Adetutu Olanibi & Ors V. Cabe Ohara & Anor (2005)
LawGlobal-Hub Lead Judgment Report
AUGIE, J.C.A.
The action, which is the subject matter of this appeal, originated from the Iwara Grade C Customary Court of Osun State, wherein the (deceased) respondent as original plaintiff claimed as follows against the appellants –
“The plaintiffs claim against the defendants jointly and severally is for declaration of title to a piece of farmland, situate, lying and being at Igbo Lomofe Farm via Iwikun in Atakumosa Local Government Area. The plaintiff is also claiming the sum of N200.00 from the 3rd defendant being general damages for trespass into the aid farmland and thereby damages (sic) some cocoa and kola trees on the said farmland. The plaintiff is also seeking for an injunction order restraining the defendants, their agents, wives or servants from further entering into the said farmland pending the determination of the case before the court. The said farmland is bounded as follows-
On the 1st side by Degunduro’s farmland
On the 2nd side by Awikun Chieftaincy farmland
On the 3rd side by Iwara people’s farmland
On the 4th side by Jojo’s farmland”.
This appeal centers on the issue of res Judicata or issue estoppel and it will be necessary to set out the background facts of the case in some detail. It has been the appellants’ contention from day one that there was litigation over the land in dispute between the appellants, Awikun family and the Iwikun Community of which the deceased respondent was a member, and who they argued gave evidence in the earlier suit No. 35/65 between Chief Geolge Adekile, representing the Aribagbeyawo family, Iwukun and Jacob Ademuyiwa representing Iwikun Community. The Judgment in the said suit No. 35/65 and the judgments in suit No. A2/67 & HOS/28A/67, which were the decisions of the appellate court in suit No. 35/65 were in evidence, and therein the High Court sitting as appellate court held as follows –
“The members of the Iwikun Community who farm on the land in dispute must realize that the owners of the land are the descendants of Aribagbeyawo Ekemode Opakun and lalubi” (Italics mine)
At the Iwara Grade C Customary Court, three witnesses testified for the plaintiffs, including the deceased respondent. During cross-examination by the 1st appellant herein, who was 1st defendant, she replied as follows –
B “No I did not witness any case before Ogunseitan. When the Iwikun Community and you were fighting on this farmland. Yes Ogunseitan came to me to ask from me whether my father was paying and (sic) isakole to anybody but I explained that nobody my father or my grandfather was paying any isakole for out of this people (sic) because my father is the owner of this land in dispute. The boundary of this farmland in dispute was marked with Peregun trees and water. Nobody sued me on this farmland in dispute to court”.
The 3 appellants as defendants and 1 other witness testified at the Customary Court. The Customary Court thought it fit to visit the locus in quo, and thereafter delivered judgment on the 19th April 1988, wherein it held –
“This court has carefully gone through the evidence of E both parties and their witnesses and following are observed –
(1) The boundary of the current case instituted by the plaintiff is quite different from the one instituted by the defendants against the Iwikun Community.
(6) The first defendant said that the plaintiff had no common boundary with the Dagunduro but the 2nd defendant confirmed that the kolanut plantation of the plaintiff is bounded by Dagunduro’s farmland.
(7) During the land inspection, we all saw the crops planted by the plaintiff’s grandfather at Igbo Lomofe and ‘the defendants confirmed this, which was also confirmed by the defendants’ friend who was interviewed as an independent witness.
(8) The three defendants confirmed before this court that none of the Awikun of Iwikun had ever received isakole from the plaintiff’s grandfather which automatically confirms that the plaintiff’s great grandfather was given the land by Owa Aponlese as stated by the plaintiff and none of the defendants stated that he knows Fagbemi the great grandfather of the plaintiff, they are only talking of his son Oguntunsin the plaintiff’s grandfather, this shows that they were just saying that they were told because during cross-examination from the plaintiff none of the defendants mentioned the name of Fagbemi, the great grandfather of the plaintiff and the plaintiff is the eldest person of both parties who is supposed to know better.
(9) The boundaries of the farm of the current case is quite different from the one before the court because the farmland of the current case is bounded as follows –
On the 1st side by Dagunduro’s farm,
On the 2nd side by Awikun Chieftaincy farmland,
On the 3rd side by Iwara’s farmland, and
On the 4th side by Jojo’s farmland
While the case before Iwikun Community is bounded as follows-
On the 1st side by Loja Odo-odo’s land,
On the 2nd side by Irode and Igigun’s farmland,
On the top by Agbigbon’s farmland, and
On the bottom by Awikun Chieftaincy farmland
We believe that the plaintiff’s farmland wanted to be snatched by the defendants mainly because she was a witness in respect of the case between the defendants’ family and the Iwikun Community and she was then in the Community’s side. This court also believes that the defendants want to use the advantage of lack of male issue of the plaintiff rather to snatch the farmland away from her (plaintiff) because during the inspection it was obviously clear that the plaintiff’s father’s farmland at Igbo Lomofe was quite different from that of Iwikun Chieftaincy farmland and the defendants confirmed that the crops thereon belonged to the plaintiff’s father….the plaintiff has got the legal advantage of long occupation on the farmland for over two hundred years so much that it was the great grandfather of the plaintiff who planted the crops on the land in dispute….
In conclusion, the plaintiff had established her case against the defendants, that she is the bona fide owner of the farmland in dispute. Finally this court holds that the plaintiff has legal justification on land (sic) to sue the defendants for declaration of title to the farmland. Therefore the declaration of title to the farmland is therefore granted by this court with N50.00 cost …” (Italics mine)
Dissatisfied with the above decision of the Iwara Grade C Customary Court, the appellants herein appealed to the Senior Magistrate’s Court, Ilesa, which examined the case for the parties and came to the following conclusion –
“In the final analysis, it is my opinion that the lower court came to the correct conclusion in this case. I understand the lower court to be saying that the plaintiff and her family has exclusive right to use the land in question and that they are entitled to a customary right of occupancy thereof. I will not apply strict rules to the conclusion of the court but will construe it in the light of the fact that they are laymen. Although the lower court made some mistakes in the evaluation of the evidence before them it has not occasioned miscarriage of justice. In the circumstances, this appeal fails. It is dismissed”.
Still dissatisfied, the appellants appealed to the High Court, Ilesa, which reviewed this case vis-a-vis the earlier suit No. 35/65 and concluded thus –
“I have looked at the form and substance of the cases in exhibit “A” and the instant case and I am of the view that the two cases manifest striking differences for a plea of res judicata to succeed. See … It has been said that estoppel, by its very nature, is so important, so conclusive, that the party who it affects is not allowed to plead against it or adduce evidence to contradict it.
See … The respondent’s evidence at the inspection that “both parties are mine” (sic) is consistent with the circumstances of the possessory right of the respondent.
It is therefore erroneous to argue that she stood by, while suit No. C35/65 was being tried. See … Furthermore, a declaration granted by a trial judge is binding only between the parties and those who identified themselves in their battle of ownership. It is not binding on those who are not parties or who never lent support to any of them. See … By and large the parties, subject matter and issues are not the same. In view of the above-stated reasons, I am of the view that the doctrine of res judicata is inapplicable. So also is the doctrine of issue estoppel by standing by…. Having regard to this new issue of res judicata, which I have resolved in favour of the respondent, I am unable to find anything that will enable me to interfere with the concurrent findings of fact of the two lower courts. See … On the whole, the appeal fails and is accordingly dismissed”.
Further dissatisfied with the decision of the Ilesa High Court, the appellants filed a notice of appeal with 2 grounds of appeal in this court. They are –
(1) The learned High Court erred in law in upholding the opinion of the learned Senior Magistrate that the word “descendants” seemed to be broad enough to embrace every relation by blood or marriage of Aribagbeyawo.
(2) The learned High Court erred in law in holding that the doctrines of res judicata and estoppel are not applicable to this case.
In line with the rules of this court, briefs of arguments were duly filed and exchanged by the parties, and in the appellants’ brief prepared by N. O. O. Oke, Esq., the following issue was formulated as arising for determination –
“Whether the principles of res judicata, issue estoppel are applicable in this case, and if they are whether the jurisdictions of the court were not ousted to entertain the case of the original plaintiff/respondent”.
In their brief settled by E. Adeyeye Adelekun & Co.,the respondents adopted the issue as formulated by the appellants and submitted that the appellants,having formulated only an issue from ground (2), are presumed to have abandoned ground (1) of their grounds of appeal. I agree.
For a ground of appeal to be relevant, an issue must be raised from it, and where no issue is raised from or predicated on a ground of appeal, it is deemed abandoned and liable to be struck out – see Ibiyemi v. F.B.N. Plc (2003) 17NWLR (Pt. 848) 196, & Dahiru v. Kamale (2005) 9 NWLR (Pt. 929) 8. In this case, the appellants’ ground (1) is deemed abandoned and is therefore struck out.
On the sole issue for determination, the appellants submitted that it is a trite principle that where a cause of action in a present suit has been determined in a previous action between the same parties that cause of action becomes merged in that judgment, and it is rule of public policy that no one shall be vexed twice on the same ground or for one and the same cause of action on the same issues, citing Adomba v. Odiese (1990) 1 NWLR (Pt. 125) 165, Omokhafe v. Esekhomo (1993) 8 NWLR (Pt. 309) 58, Yoye v. Olubode (1974) 10 S.C 209. It was further submitted that for a plea of estoppel per rem judicatum to succeed, the party relying on it must establish that –
a) The parties or their privies are the same, that is to say, the parties involved in both the previous and present proceedings are the same;
b) The claim or the issue in dispute on both the previous and present action are the same;
c) The res that is to say, the subject matter of the litigation in the two cases is the same; and
d) The decision relied upon to support the plea must be valid, subsisting and final, citing Adigun v. Governor of Osun State (1995) 3 NWLR (Pt. 385) 513, Balogun v. Adejobi (1995) 2 NWLR (Pt. 376) 131, & Oshodi v. Eyifunmi (2000) 13 NWLR (Pt. 684) 298.
It is the appellants’ contention that the issues in suit No. 35/65 are the same as this case; that the claim of the plaintiff in suit No. 35/65 was for”
Declaration of ownership to a piece of farmland situated at Iwikun known and called Ulumu farmland that is bounded as follows –
On the right by Chief Loja Odo’s land,
On the left side by Chief Arode and Igigun’s farmland.
On the top by Agbigbon’s farmland,
On the bottom by Chief Awikun Chieftaincy farmland …”
And in the suit, the subject matter of this appeal, the original plaintiff claimed –
“The plaintiffs claim against the defendants jointly and severally is for declaration of title to a piece of farmland, situate, lying and being at Igbo Lomofe Farm via Iwikun in Atakumosa Loca1 Government Area.
The said farmland is bounded as follows –
On the 1st side by Dagunduro’s farm,
On the 2nd side by Awikun Chieftaincy farmland,
On the 3rd side by Iwara’s people’s farmland, and
On the 4th side by Jojo’s farmland”
It was further submitted that parties are not ad idem as to whether the subject matter of the present suits are the same; that the appellants had contended that the farm1and in dispute fa11swithin the parcel of Ulumu farmland litigated upon in suit No. 35/65 while the respondents contended that the present farmland did not fall within that parcel of Ulumu farmland; that the Customary Court found that the land in the present suit is not the same with the land litigated upon in suit No. 35/65; that on appeal, the Senior Magistrate Court reversed the conclusion of the trial Customary Court and found that the land, the subject matter of the present suit forms part of the land litigated upon in suit No. 35/65; and that there has been no appeal against the said finding of the Senior Magistrate Court, therefore it is deemed to be correct, citing Phoenix Motors Ltd. v. Ojewumi (1992) 6 NWLR (Pt. 248) 501. The court was therefore urged to hold that the subject matter in the actions are the same. As to the parties, the appellants submitted that it is an accepted fact that the appellants are descendants of Aribagbeyawo of Iwikun Chieftaincy family who filed suit No. 35/65 against the Iwikun family; that a party who lives in Iwikun and who does not belong to the Iwikun Chieftaincy family must necessarily be a member of Iwikun Community, therefore the deceased respondent was a member of the Iwikun Community.
The appellants’ argument is that being a member of the Iwikun Community, the deceased respondent is bound by the result of suit No. 35/65 and HOS/28A/67 wherein it was adduced that Ulumu farmland belonged to the appellants Iwukun Chieftaincy family, which means that the parties in this suit are the same. On the finality of the decision, the appe11ants argued that the judgments in suit No. 35/65, suit No. A2/67 and HOS/28A/67 show that they are final decisions on the issue of Ulumu farmland; that those decisions have not been set aside, consequently, the ingredients of estoppel have been satisfied, which are applicable to this case to deprive the courts below of the jurisdiction over the claim of the deceased respondent, as same is caught by the principle of res judicata, citing Oshodi v. Eyiwunmi (supra).
The respondents however argued that the deceased respondent’s claim, boundaries and name of the farm in dispute in this case is different from those in suit No. 35/65, and that the land inspection carried out by the trial Customary Court clearly showed that there is a difference between the two farmlands. Furthermore, that the parties are different and the deceased respondent was neither a party nor privy to the said suit No. 35/65 which was decided by the Oshogbo High Court; that she was not a witness as listed on page 115 of the record of proceedings, and therefore could not be bound by the judgments in 35/65, A2/67 and HOS/28A/67 as she could only be bound as privy if she falls within one of the three categories classified in Jacob Oyerogba & Am: v. Egbewole Olaopa (1998) 12 SCNJ 115, (1998) 13 NWLR (Pt. 583) 509 thus –
“In Coker & Ors v. V. Sanyaolu (1976) 9 – 10 SC 203, this court considered the terminology “privies” in relation to the doctrine of res judicata and classified them into three categories –
- Privies in blood
- Privies in law (as testator and executor intestate and administration) and
- Privies in estate (as vendor and purchaser)”
Adone v. Ikebudu (2001) 7 SCNJ 513 @ 534; (2001) 14 NWLR (Pt. 733) 385 per S. U. Gnu, JSC also cited.
The court was also referred to the following cases – Adesina v. Commissioner (1996) 4 SCNJ 112 @ 119; Fadiora v. Gbadebo
(1978) 3 SC 219 @ 229, Adone v. Ikebudu (supra), Yaya Adigun v. The Governor of Osun State (supra), Ibenye v. Agwu (1998) 9 SCNJ 1 @ 16; (1998) 11 NWLR (Pt. 574) 372.
It is the respondents’ submission that the doctrine of res judicata will operate only where it is shown that the parties, issues and subject matter are the same as in the previous case as those in the action in which the plea is raised, and that the lower High Court was right to conclude as it did that the doctrine of resjudicata and issue estoppel are not applicable to the case at hand.
Now, this appeal originated from a Customary Court, and in considering appeals from Customary Courts, an appellate court is required to examine the entire records as men of common sense and not as lawyers trained in all the technical details of the rules of evidence, procedure and substantive law. It is expected to ask itself whether for lack of evidence or for any other reason, there was likely to have occurred a miscarriage of justice in the Customary Court; or whether the decision of the Customary Court is repugnant to natural justice or morality or inconsistent with any of the provisions of any law binding on the Customary Court. In other words, appellate courts are enjoined to look at the substance rather than the form when considering the judgment of a Customary Court – see Ekong v. Udo (2002) 16 NWLR (Pt. 792) 1, & Okeke v. President & Members of Customary Court, Mapo (2001) 11 NWLR (Pt. 725) 507 at 514 where this court explained that –
“The justification of the above position is not far fetched.
This is because the Customary Courts are required to adopt the simplest procedures in dealing with cases before them. For example, pleadings are never filed in such courts. Similarly, strict rules are not followed in many cases before them”. (Italics mine)
In this case, the Iwara Customary Court found as a fact, inter alia that –
“The boundary of the current case instituted by the plaintiff is quite different from the one instituted by the defendants against the Iwikun Community”
(i.e. in suit No. 35/65). I hasten to add that the Customary Court made the finding after a visit to the locus in quo. As the Supreme Court held in Orugbo v. Una (2002) 16 NWLR (Pt. 792) 175 @ 205, the major essence of inspection of locus is to bring to the fore the evidence of both parties without bias. It is a forum to allow parties to show important boundaries and landmarks to enable the court decide the issue or issues in dispute.
The Supreme Court further held as follows @ p. 206 –
“Where parties are given equal opportunity at the locus to show boundaries and landmarks, show other evidence in their favour, an appellate court will not throw out the findings of the trial court, particularly of a Customary Court merely because it failed to comply with technicalities here and there relating to the inspection of the locus. An appellate court will however interfere where the parties are not given equal opportunity to exhibit or showcase their matter by way of evidence as pleaded by them. In that regard, the principles of fair hearing will be hurt and an appellate court will nullify the proceedings” (Italics mine)
What is the situation in this case vis-a-vis suit No. 35/65? The appellants alleged that the deceased respondent was bound by the judgment in suit No. 35/65 because she gave evidence for the Iwikun Community in that case. The respondents however argued that the deceased respondent was not a witness in that case, and was not so listed amongst the witnesses therein. This is true, the parties’ witnesses in suit No. 35/65 are listed on page 115 of the record of proceedings and the deceased respondent’s name is not there. What the record shows is that after hearing the witnesses of both parties listed on page 115, the Iwara Grade B Customary Court with J. O. Ogunseitan as President moved “to Iwikun to inspect Iwikun Farmland now in dispute” on the 4th of November 1966, and the deceased respondent was questioned as an independent witness. The entry at pages 131 – 132 of the record reads –
“The team turned to Iwikun village to check up from the granddaughter of Chief Balomo mentioned in absentia on the farmland. Juliana Orimogunje (F) an independent witness, sworn on the Bible stated in Yoruba. Both parties are nice. My late grandfather had a farm on the farmland in dispute. He and his son, i.e. my father Emmanuel Wenda paid no ishakole to them.
When the crops of their farm were due to be harvested, the Iwikun Community placed a mark on the farm, by which they warned me not to harvest the crops. I subsequently interceded and they allowed me to do this.
I have been in peaceful occupation of the farm. My father died 18 years ago and I have not been paying ishakole on the farmland”.
In her evidence in this case, the deceased respondent explained as follows –
Yes Ogunseitan came to me to ask from me whether my father was paying and (sic) isakole to anybody but I explained that nobody my father or my grandfather was paying any isakole for out of this people (sic) because my father is the owner of this land in dispute”.
The defence of res judicata means that the subject matter now being disputed had been a subject matter of an earlier litigation in which the parties were the same and a final judgment as opposed to a mere interlocutory decision had been given before a competent court duly constituted. This denotes that the party, that is invariably the defendant who seeks to have the case dismissed or struck out must convince the court by cogent facts that the matter before the trial court had been determined finally before in an earlier dispute. He has the onerous duty to marshal facts that would convince the court that the new action instituted by the plaintiff is not merely a waste of time of the court but equally an abuse of the process of court.
This is because estoppel per rem judicatum is a rule of evidence. In other words, the defendant is asking the court to stop or discontinue the trial of the case before it because it had been determined before and a final judgment pronounced – see Bruce-Akwumngio v. Harry (2001) 11 NWLR (Pt. 723) 88, & Eze v. Nwaubani (2003) 7 NWLR (Pt. 818) 50 where Nsofor, JCA stated @ 66 –
“It is settled law that a successful plea of res judicata constitutes a bar to any fresh action as between the parties or their privies. The rule of res judicata is delved from the Latin maxim, “Nemo debet bis vexari pro eadem causa”. It is the cause that matters and a plaintiff cannot by formulating a fresh claim re-litigate the same cause. Res judicata is as a plea a bar, as evidence it is conclusive. It is, therefore, relevant to stress that once the plea of res judicata has been established; the jurisdiction of the court would be ousted”.
In this appeal under consideration, I have to agree with the respondents that the deceased respondent was not a party or privy to the said suit No. 35/65, neither was she a witness in that case. As the records show, and as she herself confirmed, she was merely questioned as an independent witness by the Customary Court in suit No. 35/65 to cross check information given to them at the locus in quo by one of the witnesses. Even in that case, she stated what she maintained in this case, that her grandfather and father never paid ishakole to any body. In her evidence in chief she said that it was after the death of the appellants’ father, Awikun Olanibi, that the appellants started troubling her, damaging her crops, and threatening her life, that she should not go near the farmland or “should be paying ishakole to them”.
During cross-examination by the 1st appellant, she replied as follows;
“My father died about forty years ago. Out of the person who was paying annual rent (ishakole) for me after the death of my father were Owoeye Agunbiade, Adebowale and Apepe paid two tins of – palm oil”
C The said Agunbiade testified in her favour and stated as follows”
What I know about this farmland in dispute was that I was one of the tenants of the plaintiff’s grandfather who gave me a palm trees plantation to tape (sic) and a land for to plant my crops. I use to pay him annual rent (ishakole) yearly. After the death of the plaintiff’s grandfather, then I started to pay the isakole to the plaintiff’s father by name Emmanuel Saba Onifa. I use ten years inside the farmland which I paid isakole yearly to the plaintiff’s father before I left the farmland in E dispute (sic)” (Italics mine)
The 2nd plaintiff’s witness, Jacob Ademiyiwa testified as follows”
The plaintiff’s grandfather was the owner of this land in dispute at Lomofe. All the people who cultivated their farm and planted their crops inside this farmland in dispute were paying their annual rent (isakole) to the plaintiff’s grandfather before. When the plaintiff’s grandfather died, then her father started to use the farmland which all the tenants working inside the farmland in dispute were paying their annual rent (ishakole) to the plaintiff’s father, among of them were one Apepe, Isaac Adebowale, Owoeye, Jibade and other.
After the death of her father then the plaintiff inherited the farmland and she was the person who started to use this farmland”.
During cross-examination by the 1st appellant, the 2nd PW replied as follows –
“It was not on this plaintiff’s farmland at all that I represented Iwikun Community for because (sic) you and Iwikun Community fought on the farmland belonging to Chief Alumu of Ilumu, and the case
favoured you by then. This farmland in dispute is a separate one the farmland is at Igbo Lomofe. The plaintiff’s farmland is different from the farmland you mentioned, the farmland you mentioned is at Ilumu.
Yes, Chief Ogunseitan came to inspect the farmland you mentioned at Ilumu, which all of us made an explanation to him about the land at Ilumu. It was true that the plaintiff was an independent witness when Chief Ogunseitan came to inspect the then farmland in dispute, because the plaintiff farmland is at Igbo Lomofe and the farmland is at IIumu road pass through it (sic)….
The plaintiff was the person who was claiming her annual rent (isakole) from all the tenants working inside this farmland in dispute after the death of her father.
The appellants did not deny the fact that the plaintiff’s father did not pay ishakole to them. The 1st appellant in his evidence in chief stated as follows –
“All the tenant paying isakole for them, they usually collected it and gave it to my father …. But the father of he plaintiff (Fawenda) did not pay any isakole for his own farm among all the tenants inside this farmland’
(Italics mine)
During cross-examination by the court, the 1st appellant replied as follows –
“Yes Awikun Adeleye our father was the person who gave the plaintiff’s father a land for farming. After Awikwl Adeleye our father there were two Awikun installed in our family, but they never received any isakole from the plaintiff’s father. There was no any G misunderstanding between Awikun Adeleye or the other two Awikun installed in our family and the plaintiff’s grandfather nor her father on this farmland at all. …
Yes this farmland was on the hand of the plaintiff’s family when Awikun Olanibi was on the throne at Iwikun”.
In his own evidence in chief, the 2nd appellant testified as follows”
It was true that our great father, grandfather and our father and the father of the plaintiff did not fight on this farmland in dispute when they were alive and also nobody troubled or molested each other”.
During cross-examination by the court, the 2nd appellant replied as follows –
“Oguntosin was the in-law to our grandfather who gave this farmland to him, and he did not get any isakole from him. The great grandfather of the plaintiff was the person who gave our great grandfather a female child to marry. I don’t know the time that our great grandfather married the plaintiff’s great grandfather’s daughter.
About this farmland in dispute I heard it but I have not been born by then when our great grandfather gave plaintiff’s great grandfather this farmland and also I don’t know their agreement on this farmland”
The 3rd appellant also testified and during cross-exam by the court, replied –
“Our grandfather gave plaintiff’s grandfather a farmland to plant his economic crops because plaintiff’s grandfather was an in-law to our grandfather. The matter of the land came out in about 82 years. Our grandfather gave her grandfather a farm at Oko Lomofe because he was our in law. In our intention nobody wants to claim this farmland from her, because since when the farmland was given to the plaintiff’s grandfather nobody troubled or molested them” (Italics mine)
In its judgment delivered on the 19th of April 1988, the Customary Court held –
“The two families had been living in harmony for over 200 years without any problem. Let us assume that the parties are not relatives automatically it had been confirmed even by the defendants that the last generation up to the plaintiff never paid isakole on the farmland in dispute. As said by the defendants, let the plaintiff’s grandfather be the in-law of the defendant’s great grandfather, the plaintiff has got the legal advantage of long occupation on the farmland for over two hundred years in so much that it was the great grandfather of the plaintiff who planted the crops on the land in dispute. If the last seven generations of Awikun lived peacefully with the generation of the plaintiff this court sees no reason why the children should turn out to be enemies.
In conclusion, the plaintiff had established her case against the defendants, that she is the bona fide owner of the farmland in dispute. Finally this court holds that the plaintiff has legal justification on land (sic) to sue the defendants for declaration of title to the farmland.
(Italics mine).
The judgment of the trial Customary Court cannot be faulted. It was affirmed by the I1esa Senior Magistrate Court, then by the I1esa High Court and I see no reason to reverse the trend. It is an established principle that unless it becomes absolutely desirable to do so, the concurrent decisions of lower courts are hardly disturbed by the appeal court – see Usman v. Usman (2003) 11NWLR (Pt. 830) 109, Agu v. Nnadi (2002) 18NWLR (Pt. 798) 103 SC, Nziwu v. Onuorah (2002) 4 NWLR (Pt. 756) 22 SC.
In the final analysis, the plea of res judicata fails the appellants.
I am satisfied with the judgments of the three lower courts, and have no reason whatsoever to tamper with the decisions therein. Thus, the appeal lacks merit and is hereby dismissed by me. I affirm the decision of the lower court. The appellants are ordered to pay costs of N5, 000.00 to the respondents.
Other Citations: (2005)LCN/1859(CA)
