Okwudu Nwakonobi & Ors. V. Benedict Udeorah & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C.

This is an appeal by the plaintiff’s (now Appellants) against the judgment of the court of Appeal, Enugu Division delivered on 25/4/2002 allowing the appeal of the defendants (now the Respondents) from the decision of Amaizu (J) as he then was) sitting at Otuocha Division of the High court of Anambra state delivered on 25/9/98.

Dissatisfied with the decision of the court of Appeal, the Appellants have appealed to this court on three grounds by Notice of Appeal dated 18/7/2002 and filed on 22/7/2002.

The facts of the matter leading to this appeal are simple. Appellants commenced the action in a representative capacity against the 1st -5th respondents also in the same capacity and against the 6th respondent in his personal capacity by a writ of summon issued out at Onitsha Judicial Division of the High court of Anambra State. Upon the creation of the Otuocha Judicial Division, the suit was transferred to Otuocha and it was heard denovo by Amaizu (J) (as he then was).

Pleadings were ordered and subsequently amended severally by the parties.

The reliefs claimed by the Appellants are as follows:

“(1) Declaration of customary right of occupancy of the parcel of land known as and called “Nno Omo” situated at Ezi Umuanya village and verge pink on plan No.MEC/303/78J.

2. N10,000.00 general damage for trespass.
3. An order of injunction restraining the defendants, their servants and agents from entering or remaining on “Nno Omo” land verged pink in the plan No.MEC/303/78 or doing anything, thereon or in any manner whatsoever interfering with the plaintiff’s rights of ownership and possession over the said land.”

At the trial the Appellants called 9 witnesses while the 1st-5th Respondents called 3 witnesses. The 6th Respondent neither filed any pleadings nor did he testify or take part in the proceedings at the trial High court or in the court below. At the conclusion of evidence the learned trial Judge in his considered judgment granted the Appellants the reliefs they sought.

Aggrieved by this decision the 1st-5th respondents appealed to the court of Appeal Enugu Division. The court after a review of the issues raised by both parties allowed the appeal and held that the respondents (appellants herein) were afflicted and caught by the doctrine of estoppel by standing-by. The judgment of the trial court was set aside.

Dissatisfied the Appellants appealed to this court on grounds and distilled therefrom the following three issues:

1. Whether the learned Justices of the court below were right in holding that the appellants were afflicted and caught by the doctrine of estoppel by standing-by with respect to the land in dispute. (Ground No.1)
2. Whether the learned Justices of the court below were right in disregarding or failing to advert their minds to the unassailable findings of acts of possession and ownership made by the trial court in respect of the land dispute by the appellants. (Ground No.2)
3. Whether the learned Justices of the court below were right in their interpretation of Exhibits 16, 17 and 18 which led them to hold that the said Exhibits represent parts of the land in dispute. (Ground No.3)

The 1st – 5th Respondents raised also two similar issues except issue 3 which is dissimilar.

The issues are as follows:

i. Whether the court below was correct in holding that the Appellants are afflicted and caught by the doctrine of estoppel by standing by with respect to the land in dispute.

ii. Whether the court below failed to consider and or avert its mind to evidence of acts of possession by the Appellants at the trial court in respect to the land in dispute.

iii. Whether the court below property interpreted Exhibits 16, 17 and 18 to come to the conclusion that the exhibits represent parts of the land in dispute.

It has been noted that the 6th Respondent did not file any pleadings nor did he take part in the proceedings at the trial court or in the court of Appeal. However, on going through the Records, I came across a Notice of discontinuance of appeal against the 6th Respondent by the Appellant on 13/1/2010. Learned counsel for the Appellants should have drawn the attention of this court to that fact.

I have carefully compared the issues set out by the parties for determination of this appeal. It is my respectful view that the issues formulated by the 1st -5th Respondents are quite apt and will effectively determine this appeal. I shall take them serially as they are presented.

On the 1st issue bordering on the principle of estoppel, Learned Counsel for the Appellants has submitted that the court below were wrong in holding that the Appellants were caught by the doctrine of estoppel by conduct or estoppel by standing by with respect to the land in dispute. It is however, conceded by the Appellants that the 1st – 5th respondents duly pleaded in paragraphs 14 and 15 of their further amended statement of defence, the facts upon which the legal and equitable defences of estoppel by standing by estoppel by conduct, acquiescence and admission against interest were predicated.

Learned Counsel for the Appellant after making reference some passages of the judgment of the court below and the evidence of PW1 and PW5, he still urged the court to hold that the court below erred on holding that the Appellants were caught by the doctrine of estoppel. His reasons are that: Dennis Nwabude who testified for the plaintiffs in suit No.0/63/61 did so not as a representative of the Appellants but merely acted on his own. That both the trial court and the court below did not find evidence that the Appellants either knew of his action of authorised him to do what he did. That the Appellants were not parties, to suit No.06/63/61 and nothing in evidence of PW5 under cross-examination can justify any conclusion that the Appellants knew of the case and did nothing. It is further contended that there was abundant evidence at the trial court that the Appellants and Respondents had demarcated their lands and their boundaries as far back as 1924 under oath and that the Appellants had remained in possession of the land continuously even while the 1961 case was on. Reliance placed on the case of WILSON ETITI & ANOR v. PETER EZEOBI (1976) 12 SC. 123 @ 131 – 132.

On their part the 1st – 5th Respondents have contended that from the evidence given at the trial High Court, the Appellants were shown to have been afflicted and caught by the doctrine of estoppel by standing by with respect to the land in dispute and that the court below rightly held so.

In order for a court to rightly hold that the operation of the doctrine of estoppel by standing by has effectually come into play the party must have established necessary conditions. In other words the following must be shown to establish the operation of the doctrine;

1. That the judgment has been given in a case over the same matter in which another has an interest;
2. That the other party knew his rights or interests were being adversely affected.
3. That in spite of the knowledge of this, the other party did nothing.

See EKPOKE v. USILO (1978) 6 SC. 187 at 203; NANA OFORI ATTA II v. NANA ABU BANSRA II (1958) AC 95 at 103.

I shall relate the above conditions or factors to this case. It is instructive to note that in paragraph 1 of their further Amended statement of defence the 1st-5th Respondents placed reliance on all the legal and equitable defences open to them, namely Estoppel by standing by; Estoppel by conduct; Acquiescence and Admission against interest. In paragraphs 14, 15A, 16 and 17, they pleaded facts upon which the above defences were predicated in the following terms.

“14. In suit No 0/63/61 at the Onitsha High Court, the people of Akanato Ifite Umuanyo sued the present defendants of Osile Ogbunike for a declaration of title, damages, for trespass and injunction over ANI-UGWU-AKIDI which is being claimed in the instant case. The claim of the plaintiffs’ the people of Akanato Ifite Umuanya was dismissed.

15. The present plaintiffs were aware of the proceedings referred to in paragraph 14 above and suffered the said people of Akanato Ifite Umuanya to fight the battle with the defendants. In the course of the said proceedings Dennis Nwabude of the plaintiffs’ family testified for the people of Akanato Ifite Umuanya. The judgment in the suit and the pleadings therein including the plan filed by both parties, and the evidence of Dennis Nwabude will be founded upon.

15A. In Ogidi Native Court suit No.11/26, Chief Obiesili of defendants’ village, Osile Ogbunike, sued Nwosu of Ogbunike for trespass on Ugwu-Akidi land now in dispute and got judgment. That suit and judgment will be founded upon.

16. About the year 1977, 25 people from the plaintiffs’ family including the 1st, 2nd and 3rd plaintiffs on record trespassed on the land now in dispute and were subsequently arraigned before the Chief Magistrate Court Otuocha, for willful and unlawful damage to the crops of Osile Ogbunike people on Ani-Ugwuakidi land now in dispute.
17. The 1st named plaintiff, Okwundu Nwakonobi was the 8th accused and in his evidence he admitted that he was aware of suit No.0/63/61 between the people of Ifite Umuanya and Osile Ogbunike people and that the piece of land then in dispute people and that the piece of land then in dispute is, the same as the one now in dispute in 0/134/77. The defendants of Osile Ogbunike will rely on the said admission of Owundu Nwakonobi and the judgment of the Chief Magistrate in the relevant charge No.MCN/303C/80.

It is common and undisputed ground that EZI-UMUANYA the Appellants’ community and AKANATO-UMUANYA community make up the AKANATO community. In the earlier action on which the plea of estoppel is predicated the AKANATO community sued the Osile Ogbunike people the Respondents herein at the Onitsha Judicial Division of the Anambra state High court in suit No.0/63/61 over the same piece of land in this suit on appeal. The Ezi-umuanya side of the community did not join as plaintiffs, but one Dennis Nwabude a prominent member of that community testified on behalf of the Appellants. His testimony was to the effect that the land in dispute belonged to the plaintiffs in suit No.0/63/61 over the same piece of land in this suit on appeal. The Ezi-Umuanya side of the community did not join as plaintiffs, but one Dennis Nwabude a prominent member of that community testified on behalf of the Appellants. His testimony was to the effect that the land in dispute belonged to the plaintiffs in suit No.0/63/61 that is Akanato Umuanya, He enumerated the lands owned by his own people which did not include the land in dispute. He did not claim to have been mandated by his Ezi-Umuanya people to testify for the plaintiffs in suit No.0/63/61. Nothing in the evidence to explain why Dennis Nwabude would turn against his own people. Significantly too, DW2 who was a defendant in suit No.0/63/61 testified that other people of Ezi-umuanya were in court when Dennis Nwabude testified in that suit. He had this to say:

“I was one of those that represented the Defendant that is Osile Ogbunike in suit No.0/63/61. In the suit, a person from Ezi-Umuanya gave evidence for the plaintiffs Akanato Ifite Umuanya. His name is Dennis Nwabude. When he came alone. He came with Okwundu Nwakonobi, Abunie Nwakonobi and Rowland Nwabude. These people are the plaintiffs in the present suit.”

Dennis Nwabude who was the chief of Ezi umuanya and Akanato (i.e. Akanano Umuanya). At the time he testified he was the head of the Nwabude family of Appellants of Ezi Umuanya and it was the time this present suit was instituted.

The evidence of DW2 went unchallenged by the Appellants. DW2 was not cross-examined on this piece of evidence. His evidence was clear and damaging to the case of the Appellants, in respect of awareness of the suit 0/63/61 while it was pending. Despite initial attempts to deny knowledge of the suit, the Appellants eventually through PW5 under cross-examination admitted that they were aware of the said suit as it raged between the Respondents and the Akanato Ifite, Umuanya. The Appellants were fully aware of the pendency of suit 0/63/61. There was evidence that some of the Appellants accompanied him to court when he testified.

The Learned trial judge in the instant case regarded the previous suit No.0/63/61 as irrelevant; on the ground that it did not constitute the defence of “resjudicata”. The court below has rightly held that he was wrong in confining his consideration of suit No.0/63/61 to a plea of res judicata. The reason is obvious. The Respondent’s herein did not raise the issue resjudicata but as estoppel by conduct or estoppel by standing by. It is instructive to note that such a crucial point or averment raised by the Respondents was not specifically countered by the Appellants in their pleadings which were amended severally. The court below made a striking contrast between estoppel by conduct or standing by and estoppel per res judicata; though the two can arise from the same set of circumstances, are however two distinct defences. Res judicata arises as a matter of record, whilst estoppel by standing by is an equitable doctrine and is essentially a question of fact.

The doctrine applies where a person is content to be a spectator, rather than a gladiator, an on looker rather than a player leisurely waiting for the outcome on looker rather than a player leisurely waiting for the outcome of the battle or the play, as the case may be. It must be shown that the person knew that his rights or interest were being aversely affected, and yet chose not to do anything about it. The party need not to be a party in the previous action or qualify as a privy in interest. If he were so res judicata would apply. A non-party therefore could be estopped and thereby be bound by the previous judgment, if he knew or ought to have known the pendency of the previous suit and chose to stand by. Such knowledge is either actual or imputed. See ANYAOKE v. ADI (1986) 3 NWLR (pt.31): BALOGUN v. AGBOOLA (1974) 10 SC.111 at 119. The Appellants in this appeal cannot deny that the suit was pending in the court and yet they remained passive and did not interfere in the action that affected their interest. They are therefore, bound by the outcome of the judgment in suit No.0/63/61 notwithstanding that they were not party to the suit. See OJIAKO v. OGUEZE (1962) 1 SCNLR 112; ALASE v. OLORI ILU (1964) 1 ALL NWLR 390. It is for the above reason that this issue is resolved in favour of the Respondents.

On issue No.2, it is submitted by the Learned Counsel for the Appellants that their Lordships of the court below of possession and ownership made by the trial court in favour of the Appellants. That by paragraphs 4, 5, 6, 7, 8, 9, 10, 13 and 14 of the further amended statement of claim, the Appellants pleaded facts dealing with traditional history of the land in dispute as well as acts of ownership and possession thereof. Reliance was further placed on the evidence of PW2, Ezebito Ekueme. PW3, Benedict Nwaizu, PW4, Chief Abel Nwangbo, PW5, Alfred Nwaizu, PW7, Rowland Nwabude, PW8, Okolo Afamefuna PW9, Akwuobi Ojike and also DW2, DW3.

On the part of the Respondents, herein their Learned Counsel has submitted that evidence of acts of possession by both parties at the trial court in respect of land in dispute were properly taken into consideration by the court below in arriving at its decision.

For a ground of failure to consider certain issue to succeed the Appellants must show that from the judgment of the court below, the court did not consider or avert its mind to that particular issue. The Appellants are not disputing the fact that the Appellants based their proof of acts of possession on oral evidence neither is it disputed that the 1st-5th Respondents based their, proof of acts of possession on documentary evidence namely Exhibits, 16, 17, and 18 at the court below.

It is instructive to note that the trial court had made certain finding of acts of possession by the Appellants and decided in their favour. On this issue, amongst others, the 1st-5th Respondents appealed and addressed the issue of acts of possession in issue 4 of its Brief which appears at pp.271-272 of the record of Appeal and issue VIII of its supplementary Brief which appears at pp.331-334 of the Record. The Appellants addressed this issue in their issue 4 of their Respondents’ Brief and this appears at pp.298-299.

The court below considered the nature of evidence provided by the parties. At page 364 in his lead judgment UBAEZONU JCA stated:

“I shall here consider briefly whether the imaginary judicial scale ought to have tilted in favour of the Appellants or Respondents if the evidence led on both side were put on the said scale.”

The above pronouncement is in line with various decisions of this court in respect to the procedure to be adopted where a judgment is attacked for being against the weight of evidence.

See GUARDIAN NEWSPAPER LTD v. AJEH (2005) 12 NWLR (pt.938) p.205 at 227.

Since the evidence of the appellants was oral evidence while that of the Respondent was documentary evidence for this reason the court below stated at p.365 of the Records thus:

“In a case of this nature where a party relies mainly on oral evidence while the other relies mainly on documentary evidence, the trial court should give more weight to the documentary evidence. This is because oral evidence may tell a lie but documentary evidence which is shown to be genuine does not tell a lie”.

The court below stated that the documents tendered by the appellant in that case (herein Respondent) shall be the basis from which to assess the oral evidence. Consequently guided by this principle, in assessing the oral evidence, the court below made the following findings at p.365 of the Records:

“In Exhibit 16 the people of Ezi-Nkwelle represented by Ekwensi sued the Appellants in respect of a piece of land described by them as “Okpuno” land. The land is north of the Nkissi River. The other boundaries were described in the judgment. The Nsi-Nkwelle people lost to the Appellants. On appeal by the Ezi Nwelle people, their appeal was dismissed as per Exhibit 18. In Exhibit 17 the plaintiffs in that suit are representing the Appellants in this appeal. It was their land case against Ikeji of Nkwolli and Ekwensi of Ezi Nkwelle. Throughout their case the Respondents did nothing to assert their right over the land in dispute.”

After a careful examination and consideration of all evidence presented by both parties, the court below rightly held as follows:-

“I have carefully considered all the evidence led in this case as borne out by the various exhibits and I am of the view that if the lower court had properly assessed the evidence, it would have no difficulty in arriving at the conclusion that the weight of evidence was on the Appellants’ side bearing in mind that they claimed nothing.”

It is in the light of the foregoing that I hold firm view that the court below properly considered evidence of acts of possession of both parties and carefully weighed the said evidence that is both the oral evidence of the Appellants and the documentary evidence of the Respondents at the trial court. Where the finding of the court below is borne out by the evidence adduced in the trial court, this court will not intervene or interfere: see: IRAGUNIMA v. R.S.H.P.D.A. (2003) 12 NWLR (Pt.834) 427 at 427 at 443. It is in view of the foregoing that resolve this issue in favour of the Respondents.

The question raised under issue No.3 is whether the court below properly interpreted Exhibits 16, 17 and 18 to come to the conclusion that the exhibits represent parts of the land in dispute. The complaint of the Appellants is that the court below wrongly interpreted Exhibits 16, 17 and 18 which error led the court to hold the said exhibits represent parts of the land in dispute. Relying on the evidence of DW2, learned counsel for the Appellants has contended that as a star witness through whom Exhibits 16, 17 and 18 were tendered, the witness neither in his evidence in chief nor under cross-examination made any effort to connect the land indispute with the Exhibits.

Learned Counsel for the Respondents however, has pointed out that the interpretation of Exhibits 16,17 and 18 was based on the contents of the Exhibits, the survey plans, tendered by both parties to confirm the identity of the land in dispute on those cases. Reliance was placed on paragraphs 10, 12, 15(a) and 19 of the Respondents’ further further Amended statement of Defence. It is submitted that the court below properly interpreted Exhibits 16, 17 and 18 and thereby came to the conclusion that the exhibits represent parts of the land in dispute.

Exhibits 16, 17 and 18 were tendered by the Respondents to show and prove their ownership of lands adjoining the land in dispute. Exhibit 16 was litigation against the Respondents, in respect of the land in dispute. The plaintiffs in that case had sued the respondents for a declaration in respect of “OKPUNO” land. The Respondents undisputably won that case.

Upon going through the judgment of the court in that case, the court below had reason to come to the following conclusion at page 358 of the Records:

“The relevance of this judgment is that

(i) The respondent’s land, be it the land in dispute or any other land in the area extends northwards beyond the NKISSI RIVER.

(ii) That their land extends up to Aguleri Road and continues in the northly direction ”

Armed with this information and comparing same with survey plans (Exhibits 1, 3 and 8) tendered by both parties the court below held at page 358 of the record thus:

“Exhibits 1, 3 and 8 show, the NKISSI stream or river. Exhibit 1 is the Respondents’ plan while Respondents, Exhibit 3 is the Appellants’ plan tendered by the Respondent. Exhibit 8 is the Appellants plan. Exhibit 3 tendered by the Respondent shows road to Aguleri. Thus if one marries Exhibit 16 to Exhibit 1 and 3 the result is that the Appellants not only owns the land south of the Nkissi River. The Road to Aguleri traverses the land in present dispute.”

The court below proceeded to examine the other judgments (Exhibits 17 and 18) at page 359 of the Records the Court held,

“The sum total of all these judgments is that successful party may, I say may be the owner of the land in dispute. I may add that the Appellants in this appeal did not claim anything in the court below. Those judgments could therefore have the effect of weakening the strength of the Respondents’ case and point to the fact that the respondents shall not be entitled to the reliefs claimed.”

It is in the light of the foregoing findings of the court below that I seem to agree with the Respondents that the interpretation of Exhibits 16, 17 and 18 was based on these exhibits themselves. Their contents are clear and unambiguous. The pleadings of the respondents in their further Amended statement of defence in paragraphs 10, 12, 15(a) and 19, and the survey, plans tendered by both parties help tremendously in confirming the identity of the land in dispute in those cases (i.e. Exhibits 16, 17 and 18). I have decided to reproduce paragraphs 10, 12, 15(a) and 19 of the Respondents’ further Amended statement of Defence for the better understanding of this issue.

The paragraphs read;

“10. The defendants deny paragraph 11 of the further Amended Statement of Claim and will put the plaintiffs to the strictest proof of the allegations therein contained. In further reply thereto, the defendants state that in the High Court Suit No. 3/22- the defendants’ people were represented by Maduagwuna who was the defendant in the case, while the plaintiffs of Ezi-Nkwelle were represented by one Ekwensi. The land then in dispute was ATORJI LAND. JUDGMENT was delivered in the said case dismissing the claims of the plaintiff as Ezi-nkwlle. The Atorji land is shown in the defendants’ plan and verged YELLOW THEREIN,

12. In further reply to paragraph 12 of the Further Amended statement of claim, the defendants of Oisile Ogbunije state that after the case referred to in paragraph 10 above, one Ikeji of Amuche Nkwelle was sued by of Ofochebe of Osile Ogbnike in suit No.8/30 over a piece of land called UGGUELIMILI. The said land is clearly delineated and verged VIOLET in the defendant’s plan filed in this suit. Also in the suit, a plan was made for the defendants of Osile Ogbunike showing Atorji land, Ugwuelimili land and the land now in dispute described as “other land of Osile Ogbunike”. Judgment in the said suit as also the plan therein will founded upon.

15a . In Ogidi native Court Suit No.11/26, Chief Obiesili of defendants’ village, Osile Ogbunike, sued Nwosu of Obunike for trespass on Ugwu-Akidi land now in dispute and got judgment. That suit and judgment will be founded upon.

19. The defendants of Osile Ogbunike deny paragraph 15 of the Further Amended statement of claim. In further answer thereto the defendants of Osile Ogbunike state that they not only clear the land in dispute, but also their lands namely Atorji.

The testimony of DW2 at page 110 lines 20-26 is as follow:

“The plaintiffs call the land in dispute “Nno-Omo” my people have another land near the land in dispute we call the lands Nkissa Omeagnu, Ataoji, Ugwu Elimili. We inherited the land from our ancestor Ogbunike.

My people had cause to go to court to defend our title and the lands I have mentioned. My people won all the cases.”

A judgment in a previous case may rightly be used to prove acts of possession. See OKAFOR & ORS v. OBIWA & ANOR (1978) 9 & 10 SC.115. one of the modes of proving title is through acts of possession. See IDUNDUN v. OKUMAGBA (1976) NSCL 445 at 453-455. Exhibits 16, 17 and 18 being the previous judgments were produced by the respondents at the trial to sustain their claim to ownership and possession of the areas of the land now in dispute.In the light of the foregoing the issue is resolved in favour of the Respondents.

On the whole it is my judgment that this appeal lacks merit. It is dismissed with costs of N50,000.00 in favour of the Respondents but against the Appellants.

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SC.59/2003