CHIEF MADUWUBA ORODOEGBULAM v. NZE DONATUS ORODOEGBULAM (2013)

CHIEF MADUWUBA ORODOEGBULAM v. NZE DONATUS ORODOEGBULAM

(2013)LCN/6039(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 20th day of March, 2013

CA/OW/94/2009

RATIO

PLEADINGS: DEFINITION OF A PLEADING

According to Black’s Law Dictionary 9th Edition at page 1270, pleading is defined as follows:
“a formal document in which a party to legal proceeding (esp. a civil law suit) sets forth or responds to allegations, claims, denials or defences.”PER JOHN INYANG OKORO, J.C.A

PLEADINGS: NATURE AND GOALS
In a nutshell, pleadings consist of the plaintiff’s complaint and the defendants answer. The goals or the importance of pleadings in the judicial process have been well articulated over the years. In SYLVESTER EZEPELECHI UKAEGBU & ORS v. DURU ONNONANWA UGOJI & ORS (1991) 6 MLR (Pt. 196) 127, the Supreme Court stated these goals of pleading to include the following:
1. To ascertain to both parties the issues between them and to enable each other prepare to meet the issue.
2. It enables the court to determine the scope and limits of the issues to be tried and to determine the nature and mode of the trial.
3. To eliminate the element of surprise.
4. It limits the scope of the evidence that can be adduced during the trial
5. Parties are bound strictly by, and are not allowed to depart from their pleadings.
See also OGIAMIEN v. OGIAMIEN (1967) NWLR 245; NIPC LTD. v. THOMSON ORGANISATION LTD. (1969) NWLR 99 and AMERICAN CYANAMID COMPANY v. VITALITY PHARMACEUTICALS LTD (1991) 2 SC 47, (1999) 2 NWLR (Pt. 171) 15.PER JOHN INYANG OKORO, J.C.A

PLEADING: THE MAIN FUNCTION OF PLEADINGS

It is now well settled that the main function of pleadings in litigation made up of the statement of claim of the plaintiff and the statement of defence of the defendant is to enable the parties ascertain as much as possible the various matters actually in dispute and in which there is agreement. Generally, as parties are bound by their pleadings, they are under a burden to establish by evidence their claim and counter claim (if any) to the issues joined. See YAKEEM ALABI ODONIGI v. AILERU OYELEKE (2001) 6 NWLR (Pt. 708) 12; ATANDA v. AJANI (1939) 3 NWLR (Pt. 11) 511; AGU v. IKEWIBE (1991) 3 NWLR (Pt. 180) 385.PER JOHN INYANG OKORO, J.C.A

PLEADINGS: EFFECT OF FAILURE OF A PARTY TO ADDUCE EVIDENCE IN SUPPORT OF HIS AVERMENTS IN THE PLEADINGS

Where a party fails to adduce evidence in support of his averments in the pleadings, such averments are deemed abandoned. This is so because averments are not evidence. See SUARA YUSUF v. OLADEPO OYETUNDE & ORS (1998) 12 NWLR (Pt. 579) 1, (1993) 9-10 SC 123; OMOBORIOWO v. AJASIN (1984) 1 SC 205.PER JOHN INYANG OKORO, J.C.A

PLEADINGS: WHERE THERE IS NO NEED FOR FURTHER PROOF OF AVERMENTS IN PLEADINGS

JUSTICES

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

PHILOMENA EKPE Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

Between

CHIEF MADUWUBA ORODOEGBULAM Appellant(s)

AND

NZE DONATUS ORODOEGBULAM
(suing by his attorney Eunam Orodoegbulam) Respondent(s)

JOHN INYANG OKORO, J.C.A (Delivering the Leading Judgment): The Respondent herein, on 21st March, 1994 filed Suit No. HOW/104/94 claiming exclusive ownership of the property known as and called No. 62/63 Royce Road, Owerri, now renumbered as No. 57/63 Royce Road, Owerri. He also claimed accounts for rents and an order of injunction. Pleadings were exchanged and parties testified in response to the facts pleaded. The Appellant herein was the defendant in that case, while the Respondent in this appeal was the plaintiff. At the end of the hearing and after considering the submission of both counsel, the trial court found and held that the land in dispute was jointly owned by both the Appellant and Respondent herein. That judgment which can be found on pages 42 – 45 of the record was delivered on the 26th day of September, 2006 by the then Chief Judge of Imo State, Hon. Justice P. C. Onumajulu. That judgment is subsisting as there is no evidence that any of the parties had appealed against the said decision.
Based on the judgment in suit No. HOW/104/94 alluded to above, the Respondent in conjunction with family members made several efforts to partition the land since the Appellant and Respondent herein could not jointly manage the property without acrimony and rancour but it proved abortive. Consequent upon this inability to partition the property, the Respondent then approached the High Court in Suit No. HOW/143/2007 (the suit giving birth to the instant appeal) for an order partitioning the said property between the parties herein based on the decision of the court in Suit No HOW/104/94.
Upon receipt of the Statement of Claim, the Appellant (as defendant) filed his statement of defence and counter claim and included facts in a bid to relitigate the facts and issues already determined by the lower court in Suit No HOW/104/94 which has not been appealed against.
At the hearing of the matter, the learned trial judge, after PW1 had testified and cross-examined, and the Appellant as DW1 started to give evidence, told both parties and their counsel that the matter was straight forward and that since there was no appeal against the findings and decision of the High Court in Suit No HOW/104/94 that ownership of the property resided on both the Appellant and the Respondent, he would discontinue and discountenance oral evidence already led and determine the matter on the pleadings of the parties. He then ordered both counsel to put in their written addresses. It is on record that both counsels were in court on that date. However, only the learned counsel for the Respondent herein, filed a written address. Counsel for the Appellant failed and/or neglected to file his written address.
The trial court, after a consideration of the pleadings of the parties and the judgment of the learned trial Chief Judge in Suit No. HOW/104/94 found for the Respondent and ordered partition of the land adjudged by the court as jointly owned by the parties to this appeal. Dissatisfied with the judgment of the court below, given on 3rd December, 2008, the Appellant filed Notice of Appeal on 11th December, 2008 which said notice has three grounds of appeal. From the three grounds, the Appellant has distilled two issues for determination which issues are contained on page three of the Appellant’s brief of argument adopted by learned counsel for the Appellant Chief I. A. Onyeama on 29th January 2013 when this appeal was heard. The issues are as follows:
“a. Was there a hearing in this case to which the provisions of Section 36 of the Constitution of the Federal Republic of Nigeria can apply; and if so was the hearing in this case fair? (Grounds 2 and 3).
b. Based on the pleadings was the trial court right to have given judgment to the Plaintiff/Respondent in this case and is Defendant not entitled to judgment.”
In the brief settled by Ezeohiri Fred Njemanze Esq., Counsel for the Respondent, one issue is formulated which states:
“Whether the lower court was right in the procedure adopted to arrive at his judgment in this matter.”
After reading the pleadings and the judgment of the lower court vis-a -vis the grounds contained in the notice of appeal, it appears to me that the lone issue formulated by the Respondent which to my mind, encapsulates the two issues distilled by the appellant is more germane and apt for the determination of this appeal. I shall therefore determine this appeal based on the said single issue.
It is the submission of the Appellant through his counsel that when the pleadings in the case were filed and exchanged and issues joined on the pleadings and the PW1 having given evidence, there is a hearing to which the test of fairness under the constitution may be applied, relying on the case of DEDUWA v. OKORODUDU (1976) 9-10 SC at 353-354. According to learned counsel, the learned trial judge did not give the Appellant enough time to cross examine the Respondent and that there could not have been any re-examination when there was no full cross examination. That it was the learned trial judge who suo motu stopped the DW1 from continuing with his evidence and decided to determine the case on the pleadings.
It is the submission of learned counsel that he does not quarrel against the court deciding suo motu to determine the case based on the pleadings but that the said decision should have been taken at the time issues were joined on the pleadings and before PW1 started to give evidence. It is his further contention that the learned trial judge ought to have invited comments from both counsel. This failure, according to him, shows a strong likelihood of bias against the Appellant herein. He submitted further that any reasonable man who was in court from 28/4/2008 when PW1 started his evidence up to 13th October, 2008 when the appellant attempted to cross examine him and the attempted defence by the Appellant on 29th October, 08, would conclude that justice in this case was flying on one wing in favour of the Respondent.
Learned counsel argued that the admission of the existence of judgment of the learned trial chief Judge in HOW/104/94 or the finding thereon does not amount to the admission of the title of the Respondent in the land in dispute of which the Respondent asked for partition. It is his view that a party ought not to be precluded from putting across his case in full no matter how had, citing the case of CHEVRON (NIG) LTD v. LONE STAR DRILLING LTD (2007) 7 NWLR (Pt.243) 3437 at 3450. Learned counsel opined that a close look at the conduct of the learned trial judge shows he had made up his mind against the Appellant and dished out one sided justice which he submitted is no justice at all, relying on the cases of WILLOUGHBY v. INTERNATIONAL MERCHANT BANK LTD (1987) 1 NWLR (Pt.48) 105 at 131.
In his further submission, learned counsel for the appellant argued that assuming, without conceding that the trial court could suo motu determine the case based on the pleadings of the parties, the evidence in the Appellant’s statement of defence, counter-claim and plan outweighs that of the Respondent’s statement of claim and plan. Learned counsel faulted the decision of the learned trial judge when he held at page 79 lines 10-12 of the record that:
“The judgment in Suit No HOW/104/94 specifically decided that the land in dispute is jointly owned by both the Plaintiff and the Defendant”
Learned counsel then reviewed the evidence in HOW/104/94 and came to the conclusion that since the Respondent herein was non-suited in respect of claim for declaration of statutory right of occupancy, the parties herein have the right to file another suit on the matter. Learned counsel also argued that the Appellant had a right to file a new plan to prove the identity of the land in dispute. He opined that findings of court do not constitute one of the modes of proving ownership of land, citing IDUNDUN v. OKUMAGBA (1976) SC 227 at 246-251. According to him the root of title of the land sought to be partitioned cannot lie in the finding of the court in HOW/104/94 but by production of document of title.
Arguing further, learned counsel submitted that the court below held that the land is jointly owned because the Appellant herein did not file his plan. That having filed a plan in the present case, the decision should be different. He urged the court to resolve the issue in favour of the Appellant.
In response, the learned counsel for the Respondent submitted that the appellant and his counsel having accepted the procedure of deciding the case on the pleadings, cannot turn round on appeal to challenge the procedure, citing the case of AKHIHU v. THE PRINCIPAL LOTTERIES OFFICERS, MID-WESTERN STATE (1969) 1 ALL NLR 426. He further submitted that the court need not take evidence if the whole case could be decided on the pleadings without calling on evidence, placing reliance on ACB PLC v. OBMIAMI BRICK & STONES COMPANY LTD (1993) 5 NWLR (Pt.294) 299; MILLS v. RENNER (1940) 6 WACA 144 at 145; BUNGE v. GOVERNOR OF RIVERS STATE (2006) 141 LRCN 2227 at 2252. According to learned counsel, by the pleading of the parties, it was admitted that the subject matter of the suit was adjudicated upon in Suit No. HOW/104/94 between the same parties referring to Paragraphs 3, 4, and 5 of the statement of claim on pages 4-5 of the record and Paragraphs 4, 6 and 9 of the statement of defence on page 9-10 of the record. That in the judgment in suit No. HOW/104/94., the court held that the land in dispute is jointly owned by both parties and none of them has appealed against the said judgment. Learned counsel pointed out that all the facts pleaded in the statement of defence and counter claim were facts which the learned trial judge in Suit No. HOW/104/94 made findings and conclusions as admitted in Paragraph 6 of the statement of defence.
Furthermore, he argued that since the Appellant did not file any plan and relied on the Respondent’s plan in Suit No. HOW/104/94, as the location, boundaries, extent and features as represented therein, he is estopped from starting afresh in the present case to challenge the extent, features and boundaries of the land, citing OBI v. OZO (1991) 9 NWLR (PT. 213) 94; EJILEME v. OPARA (1988) 9 NWLR (Pt.567) and DIBIA v. TUBONIMI (2010) AII FWLR (PT. 546) 583 at 598.
In his further argument, learned counsel submitted that the decision or findings of fact made in suit No. HOW/104/94 that the land in dispute is jointly owned by the Appellant and Respondent creates issue estoppel between the parties and the decision is binding on both parties, referring to the cases of OGBOGU v. UGWUEGBU (2003) FWLR (Pt. 161) 1825; ADEBAYO v. BABALOLA (1995) 75 SCNJ 306.
On the issue of lack of fair hearing, learned counsel submitted that it is not correct that the learned trial judge decided suo motu to determine the case on the pleadings as the evidence of Pw1 was discountenanced by the trial judge and was never used by the lower court in its consideration of the matter. It is his submission that the procedure used by the lower court is legally permissible and did not constitute a breach of the rules of fair hearing.
Finally, he submitted that it is preposterous for the Appellant to submit that the identity of the land in dispute was in issue in the present case since they adopted the plan filed by the Respondent in Suit No. HOW/104/94. It is his contention that where a plaintiff tendered in evidence a survey plan of the land in dispute and is admitted in evidence without objection and the defendant failed to file a counter plan, the defendant cannot be heard to contend that the plaintiff did not prove with certainty the boundaries of the land, citing the case of ADEPOJU v. OKE (1999) 3 NWLR (Pt. 594) 154 at 165. Again, that the issue of the plan relating to the native court case No. 83/62 was held by the lower court in HOW/104/94 not to have any connection with the land in dispute. He urged this court to resolve this issue against the Appellant.
The task in this appeal is to determine whether the lower court was right in the procedure adopted to arrive at its judgment and whether based on the pleadings, judgment was rightly entered for the Respondent herein.
According to Black’s Law Dictionary 9th Edition at page 1270, pleading is defined as follows:
“a formal document in which a party to legal proceeding (esp. a civil law suit) sets forth or responds to allegations, claims, denials or defences.”
In a nutshell, pleadings consist of the plaintiff’s complaint and the defendants answer. The goals or the importance of pleadings in the judicial process have been well articulated over the years. In SYLVESTER EZEPELECHI UKAEGBU & ORS v. DURU ONNONANWA UGOJI & ORS (1991) 6 MLR (Pt. 196) 127, the Supreme Court stated these goals of pleading to include the following:
1. To ascertain to both parties the issues between them and to enable each other prepare to meet the issue.
2. It enables the court to determine the scope and limits of the issues to be tried and to determine the nature and mode of the trial.
3. To eliminate the element of surprise.
4. It limits the scope of the evidence that can be adduced during the trial
5. Parties are bound strictly by, and are not allowed to depart from their pleadings.
See also OGIAMIEN v. OGIAMIEN (1967) NWLR 245; NIPC LTD. v. THOMSON ORGANISATION LTD. (1969) NWLR 99 and AMERICAN CYANAMID COMPANY v. VITALITY PHARMACEUTICALS LTD (1991) 2 SC 47, (1999) 2 NWLR (Pt. 171) 15.

Although parties are required to lead evidence to prove averments in their pleadings, where however, facts averred by the plaintiff are admitted in the defendant’s statement of defence, such admitted facts require no further proof and the court is entitled to enter judgment on those facts admitted. There is no need to take evidence to prove what has been admitted. It is only where facts are disputed that evidence is required to be led in proof thereof. The Apex court has however held that to be able to decide whether there was an admission in the pleadings of the respondent which could have entitled the plaintiff to the judgment of the court, one must look at the respondent’s pleadings as a whole and not just consider each paragraph in isolation. See CHIEF G. A. TITILOYE & ORS v. CHIEF J. OMONIYI & ORS (1991) 7 NWLR (pt. 205) 519 (1991) 9-10 SCNJ 122. It is after the court is satisfied that the defendant has clearly admitted the facts which the right of the plaintiff is hinged that it can enter judgment for the plaintiff on the pleadings. This was the decision of the Supreme Court in MOSES DUNGE & ANOR v. THE GOVERNOR OF RIVERS STATE (2006) 141 LRCN 2227 at 2252 wherein the Apex Court stated as follows:
“It is often the case that parties assume that when a suit is filed in court and parties have exchanged pleadings, further progress in the matter must at all events be determined by evidence to be called. The correct position is that whether or not it is necessary to call evidence must be dependent on the state of the pleadings. Where a plaintiff has pleaded facts upon which his right in dispute in the suit hinges and the Defendant admits those facts, it is not in such a case necessary for any evidence to be called and the court would be entitled to give judgment on the pleadings. When a fact is pleaded by the plaintiff and admitted by the Defendant, evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact which is admitted.”
See also ACB PLC v. OBMIAMI BRICK AND STONES NIG. LTD. (1993) 5 NWLR (Pt. 294) 299; MILLS v. RENNER (1940) 6 WACA 144 at 145. In fact in MILLS v. RENNER (supra), cited with approval in ACB PLC v. OBMIAMI BRICK and STONES NIG LTD (supra) it was held that:
“It would be manifestly absurd to suggest that a court was bound to proceed with the taking of evidence of the parties to a suit where it appeared that the whole suit could be decided upon their pleadings without any evidence being called”
From all I have labored to say above, it can be seen clearly that the learned trial judge in the instant case did not originate the procedure of entering judgment on the pleadings but followed this principle which has been approved by the Apex Court. I shall now consider the peculiar situation in the instant case.
One thing which is very clear and admitted by both parties in their pleadings is that this is not the first time the Appellant and the Respondent are before the court in respect of the properly called No 62/63 Royce Road, Owerri. They have both admitted in their pleadings that in 1994, they were in court in Suit No. HOW/104/94 which judgment was delivered in the High Court on 26th September, 2006 between NZE DONATUS ORODOEGBULAM v. CHIEF MADUWUBA ORODOEGBULAM, the present parties in the instant appeal. The said judgment tendered as exhibit A at the court below is on page 42 of the record of appeal. In that case, the Respondent herein had asked that he be declared the exclusive owner of the property, account for rent and injunction. The Appellant in that case had also asked the court to declare him as owner alleging that his brother, although they jointly bought the properly, had lost interest and relied on exhibit ‘J’ therein. At the end, the learned trial chief Judge held as to the issue of ownership as follows:
“Plaintiff’s counsel had relied on Exhibit C, D and E to show exclusive ownership. I am afraid those exhibits cannot override the clear, unambiguous and far-reaching contents of Exhibit ‘B’ which was tendered by the plaintiff himself. Besides, if the plaintiff is the exclusive owner by purchase of the land in dispute, why did he according to him, accept the decision of the arbitrator that the property in dispute be partitioned between him and the defendant who, for him, is not a co-owner of the property. His explanation that he so accepted because defendant is his brother does not impress me.
On the other hand the defendant claimed that when the interest of Ohasiegbula in the land failed by virtue of Exhibit ‘J’, he renegotiated with Oparaku who was alleged to have won the case in court and took a leasehold interest of the land from Oparaku but I have already held in my resolution of the second issue herein that the defendant did not establish that Exhibit ‘J’ related to the land in dispute. Therefore the plea of exclusive interest through Oparaku fails. Exhibit G and H tendered by the defendant to show exclusive title are therefore of no moment in this case. The finding I therefore make is that neither the plaintiff nor the defendant has exclusive interest over the land in dispute. On the pleading and evidence before me, I am satisfied and I find that both plaintiff and the defendant own the land in dispute jointly.” (emphasis mine)
As regards the issue of identity of the land in dispute, the learned trial judge held on page 49 of the record (page 8 of the judgment in HOW/104/94 as follows:
“By paragraphs 4 and 5 of the Statement of Claim, the plaintiff pleaded the extent and dimensions of the land in dispute as well as a plan depicting it which he called No. 62/63 Royce Road. No. 62 part of the land was pleaded as having been changed to No 57. The defendant in paragraphs 1 and 2 of his statement of defence, admitted those averments. The plaintiff also tendered, without objection the plan of the land in dispute as Exhibit A. The defendant did not file any counter plan. This scenario thus concludes the identity of the land in dispute which is, therefore, not in issue.”
As admitted by both parties in this case, none of them has appealed against the above findings and conclusions in HOW/104/94 of 26/9/06. I need to emphasize here that the said judgment is subsisting and binding on the parties in respect of issues raised and determined by the trial court until it is set aside on appeal which is not the case here.
The point must be made clear that after the decision in How/104/95, the Respondent herein accepted the decision of the court below even though it was against him. He made effort to partition the properly since it was not possible to jointly operate the properly with his brother. The Appellant herein rebuffed. This gave rise to the present suit which has given birth to this appeal. Principally, the Respondent as plaintiff had asked the court for an order to partition the property. The Appellant herein saw it as an opportunity to relitigate the issues already settled and decided in HOW/104/95. The Appellant herein, after admitting the existence of the judgment in HOW/104/95, went ahead to ask that he be declared the sole owner of the property, brought up again the issue of the boundary of the land by filing a new survey plan and also brought up the issue of Exhibit ‘J’ and Mr. Oparaku all already decided by the learned trial chief Judge in HOW104/95. Let me state emphatically that no reasonable tribunal or court will allow any party before it to drag it into a thick forest which would require real efforts to come out and which would leave serious wounds on it which may be difficult to heal. For me, I hold that the court below was right to refuse to be toyed with by a litigant who, after accepting the earlier decision of the High Court, however fails to obey it but whishes to waste the court’s precious time by relitigating the issue properly decided by that court. Having gone through this road before, the Appellant estopped from going through it again with the same method and purpose mind. In TUNDE OSUNRINDE & ORS v. MUTAIRU TOGUN AJAMOGUN & ORS (1992) 7 SCNJ 79, the Apex court held that where a court of competent jurisdiction has settled, by a final decision, the matters in dispute, between the parties, neither party or his privy may re-litigate the issue again by bringing a fresh action. The mater is said to be res judicata.
It was also held that the estoppel created is one by record inter pares. There are two kinds of this estoppel. The first is called cause of action estoppel while the second is known as issue estoppel. See also NWOPARA OGBOGU & ORS v. NWONUMA NDIRIBE & ORS (1992) 6 SCNJ 301; FADIORA v. GBADEBO (1978) 3 SC 219. In the instant case, I admire the way the learned trial judge examined the judgment in HOW/104/94 vis-a-vis the pleadings of the parties in the present suit. By so doing, he brought out clearly the issues settled in HOW/104/94 and the issues sought to be re-litigated in the present suit. In ADEPOJU v. OKE (1999) 3 NWLR (Pt 594) 154 at 165, the Supreme Court held that in a land suit as in this case, where the plaintiff tendered in evidence a survey plan of the land in dispute which was admitted in evidence without objection and the defendant failed to file a counter-plan, exactly as in the instant case, the defendant cannot be heard to contend that the plaintiff did not prove with certainty the boundaries of the land in dispute. It is more often than not that within a cause of action, there may be several issues raised which are necessary for the determination of the whole cause of action. If one such issue has been raised and distinctively determined between the parties, then as a general rule, neither party is allowed to contest the issue all over again. See ADEBAYO v. BABALOLA (1995) 75 SCNJ 306.
The Appellant had complained that the learned trial judge decided suo motu to give judgment on the pleadings without any inpute from counsel. With due respect, this is not correct. The learned trial judge ordered both counsel to file written addresses but only the counsel for the Respondent filed his address. Counsel for the Appellant who was in court on the date the order was made failed and/or neglected to file the said address. It is therefore inappropriate for counsel to argue that the learned trial judge acted suo motu. Even if he acted suo motu to determine the case on the pleadings, he had asked counsel to file written addresses on the issue. That was an opportunity for counsel to object the procedure if he wished. To keep quiet, only to raise it in this court, is inappropriate. It is my well considered opinion that the learned trial judge was right not to allow the Appellant to relitigate issues already settled in HOW/104/94 and to have ordered partitioning of the property based on the decision of the subsisting and binding judgment in HOW/104/94. To hold otherwise would be to open the flood gate of litigation for parties who wish to abandon a duly entered judgment and relitigate issues merely because they do not agree with the earlier judgment. This would be against public policy. There must be an end to litigation. No court will stand by and watch its decision trampled upon only to be asked to make fresh pronouncement on the same issues already decided. The order of the lower court that the property adjudged jointly owned by the parties herein be partitioned cannot be faulted in any material particular. The fact that the court below jettisoned evidence already taken before adopting to give judgment on the pleadings is commendable. Although the Appellant cried that he was not given fair hearing, it is of no moment as the judgment in HOW/104/94 used by the trial court could have been tendered from the bar and being the judgment of that court, the court was bound to take judicial notice of same.
On the whole, I hold that this appeal has no of merit at all and is hereby dismissed. I uphold the judgment of the lower court delivered on 3rd December, 2008. In view of the fact that the Appellant and Respondent are blood brothers, I make no order as to costs.

PHILOMENA MBUA EKPE, J.C.A: I have before now been opportune to read the lead judgment of my learned brother JOHN I. OKORO, JCA, and there is no reason why I should differ from the position he has taken in finding no merit in the appeal and dismissing it in its entirety. This appeal is hereby dismissed and the judgment of the lower court delivered on the 3rd day of December, 2008 is hereby affirmed. I abide by my Lord’s order as to costs.

HARUNA SIMON TSAMMANI, J.C.A: I had the advantage of reading in advance the judgment delivered by my Learned brother JOHN I. OKORO; JCA.
The pertinent issues that came up for determination were adequately considered and resolved by my learned brother. I agree entirely with his reasoning and conclusion that the appeal has no merit at all and that it be dismissed.
Clearly, the claim of the Respondent as Plaintiff before the Court below was for an order partitioning the property in dispute between him and the Appellant, consequent upon an earlier judgment of the High Court in Suit No. HOW/104/94. Judgment in that case is to the effect that the land in dispute is jointly owned by the Appellant and Respondent. The Appellant never appealed against that judgment. That judgment subsists and therefore operates as res judicata See Section 173 of the Evidence Act 2011 and MADUKOLU v. NKEMDILIM (1962) 2 A.N.L.R. p.581 at 588; AGU v. IKEMBE (1991) 3 N.W.L.R (Pt. 180) p.385 at 412 and IYAYI v. EYIGEBE (1987) 3 NWLR (Pt.61) p. 523 at 533. There being such subsisting judgment, the appellant having had & go in his effort to claim exclusive title to the land without success, the law would not allow him to have another bite at the cherry. It has been determined that the land is jointly owned by him and the Respondent and having not appealed that decision, he is estopped from asserting the contrary. The Court below was therefore right in ordering for partitioning of the land in dispute.
On the whole, I agree totally with the judgment delivered by my learned brother, to the effect that this appeal has no merit. I also hold that this appeal is devoid of any merit. It has totally failed and is hereby dismissed. The judgment of the Court below is hereby affirmed.
I abide by the order on costs.

Appearances

K. M. Onyeama Esq.For Appellant

AND

C. H. Ajaere (Miss) (holding the brief of E. F. Njemanze Esq.)For Respondent