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In The Federal
Supreme Court
On
Monday, the
12th
day of November 1962
Before Their
Lordships
F.S.C. 344/1960
Between
And
Judgement
of the Court
Delivered by
Vahe
Bairamian.
F.J.
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.
The questions
raised in this appeal are:
(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.
In the previous
case (No. 33/56) before the Native Court of Mbatechete,
the plaintiff 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.
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.
The ground of
appeal argued is that
The learned Judge
in the Court below is wrong in law when he held that the issue of tenancy in
Mbatechete Native Court suit 33/1956 was res
judicata.
It must be
admitted that the judgment is not consistent. At one point it states that
The County Court
did consider it (viz. the
judgment of the Senior Administrative Officer in the former suit) and
rightly disregarded the remark that the respondents had failed to prove
title, which was not directly in issue, but the second arm, that no tenancy
was proved and the dismissal of the claim for rent was not given its due
weight.
If title was not
directly in issue, then one of the elements of res
judicata was absent. 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. Ultimately the judgment states that
In the
circumstances of this case, if the issue of tenancy is res
judicata, so is the issue of title since one
is based upon the other.
That seems to say
this: the plaintiffs claimed that the defendant was their tenant as a person
to whom they had granted land of their own to build on and pay rent for; so
the claim of tenancy was based on a claim of ownership; so the former
judgment was conclusive on title as well as on tenancy by lease. In effect
the learned Judge regarded title as being a fact directly in issue in the
former case by necessary implication.
The argument for
the plaintiffs in their appeal before us was that the claim in the former
suit was for rent; that the issue there was whether the defendant owed rent;
and that was what the Native Court adjudicated upon: there was no issue on
title, according to the argument, and the case was not fought on that issue;
the dismissal of the suit by the Senior Administrative officer decided
nothing, as the suit was not for a declaration of title: further, according
to the argument, if the defendant tried to raise the issue of title, he did
so too late.
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 53 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.
The following
authorities were cited in the course of the hearing of the appeal: on the
plaintiffs' behalf
(1)
Spencer Bower on Res Judicata,
which is not available in our library;
(2)
Halsbury's Laws of England
(2nd Ed,) vol. 13, paragraphs 466 and 488, which is discussed and applied in
(3)
Commissioner of Lands v. Abraham and others, 19
N.L.R., 1, but that case differs from the
present case;
(4)
Moss v. Anglo-Egyptian Navigation Co., (1865), 1 Ch.
App. Cas, which is included in a footnote in
Halsbury to paragraph 488; and
(5)
Dedeke and others v. Williams
and another, 10, W.A.C.A. 164, which is not
relevant here.
The defendant's
counsel relied on Bell v. Holmes, (1956), 3 All
E.R., 449, which is illuminating. The rule of res
judicata is stated at page 454 from
Ord v. Ord,
(1923)2 K.B.432, in these words
If the res -
the thing actually and directly in dispute - has been already
adjudicated, of course by a competent court, it cannot be litigated again.
The following
sentence, quoted at page 455 from Hunter v. Stewart, (1861), 45 De
G.F. & J. 168, at p. 178; 45
E.R. 1148 at p.1152, is also especially worth
repeating
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.
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.
Although the
competency of the court in the former suit was not raised as a question at
any stage in the present suit, or in the first argument of learned counsel
for the appellants under their ground of appeal, it arose incidentally in
the course of the answer of the respondent's learned counsel at the hearing
of the appeal, in connection with the order made by the District Officer (Mr
Grisman) who heard the first appeal from the
Native Court and said this
I study the
record and consider that Court should have called as Court's witnesses the
two remaining sub-families of Umuonala family.
The case could be determined on the strength of their evidence without
trying to compel the defendant to bring an action for title to the land in
dispute. It is for the plaintiff to prove title, if anyone does. The appeal
succeeds.
I set aside the
judgment of the Court below and order that the case be re-opened to enable
witnesses to be called from the other two subfamilies of
Umuonala.
(The Native Court
had been of opinion that the defendant should bring an action for title: the
District Officer rightly said that it was for the plaintiff to prove title.)
The suggestion is that the subsequent proceedings in the Native Court were a
nullity. They begin thus
The Record of
proceedings in the previous hearing read and interpreted before the hearing
of the bench.
The District Officer's remarks also read.
"Q. by Court to
plaintiff:
What are the names of those two families whose evidence are required
in this case?
Ans.:
They are known as Umuonemum and
Akpoadimora.
"1st wit.
sworn states"
(He is a witness from one of the other subfamilies).
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 fulfilment 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.
If the court is
competent, the proceedings are not a nullity; but they may be attacked on
the ground of irregularity in the conduct of the trial; the argument will be
that the irregularity was so grave as to affect the fairness of the trial
and the soundness of the adjudication. It may turn out that the party
complaining was to blame, or had acquiesced in the irregularity; or that it
was trivial; in which case the appeal court may not think fit to set aside
the judgment. A defect in procedure is not always fatal.
To revert to the
portions of record quoted above. the Native
Court, the instead of having a full re-hearing, had the evidence of the
former witnesses read out, and heard only witnesses from the other
sub-families. That was a defect in procedure; neither party complained of it
in the subsequent appeals. The re-hearing was not a nullity on that account.
If it was a
nullity, it would be, under condition (3) of the above statement on
competence, on the ground that the District Officer's order, which initiated
the re-hearing, was bad in law. The order was in these terms
I set aside the
judgment of the Court below and order that the case be re-opened to enable
witnesses to be called from the other two subfamilies of
Umuonala.
If that means
that the re-hearing is to be confined to witnesses from those sub-families,
the order is bad; if it means that there is to be a re-hearing for the sake
of enabling such witnesses to be heard but does not confine it to them, it
is not bad.
It may be
suggested that the order is ambiguous and should be interpreted in the light
of the paragraph which precedes it; but that is itself ambiguous and in my
view cannot have any real weight. For my part I think that the order should
be interpreted in the light of the maxim ut
res magis valeat,
and the second meaning which saves the order, should be adopted.
Moreover, it was so understood by the Native Court to which it was
addressed: at the outset that court had the former evidence read out,
presumably as a method of incorporating it and of saving itself from hearing
it again.
I therefore think
that the re-hearing was not a nullity. At the same time I should add that as
the point arose incidentally ex improvise, it was not argued at all
fully and no cases were cited.
That is why I
dealt with it without citing any cases. There are plenty of them, both local
and English, and some day, if the point is raised in an appeal, it will no
doubt be better argued and decided.
Interest
reipublicae ut sit
finis litium,
is the reason
behind res judicata. The parties have
spent an inordinate amount of money over a piece of land of about 100 feet
by 50 at a village, and it is time that the litigation was at an end.
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.
Judgement
delivered by
Sir Lionel Brett.
F.J.
I have had the
opportunity of reading the judgment which has been delivered by
Bairamian, F.J., and
I concur in the proposal to dismiss the appeal. I
recognise the force of the argument that on their most natural
interpretation the words used by the District Officer in ordering the case
to be "re-opened" amount to an order which he had no power to make, and that
may well be the interpretation which he intended them to bear, but I agree
with Bairamian, F.J.,
in the view that the words are capable of bearing the meaning which the
Native Court in fact put upon them and which saves the order from
invalidity, and I also agree that this Court will not be departing from the
accepted principles of construction in holding that that is their true
meaning.
I would only add
that if the order for the case to be re-opened was invalid it would follow
from the decision of this Court in Ude
v. Agu (1961) All
N.L.R. 65, that the order setting aside the previous judgment of the
Native Court was invalid also, since "a naked power to set aside judgments
is not provided for by section 40" of the former Native Courts Ordinance. Mr
Shyngle did not submit that the previous
judgment constituted res judicata in his
favour, and on the view which I take of the
effect of the order it is unnecessary for me to express an opinion on
whether the point would now be open to the appellants.
Dissenting
Judgement delivered by
John
Idowu Conrad Taylor. F.J
The plaintiffs
sued the defendant in the Native Court of Mbateghete
for a declaration of title to land known as "Aniuno-Isigwu".
In giving Judgment on the llth August, 1958, the
Court held as follows:
We have every
reason to believe that the land belongs to the plaintiffs. We therefore find
the land for the plaintiffs because the title has now been proved beyond all
doubts.
Against this
Judgment the defendant appealed to the County Court Grade "A", which held as
follows:
The
Plaintiffs/Respondents have made out their title case against the
defendant-appellant but so far the defendant is occupying the compound
land, we are awarding the Plaintiffs/Respondents
a Reversionary Title.
A further appeal
was lodged by the defendant to the Magistrate's Court
holden at Awka, and on the 23rd
day of May, 1959, the Learned Magistrate confirmed the decision of the
County Court and dismissed the appeal. Although the effect of a previous
Suit No. 33/56 in the previous proceedings was dealt with in the other
Courts and evidence led about that Suit, it is in the Magistrate's Court
that we find the legal effect of that Suit dealt with. The Magistrate held,
inter alia, that:
It is also not
correct that the matter is res judicata.
The claim in the suit No. 33/56 was for recovery of Rent and the
Administrative Officer with Resident's Judicial Powers found that plaintiff
has failed to prove title to the land on which defendant
has his house. On this and on some other grounds he dismissed the
claim. The Deputy Governor condemned his judgment. It will be noted that he
did not find that the land does not belong to the plaintiff: all he said was
that the plaintiff failed to prove his title which in that case the
plaintiff was not out to do.
The defendant
appealed further to the High Court, which on the 23rd November, 1959,
allowed the appeal and set aside the decisions of the Courts below. The
Learned Judge on appeal held, inter alia, that:
The Respondents
base their claim to a declaration of title on the alleged tenancy; if they
fail in proving a tenancy, they also fail in asserting their title; they
have failed in proving alleged tenancy because the issues decided in a suit
as between the same parties are conclusive and cannot be a matter of further
litigation between them (Outram v.
Morewood, 3 East, 346, 355, 358, and
Priestman v. Thomas, 9
P.D. 70, 210).
The judgment is
not only conclusive with reference to the actual matter decided but to the
grounds for the decision.
The plaintiffs
have appealed to this Court from the Judgment of the High Court of the
Onitsha Division. In addition to the general grounds of appeal against the
evidence, two additional grounds were filed and argued with leave of this
Court, and they read thus:
1.
Learned Judge misdirected himself when he said at page 39, line 19 of
the record that "the respondents base their claim to a declaration of title
on the alleged tenancy; if they fail in proving a tenancy, they also fail in
asserting their title;"
2.
The Learned Judge in the Court below is wrong in law when he held
that the issue of tenancy raised in the Mbateghete
Native Court Suit 33/1956 is res judicata.
I think it is
important at the outset to look at Suit No. 33/56 and to decide what effect
it has on the case on appeal before us. In that Suit the
present ; appellants sued the present respondent for the
following:
Recovery of 195
yams, 13 fowls, 13 pots of palm wine and 13 Kola-nuts being the customary
land rental due from defendant for 13 years. The lease having been granted
for building purposes in 1941 out of which the defendant satisfied the
conditions for 2 years only and has since failed. Total cash value of rental
- £20.
The Native Court
gave Judgment for the plaintiff for the sum of £20, being arrears of rent.
There are other portions of the Judgment which deal with title to the area
in dispute and which were the subject matter of adverse comment in later
proceedings, but I do not for the moment consider them relevant for the
point to which I am leading. This Judgment went on appeal before the
District Officer. He heard it as an appeal and made the following order:
I study the
record and consider that Court should have called as Court's witnesses the
two remaining sub-families of Umuonala family.
The case could be determined on the strength of their evidence without
trying to compel the defendant to bring an action for title to the land in
dispute. It is for the plaintiff to prove title, if anyone does. The appeal
succeeds.
I set aside the
judgment of the Court below and order that the case be re-opened to enable
witnesses to be called from the other two subfamilies of
Umuonala.
The case went
back to the Native Court, and a Bench consisting of three at of the five
Judges who delivered Judgment, and four who sat over the case when it began
on the 6th July, 1956, re-opened the case on the 17th September, 1956, as
ordered by the District Officer. On the 8th October, 1956, when
further evidence was heard, this Bench had increased to five. The record,
when the case was reopened, reads as follows:
The Record of
proceedings in the previous hearing read and interpreted before the hearing
of the bench.
The District Officer's remarks also read.
"Q. by Court to
plaintiff:
What are the names of those two families whose evidence are required
in this case?
Ans.:
They are known as Umuonemum and
Akpoadimora.
The witnesses
were than called as well as some others called by the Court, at the end of
which the record reads as follows:
We have reheard
the case and also heard new witnesses produced ...
At the hearing of
this appeal I brought this matter to the notice of Mr
Sofola for the respondent and Shyngle for
the appellants, as I thought the order of the District Officer was one he
was not empowered by law to make and therefore a matter affecting his
jurisdiction. It is true that a full dress argument did not develop on the
point. Mr Sofola contended that the proceedings
in Suit 33/56 were not a nullity as the res was not affected.
References were also made to ss. 33 and 40 of the Native Courts Ordinance,
Cap. 142, Vol. 4 of the 1948 Laws of Nigeria. Mr
Shyngle on the other hand contended that once
the District Officer had no power to send a case back for further evidence
to be take the whole proceedings are a nullity, and that that was a matter
which could be taken in this appeal.
I shall first
deal with the question as to whether this was a matter that could be taken
up by the Appeal Court itself. Order VII, rule 2(6) of the Federal Supreme
Court Rules provides that:
Notwithstanding
the foregoing provisions the Court in deciding the appeal shall not be
confined to the grounds set forth by the appellant:
Provided that the
Court shall not if it allows the appeal rest its decision on any ground not
set forth by the appellant unless the respondent has had sufficient
opportunity of contesting the cause on that ground.
As I said earlier
in this judgment, Counsel for both sides were invited by me to adduce
arguments on this point, and though there was no full dress argument,
neither Counsel sought for an adjournment with a view to making preparations
for a more detailed argument.
The Judgment of
the Learned Judge in the Court below rests on the point that the decision in
Suit 33/1956 is res judicata, and Learned
Counsel for the appellants has filed grounds of appeal attacking the
judgment and the finding of res judicata.
In my view if it becomes apparent on the record that a judgment which is
relied on as res judicata is in fact a
nullity through excess or lack of Jurisdiction, it is the duty of trial and
an Appeal Court of its own motion to take up the point provided opportunity
is given to both sides to adduce arguments on the issue.
In the case of
Westminister Bank Ltd. v. Edwards,
(1942) A.C. 529,
Viscount Simon, L.C.,
says this at page 533:
Moreover, the
question was not in issue. There are of course, cases in which a Court
should itself take an objection of its own, even though the point is not
raised by any parties to it.
After giving
certain instances of when this may be done, the judgment continues thus:
Again, a Court
not only may, but should, take objection where the absence of jurisdiction
is apparent on the face of the proceedings. Thus an appellate Court not only
may, but must, take objection that it has no jurisdiction to hear an appeal
if it is apparent that no right of appeal exists.
Lord Wright,
at
page 536 of the same report, says this:
Now it is clear
that a Court is not entitled but bound to put an end to proceedings if at
any stage and by any means it becomes manifest that they are incompetent. It
can do so of its own initiative, even though the parties have consented to
the irregularity, because as Willes, J., said in
City of London Corporation v. Cox (3) in the course of giving the
answers of the Judges to this House,
"mere
acquiescence does not give jurisdiction."
In
Farquharson v. Morgan (4) Lord
Halsbury states the principle thus:—
It has been long
settled that, where an objection to the jurisdiction of an inferior Court
appears on the face of the proceedings, it is immaterial by what means and
by whom the Court is informed of such objection. The Court must protect the
prerogative of the Crown and the due course of the administration of Justice
by prohibiting the inferior Court from proceeding in matters as to which it
is apparent that it has no jurisdiction.
That was a case
of prohibition, but I think the general principle applies equally to the
duty of the Court to take the objection when it becomes apparent in the
course of proceedings before it in an appeal.
The words of
Lord Wright in the passage to which I have referred are very strong
indeed
"at
any stage and by any means".
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.
Now the
power of the District Officer on hearing an appeal are
contained in s. 40 of the aforesaid Ordinance, which reads thus:
A Native Court of
Appeal, a Magistrate's Court, the High Court, a District Officer, a Resident
or the Governor in the exercise of his appellate jurisdiction under this
Ordnance may
(a)
after rehearing the whole case or not, make any such Order or pass any such
Sentence as the Court of first instance could have made or passed in such
cause or matter;
(b)
order
any such cause or matter to be reheard before the Court of first instance or
before any other native court or before any Magistrate's Court.
It is with s.
40(b) that we are here concerned, for the District Officer never reheard the
case. 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.
In the case of
Timitimi v.
Amabebe, 14 W.A.C.A. 374 at 377,
Coussey JA.
said
that:
There is a
distinction between an order or judgment which a Court is not competent to
make and an order which, even if erroneous in law or in fact, is within the
Court's competency.
In my view the
present case on appeal comes within the former. The Learned Justice of
Appeal went on to say that where there is no jurisdiction the proceedings
are void and are of no probative force between the parties.
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.
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.
I have refrained
from saying anything about the effect of the change in the composition of
the Court for two reasons: (1) because arguments were not invited on the
point, it not having been noticed at the hearing, and
(2) the point on which argument was invited is sufficient to dispose
of Appeal No. 33/56. That being the case, can the Judgment of the Judge on
Appeal, based as it was on the finding that the Judgment in Appeal No. 33/56
operated as res judicata,
stand? In my view it cannot. Mr
Shyngle for the appellants
has argued that there are concurrent findings of fact of three Courts
in favour of the appellants, and has asked this Court to confirm the
decision of the Magistrate to which I have already referred. This conclusion
is inescapable, for the Learned Judge on Appeal in the High Court did not
deal with the facts of the case. The Learned Counsel for the respondent has
put his arguments on the issue of res judicata
and nothing else.
For these reasons
I beg to differ from the majority Judgment delivered by My Lord,
Bairamian.
F.J. I would allow the appeal, set aside
the Judgment of the High Court and restore that of the Magistrate. I would
award the appellants the costs of the appeal.
Counsel
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