Emeka Osondu & Anor V. Ajama Nduka & Ors (1978)
LawGlobal-Hub Lead Judgment Report
SOWEMIMO, J.S.C.
The plaintiffs, who are appellants, in this appeal sued the defendants, the respondents, in Suit O/115/61, at the Anambra State High Court, sitting at Onitsha and claimed:-
“A declaration of title to all that piece or parcel of land known and called Odo Ubiri (or Okpobiri) situate at Nando.”
In the pleadings, there is no dispute that one Ikenga had three children – Agbudu, Umuawo, and Abube and on the death of Ikenga the three children shared amongst themselves the landed property left by their father. The parties do not agree as to the respective boundaries of the portion of land, the subject-matter of this suit. There was also some dispute in respect of acts of possession.
It might be apt at this stage to trace the history of this claim. In a previous Suit No. O/32/57 the appellants in this appeal, as plaintiffs, sued the present respondents, as defendants, and the claims were:-
“(a) a declaration that the plaintiff is the owner of the land known and called Odo Ubiri (or Okpobiri) situate at Nando and bounded as in the plan to be hereinafter filed.
(b) 100 Pounds damages for the destruction by the defendants, their agents and/or servants of the boundary pillars on plaintiff’s land.
(c) an injunction restraining the defendants from further committing such acts as are complained in paragraph (b) above.”
At the completion of the hearing at the High Court at Onitsha Reynolds J., gave judgment in favour of the plaintiffs against the defendants. The judgment went on appeal to the Federal Supreme Court and in its judgment in Suit FSC/295/1960 delivered on 30th June 1961, it set aside the judgment of Reynolds J., and made an order of non-suit in respect of the first item of claim where plaintiffs sought declaration of title. Delivering the judgment of the court Taylor, FJ., stated inter alia:-
“In my judgment, the trial Judge erred in granting a declaration of title to the people of Umuawo in respect of an undefined area of land. To that extent the judgment must be set aside….The result is that the appeal against the Umuawo people is allowed and the order I would make is as follows:-
The judgment of the trial Judge is set aside and I would substitute in its place an order of non-suit in respect of the claim for a declaration of title. I would order a non-suit on the claim for a declaration of title in view of the trial Judge’s finding that the larger area edged violet though not claimed in the action, was owned by Umuawo, and the area to which they failed to get a title for failure to prove their western boundary is within it.”
No appeal was lodged against the judgment of the Federal Supreme Court in that case as indicated in this paragraph of the judgment of the Privy Council delivered on 21st July 1964 by Lord Donovan:-
“Though the record in this case indicates that there are three appeals, there are in fact only two and those two are consolidated. The third apparent appeal between Ajama Aduaka & Ors., and Vincent Ekwealor, is not effective. The Plaintiff in that case was successful in the High Court in Eastern Nigeria but unsuccessful in the Federal Supreme Court, and does not appeal to the Board.”
For the purpose of this appeal, as was done in the 1957 suit, the plaintiffs/appellants will be referred to as Umuawo (Umuawu) people and the defendants/respondents as the Abube. Consequent on the order of non-suit, the Umuawo filed a fresh suit at the High Court Onitsha and is O/115/61 on 13th September, 1961, claiming declaration of title to the piece of land known as Odo Ubiri (or Okpobiri) situate at Nando “and bounded as in the plan to be hereinafter filed.” The defendants are the Abube. The case was heard by Kaine, J., and judgment, which is the subject of the present appeal, was delivered on 9th December, 1963 dismissing the claim of Umuawo against the Abube. Against this judgment an appeal was lodged and learned counsel for the Umuawo, Mr. Onyiuke, argued the following five grounds of appeal. These are as follows:-
“ADDITIONAL GROUNDS OF APPEAL
- Having regard to the common issues raised and determined in Exhibits E & F, that is to say, in the consolidated suits, O/19/57 (the people of Abube-Nando versus the people of Agbudu-Nando) and O/32/57 (the people of Umuawo-Nando versus the people of Abube-Nando); common issues to wit, the determination of the extent of the lands and boundaries thereof of each of the three branches of the same Ikenga family in respect of their ancestral lands and having regard to the findings of the High Court and the Supreme Court in the said consolidated suits, findings, to wit:-
(i) “That the land of Ikenga was divided between Agbudu, Umuawo and Abube and they took in that order.”
(ii) That the Plan Exhibit A which corresponds with Exhibit B in the present proceedings accurately represents the area owned by each of the three parties suits.” The learned trial Judge erred in law and on the facts in not granting the declaration of title to the land, the subject matter of the present appeal, which is indisputably within the area owned by the appellants. (Words in brackets above supplied).
- Having regard to the Order of the Supreme Court in Exhibit F, Order, to wit: “The judgment of the trial Judge is set aside and I would substitute in its place an order of dismissal of the claims for trespass and injunction and an order of non-suit in respect to the claim for a declaration of title in view of the trial Judge’s finding that the larger area edged violet, though not claimed in the action was owned by Umuawo and the area to which they failed to get a declaration for failure to prove the western boundary is within it.”
The learned trial Judge should have awarded title to the area actually and properly demarcated on Exhibit ‘A’ being the land claimed by the appellants in the present proceedings.
- The appellants having alleged that the land in dispute was granted to the respondents and the respondents having denied the fact but instead set up title to and ownership of the said land in their own right the learned trial Judge misdirected himself on the facts and in law in
(a) treating the question of the alleged grant as in issue
(b) casting on the appellants the burden of disproving that the grant was an absolute grant.
(c) refusing to grant the appellant the declaration they sought on the ground that they did not establish the nature of the grant.
- There being no presumption under native law and custom in favour of absolute grant of land the learned trial Judge erred in law and on the facts by holding in effect, that if the story of the appellants as to the grant of the land in dispute to the respondents were accepted it exhausted the totality of the appellants’ interest in the land in dispute.
- The judgment is against the weight of evidence.”
We may as well deal at this stage with the observation made by learned counsel for the appellants in respect of a portion of the judgment in FSC/295/60, which reads:-
“I would order a non-suit on the claim for a declaration of title in view of the trial Judge’s finding that the larger area edged violet, though not claimed in the action, was owned by Umuawu; and the area to which they failed to get a declaration for failure to prove their western boundary is within it.”
In paragraph 3 of the Statement of Claim in Suit O/32/57, the proceedings of which was tendered as Exhibit E, the Umuawo people averred:- “The plaintiff’s family, from time immemorial, the owners in possession of the entire piece of land called land of Umuawo on the plan, and as owners therefore have exercised maximum acts of ownership and possession in and over the same by letting portions of it out to tenants (including the defendants) and by farming and building thereof. The area and extent of the said “land is more particularly delineated in the plan annexed hereto and therein verged purple.” In reply to the above paragraph the Abube people averred as follows:-
“3. The defendants in answer to paragraph 3 of the Statement of Claim say that the land in dispute is not known as “land of Umuawo.” The land in dispute is known as “Ana-Oba” land and is the property of the defendants who from time immemorial have been exercising maximum acts of ownership and possession over same to tenants on payment of annual tributes. The said “Ana-Oba” land is shown in the defendants plan filed in this suit.
- The defendants further deny every material Statement of Claim and will put the plaintiff to its strictest proof.”
On the pleadings the issue joined as to the extent of Umuawo land was in respect of an area of land edged purple “in a plan annexed hereto” which does not appear to have been received in evidence. The Umuawo never claimed the area verged violet in Exhibit A in Suit O/32/57 and the Federal Supreme Court was right in the portion of the judgment referred to above and it was therefore not an issue before Reynolds, J., and his finding that the area verged violet was owned by the Umuawo went to no issue. We feel quite satisfied that the criticism of learned counsel for the appellant of that portion of the judgment was not justified. It might be appropriate to say that throughout the hearing of the appeal before us our attention was not drawn to any plan either in O/32/57 or in the present case on appeal, showing the area verged purple claimed as Umuawo land in Suit O/32/57.
Learned counsel for the appellant, first argued grounds 3 and 5 together. He submitted that although an order of non-Suit was substituted for the declaration of title to Odo Ubiri, the setting aside of the judgment of Reynolds, J., in O/32/57 did not affect the finding of fact by him that the area verged violet in exhibit A in that case was owned by Umuawo people and that the alleged Odo Ubiri land fell within it. Therefore in the trial before Kaine J., once the judgment in O/32/57 was produced and the plan identical to Exhibit A tendered, then judgment should be given as Reynolds, J., had done. We wish to refer to the judgment of the Federal Supreme Court in Exhibit F when this same point was raised, and it reads:- “With respect to the trial Judge (Reynolds, J.,) the judgment of this court in Suit 117/1958 (117/58) in no way supports the contention of counsel or the view held by the learned trial Judge: that suit was a case in which the area claimed and known as “Ogindo Umuokwe” and edged green on the plan tendered was larger than the area to which the declaration of title was granted. The extent of the larger area was not shown but that “of the smaller area edged pink in respect of which the declaration of title was granted was shown. The judgment of this court reads as follows:- (the relevant portion of the judgment in Suit 117/58 was then recited and the judgment then continues.)
“Apart from the point of differentiation already referred to above it will be seen from these passages that the respondent conceded the point in issue during the hearing of the appeal. In my judgment, the trial Judge (Reynolds, J.,) erred in granting a declaration of title to the people of Umuawo in respect of an undefined area of land (area edged violet). To that extent the judgment must be set aside.” (Underlining and brackets supplied).
In the present case on appeal part of the judgment of Kaine, J., reads:- “Mr. Anah the learned counsel for the plaintiffs (Umuawo) said that the plaintiffs have made an explanation and that this also accounts for the differences in the size of the two areas. He asked the court not to believe the defendants’ evidence that the land had not been partitioned. He said that it looks curious that the plaintiffs are seeking a declaration over the small piece of land instead of a declaration over the whole of Umuawo land but that this is because the plaintiffs do not believe that the defendants are laying a genuine claim to the whole of Umuawo land; that they have always restricted themselves to Odo Ubiri land and that it was after the decision in the Federal Supreme Court that some of them “trespassed on Umuawo land.” (Underlining is ours).
Learned counsel for appellants did not refer to any portion of the judgment of Kaine, J., which forms the basis of the complaint on ground 5. The relevant portion of the judgment with regards to the Umuawo averment that they rented Odo Ubiri land to the Abube reads:-” I do not therefore agree with the learned counsel for the plaintiffs that since they averred in the Statement of Claim that the defendants were rent paying tenants, then it was not necessary to lead evidence in court to say so even though this was specifically denied. If on the other hand I agree with learned counsel that the evidence should be read in conjunction with the Statement of Claim, then I have to say that I am not satisfied from the evidence before me that the plaintiffs rented the land in dispute to the defendants either before or after the 1917 case. I may go further to say that it came out from cross-examination that the Abube people called Enuiyi are also known as Abube Obinagu, that is, Abube people living on the land in dispute. If this is so, it may be said that Abube Enuiyi was marked in Exhibit “D” and this makes the story of the defendants probable that their village was settled on the land in dispute long before the 1917 case. Even Lawton in Exhibit “D mentioned the village when fixing the pillars on the eastern boundary, which shows that it is not true that they came after the pillars were fixed. Even the 2nd plaintiff’s witness agreed under cross-examination that the first defendant on record who is over sixty years old according to him was born on the land in dispute.”
On the arguments on the remaining grounds of appeal, the learned counsel’s submission hinges on whether there is any issue estoppel arising from the judgment of Reynolds, J., in Suit O/32/57. The appeal court set aside the judgment and made an order of non-suit in respect of the claim for declaration of title to Odo Ubiri land. The relevant rule of court dealing with non-suit at the time the order was made is order XLV of Supreme Court (Civil Procedure) Rules Cap. 211 in volume 10 of the Laws of Nigeria, 1948 and it reads:
“1. The court may in any suit, without the consent of the parties, non-suit the plaintiff, where satisfactory evidence shall not be given entitling either the plaintiff or defendant to the judgment of the court.”
At the time the present case on appeal was instituted in 1961, the rule on non-suit was repeated word for word as above in order XLVIII of the High Court Rules of Eastern Nigeria and is in Cap. 61 volume IV of the Laws of Eastern Nigeria 1963 which came into force on 3rd January, 1956. In Poyser v. Minors (1880 – 81) 7 QB 329 at page 332-333 Lush LJ. delivering the judgment of the Court of Appeal on the effect of non-suit said:-
“A non-suit at common law was nothing more than a declaration by the court that the plaintiff had made default in appearing at the trial to prosecute his suit… It decided nothing as regards the matters in dispute but merely got rid of the pending action; leaving the plaintiff at liberty to begin de novo and this he might have done either in the same or different court, subject only to having the proceedings stayed till he had paid the costs taxed him on a non-suit.”
The Lord Justice then referred to relevant portion of County Court Act 9 and 10 Victoria C. 95 and proceeded thus:- “and Section 89 says that every order and judgment “shall be final and conclusive between the parties” but the Judge shall have power to non-suit the plaintiff in every case in which satisfactory proof shall not be given to him entitling either the plaintiff or defendant to the judgment of the court.” A non-suit under these sections would undoubtedly have left the plaintiff at liberty to bring anther action.
The rule in question puts a restriction upon this liberty ad subjects it to the discretion of the Judge to be exercised at the “time when he pronounces judgment of non-suit, any judgment of non-suit unless the judge otherwise directs shall have the same effect as a judgment upon the merits for the defendant,” but when he does not otherwise direct, the rule goes on to declare that he may set aside the non-suit,” in any case of mistake, surprise or accident, words large enough to embrace every contingency to which the failure may be attributed which reasonably entitles the plaintiff to have the validity of his demand effectively tried. It is more beneficial to both parties to have a second trial in the same action than to waste the costs already incurred and begin the litigation de novo………………
Bramwell LJ., at page 338 said: “I agree with what my Brother Lush says. But for and until this rule, the judgment of non-suit authorised by the first County Court Act 9 and 10 Victoria C. 95, would not have precluded a second action. It would have been a bar to a second action. Why Why was not a non-suit in action in the inferior courts a bar to a second action Because there “was no judgment on the matter in dispute; because the matter was not res judicata, because the maxim nemo debet bis vexari proeadem causa did not apply. The same thing was true of a second action after a discontinuance.”
In o’connor v. Malone (1839) 6 V & F, 7 ER 814, the Lord Chancellor in the judgment of the court had this to say:-
“In this case, my Lords, three points have been raised on the propriety of some of the directions given by the Lord Chancellor of Ireland on a direction for the new trial of an issue. The order directed that the former verdict should be given in evidence on the second trial; it also directed that the Appellants to pay the costs of the previous trial; and further, it directed that the new trial should take place in a country other than that in which the first trial had been had. The first question, therefore, for your Lordships to consider is, whether the direction as to the verdict in the first trial being given in evidence on the second, is one which can be supported. It certainly struck me, when I first heard it stated, as a somewhat singular direction, and I do not recollect any former instance of such a direction having been given. Nor did I recollect ever seeing an order for a new trial, in which the verdict on the first trial was even noticed. I therefore directed searches to be made among the records of the Court of Chancery, and, with one exception, there is no instance in which, in an order for a new trial, the verdict given on the first trial has been even noticed. To that instance I shall presently call your Lordship’s attention. The reason for this omission to notice the former verdict is obvious. In a (590) court of law, the verdict is a necessary part of the proceedings in a cause; it is indeed the foundation of the judgment of the court. If, therefore, the verdict which has been obtained is not such a verdict, as in the opinion of the court, can properly be the foundation of a judgment, the court necessarily requires the case to be tried a second time, and the first verdict is as of course, and by the very nature of the proceedings, ordered to be set aside. At law the subsequent proceedings are founded on the verdict, but in equity, when an issue has been directed, there are no proceedings on the verdict itself. The object of having the trial is merely to satisfy the court as to the facts in dispute between the parties. If, therefore, the court of equity is not satisfied as to these facts, all that is done, is, that the court directs a new trial with a view to obtain more satisfactory information on these facts before applying to them the principles that must decide the matter in the Court of Equity.” “I have not, from the beginning to the end of the argument, entertained any doubt that the order directing the new trial ought not to contain the direction that the first verdict should be used upon the second trial. But that raises another point, in itself perhaps not very important as showing the existence of a considerable variance between the practice of the Courts of Equity in this country and in Ireland. The practice in Ireland seems to be, that on directing a new trial, the first verdict is set aside.” “It is a well-known rule of law, that a verdict without a judgment is no evidence at all, the reason being that there is nothing to show that such verdict may not have been set aside, or may not have been acted on by the court.Now there can be no judgment obtained on a verdict given on an issue directed by the court of chancery. An order in Equity, adopting and acting on the verdict, would in that respect have the same effect as a judgment on a verdict in the ordinary course of proceedings at law. But where a court of equity, for any reason which it thinks proper, chooses to send the issue to a new trial, I think that the mere verdict would not be evidence on the second trial of the issue; and if brought to the knowledge of the jury, I apprehend that the Judge would direct the jury to pay no attention to a verdict which the court had thought proper to disregard. The expressions, therefore, attributed to Lord Hardwicke, appear to me quite unintelligible with reference to the known practice of Courts of Equity.” In Roe v. R. A. Naylor Ltd. (1918) Volume 87 LJKB at page 950 Swinfen Eady M. R., in the judgment of the Court of Appeal stated inter alia at page 963:-
“Counsel for the appellants sought to rely upon some failing of the Judge in the first trial of the action. In my opinion, he is not entitled to do that. This action was sent for a new trial, and the second trial superceded the first, and any finding in the first action was got rid of when the action was sent for a new trial.”
In a paragraph dealing with the effect of an order for a new trial, the learned authors of Phipson on Evidence 12th Edition at page 706 article 704 (last paragraph) state:-
“In new trials, the case must be reproved de novo, and the evidence and verdict given, and the Judge’s findings at the first trial are inadmissible. In Spencer Bower & Turner on res judicata 2nd Edition at page 33 (1st paragraph) it was stated: “In certain commonwealth jurisdictions, too, where the common law procedure of non-suit is preserved, or where such a procedure is provided by statute or rules of court, the result of a non-suit will be to leave “matters, so far as any plea of res judicata is concerned, precisely as they were before the action was commenced. Nothing has been decided as to the matters in dispute, except that they are, as between the parties, to remain at large.” On the state of law, therefore, since the judgment of Reynolds, J., was set aside on appeal and an order of non-suit substituted, any findings in that judgment cannot give rise to a plea of issue estoppel in the the latter action before Kaine, J. This disposes of the arguments and submission of learned counsel for appellants that there was some issue estoppel pleaded in the judgment of Reynolds, J.
On the contention as regards Exhibit B (a copy of a plan made for the Agbudu against the Abube) there is nothing on the face of the plan to show that the plan was the same as the one referred to in the judgment of Reynolds J.
In the result this appeal must fail and is hereby dismissed. The appellants, Umuawo, will therefore pay to the respondents, Abube, the costs of this appeal assessed at N133 naira.
Other Citation: (1978) LCN/2134(SC)
