OLODIOMA v. OKOTIE-EBOH & ORS (2020)

OLODIOMA v. OKOTIE-EBOH & ORS

(2020)LCN/15378(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Thursday, September 17, 2020

CA/AS/89/2006

RATIO

DECLARATORY JUDGMENT: RELEVANCE OF A DECLARATORY ORDER

I cannot conclude this judgment without pointing out that the law is sacrosanct that a declaratory order merely declares the rights of the parties and is dormant beyond that pronouncement. It has no force of execution and as such it cannot be stayed or suspended. See Government of Gongola State Vs. Tukur (1989) 4 NWLR (pt 117) 592.
Suffice it to state that a declaratory judgment is complete in itself since the relief is the declaration sought or granted. See Akunnia Vs. A.G (Anambra State) (1977) 5 SC 161. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.

RES JUDICATA: WHEN A PLEA OF RES JUDICATA MAY BE RAISED

Conceding that the plea of res judicata may be raised where;
1. The parties are the same as in the previous suits
2. The subject matter is the same as in the previous suit
3. The Court that adjudicated is one with competent jurisdiction and
4. The previous decision must be a final one between the parties
Iyaji Vs. Eyigebe (1987) 3 NWLR (pt 661) 523; Oyegbola Vs. Aremu (1992) 8 NWLR (pt 259) 326; Agbogu Vs. Agbogu (1995) 1 NWLR (pt 372) 411 and Uwamu Vs. Uwamu (1998) 10 NWLR (pt 569) 240. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

MADAM BRIDGET OLODIOMA APPELANT(S)

And

MR. JOHN OKOTIE-EBOH 2. DR. CLARA AKELE 3. LAWRENCE OKOTIE-EBOH 4. MRS LYDIA LASSEY 5. EMMANUEL OKOTIE-EBOH (For And On Behalf Of The Estate Of Late Chief Festus Sam Okotie-Eboh) 6. HON. COMMISSIONER FOR LANDS & SURVEY DELTA STATE RESPONDENT(S)

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Justice, Delta State Coram P. O. Onajite Kuejubola (Mrs), J. delivered on the 10th February 2005 in Suit No. W/78/2002 John Okotie-Eboh & 4 Ors. Vs Madam Bridget Olodioma & Anor wherein the Plaintiffs had claimed against the Appellant herein as 1st Defendant in an Amended Originating summon as follows:
1. A declaration that under and by virtue of the renovation (sic) of the temporary occupation license made on the 25th day of April 2000 on the parcel of land known as Plot 1 Box XLIII lying and situate along Maclver Road, Warri. The 1st Defendant’s license has been lawfully and validly revoked.
2. A declaration that the Plaintiffs are entitled to damages for the trespass committed by the 1st Defendant as from the 25th day of April 1000 077 the piece or parcel of land known as Plot 1Block XLIII lying and situate along Maclver Road, Warri and covered by a Deed of Assignment dated 18th June 1963 and registered as No. 19 in volume 425 of the Lands Registry in the office at Ibadan.

3. An injunction restraining the 1st Defendant from further trespass 077 the land known as Plot 1Block XLIII and situate along present day Maclver Road, Warri and covered by a Deed of Assignment dated 18thJune, 1963 and registered as No. 19 at page 19 in volume 425 of the Lands Registry in the office at Ibadan.
4. An injunction restraining the 2nd Defendant from granting any temporary occupation license on the land known as Plot 1 Block XLIII lying and situate along Maclver Road, Warri and covered by a Deed of Assignment dated 18thJune 1963 and registered as No.19 at page 19 in volume 425 of the Lands Registry in the office at Ibadan, to the 1stDefendant or any other person without the consent and knowledge of the Plaintiffs.

SYNOPSIS OF THE FACTS OF THE APPEAL
The Appellant herein had been sued vide suit No W/169/91 by the Respondents herein for and on behalf of the late Estate of the late Chief Festus, Sam Okotie-Eboh for a declaration of ownership and other reliefs appertaining No. 1 Maclver Road, Warri which was known as the Beach which lies between the Market Road and number No. 1 Maclver Road. The other part of the land is between the Market road and the Warri River.

The Defendant in the earlier suit who is Appellant now, and also in the subsequent suit brought and which is the subject of the instant appeal now, had in the first suit denied the claim insisted and that the land occupied by her was different from and did not form part of the Estate of the late Chief Festus Okotie-Eboh. The Court agreed with the position and dismissed the claim as lacking in merit.

On the subsequent or fresh suit, No W/78/02, the plaintiffs have come by originating summons seeking reliefs in respect of the same land occupied by the Appellant herein and the question of Resjudicata was raised by the 1st Defendant now Appellant, but was unsuccessful and hence this appeal.

The Appellant who had filed an initial sole Ground of Appeal was by leave of this Court granted on the 1st day of June 2015 permitted to file additional Grounds of Appeal.

In consequence, 9 Additional Grounds of Appeal were filed on the 3rd of June 2015, and also raised 2 fresh issues/points of jurisdiction for the determination of this Court, upon leave granted on the 1st of June, 2015 pursuant Appellant’s earlier motion dated 18th April and filed 14th October 2010 to so do.
The Appellant’s Issues for determination are as follows:

ISSUE 1
(ORIGINAL GROUND 1 AND ADDITIONAL GROUNDS III &V111)
Whether having regard to the subsisting Judgment and finding of facts in Suit No. W/169/91, the Court below had no jurisdiction to try this matter and to give judgment as it did and also having regard to the principles of issue estopel and/or Res Judicata
ISSUE 2
(ADDITIONAL GROUND II)
Whether this case was properly commenced by Originating Summons instead of a Writ of Summon having regard to the reliefs of the first set of Respondents at the Court below and the disputed facts before that Court.
ISSUE 3
(ADDITIONAL GROUND III)
Whether the Amended Originating Summons with no fresh affidavit in support of it was valid before the Court below to commence this action.
ISSUE 4
(ADDITIONAL GROUND V)
Whether Judgment of the Court below was not vitiated when it simplyand only answered the question for determination without granting any relief sought by the first set of Respondents.
ISSUE 5
(ADDITIONAL GROUNDS IV, VII & IX)
1. Was the Court below right in holding that:
a. A letter of revocation of the license of the Appellant has effectively revoked Appellant occupation license because same “was addressed to Madam Bridget Ogagan, was the same as ” Defendant in this action “.
b. Exhibit ‘D’ to the proceedings revoked the occupational license of the Appellant.
c. The Plaintiffs were entitled to Judgment in favour of Appellant.
2. When there were no facts before it for such holding and
3. Without first ascertaining whether the land occupied by the Appellant was the same as the one claimed by the first set of Respondents thus occasioning the miscarriage of justice.

These are as contained on pages 6-7 of the Appellant’s Amended Brief of Argument dated 17th August 2017 and taken out by G.J Odjesa, Esq. for his clients and filed on 17-8-2017 which was adopted at the hearing of the appeal.

The Respondents, on their part, by their Brief of Argument dated 2-6-2020 and filed on 3-6-2020 raised 3 (three) issues for determination to wit;
1) Whether suit no. W/169/91 and W/78/2003 are on all fours to warrant the successful plea of Res Judicata.
2) Whether the cause of action in Suit No. W/78/2003 being basically on the interpretation of the letter of revocation of the temporary occupation licence can be brought by way of originating summons.
3) Whether a Court of law can close its eyes to an existing affidavit attached to a process in the Court file or whether an amendment of an originating summons can amend the affidavit in support of the original summons.

ARGUMENTS
ISSUE ONE:
Arguing the issue number one, the Appellant’s learned counsel observed that the first action was a representative action by the Representatives and beneficiaries of the Estate of the late Okotie-Eboh over the same land occupied by the Appellant. The counsel referred to Exhibit C in the trial Court and pointed out that the trial Court having held that the Plaintiffs thereat (now respondents) could not establish that the area of land purportedly owned by the late Chief Okotie-Eboh extended to the land in possession of the Appellant. Reference for this finding was made to page 42-43 of the supplementary Record of Appeal, being pages 20-21 of the Judgment in Suit No. W/169/91.

The learned counsel argues that rather than challenge the final judgment and its findings on appeal the first set of Respondents brought the fresh action now on appeal over the same land occupied by the Appellant, which was the subject matter of Suit No. W/169/91.

It is argued that the trial Court in the suit on appeal was wrong in holding that the parties were different and so also that the issues were different; that the refusal to hold that res judicata applied as found on page 73 of the original Record of Appeal was an erroneous conclusion in law.

That the finding of the trial Court that the parties and subject matter were respectively not the same, though not expressly stated, must have been predicated as relating to parties on the addition of the 2nd Defendant; the commissioner for lands and surveys, Delta State” as a party to the suit on appeal, as he was not a party in the Suit No. W/169/91.

To this, the counsel argued that there was no claim(s) against the said new – 2nd Defendant as a party as the questions for determination and reliefs sought were not related to him and that he was only brought in order to vary the parties.

The learned counsel argued that for Res judicata or issue estopel to be raised it does not matter that parties in one suit are not in the other one.
Refers to Ikeni Vs. Efamo (2001) 10 NWLR (pt 720) 1 at pages 17-18 paragraph H-A where Ayoola JSC stated thus;
“Principle that for a defence of Issue estoppel to succeed there must be identity of parties does not mean that all the parties in the previous suit must be made parties in the latter suit. It is sufficient where there are several parties in the previous suit, that those of the parties who were necessary parties to the issue in the previous suit are the same as in the latter suit”.

That the necessary parties were the same in the two suits.

That were it not to be necessary parties, all a person seeking to defeat the principle of res judicata would do is to remove or add in consequential parties to a new suit.

That this is what the 1st set of Respondents had sought to do in this matter.
Agbogu Vs. Agbogu, (supra) Musdapher, JCA stated;
“Neither the 3rd Respondent nor her privies are entitled to re-open the issue decided therein by instituting a fresh action couched however, ingeniously with the object of the opening the issues already decided”.

That the parties in Exhibit C and those in the present suit are the same.
That the subject matter is the same; that is the land occupied by the Appellant, herein.

The learned counsel argued that when it is said that the land and subject matter should be the same, it does not mean that the party who has failed in the previous suit can go back to the drawing board; fashion a new strategy and re-invent their evidence to prove the same issue.

It was argued that it is not the law that every question raised in the present case must have been raised in the previous suit as it is enough if the subject matter is the same. For instance, ownership of property or trespass to the same property or possession of the same property. Oyegbola Vs. Aremu (1992) 8 NWLR (pt 259) 326 where the question as to who was entitled to the possession of the house in question was held to be an issue common to the two suits, learned counsel cited Onyemuyi V. Osunbade (2001) FWLR (pt 82) 1919 1963 paragraph G and page F for the view that a non-party to a Deed or document cannot press for an action for its cancellation or take any advantage there from.

That the Appellant was right when he argued at the lower Court that the 1st set of Respondents had no locus standi to sue and that the trial Court was wrong in not upholding the view.
That the issue of revocation had also arisen in the previous judgment

That on the account of the sameness of the land earlier adjudicated, the matter was for closed by the first trial and judgment and the Court does not have jurisdiction to proceed in a fresh suit.

ISSUE 2
(ADDITIONAL GROUND II)
Whether this case was properly commenced by Originating Summons instead of a Writ of a Summon having regard to the reliefs of the first set of Respondents at the Court below and the disputed facts before that Court.

On this issue, it was argued that by the Order 1 Rule 2 (1) of the High Court (Civil procedure) Rules, 1988 then applicable to Delta State, the Respondents’ suit was incompetent having not been brought by a writ of summons. Reproducing the Order 1 Rule 2 (1) thus; ……

It was argued that the prayer for declaration of title falls within Order 1 Rule 1 (2) (1) (a) and Order 1 Rule 2 (1) (e) of the said High Court (Civil procedure) Rules 1988 and also for the reason that the facts in the matter were substantially disputed. That the 1st set of Respondents claimed a declaration of title as persons who are beneficiaries or interested in the Estate of late Festus Sam Okotie-Eboh. That Declaration of title was sought; that their claim in respect of the portion of land occupied by Appellant was in dispute as the Appellant denied that it was part of the estate of late Festus Okotie-Eboh. Reference was made to the counter Affidavit of the Appellant sworn to by her on the 14th May, 2002, paragraphs 7 and 20 and the Judgment in suit No. W/169/91 that the land occupied by the Appellant was different from the land belonging to the estate of Chief Festus Ekotie-Eboh.

That oral evidence was needed to prove that title and to show the area of land that constituted the Ekotie-Eboh’s holding and whether it included the area occupied by the Appellant or not. That this brought it under Order 1 Rule 2 (1) (e) of the High Court (Civil Procedure) Rules, 1988.

That it is obvious that the matter was contested, in that a further affidavit had to be filed to show that the land was block XLII, plot 1 at market road and Macver Road (Exhibit EL 1).

That the survey sketch attached thereto, there was no Block XLII, rather a Block XCLII shown in the survey sketch.

That the land in occupation of the Appellant having been disputed as belonging to the 1st set of Respondents, as it was put in dispute in suit No. W/169/91 and resolved against the first set of respondents and again disputed in the case leading to this appeal, the Court lacked the jurisdiction to entertain the suit on an originating summons procedure.

The cases of Saleh Vs. Monguno (2003) 1 NWLR (pt 801) 221, 259-262; Lawani V. Oladokun (2003) 2 NWLR (pt 804) 2711 288-289; Keyamo Vs. House of Assembly, Lagos State (2002) 18 NWLR (pt 799) 605 were relied upon.

The learned counsel argued that there was substantial disputes in the facts of the case as against the contention of the Respondents’ counsel that the Court could hear the matter.
Appellant’s counsel relies on Oyewusi Vs. Osunbade (2001) FWLR (pt 82) 1991 to contend that originating summons was not a proper procedure to commence an action with disputed facts or facts that leave much to conjecture.

ISSUE 3
On this issue, it was argued that the originating summons having been amended, the supporting Affidavit to the originating summons cannot be said to still subsist and that the amended originating summons must have a new Affidavit in support else, it will stand incompetent as every originating summons must be supported by an Affidavit. Keyamo Vs. House of Assembly, Lagos State (supra) relied upon.

That the variation in the date of the originating summons and date of filing coming well before shows that the affidavit had been filed before dating and therefore not filed along as it ought to be.
CCB (Nig) Plc Vs. Master Piece Chemicals Ltd (2000) 12 NWLR (pt 682) 574-585; Adewusi Vs. Dangana (1975) NWLR 190, 192 – 193 and Abubaka Vs. Omoruyi (1978) NWLR 48 were cited to contend that there was no Affidavit in support of the Amended originating summons and therefore there was no competent originating summons and the Court proceeded without jurisdiction to hear the matter.

ISSUE 4
It was argued that no reliefs were granted and that there was no judgment, as there was evidence not considered adequately and therefore the judgment was perverse and that it should be annulled.

ISSUE 5
That there was no proof of the revocation of the occupational license of the Appellant, by Exhibit ‘D’, as Exhibit ‘D’ was addressed to Bridget Ganga. That there was no proof that the said addressee received the document Exhibit ‘D’. It was also argued that there was no evidence or proof of the writer of the said Exhibit ‘D’ nor proof of who delivered and who received. That the mere writing of a letter to an unknown addressee (recipient) does not constitute a revocation of any right over land.

That the burden of delivery was on he that alleges and in this case it had to be the evidence of the Government office that purportedly issued it, and not even the 1st set of respondents. That the decision was perverse and ought to be set aside.

Ultimately, this Court has been urged to allow the appeal and to set aside the decision of the trial Court for the reason of estopel and the pleadings, inclusive of all the arguments advanced.

The 1st to the 5th Respondents raised the issues thus:
1. Whether suit No. W/169/91 and W/78/2003 are on all fours to warrant the successful plea of Res judicata
2. Whether the cause of action in suit W/78/2003, being basically on the interpretation of the letter of revocation of the temporary occupation license can be brought by way of originating summons.
3. Whether a Court can close its eyes to an existing affidavit attached to a process in the Court file or whether an amendment of an originating summons can amend the affidavit in support of the original summons.

Arguing Issue one, the respondents submitted that the parties in the two suits were not the same and so also the reliefs in the suits were not the same.

Counsel observed that in W/69/91 Lawrence Okotie-Eboh, Lydia Lassey, Emmanuel Ekotie-Eboh, and Honourable Commissioner for lands survey Delta State were not parties in W/78/2002, Mrs. Alero Jadesimi is not a party thereat. Counsel argued that the trial Court was right in holding that the plea of Res judicata was in applicable. Relying on OkukujeVs. Akwido (2001) FWLR pt 39, page 1487 @ 1490 ratios 12 @ 1501 per Katsina-Alu, JSC that it was contended once (1) the parties are the same (2) the issues are the same and (3) the subject matter is the same, the plea succeeds.
That in the case supra, the plea failed and that is the situation in this appeal.

It was contended that the ownership of the land in dispute was not determined in the earlier suit No. W/169/91 as the Appellant was not determined as the owner thereof and that the Appellant did not counter claim in that suit.

That the 1st and 2nd Respondents have been shown to be the owners of the land covered by a deed of assignment dated 18th June 1963, Registered as No. 19 page 19 in vol. 423 of the Lands Registry at Ibadan between UAC Ltd and Chief Okotie-Eboh, the piece of land known as plot 1 Block 43. Forms part of the estate of the late Chief Okotie-Eboh.

That the revocation of the occupation licenses of the Appellant automatically made her a trespasser in respect of the land, Dibia Vs. Tubosimi (2010) and Akinterinwa Vs. Oladunjoye (2000) FWLR pt 10, page 1690 @ 1711 D relied upon.
Relies also on Anwoyi V. Shodeke (2006) ALL FWLR pt 340 (page 1041) @ 1046. That there was no finality in the ownership of the land occupied by the defendant in W/169/91 and that this question of ownership can lawfully be determined in a subsequent action.
Azazi V. Adhekegba (2009) ALL FWLR (pt 484) page 1545 @ 1560 – 156, par H-D per Bada, JCA. Quoting Spencer Bower and Turner on the Doctrine, of Res Judicata, 1969 thus:
“A judicial decision is deemed to be final when it leaves nothing to be judicially determined or ascertained thereafter in order to render it effective and capable of execution and is absolute, complete and certain and when it is not lawfully subject to subsequent decision, review or modification by the tribunal which pronounced it”

On the issue whether Madam Bridget Ogangan is the same as Madam Bridget Olodioma the Appellant on whom the temporary licence was revoked, it was submitted that the Exhibit ‘D’, the temporary occupancy licencse revoked referred to the same person being Bridget Gangan or Bridget Olodioma.

That pages 9-11 of the Supplementary Record and page 30, lines 20-22 thereof shows DW1, Ezon Owei Ogulagha testifying on may 7th 1996 that Bridget Olodioma (defendant) was also known as Bridget Gangan.

That the said Bridget Gangan had so admitted that Gangan was her father’s name and that the trial Court had rightly so found as facts admitted need no further proof. That the findings are based on the facts admitted by the Appellant in suit No. W/169/91.

That those findings and conclusion of a trial Court founded on legally admissible evidence was proper and it is the duty of the Court to rely on such evidence. M.T.N Communications Ltd V. Amadi (2013) ALL FWLR (pt 670) pg. 1329 @ 1333 – 1334 relied upon.

ISSUE 2
Whether the cause of action in suit No. W/78/2003 basically on the interpretation of the letter of Revocation of the temporary occupation licence can be brought by way of originating summons:

It was argued that it could be so brought as the High Court (civil procedure) Rules 1988 Order 1 Rules 2 (a) and (b) provides for it.

That the claim of the Respondents both in the originating summons and amended originating summons at page 1 of the Record and page 7 of the Supplementary Record is for the Court to interpret whether the temporary occupation licence had been validly revoked or not.

That this sole question relating to Exhibit ‘D’ was captured by Order 1 Rule 2 (a) (b) of the High Court (civil procedure Rules, 1988 under which, the application in W/78/2002 was brought. Referred to Ezeigwe Vs. Nwawulu (2010) AFWLR pt 518, page 794 at 799 per Adekeye, JSC on when action on originating summons may be brought; that is where there are no substantial disputes of facts or likelihood of disputes; action not hostile or where there is no need for pleadings and parties are substantially at ad idem on the facts and proceedings are on friendly basis of mere interpretation of the law, Deed, will or construction thereof.

That the trial Court was right in so entertaining the suit W/78/2002 under the originating summons procedure.

ISSUE 3
Whether a Court of law can close its eyes on the face of an existing affidavit attached to a process in the Court file.

It was submitted and reference being made to Sections 108 of the Evidence Act, 2011 (as Amended) Section 109 and Section 113 that the Affidavits and further Affidavits in the Court’s file formed part of Record of the Court and the Court is at liberty to refer to them and use them as they are binding on the parties and the Courts. See Daggash Vs. Bulama (2004) ALLFWLR pt 212 page 1666 at 1684 – 1685 at page 26 where the Court held:
“Records of proceeding bind both the parties and the Court”.
It so binds the parties and the Courts and is presumed correct in less the contrary is proved. See Texaco Panama Incorporation (owners of the vessel my “Star Tulsa”) Vs. Shell Petroleum of Nigeria Ltd (2002) AFWLR pt 96 page 579 @ 605 par. B-C.

On the aforesaid, it was contended that the lower Court did nothing wrong in relying on the Affidavit and further unamended Affidavit at pages 2-4 and 14-15 of the Records as same is allowed by law.

That the Court is entitled to look at its case file and make use of its contents.
Uzodinma Vs. Izunaso (No. 2) (2011) 17 NWLR pt 1272 page 30 @ 75 par F-H on the liberty of a Court to look at and utilize a document in its file while writing Judgment, ruling despite the fact that the document was not tendered and admitted as Exhibit at the trial. The rationale being that Courts are designed to do substantial justice in issues in controversy between parties was referred to.

That there was no miscarriage of justice occasioned as the Court relied on the affidavit and amended summons before the Court in the proceedings between the parties with legal representation without any complaint at the lower Court.

On the question that the lower Court only answered the questions for determination without granting any relief sought; it was argued that the Court clearly considered and answered all the questions raised and granted the reliefs as prayed; that fair hearing was accorded all the parties, and that the Court did not fail to recognize any issue brought for determination; that the decision reached was not prejudicial or inconsistent with the substantial rights of the parties and that all that the trial judge did was within the ambit of the law;

That there was no miscarriage of justice.

RESOLUTION OF THE APPEAL
I have carefully and painstaking perused the Records of Appeal in both the original and supplementary copy thereof together with all the Exhibits in this appeal and reason that the appeal can effectually and fairly be determined on the Respondents’ three (3) issues as they are encapsulative of all the 5 issues raised by the Appellant.

ISSUE 1
I have perused the records of the appeal and noted the parties in particular and do not see the complaint on the composition of the parties as being of any moment.

For there to be an effective invocation of the res judicata principle, it is not only the “primary” parties that must be the same in the contending suits in dispute but indeed even if their privies are the same, it suffices.
That is to say, that it is not necessarily the exactitude and replication of self-sameparty(ies) that convocts the invocation of the principle of res judicata.
The existence of one party or an addition or subtraction of different one, but with the subsistence of at least one party in respect of the pursuit of the same interest, to my mind, does not constitute the legal position of a different party in a case.
Furthermore, I am also of the view that the omission of a nominal party in the circumstances of a particular case, does not, ipso facto, constitute a ground for contending that parties have been varied such that there are not the same party to warrant the application of the res judicata principle to throw up the multiplicity of suits and abuse of legal process contention!
I see clearly, in this case, that the parties and/or their privies are the same in the two suits in W/69/91 and W/78/2003; Indeed, the subject land in dispute is that over which the Appellant had a “Temporary occupancy licence” that was the subject of the Revocation and the interpretation sought in the originating summons. calling it block XLII or plot XXII was of no moment, as DW1 in the initial suit had shown that the Defendant/Appellant was the person in occupation therein.
On the issue involved in the two suits, it is my view that the fact that the title to the land was not adjudged in favour of the 1st – 5th respondents did not also mean that a declaration of title in favour of the Appellant was to be presumed.
The issue for the determination of the Court were, therefore, not the same in the two suits, as the issue in the later suit is whether the temporary occupation licence had been revoked.
The 1st – 5th respondents had interest in the land as it had been shown to be part of the estate of their late father. They had locus standi to sue as interested parties and to even be joined in any action concerning the revocation or otherwise of any interest relating to that title or holding. The 1st – 2nd Respondents were right in contending that the ownership of land did not arise for determination in the 1st suit No. W/169/91 so as to put an end to the litigation in defeat of the subsequent action in W/98/2002, as ownership was not determined for either side in the earlier suit and there was no counter claim in that suit either.
The equitable interest offered by the temporary occupation license had been extinguished by its revocation; and the declaration of the title subsisting in the res was obviously a separate and distinct Issue.
Accordingly, Issue Number One, that is whether the second suit 98/2002 constituted res judicata on account of the earlier suit No. W/169/91 is answered in the negative.

I resolve Issue one of the respondents, which encapsulates the Appellant’s. Issues 1, 5 against the Appellant and in favour of the 1st – 5th respondents.

ISSUE 2
The answer to issue 2 is trite and does not deserve any equivocation. There is absolutely no doubt that the action on appeal now was commenced appropriately by the originating summons procedure as ordained by Order 1 Rule 2 (a) and (b) of the High Court (Civil Procedure) Rules, 1988 of Delta State of Nigeria.
The principal question for determination that was in issue was the construction of the documents of conveyance Registered as a Deed No. 19 at page 9 in vol. 423 of the land Registry Ibadan between, UAC Ltd and Chief Okotie-Eboh in respect of a piece of land known as plot 1 Block 43 so as to declare whether it formed part of the estate of the late Chief Okotie-Eboh and also the document tendered as Exhibit ‘D’ as temporary occupation licence, as to whether it had revoked the licence issued to its holder thereof.
The Documents speak for themselves and are in their contents not disputed facts and were, therefore, questions upon which an interpretation by originating summons was proper, legal and not prohibited in law. The trial Court was right in entertaining the suit brought vide the originating summons procedure, therefore.
Issue 2 is resolved against the Appellant and in favour of the 1st – 5th Respondents.

ISSUE 3
Whether a Court of law can close its eyes in the face of the existing affidavit attached to a process in the Court file.
It is trite and clear from the Sections 108, 109 and 113 of the Evidence Act 2011 (as amended) that all the processes filed constitute part of the Courts record and are binding on both the Court and the parties in the proceedings.
The cases of Daggash Vs Bulama; Texaco Panama Incorporation (owners of the vessel MV “Star Tulsa” Vs Shell Petroleum Development Corporation of Nigeria Ltd; Uzodinma V. Izunaso (No. 2)aptly cited by the 1st – 5th Respondents’ counsel are applicable and in point.
The amendment made of the originating summons was of no prejudice to the earlier affidavit at the hearing.
The trial Court granted the reliefs sought by the interpretation or determination of the questions raised in the Amended originating summons and refused the invitation of A-E. Tudge for the Respondents (Defendant) in the originating summons that the summons be dismissed in respect of the originating summons as originally or initially filed in the Court. The Court was correct. This issue is also resolved against the Appellant and in favour of the 1st – 5th Respondents.

Although I have already resolved all the 3 three live issues in favour of the 1st – 5th respondents and against the Appellant, I should still say that it is not correct to argue that the Court only answered the questions for determination without granting the relief sought, as argued by the Appellant’s learned counsel.
The 1st – 5th Respondents’ counsel has aptly shown in his sub issue 3 in the unpaginated and unparagraphed Brief of Argument filed for his clients, which I have, in equity, not discountenanced, as the interest of justice so demands; as nonetheless, it is still a Brief of Argument filed, and adopted; that reliefs were sought and granted. I agree.

It was argued that the doctrine does not permit of instalmental litigation over a matter between the same parties as done by the respondents in this case; that even if it were by negligence, omission, inadvertence, accident, the raising of an issue in instituting a new action over the same matter and between the same parties is caught by the principle of res judicata.
See Ezewani Vs. Onwordi (1986) 4 NWLR pt 33, p. 27 and 28 quoting Lord Denning M. R. in Fedlitas shipping Co. Ltd V. V/O Export Chled (1966) 1 QB 630 at 640 thus – “the rule is that each party must use reasonable diligence to bring forward every point which he thinks would help him. If he omits to raise any particular point from negligence, inadvertence, or even accident (which would or might have been decided in his favour) he may find himself shut out from raising the point again, at any rate, in any case where the self-same issue arises in the same or subsequent proceedings.

But this again is not an inflexible rule. It can be departed from in special circumstance”. Iyaji V. Eyigebe (1987) 3 NWLR (pt 61) 523, 534 paragraph B-F where Oputa, JSC stated thus; “I take it that the subject matter in Exhibit D1 and the present case is the same … The issues are the same namely the ownership of the land in dispute”. And Agbogu V. Agbogu (1995) 1 NWLR (pt 372) 411 were relied upon.
In Agbogu’s case supra it was held that the subject matter of the suit being for entitlement of their mother to interfere with the estate of the deceased, the children being privies by blood to their mother, could not bring a fresh action claiming interest in the same interest.
The learned counsel also submitted that having held that new issues to wit “The revocation of a temporary licence of the Appellant had arisen” and which was not an issue in the 1st suit W/169/91.
The counsel asked the questions (1) Revocation of licence over which land? (b) is this an issue between the Appellant and the first set of respondents.
That the Court below did not resolve the contention that the property in dispute was not part of the property of late Chief Okotie-Eboh as claimed but denied.
That the Exhibit C has an extant and binding findings of facts that the land occupied by the Appellant was not part of the land of Chief Okotie-Eboh and further that survey plan at page 41 of the supplementary Records of Appeal (ie page 16 of the Judgment in suit No. W/169/91 has on top of its left “Plot XXII” rather than Block XLIII as claimed by the 1st set of Respondents as the land. That there was no oral evidence taken on this gaping hole or of this conflict in the affidavits and Exhibits of the 1st set of Respondents at the Court below.
It is submitted that even if the Appellant’s occupational licence was revoked, that did not confer title on the 1st set of Respondents nor will it make the Appellant a trespasser at the suit by these respondents.
That even if revoked, it was only the revoking authority that could complain and not a stranger to that as found in the Exhibit annexed in support of the original originating summons as an amendment relates back to the original process filed.
An amendment does not extinguish the existence or validity of an earlier affidavit in support.
The amended originating summons is deemed as existing with the erstwhile Affidavit transfixed and thus forming its supporting Affidavit. That is, the more reason why an additional Affidavit shall be, and indeed, is part and parcel by its addition to the erstwhile or hitherto existing supporting Affidavit.
It begs the question and indeed will amount to a recourse to technicality to reason that an amended originating summons must have a fresh amended supporting Affidavit specifically annexed to it in support.
Judicial Notice will be taken of and use will be made of, the initial supporting or existing Affidavit in the file.
The 6th Respondent, filed no Brief and no complaints were raised against it as a nominal party, in the Appeal. The resolution of the Issues in this appeal however, constitutes a general declaration of the state of things and the law and which is binding in rem.
It must, in passing, be observed that the denial of the effect of Exhibit ‘D’, the revocation order letter in respect of the plot of land implies its service on and acknowledgement of same on the Appellant; and it was of no moment to contend that the mere writing of a letter to an unknown recipient cannot constitute a revocation of any right over land.
The recipient is the addressee identified as the Appellant herein. She is not an unknown person and is bound by the findings of the Court as relating to the property in her occupation to which Exhibit ‘D’ relates or appertains.
It is enforceable by way of choice by the respondents notwithstanding that it is an executory Judgment that may be specifically enforced by a specific action for trespass and injunction and/or damages in the bid to enforce the purport of the declaration of right as made by the lower Court and affirmed by this Court, supra. The appellant, as submitted by his learned counsel at page 12 of his Brief of Argument has, impliedly admitted the revocation of a piece of land, although he claimed that it was not as relating the land occupied by the Appellant. The existence, knowledge of revocation is not denied; it is also admitted.
Parties and their counsel, just as the Courts, must be consistent in the proof, presentation, prosecution of their cases both at the trial and on appeal. They must not blow hot and cold. See Ajide Vs. Kelani (1985) SC 1. The arguments as to the revocation not being addressed to a known recipient and also not relating to the land in the occupation of the Appellant but rather to an unidentified plot of land are, therefore, clearly a chase after the winds and a holding unto the straw. A gamble at technicality as was the situation in the arguments raising a challenge to the legal validity and purport of the amended originating summons, was made; the name and identity of the Appellant and the status of the judgment delivered at the trial Court, and even the proof of the delivery of the revocation letter, were in evidence in those regards and are not wanting; thus the 6th respondent or any government officer was not bound to be called to prove same, if it could be proved and/or having been proved, otherwise by other means, including admissions and inferences and presumptions.
The decision given in the suit now on appeal, is not perverse, but was clearly based on the correct interpretation of the instruments as sought to be interpreted at the lower Courts leading to a valid decision granting the reliefs as sought and as appropriate.

It is, therefore, not correct as contended by the Appellant’s counsel that no relief was sought or granted at the trial Court.
On the whole, the appeal fails and is dismissed. In consequence, the Judgment of the trial High Court of Delta State delivered on 10th February, 2015 in Suit No. W/78/2002 is affirmed.

This is a case where the 6th respondent that had granted a temporary occupancy licence to the Appellant may relocate the Appellate subject to terms in the interest of socio-economic wellbeing as facilities may be available, as no claim of right against the State has been raised.

Appeal is dismissed and no costs is awarded.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the leading judgment prepared by my learned brother Mohammed A. Danjuma, JCA.

This is to state that I am in complete agreement with the said judgment and that I have nothing useful to add by way of contribution.
Accordingly, I too, dismiss the instant appeal; and abide by all the consequential orders made in the leading judgment.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to read in advance the lead Judgment of my learned brother, MOHAMMED AMBI-USI DANJUMA, JCA, and I am entirely in agreement with him on the reasoning and conclusion reached.

I join my learned brother in dismissing the appeal and the decision of the trial Court is hereby affirmed.

Appearances:

J. Odjesa Esq. For Appellant(s)

L. Umuze, Esq. – for 1st – 5th Respondents
S. O. Monye, Esq. – for the 6th Respondent For Respondent(s)