Adolphus Eshilonu & Ors. V. Christian Emereonyekwe & Ors. (2001)

LawGlobal-Hub Lead Judgment Report

OGEBE, J.C.A.

The appellants sued the respondents in Suit No. HOW/119/75 claiming title to pieces of land called “Ubugagu Ishi Nwadorogu”; N800 general damages for trespass to the said land and an injunction restraining the defendants or their agents from further trespass from the said land.

There were originally 7 defendants to the action. In the course of the trial of the suit before the Owerri High Court, the 1st, 3rd, 6th and 7th defendants died but were not substituted. Both sides fought the action in their representative capacities. There are only 3 surviving respondents in the present appeal.

Issues were joined between the parties and the appellants filed an amended statement of claim. Both sides gave evidence in support of their cases. The appellants’ case was based on traditional evidence that their ancestor Ehihie was the original founder of the land, which devolved on them.

The respondents called the disputed land Egbulu and testified that one Ezekom was the first person to own the land and they were descendants of Ezekom to whom the land devolved. Both sides tendered documents to show that there were several cases between them in respect of the disputed land. The appellants were not able to establish how their ancestor came about the land. The respondents tendered a judgment: Suit No. HOW/86/63 exhibit L between the parties in respect of the same land as a basis for their plea for res judicata. The trial Judge, Alinnor, J. (as he then was) painstakingly evaluated the evidence and dismissed the appellants’ claim.

Dissatisfied with that judgment the appellants have appealed to this court and filed a brief of argument in accordance with the rules of the court. In the appellants’ brief, learned counsel for them distilled 4 grounds of appeal. In the course of the argument of the appeal he abandoned issues (c) and (d) and the arguments thereon and they are hereby struck out. The remaining issues are as follows:

“(a) Whether the plea of res judicata was, in law, established by the respondents;

(b) Did the appellants not prove their root of title through traditional history on preponderance of evidence?”

The respondents ‘also filed a brief of argument and identified two issues for determination as follows:

“(a) Whether the lower court was wrong in holding that the defences of estoppel per rem judicatam and issue estoppel was established by the respondents so as to preclude the appellants from reopening the issues raised and determined by a court of competent jurisdiction in the 1963 case in relation to the said land in dispute by the same parties or their privies;

(b) Whether the trial court was wrong in holding that on the totality of the evidence, the appellants’ case at the trial, ought to have been dismissed.”

The learned counsel for the appellants submitted under issue (a) that there was evidence that before Suit No. HOW/86/63 was instituted by the respondents, Suit Nos. HOW/123/63 and HOW/124/63 were already pending between the present parties. He said that the learned trial Judge was wrong when he held that the appellants stood by and allowed the respondents in Suit No. HOW/86/63 to fight their case. He said that the defendants in Suit No. HOW/86/63 declined representative capacity and therefore the judgment against them was personal and could not constitute res judicata against the appellants. He however, conceded that PW1, Adolphus Eshilonu admitted that the land in dispute is the same as the subject matter of Suit No. HOW/86/63. He argued that the ingredients of res judicata were not present. He relied on the case of Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141.

In reply to this the learned counsel for the respondents submitted that in Suit No. HOW/86/63 the respondents sued 6 persons as representing Umuokocha kindred of the appellants. One of their representatives Anunobi Ofurum was a party to that suit. The case was heard by Egbuna, J., and the respondents won. The appellants were privy to this case and they did nothing. He said that PW1 admitted that there was litigation in respect of the same land in 1963 in which the respondents sued Umunguzo people and won. The learned counsel submitted that in a representative action parties in elude not only those named in the record of proceedings but also those represented and who are ready to attend and protect their interests at the proceedings. He relied on the case of Esiaka v. Obiasogwu (1/952) 14 WACA 178.

It is a well established principle of Law that to sustain a plea of res judicata the following conditions must be met: