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.

Continuing the argument, learned Senior Counsel expressed the view that it is anomalous for a plaintiff who has invoked the court’s jurisdiction to also be the party to attack the court’s jurisdiction by raising the plea. He said that res judicata should not be pleaded in the statement of claim, otherwise it will be absurd and cited the following cases in support of his contention namely: Ijade v. Ogunyemi (1996) 9 NWLR (Pt. 470) 17; H. E. Yoye v. Olubode (1974) 10 SC 209; (1974) A.N.L.R. 657; Odadhe v. Okunjeni (1973) 11 SC 343.

Learned Senior Counsel sought to draw a distinction between pleading a judgment raising estoppel and pleading res judicata which operates not only against the party whom it affects, but also against the jurisdiction of the court itself. As none of the counsel raised the issue of res judicata, nor was it raised in the pleadings as a defence argued learned Senior Counsel, the raising of the issue without inviting both counsel to address him on it amounted to denial of fair hearing and has thus occasioned a very serious miscarriage of justice and cited the case of Unical v. Essien (1996) 10 NWLR (Pt.477) 225; Odubeko v. Fowler (1993) 7 NWLR (Pt.308) 637 to buttress his argument. He said that the Supreme Court held in Katto v. CBN (1999) 6 NWLR (Pt.607) 390, that on no account should a court of law raise a point of law suo motu, no matter how clear it may appear to be and proceed to resolve the case between the parties thereon without inviting them or counsel on their behalf to address the court on the point. If it does so, it will be in breach of parties fundamental rights to fair hearing.

Making further submissions on the issue learned Senior Counsel contended that even if res judicata was properly raised, there is abundant evidence that the land admitted as exhibit ‘C’ in suit No. 74/50 is not the same land as the land in dispute as can be seen from the evidence of PW5 and PW6 who stated that the land litigated upon in suit 74/50 is different from the land in dispute. Without a survey plan the description of the land in exhibit ‘C’ cannot be ascertainable.

Mr. Ezeanwu, learned Counsel for the respondents submitted on issue No.1 that the issue of res judicata was not the pivot upon which the judgment of the trial Judge revolved as he had already made his findings and entered judgment for the respondents before considering the issue of res judicata. Thus, the question of res judicata did not affect the mind of the trial Judge in arriving at a conclusion. It is his contention that the parties in this case relied primarily on traditional history to prove their respective claims for declaration of customary right of occupancy. After reviewing the evidence adduced on both sides, the trial Judge preferred the evidence of the plaintiffs as against the defendants and gave copious reasons for his preference. He also held that the plaintiffs proved clearly and with certainty the identity of the land in dispute to entitle them to the declaration sought.

As the learned trial Judge did not rely on res judicata to come to his decision and as the pronouncement did not tilt the scale of justice in favour of any of the parties, it was not necessary to invite parties to address him on the point and if there was a mistake in the failure of the learned trial Judge to invite counsel to address the court, the mistake was not substantial as to lead to a miscarriage of justice. As neither side pleaded estoppel per res judicatam as being the main plank of its case, the pronouncement on it by the trial Judge should be regarded as irrelevant which did not affect the merit of the case. He relied on Ike v. Ugboaja (1993) 6 NWLR (Pt. 301) 539. Even where the appellants established an error in the judgment appealed against this will not ipso facto lead to allowing the appeal and cited the case of Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386 to support his argument.

At page 227 lines 29-32 and page 228 lines 1-21, the learned trial Judge considered suit No. 74/50 whose proceedings were tendered and admitted in evidence as exhibit ‘C’ and held that the suit constituted a valid plea of res judicata. Learned Senior Counsel for the appellants submitted that the plea of res judicata can only be raised as a defence and not in support of the claim for declaration of title to the disputed land. In paragraphs 15, 16 and 17 of the 2nd further amended statement of claim, the respondents as plaintiffs pleaded as follows:
“15 In Odiani clan court civil case No.57/50 Obi Osenweokwu v. Okonkwo Mgbeokojele the first plaintiff’s father sued the plaintiffs’ eastern Ibo tenants for arrears of rent as tenants in the farmland.
(a) One Chief Okoda from defendants village, who is now dead testified on behalf of Mgbokojele, and as representing one Asieme, the then Obi of Ebu. He testified to the effect that the land belonged to Ebu and all rents were due to Asieme.
(b) The clan court on noticing that ownership of the land was being contested by Ogodor and Ebu people, suspended judgment until one of the parties took action for a declaration of title to the area in dispute.
(c) Ebu people did not sue, but the plaintiffs in Odiani clan court suit No. 74/50 by the 1st plaintiff’s father, Obi Osenwokwu, sued Obi Asieme of Ebu for a “Declaration of title to the land and bush of Ogodor known as Ogodor Town Land -Bush” and obtained judgment.

16(a) In that case, one Ekpei a native of Ebu, but now dead, testified on the 27th day of September, 1950, as follows:
“The whole of Ebu town of nine quarters gave this land in dispute to plaintiffs’ foregrand fathers before the advent of British in Nigeria. We Okei and Usebe are one…”
(b) On the same day, Chief Okoda aforementioned also testified and said inter alia, ‘It now comes to the British avert that plaintiff keeps one man called Isaac Anene in the land. We called the plaintiffs attention and asked him why he allows an eastern Ibo man to come carried all monies inland and goes away without paying a farthing to you and also planting rubber depriving all the benefits that you will enrich yourself with. Okoda belonged to defendants village of Usebe. Anene’s settlement is shown as old camp in plaintiffs’ plan.
17. The plaintiffs will at the trial found on the said Odiani clan court suits and particularly rely on the testimonies of the deceased witnesses.”
From the paragraphs of the 2nd further amended statement of claim reproduced above, it is obvious that the plaintiffs were not setting up a plea of res judicata. I agree with the submission made by the learned Senior Counsel for the appellants that it is anomalous for a plaintiff who has invoked the court’s jurisdiction to also be the party to attack the court’s jurisdiction by raising the plea of res judicata. See: Ijade v. Ogunyemi (1996) 9 NWLR (Pt. 470) 17. While a plaintiff may set up estoppel in his pleadings, he is not allowed the plea of res judicata. The distinction between estoppel and res judicata was brought out in Odadhe v. Okunjeni (1973) 11 SC 343; Ibekwe JSC (as he then was of blessed memory) relied on the statement of the law by Coussey J. A. in Bassil v. Honger, when he said at page 353:
“We think that a distinction should be drawn between the pleas of estoppel and res judicata. This point was clearly stated by Coussey J.A., in the judgment of this court in the case of Bassil v. Honger, 14 WACA 569 at page 572 as follows:
‘Estoppel prohibits a party from proving anything which contradicts his previous acts or declarations to the prejudice of a party, who, relying upon them, has altered his position. It shuts the mouth of a party. The plea of res judicata prohibits the court from enquiring into a matter already adjudicated upon. It ousts the jurisdiction of the court.”

The intention of the plaintiffs in pleading the Odiani clan court suits 57/50 and 74/50, was not to set up a plea of res judicata, but rather to rely on the evidence given by Chief Okoda and Epei who have since died as estoppel to prevent the present appellants from claiming the disputed land as their own and denying that the respondents put Isaac Anene as tenant in the land.

The learned trial Judge was therefore in error when he held that exhibit ‘C’ constituted or created a valid plea of res judicata.

This is however, not the end of the matter. Learned Counsel for the respondents argued that res judicata was not the pivot upon which the judgment of the learned trial Judge revolved as he had made his finding and entered judgment for the respondents before he proceeded to consider the issue of res judicata; hence, the issue of res judicata did not affect the mind of the trial Judge before arriving at a conclusion. The learned trial Judge in evaluating the evidence adduced by the parties concluded that the two sides relied on traditional evidence. He found that the land in dispute originally belonged to Ebu people and not to the Usebe people. In suit 74/50, it was held that Ogodo Bush or “Ofia Ogodo” was granted to the plaintiffs by the whole Ebu not by the Usebe people alone.

The learned trial Judge found that the evidence given by Bidokwu Augustine (PW6) was corroborated by exhibit ‘C’. After considering other pieces of evidence, the learned trial Judge accepted the traditional evidence given by the plaintiffs, but held that the evidence of the defendants was inconclusive. Based on these findings he entered judgment for the plaintiffs.

Although, the holding by the learned trial Judge that exhibit ‘C’ raised the plea of res judicata was erroneous, this appeal has to be decided on whether the evidence adduced by the parties was properly evaluated or not. But before considering the issue, it is appropriate at this juncture to appraise the complaint of appellants’ counsel about the premature rejection of a document, which he considered relevant to the suit. According to the learned Senior Counsel, PW6 tendered exhibit ‘C’ and he was the star witness of the respondents. From his testimony, he was privy to the suit No. 74/50. He contended that the document that was rejected by the trial Judge at pages 101-103 of the record was relevant.

At page 99 of the records, learned Counsel for the defendants now appellants, stated that he could discredit the witness by the evidence of PW6’s father in a previous suit, concerning the same land and referred to the case of Salawu Agunbiade v. Dr. A. O. Sasegbon (1968) NMLR 223.
Section 34(1)(a) of the Evidence Act provides as follows:
“S.34(1) Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable provided:
(a) that the proceedings was between the same parties or their representatives in interest.”

In exhibit ‘C’ one Ikeduba testified for the plaintiff. He was the 2nd plaintiff when suit 0/11/75 was instituted. PW6 admitted that the 2nd plaintiff was his father, but he is now dead. The conditions for invoking S.34(1)(a) Evidence Act were all present since PW6 had given evidence of traditional history, the veracity of which could be tested by the evidence his father gave in an earlier suit. The reasons which the learned Counsel gave however, for wanting to tender the evidence through PW6 are not tenable. They will not be in consonance with section 209 of the Evidence Act which states that:
“S.209 A witness may be cross-examined as to previous statements made by him in writing relative to the subject matter of the trial without such writing being shown to him, but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him.”

Since PW6 was not the maker of the alleged document, I do not see how learned Counsel for the defendants could have tendered the said document through PW6. The best that could have happened under the situation was for the plaintiffs to have relied on the document for their case and it is then the defence could discredit the evidence of PW6 by referring to what is stated in the document as they tried to do with exhibit and PW6’s evidence on the family tree.

As to the evaluation of evidence, before the trial court which heard the evidence of the parties comes to a decision as to which evidence it believes or accepts and which evidence it rejects, it must first put the totality of the testimony adduced by both parties on an imaginary scale and weigh them together, if the weight tilts in favour of one side, it is that side that should be entitled to judgment. See: Mogaji v. Odofin (1978) 4 SC 91; Onowhosa v. Odiuzou (1999) 1 NWLR (Pt. 586) 173. An appellate court will interfere only, if the evaluation does not touch on the credibility of the witnesses and it is found to be perverse or does not flow from the evidence adduced at the trial which is in line with the pleadings. See: Ndukwe v. Acha (1998) 6 NWLR (Pt. 552) 25; Kobuwa v. Lamudu (1998) 9 NWLR (Pt. 567) 709; Soleh Boneh Overseas (Nig.) Ltd. v. Ayodele (1989) 1 NWLR (Pt. 99) 549.

Learned Senior Counsel for the appellants argued that PW5 gave evidence in support of the appellants pleadings; consequently, they can take advantage of his testimony. He also contended that the trial Judge did not properly evaluate the evidence of PW5, who stated that the land in dispute has boundary with his community land called Anachi and that if PW5’s evidence had been properly evaluated, the evidence of acts of continuous possession by the appellants coupled with the evidence of the boundary witness, he would not have arrived at the conclusion he reached.

It is the learned Senior Counsel’s argument also that it was agreed by both sides that it was Ebu community of which Usebe quarters is a part that granted the land in exhibit ‘C’ absolutely to the respondents and so the learned trial Judge reached a wrong conclusion when he held that the appellants who are from Usebe in Ebu did not originally own the land nor did they prove conclusively the root of their title. He therefore, urged this court to intervene and set aside the judgment since the conclusion is perverse.

Learned Counsel for the respondents submitted that the learned trial Judge appreciated the nature of the traditional evidence led before him, especially the evidence given by the star witnesses PW6 and DW6, carefully evaluated it, made deductions therefrom and gave reasons for arriving at the conclusions he reached which cannot be faulted. He argued that having preferred the evidence of traditional history given by the plaintiffs as conclusive, he was not bound to have recourse to evidence of events in recent times to determine the title of the land in dispute.

According to learned Counsel, the evidence of PW5 at pages 84-88 which the appellants sought to rely on as supporting their case was taken out of con since PW5 was talking of Anioma land, which he claimed belonged to Ubulubu people and not to Ezi people. He therefore, submitted that the conclusion reached by the learned trial Judge cannot be perverse, if the right interpretation is given to the evidence of PW5 and that on the totality of the evidence before the court, the plaintiffs/respondents prove their case on the preponderance of evidence and were entitled to judgment. He therefore, urged this court to dismiss the appeal as devoid of merits.

The crucial point to resolve in this appeal, is the area of land which the Ebu community gave out to the respondents. The appellants being one of the quarters that formed Ebu community that initially gave out the land to the respondents need not prove title to the land; nonetheless the onus is on them to show that they were in exclusive possession. See: Eze v. Igiliegbe (1952) 14 WACA 61; Onigbede v. Balogun (1998) 1 NWLR (Pt.535) 643. Since the respondents based their title on a grant by the Ebu community, the onus is on them to plead and prove the origin of title of the community unless that title has been admitted. In the instant appeal the title of the Ebu community was admitted. See: Ikegwuoha v. Ohawuchi (1996) 3 NWLR (Pt.435) 146.

In paragraphs 4, 5, 6, 7, 7a, 9, 10, 12, 13, 14, 15, 16 and 17 of the 2nd further amended statement of claim, the plaintiffs averred as follows:
“4. The land in dispute verged Pink, which is part of a larger expanse of land owned by the plaintiffs verged Yellow in the plaintiffs’ plan No. LSU 3081 is bounded on the south by Ogodo town itself and other portion of plaintiffs’ land not in dispute, on the west by Iyi Nkpume and the land of the Ebu people.

5. The plaintiffs inherited the entire land shown verged yellow in the plaintiffs’ plan of which the land in dispute verged pink is the lesser portion from one Okogboi, the earliest ancestor of the plaintiffs’ people. Okogboi begat Akote, the father of Izoya who begat Bidokwu, the father of Obi Osenwokwu and the 2nd defendant. Obi Osenwokwu begat Obi Akabude Osenwokwu. The 2nd plaintiff also has children.

6. The said Okogboi came from Bini. He first settled at Idumuje Unor and later moved to Ugbodu from where he moved to Obomkpa. He was a notable hunter and traveled far and wide in the forests around.

7. During his hunting expeditions, Okogboi met and made friend with one Igbo – Nwaodogwu, an Ezi man.
7a. It was during Okogboi’s association with his Ezi friend, that he went on the hunting expedition that took him up to a stream now known as Iyi-Anene, and which is shown on plaintiffs’ plan.

9. Okogboi communicated his finding to his friend Igbo-Nwoadogwu, and further expressed a desire to establish a permanent settlement in the area. He was told that the area belonged to the people of Ebu.

10. Okogboi and his Ezi friend arranged to meet the people of Ebu, whereupon they went to one Agbeona, who was then a leading figure in Ebu, to whom they explained their mission.

12. During a later visit as arranged, the bargain for an absolute grant of a piece of land to Okogboi, was concluded in the following terms:
(a) that Okogboi was to take oaths before three juju shrines that he would not allow unfriendly people to pass through his territory into Ebu. The juju shrines which belonged to Ebu were Ani – Ebu, Ubueyi and Iyiaja;
(b) that three goats were needed for the swearing ceremony which Okogboi had to produce;
(c) that in addition to this Okogboi had to produce two women to be bethrothed to Ebu people without payment of bride price.
(d) Okogboi performed all these conditions. The two women produced and given to the two divisions of Ebu were named Mgbodudu and Amuasua, the two divisions being Okomeje and Iyiakpechi.

13. On the conclusion of the ceremonies, the people of Ebu led by one Odokpe of Iyiago-shimili conveyed to Okogboi absolutely according to Native Law and Custom a portion of their land show verged Yellow in the plaintiff’s plan. The eastern boundary was fixed between the cotton tree and the Iroko referred to as “Oath” Tree (for oaths were taken thereat). These trees have now fallen leaving the stumps there. The oath tree stump and the cotton tree stump are shown in the plaintiff’s plan. This happened before the advent of the Europeans.

14. The plaintiffs as their ancestors before them farmed their land including the portions now in dispute, and exercise other acts of ownership and possession over the said land. They built houses thereon, tapped the raffia palm trees and have continued to let out the land to various tenants including copane mechanized farmers. The plaintiffs have also defended their rights of ownership and possession over the land and to the knowledge of the defendants’ people.

15. In Odiani clan court civil case No. 57/50 Obi Osenwoku versus Okonkwo Mgbokojele, the first plaintiff’s father sued the plaintiffs’ Eastern Ibo tenants for arrears of rent as tenants in the farmland.
(a) One Chief Okoda from defendant’s village, who is now dead testified on behalf of Mgbokojele, and as representing one Asieme, the then Obi of Ebu. He testified to the effect that the land belonged to Ebu and all rents were due to Asieme.
(b) The clan court on noticing that ownership of the land was being contested by Ogodor and Ebu people, suspended judgment until one of the parties took action for a declaration of title to the area in dispute.
(c) Ebu people did not sue, but the plaintiffs in Odiani clan court suit No. 74/50 by the 1st plaintiff’s father, Obi Osenwoku, sued Obi Asieme of Ebu for a ‘Declaration of title to the land and bush of Ogodor known as Ogodor Town Land – Bush’ and obtained judgment.

16a. In that case, one Ekpei a native of Ebu, but now dead testified on the 27th day of September, 1950 as follows: “The whole of Ebu town of nine quarters gave this land in dispute to plaintiffs’ foregrand fathers before the advent of British in Nigeria. We Okei and Usebe are one…’
(b) On the same day Chief Okoda aforementioned also testified and said inter alia, ‘It now comes to the British advent that plaintiff keeps one man called Isaac Anene in the land. We called the plaintiffs attention and asked him why he allows an Eastern Ibo man to come and carried all monies in land and goes away without paying a farthing to you and also planting rubber depriving all the benefits that you will enrich yourself with Okoda belonged to defendants village of Usebe. Anene’s settlement is shown as old camp on plaintiffs’ plan.

17. The plaintiffs will at the trial find on the said Odiani clan court suits and particularly rely on the testimonies of the deceased witnesses.”

The defendants denied the plaintiffs’ averments and claimed that the portion of land over which the litigation in the Odiani clan court civil suits 57/50 and 74/50 were instituted is different from the land now in dispute. They pleaded the following facts in paragraphs 4, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 of the second, further amended statement of defence:
“4. The defendants vigorously deny paragraphs 3 and 4 of the statement of claim and even that the land in dispute forms part of the defendant’s land known as and called Iyi-Nkpume land.
7. In further answer to the said paragraphs 5, 6, 7, 7(a), 8, 9, 10 and 11 of the statement of claim the defendants state:
(i) That when Odokpe was the Diokpa and head Chief of Iyagoshimi, Usebe and Aganike, that is to say, about 90 years ago, one Okolo Nwagba, a farmer and hunter from Ugboba, Obomkpa approached one Agbona, the then Chief and Head of Usebe family in Ebu and asked for the grant to him of a portion of the defendants’ Iyi Nkpume land to live on and farm subject to Ebu native law and custom.
(ii) That when Okolo Nwagba went to Usebe, Ebu for a portion of the said Iyi-Nkpume land he was accompanied by one Morah, an Ezi man who led him on the said mission for grant of the said land under Ebu customary law.
(iii) That following the said request by Okolo Nwagba to Agbona for the grant to him of a portion of the defendants’ Iyi-Nkpume land Agbona promised to take and did take him to the then Diokpa and head Chief of Use be called Odokpe before whom Okolo Nwagba renewed his request for the grant of a portion of the said Iyi-Nkpume land after presenting to him three calabashes of palm wine, 20 Kola nuts and one head of tobacco.
(iv) The said Diokpa and head Chief of Usebe and the elders of the defendants’ village including Agbona after full and detailed discussions and consideration of Okolo Nwagba’s request agreed to grant him a portion of Iyi-Nkpume land granted to him is that shown and delineated in Survey Plan No. MWC/1181/80 and therein verged green.

9. In still further answer to the said paragraph 12 of the statement of claim, the defendants say that about 90 years ago, their people made a grant of their Iyi-Nkpume land to Okolo Nwagba in accordance with Ebu customary law and subject to the following terms and conditions:
(a) That Okolo Nwagba will present a goat and swear by the Ani-Ebu shrine not to allow unfriendly people and or enemies of Ebu to enter the said portion of land granted to him, pass through the same to invade the defendants and their other people to Ebu;
(b) To live on and farm the land;
(c) Not to sell, lease or in any other way to dispose of or alienate the same without the consent of the people of Usebe;
(d) To pay customary tributes of 60 yams, 50 kola nuts and one calabash of palm wine every year to the defendants;
(e) That in the event of the said Okolo Nwagba or his descendants not having an issue to succeed him or them that the said portion of Iyi-Nkpume land granted to him shall revert to the Usebe people.

The defendants say that the land was not sold and no women were exchanged as is therein alleged or at all.

10. The defendants deny paragraph 13 of the statement of claim and put the plaintiffs to strict proof thereof. The defendants say that the portion of Iyi-Nkpume land granted to Okolo Nwagba under Ebu native law and custom is shown and delineated in the defendants’ Plan No. MWC/1181/80 and therein verged green and it was not the head Chief Odokpe who showed Okolo Nwagba the said land granted to him nor did he lead Ebu people to show the land as is alleged or at all. The defendants further deny that the Eastern boundary of the land granted was fixed between cotton tree and an ‘Oath’ Iroko tree, there being no ‘Oath’ Iroko tree as alleged or at all. The boundary of the land granted is shown verged green in the defendants Plan No. MWC/1181/80. The defendants put the plaintiffs to strict proof of all the other allegations contained in the said paragraph 13 of the statement of claim.

11. Paragraph 14 of the amended statement of claim is denied and in further answer thereto the defendants say that neither the plaintiffs nor their ancestors were ever in possession of the land in dispute nor did they exercise acts of ownership and possession as are alleged in the said paragraph or at all.

12. In answer to paragraphs 15, 16 and 17 of the amended statement of claim, the defendants says that the said suits, 57/50 (Obi Osenwokwu v. Okonkwo Mgbokojele) and 74/50 (Obi Ossenwokwu v. Obi Asiene) were instituted by Obi Osenwokwu and the said two suits were instituted in respect of and did not concern the land now in dispute, but concerned portions of the land granted by the defendants’ ancestor and shown, delineated the verged green in Survey Plan No. MWC.1181/80. The defendants will at the hearing contend that the said suits are irrelevant and inadmissible.

13. When Odokpe and his people granted the land to Okolo Nwagba, he Okolo Nwagba ,thankfully accepted the customary grant subject to the said terms and conditions and presented one goat with which he swore the Ani Ebu shrine.

14. After the said customary grant, Okolo Nwagba and his descendants faithfully kept the terms and conditions of the grant and paid the customary tribute until during the time of Obi Osenwokwu. At first Obi Osenwokwu carried out the terms and conditions of the grant and paid tributes to the defendants until about 1949, when he began to put tenants on the said land without the consent of the defendants and refused or failed to continue to pay the said tributes, all contrary to the terms and conditions of the said grant.

15. Following the putting of tenants, including one Isaac Anene of Obosi, on the said land by Obi Osenwokwu without the approval of the defendants in or about 1949, one Obi Asieme of Ebu objected that the tenants should pay rents to Obi Osenwokwu and he claimed that the same shall be paid to him. This claim by the said Obi Asieme led to the institution of suits 57/50 and 74/50 by Obi Osenwokwu against him. The said suits were in respect of portions of the said land granted to the plaintiffs’ ancestor, Okolo Nwagba by the defendant’s people.

16. The said portion of land granted to the said Okolo Nwagba to live on and farm is described shown and delineated on the defendants’ Plan No. MWC/1181/80 filed in this suit and therein verged green and it does not extend to or include the defendants’ land now in dispute, shown verged Pink in the said plan.

17. The defendant’s land now in dispute is bounded on or towards the North by the Utor river, and the land of Inyelen people in Ishan area of Bendel State of Nigeria, to the south partly by the land granted by the defendants to the plaintiffs’ ancestor and partly by the other land of the defendants’ not in dispute, on the East by Iyi-Nkpume and the other lands of the defendants also not in dispute and on the West by the Iyi-Anene and the land of Ogbeofu, Ezi called Ugboko Ogbeofu.

18. The said land in dispute has been the property of the defendants who have also been in possession of the same from time out of human memory. As owners in possession of the said land in dispute, the defendants have exercised maximum acts of ownership over the same by farming thereon, cutting palm fruits from palm trees growing on the land and giving portions thereof to tenants who farmed on the same, built their farm houses thereon and paid tribute to the defendants.”

On the evaluation of evidence, learned Senior Counsel referred to the evidence of PW5 as supporting the appellant’s case because of the answer he gave under cross-examination, when he stated that the land is different from this one in dispute. To fully comprehend and appreciate which land the PW5 was referring to, it is necessary to produce what he said at page 85 of the records. In answer to questions put to him under cross-examination he said:
“It is true that the plaintiffs have boundary with us. The Ubulubu people live at the land called Anioma. The land Anioma is owned by Ubulubu people not by Ezi people. I know of the suit between my people Ubulubu and Ezi. The land is different from this one in dispute.”

Since PW5 was being questioned about Anioma land which he said belonged to the Ubulubu people and a dispute had arisen between the Ubulubu and Ezi people, it is reasonable to draw a conclusion that the land which he was referring to as being different from the one in dispute was the Anioma land and not the land in exhibit ‘C’. In exhibit ‘A’ which was the survey plan No. LSU 5044 prepared by the plaintiffs’ surveyor, Anioma land was shown to be outside the disputed land. I therefore do not see how PW5’s evidence supported the appellants’ case. I therefore, agree with the submission made by the learned Counsel for the respondent that the statement made by PW5’s was taken out of con. If the cross-examination had been limited to the dispute between the appellants and the respondents, such a reply would be in favour of the respondents but PW5’s attention was drawn to the dispute between the Ubulubu and the Ezi people and it was in this respect that he said “the land is different from this one in dispute.”

The learned trial Judge considered the evidence of PW6, Bidokwu Augustine and found that the entire land of the plaintiff including the land in dispute is called “Offia Ogodor” or “Ogodor Bush” and is situated in Ogodo town in Aniocha Local Government Area of Delta State.

He said PW6 vividly described the boundaries features without any hesitation and they fell in line with the features shown in exhibits ‘A’ and ‘B’ the plaintiffs Survey Plan No. LSU 5044 of 10th November, 1973 and LSU 3081 of 10th September, 1977 respectively. He had not doubt in accepting his description of the land. The same land is described in Survey Plan No. MINC/1181/80 tendered as exhibit ‘D’ by the defendants’ surveyor as ‘Iyi-Nkpume’. It is the same piece of land that the plaintiffs called ogodor Bush or ‘Ofia Ogodo.’

In preferring the traditional history of the plaintiffs the learned trial Judge said at page 223 of the records:
“There is no doubt at all that the land in dispute including all the land of the plaintiff belonged to Ebu people. But the issue here is whether the said land belonged to the whole Ebu as contended by the plaintiffs or the Esebe people (sic) by the defendants. From the totality of evidence of the parties which I have seriously considered, I am firm that the land in dispute originally belong (sic) to Ebu people not to the Usebe people alone of the defendants. I am fortified in this regard by the proceedings in Odiani native court in suit 74/50 which was received in evidence as exhibit ‘C’.
Therein it was held that ‘Ogodor Bush’ or ‘Ofia Ogodo’ was granted the plaintiffs by the whole Ebu not by Esebe people of the defendants alone. The evidence of PW6 Bidokwu Augustine in this regard was corroborated by the said exhibit ‘C’. Consequently, I find as a fact and so hold that the land in dispute including all the other lands of the plaintiffs were granted to Ogodo people by Ebu people.”

The finding cannot be faulted. At page 6 of exhibit ‘C’ Chief Okoda testified for the defendants now appellants and the following question was put to him by the court.
“Q. Will you be contented to be sharing rents collected from all Eastern Ibo people in the land equally with the plaintiff?”
Yes! that is what I wanted.”

It was based on this answer he gave that judgment was entered for the plaintiff in the following words:
“Judgment for plaintiff for the declaration of title to land in view of Chief Okoda’s statements that he, Chief Okoda was born at Ogodo and that this land in dispute of Ogodo was alienated by the Ebu people on the whole to the plaintiff’s forefathers before the advent of British Government in Nigeria. And since twenty-two years now of paying tax. All remunerations due to the landlord were paid to the plaintiff up to date as a landlord. Which Ebu people never interfered. The plaintiff is still collecting tax in Ogodo town. It was Onicha-Olona court that the plaintiff’s father used to attend before then afterwards to Odiani one. They never attended Ebu court which shows that they are not subjected to Ebu. Therefore the land and its bush is for plaintiff.”
(See: page 6 lines 28-34 and page 7 lines 1-5 of exhibit ‘C’)

The judgment in exhibit ‘C’ was not appealed against up to the time the consolidated suits 0/11/75 and 0/11/76 were instituted. The judgment is therefore conclusive of the facts forming the ground for judgment for section 54 of the Evidence Act provides as follows:
“S.54 Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the court, and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which the judgment is intended to be proved.”

By virtue of section 54 Evidence Act, the judgment contained in exhibit ‘C’ is conclusive proof of the facts it decided. The plaintiffs now respondents could have pleaded estoppel of the said judgment since they remained plaintiffs in the consolidated actions in suit No. 0/11/75 and 0/11/76.

In conclusion, I find that this appeal lacks merit and it is accordingly dismissed.

I affirm the decision of Odita J. delivered on 6/12/96. I award N3,000.00 as costs in favour of the respondents.

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Other Citations: (2003)LCN/1462(CA)