Okafor Adone V. Ozo Gabriel Ikebudu & Ors (2001) LLJR-SC

Okafor Adone V. Ozo Gabriel Ikebudu & Ors (2001)

LAWGLOBAL HUB Lead Judgment Report

AYOOLA, J.S.C.

This is an appeal from the decision of the Court of Appeal (Ejiwunmi, JCA (as he then was), Tobi and Adamu, JJ.C.A, dismissing the appeal of the appellants from a decision of the High Court of Anambra State whereby the appellants’ claim against the respondents for a declaration that they are “the rightful people” for the grant of customary right of occupancy to land coloured pink on a plan MEC1205/80 damages for trespass and injunction was dismissed.

In the High Court, the appellants relied on traditional evidence and acts of ownership for their claim. They averred that the land which was part of a larger piece of land belonging to the plaintiffs known as Mgbenu Awani Ire and more particularly delineated and coloured blue on the plaintiffs’ Plan No. MEC/205/80 attached to the statement of claim, was founded by their ancestor, Ire, and that by succession, it devolved on the community consisting of the 6 quarters representing his six children and thereby became communal property of the six quarters of Ire village. They averred, further, that the land known and called “Mgbenu Awani Ire Land” had been owned and cultivated by them from time immemorial and, that they performed other acts of ownership such as, burying their dead and building market stalls on it. They alleged that the respondents, sometime in April, 1980, destroyed a poultry building and com crops on the land. They then instituted the action which spawned this appeal. In their statement of claim as finally amended, they averred that the respondents (as plaintiffs) sued them over the same land and lost. They gave notice that: “The plaintiffs in the current case would plead the said suit, No. AA/23/71 and will rely on the said suit” and on a Plan No. MEC/98/72 used in that suit.

The original defendants who are 1st – 3rd respondents, and the joined defendants, who are the 4th to 6th respondents, in this appeal denied that the land in dispute, which is the area edged “pink” on a plan MEC/205/80 attached to the appellants’ statement of claim “is owned, or has ever been owned” by the plaintiff or that it was a part of a larger parcel of land belonging to the plaintiffs and called Mgbenu Awani Ire. They averred that the land fell within the land originally owned in common by the family of Umuriam Obunese which, following “successive sharing of progenitors land in accordance with custom now comprises lands allotted to descendants of Oguno and are specifically dwelling lands allotted to Lazarus Chinwuko, Edward Chinwuko and Ikechukwu Okeke Oguno”.

These persons mentioned were the 4th to 6th defendants joined by order of the High Court. They averred occupation of contiguous lands and land within the area in dispute in paragraphs 8, 9, 6, 13 and acts of ownership in paragraphs 16 and 17. The joint statement of the 4th – 6th respondents was on similar lines. The respondents averred that the area in dispute in suit No. AA/23/71 in which the original defendants herein were plaintiffs, was the area verged “green” on their plan MG/AN.423/81 and on the 4th – 6th respondents’ plan No. MG/AN.423A/85. It was the respondents’ case that the area then in dispute is different from that in dispute in the present proceedings.

At the trial, the appellants relied on the decision in the previous suit (“the 1971 suit”) as constituting issue estoppel. In the 1971 suit they were the defendants and the respondents’ family were the plaintiffs. In the 1971 suit, the present respondents family claimed against the present appellants “declaration of title to land known as Owelle Amadi and shown verged pink in plan No. OKE/D31/72”, possession of the land and damages for trespass. They relied on traditional evidence and acts of ownership in support of their claim. As shown by the judgment of the High Court Aseme, J. (as he then was) in the case the two main issues in the case were:

“(1) whether the plaintiffs are owners of the land in dispute verged pink on Plan Exhibit A and the defendants their customary tenants thereof.

“(2) whether the plaintiffs challenged the defendants when the building which was later leased to Multi Co-operative Society, they being erected by the defendants on the land in dispute.”

Aseme, J., observed that the land in dispute formed part of a larger piece of land which both sides claimed to be their own and that “pursuant to this, both sides have shown on their respective plans, various acts of possession or ownership within this greater piece of land apart from the land in dispute.”

But he cautioned that:

“apart from these alleged acts, any consideration regarding the area outside the land in dispute verged pink in Exhibit A would be going outside the scope of the claim and issues joined by the parties ….”

He found specific acts alleged by the respondents (then plaintiffs) not proved. Such were: the use of portion as burial ground, farming on the land “immediately outside the land in dispute”, and some buildings on the land. At the end, the learned Judge found that “the plaintiffs never exercised those acts in enjoyment of the area surrounding the land in dispute as they contend.” As for a Multi-Purpose Co-operative Society building, he found that the present appellants exercised acts of ownership over the building ‘nee clam nec precario’ before the outbreak of the Nigeria civil war.

As for evidence of tradition, Aseme, J., found “the testimony of the plaintiff on the issue of tradition concocted.” He therefore dismissed the claim to the land then in dispute by the present respondents. Aseme, J’s judgment was confirmed by the Court of Appeal.

In the present proceedings the defendants in the 1971 suit were plaintiffs. At the High Court they contended that the present proceedings and the 1971 suit were in respect of the same land. The area in dispute in the present proceedings is that area shown on the plan No. MEC/205/80, admitted in evidence as Exhibit A. The area in dispute in the 1971 case was shown on the respondents’ plan No. MG/AN.423A/85 tendered as Exhibit H and verged green thereon. The respondents’ surveyor (DW4) said in his evidence that he super-imposed Exhibit A on his own plan Exhibit H and that it was easy for him to mark out the area cause of action verged red in Exhibit and that it is pink in Exhibit A.

The trial Judge found that the area litigated on in the 1971 suit is different from the land in dispute in the present proceedings and that, therefore, res judicata could not be relied on “for ownership of the land now in dispute.” He then proceeded to consider the evidence of tradition and acts of ownership. He found that the evidence of traditional history adduced by the appellants was vague and incomprehensible and unrelated to features inserted in Exhibit A. On evidence of acts of ownership, he was of the opinion that the appellant’s witness “merely referred to enjoyment of economic crops and farming without specifying the area involved.” He observed that only act of ownership mentioned was the lock-up store, not shown in Exhibit A and, that the poultry house destroyed was also not inserted in Exhibit A by the licensed survey PW 4. It was clear from his findings that on the preponderance of evidence he considered the respondents’ case more probable. He found that:

“Evidence given tilts in favour of the defendants who have established by various acts of ownership that they have been in possession of the land in dispute for over twenty years.”

In the event, he dismissed the action because as he put it:

“Putting in focus the authorities cited above and evidence adduced, the answers to the questions raised earlier in this judgment are in the negative for res judicata cannot apply and no credible evidence has been given to support acts of ownership or passed the litmus test propounded (sic: propounded) in relation to traditional history to warrant judgment for plaintiffs.”

The appellants appealed from the decision of the High Court to the Court of Appeal raising two main issues, namely; (1) whether the judgment in the 1971 suit did not constitute issue estoppel with respect to the entire land verged blue in Exhibit A so as to avail the appellants; (2) whether the judgment was not against the weight of evidence.

The Court of Appeal dismissed the appellants’ appeal. In the leading judgment delivered by Adamu, JCA, with which the rest of the court agreed, the learned Justice of the Court of Appeal held that both res judicata and issue estoppel did not avail the appellants and, that as their case virtually rested on the question of res judicata the second main issue must be resolved against them.

On this further appeal, the only issue is whether the court below was right in holding that issue estoppel did not avail the appellants. Learned counsel for the appellants put the appellants’ case on this appeal this way in the appellants’ brief:

” ….the appellant argues that in suit AA/23/71 Exhibit C the main/principal claim of the respondents against the appellants is that as owners of the land in dispute in Exhibit G they have been in (sic) the land in dispute from time immemorial who granted customary tendency to the appellants …. thus the issue which was joined between the appellants and the respondents in Suit No. AA/23/71 was whether the appellants or respondents were the owners of the land in dispute in Exhibit Band G respectively.”

It was contended that in the resolution of that issue, Aseme, J., (as he then was) made “Far reaching findings of fact on ownership and acts of possession.” Some of the findings, highlighted, were that the present respondents (then plaintiffs) “never exercised those acts in enjoyment of the area surrounding the land in dispute as they contend”; that he did not form the impression that the respondents’ people ever farmed on the land immediately outside the land in dispute. That the appellants (then defendants) in 1963 commenced to build lock up stalls within the land in dispute; that the respondents not being in possession of the land, the claim for trespass was misconceived; and, that the testimony of the respondents on the issue of tradition was highly unconvincing and unreliable. In the submission of learned counsel for the appellants, from all these findings:

” …..on a proper interpretation of the judgment in suit AA/234/71 Exhibit C decided that it was the appellants and not the respondents who were in possession and owners of the land in dispute of the land (sic) notwithstanding the fact that the appellants did not counterclaim in the suit, and that issue estoppel as far as title to the land was concerned operated against the respondents in the present suit.”

It was further argued that Aseme, J., settled the issue of ownership, possession and acts of ownership not only in respect of the land in dispute in Exhibit A and G but farming in surrounding lands and in favour of the appellants. It was submitted that what was put in issue in the 1971 suit was title to the land denoted in Exhibit Band G in the present suit and that there being identity of subject-matter and parties res judicata availed the appellants by virtue of the judgment of the High Court and the Court of Appeal in the 1971 suit, respectively Exhibits C and D in the present proceedings.

In agreement with the trial High Court and the Court of Appeal, the substance of the argument of counsel for the respondent is that, the subject matter of the two suits were not the same and that consequently, res judicata, of whatever specie, did not avail the appellants. Learned counsel for the respondents referred to the appellants’ brief in the court below in which it was conceded that the lands in dispute in the two suits were not the same.

The distinction between cause of action estoppel and issue estoppel is long standing and has been pronounced upon in several cases coming before this court. Both are regarded as specie of the doctrine of res judicata. In Ukaegbu & Ors. v. Ugoji & Ors. (1991) 6 NWLR (Part 196) 127 at 168 Akpata, JSC, stated the distinction between the two thus:

“The classification of estoppels under estoppel by judgment is related to the purpose for which the judgment is used. If it is intended to be used to prevent another suit founded on the same cause of action as the original suit, the decision in the original action is said to constitute res judicata. If, on the other hand, the subsequent proceedings are based on a different cause of action …..as in the instant case, issue estoppel can operate only to prevent certain issues which were decided in the original action from arising for further consideration by the court. See also, Idigbe, JSC, in Fadiora & Anor. v. Gbadebo & Anor. (1978) 3 SC 219.”

This prefatory reference to the distinction between cause of action estoppel and issue estoppel is indicative of the character of estoppel that is relevant to this appeal and draws attention to the need for proper pleadings when a plaintiff seeks to rely on the judgment in a previous action. Progressive condonation of laxity in matter of pleadings by courts can only obfuscate the issues in a case and make determination of cases more tedious than it should be in a system of pleadings.

Normally, the place for raising the plea of estoppel is in the defence where the cause of action estoppel is raised as a defence to the plaintiff’s action. (See Yoye v. Olubode & Ors. (1974) 10 SC 209,222; (1974) 1 All NLR (Pt.2) 118;Sosan v.Ademuyiwa (1986) 3 NWLR (Pt.27) 241.) A plaintiff who seeks relief from the court in an action is not expected to raise the self-defeating plea that the same cause of action has been conclusively determined and has merged in the judgment in a previous action. Where the specie of res judicata relied on by a plaintiff is issue estoppel the proper place for a plaintiff to raise the question is in the reply to the statement of defence after the issues arising in the case up to the stage of defence would have been ascertained and the plaintiff would be in a position to know and state with clarity the issues he would contend the defendant is precluded from raising by virtue of the judgment in a previous action. Where he chooses to raise it in his statement of claim he should do’ so with particularity, stating the facts and circumstances relied on and the facts which the defendant ought not be admitted to deny. The proper manner of such pleading has been put in Bullen & Leake & Jacob’s Precedents of Pleadings (13th ed.) at p. 1148 thus:

“The plea of estoppel can only be raised in the manner of defence, but it could appear in the statement of claim, e.g. to found an ‘estoppel by convention’. It usually contains the allegation, either before or after stating with full particularity the facts and circumstances relied on, that the opposite party ‘is estopped from saying’ or ‘not to be admitted to say”’.

For the plaintiff to purport to raise issue estoppel by his statement of claim without particularity leads to speculation and uncertainty as to what issue the defendant is to be precluded from raising. It is because the appellants merely pleaded in this case that the “plaintiffs in the current case would plead the said suit No. AA/23/71 and will rely on the judgment of the said suit and on the said plan No. MEC/98/72 dated 18/11/72” that much confusion had risen at the trial and on the appeal, not only as to the specie of res judicata that is said to have been pleaded but also, as to what issue it was later contended the respondents were to be precluded from re-litigating. It was by reason of this state of pleadings that the learned trial Judge could not go beyond holding that:

“the principle of res judicata cannot be relied upon by the plaintiffs for ownership of the land now in dispute as it is quite a different land litigated upon in Exhibit C & D and further more the dismissal of current defendants’ case in suit No. AA/23/71 in which they were plaintiffs does not confer ownership of the land in Exhibit G to present plaintiffs.”

The Court of Appeal, apparently out of abundance of caution, considered both species of res judicata, trying the best they could, in regard to issue estoppel, to fathom what the issues were that the respondents were to be precluded from litigating. It was in this con that Adamu, JCA, who delivered the leading judgment of that court said: ” ….. I must first of all indicate that in his address at the lower court the learned counsel for plaintiffs/appellants stated that they were using the previous judgment of 1971 suit against the defendants/respondents for the issue of traditional history (see page 141). However in the appellants’ brief (at page 18) it is stated that:

‘On the state of the pleadings as shown issues were joined, principally on the identity of land in dispute in the 1971 and the present suits. “I will accept the above version from the brief as correct and take it that the purpose for which the plaintiffs appellants sought to use the previous judgment of 1971 suit as an issue estoppel was to preclude the defendant/respondents from either pleading or adducing evidence on the identity of the land in dispute which had been settled in the said previous judgment. ” (Emphasis mine)

Now on this appeal, as has been seen, the appellants say the issues that the respondents should be estopped from raising are as to ownership and acts of ownership. This, surely, is an unsatisfactory state of affairs which would have been avoided had there been sufficient adherence on the part of counsel to and, firmness on the part of the trial court in enforcing, the rules of pleadings.

Be that as it may, I turn to the substance of the appeal as argued. There is considerable force in the submission of counsel for the respondents, that the land in dispute in the 1971 suit and that in the present proceedings are not the same. I do not see how the appellants could, with any justification, contend to the contrary on this appeal, when, in the court below, they were emphatic in the brief filed on their behalf, as pointed out by counsel for the respondents, that: “In this present case, the appellants who were defendants in the 1971 suit are themselves suing for title with respect to a different piece of land.” (Emphasis is mine). A party should not be allowed to set-up different cases at different stages of the proceedings, from the trial court, through the intermediate appellate court, to the final appellate court.

Since the lands in dispute in the two suits are not the same, counsel for the appellants tried to show what issues determined in the 1971 suit the respondents should be precluded from relitigating in this case. It is common ground that, since the appellants were, defendants in the 1971 suit and did not counter claim in the suit nothing was awarded them in that suit. The law is clear and without peradventure that, in an action for declaration of title to land the plaintiff succeeds on the strength of his case and not on the weakness of the defence: Kodilinye v. Odu (1935) 2 WACA 336. That a plaintiff in an action for declaration of title failed to prove the title he claims, either by traditional history or by acts of ownership, is not tantamount to such finding as would preclude the plaintiff in a subsequent action for declaration of title to land, in which he is the defendant, from denying the title of the plaintiff who was defendant in the previous action. The essential finding where a plaintiff claims declaration of title to land is whether the evidence of traditional history adduced by him is accepted or not. In regard to acts of ownership, that the plaintiff has failed to establish acts of ownership sufficient to establish the probability of his title to the land he claims, does not logically translate to a finding that the defendant who has not counter-claimed has proved such acts of ownership as would lead to the probability that he owns the land.

In this case, the findings highlighted by counsel for the appellants cannot reasonably be held to preclude the respondents from denying that the appellants exercised such acts of ownership in regard to the land in dispute or land related thereto by contiguity as to raise the probability that they were owners, particularly, of land different from that litigated upon in the previous suit. Although Aseme, J., did observe that the land in dispute formed part of a larger piece of land which both sides claimed to be their own, he was careful to confine his consideration of the case to the land in dispute, for, he said:

“any consideration regarding the area outside the land in dispute verged pink in Exhibit A would be going outside the claim and issue joined by the parties. ” (Emphasis mine)

Besides, learned counsel for the respondents was right when he argued that in their pleadings in the present suit, the appellants did not plead as they argued in their brief in the court below, that “the present cause of action forms part of their larger piece of land which was the subject of the 1971 suit wherein the respondents as plaintiffs lost,” or that: “The judgments were pleaded to show that they were delivered with respect to the entire land verged blue in the two plans of which the present cause of action forms part.” No doubt the appellants appreciated, albeit very late in the day, the deficiency in their pleadings and, they tried to rectify the deficiency in their arguments. However, pleadings are not amended by address of counsel nor, a fortiori, by arguments of counsel on appeal. It was not an issue in the case that the judgment in the 1971 suit decided any question of ownership beyond that put in issue by the respondents in respect of the land they claimed in that suit. All these considerations put the case outside the principle in Ladega v. Durosimi (1978) NSCC 174, (1978) 3 S.C. 91, where this court held that where issues are joined before the court in regard to a larger area, whereas the claim for declaration of title is in regard to a smaller area, and those issues are determined by the court, those issues will create an issue estoppel in a subsequent litigation between the same persons over the larger area.

An issue of fact may be proved by an aggregate of facts. Where the aggregate of facts relied on to establish an issue of fact is insufficient, that issue must be resolved against the party who has to establish the issue. The issue of fact in the 1971 case was whether by reason of acts of ownership averred by the respondents as plaintiffs in that case they were owners of the land they claimed. That issue was resolved against them. They are precluded from raising that same issue as between themselves and the appellants in respect of the same land. But that is not the same as saying that when in their turn the appellants, now plaintiffs, raised a similar issue, the respondents, now defendants, are precluded from insisting that they must establish such aggregate of facts as would justify a resolution of the issue in the appellants’ favour, particularly in regard to a different parcel of land.

The learned counsel for the appellants misinterpreted the judgment in the 1971 suit when he argued that, it determined that the appellants were in possession and owners of the land in dispute notwithstanding that they did not counter-claim in that suit. I feel no hesitation, in agreement with the court below, in holding that res judicata of whatever specie does not avail the appellant.

Learned counsel for the appellants took one final point in the alternative. He argued that should we hold that res judicata does not avail the appellants, we should, nevertheless, hold that the appellants who have been found to be in possession of the land in dispute and enjoying the use and possession of surrounding lands cannot be deprived of such use and possession. Quite apart from the fact that the lands in the two suits are not the same and that the purport of the findings in the judgment in the 1971 suit has been misunderstood and exaggerated, a dismissal of the appellants’ case does not ipso facto lead to an order that they should cease to enjoy the use and possession of land since the respondents in this appeal have not counter-claimed for any such relief in the case.

For the reasons which I have given, the appeal fails entirely and is hereby dismissed with N10,000.00 costs to the respondents.

SC.140/1996