Ikeni V Chief William Akuma Efamo (2001)

LAWGLOBAL HUB Lead Judgment Report

AYOOLA, J.S.C. 

This appeal arose from the decision of the High Court of the Rivers State (Ndu, J) by which judgment was entered for the present respondents (then and now referred to as “the plaintiffs”) against the present appellants (then and now referred to as “the defendants”) in the following terms:

“1. A declaration is hereby made to the effect that the plaintiffs herein. (i.e. the Ekoni family of Opume or Opomatobo) are entitled to the customary right of occupancy in respect of the land known as EDUMATA EMENI alias “EDUMAYO” adjudged In their favour by the Oloribiri Native Court in Suits Nos. 17/58 and 18/58 respectively which land is delineated and verged RED on Survey Plan No. BOE/R17/90-LD (Exhibit – P5) dated 19th November 1990.

2. A declaration is hereby made that all the issues already decided relating to the original settlement of Edumata Emeni alias “Edumayo” land by the Oloibiri Native Court in cases Nos. 17/58 and 18/58 are binding on both the plaintiffs and the defendants in this present action.
3. The defendants, i.e. the Ake and Ogidi families of Akipelai their privies, servants and agents, are hereby restrained by an order of perpetual injunction from interfering with the rights of the plaintiffs to the scope and extent already recognized and adjudged in their favour by the Oloibiri Native Court in suits Nos. 17/58 and 18/58 as shown and verged RED on Survey Plan No.BOE/R17/90 – LD dated 19th November 1990 (Exhibit-P5)”

That court also dismissed the defendants’ counter claim. The defendants not being satisfied with the decision, appealed to the Court of Appeal which in a unanimous decision dismissed their appeal and confirmed the decision of the High Court.

The plaintiffs’ claim was substantially in terms of the declaration granted them by the High Court. The suit was apparently, to render more certain the identity of the subject-matter of the judgments in their favour granting them title to the lands claimed by them as against the defendants in actions instituted by them in the Oloibiri Native Court, suit. 17/58 (Exhibit P3) and 18/58 (Exhibits P4), (“the Native Court suits”). They had sought to do this by obtaining declarations of right to customary right of occupancy based on ownership of the land litigated upon in those suits tied to a plan.

The High Court held that by virtue of the judgment in those suits the defendants were estopped from re-opening the issues of title that have been determined in those suits and struck out the paragraphs in the defendants’ pleadings relating to their title. As against the defendants’ counter-claim he held that the plea of res Judicata was rightly raised. The Court of Appeal upheld that decision.

On this appeal it seems to me to be common ground that the plaintiffs did obtain judgments in their favour in the Native Court suits. There is no challenge by the defendants to the finding that the parties, issues and subject-matter in the Native Court suits are the same as in the present suit, or that the judgments in those suits. being valid, final and subsisting, were capable of sustaining a plea of res Judicata. What the defendants, however, contend is that those decisions could not now be used as res judicata because of the decision in a latter suit, whereby the title of the plaintiffs were relitigated and pronounced upon. The latter suit was No. DHC/14/78 which culminated in a judgment of this court (Exhibit D6) in appeal No. SC 151/1987. In the latter suit the plaintiffs had claimed among other things a declaration that, “they as persons adjudged in 2 Oloibiri Native Court Suits Nos. 17/58 and 18/58 owners and/or owners in possession of the land known as ‘EDUMATA-EMENI’ alias ‘EDUMAYO’, are entitled to all monies due from and payable by 2nd defendants as compensation for 2nd defendants’ user, structures, loss of fishing rights and/or occupation of, and their operations on and/or in EDUMATA-EMENI land aforesaid …

The defendants’ case on this appeal is encapsulated in the two issues for determination formulated by the defendants as follows:

“(a) whether the concurrent finding of the lower court on the plea of res judicata is perverse (grounds 1 and 2)

(b) whether the concurrent finding of the lower court dismissing the counter-claim is perverse.”

It is manifest, having regard to the issues thus formulated, that the decisive question is whether the decision of this court (Exhibit D6) in Chief Uriah Akpana Adomba & Ors v. Benjamin Odiese & Ors. SC 151/1987 (reported in (1990) 1 NWLR (pt.125) 165 (“the compensation case”) raises an estoppel against the plaintiffs from re-litigating the issue of title to the land.

To put that question in proper perspective, it is convenient to distinguish between cause of action estoppel even though both are species of res judicata estoppel. For cause of action estoppel to arise the cause of action in the latter proceedings must be identical with the cause of action in the earlier proceedings. When a defence of cause of action estoppel is raised the defence connotes that the legal rights and obligations of the parties in respect of the subject-matter of the action are conclusively or deemed to have been conclusively determined by the earlier action. Cause of action estoppel requires identity not only of subject matter but also of parties and issues in the latter and earlier proceedings.

However, where a plea of cause of action estoppel cannot be raised because the causes of action in the two proceedings are not the same. a party can still plead that the other party is precluded from contending the contrary of any precise point; provided that the point in question

(i) has been distinctly put in issue and