Chief H.A.B. Don-pedro & Ors V. Francis William Dappa & Ors (2002)
LawGlobal-Hub Lead Judgment Report
JAMES OGENYI OGEBE, J.C.A.
The appellants who were plaintiff’s in the court below sued the respondents in the High Court of Rivers State holding at Degema claiming a piece of land. Both parties were fighting the case in representative capacities. Pleadings were exchanged and the respondents brought a motion dated 10th of January, 1987 which reads thus:
“MOTION ON NOTICE
ORDER 25 RULE 20 HIGH COURT
RULES 1987 INHERENT JURISDICTION
TAKE NOTICE that this Honourable court will be moved on Tuesday the 8th of March. 1988 at the hour of 9 0’clock in the forenoon or so soon thereafter as Defendants/Applicants or Counsel on their behalf can be heard for an order of the court striking out the plaintiffs’ Statement of Claim and demission (sic) the of the process of the court for the subject matter of the suit and the interests of the parties to this suit had been previously determined by competent courts and the same is now on appeal before the court of appeal the result of which will affect and dispose of the subject matter in these proceedings and for such order or further orders as the court may deem fit to make in the circumstances.”
Attached to the affidavit were several judgments delivered by several courts. The respondents filed a counter affidavit and the matter was vigorously argued before the trial court which gave its ruling on the 14th of June, 1983 in which it struck out the appellants’ statement of claim and dismissed the action on the grounds that the matter was res judicata.
Dissatisfied with that ruling the appellants have appealed to this court and accordance with the rules of the court the learned counsel for them filed a brief argument and identified two issues for determination as follows:
“1. Whether Learned Trial Judge was right to dismiss the Plaintiffs suit without receiving evidence relating to the land in dispute and without receiving the respective survey plans in evidence.
2. Whether the Court can raise the defense (Preliminary objection) of Estoppel by standing-by suo motu in the manner it did and rule upon it without giving the parties the opportunity to address it.”
There is only one issue in this appeal and that is the first issue formulated by the appellants which agrees with the sole issue formulated by the respondents. The second issue formulated by the appellants in my view is red herring.
The trial judge at page 272, lines 14-18 of the records made a statement as follows:
“It is a case between the two families – Dappa and Don Pedro and if there is no estoppel per rem judicata against the people of Don-Pedro family, there is an estoppel by standing by.”
It is clear that the clause “there is an estoppel by standing by,” is merely a side comment. The court unequivocally found that there was estoppel per rem judicata, but added that the doctrine of estoppel by standing by also applied. It was not necessary for the court to make that addition. It is a mere slip that did not affect the justice of the case. It is trite law that it is not every slip of the lower court that will result in an appeal against the decision being allowed. It is only mistake that have been shown to have affected seriously the decision appealed against that will result in the appeal being allowed. See the case of IBWA LTD v. PAVEX International Co. Nig. Ltd (2000) 7 NWLR (pt.663) 105 r.11.
On the first issue the learned counsel for the appellants submitted that the trial judge was wrong in upholding the motion of the respondents to dismiss the action on the principle of estoppel per rem judicata by looking the plans attached to the pleadings of the parties which were not yet in evidence before the trial court and fell into the same error which was condemned by the supreme court in the case of Chief M.Y. Jack v. Deliver Igonikon Harry (1978) 6-7 SC 159.
In reply the learned counsel for the respondents submitted that the trial judge extensively examined the previous cases tendered in support of the motion and rightly concluded that the principle of rem judicata applied as the parties, claim and subject matter in the present proceedings are the same as those in the previous one which had been conclusively determined by a court of competent jurisdiction.
The trial judge did his best to analyze the parties in the previous case vis-Ã -vis the present case and the issues resolved in the previous case vis-a-vis the issues in dispute in the present case, but it would appear that the court did not have sufficient materials from the previous case to determine the question of whether the disputed land in the earlier case is the same as the present case and went into elaborate comparison of the previous case with the plans attached to the pleadings in the present case to determine whether the disputed land is one and the same. The trial court resolved this matter thus at pages 274-275 of the record of appeal:
“The Plaintiffs in this case have shown in their plan the area verged “purple” as the land in dispute in respect of Appeal case No. D/16.A/63 and the land in dispute in this case is verged Red and it stretches from the area verged purple to the waterside.
In the Defendants’ plan both the area which the Plaintiffs verged purple and Red are termed the land in dispute.
If one looks at the Plaintiffs plan, it will be difficult for anyone to agree with them that the area verged purple is the whole land litigated upon in EXHIBIT “A”.
This is so because in Inspection Note above, it is stated as follows:-
“On the East an “Odumdum” tree which was alleged to have been cut down by the Defendants was shown as a boundary, and same was extended to a palm tree at the waterside.
This clearly shows that the land litigated upon in EXHIBIT “A” extended to the waterside and this can not of course tally with the land which the Plaintiffs in this case verged purple.
From the description in EXHIBIT “A”, the land litigate upon tallies with the verged Green by the Defendants in their plan and also the whole area verged purple and Red by the Plaintiffs in their plan.
In the two cases, the Defendants family calls the land “William Devenport Dappa Kiri” while the plaintiffs call it “Asemebo Poku Kiri”. It is one and the same land that both sides are talking about.
The law is that “So long as the whole parcel of land is described by name in a judgment every inch of the land so named is bound by the judgment.”
I therefore hold that tire subject matter in this case and that in EXHIBIT “A” are the same.”
It would appear that the trial court failed to realize that the plans of both parties which were attached to their pleadings had not been tendered before it as evidence and it had no business looking at them to reach its conclusion. This is precisely what the Supreme Court said should not be done in the case of Chief Jack v. Harry (supra).
In that case the plaintiffs brought an action in the Rivers State High Court for declaration to title to a piece of land. The defendant in a preliminary objection set up defence of res judicata. At the hearing of the preliminary objection only two exhibits which were judgments of Kalabari Native court and Magistrate’s court Degema were tendered. No plans had yet been tendered to identify the disputed land. The trial judge ruled that the plea of res judicata was made out and dismissed the claim. On appeal to the supreme court by the losing side, the supreme court set aside the decision of the lower court on the ground that until evidence was laid about the land in dispute before it and the plan attached to each pleading received in evidence, it was impossible for the court to decide on the preliminary objection that the subject matter was the same.
Applying the principles of that case to the pre sent appeal I am satisfied that the trial Judge was wrong in dismissing the appellant motion when there was no proper evidence before it about the identity of the disputed land at that stage. The survey plans attached to the pleadings had not been received in evidence and the trial court by looking at them fell into grave error. The mere fact that the trial court had to resort to looking at the plans attached to the pleadings was conclusive fact that the judgments tendered by the respondent in support of res judicata could not clearly determine the issue.
Accordingly I allow this appeal and set aside the ruling of the trial court. In its place I dismiss the respondents’ motion before that court. I remit the case to the lower court for retrial before another judge. Happily Opene, J., (as he then was) is now in the court of Appeal and will not have a chance of re-hearing the case. The appellants are entitled to costs of N5.000.00 against the respondents.
Other Citations: (2002)LCN/1129(CA)
