Ekwenugo Okugo & Ors. V. Nweke Nwokedi & Ors. (1997)

LawGlobal-Hub Lead Judgment Report

EJIWUNMI, J.C.A. 

This appeal is against the ruling of Amaizu J in suit No. OT/25/89 wherein the plaintiffs commenced this proceedings against the defendants jointly and severally for the sum of N20,000.00 as general damages for the defendants’ trespass to the plaintiffs’ land known and called Achutu in the possession of the plaintiffs and for an injunction restraining the defendants, their servants or agents from further trespass to the said land. Pleadings were subsequently ordered and exchanged.

By the pleadings so filed the plaintiffs and the defendants joined issue on several paragraphs of their respective pleadings on the traditional evidence of ownership and possession of the disputed land. In order to identify how they joined issues in that regard, the relevant paragraphs of their pleadings would be reproduced. But before then it is clear from the pleadings that though the defendants have denied in paragraph 3 of their statement of defence that the land in dispute is called Achutu as pleaded by the plaintiffs, but they have admitted in paragraph 4 of their statement of defence that “The land claimed by the plaintiffs in dispute is shown verged pink on Plan NLS/N290/89 filed with the statement of claim but deny the boundaries, features and names indicated therein. The defendants assert that the correct features, names and boundaries are as indicated in the defendants’ plan No. NG/AN543/84 filed with this statement of defence.”

Beyond that admission of the disputed land and the consequential denial of the features of the land pleaded by the plaintiffs, the defendants denied paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34 of the statement of claim. In view of that position of the defendants, the pleadings of the plaintiffs in those paragraphs are hereby reproduced. They read:

6. The land in dispute originally belonged to the plaintiffs’ ancestor called Nsugbe, together with other pieces of land that went to make up what is now known as Nsugbe Town. He was the first man to live there.
7. The land in dispute descended by way of inheritance from Nsugbe to the plaintiffs, through generations of the plaintiffs’ ancestors, who were the descendants of the said Nsugbe.
8. Nsugbe was a son of Eri.
9. Eri was an Igala man who was a hunter and a native doctor and he hunted along the Anambra River and settled at a place called Aguleri Igbo. There he begat five sons whose names were Aguleri, Nsugbe, Igbariam, Nteje and Amanuke. He also begat one daughter whose name was Igwedo.
10. Igwedo for her part married a succession of men for whom she begat issues, and her offspring form the communities known today as Umuleri, Awkuzu and Nando.
11. The five sons of Eri grew up and were settled on the lands which today bear their respective names by their father Eri, before he left the Anambra River area and went to settle further inland at a place now called Nri town.
12. The place where he settled Nsugbe is the place now called Nsugbe town. It was virgin land, and Nsugbe was the first man to live there.
13. Nsugbe had nine sons, namely, (1) Enugu, (2) Ofianta, (3) Abba, (4) Amumu (5) Amagu, (6) Agbalagbo (7) Akpalagu, (8) Ogwari, and (9) Amaofu.
14. On the death of Nsugbe these nine sons divided their father’s lands and Ofianta took a share which included the land now in dispute.
15. Offianta, in turn, begat four sons, namely, Ikokpa, Ara, Irudigwe, and Agbudu.
16. On the death of Ofianta these four sons of his did not share his lands but enjoyed them in common.
17. The lands left by Ofianta for his sons were Atusa, Ojibilu, Owelle and Achutu.
18. It was on Achutu that Ofianta made his home, and it was there that he lived and died.
19. On his death, his sons and their descendants continued to live on Achutu and to farm it and the other lands Atusa, Ojilibu, and Owelle, in common.
20. Within Achutu was a market-place called Otu, because it was at the waterside. This market was a popular market while the Ofianta people lived on Achutu, and people came there to buy and sell from distant places.
21. Through the cover of the diversity of peoples who came to the Otu market, kidnappers also appeared, and several children of the Ofianta people got missing. For this reason the marker was nicknamed “Otu-Onya”, meaning “Trap-market” that is to say, a market was like a trap for Ofianta’s children.
22. When the kidnappers were not content to steal individual children but resorted to raiding the homes of Ofianta villagers near the waterside, the Ofianta people decided to leave Achutu entirely, and to move further inland. They accordingly abandoned Achutu (including the famous “Otu-Onya” market) as a place of habitation, and went to settle at their Owelle land – where they have lived up till today.
23. “Otu-Onya” market is shown with a YELLOW verge on the plaintiffs’ said plan No. NLS/AN 290/84, and the ruins of the habitation of the Ofianta people near Otu-Onya are also shown on that plan.
24. When the Ofianta people (the plaintiffs) were living on Achutu land they had their home around Otu-Onya market, where they formed a village. The ruins of their houses are shown on the plaintiffs’ plan.
25. The Offianta people also had juju shrines on the land in dispute which they worshipped. The most important juju was Achutu itself, whose shrine was a grove of akpu, ebenebe and other trees. They still “worship this juju, and its priest is Onuorah Mgbataogu, one of their people. The Achutu shrine is shown on the plaintiffs’ plan.
26. The second most important idol is juju which the Ofianta people worshipped on the land in dispute, and still worship up till today, is Ada Achutu. Its shrine is an ancient heap of stones which is within a very thick juju bush right in the middle of Achutu. Its priest is Onuorah Mgbataogu.
27. There are other idols whose shrines are as shown on the plaintiffs’ plan and whose chief priest is the same Onuora Mgbataogu of the plaintiff’s people.
28. When the Ofianta people moved their village from Achutu and went to live in their Owelle land, they still came to make sacrifices to their jujus on the land in dispute and to worship them, and to use the land as owners.
29. The plaintiffs also continued, up till today, to farm the whole land of Achutu.
30. When the Ofianta people, the plaintiffs, were living on Achutu, they frequently gave portions of land to other people to farm as customary tenants on yearly basis and on payment of the customary tribute. They even permitted some of their tenants to build houses on Achutu where they stayed when they came to farm on the land. But these tenants’ houses have now fallen into ruins: the ruins are shown on plaintiffs’ plan.
31. Even though they left Achutu as a place of residence, the plaintiffs have continued to exercise, up till today, maximum acts of ownership over the land, by farming the land, worshipping their idols on the land, giving portions of the land to customary tenants to farm on payment of tribute, reaping the fruits of the economic trees on the land-such as palm trees, mango trees and udala trees, and cutting the timber of other trees such as ebenebe, akpu and so on, all such trees as are shown on the plaintiffs’ plan. They also plant new ones.
32. The plaintiffs also built farm huts on the land in dispute which they use when they come to work in the farms, and they built yam barns for storing their crops. They also fished without interference in all the ponds within the land.
33. Many years ago there was a man of Nneyi village of Umuleri called Irunze. He married a daughter of Iloonyeokpa, first son of Ofianta, called Nwakume. This Irunze wanted a place to farm and was shown a portion of Achutu and he farmed it on payment of a tribute of a cock and forty seed yams, paid at harvest time. For some years he was shown different places to farm on Achutu land on payment of same tribute.
34. On lrunze’s death, his sons followed his footsteps, and each time they were shown portions of Achutu to farm on payment of the customary tribute. Lateran, other Umuleri people from Nneyi who ….. of land at Achutu.

And as the defendants also contend with the plaintiffs in respect of paragraphs 36, 37, 38, 39 & 40 of the statement of claim, those paragraphs are also reproduced hereunder beginning with paragraph 35.-

35. It was when these new people began to refuse to pay customary tribute of one person a cock and forty seed yams that the plaintiffs’ people began to refuse to show them land. Then they went to farm by force.
36. Because of this, the plaintiffs’ people sued those who thus trespassed into their land by force to the courts.
37. The first case was in 1907. Obi Chukwura, representing the plaintiffs’ family, sued Itugha of Umuleri, representing the defendants’ people, in respect of Achutu land and Otuonya – the former waterside market. Judgment was given in favour of the plaintiffs’ people as being owners of Achutu, including Otuonya. This case, No. 66 of 1907, of the Native Council Court of Onitsha will be relied upon as res judicata.
38. Again in case No. 890 in the same Native Council Court of Onitsha, a member of the defendant’91s family was charged with criminal trespass to the said Achutu land and Otuonya already awarded to the plaintiffs’91 people and was fined ?2. This was on 28/11/07, and this case will also be relied upon as res judicata.
39. After these cases the defendants’ people ceased trespassing into Achutu land (or into its Otuonya area) until 1947 when they made new incursions into the land and the plaintiffs stoutly resisted them and they left.
40. At all material times the plaintiffs were in possession of the land in dispute.
41. Then in the months of April, 1983, the defendants again came into the land in dispute without the permission or consent of the plaintiffs, farmed a small portions of it, and to reinforce themselves, brought in Abba people whom they showed areas to farm: they also secretly quarried stones from the land in dispute and carried same away. But the plaintiffs did not allow them, or their allies to stay long on the land but drove them out therefrom, and then took the instant action.

As I have already observed the defendants by their statement of defence, gave a qualified admission to the averment of the plaintiffs with regard to the location and description of the disputed land. But they pleaded further in the following paragraphs of the statement of defence as follows:-

5. The defendants deny paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, of the statement of claim.
6. The answer to paragraphs 36, 37, 38, 39, and 40 of the statement of claim the defendants assert as follows:-

(i) The cases therein referred to were all reviewed among other cases in the High Court case 0/73/57 between the same parties, to wit, Osili Nnacho & Others for Offianta Nsugbe v. Onuora Mechie for Akwuete Nneyi’97Umuleri in respect of the same portion of land as in this case and judgment was entered for the present defendants in that case dismissing the present plaintiffs’91 claims for a declaration of title to the land in dispute, ?40.00 damages for trespass ?300; ’97 for mesne profits, recovery of possession and injunction. This judgment which is hereby pleaded will be founded upon.

(ii) Defendants assert that they have from time immemorial been owners in possession of a vast area of land including the land in dispute and verged blue on their said plan No. MC/AN.543/84. They have their homesteads (original villages) therein.

(iii) As owners in possession the defendants had exercised maximum acts of ownership and possession not only in respect of land in dispute verged pink on their said plan and verged pink on the plaintiffs’ plan but also in respect of surrounding lands within the area verged blue on the said defendants’ plan acts of ownership and possession including having their homestead thereon, farming thereon, letting out portions to tenants and utilizing economic trees thereon. Within the area verged pink on both plans the defendants in 1898 granted the portion of the land in dispute verged brown to the Royal Niger Company by agreement dated 25th June, 1898 and registered as No. 109 in Volume 2 of the Niger Lands Agreement lodged in the Lands Registry, Lagos, This grant will be founded upon. The defendants also made a grant of the portion of land verged green on their said plan No. MC/AN.543/84 to Anambra State Government for Federal Aluminium Smelter Project (Reference Public Notice 51 of 17th March, 1983 and acquisition is to be paid to the defendants.

7. The defendants have always protected their title to and interest in the land in dispute and have defended and successfully resisted all plaintiffs’ claims to the land in dispute especially in Suits 0/32/1947 and appeals thereon and 0/75/57 which are hereby pleaded.
8. In consequence of the facts pleaded in paragraphs (6) and (7) of the statement of defence the plaintiffs are estopped from asserting ownership and possession of the land in dispute and/or from pursuing their present claims and will rely on the law of estoppel by res judicata.
9. The defendants deny that the plaintiffs are entitled as claimed or at all and hereby plead as follows –

(i) Ownership before the Land Use Decree 1978 and long possession

(ii) Estoppel by res judicata

(iii) Delay and acquiescence.

However before the suit could be heard on the pleadings, the defendants by their counsel applied by a motion on notice dated 17th September, 1985, for an order dismissing the whole suit and/or proceedings in this case on grounds of (i) res judicata and/or (ii) Abuse of process of the court and for such further order or orders as the Court may deem fit to make in the circumstances. The motion which was supported by an eight paragraphed affidavit sworn to by one Vincent Nwasi of Akwuete Quarter of Nnenyi village of Umuleri Town. The contents of the affidavit being a recapitulation of the defendants’ averments in their statement of defence, already reproduced above. But attached also, to the said affidavit, are exhibits marked’ A’ and’ A1′ being certified copies of the judgment and orders made in suit 0/73/57.

The plaintiffs responded to the defendants’ motion by filing, through one Uyammadu Oguguo of Ofianta Village, Nsugbe, an eight paragraphed counter affidavit. Apart from repeating certain of the averments made in their statement of claim he deposed in paragraphs 5, 6, & 7 of the said counter affidavit thus:-

“5. That the cases of 1907 were between the defendants and us over the same land.

6. That by reason of the cases stated above the plaintiffs say that the defendants are estopped per res judicata from contesting the above suit. The plaintiffs will also contend that any other case inconsistent with case No. 66 of 1907 is null and void and of no effect.
7. That I exhibit and mark as Exhibit ‘A’ a copy of the said judgment of 1907 aforesaid.

With that motion, the affidavit and counter affidavit filed by the parties the stage was set for the hearing of the said motion. At the hearing, however, and before addresses by learned counsel, leave was granted by the lower court for the parties to call witnesses. For the defendant’s applicants two witnesses were called. The first was Asst. Chief Registrar of the Otuocha High Court who tendered documents tendered in Suit 0/73/57. between Osili Nnacha & Ors. for Ofianta Nsugbe v. Onuora Machie & Ors. for Awete Nneyi Umuleri. These include Plan No. 19/46 marked Exh. 1; Plan No. MEC/197/65 marked Exh. 2; Plan No. EC 12/48, marked Exhibit 3; Plan No. SE44/61. Exh 4 and certified copy of the judgment and order thereon in the suit, dated 22/5/67 marked Exhibit 5. The next witness was Godfrey Chukwuma Odumodu, a licensed surveyor who tendered the composite plan No. MG/AN543/84 Exhibit 6, which he produced from old plans tendered in suits 0/34/47 and 0/73/57. The plaintiffs also called a witness, Pius ikweoke who inter alia, tendered as Exhibit 7, the judgment of the Native Court in 1907, and as Exhibit 8, a copy of the Survey Plan No. MLS/AN.290/84 filed with the statement of claim in the main suit.

The learned trial judge, thereafter listened to addresses by learned counsel for the parties. Thereafter he delivered a considered ruling in which he rejected the application of the defendants that the suit be dismissed upon their plea of res judicata. The defendants being very dissatisfied with this ruling have appealed to this court. Pursuant thereto the defendants have appealed to this court upon seven grounds of appeal in their original notice of appeal. But with the leave of this court, the defendants, now appellants filed and served an amended notice of appeal and grounds of appeal dated 22nd August, 1994. Based upon this amended notice of appeal, the appellants filed their brief which they served on the plaintiffs, now respondents.

At the hearing before us, the learned counsel appearing for the parties adopted and placed reliance on their respective briefs of argument. They also addressed the court further on the arguments canvassed in their briefs.

Mr. Chike Ofofile learned Senior Advocate of Nigeria in the appellants’ brief identified two issues for the determination of the appeal. They read:-

(i) What is the legal effect of suit No. 0/73/57 Osili Nnacho & Ors. v. Onuora Mechie & Ors on Suit No. 66 of 1907 vis-a-vis the defendants/appellants plea of res judicata?

(ii) Whether on the totality of the materials placed before the court, the defendants/appellants made out a case of res judicata (arising from Suit No. 0/73/57 – Osili Nnacho & Ors. v. Onuora Mechie & Ors) over any part of the land in dispute in the instant suit.

From a perusal of these two issues, it seems clear that the case for the appellants is that their plea of res judicata was wrongly dismissed by the lower court. It is also contended for the appellants that the lower court having wrongly overruled this plea, their claim to the disputed land or part of same was wrongly refused. In support of this contention, it is submitted that the whole ambit. Scope and legal effect of suit No. 66 of 1907 has become issue estoppel as per the parties to the instant suit. It is therefore argued for the appellants that the respondents are for that reason precluded from raising in this proceedings the fact of the suit no. 66 of 1907 as a document likely to give them any right to the land in dispute vis-a -vis the appellants. For that submission, the following cases are cited – Toriola v. Williams (1982) 7 S.C. 27; Esi v. Chief Secretary (1973) 11 SC 189, Fadiora v. Gbadebo (1978) 3 S.C. 219.

It is also the submission of Chike Ofodile SAN that another effect of suit No. 0/73/57 on the 1907 suit is that suit No. 0/73/57 is last in time. For that reason, he contends that the law is that once there are two conflicting judgments of courts, the later in time operates as a bar and constitutes res judicata. Cites Makanjuola v. Khalil (1958) WRNLR 32, (1958) SCNLR 193; Seriki v. Solaru (1965) NMLR 1; Ikeakwu v. Nwamkpa (1967) NMLR 224.

It is, I think, convenient to also set down the arguments of the appellants in respect of issue 2. This is whether on the totality of the materials placed before the court, the appellants made out a case of res judicata arising from suit No 0/73/57 – Osili Nnacho & Ors. v. Onuora Mechie & Ors over any part of the land in the instant suit. It is therefore contended first, for the appellants that the land in dispute is the area of land verged orange in survey plan No..MG/AN.543/84 admitted as Exhibit in Suit No. 0/73/57. It is further contended for the appellants that in suit No 0/73/57; that plan Exhibit 6 was that which was identified and pronounced upon by H.U. Kaine J. in the course of his judgment in that suit.

This judgment, in suit No. 0/73/57 was therefore pleaded in the instant case in paragraphs 6,7 and 8 of their statement of defence. These paragraphs were repeated in paragraphs 4 & 5 of the affidavit in support of the motion to dismiss the suit. In suit 0/73/57 the reliefs are as follows –

(i) Declaration of title to Achutu land

(ii) ?400 damages for trespass and

(iii) Recovery of possession and injunction.

In order to justify their contention that they have established that they are entitled to have the action dismissed upon the doctrine of res judicata, they referred to the ingredients of res judicata. These are as follows – (i) The parties are the same; (ii) the subject matter is the same and (iii) the same issue or cause of action is being litigated. In support, reference was made to (i) Peter Olahiyi & Anor v. Sule Abiona (1955-56) WRNRL. 126; (ii) Iyaji v. Eyigebe (1987) 3 NWLR (Pt. 61) 523 – 525; On the first ingredient, namely, whether the parties are the same, their learned counsel Chike Ofodile SAN contends in their brief, that they are the same. He submits that the plaintiffs respondents in suit No. 0/73/57 sued on behalf of the people of Offianta Nsugbe and sued the defendants/appellants where they were described as the people of Akwuete Quarter of Nneyi Umuleri town. In the instant suit OT/25/89 also the appellants contend that the parties are as specified in the earlier suit No. 0/73/57. The fact that the parties in the two suits namely 0/73/57 and OT/25/89 are the same was according to the appellants accepted by the lower court at page 59 lines 14-16 of the Records. On whether the subject matter in the two actions are the same, reliance is placed on the survey plan Exhibit 6, tendered by their surveyor, Chief Odumodu in the course of the trial in the lower court. They also contended that the evidence was neither challenged nor contradicted by the respondents.

Moreover as the respondents did not deem it fit to call their surveyor at the trial it was wholly wrong of the learned trial Judge to refuse the plea of res judicata on the ground that he would want them to call their surveyor as a witness. It is further submitted that where as in the instant case, the evidence of a witness remained unchallenged and uncontradicted, the duty of the court is to accept such evidence. For this submission reference was made to Siesmograph Ltd. v. Ogbeni (1976) 4 SC 85 at 5.

The appellants also draw support from the judgment of Kaine J in suit No. 0/73/57 who it is claimed made the following findings –

(a) That suit No. 0/32/47 was between the same parties as the instant one. That suit went from the High Court to the West African Court of Appeal from where it was sent for retrial. Hurley J., retried the suit, but on further appeal to the Supreme Court a non-suit was ordered. The lands involved were Achutu and Otuonya.

(b) That the learned Judge refused as untenable the conflicting plans tendered before him concerning the boundaries of Achutu and Otuonya lands.

(c) That the appellants made a grant of a portion of the land to the Royal Niger Company. It is also claimed that the learned judge held that the appellants were found by the Royal Niger Company to have been on the land since 1898.

(d) That the plaintiffs/respondents despite three opportunities have failed to prove their case in order to give effect to Exhibit ‘C’ (i.e case No. 66 of 1907) hence their claim in suit No. 0/73/57 was dismissed.

In conclusion it is submitted that with the issues in this appeal and suit No. 0/73/57 being the same, the appellants are entitled to the order of res judicata. It is also their submission that title to the disputed land is also in issue. That being the consequence of a claim for trespass coupled with injunction. In support, the following cases are cited, Okorie v. Udom (1960) 5 FSC 162, 1960 SCNLR 326; Obijuru v. Ozims (1985) 2 NWLR (Pt. 167).

For the respondents their learned counsel G.N.A. Okafor recognising that the issue in the appeal rests upon the doctrine of res judicata invited attention to the following cases Basil v. Hanger, 14 WACA 569 at 572; Ezenwa v. Kazeem (1990) 3 NWLR (Pt. 138) 258 at page 266; Coker v. Sanyaolu (1976) 9 & 10 SC 203 at 220.

Bearing in mind the ingredients for the plea of res judicata to succeed as per the above cases, learned counsel for the respondents conceded that the parties in suit No. 0/73/57 and the parties in the instant appeal are the same. He also concedes it that the adjudication in the previous cases was by a court of competent jurisdiction. That in the view of learned counsel for the respondents ends the similarities between the two suits. It is his submission that the issues and subject matter in the two suits are not the same. It is his argument that while in the previous suit the claims were for a declaration of title, trespass, mesne profits, recovery of possession and injunction, the claims in the present suit are for trespass and injunction. He therefore contends against the argument of the appellants that having joined a claim for trespass and injunction, the claimant had put title in issue. Though he concedes it, he however, submits that in the instant appeal title is merely incidental, and not directly in issue. With regard to the subject matter, it is the contention of the respondents that the land in dispute is not also the same in the two suits. It is argued that the evidence of the appellants’ surveyor, Mr. G.C. Odumodu and the plan Exhibit 6 which he tendered in support of this view. It is claimed that the survey plan, though superimposed upon another plan did not coincide with regard to the submission boundaries of the land. Also a piece of land, which is now in dispute, which was never in dispute above. The surveyor it is argued could not estimate the size of that piece of land. The learned counsel for the respondents has therefore submitted that the plea of res judicata was rightly rejected by the lower court. He submits on the principle stated in Aro v. Fobolude (1983) 1 SCNLR 58 (1983) 2 SC 75 at 84-88 that where any of three matters is missing in the new case a plea of res judicata will ordinarily fail. And as the judgment of 1967 in (the 1957 case) does not satisfy conditions laid down by the Supreme Court in Ezenwa v. Kazeem case (supra) the appeal must fail.

From the argument of counsel reviewed above it is manifest that the central issue for determination is whether the plea of res judicata raised before the lower court should have been upheld. For the appellants their plea rests upon the judgment in suit No. 0/73/57. See paragraphs 6, 7 & 8 of the appellant’s statement of claim, and which have been reproduced above.

It is I think desirable that the principles that ought to govern the court in determining whether a plea of res judicata was established or not are not obscure as this Court and the Supreme Court have in various cases made pronouncement on them. The Supreme Court in the lead judgment of Ogundare in the case of Ogbogu v. Ndiribe (1992) 6 NWLR (Pt. 245) 40 referred to and quoted with approval in the case of Alade Fadiora v. Gbadebo & Anor. (1978) 3 SC 219 where at pages 228 – 230- Idigbe JSC, formulated the applicable principles thus:-

“Now, there are two kinds of estoppel by record, inter partes or per rem judicatam, as it is generally known. The first is usually referred to as “cause of action is merged in the judgment, that is, Transit in rem judicatam (see King v. Hoare (1844) 13 M&W 495 at 504). Therefore, on this principle of law (or rule of evidence) once it appears that the same cause of action was held to lie (or not to lie) in a final judgment between the same parties, or their privies, who are litigating in the same capacity (and on the same subject matter) there is an end of the matter. They are precluded from re-litigating the same cause of action. There is, however. a second kind of estoppel inter partes and this usually occurs where an issue has earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in these circumstances, “issue estoppel” arises. This is based on the principle of law that a party is not allowed to (i.e he is precluded from) contending the contrary or opposite of any specific point which having been once distinctly put in issue, has with certainty and solemnity been determined against him. (See Cutram v. Morewood (1803) 3 East 346). Issue estoppel applies whether the point involved in the earlier decision is one of fact or law or one of mixed fact and law.

However, for the principle to apply, in any given proceedings, all the pre-conditions to a valid plea of estoppel inter parties or per rem judicatam must apply, that. (1) the same question must be for decision in both proceedings (which means that the question for decision in the current suit must have been decided in the earlier proceeding), (2) the decision relied upon in support of the plea of issue estoppel must be final (3) the parties must be the same(which means that parties involved in both proceedings must be the same) (per se or by their privies). Dealing with the issue of “Finality” of judgment for the purpose of establishing successfully a plea of res judicata, the learned authors of Spencer Bower & Turner on the Doctrine of Res Judicata (1969) Ed) in Art. 164 p. 134 states as follows: “A judicial decision is deemed to be final, when it leaves nothing to be judicially determined or ascertained thereafter in order to render it effective and capable of execution, and is absolute, complete and certain, and when it is not lawfully subject to subsequent decision review or modification by the tribunal which pronounced it… ..” Again, in Article 168 at p. 135 the same learned authors in the same book observe:

“No finding of the court or of a jury of a trial which has proved abortive, a new trial having directed, will give rise to a valid plea of estoppel. And a decision of the court setting aside the verdict of a jury or setting aside a judgment entered pursuant thereto, and directing a new trial, will not result in either party being estopped per rem judicatam by anything held on the facts in the judgment in which the new trial is ordered, for the judgment must be read as deciding no more than, that the first trial being unsatisfactory, the issues tried therein should be resubmitted to the court for fresh consideration.” (Italics by the Court)

It is therefore settled that where a court of competent jurisdiction has settled, by a final decision the matters in dispute between the parties neither party or his privy may relitigate that issue again by bringing a fresh action. The situation thus reached between the parties is referred to as res judicata. It is also evident that there are two kinds of estoppel. They are classified as cause of action estoppel and the other is known as issue estoppel.

On the 1st issue, the appellants want to know the legal effect of suit No. 0/73/57- Osili Nnacho & Ors v. Onuora Mechie in suit No. 66 of 1907 vis-a-vis the defendants/appellants” plea of res judicata. For the appellants it is submitted first that the whole ambit, scope and legal effect of suit No. 66 of 1907 has become issue estoppel as per the parties to the instant suit. The plaintiffs are as such precluded from raising this issue proceeding the fact of suit No. 66 of 1907 as a document likely to give them any right to the land in dispute vis-a-vis the defendants. In support of that submission, the following cases are cited. Toriola v. Williams (1982) 7 SC.27, Esi v. Chief Seeretary 1973 11 S.C. 189, Fadiora v. Gbadebo (1978) 3 SC 219.

It is also submitted for the appellants that another effect of suit No. 0/73/57 on the 1907 suit is that suit No 0/73/57 is last in time. That in the view of the law that once there are two conflicting judgments of courts, the later in time operates as a bar and constitutes res judicata. See Makanjuola v. Khalil (1958) WRNLR. 82 (1958) SCNLR 193: Seriki v. Solam (1965) NMLR. 1, Ikeokwu v. Nwamkpa (1967) NMLR 224. I must add here that in making this second submission the appellants did not concede it that the two judgments they have raised the question in this issue are conflicting. If that is their view then there is no reason why this submission should receive further consideration. A court is not to decide issues upon hypothesis. If that question needs to be considered by the court then counsel ought to address (he question and assist the court with reasoned arguments. I will therefore not consider this aspect of issue 1.

With regard to their submission for the appellants on whether issue estoppel was established in respect of suit No. 66 of 1907 and suit No. 0/73/57, copious references were made to the judgment of Kaine J in that case. Also brought to our attention are cases relevant to the consideration of whether or when issue estoppel could be said to have been established between parties in respect of two parties. But I must with due respect say that my search in the brief in support of the submission that issue estoppel was established between the parties was in vain. The respondents for their part do not subscribe to the proposition that issue estoppel was created between the two parties as a result of the two suits.

Though I have referred to the principles governing the creation of issue estoppel, I would for ease of reference refer to them again. Issue estoppel occurs where an issue has earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties or their privies. This is based on the principle of law that a party is not allowed to (i.e precluded from) contending the contrary or opposite of any specific point which having been once distinctly put in issue has been certainly and solemnly been determined against him.

It is common ground between the parties that the two parties in the suit No. 66 of 1907 and 0/73/57 are the same. In the first case one Chukwura for the respondents sued Ifugha for the appellants claiming recovery of possession of (a) Achutu land (b) Otuonya land. In that case the defendant who was from the defendants’91 family said that Achutu land belonged to the plaintiffs and Otuonya land to the defendants. There was no description of the boundary of Achutu land and Otuonya land in that case. The court in its judgments simply said ’97 Recovery of land for the plaintiff. In the 1957 case the plaintiffs claimed for (a) declaration of title to the piece and parcel of land called Achutu. (b) ?400 damages for trespass (c) ?300 mesne profits (d) recovery of possession (e) injunction. This was the case that came before Kanie J who upon a review of earlier cases before the parties dismissed the claim of the plaintiff by saying that “in a nutshell that I am not satisfied that the boundary shown on the plan Exhibit ’91A’91 was the boundary of Achutu land and Otuonya land if the two parcels of land had any boundary”.

The respondents in their brief have however argued that the learned trial judge in the 1957 case could not have reviewed the judgment in the 1907 case. They contend that all, that happened was that the judgment in the 1907 case with its plan to illustrate the correctness or otherwise of the plan filed by the plaintiff/respondent in this appeal. In any event it is submitted for (he respondents that the judgment in suit No. 66 of 1907 is still subsisting. Cites Ogiamen v. Ogiamen (1967) 1 NMLR 245 at 249.

They further contend that as far as that judgment goes the respondents have been adjudged the owners of Achutu land. That the judgment in which their claim was dismissed in suit No.0/73/1957 was not decided on its merit. The appellants have also argued that the judgment of the court in suit No. 66/1907 was a judgment in personam whilst the judgment in suit No. 0/73/1957 was a judgment in rem. Be that as it may it is clear from the records that the lower court in this appeal only decided that the judgment in suit No. 66 of 1907 was not appeal before the court in suit No. 0/73/1957. It is also the view of that court and 1 agree with that submission that the judgment in suit No. 66 of 1907 is still subsisting.

However what is clear in this appeal is that the appellants rested their prayer for res judicata on the suit still pending in the lower court suit No. OT/25/89 and Suit No. 0/73/1957. It was upon that prayer that the court came to its conclusion.

I have before now referred to the pleadings. In the application made by the appellants that led to the ruling of the lower court, the prayer of the appellants was simply for an order that the whole suit be dismissed on grounds of (1) res judicata and (2) abuse of process of the court. Upon the basis of this application the learned Judge refused to accede to this prayer. The reason given by the learned Judge of the lower court reads –

“It is common ground in the present application that the parties in Exhibits 5 and 5(i) are the same as parties in the present suit. G.C. Odumodu, the surveyor called by the applicants testified to the effect that, the land in the present suit claimed by the plaintiffs is less in depth than the land described in suit 0/73/57. He went further to say that a little part of the land now claimed by the plaintiffs is outside the land claimed by them in 1975. It is trite in my view, that in terms of interpreting a survey plan only a qualified surveyor, as an expert, can accurately superimpose one plan on another Ouwujuba v. Obienu (1991) 4 NWLR (Pt. 183) 16.”

Following that finding the learned trial Judge after referring to paragraph 4 of the statement of claim wherein the respondents pleaded their survey plan No. NLS/AN/290/84 Exh. 8, observed that he considered it wise that the surveyor of the respondents be called to give evidence on the matter. The learned Judge thereafter dismissed the application. From the above finding, it would appear that the learned trial Judge felt that the area of the land which is in dispute between the parties was established to compel that court to make an order of res judicata in favour of the appellants.

In this regard it must be borne in mind that for an order of res judicata to be made, i.e. cause of action estoppel, it must be shown that the parties, the cause of action and the res (subject matter) are the same in the earlier as well as the later proceedings in which the plea is raised. See Ex Parte Chief Salami Adeshina (1996) 4 NWLR (Pt. 442) 254, (1996) 3 – 4 MAC 284 at 288; Nwaneri & Ors. v. Oriuwo & Ors. (1959) SCNLR 316, (1959) 4 FSC 132.

The learned Judge is in the circumstances following the classical principles enunciated in several of the authorities dealing with the doctrine of res judicata. The Supreme Court so held in Nwaneri v. Oriuwo (1959) SCNLR 316 and also recently in Olukoga v. Fatune (1996) 4 2 LRCN 1704. (1996) 7 NWLR (Pt. 462) 516.

The respondents in their argument do not and cannot challenge the decision on principle, but have argued that for the appellants to succeed they must establish that the area of land which is now being claimed is now the same as that in the previous suit between the parties. On this crucial issue it is not disputed that the area of land claimed in the instant action is less than that claimed in suit No. 0/73/57. Upon that premise it is argued for the appellants that they could be entitled to their respect of the lesser area. To sustain that argument attention was drawn to the case of Okonkwo v. Kpajie (1992) 2 NWLR (Pt. 226) 633 at 658.

In that case it was held that the judgment could be entered for a party for that part of this claim which was proved.

In the instant case, the evidence is manifest that the parties are the same. It is clear that both parties know the land in dispute. The only difference is the extent of the land in dispute. The appellants have clearly by their pleadings and the plan tendered established their claim for res judicata to the extent of the evidence before the court. It must be noted that the learned trial Judge also found as a fact that in this suit appellants’ claim is less in depth than the land described in suit 0/73/57. And there has been no appeal on either side against this finding. Upon those facts as found the lower court, it is urged, ought to have made an order to the extent of the area of land as established.

It is that order that the appellants are now seeking to be made in this appeal. I think that having regard to the authorities to which I have referred to above, there is no reason why an order of res judicata should not be made in respect of the area of land which is not in dispute between the parties. Particularly, where, here the parties are the same and the subject matter though less than that previously claimed by the parties is part of the land formerly in dispute between the parties. In the result, the order of res judicata is hereby made to the extent of the land claimed by the appellants. The dispute with regard to the remaining land in dispute between the parties is hereby remitted to the lower court for trial by another judge within jurisdiction.

The appeal having succeeded to that extent, the appellants are awarded costs in the sum of N2,000.00 only.

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Other Citations: (1997)LCN/0294(CA)