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

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.

(b) that the action be struck out having regard to (a) (i) and (ii) above. The said judgments relied upon are attached as Annexures “A” and “B”.”

The learned trial Judge in his ruling said inter alia as follows:-

“In spite of the attempt of the counsel for the plaintiffs to distinguish the lands in dispute, in view of his admission that the other two conditions of estoppel per rem judicatam were satisfied, I am unable to appreciate the disputation here. In spite of the failure by the counsel for the plaintiffs to tender the plans of the lands in dispute I hold from the evidence before me viz, Exhibit one and particularly the description of the land involved in that exhibit, that the identity of the land involved in this present suit cannot be fairly disputed the lands in dispute are the same. The attempt to reopen the issue cannot be on the facts available and the present attempt is only to get back by some ingenious and devious design what the plaintiffs could not get by straight forward means, having so far slept for an unreasonably long time on their rights if at all. I hold therefore that they are estopped from litigating further on this issue which had already been adjudicated upon by two courts of competent jurisdiction.”

When the appeal came before us, the point was raised by learned counsel for the appellants that although the parties were agreed that they were the same as in the earlier trial of 1954 and 1955, and that the cause of action is the same, they contended that the land then in dispute is quite different from the land which is the subject matter of their appeal before us. Learned counsel for the respondent, quite rightly conceded in our view, that until the two plans of the land in dispute made by either party are in evidence, it is difficult to hold that the subject matter in the 1954 Kalabari Native Court case is the same as the land in dispute in the case.

The learned trial Judge, whilst appreciating this view of the difficulty of determining the identity of the land without having the plans of either party before him, nevertheless, ruled that there was some description in the notes of inspection made by the Kalabari Native Court in 1954, which in his view is sufficient to identify the land in the action before him. We are of the view that all that the learned trial Judge had to consider was whether on the exhibits before him, the land in dispute has been sufficiently identified to be the same as the land in dispute in the Kalabari Native Court action. In our view, until the evidence is led about the land in dispute in the action before him, and the plans attached to each pleading received in evidence, it is impossible for him to decide on the preliminary objection that the subject matter is the same.

We therefore allow the appeal and set aside the ruling of the learned trial Judge in PHC/60/72 and its award of costs. We remit the case back to the lower court for a retrial, taking into consideration our view that at the stage when the preliminary objection was raised, there was no evidence that the subject matter in the Kalabari Native Court case of 1954 is the same as the land in dispute before him. It will be open to either party at the retrial to give evidence of the land in dispute as per the plans attached to their pleadings. We award costs of N358 in favour of the appellants against the respondent.

Other Citation: (1978) LCN/1989(SC)