Musa Iyaji v. Sule Eyigebe
Supreme Court of Nigeria
Judgement delivered on Friday, July 10, 1987
Citation: 30 NIPJD [SC. 1987] 232/1984
Suit No. SC.232/1984 Jurisdiction: Nigeria
BEFORE THEIR LORDSHIPS
ANTHONY NNAEMEZIE ANIAGOLU, J.S.C.
AUGUSTINE NNAMANI, J.S.C.
CHUKWUDIFU AKUNNE OPUTA, J.S.C. (Delivering the Lead Judgement)
KAYODE ESO J.S.C.
MUHAMMADU LAWAL UWAIS J.S.C.
Appearances: Professor M. I. Jegede (with him Babalola Ikotun) for the Appellant
Chief B. C. Oyibo for the Respondent
It is indeed a trite and well settled doctrine, that where no issue is raised in respect of a particular ground of appeal, the said ground of appeal is at large and deemed abandoned, thus it ought to be discountenanced and struck out. See Ndiwe v. Okocha (1992) 2 NWLR (Pt. 252) 129; Iyaji v. Eyigebe (1987) 3 NWLR (Pt. 61) 523, Ajibade v. Pedro (1992) 5 NWLR (Pt. 241) 257; Are v. Ipaye (1986) 3 NWLR (Pt. 29) 416; Anunlagun v. Oshoboja (supra) at 82 – 83 paragraphs H-A.
On the February 15, 1980 the High Court of Benue State ordered a retrial of Suit No. ID/52A/79 (Ex. D16) on the ground that there were “substantial irregularities” in the way the evidence of the P.W.3 (a very material witness) was given. The Benue State High Court further held that “the irregularities are material and led to a miscarriage of justice. This appeal is therefore allowed and the decision of the trial Court is set aside. We order a retrial before the Area Court Grade II Ajaka”.
The Area Court Grade II Ajaka complied with the above order and on the 25th day of August, 1980 started the retrial of the case between Sule Eyigebe of Ajaka as Plaintiff and Musa lyaji of Otobo as Defendant. This was in Civil Case No. 129/80. The claim before the Court in that Suit (No. 129/80) was:
“Seeking Court redress to refrain (sic restrain) the deft from his farming and harvesting economic trees at Ajaka”.
The Grade II Area Court heard evidence from the parties and their witnesses received 23 exhibits but refused to consider any and finally visited the land in dispute. At the locus in quo the Court made the following observation:
“Our observation at the locus in quo, we found that the land in dispute does not favour the Defendant, but we observed that the land in dispute is within the land of the Plaintiff, Ajaka-ate and within Ikare Anama”.
In summarizing the case of the parties the trial Grade II Area Court Ajaka at p.32 of the record of proceedings noted:
“Plaintiff further told the Court that he wishes to tender 10 copies of judgments which he and the Defendant had litigated upon in the Area Court Grade I Idah, Area Court grade II Ajaka, Upper Area Court Lokoja, and Ayangha and also the High Court of Justice Kwara State and Benue State respectively …
Plaintiff in reply to the cross-examination by the Defendant said he never won the Defendant in the 10 copies of documents he tendered.
At p.33 of the record lines 4 to 11 the Plaintiff in further answer in cross-examination admitted that:
” …. he knew that his late brother Sani Eyigebe and the late brother of the deft Adachaba Akubo had a dispute over a land called Ikare Anama and the present case Ajaka-ate which is now in dispute. Plaintiff also replied that he was not at home when his late brother and the deft’s late brother started their case and he did not know who won the case”.
Now the cases between “the late brother of the Plaintiff’ and “the late brother of the Defendant” was tendered as EXS. D1, D2, D3 and D4, I shall later on in this judgment consider the impact of these proceedings on the rights of the parties to this present dispute. Suffice it now to say that the Area Court Grade II Ajaka ultimately “entered judgment in favour of the Plaintiff Sule Eyigebe” and awarded ownership of “the disputed land Ajaka-Ate to the Plaintiff, Sule Eyigehe”.
Dissatisfied and aggrieved by the above decision the Defendant, Musa Iyaji of Otobo appealed to the High Court of Justice, Idah in Appeal No. ID/108A/80. The appeal proceedings in the Idah High Court are copied on pages 55 to 57 of the record of proceedings and repeated at pages 77 to 79.
The appellate High Court observed and rightly too:-
1. That there has been protracted litigation between the parties which expression legally includes the parties’ privies.
2. That the plaintiff Sule Eyigebe and Sani Eyigebe (who was the Defendant in EXS. 01, 02, and 03) are of the same parents.
3. That Idachaba Akubo (the Plaintiff in EXS. D1, D2 and D3) was “the senior brother” of the present Defendant Musa Iyaji.
4. That Idachaba Akubo was successful in the 1961 cases EXS. D1, D2 and D3.
5. That these earlier proceedings took place 10 years before 1971 when the present Plaintiff and Respondent in the High Court brought his case ID/52A/79 (EX. D16) which by order of Court was retried by the Area Court Grade II Ajaka as Suit No, 129/80.
6. That in EX. D16 the Court held that “the land is one and it is known and called Anama not Ajaka-Ate which name is ruled as concocted Application and is hereby declared nullity in connection with this dispute”.
In the light of the above observations the appellate Idah High Court then held that:
(i) The land, Ikare-Anama and Ajaka-Ate are one and the same land.
(ii) The trial Court – the Area Court Grade II, Idah, was in serious error when it rejected and failed to consider, for no valid reason. all the exhibits tendered before it especially EXS. D1, D2, D3 and D4.
(iii) These previous decisions are a bar to the present proceedings.
The appellate High Court then concluded:-
“From the foregoing we are satisfied that the trial Court did not properly evaluate the evidence before it. This appeal must therefore succeed. We allow the appeal and set aside the decision of the trial Court”.
The Defendant, Musa Iyaji of Otobo thus won on appeal.
The Plaintiff, Sule Eyigebe of Ajaka, aggrieved and dissatisfied then appealed to the Court of Appeal, Jos Division. Two main issues were raised and agitated by the grounds of appeal filed in the Court of Appeal namely:-
(i) Whether the plea of Res Judicata was available to Defendant/Respondent – in other words whether or not the proceedings in EXS. D1, D2, D3 and D4 constituted valid estoppel per rem judicatam?
(ii) Whether or not the Idah High Court as an appellate Court was right in reversing “the judgment of the trial Court based purely on facts!”
I have to observe here and emphasise that none of the 3 grounds of appeal at pp.91 to 93 of the record of proceedings raised the question of the boundaries of the land in dispute as an issue in the appeal before the Court below. I say this because an appellate Court should ordinarily confine itself to the grounds filed and canvassed before it and to issues that naturally arise out of those grounds. Any supposed Issue or Question For Determination which has no reference to any ground of appeal should not be considered by an appellate Court: see Western Steel Works v. Iron & Steel Workers (l987) 1 N.W.L.R. (Pt. 49) 284 at p. 304. An appellate Court should not gratuitously consider issues not raised by any ground of appeal. See Inua v. Ntah (1981) All N.L.R. 576: Ejowhomu v. Edok-Eter Ltd. (1986) 5 N.W.L.R. (Part 39) 1at p. 16, p.30 & pp. 34/35. The Court of Appeal after considering the issue of estoppel held that EX.D1 could not operate as an estoppel per rem judicatam against the Plaintiff/Appellant nor could it be held that the Appellant stood-by when EX.D1 was fought by the parties. Finally the Court of Appeal decided that “this is a proper case where the judgment of the Ajaka Area Court and that of the High Court for reasons already given by me should not be allowed to stand”. The Court below then ordered a retrial of the case (the second retrial) directing that:
“i. The Upper Area Court should pronounce with definitiveness on the precise area of the land in dispute.
ii. If, in its findings, the plaintiff’s claim to a part of the land in dispute only succeeds it should also state clearly the precise boundaries of that area of land.
iii It is desirable that the services of a licensed surveyor be engaged in this regard”.
The Plaintiff’s appeal was thereafter allowed and a retrial as above directed, ordered.
The Defendant, Musa Iyaji, dissatisfied with the appeal judgment of the Court of Appeal Jos Division, has now appealed against that decision to this Court. The difficulty, if any, in this appeal was created by the Court of Appeal itself and for itself. The grounds of appeal to the Court of Appeal (at pp.91-92 of the record) raised only two major issues namely, the attitude of an appellate Court towards issues of fact and evaluation of evidence by a trial Court and whether or not EXS. D1, D2, D3 and D4 constituted an estoppel, against the Plaintiff, per rem judicatam. Instead of dealing squarely with these two issues, the Court below went into an extensive search for evidence tending to show the precise boundaries of the land in dispute when the appellant did not make “boundaries” an issue.
Normally the first duty of any claimant of title to land is to show exactly and precisely a defined and identifiable area to which his claim relates, Akinala Baruwa v. Ogunshola (1938) 4 W.A.C.A. 159. If the claimant fails on this first hurdle no further questions need arise. His case will stand dismissed. Even if, as was observed by the Area Court Grade II Ajaka and apparently approved by the Court of Appeal that:-
“the land in dispute is within the land of plaintiff, Ajaka-ate, and within Ikare Anama” (the land of the Defendant).
It was still the duty of the plaintiff/claimant to show clearly the precise boundaries separating his holding which he calls Ajaka-ate and the Defendant’s undisputed land known as Ikare Anama. If he fails to do this (as was certainly the case in this appeal) there again he will have his case dismissed by the trial Court and if he appeals an appellate Court is also bound to dismiss his appeal for failure to establish precise boundaries especially on the side in dispute where the lands of the parties are contiguous. Udofia & anor. v. Afia & ors. (1940) 6 W.A.C.A. 216: Udekwe Amata v. Udogu Modekwe (1954) 14 W.A.C.A. 580: Vincent Okorie & Ors. v. Philip Udom & Ors. (1900) 5 F.S.C,162. Since the Court of Appeal gratuitously (without any ground of appeal to it complaining about boundaries) undertook to investigate the claimant’s boundaries and found them not established, it would have also now not gratuitously, but duty bound, dismissed his appeal on that same issue. An order for a retrial in such circumstances will be quite unfair to the Defendant who was Respondent in the Court below.
Another thing to note about the way the Court below handled the “native” Court’s judgments EX. D1, D2, and D3 is its failure to recognise that these judgments are not to be treated in the same way that any appellate Court would normally treat a judgment from the High Court where pleadings and plans are normally and usually ordered. When dealing with these “native” Court’s judgments the High Court is entitled to go beyond what appears on the face of the claim or Writ and ascertain from the entire evidence before the native Court, or Customary Court, or, as in this case, the Area Court, (including the inspection of the land in dispute) what was really the nature of the dispute and the land involved. Before the advent of English procedure and the filing of plans our “native” tribunals did adjudicate overland disputes and did settle them by going on the land itself with the contestants. This would, in most cases, be sufficient proof of the extent of the land claimed by the claimant and in dispute between the parties. To insist on more may defeat the dictates of justice. But in this case the High Court having found that the land in EX. D1, Ikare Anama and the land now in dispute, Ajaka-Ate, are one and the same piece of land which was inspected by the Court in EX. D1 and in this case by the Ajaka Court Grade II, there was no need to further dwell on precise boundaries. Boundaries then became a non-issue.
The Defendant/Appellant’s first ground of appeal was that:
“The Court of Appeal erred in law in ordering a retrial in the case when the Respondent had not sought such relief from the Court”.
Even though I hold that in the peculiar circumstances of this case an order for a retrial was wrong. it is certainly going too far to contend that an appellate Court cannot order a retrial unless same was specifically asked for. Every appellate Court has the right and in fact the duty and obligation to make any consequential order in the interest of justice and it is irrelevant that that particular order was not specifically asked for by either party to the appeal:- Prince Yahaya Adigun & ors. v. Attorney-General of Oyo State & ors. (1987) 1 N. W.L.R. (Pt.53) 678 at p. 710: see also Chief Ebenezer Awote & ors. v. S. K. Owodunni & Anor. (No.2) (1987) 2 N.W.L.R. (Part 57) 367. Also the general powers of the Court below conferred on it by Section 16 of the Court of Appeal Act No. 43 of 1976 gave the Court of Appeal the jurisdiction to order the case on appeal to it “to be re-heard by a Court of competent jurisdiction”. The result is that the Court below had the jurisdiction to order a re-hearing or retrial but exercised that jurisdiction wrongly given the peculiar circumstances of this case, Ground 1 attacking the order for retrial thus succeeds but for an entirely different reason.
Ground 2 alleging that the Plaintiff must succeed on the strength of his own case and must prove precise boundaries also succeeds,
In Ground 3 of the Grounds of Appeal, the Defendant/Appellant complained that:-
“3. The Court of Appeal misdirected itself by considering only EXS. D1, D3 and D16 in deciding the issue of res judicata and thus came to a wrong conclusion, which was to the effect that res judicata could not operate in this case, The said wrong conclusion occasioned a miscarriage of justice”,
“Particulars of Misdirection
(i) The Court of Appeal ought to have considered other exhibits, notably exhibits D2 and D4 besides exhibits D1, D3 and D16 before coming to a conclusion on the applicability of the doctrine of res judicata in this case.
Before considering the issue of res judicata, it may be relevant to look at the judgment of the appellate Idah High Court which gave rise to the judgment of the Court of Appeal. In the High Court, hearing the appeal from the Area Court Grade II Ajaka in Suit No. 129/80, the parties gave evidence and were cross-examined. The following facts emerged from the hearing afore-mentioned:-
1. The case between the parties had been long and protracted.
2. The Defendant claimed the land in dispute through his forefathers.
3. The Plaintiff admitted under cross-examination that there was a dispute between his late brother Sani Egebe (or Eyigebe) and the Defendant’s late brother, Idachaba Akubo – EX. D1 and that the name of the then disputed land was Ikare-Anama.
4. That Idachaba Akubo won the 1961 case, EX. D1.
5. There was evidence from the Defendant who was the Appellant in the Idah High Court that “it was in the year 1971 the plaintiff, Sule Eyigebe gave a new name to the disputed land.
6. The Plaintiff from 1971 called the disputed land Ajaka-Ate.
7. It was the very same land that was in dispute in 1961 between the late brother of the Plaintiff Sani and the late brother of the Defendant, Idachaba Akubo that the Plaintiff since 1971 has now been calling Ajaka-Ate.
How did the Idah High Court deal with the case before it on appeal?
I will answer the above question by quoting from the judgment of the High Court at p.56 lines 25-30 (or p.78 line 29 to 34).
“We find it convenient to deal first with the question whether or not Ajaka-Ate and Ikare-Anama are two separate lands. In EX. D16 that Court said in its judgment that:-
(iii) The land is one and it is known and called Anama Not Ajaka-Ate which name is ruled as concocted application (sic appellation) and is hereby declared a nullity in connection with this dispute.” At p.57 (or p.79) the Idah High Court found:-
“In the light of all, these, we have come to the conclusion that Ikare-Anama and Ajaka-Ate are one and the same land”.
On the issue of Res Judicata the Idah High Court held:-
“We are in agreement with the appellant (the Defendant) that the previous decisions are a bar to the present proceedings”.
On the general conduct of the case in the Area Court Grade II Ajaka, especially its rejection of the 23 exhibits tendered, the Idah High Court held:”
From the foregoing we are satisfied that the trial Court did not properly evaluate the evidence before it”.
The Idah High Court, to summarise, found:
(i) That the trial Area Court Grade II did not properly evaluate the evidence before it.
(ii) That the land in dispute is Ikare Anama; that the name Ajaka-Ate was concocted by the Plaintiff; but that in any event both names refer to one and the same land.
(iii) That the past decisions over this land in dispute are a bar to the present case of the Plaintiff – Suit No. 129/80.
The grounds of appeal at pp. 91-92 of the record understandably attacked the 3 findings above. Grounds 2 and 3 of the Grounds of Appeal challenged the right of the High Court Idah (exercising its appellate jurisdiction) to reject the trial Court’s assessment of evidence or its findings of fact.
How did the Court below deal with the above complaint? The Court below completely ignored grounds 2 and 3 of the Appellant’s Grounds of Appeal to it which then means that the findings of the High Court that lkare Anama and Ajaka-Ate are two names for one and the same land, that is, the same land that was in dispute between the late brother of the Plaintiff/Appellant, Sani Eyigebe and the late brother of the Defendant/Respondent, Idachaba Akubo.
This finding has not been specially reversed.
Now comes the final and all important question – Are the past decisions tendered in evidence in this case jointly or/and severally a bar to the present proceedings? The High Court used the expression “a bar” which is generic instead of res judicata which is specific.
These proceedings will operate as a bar if either of them constitutes an estoppel. Now according to Littleton S. 667:-
“S.667 – A man may be stopped or an estoppel may operate because a man’s own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth” (Italics mine).
Coke classified estoppel as follows:-
1. Estoppel by matter of record.
2. Estoppel in writing.
3. Estoppel in pais.
Modern classification however is, slightly broader viz:-
(i) Estoppel per rem judicatam.
(ii) Estoppel by deed.
(iii) Estoppel by representation.
(iv). What Lord Denning calls Promisory Estoppel.
The question now is which of these apply to the facts of this case now on appeal?
During the oral submissions of counsel in the Court below, the central issue was whether or not EXS. D1, D2 and D3 constituted estoppel per rem judicatam? Res Judicata cannot be considered in vacuo and without the surrounding background facts. These may be facts as agreed or conceded or else facts as found by the Court. Chief Oyibo who appeared for the Plaintiff/Appellant in the Court below is recorded at p. III as saying:-
“Ex. D1 is a suit between the brother of respondent and present Appellant, and the Respondent is a privy of his brother. So I say parties in EX. D1 same as in this case, cause of action same, subject matter same. D1 is a case between predecessors in title of the parties. Case terminated in favour of respondent’s predecessor in title. EX. D2 is a confirmation of D1. I also say D3 affirms D1, D2 and D3 are not the same as the subject matter in D16. The subject matter in DI, D2 and D3 is unknown. In D16 the subject matter is known as Ajakate and is the same subject matter as in this case” (Italics is mine).
In the above submission Chief Oyibo, learned counsel for the Plaintiff/Respondent in this Court conceded:-
(i) That a brother is a privy of his brother; that is to say that the present Appellant is a privy to his brother, Idaehaba Akubo who was Plaintiff in EX. D1.
(ii) That the present Respondent, Sule Eyigebe is a privy of his brother, Sani Eyigebe who was the Defendant in EX. D1. Therefore the parties or their privies are same in EX, D1 and the case now on appeal.
(iii) That the cause of action is same.
The only missing link to ground a plea of res judicata is now the subject matter. At first Chief Oyibo agreed it was the same but he later on changed and submitted “that the subject matter in EX. D1 is unknown”. Now the High Court Idah has supplied that missing link by its finding at p.79 lines 10 to 11
“that Ikare Anama and Ajaka-Ate are one and the same land”. Any meaningful consideration of res judicata in this appeal has to be based upon this subsisting finding of the Idah High Court that the identity of the land in EX. DI is the same as the land in dispute in this case. Ajala, learned counsel for the Defendant/Respondent in the Court below at p.114 submitted that according to the finding of the Idah High Court “Ajakate and Anama Ikare are one and the same land”. Mr. Ajala then rested his case on Res Judicata and on observations made at the locus (see p. 113 last 3 lines from the bottom).
The learned Justice, Agbaje, J.C.A. who wrote the lead judgment (in which Akanbi and Ogundare J.J.C.A. concurred) considered whether EX. D1 operated as res judicata in this case and at p. 128 held:-
“It appears to me clear that Exhibit D1 does (sic does not) operate as res judicata in this case because on the face of the record the parties in that case and the ones in the present case are not the same”.
This was the only objection the Court below had against EX. D1 operating as res judicata. Was the Court below right in this objection?
Let me now consider our decided cases and legal principles relating to estoppel per rem judicatam. In Ihenacho Nwaneri & Ors. v. Nnadikwe Oriuwa & Ors (1959) 4 F.S.C. 132 the Federal Supreme Court held that before the doctrine of estoppel per rem judicatam can operate, it must be shown that the parties, issues and subject-matter were the same in the previous case as those in the action in which the plea of res judicata is raised. This Court in Idowu Alase & Ors. v. Sunya Olori Ilu & Ors. (1965) N.M.L.R. 66 repeated what the Federal Supreme Court said in Ihenacho Nwaneri’s case supra viz same parties, same issue, same subject-matter.
The legal principle of res judicata as enunciated and contained in the famous opinion of the judges delivered by De Grey, C.J. in the equally infamous case of the Duches of Kingston 20 St Tr 537: 2 SmLC 13th Ed p. 644: (1775-1802) All. E.R. Rep 623 was that
“Judgments upon the same manner and between the same parties were as a plea a bar and as evidence conclusive”.
The rule is a limitation of estoppel per rem judicatam to parties and their privies and it is an affirmation of the maxim res inter alias acta alteri nocere non potest. Simply put the rule means that a final judgment already decided between the 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. Once the judgment is final it is conclusive proof in subsequent proceedings (other than an appeal or a retrial) between the same parties or their privies of the matter actually, decided.
In view of the above the learned Justices of the Court below were right in disregarding EX. D16 in their consideration of res judicata. Exhibit D16 was the very case sent back for a retrial. That retrial started as Ajaka Area Court Grade II Suit NO. 129/80 which has gone up to this Court on appeal. Now what about EX. D10. The only reason given by the Court below for rejecting it as grounding an estoppel per rem judicatam was that “on the face of the record the parties in the case (EX.D1) and the ones in the present case are not the same”. I am afraid that the above reason constitutes an undue and unnecessary limitation on the principle of res judicata. I take it that there is no dispute that the subject-matter in EX. D1 and the present case is the same – the Ikare Anama land otherwise also called the Ajaka-Ate land. The issues are the same namely the ownership of the land in dispute.
Now what of the parties which expression includes their privies? In EX. D1 Sani Eyigebe was the Defendant. This Sani Eyigebe was the brother of the full blood of Sule Eyigebe, the present Plaintiff in the trial Court and Respondent in this Court. The Plaintiff in EX. D1 was Idachaba Akubo. He was the senior brother of the present Defendant in the trial Court and Appellant in this Court. If one extends the doctrine of res judicata to parties and their privies (as it should rightly be extended) then the only remaining solitary issue in this appeal is – Who is a privy? Are the parties to this appeal privies of the parties in EX. D1? In Carl-Zeis-Stiftung v. Rayner & Keeler Ltd. (No.2) (1966) 2 All. E. R. 536 H. L. at p. 550, Lord Reid held that privies include all those who are privy to the parties, in blood or title or interest and estoppel per rem judicatam operates for, or against, not only parties but also those privies above mentioned. In this case there is no doubt that the parties to the present case and their late brothers who were parties to EX. D1 have the same kind of interest in the ownership of the land in dispute. Both parties in this case and in EX. D1 claim the land in dispute each through his fore-fathers and each set of claimants has the same fore-fathers. The present parties are, as it were, heirs to the parties in EX.D. There, therefore, exists that identity of interest which will make the judgment in EX.D1 conclusive for or against the parties in the present suit at least on the principle of qui Sentit Commodum Sentire debit et onus (He who derives the advantage ought also to bear the burden) for the one whose brother won in EX. D1 will surely enjoy the fruits of victory with his brother. The same will also apply to him whose brother lost.
The present parties were therefore privies in blood and interest to the parties to EX. D1.
Finally I will like to deal with the Appellant’s Issue For Determination No. III- “Whether the Court of Appeal was right in remitting the case back for a fresh trial despite the adverse findings by the trial Court?” I have already discussed at length the issue of accurate boundaries. The Appellant was a Defendant in the trial Court. If the Plaintiff/Respondent failed to prove his boundaries the proper order would be one for dismissal not a retrial. There ought to be an end to litigation. This case has gone on and on, bouncing up and down the Courts like a rubber hall. Interest reipublicae ut sit finis litium (Co. Litt 303). It will definitely be in the interest of all, that there is an end to this protracted case. The retrial order of the Court below cannot produce that result. It is not even in the interest of justice that a Plaintiff who has failed to prove his case should be given another chance to try again. That will be unjust to the Defendant.
Secondly with EX. D1 operating as res judicata the Plaintiff/Respondent is estopped from re-litigating the question of the ownership of the Ikare Anama land which he chooses to call Ajaka-Ate land. There cannot be a retrial of any of the issues decided in EXS. D1, D3 and D4. From that angle again the order for a retrial cannot stand.
Thirdly the Plaintiff/Respondent admitted at p. 10 lines 23 to 26 of the record of proceedings:-
“Yes my brother Sani Egebe, myself and 5 others trespassed into Ikare-Anama land for farming purposes that is why we were arrested and warned by refraining (sic restraining) us from that land .. ,”
The above is a reference to EX. D4 (at p. 160 of the record) where the Plaintiff, his brother Sani, and others were prosecuted “for criminal trespass under Section 311 of the Penal Code”. The Court in EX. D4 found that the land trespassed upon “belongs to Musa the complainant (the Defendant/Appellant). This same land is the land which the Jos High Court in Appeal MD/18A/1962 (EX. 03) at pp. 157 to 159b of the record adjudged to belong to the Defendant’s brother Idachaba Akubo. It is also this same land that the Idah High Court at p. 79 lines 10-11 found to be the land now in dispute by whatever name the parties call it – Ikare Anama or Ajaka-Ate. In view of all these, it is clearly obvious that the order for a retrial made by the Court below was, with the greatest respect, erroneous.
In the final result and for all the reasons given above, this appeal succeeds. I will therefore allow the appeal, set aside the judgment of the trial Court as well as that of the Court of Appeal. The consequential orders for a retrial made by the Court below is also set aside as well as the cost of N100.00 awarded to the Plaintiff who was the Appellant in the Court below. There shall instead be the following:-
1. An order allowing this appeal and affirming the appeal judgment of Idah High Court of Benue State.
2. Costs to the Defendant/Appellant in this Court which I assess at N300.00 and N250.00 in the Court below.
3. The Appellant is also entitled to his costs at the Idah High Court and the Area Court Grade II Ajaka which I assess at N200.00and N100.00 respectively.
ESO, J.S.C.: I have had a preview of the judgment which has just been delivered by my learned brother Oputa J.S.C. and I am in complete agreement. I will allow the appeal and abide by the orders made in the judgment of my learned brother Oputa J.S.C.
ANIAGOLU, J.S.C: I was opportuned to have a preview in draft of the judgment just delivered by my learned brother. Oputa, J.S.C., and I agree with his reasoning and conclusion.
The ingenuity of the Respondent in resurrecting this land case, under various names and guises, and his financial capability of shouldering the expenses of doggedly asserting a false claim, will not becloud the issue of Res Judicata which looms large in this appeal. This assertion of the Respondent is barred per rem judicatarn for all time, and also is caught by the equitable principle of Estoppel.
Accordingly, I would also allow this appeal, and hereby allow it. I would abide, and hereby abide, by the orders for costs as decreed in the said judgment of my brother, Oputa, J.S.C.
NNAMANI, J.S.C. I had a preview of the judgment just delivered by my learned brother, Oputa, J.S.C. and I entirely agree with his reasoning and conclusions.
This is a protracted case having arisen in the Courts since 1972. It has also moved up and down the hierarchy of the Courts in Benue State – from the Grade II Area Court Ajaka to the Upper Area Court Ayangba to High Court, Idah. When the High Court Idah upheld the appeal of the appellant herein, set aside the judgment of the Area Court Grade II Ajaka, the respondent herein appealed to the Court of Appeal, Jos Judicial Division which gave judgment on 12th July, 1984 in his favour and ordered a retrial.
The appellant then appealed to this Court.
The issues for determination in this appeal were listed at page 3 of the appellant’s brief as –
“(1) Whether in the circumstances of this case the Court of Appeal was right in remitting the case before it for a fresh trial when the Plaintiff/Appellant in that Court (now the respondent) had not sought such a relief.
(2)(i) Whether or not there was a finding of the trial Ajaka Grade II Area Court that the Plaintiff/Respondent did not establish precise boundaries of the land which he was claiming before the Court and if so,
(ii) Whether the Court of Appeal was right in remitting the case back for a fresh trial despite such adverse finding by the trial Court, thus giving the respondent another chance to prove his case.
(3) Whether on the facts disclosed on the records, the parties,the issue and the subject matter in Suit No. CV2/61 of 1961 (Idashaba Akinbo v Sam Eyigebe) were the same as those in Suit No.129/80 of 1980 Musa Iyaji v., Sule Eyigebe) or in the alternative whether the doctrine in Whycherley’s case applies, and. If the answer is in the affirmative in either case,
Whether the Court of Appeal was right in declining to uphold the judgment of the High Court in the said Suit No. 129/80 which was to the effect that the Respondent’s action was estoppel per rem judicatam and consequently that it ought to be dismissed”
Questions 2 and 3 were seriously canvassed in this Court by Professor Jegede, learned counsel to the Appellant. On the issue of boundaries of the land in dispite, the trial Court found, and this was affirmed by both the High Court and the Court of Appeal, that the respondent herein did not prove the boundaries of the land with any certainty. It is settled law that in a suit for declaration of title failure to prove the boundaries of the land in dispute is fatal See Baruwa v Ogunsola 4 W.A.C.A. 159; raimah Owuda vs Babalola Lawal (1984) 4 S.C. 145. On this alone the Court of Appeal ought to have dismissed the respondent’s case.
On the issue of estoppel per rem judicatam, it is to be observed that the principles applicable have been so well established as to be almost trite SeeIdowu Alase and Ors. v Olori Ilu and Ors. (1965) N.M.L.R. 66. It is agreed that the parties, subject matter, issues in the previous suit have to be the same as in the present suit for estoppel per rem judicatam to apply.
The Court of Appeal had held that estoppel did not apply. As Agbaje, J.C.A: observed at page 129, –
“It is clear from this passage that the plaintiff in that case was suing the defendant there personally because of the contractual relationship between them as regard the land in dispute. And going through exhibit D1 I cannot find anything to suggest that any other member of that defendant’s family participated in the proceedings”
It is significant though that learned counsel to the respondent herein, Chief B.C. Oyibo, conceded in his brief of argument that as regards the Suits Exhibits D1, D2 and D3 on which the plea of estoppel was based, the appellant and the respondent were successors in title to the parties in that case – infact they were privy in blood. He also agreed that predecessors in title to parties herein were the parties in Exhibits D1, D2 and D3. Chief Oyibo, however, contended that estoppel per rem judicatam was inapplicable because, as alleged by him, the subject matter in those suits was known as IKARE ANAMA while the land in the present suit is AJAKA-ATE – in other words the subject matter is different.
But this contention is untenable when one has recourse to the findings on this issue by the appellate High Court. At page 79 of the
Record the Court, after reviewing the findings of the lower court, posed the question”
how much of the disputed land is within the plaintiff’s land Ajaka-Ate.
Then the Court concluded –
“In the light of all these, we have come to the conclusion that Ikara-Anama and Ajaka-Ate are one and the same land”
The Court of Appeal did not set aside this finding.
In all these circumstances, it is my view that the Court of Appeal ought to have dismissed the respondent’s claim rather than, as they did, give him another bite at the cherry. For these reasons, and the more detailed reasons in my learned brother’s lead judgment, I too allow this appeal with costs assessed at N300 in favour of the appellant. I abide by all the other orders in the judgment of my learned brother, Oputa, J.S.C.
UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother Oputa, J.S.C. For the reasons contained in the said judgment, I too would allow this appeal and set-aside the decision of the Court of Appeal. I have nothing to add. I endorse the orders made in the judgment.