Chief Amadi Dike-ogu & Ors. V. Owhonda Frank Amadi & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A.

This is an appeal against the judgment of Hon. Justice Ichendu (as he then was) dismissing the action of the plaintiffs, now the appellants herein.

The plaintiffs sued, inter alia, for a declaration that the defendants, now the respondents herein, are not chiefs of Rumueme community and therefore have no mandate to represent the said Rumueme Community at any level of responsibility and for injunction restraining the said defendants from holding themselves out as such.

The plaintiffs’ case at the trial court is set out in their 27 paragraphs further amended statement of claim dated 23rd September, 1996 on pages 169-173 of the record of this appeal. The defendants who were represented by two different counsels separately filed statement of defence. The 1st – 7th and 9th – 12th defendants filed 27 paragraphed statement of defence on pages 116 – 122 of the record while the 8th defendant filed a 21 paragraphed statement of defence on pages 127-139 of the record.

The appellants’ case can be summarised as follows: The appellants claim that they are Chiefs and indigenes of Rumueme Community while the respondents reside at Rumueme. They sued for themselves and on behalf of all other persons who purport to be members of Rumueme council of Chiefs, Elders and Owhor Holders.

Appellants claim that they are descendants of Ebara who for over 600 years ago, acquired the Rumueme area by conquest and moved his people there and have therefore become natives of the area. That the fact that the defendants are not indigenes of Rumueme has been so judicially pronounced by the River State High Court in suit No. PHC/64/84 and confirmed by the Court of Appeal in No. CA/PH/12/93 and reported in the Akaniwon v. Nsirim (1997) 9 NWLR (Pt.520) 255 and that since the founding of Rumueme, the traditional authority resides in Rumueme Council of Chiefs represented by the plaintiffs on record. Relying on a number of judgments and rulings more particularly the ruling of Court of Appeal sitting in Enugu in CA/E/40/86, they contended that under the Rumueme custom and tradition, no person has the right to arrogate to himself the position of a Chief or a representative of the Rumueme community except he is duly installed or appointed.

The respondents denied all the claims of the appellants and called three witnesses.

The learned trial Judge after examining these judgments and ruling, held that they do not advance appellants’ case in a claim of estoppel. The learned trial Judge, at page 256 of the record held thus:

“From all I have considered above, none of the preconditions for the application of the previous suits (i.e. exhibits P2, P3, P4, P5 and P7) pleaded by the plaintiffs in this suit is present. The law is that the plea of estoppels per rem judicatam will fail immediately any of the preconditions for its application is absent. See Cardoso v. Daniel (supra).”

After examining other aspects of the appellants’ case outside the rejected judgments and rulings, his Lordship finally held at page 273 of the record dismissing the appellants’ suit, thus:

“The final result is that the plaintiffs have failed to prove ‘this case against the defendants and accordingly, I hereby dismiss their claims in their entirety with costs in favour of the defendants which fix at N3,500.00.”

Aggrieved by this judgment, the plaintiffs originally filed one ground of appeal and later sought leave of the court to file 6 (six) additional grounds of appeal.

In compliance with the rules of this court, respective counsel filed and exchanged brief of argument on behalf of the parties.

In the appellants’ brief prepared by his counsel, W. Boms, Esq, deemed filed on 26/9/2002, the following six issues were formulated as arising for determination in this appeal.

“1. Whether the ruling in exhibit P5 is a final decision that can support a plea of relevant fact under section 55 (now section 56) of the Evidence Act or a plea of issue estoppels.

2. Whether the plaintiffs/appellants did rely on exhibit P4, the judgment in suit No PHC/64/84 as a relevant fact.
3. Whether the plaintiffs pleaded exhibit P3 as constituting issue estoppel or relevant fact.
4. Whether on a proper examination of the proceedings in exhibit P4, exhibit P5, exhibit P7 and the present suit, it is correct that the parties in suit No. PHC/64/84 are the same as the pat1ies in the present suit.
5. Whether the judgment in exhibit P4 is a judgment in rem that binds not only the parties thereon but the entire world.
6. Whether the plaintiffs are entitled to judgment by virtue of exhibit P4, the judgment in PHC/64/84.”

In the course of hearing this appeal on 22/11/2007, learned counsel for appellants, C. Boms, Esq., drew the attention of this court to the effect that the fifth issue formulated by the appellants had been withdrawn long before then and that it was struck out. On our careful perusal of the record, this was found to be so. Hence, the fifth issue on page 4 of the brief and the supporting arguments founds on pages 19-23 are struck out and accordingly discountenanced. Appellants will now have five issues and are so renumbered for the purpose of this appeal.

On their part the 1st – 7th and 9th – 12th respondents in their amended brief settled by C.B. Adiele, Esq and deemed filed on 16/3/2007, identified two issues for determination of the appeal as follows:

“(i) Whether the doctrine of estoppel per rem judicata or issues estoppel (sic) or relevant fact under section 56 of the Evidence Act, applied in this suit in view of the fact that the lower court did not place any reliance on exhibits P2, P3, P4, P5 and P7.

Whether the learned trial judge was right when he held that the appellants have failed to prove their case against the respondents.”

The 8th respondent, however, in his brief deemed filed on 8/3/2004 and settled by his counsel M. I. Onochie, Esq, raised one issue for the determination of the appeal as follows:

“Was the learned trial judge right when he refused to attach any weight to exhibits P2, P3, P4 and P5 tendered by the plaintiffs on the ground that the said exhibits cannot be relied upon by them to establish a plea of res judicata, issue estoppel (sic) or an admission against interest against the defendants (sic) in the present proceedings?”

I have carefully considered the issues identified by counsel for the determination of the appeal. In my view, the issues formulated by the appellants are wildly and unnecessary proliferation of issues. However, their issues Nos. 1, 2 and 3 will be considered together with the issues of 1st – 7th and 9th -12th respondents for the determination of this appeal. These are direct complaints against the decision of the lower court.

On issue No.1, learned counsel for the appellants referring to the ruling of the learned trial Judge concerning exhibit P5, submitted that the said trial Judge erred in law when he decided the issue of finality of exhibit P5 based on the nature of the proceedings. That the lower court ought to have discountenanced the nature of the proceedings that produced exhibit P5 and rather concentrate on whether the ruling finally terminate proceedings in consideration of the rights or claims of the parties in the suit. It is submitted that if the ruling did, indeed, finally terminate the proceedings in the said suit, then a final determination in the ruling on any contested issue will constitute issue estoppel if that same issue arises for determination in a subsequent suit; and a final determination of any rights or claims of the parties in the ruling will support the plea of relevant fact under section 56 of the Evidence Act or estoppel per rem judicatam if the same right or claim arises for determination in a subsequent suit. The court is expected to consider the ruling in question in order to discover what was actually decided in the said ruling. Relying on the Supreme Court case of Balogun v. Adejobi & Anor. (1995) 2 NWLR (Pt.376) 131 at 154 D-E learned counsel submitted that a ruling in any interlocutory proceedings by a High Court will support a plea of resjudicata if the following ingredients are present:

(a) The ruling in question puts to an end the substantive claims in the suit.

(b) The court makes a definite holding or even a comment which bears the reasonable inference, that the court is allowing or refusing in limine, the substantive reliefs being claimed in the suit such that it actually puts a finality to the rights of the parties in that suit before the court.

(c) Such a decision, even in a ruling binds the parties, whether it is right or wrong and the only option of the aggrieved party is to appeal against the ruling.

It is submitted that exhibit P5 satisfies all the three ingredients enumerated above.

On exhibit P4, learned counsel for the plaintiffs devoted and proffered lengthy submissions in his issues No.2, 3, 4 and 6. In my view, this is unnecessary repetition of arguments. The crucial issue for determination is whether the appellants did rely on exhibit P4, the judgment in suit No. PHC/64/84, as relevant fact. Referring to paragraph 8 of their amended statement of claim, learned counsel submitted that this pleading clearly shows that the appellants relied on the relevant fact contained in the judgment in the said suit. It is submitted that the holding of the lower court now explained of, apart from being irrelevant, is also perverse as the actual averments of the appellants in paragraph 8 of their amended statement of claim did not support the said holding. However, in abundanti cautela, learned counsel submitted that even in paragraph 8 of the appellants’ further amended statement of claim they still relied on the judgment in suit No. PHC/64/84 as having decided that the respondents are not indigenes of Rumueme. Concerning exhibits P2 and P3, the question is whether the appellants pleaded them as constituting issue estoppel or relevant fact. It is submitted that a calm study discloses that the appellants pleaded those two previous suits as containing admissions against interest on the part of the 7th respondent. It is submitted that in conceiving the pleadings of the appellants in paragraph 8(A) of the further amended statement of claims to be reliance on issue estoppel and relevant fact, the learned trial Judge did misconceive the purport of these pleadings and therefore misdirected himself in law; and as a result of the misdirection he failed to consider the actual reliance the appellants placed on the two judgments. It is contended that this misdirection led trial Judge not to consider a material and significant fact of the case of the appellants; and this had occasioned a miscarriage of justice. Reliance was placed on the case of Olatunji v. Adisa (1995) 2 NWLR (Pt.376) 167 at 183.

It is also contended by the learned counsel for the appellants that upon a proper examination of the proceedings in exhibits P4, P5 and P7, and the present suit, it is not correct that the parties in Suit No. PHC/64/84 are the same as the parties in the present suit.

That in the present suit, the plaintiffs sued for themselves and on behalf of Chiefs and other indigenes of Rumueme community. The defendants are sued for themselves and on behalf of those who purport to be members of Rumueme Council of Chiefs and Owhor holders. It is submitted that it is clear that the capacity in which the plaintiffs in suit No. PHC/64/84 sued is “Rumueme community village council” is not the same capacity in the present suit, that is, “Rumueme Council of Chiefs and other indigenes of Rumueme community”. And the capacity in which the defendants in that previous suit that is “Members of Ogbakor Rumueme Organisation” were sued is quite different from the capacity in which the defendants are sued in the present suit that is “Members of the Rumueme Council of Chiefs, Elders and Owhor Holders.” It is submitted that the only factor the learned trial Judge considered and examined in the suit before coming to the decision that the plaintiffs and defendants in the two suits were different was the manner in which capacities of the parties in the two suits were styled, cited in reliance are two Supreme Court decisions in Faleye & Ors. v. Otapo & Ors. (1995) 3 NWLR (Pt.381) 1 A-B and Abiodun v. Fasanya (1974) 11 SC 61 at 78. It is therefore submitted that in relying on the mere styling of the capacities of the parties in the previous suit No. PHC/64/84 and the present suit to decide that the parties in the two suits are different, the learned trial Judge erred in law.

It is contended that the present defendants all recognise the Rumueme Council of Chiefs and Elders as the traditional ruling body in Rumueme community. That this very body is the one whose membership is common with that of the Ogbako Rumueme Organisation as was judicially determined in exhibit P7 and exhibit P8. It is therefore submitted that the defendants in this present suit belong to the following three categories vis-a-vis the present suit:

(a) Parties in the previous suit as in the case of 3rd, 4th and 5th defendants herein;

(b) Represented members in the previous suit since they were members of the Ogbako Rumueme Organisation; or

(c) Privies to the defendants in the previous suit since they were members or the Rumueme Council of Chiefs and Elders in the previous suit or persons who recognize that council their traditional ruling authority in Rumueme.

It is contended that in any or all of these capacities, the defendants are the same as the defendants in suit No.PHC/64/84. It is therefore contended that the respondents in this suit are bound by the judgment contained in exhibit P4. See Balogun v. Adejobi (supra) at 152 F-G. The sixth issue now No.5 submitted for determination by the appellants is the second issue of the 1st- 7th and 9th-12th respondents.

It is whether the learned trial Judge was right when he held that the appellants have failed to prove their case against the respondents.

This issue concerns original ground 1 and additional ground 6 contained in the notice and grounds of appeal. Learned counsel for the appellants has adopted their arguments and submissions under issue No.4. It has been argued that the parties in this suit are the same or the privies of the parties in suit No. PHC/64/84. It is contended that plaintiffs in the present suit are either same or some of the represented plaintiffs in the previous suit No. PHC/64/84 and the defendants in the present suit consist of some of the same parties in suit No. PHC/64/84 and some of the represented defendants in that previous suit and some of the privies to the defendants in that previous suit. It is therefore submitted that in failing to give the proper effect to exhibit P4, the learned trial Judge erred in law and as a result this occasioned a miscarriage of justice.

Learned counsel for the 1st – 7th and 9th – 12th respondents in their brief of argument has submitted that both the parties, cause of action and claims are clearly different. That the capacities in which the parties sued and were sued are completely different from the suits and rulings manifested in exhibits P2, P3, P4, P5 and P7. That in all these suits, the respondents council was never a party. The principles of estoppel per rem judicata, issue estoppel or relevant fact do not therefore apply in this suit, the subject matter of this apeal. Learned counsel referred to paragraphs 8 and 8A of the appellants’ further amended statement of claim in which they had leaded that the respondents and the 8th respondent are not indigenes f Rumueme. Exhibits P2, P3, P4 and P5 were tendered in proof of his claim. The respondents in response to this pleading of the appellants averred that the parties in these suits are not the same and also that the capacities in which they sued or were sued and the subject matters were different. It is submitted that by the state of the pleadings, the parties joined issues in respect of the relevance of these judgments and or ruling in respect of the issue in dispute in this suit. It is therefore submitted that in the circumstance, the appellants had the onus to prove that these judgments and/or rulings operated as estoppel per rem judicata and/or issue estoppel or relevant facts. It is submitted that the appellants failed to discharge this onus at the lower court and no attempt was made to do so and therefore the learned trial Judge was justified in not placing any weight on the exhibits. Relying on section 54 of the Evidence Act, learned counsel submitted that the only decision of the court that can constitute estoppel per rem judicatam is a final judgment or decision of a competent court.

The second issue formulated by the 1st – 7th and 9th – 12th respondents is whether the learned trial Judge was right in holding that the appellants had failed to prove their case. In their brief, the respondents’ counsel relied on paragraphs 1, 2 and 7 of the appellants’ further amended statement of claim and the defendants’ (except 8th) statement of defence, paragraphs 1, 3 and 7. Learned counsel has submitted that the arguments in this issue as made out by the appellants is a veiled repetition of the argument bothering on the applicability or otherwise of the principles of res judicata. He has therefore adopted his arguments made on issue No.1. He further submitted, however, that the appellants have impliedly admitted that without the applicability of the principle of res judicata, issue estoppel or relevant fact under section 56 of the Evidence Act that the judgment, the subject matter of this appeal is in order. After referring to the evidence of the key witnesses for the appellants, learned counsel finally submitted that the findings of the lower court are in accordance with the evidence before the court and therefore correct. That the appellants did not tender or adduce any credible evidence before the lower court to have entitled them to have judgment entered in their favour.

Learned counsel for the 8th respondent on his part submitted that the learned trial Judge was right in refusing to place any reliance on exhibits P2, P3, P4 and P5 tendered by the plaintiffs. It is submitted that in paragraphs 8 and 8A of their further amended statement of claim, the plaintiffs pleaded that the defendants are not indigenes of Rumueme community. That the plaintiffs pleaded the following documents in proof of that fact:

(a) Ruling delivered on the motion for interlocutory injunction filed by the plaintiffs. The Ruling was delivered on 16/1/86;

(b) Judgment on appeal against the said ruling delivered by the Court of Appeal Enugu Division on CA/E/40/86;

(c) Final judgment in PHC/64/84;

(d) Ruling in suit No. PHC/90/86;

(e) Judgment of the trial court in suit Nos. PHC/16/77 and PHC/17/71

It is contended by the learned counsel that exhibits P2, P3, P4 and P5 cannot be relied upon to establish a plea of estoppel per rem judicatam or as a relevant fact under section 56 of the Evidence Act.

It is finally submitted that the trial judge was right when he failed to place any reliance on exhibits P2, P3, P4 and P5.

A party can plead a previous judgment in support of his claim under section 55 (now section 56) of the Evidence Act, Laws of the Federation, 1990. That is exactly what the appellants as plaintiffs have done in the instant case.

However, section 54 otherwise called res judicata provides:

“Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case. Actually decided by the court, and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.”

The section is intended to bring an end to litigation. In Bonny v. Yougha (1969) 1 All NLR 396 at401, the Supreme Court, considering the section said:

“The doctrine which is expressed in the legal maxim “interest reinplicae ut sit finis litium, ensures that rights of litigants are set to rest.”

See also Agu v. Ikewibe (1991) 3 NWLR (Pt. 80) 385 at 412; Iyaji v. Eyigebe (1987) 3 NWLR (Pt. 61) 523 at 533. in Madukolu v. Nkemdilim (1962) 1 ANLR 587 at 588; (1962) 2 SCNLR 341, the court stated its twin maxim of nemo debat bis vexaris procadem cause, which ensures that no one is proceeded against the second time if it is proven that the present action is for the same cause which has been decided by a court of competent jurisdiction.

For the plea of resjudicata to apply, it must be proved that the parties and subject matter are the same. Where the subject matter is not the same, but the parties are, the plea will not be applicable. In Dokubo v. Omoni (1999) 8 NWLR (Pt.616) 647 at page 659-661, the previous matter between the same parties was for trespass, whereas the new action was founded on title. The Supreme Court held that the plea was inapplicable. This is because the same evidence will not prove the two subject matters. The issues that often arise are questions of facts that must be established by evidence by the party that wants the court to apply the plea: See Ezeokonkovo v. Okeke (2002) II NWLR (Pt.777) 1 at 27. Where the Supreme Court per Iguh, JSC reinstates the proof of 5 elements for the applicability of the plea to succeed as follows:

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

Unless the above pre-conditions are established the plea cannot be sustained. I wish to comment briefly on the legal position of parties as far as this doctrine is concerned. Parties in the subsequent action may be privies to the previous action. Privies in law are those who derive title from and also claim through that party. Privies are in three categories or classes:

(a) privies in blood;

(b) privies in law; and

(c) privies in estate.

The first are blood relations like ancestors and heirs; the second and third are executors, administrators, vendors and purchasers. See Coker v. Sanyaolu (1976) 9-10 SC 203 at 233. In Ekpoke v. Usilo (1978) 6-7 SC 187 at page 200 – 2001, the Supreme Court per Obaseki, JSC stated the legal effect of privy and its exception to the doctrine of natural justice principle, that every man must be heard on legal principle affecting him. He said that the general rule is that no person is to be adversely affected by a judgment in an action to which he was not a party; because of the injustice in deciding an issue against him in his absence. But this general rule admits of two exceptions; one is that a person who is a privy with the parties, a “privy” as he is called is bound equally with the parties, a “privy” as he is estopped by res judicata; the other is that a person may have so acted as to preclude himself from challenging the judgment in which case he is estopped by his conduct. Nigerian law recognises that the conduct of a person may be such that he is estopped from relitigating the issues all over again. This conduct sometimes consists of active participation in the proceedings. For instance, when a tenant is sued for trespass on his neighbour’s land and he defends it on the strength of the landlord’s title and does so by the direction and authority of the landlord. On other occasions, the conduct may consist of taking actual benefit from judgment in the previous proceedings. See In re: Lart Wilkinson v. Blades (1896) 2 Ch. 788; Talabi v. Adeseye (1972) 8-9 SC 20; and Okoromaka v. Odiri (1995) 7 NWLR (Pt.408) 411 at 437.

So far is the exposition and enunciation of the doctrine of estoppel per rem judicata by the court and legal authorities, the question in the appeal herein, is whether the doctrine applies in this suit in view of the fact that the court below did not place any reliance on exhibits P2, P3, P4, P5 and P7. The appellants in paragraphs 8 and 8A of their further amended statement of claim had pleaded thus:

“8. The defendants on record are not indigenes of Rumueme as has been judicially pronounced in suit No. PHC/64/84 which ruling and the order on the interlocutory injunction was delivered and drawn on 16/1/86. The defendants therein appealed to the Court of Appeal Enugu in Appeal No. CA/E/40/86 against the said ruling.

The said Court of Appeal Enugu dismissed the said appeal No. CA/E/40/86. The judgment in the substantive suit in PHC/64/84 was delivered on 3/7/87 and in the ruling in suit No. PHC/90/86, between Chief O.N. Nsirim and Edmund O.I. Akaninwo and Frand O. Amadi (the 1st defendant herein). The plaintiffs will at the trial of this case rely on the judgments, rulings and order.

8A. The plaintiffs shall further rely on the judgment in suit No. PHC/16/71 between C.O. Chinda and Madam Akaninwo and 4 Ors. and PHC/17/71, between C.O. Chinda and Chief Tobias Elude and 4 Ors., wherein the plaintiff therein (herein the 7th defendant) as the publicity secretary of the Ogbako Rumueme was exclusive to the descendants of Apara man and that the composition or membership of the Ogbako Rumueme was exclusive to the descendants of Apara. The plaintiffs shall rely on the judgments in the said suit No. PHC 16/71 and PHC/17/71 which said suits went on appeal to the Supreme Court in SC/286/74 and SC/287/74 respectively but were withdrawn by the plaintiff/appellant therein (herein the 7th defendant).”

In proof of the above averments the appellant’s tenders exhibits P2, P3, P4 and P5. The respondent (apart from 8th respondent) in response to these averments has in paragraph 8 of their statement of defence averred as follows:

“8. The defendants deny paragraph 8 of the statement of claim and put the plaintiffs to the strictest proof thereof. In further answer to the averments contained in paragraph 8 of the statement of claim, the defendants aver and shall contend at the trial of this suit that the parties in suit No. PHC/64/84 and the capacities in which they were sued in that suit are different from the present suit. Moreover, the judgment of the trial court is being contested on appeal in the Port Harcourt Division of the Court of Appeal No. CA/PH/12/93 which appeals is still pending. The defendants shall also rely on the Eberra Council of Chiefs, Elders and Owhor-holders Almanac, 1992.”

The learned trial judge held at page 255 of the record that plaintiffs pleaded section 55 of the Evidence Act and held thus:

“To be pleaded as relevant facts under section 55 of the Evidence Act, the conditions that will make it applicable are the same as those that allows a defendant to plead it as estoppel per rem judicata or to a plaintiff to plead it as estoppel in rebuttal. Such a plea therefore can be maintained only when the same question as has been judicially decided, is again raised between the same parties. If an action is brought and the case is discussed (sic) in its merits and a final judgment is obtained by either party then the parties are concluded and cannot canvass the same question again in another action interparties.”

Learned trial Judge then went to consider the doctrine and after elucidation of the law and examining the previous judgments and ruling tendered by the appellants, held at page 288 of the record as follows:

“From all I have considered above, none of the preconditions for the application of previous suits (i.e. exhibits P2, P3, P4, P5 and P7) pleaded by the plaintiffs in this suit is present. The law is that the plea of estoppel per rem judicatam will fail immediately any of the preconditions for its application is absent. See Cardos v. Daniel supra. I therefore hold that the plea of the plaintiffs of the said previous suits against the respondents herein has failed.”

The appellants had contended that the learned trial judge erred in law when he decided the issue of finality of exhibit P5 based on the nature of proceedings. According to them, the lower court ought to have discountenanced the nature of the proceedings that produced exhibit P5 and rather concentrate on whether-

(a) The ruling finally terminated the said suit.

(b) The ruling finally determined any of the issues being contested in the suit.

(c) The ruling finally determined any of the rights or claims of the parties in the said suit.

I have critically taken a hard look on all the issues (1-5) of the appellants. I agree with the respondents’ counsel that the issues can conveniently be regarded as bordering on the doclline of estoppel per rem judicata, issue estoppel or relevant fact under section 56 of the Evidence Act. It was in the course of the proceedings the lower court admitted in evidence, exhibits P2, P3, P4, P5 and P7; all tendered by the appellants.

I commend the ingenuity of the learned counsel for the respondents who in their brief itemised the exhibits for the purposes of clarity. I will do the same.

Exhibit P2 is the judgment of the High Court of Rivers State in suit No. PHC/16/71: C.O. Chinda v. Madam Salome Akininwo & 4 Ors. The following facts are exposed. The parties – the plaintiff in this suit is C.O. Chinda. He sued in his personal capacity. The defendants defended the suit in their personal capacities. The appellants herein in the instant case were not parties in that suit.

The respondents herein are also not parties in this suit. The parties in the two suits therefore are not the same.

The claims – in exhibit P2 was for damages and the cause of action was libel. In the instant suit, the cause of action is for a declaration that the respondents are not Chiefs of Rumueme community within the Obio/ Akpor Local Government Area of Rivers State and do not have the mandate or authority of the people of Rumueme to represent them at any level of responsibility. That the respondents do not belong to the Rumueme Council of Chiefs, Rumueme, Rumueme Village/Community Council and have no role to play in the traditional administration of the Rumueme community.

That there is no traditional institution in Rumueme community known as Rumueme Councils of Chiefs, Elders and Owhor-holders.

Exhibit P3 is the proceedings and judgment in suit No. PHC/17/71. The parties were C.O. Chinda v. Chief Tobias Elude & 4 Ors. The following facts also emerged in the exhibit. The plaintiff sued in his personal capacities and the defendants defended in their personal capacities. The appellants herein in the instant case were not parties in that suit. The respondents herein were also not parties.

The cause of action here was also libel and the claim was for damages for libel.

Exhibit P4 is the judgment of the High Court in suit No. PHC/64/84. The parties in this suit were Chief O.N. Nsirim & Ors as plaintiffs sued on behalf of themselves and other members of Rumueme community Village Council. The defendants were Edmund I.O. Akaninwo & Ors. The defendants were sued as members and representatives of Ogbakor Rumueme organisation. The cause of action and claim was for a declaration that the defendants were non-indigenes of Rumueme. Here again, both parties and cause of action are different from the present suit.

Exhibit P5 is a ruling in suit No. PHC/90/96 which is predicated on an application by the plaintiff who sued in his personal capacity and the defendants in their personal capacities. The suit was withdrawn by the plaintiff and so no rights were conferred on him in this suit. The defendants did not in any way incur any liabilities.

The appellants have relied heavily on this exhibit P5 in their contention that the learned trial Judge erred in relying on the nature of the proceeding. They contended that the learned trial Judge ought to have considered whether the ruling terminated the said suit or any of the issues being contested in the suit or whether the ruling finally determined any of the rights or claims of the parties in the suit. The learned trial Judge while dealing with exhibit P5 held that exhibit P5 was a ruling on an application brought by plaintiff therein, Chief O.N. Nsirim to be allowed to discontinue the action against Edmund Akaninwo and Frank O. Amadi. That the court granted the application and struck out the action with cost in favour of the defendants therein. He therefore held that this is not a final judgment and cannot be relied on by the plaintiffs under section 55 of the Evidence Act as constituting issue estoppel. In their brief, page 5, paragraph 104, the appellants had contended based on the view expressed by Ogundare, JSC (of blessed memory) in the case of Balogun v. Adejobi & Anor. (1995) 2 NWLR (Pt.376) 131 and 154 to the effect that a ruling in any interlocutory proceedings by a High Court will support a plea of res judicata if the ruling puts an end to the substantive claims in the suit. The appellant had further contended that since some of the learned parties in both proceedings are the same. I agree with the learned counsel for the respondents that this is a misrepresentation of the law. The law is that a judgment obtained against a party when sued in a particular capacity is not binding on the person when sued in another capacity. See the cases of Cardoso v. Daniel (supra); Aborisade v. Abolarin (2000) to NWLR (Pt.674) 41 at 52 and Ishie v. Moivanso (2000) 13 NWLR (Pt.684) 279 at 292. I have observed before now that the parties in exhibit P7 are clearly different from the instant suit. The causes of action in both suits are different. The causes of action in both suits are different. The cause of action in exhibit P7 is whether or not the defendants are indigenes of Rumueme whereas in the present suit the cause of action is as between the appellants and the respondents who are entitled to represent and administer Rumueme. Also exhibit P7 is an interlocutory ruling which is not a final judgment and did not confer any rights on the appellants.

In the instant suit, the subject matter of the appeal, the appellants had sued the respondent because the respondents had claimed to be chiefs and representing Rumueme community. The appellants had therefore sought the intervention of the court to stop the respondents from claiming to be chiefs and representatives of Rumueme community. The parties’ cause of action and claim are clearly different. The capacities in which the parties sued and were sued are completely different from suits. And rulings manifested in exhibits P2, P3, P4, P5 and P7, in all these suits the respondents were never a party. The principle of estoppel per rem judicata, issue estoppel or relevant fact, do not apply in this suit, the subject matter of this appeal.

By the state of the pleadings, the parties joined issues in respect of relevance of these judgment and/or ruling on the issue in dispute in this suit. In the circumstance, the appellants had the onus to prove that these judgments and/or rulings operated as estoppel per rem judicata and/or issue estoppel or relevant facts. The appellant was even made to do exactly that. The learned trial Judge was therefore justified in not placing any weight on these exhibits. From the provisions of section 54 of the Evidence Act, the only decision of the court that can constitute estoppel per rem judicata is a final judgment or decision of competent court.

Judgment which binds a party in one proceeding cannot be made to bind another party who is sued with that particular party in another suit. For if it is so, this will defeat the doctrine of audi alteram partem and runs counter to the principles of res judicata. For estoppel per rem judicata to apply, the parties, issues and subject matter must be the same in the previous suit as in the suit in which it is raised. The same principle applies to a party who is relying on a previous judgment as a relevant fact under section 56 of the Evidence Act. It has the same effect of implication in law as the principle of res judicata. Both do not allow fresh evidence to be led on an issue that has already been determined by a court of competent jurisdiction.

The appellants had contended in their brief that they relied on exhibits P2 and P3 as an admission against interest. The appellants placed reliance on paragraphs 8 and 8(a) of their further amended statement of claim. I do not see the basis for this contention. The plaintiff, in exhibits P2 and P3, who is the 7th respondent in this appeal did not claim to have made the statement now sought to be relied upon on behalf of the respondents in this appeal. The appellants did not lead any evidence to the effect that the 7th respondent made the statement on behalf of the respondents. The record does not show that at the time these suits were filed and determined, the 7th respondent did claim that he was a Chief or a member of the respondents Council. See section 20(2) of the Evidence Act. It provides:

“Statements made by parties to suits suing or sued in a representative character, are not admissions unless they were made while the party making them held that character.”

This court in Godwin Inko-Tariah v. Goodhead (1997) 4 NWLR (Pt.500) 453 at 478, interpreting this subsection held that a statement made by a person before he assumed a representative capacity cannot bind the group after he assumed that capacity except he later adopted it. See also Anthony Idesoh v. Chief Paul Ordia (1997) 3 NWLR (Pt. 491) 17 at 27 – 28 and the English case of The Trustee of the Property of New, Prance and Garrard v. Hunting (1897) 1 Q.B. 607 at 611. In the case of admission made by the party before he was made a trustee was held not to be admission against beneficiaries except they subsequently adopt. It is to be noted however, that a party is entitled in law to correct in a subsequent proceeding any version of traditional history or evidence which he gave in an earlier proceedings due to mistake or out of ignorance.

See the cases of Abossey Okai II v. N. Ayikai II 12 WACA 31 at 32, Seismograph Services Ltd v. Chief Eyuafe (1976) 9-10 SC 135 at 145.

I agree with the learned counsel for the 1st – 7th, 9th – 12th respondents that by the principle of law laid down in the above cases, even if the 7th respondent had stated in his evidence in exhibits P2 and P3 as regards the traditional history of Rumueme that he is an Apara man, either the 7th respondent or any other respondent sued along with him can correct that mistake or ignorance. It would appear this is what the 4th respondent did in his re-examination, in this suit when he testified at page 213 of the record as follows:

“I said I attended Apara Council of Chiefs meeting sometimes ago, that was some years back and I attended it on my own. I did not represent anybody. At that time, it was in ignorance of the true history of Rumueme that I attended it. When I became aware that I was making a mistake, I had to stop, and what helped me most was an elderly man at Isiokpo, Wigwe, a retired police officer who gave me some history of Rumueme particularly Erne and Rumueme and he told me Rumueme is not part of Apara that we came from Isiokpo.”

An appellate court should be concerned with whether the judgment appealed against is right or wrong not whether the reasons are right or wrong. In the case of Ndayako v. Danforo (2004) 13 NWLR (Pt.889) 187 at 220, the Supreme Court held that:

“An appellate court is only concerned with whether the judgment appealed against is right or wrong not whether the reason therefore are. Where the judgment of the court is right but reasons are wrong, the appellate court does not interfere. It is only where the misdirection has caused the court to come to a wrong conclusion that the court will interfere”.

See also Ukejianya v. Uchendu (1950) 13 WACA 45 and Abaye v. Ofili (1986) 1 NWLR (pt.15) 134 at 179.

On this issue No.1, I must observe that learned counsel for the 8th respondent apart from this issue he set out and couched in most in elegant style all his arguments and submissions are adoption of those of the learned counsel for the 1st – 7th and 9th-12th respondents.

He has submitted that the learned trial Judge was right in refusing to place reliance on exhibits P2, P3, P4 and P5 tendered by the appellants in the proceedings that led to this appeal. I have carefully considered the submission of the learned counsel in respect of exhibits P2, P3, P4. I agree with his views and submissions which are similar to those of the other respondents already dealt with above by their counsel. However, I find the following submissions of the learned counsel for the 8th respondent quite illuminating, I agree with him that the 8th respondent was neither a party to exhibit P4 nor a privy to any of the parties to Exhibit P4. He is neither a privy in blood to the 1st defendant in exhibit P4, as the relation of heir and ancestor does not exist between the 8th respondent and the 1st defendant in exhibit P4. It is only the direct children of the 1st defendant in exhibit P4 that are privies in blood to the 1st defendant in exhibit P4. The ancestry of the 8th defendant was never in issue in exhibit P4. 1st defendant in exhibit P4 never defended that suit as representing members of Akaninwo family. Nowhere in exhibit P4 was any finding of fact that members of Akaninwo family are non-indigenes of Rumueme. I also agree with the learned counsel that the judgment in exhibit P4 is not binding on the 8th respondent.

The appellants in their brief have argued that exhibit P4 without more was sufficient to entitle them to judgment. I do not think so.

Counsel in this case, both agreed that the two issues that arose for determination in this case at the lower court were-

(a) Whether the defendants are indigenes of Rumueme community, and

(b) Whether the defendants are Chiefs and representatives of Rumueme community. See pages 230, 233 of the record.

It is clear that the second issue for determination was never considered at all in exhibit P4. PW1 and PW2 have testified that non-indigenes can be Chiefs and representatives of Rumueme community.

Appellants in order to succeed must go further to show that they are accredited representatives of Rumueme community. On the issue of who as between the appellants and the respondents are accredited representatives of Rumueme community, the learned trial Judge held that the traditional authority of Rumueme lies in Rumueme Council of Chiefs, Elders and Owhor-holders and that its composition is drawn from the chiefs of the village or families in Rumueme. This finding is vital. It subsist. Learned consist has further explained the irrelevance of exhibit P5. This is the ruling in PHC/90/86. It was sequel to an application for leave to discontinue filed by the plaintiff in that case. On the plaintiffs’ own showing, the application was predicated on the facts that the plaintiffs in PHC/64/84 have obtained judgment in that suit. Prosecuting PHC/90/86 in the plaintiff’s view became unnecessary. Careful study of exhibit P5 shows that the parties therein are not the same as parties in the instant proceedings. Neither the Rumueme Council of Chiefs, Elders and Owhor-holders, the respondents herein nor Rumueme council of Chiefs and other indigenes of Rumueme were parties to that suit.

That suit to my mind decided nothing, as the issues distinctly raised therein were not ruled upon by the court. That ruling is therefore of no assistance to the appellants.

It is in view of the foregoing, that I must resolve the issue No.1, in favour of the 1st – 12th respondents.

Issue No.2, is whether the learned trial Judge was right in holding that the appellants failed to prove their case. It is the contention of the respondents that the appellants did not tender or adduce any credible evidence before the lower court to have entitled them to have got ten judgment entered in their favour.

The appellants in their further amended statement of claim pleaded at paragraph 1 that they are Chiefs and indigenes of Rumueme community and brought this action for themselves and as representing members of the Rumueme Council of Chiefs and other indigenes of Rumueme. In paragraph 2, appellants pleaded that the defendants reside at Rumueme and are sued for themselves and on behalf of all members of the Rumueme Council of Chiefs, Elders and Owhor-holders. The respondents vehemently deny paragraph 1 of the statement of claim and put the appellants to the strictest proof. In paragraph 3, the respondents shall at the trial lead evidence to show that they are the legitimate and accredited Chiefs, Elders and Owhor-holders of their respective families and villages in Rumueme community. I have held that there was no basis for the applicability of principle of res judicata to this matter. Appellants have impliedly admitted that without the applicability of the doctrine that the judgment, the subject matter of this appeal is in order. There has been no scintilla of evidence led by the appellants at the lower court to have tilted the scale of justice in this case in their favour. In civil causes or matters, the burden of proof lies on the party asserting the existence of the facts under section 35 of the Evidence Act. For he who asserts must prove. See Famuroti v. Agbeke (1991) 5 NWLR (Pt.189) 1 at 13. The burden of proof prescribed by section 136 is on the party who will lose if no evidence at all is proffered by either side. See Are v. Adisa (1967) 1 All NLR 304 at pages 161-2. The provisions of section 137 place the burden of making out a case in civil matters on the plaintiff and a defendant who is of the view that the plaintiff has failed to satisfy the requirements of the section, is entitled to rely on the evidence of the plaintiff without calling any evidence.

In trying to prove their origin, the appellants as they pleaded testified that Ebara is not the only ancestor of all the indigenes of Rumueme. The other ancestors are Oparaeze and Eketa. As for the status of 1st respondent, PW 1 testified that at page 188 of the record as follows:

“I know one Chief Frank Owhonda Amadi. He is the 1st defendant. I deny that Chief Frank Owhonda Amadi signed exhibit D2 as the secretary to the community. I can see that in exhibit D2 it is written showing that Chief rank Owhonda Amadi as the secretary to the community…”

For the purpose of clarity, exhibit D2 is a memorandum submitted by Rumueme community to the Government of Rivers State. It is the contention of the respondents that there is a clear contradiction in the pleading of the appellants and the evidence they liked in court regarding their origin as indigenes of Rumueme. I am of the opinion there is such material contradiction that goes to the root of the appellants’ case. By their pleading, the appellants have sought to show that it is only the descendants of Eberra that are indigenes of Rumueme and the respondents not being the descendants of Eberra are not indigenes of Rumueme; and they cannot therefore be Chiefs and/or representatives of Rumueme. In complete contradiction to their pleading, the appellants admitted that there are indigenes of Rumueme who are not descendants of Eberra. From his testimony, it became clear that even PW1 himself is not a descendant of Eberra but Anwanor. PW1 testified under cross-examination at page 186 of the record as follows:

“I am a Chief. I am a village Chief representing Oroakwor village in Rumueme. I have no stool”

PW2 on his part under cross-examination at page 195 testified as follows:

“There is no relationship between Akwo and Ebarra (sic) Akwo is the first son of Oparaeze and that is why he is a Rumueme man. Oparaeze had some other sons apart from Akwor. One of them is Rukani, another is Ogologo. I agree that PW1 is a descendant of Akwo. He can never be made Nyenweli Rumueme.”

I agree with the learned counsel for the respondents that the evidence of the appellants, besides the contradiction highlighted above is not credible to have entitled them to have got ten judgment entered in their favour. Appellants pleaded they were Chiefs. They did not call any independent witness to corroborate their claim that they are Chiefs in Rumueme. It is not shown how and when they became Chiefs. In Adesokan v. Adegorolu (1991) 3 NWLR (Pt. 179) 293, this court, per Akpabio, JCA (of blessed memory) relying on the cases of Momoh v. Olotu (1970) 1 All NLR 117 and Mrs. Akintola v. Mrs. C.F.A.D. Solano (1986) 2 NWLR (Pt.24) 598 agreed with Ibidapo, J, who had held in the latter case as follows:

“We are of the view that it is not enough for the plaintiff to state he is a member of the family, he has to state further that he has an interest in the chieftaincy title, and furthermore state in his statement of claim how his interest in the chieftaincy title arose. Membership of a chieftaincy family is not enough as not all members of chieftaincy family are eligible for chieftaincy.”

On the other hand, the respondents through their witnesses gave vivid evidence of their origin and the respective villages they represent in Rumueme. For instance, they testified that these villages made them Chiefs, which entitled them to be members of the respondents’ council. DW3 identified 1st respondent as his uncle and the head chief of Oro-Agbogu community in Rumueme. DW3 is the son of late Chief John Wobo who PW2 had admitted was a Rumueme man.

The learned trial Judge after examining the evidence of both parties and the exhibits tendered naturally dismissed the case of the appellants and made specific declarations in favour of the respondents thus:

“As I observed above, the plaintiffs who asserted did not give evidence or tender just one thing which is supportive of their mere assertion in testimonies. I, therefore, do not believe the PW 1 and PW2 that the plaintiffs on record are Chiefs of Rumueme. I do not believe that the defendants are no Chiefs of Rumueme.

I rather believe DW1 and DW2 that the respondents are some of the members of the Rumueme Council of Chiefs, Elders and Owhor-holders.”

There can be no doubt that there was abundant evidence before the learned trial court leading to the conclusion reached by him above. It is not shown that this decision is perverse and has occasioned a miscarriage of justice. It is not the practice of the appellate court, and indeed, this court to interfere with findings of fact of trial courts which had the unique opportunity of seeing and hearing the witnesses that gave evidence and observing their demean our, except where such findings are perverse. See Incar Ltd v. Adegboye (1985) 2 NWLR (Pt.8) 453; Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360 and Archibong v. The State (2004) 1 NWLR (Pt. 855) 488 at 510-511.

For the above reasons, this appeal fails and it is hereby dismissed. I award N30,000.00 costs in favour of the respondents.

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Other Citations: (2008)LCN/2933(CA)