Ibero & Anor V. Ume-Ohana (1993)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C.

The two appellants as plaintiffs in the High Court of the former East Central State holden at Orlu brought an action against one Obioha Ume-Ohana claiming a declaration of title to land called Ala Elugwu, said to be situate at Osina, N2,000.00 damages for trespass to the said land, and an order of injunction restraining the defendant, his servants, agents or any person claiming through him from further trespass on the said land. The defendant was later substituted for the original defendant when the latter died.

Plaintiffs’ case before the trial court was that they were owners of the land in dispute as delineated in Plan No. SE/EC/13/75 (Exh. A). They supported their case with the traditional history connecting the land in dispute and with various acts of possession and ownership. The defendant, they maintained, was from Akokwa. According to them, the traditional boundary between Osina and Akokwa was an Ekpe ditch, an ancient trench dug several centuries ago by the Osina people as a rampart to protect themselves from their warlike neighbours, the Akokwa people and which both communities had respected ever since.

They pointed out that even in their plan, Exh. G., (Plan No. MEC/266/75) the defendant’s people recognized this ditch but claimed that it was inside Akokwa land as a line of defence. No Akokwa man had land across the Ekpe ditch, they maintained. In exercise of their right over the land on the Osina side of the ditch, the Osina people in the Mbanasa Native Court Suit No. 115/49 sued Umuezeahunanya people of Akokwa for trespass over “Ala Ihonwoma” land on Ezi – the side of Osina and succeeded against them up to the Supreme Court. When in 1974, they stated, the defendant crossed over to Osina side of the “Ekpe” ditch, destroyed economic trees and crops and built a house the plaintiffs brought this action.

The defendant’s case is that he hails from Ikpa kindred of Umukekwu village, Akokwa and that the land in dispute is a portion of their land known as “Uhu-Ehihioke” more clearly delineated in Plan No. MEC/266/75 (Exh. G.). The Ekpe ditch, he claimed was only a line of defence dug inside Akokwa land whereas the boundary between Akokwa and Osina was a line of life trees. They pleaded res judicata based on two consolidated Mbanasa Native Court Suits – Nos. 153/47 and 2/48. Through a series of appeals before the District Officer (Exh. K.) the Resident (Exhs. L & M), the Deputy Governor, Eastern Nigeria (Exh. O) the defendants were successful. They also tendered a superimposed plan, Exh. H which shows the lands litigated upon in those suits.

After hearing and addresses by counsel on both sides, the learned trial Judge, Ugoagwu J., found for the plaintiffs and entered judgment on their behalf. He found that while the traditional evidence and acts of possession relied upon by the plaintiffs and accepted by him amply supported their case, the defendant failed to establish the plea of res judicata which they relied upon. On appeal, the Court of Appeal found that the parties in the previous suits were the same with the instant case and reversed the decision.

The learned Justices of the Court of Appeal having found that the parties in the previous suit (Exh. K) were the same with the instant case came to the conclusion that it was not necessary to consider whether the issues and the subject matter in the two cases were the same because” res Judicata is, as a plea, a bar; as evidence, it is conclusive – see Yoye v. Olubode (1974) 10 S.C. 209, at 220 and the fact that the other grounds (3 and 4 based as they are on the other defences) automatically abate.” The appeal was consequently allowed, the decision of the High Court set aside.

The plaintiffs have, therefore, appealed to this Court, with the leave of the Court of Appeal. They filed three grounds of appeal which read as follows: GROUNDS OF APPEAL:

1. The learned Justices of the Court of Appeal erred in law and in fact in holding that the plea of res Judicata availed the defendant.

Particulars of Error

Contrary to the findings of the Court of Appeal, exhibits ‘J’, ‘K’, ‘L’, ‘M’, ‘N’, and ‘O’ did not show that the parties were the same as, or, privies to, the parties in the action herein.

(b) Having regard to the state of the law, it was incumbent on the defendant to produce in evidence the whole proceedings in the said exhibits aforementioned before a court of law could possibly come to the conclusion that the parties were the same or privies.

(c) In the absence of such evidence the Court of Appeal ought not to have inferred that the parties were the same or that they were privies.

(d) The Court of Appeal was wrong in relying on evidence extrinsic to the aforementioned exhibits in coming to the conclusion that the plea of res judicata was sustained.

2. The learned Justices of the Court of Appeal erred in law in relying on exhibit ‘8’ as helping to sustain the plea of res judicata against the plaintiffs when exhibit ‘B’ was a judgment in which the findings made therein were in favour of the plaintiffs’ case.
3. The learned Justices of the Court of Appeal erred in law in failing to consider the other factors relevant to establishing a plea of res judicata, namely; whether the subject matter of the claim, and, the issues, are the same before allowing the appeal.

Particulars of Error