Edward Nikagbatse V. Labord Opuye (2010)

LawGlobal-Hub Lead Judgment Report

OYEBISI .F. OMOLEYE, J.C.A.

This is an appeal against the decision of the Warri Judicial Division of the Delta State High Court (hereinafter called the lower Court) per J.A. Obi J, delivered on 30th November, 1994.

The Appellant herein was the plaintiff in the lower Court. He claimed against the Respondent as defendant for the following:

(a) A declaration that the property known as No. 71, Okere Road occupied by the defendant on which the defendant demolished a mud building to erect the present block building is the property of the plaintiff under Itsekiri native law and custom and that any purported grant of the said property to the defendant by one Eworitsemogha Oki or by any other person or persons is null and void or is hereby avoided. (sic)

(b) A declaration that the defendant residing at the said No. 71 Okere Road, Warri is doing so as a trespasser being in occupation without the consent, authority or permission of the plaintiff.

(c) An order ejecting the defendant from the said property and granting possession thereof to the plaintiff.

(d) An order of perpetual injunction restraining the defendant, his agents or servants or any person or persons claiming through him from breaking and entering into the said property or in any manner interfering with the enjoyment of the said property by the plaintiff or any person claiming by or through him.

(e) An order of general damages of N100,000.00 against the defendant.

(f) An order setting aside any purported certificate of occupancy obtained by the defendant in respect of the subject-matter of this suit as being null and void and of no effect whatsoever.

The brief background facts of this matter from the point of view of the Appellant are that, the Appellant’s grand-father, Oki Nikagbatse who died in 1929 was the owner of the property in dispute among others. The said Oki Nikagbatse bore three children namely, Eworitsemogha (m), Joel Ogharanemeye (m) and Efejuku (f), in order of seniority. It was Eworitsemogha, the eldest male child that later sold the property in dispute to the Respondent. Joel Ogharanemeye was the father of the Appellant and two others. According to the Appellant, the property in dispute with the other properties of late Oki Nikagbatse were given to the Appellant’s father en bloc. For, it was alleged that of the three children of late Oki Nikagbatse, the Appellant’s father, Joel was the beloved and the entire vast landed property of Oki including the personal house where Oki lived and died were given to Joel. While Eworitsemogha, the eldest child who was considered to be irresponsible was virtually left out of the scheme of things and disinherited.

However, after the demise of Oki, Joel, the Appellant’s father was said to have obliged his elder brother, Eworitsemogha by permitting him to live in their father’s house which the Appellant’s father had rebuilt after the death of their father, Oki. Eworitsemogha in addition was said to have been allowed to collect the rent of some other houses built by the Appellant’s father for his upkeep. Eworitsemogha predeceased his younger brother Joel who died in 1948. After the death of the Appellant’s father, one Madam Erdmann a half-blooded sister of his took over the management of the entire family property. Madam Erdmann later became sick and unable to effectively look after the said property. From that point, the Appellant’s father’s mother, Ajuremikpiaghan Agbeyegbe took over from her. By which time, Eworitsemogha had allegedly began to meddle and deal improperly in the entire Oki’s properties.

Contrariwise, the Respondent had claimed that, Eworitsemogha sold part of the property in dispute to him in 1953 for the sum of twenty-seven pounds. The deed of conveyance evidencing that is Exhibit C. According to the Respondent there was a mud-house on the landed property at the time of the sale which he later knocked down and rebuilt. The Respondent has since been in possession and actually built other structures on the said property. It was during one of the development exercises that the Respondent was accused of trespassing into some other portion of the Oki’s property, beyond the portion originally purchased by him from Eworitsemogha. It was in respect of the excess portion that he was sued to the Warri Divisional Grade B Customary Court. In that suit, Eworitsemogha was a co-defendant and it was one Lucky, the elder sister of the Appellant who sued as plaintiff. The action was instituted by Lucky in a representative capacity. The proceedings and judgment of the Customary Court in respect thereof is Exhibit D. The said judgment was appealed, first to the Magistrate Court and subsequently to the High Court, both in Warri, Delta State. At the Warri High Court, the Respondent was adjudged the owner of the property and in respect of the portion in controversy, he was ordered to pay damages in the sum of eighty-five Pounds in lieu of the trespass committed thereon by him. The judgment of the Warri High Court in that suit was delivered on 25th October, 1965, it is Exhibit E. See pages 100 to 119 of the record of appeal. The Respondent has since remained in quiet possession of the entire property in dispute. The Appellant’s uncle, Eworitsemogha later died in 1986. However, on 14th March, 1988, the Appellant filed an action at the Warri High Court for declaration of title to the same property, damages for trespass and a restraining order of injunction against the Respondent. The suit is the subject-matter of this appeal as earlier on stated above.

In the bid to establish his said claim at the lower court, the Appellant called five witnesses, while the Respondent gave evidence and called one witness in defence of the case against him. Some exhibits were tendered in evidence, these are, Exhibits A, A1-A8, B, B1, C – G. At the close of the parties’ cases, their respective learned counsel addressed the lower Court. At the end of the trial, all the claims of the Appellant were dismissed. The judgment of the lower Court is contained in pages 68 to 95 of the record of appeal. The Appellant was not happy with the judgment, hence, he filed this appeal to this Court ‘vide’ his notice and grounds of appeal which contains seven grounds of appeal. The notice and grounds of appeal dated 16th February,1995 was filed on 20th February, 1995, see pages 120 to 126 of the record of appeal. For ease of reference, the seven grounds of appeal are hereunder reproduced verbatim as follows:

GROUND 1.

The learned trial Judge erred in fact and in law when he stated:

When in 1961, the plaintiff’s sister instituted action against defendant and Eworitsemogha per Exhibit ‘D’, the land in dispute was conceded to Eworitsemogha as his own which he was free to deal in any manner he liked. According to the finding in that proceeding already highlighted, the mud house that originally stood there, belonged to Nikagbatse and upon his death passed to Joel.

It later passed to Eworitsemogha along with four rooms shared to him from the estates of joel in accordance with Itsekiri native law and custom. This house is clearly different from the house that Nikagbatse lived, died and was buried and where Eworitsemogha later lived. Going by the judgment in Exhibit ‘D1’, Nikagbatse was never buried in the mud house, sold to the defendant, cause of action in this suit. His maternal parent was said or supposed to have been buried there.

It follows that the case put forward by the plaintiff is at variance and inconsistent with their case in Exhibit ‘D’. The case in Exhibit ‘D’ postulates that the mud house sold to the defendant was Eworitsemogha’ s by inheritance from JoeL By his pleadings and evidence in this Court plaintiff is saying the mud house in question was Nikagbatse’s house where he lived and died.

PARTICULARS OF ERROR.

(i) That Eworitsemogha inherited four rooms and a mud house from Joel his younger brother, is a wrong decision in that the learned trial Judge ascribed the wrong meaning to the word ‘shared’ used in the judgment in Exhibit ‘D’ and ‘apportioned’ used in the judgment of Justice Arthur Prest in Exhibit ‘D’. He failed to construe the words in their purely legal sense and so failed to uphold the submission that Eworitsemogha merely had the usufruct of the rooms and the mud house given to him for his upkeep for life while he remained of good behaviour.

(ii) Exhibit ‘D’ nowhere postulated that the mud house allegedly sold to the defendant was Eworitsemogha’s by inheritance.

(iii) In saying that Nikagbatse was never buried in the mud house sold to the defendant, cause of action in this suit and that his maternal parent was said or supposed to have been buried there, the learned trial Judge did not consider the independent evidence in the case before him but rather simply adopted the judgment of Onuwaje, President of the. Divisional Grade B, Customary Court, Warri and thereby followed the error of the Customary Court’s President who in evaluating the facts before him erroneously state that the house sold to the defendant was the house in which the grandmother of plaintiff’s grandfather was supposed to have been buried, an error made manifest by the evidence of the plaintiff’s 2nd witness in the case before the Customary Court to which the President himself made reference as the basis of his conclusion and which became part of his judgment by incorporation.

(iv) The learned trial Judge clearly did not examine and consider the case put forward by the plaintiff in Exhibit ‘D’ even though Counsel drew his attention to it and thereby came to the wrong conclusion that the case put forward by the plaintiff in this case was at variance and inconsistent with their case in Exhibit ‘D’. There was no such variance or inconsistency.

(v) By deciding the matter on the basis of whether the mud house in question was the one in which Nikagbatse was buried or not, the learned trial Judge dealt with an issue not raised and joined by the parties.

(vi) The assumption that the mud house sold to the defendant, if at all, was the mud house in which Nikagbatse’s grandmother was buried and not the one in which Nikagbatse himself was buried cannot lead to the conclusion that Eworitsemogha was a bonafide owner of that house by inheritance from Joel, plaintiff’s father as the learned trial Judge decided. Exhibit ‘D’ nowhere postulated that the mud house allegedly sold to the defendant was Eworitsemogha’s by inheritance from Joel.

GROUND 2.

The learned trial Judge erred in fact and in law in his evaluation of evidence before him when he stated that the compound of Joel Nikagbatse in Okere was not an individual family Property.

Point of Error.

(i) In evaluating evidence the law enjoins the Court to make legal deductions and inferences from known facts which the Court did not do in this case. For Example, it was the fear that Eworitsemogha would, if left alone, gamble away the compound after the death of their father the original Nikagbatse that made the original Nikagbatse to give the property to Joel his second son as a gift inter-vivo knowing that Joel would be the only one who would be capable of preserving the compound for posterity. It would not have been possible, therefore, that this same property could have, upon the death of Joel, been shared so as to give Eworitsemogha an out and out inheritance over parts of it which he was free to dispose of to strangers at will and so dispossess the family of it against the spirit and intendment of the original Nikagbatse.

(ii) A family compound is an enclosure (a clausum) exclusive to the family. It is a matter for judicial notice that tradition abhors the admission of strangers into family compounds with rights of ownership to parts of it.

GROUND 3.

The learned trial Judge erred in law when he said that:- in 1953 when the land in dispute was old to the defendant title to it was vested in Eworitsemogha who sold it in virtue of inheritance from the estate of plaintiff’s father when the entire estate was distributed by Omosohwofa at the direction of madam Erdmann.

PARTICULARS OF ERROR.

(i) The word Distribution is a term of art and when used in a legal document confers only a right to the use of the property for life and no more.

(ii) The alleged member of Oki family who witnesses the unregistered deed of conveyance Exhibit ‘C’ did not act on behalf of the Oki family. In any case the distribution was not done by the Oki family but by Omosohwofa acting on the instruction of madam Erdmann and therefore on her behalf. Omosohwofa did not act and did not purport to act on behalf of the Oki family.

GROUND 4.

The learned trial Judge erred in law in holding that the doctrine of judicata, laches, acquiescence and long possession were successfully raised by the defendants in this case.

PARTICUALRS OF ERROR.

(i) Exhibit ‘E’ did not confer title of the land in dispute on the defendant but only made him ,a tenant at will in respect of the extension. The Court was in error to have construed the order to pay $85 in lieu of injunction made by the Judge in Exhibit ‘E’ as tantamount to the Court compelling an owner to sell his land to a trespasser which the Court is not competent to do and the Court must be presumed not to have done.

(ii) The Court in Exhibit ‘E’ was silent over the existing building as it was not in issue in the case.

The learned trial Judge was in error to have construed such silence as amounting to res judicata.

(iii) In not believing the copiously corroborated and substantiated evidence that Eworitsemogha allowed the defendant to build upon the condition that the house would revert to the family after 20 years, the learned trial Judge misdirected himself in law and in fact when he based his disbelief on the erroneous belief that Nikagbatse was never buried in the mud house which the defendant demolished and thereby held erroneously that estoppel applied against the plaintiff.

(iv) The inference drawn by the learned trial Judge from the unregistered deed tendered in the 1961 case in Exhibit ‘D’ thereby attributing to Lucky, plaintiff’s mother and plaintiff’s aunt, Madam Erdmann knowledge of the sale of the defendant of the mud house, is equivocal as the learned trial Judge did not assess their intellectual ability and in what light they understand Exhibit ‘C’, the unregistered deed.

(v) That neither Lucky nor her mother nor her aunt did anything since 1961 when Exhibit ‘C’ came to light for the first time is explainable in many ways:

(i) They might not have understood the full import of Exhibit ‘C’.

(ii) They had protested to no avail.

(iii) Lucky was a minor at that time and was sick soon after the case and died eventually in 1982.

(iv) The aunt was already ailing and incapacitated.

(v) The mother was petrified by all that was happening and became withdrawn for fear of untimely death.

All these possible inferences are borne out of the evidence in the case.

GROUND 5.

The learned trial Judge erred in law in holding that Lucky Nikagbatse who was plaintiff in Exhibit ‘D’ acted in a representative capacity.

Point of Error

Evidence abound to show that at the time of instituting the action in Exhibit ‘D’ the plaintiff in that case was a minor and no evidence of authorization by the Joel Nikagbatse-Oki family of which the plaintiff in this case is head, being the male child, to so act.

GROUND 6

The learned trial Judge erred in law in affixing plaintiff with knowledge of what went on between 1953 and 1965 thereby adjudging him as caught by the doctrine of laches, acquiescence and long possession.

Particulars of Error.

(i) The law presumes a minor of up to age of 7 years as a dolus incapax. This presumption is irrebuttable. The law also presumes a minor of age 8 to 11 years as dolus incapax excepting that the presumption is rebuttable.

(ii) The law recognizes that an infant (any person under the age of 21 years) is not fully capable of managing his own affairs or looking after his own interests. Thus the law permits an infant to repudiate even acts done on his behalf by his guardians on coming of age.

(iii) The learned trial Judge failed to consider the very important evidence regarding the state of mind of the plaintiff who out of fear, was on the run for his life which was said by sooth-sayers to be in danger of extermination.

(iv) There was no suggestion that the plaintiff or any of the relations of the plaintiff were willfully passive to the entry on the land by the defendant. There was opposition to him all through.

(v) The defendant in purchasing the land from Eworitsemogha did not act bonafide but rather fraudulently. This was evident from his non disclosure of the fact of the sale to members of the plaintiff’s family when he was first confronted by the family at the time he was demolishing the building.

(vi) The learned trial Judge having held that defendant has an equitable interest only, should have considered the competing equities on either side.

GROUND 7

The learned trial Judge erred in law when he asserted that the claim for trespass is inconsistent with the claim for possession.

Point of Error

(i) An owner of land who is not in physical possession can claim in trespass against a stranger in physical possession by showing that he has a better right to possession, that, he is the owner. The case of AROMIRE V. AWOYEMI (1972) 2 S.C. 1 at 7 is not apt.

(ii) The defendant is a tenant at will although the learned trial Judge thinks differently which is erroneous in the light of the evidence.

In the Appellant’s brief of argument dated 30th August, 2004, filed on 22nd September, 2004 which was deemed properly filed and served on 26th March, 2007, the learned counsel for the Appellant distilled four issues from the seven grounds of appeal for the determination of this appeal. The four issues read thus:

“(1) Whether the learned trial Judge was right to have held that Exhibit D conferred absolute ownership of the disputed land on Mr. Eworitsemogha, the elder brother of the Appellant’s father, who could validly transfer the right of ownership of the property to the Respondent by virtue of Exhibit C?

(2) Whether the learned trial Judge was right to have held that the property of the father of the Appellant was not an undivided family property?

(3) Whether the learned trial Judge was right to have upheld the plea of ‘res judicata’, laches and acquiescence and long possession put up by the Respondent?

(4) Whether the learned trial Judge was right to have held that the claim of the Appellant for trespass was inconsistent with his claim for possession?

On the other part, the learned counsel for the Respondent filed the Respondent’s brief of argument by the order of this Court The Respondent’s brief of argument dated 13th March, 2008 was filed on 14th March, 2008. In it, all the four issues formulated by the Appellant’s counsel were adopted by the Respondent’s counsel. These have already been reproduced above.

At the hearing of this appeal by this Court on 15th October, 2009, the learned counsel for the Appellant, Mr. C.O. Scott-Emuakpor identified, adopted and relied on the Appellant’s brief of argument in urging upon this Court to allow this appeal. On the other part, Mr. AV. Etuwewe, the learned counsel for the Respondent adopted and relied upon the Respondent’s brief of argument. He urged this Court to dismiss this appeal and uphold the judgment of the lower Court.

Whether the learned trial Judge was right to have held that Exhibit D conferred absolute ownership of the disputed land on Mr. Ewortsemogha Nikagbotse, Appellant’s father’s elder brother who could thereby validly transfer the right of ownership of the said property to the Respondent by virtue of Exhibit ‘C’?

I have perused the four issues formulated for determination by the Appellant’s learned counsel and adopted by the Respondent’s learned counsel. I consider them sufficient for the proper resolution of this appeal. However, I shall consider issues one and two together because they are intertwined and the two other issues seriatim.

ISSUES ONE AND TWO

Whether the learned trial Judge was right to have held that Exhibit ‘D’ conferred absolute ownership of the disputed land on Mr. Ewortsemogha Nikagbotse, Appellant’s father’s elder brother who could thereby validly transfer the right of ownership of the said property to the Respondent by virtue of Exhibit ‘C’?

Whether the learned trial Judge was right to have held that the Appellant’s father’s property was a divided family property?

The learned counsel for the Appellant submitted that, there was uncontradicted evidence as shown in Exhibit ‘D’ that upon the Appellant’s father death his property was shared. And that the said Appellant’s father was given the said property amongst others by his own father that is, the Appellant’s grandfather due to the Appellant’s father’s outstanding qualities. But that the Appellant’s father, Mr. Joel Nikagbatse only allowed his elder brother, late Mr. Eworitsemogha Nikagbatse to use some of the rooms for letting for his upkeep during his lifetime. This is because according to the Appellant, Mr. Eworitsemogha Nikagbatse had been disinherited from any family property. The learned trial Judge despite accepting these pieces of evidence that is, findings of facts which are correct and in accordance with the law and common sense, he erroneously in counsel’s view held later in his judgment that the land in dispute belonged to Eworitsemogha Nikagbatse by inheritance from his younger brother Joel, the Appellant’s father, upon Joel’s death.

Regarding the property in dispute, the learned counsel for the Appellant submitted that the evidence adduced relating to the said property is a pointer to the fact that its identity was not in doubt. The house, which the Respondent demolished and in its place built his own house was the house in which Eworitsemogha Nikagbatse, the Appellant’s uncle lived, died and was buried. Consequently the said property can not pass on to Appellant’s uncle through inheritance from Appellant’s father, who was the younger of the two especially since the Appellant’s father had other children who survived him.

It was further contended in favour of the Appellant that, during the lifetime of the original Nikagbatse Oki, the Appellant’s grand father, his entire estate was handed over to Joel Nikagbatse, the Appellant’s father, who thereby became owner of the entire estate. According to the Appellant’s learned counsel, this was to ensure that the property and the compound are preserved in the name of Nikagbatse for posterity. The late Eworitsemogha Nikagbatse, the Appellant’s father’s elder brother who is the Respondent’s vendor was seen to be a man who would gamble away the family property if given a free hand. This was why he was deprived of any right to the property ‘in extenso’ although he was the first male child of their late father’s. The learned counsel for the Appellant argued that, it is the duty of the courts in performing their adjudicatory duty to evaluate evidence that is, make legal deductions and inferences from the facts properly adduced before them. In his view, the lower Court failed in this duty. For, had the lower Court properly evaluated the evidence adduced before it, it could not have reached the conclusion that the property in dispute was family property which devolved on the vendor of the Respondent after the said family property had been shared among the surviving children according to native law and custom.

It was reiterated in favour of the Appellant that, Exhibit ‘D’, a judgment of a court cannot be used as evidence in a subsequent trial except in special circumstances. The Appellant’s learned counsel went ahead to state the meanings of the words ‘sharing’, ‘distribution’, or ‘apportionment’ as contained in various editions of the Dictionary. He opined that the said words that is, ‘sharing’, ‘distribution’, or apportionment’ do not convey the idea of ownership as would the word ‘partition’. That the employment of those words to convey a clearly different interpretation of same by the learned Judge of the lower Court was a misconception which led to erroneous conclusions which in turn had occasioned a miscarriage of justice to the Appellant.

To buttress his contentions, the Appellant’s learned counsel relied on the Webster’s Encyclopedic Unabridged Dictionary of English Language where the definitions of the following words are given as follows:

‘Partition’ – to divide among several owners either in species or by sale and division of the proceeds,

‘Share’ – to divide and distribute in shares, apportion, allotment, allocation, ‘Share out among’ – to divide something between two or more people. He also referred to the Oxford Advanced Learner’s Dictionary, 6th Edition for the definition of the words, ‘apportionment’ (apportion) – to divide something among people, to give as a share of something to somebody for example, they apportioned the land among members of the family; ‘distribution’ – the way that something is shared or exists over a particular area or among a particular group of people, the act of giving or delivering something to a number of people; ‘Allotment’ – a small area of land in a town which a person can rent in order to grow vegetables on it, an amount of something that somebody is given or allowed to have, the process of giving something. In the opinion of the Appellant’s learned counsel, the idea of absolute ownership is not contemplated or conveyed from any of the above given definitions. He submitted that, ownership is the legal right of possession or proprietorship and an exclusive right or title to something. Therefore, since the word ‘ownership’ was not used in Exhibit ‘D’ which the trial Court relied upon, the purport of Exhibit ‘D’ cannot be an exclusive right or title conferred on Eworitsemogha Nikagbatse in respect of the portion ofland in dispute. On this position, he relied on the cases of:

(1) Nsirin v. Nwakerendu (1955) 15 WACA p. 71;

(2) Olorunfemi v. Asho (2000) FWLR (Pt. 20) p. 654 at p. 657 and

(3) Akpadiaha v. Owo (2001) FWLR (Pt. 57) p. 940 at p. 944.

Replying to the submissions of the learned counsel for the Appellants, the Respondent’s learned counsel submitted that the findings of the Area Customary Court in Exhibit ‘D’ on which the trial Court relied are findings of facts which this Court ought not to interfere with or disturb. Moreso, the findings were made in 1961 when the issues in dispute were still very fresh in the memories of the witnesses. On this position, reliance was placed by him on the cases of:

(1) Agbaisi v. Ebikorefe (1997) 4 NWLR (Pt. 502) p.630 at p. 653 paras. F – G and.

(2) Akpan v. Utin (1996) 7 NWLR (Pt. 463) p. 634 at p. 668 paras. B – C.

According to learned counsel, Exhibit D confers absolute ownership of the land in dispute on Eworitsemogha Nikagbatse who could therefore validly transfer ownership of the property to the Respondent as he did by virtue of Exhibit C, a deed of conveyance. On this legal position, reference was made to the cases of:

(1) Etim v. Butt (1997) 11 NWLR (Pt. 527) p. 69 at p. 81 paras. C – D and

(2) Ojelade v. Soroye (1998) 5 NWLR (pt. 549 ) p. 284 at p. 304 paras. E – F.

In his view, the lower Court was right to hold that the Appellant’s father’s property, a family property had been shared according to the native law and custom of the Itsekiri people, the property not being an undivided but a divided family property. As contained in Exhibit ‘D’, the Appellant had previously led evidence that after the death of the Appellant’s father, the property of the Appellant’s father was managed under the native law and custom of the Itsekiris for the benefit of all the children and relatives of the Appellant’s father, including the late Eworitsemogha Nikagbatse, the Appellant’s father’s elder brother. When the property was eventually shared, the particular property in dispute was given to Eworitsemogha, the Appellant’s uncle and Eworitsemogha later sold the property together with the piece of land on which it stood to the Respondent. Hence, the right finding of the lower Court that the Appellant’s father’s property was no longer an undivided but a divided property. Therefore contrary to the claim of the Appellant, no evidence was led in Exhibit ‘D’ to the effect that Eworitsemogha was only permitted by the Appellant’s father to collect rents from the tenants occupying the said property.

I have considered the submissions of the learned counsel for the parties under this head; I have also scrutinized the record of appeal. One of my observations is that, there are findings of facts as contained in Exhibits ‘D’ and ‘E’ that part of the portion of the land in dispute was originally sold to the Respondent by the Appellant’s uncle, Eworitsemogha, consequently, that portion of land with the building thereon legally belongs to the Respondent. The other portion of the property in dispute is the subject matter of the suit culminating in Exhibit ‘D’ and the appeal thereon, that is, Exhibit ‘E’. By Exhibit ‘E’, this other portion was adjudged to also belong to the Respondent when the sum of Eighty-five pounds was awarded against him to be paid in lieu of the trespass committed by him thereon. I refer in this, regard to Exhibits ‘A’, ‘A1’ – ‘A8’, ‘C’ and ‘F’. Exhibits ‘A’ and ‘A1’ – A8 are the certified copies of various building permits granted to the Respondent. Exhibit ‘C’ is the deed of conveyance dated 17th August, 1953, executed between the Respondent and Eworitsemogha, the Appellant’s uncle. Exhibit ‘D’ is the proceedings and Judgment of the Grade B District Customary Court delivered on 7th July, 1961. Exhibit ‘E’ is the judgment of the Warri High Court delivered on 25th October, 1965, that is the judgment in the appeal filed by the Respondent against the said judgment of the Customary Court which had also previously been appealed to the Warri Magistrate Court See pages 99 to 116 and 116 to 120 of the record of appeal for Exhibits ‘C’, ‘D’ and ‘E’. The decisions in Exhibits ‘D’ and E are centered on the findings of fact that, although the Appellant’s grand-father before his death had given his entire landed properties as gifts ‘inter vivos’ to the Appellant’s father, after the demise of the Appellant’s father, the property in dispute was given to Eworitsemogha when the properties of the Appellant’s father were shared among his children and relatives under the native law and custom of the Itsekiri people.

It is my firm view that, the judgment in Exhibit ‘E’ is a subsisting final judgment of a competent court on the property in dispute, the subject-matter of this appeal. This is because, the judgment has not been appealed. As far as the issue of title to the property is concerned, the judgment in Exhibit ‘E’ is final because, there is no ambiguity or uncertainty as to the exact extent of the rights in the possession of and title over the property. In the case of: Udo v. Obot (1989) 1 S.C. (Pt. 1) p. 64 at p. 74, Oputa, JSC (Rtd), held that, finality can be attributed to a decision in which an issue raised between parties has been adjudicated upon and decided one way or another. In, the instant matter; I am of the view and I hold that Exhibit E is such a final decision. With due respect to the learned counsel for the Appellant, I find not only very strange but also comical his submissions that the findings in Exhibits ‘D’ and ‘E’ are illegal and should not have been. Equally unnecessary is his voyage of definition discovery of the words: partition, sharing, apportionment, distribution and allotment. This appeal is not the proper forum for him to attack the said judgments. The decisions therein not being the subject-matter of this appeal. As stated earlier on above, Exhibit ‘E’ is a subsisting and valid judgment not having been upturned on appeal. It is of no moment whether or not the decision is good and sound. Therefore, I hold that the learned lower Court was right to rely on Exhibit ‘E’ among others in arriving at its decision which is the subject-matter of this appeal. For, it is a settled principle of law that every party to a suit, and indeed every citizen of this country has an obligation to obey the subsisting court’s decision or order in a suit unless and until the decision or order is set aside. The party’s or citizen’s obligation to obey the decision or order is without regard to his perception about the irregularity or illegality of the decision or order as long as it subsists. See the cases of:

(1) Alhaji Andu Shugaba v. Union Bank of Nig. Plc. (1999) 7 S.C. (Pt. 111) p. 67;

(2) Akinyemi v. Soyanwo (2006) 7 S.C. (Pt. 1) p. 39 and

(3) Kodilinye v. Odu (supra) at p. 338.

The fine details of this principle of law will be dealt with and more elaborately spelt out later on in this judgment under the appropriate issue. However, for the purposes of issues numbers one and two under discuss, I am of the firm view and I hold that the property in dispute belonged to the Appellant’s uncle, Eworitsemogha. The property devolved on him when the entire family property of the Appellant’s deceased father was shared under the native law and custom of the Itsekiris and the said property was given to him. The learned lower Court properly held in this regard. I refer to the findings of the lower Court in this regard which are contained in page 88, lines 21 to 36, page 89, lines 1 to 35 and page 90 lines 1 to 5. For the purpose of good understanding, grasp, clarity and easy reference, I hereunder reproduce verbatim the said finding of the lower Court as follow:

The above finding however, is not the end of this case. What is crucial is who owned the land in dispute when sold to the defendant. When in 1961, the plaintiff’s sister instituted action against defendant and Eworitsemogha per exhibit ‘D’ the land in dispute was conceded to Eworitsemogha as his own which he is free to deal with in any manner he liked. According to the finding in that proceeding already highlighted, the mud house that originally stood there, belonged to Nikagbatse and upon his death, passed to Joel. It later passed on to Eworitsemogha along with four shared to him from the estate of Joel in accordance with Itsekiri native law and custom. This house is clearly different from the house Nikagbatse lived, died and was buried and where Eworitsemogha later lived. Going by the judgment in Exhibit ‘D’, Nikagbatse was never buried in the mud house sold to the defendant cause of action in this suit. His maternal parent was said or supposed to have been buried there. It follows that the case put forward by the plaintiff is at variance and inconsistent with their case in Exhibit ‘D’. The case in Exhibit ‘D’ postulates that the mud house sold to the defendant was Eworitsemogha’s by inheritance from Joel By his pleadings and evidence in this court, plaintiff is saying the mud house in question, was Nikagbatse’s house where he lived and died. Mr. Scott-Emuakpor has argued that this variance in reference to the mud house is of no consequence in as much as the identity of the land in dispute is not in doubt. His argument seems to overlook the fact that different legal consequences will flow from a mere allocation of family land to a family member to live and occupy as was the case with the house given to Eworitsemogha by Joel to live in, and a house inherited upon distribution from the estate of deceased family member, such as was the case with the mud house forming part of the estates of Joel, but shared to Eworitsemogha. The legal consequences of the former are that no matter how long Eworitsemogha lived therein, he could never become the owner of it, whereas, in the latter, he becomes absolute owner thereof. Secondly, the general family outcry and revolt which was said to have greeted the demolition of the mud house, because in the process, the remains of Nikagbatse were dug out, could not have been true since it is obvious that the old man was buried some where else in the very house where Eworitsemogha was living at the time he sold the land in dispute to the defendant.

What clearly emerges therefore is that, the findings of gift inter-vivos not withstanding, Eworitsemogha was the owner of the land in dispute which he sold to the defendant. He became owner not by virtue of inheritance from his own father Nikagbatse but by virtue of inheritance from his brothers’ estates upon distribution. One is therefore, not surprised that no action was taken against him or the defendant when he alienated the mud house and land to the defendant. Learned counsel Mr. Scott-Emuakpor, has maintained that I should not construe the words ‘share’ ‘distribution’ or ‘apportionment’ as amounting to ‘partition’. I am not prepared to accept this novel proposition that when a man dies and his family in due course of time, gathers and distributes or shares his estates to his children and other members of his family as was done in the case in hand upon the death of the plaintiff’s father, that the beneficiaries thereby, do not become owners of the property, landed or mere chattels, shared to them. When you share, you have divided and the principle of law stated in Jamiegbe Ifia & ors. v. Okele Cedias (1965) NMLR 145 only applies to undivided family property. In the final analysis therefore, this case turns on not so much, the issue of gift inter-vivos but on the critical question as on whom the title of the land lay in 1953 when it was sold to the defendant. In my clear view title was on Eworitsemogha in virtue of inheritance from estate of plaintiff’s father when the entire estate was distributed by Omosohwofa at the direction of Madam Erdmann. It is therefore not surprising that a member of Oki family who was a witness to the deed of conveyance Exhibit ‘C’ confirmed according to the evidence of the defendant which I accept, that title was in Eworitsemogha. (The underlined portion is for emphasis).

The law is trite and our law reports are replete with a plethora of judicial authorities that, an appellate court will only interfere with findings of facts and ascription of probative value to evidence, when there are special circumstances justifying such or where such findings are unsound. For, it is the primary duty of the trial court which saw and heard the witnesses to make findings of facts and ascribe probative value to evidence. And it is only where the trial court has failed to properly evaluate the evidence presented before it as a result of which it reached a decision which is perverse, thereby occasioning a miscarriage of justice to a party in an action that, the duty is shifted to the appellate court by way of rehearing, to evaluate, as if it were the trial court, the evidence that has been adduced. See the cases of:

(1) Lions Building v. Shadipe (1976) 12 S.C. p. 135;

(2) Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt. 5) p. 41 at p. 42;

(3) Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) p.386 and

(4) Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) p. 410.

An appellate court has the competence to deduce perversity of finding of a trial Court from the record of appeal. The decision of a court is said to be perverse when it fails to take into cognizance the acts or evidence led before the court. Put in different words, a decision is perverse where the court arrived at such decision by taking into account matters which it ought not to have taken into account or where the court shuts its eyes to the obvious, thereby persisting in error, different from what is reasonable or required. See the cases of:

(1) Atolagbe v. Shornn (1985) 1 NWLR (Pt. 2) p. 360;

(2) Egba v. Appah (2005) 10 NWLR (Pt. 934) p.464 and

(3) Lagga v. Sarhuna (2008) 16 NWLR (Pt. 1114) p. 427.

Having read the entirety of the proceedings of the lower Court as contained in the record of appeal, I find the views expressed therein as pointed out above to be proper and sound. I agree with them. I have no reason whatsoever to upturn same as they are not in anyway perverse. Consequently, I find that the learned trial Judge was right to have held that by reason of the findings contained in Exhibit ‘D’, absolute ownership of the property in dispute has been conferred on Eworitsemogha, the elder brother of the. Appellant’s father, Eworitsemogha could transfer and had validly transferred his right of ownership in the property to the Respondent by virtue of Exhibit ‘C’. The property is not an undivided family property of the Appellant’s father’s. It was part of the vast properties of the Appellant’s father’s which have been shared accordingly. Upon all that I have stated above, I hereby resolve issues one and two against the Appellant and in favour of the Respondent.

ISSUE THREE

Whether the learned trial Judge was right to have upheld the pleas of ‘res judicata’, laches and acquiescence and long possession put up by the Respondent.

The Appellant’s learned counsel submitted that the equitable pleas of ‘res judicata’ laches and acquiescence cannot avail the Respondent in the given circumstances of the instant matter. According to him, the Appellant led evidence at trial that he did not know what was happening to his father’s property until 1983 when he visited home for the first time in twenty three years. On becoming aware, he commenced the suit culminating in this appeal in 1988. The learned counsel reiterated the legal position that laches and acquiescence are equitable doctrines which cannot be applied to common law claims for recovery of possession and trespass. He rested this legal argument on the case of: Ige v. Fagbohun (2002) FWLR (Pt. 127) p. 1140 at p. 1147. Hence, in his opinion, the lower Court misconceived the law to hold that laches and acquiescence have barred the Appellant.

Furthermore, it was contended in favour of the Appellant that the 1961 Court proceedings in the Warri Divisional Grade B Customary Court, Exhibit ‘D’ are a nullity. He noted that in the year of commencement of the Warri Divisional Customary Court’s case, the Appellant was only 19 years old. Hence, being a minor, he could not institute the said action. Therefore, the proceedings of the purported suit are null and void. Consequently, the plea of ‘ judicata’ cannot be founded thereon. Equally, the appeal predicated on the action that is, the proceedings leading to the judgment of Justice Arthur Prest, Exhibit E are also a nullity. On this legal position, reliance was placed on the case of: Sofolahan v. Fowler (2002) FWLR (Pt. 108) p. 1521 at p. 1525.

It was conceded by the Appellant’s counsel that a judicial proceeding or decision remains valid until declared to be invalid on appeal by a competent court. Therefore until so declared the decision could be the basis of invoking the plea of res judicata. On this legal position reference was made among others to the Cases of:

(1) Madam Yakoh Chapman v. Messieurs CFAO and J.S. Aryess Hyde 9 WACA p. 181 at p. 182 and

(2) Macfoy v. UAC Ltd. (1961) 3 WLR 1405 at p.1409

Arguing further, the learned counsel for the Appellant stated that it is trite law that a trial Judge is under a duty to consider all the issues canvassed before him in arriving at him decision thereupon. On this legal principle, reliance was placed on the cases of:

(1) Brawal Shiping (Nig) Ltd v. Onwadike & Anor, (2000) FWLR (Pt. 23) p. 1254 at p. 1258 and

(2) Uba Plc. v. Tsokwa Motors Nig. Ltd (2000) FELR (Pt. 22) p. 1057 at p. 1063.

He contended that the lower Court failed in this regard, thereby arriving at wrong conclusions and decision which in turn led to a miscarriage of justice to the Appellant. He stated that it is trite law in this circumstance that, this Court owes a legal duty to disturb and upturn such a decision and he urged this Court to do so.

The Respondent’s learned counsel replying, restated the legal principle of ‘res judicata’ as, an equitable plea the effect of which is to stop a party from re-litigating an issue that has been settled by a court of competent jurisdiction. That before this defence can be upheld, the parties including their privies must be the same, the issue(s) must be the same and a final judgment must have been delivered in respect of the issue in dispute. On this principle, he relied on the cases of:

(1) Ikoku v. Ekeuku (1995) 7 NWLR (Pt. 410) p. 637 at p. 652 paras. B – H and

(2) Ude v. Ejechi (1995) 8 NWLR (Pt. 412) p. 152 at p. 166 para. Cj p.167 paras. A – H.

It was submitted in favour of the Respondent that, in the instant matter, the Appellant and his family having not appealed against the judgment, Exhibit ‘E’, the judgment is valid and subsisting and as such the issue cannot be re-litigated by the Appellant as rightly held by the lower Court. The learned counsel for the Respondent contended that the Respondent having being in peaceable possession of the property in dispute since 1955 until 1988 when the suit that led to this appeal was instituted, the Appellant is caught by the defences of laches, acquiescence, estoppel and long possession”. On this standpoint, reliance was placed on the case of: Atunrase v. Philips (1996) 1 NWLR (Pt. 427) p. 637 at pgs. 652 – 658 paras H-C.

Furthermore, it was contended that by virtue of Section 6(2) of the Limitation Law, Cap. 89, Laws of the defunct Bendel State, 1976 as applicable in Delta State, the Appellant’s right to sue for recovery of the land in dispute has been foreclosed. Section 6(2) of the said Law, stipulates that, no right of action in respect of land can accrue after the expiration of twelve years from when the cause of action accrued. On this position reference was made to the cases of:

(1) Ibrahim v. Osunde (2003) FWLR (Pt. 142) p. 65 at p. 84 paras. F – H and

(2) Odekilekun v. Hassan (1997) 12 NWLR (Pt. 531) p. 56 at pgs. 76 – 77 paras. F – A.

The Respondent’s learned counsel canvassed that in the present matter, the Appellant filed the suit which culminated in this appeal in 1988, a period of thirty five years after the cause of action accrued to him: The Appellant at the lower Court pleaded disability for his failure to file an action on time against the Respondent. Equally, by the provisions of Section 21(C) of the Limitation Law, if, on the date when any right of action accrues for which a period of limitation is prescribed by this law, the person to whom it accrues is under a disability, the action may be brought at any time before the expiration of six years from the date when the person ceased to be under the disability or died, whichever event first occurs, notwithstanding that the period of limitation has expired. However, there is a provision under the Section that, no action to recover land or money charged on land shall be brought by virtue of the Section by any person after the expiration of thirty years from the date on which the right of action accrued to that person or some person through whom he claims. Therefore by the combined reading and effect of the referred provisions, the Appellant was out of time in commencing his said action by twenty three and five years respectively. Consequently, the trial Court was right to uphold the plea of res judicata, laches, acquiescence and long possession raised before it by the Respondent. What is more, the point raised by the Appellant that Exhibits ‘D’ and ‘E’ are null was never canvassed at the lower Court. None of the grounds of appeal touches on this point understandably because it did not form part of the judgment of the lower Court. The Appellant having failed to comply with the law to first seek and obtain the leave of this Court to raise the said new point, this issue is incompetent and cannot be allowed to stand. The Respondent’s learned counsel contended that the submissions made by the Appellant in his brief of argument in this regard goes to no issue and he urged same to be discountenanced by this Court. On this legal position, reliance was placed on the cases of:

(1) UBA Plc v. BTL Industries Ltd. (2007) All FWLR (Pt. 352) p.1615 at p.1681 paras. A -D:

(2) Kasunmu v. Shitta-Bey (2007) All FWLR (Pt. 356) p. 741 at p. 775 paras. B – E;

(3) Ibrahim v. Balogun (1999) 7NWLR (Pt. 610) p. 254 at pgs. 274 – 275 paras. H – A and

(4) Hawad Int. School Ltd. v. Mima Projects Ventures Ltd. (2004)FWLR (Pt. 188) p. 963 at p.994 paras. G-H.

Straight away before going into the merit of issue three, I want to consider the appropriateness of the submission of the leaned counsel for the Appellant that both Exhibits ‘D’ and ‘E’ are null and void. The learned counsel for the Respondent submitted that this point was never raised before the lower Court. That this being a new point, the leave of this Court ought to have been sought and obtained before it can be competently canvassed by the Appellant in this appeal. I am at one with the learned counsel for the Respondent on this trite position of law. A party must be consistent in the presentation of his/her case both at the trial and appellate courts. For an appeal is a continuation of some sort of the case presented at trial. The appellate court’s jurisdiction is limited to the review of the case presented at trial. The exception to this general rule is, where the ultimate interest of justice will be attained, leave of the appellate court may be sought and obtained to enable a party raise and argue a fresh point for the first time on appeal. This is because, the appellate court principally deals only with the printed record.

It is a settled principle of law that an appellate court can only decide on issues raised in the grounds of appeal filed and grounds of appeal ultimately from the judgment of the trial Court. Consequently, issues for determination formulated in a brief must be based on the ground(s) of appeal filed by the parties. If they are not related to any ground of appeal, they would become irrelevant as they go to no issue. Any argument in the brief in support of such issues will be discountenanced by the court. See the cases of:

(1) Management Enterprises v. Otusanya (1987) 2 NWLR (Pt. 55) p.179;

(2) Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) p. 130 at p. 157;

(3) Momodu v. Momoh (1991) 1 NWLR (Pt. 169) p.608 at pgs. 620 – 621 and

(4) Okeke v. Oruk (1999) 4 S.C. p. 37.

In the instant case, none of the grounds of appeal filed is in challenge of the validity of Exhibits ‘D’ and ‘E’. This is understandably so because this point was not an issue before the lower Court, and it does not arise from the judgment of the lower Court. Consequently, all the arguments on this point under this issue number three and indeed issues one and two must be and are hereby discountenanced by me as irrelevant and going to no issue in this appeal.

I will now proceed to consider whether it was proper for the lower Court to uphold the plea of ‘res judicata’, and the defences of laches, acquiescence and long possession put up by the Respondent at trial.

It is very clear from the defence of the Respondent to the claims of the Appellant in this case that the judgments Exhibits D and E are the planks on which the Respondent premised his defence. In effect, he is saying that, he is entitled to the property in dispute by reason of the judgments, Exhibits D and E. Thus they relied on issue estoppel, that is, that the issue of his entitlement to the property having been decided in Suit No. GBC/1061 and civil appeal No. W/13A/64, the Appellant is estopped from averring to the contrary in Suit NO.W/81/88 which culminated in this appeal. Therefore, the germane posers at this juncture are: what then is issue estoppel? and does issue estoppel apply in this case to the benefit of the Respondent?

An estoppel has been defined as, an admission, or something which the law treats as equivalent to an admission of an extremely high and conclusive nature so high and so conclusive that, the party whom it affects is not permitted to aver against it or offer evidence to controvert it.

The rudiments of issue estoppel were stated line by line and precept by precept by Ogundare, J.S.C. (of blessed memory), in the case of: Ebba v. Ogodo (2000) 10 NWLR (Pt. 675) p.387 at pgs 403 – 407. It is pertinent to and I hereby reproduce these ‘in extenso’ hereunder as follows:

…In Standard Bank of Nigeria Ltd. v. Chief Festus Ikomi (1972) 1 SC 164 at 177 -179 where the issue of estoppel was raised to preclude a defendant raising once again the validity of certain document that had been held in a previous action to be invalid, this court, per Madarikan JSC, observed:

We consider that Mr. Bentley’s contention is well founded. Indeed, if such a rule does not prevail, litigation would be interminable. Support for this view is to be found in the recent decision of this court in O. Ogwo & others v. Chief Kanu Ekpeazu & others. SC 231/1970 delivered on 29/10/71 in which we said:

The effect of what Mr. Ogwo claimed he could do was to ignore the decision of three courts including the then highest possible appellate court (the Privy Council) and to take a point that could (and indeed should as lack of jurisdiction ought to be pleaded though it may otherwise be raised at the hearing) have been taken. We do not think that in, such circumstances, notwithstanding the provisions of section 52 of the Evidence Act, that it was in any way an error of the learned trial judge to hold that this was an abuse of the process of the court… We therefore refused to allow Mr. Ogwo to argue on the merits that the learned trial judge was wrong to come to the conclusion that he did that the order transferring the suit to the Aba High Court was in fact validly made as we did not think he was entitled to raise the issue.

That decision is in accord with the following observations of Wegram V-C Henderson v. Henderson (1843) 3 hare 114 reported in 67 E.R. 313 at page 319.

I believe I state the rule of the court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of the matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.

This passage was quoted with approval by the Privy Council in Hystead and others v. Commissioner of Taxation (1926) A.C. 155 at page 170 and was therein described as settled law on the subject; and also by the High Court of Lagos in A.G. Ijale v. A.G. Leventis & Co. Ltd. (1961) 2 SCNLR 386, (1961) ANLR 762 at page 769. We must therefore come to the conclusion that, having unsuccessfully contested the validity of Exhibits ‘A’ and ‘B’ in suit No.W/50/60, it was not competent for the respondent to contend in any subsequent proceedings between the parties that the documents were void. It follows, in our view, that the learned trial judge was in error in entertaining the defence of the respondent that the documents were void and grounding his judgment upon it.

Issue of estoppel was again considered by this court in Fadiora v. Gbadebo (1978) 3 SC 219, 288 – 9 where this court, per Idigbe JSC, explained:

Now, there are two kinds of estoppel by record inter partes or per rem judicatam, as it is generally known. The first is usually referred to as ’cause of action estoppel’ and it occurs where the cause of action is merged in the judgment, that is, Transit in rem judicatam (see King v. Hoare (1844) 13 M & W 495 at 5041. Therefore, on this principle of law (or rule of evidence) once it appears that the same cause of action was held to lie (or not to lie) in a final judgment between the same parties, or their privies, who are litigating in the same capacity (and on the same subject matter), there is an end of the matter. They are precluded from litigating the same cause of action. There is, however, a second kind of estoppel inter partes and this usually occurs where an issue has earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in these circumstances, ‘issue estoppel’ arises. This is based on the principle of law that a party is not allowed to (i.e he is precluded from) contending the contrary or opposite of any specific point which having been once distinctly put in issue, has with certainty and solemnity been determined against him. (See Qutram v. Morewood (1803) 3 East 3461. Issue estoppel applied whether the point involved in the earlier decision is one of fact or law or one of mixed fact and law. However, for the principle to apply, in any given proceedings, all the pre-conditions to a valid plea of estoppel inter partes or per rem judicatam must apply, that, (1) the same question must be of decision in both proceedings (which means that the question for decision in the current suit must have been decided in the earlier proceeding), (2) the decision relied upon to support the plea of issue estoppel must be final (3) the parties must be the same (which means that parties involved in both proceedings must be the same) (per se or by their privies).

See also: S.D. Ojo v. Jean Abadie, 15 WACA 54, at 55 where it was held:

It is hardly necessary to add that when once it is made clear that the self-same question is substantially in issue in two suits, the precise form in which either suit is brought or the fact that the plaintiff in the one case was the defendant in the other is immaterial, the estoppel subsists between the parties.

and Onyeama Ezenwa v. Mazeli & Ors,15 WACA 67.

The issue was again revisited by this court in Ezenwani v. Onwordi (1986) 4 NWLR (Pt. 33) 27. This court approved the above passage of Idigbe JSC and Kazeem JSC at p. 43 said:

…I entirely agree with both the learned trial Judge and the Court of Appeal that the issue of traditional history having been previously decided in the 1962 cases between both parties in this appeal, and on the same land in dispute, against the appellants, it has become an ‘issue estoppel’.

Hence the appellants were estopped from relitigating the issue in this case.

See also the dicta of Obaseki, Aniagohi and Oputa JJSC in the case.

Another case I need refer to is Aro v. Fabolude (1983) 2 Sc. 75; (1983) 1 SCNLR 58 at 67 – 68. In a previous action in the Customary Court between the same parties over the same land, that court had held that the previous owner died without a SOD. In a subsequent action between the parties plaintiff sought to prove that the previous owner died leaving behind a son. It was held by this court that he was precluded from so proving as he was caught by the rule of issue estoppel. Aniagolu JSC observed at pp. 98 – 99:

The basis for the plaintiff’s claim was therefore thrown overboard in that judgment of 1972. The said basis was that he was the son of Aro Orija and that Aro Orija was the owner of the land in dispute I and that the land descended to him as direct son of the said Aro Orija. Since the court held that Aro Orija never had a son, having died without an issue, the substratum of the plaintiff’s claim had gone and any claim made by him on the basis that he was the son of Aro Orija must necessarily fail. That issue having been settled in 1972 in a decision of a court of competent jurisdiction, the plaintiff could not be allowed to re-open the issue.

And at pp. 100 -101 he said:

As part of the principle that society must discourage prolongation of litigation, the doctrine has been developed that a party to civil proceedings is not allowed to make an assertion against the other party, whether of facts or legal consequences of facts, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential element in his previous cause of action or defence, in a previous suit between the same parties or their predecessors in title, and was determined by a court of competent jurisdiction, unless further material be found which was not available, and could not, by reasonable diligence, have been made available, in the previous proceedings. (See: Mills v. Cooper (supra) at page 104.

The learned Justice of the Supreme Court cited with approval two passages in Fidelitas Shipping Co. Ltd. v. V/O Exportchleb (1966) 1 QB 630, 640 where Lord Denning M.R. explained:

That issue having been decided by the court, can it be reopened before the umpire? I think not. It is a case of ‘issue estoppel’ as distinct from ’cause of action estoppel’ and fact estoppel, a distinction which was well explained by Diplock L.J. In Thoday v. Thoday. The law, as I understand it, is this: if one party brings an action against another for a particular cause and judgment is given upon it, there is a strict rule of law that he cannot bring another action against the same party for the same cause. Transit in rem judicatam: See King v. Hoare. But within one cause of action, there may be several issues raised which are necessary for the determination of the whole case. The rule then is that, once an issue has been raised and distinctly determined between the parties, then, as a general rule, neither party can be allowed to fight that issue all over again. The same issue cannot be raised by either of them again in the same or subsequent proceedings except in special circumstances see Badar Bee v. Habib Merican Noordin, per Lord Macnaghten. And within one issue, there may be several points available which go to aid one party or the other in his efforts to secure a determination of the issue in his favour. The rule then is that each party must use reasonable diligence to bring forward every point which he thinks would help him. If he omits to raise any particular point, from negligence, inadvertence, or even accident (which would or might have decided the issue in his favour), he may find himself shut out from raising that point again, at any rate in any case where the self-same issue arises in the same or subsequent proceedings. But this again is not an inflexible rule. It can be departed from in special circumstances”.

And at p. 642 where Diplock LJ said:

“In the case of litigation, the fact that a suit may involve a number of different issues is recognized by the Rules of the Supreme Court which contain provision enabling one or more questions (whether of fact or law) in an action to be tried before others. Where the issue separately determined is not decisive of the suit, the judgment upon that issue is an interlocutory judgment and the suit continues. Yet I take it to be too clear to need citation of authority that the parties to the suit are bound by the determination of the issue. They cannot subsequently in the same suit advance argument or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is by way of appeal from the interlocutory judgment and, where appropriate, an application to the appellate court to adduce further evidence: but such application will only be granted if the appellate court is satisfied that the fresh evidence sought to be adduced could not have been available at the original hearing of the issue even if the party seeking to adduce it had exercised due diligence”.

Diplock LJ had earlier in Thoday v. Thoday (1964) P. 181 at 197-198 explained the law on estoppel thus:

‘The particular type of estoppel relied upon by the husband is estoppel per rem judicatam. This is a generic term which in modern law includes two species. The first species, which I will call cause of action estoppel, is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the none-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same I parties. If the cause of action was determined to exist, i.e., judgment was given upon it, it is said to merge in the judgment, or, for ‘those who prefer Latin, ‘transit in rem judicatam’. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does, he is estopped per rem judicatam, this is simply an application of the rule of public policy expressed in the Latin maxim ‘Nemo debet bis vexari’ ‘pro una et eadem causa’. In this application of the maxim ‘causa’ bears its literal Latin meaning. The second species, which I will call ‘issue estoppel’ is on extension of the same rule of public policy. There are many causes of action which can only be established by proving that two or more different conditions are fulfilled. Such causes of action involve as many separate issues between the parties as there are conditions to be fulfilled by the plaintiff in order to establish his cause of action; and there may be cases where the fulfilment of an identical condition is a, requirement common to two or more different causes of action. If in litigation upon one such cause of action any of such separate issues as to, whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was.

It is clear from all the authorities I have cited above and many more that for issue estoppel to apply the following ingredients must be present –

1. the parties must be the same in the previous and present actions;
2. the same question that was decided in the previous action must arise in the present action in respect of the same subject matter and
3. that question must be a final decision of a competent court. (The underlined are for emphasis).

I also refer to the case of: Afolabi v. Gov. Osun State (2003) 109 LRN p. 1287 at p. 1292 paras. K – EE, where Kutigi, JSC, restated the settled principle of law that, to sustain a plea of res judicata, the party pleading it must satisfy the following conditionalities, that is:

(1) the parties (or their privies as the case may be) are the same in the present case as in the previous case;

(2) the issue and subject-matter are the same in the previous suit as in the present suit;

(3) the adjudication in the previous case must have been given by a Court of competent jurisdiction and

(4) the previous decision must have finally decided the issues between the parties.

Failure to satisfy any of these conditions means failure of the plea in its entirety. Turning to and focusing on the present case, it will appear that conditionalities (2) and (3) are not in contention. The subject-matter in the judgments, Exhibits ‘D’ and ‘E’ is the same as that in the suit instituted by the Appellant before the lower Court. The courts which gave the judgments, Exhibits ‘D’ and ‘E’ are courts of competent jurisdiction. The learned trial Judge held and I hereunder reproduce verbatim his findings as follows:

‘…What is crucial is who owned the land in dispute when sold to the defendant. When in 1961, the plaintiff’s sister instituted action against defendant and Eworitsemogha per exhibit ‘D’ the land in dispute was conceded to Eworitsemogha as his own which he was free to deal with in any manner he liked. According to the finding in that proceeding already highlighted, the mud house that originally stood there, belonged to Nikagbatse and upon his death, passed to Joel. It later passed on to Eworitsemogha along with four shared to him from the estates of Joel in accordance with Itsekiri native law and custom. That house is clearly different from the house where Nikagbatse, lived, died and was buried, and where Eworitsemogha later lived. Going by the judgment in Exhibit ‘D’, Nikagbatse was never buried in the said mud house sold to the defendant cause of this suit. His maternal parent was said or supposed to have been buried there…

See lines 21 to 34 at page 88 of the record of appeal. As I stated above, Exhibit ‘E’ is the judgment in respect of the appeal against Exhibit ‘D’. A final judgment has been defined as one which puts an end to the action by declaring that the plaintiff has or has not entitled himself to the remedy he sued for so that nothing remains to be done but to execute the judgment. See the cases of:

(4) U.B.N. Ltd. v. Penny Mart Ltd (992) 5 NWLR (Pt. 240) D. 242 and

(5) Edem v.Akampka L.G. (2000) 4 NWLR (Pt. 651) p. 70.

Hence, to all intents and purposes, it is very patent that Exhibit ‘E’ is a final judgment from the tone of the submissions of the Appellant’s learned counsel, it will appear that the Appellant is contesting conditionality (1). This is because he was saying that he was not a party to the suit, the subject matter of Exhibits ‘D’ and ‘E’. He said he was a minor at the time the said suit was instituted and that he only became aware of the situation of things thereafter; hence, he could not file the suit, the subject-matter of the present appeal, at the lower court much earlier than the time he actually did. He is in essence relying on the provisions of the Limitation Law of Bendel State now applicable in Delta State, to say that his said suit was not statute barred. In my firm view, this excuse or defence is of no moment and needs no consideration in view of the findings in the said Exhibits ‘D’ and ‘E’. I refer to and hereunder reproduce verbatim the relevant findings in this regard contained in lines 1 to 36 at page 90 and lines 1 to 3 at page 91 of the record of appeal, as follows:

… The main building completed in 1955 by the defendant certainly does not form part of the land in dispute in the previous case. In 1961 or thereabout, he extended the main building by addition of more rooms which encroached on plaintif’s land. Action in trespass and injunction instituted against him in the Customary Court and on appeal to the Magistrate Court was successful. But on appeal to the High Court the order of Injunction was overturned. The payment of 85pounds damages in lieu of injunction had the obvious effect of conferring legal ownership of the area encroached upon by the extension, on the defendant. The action was fought and prosecuted by Lucky in a representative capacity and the outcome is binding on the plaintiff who is also fighting the present action in the same representative capacity. When therefore, they collected the 85ponds damages in lieu of injunction, they are forever precluded from relitigating ownership of the land comprised in the extension of the building, with the defendant. In so far as the land in dispute in this action includes that particular area of the extended building the plea of res judicata, must succeed. The judgment of Authur Prest J, against which the plaintiff’s family never appealed, bars them for all times from relitigating that issue so as to claim back that parcel of land in respect of which they have been paid. It cannot lie in their mouth to seek declaration of title over that particular portion which now forms part and parcel of defendant’s entire building. It is certainly no answer to say that the plaintiff, was not aware of the previous suit because he was away in Lagos and knew nothing about what was going on at home. The fact remains that the suit n exhibit ‘D’ was fought by his late sister in a representative capacity on behalf of the entire family which includes the plaintiff.

(The underlined portions are for emphasis).

‘After rightly finding as reproduced above by the learned trial Judge, he went ahead to consider in details the defences of laches, acquiescence and long possession put up by the Respondent. I guess this was merely done in fulfillment of the righteousness of the case, as this was actually unnecessary having made the finding that the action in the previous suit at the Warri Divisional Grade B Customary Court which culminated in the appeal Exhibit ‘E’ was instituted in a representative capacity by the sister of the Appellant and that it was also in the same representative capacity that the Appellant brought the suit at the lower Court, ‘finito’. His Lordship did not need to have gone beyond that point.

It is trite law that where an action is brought by a person in a representative capacity against another person personally and prosecuted to judgment, and later a further action on the same subject-matter is brought against that other person also in a personal capacity, the judgment is the same. A representative is a person authorized formally or informally to act or speak for another or others. In the instant case, the capacities in which the parties in the earlier Customary Court case sued and defended the suit are the same as in the lower Court. See page 101, lines 5 to 12 and page 68, lines 25 to 28 of the record of appeal respectively. My resolve along this line is strengthened by the following judicial authorities among many others viz:

(1) Shitta Bay v. The Chairman LEDB (1962) 2 SCNLR p. 107;

(2) Ezeanya v. Okeke (1995) 4 NWLR (Pt. 388) p. 142;

(3) Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) p. 141 and

(4) Okukuje v. Akwido (2001) 3NWLR (Pt. 700) p. 261.

From the above elucidation, I have no difficulty in coming to the conclusion that the learned trial Judge was right in his finding that, the parties or their privies are the same in the present case as in the previous case and that, the subject-matter for adjudication are the same in both cases. Therefore, the parties in the instant case are estopped ‘per rem judicatam’ from bringing a fresh action before any court on this same cause of action which had already been pronounced upon previously by the Court in Exhibit ‘E’; the judgment in Exhibit ‘E’ not having been disturbed on appeal.

It is on this note that I consider it otiose to still go ahead to advert to and consider the pleas of laches, acquiescence and long possession put up under this issue. To do this will be unwholesome because it will be moot and amount to an academic exercise which will not in any way impart on this appeal. For courts in performing their adjudicatory function are precluded from engaging in academic discussions. See the cases of:

(1) Olaniyi v. Aroyehun (1991) 5 NWLR (Pt. 194) p. 652;

(2) Nwaeseh v. Nwaeseh (2000) 3 NWLR (Pt. 649) p. 391 and

(3) Walter v. Skyll Nig. Ltd. (2001) 3 NWLR (Pt. 701) p. 438.

Consequent upon my foregoing deductions, this issue number three suffers the fate of failure. It is resolved against the Appellant and in favour of the Respondent.

ISSUE FOUR

Whether the learned trial Judge was right to have held that the claim for trespass was inconsistent with the claim for possession?

The learned counsel for the Appellant contended that the lower Court’s decision that the Appellant’s claim having been founded on trespass was inconsistent with the claim for possession was wrong. It was his view that, the Appellant is in constructive or incorporeal possession of the property in dispute, therefore, his right is superior to that of the Respondent who is in physical or actual bodily occupation. He argued that the lower Court failed to consider all the points canvassed before it and make appropriate findings thereon. This according to him amounts to the shirking of the lower Court’s judicial responsibility. Hence, the decision of the lower Court is bound to be upturned in this appeal. On this standpoint, he relied on the case of: Nwagbogu v. Abadom (1994) 7 NWLR (Pt. 356) p. 357. It was further argued for the Appellant by his learned counsel that, a claim for the recovery of possession in an action in which a claim for trespass is sought is innocuous. That although this may amount to surplusage, in law surplusage is not offensive but insufficiency is. He opined that the difference in concept between a claim for recovery of possession and a claim for trespass is merely semantical or dialectical.

Responding under issue four, the learned counsel for the Respondent reiterated the legal position that, a claim for trespass presupposes that the claimant is in possession of the land in dispute; such possession may either be actual that is, physical or constructive which is, possession contemplated by law. In this wise, he relied on the case of: Ezekwesili v. Agbapuonwu (2003) FWLR (Pt. 162) p. 2016 at p. 2037. The learned counsel for the Respondent submitted that the Appellant having failed to prove his main claim for declaration of his title to the property in dispute, this ancillary claim for trespass must also fail. He was of the view that the learned lower Court was right to hold that the Appellant’s claim for trespass is inconsistent with his claim for possession.

I must say with all due respect to the learned counsel for the Appellant, that his submissions under the present issue are not only unknown to law but novel. No wonder he was incapable of supporting them with any judicial authority. The correct position of the law is nearly as postulated by the learned counsel for the Respondent. It is a settled principle of the law that, trespass to land and declaration of title to land are two distinct and separate claims. In all cases where a plaintiff is seeking for declaration for title to land, the burden lies on such a plaintiff to prove his case on evidence adduced by him and he will fail if he fails to discharge that burden. If he succeeds by proof of credible evidence, he is entitled to the declaration to title sought by him. See the cases of:

(1) Kodilinye v. Odu (supra);

(2) Gankom v. Ugochukwu Chemical Inc. Ltd, (1993) 6 NWLR (Pt. 297) p. 55 and

(3) Echi v. Nnamani (2000) 8 NWLR (Pt. 667) p. 1.

Whereas, trespass to land is an entry upon land with intent to do damage, It is a violation of possessory right and may not involve title to land. For, a party in possession of land has ‘good title’ against the whole world except the true owner of the land. Therefore, a party may fail in his claim for title, but that failure does not necessarily mean that his claim in trespass must fail. See the cases of:

(1) Aromire v. Awoyemi (1972) 2 SC p. 1;

(2) Akano v. Okunade (1978) 3 SCp. 129 and

(3) Ngene v. Igbo (2000) 4 NWLR (Pt 651) p. 131.

However, once a defendant claims to be the owner of a land in dispute, title is put in issue, and in order to succeed, the plaintiff must show a better title. In the instant case, as can be gleaned from Exhibits D and E, title was made an issue. The Respondent appropriately showed that he was not only in possession of the property in dispute, he proved that his title therein is better than that claimed by the proxy or privy of the Appellant, Lucky, the Appellant’s sister. The law is of course settled that, to succeed in an action for trespass, the party suing for trespass must prove that he is in exclusive possession of the land. See the cases of:

(1) Ogunbiyi v. Adewumi (1988) 19 NSCC p. 268 at p. 272 and

(2) Uchendu v. Ogboni (1999) 4 SC (Pt. 11) p. 1.

The competing interests of the parties herein having been settled ‘vide’ Exhibits ‘D’ and ‘E’ like I pointed out earlier on above, that judgment of court that is, Exhibit ‘E’ not having been appealed remains subsisting. It is a judicial decision which has settled both the issues of title and of possession in the property in dispute. That decision is effective and in my firm view it has long been executed. The present Appellant is a beneficiary of that judgment he cannot relitigate on the property in dispute, two decades and over or at any time after the said decision. The decision is a final decision. The Appellant, indeed the other members of the Nikagbatse-Oki family of Odeile Okere are all estopped from relitigating on the said property. To put it in other words, Exhibits ‘D’ and ‘E’ operate as a bar to the claim brought by the Appellant at the lower Court and any further action that may be contemplated regarding the property, subject-matter of this case. The lower Court properly held in this regard.

I have also reiterated above the position of the law in fulfilment of the righteousness of this issue. This is because having founded that, the principle of estoppel ‘per res judicata’ avails the Respondent, it is needless to consider the issues of proof of title over and possession in the property in dispute. Therefore, issue number four in the eye of the law becomes a lifeless one. For, by reason of the findings of the lower Court that the property in issue is vested in the Respondent, the issue of trespass by him or through him has ceased to be a live Issue before that Court.

As a result of all that I have stated above, issue four is unsuccessful, it is resolved against the Appellant and in favour of the Respondent.

In conclusion, all the issues formulated for determination from the seven grounds of appeal having failed, I hereby refuse this appeal. It is unmeritorious and dismissed accordingly. I uphold the judgment of the lower Court which dismissed all the claims of the Appellant.

The Respondent is entitled to the costs of this appeal which I assess at the sum of Twenty Thousand Naira.

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Other Citations: (2010)LCN/3526(CA)