OJEMEN & ORS V. MOMODU II & ORS
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135
NIGERIAN SUPREME COURT CASES
[1983] N.S.C.C.
OJEMEN & ORS V. MOMODU II & ORS
5
1.
S.U. OJEMEN
2.
SELEBHOR OJEMEN
3.
JOSEPH AGBOIKHIENAN OJEMEN
APPELLANTS
10
4.
JACOB FADE EHIREMEN
(For themselves and on behalf of
Ojemen family of Ewu)
V
1.
HIS HIGHNESS WILLIAM 0.
15
MOMODU II THE OGIRRUA OF IRRUA
2.
J.A. EHIGWESE
RESPONDENTS
3.
CHRISTOPHER IYOBEBE
(For themselves and on behalf of
Irrua Community)
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SUIT NO. SC 45/1982
SUPREME COURT OF NIGERIA
IRIKEFE,
J.S.C.
BELLO,
J.S.C.
IDIGBE,
J.S.C.
25
OBASEKI,
J.S.C.
ANIAGOLU,
J.S.C.
24th March, 1983
Practice and Procedure - Appeal to Supreme Court - Leave to appeal - Need
30
for, except where complaint one of Law alone - Grounds of appeal struck
out, since not in substance grounds of law, but of fact or mixed law and
fact - Requiring leave.
Evidence - Estoppel - Res judicata - Previous decision of District Officer fixing
35
disputed boundary between present parties' communities.
Evidence - Customary law - Proof of competence of members of relevant
community as witnesses even though their community a party in the case.
40
ISSUES:
1.
Whether the decision of a district officer in a boundary dispute between two
communities can ground
res judicata
against a subsequent proceeding
between one of the former communities and a family from the other community.
45
2.
Whether members of a community are relevant witnesses as regards the proof
of customary law within the said community?
FACTS:
The plaintiffs' case was that they made grants of customary tenancies to the de-
fendants about 30 years and 20 years prior to 1977. The plaintiffs also alleged
50
that right from the beginning of the said grants, the defendants did not comply with
the terms of the grant and that they did nothing until 1974 when they took out this
action asking for declaration of title to the said land and recovery of possession
of the same. The defendants denied ever receiving a customary grant and claimed
OJEMEN & ORS V. MOMODU II & ORS
136
that the land in question belonged to Ewu and not lrrua community. The trial judge
found the customary grant proved by custom and that the land in question be-
longed to Irrua community. The defendants appealed to the Federal Court of Ap-
peal pleading
res judicata
and that independent persons were not used to prove
5
the customary grant. The Court of Appeal dismissed the appeal whereupon, the
defendants (appellants) appealed to the Supreme Court.
HELD:
1.
The previous decision by the District Officer into the boundary dispute between
the Ewu and lrrua communities settled the boundary between the land owned
10
by the two communities and not the boundary of land between Ojemen family
and lrrua community. Therefore, the plea of
res judicata
finds no place in the
proceedings and was rightly rejected by the trial judge and Court of Appeal.
2.
It is settled law that native law and custom not judicially noticed can be proved
by evidence of witnesses belonging to the community to show that that
15
community in the particular area regard the alleged customary law as binding
on them. In the peculiar nature of this case, members of lrrua community with
special knowledge of their customary law are competent witnesses.
3.
Most of the grounds of appeal filed by the appellants were struck out because
they were not grounds of law, but fact or mixed law and fact and no leave had
20
been applied for or granted for them to appeal. Section 213 of the 1979
Constitution states that appeals involving questions of law alone, lie as of right
from the Federal Court of Appeal to the Supreme Court. Appeals involving
questions of fact or mixed law and fact require the leave of either the Federal
Court of Appeal or the Supreme Court.
25
[As to
Doctrine of Res Judicata generally,
see 16 HALSBURY'S LAWS 4th
Edition 1027 paras. 1527-1529.]
CASES REFERRED TO IN JUDGMENT:
30
1.
Ajogodo v. Adegoriola
(1961) W.N.L.R. 17.
2.
Morinatu Oduka v. Kasumu
(1968) N.M.L.R. 28.
3.
Madukolu and ors v. Nkemdilum
(1962) 1 All N.L.R. 587.
4.
Obunaw - Akpugo people v. Akanwfu people
(1953) 20 N.L.R. 135.
5.
Nwabia v. Adiri
(1958) 2 E.S.C.
35
6.
Yaw Duedu v. Eyi Yiboe
(1961) 1 W.L.R. 1040.
7.
Harrop v. Harrop
(1920) 3 K.B. 386.
8.
Noivion v. Freeman
15 A.G. 1.
9.
Langmead v. Maple
18 C.B.N. s.255.
10.Re
May
(1885) 28 CL. D. 516.
40
11.
Bardar Bee v. Habib Merican Noordin
(1909) A.C. 615.
12.Hoystead v. Taxation Commissioner
(1926) A.C. 155.
13.
Queen ex-parte Ekpenoa v. Ozogula II
1962 All N.L.R. 265 at 268.
14.Adegboyega v. Igbinosun
(1969) 1 ALL N.L.R. 1.
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G.O.K. Ajayi, S.A.N.
with him
A.O. Aburime and J.C. Ojeme,
for the Appellants.
Kehinde Sofola, S.A.N.
with him
Miss Nzegwu ,
for the Respondents.
OBASEKI, J.S.C.:
(Delivering the Judgment of the Court): The appellants were
defendants to an action instituted on the 22nd day of August, 1974 in the High Court
50
of Justice, Mid-Western State of Nigeria now High Court of Justice, Bendel State
holden at Ubiaja by the respondents who, as plaintiffs, claimed:
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