Dennis Akoma & Anor V. Obi Osenwokwu & Ors (2003)

LawGlobal-Hub Lead Judgment Report

KUMAI BAYANG AKAAHS, J.C.A.

Two suits were consolidated at the trial. They are suit No. O/11/75 in which the appellants were the defendants and suit No. O/11/76 in which they were the plaintiffs. On consolidation of the two actions, the appellants were made the defendants, while the respondents remained as plaintiffs. Suit No. O/11/75 was first commenced at the Asaba High Court as suit No. A/30/72, but was later transferred to Ugwashi Uku Court, where it was renumbered as O/11/75. On 21/5/76, the defendants also instituted an action at Ugwashi Uku High Court and this latter suit was numbered O/11/76. The 1st and 2nd defendants in suit O/11/76 admitted in their pleadings that they granted a portion of the disputed land to the 3rd defendant; hence, it was not difficult to consolidate the two actions when an application to that effect was granted on 27/10/78.

In the amended writ of summons the plaintiffs claimed as follows:
“The plaintiffs claim jointly and severally for themselves and on behalf of Ogodor against the defendants jointly and severally for themselves and on behalf of Usebe village, Ebu as follows:
(a) A declaration that the piece and parcel of land described, known and called Ofia Ogodo (Ogodo bush) lying and situate in Ogodo, Asaba Division and verged pink in survey plan No. LUS 3081 filed with statement of defence in suit No.0/11/76 and now used for this suit is the property of the plaintiffs according to native law and custom.
(b) N600.00 (Six hundred Naira) being general damages for trespass.
(c) An injunction restraining the defendants, their servants and/or agents and each of them from continuing or repeating similar or other acts of trespass on the said land.”

The defendants as plaintiffs in 0/11/76 also claimed for
“(1) A declaration of title to all that piece or parcel of land known and called Iyi-Nkpume land in Ebu within the Ogwashi-Uku Judicial Division whose annual rental value does not exceed N10.00.
(2) N600.00 damages for trespass into the plaintiffs’ land which said land will be particularly described in the plan to be filed in court by the plaintiffs.
(3) Perpetual injunction restraining the defendants their agents and/or privies from further acts of trespass into the said land.”

The parties filed pleadings which were amended several times. The amended pleadings on which the case was tried are to be found on pages 113-127 of the records. 6 witnesses testified either way for the plaintiffs and the defendants. A number of exhibits were tendered and some rejected. The witnesses were cross-examined after which learned counsel addressed the court.

And in a reserved judgment dated 6/12/96, the learned trial Judge after reviewing the evidence called by either side entered judgment for the plaintiffs against the defendants in the following terms:
“(1) I declare that the plaintiffs are entitled to Customary Right of Occupancy of the entire land called Ofia ogodo or “Ogodo Bush” lying and situate in Ogodor, Aniocha North Local Government Area of Delta State verged Pink in Plan No. LSU 3081 of 10th September, 1977, exhibit B in this proceeding or plan No. LSU 5044 of 10th November, 1973, exhibit A in this proceedings also verged Pink therein.

(2) The defendants are to pay the plaintiffs the sum of N600.00 (Six hundred naira) damages for trespass.

(3) I hereby order injunction restraining the defendants their servants and/or agents, privies, and each of them from continuing or repeating similar or other acts of trespass on the land verged Pink in Plan No. LSU 3081 of 10th September, 1977 exhibit B in this proceedings or in Plan No. LSU 5044 of 10th November, 1973, exhibit A in this proceedings and thereon verged Pink.”

The learned trial/Judge then dismissed suit 0/11/76 in its entirety and ordered the defendants to pay N1,000.00 as costs to the plaintiffs.

Being aggrieved by the decision of Odita J. (as he then was) the defendants have appealed to this court on 3 grounds of appeal and with leave of court added two additional grounds from which five issues were formulated for determination as follows:
(1) Whether in the circumstance of the case it was proper for the learned trial Judge to invoke the doctrine of res judicata.
(2) Whether the learned trial Judge was right in pronouncing on the issue not canvassed before him which has denied the appellant fair hearing.
(3) Whether the learned trial Judge was right in rejecting admissible evidence.
(4) Whether the learned trial Judge properly evaluated the evidence before him.
(5) Having regard to the totality of the evidence before the trial court whether appellant was (sic) entitled to judgment.

The respondents identified four issues for determination as follows:
(1) Whether the issue of res judicata was the main pivot upon which the judgment of the lower court revolved.
(2) Whether in the circumstances of this case, the learned trial Judge was not right in rejecting the document sought to be tendered to contradict PW6.
(3) Whether the learned trial Judge did not adopt the correct approach, when he considered only the evidence of traditional history of both parties before arriving at a decision.
(4) Whether on the totality of the pleadings and (sic) before the trial court, the respondents were not entitled to judgment.

It would have been more appropriate to formulate only three issues for this appeal namely:
(1) Whether the learned trial court did not deny the appellant fair hearing when he suo motu invoked the doctrine of res judicata in arriving at his judgment.
(2) Whether the learned trial court was right to reject admissible evidence.
(3) If the learned trial court had properly evaluated the evidence, whether the appellant should have been entitled to judgment.

I shall adopt the issue I have framed in the consideration of the appeal.

On issue No.1, Eghobamien learned Senior Counsel for the appellants argued that res judicata was not raised by the respondents. He referred to paragraph 15(c) in the amended statement of claim dated 7/10/81, which was denied by the appellants in paragraph 12 of the amended statement of defence and submitted that res judicata does not avail the plaintiff to raise it in his statement. It is his contention that the learned trial Judge was in error, when he came to the conclusion that exhibit ‘C’ in suit No.74/50 constitutes res judicata. He argued that after the appellants had filed their statement of defence, the respondents failed to reply so as to raise the issue and that it is trite law that res judicata can only be raised as a defence.