Nyufam Augustine Bassey Eyo & Ors. V. Ntufam Ojong Okpa & Anor. (2009)
LawGlobal-Hub Lead Judgment Report
JEAN OMOKRI, J.C.A.
This appeal emanated from the judgment of Hon. Justice M. O. Eneji of the High Court of the Cross River State sitting at Akampa, in Suit No: HR/1/92 delivered on 19/5/2008.
The facts of this case are that the parties were living together as one in Old Netim, which they acquired from the Mbarakom people in 1912 for a consideration. Later the present appellants moved from Old Netim to New Netim. Apparently there was no reason why the appellants left Old Netim. There was a court case in 1928 between the parties before the customary court Calabar in 1928 where the court decided that the two communities should live apart without any disturbance. There was another case in 1985 where there was a move to settle the case out of court. That gave rise to a terms of settlement. Another dispute arose again between the parties in 1992. This time it was the respondents who as plaintiffs took out a writ from the registry of the trial court on 5/3/92.
The respondents filed their statement of claim of 42 paragraphs dated 21/4/1992 and filed on 28/4/1992. The respondents at paragraph 42 of the statement of claim, claimed as follows:
- A declaration that by virtue of the plaintiffs being entitled to rents, royalties and whatsoever monies payable to the plaintiff community the defendants for themselves or as representing their community should not interfere or purport to make any claims on behalf of the plaintiff community from its Tenants.
- A declaration on that the Defendant whether individually or collectively are incompetent to demand for accountability from the plaintiff for whatever monies collected by the plaintiff in their capacity as representatives of the plaintiff community.
- A declaration that the exit of the defendant’s community from the plaintiff community in Old Netim village Akamkpa Local Government Area to New Netim village in Odukpani Local Government Area in 1932 put a final stop to whatever claims the Defendant purport to enjoy from the plaintiffs community.
- A declaration that whatever benefit the defendants had hitherto enjoyed from the plaintiff tenant were mere privileges and not right strictly speaking and therefore the plaintiffs have every justification to deprive them of such privileges if they have been abused, misused or seen to be capable of being abused or misused.
- A declaration that the privilege enjoyed by the Defendant Community from the plaintiff community have been so abused to the detriment of the plaintiff Community.
- A declaration that by virtue of the defendants present location in faraway Odukpani Local Government Area of Cross River State, they are not exposed to the everyday hazards faced by the plaintiff community from the plaintiff tenants and therefore have no claims whatsoever as compensation, Royalties or Rents from the plaintiff tenant.
- A declaration that the plaintiff communities are not prepared and willing to condone the mistake of their predecessors by extending any similar privileges extended by them to the defendant to the detriment and neglect of the plaintiff sons, daughters and the entire Old Netim Community.
- A declaration that the letter from the Defendant Solicitors U. A. Uno & Associates of No. 39 Bassey Duke Street Ref. No. UUA/JEA/Vol.1/30/92 dated 1ih February 1992 Captioned “RE: Affairs to Netim Community on it affects the people of New Netim” is of no effect whatsoever but an abuse on the intelligence, tolerance and understanding of the people of Old Netim who have for long been accommodating the defendant for the simple reason that they share a common origin.
- An injunction restraining the defendant either by themselves or through their agent or otherwise from further intermeddling with the affairs of the people of Old Netim as well as from making any obnoxious claims or demands from its various tenants for and as representing the people of Old Netim Community.
The appellants also filed a statement of defence of 27 paragraphs at page 18 – 23 of the record. The respondents on 31/10/2002 filed an amended statement of claim, which is at page 139 – 144 of the record. The appellants filed an amended statement of defence and a counter claim, which is at pages 151 – 157 of the record.
At the hearing of the case, the respondents called 2 witnesses to support their claims. The appellants similarly called two witnesses. At the conclusion of hearing counsel for the parties submitted written addresses. After adopting and relying on their respective addresses, the learned trial Judge in a well considered judgment entered judgment for the respondent on the ground that settlement in Suit No: H/4/85 was decided per incuriam because the judgment of the customary court in Suit 412/28 was still valid and subsisting.
Dissatisfied with the judgment of the trial court, the appellant appealed to this court on five grounds subscribed in the Notice of appeal. The appellants distilled four issues from the five grounds of appeal in their brief of argument dated 8/11/2008 and filed on 10/11/08. They are:
- Whether the learned trial Judge was right in relying on the District Court judgment in Suit No. 412/28in upholding a plea of res judicata in favour of the Plaintiffs/Respondents.
- Whether the learned trial Judge was right in setting aside the consent judgment of Akamkpa High Court in suit No. HK/5/84 and Hk/5/85 (exhibits D & E) thereby tending to over rule the decisions of the Supreme Court in
(a) UKAEBU V. UDOH (1991) 6 NWLR Part 196 P. 127
(b) OGBODIE V. NDINIBE (1992) 6 NWLR Part 245 P. 40.
(c) MOHAMMED V. DAN TATA (2000) 2 SCNQR P. 655.
- Whether the learned trial Judge was right in relying on Administration Boundaries in deciding the right of the parties in land thereby tending to over rule the Decision of the Supreme court in NKUMA V. ODILI & ODILI V. ANENE (2006) 137 LRCN P. 1301.
- Whether the trial Judge properly evaluated the evidence before him in arriving at his decision in the case.
The respondents in their brief dated 10/12/2008 and filed on 11/12/2008 adopted the four issues formulated by the appellants.
Upon being served with the respondent’s brief, the appellants filed an appellants reply brief dated 18/3/2009 and filed on 25/3/2009.
In arguing Issue No.1, the appellants contended that the trial Judge was in error in relying on the District Court Judgment in Suit No. 412/05, admitted as exhibit 2, to grant a plea of res judicata, when the essential elements to sustain the plea were lacking. Appellants further contended that the issues raised and determined in Exhibit 2 were not the same as issues in dispute in the case at the lower court and the present respondents who were the appellants failed to counter claim so they did not have the declaration of title in their favour, because the case of New Netim or plaintiffs in that case was merely dismissed. They relied on Ojah vs. Ogboni (1996) 6 NWLR (Pt. 454) 272 at 298.
On Issue No.2, the appellants referred to page 39 of the record and submitted that the learned trial Judge was in error when he purported to set aside the consent judgment in Suit NO.HK/5/84. It was contended that the consent judgment in Suit No. HK/5/84 was a judgment of the same court of concurrent jurisdiction, therefore the trial court has no power or competence to set it aside.
In respect of Issue No. 3 the appellant argued that by the provision of Section 43 of the 1999 Constitution of the Federal Republic of Nigeria, the residence of the owner of the land does not determine the vested legal right in or over land. However evidence abound that the appellants and the respondents own the land jointly and have been enjoying the rights of usage, management and earning royalties, rents etc together. They relied on the evidence of PW1 at page 302-308 and that of PW2 at pages 323-329 of the record and Nkuma & Odili, Odili vs. Anene (2006) 137 FWLR (P. 1301) which is on all fours with the facts of this case.
On Issue No.4, the appellants submitted that the learned trial Judge never evaluated the evidence led by the parties and therefore violated the fundamental principles of fair trial, which is part and parcel of fair hearing enshrined in our Constitution, particularly Section 36 of the 1999 Constitution. They pointed out that the learned trial Judge did not consider the fact that the people of Old Netim and New Netim jointly own the land in dispute and also that the trial Judge did not consider the exhibits tendered particularly, exhibit A, the land agreement between Netim and Mbarakom people in 1912. They relied on Echi vs. Nnamani (2000) FWLR (Pt. 13) 2159 at 2178 – 2179. Mogaji vs. Odofin (1978) 451 and urged the court to evaluate the evidence and disturb the findings of the trial court. They relied on Akinrove vs. Bello Eviola & ors. (1968) NMLR 92 at 95 and Woluchem & ors vs. Gudi & ors (1981) 5SC 319 at 320 and Thomas vs. Thomas (1949) ALL. FR 382.
For the respondents, it was contended that the appellants were wrong to say that the issues decided in the District court judgment, Exhibit 2, were not the same as in dispute on the case at the trial court. They cited Eke vs. Okwaranya (2001) 12 NWLR (Pt. 726) 181 at 186 and Ibori vs. Agbi (2004) 6 NWLR (Pt. 868) 78 at 85 where the Supreme Court defined the word “issue”. It was contended that in Exhibit 2, particularly, claim number 3 is the same as the claim in the present suit, which gave rise to this appeal. They also referred to pages 143 and 169 to 170 of the record and submitted that the judgment in Exhibit 2 decided the rights of the parties. They referred to Garuba vs. Yahaya (2007) 3 NWLR (Pt.1102) 390 at 391 and SPDC Nig. Ltd vs. Xmfet Ltd. (2006) 16NWLR (Pt. 1004) 189 at 193 and submitted that the judgment. exhibit 2, is valid, subsisting and binding on all parties. It was also contended that a previous favourable judgment can be used as a foundation for an action in trespass as was stated in Archibong vs. Ita (2004) 2 NWLR (Pt. 858) 590 at 605.
The respondent re-iterated the fact that exhibit 2 decided in clear terms that the two villages are separate and they should remain so without each other disturbing another. They concluded on issue No.1 that Exhibit 2, a previous judgment may be pleaded by the respondents as a relevant fact, as issue-estoppel and as weapon of attack as was decided in Ibezim vs. Ndukwe (1992) 1 NWLR (Pt.216) 153 – 157.
On issue No.2, the respondent submitted that the trial court was correct to hold that the judgment was decided per incuriam bearing in mind the existence of the 1928 Judgment in Exhibit 2. They referred to the evidence of PW1, at page 303 lines 5 – 6, 16 – 17 and his evidence under cross-examination at page 307 lines 13 to 14 where he testified that the respondents were in ignorance of the existence of the 1928 Judgment before they contested the suits in Exhibits D and E, therefore they would not have entered into any terms of settlement with the appellants, if they were aware of the Judgment of 1928 at that time. They became aware in 1992.
The respondents pointed out that the appellants did not controvert or deny the evidence of PW1. Therefore the terms of settlement in 1985 on the consent judgment in 1984 were done through ignorance of the existence of the 1928 judgment, which is still subsisting and valid. Therefore, the consent judgment in Suit No.HK/5/85 cannot create estoppel because it was given per incuriam. They relied on Okafor vs. Okonkwo (2002) 17 NWLR (Pt. 796) 262 at 276 and submitted that the trial court was the court that gave the judgment in HK/5/85 and it is her privilege to review same. The appellate court share the same privilege, otherwise there will be two Judgments in respect of the same issue and involving the same parties.
On Issue No.3, it was contended for the respondents that the issues involved in this case has nothing to do with the right of a citizen to own property in any part of the Country as provided under Section 43 of the 1999 Constitution. Rather, the case of the parties is whether New Ntim is still part of Old Netim as to entitle them enjoy the right available to the people of Old Netim.
The respondents referred to Section 77 on the Mines Act, Cap. 226, LFN 1990 and submitted that it is very clear and unambiguous as to who collects the compensation. The respondents are owners and occupiers of the land at Old Netim while the appellants reside in New Netim in Odukpani Local Government Area and they are not affected by the hazards of the exploration by the companies operating there. They concluded that the trial court was right to hold that the Mines Act precluded the appellants from having any right.
On issue No.4, the respondents are of the view that the learned counsel for the appellant erroneously considered evidence of joint acquisition of the land at Old Netim by both Old and New Netim which gave rise to joint ownership. They contended that there was nothing before the lower court to suggest joint acquisition and same was not an issue because the parties agreed that before 1928, there was only one Netim that acquired the land from Mbarakom, but the New Netim on their own abandoned Netim and settled elsewhere called New Netim in Odukpani Local Government Area whereas the Netim in Akamkpa became Old Netim. Relying on the case of Ezekwu vs. Ukachukwu (2004) 17 NWLR (Pt. 902) 227 at 237 the respondent submitted that the trial Judge analyzed the Judgment of 1928 in line with the present action and came to the conclusion he reached and there is evidence before the court to support the conclusion of the trial Judge and it is not the business of the appellate court to substitute its own view for that of the trial court.
Lastly on the issue of the Judge’s comment as to the need for the two communities to dialogue and the possibility of the Old Netim, considering the New Netim, it was submitted that the comment never formed part of the Judges findings, rather it was a comment made after he had granted the respondents case and dismissed the counter claim of the appellants. The judgment of the court is supported by evidence and the judgment is not perverse.
I have carefully perused the issues for determination formulated by the appellants in this appeal, they are concise, succinct and properly married to the grounds of appeal. The respondents adopted the appellants’ issues for determination. In the circumstances I shall adopt and rely on them for the determination of this appeal in this judgment.
I observed that the appellants in their reply brief stated that the law is quite trite that where the respondents have adopted the issues for determination raised by the appellants, the respondents are not entitled to attack the same issues as was done by the counsel to the respondents in their respondents brief in this appeal. The above submission does not represent the law, and it is misconceived and misleading. It is not true or correct that a respondent who adopted the issues raised by the appellant is not entitled to attack same. A respondent’s issue or issues (where the respondent has not cross appealed), must be based on or correlate with the grounds of appeal of the appellant. See Animashaun vs. University College Hospital (1996) 10 NWLR (Pt. 467) 65; Arowolo vs. Akapo (2003) 8 NWLR (Pt.823) 46; Padawa vs. Jatau (2003) 5 NWLR (Pt. 813) 247 and Akinlagun vs. Dshobaja (2006) 12 NWLR (Pt. 993) 60 at 90.
In Iheanacho vs. Ejiogu (1995) 4 NWLR (Pt. 389) 324 Edozie, J.C.A (as he then was) held as follows:
“A respondent who has not cross-appealed cannot formulate issues as it were in nubibus. He can only adopt the issues as formulated by the appellant based on the grounds of appeal before the court or recast them by giving them a slant favourable to the respondent’s point of view but without departing from the complaint raised by the grounds of appeal… It follows from the above decisions of court that the respondents are perfectly in order to adopt the issues formulated by the appellant and proceed to attack same with dexterity.
The traditional role of the respondent is to defend the judgment of the trial court which is in his favour, except where the respondent has filed a cross-appeal or respondents’ notice asking for the judgment of the trial court to be varied on a different ground. I shall now consider the substance or merits of the appeal.
In respect of issue No.1, there are three main issues raised. They are:
(a) That the trial judge was in error in relying on the District Court Judgment in Suit No.412/28 admitted by the trial court as Exhibit 2, to ground a plea res judicata when the essential elements to sustain the plea were lacking.
(b) That the issues raised and determined in Exhibit 2 were not the same as issues in dispute in the case at the lower court.
(c) That the people of Old Netim as defendants in Exhibit 2 having failed or neglected to counter claim did not have any declaration of title in their favour as the case of New Netim as plaintiffs, in that case was merely dismissed.
To bring the points raised into proper perspective, it is necessary to appreciate the meaning of the word “issue”. In Overseas Construction Ltd vs. Creek Enterprises Ltd. (1985) 3 NWLR (Pt. 13) 407, the Supreme Court held:
“When parties to an action have answered one another’s pleadings in such a manner that they have arrived at some material point or matter of fact, affirmed on one side and denied on the other, the parties are said to be at issue, they have joined issue and the question thus raised is called the issue.”
In Eke vs. Okwaranya (2001) 12 NWLR (Pt. 726) 181 at 186. The Supreme Court
gave the meaning of issue as:
“An issue is a disputed point or question to which parties to an action have narrated their several allegation and upon which they desire to obtain a decision of the court.”
See also Ibori vs. Agbi (2004) 6 NWLR (Pt. 868) 78 at 85. The plaintiffs claim in at Suit No. 4/2/28, Exhibit 2, are clearly stated at page 1 and they are as follows:-
Claim 1
Plaintiff claim against the defendant is for the defendant to perform the traditional rites of New Netim with them as their brothers and sisters from be (sic) ancestor.
Claim 2
Is that Ntufam Ewong Ita is the leader of Netim people and not the defendant, Ntufam AchofIta-Akare.
Claim 3
Is that the New Netim is part of Old Netim and Ntufam Enwang Ita and all others should be allowed to enjoy, to hunt, to fish, to farm in their ancestors land at Old Netim.”
The gist of the respondents’ claim before the trial court, which are set out in this Judgment and also contained in page 143 and the counter claim of the appellants at pages 169 and 170 of the record, is also whether New Netim is part of Old Netim and therefore they are entitled to the rights accruable to the people of Old Netim. The issues in Suit No. 412/28, are virtually the same as in Suit No.HK/5/85 and Suit No. HK/1/92. In the circumstances, I am of the respectful but firm view that the issues in all three suits are the same and the trial Judge was perfectly correct when he relied on the Judgment of the District or Customary Court, Calabar in Suit No. 412/28, Exhibit 2, to uphold a plea of res judicta. It should be noted that it is not the form or the language employed in an action that is important but the substance of the claim is the dominant factor.
It is well settled law that until a decision of a court is appealed against and set aside on appeal, the decision remains valid and subsisting and binding on the parties, therefore Suit No. 412/28 as contained in Exhibit 2 is valid, subsisting and binding on the parties. A subsisting decision of a court operates as estoppel. See SPDC (Nig) Ltd vs. X M. Fed. Ltd. (2006) 16 NWLR (Pt. 1004) 189, at 199 and 203.
It is significant to state here that estoppel per rem judicatam or estoppel by record arises where an issue of fact has been judicially determined in a final manner between the parties or their privies by a court or tribunal having jurisdiction in the matter and the same issue comes directly in question in subsequent proceedings between the parties or their privies.
The principle of res judicatam effectively precludes a party to an action or his privies from disputing against the other party, in any subsequent suit, matters which had been adjudicated upon previously by a court of competent jurisdiction between him and his adversary involving the same issues. See Ajiboye vs. Ishola (2006) 13 NWLR (Pt.998) 628 at 643 and Okukuje vs. Akwido (2001) 3 NWLR (Pt.700) 261.
The ingredients of the doctrine of estoppel per rem judicatam are that:
(a) the parties
(b) the issues; and
(c) the subject matter in the previous action;
must be the same as that in the action in which the plea is raised. Once these ingredients are established, the previous judgment estops the plaintiff from making any claim contrary to the decision in the previous case. See Ezeanyi vs. Ekeke (1995) 3 NWLR (Pt. 388) 142 and Dokubo vs Omoni (1999) 8 NWLR (Pt. 616) 647. All the conditions listed above are present in the instant case on appeal. The essential elements to sustain the plea of res judicata are eminently present. So the trial Judge was correct to rely on Suit No. 412/28 to found a plea of res judicata.
The judgment in Exhibit 2 was not a declaration of title to land. This is glaringly clear from the claims and counter-claim. The central issue in all the suits, that is Suit No. 412/28; Suit No.HK/5/85 and Suit No. HK1/92 is to determine whether the people in New Netim are still part of Old Netim and therefore they can share in the revenue payable by the many companies exploiting mineral resources in Old Netim. The question of declaration of the title does not arise at all. The case of Ojah vs. Ogboni (supra) is distinguishable from facts in the instant case on appeal. There is no claim for declaration of title or ownership of the land in this case. The judgment in exhibit 2, apart from dismissing the case made consequential findings, which finally settled the right of the parties. There being no appeal against the judgment in Exhibit 2, the said judgment is valid, subsisting and binding on all the parties, including the present appellants.
Lastly, it is proper for a party to a law suit who has a previous judgment in his favour to use such judgment as a foundation for an action in trespass or as a foundation for a fresh suit in which he is claiming a relief in addition to what was granted in his favour in the previous suit. See Archibong vs. Ita (supra). In Ibezim vs. Ndukwe (supra) the court held that a previous judgment may be pleaded by a plaintiff as a relevant fact, as issue estoppel and a weapon of attack. That is exactly what the respondent did at the court below. I see no merit in issue No. 1 and I resolve it against the appellants.
On issue No.2, the grouse of the appellants is that the trial court erred in setting aside the consent judgment of Eka, J in Suit No. HK/5/85, in Exhibits D and E on the ground that it was given per incuriam.
It should be noted that the parties in this appeal did not dispute the existence of Suit No. 412/28 and the judgment and orders made therein. It is clear that there was no appeal against the said judgment. So Suit No. 412/28 is still valid, subsisting and binding on all the parties in this appeal because Suit No. 412/28, Exhibit 2, was prosecuted in a representative capacity, to wit:
Ntufam Ewon Ita
(representing the Chiefs and the people of New Netim)
VS.
Ntufam Achot Ita-Akare
(representing the Chiefs and the people of Old Netim )
Now, if Suit No. 412/28 is still valid, subsisting and binding on all the parties, there can be no meaningful or legal or competent suit on the same issue concluded in Suit No. 412/28.
If that is the case, then Suit No. HK/5/85 and the purported consent judgment were given per incuriam and it cannot be a judicial precedent and it cannot create estoppel. There can be no two judgments in respect of the same issue involving the same parties. In the circumstances the learned trial judge was right to set aside the consent judgment in Suit No. HK/5/85. See Okafor vs Okonkwo (supra); Uku and others vs. Okumagba (1974) 1 ALL NLR (Pt. 1) page 475; Obimonure VS. Erinosho & anor. (1966) 1 ALL NLR 250; Adegoke Motors Ltd. vs. Adesanva (1989) 3 NWLR (Pt. 109) 250 at 273.
The appellants contended that the trial Judge was wrong to set aside the consent judgment in Suit No. HK/5/85 because it was a decision of a court of concurrent jurisdiction. A judgment which was entered per incuriam is not enforceable therefore it is null and void and of no effect whatsoever and it can be set aside, ex debito justitiac, by the Court which made the Order or by a Court of concurrent jurisdictiam. See: O(fodile vs. Egwuatu (2006) 1NWLR (Pt. 961) 421 at 432.
In L.S.D.P.C. vs. Adeyemi Bero (2005) 8 NWLR (Pt. 927), 330 at 353, this court held that:
A court has inherent jurisdiction to set aside its own null and void decision or order, and also the null and void judgment of a court of co-ordinate jurisdiction. In setting aside a void order or judgment it is irrelevant which Judge, be it he that issued the alleged void order or another Judge of the court of concurrent jurisdiction that set aside the order.
The order being null and void can be set aside by the Judge who made it or another Judge of the same court through a judicial pronouncement without the necessity of an appeal. See: Koden vs. Shidon (1998) 10 NWLR (Pt.571) 662; Akporue vs. Okei (1973) 12 SC 137 Odofin Olabanji (1996) 3 NWLR (Pt.435) 126. The above issue has been very well settled in Sken Consult (Nig) Ltd. vs. Ukev and anor. (1981) NSCC vol. 12, 1 of 17 where the Supreme Court while dealing with a similar situation held thus:
“It is the High Court from which the order complained of emanates that can and must set it aside, not necessarily the Judge of that High Court who originally made the order.
In the circumstance the trial Judge was perfectly in order to set aside the decision of the High Court in Suit No. HK/5/85 since it is not necessarily the very particular Judge who made the order that must set it aside, it is the Court and not the individual Judge. So any Judge of that same High Court is entitled to set aside any judgment or order made per incuriam. If the judgment is valid it can only be set aside on appeal. But that is not the situation here. I therefore resolve issue No. 2 against the appellant.
On issue No.3, it is the contention of the appellants that the trial Judge was in error to have decided the issue contrary to the provisions of Section 43 of the 1999 Constitution, which gives every Nigerian citizen the right to own immovable property in any part of the country. They referred to Nkuma vs. Odili (supra). I have carefully read the judgment in Nkuma vs. Odili (supra) but it appears that the facts of that case are not on all fours with the case now on appeal. The case Nkuma vs. Odili (supra) dealt with ownership of land and who was entitled to the compensation paid by Agip Oil Company for its Oil Location on the land. The facts of the case are quite distinguishable from the facts in this cases and therefore it is not applicable here. It will be recalled that the question of the ownership of land had been concluded in Suit No. 412/28, Exhibit 2. That judgment is still valid, subsisting and it binds all the parties, regard being had to the fact that there was no appeal against the judgment. Therefore the issue of ownership and who is entitled to the land cannot be relitigated.
At this junction, it is reasonable and necessary that I reproduce the findings of the Customary Court, Court in Suit No. 412/28, Exhibit 2, herein below:
Judgment
The plaintiff claims fails. The Court finds that the plaintiff on their own left their brothers and sisters at Old Netim without quarrel. They were not sent away by force and so they cannot call the Old Netim people to follow them. The court also find that claim 2 fail because every village must have his own Chief or Ntufam as is done in every place and not for one to come and be head in another’s village. So therefore Ntufam Achol Ita-Ekare is the Head of Old village as Ntufam.
Enong Ita is the head of New Netim village. The court finds unanimously that all the parties should live apart as they have decided without any village disturbing another whether to fish in another’s water or farm in another land or to hunt in another forest. Civil case No. 412/28 is dismissed.
As brother and sisters of one ancestors we make no orders as to cost.”
So long as Suit No. 412/28 is still valid and subsisting and it binds all the parties and following the principles of estoppel per rem judicatam, the appellants are estopped from litigating the same issue again. See SDPC (Nig) Ltd. vs. X M. Fed. Ltd. (supra).
The rule of res judicata is derived from the maxim of “nemo debet bis vexar. pro-eadem causa”. It is the “Cause” that matters and a plaintiff cannot by formulating a fresh claim, re-litigate the same cause. That is why Section 54 of the Evidence Act does not speak of the claim, but of the facts directly in issue in the previous Suit. See Wema Bank Plc vs. Abiodun (2006) 9 (Pt. 984) 1 at 34.
I now come to the provision of Section 43 of the 1999 Constitution. It provides:
“Subject to the provisions of the provisions of this Constitution, every citizen of Nigeria shall have the right to acquire and own immovable properly any where in Nigeria”.
A cursory glance at Section 43 of the 1999 Constitution reveal that it has no relevance to the facts of this case. It is obvious that the appellant’s case is not predicated on the right to acquire and own immovable property in Old Netim, it is whether New Netim is a part of Old Netim so as to qualify them to share in the revenue derivable from exploration of minerals at Old Netim. The submission of the appellants is misconceived.
The appellants also contended that the learned trial Judge applied the provisions of section 77 of the Mines Act, Cap 226 Law of Federal Republic of Nigeria without first allowing the counsel for the parties to address him on it.
I have given this matter a most anxious consideration because the appellants in their brief very vehemently attacked the learned trial Judge’s use and reliance on the provision of Section 77 of the Mines Act. They relied on Ogiamen vs. Ogiamen (supra); Onwunalu & ors vs. Osademe (supra) and submitted that the learned trial Judge failed or neglected to invite the counsel for the parties to address the court on the point before using the point for his decision.
However, I observed that learned counsel for the respondents actually raised the issue of the applicability of Section 77 of the Mines Act at page 376 of the record, in his submission. At page 377 of the record, learned counsel for the appellant (then defendants) in his reply, by way of rejoinder, did not address the issue. The appellants were obliged to reply or at lease make their views known on the relevance of section 77 of the Mines Act, to the case. Not having done so, the appellants must be deemed to have accepted the respondents’ submission on the provision.
In the circumstances the appellants cannot blame the trial Judge. It is therefore not correct that the trial court suo motu applied the provisions of Section 77 of the Mines Act. The submission of the learned counsel is speculative and misconceived. I see no merit in issue No. 3 and I resolve same against the appellant.
On issue No.4, the appellants complaint is that the trial Judge did not evaluate the evidence adduced properly. The crux of the matter here is not so much on evaluation of evidence or appraisal of facts but it is whether in the light of Exhibit 2, the judgment in Suit No. 412/28, which was delivered by the Customary or District Court, Calabar in 1928, can the consent judgment of the High Court, Akamkpa in Suit No. HK/5/85, be upheld or sustained having been made per incuriam? In this regard the evidence of PW1, Mr. Augustine Eyo Ambor becomes relevant. He testified at page 303, lines 5-6 as follows:
“It was in 1992 that we became aware of the judgment of 1928.”
On the same page 303, line 10-17, PW1 stated that: “The judgment of 1928 has not been abandoned by us from Old Netim. It is still subsisting.”
Under cross-examination he confirmed his evidence in Chief when he said at page 307 lines 13 – 14 of the record that:
“I am aware of No. HK/5/85. But the terms of settlement drawn thereto was in ignorance of the judgment of the Calabar Customary Court delivered in 1928.”
PW1 also stated at page 307 lines 4-6 that:
“I was the only one from Old Netim in Suits contained in Exhibit paragraph F because I was not aware of the 1928 judgment in favour of Old Netim.”
From the evidence of the respondent’s witnesses, it is very obvious that the proceedings in Suit No. HK/5/85 were done in ignorance of the valid and subsisting judgment of Suit No. 412/28. The purported consent judgment in suit No.HK/5/85 were done out of ignorance and given per incuriam. Therefore it can neither be a judicial precedent nor create estoppel.
The appellants adduced no evidence to challenge or contradict the evidence of the respondent in respect of Suit No. 412/28. DW1 and DW2 did not even mention or say anything relating to Suit No. 412/28 and more importantly they did not deny the existence of Suit No. 412/28, that is, Exhibit 2. The evidence of DWS 1 and 2 that the land in dispute is jointly owned by the people of Old Netim and New Netim, has no credibility or probative value in view of the judgment in Suit No. 412/28, Exhibit 2.
Where a trial court unquestionably evaluates the evidence and appraises the facts of a case, it is not the business of an appellate court to substitute its own views for the views of the trial court. Thus, if there is any evidence to support a particular conclusion of the a trial court, an appellate court which could have come to a different conclusion should restrain itself and respect the conclusion of the trial court that saw and heard the witness. In the instant case on appeal, the findings of the trial court were amply supported by the evidence on record. See Enekwu vs. Uzochukwu (2004) 17 NWLR (Pt. 902) 227 at 237; Ezanwaji vs. UNN (2006) 5 NWLR (Pt. 967) 325, Admin-Gen, Delta State vs. Ogogo (2006) 2 NWLR (Pt.964) 366 and Ilori vs. Tella (2006) 18 NWLR (Pt.1011) 207.
Lastly, the appellants attacked the comment of the learned trial Judge at page 390 lines 1 – 17 of the record.
To begin with it is necessary to examine what the learned trial Judge said:
“All I have said so far is from the angle of Law per se. But law consists of equity. It is therefore on equitable grounds that I will offer suggestion, not by decree or order, but by prescription. That is to say, since the plaintiffs (Old Netim people) are the defendants (New Netim people) are of the same stock and have never had any physical and violent confrontation (which I pray against) it will be appropriate for the two communities to dialogue together. They should do so frequently and continuously. No man is an island.
Let not the aggrandizement of controlling resources and enjoyment of revenue deriving therefrom, blind Old Netim people against carrying their brothers along. For empires will rise and empires will fall, Resources will abound resources will dwindle. Who knows whether tomorrow, by Divine providence, it may please God to cause a New Netim son or daughter to become a Governor, Minister, a Senate President, Vice President or even the President of this Great country? Will Old Netim people not have a need for such a son or daughter? Let it be food for thought for the plaintiffs.”
The above comment is what the appellants submitted is tantamount to installing injustice in the temple of justice. The comment never formed part of the Learned trial Judge’s findings, rather it was a comment made after he had granted the respondent’s case and dismissed the appellants’ counter claim.
The above comment is not the reason for the judgment of the trial court, It is therefore not appealable. Furthermore, the comment of the learned trial Judge was a mere suggestion designed to promote reconciliation, so that there will be peace between Old Netim and New Netim. Bearing the above in mind, the attack on the Judge’s comment is unjustified, unbecoming and unfortunate.
The comment is well intended for the benefit of both communities. There is a legal and moral duty on the courts to promote peaceful resolution of issues between the parties. The court has a bounding duty under High Court Law to promote amicable settlement between parties. I cannot see any wrong that the learned trial Judge did to warrant such a discourteous remark.
A comment or statement of the court, which is not necessary for the determination of the issues joined in the parties’ pleadings, is an obiter dictum. It has no binding authority and cannot be subject of an appeal. See: Wilson vs. Osin (1998) 4 NWLR (Pt. 88) 324; Buhari vs. Obasanjo (2005) 13 NWLR (Pt. 941) 1; Saude vs Abdullahi ( 1989) 4 NWLR (Pt. 116) 387; Ngige vs. Obi (2006) 14 NWLR (Pt. 979).
The word ‘Obiter’ simply means in passing, incidental or cursory. See: Mohammed vs. Lawal (2006) 9 NWLR (Pt. 985) 400.
On the other hand, Ratio decidendi represents the reasoning or principle or ground upon which a case is decided.
An appeal is usually made against the “Ratio Decidendi” and not the Obiter dictum of the court. Grounds of appeal and their particulars must relate to the ratio decidendi of a lower court. The ground of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision. See Nasiru VS. Bindawa (2006) 1 NWLR (Pt. 961) 365 at 372; Saraki vs. Kotoye (1992) 9 NWLR (Pt. 264) 156.
I see no merit in issue No. 4 and I therefore resolve it against the appellants. Having resolved Issues Nos. 1, 2, 3 and 4 against the appellants, it follows that the appeal is bereft of any substance and it deserves to be dismissed.
Accordingly, this appeal be and is hereby dismissed. The judgment of Justice M. O. Eneji is hereby affirmed. Cost of N20,000.00 to the respondents.
Other Citations: (2009)LCN/3505(CA)
