UGWAJIOFO & ANOR V. ONYEKAGBU & ORS

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94

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NIGERIAN SUPREME COURT CASES

[1964] N.S.C.C.

UGWAJIOFO & ANOR Vo ONYEKAGBU & ORS

1.

IBEAKANMA UGWAJIOFO

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APPELLANTS

2.

FERGUSON UGWAJIOFO

V.

MONAGO ONYEKAGBU (for himself and

on behalf

of ISIEKE, AGBAOBU people)

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RESPONDENTS

SUIT NO.FSC 55/1963

SUPREME COURT OF NIGERIA

BRETT,

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J.S.C.

TAYLOR,



J.S.C.

BAIRAMIAN,

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J.S.C.

3rd April, 1964

Civil Actions - Appeals in civil cases - Misdirection of evidence - Case for retrial

- Courts - Governor on appeal in Native Court case - Governor refusing more

time for appeal, later granting it.

ISSUES:

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1.

Can a Governor entertain a second application for leave to appeal out of time

from a Native Court case, where he had refused the first application.

2.

Whether a judgment based upon a misdirection on the evidence constitutes a

proper case for an order of retrial.

FACTS:

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This action involved a dispute over land called Alahuhu, and some Native Court

Judgments were put in as evidence; the similarity of names of the localities to the

North and take fouth of Alahuhu led the trial judge to some confusion and he con-

sequently misdirected himself on the evidence afforded by those judgments.

In one Native Court case between the parties on the land in dispute, the plain-

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tiffs lost and on appeal to the District Officer and the Resident they also lost. They

applied to the Governor for leave to appeal out of time, but the application was

refused. They applied again and this time were successful and were granted leave.

Their appeal was allowed and a retrial ordered. The defendants contended that

having refused the firor application the Governor was

functus officio,

and that the

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Residents judgment was

res judicata

in their favour.

HELD:

1.

An order refusing extension of time within which to appeal is not a decision on

the merits: there was a discretion in the Governor to entertain the second

application, and his exercise of the discretion could not be interfered with.

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2.

As the judgment under appeal was based mainly upon a misdirection on the

evidence afforded by the Native Court decisions, it was a proper case for an

order of retrial.

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10

15

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Uche Omo

for appellants

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P.O. Balonwu (with him) J.C. Okolo)

for respondents