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27TH JUNE, 1961.

3PLR/1961/14  (FSC)


LIONEL BRETT (KT), AG. C.J.F. (Presided)

EDGAR IGNATIUS GODFREY UNSWORTH, F.J. (Read the Judgment of the Court)





(For themselves and on behalf of Oze People)




(For themselves and on behalf of the Ikweba Family of Ogboli Eke, Onitsha.)




TRESPASS: When proof of ownership and possession is required –

PRACTICE AND PROCEDURE – APPEAL: When Retrial is a proper order to be made on appeal – Misdirection by trial Court in making findings of fact

PRACTICE AND PROCEDURE – COURT: Inferior Courts – Jurisdiction of – Evidence to be led thereto.

PRACTICE AND PROCEDURE – EVIDENCE: Presumptions – Omnia praesumuntur rite esse acta – Jurisdic­tion of inferior Courts – Applicability thereto.

PRACTICE AND PROCEDURE – EVIDENCE: Res judicata – Need to lead evidence of record of inferior Court

PRACTICE AND PROCEDURE – JURISDICTION- How to prove jurisdiction of inferior courts.



Mr. P.G.E. Emeadi -for the appellants.

Mr. E. O. Apaka -for the Respondents.



UNSWORTH, F.J. (Delivering the Judgment of the Court):

This is an ap­peal from a decision of the High Court of Onitsha Judicial Division awarding the plaintiffs £120 damages for trespass on certain Ngidima lands and an in­junction restraining the defendants from trespassing on that land.


The plaintiffs in their Statement of Claim alleged that the defendants trespassed on the land at a time when the plaintiffs were owners in posses­sion and pleaded that they would rely upon Onitsha Native Court Suit No. 203 of 1955 in proving their title. The defendants in their defence set up their own title denying that the plaintiffs were owners in possession, and pleaded, inter alia, that the Onitsha Native Court had no jurisdiction in Suit No. 203 of 1955.


The plaintiffs gave evidence of traditional history, and both parties gave evidence of acts of ownership and possession. The judgment in Onitsha case No. 203 of 1955 was admitted, though no evidence was led on the issue of the jurisdiction of the Court which gave the judgment. In addition, the plaintiffs put in evidence the judgment in a case in which their family had successfully taken proceedings in 1908 to protect the Ngidima lands against the acts of a trespasser, but the evidence did not show on what part of the Ngidima lands that trespass took place.


The Trial Judge did not rely upon the traditional evidence, but accepted the plaintiffs’ evidence of acts of ownership and possession supported by the two judgments mentioned above. The Trial Judge said this:­


“The Onitsha Native Court proceedings in Suit No. 203/55 was brought by the present plaintiffs and the former (now deceased) Chief Ojiba for themselves and on behalf of their family against the 1st and 2nd defendants personally for a declaration of title to the land in dispute. Application was made by the defendants for the suit to be transferred to the High Court, Onitsha. This appli­cation was refused by the District Officer. Thereafter the defen­dants although they appeared in Court did not take any part in the proceedings other than to submit the Court had no jurisdic­tion to entertain the suit.


“Judgment was given by the Native Court for the plaintiffs with £1915s. 0d. costs. This judgment was not appealed from; neither was any proceedings taken to have it set aside, the costs awarded against them were paid by the defendants. This judgment on its face is a valid one and in the absence of any proceeding to upset it or have it set aside must be accepted as valid by this Court. Al­though it is only against the defendants personally there can be no doubt that the Oze people as a community must have been aware of the proceeding in respect of the land which they allege they own in common and are consequently also bound by the judgment.


“However, apart altogether from the question of res judicata I consider the 1908 case and the one just referred to are relevant as being consistent with the plaintiffs claim and inconsistent with that made by the defendants. From the demeanour of the witnes­ses in the witness box I considered the evidence of the plaintiff and his witnesses to be preferable to that of the defendants and their witnesses having considered all that evidence I hold that on the probabilities the evidence given by the plaintiff and his wit­nesses is preferable to that of the defendants and their witnesses and accordingly that the defendants trespassed on the plaintiffs’ land in the manner described by the plaintiff and his witnesses.”


There can be no doubt that the Trial Judge was influenced in his deci­sion by the two judgments, and it was largely on this ground that the appeal was argued.


Counsel for the appellants submitted that they had by their pleadings put in issue the jurisdiction of the Court in Onitsha case No. 203 of 1955, and it was therefore for the respondents, who relied on that judgment, to prove the jurisdiction of the Court. In addition, Counsel urged that the learned Judge drew a wrong inference in relying on the 1908 case as an act of owner­ship in view of the fact that the identity of the land in dispute in that case was never established.


Counsel for the respondents submitted that the judgment in Onitsha case No. 203 of 1955 was binding, as it had not been set aside either on ap­peal or in certiorari proceedings, and, in support of this, he referred to the Federal Supreme Court case of Olawunrni Abogunde v. Raji Lanlokun (1958, W.R.L. R. 69). In respect of the 1908 case he conceded that the iden­tity of the land had not been established, but pointed out that the case re­lated to the Ngidima lands and was therefore relevant as an act of ownership and possession on land adjacent to the land at present in dispute.


I have considered the case of Abogunde v. Raji Lanlokun in the light of the explanation in David Chiekwe v. David Obiora and others [19601 SCNLR 566 and am satisfied that it is no authority for the proposition now put for­ward by the respondents. Jurisdiction was not in issue in the High Court in the Abogunde case, and I am satisfied that it has no application to the pre­sent appeal, in which the issue of jurisdiction was expressly raised by the pleadings in the High Court. The maxim onmia praesumuntur rite esse acta does not apply to give jurisdiction to an inferior court, and a party setting up an estoppel by virtue of the record of such a court must lead evidence of juris­diction if that jurisdiction has been put in issue by the pleadings. In these cir­cumstances I consider that the Trial judge misdirected himself in holding that the judgment in Onitsha case No. 203 of 1955 was a valid judgment in the absence of evidence proving the jurisdiction of the Court by production of a certified true copy of the warrant establishing the Court or other admis­sible evidence. This misdirection was clearly a substantial one. I also think that the Judge misdirected himself (though to a lesser extent) by failing to di­rect his mind to the fact that the land in the 1908 case was unidentified; Ngidima land covers a wide area and the proximity of the land in the 1908 case to the land now in dispute is a relevant consideration in considering the weight to be attached to this evidence.


I have considered Counsel’s submission that we should ourselves re­view the evidence and find for the plaintiffs notwithstanding these misdirec­tions, and, in this respect, I have had regard to the submission that the claim is for trespass. It seems to me, however, that the right procedure in this case is to order a re-trial. It is difficult for us to ascertain what findings of fact would have been made by the learned Judge if he had not misdirected him­self, and I would not be prepared to draw inferences in this case without such findings.


I would accordingly allow the appeal, set aside the judgment and direct that the case be re-tried by another Judge of the High Court. The appellants are entitled to costs in this Court, which I would assess at 40 guineas. The costs in the High Court should abide the result of the re-trial.


Appeal Allowed.



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