Obi Izediuno Ezewani V. Obi Nkadi Onwordi & Ors. (1986) LLJR-SC

Obi Izediuno Ezewani V. Obi Nkadi Onwordi & Ors. (1986)

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The land dispute between the people of Ibusa and the people of Ogwashi-Ukwu both of Bendel State, which gave rise to this appeal, apparently began in 1962. It is therefore important as background to this appeal, to take a look at what happened at that time.

In that year, both parties sued themselves over the same land; and those Suits – Nos B/44/62, B/46/62 and B/47/62 – (hereinafter called the “1962 case”), were subsequently consolidated for trial. In two of those Suits, the Ogwashi- Ukwu people as plaintiffs claimed declaration of title, damages for trespass and perpetual injunction over the same farmland which they called Odonkwo land.

But at that time, the Ibusa people as defendants did not counter-claim for any declaration of title to the land in dispute. In both their pleadings and the evidence adduced at the trial of the 1962 cases, both parties, relied heavily on their traditional histories. The trial Judge therefore at the conclusion of the trial disbelieved the traditional history of the Ogwashi-Ukwu people and said inter-alia that he was inclined to lean to the view that the grains-of truth in the traditional history (of the Ogwashi-Ukwu people) appeared to have lost their lustre with the passage of time. (See page 118 lines 21-24 of Exh. F.).

On the other hand, he believed the evidence led on the traditional history of the Ibusa people and said: “I must say that I am impressed by the Traditional history (of the Ibusa people) which rings true”. (See page 121 lines 4-7 of Exh. F.).

In the result, the Ogwashi-Ukwu people lost their case both at the High Court; and on appeal to the Supreme Court. However, since the Ibusa people did not counter-claim for a declaration of title to the land in dispute, none was declared in their favour. Consequently in 1966, the Ibusa people as plaintiffs took out a fresh action against the Ogwashi- Ukwu people as defendants on the same land in these terms:-

“(a) A declaration that the boundary between the plaintiffs of Ibusa and the defendant of Ogwashi-Uku is at Ubu Stream and in accordance with the boundary as represented on Plan NWC/102/70 by life trees on the North-West of the land in dispute and verged GREEN on the said plan.

(b) A declaration of title to the piece and parcel of land known as Ani Umuezemesa and comprising other smaller portions of land as shown in the plaintiffs’ plan and verged GREEN on the said plan.

(c) 300 for trespass to the plaintiffs land known as “Ani Ezemesa” of smaller parcels known and called Ibulu-Ibu, Adagba, Oloki, Etekuehe, Alagbo Elue and Akwu Ukwa.

(d) Injunction to restrain the defendant, his servants and/or agents from further acts of trespass or interference with the plaintiffs’ possession, ownership, use and enjoyment of the said land.”

In their Amended Statement of Claim the plaintiffs pleaded the boundaries of their land and the acts of ownership exercised thereon in paragraphs 4, 5 and 6 thereof; but they did not specifically plead their traditional history therein. Rather, they pleaded the facts and findings of the proceedings and judgment of the 1962 Cases in paragraphs 7 and 10 thereof.

It is significant that in their own Amended Statement of Defence the defendants pleaded in paragraphs 16 – 23 thereof another traditional history different from the one relied upon in the 1962 cases. Moreover, they denied that they were parties to those cases.

Finally, they also joined issues with the plaintiffs on the ownership of the land in dispute in paragraph 12 of their Amended Statement of Defence.

At the trial, the plaintiffs on the one hand testified substantially in support of the averments in their Amended Statement of Claim and tendered the proceedings and judgment in the 1962 Cases as Exh. F. Even though they did not specifically plead afresh their traditional history, the 1st Plaintiff – Obi Nkadi Onwardi – in answer to questions under cross-examination confirmed that he was a party to the 1962 Cases, and also gave their own traditional history. He said:-

“I was a party in Suits Nos. 8/44/62; 8/46/62 and 8/47/62. I was the plaintiff in those cases. I know that towns like Asaba, Ibusa and Ogwashi-Uku were founded by one person at a time. Ogwashi-Uku was founded by a man called Odaigbo. I knew how he came to Ogwashi-Uku.

Ezemese kept Ogwashi-Uku people where they now live. We were first people to settle in that area and Ezemese gave Ogwashi people the land they now occupy. He showed them the boundary. Ogwashi came from Nshi and Ezemese came from Isu, in Anambra State.

They were neighbours in their places of origin.

Umejei founded Ibusa; he was a prince of Isu who came to Ibusa to settle. It was Umejei who came before Odaigbo; and Umejei’s children had in fact established the quarters at Ibusa before Odaigbo and Edini came at the same time. The spiritual head of Ibusa is the Senior Diokpa although there are ten Diokpas at Ibusa Ogboli was never called Ogboli-Ogwashi; the people in that quarter at Ibusa are known as Ogboli-Nshi. Ogboli came from Nshi which was the home place of Odaigbo. They came to meet the descendants of Umejei on the land.”

The defendants on the other hand, also testified in support of the averments in their Amended Statement of Defence. Of significant importance was the evidence of D.W.6 – Justus Dikede Mordi, the Ihaza (Chief) of Ogwashi-Ukwu – who was the defendants’ star witness. He not only testified about the defendant’s new traditional history; but he also gave evidence in support of their claim. But under cross-examination, he made the following admissions:-

“I remember that in 1962 Ogwashi-Uku people sued Ibusa and the latter counterclaimed against Ogwashi- Uku people and three cases, Suits Nos. B/44/62, B/46/62 and B/47/62 were consolidated. Our plans in those cases were prepared by late Mr. George Obianwu – a Licensed Surveyor. That plan is Exhibit ‘J’ in this case. In the consolidated cases the Obi of Ogwashi-Uku gave evidence. The Obi would only know some Ogwashi-Uku Traditional history. OgwashiUku people lost those cases. We appealed to the Supreme Court and lost. When late Mr. George Obianwu was preparing our plan, we showed him everything he should put on the plan.”

Furthermore the Defendant – Obi Izediuno Ezewani I, the Obi of Ogwashi-Uku-also testified in support of the defendants’ claims and made admissions as follows:-

“I know Chief J.D. Mordi (6th D.W.); he is one of my Chiefs. He is in charge of Odonkwu land; he is also in charge of Ogbakwu quarter. He supervises the tenants in Odonkwu area; he is the Ihaza of Ogwashi-Uku. Odonkwu land is in the bush in Ogbankwu area.

I have been on the throne since 1934. I was born on 12th November 1906. Today is my Birthday.

I know the plaintiffs; they are from Ibusa. The people of Ibusa used to bring yams to me through D.W. 6 when they farmed on my land; they also brought Palm-wine, fish and Kola-nuts. They stopped bringing tributes to me in 1946.

XXD BY BALONWU: In 1962 I sued the people of Ibusa over this land in Suit No.B/44/62 and B/46/62. They also sued me in Suit No., B/46/62. I gave evidence in those cases which were consolidated. I gave evidence on the traditional history of our people. It is the Ihaza who tells me everything about the land.”

It is thus clear from the evidence adduced at the trial that the defendants were aware of the traditional history relied upon in support of the plaintiffs’ claims (which was the same one used in the 1962 Cases); and inspite of their denial, it became crystal clear that they were parties to the 1962 Cases which were in respect of disputes on ownership to the same land, between the same parties.

The learned trial Judge after considering the evidence adduced by both parties and the addresses of learned counsel came to the following conclusions;-

(a) On the question of proof of boundaries, the learned trial Judge having reviewed and considered the evidence adduced by both parties, believed those of the plaintiffs while he disbelieved the testimonies of the defendants. Particularly, he contradictions between the evidence of D.W.1- Udeh Iwenofu- and D.W. 6 – Justus Mordi – on that issue, and concluded thus:

“I have set out fully the evidence of these two defence witnesses in order to expose the contradictions in their evidence with regard to the boundary features on their land, bearing in mind the nature of the reliefs sought by the plaintiffs in this action. It was difficult to know the land which Chief Mordi was describing, and in any case it could not be the land claimed by the plaintiffs. I can also not see how the land in the imagination of Udeh Iwenofu (D.W.1) agreed with that of the Ihaza of Ogwashi-Uku, who I am told was the Chief in-charge of Odonkwu land. It is sufficient to conclude this portion of the judgment by finding and holding that I do not believe the evidence of these two witnesses with regard to their boundary evidence. Even their tenant, Jeremiah Okeke (D.W.5) righteously confessed ignorance of the boundaries of Odonkwo land. I am fortified in the view I have taken of the falsity of their evidence as it had no tangible bearing on the plans produced by them either in this or other cases against Ibusa people. I am far more convinced by the direct evidence of boundary given by the plaintiffs and which was borne out of their witnesses with regard to the entire area of Ani-Umuezemesa land of Ibusa than the unestablished area claimed by the defendant.”

(b) On the issue of traditional history, the learned trial Judge also after considering the evidence of traditional history led by both parties at both the 1962 Cases and in this case came to the following conclusions:-

“Again, Iam far more impressed with the traditional evidence of Ibusa people than that of the defendant, and at no time could Umejei and his wife be slaves of anybody, needless to say of Adaigbo who owned no slaves. Although traditional evidence is of oral nature, there is no fundamental basis or available material for the view held by Ogwashi-Uku people about their closest neighbours, the Ibusa Community. What strikes me as rather strange is that although the people of Ogboli Quarter are their blood relations nobody from that quarter came to Court to testify for the defendant. That in my opinion, could not be said to be favourable to Ogwashi-Uku people.

Further, I am not convinced at all that there was any time the plaintiffs as a people, took tributes to the Obi of Ogwashi-Uku for farming on the lalter’s land. It could be possible that a few Ibusa men who went beyond the boundary line did so, but that could not be held that the plaintiffs had thereby become tenants of the defendant’s community. That evidence was invented but it was always rejected in all the cases between the two Communities. This shows that the defendant’s Community desperately invented materials to support a non-existent claim to Ibusa land. ”

(c) The learned trial Judge also considered the effect of the judgment in the 1962 Cases in which the defendants lost to the plaintiffs up to the Supreme Court; (See Exh. F) and he observed that the judgment estopped the defendants from relitigating the issues of traditional history as well as ownership of the same land in dispute between the same parties. Then he said:-

“Independent of my own findings in this case, and having regard to the fact that Odugba or Odonkwo land formed part of the areas of land in dispute in this case, I cannot see how it is possible to set aside those findings in Exh. ‘F’ which were fully supported by evidence and which evidence was similarly canvassed and accepted by me in the instant case”

And finally he dismissed the plaintiffs’ claim for trespass, but gave judgment for them for the declarations sought as well as for an injunction.

I have gone to this length in setting down the issues decided by the learned trial Judge in order to show that he did not decide the case between the parties on the issue of traditional history alone; but he also considered the preponderance of evidence led by the parties for the proofs of boundaries and act of possession and ownership.

The defendants thereafter appealed against that decision to the Court of Appeal in Benin City; but the appeal was equally dismissed. The judgment of the trial court was therefore affirmed.

Against that judgment, the defendants (hereinafter referred to as the Appellants) have appealed to this court on the following grounds:-

“1. The learned Judges misdirected in law themselves in holding that the plaintiff/Respondents pleaded traditional history by mere reference in their statement of claim to the judgment and record of proceedings in an earlier case.


The doctrine of incorporation by reference is alien to pleadings in that it defeats the main purpose of pleadings – namely to set before the court and the parties, on the face of the pleadings, grounds and facts upon which the claim or defence is based.

Misdirected (sic) in Law:

The Court of Appeal misdirected itself in law holding that the complaints of the Appellants against the judgment of the learned trial Judge on the issue of traditional evidence was irrelevant and that the traditional evidence was properly raised by the pleadings of the Respondents when:-

(i) the plaintiff/Respondents had in fact led oral evidence on their traditional evidence without having pleaded the same;

(ii) the learned trial Judge had in fact made findings of fact on the traditional evidence independently of the judgments as pleaded as res judicata:

(iii) plea in respect of traditional evidence not placed on Record in the present suit cannot be deemed to have been incorporated by reference to the consolidated suits merely because traditional evidence was given by both parties in those consolidated suits.

  1. The learned Judges of the Court of Appeal misdirected themselves in holding that “the judgment of the learned trial Judge has not been faulted” whereas:-

(1) the learned trial Judge merely based his judgment on evidence in earlier decisions on the issue of traditional history but failed to consider the lack of evidence by the plaintiff/Respondents to establish their continued ownership of the land in dispute. as if evidence of traditional history alone was sufficient to discharge the burden on the plaintiff/Respondents,

(2) the learned trial Judge failed to consider the judgment of the Warri High Court in Suit No. AW/6/1935 between the plaintiff/Respondents and the Defendant/Appellant, which was confirmed by the West African Court of Appeal on the 13th day of January, 1937 wherein the plaintiff/Respondents failed to maintain an action against the Defendant/Appellant for declaration of title to the same piece of land “Odonkwo”,

The plaintiffs will also hereinafter be referred to as the Respondents.

Emanating from ground 1 (the only one argued), the following issues are relevant for determination in this appeal namely:

(i) Did the respondents plead their traditional history in this action

(ii) If the traditional history was not pleaded, was the trial court entitled to consider it and give judgment on the basis of the evidence led on traditional history by the respondents merely because it had been considered in a previous Suit between the parties

(iii) Was the action decided by the trial court on other grounds apart from proof of traditional evidence

Mr. G. O. K. Ajayi S.A.N, learned counsel for the appellants said that the respondents failed to plead their traditional history in this case; but they merely averred in paragraph 10 of their Amended Statement of Claim that they would rely on the findings of fact on the traditional history pleaded in the 1962 cases, mentioned in paragraph 7 thereof. He then submitted that because of that, any evidence led and based on that traditional history, including those given by the 1st respondent under cross-examination, went to no issue. Consequently, he argued that the learned trial Judge was in error to have considered the traditional history of the respondents, and to have made findings upon them to the detriment of the appellants. Furthermore, Mr. Ajayi contended that, if the respondents were raising the issue of traditional history in the 1962 Cases as “issue estoppel” which could have estopped the appellant from raising it anew in this case, they should have specifically pleaded it as such. He further submitted that since they failed to plead specifically the facts upon which that issue estoppel could be raised, the learned trial Judge should not on any account, have held that the issues of traditional history between the parties have been settled in the 1962 cases. Finally, Mr. Ajayi submitted that since the learned trial Judge made copious findings on the traditional history given in the 1962 Cases which were adverse to the appellants; and those findings were confirmed by the Court of Appeal, there had been grave misdirection on the facts by those two Courts. He therefore urged this Court to allow the appeal. In reply, Chief F.R.A. Williams (S.A.N.), learned Counsel for the respondents, first observed that the appeal before this court is one against the judgment of the Court of Appeal. Hence, this Court should primarily be concerned with the judgment of that Court. He then drew attention to the basis of the decision of that Court at page 152 lines 10 to 33 of the Record which concentrated on “issue estoppel” on the question of traditional history pleaded and decided in the 1962 cases. Chief Williams therefore submitted that the effect of that finding of the Court of Appeal was that both parties were wrong in giving evidence again on traditional history; and in trying to relitigate the issue which had already been decided. He pointed out that the respondents had pleaded in paragraphs 7 and 10 of their Amended Statement of Claim the facts and findings on the question of traditional history as decided in the 1962 Cases; and that they were relying on those facts and findings. After citing the decision of this Court in Mogo Chinwendu v. Nwanegbo Mbamali and Another (1980) 3-4 S.C. 31, Chief Williams finally submitted that once it was pleaded in this case that there were judgments of the High Court and the Supreme Court on the issue of traditional history which was a matter of facts and not evidence, the appellants were estopped from relitigating the question in this case. He then urged the court to dismiss the appeal.

In summarising the submissions of learned counsel for both parties, it seems to me that the gravamen of Mr. Ajayi’s complaint is that the respondents did not plead their traditional history in this case; nor did they even plead it specifically as an “issue estoppel; and that since they failed to do so, the learned trial Judge and indeed the Court of Appeal erred to have considered it, let alone to have made findings of facts on it adverse to the appellants.

However, Chief Williams’ contention was that the respondents need only plead facts and not evidence; and that since they had pleaded the facts and findings of the judgments of the 1962 Cases, which had decided the issue of traditional history against the appellants, they (the appellants) were estopped from relitigating that issue in this case. What then is the position of the matter

Even though the appellants denied being a party to the 1962 cases, their witnesses – D.W. 6 and the Defendant admitted that they were; and that the decision in the cases went against the appellants. It was also not in dispute that in the 1962 cases, both parties contested the issue of ownership of the land in dispute; and relied heavily on their traditional histories to prove it. All those facts were pleaded by the respondent in paragraphs 7 and 10 of their Amended Statement of Claim as follows:-

“7. Sometime in 1962 the defendant claimed portions of the land in dispute and brought action in Suits B/44/62 and B/47/62. The plaintiffs sued the defendant in B/46/62 for some portions of the land in dispute. The three suits were consolidated and tried in the High Court at Asaba. The defendant lost and appealed to the Supreme Court and his appeal was dismissed, the plaintiffs will rely on the judgment and the record of proceedings of the above suits and the F.S.C. Judgment SC.272/1966.”

  1. In the consolidated suits both the plaintiffs and the defendant gave and relied on their traditional history. The learned trial Judge found as a fact that Ubu stream is the natural boundary between the plaintiffs and the defendant. The plaintiffs will rely on these findings of facts.”

And as I have said elsewhere in this judgment the appellants admitted the facts of those judgments which decided the issue of traditional evidence against them. Indeed the learned trial Judge in the 1962 cases, said:

“I find it extremely difficult to reconcile the plaintiffs’ (that is, the Ogwashi-Uku people’s) traditional history with the truth and I disbelieve it.” (see page 110 lines 27-28 of Exh. F).

Having regard to those circumstances it was therefore unnecessary to plead afresh the traditional history of the respondents. The issue had already been decided in the 1962 cases; and it had become an issue estoppel as pointed out by Idigbe, J.S.C. in Samuel Fadiora & Anor. v. Festus Gbadebo & Anor. (1978) 3 S.C. 219. In that case the learned Justice of the Supreme Court while discussing the differences between the principles of “cause of action estoppel” and “issue estoppel” as estoppel by record inter partes, had these to say at pages 228 to 229:-

“Now, there are two kinds of estoppel by record inter partes or per rem judicatam, as it is generally known. The first is usually referred to as “cause of action estoppel’ and it occurs where the cause of action is merged in the judgment, that is, Transit in rem judicatam (See King v. Hoare (1844) 13 M & W495 at 504). Therefore, on this principle of law (or rule of evidence) once it appears that the same cause of action was held to lie (or not to lie) in a final judgment between the same parties, or their privies, who are litigating in the same capacity (and on the same subject matter), there is an end of the matter. They are precluded from relitigating the same cause of action. There is, however, a second kind of estoppel inter partes and this usually occurs where an issue has earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in these circumstances, “issue estoppel” arises. This is based on the principle of law that a party is not allowed to (i.e. he is precluded from) contending the contrary or opposite of any specific point which having been once distinctly put in issue, has with certainty and solemnity been determined against him. (See Outram v. Morewood (1803) 3 East 346). Issue estoppel applies whether the point involved in the earlier decision is one of fact or law or one of mixed fact and law. However, for the principle to apply, in any given proceedings, all the pre-conditions to a valid plea of estoppel inter partes or per rem judicatam must apply, that, (1) the same question must be for decision in both proceedings (which means, that the question for decision in the current suit must have been decided in the earlier proceeding), (2) the decision relied upon to support the plea of issue estoppel must be final (3) the parties must be the same (which means that parties involved in both proceedings must be the same) (per se or by their privies).”

For the above reasons, I entirely agree with both the learned trial Judge and the Court of Appeal that the issue of traditional history having been previously decided in the 1962 cases between both parties in this appeal, and on the same land in dispute, against the appellants, it has become an “issue estoppel”. Hence the appellants were estopped from relitigating the issue in this case.

But being an issue estoppel, must it be specifically pleaded as estoppel before it could be raised Was it not sufficient to plead the facts and findings in the judgment of the court on which the issue could be founded

While I will answer the first question in the negative, I will however answer the second in the affirmative. This point came for consideration in a decision of this court in Mogo Chinwendu v. Nwanegbo Mbamali and Another (supra) where again Idigbe, J.S.C. observed as follows:-

“This appeal turns, in the main, upon the true and real effect of estoppel per rem judicata, 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 having 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. “(The italics are mine)

As I save said earlier on, the respondents need not plead the issue of traditional history specifically as an “issue estoppel”. They have already pleaded in paragraphs 7 and 10 of the Amended Statement of Claim sufficient facts on which the issue can be founded; and that was enough in my view.

However, the learned trial Judge did not find the claims of the respondents proved on the evidence of their traditional history alone; but he also considered the evidence adduced on the question of boundaries and acts of possession and ownership exercised by them. And in conclusion, he said:”

As said earlier in this judgment I accept and believe the evidence of 1st and 2nd Plaintiffs and that of their witnesses with regard to their traditional history, and the description of their boundary with the defendant. I also believe their evidence that they actually carried out various acts of ownership and possession with regard to the various portions of the land comprised in what they described as ANI UMUEZEMESA land, Ibusa.”

With that conclusion, it is therefore not surprising that the Court of Appeal dismissed the appeal and affirmed the decisions of the High Court dated 22nd February, 1980. Accordingly, I will also dismiss the appeal and affirm the decision of the Court of Appeal dated 10th July, 1984 with N300.00 costs to the respondents.


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