Chief Shaibu Mamudu Idogierhie V. H.r.h. Chief John Oare Ii, Jp (2005)

LawGlobal-Hub Lead Judgment Report

NGWUTA, J.C.A.

The respondent is the clan Head of Anwai clan. He instituted the action in suit No. HAU/7/98 against the appellant and 9 others. The 1st appellant was sued in his personal capacity, but the other 9 defendants in the suit were each sued in a representative capacity. The claim in the court below is for the following reliefs:

“1. A declaration that the plaintiff is the only person entitled, personally or through agent, to collect customary dues/rents on all of Anwai Communal lands.

2. Perpetual injunction to restrain the 1st defendant by himself, servants, or agents from collecting any customary dues/rents on any part or parts of Anwai communal land.
3. Perpetual injunction to restrain the 2nd-10th defendants by themselves, agents or privies from paying any dues/ rents to the 1st defendant.
4. An order compelling the 1st defendant to account fully for all customary dues, rents or monies paid to, or collected by him on any part or parts of Anwai communal lands from 1990 to date.
5. The sum of N4,452,400.00 (Four million, four hundred and fifty-two thousand, four hundred Naira) being general and special damages for trespass, environmental degradation of Anwai communal land less of customary dues/rents and usurpation of customary rights.”

A memorandum of appearance was filed on behalf of the appellant as defendant but none was filed by any of the 2nd -10th defendants.

The respondent, as plaintiff, and the appellant as 1st defendant, filed and exchanged pleadings. No statement of defence was filed by, or on behalf of, any of the 2nd – 10th defendants. Also the settled records show that none of the 2nd – 10th defendant ever appeared at the trial.

At the trial, the plaintiff (now respondent) testified, and called two other witnesses and closed his case. The 1st defendant (now appellant) gave evidence, called five other witnesses and closed his case. Learned Counsel for the parties addressed the court and in a reserved judgment dated 27/5/01, the trial court found for the respondent in part, ordering that the 1st defendant is therefore ordered to give full account of all rents collected from 2nd to 10th defendants, during the period 1990, till the time the court ordered that the Assistant Chief Registrar High Court of Justice, Auchi should be collecting the rents.”

Aggrieved by the judgment, the appellant appealed against same on 6 grounds, herein reproduced, shorn of their particulars:

“Grounds of Appeal:

1. The judgment is against the weight of evidence.
2. The learned trial Judge erred in law, when he held that he had jurisdiction to hear and adjudicate the case.
3. The learned trial Judge erred in law, in modifying an established custom of the Anwai 4. Community on the issue of entitlement to rents and royalties from land in Anwai.
4. The learned trial Judge erred in law, in making a case distinct and different from that put forward by the parties, particularly the plaintiff.
5. The learned trial Judge erred in finding that the Eworra Development Committee is responsible to the appellant in the discharge of its function of collecting rents and royalties.
6. The trial Judge erred in ordering the appellant to render account of rents and royalties collected since 1990…”

In compliance with the rules of the court the parties, through their counsel, filed and exchanged briefs of argument.

In his brief, deemed filed on 23/1/03, learned Counsel for the appellant isolated four issues from the six grounds of appeal for the court to determine. The four issues are:

“1. Whether, having regards to the facts and the exhibits duly admitted in evidence, the learned trial Judge was right to hold that res judicata was inapplicable to deny him jurisdiction to try this case? (This issue encompasses ground 2 of the appeal.)

2. Whether having rightly found (page 106, line 24-27) that the clan Head was by custom excluded from control of land in the village, the trial court was justified in amending or rewriting the said native law and custom suo motu without any claim to that effect and even entertaining arguments from the parties on the issue. (This issue encompasses ground 3 of the appeal.)
3. Whether the learned trial Judge was right in making out a case for the plaintiff different from the case as per his pleadings and evidence, when he held that a sharing formula be adopted in the use and management of the proceeds from land in Anwai clan between the clan head and the constituent villages. (This issue can be distilled from ground 4)
4. Whether having regards to the evidence led at the trial, the learned trial Judge was right in holding that the defendant who was sued in his personal capacity was liable for the actions of the Eworra Community Development Association and/or the entire Eworra Community? (This issue encompasses grounds 5 and 6)

At the hearing, learned Counsel for the appellant adopted and relied on the appellant’s brief of argument dated 31/7/02, the reply brief dated 20/5/04 and a list of additional authorities dated 15/11/04 and urged us to allow the appeal.

Learned Counsel for the respondent adopted and relied on the respondents’ brief dated 5/4/04. He referred to his notice of preliminary objection dated 3/5/04 and adopted, and relied on his argument pursuant to the said notice in the respondents’ brief of argument. He adopted the issues formulated by the appellant.

In issue one in his brief, learned Counsel for the appellant referred to page 104 lines 20 – 30 of the records for the lower court’s ruling that the issues in this matter and the earlier case of HAU/14/75 in exhibit B are the same, but that the parties to the suit are different in that in exhibit B five persons represented the Anwai Community as there was no clan head when the suit in exh. B was initiated. In the present suit, the plaintiff is the clan head and from this fact the trial court came to the conclusion that the plaintiffs in the two suits are different. Learned Counsel submitted that the holding and observation of the trial court are not in accord with the stilled principles guiding representative actions. Counsel argued that in a representative action, it is not the person acting in a representative capacity that is the real party. He is at best; the agent of the persons he represents. He relied on: Afolabi v. Adekunle (1983) 2 SCNLR 141, (1983) 8 SC 98; Adefulu v. Oyesile (1989) 5 NWLR (Pt.122) at 377 SC. Counsel contended that in suit No. HAU/14/75 as well as in the present suit, the plaintiff is the Anwai Community represented in the former suit by five persons and in this latter case by the clan head. He argued that the 1st defendant/ appellant is privy by blood and office to the 6th defendant in suit No. HAU/14/75. Based on the above, learned Counsel contended that the trial court ought to have upheld the submission on res judication and declined jurisdiction accordingly. He referred us to the following cases:

1. Anugbu Agbusi and Ors. v. Joseph Obi and Ors. (1987) 1 NWLR (Pt.56) 39 at 40.
2. Oshodi v. Eyifunmi (2000) 13 NWLR (Pt.684) 298, (2000) 80 LRCN at 2877 ratios 5, 6, 7 and 8.
3. Adebayo v. Babalola and Ors. (1995) 7 NWLR (Pt.408) 383 (1995) 31 LRCN 200 at 213, 215.
4. Oyerogba v. Olaopa (1998) 13 NWLR (Pt.583) 509 (1998) 64 LRCN 5291.

In issue 2, learned Counsel said the parties joined issues on who, by custom controls the proceeds of the land in Eworra – the clan head or the Eworra Village. He referred to the statement of claim and evidence of the respondent for his claim to exclusive right to the collection of all rents on Anwai Communal land. He referred also to the statement of defence and evidence to the effect that it was customary law in Anwai Community that each village making up the Anwai clan had exclusive control over the land comprised in the territory of the village. He referred to the evidence of PW2 at page 66 line 3 – 5 on this point and said the evidence was not controverted by the respondent in cross-examination at page 66, line 30-67 of the records. Counsel offered the same argument in relation to the evidence of PW3. He contended that the issue of the fairness or otherwise of the applicable custom was never raised by any of the parties and the court of trial should not have made a decision on it. He cited the following cases: Spasco Vehicle and Plant Hire Co. Ltd. v. Alraine (Nig.) Ltd. (1995) 8 NWLR (Pt.416) 655, (1995) 32 LRCN 479 ratios 1, 2 and 3; Nteogwuile v. Otuo (2001) 16 NWLR (Pt.738) 58, (2001) 88 LRCN 2357, ratio 7, Commissioner for Works, Benue State v. Devcon Consultants Ltd. (1988) 3 NWLR (Pt.83) 407 SC; Comptoir Comm. And Ind. S.P.R. Ltd. v. Ogun State Water Corp. (2002) 9 NWLR (Pt.773) 629. Learned Counsel drew our attention to the finding of the lower court that “from the foregoing, it is clear that this is a case in which equity will set in to ameliorate the rigors of the customary law which appears to exclude the clan head from the activities of the various village heads” and argued that the finding was not supported by pleading or evidence, and the trial court had no business raising the issue. According to learned Counsel, the lower court failed in its duty to exercise its power judiciously. He relied on Balogun v. A.C.B. Ltd. (1974) 1 SC 77; Dr. T.A. Liman v. Alhaji Shehu Mohammed (1999) 9 NWLR (Pt.617) 116; (1999) 70 LRCN 1910 ratio 10. Dealing with issue 3 in his brief, counsel referred to page 107 lines 1 – 5 of the records where the learned trial Judge said:

“I hold that the various communities collect rents and royalties as at present but 1/3 of the collection should be paid to the clan head while the remaining 2/3 should remain with the village for the development of the village …”

and argued that the trial court gave to the respondent a relief not claimed by him. He argued further that the appellant was never given the opportunity to respond to the trial court’s unilateral sharing formula, and this occasioned a miscarriage of justice and is a violation of S. 36 of the 1999 Constitution on fair hearing and natural justice. Counsel relied on: Dr. Liman v. Alhaji Shehu Mohammed (supra); Ekpe-Nyong v. Nyong (1975) 2 SC 71; Ademola v. Sodipo (1992) 7 NWLR (Pt.253) 251 S;, 7 SCNJ (Pt. 11) page 417; Dyktrade Ltd. v. Omnia (Nig.) Ltd. (2000) 12 NWLR (Pt.680) 1; 80 LRCN 2856 at 2875; Agbeje v. Ajibola (2002) 2 NWLR (Pt.750) 127; 93 LRCN 1 ratio 1 at 10 – 11; Otaru and Sons Ltd. v. Idris and Anor. (1999) 6 NWLR (Pt.606) 330; 68 LRCN 823 ratios 7, 17. Counsel referred to S. 14 of the Evidence Act and said that the courts are enjoined to observe and enforce the observance of customary laws unless such customs are repugnant or contrary to public policy or to a written law. The court is not otherwise empowered to modify or rewrite an established custom which the court did by imposing a formula for sharing the rents and royalties on Anwai clan and in particular Eworra village. He relied on Eshugbayi Eleko v. Government of Nigeria (1931) A.C. 662 at 673, for his contention that the trial court lacked the power to water down the custom. He referred to section 13(1) of the High Court Law, Cap. 65, Laws of Bendel State (1976), now applicable to Edo State and argued that since the trial court did not find that the Anwai custom which excluded the clan head from the management or control of land in the constituent villages was repugnant, or contrary, to public policy or a written law the court ought to have applied the custom without modification.

Further, counsel argued that even if the court could modify the custom, the modification should not have retrospective effect.

In issue 4, the leaned Counsel referred to page 107 of the record where the trial court found that “The evidence before me which I accept shows that the 1st defendant himself does not collect rents, etc, from the stranger elements, but it is done by the committee set up by the village for this purpose. As held supra, this committee is responsible to the 1st defendant …” and argued that in view of this finding, there is no basis to hold the appellant to account for the monies collected by the committee. There is evidence that the committee is responsible to the Eworra Community. At page 70 lines 5-15, the appellant swore that:

“The committee is responsible for collection and or receipts of money paid by stranger elements. As a village head, I have no role to play in the collection and disbursement of money. I watch as an observer… ”

Counsel referred to the evidence of the PW3 the chairman of the committee who said his committee was responsible for the collection of rents, and that the appellant in not a signatory to the Eworra Community Bank accounts. He said that the pieces of evidence above were not controverted by the respondent in cross-examination.

The finding of the trial court relating to collection of rents by the committee is contrary to the respondent’s case that, there was no committee and that the appellant collected the rents personally, argued counsel. He referred to Motunwase v. Sorungbe (1985) 5 NWLR (Pt.92) 90; Kodilinye v. Odu (1935) 2 WACA 336; Odife v. Aniemeka (1992) 7 NWLR (Pt.251) 25 for the principle that the plaintiff must succeed on the strength of his case. Appellant cannot be held liable for the acts of the committee and the facts relating to vicarious liability was not pleaded. Counsel cited Ochonma v. Unosi (1965) NMLR 321 at 323 and Metalimpex v. Leventis (1976) 2 SC 91 in support of the principle that parties are bound by their pleadings.

Finally, counsel submitted that on the facts the trial Judge was wrong to hold the appellant personally liable for the acts of the committee as only a representative can bind his principal in a representative action. He referred us to Afolabi v. Adekunle (1983) 8 SC 98; Adefulu v. Oyesile (supra). Learned Counsel urged us to allow the appeal, set aside the judgment of the trial court and enter judgment for the appellant.

In his notice of preliminary objection, learned Counsel for the respondent contended that the appeal is incompetent in that all parties directly affected by the appeal were not put on notice or served with the appeal as required by Order 3 rule 2(1) of the Court of Appeal Rules, 2002. He argued that the omission of the 2nd to 10th defendants in the lower court is fatal to the appeal.

In his argument in issue one, learned Counsel stated that in a plea of res judicata, it must be established that the parties, issues and subject matter in the previous case are the same as in the action in which the plea is raised. He drew our attention to the following cases: Ihenacho Nwaneri and Ors. v. Nnadike Oriuwa (1959) SCNLR 316, (1959) 4 FSC 32 Idowu Alashe and Ors. v. Sanya Olori Ilu and Ors. (1964) ANLR (Reprint Edition) 383; Amos Ogbesusu Aro v. Salami Fabolude (1983) 1 SCNLR 58 1 FNR 66. He referred to page 104 lines 22 – 33 and page 105 lines 1- 5 of the record where the lower court held, inter alia,

“With the greatest respect to learned Counsel for the 1st defendant, the issue decided in exhibit B may be the same issue for determination in this case, but the parties are certainly not the same. Although, five named persons are said to be representing Anwai Community, the findings of fact at page 9 of exhibit B states that there was no clan head in Anwai when exhibit B was instituted.”

In addition to the above finding by the trial court, learned Counsel said the defendants in the present suit, 13 of them sued in their personal capacities, are not the same as the defendants in the previous suit; counsel further argued that as there was no clan head when exhibit B was instituted the trial court was right to say that the parties in the two suits are not the same. He referred to paragraph 11 of the appellant’s statement of defence and argued that the same does not contain sufficient particulars of the defence sought to be relied on. In support of his contention that the statement of defence does not contain sufficient particulars of resjudicata counsel referred to the case of Omeazu Chukwura v. A.I. Otochebe (1972) All NLR (Reprint Edition) 953 at 957, wherein the Supreme Court per Coker, JSC said inter alia, of res judicata;

“… If it was to be so regarded, the defendants ought to lead further evidence about it…”

Learned Counsel urged us to resolve issue one against the appellant and dismiss the appeal based on ground 2 of the grounds of appeal.

In dealing with issue 2, learned Counsel for the respondent referred to the pleadings and evidence before the court below from which he submitted that the clan head is the only one whose authority cuts across the entire clan of five villages. In the circumstances, learned Counsel argued the trial Judge was right in having recourse to the inveterate rules of equity to mitigate the harsh effect of the custom found in Anwai clan. He said the decision of the trial Judge is supported by sections 13(1) and 14 of the High Court Law, Cap. 65, Laws of the defunct Bendel State, 1976, applicable in Edo State. He cited the Supreme Court case of Taiwo Okeowo and Ors. v. Mrs. D.A. Migliore and Ors. 7 UILR 411, in support of his argument that technical rules of procedure must give way to substantial justice to the parties before the court. He urged us to resolve issue 2 against the appellant.

In issue 3, counsel said that based on the respondent’s pleading and evidence, rents and customary dues in the constituent villages in Anwai are paid to the clan head, but disbursed for the common benefit of the people of the clan. He made specific reference to page 63 lines 14 – 17 of the records for the evidence of the PW2 to the effect that;

” … this money is collected and taken to the clan head who will take part and give us the balance for public projects. This is the custom of the people in my place…”

According to learned Counsel, the evidence reproduced above is a recognition by the people of the Anwai clan of the “over lordship position” of the respondent which gives him an entitlement to a portion of the rents and customary dues payable on the natural resources in the villages that constitute the clan of Anwai. Learned Counsel argued that the lower court rightly ordered a sharing formula between the respondent, as the clan head and the villages that make up the clan and that this did not make a case for the respondent different from the case he presented to the court. The court merely invoked its equitable powers under S. 14 of the High Court Law (supra) to do substantial justice between the parties, adding that no injustice was done to the appellant as what the court granted was less than what the respondent claimed. He referred to section 14 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990 and S.13 (1) of the High Court Law (supra) and said the court below was right to intervene where it found a particular rule of customary law to be inequitable. He argued that making the order effective from 1990 was based on the respondent’s claim and did not occasion injustice to the appellant. He urged the court to resolve issue 3 against the appellant. Arguing issue 4, learned Counsel said the appellant as the village head of Eworra whose appointment was approved by the respondent is under the control and direction of the respondent as the clan head of Anwai. Consequently, the lower court was right when it ordered the appellant to render a full account of all rents collected from 2nd to 10th defendants in the suit. Counsel conceded that in a declaratory action the plaintiff must succeed on the strength of his case. “It is the law that the defendant is entitled to take benefit of the weakness of the defence” for which he relied on Ibeziako v. Nwagbogu (1973) 1 NMLR 113 at pages 123-124.

Respondent is entitled to the benefit of the unresolved contradiction in the evidence of DW3 and DW2 as to what happens to the rents collected from farmers in the villages of Anwai. Counsel argued’ that from the evidence of DW3 the committee claimed to be responsible for collection of rents in the village is responsible to the appellant. He referred to paragraph 23 – 25 of the statement of defence and said the appellant admitted that he was in receipt of rents and dues claimed by the respondent and based on Emegokwue v. Okadigbo (1973) All NLR (Reprint Edition) 314 at 317, any evidence contrary to what is pleaded should be discountenanced. He urged us to resolve issue 4 against the appellant, as the authorities on representative action do not avail him. He urged the court to dismiss the appeal and affirm the judgment of the lower court. I will dispose of the preliminary objection before determining the appeal. Pursuant to his notice of preliminary objection learned counsel for the respondent contended, in the respondent’s brief of argument, that the appeal is incompetent in that all parties directly affected by the appeal were not put on notice or served with the appeal as required by Order 3 rule 2(1) of the Court of Appeal Rules, 2002. Order 3 rule 2(1); provides thus: Order 3 rule 2(1);

“All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the Registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state, the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on all parties; and it shall also have endorsed on it an address for service.”

Though, the notice and grounds of appeal contained the defendants in the court below and listed the appellants and the respondents with their addresses as persons directly affected by the appeal, subsequent processes did not list the 9 other defendants. Can it be said that the 9 other defendants are persons directly affected by the appeal in the sense that the omission to include their names will vitiate the appeal? I do not think so. They did not enter appearance in the lower court and did not take part in the proceeding in that court. From the claim and pleadings before the court below, the liability vel non of any of the 9 defendants whose names were omitted in the briefs depends on that of the appellant. In my humble view, the objection is merely technical for in any case, the court can in certain circumstances, waive non-compliance with the rules or any rule of practice. See: Order 7 rule 3 of the court of Appeal Rules, (supra).

Furthermore, it is the function of the court to ensure that in all cases, substantial justice is done without having undue regard to technicalities. See: Okegbu v. The State (1979) 11 SC 71 at 86; Apon v. Fayemiwo (1969) 1 NMLR 233 at 235. The Court of Appeal will lean against technicality and hear an appeal on the merit in order to do substantial justice. See: District Commissioner etc. v. R.D. Patterson (1944) 10 WACA 119 at 120; Surakatu v. Nigeria Housing Dev. Society Ltd. and Anor. (1981) 4 SC 26 at40 A- G; A.- G., Bendel State v. A.-G .. Federation and 22 Ors. (1981) 10 SC 1 at 194.

I therefore over-rule the preliminary objection and proceed to determine the appeal on merit.

Issue one rests on res judicata. In order to invoke the principle of res judicata it has to be shown that the cause of action has been litigated upon and a final decision reached by a court of record of competent jurisdiction. The subject matter and the parties must be the same as in the earlier suit. See: Oduka and Ors. v. Kasumu and Ors. (1968) NMLR 28 at 34 and Doherty v. Doherty (1967) 1 All NLR 246.

The appellant relies on the decision of the court in suit No.HAU/14/75 referred to as exh. B in the present proceedings. The said exh. B is not part of the settled records in this appeal. However, on this issue the lower court held though issue for determination is the same in this and the earlier case the parties are not the same. On page 104 line 26 – 29 of the records the lower court held “Although five named persons are said to be representing Anwai Community, the findings of fact at page 9 of exhibit B states that there was no clan head in Anwai, when exhibit B was instituted.” In exhibit B, five persons represented the Anwai community as it had no clan head who should have stood for it. At the time the suit from which the appeal arose was instituted, the community had a clan head who represented it in the suit. On the facts found by the trial court, I am inclined to agree with learned Counsel for the appellant that Anwai community was a party in both suits even though in the earlier case it was represented by five persons but in this latter case it was represented by its clan head. However, the trial court found as a fact that there were 13 defendants in the earlier case as against the 10 defendants in this case and the 13 defendants were sued in their individual capacities. See page 104 line 33 to page 105 line 1. The appellants did not challenge the finding that there where 13 defendants in the earlier case on which they based their plea of res judicata whereas in the present case, there were only 10 defendants. I hold that the parties in the two suits where not the same and ipso facto the appellant cannot rely on the principle of res judicata. I resolve issue one against the appellant.

Issue 2 is based on the finding of the trial court that the clan head is by custom excluded from the control of land in the village and the modification of the custom by the court suo motu. In paragraph 8 of the statement of claim, the respondent, as the plaintiff, pleaded that “The plaintiff aver that as clan head, he is the custodian of all of Anwai Communal lands … “The trial court having found that the custom excludes the clan head from control of land in the village had no business or duty to amend the custom to accommodate the excluded clan head in the control of village land. The custom or its fairness was not an issue raised by any of the parties before the court. The court has no jurisdiction to grant a relief not sought. See: Otanioku v. Mustafa (1977) 11-12 SC 9; Ekpenyong v. Nyong (1975) 2 SC 71; A.-G., Federation v. A.-G., Abia State and Ors. (2002) 6 NWLR (Pt.764) 542, (2002) 96 LRCN 654 at 665. I resolve issue 2 in favour of the appellant.

Issue 3 impugns the sharing formula imposed on the parties suo motu by the trial court. The respondent’s claim in paragraph 10 of his statement of claim is that all rents payable by strangers in any part of the Anwai community are payable to the clan head for the benefit of the entire Anwai community. There was nothing in the pleadings to justify the introduction of a sharing formula by the court, even without hearing the parties on the issue. This the trial court was not competent to do, the sharing formula being unclaimed relief. See: Fasikan and Ors. v. Oluronke and Ors. (1999) 2 NWLR (Pt.589) 1, (1999) 1 SCNJ 105 Ikeanyi v. ACB Ltd. and Ors. (1997) 2 NWLR (Pt.489) 509, (1997) 2 SCNJ 175; Akinterinwa and Ors. v. Adesanya and Ors. (2002) 4 SCNJ 149 at 175. Issue 3 which is similar to issue 2 and should have been argued together with it, is resolved in favour of the appellant.

Issue 4 is whether or not, the appellant is accountable for monies collected and disbursed by the Eworra Community Development Association and/or the entire Eworra Community. On page 106 lines 18- 20 of the records the trial court found that ”The committee is set up by the community and the 1st defendant is the head of the said community. To say that he has no hands in the affairs in issue is day dreaming.” However, on page 107 lines 6-10 the trial court, contrary to its earlier finding held,

” The evidence before me which I accept shows that the 1st defendant himself does not correct rents, etc from the stranger elements, but it is done by the committee set up by the village for this purpose.”

The court held that the community is responsible to the 1st defendant (i.e. appellant). Against this finding is the unchallenged evidence of DW3 that the money is collected and taken to the palace at the end of the year where a decision on how to spend it is taken. This supports the case of the appellant that he has nothing to do with the money and that he is not a signatory to the village account. Without a specific finding that the appellants corrects the rents directly or through the committee he cannot be accountable for the rents collected by a committee set up by the village and of which he was not a member. The appellant who was sued in his personal capacity cannot be held to account for monies collected as rent by a committee set up by the village, there being no proof that he collected the money or part thereof from the community. If an account should be rendered it is the entire village that shall do so through the committee set up to collect the rents. I resolve the 4th issue in favour of the appellant.

I have considered the issues raised in this appeal, the submissions of counsel and authorities cited. It is my view that while the trial court rightly rejected the plea of res judicata, the court was in error to have awarded reliefs not claimed in its purported modification of the Anwai custom, and the imposition of a sharing formula on the community. There was no justification for ordering the appellant to account for money collected by a committee set up by the village and which money was not paid to him. For the foregoing allow the appeal and set aside the judgment and orders of the trial court. Respondent to pay costs assessed at N3,500 to the appellant.

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Other Citations: (2005)LCN/1725(CA)