(KINGDON, C.J. NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHA PAUL, C.J., SIERRA LEONE. In this appeal the appellants’ counsel after exhaustive argument, finally confined his appeal to one ground only namely that the question in dispute between the parties-the ownership of a- piece of land in Okigwi District-was re judicata in favour of the appellants by virtue of two judgments of the Native Court of Uruala given respectively in cases No. 66/1933 and 67/1933.
In our opinion this contention fails because, in our view, both the judgments in question were suspended by Mr. Leeming, the Assistant District Officer in charge of the Division, by orders made on the 29th June, 1933, and have never been re-instated.
At that time his powers were prescribed by section 17 of the Native Courts Ordinance (Cap. 5) as amended by Ordinance No, 12 of 1930. They included powers to suspend. ...annul or “otherwise modify any...decision of a Native tribunal,”
In order to get a true picture of the actual proceedings in the Native Court it is necessary to refer, as we have done, to the original Native Court Record Books; the typescript record is misleading.
The orders Mr Leeming made were in case No, 66/1933 “Case remitted to the Amala of Ndizuogu to enquire into the matter and then give evidence in Court.” and in case No. 67/1933 “Re-open for evidence of Amala as in case 66/33.” Although it is true that neither of these orders specifically suspended the two judgment, it was, in our view, clearly the intention and the effect of the orders to suspend the judgments pending enquiry and evidence by the Amala. In pursuance of the orders the Amala made the necessary enquiries and the Court sat Ito hear their evidence on the 17th July, 1933, when the two cases were “combined.” The Amala gave evidence, which was with the exception of one, unanimously in favour of the respondents in this appeal, and thereupon the Court made the following pronouncement,
“If the people of Ndiogbuonyeoma are not satisfied with “the evidence of the Amalas of Ndizuogu they may appeal to “the District Officer. Oue man Ekwebara disagreed with the “evidence of the Amalas, hence the Court did not arrive to a “steady judgment. The whole matter is still confusing vide “the evidence of Ekwebara.”
That, in our view, is the only judgment (if it can be called a Judgment) of the Native Court of Uruala, now standing in regard to the land in dispute it certainly has not the effect of restoring either of the suspended judgments and it does not operate as re, judicata in the appellant’s favour.
Thereafter Mr. Jones, another Assistant District Officer in the Chief Division, but not in charge thereof, made a further order beginning “Judgment upheld.” But by that word judgment he did not mean either of the suspended judgments, nor did he mean the Court’s pronouncement just quote. He meant the opinion of the majority of the Amala. That opinion was not a Judgment at all and whatever effect (if any) Mr. Jones’ order may have had it certainly did not have the effect of restoring the original Judgments relied upon by the appellants.
Thereafter again orders were made by the Acting Resident of the Province ordering the two cases to be transferred from Uruala Native Court to the Provincial Court to be heard de novo, and this was done, but on appeal this Court pronounced these orders to be of no effect and declared all the proceedings resulting there- from to be a nullity. This Court then stated that the effect of its order was “ to restore the judgments of the Native Tribunal in , the combined cases 66/1933 and 67/1933 in the Uruala Native Court as finally reviewed. ”This did not refer to the original judgments now relied upon by the appellants and did not have the r effect of re-instating them.
For these reasons the appeal must fail. But before leaving the matter we think it desirable to point out that in our view the learned trial Judge was wrong to go into the question of whether the land now in dispute is the same as that in dispute in the Uruala Native Court in 1933, and to find that identity was not proved. The identity was one of the agreed facts in the case, it was relied upon by both parties in their pleadings, and since one of the objects of pleadings is to shorten proceedings by ascertaining what facts are agreed so that evidence need not be led to prove them, the Court should have accepted this agreed fact as established without proof.
We may add that the question as to the effect of the orders of Messrs. Leeming and Jones was a question of law which appeared from the leadings and in our opinion it would have been better if the Court below had decided the question of law arising on the res judicata pleas of both parties as a preliminary point before going into the general evidence on the merits of the claim and defence so that at the outset of the trial on the merits the parties and the Court would have known the exact position as regards the pleas of res judicata and therefore the exact issues to be tried. The appeal is dismissed with costs assessed at 100 guineas.