Sylvester Ezekpelechi Ukaegbu & Ors Vs Duru Ononanwa Ugoji & Ors (1991)

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B.O.BABALAKIN, JSC.

This is an appeal by the defendants/appellants against the judgment of the Court of Appeal, Enugu Division, delivered on 11th July, 1988, which dismissed the appeal of the said defendants/appellants against the judgment of the High Court of Orlu delivered in Suit No.HOR/83/74 on 29th June, 1981. The facts that lead to this appeal are as follows:-

The action in this case was instituted by a writ of summons issued in the High Court of the Okigwe Judicial Division of the former East Central State of Nigeria.On the creation of the Imo State of Nigeria the case was transferred to the High Court of Justice, Orlu for hearing and determination.

The claims by the plaintiffs/respondents are as follows:- “1.  Declaration of title to all that piece or parcel of land lying, being and situate at Isieke Village Akpulu within Jurisdiction which is in  possession of the plaintiffs and more particularly delivered in a plan to be filled, annual value of which is N20.00. 2.  N400.00 being general damages for trespass. 3.  Perpetual Injunction restraining the defendants, their servants and  agents from further acts of trespass on the said land.”

In a considered judgment, the trial court granted the plaintiffs/respondents claims against the defendants/appellants but dismissed their case against the 3rd and 4th defendants. The defendants/appellants appealed to the Court of Appeal, Enugu, against the judgment entered against them and similarly the plaintiffs/respondents also cross appealed to the Court of Appeal against the dismissal of their case against the 3rd and 4th defendants.

The Court of Appeal dismissed both the main appeal and the cross appeal. The appellants in each of the appeals have now appealed to the Supreme Court against the dismissal of their respective appeals.   In this court the following Briefs of Arguments were filed and exchanged:- appellants’ brief dated 3/5/90 and Reply Brief dated 20/7/90; respondents’ brief dated 27/6/90; cross appellants’ brief in respect of cross appeal dated 5/5/90; cross respondents’ brief dated 26/5/90. In the appellants’ brief, counsel for the appellants put the issues for determination as follows:-

(1) Whether, (in an action for declaration of title to land, damages for trespass and injunction), a previous judgment pleaded by the PLAINTIFF in his STATEMENT OF CLAIM could sustain a plea of res judicata in favour of such plaintiff? (2a) Whether the Court of Appeal was right in its view that it is a mere irregularity to raise a plea of res judicatain the Statement of Claim? If the answer to 2(a) above is in the affirmative (which is not conceded);

(2b)  Whether, in the peculiar facts and circumstances of the case, the herein appellants could be said to have waived their right to complain about that said irregularity?” The respondents stated the questions for determination as follows:- “(a) Was it contrary to law for the plaintiffs/respondents to plead the proceedings and judgment of the Mbanasa Native Court in Suit No.172/28 in their Statement of Claim in the above case in support of their case? (b)(i)Were the defendants/appellants entitled to raise before the Court of Appeal without the leave of that court the question of the plaintiffs/respondents pleading the proceedings and judgment of the Mbanasa Native Court in Suit No. 172/28 in their Statement of Claim when that question was not canvassed or contested before the trial court?

(ii) Are the defendants/appellants entitled to pursue before the Supreme Court the question of the plaintiffs/respondents pleading the proceedings and judgment of the Mbanasa Native Court in Suit No. 172/28 in their Statement of Claim?” With regard to the cross- appeal the cross- appellants stated the questions for determination as follows:- “(a) Was the Court of Appeal right in determining the cross-appeal of the plaintiffs-appellants from its conclusion in the appeal of the defendants-appellants when the complaints of the plaintiffs-appellants in their grounds of appeal were distinct and different from those of the defendants-appellants in the main appeal and the cross-appeal were different and when the brief of arguments of the plaintiffs-appellants in support of their cross-appeal were not the same as those of the defendants-appellants in the main appeal. (b) Was the Court of Appeal right in dismissing the appeal of the plaintiffs-appellants when: (i)there was a finding that the land in dispute in this case is the same land as was in dispute in the Mbanasa Native Court Suit No.172/28.

(ii) the judgment in the Mbanasa Native Court Suit No.172/28 is a subsisting judgment and the defendants-respondents were and are not only bound by it but were and are also estopped from disputing the title of the plaintiffs-appellants to the land in dispute. (iii) the whole area of land verged blue in Exhibits “B” and “BI” and the land immediately south of it fall within the land claimed by the plaintiff-appellants. (iv) James Egenti never claimed nor testified that he owned any land within the land in dispute or the land shown as his in Exhibits “B” and “BI”. (v)  the evidence in support of the plaintiffs-appellants’ case was in the main appeal accepted by the trial court.” 4 The respondents to the cross- appeal put the issues for determination thus:-

“(1)Whether the Court of Appeal failed or neglected to consider the case put before it by the cross/ appellants? If the answer to the above is in the positive – which is denied -whether the said failure by the Court of Appeal occasioned such a grave miscarriage of justice that its judgment ought not to be allowed to stand? (2) Whether, in view of the concurrent findings of fact of the two lower courts, the cross/appellants are entitled to have judgment entered in their favour against the 3rd and 4th defendants?”

The submissions of counsel for the appellants in the of brief of argument filed on behalf of the said defendants/appellants and  orally before us are that in the judgment of the learned trial Judge, he held that the judgment in a native court in Suit No.172/28 tendered as Exhibit C which was pleaded in paragraph 7 of the plaintiffs’ Statement of Claim operated as res judicata against the 1st defendants/appellants and thereafter held that he was satisfied that the portion of land claimed by the 2nd, 5th, 6th, 7th and 8th defendants are so connected by locality and similarity with the portion claimed by the 1st defendant, which portion his grandfather Ukaegbu lost in Exhibit C that the plaintiffs also have posession of this area as the area the tambo swamp in dispute in Exhibit C.   That the doctrine of res judicata was not available to the plaintiffs/respondents who were plaintiffs in the trial court. That the law has long since been settled in Salawu Yoye v.Olubode & Ors. (1974) 1 ANLR (Pt. 2) 118 that res judicata by its very nature has no place in the plaintiffs’ Statement of Claim. That the doctrine of res judicata does not apply in this case.   That the Court of Appeal was in serious error when it treated the fact that plea of res judicata was raised in the Statement of Claim as a mere irregularity which herein appellants have waived by their continued participation in the case after issues had been settled.

That raising a plea of res judicata in the Statement of Claim is not a mere irregularity. It is a default which strikes at the very essence and nature of that plea. That a successful plea of res judicata robs the court of jurisdiction. He urged this court to allow the appeal. The submissions of counsel for the plaintiffs/respondents in the brief filled on behalf of the said plaintiffs/respondents and orally before us are that by Order 33 rule 5 of Rules of High Court of Imo State applicable to this case the plaintiffs/respondents are bound to lead all material facts on which they relied. He then cited the provisions of Sections 53, 54(1) and 54(2) of Evidence Act which permits parties to plead previous judgments obtained in their favour in a subsequent action.

That the plaintiffs/respondents were entitled to plead and rely on the proceedings and the judgment in Exhibit C. He submitted that it has been held in case of Ayiwe Odjerwedje & Anor v. Madam Echanokpe (1987) 1 NWLR (Pt 52) 633 at 644, Chikwendu v. Mbamali & Anor (1980) 3-4 S.C.31 AT 47-48; Ezewani v Onwordi & Ors. (1986) 4 NWL R (Pt 33) 27 that “it has since been settled that although the plea of estoppel is a shield for the protection of a defendant, it can also validly be employed as a sword by a plaintiff.”   That as Exhibit C as pleaded raised estoppel is per rem judicatam against the defendants-appellants the lower courts were bound to give effect to the said proceedings and judgment.