mahogany) trees. In each case the Native Court gave judgment for the defendant and the plaintiffs appealed to the District Officer.

The appeals were consolidated for hearing and Mr C. S. Grisman gave a single judgment (Exhibit 10) allowing all four appeals. In the course of his judgment he referred to the judgments of Mr Beaumont and the Lt.-Governor in the earlier suits and held that they concluded the matter as regards iroko trees. He went on to say-

“a mahogany tree is no less a capital asset than an iroko tree and even if the Resident’s observation in suit no. 6/50-51 referred specifically to iroko trees the rule applies equally to the mahogany trees in the present suit since it is also a capital asset which belongs to the land-owners and cannot be allowed to be wasted by tenants.”

The Resident, Mr F. P. Cobb, in dismissing an appeal from Mr Grisman’s judgment, said that he agreed with the District Officer’s view that “large trees” are “not part of the usufruct of the land.”

An appeal tothe Lt.-Governor was lodged out of time, and in refusing an extension the Lt.-Governor expressed no opinion on the merits.

In the present case Savage, J., expressed the view that what was said by Mr Beaumont and Mr Grisman about capital assets was an obiter dictum in each case, and Mr Ofodile has submitted that he was right. We find it impossible to accept this submission. What weighed with Savage J., was the fact that Mr Beaumont rested his decision on a broader ground of principle than had been discussed in the court of trial, but Mr Beaumont made it clear that it was on that ground that he gave judgment as he did and we cannot agree that what he said was a mere obiter dictum. The same applies to the judgment of Mr Grisman, who expressly followed what he conceived, rightly in our view, to be the ratio decidendi of Mr Beaumont’s judgment. Counsel on both sides cited what was said by Talbot J., about obiter dicta in Flower v. Ebbw Vale Steel, Iron and Coal Co. [ 1934] 2 K.B. 132, 154. Mr Ofodile relied on the sentence which reads-

“If a judge thinks it desirable to give his opinion on some point which is not necessary for the decision of the case, that of course has not the binding weight of the decision of the case and the reasons for the decision.”

but if a judge either at first instance or on appeal sets out the principle of law which he is applying to the facts of the case in hand it cannot be called unnecessary for the determination of the case merely because, as a principle, it is capable of being applied to other cases; that is the essential quality of a principle. We think Mr Tagbo was justified in relying on the sentence in Talbot’s J.,’s judgment which follows immediately after that relied on by Mr Ofodile, and which reads-

“It seems to me, however, to be an abuse of language to describe as obiter dicta the deliberate pronouncements in Dew’s case, which were all made expressly as reasons for the decision to which the court there came.”

However, even if the reasons which were given for the judgments in question cannot be treated as obiter dicta, we find it equally impossible to accept Mr Tagbo’s submission that the judgments (or either of them, since Mr Beaumont’s reasons were not adopted by the Lt.-Govemor) make it res judicata between the parties that Norgu have no right to fell any trees that can be described as “capital assets.” The fallacy of the submission lies in treating a general statement of law enunciated in a judgment, of which the effect in subsequent cases is in the sphere of judicial precedent, as if it were  finding of fact, which is the proper sphere of res judicata or of estoppel by record. Section 53 of the Evidence Act states the rule as follows-

“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.”

In suit no. 6/50-51, what was decided was that the defendants were liable to the plaintiffs in damages for felling iroko trees, and that their status as customary-tenants did not entitle them to fell iroko trees; of those facts the judgment is conclusive proof. Similarly Mr Grisman’s judgment in the consolidated appeals is conclusive proof that the defendants were not entitled to fell either iroko or mahogany trees, notwithstanding their status as customary tenants. As res judicatae these judgments can have no wider effect than that. The reasoning on which Mr Beaumont and Mr Grisman based their decisions deserves respectful conside


Other Citation: (1966) LCN/1334(SC)

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