Kalu Njoku & Ors V Ukwu Eme & Ors

LawGlobal-Hub Lead Judgment Report

DAN IBEKWE, AG. J.S.C

This is an appeal against the judgment of Allagoa, J., in Suit No. HU/96/61 delivered on 30th November, 1966 at the Umuahia High Court, dismissing the claims of the plaintiffs, herein appellants. The writ of summons is endorsed as follows:-

1. The Plaintiff’s claim against the Defendants is for:

(a) Declaration of title to the parcels or pieces of land known as and called “Orua Ndi Uke” (including Abo Ukwu land) “Iyi Arunsi” (hereinafter called the said land) situate in Amangwu Ohafia, Bende Division, Owerri Province. The annual rent value is 5pounds.

(b) An injunction to restrain the Defendants, their heirs, agents and servants from further unauthorised entry upon the said land.

(c) 20pounds damages for trespass upon the said land.

It will be seen from the above claim that the land which forms the subject matter of the dispute is comprised of three parcels of land known as “Orua Ndi Uke:, “Abo Ukwu” and “Iyi Arunsi”, situate in Amangwu Ohafia Bende Division, Owerri Province.

Put in a nutshell, the plaintiffs’ case is that these parcels of land in dispute belong to them as the descendents of their maternal ancestors – the “Ume Nne Ibuo” Family. It is part of their case that they and the defendants do not have a common maternal ancestry, and that the respondents in fact, belong to an entirely different maternal line known as the “Umu Ikwu Mgbo”.

The plaintiffs’ traditional history is to the effect that they, as owners of the three parcels of land in dispute had remained in possession of them until the defendants purported to confiscate the said lands because a member of the plaintiffs’ family named Obunka murdered one Kalu Akwu, a member of the defendants’ family. Later, in compliance with “Native Law and Custom” there was an atonement as a result of which the lands reverted to the plaintiffs. As against this story, the defendants maintain that they enjoy a common maternal origin with the plaintiffs. According to the defendants’ story, the dispute arose in the time of Obua Nka and Kalu Aja over the distribution of farming strips which led to the partition of the land in dispute between the two families. The defendants also relied on a plea of res judicata.

At this stage, we think it is appropriate to set out the relevant paragraphs of the Amended Statement of Claim as follows:-

2. “The Defendants are farmers from Ngodo Amaekpu Ohafia Bende Division of “Umu Ikwu Mgbo” family and are sued jointly and severally in their personal capacity.
3. The “parcels of land in dispute” – “Iyi Arunsi” “Orua Ndi Uke” and “Abo Ukwu” have been owned by the Plaintiff’s family “UMU NNE IBUO” from time immemorial and have since used the same for farming purposes.
4. “Heads of the plaintiffs’ maternal family, “UMU NNE IBUO” held these parcels of land in dispute” successively for the other members of the family until the time of Obunka who murdered Kalu Akwu, a member of the Defendants’ family, and thereupon” these parcels of land in dispute were temporarily confiscated by Ifiaku (then head of the Defendants’ maternal family) pending the “Igwa Ochu”, atonement – of the murder of the Plaintiffs’ family before the parcels of land in dispute could be recovered by the Plaintiffs.
5. According to the Native Custom, the Igwa Ochu entailed the surrender of another human being for the burial rights of the deceased, by the family of the murderer. Obua Nka surrendered a slave for the Igwa Ochu, paid 20pounds for ‘Ituha Nma’ sheathing of sword, and finally atoned to Ifia-akwu for the murder of Kalu Akwu.
6. Therefore the said parcels of land in dispute reverted to the original owners, the Plaintiffs’ family without any reservations. But many years after when English Missionaries made their advent into Amangwu some presumptuous members of the 1st defendant family began to use the old wrong inflicted by a member of the Plaintiffs’ family on a member of the Defendants’ family as an excuse for interfering with the plaintiffs’ use of the parcels of land in dispute.
7. The plaintiffs and the defendants do not belong to the same maternal ancestry, Umunne Ibuo, and do not own the parcels of the land in dispute in common with the defendants’ family. The defendants have no ground for claiming ownership of the parcels of the land in dispute than that they belong to the same maternal ancestry as the plaintiffs.”

In the relevant paragraphs of their Statement of Defence, the defendants for their part averred as follows:-

3. “The Defendants admit in respect of paragraph 2 of the Statement of Claim being farmers living at Ngodo Amaekpu Ohafia; but say that they are not of the maternal family of “Umu Ikwu Mgbo” a fictitious name unknown to the defendants; rather the Defendants say that they are of the maternal family of “Umu Nne Ibuo” like the Plaintiff’s but of a different house separate from the Plaintiff’s House since the time of Obu Nka, Plaintiff’s predecessor and Kalu Aja, Defendants’ predecessor both of whom belonged to “Ume Nne Ibuo” maternal family.
4. The Defendants deny paragraphs 7 to 11 of the Statement of Claim in which the Plaintiff avers the traditional story of his family in connection with his claim in respect of these three parcels of land, the subject matter of this action.
5. In further answer to paragraphs 7 to 11 of the Statement of Claim the Defendants say they and the Plaintiff are of the same maternal family of UMU NNE IBUO and from the time of their maternal uncle Okpuali Uke until the time of Kalu Aja, Defendants’ predecessor and Obu Nka the Plaintiff’s predecessor and when a dispute arose over the distribution of farming strips in all lands in the family.

Thereupon the family divided into two Houses and so also all the family parcels of land were divided, and since then the Defendants have always exercised maximum rights of ownership over those portions of UMU NNE IBUO family land allotted to them like IYI ARUNSI, ORUA NDI UKE AND ABO UKWU.”

At the trial, both parties called evidence in support of their respective claims. Both parties employed the services of the same surveyor Mr. J.T. John. The plaintiffs’ plan was marked Ex. ‘A’ and the defendants’ plan Ex. ‘B’. In addition, the defendants put in evidence Ex. ‘C’ the proceedings and judgment in Ohafia Native Court Civil Suit No. 223/33 in which the plaintiffs in the present action sued the 1st defendant for declaration of title over Orua Ndi Uke, and the court awarded the plaintiffs the portion of Oru Ndi Uke verged Orange, and also awarded to the Defendants that portion verged Green as per the defendants’ plan, Ex. ‘B’.

At the conclusion of the trial the learned trial Judge in dismissing the plaintiffs’ claim held as follows:-

“On the case as a whole I find that the Plaintiffs’ evidence in support of their claim does not warrant making a declaration in their favour.”

It is against this decision that the plaintiffs now appealed to this court.

The six grounds of appeal read as follows:-

“(1) Misdirection: That the learned trial Judge misdirected himself in the following passages of the judgment. 2nd Plaintiff admitted under cross examination that the area to the east of the motor road ………….. This means that the Plaintiffs have not disclosed the whole Orua Ndi Uke for which declaration of title is sought.” “This is a serious misdirection in that the trial Judge did not understand that the area involved in the claim before him was the area verged Pink in Exhibit ‘A’ – a misdirection which influenced him to dismiss Appellants’ claim.

(2) Non direction: The learned trial Judge failed to direct his mind to the evidence and consequently failed to make a finding as to what is the correct location of the Old Road as referred to in Exhibit A, B & C in of the conflicting evidence of both parties in this behalf.

(3) The learned trial Judge failed to observe that three distinct pieces of land were claimed and was wrong in law to have not made specific findings on the evidence as to the claims relating to Abo Ukwu and Iyi Arunsi lands.

(4) That the learned trial Judge was wrong in law to have made use of the evidence of a witness in Native Court Suit No. 223/33 (who never testified before him), as ground in discrediting the evidence of 2nd Appellant.

(5) That the learned trial Judge failed to observe that the onus of proof of the plea of res judicata was on Defendants/Respondents and that this onus was not discharged.

(6) That the decision is against the weight of evidence.”

Arguing ground 1, Mr. Ofodile, learned counsel for the Appellants referred us to the following portion of the judgment of the learned trial Judge:-

“2nd Plaintiff admitted under cross examination that the area to the East of the motor road which on Exhibit ‘A’ is shown as land of Umu Nne Ibuo family is also part of the land Orua Ndi Uke. This means that the Plaintiffs have not disclosed the whole Orua Ndi Uke for which a declaration of title is sought from this court, and were I to grant the Plaintiffs’ claim I would be impliedly giving them title to an undefined area.”

Counsel then urged it upon us to hold that, since the area in dispute is clearly verged pink in the plan Ex. ‘A’ put in by the appellants, the learned trial Judge misdirected himself in holding as he did. Mr. Ofodile was still pressing this point when he drew his attention to the fact that it would follow that the case put forward on behalf of the appellants was at variance with their claim. Indeed, it would be a complete departure from their pleadings. Whereas the claim is for a declaration of title to the parcels or pieces of land known as and called “Oru Ndi Uke” including “Abo Ukwu” land and “Iyi Arunsi”, both the plain Ex. ‘A’ and the evidence adduced in court tended to confine the area in dispute to a very narrow strip verged pink on the plan. From the record, it is clear that the appellants never applied to amend, and in fact never amended their pleadings. This, to say the least, is fatal to the appellants’ case. We think it is trite law that parties are bound by their pleadings and that any evidence which is at variance with the averment in the pleadings goes to no issue and should be disregarded by the court. It is enough to refer to a recent decision of this court which lays down in detail, the same principle of law: Aniemeka Emegokwue v. James Okadigbo SC. 302/1971, delivered on 19th April, 1973.

“The reason for this rigid rule of pleading and of the evidence has been clearly stated by this court in George and Ors. v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71 at p. 77 as follows:-

“The fairness of a trial can be tested by the maxim audi alteram parterm. Either party must be given an opportunity of being heard; but a party cannot be expected to prepare for the unknown; and the aim of pleadings is to give notice of the case to be met; which enables either party to prepare his evidence and arguments upon the issues raised by the pleadings, and saves either side from being taken by surprise. Incidentally, it makes for economy. The plaintiff will, and indeed must, confine his evidence to those issues; but the cardinal point is the avoidance of surprise.”

In National Investment & Properties Co. Ltd. v. Thompson Organisation Ltd. & Ors. (1969) NMLR 99 at page 104. We again observed as follows:-

“A plaintiff must call evidence to support his pleadings, and evidence which is in fact adduced which is contrary to his pleadings should never be admitted. It makes no difference, as Chief Akin-Olugbade suggested, that the other side did not object to the evidence or that the Judge did not reject it. It is, of course, the duty of counsel to object to inadmissible evidence and the duty of the trial court any way to refuse to admit inadmissible evidence, but if notwithstanding this, through an oversight or otherwise admitted, then it is the duty of the court when it comes to give judgment to treat the inadmissible evidence as if it had never been admitted.”

Other views along the same lines were expressed in Idahosa v. Oronsaye (1959) 4 FSC 166 at p. 171; Bada v. The Chairman L.E.D.B. SC. 501/65 of 23rd June, 1969; Erinle v. Adelaja, SC. 332/1966 of 6th June, 1968; and Chief Sule Jimbo & Ors. v. Aminu Sanni & Ors. SC. 373/67 of 13th March, 1970. Another recent case on the point is Ferdinand George v. The United Bank for Africa Ltd., SC. 209/1971, of 29th September, 1972, reported in (1972) 8/9 S.C. 264 at page 275 in which we referred with approval to our decision in Ogboda v. Adulugba SC. 31/70 of 12th February, 1971, where we emphasised the same point as follows:-

“We have pointed out number of times that the evidence in respect of matters not pleaded really goes to no issue at the trial and the court should not have allowed such evidence to be given (see Chief Sule Jimbo & Ors. v. Aminu Sanni & Ors.) SC. 373/67 dated the 13th March, 1970). Even when such evidence had been wrongly allowed, the trial court should disregard it as irrelevant to the issues properly raised by the pleadings.”

Arguing Ground 4, Mr. Ofodile submitted in favour of the appellants that the learned trial Judge allowed himself to be influenced by a piece of evidence which was given in the Native Court, but which was not before the trial Judge. At a first blush, there seems to be substance in this ground; but on a closer scrutiny, it turns out to be hollow. We cannot but agree with the reply of Mr. Uche, learned counsel for the respondents, that the statement in question is a mere observation which has nothing to do with the specific findings of fact made by the learned trial Judge. This, however, is not intended to detract from the well settled rule that evidence given in another proceeding is not evidence before the court of trial. Be that as it may, we are satisfied that, in the present case, the learned trial Judge was in no way influenced by the irrelevant remark which has given rise to this complaint.

It was under ground 5 that Mr. Ofodile, learned counsel for the appellants, launched his main attack upon the judgment. With subtlety, he blamed the learned trial Judge for holding that the decision in Ex. ‘C’, the proceedings and judgment of the Ohafia Native court, is conclusive as between the parties, and therefore operates as a bar to the appellants’ claim. Mr. Ofodile’s main contention is that the said Native Court Judgment Ex. ‘C’, is vague as to the boundary between the parties; in other words, that the judgment in question has not finally settled the issue between the parties.

In his reply, learned counsel for the respondents dealt systematically with the criticism. His contention rests on two arms. The first is that the Assistant District Officer, Mr. C.J. Mayne, who on review upheld the Native Court judgment, had himself inspected the land in dispute before approving the demarcation line.

In the second place, Mr. Uche relying on the verdict of Mr. Mayne submitted that the demarcation line is so clear and so precise that it leaves no room for ambiguity. He referred to the following passage in the judgment:

“For Plaintiff for that part of the Ndi Orua Uke Land on the left hand side of the Amangwu-Asaga road (facing Asaga). This road is referred to by the Native Court as ‘Uzu Asaga.’ The extremes of this road can be identified by Ukogoro stream and a tree called Udo Nkiri Pa.”

We do not think that the boundary between the parties is vague as suggested by Mr. Ofodile.

The relevant portion of the judgment criticised runs as follows:-

“The land was divided between the Plaintiffs and the Defendants by the Native Court and was modified by C.J. Mayne, District Officer who found himself in agreement with the view of the Native Court that both parties are of the same Ikwu or maternal family. That judgment is conclusive of the matter and cannot be reopened.”

Dealing with the doctrine of estoppel per rem judicatam, this court once held as follows:-

“It is well known that before this doctrine can operate, it must be shown that the parties, issues, and subject matter were the same in the previous case as those in the action in which the plea of res judicata is raised. (See Ihenacho Nwaneri & Ors. v. Nnadikwe Oriuwa & Ors. (1959) 4 FSC p. 132).”

We have given very careful consideration to the facts of this case. We have also examined closely, Ex. ‘C’, the Native Court proceedings that, in the circumstances and events which surround this case, the learned trial Judge was right to hold that “the native court judgment in question, is conclusively of the issues between the parties and therefore cannot be reopened. This, in our view, is not only good law, but good sense. As was stated in New Brunswick Rail Co. v. British and French Trust Corporation Ltd. (1939) AC at pp. 19-20.

“The doctrine of estoppel (per rem judicatam) is one founded on considerations of justice and good senses. If an issue has been distinctly raised and decided in an action, in which the parties are represented, it is unjust and unreasonable to permit the same issue to be litigated afresh between the same parties or persons claiming under them.”

There is one other feature of this case which falls for consideration. There are two concurrent findings of fact made by both the Ohafia Native Court and the Assistant District Officer’s Court in favour of the respondents: namely, that both the appellants and the respondents “are of the same Ikwu or maternal family.” Furthermore, the learned trial Judge also made similar findings of fact as follows:-

“In any case I will go further to say that on the evidence before me, I find after listening to 2nd defendant who impressed me with his intimate knowledge of the family history of both parties that both sides have common descent and relationship with Okpuali Uke of Umu Nne Ibuo.”

We are of the view, that concurrent findings of fact in the lower courts, where there is sufficient evidence to support them, should not be disturbed.

In view of the reasons we have given, we do not think that we should disturbed the decision of the learned trial Judge in this case. The appeal is therefore dismissed with costs to the respondents assessed at N100.

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SC.154/1967