Ayiwe Odjevwedje & Anor V. Madam Obenabena Echanokpe (1987)

LawGlobal-Hub Lead Judgment Report

UWAIS, J.S.C.

The appellants were the plaintiffs in a suit which they brought against the respondent as defendant in the High Court of Bendel State, holden at Ughelli. The plaintiff’s claims as per their statement of claim were as follows –

“(1) A declaration that the Plaintiffs are the occupiers of the piece of land shown on Survey Plan No. ECBS 355/80 filed with this Statement of Claim.

(2) N7,000.00 being special and general damages for the trespass committed by the Defendants and/or her Servants (and) Agents when sometime in January, 1980,they entered the land and destroyed rubber trees belonging to the Plaintiffs and started building operation.

(3) Perpetual injunction against the Defendant and/or her servants and agents from further acts of trespass, and/or interference with Plaintiffs’ possession.”

Pleadings were ordered, filed and served. At the trial the 1st appellant as the 1st plaintiff, testified and called two witnesses, one of whom (P.W.2).was a surveyor. The defendant did not give evidence or call any witness. The trial judge was therefore left with unchallenged evidence adduced by the plaintiffs to determine the case. Since the defendant’s case rested on her pleadings, it becomes necessary to refer to both the statement of claim and the statement of defence for the purpose of showing the issues joined by the parties. Paragraphs 3,4,5,6 and 7 of the statement ‘of claim averred as follows –

“3. The land in dispute in this case known and called “Ukunumene” is situate at Ekiugbo village within the jurisdiction of this Honourable Court. The land which was founded by Chief Odjevwedje of Iwherenene the ancestor of the Plaintiffs, is verged in green in the Plan No.ECBS 355/80 filed with this Statement of Claim.

4. Many years ago Chief Odjevwedje the ancestor of the Plaintiffs gave a piece of land within the land in dispute to the defendant’s ancestor one Ojawuri for building and planting cash crops. The piece of land given to Ojawuri was near the Southern boundary of the land in dispute. Mr. Ojawuri built and lived there until he died. He kept within the boundary granted to him by Plaintiffs’ ancestor.
5. After the death of Mr. Ojawuri, one of his descendants Omumu the brother of Echanokpe trespassed on part of the land in dispute by planting rubber trees on it. Descendant of Chief Odjevwedge one Echalimi then filed an action against Mr. Omumu for trespass in the Ughelli Village Group Court in Suit No.70/41. The Plaintiffs got judgment against defendant and defendant appealed to Urhobo Divisional Appeal Court in Suit No. 79/41 which allowed the appeal.
6. The Plaintiffs then appealed to the Magistrate Court Warri in Suit W/124/1942 and that Court allowed the appeal. On further appeal by Omumu to the Supreme Court defendant’s appeal was dismissed. Plaintiffs will at the trial of this action rely on suits pleaded in paragraphs 5 and 6 of this Statement of Claim especially Suits Nos. W/124/1942: Isalomi ys. Omumu, W/41A/1946: Isalomi v. Omumu, and Survey Plan filed in Suit No. W/124/1942.
7. Since the Suits pleaded in paragraph 6 of the Statement of Claim the Plaintiffs have enjoyed their piece of land without any interference from anybody until on or about January 1980 when defendant and/or her agents, servants without Plaintiffs’ consent and very much against Plaintiffs’ interest broke and entered the said piece of land and felled over 300 rubber trees and started moulding blocks on the land. The Plaintiffs immediately warned the defendant but she was adamant. Plaintiffs summoned the defendant before the Ekiugbo’s meeting but defendant refused to go before it.”

These averments were denied by the defendant in paragraphs 4, 5, 6, 7, 8, 9, 10, 14, 17, 18, 21 and 22 of her statement of defence. Simultaneous with the denials, the defendant set-up her case. The paragraphs in question state

“4. The defendant categorically denies paragraph 3 of the statement of claim. There is no land at Akiugbo called “Ukunumene”. Ukunemene is a name of a juju at Ekiugbo. It situates in a small forest near to the old Ekiugbo market place abutting the Ughelli-Patani Road. Ukunumene juju forest is quite different from the land in dispute. The present Fremason houses at Ekiugbo abut Ukunumene juju forest.

5. With further reference to paragraph 3, the defendant avers that Odjevwedje was a native of Iwrenene. The land in dispute is a portion of land within Ekiugbo. Ekiugbo was founded long, long before lwerenene was founded. Odjevwedje who lived at Iwrenene after Ekiugbo was founded could not and did not found the land in dispute.
6. The defendant denies paragraph 4 of the statement of claim. She avers that Ojawiri the father of Buluku was old enough to be the father of Odjevwedje. Odjevwedge and Buluku were age group. The land in dispute was a small portion of a larger parcel of land founded by Erhiekevwe (m). He was the first person to set foot on it and cleared it of its virgin forest. Erhiekvwe was the son of one Ogbe one of the two men who found Ekiugbo village.
7. Erhiekevwe begat Aganogbo (m) and Kesiena (f) among others.
8. Kesiena was married to one Odjevwedje of Iwrenene. At her marriage Erhiekevwe made an out and out gift of a portion of his land to his daughter Kesiena according to native law and custom of Ughelli people and the remaining portion was inherited by Aganogbo. The land in dispute is a part of the parcel of land inherited by Aganogbo.
9. Aganogbo begat Erhinyeraye (f) and Numa (m). Erhinyeraye was married to one Buluku the son of Ojawiri of Ekiugbo. At her marriage, her father Agenogbo made an out and out gift of a portion of the land to Erhinyeraye also according to Ughelli native law and custom. She farmed and lived on the land until her death. She was buried on the land over 60 years ago. This now is the land in dispute in this case.
10. Erhinyeraye begat defendant’s father Echanokpe who also lived, farmed and died on the land. He was also buried there. The defendant in turn inherited the land from her father and she has been farming and living on the land in dispute.”

“14. The land given to Kesiena has a common boundary with the defendant’s land now in dispute.”

“17. The land Erhiekevwe gave to his daughter Kiesiena and that which Aganogbo later gave to his daughter Erhinyeraye have common boundary.

18. The 1st and 2nd plaintiffs in this case are not the descendants of Odjevwedje and Kesiena. The 1st plaintiff is grand child of Odjevwedje by another woman. The 2nd plaintiffs mother was a sister to Odjevwedje the husband of Kesiena.”

“21. With regard to paragraphs 4 and 5 of the statement of claim, the defendant avers that the land that was now in dispute. The land in dispute in that case was the parcel of land Erhiekevwe gave to Kesiena. The plaintiffs included Ukunumene juju forest in the land in dispute in that case. The cause of the action was that Mr. Omumu crossed the boundary between the two parcels of land and planted rubber trees on the land given to Kesiena. In fact the defendant’s father was alive and living and farming on the land in dispute in this case and had also planted his rubber trees and other crops on the land before the case pleaded by the plaintiffs started.

22. Recently, the defendant felled some of her father’s rubber trees with a view to building on it. The plaintiffs objected and summoned the defendant to Ekiugbo community meeting. The community met and heard evidence from both sides and decided in favour of the defendant. The defendant shall contend during the trial that the plaintiffs are estopped from bringing this action against the defendant.”

In his judgment dismissing the plaintiffs’ claims, the learned trial judge observed as follows –

“It would appear that the plaintiffs relied on previous suits contested over the land, especially Suit No. W/41A/1946 Isalomi v. Omumu and the survey plan, attached thereto which plan was tendered in Suit No. W/124/1942 Isalomi v. Omumu.

Otherwise one would have expected the plaintiffs to lead further evidence establishing their possession of or right of possession of the spot where the defendant is building her house which sparked off this litigation. I am not unaware that the plaintiffs tendered plan Exhibit C to establish their case but the limit of their land was not properly established by evidence particularly the southern portion of the land in dispute… Although the plaintiffs did not specifically plead “Res judicata” paragraph 6 of the Amended statement of Claim comes near to it. The judgment in Suit No. W/41/1946 was a final judgment delivered by a court of competent jurisdiction of (sic) the merits and therefore is conclusive as to the rights of the parties and their privies and as to them constitutes an absolute bar to a subsequent action involving the same cause of action or claim. In sum, the whole rule is that a matter once judicially decided is finally decided.

The judgment in Suit No.W/41A/1946 may operate no doubt in appropriate circumstances, as res judicata against the defendant’s people. See Edem & Anor. v. Edet 6, WACA 220. The said judgment of 1946 was relied upon by the plaintiff to substantiate their pleas of res judicata… it is crystal clear that the land in dispute which was awarded the plaintiff is on the right hand side of the road when going from Ewherene to Ekiugbo; separated from the present land in dispute by a road.

Therefore, it cannot be said that the present land in dispute verged pink in Exhibit C is the same as the land awarded to the plaintiffs in Suit W/41A/1946 in Exhibit B where the land in dispute was edged red/pink… The plea of res judicata cannot therefore avail the plaintiffs.

On the whole, although I find the evidence of the plaintiffs was uncontradicted,I find myself unable to grant them any of the reliefs sought by them.”

Against this decision, the plaintiffs appealed to the Court of Appeal,complaining inter alia, that since the plaintiffs’ evidence was unchallenged and uncontradicted; and the survey plan exhibit showed the area of land verged green, which was declared to belong to the plaintiffs’ family, the trial judge should have entered judgment for the plaintiffs. The Court of Appeal (per Ete, J.C.A.) in agreeing with the trial judge came to the following conclusion –

“I have already pointed out that in Supreme Court (i.e. High Court) judgment in exhibit “A1”, the extent of the land awarded to the plaintiffs’ ancestors was confined to the area verged pink in exhibit “B” as found by the learned trial judge. To that extent the evidence of P.W.2, Childolue, that the land claimed in the present case and edged green in exhibit C is the same as the whole of the land in exhibit B becomes irrelevant. But it is clear to me that the claim in the present case has roped in the area excluded in exhibit “A1 “, as can be seen in the Amended Statement of Claim … The Supreme Court (i.e. High Court) merely said that the land outside the area edged pink in Exhibit B, which plan was accepted by both sides in that case i.e. Suit No. W/124/1942, was not put in dispute in that case. In that case, the trespass was in respect of the area edged pink in Exhibit B, and it is the area that the learned Magistrate inspected. But in the present case, the alleged trespass is over a different area of the whole of the land to which the plaintiffs are laying claim”

(italics mine)

After alluding to the decisions in Piaro v. Tenalo & Anor., (1976) 1 All NLR 228 and Ekpo v. Ita, 11 NLR 68 which laid down the principles for the proof of ownership of land and the onus of proof of the ownership respectively, the Court of Appeal held –

“Taking these decided cases into consideration it become clear that the learned (trial) judge was on the right track in holding that the plaintiffs had failed to prove their claim to the land verged green in exhibit C…

I would not relate the land claimed in Exhibit C to that edged green in Exhibit B because, as I have found already, whatever the extent of the land was in Exhibit B, the plaintiffs’ ancestors were only awarded the area edged pink in Exhibit B.”

The plaintiffs were further aggrieved by this decision. They therefore appeal from it to this Court. Four grounds of appeal were filed. They all touch on issue of estoppel. It seems to me ground 1 encompassed all the other 3 grounds. The ground reads –

“1. The learned Trial Judge (sic) of the Court of Appeal erred in law in failing to consider and/or apply the principle of issue estoppel arising from subsisting judgments of courts of competent jurisdiction to wit- Exhibit A, Al and B in relation to the land verged green in Exhibit C in that the Learned Justices wrongly held that:

(a) The Supreme (now High) Court in exhibit Al awarded only the portion edged pink in Exhibit A (Exhibit B in this instant case) to the plaintiffs instead of the whole of the area verged green in the said plan .

(b) That the area of land awarded to Plaintiffs’ predecessor in title in Exhibit A1 is confined in the area verged pink in Exhibit B.”

Now for a better understanding of this appeal it is necessary to narrate in some detail what transpired in both the 1942 and 1946 cases, that is Suit No. W/124/1942 and Suit No. W/41A/1946 respectively. On 25th September, 1942 a case brought by one Isalomi (Echalomi) against one Omumu in the Ughelli Village Group Court and Urhobo Divisional Court was transferred by the Resident of Warri Province to Magistrate’s Court Grade 1 sitting at Warri for hearing de novo. The original claim made by Isalomi was that Omumu should remove his rubber trees from Isalomi’s land which Omumu had occupied 3 years earlier. However the summons filed by Isalomi was amended with the leave of the learned Magistrate Grade 1 –

Ademola Esq. (as he then was) to read thus –

“The plaintiffs claim is for recovery of possession of all that piece or parcel of land known as “Ukunumene” situate and being in the Ughelli District and bounded on four sides by lands in the possession or occupation of Igbodudu, Oloberi, Atiku and Adjaroh respectively.”

Also

‘”An Injunction to restrain the defendant, his servants, agents and workmen from entering and interfering with the same land.”

Isalomi belonged to the same family as the appellants in the present case, that is the Odjevwedje family of Iwhrenene and Omumu belonged to the family of the respondent in the present case. However both Isalomi and Omumu had common great grandfather, called Esejiwowo.

Before the Magistrate’s Court, Isalomi tendered a plan of the land in dispute which was admitted as exhibit A by the Magistrate. The same plan was put in evidence in the present case as exhibit B. Now exhibit A before the learned Magistrate shows a large piece of land edged green. The key to Exhibit A shows that this piece of land is the portion of “Ukulumene” land which belonged to Ejeweje – the grand father of Isalomi. Right inside the piece of land edged green is the land in dispute between Isalomi and Omumu edged red. Still inside the piece of land edged green is a tract of land marked black. The tract of land lies partially within the land in dispute and partially within the rest of the piece of land edged green, but not covered by the land in dispute edged red.

In his judgment, the learned Magistrate Grade I, stated that he entered judgment for Isalomi in terms of his amended summons, quoted above. Umumu appealed against the judgment of the Magistrate to what was then the Supreme Court of the Warri Judicial Division, that was a High Court in fact. The Supreme Court, presided over by Jibowu, J. (as he then was) held in respect of the plan exhibit A, as follows-

“The land in dispute is edged pink, plan exhibit A, but was wrongly described as “red” by the Surveyor, and the portion alleged to have been given to Jawere is clearly defined. The plan exhibit A shows land around the land in dispute and belonging to the plaintiff – respondent (i.e. Isalomi), edged in green. It is this land edged in green which touches the lands of Ogbodudu, Neberi and Atiku.

The learned Magistrate therefore made a slip in giving judgment in terms of the amended summons which refers to the lands of Neberi, Ogbodudu and Atiku as the boundaries of the land in question which is not supported by the plan exhibit A, accepted by both sides as being correct. Judgment in terms of the amended summons is therefore wrong as being too wide as it embraces land other than the one in dispute…

I am, however, satisfied that the plaintiff – respondent (i.e. Isalomi) was entitled to succeed in his claim as regards the land in dispute minus the area granted to defendant-appellant’s (i.e. Umumu’s) ancestor (edged black) according to the plan exhibit A.

The Magistrate’s judgment is therefore varied to read-

“judgment for plaintiff for recovery of the land edged pink on the plan marked exhibit A excepting the area shown in black ink as the area given for occupation by Ejewere to Ojawiri; and excepting for this portion granted for occupation, the defendant appellant, his servants, agents and workmen are restrained from going on the land edged pink.”

(Italics mine).

Now at the trial in the present case before Maidoh, J. the plan exhibit A was tendered as exhibit B. The land in dispute in the present case was interposed in red in exhibit B. It is clear that this piece of land is not the same or part of the land in dispute in the 1942 and 1946 cases which was edged pink. But it is part of the land edged green to exhibit A. The question in the present case is: Can the respondent challenge the ownership by the appellants of the whole of the area edged green minus the area marked in black ink exhibit A.

Mr. Okpoku, learned counsel for the appellants, has submitted that the answer to the question is negative, because the respondent is by the principle of issue estoppel, estopped from denying that the land edged green belonged to the appellants, who inherited it through their ancestors. This, counsel submitted, is what both the Court of Appeal and the trial Court failed to appreciate. Learned counsel relied in support of his argument on a number of authorities, three of which are – Ladega & Ors. v. Durosimi & Ors. (1978) 3 S.C. 91; Ara v. Fabolude, (1983) 2 S.C. 755 at p. 788 and Ezewani v. Onwordi, (1986) 4 N.WL.R, 27.

In reply, Mr. Idigbe, for the respondent, argued that the decision in the 1946 case did not relate to the rest of the area in exhibit A edged green but specifically to the area of the land in dispute thereat edged pink. Counsel submitted that before issue estoppel can apply it must be shown to the satisfaction of the trial court that the land in dispute which was decided upon in the previous case, is identical with the land in the present case.

I think it is appropriate at this juncture to discuss the general principle of estoppel by judgment otherwise known as estoppel per rem judicatam, before examining whether the principles apply to the present case. There are two kinds of estoppel by judgment, namely (1) cause of action estoppel and (2) issue estoppel. The nature of these was explained by Diplock, LJ (as he then was) in Thoday v. Thoday, (1964) p. 181 at pp. 197-198 as follows –

“………… cause of action estoppel, is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, i.e. judgment was given upon it, it is said to be merged in the judgment transit in rem judicatam. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam. This, is simply an application of the rule of public policy, ….. issue estoppel, is an extension of the same rule of public policy. There are many causes of action which can only be established by proving that two or more different conditions are fulfilled. Such causes of action involve as many separate issues, as there are conditions (which the plaintiff must fulfill to establish his case); and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action. If, in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction; either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was.”

It emerges from the foregoing that both the Court of Appeal and the trial court, in the present case, concerned themselves only with cause of action estoppel in determining the appellants’ case. They failed to advert their minds to issue estoppel. It was due to this confusion in their minds that they held that the land in dispute in the present case could not be the subject of a plea of res judicata or estoppel, since it was not the same as the piece of land adjudicated upon in 1942 and 1946.

The defence of issue estoppel had been pronounced upon by this Court in quite a number of cases, including Ladega v. Durosimi (1978) 3 Sc. 91; Ara v. Fabolude, (1983) 2 S.C. 75; Fadiora & Anor. v. Gbadebo & Anor. (1978) 3 S.C. 219, Maga Chiwendu v. Nwanegba Mbamali, (1980) 3-4 S.C. 31 and Ezewani v. Onwordi & Ors. (1986) 4 NWLR 27. But one common feature of these cases is that generally it is always the defendant that raises the defence of issue estoppel against the plaintiff. The reverse is hardly come by. However it has since been settled that although the plea of estoppel is a shield for the protection of a defendant, it can also validly be employed as sword by a plaintiff – see Maga Chinwendu v. Nwanegbo Mbamali & Anor. (1980) 3-4 S.C. 31 at pA8 and Ezewani v. Onwordi, (1986) 4 NWLR 27 at p.55

In the 1942 case the defendants predecessor in title (Mr. Omumu) admitted that the survey plan exhibit A (now exhibit B) which was tendered in evidence by the appellants’ predecessor in title (Isalomi) was accurate. So that both the trial Magistrate and Jibowu J. did not have to pronounce on the accuracy. Furthermore, the plan showed that the large portion of land edged green, which was called “Ukulumene” was owned by Ejeweje, who was the grandfather of Isalomi. This was also admitted, by inference, by the defendant’s predecessor in title who admitted exhibit B as accurate. The question that arises is: were the lower courts right in rejecting the plaintiffs’ plea of issue estoppel, in view of the defendants admission (by inference as a privy to Mr. Omumu) in the 1942 case, that exhibit A (now exhibit B) was accurate It is to be borne in mind that the plaintiffs’ claim in the 1942 case as presented by Isalomi is that the land in dispute was part of a vast area of land called “Ukulumene”, which he inherited from his ancestors. Therefore for him to establish his ownership of the land in dispute, it was necessary that he proved the ownership of the vast area edged green, of which the land in dispute, was a portion. The Privy Council in Hoystead v. Taxation Commissioner (1926) A.C. 155 at … 165-166 said-

“In the opinion of their Lordships it is settled, first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view of obtaining another judgment upon a different assumption of facts; secondly, the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of that fact. Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle. Thirdly, the same principle – namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken. The same principle of setting parties’ rights to rest applies and estoppel occurs.”

(Italics mine).

It is clear, therefore, that by the application of the doctrine of issue estoppel, the defendant could not have successfully challenged the claim by the plaintiffs, that the vast land edged green belonged to them. In paragraph 22 of the statement of defence, which is quoted above, the defendant admitted going on to the plaintiffs’ land in dispute and felling some rubber trees with a view to putting up building on the land. This is clear admission of trespass since the land in dispute was not owned by the defendant and no permission to do so was given by or obtained from the plaintiffs.

For the foregoing reasons, I am satisfied that both the lower courts were in error for failing to uphold the appellants’ plea of issue estoppel. With the evidence adduced by the appellants, which was neither controverted nor challenged, together with the defendants’ admission of committing trespass in paragraph 22 of her statement of defence, the learned trial judge and the Court of Appeal should have entered judgment for the plaintiffs. In the result the appeal succeeds. The decisions of the Court of Appeal as well as that of the High Court are hereby set aside. In their place the following orders are made-

(1) The plaintiffs are hereby declared the occupiers of the piece of land shown in Survey Plan No. ECBS 355/80, otherwise referred to as the land in dispute, excluding the area granted to the defendant’s ancestor.

(2) Damage assessed at N1,000.00 for the trespass committed by the defendant on the plaintiffs land, is awarded to the plaintiffs.

(3) Perpetual injunction is granted against the defendant and/or her servants and agents from further acts of trespass, and/or interference with the plaintiffs’ possession.

(4) And costs of N200.00 in the High Court, N200.00 in the Court of Appeal and N300.00 in this Court are awarded in favour of the appellants.

ESO, J.S.C. (Presiding): I have had a preview of the lead judgment just delivered by my learned brother Uwais, J.S.C. and I am in full agreement. Whatever I add herein is for the purpose of emphasis.

For a clear understanding of the issues involved in this appeal, it is necessary to set out the facts as were presented before the Court of Trial and upon which facts the judgment of the Trial Court was based. This is the more important, especially is while appeal to the Court of Appeal is founded on facts other issues have arisen in this Court.

In the trial court the main claim is specified in the Plaintiffs’ amended statement of claim, the pertinent paragraphs of which are as follows-

“1. Plaintiffs are Urhobos of lwhrenene village in Ughelli within the jurisdiction of this Honourable Court. Both Plaintiffs who are members of Odjevwedje family are farmers and bring this action with the consent and authority of the other members of the family.

2. The defendant is a daughter of one Echanokpe who was the son of Buluku of Ekiugbo village, Ughelli. Buluku was the son of Ojawuri also at Ekiugbo.
3. The land in dispute in this case known and called “Ukunumene” is situate at Ekiugbo village within the jurisdiction of this Honourable Court. The land which was founded by Chief Odjevwedje of Iwherenene the ancestor of the Plaintiffs, is verged in green in the plan No. ECBS/651/82 filed with this statement of claim.
4. Many years ago Chief Odjevwedje the ancestor of the Plaintiffs gave a piece of land within the land in dispute to the defendant’s ancestor one Ojawuri for building and planting cash crops. The piece of land given to Ojawuri was near the Southern boundary of the land in dispute. Mr. Ojawuri built and lived there until he died. He kept within the boundary granted to him by plaintiffs’ ancestor.
5. After the death of Mr. Ojawuri, one of his descendants Omunu the brother of Echnakpe trespassed on part of the land in dispute by planting rubber trees on it. A descendant of Chief Odjevwedje one Echalomi then filed an action against Mr. Omunu for trespass in the Ughelli village Group Court in Suit No. 70/41. The Plaintiffs got judgment against defendant and defendant appealed to Urhobo Divisional Appeal Court in Suit No. 79/41 which allowed the Appeal.
6. The Plaintiffs then appealed to the Magistrates Court, Warri in Suit No. W/124/1942 and that Court allowed the appeal. On further appeal by Omunu to the Supreme Court, defendant’s appeal was dismissed. Plaintiffs will at the trial of this action rely on Suits pleaded in paragraph 5 and 6 of this statement of claim especially suit Nos. YV/124/1942:Isalomi vs. Omumu, W/41A/1946: lsalomi vs. Omumu and Survey plan filed in suit No. W/124/1942.
7. After the suits pleaded in paragraph 6 of this Statement of Claim the Plaintiffs took possession of the whole area including the area on which Mr. Omunu planted rubber trees and enjoyed same without interference from anybody.
8. Plaintiffs therefore had no choice but to file this action and to claim as follows:-

(1) A declaration that the Plaintiffs are the occupiers of the piece of land shown on Survey Plan No. ECBS/651/81 filed with this Statement of Claim. Except the area granted to the Defendant’s ancestor and father.

(2) N7,000.00 being special and general damages for the trespass committed by the Defendants and/or her servants, Agents when sometime in January, 1980 entered the land and destroyed rubber trees belonging to the Plaintiffs and started building operation.

(3) Perpetual injunction against the Defendant and/or her servants and Agents from further acts of trespass, and/or interference with plaintiffs possession.”

The statement of defence which was filed earlier to the statement of claim was not amended and that was the position throughout the trial of the action.

Now paragraphs 4 and 7 are very important. The incident that has led to the present action, according to the Plaintiff, was described in paragraph 7. After the ancestor of the Plaintiff had granted a piece of land within the land in dispute to the defendant’s ancestor, and which land was close to the Southern boundary of the land in dispute (but still within the land in dispute), a descendant of that grantee trespassed upon Plaintiffs’ land (Paragraph 4 of the Statement of Claim). Litigation ensued, and this ended with a decision of the Supreme Court (that is, the present High Court) which went in favour of the Plaintiffs.

That decision was pleaded in paragraphs 5 and 6 of the Statement of Claim, (supra) as well as the decisions of the Magistrates Court Warri (Suit No. W/124/1942).

It was after this decision and Plaintiffs had taken possession of the land trespassed upon, leaving only for the Defendant the area granted to his ancestor that the present defendant’s father asked for and got another grant.

This grant is different from the one previously granted to defendant’s ancestors, and still retained by the defendants after the litigation I have referred to. In fact, it is opposite that original grant.

The trespass now complained of was by the defendant’s act of going out-side the grant made to her father. The defendant’s case as contained in his Statement of defence (and he never filed an amendment to this statement despite an amendment by the Plaintiffs to their Statement of Claim) was that the land belonged to her ancestors. She said that both the plaintiffs and her, originally, had a common ancestor.

The trial court, (Maidoh J.) went thoroughly into the facts of the case. He held, dismissing the claim of the plaintiffs, that the land in dispute in Suit No. W/41A/1946 -lsalomi v. Omunu is on the right hand side of the road and it is separated from the present land in dispute by a road.

He said-

“Witness did not prepare Exhibit B which he said had no bearing and distance. He further said that the portion marked Exhibit C1 in Exhibit B is not exactly the same dimension with the portion verged pink in Exhibit C; because the Northern portion of the spot is excluded in Exhibit C due to the widening of the road which was formerly a footpath. It would appear that the plaintiffs relied on previous suits contested over the land, especially Suit No. W/41A/1946 lsalomi v. Omunu and the survey plan, attached thereto which plan was tendered in Suit No. W/124/1942 lsalomi v. Omunu.

Otherwise one would have expected the plaintiffs to lead further evidence establishing their possession of or right of possession of the spot where the defendant is building her house which sparked off this litigation. I am not unaware that the plaintiffs tendered plan Exhibit C to establish their case but the limit of their land was not properly established by evidence particularly the Southern portion of the land in dispute.”

Concluding, Maidoli J. said –

“The judgment in Suit No. W/41A/1946 may operate no doubt in appropriate circumstances, as res judicata against the defendant’s people. See Edem & anor v. Ed 1 6 W.A.C.A. 220. The said judgment of 1946 was relied upon by the plaintiffs to substantiate their plea of res judicata. In Suit No. W/41A/l946 lsalomi v. Omunu the penultimate paragraph of the judgment stated inter alia.

“I am, however, satisfied that the plaintiff/respondent (the present plaintiff) was entitled to succeed in his claim as regards the land in dispute minus the area granted to the defendant/ appellants (the present defendants) ancestor according to the plan Exhibit ‘A’.

“The Magistrate’s judgment is therefore varied to read:

judgment for plaintiff (present plaintiff) for recovery of the land edged pink on the plan marked Exhibit ‘A’ (now Exhibit ‘B’) excepting the area shown in black ink as the area given for occupation by Ejewere to Ojewiri, and excepting for this portion granted for occupation, the defendant/appellant (the present defendant) his servants, agents and workers are restrained from going on the land edged pink”.

Adverting to Exhibit ‘C’ it is crystal clear that the land in dispute which was awarded the plaintiff is on the right hand side of the road when going from Ewhrene to Ekiugbo; separated from the present land in dispute by a road.

Therefore it cannot be said that the present land in dispute verged pink in Exhibit ‘C’ is the same as the land awarded to the plaintiffs in Suit W/41A/1946 in Exhibit ‘8’ where the land in dispute was edged red/pink. There is a lot of difference between the area stated to be Ukunumene land in Exhibit ‘B’ verged green and the area actually awarded by Court to the plaintiff’s people verged red by the Surveyor and referred as pink by Court in Exhibit’ A1′ (1946 judgment). The plea of res judicata cannot therefore avail the plaintiffs.

On the whole, although the evidence of the plaintiffs was uncontradicted, I find myself unable to grant them any of the reliefs sought by them. There is no sufficient evidence of the plaintiffs possession or right of the land in dispute, nor has the plea of res judicata been established over the area verged pink in Exhibit ‘C’. The action is dismissed with N25 cost in favour of the defendant.”

On appeal to the Court of Appeal, Ete J.C.A. delivering the judgment of the Court, dismissed the appeal of the plaintiffs/appellants. The Court held that though the plaintiff’s evidence was uncontradicted, there was no sufficient proof of ownership of the land.

It is against this judgment, then, that the plaintiffs have again appealed to this Court. The issues raised in the grounds of appeal and the brief of Mr. Okpoko of counsel are very interesting. He divided the issues into

(1) Arising from the Pleadings

(2) Issue Estoppel

Learned counsel submitted to us in his oral argument that the land which had been previously litigated upon in both the Magistrate’s Court and the Supreme Court (High Court), the judgments of which have been pleaded, is the same land in dispute in this case. He then submitted that on the authorities of this Court, the issue of the ownership of that land had been settled in those earlier proceedings and this will constitute issue Estoppel against the defendants, as opposed to Respondent’s case that Estoppel per rem judicatam does not apply.

Chief B.E.E. Idigbe, learned counsel for the Respondent, contended that the Court of Appeal’s judgment, as well as the High Court judgment, should be supported.

I think, it is necessary to find out if the land in dispute, in this case, is within the land litigated upon in Suit No. 70/41 in the Ughelli Village Group Court, which went on appeal to the Urhobo Divisional Appeal Court in Suit No. 79/41 and to the Magistrates Court, Warri in Suit No. W/124/1942 and finally to the Supreme Court (High Court) in Suit W/41A/1946. These suits were pleaded by the plaintiffs in paragraphs 5 and 6 of their statement of claim (supra). In answer to this plea the Defendant said-

“With regard to paragraphs 4 and 5 of the statement of claim, the defendant avers that the land that was now in dispute. The land in dispute in that case was the parcel of land Erhiekevwe gave to Kesiena. The plaintiffs included Ukunumene juju forest in the land in dispute in that case. The cause of the action was that Mr. Omunu crossed the boundary between the two parcels of land and planted rubber trees on the land given to Kesiena. In fact the defendant’s father was alive and living and farming on the land in dispute in this case and had also planted his rubber trees and other crops on the land before the case pleaded by the plaintiffs started.”

If the land in dispute was the one litigated upon in those suits, as claimed by the Plaintiffs, then the extent of the decision in the suits would be relevant, to find out whether or not the issue of ownership of the land had been settled and determined, and further, whether or not that would constitute issue estoppel. If it does, then the question of fresh proof of ownership by the plaintiffs would not arise.

In that regard therefore, one would have to examine the evidence on this and the decisions of the Trial Court and the Court of Appeal.

Only the Plaintiffs called evidence, 1st Plaintiff[ said –

“Buluku begat Omumu. After Buluku’s death, the son Omumu planted rubber trees at the back of the house of Buluku. When this was discovered by Odjevwedje’s children, Omumu was summoned. Because of planting rubber trees behind Buluku’s house, Omumu was summoned before Ekiugbo and Ewhrenene villages.

It was Echalomi who summoned Omumu.

Echalomi later filed an action in the Ovie’s Court.

Echalomi won the case and the land was declared to be Odjevwedje’s family land. Echalomi was a grand son of Odjevwedje.

Echalomi is now dead.

Omumu is still living.

After the verdict at Ovie’s Court Omumu was not satisfied and he appealed to Urhobo Appeal Court. Omumu lost the appeal at Urhobo Appeal Court.

Omumu was still not satisfied and he took a further appeal to the then Resident (Captain Pender). Omumu further appealed to Magistrate’s Court Warri, when Captain Pender decided against him.

The ultimate court decision was in favour of Odjevwedje’s family and this was before a Judge. It must be noted that the rubber trees were planted outside the land granted to Buluku; hence Omumu was sued. The court awarded the plaintiffs people the area where Omumu trespassed upon.”

“The land litigated upon by Isalomi and Omumu is the same parcel of land now in dispute. ”

(Italics mine)

Cross examined, he said –

“We do not claim only the land on the right hand side of the road leading from Ewhrenene to Ekiugbo, but we claim the lands on both sides of the road. The land trespassed upon by the defendant is on the left of the road from Ewhrenene.” (again Italics by me)

The plan which was tendered in the suits, which were pleaded, was tendered in the instant case as Exhibit B while in the cases in the Magistrate’s Court and the Supreme Court, it was tendered as Exhibits A and A1 respectively. At least, it is clear from Ex.B, which land was in dispute in the cases in question. But the most important witness, in so far as the question of issue estoppel goes, was the Surveyor, Chidolue, who gave evidence for the Plaintiffs. This surveyor made the plan which was used in the present case. That plan, Exhibit C, shows the area in dispute as edged pink. In Court, the witness charted Exhibit B which reflected the area covered by the previous suits. I will quote the evidence of the Surveyor-

“I prepared plan No. ECBS/651/81 of 15/12/81. (Plan is tendered and marked Ex.C.).

The area verged pink in Exhibit C is the land in dispute. The area verged pink in Exhibit C is within the area conceded or adjudged to the plaintiff in the previous suit in Ex. B. In both Exhibits B & C the pillar No. NH 174 is shown.

The said pillar is in the eastern corner of the area verged pink in the present suit, as the northern portion of the land in dispute had been chopped by a new road, which was a foot path in the previous land suit in Exhibit B.

Exhibit C was made on a scale of 1 in 1000, while Exhibit B was made on a scale 1 in 1200. It is not easy to superimpose one of the plans on the other but I can plot the area verged pink in Exhibit C on Exhibit B.

Witness was allowed to do the plotting. I have now shown what the area verged pink in Exhibit C would be in Exhibit B.

The area verged pink in Exhibit C is short of eastern portion in Exhibit B.

I have now shown the location/position of the portion marked pink in Exhibit C on Exhibit B.

It is shown in red and marked Cl. (Idigbe not objecting) in Exhibit B. My exercise shows clearly that the area marked pink in Exhibit C is within the land adjudged to the plaintiff in Exhibit B.”

(Italics for the purpose of emphasis, mine)

This witness was severely cross-examined by the defendant’s counsel, Chief Idigbe. Indeed, during the cross-examination, it was revealed that the area covered by EX.B is larger than the area in the present suit. The surveyor said

“…….. The land in dispute in this case is not exactly the same as the one previously litigated upon because the plaintiffs now claim less…

(Italics mine).

As I have said earlier, the defendant called no evidence. I have already set out what the learned trial Judge made of the evidence before him. It is clear that when the learned trial Judge referred to the land awarded to the plaintiff in the previous suit, he was relying on the modification by the Supreme Court (High Court) of the order of the Magistrate. That of course was because the learned trial Judge had inhibited himself with the idea of a plea of res judicata as opposed to issue estoppel. I will come to the difference between the two later.

The Court of Appeal was similarly inhibited. Ete J.C.A. held:

“However, it is clear that Chidolue was mistaken in his evidence that the area marked pink in Exhibit C is within the land adjudged to belong to the plaintiff in Exhibit B, because the Supreme Court in Exhibit ‘AI’ awarded only the portion edged pink in Exhibit A (Exhibit B in this instant case,) to the plaintiff. Instead of the whole of the area edged green in the said plan.”

Now, what were the decisions of the Magistrate’s Court and the Supreme

Court (High Court) in those previous cases Certainly as I have earlier pointed out, a plan accompanied the case before the Magistrate. It was marked Ex. A in that case. That Ex. A is now Ex. B in this case, that is, the plan which contains the area belonging to plaintiffs’ ancestor, and which one has been charted by the Surveyor on Ex. C. This area, the surveyor said, was larger than the land in issue in this case. Be it noted that it was the portion that was claimed by the Plaintiffs’ ancestor that was charted in Ex. B by the Surveyor. The Magistrate said –

“The defendant accepted the plan Ex. “A “. It is a very big land and according to the plan the plaintiff claims the portion forming the centre of Ukunumene land and surrounding him on different sides four other families own the rest of Ukunemene land. The defendant having accepted the plan did not call a single witness with whom he has boundary, even though he himself resides in the village where the land situates.

The plaintiff’s case is strengthened by the fact that although he does not live at Ekiugbo, yet all those who have boundary with the land in dispute testified to the fact that the land had been in possession of his family for years and they had farmed on it. The farming to Ukunumene juju shrine by the defendant suggests to my mind that he or members of his family had never farmed on the land, but he has taken upon himself to penetrate quietly and gradually taking more and more land until he got into the “sacred” area.”

So it is the whole of Plaintiff ancestor’s land of Ukunumene land that was before the Magistrate. It was that whole plaintiffs’ ancestor’s land that was edged “green” in Exhibit B and that “green” encompasses the area charted by the Surveyor on Exhibit “C”. In other words that “green” encompasses the area now in dispute in the present action.

And the Magistrate concluded –

“I am satisfied that plaintiff and members of his family and his ancestor before him have had exclusive proprietary rights of the land in dispute, and have farmed on it for years. I am satisfied from the evidence before me that the defendants…”

In other words, it was in respect of the whole of Plaintiffs’ ancestor Ukunumene land that according to the learned Magistrate, was owned by the plaintiffs’ ancestor.

In the Supreme Court (High Court) Jibowu J. actually denoted the ownership by reference to colours which colours have now been refered to in this case. He said –

“The land in dispute is edged pink plan exhibit A, (that is EX.B in this case) but was wrongly described as ‘red’ by the Surveyor, and the portion alleged to have been given to Jawere is clearly defined. The plan exhibit A (that is Ex. B in this case) shows land around the land in dispute and belonging to the plaintiff-respondent, edged in green. It is this land edged in green which touches the lands of Ogbodudu, Neberi and Atiku.”

(Italics and words in brackets by me)

And so, the land which the learned Magistrate held, was owned by the plaintiffs’ ancestor, was edged green. This area edged green the learned Judge of the Supreme Court (High Court) on appeal, also held was owned by the Plaintiffs’ ancestor. And that is the land referred to by Maidoh J. when he said –

“There is a lot of difference between the area stated to be Ukunumene land in EX.B verged green and the area actually awarded by Court to the plaintiffs’ people verged red by the Surveyor and referred to as pink by court in Ex. A1 (1946 judgment).

In other words, if the area verged green in EX.B can be held as the area in respect of which there is an issue estoppel, against the defendant, on the ground of ownership by the plaintiffs, then, of course, that is the end of the case. And this was precisely what was shown if one examines the evidence and the plans thoroughly.

What then is an issue estoppel In a cause, more than one issue may arise. While some of the issues may be decided in favour of one party in the cause, the other issues may be decided in favour of the other party. This is different from the final determination of the cause. If the parties are the same, and the subject matter is the same, the determination of the whole cause against one party estops that party from raising the contrary before another court in another suit between the same parties and the same subject matter. It is said that there is estoppel per rem judicatam. If the decision is in regard to only some of the issues within the cause, there is issue estoppel. I will like to quote with approval the dictum of Diplock L.J. in Fidelitas Ship- G ping Co. Ltd. v. VIO Exportchled (1966) 1 Q.B. 630, at p.642. The learned Law Lord had said –

“In the case of litigation the fact that a suit may involve a number of different issues is recognised by the Rules of the Supreme Court (U.K. Rules) which contain provision enabling one or more questions (whether of fact or law) in an action to be tried before others. Where the issue separately determined is not decisive of the suit, the judgment upon that issue is an interlocutory judgment and the suit continues. Yet I take it to be too clear to need citation of authority that the parties to the suit are bound by the determination of the issue. They cannot in the suit advance argument or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is by way of appeal from the interlocutory judgment and, where appropriate, an application to the appellate court to advance further evidence; but such application will only be granted if the appellate court is satisfied that the fresh evidence sought to be adduced could not have been available at the original hearing of the issue even if the party seeking to adduce it had exercised due diligence.”

How about raising the issues in another suit between the same parties on the same subject matter In Ezewari v. Onwordi (1986) 4 N.W.W.R. (Part 33) 27, this Court as per Kazeem J.S.C. referred to Idigbe J.S.C.’s pronouncement in Samuel Fadiora and Anor. v. Festus Gbadebo (1978) 3 SC. 219. I regard the learned Justice of Supreme Court Idigbe’s pronouncement as a classicus on the subject. Idigbe J .S.C. had said in that case –

“Now, there are two kinds of estoppel by record inter partes or per rem judicatam, as it is generally known. The first is usually referred to as “cause of action estoppel” and it occurs where the cause of action is merged in the judgment, that is, Transit in rem judicatam, (See King v. Hoare (1844) 13 M & W 495 at 504).

Therefore, on this principle of law (or rule of evidence) once it appears that the same cause of action was held to lie (or not to lie) in a final judgment between the same parties, or their privies, who are litigating in the same capacity (and on the same subject matter), there is an end of the matter. They are precluded from relitigating the same cause of action. There is, however, a second kind of estoppel inter partes and this usually occurs where an issue has earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in these circumstances, “issue estoppel” arises. This is based on the principle of law that a party is not allowed to (i.e. he is precluded from) contending the contrary or opposite of any specific point which having been once distinctly put in issue, has with certainty and solemnity been determined against him. (See Outram v. Morewood (1803) 3 East 346). Issue estoppel applies whether the point involved in the earlier decision is one of fact or law or one of mixed fact and law. However, for the principle to apply, in any given proceedings, all the pre-conditions to a valid plea of estoppel inter partes or per rem judicatam must apply, that, (1) the same question must be for decision in both proceedings (which means that the question for decision in the current suit must have been decided in the earlier proceeding), (2) the decision relied upon to support the plea of issue estoppel must be final (3) the parties must be the same (which means that parties involved in both proceedings must be the same) (per se or by their privies).”

Applied to this case, it is patent that there has been a decision of both the learned Magistrate (Warri) and the Supreme Court (High Court) in regard to the whole of Plaintiffs’ ancestor’s land of Ukunumene. The two courts acknowledged the ownership of that whole land in the plaintiffs’ ancestor. Between those parties who are the predecessors in title of the plaintiffs and the defendant respectively there is issue estoppel and the plaintiffs need not prove ownership of that land again in a suit raising the issue of ownership of the land between the parties.

As a result of this, I am in complete agreement with Mr. Okpoko that the trial court should have taken those previous judgments into account before determining the case against the Plaintiffs. If the learned trial Judge had taken these into consideration, he would have found in favour of the Plaintiffs. The Court of Appeal fell into the same error as did the trial Court. Even though Issue Estoppel was taken up in that Court, the Court of Appeal never adverted its mind to it.

If the judgment is allowed to stand, surely, this would amount to wiping out the decisions in the previous judgments. It is not for a Court of Appeal to do this. A Court of Appeal only sits to review the matter on appeal before it and not to wipe out previous decisions which were not appealed against. In regard to those the Court of Appeal has no jurisdiction. However long the arms of the law are, they do not exist to twist what is not placed before the Court. A decision of a court of competent jurisdiction not appealed against, or which appealed against has not been set aside, exists for ever between the parties. It is in the interest of public policy that there must exist an end to litigation. This brings certainty. This is justice. In the previous litigation the Respondents have been held to be tenants, not owners. And so between the parties that is the highest status they can ever acquire except circumstances change.

It is for all these reasons and the reasons stated in the lead judgment of my learned brother Uwais J.S.C. that I would allow this appeal.

The appeal must therefore succeed, and it is hereby allowed. The judgments and orders of the Trial Court and the Court of Appeal are hereby set aside. In their place is entered judgment in favour of the Plaintiffs/Appellants. Judgment is therefore entered in favour of the Plaintiffs/Appellants in the following terms –

Plaintiffs are granted –

1. declaration that they are entitled to the statutory right of occupancy of land shown on Survey Plan No. ECBS/651/81 which is Exhibit C at the trial in the High Court (except the area which the plaintiffs’ ancestor granted to the Defendant’s ancestor.)
2. Perpetual injunction against the Defendant and/or her servants and agents from further acts of trespass and/or interference with Plaintiffs’ possession.
3. N1,000.00 as damages for trespass by the Defendant on Plaintiffs’ land.

Costs of N300.00 to Appellants, costs of this appeal. Costs in the High Court assessed as N200.00 and Costs in the Court of Appeal at N200.00 in favour of the Appellants.

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SC.126/1985