FRANCIS ALIKOR & ORS V. CHIEF O. N. NSIRIM
(2011)LCN/4658(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 28th day of June, 2011
CA/PH/90/2003
RATIO
FRESH ISSUE: WHETHER A PARTY MUST FIRST SEEK THE LEAVE OF COURT BEFORE HE CAN RAISE A NEW ISSUE ON APPEAL
It is trite law that before a new issue can be raised on appeal, the appellant must first seek the leave of court. See ELUGBE V. OMOKHAFE (2004) 18 NWLR (PT. 905) 319; OGUNSOLA v. NICON (1996) INWLR (PT. 423) 126; MARKE V. EKE (2004) 16 WRN 57 at 84. As the appellants failed to obtain leave of court issue 2 as formulated by the appellants is incompetent. It is accordingly struck out. PER TUNDE OYEBANJI AWOTOYE, J.C.A
PLEA OF ESTOPPEL: CONDITIONS THAT A PARTY RELYING ON A PLEA OF ESTOPPELS MUST PROVE TO SUCCEED
Now for a plea of estoppel to succeed a party relying on it must prove following:- (i) that the parties or their privies involved in both the previous and the proceedings in which the plea is raised are the same. (ii) that the issue in dispute in both proceedings are the same. (iii) that the subject matter in the two proceedings are the same. (iv) that the decision relied upon as creating estoppel is final and valid. (v) that the court that gave the decision relied upon was a court of competent jurisdiction. The burden is on the party who sets up the defence of estoppel to so prove. See OSHODI V. EYIFUNMI (2000) 75C (PT. II) 145; IGWEGO V. EZEUGO (1992) 6 NWLR (PT. 249) 561; ABUBAKAR V. BEBEJI OIL & ALLIED PROD. LTD (2008) 15 WRN 1 at 52. PER TUNDE OYEBANJI AWOTOYE, J.C.A
ESTOPPEL: WHETHER CAN BE EMPLOYED AS A SWORD BY A PLAINTIFF
Estoppel, though is generally a shield for the protection of a defendant, it can however sometimes be employed as a sword by a plaintiff. See ABULOGU V. SPDC (NIG) LTD [2003] 12 NWLR (PT 837) 308. PER TUNDE OYEBANJI AWOTOYE, J.C.A
RES JUDICATA: WHETHER A JUDGMENT OBTAINED AGAINST A PARTY IN HIS PERSONAL CAPACITY CAN CONSTITUTE RES JUDICATA IN AN ACTION AGAINST THE PARTY IN A REPRESENTATIVE CAPACITY
It should however be noted that a judgment obtained against a party in his personal capacity cannot constitute res judicata in an action against the party in a representative capacity” SEE OKUKUJE V. AKWIDO [2001] 1 WRN 1, UDEZE & ORS V. CHIDIE & ORS (1990) 1 NWLR (PT 125) 141. PER TUNDE OYEBANJI AWOTOYE, J.C.A
JUSTICES
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. FRANCIS ALIKOR
2. OKABIE WORGU
3. FRIDAY WORGU
4. WOPARA WORGU
5. GODFREY CHUKWU
(For themselves and as representing Rumuchida Family of Rumueme). Appellant(s)
AND
CHIEF O. N. NSIRIM Respondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A (Delivering the Leading Judgment): This is the appeal against the judgment of Rivers State High Court delivered on 14/01/2000.
The plaintiff now the Respondent in this appeal had claimed against the defendants as follows:-
“11. WHEREFORE Plaintiff claims as follows:
(1) A declaration that the Plaintiff is entitled to the statutory right of occupancy to all that piece of parcel of land, known as and called “EKWU MGBAKIRI” situate and lying at Rumueme along the Port Harcourt Owerri Road in Obio/Akpor Local Government Area of Rivers State.
(2) Perpetual injunction restraining the Defendants, their servants and agents and all that those claiming through them from interfering with the right of the plaintiff in an over the said land”.
The defendants in reaction filed statement of defence and counterclaimed against the plaintiff as follows:
“WHEREFORE the Defendants counter-claim against the plaintiff:
(i) A declaration that the Rumuchida village as represented by the Defendants in this suit are entitled to the statutory right of occupancy over the Elewu-Otuloro land excluding that part of it which was the subject-matter in suit No. PHC/81/71 but including the total area now trespassed upon by the Plaintiff.
(ii) An Order of Perpetual Injunction restraining the plaintiff his agents, servants and workmen howsoever from further trespassing on the Ekwu-Otuloro land”.
The learned trial judge later proceeded to give judgment after hearing the parties as follows.
“The final result is that the plaintiff is entitled to judgment, which I hereby enter in his favour and against the defendants. I hereby make the following declarations and orders:
1. It is hereby declared that the plaintiff is entitled to the statutory right of occupancy over that piece or parcel of land called “Ekwu Mgbakiri” which is shown and verged Blue on Survey Plan NO. AIA/R5331/91 LD of 16th May, 1991 tendered and marked Exhibit D1, situate at Rumueme along the Port Harcourt Owerri Road in Obio/Akpor Local Government Area of Rivers State.
2. The defendant, their servants and agents and all those claiming through them are hereby restrained by a perpetual order of injunction from interfering with the right of the plaintiff in and over the said land.
3. The defendant should pay the plaintiff N2, 000.00 cost for the plaintiff’s claims which succeeded, and N1, 000.00 cost for their counter-claim that was dismissed.”
The defendants being dissatisfied with the above decision filed this appeal on 10/3/2000.
After the record of appeal had been transmitted, parties exchanged briefs of argument.
In his brief learned counsel for the appellants formulated 3 issues for determination as follows: –
“(1) Whether the learned trial judge was right to enter judgment for the Respondent based on his reply to statement defence/counter claim which did not plead his root of title but based only an acts of ownership as against the appellants who pleaded their root of title and acts of ownership.
(2) Whether the learned trial judge was right to enter judgment for the plaintiff/respondent on his reply to statement of defence that was not filed.
(3) whether in this case, the learned trial judge was right by admitting in evidence the testimony of Jonathan Chukwu who testified in another suit (PHC/81/71) which is not between the parties as evidence against the Appellants by virtue of section 35 of the Evidence Act or even by section 34 of the same Act”.
On issue 1 learned counsel for the appellant submitted that in law the function of a reply was to meet new issues raised in the statement of defence and not to set up a new case. He cited AKINSANYA V. SOYEMI (1998) 8 NWLR (PT. 560) 49 at 55 – 58.
He submitted that evidence given on fact not pleaded went to no issue. He stated that paragraph 10 of the amended reply to the statement of defence and counterclaim relied upon by the court below conflicted with the evidence adduced.
He submitted that the Respondent did not plead his root of title to the land in dispute. He proceed further that paragraph 12 of the statement of defence constituted estoppel against the respondent who his failure to deny same in his reply had admitted that fact. He referred to section 151 of the Evidence Act. He added further that acts of ownership pleaded by the respondent were on admission of failure or absence of roof of title. He cited CARDOSO V. DANIEL (1986) 2 NWLR (PT. 20)1 at 43; DIN V. AFRICAN NEWSPAPERS OF NIGERIA LTD. (1990) 3 NWLR (PT. 139) at 905 and other cases,
On issue 2 learned Counsel for appellant submitted that the learned trial judge was wrong to enter judgment for the respondent on his reply to statement of defence that was not filed and hence the respondent could not amend his reply.
On issue 3 learned Counsel submitted that the conditions far the application of section 35 (or even section 54) of the Evidence Act did not exist before the previous evidence of Jonathan Chukwu in suit No PHC/81/71 was admitted cited KOGBA V. THE STATE (1968) ANLR 98 at 100 – 101; SODIMU V. NPA (1975) ANLR 151 at 156 etc.
He finally urged the court to allow the appeal, set aside the judgment of the court below and enter judgment for the appellants on their counterclaim.
Learned counsel for the Respondent formulated one sole issue for determination in his brief as follows:
“WHETHER DECISION OF THE TRIAL JUDGE IS CORRECT”?
Learned counsel for the respondent in his brief submitted that the pleadings of the plaintiff which included the Amended Reply to Defence and Defence to Counterclaim ought to be considered together. He stated that there was no severability of pleadings of a party as such was not contemplated in law. He cited FADLACCASI v. AREWA ILES LTD. (1999) 8 NWLR 9 (PT. 518) 546 at 562. He submitted that by virtue of section 74 (L & m) of the Evidence Act the court had to take judicial notice of the decision of the high Court in suit No. PHC/81/71 and that it required ns proof. He referred to Section 73 of the Evidence Act.
Learned counsel for the respondent referred to the evidence adduced and submitted that the plaintiff/respondent relied on the judgment in PHC/81/71 a step approved by Supreme Court in some earlier cases. He relied on UKAEGBU v. UGOJI (1991) 6 NWLR (PT. 196) 127 at 159; OJIAKOR V. OGUEZE & ORS (1962) 1 ANLR (PT. 1)8.
He posited further that having regard to the defendants/appellants, case and counterclaim the issue of Estoppel raised by the Respondent was valid and solid defence capable of terminating the proceedings.
He submitted that the trial court was on firm ground when it held that the appellants could not be allowed to relitigate those facts and issues upon which a competent court had made solemn pronouncements on as in suit no. PHC/81/71. He submitted further relying on a number of authorities that the plaintiff/respondent proved his case in the trial court and that no miscarriage of justice was occasioned by the conduct of the proceedings in the judgment of the trial court.
He finally urged the court to dismiss the appeal.
I have carefully considered the submissions of learned counsel both sides.
I need to first state that the defect in the process filed by the plaintiff/respondent at the lower court, on the filing or non-filing of the Reply, ought to first have been brought to the notice of the trial judge and addressed upon by parties. I have gone through the proceedings at the court below. I am unable to see where this issue was raised for the consideration of the lower court throughout the proceedings before it. It is trite law that before a new issue can be raised on appeal, the appellant must first seek the leave of court. See ELUGBE V. OMOKHAFE (2004) 18 NWLR (PT. 905) 319; OGUNSOLA v. NICON (1996) INWLR (PT. 423) 126; MARKE V. EKE (2004) 16 WRN 57 at 84. As the appellants failed to obtain leave of court issue 2 as formulated by the appellants is incompetent. It is accordingly struck out.
The sole issue formulated by the respondent in their brief embraces the remaining two issues formulated by the appellants.
I shall determine this appeal in the light of the said issue.
Is the judgment of the trial court delivered on 14/1/2003 correct?
The pleadings that guided the evidence adduced as accepted by the learned trial judge in his judgment are-
(1) Plaintiff’s further amended statement of claim-see pages 49 to 50 of record.
(2) Defendant’s statement of defence and counter-claim – see pages 33 – 37 of record.
(3) Amended Reply to Statement of Defence and Counter claim – see Pages 51 – 52 of record.
In proving his case, the plaintiff placed heavy reliance on the judgment in PHC/81/71. By paragraphs 6-9 of the further Amended Statement of Claim, the plaintiff averred as follows:-
“6. Sometime in 1971 two principal members of the Defendants family sued the plaintiff at the Port Harcourt High Court for themselves and as representing the entire defendant’s family, asking inter alia for a declaration of title over the land in dispute, which they referred to as EKWU Otoloro Chida.
This afore-said action was dismissed by Honourable Justice O. Inke-Taria, as his Lordship had given judgment for the plaintiff. The plaintiff will at the hearing of this matter found on the judgment of the court and record of proceedings in suit PHC/81/71 as well as survey plan No. SL 66A/72 (the plaintiff’s plan in PHC/81/71).
7. The defendants appealed against the afore-said judgment to the Federal court of Appeal sitting at Enugu, which appeal was dismissed. The Plaintiff will at the hearing found on the judgment and record of proceedings at the Federal Court of Appeal in suit No. FCA/38/80.
8. The defendant further appealed to the Supreme Court in suit No. 39/1981, which was withdrawn by the defendants and struck out. The Plaintiff will at the trial found on the said ruling of the Supreme Court-
9. That because of the afore-said decisions of the High Court, and the court of Appeal over the land in dispute, the plaintiff will rely on the doctrine of estoppel and will contend that the defendants are estopped from further claims to title to the land in dispute.”
In the Amended Reply to the Defendant’s Statement of Defence and counterclaim the plaintiff further averred in paragraphs 13, 16 and 17 as follows:-
“13. The plaintiff repeats that the piece of land in dispute in SUIT No. PHC/81/71 is the same with the piece of land now in dispute. Plaintiff will at the trial rely on plan filed in suit No. PHC/81/71.
16. The plaintiff denies paragraphs 2, 3, and 4 of the counter-claim and puts the Defendants to strict proof of all averments therein. In further answer to the afore-mentioned paragraphs, plaintiff avers that the land, the subject matter and that plaintiff has been carrying out development on the said parcel of land without hindrances, and ownership of the land in dispute had been decided in PHC/81/71.
17. The plaintiff further avers that by virtue of the decision in PHC/81/71 between the same parties, the defendants are estopped from making any claims against the plaintiffs on the land in dispute hence they are not entitled to any of the reliefs sought in the counter-claim.”
The defendants however in paragraph 12 of their statement of defence and paragraphs of their counterclaim in reaction averred thus:
“12. Save as admitting that suit No. PHC/81/71 was entered between Late Chief Joseph Worgwu and Chief Francis Weli Elokor on behalf of the Defendants’ family, the Defendants deny every other averment contained in paragraph 12 of the plaintiff’s statement of claim is hereby denied and the plaintiff is put to the strictest proof thereof. The defendants specifically deny that judgment was entered in favour of the plaintiff in suit No PHC/81/71.” The defendant shall also lead evidence at the trial of this suit to show that the piece of land in dispute in suit No. PHC/81/71 is different from the piece or parcel of land now in dispute (or more factually purportedly in dispute)”.
3. The plaintiff has notwithstanding the pendency of this suit and the protestations by the defendants family continued with the trespass complained of and has advanced North/West of the land where upon the plaintiff has completed the construction of a wall fence with gate”.
The plaintiff in proving his case gave evidence inter alia thus:
“I am Omunakwe Nyeche Nisirim …. The name of my is Akwako I came from Nsirimovo Mgba family. I am the only surviving son of that lineage; I am the head of that family… I know the defendants… I have brought them to court because of my land – Ekwumgbakiri. I sued them in their personal and representative capacities … sometime in 1971 the defendants sued me over same this same piece of land in suit NO. PHC/81/71. I won the case in the Port Harcourt High Court. They went on appeal to the Federal Appeal Court Enugu and they lost. They went further to the Supreme Court and they withdrew and the case was struck out. Because I did not counterclaim in that suit that is why I instituted this to ask for a declaration. In that suit I called the land “Ekwum gbakiri”. While they called it “Ekwutuolo – Chida” I can identify the proceedings in that suit. These are the proceedings with the survey plan… it is not true that the land in the previous case is different from the one I am suing now. It is the same land the same name and the same plan. Their counterclaim herein cannot succeed because the issue had been concluded; I want this court to grant a declaration of title to this land in my favour on injunction to restrain the defendants.”
The first witness for the defendants obviously did not know the land subject matter of the previous suit in PHC/81/71. Under cross-examination he said he was not aware of suit No PHC/81/71 and did not know that his land was shown on the survey plan used in that case. See pages 79 to 80 of Record.
The 2nd DW Godfrey Chuku also was not aware of suit No PHC/81/71. The 3rd DW did not also know that Ewumgbakiri was called Ewuotuloro. He did not know the boundaries of Ekwuotuloro. The 4th DW was the surveyor. He gave evidence relating the two survey plans from the plaintiff – Exhibit D1 and P2 but did not relate them to the survey plan tendered through the defendants – Exhibit D2.
However, under cross-examination by counsel for the plaintiff he said;-
“I made Exhibit D2. We did a survey, the features were on the land and the defendants supplied the names. The name of the land is shown as Ekwu Otuloro Chinda. The land of Joseph Worgwu, Bekwele Worgwu Friday Worgwu are all within the area in dispute … I have seen the plan Exhibit P2. The plan also cover the land of Joseph Worgwu Bekwele Worgwu, Friday Worgwu and Okabie Worgwu”.
It is clear from Exhibit P1 which is the proceedings and judgment in PHC/81/71 that the subject matter of the said suit in the land described in Exhibit P2 which is redrawn and admitted as Exhibit D1. It is also clear from the Judgment of Inko – Tariah J delivered on 3/3/75 in suit Ns. PHC/81/71 that the land described as “Ekwuotoloro” is one and the same as “Ekwungbakiri” See page 4 of the judgment”
Now for a plea of estoppel to succeed a party relying on it must prove following:-
(i) that the parties or their privies involved in both the previous and the proceedings in which the plea is raised are the same.
(ii) that the issue in dispute in both proceedings are the same.
(iii) that the subject matter in the two proceedings are the same.
(iv) that the decision relied upon as creating estoppel is final and valid.
(v) that the court that gave the decision relied upon was a court of competent jurisdiction.
The burden is on the party who sets up the defence of estoppel to so prove. See OSHODI V. EYIFUNMI (2000) 7 SC (PT. II) 145; IGWEGO V. EZEUGO (1992) 6 NWLR (PT. 249) 561; ABUBAKAR V. BEBEJI OIL & ALLIED PROD. LTD (2008) 15 WRN 1 at 52.
Estoppel, though is generally a shield for the protection of a defendant, it can however sometimes be employed as a sword by a plaintiff. See ABULOGU V. SPDC (NIG) LTD [2003] 12 NWLR (PT 837) 308.
It should however be noted that a judgment obtained against a party in his personal capacity cannot constitute res judicata in an action against the party in a representative capacity” SEE OKUKUJE V. AKWIDO [2001] 1 WRN 1, UDEZE & ORS V. CHIDIE & ORS (1990) 1 NWLR (PT 125) 141.
The learned trial judge upheld the plea of estoppels of estoppels raised by the plaintiff now Respondent in this appeal and gave judgment in favour of the plaintiff in respect of his claim but dismissed the defendants’ counterclaim.
Were the parties the same? The parties in PHC/81/71 were
JOSEPH WORGU
FRANCIS ALIKOR – (for themselves and for and on behalf of the Rumuchida family of Rumueme).
AND
(i) O. N. NSIRIM
(ii) AKERUCHI NSIRIM
It is clear that the plaintiffs sued in representative capacity for and on behalf of Rumuechida family of Rumueme who were defendants in PHC/231/91 now on appeal.
However the plaintiff in the suit now on appeal is CHIEF O.N. NSIRIM who was the 1st defendant in PHC/81/71.
A close perusal of the proceedings in PHC/81/71, Exhibit P1 reveals that the evidence of the defendant was that the land belonged to the family of Nsirim Ovumba. See page 25 of Exhibit P1. In his judgment Inko-Tariah J. stated that the defendant in PHC/81/71 was sued in their own rights.
Who was Aleruchi Nsirim, the 2nd defendant in PHC/81/71, so as to be able to determine whether or not the parties or privies were the same with PHC/231/91? The plaintiff now respondent under cross-examination on page 16 of Record explained.
“In Suit No. PHC/81/71 Aleruchi Nsirim (my sister’s son) was a defendant in that case but he was dropped by me in it. He was a person I was building a house for on that land, and throughout the trial he never surfaced.” This piece of evidence was not challenged throughout the proceedings. It seems to me that Alerehi Nsirim is a privy of O.N. Nsirim in respect of the land in dispute.
In which case the absence of the name of Aleruchi Nsirim in PHC/231/91 unlike in PHC/81/71 does not detract from the fact that the parties in the two suits are the same since Aleruchi was the sister’s son of the plaintiff in FHC/231/91 whom he was building house for on the land.
Was the subject matter in the two suits the same?
The defendants in the suit now on appeal who contended otherwise did not seem to even know the land subject matter of the suit in PHC/81/71. The surveyor, DW4 merely re-echoed what he was told by the defendants hence he could not related the plan he drew, Exhibit D2 to the plan tendered in PHC/81/71 Exhibit D1.
The trial judge was also convinced that the two suits were in respect of the land. I agree with him Suit No. PHC/81/71 was the judgment of a competent court and the issues in PHC/81/71 and PHC/231/91 are the same.
The learned trial judge found that the plea of estoppel was successfully raised by the plaintiff and this in my respectful view cannot be faulted.
On plea of estoppel, Ogbuagu JSC in ABUBAKAR V. BEBEJI OIL (supra) at page 59 had this to say,
“…the rule of estoppel per rem judicatam requires that where a final decision is given by a court of competent jurisdiction the parties thereto, cannot be heard to contradict that decision in any subsequent litigation between them respecting the same subject-matter as a plea, the decision operates as a bar to a subsequent litigation and as evidence it is conclusive and as evidence it is conclusive between the parties to it. See section 57 and 55 of the Evidence Act.”
The above is of particular relevance in this appeal.
What remains to be considered is whether the rower court was right in the face of the evidence adduced to have dismissed the counter claim of the defendants. The answer is yes. The learned trial judge rightly accepted the evidence of acts of ownership and possession given by the plaintiff coupled with the over whelming evidence of the judgment in PHC/81/71 and came to the right conclusion that the counter-claim of the defendants deserved to be dismissed.
I am of the firm view that the judgment of Ndu J. (as he then was) of 14/1/2000 is unassailable.
I resolve the issues formulated in favour of the Respondents.
I had that this appeal lacks merit. It is accordingly dismissed with costs assessed at N60, 000.00 in favour of the Respondent.
ISTIFANUS THOMAS, J.C.A: I read before now, the lead judgment of my learned brother, Awotoye, JCA, just delivered. I am in agreement that the appeal has no merit. I abide with consequential orders including costs.
EJEMBI EKO, J.C.A: The substance of the suit at the court below resolved by the learned trial judge is the question whether the previous decision in the Suit No. PHC/81/71 operated as estoppel per rem judicatam. On the available facts the learned trial Judge resolved that issue against the appellant. The appeal is against that decision.
Exhibit P1 contains the proceedings and judgment in the Suit No. PHC/81/71. The subject matter in the said suit is the land described in Exhibit P2, which was redrawn in Exhibit D1. The judgment in Suit No. PHC/81/71, Exhibit P1, declared the title to land described in Exhibits P2 and D1 in favour of Aleruchi Nsirim, who was the defendant in that suit. The Respondent, as the plaintiff in the present suit, is an uncle of Aleruchi Nsirum. He was enforcing against the Appellants in the present action the terms of judgment in the Suit No. PHC/81/71 in respect of the land described in Exhibits P2 and D1. There is no doubt he is Aleruchi Nsirim’s privy.
The judgment in the Suit No. PHC/81/71 in respect of the land described in Exhibits P2 and D1 is a final judgment. Neither the parties to that judgment, their privies nor successors-in-title can be heard to plead the contrary of that decision subsequently in any litigation. Such decision, as Ogbuagu, JSC states in ABUBAKAR V. BEBEJI OIL & ALLIED PROD. LTD. (2008) 1 at 52 operates as a bar to any subsequent litigation over the subject matter therein. The right of ownership or title to the land described in Exhibits P2 and D1, which had been duly declared in the Suit No. PHC/81/71, Exhibit P1, as between the parties to that suit and/or their privies is conclusive.
The learned trial judge led by the persuasive evidence or facts in the instant suit had come, in my firm view, to the right decision, in holding that the decision in Suit No. PHC/81/71 operates as estoppel per rem judicata. The decision is reasonable. It is supported by the available evidence on Record. I will not disturb or interfere with it. It say no more in this appeal, other than to say that I am in complete agreement with the analyses and conclusions of my learned brother, T.O. Awotoye JCA, in the lead judgment just delivered. Accordingly I hereby adopt the same, including the orders as to costs made therein.
The appeal lacking in substance is hereby dismissed by me.
Appearances
G.D. Collins Harry (Miss) Esq.,For Appellant
AND
L.V.C. Michaels Esq., with O.G. Wosu (Mrs.)For Respondent
