Login Register


JELR 84191 (WACA)

West Africa Court of Appeal  •   •  West Africa [For WACA cases]



Verity, C.J., Nigeria. In this case the plaintiffs on behalf of the people of Obunaw Akpugo sued the defendant on behalf of the people of Akpawfu for a declaration of title to certain lands set out in the particulars of their claim.

Following a course only too infrequently adopted in such matters counsel on each side after pleadings had been filed submitted a document agreed to by both parties comprising certain admissions and setting out the issues upon which the decision of the Court was sought. Upon these issues the Supreme Court entered judgment dismissing the plaintiffs’ claim and they have appealed to this Court. It appears from the exhibits admitted in evidence by consent and from the admissions filed that a dispute having arisen between the parties as to the lands and now in question each party brought actions in the appropriate Native Courts, but upon it being decided that the dispute should be enquired into by the District Officer under the provisions of the Inter-Tribal Boundaries Settlement Ordinance any these actions were withdrawn.

The District Officer having made due enquiry decided the dispute and settled the boundary between the lands of the parties to the dispute in accordance with a line appearing on a plan produced by the present defendants. The plaintiffs' village lies to the West of the boundary so fixed and the defendants’ village to the East thereof. The plaintiffs now claim certain lands to the East of that and boundary.

The issues before the Supreme Court were:- (1) Does a boundary so demarcated settle or determine the question of ownership on both sides of that boundary?

(2) Does such boundary affect the private rights or interests in lands as to affected thereby and acquired by individuals by virtue of their belonging to the respective tribes which were parties to the inquiry? that

(3) Can a decision in such an inquiry constitute “res judicata “ in a subsequent action for a declaration of title and injunction by a party to origin lands on the other side of the boundary? It

The learned judge in the Court below replied to these questions:- (1) No, but the decision does decide non-ownership.

(2) Yes, to the extent that if, for example, individuals in a tribe on the West of the boundary claim ownership to land on the East, this claim the would be invalid.

(3) In effect, once a boundary has been demarcated under the Ordinance that boundary is “res judicata” to the extent that the boundary will not again be decided by the Court and title to land on either side of the boundary may not be decided as between the parties themselves.

Exception is taken to all these findings in the grounds of appeal but the principal argument of counsel for the appellants is that the decision of the District Officer is not a judicial decision in judicial proceedings and cannot therefore operate as an estoppel “per rem judicatam” in subsequent judicial proceedings.

Before entering upon an examination of this contention I think it desirable to make clear both the position of the parties in relation to the inquiry and the purpose and intention of the legislature as expressed in the Ordinance under which the inquiry was held.

It is clear from the record that the parties to the initial proceedings in the Native Courts, to the inquiry and to the present proceedings are “tribes” within the meaning of the Ordinance, for section 2 provides that the expression “tribe includes a sub-tribe, clan of a tribe and the inhabitants of a village”, and the parties to this dispute are admittedly one or the other, clan or village. Apart from the short title to the Ordinance, “The Inter-Tribal Boundaries Settlement Ordinance “, section 3 thereof provides that:- “Any District Officer may, with the approval of the Resident in charge the of the province, inquire into and decide any dispute between two or more and tribes as to the boundaries between the lands of such tribes”.

The decision arrived at by the District Officer is referred to in sections 4 and 5 as a “settlement” of the dispute. His decision is subject to review by the Inter Resident and the Lieutenant-Governor is also empowered to review the proceedings either before the District Officer or the Resident. Section 9 provides that the District Officer or Resident shall have all the powers of a Magistrate in connection with any civil cause in respect of enforcing the attendance of witnesses and compelling the production of documents. Section 10 provides that any decision or order given on an inquiry or review shall be recorded in writing and shall be registered and preserved by the Resident, while section 11 provides that any person acting in disregard or defiance of any such order shall be liable to penalties.

Now in the present case it is clear that a dispute had arisen between the two “tribes” represented by the plaintiffs and defendants respectively as to the boundaries between their lands; that the District Officer decided this dispute and settled it by fixing the boundary; that this decision was reviewed by the Resident and by the Chief Commissioner (now Lieutenant-Governor) at the instance of present plaintiffs and in each case the boundary settled by the District Officer was affirmed.

It is this dispute that the plaintiffs sought to bring before the Supreme Court, for it is in my view beyond doubt that when a dispute arises between two tribes to the boundary between their communal lands and this boundary is settled under statutory authority; an attempt by either tribe to secure a declaration that their communal land lies the other side of the boundary so fixed raises in substance the identical issue as that which has been so settled. It is indeed the original dispute raised in another form.

It is difficult for me to conceive that the legislature intended to set up elaborate machinery for the settlement of such disputes if either party thereto, after having availed themselves of all means open to them under the Ordinance secure a decision, were to be at liberty then to have recourse to the Courts in, hope of securing a judicial decision at variance with that solemnly recorded and registered by statutory authority.

Counsel for the appellants has contended that nevertheless the acts of the strict Officer and, presumably, the Resident and Chief Commissioner, are administrative and not judicial and that, therefore, their decisions are not judicial decisions in judicial proceedings and cannot support a plea of res judicata. would appear to follow from this contention that if the legislature intended at a decision under this Ordinance should be a bar to subsequent proceedings the courts it would have so enacted in unmistakable terms.

In this connection, Mr. Ibekwe, for the appellants, drew a distinction between judicial decision in judicial proceedings, and an administrative decision arrived in accordance with judicial principles, basing his argument upon a statement Spencer Bower on Res judicata, a text-book which I agree is entitled to respect. is a nice distinction but I do not think that it avails in respect of the proceedings a statutory authority set up for the purpose and with the plain intent of deciding disputes.

The short answer is, indeed, to be found in the words of the learned author of the work cited to us by counsel, Spencer Bower on the Doctrine of Res judicata 1st Edition) at p. 16. “Every domestic forum, that is to say:-

“any arbitrator or arbitrators or other persons or body of persons who may be vested with judical authority to hear and determine a particular dispute or class of dispute by consent of the disputants or by an order of the Court or by a provision of a statute, is undoubtedly a judicial tribunal and its awards are as conclusive and unimpeachable as the decisions of any of the constituted Courts of the realm”.

There is no doubt in my mind that a District Officer acting under section 3 of Inter-Tribal Boundary Settlement Ordinance is a person vested with judicial authority to hear and determine a class of disputes by the provision of a statute that when so acting he is a judicial tribunal and his decision, subject to the rights of review thereof provided by the statute, is conclusive upon the issue so determined by him. There is equally no doubt in my mind that the plaintiffs in the present action are seeking to question a decision which is conclusive and that the learned Judge was right in holding that the matter being res judicata the Court was precluded from entertaining it.

In my opinion the plaintiffs' action was rightly dismissed and I would dismiss the appeal also, with costs.

Coussey, J.A. I agree. de Comarmond, S.P.J. I agree.

Appeal dismissed.

There's more. Sign in to continue reading

judy.legal is the comprehensive database of case law and legislation from Ghana, Kenya and Nigeria. Gain seamless access to over 20,000 cases, recent judgments, statutes, and rules of court.

Get started   Login