DAVID EZE & ANOR. v. MADUENYENWA OKWEREMUO & Ors.
(2010)LCN/4195(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 18th day of May, 2010
CA/PH/2/2004
RATIO
RAISING FRESH ISSUE ON APPEAL: WHETHER ANY ISSUE WHICH WAS NOT RAISED AND DECIDED BY THE LOWER COURT CAN BE COUNTENANCED ON APPEAL
It is trite law that appeal is confined only to the issues decided by the lower court, and except with requisite leave of court, any issue which was not raised as and decided by the lower court cannot be countenanced on appeal. PER HELEN MORONKEJI OGUNWUMIJU, J. C. A.
ERROR IN JUDGMENT: WHETHER WHERE AN ERROR IN THE JUDGMENT OF THE TRIAL COURT THAT HAS NOT OCCASIONED A MISCARRIAGE OF JUSTICE , IT WILL NOT BE OVERTURNED
Where the error in the judgment of the trial court has not occasioned miscarriage of justice, it will not be overturned. See AMAYO v. ERIMWINGBORO (2006) 5 SCNJ 1; SKYPOWBR AIRWAYS v. OLIMA (2005 l8 NWLR Pt.957 Pg.224. PER HELEN MORONKEJI OGUNWUMIJU, J. C. A.
DUTY OF COURT IN CALLING FOR ORAL EVIDENCE: DUTY OF THE COURT TO CALL FOR ORAL EVIDENCE WHEN FACED WITH CONFLICTING AFFIDAVIT OF OPPOSING PARTIES IN RESPECT OF MATERIAL ISSUES AND WHETHER THERE IS AN EXCEPTION TO THIS GENERAL RULE
Generally, the law is clear and it is that the court has a duty to call oral evidence to resolve conflicts in respect of material issues in the affidavit of opposing parties. See GROUP DANONE v. VOLTIC NIG. LTD. (2008) 7 NWLR Pt. 1087 Pg.637; DPCC LTD. V. BPC LTD (2008) 4 NWLR Pt 1017 Pg. 376; EJFZIE v. ANUWU (2008) 12 NWLR Pt. 1101 Pg. 446; F. O. FALOLA v. UNION BANK OF NIG. PLC (2005) 2 SCNJ 209. However, there is an exception to this general rule. Where there are documentary as well as oral evidence (affidavit evidence) before the court, the court can suo motu resolve such conflicting evidence by resort to the documentary evidence as the documentary evidence should be used as a hanger from which to assess the oral testimony. See PAS & TA LTD v. BABATUNDE (2008) 8 NWLR Pt. 1089 Pg. 267 at 292; BAWA v. PHENIAS (2007) 4 NWLR Pt. 1024 Pg. 251; FALOBI v. FALOBI (1976) 10 SC. 1; EZEGBU v. F A T B LTD. (1992) | NWLR Pt.220 Pg. 699; WINLYN v. NACB CON. & FINANCE CO. LTD. (2000) 8 NWLR Pt. 670 Pg. 600. PER HELEN MORONKEJI OGUNWUMIJU, J. C. A.
ADMISSIBILITY OF DOCUMENT ATTACHED TO AN AFFIDAVIT: WHETHER THE ADMISSIBILITY OF A DOCUMENT ATTACHED TO AN AFFIDAVIT CAN BE OBJECTED TO BEFORE THE HEARING OF THE SUBSTANTIVE ACTION
Generally, the admissibility of a document attached to an affidavit must not be objected to until the substantive action comes up for hearing. See ADEJUMO v. GOV. LAGOS STATE (1970) ALL NLR 183; CROSS RIVER PROPERTY AND INVESTMENT CO. LTD. V. OBONGHA (2000) 8 NWLR Pt. 670 at 765. PER HELEN MORONKEJI OGUNWUMIJU, J. C. A.
ESTOPPEL PER REM JUDICATAM: CONDITIONS THAT MUST BE PROVED FOR A SUCCESSFUL PLEA OF ESTOPPEL PER REM JUDICATAM
A party pleading res judicatam must plead and prove all the elements of the doctrine, and none may be presumed. CHIEF SALAMI ADESINA v. THE COMMISSIONER IFON/ILOBU BOUNDARY COMMISSION OSOGBO (1996) 4 SCNJ 111. A successful plea of res judicata deprives the court of jurisdiction. See SALAMI v. COMMISSIONER, BOUNDARY COMMISSION supra. “Thus, in a plea of estoppel per rem judicatam or estoppel by record, there is need to show that the parties, issues and subject matter in the previous suit and the present suit where plea is raised are the same. CHIEF IBIBO DOKUBO v. CHIEF J. OMONI (1999) 8 NWLR Pt. 616 Pg.647; OLOWO OKUKUJE v. ODEJENMIA AKWIDO (2001) 3 NWLR Pt. 700 Pg. 261. There must exist mutuality of interest in respect of both sides or parties in the two suits before the doctrine is applicable. There must be privity of estate or blood between the parties. See THE DAGACI OF DERE v. THE DAGACI OF EBWU (2006) I SCNJ 160. Thus it is sufficient for a person resisting its applicability to raise absence of just one of the ingredients. PER HELEN MORONKEJI OGUNWUMIJU, J. C. A.
Before Their Lordships
ABUBAKAR JEGA ABDUL-KADIRJustice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJUJustice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADEJustice of The Court of Appeal of Nigeria
Between
DAVID EZE & ANOR.Appellant(s)
AND
1. MADUENYENWA OKWEREMUO
2. NZE FRANCIS EZERIOHA
3. CELESTINE MGBEANULURespondent(s)
HELEN MORONKEJI OGUNWUMIJU, J. C. A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Imo State Holden at Mgbidi, Oru Judicial Division and presided over by Hon. Justice F. I. Duruoha – Igwe dismissing the suit of the Appellants on the ground of estoppel per rem judicatam. Against the said ruling, the Appellants have filed this appeal by the notice and grounds of appeal dated 8th day of September, 2003.
The facts that led to this appeal are as follows:
The Appellants as plaintiffs filed suit No. HOU/45/2000 at the High court of Imo state, Holden at Mgbidi in the oru Judicial Division seeking the following reliefs:
(a) Declaration that the Umuorji kindred of Plaintiffs is the first kindred in Umuezike in order of seniority.
(b) Declaration that the Umuorji kindred of the Plaintiffs are the second kindred in Eziali Mgbidi in the order of seniority.
(c) Perpetual injunction restraining the Defendants by themselves, their agents, servants, and,/or privies or whosoever that is from Umuoma Eziali Mgbidi from laying claim of seniority over the plaintiffs Umuorji kindred, Eziali Mgbidi.
The Respondents filed their Statement of Defence to the Appellants’ Statement of Claim. And therein contended that the issue of Seniority between the two kindred of the parties had been decided in a subsisting judgment of the District Court Grade A of Western Oru in suit No. 84/59, and thereupon raised issue estoppel. The Respondents on the 15th day of October, 2001 filed preliminary objection to the hearing of the suit on the ground of estoppel per rem judicatam.
In proposing the motion for the dismissal of the suit on ground of estoppel the Respondents relied on the record of proceeding containing the judgment of the District Court Grade A Western Oru, in the suit No. 84/59 duly certified.
In opposing the motion the Appellants contended that the judgment of the District Court Grade A Westem Oru was set aside on appeal and relied on a judgment of the Orlu County Court which the learned trial judge refused to admit. The learned trial judge upheld the preliminary objection of the Respondents and dismissed the Appellants’ suit.
On appeal, the Appellants’ brief was dated, 6/5/04, filed on 6/5/04 and deemed filed on 8/12/04. The Appellants also filed a Reply brief dated 1/2/05 filled on 2/2/05. The Respondents’ brief was dated 20/1/05 and filed on 24/1/05.
The Appellants distilled a sole issue for determination, also adopted by the Respondents’ counsel, which I will also consider in the determination of this appeal. It is set out below:
“Whether the learned trial judge was not wrong when she held that estoppel per rem judicatam applied in the circumstances of this suit.”
The Respondents’ brief contained argument in respect of a notice of preliminary objection raised in the brief of argument on page 4, item 404. I will consider the grounds of preliminary objection first before tackling the substantive issue for determination in the appeal.
Respondents’ counsel argued that grounds (i) & (iii) of the grounds of appeal filed by the Appellants are incompetent and must be struck out. He argued that ground (i) offends Order 3 rule 2 (4) of the Court of Appeal Rules 2002 which prohibits vague and general grounds.
Counsel argued that ground (i) which reads:
“(i) ERROR IN LAW- The learned trial court erred in law when she held that estoppel per rem judicatam applied to the suit No. HOU/45/2000 and dismiss it.”
Counsel submitted that the ground as couched is very general and not based on any foundation, but a general statement encompassing the decision of the trial judge on estoppel per rem judicatam.
In answer, Appellants’ counsel in the reply brief set out the whole of ground one including the particulars of error.
Ground 1 is set out below:
The Appellants’ ground (i) with its particulars of error reads thus:
“(i) Error in Law: The learned trial judge erred in law when she held that estoppel per rem judicatam applied to the suit, HOU/45/2000 and dismissing it.”
PARTICULARS OF ERROR
(a) The parties in the present suit and previous suit are not the same.
(b) The issues in the present suit are different and distinct from the issues determined in the previous suit.
(c) The subject matter in the present suit is different from the previous suit.
(d) The judgment in the previous suit was no longer subsisting, the same having been disposed of in the subsequent appeal.”
Suffice it to say that when ground 1 is read together with its particulars of error, it is clear that it is based on the issue in controversy between the parties. Surely, the Respondents cannot be left in doubt as to what the complaint of the Appellants actually is. It is erroneous to single out a portion of the ground ignoring the particulars and to raise a complaint thereon. I agree with the Appellants’ counsel that it is also erroneous to single out Order 3 rule 2 (4) of the 2002 Court of Appeal Rules without considering the other limbs of Order 3.
The Supreme Court in the case of ADEROUNMU v. OLOWU (2000) 4 NWLR Pt. 652 after setting out Order 3 rule 2 (1) – (4) held as follows:
“These provisions spell out what are required of a ground of appeal and the purpose is to ensure that the Respondent is not taken by surprise. Once, therefore, a ground of appeal clearly states what the Appellant is complaining about and there is compliance with the rules of court, it cannot be described as bad and incompetent. See also HAMBE v. HUEZE (2001) FWLR Pt. 42 Pg. 1 at 11-12.”
It is my humble view and I say with the greatest respect that the objection of Respondents’ counsel to this ground of appeal is completely misconceived. After all, the essence of a ground of appeal is to appraise adverse party of the nature of complaints by Appellants in words that are not vague. See. AREWA PAPER CONVERTERS LTD. V. NIDC LTD. (2006) 7 SCNJ 457, STIRLING CIVIL ENGINEERING NIG. LTD. v. AMBASSADOR MAHMOOD YAHAYA (2005) 11 NWLR Pt. 935 pg. 181. Ground one as couched by the Appellants satisfied in my view all the requirements of a valid ground.
Learned Respondents’ counsel also raised an objection to ground (iii) of the appeal. He argued that the issue raised in the said paragraphs as arising from the said ground 3 (iii) of the Appellants’ grounds of appeal, namely: the propriety of determining estoppel per rem judicatam on conflicting evidence without calling oral evidence, was not raised at the lower court, hence, the lower court was not afforded the opportunity of deciding on the issue. It is trite law that appeal is confined only to the issues decided by the lower court, and except with requisite leave of court, any issue which was not raised as and decided by the lower court cannot be countenanced on appeal. He argued that the Appellants neither sought for nor obtained the requisite leave to raise the said issue on appeal for the first time. He urged this court to discountenance the said issue.
Counsel urged the court to strike out in totality all the grounds of appeal as being incompetent. He cited BABALOLA v. ALADEJANA (2001) FWLR Pt. 61 Pg. 1670 at 1682.
Learned Appellants’ counsel argued in reply on this point that the issue of propriety of determining estoppel per rem judicatam on conflicting evidence arose for determination at the court below. He argued that the trial court having a duty to resolve conflicting affidavit evidence by calling oral evidence was wrong to have resolved the facts in the conflicting affidavit without calling oral evidence. That is the complaint raised against the trial court in ground (iii) and that the issue arose from the court below. He cited MOMAH v. A.B. PETROLEUM INC. (2000) FWLR Pt. 5 Pg. 608 at 827, FALOBI v. FALOBI (1976) 9 & 10 SC Pg. 1, AKINSETE v. AKINDULIRE (1966) ANLR 137.
My own humble view is that the trial court gave a final decision in respect of the matter brought before it, thus determining the rights of the parties because the claims of the Appellants were dismissed. In the circumstances, the question of the proper procedure which should have been adopted by the trial judge is a substantial issue of law on which the Appellants could appeal. The complaint of the Appellants is that the trial court’s refusal to admit Exh. A, A1, A2 and D in evidence had caused miscarriage of justice. That complaint is a good ground for appeal. The argument of the learned Respondents’ counsel is incomprehensible to me more so as it is clear that there was a decision by the trial court to reject the Exhibits attached to the Appellants’ counter-affidavit, which decision is justiciable on appeal.
I find that ground of objection also unmeritorious. Both grounds of objection are hereby dismissed.
Now, to the issue for determination. Appellants’ counsel submitted that for estoppel per rem judicatam to apply, the following ingredients must exist:
(a) The question for decision in the suit must have been decided in the earlier proceedings.
(b) The decision relied upon to support the plea must be final.
(c) The parties must be the same. That is, the parties involved in the proceedings must be the same per se or by privies. As per Amaizu JCA in the case of JIMOH v. AKANDE (2000) FWLR Pt. 129 at page 1544.
Counsel submitted that none of the above ingredients were established by the Respondents’. He also argued that the subject matter in the two suits were not the same. In the previous suit the Plaintiffs claimed:
“An order of court to compel the Defendants to stop interfering with Plaintiffs stool and headship of Umuezike Eziali Mgbidi family, since four months ago.”
In the present suit,, the Appellants sought for the following reliefs:
“(i) Declaration that the Umuorji kindred of the Plaintiffs is the first kindred in Umuezike in the order of seniority.
(ii) Declaration that Umuorji kindred of the Plaintiffs is the second kindred in Eziali Mgbidi in the order of seniority.
(iii) And order of perpetual injunction restraining the Defendants by themselves, their agents, servants, and/or privies or whosoever that is from Umuoma Eziali Mgbidi from laying claim of the seniority over the Plaintiffs’ Umuorji kindred, Eziali Mgbidi. Sec page 3 of the Records.”
Appellants’ counsel also argued that in the previous Customary Court suit, Plaintiff was only making a claim to a personal right to wit: an order of court to compel the Defendants to stop interfering with plaintiffs, stool and headship of Umuezike Eziali Mgbidi family since four months ago while the Appellants in a representative capacity in the present suit are seeking the reliefs as set out above. While in the present case, the parties are David Eze and Nze Ekwueme Nzekudu as Plaintiffs suing for themselves and as representing the Umuorji kindred in Eziali Mgbidi, Oru West L.G.A. The Defendants are Maduenyenwa Okweremuo, Nze Francis Ezerioha, and Celestine Mgbeanulu defending for themselves and as representing the Umuoma kindred in Eziali Mgbidi Oru West L.G.A.
The judgment relied upon by the learned trial court as founding estoppel was in any event inoperative having been set aside on appeal. See Exhibit D between pages 40-41 of the records. In a bid to wriggle out of the effects of this exhibit, the learned trial judge dabbled into the question of admissibility of Exhibit D, which was not a live issue at that stage of the proceedings.
Learned counsel cited CROSS RIVER PROPERTY AND INVESTMENT CO. LTD. V. OBONGHA (2000) 8 NWLR pt. 670 at 765 paras. F – G, where the Court of Appeal adopted the decision of the Supreme Court in the case of ADEJUMO v. GOVERNOR OF LAGOS STATE (1970) ANLL page 187.
Counsel further submitted that it was premature for the learned trial judge to determine the admissibility of Exh. D which was attached to the further counter-affidavit since questions on the admissibility of documents have not at that stage of the proceedings become ripe for determination.
Counsel also argued that the trial court’s finding on the admissibility of Exh. D was inconsistent and contradictory. The court first held that Exh. A1, A2, A1 and D were public documents but then turned around to hold that they could not be admitted because they were not signed by the official who certified them.
Counsel argued that it was erroneous for the learned trial judge to determine the issue of estoppel on contradictory affidavit evidence from both parties. Counsel argued that it was premature for the learned trial judge to determine the suit on the basis of res judicata without the benefit of being presented with the full facts. Counsel cited NWOKANMA v. AZUOKWU (2000) 8 NWLR Pt. 670 Pg. 767 at 779, BRUCE-AKUMUGO v. HARRY (2001) FWLR Pt.61 Pg. 1641 at 1653.
Learned Respondents’ counsel argued on the issue of res judicata that the learned trial judge was right because both claims in the two cases were for determination of whether it is the Umuorji family of the Appellants’ or the Umuoma family of the Respondents’ that is the most senior in Umuezike kindred of Eziali Mgbidi, irrespective of the form of the claim.
He argued that the claim as formulated before a Customary Court must be scrutinized and the appellate court must consider the substance of such a claim and not the form. He cited OGBAHON v. REG. TRUSTEES’ CHRIST CHOSEN CHURCH OF GOD (2001) FWLR Pt. 80 Pg. 1496 at 1524; BALIHU OKINO v. YAKUBU OBANEBIRE (1999) 12 SC Pt. 11 Pg.39.
Counsel argued that the evidence of the parties and their witnesses in the proceedings at the Native Court, in the previous suit left no doubt that the issue involved in that suit was seniority between the Umuorji family (of the Appellants) and the Umuoma family (of the Respondents) both in Umuezike Eziali.
Counsel submitted further that even if the issue of seniority between the Umuorji of the Appellants and the Umuoma of the Respondents was not directly the subject-matter in the previous proceedings, without conceding, once it has arisen in the course of the proceedings and was decided thereon, it has constituted issue estoppel against the parties. Counsel cited SHANU v. AFRIBANK PLC (2003) FWLR Pt. 136 Pg. 823 at 852.
Respondents’ counsel submitted that the Appellants had not appealed against the finding of fact by the trial judge on the issue that the subject matter of litigation in the two suits was the same. Thus they cannot be heard to raise an argument on the finding or decision not appealed against. He cited INAH & ORS. v. UKOI (2003) FWLR Pt. 8 Pg. 342 at Pg. 407; OSHODI v. EJIFUNMI (2000) FWLR Pt. 8 Pg. 1271 at Pg. 1305.
Counsel also argued that the parties in both suits are the same. He also contended that the Appellants did not contest in this appeal the finding of the learned trial judge on the issue. He also reiterated his argument that although the capacity of the parties in the previous proceedings was not expressed on the Writ in a representative capacity, the law is that the processes and the proceedings being one of the Customary Court, one must look at the substance and not the form.
Counsel argued that the issue in controversy is the status of the two families and a previous court having pronounced on the issue, the previous decision operates in rem.
Counsel argued that the Appellants having consented to the proceedings and the wrong procedure in rejecting exh. D cannot now complain. He cited UBA PLC v. ABACHA FOUNDATIONS (2003) FWLR Pt. 178 Pg. 978 at 999.
Counsel submitted that the case of CROSS RIVER PROPERTY AND INVESTMENT CO. LTD. V. OBONGHA supra is irrelevant as the ratio is different from the issue under consideration and that for a judicial authority to be applicable it must be relevant to the present case. He cited DENCO SERVICES V. CROSS MARINE SERVICES (2002) FWLR Pt. 86 Pg.490. He argued that objection to admissibility of a document must be raised at the time it is sought to be tendered especially considering the nature of the application. He cited VINCENT STANDARD TRADING Co. LTD. V. XTODENS TRADING CO. LTD. (1993) 6 SCNJ pt. 11 pg. 282 at 301.
He conceded that even though the learned trial judge referred to Exh. A, A1, A2 and D as being uncertified, the judge was actually referring to Exh. D because at the tail end of his finding he put the word “IT” to signify that he was rejecting only Exh. D. Counsel argued that it was a mere slip on the part of the trial judge which has not occasioned miscarriage of justice. He cited IBWA LTD. V. PAUES (2000) 7 NWLR pt. 663 pg. 105 at 128; MAIKWARU v. BAYOLA (2000) 6 NWLR Pt. 659 Pg. 64 at 73; PAN ALTALNTIC SHIPPINC & TRANSPORT v. RHEIN MASS ETC (1997) 3 SCNJ 88 at 96.
Counsel argued that Exh. A, A1 &. A2 are at best evidence that there was a pending appeal in the matter. That alone does not derogate from the finality of the judgment on which the lower court founded the estoppel. He cited OGBENI v. CHACHORO (2003) FWLR Pt. 136 Pg. 926 at pg. 941-943.
Counsel argued that there is no dispute that Exh. D the main document relied on by the Respondents is an uncertified copy of a public document and the lower court was right to have discountenanced it. He cited ONYALI v. OKPALA (2000) NWLR Pt.3 Pg.501; BAYO v. NJIDOLA (2004) FWLR Pt. 192 Pg. 10 at 63; PDP v. SIDI-ALI (2004) ALL FWLR Pt. 220 Pg. 1371 at 1385; A.C.B. NIG. LTD. V. NWADIKA (1996) 4 NWLR Pt. 443 Pg. 470; ANUFORO v. OBILOR (1997) 11 NWLR pt. 530 Pg. 661; AKINIWON v. NSIRIM (1997) 9 NWLR Pt. 520 Pg.255; ALATHA v. ASIN (1999) 5 NWLR Pt. 601 Pg.32.
Counsel argued that the court must see that affidavit evidence is irreconcilably in conflict before oral evidence can be called. He also cited NWOKANMA v. AZUOKWU (2000) 8 NWLR Pt. 670 Pg.761 at 779; BRUCE-AKUMUGIO v. HARRY (2001) FWLR Pt. 61 Pg. 1641 at 1653; KALU MARK v. EKE (2004) Pt. 200 Pg. 1455 at 1478. Counsel on this point further submitted that there was no irreconcilable conflicting credible evidence on the finality of the judgment Exh. A relied on as estoppel by the trial judge who was not obliged in the circumstances to call oral evidence to reconcile conflicting positions.
Counsel argued that there must be an end to litigation which is the reason for the principle of estoppel per rem judicatam. He cited A.C.B. NIG. LTD. V. NWAIGWE (2000) 1 NWLR Pt. 640 Pg. 201 at 210-211; DAGGASH v. BULLAMA (2004) ALL FWLR Pt.212 Pg. 1666 at 1723- 1724.
Counsel also argued that even if it is conceded that the trial court should have called oral evidence that was a matter of procedural irregularity which the Appellants had acquiesced or consented to having not raised same at the lower court. He cited IBWA NIG. LTD. V. IANO NIG. LTD. (2001) FWLR Pt. 44 Pg. 421 at Pg.439. Counsel concluded that the trial court’s ruling on the Appellants’ objection on demurrer delivered 11/12/01 was an interlocutory decision which requires the leave of court before an appeal can be lodged. Since no such leave was obtained no appeal can be heard on that issue. He cited ONWE v. OGBUNYA (2001) FWLR Pt. 37 Pg. 1031 at 1042; BELLO v. UDOYE (2004) ALL FWLR Pt.225 Pg. 63 at 82.
The sole issue for determination in my view can be sub-divided into two and be identified as follows:
(a) Whether the trial judge was right at the stage of the proceedings to reject Exh. A, A1, A2 & D tendered by the Appellants in this appeal who were Plaintiffs/Respondents at the lower court and accept Exh. A tendered by the Respondents/Applicants at the lower court and Respondents in this appeal.
(b) Whether there was evidence on the record from which the principle of estoppel res judicata can be enforced.
On leg (a), let me first say with the greatest respect, as I said earlier in this judgment that I cannot agree with learned Respondents’ counsel’s view that the question of the admissibility of the various exhibits did not arise as a matter or substantial ground of law on which to challenge the reasoning of the learned trial judge.
To determine whether the learned trial judge came to a proper decision in the circumstances of this case, one must first decide whether the reasons given by the trial court were properly considered. The judgment is from pages 79 to 89 of the record.
First of all, I will consider the issue of whether at that stage in the proceedings it was right for the learned trial judge not to have called oral evidence in view of the patently contradictory affidavit evidence. Learned trial judge rejected Exh. A, A1, A2 and D attached to the affidavits of the Plaintiffs/Respondents at the lower court as inadmissible for lack of certification but admitted Exh. A attached to the affidavit of the Defendants/Applicants at the lower court. The learned trial judge held as follows on pages 88-89 of the record.
“Exhibit A, A1, A2 and D all by their very nature are public documents and yet none was certified. Counsel for Respondents argued that they paid for the certification and that failure of the person authorized to certify them to perform his duty cannot be visited on the Plaintiffs. No receipts for such payments were exhibited. I find the argument of learned counsel very curious. It is trite that every public document must be certified to render it admissible in evidence. Learned counsel knows this and still did nothing when he realized that the officer concerned failed to certify this very important document on which is defence or case rests.”
Let me first settle the implication of the slip in the judgment of the trial court when the learned trial judge said that Exh. A, A1, A2 and D were inadmissible. The most relevant consideration in the circumstances is whether even if the court inadvertently thought all the Exhibits were uncertified whether that erroneous conclusion had caused miscarriage of justice.
Exhibit A is the Orlu County Court (Appeal) itinerary for May 1960, Exh. A1 is the cause list for the Orlu County (Appeal) Court for the month of May, 1960. Exh. A2 is the motion for extension of time to appeal granted to the Appellants in suit 9/60 before the County Court (Appeal). Exh. D is the uncertified judgment of the Orlu County Court of Appeal in Appeal No. C/S 9/60 which emanated from the Western Oru District Court suit No. 84/59.
The most relevant document which could help the case of the Appellants is Exh. D, which was uncertified. The others were not conclusive one way or the other on the ‘issue of whether an appeal overturned the judgment in Respondents’ Exh. A. I do not think in the circumstances that a miscarriage of justice had occurred when there was no misconception about the status of the most material documentary evidence. Where the error in the judgment of the trial court has not occasioned miscarriage of justice, it will not be overturned. See AMAYO v. ERIMWINGBORO (2006) 5 SCNJ 1; SKYPOWBR AIRWAYS v. OLIMA (2005) 18 NWLR Pt.957 Pg.224.
Generally, the law is clear and it is that the court has a duty to call oral evidence to resolve conflicts in respect of material issues in the affidavit of opposing parties. See GROUP DANONE v. VOLTIC NIG. LTD. (2008) 7 NWLR Pt. 1087 Pg.637; DPCC LTD. V. BPC LTD (2008) 4 NWLR Pt 1017 Pg. 376; EJFZIE v. ANUWU (2008) 12 NWLR Pt. 1101 Pg. 446; F. O. FALOLA v. UNION BANK OF NIG. PLC (2005) 2 SCNJ 209.
However, there is an exception to this general rule. Where there are documentary as well as oral evidence (affidavit evidence) before the court, the court can suo motu resolve such conflicting evidence by resort to the documentary evidence as the documentary evidence should be used as a hanger from which to assess the oral testimony. See PAS & TA LTD v. BABATUNDE (2008) 8 NWLR Pt. 1089 Pg. 267 at 292; BAWA v. PHENIAS (2007) 4 NWLR Pt. 1024 Pg. 251; FALOBI v. FALOBI (1976) 10 SC. 1; EZEGBU v. F A T B LTD. (1992) 1 NWLR Pt.220 Pg. 699; WINLYN v. NACB CON. & FINANCE CO. LTD. (2000) 8 NWLR Pt. 670 Pg. 600.
The above is assuming that the documents attached to the conflicting affidavits are admissible in evidence. Where there is a question of the admissibility of the document attached to the affidavits in an application or matter before a court, depending on the circumstances of the case, the parties may not be able to challenge the admissibility of documents attached to the affidavit at the initial stage of the proceedings.
Generally, the admissibility of a document attached to an affidavit must not be objected to until the substantive action comes up for hearing. See ADEJUMO v. GOV. LAGOS STATE (1970) ALL NLR 183; CROSS RIVER PROPERTY AND INVESTMENT CO. LTD. V. OBONGHA (2000) 8 NWLR Pt. 670 at 765. The above general proposition is quite different from the trial judge refusing to give any probative value or refusing to admit any document which is intrinsically inadmissible by reason of non compliance with S. 112 of the Evidence Act for non certification as certified true copies of public documents.
I must digress here to say that I agree with the learned Respondents’ counsel’s view of the difference in the circumstances in CROSS RIVER PROPERTY v. OBONGHA supra and ADEJUMO’S case supra from the circumstances in this case.
In both cases, the objection to the documents were made at the initial stage of an application for leave to place the suit on the undefended list and leave to file certiorari proceedings respectively and the courts held that at that stage, the objector should wait for when the substantial application is made at which time it would be known for what use the document would be put and then an objection could be raised. Clearly these were preliminary applications for leave to initiate substantive proceedings.
In this case, the learned trial judge in my view took the right decision by not giving any probative value in this substantive application to dismiss an action, Exh. D an intrinsically inadmissible document. At whatever stage in the proceedings, whether there was an objection or not, the learned trial judge was right to have rejected and given no probative value to an admissible document. I do not agree with the learned Appellants’ counsel that in view of the nature of the application before the court the question of the admissibility of the documents on which the application was based and controverted have not at that stage of the proceedings become ripe for determination. This was an application based on an objection to the jurisdiction of the court on a matter of substantial law. I do not see anything erroneous in the learned trial judge in deciding the issue of whether estoppels res judiciatam was applicable on affidavit evidence. More so when the affidavit had exhibits which supported the assertion therein. The 1st leg of the issue is resolved in favour of the Respondents.
The 2nd leg of the issue is whether the learned trial judge gave proper probative value to Exh. A (exhibited by the Respondents at the lower court). In other words whether there was evidence on record from which the principle of estoppel per res judicatam can be enforced against the Appellants.
The learned trial judge held inter alia at pages 85-87 of the record: “Reading through Exh. A, Plaintiffs are from Umuoma while Defendants in the earlier suit are from Umuorji. It can be deduced from a careful reading of the proceedings and subsequent judgment in Exh. “A” that the parties sued in a representative capacity even though not expressly stated on record. They brought the action and defended same for and on behalf of their families i.e. Umuoma family and Umuorji family. It is also not hard to discern from the pleadings in the present suit and the affidavit in support of this application, that the parties are privies to the parties in the earlier suit. See paragraph 19 of the supporting affidavit. Plaintiffs denied this in their paragraph 8 of their counter-affidavit but I find otherwise. The law is that failure to express capacity on record does not mean that the judgment obtained cannot operate in representative capacity.”
Learned trial judge then concluded while determining issue 4 raised before the court that even though Exh. A, the judgment in suit No. 84/59 tendered by the Respondents was controverted by Exh. D tendered by the Appellants, the court was entitled to rely on Exh. A since Exh. D was inadmissible and conclude that the decision in the earlier suit No. 84/59 was valid and subsisting and to strike out the suit at the High Court.
In the first instance, whether a previous judgment operates as res judicatam is a matter of mixed facts and law. See RICHARD EZEANYA v. GABRIEL OKEKE 1995) 4 NWLR Pt. 388 Pg. 142; JACOB OYEROGBA v. EGBEWOLE OLAOPA (1998) 12 SCNJ 115.
A party pleading res judicatam must plead and prove all the elements of the doctrine, and none may be presumed. CHIEF SALAMI ADESINA v. THE COMMISSIONER IFON/ILOBU BOUNDARY COMMISSION OSOGBO (1996) 4 SCNJ 111.
A successful plea of res judicata deprives the court of jurisdiction. See SALAMI v. COMMISSIONER, BOUNDARY COMMISSION supra.
Thus, in a plea of estoppel per rem judicatam or estoppel by record, there is need to show that the parties, issues and subject matter in the previous suit and the present suit where plea is raised are the same. CHIEF IBIBO DOKUBO v. CHIEF J. OMONI (1999) 8 NWLR Pt. 616 Pg.647; OLOWO OKUKUJE v. ODEJENMIA AKWIDO (2001) 3 NWLR Pt. 700 Pg. 261. There must exist mutuality of interest in respect of both sides or parties in the two suits before the doctrine is applicable. There must be privity of estate or blood between the parties. See THE DAGACI OF DERE v. THE DAGACI OF EBWU (2006) I SCNJ 160. Thus it is sufficient for a person resisting its applicability to raise absence of just one of the ingredients.
I agree with the learned Respondents’ counsel that given the fact that the previous suit is a proceeding of the Customary Court, we have to look at the substance of the proceedings and not the form in order to find out whether the previous suit was brought in a representative capacity or in a personal capacity. See OKINO v. OBANEBIRI supra cited by Respondents’ counsel. In any event, it is the proceedings at the Customary/Native Court and the evidence led by the Plaintiffs in proof of his claim that is actually indicative of the issues before the court. Even where the claim of the Plaintiff as entered in the previous suit is not put on record as suing in a representative capacity, where it is obvious from the record of proceedings that he fought the matter for and on behalf of his family or kindred as in this case, then it would be taken that the previous case was fought on a representative capacity. I will set out excerpts from the judgment of the customary court of Eastern Nigeria, District court Grade A – Exh. A, tendered by the Respondents which were set up as a shield against the present action. Exh. A is the record of proceedings to judgment in suit 84/59. At the risk of being repetitive, the claim of the kindred of the Respondents before the customary court of Eastern Nigerian District court Grade A was:
“The Plaintiffs claim is for an order of court to compel the Defendants to stop interfering with the Plaintiffs’ stool and headship of Umuezike Eziala Mgbidi family since 4 months ago.”
The Plaintiff in 84/59 sued two Defendants who later applied that other members of their family be joined.
The Plaintiff in the said previous proceedings testified thus at page 29A:
“In Umuezike from where we come, I am the kindred head and the stool of the rulership for this kindred is with me. There are four families in Umuezike according to the order of seniority. Thus: Umuoma, Umuemecha, Umuodinma and Umuorji. I come from Umuoma, the eldest family while the Defendants come from umuorji, the last of the family (Sic). From time immemorial my family had been head Umuezike… underlining mine)
He further testified on the cause of action in the previous proceedings thus at page 30:
“As soon as Amawuru come into power as Local Councillor, he went to the District Council Office at Orlu and applied for a deletion of Umuoma as the eldest in the family and to substitute his family UMUORJI as the head. Later I was told that the D.O. has referred the matter to the Southern Oru Local Council for investigation. For over four months now, the council swayed from here to there without any definite decision on the matter.”
The evidence of other witnesses for the Plaintiffs is on the same line as shown by the record of proceedings in the proceeding in the previous suit No.84/59.
The other party in that case, the 1st Defendant in his defence testified as follows at page 364. Of the record.
“The cause of this action arose from a division of wards in Mgbidi. We were called Umuoma Ward. We protested because Umuoma is under us. However, we voted under Umuoma. After the voting, we petitioned to the D.O. against writing our name under Umuoma family. The D. O. then sent a letter to the Southern Oru Local Council to find out whether I was the head of that family or the Plaintiff. The council sent for us. Before the council, the whole of Eziala kindred stated we are the head of the Umuololo family and not the Plaintiff. These people of Eziala Mgbidi are present here for evidence in my favour. That’s all I know.”
In its judgment, the court in the previous proceedings found follows: at page 54:
“Summing up all these reasons, we have no doubt that Plaintiffs’ family is the SENIOR FAMILY in Umuezike, and we have no hesitation in awarding him and his family Umuoma, the unalienable and indefeasible stool and leadership of that family.”
There is no doubt from the affidavit of both parties at the trial court that the subject matter or the claim of the Appellants in the present suit is one which revolves around who is the senior kindred in Umuezike between Umuorji of the Appellants and Umuoma of the Respondents. The parties in 1959 and the parties in this appeal had the same privity or mutual interest to enforce the seniority of their kindred when the present claim was filed in 2000. Where there is privity of blood or estate, the law assumes that the parties in the previous case are the parties in the present case. There is no doubt that there is privity of blood between the Plaintiffs from the Umuoma family in suit 84/59 and the Respondents from the Umuoma in the present suit. The Respondents are the descendants of the Plaintiffs family in 84/59.
The present Appellants are also descendants of the Umuorji family who fought the matter in 1959.
I have read the Exhibits in the file and I share the view of the learned trial judge that the parties, the subject matter, the issue in controversy in the previous suit decided on 12/5/59 are the same in this appeal. If in truth the Appellants had presented a successful appeal in 1960, why are they re-litigating the same issue? Surely the implication of Exh. D – The uncertified copy of a judgment in favour of the Appellants overturning the decision of the Native Court was not lost on the Appellants’ counsel. How come that was the only document not duly certified when it was brought in issue. Counsel had enough notice. The issue of estoppel was raised in the pleadings and then raised as a preliminary objection. This was not a mere procedural irregularity but one of substantial matter of law. The effect when the doctrine of res judicata per rem judicatam is applicable is that it precludes a party or his privy from disputing matters adjudicated upon in previous legal proceedings in subsequent proceedings.
A successful plea obviates the need for a court to receive evidence concerning merits of the subsequent suit. See EKAETE BASSEY OKPOSIN v. FLORENCE ASSAM (2005) 14 NWLR Pt. 945 Pg. 495.
The essence of the principle of estoppel per rem judicatam expressed in the legal Latin maxims as INTEREST REIPUBLICAE UT EST FINIS LITIUM is that there must be an end to litigation. After conclusive litigation on a matter, no party’s privy can wake up several decades later to re-litigate the same matter. My own humble conclusion after a review of the facts and law in this case is that the principle of res judicatam applied to deprive the lower court jurisdiction in the matter.
In the circumstances, I affirm the decision of the trial court and dismiss this appeal. Costs of N=30,000.00 to the Respondents against the Appellants. Appeal Dismissed.
ABUBAKAR JEGA ABDUL-KADIR, J. C. A.: I have had the privilege of reading before now the Judgment just delivered by my learned brother Ogunwumiju, JCA, I agree with her conclusion.
I also dismiss the Appeal.
MOJEED A. OWOADE, J. C. A.: I read in advance the judgment just delivered by my learned brother, Ogunwumiju, JCA. I agree with the conclusion reached therein. I also dismiss the appeal.
Appearances
C. N. ObiFor Appellant
AND
B. C. Iheka with him L. C. UdemaduFor Respondent
