CHIEF JOHAN IKALAMA & ORS. V. MR. VELVET EDWARD & OS.
(2011)LCN/4652(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 29th day of June, 2011
CA/PH/201/2007 (Consolidated)
RATIO
ESTOPPEL PER REM JUDICATAM: CONDITIONS FOR A SUCCESSFUL PLEA OF ESTOPPEL PER REM JUDICATAM IN A LAND MATTER
In the recent case of ALAPO V. AGBOSERE (2010) 42 NSC QR 15, Oguntade JSC had this to say on the plea; “The simple issue in dispute as I observed above is whether or not the property previously litigated upon by the parties is the same one in dispute in the current case. In EKPOKE V. USIFO (1978) 6 – 7 SC. 187 at 198 – 199 this Court per OBASEKI JSC observed.” “To found a plea of estoppel per rem judicatam the defendant/respondent had to satisfy the court that (1) The parties were the same (2) That the land was the same and (3) That the subject matter of the claim was the same. In considering a plea of Res Judicata one of the Criteria of the Identity of the two actions is the inquiry whether the same evidence would support both. MADUKOLU & ORS. V. NKEMDILIM (1962) 1 All NLR 587: See also AGUMWA V. ONWUKWE (1962) ALL NLR 537; COKER V SANYAOLU (1976) 9 – 10 SC 303” PER TUNDE O. AWOTOYE, J.C.A
RES JUDICATA: WHETHER PARTIES TO A SUIT CAN RELITIGATE AN ISSUE THAT HAS ALREADY BEEN SETTLED BY A COURT OF COMPETENT JURISDICTION, BY BRINGING A FRESH ACTION
In the earlier case of ABUBAKAR V BEBEJI OIL & ALLIED PROD. LTD (2008) 15 WRN 1 at 59 Tobi JSC, explained the plea of estoppel per rem judicatam thus, “It is now well settled in a long line of decided authorities thus that where a court of competent jurisdiction has settled, by a final decision the matters in dispute between the parties none of the parties or Respondent, privy/privies may relitigate that issue again by bringing a fresh action. The matter is said to be Res Judicata” His lordship, Tobi JSC earlier in the judgment at page 52 lines 25 – 30 defined parties to “include privies in blood and estate. Executors (including executor deson fort) trustees, beneficiaries, assigned assignees lesser, lessees and guardian – ad idem. PER TUNDE O. AWOTOYE, J.C.A
ERROR IN A CASE: WHETHER ONLY ERROR THAT IS SUBSTANTIAL AND THAT OCCASIONS MISCARRIAGE OF JUSTICE IN A CASE THAT WILL RESULT IN AN APPEAL BEING ALLOWED
I must state that it is not every error in a case that will result in an appeal being allowed. Only an error that is substantial and that occasions miscarriage of Justice will. See NWAEZE V. THE STATE (1996) 2 NWLR (PT 428) 1. PER TUNDE O. AWOTOYE, J.C.A
RATIO DECIDENDI: WHETHER AN APPEAL CAN ONLY LIE AGAINST THE RATIO DECIDENDI OF THE JUDGMENT OF THE LOWER COURT
An appeal is usually against the ratio decidendi of the Judgment of the lower court and not in respect of obiter dicta except where such obiter dicta has influenced the ratio decidendi of the lower court. See SAUDE V. ABDULLAHI (1989) 4 NWLR (PT.116) a 387. PER TUNDE O. AWOTOYE, J.C.A
INTERFERENCE WITH THE FINDINGS OF FACTS: CIRCUMSTANCE IN WHICH THE APPELLATE COURT WILL NOT DISTURB THE FINDINGS OF FACT MADE BY A TRIAL COURT
These are findings of fact that are not perverse and which are supported by overwhelming evidence in record. It is therefore not right for us to disturb them. See OGIDI V. STATE (2003) 9 NWLR (Pt. 824) 1. PER EJEMBI EKO, J.C.A
RES JUDICATA: THE PRINCIPLE OF RES JUDICATA
It is far this reason that Res Judicata is an affirmative defence barring the same parties from litigating a second law suit on the same claim, or any other claim arising from the same transaction or series of transactions. See ABE v. ADENIYI (2007) 4 NWLR (Pt.1023) 191 at 193 – 194, 217. Thus, as stated by ADIO, JSC in CHIEF SALAMI ADESINA & ANOR. V. THE COMMISSIONER IFON/ILOBU LAND COMMISSION, OSOGBO & ANOR. (1976) 4 SCNJ 112 at 119 what the principle of Res Judicata means is that where a competent court has determined an issue and entered judgment thereon neither of the parties to the proceedings may re-litigate that issue by formulating a fresh claim, since the matter is A plea of estoppet per rem judicatam, in effect, deprives the court the jurisdiction to determine as issue to which it relates. Cantankerous and vexatious litigants, like the instant appellants, may not like it. The principle of law is designed to reinforce the public policy that demands that there must be an end to litigation. PER EJEMBI EKO, J.C.A
JUSTICES
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
TUNDE O. AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. CHIEF JOHAN IKALAMA
2. CHIEF FESTUS OBU
3. MR. SUNDAY IBE
4. BENJAMIN ADA
(For themselves and as representing the people
Of Abuloma in Okirika Clan, Port Harcourt). Appellant(s)
AND
1. MR. VELVET EDWARD
2. ELDER ISRAEL TAMUNO
3. ELDER EDWIN ABEL OKURU
4. ELDER ISAAC OTTAH
5. MR. CYPRIAN AMAKIRI
6. MR. CHRISTOPHER PETERS
7. CHIEF ANTHONY AKAPOLO-AHOLU
8. CHIEF JOSEPH AMADI OGBONDA
9. CHIEF JOHN AMADI MGBAH
10. CHIFE EBENEZER NYECHE
11. MR. SAMUEL EKEKWU NBINYE
(For themselves and on behalf of the people of Elekahia
Community Diobu/joined by order of court 25/1/96 for
themselves and on behalf of the people of Elekehia Community,
Diobu). Respondent(s)
TUNDE O. AWOTOYE, J.C.A (Delivering the Leading Judgment): This is the judgment in respect of the ruling of Kobani J., of High Court of Rivers State delivered on 12/2/2007.
The plaintiff’s claims against the defendants at the court below are as follows;
“WHEREFORE the plaintiffs institute these proceedings and claim as follows, that is to say:-
1. A declaration of statutory right of occupancy to the piece or parcel of land known as ELIOKIA as depicted and shown on survey plan No. CTH.66(L/D) prepared by Mr. C.T. Horsfall, Licenses Survey. Iyima and situate in Abuloma Okirika Clan in the Port Harcourt Local Government Area of the Rivers State of Nigeria within the jurisdiction of this Honourable Court.
2. The sum of N500,000.00 (Five hundred thousand Naira) being damages for trespass committed by the 1st set of defendants in January, 1985 on the said piece of parcel of land in possession of the plaintiffs.
3. Perpetual injunction restraining the defendants by themselves, their privies, servants and/or agents or otherwise howsoever from further trespassing on the plaintiffs’ piece or parcel of land aforesaid.”
The defendants in response to the statement of claim filed further amended statement of defence.
In paragraph 1 and 4 of the further amended statement of defence, the defendants averred as follows:-
“1. Save as is herein expressly admitted’ the defendants deny each and every allegation as contained in the plaintiffs’ statement of claim. The defendants hereby specifically raise the following defences:-
(a) Estoppel by record
(b) Res Judiciata
(c) Estoppel by inaction
Notice is hereby given of the defendant’s intension to raise a preliminary objection to the whole action.
4. Paragraph 4 of the statement of claim is denied. The land in dispute is part of the defendants’ land. It is the subject of a High Court judgment Suit No. P/46/66 in which the Elekohia-Diobu people obtained judgment for title, trespass and injunction against the present plaintiffs. The said action went up to the Supreme Court as SC/23/1980 (reported officially in 1981 5 S.C. page 291 – CHIEF VICTOR WOLUCHEM & ORS. VS. CHIEF SIMON GUDI & ORS.) The defendants were put on this land by the Elekohia, Diobu people. Reliance will at the trial of this suit be placed on the following:-
(a) The pleadings and Proceedings in Suit No. P/46/66 up to the Supreme Court.
(b) Plan No. UND/29/64B/RS of 5th November 1964 and amended 12th March, 1973.
(c) Defendants’ plan No. ONC/86/R57-LD
(d) Defendants’ plan No. MG/RV234/89
(e) Government plan Port Harcourt N.W – Sheet 334 N.W.
(f) Letter dated 21/11/83 – titled “Nipping by the bud”.
The 2nd set of defendants joined by the order of Goodhead J. made on 25/1/1996 also filed a 14 paragraph statement of defence. In paragraphs 1 – 13 of the said statement of defence the 2nd set of defendants averred as follows:
“1. The second set of Defendants save as us herein expressly admitted, deny each and every allegation as contained in the plaintiffs amended statement of claim. The second set of Defendants hereby raise all equitable defences open to them more particularly the following:-
(a) Estoppel by record
(b) Res Judiciata
(c) Estoppel by inaction
(d) Admission against interest’
Notice is hereby given of the second set of defendant’s intension to raise a preliminary objection to the whole action.
2. The plaintiffs do not own the land in dispute and like their kit and kin are scattered in places where they carry on traditional trade (i.e. fishing). They wander from place to place with no permanent abode. The fact of the plaintiffs being wandering fishermen from Okirika and being allowed to squat near creeks for fishing purposes has been taken up specifically as an issue in a High Court proceeding SUIT NO. P/46/66 – CHIEF VICTOR WOLUCHEM & ORS VS. CHIEF SIMON GUDI & ORS. Reliance would be placed on the said proceedings and judgment of Allogoa C.J. (as he then was).
3. During the month of March 1966 the plaintiff people of Abuloma Okirika Clan invaded a portion of the land in dispute whereupon the second set of Defendants people led by Chief Victor Woluchem and five others sued the plaintiffs Abuloma people led by chief Simon Gudi and seven others. The action was Suit No. P/46/66 – CHIEF VICTOR WOLUCHEM & ORS VS. CHIEF SIMON GUDI & ORS.
4. Pleadings were duly exchanged. The matter went to trial on a statement of claim settled by A. OBI OKOYE o counsel (as he then was) dated 30th January, 1974. The defence relied on a statement of defence dated 26th October 1974 settled by W.D. Dappa of counsel (as he then was).
5. Oral and documentary evidence were tendered and the matter heard in full by Allagoa C.J. – Rivers State, Nigeria.
5. Allagoa C.J. on the 22nd September, 1975 in a reserved judgment entered judgment for the plaintiffs of Elekahia Diobu against the defendants of Abuloma (Okirika – i.e. the plaintiffs in Suit No. PHC/328/85).
7. In proof of their case before Allagoa C.J. the plaintiffs called as their witness B.U. Nwakolame who tendered their SURVEY PLAN NO. UND/29/54/RS of 5th November, 1964 and amended 12th March, 1973 as Exhibit “A”.
8. The subject-matter of Suit No. P/46/66 was a piece of land called Ozugboko by the plaintiffs which is set out and verge green in SURVEY PLAN NO. UND/29/54/RS aforesaid.
9. The claim is Suit No. P/46/66 was for
a. Declaration of ownership of “Ozugboko” land
b. N1000 damages for trespass.
c. Perpetual injunction
10. The judgment in Suit No. P/46/66 was further confirmed on appeal to the Supreme Court in Suit No. SC/23/1980 – CHIEF VICTOR WOLUCHEM & ORS. VS. CHIEF SIMON GUDI & ORS REPORTED IN 1981 5 S.C. PAGE 291.
11. The plaintiffs claim in the instant suit is entirely speculative, vexatious, an abuse of process and legally untenable. This is more so having regard to the subsisting judgments of Allagoa C.J. and the apex Court – Suit No. P/46/66: SC/23/1980 WOLUCHEM VS. GUDI.
12. The second set of Defendant would rely on survey plan number BOE/RO4|96 – LD made on the 25/3/96 by B.O. Ejekwu licensed surveyor. The said survey plan shows clearly the relationship between Surveys Plan No. CTN/66/L/D dated 8/2/86 relied upon by the plaintiffs and survey plan NO. UND/29/64B dated 12/3/73 with which the plaintiffs in Suit No. P/46/66 obtained judgment before Allagao C.J.
13. The plaintiffs in this action are attempting to relitigate a cause of action over which the Highest Court in Nigeria has pronounced upon.”
On 19-7-96, the 2nd set of defendants filed an application praying for among other things:
“(1) for an order staying further proceedings in this suit pending the determination of prayer 3 below
(2) for an ORDER to hear this motion out of its ordinary turn (i.e. ACCELERATED HEARING)
(3) for an ORDER dismissing the plaintiffs claim and/or the proceedings in this case.
(4) ……………………………………..
(5) TAKE FURTHER NOTICE THAT THE GROUNDS of the instant application include res judicata Abuse of judicial process and issue estoppels”
The application was supported by 8 paragraph affidavit against which the plaintiffs/respondent filed 7 paragraph counter-affidavits. Further affidavits were subsequently filed by the parties.
Hearing of the application came up on 9/5/2005. Ruling was delivered on 12- 2-2007. In his ruling Kobani J. held as follows:
“I therefore hold that the parties are the same’ and that the judgment of Allagoa J can sustain a plea of estoppel per rem judicatam. This application therefore succeeds and the suit is hereby dismissed on ground of estoppel per rem judicatam'”
Being dissatisfied with the above ruling the appellants filed an appeal on 26/2/2007. After the transmission of record of appeal to this court parties to this appeal exchanged briefs of argument.
The appellants brief was deemed filed on 27/5/1009.
Learned senior counsel for the appellants formulated 4 issues for determination in his brief they are:
“1) Did the learned trial judge apply the settled legal conditions to be met before a previous judgment can be held to be res judicata in a subsequent proceedings having regard to the entire facts of the case before it?
2) Did the learned trial judge consider the effect of the previous judgments tendered during the trial by appellants in proof of the fact that 1st set of Respondents were customary tenants to appellants and the legal implications of the said judgment when compare with the judgment Exhibit A relied on for the application leading to the dismissal of appellant claim?
3) Was the learned Trial Judge right in the use of derogatory remarks against the appellants counsel and was there any justification for the said remark?
4) Was there any basis to dismiss appellants claim having regard to the entire facts of eth case particularly the finding by the lower court that 1st set of defendants have no defence to the appellants claim?”
Learned Senior Counsel for the appellants reviewed the motion of the law as laid down in several cases and the Exhibit’s tendered. He submitted in conclusion as follows:
“In conclusion and having regard to all that has been submitted above we urge on this Honourable Court of Appeal to allow this appeal, set aside the judgment of the court below and in its place enter judgment for the Plaintiffs/Appellants against the 1st set of Defendants/Respondents.
REASONS
1) The 2nd set of Defendants/Respondents did not satisfy the requirement of the law to enable the court below grant the application raising estoppel per rem judicata.
2) The parties in both suits are not the same as fond by the learned trial judge and Applicants’ counsel.
3) The subject matter or extent of land covered by the previous judgment relied on was only 26 Acres verged pink in the survey plan used in the case as the injunctive relief which was granted was limited to that portion only.
4) The judgment of Irikefe JSC alluded to the area covered by the judgment as stated above and that Applicants in the suit did not quarrel with the way other parts of the land was being used apart from the area verged pink of 26 acres.
5) Even though 2nd set of Defendants/Respondents asked for a declaration of the whole land verged green the court never made such a declaration to entitle the 2nd set of Defendants/Respondents to use it as res judicata.
6) By necessary implication since 2nd set of Defendants/Respondents in the previous suits did not appeal against the refusal to grant the relief as prayed for they cannot contend to the contrary as the same is deemed to have refused.
7) The issue of extend of land covered by the previous judgments was decided against the 2nd defendants/respondents previously by Odili (JCA) as a Magistrate in a criminal proceedings when the same issue arose for determination between 2nd set of defendants and 1st set of defendants.
8) The 2nd set of defendants/respondents knew the area covered by the previous judgment which they sold to a 3rd party in an agreement tendered as Exhibit “M” without qualifying the sale of the part of what they won at the Supreme Court.
9) From the amended composite plan filed on behalf of the 2nd set of Respondents to show that the land in dispute in this case is the same as the previous case indicated that part of the land in dispute in this case is outside the area claimed to be covered by the said judgment and in particularly a very large chunk of the area put in dispute by 1st set of Defendants/Respondents is outside the are claimed to be covered by the previous judgments.
10) Trial Judge remarks about counsel to the Appellants’ were mast unwarranted and not expected because they tend to run down counsel for being incompetent. In any event there was no justification for the said derogatory remarks.
11). The previous judgments tendered by Appellants against 1st set of Defendants/Respondents proved that they are customary tenants to appellants. The said judgments were directly on the land in dispute with specific direct pronouncement hence the lower court concluded that 1st set of Defendants/Respondents have no defence to Appellants’ action on the face of the said judgments. Therefore the Court ought to have given judgment in favour of Appellants against the 1st set of Defendants/Respondents.
12) Arising from all that has been summarized above there was no basis for the learned trial judge dismissing Appellants’ claim. More particularly 2nd set of Defendants/Respondents in their submission stated that the prayer for dismissal can only affect 2nd set of Defendants/s/Respondents and Appellants who were parties in the previous suit.
13) Appellants are entitled to judgment against 1st set of Defendants/Respondents’ having tendered all the evidence necessary for the lower Court as well as the Honourable Court of Appeal to make the said Order.”
The 2nd set of Respondent also filed Respondents brief which was deemed filed on 4/11/2010.
Learned Senior Counsel for the 2nd set of Respondent formulated two issues for determination to wit”
1) Whether the second set of Respondents (applicants in the motion for dismissal of the suit on ground of Respondent Judicial) made out their case as required by law.
2) Whether the trial Judge Kobani J, was right in the manner he evaluated Exhibit L and ultimate weight attached thereon.”
Learned Senior Counsel for the 2nd set of Respondent reviewed the various judicial decision on RES JUDICATA including IGWEGO V. EZEUGO (1992) 6 NWLR PART 249 Page 561 along with the evidence adduced and submitted that the applicants made out their case as required by law and urged the court to resolve issue (one) in their favour.
On issue two learned senior counsel submitted that Exhibit L, being a judgment of Chief Magistrate no matter how erudite and well-researched could never make a binding declaration over interest in land. He urged court to answer the second issue in the affirmative.
He concluded by urging this court to dismiss the appeal for the following reasons.
“(i) The second set of Respondent make out an the evidence a clear case of Res Judicata.
(ii) A decision of a Magistrate Court in a criminal trial cannot set aside, derogate from or in any other way nullity a pre-existing judgment of a High Court duly endorsed by the Supreme Court.”
Appellants also filed Reply brief which was deemed filed on 25/5/2011.
I have carefully considered the submissions of learned counsel on both sides as well as the contents of the Records of Appeal transmitted to this court.
I am of the respectful view that the issues formulated by the learned Senior Counsel for the Respondents embrace the issues formulated by learned senior counsel for the appellants except for issue 3 formulated by the appellants which I will treat separately in the course of this Judgment.
Now to the two issues.
“1) Whether the second set of Respondents made out their case as required by law”‘
The principles guiding the plea of respondent judicata have been settled by several judicial authorities some of which have been most brilliantly discussed in the various briefs filed by learned senior counsel on both sides.
In the recent case of ALAPO V. AGBOSERE (2010) 42 NSC QR 15, Oguntade JSC had this to say on the plea;
“The simple issue in dispute as I observed above is whether or not the property previously litigated upon by the parties is the same one in dispute in the current case. In EKPOKE V. USIFO (1978) 6 – 7 SC. 187 at 198 – 199 this Court per OBASEKI JSC observed.”
“To found a plea of estoppel per rem judicatam the defendant/respondent had to satisfy the court that
(1) The parties were the same
(2) That the land was the same and
(3) That the subject matter of the claim was the same.
In considering a plea of Res Judicata one of the Criteria of the Identity of the two actions is the inquiry whether the same evidence would support both. MADUKOLU & ORS. V. NKEMDILIM (1962) 1 All NLR 587: See also AGUMWA V. ONWUKWE (1962) ALL NLR 537; COKER V SANYAOLU (1976) 9 – 10 SC 303″
In the earlier case of ABUBAKAR V BEBEJI OIL & ALLIED PROD. LTD (2008) 15 WRN 1 at 59 Tobi JSC, explained the plea of estoppel per rem judicatam thus,
“It is now well settled in a long line of decided authorities thus that where a court of competent jurisdiction has settled, by a final decision the matters in dispute between the parties none of the parties or Respondent, privy/privies may relitigate that issue again by bringing a fresh action. The matter is said to be Res Judicata” His lordship, Tobi JSC earlier in the judgment at page 52 lines 25 – 30 defined parties to “include privies in blood and estate. Executors (including executor deson fort) trustees, beneficiaries, assigned assignees lesser, lessees and guardian – ad idem.”
I shall view this appeal in the light of the above decisions.
In making a plea of res judicata the applicants now Respondents relied heavily on Suit No. P/46/66 – WOLUCHEM V. GUDI a case between
1) Chief Victor Woluchem
2) Chief Dick Nwari
3) Chief Gabriel Katagbor
4) Chief Samuel A. Dede
5) Chief Lagarus Brown
6) Chief Magnus Brown
(for themselves and as representing the people of Elekahia – Diobu)
AND
1) Chief Simon Gudi
2) Chief Kaiser Ajwa
3) Chief Benjamin Amadi
4) Chief Genesis Otapo
5) Lawrence Pina
6) Richard Ounigbo
7) Chief Clement Adali
8) Chief Benjamin Ada
(for themselves and as representing the people of Abuloma in Okrika Clan),
The parties in the case now on appeal i.e. PHC/328/85 are:
1) Chief Jonah IKALAMA
2) Chief Festus Obu
3) Mr. Sunday Obe
4) Benjamin Ada
(for themselves and as representing the people of Abuloma in Okirika Clan Port Harcourt).
AND
1) Mr. Velvet Edward
2) Elder Israel Tamuno
3) Elder Edwin Abel Okuru
4) Elder Isaac Oyyah
5) Mr. Cyprian Amakiri
6) Mr. Christopher Peters
(Fur themselves and as representing the people of Okuru Village Okirika Clan Port Harcourt)
AND
7) Chief Anthony Worlu Akanola-Ahiolu
8) Chief Joseph Amadi Ogbonda
9) Chief John Amadi Mgbah
10) Chief Ebenezer Nyeche
11) Mr. Samuel Ejewu Nbinye
(For themselves and on behalf of the people of Elekahia Community Diobu)
The 2nd set of Respondents in the case now on appeal were the plaintiffs in Suit No. P/46/66.
The plaintiffs in the case now an appeal were the defendants in Suit No. P/46/66.
The 1st set of Respondents In the case now on appeal were not parties in Suit No. P/46/66.
Who are the 1st set of Respondents (but defendants before the court below)? In paragraph 4 of their further Amended Statement of Defence, they averred as follows:-
“Paragraph 3 of the statement of claim is denied. The land in dispute is part of the defendants’ land. It is the subject of a High Court Judgment Suit No. P/46/66 in which the Elekohia-Diobu people obtained judgment for title, trespass and injunction against the present plaintiffs. The said action went up to the Supreme Court as SC/23/1980 (reported officially in 1981 5 S.G. page 291 – CHIEF VICTOR WOLUCHEM & ORS. VS. CHIEF SIMON GUDI & ORS.) The defendants were put on this land by the – Elekohia, Diobu people. Reliance will at the trial of this suit be placed on the following:
(a) The pleadings and proceedings in Suit No. P/46/66 up to the Supreme Court.
(b) Plan No. UND/29/648/RS of 5th November 1964 and amended 12th March, 1973.
(c) Defendants’ Plan No. ONC/86/R57 – LD.
(d) Defendants’ Plan No. MG/RV234/89.
(e) Government Plan Port Harcourt N.W. Sheet 334 N.W.
(f) Letter dated 21/11/83 – titled “Nipping by the bud”.
In other words they claim to derive their title from the 2nd set of Respondents, i.e. they are privies. In fact the averment of the 1st defendant in paragraph 5 of their further Amended Statement of Defence was not denied in the Amended Reply of the plaintiffs. The said paragraph 4 of the further amended statement of defence reads.
“5. Paragraphs 4 – 9 of the statement of claim are denied. The defendants will put the plaintiffs to the strictest proof of the allegation of fact therein contained. The defendants will in further answer repeat paragraph 4 above. The defendants claim through the said Elekohia – Diobu people vis-a-vis the land presently in dispute.”
That apart, a further averment in respect of the above by the applicants (now Respondents in their appeal) in paragraph 6 of their further affidavit which reads.
“6. The 1st set of Defendants were put in this land by the 2nd set of Defendants – Elekahia Diobu people and which was the subject of a High Court judgment in Suit No. P/46/66 which was later affirmed by the Supreme Court in Suit No. SC/23/80.”
was not controverted in the Respondents’ (now appellants in this appeal) further counter affidavit. It seem beyond dispute that the 1st set of defendants (now 1st set of Respondent) derive their title from 2nd set of defendants (now 2nd set of Respondents in this appeal).
The next question is what was the subject-matter of Suit No.P/46/66? It was the piece of land delineated in survey plan No. U.ND. 29/46/BRS. Tendered and admitted as Exhibit B in the case now on appeal. Under the column tagged References in the plan, “the part of “OZUGBOKO LAND” trespassed upon by (DEFENDANTS)” by planting oil palm trees and destroying plaintiffs oil bean trees oil palm trees and juju shrine is described as cause of ACTION and verged pink.
The plaintiffs in Suit No. P/46/66, however in paragraphs 7 and 15 of their statement of claim averred as follows:-
“7. The remaining portion of the parcel of land and which is now in dispute with the defendants is bounded in the north by the said Trans-Amadi Industrial Layout, on the East by Okpoka Rivers, on the West by Amadi Creek, and on the South by the Okpoka river and Amadi Creek up to where they merge. This area (hereinafter called the land in dispute) is more particularly delineated and verged green in the attached survey plan. No. UND/29/64 BRS.
15. During the month of March 1966 the defendants invaded the western corner of the land in dispute, cleared an area and planted oil palm tress therein. In the process of clearance, the defendants felled down economic trees such as palm trees, Oil bean trees, mango trees, young Iroko trees and cassava farm of the plaintiffs, and also destroyed the Elikohta shrine. The defendants now claim ownership of the entire area from Okpoka river to Amadi creek and as delineated in the plan first above mentioned. The area actually cleared by them is verged pink in the said plan.”
The area registered green an Exhibit A was the subject matter of the Suit No. P/46/66.
In fact in his Judgment on page 12 in Exhibit A Allagoa J. had this to say
“Applying that principle in this case which is not very different from the facts in that case I find that having regard to the geography of the land which is surrounded on the West and South by other lands of the Plaintiffs which fact the Defendants are now belatedly challenging that it was the plaintiffs who are a simple and unsophisticated Community as owners of the land in dispute called Uzogboko who allowed the Defendants ancestors who are from Okrika to settle in the area verged yellow for purposes of fishing and also allowed them to exact a Church and School for their convenience. “This matter is clear that the claim for declaration of title of ownership” as per paragraph 19 of their statement of claim was granted.
The area verged pink referred to on page 13 of the Judgment of Allagoa J. was the area 26 acres of land cleared for palm trees by the defendants in respect of which the plaintiffs were awarded N500 as general damages.
What is the subject matter of the Suit No. PHC/328/85 now on appeal.
By paragraph 12 of their statement of claim, the plaintiffs in PHC/328/85 claimed as follows:-
“WHEREFORE the plaintiffs institute these proceedings and claim as follows, that is to say:-
1) A declaration of statutory right of occupancy to the piece or parcel of land known as ELIOKIA as depicted and shown on survey plan No.CTH.66(L/D) prepared by Mr. G.T. Horsfall, Licenses Surveyor, Lying and situate in Abuloma Okrika Clan in the Port Harcourt Local Government Area of the Rivers State of Nigeria within the Jurisdiction of this Honourable Court.
2) The sum of N500,00.00 (Five Hundred Thousand Naira) being damages for trespass committed by the 1st set of Defendants in January 1985 on the said piece or parcel of land in possession of the plaintiffs.
3) Perpetual injunction restraining the Defendants by themselves, their privies, servants and/or agents or otherwise howsoever from further trespassing on the plaintiffs’ piece or parcel of land aforesaid.”
The 2nd set of defendants who were also the applicants at the court below tendered Exhibit C which was a composite plan incorporating the land in dispute in the instant case in to the land in dispute in the judgment of Allagoa J.
The plaintiffs/appellants presented a survey plan but it was not a composite plan. The plaintiffs called Clinscent Tennyson Horsfall, a land surveyor, who never had the opportunity of comparing the plans presented by the parties together. In other words he could not discredit or even comment on the accuracy or otherwise of the composite plan presented by the 2nd defendant and the plan of the land subject matter of the land in the judgment of Allagoa J; Exhibit B.
The surveyor called by the 2nd defendant; Chief Bodume Onasikwom Ejekwu tendered the composite plan prepared by him and it was admitted as Exhibit C. He compared the dispute plan tendered by the plaintiffs with the survey plan of (the 2nd defendant before preparing Exhibit C.
He was cross-examined extensively by learned Senior counsel for the plaintiffs but was not shaken under cross-examination. No wonder the learned trial judge accepted Exhibit C as accurate and relied on it Kobani J, the learned trial judge discountenanced Exhibit D and came to the unimpeachable conclusion that the subject matter of thE Suit No. PHC/328/85 (now on appeal) is the same with Exhibit B, the subject matter of Suit No. P/46/66. On pages 176 – 177 of the record, Kobani J., in his judgment had thus to say;
“The evidence of the judgment in this case is the judgment itself and the survey plan on which it was based. That plan is Exhibit B. Regrettably, while the applicants’ surveyor did a superimposition of the plans, the respondents’ surveyor did a superimposition of the plans, the respondents surveys did not. What is more he did not even see Exhibit B before producing Exhibit D so it is hardly surprising that there is no relationship between Exhibit B and Exhibit D, even though in reality they are the same subject-matter except that respondents’ surveyor cleverly scattered mushroom causes of action all over the place which in reality is the same area verged green in Exhibit B.
The plaintiffs call their land Elekaohia while the 2nd set of defendants call theirs Ozugboko. The law is that the fact that different names are ascribed to the land or that the area where it is located is called by different names is not fatal to the case of the party claiming it. The 1966 judgment proved this because the fact that the defendants therein gave it a different name was not fatal to the case of the plaintiff therein. See Asiemo vs. Abraham (1994) 8 NWLR (Part 361) 191 at 217 E – F. I cannot ignore the evidence or the respondents’ surveyor under cross-examination that he included in his plan what his clients asked him to include. When asked whether he would show on the plan what his client does not want him to show even when in his professional judgment it was material, he prevaricated by repeating that he shows on the plan what his client wants him to show. The implication is unmistakable, that he shows on his plan what his client wants him to show even though it is not physically there. That was how causes of action were proliferated on his plan Exhibit D. I am convinced that the subject-matter in both cases is the same.”
I am not unmindful of the submission of learned senior counsel for the appellants that Allagoa J., did not make specific declaration of title in favour of the plaintiffs now 2nd set of Respondents in this appeal in Suit No. P/46/66. This submission, is with due respect, not attractive to me for the following reason:-
(1) Ownership of the land in dispute was an issue before Allagoa J., in Suit No. P/46/66. Both the plaintiffs and the defendants claimed ownership of the said land in their pleadings. See paragraph 4, 5, 7, 15 and 19 of plaintiffs’ statement of claim and paragraphs 4, 8, 9 and 10 of the defendants’ statement of defence Allagoa J., resolved the issue of ownership on page 25 of judgment and found that the plaintiffs were the owners.
(2) What is queer about the above submission of learned senior counsel; with due respect is that the appellants now seem to be challenging what according to Irikefe JSC stated (as quoted on page 19 of Appellants brief) that is the Appellants did not appear to be quarreling within the judgment of the Supreme Court in respect of the appeal in respect of the Eene Judgment of Allogoa J.”
There is no doubt that the judgment in Suit No. P/46/66 is a final judgment.
I hold that there are enough facts on record to justify the findings division of the learned trial judge in this appear. The decision of the Court below dismissing the Suit is unimpeachable in my respectful view.
Now to the other Judgments tendered by the Plaintiffs/Respondent/Appellant Exhibit G, H, K, Exhibits G. and H according to DW2 in his evidence on page 49 of record relate to the rand in dispute.
Exhibit K is the certified True Copy of the Judgment in Suit No.78/55 between Chief Benjamin Okuru and Abraham Godo.
Exhibit L is the judgment of Magistrates’ Court in PME/989c/82 in a Criminal case.
I must state right away that since Exhibits G and H relate to the rand is dispute and I have earlier held that the rand in dispute in Suit No. P/46/66 relates to the rand in dispute is this appear and Exhibits G, H and K preceded Suit No. P/46/66 they ought to have been used in their case in Suit No. P/46/66 Suit No. P/46/66 was appealed against and the decision of Allagoa J., was affirmed by the Supreme Court. It appears to me too late in the day to present Exhibits G, H and K.
Exhibit L is a Judgment of an inferior court in a Criminal matter. Whatever interpretation the Magistrate court gave to the Judgment of a High Court cannot by any stretch of imagination bind a superior court of record.
The interpretation of a Judgment of a High Court in a Civil case by a magistrate in exercise of His criminal Jurisdiction even when not appealed against cannot, in my respectful view be binding on a High Court neither can it operate as an estoppel since a magistrates’ court is not competent court on such a matter. See section 36 and 41 of the Land Use Act. See BALOGUN V. ODE (2003) 4 NWLR (PART 1023) 1 DOKUDO V. OMONI (1990) 8 NWLR (PT.616) 640 OSHODI V. EYIFUNMI (2000) 7 SC. (PART J) 145. See also ALAPO V. AGBOKERE (2010) 42 NSCQR (Part 1) Page 1 at 13. For the above reasons I am in full agreement with the decision of the Learned Trial Judge in dismissing the submission of Senior Learned Counsel on Exhibit L.
Issue iii as formulated by the learned senior counsel for the Respondent remains to be considered.
It reads “was the learned trial Judge right in the use of derogatory remarks against appellants’ counsel and was there any justification for it? This issue is drawn from Ground 10 of the Grounds of Appeal.
I must state that it is not every error in a case that will result in an appeal being allowed. Only an error that is substantial and that occasions miscarriage of Justice will. See NWAEZE V. THE STATE (1996) 2 NWLR (PT 428) 1.
Ground 10 of the Ground of Appear and issue III are not on a matter that occasioned miscarriage of Justice. They infact do not affect the substance of the decision of the lower court. An appeal is usually against the ratio decidendi of the Judgment of the lower court and not in respect of obiter dicta except where such obiter dicta has influenced the ratio decidendi of the lower court. See SAUDE V. ABDULLAHI (1989) 4 NWLR (PT.116) a 387. The comments of the Learned Trial Judge appealed against are shiftable and separable from the ratio decidendi of the Lower Court in this appeal. It seems to me that Ground 10 of the Appellants Ground of Appeal violates to ORDER 6 RULE 3 of the Court of Appeal Rules 2007 and 2011 in that it discloses no reasonable ground of appeal. Such ground is not permissible. Ground 10 is therefore incompetent. It is struck out. Issue III as formulated by the appellants is also accordingly struck out.
I must commend the learned senior Counsel on both sides for the brilliance and industry displayed in their briefs of argument. They have greatly assisted the Court in this appeal.
In the final analysis I resolve all issues formulated in this appeal in favour of the respondents. The Judgment of Kobani J. delivered on 12/2/2007 is unassailable and it is hereby affirmed.
I hold that this appeal lacks merit. It is therefore dismissed with N60,000.00 costs in favour of the Respondents.
ISTIFANUS THOMAS, J.C.A: I have read the lead judgment of my learned brother Awotoye, JCA, just delivered. I adopt the lead judgment as my own, and the appeal is dismissed.
I abide with consequential orders including costs.
EJEMBI EKO, J.C.A: I read in draft before now the judgment of my learned brother. T.O. Awotoye, JCA, just delivered. Straight away I am in complete agreement with my learned brother that this appeal lacks substance. It is frivolous and vexatious. The issue at the court below was whether the previous judgment in Suit No. P/46/66 operated as estoppel per rem judicatam in bar to the present suit. The learned trial judge found on facts that the land in dispute was the same land disputed by the appellants and the 2nd set of respondents in the Suit No. P/46/66. The present 1st sets of respondents are on the land as grantees of the 2nd set of respondent. They are ns doubt privies of the 2nd set of respondents. The ownership of the disputed land was resolved or decided in favour of the 2nd set of respondents in suit No. P/46/66 against the present appellants. These are findings of fact that are not perverse and which are supported by overwhelming evidence in record. It is therefore not right for us to disturb them. See OGIDI V. STATE (2003) 9 NWLR (Pt. 824) 1.
On the principle of Res Judicata, once the ownership of the disputed land had been decided in favour of the 2nd set of respondents by a court of competent jurisdiction, it remains the truth that the 2nd set of respondents are the owners of the land. In law, a thing conclusively adjudicated is received as the truth. It is far this reason that Res Judicata is an affirmative defence barring the same parties from litigating a second law suit on the same claim, or any other claim arising from the same transaction or series of transactions. See ABE v. ADENIYI (2007) 4 NWLR (Pt.1023) 191 at 193 – 194, 217.
Thus, as stated by ADIO, JSC in CHIEF SALAMI ADESINA & ANOR. V. THE COMMISSIONER IFON/ILOBU LAND COMMISSION, OSOGBO & ANOR. (1976) 4 SCNJ 112 at 119 what the principle of Res Judicata means is that where a competent court has determined an issue and entered judgment thereon neither of the parties to the proceedings may re-litigate that issue by formulating a fresh claim, since the matter is A plea of estoppet per rem judicatam, in effect, deprives the court the jurisdiction to determine as issue to which it relates. Cantankerous and vexatious litigants, like the instant appellants, may not like it. The principle of law is designed to reinforce the public policy that demands that there must be an end to litigation.
The third issue formulated from the 10th ground of appeal is whether the learned trial judge was right in the use of derogatory remarks against the appellants’ counsel without justification? The alleged use of derogatory remarks on the appellants’ counsel was nothing but a mere obiter dictum, which was neither the basis for the decision nor did it in any way constitute or influence the ratio decidendi. Generally, obiter dictum cannot form the basis of a ground of appeal. See SAUDE V. ABDULLAHI (1989) 4 NWLR (Pt. 116) 387.
Appellants’ counsel naturally may be aggrieved by derogatory remarks made concerning him in a judgment. He can only appeal those remarks if he was himself a party in appeal, but not a climber on the back of others to ventilate his own grievance. I say no more. Suffice to say that both the 10th ground of appeal and Issue iii formulated there from are incompetent. Accordingly, they are hereby struck out.
As I concur or agree with the judgment of my learned brother, T.O. Awotoye JCA just delivered; I hereby adopt it, including the consequential orders made therein. The appeal being frivolous and vexatious is hereby dismissed with N60,000.00 costs in favour of the respondents.
Appearances
A. Akpomudje (SAN);
J. C. OnuohaFor Appellant
AND
F.C. Ofodile {SAN);
B.C. Ugwu and
T. AsobanFor Respondent
