UDE & ORS V. AGU & ORS

• Pages: 45-48

UDE & ORS V. AGU & ORS.

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UDE & ORS V. AGU & ORS.

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WILLIAM UDE & ORS

V

10 JOSIAH AGU & ORS

FEDERAL SUPREME COURT.

ADEMOLA,

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F.J.

BRETT,

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F.J.

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UNSWORTH,

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F.J.

23rd February, 1961.

APPELLANTS

RESPONDENTS

SUIT NO. FSC 54/1960

Civil Procedure - Appeals - Civil - Whether decision final or interlocutor), - res

judicata. - Native Courts - Decision appealed from to District Officer - Order

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made more than six months after the decision - order setting aside the

proceedings and directing retrial in High Cowl - Nullity of Order.- Native

Cowls Ordinance s. 28 (3), s. 40 (1) (a) and (b).

ISSUES:

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1. What is the test for determining whether an order of court was interlocutory or

final order.

2. Whether s.40 (1) of the Native Courts Ordinance grants to a District Officer, a

naked power to set aside judgments.

FACTS:

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Two issues arose out of this appeal. The Native Court had given a decision on

a land matter between the parties. One of the parties being dissatisfied appealed

to the District Officer to whom an appeal lay - and he gave his judgment some six

months after the date of the Native Court judgment. He set aside the judgment of

the Native Court and ordered that the case be retried before the High Court under

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S 28(1)(b) of the N.C.O. In the High Court, the order of the District Officer was de-

clared a nullity and the judgment of the Native Court was held to be a subsisting

one and available to the defendant in support of their plea of

res judicata.

On ap-

peal to the Supreme Court, a preliminary objection to the competency of the ap-

peal was raised by counsel for the respondents who submitted that the decision

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of the High Court that the Native Court suit was

res judicata

was an interlocutory

one and that the nature of appeal was invalid because, the order being an interlo-

cutory one, the leave of court as required by law was not obtained and that the no-

tice of appeal was filed out of time for appeal against interlocutory orders. It was

also argued that the District Officer's order made under S. 40(1) of the Native Court

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Ordinance, though bad in so far as it ordered a retrial in the High Court, which the

District Officer had no power to do in the exercise of his appellate jurisdiction was

valid in so far as it set aside the judgment of the Native Court until the order was

itself set aside on appeal or by order of

certiorari.

HELD:

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1. There are two tests for determining whether a decision is an interlocutory or

final one for the purposes of appeal (1) if the order as made finally disposes

of the right of parties then it ought to be treated as a final order, and (2) an

order is an interlocutory order unless it is made on an application of such a

character that whatever order had been made thereon must finally have