Nwopara Ogbogu & Ors Vs Nwonuma Ndiribe & Ors (1992)

LawGlobal-Hub Lead Judgment Report

E. OGUNDARE, J.S.C

By a writ of summons taken out in the High Court of the now defunct East Central State of Nigeria on 16th August, 1975, the plaintiffs (who are hereinafter referred to as the appellants) sued the defendants (now respondents) claiming :-

“(a) Declaration of title to the piece and parcel of land known as and called ‘OHIA ACHARA’ situate at Ezemelaha Village, in Eziama within the Orlu Judicial Division with annual value of N10.00

(b) N400.00 (Four hundred Naira) being damages for trespass.

(c) An Injunction permanently to restrain the defendants, their servants, agents, and or workmen from further interference upon the said land.”

Pleadings were ordered and duly filed and exchanged. On the creation of Imo State of Nigeria, the suit was transferred to the High Court of that State. With leave of the trial Court both parties amended their respective pleadings. The appellants also with leave of Court further amended their pleadings. The case was eventually tried on the further amended Statement of Claim and the amended Statement of Defence.

In paragraphs 6,7,8,9, & 10 of the further amended Statement of Claim, the appellants pleaded as follows:-

“(6) The plaintiffs are the owners of the land in dispute from time immemorial. Plaintiffs have also been in possession of the land in dispute save the portions granted, for residential purposes, to members of defendants’ village on customary grants and the portions sold to Joseph Oguike and Godwin Iwuchukwu.

(7) Plaintiffs inherited the land in dispute from their ancestors who are traceable and traced thus:-

(a) Ezeanorue who was the common ancestor of both the plaintiffs and the defendants was the first known owner of the land in dispute. The said Ezeanorue had six sons namely: Ezerioha; Ezealagaji; Ezeaaochie; Ezemenaha; Ezekwemba and Ezealanwokeotuwe, Ezerioha predeceased his father and thus lost the rights of a first son. The said Ezerioha and Ezealanwokeotuwe were uterine brothers. At the death of Ezeanorue all his lands were shared into five places. Each of the sons got one share except Ezealanwekeotuwe who got one share for himself and the sons of his uterine brother Ezerioha.

The sharing was per stripes according to custom. Ezealageji as the surviving first son got the okpule as his share. Ezealanwokeotuwe, for himself and the sons of Ezerioha, got as his share the land from the defendants’ boundary with the land in dispute to the valley of Njaba. Ezemenaha got the land in dispute as his share. Ezeanochie and Ezekwemba had their own respective shares.

(b) Descendants of Ezealagi and Ezeanochie later merged and became known as Ndiuhunagbo Village.

(c) Descendants of Ezealanwekeatuwe and Ezerioha and people of Umuduruola, who, according to oral traditional history, migrated from Nkume, now constitute the Ndimbara Village of the defendants. They enjoy the land which Ezealanwokeotuwe got for himself and the sons of Ezerioha when EZEANORUE’ s lands were shared among his sons.

(d) EZEMENAHA who got the land in dispute begat Agu; Ezeagu, Oparaocha; Igbojianu, Okoroji and Nwaba.

AGU begat Achiere who begat Onukogu and Okorafo. Onukogu begat Agbahiwe who begat Osuagwu who was the father of Nwanosike Okorafor begat Ukanedo who begat Mgbudem who begat Onwuemeka.

EZEAGU was the father of Ezeanowa, Ehirim, Chamara and Ogbogu, Ezeanewa begat Ademoha who begat Anueyiogu who begat John. Ogbogu begat nwopara. Ehirim and Chamara had their own descendants.

OPARAOCHA begat Ezenwanokwute who begat Bekere and Osuigwe who was begat Bekee and Osuigwe who was the father of Onwuanumkpe.

IGBOJIANU was the father of Nwosu, Nwadike who begat Mathew and Njaka who begat Anthony.

OKOROJI begat Ibeawuchi, who begat Nwiwu who begat Louis.

NWABA was the father of Akanue who begat Iyioku who begat Ajomiwe.

There are other descendants of Ezemenaha now living. The land in dispute devolved on the plaintiffs as family property from Emenaha through their ancestors traced herein as over.

(8) Plaintiffs’ ancestors during their respective lives made diverse use of the land in dispute. They lived and farmed on it. They harvested economic and timber trees thereon and generally exercised maximum acts of ownership and possession over the same without let or hindrance. Plaintiffs farm on various portions of the land, harvest economic and timber trees thereon and exercise maximum acts of ownership and possession over the same without let or hindrance.

(9) The plaintiffs, in exercise of their right as owners in possession granted portions of the land in dispute to some members of the defendants’ village for residential purposes on customary terms. Plaintiffs worship their Ogwugwu and Ihundi Okenye juju shrines on the land in dispute. Osuagwu Agbahiwe of Ezemenaha pledged a portion of the land in dispute to Chief Ihenacho Agbahiwe of Amucha. Also Nwaneri Nwosu of Ezemenaha granted a portion of the land for farming purposes to his son-in-law called Ndulokwenazike (Azubuike) of Duruobiaku Amucha.

(10) The defendants had their dwelling houses at the Njaba valley from time immemorial. The ruins of their houses can still be found there. During the influenza of the First World War the defendants were dying in quick succession and they decided to leave their homes at the valley. Some of them built new homes and now live on their portion of land while others – notably those mentioned in paragraphs 5 above applied for and were granted portions of the land in dispute, for residential purposes on customary terms which included the following:-

(a) the grantees and their descendants shall live on the land for as long as they wish but on leaving the land for whatever reason the land reverts to the grantors i.e. plaintiffs;

(b) the grantees and their descendants shall not cut down any timber trees or harvest economic tress on the land;

(c) the grantees and their descendants shall not dispute the grantors’ ownership of the land, the subject-matter of the customary grant;

(d) each grantee and/or his descendants shall pay to his grantor an annual tribute of 8 yams, 8 Kolanuts, 8 Alligator pepper and 4 gallons of palm wine. ”

The respondents in reply pleaded in paragraphs 4, 5 and 6 of their amended statement of defence as hereunder:-

“4. The Defendants deny paragraph 5 of the amended claim and aver that the plaintiffs have no juju shrine anywhere inside the land in dispute. There are two juju shrines in the land in dispute as shown in Defendant’s plan, and they have been worshipped by the Defendants’ people from time immemorial. In HOR/47/75 the Plaintiffs then Defendants averred in their Statement of Defence that the Ogwugu juju shrine was within the ‘Okohia’ land in dispute in that case. The Statement of Defence in that suit is hereby pleaded. The same is contained in the Record of Appeal in SC/179/84 which is hereby pleaded. The trial Court found as a fact that there was no juju in the Okohia land, the Court of Appeal and Supreme Court upheld it. The Defendants further aver that no member of their village was ever granted land to live on by the Plaintiffs’ people. Any piece of land formerly belonging to Plaintiffs’ people on which any member of the Defendants’ people live was purchased and can only be found at the boundary of the land in dispute with the Plaintiffs’ land.

The Onuoha referred to in paragraph 5 (iv) of the Amended Claim was the Warrant Chief or Eziama from 1912 and had his compound on the site where it is still situate in Ndimbara village since before 1912. His descendants now inherited his compound.

The Defendants deny paragraph 6 of the Amended Claim and will put the Plaintiffs to the strictest proof of their averment in this paragraph. The Defendants further aver that the High Court in HOR/47/75 found as a fact that the Defendants (Plaintiffs in that suit) were the owners in possession of the surrounding land to the Okohia Ndimbara as shown on both Plaintiffs’ and Defendants’ plans in that and this suit. The present Plaintiffs went on appeal to the Court of Appeal and Supreme Court and both appeal Courts upheld that finding of fact. The Court of Appeal No. is FCN141/81 the Supreme Court No. is SC/179/84. The Defendants hereby plead the judgments of both appeal Courts.

The present action is a cross action to the said HOR/47/75, and they are both representative actions. The land surrounding the ‘Okohia Ndimbara’ which was found to be the land of the present Defendants is the land now in dispute. The Defendants will contend that the Plaintiffs are estopped from re-opening that issue which was canvassed and determined in HOR/47/75. The Plaintiffs did not grant any piece of the land in dispute to any of the defendants’ people, and none was sold to Joseph Oguike. Godwin Iwuchukwu lives at the boundary of the Ndimbara Village and the plaintiffs’ Ezemenaha Village; when he was building the house the land did not do for him so he bought a little piece of land from Mgbudam Okeoafo of plaintiffs’ village to enlarge his compound. Joseph Oguike merely redeemed a piece of land which his father pledged to one Agoha of plaintiffs’ village.

5. The defendants deny paragraph 7 of the Amended Claim and aver that the Ndimbara Village – the land in dispute – was not inherited by the Plaintiffs. Both the Plaintiffs and the defendants descended from one NWOMA, who begat EZEANORUE, Ezeanome had four sons – EZERIOHA the first son, was the founder of the Ndimbara Village -the defendants. The three other sons were the founders of NDIUHU-NA-OGBO Village, EZEMENAHA Village to which the plaintiffs belong and EZEEKWEMBA Village.

(b) The said EZERIOHA apart from being the first son of Ezeanorue was a very brave man and warrior so his father gave him that part of his land which was next to Amuche people who used to fight against Ezeanorue’s people. Ezerioha with his sons and followers constructed the trenches which are found in the defendants’ plan for defence purposes. That part of Ezeanorue’s land given to his first son Ezerioha is the land in dispute.

(c) No member of the defendants Village migrated from Nkume. There is no name known to the defendants as UMUDURUOLA or UFUDUROLO as the plaintiffs first averred in paragraph 7 of the Statement of Claim in this suit before they amended same. The plaintiffs also called it UFUDURUOLO in paragraph 6 of their Statement of Defence in HOR/47/78 this is hereby pleaded.

(d) The defendants inherited the land in dispute from their ancestor Ezerioha and established their homes on the land in dispute, cultivated Cassava, Yams, Coconuts, Pears, Cocoyams, Plantains, Indian Bamboo, Ugba, Kolanuts and harvest them without let or hindrance from time immemorial, until in 1966. Sometime in I966 one Ndukwu Amuzie a relation of the defendants sold an Achi tree in ‘Olohia Ndimbara’ to one Samuel Emegwa, and 5th plaintiff Anosike Osuagwu unsuccessfully sued Ndukwu Amuzie in NC/10/66 at the Customary Court Southern Isu, Orlu (Nnenasa) and lost. The Record of Proceedings (and judgment) was tendered in the High Court action HOR/47/75. The same is hereby pleaded and would be found in the Record of Appeal in SC/179/84 which is hereby pleaded.

Anosike Osuagwu (5th Defendant) and Onwuemeka Mgbudom are the relations. Again in or about May, 1975 the plaintiffs broke and entered Okohia Ndimbara without the permission of the Defendants and cut down some economic trees in that land which is inside the land in dispute. That action of the Plaintiffs was the cause of action in HOR/47/75. The defendants later understood that Ignatius Obiefule the incumbent Traditional Ruler of Eziama instigated the plaintiffs to trespass into ‘Okohia Ndimbara because the defendants Ndimbara Village withdrew her support from him as the Traditional Ruler of Eziama. So when the defendants sued the plaintiffs’ Ezemenaha Village in a representative capacity the plaintiffs filed this cross-action claiming the defendants’ Village, also in a representative action. The defendants hereby plead the Statements of Claim and Defence respectively in HOR/47/75. The same shall be found in the Record of Appeal in SC/179/84 – Linus Ukaonu and Ors. v. Ezeala Nnajiofo and Ors.”

(Italics mine)

The suit went on trial and evidence was led by both sides. In his judgment the learned trial Judge after a review of the evidence led by the parties set out the broad issues calling for his determination. These are:-

“1. The identity of the land in dispute.

2. Evidence of traditional history.
3. Acts of possession by the parties in respect of the land in dispute.
4. The relationship between the Okohia land in Suit No.HOR/47/75 and the land in the present case vis-a-vis the parties.
5. The issue of res judicata.
6. Have the plaintiffs proved their case to entitle them to the reliefs sought”

He proceeded to consider issues 1, 2, and 3 and found in favour of the appellants on those issues. He then considered issues 4 and 5 and found against the respondents. In the end he found for the appellants and gave judgment in their favour in terms of their claims.

Being dissatisfied with that judgment the respondents appealed to the Court of Appeal sitting at Enugu. That Court found that the plea of estoppel raised by the present respondents in their amended Statement of Defence ought to have been upheld by the learned trial Judge. It then allowed the appeal, set aside the judgment of the trial Court and dismissed the present appellants’ claims. It is against that judgment that the present appellants have appealed to this Court after obtaining the leave of this Court. Five grounds of Appeal set out in the Notice of Appeal are canvassed in this appeal. The five grounds, without their particulars read as follows:-

“Ground 1: Misdirection on Facts and Law:

The learned Justices of the Court of Appeal misdirected themselves on the facts and the law when they held that the parcel of land in dispute in HOR/68/75 is the same with that which was the subject matter of Suit No. HOR/47/75.

Ground 2: Misdirection of Law:

The Court of Appeal misdirected itself when it upheld the plea of estoppel per rem judicatiam in respect of the land in dispute in this case.

Ground 3: Error in Law and Facts:

The learned Justices of Appeal erred in law and on the facts when they held that:

(a) ‘in other words, apart from the land in dispute in HOR/47/75, the present appellants put in issue all the surrounding land which they claimed to be theirs but over which the present respondents were not disputing with them……….. ‘

(b) If the respondents were mindful of their claim to the surrounding area of land in dispute, their proper course was a Counter-Claim to such surrounding land putting in evidence a plan depicting the land in dispute and the extent of their whole land which they claimed in HOR/47/75. That they did not do unfortunately to their detriment ………

(c) the subject matter in this appeal, although not directly the subject matter upon which the Court in HOR/47/75 was actually required by the parties to form an opinion and produce a judgment……….

(d) Thus it is manifest that at the earliest stage of the proceedings in HOR/47/75 the parties clearly joined issues on; (1) the land in dispute (2) the settlement surrounding the land in dispute.’

Ground 4: Error in Law:

The learned Justices of Appeal erred in law in failing to consider at all or sufficiently the Brief of Argument of Plaintiffs/Respondents at the Lower Court and thereby erroneously allowed the appeal thus causing miscarriage of Justice and causing violence to the provisions of S.6(6) and S.33 of the 1979 Constitution of Nigeria.

Ground 5: Error in Law:

The Court of Appeal erred in law and fact having reversed the trial Judge’s decision which upheld the right of the appellant herein as to title and injunction in respect of the land in dispute as the grounds founding the learned trial Judge’s decision are neither wrong, perverse, nor against the weight of evidence.”

In accordance with the rules of this Court, the parties filed and exchanged their respective written briefs of argument. A Reply Brief was also filed on behalf of the appellants. Learned counsel for the appellants, in his brief, set out nine issues as calling for determination in this appeal. In my respectful view however, the only issue that I think calls for determination having regard to the judgment of the Court of Appeal appealed against is as to whether or not the plea of estoppel per rem judicatam and/or issue estoppel availed the respondents in this case.

It is not in dispute that the respondents had sued the appellants in Suit No.HOR/47/75 in respect of a piece of land much smaller than the land now in dispute. It is equally not in dispute that the present proceedings were commenced by the appellants against the respondents at about the same time that the other Suit was pending and the later Suit, that is HOR/68/75 was in respect of a larger area of land almost surrounding the land in dispute in HOR/47/75, the Writ in respect of which was taken out in May 1975. The earlier action terminated in favour of the present respondents and the trial of the later Suit was adjourned sine die pending the determination of the appeal against the judgment in the earlier Suit. The present appellants appealed to the Court of Appeal sitting in Enugu against the learned trial Judge’s judgment in the earlier suit and that appeal was dismissed. Their further appeal to the Supreme Court was equally dismissed. It was after the judgment of the Supreme Court that the Suit HOR/68/75 now on appeal to this Court came up for trial. The proceedings of the High Court and of the Court of Appeal in HOR/47/75 was tendered as Exhibit D at the hearing of the suit HOR/68/75 so also the plans tendered by both parties in the said case. The Supreme Court judgment in that case is reported as Ezeala Nnajifor & Ors. v. Linus Ukonu & Ors. (1986) 4 N.W.L.R. (Pt.36) 505.

I pause here a moment to comment on the course the two actions took in the High Court of Imo State. Having regard to the pleadings and the plans in the two cases, prudence, one would think, would have dictated that the two actions be consolidated and tried together rather than the course adopted by the trial High Court in trying the earlier case first and adjourning hearing of the later case sine die. Had the two cases been consolidated and tried together, the difficulties subsequently encountered in pursuing each case through the three tiers of courts would have been avoided and considerable costs saved.

In suit No. HOR/47/75 the case of the present respondents as plaintiffs was summarised by the learned trial Judge in that case in these words:-

“It is the plaintiffs’ case that the land which they called ‘OKOHIA NDIMBARA’ which is shown and verged pink in their survey plan No. PO/E.247/75 dated 20th July, 1975, tendered in evidence as Exh. A descended to them by inheritance from their ancestor Ezerioha. The plaintiffs averred that they and the defendants came from one ancestor called Nwoma who beget Ezerioha, (2) Ndiuhu-na-Ogwo; (3) Ezemelaha and (4) Ezekwemba in their order of seniority. The first son Ezerioha was the ancestor of the plaintiffs; while the defendants came from Ezemelaha the third son. The land in dispute was given to Ezerioha the plaintiffs’ ancestor by his father Ezeanoruo. Plaintiffs denied that the land belongs to the defendants.”

The present appellants were defendants in that case and their own case was summarised by the learned trial Judge in these words:-

“On the other hand, the defendants are claiming ownership of an area of land much larger than the land in dispute which is inhabited by the plaintiffs. The defendants called the larger area OHIA EZEMELAHA; while they called the land in dispute which is inside the larger area OHIA ACHIERE AGU. It is the defendants’ case that this Okohia Achiere Agu the land in dispute was named after their ancestor Achiere who reserved the forest for security so that when he entered the forest to change into leopard he would feel secure. It is part of the security that their great ancestor dug the trench (Nkoro) round the land in dispute. This Okohia Achiere Agu is verged pink in defendants’ plan N. E/GA.3215/75 tendered as Exh. ‘C’. Defendants admitted that both they and the plaintiffs have a common ancestor called Ezeanoruo who they said had five sons namely: Ezealagaji, Ezeanochie Ezemelaha, Ezekwemba and Ezerioha. Their own ancestor was Ezemelaha. It is defendants’ case that the entire large area where the plaintiffs have their home was the share of their ancestor Ezemelaha from his late father’s estate. That the trench (Nkoro) was the boundary separating their land from that of the plaintiffs. That the plaintiffs’ share of the land extends from the Nkoro boundary to the valley of Njaba where the plaintiffs made their dwelling houses. Defendants alleged that not all the plaintiffs are the descendants of Ezeanoruo. Defendants averred that because plaintiffs were dying of influenza hence they left their home at Njaba valley and migrated to the defendants’ Ezemelaha where they (plaintiffs) were given their present. living sites,”

(Italics mine).

The learned trial Judge in that case made some specific findings of facts which findings were affirmed by both the Court of Appeal and this Court. These findings are. in the learned Judge’s own words:-

“From the evidence of rival traditional histories, I am perfectly satisfied that the historical account given by the plaintiffs is more preferable and so I believe them that the common ancestor Ezeanoruo had four not five sons.

Similarly, I am satisfied on the facts that the land in dispute is called ‘Okohia Ndimbara’ not ‘Okohia Achiere Agu….On the other hand, I disbelieve the defendants whose account is full of inconsistencies, and concoction .

……. defendants have failed to establish by evidence that plaintiffs migrated from Nkume or Njaba valley to their present home .

…….. defendants have not convinced this Court that plaintiffs are living as their tenants on the land in dispute. I believe the plaintiffs that the trench (Nkoro) was dug as a defensive measure against inter village wars and not as a boundary mark or security for the purpose of enabling the defendants to change themselves into leopards.

I accept the evidence which is supported by Exhibit B that there were two previous actions over the land in dispute.

The story relating to arbitration and the oath taking is concocted and so I disbelieve it.

The defendants could not prove the allegation that only few of the plaintiffs are descendants of Ezeanoruo.

………. On the defendants’ admission that the plaintiffs’ houses are close to the trench which in turn is close to the forest, I hold therefore that section 45 Evidence Law should apply in favour of the plaintiffs that they own the forest in dispute .

…….. the claim to acts of possession and ownership by defendants is completely absurd .

………. no single act of possession and ownership was known to have been exercised by the defendants on the land.”

In the present action leading to this appeal, that is, HOR/68/75 which is between the same parties as in HOR/47/75 both sides relied on the traditional history each put across in HOR/47/75. Indeed reading the pleadings in the two actions the issues are clearly almost the same, what is different is that whereas in HOR/47/75the plaintiffs (now respondents) claimed a smaller area of land known to both sides as the forest area, in HOR/68/75 now on appeal before us the present appellants claim a larger area of land almost completely surrounding the forest area. Thus what was directly in issue in HOR/47/75 was the forest area and what is now directly in issue in the present proceedings is the larger are a surrounding that forest area. With the similarities in the facts in the two cases, can it be said that a plea of estoppel can succeed

Learned counsel for the appellants, Wali Esquire, both in his briefs and oral argument in Court, submitted that estoppel per rem judicatam does not apply on the facts of the case on hand in that the subject matter of the action HOR/47/75 was different to the subject matter of the suit HOR/68/75 now on appeal to this /Court. He argued that what was in dispute in HOR/47/75 was “Okohia Ndimbara”, a piece of land much smaller than “Ohia Emenaha” in dispute in the present proceedings. Learned counsel further argued that what was pronounced upon by the trial court in HOR/47/75 was Okohia Ndimbara and not the “uncertain pieces of land surrounding” the said Okohia Ndimbara. He argued in paragraphs 4: 3: 5 and 4: 3: 6 at pages 23 & 24 of his brief thus:-

“The Respondents herein, it is submitted did not specifically claim the land the subject of this suit in Suit No. HOR/47/75 (which was fought up to this Court) even though the Appellant herein put in issue the area of their land in the said Suit No. HOR/47/75 and this was clearly made out as such in their plan.

See Abang v. Effiom (1976) 1 S.C. 17 at 31.

The land in dispute in HOR{47nS which was litigated up to the Supreme Court was a thick bush or forest whereas the land in dispute in the present case is residential and farm land.”

Learned counsel equally argued that the findings of fact made by the trial Judge in HOR/47/75 regarding the subject matter of that suit “is not adversely affected by the findings of fact made by the learned trial Judge in respect of the subject matter in the present case which does not derogate therefrom.” He concluded his submission on this issue in paragraphs 4: 3: 8 and 4: 3: 9 at pages 27 – 28 of his main brief in these words:

“It is submitted with respect, that evidence was not taken from either side nor the purported findings of fact clear as to the certainty of the phrase ‘piece of land surrounding the land in dispute’ which was paraded from the High Court up to the Supreme Court. The need for certainty was stipulated in Isiakn Dosunmu v. B.A. Joto (1987) 9 – 10 SC. 68 or (1987) 4 NWLR (Pt.65) P.297 at 307. It is further submitted that the issue of surrounding land never formed part of the issue for determination in Suit No. HOR/47/75.

It is submitted, with due respect, that the purported findings of Johnson J. Court of Appeal and the Supreme Court that ‘the pieces of land surrounding the land in dispute’ means and connotes the same parcel of land in dispute in this case/suit on appeal herein to that extent, goes to no issue and consequently perverse since same was not supported by pleadings nor evidence in Suit No. HOR/47/75.

See Ogunola v. Eiyekole (supra).

The Court of Appeal per Kolawole J.C.A, right from the beginning of his judgment fell into an error and was under the wrong impression rhat the land in dispute in this case is the same as the land the subject matter of Suit No.HOR/47/75. This apparent misconception is aptly recognised at page 261 line 14 of the Record when they held:

‘In an earlier Suit No. HOR/47/75, the appellants successfully sued the respondents for title, trespass and injunction in respect of the land in dispute………….

The Learned Justice of Appeal, it is submitted erred in the appraisal of the probative value of the feature of the two cases.”

Learned counsel submitted that “surrounding lands” means no more than “the surrounding settlements and farm lands abutting Okohia land”. Learned counsel further submitted that the decision in HOR/47/75 did not finally decide the issue of ownership of the land in dispute in the present proceedings. In his reply brief, learned counsel argued thus:-

“It is respectfully submitted that the reference of this Honourable Court to ‘surrounding lands’ in Nnajifor v. Ukonu (supra) was only a collateral pronouncement, a step in the reasoning process and was not intended by this Honourable Court to confer title to the infinitely ‘surrounding lands’ in the Respondents. In which even the Learned Justices of the Court of Appeal erred in upholding the contention of the Respondents that the Appellants were estnpped forever from laying claim to their own lands abutting that earlier adjudicated upon.”

On traditional histories of both parties, learned counsel submitted that the issue what land was given to the appellants’ ancestor in terms of location, boundary and certainty thereof was not determined in HOR/47/75. Learned counsel in his reply brief, further argued that issue estoppel did not arise in the present proceedings.

For the respondents, learned counsel Dr. Odje, SAN, both in his written brief and oral argument submitted that the appellants “are forever estopped from re-litigating the ownership of the land put in dispute in this case, having regard to the three concurrent judgments” of the High Court of Imo State, Court of Appeal and Supreme Court in HOR/47/75. It is learned Senior Advocate’s contention that the appellants and respondents herein put forward in that earlier case not only the rival traditional histories of the parties as well as their acts of ownership and possession relating not only to the land then in dispute but also the ownership and possession of the surrounding areas of land put in dispute in that case and in the present proceedings. Dr. Odje submitted that the rival versions of traditional history put forward by the parties in the earlier case (HOR/47/75) and decided upon in that case are again being contested in the present case. He contended that the findings of fact regarding ownership and possession made in HOR/47/75 and decided in respondents’ favour are being contested all over again in the present proceedings. Learned Senior Advocate submitted that the land in d(spute in HOR/47/75 included the surrounding areas of land around the forest area and both were declared to be the property of the respondents. He then submitted that the land now in dispute is the same as the land in dispute in HOR/47/75. Learned Senior Advocate concluding his submission on the issue of estoppel said at paragraph 6 on pages 13 to 15 of his brief thus:-

“From the ‘facts and circumstances of this case, particularly the specific findings of fact made by the learned trial Judge in his judgment is Suit No.HOR/47/75, duly affirmed by the Court of Appeal and this Honourable Court as highlighted in the foregoing argument, it is submitted that the Appellants are estopped per rem judicatam see: S. 53, Evidence Act Cap. 62, Laws of the Federation 1958; Nwaneri & 2 Ors. v. Oriuwa & 5 Ors. (1959) 4 F.S.C. 132 at P.137; (1959) SCNLR 316 at P.322. Oduka & Ors. v. Kasumu & Ors. (1967) 1 All NLR 293 at p, 300; (1968) NMLR 28 at P. 33, from relitigating in this case, the subject matter, facts and issues contested by the parties and adjudicated in favour of the Respondents by three Courts of competent jurisdiction.

No doubt, this was why the Court of Appeal rightly held that the learned trial Judge ought to have stopped the Appellants from pursuing their absurd claim in the trial Court.

Alternatively, the plea of issue estoppel is a complete defence to the claim of the Appellants in this case in that the conditions or constituents for successfully invoking such plea are present in the case in hand, namely:

(a) The traditional histories, acts of ownership and possession which were put forward, contested and determined in favour of the respondents in the previous cases (Suit No. HOR/47/75, FCA/E/141/81 (Exhibit ‘C’) and SC 179/84 (Exhibit ‘D’) reported in (1986) 4 NWLR (Pt. 36) 505 have again been put forward for contest and determination in this case.

(b) The decisions in Suit No.HOR/47/75, FCA/E/141/81 and SC.179/84 aforesaid are final judicial decisions given by courts of competent jurisdiction, including this Honourable Court, the Court of last resort of the land.

(c) The parties in these cases are the same, being the Appellants known as Ezemelaha or Ezemenaha of the one part, and the Respondents called the Ezerioha of the other part.”

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 or 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 partes. 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 J.S.C distinguished the two types of estoppel by record inter partes in Fadiora v. Ghadebo (1978) 3 SC 219 228-229 in these words:

“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 504. 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 re-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 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 pre-conditions to a valid plea of estoppel inter partes or per rem judicatam must apply, that, (1) the same question must he for decision in both proceedings (which means that the question fur 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).”

I shall concern myself at this stage with cause of action estoppel generally referred to as res judicata or estoppel per rem judicatam. For the cause of action estoppel to succeed, it must be shown that the parties, the cause of action and the res (subject-matter) are the same in the earlier as well as the later proceedings in which the plea is raised.

There is no doubt – and this is not in dispute – that the parties and the cause of action in the present proceedings are the same as in the earlier proceedings in HOR/47/5. What the parties seem not to agree upon is as to whether the res (subject matter) in the present proceedings is the same as the res in HOR/47/75. Both from the pleadings and the plan tendered by the present respondents in HOR/47/75, there can be no doubt that the res directly in issue in that case and on which a declaration was made is the forest area edged green and yellow in the appellants’ plan Exhibit A in the present proceedings and edged yellow in the respondents’ plan Exhibit B. The subject matter in the present proceedings is the larger area virtually surrounding that forest area and on which there are buildings and farms. True enough the appellants in their plan tendered for the purpose of the proceedings in HOR/47/75 and therein marked Exhibit C showed not only the land then being claimed by the respondents as plaintiffs but also a larger area which they (appellants) now lay claims to. They claimed in that case that both the forest area and the larger area belonged to them by inheritance from their ancestors. It is learned Senior Advocate’s contention that having put that larger area in issue in HOR/47/75 the res in that case was the entire area, that is, both the forest area and the res in this case is the same as the res in that case and that therefore the plea or rem judicata must succeed. The lower Court accepted this view. For Kolawole J.C.A in his lead judgment at pages 274-275 of the record observed:-

“If I may recapitulate therefore, I am satisfied from the pleading and evidence before the lower court that the subject matter in this appeal, although not directly the subject matter upon which the court in HOR/47/75 was actually required by the parties to form an opinion and pronounce a judgment, properly belonged to the subject of litigation in the earlier suit.”

To the extent that this view was accepted by the lower Court and with profound respect to that Court and the learned Senior Advocate I must say that I do not share that view. In the judgments of the trial Court and the appellate courts in HOR/47/75 including this Court, reference is made to “surrounding areas”.

The term was never defined with certainty in any of the judgments nor, was reference made to the appellants’ plan Exhibit C as denoting the extent of the “surrounding area”.

I am not unaware that in paragraph 5 of their amended statement of defence, the respondents pleaded that:

……… The present action is a cross-action to the said HOR/47/75. and they are both representative actions. The land surrounding the ‘Okohia Ndimbara’ which was found to be land of the present Defendants is the land now in dispute. The Defendants will contend that the plaintiffs are estopped from re-opening that issue which was canvassed and determined in HOR/47/75.”

(Italics mine)

No evidence was however led at the trial of the present action in proof of the allegation italicized by me above. The only witness for the defence at the trial, Edmund Ubaka testified thus:-

“Plaintiffs sued us because they trespassed into our land called ALA NDIMBARA situate at Ndi Mbara Village. Okohia Ndimbara is part of the land in dispute. I know it. Okohia Ndimbora land had been a subject matter of dispute between the parties in this case. We sued the defendants in 1975 through Linus Ukonu & 2 Ors., representing Ndimbara against Ezeala Nnajiofor and others from Ezemenaha of the Plaintiffs Suit No. HOR/47/75. The action was filed in the High Court but heard at Nkwerre. We won the case at the High Court. The present plaintiffs appeal to Appeal Court Enugu and lost. They appeal to the Supreme Court Lagos and we still won the case against the plaintiffs. We made survey plan of the land in dispute. I am one of those who showed the features to the surveyor. This is our own plan – Exhibit ‘B’ ‘identified.” (Italics mine)

Cross-examined, the witness deposed:

“Exhibit ‘C’ and Exhibit ‘D’ relate to the land called Okohia. The land in dispute is called by the plaintiff Ohia Ezemenoha but we call it Ohia Ndimbara.” (Italics mine)

Exhibit C is the record of appeal from the Court of Appeal to the Supreme Court in HOR/47/75 while Exhibit D is the certified true copy of the Supreme Court judgment in that case. It is clear from the above evidence that the respondents knew all along that the land now in dispute was not directly put in issue in their own earlier action.

Kolawole, J.C.A. in his judgment said at page 271 of the record:-

“Be it noted that the issue of the surrounding land referred to in the paragraph 5 above was the issue upon which the three courts pronounced in the earlier suit which ended in the Supreme Court where Obaseki J.S.C. emphasised thus, which I reproduce again at the expense of repetition;-

‘On the issue of possession, the learned trial Judge found that the plaintiffs/respondents have been exercising acts of ownership and possession in respect of the land in dispute AS WELL AS THE SURROUNDING areas of land. He found the claim to acts of possession and ownership by the defendants/appellants completely absurd. …………

The surrounding land in HOR/47/75 is the land now in dispute. That land is the land over which the three courts found the present appellants to have exercised acts of ownership and possession as well as over the land in dispute.”

There is no scintilla of evidence to support this conclusion. The plan tendered by the respondents in HOR/47/75 did not show with certainty the extent of the, area they referred to as “surrounding lands.”

Again, at pages 282-283 of the record, the learned Justice of the Court of Appeal said:

“There can be no doubt that the parties, the cause of action and the issues in the earlier suit and the present suit are the same. The misconception of learned counsel for the respondents is manifest by the contention in the Respondents’ brief. After quoting what the Supreme Court said which led the Court to confirm that the appellants are owners in possession of the surrounding land at page 14of Exhibit ‘D’ that:-

“…….. Further, the evidence of the 3rd plaintiff and 4th defendant show that the plaintiffs were in possession of the surrounding area although 3rd and 4th defendants regarded their possession as that of customary tenants.’

Learned counsel therefore contended-

‘The crucial question here is whether, by the findings of fact by the trial Judge in HOR/47/75 confirmed by both the Court of Appeal and the Supreme Court title or absolute ownership of the land in dispute in the present case was declared to be in the appellants.’

The learned Judge as well as counsel for the respondents have completely over looked the fact that in the first action both parties joined issues over the land in dispute verged pink in their respective plans exhibits. A and C and the surrounding settlements which the present respondents depicted as green in Exhibit C and which land they claimed is much bigger than the land then in dispute. In my view, once the issue of the land surrounding the land in dispute was distinctly raised and decided in the first action in which both the appellants and the respondents were represented, it is unjust and unreasonable for the learned trial Judge to permit the same to be litigated between the same parties under the pre that –

‘In the first place the land which was the subject-matter of the earlier action is called “OKOHIA” Ndimbara by the present defendants and the present plaintiffs called it IKOHIA ACHIERE AGU. The land in the present case is called “Ohia Ezemenaha” by the plaintiffs and the defendants call it “Ohia Ndimbara.’

The truth of course, as I have earlier pointed out, is that the learned trial Judge overlooked the fact that both parties put in issue settlements surrounding the land in dispute in the earlier suit which the present respondents called ‘Ohia Ezemenaha’ and verged green on their plan Exhibit ‘C’ which I have earlier referred to. The rule as Lord Denning, M.R. said, is that once the issue of the ‘Ohia Ezemenaha’ land which surrounds the land in dispute 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.”

With profound respect to the learned Judge, I am of the view that as there is nothing in the judgments in HOR/47/75 to equate “surrounding lands” mentioned therein to the area edged red in Exhibit A in the present proceedings, which is the area the appellants have now put in issue, it would not be correct to conclude that “‘the issues in the earlier suit and the present suit are the same.” In any event the area now claimed by the appellants in the present proceedings was never directly in issue in the earlier case. Nor can it be said that everything that is in controversy in the present proceedings as the foundation of the appellants, claim for relief was also in controversy in HOR/47/75. I am of the firm view, and I so hold, that the res in the present proceedings is not the same as the res in the earlier case HOR/47/75 and with this conclusion I must hold that the plea of res judicata in the sense of cause of action estoppel would not avail the respondents in the present proceedings. The court below was therefore in error to hold that it did.

Having said as much, I must however, point out that no where in the respondents’ pleadings, that is, the amended statement of defence did they plead or rely on cause of action estoppel. Rather, what they pleaded was issue estoppel see paragraphs 4 and 5 of the amended statement of defence. I must also say that the Court below rested its decision not only on res judicata but also on issue estoppel based on the findings in the earlier case – HOR/47/75. Kolawole J.C.A in his judgment after quoting the dictum of Idigbe J.S.C in Fadiora v. Gbadebo (supra) to which reference has been made earlier in this judgment, said at page 284 of the record:

“Applying the above principles to the present appeal, I do not entertain the slightest doubt that all the preconditions to a valid plea of estoppel inter partes apply namely (1) the question of ownership and possession of the area verged Red in Exhibit A in the current proceedings was decided in the earlier proceedings by reference to the area verged green in Exhibit C in HOR/47/75 (2) the decision relied upon in the earlier suit to support the plea of issue estoppel was final, and (3) the parties in the earlier suit are the same as the parties in the current proceedings.”

The appellants’ case was predicated on their traditional history that they inherited the land they now claim from their ancestor Ezemanaha and that it was the share of Ezemekaha from his father’s estate. They pleaded their version of the traditional history in paragraph 7 of their further amended statement of claim quoted earlier in this judgment. The traditional history relied on in this case is the same as the traditional history put forward by them in. HOR/47/75. In their statement of defence in that case, the appellants pleaded thus:-

“2. The defendants deny paragraph 3 and 4 of the Statement of Claim and aver that the land in dispute is known as and called ‘OKEHIA ACHIERE AGU’ within the larger area of land of the defendants known as and called ‘OHlA, EZEMELAHA’. The said land is particularly described in plan No. E/GA 3215/75 filed with this Defence.

3. The land Okehia which the plaintiffs are claiming is verged pink in the defendants plan. This land in dispute is bounded on three sides by the land of the defendants. Thus:- ,

On the North by the land of the defendants.

On the South by the land of the plaintiffs.

On the East by the land of the defendants.

On the West by the land of the defendants.

6. The defendants deny- paragraph 6 of the statement of claim and aver that both plaintiffs and defendants descended from Ezeanoruo, Ezeanoruo had five sons namely:-

Ezealaagaji, Ezeanochie both known as Ndiuhu now

Ezeanaha, Ezekwemba, Ezerioha part of Ndi Mbara.

All the Ndi Mbara people are not all descendants of Ezeanoruo. Ndi Mbara is a geographic or place name rather than ancestral name. For in Ndi Mbara there are descendants of Ezeorioha. Ezealanwokeotuwe and Ufuduruolo from where the 1st and 4th plaintiffs come. They migrated from Nkume. Therefore it is highly unhistorical to talk about Ndi Mbara inheriting any land from the great ancestor Ezeanoruo.

7. The defendants deny paragraph 7 of the Statement of Claim and shall put the plaintiffs to strictest proof of all the allegations therein contained. The defendants further aver that on the death of their great ancestor the children shared all his lands amongst themselves. The descendants of the plaintiffs and the defendants have permanent dividing lines between their lands. The ‘Nkoro’ boundary separates the land of the plaintiffs and that of the defendants. The plaintiffs share of land extends from the Nioro boundary, shown on the Plan South of the land in dispute to the valley of Njaba. It was in this valley that the plaintiffs made their dwelling home from time immemorial. But during the last influenza they were dying in quick succession that they decided to come up from Njaba valley. Their old dwelling home can be seen there now. Some of them still live on their own Ezeorioha land while others came to Ezemenaha people for grant of living sites on Ohia Ezemenaha. The people of Ndi Mbara who were granted land for living purposes are shown in the plan filed with this statement of defence and shall be founded upon particularly receipt for that granted to Joseph Oguike shall be tendered in evidence. The land in dispute is within the larger area of Ezemanaha’s land and being his share from his father’s land. The defendants still harvest coconut they have in the area they granted to the plaintiffs for living purposes.
8. The defendants deny paragraph 8 of the statement of Claim and shall put the plaintiffs to strictest proof of same. The defendants aver that the forest land is not farmed nor do people dwell thereon.
9. The defendants have been exercising maximum acts of ownership over the said land by cutting timber tress thereon, cutting ropes thereon, offering sacrifices to Ogwugwu juju and throwing the share of the spirits therein, cutting down trees and hewing them as wood for sale, using the forest for different mystic actions. The forest has been sacred place for the defendants. During the last civil war the Biafran Government asked people to comb their forest it was the defendants who combed the forest as the plaintiffs dared not enter therein.
10. The defendants are the owners in possession of the said land in dispute from time immemorial which has descended to them from their great ancestor Ezemenaha. The land in dispute is a part of Ezemenaha land. It is a reserved forest because one of the descendants of Ezemenaha stock by name Achiere reserved this for mysticism. (lshi Agu). He was most proficient in this and since then the forest goes by his name as ‘Okohia Achiere.’

From time immemorial generation after generation of the defendants had used the land in dispute until it comes to the present defendants without any let or hindrance from the plaintiffs or anybody at all. Thus after Agu and his relations had enjoyed it in their time it passed on to Achiere and his relations and after Achiere and his relations it passed on to Onsuaso and his relations then to Okoroafor and his relations and to Mgbudam and his relations after this last generation the land passed to the present defendants who now own it.

The same is true of the respondents. They too rely in the present proceedings on the traditional history and acts of possession as put forward by them in the earlier case, HOR/47/75. The learned trial Judge in HOR/47/75 rejected the appellants’ version of the traditional history and acts of possession and accepted that of the respondents. His findings of fact were affirmed both by the Court of Appeal and this Court. These findings are binding on the appellants and they are estopped from re-litigating those issues again – see Aro v. Fabolude (1983) 2 SC.75 (1983) 1 SCNLR 58 in Fidelitas Shipping Co. Ltd. v. V/O Exportchleb (1966) 2 QB 630, 640 Lord Denning M.R. set out the law clearly when he said:

“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 (l964) P.181. 198; (1964) 2 W.L.R.371, 385; (1964) C. A;; E.R.341, 352, C.A. 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. (1844) 13 M. & W. 494, 504. 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. (1909) A.C. 615 per Lord Macnaghten Ibid, 623. And within one issue, there may be several points available which go to aid one party or the other in his efforts to secure at 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:”

Diplock, L.J. at pages 642-643 of the Report observed:

“In the case of litigation the fact that a suit may involve a number of different issues is recognised 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.

This is but an example of a specific application of the general rule of public policy, nemo debet bis vexari pro una et eadem causa. The determination of the issue between the parties gives rise to what I ventured to call in Thoday v. Thoday (1964) P.181, 198 an ‘issue estoppel.’ It opeates in subsequent suits between the same parties in which the same issue arises. A fortiori it operates in any subsequent proceedings in the same suit in which the issue has been determined. The principle was expressed as long ago as 1843 in the words of Wigram V.C. in Henderson v. Henderson (1843) 3 Hare 100, 114 which were expressly approved by the Judicial Committee of the Privy Council in Hoystead v. Commissioner of Taxation (1926) A.C. 155,170. I would not seek to better them:

‘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 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 to 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 case has been cited with approval by this Court in a number of cases – see, for example: Lawal v. Dawodu & Anor. (1972) 1 All NLR (Pt.2) 270, 282; Aro v. Fabolude (supra) at pp. 101-103. The appellants cannot re-open the issues decided in those findings merely on the ground that they can now produce better evidence see: Ojo v. Abadie. (1955) 15 WACA 54. It was wrong of the learned trial Judge to have allowed them to adduce evidence on a traditional history which had in an earlier suit been rejected by Courts of competent jurisdiction.

I have set out earlier in this judgment the essential findings of fact made by the learned trial Judge in HOR/47/75 and affirmed on appeal by the Court of Appeal and this Court. Their traditional history having been rejected in the earlier suit (HOR/47/75), the appellants cannot now set it up in proof of their ownership of the land now in dispute. The basis of their claim having been thrown overboard in HOR/47/75, they have no longer any leg on which to stand in proof of their present claims. Their claims were rightly dismissed by the Court of Appeal on the principle of issue estoppel.

Before I conclude this judgment I need to touch briefly on the complaint of lack of fair hearing raised by the appellants. The basis of this complaint is laid on the alleged failure of the court below to consider the respondents’ brief in that Court in coming to its decision. It is not disputed that briefs were filed and exchanged as required by the rules of that court. The appellants however complained that whereas the issues as formulated by the appellants before the court in their written brief were set out in the lead judgment of Kolawole J.C.A, no mention was made of the issues set out in the respondents’ brief (that is the brief of the present appellants). It is further alleged that consideration was not given to their counsel’s submission before the court below arrived at its decision. It is then submitted that there has been a breach of the rules of fair hearing as enshirned in section 6(6) and 33 of the Constitution.

Dr. Odje, SAN for the respondents, submitted that it was incorrect to say that the lower Court did not consider or consider adequately the issues or case argued on behalf of the appellants who were respondents in that Court. He referred to pages of the record to support his submission. Learned Senior Advocate referred us to Plateau Publishing Co. Ltd. & 2 Ors. v. Chief Chuks Adolphy (l986) 4 NWLR (Pt. 34) 205, in urging us to reject the complaint.

I find no substance in the appellants’ complaint. It is not in dispute that both parties filed and exchanged their respective brief of argument in the court below and learned counsel for both sides addressed the court. True enough, Kolawole J.C.A in his lead judgment in the Court below set out the three issues formulated in the brief of the appellants in that Court but did not set out the seven issues formulated in the respondents’ brief. I cannot find this to amount to a denial of fair hearing in the proceedings in the court below bearing in mind that the seven issues raised in the brief of the then respondents are verbose variants of the three issues set out in the brief of the then appellants and the three issues were the main issues calling for determination in the appeal having regard to the judgment of the trial High Court and the Grounds of appeal. It cannot be seriously said that in the consideration of these three issues the court below did not give adequate treatment to the case of each party as contained in their pleadings and evidence.

At page 265 of the record Kolawole J.C.A reproduced the case for the respondents before the Court of Appeal as contained in the Respondents’ brief. At pages 269-270 he quoted paragraphs of the further amended Statement of Claim relevant to the issue of the plea of resjudicata being considered by him. At page 277 he again summarised the respondents’ brief. On pages 278-280 copious references were made to the submissions in the respondents’ brief. In the light of all these, it is rather unfair to accuse the Court of Appeal of not according the respondents before it (and now appellants before us) of fair hearing. I find no substance in the appellant’s complaint of lack of fair hearing. I can only end this part of my judgment by referring to the words of Uwais, J.S.C in Plateau Publishing Co. Ltd. & 2 Ors. v. Chief Chuks Adolphy (supra) which I find apt wherein at page 227 of the report he said:

“On the second point that the Court of Appeal failed to appraise the appellants’ argument on section 12 (2) of the Copyright Act, 1970, what is important is not merely the appraisal of counsel’s argument or submission but the resolution of the point raised by the argument or submission. If counsel speaks trash or his argument makes no sense, the court is not under any obligation to spend even one moment appraising what is nonsensical or unintelligible. The appellants’ contention on section 12 (2) were contained in ground 6 before the court below. The argument of appellants’ counsel was fully considered by the Court of Appeal and it was on that basis that it disallowed the additional damages of N10,000.00 awarded by the trial court to the respondent. I am satisfied that adequate consideration had been given to the appellants’ complaint by the Court of Appeal. Consequently, the appellants had fair bearing before the lower court and there is nothing whatsoever to show that their right under section 33 (1) of the Constitution had been impinged.”

In conclusion, this appeal fails and it is hereby dismissed. The judgment of the court below dismissing appellants’ claims in the trial High Court is affirmed. I award N 1,000.00 costs of this appeal to the respondents.A. G. KARIBI-WHYTE, J.S.C.: I have read the judgment of my learned brother Ogundare, J.S.C. in this appeal. I agree with his reasoning and conclusion dismissing the appeal. I also hereby dismiss the appeal.

I will however, deal with the only issue of estoppel raised in the nine grounds of appeal filed by the appellants. My learned brother Ogundare, J.S.C has dealt with the facts of this case in considerable detail. I do not wish to repeat them. It is only necessary to refer to the facts leading to my consideration of the question of estoppel raised.

The principal issue to be considered in this appeal is whether or not the plea of estoppel per rem judicalam and or issue estoppel was available to the respondents in this case. Respondents, as plaintiffs, had sued appellants, in suit No. HOR/47/75 in respect of a piece of land smaller than the land in dispute in the present appeal. At about the same time in May, 1975, appellants had commenced the present proceedings against the respondents in HOR/68/75 claiming a larger piece of land almost surrounding the land in dispute in HOR/47/75. Respondents, who were plaintiffs in Suit No., HOR/47/75 were given judgment in respect of their claim, and the Suit HOR/68/75 was adjourned sine die, pending the determination of the appeal against the decision in Suit No. HOR/47/75. The appeals against the judgment to the Court of Appeal, and further to this Court were dismissed. After the dismissal of the appeal against the decision in Suit No. HOR/47/75 in this Court, appellant applied for relisting and Suit No. HOR/47/75 was relisted for trial in the High Court. The proceedings of the High Court and the appeal to the Court of Appeal in HOR/47/75 and the plans filed by the parties were tendered as Exhibit ‘D’ at the hearing of Suit No. HOR/68/75. This case was reported as Ezeala Nnajiofor & Ors. v. Linus Ukonu & Ors. (1988) 4 NWLR. (Pt.36) 505.

It seems clear on reading the pleadings in the two cases that the issues are almost the same the parties in the two suits are the same, the difference lies in the fact that the area claimed in HOR/47/75 is smaller than the area claimed in HOR/68/75. What was directly in issue in HOR/47/75 is the forest area. What was directly in issue in HOR/68/75 is the larger area surrounding the forest area. Respondents have submitted that appellants are estopped from litigating the issues decided in HOR/47/75. Appellants on their part, have argued that estoppel per rem judicatam did not apply to the facts of this case.

Appellants’ contention both in the brief of argument and the oral submission of learned counsel before us was that the subject matter of the action in HOR/47/75 was different from that in HOR/68/75 now before us. It was submitted that the dispute land in HOR/47/75, namely Okohia Ndimbara was smaller than the Ohia Ezemanaha in disputed in HOR/68nS. It was further argued that the judgment in HOR/47/75 was in respect of “Okohia Ndimbara.” It did not include the “uncertain pieces of land” surrounding the said Okohia Ndimbara. Learned Counsel relying on Abang v. Effiom (1976) 1 S.C. 17 argued that although appellant put in issue the area of their land in the said Suit No. HOR/47nS, the respondent did not in Suit No. HOR/47/75 specifically claim the land subject matter of the Suit No.HOR/68/75. Learned counsel referred to the differences in the character of the two pieces of land. The land in dispute in HOR/47/75 is a thick bush or forest. The land in dispute in HOR/68/75 is residential and farm land.

Learned counsel submitted that the findings of fact made by the trial Judge in HOR/47/75 regarding the subject matter of the action is not adversely affected by the finding of fact made in the present case, i.e. HOR/68/75, and does not derogate therefrom. It was submitted that the surrounding land was not an issue for determination in HOR/47/75.

Learned counsel attacked the judgment of Johnson, J. and of Kolawole, J.C.A. for holding that the land in disputed in Suit No. HOR/68/75 is the same as in Suit No. HOR/47/75 did not finally decide the issue of ownership of the land in dispute in HOR/68/75.

Dr. Odje SAN learned counsel to the Respondents in his reply submitted that appellants were forever estopped from relitigating the ownership of the land put in dispute in this case in view of the concurrent judgments. It was his contention that not only the forest area but also the ownership and possession of the surrounding areas of the land in dispute in that case and in the present proceedings were in issue; and were decided in favour of respondents.

Learned Senior counsel submitted that rival versions of traditional history put forward by the parties in Suit No. HOR/47/75, and decided upon in the case are again being contested in the instant case. Similarly contested are the findings of fact regarding ownership and possession made in Suit No. HOR/47/75 and decided in respondents’ favour.

Learned counsel cited and relied on Section 53 of the Evidence Act, and Nwaneri & Ors. v. Oriuwa & Ors. (1959) 4 FSC 132 at p. 137 (1959) SCNLR 316, Oduka & Ors. v. Kasunmu & Ors. (1967) NMLR 28 (1967) All NLR 293.

As an alternative submission, Dr. Odje relied on the plea of issue estoppel as a complete defence to the claim of the appellants. This was founded on the grounds that:

(a) The traditional histories, acts of ownership and possession which were put forward, contested and determined in favour of the respondents in Suit No. HOR/47/75, in the High Court in FCA/E/ 141/81, in the Court of Appeal, and in SC.179/84 reported in (1986) 4 NWLR, (Pt. 36) 505, are being relitigated in the present action.

(b) The decisions in the Courts referred to are final judicial decisions of competent jurisdiction.

(c) The parties are the same in all the cases.

It is clear from the submissions of learned counsel, that the issue before the Court can be determined by answering the question whether the matter is res judicata, or whether the appellant is estopped in respect of specific issues in the matter already decided.

It has always been the law, and citations of judicial decisions are otiose, that where a court of competent jurisdiction has settled, by a final decision, the matters in dispute between the parties to a litigation, or an issue in the litigation, neither party or their privies may relitigate the matter or issue in a fresh action, the matter is said to be res judicata. The estoppel created is one by record inter partes. These are two of the several estoppels known to the law. The former is known as cause of action estoppel, while the latter is known as issue estoppel. Both kinds of estoppel could be relied upon by the defendant as the facts dictate. See Fadiora v. Gbadebo (1978) 3 SC. 219, 228-229.

For a party to successfully invoke res judicata or the cause of action estoppel, namely estoppel per rem judicatam, it must be shown that the parties, the cause of action and the res (subject matter) are the same in the earlier as well as the case before the Court in which the plea is raised. A careful examination of the case discloses that the parties and the cause of action in the two cases are the same. The only area of disagreement is as to whether the res in Suit No. HOR/68/75 is the same as that in HOR/47/75. It is obvious from the pleadings and the plan tendered in the proceedings that the res directly in issue in HOR/47/75,and in respect of which the declaration was made is the forest area edged green and yellow in the appellants plan Exhibit A, in the present proceedings and edged yellow in the respondents’ plan Exhibit B. In the present proceedings, Suit No. HOR/68/75, the subject matter is the larger area almost surrounding the forest area and on which there are buildings and farms.

In Suit No. HOR/47/75, appellants tendered a plan Exhibit C, which showed not only the land claimed by the respondents but also a larger area which they, the appellants claimed. It was their claim that both the forest area and the larger area belonged to them by inheritance from their ancestors.

Learned counsel, Dr. Odje, SAN contended that having put that larger area in issue in Suit No. HOR/47/75, the res in that case was the entire area, that is, both the forest area and the larger area surrounding it. Accordingly, the res in the instant case is the same as the res in that case and therefore the plea of res judicata must succeed. The Court below accepted this view.

I am afraid, this view is not supported by the evidence. In all the judgments of the Courts in Suit No. HOR/47/75, including the Court below and this Court, reference was made to “surrounding area”, without the phrase being defined. Indeed no reference was made to Exhibit C to denote the extent of the “surrounding area.”

In the instant case the respondents in paragraph 5 of their amended statement of defence, pleaded as follows:-

“the present action is a cross-action to the said HOR47/75 and they are both representative actions. The land surrounding the ‘Okohia Ndiabara’ which was found to be the land of the present Defendants is the land now in dispute. The Defendants will contend that the plaintiffs are estopped from reopening that issue which was canvassed and determined in HOR/47/75.”

Defendants did not lead evidence in support of this pleading. In the evidence before the trial Court defendants referred to the history of the case which they won even in this Court.

The evidence was revealing that the land now in dispute was not directly in issue in suit No. HOR/47/75.

But in the Court below, Kolawole, J.C.A. after referring to paragraph 5 of the amended statement of defence, stated that the surrounding land referred to in paragraph 5 above was the issue upon which the three Courts pronounced in the earlier Suit which ended in the Supreme Court where Obaseki, J.S.C, emphasized thus, which I reproduce again at the expense of repetition:

“On the issue of possession, the learned trial Judge found that the plaintiffs/respondents have been exercising acts of ownership and possession in respect of the land in dispute AS WELL AS THE SURROUNDING AREAS of land. He found the claim to acts of possession and ownership by the defendants/appellants completely absurd ……..”

The surrounding land in HOR/47/75 is the land now in dispute. The land is the land over which the three Courts found the present appellants to have exercised acts of ownership and possession as well as over the land in dispute. There is no evidence in support of this conclusion. For instance the plan tendered by respondents in Suit No. HOR/47/75 did not show unarguably the area referred to as the “surrounding lands.” In the circumstances it will not be accurate to say that the issues in the earlier suit and the present are the same.

It is clear that the area now claimed by appellants in the present proceedings was never directly in issue in the earlier case. It can therefore be said that the res in the present proceedings is not the same as the res in suit No. HOR/47/75. Accordingly the plea of res judicata as a cause of action estoppel would not be available to the respondent in the present proceedings. The Court below was clearly in error therefore to hold that it did.

It is also important to observe that respondent did not anywhere in their pleading raise the defence of cause of action estoppel. Rather paragraphs 4 and 5 of the amended statement of defence was in respect of issue estoppel. It is also fair to observe that the Court below did not rest its decision only on cause of action estoppel. It based its decision also on the findings in Suit No. HOR/47(75. that is on issue estoppel. For instance, Kolawole J.C.A, referring to and relying on Fadiora v. Gbadebo (supra), stated at P.284 as follows:

“I do not entertain the slightest doubt that all the preconditions to a valid plea of estoppel inter partes apply. namely (1) the question of ownership and possessions of the area verged Red in Exhibit A in the current proceedings was decided in the earlier proceeding by reference to the area verged green in Exhibit C in HOR/47/75 (2) the decision relied upon in earlier suit to support the plea of issue estoppel was final (3) the parties in the earlier situate the same as the parties in the current proceeding.”

It is helpful to compare the position of appellants in the instant case and their pleadings in Suit No. HOR/47/75. Their case was built principally around the traditional history that they inherited the land in dispute from their ancestor Ezemanaha, and it was the share of Ezemanaha from his father’s estate. They pleaded this version of their traditional history in paragraph 7 of their further amended statement of claim. This traditional history is the same as that relied upon in paragraphs 2, 3, 6, 7, 8, 9, 10 of the statement of defence in Suit No., HOR/47/75.

Similarly respondents rely in the present proceedings on the traditional history and acts of possession as put forward by them in Suit No. HOR/47/75. In Suit No. HOR/47/75 the learned trial Judge rejected appellants’ version of the traditional history and acts of possession and accepted the version of the respondents. His findings of fact were affirmed by both the Court of Appeal and in this Court. These concurrent findings of fact, having not been shown to be perverse will be accepted in this Court – See Motunwase v. Sorungbe (1988) 5 NWLR (Pt.92) 90. They are binding on the appellants who are therefore estopped from relitigating the issues so decided.

In the recent decision of this Court in Ezewani v. Onwordi (1986) 4 NWLR (Pt.33) 27 Sc. this Court held that issue estoppel applies to preclude a party from contending the contrary or opposite of any specific point which having once been distinctly put in issue has with certainty and solemnity been determined against him. The estoppel applies whether the point involved is one of law or fact, or mixed law and fact it is indeed not necessary to plead specifically the issue of traditional history as issue estoppel before they could be used as such -See Chinwendu v. Mbamali (1980) 3-4 SC. 31. Fadiora Anor v. Gbadebo (1978) 3 SC 219.

The appellants’ traditional history having been rejected in Suit No. HOR/47/75, they cannot now rely on the same traditional history in support of their ownership of the land now in dispute. The issue has already been decided in Suit No. HOR/47/75 between the parties. Their claims were rightly dismissed by the Court below on the principle of issue estoppel.

The plea of issue estoppel was clearly available to the respondents on the evidence before the Court. I therefore dismiss the appeal on this ground; and in addition to the much fuller reasons stated in the well reasoned judgment of my learned brother Ogundare, J.S.C..

I award costs of N 1,000.00 to the respondents.S. KAWU, J.S.C.: I have had the advantage of a preview of the lead judgment of my learned brother, Ogundare, J.S.C. which has just been delivered. I am in complete agreement with his reasoning and his conclusions on the various issues raised. I agree with him that the appeal should not be allowed. Accordingly, I also dismiss the appeal and affirm the decision of the lower court with N1,000.00 costs awarded to the respondents.A. B. WALI, J.S.C.: I have had the advantage of reading the draft of the lead judgment of my learned brother, Ogundare, J.S.C. and I entirely agree with him that the appeal lacks merit and it should be dismissed.

For those same reasons contained in the lead judgment, which I hereby adopt as mine, I too will dismiss the appeal and accordingly affirm the judgment of the Court below. I abide by the consequential order as to costs.

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Other Citation: (1992) LCN/2516(SC)