Edem & Ors v. Ishie & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

TIJJANI ABUBAKAR, J.S.C. (Delivering the Lead Judgment)

This appeal is against the judgment of the Court of Appeal Calabar Division delivered on the 28th day of October 2009, wherein the lower Court gave judgment in favour of the Respondents and dismissed the Appellant’s appeal.

The Appellants became nettled by the decision of the lower Court and therefore appealed to this Court via Notice of appeal filed on the 18th day of October 2010. Appellants’ notice of appeal was amended on the 7th day of October 2021.

​The facts of the case from the records of appeal are that the Plaintiffs at the trial Court, now Appellants sued in a representative capacity and obtained judgment against the Defendants now Respondents in this appeal, in suit No. C/88/76 at the High Court of Justice Cross River State claiming, declaration of title to land and damage for purported acts of trespass to the land in dispute and forfeiture.

The trial Court granted an order of forfeiture over the land described in the survey Plan No. DDACO/SE/45/LD tendered as exhibit A, the trial Court also granted a declaration that the Plaintiffs are entitled to the Certificate of Occupancy over the land and nullified the deed of conveyance, sale or lease made by all the defendants or any one of them except the 6th in respect of the Plaintiffs’ land in exhibit A and all statutory right or certificate of occupancy derived therefrom with the consent of the Plaintiffs since 1976.

The Defendants became dissatisfied with the judgment and therefore lodged an appeal at the Court of Appeal Calabar Division in appeal No. CA/E/210/96. The Court of appeal allowed the appeal and set aside the decision of the trial High Court and held that the earlier decisions of the then Supreme Court delivered over the disputed land on the 16th day of October, 1918 and 16th day of June, 1925 which were tendered as exhibits R and S respectively sustained the Respondents plea of res judicata.

​The Plaintiffs, as Appellants further appealed to this Court in appeal No. SC/92/2002, and attempted to amend their Notice of Appeal to enable them raise a fresh issue challenging the existence of exhibits R & S, alleging that the exhibits were forged. The application to raise and argue fresh issue on appeal was refused.

The appeal proceeded to hearing but before this Court delivered its judgment on 17/6/2005 dismissing the appeal and affirming the decision of the Court of appeal, the plaintiffs commenced suit No. HC/96/2003 on 10/3/2003 and the endorsement on the writ of summons reproduced in paragraph 22 of the statement of claim reads as follows:

I. An order declaring the purported judgment of justice A. Webber on 16/6/1925 as a forgery, inexistent, null and void and of no effect whatsoever.
II. An order of Court stating that the defendants herein obtained the judgment in CA/E/210/96 by fraud.
III. An order for police investigation and prosecution of the perpetrators and beneficiaries of this fraud/irregularity.”

​A memorandum of appearance was filed on behalf of the defendants on 27/3/2003. On the 6th day of November, 20031 Learned Senior Counsel Chief A.O Mogboh, SAN filed a notice of Preliminary Objection to the suit on the ground that the Court lacks jurisdiction to hear and determine the matter because the judgment of Justice A. Webber delivered on the 16th day of June, 1925 is the subject matter of suit No. C/88/75, CA/210/96 and SC/92/2002 pending at the Supreme Court and was pending before the filling of the instant suit HC/96/2003 at the Calabar High Court.

Arguments on the preliminary objection were not taken until after this Court delivered judgment. On the 3rd day of August, 2007 the Court sustained the preliminary objection and dismissed the suit. It held that the Court of appeal had already accepted exhibits R and S as genuine. The plaintiffs became dissatisfied and therefore appealed against the ruling dismissing the suit.

The lower Court delivered judgment on the 28th day of October 2009 dismissing the appeal. The Appellants further appealed to this Court via notice of appeal filed on the 7th October 2021. The amended Notice of appeal was deemed as properly filed and served on the 4th day of April 2022. Learned Senior Counsel Solomon E. Umoh, SAN, settled the Appellants’ brief of argument. It was filed on the 7th day of October 2021. Counsel nominated two issues for determination; the issues are as follows;

1. “Whether the Court below, with respect, appreciated the case of the appellants, which it was called upon to decide when it sustained the respondents’ obligation that the Doctrine of res judicata was applicable to this matter. (Grounds 1, 3 and 4)
2. Whether the appellants just like every other litigant can challenge a Court judgment obtained by fraud and/or upon reliance on a non-existing document/judgment. (Distilled from grounds 2 and 5)”

On the other hand, learned Counsel for the Respondents Edidiong O. Usungurua Esq filed Respondents’ brief on the 27th October 2021, the said brief was deemed as properly filed and served on the 4th April 2022. Counsel nominated sole issue for determination; the sole issue is also reproduced as follows:

“Whether the Court below was not right when their lordships sustained the plea of res judicata raised by the respondents and in the process upheld the finality of the decision of this Honourable Court? (Distilled from grounds 1, 2 and 3 of the Notice of Appeal)”