L. N. Nwajuebo V.vincent Alabua & Anor. (1974)

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FATAYI-WILLIAMS, J.S.C.

The plaintiff is a member of the Umu Alibo Family of Ibusa in the Mid-Western State and commenced these proceedings in the Ibusa Customary Court against the defendants who are sued as the representatives of the Umu Ozoma family, also of Ibusa. The plaintiff’s claims in the customary court were as follows:-

“Declaration of title to the ownership of a piece of land known as Umu Alibo family land situated at Ogbeowele quarters, Ibusa. The said piece of land including our dwelling houses and economic plants is the property of the said Umu Alibo family. The said piece of land is bounded on the east by Umu Kwuta family land, on the north by Umu Ozoma land ending at Nkogo Ocha, on the west by Umu Ogwu family farm land, on the south by Umu Kwuta family land. The value of the land described above is fifty pounds (50 Pounds).

(B) An injunction to retrain the defendants their servants and their agents from further molestation of the plaintiff’s encroachments on the land described in paragraph (A) above.”

In the course of his testimony before the customary court in support of his claim, the plaintiff was questioned by the court on 5th February, 1968, about previous litigation concerning the land in dispute. To these questions he replied as follows:-

“Yes, a part of the parcel of the land in dispute (and) that belongs to Umu Alibo family included the present claim was subject of court action in 1909. This part of the land is known as Akwuezike. I was not born. My father was on the plaintiff’s side. We have been living on the land in dispute for over decades of years. I am about the ninth generation. I am told the matter came to court a second time and that the defendants were told the part of the land was theirs but they refused the court order that the matter by an arbitration, I was informed. I have no knowledge of the arbitration. I made farms on the land in dispute in 1940, 1945, and 1967. No tributes were paid. I am strongly of the opinion that Alibo had a share in Akwezike farm land.”

The hearing was then adjourned to 15th February, 1968. On 14th February, 1968, that is, a day before the hearing was to be continued, the plaintiff wrote to the court asking for his claim to be amended. As a result of this application, the hearing could not continue on 15th February, 1968. Instead, the court, after making an order that the defendants should be served with a copy of the plaintiff’s application for amendments, adjourned the case to 6th March, 1968. It also indicated that the area of land referred to in the application would be inspected on that same day. The usual order as to inspection fees was also made.

The Ibusa Customary Court duly inspected the land on 6th March, 1968. Both the plaintiff and the defendant were present at the inspection. After the inspection, at which questions must have been put to the parties, the court members resumed the hearing in court and then found as follows:

“The original claim covers an area of about 1,320 yards and that is dwelling areas and farmland put together. The plaintiff seek an order of court to set aside 320 yards of this land in his amendment on the grounds that he wishes to contest the two areas separately and that he wishes to contest the dwelling area first. The defendants raised an objection on the ground that the areas involved had been subject of court action in suit No. 154 of 17th February, 1909, 131 of 19th February, 1926, and review of 5th March, 1926. (Copies tendered marked Exhibit “A” and “B”). The title of the land according to the documents and the defendant is Akweuzike. About 320 yards of the land the plaintiff admitted to be Akwuezike and the 1000 yards they call Umu Alibo family land. According to the plaintiff these are regarded as dwelling areas. From observation there is no specific demarcation between Umu Alibo family land and Akwuezike farmland. Debris of old building of Umu Alibo family can only be seen not more than 10 yards from their present areas of occupation and behind their buildings can be seen small farm holds. The court is satisfied that the whole area covering about 1, 320 yards is Akwuezike. This is also confirmed in the records under reference. That the parcel of land has been subject of court action on a number of occasions.” (The underlining is ours).

After observing that an injustice would be done to the defendants if the application for amendment is granted, the court finally ordered as follows:-

“The amendment is therefore dismissed with the original claim and 5 Pounds.5s awarded to the defendants.”

The plaintiff successfully appealed to the Asaba Magistrate’s Court against that judgment. In a reserved judgment, the learned Chief Magistrate who heard the appeal observed, rightly in our view, that, in order to sustain a plea of res judicata in a trial in a customary court, it is sufficient if the defendant brings out the previous judgment relied upon and satisfies the court that the land in dispute has been litigated upon before and that the judgment he has produced is the judgment in his favour. The learned Chief Magistrate also observed, again with justification, that the finding of the Ibusa Customary Court after the land in dispute had been inspected by the court, showed that the plea of res judicata was “taken by the defendants at an opportune time.” He, nevertheless, allowed the appeal, set aside the judgment of the Ibusa Customary Court and ordered that the case be reheard de novo by the Ogwashi-Uku Customary Court.

In coming to this decision, the learned Chief Magistrate found that there was no evidence to show that the land in dispute is the same land which had been adjudicated upon in Exhibits “A” and “B”. He also found that the customary court acted prematurely in dismissing the plaintiff’s case at the time it did so.

Being dissatisfied with the decision of the learned Chief Magistrate, the defendants appealed to the Asaba High Court. The learned Judge of appeal, after considering the arguments adduced on behalf of the parties, observed that the learned Chief Magistrate allowed the appeal on the ground that the defence of res judicata was not made out. He also observed that this ground was not raised by the plaintiff in his appeal in the Magistrate’s Court and that it was wrong for the learned Chief Magistrate to have raised the point suo motu and decided the appeal on it particularly as it is clear from the records that learned counsel were not afforded an opportunity of arguing the point.

The learned judge of appeal, nevertheless, also examined the decision of the Chief Magistrate on the plea of res judicata (which he had then allowed learned counsel to argue before him) and came to the conclusion that the learned Chief Magistrate was, in any case, wrong in his view that the plea of estoppel per rem judicatam was not made out. He then allowed the appeal, set aside the decision of the learned Chief Magistrate, and restored the decision of the Ibusa Customary Court.

The plaintiff has now appealed to this court against this judgment. The short point canvassed before us at the hearing of this appeal is that the learned Judge of appeal was in error when he concluded that the plea of estoppel per rem judicatam was rightly sustained at the trial in the Ibusa Customary Court. In his reply to this contention, learned counsel for the defendants submitted that, quite apart from the fact that appeal lacks merit, the appeal was not properly before us because leave to appeal to this court had not been obtained either from the High Court or from this court. We refused to entertain the objection at that late stage and now give our reasons for so doing.

Provisions are made in Order VII rule 14 of the Supreme Court Rules as to the procedure to be followed by a respondent who wishes to raise a preliminary objection to the hearing of an appeal. The rule reads-

“14 (1) A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing: setting out the grounds of objection, and shall file such notice together with six copies thereof with the Registrar within the same time.

(2) No objection shall be taken to the hearing of an appeal on the ground that the amount fixed by the Registrar of the court below under rule 7(1) of this Order were incorrectly assessed.

(3) If the respondent fails to comply with this rule the Court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the respondent or may make such other order as it thinks fit.”

Manifestly, the purpose of the above rule is that the appellant should not be taken by surprise. It is for this reason that provision is made for giving the appellant three clear days notice of any preliminary objection to the hearing of the appeal and for such notice to contain the grounds for the objection. In order to comply with the requirements of the rule, such notice and grounds of objection will, of course, have to be in writing.

In the case in hand, not only has the respondent not given such notice, he has also made no application for adjournment to enable him to give the required notice. Instead, learned counsel for the appellant waited until the arguments in support of the appeal had been concluded before raising the objection verbally in reply. This procedure is precisely what Order 7 rule 14 is intended to avoid and that is why we refused to entertain the objection raised in a manner which, in our view cannot be too strongly deprecated.

However, we think the appeal itself lacks merit having regard to what transpired at the hearing in the Ibusa Customary Court including the visit of the members of that court to the land in dispute where, judging from their finding, they must have questioned the parties and soon all the features of the land, before refusing the application for amendment and deciding that the plea of res judicata was made out by the respondents.

We are not oblivious of the fact that, after the visit to the land in dispute, the customary court did not ask the plaintiff to conclude his case as they ought normally to have done. But regard should be had to the procedure obtaining in the customary court. No pleadings are filed and if the same occasion had arisen in the High Court, a defendant could have moved the High Court for the plaintiff’s case to be dismissed on the ground of res judicata without asking that the defendant be allowed to give oral evidence in court. In the present case, there is no doubt, as we stated before, that the customary court found that res judicata applied to conclude the plaintiff’s case and it would have been completely futile for the plaintiff, in the circumstances, to continue to lead further evidence in the same matter.

Moreover, we would like to point out, that, contrary to the views expressed by the learned Judge of appeal, the record did show that the issue as to whether or not the plea is tenable was, in fact, raised before the learned Chief Magistrate as can be seen from the notes taken by him (the Chief Magistrate) during the hearing of the appeal before him. The notes read:-

“Mr. Chigbue argues the appeal. …………………..

On ground 3, Counsel submits that the lower court erred in law in holding that a plea of estoppel per rem judicatam operates against the plaintiff/appellant when the defendant did not raise such a plea. What the appellant said in answer to the questions put to him by the court cannot make such a plea binding on him……………………………………………

Mr. Oji replies and says that the appellant’s counsel has not adduced sufficient reasons why this case should be sent back to the lower court for a rehearing de novo ……

As to ground 3, Counsel submits that the plea of estoppel per rem judicatam was in fact raised by the defendants at the locus in quo and it was in support of that plea that the defendants tendered Exhibits “A” and “B”. As to the principles governing the pleas counsel refers court to the case of Nwaneri & Ors. v. Oriuwa & Ors. 4 F.S.C. 132.”

Ground 3 of the grounds of appeal which both counsel argued before the learned Chief Magistrate reads:-

“3. The Court erred in law by holding that the plea of estoppel per res judicatam operates against the plaintiff/appellant whereas the defendants/respondents had not raised such a plea.”

It is, therefore clear from the foregoing that the point regarding the plea was duly raised and strongly urged upon the court by the learned counsel for the plaintiff in the appeal in the Asaba Chief Magistrate’s Court.

Save for the above, the appeal lacks merit and it is dismissed with costs assessed at N80.

SC.17/1973