Ezewuihe Ikoku & Ors V. Reuben Ekeukwu & Ors (1995)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C.

The main issue that calls for determination in this appeal is in respect of the plea of res judicata and/or issue estoppel raised by the defendants (who are now respondents in this appeal) in their pleadings. The plaintiffs (now appellants) have sued the defendants claiming –

(a) declaration of title to two pieces or parcels of land known and called Uhu land and Ekpe land, and

(b) an injunction restraining the defendants etc. from committing further acts of trespass on the said pieces of land.

Pleadings having been ordered, filed and exchanged, the case proceeded to trial at the end of which the learned trial Judge, in a reserved judgment, rejected the plea of estoppel per rem judicata and/or issue estoppel raised by the defendants. He considered the case on the merits and found for the plaintiffs, entering judgment in their favour in terms of their claims. Being dissatisfied with that judgment the defendants appealed to the Court of Appeal (Enugu Judicial Division) on one original and six additional grounds of appeal. In their Appellants Brief, the defendants posed three questions as calling for determination and these were:

“(a) Having regard to the evidence (oral and documentary) before the trial court can it be said that the doctrine of estoppel per rem judicatam or at least issue estoppel was not established in this case so as to preclude the plaintiffs/respondents from asserting any claim over the land in dispute (or at least part of it) against the defendants/appellants) or re-opening the issues raised and determined in a court of competent jurisdiction

(b) If the answer to the first issue raised above is in the negative, was the learned trial Judge right in entering judgment for the plaintiffs/respondents over the land in dispute in the face of a subsisting and valid judgment of a court of competent jurisdiction.

(c) Apart from estoppel having regard to the totality of the evidence before the lower court can it be said that the plaintiffs established their case so as to entitle them to judgment.”

The Court of Appeal in its judgment dealt primarily with the plea of estoppel per rem judicatam and issue estoppel raised by the defendants and which formed the subject matter of questions (a) and (b) in the appellants’ Brief. Question (c) was not considered, except rather obliquely, in the lead judgment of Olatawura J.C.A. (as he then was). Suffice it to say that the learned Justices of the court below found that the plea of res judicata and/or issue estoppel succeeded. Olatawura J.C.A. concluded his leading judgment (with which the other Justices agreed) in these words:

“From whatever angle one looks at this appeal, either on the issue of estoppel per rem judicatam or issue estoppel or on the totality of the evidence given before the learned trial Judge, the case of the plaintiffs/respondents ought to have been dismissed.

It is no longer necessary for me to consider the other grounds of appeal since the appellants have succeeded on grounds 1.2.3.5 and 7. The appeal is allowed.”

Being dissatisfied with the setting aside by the Court of Appeal of the judgment of the trial High Court which went in their favour, the plaintiffs have now appealed to this court upon three grounds of appeal which, without their particulars, read as follows:

“1. The learned Justices of the Court of Appeal erred in law when they held that the findings made by the High Court of Owerri Judicial Division in its judgment in Suit No. HOW/109/63 – Unachukwu Nwadigbo & ors. Nlemadim Akwukwor & ors, to the effect to wit:-

‘I find as a fact that the defendants are the owners in possession of the land in dispute and the lands north and south of the land in dispute the northern boundary extending to the area verged green and forming boundary with the plaintiffs. I find as a fact that the defendants have farmed and are still farming the land in dispute. I am satisfied that the defendants had given sufficient evidence of possession and acts of ownership (and supported by the evidence of the plaintiffs’ first witness) and would have entitled them to a declaration that they are the owners of the land had there been a counter-claim’