Omeazu Chukwura v. A. J. Ofochebe (1972)

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B. A. COKER, J.S.C.

The present appellant, Omeazu Chukwura, was the defendant before the High Court, Onitsha (East-Central State) in an action instituted against him “for himself and on behalf of the people of Akpom Umudioka” by A. L. Ofochebe, who is the present respondent, and had sued “for himself and on behalf of the people of Ifite Ogbunike.” That was Suit No. 0/22/63 and the writ therein was endorsed for the following claims:

“(1) Declaration of title of ownership to the piece of land called and known as AGU-UGWUOBA situate at Ifite Ogbunike and more particularly shown and delineated on a plan to be filed in court.

(2) Forfeiture of the defendant’s possession of any portion of the said land.

(3) 100pounds damages for trespass.

(4) Injunction to restrain the defendant, his servants and agents from going upon or making use of the land.”

Soon after the institution of this action, Omeazu Chukwura and two others “for themselves and on behalf of the people of Akpon Umudioka” instituted another action in the same court against Ajofobi Ofochebe and another person “for and on behalf of Ifite Ogbunike.” That was Suit No. 0/32/63 and that writ was endorsed as follows, in part:

“The plaintiffs’ claim against the defendants is for:

(a) Declaration of title to the parcel of land known as “AGE MMILI NKISSA” situate at Akpom Umudioka in Onitsha Division and more particularly delineated on a plan to be filed in this case.

(b) 200pounds damages against the defendants jointly and severally for trespass on the said parcel of land.

(c) Injunction to restrain the defendants, their heirs and successors, servants from further doing anything thereon.”

Thus, the two actions were between the people of Ifite Ogbunike on the one hand and the people of Akpom Umudioka on the other hand.

Pleadings were separately ordered and filed in the two cases but both were later consolidated for hearing. The pleadings of the parties and the plans filed and produced in evidence by them too easily revealed that the parties were disputing the same piece of land and that the land, called by and known to the plaintiff’s people of lfite Ogbunike as Agu Ugwuoba, is the same land as is called by and known to the defendants’ people of Akpom Umudioka as Age Mmili Nkissa. The consolidated cases were heard by Kaine J. (High Court, Onitsha) and in the course of a reserved judgment, he gave in favour of the plaintiffs, observing as follows:

“I am therefore of opinion that the plaintiffs have proved their case and are entitled to judgment.

In Suit No. 0/22/63 there will be judgment for the plaintiffs:

(1) for a declaration of ownership to the piece of land in dispute as delineated in their plan exhibit J.

(2) I award the plaintiffs 20pounds damages for trespass.

(3) I also grant the plaintiffs an injunction against the defendants.

The claim for forfeiture is non-suited. The plaintiffs will have the costs of that suit which I assess at 90 guineas.

In Suit No. 0/32/63 I dismiss all the claims of the plaintiffs in that suit. The defendants in Suit No. 0/32/63 shall have the costs which I assess at 50 guineas.”

This appeal is from that judgment and was brought by the defendants’ people of Akpom Umudioka. A number of grounds of appeal were filed and argued on behalf of the appellants but only one of them deserves any serious consideration. That one complains that the learned trial judge was in error of law for not regarding as res judicata the judgment of the Ogidi Native Court, Case No. 96/55, produced in evidence by the defendants and admitted as exhibit O. In the course of the proceedings, both sides had pleaded, given evidence and produced various court judgments, most of them emanating from native courts, and both sides had sought at the trial to rely on these judgments. During the hearing, after the plaintiff’s people of lfite Ogbunike had closed their case, learned counsel appearing for the people of Akpom Umudioka, who are the plaintiffs in Suit No. 0/32/63, applied to the court to amend their statement of claim in that suit by adding another paragraph as follows:

“(9a). In Ogidi Native Court Suit No. 96/55 the plaintiff took action against Ezennia and Nwugo Nwokoye claiming damages for trespass on the land now in dispute and got judgment. This suit will also be founded upon.”

Although the application was vehemently opposed by learned counsel for the other side, it was granted and an order was made by the court as prayed. The defendants then led evidence concerning this judgment and indeed produced as exhibit O the record of the proceedings and judgment in that case. That evidence was given by Omeazu Chukwura himself and it is as follows:

“I also sued Nwugo and Ezennia about the land in dispute. Nwugo cut palm fruits and Ezennia tapped palm wine. This was in Ogidi Native Court. The palm trees were on the land in dispute. I got judgment against them. This is the copy of the proceedings, objection-admitted and marked exhibit O. Nwugo is a native of Ifite and a relation of Ofochebe the plaintiff. Thomas was the husband of Nwugo and Thomas was from Umuezechua. It was when I sued Nwugo that Ofochebe sued me in the Native Court of Imu-Igwedo claiming the land as his own.”

In the course of the addresses of counsel at the end of the hearing, learned counsel for the defendants submitted that in-as-much as exhibit O concerns the land in dispute, it should be regarded as res judicata against the plaintiff’s people of Ifite Ogbunike. On the other hand, learned counsel for the plaintiffs submitted that exhibit O does not partake of the essential elements of the plea of estoppel per rem judicatam and that in any case there was no record of inspection of the locus concerned in that case by the native court so as to identify with any degree of precision the actual area of land to which the case relates.

In the course of the judgment, the learned trial judge found that the Ezi Mili Kissa Road is the boundary between Umudioka and Ogbunike so that lands east of that road belong to the defendants whilst lands to the west of it belong to the plaintiff’s people. The learned trial judge then considered exhibit O. As stated before, the case in exhibit O is an action instituted in the Ogidi Native Court between Omeazu Chukwura for and on behalf of the Akpom family in Umudioka and (i) Ezennia at Umuezechina and (ii) Nwugo Nwokoye of Umuezechina. The claim in the action reads:

“Claim 10pounds damages for trespassing, tapping palm wine and harvesting palm fruits respectively on plaintiff’s Agu Mili Nkisa land since 25 days ago.”

The evidence in the case is to the effect that the two defendants were tenants of the people of Ifite Ogbunike and the native court adjudged that the defendants were in trespass and should pay damages. Ofochebe, the present respondent, was a witness called by the defendants in that case.

In his consideration of the submission of learned counsel that exhibit O should be regarded as estoppel per rem judicatam against the plaintiffs, the learned trial judge stated that he did not agree with the submission and one of the reasons he gave was that the parties were not the same. It is settled law that estoppels must be mutual. See Co. Litt. 352A; also James v. Landom(1585) Cro. Eliz. 36(or 78 E.R. 302), especially per Anderson C.L. at 37; also Gaunt v. Wainman (1836) 3 Bing N.C. 69 (or 132 E.R. 335). In the present proceedings, it is inconceivable that the plaintiff’s people of Ifite Ogbunike would be entitled to hold out the judgment in exhibit O as res judicata if the defendants therein had won the case. True enough, the present representative of the Ifite Ogbunike people, i.e. Ofochebe, was a witness in that case and claimed to have let out the lands to the defendants therein, but the issue was trespass and the material evidence was as to whether or not those defendants had trespassed on farmlands lawfully in the possession of the people of Akpom Umudioka.

There are however, other reasons why exhibit O could not have been treated as res judicata. We have already referred to the pleadings, i.e. paragraph 9A, by which it was introduced into this case. It was stated that the defendants would found on it and nowhere was it claimed or averred that it would be relied upon as estoppel by res judicata.

The submission that it should be so treated was therefore misconceived. If it was to be so regarded, the defendants ought to lead further evidence about it and in particular must establish the identity of the parties and the identity of the subject-matter with those at present in issue.

That was not done and the learned trial judge was therefore right in coming to the conclusion that he could not so regard exhibit O. It is undoubtedly a matter relevant to the proceedings in the language of section 54 of the Evidence Act and indeed exhibit O is conclusive as to the matters actually decided thereby. But, for estoppel per rem judicatam to operate it is not enough to show that the matter alleged to be concluded might have been put in issue.

In exhibit O the title of the plaintiff’s people was not put in issue in the proceedings as the present plaintiffs were not parties to that action. It is indeed necessary in order to affect the plaintiffs that that matter or rather their title was so put in issue or claimed. See the observations of the Privy Council in Payana Reena Saminathan etc. v. Pana Lana Palaniappa [1914] A.C. 618.

We do not accede to the argument on the only ground of appeal deserving of our consideration. The appeal therefore fails and it is dismissed. The appellants will pay to the respondents the costs of the appeal assessed at 52 guineas.

SC.699/1966