Chief Mark Young Jack & Ors V.deliver Igonikon Harry (1978)

LawGlobal-Hub Lead Judgment Report

S. SOWEMIMO, J.S.C. 

In Suit PHC/60/72 in the Rivers State High Court sitting at Port Harcourt, the plaintiffs, who are appellants before us, filed the following claim:-

“1. A declaration of title to a piece or parcel of land of an annual value of 10 pounds situate at Young Jacks Compound Abonnema in Degema Division which has been in the peaceful enjoyment, possession and occupation of the plaintiffs.

2. A perpetual injunction restraining the defendant, her servants, agents and all persons claiming through or under her from interfering with the plaintiffs’ title, rights and interest in and over the said land.
3. 100 pounds General damages for trespass.”

A preliminary objection was taken at the hearing of the case by learned counsel for the defendant who is respondent before us, on the ground that the plaintiffs are estopped per rem judicatam from relitigating this action. At the hearing of the preliminary objection, only two exhibits were admitted for the purpose of the argument in the case. These are the judgment of the Kalabari Native Court in Suit No. 422/52 of 21/2/54 and the Magistrate Court Degema judgment No. D/19A/54 of 1/3/56. The learned trial Judge held on this preliminary objection that the plea was made out and therefore dismissed the plaintiffs’ claim. In paragraphs 5 and 7, the appellants in their Statement of Claim averred as follows:-

“5. Chief Kio Young Jack (deceased) who succeeded late Chief Young Jack allotted a piece of land edged blue on the Plan hereinabove described to one late Madam Enwere grandmother to the defendant for temporary occupation but in 1954 the Kalabari Native Court converted the temporary possession into a permanent grant to the defendant.

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7. The plaintiffs had warned the defendant to remove the property placed on the land in dispute and stop the trespass but the defendant has refused despite this court action.”

The defendant in reply pleaded as follows:-

“5. In further answer to paragraph 5 of the Statement of Claim, the defendant will say that, in 1954, the same plaintiffs instituted an action against the defendant for the same land in Suit No. 422/54 in the Kalabari Native Court, claiming as follows:-

‘(a) a declaration of right and title of ownership possession occupancy and users vested in the plaintiffs to all that piece and parcel of a building land known and called Young Jack area or portion at Jacks Compound, Abonnema ,bounded on the left side, East by a lane on to the main road as boundary with the land of Boy Whyte and on right side West opposite the St. Paul’s Nyomoni Church, Abonnema in the District of Degema Rivers Province, Eastern Region Nigeria is the property of Young Jack the settlement of Abonnema people on the Abonnema Island from the Old Shipping on about 72 years ago. That the plaintiffs are the direct descendants and heirs and domestic servants sons who are successors in title and beneficiaries of the property of the deceased Young Jack by virtue of right and inheritance according to Kalabari Native Law and Custom. The said piece or parcel of land to be particularly shown to the court at and or during the inspection of the said piece of land area in dispute.

(b) an injunction to restrain the defendants their heirs, agents servants and otherwise workmen or each and everyone of them from using or interfering in any other way with the said piece or parcel of land until whenever this dispute is finally disposed of by any court or courts.’

6. In further answer to the said paragraph 5 of the Statement of Claim, the defendant will say that the Kalabari Native Court heard the action of the plaintiffs, and dismissed it. The said judgment of the Kalabari Native Court will be founded upon at the trial.
7. The plaintiffs not satisfied with the judgment of the Kalabari Native Court went on the appeal to the Magistrate Court, Degema and on the 1st March, 1956, the appeal was dismissed with twenty five guineas cost to the defendant. The said judgment of the learned Magistrate will be founded upon at the trial of this action

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11. Wherefore, the defendant will at the trial of this action raise all legal and equitable defences open to her and will raise the following preliminary issues at the trial:

(a) that the action is bound and caught by the doctrine of –

(i) Res Judicata

(ii) Estoppel.