MRS. KEHINDE OGUNKOYA v. MR. SUNDAY GEORGE (2013)

MRS. KEHINDE OGUNKOYA v. MR. SUNDAY GEORGE

(2013)LCN/6145(CA)

In The Court of Appeal of Nigeria

On Thursday, the 2nd day of May, 2013

CA/I/227/08

RATIO

RES JUDICATA: WHEN THE PLEA CANNOT BE FOUND ON A SUBSEQUENT ACTION

In the case of OKORONKWO & ORS V. CHUKWEKE & ANOR 1992 1 NWLR (PT. 216) 175 at 192 where the case was dismissed for want of prosecution the plea of res judicata could not be founded on a subsequent action because there was no trial on the merits. Onu J.C.A., at page 192 held thus:
“The case was merely dismissed for want of prosecution by the same trial judge, Ononuju, J., who also tried the instant case now on appeal. In dismissing Exhibit ‘C’ title was not awarded to the instant Respondents, and they could therefore not rely on it to prove their title to the land in dispute. As a matter of fact judgment was not awarded to them since the case was not tried on its merit. It therefore could not even operate as res judicata as dismissal for want of prosecution not being a dismissal on merit, cannot ground a plea of res judicata…”In essence, the plea of res judicata could not be sustained on the grounds that the earlier suit was dismissed for want of prosecution and not tried on the merits. In the above case it was also decided that a previous judgment between parties which did not decide distinctly the issues being canvassed in the latter case cannot operate as estoppels, see also UDO V. OBOT (1989) 1 NWLR (PT. 95) 59 at 72.PER CHIDI NWAOMA UWA, J.C.A.

LAND LAW: PARTY IN ACTION FOR DECLARATION OF TITLE CANNOT SUCCEED UNLESS HE CAN PROVE THE BOUNDARIES CLEARLY

It is trite law that a party in an action for declaration of title cannot succeed unless he can prove clearly the boundaries of the land which he claims. The burden of establishing such boundaries by adducing credible evidence is on the Plaintiff, this is to enable the parties know precisely the area to which the judgment relates, see MAKANJUOLA V. BALOGUN (1989) 3 NWLR (PT.108) 192 and the case of ABOYEJI V. MOMOH (1994) 4 NWLR (PT.341) 646.PER CHIDI NWAOMA UWA, J.C.A.

COURT: THE PRIMARY DUTY OF THE TRIAL COURTS

COURTS: WHEN APPELLATE COURT WILL INTERFERE IN THE PRIMARY DUTY OF THE TRIAL COURTS
The duty of appraising evidence, giving credit to same and making findings of facts based thereon is primarily the duty of the trial court; an appellate court would only interfere with such findings, if they are proved to be perverse. In the present case, the findings of the trial court were supported by evidence and this Court would not interfere with such findings as they have not been shown to be perverse, see, ELENDU V. EKWABA (1995) 3 NWLR (PT.386) 704; ELENDU V. EKWOABA (1998) 12 NWLR (PT. 578) 320; OLAWOAKE V. SALAWU (2000) 11 NWLR (PT. 677) 127; OGBU V. ANI (1994) 7 NWLR (PT. 355) 128; OGBUOKWELU V. UMEANA FUNKWA (1994) 4 NWLR (PT.341) 676; OFONDU V. NIWEIGHA (1993) 2 NWLR (PT. 275) 253 and OYEBAMIJI V. FABIYI (2003) 12 NWLR 271.PER CHIDI NWAOMA UWA, J.C.A.

JUSTICES

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

Between

MRS. KEHINDE OGUNKOYA Appellant(s)

AND

MR. SUNDAY GEORGE
(For himself and on behalf of family of the Late Pa Idowu George) Respondent(s)

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the decision of the Oyo State High Court sitting at Ibadan presided over by O. I. Aiki, J, delivered on the 31st day of March, 2008.

The Respondent as plaintiff instituted this action in a representative capacity against the Appellant’s husband who was the original defendant in the trial court. The appellant was later substituted for her husband upon his demise pursuant to an order of court.

The Respondent by his Amended statement of claim dated and filed on the 28th day of December, 2006, claimed against the Appellant as follows:
“(a) DECLARATION that for and by virtue of Certificate of Statutory Right of Occupancy dated 6th of May, 1987 registered as No.1 at Page 12749 granted by the Governor of Oyo State in favour of the Defendant, the Defendant in the said document is only entitled to the area or parcel of land measuring approximately 1792.002 sq.mts, and that any attempt by the Defendant to use this document to encroach, seize, or trespass on the Plaintiff’s land covered by a registered Deed of conveyance dated 7th of November, 1977 and registered as No. 2 at page 2 in Volume 2205 of the Ibadan Lands Registry and measuring approximately 6626.87 4 Sq.mts shall be null and void of no effect.
(b) DECLARATION that the Defendant having purchased his land from one Mr. Olufemi Bamishe whose land was registered as No.32 at Page 32 in Volume 1832 of the Register of Deeds Ibadan with beacons Nos. WB 7908, WB 7967, WB7965, WB7964 AND WB7963 can only take possession of this same land and cannot validly erect a structure inside the land covered by a Registered Deed of Conveyance registered as No.2 at Page 2 in Volume 2205 of Land Registry, Ibadan with Beacon AM1253, AM5562, AM1254, AM1255, CC4537, CC4538, CC4539, CE2236 and CE2235, measuring approximately an area of 6626.874 Sq.mts.
(c)AN ORDER of Court directing the Defendant to take possession of the land measuring 1792.002 Sq.mts as covered by the Certificate of Occupancy Reg. 1/1/2749 of 6/5/87 whether inside or outside land registered as No. 2/2/2205 of Ibadan Lands Registry.
(d) AN ORDER OF Perpetual Injunction restraining the Defendant from further trespassing, seizing, disturbing or harassing the Plaintiff family under the pre of using a certificate of occupancy covering 1792.002 Sq.mts to seize the Plaintiff’s family entire land measuring 6626.874 Sq.mts and registered as No. 2/2/2205 of Lands Registry, Ibadan.”

The Appellant in her defence raised the defence of res judicata as well as other defences. The plaintiff called two witnesses while the defendant was the sole defence witness. At the close of trial, in the trial judge’s judgment, claims (a), (b), and (d) were granted while(c) was refused. It is against the decision that this appeal was lodged.

The background facts as made out by the Appellant is that on 8th September, 1975, the Appellant’s husband bought a plot of land from one Olufemi Bamishe measuring 2143.22m2 and the sale was evidenced by a sale agreement dated 8th September, 1975.
On 6th May, 1987, the Governor of Oyo State issued a certificate of statutory Right of Occupancy in respect of the said plot of land in favour of the Appellant’s husband.

The Appellant’s husband thereafter commenced the construction of a building on the said plot, in the same 1987 shortly after the commencement of the building, the Respondent’s elder brother, Pa Idowu George started to lay claim over the said plot of land and a dispute arose between the Appellant’s husband and the said Respondent’s elder brother, Pa Idowu George to the knowledge of the Respondent and his family members.

In 1990 Pa Idowu George initiated an action at the Oyo State High Court, Ibadan Judicial Division where he sought orders of the court to nullify the sale Agreement and the Certificate of Statutory Right of Occupancy granting the Appellant interest in the land in dispute.

In 1992, the trial court ruled that the action be dismissed on the ground that the suit lacked any cause of action. It was contended that there was no appeal against the Ruling.

In 2000, Pa Idowu the initiator of the action died. His younger brother, the Respondent filed the present suit against the Appellant’s husband in 2003.

Before trial, the Appellant’s husband died and he was duly substituted by the Appellant via an order of court in 2005. The appellant dissatisfied with the grant of the three reliefs and refusal of one, filed her Notice of Appeal from which three issues were formulated for determination. They are:
“(i) Whether or not the trial court ought to have assumed jurisdiction by entertaining the suit in the first place having regard to the provisions of the Limitation Law of Oyo State.
(ii) whether or not the learned trial judge ought to have upheld the plea of res judicata raised by the Appellant in her defence. (Grounds 1 and 2).
(iii) whether or not the Respondent was entitled to any of the reliefs claimed before the lower court. (Grounds 3, 4, 5, 6 and 7).

While on his part, the respondent formulated the following issues for the determination of the Appeal. They are:-
“1. whether the plea or defence of Res-Judicata is open or available to the defendant in this case with particular reference to the decision in Suit No. I/321/90 and later in Suit No. I/311/03 now on Appeal.
2. Whether the statute of limitation or limitation law is relevant to the determination of this Appeal or even relevant to the case at hand before the High Court and judgment.
3. Whether on the evidence plead (sic) before the lower court the plaintiff was entitled to judgment reclaiming his 9 plots of land from the usurper with a land holding of just 2 plots of land by his certificate of occupancy who jumped into the respondent’s land at the CENTRE and erecting there on a Workshop.”

In arguing the appeal, the learned counsel to the Appellant Idowu Lanre Alabi Esq. appearing with O.F. Awomolo (Miss) in respect of his issue one adopted and relied on his Appellant’s brief dated and filed on 31st December, 2009 which was deemed as properly filed and served on 24th March, 2010 and his reply brief dated and filed on 5th November, 2010 in urging us to allow the appeal and set aside the judgment of the trial court.

On the Appellant’s first issue it was argued that the dispute over the ownership of the land in question between the parties arose in 1987, the dispute culminated in the suit at the High Court of Oyo State filed in 1990 between the parties therein and from whom the focus of the Respondent and Appellant to initiate and defend this action respectively accrued. Section 3 of the Limitation Law of Oyo State was cited and relied upon in arguing that the present action as at the time it was instituted was statute barred having been brought after the expiration of ten years from the date the right of action accrued. Reliance was placed on a plethora of legal authorities which include B.O.N. LTD. V. SALEH (1999) 9 NWLR (PART 618) 331 AT 349 PARAGRAPH F – G; EGBE VS. ADEFARASIN (NO.1) 1985 1 NWLR (PART 3) 549; EMIATOR V. NIGERIAN ARMY (1999) 12 NWLR (PART 631) 362 AT 372. PARAGRAPHS E-F: F.R.I.N. V. GOLD (2007) 11 NWLR (PART 1044) SC 1 AT 16, PARAGRAPHS F -H; EBOIGBE VS. NNRC (1994) 5 NWLR (PART 347) 649; I.T.F. VS. N.R.C. (2007) 3 NWLR (PART 1020) 28 AT 61 PARAGRAPHS F – G amongst several others. In these cases “cause of action” was defined and when it accrues. It was argued that the Respondent ought to have instituted this action at the lower court on or before 1992, ten years after the accrual of the cause of action but that this action was instituted on 16th April, 2003, sixteen years after the accrual of the cause of action, see page 1 of the records of appeal. It was contended that the trial court ought not to have entertained the matter. We were urged to dismiss the action for being statute barred.

The Appellant’s second issue is as to whether the learned trial judge ought to have upheld the plea of res judicata raised by the Appellant in her defence. The learned counsel to the Appellant defined the doctrine of res judicata to the effect that once judgment has been delivered by a court of competent jurisdiction, the judgment constitutes a bar to any subsequent action involving the same parties or their privies over the same subject matter. See, EGWA V. EGWA (2007) 1 NWLR (PART 1014) 71; CARDOSO V. DANIEL & ORS. (1986) 2 NWLR (PART 20) 1. While relying on the case of FADIORA V. GBADEBO (1978) 3 SC 219; EKPESE V. OSITA (1978) 6 – 7 SC 187; EZENWA V. KAREEM (1990) 4 NWLR (PART 138) 258 and SHONEKAN V. SMITH (1964) 1 ALL NLR 168, the learned counsel to the Appellant gave the conditions that must co-exist for the doctrine of res judicata to operate.

The learned trial judge dismissed the plea of res judicata raised by the Appellant.

We were urged to peruse the contents of Exhibits D6 and D7 (the Statement of Claim, Writ and Judgment in the 1990 case) and the originating processes in the present case (pages 1 – 5 and 14 – 22 of the printed records of Appeal) and hold that the issues for determination in the two suits are the same.

It was argued that the trial court was in error when it held that the order of dismissal in the previous suit was not a final one that is, the decision of 1990 in Exhibit D7. Further, that it was wrong for the trial court to have held at page 117, lines 3 – 5 of the printed records that the dismissal order made in Exhibit D7 amounted to a striking out, this was argued to be likened to a review or setting aside of the decision of a court of equal jurisdiction. It was submitted that a court could make a valid order of dismissal which could sustain a plea of res judicata without necessarily going through full trial, for instance where the action discloses no cause of action. We were urged to hold that Exhibit D7 amounted to a proper dismissal, a final decision and not a mere striking out.
Contrary to the decision of the trial court, it was submitted that the defence of res judicata is not a mere technicality but a defence which borders on jurisdiction. We were urged to resolve this issue in favour of the Appellant.

On the Appellant’s third issue, as to whether the respondent was entitled to any of the reliefs he claimed, it was the contention of the learned counsel to the Appellant that the Respondent did not adduce enough evidence to support his claim for perpetual injunction even though the location and size of the land were put in issue. It was argued that the claim ought to have been dismissed, See the cases of ABOYEJI V. MOMOH (1994) 4 NWLR (PART 341) 646, OKEDARE V. ADEBARA (1994) 6 NWLR (PART 349) 157 and KODILINYE V. ODU (1935) 3 WACA 336 amongst others. We were urged to hold that the Respondent was not entitled to any of his claims before the lower court due to failure to ascertain the exact size or identity of the property he claimed, to allow the appeal and set aside the judgment of the trial court.

In response to the arguments of the learned Appellant’s counsel, the learned counsel to the Respondent Shonibare Olatunde Esq. appearing with P. O, Ajaponna Esq. adopted and relied upon his brief of argument dated 20/10/10, filed on 21/10/10, deemed properly filed and served on 25/10/10 in which he emphasized on paragraph 6.0 at page 12 of his brief, to the effect that an issue must arise from the judgment of the court, for this and other reasons argued in the brief, urged us to dismiss the appeal.

In respect of his first issue, it was submitted that in Suit No. I/390/90 which the Appellant relied upon in raising the plea of Res judicata that there was no hearing or full adjudication leading to the final determination of the rights of the parties or the calling of evidence to establish the entitlement to the land in dispute. It was contended that in Suit No. I/311/2003 (the present suit) the issue of whether a suit discloses any reasonable cause of action or the setting aside of any title document or land instrument did not feature which distinguishes it from I/390/90. It was submitted that the issues in the two suits are not the same. Further, that if the issues had been the same between the parties, then that as a general rule, neither party would be allowed to litigate over the issue again, reliance was placed on the cases of FIDELITIES SHIPPING CO. LTD. VS. ESPARTCHILO (1966) 1 QBD 630, LAWAL VS. CHIEF (1978) 3 S.C. 219; CARDOSO V. DANIEL & ORS. (1986) 2 NWLR (PART 20) P.1 AND IYAYI VS. EVIEGBU (1987) 12 S.C. 352.

On their second issue, it was argued that the limitation law has nothing to do with this case. Further, that the Appellant had taken out an action which lasted between 1990 – 2003 vide Suit No. I/443/99 which was dismissed in 2003 when the Respondent as plaintiff instituted Suit No. I/311/2003 now on appeal. It was argued that the Respondent did not sleep over his right and had acted timeously in challenging the infringement of his right. The learned counsel agreed that what determines whether an action is statute barred is for the court to determine when the cause of action accrued, which is when time begins to run. See, ADIMORA VS. AJUFO (1988) 3 NWLR (PART 80) AT PAGE 1, EGBE VS. ADEFARASIN (NO.2) 1987) 1 NWLR PART 47 AT 1 and FADARE V. A.G. OF OYO STATE (1982) 4 S.C. 1. Also relied upon are the case of HARUNA BAKO KOLO VS. FIRST BANK OF NIGERIA PLC (2003) 3 NWLR (PART 806), IBRAHIM VS. OSEIN (1987) 4 NWLR 287 (PART 67) AT PAGE 965 and EMINATOR V. NIGERIA ARMY (1999) 12 NWLR PART 631 AT PAGE 362. We were urged to resolve this issue in favour of the Respondent.

On their third issue, as to whether on the balance of probabilities and evidence the Respondent was not entitled to judgment. It was argued that the Appellant ought not to have relied only on the Ruling in Suit No. I/390/90 in the lower court and his plea of res judicata in that the right of the parties was not determined. Further, that the motion that gave rise to the ruling decided nothing, thus it is outside qualifying for use of the plea of res judicata.

It was also argued that the appellant’s issue one was not covered by any of the grounds of appeal in his notice, at pages 189 – 194 of the records. We were urged to hold that the appellant’s first issue is incompetent and should be dismissed as this court lacks jurisdiction to determine same, reliance was placed on the case of VINCENT EGHANEVBA VS. DR. OROBOR OSAGIE (2009) (PART 2) S.C.M. PAGE 38 AT PAGE 40, PARAGRAPH B.

On the identity of the land claimed, it was argued that the extent was well known by the Respondent as Plaintiff, the evidence of PW1, the licensed surveyor was referred to in support of this but, also submitted that the learned trial judge held that the plaintiff was the person entitled to the land claimed by him and also awarded the possession of the land to him without any doubt that he was so entitled having considered the totality of the evidence placed before him. We were urged to dismiss the appeal.

The learned counsel to the Appellant in reply adopted and relied on his reply brief of argument dated and filed on 5th November, 2010.

The learned counsel condemned the language used in the Respondent’s brief as same was said to be insulting to say the least, reliance was placed on the case of NDUKWE V. L.P.D.C. (2007) 5 NWLR (PART 1026) 1 AT 59. Secondly, it was submitted that the record of appeal is what clearly shows what transpired before the lower court, therefore that counsel at the appellate level of a case need not have participated in the lower court to know what transpired and faulted the learned counsel to the Respondent’s argument that the learned Appellant’s counsel did not know what transpired in the lower court not having participated in the case then, See, FAWEHINMI CONTRUCTION COMPANY LTD. VS. OBAFEMI AWOLOWO UNIVERSITY (1998) 6 NWLR (PART 553) 171 AT 183 and MAVOLA V. MARAM (1994) 3 NWLR (PART 331) 197 AT 210.

On non filing of a dispute plan, it was the submission of learned counsel that it is not the law that the adverse party must file a counter or composite plan where the land in dispute can be easily identified, See AKPAN V. OTONG (1996) 10 (PART 476) 108 AT 127, OJIBAH VS. OJIBAH (1991) 5 NWLR (PART 1919) 296 AT 311, OSHODI V. EYIFUNMI (2000) 11 WRN 86 AT 114 and AWOYOOLU V. ARO (2006) 4 NWLR (PART 971) 481 AT 498.

On failure to obtain the leave of court before arguing a jurisdictional issue, in the Appellant’s issue one, (not raised in the lower court) it was the contention of the learned counsel that no leave is required, and that the statute of limitation or limitation law being a jurisdictional issue, it could be raised at any stage of the proceedings and could be raised suo motu by the trial court or on appeal. It was argued that the Respondent by his admission on record, he was clearly out of time in filing before the lower court the action leading to this appeal.

On the faulting by the learned counsel to the Respondent of evidence extracted under cross examination from the then plaintiff’s witness and the contention that same was not pleaded, he relied on a decision of this court in which the apex court’s decision was quoted and relied upon extensively, see HARUNA V. KASHA (2010) 7 NWLR (PART 1194) 504 AT 646-467, GAJI VS. PAYE (2003) 8 NWLR (PART 823) 583 AT 611. It was submitted that evidence extracted through cross examination is as good as that from evidence in chief.
Finally, it was submitted that the Respondent who did not cross-appeal formulated three issues for determination and did not tie them to any of the grounds of appeal filed by the Appellant. We were once again urged to allow the appeal.

From the issues formulated by the parties, I would utilize those of the Appellant’s in determining this appeal. Even though the learned counsel to the Appellant has faulted the Respondent formulating issues even though he did not cross appeal, looking at the issues formulated by the Respondent, they correspond with those of the Appellant’s. The Appellant’s first issue tallies with the Respondent’s second issue, the second issue with Respondent’s first issue, while the Appellant’s third issue tallies with the respondent’s issue three, only the wordings are slightly different but, the crux of the issues are the same.

It is true that the Respondent’s issues were, on the face of the brief not tied to the grounds of appeal but, it is noteworthy that indicating in the brief the ground or grounds of appeal covered by an issue as much as it is highly desirable that it should be indicated (also acknowledged by the learned counsel to the Appellant) not doing so does not render the issues so formulated incompetent. It is only required or expected, to assist the court in making the work of the court a little bit less tedious in saving us the time and trouble of making out which ground(s) of appeal covers the issue. This is supported by the case cited and relied upon by the learned counsel to the Appellant, see U.B.N. LTD. VS. ODUSOTE BOOKSTORES LTD. (1995) 9 NWLR (PART 421) 558 at 578, paragraph A, where the Apex Court in this respect held thus:
“While it is true that the Rules as regards filing of briefs of argument do not specifically state that Counsel must indicate in his brief which of the ground or grounds of appeal are covered by an issue, it is highly desirable that should be done. This will tremendously assist the appellate court in relating arguments to the issue to the ground of appeal they are related, thus saving the time of the court and enhancing the quick disposal of the appeal.”

The Appellant’s first issue is as to whether the trial court ought to have assumed jurisdiction by hearing the matter having regard to the provisions of the Limitation Law of Oyo State?

As stated above, this issue was argued in the Respondent’s second issue. Both Counsel dwelt on whether the action in the trial court was statute barred or not and whether the Limitation Law of Oyo State is applicable or not. In every appeal the originating process is the Notice and grounds of appeal. Its competence or otherwise affects the issues for resolution and obviously the final decision. In the present case, the limitation law issue was raised outside the grounds of appeal. The learned Counsel to the Appellant argued that since it borders on jurisdiction it could be raised anytime at the trial court or on appeal as in this case and could be raised suo motu by the Court. While the learned Counsel to the Respondent argued extensively that the leave of court was not obtained to argue the fresh issue of limitation law not raised in the trial court, the learned Counsel to the Appellant also responded accordingly to the effect that no leave was required to argue his issue one as it borders on jurisdiction.
The point here is not whether leave was necessary or whether obtained or not, I do agree with the argument of the learned Counsel to the Appellant in paragraph 1.16 of his reply brief to the effect that a party to a litigation is entitled to raise an issue of want of jurisdiction of the court of trial at any stage of the proceedings even on appeal. Also, that the trial court or the appellate court could raise the issue of jurisdiction suo motu at any stage. The reason is that jurisdiction is the foundation of any and all actions. See, ASEIMO V. ABRAHAM (1994) 8 NWLR (Pt.361) 192 at 209 and ADERIBIGBE V. ABIDOYE (2009) 10 NWLR (PT. 1150) 592 at 615 amongst others relied upon by the learned Counsel to the appellant. I am of the view that the issue of jurisdiction when raised must be properly done. The learned Counsel to the Respondent had responded fully to the Appellant’s argument on the limitation law and realized the position of the law towards the end of his brief while arguing his third issue, in paragraph 6.0 of his brief, albeit briefly.

I have examined the seven grounds of appeal, none touches on the Statute of Limitation or the action being statute barred. The learned Counsel to the Appellant on the face of his brief indicated the Grounds of appeal that relate to his issues two and three but, his issue one was not tied to any ground because his first issue was not distilled from any of the grounds of appeal. The position of the law in this regard is clear.
It is trite law that an issue for determination in an appeal must arise or derive from the grounds of appeal filed. Where any issue is not covered by a ground of appeal, that issue is incompetent and is liable to be struck out. In the present case it is clear that the Appellant’s first issue is not tied to any of his grounds of appeal. In the case of NIGER PROGRESS LTD. V. NORTH EAST LINE CORPORATION (1989) 3 NWLR (PT. 107) 68, the Apex court made it quite clear that questions or issues for determination in any appeal must be culled from the grounds of appeal, The above decision was followed by this Court in the case of MERCANTILE BANK OF NIGERIA PLC V. NWOBODO (2000) 3 NWLR (PT.648) 297. In another decision of this court in OPUZIBAU V. KWOKWO (2002) 1 NWLR (PT.747) 116 at 130, His Lordship, Nsofor JCA (as he then was) held thus in this regard:
“In my view, the issue not being backed by a ground of appeal hangs in the air. It ought to be discounted and disregarded.”
Similarly, Mohammed, JCA (as he then was) in ELEJA V. BANGUDU (1994) 3 NWLR (Pt.334) 534 at 540 paragraph E held thus:
“It is trite that this Court should ordinarily confine itself to the grounds of appeal filed and canvassed before it and to the issues that naturally arise out of those grounds of appeal.
Any question or issue for determination which has no reference or relevance to any ground of appeal, should not be considered by the appellate court. WESTERN STEEL WORKS LTD. V. IRON AND STEEL WORKERS UNION OF NIGERIA (1987) 1 NWLR (PT.49) 284.”

There is no doubt that the Appellant’s first issue is not tied to any of the grounds of appeal.

The Appellant’s first issue is incompetent, same is hereby struck out.

The Appellant’s second issue is as to whether the learned trial judge ought to have upheld the plea of res judicata raised by the Appellant in her defence. It is necessary from the onset to define what a plea of res judicata is and instances when the plea arises, as well as need to plead and prove same.

A plea of res judicata arises where an issue had earlier been adjudicated upon by a court of competent jurisdiction and the same issues come up again in any subsequent proceeding between the same parties or their privies. It applies whether the point involved in the earlier decision is one of fact or law, or mixed fact and law, see MALGIT V. DACHEN (1998) 5 NWLR (PT. 550) 384 at 391. The rule of res judicata is derived from the maxim of nemo debet bis vexari pro ladem cause must be specifically pleaded and proved by the party asserting it, see AKIBU & ORS V. ODUNTAN & ORS (1992) 2 NWLR (PT. 222) 210 at 229.

For the defence of res judicata to succeed there are essential ingredients or conditions that must co-exist or that must be satisfied. These are:
(a) The same question must be for decision in both proceedings (subject matter and the issues).
(b) The decision relied upon to support the plea must be a final one by a court of competent jurisdiction.
(c) The parties must be the same either per se or by their privies.
See, FADIORA & ANOR, V. GBADEBO (1978) 3 SC 219; BAMISHEBI V. FALEYE (1987) 2 NWLR (PT. 54) 51; IYOWUAWI V. IYOWUAWI (1987) 4 NWLR (PT. 63) 61 and MALGIT V. DACHEN (supra). Also, NWANERI V. ORIUWA (1959) SCNLR 316; ALAO v. AKANO (1988) 1 NWLR (PT. 71) 431; KUUSU V. UDAN (1990) 1 NWLR (PT.127) 421 and OFEM & ANOR V. EJUKWA & ORS (1994) 2 NWLR (PT.326) 303 at 315.

Both parties are agreed on the conditions. It is true that in determining a cause of action the writ of summons and statement of claim must be looked at as a whole, as rightly argued by the learned Counsel to the Appellant. In the present case the Appellant agreed that the learned trial judge rightly held that the parties in the previous Suit No. I/321/90 and the present one, Suit No. I/311/03 are the same; page 115, lines 8-20 of the printed records.

The Plaintiff in the 1990 case (earlier suit) is the elder brother of the plaintiff in the present case, while the Defendant in the present case is the wife of the original defendant therein, she substituted her deceased husband in the present suit. From the contents of Exhibit D6 (the claim before the then trial court) and Exhibit D7 (the Ruling of 16th January, 1992 in respect of the claim in Exhibit 6). Also, that by paragraphs 3 and 8 of Exhibit D6 and paragraphs 3 and 4 of the Plaintiff’s Amended Statement of Claim in the present case, the same land is the subject matter of the suit. Exhibits P2, D1 and D5, title documents were relied upon by the Plaintiff in both suits.

From the submissions of the learned Counsel to the appellant in his brief, he has faulted the resolution of the issue of res judicata against the Appellant by the trial judge who dismissed same. The reasons for the dismissal were given as follows:
(a) The issue raised in the suit filed in 1990 as shown in Exhibit D7 is different from the instant case.
(b) The decision of the Court in Exhibit D7 was not final.
(c) The defence of res judicata as raised by the Appellant was a mere technicality.

In effect, the trial court upheld part of the conditions as having been met by the Appellant in raising the plea of res judicata while others were not met. The crux of the appellant’s second issue is whether he met the requirements found deficient by the learned trial judge.

From what is required (writ of summons and statement of claim) in determining a cause of action and issues raised in an action can it be said that the issues raised in the suit filed in 1990 as shown in Exhibit D7 is the same as those raised in the present suit?

On the issues raised, from the claim in the previous suit and the present one, the reliefs are not the same. It is pertinent to note that in the previous suit I/321/90 the Appellant as Defendant before the trial court commenced, filed an application that the writ be set aside for not disclosing any cause of action amongst other prayers. The application was granted and the case was dismissed. The Suit was not heard on the merits. In my respectful view and contrary to the argument of the learned Counsel to the Appellant, as rightly held by the learned trial judge, the decision of the court in Exhibit D7 was not on the merits, there was no hearing at all of the substantive suit which would have determined the rights of the parties. I have read the decision in BABATUNDE V. P.A.S. & T.A. LTD (2007) 13 NWLR (PT.1050) 113 at 154, Paras. F-H relied upon by the learned counsel to the Appellant where it was held that an order of dismissal in a discontinued matter could give rise to a plea of res judicata, as well as others relied upon along the same line, these cases are distinguishable from the present case in that in Babatunde’s case, the earlier action was discontinued following which a dismissal order was made.

The Apex Court held that a court should be slow or exercise restraint before dismissing a discontinued matter, pages 148-149, paras E-C, p.154, paras. E-H of Babatunde’s case (supra). On the contrary, in ELEJA V. BANGUDU (1994) 3 NWLR (PT. 334) 534 at 541, paras G-H along the line of cases referred to above, this court frowned at a dismissal order by the trial court where the Plaintiff’s case failed based on a technical hitch and the trial court made an order of dismissal, the appeal was allowed and the order of dismissal substituted for a striking out order. These cases are therefore not applicable to the present case.

In my humble but firm view, every case must be examined along with its surrounding circumstances. Babatunde’s case was in respect of a discontinued action that was part heard, Bangudu’s case also went to trial. The previous case did not get to the trial stage but was disposed of on an application that the statement of claim disclosed no cause of action which gave rise to the Ruling, Exhibit D7.

In the case of OKORONKWO & ORS V. CHUKWEKE & ANOR 1992 1 NWLR (PT. 216) 175 at 192 where the case was dismissed for want of prosecution the plea of res judicata could not be founded on a subsequent action because there was no trial on the merits. Onu J.C.A., at page 192 held thus:
“The case was merely dismissed for want of prosecution by the same trial judge, Ononuju, J., who also tried the instant case now on appeal. In dismissing Exhibit ‘C’ title was not awarded to the instant Respondents, and they could therefore not rely on it to prove their title to the land in dispute. As a matter of fact judgment was not awarded to them since the case was not tried on its merit. It therefore could not even operate as res judicata as dismissal for want of prosecution not being a dismissal on merit, cannot ground a plea of res judicata…”
In essence, the plea of res judicata could not be sustained on the grounds that the earlier suit was dismissed for want of prosecution and not tried on the merits. In the above case it was also decided that a previous judgment between parties which did not decide distinctly the issues being canvassed in the latter case cannot operate as estoppels, see also UDO V. OBOT (1989) 1 NWLR (PT. 95) 59 at 72.

In the present case, can it be rightly said that the decision in Exhibit D7 the earlier suit between the parties determined to finality the issues raised therein or the ones now at stake?, for instance relief (a) that sought to set aside what was termed a purported sale as same is null and void, relief (b) declaring as null and void the certificate of statutory right of occupancy earlier issued, (c) was there a decision taken in respect of title to the land at Podo village, Ibadan-Ijebu Ode Road, Ibadan, Oyo State between the Plaintiff and the parties named therein, was a decision taken as to trespass having been committed or otherwise, which would determine entitlement to damages or not. These issues were not decided in the previous suit I/321/90 and a decision was not taken as to the issue of title.

The issues for determination in the trial court in the present suit in the declaratory and injunctive orders sought earlier reproduced in this judgment could not be said to have been looked into and decided upon in the previous suit for the plea of res judicata to avail the Appellant as defendant, this suit cannot serve as an estoppels per rem judicatam against the present case where issue of title also arose. The rights of the parties were not determined in the earlier case.

In my humble view, the decision of the learned trial judge at page 117 of the printed records to the effect that the suit in Exhibit ‘D6’ was terminated in limine, without the court going into the merits cannot be faulted, I am at one with the same view, and uphold same. I also hold that the plea of res judicata is not applicable in the circumstances of this case, for this reason I resolve the second issue in favour of the Respondent.

The Appellant’s third issue is whether the Respondent was entitled to any of the reliefs claimed before the trial court. This in essence is challenging the trial court’s evaluation of evidence in the entire case. It is trite that the trial court that had the advantage of seeing and hearing the witnesses is in a better position to evaluate the totality of the evidence adduced before the said court. Both parties stated the position of the law in respect of the necessity to prove the identity of the land claimed when the location and size are put in issue as in the present case. It is trite law that a party in an action for declaration of title cannot succeed unless he can prove clearly the boundaries of the land which he claims. The burden of establishing such boundaries by adducing credible evidence is on the Plaintiff, this is to enable the parties know precisely the area to which the judgment relates, see MAKANJUOLA V. BALOGUN (1989) 3 NWLR (PT.108) 192 and the case of ABOYEJI V. MOMOH (1994) 4 NWLR (PT.341) 646.

The learned Counsel to the Appellant hinged his argument on this issue, on the contention that from the third relief claimed by the Respondent as Plaintiff showed that he was not sure of the location and extent of the land in dispute, see Amended Statement of Claim at page 21 of the records earlier reproduced in this judgment. It was submitted that the Respondent by use of the words in the above relief: “Whether inside or outside land registered as No. 2/2/2205 of Ibadan Lands Registry” showed that the Respondent was not sure of the location of the land he claimed. It was also contended that the boundary of the land in dispute was not ascertained and faulted the trial judge’s grant of the Plaintiff’s claims. The Plaintiff in the lower court sued for himself and on behalf of the family of late Pa Idowu George and put his case forward by his averments in paragraphs 3-14 of the Amended Statement of Claim in which he pleaded how his father was put in possession of the larger portion of land, part of which is now in dispute. He averred to the location of the land in dispute, and backed the pleadings up by producing a survey plan Exhibit “P1” showing the area he claimed, verged green. The Surveyor testified as PW1 (Wahab Titilayo Adeniji). In Exhibit “P1” the area where the Appellant built a Warehouse was shown and verged yellow. The PW2 (Pastor Kunle Osilaja) a surviving child of late Pa Idowu George also gave evidence to the effect that the land belonged to his father and the discovery of the Appellant’s commercial building in the middle of the land. The Plaintiff as PW3 also tendered Exhibit “P2” a registered deed of conveyance. The learned Counsel faulted Exhibit “P1” and the decision of the trial court on the basis that the Respondent as Plaintiff did not know the location of the land in dispute and did not plead or prove same.

The Plaintiff in the trial court filed a dispute plan in which the land in dispute and the features were clearly shown. The Defendant who argued that the Plaintiff did not know the location of the land in dispute and its boundaries did not file any plan, more especially where she also disputed the size of the land in dispute in her defence, challenging the locations and area claimed, see paragraphs 6-9 of his Statement of Defence. The plaintiff’s Deed of Conveyance Exhibit “P2” described adequately the Plaintiff’s parcel of land, verged green in Exhibit “P1”.
The Plaintiffs dispute plan showed the land in dispute clearly, surrounded by beacons outside the parcel of land. The Defendant did not file any contrary or composite plan to contradict that of the Plaintiff’s or one that would better show the location, boundaries and extent of the land in dispute as contended by the Appellant.

Even though it is the law that a survey plan is not always necessary where the identity of the land is clear and distinct and not in dispute. But, where one has been produced reflecting a set of facts and same is neither discredited nor challenged by the other party where issues are joined, such evidence ought to and would be relied upon by the judge, see ADEJUMO V. AYANTEGBE (1989) 3 NWLR (PT.110) 417.
The Defendant ought to have filed a contrary plan showing her version of supposedly the extent, boundaries and location of the land in dispute. The faulting of that filed by the Plaintiff cannot hang in the air.
The Plaintiffs plan not only showed his portions of land claimed but, it also showed that of the Defendant’s.

As rightly argued by the learned Counsel to the Respondent the evidence of the PW1 the Licenced Surveyor was not rebutted or controverted by the Appellant, for instance his evidence to the effect that the land of the Vendor of the Appellant was totally outside the Respondent’s land.

The Appellant who challenged the dispute plan Exhibit “P1” filed by the Respondent has not proved the size of the portion of land in dispute contrary to that made out by the Plaintiff now Respondent. In my humble view, the Respondent as Plaintiff led evidence in support of his pleadings and the plan filed in respect of the size, location and boundaries of the land in dispute. The line of cases relied upon by the Appellant to the contrary do not apply. He proved the features on the land.

It is noteworthy that evaluation, assessment and ascription of probative value to evidence is primarily the function of the trial court.
The trial court has the advantage of observing the demeanour of witnesses which the appellate court has no benefit or advantage of and it would never be available to the appellate court. The appellate court would therefore not substitute its view of the evidence for that of the trial court, it would lead to a miscarriage of justice. It has not been shown from the printed records that the trial court did not take advantage of seeing and hearing the witnesses before making its findings and arriving at its decision. The trial court properly evaluated the evidence before it, see, EBBA v. OGODO (1984) 1 SCNLR 372; WOLUCHEM V. GUDI (1987) 5 SC 219; NWOKORO V. NWOSU (1994) 4 NWLR (PT. 337) 172; SHA V. KEVAN (2000) 8 NWLR (PT. 670) 685; ODUWOLE V. AINA (2001) 17 NWLR (Pt.741) 1 CA; MOGAJI V. ODOFIN (1978) 3-4 SC 91.
The duty of appraising evidence, giving credit to same and making findings of facts based thereon is primarily the duty of the trial court; an appellate court would only interfere with such findings, if they are proved to be perverse. In the present case, the findings of the trial court were supported by evidence and this Court would not interfere with such findings as they have not been shown to be perverse, see, ELENDU V. EKWABA (1995) 3 NWLR (PT.386) 704; ELENDU V. EKWOABA (1998) 12 NWLR (PT. 578) 320; OLAWOAKE V. SALAWU (2000) 11 NWLR (PT. 677) 127; OGBU V. ANI (1994) 7 NWLR (PT. 355) 128; OGBUOKWELU V. UMEANA FUNKWA (1994) 4 NWLR (PT.341) 676; OFONDU V. NIWEIGHA (1993) 2 NWLR (PT. 275) 253 and OYEBAMIJI V. FABIYI (2003) 12 NWLR 271. The learned trial judge’s findings are unassailable. I cannot tamper with same. The Appellant’s third issue fails. I hold that the Respondent was entitled to the reliefs claimed and granted by the trial court, I affirm same.

I cannot end this judgment without commenting on the language of learned Counsel to the Respondent, it was discourteous to say the least as Counsel in his brief constantly made reference to Counsel to the Appellant in an insulting and abusive language not expected from members of the legal profession, that is, being confrontational to their learned colleagues. Cases must be viewed and handled as between the parties or litigants not between or amongst Counsel. Such language should be avoided.

Still on language, grammar and construction of same is part and parcel of the legal profession, I noted with dismay that a lot of the citations in the Respondent’s brief were either incorrectly or inaccurately cited, some incomplete. There were careless avoidable errors that would have been remedied by simply vetting the process before filing, too many typographical and grammatical errors. Rather than look up the authorities cited and relied upon by Counsel, in the course of resolving the issues at stake, the Court spent time trying to make out what the citations were or should be to enable us read the authorities.
Unless of course, the intention is that the authorities should not be read!
As I have always advised, learned Counsel should make out time to vet processes before filing, it would make the work less stressful for everyone. So be it.

In the final analysis, I hold that the appeal is without merit, I dismiss same. I affirm the judgment of the learned trial Judge of the Oyo State High Court in Suit No. I/311/03 delivered on 31st March, 2008.

I award costs of N30,000.00 to the Respondent.

ADAMU JAURO, J.C.A.: I have had the opportunity to read before now the lead judgment delivered by my learned brother, C.N. Uwa, JCA with which I entirely agree.

For the same reasons canvassed in the aforesaid judgment, which I respectfully adopt as mine, I too, find this appeal without any merit or substance and must perforce fail.

Consequently, I hereby dismiss the appeal and make similar order as to costs as contained in the lead judgment.

OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my brother Chidi Nwaoma Uwa, JCA. I completely agree with the reasoning and conclusions reached. I wish to add a modest contribution on the issue of res judicata and on the need for the appellant to discharge the burden of proof on her with respect to the area
of land in dispute.

On the doctrine of res judicata, it is now settled that the doctrine will arise so as to prevent a matter earlier litigated upon from being re-litigated upon if the parties, issues and subject matter were the same in the previous case as those in the action in which the plea of res judicata is raised. See Ogunleye v. Jegede (1991) 6 NWLR part 199 p.598. See also Nnaneri & Ors vs. Oriuwa & Ors (1959) 4 FSC at p. 132 also reported in (1959) SCNLR 316. There must also exist a judgment of a court of competent jurisdiction. See Dzungwe vs. Gbishe (1985) 2 NWLR Part 8 p. 528; Nwokafor vs. Udegbe (1963) 2 SCNLR 184; Udo vs. Okupa (1991) 5 NWLR part 191 p.355 at 371. Where any one of the above elements is missing, it becomes a forlorn proposition to talk about res judicata.
The issues in the previous case were not the same as the ones in the lower court. The invocation of the doctrine of res judicata is misplaced.

With regard to determining the area of land in dispute, the appellant had a burden to discharge. In civil matters, the burden of proof shifts.
Where a claimant alleging a fact pleads that fact and produces evidence in proof of it, the onus will shift to the defendant to adduce evidence in rebuttal. See Olowu vs. Olowu (1985) 3 NWLR part 13 p.372 at 386. In land matters, the position of the law is not too different. It is the law that burden is on the claimant in a land matter to prove his case and that he cannot rely on the weakness of the defendant’s case. In that sense, the defendant bears no burden to adduce any evidence. But where a claimant has produced evidence in support of his case which prima facie will entitle him to judgment, the defendant will need to lead some evidence to enable the court to consider on whose side the case preponderates. See Adeleke vs. Iyanda (2001) FWLR p.1580 at 1594. In this case, the respondent tendered a survey plan showing the land in dispute. The onus thus shifted to the appellant to rebut the survey plan tendered by producing one of her own. She did not do so. As it is, the respondent’s plan remained unchallenged and consequently evidence in that regard preponderates in favour of the respondent.
For the above reasons and the fuller and better reasons given in the lead judgment, I have no reason to upset the judgment of the lower court.
I also will dismiss the appeal. It is hereby dismissed. I agree with the consequential order made in the lead judgment.

Appearances

Idowu Lanre Alabi Esq. with O. F. Awomolo (Miss)For Appellant

AND

Shonibare Olatunde Esq. with P. O. Ajaponna Esq.For Respondent