RANKING UDO & ORS. V. MBIAM OBOT & ORS.
In The Supreme Court of Nigeria
On Friday, the 13th day of January, 1989
SC.133/1987
JUSTICES
AUGUSTINE NNAMANI Justice of The Supreme Court of Nigeria
ADOLPHUS GODWIN KARIBI-WHYTE Justice of The Supreme Court of Nigeria
CHUKWUDIFU AKUNNE OPUTA Justice of The Supreme Court of Nigeria
ABDUL GANIYU OLATUNJI AGBAJE Justice of The Supreme Court of Nigeria
ABUBAKAR BASHIR WALI Justice of The Supreme Court of Nigeria
Between
- RANKING UDO
2. CHIEF IMA IKOP OYOK EKPENYONG
3. DANIEL EKPO
4. SUNDAY OBONG
5. JOHN OBONG
6. ETIM AKPAN EKONG
(For themselves and as representing the people of Afia Nsit (2)) Appellant(s)
AND
- MBIAM OBOT
2. CHIEF PETER ARCHIBONG
3. BANIABY ESSIEN
(For themselves and as representing the people of Akpa Utong) Respondent(s)
RATIO
WHEN A JUDICIAL DECISION IS SAID TO BE FINAL
A judicial decision is said to be final when it leaves nothing to be judicially determined thereafter in order to render it effective and capable of execution. In view of the decision in Kodilinye v Odu supra just what is it in EX.E that anybody can execute The answer is nothing. At best EX.E as it relates to the title to the land in dispute in this case is ambiguous and uncertain as it leaves the parties in doubt as to the exact extent of their rights in and over the land in dispute. It neither settled finally the issue of possession nor of title. Finality cannot be attributed to a decision such as EX.E. Finality is basic and crucial in pleas of estoppel per rem judicatam. It is not the mere raising of an issue that is binding on the parties. Rather it is the fact that such issue has been adjudicated upon and decided one way or another. When that is the case, it is not open to the losing party to re-open or re-litigate that issue which had already been decided and which should therefore be considered closed. PER OPUTA, J.S.C.
THE TWO KINDS OF ESTOPPEL BY RECORD
In Ezewani v Onwordi (1986) 4 N. W.L.R. (Pt.33) 27. This court drew attention to the two kinds of estoppel by record – cause of action estoppel and Issue estoppel. In either case there will be a distinct holding by a former Court which a latter court will not allow the parties to re-open and re-litigate. A party is precluded from contending the contrary or opposite of any specific point which having once been distinctly put in issue has with certainty and solemnity been determined against him. Viewed from this angle EX.E which did not determine either title or possession with certainty or solemnity could not have created and did not in fact, create, an estoppel by record. See also Bamishebi v Faleye (1987)2 N.W.L.R. (Pt.54) 51 at p.58; Dzungwe v Gbishe (1985) 2 N.W.L.R. (Pt.8) 528 at p.538. PER OPUTA, J.S.C.
OPUTA, J.S.C. (Delivering the Leading Judgment): In the court of first instance the Plaintiffs (now Respondents in this court) sued “For themselves and as representing the people of Akpa Utong” and claimed from the Defendants (now Appellants in this court), who are people of and representing Afia Nsit (Z) the following:
“1. A Declaration that the Plaintiffs are the titular owners in possession of the piece or parcel of land situate at Akpa Utong ………..and known as and called Ekpene Ibiok…………
2. N1,000.00 general damages for trespass in that on or about the 30th day of April, 1975, the Defendants by themselves, servants and agents unlawfully broke and entered the Plaintiffs said “Ekpene Ibiok” land and destroyed Plaintiffs houses and economic crops and built huts therein without leave or licence of the Plaintiffs. The Defendants’ will continue the said acts of trespass unless restrained.
3. Perpetual Injunction restraining the Defendants, their servants and or agents from further acts of trespass in or over the said piece or parcel of land.”
Pleadings and plans were ordered, filed and exchanged. The Plaintiffs in paragraphs 4 and 5 of their Statement of Claim pleaded as their root of title, their traditional history, as well as their various acts of ownership and possession. They also pleaded in paragraph 7 Suit No.C/12/1960 which the present Defendants as Plaintiffs prosecuted against them (as Defendants) in and over the self same piece of land. It is relevant here to note that the Plaintiffs did not specifically set up this case and its appeal judgment in S.C.231/74 as an estoppel per rem judicata. They merely pleaded that “the proceedings judgment and plans therein filed shall be founded upon.” It is also relevant to observe that the Plaintiffs did not as one would naturally expect, tender the entire proceedings in Suit No.C/12/1960. They merely tendered the portion dealing with the evidence of P.W.3 (page 47 lines 20-30 as Ex.L.) As much was made of this case C/12/1960 and its appeal judgment SC.231/1974 Ex. E – I will return to it later in this judgment.
The Defendants filed a Statement of Defence which they later amended in paragraph 9 and by adding a new paragraph 11(d). They too also averred that they are owners of the land in dispute and relied on “original occupation and deforestation” as their root of title. Like the Plaintiffs they based their claim to ownership and occupation of the land on their traditional history. Like the Plaintiffs also the Defendants pleaded several acts of possession and continuous ownership. Again like the Plaintiffs, the Defendants pleaded Suit No.C/12/1960 and its “ultimate dismissal by the Federal Supreme Court.”
Now the issues calling for determination and resolution from the pleadings are as follows:
1. Which traditional history is more probable, more likely to be true, and therefore, more acceptable
2. In case of doubt or there being nothing to choose between the two conflicting traditional histories which side has proved acts of possession more numerous and more positive to lead to the conclusion that they are owners of the disputed land.
3. What is the legal effect of Suit No.C/12/1960 and its appeal judgment SC.231/1974 on the rights of the parties
It will be interesting to see how the two courts below dealt with the 3 issues enumerated above.
The learned trial Judge, Akpabio, J. at p.120 of the record of proceedings recorded his findings on traditional histories of the parties thus:
“I have carefully considered the traditional history of the land as adduced by both parties, and can “find nothing to choose between them. Each side claims the land to belong to his village from time immemorial. Each also claims to have been exercising maximum acts of ownership on the land, living on it and burying their dead on it. In such a situation, the court usually has no alternative than to consider the evidence of possession adduced by both parties and see which is more numerous, which is more positive and who first got to the land (as far as can be gathered from the evidence).
After this careful review of the evidence, the learned trial Judge found at pp.122/123:-
“One may therefore say that of the three acts of users and enjoyment claimed by the Plaintiffs, none was shown on their survey plan, Exhibit ‘A’. On the contrary, the plan shows at least eleven houses, said to be ‘broken houses of persons from Afia Nsit ……….. All these houses, coupled with the farms said to belong to Afia Nsit people actually go to show that the Afia Nsit people were actually in possession of the land, both by cultivating it and building houses on it’..
And at p.125 the learned trial Judge categorically stated:
“I hold that the Plaintiffs have not proved that they had at any time ever been in actual and exclusive possession of the land in dispute, and further more, at the material time in this action, the defendants were in exclusive possession of the land. The claim for trespass must therefore fail.”
On the claim for Declaration of Title the learned trial Judge at p.125 stated clearly and held:-
“There is no evidence that title to the said land was ever awarded to the Plaintiffs by any Court of law, nor granted or conveyed to them by any person whatsoever either from time immemorial or otherwise. The claim for a declaration of title must therefore also fail.”
Having so found as above the learned trial Judge then dismissed the Plaintiffs’ claims in their entirety.
Before doing this the learned trial Judge carefully and meticulously considered Suit No.C/12/1960 and the Appeal Judgment of the Supreme Court SC.231/74 tendered as EX.E. Since the main Issue in this appeal is whether or not Ex. E constituted an estoppel and if yes whether or not the present Respondent can be granted a declaration of title based on the said estoppel, I will consider together the conflicting views of the two courts below on Ex. E.
Obviously dissatisfied and aggrieved by the judgment of Akpabio, J. the Plaintiffs appealed to the Court of Appeal Enugu Division. That Court in a lead judgment by Olatawura, J .C.A. concurred in by Aikawa and Katsina-Alu, JJ.C.A. allowed the Plaintiffs/Appellants appeal set aside the judgment of Akpabio, J. and granted the Plaintiffs a Declaration of Title to the land in dispute, N100 general damages for trespass and a perpetual injunction.
The Defendants in the original Suit before Akpabio, J. have now appealed to this court on 4 grounds.
In Ground 1 they complain that:
“(i) The Court of Appeal erred in law when it held (per Olatawura, J.CA.) that –
“My interpretation of Exhibit E, however, is that issue of title was raised in Exhibit E and the respondents are estopped from raising it,”
and also when it held that the High Court ought to have struck out paragraphs 11(a) – 11(d) and 13-15 of the Statement of Defence because they raise issues of title to and possession of the land in dispute.”
The Appellants formulated in their Brief of Argument 4 Questions for Determination. During his oral argument Mr. Sofunde, S.A.N. abandoned 3 Issues and rested his entire case on Issue No.1. This Issue reads:
“1. Whether Exhibit “E” could operate as estoppel.”
This Issue seems to be the most important and the most relevant Issue in this appeal.
Since the views and the positions of the two courts below were heavily coloured and substantially influenced by their respective interpretation and application of the Supreme Court Judgment in SC.231/74 EX.E as constituting an estoppel, it now becomes necessary to consider the meaning of an estoppel generally and the extent to which EX.E can be effectively used in this case. Generally when an estoppel binds a party to litigation, he is prevented from placing reliance on or denying the existence of certain facts. Therefore from the point of view of the party in whose favour it operates, an estoppel could be regarded as something which renders proof of certain facts unnecessary. To use the language of naval warfare, an estoppel must always be either a mine layer or a mine sweeper: it can never be a capital unit. Its function is either to place an obstacle in the way of a case which might otherwise succeed or else to remove an impediment out of the way of a case which might otherwise fail. That an estoppel is not a capital unit is amply shown by the observation of Brett L.J. in Simm v Anglo American Telegraph Co. (1879) 5 Q.B.D. 188, where he carefully hinted that “an estoppel gives no title to that which is the subject-matter of the estoppel ……” Lord Lyndhurst also expressed the same view in Bensley v Burdon (1830) 8 L.J.O.S. Ct. 85 at p. 88 that the expression title by estoppel is a mere negative title. It is a highly metaphorical and elliptical mode of indicating the use which may be made of the estoppel, as no title can be established wholly and solely by an estoppel. There is no doubt, an estoppel can greatly help a party to establish such title. Applying the above principle to this appeal, it is my view that the Plaintiffs/Respondents cannot establish their title to the land in dispute by Ex. E. They have to prove that title aliunde using Ex. E however as a weapon or a shield.
But what is it that EX.E decided.
That decision and the reasons for it can be summarised as follows:
“1. Although the claim was for damages for trespass the issue of title was raised in the pleadings. (See p.127).
2. Although the Plaintiffs gave evidence of possession and farming other than that based on the 1918 case, the learned trial Judge did not evaluate either such evidence or the contrary evidence of the Defendants…….” (p.130).
If one pauses here a bit it has to be pointed out that in Ex. E the present Plaintiffs/Respondents were Defendants in the original action before Balonwu J. (as he then was). Secondly, the present Defendants/Appellants were the Plaintiffs. They did not in that suit claim any declaration of title and no court could have rightly and lawfully awarded them that which they did not ever claim. Thirdly there was no counter-claim by the present Plaintiffs who were then Defendants. That being so nothing could have been awarded to them.
It is true that at the end of its judgment in SC.231/74(Ex.E) the court recorded the following at p.131 of the record of proceedings:
“The appeal, therefore, succeeds and it is allowed. The judgment of Balonwu J. in Suit C/12/60 delivered on 30th June, 1965 with its award of costs is hereby set aside. In substitution thereof, judgment is hereby entered in favour of the Appellants and the claim of the Respondents in the lower court is hereby dismissed.”
What was “the claim of the Respondents in the lower court” that was dismissed That claim was for Damages for trespass and Injunction. There was no claim for Title. One need not necessarily be an owner to claim trespass for in an action in trespass what it is required that the claimant proves, is exclusive possession not title.
It is also true that in Abotche Kponuglo v Adja Kodadja (1931)(P.C.) 2 W.A.C.A. 24 the Privy Council held that:
“The Respondent’s claim being one of damages for trespass and for an injunction against further trespass, it follows that he has put his title in issue.”
Putting one’s title in issue indirectly and consequentially, and positively and directly claiming a declaration of title, are two different propositions, and it is very necessary to keep this difference constantly in view when dealing with estoppels per rem judicaram. One has to know precisely what is being estopped. In fact the judgment in Kponuglosupra even adverted to this difference when their Lordships observed:-
“His claim postulates, in their Lordships opinion, that he is either the owner of Bunya land or he had prior to the trespass complained of, exclusive possession of it.”
(italics ours)
The “or” above is disjunctive not conjunctive. If the Plaintiff is owner he will invoke the aid of the decision in Johannes England v. J. Mope Palmer (1955) 14 W.A.C.A. 659 at p.660 to show that “in a trespass action an averment of ownership is consistent with and amounts to an averment of possession …. “If the Plaintiff is not the owner all he need show is exclusive possession prior to the trespass complained of. The present Appellants (who were Plaintiffs in C/12/60) could have succeeded on proof of exclusive possession.
But unfortunately the learned trial Judge as was clearly shown in EX.E did not evaluate the evidence of possession led on both sides. He did not make any findings on possession which is 9/10 of the law. He did not make any findings on title either. He was not called upon to make any such finding any way.
It was in such a state of affair that EX.E “entered judgment for the Appellants” who were the Defendants in suit No.C/12I60. As far back as 1935 our courts in J.M. Kodilinye v Mbanefo Odu 2 W.A.C.A. 336 dealt with this kind of judgment and observed at p.338:-
“Such a judgment declares no title to the Defendant, he not having sought the declaration. So if the whole evidence in the case be conflicting and somewhat confused, and there is nothing to choose between the rival traditional stories the Plaintiff fails in the decree he seeks and judgment must be entered for the Defendant.”
Thus the judgment entered for the Defendants/Appellants in EX.E was a judgment that decreed no title in them. Now the result in Suit No.C/12/60 and its appeal decision in SC.231/74 Ex. E was that neither the Plaintiffs, the present Appellants nor the Defendants, the present Respondents were (1) found by the trial Court to be in possession of the land now in dispute as the evidence of possession given on both sides were not evaluated (2) Neither the Appellants nor the Respondents had title decreed in them. Now when one talks of estoppel in relation with the 1960 case (C/12/60) which ended in SC.231/74 Ex.E, one has got to keep these important facts in mind and in view, because the rule about estoppel is that parties and their privies are estopped from denying not merely the state of affairs established by the judgment but also the grounds upon which that judgment was based.
This leads naturally to the reasons given for the decision of this Court in EX.E. At p.130 of the record the court dealt with the wrong use made by the learned trial Judge (in C/12/60) of the plan used in the land dispute in a 1918 case EX.E as if it were the same as the land in dispute in the 1960 case. This being so the court continued “his inferences drawn from the fact as to the title of Plaintiffs to the land in the 1918 case were therefore erroneous.” The court then concluded thus:-
“We are therefore, of opinion that the learned trial Judge was wrong in his treatment of the 1918 case and EX.E. We also think that he was wrong about his statement of the applicable principle of law, that is, that the weakness in the Defendants’ case may be a source of strength of the Plaintiffs’ case.
For these reasons this judgment cannot be allowed to stand.”
From the above it is as clear as crystal that the present Appellants who were Plaintiffs/Respondents in EX.E lost not because they did not prove title for none was claimed; not because they did not prove prior possession for their evidence of possession (the 1918 case apart) was not evaluated. They, however, lost because of what Akpabio J. at p.113 described as “two errors of law committed by the learned trial Judge who wrongly admitted a plan filed in a 1918 case” to which the present Respondents were not parties. Akpabio J. was very right when he observed that SC.231/74 EX.E “said nothing about the relative merits of the case for Plaintiff or Defendant.”
In their pleadings the Plaintiffs/Respondents merely pleaded the Supreme Court judgment EX.E without setting out how or what in that judgment constituted an estoppel by record – was it the giving of an empty judgment for the Defendants or the mere dismissal of the Plaintiffs’ case for trespass and injunction because of two errors committed by Balonwu J. A plea of res judicata can be maintained only when the same question as has been judicially decided was again raised between the parties. If therefore an action is brought, and the case is discussed on its merits and a filial judgment is obtained by either party then the parties are concluded and they cannot canvass the same question again in another action inter partes. The issue of title to the land in dispute was not canvassed and discussed in Ex.E; the entire case was not discussed on the merits and none of the parties – neither the Plaintiffs nor the Defendants – was awarded title to the land in dispute by EX.E. How then can it be said that EX.E estopped the present Appellants from claiming title to the land in dispute For the plea of estoppel per rem judicatam to apply there must have been a judicial determination of a cause agitated between the real parties, upon which a real interest has been settled: Harrop v. Harrop (1920) 3 K.B. 386. The principles underlying estoppel by record are
(i) Interest reipublicae ut sit finis litium – It is for the common good that there should be an end to litigation.
(ii) Nemo debet bis vexari pro una et eadem causa – No one should be sued twice on the same ground. No one shall be twice vexed for one and the same cause.
The Appellants in C/12/60 never sued for title so therefore they were not now suing the Respondents twice for title when they claimed a declaration of title before Akpabio, J. in Suit No.HU/8/76. Trespass to land and Declaration of title to land are two distinct and separate claims. These claims may arise from two distinct causes of action and an action in trespass will not constitute a bar to a future action for title: Brunsden v Humphrey (1884-85) 14 Q.B.D. 141.
But perhaps the most disqualifying factor militating against EX.E qualifying as an estoppel in this case is that it did not and I daresay it could not have given title to any of the contesting parties. It merely “entered judgment for the Defendants” (the present Plaintiffs/Respondents). A judicial decision is said to be final when it leaves nothing to be judicially determined thereafter in order to render it effective and capable of execution. In view of the decision in Kodilinye v Odu supra just what is it in EX.E that anybody can execute The answer is nothing. At best EX.E as it relates to the title to the land in dispute in this case is ambiguous and uncertain as it leaves the parties in doubt as to the exact extent of their rights in and over the land in dispute. It neither settled finally the issue of possession nor of title. Finality cannot be attributed to a decision such as EX.E. Finality is basic and crucial in pleas of estoppel per rem judicatam. It is not the mere raising of an issue that is binding on the parties. Rather it is the fact that such issue has been adjudicated upon and decided one way or another. When that is the case, it is not open to the losing party to re-open or re-litigate that issue which had already been decided and which should therefore be considered closed.
In his Brief of Argument dealing with the subject of estoppel, learned Senior Advocate for the Respondents submitted:
“The parties in this case are the same as the parties in Suit No.C/12/60, and the land in dispute in the present case was included in the land in dispute in Suit No.C/12/60.
In the said Suit No.C/12/60 which went on appeal to the Supreme Court of Nigeria as SC.231/74 the issue of title and possession of the land in dispute were raised.”
All these are true. The Brief is however totally silent on the point whether or not those issues of title and possession raised in C/12/6O and SC.231/74 were finally determined, a condition sine qua non to a successful plea of estoppel per rem judicatam.
The Respondents Brief then came along with this bold submission:
“By the Supreme Court dismissing the Defendants’/ Appellants’ case in Suit No.C/12/60 in which title and possession of the land in dispute which were the foundation of their case were raised, the Defendants/Appellants were estopped from asserting title and possession to the same land which is in dispute in the present case,”
I referred to the above submission as “bold” because it missed the essential pre-requisite of estoppel per rem judicatam – that there was a final determination of the issues raised. EX.E itself regretted that although the Plaintiffs (the present Appellants) gave evidence of possession and farming the trial Court in C/12/60 did not evaluate such evidence or the contrary evidence of the Defendants (the present Respondents).
In other words Suit No.C/12/60& SC.231/74 did not decide which of the parties had possession of the land in dispute. They also did not decide which of the parties owned the land now in dispute.
No findings were made either way.
In the absence of such definitive finding it will be idle for either party to plead C/12/60 or SC.231/74EX.E as estoppel per rem judicatam. In Suit No.C/12/60 the present Appellants were found to be in possession and were awarded damages for trespass. That judgment was reversed by and in SC.231/74 EX.E because of error of Balonwu J. in using a 1918 case not inter partes. EX.E did not make any findings either of possession or title in any of the contesting parties.
In Mogo Chinwendu v Nwanegbo Mbamali (1980) 3-4 S.C. 31 the different judgment relied upon for estoppel made definite findings on the issues in dispute. And here lies the essential difference between this case and those cited in the Brief of learned Senior Advocate for the Respondents.
The Respondents’ Brief referred to Mills v Cooper (1967) 2 All E.R. 100 In that case it was held that the doctrine of estoppel did not apply since the issue determined in the previous proceedings was that the respondent was not a gipsy in December, 1965; whereas in the present case the issue to be determined was whether he was a gipsy in March, 1966. If one follows the logic of this decision and applies same to the case on appeal, it can then be argued that the doctrine of estoppel did not apply since the issue decided in EX.E was that the present Respondents were not liable in trespass in 1960. That will not estop the Defendants/ Appellants from defending the Plaintiffs/Respondents 1975 suit for a Declaration of Title, Trespass and Injunction. If there had been a finding in C/12/60 or SC.231/74 EX.E that the land in dispute belonged to the Plaintiffs/Respondents then they could easily and successfully set up those findings as estoppel.
In Ezewani v Onwordi (1986) 4 N. W.L.R. (Pt.33) 27. This court drew attention to the two kinds of estoppel by record – cause of action estoppel and Issue estoppel. In either case there will be a distinct holding by a former Court which a latter court will not allow the parties to re-open and re-litigate. A party is precluded from contending the contrary or opposite of any specific point which having once been distinctly put in issue has with certainty and solemnity been determined against him. Viewed from this angle EX.E which did not determine either title or possession with certainty or solemnity could not have created and did not in fact, create, an estoppel by record. See also Bamishebi v Faleye (1987)2 N.W.L.R. (Pt.54) 51 at p.58; Dzungwe v Gbishe (1985) 2 N.W.L.R. (Pt.8) 528 at p.538.
In this case the learned trial Judge Akpabio J. was right in holding that EX.E which did not determine one way or the other the issue of title to the land in dispute did not constitute an estoppel against the present Defendants/Appellants pleading that the land in dispute belongs to them. The court below was, with the greatest respect wrong in awarding the Plaintiffs/Respondents title to the disputed land on the basis of EX.E for the learned trial Judge dismissed that title based on traditional history. Title based on Ex.E, is title by estoppel which is no title at all. The learned trial Judge also found that the Defendants/Appellants had been in continuous possession of the land in dispute at least from 1960 to March, 1975 when judgment in SC.231/74 was delivered. There was nothing to show that the Plaintiffs ever regained possession after March, 1975. Their present action brought in April, 1975 was obviously based on EX.E which did not give them possession. The award of damages be it even general damages to the Plaintiffs/Respondents by the court below was therefore erroneous. Not having title and/or possession in their favour, it was wrong to have granted the injunction the Plaintiffs/Respondents claimed as all these were against the findings of the trial Court. A Court of Appeal ought to be rather slow in reversing the findings of fact of a trial Court even if on the same evidence it would have come to a different conclusion: Woluchem v Gudi (1981) 5 SC.291 at p.326; Okuoja v Ishola (1982) 7 SC. 314 at p.349; Nwobodo v Chief Electoral Officer (1984) 1 SC. 1 at 53.
In the final result this appeal succeeds and it is hereby allowed. Since the issue of title to this land has been a thorn in the flesh of the parties to this case, justice demands that that issue be properly litigated and proper findings made. I will therefore order a retrial with a direction that EX.E does not constitute an estoppel against the present Defendants/Appellants. It may also be advisable for the present Defendants/Appellants to counter-claim for title to enable the court settle this issue once and for all. I will therefore make the following orders:-
1. This appeal is hereby allowed.
2. The judgment and orders of the Court of Appeal dated 9th December, 1985 are hereby set aside.
3. A retrial of this-case before another Judge of Akwa-Ibom State High Court is hereby ordered.
4. There will be costs to the Defendants/Appellants in this court assessed at N500.00.
NNAMANI, J.S.C.: Thad the advantage of reading in draft the judgment just delivered by my learned brother OPUTA, J.S.C. and I entirely agree with the reasoning and conclusions. I too agree that this appeal should be allowed and that a retrial of this case before another Judge of Akwa Ibom State High Court be ordered.
The main issue resolves around whether Exhibit E, i.e., suit. No.C/12/60 which ended in the Supreme Court as SC.231/74 should have raised an estoppel against the appellants herein who were plaintiffs in that suit. It is agreed that the appellants had in Exhibit E based their case on a 1918 case. Although they sued for trespass and injunction, there was also no doubt that title was raised in the pleadings. Furthermore, although Balonwu J. (as he then was) did not find title proved in them, and although the Supreme Court mismissed the case, it is clear that, looking at the proceedings, Balonwu J. neither evaluated the evidence of possession by both sides nor had he found title in any party. It thus seems to me therefore, that this is certainly not a case in which there has been a definite decision by the court on an issue between the parties such that either estoppel per rem judicatam or issue estoppel can apply. See the case of Mogo Chinwendu v Mbamali (1980) 3-4 S.C. 31: Nwawuba’s case (1988) 2 N.W.L.R. (Pt.78) 581.
KARIBI-WHYTE, J.S.C.: I have had the privilege of reading in its draft form the judgment of my learned brother Oputa, J.S.C. I agree that this appeal be allowed.
I have not concerned myself with any other aspect of this appeal other than ground one which challenges the contention by the Court of Appeal that an estoppel per rem judicata can arise from an issue raised but not distinctly decided in a litigation even though it was not a claim before the Court. Counsel to the appellant conceded questions 2 & 3. The other grounds of appeal have been comprehensively dealt with in the judgment of my learned brother. I agree with his conclusion.
For ease of reference I set down the relevant ground of appeal considered in this judgment Ground one of the grounds of appeal is as follows-
(1) The Court of Appeal erred in law when it held (per Olatawura, J.C.A) that-
“My interpretation of Exhibit E however is that issue of title was raised in Exhibit E and the respondents are estopped from raising it and also when it held that the High Court ought to have struck out paragraphs 11(a)-11(d) and 13-15 of the statement of defence because they raised issues of title to and possession of the land in dispute.”
Particulars of Error
(a) The fact that a party raised an issue in an earlier case precludes him from raising the same issue in a subsequent case only where that issue was actually decided in the earlier case.
(b) Neither the issue of title nor indeed the issue of possession (though raised in Exhibit E) was actually decided by the Supreme Court in proceedings before them.
Counsel are agreed on the formulation of the questions for determination. The issue for determination which relates to this ground of appeal is whether the defendants/Appellants were estopped by the Supreme Court judgment SC.231/74, Exhibit E in the proceedings from asserting title to and possession of the land in dispute against the plaintiffs/Respondents Simply put, whether Exhibit “E” can operate as estoppel
I consider it of some assistance to trace even if in outline the history of the litigation between the parties in respect of the land in dispute. There was Suit No. C/12/1960 which went on appeal to the Supreme Court as SC.231/74. Appellants as Plaintiffs had brought an action against the Respondents as Defendants, claiming damages for trespass and injunction in respect of this same land. Judgment was entered for them in the High Court, but this was reversed on appeal. The Supreme Court dismissed the claim, and refused to order a non-suit on the grounds that a non-suit will not meet the justice of the case. The action was concluded in 1975. The present Respondents who were the Defendants in the Suit No.C/12/1960, and appellants in SC.231/74, have now brought this action as Plaintiffs claiming declaration of the, damages for trespass and injunction, against defendants who were the plaintiffs in Suit No.C/12/1960 and Respondents in SC.231/74. The learned trial Judge dismissed the Plaintiffs/Respondents claims. The Court of Appeal allowed the appeal against the judgment of the learned Judge and entered judgment for the Plaintiffs/Respondents. The appeal before this Court is against that judgment.
Mr. Sofunde, S.A.N. of counsel to the appellants in his brief of argument, arguing the first ground of appeal, referred to the Supreme Court judgment, Exhibit E. i.e. SC.231/74 and pointed out that the claims therein were for damages for trespass and an injunction. It was submitted that although issues of fact as to ownership were raised, but there was no such, claim before the court. Counsel argued that Exhibit E could not create estoppel because the issue of title was raised but not decided in that case. Appellants cannot therefore be estopped from relitigating the issue of title. This last submission was rejected by the Court of Appeal both in the judgment of the learned trial Judge and in submission to the court by counsel.
Mr. Egonu, S.A.N. for the Respondents on the other hand submitted that the judgment of the Supreme Court in SC.231/74 between the parties in which the issue of title and possession of the land in dispute were raised estopped the Defendants/ Appellants from asserting title and possession to the same land in dispute in the present case. The Court of Appeal would appear to have been persuaded by this submission. His contention was that if the Supreme Court on the totality of the evidence in that case had on appeal found it just to allow the present Defendants/Appellants to assert title and possession to the land in dispute in any future proceedings between the parties, it would have granted the application for an order for non-suit, or it would have suo motu ordered a retrial of the suit. This, the Supreme Court did not do. The issue of title and possession of the land it was submitted were the foundation of the claim in SC.231/74.
There appears to be some misunderstanding on the real nature and scope of the doctrine of estoppel per rem judicatam relied upon. I therefore briefly state the nature and scope of the aspect of the doctrine applicable.
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 in issues in litigation which merely form part of matters to be decided. It may also arise by conduct of the parties. We are concerned in this case with the first circumstance referred to as estoppel per rem judicatam.
Section 53 of the Evidence Act provides as follows-
“Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the court, and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.”
In Ikpang & Ors. v. Chief Sam Edoho & anor. (1978) 6& 7 Sc. 221 Aniagolu J.S.C. said,
“It is fundamental law that to sustain a plea of res judicata in a case the party raising the plea must show that the parties, the issues and the subject-matter of the current case are the same as in the previous case adjudicated by a court of competent jurisdiction before whom the proceedings terminated to finality. Put in another way, a final judgment already decided between the same parties or their privies on the same question by a legally constituted court having jurisdiction is conclusive between the parties and the issue cannot be raised again.”
In New Brunswick Rail Co. v. British and French Trust Corporation Ltd. (1939) A.C. 1, Lord Maugham at pp. 19-20 expressed the position accurately when he said,
“the doctrine of estoppel (per rem judicatam) is one founded on considerations of justice and good sense. If an issue has been distinctly decided in an action, in which the parties are represented, it is unjust and unreasonable to permit the same issue to be litigated afresh between the same parties or persons claiming under them.”
It is therefore important for the issues in the earlier case to be identical with those in the current case in which the estoppel is raised, and the issue so relied upon to have been raised and distinctly decided in the earlier case. Finally, the parties or their privies must be the same. It should not be a decision by implication.
In New Brunswick Railway Co. v. British and French Trust Corporation (supra), Lord Romer elaborated further at p.43 when he said;
“It is no doubt true to say that whenever a question has in substance been decided, or has in substance formed the ratio of, or been fundamental to, the decision in an earlier action between the same parties, each party is estopped from litigating the same question thereafter. But this is very different from saying that he may not thereafter litigate, not the same question, but a question that is substantially similar to the one that has already been decided.”
These are very clear statements of the law which have been followed in our courts. It seems to me strange that the Court of Appeal reacted differently to the submission that the Supreme Court in SC.231/74 never decided the issue of title. The Court of Appeal in rejecting the submission, said,
“It is clear and leaves me in no doubt whatsoever that the claim for title and possession were dismissed” at p.245 For this conclusion the Court observed at p.245
“Once the learned counsel himself admitted that the Respondents’ claims were dismissed, one will only look at the claim as formulated in paragraph 6(a) and (b) of the statement of claim. From this paragraph it appears to me that the Supreme Court has finally decided the issue of title.”
The Court of Appeal held that a person claiming damages for trespass and injunction invariably puts title in issue. Thus the Court of Appeal was saying that the title raised impliedly by the claims for trespass and injunction was distinctly decided when the Supreme Court on appeal dismissed the claim for trespass and injunction and refused to order a non-suit. This is surely not the case. It is clear from the writ of summons that the claim in C/12/60 which was reversed on appeal in SC.231/74, did not claim title and was as follows-
(a) 500 Pounds being general damages for trespass.
(b) Perpetual injunction restraining the defendants, their agents or servants from further acts of trespass to the said land.
There was no claim for title. There is no doubt that title may be in issue in a claim for damages for trespass but title is not a necessary issue to be determined in a claim in trespass. In an action for damages for trespass to land, it is sufficient for Plaintiff to prove mere possession – See Chief Kojo Bosor v. Chief Kessie 2 W.A.C.A. 65. Thus title even if in issue is not an essential prerequisite for a claim for damages for trespass. Thus even where title is in issue for a decision to operate as estoppel, that issue must be distinctly raised and determined. In the case in question, the Supreme Court did not in SC.231/74 consider the question of title, not only because it was in fact not a claim before it but because its decision was founded on other grounds. Mr. Sofunde is right in his submission that the basis of the Supreme Court judgment in SC.231/74 was not the issue of title raised in the pleadings, but were as the Supreme Court said, based on the wrong view of the law on the burden of proof held by the learned Judge, and his treatment of the 1918 judgment.
The Supreme Court stated the reasons thus –
“the learned Judge was wrong in law when he said;
“In doing this I bear in mind that it has also been held by the Federal Supreme Court that the weakness of a defendant’s case may be a source of strength to the case of Plaintiff.”
“It is difficult to assess how much of this wrong view of the law has affected the learned trial Judge in his judgment and, in the absence of this, it will be unsafe to allow this judgment to stand.
We are, therefore of the opinion that the learned trial Judge was wrong in his treatment of the 1918 case and Exhibit E. We also think that he was wrong about his statement of the applicable principle of law, that is that the weakness in the defendants case may be a source of strength of the Plaintiffs case. For these reasons this judgment cannot be allowed to stand.”
There is no doubt from the above rationes of the judgment in SC.231/74, that title though pleaded and raised was not distinctly decided and therefore cannot constitute an estoppel in any subsequent litigation between the parties or their privies. Title did not form one of the reasons for the judgment. Mr. Egonu’s submission that the Supreme Court was in Exhibit E called upon to decide the question of title cannot therefore be right.
The particulars of claim in the instant case before us and paragraph 7 of the statement of claim distinctly raise the title. The writ of summons is for “inter alia”
“1. A declaration that the plaintiffs are the titular owners in possession of the piece or parcel of land situate at Akpa Utong within the jurisdiction of this court and known and called “Ekpene Ibiok” of the annual value of N10
2. N1,000 general damages for trespass in that on or about 30th day of April, 1975, the defendants by themselves, servants and agents unlawfully broke and entered the plaintiffs’ said “Ekpene Ibiok” land and destroyed plaintiffs’ houses and economic crops and built huts thereon without leave or licence of the Plaintiffs. The defendants will continue the said acts of trespass unless restrained.
3. Perpetual Injunction restraining the defendants, their servants and or agents from further acts of trespass in or over the said piece or parcel of land.”
A careful reading of the relevant paragraph of the statement of claim where the Supreme Court judgment SC.231/74 was pleaded and founded upon reveals that the issue of title was not included. Paragraph 7 of the statement of claim avers:
“7. In suit No. C/12/1960 the defendants (then Plaintiffs) sued the Plaintiffs (who were then defendants) at the Calabar High Court, claiming damages for trespass and injunction over “Ndun Obio Nko” land. Judgment was given in favour of the defendants on 30th June, 1965, but was reversed on appeal SC.231/74 by the Federal Supreme Court on 21st March, 1975, and dismissed the defendants’ case. The proceedings, judgments and the plans therein filed shall be founded upon. It is the plaintiffs’ “Ekpene Ibiok” land which the defendants’ called “Ndun Obio Nko.”
It is important to emphasise the fact that the law is not that the issue of title in the current case should be substantially similar to the issue of title raised in the earlier case even if distinctly decided in the latter. Similarity of issues is not the thing. The issues distinctly decided to constitute estoppel in subsequent litigation must be identical- See Lawal v. Dawodu (1972) 1 All N.L.R. (Pt. 2) 270 at p.282. I think the Court of Appeal was wrong in holding that the Supreme Court in reversing the trial Judge and dismissing the claim in SC.231/74 decided the issue of title which ill their opinion was implicit in the refusal of the Supreme Court to order a non-suit. The learned trial Judge was right when he said;
“An action in trespass can fail on a number of grounds e.g. that there was no convincing proof that defendants had entered plaintiffs’ land, or that the plaintiffs had not established the identity of his land with sufficient certainty, or that inadmissible evidence was admitted as in the case in Exhibit E. In any of these cases the plaintiffs could not be estopped from continuing to assert that the land in question belonged to him.
I therefore hold that the doctrine of res judicata cannot estop the present defendants from asserting that they were the owners of the land in dispute. All it boiled down to is that they could not sue the people of Akpa Utong a second time for the trespass of 1960. Paragraphs 11(d), 13, 14 and 15 of the statement of Defence in this case shall therefore not be struck out.”
I agree entirely with this opinion which accurately represents the law. The doctrine of estoppel per rem judicatam is the product of our adversary system of litigation. The essence of the system is that unless an issue litigated as between opposed parties is distinctly decided upon by a properly constituted court it remains open to be litigated in the future if it becomes an issue. But once distinctly and actually raised and decided it should be regarded as for ever decided – See generally Diplock L.J. in Thoday v. Thoday (1964) p.181.
As I have already pointed out in this judgment, the issue of title was not decided in SC.231/74, accordingly SC.231/74 cannot operate to estop the raising of the issue of title in the instant case. The Court of Appeal was wrong to hold that it did. This ground of appeal therefore succeeds.
I agree with the fuller and other reasons given by my learned brother Oputa, J.S.c. in his judgment for allowing this appeal and ordering a retrial.
The judgment and orders of the Court of Appeal dated 9th December, 1985 are hereby set aside. A retrial of this case before the High Court of Akwa-Ibom State is hereby ordered. The Respondents shall pay to the Appellants costs assessed at N500 in this court.
AGBAJE, J.S.C.: In the High Court of Justice of Cross River State, the plaintiffs sued the defendants for declaration of title to land, damages for trespass to land and an injunction. In support of their claims the plaintiffs relied on traditional history, acts of ownership within living memory, and a previous suit between the parties in respect of the land in dispute, to wit suit No. C/12/1960, as estopping the defendants from denying the plaintiffs’ title to the land in dispute. The defendants for their part resisted the plaintiffs’ claims by relying on traditional history and acts of ownership too. The plea of estoppel was contested.
The case was tried by Akpabio J. who in his judgment dated 4/3/80 dismissed the plaintiffs’ claims holding as regards the plea of estoppel as follows:-
“The sum total of the foregoing is that although issue of title was raised in the 1960 case, yet no title was claimed by the then plaintiffs, and none was declared for or against them. The present defendants, cannot therefore be estopped from asserting that they are the owners of the land in dispute from time immemorial.”
On the traditional history adduced on either side the trial Judge held as follows:-
“I have carefully considered the history of the land as adduced by both parties, and can find nothing to choose between them.”
On the acts of ownership relied upon by the plaintiffs the learned trial Judge held as follows:-
“One may therefore say that of the three acts of users and enjoyment claimed by the plaintiffs, none was shown on their survey plan, Exhibit ‘N. On the contrary, the plan shows at least eleven houses, said to be ‘broken houses of persons from Afia Nsit, most of them are said to have been built after the High Court Judgment in 1965 and also said to constitute cause of action. The names of the owners of these houses are also indicated. All these houses, coupled with the farms said to belong to Afia Nsit people”..
Specifically on the issue of trespass the trial Judge said:
“On their own admission, the defendants had been in possession for a period of ten years (1965-1975) immediately before the alleged trespass. That means the plaintiffs themselves were not in possession of the land. They could not therefore have maintained an action in trespass, because only a person in possession of land could sue in trespass.”
The plaintiffs appealed against the judgment to the Court of Appeal Enugu Division which allowed the plaintiffs’ appeal. In the lead judgment of Olatawura J.C.A. in the case in which Aikawa and Katsina-Alu JJ.C.A. concurred, the learned Justice of appeal said as regards the plea of estoppel in question.
“The learned trial Judge after his examination of Suit C/12/60 said:
“It is clear from the foregoing in the 1960 case which gave rise to the Supreme Court Appeal in Exhibit ‘E’ only Damages for trespass and Injunction was (sic) claimed and duly granted. “No claim for a “Declaration of Title” to land was made, and none granted.”
It is the law that a person claiming damages for trespass and injunction has put title in issue. In fact Mr. Ukot made this clear in his brief. The learned trial Judge overlooked this aspect of the law at one state. So much Mr. Ukot admitted when in his brief he concluded thus:
“The dismissal had nothing to do with title or possession although, by coupling trespass with injunction in his suit that plaintiff thereby technically raised the issue of title.”
I will therefore reject the submission of the respondents’ learned Counsel that although the issue of title was raised in the former case (Exhibit E), it was not decided by the Supreme Court and that the respondents cannot therefore be estopped.”
So on this point the learned Justice of Appeal concluded as follows:-
“My interpretation of Exhibit E however is that issue of title was raised in Exhibit E and the respondents are estopped from raising it again.”
The learned Justice of Appeal upheld the contention that the trial Judge ommitted an irregularity in making use of the whole of Exh. L. in the case when only a portion thereof was put in evidence to discredit a witness. In commenting on the findings of the trial Judge as to the acts of ownership
upon which the plaintiffs placed reliance, the learned Justice said:
“Within the area verged Pink is a rectangular “The area in dispute is dotted here and there with farms of yams, cassava, cocoyams vegetables etc. cultivated by the plaintiffs.” To the west of that rectangular box are two remarks “stump of palm tree cut down by defendant cause of action.” The two palm trees were so indicated in Exhibit A. Almost on the Eastern boundary of Exhibit A were indicated the positions of Ukana tree and Mkpo tree. To the south-west of this plan can be found pear and palm trees. It was therefore a glaring oversight on the part of the learned trial Judge not to see these farms and economic trees as indicated…
Continuing the learned Justice of appeal said:
“On the evidence offered by the appellants, there is sufficient evidence before the learned trial Judge to have found that the appellants had been in possession and exercised various acts of ownership. He has excluded the traditional history offered by both parties. The Judge has accepted the area verged pink in Exhibit A as the area in dispute. The learned trial Judge had also accepted that the identify of that land is not in dispute. On the totality of the evidence before the court, judgment should have been given in favour of the appellants.”
In the end, the Court of Appeal entered judgment for the plaintiffs in terms of their claims. The defendants have now appealed to this court against that judgment.
The issues arising for determination in this appeal arc in my view as the defendants stated them in their brief of arguments and they are as follows:-
“(1) Whether Exhibit ‘E’ could operate as estoppel.
(2) Whether the learned trial Judge was wrong in making use of the whole of Exhibit L
(3) Whether the learned trial Judge was wrong as to his finding that there were no economic crops in Exhibit ‘A’ and B
(4) If the answer to either of, or both of, questions 2 and 3 is/are in the affirmative, whether the Court of Appeal was right in entering judgment for the Plaintiffs”
In the consideration of issue (1) I have to set down the relevant part of the decision of the Supreme Court in Exh. E which is as follows:-
“Although the Plaintiff’ gave evidence of possession and farming other than that based on the 1918 case, the learned trial Judge did not evaluate either such evidence or the contrary evidence of the defendants. His mind would appear to have been beclouded by his view on the 1918 case and Exhibit E. Learned Counsel for both parties, that is, Mr. Okorie for the Appellants and Mr. Esinfor the Respondents, agreed that the learned trial Judge was wrong in law when he said:-
“In doing this, I bear in mind that it has also been held by the Federal Supreme Court that the weakness of a defendant’s case may be a source of strength to the case of Plaintiff.”
It is difficult to assess how much of this wrong view of the law has affected the learned trial Judge in his judgment and, in the absence of this, it will be unsafe to allow this judgment to stand.
We are, therefore, of the opinion that the learned trial Judge was wrong in his treatment of the 1918 case and Exhibit E. We also think that he was wrong about his statement of the applicable principle of law, that is that the weakness in the defendant’s case may he a source of strength of the plaintiffs case. For these reasons this judgment cannot be allowed to stand. Mr. Esin, learned Counsel for the Respondents, has asked us to non-suit the respondents’ claim, but this was strongly opposed by the learned Counsel for the appellants. We are convinced that a non-suit will not meet the justice of this case. The appeal, therefore, succeeds and it is allowed. The judgment of Balonwu J. in Suit C/12/60 delivered on 30th June 1965 with its award of costs is hereby set aside. In substitution thereof, judgment is hereby entered in favour of the appellants and the claim of the respondents in the lower Court is hereby dismissed. We award costs of 256 Naira in favour of the appellants in this court and 80 Naira in the High Court. This shall be the judgment of the Court.” (Italics mine).
See Aseimo v. Amos (1975) 2 S.C. 57 and Asagba v. Ogaje (1972) 11 SC 139. The claim in exhibit E was one for damages for trespass and an injunction. The claims were as follows:
“The plaintiffs’ claim from the Defendants jointly and severally the sum of 500 Pounds being general damages for trespass in that the Defendants during the month of February, 1960, without the leave or licence of the Plaintiffs, wrongfully broke and entered Plaintiffs’ piece and parcel of land known and called NDUN OBIO NKO situate at Afia Nsit (2) in the Calabar Province, which had been in actual and peaceable possession of the Plaintiffs, and brushed same for farming. (b) Perpetual Injunction re-straining the defendants, their agent and or servant from further acts of trespass to the said land NDUN OBIO NKO.”
It is evident that it was the above claims that were dismissed in Exh. E.
Section 53 of the Evidence Act provides as follows:-
“Every judgment is conclusive proof, as against parties and privies, of acts directly in issue in the case, actually decided by the court, and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.”
So the decision in Exh. E is conclusive as between the parties and their privies to it of facts directly in issue in the case and actually decided there. So the plaintiffs therein could no longer sue the defendants therein for the trespass alleged therein or for an injunction in respect of that trespass. That judgment would also be conclusive between the parties and their privies as to the grounds on which the judgment was based.
Truly enough a claim for trespass and injunction puts title in issue see Kponuglo v, Kodadja 2 W.A.C.A. 24, So in the case in hand if the decision E dismissing the plaintiffs’ claims therein was on the finding of fact that the plaintiffs were not the owners of the land in dispute, that decision would estop those plaintiffs from later asserting against those defendants that they the plaintiffs were the owners of the land in dispute. But the decision in Exh. E. was not at all on such a ground. The issue of title was not pronounced upon in Exh. E, though it was raised in the case. So I am satisfied that the trial Court was right in holding that Exh. E. could not create an estoppel on the issue of title raised in this case and that the court of appeal was wrong in holding otherwise.
Issue estoppel will only arise in a subsequent suit when that issue had been raised and distinctly determined in a previous suit between the parties. See Fidelitas Shipping Co. Ltd. v. V/O Exportchleb 1966 1 Q.B, 630 which was cited with approval by this court in Lawal v. Dawodu & Ors. 1972 1 All N.L.R, part 2.270 at page 282.
I am not persuaded to hold that the Court of Appeal was wrong in holding, one, that the trial Court made improper use of Exh. L in this case and, two, that the evidence for the plaintiffs as to acts of ownership did not receive adequate or sufficient consideration at the hands of the trial Judge. So, I am satisfied that the Court of Appeal the lower Court, was right in over turning the decision of the trial Court on facts and allowing the plaintiffs’ appeal to it. See Agbeyegbe v. Seismograph Services (1978) 6 – 7 SC, 205. This however is a far cry from saying that the Justices of the Court of Appeal, were right when they came to the conclusion that on the evidence adduced by the plaintiffs they were entitled to judgment on their claims. The evidence was not accepted by the trial Judge albeit for the wrong reasons. The evidence before the trial Court was not at all one way on the point at issue. The evidence for the defendants on the point at issue was not rejected by the trial Court.
It is not the business of the Appeal Court to make findings of fact when such findings depend upon the credibility of witnesses, which is the case in the instant case, as opposed to findings of fact based upon inferences drawn from undisputable facts, which is not the case here. See Akinola v. Oluwo (1962) 1 All N.L.R. (part 2) 724 at page 227.
In the circumstances the proper order the lower Court should have made having set aside the findings of fact of the trial Court and allowing the defendants’ appeal to it was one for a retrial of the case and not one entering judgment for the plaintiffs.
It is for the above reasons and the fuller reasons given in the lead judgment of my learned brother Oputa, J.S.C. that I will allow the appellants appeal set aside the judgment of Court of Appeal and that of the trial Court and enter an order for a retrial of the whole case. I award the appellants the costs of this appeal assessed at N500.00. The costs in the court below and the trial Court shall abide the result of the retrial.
WALI, J.S.C.: I have had the privilege of reading in advance the judgment of my learned brother, Oputa, J.S.C. and I agree with the reasoning and the conclusions therein. I adopt same as mine and have no desire to add anything.
For those same reasons, the appeal succeeds and it is allowed. The judgment and orders of the Court of Appeal Enugu, are hereby set aside and in place thereof an order for a retrial of the case before another Judge of Akwa Ibom High Court is substituted.
The appellants are awarded costs of N500.00 in this court.
Appeal Allowed.
Retrial Ordered.
Appearances
E.O. Sofunde, S.A.N. (with him, Mrs. M. O. Ayeni) For Appellant
AND
R. I. Egonu, S.A.N. (with him, P.C.O. Nwagbo) For Respondent