Olowo Okukuje V. Odejenima Akwido (2001)

LAWGLOBAL HUB Lead Judgment Report

KATSINA-ALU, J.S.C

This appeal is from a decision of the Court of Appeal, Benin Division, which set aside the judgment of the trial Oleh High Court in a land claim. The plaintiff brought this action for himself and on behalf of the Akpara Family of Ofagbe Village against the defendant Odjeniwa Akwido for himself and on behalf of Ighavie Family also of Ofagbe Village in Isoko Division, for the following reliefs:-

1. A declaration of title to the land verged pink in the survey plan filed by the plaintiff.
2. N200.00 damages for trespass committed by the defendant between January, 1976 and February, 1976.
3. An order of forfeiture of the defendant’s right of tenancy to the area verged pink in plaintiff’s survey plan and for an order of perpetual injunction restraining the defendant from carrying on any building on the area verged pink in the survey plan.
4. An order of mandatory injunction to remove any structures erected or crops grown outside the area verge yellow and brown in plaintiff’s survey plan.
5. Any other legal or equitable relief.

The defendant not only filed a defence but also a counter-claim for:

1. A declaration of title to the land particularly described in the defendant’s plan.
2. N10,000.00 damages for trespass committed by the plaintiffs, their servants, agents or workmen who, sometime between February, 1976 and November, 1983 broke and entered the said land, deposited sand thereon and erected structures.
3. An order of perpetual injunction restraining plaintiffs from entering the said land or part thereof.

The defendant at the trial relied on estoppel per rem judicatam and issue estoppel both in his pleadings and in his evidence. The basis for such reliance was two judgments –

(1) an Owhe Customary Court judgment (Exhibit ‘C”) and,

(2) Oleh Magistrate Court judgment (Exhibit “D”)

In his judgment the learned trial Judge held that the present action was not res judicata and also that the plaintiff has proved his claim. He entered judgment for the plaintiff in the following terms:-

(a) A declaration that the plaintiff and his family are entitled to a Certificate of Occupancy to the piece of land verged pink in plaintiff’s survey plan tendered as Exhibit “A”

(b) N100.00 damages against defendant and his family for trespass.

(c) Perpetual injunction restraining the defendant, his servants, agents and all members of Ighavie family from carrying on any building or other works on the land verged pink in Exhibit “A” without the consent of the plaintiff and members of his family except the portion verged yellow and brown on Exhibit “A”

The defendant appealed to the Court of Appeal, Benin Division. The court below in its judgment held that the defendant had successfully made out a case for the application of both cause of action estoppel and issue estoppel. The court therefore allowed the appeal, dismissed the plaintiff’s claim and entered judgment for the defendant on the counter-claim.

This appeal by the plaintiff to this court is from the said decision of the Court Appeal.

The plaintiff submitted two issues for determination. They are:-

1. Whether the plea of estoppel per rem judicatam (and we would add) and issue estoppel avail the respondent, and if they do, whether the respondent is entitled to judgment in his counter-claim
2. If the plea of estoppel per rem judicatam and issue estoppel are unavailable to the respondent, whether the appellant is entitled to judgment (and we would add) as found by the trial court

The defendant also raised two issues for determination which read as follows:

1. Whether the Court of Appeal was right when it held that both cause of action estoppel and issues estoppel applied in favour of the defendant/counter-claimant.
2. Whether the Court of Appeal ought to have considered the other grounds of appeal filed by the defendant/respondent in his appeal to that court and the consequence of its failure to consider them.

The main question for determination in this appeal is whether the defendant made out a case for the application of both estoppel per rem judicatam and issue estoppel.

Estoppel per rem judicatam or estoppel of record arises where an issue of fact has been judicially determined in a final manner between the parties or their privies by a court or tribunal having jurisdiction in the matter and the same issue comes directly in question in subsequent proceedings between the parties or their privies. See Igwego v. Ezeugo (1992) 6 NWLR (Pt.249) 561; Osunrinde v. Ajamogun (1992) 6 NWLR (Pt.248) 156.

For the doctrine of estoppel per rem judicatam to apply, it must be shown that:

(a) the parties;

(b) the issues, and

(c) the subject-matter

in the previous action were the same as those in the action in which the plea is raised. Once these ingredients of resjudicata are established, the previous judgment estops the plaintiff from making any claim contrary to the decision in the previous case. See Odjewedje v. Echanokpe (1987) 1 NWLR (Pt.52) 633; Ezeanya v.Okeke (1995) NWLR (Pt.388) 142; Dokubo v. Omoni (1999) 8 NWLR (Pt.616) 647.

I shall now proceed to examine whether these main ingredients of res judicata were established by the defendant as found by the court below.

Parties: It was the case of the plaintiff that the parties are not the same. It was pointed out that the defendant who was the plaintiff in Oweh Customary Court Exhibit “C” brought the action in a representative capacity i.e. for himself and his Ighavie family. He brought this action against the plaintiff herein who was defendant in his personal capacity. It was the contention of the plaintiff that the fact that he made reference in his evidence at the Customary Court to the root of his title does not amount to defending the action in a representative capacity. Put in another way, the plaintiff’s contention is that he was sued in his personal capacity and that he defended the action in his personal capacity.

The defendant, for his part, concedes that even though he prosecuted the previous case in a representative capacity, he sued the defendant therein (i.e. plaintiff in the present case) in his personal capacity. It was however submitted that the defendant in that case defended the action in a representative capacity for himself and on behalf of the Akpara family.

The question to be resolved is: did the defendant in the earlier case (Exhibit “C”) defend the action in his personal capacity or in a representative capacity for himself and on behalf the Akpara family The defendant in Exhibit “C” testified and gave evidence as follows:

“The plot in dispute is owned by Akpara my great grand father ……………my Akpara family has a common boundary with Ese Family in Eghahe Street, my family also have boundaries with Osifo and Egide families in the plot in disputes,”

His witnesses all testified to the effect that the plot in dispute belonged to the Akpara family.

From the totality of the evidence called by the defendant in the earlier case Exhibit “C” is it right to say that he defended the action in a representative capacity The answer would depend on who is a representative. A representative is a person authorised to act or speak for another or others. By this definition, it would appear that there must be some kind of authorisation given by the person or persons to be represented. Throughout the evidence of the defendant, he did not as much as allude to the fact that he was defending the action for himself and on behalf of his family. I am not unmindful of the fact that this was a trial in a Customary Court. That notwithstanding, it must be apparent on the record that the defendant defended this suit for himself and on behalf of his family.

The plaintiff in that case sued the defendant personally. The reason is obvious. The claim against the defendant was for title and damages for trespass. It was never contended that some other members of the defendant’s Akpara family also trespassed unto the building plot in question. Part of the plaintiff’s evidence in the Customary Court reads:

“When the defendant was building the house, my father who is now late refused that he should build it. He then used force to build it, but my father who was aged then wept. Later on, my sister named Ititi Okoro caused the defendant to be summoned to the Ofagbe town community over the plot in dispute and the decision was in favour of my sister. The defendant was then asked to quit the plot.”

All along, the culprit, as it were, was the defendant. The fact that he was sued personally was a deliberate act by the plaintiff. He was conscious of the fact that no other member of Akpara family disputed the building plot with him and his family. Against this background, it will be seen clearly that the evidence of the defendant that “the plot in dispute is owned by Akpara my grand father” was only intended to explain away his root of title. He did not remotely suggest that the plot was allocated to him by the principal members of the Akpara family. He did not also say that he was in court defending the action with the full knowledge and consent of the Akpara family members.

So, can it be said that the parties in the two cases are in the same capacity and right when Exhibit ‘C’ was fought on the basis of a contest between Ojenima Akwido for himself and on behalf of Ighavie lineage of Ugwe family of Ofagbe and Olowo Okukuje of Ofagbe whereas the present case is between Olowo Okukuje for himself and on behalf of Akpara family of Ofagbe village and Odjenima Akwido for himself and on behalf of Ighavie family of Ofagbe Village both claiming to be exclusive owners of the land in dispute I am of the strong view that by no stretch

can the parties in the two cases be said to be suing and defending the suits in the same rights and interest. It is now settled law that where an action is brought by a person in a representative capacity against another person personally and prosecuted to judgment, and later a further action is brought against him in representative capacity by the plaintiff in the original action, the judgment is not the same, since in the earlier action the defendant is sued in his personal capacity and in the latter action as a representative of a class of persons. See Shitta-Bey & Ors v. The Chairman LEDB & Ors (supra); Ezeanya v. Okeke (supra). In the later case, this court per Iguh, JSC held thus:

“Where an action is brought against the defendant personally and prosecuted to judgment, and later a further action is brought against him in a representative capacity by the plaintiff in the original action, the judgment is not res judicata as the parties to the respective actions are not the same, since in one action the defendant is sued personally and in the other as representative of a class of persons.”

Also in Udeze & Ors. v. Chidibe & Ors. (1990) 1 NWLR (Pt.125) 141 this Court per Nnaemeka-Agu JSC held:

“In that state of facts, the question is: can the parties in the two cases be said to be in the same capacity and right when Exhibit “C” was fought on the basis of a contest between Nnadi Nsugbe and Ifite Nteje whereas the instant case is between the appellant family of Amansi and Ifiti-Nteje claiming to be exclusive owners and the whole of lfiti Nteje, claiming to be communal owners of the land in dispute I am of the clear view that by no stretch can the parties in the two cases be said to be suing and defending the suits in the same rights and interest. So if the issue of res judicata were taken as a sole issue and, so often happens, in limine. I would for these reasons, have had no alternative but to agree with Chief Ikeazor that the learned trial Judge was in error to have held that the decision in Exhibit C operates as res judicata in this case………..”

It must be borne in mind here that the land claimed by the respondent in his counterclaim encompassed a large tract of land which included the area claimed by the appellant. It must also be remembered that the parties have prosecuted and defended the action in a representative capacity.

The decisions of this court speak of “where an action is brought against the defendant personally and prosecuted to judgment.” What does this phrase mean I think it means that the defendant who is sued personally does not change the capacity throughout the trial. How can he change that personal capacity in which he is sued He can do this by tendering the authority to defend in a representative capacity from the class of persons he seeks to represent. In trials in native courts, it is sufficient if he states that he is defending for himself and the persons he represents some of whom will testify and confirm his authority. In Exhibit ”C”, the personal capacity in which the defendant was sued did not change throughout the trial.

One more point. If the evidence that “the plot in dispute is owned by Akpara” is taken to mean that the land in question belongs to the Akpara family then it is right to say that the plaintiff did not sue the proper party. The Akpara family should have been joined in the action. This is so because family land remains family land irrespective of allotment. See Olangwuno v Ogunsanya (1970) 1 All NLR 223. The court has a duty to ensure that all parties likely to be affected by the result of an action are joined in the action: See Okafor v. Nnaife (1987) 4 NWLR (Pt.64) 129; (1973) 3 SC 85.

For the above reasons, I am of the clear view that the Court of Appeal was in error when it held that the parties in the previous proceeding are the same as the parties in the present case. The case below per Edozie JCA held thus:

“As I indicate at the onset the main question posed in this appeal relates to the plea of estoppel per rem judicatam. It is elementary principle of law, that before a judgment can operate as an estoppel in subsequent proceedings, the parties, issues and subject-matter in the two proceedings must be the same. In the case in hand, it is clear that the parties in the previous judgment, Exhibit ‘C’ are the same as the parties superficially the defendant in Exhibit ‘C’ was sued personally although he in the instant case sued in a representative capacity for himself and on behalf of Akpara family of Ofagbe Village. But it is trite that in dealing with customary court cases, what matter is the substances and not the form of the claim: Ben Ikpang & Ors v. Chief Sam Edoho & Ors (1978) 6&7 SC 221. Learned counsel for the appellant submitted, and this was not disputed by the opposing counsel that although the respondent in the present case was in the previous proceeding sued personally, he nevertheless, defended the action in a representative capacity for the Akpara family. After scanning through Exhibit ‘C’ I agree entirely with him. In his evidence in the customary court proceeding (Pp.190 & 193 of the record), the defendant therein, that is the respondent in the present case said:

‘My name is Olowo Okukuje…………I am a direct descendant of Akpara, Akpara begat Eloge…………The plot in dispute is owned by Akpara, my great grand father ……….”

I am satisfied that the parties to the previous proceeding are the same as the parties to the present case. The principal relief sought in the two proceedings, to wit, title to land are also the same. The issue in the two suits are therefore the same. With respect to the matter, it is common ground that the land in dispute in the former proceedings is smaller than the land in the present case. In Exhibit ‘C’ the claim was for a declaration of title in respect of a building plot which according to Oweh customary court Judges who inspected it measured 48ft by 30ft. The area in dispute in the present case is not specified but from the survey plans Exhibit ‘A’ and ‘B’ it is a much larger area of land.”

The above view has two major flaws. First, the parties, as I have shown are not the same. In the earlier case, Exhibit “C”, the present plaintiff was sued in his personal capacity. And he defended the suit in his name. He has instituted the present action and was himself sued in a representative capacity i.e. for himself and on behalf of Akpara family. Clearly it cannot be said that he defended the earlier suit and prosecuted the present suit in the same rights and interest. The judgment in the two case is not the same either because in the one action the plaintiff herein was sued personally and in the present action he brought this suit and was sued in a representative capacity for himself and on behalf of Akpara family. In the second place, the subject-matters in the two actions were not the same. The subject-matter of the earlier case (Exhibit C) was a smaller area of land whereas the subject-matter in the present case is a much larger area of land of which the land in Exhibit C forms only a fractional part. It is for this reason that the plea of res judicata cannot apply to the larger land area in contention. In Aro v. Fabolude (supra) the Supreme Court held:

‘The most lenient treatment the plaintiff s case could possibly receive from the High Court would have been for the small area verged yellow to be excised from the large tract of land and the defendant declared owner, as per rem judicatam of the portion, based on Exhibit “B”, while the plaintiff would be left to discharge the onus of proof which lay on him in respect of the remainder of the land ……………………”

Subject-Matter:

It was pointed out on behalf of the plaintiff that the land in dispute in Exhibit “C” was only 48 feet by 30 feet. In the instant case, the land in dispute is a much larger parcel of land. I might add that the land in Exhibit “C” forms a part of the larger area now in dispute in the present case.

It was the plaintiff’s submission that the subject-matter in the two cases is not the same. Consequently the plea of res judicatam cannot apply to the larger land in contention. Plaintiff relied on the case of Aro v. Fabolade (1983) 1 SCNLR 58; (1983) NSCC Vol. 14 p.43.

For the defendant, it was submitted that the Court of Appeal was right in holding that the subject-matter in Exhibit “C” and “D” and instant suit are the same. It was pointed out that the cause of action in the present case is the area of land already litigated upon in Exhibit “C”.

It is not in dispute that the subject-matter in the Customary Court- Exhibit ‘C’ was a smaller area of land whereas the subject-matter in the present case is a much larger area of land of which Exhibit “C” forms only fractional part. The defendant at p.9 of his brief of argument [respondent’s brief] said:

“It is submitted therefore, that the defendant clearly showed by evidence the extent of land litigated in Exhibit “C” and identified the land and its boundaries among the piece of land in dispute in this suit.

In fact the evidence in this suit clearly shows that even though it involved a far bigger land, the real cause of action is the area of land already litigated and decided upon in Exhibit “C” and “D”. Having therefore, clearly ascertained the boundaries of the land in dispute in Exhibit “C”. It is submitted that the appellant here is estopped from instituting this action over that same piece of land. The action as it relates to that area, it is submitted, ought to have been dismissed by the trial court and judgment entered for the respondent with respect to that area.”

The defendant seems here to be concerned only with the area of land in Exhibit ‘C’ which was the cause of action in the previous case. There is evidence that the land which was the subject- matter of the previous action was far smaller than that in question in the present action. This is not in dispute. I am therefore unable to accept the contention that the subject-matter of the two actions were the same. See Dokubo v. Omoni (supra).

ISSUE ESTOPPEL

One of that conditions to satisfy in order to sustain a plea of issue estoppel is that the parties must be the same in both cases – See Samuel Fadiora & Anor. v. Gbadebo & Anor. (1978) 3 SC 219 at 228 – 229. I have already held that the parties in the present case are not the same, therefore the question of issue estoppel as between the present parties does not arise. See Ezeanya v. Okeke (supra).

In previous suit only the appellant in his personal capacity had interest to defend. The situation was different in the present suit because other members of appellant’s family were interested and therefore necessary parties. They had a right to be heard in a claim involving their properties which were at no time in issue in the previous suit.

In the course of his judgment, the learned trial Judge held thus:

“It is quite clear from above that the area claimed by the defendant was a building plot unlike the instant case where the defendant in his counter-claim claimed a piece or parcel of land lying and situate along Egbahe Street shown in Exhibit “B”. In effect the area he claimed in Exhibit “B” is by far larger than the area he claimed in Exhibit “c” as Exhibit “C” and the subject-matter cannot therefore be the same as Exhibit “C” does not cover Exhibit “B” and the evidence therein. It is also my view that neither the judgment in Exhibits “C” and “D” nor the evidence given therein could create estoppel per rem judicatam as between the plaintiff and the defendant since the evidence, the issues and the reasons for the decision will be different. For a judgment to create estoppel, between the parties, the estoppel must be mutual, between the parties. Daniel & Anor v. Iroeri (1985) 1 NWLR (Pt.3) 541 at 542.

As between the plaintiffs case and that of the defendant’s case, I accept and believe the evidence in the plaintiff’s case as truthfully stating how the land in dispute was founded by Akpara, the plaintiff’s ancestor through the generosity of Egide. I also accept and believe the plaintiff s case that Igbavie left the defendant’s family and stayed with Obohwo of plaintiff’s family. I do not believe the evidence of the defendant as to how Igbahe land was founded by his ancestor, Uhwe, because he failed to trace his root of title to the land through his ancestor, Uhwe. I do not believe his evidence, that Uhwe brought Akpara, the plaintiff’s ancestor from the bush to stay with him. I am quite satisfied on the evidence before me and I find as a fact that the land in dispute belongs to the plaintiffs family and they have been such owners in possession from the time Egide gave it to his ancestor Akpara. The defendant’s claim of ownership of the land therefore fails and plaintiff is entitled to judgment.”

I agree completely. The decision is amply supported by the evidence before the trial court.

In the result I am satisfied that the trial court properly evaluated the evidence and came to a right decision. This appeal therefore succeeds. I allow it and set aside the judgment of the Court of Appeal. I hereby restore the judgment of the trial court delivered on 4/12/87. The plaintiff/appellant is entitled to costs which I assess at N10, 000.00.

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SC.58/1992