Rev. Edem Okon Bassey & Anor V. Bassey Okon Akpadia (2016)
LawGlobal-Hub Lead Judgment Report
ONYEKACHI AJA OTISI, J.C.A.
This is an appeal against the judgment of the High Court of Akwa Ibom State, Uyo Judicial Division Coram Hon. Justice Andrew E. Okon delivered on October 31, 2012 in Suit No. HU/85/91 in which judgment was entered against the Appellants.
?The case had earlier been heard at the Southern Ibesikpo District Court, Nung Udoe Ibesikpo in Suit No. SIDC/73/81 in which the Appellants were the plaintiffs and the Respondent herein and another, were the defendants. The said Suit No. SIDC/73/51 was withdrawn in the District Court by the Appellants as plaintiffs and the suit was consequently struck out by the said District Court. After striking out the suit, the District Court ordered the Appellants, who were the plaintiffs therein, to vacate the land, the subject matter of the suit and to pay special cost of N30.00. The Respondents, who were defendants in that suit, thereupon filed a fresh suit in the High Court of Uyo, claiming ownership of the said land, which they called “Ataha Aya lkon” and is situate at Ikot Obio Odongo Ibesikpo. The Appellants alleged that the said land at Ikot
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Obio Odongo Ibesikpo includes the lands of other families of Ikot Ide who were not sued in the case at High Court, Uyo. That they are the lands of “Nung Udo Nkanang, Nung Akpa Atang, Nung Udo Abasi, Nung Nsudo Akpan Edu and Nung Nsikak Etok.” The Appellants as defendants before the High Court claimed ownership of the land which they called “Ataha Aya Ikot Ide” owned by Nung Akpan Edu only situate at Ikot Ide Akpakpan Ibesikpo. Four exhibits were tendered: proceedings of the District Court as Exhibits “A”; proceedings of the Magistrate’s Court as Exhibit “B”; the Survey Plan of the Respondents herein, plaintiffs therein, as Exhibit “C”; and the Survey Plan of the Appellants, defendants therein, as Exhibit D. The learned trial Judge delivered judgment in favour of the Respondent against the Appellants.
Being dissatisfied with the said judgment the Appellants filed Notice of Appeal with an omnibus ground of Appeal on January 8, 2013, at pages 178 – 179 of the Record of Appeal. The said Notice of Appeal was struck out upon the subsequent filing of an Amended Notice of Appeal on June 19, 2013 upon five grounds of appeal.
?The Appellants’ Brief was filed on
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June 3, 2014 but deemed on May 22, 2015. The Respondents did not appear and were not represented in this appeal. They also filed no Brief of Argument. On May 11, 2015, this Court granted an application by the Appellants for the appeal to be heard on the Appellant’s Brief alone. The said Appellants’ Brief was adopted on April 26, 2016 by C.A. Ukpong, Esq. for the Appellants.
The Appellant formulated, from the five grounds of appeal, three issues for determination as follows:
ISSUE 1 (GROUND 2,5)
Whether the striking out of the case of the Plaintiff (Appellant) in Exhibit A at the District Court and at the same time ordering them (Plaintiff) now Appellants to vacate the land was competent.
ISSUE 2 (GROUND 1 & 3)
Whether the Respondent could be said to have proved or established the identity of the land in dispute with certainly to enable the Lower Court give judgment in his favour.
ISSUE 3 GROUNDS 1 & 4)
Whether the Lower Court was right to have ignored Exhibit D, the Survey Plan of the Appellants but relied solely on Exhibit C, Survey Plan of the Respondent to give judgment and grant Customary Right of Occupancy to the
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Respondent.
I adopt these issues as formulated by the Appellants for determination. Issues 2 and 3 shall be resolved together.
The Appellants submitted on Issue No 1 that the judgment of the District Court, Exhibit A, did not raise the issue of estoppel per rem judicata.
The Appellants as plaintiffs had withdrawn their suit before it was struck out by the District Court. The subsequent order for the Appellants to vacate the land after striking out the suit was incompetent and not binding. It cannot act as estoppel. Having struck out the suit, there was nothing left for the District Court to act upon. That issue estoppel arises where an issue has been adjudicated upon by a Court of competent jurisdiction and the same issue has arisen in question in a subsequent proceeding between the same parties or their privies. The Court was urged to hold that the trial Court had misapplied the law and to allow the appeal.
?It is well settled that for a defence or plea of res judicata to succeed the parties in the previous action which is pleaded, and in the present one must be the same, the subject matter must be the same, the claim must be the same and
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the Court which pronounced the judgment must be a Court of competent jurisdiction, Ogboga v. Ndiribe (1992) 6 NWLR (Pt.245) 40, Daniel Tayar Trans Ent. Nig. Co, Ltd v. Busari (2011) LPELR-923(SC); A.G. of Nassarawa State v. A.G. of Plateau State (2012) LPELR-9730 (SC); Ayuya v. Yonrin (2011) LPELR-686 (SC).
The judgment in the earlier case to operate as estoppel per rem judicata must be a decision on the merit, a final judgment, deciding on the rights of the parties, Obasi Bro. Merchant Co. Ltd v. Merchant Bank of Africa Securities Ltd. (2005) 2,S.C (Pt 11) 51, Abiola & Sons Bottling C. Ltd v Seven-Up Bottling Co Ltd (2012) LPELR-9279 (SC). In Ogbogu v. Ndiribe (supra), the Supreme Court, per Ogundare JSC, said:
“It is trite that where a Court of competent jurisdiction has settled, by a final decision, the matters in dispute between the parties neither party nor his privy may re-litigate that issue again by bringing a fresh action. The matter is said to be res judicata. The estoppel created is one by record inter partes. Now there are two kinds of this estoppel.
The first is called ’cause of action’ estoppel while the second is known as issue
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estoppel. Idigbe JSC distinguished the two types of estoppel by record inter parties in Fadiora v. Gbadebo (1978) 3 SC 219 228-229 in these words:
?Now, there are two kinds of estoppel by record inter parties or per rem judicatam as it is generally known. The first is usually referred to as ’cause of action estoppel’ and it occurs where the cause of action is merged in the judgment, that is, Transit in rem judicatam (See King v. Hoare (1844)13 M. & W 495 at 504). Therefore, on this principle of law (or rule of evidence) once it appears that the same cause of action was held to lie (or not to lie) in a final judgment between the same parties, or their privies, who are litigating in the same capacity (and on the same subject matter), there is an end of the matter. They are precluded from re- litigating the same cause of action. There is however, a second kind of estoppel inter parties and this usually occurs where an issue has earlier on been adjudicated upon by a Court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in these circumstances,
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‘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 or mixed fact and law. However, for the principle to apply, in any given proceedings, all the preconditions to a valid plea of estoppel inter partes or per rem judicatam must apply, that, (1) the same question must be for decision in both proceedings (which means that the question for decision in the current suit must have been decided in the earlier proceeding), (2) the decision relied upon to support the plea of issue estoppel must be final (3) the parties must be the same (which means that parties involved in both proceedings must be the same) (per se or by their privies).?
Where the plea of res judicata is proved, it ousts the jurisdiction of the Court before which a fresh action is submitted for adjudication from
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entertaining the question already decided. Thus, a successful plea of res judicata constitutes a bar to any fresh action between the parties; Ito v. Ekpe (2000) 3 NWLR (Pt.650) 678; Ajiboye v. Ishola (2006) 11 MJSC 192.
Exhibit A was the District Court proceedings on Suit No 78181, which had been instituted by the Appellants as plaintiffs. The parties to this appeal were parties in that suit before the District Court. The Appellants herein sought orders from the District Court for the Respondent herein to vacate the land known as and called “Ataya Aya? and situate at Ikot Ide Akpakpan. It is the same land in issue before the lower Court, leading to this appeal. Under cross examination, the 1st Appellant as DW1, admitted that judgment in that suit was in favour of the Respondent. The Appellants were dissatisfied with the said judgment and appealed to the Magistrate Court. But they withdrew the appeal. Referring to the said judgment of the District Court, the learned trial Judge noted, at page 174 – 175 of the Record of Appeal:
“In its findings, the Southern Ibesikpo District Court said on page 25 of Exhibit A that:
“The plts sues the
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deft. for vacation of the plts. 110 pieces of land known and called “Ataya Aya” situated at Ikot Ide Akpakpan which the deft. encroached upon sine about 1979 – 11/2 years now. The above case entered into this Court since 1981. The judgment for absent was given in 1983. The deft. filed a letter for re-hearing in 1984. The motion was deleted (sic) in 1984 that parties should stand face to face in this case.
Parties in this case made statement in this case with their witnesses. The Court inspected the disputed land on 5/8/85.
The plts in this case filed letter of withdrawal of this suit in this Court on 29/10/85. This letter was given to Senior Inspector of Records in Uyo Judicial at Uyo and copy this Court. The Court now discovered that the pltfs was (sic) telling lies and frame false claim.”
The District Court then struck out that suit. It did not stop there. It went on in its judgment on page 26 of Exhibit A to make the following order:
“— The pltfs. to pay N30.00 special cost to defdts. In 14 days. It pltfs to quit the disputed land to the defdts”. (Emphasis mine)
Once a judgment or order made by a Court finally disposes of the
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rights of the parties, then it is a final order. A judicial decision is deemed to be final, when it leaves nothing to be judicially determined thereafter, in order to render it, effective and capable of execution. Fadiora v Gbadebo (1978) LPELR-1224 (SC); Omonuwa v Oshodin (1985) LPELR-2654 (SC).
The order made by the District Court striking out the suit was a final order in respect of the application to withdraw the suit. But the other order made by the District Court for the Appellants to vacate the land for the Respondent, is an order that can only be made at the conclusion of hearing of the suit on the merit. The suit before it was struck out, did not conclusively determine the matter. Orders that can only be made upon the determination of the matter cannot be validly made without such final determination. Such orders would only amount to null orders,Timitimi v Amabebe & Ors. 14 WACA 374; Onyero v Nwadike (2011) LPELR- 8147 (SC) .
Furthermore, there was no counterclaim on record. The Respondent did not seek the order for the Appellants to vacate the land in issue. Therefore, the order was made without any application for it. The District
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Court could not have validly made the order. The said order was a null order and the Appellants are entitled ex debito justitiae to have it set aside. However, the order remained effective until set aside.
The Appellants did not apply to the District Court to have the order set aside, but feebly attempted to appeal against the said order of the District Court. The learned trial Judge noted, at page 175 of the Record of Appeal:
“The defendants herein gave notice of appeal in Exhibit A but did not follow it up to its logical conclusion. It appears that the appeal was later struck out. In Exhibit B, they applied to relist the appeal and for extension of time to file grounds of appeal. The learned Chief Magistrate Grade I. A. A. Attah Esq who heard the application ruled on page 2 of Exhibit B that:
“This application for relisting this purported Appeal fails and is hereby struck out with cost to respondent assessed at N50.00.”
With that the judgment in Exhibit A subsisted.”
As rightly contended by the Appellant, the order to vacate the land in issue, made after the matter was dismissed amounted to a nullity. It is well settled that an order
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or judgment of a Court of competent jurisdiction subsists unless and until it is set aside, even where the person affected by it believes it to be void or irregular. The procedure to have such an order set aside is by appealing against the judgment or order; Babatunde v. Olatunji (2000) 2 S.C. 9, (2000) LPELR-697 (SC).
The learned trial Judge graphically put it this way: A Court of law would not just wake up on its own, look for a null judgment and set it aside. It is for the affected party to apply to have it set aside. When he fails to do so, the order subsists. A litigant cannot without the benefit of a Court order, declare a judgment or order of Court to be a nullity.
However, the application to set aside the said order made by the District Court can be made subsequently as in the Appellants sought to do in the lower Court. The order was made in the air, as it were, without jurisdiction. The said order was a null order and the Appellants are entitled ex debito justitiae to have it set aside. The learned trial Judge ought to have set the said order aside; Dingyadi v INEC (2010) 18 NWLR (PT 24) 154 SC; African Continental Bank Plc. v Losada (Nig)
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Ltd (1995) 7 NWLR (PT 405) 26; (1995) LPELR-205 (SC). The said null order is here by set aside.
In this circumstance, although the suit before the District Court and before the lower Court were in respect of the same piece of land; and the parties were the same, there was no decision on merit upon which to ground a plea of estoppel per rem judicata. The doctrine is thus inapplicable herein. The learned trial Judge ought not to have accorded any weight on the said Exhibit A as the order relied upon was a nullity.
Issue 1 is thus resolved in favour of the Appellant.
On Issue No 2 and Issue No 3 it was submitted that the Respondent as plaintiff before the lower Court did not establish the identity of the land in dispute. Exhibit C, the Respondent’s Survey Plan had extended beyond the Appellants’ Survey Plan, Exhibit D. Parcels of land belonging to other families were included in Exhibit C. Even if the admissibility of the survey plan was not objected to by the Appellants’ Counsel at the hearing, the trial Court ought to have evaluated the evidence and ascribed probative value to it. The identities of the lands were not the same and there was
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no application to join the other families whose parcels of land were included in Exhibit C, the Respondent’s Survey Plan. It was submitted that having failed to join the owners of the other parcels of land, the action cannot be effectually and completely settled. The case of Cotecna v Churchgate Ltd 44 NSCQR 641 at 649, inter alia, were relied upon.
The Respondents, as plaintiffs in the lower Court, tendered the Survey Plan, Exhibit C. PWI in evidence, gave the boundaries of the land in dispute. Both DW1 and DW2 said under cross examination, at pages 158 and 161 of the Record of Appeal that they were aware that the land in dispute in the present case was the same land as was in dispute at the District Court. In other words, the Respondents had no uncertainty about the land in dispute. The Appellants on their part did not object to the admissibility of the survey plan of the Respondent at the lower Court and in fact admitted that it was the same land as they, as plaintiffs therein, had taken action over in the District Court. There was thus no uncertainty about the land in dispute and its boundaries. A survey plan may not always be necessary if the
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boundaries of the land are not uncertain; Aremu v. Adetoro (2007) 7 S.C. (Pt 11) 1.
The said survey plan, Exhibit C, was admitted in evidence without objection. The allegation that there are other families whose parcels of land were included in Exhibit C is not in evidence. In any event, if there were indeed other families affected by the judgment who were not made parties, the failure to join them will not make the decision a nullity; Okoye v. NCFC Ltd (1991) 7,S.C. (PT 111) 33; Bello v INEC (2010) LPELR-767 (SC). The complaint should come from the families who allegedly own land situate within the land in dispute as submitted by the Respondents in their Survey Plan; Chime v Chime (2001) I S.C. (PT 11) 1. And, it has been held that a person who knowingly stands by during litigation concerning title to the land in which he claims ownership or an interest in, in circumstances in which he might reasonably be expected to apply to be joined as a party to establish his claim, may find himself bound by the judgment in the suit even though he was not a party to the suit in which the judgment was given; Onwu v Nka (1996) 7 NWLR (PT 455) 1, (1996) LPELR-2711
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(SC), Per Iguh, JSC. These are not reasons to sustain an application to set aside a judgment given in that circumstance. Issues 2 and 3 are therefore resolved against the Appellants.
All considered, this appeal is meritorious and hereby succeeds. The judgment of the High Court of Akwa Ibom State, Uyo Judicial Division Coram Hon. Justice Andrew E. Okon delivered on October 31, 2012 in Suit No. HU/85/91 is hereby set aside.
Other Citations: (2016)LCN/8870(CA)
