Chief Ibibo Obu Dokubo & Anor. V. Chief J. Omoni & Ors. (1999)

LAWGLOBAL HUB Lead Judgment Report

U. ONU, J.S.C.

The two main issues which arose for the consideration of this Court in the appeal herein are firstly, whether the Court of Appeal was right when it held that the learned trial Judge was in error not to have upheld the plea of estoppel per rem judicatam and secondly, whether the Court of Appeal was not in error when it held that the learned trial Judge erred in relying on the evidence that the Appellants’ predecessors obtained the permission of King Amachree IV to settle on the land in dispute since such evidence went to no issue as it was not pleaded by them.

The action itself was commenced by Chief Williams Seleya Big Tom, Chief Ibibo ObaDokubo and Chief Christopher Thompson, for themselves and as representing the Chiefs and people of Abalama Community on March 12, 1979, in the High Court of Rivers State, Degema Judicial Division, claiming against Chief Jonathan Omoni and nine others for themselves and as representing the Chiefs and peope of Tema Community jointly and severally for the following reliefs:-

“(i) A declaration of Plaintiffs’ Right of Occupancy over the piece and parcel of land known as ‘IGI-PIRI’ and the IGA CREEK situate at Abalama.

(ii) A perpetual injunction restraining the defendants and their servants from committing any trespass on the said land and creek and claiming compensation due on the land and creek from Guffanti Nig. Limited, West-minister Dredging Company Limited, or from any other company or persons; or the Degema Local Government Council; and

(iii) N50,000.00 general damages for trespass committed thereon.”

Pleadings were filed and exchanged. The Plaintiffs (herein Appellants) called three witnesses while the Defendants (herein Respondents) called six witnesses. In a reserved judgment delivered on October 12, 1983, the learned trial Judge (Fiberesima, J.) held that the Appellants were entitled to a declaration of customary right of occupancy as claimed. The learned trial Judge in addition ordered the Respondents to refund to the Appellants some money collected by the Respondent in respect of the land from a company. He also made an order of perpetual injunction against the Respondents.

Being dissatisfied with the said decision the Respondents appealed to the Court of Appeal (hereinafter in the rest of this appeal where the con so admits, referred to as the court below). The court below upheld the Respondents’ appeal and in consequence ordered a dismissal of the Appellants’ claims with costs. It is against that judgment that the Appeallants have lodged their appeal to this Court on five grounds contained in their Notice of Appeal dated 26th June, 1991.

The parties formulated issues in their briefs of argument which they duly exchanged in accordance with the Rules of Court. The Appellants submitted three questions as arising for our determinations as follows:-

(a) Whether the lower court was right when it held that the learned trial Judge was in error not to have upheld the plea of estoppel per rem judicatam.

(b) Whether the Court of Appeal was not in error when it held that the learned trial Judge erred in relying on the evidence that the Appellant’ predecessors obtained the permission of Amachree IV to settle on the land in dispute since such evidence went to no issue as they were (sic) nor pleaded by the Appellants.

(c) Whether the Court of Appeal was right in setting aside the findings of the learned trial Judge that the Appellants had proved their ownership of the land and were therefore entitled to the declaration sought.

The two issues which in the Respondents’ view arise for the determination of this appeal are:

(a) Whether the lower court was right when it held that the learned trial Judge was in error not to have upheld the plea of estoppel per rem judicatam.