EVANGELIST JACOB ONAKOVWE KPEKU & ORS. v. CHIEF DOUFA SIBEKENEKUMU & ORS.
(2013)LCN/6092(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 22nd day of May, 2013
CA/B/29/2011
RATIO
WORDS AND MEANING: “JUDGMENT”
“The 6th Edition of Black’s Law Dictionary defines a judgment as follows: The official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or Suit therein litigated and submitted to its determination. The final decision of the court resolving the dispute and determining the rights and obligations of the parties. The Law’s last word in a judicial controversy, it being the final determination by a court of the rights of the parties upon matters submitted to it in an action or proceedings.” Per OGUNWUMIJU, J.C.A.
EVIDENCE: ADMISSIBILITY OF DOCUMENTARY EVIDENCE: WHETHER DOCUMENTS MADE DURING THE PENDENCY OF LITIGATION IS ADMISSIBLE
“It is only documents made by parties and/or interested parties during the pendency of litigation that are not admissible. see S.83(3) Evidence Act 2011; S.E.A.P.S. Ltd. v. Ogunnaike (2008) 14 NWLR Pt.1106 Pg.1 at Pg. 5; Susano Pharm., Co. Ltd. v. Sol Pham. Ltd. (2000) FWLR Pt. 10 Pg.1595 at Pg.1598.” Per OGUNWUMIJU, J.C.A.
PLEADINGS: ONLY FACTS ARE PLEADED
“It is trite that only facts are pleaded and not the evidence to prove the facts. See Nwadioro v. Shell (1990) 5 NWLR pt. 150 pg.332-4; Onamade v. ACB (1997) 1 NWLR Pt. 480 Pg.123.” Per OGUNWUMIJU, J.C.A.
RES JUDICATA: THE NECESSARY INGREDIENTS TO PROVE THE PLEA
“The learned trial judge rightly held as follows on pg. 314-315 of the record. “The law is that for a plea of res judicata to succeed, the parties, the subject matter and the issues must be shown to be the same in the previous case as those in the action in which the plea is raised. This in effect implies that there must have been a judicial determination reached one way or the other, of a cause between the parties, upon which the real interest in the subject matter has been settled. A judicial determination or judgment relied upon by a party in support of the plea of res judicata must have made an order or granted a relief capable of enforcing in terms of its nature and substance. It must not fail to confer some benefits or impose some burden on one party or the other finally. It must therefore not be vague, ambiguous or uncertain. See the case of Nwaneri v. Oriuwa (1959) SCNLR 316; Alao v. Akano (1988) 1 NWLR Pt.71 Pg. 431. The finality of the judicial division relied on is basic and crucial in a plea of estoppel per re judicatam. It must settle finally, the issues of title or possession. A judgment or order that can support a plea of res judicata must be that in which an answer in the affirmative with respect to the rights of the parties in the subject matter and cause of action can be found. See the case of Udo v. Obot (1989) 1 NWLR Pt. 95 at 71-72; Udeee v. Chidebe (1990) 1 NWLR Pt. I25 at 141-151; Nkanu & Ors. V. Onum & Ors. (1977) 5 SC 11; Okposin v. Assam (2005) 131 LRCN 2561. It is clear from the decision reached in the aforementioned authorities that the order striking out the suit initiated by plaintiffs against defendants in W/7/65, does not and cannot operate as estoppel against the plaintiffs, from re-litigating the present suit.” Per OGUNWUMIJU, J.C.A.
LAND LAW: SURVEY PLAN: WHETHER A SURVEY PLAN IS REQUIRED WHEN THE IDENTITY OF THE LAND IS KNOW TO THE PARTIES
“… the law is that where both parties know the land in dispute, a survey or litigation plan is not necessary. See Sadiku Osho v. Michael Ape (1998) 6 SCNJ 139 at 142.” Per OGUNWUMIJU, J.C.A.
LAND LAW: TRADITIONAL EVIDENCE: EFFECT OF A SLIGHT SHIFT IN TRADITIONAL EVIDENCE
“… a slight shift in traditional history is permissible in law since traditional history is not static there being no written records and parties depend on oral accounts of what transpired centuries ago.” Per OGUNWUMIJU, J.C.A.
JUSTICE
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
1. EVANGELIST JACOB ONAKOVWE KPEKU
2. JACOB KORORO VUAGHOGHO
3. DANIEL GOMUGORO DUMUJE
(for themselves and representing the People of OGBE SOBO ALADJA in UDU LOCAL GOVERNMENT AREA OF DELTA STATE)Appellant(s)
AND
1. CHIEF DOUFA SIBEKENEKUMU
2. OFROKPAN ISEGBELE
(for themselves and representing the People of ISABA COMMUNITY in WARRI SOUTH-WEST LOCAL GOVERNMENT AREA, DELTA STATE
3. ATUWATSE II, OLU OF WARRI Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Delta State High Court delivered by Hon. Justice P. O. Onajite Kuejubola (Mrs) on 27th July 2010. The facts that led to this appeal are as follows:
The Respondents herein, who were Plaintiffs at the trial court sued the Appellants herein for a declaration of title to land and an order of perpetual injunction against the Appellants herein.
The Respondents instituted the suit in a representative capacity for themselves and representing the people of Isaba Community in Warri South-West Local Government Area of Delta State. The Appellants also sued the Respondents as counter-claimants at the trial court in a representative capacity representing the people of Ogbe-Sobo (Aladja) in Udu Local Government Area of Delta State. The Respondents instituted the suit at the lower court in 1970. The Appellants filed a counter-claim against the Respondents in 2006.
The claim of the Respondents against the Appellants at the lower court is set out as follows:
(1) A DECLARATION that in accordance with native law and custom of the Plaintiffs, the Plaintiffs are the owners of the land known as ISABA BOU in Isaba of Warri South-West Local Government Area of Delta State. The said parcel of land is within the jurisdiction of this Honourable Court and particularly shown and delineated on the amended plan No. ISO/BD/1765/90 filed with the 8th amended Statement of Claim thereon verged in pink.
(2) A perpetual injunction restraining the Defendants, their agents, servants/privies and all other persons purporting to claim through them from interfering with the plaintiffs rights and interests in and over the said piece and/or parcel of land in particular from entering the said land, granting leases or other dispositions of the same to third persons.
The Appellants’ counter-claim was as follows:
(1) A DECLARATION that the Defendants are entitled to a Right of Occupancy in respect of the piece or parcel of land verged yellow and measuring 1081.434 hectares in litigation survey plan No.DT/TK 4,800A with the jurisdiction of this Honourable Court.
(2) A perpetual injunction restraining the plaintiffs their servants, agents, privies, assigns and whatsoever purporting to claim through them or on their behalf from interfering with and or entering the Defendants land measuring 1081.434 hectares in litigation survey plan No.DT/TK 4,800A, prepared by Surveyor T. K. Kpeji Registered Surveyor.
At the end of the trial, the trial court granted the reliefs of the 1st and 2nd Plaintiffs and dismissed the counter-claim of the Defendants. Dissatisfied with the judgment of the trial court the Defendants/Appellants hereinafter referred to as Appellants appealed to this court by filing 10 grounds of appeal.
From the said grounds, the Appellants distilled the following issues for determination as set out below.
1. WAS THE LEARNED TRIAL JUDGE RIGHT IN NOT CONSIDERING THE FULL WEIGHT AND EFFECT OF THE PREVIOUS JUDGMENTS OF 1934 AND 1965 BETWEEN THE SAME PARTIES OVER THE SAME SUBJECT-MATTER TO DETERMINE THE MERITS OF THIS CASE AS AGAINST OTHER ISSUES RELIED ON BY THE COURT; GROUNDS 1, 2, 3, 4 AND 5 OF THE GROUNDS OF APPEAL.
2. DID THE LEARNED TRIAL JUDGE PROPERLY EVALUATE THE EVIDENCE GIVEN BY THE PARTIES ON THE IMAGINARY SCALE OF JUSTICE BEFORE DECLARING 1ST AND 2ND PLAINTIFFS AS OWNERS OF THE DISPUTED LAND WHICH WAS BASED PRINCIPALLY ON ALLEGED ACTS OF POSSESSION BY 1ST AND 2ND PLAINTIFF AS WELL AS RELIANCE ON THE GAZETTE AND MAP OF DELTA STATE; GROUNDS 6, 7, 8 AND 10.
3. HAVING REGARD TO THE WAY AND MANNER THE CASE WAS CONDUCTED WITH CONFLICTING TRADITIONAL ROOT OF TITLE OF THE 1ST AND 2ND PLAINTIFFS ON ONE HAND DIFFERENT FROM THE CASE PUT FORWARD ON BEHALF OF THE 3RD PLAINTIFF BY THE SAME COUNSEL WHETHER THE CASE OF PLAINTIFFS AS A WHOLE OUGHT NOT TO HAVE BEEN DISMISSED IN TOTAL FOR BEING INCONSISTENT, CONTRADICTORY AND IMPOSSIBLE TO BE GRANTED BY A COURT OF LAW AS CONSTITUTED.
On their part, the Respondents identified the following issues.
(1) That the trial judge did not consider the full weight and effect of the previous judgments of 1935 and 1965 between the parties.
(2) That the trial judge did not properly evaluate the evidence adduced by the parties on the imaginary scale of justice before declaring that plaintiffs are the owners of the disputed land which was based on acts of possession by the plaintiffs and the reliance on gazette and map of Delta state.
(3) That the plaintiffs had conflicting traditional root of title as such the trial court would have dismissed plaintiffs’ claim.
I will adopt the issues as distilled by learned Senior Counsel for the Appellant, which though verbose encompasses all the complaints contained in the grounds of appeal.
ISSUE ONE
In the Appellants’ brief settled by Chief Albert Akpomudge, SAN, learned senior counsel argued that from the pleadings of the parties, they all relied on the two previous judgments during the trial. Senior counsel stated that with regard to paragraphs 17 and 18 of the 8th Amended Statement of Claim, the Defendants claimed that the land in dispute is the bona fide property of the defendants and that they had been and continued to be in possession as owners from time immemorial but added that when the 1st and 2nd plaintiffs and their people for the first time tried to lay a feeble claim to the area called Erhounishan, the defendants were compelled to institute the said action in suit No. B/10/1934 in respect of the area verged PINK only in the survey plan tendered in the said proceedings, as Exhibit “A” as the 1st and 2nd plaintiffs were the customary tenants of the defendants. The Appellants as Defendants claimed they took the said action against the 1st and 2nd plaintiffs as the acts and conducts of the 1st and 2nd plaintiffs amounted to a challenge of the defendants’ title to the said area which is also shown and verged PINK in the survey plan filed with the 8th Amended Statement of Defence. The Appellants had at the trial relied on the proceeding in Suit B/10/1934 which was tendered as Exhibit A. Senior counsel complained that well over (31) thirty-one years after the decision in Suit No. B/10/1934 between the 1st set of Respondents and Appellants, the 1st set of Respondents instituted another action in Suit No.W/7/65 between Wareseimere Ghighi & 3 Ors for themselves and on behalf of Isaba village in Oybeijam against Chief Egegede for himself and on behalf of the people of Ogbe Sobo. In the said suit the 1st and 2nd set of Respondents relying on Suit No.B/10/34 claimed the same portion of land being claimed in this suit as their property and a plan was filed to support their assertion.
However during the trial in 1965 before Hon. Justice Ovie-whiskey, 1st set of Plaintiff having open their case with the 1st Plaintiff in the suit giving evidence who had testified mid way, then conceded that the area of land put in dispute in that case which is the same as the present one is far bigger than the area of land decided upon in the suit No. B/10/34. Consequently, the Plaintiffs in that case and the 1st set of Plaintiffs/Respondents in the present appeal, applied to withdraw suit No.W/7/05.
The learned trial judge then struck out the suit. Senior Counsel argued that the Respondents could not relitigate the suit No.W/7/65 by instituting the action that led to this appeal. Learned senior counsel is of the view which he urged on this court that the Plaintiffs/Respondents cannot lay claim to land outside that which was disputed in 1934 since they had attempted to do so in 1965 and failed. They cannot be allowed to do so by the present action and the judgment of the trial court since the two previous judgments defined with precision what was owned by the Plaintiffs/Respondents. Learned senior counsel argued that the learned trial judge having failed to give effect to the previous judgments in Exhibit E1 and B respectively, this court in exercise of its powers under S.15 of the Court of Appeal Act can put itself into the position of the trial court and determine the issue correctly. He cited Lagga v. Sarhuna (2009) All FWLR Pt.455 Pg.1617 at 1623-1624 and Ajayi v. NURTM (2009) All FWLR pt.477 pg.175; Tolani v. Kwara State JSC (2009) All FWLR pt.481 pg.880; FAAN v. Green Store Ltd. (2009) All FWLR Pt.500, Pg.742; Christeleb Plc v. Majekodunmi (2009) All FWLR Pt.472 Pg.1042; Nduwe v. State (2009) All FWLR 464 pg. Yaro v. Wada (2009) All FWLR Pt. 472 Pg. 1084; Akanbi v. Oyewole (2009) All FWLR pt. 456 pg. 1922.
Counsel argued that the Plaintiffs/Respondents never attempted to prove the extent of the land they won in the 1934 case and now turned around in this case to claim ownership of land based on their imagination. He argued that while the Defendants/Appellants proved the areas litigated upon in the previous suits in their survey plan Exhibit F, the Plaintiffs/Respondents never proved the previous area litigated upon.
The argument of learned Appellants’ senior counsel as I understand it is that estoppel per rem judicata is applicable to prevent the Plaintiffs/Respondents from relitigating the portion of land adjudicated upon in 1965 having agreed that they do not own said area of land. Senior counsel also argued that the Plaintiffs/Respondents did not prove the identity of the land in dispute as each party was alleging the opposite of the other. He insisted that the 1934 plan ought to have been super imposed on the 1965 plan and on the 1970 plan. He opined that where the identity of what was granted in the 1934, 1965 and the present case are in dispute, filing of a plan is not just imperative but such a plan must marry the previous plans used in the previous suits to the present plan to identify exactly what was adjudged in the previous suits.
Counsel further argued that the trial judge never made any pronouncement on this vital point and urged this court so to do by exercising its powers under S.15 of the Court of Appeal Act . Counsel cited Gboko v. State (2007) 17 NWLR Pt.1063 Pg. 272; A.G. Federation v. Abubakar (2007) 10 NWLR pt.1046 pg.462; Gbadamosi v. Dairo (2007) 3 NWLR Pt.102 Pg.282; Kazeem v. Mosaku (2007) 17 NWLR Pt.1064 pg.523 ratio 4.
In reply to the above arguments, learned respondents’ counsel in the brief settled by T. C. Williams Esq., on the point made by the learned appellants’ counsel that the trial judge did not rightly consider the full weight and effect of the previous judgments of 1935 and 1965 between the parties, argued that the proceedings in Suit No. B/10/34 tendered at the trial court as Exhibit E1, the present appellants who were plaintiffs in that suit lost the case against the present respondents who were respondents in that case. He submitted that the learned Appellants’ counsel in his final address before the trial court in this case had conceded that having lost the 1935 case and having not appealed against the said judgment, he cannot raise it against the Respondents. He argued that the land in dispute in that case is well known to the parties even though the respondents called it Pere-Ama while the appellants called it Eruishan. Counsel submitted that from the pleadings of both parties, it is clear that parties know the area litigated upon in 1934 as both parties indicated the said portion in dispute in suit No.B/10/34 in their respective litigation plans in this instant suit, and as such both parties never made it an issue at the trial court and the appellants cannot turn around to make it a fresh issue here without leave of court. He cited Musa v. Christlieb (2000) FWLR Pt. 19 Pg. 460 at 461. He argued that what learned counsel for the appellants is agitating for is for the trial judge to interpret the judgment of 1935 which was not the issue before the learned trial judge.
Learned Respondents’ counsel set out the proper sequence of events as follows on Pg. 9 of the respondents’ brief. I find nothing in the pleadings, exhibits and evidence to contradict this. It is as follows:
“In 1965, the respondents herein instituted suit No.W/7/65 against the appellants herein for a declaration of title over the portion of land lost in litigation by the appellants in suit No.B/10/34, since there was no counter-claim by the respondents in suit No.B/10/34.
In the litigation plan in suit No.W/7/65 the respondents herein put in issue all their Isaba Clan land and not just the portion of litigation in suit No.B/10/34 while the pleadings was just on the disputed land of 1934 suit.
At the trial, this was discovered and the trial judge in suit No.W/7/65 advised that since the portion of land contained in the litigation plan was larger than that in the writ of summons and statement of claim, the suit be withdrawn to regularize.
The suit was withdrawn and accordingly struck out. The respondents herein, in their wisdom resolved to institute this present suit – suit No.W/89/70 against the appellants, wherein they put all, inclusive of the portion of land in dispute in suit No.B/10/34 in issue for a declaration of title; and not just the particular portion in dispute in suit No.B/10/34. This can be seen from the survey/litigation plan filed in this instant suit.”
Counsel submitted that the parties’ evidence are ad idem on the identity of land in dispute both in the 1934 case and in the present case. The fact that different names are ascribed to it goes to no issue. He cited Ojo v. Azama (2001) FWLR Pt.38 Pg.1329 at 1334 ratio 8. He also cited Ogunsina v. Matanmi (2001) FWLR Pt.48 Pg.1329 at 1331.
The case being made out here by the Respondents is that the declaration of title made in favour of the Respondents in the suit which led to this appeal is inclusive of the land litigated upon in Suit No.B/10/34 which the Appellants lost in 1935. He insisted that it is wrong and misleading for the appellants counsel to submit that any acts of possession by the Respondents outside the portion litigated in suit B/10/34 will amount to acts of trespass. This is because the Respondents pleaded, referred to and relied on Exhibit E1 for the purpose of showing to the trial court that a portion of the land in this instant case has been litigated upon before, wherein the Appellants being plaintiffs in Exhibit E1 lost but the Respondents, being defendants in Exhibit E1 had no counter-claim as such the court in Exhibit E1 did not make a declaration of title in favour of the Respondents. Counsel also argued that the doctrine of estoppel operates against the Appellants in re the portion of land on which decision was given in Exhibit E1. He cited Ito v. Ekpe (2000) FWLR pt.6 Pg. 927 at 930.
I must comment that this is a land matter which lasted thirty years at the trial court. This is an old land matter in which we must take into consideration that the features on the land must have changed. The Appellants’ contention at Pg.10 of the Appellants’ brief is that the trial court failed to determine the following questions which it would have resolved in favour of the Appellants if it had done so. They are set out below.
1. Extent of land decided in favour of 1st and 2nd plaintiffs in the 1934 case.
2. Whether what was shown in 1st and 2nd plaintiffs’ litigation plan in the 1965 case was the land they won in the 1934 case and whether it is exactly the same land they are claiming ownership of in this suit after they concede that it was bigger than what they won in the 1934.
3. ALTERNATIVE TO 2 ABOVE whether the land shown in plaintiffs’ plan in the 1965 case as they land as indicated on their survey plan in the 1965 case and repeated in this suit is what was adjudged in their favour in 1934 case.
I do not quite appreciate the vehement argument of learned Appellants’ counsel regarding the identity of the land disputed upon in the 1934 case. In the 1934 case the Respondents called it Pere-Ama while the Appellant called it Eruishan. It seems that the Appellants’ counsel is claiming that for the Respondents to have succeeded at the trial court, there must have been a clear demarcation by survey plan, the area of land in dispute in both the 1934 and 1965 cases.
I have considered all the exhibits in this case and seen that the Respondents as Plaintiffs filed a survey/litigation plan which indicated the portion of land litigated in 1934. Also the 1st Appellant in his evidence on pg.237 of the record stated in identifying all the land in dispute as follows:
‘The Plaintiffs are claiming Ayama Community, Ubame Cooperated to Paniel which plaintiffs are claiming.”
In any event, the Appellants were the Plaintiffs in suit No.B/10/34 proceedings of which was tendered as Exhibit E1. They cannot make an issue now on appeal out of the identity of the land in dispute in 1934. Also, if the complaint is that the identity of the whole land in dispute in this case is uncertain, what exactly then did they file a counter-claim to get? Moreover, in the respective litigation plans filed by both parties, the two parties indicated the portion disputed in 1934. Both parties knew what was litigated in 1934. The fact that they called in different names is of no moment. See Makanjuola v. Balogun (1989) NWLR Pt..108 pg. 192.
At Pg. 316 of the record, the trial court held in my view rightly as follows:
“A plaintiff seeking a declaration of title to land has the primary duty or burden to prove clearly and unequivocally the precise area to which his claim relates, however, the burden will not arise where the identity of the land in dispute does not arise from the pleadings. That is to say where the defendants by their pleadings admitted of the said land. In such a circumstance, the identity of the disputed land is not in question in issue and does not require proof, just as in the present case before me, both plaintiffs claim and the defendants’ counter-claim. Both parties by their pleadings and evidence in court appear very well to know the disputed land for which they both refer to it, as Ayama and Paemi as part of the land in dispute.”
The court also held at Pg. 40 of the judgment as follows:
“That parties in this case were not at difficulty in identifying the land in dispute, could be seen from their common name in referring to the land as Ayama and Paemi.
The law is settled that where there is no difficulty in identifying the land, a declaration may be made without it been based on a plan.
The argument canvassed therefore by SAN Akpomudje that plaintiffs did not superimposed the plan of the previous suit no the present one, as they did, does not pose any difficulty to the case at hand.”
The pleadings of the Respondents as plaintiffs did not seek to rely on Exhibit E1 – judgment in Suit No. B/10/34 as their whole land, the Respondents in this Suit claimed both the land disputed in 1934 and all Isaba land within and around the land disputed in 1934.
From the pleadings and evidence of the parties, and as stated by the trial court, the parties are fully aware of the area of land in dispute, as such, the area is properly proved. In examination-in-chief, 1st defendant/appellant categorically said he knows the land in dispute in 1934 and the one in dispute in this instant case.
The identity of the land in dispute will be an issue only where the Defendants make it so in the Statement of Defence. See Adenle v. Olude (2002) 9-10 SC 124.
As the pleadings or evidence did not show any dispute regarding the identity of the whole land in dispute, the point being made by the Appellants’ counsel that there is no clear indication or demarcation of the land disputed in 1934 and 1965 which portions should have been super imposed on the survey plan is of no moment. This is because as stated earlier, the portion litigated upon in 1934 was clearly shown on the Respondents’ survey plan and pleaded in paragraph 21 of the 10th amended statement of claim. The issue of super imposing one plan on the other is neither here nor there given the fact that the Respondents claimed a much larger area than the area litigated upon in 1934. In any event, the law is that where both parties know the land in dispute, a survey or litigation plan is not necessary. See Sadiku Osho v. Michael Ape (1998) 6 SCNJ 139 at 142. I am of the view that the learned trial judge was right in attaching credibility to the survey plan as tendered by the Respondents. See Akpan v. Otong (1996) 12 SCNJ 213 at 216.
This leg of issue one as argued by Appellants’ counsel in my view is completely misconceived as there was no doubt as regards the identity of the land in dispute in 1934 and the land in dispute in this case.
The second leg of this issue as argued by the Appellants’ counsel is whether what was shown by the Respondents as their land in the 1965 was what was adjudged in their favour in the 1934 case. The argument of learned Appellants, Counsel is that the Respondent had conceded in the 1965 case that they did not own the land in dispute and are herein in this Suit estopped from claiming otherwise. we must remember that the 1965 case is suit No.W/7/65 admitted as exhibit B by the learned trial court. I have read the proceedings in Exhibit B. At Pg. 38-40 of Exhibit B, the court recorded as follows:-
“Court – At this stage the learned counsel for the plaintiffs says that he has realized that the area claimed by the plaintiffs as stated in Exhibit ‘A” is much larger than the area of land litigated on in Suit No.B/10/34 as shown in Exhibit “D” the plan used in that case. He accordingly applies to withdraw the case from court.”
At that stage the case was struck out. There was thus no decision on the merit in the 1965 case. The contention by the learned senior counsel that Exhibit B amounted to a judgment is completely misconceived as Exhibit B speaks for itself. By Exhibit B, the Respondents withdrew their claim in 1965 because during the trial, it became obvious that the land claimed by their litigation plan was much larger than the land indicated in their pleadings. There is no dispute as to what constitutes a judgment to which parties are bound.
The learned trial judge rightly held as follows on pg. 314-315 of the record.
‘The law is that for a plea of res judicata to succeed, the parties, the subject matter and the issues must be shown to be the same in the previous case as those in the action in which the plea is raised. This in effect implies that there must have been a judicial determination reached one way or the other, of a cause between the parties, upon which the real interest in the subject matter has been settled. A judicial determination or judgment relied upon by a party in support of the plea of res judicata must have made an order or granted a relief capable of enforcing in terms of its nature and substance. It must not fail to confer some benefits or impose some burden on one party or the other finally. It must therefore not be vague, ambiguous or uncertain.
See the case of Nwaneri v. Oriuwa (1959) SCNLR 316; Alao v. Akano (1988) 1 NWLR Pt.71 Pg. 431. The finality of the judicial division relied on is basic and crucial in a plea of estoppel per re judicatam. It must settle finally, the issues of title or possession. A judgment or order that can support a plea of res judicata must be that in which an answer in the affirmative with respect to the rights of the parties in the subject matter and cause of action can be found. See the case of Udo v. Obot (1989) 1 NWLR Pt. 95 at 71-72; Udeee v. Chidebe (1990) 1 NWLR Pt. I25 at 141-151; Nkanu & Ors. V. Onum & Ors. (1977) 5 SC 11; Okposin v. Assam (2005) 131 LRCN 2561.
It is clear from the decision reached in the aforementioned authorities that the order striking out the suit initiated by plaintiffs against defendants in W/7/65, does not and cannot operate as estoppel against the plaintiffs, from re-litigating the present suit.”
The 6th Edition of Black’s Law Dictionary defines a judgment as follows:
The official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or Suit therein litigated and submitted to its determination. The final decision of the court resolving the dispute and determining the rights and obligations of the parties. The Law’s last word in a judicial controversy, it being the final determination by a court of the rights of the parties upon matters submitted to it in an action or proceedings.
I am of the humble view that the issue of estoppel cannot be raised in respect of the 1965 case against the respondents as Exhibit B did not show a resolution of the dispute between the parties. See Okukuji v. Akwido (2001) FWLR Pt.39 Pg.1487 at 1490; Amusan v. Obideyi (2005) 6 SCNJ 96 at 97; Ndili v. Akinsumade (2000) FWLR pt.5 pg.750.
In the circumstances, I see no merit in the Appellants’ argument that there was uncertainty in the identity of the land litigated upon in 1935 and that by the 1955 case the Respondents were estopped from relitigating the case they withdrew. The first issue is resolved against the Appellants.
ISSUE TWO
On this issue learned senior counsel for the appellants argued that it is the duty of a trial court to evaluate the evidence led by the parties and ascribe correct probative value to it. The reason is that the trial court having seen and heard the witnesses was in a better position to watch their demeanor in attaching weight to the oral evidence.
He also submitted that where a trial court fails to ascribe probative value to any particular piece of evidence or relied on same without stating the basis for doing so, the Court of Appeal even though an appellate court can put itself in the position of the trial court and make necessary findings based on the evidence led at the trial as evidenced from the record of appeal. He cited S.15 of the Court of Appeal Act and the following cases Enejo v. Sanusi (2008) All FWLR pt. 412 pg. 1084; Okedion v. Federal Airport Authority (2008) All FWLR pt.441 pg.914; Abubakar v. Joseph (2008) All FWLR Pt.406 Pg. 1920; Ohuabunwa v. Duru (2009) All FWLR Pt. 450 Pg. 551; Abubakar v. Yar’ Adua (2009) All FWLR pt.457 Pg.1; Agbanelo v. UBN Ltd. (2000) 7 NWLR pt.666, pg.534 at 557.
Counsel reiterated the law that there are five ways of proving title to land which includes traditional history. However where the traditional history of both parties are inconclusive, in the opinion of the trial court, it will then look at acts of possession to determine who has title to the land. He cited Idundun v. Okumagba (1976) NMLR 200, (1976) 9-10 SC 227; Auta v. Ibe (2003) 13 NWLR pt.837, pg.247; Ilona v. Idakwo (2003) 11 NWLR pt.830 pg.53; Okochi v. Animkwo (2003) 13 NWLR Pt.851 Pg.1; Mubo v. Alale (2008) All FWLR pt.404 pg.1473.
Learned senior counsel argued that from the facts of the case, the issue of traditional root of title was no longer necessary because that was decided in the 1934 case where both parties pleaded and gave evidence of their traditional root of title. In the said suit, the court resolved completely and effectually the rights of the parties by granting the small portion of what was in dispute in Eruishan land to Respondents and also conferred the benefit or title or possession of what was left in Eruishan land to Appellants. This, he opined is the reason why both parties in their evidence and pleadings relied on the 1934 judgment as estoppel per rem judicata. He cited Ikotun v. Oyekanmi (2008) All FWLR pt. 433 pg.1271; Turtfuri v. Rawayyah (2008) All FWLR Pt. 401 Pg.1000; Abgogunlori v. Depo (2008) All FWLR Pt.408 Pg.240; Duke Ogu v. Amundi (2008) All FWLR pt. 438 pg.257.
He argued that since the learned trial judge refused to pronounce on whether the 1934 case can be used as res judicata by either of the parties, the counsel urged this court to so hold. Senior counsel also argued that it was wrong of the learned trial judge in deciding the case in favour of the 1st and 2nd Plaintiffs/Respondents to rely only on acts of possession as well as Exhibit C a Gazette and Exhibit L, the map of Delta state.
Learned senior counsel for the Appellants argued repeatedly and strenuously that in view of the peculiar facts of this case, finding of facts relating to acts of possession must be tied to the 1934 and 1965 judgments which the learned trial judge failed to do. He complained that by not relating the acts of possession to the area adjudicated upon before in the previous suits, the trial judge gave the impression that the parties were coming to court for the first time in which case proof of acts of possession can sustain a claim for a declaration as distinct from the facts of this case which previously determined the rights of the parties in the previous suits with respect to the land in dispute. The present suit narrowed the issue in contention to the exact land adjudicated in favour of 1st and 2nd plaintiffs in the previous suit as well as the Appellants. He argued that the documents which the trial judge relied on to give judgment in favour of plaintiffs came into existence over 22 years after the case was filed, even though the information cannot be vowed for yet the trial judge used same to determine the rights of the parties.
Learned Appellants’ counsel argued that State creation and Local Government Areas are based on decisions of Government for administrative convenience. It does not determine ownership of land in any part of the country. He submitted that the trial judge relied on the wrong principle of law with respect to the superiority of documentary evidence like Exhibits “C” and “L” and that the fact that the land is placed in a particular local government area as that of plaintiffs by government does not prove that plaintiffs who are from that Local Government own the land. He argued that it is a matter which the court can take judicial notice of that the Ijaws in this country are in Bayelsa, Delta and Ondo which confirms that Government delineation of land is not in any way connected to title of persons to the land. In this case, appellants saying the land is in Udu is because of the contiguous nature of the land to their town which is in Udu Local Government Area. Government did not set up any commission of inquiry to determine ownership of Paima and Ayama which appellants proved is their villages on the land in dispute. Paima and Ayama shown on Exhibits “L” and “C” is not the totality of the land put in dispute and consequently the court cannot use the exhibits as a yardstick to award the entire land put in dispute to plaintiffs using the said documents to determine this case.
Appellants’ counsel argued that the error of the trial judge in using the Map and Gazette which showed that Paima and Ayama are placed by Government in Warri South-West Local Government Area stems from the fact that the trial judge had assumed wrongly that the name of the land is Paima and Ayama. Flowing from that it would appear in the mind of the Court that the land being disputed is Paima and Ayama contrary to what the parties pleaded. As a fact the plan of both parties showed these two villages which are a very small fraction of what is in dispute.
Since the dispute of ownership was already in court at a time all the parties were in one Local Government Area, subsequently creation of Local Government Areas to place the parties in two different local government areas cannot affect or determine ownership of the land in dispute just because the government of the day had by administrative convenience placed the particular area in dispute under the local government of the appellants. He argued that the court is the only competent authority to decide that issue without being influenced by what the government had done.
Counsel also argued that the documents were inadmissible from the Bar being tendered as such after both parties had closed their case. The admissibility of exhibit “C” and “L” the gazettee and Delta State plan respectively was strongly contested at the trial court by the Appellants. He urged this court to expunge the documents from evidence as being inadmissible and irrelevant.
Learned Respondents’ counsel argued that the learned trial judge gave cogent reasons for relying on Exhibits C and L. He urged the court to take judicial notice of the fact that the Respondents herein are members of the Isaba Community in Delta State which was formerly part of Bendel State. Exhibit C is the Local Government Law of 1980 of Bendel State. Exhibit C contains the list of all the villages, hamlets, etc that make up Bendel State. Villages which make up the Respondents Clan were listed out and the land in dispute in this Suit (Ayama and Pamie) are clearly listed there as part of Isaba clan.
He urged this court to take judicial notice of the law and that the court is obliged to rely on the law and give effect to it since the existing law placed the land in dispute viz: Ayama and Pamie as part of Isaba clan land of the Respondents.
Learned Respondents’ counsel also argued that the trial court analysed and evaluated the evidence of all the appellants’ witnesses before arriving at the conclusion that they did not show sufficient and tangible acts of possession on the land in dispute. On the other hand, the Respondents were able to show visible acts of possession and exercise of acts ownership, on the land in dispute, like building Grammar School, Maternity, Pere’s (king’s) palace, cemetery, etc.
Counsel argued that the oral evidence of the legion of witnesses of the appellants cannot supersede and vary the documentary evidence of the respondents. He cited Owoyemi v. Adekoya (1998) 8 NWLR pt.560 pg.70; Tumo v. Murana (2001) FWLR pt.33 pg.369 at 373 ratio 8.
Counsel also argued that the court cannot discountenance Exhibit L because Local Government creation is done by taking into consideration, administrative convenience, but the common interest of the community and traditional association of the community. Counsel also argued that the fact that the two exhibits were made during the pendency of the suit is immaterial as none of the authors of the two exhibits were interested parties. Exhibit C was made by the Government of Bendel State while Exhibit L a map of Delta State was made by the Surveyor-General of Delta State. Counsel insisted that the judgment was based on the issues joined by the parties.
The two principal points made out by the Appellants on this issue are (1) That the learned trial Court did not properly evaluate the evidence adduced by both parties during the trial and accepted wholesale the evidence of the Respondents without considering the case made out by the Appellants.(2) That Exhibits “C” and “L” were made after the cause of action arose and are thus inadmissible to prove long acts of possession on the land by the Respondents.
On the first point made by the appellants, the learned trial judge held at pg.42 of the judgment and on pg. 324 of the record as follows:
“Putting the totality of the testimony adduced by both parties on an imaginary scale, weighing one side against the other, deciding upon the preponderance of credible evidence there is no doubt that, that of the plaintiffs out weighs that of the defendants in the plaintiffs’ claim.
Yet, in the counter-claim of the defendants, the evidence of the plaintiffs also outweighs their own evidence.
The documentary evidence tendered by the plaintiffs exhibit L, the map of Delta State, and the exhibit C, the gazette for which I have properly evaluated and drawn necessary influence from same. They show very clearly well where the land in dispute is situated that is, its not in Udu Local Government, where the defendants hail, but it is in Warri South-West Local Government Area, the plaintiffs Local Government Area.”
I have read the judgment of the trial court and I am unable to agree with the learned senior counsel for the Appellants that the learned trial judge did not properly evaluate all the evidence proffered by both parties. The learned trial judge after a general review of the evidence led by both parties concluded that the preponderance of evidence was in favour of the Respondents. At Pg. 36-40 of the judgment and Pg. 318-322 of the records, the learned trial judge evaluated thoroughly the evidence of the parties as follows:
“The plaintiffs case is that their ancestor Ison founded a virgin land and did not meet anyone on the said land, for which they have continued to exercise acts of ownership and that Aladja is a recent settlement, such that the Defendants Aladja people cannot be said to have found the land in dispute.
A party who relies on acts of ownership spanning several years as his root of title is in fact saying or confessing that he does not know the historical origin of his title, but that they have openly and without resistance from anybody been exercising dominion as the owners of the land for several years.
The court may infer from such evidence that even if the plaintiff has not shown the origin of his title, he may be accepted as the owner from such acts of open and unchallenged ownership. Like plaintiffs did in this case, when they challenged defendants in that 1965 suit over the canal dug by Tennessee, and by this present suit, for which they have in their favour the 1935 judgment. See the case of Ekpo v. Ita II NLR 68 pg.419-420 paragraph h-b.
Anyone who pleads acts of possession as his root of title is really relying on the presumption that possession is 9/10 of the law and that he who is in possession is presumed by S.145 of the Evidence Act to be the owner and that the onus of proving that he is not the owner is on the person who affirms that he is not the owner. Like in plaintiffs case, acts of possession becomes material where the traditional evidence is inconclusive, as in plaintiffs case. See the case of Balogun v. Akanji (2005) All FWLR Pt.262 pg.405 SC; Kojo v. Bonsie (1957) 1 WLR 1223.
The plaintiffs have shown that they have acts of possession physically on the said land, and trespass to land is actionable at the suit of the person in possession of the land, as exclusive possession of the land gives the person in such possession the light to retain it and to undisturbed enjoyment of it against a wrong doer, except a person who has established a better title. See Amakor v. Obiefuna (1974) 3 SC at 69. This is the main question at the stage for determination. The Defendants called DW1, a registered surveyor, who produced a plan on the land in dispute and super imposed that of 1965 case/plan on it, exhibit F.
DW2 a retired staff of NNPC said he knows the land belongs to Aladja people with boundary with Gbekebo and Aladja. Isaba he said is in Warri South-West, while Aladja is in Udu local Government Area. DW3, another witness for defendants said he knows the land in dispute, and admitted not knowing the traditional history of Udu people. DW4 said he does not know the founder of Aladja, but that the land in dispute belongs to the defendants, the Aladja people.
DW5 tendered a letter of authority given to him by his people to enable him testify in this case – Exhibit H for which he also tendered an intelligence report, Exhibit J, he admitted that Aladja has no boundary with Isaba. DW6 also tendered exhibit K, a letter of authority enabling him to testify in this case, for which he further tendered documents to show that Paemi the land in dispute is not an ljaw community as he said the Paemi people pay dues to the Aladja people. He tendered exhibit K1-3. He said the land in dispute belongs to the defendants Aladja people.
DW8 said Isaba is an extreme end of Aladja and that the defendants i.e. the Aladja people own the land in dispute. Evwrirhe he said was the 1st person to settle on the land in dispute as it was a virgin land. He said the ancestor of the Defendants gave Plaintiffs the land to settle on with a condition that the Pere of Isaba must be an Aladja person. DW8 now traced the mother of the present pere to a descendant of Aladja. DW8 gave a history of how Aladja was founded. He said with regards to their counter-claim, the plaintiffs disobeyed the court injunction and built on the land in dispute, desecrated the shrines, fell their trees outside the area they got judgment in their favour in the 1935 judgment. He said Paemi and Ayama are in Udu Local Government Area and that they are the land in dispute.
DW8 however admitted that plaintiffs own the maternity, dispensary, Pere’s palace and other establishment on the land in dispute. The totality of the brief as aforementioned is the case for the defendant, in support of their counter-claim, and in defence of plaintiffs claim. Have the Defendants proved a better title than that put forward by the Plaintiffs? The plaintiffs led evidence showing various acts of possession on the said land in dispute such as maternity, grammar school, Pere’s palace, health centres and other establishment for which the defendants (DW8) evidence supports that of the plaintiffs.
In a claim for declaration of title, the onus is on the plaintiff to satisfy the court on the evidence produced by them, that they are entitled to the declaration sought. To this end, the plaintiffs must rely on the strength of their own case and not on the weakness of the defendants case and if this onus is not discharged, the weakness of the defendants case will not help them. The general rule is however subject to the important qualification that if the defendants case supports that of the plaintiffs, and contains evidence on which the plaintiffs may rely on, the plaintiff is fully entitled to make use of such evidence. See the case of Odi v. Iyala (2004) All FWLR Pt.207, Pg.570 also (2004) 8 NWLR Pt.875 at 283.
T. C. Williams in his address did refer to that piece of evidence emanating from DW8, to the established facts already given in line with the plaintiffs evidence, supporting their pleadings, that plaintiffs have established several acts of possession on the land in dispute. The evidence from the defendants that plaintiffs flaunted the order of court restraining them from doing anything on the said land, which evidence does not really help the defence, in the fact of the overwhelming evidence already led by the plaintiffs as to their title to the said land.
Out of the plaintiffs on one side and defendants on the other, who can be said to have credibly led, sufficient evidence on any of the required conditions for proving title to land, such as to have been proved as required by law, on a preponderance of evidence.
The facts of the case before court as presented by the plaintiffs on the one hand and that of the defendants, i.e. facts pleads, elicited in the evidence have been scrutinized to determine which party’s case preponderates over the other. The witnesses of the defendants apart from the DW1, the surveyor who said he produced the survey plan and described the features therein all others are more of boundary witness. The DW8, who appeared to have been the star witness have testified more than others merely gave a history of how Aladja was founded and how it is Aladja people who found the land in question.
The evidence of 1st defendant is that Isaba people, i.e. (the plaintiffs) have their real name as ESABO, meaning surety in Urhobo language; which he said has been corrupted to be called Isaba, as plaintiffs move from place to place. 1st defendant gave a history of how Aladja was founded and that Ehure was the first person to settle on the land in dispute, as it was a virgin land, and that people sought their permission to settle on the virgin land.”
Having read the masterly evaluation set out above by the trial court, I am of the firm view that the learned trial judge properly evaluated and drew the necessary inference from the evidence led by the parties to arrive at the conclusion that while the Respondents as Plaintiffs proved their claim, the Appellants as Defendants did not prove the counter-claim when the recent acts of possession as put in evidence by both parties are put on the balance of probabilities.
On the second point raised by the Appellants, it is pertinent to note that witnesses for both sides during the trial insisted that the land in dispute is in their respective local government areas. In paragraph 28 of the 10th amended statement of claim at Pg.197 of the record, the Respondents claimed that the land in dispute is in their area which is Warri South-West Local Government Area and led evidence to that effect. On the other hand, the Appellants in paragraph 36 of the 9th Amended Statement of Defence on Pg.73 of the record claimed that the land, is in Udu Local Government Area of Delta State where they hail from and led evidence to that effect. Clearly issues were joined on which local government area the land in dispute is. It is trite that only facts are pleaded and not the evidence to prove the facts. See Nwadioro v. Shell (1990) 5 NWLR pt. 150 pg.332-4; Onamade v. ACB (1997) 1 NWLR Pt. 480 Pg.123. Exhibit L is the authentic map of Delta State published by the office of the Surveyor-General of the State which shows that the land in dispute is situated in Warri South West Local Government. Exhibit C is a written legal instrument – gazette of the then Bendel State Government which was still applicable in Delta State. During the trial both parties insisted that the two principal villages in dispute belong to them. In Exhibit “C”, all the villages, hamlets that make up Isaba clan were duly listed out, and Ayama and Pamie which are the land in dispute, are clearly listed as part of Isaba clan.
I agree with learned Respondents’ counsel that boundaries are fixed either by statute or orders of authorities having jurisdiction and the best method of determining the Local Government Area to which the disputed land belongs is by reference to the instruments establishing the Local Government Area as such instruments would define extent of their areas of authority. See A.G., Cross-River v. A.G., Federation (2005) 6 SCNJ 152 at 157 – 158. The point being made here is that the facts contained in Exhibits C and L being pleaded are relevant and thus admissible. Being admissible, they can be relied upon to arrive at a decision by the learned trial judge. The main contention against both exhibits is that they were made during the pendency of the suit. By S.151(1) of the Evidence Act 2011 Area Maps made by any authority shall be admissible as evidence in court without further proof. Also, the government of the defunct Bendel State and the office of the Surveyor-General of Delta State cannot by any stretch be considered “interested parties” to this dispute to make exhibits L and C inadmissible. It is only documents made by parties and/or interested parties during the pendency of litigation that are not admissible. see S.83(3) Evidence Act 2011; S.E.A.P.S. Ltd. v. Ogunnaike (2008) 14 NWLR Pt.1106 Pg.1 at Pg. 5; Susano Pharm., Co. Ltd. v. Sol Pham. Ltd. (2000) FWLR Pt. 10 Pg.1595 at Pg.1598. I am of the humble view that the arguments of learned Appellants counsel on this issue is misconceived. This issue is resolved against the Appellants.
ISSUE THREE
Learned senior counsel for the Appellants on this issue is of the view that the amendment effected by the Respondents in the 10th amended statement of claim makes the case of the 1st and 2nd Respondents so inconsistent, contradictory and in conflict with the pleadings of the 3rd respondent that it was unreasonable of the learned trial court to have granted the declarations sought by the 1st and 2nd respondents. He argued that in their initial pleadings and evidence, the 1st and 2nd respondents had claimed that the disputed land belonged to the Olu of Warri who granted permission to the Isaba clan to settle on the land and the Isaba people gave the Olu of Warri a wife in appreciation. However in the 10th amended statement of claim, the 1st and 2nd Respondents changed their traditional history and claimed that they owned the land because it was founded by their ancestor Izon. In paragraphs 6-10 of the 10th Amended Statement of claim the 1st and 2nd respondents claimed that they were later protected by the Olu of Warri from molestation and in appreciation gave a maiden to the Olu of Warri as wife who bore the children who make up the Itshekiri royal families to date. Counsel argued that by the 8th Amended statement of claim applicable to the 3rd Respondent the land put in dispute was given to 1st and 2nd Respondents to inhabit or stay, subject to the overlordship of the 3rd Respondent. However by the last pleadings of 1st and 2nd Respondents which is the 10th amended statement of claim they claim absolute title to the land not subject to the over lordship of the Olu of Warri who is the 3rd plaintiff.
In other words the Respondents are claiming two different reliefs by prayer 28(1) of the 8th amended statement of claim for 3rd Respondent and paragraph 28(1) 10th amended statement of claim for 1st and 2nd Respondents. Senior counsel insisted that after counsel had amended the pleadings of 1st and 2nd Respondents to contradict the interest of the 3rd Respondent the suit became improperly constituted as both sets of plaintiffs cannot bring a single action claiming different reliefs which are contradictory to each other. Counsel cited Ogolo v. Fabura (2003) 11 NWLR Pt.831 Pg.231; Williams v. Nissu (2001) 3 NWLR Pt. 700 Pg.376-385.
Senior counsel argued that it was most irregular for the trial court to grant the claims of the 1st and 2nd Respondents while ignoring or failing to address the claims of the 3rd Respondent. Senior counsel then invited this court to dismiss the Respondents’ case for being improperly constituted thereby making it impossible to grant.
Learned counsel for the Respondents argued that issue 3 as canvassed by the Appellants is misconceived. Counsel argued that since traditional history was not a determining factor, the trial court having held that both traditional history of the parties were conflicting, the Appellant cannot now begin to raise issues of traditional history which was not the basis of the judgment of the trial court. He also argued that the Appellants can only pursue their case on appeal and not to make a case for any other party in this case. He cited Chime v. Chime (2001) FWLR Pt.39 Pg. 1457 at 1459.
Counsel also argued that the Respondents were entitled to plead and give evidence which contains a shift in traditional history as opposed to conflict in the history. Counsel insisted that the Respondents only gave evidence of a shift in traditional history. He cited Makinde v. Akinwale (2000) 1 SCNJ 101 at 104; Alli v. Alesinloye (2006) FWLR Pt.15 Pg.2610 at 2614; Nkado v. Obiano (1997) 5 SCNJ 33. Since the 3rd Respondent had not appealed against the findings of the trial court, it does not lie in the mouth of the Appellants to complain.
I have considered the arguments of counsel on this issue at pg. 323 of the record on Pg.41 of the judgment of the trial court, the trial court held as follows:
“The law is also settled that where traditional evidence of the parties in a land matter is in conflict or inclusive as in the case at hand, the court should not go by the credibility of witnesses, but should also examine the acts of ownership or possession done by either party in recent time as it relates to the land in dispute.”
It is thus clear that the learned trial judge held the evidence of traditional history proferred by both parties inconclusive or in conflict and had to fall back on evidence of recent acts of possession to decide who had been in actual physical possession and the likely owner of the land in dispute. In so far as the learned trial judge did not decide the case on who showed better traditional evidence, I do not think the complaint raised in this issue is well founded.
Apart from that, a slight shift in traditional history is permissible in law since traditional history is not static there being no written records and parties depend on oral accounts of what transpired centuries ago. I have read the claims of the 1st and 2nd respondents as plaintiffs at the trial court as contained on pg. 193 – 198 of the record where the 10th amended statement of claim is printed. I have also read the statement of claim of the 3rd respondent then 3rd plaintiff on Pg. 2-4 of the records. From paragraph 8-10 on Pg.3 of the record, the 3rd respondent then plaintiff pleaded as follows:
8. It was in exercise of this overlordship rights that on arrival from their different original places of habitat the 3rd plaintiff’s ancestors-in-title gave to the 1st and 2nd plaintiffs on the one hand and the defendants on the other hand their places in Isaba and Ogbe-Sobo respectively. In this regard the 3rd plaintiff avers that the 1st and 2nd plaintiffs were the earlier of them herein mentioned to arrive within the area of jurisdiction of the 3rd plaintiff/predecessors-in-title and that it was much later afterwards that the 1st and 2nd defendants came. Each was permitted/allowed in their now respective places namely Isaba as regards the 1st and 2nd plaintiffs and Ogbe-Sobo as regards the defendants by the 3rd plaintiff/predecessors-in-title.
9. On the arrival of the ancestral leader of 1st and 2nd plaintiffs and his people to Isaba and the land in dispute, the same was uninhabited and was controlled and within the territorial jurisdiction of the predecessor of the 3rd plaintiff.
Accordingly the 1st and 2nd plaintiffs sought and obtained the consent and permission of the said 3rd plaintiff/predecessor-in-title which was given to them.
10. As a mark of appreciation of their grant to occupy and use Isaba, Ison and his people gave the then Olu a beautiful maiden in marriage and thence forward the relationship between them and the said Itsekiri had remained cordial and warm even unto the time of filing this statement of claim.
By paragraphs 3, 4, 6, 9,and 10 the 1st and 2nd Respondents as plaintiffs pleaded in the 10th Amended Statement of Claim that the land was virgin land when the Isaba people migrated thereon but they had to seek the protection of the then Olu of Warri. Paragraph 9 of the 3rd Respondent’s (then plaintiff) statement of claim states that when the Isabas came on the land in dispute, it was uninhabited but within the territorial jurisdiction of the 3rd Respondent.
There is thus in my view no material contradiction in the pleadings of the 1st and 2nd Respondents on one hand and the 3rd Respondent on the other hand.
I have to agree with learned Respondents’ counsel, that even if the trial court completely ignored the claim of the 3rd Respondent, the 3rd Respondent having not cross-appealed nor complained against the findings and judgment of the trial court, there is no need for the Appellants to cry more than the bereaved. I see no merit in this complaint and it is resolved against the Appellants.
In the circumstances the appeal is dismissed. I award N50,000.00 costs against the Appellants collectively in favour of the Respondents.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA. His lordship has dealt extensively and incisively too, with the issues raised for the determination of the appeal and I am in complete agreement with the exposition of the law, reasoning and conclusions in the lead Judgment. I not only have nothing to add to the Judgment, but also adopt the lucid lead Judgment as mine.
Accordingly, I too, resolve the issues in the appeal in the same manner they have been resolved in the lead Judgment and dismiss the appeal. I also abide by the order relating to costs as made in the lead Judgment.
TOM SHAIBU YAKUBU, J.C.A.: I had the privilege of reading before now, the draft of the judgment just delivered by my Lord H. M. OGUNWUMIJU, JCA. I am in complete agreement with the lucid reasoning and resolution of the issues in this appeal, by his Lordship to my full satisfaction, to the effect that this appeal must be dismissed.
I have nothing more useful to add to the said lead judgment. I too dismiss this appeal as lacking in merits.
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Appearances
Albert Akpomudje (SAN) with him Omo-Eboh, Ukpong, OmotosoFor Appellant
AND
T. C. Williams Esq.For Respondent
