ADETIPE V. AMODU & ANOR.

• Pages: 76-81

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NIGERIAN SUPREME COURT CASES

[1969] N.S.C.C.

ADETIPE V. AMODU & ANOR.

5

JAMES ADETIPE

V

JIMOH OMISAKIN AMODU

ISAIAH AGODI

(For themselve and on behalf

of Amodu family)

SUPREME COURT OF NIGERIA

ADEMOLA,

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C.J.N.

LEWIS,

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J.S.C.

MADARIKAN,

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J.S.C.

28th February, 1969.

APPELLANT

RESPONDENTS

SUIT NO. SC 673/1966

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Evidence - Plea of res judicata - Onus of proof - Whether trial court was

properly constituted under the Native Courts Ordinance - Jurisdiction - Whether

judgment purportedly given by that court valid to ground a plea of res

judicata - Evidence Act ss.52, 72 & 73.

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ISSUES:

1.

Whether the mere fact that a plaintiff instituted an action in a court lacking

jurisdiction to hear the matter, estops such plaintiff from objecting to the

jurisdiction of such court.

2.

Whether, under S.52 of the Evidence Act, the onus is always on an objector, to

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prove that a court has no jurisdiction to try a matter.

FACTS:

In suit HOS/99/64 the respondents as plaintiffs claimed in their writ declaration

of title to a particular farmland and an injunction to restrain the defendant/appel-

lant.

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When the matter came up for trial both parties asked leave of Court to argue a

preliminary issue as to whether the defendant appellant could succeed on the plea

of res

judicata

raised in his pleadings in respect of suit No. 40/50. It was agreed

by the parties that suit No. 40/50 was between the same parties and related to the

same subject matter and the same cause of action as in suit No. HOS/9

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/

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4 but

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the real issue argued was whether the Court which heard the case in SuiZ 40/50, a

Court described as "Land Court of Ile," was properly constituted under the Native

Courts Ordinance.

After hearing arguments on both sides the learned trial Judge ruled that the

judgment in suit 40/50 could not found a plea of estoppel between the parties be-

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cause it was a judgment given by a court which had no jurisdiction.

Against this ruling, the defendant/appellant appealed to the Supreme Court.

On appeal Counsel for the appellant first argued that as the plaintiffs had brought

the action in suit 40/50 they should not be heard to say that it was wrongly brought

before a court which had no jurisdiction. Counsel further argued that the onus of

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proving that a judgment was given by a Court without jurisdiction under section 52

of the Evidence Act rested throughout on the objector so that it was the objector's

responsibility to show that the Court warrants which were tendered did not confer

jurisdiction. Counsel for the respondent referred the Court to the list of established