CHIADIGHKAOBI ADIUKWU v. JOHN CHUKWUEMEKA ENWEREJI (2016)

CHIADIGHKAOBI ADIUKWU v. JOHN CHUKWUEMEKA ENWEREJI

(2016)LCN/8488(CA)

In The Court of Appeal of Nigeria

On Friday, the 15th day of April, 2016

CA/OW/89/2013

RATIO

EVIDENCE: NATURE OF RES JUDICATA
The principles of estoppels or plea of res judicata is meant to stop a party from relitigating over a matter or issue that has enjoyed conclusive or effective adjudication and determination by a competent Court of law. I believe it was evolved to ensure the certainty of the law and enforce acceptance of Court decisions, to ensure that there is an end to litigation over a given issue or subject matter between the same parties and/or their privies.
Section 169 of the Evidence Act, 2011, says:
When one person has, either by virtue of an existing Court judgment, deed or, agreement, originally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representive, in interest, shall be allowed, in any proceeding between himself and such person or such persons representative in interest, to deny the truth of that thing.
Sections 173 and 174 of Evidence Act 2011, stipulate, as follows:
(173) 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 on 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 the judgment is intended to be proved.
(174) (1) if a judgment is not pleaded by way of estoppels, it is as between parties and privies, deemed to be a relevant fact, whenever any matter which was or might have been decided in the action in which it was given, is in issue, or is deemed to be relevant to the issue, in any subsequent proceeding.
(2) Such judgment is conclusive proof of the facts which it decides, or might have decided, if the party who gives evidence of it had no opportunity of pleading it as an estoppel.” PER ITA GEORGE MBABA, J.C.A.
EVIDENCE: ELEMENTS FOR THE SUCCESSFUL PLEA OF RES JUDICATA
In the case of Igwego V. Ezeugo (1992) 6 NWLR (pt.249) 561; 7 SCNJ 282,(1992) LPELR 1458, the Supreme said:
Where res-judicata is pleaded by way of estoppels 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 findings of fact. For the plea to succeed, the following must be established:
(1) That the issues and subject matter were the same in the earlier as in the second action or that the plaintiff had an opportunity of recovering and, but for his own fault, might have recovered in the first action that which he seeks to recover in the second action. The cause of action must have been determined on the merits. This is so because the plea has for its rationale the two legal Maxims: interest reipublicate ut sit finis litium and nemo debet bis vexari pro una et eadem causa;
(2) The parties must be the same parties include their privies either in blood, law, or estate;
(3) The judgment in the earlier action must be final one. Per Ogundare JSC.
See also Ukaegbu V. Ugoji (1991) 6 NWLR (pt.196) 27; Ntuks V. NPA (2007) 13 NWLR (pt.1050) 392; (2007) LPELR 2076 (SC); Okposin V. Assam (2005) 14 NWLR (pt.945) 495. See also Long-John and Ors V. Blakk & Ors (2005) LPELR 1792 (SC).
Where the Supreme Court also held:
It is trite law that before a plea of res judicata can succeed, the previous action sought to be pleaded and the present action must be between the same parties, the subject matter must be the same, the claim, must be the same and the Court which pronounced the judgment must be a Court of competent jurisdiction. PER ITA GEORGE MBABA, J.C.A.

JUSTICES:

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

CHIADIGHKAOBI ADIUKWU – Appellant(s)

AND

JOHN CHUKWUEMEKA ENWEREJI – Respondent(s)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Abia State High Court in Suit No. A/224/2008, delivered on 21/11/2012 by Hon. Justice O.Z. Ikeorha, wherein the learned trial Court dismissed the claims of the Plaintiff, who is Appellant herein.

The reliefs sought at the Lower Court were:
“(a) Declaration that the Plaintiff is entitled to the Statutory Right of Occupancy over the part of the land traditionally called ‘Okpulor Adikwu’ situate at the entrance to Umuadikwu compound at Amufuni Village in Aba South LGA.
(b) The sum of N5,000,000.00 (Five Million Naira) only, being special and general damages for trespass.
(c) A declaration that the Defendant has no right to close or interfere with the entrance into the compound street of Umuadikwu with shops or any other structure or thing.
(d) A perpetual order of injunction restraining the Defendant by himself, his agents, servants, workmen, privies and or assigns whosoever from entering into, building on alienating or in any way, whatsoever interfering or dealing with the land in dispute, (See page 5 of the

Records).

The Defendant (now Respondent) Counter-claimed and also sought declaration of title, relying on the Customary Court judgment in Suit No. CC/AB/94/87: Sunday Adikwu Vs Chukwuemeka Enwereji, delivered on 30/6/1988, as estoppels. He also sought an order for injunction, forfeiture and damages for trespass.

The Defendant, by preliminary objection, date 14/7/2010, challenged the jurisdiction of the trial Court, contending that the judgment of the Customary Court in Suit No. CC/AB/94/87 operated as estoppels parem judicata. In a considered ruling thereof, the trial Judge upheld the objection and dismissed the Plaintiffs Suit on 21/11/2012.

A brief facts of the case showed that the parties were/are related, tracing their ancestry to a common progenitor one late Adikwu of Amaufuru Village, Etiti Ohazu Antonomous Community. A dispute had earlier arisen over the land, which led to the Suit No. CC/AB/94/87, between Sunday Adikwu V. Chukwuemeka Enwereji, which was adjudged for the Respondents family. Sunday Adikwu was one of the Sons of late Adikwu (and an uncle of the parties in this Suit).

The Respondent said Appellant

had colluded with the Plaintiff in the said Customary Court action to institute and maintain the Suit and so Appellant was bound as privy to the said CC/AB/94/87. In the light of the above, the Respondent said the issues to be determined in this case had been, principally, narrowed down to whether the subject matter and issues in the earlier Suit No. CC/AB/94/87 and the present Suit are the same or similar. Of course, the trial Court had answered this in the affirmative.

Appellant file his Notice of Appeal on 11/12/2012 and raised 4 grounds of appeal. (Pages 215 to 219 of the Records). He filed Amended Notice of Appeal on 20/5/2013, with the leave of this Court granted 10/6/2014 (when the Amended Notice was deemed duly filed and served). The Amended Notice of Appeal raised seven grounds. Appellant filed his brief of arguments on 20/5/13, which was deemed duly filed on 10/6/14. He distilled six (6) issues for determination of the appeal, as follows:
“(1) Whether the preliminary objection dated the 4th day of July, 2010 on resjudicata was competent, when the Defendant (Respondent) did not plead resjudicata in his statement of defence.
(2) Whether

the Honorable Judge was under a duty to consider the issue of issue estoppels or whether the issue(s) in the two Suits are the same being a vital ingredient in resjudicata and the consequence of his failure to consider the issue.
(3) Whether the Honorable Judge was right in finding that the Okpulor Adikwu land in the Customary Court was the same as the Okpulor Adikwu land in the present Suit, considering the proceedings of the Customary Court and the pleading of the parties, thus, making the subject matter considered and given judgment on by the Customary Court the same as the one in this Suit.
(4) Whether the Honourable Judge was right in holding that the Appellant herein was privy to the Customary Court Suit judgment in CC/AB/94/87.
(5) Whether the word struck out used by the Customary Court meant dismissed, thus, bringing finality to the settlement of the issues.
(6) Whether the Honorable Judge properly evaluated the proceedings of the Customary Court, the pleadings of the parties and the respective affidavits, before arriving at the decisions.

The Respondent filed his brief on

16/9/14, which was deemed duly filed on 24/2/2015. He formulated only a lone issue for the determination of the appeal, as follows:
Whether, in the light of decision of the Customary Court in Suit No. CC/AB/94/87, the Court below was not right in holding that the Appellant is estopped from relitigating the issues raised in this Suit and thereby dismissing the Appellants Suit.

Arguing Issue 1, Appellants Counsel, I.A. Nwabughogu Esq, (who settled the brief), referred us to the amended statement of defence by the Respondent on pages 142 – 148 of the Records and to the Notice of preliminary objection on pages 149-153, and said that the Respondent, merely, pleaded the summons in the Customary Court case in CC/AB/94/89; that nowhere in his statement of defence, the rejoinder and the amended statement did he plead estoppel or resjudicata. He said that before the Respondent (as defendant) could take benefit of estoppel or resjudicata, he ought to plead it, setting out the particulars to enable the plaintiff (appellant) appreciate the defence which denied him right to litigate. He relied on Abubakar V. F.M.B Ltd (2002) 15 WRN 95

at 104 -106; Amawo & Anor V. A.G. North Central State & Ors (1973) 6 SC 47 Ezekpelechi V. Ugorji (1991) SCNJ 244.

Counsel also said that the parties had joined issues in their pleadings, particularly, the Respondents Paragraphs 33 -34 of the statement of defence, relating to the pleaded Customary Court Suit. Thus, issues having been joined, there ought to be a trial and not to be dealt with by way or preliminary objection on resjudicata, when resjudicata was not raised in the pleading.

Counsel further argued that giving regard to the judgment being the judgment of a native Court, in which there was no plan or pleadings, assuming but not conceding that the issue of resjudicata was pleaded by the defendant (Respondent), the trial Court should have first heard the matter, taking evidence before coming to a conclusion on the propriety or other wise of the plea. He relied on Udeze & Ors V. Chidebe & Ors 1990 (pt.1)WLR 1 at 20;

Counsel admitted that the disputed plan of the parties shows that the land in dispute is adjacent to the entrance to the compound street (Ama) which was the subject of contest

in Suit NO.CC/AB/94/87; but said that the Respondent, as defendant and DW1 in the said Suit CC/AB/94/87, confirmed that the land in dispute was allocated to the appellants father, Jeremiah Adikwu by the entire village, after the performance of Customary rite. Counsel referred us to that evidence of DW1, on page 116 of the Records, and said that if the trial Court had heard the case of the plaintiff, evidence would have been adduced to show that, apart from his father, the four other persons mentioned by the Respondent included the father of the appellant, as having performed, this Customary rite and allocated building space or place of abode by the village.

He argued us to hold that the application (preliminary objection) was incompetent and that the trial judge had no jurisdiction to entertain it.

On issue 2, Counsel submitted that for a party raising resjudicata to succeed, he must establish that the issue(s) in the two suits are similar, amongst other preconditions, which must be met. He relied on Abubakar V. F.M.B Ltd (2002) 15 WRN 93; Afolabi V. Gov. Osun State (2003) 13 NWLR (pt.836)119; Akayepe V. Ganiyu Ayanrinola Akayepe (2010) WRN. Counsel said that the

trial Court failed to determine whether the issues were the same.

On issue 3, Counsel said the trial Court was wrong to hold that the claims/reliefs sought by the claimants in the two suits were on the same subject matter Okpulor Adikwu situate at Amaufuru Village in Aba South L.G.A.

On issue 4, Counsel said that the trial Court was wrong to hold that Appellant was privy to the suit in CC/AB/94/87 in the Customary Court; he argued that the plaintiff took out the case in his personal capacity and testified, claiming the land for himself (pages 164-172 of the Records).

He argued that for Appellant to be privy to the said Customary Court judgment, he must be shown to have direct interest in the subject matter of the dispute. He relied on the case of Ndulue V. Ibezim & Ors (2002) 12 NWLR (pt.780) 139 at 162-163; Odemuyiwa V. SOSAN & Ors (1983)1 FNR1 which held that a privy is a person whose title derived from and who claims through a party

Counsel further argued that Appellant was not a son or brother of the plaintiff in the Customary Court case, neither did they have any estate in common; that

privies in the Customary Court Suit should have been or should be the plaintiffs sons; that the evidence of the Respondent in this case, while as defendant at the Lower Court, was that the land in dispute was allocate to the father of the Appellant by the village. He urged us to resolve the issue for Appellant.

On issue 5, whether the trial Court properly evaluated the proceedings of the Customary Court, the pleadings of the parties and the respective affidavits, before arriving at the decision, Counsel answered in the negative. Counsel referred us to judgment of the Customary Court on pages 190-191 of the Records, as to the findings of that Court, which held that there was no trespass committed by the defendant against the plaintiff and that the plaintiff, had neither any legal right nor traditional or Customary claim over the Ama/Avenue entrance to the compound. Counsel also referred us to pages 213 of the Records of Appeal, where the Lower Court praised the decision of the Customary Court, thus:
In the humble opinion of this honourable Court, the lucidity employed in making and wording the judgment, leaves no

one in doubts as to the full meaning, import and details of the same. This is even more so as it could be recalled that the panel, sitting over the case had to pay a visit to locus in quo, saw things for themselves before arriving at the conclusion they did in the said judgment.”

He referred us again to the conclusions of the trial Customary Court on pages 130 -131 of the Records, where it said;
If the Ama is covered in any way to the detriment of the occupiers of the Compound it will be the joint responsibility of all the adult males in the compound to challenge whoever that does that The suit is therefore struck out

Counsel said the above showed that the issues in the suit were not finally determined; that the Suit being struck out did not amount to issue of estoppel. He relied on Iwuagolu V. Azyka (2007) 5 NWLR (pt.1028) 613 at 634.

He urged us to resolve the issue for Appellant.

On issue 6, Counsel submitted that the Lower Court failed to examine the case and evidence of the Appellant, thoroughly, before coming to the decision; he said that the Court rather gave perfunctory consideration to the

case of the Appellant. He urged us to hold that the Lower Court failed to consider the address of the Appellant (as plaintiff), when he argued that even if the judgment of the Customary Court was regarded as having dismissed the suit, the same could not be said to have amounted to judgment for the Respondent, especially as the Respondent had stated at Customary Court, that the land was allocated to Appellants father by the village.

Counsel submitted that if the Lower Court had properly examined the judgment of the Customary Court, upon which the issue of resjudicata was hinged, the pleadings of the claimant (Appellant) and the issues raised in the claimants written address, the judgment would have been different; that the failure to thoroughly consider the evidence put forward and the pleading, led the Lower Court to the conclusions which ran contrary to the judgment of the Customary Court, the pleadings etc and the law.

He urged to resolve all the issues for the Appellant and allow the appeal.

The Respondents Counsel, F.I. Aniukwu Esq, who settled respondents brief, arguing their sole issue, referred us to the

salient parts of the ruling of the Court below, relating to the ingredients of resjudicata, when the Lower Court, on page 212 of the Records, said:
“The first observation is that a look at the claims/reliefs sought by the claimants in the two suits as earlier set out would show that they were suing in respect of the same subject matter viz Okpulor Adiukwu situate at Amaufuru Village in Aba South L.G.A. Again, the two claimants sued for damages for trespass and also for perpetual injunction against the defendant and his agents, privies, and whosoever that is connected to him, howsoever. Furthermore, the records of proceedings in the former Customary Court case; as well as the claimants claim in the substantive suit before me, showed clearly that the man SUNDAY ADIUKWU who sued the present Defendant JOHN CHUKWUEMEKA ENWEREJI, is the paternal uncle to both the present claimant Chiadighikaobi Adiukwu and the same Defendant, Chukwuemeka Enwereji; the said Sunday Adiukwu, being a brother of full blood to the respective late fathers of the parties in this present substantive suit. Moreover, the records showed

that the present Claimants direct brother of full blood, by name Israel Adiukwu, testified in favour of Sunday Adiukwu as the PW3 at the Customary Court of the respective fathers of the present parties before me and the said Sunday Adiukwu, having to fulfill the Customary rites before the compound or dwelling place was given to them, were all found to be false by the said Customary Court and they made their findings and gave their judgment, accordingly; wherein they stated that it was only the father of the defendant that fulfilled the traditional rites and was granted the dwelling place or compound, to live with his children and relations. That, indeed, was the one who established the dwelling place; and as such, the rightful owner of the Ama i.e. the entrance to the compound the claimant Chiadighikaobi Adiukwu, being a privy to the Customary Court Suit/Judgment in CC/AB/94/87, is caught up by the doctrine of estoppels per rem judicata. He cannot be seen to relitigate on the very issues and subject matter already dealt with by the Customary Court in their final judgment, same being a Court of competent

jurisdicition.

Counsel submitted that from the analysis made by the Court below, which juxtaposed the suit NO.CC/AB/94/87 with the suit at hand, the pleadings of the Appellant (plaintiff therein), the trial Court held that Appellant (plaintiff) was not allowed to set up his pleading contrary to the findings of the Customary Court on the same issues; that it was on the basis of the above that the Court below came to its conclusion that the suit was incompetent and thereby dismissed the same.

Counsel submitted that the decision of the trial Court was sound and cannot be faulted. He referred to Paragraphs 32, 43 and 44 of the Respondents statement of defence (pages 17 – 19 of the Records of Appeal) where the Respondent pleaded the judgment in CC/AB/94/87, as creating estoppel and resjudicata (contrary to the allegation by Appellant that estoppel resjudicata was not pleaded). He added that by law it is sufficient to plead facts of which the issue of estoppels could be founded. He relied on the case of Hein Nebelung Isensee K.G. V. UBA PLC (2012) 16 NWLR (pt.1326) 367 at 3884 395. Counsel added that issue of

estoppel/resjudicata was a threshold issue that needed to be treated as such; via the preliminary objection, and so it was not necessary for the case to go through full trial, in the circumstances.

Counsel submitted that the facts contained in the statement of claim in this Suit are clear; that at a glance, one can discern that the subject matter of the dispute is the land situate at the entrance to the compound street or Ama of Okpulor Adiukwu, which the Appellant claimed had been blocked by the Respondent; that in laying claims to the land, Appellant sought to rely on the self same evidence of joint ownership by the children of Adikwu, which line of evidence had been rejected by the Customary Court in the Suit No. CC/AB/94/87. He referred us, again, to page 213 of the Records of Appeal, where he said, the Court below took time to set out the Appellants pleadings in its ruling and rightly came to the conclusion that, in view of the Judgment of the Customary Court in CC/AB/94/87, Appellant cannot be allowed to re-litigate those matters contained in his pleadings.

Counsel also referred us to the Customary Court judgment on page 190 – 191

of the Records, wherein that Court, after receiving evidence and inspecting the locus, made specific findings, which incurred in favour of the Defendant (Respondent herein). Counsel summarized the evidence before the Customary Court as follows, and submitted:
“(1) That evidence showed that the father of the Respondent herein was the person who established the dwelling place (compound) in question.
(2) That it was the Respondents father who performed the necessary traditional rites for the grant of the Right of Occupancy over the land in dispute in accordance with Amaufuru Village Native Law and custom.
(3) That Ama Avenue or Entrance leading into the compound is demarcated on both sides with rows of raffia palms and the said Ama is by tradition, the property of late Enwereji Adikwu who was the owner of the Compound.
(4) That the building which the then plaintiff complained about did not block the Ama.
(5) That the Defendant (Respondent herein) did not commit any trespass against the plaintiff.
(6) That the plaintiff therein did not have any legal right neither did he have traditional or customary

claim over the Ama.
(7) That they Court rejected the evidence of the plaintiff therein and of his witnesses that the Okpulor Adikwu jointly performed the traditional rites for grant of the land.
(8) That it was upon the above findings that the Customary Court concluded that the plaintiff therein could not be granted Customary Right of Occupancy as he did not have any claim over the land in question.”

Counsel added that, it is trite, that issues decided in case
and the findings made thereon constitute estoppels in a later case. Thus, the Customary Court decision in CC/AB/94/87, as to the ownership of the land in dispute, operates as estoppels against the Appellant, who is not permitted, in law, to relitigate or re-open those issues in a subsequent suit. He relied on the case of Igwego V. Ezeugo (1992)6 NWLR (pt.249) 561 at 587 on the ingredients that can sustain the plea of resjudicata; namely:
“(1) The parties or their privies are the same, in the two cases.
(2) The res, namely, the subject matter are the same,
(3) The claim and issues in both the previous case and present case are the same.
He urged us to

resolve the issue against the Appellant and dismiss the appeal.”

RESOLUTION OF ISSUES:
I think there is only one issue for the determination of this Appeal, as rightly distilled by the Respondent; That is:
“Whether, in the light of the decision of the Customary Court in Suit No.CC/AB/94/87, the Court below was not right in holding that Appellant was estopped from relitigating the issues raised in this suit and thereby dismissing Appellants suit?”

A close study of the Appellants six issues for the determination of this appeal, shows that they are a proliferation of issues on the same complaint relating to the holding of the trial Court that the Suit was caught by the principle of estoppels or res-judicata. He had also queried, whether the trial Court had properly evaluated the evidence and proceeding at the Customary Court trial, to arrive at the conclusion of it operating as rejudicata to the new case, and whether the Customary Court decision was final as it merely struck out the suit. He also questioned whether Respondent pleaded resjudicata. I believe all that can be discussed and determined in the sole issue, aptly, distilled by

the Respondents Counsel.

The principles of estoppels or plea of resjudicata is meant to stop a party from relitigating over a matter or issue that has enjoyed conclusive or effective adjudication and determination by a competent Court of law. I believe it was evolved to ensure the certainty of the law and enforce acceptance of Court decisions, to ensure that there is an end to litigation over a given issue or subject matter between the same parties and/or their privies.
Section 169 of the Evidence Act, 2011, says:
When one person has, either by virtue of an existing Court judgment, deed or, agreement, originally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representive, in interest, shall be allowed, in any proceeding between himself and such person or such persons representative in interest, to deny the truth of that thing.
Sections 173 and 174 of Evidence Act 2011, stipulate, as follows:
(173) 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 on 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 the judgment is intended to be proved.
(174) (1) if a judgment is not pleaded by way of estoppels, it is as between parties and privies, deemed to be a relevant fact, whenever any matter which was or might have been decided in the action in which it was given, is in issue, or is deemed to be relevant to the issue, in any subsequent proceeding.
(2) Such judgment is conclusive proof of the facts which it decides, or might have decided, if the party who gives evidence of it had no opportunity of pleading it as an estoppel.”

There are scores of decided decisions on the above sections, relating to the application of the rules and principles of estoppels and plea of resjudicata, relevant to this appeal.

In the case of Igwego V. Ezeugo (1992) 6 NWLR (pt.249) 561; 7 SCNJ 282,(1992) LPELR 1458, the Supreme said:
Where res-judicata is pleaded by way of estoppels 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 findings of fact. For the plea to succeed, the following must be established:
(1) That the issues and subject matter were the same in the earlier as in the second action or that the plaintiff had an opportunity of recovering and, but for his own fault, might have recovered in the first action that which he seeks to recover in the second action. The cause of action must have been determined on the merits. This is so because the plea has for its rationale the two legal Maxims: interest reipublicate ut sit finis litium and nemo debet bis vexari pro una et eadem causa;
(2) The parties must be the same parties include their privies either in blood, law, or estate;
(3) The judgment in the earlier action must be final one. Per Ogundare JSC.
See also Ukaegbu V. Ugoji (1991) 6 NWLR (pt.196) 27; Ntuks V. NPA (2007) 13 NWLR (pt.1050) 392; (2007) LPELR 2076 (SC); Okposin V. Assam (2005) 14 NWLR (pt.945) 495. See also Long-John and Ors V. Blakk & Ors (2005) LPELR 1792 (SC).

Where the Supreme Court also held:
It is trite law that before a plea of res judicata can succeed, the previous action sought to be pleaded and the present action must be between the same parties, the subject matter must be the same, the claim, must be the same and the Court which pronounced the judgment must be a Court of competent jurisdiction.

In this case, Appellant had argued, strongly, that the Respondent did not plead resjudicata or principle of estoppels in the pleadings at the trial Court, let alone the application of the same to this case. He also argued that even if the Respondent were to have plead estoppel or resjudicata, that the Lower Court still had a duty to hear the plaintiff’s (Appellant) case on the merits, since the parties had already joined issues on the plea of existence of the Customary Court judgment Suit No.CC/AB/94/87.

It is difficult to understand the position of the Appellant, when he alleged none pleading of the principle of estoppels or resjudicata by the Respondent. As rightly stated by the Respondent’s Counsel, the Records of Appeal, in particular, the Amended statement of

defence of the Defendant (Respondent) on page 145-147 of the Records, clearly, illustrated the plea of the previous judgment in CC/AB/94/87, and how the same created estoppel in respect of the land in dispute. And in his Notice of Counter-claim the Respondent, specifically, pleaded and claimed, as follows;
(4) ”A Declaration that the plaintiff being privy to the said judgment of the Customary Court in Suit No. CC/AB/94/87; Sunday Adikwu V. Chukwuemeka Enwereji, is estopped from bringing this suit and is bound by the said judgment. See page 140 to 141 of the Records.

Also, in Paragraphs 32 and 33 of the Amended statement of defence, Respondent pleaded, as follows:
(32) However sometime in 1987, out of envy and hatred for the success of Defendant, Sunday Adikwu (Late) seeing that he was the only surviving and oldest son of Adikwu ganged up with the plaintiff and his brother and brought an action against the Defendant on record to the knowledge of the plaintiff on record at the Customary Court, Aba-na Ohazu in Suit No. CC/AB/94/87, Sunday Adikwu V. Chukwuemeka Enwereji, claiming a declaration of title over the land in dispute

which they purportedly called Okpulo Adikwu, in junction restraining the Defendant from further entry into the said land and of N500.00 and damages. A copy of the summons is hereby pleaded
(33) During the hearing at the Customary Court, the elder brother to the plaintiff on record, Israel Adikwu, actively participated and testified for the said Sunday Adikwu as PW3. Elijah Ekpem, one of the Village heads that granted the land in dispute to the Defendants father testified for the Defendant as DW4, to the effect that the entire land called Emwerejis compound included the land in dispute and that it belongs to the Defendant. After the full hearing of the case, including a visit to the locus in quo, the Honourable Court delivered judgment on 30/6/1988. In its judgment the Honourable Court found that the entire compound, including the Ama belongs to the late Enwereji Adikwu, the Defendants father. The Court equally found that the Claimant (Sunday Adikwu) has neither any legal right, traditional or customary claim over any part of the compound and the Ama, including the land in dispute. The Court

therefore dismissed the claim and struck out the suit with cost, which cost the claimant (Sunday Adikwu) promptly paid to the Defendant. Nobody appealed against the said judgment, till date. (Pages 138 – 139 of the Records.

The Respondent also pleaded in Paragraphs 34 and 35 as follows:
“(34) Prior to the Suit at the a Customary Court, the said Sunday Adikwu, in concert with the plaintiff and his brothers, summoned the Defendant before several arbitration panels, namely; The Okonko Society, Ndi Okene and Archidecon Uju Obinya, before he was made the Bishop of Ukwa diocese. All the arbitration panels found in favour of the Defendant.
(35) Following the said judgment of the Customary Court, Israel Adikwu never again challenged, disturbed or questioned the Defendants ownership of the compound and the Ama Enwereji, or any of Enwereji’s Compound, including the land in dispute See pages 139 and 18-19 of the Records of Appeal).

I decided to reproduce the above paragraphs of the pleadings of the Respondent, to show how he made the case and judgment in CC/AB/94/87 an issue and thereby pleaded that judgment as

estoppels.

Appellant cannot therefore be right to say that the Respondent did not plead resjudicata in his statement of defence. In any case, by Section 174 (1) (2) of the Evidence Act, 2011, even where the previous judgment is not expressly pleaded, by way of estoppels, it can still be deemed to be relevant and applicable, where the previous suit was between the same parties in the present suit, or their privies as they were expected to have had adequate knowledge of the said suit, which they remain also bound.

Incidentally, I looked through the Records to see if or where the Appellant denied the Respondents pleadings in Paragraphs 32 to 35 of the Amended Statement of defence and the Counter claim, especially to the effect that the Appellant herein and his brother Israel Adikwu were actively involved the Suit, CC/AB/94/87, taken out by then plaintiff: Sunday Adikwu. I found none.

Appellant cannot, therefore, deny being bound by the decision in CC/AB/94/87, as a privy to the suit, or one who stood by, fully aware of the proceedings thereof and therefore bound by the decision, especially as the said Sunday Adikwu had claimed the property as an

entitlement of the father of the parties, Adikwu, that it devolved on all his children, including him (Sunday) and his brothers parents of the Appellant and Respondent! One is not bound as privy to a previous decision, only by reason of blood relationship, as he can be privy by law or estate, as in this case. See the case of Igwego V. Ezeugo (1992) 6 NWLR (pt.249).

I hold that the plea of resjudicata or estoppels, was duly and properly made and raised by the Respondents in this case, before he brought the preliminary objection to the trial on the issue of lack of jurisdiction by the trial Court to entertain the suit, upon the plea of resjudicata.

The Respondent had pleaded in Paragraph 43 and 44 of the Amended Statement of defence, as follows:
(43) Defendant shall before the hearing of this suit, bring a formal preliminary objection urging the Court to dismiss this suit on the ground that the suit, as constituted, is an abuse of Court process, the subject matter having become res-judicata by virtue of the subsisting Customary Court judgment in favour of the Defendant.
(44) The plaintiff lacks the locus standi to bring

this suit and is estopped paremjudicatum, from bringing this suit or relying on the purported null and void decision of the Eze in Council.

Of course, the Respondent filed the said formal preliminary objection on 14/7/2010, which the trial Court considered and gave decision and struck out the plaintiffs (Appellant) claim.

In the Motion on Notice, the Applicant (Respondent herein) had sought:
An order striking out/dismissing the claim of the claimant in this suit A/224/08 for lack of jurisdiction and abuse of the Court process.
Take Further Notice that the grounds upon which this application is brought are as follows:
(1) The final judgment delivered by the Customary Court Ab Na Ohazu, in suit No.CC/AB/94/87: Sunday Adikwu V. Chukwuemeka Enwereji on 30/6/1988 operates as estoppels resjudicata and issue estoppels in favour of the Defendant/Appellant against the Claimant/Respondent.
(2) The Honourable Court thus lacks the jurisdiction to entertain this suit in the circumstance.” (See page 149 of the Records)

The trial Court had ordered parties to file written addresses to the

application, and after hearing the application and considering the addresses of Counsel, held:
based on all the consideration above, and the relevant judicial authorities cited above, the claimant, Chiadighikaobi Adiukwu, being a privy to the Customary Court Suit/judgment in CC/AB/94/87, is caught up by the doctrine of estoppels per rem judicata. He cannot be seen as re-litigating on the very issues and subject matter already dealt with by Customary Court in their final judgment, same being a Court of competent jurisdiction. I further hold that by the same doctrine, this honourable Court lacks jurisdiction to entertain the suit as constituted. In the circumstance, therefore, the present suit No. A/224/2008 hereby stands dismissed in its entirely. (page 214 of the Records).

Before reading the above conclusion, the trial Court took, time to analyse and compare the claims, subject matters in dispute, parties and issues in the two cases Suit No. CC/AB/94/87 and suit No. A/224/2008 and came to the conclusion that they were the same. It said:
That being said, the Honourable Court meticulously went through the

claims, the Customary Court as well as the content of the reliefs and statement of claim in the present substantive suit: vis-a-vis, the conditions laid out by learned Counsel on both sides for a successful plea of estoppels per resjudicata, and in addition the Honourable Court gave, due consideration to the arguments and submissions of the respective learned Counsel, together with the cited judicial authorities. The first observation is that a look at the claims/reliefs sought by the claimant in the two suits as earlier set out by this Honourable Court in this ruling/Judgment would show that they were suing in respect of the same subject matter viz: Okpulor Adikwu, situate at Amaufuru Village in Aba South L.G.A. Again the 2 claimant sued for damages, for trespass and also for perpetual injunction against the Defendant and his agents, privies and whosoever that is connected to him, howsoever. Furthermore, records of proceedings in the former, Customary Court, case as well as the Claimants claim in the substantive suit before me, showed clearly that the man SUNDAY ADIUKWU, who sued the present Defendant – JOHN CHUKWUEMEKA ENWEREJI, is the

paternal uncle to both the present claimant Chiadighikaobi Adiukwu and the Defendant, Chukwuemeka Enwereji: the said Sunday Adiukwu being a brother of full blood to the respective late fathers of the parties in this present substantive suit. Moreover, the records showed that the present Claimants direct brother of same blood, by name, Israel Adiukwu, testified in favour of SUNDAY ADIUKWU as the PW3, in the proceeding at the Customary Court. Yet all the facts they adduced, including the fact of the respective fathers of the present parties before me and the said Sunday Adiukwu having to fulfill the customary rites before the compound or dwelling place was given to them, were all found to be false by the said Customary Court. It would be recalled that the Lower Court even took the pains to go on a visit to the locus in quo and they made their findings and gave their judgment accordingly, wherein they ruled that it was only the father of the Defendant that fulfilled the traditional rites and was granted the dwelling place or compound to live with his children and relations. That, indeed, he was the one who established the dwelling place, and as such, the

rightful owner of the Ama i.e. the entrance to the compound. (See page 212 of the Records).
(Underlining Mine).

Of course, Appellant never faulted those findings of the trial Court, relating to establishment of the conditions to found the doctrine of estoppels per rem judicata in the two cases, and I think, the findings are unassailable, especially when considering and comparing the claims of the Appellant in this case with that of the Customary Court and the judgment of that Court (Customary Court).

On page 190 – 191 of the Records the Customary Court held:
From the facts before this Court, it is in evidence that the oldest man who established the dwelling place (Compound) is late Enwereji Adiukwu, the father of the defendant. It is also in evidence that late Enwereji Adikwu performed the necessary traditional rites for the granting of right occupying (sic) to that parcel of land according to Amaufuru Village native law and relations. It is also in evidence that during the time of negotiation for the land with the elders and leaders of Amaufuru Village for the acquisition of the dwelling place, the plaintiff

was not there, he was living at Umuagbaghi village in Chief Ogunka’s house. It is also in evidence that Ama or avenue or entrance leading into the compound is demarcated on both side with rows or raffia palms and that the Ama is by tradition, the property of the owner of the compound, in the (sic) respect, it belongs to late Enwereji Adikwu, the father of the defendant.
From the visit of the locus in Quo conducted by the Court members, it is discovered that the building which is the subject matter of this action, is located in a section of the Ama. It does not extend far into the Ama so as to block it from being a free passage. It takes the time of one old uncompleted central sitting room OVU, started by late Enwereji Adikwu himself, which as the Court was rightly informed during the trial of this action, that nobody living in the compound has ever challenged its erection there.
If the Ama is covered in any way to the detriment of the occupiers of the compound, it will be the joint responsibility of all the adult males in the compound to challenge whoever that

does so. In this issue there is no such an encroachmentFrom the foregoing Court is satisfied that no trespass has been committed by the defendant against the plaintiff, that the plaintiff neither any legal right not Traditional or Customary claim over the Ama/Avenue entrance to the compound The Suit is therefore struck out with N30.00 cost

The claims before that Court (Customary Court were:
“(1) Declaration of Customary Right of Occupancy to that piece or parcel or parcel of land known as and called Okpulor Adiukwu situate at Amaufuru Village in Ohazu, Aba
(2) N500= general damages for trespass
(3) Perpetual injunction restraining the agents from further entry into the said land. (page 210 of the Records).

I had earlier reproduced the reliefs sought in this case (A/224/2008) by the Appellant, which are the same as the above, in respect of the same land, claimed by an off spring of the same plaintiff (i.e. plaintiffs nephew), who actively took part in the first claim, and was privy to the said first claim.

It should, however, be acknowledged that, whereas the

Customary Court Suit sought N500 as damages for trespass, this present suit sought five million Naira (N5,000,000.00) and that in the present suit, the plaintiff also sought an order that the Defendant has no right to close the entrance to the to the compound under litigation.

As rightly observed and held by the Lower Court, I think the fact that the Customary Court said: The Suit is therefore struck out… instead, of saying the suit is dismissed, would not discount from the fact that the Customary Court case was heard to conclusion, on the merits, and a final judgment entered. The Customary Court, as the Lower Court said, was manned by non-lawyers, who were not in a position to appreciate the legal implication of saying suit struck out as opposed to Suit dismissed, that to them (Customary Court) such phrases were/are useable, interchangeably, as a matter of semantics. I agree that it takes the superior or appellate Court, versed in the nonuces of the law, to ascribed the appropriate meaning to such phrases, upon considering the full decision of the Customary Court, and deciphering the import of the

use any of phrase or expression.

I cannot, therefore, fault the findings of the Lower Court, that Appellants claim was caught by the doctrine of estoppels per rem judicatum, the issues and subject matter, having been determined conclusively, between the parties, by a competent Court, in its final judgment in the Suit No. CC/AB/94/87, on 30/6/1988. And that suit having not been appealed against is extant. The Appellants suit A/224/2008, therefore, amounted to a gross abuse of the Court process and was properly dismissed.

This appeal is therefore without merit and is hereby dismissed, with Fifty Thousand Naira (N50.000.00) cost to the Respondent, against the Appellant.

IGNATIUS IGWE AGUBE, J.C.A.: I have the privilege of reading in advance the judgment just delivered by My Learned brother I. G. MBABA, I agree with his reasoning and conclusions that the Appeal is without merit and is hereby dismissed by me. I endorse the consequential order contained in the said judgment.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my

learned Brother, ITA GEORGE MBABA, JCA and I am in total agreement with his well written judgment such that I have nothing more to add. I agree that the Appeal lacks merit and it is accordingly dismissed with cost of N50,000.00 against Appellant.

Appearances:

I. A. Nwabudogu Esq. For Appellant(s)

F. I. Aniukwu Esq. For Respondent(s)

Appearances

I. A. Nwabudogu Esq. For Appellant

AND

F. I. Aniukwu Esq. For Respondent