Aaron Awuzie & Ors. V. Ofurum Awujuo & Ors. (2001)
LawGlobal-Hub Lead Judgment Report
JAMES OGENYI OGEBE, J.C.A.
The respondents sued the appellants in Owerri High Court in a writ of summons as follows:
“1. A declaration that the plaintiffs are entitled to the customary right of occupancy to that piece or parcel of land known as and called “Okpe Nwedo” situate at Mgbolu Okwukwu within the Owerri Judicial Division with an annual value of N10.00 (ten naira).
N1, 000.00 (one thousand naira) damages for trespass.
- Perpetual injunction restraining the defendants, their agents, servants or workmen from committing further acts of trespass on the said land.”
Pleadings were exchanged and amended and the trial commenced on the 10th day of June, 1993. At the trial the first respondent testified as PW3 and nine other witnesses testified on behalf of the respondents. The first appellant testified as DW5 and seven other witnesses testified on behalf of the appellants.
The gist of the respondents’ claim as borne out by their pleadings and evidence was that the land in dispute which they called “Okpe Nwedo” and which is situate at Mgbolo Okwukwu descended on them from their forebearer through an unbroken line of inheritance. They have since then continued to farm on the land until 1987 when the appellants trespassed on to the land.
The appellants on their part based their claim of the land in dispute on traditional evidence by inheritance from their forefathers. They called the disputed land “Okwuedo”.
In the course of the trial before the lower court it became clear that in 1981 in Suit No. HOG/57/81 filed in the High Court of Oguta the present appellants had sued the present respondents in respect of the .same land claiming damages for trespass and injunction. That claim was dismissed on the 9th day o1 April, 1987 in a judgment tendered before the lower court as Exhibit A. The appellants appealed to this court in Appeal No. CA/PH/135/92 which appeals is yet to be determined. The trial judge in the present case on appeal gave judgment in favour of the respondents.
Dissatisfied with that judgment they have appealed to this court and filed a brief of argument in which they distilled three issues for determination as follows:
“1. Having regards to the pleadings and evidence led at the trial, whether the learned trial judge was right in holding that the identity of the land in dispute was not in issue.
- Can the appellants be held liable in trespass in respect of the land in dispute notwithstanding the content of Exhibit “A” in the proceedings at the Court below?
- Whether the pleadings and evidence of traditional history led by the respondents conclusively proved their ownership of the land in dispute by inheritance as to entitle them to a declaration of title in respect of same.”
The respondents also filed a brief of argument and distilled three issues for determination in the course of argument of this appeal the learned counsel for them abandoned issues (a) and (b) which are hereby struck out. The only remaining issue reads as follows:
“(c) If the appeal is competent then whether the respondents proved their case in the court below?”
The learned counsel for the appellants instead of arguing the issues for determination argued the grounds of appeal. This is clearly in contravention of our Rules of Court. See Order 6 of the Court of Appeal Rules. For example, to show that the learned counsel is arguing the grounds and not the issues, he ended each set of argument by urging the court to hold that the grounds of appeal succeed instead of asking the court to resolve the issues in his favour. However, I shall not strike out the brief because learned counsel stated the appropriate issues he has in mind to argue and I would take it that the arguments are in respect of those issues. See Kashidadi v. Noma (2000) 15 NWLR (Pt 692) 807.
On the first issue the main argument of the learned counsel for the appellants was that the identity of the disputed land was not established and that the parties joined issue on the identity of the land. The trial court was wrong; in holding that the respondents were absolved of the responsibility of proving the identity of the land.
In reply to this the learned counsel for the respondents submitted that both parties knew the disputed land and asserted that it was the same land that was disputed in the case No. HOG/57/81. He said that where a defendant is in no doubt as to the identity of the land which the plaintiff claims against him then the identity of the land is not in issue,. I agree with this submission. See the cases of Omoregie v. Idugiernwanya (1985) 2 NWLR (Pt 5) 41 and Ekpeyong v. Etim (1990) 3 NWLR (Pt. 140) 594.
I have read the record of appeal and I can see clearly from the pleadings and evidence that the parties were agreed as to the identity of the disputed land and that it was the earlier land disputed between them. See pages 30 lines 11-25; 73 lines 13-20; 93 lines 34-40 and 142 lines 25-35 of the records. I see no substance in this issue.
On the second issue it is submitted that the case of the respondents is caught by the principle of res judicata as the land in dispute in the present case had been disputed by the same parties with respect to the same issues before.
The principle of res judicata is simply a principle that you cannot re-litigate a cause or matter which has been settled in a judicial dispute between the same parties in respect of the same subject matter and on the same issues. See the case of Hi-flow Farm Ind. Nig Ltd v. University of Ibadan (1993)4 NWLR (pt 180.) 508.
If a party is relying on the defence of res judicata he must specifically plead it in the statement of defence. I have examined the appellants’ copious amended statement of defence contained in pages 70-82 of the record of appeal and I am unable to see anywhere where the defence of res judicata was raised. The appellants cannot raise that issue before this court without leave and no leave has been sought and obtained to raise such an issue. See Araka v. Ejeagwu (2000) 15 NWLR (Pt 692) 684. More seriously this is not the issue raised in the appellants’ brief as per the second issue quoted earlier in this judgment. It follows that no proper argument has been advanced in support of the second issue. I accordingly resolve that issue against the appellants”
On the third issue the learned counsel for the appellants submitted that the traditional history of the land presented by the respondents was full of contradictions and did not support the claim of title to the disputed land. He relied on the case of Adeleke v. Asani (1994) 1 NWLR (Pt 322) 136.
In reply to this issue the learned counsel for the respondents submitted that the respondents pleaded and proved acts of long and undisturbed possession dating back to time immemorial and the trial court believed this evidence. They also tendered the judgment in Suit No. HOG/57/81 in which the appellants lost in their claim against the respondents. The learned counsel argued that it is not for this court to substitute its own view for a finding of the trial court based on credibility of witnesses, and the trial court after a dispassionate appraisal of the evidence believed the witnesses of the respondents and found their claim proved against the appellants.
It is not the duty of an appellate court to disturb the findings of fact made by a trial court unless they are shown to be perverse or did not accord with the evidence led before that court. Such is not the case here. See the cine of Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511. I see no cause to disturb the finding of fact made by the trial court.
For all I have said in this judgment I find the appeal lacking in merit and I hereby dismiss it and affirm the decision of the trial court. The appellants shall pay costs of N5, 000.00 to the respondents.
Other Citations: (2001)LCN/0959(CA)