Engr. Samuel Melifonwu V. Chief Alexander Ilukwe Egbunike & Ors. (2000)

LawGlobal-Hub Lead Judgment Report

TOBI, J.C.A.

By a motion dated 6th April, 1994, the appellant asked for the amendment of paragraph 10 of the statement of claim in order to introduce a plan prepared for the plaintiff by the Survey-General:

“(i) Introduce a plan prepared for the plaintiff by the Surveyor-General of Anambra State using plan No. MEC/403A/67 as shown on the land physically and showing the exact location of the appellant’s house that was destroyed and looted.

(ii) Plead and establish that in another suit, suit No. 0/358/83 taken out by one Nnamdi Iwenofu against the respondents, in which a plan No. MEC/2774/83 was tendered, that the said Nnamdi Iwenofu won the case when the respondents settled with him and paid him. That this land and property for which the respondents paid was located in the Isiokwe land as that of the appellant.

(iii) Emphasise that the issue in the suit was not one of boundary which had been determined but of actual trespass and destruction of the appellant’s property within the Isiokwe land.”

The motion was supported by an affidavit of 24 paragraphs. The respondent filed a counter-affidavit of 11 paragraphs which he named “Affidavit of Ben Ntephe in opposition to the Motion for Amendment.” After hearing counsel on both sides, the learned trial Judge refused the motion. He said at page 61 of the record:

“I am of the considered view that in all the facts averred in the affidavit of Mr. Ben Ntephe in opposition to the motion on notice for leave to amend plaintiff’s pleadings, applicant’s current application must be refused and is hereby refused for the reasons set out specifically in paragraphs 5, 6, 7, 8, 9 and 10 of Mr. Ntephe’s affidavit aforesaid. I am satisfied that the issue sought to be canvassed in the application of the plaintiff raises the issue of Res Judicata and Issue Estoppel- including its doctrine of standing by against plaintiff in the suit. In stating as I do, I am not unmindful of the fact that the issue of ownership of Owelle-Ebo land was fully conveyed and delivered in Suit Nos. 0/28/72 – SC/11/82, suit No. 0/107/85 and suit No. 461/85 between the Umuezearoli family and the Isiokwe family of Onitsha. It is my considered view that for the foregoing reasons the current application of the plaintiff seeking an order of this court for leave to amend paragraph 10 of plaintiff/applicant’s statement of claim is hereby refused. The motion is accordingly dismissed.”

Dissatisfied with the ruling, the appellant filed an appeal in this court. He filed his brief on 15th May, 1998. The respondents did not file their brief. By a motion dated 1st February, 1999 and filed on 5th February, 1999, this court ordered that the appeal be heard on the appellant’s brief. The appellant filed the following single issue for determination:

“Was the decision of the learned trial Judge in dismissing the application by the applicant for leave to amend paragraph 10 of his statement of claim a proper exercise of discretion at the stage of the proceedings when it was done on the purported ground of res judicata?”

Learned counsel for the appellant, Mr. A. O. Amene submitted that trial and appellate courts have the power to grant leave to amend pleadings. Although it is a subject of judicial discretion which must be exercised judicially and judiciously, the principles have been so well established and settled by many court decisions of both the Court of Appeal and the Supreme Court, learned counsel contended. He cited Alhaji Laguro and Another v. Toku (Bale of Itoga) and Another (1992) 2 NWLR (Pt. 223) 278; Jessica Trading Co. Ltd. v. Bendel Insurance Co. Ltd. (1993) 1 NWLR (Pt. 271) 538 and Anie v. Ugagbe (1995) 6 NWLR (PT. 402) 425.

On res judicata, learned counsel maintained that it is settled law that for a plea to arise three factors must be present: (i) the parties in the earlier case must be the same. This includes privies in law; (ii) the subject matter of the two suits must be the same; (iii) the issues in the previous case and those in the action must also be the same. He cited Alhaji Oloriegbe v. Omotesho (1993) 1 NWLR (Pt.270) 386 and Effiong v. Ironbar (2000) 3 NWLR (pt.650) 545 at 555.

Where a defendant by a motion prays the court to dismiss the plaintiff’s action in limine on the ground that the matter is res judicata, what the court is to determine at that stage is not whether the plaintiff could succeed in any or all of his claims against the defendant but whether there have been previous decisions of courts of competent jurisdiction in respect of the subject matter now in dispute which would bar the plaintiff from raising his present claims, learned counsel contended. He cited once again Oloriegbe v. Omotesho (supra).

Learned counsel posited that a party who raises the plea of res judicata must show that (i) the instant suit seeks to raise a new question or questions already finally and validly decided (or implicit in such a decision) by a court of competent jurisdiction; (ii) the decision in the previous suit was between the same parties or their privies (or conclusive in rem); (iii) the decision in the previous suit was in respect of the same subject matter and on the same issue. Learned counsel submitted that once it is found that all the three conditions co-exist the question in litigation is caught by estoppel per rem judicatam and that will be the end of the matter.

When an issue of res judicata is raised by the defence in limine consideration will be limited, where the previous case was decided in a court where pleadings were filed, to the pleadings and the judgment in that previous case will be compared with the pleadings in the case in hand, counsel submitted, he cited Ibero and Another v. Ume Ohana (1993) 2 NWLR (pt.277) 510. Learned counsel repeated himself on the issue of res judicata at pages 11, 12, 13 and 14 of his brief. I do not think I can afford to repeat the arguments here.