His Royal Highness Ofem Inyang & Ors V. Francis Ewo Arikpo & Ors (2016)
LawGlobal-Hub Lead Judgment Report
ONYEKACHI AJA OTISI, J.C.A.
This appeal is brought against the ruling of the High Court of Cross River State of Nigeria, Ugep Judicial Division, Ugep, presided over by Honourable Justice Effiom Eyo Ita delivered on July 8, 2013, wherein the case of the Appellants was dismissed.
The Appellants are Clan and village Heads of Kaboli, Okorn, Kekowa, Kekowa II, Kobu, Okatum, Likpankol, Ekpen, Yitamitan and Osedom respectively of Kekowa, Idomi, Yakurr Local Government Area of Cross River State, Nigeria. The 1st 5th Respondents are all natives of Epono Community or Village in Kaboli Clan of Idomi in Yakurr Local Government Area of Cross River State. Until Epono was recognized as a distinct Village by the Cross River State Clans Creation Law of 1996, it was an integral part of Kekowa Village or Community. with the passage of the said 1996 Clans Creation Law, Kekowa and Epono became distinct Villages. Despite that statutory approval of Epono as a village, the people of Kekowa still sought to control the people of Epono in various ways, leading to a feeling of subjugation. Feeling aggrieved, the Epono
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Village Council on behalf of the Epono people began to assert their autonomy outside Kekowa. This became a source of tussle over the years between Kekowa and Epono. The people of Epono in furtherance of their assertion of self-existence as a village community, upon the right vested by the Cross River State Clans Creation Law of 1996 on them, took action in the Idomi/Agoi Ibami/Itu Agoi District Court in Suit No. IAI/16/08, which judgment affirmed that the Epono Community was entitled to exist and does exist as an Autonomous community, separate and distinct from the Kekowa community. The Appellants subsequently brought action before the lower Court, complaining about the infringement of their powers and responsibilities as Clan Heads and Village Heads by the 1st – 5th Respondents, and seeking the following reliefs:
i. A Declaration that the entity known as “Epono Autonomous Community, Kekowa of ldomi”, Yakurr Local Government Area of Cross River State of Nigeria is not enumerated or listed as a Traditional Village or Clan in the Cross River State of Nigeria.
ii. A Declaration that “Epono Autonomous Community, Kekowa of Idomi”, Yakurr Local Government
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Area of Cross River State of Nigeria is an illegal entity which is not known to Law.
iii. A Declaration that by a true interpretation and construction of Section 1 of the Traditional Rulers Law, Cap. T4, Laws of Cross River State of Nigeria (supra), the 1st Defendant is not a Village or Clan Head as contemplated or envisaged by the Traditional Rulers Law, supra.
iv. A Declaration that the 2nd, 3rd and 4th Defendants are not Village or Clan Heads as contemplated or envisaged by the provisions of the Traditional Rulers Law, Cap 74, Laws of Cross River State of Nigeria (supra).
v. A Declaration that the 5th Defendant as the Village Head of Epono Village, Idomi, Yakurr Local Government Area of Cross River State of Nigeria cannot subsume or abdicate his duties, responsibilities, privileges, power, functions and or authority under the canopy of the supposed Epono Autonomous Community, Kekowa.
vi. A Declaration that it is unlawful for the 1st Defendant to continue to parade or present or hold out or masquerade as the “Leader or Village or Clan Head or Traditional Ruler” of the supposed “Epono Autonomous Community, Kekowa of Idomi”, Yekuru Local
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Government Area of Cross River State of Nigeria.
vii. A Declaration that the Order or Directive to the People or Residents of the supposed “Epono Autonomous Community, Kekowa, Idomi” by the 1st – 5th Defendants that they should not contribute or participate in communal labour or community projects in the Clan of Kaboli and Villages of Osedom, Kekowa, Kekowa II; Ekpen, Yitamitan, Okom and Kobu respectively is illegal, wrongful and constitutes an infraction of Section 16 of the Traditional Rulers Law, Cap. T4, Laws of the Cross River State of Nigeria (supra).
viii. An Order of Perpetual Injunction restraining the 1st ? 5th Defendant including their servants, agents, cohorts and privies from running or administering the affairs of the supposed “Epono Autonomous Community of Idomi,” Yakurr Local Government Area of Cross River State of Nigeria under any guise.
ix. An Order of Perpetual Injunction restraining the 1st- 5th Defendant including their Servants, Agents, Cohorts and or Privies from meddling or interfering or intruding into the functions or powers or privileges or rights or responsibilities or authority of the 1st Claimant as Clan Head
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of Kaboli; 2nd Claimant as Village Head of Kekowa and Obol Kepon of Kekowa Paternal Family of ldomi and 3rd Claimant as Village Head of Ekpen; the 4th Claimant as the Village Head of Okatum; the. 5th Claimant as the Village Head of Likpankol; the 6th Claimant as the Village Head of Osedom; the 7th Claimant as the Village Head of Okorn and the 8th Claimant as the Village Head of Yitamitan respectively under the canopy or guise of running the affairs of the supposed “Epono Autonomous Community, Kekowa “.
x. An Order of Perpetual Injunction restraining the 2nd Defendant including his Agents, Servants, Cohorts and or Privies from interfering or meddling or usurping the function, responsibilities, powers and authority of the 1st Claimant as the Village Head of Kekowa & Clan head of Kaboli Clan in Idomi, Yakurr Local Government Area under the guise or cloak of being the Leader of the supposed “Epono Autonomous Community, Kekowa”, Idomi, Yakurr Local Government Area of Cross River State of Nigeria.
xi. An Order of Mandatory Injunction directing the Attorney-General of Cross River State of Nigeria to commence prosecution of the 1st ? 5th
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Defendants for running or administering the affairs of the supposed “Epono Autonomous Community of Idomi”, Yakurr Local Government Area of Cross River State of Nigeria which is not listed as a Traditional Village or Clan in Cross River State of Nigeria under the provision of Section 37 of the Traditional Rulers Law, Cap. T4, Law of the Cross River State (supra).
xii. General Damages of N5 Million against the 1st ? 5th Defendants for the hardship, discomfort, distress, trauma and damages occasioned to the Claimants.
xiii. Any further Order (s) as the Court may deem fit and proper to make in the circumstances of this case.
Upon service on the Respondents of the Appellants’ originating processes, the 1st – 5th Respondents filed their Statement of Defence wherein they raised legal questions with a notice that they may have the issues heard and determined before or at the trial. The 1st – 5th Respondents then brought an application on October 4, 2012 to dismiss the Appellants’ action. The trial Court heard arguments on the application and dismissed the action on the ground that it was statute barred and that it was caught up by estoppel per rem
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judicatam.
Aggrieved by the decision of the lower Court, the Appellants lodged a Notice of Appeal on August 30, 2013 upon three grounds of appeal; pages 173 – 177 of the Record of Appeal.
The Appellants and the 1st ? 5th Respondents exchanged Briefs of Arguments. The Appellants’ Brief of Argument was filed on January 3, 2014. The 1st ? 5th Respondents filed Brief of Argument was January 22, 2014. These Briefs were adopted on May 10, 2016 by I.U. Mgbe, Esq. for the Appellants and by K. U. Ejukwa, Esq. for the 1st – 5th Respondents. B. U. Bassey, Esq., Director, Ministry of Justice, Cross River State, who appeared for the 6th Respondent informed the Court that the 6th Respondent had filed no Brief of Argument.
The Appellant, out of the three grounds of appeal, formulated two Issues for determination as follows:
1. Whether the learned trial Judge was correct when he held that the cause of action having arisen in 1996 when the Clans Creation Edict No. 1 of 1996 was enacted the action filed by the Appellants was statute barred?
2. Whether the learned trial judge was right when he held that the action was caught up by estoppel
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per rem judicatam by virtue of judgment of the District Court of Agoi/Idomi/Itu Agoi in Suit No. IAI/16/08?
For the 1st – 5th Respondents, the following Issues were formulated:
1) Whether the Appellants’ right of action, if any, was not extinguished and the Court of trial stripped of jurisdiction to entertain the action by virtue of the Limitation Law Cap. L14 Vol. 4, Laws of the Cross River State of Nigeria 2004?
(Formulated from Ground 2)
2) The matters in the action in HUG/23/2012 having been decided in Suit No. IAI/16/2008 by a Court of competent jurisdiction between the same parties and or their privies on the same subject matter, whether the Appellants were not estoppel from taking out that action with the consequence of the same issues arising? (Formulated from Ground 1).
These issues are the same in content. I shall adopt them in the determination of this appeal.
On Issue No 1, the Appellants submitted that the learned trial Judge was wrong in holding that the action of the Appellants was statute barred because the cause of action arose when the Clans Creation Edict No 1 of 1996 was enacted. It was argued that the
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Appellants did not challenge the constitutionality or legality of the enactment of Edict No 1 of 1996. The Appellants had not averred that their civil rights were infringed by 1996. The Respondents had in their written address before the lower Court submitted that the cause of action arose in 1998. The trial Judge had no basis to come to the conclusion that the cause of action arose in 1996. The learned trial Judge ought not to have made a case for either of the parties. It contended that the learned trial Judge had raised this issue suo motu without giving the parties opportunity to be heard. The learned trial Judge had looked outside the writ of summons and statement of claim of the Appellants in arriving at his decision, when he ought not do so. Reliance was placed on Adekoya v Federal Housing Authority (2004) 4 S. C. 167, inter alia. The Court was urged to resolve this issue in favour of the Appellants.
?In reply, the 1st – 5th Respondents submitted that the conclusion of the learned trial Judge was well founded. Learned Counsel referred to the reliefs sought by the Appellants and submitted that from these reliefs, Epono as an autonomous village was
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being challenged. Epono as an autonomous village was a creation of law by virtue of Edict No 1 of 1996. The aggregate of facts that gave the Appellants a cause of action was in 1996, accrued either on January 1, 1996, when Epono was created by law; or on November 12, 1998 when people of Epono commenced the struggle to manage their affairs as an entity. That by virtue of Section 1 and 16 of the Limitation Law Cap L14 Vol 4, Laws of Cross River State, 2004, the time limit for taking out an action pertaining to matters other than land is five years. In law, time begins to run from the time the cause of action accrued and not when it was discovered; relying on Aremo II v Adekanye (2000) 2 NWLR (PT 644) 257 at 277, inter alia. The issue of an action being statute bared is an issue affecting the jurisdiction of the Court to entertain the matter; relying onB. O.N. Ltd v Saleh (1999) 9 NWLR (Pt 618) 331.
It was submitted that the learned trial Judge did not raise any issue suo motu but had upheld the case as made out by the Respondents. The Court was urged to affirm the decision of the learned trial Judge.
?When a defendant contends that the suit
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submitted to the trial Court for adjudication by a claimant is statute bared, he is in effect contending that the Court has no jurisdiction to entertain the suit at all.
This is simply because a trial Court would be bereft of the necessary vires to entertain the claims of a claimant where the claims submitted to it for adjudication are statute barred. It is firmly established that the jurisdiction of the Court is determined by the subject matter and the claim(s) of the claimant as disclosed in the writ of summons and/or the statement of claim, or other originating process; Goldmark Nigeria Ltd v lbafon Co. Ltd (2012) LPELR-9349(SC); Adetayo v Ademola (2010) 15 NWLR (PT 1215) 169; UBA Plc. v BTL Industries Ltd (2006) 12, S.C 63. The Court would examine the entire content and claims submitted to it for adjudication in determining whether or not a Court has jurisdiction The Court would then be clothed with the necessary vires to adjudicate over the matter if the claims submitted are within its competence; Tukur v. Govt of Gongola State (No.2) (1989) 4 NWLR (Pt. 117) 517; NV Scheep v. MV ?Araz” (2000) 15 NWLR (PT 681) 668; Ayorinde v. Oni (2000) 3 NWLR
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(Pt 649) 348, Omnia Nigeria Ltd v Dyktrade Ltd (2007) 12 MJSC 115.
Thus, in determining whether an action is statute barred, all that is required is for the Court to examine the writ of summons and the statement of claim alleging when the wrong was committed, which gave the plaintiff a cause of action and comparing that date with the date on which the writ of summons was filed. This can be done without filing a statement of defence and without taking oral evidence. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred; Egbe v. Adefarasin (1987) 1 NWLR (Pt 47) 1 at 20-21; Aremo 11 v. Adekanye (supra), (2004) ALL FWLR (PT 224) 2113 at 2132 – 2133; Hassan v. Aliyu (2010) 17 NWLR (PT 1223) 547. The Supreme Court, per Adekeye, JSC, in Ajayi v. Adebiyi (2012) LPELR-7811(SC) restated the guiding elements of limitation of action thus:
“The yardsticks to determine whether an action is statute-bared are:
a) The date when the cause of action accrued.
b) The date of commencement of the suit as indicated in the writ of summons.
c) Period of time prescribed to bringing an action to be
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ascertained from the statute in question.
Time begins to run for the purposes of the limitation law from the date the cause of action accrues.”
It is therefore always necessary when dealing with a limitation of statute, to ascertain the exact date on which the cause of action arose.
An action commenced after expiration of the period, within which an action must be brought, as stipulated in a statute of limitation, is not maintainable. The plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of limitation laid down by the limitation law for instituting such action has elapsed. The plaintiff would then be left with a bare and empty cause of action which he cannot enforce, for the Court would have no jurisdiction to entertain a statute barred claim; Olagunju v. PHCON (2011) LPELR-2556(SC); Mil. Administrator, Ekiti State v. Aladeyelu (2007) 4-5,S.C. 201.
Therefore, legal proceedings to enforce a cause of action cannot be properly or validly instituted after the expiration of the prescribed limitation period; Ekeogu vs. Aliri (1991) 3 NWLR (Pt 179) 258; Eboigbe v.
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NNPC (1994) 5 NWLR (Pt 347) 649 at 659; Odabeko v. Fowler (1993) 7 NWLR (Pt 308) 637; Amadi v. INEC (2012) LPELR-7831 (SC).
The words cause of action simply mean a factual situation, the existence of which entitles one person to obtain a remedy against another person. A cause of action consists of every fact that would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. In defining what may constitute a cause of action, the Supreme Court per Karibi-Whyte, JSC in Bello v, Attorney General, Oyo State (1986) 5 NWLR (Pt 45) 828 at 876 said:
“I think a cause of action is constituted by the bundle or aggregate of facts which the law will recognize as giving the Plaintiff a substantive right to make the claim against the relief or remedy being sought. Thus the factual situation on which the Plaintiff relies to support his claim must be recognized by the law as giving rise to a substantive right capable of being claimed or enforced against the Defendant. In other words the factual situation relied upon must constitute the essential ingredients of an enforceable right or claim.”
The cause of action must be
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revealed in the pleadings of the claimant.
The Court would therefore confine itself only to the averments in the Statement of Claim in the assessment of whether or not the plaintiff has a reasonable cause of action; Shell B.P. Petroleum Development Co. of Nigeria Ltd & Ors. v. Onasanya (1976) 6 S.C 89, 94; Fumudoh & Anor v. Aboro & Anor (1991) 9 NWLR (Pt 214) 210 at 231 – 232.
The Appellants’ Statement of Claim, which includes the reliefs sought by the Appellants is very revealing. The reliefs sought have already reproduced above. For emphasis, the Appellants sought, inter alia:
i. A Declaration that the entity known as “Epono Autonomous Community, Kekowa of Idomi”, Yakurr Local Government Area of Cross River State of Nigeria is not enumerated or listed as a Traditional village or clan in the Cross River State of Nigeria.
ii. A Declaration that “Epono Autonomous community, Kekowa of Idomi”, Yakurr Local Government Area of Cross River State of Nigeria is an illegal entity which is not known to Law.
iii. A Declaration that by a true interpretation and construction of Section 1 of the Traditional Rulers Law, Cap. 74, Laws of
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Cross River State of Nigeria (supra) the 1st Defendant is not a Village or Clan Head as contemplated or envisaged by the Traditional Rulers Law, supra.
iv. A Declaration that the 2nd, 3rd and 4th Defendants are not Village or Clan Heads as contemplated or envisaged by the provisions of the Traditional Rulers Law, Cap. T4, Laws of Cross River State of Nigeria (supra).
?A community reading of the averments in the Statement of Claim as well as the reliefs sought, pages 1 – 14 of the Record of Appeal, would reveal that the main grouse of the Appellants is with the existence of an Epono Autonomous Community, which the Respondents are alleged to have espoused and as a result, the authority of the Appellants as Clan Heads of Villages within the larger Kekowa Community to which Epono was alleged to owe allegiance, was being challenged. The Appellants did not plead any date as to when this alleged insubordination commenced. In the affidavit in support of the Motion on Notice filed by the Respondents, the ruling upon which this appeal was lodged, the Respondents averred that the right of the Respondents to exist as a village community or entity was based on the
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Cross River State (Clans Creation) Edit No 1 of 1996. This said right was affirmed by a decision of the District Court of Idomi/Agoi Ibami/Itu Agoi in Suit No IAI/16/08. See pages 111 – 112 of the Record of Appeal. The Appellants filed no counter affidavit to these depositions but filed a process which they termed: written address in opposition to the motion, see pages 132 – 159 of the Record of Appeal.
The foundation of the grouse of the Appellants was with the creation of Epono Village, which was created in 1996 by virtue of the Edict No 1 of 1996 of Cross River State. The subsequent actions taken by the Respondents in self-determination were founded on the earlier Edict No 1 of 1996. These subsequent actions in self-determination, whether commenced in 1998 or later, were merely the outcome of any perceived or real injury earlier caused by the creation of Epono as a Village. Therefore, there was a cause of action by 1996 when Epono Village was created by law. A relief sought in 2012 seeking to have the said Epono Village or Autonomous Community declared illegal cannot be made about sixteen years after it was created, having regard to the extant
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provisions of the Limitation Law of Cross River State.
In Fadare vs. Attorney General of Oyo State (1982) 4 SC (Reprint) 1 at 11, the Supreme Court per Nnamani JSC said:
“Time therefore, begins to run when there is in existence a person who can sue and another who can be sued, and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed.”
Thus, time will start to run when all the facts which constitute the plaintiff’s cause of action are in place; Nigeria Ports Authority vs. Ajobi (2006) 7 S.C. (PT. 1) 23, (2006) 7 SCNJ 168 at page 174.
The learned trial Judge ruled thus, at page 168 of the Record of Appeal:
“By a combined reading of SS 1 and 16 of the Limitation(sic) Law Cap L14 Vol 4 Laws (sic) of Cross River State, 2004 the time limited for taking out an action in Court on matters other than land is 5 years. Epono Village was creation Edict No. 1 of 1996. In this action the Claimants seek a declaration that Epono Village is not an autonomous(sic) Village. The present cause of action accrued since 1996. Not being a land matter this cause of action had to be brought to Court 5 years from
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1996 or the Claimant keep quiet for ever. Those 5 years expired in 2001. From 2002 this cause of action was statute barred. I find and hold that this action which was filed on 25/7/2012 is statute barred.”
I see absolutely no reason to disturb these findings and conclusion. Issue No 1 is therefore resolved against the Appellants in favour of the 1st – 5th Respondents.
It is well settled that for a defence or plea of res judicata to succeed the parties in the previous action which is pleaded, and in the present one must be the same, the subject matter must be the same, the claim must be the same and the Court which pronounced the judgment must be a Court of competent jurisdiction, Ogbogu v. Ndirbe (1992) 6 NWLR (Pt 245) 40, Daniel Tayar Trans Ent Nig. Co. Ltd v. Busari (2011) LPELR-923 (SC); A.G. of Nassarawa State v. A.G. of Plateau State (2012) LPELR-9730 (SC); Ayaya v. Yonrin (2011) LPELR- 686 (SC). The judgment in the earlier case to operate as estoppel per rem judicata must be a decision on the merit, a final judgment, deciding on the rights of the parties, Obasi Bro. Merchant Co. Ltd v. Merchant Bank of Africa Securities Ltd (2005) 2 S.C (pt
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11) 51, Abiola & Sons Bottling C. Ltd v Seven-Up Bottting Co Ltd (2012) LPELR-9279(SC).
In Ogbogu v. Ndirbe (supra), the Supreme Court, per Ogundare JSC, said:
?It is trite that where a Court of competent jurisdiction has settled, by a final decision, the matters in dispute between the parties neither party nor his privy may re-litigate that issue again by bringing a fresh action. The matter is said to be res judicata. The estoppel created is one by record inter parties. Now there are two kinds of this estoppel. The first is called ’cause of action’ estoppel while the second is known as issue estoppel. Idigbe JSC distinguished the two types of estoppel by record inter parties in Fadiora v. Gbadebo (1978)3 SC 219 228-229 in these words:
“Now, there are two kinds of estoppel by record inter parties 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 504). Therefore, on this principle of law (or rule of evidence) once it appears that
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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 re- litigating the same cause of action. There is however, a second kind of estoppel inter parties 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 Cutram v. Morewood (1803) 3 East 346). Issue estoppel applies 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 preconditions to a valid plea of
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estoppel inter partes or per rem judicatam must apply, that, (1) the same question must be for 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).”
Where the plea of res judicata is proved, it ousts the jurisdiction of the Court before which a fresh action is submitted for adjudication from entertaining the question already decided. Thus, a successful plea of res judicata constitutes a bar to any fresh action between the parties; Ito v. Ekpe (2000) 3 NWLR (Pt.650) 678; Ajiboye v. Ishola (2006) 11 MJSC 192.
The proceedings and decision in Suit No IAI/16/08 before the District Court of Idomi/Agoi Ibami/Itu Agoi is reproduced at pages 118 ? 121 of the Record of Appeal. These proceedings reveal that the parties were: Francis Ewa Arikpo of Epono, for himself and on behalf of Epono Village, as plaintiffs and Chief Iferi Ibiang Arikpo, Head of
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Kekowa Village, Chief Ofem Obeten, for themselves and on behalf of Kefrowa Village or Community, as defendants. The claim was for:
1. A declaration that by the Cross River State Clans Creation Edict No 1 of 1996, the people of Epono in Kaboli Clan of Idomi exist as an autonomous village or community with right to so exist like any other village in Kaboli Clan;
2. Perpetual Injunction restricting the defendants, their agents, servants, cohorts hirelings or assigns from interfering with the right of the people of Epono or doing anything inconsistent with their right of self independence and autonomous existences as a village or community in Kaboli Clan.
The said District Court, a Court of competent jurisdiction, heard both parties and ordered as follows:
1. From today 10th day of June 2008 when this declaration is made before this Court with records available the people of Epono Village in Kaboli Clan, Idomi remain autonomous Village with Chief Ina lbiang Okah as the Village Head.
2. No group of persons or agencies shall have any right to interfere into the activities of Epono Village.
3. Let no group of persons interfere in to the
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right of existence of Epono as a Village outside Kekawo.
4. Is for perpetual injunction restraining the Defenant, their agents, servants, cohort in liring(sic) or assigns from interfering with the right of the people of Epono or doring anything inconsistence (sic) with their right of self independent (sic) and autonomous existence as a Village or Community in Kaboli Clan.
JUDGMENT
The autonomy of Epono is hereby granted.
The foregoing analysis reveals as follows: The parties/privies in the previous action, Suit No IAI/16108, and in the present one are the same. The subject matter in both actions is centred on the existence of the Epono as an autonomous Community. The Court which pronounced the judgment is a Court of competent jurisdiction. The orders were made at the conclusion of a hearing on the merit. Upon these considerations, the learned trial Judge found and held as follows, at page 170 – 171 of the Record of Appeal:
“The above is a valid and final judgment/order of competent Court. There is no evid (sic) that it has been reverged (sic). The above judgment/order/declaration by the District Court is in rem and not in persons(sic).
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It binds the whole world and not only parties to Suit No. IAI/16/2008. The other Claimants on record are equally bound by Court. Their remedy lies in an appeal and not in the present action.
In the final analysis, having found that all the conditions necessary for the application of the doctrine of estoppel per rem judicattam(sic) exist in the present proceedings vis a vos(sic) Suit No. IAI/16/2008. I hold that the present Claims are estopped. Estoppel operates to prevent a party from leading evidence at all against the adjudged position. In that wise an action which is estopped cannot disclose any cause of action at all talk less of a reasonable cause of action.”
Once again, I see no reason to disturb these conclusions of the learned trial Judge.
It was contended by the Appellants that the judgment of the District Court was not a judgment in rem but in personam. In Dike v Nzeka 11 (1986) LPELR-945(SC), the Supreme Court, per my Noble Lord, Oputa, JSC, characteristically, provided an explicit distinction between a judgment in rem and in personam in these terms:
“A judgment is said to be in rem when it is an adjudication pronounced upon the
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Status of some particular thing or subject matter by a tribunal having the jurisdiction and competence to pronounce on that Status. Such a judgment is usually and invariably founded on proceedings instituted against or on something or subject-matter whose status or condition is to be determined. It is thus a solemn declaration on the status of some persons or thing. It is therefore binding on all persons in so far as their interests in the status of the property or person are concerned.
That is why a judgment in rem is a judgment contra mundum- binding on the whole world – parties as well as non- parties. A judgment in personam, on the other hand, is on an entirely different footing. It is a judgment against a particular person as distinguished from a judgment declaring the status of a particular person or thing. A judgment in personam will be more accurately called a judgment inter parties. A judgment in personal usually creates a personal obligation as it determines the rights of parties inter se to, or in the subject-matter in dispute whether it be land or other corporeal property or a liquidated or unliquidated demand, but does
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not affect the status of either the persons to the dispute or the thing in dispute.”
See also: NPA v Panalpina World Transport (1973) 5 S.C (REPRINT) 54; Rhein Mass Und See v Rivway Lines Ltd (1998) 4 S. C. 73. The distinction between a judgment in rem and a judgment in personam, as graphically drawn by these established authorities, point to the fact that the judgment of the District Court was a judgment in rem, and binding on the whole world, as rightly surmised by the learned trial Judge. Epono as an autonomous Village had been created by law. The orders made by the District Court were in line with the extant provisions of Edict No 1 of 1996. The decision of the District Court was not directed at particular person nor it only declare the status of a particular thing. It was a judgment in rem, declaring the status of the Epono Community and binding on the whole world. I therefore see no reason to disturb the conclusion of the learned trial Judge.
I find no merit in this appeal. It is accordingly hereby dismissed, the ruling of the High Court of Cross River State of Nigeria, Ugep Judicial Division, Ugep, delivered on July 8, 2013 by Honourable
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Justice Effiom Eyo Ita, dismissing the case of the Appellants is hereby affirmed.
The 1st – 5th Respondents are entitled to costs, which I assess at N50,000.00 against the Appellants.
Other Citations: (2016)LCN/8862(CA)
