EDEM & ORS v. NSEMO
(2022)LCN/16407(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Tuesday, March 08, 2022
CA/C/17/2016
Before Our Lordships:
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Balkisu Bello Aliyu Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
1. ESI MFAM (CHIEF) PATRICK AGBOR O. EDEM 2. HON. STEPHEN BASSEY 3. MRS. SYLVIA ETIM 4. SIR. FRANCIS ANSA (KSJ1) (FOR THEMSELVES AND ON BEHALF OF KASUKQUA CLANS CALABAR) APPELANT(S)
And
CHIEF FELIX NSEMO RESPONDENT(S)
RATIO:
THE PLAINTIFF MUST SUCCEED ON THE STRENGTH OF HIS CASE
It is well established law that in an action for declaration of title, the plaintiff must succeed on the strength of his case and not on the weakness of the defendant. Thus, the onus in a claim for declaration of title is on the party who seeks the declaration. This he can do by satisfying any of the five ways of proof of title to land prescribed by the apex Court in IDUNDUN V. OKUMAGBA (1976) 9–10 SC 227. The law is also settled that declaratory relief will not be granted even on admission and that there is no burden on the defendant to prove his own title to a disputed land where he does not file a counter-claim. In other words, it is only when the claimant has made out a case that the defendant would be required to proffer evidence in rebuttal. See EDOSA V. OGIEMWANRE (2019) 8 NWLR (prt. 1673) 1 at 15. MUHAMMED LAWAL SHUAIBU, J.C.A
THE LEGAL RIGHT O ENFORCE AN ACTION IS NOT A RIGHT IN PERPETUITY
The essence of a limitation law is that the legal right to enforce an action is not a right in perpetuity but a right generally limited by statute. Thus, where the action is instituted outside the prescribed period, the Court is divested of jurisdiction to entertain the matter, as it is no longer a live issue. See EGBE V. ADEFARASIN (NO.2) (supra), AMADI V. INEC (2013) 4 NWLR (prt. 1345) 595 and HASSAN V. ALIYU (2010)17 NWLR (prt.1223) 547. MUHAMMED LAWAL SHUAIBU, J.C.A
THE JURISDCTION OF A COURT TO DETERMINE A MATTER
Where an issue of fact has been judicially determined in a final manner between the parties or their privies by a Court having jurisdiction in the matter and the same issue comes directly in question in subsequent proceedings between parties and their privies, the principle applies. Thus, the principle operates where the subject matter and the question raised in the second matter are the same as the subject matter and question raised and decided in the first matter. Where successfully raised, it ousts the jurisdiction of the Court to determine the matter. See AJIBOYE V. ISHOLA (2006) 13 NWLR (prt.998) 628 and IGBEKE V. OKADIGBO (2013) 12 NWLR (prt. 1368) 225. MUHAMMED LAWAL SHUAIBU, J.C.A
THE LEGAL CONCEPT OF THE ABUSE OF JUDICIAL PROCESS
In MESSRS NV SCHEEP & ANOR V. THE MV’S ARAZ & ANOR (2000) 15 NWLR (prt.691) 622 at 664, Karibi-Whyte, JSC said-
“The legal concept of abuse of judicial process or the abuse of the procedure of Court is very wide. The scope and content of the circumstances of the material facts and conduct, which result in such abuse, are infinite in variety. It does not appear that the category can be closed. New unforeseen conduct from the stratagem of the plaintiffs can give rise to the abuse. An abuse may be constituted through a proper and legitimate conduct in bringing actions even in the exercise of an established right in the manner or time of instituting actions. MUHAMMED LAWAL SHUAIBU, J.C.A
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): At the High Court of Cross River State sitting at Calabar, the Appellants in this appeal as claimants, took out a writ of summons against the respondent herein and sought the following declaratory and injunctive reliefs:-
1. A declaration that the claimants are entitled to the statutory right of occupancy over the area of land in dispute within Ikot Ansa Agbor area of Kasuk lands and described in plan No. ASC/CR/EBA/597 by surveyor E. B. Arop dated 22/02/2014 made by the defendant without the consent and authority of the claimants.
2. A declaration that the claimants are entitled to the statutory right of occupancy over the land in dispute known to the parties and shown in the pictures taken and further described as plot 13/15 Felix Nsemo Drive, Calabar, behind Cross River State Secretariat on Murtala Mohammed Highway, Calabar.
3. An order canceling the approval for, and Chief Nsemo Layout, including all leases, agreements and whatever transactions entered into by the defendant concerning the two pieces of land described above.
4. An order of perpetual injunction restraining the defendant by himself, his agents or servants from further interfering or entering upon or dealing with the land above in any manner whatsoever without the consent and authority of the claimants.
5. N50 Million damages for trespass.
Upon the settlement and exchange of pleadings, the trial commenced with parties leading oral and documentary evidence. The trial Court in its judgment found for the defendant now respondent inter alia on page 179 of the record as follows:-
“I have taken into consideration the argument raised. I agree substantially with learned senior counsel that the suit amounts to and is caught by estoppels, abuse of Court process and absence of proof of the essentials of the case.
Finally, it is contended that the case is caught by the time bar. By Section 1 of the Limitation Law of Cross River State, 2004 there is evidence that the defendant has been on the property since 1978, 2001 and 1994. The limitation period is 10 years. Obviously, for all the years that the defendant has been on the land, the claimants have been in coma. They therefore cannot wake up more than 10 years after to lay claim to apiece of land which they cannot get judicial remedy. Accordingly, I also agree that the claimants are statute barred from laying claim to the land in dispute. On the whole, the claim fails in its entirety and is dismissed.”
Miffed with the above, appellants appealed to this Court through a notice of appeal filed on 24/12/2014. The said notice of appeal contains eight (8) grounds of appeal at pages 172–175 of the record.
In line with practice of this Court, parties filed and exchanged briefs of argument. In the appellants’ brief of argument, settled by Chief Orok I. Ironbar, the following four issues are nominated for determination:-
1. Whether the trial Court understood what it was called upon to determine in its assessment and interpretation of evidence or showed readiness to accept respondent’s testimonies even where not backed by evidence.
2. Whether the trial Court ignored the unrebutted evidence of ownership of the land by the appellants and their acts of ownership etc. in reaching its decision.
3. Whether appellants’ case was caught by the doctrine of estoppel per rem judicatem, and/or was an abuse of process and/or was statute barred.
4. Whether the trial Court in this matter by the decision has not misinterpreted and misapplied the decisions of other Courts while wrongly placing the onus/burden of proof on the appellants.
The respondent’s brief of argument was settled by Chief A. O. Mogboh, SAN and in it, four issues are also nominated for determination of this appeal thus:-
1. Whether the appellants’ brief of argument is irregular for not affixing to it stamp and seal as mandated by the rules.
2. Whether the appellants adduced credible evidence in proof of their case.
3. Whether this suit does not amount to abuse of the process of Court and whether the doctrine of estoppel per rem judicata does not apply.
4. Whether the appellants’ case is not statute barred.
Arguing issues Nos. 1, 2, and 3 together, learned counsel for the appellants contended that in his judgment now on appeal, the learned trial Judge did not put down the evidence adduced by the respective parties on the imaginary scale and therefore the judgment was deficient in all material respect. He submitted that had the trial Judge applied the indices as emanated in the case of OKULATE V. AWOSANYA (2000) 2 NWLR (prt. 646) 530 AT 546, he would have entered judgment in favour of the appellants. Still in argument, counsel argued that appellants have pleaded and led evidence that Ntoe Odo Edem founded the land in dispute and controls same till date but the trial Court only noted the appellants’ argument but made no findings thereon one way or another. He referred to BALOGUN V. LABIRAN (1988) 3 NWLR (prt.80) 66 and AGU V. NNADI (2002)18 NWLR (prt. 798) 103 at 119 to contend that trial Courts must decide on all issues raised before them and that a judgment is flawed, if a vital issue in the case is left unresolved. Counsel submitted that whatever defect found in the appellants’ case be it an abuse of process or being caught by statute of limitation, the trial Court was under obligation to evaluate the case put forward by the parties and make finding on ownership first.
In further contention, counsel submitted that apart from proving their ownership through traditional history, appellants had further proved their title through evidence of numerous and positive acts of ownership over a sufficient length of time and by acts of long possession and enjoyment of the land as well as by proof of possession of adjacent lands but the trial Court made no finding on it.
It was also the contention of the appellants that their subpoenaed witness CW2 tendered 4 survey plans of the land in dispute as Exhibits 18, 18A, 18B and 18C which shows that the respondent has clear knowledge of these land but the trial Court held that the appellants have not proved their case against the respondent which counsel contend that the trial Court did not have a full appraisal of the appellants’ case and the respondent’s defence.
On estoppel, counsel submitted that there was no evidence before the trial Court and that it was on the basis of respondent’s counsel that the Court arrived at that conclusion. And for estoppel per rem judiciata to apply, the following ingredients must be proved:
(a) The parties or their privies must be the same in both the previous and present suit;
(b) The subject matter must be the same,
(c) The judgment was made by a competent Court, and
(d) The judgment relied upon to support the plea of estoppel must be valid and subsisting.
He referred to OLORUNTOBA OJU V. ABDUL-RAHEEM (2009) 13 NWLR (prt. 1157) 83.
As regards the issue of abuse of Court’s process, counsel contends that having not tendered the judgment in suit NO. HC/378/2010 by the respondent who relied on it, the trial Court ought not rely on it because it does not form part of the evidence before it. Furthermore, suits Nos. HC/378/2010 and HC/15/2002 having been decided in favour of the appellants cannot constitute an abuse of Court’s process as they strengthen the appellants’ case.
Finally, on whether the appellants’ action was caught by statute-barred, counsel submitted that the trial Court was oblivious of Sections 2 (1) and 7 of the Cross River State Limitation Law which provides that time only begins to run when the claimant becomes aware of the adverse possession and that the presence of the respondent on the land was not known to the appellants. Also, the land in dispute being subject to customary transaction is not caught by any limitation law.
On issue No.4, the appellants’ contention is that suit No. HC/378/2010 from where the respondent’s purported plan No. ASNL/CR/1185/LD (Exhibit 21) was made, the judgment was that the land therein in dispute belonged to them and that plan No. ASNL/CR/1185/LD (Exhibit 21) was not litigated in Suit No. CA/E/210/96. However, the respondent succeeded in misleading the trial Court to have found that Suit No. HC/378/2010 is an abuse of process and thereby misinterpreted and misapplied evidence before another Court. Counsel thus submitted that in reaching the above decision in the absence of evidence, the trial Court wrongly placed the onus of proof on the appellants inspite of the fact that it was the respondent who pleaded estoppel that has the burden to prove same.
On the part of the respondent, counsel submitted in respect of issue No.1 that the failure to affix and emboss the seal and stamp approved by the Nigerian Bar Association to the appellants’ brief of argument rendered same incompetent. In aid, counsel relied on Rule 10 (1), (2), and (3) of the Rules of Professional Conduct for Legal Practitioners, 2007 and the case of YAKI & ANOR V. BAGUDU & ORS(2015) LPELR–25721.
Counsel submitted further that although such process can be regularized but the fact that same has already been acted upon administratively, it is too late in the day to withdraw it at this stage for the purposes of regularization and same is liable to be struck out.
On issue No.2, counsel submitted that by virtue of Sections 131, 132 and 134 of the Evidence Act, 2011, the burden lies on the appellants to prove the assertion in their claims. He also referred to AKINFOSILE V. IJOSE (1960) 5 FSC 192 to the effect the person who makes allegations in a pleading is, by the ordinary rules of pleading bound to produce evidence to substantiate them as part of his case and it is not sufficient for him to rely upon the emergence of evidence from the opposite party for the purpose of proving allegations in his own pleading.
Counsel contends further that from the averment in paragraph 3 of the statement of claim, appellants relied on traditional history but failed to show how their ancestors have come to own the land in the first place and how the land has devolved over the years in their family until it got to the appellants. In other words, the appellants according to the respondent did not name any of their ancestors who allegedly founded the land or how the land was founded and the particulars of intervening owners through whom they claim the land in dispute. He referred to MOGAJI V. CADBURY NIG. LTD (1985) 2 NWLR (prt.7) 390, OJO V. ADEJOBI (1978)7 SC 65 and ELIAS V. OMO-BARE (1982) 5 SC 25.
Counsel also contended that this same traditional history was earlier pleaded in Suit No. C/88/76 (Exhibit 8A) by the appellants over a larger area of land wherein the High Court granted title unto the appellants but both the Court of Appeal and Supreme Court dismissed their claim. It was similarly the same traditional history that was pleaded in Suit No. HC/15/2002 in which the appellants, lost at the Supreme Court. He therefore submitted that if the Courts have rejected traditional history pleaded by the plaintiffs over the same piece of land in Suit Nos. C/88/76, SC/96/2002 and HC/12/2002, this Court cannot allow them to succeed as they cannot be allowed to re-litigate the same issue over and over again.
It was also contended on behalf of the respondent that the appellants’ case is also based on alleged forgery of document of root of title and that when a party pleads forgery, it must be proved beyond reasonable doubt. Counsel submitted that when particulars of forgery pleaded do not exist and no evidence was given about those particulars, then there is no forgery. He referred to NWOBODO VONOH (1984)1 SC 1 and 2.
On the appellants’ claim for an order canceling the approval for and Chief Nsemo Layout including all leases etc., counsel submitted that the approving authority that is, Town Planning Authority or Cross River State Government who would be affected by the decision ought to have been made party. Thus, where as in this case, all the persons necessary for the invocation of the judicial powers of the Court are not before it, the Court will have no jurisdiction to grant the relief in the suit. He relied on the authority in the case of OJUKWU V. OJUKWU (2000)11 NWLR (prt. 627) 92 and NABARUMA V. OFODILE (2004) 13 NWLR (prt. 897) 599 at 618.
As regards respondent’s issue No 3, dealing with abuse of Court’s process and the doctrine of estoppel, counsel referred to the averments in paragraphs 8, 9, and 10 of the further amended statement of defence and paragraph 5 of appellant’s reply to amended statement of defence to contend that Suit No.3 HC/43/2012 and HC/15/2007 plot 13/15 Felix Nsemo Drive, Calabar, one of the lands in dispute in which the appellants herein were the claimants in both suits. As admitted in the reply to defence, the appellants had contested the authenticity of the basis of title of the respondent’s vendors.
In further contention, counsel also referred to paragraph 17 of the appellants’ statement of claim where appellants asserted that the present respondent was a defendant in Suit No. 378/20110 instituted by the appellants against him and that the defendant therein made this plan NO: ASC/CR/EBA/597 for that case. Also, the appellants have admitted that this present action for which the respondent has now been sued was a subject matter in previous Suit No: HC/378/2010 over the same pieces of land and that Plan NO: ASC/CR/EBA/597 made on 22/2/2004 was inserted inside the plan defendant made for the suit. Counsel therefore submitted that in the suit the appellants are simply calling on this Court to review the authenticity of the respondent’s root of title which the appellants admitted was already an issue before other Courts of competent jurisdiction and that the abuse according to counsel lies in the multiplicity and the manner of the exercise of the right and thus it consists of the intention, purpose or aim of the person exercising the right to harass, intimidate and annoy the adversary and interfere with the administration of justice. Reliance was placed on CHIEF VICTOR UMEH & ANOR V. PROFESSOR MAURICE IWU & ORS (2008) LPELR–3363 (SC) and SARAKI V. KOTOYE (1992) 9 NWLR (prt. 263) 156 at 188–189 on the circumstances giving rise to an abuse of judicial process.
Again, it was also the contention of the respondent that Exhibits 22 and 23 that is document registered as 51/51/144 and 88/88/163 relates to the two pieces of land inside the entire area of land litigated by the claimants in C/88/76 which terminated at the Supreme Court in Suit No: SC/96/2002. That being the case, counsel argued that appellants cannot challenge the authenticity of this document in this suit which had been presented by the appellants before another Court. And the mere fact that the vendors did not appeal is irrelevant as there was an appeal by others affected by the judgment. Thus, by averring that the respondent had changed his root of title because his vendors lost in Suit No: C/88/76 shows that the land in question is a subject matter in Suit No. C/88/76 as such the lower Court was right in dismissing the case for abuse of Court’s process and being caught by the doctrine of estoppel.
Finally, on whether the appellants’ case is not statute barred, counsel argued that the first area in Survey Plan No: ASC/CR/EBA/597 consists of two contiguous parcels of land which the respondent acquired separately from different vendors in 1978 and 2001 and upon acquiring the land, the respondent had been exercising acts of possession over the land. The first parcel measuring about 2.9 hectares is shown in Survey Plan No: CD/CR/44/89 while the second parcel measuring about 3,628.7 square meters is shown in Survey Plan No: ASC/CR/EBA/597 was prepared in 2004 to cover the two parcels of land. These two were registered as 51/51/144 and 88/88/163 of the Cross River State Land Registry.
The second area where the respondent resides according to counsel was given to him in 1994 by the Government of Cross River State and registered as 86/86/51 on Certificate of Occupancy No: CA/53/38/97. The leases registered as 51/51/44 and 88/88/97 inclusive of the one registered on Certificate of Occupancy dated CA/53/38/97 are all more than 10 years as stipulated by the limitation law.
Counsel contends further that respondent has been in occupation of plot 13/15 Felix Nsemo Drive, Calabar for over 30 years. He submitted that proceedings cannot be brought because the period prescribed by the limitation law has elapsed. In aid, counsel referred to paragraph 19 of the Further Amended Statement of defence and the cases of EGBE V. ADEFARASIN (1987) NWLR (prt.47)1 and IBRAHIM V. JUDICIAL SERVICE COMMITTEE KADUNA STATE (1998)14 NWLR (prt.584) 1 at 32.
Having considered the respective argument of counsel in relation to their various formulations, it is my view that the four issues nominated by the appellants can be condensed into the respondent’s issues Nos. 2, 3, and 4 for their brevity and conciseness while the respondent’s issue No.1 can stand alone being in the nature of a preliminary objection. I shall therefore utilize the four issues nominated by the respondent in determining this appeal.
Issue 1 is a challenge to the appellants’ brief of argument for failure to affix the stamp and seal of the Nigeria Bar Association as required by Rules 10 (1) of Professional Conduct, 2007. The purpose of the said Rule 10 of the Rules of Professional Conduct is that legal documents including counsel’s brief of argument shall bear the seal and stamp of the Nigerian Bar Association. It was however held in plethora of judicial authorities that the failure to affix the approved seal and stamp of the NBA on a process does not render the process null and void. It is an irregularity that can be cured by an application for extension of time and a deeming order. See YAKI V BAGUDU also reported in (2015) 18 NWLR (prt.1419) 288.
The respondent’s contention is that the appellants cannot at this stage, withdraw the appellants’ brief and that same can only be struck out for being incompetent. In WAYO V. NDUUL (2019) 4 NWLR (prt.1661) 60 per PETER ODILI, JSC at page 74 paras, B-C: said:
“Therefore theappellant not having done the needful by regularizing the defective notice of appeal and the appellant’s brief, the defect remained and since the processes were voidable and in view of the objection of the 1st respondent they remained defective and produced the incompetence of the appeal as being espoused by the 1st respondent. It follows that there is no way of wriggling out of the authority of YAKI V. BAGUDU (2015) 18 NWLR (prt.1491) 288 in which the Supreme Court had laid down what is being done in the event of a document filed by a legal practitioner without the legal seal and stamp of that practitioner.”
Unlike the situation in the above case, and since the offending document is the appellants’ brief of argument alone without the notice of appeal, same in my view can be remedied at any stage in the proceeding by an application for and production and fixing the seal. Again, failure to affix the NBA seal and stamp cannot also in my view take away the right of a party to fair hearing. This issue is therefore resolved in favour of the appellants.
Issue No.2 deals with proof that is, whether the appellants as claimants have proved their title to the land in dispute.
It is well established law that in an action for declaration of title, the plaintiff must succeed on the strength of his case and not on the weakness of the defendant. Thus, the onus in a claim for declaration of title is on the party who seeks the declaration. This he can do by satisfying any of the five ways of proof of title to land prescribed by the apex Court in IDUNDUN V. OKUMAGBA (1976) 9–10 SC 227. The law is also settled that declaratory relief will not be granted even on admission and that there is no burden on the defendant to prove his own title to a disputed land where he does not file a counter-claim. In other words, it is only when the claimant has made out a case that the defendant would be required to proffer evidence in rebuttal. See EDOSA V. OGIEMWANRE (2019) 8 NWLR (prt. 1673) 1 at 15.
From the averments in paragraphs 3 & 5 of the statement of claim on page 3 of the record, appellants rely on traditional history in proof of their entitlement to declaration of statutory right of occupancy.
Traditional evidence is the evidence as to rights alleged to have existed beyond the time of living memory proved by members of the community or village who claim the land is theirs or who defend a claim of such land.
Where a party relies on traditional history to establish his entitlement to a declaration of title in his favour he must establish the following:
(a) The root of his title by pleading and leading evidence of the names and history of his ancestors who founded the land and how the land was founded and
(b) Trace his genealogical tree down from his ancestors up to the present time that is, the intervening owners through whom he claims.
The appellants in their pleadings maintained that their ancestors founded Kasuk land including the land in dispute without stating explicitly who are the ancestors as well as the particulars of intervening owners through whom they claim. I have similarly considered the evidence led through CW1 which is a verbatim reproduction of paragraph 3 of the statement of claim and same did not support their contention that their ancestor was the original founder and not to talk of how the land devolved down to them.
Counsel for the appellants has argued that apart from the traditional history they led evidence of acts of long possession and enjoyment as well as possession of adjacent lands rendering it probable that they are owners of such connected or adjacent land.
Where, as in this case, a plaintiff pleads a particular root of title and fails to prove the title as pleaded, it will be wrong for him to turn round to rely on another mode of acquisition of land not pleaded as his root of title in support of his claim. See FASORO & ANOTHER V. BEYIOKU & ORS (1988) 2 NWLR (prt.76) 263, at 271. The appellants having solely pleaded and relied on traditional history and failed, cannot turn round to rely on other modes outside their pleadings.
Furthermore, appellants challenged the evaluation of the trial Court on ownership. An appellant who relies on improper evaluation of evidence to set aside the judgment of the trial Court has the onus to identify or specify the evidence improperly evaluated or not evaluated. He has to convincingly show that if the error complained of had been corrected, the conclusion reached would have been different and in favour of the party complaining.
In the instant case, there was no particularization of the evidence not evaluated and/or wrongly evaluated. In effect, the appellants have failed to discharge the onus of showing that, if properly evaluated; the conclusion would have been favourable to their case. Issue No. 2 is resolved in favour of the respondent.
Issue No. 3 is whether the suit giving rise to this appeal amount to abuse of the process of Court and also whether the doctrine of estoppel per rem judicata applies to the suit. In MESSRS NV SCHEEP & ANOR V. THE MV’S ARAZ & ANOR (2000) 15 NWLR (prt.691) 622 at 664, Karibi-Whyte, JSC said-
“The legal concept of abuse of judicial process or the abuse of the procedure of Court is very wide. The scope and content of the circumstances of the material facts and conduct, which result in such abuse, are infinite in variety. It does not appear that the category can be closed. New unforeseen conduct from the stratagem of the plaintiffs can give rise to the abuse. An abuse may be constituted through a proper and legitimate conduct in bringing actions even in the exercise of an established right in the manner or time of instituting actions. It may be constituted by irregularities in the pursuit of actions.”
In myriad of cases, Courts gave instances of abuse of judicial process to include (a) instituting a multiple of action on the same subject matter against the same opponent on the same issues, or a multiplicity of action on the same matter between same parties even where there exists a right to begin the action; (b) instituting different action between same parties simultaneously in different Courts, even though on different grounds. (c) Where two similar processes are used in respect of the exercise of the same right, for example, a cross-appeal and a respondent notice (d) Where an application for adjournment is sought by a party to an action to bring an application for leave to raise issue of fact already decided by Courts below, (e) where there is no iota of law supporting a Court process or where it is premised on frivolity or recklessness. See JADESIMI V. OKOTIE-EBOH (1986)1 NWLR (prt.16) 264. In BANJO & ORS V. ETERNAL SACRED ORDER OF C&S (1975) LPELR–741 (SC) it was held that the term “abuse of process of the Court” connotes that the process of Court must be used only bona fide and not improperly as a means of vexation and oppression. See also SARAKI V. KOTOYE (Supra).
Estoppel per rem judicatam on the other hand is a rule of evidence whereby a party/or his privy is precluded from disputing in any subsequent proceedings, matters which had been adjudicated by Court between him and his opponent. There are two types of estoppels, namely:-
(a) Cause of action estoppel which arises where same cause of action has been 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, and
(b) Issue estoppel on the other hand, arises where an issue has earlier 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.
See ZUBAIR V. KOLAWOLE (2019)11 NWLR (prt.1682) 66 at 101.
Where an issue of fact has been judicially determined in a final manner between the parties or their privies by a Court having jurisdiction in the matter and the same issue comes directly in question in subsequent proceedings between parties and their privies, the principle applies. Thus, the principle operates where the subject matter and the question raised in the second matter are the same as the subject matter and question raised and decided in the first matter. Where successfully raised, it ousts the jurisdiction of the Court to determine the matter. See AJIBOYE V. ISHOLA (2006) 13 NWLR (prt.998) 628 and IGBEKE V. OKADIGBO (2013) 12 NWLR (prt. 1368) 225.
The respondent in paragraphs 8, 9, & 10 of the further amended statement of defence on page 55 of defence averred as follows:-
“8. The defendants aver that his land at plot 13/15 Felix Nsemo Drive, Calabar is on a portion of the Presbyterian Church Layout, now known as New Secretariat Extension. The defendant’s title to that land was derived originally from Ishie Town Presbyterian Church and the Registered Trustees of the Presbyterian Church through a Deed of Lease dated 2nd February, 1978 which is hereby pleaded as a receipt only.
9. In 2001, the claimants filed Suit No: HC/15/2002 against the defendant’s vendors Ishie Town Presbyterian Church and Registered Trustees of Presbyterian Church for declaration of title tothe land which the Presbyterian Church Layout and the defendant’s Plot 13/15 Felix Nsemo Drive, Calabar are located. The claimants’ claim was based on the allegation that the defendant’s vendors’ title document for the land is a forgery. In a judgment delivered on 15th May, 2013, the High Court dismissed the suit.
10. During the pendency of that Suit No: HC/15/2002 the claimants in flagrant abuse of Court process filed this present suit for declaration of title to plot 13/15 Felix Nsemo Drive, Calabar on the same ground of an alleged forgery of the defendant’s vendors’ title document even though the land now in dispute is a portion of the land contested in Suit No: HC/15/2002…”
In their response, appellants herein averred in paragraph 5 of the Reply to amended statement of defence on page 21 of the record thus:-
“5. That paragraph 9 of the amended statement of defence is one of the reasons that there is shout and wide outcry of judicial corruption in this country because the same Cross River State High Court had in HC/43/2012, declared the document registered as 35/35/360, in Calabar, as null and void only for another Judge of similar jurisdiction to declare the same document as not null and void.
As regards the other land in dispute, appellants in paragraph 12 of their statement of claim on page 5 of the record pleaded that:-
“5. Plan No: ASC/CR/EBA/597 of 22/2/2004 came to the knowledge of the claimants when the defendant inserted it in plan made in Suit No: HC/378/2010, where the defendant herein is also a defendant. It was tendered there as Exhibit 35”.
From the above, it is clear that Suit No: HC/43/2012 and HC/15/2002 are cases connected to plot 13/15 Felix Nsemo Drive, Calabar one of the land in dispute. Furthermore, the appellants by the averment in paragraph 12 of their statement of claim above admitted that the present suit, the subject matter of this appeal is similar to the subject matter in previous Suit No: HC/378/2010 involving the appellants as claimant against the respondent herein over the same piece of land covered by the said plan NO ASC/C/EBA/597.
I have held elsewhere in this judgment that any abuse of judicial process includes instituting a multiplicity of actions on the same subjectmatter against the same opponent on the same issues and also instituting different actions between the same parties simultaneously in different Courts even though on different grounds. In the instant case, Suit No: HC/288/2012 that culminated to this appeal is clearly an abuse of judicial process. The learned trial judge was therefore on course when he found on page 169 of the record thus:-
“The claimants have had to litigate over the same piece of land in many suits including C/88/76, C/E/210/96 and SC/92/2002 also the suits in HC/15/2002, HC/378/2010.”
I am also of the firm view that considering the content of the previous suits with the present one, same are aimed at achieving the same purpose.
Furthermore, learned trial Judge had thoroughly considered the relevant processes and found on page 170 of the record thus:-
“It is therefore my view and I so hold that the claimants have no basis to re-litigate on the same matter again in the present suit. I agree with the submission of the Senior Counsel that the land in dispute has been decided repeatedly against the claimants and are now estopped from reopening the same claimin the present suit. There must be an end to litigation.
The suit is against the defendants who is alleged to have been a defendant in Suit No: HC/378/2010. The totality of the land is what has been decided by the Supreme Court in SC/92/2002. There are indeed other suits earlier mentioned that go to show that the defendant and the community of Ishie people have been bounded by multiple action in respect of the said land.”
I am unable to fault the sound reasoning above. It was the proceedings in Suit No. HC/15/2012 that gave rise to Suit No. HC/378/2010. Again, the claims in the suit giving rise to this appeal was finally laid to rest by the apex Court in SC/92/2002. I therefore endorse the finding of the trial Court that the plea of estoppel per rem judicatam is sustained. Issue No. 3 is similarly resolved against the appellants.
The main contention respecting issue No.4 is whether Section 1 of Limitation Law Cap. L14 of Cross River State applies to the suit giving rise to this appeal. The relevant provision of Section 1 of the extant law read as follows:-
“Section 1 – No action shall be brought by any person to recover anyland after the expiration of ten years from the date on which the right of action accrue to him or if it first accrued to some person through whom he claims to that person.”
The essence of a limitation law is that the legal right to enforce an action is not a right in perpetuity but a right generally limited by statute. Thus, where the action is instituted outside the prescribed period, the Court is divested of jurisdiction to entertain the matter, as it is no longer a live issue. See EGBE V. ADEFARASIN (NO.2) (supra), AMADI V. INEC (2013) 4 NWLR (prt. 1345) 595 and HASSAN V. ALIYU (2010) 17 NWLR (prt.1223) 547.
The respondent’s contention in the present case is that he acquired the two contiguous parcel of the land from different vendors in 1978 and 2001 wherein he has been exercising acts of ownership. The second area is where the respondent resides and same was granted to him by the Government of Cross River State in 1994 and the respective certificates of occupancy were granted for more than 10 years. In paragraphs 16, 17 and 19 of the Further amended statement of defence on pages 57 and 58 of the record, respondent pleads asfollows.
16. The defendant denies paragraph 15 of the statement of claim. In further reply he avers that his land shown in survey plan ASC/CR/EBA/597 consists of two contiguous parcels which he acquired separately from different vendors in 1978 and 2001 respectively. The first parcel measuring about 2.9 hectares is shown in survey plan No: CD/CR/44/89 while the second parcel measuring about 3,628.7 square meters is shown in survey plan No: ZAP/368 / survey plan No: ASC/CR/EBA/597 was prepared in 2004 to cover the two parcels. These two were registered as No: 51/51/144 and 88/88/163 of the Cross River State Land Registry in Calabar.
17. The land shown in survey plan No: ZAP/3658 was acquired by the defendant from late EdemArchibong family and late AbasiArchibongMinika family acting as joint vendors. The defendant paid for the said parcel in 2001. The deed is hereby pleaded as No: 88/88/163 of the Land Registry, Calabar.
19. At the trial, the defendant shall contend that this present action by the claimants to recover possession of the land shown in survey plan No. ASC/CR/EBA/597 is statute barred under Cross River State Limitation Law becauseprior to this suit the defendant has been in possession of the portion of that land shown in survey plan No: CD/CR/44/89 for 34 years (from 1978) and in possession of the potion shown in survey plan No ZAP/3658 for 11 years (i.e. from 2001).
The appellants’ contention here is that time only begins to run when the claimant becomes aware of the adverse possession and also when the fraud alleged is discovered.
In order to find out whether a claim is caught by statute of limitation, the Court will first identify the claim or cause of action by examining in detail the writ of summons and the statement of claim to find out when the wrong which gave the claimant his cause of action was committed. It will then compare that date with the date the writ of summons was filed.
It is pertinent to restate here that the basis of the appellants’ claim before the lower Court in the present suit is that they own the land in dispute and that they are entitled to a statutory right of occupancy over same. And that their rights and leases of the defendant be cancelled in respect of the property thereof. The respondent having been in occupation of theseparcels of land since 1978, 2001 and 1994, the learned trial Judge was right to have concluded that the appellants were in coma and only to wake up for more than 10 years after to lay claim to the said pieces of land. I am also of the view that they cannot get judicial remedy as their action is statute barred. This issue is unhesitantly resolved in favour of the respondent.
In the light of the foregoing, there is obviously no merit in this appeal. The judgment of the lower Court is hereby affirmed and the respondent is entitled to costs which I assessed at N100,000.00 against the appellants.
BALKISU BELLO ALIYU, J.C.A.: I have had the privilege to read in draft, the judgment just delivered by my learned brother, Muhammed Lawal Shuaibu, JCA.
Having also perused the record of appeal and the briefs of argument, I am at one with his reasoning and conclusion and I adopt same as mine in also dismissing this appeal.
I affirm the judgment of the High Court of Cross River State, sitting at Calabar, delivered on 4/11/2014 in respect of Suit No. HC/288/2012. I abide by the order of cost made in the lead judgment.
ADEMOLA SAMUEL BOLA, J.C.A.: I have read through and considered the judgment delivered by my Lord, MUHAMMED LAWAL SHUAIBU, JCA. I am in agreement with his reasons and conclusion, I adopt them as mine.
I hold that there is no merit in this appeal. The judgment of the lower Court is hereby affirmed. Appeal dismissed. N100,000.00 cost awarded to the respondent and against the appellants.
Appearances:
Orok Ironbar For Appellant(s)
Essien H. Andrew For Respondent(s)
