UDE & ORS v. AGU & ORS
(2020)LCN/15655(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Tuesday, June 30, 2020
CA/E/70/2015
Before Our Lordships:
MisituraOmodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
1. NELSON UDE 2. OJI NWUDE 3. UDEGBUNE CHUKWU (For Themselves And On Behalf Of People Of Umuakwali Family, Okpobeze Village Nachi Formerly In Udi Local Government Area But Now In Orji River Local Government Area) APPELANT(S)
And
1. JOSEPH AGU 2. JOSEPH EZE 3. DOMINIC AGU 4. EMMANUEL AGU 5. RAPHEAL EZE 6. ROMANUS UKPAKA RESPONDENT(S)
RATIO:
A FINAL PRONOUNCEMENT ON AN ISSUE BETWEEN PARTIES IN A SUIT IS NOT ALLOWED TO RE-OPEN
It is a matter of public policy that there must be a limit and end to litigation. Thus where a Court has made a final pronouncement or decision on an issue between the parties in a suit in respect of a subject matter, none of the parties will be allowed to re-open the same issue in another suit between the same parties or asserting something contrary to the judicial determination. See A.G. NASARAWA V. A.G PLATEAU STATE (2012) LPELR- 9730 (SC) AT 52-53 (B-G) where the Supreme Court Per ADEKEYE, J.S.C. stated the meaning of estoppel per rem judicatam and conditions for its applicability as follows:
“Estoppel per rem judicatam otherwise known as estoppel by record arises where an issue of fact has been judicially determined in a final manner between the parties by a Court or a tribunal having jurisdiction, concurrent or exclusive in the matter and the same issue comes directly in question in subsequent proceedings between the parties or their privies MISITURA OMODERE BOLAJI-YUSUFF,J.C.A
THE PLEA OF RES JUDICATA AS A SHIELD AND NOT A SWORD
The plea of Res judicata is used as a shield and not as a sword. As a successful plea constitutes a bar to any fresh action as between the parties or their privies. It is as a plea, a bar and as evidence it is conclusive. Once a plea of Res judicata has been established, the jurisdiction of the Court would be ousted. Where the plea of estoppel per rem judicatam is raised, the Court in determining whether the issues, the subject matter of the two cases and the parties are same is permitted to study the pleadings, the proceedings and the judgment in the previous proceedings. The Court may also examine the reasons for the judgment and other relevant facts to discern what was in issue in the previous case. It is therefore a question of fact whether the parties and their privies, the fact in issue and the subject matter of the claim are the same in both the previous and the present case.”
See also ZUBAIR V. KOLAWOLE (2019) LPELR-46928(SC) AT 39-43 (C-B). MAKUN & ORS. V. FUT MINNA & ORS. (2011) LPELR-15514 (SC) AT 26-27 (E-F). YANATY PETROCHEMICAL COY. V. EFCC(2017) 43473 (SC) AT 57-58 (C-C). . MISITURA OMODERE BOLAJI-YUSUFF, J.C.A
REPRESENTATIVE CAPACITY AND THE DOCTRINE OF ESTOPPEL PER REM JUDICATAM
See OKUKUJE V. AKWIDO (2001)LPELR-2526(SC) AT 12-13 (D-B) where the Supreme Court per KATSINA-ALU, J.S.C
“It is now settled law that where an action is brought by a person in a representative capacity against another person personally and prosecuted to judgment, and later a further action is brought against him in representative capacity by the plaintiff in the original action, the judgment is not the same, since in the earlier action the defendant is sued in his personal capacity and in the latter action as a representative of a class of persons. See Shitta-Bey &Ors v. The Chairman LEDB &Ors (supra); Ezeanya v. Okeke (supra). In the later case, this Court per Iguh, JSC held thus: “Where an action is brought against the defendant personally and prosecuted to judgment, and later a further action is brought against him in a representative capacity by the plaintiff in the original action, the judgment is not res judicata as the parties to the respective actions are not the same, since in one action the defendant is sued personally and in the other as representative of a class of persons.” Also in Udeze&Ors. v. Chidebe&Ors. (1990) 1 NWLR (Pt.125) 141…” The law is settled that all the pre-conditions for the application of the doctrine of estoppel per rem judicatam must co- exist. Where there is a failure to establish any of the pre-conditions, the plea of estoppel per rem judicatam must fail. See ACHIAKPA & ANOR. V. NDUKA & ORS. (2001) LPELR-64(SC) AT 22-23 (G-E), BALOGUN & ORS. V. ODE & ORS. (2007) LPELR-719 (SC) AT 21-22 (A-A). The burden is on the party who sets up the defence of estoppel per rem judicatam to establish the pre-conditions conclusively. In the instant case, the respondents failed to discharge the burden placed on them by the law to establish all the pre- conditions for the application of the doctrine of estoppel per rem judicatam. The Court below erred when it held that the doctrine of estoppel per rem judicatam applies in the instant case. MISITURA OMODERE BOLAJI-YUSUFF,J.C.A
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): The appellants herein instituted suit no. HOR/E/681/96 in the High Court of Enugu State, Orji River Judicial Division and claimed the following reliefs in paragraph 12 of their Further Amended Statement of Claim against the respondents:
a. “A declaration that the plaintiffs are entitled to a Customary Right of Occupancy over the Southern portion of IkpoagaAniokpa land situate at Nachi formerly in Udi LGA but now in Orji River LGA, Enugu State.
b. N500,000.00 damages for trespass.
c. Injunction restraining the defendants, their servants, agents or privies from acts of trespass over the land in dispute.”
The appellants averred in paragraphs 2C, 2D, and 3 of their Further Amended Statement of claim that:
2c. “The plaintiffs and defendants are people of Okpobeze village in Nachi, Oji River L.G.A. but of different families. Okpobeze is made up of 12 different families. The plaintiffs are from Umuakwali, the defendants are from Umudi.
2d. Some people of Umudii.e (families of Umuaguomam and Umueneano) the defendants herein sued someplaintiffs’ people of Umuakwali in Suit No. E/175/76 for declaration of title, damages for trespass and perpetual injunction and their case was dismissed in favour of the plaintiffs over their portion of IkpogaAniokpa land marked pink in their Survey Plan No. MEC/1380/77. Judgment in the suit was delivered by Chief Honourable Justice A. I. Igu, J. (as he then was) in 1981. Copy of which is hereby pleaded together with the statement of claim of the suit.
3. The people of Umuota family had sued the plaintiffs Suit No. E/153/76 and the people of Umuaguomam and Umueneano in Suit No. E/175/76 also sued some people of the plaintiffs and lost their respective claims of ownership of the land in dispute to the plaintiff.”
In their Comprehensive Amended Statement of Defence, the respondents averred as follows in paragraph 6 of their comprehensive Amended Statement of Defence:
6. As regards paragraph 3 of Amended Statement of claim. The defendants admit that they sued the plaintiffs in Suit No. E/175/76, they also admit that the claim was dismissed because the Court found as a fact that neither the defendants nor the plaintiffs who were thedefendants in that case, had exclusive possession and ownership of the land in dispute. It is on this very land that the plaintiffs are now claiming exclusive ownership. The defendants make no further admission as regards paragraph 3 of the Amended Statement of claim.”
The respondents in paragraph 10(v) of their answer to pre-trial information sheet (Form18) raised an issue of law as to whether the judgment in Suit No. E/175/76 does not constitute res judicata against the plaintiffs now the appellants. The Court decided to proceed with the bearing of the case to enable it get the facts in the two cases. At the end of trial and addresses, the Court below in its considered judgment delivered by I. O. Okereke J. on 28/3/2014 upheld the plea of estoppel per rem judicetam and dismissed the suit.
Being dissatisfied with the judgment, the appellants filed a notice of appeal against the judgment on 24/6/2014. The three grounds of appeal and their particulars are as follows:
GROUND 1
“The Court below erred in law when he held that the defendants are representing the people of Umudi when the claim before the Court did not show that thedefendants are sued in representative capacity.
PARTICULARS OF ERROR
i. The judgment refused to recognise the status of the defendants in the suit as being sued personally.
ii. The defendants are not all from Umudi family as two of them are from different towns outside Nachi Town.
iii. The respondents did not file a counter-affidavit to controvert the contents of the affidavit in support of the application to set aside.
GROUND 2
The learned Court below erred in law when he held that the judgment in suit No. E/175/76 availed the defendant to benefit from the doctrine of estoppel per rem judicata.
PARTICULARS OF ERROR
i. The particulars of Res Judicata cannot apply where the parties are not the same.
ii. The plaintiffs did not at any time before this action take any action against the people of Umudi.
iii. It was the people of Umudi that took out suit No. E/175/76 against the plaintiffs.
iv. The said suit was struck out and not dismissed.
GROUND 3
The trial Court failed to properly consider and evaluate the evidence before it in the judgment.
PARTICULARS OF ERROR
i. It is the duty of thetrial judge to consider the totality of the admissible and credible evidence and weigh them on a scale and find the one that is heavier.
ii. The judgment is against the weight of evidence.”
The appellants’ brief of argument was filed on18/6/2015. It was deemed as properly filed and served on 24/6/20. The respondents’ brief was filed on 14/2/19. It was also deemed as properly filed and served on 24/6/20. Counsel on both sides adopted their respective briefs. The appellant raised the following issues for determination:
1. “Whether the learned trial judge was right when he held that the defendants/respondents are representing the people of Umude, when the claim before the Court did not show that the defendants were sued in representative capacity?
2. Whether the learned trial judge was right, when he held that the judgment in suit No. E/175/76 availed the defendants/respondents to benefit from the doctrine of estoppel per Rem judicate.”
The respondents adopted the two issues raised by the appellants. The two issues were argued together by counsel on both sides.
The appellants’ counsel submittedthat the parties, the issues and the subject matter in the previous suit must be the same as those in the present suit before the doctrine of estoppel per rem judicatam can be sustained. In addition the parties must have been sued in the same capacity in the two actions, the matter must have been decided on merit and the judgment must not have been obtained by fraud. He referred to ALASHE & ORS V. OLORI ILU & ORS. (1965) NMLR (66). AGBAISI V. OBI (1998) 1 SCNJ 121 AT 28. SHITTA-BEY & ORS. V. LAGOS EXECUTIVE DEVELOPMENT BOARD & ORS. (1962) ALL WLR 372, OKUKUJE V. AKWIDO (2001) 10 WRN 1 (SC). It is the contention of the appellants’ counsel that suit no. E/175/76 which the respondents instituted as representatives of Umuota family cannot constitute res judicata in the present suit wherein the respondents are sued in their personal capacity. Counsel submitted that the Court below erred in law when it considered only the plans tendered by the parties and failed to look at the pleadings. He referred to EKONG V. UDO (2002) 16 NWLR (PT.792) 1 CA. He urged the Court to allow the appeal and set aside the judgment of the Court below.
In response, the respondents’ counsel submitted that for the parties in the two proceedings to be the same, they must not necessarily be named in the suit, it suffices if they are privies by blood or privies in law or privies in estate. He referred to COKER V. SANYAOLU (1976) 9-10 SC. 203. AKPAN V. UTIN (108) 7 NWLR (PT. 341) 764. ADELEKE V. AKANJI (1994) 4 NWLR (PT.341) 715. He further submitted that the parties, the issue and the subject matter in the previous suit and in the present suit are the same notwithstanding the inclusion or substitution of names of some of the parties. He referred to OJIAKO V. OGUEZE (1962) 1 ANLR 58. O. ONISANGO V. AKINKUNMI & ORS. (1955) WRLR 39. Sections 59 and 73 of the Evidence Act, 2011. Counsel further submitted that a judgment obtained in a representative capacity binds every member who falls within the group of persons represented. He referred to DANIEL TAYAR TRANS. V. BUSARI (2011) 1 KLR (PT.290) 271 AT 301. DAKOLO V. DAKOLO (2011) 6 KLR (PT.298) 1163 AT 1673. He urged the Court to dismiss the appeal.
RESOLUTION:
fresh action before any on the same case and on the same issue already pronounced upon by the Court in a previous action. For the plea to succeed, a party relying on it must establish the following facts – a. That the parties or their privies involved in boththe previous and the proceedings in which the plea is raised are the same. b. That the claim or issue in dispute in both proceedings are the same. c. That the Res or the subject matter of the litigation in the two cases is the same. d. That the decision relied upon to support the plea is valid, subsisting and final. e. That the Court that gave the previous decision relied upon to sustain the plea was a Court of competent jurisdiction. The burden is on the party who sets up the defence of estoppel per rem judicatam to establish the above pre-conditions conclusively Balogun v. Ode (2007) 4 NWLR (pt.1023) pg.1. Dagaci of Dere v. Dagaci of Ebwa (2006) 7 NWLR (pt.979) pg.382. Igwego v. Ezeugo (1992) 6 NWLR (pt.249) pg.501. Dokubo v. Omoni (1999) 8 NWLR (pt.616) pg.647. Oshodi v. Eyifunmi (2000) 7 SC (pt.11) pg. 145. Osunrinde v. Ajamogun (1992) 6 NWLR (pt.246) pg.156. The plea of Res judicata is used as a shield and not as a sword. As a successful plea constitutes a bar to any fresh action as between the parties or their privies. It is as a plea, a bar and as evidence it is conclusive. Once a plea of Res judicata has been established, the jurisdiction of the Courtwould be ousted. Where the plea of estoppel per rem judicatam is raised, the Court in determining whether the issues, the subject matter of the two cases and the parties are same is permitted to study the pleadings, the proceedings and the judgment in the previous proceedings. The Court may also examine the reasons for the judgment and other relevant facts to discern what was in issue in the previous case. It is therefore a question of fact whether the parties and their privies, the fact in issue and the subject matter of the claim are the same in both the previous and the present case.”
See also ZUBAIR V. KOLAWOLE (2019) LPELR-46928(SC) AT 39-43 (C-B). MAKUN & ORS. V. FUT MINNA & ORS. (2011) LPELR-15514 (SC) AT 26-27 (E-F). YANATY PETROCHEMICAL COY. V. EFCC(2017) 43473 (SC) AT 57-58 (C-C).
The Court below started the consideration of the issue of whether the appellants’ action is caught by the doctrine of estoppel per rem judicatam by looking at the pleadings of both parties. The Court at pages 276-277 of the record of appeal referred to paragraphs 2C and 2D of the appellants’ Further Amended Statement of Claim and paragraph 6of the Respondents’ Comprehensive Amended Statement of Defence. Those paragraphs of the pleadings have been reproduced above. The complaint of the appellants’ counsel that the Court below did not look at the pleadings but relied only on the plans tendered by the parties is grossly misconceived.
The Court having considered the pleadings and the evidence led held as follows at page 277 of the record of appeal:
“It is noteworthy that the parties as shown on the writ of summons and on pleading in this case are: NELSON UDE & OJI NWUDE V. JOSEPH AGU & FOUR OTHERS. In suit No. E/175/76 the parties as shown on exhibit I were Joseph Agu& 3 Others V. Louis Ude, Nelson Ude& 2 Others.
The name Nelson Ude is constantly representing Umuakwali Family in both suits while JospehAgu from Umudi Family featured in both suits. The parties in their pleadings as I reproduced above and exhibit I have said that they are the same in both suit and I believe them and I so hold.”
Suit No. E/175/76 was instituted by Joseph Agu, 1st respondent in this appeal and 3 others in a representative capacity for and on behalf of themembers of the families of Umuaguomam and Umueneano in Umudi, Enugwu Nachi. The defendants in that suit including the 1st appellant in this appeal were sued in their personal capacity. See page 2 of Exhibit 1 where the Court stated that:
“The plaintiffs who filed this action for and on behalf of members of the families of Umuaguomam and Umueneano in Umudi, Enugwu Nachi duly obtained the order of Court to prosecute their claim in a representative capacity. Both parties testified on their own behalf and called witnesses in support of their claim. The principal witness called by the plaintiffs was Joseph Agu, PW1 who is the first plaintiff on record in these proceedings. He confirmed that the plaintiffs come from and represent the Umuaguomam and Umueneano families of Umidi, Enugwu Nachi. The defendants, excepting the 3rd defendant, belong to Umakwali family in Nachi. The 3rd defendant comes from UmuenechiAliagu in Okpeze, Nachi. All four defendants are sued in this action in their personal capacity.”
There was no appeal against that finding, therefore the statement of the Court as to the capacity in which the parties in the previous suitsued and were sued is deemed to have been accepted as correct by both parties therein. On pages 14-15 of Exhibit 1, the Court made the following findings:
“I will now turn to the plaintiffs’ claim in respect of the area verged pink in Exhibit A. Both the plaintiffs and defendants with their respective witnesses tried to claim exclusive possession and ownership of the piece of land from beyond human memory. The plaintiffs claim original ownership of the said land by inheritance from their ancestors whilst the defendants rest their ownership of the land by dint of alleged partition. Both sides also called witnesses who allegedly worked on the land with permission of the parties. The defendants in particular made a lot of play on their allegation that the 1st defendant lived and died on the said land in dispute and that the said 1st defendant’s house and compound are well established on the land in dispute.
I have given a careful consideration to the claims and counter-claims of the parties over the land in dispute and must state that neither party has established to the satisfaction of the Court that it has been in an exclusiveoccupation or possession of the land in dispute for any long period as each party appears to claim. I do not in particular believe that the 1st defendant ever lived on the land verged pink on Exhibit A or Exhibit B. I am satisfied that the 1st defendant lived on the land of Isiagu people shown south of the land in dispute in Exhibit A. I find as a fact that the land verged pink on Exhibit A is part or parcel of Agu Nachi land, an extensive farm land, and that from time beyond human memory, members of the families of both the plaintiffs and the defendants farmed and cultivated upon portions of the said land without permission from any one. There is no satisfactory evidence of which of the parties that first took possession of any particular or identifiable portion of the said land in dispute and I make no findings on the point. I do not believe that the plaintiffs inherited the entire land in dispute from their ancestors or that the defendants secured the same by virtue of any partition. My finding is that this unoccupied expanse of land was scratched upon at various times and in various locations by members of the families of the plaintiffs and the defendantsby the way of farming but that none of the parties has established an original or exclusive ownership by inheritance, partition, or otherwise in respect of the said land.”
None of the parties in that case appealed against the judgment. The contention of the appellants’ counsel is that the judgment in that suit instituted by the respondents herein as plaintiffs in a representative capacity cannot operate as estoppel per rem judicatam to shield them from the present suit in which they are sued in their personal capacity. By a plethora of cases, the law is settled that the doctrine of estoppel per rem judicatam cannot shield a defendant in a new case where he is sued in a capacity different from the capacity in which he sued or was sued in the previous case. See OKUKUJE V. AKWIDO (2001)LPELR-2526(SC) AT 12-13 (D-B) where the Supreme Court per KATSINA-ALU, J.S.C
“It is now settled law that where an action is brought by a person in a representative capacity against another person personally and prosecuted to judgment, and later a further action is brought against him in representative capacity by the plaintiff in the original action, thejudgment is not the same, since in the earlier action the defendant is sued in his personal capacity and in the latter action as a representative of a class of persons. See Shitta-Bey &Ors v. The Chairman LEDB &Ors (supra); Ezeanya v. Okeke (supra). In the later case, this Court per Iguh, JSC held thus: “Where an action is brought against the defendant personally and prosecuted to judgment, and later a further action is brought against him in a representative capacity by the plaintiff in the original action, the judgment is not res judicata as the parties to the respective actions are not the same, since in one action the defendant is sued personally and in the other as representative of a class of persons.” Also in Udeze&Ors. v. Chidebe&Ors. (1990) 1 NWLR (Pt.125) 141…”
The respondents herein as plaintiffs instituted suit no. E/175/76 in a representative capacity. The named appellants herein as defendants were sued in their personal capacity. The appellants have instituted the present suit in a representative capacity against the respondents in their personal capacity. In law the parties are not the same. The judgment in suit no.E/175/76 cannot operate as res judicata against the appellants who have sued in a capacity different from the capacity in which they defended the previous suit. A judgment against a person in his personal capacity cannot be res judicata against that person in a representative capacity. See IBERO & ANOR. V.UME OHANA (1993) LPELR-1394(SC) AT 13-14 (G-B). ALIKOR & ORS. V.NSIRIM (2011) LPELR-4169 (CA) AT 14 (E-G). In AJAYI V. OLOWU (2010) LPELR-3674 (CA) AT 27-28 (F-D) this Court per Nwodo, JCA held that:
“It is imperative to note that there is a difference between raising issue of re-litigation on the basis of new views on different assumption of facts or new version and on the basis of new cause of action. In the current case the pleading shows clearly the action was commenced in a different capacity from the previous Suit. See Ishie v. Mowanso (2000) CLR 11 CA where this Court held that when an action is brought by a Plaintiff in a representative capacity against another person personally and the action is prosecuted whereby the Defendant succeeds, the Judgment in that action is res judicata to the extent that it determines the personal right of theDefendant in the subject but not res judicata in respect of any interest the Defendant may later represent in an action in a representative capacity.”
The finding of the Court in suit no.E/175/76 that “this unoccupied expanse of land was scratched upon at various times and in various locations by members of the families of the plaintiffs and the defendants by the way of farming but that none of the parties has established an original or exclusive ownership by inheritance, partition, or otherwise in respect of the said land” is not binding on the appellants’ family because they were sued in their personal capacity. Where a case is defended in a personal capacity, the judgment will not be binding on the family or the community. Judgment will be binding on the family or community, where a case is brought or defended in a representative capacity. See DIKE-OGU & ORS. V. AMADI & ORS. (2008) LPELR-8659 (CA) AT (A-C). SAPO & ANOR. V. SUNMONU (2010) LPELR-3015 (SC) AT 19 (B-E). The Court below did not take note of the capacity in which the respondents who raised the doctrine of estoppel per rem judicatam sued in suit no. E/175/76 andthe capacity in which they are being sued in the present case. The Court merely looked at the names of the parties. The omission to scrutinize the capacity of the parties in both suits led to the wrong conclusion that the parties in both suits are the same. In law, they are not.
The law is settled that all the pre-conditions for the application of the doctrine of estoppel per rem judicatam must co- exist. Where there is a failure to establish any of the pre-conditions, the plea of estoppel per rem judicatam must fail. See ACHIAKPA & ANOR. V. NDUKA & ORS. (2001) LPELR-64(SC) AT 22-23 (G-E), BALOGUN & ORS. V. ODE & ORS. (2007) LPELR-719 (SC) AT 21-22 (A-A). The burden is on the party who sets up the defence of estoppel per rem judicatam to establish the pre-conditions conclusively. In the instant case, the respondents failed to discharge the burden placed on them by the law to establish all the pre- conditions for the application of the doctrine of estoppel per rem judicatam. The Court below erred when it held that the doctrine of estoppel per rem judicatam applies in the instant case.
For the above reasons, this appeal succeeds. Thejudgment of the High Court of Enugu State delivered in suit no. HOR/681/96 on 28/3/2014 is hereby set aside. The case is hereby remitted to the Court below for trial de novo before another judge of the High Court of Enugu State.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother MISITURA OMODERE BOLAJI-YUSUFF, JCA and I totally endorse the reasoning and conclusion therein.
For the more detailed reasoning in the lead judgment, I equally find merit in this appeal and I hereby allow it.
I equally adopt the consequential orders in the lead judgment as mine.
ABUBAKAR SADIQ UMAR, J.C.A.: I have read before now, the judgment of my learned brother, MISITURA OMODERE BOLAJI-YUSUFF, JCA, just delivered.
I agree with the reasoning and the conclusion arrived at in the lead judgment; that the judgment of the High Court of Enugu State delivered in Suit No. HOR/681/96 on 28/3/2014 is set aside, and the case be remitted to the Court below for trial before another judge.
Appearances:
C. I. EnechionyiaFor Appellant(s)
Osita E. AguFor Respondent(s)