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Mogo Chinwendu V. Nwanegbo Mbamali & Anor (1980) LLJR-SC

Mogo Chinwendu V. Nwanegbo Mbamali & Anor (1980)

LawGlobal-Hub Lead Judgment Report

N. ANIAGOLU, J.S.C.

This appeal has come before this court for hearing following an application for leave to appeal granted by the Federal Court of Appeal on 2nd May 1978 upon a Motion ex parte filed by the defendant/appellants and made ex parte by reason of the combined effect of Section 117(3)(a) of the Constitution of the Federation No. 20 of 1963 as amended by the Constitution (Amendment) (No. 2) Decree, 1976; Section 8(3) of the Federal Court of Appeal Decree No. 43 of 1976 which applied the 1961 Supreme Court Rules to the Federal Court of Appeal; and Order VII Rule 3(1) of the said 1961 Supreme Court Rules which states that:

“Where an appeal lies only by leave of court or of the court below any application to the court for such leave shall be made ex parte by notice on motion.”

Had the motion not been made ex parte and had the respondents been given the opportunity to contest the application, it is doubtful whether, on the facts of the case as found by the trial High Court and confirmed by the Federal Court of Appeal, leave to appeal to the Supreme Court would have been granted by the Federal Court of Appeal – the said facts being so hopelessly against the appellants that the surprise was that they should have chosen to appeal at all against the judgments, the appeal being only one of facts even though ingeniously couched, in the grounds of appeal, as if they had any legal contents. At the end of appellants’ counsel’s argument we did not call upon respondents’ counsel for a reply. This is a clear case in which the Federal Court of Appeal ought to have refused leave to appeal or at best ordered notice of the motion to be served on the respondents, as that court had undoubted power to do, and thereafter hear both sides before granting or refusing the application.

Litigation affecting not only the land in dispute but also other lands in the neigbourhood, dates back to 1921 when the contest was between the people of Igbariam and the people of Achalla as a whole. In that year Chief Iwegbuna of Achalla, who said he was representing Udezu and Amadim villages of Achalla, sued Chief Umeadi of Igbariam claiming, in the District court Awka, to recover a piece of land known as Egede. Chief Umeadi contended that the people of Igbariam had common boundary with only the Umezede village of Achalla. The District Officer, one Mr. Lawton, held in his judgment that the Ngene Ogba stream was part of the “unquestioned” boundary between the Igbariams and the Achallas, and that this boundary continued on “a straight line from the last pillar on the Obiobi to the Ikweogu and from there a straight line to the Ngene Ogba where it runs under the road.” The proceedings in that case (Suit No. 2/21 between Iwegbuna of Achalla and Umeadi of Igbariam) were tendered and received in evidence by Kaine, J., as Exhibit B in the later suit before him No. 0/111/58, Oruno Osiaka and Anor. v. Nwanegbo Mbamali and Ors. The said Suit No. 0/111/58 was in turn tendered before Oputa, J., (as he then was), in the present proceedings (Suit 0/93/71) as Exhibit 2.

If any plans were used by Mr. Lawton in determining the 1921 District Court case, they did not appear to have been tendered in evidence either before Kaine, J., in Suit 0/111/58 or before Oputa, J., in the present proceedings. Although Kaine, J., recorded one Emmanuel Onuora (P.W. 2 in that case) as having put in evidence a certified true copy “of the proceedings in Suit No. 2/21″ there was no indication that any plan or plans formed part of those proceedings.

Be that as it may, the parties made and produced their plans in the present proceedings before Oputa, J. Plans No. SE10/58 dated 21st July, 1958, tendered as Exhibit 4 and No. SE/EC53/71 dated 27th July, 1971, which was said to be a certified true copy of an original plan No. SE10/15/17/59, tendered as Exhibit 1, both made by a Licensed Surveyor, one S.A.O. Emodi, for the plaintiffs (the people of Amadim), were both produced by the plaintiffs, while Plan No. GA309A/60 made by another  Licensed Surveyor, one George Arinze Obianwu, for the defendants (the  people of Umuezede) was produced by the said defendants. On the said plan of the defendants Mr. Obianwu endorsed the following:

CERTIFIED TRUE COPY OF ORIGINAL PLAN MADE BY ME ON 7.11.60 AND 5.8.59.”

This endorsement triggered off a line of cross-examination of the Surveyor which revealed some contradictory evidence. He said in evidence he made his survey for the defendants in 1959 and that he had never heard of Egede Land. He, however, admitted he gave evidence in 1958 (indeed, he was recorded by Kaine, J., as having given evidence as the first witness for the then plaintiffs and having tendered the plan as Exhibit  A) and that one party to the dispute called the land Egede Land and the other Okokwe Land. Then he told Oputa, J.,

“I now admit that I have heard the name Egede Land.”

He further admitted that the plan, Exhibit 6, (the plan for the Umuezede people) was made for the 1958 case and that the defendants came only two weeks previous and asked him to come to court and testify for them. Even though he made the plan in 1959 he endorsed the date “7.11.60” as if on that date he prepared an original plan dated “7.11.60”, an averment which turned out to be false. In four places on Exhibit 6 are written the word “OKOKWE” in new blue ink. Witness denied he wrote those words even though they were contained on a plan which he allegedly made on “7.11.60 and 5.8.59”. The natural inference was that either he wrote those words since he produced the plan or his clients wrote them, in either case of which, as found by the learned trial Judge, the result would not be favourable to the defendants for whom he testified.

In the two plans Exhibits 1 and 6 the two parties have shown the western boundary of the land in dispute as separating the land of the Achallas from the land of the Igbariams, whether the land of the Achallas is called Egede as stated by the Amadim – plaintiffs, or Okokwe as stated by the Umuezede – defendants. In both plans the said western boundary is demarcated by concrete boundary pillars PBF61 to PBF67 and the land lying west of the said boundary line is described by both parties in the said plans as Igbariam land. The certainty of the said western boundary is entirely beyond question, the argument of Mr. Egonu for the defendant to the contrary notwithstanding. We told Mr. Egonu so.

Kaine, J. in his judgment delivered on 27th January 1964 found for the present defendants of Umuezede. On appeal to the Supreme Court by the present plaintiffs (the Amadim people) the Supreme Court reversed the judgment of Kaine, J., held on 28th January, 1966.

“………. that the Umuezede family are not the exclusive owners of the land”

and dismissed their claims for declaration of title, trespass and injunction. The judgment of the Supreme Court was tendered in evidence in the present proceedings as Exhibit 3. The Supreme Court was careful to emphasise that in dismissing the Umuezede claim they were not decreeing title for the Amadims. They observed:

“The plaintiffs here did not discharge that onus. Their learned counsel recognises that the demarcation line fixed in 1921 by the District Officer was not (sic) between Igbariam and Achalla, and that he did not specify any particular Achalla family as being on the other side of the line. Thus the claim of the plaintiffs, namely the Umuezede family, for a declaration of title to the land in dispute must fail, and judgment  must be given dismissing their claim.

But we must stress that in dismissing the Umuezede claim of title we are not deciding that the land belongs to the Amadim, the defendants.”

Note: It ought to be noted that the words “was not between Igbariam and Achalla” contained in the above passage could only meaningfully read ‘was not between Igbariam and Umuezede-Achalla’ in order to reflect the tenor of the judgment since the 1921 judgment was not between Igbariam and Umuezede-Achalla but between Igbariam and Achalla as a whole.

Consequently the Amadims took out the present action in the Onitsha High Court Suit No. O.93/1971 claiming a declaration that they were exclusive owners of the Egede Land and an injunction restraining the Umuezedes from farming or otherwise interfering with the land. It was this action that came to be determined by Oputa, J., in the present proceedings. Significantly the leader and representative of the Umuezedes in the 1958 case before Kaine, J., changed sides before Oputa, J., and testified against his own people of Umuezede swearing that the land in dispute, in truth, belonged to the Amadims.

Justice Oputa found for the Amadims, declaring them to be the owners of the land and restraining the Umuezedes, their servants and/or agents, from farming the land without the permission of the Amadims and from disturbing them in their  peaceful possession and enjoyment of the land.

The Umuezedes appealed to the Federal Court of Appeal complaining, in the original grounds, as follows:-

“(i)    Error-in-Law: The decision is wrong in law in that the learned trial Judge failed to observe:

(a)    That on the totality of the evidence before the court the plaintiffs have failed to discharge the burden cast on them;

(b)That the test laid down in the case of Ekpo v. Ita 11 NLR at page 68 should be applied to the plaintiffs’ case and not to that of the defendants.

(ii)Error-in-Law: The learned trial Judge erred in law in admitting the evidence of Oruno Osiaka 6th P.W. to show that :

“there is such a serious cleavage in the camp of the defendants”

and thereby came to an erroneous conclusion that such evidence tended to weaken the case of the defendants.

(iii)The judgment is unreasonable and unwarranted and cannot be supported having regard to the weight of evidence.

Further grounds of appeal will be filed on receipt of the record of proceedings.”

The record of proceedings shows that six additional grounds of appeal were filed and, with the leave of the Federal Court of Appeal, argued, but these additional grounds were not typed in the record. Original grounds (iii) and (i)(b) were abandoned and the balance was argued with all the additional grounds. From the record of the argument of Mr. Egonu of counsel, for the Umuezedes, the synopsis of his complaints against the judgment was:
(i)that they did not prove the  precise area they were claiming and for which they asked for the injunction of the court;

(ii)that they did not establish acts of ownership in and over the land in dispute to justify the inference that they were exclusive owners;

(iii)that their assertion of a grant of part of the communal land as dowry upon marriage of a member of the plaintiffs’ family was not pleaded and therefore went to no issue;

(iv)that there was no composite plan before the trial Judge to enable him know the relative position of the areas claimed by both parties;

(v)that the standard test set out in Ekpo v. Ita 11 NLR 68 applies only in consideration of title and cannot be made to apply to a defendant who has not counter-claimed for title and who is therefore merely defending an action brought against him; and

(vi)that the learned trial Judge misjudged the legal effect of the Supreme Court Judgment in Exhibit 3 (S.C. 170/64) which he wrongly treated as estoppel when it was not pleaded as estoppel.

The Federal Court of Appeal, in a considered judgment, delivered by B. O. Kazeem, JCA., on 13th February, 1978, dismissed the appeal with costs but amended the area in respect of which title has been granted to the Amadims to:

“that portion of Egede land which is verged pink and hatched black in Exh. 1, i.e. Plan No. SE/EC/53/71;”

and reduced the costs from N600.00 to N400.00.

From this judgment of the Federal Court of Appeal the Umuezedes have now appealed to us as hereinbefore stated upon seven grounds of appeal as follows:

“(1)That the Federal Court of Appeal erred in law in  holding that the western boundary of the land in dispute is the boundary between the people of Igbariam and the plaintiffs/respondents when the same western boundary had been held by the Supreme Court in Appeal No. S.C. 170/1964 (Exhibit 3) between the same parties to be the boundary between Igbariam and Achalla as a whole.

Particulars of Error

(i)The Federal Court of Appeal was precluded by the decision in Appeal No. S.C. 170/1964 from holding that the western boundary of the land in dispute was the boundary between Igbariam and the plaintiffs/respondents.

(ii)That on the plaintiffs/respondents pleadings and their evidence at the trial the western boundary of the land in dispute was not the boundary between Igbariam and the plaintiffs/respondents alone but also of other families of Achalla.

(2)That the Federal Court of Appeal erred in law in granting declaration of title and injunction in favour of the  plaintiffs/respondents in respect of the area verged pink and hatched black in Exhibit 1 when the said area was not the area claimed by the plaintiffs/respondents in their pleadings and evidence and was in fact not proved.

Particulars of Error

(i)The area claimed by the plaintiffs/respondents in their pleadings and evidence is not the same area awarded to them by the Federal Court of Appeal.

(ii)The boundaries of the area which the Federal Court of Appeal awarded to the plaintiffs/respondents were not proved.

(3)(a)That the Federal Court of Appeal misdirected itself in law in holding that effect will be given to an estoppel which was not specifically pleaded by a plaintiff in a case in which pleadings were ordered.

Particulars of  Misdirection
(i)In a case in which pleadings were ordered estoppel most (sic) be specifically pleaded otherwise effect will not be given to it.

(ii)It is not enough to plead a judgment in a case without specifically pleading it as an estoppel.

(b)  That the Federal Court of Appeal misdirected itself both in law and in fact in the following passage of its judgment:

“Moreover, the learned trial Judge did not in fact strike out paragraph 5 of the statement of defence but he proceeded to consider the case of the respondents as well as that of the appellants before coming to the final conclusions in his judgment. There is therefore in our view no justification for the complaint of the appellants on this ground of appeal which fails.”

Particulars of  Misdirection

(i)    The Federal Court of Appeal failed to take into account the fact that the decision the learned trial Judge reached affected his mind in his consideration of the defendant/appellant’s case.

(ii)Whether or not paragraph 5 of the statement of defence was actually struck out, the decision of the matter was fundamental to the decision in the whole case.

(4) That the Federal Court of Appeal misdirected itself in law and in fact in the following passages of its judgment:
(a)    “it is remarkable that the appellant never testified at the trial on this issue.”
(b)    “There is no doubt that the Amadim family of Achalla i.e. the respondents sued the Igbariam family in 1921 on the ownership of a parcel of land and the western boundary in the present case was an issue in that case. The Umuezede family of Achalla i.e. the appellants were not only aware of the case but their leader was present at the proceedings. They nevertheless took no part in the proceedings or even challenged the respondents for suing about a parcel of land affecting their own western boundary. At the conclusion of the case, the western boundary separating the land of the Igbariams from that of the Achallas (sic). It may well be that the boundary extended beyond the survey beacons (PBF61 to PBF67) mentioned by 2nd P.W., and that there are other families of Achalla having the same common boundary with the Igbariams. However, since the appellants now claimed the land in dispute with that same western boundary claim by the respondents as theirs, they ought to have done something about it during the 1921 case (which took place some 50 years before the present suit), and the reticent attitude of their leaders at that time, is quite inexplicable. In any case, the respondents were partly (sic) to the 1921 case when the boundary was drawn. We are therefore satisfied that the learned trial judge was justified in reaching the conclusion on the evidence before him, We are also satisfied that the respondents had proved the western boundary of the land in dispute.”

See also  T.A.A. Awosanya Vs Board Of Customs & Excise (1975) LLJR-SC

(c)”Both P.W.1 and P.W.4 testified that they always lived and farmed on the land and the 1921 case supports that contention.”

(d)”They have, thereon, their various shrines as shown in Exhibit 1.”

(e)”But the learned trial Judge having considered the evidence adduced by the two witnesses believed that of the 7th P.W.”
(f) “We are of the view that when this view expressed by the learned trial Judge is taken together with the reticent attitude of the appellants’ leader to the 1921 case it can be reasonably concluded that the appellants are either fraudulent in their claim or that they are ignorant of the extent of the area of their land. For this reason, we are satisfied that this weakness in the appellants’ case goes to buttress the respondents’ case.”

Particulars of Misdirection

(i)The defendant/appellant tendered in evidence Exhibit 6 which showed the western boundary of the land in dispute on which were the same survey beacons Nos. PBF61-PBF67 as in Exhibit 1.

(ii)The issue as to the western boundary of the land in dispute had been concluded by the judgment of the Supreme Court in Appeal No. SC. 170/64 tendered as Exhibit 3.

(iii)The plaintiffs in the 1921 case the people of Umuedeze and Amadim and not only Amadim (sic) And the land in dispute then was not the same as the land in dispute in the present case.

(iv)There was no necessity for the appellant’s family to have taken part in the 1921 case or to challenge the present respondents in that case. And besides evidence was given in the 1921 case by Chief Umeadi of Igbariam that they had boundary with Umuezede family (defendant/appellant’s family) alone.

(v)The boundary demarcated by Mr. Lawton was between Igbariam and the whole of Achalla and that boundary was marked by only seven pillars Nos. PBF61 – PBF67.

(vi)As found by the Federal Court of Appeal, the appellant’s family were present in court throughout the proceedings in the 1921 case to ensure that the contest did not extend to their land and there was nothing more that was required of them in the circumstances.

(vii)P.W.1 and P.W.4 never testified that they lived on the land in dispute or that they personally farmed thereon and in no way did the 1921 case support that view.

(viii)The plaintiffs/respondents did not give evidence as to any shrines on the land in dispute.

(ix)The learned trial Judge did not resolve the conflict in the evidence of P.W.7 and D.W.2 and besides the D.W. 2 was not cross-examined on the issue.

(x)In a claim for a declaration of title and injunction a party must succeed on the strength of his own case and not on the weakness of the defence and besides there was no weakness in the case of the defence that strengthened the plaintiffs/respondents’ case.

(5)That the Federal Court of Appeal erred in law in confirming (sic) the judgment of the High Court when that judgment was based on wrong principles of law.

Particulars of Error

(i)In consideration (sic) of the case the plaintiffs/respondents the test applied was one applicable in a case for the recovery of possession to land and not for a decree of title to land and injunction.

(ii)And in considering the case for the defence the test applied was that laid down in Ekpo v. Ita 11 NLR 68 in an action for a decree of title and injunction whereas the defendant/appellant did not claim anything in the case.

(6)That the Federal Court of Appeal misdirected itself in law and in fact in holding “that the respondents have shown acts of possession on the land in dispute, positive and numerous and extending over a sufficient length of time to warrant the inference that they are the exclusive owners.”

Particulars of Misdirection

(i)A good part of the alleged acts of possession on the part of the plaintiffs/respondents were outside the land in dispute.

(iii)The plaintiffs-respondents failed to prove acts of possession on the land in dispute to warrant a decree of title being granted to them.

(iii)The defendant/appellant’s family have, from time immemorial, been farming on the land in dispute and have been letting portions thereof to tenants without let or hinderance from the plaintiffs/respondents. The defendant/appellant’s family had also previously lived on the land in dispute.

(7)The judgment is against the weight of evidence.”

Mr. Egonu,  counsel, has filed an elaborate and copiously worded brief for the Umuezede – appellants – which has been countered in a respondents’ brief filed by Mr. Nicol, counsel, for the Amadim – respondents. This is the resume of the account of the litigation between the parties in respect of the land in dispute from 1921 to the present.

There is no doubt, as commented by Oputa, J., that the judgment of the High Court (Exhibit 2) was set aside by the Supreme Court (Exhibit 3) and that the claim of ownership of the Umuezde family to the land shown in the plan, Exhibit 6, was dismissed. The rider which the Supreme Court appended to the judgment, namely, that “our judgment is simply this – that Umuezede family are not the exclusive owners of the land” – a rider which might be said to carry a suggestion that although not exclusive owners” they could be part owners of the land – does not help the Umuezedes or in any way alter either position. They claimed before Kaine, J., (see Exhibit 2) that they were the owners and possessors of the land shown in Exhibit 6. Their claim was dismissed. Neither in their pleadings nor in their evidence before Kaine and Oputa, JJ., did they assert any other form of ownership than exclusive ownership, and their claim having been dismissed, there was no question, as between them and the Amadims in respect of the land in dispute, of any residuary interest left for them. As between them and the Amadims, in respect of the land in dispute, they could not be declared owners, nor be allowed to continue to claim ownership of the land in dispute, the doctrine of interest reipublicae ut sit finis litium a – doctrine of public policy – being well established in our law and, as is the view in Brown v. Dean & Anor. (1910) AC 374, the law never encouraging litigation or a protraction of it.

It is against this background that I now discuss, even if briefly, the estoppel which, although not raised specifically in the pleadings, appeared very glaringly in the proceedings from the facts pleaded and the evidence adduced. Exhibits 2 and 3 were pleaded in paragraph 5 of the statement of claim by the Amadim family who asserted therein that the Umuezedes lost in the Supreme Court. Although they did not specifically plead estoppel yet effect must be given, and was rightly given, by the trial Judge, to the judgments pleaded. This appears to be what is contemplated in Section 54(1) of the Evidence Act Volume II Laws of the Federation of Nigeria and Lagos 1958 which provides that:

“(1)   If a judgment is not pleaded by way of estoppel it is as between parties and privies deemed to be a relevant fact, whenever any matter, which was, or might have been, decided in the action in which it was given, is in issue, or is deemed to be relevant to the issue, in any subsequent proceeding.”

It has been a long established practice in our courts in this country for a defendant to plead a judgment given against a plaintiff as estoppel against the plaintiff where the plaintiff relitigates the subject- matter against him but the practice is not often employed by a plaintiff against a defendant who raises issues already decided upon in a  previous litigation. Nothing, however, prevents a plaintiff from raising, in the original or further pleadings, estoppel against a defendant who makes assertions in his pleadings contrary to what had been solemnly declared in a previous judgment against him. In those circumstances such a plaintiff is entitled to move the court to strike out that part of the defendant’s pleadings which seek to raise the issues again, and it is the duty of the court to strike out such pleadings and save the parties the expense, and the court the time, of hearing lengthy evidence on unnecessary and irrelevant matters. This has always been my view of the law which, with respect, I expressed in my judgment in the Umuahia High Court case Chief Ogburu Urum & Anor. v. Chief Iro Ogbu (HU/76/66) reported in (1972) 2 ECLR (Pt. 11) 760 which came up on appeal to the Supreme Court as SC. 301/73 and in which I referred, among others, to the well known dictum of Lush, J., in Ord v. Ord. (1923) 2 KB. 432 at p. 439 cited with approval by McNair, J., in Bell v. Holmes (1956) 3 All ER 449 at 454. The Supreme Court (and I say so respectfully without intending to exceed the bounds of modesty) summarily dismissed the appeal and confirmed my judgment. The Umezedes in the instant case were obviously estopped from laying claim to the ownership of the land in dispute against the Amadims.

But the Amadims, inspite of that, still carried the onus of proving their ownership of the land in dispute, for, as found by the Supreme Court in Udekwe & Ors. v. Ikefuna Anakwenze & Anor. (1967) NMLR 140 the fact that the Umuezedes lost their claim against the Amadims in Exhibit 3 would not, necessarily, confirm the Amadims as the owners of the land in dispute. Some third parties could still be the owners (Eboha v. Anakwenze supra). They had to prove their ownership. The question is: Did they prove their title Mr. Egonu contends they did not by reason of

(i)their failure to prove acts of ownership numerous and positive enough within the land in dispute to justify the inference that they were owners; and

(ii)the contradictions in their evidence.

It is, however, necessary to point out that while it is true that the dismissal of the Umuezede claim of title (Exhibit 3) did not decree title in the Amadims, their successful defence of that case was in itself an act of possession in assertion of title on which, among others, they were entitled to rely, with other factors, to prove their ownership (Kobina Ababio II v. Priest-in-charge, Catholic Mission (1935) 2 WACA 380 at 381 and 382). Also, it is worthy of note that no other family or village of Achalla has come forward to claim ownership of, or any other interest in the land or in any way come forward to challenge the claims of either party to the land, although they were quite aware or must be presumed to be quite aware, of the pendency of the dispute since 1958 when the action in Exhibit 2 was taken out. The undoubted inference must be that no other family or village of Achalla has any interest in the land in dispute.

The learned trial Judge heard the evidence of the parties including evidence of the plaintiffs’ various acts of ownership which they had inserted in their plan (Exhibit 1), and accepted the plaintiffs’ version as against that of the defendants. I consider that the trial Judge was perfectly entitled to accept the case of the plaintiffs. Apart from the positive nature of the evidence of the plaintiffs any lingering doubt as to its truth was wiped away by the weakness of the case for the defence – a case on which no reasonable court could place any reliance. I have already dealt with the contradictory evidence of the defendants’ surveyor, Mr. Obianwu. The learned Judge commented, and in my view rightly so, on the change of the name of the land the defendants claim, by the insertion of the new name “Okokwe” in the plan for the old name “Iruagu” which was the name they called the land before Kaine, J., in Exhibit 2. Again, the shrines which they said they had in the land in dispute were not shown in the plan, Exhibit 6. Finally, I would like to comment on the legal position of the stance taken in this case by Oruno Osaka the erstwhile star witness of the defendants who were the plaintiffs in the 1958 suit, Exhibit 2. Having in that case testified the contrary of his evidence in the present proceedings, his evidence, as was pointed out in Alhaji Babatunde Adisa Thanni & Ors. v. Sabalemotu Saibu (1977) 2 S.C. 89 at 118, must be rejected. However, had Oruno, in the circumstances of the current proceedings been credit worthy, the fact of his dissent from the claim of his family (i.e. defendants’ claim) to the ownership of the land in dispute would certainly not only weaken the case of the defendants but strengthen that of the plaintiffs. (Akunwata Nwagbogu & Anor. v. Michael Ogo Ibeziako and 2 Ors. FSC 205/1959 decided on 3rd March 1960).

I am of the view that the learned trial Judge rightly gave judgment for the plaintiffs for the ownership of the land in dispute and that the Court of Appeal rightly dismissed the appeal lodged by the Umuezedes against that judgment. In the circumstances, there being no merit in this appeal, I would dismiss it, and hereby dismissed it, with costs to the respondents assessed at N300.00.

A. G. IRIKEFE, J.S.C.: My Lords, I have had the benefit of reading in draft the judgment just read by my learned brother, Aniagolu, JSC., and I agree with the reasoning and conclusions therein. The issues raised in the appeal are factual and the hurdle presented by two previous adverse concurrent findings of fact, has not, in my opinion, been successfully scaled by the appellants. I agree that the appeal lacks merit and should be dismissed with N300 costs in favour of the respondents.

The decision of the Federal Court of Appeal (Phil-Ebosie, Kazeem, Graham-Douglas, JJCA.), in this matter dated 13th February, 1978, is hereby affirmed.

C. IDIGBE, J.S.C.: My Lords, the relevant facts of this case have been fully set out in the judgment of the High Court Oputa, J., (as he then was) and that of my learned brother, Aniagolu, JSC., which has just been read with whose reasoning and conclusions I find myself in entire agreement. This appeal plainly has no hope of succeeding as it not only has no merit whatsoever but should never have been allowed by the Court of Appeal to come before us. In Exhibit 3 in these proceedings, the Supreme Court when dismissing the claim of the appellants (the Umuezede family), as plaintiffs, to this parcel of land in dispute in these proceedings observed:-

“……… We have had to consider whether we ought to send the case back for retrial or enter a  non-suit, but have come to the conclusion that it would not be right to do either. The plaintiffs here did not discharge that onus (i.e. the onus of proving acts of ownership extending over a time, numerous and positive enough to warrant the inference that the plaintiffs were exclusive owners …..)

Thus the claim of the plaintiffs, namely the Umuezede family, for a declaration of title (i.e. ownership of) to the land in dispute must fail, and judgment must be given dismissing their claim . But we must stress that in dismissing the Umuezede’s claim of title, we are not deciding that the land belongs to the Amadim, the defendants (i.e. the respondents who are the plaintiffs in these proceedings)” (Brackets and underlining supplied by me.)

It appears to me that the appellants, under a misapprehension and complete misunderstanding of the last sentence in the judgment of this court in Exhibit 3, were misguided and misled to plead, as they did in a paragraph of their statement of defence, that they are “owners” of the land in dispute. It was in law as well as in fact no longer open to them to plead in that way. Had application been made in the court of trial to strike out the relevant paragraph, that application ought, in my view, to have been granted; and had any such application been made, judgment, in so far as concerns the plaintiffs’, (i.e. respondents’) claim for title to the land in dispute should, at an early stage in these proceedings, have been granted to the respondents, and much of the evidence received in these proceedings would have been absolutely unnecessary.

See also  Alhaji Adebiyi Layinka V. Adeola Makinde (2002) LLJR-SC

This appeal turns, in the main, upon the true and real effect of estoppel per rem judicatam, and on the effect of the failure of the party who seeks to rely on the plea to make a specific plea of the same in his pleadings although he pleaded enough facts on which the plea can be founded. One of the principal contentions of the appellants in the Court of Appeal and in this court is that the respondents have failed to plead specifically estoppel by record (i.e. in this case, that the appellants are estopped from claiming, as owners, the land in dispute by virtue of Exhibit 3) the learned trial Judge erred in law in giving effect to Exhibit 3 in the face of abundant evidence on both sides relating to the claim, proceedings  and judgment in Exhibit 3. It is my view that the Court of Appeal was right in rejecting this contention of the appellants. Undoubtedly the old rule was that estoppel by record and deed must be pleaded where, as here, there was opportunity to do so; under the modern practice it is not, however, necessary to plead estoppel in any particular form so long as the matters constituting the estoppel are stated in such a manner (as has been done in the pleadings of the respondents in these proceedings) to show that the party pleading relies upon it as a defence or an answer. (See also Sanders (orse. Saunders) v. Sanders (orse. Saunders) (1952) 2 All ER 767 per Lord Merriman, P. at 769 where the learned president observed:-

“When an estoppel is asserted it should, whether by familiarity or pleading, as in the High Court, or in some other appropriate way be brought to the notice of the tribunal alleged to be effected by it and supported by evidence of the matters from which the estoppel is said to arise…………” (Underlining supplied by me)

Where however a party omits altogether to plead estoppel when he has opportunity to do so, he cannot thereafter rely on it – (see Matthew v. Osborne (1853) 13 CB 919; ER 1465).

Although the Supreme Court did not in Exhibit 3 declare the respondents owners of the land in dispute the appellants having lost their claim to the land in dispute in Exhibit 3, the right or cause of action set up in the suit (i.e. right to claim ownership of the said land then, as now, in dispute) by the appellants merged in the judgment pronounced in favour of the respondents qua defendants: transit in rem judicatam. The result is that no further claim of ownership can be made by the appellants (i.e. upon the same cause of action) in any subsequent proceedings between them and the respondents. As was said in Blair v. Currain (1939) 62 CLR 464 in the High Court of Australia:

“The very right or cause of action claimed or put in suit has in the first proceedings passes into judgment, so that it merged and has no longer an independent existence” – per Dixon, J., at p. 532 (Underlining supplied).

The appellants’ stance in these proceedings, albeit erroneous, is that they own  the land in dispute and farm thereon as of right. The learned Judge quite rightly in my view, on the evidence which he rightly accepted and in the face of Exhibit 3, rejected the claim of the appellants; he, therefore, correctly, in my view, held that the appellants ought to be restrained by an order of injunction from entering the land in dispute because by implication of law they (the appellants) are trespassers on the said land.

The Court of Appeal, quite rightly, dismissed the appeal from the judgment of the trial Court and, in my view, properly limited the area to which title was granted to the area verged pink in Plan No. SE/EC.53/71 (Exhibit 1) it being the precise area claimed. As I said earlier, this indeed, is a strange appeal which plainly, in my view, has no hope of success. Accordingly Your Lordships ought to reject all the contentions of the appellants, I would dismiss this appeal and I am in agreement with the order as to costs, proposed in the leading judgment of My Lord, Aniagolu, JSC.

A. O. OBASEKI, J.S.C.:  The proceedings in respect of which this appeal was lodged to this court were commenced in 1971 in the High Court of East Central State, Onitsha Judicial Division (now High Court of Anambra State, Onitsha Judicial Division) by a writ of summons filed by the respondents who claimed:

“(1)   A declaration that the plaintiffs are the exclusive owners of a piece or parcel of land known as Egede….

and

(2)An injunction restraining the defendants, their servants and/or agents from entering upon or farming or otherwise interfering with the said land.”

Pleadings were ordered, filed and served and at the close of pleadings, the matter came before Oputa, J. (as he then was) for hearing. After taking evidence from 7 witnesses called by the plaintiffs and 4 witnesses called by the defendants, Oputa, J.,  gave a considered judgment granting the declaration and the order of injunction claimed. More particularly, the closing paragraphs of the judgment read:

“On the evidence, I must say that I prefer the account given by the plaintiffs to that given by the defendants. I believe the plaintiffs’ story that they are the owners of the land in dispute. Also, since the plaintiffs’ ownership of the northern portion of the entire land verged green in Exhibit 1 – that is the portion involved in suit MAW/147/57 is not in dispute, one can draw it as inference dictated by Section 45 of the Evidence Law that the plaintiffs also own the land in dispute which is so situated by location and geography with the land involved in MAW/147/57 that what is true of the one parcel is also true of the other.

In the final result, and for all the reasons given in this judgment, the plaintiffs’ case succeeds. There will be judgment for the plaintiffs of the Amadim family for all that piece or parcel of land known as Egede land and verged green in Plan No. SE/EC. 53/71 tendered as Exhibit 1.

ii.The defendants of Umuezede family are hereby restrained as well as their servants and/or agents from farming on the plaintiffs’ Egede land without their permission and from disturbing the plaintiffs in the peaceful possession and enjoyment of their Egede land.

iii.There will be costs to the plaintiffs which I assess at N600.00.”

The defendants’ appeal to the Federal Court of Appeal only succeeded in redefining the area to which the declaration of title and the order of injunction are tied. This was made very clear in the closing  portion of the judgment delivered by Kazeem, JCA., which reads:

“This now brings us to the declaration of title and the injunction granted to the respondents which is the gravamen of the complaint in the additional ground 5(a) and (b). We are of the view that the learned trial Judge having reached the conclusion that the land in dispute is that portion of the land in Exhibit 1 which is verged pink and hatched black, he was wrong in granting any declaration of title and an injunction to the respondents beyond that area: – See N.S. Ebosie v. R.J.C. Phil-Ebosie (1976) 7 S.C. 119 at p. 136. We therefore in this judgment amend the two orders made by the learned trial Judge as follows:
(a)The respondents i.e. the Amadim family of Achalla are hereby granted a declaration of title as the exclusive owners of that portion of Egede land which is verged pink and hatched black in Exhibit 1 i.e. Plan No. SE/EC.53/71; and

(b) That the appellants i.e. the Umuezede family of Achalla, their servants and/or agents are hereby restrained from entering upon, farming or otherwise interfering with the said portion of Egede land verged pink and hatched black in Exhibit 1.

On the question of costs, the learned trial Judge awarded N600.00 against the appellants which has been submitted in their additional ground 6 to be excessive. Although a trial Judge has discretion in awarding costs in a matter before him, that discretion must be exercised judicially and invariably account  is usually taken of the amount expended by the parties in the case. In the present case, we cannot find on the record any basis for awarding such high costs against the appellants, and therefore reverse it. See William Ladega v. Kasali Akinbiyi (1975) 2 S.C. 91 at p. 97. For the reasons already given, and subject to the awarded orders hereby made, we find no merit in this appeal, which is hereby dismissed and we hereby assess the costs in the court below and in this court at N400.00.”

Still aggrieved by the decision of the Federal Court of Appeal, the appellants have brought this appeal to this court basing their grievance on 7 grounds set out in the Notice of Appeal.

In compliance with Order 9 Rule 3 of the Supreme Court Rules 1977, the appellants and the respondents filed their briefs of arguments before we heard oral argument.

After hearing the submissions and arguments of learned counsel for the appellants, we found it unnecessary to call on the respondents’ counsel for a reply.

The main complaint of the appellants before us was that the boundaries of the land in respect of which the declaration of title was granted to the respondents were not proved to bring it within the category of certainty and well defined piece or parcel of land. To highlight this complaint, counsel posed 6 questions in his brief for determination.

The 1st question posed is this:

“Is the western boundary of the parcel of land shown in Exhibit 1 and marked by the survey beacons Nos. PBF 61 to PBF 67 the boundary between the people of Igbariam and the respondents alone or between the Igbariam and the people of Achalla as a whole If the latter, have the respondents then proved the western boundary for their own land. In view of the judgment of the Supreme Court in Appeal No. SC. 170/1962 (Exhibit 3) and the evidence of the respondents, was the Federal Court of Appeal justified in holding that the western boundary of the land marked by survey beacons Nos. PBF 61 to PBF 67 was the boundary between the people of Igbariam and the respondents alone and that the respondents had proved the western boundary of the land in dispute

The 2nd question posed reads:

“Was the Federal Court of Appeal right in granting a declaration of title and injunction to the respondents in respect of the area verged pink and hatched in black when the said area was not the same as the area claimed by the respondents and when the boundary of the former area were not proved”

The 3rd question posed reads:

“Will effect be given to an estoppel which was not specifically pleaded in a case in which pleadings were ordered and filed And was the Federal Court of Appeal correct in holding that the decision of the lower court on the issue of the alleged estoppel did not affect the ultimate decision in the case”

The 4th series of questions posed and divided into sub-paragraphs a, b, c, and d were not proper questions raising issues of law but challenges and criticisms on the observations of the learned Justices of the Court of Appeal which observations were fully justified by facts appearing in the record of proceedings. They deserve no considerations by this court at all.

The 5th question posed was a critique on the alleged approach of the learned trial Judge to the cases put up by the parties. It reads:
“It has also to be determined whether the Federal Court of Appeal was correct in confirming the judgment of the lower court whereas the lower court applied the test applicable in a case for the recovery of possession to land when considering the respondents’ case and considered the case of the appellants as if he were in fact claiming a declaration of title.”

The 6th and last question posed in the brief reads:

“Did the respondents discharge the onus on them in a claim of declaration of title to land and for an injunction Were the respondents in the exclusive possession of the land in dispute”

My Lords, the facts in their fullest detail have been clearly set out in the judgment of my learned brother,   Aniagolu, JSC., which I have had the privilege of seeing in advance and which was delivered a short while ago. I will therefore only refer to the  portion that calls for comments in this judgment.

The appellants and respondents are members of Achalla community whose village land as a whole is contiguous with that of the Igbariam people. The common boundary between the two communities was demarcated about sixty years ago by Mr. Lawton, the Awka District Officer who, in 1921, heard and determined a case – Native Court Suit No. 2 of 1921 between Chief Iwegbuna of Achalla on behalf of the Udezu and Amadim family against Chief Umeadi wherein Chief Iwegbuna claimed a piece of land to the west of the land in dispute in this case. According to Exhibit 3, (a judgment of the Supreme Court in SC. 170/64 delivered on the 28th day of January, 1966 in an appeal lodged by the respondents in this case against the judgment of the High Court (Kaine, J.) decreeing title to the land now in dispute to the appellants in this case), “Mr. Lawton dismissed the suit and appended a Note to his judgment which carefully read, demarcates the boundary between Igbariam and Achalla as a whole.” The respondents in the High Court produced a plan No. SE/EC. 53/71 Exhibit 1 showing among other things the land in dispute in this case and claimed to have been broken into and trespassed upon by the appellants. The appellants  also produced a plan Exhibit 6 which was a copy of the plan they used in prosecuting their claim against the plaintiffs/respondents in the earlier case in respect of which the judgment of the Supreme Court Exhibit 3 dismissing the appellants’ claim for a declaration of title was delivered. Although the features in Exhibit 6 were altered apparently by the appellants shortly before it was tendered in this case, the main boundary lines demarcating the extent of the land coincide with the boundary lines of the area shown in Exhibit 1 as the area in dispute trespassed on by the appellants in this case.

Apart from the land, there was oral testimony of 1st P/W describing the area of land in dispute and in particular the western boundary. In both Exhibit 1 and Exhibit 6, the western boundary is well defined by concrete pillars No. PBF 61 to PBF 67. I am therefore unable to appreciate and accept the contention of the appellants’ counsel that the western boundary of the land in dispute has not been proved and that there is no certainty about the area claimed.

It appears counsel based his arguments on an erroneous view of the little observation in Exhibit 3 to the effect that “Mr. Lawton dismissed the suit and appended a note to his judgment which carefully read, demarcates the boundary between Igbariam and Achalla as a whole.”

The contention of appellants’ counsel that the phrase ‘Achalla as a whole’ disentitles any family in Achalla village community from claiming ownership of the land along the boundary which is demarcated by 7 survey beacons PBF 60 to PBF 67 cannot find any basis to rest on in Exhibit 3. It is a statement clearly defining and clarifying the common boundary between two villages and/or two different communities. The ground for the dismissal of their claim is obvious from the portion of the judgment of Kaine, J., quoted in the Supreme Court judgment as exposing the weakness of the respondents’ claim. It reads:

“I may say that as usual there are claims and counter-claims about farms which are alleged to exist on the land in dispute. All I have to say is that there are no plantations on the land in dispute showing some permanency. It is all a question of cassava farms and annual crops which cannot tell the story of how the land was put in use several years ago. I may say that in this connection there is nothing to choose between the evidence led by the defendants and the evidence led by the plaintiffs” (Underlining mine).

See also  Nnanyelugo Samuel O. Ebosie V. Joseph Phil-ebosie & Ors (1976) LLJR-SC

After considering the mistake made in the use of the 1921 suit and the extent of the onus of proof placed by law and enshrined in judicial decisions including Ekpo v. Ita 11 NLR 65, Kodilinye v. Odu 2 WACA 366 and Nwanko Udegbe & Ors. v. Anachuna Nwokafor & Ors. FSC. 440/1961 decided on 19th February, 1963 which went on appeal to the Privy Council in respect of which Privy Council delivered its judgment on the 14th July, 1964, the Supreme Court quoting the relevant portion of the Privy Council’s judgment in Udegbe’s case said:
“The plaintiff in this case must rely on the strength of his own case and not on the weakness of the defendants’ case. If this onus is not discharged, the weakness of the defendants’ case will not help him and the proper judgment is for the defendant. Such a  judgment decrees no title to the defendant, he not having sought the declaration. So if the whole evidence in the case be conflicting and somewhat confused and there is little to choose between the rival traditional stories the plaintiff fails in the decree he seeks and judgment must be entered for the defendant.” (Underlining mine)

The Supreme Court then quoted the well known classical passage from the judgment of the full court (old Nigerian Supreme Court) in Ekpo v. Ita (supra) delivered by Webber, J., and observed in conclusion:

“The plaintiffs here did not discharge that onus; their learned counsel recognises that the demarcation lined fixed in 1921 by the District Officer was not between Igbariam and Achalla and that he did not specify any particular Achalla family as being on the other side of the line. Thus, the claim of the plaintiffs, namely, the Umuezede family, for a declaration of title to the land in dispute must fail and judgment must be given dismissing the claim.

But we must stress that in dismissing the Umuezede claim of title we are not deciding that the land belongs to Amadim, the defendants………… It is not suggested that the Umuezedes’ claims for damages for trespass and for an injunction have an independent standing; they are based on the claim of title and must fail with it.” (Underlining mine)

The reasons for the Supreme Court’s judgment could therefore not be clearer. The fact that Mr. Lawton did not name any  particular Achalla family as being on the other side of the line created an opportunity for any Achalla family that has genuine claim to establish their claim. The appellant tried and failed as shown in Exhibit 3. The respondents have now tried and succeeded in both the High Court and the Federal Court of Appeal. From all indications this appeal which is intended to reverse the success does not pose a serious threat in view of lack of substance in the grounds filed and argued. This disposes of the 1st question raised by the appellants before us. I shall now proceed to examine the 2nd question.
The learned trial Judge, as regards the area in dispute, after a detailed consideration of the pleadings and plans filed found:

“The area – the remaining area which one can, on the state of the pleadings and plans now call the land in dispute over which issues can now be joined will be the area in Exhibit 1 verged pink and hatched out in Black.” (Underlining mine).

Commenting on the evidence of 1st P.W. and 4th P.W., classified by him as the star witnesses for plaintiffs’ side, he said:

“They took the surveyor 2nd P.W. to the site and pointed out to him the various acts of possession of Amadim family on the land in dispute. These witnesses were not at all shaken by cross-examination. I believe their evidence that the family, the Amadim family have from time immemorial exercised acts of possession on the land in dispute.” (Underlining mine).

On the issue of boundary, part of the testimony of 1st plaintiffs’ witness reads:

“We showed our surveyor the western boundary of the land in dispute which is also our boundary with Igbariam. The western boundary was the boundary in dispute in 1921 fixed by D.O. Lawton.” (Underlining mine).

In the same vein the 4th plaintiffs’ witness’s testimony reads in part:

“I remember the 1921 case involving Chief Iwegbuna of Amadim and Chief Umeadi of Igbariam. This was the case which settled the boundary between Amadim and Igbariam.,” (Underlining mine).

The learned trial Judge and the learned Justices of the Federal Court of Appeal were in my view perfectly justified in accepting the survey beacons PBF 61 to PBF 67 as demarcating the western boundary of the land in dispute and in decreeing title to the area verged pink and hatched in black to the respondents.

It is settled law that where in a claim for declaration of title the dispute is proved to be confined to a smaller area than originally set out in the claim, judgment should be limited to the area in dispute. The court’s powers of adjudication are never invoked on matters not in dispute or controversy and to complain of the court’s action in limiting the declaration to an area proved to be the area in dispute borders on frivolity. It is erroneous to argue that that area was not the same as the area claimed.

Even where a plaintiff succeeds in establishing a title to a smaller area than that claimed, it is the law that the court may grant him a declaration in respect of that smaller area.

See Josiah Sobanjo v. Adeshina Oke and Anor. (1954) 14 WACA 573; Okon Owon v. Eto Ndon & Ors. 12 WACA 71

Happily, here, the area claimed was found by the learned trial Judge to be the area in dispute verged pink and hatched in black.

The 3rd question deals with the judgment of the Supreme Court Exhibit 3 which has been admitted by both sides in these proceedings. It was given in an appeal from the High Court to this court and the subject matter is the same as in these proceedings. It was pleaded in paragraph 5 of the statement of claim and admitted in paragraph 6 of the statement of defence.

The plaintiffs did not specifically plead that the defendants now respondents were estopped as against them from claiming ownership of the land in dispute. But paragraph 6 of the statement of defence more or less brought this out when defendants pleaded that:

“The defendants admit that the suit referred to in paragraph 5 of the statement of claim was instituted but maintain that the finding of the Supreme Court was to the effect that the defendants were not exclusive owners.”

It is necessary to refer to the claim as set out in Exhibit 2 the judgment of the High Court, Onitsha where the case was first tried before it went on appeal to the Supreme Court. There Kaine, J., in the opening paragraph set out the claim. It reads:

“In this suit the plaintiffs’ claims are for a declaration that the plaintiffs are the owners and possessors of the lands known as and called Iruagu and Okokwe situate in Achalla, 50.00pounds, damages for trespass and an injunction.”

The Supreme Court dealing with the question whether the respondents discharged the onus of proof in its judgment said, inter alia:

“Earlier in Ekpo v. Ita, giving the judgment of the full court, Webber, J., (as he then was), had stated that

“In a claim for a decree of declaration of title, the onus is on the plaintiff to prove acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that the plaintiffs were exclusive owners – if the evidence of tradition is inconclusive the case must rest on question of fact.”

The plaintiffs here did not discharge that onus. Their learned counsel recognises that the demarcation line fixed in 1921 by the District Officer was not between Igbariam and Achalla, and that he did not specify any particular Achalla family as being on the other side of the line. Thus, the claim of the plaintiffs, namely, the Umuezede family for a declaration of title to the land in dispute must fail and judgment must be given dismissing their claim……………….. It is not suggested that the Umuezede claims for damages for trespass and for an injunction have an independent standing; they are based on the claim of title and must fail with it.” (Underlining mine).

In my view and having regard to the above quoted decision of this court, the Federal Court of Appeal was perfectly justified in rejecting the appellants’ complaints of failure to plead the Supreme Court judgment as an estoppel and they properly referred to the cases of

Sheridan v. Barnett (1879) 4 LR Ir. 223;
Keith v. R. Gancia & Co.Ltd. (1904) 1 Ch 774 CCA;
Kwasi Agyako v. Nazier Zok & 3 Ors. (1944) 40 WACA 277 at 280;
Ord. v. Ord. (1923) 2 KB 439;
Bell v. Holmes (1965) 3 All ER 499 at 454.

A declaration of title is made by court in respect of a parcel of land in favour of the claimant plaintiffs only if by traditional evidence or by evidence of acts of ownership numerous and positive enough and extending over a long  period of time, he satisfies the court that he is exclusive owner. That the Supreme Court declared that the appellants were not exclusive owners is indicative only of the fact that appellants herein did not discharge the onus of proof placed on them in their claim. Such statement did not confer any interest or title as against the respondents on the appellants and I find it difficult to see the point of the emphasis being placed on the fact that the Supreme Court only declared that they were exclusive owners. It only emphasised their failure in their claim.

That apart, the judgment of the High Court and that of the Federal Court of Appeal acknowledged the fact that the plea of estoppel was not specifically made in plaintiffs’ pleading and quite correctly stated that that failure did not deprive the plaintiffs now respondents of the effective use of the estoppel created by the Supreme Court judgment the facts of which were pleaded and admitted.

There are cases in which the court has construed informal and unconventional pleadings as pleadings of estoppel where on looking at the substance rather than the form it has been satisfied that the pleader must have intended them as such.

In the case of Harnam Sigh v. Jamal Pirhai (1951) AC 688, Lord Radcliffe observed at p. 699:

“The appellant had on the previous day served the respondents with one of several successive notices to quit for possession being required on or before September, 30, 1943. To this the solicitors replied:

“Our client will not vacate the premises in accordance with your notice but will remain in occupation as a statutory tenant from the expiry of the notice.”

This statement is both explicit and conclusive………… In their Lordships view that letter created an estoppel between the parties. The trial Judge declined to treat it in this way; partly because estoppel had not been specifically pleaded and partly because the appellant had relied on his notice as being a good and valid notice to quit.

As regard the first ground it would be a mistake to invoke it in this case. The appellants’ counsel made a full argument to the effect that the  notice to quit as at September 30, 1943 had been “accepted” and that the respondent had thereby become a statutory tenant (which is only another aspect of  estoppel argument) and he contended that the respondent was estopped by subsequent conduct in paying increased rent under Section 9 of the Ordinance………………….. and it would be unsatisfactory to allow a departure from the facts as pleaded on one side while treating the other as debarred by defect of pleading from raising an answer the substance of which was mainly in issue before the court…………. Their Lordships conclude therefore that the respondent must be regarded as a statutory tenant.”

It may be noted that the estoppel in this case was being used to demolish a defence; and it can readily be understood that while a defendant who raises an estoppel may be required to plead it, a plaintiff may be excused in appropriate cases from pleading an estoppel which may or may not be necessary according as the nature of the defence may in the event require.

Again in Re Vandervell’s Trusts (1974) 3 WLR 256, Lord Denning, MR. at p. 264 said:

“I began to think that we were back in the bad old days before the Common Law Procedure Acts, 1852 and 1854 when pleadings had to state the legal result and, a case could be lost by the omission of a single averment (see Bullen and Leake’s Precedents of Pleadings 3rd Ed. (1864) p. 147). All that has been long swept away. It is sufficient for the pleader to state the material facts. He need not state the legal result. If for convenience he does so he is not bound by or limited to what he had stated. He can present in argument any legal consequence of which the facts permits.”

See also Lawton L.J. at p. 267.

See also Lever Brothers Ltd. v. Bell (1931) 1 KB P 557 at 582 – 583 per Scrutton, LJ.

The learned trial Judge and the learned Justices of the Federal Court of Appeal were justified in their assessment of the effect of pleading the Supreme Court judgment Exhibit C on the appellants’ right to claim ownership to the land in dispute as against the respondents. The appellants were estopped from so claiming by the said judgment and it did not need the use of the magic word ‘Estoppel’ to drive home the effect of that  judgment to the parties to the action.
The 5th and 6th questions were effectively answered by the findings of the trial court which findings were confirmed by the Federal Court of Appeal. There are no facts on record to lead me to the contrary view. It is necessary to emphasise that in such a case where there are two concurrent findings of fact, these findings cannot be disturbed without any substantial error apparent on the record of  proceedings.

See    (1)   Scrimati Ribhabati Devi v. Kumar, 12 WACA 170
(2)   Ramendra v. Narayan Roy 62 TLR 549.
(3)   Abinabina v. Enyimadu (1953) AC 207
(4)   Ometan v. Chief Dore Numa 11 NLR 18

In Ometan v. Chief Dore Numa (supra), Lord Atkins delivering the judgment of their Lordships of the Judicial Committee of the Privy Council said at p. 18.

“The question was, as it appears to their Lordships, entirely a question of fact and a question depending upon the knowledge of tribal tenures and of the habits and customs of native people in relation to dealing with land. It was decided by both courts in favour of the defendants and it appears to be a case peculiarly within the principle of the rule that their Lordships have laid down themselves that as a general rule they will not interfere with concurrent findings of fact in cases of this description.”

On the whole, the appeal lacks merit and I hereby dismiss it. The judgment of the High Court (Oputa, J., as he then was) and the judgment of the Federal Court of Appeal affirming the said Judgment of Oputa, J., are hereby affirmed with costs to the respondents assessed at N300.00 (Three Hundred Naira) in concurrence with the order of my learned brothers in this appeal.


Other Citation: (1980) LCN/1108(SC)

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