Chief Uriah Akpana Adomba & Ors. V. Benjamin Odiese & Ors (1990)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C. 

This is an appeal by the plaintiffs against the judgment of the Court of Appeal, Enugu Division. That court had allowed an appeal by the defendants against the judgment of Wai Ogosu, J., sitting in a Portharcourt High Court.

The claim before the High Court was for the following reliefs:
“(1) A declaration that they, as persons adjudged in 2 Oloibiri native court suits nos. 17/58 and 18/58 owners and/or owners in possession of the land known as “EDUMATO-EMENI” alias “EDUMANYO”, are entitled to

(a) all monies due from and payable by 2nd defendants as compensation for 2nd defendant’s user, structures, loss of fishing rights and/or occupation of, and their operations on and/or in EDUMATO-EMENI land aforesaid; and
(b) All monies and/or sums due from and payable by the 2nd defendant in respect of plaintiff’s communally owned economic trees growing on the said land which were destroyed by the 2nd defendants.

(2) An order that the sum of N143,234.28 deposited by the 2nd defendants with the accountant-general, Rivers State, or any sum or larger sum due from and payable by the 2nd defendants as claimed in 1(a) and (b) above be paid over to the plaintiffs.

(3) Perpetual Injunction against 2nd defendants, their servants and/or agents paying any monies as claimed by plaintiffs in 1 and 2 above to any person or persons other than the plaintiffs.”

The main plank in the plaintiff’s case, as can be seen from their amended statement of claim dated the 28th day of August, 1978, is that, they were already, as against the 1st set of defendants, adjudged owners in possession of the “Edumato-Emeni”, alias “Edumanyo” land in dispute as shown in plan no. exh. “N” (i.e. in Oloibiri native court suits nos. 17/1958 (exh. “U”) and 18/1958 (exh. “V”)) in which the 2nd set of defendants “Nimbe A Location” lies.

So, they are entitled to the compensation of the sum of N143,234.28 due for the acquisition of the location by the 2nd set of defendants. Furthermore, they pleaded the traditional history of the entire land verged green in exh. “N” which, according to them was founded by their ancestor, Agbor, who was after his death succeeded by his son, Emeni, from whom the plaintiff’s family took its name, and then by the plaintiffs. They further alleged that it was the same piece or parcel of land which the defendants had sued for in the High Court suit No.P/57/58 (exhs. J, J1-J5) which action they did not prosecute and so it was struck out for want of prosecution.

Also, the plaintiffs pleaded other acts of possession and ownership which they exercised over the land in dispute. These included prosecuting certain trespassing members of the defendant’s community in the Magistrate Court case no. D/395C/1965 (exh. C). They were all convicted and the conviction was confirmed by the High Court. Some members of the plaintiff’s kith and kin also prosecuted actions against some members of the defendant’s community in Oloibiri native court suits nos. 162/57, 163/57,199/57 and 201/57 over portions of the land in dispute.

In the 1st set of defendant’s amended statement of defence dated the 1st day of August, 1979, they claimed to be the owners in possession of the land in dispute and joined issues with the plaintiffs on each of the above averments. In particular, they vigorously denied that suit nos. 17/1958 and 18/1958 were fought over any part of the land in dispute. In any event, those judgments were obtained by the plaintiffs in default of the defendant’s appearance and attempts by the defendants to appeal against them were forestalled by the registrar of the native court through the instrumentality of the plaintiffs. The plaintiffs, they averred, live several hundred kilometres away from the land in dispute.

The defendants were in possession of the land in dispute and were so found by the 2nd set of defendants when they entered the “Nimbe A Location” (to be hereinafter referred to as the location). As a result, the 2nd set of defendants made interim payments of compensation to them and agreed with them on the quantum of compensation for the location long before the plaintiffs came on the scene hence, the compensation was deposited with the accountant general.

They pleaded that the conviction of some of their people in D/395C/1965 was set aside by the Biafran Court of Appeal and both sides have since then respected the judgment. The land in dispute, called “Edem Ebela” or Ebila-Piri” as shown in defendant’s plan, exh. T, is the exclusive property of the defendants. They denied the other native court’s suits pleaded by the plaintiffs. They too, pleaded that in Nembe native xcourt suit no. 355/5 of 1915, the 1st set of defendants had judgment against the plaintiffs. Also in suit No. 273/28 in the same court, the defendants were found to be in possession of the land. They also pleaded other acts of long possession and ownership from time immemorial.

In his judgment, the learned trial Judge held that for the plaintiffs to succeed in the present suit, it is their duty to prove that the lands involved in the Oloibiri native court suits no 17/1958 and 18/1958 (exhs. U and V) are the same with the land in dispute in the court suit no. P/57/58. Relying almost exclusively on the plan and pleadings in the High Court suit, which had been tendered as exhs. J3-J5, he found that the land in dispute in the instant case includes the areas litigated upon in exhs. “U” and “V”.

He regarded the criminal proceedings, exh. “C” as an act of possession. He also came to the conclusion that the defendants had set up conflicting defences on exh. “U” and “V” in that with one breath they attacked them as invalid, but in another, they contended that they relate to other lands. He did not think much of those defences. On the whole, he concluded that as the native court had in exhs. “V” and “U” awarded to the plaintiffs the land in dispute, they were entitled to succeed in this suit.

On appeal to the Court of Appeal, that court, Coram Aseme, Aikawa and Katsina-Alu, JJ.C.A., allowed the appeal. Their Lordships held:
1. That in view of the decision in Kodilinye v. Mbanefo Odu (1935) 2 W.A.C.A. 136, p. 337-8, the onus was on the plaintiffs in this case of declaration of title to adduce evidence in proof of the issues joined on the pleadings. But in the instant case, the plaintiffs have failed to discharge the onus.

2. That the learned trial Judge’s judgment was an indistinguishable amalgamation of the pleadings and evidence in this suit and exh. J, J1-J5 with the result that pleadings were treated as if they were evidence before the court.
3. That that amalgam also affected the learned Judge’s treatment of the pleadings in suit no. P/57/58, which were tendered as exhs. “J2” and “J3”, as if they were evidence before him in this case and which established the truth of what were contained in them.
4. He also wrongly used the same erroneous approach to resolve the vital issue of the identity of the land in dispute in the native court suit, exhs. “U” and “V”, vis-a-vis the land in dispute in this case.

Aggrieved by the judgment of the Court of Appeal, the plaintiff (hereinafter called the appellants) has appealed to this court. The three issues for determination set out by learned counsel in his brief on behalf of the appellants were as follows:
“(i) What is the nature of the claim before the trial court Whether it is a claim for declaration of title and ownership to land, in the view of the Court of Appeal OR for a declaration that plaintiffs adjudged by the Oloibiri native court in two judgments (exhibits “U” & “V”) to be the owners of the land in dispute are the persons entitled to receive the compensation paid by Agip Nigeria Ltd., in the view of the learned trial Judge. (Ground 2 of the grounds of appeal).

(ii) What is the burden of proof on the plaintiffs on their claim and if plaintiffs discharged such burden Is the Court of Appeal right that the plaintiffs have an onus to discharge a burden of proof as if the claim is a fresh action for declaration of title to land e.g. proof by acts of possession or ownership, by traditional history, proof of boundary to support a declaration to certain identity of land etc, if not, is the Court of Appeal justified in re-assessing and re-evaluating the evidence and concluding that plaintiffs did not discharge the burden of proof to support a declaration of title to land or concluding differently from the trial court’s that acts of possession given by defendants are irrelevant to establish title against the true owner. (Ground 2, 5 & 6 of the grounds of appeal).

(iii) Whether the native court judgments (exhibits “U” & “V”) estopped the defendants in relitigating the title of the plaintiffs by bringing the present suit. What is the principle to establish estoppel as to identity of the subject matter and is the Court of Appeal right that to establish estoppel the land in dispute in the native court case in plan exhibit “K” (defendants plan in suit P/57/58) must be shown to have same description and features to satisfy the “acid test” and to establish the identity of the land. (Ground 1, 3 & 4 of the grounds of appeal).”
The formulation of these issues is diffused. The learned counsel for the defendants (hereinafter called the respondents) had a better formulation of the issues thus:
“3.2 (a) Was the Court of Appeal correct in dealing with the case on the footing that title to the disputed land was in issue at the trial
(b) If so, is the Court of Appeal also correct in holding that the onus of proof rested with the plaintiffs

(c) And if so, did the plaintiffs adduce at the trial, enough legal evidence (duly accepted by the trial court) in proof of their case so as not to warrant interference by the appellate court with the primary function of the trial court in fact finding”
The learned counsel for the appellants, Mr. Peters, conceded it that no plans were used in the native court suits, exh. “U” and “V”. But, he pointed out, that when the respondents failed to have the suits transferred to the High Court, they took out a fresh action, suit no. P/57/58 (exhs. J, 11- J5), in the High Court. They filed a plan, exh. “O” with their statement of claim  exh. 12.

Appellants also filed a plan, exh. “K”, with their statement of defence, exh. 13. The respondents did not proceed with the case which was struck out on 20/13/67. He pointed out that the appellant’s plan, exh. “M” in this suit, is only a reproduction of their plan, exh. “K” in the 1958 suit, the only difference being that they have now shown the position of 2nd set of defendants “Nimbe A Location” as being inside the area covered by exhs. “K” and “N”. Also respondent’s exh. “T” in this suit is only a reproduction of exh. “O” in the 1958 suit, with the position of the location now shown.

From the above facts, learned counsel on behalf of the appellants submitted that the learned Justices of the Court of Appeal were wrong when they approached the appeal from the footing that the appellants were obliged to prove title. All that the Court of Appeal should have done, as the trial Judge did, rightly in counsel’s submission, was to have examined the proceedings in the native court suits, exhs. “U” and “V”, and declare that the appellants had been adjudged owners of the land in dispute in which the location lies. In his submission, the learned trial Judge was right when he held that the appellant’s duty was to show that the native court suits exhs. “U” and “V”, relate to the same land as the High Court suit, exhs. J, 11- J5.

So, the Court of Appeal was in error as to the issue of onus of proof when it held that the appellants had a duty to proof title again. He cited D. O. Idundun & Ors. v D. Okumagba & Ors. (1976) 1 N.M.L.R. 200 also Sunday Piazo v Chief W. Tenalo & Ors. (1976) 12 S.C. 31. The declaration by the native court in exhs.”U” and “V” is binding on the parties in the instant suit, he submitted Mobil Oil Nig. Ltd v O. A. Coker (1975) 3S.C. 175 at p. 178. The respondents are estopped from disputing that fact. They can, therefore, no longer validly raise any acts of possession against the appellants, who are true owners. See Sanya v Johnson (1974) 11 S.C. 207, p. 209; Shell BP. Dev. Co. of Nig. Ltd. v Abedi (1974) 1 S.C. 26, 46.

In his reply, learned counsel for the respondents, Dr. Ibik, submitted that the material issues in a case, including the onus of proof, are determined not from the formulation of the claim but from the pleadings. He pointed out that the appellant’s pleadings raised such issues as that they were owners in possession of the land in dispute wherein the location lies, that the land adjudged to be appellant’s in exhs. “U” and “V” are the same with that comprised in exh. “N”, and that their pleaded traditional history and acts of possession support the inference that they were exclusive owners.

As respondents joined issues on these, title was put in issue and the learned trial Judge, failing which the Court of Appeal, was obliged to go into the issues. Also, as the actual parcels of land, the subject of exhs. “Y” and “V”, were not shown on any survey plan and the location had not come into existence in 1958, it was necessary to call evidence also to establish a nexus between exhs. “U” and “V” and the location.

I shall begin my consideration of the issues in this appeal by stating that there can be no question as to the validity and binding effect, as between the parties, of the native court judgments, exhs. “U” and “V”. Although the respondents have sought to attack it on a number of grounds, such as that some members of the trial bench were interested in the outcome of the litigation; that it was a default judgment obtained in the absence of the respondents; and that it was the registrar of the native court who forestalled the respondent’s efforts to appeal against the judgment.

I must advise myself that much as some of those grounds could be good grounds for appeal, the judgments are not null and void, they remain valid until they are set aside. And if the cause of action in the instant suit had been determined in a previous suit, it has merged in the judgment transit in rem judicatam. It is an application of the rule of public policy that as against the same parties, no man shall be vexed twice for one and the same cause on the same issues (nemo debet bis vexari pro una et eadem causa).

But having said so, I must advert to the fact that, as a matter of practice, a person who has had a judgment in his favour in a land case in a native court may, in a present suit adopt one or the other of three courses of action, depending on the circumstances.
Firstly, the native court suit may have been conducted with a plan, or, not having been conducted with a plan, the description of the land in the proceedings, including the inspection notes in the case, may leave no room for doubt as to the identity of the land and the features therein and precise boundaries of the land in dispute. The successful party can hang onto the judgment and wave it on a successful plea of res judicata against the unsuccessful party or his privy or use it as a basic for an action in trespass. See Mobil Oil (Nig.) Ltd. v O. A. Coker (1975) 3 S.C. 175, p.184.

Secondly, he may recognize the potential weakness in his judgment in a land case conducted without a plan. He could in such a case go to, say, the High Court and file a fresh case, and file a plan reflecting the native court judgment. Even though the existing decision in the native court is no less binding than the High Court judgment, he is entitled to add something to it by getting the second declaration tied unto a plan. See on this Okoli Ojiaka & Ors. v. Onwuma Ogueze & Ors. (1962) All N.L.R. 58, at p. 62.

Thirdly, he may, in recognition of the fact that res judicata is more appropriately a weapon for defence rather than of offence, take the view that he ought not to go to court and invoke the court’s jurisdiction by filing a suit, and then turn round to tell the same court that its jurisdiction has been ousted, by raising a plea of res judicata against the same court before which he is seeking for a remedy. He may, in such a case in which he is a plaintiff, sue and plead the previous judgment in his favour as a relevant fact under section 54 of the evidence act. See on this Mogo Chinwendu v. Nwanegbo Mbanali & Anor. (1980) 3 – 4 S.C. 31, at p. 50.

In view of the far reaching issues of fact which the appellants raised in their statement of claim in this case and which the respondents denied or traversed, the absence of a plan or any clear description of the lands in exhs. “U” and “V”, it appears to me that they opted for the second alternative. They did not simply put forward exhs. “U” and “V” and decide to stand or fall by them.

They pleaded other facts such as their tradition and numerous acts of possession and ownership, even though their claim on the writ set out above was more narrowly formulated. It is now settled that a statement of claim supercedes the writ, provided that the party does not in the statement of claim set up a case totally different from the writ. See Cave v. Crew (1893) 62 L.J. Ch. 530; Ekpan v. Uyo (1986) 3 N.W.L.R. (Pt.26) 63. As it is so, the learned counsel for the appellants cannot be right when he submitted that title having been awarded to the appellants already, was no longer in issue. He put it in issue by his pleadings. Indeed, as issues had arisen on the above questions of facts at the close of pleadings, the learned trial Judge had a duty to resolve them at the trial. See on this Dipcharima v Ali (1974) 1 All N.L.R. (Pt. 2) 420. (1975) 6-9 S.C. 163, Metal Construction (W.A.) Ltd & Ors
His failure to resolve them was a clear ground of appeal which entitled the Court of Appeal to intervene.                

I must pause here to observe that learned counsel for the appellants, in his submission, appears to be perpetuating a fundamental error in the approach of the learned trial Judge. He addressed us as indeed the learned trial Judge so put the case for the appellants in the High Court as though the duty of the appellants was to establish a nexus between the present suit and the suit no. P/57/58 (exhs. J, J1- J5) which has not been tried at all.

This is in error. For going by the claim and pleadings of the appellants, they sought to found their case on the previous native court suits, exhs. “U” and “V”. Their duty was rather to establish a nexus between the land in litigation in this suit and lands awarded to the appellants in exhs. “U” and “V”.

In my view, it would not avail them to simply compare the land at present in dispute as the same with that in suit no. P/57/58 which was simply struck out. As for the correct value that could be put on the pleadings and plan filed in that previous suit, I think they were admissible in the instant suit to prove their own existence, the fact of institution of the suit and to show the facts in issue between the parties and no more.

For to all intents and purposes, they were merely suggestions of counsel, not declarations of the parties, and so are not receivable to prove the truth of the averments therein contained, even as admissions, unless they are verified on oath, or signed or otherwise adopted by the party against whom it is to be used. See on this Phipson On Evidence (12th Edn.) para. 1432; Alhaji Adisa & Ors. v Sabalemotu Saibu (1977) 2 S.C. 89, at p. 115  also British Thomson Houston Company, Ltd. v British Insulated and Helsby Cable Ltd. (1924) 1 Ch. 203, at p. 210. The learned Justices of the Court of Appeal were therefore right in holding that the learned trial Judge in that respect violated rules of law, the law of evidence and procedure when he treated them as proof of the truth of what they contained.
The learned counsel for the appellants also made heavy weather out of the name of the land in dispute. He submitted that because the land litigated upon in both exhs. “U” and “V” was called “Edumato-Emeni” alias “Edumanyo”, just as in the present suit, then it follows that the lands litigated upon in exhs. “U” and “V” are the same with the land now under litigation. With respect, this is a preposterous submission. I do not think that it assists the appellants any bit to show that the names of the lands in dispute in the previous as well as the instant cases are the same. This is because, as rightly pointed out by Dr. Ibik, the name given to any particular piece of land is of little, if any, assistance or value in ascertaining the precise boundaries or features of the land. What is required of a plaintiff in order to discharge the onus incumbent on him with respect to the quantum and identity of the land is to prove the boundaries with certainty, unless it is well known to the parties. And what is necessary in such a case is the establishment of such features and boundaries which a surveyor can pick up on the ground and produce a plan thereon: See on this Chief Nyong Etim & Ors. v Chief Ben Oyo & Ors. (1978) 6 & 7 S.C. 91, p. 97;
Udofia v. Afia 6 W.A.C.A. 216, Amala v. Modekwe 14 W. v. Paul ChiA.C.A. 580. See also S.C. 123/1988;
Raphael Udeze & Ors v. Paul Chidebe & Ors. (1990) 1 N.W.L.R. (Pt.125) 141.
I am satisfied that mere name of the lands in dispute in the previous and the instant suits can serve no useful purpose in the important task of establishing the precise boundaries, identity and features of the lands.

Then I shall deal with the final question as to whether the native court suits, exhs. “U” and “V”, estopped the respondents from disputing the title of the appellants in the instant suit. I shall approach it by directing my inquiry to ascertaining whether, the erroneous use of the pleadings and plan in exhs. J, J1-J5 apart, the evidence called at the trial established that the land in litigation in this case is the same with those over which title was decided in favour of the appellants in exhs. “U” and “V”.

The evidence of Mr. Theophilus John, (P.W.2) who was a common surveyor to both parties, under cross-examination, is to the effect that whereas the respondent village, Akipelai (Akipeleyia) is near the land in dispute, the appellant’s village, Opomatobo, is far from it; that in fact, going from the land in dispute to the appellants village, by the nearest route, one has first to traverse the village of Amakalakala. These facts are borne out by the appellant’s plan, exh. “N”. So, the appellants cannot rely on contiguity of the land in dispute to their own land to urge on us an inference that the land in dispute is their own.

But the most devastating piece of evidence in this regard came from P.W.1, their key witness who comes from the appellant’s village. In answer to questions designed to show that there is no nexus between the features mentioned in exhs. “U” and “V” on one hand and those in the appellants’ plan, exh. “N” in this suit, he testified as follows:

“It is true that in exh. “N” there is no Akangara creek. There is no Oginaligogo creek in exh. “N”. I know some of these creeks personally.”
The full effect of this piece of evidence will be appreciated when it is noted that in exh. “U”, the claim was for:

“Declaration of title of ownership over the piece of land known as Edumata Enani alias Edumanyo valued 5 bounded on the downstream by Akangara island in the inland with Amakalakala by Oginaligogo and the upstream by Ijiekina with Imemiagha.”
(italics mine)

Thus, by the above piece of evidence, the appellant’s key witness admitted that the necessary nexus between the previous suit, exh. “U”, and the plan made in this suit was lacking. Similarly, it is impossible to relate any of the features mentioned in exh. “V”, namely: Obhia Emeni, Atotobh creek, Sabatoru, Aku tree, etc. to the features shown on exh. “N”. I would like to seize this opportunity to point out that, although, in theory, a judgment of a native court is as valid as that of any other court, yet, as a weapon of offence or defence in a practical forensic contest in court, the successful party may sometimes discover, to his chagrin, that that weapon in his armoury has a potential weakness.

It may, as in this case, turn out that he needs a good deal more to identify the precise boundaries and features of the land to which the judgment relates. When in a subsequent suit in which the judgment should have been useful, it turns out that a plan produced as a purported reflection of the judgment cannot be related to the features and the boundaries of the land, the subject of the previous suit, the previous judgment though valid, becomes unavailing. So it is in this case. The appellant’s plan, exh. “N”, should have been a mirror of the distinctive features in exhs. “U” and “V”. But it is not.

So, the necessary nexus between those previous judgments and the instant are just not there. It is not true, as learned counsel for the appellants submitted in argument that the respondent’s star witness, D.W.5 admitted such a link. As Dr. Ibik pointed out, what learned counsel for the appellants referred to as admissions relate to exhibits M, M1 and S, i.e. suit nos. 201/57, PHC/201/57 and PHC/14/78. I do not see how these can assist the appellants in the inquiry as to whether there was a link between exhs. “U” and “V”, on the one hand, and the land delineated in exh. “N”, on the other.

For the above reasons, I have come to the conclusion that the learned Justices of the Court of Appeal had very good reasons for reversing the learned trial Judge on the facts. For, true it is now perfectly settled that findings on primary facts are matters essentially within the province of the court of trial, and that there is a rebuttable presumption that a Judge’s conclusions on the facts are correct. See on this Akesse v Ababio (1935) 2 W.A.C.A. 264; Bakare Folorunso v I. A. Adeyemi (1975) 1 N.M.L.R. 128.

For this reason, an appellate court must always tread warily when called upon to reverse a court of trial on the facts, and may well take the view that, unless an obvious error has been shown on the record, it is not open to it to substitute its own views for those of the court of trial which heard and saw the witnesses testify Balogun & Ors. v Agboola (1974) 1 All N.L.R. (Pt. 2) 179. Yet, I must bear in mind the fact that the duty of the Court of Appeal was to rehear the case and, to that intent, reconsider the materials before the learned trial Judge. Then, as it was not a mailer which depended on credibility of witnesses, it could reach its different judgment.

But in this case, after disregarding such materials as exhs. J1 to J5 which the learned Judge treated as evidence establishing the truth of what were averred therein, which they could not be, and considering carefully other evidence and circumstances, such as the failure of the appellants to establish a nexus between the land, the subject of this case, and those of exhs. “U” and “V”, the lack of established facts within living memory to make their evidence of tradition more probable. See Agedegudu v. Ajenifuja (1963) 1 All N.L.R. 109, p.111; Alade v. Awo (1975) 4 S.C. 215, p. 228, I have come to the conclusion that the Court of Appeal came to the correct decision when it decided that the appellant did not prove their case. I am satisfied that the Court of Appeal was entitled and right to have allowed the appeal and dismissed the appellant’s claim.

The appeal therefore fails. I dismiss it with costs which I assess at N500.00 in favour of the respondents, and against the appellants.

UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother Nnaemeka-Agu, J.S.C. I entirely agree with the reasons and conclusion therein. Accordingly, I too dismiss the appeal with N500.00 costs to the respondents.

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SC.151/1987