Dennis Akoma & Anor V Obi Osenwokwu & Ors (2014)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C.

At the trial Ugwashi-Uku High Court of the then Bende State of Nigeria, two suits between two communities were consolidated. In Suit No. 01/11/75, the Appellants herein were the Defendants and in Suit No. 01/11/76, they were the plaintiffs. On consolidation of the two land suits, the appellants were made the Defendants while the Respondents remained as plaintiffs. Suit No. 01/11/75 was first commenced at the Asaba High Court as Suit No. A/30/72, but was later transferred to Ugwuashi-Uku High Court as Suit re-numbered as 01/11/75. On 21/5/76, the Defendants Appellants herein also instituted an action at Ugwuashi-Uku High Court and it was numbered 01/11/76. The 1st and 2nd Respondents admitted in their pleadings that they granted a portion of the disputed land to the 3rd Respondents; hence it was not difficult for the trial Court to consolidate the two actions when an application to that effect was granted on 27/10/78.

I shall summarise the facts of the case leading to this appeal. In their Amended Writ of Summons, the Respondents as plaintiffs, claimed as follows:

“The plaintiffs claim jointly and severally for themselves and on behalf of Ogodo 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 situated in Ogodo, Asaba Division and verged pink in Survey plan No. Lus 3081 filed with statement of Defence in Suit No. 01/11/76 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.”

On the other hand the appellants herein, as plaintiffs in Suit No. 01/11/76 also sought for a declaration thus:

“(1) A declaration of title to all that piece or parcel of land known and called Iyi-Nkpume land in Ebu within Ugwashi-Uku Judicial Division whose annual rental value does not exceed N10.00.

(2) N600.00 damage for trespass into the plaintiffs’ land which the 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 their respective pleading which were severally amended. A total of 6 witnesses testified for the Plaintiffs and Defendants respectively. A number of Exhibits were tendered and admitted in evidence and some were rejected by the trial High Court. The witnesses for the parties were Cross-Examined after which the respective Counsel addressed the Court. The case was reserved to 6/12/96 for judgment when the learned trial Judge ODITA (J) (as he then was) after reviewing the evidence called by either side, entered judgment in favour of the Plaintiffs on pp.228-229 of the records, in the following terms:

(1). I Declare that the plaintiffs are entitled to Customary Right of Occupancy of the entire land called OFIA OGODOR 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 proceedings 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 these proceedings or in Plan No. LSU 5044 of 10th November, 1973 Exhibit A in this proceedings and thereon verged PINK.

The Suit No. 0/11/76 of the defendants and their claims thereof are hereby dismissed in its entirety. Costs of N1000.00 to the plaintiffs against the defendants.

Dissatisfied with the judgment of the learned trial judge, the Appellants herein appealed to the Court of Appeal Benin Division vide their Notice of Appeal filed on 24/12 /96 on 3 Grounds of Appeal and with leave of Court added 2 additional grounds from which 5 issues were identified for determination. The Court below however, dismissed the appeal and affirmed the findings and judgment of the trial Court (see pp.300 – 323 of the records.

It is against that judgment that the Appellant have further appealed to this Court upon 3 Grounds of Appeal as follows:

GROUND (1)

The learned justices of the Court of Appeal erred in law for failure to comply with S. 294 (1) and (6) of the 1999 Constitution which non-compliance has caused serious miscarriage of Justice.

GROUND (2)

The learned Justice of the Court of Appeal erred in law in relying on exhibit C as res judicata when they held “the judgment in Exhibit ‘C’ was not appealed against up to the time consolidated suit 0/11/75 and 0/11/76 were instituted. The judgment is therefore conclusive of facts forming the ground for judgment”

GROUND (3)

The learned justices of the Court of Appeal erred in law in pronouncing on an issue of estoppels not canvassed before them which had denied Appellant fair hearing.”

In the light of the judgment of the Court below, being appealed against and the grounds of appeal filed, the Appellant identified the following 3 issues for determination:

“(a) whether in the face of the provision of Section 294(1) and (6) of the 1999 Constitution, the judgment of the lower court is not a nullity.

(b) whether the learned justices of the Court of Appeal were right in dismissing the Appellant’s Appeal on the ground that Exhibit ‘C’ constituted res judicata.

(c) whether the Court of Appeal were (sic) right in pronouncing on an issue not canvassed before the Court without inviting parties to address on it.”

On the other hand, the Respondent have equally raised 3 issues similar to those identified by the Appellants for determination thus:

“(i) Whether by virtue of the provision of Section 294 (1) (5) and (6) of the 1999 Constitution the judgment of the Court of Appeal amounts to a nullity.

(ii) Whether the Learned Justices of the Court of Appeal dismissed the Appellants appeal on the ground that Exhibit ‘C’ constitutes res judicata; and if so, whether same has led to a miscarriage of justice.

(iii) Whether the Court of Appeal pronounced on an issue not canvassed before the Court without inviting parties to address on it and if so whether same has led to a miscarriage of justice.

In the light of the foregoing, it is obvious that the 3 issues raised by the respective parties in this appeal are similar. I cannot fathom out why the Respondents did not simply adopt the Appellants issues and simply canvass arguments in support of them.

In Issue No. 1 which I have observed is identical to the Respondent’s Issue No. 1 on the main plank of the appeal, the Appellants have drawn our attention to the lapse of time between final addresses by Counsel on behalf of the parties at the lower court and when the learned Justices of that Court eventually delivered judgment on the appeal. Learned Counsel for the appellants FOLABI KUTI Esq., has submitted that it is evident on pages 299-324 of the records that final addresses were made on 18/2/2002, whilst judgment was delivered on 30/7/2003, a period of over 450 days after the conclusion of final addresses. It is submitted that the time within which the court below must deliver its judgment in writing as constitutionally provided by S. 294 (1) of the 1999 Constitution is not later than 90 days after the conclusion of the final addresses. That as a mandatory provision, its breach is unconstitutional and therefore renders the judgment given outside this mandatory period a nullity. Reliance was placed on the cases if IFEZUO v. MBADUGHA (1984) 1 SCNLR 427; ODI v. OSAFILE (1985) 1 NWLR (pt. 1) 1.

It is conceded that a cumulative reading of subsections 1 and 5 of Section 294 clearly show that a decision would not be nullified for non-compliance unless and until the Appeal Court considering a complaint an appeal is fully satisfied that the party complaining of such late delivery shows that it had suffered a miscarriage of justice as a result of such late delivery of the judgment: See OWOYEMI v. ADEKOYA (2003) 18 NWLR (pt. 852) 307.

Relying on the decision of this Court in DIMBIA MAKA v. OSAKWE (1989) 3 NWLR (pt. 107) 101 at 114, learned counsel for the Appellants has submitted thus:

That in deciding whether a party has suffered a miscarriage of justice as a result of inordinate delay between the conclusion of a trial and the delivery of judgment, the emphasis is not on the length of the time simpliciter but on the effect it produced in the mind of the Court. That is if the inordinate delay apparently and obviously affected the case, then the Appellate Court would intervene and hold that there has been a miscarriage of justice. It is submitted that the instant case, the inordinate delay in delivering judgment, has deeply impacted in the Court’s perception, appreciation and evaluation of the appeal, thus severely occasioning a miscarriage of justice as apparently shown in their Lordship’s difficulty at having a proper appreciation and evaluation of the case evident in several passages of their judgment. Particularly those on pages 307 of the records.

To embellish the foregoing arguments, learned counsel concluded his submission on this note: That non-compliance simpliciter without more with the provisions of Section 294(1) by the lower court will not render its judgment a nullity, unless by virtue of Section 294(5) the party complaining has shown that he has suffered a miscarriage of justice by reason of non-compliance. It is urged on this court to give a literal interpretation to the clear and unambiguous words of Section 294, which intend merit is not difficult to see: as it reveals that the requirement of miscarriage of justice becomes evident only when subsections (1) and (5) are read together. Indeed whilst the community reading of subsection and (6) of S. 294 (supra) shows that the subsection was enacted to act as a check on both the trial and the Appellate Courts the failure of the Court (as in the case at hand) in not reporting the non-compliance to the National judicial Council would render any such decision null and void.

On issue No. 2, it is the contention of the Appellants’ Counsel herein that the learned justice of the Court of Appeal fell into a grave error in relying on Exhibit ‘C’ as res judicata, when they held that the judgment in Exhibit ‘C’ is conclusive of the facts farming the grounds for the judgment. Learned Counsel for the Appellants has further contended that the Respondents never raised the issue of res judicata as it does not avail them, as plaintiffs, to make any such claim in the statement of claim. He submitted that learned trial judge erred when he came to the conclusion that ‘Exhibit ‘C’ in Suit No. 74/50, constitutes res judicata, a position which the court below also had to support. It is submitted that the court below having held that the approach of the learned trial judge on the issue of plea of res judicata was wrong, the said lower court ought to have followed the ratio of this court in ODOFIN & ORS v. MOGAJI & Ors (1978) 2 NSCC 275 and accordingly order a retrial in the circumstance of this case.

It is further submitted that the court below failed to review the erroneous evaluation of the evidence by the trial court in Suit Nos. 0/11/75 and 0/11/76 and this led to their conclusion that Exhibit ‘C’ created res judicata. He refers to the passage in the lead judgment on page 320 of the records paragraph 17.

Arguing issue No.1, learned Counsel for the Respondent submitted that assuming but without conceding that this issue has merit and is consequently that resolved in favour of the Appellants, this would have the legal consequences, inter alia, of not entering judgment for a declaration of title to the land in dispute in favour of the Appellants by this court as prayed for by the Appellant in his brief; but most importantly, that would nullify the judgment of the court below while leaving intact, the 1966 judgment of the trial High Court, which granted the Respondents a declaration of title to the said disputed land and restrained the Appellants perpetually from trespassing thereon.

However, arguing on the core issue, learned Counsel, agreed with the submission of the Appellants’ learned counsel on the legal effect of non-compliance with Section 294 (1) and 294 (5) of the 1999 Constitution. He equally agrees with their further submission that in determining whether a miscarriage of Justice has occasioned due to the inordinate delay, the emphasis is not on the length of time simpliciter, but on the effect it produced in the mind of the court such as, if the inordinate delay is found to have obviously affected the court’s perception, “appreciation and evaluation of the case,” and it is in such cases that the appellate court would interfere.

However, the learned Counsel does not agree that the delay in delivery of the judgment by the court below has affected the perception, appreciation and evaluation of the case, neither has the delay “eroded the confidence in the entire judicial system”. He advances the following reasons. The fact that Section 294 of the Constitution applies mostly to judgments of trial courts where the judge after seeing and hearing the testimony of witnesses, has delayed delivery of judgment for such a long time that from the judgment it becomes apparent that he has lost touch or grasp of the evidence led, and perhaps forgotten the demeanour of the witnesses who had testified before him, thus in this circumstances, a miscarriage of justice has occasioned, in the other hand, as opposed to the Appellate Court which has the duty of only reviewing the case at the trial court and arrived at its judgment based on printed records only. In the foregoing circumstances the Appellate Court can rarely be said to have lost touch of the contents of the printed records placed before it. Learned counsel submitted therefore that the learned justices of the court below did not after finding that the learned trial Judge was in error to have held that the native court proceedings and judgment in Exhibit “C” was res judicata, the “somersaulted” to conclude that the said Exhibit “c” constituted res judicata, due to the inordinate delay in delivering their final judgment.

Learned Counsel has flawed Appellants’ argument that failure of the presiding Justice of the court below to send a report on the delay in delivery of his final judgment to the Chairman of the National judicial Council as provided in Section 294 (6) of the Constitution (even if the said delay did not occasion any miscarriage of justice to the Appellants) renders the judgment of that court null and void. He has contended that the foregoing subsection of the Constitution, is purely administrative provision, meant to enable the National Judicial Council, the body vested with the power to discipline erring judicial officers) to take any disciplinary measures, it may seem fit to take against those judges who frequently disobey the said provision of Section 294 (1) supra

Submitting on issues 2 and 3 together learned Counsel for the Respondents has submitted that the court below never found that the judgment in exhibit ‘C’ was res judicata, but that certain facts which were accepted by the National Court therein constituted issue estoppel which were clearly pleaded in paragraphs 15-17 of the Respondent’s pleadings pp 53-54. It is submitted that the phrase “issue estoppel” and “res judicata” need not be expressly stated in a party’s pleadings, provided facts Constituting such a plea are stated; as was clearly done by the Respondents herein, consequently, it is not correct for the Appellants to argue that the court below made out a case of issue of estoppel for the Respondents and proceeded to pronounce on same unilaterally as the parties fully joined issues on the plea in their Amended statement of claim and Amended statement of defence.

On the concept of what constitutes res judicata or issue estoppel, the learned counsel though agrees with the general principle that it is used as a shield and not as a sword, it can not apply to the instant case. His reason is that there are two actions for declaration of title: one by the Respondents as plaintiff swing the Appellants as Defendants, and were perfectly entitled to rely on the plea in their defence in the suit against them by the Appellants claiming declaration of the title over the same parcel of land adjudged to belong to the Respondents by the Native Court in Exhibit “C”. He did not, however, concede that the Court below found that the proceedings and judgment in Exhibit “C” constituted res judicata or issue estoppel.

It is submitted however, that the judgment of the learned trial judge which was affirmed by the Court of Appeal was founded in traditional evidence of the parties and not necessarily on res judicata. Finally he urged the Court to dismiss the appeal and affirm the decision of the Court below.

As noted from onset this appeal emanated from a consolidated land suits between two communities in which the lower court affirmed the findings and judgment of the trial court. The appeal, however, falls within a narrow compass. The issues set out by the parties herein are simple and straight forward, Appellant’s issue No.1 is identical to the Respondent’s issue No. 1, which is the main plank of the Appellant’s appeal. This issue shall be taken and considered separately. Issues 2 and 3 of the respective party shall be considered together.

On issue No. 1, certain facts are not at all in dispute, having been legally provided/established and/or conceded. The facts are as follows:

Firstly, the fact that Section 294 (1) of the 1999 Constitution makes it mandatory for a Court to deliver its judgment within 90 days after final address, and that by Section 294 (5) of the same Constitution, a judgment will not be invalidated or nullified for non-compliance unless and until the Appellate Court considering such a complaint on appeal is fully satisfied that the appellant has shown that it had suffered a miscarriage of justice by such late delivery of judgment. Further the fact that in determining whether a miscarriage of justice has occasioned due to inordinate delay, the emphasis is not the length of time simplicities, but on the effect it produced in the mind of the court, such as if the delay is found to have obviously alleged the court’s perception, appreciation and evaluation of the cases and that it is court would readily interfere.

In view of the foregoing I find it appropriate to resort to the provisions of the relevant subsections of S. 294 of the 1999 Constitution of the Federal Republic of Nigeria.

“S. 294 (1). Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.

(5) The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.

(6) As soon as possible after hearing and deciding a case in which it has been determined or observed that there was non-compliance with the provisions of subsection (1) of this section, the person presiding at the sitting of the court shall send a report on the case to the Chairman of the National Judicial who shall keep the Council informed of such action as the Council may deem fit.”

The true position of the law, in the light of the foregoing provision, is that a party should not just go on appeal merely on the ground that the judgment he wants to set aside was delivered outside the three months (90 days) period. He will have to fight the appeal on all known grounds of appeal which can render the judgment unsustainable; not merely on the assessment of facts. Indeed, an appellant with good grounds of appeal may have no need at all to canvass a ground of non-compliance with the 90 days, except for the purpose of having the judge (or justice) disciplined by drawing attending of the breach to the Court hearing the appeal in view of subsection (6) of the Section 294 of the 1999 Constitution (formerly subsection (5) of Section 258 of the 1979 Constitution. See OWOYEMI v. ADEKOYA (2003) 12 SC. (Pt. 1) 1.

The delay perse does not lead to a judgment being vitiated or nullified. The delay must occasion a miscarriage of justice to in such a conclusion. In other words it has to be established that the delay occasioned a miscarriage of justice in that the trial judge did not take a proper advantage of having seen or heard the witnesses to, testify or that he had lost his impressions of the trial due to such inordinate delay. See AKPAN v. UMOH (1999) 7 SC. (Pt. II) 13.

I do not agree with the submission of the learned counsel for the appellants that the delay of the lower court in delivery of its judgment affected the Courts’ “perception, appreciation and evaluation of the case” or that the delay has eroded the conference in the entire judicial system. The reasons for my so held are not farfetched. Careful study of the provisions of S. 294 of the Constitution will show that they apply more particularly to judgments of the trial courts. In those courts the trial judge who, after seeing and hearing the testimonies of witnesses, inordinately delays the delivery of his judgment for such a long time that from the judgment it becomes apparent that he has lost touch or grasp of the evidence led; and could also have forgotten the demeanour of the witnesses who testified before him thus leading to a miscarriage of justice. In the circumstance as opposed to the Appellate Court which duties are limited to reviewing the case of trial court and the judgment which followed, based on printed records only and written briefs of Argument of the parties and in some cases oral amplifications of such briefs which are recorded in writing. The Appellate Courts in these circumstances can rarely be said to have lost touch of the contents of the printed records placed before them, which could be said to have affected their perception and evaluation of the facts based on the printed records of the facts based on the printed records of appeal only.

My third reason is thus. The learned justices of the court below did not, after finding that the learned trial judge was in error to have held that the native court proceedings and judgment in Exhibit “C” was res judicata, turn around to hold that same constituted res judicata, due to the inordinate delay in delivering their final judgment. Rather, I must observe, what the Justices did was to hold that the proceedings and judgment in Exhibit “C” was conclusive of facts (as stated in the testimonies of witnesses) forming the ground for the judgment. Put simply, that the facts which led to the judgment which was appealed against constitutes issue estoppels as distinct from res judicata which robs the Court of jurisdiction to entertain the case at all.

On this issue, the appellants have also argued that failure on the part of the presiding Justice at the Court of Appeal to send a report on the delay in delivery of his final judgment to the Chairman of the National Judicial Council as provided in subsection (6) of S. 294 (supra) even if the said delay did not occasion any miscarriage of justice to the appellant, renders the judgment of the Court of Appeal null and void. This argument is with due respect, preposterous and just a cent-worth as it is technical and misconceived. The requirement that “a person presiding at the sitting of the court to send a report on the case to the Chairman of the National judicial Council” in which judgment was delivered outside 90 days, so that he could inform the council to take such action as it may deem fit, is a purely administrative provision meant to notify the council, which in the circumstance of a particular, may deem it necessary to take any disciplinary action against Judges who flagrantly “or inordinately” refuse to comply with the provision of this section of the Constitution. The council does not have the power to declare a judgment of the Appellate Courts established under the Constitution, indeed the Court of Appeal null and void for failure of the presiding judge who delivered the judgment to send a report thereafter to NJC. Failure to inform the NJC cannot form a ground of appeal against the judgment since the report is not meant to form part of the judgment. Indeed of the appellants’ 4 Grounds of appeal none deals directly with or complains about the failure to send an Administrative Report to NJC. It is an issue I need not seriously consider as the learned counsel for the Appellants only merely relied on the submissions of their counsel in his brief of Argument to urge this Court to declare the judgment of the Court of Appeal null and void.

In the light of the foregoing I shall resolve this issue in favour of the respondent as no form of miscarriage of justice has been shown from the records to have been suffered by the appellants. On issue No.2, is the contention of the Appellants that the learned Justices of the Court of Appeal fell into grave error in relying on Exhibit ‘C’ as res judicata when they held that the judgment in exhibit ‘C’ is conclusive of the facts forming the grounds for the judgment.

We know what is “res judicata” Simply put it arises where a court of competent jurisdiction had earlier adjudicated upon an issue the same comes up again between the same parties or their privies. See FADIORA v. GBADEBO (1978) 3 SC. 29, LADEGA v. DUROSIMI (1978) 3 SC. 64. In a long line of cases it has been decided judicata is not available to a plaintiff as basis of his claim except by way of a reply to a defence raised by the Defendant in a statement of defence. A plaintiff cannot be seen raising a plea that will oust the jurisdiction of the court to entertain the action he has brought before that court. As it is often said. It is a shield rather than a sword. See IKE v. UGBOAJA (1993) 6 NWLR (pt. 321) 539.

However, in the case at hand contrary to the foregoing contention of the Appellants, I agree with the learned counsel for the Respondents that the court below never, at any time found that the judgment in Exhibit “C” was res judicata. It found on page 320 of the record of appeal thus:

“The judgment in Exhibit “C” was not appealed against up to the time of 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.”

In other words that certain facts which were accepted by the Native Court (Clan Court) therein, constituted issue estoppels and which facts constitute issue estoppels were clearly pleaded by the Respondent on pages 53 – 54 (lines 15 – 17) of the record of appeal, as follows:

“15. In Odian Clan Court Civil case No. 57/50 Obi Osenwokwu Versus Okonkwo Mgbokole, the first plaintiff’s father sued the plaintiffs, Eastern Ibo tenants for arrears of rent as tenants in the farm land.

(a). One Chief Okada 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’ fore-grand 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 plaintiff keeps one man called Isaac Anene in the land. We called the plaintiffs attention and asked him why he allows an Eastern Ibomen to come and carried all monies in the 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 Plaintiff will at the trial found on the said Odiani Clan Court suits and particularly rely on the testimonies of the deceased witnesses.”

It is trite law that estoppels need not be pleaded in any special form, provided that the facts which can be interpreted as constituting estoppels are stated in such a way that estoppels is raised, and this has been clearly done by the respondents herein. See MBONU v. NWOTI (1991) 7 NWLR (pt. 206) page 737; IKENI v. EFAMO (2001) 5 SC. (pt.1) 160; IBERO v. UME-OHANA (1993) 2 NWLR (pt 227) 510.

With profound respect to the learned counsel for the appellants, it is not correct to argue that the court below made a case of issue estoppel for the respondents and proceeded to pronounce on same unilaterally. Issues on that fact had been joined in the pleading of parties. See SPACO VEHICLE and PLANT HIRE CO. v. ALRAIME (NIG.) LTD (1995) 8 NWLR (Pt. 416) 655 at 670 -671, ALAO v. ACB LTD (1998) 3 NWLR (pt. 542) 339 at 369 -370, OSHODI v. EYIFUNMI (2000) 13 NWLR (pt. 684) 298; (2000) 7 SC (pt. 2) 145 D. T. I. ENT. (NIG.) LTD v. BUSARI (2011) ALL FWLR (Pt. 563) 1818 at 1846 – 1847.

I am overwhelmed by the glib or facile further submissions of the learned counsel for the respondents on the issue in paragraph 4.02 of the respondent’s brief of argument. This is a direct response to the submission made by the learned counsel for the Appellants in paragraph 5.2 of their brief, on the reliance of the principle of law that res judicata is used as a shield, (a defence) and not as a sword, and that it is anomalous for the plaintiff who has invoked the jurisdiction of the court by raising it as it is done by the respondents in this case. Learned counsel for the respondents rightly conceded to the principle as stated. It does not apply to the case in hand. The reasons are simple. In the instant case there are two actions in which declaration of the title was sought: one by the appellants herein, as plaintiffs suing the respondent as defendants. On the other hand the action for the same claim by the respondents as defendants. Therefore, the respondents were perfectly right and entitled to rely on the plea of res judicata in their defence in the suit against them by the appellants. The appellants are not disputing these facts.

What is irksome in this case is the way the appellants have strenuously argued that the issue of res judicata does not avail the respondents as plaintiffs. That Exhibit “C” in suit No 74/50 does not constituted a plea of issue of estoppel was clearly pleaded. Therefore, even if this plea did not meet all the conditions to constitute res judicata, I agree with the respondents that, it would at least constitute a plea of issue estoppel in respect of the issue that the entire Ebu Community, including their Star Witness, Chief Okoda from the present appellants’ Usebe Quarters or village of Ebu Community, claimed and led evidence that the land originally belonged to the said entire Ebu Community. It was after that the community sold the land out rightly to the respondents’ ancestor. This fact was accepted by the court below in its judgment in Exhibit ‘C’, thus barring the appellants herein, who are only one set out of the nine villages that make up Ebu Community to raise the same issue, claiming now that their Usebe Village were the original owners of the said land.

The appellants have extensively addressed the Court on this issue, drawing a distinction between res judicata and issue estoppel on pages 184 to 185 and also canvassed in the respective briefs of argument of the parties on appeal on pages 266 to 269 to 285 of the record. This was a live issue presented before the trial court and the Court of Appeal for determination. With due respect, the contention of the appellants’ counsel that this was a new issue introduced at the trial court and raised by the Court of Appeal suo motu, is based on mere technicality , barren and lacks sustainability. Again, issue 2 and 3 are resolved in favour of the respondents.

In the final result all the issues having been resolved in favour of the respondents, the appeal is dismissed. However, in the circumstance of this case, I shall not award costs in favour of the respondents in the spirit and promotion of brotherhood and good neighbourliness amongst the parties.

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SC.102/2005