ELDER OGBONNAYA ONWUCHEKWA & ANOR v. CHIEF PETER CHUKWU ONWUEGBU & ORS
(2013)LCN/6069(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of March, 2013
CA/PH/451/2006
RATIO
“I shall hereby place reliance on the Supreme Court case of A.I.E. V. ADEBAYO (2005) 12 SCNJ 106 AT 142 which held as follows: “…As far as the facts of any given case are concerned, the Address of counsel is supposed to deal only with the evidence before the court. But the mere mention of matter in the course of such Address is never a substitute for the evidence that has not been led. Nor can it supplant the inadequacy of the evidence given at trial.” I shall still state here even at the risk of repeating myself, that address or argument of counsel is not a substitute for pleadings and evidence in support of facts alleged. The case of the parties is adequately presented in their pleadings and evidence adduced before the court and to that effect, the learned trial judge’s omission does not occasion any miscarriage of justice. It may be termed a mere irregularity which does not vitiate the proceedings. It is my humble opinion therefore that the Plaintiffs/Applicants where given fair hearing and no miscarriage of justice was occasioned as learned counsel’s arguments were fully taken into consideration by the trial Judge.” Per EKPE, J.C.A.
“It is well settled law that not every slip a Judge will result in an appeal being allowed except the slip is substantial. Not so in this case. See the following cases: 1. OSENI V. DAWODU (1994) 41 SCNJ PT. 2 P. 197. 2. OTITIOJU V. STATE (1994) 4 SCNJ PT. 2 P. 224. 3. ELEOKE V. NWAGBO (1988) 1 NWLR PT.72. 4. NWOSU V. IMO STATE ENVIRONMENT AUTHORITY (1990) 2 NWLR PT. 135 P. 688 5. ONWUKA V. OMOIGUI (1992) 3 NWLR PT.230 P.393.” Per EKPE, J.C.A.
“It is trite that for Estoppel per Rem Judicatem to be pleaded and relied upon the following conditions must be satisfied; (i) That the parties or their privies in the previous and present suits are the same. (b) That the claim and the issue in both cases are the same, (c) That the subject matter of the litigation in the previous and present suits is identical, (d) that the issues in both suits were finally settled in the previous. See Intercity Bank Plc v. Fasisal Travel Agency Ltd. (2006) 4 NWLR (pt. 971) 504 at 525; Nwaneri v. Oriawu (1959) SCNLR 316; Oke v. Atoloye (no. 2) (1986) 1 NWLR (pt 15) 241. See also section 54 of the Evidence Act. The rule simply requires that where a final decision is given by a Court of competent jurisdiction, the parties thereto cannot be heard to contradict that decision in any subsequent litigation between them respecting the said subject matter. The rule effectively precludes a party to an action, his agents and privies from disputing against the other party in any subsequent suit matters which had been adjudicated upon previously by a Court of competent jurisdiction between him and his adversary involving the same issues. See Adone v. Ikebudu (2001) 14 NWLR (PT 733) 285: Ukaegbu v. Ugoji (1991) 6 NWLR (PT 196) 127.” Per AJI, J.C.A.
JUSTICES
UWANI M. ABBA AJI Justice of The Court of Appeal of Nigeria
JOHN I. OKORO Justice of The Court of Appeal of Nigeria
PHILOMENA M. EKPE Justice of The Court of Appeal of Nigeria
Between
1. ELDER OGBONNAYA ONWUCHEKWA
2. DICK OGBU EKEOMA Appellant(s)
AND
1. CHIEF PETER CHUKWU ONWUEGBU
2. EME AKA
3. JOHN OTAFELIX OFOR OKOROCHA
4. CHIKE LEKWEUWA
5. BEN I. EME
6. EMMANUEL UKAEGBU
7. ELIJAH ANYASO Respondent(s)
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Abia State sitting at Igbere delivered by Hon. Justice S.F. Analaba on the 30th day of May 2006.
The Appellants as claimants instituted an action against the Respondents at the Abia State High Court holden at Igbere over the piece or parcel of land known as and called “ASUKWU” lying and situate at Amakalu, Alayi in Bende Local Government Area of Abia State. The said Appellants suing in a representative capacity claimed declaratory and injunctive reliefs and also claimed damages for trespass.
The defendants/Respondents in their statement at para. 8 averred that the land in dispute is made up of two parts: “IYIOBA” and “OKPUKPUENYI.” They further stated that the said land in dispute was the subject of a suit decided by the Alayi District Court in Civil case No. 149/53 in favour of the defendants. That the said judgment was affirmed by Bende Country Court on the 4th day of July 1961 and ultimately affirmed by the High Court, Umuahia in Suit No. HU/27/65.
The Plaintiffs/Appellants relied on a survey Plan No. ASA/ABDO5/2000 to delineate the area of the land, its boundaries and other features on the land. The Defendants/Respondents also filed their statement of defence as seen at pages 39 – 41 of the record where they claimed in para. 3 that the land in dispute consists of two farmlands called “IYIOBA” and “OKPUKPUENYI”, property of the descendants of Elugwu Amankalu Alayi. That the purported Asukwu land is completely different from the land in dispute exhibited in Survey Plan No. TOP/AB-01/3/2/D.
The Defendant/Respondents also maintained that the ownership of the land in dispute Iyioba and Okpukpuenyi was settled in January, 1954 by the judgment of the Alayi District court in civil case No. 149/53, and upheld by subsequent courts.
The Defendant/Respondent also contended that the suit was caught by the doctrine of RES JUDICATA being incompetent, manifestly defective and improperly constituted and ought to be dismissed. See para. 14 of their statement of Defence at pg. 41 of the Record of Appeal and the application filed on the 15th day of April, 2002.
On the 28th day of May 2002, the plaintiff/Appellants filed a counter affidavit opposing the application. See paras. 54 – 57 of the records. However, on the 20th day of June 2005, the learned trial judge ordered both learned counsel to file written addresses to support their positions in respect of the application. Respondent’s counsel filed his address on the 14th day of July 2005 while the Appellants counsel filed his on the 26th day of July 2005. See pages. 60 – 69 of the record.
On the 10th day of October 2005, the learned trial Judge gave his considered ruling on the application and set down the matter for hearing on the points of law raised by the Defendant/Respondent in para. 14 of their statement of Defence.
On the 16th day of February, 2006 the Defendant/Respondents then filed a motion on notice asking the High Court to dismiss the suit, same having been caught by the doctrine of RES JUDICATA. On the 17th day of February 2006 the Plaintiff/Appellant filed a Counter-Affidavit opposing the application at pages 247 – 248 of the record.
On the 21st of February 2006, both learned counsel were ordered to file written addresses in respect of the application and the Respondent’s counsel filed his address on the 7th day of March 2006 while counsel for the appellant filed his address on the 20th day of March 2006.
Consequently on the 30th day of March 2006, the learned trial Judge delivered, his ruling dismissing the suit in favour of the respondents, hence this appeal.
Learned counsel for the Appellants filed his brief of argument on the 25th day of January 2012 while counsel for the Respondent filed his own brief of argument on the 29th day of August 2012. Both learned counsel formulated two similar issues for determination which I intend to couch as follows:
“1. Whether the documents exhibited to the motion on notice filed on behalf of the Respondents sufficed to determine the issue of estoppel per rem judication without parole evidence.
2. Whether the Appellants suffered a miscarriage of justice by the fact that the lower court failed to consider the address of appellants counsel.”
The argument of learned counsel for the Appellant on issue No. one is that the learned trial Judge merely premised the decision to dismiss the suit on the basis of estoppel per rem judicatam on the judgment of Alayi District Court, the decision of Bende Country Court on appeal and the Survey Plans filed in the suit at Alayi District Court. He further argued that parole evidence would have shown whether the land claimed by the Appellants called “ASUKWU” is the same as the land called “IYIOBA” and OKPUKPUENYI. That documentary evidence relied on by the learned trial Judge did not support the finding that the land in dispute in suit No. 149/53 called “IYIOBA” and “OKPUKPUENYI” are the same as the land called “ASUKWU” claimed by the Appellants in the present suit now on appeal.
Learned counsel then referred to page 83 of the record of appeal where PW1 Chukwu Onwuegbu in his evidence at lines 5 – 9 stated that “Iyioba” and “Okpukpuenyi” lands are situate at different places and that the District Court Alayi inspected the land in dispute and made the following findings at pg. 94 lines 47 – 50 of the records thus:
“In our inspection we discovered that the “Iyioba” land is entirely different from “Asukwu” land and is not within the Asukwu…the parties did not show us the Okpukpuenyi land in our inspection.”
Learned trial Judge reached the conclusion that the said land litigated in suit No. 149/53 before the District Court Alayi is the same as Asukwu land, the subject matter of the suit filed at the High Court Igbere by the Appellants. Counsel for the Appellants further submitted that for a plea of res judicata to be sustained, the party relying on it must inter alia, shown that the decision in the earlier suit will determine the same question as that raised in the latter litigation. He then cited the case of DAKOLO V. REWANE DAKOLO (2011) ALL FWLR (PT.592) 1610 AT 1622 – 1623 PARAS. F – B and opined that the judgment in Suit No. 149/53 did not decide the same question as in the suit now on appeal to this court. That Estoppel per rem judication is a rule of evidence and not a rule of law as evidence is required for purposes of establishing it. That documentary evidence which was proffered by the Respondents did not establish it and that it was wrong for the learned trial Judge to have found otherwise. Learned counsel however, concluded that there was nothing to show that the survey plan annexuse “D” was the one used in Suit No. 149/53 as there was no identification mark. He then urged the Court to resolve this issue in favour of the appellants.
On the 2nd issue for determination, whether the Appellants suffered a miscarriage of justice when the lower court failed to consider the address of appellant’s counsel this occasioning a denial of fair hearing, learned counsel for the Appellant submitted that the mere fact that the court below failed to consider learned counsel’s address amounts to a denial of fair hearing, thus vitiating the proceedings and rendering them null and void. He then cited the cases of A.G. FEDERATION V. ALI ABACHA (2011) ALL FWLR (PT. 566) 445-475 PARA. A and SALEH V. MONGUNO (2003) 1 NWLR (PT.801) 221.
Learned counsel then concluded that there was no material placed before the learned trial Judge on the basis of which he could hold that the suit before him was caught by the doctrine of Estopel per rem judication in the absence of parole evidence.
In his reply to issue No. 1, learned counsel for the Respondents stated that the Defendants/Respondents on the 6th day of February 2006 applied to the court pursuant to order 24 Rules 27 & 3 of the High Court (civil Procedure) Rules of Abia State 2001, to dismiss the action, same being caught by the doctrine of Res judicata and attached the following documents in support of their claim:
(i) The Plaintiffs Survey Plan in the Suit – EXHIBIT A.
(ii) The Defendants Survey Plan in the Suit – EXHIBIT B.
(iii) The Record of Proceedings from the Alayi Native Court to the County Court at Bende – EXHIBIT C.
(iv) Survey Plan used in the proceedings at Alayi Native Court to the County Court Bende – EXHIBIT D – D1.
(v) Judgment of the Umuahia High Court in HU/27/65 – EXHIBIT E.
(vi) The Summons to Settle Records in respect of the abandoned Appeal by the Plaintiffs against the Judgment of the Umuahia High Court – EXHIBIT F.
(vii) Judgment of the Chief Magistrates Court convicting the Plaintiffs of sundry offences in relation to the land in dispute – EXHIBIT G.
See Pages 171 – 246 of the Record of Appeal.
That the defendants contended in their statement of defence on Page 40 of the Record of Appeal, that the ownership of the land in dispute made up of “IYIOBA” and “OKPUKPUENYI” was settled as far back as January 1954 by the Judgment of the Alayi District court in case No. 149/53 which Judgment was confirmed by the Bende County Court on the 4th day of July 1961 and again ultimately affirmed by the Judgment of the Umuahia High Court in HU/27/65. That the Plaintiffs/Appellant in that suit appealed to the Supreme Court and later abandoned the appeal.
Learned counsel for the Respondents submitted that Estoppel per rem judicatam arises where an issue of fact has been judicially determined in a final manner between the parties or their privies, by a court or Tribunal having jurisdiction in the matter if the same issue comes directly in question in subsequent proceedings, between the parties and their privies.
That the plea applies where a court has given a final decision on the matter and there is no appeal against it. That it is used for the purpose of barring subsequent litigation on the same subject matter between the same parties. He then referred to the cases of:
1. OLORIEGBE V. OMOTOSHO (1993) 10 LRCN 46
2. AMAWO V. A.G. NORTH (1993) 6 SC. 47.
That the decision serves as conclusive evidence between the parties. See S. 54 of the Evidence Act which states thus:
“Every Judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the court, and appearing from the judgment itself to be the ground in which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.”
Learned counsel further submitted that for the principle to apply, the parties, issues and subject matter in the pending case must be the same as in the previous case and would also include their privies. See: NWANERI V. ORIUDA (1959) 4 FSC 132, ABIODUN V. FASANYA (1974) 11 SC 61.
That in determining whether the issues and subject matter of the two actions of the parties are the same, the court ought to study the pleadings, the proceedings of the Judgment including the issues in the previous proceedings. That the court may also examine other relevant facts to discover what was in issue in the previous case. See, FADIORA V. GBADEBO (1978) 3 SC 219.
Learned Appellant’s/Respondent’s counsel began by tracing the history of the case where one Chief Chukwu Onwuegbu sued on his and on behalf of the people of Elugwu Amankalu for the land which the Appellants called “Asukwu” while the Defendants called “Iyioba” and “Okpukpuenyi”. That in the present appeal the Plaintiff/Appellants are the people of Umuokpo while the Defendants/Respondents are the people of Amankalu thus making the parties the same. That the Plaintiffs/Appellant’s did not controvert the fact that the parties are the same in both suits.
Learned counsel also submitted that the issues in both suits are the same. That the issue in both suits is the ownership of the land in dispute called “ASUKWU” by the Appellants and “IYIOBA” and “OKPUKPUENYI” by the Defendants/Respondents. He further stated that in the previous case, the people of Elugwu sued for declaration of title to the land they referred to as “IYIOBA” and “OKPUKPUENYI” which the people of Umuokpo called “ASUKWU”. Also that in the present case an appeal, the Plaintiffs/Appellants have sued for declaration of title to the same land which they called “SSUKWU” and which the Defendants/Respondents now refer to as “IYIOBA” and “OKPUKPUENYI”. That in order to determine whether or not the subject matter of both suits is the same, it has become crucial and indeed pertinent to determine whether the land in dispute called “ASUKWU by the plaintiffs/Appellants is the same as that referred to as “IYIOBA” and “OKPUKPUENYI” previously adjudged to belong to the Defendants/Respondents.
Learned counsel for the Respondents in a further submission stated that the identity of the court is more crucial to the court than the various names given to the same pieces of land by both parties. That the court has a duty to compare the plans produced in order to resolve the identity of the land. See ADOMBA V. ADIASE (1990) 1 NWLR PT. 125 155 AT 180.
Learned counsel referred to paragraph 5 of their statement of defence at pages 39 – 41 of the record of appeal where the Defendants/Respondents pleaded thus:
“The Defendants however agree that the following features and boundaries indicated by the plaintiffs exist on the land namely”
1. The land of Umumbe kindred of Igbere.
2. The Ozuitem road which custs across the land.
3. Oruanta land of the Defendants
4. Stream located near the boundary with Umumbe Igbere (Omuofiarara).
5. Nsocha stream and the track road leading therefrom.
Learned counsel also drew the court’s attention to these same features with identical markings on the Defendants/Respondents Survey Plan Exhibit B. namely:
A- Ozuitem Road
B- Land of Umumbe People, Igbere
C- Oruanta land
D- Dimuofiarara stream
E- Nsocha stream
F- Earth Mound on the boundary with land of Agbama Okereke on Page 45 of the High Court’s Case File as medicated in Appendix A in the index to the record of Appeal.
Learned counsel reiterated the fact that both survey Plan are in tandem on these features as existing on the land in dispute called “ASUKWU” by the Plaintiffs/Appellants and ‘IYIOBA’ and “OKPUKPUENYI” by the Defendants/Respondents. Counsel further submitted that Exhibit D has the same features as Exhibit D1 corresponding with mathematical accuracy with the land called “ASUKWU” in Exhibit A and “OKPUKPUENYI” and “IYIOBA” in Exhibit B. That the evidence disclosed in exhibit D and D1 and the present Survey Plans Exhibit A and B show that the lands are the same with all the identical features common to them.
Counsel further stated that the Defendants/Respondents application to dismiss the Appellants action as being caught by the doctrine of res judicata was founded on the ground that a Declaration of Title to ‘Iyioba’ and ‘Okpukpuenyi’ lands subsists in favour of the people of Elugwu as against the people of Umuokpo. He referred to the judgment of the native court in Exhibit C as follows:
“Judgment for the plaintiff for his Iyioba and Okpukpuenyi lands.”
And also the judgment or the Bende County Court delivered on the 3rd day of July 1961 as follows:
“The land Iyioba belongs to PLAINTIFF …
ORDER: The Judgment of the Lower Court is confirmed…”
See, pages 193 – 194 of the record of appeal.
Again learned counsel referred the court to the decision in HU/27/65 where the judgment of the Magistrate Court Umuahia which had purportedly set aside the earlier decisions was nullified by the High Court and the appeal on that decision never came to fruition as it was abandoned by the Appellants and that decision extant and thus the decision that the lands “Iyioba” and “Okpukpuenyi” belonged to the respondents was never upturned by the Supreme Court on Appeal.
Learned counsel for the Respondent again made a further submission that the learned trial Judge having considered the pleadings of the parties before him, the evidence including the proceedings and judgment of the lower court and the survey plans it became unnecessary in the circumstance to call oral evidence. Counsel further contended that it is trite in land matters that proof of the identity of a piece or parcel of land is done by way of a survey plan showing ascertainable dimensions and boundaries. He then cited the case of AKPAN v. OTONC (1996) 12 SCNJ 228 and the case of ALHAJI ADEBOLA OLAKUNLE ELIAS V. CHIEF TIMOTHY OMOBASRE (1982) 5 SC. 25 AT 38, 39, 45 AND 46 where the Supreme Court held thus:
“1. In an action for declaration of title to land, the plan showing the area in dispute between the parties to the action must be presented.
2. If the plan cannot be presented, a surveyor or other persons should be called to identify the land in dispute.
3 This plan must be produced by the plaintiff to the action.
4. The plan must have been prepared by a licensed surveyor.
5. The plan must show clearly the boundaries and dimensions of the land and must be served on the defendant.”
Learned counsel further cited the case of EZEUDO V. OBIAGWU (1986) 2 NWLR (PT.21) 208 where the Supreme Court also held:
“Where a Party to a land in dispute had produced and tendered the survey plan showing the area he is claiming with certainty ad ascertainable boundaries, a party need not call a surveyor to testify before the court can attach credibility to such a survey plan.”
and further stated that on the strength of the above authorities, where a valid survey plans have been produced such as those relied upon by the parties in this case, the court can consider same and rely on them without calling oral evidence.
Counsel then stated conclusively that when a court of competent jurisdiction makes a finding of fact on an issue raised before it, such a finding is conclusive proof of those facts as against the parties to the dispute and until such a finding is reversed by a Higher Court, it remains binding on the parties. He further concluded that the findings of fact made by the trial court hence unchallenged remain valid and subsisting and urged this court to uphold same.
In respondents’ counsel’s reply to Issue Two, whether the appellants suffered a miscarriage of justice when the lower court failed to consider the written address of Appellant’s counsel, learned counsel for the Respondents referred the court to the case of GARBA V. OMOKHODION (2011) 6 SCNJ 347 PARA. 2 where the Supreme Court held that it is not every mistake or error made by a court that would lead to a reversed of a decision. The mistake or error must be fundamental and affect the crucial decision appealed against.
Learned counsel’s arguments is that this inadvertence is not fundamental as it did not in any way affect the Plaintiff/Appellants right to fair hearing. That the learned trial Judge rightly discharged his duty as he was bound to, by considering the pleadings of parties, their affidavit evidence as well as all the documents in support. He further opined that learned counsels written addresses merely contain arguments and opinions of counsel and not the evidence or pleadings of parties which are paramount in any case.
Counsel again stated that the learned trial Judge in his judgment inadvertently omitted to apply his mind to the written address of learned counsel to the Plaintiff/appellant. That in his judgment on page 281 of the record, the leaner trial Judge inadvertently concluded that learned counsel for the Applicants O. A. Obianwu (SAN) had filed a written address on the 7th day of March 2006 while learned Respondents counsel Y.O.C. Nwoke, merely indicated in para. 15 of his counter affidavit filed on 25-1-06 his reliance on the address filed in respect of the initial motion on notice by the applicants for an order setting down the point of law for hearing that meanwhile, the court had ordered counsel on both sides to file written addresses which they had both filed dated 30-3-06 and 20-3-06 respectively. See pages 270 – 278 of the record of appeal.
Learned counsel for the Respondents further contended that the trial judge then proceeded to analyse both addresses but failed to expressly comment on the final address of the then respondent’s counsel which was essentially the same as the earlier one which the same appellants had indicated that they would rely on. In his words:
“I shall rely on my earlier counter affidavit dated 25th of May, 2005 and written address dated 26/7/2007 which are processes in the courts file in this suit in addition to the facts deposed herein in opposing the instant motion which is merely repetition and which is a deliberate and calculated attempt to delay the diligent hearing and determination of this suit.”
Learned counsel then referred to the case of GARBA V. OMOKHODION (2011) 6 SCNJ 347 PARA. 2 where the Supreme Court held that it is not every mistake or error made by a court that will lead to reversal of a decision. That the mistake or error must be fundamental and affect the crucial decision appealed against.
Counsel further argued that this omission is not fundamental as it did not in any way affect the Plaintiff’s/Appellant’s right to fair hearing since the learned trial Judge discharged the duty imposed on him by considering the pleadings of the parties, their affidavit evidence as well as the documents attached to them in support. Counsel compared the two addresses filed by learned counsel to the Plaintiffs/Appellants and pointed out that the two addresses are similar in content except for the preliminary Objection in the 2nd address asking the court to dismiss the application of the defendants/Respondents merely on allegation of fraudulent misrepresentation without proof. He then concluded that the Plaintiffs/Applicants were given fair hearing as learned counsel’s arguments were fully taken into consideration by the trial Judge. That it is settled law that not every slip by a Judge will result in an appeal being allowed except such a slip is substantial and occasioned a miscarriage of justice. He then cited the case of OSENI v. DAWODU (1994) 41 SCNJ PT. 2 PAGE 197. And urged this court to so hold.
To begin with, I have accorded a very dispassionate, albeit critical consideration of the nature and circumstances surrounding the appeal, the arguments of learned counsel as contained in their respective briefs of argument vis-a-vis the record of appeal as a whole. On issue one: whether the documents exhibited to the motion on notice filed on behalf of the Respondents sufficed to determine issue of estoppel per rem judicatam. As a general principle of law where the plea of estoppel per rem judicatam is raised the court, in determining whether the issue the subject matter of the two cases and the parties are the same, the court is permitted to study the pleadings, the proceedings and the judgment in the previous proceedings. It is therefore a question of fact whether the parties and their privies, the fact in issue and the subject matter of the claim are the same in both the previous and the present case. The question before this court is; when does a res become judicata? There is no gainsaying the fact that the party raising the plea must show that the parties, the issues and the subject matter of the current case are the same as in the previous case adjudicated upon by a court of competent jurisdiction before which the proceedings terminated to finality. See the cases of ALABI v. LADEJI (1986) 5 NWLR (PT. 42) 432, BAMISHEBI V. FALEYE (1987) 2 NWLR (PT.54) 51.
Learned counsel for the appellants has argued that the documents so exhibited by the Respondents are not enough to grant the plea of res judicata as parole evidence would have shown whether the land claimed by the appellants called “ASUKWU” is the same as that claimed by the Respondents called “IYIOBA” and “OKPUKPUENYI” I shall first of all begin with the findings in Suit No. 149/53. In para. 8 of the Statement of Defence, at para. 40 of the record, it is stated that “the defendant’s ownership of the land in dispute made up of Iyioba and Okpukpuenyi was settled as far back as 1954 by the judgment of Alayi District Court in Civil case No. 149/53.”
The Judgment of that court was upheld both by the Bende County court and subsequently by the Umuahia High Court in Suit No. HU/27/65. It suffices to state here that what runs through all the courts aforementioned is the issue of land. The question here is: is it the same piece or pieces of land that has been adjudged by the hierarchy of courts? The Appellants claim they are different pieces of land while the Respondents say it is the same land only called by different names by both parties. In their statement of claim at page 24 of the record para. 5 the Plaintiffs/appellants stated that the plaintiffs are the owners and in possession of the entire Asukwu land including the portion in dispute. The Defendants on the other hand in their statement of defence clearly state that the defendants ownership of the land in dispute made up of Iyioba and Okpukpuenyi was settled as far back as January, 1954 in Suit No. 149/53, and the following documents were pleaded:
(a) Survey Plans Nos. JJ/19/61 and JJ/12/60 used in Alayi Native Court Suit No. 149/53.
(b) The Record of Proceedings from the Alayi Native court to the County Court, Bende.
(c) Judgment of Umuahia High Court in HU/27/65.
(d) Summons to parties to settle Record in HU/27/65 – Appeal abandoned by the Plaintiffs herein-
It is however worthy of note that at the Alayi Native court the claim of the Plaintiffs was for the land which they called “ASUKWU” and which the Defendants called “IYIOBA” and “OKPUKPUENYI”, same as in this appeal. Also in the present appeal, the Plaintiffs/Appellants are the people of Umuokpo while the Defendants/Respondents are the people of Elugwu Amankalu thus making the parties the same as in the previous suit.
When it is said that res judicata applies in law, it should be borne in mind that a party is estopped from relitigating the matter at hand by the fact that the same matter had already been the subject of a final judicial pronouncement between the two parties. See the case of CPC V. NYAKO (2011) 17 NWLR (PT. 1277) 451 AT 459.
From the foregoing one can clearly discern the fact that the issue that bedevils all the courts is the ownership of the land in dispute called “ASUKWU” by the Plaintiffs/Appellants and “IYIOBA” and “OKPUKPUENYI” by the Defendants/Respondents. The identity of the land had now become crucial as the court has a duty to compare the plans produced in order to resolve the identity.
In para. 5 of their statement of Defence at pages 39 – 41 of the records the Defendants/Respondents pleaded that:
“…the Defendants however agree that the following features and boundaries indicated by the Plaintiffs exist on the land namely.”
1. The Land of Umumbe Kindred of Igbere
2. The Ozuitem Road which cuts across the land
3. Oruata land of the Defendants
4. Stream located near the boundary with Umumbe Igbere (Omuofiarara).
5. Nsocha Stream and Track Road leading therefrom.” See the Plaintiffs/Appellants’ Survey Plan EXHIBIT A. the areas marked A, B, C, D, E and F on page 32 of the High Court’s Case file as indicated in appendix A in the index to the record of Appeal.
Also the survey plan Exhibit B has the following features:
A- Ozuitem Road
B- Land of Umumbe people, Igbere
C- Oruanta land
D- Dimuofiarara stream
E- Nsocha stream
F- Earth Mound on the boundary with land of Agbama Okereke on Page 45 of the High Court’s Case File as medicated in Appendix A in the index to the record of Appeal.
Further in exhibit D showing the Okpukpuenyi land, the following features are shown:
1. Ozuitem road marked ‘A’, with Okpukpuenyi land on the left.
2. Stream (Nsocha) marked ‘E’
3. Oruanta land marked ‘F’
4. Earth Mound on the boundary with and of Agbama Okereke, also marked ‘F’ (also called ‘Nkpukpu Oke’ at exactly the same location on the Plaintiffs/Appellants’ Survey Plan marked Exhibit A).
And in Exhibit D1 the identical features appear:
1. The road to Ozuitem with Iyioba land on the right, marked ‘A’
2. The land of Umumbe Igbere people marked ‘B’
3. The Oruonta land, marked ‘C’
4. Omuofiarara stream, marked ‘D’
A closer look at the survey plans Exhibits D and D1 and the present survey plans Exhibits A and B show clearly that the lands are the same having these identical features common to them. It is also pertinent to refer to the conclusion of the Bende County Court where the court held thus:
“The Defendants call their own land ‘Asukwo’ but the Plaintiff called his ‘Iyioba’ and ‘Okpukpuenyi’. It was during the dispute of Asukwu lands the Defendants trespassed into the Plaintiffs land at Iyioba. The Plaintiff says that he has boundary with the Umumbe Igbere, the Defendants also said that they bound with the same Umumbe but the said Umumbe people appeared for the Plaintiff. In the Plan produced by the Plaintiff, the lands surrounding the Iyioba belongs to the Plaintiffs’ people where they bound with Umumbe Igbere. Durung the Lower court’s inspection, it was noted that it was also included their previous case.”
I share the view of learned counsel for the Respondents that the court found that the land which the Plaintiffs called (Asukwu) sharing a boundary with Umumbe of Igbere was in fact “IYIOBA” and ‘OKPUKPUENYI’. In the case of EKPOKE V. USILO (1978) 6 – 7 SC 187 the Supreme Court stated thus:
“So long as a whole parcel of land is described by name in a judgment, every inch of the land named is bound by the judgment.”
From the facts so far adduced, it is therefore obvious that the Plaintiffs/Respondents’ in bringing this action have called the same land “Asukwu” as they had done years ago and lost.
The learned trial Judge rightly considered the pleadings of parties before him as well as the evidence in the judgments relied upon, also comparing the survey plans used in the previous suit with those of the present suit and rightly concluded that the parties, issues, and subject matter of the suits are the same and that judgment is final and subsisting as found at pages 287 – 296 of the records stating as follows:
“…By the Survey Plan of the 1953 Suit No. 149/53, the Applicants Survey Plan Exhibit B, as well as Plaintiffs Survey Plan Exhibit A. all three Survey Plans relate to the same piece or parcel of land. All the features shown on the Survey Plans are just the same, even though details may vary; but essentially all the features are basically the same…”
The learned trial Judge in this case made findings of fact based on due consideration of the evidence before the court relating to the land in dispute. At the risk of having to repeat myself, I shall refer specifically to P. 293 of the record where the Judge made the following findings:
“…There is evidence before the Court that the Defendants now Plaintiff/Respondent continued to appeal even up to the Supreme Court but abandoned the said appeal. It is therefore clear that it is the same land which the Defendant/Plaintiff/Respondents call Asukwu, that the Plaintiff/Defendant/Applicant calls Iyioba and Okpukpuenyi. This finding is supported, by the Survey Plan of the 1953 Suit No. 149/53, the
Applicants Survey Plan Exhibit B, as well as Plaintiffs/Respondents Survey Plan Exhibit A. All three Survey Plans relate to the same piece or parcel of land. All the features shown on the Survey Plans are just the same, even though details may vary; but essentially all the features are basically the same.”
I can safely conclude here that the findings of fact made by the trial court which are unchallenged remain valid and subsisting. Both parties have relied on survey plans which the learned trial Judge considered in order to determine the identity of the land in dispute and after due consideration of the features and boundaries as set out in both plans and comparing them, rightly came to the conclusion that the features in the claimants “ASUKWU” and the Defendants/Respondents “IYIOBA” and “OKPUKPUENYI” are basically the same.
There was therefore no need for the trial Judge to admit oral evidence as this would be tantamount to the court calling a witness to give evidence as to the contents of a document before the court contrary to it to say however, that the documentary evidence of the survey plans tendered before the court has proved the identity of the land in dispute and thus can safely ground the plea of Estoppel per rem judicatam without parole evidence. In the light of all of the above, issue one is resolved in favour of the Respondents.
ISSUE TWO is whether the Appellants suffered a miscarriage of justice by the fact that the lower court failed to consider the address of Appellants counsel. Both parties have categorically stated that the learned trial Judge in his judgment inadvertently omitted to apply his mind to the written address of Appellant’s counsel.
In his judgment on page 281 of the record, his conclusion albeit inadvertently was that while learned counsel for the Applicants O.A. OBIANWU (SAN) filed a written address dated the 3rd day of March 2006 and filed on the 7th day of March 2006, the learned Respondent’s counsel Y.O.C. NWOKE indicated in para. 15 of his counter affidavit filed on 15/1/06 that he would rely on the address filed in respect of the initial motion on Notice by the Applicants. The trial Judge then proceeded to analyse both addresses but failed to expressly comment on the final address of Respondent’s counsel which was essentially the same as the earlier one which the same Appellants had indicated that they would rely.
I shall also place reliance on the case GARBA V. OMOKHODION (2011) 6 SCNJ 347 PARA. 2 (supra) in emphasizing that not every mistake made by a court will lead to a reversal of a Decision, unless it is grave and fundamental. Learned counsel’s written addresses merely contain the arguments and opinion of counsel and not the evidence or pleadings of parties which are paramount in a case. Again in order to determine whether or not the irregularity is fundamental and occasioned a miscarriage of justice, it becomes therefore necessary to consider the contents of the two addresses filed by learned counsel to the Plaintiff/Respondents and also to determine if there was any substantial difference between the submissions therein. A comparative and critical analysis of the address of learned counsel to the Claimants/Appellants which the trial court failed to refer to revealed that paragraphs 1 (c) and 2 (i) of the first address is similar to para. 2 (a – g) of the second address. Again paras. 2 (ii – v) 2 (h – i) of the second address are similar. Also para. 4 of the 1s address is similar to para. 2 (k) of the second address while para. 6 of the 1st address is similar to para. 2 (s) of the 2nd address. See para. 65 – 69 and 270- 278 of the record.
The Appellants have hitherto not shown how the consideration of the said address affected the ultimate decision of the court. I shall hereby place reliance on the Supreme Court case of A.I.E. V. ADEBAYO (2005) 12 SCNJ 106 AT 142 which held as follows:
“…As far as the facts of any given case are concerned, the Address of counsel is supposed to deal only with the evidence before the court. But the mere mention of matter in the course of such Address is never a substitute for the evidence that has not been led. Nor can it supplant the inadequacy of the evidence given at trial.”
I shall still state here even at the risk of repeating myself, that address or argument of counsel is not a substitute for pleadings and evidence in support of facts alleged. The case of the parties is adequately presented in their pleadings and evidence adduced before the court and to that effect, the learned trial judge’s omission does not occasion any miscarriage of justice. It may be termed a mere irregularity which does not vitiate the proceedings. It is my humble opinion therefore that the Plaintiffs/Applicants where given fair hearing and no miscarriage of justice was occasioned as learned counsel’s arguments were fully taken into consideration by the trial Judge.
It is well settled law that not every slip a Judge will result in an appeal being allowed except the slip is substantial. Not so in this case. See the following cases:
1. OSENI V. DAWODU (1994) 41 SCNJ PT. 2 P. 197.
2. OTITIOJU V. STATE (1994) 4 SCNJ PT. 2 P. 224.
3. ELEOKE V. NWAGBO (1988) 1 NWLR PT.72.
4. NWOSU V. IMO STATE ENVIRONMENT AUTHORITY (1990) 2 NWLR PT. 135 P. 688
5. ONWUKA V. OMOIGUI (1992) 3 NWLR PT.230 P.393.
It is also a well entrenched principle of law that an Appeal Court that did not see or hear witnesses, or observe their demeanours in the witness box should be reluctant to interfere with a Decision of the trial court founded on facts, unless such a Decision was perverse, unreasonable or not Supported by evidence, or, then, not the result of a genuine exercise of judicial discretion: See also the cases of KODILINYE V. ODU (1935) 2 WACA 336, EBBA V. OGODO (1984) 1 SCNLR 372.
In summary, it is my humble view that there was sufficient material before the court to determine the issue of Estoppel per rem judicatam without parole evidence as the documentary evidence placed before the court suffices. Again the Appellants were not denied fair hearing since the written address allegedly erroneously discountenanced was substantially the same in content as the written address which the learned trial Judge duly considered in reaching his decision. In the result, issue No. 2, is also resolved in favour of the Respondents.
On the totality and with both issues resolved against the Appellant, this appeal is considered lacking in merit and is hereby dismissed. The judgment of the High Court of Abia State, sitting at Igbere and delivered by Hon. Justice S.F. ANALABA on the 30th day of May 2006 is hereby upheld.
I shall make no order as to costs.
UWANI MUSA ABBA AJI, J.C.A. PRESIDING: I have read before now the lead judgment of my learned brother P. M. Ekpe, JCA just delivered and I entirely agree that the appeal is devoid of any merit and I also dismiss the appeal.
I just wish to add for emphasis only on the issue of Estoppel Per Rem Judicatem. The Respondents by a motion on notice filed on the 6th February, 2006 prayed the lower Court to dismiss the suit filed by the Appellants, the action being caught by the doctrine of Estoppel Per Rem Judicatem and annexed wherein several documents to that effect. The documents were very well stated in the lead judgment.
The sum total is that the ownership of the land in dispute made up of Iyioba and Okpukpuenyi was settled as far back as January, 1954 by the judgment of the Alayi District Court in Civil case No. 149/53, confirmed by the Bende County Court on 4th July, 1961 and ultimately affirmed by the judgment of the Umuahia High Court in HU/27/65. Though the Appellants appealed to the Supreme Court, but later abandoned the appeal. The Lower Court accepted the Respondent’s position and dismissed the Appellants suit.
It is trite that for Estoppel per Rem Judicatem to be pleaded and relied upon the following conditions must be satisfied; (i) That the parties or their privies in the previous and present suits are the same. (b) That the claim and the issue in both cases are the same, (c) That the subject matter of the litigation in the previous and present suits is identical, (d) that the issues in both suits were finally settled in the previous.
See Intercity Bank Plc v. Fasisal Travel Agency Ltd. (2006) 4 NWLR (pt. 971) 504 at 525; Nwaneri v. Oriawu (1959) SCNLR 316; Oke v. Atoloye (no. 2) (1986) 1 NWLR (pt 15) 241. See also section 54 of the Evidence Act.
The rule simply requires that where a final decision is given by a Court of competent jurisdiction, the parties thereto cannot be heard to contradict that decision in any subsequent litigation between them respecting the said subject matter. The rule effectively precludes a party to an action, his agents and privies from disputing against the other party in any subsequent suit matters which had been adjudicated upon previously by a Court of competent jurisdiction between him and his adversary involving the same issues. See Adone v. Ikebudu (2001) 14 NWLR (PT 733) 285: Ukaegbu v. Ugoji (1991) 6 NWLR (PT 196) 127.
In giving judgment for the Defendants/Applicants, the learned trial Judge held as follows:
“Based on the foregoing, it is my finding that the Rule of Res Judicatem does apply and the effect is to bar the Plaintiffs from relitigating over this suit. Alternatively, this Court lacks jurisdiction to entertain this matter in that the there is a valid and subsisting judgment of Court of competent jurisdiction in favour of the Defendant/Applicants with respect to the subject matter of the instant suit between parties. Consequently, suit is here by dismissed.”
In view of the overwhelming documentary evidence before the trial Court which it relied upon in reaching its decision that the Appellants “Usukwu” and the Respondents “Iyioba and Okpukpuenyi” are basically one and the same thing held that the suit is caught by the doctrine of Estoppel Per Rem Judicatem, the judgment is unassailable. It cannot be faulted. There is therefore no need in the circumstances to call for parole evidence to substantiate the contents or otherwise of a documentary evidence. The law does not require oral evidence of contents of a document.
It is for this reason and the more detailed reasons in the lead judgment of my learned brother that I also dismiss the appeal as it is completely devoid of any merit.
I also endorse the consequential order as to costs.
JOHN INYANG OKORO, J.C.A.: I had the privilege of reading in draft the lead judgment prepared and just delivered by my learned brother, Philomena Ekpe, JCA. I am in total agreement with the reasoning and conclusion arrived thereat which I adopt as mine. It is trite that for a party to successfully invoke res judicata or cause of action estoppel, namely estoppel per rem judicatam, it must be shown that the parties, the cause of action and the res (subject matter) are the same in the earlier as well as the case before the court in which the plea is raised. See NWOPARA OGBOGU & ORS v. NWONUMA NDIRIBE & ORS; (1992) 6 SCNJ 301.
Where res judicata is pleaded by way of estoppel to an entire cause of action, it amounts to an allegation that the whole legal rights and obligations of the parties are concluded by the earlier judgment, which may have involved the determination of questions of law as well as finding of facts. See EMMANUEL OKPALA IGWEGO v. FIDELIS OJUKWU & ANOR (1992) 7 SCNJ 284.
In the instant case, the parties, res and cause of action in the case before Alayi Native Court in Suit No 149/53 and before Umuahia High Court in Suit No. HU/27/65 are the same as those before the trial court which has given birth to this appeal. The issues already settled before the two lower courts, as a matter of public policy, should not be allowed to be relitigated. The identity of the land and the names called have been settled at the Alayi Native court which was affirmed by the Bende County Court on 4th July, 1961 and ultimately affirmed by the High Court Umuahia in suit No HU/27/65. It is my view that the plea of estoppel per rem judicatam avails the Respondents in this case.
Based on the above and the fuller reasons in the lead judgment, I agree that this appeal lacks merit. It is also dismissed by me. I abide by all consequential orders in the lead judgment, that relating to costs inclusive.
Appearances
O.A. Obianwu, Esq, with U.K. Anyanwu, EsqFor Appellant
AND
Nnamdi D. Uchendu, Esq.For Respondent
