Chief Ikeduwa Gbaruko & Anor Vs Ukaegbu Iroegbu & Anor (1972) LLJR-SC
Chief Ikeduwa Gbaruko & Anor Vs Ukaegbu Iroegbu & Anor (1972)
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UDO UDOMA, JSC.
In suit No. HU/224/196l in the High Court of the former Eastern Region, holden at Umuahia, the plaintiffs, herein appellants, claimed against the defendants, herein respondents, a declaration of title to a piece or parcel of land known as Egbere Eke Akoro, £300 damages for trespass and an injunction. The plaintiffs are the representatives of the people of Umuohu Mdume, Ibeku, and the defendants are sued as the representatives of the people of Okwuta.
In obedience to orders of court made in that respect, the plaintiffs and the defendants filed and exchanged pleadings and plans whereon were delineated the land in dispute known to the plaintiffs as Egbere Eke Akoro but to the defendants as Uzo Eke as well as other pieces or parcels of land some of which are contiguous with, and others within, the land at present in dispute alleged to have previously been in dispute between the plaintiffs and the defendants.
Indeed, on the pleadings as well as on the evidence at the trial, it was common ground that from time to time there had previously been disputes between the parties over certain pieces or parcels of land adjacent to or contiguous with or within the land in dispute, the subject matter of the present appeal, and on each such occasion such disputes had terminated in court actions. In 1945, by the Ibeku Native Court suit No. 67/1045, Exhibit P, in the proceedings, the plaintiffs herein obtained judgment for “an order of court for the defendants” (i.e. the defendants herein) “to quit”
the land “called Alaocha Ahaba in possession of defendants”. On appeal to the Odida Anyanwu Native Court of Appeal by the defendants – Appeal No. 67/1945. Exhibit P- the judgment of the Ibeku Native Court in suit No. 67/1945 was set aside and the land was ordered to be divided between the plaintiffs and the defendants herein.
Finally, in 1946, on a review at the instance of both parties by the Resident, the judgment of both the Ibeku Native Court in suit No. 67/ 1945, Exhibit P, and of the Odida Anyanwu Native Court of Appeal were set aside and the plaintiffs’ claim therein was dismissed. Judgment was entered for the defendants herein.
Now, the land Alaocha Ahaba, then in dispute in the Ibeku Native Court suit No. 67/1945, Exhibit P, is shown verged pink in the plan No. UI/46 dated 11th January, 1946, Exhibit P1, which was prepared on the order of the Resident, D.A.F. Shute, and was produced, tendered by consent of both parties and admitted in evidence by the Resident when he reviewed the case after the appeal to the Odila Anyanwu Native Court of Appeal. The said land Alaocha is also shown and delineated on the defendants’ plan No. CS/140/62 dated 4th August, 1962, Exhibit N, in the proceedings on appeal, as contiguous with the land in dispute herein, the southern, western and northern boundaries there of being thereon verged green while the eastern boundary, which is common between it and the land in dispute, is thereon verged pink.
The land Alaocha shown on the plans, Exhibits P1 and N respectively, as described above, includes another piece or parcel of land called Ala Ehi Miri the title to both whereof was subsequently awarded to the defendants herein in another suit – Odida Anyanwu Appeal Court Suit No. 269/47, Exhibit S, in the proceedings on the appeal in hand, which award was confirmed by Resident L.T. Chubb on appeal in his judgment dated 14th February, 1948 wherein the defendants’ claim to an adjoining piece or parcel of land known as Odo Akoro situate and lying south of Alaocha and Ala Ehi Miri and verged yellow and purple respectively in the plans, Exhibits P1 and N, was dismissed in favour of the plaintiffs herein. The defendants were non-suited in respect of their claim to the piece or parcel of land known as Uzo Eke by them.
Subsequently thereafter, in 1958 to be precise, the plaintiffs granted a portion of the present land in dispute called by them as already stated, Egbere Eke Akoro, and by the defendants herein as Uzo Eke to the Roman Catholic Mission for the purpose of building a training institution.
That sparked off another dispute and resulted in the defendants herein instituting in the Ibeku Native Court- suit No.643/1959, Exhibit E, in the proceedings on appeal – against the plaintiffs herein claiming as was then set out in their particulars of claim the following –
“Declaration of title to the plaintiffs’ land known and called Uzo Eke Okwuta land trespassed since two weeks.”
On 26th October, 1959, the Ibeku Native Court, after having inspected the land in dispute between the parties and a careful review of the evidence, entered judgment for the defendants herein granting to them as against the plaintiffs herein a declaration of title to the land, Uzo Eke by declaring in the said judgment that “the land Uzo Eke Okwuta belongs to the plaintiffs”.
The plaintiffs herein did not appeal against that judgment. Instead, they filed a fresh action – suit No. A/133/59 – in the Aba High Court against the defendants herein claiming a declaration of title to Egbere Eke Akoro, £50 damages for trespass and an injunction. Thereafter, they also filed and served on the defendants copies of their Statement of Claim and the plan of the land, the subject matter of the action, Exhibits Q and Q1 respectively in the proceedings on appeal. On 5th April, 1961, in the course of the trial of the case in the Aba High Court by Kaine, J., the plaintiffs herein submitted to a nonsuit and were accordingly non-suited with 30 guineas costs to the defendants herein.
Then came the present suit, judgment wherein is the subject matter of this appeal. The case was tried by Allagoa J., before whom both parties and their witnesses testified in support of their respective cases. In the course of their testimonies, they virtually repeated in varying degrees, the narrative of the long line of litigation between them as herein before set out. The plaintiffs also exhibited the proceedings in the Aba High Court in suit No. A/133/1959 between the plaintiffs and the defendants and the order made by Kaine, J., on 5th April, 1961 non-suiting them, Exhibit C and their plan, No. JJ/20/62 of 16th March, 1962, Exhibit A, showing the land Egbere Eke Akoro as made up of two distinct portions – one verged pink and the other green – the portion alleged to be in dispute and between them and the defendants being on the said plan, Exhibit A, verged pink while the green portion thereon is shown as the land lost by them to the defendants in the Ibeku Native Court suit No. 643/59, Exhibit E.
On the other hand, the defendants tendered, and it was admitted and marked Exhibit N, the plan of their land known to them as Uzo Eke, which virtually embrace the portions verged green and pink in the plaintiffs’ plan, Exhibit A. The plan Exhibit N, also shows the whole of the land which the plaintiffs claim to be theirs in the area.
It is verged green and includes Alaoicha and Ala Ehi Miri. In support of their plea of estoppel per rem judicatam, the defendants put in and relied upon the proceedings and judgment in the Ibeku Native Court suit No. 643/59. Exhibit E, between them and the plaintiffs as well as the plaintiffs’ copies of Statement of Claim and the plan No. A/133/59, Exhibits Q and Ql respectively in the proceedings on appeal. They also testified that the present suit is an attempt by the plaintiffs to relitigate the title to the whole land known to them as Uzo Eke which had previously been awarded to them by the Ibeku Native Court in suit No. 643/59, Exhibit E.
The learned trial Judge, in his judgment, found for the defendants. He upheld the plea of estoppel per rem judicatam in virtue of the Ibeku Native Court suit No. 643/59, Exhibit E, and found as a fact that it was obvious that –
“The plaintiffs are by the present action trying to wriggle out of the difficulty they found themselves in the Aba High Court by giving Uzo Eke, one contiguous piece of land two names, Egbere Eke and Egbere Eke Akoro”.
And thereupon dismissed the plaintiffs’ claim with 200 guineas costs to the defendants.
As might be expected, this being a land case between two apparently rival communities, who since 1945 have been engaged in interminable litigation over land in the same area, the plaintiffs are dissatisfied with the judgment and have therefore brought this appeal. Although at the hearing of the appeal, Chief Williams, learned counsel for the plaintiffs sought and obtained leave to argue three ground of appeal set out in the schedule to his application for leave in substitution for the original grounds of appeal;
iled, which were accordingly struck out, at the end of the day only one ground of appeal namely, “that the judgment is against the weight of evidence” was argued before us. The others were abandoned. In abandoning the third ground of appeal which had complained that “the claim for trespass and injunction should not have been dismissed, learned counsel conceded that as the Statement of Claim did not contain any averment in support of either of the reliefs, the plaintiffs’ claim under both heads was rightly dismissed by the learned trial Judge.
In support of the only ground of appeal argued, learned counsel sought principally to show that the proceedings and judgment of the Ibeku Native Court suit No. 543/59 Exhibit E, could not possibly form the basis of a successful plea of estoppel per rem judicatam. He contended that the learned trial Judge erred in accepting Exhibit E as sufficient to sustain the plea because, according to him, at the trial in the Native Court, there was no plan of the area in dispute produced in evidence and the land then in dispute was not clearly and precisely defined, although it was inspected by the Native Court before judgment.
It was also the contention of the learned counsel that, on the evidence as a whole, it was clear that the plaintiffs have “right” over the land in dispute delineated and verged pink in the plan, Exhibit A, as evidenced by their grant of a portion of the same to the Faith Tabernacle Mission. For these reasons, learned counsel asked that either the plaintiffs be non-suited or a new trial be ordered by this court; and in support of the application learned counsel craved in aid the case of Chief Sakpaku & Ors. v. Chief Lugu Ahiaku & Ors. (1942) 8 WACA 76.
These submissions are, of course, attractive and ingenious, but we would like to point out that the decision of the West African Court of Appeal in Chief Sakpaku v. Chief Ahiaku (supra) is irrelevant to the issues raised in this appeal. The submissions of learned counsel clearly, however, overlook the mass of evidence which the learned trial Judge considered and accepted before reaching the conclusion which he did. The most relevant materials for consideration on the plea of res judicata must be –
(1) the proceedings and judgment on appeal, Exhibit S, from the judgment of the Odida Anyanwu Appeal Court in suit No. 269/47 before Resident L. T. Chubb dated 14th February, 1948 and the plan, Exhibit A used therein.
(2) the proceedings and judgment in the Ibeku Native Court suit No. 643/59, Exhibit E;
(3) the proceedings and the order of the High Court, Aba, in Suit No. A/133/59, Exhibit C, in which the plaintiffs were non-suited; and the Statement of Claim, Exhibit Q, and the plan, Exhibit Q1, filed by the plaintiffs and used in the said suit; and
(4) both the plans Exhibits A and N, put in by the plaintiffs and the defendants respectively in the present suit on appeal.
In his judgment on appeal in Exhibit S, Resident L.T. Chubb relying on the plan, Exhibit A, as identifying the lands then in dispute between the defendants and the plaintiffs granted the defendants a declaration of title to the pieces or parcel of land shown, delineated and verged thereon green and pink and known as Ala Ehi Miri and Alaocha respectively; dismissed the defendants’ claim to the piece known as Odo Akoro land in favour of the plaintiffs; and non-suited the defendants in their claim for title in respect of Uzo Eke land. According to the plan, Exhibit A, Uzo Eke as shown thereon may be described as all that piece or parcel of land situate and lying between the path or road leading from Okwuta village to Eke Market (called also Eke Market in the plaintiffs’ plan, Exhibit A, in the present proceedings on appeal but Abia Eke Market in the plaintiffs’ plan in the Aba High Court suit No. A/133/59, Exhibit C, and Ahia Eke Market in the defendants plan Exhibit N) at the junction between the said path or road and the Umuahia/Ikot-Ekpene motor road, the Iand Uzo Eke being enclosed within the confluence of the two roads and situate to the north of the Umuahia/Ikot-Ekpene road to the eastern boundary separating it from Odo Akoro land and Ala Ehi Miri and Alaocha lands along which cement pillars had been planted.
On the evidence, there can be no doubt that the land called Uzo Eke by the defendants, which was the subject matter of the Ibeku Native Court suit No. 643/59, Exhibit E, whereof the defendants were granted a declaration of title as against the plaintiffs is the same land wherein they were non-suited in their claim to the title thereof by Resident L.T. Chubb in Exhibit S. It seems to us clear that it is the same land that the plaintiffs have always called and which, indeed, they say is known to them as Egbere Eke Akoro, and is the subject matter of the present suit on appeal.
We are reinforced in this view by the evidence given by the first plaintiff in the instant case in the Aba High Court suit No. A/133/59, Exhibit C, and the observations of Kaine, J. In consequence of which the trial had to be stopped and the plaintiffs non-suited in their claim therein for a declaration of title, £50 damages for trespass and an injunction. In the course of his evidence in that case in the High Court, Aba, the present first plaintiff, Chief Ikeduwa Obaruko, had said in part –
“Sometime last year the Roman Catholic Bishop in company of the Catechist called Onwukauche came to ask me (sic) for a portion of the land now in dispute to build training institution. I agreed and showed him a portion of the land which was my farmland. The Catholic Mission then cleared the bush. It was then that the defendants people went and sued the labourers who were clearing the land. I went to give evidence for the Catholic Mission in the Native Court. It was after this that the defendants sued me in the Native Court claiming the land which I gave to the Catholic Mission to be theirs and the Native Court decided in their favour. Before I could file an appeal, the defendants entered upon the whole of the land in dispute and damaged my crops and economic trees and carried away palm fruits, hence I brought this action.”
At that stage of the proceedings the notes made by Kaine, J., read as follows:-
“The Court, now asks Mr. Nwokedi how he can establish a declaration of title in view of the evidence now given by the plaintiff about the Native Court case since the plaintiffs plan did not show the extent of the land which they have lost in the Native Court. Mr. Nwokedi asks for an adjournment to amend the plan but upon further consideration, he agrees that the plaintiffs be non-suited.”
The plaintiffs were accordingly non-suited with 30 guineas costs to the defendants.
It should be observed that the plan which was tendered in the proceedings in that case and relied upon by the plaintiffs was Exhibit Q1 in the proceedings on this appeal. It was prepared for them by Licensed Surveyor Umo Bassey Duke who tendered the same in the proceedings during the trial. In Exhibit Q1, portions of the land purported to have been given to the Roman Catholic Mission and the Faith Tabernacle Mission were indicated not as separate pieces or parcels of land but as portions of Egbere Eke land.
In the plan, Exhibit A, it is also significant that, although the Faith Tabernacle Mission and the Roman Catholic Mission are shown, the portion which was allowed the latter being shown therein as the cause of the dispute in the Native Court suit No. 643/59 and as verged green, yet both portions are shown as forming part of the land Egbere Eke Akoro in dispute. In addition to all these, there is the fact that the learned trial Judge did not accept the evidence of the plaintiffs at all as to their ownership of any portion of the land in dispute.
We are satisfied that the learned trial Judge came to a right conclusion – a conclusion which on the evidence is absolutely irresistible when he said:
“Looking at the present plan of the plaintiffs, Exhibit “A” and the defendants’ Exhibit “N” and comparing it with Exhibit “P1”, I am satisfied that what the plaintiffs call Egbere Akoro is within Uzo Eke for which the defendants were nonsuited by Resident Chubb. On the 2nd issue, if one reads the proceedings in the Ibeku Native Court in 1959, Exhibit “E”, particularly the evidence of Ukaegbu Iroegbu describing the land Uzo Eke and piecing it with the features mentioned by the Native Court during their inspection of the land, e.g. the Umuahia/Ikot-Ekpene motor road, Faith Tabernacle Church site, Land of Umuana Ndume, Oda Akoro of Ekeleme, land of Umuaruko and other lands of Okwuta, I am satisfied both from what Mr. Onochie and defendants said and from my own observation that the area claimed by the defendants in Exhibit “E” and for which they got judgment was the whole of Uzo Eke land which the plaintiffs now call Egbere Eke Akoro.”
Having reached that conclusion, the learned trial Judge had no alternative but to dismiss the plaintiffs’ claim which he did. This appeal therefore fails. It is dismissed with 57 guineas costs to the defendants.
Other Citation: (1972) LCN/1431(SC)