Ocheni Achor V. Anene Adejoh & Anor (2009)

LawGlobal-Hub Lead Judgment Report

ABDU ABOKI, J.C.A.

This Appeal is against the Judgment of the High Court of Kogi State, Appellate Division, holden at Idah (Coram: Honourable Justices M,A. Medupin and S. S. Idajili) delivered on the 11th day of April, 2002.

The proceedings subject of the instant Appeal started at the Upper Area Court as case No. CV.59/98 on 3rd August, 1998,

The brief fact of the case is that the Appellant (who was the Plaintiff at the trial Court but represented in that Court by Egbunu Adejo who testified as PW5) claimed to be the eldest member of the 1st Respondent’s clan commenced the action claiming: “Declaration that the alienation of those parts of Otobo family land situate at Imere and Ibochi villages by the 1st Defendant/Respondent to the 2nd Defendant/Respondent is null, void and of no effect.”

The 1st Defendant/Respondent is the beaded Chief (Adokpulu Aganapoje) and the head of the Appellant’s family and in that capacity, the recognized head of the family as well as the custodian and controller of all lands belonging to the family.

The 2nd Defendant/Respondent is also a beaded Chief with the title of “Achadu Imere” and in that capacity, the head of Achadu Imere clan as well as custodian and controller of Imere land.

In 1986, a dispute over the ownership of Imere land ensued between the 1st and 2nd Defendants/Respondents as heads of their respective families. The dispute was resolved on 6th May, 1988 in favour of the 2nd Defendant/Respondent in a Customary arbitration before the Attah Igala as evidenced in Exhibit D1.

Thereafter, the 2nd Defendant/Respondent engaged in another round of dispute with Idakwo Ohioga and his group being tenants put on the said land by 1st Defendant/Respondent’s family. Exhibit D3 is the consolidated proceedings of the dispute between the 2nd Defendant/Respondent and the tenants at the Upper Area Court, Idah. The 2nd Defendant/Respondent won the case and Exhibit D4 is the judgment of the Kogi State High Court which slightly varied the Orders in Exhibit D3.

The 1st Defendant/Respondent participated in the proceedings in Exhibit D3 as a witness for the tenants but conceded in that proceedings the existence of Exhibit D1 and admitted that he had left the land for 2nd Defendant/Respondent in compliance with Exhibit D1.

“Exhibit D3 was decided on 7th May, 1991 while Exhibit 04 was decided on 20th March, 1992. The Plaintiff/Appellant commenced the instant case on the 17th February 1993 with a view to nullifying the effect of Exhibits D1, D3 and D4. The trial Court resolved the issues raised against the Plaintiff/Appellant. On Appeal to the High Court, the Court dismissed the Appellant’s Appeal as it saw no reason to disturb the judgment of the trial Court.

The Plaintiff/Appellant dissatisfied with the judgment has appealed to this Court.

Parties have exchanged their Briefs. The Appellant’s Brief of Argument was filed on 14th August 2006 while the Reply Brief was filed on 29th March, 2007. The 2nd Respondent’s Brief was filed on 5th March, 2007. The 1st Respondent was absent and unrepresented though duty served. From the eleven grounds of Appeal contained in the Notice of Appeal and one additional ground of Appeal, four issues are distilled on behalf of the Appellant for the determination of this Appeal and they read as follows:-

“1. Whether the Kogi State High Court was right to hold that the Plaintiff/Appellant has not identified or described Imere land and its boundaries to sufficiently enough entitle him to judgment and or that he merely described the boundary of general Adokpulu Aganapoje’s Otabo land such as entitled the 2nd Defendant/Respondent to judgment in his favour.

2. Whether Exhibits D1, D3 and D4 constituted res judicata or an estoppel by standing by.

Whether the lower Court properly evaluated the evidence and came to the right conclusion that the scales of justice weighed more or tilted in favour of 2nd Respondent.

3. Whether the Kogi State High court was right in not according the status of res judicata to the earlier Judgment or decision(s) on Imere land by the Attah of Igala’s “B” Court (with or without the originals of the record of proceedings of the said Court as well as the arbitration by the 8 Councillars of Igala Native Authority).”

On behalf of the 2nd Respondent, the following issues are raised for the determination of this Appeal:

“1. Whether the Appellant had proved the identity of the land claimed with reasonable certainty as required by law?

2. Whether Exhibits D1, D3 and D4 constitute estoppels per rem judicatam and/or estoppels by standing by against the Appellant?
3. Whether the Attah Igala “B” Court proceedings being an uncertified photocopy of a public document was admissible in law and assuming (without conceding) that it was admisible, whether it constitutes estoppel per rem judicatam against the 2nd Respondent?
4. Whether in view of all the circumstances of this case, the lower Court was right to have dismissed the Appellant’s Appeal?”

The issues formulated by both parties are similar. I shall adopt the issues as formulated by the Appellant for the determination of this Appeal.

Issue 1

“Whether the Appellant had proved the identity of the land claimed with reasonable certainty as required by law?”

Dr. S. E. Mosugu, Counsel for the Appellant submitted that the Appellant adequately described the disputed Imere land in the trial before the Area Court. He referred the Court to pages 11-12 and 17 of the Record.

Counsel maintained that the Appellant had, at the opening of his testimony which is at page 9 of the Record stated that Otobo land comprises “entire Gtoboland” or the “whole land” as well as “various portions” of that entire Otobo land including “Otobo”, “Imere” and ten other distinct portions.

He pointed out that the Appellant gave a full account of the 13 portions which make up entire or whole Otobo land as well as the Eastern, Western, Northern and Southern boundaries and their features. Counsel submitted that the learned Judges were wrong to conclude that the Appellant and his witnesses led copious evidence only as to the common boundary of Adokpulu Aganapoje land. He maintained that this wrong conclusion led the Kogi State High court to fall into the further error when it concluded that the Appellant did not lead sufficient evidence as to the exact boundaries of the said land at Imere or Ibochi.

Dr. S. E. Mosugu further submitted that the Appellant not only led sufficient evidence of the exact boundaries of Imere land which was being alienated but also led sufficient evidence as could nor would enable a Surveyor produce a Survey plan showing with accuracy the disputed land.

He pointed out that it is important to know that Appellant had said “Imere land which is the cause of the dispute now is in the heart of Adokpulu land” but did not say that the entire or the whole Otobo land of Adokpulu land was in dispute.

Counsel maintained that PW1 on his part said “I have heard of Imere. It is located in Otobo land”, whilst PW5 offered enough description beyond placing Imere at the “heart”.

Counsel for the Appellant argued that having stated that Imere land is at the heart of Adokpulu land, one should next add that the expression “heart of a thing” or “Heart of a matter” literally means the middle of a matter or thing.

He submitted that in getting a Surveyor to do a sketch of the disputed land, the starting point is to place Imere land in the middle of a “drawing board”. Counsel further submitted that when this is done, the accompanying picture or sketch at page 15 of the Record clearly appears from the narration or evidence of PW5.

Dr. S. E. Mosugu maintained that the Appellant also mentioned, in relation to Imere land, some 8 different portions of larger Otobo land and gave account of the “cases” or “disputes” between different tenants/caretakers of portions of larger Otobo land.

Counsel submitted that both parties are agreed about the Eastern boundary of the disputed land and that PW1 testified as the Eastern boundary man. He maintained that the testimony of PW1 concerning this Eastern boundary was corroborated by both parties during the visit to the locus in quo.

He argued that the only disagreement is as regards the Southern boundary of Imere land as the Appellant showed the Southern boundary to be marked by a “big cashew tree” while the 2nd Respondent said the Southern part of Imere land ‘starts from the stump of the Iroko tree South from the Cashew tree. Counsel maintained that the difference between the two different Southern boundary marks is 100 metres.

Dr. S. E. Mosugu submitted that this discrepancy is only one side of the compass description that led the lower Court to hold that the Appellant had not fully described the disputed land. He maintained that this finding was perverse especially having regards to the following additional facts.

Counsel submitted that the Appellant has satisfied the test of identification/description of a disputed land laid down in such cases as:

Odiche v. Chibogwu (1994)7-8 SCNJ 317 at 323;

Anakaa v. Chako (1997) 2 NWLR Pt. 488 Pg.488 at 500.

He maintained that the Appellant gave a clear description of Imere land in terms of its central location and boundaries in relation to the whole Otoboland; the names of his neighbours on all sides of the boundaries particularly on the Eastern side and that the Appellant pointed out other physical features on the land such as the earth shrine, the Ajaka-Ibochi Road making one of the boundaries and these were confirmed at the locus in quo.

Counsel submitted that the Appellant did not introduce any new thing at the locus so as to improve his case apart from demarcating ridges and a foot path leading to a farm from Otobo; rather it was the 2nd Respondent who attempted to improve on his defence by pointing to features such as Okoanepa Road which branches off Ajaka to Aya Road.

In his response, Counsel for the 2nd Respondent P. D. Abalaka submitted that it is trite law that the first and primary duty of a Plaintiff in a claim of title to land is to describe the land in dispute with reasonable degree of certainty and accuracy such that a Surveyor taking the record could produce a survey plan showing with accuracy the land in dispute and where a claimant fails in his duty his case must be dismissed. He referred the Court to the cases of:

Imah v. Okogbe (1993) 12 SCNJ 57 at 61;

Otika Odiche v. Oga Chibogwu (l994) 7-8 SCNJ Pt. 11 Page 317 at 323.

Counsel maintained that Appellant who testified as PW5 at the trial Court did not give ascertainable boundaries of Imere/Ibochi villages as required by law. He argued that the boundary descriptions given by PWS relate to the entire Oboto land and not Imere/Ibochi lands in dispute.

P. D. Abalaka submitted that PW5 gave intermittent pieces of evidence in an attempt to describe Imere land but the evidence is not coherent and does not amount to sufficient description of the Imere land in dispute.

He further submitted that the evidence of PW5 though relates to Imere land but falls short of the standard required by law as it fails to give the boundary mark between Otobo and Imere and also failed to show whether these boundaries are on the South, North, East or West.

Counsel for the 2nd Respondent maintained that Appellant’s evidence on the boundaries of Imere land falls short of the standard laid down in Otika Odiche v. Oga Chibogwu (supra) at page 323 by the Supreme Court.

P. D. Abalaka argued that apart from stating that Imere and Okpe are separated by Ajaka-Ibochi Road, there is no other boundary description of Imere land in PW5’s evidence. He maintained that no roads or trees marking boundaries of Imere land were mentioned in PW5’s evidence neither were any of the persons mentioned as being in occupation of the various parcels of land allegedly bordering Imere land called as witnesses. Counsel submitted that the Appellant through PWS turned round at the locus in quo to show roads, cashew trees, Udu trees, Otacho (Bamboo) trees which according to him marked the boundaries of Imereland even though he gave no evidences about these features in the Court.

He further submitted that the introduction of these various features by PW5 at the locus in quo amounts to an attempt to improve on his case. Counsel maintained that the Appellant cannot do these and referred the Court to the case of Otika Odiche v. Oga Chibogwu (supra).

Counsel argued that the description of Imere land given by the Appellant both in Court and at the locus in quo manifest a deliberate attempt to reduce the size and extent of Imere land. He maintained that the extent of Imere land as described by 2nd Respondent tallies with the extent of Imere land as shown in Exhibit D3 especially as it relates to the Southern and Eastern limits of the land.

P.D. Abalaka submitted that the submission by Appellant that the parties are agreed on the Eastern boundary of the land in dispute is misconceived as though the Appellant agreed that Okochogbe land of PW1 was his boundary neighbour on the East, he denied that Imere land extend to the boundary with Okochogbe; whilst the 2nd Respondent maintained both in his evidence in Court and at the locus in quo that Imere land extend to the boundary with Okochogbe land.

He further submitted that the sketch map attached to Appellant’s submission is a figment of Counsel’s imagination and a further attempt to improve on Appellant’s case and urged the Court to discountenance same.

Counsel maintained that the sketch map is a surreptitious attempt by Counsel to introduce evidence which Appellant never adduced at the trial. He urged the Court to deride in the strongest terms this attempt by Counsel to improve an otherwise bad case.

The first duty which a Plaintiff seeking a declaration of title to land must discharge is to show clearly the area of land to which his claim relates, its exact boundaries and its extent.

The Plaintiff must lead credible evidence describing and identifying the land with certainty. A Court would not grant a declaration to an unidentified land. See:

Ogedengbe v. Balogun (2007) 9 NWLR Pt. 1039 page 380 at 393;

Otarima v. Youdubagha (2006) 2 NWLR Pt. 964 page 337;

Ogundalu v. Maejob (2006) 7 NWLR Pt. 978 page 148 at 166;

Adelusola v. Akinde (2004) 12 NWLR Pt. 887 page 295;

Okochi v. Animkwoi (2003) 18 NWLR Pt. 851 page 1 at 1-22.

The trial Upper Area Court Idah which heard evidence in the matter and visited the locus in quo made the following finding of fact at page 47 of the Record of Appeal thus:

“The Plaintiff, rather than describing the Imere land which is in dispute abandoned it and described the entire land said to be owned by the Adokpulu ond coiled boundary neighbours to support it. He never at all described Imere land to which his claim relates, let alone doing so with accuracy or precision.

The Upper Area Court went further to say at page 48 –

“As we said earlier, the Plaintiff gave no evidence as to the exact portion of land which he claims belongs to Adokpulu’s Stool. By his own description, the disputed land is only port of his entire land………………………………………

At the locus visit, the Plaintiff started showing us the boundaries of Imere land and told (sic)us round and said ‘this is the land in dispute’. The 2nd Defendant disagreed with this as too limiting. He (2nd Defendant) then showed us a larger portion of land with all the boundaries which tallies with what he said in opens Court on oath.

If we agree with the description of what the Plaintiff has shown us, at the locus in quo, we have nothing on record to compare it with.

We first of all have to see what difference he has with the 2nd Defendant on the identity of the land before we bring in our observations to compare with it. Here he has not described the land at all, let alone with precision. What he has shown at the locus is making a new case altogether.

The result of this is that the Plaintiff has not been able to describe the land he is claiming at all and his case must fail.”

When the Plaintiff/Appellant went on appeal to the High Court of Kogi State sitting at Idah for the Court to make a finding of fact as to whether he had identified the land he claims with precision and certainty, the Kogi State High Court Idah sitting on Appeal said on page 106 of the Record of Appeal thus:-

“In our view, the issue at stoke is the alleged unlawful alienation of part of Otobo land situate at Imere and Ibochi Villages (underlining ours). The Plaintiff/appellant did not lead sufficient evidence as to the exact boundaries of the said land at Imere or Ibochi, as what he did was to lead copious evidence in proof of the entire Adokpulu Aganapoje’s Clan’s land as we were not told that it was his entire clan’s land that was being alienated but only those parts of the family land at Imere and Ibochi. The boundaries of the disputed land should have been stated or proved with certainty such that a Surveyor taking the record could produce a survey plan showing with accuracy the land in dispute.”

At page 106 of the Record of Appeal the High Court Idah held:-

“On the whole, we hold on this issue, that the Plaintiff/appellant never described Imere or Ibochi land to which his claims relate let alone with accuracy or precision and where the claim of a Plaintiff is for a declaration of title such a claim must be dismissed if he fails to prove the boundaries or the identity of the land in dispute. It is noted also that at the locus in quo the Plaintiff plus his witnesses tried to show boundaries an all angles using coconut trees and roads as marks which they never did in their evidence in the open Court.”

The lower Court properly stated the correct position of the law when it held that a visit to a locus in quo is not meant to repair a damage in the case of a litigant or the evidence In the open Court but intended to clarify the evidence given by witnesses before the Court and also to test the veracity of that evidence. It is my opinion that the Plaintiff/Appellant by giving fresh evidence at the locus in quo which he never gave at the open Court before the visit is an attempt to make -a new case entirely.

I have carefully read the testimony of the Plaintiff/Appellant and his witnesses on pages 5-17 and the proceedings at the locus in quo on pages 32-33 of the Record of Appeal. I am satisfied that the Plaintiff/Appellant has not been able to identify clearly and with certainty the boundaries of the land in dispute which he claims belongs to Adokpulu Clan, which has been unlawfully alienated by the 2nd Defendant Omata Oyibo and referred to as Imere land.

I agree with the concurrent findings of fact of both the Upper Area Court Idah and the Kogi State High Court Idah that the Appellant has failed to lead sufficient evidence as to the exact extent and identity of the land he claims. The Appellant having failed to discharge the burden on him of stating clearly the exact extent, boundaries and Identity of the land in dispute and also having not made out a case compelling or reasonably convincing to warrant the setting aside of the concurrent findings of fact of the two lower Courts which entertained the matter at the trial and on Appeal, this first issue is resolved in favour of the 2nd Respondent.

Issue 2:-

“Whether Exhibits D1, D3 and D4 constituted res judicata or on estoppel by standing by,”

Counsel for the Appellant, Dr. S.E. Mosugu submitted that the holding of the lower Court that this Suit is caught by the principle of res judicata by virtue of Exhibits D1, D3 and D4 was a grave error of law.

He maintained that Exhibits D1, D2, D3, D4 and D5 are all interconnected as Exhibit D2-D5 are records of Court proceedings/Judgments in cases pertaining to Imere land and they were all based or grounded on Exhibit D1.

Counsel submitted that Exhibit Dl has constituted a stone wall as well as platform on which the other Exhibit D series were erected and that the legal validity or otherwise of Exhibit D1 will determine the fate of Exhibits D3 and D4 for the purposes of invoking the principle of res judicata or Estoppel against the Appellant.

He maintained that if Exhibit D1 collapses, the question of the privity of Appellant with the cases in Exhibits D2, D3, D4 or the question of the Appellant identifying with the parties in Exhibits D2, D3, D4 becomes a non-issue and the issues or arguments woven round the principle of res judicata or estoppels will collapse.

Dr. S. E, Mosugu submitted that Exhibit D1 is not a valid arbitration for a number of reasons. He maintained that for a valid arbitration, 3 conditions as laid down in the case of Nka v. Onwu (1996) 40-41 IRCN 1303 at 1322, must be met but that these 3 conditions were not met by the evidence before the Court in the present case. He also referred the Court to the cases of:

Agu v. Ikewibe (1991) 4 SCNJ 56;

Ohiaeri v. Akabeze (1992) 2 SCNJ Pt. 1 Page76,

Counsel submitted that Exhibit D1 is in fact and in law not a judicial determination but a letter which is not clothed with judicial character and cannot be a plank for invoking the principle of res judicata.

In his response P.D. Abalaka Counsel for the 2nd Respondent submitted that it is a settled law that a valid customary arbitration will be binding on the parties to it and would constitute estoppel. He referred the Court to the cases of:-

Agu v. Ikewibe (1991) 3 NWLR Pt. 180 Page385 at 418-419;

Anyagbusi v. Ugwunze (1995) 6 NWLRPt. 401 Page255 at 272;

Nka v. Onwu (1996) 40-41 LRCN1303 at 1322.

He further submitted that the conditions for a valid customary arbitration as set out by the Supreme Court in Nka v. Onwu (supra) were present in the instant case.

Counsel maintained that at the trial, Appellant through his Counsel conceded that Conditions (1) & (2) were present but denied the presence of the 3rd Condition. He argued that Appellant’s submission in this Court amounts to approbating and reprobating.

P. D. Abalaka submitted that it is clear from the evidence of the 1st and 2nd Respondents that they both submitted to the process by participating both before the Attah Igala and the inspection of the land.

Counsel further submitted the authority of Attah Igala is not in doubt as both 1st and 2nd Respondents are beaded Chiefs appointed by him to control portions of land entrusted to them and that both the trial and lower Courts found these conditions present.

He maintained that both the trial and lower Courts had no difficulty in finding that there was acceptance of the arbitrator’s verdict by the 1st Respondent who is the head of the Appellant’s family. Counsel submitted that these findings are supported by the evidence before the Court which is unimpeachable and urged this Court not to disturb them. He referred the Court to Chinwendu v. Mbamali (1980) 3-4 SC 31.

P. O. Abalaka maintained that the conduct of the 1st Respondent who is the alter ego of the Appellant’s family show clearly that he accepted the verdict of the Attah Igala on the dispute. He argued that it is that acceptance that shifted the next level of battle to the Appellant’s family tenants in Exhibit D where 2nd Respondent had to contend with Idakwo Ohioga & Co, and that the 1st Respondent testified in favour of Idakwo Ohioga in that proceedings where he admitted that the verdict of the Attah Igala was against him but he accepted the verdict even though grudgingly.

Counsel submitted further that even the decision in Exhibit D4 by the High Court in its appellate jurisdiction took cognizance of the fact that 1st Respondent who was DW1 in Exhibit D3 had accepted the verdict in Exhibit D1. He maintained that the attempt by Appellant to deny knowledge of Exhibit D1 is a failed attempt by the Appellant’s family to avoid the implications of that verdict. Counsel submitted that the verdict is binding on them and they are stopped from relitigating the issue. P. D. Abalaka further submitted that Exhibits D3 and D4 constitute estoppel per rem judicatam against the Appellant and his family. He argued that the instant case by Appellant is an attempt to relitigate or re-open a matter that has been finally and completely settled by Courts of competent jurisdiction. Counsel maintained that the conditions for the application of the plea of estoppel per rem judicatam have been laid down in a long line of judicial pronouncements by the Supreme Court and referred the Court to the following cases:-

Balogun v. Adegobi (1995)1 SCNJ 242 at 253-254;

Fadiora v. Gbadebo (1978) 2 SC219 at 229;

Ezeokonkwo v. Okeke (2002) 5 SCNJ 1 at 20.

P.D. Abalaka submitted that these pre-conditions have been proved to exist in the instant case and that the Appellant’s family is estopped from relitigating the matter.

Counsel submitted further that assuming (without conceding) that the plea of estoppel per rem judicatam does not apply, the Appellant and his family are caught by the doctrine of estoppel by standing by as the circumstances of this case show clearly that the 1st Respondent who is the Chief and head of Appellant’s family as well as other members of the family were aware of the proceedings in Exhibits D3 and D4 but chose not to do anything other than testify as witness for the Defendants in that case even when they were aware that title to the land and its control were in issue. He referred the Court to the cases of:

Lateju v. Iyanda (1959) 5 FSC 257 at 259;

Ndulue v. Ibezim (2002) 5 SCNJ 247 at 262;

Okukuje v. Akwido (2001) 3 NWLR Pt. 700 Page 261;

Onwu v. Nka (supra) at page 1322.

He argued that the Appellants through 1st Respondent did not just stand by during the proceedings in Exhibits D3 and D4 but participated by testifying for his tenants after he had lost the land before the Attah Igala in the hope that by his testimony he would regain the land but he did not apply to be joined as Codefendant.

Counsel for the 2nd Respondent maintained that the actions of the 1st Respondent all throughout those proceedings were for and on behalf of the entire family including the Appellant. He submitted that joining their Chief and family head as Co-defendant in the instant case cannot improve their case as the Appellant and the 1st Defendant/Respondent are one and the same person.

P. O. Abalaka further submitted that the Appellant’s family is estopped by the conduct of standing by and cannot be permitted to re-open the matter.

The general rule of law undoubtedly is that no person is to be adversely affected by a judgment in an action to which he was not a party, because of the injustice of deciding an issue against him in his absence. There are however two exceptions to the general rule. The first is that a person who is in privity with the parties, a “privy” as he is called, is bound equally with the parties, in which case he is estopped by res judicata. The other is that a person may have so acted as to preclude himself from challenging the judgment, in which case he is estopped by his conduct. See:

Ofori Atta II v. Bonsra (1958) AC 95.

Abuakwa v. Adanse (1957) 3 All ER 559.

On circumstances when the conduct of a person may be such that he is stopped from litigating the issue allover again, it has been held by the Privy Council in the case of Abuakwa v. Adanse (supra) at page 561 Lord Denning, who delivered the opinion of the Board, said inter alia that:

“…the conduct of a person may be such that he is stopped from litigating the issue all over again. This conduct sometimes consists of active participation in the previous proceedings as for instances where a tenant is sued for trespassing on his neighbour’s land and he defends it on the strength of the landlord’s title and does so by the direction and authority of the landlord. If the tenant loses the action, the landlord would not be allowed to litigate the title all over again by bringing an action in his own name. On other occasions the conduct consists of taking on active benefit from the judgment in the previous previous proceedings. Such as happened in Re Lart Wilkinson v. Blades (1896) 2 Ch. 788,”

Estoppel per rem judicatam is the rule that a final decision of a Court of competent jurisdiction once pronounced between parties as well as their privies cannot be contradicted by anyone of such parties as against any other in any subsequent litigation between them respecting the same subject matter. Decisions between parties, as a plea, operate as a bar and as evidence that they are conclusive. The decisions must, however be strictly between the parties or their privies, See Mrs G.A.R. Sosan & Drs v. Dr. M.B. Odemuyiwa (1986) 5 SC 152 at 164.

In order to successfully establish the plea of estoppel per rem judicatam, there must be a pronouncement and final decision on the particular issue, There are three conditions which must be satisfied; the fact being relitigated must be:

(1) directly in issue in the case

(2) actually decided by a competent Court, and

(3) appearing from the judgment itself to be the ground on which it is based, See Aminu S. Bamishebi & Ors. v. Zaccheus Faleye & Ors. (1981) 4 SC 1 at 10.

Exhibit D1 is the verdict of the Attah Igala over Imere land. The Exhibit is titled – ‘Land Dispute Between Achadu Imere and Adokpulu Aganapoje’ and dated 6th May 1988. The said Exhibit D1 is on pages 115 -116 of the Record of Appeal.

The Attah Igala, Alhaji Aliyu Ocheja Obaje and President Igala Traditional Council gave his verdict on the disputed land by virtue of the powers conferred on him by the Igala Traditional Council to mediate and to pronounce ruling which are his prerogatives under Igala Land Tenure Law and its customary practices.

Exhibit D1 reads inter alia at page 116 of the Record of Appeal thus:

“And by virtue of the appointment of both disputants who are my traditional sub-ordinate chiefs and are both quarrelling on boundary encroachment committed by Chief Adokpulu-Aganapoje on Achadu Imere’s Traditional fief of Imere, I now order that Chief Adokpulu Aganapoje Anene Adejo should with retrospective effect from 2nd October, 2987 recede to the original traditional boundaries of his numerous fiefs of Ibochi-Ajo Gadi, Ibochi-Atoki, Ibochi Oteagele, Ikelegwu, Otodogu etc. and leave Achadu Imere to manage the only fief under his care on which to subsist with members of their family.”

It is clear from the content of Exhibit D1, the verdict of the Attah Igala, that the Attah Igala declared Chief Omata Oyibo, the 2nd Respondent who is the Traditional beaded Achadu Imere, the caretaker of fief of Imere land, the land in dispute.

The Attah Igala is by Igala Tradition the owner and custodian of all Igala land, and invariably the grantor of land to all chiefs including the parties to this dispute. The Attah having given his decision on the land in dispute, all parties are bound by it.

On the binding effect of matters submitted for traditional arbitration, the Supreme Court in the case of Ezekiel Nka & Ors. v. Joseph Onwu & Ors. (1996) 40/41 LRCN 1303 at 1322 held:

“Where disputes or matters in difference between two or more parties are by consent of the disputants submitted to a domestic forum, inclusive of arbitration or a body of persons who may be invested with judicial authority to hear and determine such disputes and matters for investigation in accordance with customary law and general usages, and a decision is duly given, it is as conclusive and unimpeachable (unless and until set aside on any of the recognized grounds) as the decision of any constituted Court of the land. Such a decision is consequently binding an the parties and the Courts in appropriate cases will enforce it.”

It is clear from the decision cited above that where parties agree to submit themselves to the arbitration of a traditional authority, they should be bound by whatever decision reached by the traditional authority, I am of the opinion that such decision will act as estoppel to future relitigation on the same matter by the same parties or their privies.

Section 61(2) of the Area Courts Law Kogi State provides that nothing shall be deemed to prohibit any person from adjudicating as an arbitrator upon any civil matter in dispute where the parties have agreed to submit the dispute.

A valid arbitration must consist of the following-

(a) submission of both parties to the arbitration

(b) the arbitration must be recognized by both parties, and

(c) the parties must agree to be bound by the decision.

It is the evidence of the 1st Respondent Anene-Adejoh the Adokpulu-Aganapoje under cross-examination at pages 20-21 of the Record of Appeal that the Attah Igala invited him to the Palace and informed him that the Respondent reported him that he the 1st Respondent trespassed into his (2nd Respondent) land. The 1st Respondent went further to state that the Attah Igala sent his Chiefs to inspect the land in the presence of the 2nd Respondent who was the complainant and himself. 1st Respondent said he could not remember his own people who came to the land being inspected that day because they were young.

The 1st Respondent said that it was after they returned from the inspection that the Attah-Igala asked him to leave the land for the 2nd Respondent. He further said that on the day the Attah gave his verdict, he was together with his nephew Zekeri Oyibo. The 1st Respondent said that the Attah Igala instructed him to leave Imere land for the 2nd Respondent saying that the 2nd Respondent has been beaded over Imere.

It is the evidence of the 1st Respondent that the dispute then was between him and the 2nd Respondent and that when he went home he informed the people from his Clan but despite this his Clan’s people accused him of giving out their land to the 2nd Defendant. He said that the Appellant believed that he (1st Respondent) gave the land to the 2nd Respondent and that is why the Plaintiff sued him and had been punishing him since. 1st Respondent at page 193 of the Record of Appeal said:

“Since Attah told me to hands off tribute collection on Imere land, I have since stopped collecting tribute therefrom. I did not dispute the land with Plaintiff but this is the land Attah asked me to hands of for the Plaintiff…

It is Attah af Igala that I have now left the land in dispute far and it now belongs to the Attoh Igolo. All the other land belong to the Attoh Igala.”

It is very clear from the testimony of the 1st Respondent reproduced above that he had submitted to the decision of the Arbitration. I am of the firm view that all the conditions for a valid and enforceable customary arbitration have been satisfied. The procedure adopted in the arbitration are neither illegal nor did they violate the principles of natural justice. The parties are therefore bound by it and it is enforceable by the Court, See Ezekiel Nka v. Joseph Onwu (supra),

The decision of the Attah Igala in the dispute between the 1st and 2nd Respondent arbitrated by him in my opinion can serve as an estoppel against future litigation between the same parties on the same subject matter.

Exhibit D3 is the proceedings in the case between Chief Omata Oyibo and Idakwo Ohioga and 11 Others, Case No. CV58/58 before the Upper Area Court Idah commenced on 1/2/1989,

At the trial, the 1st Respondent Anene Adejoh Adokpulu Adanapoje testified as DW3 on behalf of his tenants, Idakwo Ohioga and others against the 2nd Respondent who was the Plaintiff before the Upper Area Court.

The 2nd Respondent said at page 20 that-

“It was after this the 2nd Defendant started exercising control over the land. After the dispute arose between Idakwo Ohioga and his group. The matter came before this Court and Idakwo Ohioga called me as a witness and I came here to testify for him that I gave him (Ohioga) the land. My Clanmembers were aware of this….

There is also the uncontradicted evidence of the 2nd Respondent Omata Oyibo at page 26 that the Appellant Ocheni Achor was following the 1st Defendant to the Court during the trial between him and Idakwo Ohioga.

It is the evidence of 1st Respondent at page 19 that the Plaintiff/Appellant and himself came from the same Clan and that the Plaintiff/Appellant is the elder in the Clan; but that the control and management of land is in the hands of the beaded Adokpulu-Aganapoje and that at the time the Appellant Ocheni Achor filed this action at the lower Court the 1st Respondent had already been beaded as the Adokpulu-Aganapoje.

The 1st Respondent claimed that as the beaded Chief he took care of the land and reported back to the Clan of his management and that when he was sued by the 2nd Respondent he reported to his Clan that he was sued before the Attah by the 2nd Respondent. During the trials the Appellant was following the 1st Defendant to Court, so also some members of their Clan. The 1st Respondent said the Appellant sued him because he said the 1st Respondent gave their land to the 2nd Respondent. He said that despite his denial, the Appellant still believes that he (1st Respondent) gave their land to the 2nd Respondent and that is why the Appellant sued him and has been punishing him since then. Common sense and prudence demands that a person whose property is being disputed by others should apply to be joined in the suit in order to protect his Interest in the subject matter of the suit, if he is aware of the matter. It is clear from the evidence available before the Court that the Appellant and the 1st Respondent knew of the matter before the Upper Area Court Idah concerning the land, yet failed to apply to be joined as Defendants, rather the 1st Respondent prefer to testify for their tenants and they lost the case.

The Appellant now came through the back door seeking to claim title to the land by suing his brother the Adokpulu-Aganapoje. The 1st Respondent Anene Adejo the Adokpulu-Aganapoje from the evidence before the Court was acting on behalf of the Clan because of the authority vested in him to administer the land and all its people. If he should go to Court even in his name concerning the land, he does soon behalf of his Clan. If he succeeds, the glory goes to the clan and if he fails the agony also goes to the clan. It follows therefore that members of the Clan are all bound by all his actions, successes and failures. When the 1st Respondent went and testified for Idakwo Ohioga and others who were tenants of the Clan, he did that in his capacity as the Adokpulu-Aganapoje representing the entire Clan. The question to ask is whether he can now claim the same land which he lost through his tenants. The answer is in the Negative.

It is the principle of ‘estoppel by standing by’ that if a person is content to stand by and see his battle fought by somebody else in the same interest, he is bound by the result and should not be allowed to re-open the case. See:

Wilson v. Oshin (2000) 6 SC (Pt. 111) page 1;

Bello v. Payose (1999)11 NWLR Pt. 627 page 510.

In Ezekiel Nka v. Onwu (supra) the Supreme Court said inter alia:-

“So too, a person who knowingly stands during litigation concerning the title to the land in which he claims ownership to or an interest in, circumstances in which he ought reasonably be expected to apply to be joined as a party to establish his claim may find himself bound by the judgment in the suit even though he was not a party to the suit in which the judgment was given.”

The Appellant and the 1st Respondent stood by and did not apply to be joined in the suit as Co-defendants. Joining the 1st Respondent by the Appellant in the case in Exhibit D1 as Co-defendant at the trial Court in the present case cannot make the case of the Piaintiff any better. It is in evidence before this Court as contained in the Record of Appeal that the Appellant and the 1st Defendant Anene Adejo Adokpulu-Aganapoje are one and the same person being members of the same Clan battling to regain title to the land they claim to be their Stool land. It is my opinion that their action is caught up by the Doctrine of estoppel by conduct.

Since the dispute in Exhibit D1 was between the 1st Respondent and the 2nd Respondent, the Adokpulu-Aganapoje Clan cannot be allowed to contrive a scheme whereby another member of the Adokpulu-Aganapoje will file an action and joined the 1st Respondent with a party with whom it has lost in a dispute concerning the same land with the same Defendant in the former case who in this case was made a 2nd Defendant.

I am of the opinion that there should be an end to litigation and in this circumstance the doctrine of estoppel will apply to stop the Appellant who knew of the case involving their stool land and did nothing until they lost from relitigating the same matter.

Exhibit D4 on pages 223-224 of the Record of Appeal is the decision of the High Court of Justice, Idah Kogi State, in Suit ID/15A/91 which is an appeal by Idakwo Ohioga & 13 Ors against the victory of Chief Omata Oyibo at the Upper Area Court Idah, confirming that the 2nd Respondent is by virtue of his office as Achadu Imere, the owner of Imere land and that he is entitled to yearly tribute of Oil and Okoro fruits from the Appellants.

I am of the opinion that Exhibits D1, D3 and D4 are Res Judicata against any future litigation on the same subject matter and between the same parties.

The second issue is resolved in favour of the 2nd Respondent.

Issue 3

“Whether the lower Court properly evaluated the evidence and came to the right conclusion that the scales of justice weighed more or tilted in favour of 2nd Respondent. Counsel for the Appellant, Dr. S.E. Mosugu submitted that it is trite law that the judicial basis for over-turning the finding or conclusion of a lower Court on fact is when the finding or conclusion is perverse. He referred the Court to the cases of:-

Balogun v. Labiran (1986) 6 SCNJ 71;

Agunedu v. Onwumere (1994)1 SCNJ 166;

Amadi v. Nwosu (1992) 6 SCNJ 59.

Counsel argued that the 2nd Respondent gave the names of a total of 8 or 9 boundary men or potential witnesses of Imere land but refused to call them as witnesses on the allegation that they are on the side of the Appellant. He maintained that the 2nd Respondent set up a conspiracy theory for his inability to call boundary men as witnesses. Counsel submitted that this is not a recognized excuse under the rule in Odiche v. Chibogwu (supra).

Dr. S.E. Mosugu further submitted that one could understand if the 2nd Respondent cannot call Adokpulu (his opponent) as a witness but to say all boundary neighbours are all on the side of the Appellant shows that 2nd Respondent has no defence to Appellant’s claim.

He argued that the lower Court’s finding or conclusion on the defence of 2nd Respondent after Appellant had discharged his burden and shifted same to the 2nd Respondent was perverse and gross error which has occasioned a miscarriage of justice.

Counsel maintained that the lower Court’s belief or acceptance of the conspiracy theory was perverse finding. Dr. S.E. Mosugu further submitted that it was perverse for the lower Court to believe and accept the 2nd Respondent’s theory, supported by the Attah Igala that the reason for the loss of Imereland by 2nd Respondent and his people was on account of death or sickness. He argued that whilst the 2nd Respondent gave “death” as the cause, the Attah Igala ascribed it to “sickness”.

He maintained that death and sickness are two different things as there can be death without sickness even for a very old person.

Counsel submitted that in the light of the perverse finding/conclusion of the lower Court, there has been a miscarriage of justice. He referred the Court to:

Total Nigeria Ltd. & Anor. v. Wilfred Nwako & Anor. (1978) 5 5C 1;

Nnaji Foro v. Okonu (1986) 4 NWLR Pt. 36 Page 506;

State v. Ajie (2000) 8 WRN.

He further submitted that the lower Court did not properly assess/evaluate the evidence of the Appellant and the Attah Igala to the fact that Imere land was awarded/held in trust for Adokpulu (the head of the Appellant’s family).

Dr. S. E. Mosugu maintained that the reason for the debeading of the Adokpulu, as stated in Exhibit D2, is diametrically opposed to the reason for the debeading as found by the learned Judges. He submitted that the finding of the lower court on the reasons for the debeading of Adokpulu Aganapoje is perverse.

Counsel further submitted that the lower Court ignored the fact that on the basis of Exhibit D3 where a land in dispute is well-known to both parties, proof of identification becomes a non-issue. He referred the Court to:-

Ojo v. Ape (1998) 6 SCNJ 139;

Chukwu v. Okoro (1999) 65 LRCN 40;

Sunday Ogunsina v. Makanmi (2001) 86 LRCN.

Dr. S. E. Mosugu maintained that on the reason for debeading the 1st Respondent, the lower Court failed to properly assess the testimony of DW1, the Attah Igala neither did the lower Court make a proper finding/conclusion from the evidence placed before it, rather the lower Court treated as sacrosanct and Immutable the evidence of the Attah Igala.

Counsel submitted that in the light of the contradictions in Attah Igala’s evidence on other issues, the lower Court was in error to have treated the testimony of the Attah Igala as sacrosanct and credibie and he referred the Court to the case of Registered Trustees, AMORC v. Awoniyi (1994) 7-8 SCNJ 390.

He further submitted that in some decisions by this Honourable Court, the Attah’s evidence in land matters had been viewed with suspicion in terms of its veracity. Counsel referred the Court to: Onalo v. Aguda (1997) 4 NWLR Pt.526 Page540.

Dr. S.E. Mosugu maintained that it is the perverse findings that led the lower Court to conclude that the evidence of the 2nd Respondent would weigh more on the imaginary scale.

He argued that the conclusion of the lower Court that the Appellant never described Imere land let alone with accuracy and precision is wrong. Counsel submitted that the description which the Appellant gave of Otobo land (inclusive of Imere land) was a progressive one from the general to the specifics.

Counsel maintained that there was adequate description not only of the boundaries of Otobo land in general but also of Imere land in particular. He argued that the 2nd Respondent’s argument at the locus in quo that Appellant was claiming a large land as Imere land by 100 metres was not proved by the 2nd Respondent. Counsel maintained that the onus shifted to 2nd Respondent to show that Imere land is not the larger land but rather it is the larger land shown less the 100 metres. Dr. S.E. Mosugu submitted that a proper judicial weighing of the evidence of the parties on an imaginary scale would show that Appellant’s evidence weighs more.

He further submitted that when the lower Court reviewed the evidence of the parties’ witnesses, it failed to review the evidence of 2nd Respondent and his only witness, the Attah Igala. Counsel maintained that the Judgment only pointed out apparent contradictions in the evidence of the Appellant when in fact the case of the 2nd Respondent is replete with contradictions.

Counsel to the Appellant argued that in view of these contradictions, the 2nd Respondent’s evidence could not possibly weigh more than that of the Appellant neither can it be said that the 2nd Respondent’s evidence has been coherent and reliable and of more probative value than that of the Appellant.

He submitted that there has been clearly failure to adequately evaluate the evidence before the Court and where findings were made, they were perverse.

Dr. S.E. Mosugu further submitted that this case is such that this Honourable Court will interfere with the lower Court’s conclusion. He referred the Court to the cases of:

Kindey v. Governor Gongola State (1988) 5 SCNJ 208

Adeyeye Ogun Traditional Council v. Ajiboye (l987) 7 SCNJ1;

Registered Trustees of Apostolic Faith v. Bassey (1987) 7 SCNJ 167;

Chigbu v. Tonimas Nigeria Ltd. (1999) 3 NWLR Pt. 593 Page 115.

In his response, Counsel for the 2nd Respondent P. D. Abalaka submitted that Exhibits D3 and D4 are documents tendered by 2nd Respondent in support of the plea of estoppel per rem judicatam and they relate to the Imere land now in dispute.

He maintained that the Appellant has denied knowledge of Exhibits D3 and D4 and has attempted to prove identity of Imere land afresh but faltered fundamentally in the process while trying to reduce the extent or size of Imere land as contested in Exhibits D3 and D4. Counsel submitted that the lower Court appreciated the relevance of Exhibits D3 and D4 and made good use of them. He maintained that the findings of the lower Court on these Exhibits especially in respect of the plea of estoppel are reasonable and supported by evidence.

P. D. Abalaka further submitted that both parties traced their root of title by traditional history to Ayegba Oma Idoko, the legendary Attah Igaia and that the Attah Igaia is a direct descent of Ayegba Oma Idoko.

He maintained that both 1st and 2nd Respondents were beaded by the Attah Igala and they owe allegiance to him and that DW1 gave traditional evidence of the respective roles of the two Chiefs for the Attah Igala and of his role and verdict in the dispute between them over Imere land.

Counsel submitted that the evidence of DW1 was very credible and the lower Court was right to have ascribed credibility to it.

He argued that assuming (without conceding) that his evidence was not credible, the statement by the lower Court has not occasioned any miscarriage of justice to the Appellant because the decision of the lower Court was not based on the statement but on the two grounds of failure of Appellant to establish identity of the land in dispute with reasonable certainty and the plea of estoppel per rem judicatam which was sustained by the Court.

Counsel submitted that there are no material contradictions in the 2nd Respondent’s case made out at the trial. He maintained that Appellant has failed to establish any form of estoppel against the 2nd Respondent, whether by the rejected Exhibit or the additional evidence tendered in this Court.

P. D. Abalaka on the whole submitted that the Appellant has not established any basis to warrant interference with or reversal of the judgment of the lower Court.

It is the complaint of the Appellant before this Court that the lower Court did not properly evaluate the evidence before it and as a result its finding or reasoning is perverse. He pointed to the fact that the 2nd Respondent gave names of 8 or 9 boundary men as potential witnesses but refused to call them.

It is trite that burden of proof in civil actions rests on the Plaintiff because he who asserts must prove what he claims. This requirement of the Law is not different in an action for declaration of title to land; there also a Plaintiff has the burden of proving his case upon his own evidence and cannot rely on the weakness of the Defendant’s case. See:

Otanwa v. Youdubagha (2006) 2 NWLR Pt. 964 page 337;

Onisaodu v. Elewuju (2006)13 NWLR Pt. 998 page 517;

Eze v. Atasie (2000) 6 SC (Pt.1) page 214;

Elemu v. Akenzua (2000) 6 SC (Pt.111) page 26 at 29-30;

Itauma v. Akpe.lme (2000) 7 SC (Pt.11) page 24 at 30.31;

Madubuonwu v. Nnalue (1999)11 NWLR Pt. 628 page 673;

Aklo Abey v. Alhaji Ibrahim (1999) 12 SCNJ 234.

It is elementary law that a litigant only need to call material witnesses to prove his case. Material witnesses are those witnesses that can help resolve the facts in dispute between the contesting parties and where a witness cannot play such a role he is not material. See Okon Udo Akpan v. State (1991) 5 SCNJ 1 at 10.

A litigant is at liberty to call such number of witnesses sufficient to prove his case. There is no duty on him to call all witnesses he named in the process he had filed, See Stephen Onowosha v. Jonah Ovoh (1999) 1 SCNJ 13. One credible witness could be enough and in the present case the lower Court found that DW1, the Allah Igala Alhaji Aliyu Ocheja Obaje, is a credible witness for the 2nd Defendant/Respondent.

The 2nd Respondent in his testimony at page 28 of the Record gave his reason for not inviting those witnesses as follows:

“I cannot call Adakpulu to testify for me because he is in calaboration with the Plaintiff. I cannot also call Audu Achimugu to testify for me because he is on their side. All my boundary neighbours are on the side of the Plaintiff and therefore I cannot call any of them to testify for me. If we go to the land in dispute I cannot identify any burial place of my ancestors because it has taken a long time people left. The land has been lost from Achadu Imere at the time of Atobo Ijomi, until Attah gave us the land.

It was after the Attah gave me paper telling me to be owner of the land the Adokpulu challenged my ownership of the land.”

The Appellant has also complained that there were contradictions in the evidence of 2nd Respondent. He argued that one of such contradictions in the testimony of the 2nd Respondent and that of the Attah Igala relates to the reason why the Imere Clan left the land in dispute. He said that while the 2nd Respondent said it was death of the family members, the Attah Igala said it was sickness.

It is not in dispute that the Imere Clan lived on the land in dispute and that when it was abandoned the Adokpulu Clan occupied it. The cause of the Imere Clan abandoning the land is not contested before the lower Court and that fact cannot be made an issue before this Court. It is common knowledge that in rural communities such as Imere, high rate of death or sickness are regarded as a taboo and sufficient reason to compel the natives to abandon the land for a safer place.

There is no material contradiction between the evidence of the 2nd Respondent and that of the Attah Igala. What the Appellant considered as contradictions are not material enough to cause any miscarriage of justice and in fact had not resulted in any miscarriage of justice.

I am satisfied that the lower Court properly evaluated the evidence before it and that its findings or conclusions are not perverse. The third issue is also resolved in favour of the Respondent.

Issue 4

“Whether the Kogi State High court was right in not according the status of res judicata to the earlier Judgment or decision(s) on Imere land by the Attah of Igala’s “B” Court (with or without the originals of the record of proceedings of the said Court as well as the arbitration by the 8 Councillors of Igala Native Authority).”

Dr. S. E. Mosugu, Counsel for the Appellant submitted that the trial Upper Area Court was presented with cogent evidence about the earlier Native Court proceedings over Imere land but the High Court did not make reference to this piece of evidence on which the trial Upper Area Court made no findings apart from rejecting it by the Ruling of 13/2/2002 when the photocopy of the Judgment was tendered.

Counsel maintained that the rejection of the photocopy was in itself a mere technicality and that the Supreme Court has moved away from rigid adherence to technicalities to doing substantial justice especially as this was a case in an Area Court. He referred the Court to the cases of:

Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR Pt. 135 Page 688 at 717;

Onakoya v. Federal Republic of Nigeria (2002) 11 NWLR Pt.779 Page 5995 at 659.

He argued that the 1950 Judgment of the Attah Igala’s B Court is substantially relevant to the entire proceedings. Counsel maintained that the suit pertained to Imere land and was a litigation between Ocheja of Imere land Ugbamatigbi of Okpe and it brought out the evidence and vital role or place of Adokpulu who gave the land to them as well as the concept of caretakership or agency.

Counsel for the Appellant submitted that it is clear from the entire Record of proceedings that whether as carriers of the Attah Igala’s Lamp or as Chief farmers to the Attah Igala or as Recovers of Attah’s stolen mask and goats, the 2nd Respondent has no land attached to his office but is a mere caretaker of the land.

He argued that because of this position of the 2nd Respondent (i.e. having no land of his own), the Attah Igala (DW1) went on talking in Exhibit D1 about “new Justice when crisis comes”, “modern trends”, “power to subtract or add” effecting “a correction or adjustment”, and the need for 1st Respondent “with retrospective effect” to “recede” to his “numerous fiefs”.

Counsel submitted that the Attah Igala was trying to institute a new system of land distribution/holding at the expense of the Appellant’s family and urged this Court not to allow it.

He further submitted that the lower Court’s Judgment that the Evidence Act applies to proceedings in Area Courts and accordingly to the Judgment of the Attah Igala “B” Court was in error.

Dr. S. E. Mosugu maintained that the Supreme Court has held in a long line of cases that the Evidence Act does not apply to Area Courts and he referred the Court to the case of:

Kuusu v. Udo (1990) 2 SCNJ 40.;

Esangbedo v. State (1987) 7 SCNJ 10;

Latunde v. Oseni (1989) 5 SCNJ 59.

Counsel submitted that the rejection of the 1950 Judgment of the Attah Igala ‘8’ Court has occasioned a miscarriage of justice to the case of the Appellant and his family.

He further submitted that the 1950 Judgment of the Attah Igala “B” Court is a vital piece of evidence on which the Appellant and his people relied upon to show that he or they were the landlords of Imereland and to show that both Okpe and Imere lands are under Adokpulu Aganopoje but which land was let out under caretakership arrangement.

Counsel maintained that the 2″ Respondent is estopped from disputing the lordship of Appellant’s Adokpulu Aganapoje clan people over Imere land. He argued that the principle of ResJudicata would apply here and it avails the Appellant in respect of this Suit over Imere land.

Dr. S.E. Mosugu submitted that the tendering of a non-certified photocopy was the fault of Counsel not that of the Appellant and that it is trite law that the sin of Counsel is never visited upon the party in litigation. He referred the Court to Shanu v. Afribank Nig. Ltd. (2000)13 NWLR Pt. 684 Page 392.

Counsel for the Appellant further submitted that in view of the above, this Court would be justified to consider the issues relating to the 1950 case over Imere land in the interest of justice.

He maintained that where parties submit their dispute to a domestic forum or body of persons who act as arbitrators and the dispute is heard and a decision is given, that decision becomes conclusive, unimpeachable and binding on the parties as there should be an end to litigation. Counsel referred the Court to the case of Nka v. Onwu (supra).

Counsel submitted that this present case is, by virtue of the decision in the earlier Attah Igala’s “B” Court on Imere land, caught by the principle of res judicata. He referred the Court to the cases of:

Udeze v. Chidebe (1990) 10 SCN! 1;

Adomba v. Odiese (1990) SCN! 135.

In his response, P. D. Abalaka Counsel for the 2nd Respondent submitted that during the trial at the Upper Area Court, Appellant through PW5 tendered the Attah Igala “B” Court proceedings of 1950 between Ocheja of Imere and Ugbamatigbi of Okpe; but the 2nd Respondent objected to the admissibility of the document. He maintained that the trial Court in a considered ruling rejected the document holding that being an uncertified photocopy of a public document, it was admissible.

Counsel argued that in the Notice and grounds of Appeal before the lower Court, the Appellant challenged the rejection of this document in his Additional ground 4 but before the hearing of the main Appeal at the lower Court, the Appellant in an interlocutory application sought to adduce additional evidence in the Appeal by tendering the original record of proceedings before the Attah Igala’s “B” Court. He maintained that the interlocutory application was heard on 13th May, 2002 and that the lower Court in a considered ruling dated 14th March, 2002 refused the application.

P. D. Abalaka submitted that in the course of argument in the interlocutory application, Appellant’s Counsel touched on the applicability of the Evidence Act to Area Courts and the lower Court in its ruling also touched on the applicability of the Evidence Act to Area Courts but hastened to add that the correctness or otherwise of the Upper Area Court’s rejection of the document could be properly canvassed in the substantive Appeal.

Counsel further submitted that the Appellant abandoned the additional ground 4 when arguing the substantive Appeal. He maintained that the issue of applicability of the Evidence Act to Area Courts or the rejection of the Attah Igala “B” Court proceedings was never canvassed before the lower Court. Counsel argued that in the light of the above scenario, the lower Court could not reasonably be expected to make findings or pronouncements as to res judicatam in respect of documents which were not before it and in respect of which no arguments had been canvassed.

He submitted that the law is trite that any ground of Appeal in respect of which Appellant fails to make submissions is deemed to have been abandoned and referred the Court to the case of Atoyebi v. Gov. Oyo State (1994) 5 SCNJ 62 at 78.

Counsel for the 2nd Respondent further argued that the Appellant had in his application dated 3rd February, 2004 sought the leave of this Court to raise for the first time the issue of wrongful exclusion of evidence (Exhibit) and that the leave was granted by this Court in its Ruling of 24th May, 2006. He maintained that this was in realization of the fact that the issue of exclusion or rejection of the document had not been canvassed before the lower Court. Counsel submitted that in the circumstance, the Appellant’s submission that the lower Court erred in law in excluding the document or in refusing to accord res judicatam status to it is misconceived.

P. D. Abalaka conceded that the Evidence Act does not apply to Area Courts but argues that the Evidence Act contemplates a situation where the Governor of a State or region can confer on Area Courts jurisdiction to enforce any or all the provisions of the Act by virtue of Section 1(2)(c) of the Evidence Act.

He maintained that this provision is as old as the Evidence Act in Nigeria, though it was omitted in the Revised Laws of the Federation of Nigeria 1990; it was restored by the 1991 Amendment. Counsel submitted that it is in the exercise of the powers conferred by the above provision that the Benue State Government in 1977 vide the Evidence Law (Amendment) Edict No. 19 of 1977 made the Evidence Act applicable to all judicial proceedings before an Upper Area Court. Counsel for the 2nd Respondent maintained that the amendment removes Upper Area Court from the class of Area Courts exempted from applying the Evidence Law but limits the class to only Area Courts Grade I and II Idah where the trial Court is located. He submitted that this remained so until nth August 1991 when Idah became part of the newly created Kogi State.

He argued that by the State Creation (Transitional Provisions) Decree of 1991, all the laws and regulations applicable in Benue State as at nth August, 1999 remained applicable to parts of Kogi State carved out of Benue State until other provisions are made in that behalf by the new State and that Kogi State has not made any law or regulation that renders the Evidence law inapplicable to the Upper Area Courts and he referred the Court to Evidence Law (Amendment) Edict 1977.

On the basis of the above argument, P.O. Abalaka submitted that the trial Upper Area Court was right when it rejected the Exhibit tendered by the Appellant since it was an uncertified photocopy of a Court proceeding which in that capacity is a public document.

He submitted further that by the combined effect of Section 97(1)(e) and (2)(c ) of the Evidence Act only a Certified true copy of the document could have been admissible and referred the Court to the cases of:

Minister of Lands Western Nigeria v. Azikiwe (1969) All NLR49;

Kelani v. Ajadi (1979)1 FNLR 150.

P. D. Abalaka maintained that assuming (without conceding) that the Attah igala “B” Court proceedings is admissible in Law, it cannot operate as estoppel against the 2nd Respondent as the pre-conditions for the plea are absent in this case.

He argued that unless the pre-conditions are established, the plea of estoppel per rem judicatam cannot be sustained. Counsel referred the Court to the following cases of:

Oke v. Atoloye (1985) 1 NWLR Pt. 15 Page241 at 260;

Fadiora v. Gbadebo (1978) 3 5C219 at 229;

Ezeokonkwo v. Okeke (2002) 5 SCNJ1 at 20.

He submitted that the parties in the Attah Igala “B” Court proceedings were Ocheja of imere and Ugbamatigbi of Okpe; that the cause of action in it was trespass but the res or subject matter of the trespass is not stated. Counsel maintained that Appellant’s assertion that it relates to Imere land is merely specuiative as the document itself is silent on the issue.

P. D. Abalaka further submitted that both parties in the case were said to be tenants of the Appellant’s family but none of the parties has any relationship with the 2nd Respondent against whom the plea is made.

Learned Counsel for the Appellant has made a heavy weather of the Judgment of the Attah Igala “B” Court which was rejected by the lower Court. The prayer of the Appellant to tender the Result of investigation in the land dispute between Ocheja of Imere v. Ugbamatigbi of Okpe was granted by this Court on 24/5/2005. However it was only on 11/3/09 that the said document was 41 tendered and admitted in evidence as Exhibit A. The said Exhibit A was admitted in evidence before this Court as new evidence which was not before the lower Court as a result of its being excluded by the lower Court. Both Exhibit A and the judgment of the Attah Igala’s ‘B’ Court are hereby reproduced for ease of reference:

“ATTAH IGALA’S ‘B’ COURTHELD AT IDAH.”

CASE NO. 16/50/214/4/50

OCHEJA(M) OF IMERE IGALA

v.

UGBAMATIGBA OF OKPEIGALA

CAUSE OF ACTION: Trespass.

FINDING: The Court found for the Plaintiff for the evidence of Ada Okpulu who gave the land to them.

COURT ORDER: The Court ordered Plaintiff to take his land plus sums fees 10/-

(sgd) M.J. Okpanachi (sgd)

(sgd) 31/5/50.”

Exhibit A is reproduced as follows:

RESULT OF INVESTIGATION IN THELAND DISPUTE

BETWEEN

(a) OCHEJA(M) OF IMERE

&

(b) UGBAMATlGBI OF OKPE

The following acted as Arbiters:

1. Odomata – Councillor for Court
2. Mallam U.A.E.R – Councillor for Districts
3. Alhaji Saidu – Councillor for Court
4. Mallam Umaru Gande – Councillor for Court
5. Mr. Opaluwa Onuchayo – Councillor for Lands
6. Mr. M.J.O. Okpanachi – Councillor for Works
7. Mr. H. Obaje – Councillor for Police & Prisons
8. Mr. D.A. Ogu – Councillor for Education & Medical

On the 6th October, 1952, we proceeded to the Area in dispute in company of Onu Igala Mela, the District Head and the Gejo, i/c, of the Area.

On arrival, we summoned the presence of Ada Okpulu the chief landlord and asked him to tell us all he knew about the land in dispute. To make his points quite clear he took us round and showed us how the land has been demarcated to the fathers of the two parties in question. He further pointed out that although Ugbamatigba’s sister is his wife, yet he could not help saying without fear that Ugbamatigba is the one causing trouble as he had trespassed into Ocheja’s land. He (Ada Okpulu) called Odaudu, Obaka and Acho as witnesses and they corroborated his statement.

Ugbamatigbi was next called upon and asked to produce witnesses to support his claim This he failed to do.

It is noteworthy to mention that at the sitting of the “8” Court in 1950 – Case No. 16/50/1 – and the enquiry conducted by the Councillor for lands in 1952, Ugbamatigbi was found to be making an illegitimate claim of the land.

After a thorough review of the said case we were satisfied beyond all reasonable doubt that Ugbamatigbi had no right to claim the land and so had to hand over the land to Ocheja. We further drew their attention to the demarcations and warned that every future defaulter would be sentenced to 6 months imprisonment with hard labour.

(signed) (signed) (signed)

ISONO Odumata O. Onucheyo Alhaji S.

Councillor for Court Councillor for Lands Councillor for Court

(signed) (signed) (signed) (signed)

U. Ali M. J. O. Okpanachi H. Obaj D. A. Ogu

Councillor for Districts Councillor for Works Councillor for Police Councillor for Education

(signed)

Umoru

Councillor for Court D.A. Ogadu appeal & D. Court Scribe.”

Both the judgment of the Attah Igala’s “B” Court and the document titled Result of investigation in the land dispute between Ocheja (M) of Imere and Ugbamatigbi of Okpe are public documents and by nature of the provisions of Section 112 of the Evidence Act only certified true copies of public documents can be produced in proof of the content of public documents or parts of the public documents of which they purport to be copies.

The copy of the Attah Igala’s “B” Court Judgment which was tendered at the lower Court and rejected was an uncertified photo-copy of this document and therefore a secondary evidence of the said public document. Sections 97(i)(a), 97(i)(e), 109(a)(i),(ii),(iii) and (b) of the Evidence Act permits secondary evidence to be given of the existence, condition or contents of documents when the original is a public document, is a document forming the acts or records of the acts of (a)(i) a sovereign authority, (ii) of officials bodies and Tribunal, and (iii) of public officers, legislative, judicial and executive, whether of Nigeria or elsewhere, (b) public records kept in Nigeria of private documents.

A community reading of Sections 97(1)(e) and 2(c) of the Evidence Act has the effect of making a public document not certified inadmissible in evidence. A photo-copy of the Attah Igala’s “B” Court decision of 1950 having not been certified was properly rejected by the lower Court. Learned Counsel for the Appellant has conceded that the non-certification of the photo-copy of the said decision was the fault of Counsel and that the sin of Counsel should not be visited on the Appellant. He had also argued that the rejection of the document was in itself a mere technicality and that the Supreme Court has urged Courts to move away from rigid adherence to technicalities to doing substantial justice, especially as this was a case from an Area Court. The position of the law is that only copies of public documents certified are admissible in evidence in any trial. I am of the opinion that the requirement of the Evidence Act cannot be waived by any party to the litigation or even the Court.

Another Attah Igala’s ‘B’ Court decision did not give a description of the res or subject matter of the trespass. In fact the decision was silent as to the extent of the boundaries of the land in dispute. There is also no nexus between that case of trespass and the case which is the subject of the present Appeal.

The Appellant had also not led any evidence to show that the conditions exist in that case to warrant declaring it as Estoppel or conferring on it the status of estoppel against the parties to this Appeal.

Those conditions that must exist are:

1. There must be submission of both parties to the arbitrator.
2. The arbitrator must be recognized by both parties as a recognized authority.
3. The parties must agree to be bound by the decision of the arbitrators.

See George Nwabia v. Adiri & Ors (1958) 5 5CNJ451.

It is the submission of learned Counsel for the Appellant that the rejected or wrongly excluded record or verdict of the Attah Igala ‘B’ Court proceedings read along with Exhibit A tendered in Court from the bar on 11th March 2009, constitute estoppel per rem judicatam against the 2nd Respondent. The reasons he gave are that:

1. The wrongly excluded Attah’s ‘B’ Court proceedings satisfies all conditionalties for the operation of the plea of estoppel per rem judicatam as laid down by the Supreme Court of Nigeria in several cases. He referred the Court to the cases of

Oke v. Atoleye (1985)1 NWLR Pt. 15 page 241; and

Fadioro v. Gbadebo (1978) 3 5C219 at 229.

2. He argued that it is on record that Imere and Okpe are separated by Ajaka-Ibochi Road, an adjacent land well-known to the parties. He submitted that the evidence in the record of proceedings shows that Appellant’s Clan owns the surrounding lands to Imere land, and therefore there is the presumption about ownership of adjacent land, in favour of Appellant. He cited Section 46 of the Evidence Act.
3. He maintained that the submission made on behalf of the 2nd Respondent that the res or subject matter is not stated in either or both of the rejected, wrongly excluded Attah Igala “B” Court and Exhibit A – “Result of Investigation in the land dispute between Ochjeja of Imere and Ugbamatigbi of Okpe is being simplistic. He contended that the fact and background is that the said earlier investigated and resolved dispute was between two tenants or sub-tenants and that the 1st Respondent the Adokpulu Aganapoje was the acknowledged chief landlord.

At page 12 of the record of Appeal Egbuun Adejo the son of the Appellant said in his testimony on behalf of the Plaintiff that there was a time a dispute arose between Ocheja of Imere and Ugbamatigbi of Okpe over the extent of their holding for Adokpulu. He said that the Adokpulu then was Idakpi Okpachi who testified in the case and showed the boundaries. The Court he said ruled in favour of Ocheja and that Ocheja continued to pay tribute to the Adokpulu till he died. The witness said that they collected the record of proceeding, but that the original is before the Grade 1 Area Court Ajaka in another case. The photo-copy of the document was tendered in evidence but it was rejected by the trial Court. In its ruling on page 14 of the Record of Appeal the trial Upper Area Court said-

“In the instant case, it appears the original was merely photo copied and brought here for tendering. The question is this. Is this the true photo copy of the original of what was done that time? Who attests to it that this is the true photo copy? Probably it is the Counsel himself from the bar or the witness from the box. We are afraid, we cannot take any as confirming the truth. That is why this document is inadmissible. We reject it. It should be so marked. If Counsel wants anything like that admitted, he should get a certified true copy.”

In their reply brief, learned Counsel for the Appellant went at length to make submission on the Evidence Act and the Benue State Evidence Law (Amendment) Edict No. 11 of 1977, the State Creation Decree 1991 and Sections 316 and 317 of the 1999 Constitution. He contended that what the 2nd Respondent is postulating by the Annexure of Benue State Law as being applicable to Kogi State is a Jurisprudential anathema, and submitted that the Evidence Act as well as the annexed Benue State Evidence Law (Amendment) Edict 1977 No. 11 does not apply to Area Courts in Idah or anywhere in ‘Sovereign’ Kogi State. He insisted that Kogi State is not operating under 2 different regimes of Evidence Law, one carried over from Benue State and the other inherited from Kwara.

It should however be noted that it is quite clear from the ruling of the Upper Area Court Idah reproduced in this Judgment that the issue of regime of two evidence laws operating in Kogi State was never canvassed before the trial Court nor raised by it. The Attah Igala’s Court document was rejected because the Court was not convinced of its integrity and concluded in its words:

“We are afraid, we cannot take any as confirming the truth. That is why this document is inadmissible. The said document rejected which is at page 270 of the record of Appeal has been reproduced in this Judgment.”

The rejection of the document was made an issue on Appeal before the Kogi State High Court sitting at Idah in the Appellant’s Additional ground 4 to his Notice and grounds of Appeal on pages 56, 57 of the record of Appeal. However before the hearing of the Appeal at the lower Court, the Appellant through his Counsel filed an application seeking to adduce additional evidence in the Appeal by tendering the original record of proceedings before the Attah Igala’s ‘B’ Court.

The application was heard and refused. See pages 72, 80-90 of the record of Appeal.

It is the Appellant’s Counsel that touched on the applicability of the Evidence Act to Area Court. See page 81 of the record of Appeal. The lower Court also touched on the applicability of the Evidence Act to Area Courts in its ruling but also added that the correctness or otherwise of the trial Court’s rejection of the document could be properly canvassed in the substantive Appeal. See pages 89-90 of the record of Appeal.

The Appellants abandoned their Additional ground 4 when the substantive Appeal was argued as a result the issue of applicability of Evidence Act to Area Courts or the rejection of the Attah Igala’s “B” Court proceedings was never canvassed before the lower Court.

What the Appellant Counsel referred to as Ground 4 relates to the failure to take Defendant’s plea at the commencement of proceedings. See page 93 lines 27-30.

I am of the opinion that in the light of the omission by the Appellant at the lower Court, the lower Court could not reasonably be expected to make findings or pronouncements as to res judicatam in respect of the Attah Igala’s “B” Court proceedings which was not before it and in respect of which no argument had been canvassed by the Appellant. It is trite law that any ground of Appeal in which no submissions are made is deemed abandoned. See Atoyebi v. Governor of Oyo State (1994) 5 SCNJ 62 at 78.

A careful perusal of the Attah Igala ‘B’ Court proceedings will reveal that the document cannot operate as estoppel against the 2nd Respondent as the pre-conditions for his plea of estoppel per rem judicatam are absent in this case. The pre-conditions are as follows:

1. The parties or their privies are the same in both the previous and present proceedings.
2. The claim or the issue in dispute in both proceedings is the same.
3. The res or subject matter of the litigation in the two cases is the same.
4. The decision relied upon to support the plea of estoppel per rem judicatam must be valid, subsisting and final, and
5. The Court that gave the previous decision relied upon to sustain the plea must be a Court of competent jurisdiction.

Unless the above pre-conditions are established by the Appellant the plea of estoppel per rem judicatam cannot be sustained by a Court. See:

Ezeokonkwo v. Okeke (2002) 5 SCNJ 1 at 20;

Oke v. Atoloye (1985)1 NWLR Pt. 15 page 241;

Fadiora v. Gbadebo (1978) 3 5C 219 at 229.

It is also ciear from the face of the document of the Attah Igala’s “B” Court that the parties were Ocheja of Imere and Ugbamatigbi of Okpe. The cause of action in it was trespass but the document is silent as to the res or subject matter of the dispute. The assertion that it reiates to Imere land in my opinion is speculative.

Both parties were said to be tenants of the Adokpuiu (Appellant’s family). It has not been established that any of the parties to that case has any relationship with the 2nd Respondent in this Appeal.

PW5 who testified on behalf of the Appellant at the trial Court said at page 17 lines 19-21 of the record of Appeal of the likely existence of any relationship between the Plaintiff before the Attah Igala’s “B” Court and the 2nd Respondent in this Appeal thus:

“Ocheja af Imere was our care-taker as (sic) ‘mere. I do not know haw related Ocheja is with Achadu-Imere: Achadu-Imere had no hand in the case between Ocheja and Ugbamatigbi.”

Achadu Imere is the 2nd Respondent in this Appeal. Anene Adejo Adokpulu Aganapoje, the 1″ Respondent in this Appeal who is the beaded chief and head of the Appellant’91s Clan in his testimony under cross’97examination at page 21 said of the relationship between 2’b0’91 Respondent and any of the parties in the decision of Attah Igala’91s “B” Court thus:

“I know Ocheja who had dispute with Ugbamatigbi. He was the grand father af Idakwa Ohiaga. It was Atadu Omakwu who brought Ocheja into Imere land. We have never shared common boundary with him. The 2nd Defendant had never owned the land in question.”

This testimony of Anene Adejoh further confirms that Ocheja of Imere is related to the Appellant’s Clan or family tenant Idakwo Ohioga against whom the 2nd Respondent disputed Imere land and won. The 1st Respondent who claims to be the owner of the land in dispute stood by during the trial while Idakwo Ohioga his tenant fought the battle for the title to the land and lost as disclosed in Exhibit D3.

The Appellant and his family by their own admission have excluded the operation of the plea of estoppel per rem judicatam in respect of the document containing the Attah Igala’s “B” Court decision.

I have earlier said in this Judgment that Learned Counsel for the Appellant was on 24/5/2006 granted leave to tender a document from the bar and that it was only on 11th March 2009 that learned Counsel for the Appellant tendered the document and it was received and marked as Exhibit A by this Court.

The document was admitted in realization of the fact that the issue of exclusion or rejection of the document had not been canvassed before the lower Court. It follows therefore that the submission of the Appellant’s Counsel that the lower Court erred in law in excluding the document or in refusing to accord it the status of res judicatam is misconceived.

The document tendered in this Court from the bar is titled “Result of Investigation in the Land Dispute between Ocheja of Imere and Ugbamatigbi of Okpe.

The document herein referred to as Exhibit ‘A’ is an arbitration proceedings between the same parties as in Attah Igala’s “B” Court document in which the parties were Ocheja of Imere and Ugbamatigbi of Okpe. Exhibit A did not indicate the res or subject matter of the arbitration, It is also a photo-copy of the original document and has also not been certified. The document is a public document and as secondary evidence it must be certified before it can be admissible.

The said Exhibit A bears no relevance to the present case on Appeal. The land to which the Defendant in Exhibit A was said to have trespassed was Ocheja’s land. The land which the Appellant in this case claims is Adokpulu land and which the 2nd Respondent said is Imere land.

Since the combined effect of the provision of Section 97(1)(e) and (2)(c) of the Evidence Act is that secondary evidence of public document can only be admitted in evidence if they are certified true copies and none other, a photo-copy is not therefore admissible as secondary evidence of a public document, See:

Minister of land Western Nigeria v. Dr. N. Azikiwe and Ors. (supra);

Aniforo v. Obilor (supra);

NIDB v. Fembo (supra);

Nzekwu v. Nzekwu (supra),

Exhibit A having been admitted in evidence without certification should be discountenanced and expunged from the record of this Court.

The decision of Attah Igala’s “B” Court and Exhibit A are similar in all material respect and suffer the same fate, Exhibit A is of no material significance to the determination of this Appeal.

The Appellant by his admission had excluded the operation of the plea of estoppel per rem judicatam or any other estoppel for that matter, The Appellant has also failed to show that the 2nd Respondent or his Clan was aware of or privy to any of the two proceedings tendered before the lower Court and in this Court.

The fourth issue is also resolved in favour of the 2nd Respondent.

All the issues formulated by the Appellant having been resolved in favour of the 2nd Respondent, this Appeal fails and it is hereby dismissed, The Appellant has not adduced useful reason why the decision of the lower Court should be set aside,

The decision of the Kogi State High Court in Suit No.ID/35A/99 delivered at Idah on 11th April 2002 is hereby affirmed. N50,000 costs is hereby awarded in favour of the Respondents.

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Other Citations: (2009)LCN/3295(CA)