ATO V. THE STATE

• Pages: 105-108

ATO V. THE STATE

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105

40 of the Native Courts Ordinance when an appeal court ordered a rehearing of

the case on appeal before it either by itself or by another court but on which a de-

cision had not previously been given on appeal. What we have here is an appeal

court, after hearing one side in the absence of the other party and then giving judg-

5

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ment, subsequently allowing the appeal to be re-opened on the application of the

other party which had not been heard, and when it is so acting we do not see that

once the court allows the matter io be re-opened it can be so doing otherwise

than by setting aside its earlier judgment, whether or not it so states. An appeal

may be re- opened after judgment where one side did not appear before judg-

10

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ment. On re-opening the audi alteram partem rule means that argument starts de

novo with the appellant beginning even if the previous default judgment was in his

favour. In such a case the decision to re-open must, in our view, involve setting

aside the default judgment. Here there was a conditional decision to re- open so

once the condition was complied with, the default judgment was, in our judgment,

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set aside. If, therefore, as here, nothing further was done to dispose of the mat-

ter after re- opening it, the matter remains pending, but the decision of the West-

ern Ijaw Appeal Court of the 22nd August, 1953 must be deemed to have been set

aside so that the judgment of the Akugbene District Court remains the effective

judgment until the matter is finall disposed of by the Western Ijaw Court of Ap-

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peal. It follows therefrom that the judgment, on which the plea of res judicata was

held by the learned trial judge to have been properly relied on, is impliedly set

aside, and therefore could not have been relied upon to found the plea of

res

judi-

cata.

We must accordingly allow this appeal and set aside the ruling of Prest, Ac-

ting J, to which we have referrer , together with the order for fifty guineas costs

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which he awarded to the respondents, and we order that the matter be remitted to

the High Court of the Mid-Western State to be heard de novo before a different

judge of that High Court.

The appellants are entitled to tieir costs of this appeal which we assess at eighty

guineas and costs in the High Court are to abide the outcome of the hearing

de

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novo.

Appeal Allowed

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ATO V. THE STATE

TOLATO ATO

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APPELLANT

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V

THE STATE

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RESPONDENT

SUIT NO. SC 325/67

SUPREME COURT OF NIGERIA

BRETT,

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J.S.C.

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COKER,

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J.S.C.

MADARIKAN,

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J.S.0

11th April, 1968.

Criminal Law - Homicide - Provocation - Whether words spoken in the course

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of a quarrel and followed immediately by a blow are necessarily indicative of

premeditation - Penal Code (N.N) S.222(4).