Chief Samuel Akpan Nkanu & Ors. V. Chief Robert Onun & Ors. (1977)

LawGlobal-Hub Lead Judgment Report

SIR UDO UDOMA, J.S.C.

This is an appeal from the High Court of the Cross River State, Calabar Judicial Division, Holden at Calabar. It is against the judgment of the High Court dated 4th March, 1975 given in a consolidated action.

In Suit No. C/10/1972, Chief Samuel Akpan Nkanu and Chief Ennang Edogi for themselves and as representing the people of Igbo Imabana claimed against Chief Robert Onun for himself and as representing the people of Assiga (Ayiga) and Chief Uket Okoi for himself and as representing the people Ekuri, the following:-

“1. A decaration of title to all the several pieces or parcels of land known as and called “Likpanko”, “Kepotodo”, “Ekpolo-Ito”, “kekpakola”, “Ito-Emego”, “Kokobili”, “Leveba”, “Alolibo”, “Igoli”, “Alolibo”, and “Edeligbo” respectively situate at Igbo Imabana in Obubra Division of the South Eastern State of Nigeria which is within the Calabar Judicial Division.”

“2. 300 Pounds general damages for trespass in that sometime in 1971 and again January, 1972, the Defendants without leave or licence of the Plaintiffs broke and entered parts of the several pieces or parcels of plaintiffs’ lands, brushed same with a view of planting on them.”

3. “A perpetual injunction to restrain the Defendants, their people, their servants, agents and all other persons claiming through them from interfering with the plaintiffs’ possession, enjoyment and use of the several pieces or parcels of land.”

And in Suit No. C/19/1972 Chief Robert Onun and Chief Uket Okoi for themselves and as representing the people of Assiga (Ayiga) and Ekuri turned round and also claimed against Chief Samuel Akpan Nkanu and Chief Ennang Edogi for themselves and as representing the people of Igbo Imabana as follows:-

“1. DECLARATION of title of ownership to all the continuous pieces or parcels of land known as and called “Esenaden”, “Ebiden”, “Ekosonade”, “Odiokpone”, “Apilowi”, “Livako”, “Kesekola”, “Osegwa”, “Akama”, “Likpanko”, “Ekolikunide”, “Okolikili”, and “Gawene” respectively situate at Ayiga and Ekuri in Obubra Division within the jurisdiction of this court.

“2. 500 Pounds General and Special damages for trespass in that the Defendants on January, 1964 and April, 1964 and on 29th February, 1972 and 1st March, 1972 acting in concert broke and entered the said piece of land and cleared portions of the land, cultivated the same planting crops thereon and cut down palm trees and raffia branches from raffia palms on the land.

“3 A PERPETUAL INJUNCTION restraining the Defendants from entering the said pieces or parcels of land in any other manner whatsoever interfering with the said pieces and parcels of land without the consent of the plaintiffs.”

In obedience to orders of the High Court made in that behalf pleadings were duly filed and delivered in each case. As part of their defence, the defendants in Suit No. C/10/1972 raised in their Statement of Defence the special pleas of res judicata, estoppel, laches and aquiescence, ownership and long continuous possession in answer to the averments contained in the Statement of Claim filed by the plaintiffs therein. No such pleas were raised by the defendants in Suit No. C/19/1972. On 3rd December, 1973, after the close of pleadings both suits were by consent consolidated and heard together. The plaintiffs in Suit No. C/10/1972 and defendants in Suit No. C/10/1972, appellants herein, being thereafter designated and treated throughout the proceedings in the High Court as the plaintiffs, and the defendants in Suit No. C/10/1972 and plaintiffs in Suit No. C/19/1972, that is, the respondents herein, as the defendants therein. These designations of the parties hereto will for convenience be retained and continued throughout this judgment.

On the pleadings and the evidence in support thereof, the case of the plaintiffs was that the land, the subject matter of both suits and in dispute is a large expanse of land comprising 9 pieces or parcels namely, Likpanko, Kepotodo, Ekpolo-Ito, Kekpakola, Ito-Emego, Kokobili, Levaba, Alohibo and Edeligbo – all of which are situate and lying between the lands of the two defendants – and form part of a larger expanse of land, which is their property, the said larger expanse of land being roughly divided into two distinct and separate portions by administrative or executive boundary, the demarcation thereof having first been done by District Commissioner, Major Cockburn between 1899 and 1903, that the whole of the larger expanse of land aforesaid is delineated and verged green on the plan No. TJSE. 3OLD of 2nd August, 1972, Exhibit 1 herein, prepared by Licensed Surveyor J. T. John, the area at present in dispute being thereon verged pink; that their ancestors or predecessors-in-title from whom they inherited the land in dispute originated as a result of tribal war about 100 years ago from Agbo clan in Obubra Division and migrated therefrom to and at first settled on that part of the land in dispute known as Leveba, Kekpakola or Kepotodo, Kokobili, Ekpolo-Ito and Ito-Emego, lying to the North-West of Leva stream, which was granted to them absolutely by the people of Adun, the original owners thereof; that next to their original settlement aforesaid there lay the territory of Isobo people, an unpopular people, whom the Adun people with their own assistance and the assistance of the defendants’ ancestors subsequently drove away from the area; and that with the departure of the Isobo people their ancestors abandoned for the purpose of settlement the Levaba area of the land and moved closer to the bank of the Cross River and there made their permanent settlement while at the same time continuing to exercise maximum acts of ownership in and over the whole of the larger expanse of land aforesaid.

It was the case of the plaintiffs that soon thereafter, the defendants’ ancestors, who had themselves migrated into Adun territory and were also granted land North of Levaba stream by the Adun people began to lay claim to the land near to or in the vicinity of the Levaba stream, portions whereof are included in the land in dispute; that encroachment by the defendants led to a war between their ancestors and the ancestors of the defendants and resulted in the intervention of District Commissioner Major Cockburn who, in 1899, stopped the war between them and demarcated and pillared a permanent boundary separating their land from the lands of the defendants; that thereafter both they and the defendants accepted and respected what became known as the Cockburn boundary; and there was peace; that in 1903, the defendants violated the Cockburn boundary and began to harass them, the plaintiffs, over the area of land now in dispute; that that resulted in the agreement, Exhibit 2, drawn up by District Commissioner C. Partridge between them and the defendants, which agreement, once more re-emphasised the Cockburn boundary, which both parties then agreed to accept and for which purpose both parties, that is, the plaintiffs and the defendants herein had to chop “Mbiam” by way of sealing the said agreement to abide by the Cockburn boundary of 1899; that in 1913, 1917 and 1927 after an uneasy peace, the defendants again violated the Cockburn boundary, the result whereof was war, lasted until the intervention of some other Administrative Officers. So that since 1899 there had been from time to time repeated warfare between them and the defendants over the area of land in dispute interspersed with periods of uneasy peace and manifest attempts by Administrative Officers to impose upon them an administrative or executive boundary; that the matter came to a head in 1929 when they, as represented by Eva Agbor, instituted Suit No. 4/1929, Exhibits 3, 4 and 7 in the Ogoja Provincial Court against the defendants, as represented by Eva Ndeben and Obot Eta claiming:-

“1. a declaration of title and recovery of possession of the whole of the larger expanse of land then in dispute including the area now under consideration; and

“2. declaration of boundary between the lands of the plaintiffs and those of the defendants as may be adjudged to them in this action”;

that they were non-suited as to the first part of their claim but succeeded as to the second part thereof concerning a declaration as to their boundary; that on 12th February, 1931, their appeal against the non-suit entered against them as to the first part of their claim for a declaration of title and recovery of possession of the land then in dispute was dismissed by Cicil William Victor Carey, J.

It was also the plaintiffs’ case that thereafter it was only in 1963 that the defendants again began to lay claim to the portions of the land now in dispute outside the Cockburn boundary when they attempted to grant a lease of the said portions to the Eastern Nigeria Development Corporation. Hence the present suits. It is of considerable significance to note that in paragraphs 20, 21, 22 of their Statement of Claim, the plaintiffs had pleaded as follows:-

“20. At the trial the plaintiffs will contend that the adjudged boundary, in so far as the judgment purported to confirm an administrative or executive boundary, is invalid and the judgment itself a nullity in that the provisions of the Inter-tribal Boundaries Settlement Ordinance were not complied with.”

“21. Subsequently, however, the people of Igbo Imabana resumed farming on the said portion of land from which they were supposedly “evicted” by the executive boundary of 1917. The people of Assiga and Ekuri, well knowing that they “had no right to be on the said land acquiesced in the continuing farming thereon by the people of Igbo Imabana in spite of the executive boundary of 1917 and the decision of the 1929 case.”

“22. This uneasy but less explosive situation continued until about the month of September, 1963, when the people of Assiga and Ekuri secretly entered into negotiations with the view of leasing the land in dispute to the Eastern Nigeria Development Corporation, well knowing that the land is not theirs but that of the people of Igbo Imabana.”

In answer to the averments contained in paragraphs 20, 21 and 22 of the Statement of Claim set out above, the defendants pleaded in paragraph 16 of their Statement of Defence as follows:-

“16. The defendants denied paragraphs 20, 21 and 22 of the Statement of Claim and will put the plaintiffs to the strictest proof of the allegations therein contained.”

It is necessary also to observe having regard to the submissions addressed to us in this appeal on the issue of res judicata, that throughout the hearing of both suits in the High Court, no application was made, and none granted, to amend especially paragraph 20 of the Statement of Claim, which therefore remained as, and formed part of the case of the plaintiffs throughout the proceedings in the High Court. It has often been stated by this court, and we repeat it again, that in the conduct of their cases before the High Court, parties are bound by their pleadings and will not be permitted to set up cases different from their pleadings either in the High Court or in this court on appeal. See Sir Adesoji Aderemi v. Joshua Adedire, (1966) NMLR 398.

The case of the defendants, on the other hand, was that they are the owners in possession of the land in dispute in both suits having been in possession of the same from time beyond human memory; that they have been exercising in and over the same maximum acts of ownership; that the plaintiffs are strangers in the area having migrated from Igbo Ekwrurokwu near Okpu Itume in Abakaliki Division as a result of a tribal war in which they were worsted; that on arrival as refugees they begged for and the defendants’ ancestors granted them land on which they settled on terms that they performed the custom of paying tributes of one leg of meat, some yams, rods and corn, the performance whereof was strictly enforced and observed at first with regularity; that at the time of the said settlement, the Isobos, also customary tenants of the defendants’ ancestors near whom the plaintiffs’ ancestors were settled, raised objection; that as result, fight ensued between the defendants’ ancestors aided by the plaintiffs’ ancestors and the Isobos, who were defeated in the encounter and put to flight; that after the departure of the Isobos, the plaintiffs were permitted to occupy the area of land near to the Cross River as customary tenants of the defendants while the defendants continued in occupation of the rest of their land, including the area of the Leva stream.

It was the case of the defendants that the whole of the land verged green on Exhibit 1, starting from the Leva or Leva stream in the South-East to the Cross River in North and North-West, originally belonged to their ancestors from whom they inherited the same; that the area granted to the plaintiffs’ ancestors and which they occupied was by the bank of the Cross River, which area is clearly delineated on the Plan No. L/D/SEJ/1, dated 31st May, 1973 prepared by licensed surveyor Patrick Anosike; that soon after the departure of the Isobos, the plaintiffs’ ancestors, who had then multiplied, began to spread inland from the bank of the Cross River and occupied without permission the defendants’ land not granted to them; that in consequence of that a fight broke out between them, which resulted, they admitted, in the District Commissioner Major Cockburn’s boundary of about 1899 and that the Cockburn boundary confined the plaintiffs to the area verged yellow on the plan, Exhibit 10. The defendants also admitted the agreement of 29th July, 1903, Exhibit 2, in the sealing of which “Mbiam” was chopped by both the plaintiffs’ and the defendants’ ancestors.

They admitted also that the Cockburn boundary was re-demarcated and pillared with beacons by District Officer Macpherson in 1927 as shown in Exhibit 11. They also admitted Suit No. 4/1929 in the Ogoja Provincial Court in which the plaintiffs herein were nonsuited, and their appeal thereafter dismissed by Carey, J., in respect of their claim for a declaration of title to and recovery of possession of the land now in dispute.

It was also the defendants’ case that since the plaintiffs lost their claim to title to and possession of the land now in dispute they had always confined themselves within the limits of the Cockburn boundary; that they had always respected the Cockburn boundary; that any time they wanted land outside the Cockburn boundary, they had always obtained permission from the defendants on payment of the customary rent; that whenever they failed to do so, the defendants had always sought their remedy in court; and that it was in such circumstances that they successfully sued the plaintiffs in respect of Okpodum or Likpanko in Yakurr Clan Court in Suit No. 5/1938.D.O., Exhibit 8, judgment in which was given in their favour by District Officers F. R. Kay exercising the power of Resident, on 20th December, 1938. The defendants therefore claimed as per their Writ of Summons in Suit No. C/19/72.

Such in brief was the nature of the materials before the High Court, and which, after having given consideration thereto, Koofreh, J., as he then was, dismissed in its entirety the claim of the plaintiffs in Suit No. C/10/72 and defendants in Suit No. C/19/1972 but granted to the defendants in Suit No. C/10/72 and plaintiffs in Suit No. C/19/72 a declaration of title to all that piece or parcel of land in dispute and verged pink in the plan, Exhibit 1, the area whereof Exhibits 6 and 10, respectively; awarded them N400.00 damages for tresspass and also granted them an order for a perpetual injunction as against the plaintiffs.

The plaintiffs have now appealed to this court.

Chief Rotimi Williams, learned counsel for the plaintiffs, in his usually brilliant and skillful but pointedly brief submissions, borne out of experience, has severely attacked the judgment of the learned trial Judge. He has submitted that the learned trial Judge erred in law and on the facts in failing to observe that, although in 1929, the plaintiffs had failed to prove the full extent of their boundary with the defendants, they had succeeded in proving it in the present case and therefore ought to have been entitled to judgment. It is his contention that the learned trial Judge was unduly influenced by his attitude to the defendants’ plea of res judicata; and that in that respect, the learned trial Judge erred in law in holding that the proceedings, Exhibit 7, and the judgment, Exhibit 3, in the Ogoja Provincial Court, Suit No. 4/1929 operated as a bar against the plaintiffs in their claim for a declaration of title to the land in dispute, since in its final order the, Provincial Court in that suit had merely nonsuited the plaintiffs.

Learned counsel then explained that by its very nature an order of a nonsuit gives no judgment to either party to the contest and is therefore no bar to subsequent action for the same cause by either party.

These submissions are important and must be carefully considered in the light of the evidence the bulk of which was documentary. For the plaintiffs, as contended by their counsel, the issue of res judicata is crucial. Their case must stand or fall by it.

Before ruling on the issue of res judicata, which was raised and extensively argued by counsel for the defendants and the plaintiffs before him, the learned trial Judge, correctly in our view, directed himself as to the issues for determination in both suits and the extent to which the plea of res judicata was relevant, when he said:-

“I have considered the points raised by the counsel on both sides in their addresses and the facts adduced by the parties in this case. Both parties are plaintiffs and they are also defendants. Therefore the law will expect each to establish its own case. Since the case for the defendants is based on the doctrine of res judicata, it is necessary to consider whether in fact they have established that defence.”

It seems quite obvious that in the above passage, the reference to the plea of res judicata is as a defence to the claim of the plaintiffs in suit No. C/10/1972 since it was properly so pleaded by the defendants. The learned trial Judge was quite conscious of the fact that since he was dealing with two consolidated suits, the issues involved for decision in each case must be kept separate and distinct and considered separately.

It is worthy of note also that the learned trial Judge in considering the issue of res judicata cited and relied on Ihenacho Nwaneri v. Oruiwa & Ors. (1959) 4 FSC 132 and William Ude and Ors. v. Joseph Agu & Ors. (1961) 1 All NLR 65 and, in our view, properly directed his mind to the principle involved, when he said:-

“For a defence or plea of res judicata to succeed the parties in the previous action which is pleaded in the present one must be the same, the subject matter must be the same the claim must be the same and the court which pronounced the judgment must be a court of competent jurisdiction.”

And, of course, he might just as well have added that the decision must be final, that being the cardinal point which was emphasized in William Ude & Ors. v. Joseph Agu & Ors. in which the Federal Supreme Court quoted with approval a statement of Lord Alverstone, CJ., in Bozson v. Altricham U.D.C. (1903) 1 KB 547, wherein his Lordship had posed to himself a question which he also proceeded to answer when he said:-

“Does the order, as made, finally dispose of rights of the parties If it does, then I think it ought to be treated as a final order; but if it does not it is then, in my opinion, an interlocutory order.”

Thereafter the learned trial Judge in his judgment, continued:-

“The particular judgment which has been quoted by the defendants to operate as estoppel against the plaintiffs in the present action is the judgment of 1929, Exhibit 7.”

It should be explained that Exhibit 7 is the full proceedings and judgment of the Ogoja Provincial Court Suit No. 4/1929 admitted in the proceedings in the High Court through the defendants as supplementary to bits of the proceedings and judgment, including the proceedings on appeal before Cicil William Victor Carey, J., of the said Ogoja Provincial Court Suit No. 4/1929, which were admitted through the plaintiffs and marked as Exhibits 3 and 4 as part of the plaintiffs’ case. Exhibit 2 was an Exhibit marked B in Suit No. 4/1929.

In dealing with the issue of res judicata, the learned trial Judge considered:-

1. the traditional history of the plaintiffs in terms of their pleadings and testimony and the pleadings of the defendants and tested the same with available documentary evidence about which more will be said hereafter;
2. the actual particulars of claim by the plaintiffs in that suit;
3. the subject matter of the claim, that is to say, the identity of the land that was then in dispute;
4. the judgment pronounced by the court as to whether the same was final or otherwise;
5. the competency of the Ogoja Provincial Court to have tried the case;
6. the issue actually decided in the case;
7. the capacity in which the contest was conducted by the parties; and finally,
8. the judgment on appeal before the Judge.

In Suit No. 4/1929, the claim of the plaintiffs therein, who are also plaintiffs in the consolidated suits now on appeal against the defendants therein, also, defendants herein, fell under two heads and stated in full were:-

“(1) Declaration of title to and recovery of possession of all that piece or parcel of land situate at the Cross River and bounded on one side by Assiga land on the second side by Leve stream, on the third side by a land starting from a point on the bank of the Leve stream and going in a southeasterly direction to a point on the Assiga-Ekuri Road where stands a large Efoguene tree and then in a southeasterly direction again to concrete pillar on the Igbo-Ekuri Road, and on the fourth side by Executive Boundary marked with concrete pillars starting from a point near the Lahama stream on the Igbo-Ekuri Road. The said piece of land is more particularly defined and edged red in a plan filed by the plaintiffs.”

“(2) Declaration of boundary between the lands of the plaintiffs and those of the defendants as may be adjudged to them by this action.”

Looking at the particulars of claim set out above, we agree with the submissions of learned counsel for the plaintiffs that what in fact the plaintiffs did was to claim title to, and recovery of possession of a vast expanse of land as against the defendants, and, as an alternative in the event they should fail in that endeavour, they had also sought from the court as a second string to their bow, a declaration of the boundary separating their land from the lands of the defendants in the belief that once such a boundary was declared and the land duly demarcated accordingly, they would be free from any future molestation and harassment by the defendants. Thus the plaintiffs were playing for high stakes in the first part of their claim.

Now, the land the subject matter of the first part of the plaintiffs’ claim in Suit No.4/1929, Exhibits 3, 4 and 7, corresponds in every material particular to the whole of the large expanse of land delineated and verged green in the plaintiffs’ Plan No. TJ.S.E.3)LD of 2nd August, 1972 and TJ11A/64 of 31st June, 1965, Exhibits 1 and 6, respectively, prepared by licensed surveyor J. T. John. It is a triangular shaped piece of land stretching from Leva stream on the boundary between the defendants and the people of Nko to the Cross River with the apex at Igbo Imabana village on the bank of the Cross River. It is sandwiched between the lands of the defendants and comprises two main portions which may loosely be described as the coastal and the inland portions. The coastal portion is that portion situate immediately on the bank of the Cross River in the form of a crescent and stretches from Igbo Ikpalakwa village along the bank of the Cross River to Igbo Imabana village. The inland portion, on the other hand, stretches thence back inland up to the Leva stream in the south-east, which is shown as the boundary separating the land in dispute in the present suit from the land of the people of Nko, the said inland portion being clearly delineated and verged pink in the plaintiffs’ plans, Exhibits 1 and 6 and thereon described as the land in dispute in the two consolidated suits on appeal.

The said large expanse of land also comprising two separate and distinct portions already described is clearly shown and delineated on the defendants’ plan, L/D/SEJ/1 of 31st May, 1973, Exhibit 10, prepared by licensed surveyor Patrick Anosike. In Exhibit 10, while the coastal portion is shown verged yellow, the inland portion also described as the land in dispute in the present consolidated suits is thereon delineated and verged pink.

Thus, by common consent in all the three plans, Exhibits 1, 6 and 10, the land in dispute in the instant consolidated suits on appeal is the same and was part of the large expanse of land which was in dispute between the plaintiffs and the defendants in the Ogoja Provincial Court Suit No. 4 1929, Exhibits 3, 4 and 7 in these proceedings.

On reviewing the evidence, the learned trial Judge held that the Provincial Court which heard the case – Suit No. 4/1929, Exhibits 3, 4 and 7 – was competent and had full jurisdiction to have heard the case and that the judgments of both the Provincial Court and of Cicil William Victor Carey, J., on appeal, Exhibits 3, 4 and 7 had superceded the administrative or executive boundary which had been demarcated by various administrative officers. To put it in his own words, the learned trial Judge said:-

“Thus what was all along an administrative boundary received a judicial blessing in the 1929 case which the plaintiffs instituted against the defendants.”

By that finding, the learned trial Judge directly overruled the contention contained in para. 20 of the Statement of Claim in Suit No. C/10/1972 that the adJudged boundary was invalid and the judgment of the Provincial Court a nullity, in that it had purported to confirm an administrative or executive boundary. By that ruling the learned trial Judge prevented the plaintiffs, from re-opening the old dispute as to the ownership of the vast expanse of land stretching from Leva stream into the Cross River, whereby the Major Cockburn boundary would have been set at nought, which issue was itself res judicata.

The learned trial Judge also considered the traditional history of the plaintiffs as to how they had acquired the land in dispute and rejected it in preference to the story of the defendants. He said:-

“On the facts it is absolutely untrue that the plaintiffs Igbo Imabana were given the land they now occupy and the area in dispute by the Adun people. I am unable to disturb the facts so carefully considered by Mr. Hunt in the 1929 case, Exhibit 7. Therefore, I accept as a fact that the plaintiffs were allowed to stay in that area by the defendants, the Assigas and Ekuris. It is the limit of the area allowed them that has been the subject of many litigation’s and demarcations.”

And further

“That court (the Provincial Court) clearly showed that the plaintiffs were granted where they now live by the Assigas and the Ekuris, defendants. The court also accepted that the confused state of affairs between the plaintiffs and the defendants culminated in many “administrative actions which eventually limited the plaintiffs Igbo Imabana within the area marked by the cement pillars.”

Generally, on the evidence before him, the learned trial Judge found as a fact that the whole of the large expanse of land shown on the plans, Exhibits 1, 6 and 10 in these proceedings had from time to time been the subject on dispute and fights and litigations between the plaintiffs and the defendants; that as a result of such a dispute, District Commissioner Major Cockburn had in or about 1899 demarcated a boundary between the land occupied by the plaintiffs and the lands of the defendants; that subsequently in 1903 an agreement, Exhibit 2, was drawn up by District Commissioner C. Partridge between the plaintiffs and the defendants whereby both undertook to adhere to the boundary which had been marked out by Major Cockburn and the defendants specifically undertook to allow the plaintiffs to continue “in occupation of the town in which they live, and no longer to seek to drive them away”; that it was District Officer Macpherson who was the last administrative officer to re-demarcate the Major Cockburn boundary with concrete pillars in 1927 as shown in the sketch plan, Exhibit 11, the boundary so re-demarcated being delineated and verged red on the said sketch plan; that the area enclosed by the said boundary corresponds to the almost crescent shaped coastal portion of the land on the bank of the Cross River delineated and verged yellow on the plan, Exhibit 10, put in evidence by the defendants, which was the area of land the boundary whereof was defined and demarcated in favour of the plaintiffs in the Ogoja Provincial Court Suit No. 4/19/29, Exhibits 3, 4 and 7; and that the land claimed by the plaintiffs in suit No. C/10/72 and the defendants in suit No. C/19/72 also corresponds to the area of land in which the claim of the plaintiffs in Suit No. 4/1929 for a declaration of title and recovery of possession thereof was nonsuited.

On these findings, the learned trial Judge held that:-

“As far as that boundary is concerned, from that day when they lost the appeal before Mr. Justice Carey in the then Supreme Court now High Court on 12th February, 1931, the plaintiffs cannot go beyond the Assiga/Ekuri Road junction. They were therefore adjudged in effect not to be the owners of the land now in dispute. I hold therefore that the doctrine of res judicata operated against the plaintiffs in this case in so far as they claim any land beyond the Assiga/Ekuri Road junction.”

The complaint of the plaintiffs in the present appeal is that the conclusion reached by the learned trial Judge was wrong in law because the final order made by the Ogoja Provincial Court in Suit No. 4/1929 was a nonsuit, which therefore entitled them to relitigate the whole issues again; and that it was on that basis that the present suit was instituted by them.

We do not think this complaint is justified nor do we think it is reasonable in the circumstances disclosed by the evidence in these conslidated suits. For, on the findings of the learned trial Judge that the whole of the vast expanse of land, including the area awarded to the plaintiffs in Suit No.4/1929 and on which they are now settled, was originally the property of the defendants; that the plaintiffs had originally arrived in the area as refugees from Abakaliki having been worsted in a war there and were placed where they now settled by the generosity of the defendants, which, in effect, means that the plaintiffs are customary tenants of the defendants; and that the boundary demarcations and exercises undertaken by administrative officers at various times commencing from Major Cockburn in 1899 and culminating in District Officer Macpherson in 1927, were designed to restrict the expansion of the plaintiffs outside the demarcated boundary into the surrounding lands of the defendants – all those findings can only lead to the irresistible conclusions that the whole question of the title to and the ownership of the whole land which was in dispute in Suit No. 4/1929 was res judicata. The plaintiffs did themselves no credit by introducting a new dimension into their traditional history by claiming their title through the Adun people for the first time since 1899.

We think on the facts of these consolidated suits, which were well known to the Ogoja Provincial Court in 1929, that the order of a nonsuit by the Provincial Court in respect of the claim for title and possession of the land in dispute was misconceived. It was based on a misapprehension of the true legal position of the parties as to the burden of proof. The Provincial Court appeared to have been confused as to the appropriate final order to make with the result that the order which it made manifestly contradicted, in material particulars, its own findings of facts.

The Provincial Court after a lengthy and careful review, or, to use its own expression, “summing up” of the evidence in the case, concluded its findings thus:

“On the evidence then which on either side has been by no means satisfactory, the plaintiffs have not substantiated their claim to any of the land outside the boundary pillars on the plan, and on this issue judgment must be given to the defendants.”

And instead of entering judgment for the defendants accordingly, the court proceeded to order as follows:-

“On claim 1 for declaration of title to and recovery of possession of all that piece or parcel of land as set out on page 1 or more particularly defined and edged red on the plan filed by the plaintiffs is nonsuited.”

Surely such an order makes nonsense of the provincial court’s findings on the evidence; and, although this court is not sitting on appeal in respect of Suit No. 4/1929, Exhibit 7, the only sensible thing to do is to ignore such an order. No reasonable court would have made such an order today at the present stage of the development of our jurisprudence, more especially in the field of land law.

It is a well established rule of law that an order of nonsuit should only be made where the plaintiff has not failed intoto and where in any case the defendant is not entitled to the judgment of the court. See Amobi v. Texaco Africa Limited SC.593/1966 delivered on 20th March, 1972. Where in a claim for a declaration of title to and recovery of possession of land such as was claimed in Suit No. 4/1929, the plaintiffs set out to prove their title to and possession of the said land and failed, the fact that the defendants also have no title to the land can never be a sound reason for a nonsuit. See also Mustapha S. B. Dawodu v. Sabina Gomez 12 WACA 151. A nonsuit in a claim for a declaration of title to land postulates that the case of the plaintiff on the evidence has some merits showing that the plaintiff is entitled to the land claimed or at least to some part thereof but that owing to some technical fault or defect in the handling or presentation of the case, the plaintiff has been unable to discharge to the satisfaction of the court the heavy burden placed upon him, and at the same time, that the defendant not being entitled to the judgment of the court, justice demands that the door should still be left open to enable the plaintiff, if he so wishes, to relitigate the issue and probably make good the technical fault or defect which was responsible for the plaintiff’s failure on the previous occasion. See also Okwo Ejiofor v. Eze Onyekwe & Ors. (1972) 1 All NLR Part II 527.

The judgment of the Provincial Court in Suit No. 4/1929 in which the order of nonsuit was entered was given in 1929, and in 1935, there came the decision of the West African Court of Appeal in J. M. Kodilinye v. Mbanefo Odu 2 WACA 336, which can now be regarded as casus classicus on the subject, and which has been consistently followed ever since. That case established that in a claim for a declaration of title to land, the onus lies on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to such a declaration, that the plaintiff must rely on the strength of his own case and not on the weakness of the defendant’s case; that if the onus is not discharged the weakness of the defendant’s case will not help the plaintiff; and that in such a case the proper judgment must be for the defendant. The principle was also therein enunciated that if the whole evidence in the case be conflicting and somewhat confused, and there is little to choose between the traditional stories, the plaintiff fails in the decree he seeks and judgment must be entered for the defendant.

Quite apart from the view we take of the principles set out above, we think that the learned trial Judge was right in law when he held that the plaintiffs were estopped per rem judicatam from re-opening and relitigating the issues of the ownership of and title to the land in dispute. The reason for this is that, although the plaintiffs were nonsuited in the Ogoja Provincial Court, Suit No. 4/1929, Exhibits 3, 4 and 7, that court did find as a fact, which fact has been also re-echoed and re-affirmed by the learned trial Judge that the defendants have been from time immemorial owners of the whole of the land in dispute in the 1929 case including even the settlement of plaintiffs, the plaintiffs being hereby customary tenants of the defendants, and that the Cockburn boundary of 1899 was designed to confine the plaintiffs within their settlement and to prevent them from going outside the boundary into the land of the defendants. The plaintiffs could not in those circumstances be allowed to reassert in any court of law ownership of and title to the land in dispute, for there must be an end to litigation over the same subject matter and between the same parties and over the same issues.

To strengthen further his decision in this respect, the learned trial Judge quoted and relied on Section53 of the Evidence Law Cap. 49 Vol. 3 Laws of Eastern Nigeria, 1963, which reads;-

“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.”

After a very careful and rather exhaustive analytical scrutiny of the whole of the evidence in these consolidated suits, we accept the impressive and compelling submissions addressed to us by Mr. Braithwaite, learned counsel for the defendants, that the learned trial Judge came to a correct decision when he held that the doctrine of res judicata operates against the plaintiffs in this case in so far as they claimed any land outside the boundary fixed as far back as about 1899 by Major Cockburn and confirmed in Suit No. 4/1929, Exhibits 3, 4 and 7, separating their land from the lands of the defendants. We hold that the whole of the land in dispute in the present consolidated suits lies entirely outside the boundary which was confirmed in Suit No. 4/1929. The order of the learned trial Judge dismissing in its entirety the plaintiffs’ claim in Suit No. C/10/1972 is hereby affirmed.

The decision we have reached on the main and crucial ground of appeal concerning the issue of res judicata argued for the plaintiffs encompasses most of the issues in controversy in the appeal. We think it unnecessary therefore to deal with the other grounds which were not really pressed by the learned counsel for the plaintiffs.

Normally, the decision by us on the issue of res judicata should have disposed of this appeal, but as the learned trial Judge did enter judgment in favour of the defendants in their claim in Suit No. C/19/1972, we consider it expedient to deal with that aspect of the case. The only complaint directed against the judgment in this respect was that the learned trial Judge erred on the facts in failing to observe that there was no evidence before him as to how the Assigas and the Ekuris came to own land jointly; and also erred in law in failing to observe that the evidence for the defendants was contradictory on the issue whether the land in dispute belong (a) to the Assigas alone or (b) to the Assigas and the Ekuris.

This complaint can easily be disposed of by looking at the evidence of Chief Robert Onun, the Clan Head of Assiga who, as spokesman for Assiga and Ekuri, had sworn that the land, the subject matter of the two suits, namely, Suits Nos. C/10/72 and C/19/72, are the same; that the area verged pink in Exhibit 1 is the land in dispute….; that the plaintiffs are now occupying the northern part of this land near the Cross River; that the plaintiffs came to them from the other side of the Cross River as refugees from Abakaliki area; that they it was who allowed the plaintiffs to stay with them for some time and they gave them the land they now occupy; that when they gave the plaintiffs the land they were to pay tribute consisting of a leg of meat, some yams, rods and corn, which the plaintiffs paid regularly until 1917 when they refused to pay; and that the result of that was war. To quote his exact words, he said:-

“The land in dispute is made up of 14 parcels….

…

These 14 parcels belong to the Assigas and Ekuris. Both the Ekuris and the Assigas used the 14 pieces in common. If a portion of the land is to be given to strangers we have to do so jointly with the Ekuris. Each side is also free to give land out without consulting the other provided the money is shared….

….

…. I know District Officer Machpherson. I went with him when he placed the pillars on the land. The Igbo and Assiga and Ekuri people were there.”

The evidence of Chief Robert Onun was accepted by the learned trial Judge who, commenting on it, said:-

“The evidence of this witness must be regarded as most important for the defence. In some way he put a different complexion to the case. It also confirmed my findings that the so-called Cockburn boundary was the cause of many administrative demarcations in an attempt to locate it. It was Macpherson who actually fixed the concrete pillars when he demarcated what he thought was the Cockburn boundaries. Because this favoured the present defendants that was why the plaintiffs took action which ended against them in 1929. Since then, where the pillars were located came to be regarded as the boundaries between the Assigas and Igbo Imabana on the one hand and the Ekuris and Igbo Imabana on the other.”

Then in dealing with the whole case of the defendants as plaintiffs in Suit No.C/19/72, the learned trial Judge held that some of the facts directly in issue in the 1929 case and which were decided in favour of the defendants were that the Assiga/Ekuri road junction and not Leva stream was the limit of the plaintiffs’ land; and that the land upon which the plaintiffs are settled was granted to them by the defendants. The learned trial Judge then continued:-

“The defendants have proved precisely the area of land (for) which they seek declaration. The plan filed by them is the same as that filed by the plaintiffs and therefore accurate and reliable. Reliable in the sense that the boundaries are accurate. Their traditional history, coupled with the evidence (both oral and documentary) available is very convincing. Following the cases of Rufai v. Rickett 2 WACA 95, Akuru v. Olubadan 14 WACA 523-524 and Aderemi v. Adedire 1966 NMLR 396, I hold that they have made out a case for the declaration of title to the dispute land in their favour.

From the evidence before this court, the plaintiffs have admitted that they infact entered the land beyond the Assiga/Ekuri Road junction and also beyond the demarcated boundary of 1929….

….”

Then finally, the learned trial Judge said:-

“On the whole I am satisfied that the defendants have successfully proved their claim. There will therefore be judgment for the defendants, the Assigas and the Ekuris against the plaintiffs, Igbo Imabana people.”

Thereupon, judgment was entered for the defendants in Suit No. C/10/72, and plaintiffs in Suit No. C/19/72 that is to say, the people of Assiga (Ayiga) and Ekuri. A declaration of title to and ownership of all the 14 continuous pieces or parcels of land known to them as “Esanaden”, “Ebiden”, “Ekosonade”, “Odiokpone”, “Okodum”, “Apilewi”(“Apedowi”), “Livako”, “Kesekola”, (“Desekla”), “Osegwa”, “Akama”, “Likpanko”, “Ekohpenden” (“Ekolikuniden”), “Okohkili” (“Okolikili”) and “Gawane” was granted to the defendants against the plaintiffs in Suit No. C/10/72 and defendants in suit No. C/19/72. These 14 pieces or parcels of land awarded the defendants correspond to the area of land which to the plaintiffs in suit No. C/10/72 and defendants in Suit No. C/19/72 comprises 9 pieces or parcels of land known as “Likpanko”, “Kepotodo”, “Ekpoloto”, “Kekpakola”, “Ito-Emego”, “Kokobili”, “Leveba”, “Alolibo”, and “Edeligbo” – all of which lie outside the Cockburn boundary made in about 1899 and separating the land of the plaintiffs from the lands of the defendants. The land awarded the defendants is situate and lying at Assiga and Ekuri in Obubra Division and is clearly shown delineated on the defendants’ plan No. L/D/SEJ/1 of 31st May, 1975, Exhibit 10 herein, prepared by licensed surveyor Patrick O. Anosike; and also on the plaintiffs’ plan No. TJ.SE.3OLD of 20th August, 1972, Exhibit 1 herein, prepared by licensed surveyor J. T. John, the said land being in both plans aforesaid verged pink. The defendants were also awarded damages in the sum of N400.00 for trespass and granted a perpetual injunction restraining the Igbo Imabana people, their agents or servants from entering the said pieces and parcels of land now declared to be the property of the defendants, that is, the people of Assiga and Ekuri, or in any way interfering with the said pieces and parcels of land without the consent of the people of Assiga nd Ekuri.

We are satisfied that the defendants as owners in possession of the land in dispute, quite apart from any question of res judicata, and disregarding the judgment in Suit No. 5/38/DO, Exhibit 8, herein, which was also in their favour in respect of Okpodum or Likpanko land have satisfactorily discharged on the evidence the onus on them of establishing both by traditional history and the exercise of acts of ownership in and over the land in dispute sufficiently numerous and positive enough to warrant the inference that they have always been and are the true and exclusive owners of the said land.

The judgment of the learned trial Judge dated 4th March, 1975 is hereby affirmed. This appeal is dismissed with costs to the defendants assessed and fixed at N238.00. Order accordingly.

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Other Citation: (1977) LCN/1901(SC)