Ihenacho & Ors V. Egbula & Ors (2021)

LAWGLOBAL HUB Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.S.C.

This is an appeal against the decision of the Court of Appeal Port Harcourt Division delivered by Coram J. O. Ogebe, J.C.A., S.A. Nsofor, J.C.A. and A. J. Ikongbeh, J.C.A. on 27/12/2001 wherein the Court of Appeal unanimously affirmed the judgment of the High Court of Justice Imo State, holden at Owerri. The facts that led to this appeal are as follows:

In 1975, the appellants who were the plaintiffs at the High Court had a dispute with the respondents over landed property delineated in plan No. JJ. 38/63 (p. 192 at 35) in which they claim belongs to Ehihie and as descendants of Ehihie they had title to that piece of land. They gave the history of how the land devolved on them through their ancestor Ehihe. The respondents who were the defendants, at the High Court pleaded estoppel per rem judicata, evidencing the judgment of their predecessors in title as regards the instant land in dispute and urged the Court to dismiss the suit. The trial Court, while it upheld the defence of res judicata also considered the entirety of the case on the merit and dismissed the claim of the appellants. The Court of Appeal affirmed the judgment of the trial Court. Dissatisfied with the judgment of the lower Court, the appellant filed this appeal.

I will commence by dealing with the preliminary objection raised by counsel for the respondents regarding the competence of the notice of appeal filed by the appellants before dealing with the crux of the appeal.

The respondents in their brief have raised a notice of preliminary objection on pg. 3 par. 3.0 therein challenging the hearing of this appeal on the grounds that:

a. The notice of appeal was filed out of time rendering the appeal incompetent.

b. The notice of appeal contains issues of mixed law and facts which were raised without the leave of this Court or the lower Court.

On the first head of objection, learned respondents’ counsel in the brief settled by S.C. Imo Esq., submitted that the judgment of the Court of Appeal which is being challenged by this appeal was delivered on the 27th day of November, 2001. The notice of appeal upon which this appeal is founded was filed on the 26th February, 2002. By the computation of time, the 90 (Ninety) days within which the appellants must file his notice of appeal expires on the 25th February, 2002. Counsel insisted that the notice of appeal in this appeal was therefore filed out of time and without the requisite leave of this Court and therefore urged this Court to strike out this appeal for being incompetent. Counsel cited Madam Oni Amudipe v. Chief Ogunleye Arijodi (1978) 9 & 10 SC @ 27.

The appellants submitted that contrary to the respondents’ view in their amended brief that the appellants had 90 days within which to file their notice of appeal, Section 27(2)(a) of the Supreme Court Act, 1960 (Cap. S.15) prescribes three months for persons desirous of appealing against the final decisions of the Court of Appeal to file their notice of appeal. He urged the Court to hold that the time within which notice of appeal is to be given by persons desirous of appealing to the Supreme Court against the final decision of the Court below is three months and not 90 days.

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Thus, while the respondents’ counsel is claiming that the time to appeal is 90 days which means the notice of appeal should have been filed on 25/2/2002. Counsel also argued that by S.15(4) of the Interpretation Act, public holidays are excluded from computation of time. He cited Mustapha Adenekan v. Alh. Ajayi & Ors (1998) 8 NWLR (Pt. 562) pg.472 at 479.

My Lords, in resolving the first head of objection, it is to be noted there is no ambiguity that this civil appeal is against the decision of the lower Court. The procedure for the commencement of an appeal in this Court in civil causes like the instant appeal is as prescribed by the Supreme Court Act. By Section 27(2)(a) of the Supreme Court Act (Cap. S15, LFN 2004), the applicant was supposed to appeal within three months of the judgment delivered on 27/11/01. By the provision of the Act, the Supreme Court may extend the period prescribed for filing an appeal. The Supreme Court Rules 1999 in Order 2 Rule 31 prescribed conditions to be followed in bringing an application for extension of time within which to appeal.

It is important to state here that according to Section 15(2)(a) of the Interpretation Act Cap. 123 L.F.N. 2004 which provides as follows:

A reference in an enactment to a period of days shall be construed.

(a) where the period is reckoned from a particular event as excluding the day on which the event occurs. This provision was given credence and applied by this Court in Akeredolu & Ors. v. Lasisi Akinremi (1985) 2 NWLR (Pt. 10) pg. 787 and the Court unanimously came to the conclusion that in computing the period of the filing of the appeal, the date 10th April, 1985 in which the Court of Appeal delivered the judgment must be excluded. See also the recent authority of this Court in Petgas Resources v. Mbanefo (2018) 1 NWLR (Pt. 1601) pg. 442.

It seems to me that Petgas v. Mbanefo (supra) and a plethora of earlier authorities have settled the issue that once a notice of appeal is filed outside the time prescribed by law, it is incompetent for all purposes and the Court is devoid of procedural jurisdiction in the matter.

In this case at hand, the judgment of the Court of Appeal was delivered on 27/11/2001 and notice of appeal was filed by the appellants on 26/2/2002.

In Akeredolu & Ors. v. Lasisi Akinremi (1985) 2 NSCC pg. 1283, (1985) 2 NWLR (Pt. 10) 787 the Justices of the Supreme Court went into lengthy explanation on this issue. In that case G.O.K. Ajayi, SAN had argued that the time to appeal was 3 calendar months in accordance with S.31(2) of the Supreme Court Act and that a judgment delivered on 10/4/1985 must be appealed against by 9/7/1985. Chief F.R.A. Williams argued that the time to appeal should expire on 10/7/1985 and he had filed the notice of appeal on the said 10/7/1985.

My Lord Aniagolu, J.S.C. who wrote the lead judgment explained this issue as follows on pg. 1287 of the NSCC law report:

“The term used is “three months” and not “three calender months” as in Migotti v. Colvill (supra). And so, the interpretation applied in Migoth v. Corvia which all the lord Justices in the case agreed was a technical one, must be strictly restricted to the phrase “three calendar months” and not applied to the situation in the Supreme Court Act 1960, in which the term “three months” is used. It is however, true that in Section 18(1) of the Interpretation Act 1964, the term “month” is defined as “a calendar month” reckoned according to the Gregorian Calendar, and Gregorian Calendar is the correction of the Julian Calendar made in 1582 by Pope Gregory XIII. (See 5th Ed. The Concise Oxford Dictionary page 540). But, by Section 15(2) (a) of the Interpretation Act 1964:

“A reference in an enactment to a period of days shall be construed:

(a) where the period is reckoned from a particular event, as excluding the day on which the event occurs;”

It would follow that in computing the period for the filing of the appeal in this matter the date – 10th April 1985 on which the Court of Appeal delivered its judgment must be excluded. The calculation thus begins on 11th April, 1985 and three months from hence must end at midnight of 10th July, 1985. The one day by which Mr. Ajayi has said the appellants were out of time becomes the one day which by Section 15(2) of the Interpretation Act 1964, must be excluded in the computation, on the footing, that the appeal was filed on 10th July, 1985. The principle of this exclusion of the day of the happening of the event has become a principle of general acceptance. Maxwell on Interpretation of statutes 12 Ed. page 309, citing Lester v. Garland (1808) 15 Yes. 248 and Re North ex parte Hasluck (supra), has it thus:

“Where a statutory period runs “from” a named date “to” another, or the statute prescribes some period of days or weeks or months or years within which some act has to be done, although the computation of the period must in every case depend on the intention of parliament as gathered from the statute, generally the first day of the period will be excluded from the reckoning, and consequently the last day will be included.”

For the foregoing reasons, I would accept the contention of Chief Williams that the appeal was not filed out of time. Accordingly, the preliminary objection is not well founded, and is therefore hereby overruled.

My Lord Eso, J.S.C. also stated thus at pg. 1291 of the NSCC Law Report: “Sub-section of S.31 of the Supreme Court Act stipulates “days” while part of sub-section stipulates months. The question is why “days” in one sub-section and months in the other. “Month” has been defined to mean “a calendar month reckoned according to the Gregorian calendar.” The next question is – how is the Gregorian calendar reckoned? A Nursery Rhyme makes it sound simple –

“Thirty days hath September, April, June and November, All the rest have thirty one, Except February alone.”

And so the Gregorian calendar month is reckoned in days. In the Encyclopaedia Britanica “Gregorian Calendar” having been defined ends thus. “For the computation of the Gregorian Calendar, see Calendar”, “Calendar” in the Encyclopaedia Britanica states the twelve lunar months and adds

“Of these Martins Mains, Quintitus and October had each 31 days, the rest 29, save Februarius which had 28”.

One thing is important whether by the Nursery Rhyme or the Encyclopaedia Britanica, Gregorian calendar is computed in days. The learned judge Denman J. in Migotti v. Colvill and the learned Justices in the Court of Appeal (England) though the sentence being considered was in “months computed it in days. So also in the other cases which I have earlier referred to. Whenever there was reference to a period of months or years the actual numerical computation is done in days.

The use of the words “three months” therefore in S.31(2)(a) of the Supreme Court Act could not but indicate days, the number of the days in the month depending on which month. I am therefore of the firm view that the “period of days” referred to in the Interpretation Act 1964 must necessary include the use of the word “months” in an enactment.

For these reasons, and the reasons so well stated in the ruling of my learned brother, Aniagolu, J.S.C., I will also overrule the preliminary objection.”

My Lord Nnamani, J.S.C. held at pg. 1292 of the NSCC Law Report:

“Although the period stipulated in Section 31(2)(a) of the Supreme Court Act 1960 is in months not days, I am in agreement with Chief Williams submission that every period of 3 months is a period of days. The period in this appeal is reckoned from a particular event – the day the Court of Appeal delivered its judgment i.e 10th April, 1985.

The preliminary objection must therefore fail. No order as to costs.”

My Lord Oputa, J.S.C. at Pg. 1297-1298 of the NSCC Law Report held as follows:

“The question of whether the day on which the act is done, is to be included or excluded from the computation of time must in the final analysis depend on whether it is to the benefit or disadvantage of the person primarily interested. See Marren v. Dawson Bentley & Co. Ltd. (1961) 2 Q.B. 135 at p.138. In the recent case of Dodds v. Walker (1981) 2 All E.R. 609, it was held that in calculating the period of a month or a specified number of months that had elapsed the occurrence of a specified event, such as the giving of a notice (here the filing of an application for leave to appeal) the general rule is that the period ended on the corresponding date in the appropriate subsequent month. Thus a period of “within three months” from 10th April, 1985 will end on the 10th July, 1985. This accords with Section 15 (2)(a) of our Interpretation Act No. 1 of 1964 which stipulates, that:-

2. A reference in an enactment to a period of days shall be construed –

(a) where the period is reckoned from a particular event, as excluding the day on which the event occurs”.

Mr. Ajayi’s argument that the date of the delivery of the judgment is to be included in the computation of the 3 months period appears to be in founded.”

Therefore, in that case, the Supreme Court held that in computing three months, the day the judgment was delivered must be excluded as a principle of general acceptance in accordance with S.15(2)(a) of the Interpretation Act, 1964 (Now S.15(2)(a) of the Interpretation Act, 2004).

The Supreme Court held that in the judgment delivered on 10/4/1985, the calculation should start from 11/4/1985 and three months must end midnight of 10/7/1985. By the interpretation of the Supreme Court in that case, the number of days would be 91 instead of 90 days. So, the Supreme Court calculated in months and not days.

In Petgas Resources Ltd. v. Mbanefo (supra), this Court held that the appellant had 3 months to file its notice of appeal from the judgment of the Court of Appeal delivered on 3/5/2006 and that the last day or date for the appellant to exercise its right of appeal was the midnight of 3/8/2006. This Court also held that as general rule barring specific legislation challenging the provisions of the Interpretation Act in that regard, the date of the event from which the calculation must commence is normally excluded from the reckoning, and consequently, the last day is included. In this case under review, the judgment of the Court of Appeal was delivered on 27/11/2001 and the notice of appeal was filed on 26/2/2002. Clearly, the appellants filed the notice of appeal within the time stipulated by the Act. Even if the period is calculated in days, it is within 90 days. However as stated in Akeredolu & Ors. v. Lasisi Akinremi (supra), the period should be calculated in months to arrive at the intendment of the legislature. Therefore, in this appeal, the notice of appeal is competent and the first head of objection is overruled. There was no need for the appellants to apply for extension of time to appeal. Therefore that head of objection is overruled.

The second head of objection challenged the competence of ground 1 of the notice of appeal, urging the Court to strike out same. The respondents submitted that this ground raises a question of mixed law and facts and therefore offends the provision of Section 233 of the 1999 Constitution, having been filed without the leave of the Court of Appeal or the Supreme Court. Accordingly, respondents’ counsel argued that this Court lacks jurisdiction to entertain this ground of appeal.

a. The 2 ground raise questions of fact or at best issues of mixed law and facts.

b. Both grounds 2 and 3 are raised for the first time on appeal without the leave of this Court. Both grounds are therefore incompetent and should be struck out. Counsel cited Ayoola v. Ogunjimi (1964) N.S.C.C. pg. 134 at 136.

The appellants submitted that the issue raised in ground 1 of the notice of appeal is about the correct interpretation of the law on whether a judgment obtained against persons in their personal capacity can bind the community under the doctrine of estoppel per rem judicata. Counsel argued that clearly, ground 1 of the notice of appeal raises an issue of law. Learned appellants’ counsel further submitted that application of the law to facts already proved and admitted is a question of law. Counsel cited Ogundele & Anor v. Agiri & Anor. (2009) 12 S.C. (Pt. 135) at pg. 150, (2009) 18 NWLR (PT. 1172) 219.

In response to the respondents’ contention that grounds 2 and 3 of the notice of appeal raises questions of mixed fact and law, appellants submitted that the complaint in ground 2 of the notice of appeal is the failure of the Court of Appeal to apply Section 46 of the Evidence Act to the admitted facts on record and the findings of the Court of Appeal confirming the finding of the High Court.

Counsel submitted further that ground 3 complains about the misapplication of the law to the facts already proved. Appellant’s counsel submitted that the objections raised to ground 1, 2, and 3 are misconceived and should be dismissed as these grounds can be raised for the first time in this Court being grounds challenging the judgment of the Court of Appeal.

Opinion on the objection

My Lords, on the second head of objection set out herein let me restate the grounds of appeal as detailed by the appellants in their notice of appeal, with their particulars as it is better to consider the particulars, which would give us a better understanding of the complaints in the notice of appeal and how to categorise them:

1. The learned justices of the Court of Appeal misdirected themselves in law when they held that in suit no. HOW/86/63, the Umunguzo people were clearly parties to that suit and therefore the judgment in suit no. HOW/86/63, Exhibit L is res judicata against the plaintiffs/appellants;

Particulars of misdirection

I. A correct legal interpretation of the judgment in suit no: HOW/86/63 Exhibit L is that the said judgment is not binding on the plaintiffs/appellants in the present suit.

II. The judgment in suit no: HOW/86/63 Exhibit L being a judgment in personal capacity cannot bind the plaintiffs/appellants herein in the representative capacity.

III. In law, personal capacity and representative capacity are treated as different, legal parties.

2. The learned Justices of the Court of Appeal misdirected themselves in law in failing to observe that the plaintiffs/appellants established their ownership of the land in dispute, under Section 46 of Evidence Act.

Particulars of misdirection

i. The respondent through DW1, Pius Oparaugo admitted that the lands in dispute has boundaries with lands belonging to appellants’ relations.

ii. The learned trial Judge found that most of the boundary neighbours of the land in dispute are relations of the plaintiffs with whom they have a common ancestor Enime.

iii. The Court of Appeal agreed with the findings of the High Court.

iv. The finding of lower Court lends credence to the appellants’ case under Section 46 of Evidence Act.

3. The Court of Appeal misdirected themselves in law when they confirmed the finding of the trial Court of the issues of recent possession of the land in dispute.

Particulars of misdirection

i. The Court of Appeal failed to observe that the learned trial judge misapplied the principles of law enunciated in Kojo II v. Bonsie (1957) 1 W.L.R. Pg. 1223.

ii. The findings of the trial Court confirmed by the Court of Appeal supports the appellants’ case in that the appellants’ relations are the boundary neighbours of the land in dispute.

iii. The failure of the defendants/respondents to call boundary neighbours is fatal to their case under Section 149 of the Evidence Act.

iv. Further grounds will be filed and leave to argue them sought when the record of appeal is obtained.

My Lords, it is trite that there is a clear distinction between ground(s) of law, ground(s) of facts and ground(s) of mixed law and facts. In Njemanze v. Njemanze (2013) LPELR-19885 (SC) (pg. 16-19, paras. C-B), (2013) 8 NWLR (Pt. 1356) 376, the Supreme Court gave a clear distinction between these grounds of law when Suleiman Galadima, J.S.C. held lucidly and admirably as follows:

“This Court, for quite long has set out some of the criteria for distinguishing a ground of law from that at mixed law and fact. Some of these principles can be summarized in the following manner:

(i) First is the thorough examination of the grounds of appeal in the case to see whether they reveal a misunderstanding by the lower Court of the law, or a misapplication of the law to the facts already proved or admitted.

(ii) Where ground complains of a misunderstanding by the lower Court of the law or misapplication of the law to the facts already proved or admitted, it is a ground of law.

(iii) Where a ground of appeal questions the evaluation of facts before the application of the law, it is ground of mixed law and fact.

(iv) A ground which raises a question of pure fact is a ground of fact.

(v) Where the lower Court finds that the particular event occurred although there is no admissible evidence before the Court that the event did infact occur, the ground is that of law.

(vi) Where admissible evidence has been led, the assessment of that evidence is entirely for the Court. If there is a complaint about the assessment of the admissible evidence, the ground, is that of fact.

(vii) Where the lower Court approached the Constitution of a legal term of art in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, the ground is that of law.

(viii) Where the lower Court or Tribunal applying the law to the facts in a process which requires the skill of a trained lawyer, this is a question of law.

(ix) Where the lower Court reaches a conclusion which cannot reasonably be drawn from the facts as found, the appeal Court will assume that there has been misconception of the law.

This is a ground of law.

(x) Where the conclusion of the lower Court is one of possible resolutions but one which the appeal Court would not have reached if seized of the issue, that conclusion is not an error in law.

(xi) Where the Court of Appeal finds such application to be wrong and decides to make its own findings such findings made by the Court of Appeal are issues of fact and not of law.

(xii) Where the Court of Appeal interferes in such a case and there is a further appeal to a higher Court of Appeal on the application of the facts, the grounds of appeal alleging such misdirection by the lower Court of Appeal is ground of law not of fact.

(xiii) A ground of appeal which complains that the decision of the trial Court is against evidence or weight of evidence or contains unresolved contradictions in the evidence of witnesses, it is purely a ground of fact (which requires leave for an appeal to, a Court of Appeal or a further Court of Appeal).”

In the determination of the grounds of appeal, the Court in most cases refers to the particulars if there are particulars. This will enable the Court to have a full view of the ground of appeal and come to a conclusion whether it is a ground of law or one of mixed law and facts or facts simplicita. This is because the tag name of the ground of law by the appellants does not necessarily make it so.

In Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484, the Court held as follows:

“There is no doubt that it is always difficult to distinguish a ground of law from a grounds of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower Tribunal of the law or misapplication of the law to the facts already proved or admitted in which case, it would be question of law or one that would required questioning the evaluation of facts by the lower Tribunal before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure facts is easier to determine. See further Opuiyo & Ors. v. Omonwari & Anor (2007) 16 NWLR (Pt. 1060) 415; or (2007) 6 SC (Pt.1) (35); A.C.B. Plc v. Obmiami Brick Stone (1993) 5 NWLR (Pt. 294) 399 or (1993) 6 SCNJ 98; Ajayi & Anor v. Omorogbe (1993) 7 SCNJ 168.”

My Lords, on this head of objection, ground 1 of the grounds of appeal on a close examination is a ground of law because it is a complaint against the misapplication of the law by the learned Justice of the Court below to the facts as proved by the parties.

It is whether res judicata is applicable to make HOW/86/63 exhibit which is binding on the appellants herein. It is a ground of law.

In respect of ground 2, it is a complaint against the lower Court’s interpretation of the established facts in relation to S.46 of the Evidence Act. That in my view is a ground of law.

In respect of ground 3, it is a complaint that the rule of law in Kojo II v. Bonsie (supra) was not properly applied to the circumstances and facts of this case. It is my view that it is also a ground of law. All the grounds of appeal conform with the provisions of Section 233(2)(a) of the 1999 Constitution (as altered).

In the circumstances, I am of the view that there is no merit at all in both heads of objection and they are hereby overruled.

My Lords, I will now consider the appeal on the merits. The appellants in their amended statement of claim at trial had asked for the following reliefs:

(i) Declaration of title to the piece, and portions of land usually known as and called Ububagulshi Nwodorogu verged green in the plaintiff’s plan including that part of Uhu Umunguzo land verged brown in the said plan, situate and Iying at Umunguzo Umuokocha Umuehihe Uzoagbalkeduru within the Owerri Judicial Division.

(ii) N800.00 (Eight Hundred Naira) being damages for trespass to the said land.

(iii) An injunction permanently restraining the defendants, their servants and agents from further trespassing upon the said land.

At trial, the learned trial Judge Hon. Justice L.C. Alionor having heard the evidence of the parties on merit dismissed the plaintiff’s (appellant’s) case in its entirety, awarding cost of N1,500.00 to the defendants (respondents). On the issue of res judicata, the trial Court held that the land in dispute is a smaller parcel of land which forms part of the larger parcel of land that was earlier adjudicated on by a Court of competent jurisdiction between privies of the same party. The learned trial Judge held that the privies of the parties are same as the parties in the previous suit HOW/86/63 and relied on the judgment of Oputa JSC in Adesina Oke & Ors v. Shittu Atoloye & Ors (1986) 1 NWLR (Pt 15) Pg. 241.

The plaintiffs as appellants being dissatisfied with the judgment of the trial Court filed a notice of appeal at the Court of Appeal, Port Harcourt Division where the appellants in their brief raised two issues for determination as follows:

1. Whether the plea of res judicata was in law established by the respondents.
2. Did the appellant not prove their root of title through traditional history on preponderance of evidence.

The respondents in their brief raised two issues for the determination of the appeal as follows:

1. Whether the lower Court was wrong in holding that the defences of Estoppel Per Rem Judicatam and Issues Estoppel was established by the respondents so as to preclude the appellants from re-opening the issues raised and determined by a Court of competent jurisdiction in the 1963 case in relation to the said land in dispute by the same parties or their privies.
2. Whether the trial Court was wrong in holding that on the totality of the evidence, the appellants’ case at the trial Court ought to have been dismissed.

The lower Court determined the appeal and resolved both issues against the appellants. On issue one, the lower Court held that the principle of res judicata will apply in this case. The lower Court held as follows on Pg.3 of its judgment: “it is clear that Amunobi Ofurum who had represented the appellants in suit no. HOW/123/62 and HOW/124/63 which suits were eventually abandoned because of civil war was party to suit no. HOW/86/63 which the respondents were relying on as constituting res judicata and PW1 admitted that ”it is the same land that is being disputed in the present case.”

The lower Court agreed entirely with the conclusions of the trial Court. On issue two, the lower Court held that if the finding of the learned trial Judge is analyzed, the evidence in respect of the traditional history of both parties is that both evidence is inconclusive and that the trial Court correctly applied the doctrine of recent possession.

The appellants still dissatisfied with the findings of the two lower Courts has further appealed to this Court via a notice of appeal dated 25th day of February, 2002. At the hearing of the appeal, the appellants relied on the amended notice of appeal on which issues were settled in the briefs of counsel adopted for the determination of this appeal.

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The appellants in their brief settled by Emmanuel Idemudua Oboh, Esq., Oyetuga Olugbenga Joseph, Esq., Abdulharnls’ Motolanl Odebiyi, Esq., identified two issues for determination.

Similarly, worded issues were distilled by learned respondents’ counsel A.O. Emeharaole, Esq., and S.C. Imo, Esq. I will adopt the issues as distilled by the learned appellants’ counsel as set out below:

1. Whether the judgment in suit no. HOW86/63 (Exhibit 1) estops the plaintiffs/appellants as res judicata. Ground 1
2. Whether the Court of Appeal was right in holding that the pleading and the evidence adduced by the plaintiffs/appellants were totally unsatisfactory to establish a claim for declaration of title. Grounds 2 & 3.

Issue One

Learned appellants’ counsel argued that the suit no. HOW/86/63 tendered as Exhibit L during the trial showed clearly that the judgment in that case was in favour of the present respondents but against some of the present appellants in their personal capacity. Counsel argued that it is trite law that privity in the sense that a party is bound by the judgment given against another and vice versa normally connotes identity of successive interest. It follows that mere blood relationship does not ipso facto constitute interest. Counsel submitted that Exhibit L relied on by the Court of Appeal cannot estop the appellants herein under the doctrine of res judicata. In this present case, the appellants are prosecuting in their representative capacity and that the law regards the earlier personal capacity and the later representative capacity as different. Learned appellants’ counsel insisted that parties in the suit that led to this appeal were the representatives of the two communities of Umunguzo and Umuezekom and it was the said representative capacity of the suit that was made out although from the trial Court to the Supreme Court. Counsel argued that the central issue in Exhibit L, is loosely speaking, who, between Umuezekom Community represented by the respondents, and appellants (personally) was the owner of the land, but the requisite issue in the suit that led to this appeal, is who, between the two communities, owned the land in dispute by traditional inheritance. Learned appellants’ counsel cited Ezeanya v. Okeke (1995) 4 NWLR (Pt. 388) pg. 142 at 162; Polution v. Adjustable Cover & Boiler (1908) 2 CH.D 43 at 440; Bwacha v. Ikenya (2011) 14 WRN (Pt. 1) at pg. 21-22, (2011) 3 NWLR (Pt. 1235) 610; Ikena v. Efamo (2001) 10 NWLR (Pt. 720) pg. 15; Ekpoke v. Usilo (1978) 6-7 SC pg. 187; Eje v. lgiliegbo & Ors. (1952) 14 WACA Pg. 61, Oragbaide v. Chief Onitiju (1962) NSCC pg. 16, (1962) 1 SCNLR 70.

Learned respondents’ counsel argued in rebuttal that the appellants were within the class of persons sued in a representative capacity (represented by their accredited representative or agent, one Anunobi Ofurum amongst other persons within the appellants’ family in Umunguzo as well as the other persons in two other families making Umuokocha Kindred).

Counsel pointed out that the respondents relied on res judicata in their pleadings at trial and that in proof of these averments in their statement of defence called two witnesses DW1 & DW2, who testified and tendered the following documents: The judgment in HOW/86/63 is Exhibit L, the survey plan, Exhibit M, and Exhibit H, the dispute plan in suit HOW/119/75 and also Exhibit K -statement of claim in suit no. HOW/124/63 filed by the appellants’ family in a cross-action in respect of same land against the respondents. Counsel argued that the case in HOW/86/63 was initiated and fought all through in a representative capacity, without the defendants therein applying to be discharged from the representative order until judgment was delivered against the representatives of the defendants which included the appellants in this case.

Counsel further submitted that assuming without conceding that the judgment was a personal judgment as contended by the appellants, there was evidence which was accepted by the trial Court and admitted by appellants that they were aware of the pendency of suit no. HOW/86/63 and the subject in issue and the matter in contest but chose not to intervene or defend the suit in any capacity at all. They are therefore bound by that judgment and estopped from relitigating the issue by the doctrine of estoppel. Respondents’ counsel cited Ogbogu v. Ndiribe (1992) 6 NWLR (Pt. 245) pg. 40 at 61 SC; Omoloye v. Attorney General of Oyo State (1987) 4 NWLR (Pt. 64) pg. 267 at 284; Ogundiani v. Araba & Anor (1978) 6-7 SC pg. 55 at 81; Obodo v. Ogba & Ors. (1988) 1 QLRN at 175 per Oputa, JSC pgs. 185-186, (1987) 2 NWLR (Pt. 54) 1. Counsel argued that there is no compelling reason to set aside concurrent findings of fact of the two lower Courts. Opinion.

My Lords, it is important to note that inspite of holding that res judicata applied, the trial Court still tried the case on the merit. My Lords, I need to give an overall perspective of this appeal. The two communities herein, the Umunguzo community of Umuawuku Umuokocha, Urnuihihie and the Umuezekom community of Amata have been disputing over boundaries since 1944 in suit no. 97/44. There was another suit No. 247/58 – Exhibit B in this case and suit no. How/86/63 – Exhibit L in this case. Lastly there was suit no. HOW/119/75. The respondents in this appeal claimed res judicata in suit no. HOW/119/75, the suit which led to this appeal and argued that the decision in the earlier suit no. HOW/86/63, Exhibit L is binding on all parties and that the issue of the land should not be religated. The claim of the appellants herein is a declaration of right of occupancy over the parcels of land in dispute namely Ububagu Isi Nwandorogu land and part of Uhu Umungoso land delineated in Exhibit A of the survey plan.

On their part, the respondents called the same disputed land Egbelu Isi Nkporo Umuezekom and claimed that several prior litigations had resulted in the denial of the appellants, the ownership of the land in dispute. Thus, the parties in this appeal share the same boundaries and have been litigating the issue of trespass between them for decades.

At the trial Court in upholding the defence of res judicata, the learned trial Judge held as follows on pg. 190-191 of the record:

“Thus in suit no. HOW/86/63, the Umunguzo people were clearly parties to that suit. The only reason by which a person is made a party to an action is that he should be bound by the result of the action and the question to be settled cannot be completely and effectually, settled unless such person or body is made a party. See Akin Ojo v. Yisa Oseni & Anor (1987) 4 NWLR (Pt 66) 622 CA. Thus, in order to determined (sic) the title to the land in dispute in HOW/86/63, the plaintiffs in the present suit who are component part of the defendants in HOW/86/63 were made parties and I hold that they were parties and necessary parties in suit no. HOW/86/63. Moreover, they stood by while others fought their battle in the same capacity. On why they did not intervene in suit no. HOW/86/63, the plaintiffs said that they were interested in their suits HOW/123/63 and HOW/124/63 and not in suits not instituted by them that is HOW/86/63. As was cited with approval in Omoloye v. Attorney General of Oyo State (1987) 4 NWLR (Pt. 64) 267 at 284:

“for the purpose of estoppel per rem judicatam, a ‘party’ means not only a person named as such, but also … one who, being cognisant of the proceedings and of the fact that a party thereto is professing to act in his interests allows his battle to be fought by that party, intending to take the benefit of the championship in the event of success.”

Again in Ogundiani v. Araba & Anor. (1978) 6-7 SC 55 at 81. Idigbe JSC emphasized the principle governing the circumstances of the instant case thus:

“The principle relied upon for this doctrine (estoppel) is that any interested person who is cognizant of the proceedings and has the opportunity to intervene is bound by the result and cannot be allowed to re-open the matter.

Accordingly, if one knowing what was going on, was content to stand by and see his battle fought by someone else in the same interest, then he ought to be bound by the result.”

The learned justices of the Court of Appeal also held as follows on pg. 264 to pg.265 of the record on the issue of res judicata:

“At page 138 of the record, PW1 the 1st appellant said that it was true that, in 1963 the defendants sued Umuokocha people in respect of the land in dispute.

At page 139 the witness under examination said thus:

“Amuobi Ofurum represented Umunguzo Community in Ikeduru nation Court suits which were later transferred to Owerri as HOW/123/63 and HOW/124/63. It is true that Amunobi Oforum is from Umunguzo Community. It is true that the Court gave personal judgment to the plaintiff in HOW/86/63 who are now the defendants in the present suit HOW/119/75. It is the same land the subject of HOW/86/63 that is now in dispute in the present suit HOW/119/75. Nobody appealed against the judgment of the Court in HOW/86/63 because the Umunguzo people were not parties to that suit. We were not interested in joining in another suit in which other persons were defendants. We were interested in pursuing our suits against the defendants in the present suit. I did not applied to be joined in suit HOW/86/63 because it was proper to join as a defendant with those defendants who had no interest in that subject land. It is no true that the judgment in HOW/86/63 effected all the land now in disputed (sic)”.

From the above passage, it is clear that Amunobi Ofurum who had represented the appellants in suit no. HOW/123/62 and HOW/124/63 which suits were eventually abandoned because of civil war was a party to suit no. HOW/86/63 which the respondents were relying on as constituting res judicata and PW1 admitted in the same land that is being disputed in the present case.

The trial Court made specific finding on the issue of res judicata and held at page 190 of the records as follows:

Now the plaintiffs in the present suit HOW/119/75 have argued that they were not parties in suit no: HOW/86/63 because the defendants in the HOW/86/63 were Umuokocha people which of course they form part of. If I accept their contention that would be against the trend of evidence in this case. There is no merit in this argument that because the larger community was sued, therefore the smaller community forming part of the larger community will not be a party to the suit. Moreover, a representative of the Umunguzo community one Anunobi Ofurum was sued by himself and as representing people of Unuokocha. Anunobi Ofurum put up a defence in HOW/86/63 as could be seen from the judgment Exh. ‘L’ thus:

“The 4th defendant (that is Anunobi Ofurum) in his defence admitted entering this land in dispute and brushing part of it. He said that the area he brushed was their own land.” (underlined by me to show that he offered defence for the people he represented). Thus in suit no. HOW/86/63, the I Umunguzo people were clearly parties to that suit.”

I agree entirely with the conclusion of the trial Court. I see no merit in this issue.”

My Lords, this Court held in Ekpoke v. Usifo (1978) 6-7 SC pg. 187 at 199 that the test whether a previous case and the present case are the same, would be whether it is the same evidence that would be required to resolve the issue in controversy. In this case, it is clear that it is the same evidence that both parties relied on in 1963 that they relied on in 1975.

In Adesina Oke & Ors. v. Shittu Atoloye & Ors. supra, this Court held as follows:

“A judgment in personam is a judgment inter parties. It is really a judgment against persons who are parties or privies to the particular proceedings and distinguished from a judgment “a thins” or “a right” or “status”. In a land case, parties can plead all sorts of estoppels because a judgment in personam is necessarily a personal obligation binding on parties and their privies.”

My Lords, it is clear that both lower Courts considered the facts and the issue of estoppel thoroughly. By law it is the duty of respondents who asserted and seek to rely on this special defense of estoppel as a shield against litigation to call witnesses and prove same in line with their pleadings and to succeed on the plea of res judicata, the following conditions must be present in the judgment relied upon:

(a) The parties in the previous action must be same in the fresh action or their privies.

(b) The issue litigated upon in the previous action must be same as that of the fresh action.

(c) There must exist a judgment of a Court of competent jurisdiction which is final. See Dzungwe v. Gbishe (1985) 2 NWLR (Pt. 8) Pg. 528; Nwokafor v. Udegbe (1963) 1 SCNLR Pg. 184.

I agree that in this case the respondents adduced pre-ponderance of evidence to prove their defence. I am persuaded that the appellants should not be allowed to relitigate this subject matter. They were parties to the 1963 case, one of them fought the case in his personal capacity but representing his family over the same land and adduced the same evidence which the appellants brought forward in the suit which is the basis for this appeal. The appellants are caught by the equitable legal maxim of standing by. The appellants stood by and allowed a single person to fight the family interest which he lost in suit HOW/86/63. After the appellants saw that their privy lost the case, they sought to relitigate the same land in HOW/119/1975 after the civil war. There must be an end to litigation. The judgment in HOW/86/63 was delivered on 22/2/68. In HOW/86/63 the plaintiffs had brought the action in a representative capacity as the people of Umuokocha in Uzuoagba also in Owerri Division.

On pg. 215 of the record, the learned trial Judge in HOW/86/63 held as follows:

“The defendants did not find it necessary to prepare a plan showing the true position of the land in dispute or the area they allege to be their own. A plan agreed by both parties to be a copy used in the 1944 case was tendered by the defendants by consent.

It is clear that from this 1944 plan and plan tendered by the plaintiffs that the land plaintiffs are now claiming is north of the land disputed in the 1944 case; (compare Exhibits ‘A’ and ‘F’), in the 1944 case the plaintiffs claimed up to “Douglas Road”, and boundary was made between them and people Umuokecha people. The defendants are all of Umuokecha. The defendants put the pillars along the boundary and some of their people later cross over it to farm and were sued by the plaintiffs’ people and won.

It seems to me in this case that the plaintiffs have given boundaries of the land they claim and given evidence of acts of ownership – farming on the land and cutting economic trees from them to entitle them to judgment.

On the preponderance of evidence, it is in their favour. Although (sic) the defendants case is extremely, weak it is for the plaintiffs to prove the case in other words to lead enough evidence to warrant the granting of the relief claimed.

I am satisfied the plaintiffs led-enough evidence to warrant declaration of title in their favour.”

The trial Court in HOW/86/63 concluded as follows:-

“I grant the plaintiffs’ declaration of title in respect of the piece and parcel of land known and called Egbelu-lsinkporo as delineated in plan No. JJ.38/63 filed by the plaintiffs in their action.”

I hold that the appellants are bound by the delineation of boundaries set out by that judgment. As I said earlier there must be an end to litigation. This issue is resolved against the appellants.

Issue Two

The complaint of the appellants on this issue is that since the parties did not quarrel or join issues on the manner in which their two separate ancestors first owned the lands, the trial Court should not have expressed lack of satisfaction with the said traditional histories of both parties.

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The convoluted arguments of counsel on this issue is completely misconceived. In one breath, counsel argued that the appropriate decision of the trial Court ought to have been that parties each had a conclusive traditional history, and then proceeded to decide who owned the land in dispute by reference to acts of recent possession of parties on the land. Counsel insisted that it is contrary to the law for the trial Court to have held, and for the Court below to have affirmed the said decision, that ownership of the land, based on what looks like acts of recent possession of parties belonged to the respondents when the same Court had held that parties traditional histories were each inconclusive.

In another breath, counsel argued that the lower Court did not properly follow Kojo II v. Bonsie (supra) as it held that the acts of recent possession were proved by the respondents. Appellants’ counsel argued that the fact that boundary neighbours in the land in dispute are relations of the appellants should have persuaded the lower Courts to find in favour of the appellants in accordance with S.46 of the Evidence Act since one of their witnesses made an admission against their interest. Learned respondent’s counsel in reply argued that one of the ways of proving ownership of land in either of five ways as enunciated by this Court as Idundun v. Okumagba (1976) 9-10 SC 227. In this case, apart from relying heavily on traditional history adduced by oral evidences, the appellant relied on acts of ownership and acts of recent possession in accordance with Section 145 of the Evidence Act. Learned counsel argued that S.45 of the Evidence Act raises a presumption of fact which is rebuttable and has been adequately rebutted by the respondent in Exh. L, M & D.

0Counsel argued that the evidence of the appellants on these issues by PW1 materially conflicted with that of PW2 and PW3. See pages 128-145.

The appellants also failed to prove how and from whom they inherited the land in dispute and how it was founded and the particulars of their ancestors from whom the land devolved to them. The contention of the appellant that the principle of law enunciated in Kojo II v. Bonsie (1957) 1 WLR 1223 was misapplied in the circumstance is totally misconceived.

Opinion

My Lords, why the judge of trial Court found that neither of the traditional histories of parties was conclusive was that neither of them pleaded and proved how their ancestors originally settled on the disputed land. They had each pleaded and proved their individual ancestors first owned the land without stating how their said individual ancestors owned the land. The said state of pleadings of parties made the trial Judge pose some questions his own judgment as it related especially to the pleadings of the appellants on how their Ehihie first settled on the land. In the words of the trial judge at pg. 181 of the record, referred to by the Court below in its own judgment at page 5 of the said judgment:

“From the evidence of PW1, the land is dispute was originally owned by Ehihie. Was he the person that deforested it and appropriated it by acts of ownership.

Alternatively, did he acquire it by conquest. It is enough to state that Ehihie was originally the owner.

The plaintiffs should lead evidence on how he came to own the land….”

The respondents too had also only pleaded that their progenitor Ezekom first owned the land without stating how the said ancestor came to own same. This was evident in paragraph 4 of their joint defence at pg. 22 of the record.

The state of the law regarding the test established in Kojo II v. Bonsie (supra) is that the rule in Kojo II v. Bonsie applies when there is conflict in traditional evidence of the parties. The Court has to resolve the conflict by testing recent history concerning acts of ownership and possession in deciding whose traditional evidence is more plausible. See Iwurie Iheanacho & Ors. v. Mathias Chigere & Ors. (2004) 7 SCNJ pg. 272, (2004) 17 NWLR (Pt. 901) 130. Thus, Kojo II v. Bonsie is applicable when the evidence of both parties are in conflict or inconclusive. See Oba Yekini Elegushi & Ors. v. Sarata Oseni & Ors. (2005) 7 SCNJ pg. 416, (2005) 14 NWLR (Pt. 945) 348. The issue of conflict in evidence of traditional history exists where there is admissible, reliable and credible evidence from both sides that conflict with each other only. See Chief Okoko v. Mark Dakolo (2006) 7 SCNJ Pg. 284, (2006) 14 NWLR (Pt. 1000) 401. Thus, for the rule in Kojo II v. Bonsie to be applicable, there must be conflict in traditional history of both parties, and the evidence of both sides must not suffer from any material defect. See Chief Okoko v. Mark Dakolo (supra).

In Taiwo & Ors. v. Ogundele & Ors. (2012) 15 NWLR (Pt.1322) P.57, my Lord Rhodes-Vivour, JSC on the rule in Kojo II v. Bonsie held as follows:

“The Rule in Kojo II v. Bonsie supra was explained by the Privy Council in these words: “The dispute was all as to the traditional history which had been handed down by word of mouth from their forefathers. In this regard, it must be recognized that, in the course of transmission from generation to generation, mistakes may occur without any dishonest motives whatever. Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. Where there is a conflict of traditional history, one side or the other must be mistaken yet both may be honest in their belief. In such a case demeanour is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is more probable.” The Rule in Kojo II v. Bonsie supra has been followed by this Court in cases where traditional history is relied on in a case. See Agedegudu v. Ajenifuja (1963) 1 All N.L.R p.109, (1963) 1 SCNLR 305; Iriri v. Erhurhobara (1991) 2 NWLR (Pt. 173) p. 252; Ogbuokwelu v. Umeanafunkwa (1994) 4 NWLR (Pt.341) p.676. Where the traditional history of both parties are in conflict which usually is the case, but the trial Judge is able to resolve the conflicts there would be no need to resort to the Rule in Kojo II v. Bonsie supra. Where on the other hand, the traditional History are in conflict and each has much weight, i.e. they both appear reliable and probable, it would then be the duty of the judge to resolve the impasse by reference to facts in recent years by compelling evidence. The rule is only applicable in a case where traditional evidence is inconclusive.”

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The learned trial Judge had to resort to the rule in Kojo II v. Bonsie to resolve the impasse in the evidence and on a proper consideration of the evidence held that the appellants proved less recent acts of possession than the respondents.

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My Lords, I am of the view that the lower Court was right in affirming the judgment of the trial Court in its finding that the various acts of recent possession proved by the respondents were more credible than that of the appellants and refused the declarations sought by the appellants.

In the circumstance, not only is there estoppel against the appellants in that they are bound by the judgment in that they are bound by the judgment in HOW/86/63 and the boundaries delineated therein moreover, on the merit, the appellants also failed to prove their entitlement to the reliefs and declarations sought. There is no merit in this appeal and it is hereby dismissed.

The judgment of the Court of Appeal delivered on 27/11/01 in CA/PH/19/1997 is hereby affirmed. Appeal dismissed. No order as to costs.

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SC.232/2002