Osu Obla & Ors. V. Osanga Otagoyi & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

TSAMIYA, J.C.A.

By a writ of summons and statement of claim filed on 20th August, 1991, the appellants as plaintiffs commenced an action at the High Court of Justice Plateau State, sitting at Keffi Judicial Division, against the respondents as defendants, claiming against them the following:-

1. Declaration that the purported Keffi Local Government Certificate of Occupancy No. 119 as plot No. KLG/CH/221 issued by the 2nd and 3rd defendants over their farmland and properties to the 1st defendant is illegal, null and void and of no effect whatsoever;
2. An injunction restraining the 1st defendant from using the said Keffi Local Government Certificate No. 119 and as Plot No. KLG/CH/221 wrongfully and illegally issued by the 2nd and 3rd defendants over the plaintiffs’ traditional farmland and the plaintiffs are still the traditional and customary owners of their farmland at Rafin Gabas Iguro in Kokona District of Keffi Local Government Area.

In their reaction, the 2nd and 3rd respondents herein, as defendants filed a joint statement of defence dated 23rd of November, 1992, denying the claim and in paragraphs 7 and 10 of their joint statement of defence that the said Certificate of Occupancy was issued on 3/8/82 after proper satisfaction that all legal procedures were complied with before being issued to the 1st respondent. That the appellants are not entitled to any relief or declaration or injunction, and this Honourable Court, in the interest of justice should hold:

(a) that the said Certificate of Occupancy No. 119 issued by the 2nd and 3rd defendants to the 1st defendant was validly made and issued; and

(b) dismiss the plaintiffs’ action with substantial costs in favour of the 2nd and 3rd defendants.

Sequel to this, the 1st defendant/applicant filed a motion on notice dated 20th November, 1996, praying for the dismissal of the entire suit on the ground of res-judicata. The motion and affidavit in support and exhibits of the record.

In response to the above, the appellants filed a counter-affidavit of 12 paragraphs sworn to by the 1st appellant on behalf of the appellants. The counter-affidavit is at page 112.

The motion on notice was argued by the counsel to both parties and in a reserved ruling delivered on 25th October, 1996, the learned trial Judge Sankey, J. after a meticulous consideration of the statement of claim, the 1st defendant’s affidavit in support of the motion as well as plaintiffs’/counter-affidavit, up-held the plea of res-judicata and dismissed the plaintiffs’/appellants’ claim.

Dissatisfied by the ruling, the appellants have filed the instant appeal predicated on three grounds of appeal. The three grounds of appeal with their particulars read as follows:

Ground One

The learned trial court erred in law in dismissing the plaintiff’s (appellant’s) claims in suit No. PLD/28/91 as being barred on res judicata, and when it held: “that the land in dispute is the same as that in previous suits in particular those referred to in exhibits “A”, page 8, exhibit “B” page 1 and exhibit “E” page 29 which occasioned a miscarriage of justice.

Particulars of errors in law

(i) The legal issue(s) raised are not the same between the parties in suit No. PLD/K/28/91 and the previous proceedings exhibits in exhs. “A”, “B” and “E”.

(ii) The parties are not the same nor privies in suit No. PLD/K/28/91 in the annexures “A”, “B”, “E” and “F” cases annexed to the affidavit of the respondents/applicants.

(iii) No valid and or subsisting judgment in any previous proceedings on the issues of the legality or otherwise of Local Government Certificate of Occupancy No. 119, and the order of declaration and injunctions raised as issues for trial by the appellants before the High Court in suit No. PLD/K/28/91.

Ground Two

The learned trial Judge erred in law in dismissing the appellants’ (plaintiffs) claim on allegations of res judicata when on the affidavit(s) and counter-affidavit evidence and annexures thereon there was no proof of res judicata to bar the appellants claims and reliefs which occasioned a miscarriage of justice.

Particulars of errors in law

(i) The affidavit and counter-affidavits deposed to conflicting facts and materials to call for oral evidence as required in law, as to the parties, and the res in the previous alleged suits and suit No. PLD/K/28/91.

(ii) The plaintiff and the defendants had not joined issues on their statement of claim on paragraphs (4) and (11) with the 1st defendant as being one and the same land the subject matter as erroneously held by the lower court.

Ground Three

The learned trial Judge erred in law, when it failed to dismiss the preliminary objection (of the 1st respondent) based on res-judicata when it held inter alia:

“The 1st – 3rd plaintiffs/respondents are indeed caught by the doctrine of res judicata while the 4th – 11th plaintiffs/respondents are caught by the doctrine of estoppel by standing by” and “that the plaintiffs/respondents were indeed parties and privies to the 4th previous suit as exhibited in exhibits A, B, C and E on the same subject matter concerning the same issue” which occasioned a miscarriage of justice.

Particulars of errors in law

(i) The legal elements of res judicata were not proved as deposed to in the affidavit in support of motion and the facts deposed to counter-affidavit of the appellants.

(ii) The issue of the legality, issuance, and propriety of the issuance of the Certificate of Occupancy No. KLG/CH/221 under the Land Use Act, 1978 and other enabling laws was never an issue before any court.

(iii) The parties are different and not privies in all other previous suits and or proceedings in exhibits A, B, C, D, and E to the suit No. PLD/K/28/91.

With the leave of this court, the appellants’ brief of argument was deemed filed and served on 11th February, 2002, while the respondents’ brief was deemed filed and served on 6th November, 2002.

In the appellants’ brief of argument filed by the learned counsel on their behalf, only one issue was raised for determination of the appeal and it reads thus: –

1. Whether the trial court was right or wrong in dismissing the plaintiffs/appellants’ case against the defendants/respondents as having been barred by the doctrine of res-judicata in the circumstances of this case.

For the 1st respondent, only one issue was formulated in his brief for determination. The issue is thus:-

1. Whether the principle of res-judicata was established before the trial court to warrant the dismissal of the plaintiffs/appellants suit against the defendants/respondents.

The 2nd and 3rd respondents filed no brief. On 1st March, 2006 when this appeal came before us for hearing, learned counsel for the appellants urged this court to grant their oral application for the appeal to be heard on appellants’ and 1st respondent’s briefs in default of the 2nd and 3rd respondents filing their own brief, whereupon he adopted the appellants’ brief and urged the court to allow the appeal, set aside the ruling of the trial court and remit it for re-trial by another Judge. The 1st respondent on the other hand adopted the 1st respondent brief and urged this court to dismiss the appeal and affirm the ruling of the trial court with heavy costs.

In relation to the lone issue submitted for determination, learned counsel for the appellants dealt with the conditions for a successful plea of res-judicata. The most substantial line of attack against the ruling of the trial court was in the upholding of the plea of res-judicata, and dismissing the appellants’ action against the respondents on the ground that the action had previously been adjudicated upon.

The learned counsel for the appellants submitted that for the doctrine of res-judicata to succeed, it must be shown that

(a) the parties,

(b) the issues, and

(c) the subject matter,

in the previous action must be the same as those in the action in which the plea is raised. That once these ingredients of res-judicata are established, the previous judgment estopped the plaintiff from making any claim contrary to the decision in the previous case. The learned counsel relied upon a number of legal authorities, including;

Ezeanya v. Okeke (1995) 4 NWLR (Pt. 388) 142

Dokubo v. Omoni (1999) 8 NWLR (Pt. 616) 647

to buttress his submission. The learned counsel further submitted that from the reliefs set out in the statement of claim, the issues, parties and the subject matter are not the same. That the true conditional issue before the trial court in the present suit, the subject matter of this appeal as set out above are the legality or otherwise of granting and issuance of the Certificate of Occupancy (C of O) No. 119 at plot No. KLG/CH/221. That the land in dispute in both the present suit and the previous suits have not been proved to be the same. That the plaintiffs/appellants various claim centered on separate and distinct farm lands in the area located and situate at the area known and called Rafin Gabas Igwo in Kokona District of Keffi Local Government Area. That the learned trial Judge’s reference to exhibit ‘A’ page 8, exhibit ‘B’ page 1 and exhibit ‘E’ page 29, are all misconceived, because they were not the issues for trial before the trial court, on the writ of summons and the statement of claim adumbrated above for its adjudication. The trial court erroneously assumed that all these farm lands in dispute distinct and separate were covered by the adjudications contained in the judgments annexed to the supporting affidavit did not decide the issue of legality or otherwise of the C of O itself.

On the issue of sameness of parties, it was argued that it was improper in law and too pre-mature in the course of this matter for the learned trial Judge to have held that the parties are the same. That the principles of law in the cases of Kpansanagi v. Shobako, Cain Cross v. Lorimar (1860) 3 L.T. 130, Akanni v. Makanju (1978) 11-12 S.C. 13 per Obaseki, JSC (as he then was), Udeze v. Chidube (1990) 1 SCNJ 104 at 193;(1990) 1 NWLR (Pt.125) 141 were right principles of law but the learned trial Judge mis-applied the principles to the facts and circumstances of this case. That there was no evidence to show that 4th – 11th appellants were privies. That there was no evidence to show that 4th – 11th appellants authorized or permitted or mandated 1st – 3rd appellants to sue the 1st respondent for or on their behalf. That for the doctrine of standing by to apply, the interest must be the same, so also the subject matter. He cited and relied on Adenle v. Oyegbade (1962) Vol. 3 NSCC 17. That the 2nd and 3rd respondents were not parties to any of the previous suits. That since no issues were joined between the 1st respondent and the appellants at the trial court, the plea of res-judicata could not be properly raised. He relied on Chief – R. S. Bruce-Akumngio and 5 ors. v. Chief Law Romeo Harry (2001) 11 NWLR (Pt. 723) 88 at 96 paras. D – F. Also that the parties in the present action are not the same as the parties in the previous decision, so also they are not privies, and urged this court to hold so.

On the issue of valid subsisting judgments, it was argued that:

(A) Exhibits ‘A’, ‘B’ and ‘E’ are not valid and subsisting judgments that can constitute a bar to the present action before the trial court.

(B)(a) That the judgment in exhibit ‘A’ was not based on the legality or illegality of the said C of O.

(b) Exhibit ‘B’ the action bordered on the C of O. but was struck out, so it cannot be a final valid judgment to constitute a bar to the present action.

(c) On exhibit ‘C’ the action was sent back for re-trial by the Customary Court of Appeal, so the decision in it cannot be a final valid judgment to bar the appellants’ present action.

(d) Exhibit ‘E’ the parties were 1st – 3rd appellants and the claim was in respect of title to their own pieces of land. They appealed to the Customary Court of Appeal, Jos from the decision of the Upper Area Court and the Appeal Court decision is exhibit ‘F’ on the claim. So it cannot be a bar to the present action.

(e) Exhibits G. & H. relating to suit No. PLD/J238/89 is on the validity or otherwise of the C of O and was struck out for want of pleadings.

(f) Exhibit ‘F’ is the outcome of the appeal to the Customary Court of Appeal, Jos which relates to the claim of title and interest to the 1st – 3rd appellants and no decision on the legality or otherwise of C of O. No. 119 or on the procedure followed before its issuance to the respondent.

The learned counsel for the appellants urged this court to allow the appeal and hold that the plea of res judicata was not established.

In reply to the arguments above, learned counsel for the 1st respondent submitted, on issue of sameness of parties or their privies, that, in suit No. CV/F1/365/82 – exhibit ‘A’ the parties are Joshua Ogbari v. Osanga Tagoyi, while in the present case Joshua Ogbari is the 2nd plaintiff/appellant against Osanga Tagoyi (the respondent) in CV/F1/102/83 – exhibit ‘B’ – it is Omale Ogu v. the 1st respondent. That Omale Ogu is, the father of Joshua Ogbari. In UAC/CV/328/-86 – exhibit ‘E’ it is Osu Obla, Danladi – Obere and Joshua Ogbari v. Osanga Tagoyi. That Osu Obla, Daladi Obere and Joshua are also 1st, 2nd and 3rd plaintiffs/appellants respectively in the present case. That these people were also the same plaintiffs/appellants in suit No. UAC/CV/328/86 – exhibit ‘F’.

It was further submitted that the testimonies of Danladi Obere, as PW3, Joshua Ogbari as PW4 and that of Omale Adegbo, as PW5, clearly show that the plaintiff in the four afore-stated cases contained in exhibits ‘A’, ‘B’, ‘E’ and ‘F’ are either the same parties or their privies as the parties in the present action No. PLD/K/28/91. That the appellants’ statement in the present case under paragraph 3 contained in the record of proceedings of this case stated:

“The plaintiffs individually and severally own and inherited these traditional farm lands from their great grandparents in various ways right from their great grandparents Inalogwo Oganba up till date.”

That it is clear from this that the appellants in this present appeal (i.e. 1st – 11th appellants) are claiming the land in dispute through inheritance from a common great grand father called Inalogwo Oganba”. The learned counsel further urged this Court to hold that as long as the present suit No. PLD/K/28/91 was not brought in a representative capacity, and considering the evidence of PW5 in exhibit ‘E’ (at page 66 – 68 of the record of this appeal) the 4th – 11th appellants had no business being in court in that suit. Also the statement of claim in the present case has not shown any particular interest of the 4th – 11th appellants if their interests are not the same as that of the 1st – 3rd appellants since there is only one land in dispute. That if the 4th – 11th appellants are not related by blood to the 1st – 3rd appellants, they could be regarded as privies to the said first three appellants and therefore cannot be heard to complain again on the same issue they allowed the first three appellants to contest. He cited and relied on Nwobodo Ezeudu & 2 Ors. v. Isaac Obiagwu (1986) 2 NWLR (Pt. 21) 208 ratio 10.

The learned counsel for the respondent further argued that, Joshua Ogbari – 3rd appellant – at 611, 3-6 & 23-25 of the record, stated the relationship existing and tying the appellants together. That Omale Osu (otherwise known as Omale Adegbo (see p. 61, 1. 15-16 of the record) has been alleged to be the common grantor. He also testified as PW5 in exhibit ‘E’, (see P. 68, 1. 6, and 1. 19-21 of the record) and showed clearly that the plaintiffs in all the previous cases are either the same parties or privies to the parties in the present case No. PLD/K/28/91. That the testimony of PW4 (at p. 721. 16-19 of the record), Danladi Obere (the 3rd appellant in this case), equally proved the relationship of all the plaintiffs in exhibit ‘E’ (see p. 59 of the record).

Further more, it was argued that the mere fact that the 2nd and 3rd respondents in the present case were not made parties in the previous cases relied upon to ground the plea of res-judicata, nevertheless, as at 22/12/82 when the first case (exhibit A) was filed, the 2nd and 3rd respondents were known to the plaintiffs – (see 1.6 from the heading ‘statement of claim’ at p. 27; 1. 19-23 at p. 29; 1. 28-31 at p. 35, and 1. 12-14 at p. 44 of the record). Yet the 2nd and 3rd respondents were not joined. (see paras. 5 and 8 and 10 of the 1st appellant’s counter-affidavit at p. 113, and paras. 7, 11, 12, 13, and 15 of the appellants statement of claim at pp. 4-6 of the record. It is the law that parties include privies or all those who ought to have been made parties in a suit. Issue includes any question, which should have been raised in a previous proceeding but was not raised. That, failure to join the 2nd and 3rd respondents as parties in the previous cases, whether by mistake, negligence or inadvertently, operates as estoppel against the appellants. That a party is not permitted in law to break his case into pieces and prosecute same piece meal. The learned counsel for the respondent, to buttress his arguments on this, relied on a number cases supplied in his brief such as Raphael Udeze & 2 Ors. v. Paul Chidebe and 4 Ors. – (1990) 1 SCNJ 104; (1990) 1 NWLR (Pt. 125) 141 and Oloriegbe v. Omotesho (1993) 1 SCNJ 30 at 1 ratio 2; (1993) 1 NWLR (Pt. 270) 386. Finally on this point, it was submitted that the parties and their privies in the previous suits are the same as the parties and or their privies in the present case; because they have the same interests. The learned counsel relied upon the case of Nwobodo Ezeudu and 2 Ors. v. Isaac Obiagwu (supra) ratio 10. Consequently, the trial court, argued the learned counsel, was right and justified in its finding that the parties and or their privies in the previous case – exhibits ‘A’ ‘B’ ‘E’ and ‘F’ and the parties and or their privies in the present case are same; and are caught by the estoppel. He relied on Mrs. G. A. Sosan and 2 Ors. v. Dr. M. B. Ademuyiwa (1986) 3 NWLR (Pt. 27) 241 at 249.

On the issue of sameness of subject matter, it was argued that they are the same since the subject matter is the declaration of title to land and invalidating the C. of O. covering the said land located at Fafin Gabas Igwo. That both the identity and boundary of the land in dispute were not in dispute and the C. of O. was made an issue in all the previous cases and the present case.

On the last ingredient, which is the validity and subsisting judgment, the learned counsel for the 1st respondent argued the judgments in exhibits ‘A’, ‘B’, ‘E’ and ‘F’ are valid and subsisting judgments because they were given by courts of competent jurisdiction and were not set aside by the appeal coul1. On this point the case of Ibuluya v. Dikibo (1957 – 1984) (1976) 6 S.C. 97 and Cardoso v. Daniel (1986) 2 NWLR (Pt. 20) p. 1.The learned counsel for the 1st respondent urged this court to uphold the decision of the trial court on ground of res judicata and dismiss the appeal.

A plea of res-judicata arises where an issue had earlier been adjudicated upon by a court of competent jurisdiction and the same issues come up again in any subsequent proceeding between the same parties or their privies. This issue applies whether the point, involved in the earlier decision is one of the fact or law or of mixed fact and law. A successful plea of res-judicata ousts the jurisdiction of the court before which it is raised. Generally, the plea is a shield rather than a sword. See Yoye v. Lawani Olubode & 2 Ors. (1974) 10 S.C. 209.

It has been laid down in a long line of cases that to sustain a plea of res-judicata, three conditions must be satisfied: –

(a) The parties must be the same per-se or by their privies.

(b) The same question must be for decision in both proceedings.

(c) The decision relied upon to support the plea must be a final one by a court of competent jurisdiction.

See: Fadiora & Anor v. Gbadebo & Anor: (1978) 3 S.C. 219; Nkanu v. Onun (1977) 5 S.C. 13; Bamishebi v. Faleye (1987) 2 NWLR (Pt. 54) 51; Oke v. Atoloye (1986) 1 NWLR (Pt. 15) 241 at 260, Richard Ezeanya & Ors. v. Gabriel Okeke & Ors. (1995) 4 NWLR (Pt. 388) 142 at 161.

Discussing the conditions for a successful plea of res-judicata in the case of Aro v. Fabolude (1983) 2 S.C. 75; (1983) 1 SCNLR 58, Aniagolu, J.S.C. (as he then was) had this to say.-

“In civil case, before this principle is applied, the res (the subject matter) in contention must be the same, the issues and parties the same in the new case as in the earlier proceedings. Where any of the three matters is missing in the new case a plea of res-judicata will ordinarily fail- See: Odua v. Niranza (1934) 2 W.A.C.A. 98 at 100 – 102.”

The burden is on the party who sets out the defence of res judicata to establish the three conditions for the plea as discussed above.

Having the law, I will now examine the facts and the materials before the trial court to see how it arrives its decision.

In the instant case, the appellants filed an action against the respondents claiming the reliefs sought in their statement of claim already stated in this judgment. But the 1st respondent before his statement of defence, immediately filed a motion on notice, accompanied by an affidavit in support of it – urging the trial court to dismiss the suit on the basis of res-judicata. The appellants were duly served with the 1st respondent’s motion on notice, and affidavit in support. In response, the appellants filed a counter-affidavit opposing the motion on notice.

The 1st respondent’s affidavit is at pages 23-26 of the printed record of proceedings (herein referred as the record). The most relevant paragraphs of the affidavit are paras. 1-5, 21-22, 24-25, and they read as follows:-

1. That I am the first defendant/applicant (hereinafter called the applicant”) in suit No. PLD/K/28/91 now pending before this Honourable High Court.
2. That I am familiar with the facts of this suit and in a position therefore to depose to this affidavit.
3. That the plaintiffs/respondents in this suit are either brothers, cousins and or relations to each other.
4. That the identity of the land in controversy in this suit (hereinafter called “the disputed land”) is not in dispute.
5. That apart from the instant suit there have been five other cases over the disputed land between the same parties hereto or their privies or which ought to have been between the same parties hereto or their privies.
6. That the issues raised and determined in all the aforestated cases and the parties are the same or ought to have been the same with the issues and parties now before this Hon. Court for determination.
7. That the judgments contained in exhibits A, B, C, E, F and H hereto are still valid and subsisting.
8. That all the plaintiffs/respondents hereto are from the same family and have blood relationship with each other.
9. That both the aforementioned previous cases and the instant case are all in respect of the same piece of land i.e. plot KLG/CH/221 at Rafin Gabas, Igwo, over which the applicant has Keffi Local Government Certificate of Occupancy No. 119 dated 26th May, 1982. A Photostat copy of the said Certificate of Occupancy is hereby annexed as “exhibit 1.

The appellants’ counter-affidavit is at pages 112-114 of the record. The relevant paragraphs of the appellant’s counter-affidavit are paras. 2, 3, 4, 6, 9 and 11, and they are as follows:

2. I know that the plaintiffs are not brothers, cousins or relations to each other as alleged under paragraph (3) of the 1st defendant’s/applicant’s affidavit.
3. I know that the plaintiffs each has his family distinct in the areas in dispute covered by the 1st defendant purported Certificate of Occupancy.
4. I know that the identity of the lands are in dispute and paragraph. (4) of the affidavit is not correct.
5. I know that the parties have never been the same in any of the alleged suits or are privies as alleged under paragraph (5) of the 1st defendant’s/applicant’s affidavit.
6. I know that the issue before the court is on the legality or illegality of issuance of the Certificate of Occupancy No. 119 dated 26th May, 1982 between the plaintiffs and the three defendants under the Land Use Act, 1978.
7. I know that the present suit is for a declaration and nullification of the Certificate of Occupancy No. 119 wrongfully issued by the 2nd, 3rd defendants without more under the Land Use Act 1978.
8. I see the exhibits annexed to the affidavit of the applicants and are not relevant nor any bearing on res-judicata on the legality or illegality of Certificate of Occupancy No. 119.
9. I see the exhibits annexed to the applicants affidavit, the parties are different, the issues different and no proceedings and judgment or declaration has ever been made on the issuance and legality of the Local Government of Occupancy No. 119.

In almost all the averments, the 1st respondent’s paragraphs above have been countered in my view. For instance, on the identity of the res (the subject matter in dispute), it would be difficult for the learned trial Judge to know with certainty that the farms land situated at Rafin Gabas – Igwo covered by the said C. of O. No 119 was community land and was not shared among the numerous families of Agbanagba people who derived their title to the said ancestor, except by oral evidence. Since there is appellants’ counter-affidavit challenging paragraph 25 of the supporting affidavit. Secondly, there is dispute as to the sameness of the parties (or their privies). The appellants contested the issue that parties (or their privies) are not the same in the present and the 4 previous actions. In his submissions, the 1st respondent relied on the pieces of evidence of Omale Osu (Adegbo), contained at pages 66-68 of the record, the evidence of Danladi Obare (as PW III) at 58-59, that of Joshua Obare (as PW IV) at pages 60-62 established that the plaintiffs in the four previous cases contained in exhibits ‘A’, ‘B’, ‘E’ and ‘F’ are either the same parties or their privies as the parties in the present action. With due respect to the learned counsel, did not share that view. For Omale Osu (Adegbo) among other thing stated:-

“PW V – I know the plaintiffs (i.e. plaintiffs in exhibit ‘E’ namely, Osu Obula, Danladi Obere and Joshua Obari) they are my sons …. ”

Under cross-examination he answered:

” …. my grandfather farmed (the land in dispute), and left for my father who farmed and left it to me and I divide it for the plaintiffs (i.e. the 3 plaintiffs in exhibit ‘E’) …. I know the 1st plaintiff, Osu Obula, and the 3rd plaintiff Joshua. I did not share the land between the three plaintiffs but six of them.

Under re-examination, the same witness stated: The 3rd plaintiff (i.e. Joshua Obari) is the son to my senior brother, …. the same father and mother with me. The 1st plaintiff (i.e. Osu Obula) is the son of my senior brother. So from his evidence, nothing was said to link 4th – 11th appellants either in blood relation or in common interest on the land in dispute.

On the evidence of Danladi Obare, at pages 58-59 of the record, he said under cross-examination in exhibit ‘E. ” … We (i.e. the 3 plaintiffs in exhibit E) are the lineage of Agbanagba, the people are even ten ….. The 3rd plaintiff (Joshua Obari) and myself are from the same clan. The father of the plaintiff and myself are from the same clan … ” This piece of evidence also is as the piece of Omale Osu. Non of them linked 4th – 11th appellants with 1st – 3rd appellants either way. Then the piece of evidence of Joshua Obari at page 61 inter particulars, while answering under cross-examination says inter-alia:

“When the land was shared, Osu Obula, Danladi Oberi, Joshua Ogbari, Eshimutu Omale and other (whom he did not mention their names) got there, they are about six people, these people are not of the same parents, that they are members of our family and they are living.”

This piece of evidence did establish the relationship either in blood or interests between 1st – 3rd plaintiffs in the 4 previous cases and 4th – 11th appellants in the present action.

It was argued by the 1st respondent’s counsel that since parties include privies or all those who ought to have been joined as parties in a suit; and failure to join them for whatsoever reason, operates as estoppel against the plaintiffs/appellants. That a party is not permitted in law to break his case into pieces and prosecute same in piece meal. See:

Peter Par Dzungwe v. Oran Gbishe & 1 Or. (1985) 2 NWLR (Pt. 8) 528 and many other cases.

I agree with the learned counsel with respect to the position of the law cited that all those who ought to have been joined as parties in a suit but failed to be join in the case whether by mistake, negligence or inadvertently, failure operates as estoppel against the plaintiff. Also, a party is not permitted in law to break his case into pieces and prosecute same piece meal. With much respect, however, I disagree with the learned counsel that the 4th – 11th appellants are parties that ought to be joined in the previous actions but failed to be joined. From both the affidavit evidence and the exhibits attached to the motion on notice, there was no evidence to show that the 4th 11th appellants are related in blood or interest, or that the land in dispute was community land that was apportioned. The point of disagreement is with respect to the sameness of partes or their privies and subject matter in dispute. The 1st respondent maintained that they are same as shown by exhibits, but the appellants denied being their sameness. Specifically the appellants averred that the plaintiffs are not brothers, cousins or relations to each other as alleged under paragraph 3 of the 1st defendant’s/applicant’s (now appellants) affidavit; that each plaintiff has his family distinct in the area in dispute covered by the 1st defendant purported Certificate of Occupancy, that the identity of the lands are in dispute so paragraph 4 of the 1st respondent’s affidavit is not correct. This to my mind is the thrust of some of the appellants’ defence. There was therefore a dispute as to the sameness of parties or their privies, as well as sameness of the subject matter. If these appellants’ allegation are true, that would constitute a defence to the 1st respondent’s plea of res-judicata. The issues and the rest cannot be determined on the conflicting affidavit evidence of the parties, for it is a well established principle of law that when a court is faced with affidavits which are irreconcilably in conflict the court, in order to resolve such conflict properly, should first hear oral evidence from the deponents and their witnesses if any. See Joseph Falobi v. Elizabeth Falobi (1976) 9/10 S.C. 1; Akinsete v. Akindutire (1966) 1 All NLR 147, and Uku & Ors. v. Okumagba & Ors. (1974) 3 S.C. 35 at 56. Therefore, 4th – 11th appellants in the absence of evidence of blood relations, interest with 1st – 3rd appellants or that the land is the same, they cannot be adjudged to be the parties that ought to be joined but failed to be joined or privies to the parties in 4 previous actions. In my view, the above two issues could only be determined by oral evidence.

Thirdly, there is dispute as to whether a declaration was ever made on the legality on the issuance of the Local Government Certificate No. 119 on the land in dispute. This becomes the issue in all the previous and the present actions and the appellants contested that the issue has never been adjudicated upon before any court of law in the previous actions. There was no evidence to establish that this issue of legality or otherwise, of the C of O was adjudicated by the courts in the previous action.

On the whole, I do not agree with the learned trial Judge that the plea of res-judicata has been successfully established from the affidavit evidence and the exhibits A, B, C, E and F that it is the same parties, issues and subject matter are being re-litigated upon.

I am of the firm view that the appeal has merit and that it ought to be allowed.

In the result, I allow the appeal and set aside the judgment of the trial court. I order that this case be sent to the Nassarawa State Chief Judge to assign this case to a Judge in the State to re-hear the case de-novo. The appellants are entitled to costs, which I assess and fix at the sum of N10,000.00 against the 1st respondent.

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Other Citations: (2006)LCN/1990(CA)