ISICHEI v. AKHIGBE
(2022)LCN/16913(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Thursday, July 21, 2022
CA/B/260/2016
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
CHIEF JOE ISICHEI APPELANT(S)
And
BRIGHT AKHIGBE RESPONDENT(S)
RATIO
THE POSITION OF LAW ON WHEN A PLEA OF ESTOPPEL PER REM JUDICATAM IS RAISED
It is well established that when a plea of estoppel per rem judicatam is raised, it is the duty of the trial Court to examine the judgment relied upon and say whether it decided the issue pleaded. Similarly, it is legitimate for the trial Judge to make such an enquiry in order to determine the fundamental basis of the judgment. See Asagba & Anor vs. Ogaje & Anor (1972) 11 S C. p.139 at 156 and Chief Aseimo and Ors vs. Chief Amos & Ors (1975) 2 SC p.57 at 67. What this means in essence is that for the principle of res judicata to apply in any given proceedings, all the pre-conditions to a valid plea of estoppel inter parties or per rem judicatam must apply. All the conditions must coexist and a break in the link or chain will render the plea unsustainable. It is therefore a question of fact whether the parties and their privies, the facts in issue and the subject matter of the claim are the same as those in the current suit. See Adigun’s case (supra). It is not sufficient merely that the parties are the same. See too Chiekwe vs. Obiora (1960) 5 F.S.C. p.258 referred to in Ajakaiye vs. Military Gov. of Bendel State (supra) cited by the Applicant’s Counsel.” Per ORJI-ABADUA, JCA (Pp. 13-14, paras. E-D)
It is also imperative to restate as enunciated by the Supreme Court in Igwego & Ors vs. Ezeugo & Anor (1992) LPELR-1458(SC) that:
“Where res judicata is pleaded by way of estoppel to an entire cause of action, it amounts to an allegation that the whole legal rights and obligations of the parties are concluded by the earlier judgment, which may have involved the determination of questions of law as well as findings of fact. For the plea to succeed therefore, 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 has 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 reipublicae 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 a final one.” Abubakar vs. Bebeji Oil and Allied Products 2007. What is expected of Court in considering the application or applicability of doctrine of res judicata? Tobi, JSC, in Abubakar vs. Bebeji Oil and Allied Products Ltd & Ors (2007) LPELR-55(SC) on what is expected of Court in considering the application or applicability of doctrine of res judicata had the following to say: “In considering the application or applicability of the principle or doctrine, the Court should remind itself of the tricks the parties, at times, play to beat its application. This is the only way to meet such parties full length rather than half-length. This arises when a party, at times, include nominal or docile parties and he will be quick in telling the Court, for example, that the previous matter had three defendants as opposed to the current one which has four defendants. The inclusion of the fourth defendant could be a charade or farce. There are also instances when the party includes an additional relief or reliefs, which are inactive as functioning only as appendage or peripheral to the main issue or issues to the extent it does not add anything substantial to the main issue or issues. There are times when parties play with words to present a camouflage that the issues are different when in reality they are not. The trial Judge, in the use of the eyes of an eagle will be able to remove the chaff from the grain and decide whether the principle or doctrine of res judicata is applicable or inapplicable.” PER ORJI-ABADUA, J.C.A.
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): This appeal challenges the decision of the Edo State High Court delivered on the 26th February, 2016 in Suit No. B/142/2011 instituted on the 24th February, 2011 by the Respondent against the Appellant. The suit was commenced by way of Writ of Summons filed together with Respondent’s Statement of Claim. However, by the leave of the lower Court, the Statement of Claim was amended and further amended. Then in the Further Amended Statement of Claim dated the 9th July, 2012, the Respondent sought four reliefs against the Appellant thus:
“(a) DECLARATION that the Plaintiff is the bonafide owner, in peaceable possession and the person entitled to the issuance of a Statutory Right of Occupancy in respect of the piece of land lying, situate and being at Ward 17/H, Old Government Reservation Area, Benin City measuring 100ftby 200ft or approximately 2038.837sq. meters as well as the story building of six (6) flats built thereon presently addressed as No. 11, Aluyi Street, Off Ihama Road, Behind George Idah Primary School, G.R.A, Benin City.
(b) DECLARATION that the Edo State High Court judgment in Suit No. B/55/2000: Chief Joe Isichei Vs. Alhaji Abdulkarim Raymond Nwabudike has no bearing whatsoever with the Plaintiff’s parcel of land lying, situate and being at Ward 17/H, Old Government Reservation Area, Benin City measuring 100ftby 200ft or approximately 2038.837sq. meters as well as the story building of six (6) flats built thereon presently addressed as No. 11, Aluyi Street, Off Ihama Road, Behind George Idah Primary School, G.R.A, Benin City.
(c) A DECLARATION that late Mrs. Gladys Akenzua and Alhaji Abdulkarim Raymond Nwabudike against whom the Defendant got judgment in Suit No. B/55/2000: Chief Joe Isichei Vs. Alhaji Abdulkarim Raymond Nwabudike are neither the Plaintiff’s predecessors-in-title nor his privies whosoever in respect of the disputed property to warrant the Defendant attempting to enforce same judgment against him.
(d) AN ORDER OF PERPETUAL INJUNCTION restraining the Defendant either by himself, his servants, agents or privies from interfering with or doing anything, whatsoever to interfere with the right and interest of the Plaintiff in the piece of land lying, situate and being at Ward 17/H. Old Government Reservation Area, Benin City approximately 2038.837sq. meters as well as the story building of six (6) flats built thereon presently addressed as No. 11, Aluyi Street, Off lhama Road, Behind George Idah Primary School, G.R.A, Benin City.”
In the Amended Statement of Defence filed by the Appellant, he made a counter-claim against the Respondent as follows:-
“(1) A declaration that the Defendant is the rightful owner, in fact, and in law of the corner piece of land measuring 100feet X 200 feet lying and situate at Aluyi Street/Oghosa Crescent in Ward 17H, behind the old G.R.A. Benin City and currently known as No. 11 Aluyi Street, off lhama Road, G.R.A, Benin City.
(2) A declaration that the Defendant is the person entitled to Statutory Right of Occupancy in respect of the said land in dispute as contained in the judgment delivered in Suit No. B/55/2000: Chief Joe Isichei v Alhaji Abudulkarim Raymond Nwabudike by Hon. Justice A.N. Ehigiamusoe of the Benin High Court on 04/06/2009.
(3) A declaration that the said judgment is still subsisting and cannot be set aside by a Court of competent co-ordinate jurisdiction.
(4) A declaration that the Claimant is bound by the said judgment having been legally caught by the equitable doctrine of STANDING BY.
(5) An Order of perpetual injunction restraining the Claimant either by himself for by his agents, assigns or his privies from further trespassing on the said land or carrying on any activity thereon in any manner whatsoever.
(6) An Order of payment of the sum of N500,000.00 by the Claimant to the Defendant as general damages for trespass.
(7) An Order of immediate possession by the Defendant.”
The lower Court delivered its judgment on the 26th February, 2016. It awarded judgment in favour of the Respondent as prayed and then dismissed the counter-claim of the Appellant for lacking in merit. Being disgruntled at the said judgment, the Appellant filed his Notice of Appeal on 31/3/2016 which anchored on four grounds of appeal. The record of appeal was transmitted to this Court on 2/7/2016 but it was deemed on 16/5/2019. The Appellant filed his Brief of Argument on 25/6/2019 and the same was served on the Respondent on 27/6/2019. The Respondent did not file his Brief of Argument within the prescribed period nor did he file a Motion for extension of time to file Brief out of time. This prompted the Appellant to file a Motion on Notice for the appeal to be heard on the Appellant’s Brief alone on 30/9/2019. At the hearing of the appeal on 26/4/2022, this Court observed that the filing of the Motion on 30/9/2019 was absolutely unnecessary as there was no provision in the 2016 Rules of this Court under which it was filed for such Motion since the Court was empowered by the Rules to hear appeals without need for such applications. The Respondent’s Counsel who was present in Court told an untruth to the Court that the Respondent filed his Brief of Argument in 2017 whereas the Appellant’s Brief was filed and served on the Respondent in 2019. By the processes before this Court, the Respondent did not file his Brief in this appeal. It was evident that the Respondent lacked interest in defending this appeal and there was no application for an extension of time filed by the Respondent to file the Respondent’s Brief out of time since three years after he had been served with the Appellant’s Brief of Argument. Counsel only came to the Court on that day to keep trying his luck in delaying the hearing of the appeal. The appeal was then heard and judgment therein was reserved.
In the Appellant’s Brief of Argument, four issues were projected as follows:
“1. Whether the lower Court did not err and acted without jurisdiction and competence when it heard and delivered judgment on the land in dispute in Suit No: B/142/2011 and declared that the Respondent was the owner of the land in dispute having regards to the fact that the lower Court (Per Honourable Justice A. N. Ehigiamusoe) had earlier delivered judgment on the same land in dispute in Suit No: B/55/2000 and held that the Appellant was the owner of the land in dispute and the lower Court (Per Honourable Justice S. O. Oigboke), had also earlier dismissed an application by the Respondent seeking to set aside the Court’s judgment in the Suit No: B/55/2000 and refused to re-open litigation on the ownership of the disputed land? (Distilled from Grounds 1, 2 and 6 of the Amended Notice of Appeal).
2. Whether the lower Court was right when it refused and/or failed to consider and uphold the Appellant’s argument to the effect that the Respondent purportedly purchased the disputed land from Solomon Onaighise (CW1), whilst being aware of and during the pendency of Suit No: B/55/2000, which rendered the purported sale to the Respondent a nullity ab initio? (Distilled from Ground 3 of the Amended Notice of Appeal).
3. Whether the lower Court was right when it held (at page 273 of the Record of Appeal) that the Respondent was not caught by the doctrine of Standing By and as a result, the judgment in the said Suit No: B/55/2000 has no binding effect on the Respondent? (Distilled from Ground 4 of the Amended Notice of Appeal).
4. Whether the lower Court was right when it held (at page 274 of the Record of Appeal) that the Respondent was in possession of the land in dispute. (Distilled from ground 5 of the Amended Notice of Appeal).”
In respect of issue No.1, Learned Counsel for the Appellant pointed out that the subject matter of this appeal is the same as the subject matter of the earlier Suit No. B/55/2000 wherein the Appellant tried unsuccessfully to join Chief Solomon Onaghise, the Respondent’s predecessor in title and in respect of which the Respondent later got judgment against Alhaji Abdulkarim Raymond Nwabudike. He referred to pages 2 and 271 of the record of appeal and said that the Respondent admitted the existence of the said judgment, that he obtained judgment in suit No. B/55/2000 against Mrs. Gladys Akenzua and Alhaji Abdulkarim Raymond Nwabudike and the declaration by the Court that those people are neither the Plaintiff’s predecessors-in-title nor his privies in respect of the disputed land to warrant the defendant attempting to enforce the same judgment against him. He said that the Respondent admitted that the said judgment in suit No. B/55/2000 delivered on 4/6/2009 shown at pages 152-161 of the record and that it granted possession and ownership of the disputed land to the Appellant. He further stated that the Appellant applied for and was granted Writ of Possession shown at pages 162-163 of the record, and the same was executed by the Chief Bailiff of the lower Court in favour of the Appellant on 13/4/2010. He further pointed out that the said judgment was never appealed against and the same is binding on all persons including the Respondent.
Learned Counsel then contended that by the lower Court delivering judgment in 2009 in suit No: B/55/2000 between Chief Joe Isichei v. Alhaji Abdulkarim Raymond Nwabudike where it adjudged the Appellant as the owner of the disputed land, and possession given to the Appellant, and, the said lower Court also dismissed the Respondent’s attempt to reopen the issue in 2011, via the decision of the High Court of Edo State contained at pages 164 to 190 of the Record of Appeal), the lower Court was functus officio as regards the question of the ownership of the disputed land and therefore the lower Court ought not to have re-opened, revisited or reviewed the issue of the ownership of the said land in Suit No: B/142/2011 via her judgment of the 26th day of February, 2016 shown at pages 250 to 280 of the record of appeal.
Learned Counsel then argued that by hearing and deciding the present Suit B/142/2011 which triggered this appeal, the lower Court wrongly reviewed the decision of the Court of co-ordinate jurisdiction in the earlier suit No: B/55/2000, and it effectively sat on appeal over the earlier decision in Suit No. B/55/2000. He further stated that by giving judgment in favour of the Respondent on the same subject matter as the subject of the said Suit No. B/55/2000, the lower Court indirectly set the previous judgment aside. He made reference to the case of Amanambu vs. Okafor (1966) 1 ALL NLR 205 at 207 where the Supreme Court made it clear that no Court of a co-ordinate jurisdiction has the power to review the judgment of another Court. He further cited the cases of Skenconsult (Nig) Ltd v. Ukey (1981) 1 SC page 6 at 34 and Nasiru vs. State (2016) LPELR-41806 (CA) and submitted that in the absence of statutory authority, one Judge has no power to set aside or vary the Order of another Judge of concurrent or Co-ordinate jurisdiction. He further submitted that a decision of the Court against which no appeal has been filed is deemed accepted by the party against whom the decision was entered and therefore, binding. He then argued that the decision of the 23rd February, 2011 contained at pages 164 to 190 of the Record of Appeal which dismissed the Respondent’s application seeking to set aside the Court’s judgment in Suit No:B/55/2000 between the Appellant – Chief Joe Isichei V. Alhaji Abdulkarim Raymond Nwabudike (contained at pages 152 to 161 of the Record of Appeal), still subsists and binding on the Respondent, therefore the Respondent is caught up by the principle of res judicata and barred from re-litigating the subject matter in another Suit (Suit No:B/142/2011) filed before the lower Court. He contended the lower Court ought to have declined jurisdiction and strike out the suit leading to this appeal. He therefore, urged that this issue be resolved in favour of the Appellant and strike out the suit for lack of jurisdiction.
In respect of issue 2, learned Counsel argued that insofar as the Respondent purportedly purchased the disputed land from one Solomon Onaighise (CW1), whilst being aware of and during the pendency of Suit No: B/55/2000 between Chief Joe Isichei V. Alhaji Adulkarim Raymond Nwabudike, the purported sale was a nullity and the Respondent acquired nothing from the said purchase from the said Chief Solomon Onaghise (CW1). He stressed that the said sale of land in dispute, having being made during the currency of litigation is, in law, void ab initio. He emphasised Chief Solomon Onaghise (CW1), had full knowledge that the land in dispute was sub judice as early as 2003 as shown at page 192 of the record of appeal, he still proceeded to sell the same piece of land to the Respondent in 2006 as contained in pages 15D to 15F of the record of appeal while the case was still pending in Court. He explained that immediately the Appellant became aware of the trespass of CW1, he applied to join him to the said Suit No: B/55/2000, but which CW1 resisted, claiming that he was not an interested party. He cited the Supreme Court case of Bamgboye vs. Olusoga (1996) LPELR-736 (SC) where it was held that “The transfer of a land during the pendency and the operation of a just trial of the suit, the more so when the purchaser has clear notice of the pending suit. Because when a case is pending, with either party claiming ownership or title and neither has been declared owner or winner, nothing must interfere with status quo at the time of litigation. Thus, no person can validly convey that land in dispute to any other person including the parties to the suit during the pendency of that suit.”
He also made reference to the case of Osagie vs. Oyeyinka (1987) 6 SC 199 at 238 where the Supreme Court further illustrated the invalidity of this kind of sale by holding that the principle of nemo dat quod non habet will apply to defeat any sale or transfer of property made during the currency of litigation or the pendency of the action.’
He then submitted that CW1, who had knowledge of the pendency of Suit No: B/55/2000 and whom the Respondent claimed was his vendor had nothing to convey to the Respondent at all material times. He emphasised that the Respondent never had any title to the land in dispute either prior to or during the litigation before the Court. He then submitted that the failure by the lower Court to consider this salient point which was duly argued by the Appellant before it was grossly erroneous and occasioned a miscarriage of justice.
He urged this Court to resolve this issue in favour of the Appellant.
Regarding issue 3, it was submitted that the lower Court was manifestly in error when it held that the Respondent is not caught by the equitable doctrine of Standing By and therefore not bound by the judgment in the said Suit No. B/55/2000. He contended that the subject matter of Suit No. B/55/2000 is the same as the subject matter of this appeal and that the subject matter of this appeal is the same as the subject matter of Suit No. B/260/2007; REGISTERED TRUSTEES OF DEEPER LIFE CHRISTIAN MINISTRY V. BRIGHT AKHIGBE & 2 ORS shown at pages 75 to 81 of the record. He explained that suit No: B/55/2000 was originally instituted by one Princess Gladys Nwabudike (nee Akenzua) against the Appellant as shown in pages 148 to 149 of the record of appeal over the ownership of the disputed land. During the pendency of the suit, the Appellant applied to join Solomon Onaghise (CW1) as a party to Suit No: B/55/2000 and served him with all the processes. But the said Solomon Onaghise (CW) claimed that he had no interest in the litigation, successfully resisted the joinder application and stood by, while the parties thereto litigated the matter to conclusion. Later, the said Solomon Onaghise (CW1) transferred the disputed land to the Respondent, having purportedly acquired it from one Princess Florence Uvbi Akenzua (Sister to the Princess Gladys Nwabudike nee Akenzua in the Suit No: B/55/2000, as originally constituted). He further explained that the Respondent later became aware of the action between Princess Gladys Nwabudike (nee Akenzua) and the Appellant over the disputed property during the pendency of Suit No. B/260/2007; REGISTERED TRUSTEES OF DEEPERLIFE CHRISTIAN MINISTRY V. BRIGHT AKHIGBE & 2 ORS. The Respondent, as the 3rd Defendant in the said suit No. B/260/2007; REGISTERED TRUSTEES OF DEEPER LIFE CHRISTIAN MINISTRY V. BRIGHTAKHIGBE & 2 ORS (contained at pages 75 to 81 of the Record of Appeal) was therefore aware of the existence of Suit No: B/55/2000 between Princess Gladys Nwanbudike (later substituted with Alhaji Abdulkarim Raymond Nwabudike at pages150 to 151 of the record) v. Chief Joe Isichei in 2007 (as can be deduced from pages 198 to 200 and 201 to 203 of the Record of Appeal). He then referred to the response filed by the Respondent to the Statement of Claim by the Plaintiff in that case shown at pages 198 to 200 of the record which argued indicated that the Respondent had knowledge of the existence of the said Suit No. B/55/2000 in 2007 and in spite of that, the Respondent stood by for two years while the parties thereto litigated the ownership of the disputed land to conclusion. Counsel then referenced the cases of Clay Industry (Nig) Ltd vs. Aina & Ors. (1997) LPELR-871(SC) Oguejiofor & Ors. Ejidike & Ors. (2012) LPELR-14440(CA) and Oke vs. Atoloye (1986) ALL NLR 84 at 93, where the Supreme Court per KAZEEM JSC stated as follows: “If a person knowing what was passing was content to stand by and see his battle fought by someone else in the same interest, he should be bound by the result and not be allowed to reopen the case.” He urged this Court to resolve the issue in favour of the Appellant.
Under issue 4, that is, if the lower Court was right to hold that the Respondent was in possession of the land in dispute, it was submitted that the Warrant of Possession of the land in dispute was given to the Respondent on 23/4/2010 as endorsed by the officials of Edo State High Court on Exhibit 5. He said that there was a clear admission that the Respondent was in possession of the disputed land as from 13/4/2010. He contended that the finding of the lower Court that the Respondent was in possession is perverse and liable to be set aside. He submitted that the Appellant demonstrated a better title to the land in dispute inclusive of the judgment in Suit No. B/55/2000. He said that in view of the duly issued and executed Warrant of Possession in favour of the Appellant, the lower Court ought not to have accepted the Respondent’s claim to possession which possession could only have been illegally acquired in defiance of the Warrant of Possession. He argued that the issue of who was in possession was effectively settled following the execution of the Warrant of Possession by the lower Court in favour of the Appellant on 13/4/2010. He made reference to the case of Mogaji & vs. Cadbury (Nig) Ltd (1985) LPELR(SC); and submitted that it is the law that illegal possession of a disputed or de facto possession could not ripen ownership nor confer title of the disputed land on the Respondent. And also that long possession and enjoyment of a piece of land cannot ripen into ownership against the interest of the true owner. He further referred to the case of Olagunju& Ors vs. Olatunbosun & Ors (2018) LPELR 46053(CA) where it was highlighted that the law attaches lawful possession to the person with the better title. Thus, two persons cannot be in possession of land at the same time. One must be a lawful possessor, whereas the other is a trespasser. The position therefore is that the owner of land and the person intruding on that land without consent cannot both be in possession at the same time. Possession resides in the claimant that has better title.” The above presupposes that where there are competing title claims, possession is with the one with a better title.
Counsel also made reference to the case of Ekpechi vs. Owhonda (1998) 3 NWLR Part 543 page 618 at 625, where it was held that “A person who cannot prove to have been in possession of a defined and ascertained area of land cannot claim to have dominion over any specific land to the exclusion of any other person for a prior right thereto. He cannot therefore claim earlier possession of such land than any other person who is able to prove possession of a known area.”
The Appellant averred at paragraph 9 of his Amended Statement of Claim that he purchased the land in dispute sometime in the year 2006 from one Chief Solomon Onaghise who transferred his entire interest in the land in question to him vide outright purchase evidenced in a Deed of Transfer. He took physical and actual possession of the said land from his immediate predecessor in title, Chief Onaghise. He further averred that he remained the undisputed owner of the land and in possession of the same until sometime in April, 2010 when the defendant came to the stated property and informed him, Plaintiff’s lawful attorney that he, the defendant got judgment against one late Mrs. Gladys Akenzua and Alhaji Abdulkarim Raymond Nwabuidike in respect of the disputed land. He further averred at paragraph 19 of his pleading that late Mrs. Gladys Akenzua and Alhaji Abdulkarim Raymond Nwabuidike against whom the Defendant got the said judgment were neither his predecessors-in-title in respect of the disputed land nor do they have interest whatsoever in same to warrant the Defendant attempting to enforce same judgment against him. He stated at paragraphs 17 and 18 that he filed an application before the Edo State High Court No. 5, Benin City from which the said judgment was obtained and sought amongst others, an Order setting aside the said judgment obtained by the defendant against those other persons, which said application was refused by the said lower Court.
The defendant now the Respondent in response averred at paragraph 4 of his Amended Statement of Defence that he has been in actual physical possession of the said land and exercised the right of ownership by farming thereon through a licensee authorized by him for over 25 years without let or hindrance since 1975 until 2000 and 2006 when Princess Gladys Nwabudike (nee Akenzua) and the Claimant now Appellant trespassed thereon respectively. Then at paragraphs 13, 14 and 15 of his pleading, he pleaded his root of title by detailing how he acquired the said land in dispute.
He averred at the paragraphs thus:
“13. That he is the rightful owner, in fact and in law, of the corner-piece land measuring 100feet x 200feet (2138.035 square metres) lying, situate and being at Aluyi Street/Oghosa Crescent Junction in Ward 17H behind the old GRA, Benin City currently known as No 11, Aluyi Street, Off lhama Road, Benin City.
14. The Defendant avers that he acquired the said corner piece land by purchase in 1975 from one Nowoghomwanma Akenuwa now late after the said assignor had obtained the Oba’s approval in respect of that allocation by the Plot Allotment Committee for Ward 17H, Benin City. The said Oba’s approval is hereby pleaded and will be tendered and relied upon at a hearing.
15. The Defendant avers that by a Deed of Conveyance dated 22/2/1978, the said assignor conveyed to him the entirety of the said piece of land measuring 100feet x 200feet lying, situate and being at Aluyi Street/Oghosa Crescent Junction in ard 17H behind the old GRA, Benin City currently known as No 11, Aluyi Street, Off lhama Road, Benin City. The Deed of Conveyance is hereby pleaded and will be tendered as evidence of payment of purchase money and relied upon at a hearing.”
CW1, Chief Solomon Onaghise, through whom the Plaintiff now Respondent claims the property testified as CW1 said he was the owner of the land in dispute and that the original owner was Princess Florence Akenzua who transferred to him before he transferred to the Claimant. He was surprised when in 2005 he got a summons to appear in Court in a dispute between the defendant now Appellant, Chief Isichie and late Princess Gladys Akenzua in Court 5. He was the 2nd defendant. He said he is aware of a Motion on Notice seeking to join him as a party in suit No. B/55/2000. The Motion for Joinder was admitted in evidence as Exhibit C.
One Francis Oseghese Iyawe, a Registered Surveyor, testified as PW2. He identified the documents property survey plan No. SEA/ED/837/06 dated 5/6/06 as Exhibit D. He also identified the litigation survey plan which he produced as Exhibit E.
Then Akhigbe Aligbedo testified as CW3 and said he knows the land in dispute and the identity of the land. There was a plantain plantation on the land at the time of purchase.
The Plaintiff’s lawful attorney, Mrs. Itohan Akhigbe gave evidence in the proceeding. The Power of Attorney given to her as the Plaintiff’s lawful attorney was tendered as Exhibit G. The title documents of the Claimant were admitted as Exhibits A, B, C, D, E and F. Under cross-examination, she said she was in Court over the same piece of land with Deeper Life Christian Ministry in 2007. She never knew the defendant until this case. He was never mentioned in that case.
On behalf of the defence, the defendant, Jonathan alias Joe Isichie testified. He tendered his own Deed of Conveyance as Exhibit H subject to payment of Stamp duty to be assessed by the Registry of the High Court. Sketch Plan No. LUD7208/13 was tendered as Exhibit J. The letter for certification of his Certificate of Occupancy dated 21/1/203 and letter dated 4th February, 1986 were admitted as Exhibits J1 and J2 respectively. He identified the Writ of Summons in the suit No. B/5/2000 instituted against him by Prince Gladys Nwabudike was admitted as Exhibit K. A publication in Nigerian Observer was tendered as Exhibit K1. The Enrolment of Order in suit B/5/2000 was admitted as Exhibit K2. The judgment delivered in suit No. B/55/2000 and the Enrolment of Judgment were tendered as Exhibits K3 and K4 respectively. He tendered the Warrant of Possession and Execution was admitted as Exhibit K5. The ruling delivered on 23/2/11 in the application made by the claimant for joinder in that suit No. B/55/2000 was tendered as Exhibit K6. The Motion on Notice dated 10/5/06 and counter-affidavit dated 4/7/06 in that respect were tendered as Exhibits K7 and K8 respectively. He tendered as Exhibit K9 the letter written by his Lawyer to Chief Solomon Onaghise. Also tendered as Exhibits K10, K11 and K12 were the statement of claim, joint statement of defence of 1st and 3rd defendants and Enrolment of Order in suit No. B/260/07.
In respect of issue No. 1 that raises issue of estoppel, it is important to note the proposition of the law that plea of res judicata operates not only against the party whom it affects, but, also, against the jurisdiction of the Court itself. See Umar vs. Alhassan (2013) LPELR-22339(CA), per Orji-Abadua, JCA, where it was further opined that: “The party affected is estopped per rem judicatam from bringing a fresh action before the Court. Thus, estoppel prohibits both the parties and the Court from enquiring into a matter already adjudicated upon. See Adigun vs. Gov. Osun State(1995) 3 NWLR Part 385 page 513 at 536 per Belgore, J.S.C., (as he then was). It is therefore, well established that to sustain a plea of res judicata, the party pleading it must satisfy the following conditions to wit: “(a) that the parties or their privies as the case may be, are the same in the present suit as in the previous suit; (b) that the issue and subject matter are the same in the present suit as in the previous suit; (c) that the adjudication in the previous case must be given by a Court of competent jurisdiction; and (d)that the previous decision must have finally decided the issues between the parties;” per Kutigi J.S.C. in Agbasi vs. Obi (1998) 2 NWLR Part 536 p.1 at 10-11, para H-B.
It is well established that when a plea of estoppel per rem judicatam is raised, it is the duty of the trial Court to examine the judgment relied upon and say whether it decided the issue pleaded. Similarly, it is legitimate for the trial Judge to make such an enquiry in order to determine the fundamental basis of the judgment. See Asagba & Anor vs. Ogaje & Anor (1972) 11 S C. p.139 at 156 and Chief Aseimo and Ors vs. Chief Amos & Ors (1975) 2 SC p.57 at 67. What this means in essence is that for the principle of res judicata to apply in any given proceedings, all the pre-conditions to a valid plea of estoppel inter parties or per rem judicatam must apply. All the conditions must coexist and a break in the link or chain will render the plea unsustainable. It is therefore a question of fact whether the parties and their privies, the facts in issue and the subject matter of the claim are the same as those in the current suit. See Adigun’s case (supra). It is not sufficient merely that the parties are the same. See too Chiekwe vs. Obiora (1960) 5 F.S.C. p.258 referred to in Ajakaiye vs. Military Gov. of Bendel State (supra) cited by the Applicant’s Counsel.” Per ORJI-ABADUA, JCA (Pp. 13-14, paras. E-D)
It is also imperative to restate as enunciated by the Supreme Court in Igwego & Ors vs. Ezeugo & Anor (1992) LPELR-1458(SC) that:
“Where res judicata is pleaded by way of estoppel to an entire cause of action, it amounts to an allegation that the whole legal rights and obligations of the parties are concluded by the earlier judgment, which may have involved the determination of questions of law as well as findings of fact. For the plea to succeed therefore, 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 has 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 reipublicae 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 a final one.” Abubakar vs. Bebeji Oil and Allied Products 2007. What is expected of Court in considering the application or applicability of doctrine of res judicata? Tobi, JSC, in Abubakar vs. Bebeji Oil and Allied Products Ltd & Ors (2007) LPELR-55(SC) on what is expected of Court in considering the application or applicability of doctrine of res judicata had the following to say: “In considering the application or applicability of the principle or doctrine, the Court should remind itself of the tricks the parties, at times, play to beat its application. This is the only way to meet such parties full length rather than half-length. This arises when a party, at times, include nominal or docile parties and he will be quick in telling the Court, for example, that the previous matter had three defendants as opposed to the current one which has four defendants. The inclusion of the fourth defendant could be a charade or farce. There are also instances when the party includes an additional relief or reliefs, which are inactive as functioning only as appendage or peripheral to the main issue or issues to the extent it does not add anything substantial to the main issue or issues. There are times when parties play with words to present a camouflage that the issues are different when in reality they are not. The trial Judge, in the use of the eyes of an eagle will be able to remove the chaff from the grain and decide whether the principle or doctrine of res judicata is applicable or inapplicable.”
Based on the following, it is worthy of note that for the judgment in suit No. B/55/2000 to be invoked to operate as an estoppel in the present matter under the doctrine of estoppel, or to be binding on this case and the parties herein, certain conditions must co-exist. Aniagolu, JSC, distinctly stated in Aro vs. Fabolude (1983) LPELR-558(SC) that: “In civil cases, before this principle is applied, the res (the subject matter) in contention must be the same; the issue, and the parties, the same in the new case as in the earlier proceedings. Where any of the three matters is missing in the new case, a plea of res judicata will ordinarily fail (see: Odua v. Nwanze (1934) 2 WACA 98 at 100-102). I say “ordinarily” because the principle has been applied, in the public interest of the desirability of seeing an end to litigation, to an accommodation of a wider spectrum, “not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject matter of litigation and which the parties exercising reasonable diligence might have brought forward at the time”. (See: Henderson v. Henderson 67 ER 313 at 319; cited with approval in FABUNMI v. DELEGAN (1965) NMLR 369 at 373.).”
The Supreme Court simplified it in Ajuwa vs. Odili (1985) 2 NWLR Part 9 page 710, that a successful plea of estoppel as a defence could only have been predicated upon the parties, subject matter and issues being the same. Stillon the conditions for the application of estoppel, I would make reference to the Supreme Court case of Udo vs. Obot (1989) LPELR-3297(SC) wherein it was emphasised that:
“The doctrine of estoppel operates in three different circumstances. It applies to parties in litigation or their privies in respect of matters raised and finally distinctly decided. It may also apply to issues in litigation which merely form part of matters to be decided. It may also arise by conduct of the parties.”
On this footing, can it be rightly said that the judgment obtained by the defendant now the Appellant in Suit No. B/55/2000 instituted against him by Princess Gladys Nwabudike (Nee Akenzua) is binding on the Claimant/Respondent who never derived title from the Nwabudikes nor their predecessors in title?
The lower Court at page 272 of the record restated the principles guiding at the application of res judicata and held thus:
“I find without much ado that the subject may be the same and the Judy may be final as between Chief Joe Isiche and Alhaji Abdulkarim Raymond Nwabudike but not between the parties herein. The singular fact of the parties not being the same knocks the bottom of the argument of Mr. Eddy Osifo of Counsel to the defendant. The lower Court went further to say that supposed CW1 who was the vendor of the said property was indeed aware of the pendency of the case, he was not made a party to the suit in Exhibit K3 by the Judge not exercising a discretion in making him one. Not being a party to Suit No. B/55/2000, the question of his privies having knowledge and being bound does not arise.”
The suit that gave rise to the judgment in B/55/2000 was between the Appellant as the Counter-Claimant and one Alhaji Abdulkarim Raymond Nwabudike. The judgment in B/55/2000 was given in favour of the Appellant against the defendant to the counter-claim, Chief Abdulkarim Raymond Nwabudike. The Respondent herein averred at paragraph 19 of his pleading that late Mrs. Gladys Akenzua and Alhaji Abdulkarim Raymond Nwabuidike against whom the Defendant got the said judgment were neither his predecessors-in-title in respect of the disputed land nor do they have interest whatsoever in same to warrant the Defendant attempting to enforce same judgment against him. No effort was made by the Appellant to establish the nexus between the said Alhaji Abdulkarim Raymond Nwabudike and how the Respondent, by the string of parties was a privy either in estate to the said Chief Abdulkarim Raymond Nwabudike. The Appellant never pleaded that the Respondent derived his title from his adversaries, he did not establish how the Respondent and the said Abdulkarim Raymond Nwabudike were connected to the land. He was not able to establish that the Respondent was privy in title to the said Abdulkarim Raymond Neabudike and therefore bound by that decision. The Appellant completely failed to satisfy the conditions that would have set the doctrine of estoppel rolling in this case. It is one thing to raise the defence of estoppel and it is different ball game to establish the conditions for the invocation of the same. I have no reason whatsoever to differ from the opinion expressed by the lower Court, therefore, this issue is resolved against the Appellant.
In respect of issue 2, it is clear in the pleading of the Appellant that it was Princess Gladys Nwabudike (nee Akenzua) and the Claimant who allegedly trespassed on his land in 2000 and 2006 respectively. He equally alleged that in early January, 2000, his cash crop planted on the land were uprooted and damaged by Deeper Life Bible Church, Benin in early January, 2000 at the instance of Princess Gladys Nwabudike (Nee Akenzua) aided by late B. J. Okundaye. By Exhibit K, Princess Gladys Nwabudike (Nee Akenzua) instituted suit No. B/55/2000 against him. Upon the demise of Princess Gladys Nwabudike (nee Akenzua) her son, Alhaji Abdulkarim Raymond Nwabudike was substituted for her by Exhibit K2. It is clear by Exhibit K, he was not the one who actually initiated the case.
The Defendant stated that the ownership of the land in dispute was decided in his favour but no such issue was decided between the Respondent and himself nor himself and the Respondent’s predecessors in title.
It is also instructive to note that CW1, Solomon Onaighise is not a party to this suit and there was no relief in the Appellant’s counter-claim against him. There was no specific order sought for a declaration that the Respondent purchased the disputed land from Solomon Onaghise whilst being aware of and during the pendency of Suit No. B/55/2000. It was made clear in the record of this appeal that the Appellant tried to join the said Solomon Onaghise to Suit No. B/55/2000 but the said Solomon Onaghise filed a counter affidavit challenging the application for joinder on the ground that he no longer possessed interest in the land as he had disposed of his interest thereon. The land had not been litigated upon between the Appellant and any of the Respondent’s predecessors in title. It was the Appellant who tried to join the said Solomon Onaghise and he never mentioned in his pleading that Solomon Onaghise sold the land to the Respondent otherwise when Solomon Onaghise succeeded in warding him off through the Court, he should have gone looking for the Respondent to join him. He did not know of the existence of the Respondent otherwise he would have immediately joined him. The Respondent did not purchase the land from someone that had any litigation with the Appellant’s predecessors in title. After all, it was Princess Gladys Akenzua who initially sued the Appellant until she was substituted by her son. No link was also established between Mrs. Uvbi Florence Akenzua who obtained the title and approval from the Oba and who in turn transferred her interest in the land to Solomon Onaghise and Princess Gladys Akenzua against whom the Appellant obtained his counter-claim.
The lower Court observed at page 277 of the record that the counter-claimant said that the original owner of the land acquired it from the Land Allotment Committee Ward 17H of which the original owner was a member. It is further observed that the case put forward in suit No. B/55/2000 is different from the case before it.
On the doctrine of Standing By raised by the Appellant, I would refer to Onwu vs. Nka (1996) LPELR-2711(SC) where the Supreme Court on instance of estoppel by standing by said: “The law is settled that if a party having a right stands by and sees another dealing with the property in a manner inconsistent with that right, and makes no objection while the affair is in progress, he cannot afterwards complain. See Leeds (Duke) v. Amherst (Lord) 16 LJ. Ch.5. So too, a person who knowingly stands by during litigation concerning the title to the land in which he claims ownership to or an interest in, in circumstances in which he might reasonably be expected to apply to be joined as a party to establish his claim may find himself bound by the judgment in the suit even though he was not a party to the suit in which the judgment was given. See Lateju v. Iyanda (1959) SCNLR 634; (1959) 4 FSC 257 at 259; Alhaja Sabalemotu Kaiyaoja and Others v. Egunla (1974) 12 S.C. 55.”
See too, Obineche vs. Akusobi (2010) 12 NWLR Part 1208 page 383 where it was held: ”In the case of Chukwuma v. Ifeloye (2008) 8 NWLR pt. 1118 pg. 204 at pages 231-232, Oguntade JSC (Rtd.) aptly gave a simple illustration of standing by – by saying that: – “Where a land owner stood by and knowingly by his inaction allowed a stranger to develop the land in good faith without the owner appraising the stranger the defect of his title, then the doctrine of acquiescence and standing may be properly invoked to estop the owner from reaping the benefit of the stranger’s labour.” Solomon v. Mogaji (1982) 11 SC 1.”
There is no evidence that the Respondent stood by and watched the Appellant develop the property without him confronting him or dealt with the same in a manner inconsistent with his right over the property. Issue three is resolved against the Appellant.
In respect of issue four, I would reproduce the appraisal of the evidence made by the lower Court on the issue of proof. It said thus:
“The claimant by paragraphs 3, 4, 5 (i)-(vi) 6, 7, 8, 9, 10, 11, 12, 13 of the statement of claim stated how he acquired title to the land in dispute. The lawful attorney to the claimant in her statement on oath which she adopted narrated how the claimant acquired title to the land in 2006. The vendor of the land to the claimant CW1 also gave evidence in line with their pleadings so also CW3. The surveyor identified the property survey plan and also made a litigation survey plan. The defendant also testified in line with his statement of defence in paragraphs 4, 6. 14, 15, 16, 17. The defendant gave evidence along those lines.
The claimant tendered Oba’s approval Exhibit A which was given on 10/4/61 in favour of his predecessor in title. Exhibit B was tendered as receipt from the assignor Chief Solomon Onaghise on 19/5/2006. The property survey of the land in dispute was tendered as Exhibit D. The litigation survey plan with structures by the parties including a six flats storey building by claimant. Exhibit E. The defendant has no credible and admissible title document. All the documents tendered are photocopies and no foundation was laid they were certified by the High Court Assistant Chief Registrar who was not shown to have custody of the original copy. It does appear to me that the claim to title to the land in dispute is the default judgment obtained against another claimant to the title to the same land who has no bearing with this present claimant who the defendant in paragraph 9 of his statement of defence he stated thus” and avers that he had never known or met the claimant or his Attorney before June 2010 when his Attorney was in Court to ask for a joinder in suit NO.B/55/2000.”
With the above averment, it is therefore clear that before June 2010, the claimant was unknown to the defendant and his claim to the title to the land in dispute was separate and distinct from the claim to the same land by the late Princess Gladys Akenzua. It is not unusual to have more than two claimants to the same parcel of land and each case will be determined on its own merit. It is part of the general law that in a case of competing titles, once a claimant succeeds in tracing his title to a person whose title to ownership has been established, then the onus shift upon the defendants to show that his own possession of such a nature as to oust that of an original owner. It is worrisome and strange that the defendant has no witness to support his claim to title to the land. This is more so when in the defendant’s pleadings and statement on oath he is very vague as to his claim to possession of the land when he refers to an unnamed “authorized licensee’ he put on the land for 25 years, he claimed to have felled rubber trees, graded the land after payment of compensation to rightful owner identified and introduced to him by his assignor and the ward pointer for ward 17H. The production of documents of title is one of the recognized methods of proving title to land. See Idundun vs. Okumagba (1976) 12 SC31 at 37. Such a document of title must be admissible in evidence and be of such a character as to be capable of conferring valid title on the party relying on it. It is not permissible to support a non-existent root of title with acts of possession. See Ndukwe V. Acha (1985) 5 SCNJ 28 at 38 – 39. It is pertinent to point out at this stage that where as in paragraph 4 of the written statement on oath he stated that ‘I acquired the said piece of land by purchase in 1975 from one Nowoghomwenma Akenuwa’ in Exhibit K3 so heavily relied upon in Suit No.B/55/2000, the learned trial Judge stated that “the counter claimant thereupon gave evidence on oath and he called no witness.. He said in his evidence that he bought the land in 1975 from one Pa Alemi now deceased.
The counter-claimant said the original owner of the land acquired it from the Land Allotment Committee Ward 17H of which the original owner was a member’. This case put forward in suit NO. B/55/2000 is different from the case before this Court.
It is also trite that where there are two claimants to a parcel, declaration of title is made in favour of the party that proves better title. See Adole V. Gwar (2008) 5 MJSC 38 at 67-68.
I find that even if it is taken that the defendant is ascribed any possession, the possession of claimant is established in that when the defendant went to execute the warrant of possession after the judgment in B/55/2000, he met the gate locked and a security man in post. It is long been held that where two competing parties claim to be in possession of land in dispute in a case, the law ascribes possession to the one with the better title. See Mogaji V. Odofin (1978) 4 SC 91 at 96 Aromire V. Awoyemi (1972) 1 All NLR Pt) 101 at 112.
It is my finding that from the evidence before me, I believe the claimant by his witnesses and exhibits have a better title over the land. It may be that the defendant in possession of the land in dispute had and exercise right to possession of the land when he effectively waded off other trespassers like Princes Gladys Akenzua in suit No. B/55/2000. His counterclaim against the claimant for declaration of title to the land in dispute must succeed on the strength of his case.
He failed to prove better title, he tendered documents that are not receivable in evidence as proof of title. It is obvious the claimant has proved better title even if he considered him a trespasser. It is settled law that a trespasser on land can maintain an action for trespass against anyone, except the true owner, who interferes with his possession. See Ajukwara V. Izuoji (2002) 9 MJSC 128 at 139. Consequently, the defendant’s counterclaim is adjudged lacking in merit in that the judgment in suit NO. B/55/2000 remains subsisting for the claim by Alhaji Abdulkarim Raymond Nwabudike who failed to show better title, however the claim by the claimant herein succeeds as he has been able to show a better title over the similar claim to title by virtue of the judgment in suit No. B/55/2000 over the same parcel of land by the defendant herein.”
I completely agree with the findings of the lower Court as to the quality of evidence adduced by the Appellant. This issue is also resolved against the Appellant.
In the end, and for all the reasons I have given above this appeal will be and is hereby dismissed with no order as to costs.
JAMES GAMBO ABUNDAGA, J.C.A.: I have been availed a draft of the judgment delivered by my learned brother, Theresa Ngolika Orji-Abadua, JCA. I adopt the reasoning and conclusion reached therein that the appeal lacks merit, and is hereby dismissed.
I make no order as to costs.
ADEMOLA SAMUEL BOLA, J.C.A.: I am privileged to have read in draft, the leading judgment delivered by my learned brother, THERESA NGOLIKA ORJI-ABADUA, PJCA. I am in total agreement with his reasoning and conclusion. I equally dismissed this appeal with no order as to cost.
Appearances:
B.U. Igbinedion, Esq., with him, Osakpolor Orobor, Esq. For Appellant(s)
P.O. Osaghae, Esq. For Respondent(s)
