Okonji Ngwo & Ors Vs Raphael Monye & Ors (1970)

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COKER, JSC.

The appellants in this case are the defendants in the High Court, Asaba (Suit No. A/4/65) and were sued as representatives of the Ogbeilo family of Asaba. The respondents, who were the plaintiffs in the court below are representatives of the Idumugbe family of Asaba and had sued as such.

In the action the plaintiffs had asked for a declaration that in accordance with there terms of a settlement between them in 1936 the plaintiffs are entitled to exclusive possession of certain lands known and called “Akwu-Ulo” and delineted and verged “pink” on a plan No. GA225/57 without the payment of any tribute to the defendants. The plaintiffs also claim an injunction to restrain the defendants from interfering with the possessory rights of the plaintiffs in accordance with the terms of the settlement.

The nature of the claim, i.e. one for a declaration of possessory rights, at once suggests that the issue of title looms in the background and in the context of the present case that issue had been the subject of dispute between the parties for a considerable length of time. As a result of a number of cases involving quite prolonged litigation between them, the plaintiffs and the defendants agreed to settle their dispute out of court.

They did so in 1936 and a letter admitted in evidence in the present proceedings as exhibit P2 (dated the 6th August, 1936) was sent by the representatives of both parties to the High Court, Onitsha.

That letter reads as follows:-   “At Ogwashi-Uku, 6th August, 1936. His Honour, The Assistant Judge, Onitsha. At Ogwashi-Uku.  Your Honour, Case No. 0/28/1936 Obi Ugboko representing the family of Ogbeilo versus Okocha and Obi Mordi representing the family of ldumugbe. We the undersigned, plaintiff-defendant, as representing respectively the family of Ogbeilo and the family of Idumugbe of Asaba hereby notify this Honourable Court that we have amicably settled the above case, out of court.

Dated at Ogwashi-Uku the 6th day of August, 1936. We have the honour to be, Your honour’s obedient Servants Ogi Ugboko (His thumb impression plaintiff) Charles Okocha (His thumb impression defendant) It is right to point out even at this stage of this judgement that the letter, exhibit P2, was the culmination of a series of events characterising the period of litigation between the parties and admirably summarised by the learned trial judge in the course of his judgement in this case.

Although it is manifest from the proceedings that there were some cases between the parties before then, it is convenient to start with a case in which Mr. Pyke-Nott, District Officer, gave judgement in the Provicial Court at Ogwashi-Uku for damages assessed at £14-14-6d against the present plaintiffs. This judgement will be referred to hereafter in this judgement as “the 1931 judgement”.

The plaintiffs appealed against that judgement to the then Supreme Court, Onitsha and their appeal was heard by Mr. Justice Graham-Paul who by order dated the 26th day of February, 1934, allowed the appeal of the plaintiffs formally set aside “the 1931 judgement” and directed that the appeal be remitted “to the court below to be dealt with according to the terms set out in the judgement herein”.

The order of Mr. Justice Graham-Paul was admitted in evidence in the present proceedings as exhibit P5. Mr. Justice Graham-Paul had set aside “the 1931 judgement” and directed that the appeal be re-heard. It was so re-heard by Capt. Ninian Scott, magistrate, at Benin City who gave title to the present defendants (see exhibit P6).

The plaintiffs then appealed against this judgement and their appeal was heard by Mr. Justice Jackson (see exhibit P7) who, on the 23rd day of July, 1935, in the High Court, Warri, holden at Ogwashi-Uku, allowed the appeal and set aside the judgement of the magistrate’s court on the ground that the magistrate had no jurisdiction to hear the case and that the hearing in that case was a nullity. He also ordered as follows:- “the suit may be re-listed free in the High Court as the original order sending the case for hearing to the magistrate’s court was made under a misapprehension of the jusrisdiction of that court.”

Apparently the parties were up again in litigation against each before Mr. Justice John in 1936 when the letter exhibit P2 (already referred to) was present to the court and the case was accordingly struct out. In 1957 in Suit No. W/42/57 the plaintiffs again sued, inter alia, the defendants in the High Court, Benin, for declaration of title, trespass and injunction in respect of this same land and Fatai-Williams, J. (as he then was) giving judgement on the 30th August, 1962, in favour of the plaintiffs for trespass and injunction against the

PAGE| 4 defendants refused their claim for a declaration of title. (See exhibit D 1). The defendants appealed against this judgement to the Federal Supreme Court and on the 9th November, 1964, the Supreme Court (as it had then become) allowed the appeal of the defendants and set aside the judgement of the High Court, Benin. (See exhibit P3).

Then follows the present proceedings the appeal on which is now before us. It seems to be common ground, firstly that at least since the judgement of Jackson, Asst. J. in 1935 (see exhibit P7) there was a comparatively long period of quiet during which neither of the parties went to court and, secondly, that although Jackson, Asst. J. ordered that the case might be re-listed free of court charges and although it was so re-listed it was not in fact re-heard at any time as the parties settled out of court.

The period of silence was however disturbed in 1957 when the present plaintiffs instituted an action against the present defendants in the High Court, Benin, claiming a declaration of title to Akwu-Ulo land, damages for trespass and injunction. As stated before, the plaintiffs got judgement for trespass and injunction before Fatai-Williams, J. and the proceedings and judgement in that case were put in evidence in the present proceedings as exhibit D 1.

The Supreme Court in exhibit P3 had set aside the judgement of Fatayi-Williams, J. but made no formal consequential orders. In the present action, instituted by writ dated the 5th day of February, 1965, the plaintiffs claim, as stated before, a declaration of possessory rights and an injunction in accordance with the terms of settlement of 1936. Pleadings were ordered and delivered. By their statement of claim the plain-tiffs, i.e. the Ogbeilos, aver that there had been many court cases between the parties and indeed enumerated them. They aver as well that in the course of a customary settlement between them and the defendants in 1936 the parties agreed that the defendants should take and accept a parcel of land known as “Akwuose” and that the plaintiffs should be entitled to retain the possession of Akwu-Ulo land without the payment of tribute to the defendants.

The plaintiffs also aver, and the defendants by their statement of defence admit, that the parties are both members of the Onaja family of Asaba having both descended from a common progenitor by name Onaja. By their statement of defence the defendants further aver that all the issues raised in the statement of claim are res judicata in that the plaintiffs are estopped by the several cases already referred to and that the judgement of the Supreme Court, i.e. exhibit P3 will be founded upon at the trial in support of the plea of res judicata.

The parties then gave evidence and in a reserved judgement, Prest, J. held that:- (i) the many cases which the parties referred did not constitute any definite determination of the title to the land in dispute and in particular that the “1931 judgement” on which the defendants relied was in fact set aside on appeal by Graham-Paul, J. as per exhibit P5:  (ii) that the Supreme Court, in its judgement of the 9th November, 1964 (exhibit P3) was not shown and so was unaware of the nullification of “the 1931 judgement” of Mr. Pyke-Nott: (iii) the judgement of the Supreme Court (exhibit P3) could not in any case constitute res judicata as the question of the settlement between the parties was not decided therein; (iv) the judgement exhibit P3 did not take notice of exhibit P5 which had set aside “the 1931 judgement” and (v) that there was indeed a customary settlement between the parties in 1936 and that the terms of that settlement were that the plaintiffs should occupy Akwu-Ulo land without the payment of tribute. He ended his judgement as follows:- “I am satisfied from the evidence that the terms of the settlement were that the plaintiffs should have the exclusive possession of Akwu-Ulo land whilst the defendants should retain Akwu-Ose land.

I do not believe that one of the terms of the settlement was that the plaintiffs should pay tribute to the defendants for the use of Akwu-Ulo land. That the latter could not have been a term of the settlement is obvious from the fact that the bone of contention between the parties has always been the refusal of the plaintiff to pay tribute to the defendants for the use of Akwu-Ulo land, on the ground that other families do not pay any tributes.” The defendants have appealed against that judgement to this Court and b

Other Citation: (1970) LCN/1810(SC)