Nwokolo Oliko & Anor Vs Ofili Okonkwo & Ors (1970)

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UDOMA, JSC

In the Asaba Grade B Customary Court Suit No. 275/65, the plaintiffs/appellants, Nwokolo Oliko and Okonkwo Ibonye for themselves and on behalf of the family of Ogbeamei.

Umuagu, Asaba (hereinafter to be referred to as the plaintiffs) sued the defendants/respondents, Ofm Okonkwo, Okocha Ogbotobo and Obi Azana Izegbu for themselves and on behalf of the family of Ogbonishe, Umuagu, Asaba (hereinafter to be referred to as the defendants). The claim was for:-

“(i) Declaration of ‘title’ to pieces and parcels of land known as and called ‘Ububangwulor’ and ‘Ohuiyi’.
(ii) N100 general damages for trespass on ,the said land.
(iii) Injunction to restrain the defendants, their agents and or servants from trespassing further unto the said plaintiffs’ land.”

After due hearing, the customary court entered judgement for the plaintiffs, granted the declaration of title and the injunction sought and awarded the plaintiffs N70 damages for trespass, with costs.

The defendants appealed against the judgement on several grounds to the Chief Magistrate, Asaba. At the hearing before the Chief Magistrate, the grounds filed were exhaustively argued on behalf of the defendants, therein appellants, and equally exhaustively on behalf of the plaintiffs, therein respondents, when suddenly and as an after thought at the tail end of his submissions in reply to arguments on behalf of the defendants, counsel for the plaintiffs took the some what unusual course of raising for the first time and arguing on behalf of the plaintiffs the issue of estoppel per rem judicatam based on a purported settlement of the dispute before the Diokpa the most senior and oldest member of Umuagu family to which both parties belong.

On taking the point, counsel submitted that on the facts disclosed on the face of the record of proceedings in the customary court, the issues in controversy between the parties had already been adjudicated upon at meetings held at the palace of the Diokpa on the complaints of the plaintiffs; and that the appeal should be dismissed on the ground that the issues were res judicata.

At this juncture, we pause to note that it is nowhere recorded in the proceedings before the learned Chief Magistrate that opportunity was afforded counsel for the defendants to reply to that submission and what that reply, if any, was or that the defendants declined to make a reply.

The learned Chief Magistrate in a reserved judgement upheld the submission on the issue of res judicata and dismissed the appeal. In dismissing the appeal the learned Chief Magistrate said:

“I am of the opinion that the plaintiffs/respondents have raised in their evidence and established the necessary elements of estoppel per rem judicatam and that the defendants/appellants are estopped from further questioning the right of the plaintiffs/respondents to the areas of the land where the trespass was alleged to have taken place.

It now becomes unnecessary for me to examine in detail the other grounds of appeal filed and argued.”

An appeal to the High Court of the Mid-Western State (Arthur Prest, J.) against the judgement succeeded on the only ground of appeal filed and argued, namely, the ground that the learned Chief Magistrate was wrong in law in holding that:-
“The meetings for a settlement convened by the Diokpa in 1964, 1965 were arbitrations which had created estoppel per rem judicatam between the parties.”
The appeal was allowed. The judgements of both the Chief Magistrate and the Asaba Grade B customary court were set aside and the plaintiffs nonsuited.

This appeal is against the judgement of the learned judge on appeal. It is by the plaintiffs, who have complained that the learned judge on appeal was wrong in law:-
(i) To hold that etoppel per rem judicatam was not established on the evidence before the Asaba Grade B customary court having regard to the views expressed by him to the effect that the Diokpa meeting was a judicial tribunal which was competent to adjudicate upon the issues in controversy between the parties, the said issues being the same as those adjudicated upon by the Asaba Grade B customary court and the Chief Magistrate. And
(ii) To go into the grounds of appeal which were argued before but not dealt with by the learned Chief Magistrate, the said grounds not having been argued before the learned judge on appeal.

In respect of the 1st ground of appeal, Mr Ohen, counsel for the plaintiffs submitted that on the face of the record of proceedings in the Asaba Grade B customary court, the meetings which were held in 1964 and 1965 at the instance of the plaintiffs before the Diokpa of Umuagu family of which the plaintiffs and the defendants are members had decided that the pieces or parcels of land known as and called Ububangwulor and Ohuiyi then in dispute were the property of the plaintiffs, the boundaries separating the said land from the land of the defendants being Ububangwulor; and that that being so, the learned judge on appeal was wrong in law to hold that the issues between the parties were not res judicata.