Anyim Mba & Ors. V. Agbafo Agu & Ors. (1999)

LAWGLOBAL HUB Lead Judgment Report

O. EJIWUNMI, J.S.C. 

The Appellants, as plaintiffs in the trial Court commenced this action against the Respondents, who were the Defendants. In that case the appellants at the Enugu High Court claimed against the respondents for:-

(i) A declaration to the Customary Right of Occupancy to a piece of land known as “Agu Ofia Amaeze” in the Awgu Local Government Area of Anambra State.

(ii) N50,000.00 being General damages for trespass; and

(iii) Perpetual Injunction restraining the defendants from committing further acts of trespass on the said piece of land.

After pleadings were filed and exchanged, the learned trial Judge, then heard the evidence for the parties to the action. For the appellants, five witnesses gave evidence in support of their claim. The respondents also called two witnesses. Some documents were also tendered in the course of the proceedings. At the conclusion of the trial, the learned trial Judge delivered a considered judgment at the conclusion of which he upheld the appellants’ claim.

The respondents who were dissatisfied with the judgment of the Court of Appeal have appealed to this Court. With the grounds of Appeal properly filed, the appellants filed and served the appellants’ brief. Upon being so served, the Respondents also filed their respondents’ brief.

But before I consider the issues set forth in the briefs so filed, I would set down, howbeit briefly, the rival claims of the parties to the disputed land.

The appellants brought their suit as the representatives of Amaeze Ohafia Oduma Community. They pleaded that their ancestors first settled on the land and that over the years, the land in dispute has descended in succession through their different ancestors until finally falling in the possession of the present appellants. The diverse acts of possession pleaded included farming on the land, installation of their juju shrine called “Ngwobe Ofia” on it, letting the land to customary tenants and granting rights to persons to fell timber therefrom. It was pleaded that on or about June, 1975, the respondents and their agents broke into the said land and committed thereon several acts of trespass. It was this that prompted the appellants to bring their action. The Respondents in their Amended Statement of Defence raised a plea of estoppel per rem judicatam. Their pleadings in this regard are in paragraph 6, 9 and 12. They read thus:-

“6. The defendants deny that the land in dispute is correctly represented in the plaintiffs’ survey plan No. MEC/16/80 of 10/1/80 and further states that it is correctly (sic) shown in the defendants plan FCO/D23/80. Furthermore, the streams that nearly encircle the land in dispute are Ugene, Obe steams and Esu and Awuna rives of which Obe stream forms the boundary between the plaintiffs land and the defendants’ land just as the Esu and Awuna rivers form the boundary between the defendants’ land and Uburu people’s land. Oba stream has from time immemorial formed the boundary between Awgu and Nkanu.

9. Further on paragraph 2 of the Statement of Claim the defendants plead the defence of res judicata because by the judgment of Mhurubu Native Law Court in suit No. 149/56 in Civil Suit No. 206 of 29th July. 1956 delivered on 24/12/56 the land in dispute was declared the bona fide property of Obodo Apuru Nkereti of which the defendants are members. The action was between the people of the plaintiffs and the people of the defendants.
10. The defendants deny paragraph 10 of the Statement of Claim in so far as it states that the land in dispute belongs to the plaintiffs. Furthermore, Obe stream separates the plaintiffs land from the land in dispute and the land they occupy has no direct connection with the land in dispute.”

It is upon the facts so pleaded and the evidence led by the parties that the learned trial Judge upheld the claims of the appellants. It must also be noted that the respondents by their pleadings raised the plea of estoppel per rem judicatam to the effect that there is a binding judgment of the Mburubu Native Court Exhibit C, in respect of the land in dispute and between the same parties, the learned trial Judge however decided that plea was not established by the respondents. This is despite the fact that the appellants did not file a reply to that averment of the respondents.

Although, the respondents had raised some issues on the Respondents’ brief, I will for the purposes of this appeal consider this appeal upon the basis of the issues raised in the appellant’s brief.

They are as follows:.

“(i) Whether the Court of Appeal was right in basing its decision in the appeal on an issue not raised in either the Notice and Grounds of Appeal or even in the appellants Brief

(ii) Whether the Court of Appeal was justified in its re-appraisal of the evidence on the crucial issue of the identity of the land in dispute, to arrive at a contrary finding of fact with that of the trial court.

(iii) Whether the Court below was right on the conclusions it eventually arrived at on the evidence”

Beginning with the first issue, the contention made for the appellants by their learned counsel J.H.C. Okolo. SAN in the appellants’ brief argued for the appellants that there was no ground of appeal or complaint regarding the wrongful rejection of evidence, namely, (Exh. C1), raised in the Notice thereof filed by the respondents before the Court below. It is further argued for the appellants that such a complaint should have been raised specifically as a ground of appeal on its own. Such a complaint, cannot, he submitted, be subsumed in the particulars supporting the ground. Therefore, it is contended for the appellants that as the respondents had not deemed it necessary to make that complaint a specific ground, the Court below was precluded from going into it, and worse still determining the appeal on that score. A matter according to the argument of the learned Senior Advocate that was neither raised in the briefs, or in respect of which neither party has been given reasonable opportunity to canvass, It is therefore submitted for the appellants, that the Court below should not have held that the complaint that Exhibit C1 was wrongly rejected in evidence is implicit in the ground of appeal that the plea of estoppd per rem judicatam was wrongly rejected by the trial court. Further, it is the submission of learned counsel that an appellate Court ordinarily confines itself to the grounds of appeal filed and canvassed before it. The following cases were cited in support of the several arguments of leading counsel – Iyayi v. Eyigbebe (1987) 3 NWLR (Pt.61) 523; Idika v. Erisi (1988) 2 NWLR (Pt.78) 563 at 580; Osimpebi v. Saibu (1982) 7 SC 104.

Also learned counsel for the appellants, submitted that as arguments on issues not covered by the ground of appeal ought to be ignored, the Court below should not have considered the complaint of the respondents in the Court below. The authorities cited for that submission are; Inuah v. Nta (1961) ANLR 576; Ejowhomu v. Edok-Eter Ltd. (1986) 5 NWLR (Pt.39) 1; Western Steel Works v. Iron Steel Workers (1987) 1 NWLR (Pt.49) 284; Akilu v. Fawehinmi (1989) 2 NWLR (Pt.102) 122 at 161.

The other angle to the Judgment against the judgment of the Court below on Exhibit C1, is that it was not established that Exhibit C1 was admitted at the Native Court trial. While it is admitted that reference was made in the judgment of the Native Court that Exhibit C1 was brought to its attention, yet it is the submission of learned counsel for the appellant that a close reading of the judgment of the Native Court will show that reliance was not placed on it to determine the suit between the parties. He therefore concluded his argument on this issue that the Court below was wholly wrong to have held that the respondents who were the appellants in that Court discharged the burden of establishing the plea of estoppel per rem judicatam.

In the respondents brief, learned counsel for the respondents in response to the arguments of the appellants on issue 7 agreed primarily with the contention made for the appellants that Exhibit C1 was not made a distinct ground of appeal in their Notice of Appeal to the Court below. But, he then argued that the complaint was made very clearly in the particulars given in support of one of their grounds of appeal. It is next argued for the appellant that the Court below acted properly within its powers under section 16 of the Court of Appeal Act of 1976 to re-evaluate as if it were a re-hearing the evidence on the printed record. Furthermore, as is the continuation of learned counsel for the respondents that the Court below was right in its decision that the plea of estoppel per rem judicatam was established by the respondents. The following authorities in support of his submission were referred to:- Woluchem v. Gudi (1981) 5 SC 291 at 326: Nabhan v. Nabhan (1967) NMLR 192; Jadesimi v. Okotie-Eboh & ors. (1986) 1 NWLR (Pt.16) 264: Silas Okoye Okonkwo & Ors. v. Chief Agogbua Kpajie & Ors. (1991) 2 NWLR (Pt.226) 633 at 656.

On the contention of the learned Senior Advocate, for the appellants, that the Mburubu Native Court did not in its judgment advert to, or found its judgment on Exhibit C1, the learned counsel for the respondents contends to the contrary.

It is his submission that the Mburubu Native Court not only saw Exhibit C1, but tied its judgment to the said plan. He further argued that though it is not stated that Exhibit was admitted in evidence by the Native Court, that alone cannot invalidate the decision of the Native Court in support of that contention, he referred to the case of Ekpa v. Utong (1991) 6 NWLR (Pt. 197) 258 at 281 for the view long held in a long line of cases that technical rules of procedure which are meant for regular courts do not apply to Native or Customary Courts.

From the arguments of learned counsel for the parties concerning whether the wrongful rejection of Exhibit C1 by the trial court was raised as a specific issue before the Court below, it is necessary to examine the grounds of appeal filed by the respondents in the Court below to ascertain the correctness or not, of the contention of the appellant.

In this regard, at page 122 of the printed record, there is found the ground of appeal to the Court below and headed “Further Grounds of Appeal.” The relevant portion of that ground of appeal reads thus:-

“(7) The learned trial judge erred in law by failing to uphold the plea of res judicata set up by the defendants.

Particulars of Error-in-Law

The learned trial judge found that the parties (and/or their privies) and issues in the High Court case were the same as in the Mburubu Native Court case (Exhibit C) but held that since the plan (Exhibit C1) of the Native Court was not counter-signed by the Director of Survey, he had to expunge it from his record, and so he held that the defendants did not prove that the land in the Mburubu Native Court case was same land as in the High Court case …. ”

The first complaint made on behalf of the appellants by their learned counsel is that the above ground of appeal was not sufficient for the Court of Appeal to examine whether Exhibit C1 was properly rejected by the learned trial judge. In this connection, we were referred to the portion of the judgment of the Court below, where Oguntade J.C.A. at page 194 line 32, page 195 lines 1-12 observed thus:-

“The defendants in this appeal have not specifically appealed against the wrongful exclusion from evidence of their plan Exhibit C. But it is also clear that this is a special case in the sense that documents that constitute one judgment have been improperly split in two. One part is in evidence while the other is not. It seems that the complaint that Exhibit C1 was wrongly rejected is implicit in the ground of appeal that the plea of estoppel per rem judicatam was wrongly rejected. This is because the plea is founded on the judgment of Mhurubu Native Court. And that judgment consists of a combination or both Exhibit C and C1.”

It is my respectful view that the criticism of observation of Oguntade, JCA by learned counsel for the appellants is wrong. The observation made by the learned Justice of the Court of Appeal was, if anything, far too considerate in the observation made that the rejection, wrongly of Exhibit C1 is implicit in the ground of appeal. This is because the position of the law is that the particulars of a ground of appeal form part of the ground of appeal. In other words, as the particulars of a ground of appeal are part and parcel of the ground of appeal, there can be no question that the complaint given in the particulars of the ground of appeal are to be regarded as a mere addendum, they are not. Particulars of a ground of appeal are there to support and explain further the complaint raised in the ground of appeal. It is not therefore right for learned counsel for the appellant, J.H.C. Okolo, SAN to argue against the observation of the learned Justice of the Court of Appeal on the ground of appeal filed, and referred to above, as if the particulars given to the ground of appeal are separate from and distinct from the ground of appeal. It is not, as I have said above. I therefore find no merit in this aspect of the argument on that issue proffered for the appellants.

Next, it is argued for the appellants that the Court below was wrong to have interfered with the judgment of the trial Court. I think it must be understood that for this argument to succeed, it must be shown that the Court below exceeded the powers given to it by virtue of the provisions of S.16 of the Court of Appeal Act 1976. Its provisions read thus:-

“16. The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the court below is authorised to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in the case of an appeal from the court below in the court’s appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction.”

It is apt to refer to the observation made in respect of the provisions of s.16 of the Court of Appeal Act in Silas Okoye Okonkwo & Ors v. Chief Agogbuo Kpajie & Ors. (1992) 2 NWLR (Pt.226) p.633 by Nnaemeka-Agu, JSC at page 656. It reads:-

“A Court of Justice such as the Court of Appeal which is vested with the type of wide powers as have been vested in the Court of Appeal under section 16 of Court of Appeal Act of 1976 would have failed in its duty to do justice to parties before it if it had closed its eyes to the pleadings and evidence before it, and thereby reached a different verdict, simply because they were not specifically raised by counsel.”

In the instant case, and as I have earlier said in this judgment, the question as to whether Exhibit C1 was wrongly rejected by the trial Court was properly raised before the Court below. It was therefore right and proper for that Court to examine and re-evaluate the evidence on the printed record to determine, whether or not, Exhibit C1 was properly rejected by the trial Court. The Court below upon examining the primed record found that the trial Court properly considered the plea of estoppel per rem judicatam raised by the respondents as defendants before the trial court. It was also clear that the trial Court in its consideration of the plea of estoppel was properly considered by the trial Court. The learned trial Judge at page 95 lines 1-19 of his judgment said thus:-

“In other words, the plaintiffs in Exhibit C were the representatives of the defendants in this suit. The defendants in Exhibit C were sued as representatives of Amaeze Ohafia Oduma. The plaintiffs in the present suit sued as representatives of Amaeze Ohafia Oduma. In fact, the 2nd defendant in Exhibit C is the 1st plaintiff in the present suit. I am satisfied that the parties or their privies are the same as the parties or their privies in the native Court suit Exhibit C.

The issue in Exhibit C was title to land and a declaration as to the boundary between the two communities. In the case before me the issue is title to land (or Customary right of Occupancy) which from the facts of the case depends on a determination of the boundary between the same Communities. I am of the view that the issue that was determined in Exhibit C is substantially the issue for determination in this suit.”

Thus, the learned trial Judge held that the parties and the issue are the same in Exhibit C as the suit which led to this appeal that was then before him. But with regard to Exhibit C in the trial before the Mburutu Native Court, the learned trial Judge said thus:-

“I have before me Exhibit C1 which is a plan referred to in the judgment of the Native Court. It is not clear whether the plan was tendered in the Native Court but it was referred to in the judgment.”

And later at page 96 of the printed record, the learned trial judge rejected Exhibit C1 for the following reasons:-

“The Survey Act as contained in Vol. IV. Cap. 194 Laws of the Federation of Nigeria 1958 is therefore the relevant law at the time Exhibit C1 was used in the Mburubu Native Court. It was not countersigned by the Director of Survey as required by Section 23(i)(b)(ii) of the Act which is in pari materia with Section 3 of the Survey Law of Eastern Nigeria 1963. I therefore hold that Exhibit C1 is not admissible in evidence and is hereby expunged from the proceeding.”

It is evident from the above passage and the argument preceding it that the learned trial judge treated the matter concerning Exhibit C1 as if he was sitting as an appellate court over the judgment of the Native Court.

The Court below, per Oguntade, JCA, made the following observation on this point, at page 194 of the printed record.

It reads:-

“When the judgment of a court is tendered in support of a plea of estoppel per rem judicatam, the court before which it is tendered would need to examine the judgment with a view to discovering the parties, the issues and the subject matter of the dispute in the previous case. It would need to satisfy itself that the judgment is regular on the face of it i.e. that the pervious dispute was decided by a court with jurisdiction to determine that class of dispute and that the judgment of that court is final as between the parties before it. It is not part of the duties of the court before which a judgment is tendered in support of a plea of estoppel per rem judicatam to see whether evidence was wrongly or rightly received by the court that previously adjudicated. It cannot consider whether technical errors were made in the course of the previous proceedings. That is a matter for a court to which the judgments of the court that previously adjudicated are appeallable. If the parties concerned choose not to appeal against such errors then the matter must lie there. Were it otherwise, no judgment of a court would enjoy respect of inviolability. Litigation will become so much uncertain and the doctrine of estoppel rem judicatam will be destroyed. Human experience has shown that a man usually gets wiser after a misfortune. To allow a man to use his newly acquired wisdom to unsettle solemn judgments previously made is to derogate from the time honoured concept founded on good sense and logic that there must be an end to litigation (“interest reipublicae ea sit finis litum).”

I agree entirely with that analysis of the position of a trial court when faced with a matter such as has arisen in the instant case. It is manifest that the learned trial judge fell into error not only for assuming an appellate role upon a matter which was not on appeal before him, but also because he failed to advert to the long established principle that our Native and/or Customary Courts are not bound by the technical rules of procedure which govern trials in the High Courts and other Courts of Record. See Ekpa v. Utong (1991) 6 NWLR (Pt.197) 258 at 281. It seems to me that if the learned trial judge had adverted to this principle, his decision would have been different. It follows that the Court below was right to have interfered with the judgment of trial Court. In this regard it must be remembered that an appellate Court is under a duty to interfere and reverse the decision of a trial Court which was arrived at upon a premise that is not right in law or otherwise perverse. See Lion Building v. Shodipe (1976) 12 SC 135: Macaulay v. Tukuru 1 NLR 35: Adegoke v. Adi Adibi (1992) 5 NWLR (Pt.242) 410. Having regard to the authorities above and many others not referred to in this judgment, the Court below was undoubtedly right to have treated the appeal by way of a re-hearing. As I said at the beginning of this judgment that the appellants have the burden of showing that the Court below was wrong in its evaluation of the evidence on the printed record and that the reversal of the judgment of the trial court was not right in the circumstances. However, it is my respectful view that the appellants have failed to discharge that burden.

As I agree fully with the judgment of the Court below that the respondents fully established their plea of estoppel per rem judicatam against the appellants based on the judgment of the Mburubu native Court. Exhibit C & C1, there is nothing further to consider in this appeal. In the result, this appeal is dismissed in its entirety, and I award costs in the sum of N10,000.00 in favour of the respondents.

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SC.162/1993