OBIANYO & ORS v. IFEKAUCHE & ORS (2020)

OBIANYO & ORS v. IFEKAUCHE & ORS

(2020)LCN/15454(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Monday, November 16, 2020

CA/AW/886/2018

RATIO

RES JUDICATA: CONDITIONS TO BE SATISFIED TO PUT A STOP TO RE-LITIGATION OF A PREVIOUSLY DETERMINED ISSUE IN CONTROVERSY

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Rita Nosakhare Pemu Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

1. SAMUEL OBIANYO 2. FELIX NWOSU 3. MR. INNOCENT NWOSU APPELANT(S)

And

1. FERDINAND IFEKAUCHE 2. TIMOTHY ELISIONU 3. MICHAEL MUOFUNANYA 4. NNORUKA EMEJULU 5. BENNETH ANANTI 6. IFEANYI NKEMDIRI RESPONDENT(S)

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellants in this appeal as Plaintiffs at the trial Court took out a writ of summons filed on the 30th of November, 2001 against the Respondents herein as Defendants at the High Court of Anambra State, Idemili Division holden at Ogidi, Claiming:
a. A declaration that the 1st Plaintiff is the person entitled to the grant of the Statutory Right of Occupancy in respect of the piece and/or parcel of land within Ohia Ulogwe, lying, being and situate at Umuokokpa Aboji, Oba in Idemili Local Government Area of Anambra State.
b. A declaration that the entrance into the said land and defacing of same by the Defendants without any authority from the 1st Plaintiff is wrong.
c. A perpetual Injunction restraining the Defendants either by themselves, their Agents, Servants and/or privies from entering, trespassing and/or doing anything whatsoever on the said land which is against the proprietary interest of the 1st Plaintiff.
d. The Sum of N25,000,000 (Twenty Five Million Naira) only for trespass.

The 1st – 6th Defendants (Respondents herein) filed their joint Statement of Defence on the 12th of March, 2008.
The Plaintiffs filed their reply to the Statement of Defence as well as their Defence to the Counter Claim of the 1st – 6th Defendants.

At the conclusion of pleadings, the 1st – 5th Defendants filed a motion on Notice on the 10th of July, 2008 challenging the jurisdiction of the Court to entertain the Suit on grounds of Res Judicata and the Plaintiffs/Appellants filed a counter Affidavit on the 18th of July, 2008.
Several further Affidavits and further counter Affidavits were filed by both parties.

On the 23rd of October, 2009, the lower Court upon an Application by Counsel to the 1st to 6th Defendants/Respondents made an order that “the Plaintiffs Survey Plan No AC/LD.40/2006 be sent to the Surveyor General of Anambra State. The Surveyor General shall compare it with Plan No MEC/12/54 counter signed by the AG Director of Surveys Enugu on 19/10/60 to determine whether the land covered by Plan No AC/LD/40/2006 is the same or forms part of the land covered by Plan No MEC/12/54……”

Counsel for the Plaintiffs/Appellants challenged the said order and deposed to an Affidavit and also sought leave to Appeal which Application was refused.

The learned trial Judge on the 12th day of June, 2018 delivered Judgment wherein he dismissed the Appellants’ case on grounds of Res Judicata and awarded costs of N100,000 against the Appellant.
This Appeal is predicated on the said Judgment.

Learned Counsel for the Appellant C. I. Enweluzo, SAN distilled two issues for determination thus:
1. “Whether it is right for the learned trial Judge to rely on Survey Plan No MEC/12/54 certified by the Surveyor General of Anambra State to decide the issue of res judicata even when an exact copy of the said Survey Plan has been declared by the Supreme Court as not being “an off-shoot of the original one used in the case under reference”, i.e Suit No O/83/56 and Appeal No FSC/240/63.
2. Whether in the circumstance of this case and state of evidence and processes before the trial Court the Plaintiffs can rightly be said to have acquiesced or consented to the use of the alien or special procedure foisted on the parties by Nweze, J. and adopted by the trial Court in determining the Suit.”

This Appeal came up for hearing on the 7/7/2020. C. I. Enweluzo (SAN) appeared for the Appellant/Applicant while the Respondent was represented by Oguguo Ezema. Ezema undertook on behalf of the Respondents not to change the character of the land pending the determination of the Appeal. The Appeal was then adjourned to the 23rd of September, 2020 for hearing.

On the said 23/9/2020, C. I. Enweluzo SAN appeared for the Appellant while J. O. Obiasi who held brief for Offia SAN appeared for the Respondents. Obiasi informed Court that the delay was because they intend to compile and Transmit Records. Enweluzo SAN informed Court that the Record of Appeal was deemed properly filed after the Court granted an Application filed on the 27/12/18.
This Court then allowed Enweluzo SAN to adopt his brief since it was obvious that Counsel for the Respondents had no reason or justification not to proceed and adopt his brief.

After Judgment was reserved on the 23/9/20, Counsel for the Respondents Oguguo Ezema brought an application filed on the 30th of September, 2020. The Application was to “arrest” the Judgment already reserved.

However Ezema later apologized for bringing the said Application and withdrew same. The Court awarded One Hundred Thousand Naira as costs against the Respondents in view of the fact that Enweluzo SAN said he came all the way from Port-HarCourt.

Having given a summary of relevant facts in this Appeal, I will not bother to reproduce the submissions of Learned Senior Counsel for the Appellants, C. I. Enweluzo, SAN as argued in his brief of argument filed on the 17th of May, 2019 and deemed properly filed on the 7th of July, 2020.

Even though Learned Senior Counsel for the Appellants formulated two issues for determination, issue one is most apt and captures the very essence of this appeal.
In the determination of this Appeal therefore, I shall make more use of issue one as formulated by Learned Senior Counsel for the Appellants.

This Appeal revolves round the application made by the Respondents herein as Defendants at the lower Court challenging the jurisdiction of the lower Court on grounds of Res Judicata.
“The plea of res judicata arises where an issue of fact has been judicially determined in a final manner between parties by a Court or tribunal having jurisdiction, concurrent or exclusive in a matter and the same issue comes directly in question in subsequent proceedings between the parties or their privies. Thus, the parties affected are estopped from bringing a fresh action before any Court on the same case and on the same issue already pronounced upon by the Court in a previous action.”
See DOKUBO V. OMONI (1999) 8 NWLR (PT 616) P. 647.
OSHODI V. EYIFUNMI (2000) 7 SC (PT. II) P. 145.

A party who raises the plea of res judicata, which serves to put a stop to re-litigation of a previously determined issue in controversy must satisfy certain conditions for it to be successful. The conditions were itemized by the Apex Court in ODUTOLA V ODERINDE (2004) 12 NWLR (PT. 888) 574 at 585, as follows:
a. The Parties (or their Privies) are the same in the previous Suit as in the present Suit.
b. The issue and the subject matter are the same in the previous Suit as in the present Suit.
c. The adjudication in the previous case must have been given by a Court of competent jurisdiction; and
d. The previous decision must have finally decided the issues between the parties.
In a plea of res judicata, the onus of proof lies with the party pleading res judicata and in doing so, any failure to satisfy any of the above conditions means failure of the plea of res judicata in its entirety. See ODUTOLA V. ODERINDE (Supra) at 585.
It is on Record that the Respondents went to the Supreme Court and Certified Plan No MEC/12/54. When it was brought to the attention of the then Chief Justice of Nigeria, the same Supreme Court denounced same and as a result the said Plan No MEC/12/54 earlier certified by the Supreme Court was de-certified by the same Supreme Court.
For ease of reference let me reproduce Exhibit ZD dated 29/6/2009.
“Ref. No FSC/240/1963/56
29th June, 2009.
The Chief Registrar,
High Court of Justice,
Onitsha, Anambra State.
Sir,
RE: CERTIFICATION OF THE DISPUTE PLAN IN RESPECT OF SUIT NO FSC/240/60 – BETWEEN IGBONEKWU UYAELUNMUO & 6 ORS (FOR THEMSELVES AND PEOPLE OF ABOJI OBA) VS. NWILO IGBOANUGO & 3 ORS (FOR THEMSELVES AND THE PEOPLE OF ISU OBA).
The above subject matters refer, please. The said matter relates to a case which this Honourable Court decided on Wednesday the 18th day of November, 1964.
However, by a letter dated the 11th day of May, 2009 signed by one Sir C. I. Enweluzo and addressed to the Honourable the Chief Justice of Nigeria which sought His Lordship’s clarification on the validity or otherwise of a Plan Exhibit purported to have emanated from this Court, which has been tendered in a case now pending before your Court. I am directed to inform you that the said Exhibit Plan is not an off-shoot of the original one used in the case under reference.
I am further directed to state that the Exhibit Plan said to have been signed by an officer of this Honourable Court was done in error as it was never authorised at all and accordingly it should therefore be disregarded for all its intents and purposes.
In the interim, the bearer of letter, Mr. S. A. Raji has been mandated and authorised to personally deliver this letter to your office and also inquire about the state of affairs as it relates to this matter in order to give a situation report back to this Honourable Court.
Your co-operation in this regard will be most welcome, please.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Yours Faithfully,
Sunday Olorundahunsi
Deputy Chief Registrar
For: the Hon. Chief Justice of Nigeria.”
It is in evidence that the Respondents went to the office of the Surveyor General of Anambra State and also got Plan No MEC/12/54 certified as the Plan used in deciding Suit No O/53/56 and Appeal No FSC/40/63. The Appellants are contending that the said Plan was not the one used in deciding Suit No O/53/56 and Appeal No FSC/240/63. This according to Counsel for the Plaintiffs (Appellants herein) is because the said plan does not have any feature indicating that same was used in deciding Suit No O/53/56 and Appeal No FSC/240/63. Also that the Plan does not bear the names of the parties to this Suit, no stamp and seal, did not verge the area in dispute and the boundaries, neither did it indicate whether the Plan was that of the Plaintiffs or Defendants (Appellants or Respondents herein).
Both parties agree that Suit No O/53/56 and Appeal No FSC/240/63 were decided using Plan MEC/12/54 admitted in evidence as Exhibit in Suit No O/53/56.
Parties are in dispute as to whether the versions of Plan No MEC/12/54 exhibited by the Defendants/Respondents in their plea for res judicata are the same as the one used in deciding Suit No O/53/56 and Appeal No FSC/240/63. This to me is the crux of the matter.
Faced with different versions of Plan MEC/12/54, one from the office of the Surveyor General of Anambra State and the same Plan a copy of which the Supreme Court denounced and stated in very clear terms that “the said Exhibit Plan is not an off-shoot of the original one used in the case under reference”. Should the lower Court have relied on a copy of the Exhibit B1 which was certified by the said office of the Surveyor General of Anambra State and which the Supreme Court stated categorically that it should be disregarded for all its intents and purposes the said Exhibit Plan not being an off-shoot of the original one used in the case under reference?
I have painstakingly gone through the letter written on behalf of the then Chief Justice of Nigeria by the Deputy Chief Registrar of the Supreme Court wherein he stated clearly that the Exhibit Plan is not an off-shoot of the original one and therefore should be disregarded for all intents and purposes. Having brought this letter to the notice of the lower Court by tendering same, the learned trial Court had no reason or justification to have jettisoned the letter from the then Chief Justice of Nigeria and preferred the version tendered from the office of the Surveyor General of Anambra State. The DPWI Charles Uttoh at the time he testified was retired and could not even be described as a staff of the office of the Surveyor General of Anambra State.
Considering Exhibit ZD, the letter from the then Chief Justice of Nigeria which stated that the said Plan should be disregarded for all intents and purposes, the safest thing to do in the circumstances of the case was to set the matter down for trial on the merits rather than determine the issue of res judicata on a Plan that was denounced, discredited and completely disregarded by the then Chief Justice of Nigeria.
It was improper for the learned trial Judge to have ignored, jettisoned and discarded Exhibit ZD and I so hold.
As stated earlier in ODUTOLA V. ODERINDE (Supra) failure to satisfy any of the conditions for granting the plea of res judicata means failure of the plea in its entirety.

There is also nothing to show that Counsel for the Appellants acquiesced or consented to the special procedure adopted by the trial Court. Every Court, particularly trial Courts have a duty to painstakingly look at every evidence, documentary or oral placed before it prior to reaching a decision. In the instant case, the lower Court in its Judgment completely ignored relevant facts clearly made available to it. In this case, the letter written by the former Chief Justice of the Federation clearly directing that the said Plan should be disregarded for all its intents and purposes.
Having ignored the said letter and decided to embark on his own journey, the decision reached by the lower Court cannot stand as it is a miscarriage of justice. It would have been safer in the circumstance to hear and determine the matter on its merits.

In the circumstance, the two issues are resolved in favour of the Appellants against the Respondents. There is therefore merit in this Appeal and it is hereby allowed.

The Judgment of the lower Court in Suit No HID/183/2001 delivered on the 12th day of June, 2018 by Nweze J, sitting in the Ogbaru Judicial Division of the High Court of Anambra State holding at Atani is hereby set aside.

This Suit is remitted back to the Chief Judge of Anambra State for assignment to another Judge to be determined on the merits.
I make no order as to costs.

RITA NOSAKHARE PEMU, J.C.A.: I had read before now the lead draft judgment delivered by my brother C. E. NWOSU-IHEME, JCA.
I agree with her reasoning and conclusions.
I allow the appeal.
No order as to costs.

BITRUS GYARAZAMA SANGA, J.C.A.: I have the privilege of reading a draft of the judgment just delivered by my learned brother Nwosu-lheme JCA. I agree with and adopt the said judgment that this appeal is meritorious and it is allowed The judgment by the lower Court is set aside and the matter remitted back to the Honourable, the Chief Judge of Anambra State for reassignment to another Judge who shall determine same on the merit.

Appearances:

C. I. Enweluzo SAN, with him, P. I. Daniel Ezema Esq. For Appellant(s)

J. O. Obiasi holding brief for Affia (SAN) For Respondent(s)