Gabriel Madukolu & Ors v. Johnson Nkemdilim [1962]



Gabriel Madukolu & Ors v. Johnson Nkemdilim [1962] – FSC

by NSA PaulPipAr


– Administrative Law

⦿ TAG(S)

– Res judicata.
– Land & Rent.


Gabriel Madukolu & Ors


Johnson Nkemdilim


[1962] NGSC 59




Vahe Bairamian. F.J.



– Onyekwuluje.


– Sofola.


⦿ FACT (as relating to the issues)

This appeal from the High Court of the Eastern Region (Betuel. J. at Onitsha on 23 November, 1959) raises the questions of res judicata and turns on the application of Section 53 of the Evidence Act, which provides that “Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the court, and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action it is intended to be proved.”.

In the previous case (No. 33/56) before the Native Court of Mbatechete, the plaintiff (Madukolu) claimed for his family yams etc., as customary rent for thirteen years under a lease given to the defendant in 1942 for building purposes, alleging that the defendant paid for two years and stopped. The defendant did not admit the claim. The plaintiff gave evidence that his family granted the defendant a piece of land to build on; that he brought them palm wine, and that they agreed on the rent, which he stopped paying after the ensuing year.

The very first question put by the defendant was “In whose lifetime did I come to you with palm wine?” Thus the plaintiff was alleging a grant of land, which the defendant was denying.

At the outset of his evidence the defendant said “The land on which I live is ours.” The plaintiff asked him “Can you swear with your brothers that his land in question belongs to you?” The defendant answered “yes”. After the defendant’s case was concluded, the court re-opened the hearing, and received from the plaintiff a copy of the proceedings in case No. 24/1937 as showing that his family had obtained title against the defendant’s late father.

The court eventually gave judgment for the plaintiff relying on that case as proving that “where the defendant put up his building belongs to the plaintiff’; and the court gave judgment for payment of rent.

Plainly enough the dispute was on whether the plaintiff’s family were the owners of the land on which the defendant had his house; the title was actually decided by the court; and that appeared from the judgment itself to be the ground on which the judgment for payment of rent was based.

Available:  Carlen (Nig.) Limited V. University of Jos & Anor. (SC.74/1992, 28th Jan 1994)

There were proceedings on appeal which ended in a finding by the Senior Administrative officer, that the plaintiff had failed to prove title to the land on which the defendant had his house and that there was inadequate evidence to support his claim that the defendant had leased the land in dispute from him; the judgment of the Native Court was set aside and the claim dismissed; and that decision was confirmed by the Deputy Governor on 23rd January, 1957.

A year or so later, Gabriel Madukolu, who had brought the 1956 suit on his family’s behalf, together with others sued the defendant anew in the Native Court claiming declaration of title to a parcel of land known and called “Aniuno-Isigwu” where the defendant put up his compound. The defendant denied the claim. In questioning Madukolu the defendant reminded him of the former case. When the defendant gave evidence, he began by saying that the case was res judicata in the former case No. 33/56, which he had won. The plaintiff asked him “Do you know whether it was title to land or rent was claimed in civil suit No. 33/56 which you said you won?” And the defendant answered “It was case for rent”.

The judgment of the Native Court was for the plaintiffs; it did not deal with the plea of res judicata. Res judicata was included as a ground of complaint in the appeal to the County Court. The County Court observed that the former case was for payment of rent and not for declaration of title; that the appellate judgment in that case was good so far as rent was concerned, but ultra vires in regard to title. The County Court awarded the plaintiffs a reversionary title, which was upheld by the Magistrate, but reversed by the High Court; hence this appeal by the plaintiffs.


1. Whether title to land was a fact directly in issue in the previous case between the parties.

2. Whether the title was actually decided by the court.

3. Whether the title appears from the judgment itself to be the ground on which it was based.





i. The rule of res judicata is derived from the maxim of nemo debet bis vexaripro eadem causa. It is the causa that matters; and a plaintiff cannot, by formulating a fresh claim, re-litigate the same causa. That is why section of the Evidence Act does not speak of the claim, but of the facts directly in issue in the previous case. The previous case was in the Native Court, and as there are no pleadings, one must go by the substance as disclosed in the proceedings. The dispute was on title, and the ultimate decision was against the plaintiffs on their basic cause of action, that they were the owners and grantors of the land occupied by the defendant; nor is it true that he raised the issue of title too late. The plaintiffs were debarred by that decision from claiming a declaration of title in a fresh case based on the same cause of action.

Available:  Tasiu Rabiu V. Aishatu Amadu (SC.147/2003, 13 Jan 2012)

ii. In both the former and the present suit in the Native Court the evidence given was on title, and the res adjudicated upon was the title of the plaintiffs to the land on which the defendant had his house.

The following order is proposed: The appeal from the order of the High Court of the Eastern Region dated the 23rd November, 1959, in Appeal No. 0/35/A1959 of the Onitsha Judicial Division, is dismissed, with costs to the respondent, which will be assessed after hearing the parties.

***DISSENTING – John Idowu Conrad Taylor. F.J.
i. I now turn to the order of the District Officer, for if he acted in excess of the jurisdiction given him by the Native Courts Ordinance, if he had no power to make the order which he in fact made, then that order is a nullity, and no matter what happened subsequently in the Native Court, no matter what the parties may have agreed upon, the proceedings subsequent to the order are a nullity.

ii. Was the order of the District Officer an order that the case should be reheard or was it an order sending the case back for certain witnesses to be heard? If it was the former, the order was perfectly valid; if the latter, it was invalid.

iii. I have set out above the Order made by the District Officer, a person versed in the English language, though perhaps not a member of the Legal profession, and I cannot convince myself that when one reads the whole of the Order as set out by me above, he meant anything other than, and was understood by the Court below as meaning anything other than what he said, i.e. that the case should be reopened, not retried in toto, but reopened so as to enable certain witnesses to be called. This order is in my view a nullity, with the result that the subsequent proceedings to this order are also a nullity.

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iv. I am grateful to my Lord Brett. F.J., for the opportunity given me of reading the remarks which have just been made by him, particularly with respect to the decision of this Court in Ude v. Agu (1961) All N.L.R. 65.1 would humbly agree with the view that the whole of the order of the District Officer, and not just a portion of it, is invalid if the order to reopen is invalid. This would leave the Judgment of the Native Court of the 16th July, 1956, as the subsisting Judgment. As my Lord has said in his remarks no reliance has been placed by Mr Shyngle on this Judgment as constituting res judicata. In my judgment in determining this appeal no help can be obtained from the proceedings in 33/56. They must be ignored. In my view, if the District Officer had no jurisdiction after setting aside a Judgment of the Native Court to order a case to be reopened for the purpose of allowing further witnesses to be called, then the order and the subsequent reopening of the case are a nullity, as are the subsequent appeals based on the case.








The learned Judge gives it as his view that “The judgment is not only conclusive with reference to the actual matter decided but to the grounds for the decision.”. That is true provided that the ground for the decision relates to a fact directly in issue. – Bairamian. F.J. Madukolu v. Nkemdili [1962]


One of the criteria of the identity of two suits, in considering a plea of res judicata, is the inquiry whether the same evidence would support both. – Bairamian. F.J. Madukolu v. Nkemdili [1962]

Before discussing those portions of the record, I shall make some observations on jurisdiction and the competence of a court. Put briefly, a court is competent when (1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction: and (3) the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication. – Bairamian. F.J. Madukolu v. Nkemdili [1962]




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