OGIAMIEN & ANOR V. OGIAMIEN

• Pages: 189-193

OGIAMIEN & ANOR V. OGIAMIEN

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189

The defendant's appeal is allowed with costs assessed at sixty seven guineas;

the judgment of 11th June, 1964 in the Lagos High Court Suit 241/1963 is hereby

set aside, the claims in the suit are dismissed, the judgment shall be entered ac-

cordingly with costs to the defendant assessed at forty -three guineas; and if the

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defendants has paid costs as ordered by the High Court, they shall be refunded

to him.

Appeal allowed.

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OGIAMIEN & ANOR V. OGIAMIEN

15 OBAZEE OGIAMIEN

COMFORT OGIAMIEN

V.

OBAHON OGIAMIEN

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SUPREME COURT OF NIGERIA

ADEMOLA,

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C.J.N.

COKER,

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J.S.C.

LEWIS,

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J.S.C.

9th June, 1967

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APPELLANTS

RESPONDENT

SUIT NO. SC 618/1965

Estoppel - Res judicata

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Same issue between same parties and privy - High

Court - Reviewing subsisting native court judgment pleaded as res judicata

- Whether proper

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Civil Action - Courts - Customary or Native Courts - Variation in bench -

Whether there is a presumption that no variation - Whether variation nullifies

judgment

Practice and Procedure - Judge raising issue in his judgment and deciding on it

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without hearing argument.

ISSUES:

1.

Whether, in the absence of contrary evidence, there is a presumption that where

a customary or native court is sitting, it is the same panel that sits on a case

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from day to day: whether a variation in the Bench will nullify a judgment.

2.

Whether a subsisting judgment of a competent native court which resolves an

issue may be reviewed by a High Court on a plea of

res judicata.

3.

When will a native court judgment operate as

res judicata.?

FACTS:

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The plaintiff/respondent brought an action in the High Court against his eld-

est brother and another on behalf of himself and other members of the family

seeking a declaration that the brother (first defendant) had no right under Bini

customary law to sell the property of their father situate in Benin City, and also for

an order to set aside the purported sale made to the second defendant, a rela-

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Lion of the parties. The defendants in reply, relied on an earlier native court case

(also resulting from the same sale) between the first defendant as plaintiff and the

younger members of the family as defendants. This was in effect a plea of

res

judicata.