Benedict Udeorah & Ors V.okwundu Nwakonobi & Ors (2002)

LawGlobal-Hub Lead Judgment Report

UBAEZONU, J.C.A.

The plaintiffs who are the respondents in this appeal sued the defendants who are the appellants to the High Court of Onitsha Judicial Division of Anambra State claiming as follows in their further amended statement of claim:

(vii) DECLARATION of title to the parcel of land known as and called “NNO-OMO” situate at EZI-UMUNYA village, Umunya, and verged PINK in the plan No.MEC/303/78.

(viii) N10,000.00 general damages for trespass.

(ix) AN ORDER of injunction restraining the defendants, their servants and agents from entering or remaining on “NNO-OMO” land verged PINK in the plan No. MEC/303/78 or doing anything thereon or in any manner whatsoever interferring with the plaintiffs’ rights of ownership and possession over the said land.

As can be seen from the parties on record, the plaintiffs sued in a representative capacity. The defendants were also sued in a representative capacity. In a judgment delivered by Amaizu J. (as he then was) he granted the plaintiffs/respondents the reliefs they claimed. The suit concerned a piece of land, which, according to the respondents, is situate at their Ezi Umunya village in Umunya and called “Nno-Omo” land. The court granted them the declaration of customary right of occupancy, N1000 damages for trespass, injunction and costs.

Against that judgment, the defendants/appellants have appealed to this court. Briefs have been exchanged by the parties. With the leave of this court, supplementary briefs were also filed and exchanged.

In their brief the appellants formulated 6 issues or questions for determination viz:-

“(i) Whether the court below was correct in law in refusing to accord any probative value to Exhibit 14.

(ii)  Whether the court below erred in law in failing to recognise and give effect to Exhibit 13 as proof of defendants/appellants’ title to the land in dispute and their light to possession thereof.

(iii) Whether the court below erred in failing to take any account of the evidence of DW2 (OGUNO ISIUZO) and of Exhibits 16.17 and 18 in respect of or relating to the ownership of adjoining lands by the defendants/appellants.

(iv) Whether the court below erred in failing to treat the composite plan Exhibit 8 as a reliable survey plan.

(v) Whether the court below was correct in admitting Exhibit 3 in evidence and in making use of the answers given in cross-examination of witnesses on the said Exhibit 3.

(vi) Whether the judgment of the court below was against the weight of evidence.”

Arguing his 1st issue Chief Williams, learned Senior Counsel for the appellants submitted that the failure of the learned trial Judge of the lower court to accord any probative value to Exhibit 14 because, according to him, it cannot sustain a plea (If res judicata, caused a miscarriage of justice. Collateral attack on a competent judgment that is not appealed against is not permissible. Refers Saif Ali v. Sydney Mitchell & Co. (1980) A.C. 198 at 222; Hunter v. Chief Constable of the West Midland Police (1982) A.C. at p. 542.  Learned senior counsel concludes issue No.1 by submitting that the lower court erred in law by failing to give any probative value to Exhibit 14.

On issue No.2, it is submitted that the learned trial Judge again failed to give any probative value to Exh. 13. The said exhibit was a 1966 judgment of the Onitsha High Court in Suit No. 0/63/61 which the defendants/appellants won against a section of Umunya people of plaintiffs/respondents i.e. Akato Ifite Umunya people. The same Nno-Omo land was in dispute. In Exhibit 13, one Dennis Nwabude of plaintiffs/respondents testified for the plaintiffs in that suit. Counsel refers to and relies on the acts of possession of the appellants as evidenced in Exh. 13 and describes them as being more cogent and more recent than the oral claim of plaintiffs/respondents.

It is submitted that the failure to recognize and give effect to Exh. 13 as proof of title or evidence of recent acts of possession on the land in dispute occassioned a serious miscarriage of justice.

Issue No.3 deals with ownership of lands adjoining the land in dispute and of the failure of the lower court to take account of Exhibits 16, 17, and 18. It is submitted that proof of possession of connected or adjacent lands may be proof of the ownership of the land in dispute – See Section 46 of the Evidence Act. By failing to take account or evaluate the evidence of ownership of adjoining land the learned trial Judge fell into a serious error.

On issue No. IV the appellants deal with Exh. 8 – a composite plan compiled by a licensed surveyor employed by the appellants to relate the land which formed the subject matter of Exhibit 13 in Suit 0/63/61 with the land in present dispute. Learned counsel submits that the learned trial Judge appears to have treated Exhibit 8 with scant regard. He criticised Exhibit 8 on grounds which were never put to the licensed surveyor when he gave evidence and failed to put Exhibit 8 into the use he ought to have put it. As regards issue No. V the appellants complain of the admissibility of Exhibit 3 in evidence and in making use of the answers elicited in cross-examination of the said Exhibit. It is contended that Exhibit 3 having been amended, it is no longer material to the proceedings. The evidence thus elicited under cross-examination on Exhibit 3 is irrelevant and ought not to have been used by the lower court in arriving at its decision since the document no longer forms part of the proceeding of the court. The 6th and last issue in the brief deals with the weight of evidence. It is submitted that there are judgments of courts of competent jurisdiction which establish the ownership and possession of the appellants to the land in dispute. Brushing aside or ignoring the effect of such decisions, the judgment of the lower court in this case has occasioned a serious miscarriage of justice.

The appellants also filed a supplementary brief with leave of this court. In the supplementary brief, the appellants formulated two additional issues viz:

(vii) Whether the lower court was right in failing to hold that the defence of estoppel by standing-by and estoppels by conduct against the plaintiffs/respondents was made out by the defendants/appellants herein;

(viii) Whether the Lower Court was right in failing to hold that the defendants/appellants have made out a case of their entitlement to the land in dispute by adducing credible evidence of long acts of possession.

Arguing the first issue on the supplementary brief which is now the 7th issue in the appellants’ appeal, learned senior counsel for the appellants submits that the defence of estoppel by standing-by and estoppel by conduct was made out by the appellants and that the failure of the lower court to give effect to it caused a miscarriage of  justice. It is submitted that in Suit 0/63/61 the Akanato Hite Umunya people sued the people of appellants – the Osile Ogbunike people. The case of Akanato Umunya people was dismissed. Exhibits 11, 12 and 13 are relevant. The appellants in paragraphs 14 and 15 of their further amended statement of defence relied on this judgment as constituting a defence of estoppel by conduct and estoppel by standing-by. In no where did the respondents meet the averment. It is submitted that the learned trial Judge misconceived the defence of the appellants on this issue as he examined the defence of the appellants only on the basis of res judicata and no more. The learned trial Judge therefore failed to consider the crucial issue as to whether the respondents had knowledge of suit 0/63/61. The knowledge may be actual or imputed – see Anyaoke v. Adi (1986) 3 NWLR (Pt.31) 731 S.C.; Okpala v. Ibeme (1989) 2 NWLR (Pt.102) 208; Balogun v. Agboola (1974) 10 S.C. 111 at 119; See also Bola v. Bankole (1986) 3 NWLR (pt.27) 141 at 149. Ibrahim v. Dr. Mohammed (1996) 3 NWLR (Pt.437) 453 at 456.

It is submitted that by Dennis Nwubude of Ezi Umunya testifying for the plaintiffs in suit 0/63/61 the respondents cannot deny the knowledge that the said suit was going on in court. The evidence of P.W.5 Alfred Nwaizu of Ezi Umunya shows that the respondents were aware of the pendency of suit 0/63/61. D.W.2 Oguno Iziuzo named people of Ezi Umunya of respondents who were attending court with Akanato Umunya people during the hearing of Suit No. 0/63/61. His evidence was not challenged. It is therefore submitted that there was abundant evidence which shows that the respondents had full knowledge of the pendency of suit 0/63/61 but did nothing.

On issue VIII i.e. the 2nd issue in the supplementary brief, learned senior counsel submits that the appellants rely on a number of documentary evidence to prove their several acts of possession on the land in dispute while the respondents rely on oral evidence. The learned trial Judge relied on the respondents’ oral evidence to give them judgment and paid scant attention to the documentary evidence of the appellants. He regarded the documentary evidence as irrelevant because, according to him, the respondents were not parties to the suits or to the events reflected in the documents. Counsel refers to Okafor v. Obiwo (1978) 9 and 10 S.C. 115; Chief Akpan v. Chief Orong (1996) 10 NWLR (Pt.476) 108, (1996) 12 SCNJ 213; Ogunbiyi v. Adewunmi (1988) 5 NWLR (Pt.93) 215. Thus, counsel submits that suit 0/63/61 successfully defended by the appellants constitutes an act of possession by the appellants to the land in dispute. Counsel also refers to case No. 11/26 – Chief Obuesili of Ogbunike v. Nwosu of Ogbunike – Exhibit 10 and also charge No. MAN/303c/80; Commissioner of Police v. Onaligwo Nwakaeze & 25 ors. – Exhibit 14.

The respondents also filed a brief of argument and therein formulated 4 issues for determination as follows:

“1. Whether the court below was wrong in failing to accord Exhibits 13 and 14 the status of Res Judicata estopping the respondents from asserting ownership to the land in dispute.

9. Whether Exhibits 16, 17 and 18 have anything to do with the land in dispute to the extent of being regarded as adjoining lands to the land in dispute enabling the appellants to rely on them as a way of proving title.
10. Whether in the light of the evidence before the court, the court below was right in not regarding Exhibit 8 as reliable, and whether the court below made wrong use of Exhibit 3.
11. Whether on the totality of evidence before the court the judgment of the court below could be said to be against the weight of evidence.”

Arguing his first issue, G.E. Ezeuko Esqr. Learned senior counsel for respondents concedes that Exh. 13 i.e. judgment in Suit No. 0/63/61 was a suit between the Akanato Village of Umunya and the appellants in this appeal and that the people of Akanato lost to the appellants. He however submits that the appellants did not counter- claim and that the respondents were not parties in the case. Akanato Umunya and Ezi Umunya together make up the Akanano of Umunya. Counsel refers to G.A.R. Sosan & Ors. v. Dr. M.B. Ademuyiwu (1986) 3 NWLR (Pt.27) 241 at 251; Idesoh & Anor v. Chief Ordia (1997) 3 NWLR (Pt.49l) 17. As regards Exhibit 14, it is a judgment in a criminal case in which some members of the respondents’ family were charged before a magistrate’s court for malicious damage to property and conduct likely to cause a breach of the peace in charge MAN/303c/80 It is submitted that the facts of the case in Exh. 14 cannot found a defence of res judicata since the parties and issues are different.

The decision in Hunter v. Chief Constable of the West Midland Police (supra) cannot therefore be invoked. Counsel also refers to Ezeanya v. Okeke (1995) 4 NWLR (pt.388) 142 at 162.

On issue No. 2 learned senior counsel submits that Exhibits 16, 17 and 18 cannot be relied upon as one of the ways of proving title to land as enunciated in Idundun v. Okumagba (1976) NSCC (1976) 9-10 SC 227, 1 NMLR 200 vol. 10 page 445 at 454. The boundaries of land put in issue by respondents are defined exhibit 1.

From the said Exhibit and the evidence of P.W.5 the only appellants’ land having a common boundary with the land in dispute is the Ugwu- Akidi/Atorji land. Counsel submits that Exhibits 16 and 17 do not qualify for the application of section 46 of the Evidence Act. Exhibit 18 relates to Akidi/Atorji land. This land has a common boundary with the land in dispute on the Western side. According to P.W.5, this land is separated from the land in dispute by 7 boundary pillars. Exhibit 3, the first plan of the appellants, agrees with the respondents’ plan Exhibit 1. Exhibit 8 the amended plan of the respondents is designed to distort the fact of the agreement of the plans Exhibits 1 and 3, counsel submits.

Arguing issue 3, learned senior counsel submits that although after an amendment, what stood before the amendment no longer defines the issue before the court yet the court should not however shut its eye against the plan or pleadings which has been amended. He refers to Agbahomovo v. Eduyegbe (1999) 2 NWLR 437 at 450; (1999) 3 NWLR (Pt.594) 170 and submits that the position in the case in this appeal is identical with the above quoted case. Counsel contends that Exhibit 8 is unreliable.

The learned trial Judge held that the evidence of the construction of the roads across the land in dispute; the exercise of right over the rafia palm plantation on the southern part of the land in dispute; the planting of boundary pillars to demarcate the boundaries between the parties as testified to by the respondents’ witnesses were preferable to that of the appellants. For all that, the respondents have proved their case on the preponderance of evidence and against the appellants. This is the point made in issue No.4 of the respondents.

The respondents, like the appellants, also filed a supplementary brief with the leave of this court. The respondents adopt the appellants’ issue on standing-by (appellants issue vii) as their own issue 5. Learned senior counsel continues to assert that there was no evidence that the respondents participated in the 0/63/61 proceeding or supported the plaintiffs in that suit or that Dennis Nwabude of Ezi Umunya who testified in that suit did so as a representative of Ezi Umunya i.e. the respondents in this appeal. He pointed out that the learned trial Judge found as a fact that Dennis Nwabude testified in his personal capacity and therefore the said evidence does not bind the respondents. He refers to Ideso v. Ordia (supra).

It is further argued that there was no finding by the trial Judge that the respondents compromised their position so as to invoke the equitable doctrine of lashes, acquiescence or standing-by – refers to Bala v. Bakole (supra); Ofori Atta II v. Bonsura (1958) A.C. 95; Nwakonobi v. Nzekwu (1964) 1NLR 1019.

At the hearing of this appeal, counsel on both sides addressed the court. T.E. Williams Esqr. for the appellants refers to Exhibit 13 which was the proceeding and judgment in 0/63/61 and submits that the land in present dispute is the same as the land litigated upon in Exhibit 13. The learned trial Judge in the present case said that because the parties are different the case did not constitute res judicata.

He dismissed Exhibit 13 with a wave of hand as having no probative value. Counsel submits that Exhibit 13 constitutes an act of ownership and possession to the land in dispute by the appellants – refers to Akpan v. Otong (1996) 10 NWLR (pt.476) 108 at 130.  Submits that Dennis Nwabude, a titled Chief and a member of respondents’ family testified in Exhibit 13. The respondents cannot claim ignorance of the pendency of that case. Counsel also refers to Exhibit 14 i.e. the Magistrate’s Court case. Okwudu Nwakonobi who was convicted in Exhibit 14 was a member of the respondents’ family.

Counsel also refers to Exhibits 16, 17 and 18 and submits that they were tendered to substantiate appellants’ ownership of adjoining lands. He submits that all these were reflected in the composite plan Exhibit 8. The learned trial Judge again dismissed all these with a wave of hand by saying that they were not drawn to scale. Counsel submits that it was never an issue in the case. Despite the amendment made of Exhibit 3, the lower court made use of Exhibit 3. Learned counsel concludes by submitting that the lower court ought to have held that a case of standing-by and estoppel by conduct was made out by the appellants. He urges the court to allow the appeal.

G.E. Ezeuko Esqr. learned senior counsel for the respondents in his reply submits that this appeal depends wholly and entirely on Exhibits 3, 8, 13, 14, 16,17 and 18. He refers to Exhibit 13 (Suit No. 0/63/61) and submits that the case was between the appellants in this appeal and a different party known as Akanato. Res judicata therefore cannot apply.

On the doctrine of standing-by, counsel submits that the appellants filed Exhibit 3 and showed the boundaries of the land in dispute. Submits that Exhibit 3 contradicts Exhibit 8 tendered by the appellants.

Learned counsel refers to Exhibit 14 and submits that it was a charge for malicious damage to property and conduct likely to cause a breach of the peace. He urges the court to dismiss the appeal.

This appeal presents a typical land case in this part of the country. In Kodilinye v. Mbanefo Odu 2 WACA 336 the West African Court of Appeal stated that in a land case the plaintiff “must rely on the strength of his own case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment is for the defendant. Such a judgment decrees no title to the defendant, he not having sought the declaration.” I must quickly add that the more  recent trend of judicial opinion is that the weakness of the defendant’s case may be such as to aid the plaintiff’s case and pull it out of the doldrums of the weakness of his case.

In Idundun v. Okumagba (1976) NSCC 445 at 453 – 455, the Supreme Court lays down 5 modes of proving title to land in a declaration of title to land case viz:

(i) By evidence of traditional history;

(ii) By documentary evidence.

(iii) By acts of person claiming the land such as selling, leasing or renting out all or part of the land or farming on it over a sufficient length of time as to warrant the inference that he is the owner

(x) By acts of long possession and enjoyment of the land.

(xi) By proof of possession of connected or adjacent land

I shall now examine the various issues raised in this appeal in the light of the above principles enunciated in the above two cases.  It seems to me that a number of issues formulated by the appellants and on which they found their attack on the judgment of the lower court is on the failure of the lower court to do what it ought to do or doing it wrongly. I shall consider whether such non-direction (if one may call it so) or mis-direction led to a miscarriage of justice.

The first attack of the appellant is on Exhibit 14. Exhibit 14 is the certified true copy of the criminal charge in Charge No. MAN/303/80 – Commissioner of Police v. Onaligwe Nwakaeze & 25 Ors.

The 26 accused persons were charged on a two count charge. Count 1 charged them with an offence under Section 81 of the Criminal Code of Anambra State in that on the 19th day of October 1977 at Osile Ogbunike they in a manner likely to cause a breach of the peace entered the farm land which is in actual and peaceable possession of Osile Ogbunike Community. In count 2 the accused persons were charged with wilful and unlawful damage to crops on the farm lands of Osile Ogbllnike people contrary to section 451 of the Criminal Code.

Exhibit 14 is a criminal charge. The following facts must however be noted:

1.The accused persons are of Ezi Umunya Community the respondents in this appeal.

2.The charge says that the land they entered in a manner likely to cause a breach of the peace is situate at Osile Ogbunike of the appellants.

3. The accused persons of Ezi Umunya (respondents) damaged crops of Osile Ogbunike (appellants) on the land.
4. Evidence shows that Umunya people had taken action in respect of the land in Onitsha High Court in Suit No.0/63/61 and lost.
5. Since then, Osile people had been in peaceable possession of the said land and had their farms on the land.

6.19 of the accused persons of Ezi-Umunya were convicted of the offence of entering the farm land of Osile Ogbunike in a manner likely to cause a breach of the peace and damaging their crops.

7.The trial Magistrate held that he had “no doubt that since 1966 that Osile Community of Ogbunike had been in actual and peaceable possession of the piece of land.

The above facts and findings still subsist as there was no appeal against the judgment of the Magistrate’s Court.

I agree with the learned trial Judge that Exhibit 14 could not and does not support a plea of res judicata. I do not think that the appellants pleaded a defence of res judicata based on Exhibit 14.

The facts established by Exhibit 14, some of which are itemised above, are not however totally irrelevant in the suit in the present appeal. The leader of the accused persons Okwundu Nwakonobi who was the 8th accused person was found by the Magistrate as admitting that “the piece of land over which he took out a writ (0/134/77) is the same as the piece of land over which Akanato people of Umunya sued and lost in 1966 (0/63/61).” Thus, it seems that the people of Ezi Umunya folded their hands and watched while Akanato people and the appellants of Osile Ogbunike litigated over the piece of land; Akanato people having failed, the Ezi Umunya people sued over the land in 0/134/77. The result of suit 0/134/77 does not seem to be made clear in this proceeding. The fact however remains that the Ezi Umunya people are now litigating over the same piece of land with the appellants over which the Akanato people litigated with the appellants in 0/63/61 and failed. Exhibit 14 points to the fact that Ezi Umunya people knew about the litigation between the Akanato people and the appellants in suit 0/63/61 over the land in dispute, but chose to fold their hands and look on and are now litigating with the same appellants over the same land. I shall pause here on Exhibit 14 and shall return to it in due course, Let me now deal with Exhibit 13 which is issue No.2 of the appellants. In dealing with the 2nd dissue of the appellants I shall also deal with the 1st issue of the respondents which deals with Exhibits 13 and 14. Exhibit 13 is the suit between the people of Akanato Umunya and the appellants in this appeal. The Akanato Umunya lost to the appellants. Dennis Nwabude of Ezi Umunya testified for Akanato Umunya as P,W.4, He was the eldest son of Chief Nwabude who was a warrant Chief of Akanano Umunya. This is borne at page 7 of Exhibit 13. Akanano Umunya means Akanato and Ezi Umunya, He mentioned the names of land belonging to Ezi Umunya but never mentioned the Nno-Omo land in present dispute as belonging to Ezi Umunya. Can it be said that the people of Ezi Umunya did not know about the pendency of Suit 0/63/61. The suit 0/63/61 is over the same land as the land in present dispute.

It is my view that Exhibit 13, like Exhibit 14, does not constitute a res judicata but constitutes good evidence of estoppel by conduct or estoppel by standing-by. A party who stood by while a property he claims to be his is litigated upon is estopped from litigating over the same property with the former person or persons who litigated over the property while he looked on. It looks like an abuse of the process of the court if a person with full knowledge of the pendency in court of a suit over a property he claims to be his does nothing but merely looks on only to commence another proceeding in court over the same issue and asking the court to make another pronouncement on the subject matter. If this were to be the law in our country, there will be no end to litigation over the same property. It would mean that at any permutation and combination of persons (if I may sound mathematical) litigation may start again over the same property. I do not think that this is the law. It is certainly not the law in England from which we borrowed our legal system. Thus, Lord Halsbury L.C. in Reichel v. Magrath (1889) 14 Appeal. Cas. 665, 668 had this to say:

“…….I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again.”

The rather unfortunate thing in this case is that the lower court did not make an indepth consideration of these two exhibits and make a finding on them. Once he satisfied himself that it did not support res judicata, he brushed them aside without considering whether they raised the defence of estoppel by standing-by or estoppel by conduct. This is more so when these defences were pleaded. It is my view that his failure to consider the possibility of a defence of estoppel by standing-by or estoppel by conduct led to a miscarriage of justice. It is quite possible that if he had considered them he might have come to a different decision. This is more so when the plaintiffs/respondents in whose favour he decreed a declaration of title to land ought to succeed on the strength of their own case. As submitted by the respondents in their issue No.1, the learned trial Judge was not wrong in failing to accord Exhibits 13 and 14 the status of res judicata but he was definitely wrong in failing to accord the said exhibits the status of having appropriately raised the defences of estoppel by standing-by and estoppel by conduct. It is not enough to disown Dennis Nwabudo the son of the warrant Chief of Akanano i.e. Akanato Umunya plus Ezi Umunya who testified for Akanato in Suit 0/63/61 and who never said that the land in dispute belonged to Ezi Umunya and in the present proceeding pick on his younger brother Rowland Nwabude as 3rd plaintiff/respondent.  Hide and seek in a court proceeding never works for justice.

I shall now deal with issue Nos. 3, 4 and 5 of the appellants together with issue Nos. 2 and 3 of the respondents. Both issues deal mainly with Exhibits 15, 17 and 18. These issue show several litigations against the appellants in respect of lands in or around the land in dispute by diverse people. In exhibit 16 it was with Ekwensi of Ezi Nkwele. Ekwensi sued the appellants for declaration in respect of “Okpuno” land. The appellants won the case against Ekwensi of Ezi Nkwele. Part of the judgment of the court reads as follows:-

“The court considered that the land owned by Osili Ogbunike the defendants in this action is not confined to an area south of the Nkissi River….judgment is accordingly for the defendants for the land shown on plan B as the land in dispute in present action with a boundary commencing at a cotton wood tree… thence northerly to an OJI tree situate about one hundred yards north of Aguleri road thence northerly …” (Italics mine for emphasis)

The relevance of this judgment is that

(i) the respondents’ land, be it the land in dispute or any other land in the area extends northwards  beyond the Nkissi river;

(ii) that their land extends up to Aguleri Road and continues in the northerly direction.

Exhibits 1,3 and 8 show the Nkissi stream or river. Exhibit 1 is the respondents’ plan while Exhibit 3 is the appellants ‘plan tendered by the respondents. Exhibit 8 is the appellants’ plan. Exh. 3 tendered by the respondents shows the road to Aguleri. Thus, if one marries Exhibit 16 to Exhibit 1 and 3, the result is that the appellants, not only owns the land south of the Nkissi River but also owns part of the land in dispute which is north of the Nkissi River. The road to Aguleri traverses the land in present dispute.

I now come to Exhibit 17 which again is a judgment in a suit between the appellants as plaintiffs and Ikeji of Nkwoli and Ekwensi of Ezi Nkwele who was joined by order of court as defendants. The appellants again won in the suit. Part of the judgment says: ” … and that the plaintiff is entitled to the declaration he seeks.” It would seem that the identity of the land in Exhibit 17 was not brought to the notice of the lower court in the present appeal.

Exhibit 18 is an appeal on Exhibit 16. The appeal was dismissed. The final position as regards these exhibits is that in all, the appellants won the cases in respect of the lands which were the subject matter of the litigation. From exhibit 16, the land covers part of the land in present dispute. The sum total of all these judgments is that the successful party may, I say may, be the owner of the land in dispute. I may add that the appellants in this appeal did not claim anything in the court below. These judgments could therefore have the effect of weakening the strength of the respondents’ case and point to the fact that the respondents shall not be entitled to the reliefs claimed. The important point in this appeal is that the lower court failed to give these exhibits the due consideration which they deserve.

The plan Exhibit 8 is an amendment to Exhibit 3. Exhibit 8 was duly pleaded and admitted in evidence. It was not discredited under cross examination. Only a scant attention would seem to have been given to it by the lower court. On the other hand, Exhibit 3 is the plan which was amended by Exhibit 8. I had thought that when a pleading or plan is amended, the former plan or pleading which has been amended drops out and becomes irrelevant to the proceeding.  It may however be used in cross-examination. The answers elicited in such cross-examination are relevant. The attention of this court has been drawn to the Supreme Court decision in Agbahomovo v. Eduyegbo (supra), which follows its earlier decision in Salami v. Oke (1987) 4 NWLR (Pt.63) 1 at 9. These decisions in effect held that a plan which had been amended can still be used as if it had not been amended. I would have thought that if the opposite party wants to use the amended document he has to amend his own pleading and plead the said document. When a plan is amended in the pleading and a new plan is pleaded in its place the plan which has been amended drops out and becomes irrelevant to the proceedings unless pleaded by the party who intends to use it or used in contradicting a witness in the course of a cross-examination. The use of a plan which has been amended in the way and manner it was used in this case cuts across the rule that facts not pleaded go to no issue. Having said that much, I am however bound by the decision in Agbahomovo v. Eduyegbo (supra) and I respectfully bow to it. This court is bound by the decision.

Before I deal with issue raised in issue No.6 of the appellants and issue No.4 of the respondents, both of which talk about whether the judgment is against the weight of evidence, let me deal with the issues raised in the supplementary brief of the parties. The important issue in the supplementary brief of the appellants is whether the respondents are caught by the doctrine of estoppel by standing by.

The 2th issue in the supplementary brief is sufficiently dealt with in the main brief of the appellants. I have already touched on estoppel by standing-by while considering issue Nos. 1, 2 and 3 of the appellants and issues 1 and 2 of the respondents. I shall now consider the principle in greater details.

Now, what does the principle of estoppel by standing-by import? It imports that if a person is content to stand by and see his battle fought by somebody else in the same matter, he is bound by the result and should not be allowed to re-open the case. See Bello v. Fayose (1999) 11 NWLR (Pt.627) 510, 519. It is a specie of estoppel by conduct. A party is estopped because he omitted to intervene in a pending action affecting his interest, although he was not a party thereto. To rely on it, it must be specifically pleaded. See Ngwu v. Onuigbo (1999) 13 NWLR (Pt.636) 512, 527 SC; Ekpoke v. Usilo (1978) 6 – 7 SC 187; Etiti v. Ezeobibi (1976) 12 SC 13; Ogundiani v. Araba (1978) 6 -7 SC 55; Obodo v. Ogba (1987) 2 NWLR (Pt.54) 1; Iga v. Amakiri (1976) 11 SC. 1.

In the case in this appeal, in 1961, in Suit No. 0/63/61, Obagha Nwakeze, Thomas Menakaya and Agbankpu Anene, on behalf of the people of AKANATO IFITE, Umunya, at the High Court Onitsha, sued the present appellants, the Osile people, represented by Oguno Isiuzo, Edward Maka, Festus Chira and Basil Okonkwo. Festus Chira is the 3rd defendant, while Oguno Isiuzo, the DW1, in the present case. In a judgment delivered on 16th December 1966, the case was dismissed. There was no appeal against the judgment.

In paragraphs 14 and 15 of their further amended statement of defence, the appellants, relied on this judgment as constituting the defence of estoppel by conduct and estoppel by standing-by.

Paragraph 15 reads as follows:

“The present plaintiffs (i.e. respondents) were aware of  the proceedings referred to in paragraph 14 above and suffered the people of Akanato Ifite Umunya to fight the battle with the defendants. In the course of the said proceedings, one Dennis Nwabude of the plaintiffs family testified for the people of Akanato Ifite Umunya. The judgment in the said suit and also the judgment therein including the plan filed by both parties and the evidence of Dennis Nwabude will be founded upon.”

The parties are agreed that the same land was in dispute in  suit No. 0/63/61 as in the present suit. In the previous suit, the appellants called it “Ugwu Akidi”. The plaintiffs in the previous suit and the plaintiffs (i.e. respondents) in this suit call the land in dispute “Nno-Omo”. Though the plaintiffs in Suit 0/63/61 (i.e. Akanato, Ifite Umunya) and present plaintiffs, Ezi Umunya, constitute Akanano, the parties have fought this issue on the footing that the parties in both suits are different. The trial Judge of the lower court in the present suit regarded the previous Suit No. 0/63/61 as irrelevant, on the ground that it did not constitute the defence of res judicata. He was undoubtedly wrong in confining his consideration of Suit No. 0/63/61 to a plea of res judicata. This is because as shown above, appellants did not raise it as res judicata, but as estoppel by conduct, or estoppel by standing-by. It must be noted that such a crucial averment made by the appellants was not specifically met by the respondents in their pleadings, which suffered several amendments.

Estoppel by conduct or standing-by and estopppel per res judicata though they can arise from the same set of circumstances, are however two distinct defences. Res judicata arises as a matter of record. Estoppel by standing-by is an equitable principle and is essentially a question of fact. Where a person is content to be a spectator, rather than a gladiator, an onlooker rather than a player, the doctrine applies. There must however be evidence that a person knew that his fights or interests were being adversely affected, and yet chose to do nothing. The person need not be a party in the previous action, nor did he qualify as a privy in interest. If he were so, res judicata would apply. A non-party therefore will be estopped and thereby bound by the previous judgment, if he knew or ought to have known of the pendency of the previous suit and yet chose to do nothing or to stand by. Such a knowledge is either actual or imputed-See Anyaoke v. Adi (1986) 3 NWLR (Pt.31) 731 SC; Okpala v. Ibeme (1989) 2 NWLR (Pt.102) 208; Balogun v. Agboola (1974) 10 SC 111, 119. There is a stronger case made out where there is evidence that the person participated to an extent in the previous suit such as, by testifying on behalf of one of the parties but it is unnecessary to prove participation to the hilt.

In Ibrahim & Anor v. Dr. Mohammed (1996) 3 NWLR (Pt.437) 453, 456, where the Court of Appeal stated the true principle to be:

“The most important factor supporting a successful plea of standing-by is proof of knowledge of the acts of the person against whom the plea is set up and this notice notwithstanding, he took no steps to assert his rights.”

I am of the view that there is merit in the case of the appellants that the facts in this case warrant a successful plea of the principle of standing-by. Dennis Nwabude was the first son of Late Chief Nwabude who was the Chief of Ezi Umunya and Akanato (i.e. Akanano Umunya). He had testified in Suit No. 0/63/61. At that time, he was the head of the Nwabude family of respondents of Ezi Umunya, as he was at the time this suit was instituted. His testimony was to the effect that the land in dispute belonged to the plaintiffs in suit 0/63/61 i.e Akanato Umunya. He even enumerated the lands owned by his own people, which did not include the land in dispute. I am not unmindful of the fact that Dennis Nwabude did not claim to have been mandated by his Ezi Umunya people to testify for the plaintiffs in Suit No. 0/63/61. There is however nothing in the evidence to explain why Dennis Nwabude would turn against his own people. Significantly, D.W.2, who was a defendant in Suit No. 0/63/61 testified that other people of Ezi Umunya were in court when Dennis Nwabude testified in Suit No. 0/63/61. This was what he said:

“I was one of those that represented the defendants, that is Osile Ogbunike in the Suit (i.e. 0/63/61). In the Suit, a person from Ezi Umunya gave evidence for the plaintiff’s Akanato Ifite Umunya. His name is Dennis Nwabude. Dennis when he came to give evidence did not come alone. He came with Okwundu Nwakonobi, Abunie Nwakonobi, and Rowland Nwabude. These people are the plaintiffs in the present suit”.

This evidence went unchallenged by the respondents. DW 2 was not cross-examined at all on this piece of evidence, which was very  crucial and clearly damaging of the case of the respondents, respecting their awareness of Suit 0/63/61 while it was pending. Despite initial attempts to deny their knowledge, the respondents eventually through PW5, under cross-examination admitted that they were aware of Suit No. 0/63/61 as it raged between appellants and the Akanato Ifite, Umunya. The evidence of P.W.5 on 20/7/92 and 7/10/92 clearly shows that the respondents were fully aware of the pendency of Suit 0/63/61. There was evidence that some of the respondents accompanied him to court when he testified. Where members of a family who are aware of a litigation involving their property wish to be parties to the suit, they ought to apply to be joined. If however they do not so apply, they will be bound by the result of the litigation. See Okpala & Anor v. Ibeme & Ors. (1989) 2 NWLR (pt.l02) 208. Also in Mayor Shehu Ibrahim & Anor v. Dr. Mohammed (1996) 3 NWLR (Pt.437) 453, the Court of Appeal reiterated the principle as follows:

“The position is that if a party stood by and allowed the others to do an act in a particular way which he could have prevented at the time, he must be held bound by the act done with his acquiescence. In other words, if a party having a right stands by and sees another dealing with his property in a manner inconsistent with that right and makes no objection while the other is in progress, he cannot afterwards complain.”

In view of all the facts of this case, I am of the firm view that a case of estoppel by standing-by is abundantly made out against the respondents. I shall not repeat what I have already said while considering issues 1, 2 and 3 of the appellants and 1 and 2 of the respondents.

I now come to the final issue in this case i.e. judgment being against the weight of evidence. A lot of what should be said under this issue has already been dealt with in this judgment during my consideration of some of the exhibits. I have also referred to two important cases vis the cases of Idundun v. Okumagba (supra) and Kodilinye v. Mbanefo Odu (supra) as to how to prove title in a land case. I shall here consider briefly whether the imaginary judicial scale ought to have tilted in favour of the appellants or respondents if the evidence led on both sides were put on the said scale.

In a case of this nature, where a party relies mainly on oral evidence while the other relies mainly on documentary evidence, the trial court should give more weight to the documentary evidence rather than oral testimony. This is because oral evidence may tell a lie but documentary evidence which is shown to be genuine does not tell a lie. This may be what learned senior counsel for the respondents meant when he submitted before us that this appeal depends wholly and entirely on Exhibits 3, 8, 13, 14, 16, 17 and 18. All these exhibits are documentary evidence, they should be used as a base from which to assess the oral evidence.

In Exhibit 16 the people of Ezi-Nkwelle represented by Ekwensi sued the appellants in respect of a piece of land described by them as “Okpuno” land. The land is north of the Nkissi River. The other boundaries were described in the judgment. The Ezi Nkwelle people lost to the appellants. On appeal by the Ezi Nkwelle people, their appeal was dismissed as per Exhibit 18. In Exhibit 17 the plaintiffs in that suit representing the appellants in this appeal won their land case against Ikeji of Nkwolli and Ekwensi of Ezi Nkwelle.

Throughout these cases, the respondents did nothing to assert their right over the land in dispute. The doctrine of standing-by already considered in this judgment is relevant because the respondents in the case in the present appeal did nothing to assert their right while the litigations raged on. I have carefully considered all the evidence led in this case as borne out by the various exhibits and I am of the view that if the lower court had properly assessed the evidence, it would have had no difficulty in arriving at the conclusion that the weight of evidence was on the appellants’ side bearing in mind that they claimed nothing. The onus was on the respondents to prove that they were entitled to the declaration sought.

The respondents are afflicted and caught by the doctrine of estoppel by standing-by which I have considered at some length in this judgment and which the lower court completely failed to advert its mind to. In the circumstance, I shall allow this appeal. The appeal is allowed. The judgment of the lower court is set aside together with the order for costs. In its place I enter a judgment of dismissal of the respondents’ claim. I award N4000 costs to the appellants .

Other Citations: 2002)LCN/1162(CA)