Adolphus Eshilonu & Ors. V. Christian Emereonyekwe & Ors. (2001)
LawGlobal-Hub Lead Judgment Report
OGEBE, J.C.A.
The appellants sued the respondents in Suit No. HOW/119/75 claiming title to pieces of land called “Ubugagu Ishi Nwadorogu”; N800 general damages for trespass to the said land and an injunction restraining the defendants or their agents from further trespass from the said land.
There were originally 7 defendants to the action. In the course of the trial of the suit before the Owerri High Court, the 1st, 3rd, 6th and 7th defendants died but were not substituted. Both sides fought the action in their representative capacities. There are only 3 surviving respondents in the present appeal.
Issues were joined between the parties and the appellants filed an amended statement of claim. Both sides gave evidence in support of their cases. The appellants’ case was based on traditional evidence that their ancestor Ehihie was the original founder of the land, which devolved on them.
The respondents called the disputed land Egbulu and testified that one Ezekom was the first person to own the land and they were descendants of Ezekom to whom the land devolved. Both sides tendered documents to show that there were several cases between them in respect of the disputed land. The appellants were not able to establish how their ancestor came about the land. The respondents tendered a judgment: Suit No. HOW/86/63 exhibit L between the parties in respect of the same land as a basis for their plea for res judicata. The trial Judge, Alinnor, J. (as he then was) painstakingly evaluated the evidence and dismissed the appellants’ claim.
Dissatisfied with that judgment the appellants have appealed to this court and filed a brief of argument in accordance with the rules of the court. In the appellants’ brief, learned counsel for them distilled 4 grounds of appeal. In the course of the argument of the appeal he abandoned issues (c) and (d) and the arguments thereon and they are hereby struck out. The remaining issues are as follows:
“(a) Whether the plea of res judicata was, in law, established by the respondents;
(b) Did the appellants not prove their root of title through traditional history on preponderance of evidence?”
The respondents ‘also filed a brief of argument and identified two issues for determination as follows:
“(a) Whether the lower court was wrong in holding that the defences of estoppel per rem judicatam and issue estoppel was established by the respondents so as to preclude the appellants from reopening the issues raised and determined by a court of competent jurisdiction in the 1963 case in relation to the said land in dispute by the same parties or their privies;
(b) Whether the trial court was wrong in holding that on the totality of the evidence, the appellants’ case at the trial, ought to have been dismissed.”
The learned counsel for the appellants submitted under issue (a) that there was evidence that before Suit No. HOW/86/63 was instituted by the respondents, Suit Nos. HOW/123/63 and HOW/124/63 were already pending between the present parties. He said that the learned trial Judge was wrong when he held that the appellants stood by and allowed the respondents in Suit No. HOW/86/63 to fight their case. He said that the defendants in Suit No. HOW/86/63 declined representative capacity and therefore the judgment against them was personal and could not constitute res judicata against the appellants. He however, conceded that PW1, Adolphus Eshilonu admitted that the land in dispute is the same as the subject matter of Suit No. HOW/86/63. He argued that the ingredients of res judicata were not present. He relied on the case of Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141.
In reply to this the learned counsel for the respondents submitted that in Suit No. HOW/86/63 the respondents sued 6 persons as representing Umuokocha kindred of the appellants. One of their representatives Anunobi Ofurum was a party to that suit. The case was heard by Egbuna, J., and the respondents won. The appellants were privy to this case and they did nothing. He said that PW1 admitted that there was litigation in respect of the same land in 1963 in which the respondents sued Umunguzo people and won. The learned counsel submitted that in a representative action parties in elude not only those named in the record of proceedings but also those represented and who are ready to attend and protect their interests at the proceedings. He relied on the case of Esiaka v. Obiasogwu (1/952) 14 WACA 178.
It is a well established principle of Law that to sustain a plea of res judicata the following conditions must be met:
- The same question must be for decision in both cases or proceedings
- The decision relied upon to support the plea must be final and by a court of competent jurisdiction.
- The parties must be the same, or their privies.
See the cases of Fadiora v. Gbadebo (1978) 3 SC 219 and Ogbogu v. Ndiribe (1992) 6 NWLR (Pt. 245) 40.
At page 138 of the record, PW1 the 1st appellant said that it was true that in 1963 the defendants sued Umuokocha people in respect of the land in dispute. At page 139 the witness under examination said thus:
“Anunobi Ofurum represented Umunguzo Community in Ikeduru nation court suits which were later transferred to Owerri as HOW/123/63 and HOW/124/63. It is true that Anunobi Ofurum is from Umunguzo Community. It is true that the court gave personal judgment to the plaintiff in HOW/86/63 who are now the defendants in the present suit HOW/119/75. It is the same land the subject of HOW/86/63 that is now in dispute in the present suit HOW/119/75. Nobody appealed against the judgment of the court in HOW/86/63 because the Umunguzo people were not parties to that suit. We were not interested in joining in another suit in which other persons were defendants. We were interested in pursuing our suits against the defendants in the present suit. I did not apply to be joined in suit HOW/86/63 because it was proper to join as a defendant with those defendants who had no interest in that subject land. It is not true that the judgment in HOW/86163 affected all the land now in disputed.”
From the above passage it is clear that Anunobi Ofurum who had represented the appellants in Suit Nos. HOW/123/62 and HOW/124/63 which suits were eventually abandoned because of the civil war was a party to Suit No. HOW/86/63 which the respondents were relying on as constituting res judicata and PWI admitted it is the same land that is being disputed in the present case.
The trial court made specific finding on the issue of res judicata and held at page 190 of the record as follows:
“Now the plaintiffs in the present suit, HOW/119/75 have argued that they were not parties in Suit No. HOW/86/63 because the defendants in the HOW/86/63 were Umuokocha people which of course they form part of. If I accept their contention that would be against the trend of evidence in this case. There is no merit in this argument that because the larger community was sued, therefore the smaller community forming part of the larger community will not be a party to the suit. Moreover, a representative of the Umunguzo community one Anunobi Ofurum was sued by himself and as representing people of Umuokocha. Anunobi Ofurum put up a defence in HOW/86/63 as could be seen from the judgment exhibit ‘L’ thus:
“The 4th defendant (that is Anunobi Ofurum) in his defence admitted entering this land in dispute and brushing part of it. He said that the area he brushed was their own land” (italicized by me to show that he offered defence for the people he represented).
Thus in Suit No. HOW/86/63, the Umunguzo people were clearly parties to that suit.”
I agree entirely with the conclusion of the trial court. I see no merit in this issue.
On the 2nd issue the learned counsel for the appellants submitted that the appellants sufficiently and convincingly established their root of title contrary to the finding of the trial Judge that they failed to do so. He said that the appellants were only required to plead and prove who founded the land, the particulars of the intervening owners through whom they claim. He relied on the case of Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386.
The learned counsel for the respondents agreed with the submission of the appellants’ counsel in respect of what is required of a claimant to a piece of land but differed by submitting that the appellants did not prove satisfactorily the founder of the land and the particulars of the intervening owners.
Indeed, it is the duty of a plaintiff seeking declaration of title to land by traditional history to show who founded the land, how he founded the land and the particulars of intervening owners through whom he claims. See the cases of Piaro v. Tenalo (1976) 12 SC 31; Olujinle v. Adeagbo (1988) 2 NWLR (Pt. 75) 238.
At pages 84 – 85, paragraph 7 of the amended statement of claim, the appellants averred as follows:
”The land in dispute is part of a bigger landed estate originally belonging to the plaintiffs’ forefather, one Ehihie, now deceased. Ehihie had 2 sons namely, Logbo and Nwokocha. On his death his lands passed to his said 2 sons who shared the land between themselves intervivos. The descendants of Logbo are now known as Obilokwu people. Nwokocha had 3 sons. On his death, his own share passed to his said 3 children: Nguzo, Awukll and Ugwukalibe. The descendants of Ugwukalibe are now known as Ndiegbelu. The said 3 sons of Nwokocha shared their own portion among themselves intervivos. The land in dispute is part of the share obtained by Nguzo which passed to the plaintiffs on his death.”
At page 128 of the record the 1st appellant who testified as PW1 testified as follows:
“The plaintiffs own the lands in dispute. We are the descendants of Nwokocha the son of Ehihie ache. Original owner of the land in dispute was Ehihie. We are not the only descendants of Ehihie. Ehihie had two sons namely Logbo and Nwokocha Oche. Descendants of Logbo are now known as Obilokwu. Nwokocha had three sons namely Eguw, Awukwu and Ugwukabise. The land in dispute is our own share of the lands of Ehihie.”
The trial Judge analyzed the evidence in respect of traditional history at page 181 of the record of appeal as follows:
The law is that once a party claiming title traces the root of his title to a particular person or family, he does not stop there and then claim that he has discharged the burden on him. He should still go further and establish how that person or family acquired the root of title in that land. See Inyang v. Eshiel (1990) 5 NWLR (Pt. 149) 178 at 183. I have drawn attention to this principle of law because of the manner in which the plaintiffs tried to establish their root of title. From the evidence of PW1 the land in dispute was originally owned by Ehihie. Was he the person that deforested it and appropriated it by acts of ownership. Alternatively did he acquire it by conquest. It is not enough to state that Ehihie was originally the owner. The plaintiffs should lead evidence as how he came to own the land. That is the state of the law as enunciated in Inyang v. Eshiet (supra) as well as in Magbagbeola v. Dada (1990) 5 NWLR (Pt. 149) 219 at 222.
The trial court eventually rejected the appellants’ traditional history. I am of the view that both the pleading and evidence of traditional history given by the appellants were totally unsatisfactory to establish a claim for declaration of title and I agree entirely with the conclusion of the trial Judge in that regard.
In the final analysis, I see no substance in this appeal at all. Accordingly I dismiss the appeal with costs of N5,000.00 in favour of the respondents.
Other Citations: (2001)LCN/1052(CA)
