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SUIT NO. FSC 156/1959

3PLR/1959/73 (SC)














  1. Ademola – for appellant.
  2. Okubadejo – for respondent.


LAND LAW – Land in Western Region – Claim for declaration of title and possession – Estoppel per rem judicatam – Appeal to High Court from Native Court – Native Courts Ordinance s.40(1) – Native Courts (Colony) Ordinance (Gold Coast) s.50 – Effect of cases decided under these sections – Distinction between rehearing under Native Courts Ordinance s.40(1) (a) and order for rehearing under Native Courts Ordinance s.40(1) (b).



This is an appeal by the Plaintiff from a judgment of the High Court of the Western Region dismissing his claim against the two defendants for a declaration of title to land and possession of the land. It was not the first case between the parties involving the same piece of land. In suit 71/52 the present appellant sued the second respondent and one Laoye in the Ibadan Native Court for ownership and possession, and the first respondent gave evidence for the defence, and stated that the land belonged to his family. Judgment was given for the present appellant, and although the Native Court of Appeal reversed it, it was restored by the District Officer and affirmed in successive further appeals to the Resident and the Lieutenant-Governor. In suit 77/54, the first respondent sued the appellant and the second respondent in the Ibadan Native Court for title and an injunction. The present appellant relied on the judgment in suit 71/52 as binding on the first respondent, but the Court rejected that submission and gave judgment for the plaintiff, the present first respondent. This was affirmed by the Native Court of Appeal, and an appeal was brought to the High Court of the Region. The Chief Justice directed that the case should be tried de novo in the High Court, and ordered pleadings. A Statement of claim was filed, but no defence, and on a motion for judgment by default the High Court made an order simply striking out the appeal.

In the present case the second respondent made no claim to the land, and pleaded that he was on it merely as caretaker for the first respondent. It is unnecessary to refer to him further. The appellant and the first respondent each relied on the decision in his own favour, and judgment was given for the first respondent on the ground of res judicata, no evidence being heard. It is against this decision that the appeal is brought, and Mr. Ademola, for the appellant, has submitted that the learned Judge was wrong in holding that the judgment in favour of the appellant in suit 71/52 was not binding against the first respondent, and that the Native Court which tried suit 77/54 was also wrong in holding the same thing. In support of this argument Mr. Ademola has cited the judgment of the Judicial Committee in Nana Ofori Atta v. Nana Abu Bonsra, which was delivered after the judgment appealed against In this case and was therefore not cited to the Judge. In that case the Judicial Committee recognised that in litigation concerning land in West Africa the doctrine of estoppel per rem Judicatam has been developed further than in England and that a person who knowingly stands by during litigation concerning the title to land in which he claims an interest, in circumstances in which he might reasonably be expected to apply to be joined as a party, may find himself bound by a judgment even though he was not a party to the suit in which the judgment was given. In the present case I am prepared to hold, H it is open to me to do so, that the first respondent is bound by the decision in a suit which was brought against someone who he now says was merely his caretaker on the land and of which he must be held to have known, since he gave this Court so to hold in view of the fact that in suit 77/54 the lbadan Native Court held that its own previous judgment was not binding on the first respondent, and the answer to that question depends on the effect of what took place when the appeal in that case came before the High Court.

The powers of the High Court on an appeal from a Native Court are set out in section 40(1) of the Native Courts Ordinance Laws of 1948 (Cap.142), which reads as follows:-

“40(1) A native court of appeal, a magistrate’s court, the Supreme Court, a district officer, a Resident or the Governor In the exercise of his appellate jurisdiction under his Ordinance may:

  1. after rehearing the whole case or not, make any such order or pass any such sentence as the court of first Instance could have made or passed In such cause or matter,
  2. b. order any such cause or matter to be reheard before the court of first Instance or before any other native court or before any magistrate’s court.”

There have been a number of decisions on the construction of this section, and of the similarly worded section 50 of the Native Courts (Colony) Ordinance, 1944, of the Golf Coast. To take the Nigerian decisions first, In Horsfall v. Amachree, k was held that a magistrate rehearing a case after an order made by a Resident under section 40(1)(b) is exercising appellate, not original jurisdiction. This decision was followed in Ekeleme v. Ugwuiro. In Apena v. Shonusl, k was held that where a magistrate made an order for a rehearing under section 40(1)(b), with the Intention of rehearing the case himself, and the case was afterwards transferred to the High Court and reheard there, the result of the order made by the magistrate was that the judgement of the Native Court was set aside. Horsfall v. Amachree was not referred to, and the West African Court of Appeal mentioned the question whether the High Court had been acting In its original or its appellate jurisdiction, without expressly deciding ft. No question was raised as to the competency of the appeal to the West African. Court of Appeal. In Ekeleme v. Ugwulro, Horsfall v. Amachree was treated as having men rightly been decided, and it was held that section 34 of the Native Courts Ordinance gave no right of appeal to the West African Court of Appeal from a decision of the Supreme Court on appeal from a magistrate rehearing a case after an order under section 40(1)(b) of the Ordinance.

Section 50 of the Gold Coast Ordinance empowers an appellate court either to rehear the case in whole or In part itself and reverse, vary or confirm the decision appealed against, or to refer’ ft back to the court from which the appeal was brought for rehearing de novo. I n Abortsi v. Avulete ft was held that where the appellate court refers the cause back “it is expressly provided that that rehearing shall be de novo, and this necessitates the original judgment being set aside.” It was further held that If the appeal court rehears the case itself it should not set aside the judgment of the court below, because it would not be possible for ft to vary or confirm a decision of the court below which had already been set aside, for that decision would have ceased to exist. This part of the decision was followed in Yeboah v. Talbil and Amoku v. Duro, and in the latter case ft was said that the appeal court became functus officio by setting aside the judgment appealed from. The cases thus establish the following four propositions:

  1. a. a court rehearing a case after an order under s.40(1)(b) of the Nigerian Ordinance is exercising appellate jurisdiction; Horsfall Amachree;
  2. b. an order for rehearing under s.40(1)(b) impliedly sets aside the judgment appealed against; Apena Shonusk
  3. c. a rehearing de novo necessitates the original judgment being set aside; Abortsi Avulete;
  4. d. once a decision has been set aside, the appellate court is functus officio under the Gold Coast Ordinance; Amoku Duro.

These propositions are not altogether easy to reconcile, and although the Native Courts Ordinance has now been repealed in the Northern, Eastern and Western Regions the Regional Laws which have replaced it contain sections with wording Identical to that of section 40(1) of the former Ordinance, so that the decisions on the meaning of that section will continue to be Important, if only for the purpose of determining in any case whether an appeal lies as of right to this court, or only by leave.

What we are called on to decide in the present case is what effect the order of the High Court striking out the appeal against the judgment in suit 77/54 had, in view of the previous order for a retrial. In my view, a distinction has to be drawn between a rehearing under section 40(t)(a) of the Native Courts Ordinance, and an order for rehearing under section 40(1)(b). Under paragraph (a) the appellate court rehears the case itself; under paragraph (b) I orders the case to be reheard by some other court, and the order made by the magistrate in Apena v. Shonusf must be regarded as exceptional in this respect. Where there is to be a rehearing under paragraph (a) I do not consider that the judgment of the court of first Instance is set aside until the rehearing Is complete and some other order is made. The power of the appellate court under paragraph (a) is entirely an appellate power, that is to say, the court’s power is to make any such order or pass any such sentence as the court of first Instance could have made or passed. The limits of this power are discussed in Tsofo Gubba v. Gwandu Native Authority, and have, in consequence of that decision, been extended in criminal appeals, but they remain unaltered in civil appeals and it may be necessary on some future occasion to consider the effect of the decision in civil appeals. In the present case, I do not consider that the judgment of the Native Court in suit 77/54 was at any time set aside, and I think it remained open to the Chief Justice to do as he did in striking out the appeal.

If this view is correct, the judgment In 77/54 operates as an estoppel against the appellant in two ways: it declares the title to be with the first respondent, and it decides that the judgment in the earlier suit, 71/52, is not binding on the first respondent. I therefore feel bound to uphold the decision of the Western Region High Court in the present case, though my reasons are not entirely the same as those on which Taylor, J., based his decision.

I would dismiss the appeal, with costs assessed at 25 guineas.

Appeal dismissed.


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