ARIYO V. OGELE

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ARIYO V. OGELE

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ARIYO V. OGELE

SUNMONU ARIYO

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APPELLANT

V

10 JOHN OGELE

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RESPONDENT

SUIT NO. SC 324/1965

SUPREME COURT OF NIGERIA

BRETT,

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J.S.C.

COKER,

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J.S.C.

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LEWIS,

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J.S.C.

9th January 1968.

Courts - Native Courts

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Appeal - Order for re-trial - Must be in Court having original jurisdiction -

Native Courts Ordinance S.40(1)(b).

ISSUES:

1.

Whether an appeal court can order a retrial in a court which has no original

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jurisdiction to hear the matter.

2.

What is the correct construction of S.40(1)(b) of the Native Courts Ordinance.

FACTS:

The plaintiff (respondent) originally brought a claim for a declaration of title to

a piece of land in the Ikare Native Court. He then appealed to the Akoko District

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Court, and that Court gave judgment for him. The defendant then appealed to the

district officer who gave judgment nullifying the proceedings of the court below

as certain members of the Akoko District Court changed during hearing. He set

aside the judgment and ordered the case to be transferred to the Magistrate's Court

Grade I for rehearing

ab intio.

At the instance of the defendant, Stuart J., a judge

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of the High Court of Western Nigeria, made an order transferring the case to the

High Court for hearing and determination. The High Court granted the plaintiff's

claim and the defendant appealed to the Supreme Court arguing

inter alia

that the

order of Stuart J. transferring the case from the Magistrate's Court to the High Court

was

ultra vices,

and that the judgment was against the weight of evidence. The dis-

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trict officer's powers on appeal were set out in S.40(1) of the Native Courts Ordin-

ance (Laws of Nigeria, 1948, Cap.142).

HELD:

1 There were no grounds for reversing the findings of fact. The defendant had

failed to establish any error in law or lack of jurisdiction that would entitle him

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as a matter of legal right to have the appeal reheard in the High Court, and he

had shown no reason why any discretionary power should be exercised in his

favour

2. The most reasonable way to construe s.40(1)(b), of the Native Courts Ordinance

is to read into it the implied requirement that the receiving court shall be one

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on which original jurisdiction to hear and determine the cause or matter is

conferred

by or under

the legislation under which the court is constituted; and

that is the correct construction of the paragraph.