Eyibodogha Egoro And Ors V Komani And Ors (1968)

LawGlobal-Hub Lead Judgment Report

LEWIS, J.S.C.

This was an appeal from the ruling of Prest, Acting J. (as he then was) on the 10th November, 1965 in the Warri High Court, in regard to two actions, W/97/1956 and W/122/1956, which had been consolidated for hearing before him. In Suit No. W/97/1956 the present appellants were plaintiffs and claimed against the present respondents as defendants jointly and severally:-

“1. A declaration of title to that piece of land known as” KPAKIAMA TUOR”

2. £5,000 being damages for trespass to the said land possessed and owned by the plaintiffs and the malicious destruction thereon of economic crops, to wit, yams, coco yams, ground nuts, pepper, sugar cane, sweet potatoes, corn and beans.

3. An injunction to restrain the defendants, their servants or agents from any further acts of trespass or damage on the said land.”,

whilst in Suit W/122/1956, the present respondents were plaintiffs and claimed against the present appellants as defendants:-

“(a) Jointly and severally the sum of £400 being damages for trespass for in that the defendants in or about May, 1956 trespassed in to the Plaintiffs’ fishing pond known as “Benitiengha” and thereafter fished the said pond and have continued to fish the same pond.

“(b) An order of injunction restraining the defendants their servants and or their agents from further entering the said Benitiengha pond for fishing or other purposes without the consent of plaintiff first obtained”,

In Suit W/97/1956 the respondents pleaded res judicata in respect of the claim in their statement of defence and when the consolidated actions came for hear-ing k was agreed by counsel for both parties that the preliminary issue should first be dealt with by the learned trial judge, namely as to the plea of res judicata raised by the defendants in Suit W/97/1956. This plea in fact applied to an area of land which was also claimed by the respondents in Suit W/122/56 in which they were the plaintiffs, though it also embraced a more extended area. The respondents in W/122/1956, in addition, claimed a quite separate area called Lake Bintaya. The respondents relied for their plea of res judicata upon the judgment on appeal in Suit 321.53 in the Western Ijaw Court of Appeal on 22nd August, 1953, from the decision of the Akugbene District Court dismissing a claim by Komani and Agbedi on behalf of Bomadi against Okili, lyebodongha and Atie, in which the plain-tiffs’ claim read:-

“Plaintiffs representing the people of Bomadi seek a declaration of title to ownership of island situated in the neighbourhood of Bomadi and known as Kpasatuo.”

Only the plaintiff as appellants appeared before the Western Ijaw Court of Appeal and that court gave judgment in the following terms:-

“Appeal upheld, and below court judgment set aside. This court enters judgments for plaintiff for the whole of Igbasatuo land. This land has its boundary at the spot of the cotton tree standing in the centre of two other cotton trees.”

When, however, the preliminary issue was argued before Prest, Acting J., counsel for the plaintiffs, produced evidence which, despite objection, was admitted, sowing that the decision by the Western Ijaw Court of Appeal of the 22nd Au-gust, 1953, to which we have referred was not final as some four years later the court records show the matter was re-opened as the record for the 27th July, 1957, read:-

“An application for reopening by the people of Kpakiama. This is an appeal suit (C/S) No. 31/53 heard on 22/8/53. See file No. W.I.D.C. of 1NI/57-59 for original application made out by Kpakiama solicitor, on their behalf, addressed to the Local Government Adviser, Western Ijaw Division. Letter dated 23/7/57. The original letter was minuted to the Court President by the Local Government Adviser for consideration.