Ranking Udo & Ors. V. Mbiam Obot & Ors. (1989) LLJR-SC

Ranking Udo & Ors. V. Mbiam Obot & Ors. (1989)

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In the court of first instance the Plaintiffs (now Respondents in this court) sued “For themselves and as representing the people of Akpa Utong” and claimed from the Defendants (now Appellants in this court), who are people of and representing Afia Nsit (Z) the following:

“1. A Declaration that the Plaintiffs are the titular owners in possession of the piece or parcel of land situate at Akpa Utong ………..and known as and called Ekpene Ibiok…………

  1. N1,000.00 general damages for trespass in that on or about the 30th day of April, 1975, the Defendants by themselves, servants and agents unlawfully broke and entered the Plaintiffs said “Ekpene Ibiok” land and destroyed Plaintiffs houses and economic crops and built huts therein without leave or licence of the Plaintiffs. The Defendants’ will continue the said acts of trespass unless restrained.
  2. Perpetual Injunction restraining the Defendants, their servants and or agents from further acts of trespass in or over the said piece or parcel of land.”

Pleadings and plans were ordered, filed and exchanged. The Plaintiffs in paragraphs 4 and 5 of their Statement of Claim pleaded as their root of title, their traditional history, as well as their various acts of ownership and possession.

They also pleaded in paragraph 7 Suit No.C/12/1960 which the present Defendants as Plaintiffs prosecuted against them (as Defendants) in and over the self same piece of land. It is relevant here to note that the Plaintiffs did not specifically set up this case and its appeal judgment in S.C.231/74 as an estoppel per rem judicata. They merely pleaded that “the proceedings judgment and plans therein filed shall be founded upon.”

It is also relevant to observe that the Plaintiffs did not as one would naturally expect, tender the entire proceedings in Suit No.C/12/1960. They merely tendered the portion dealing with the evidence of P.W.3 (page 47 lines 20-30 as Ex.L.) As much was made of this case C/12/1960 and its appeal judgment SC.231/1974 Ex. E – I will return to it later in this judgment.

The Defendants filed a Statement of Defence which they later amended in paragraph 9 and by adding a new paragraph 11(d). They too also averred that they are owners of the land in dispute and relied on “original occupation and deforestation” as their root of title. Like the Plaintiffs they based their claim to ownership and occupation of the land on their traditional history. Like the Plaintiffs also the Defendants pleaded several acts of possession and continuous ownership. Again like the Plaintiffs, the Defendants pleaded Suit No.C/12/1960 and its “ultimate dismissal by the Federal Supreme Court.”

Now the issues calling for determination and resolution from the pleadings are as follows:

  1. Which traditional history is more probable, more likely to be true, and therefore, more acceptable
  2. In case of doubt or there being nothing to choose between the two conflicting traditional histories which side has proved acts of possession more numerous and more positive to lead to the conclusion that they are owners of the disputed land.
  3. What is the legal effect of Suit No.C/12/1960 and its appeal judgment SC.231/1974 on the rights of the parties

It will be interesting to see how the two courts below dealt with the 3 issues enumerated above.

The learned trial Judge, Akpabio, J. at p.120 of the record of proceedings recorded his findings on traditional histories of the parties thus:

“I have carefully considered the traditional history of the land as adduced by both parties, and can “find nothing to choose between them. Each side claims the land to belong to his village from time immemorial. Each also claims to have been exercising maximum acts of ownership on the land, living on it and burying their dead on it. In such a situation, the court usually has no alternative than to consider the evidence of possession adduced by both parties and see which is more numerous, which is more positive and who first got to the land (as far as can be gathered from the evidence).

After this careful review of the evidence, the learned trial Judge found at pp.122/123:-

“One may therefore say that of the three acts of users and enjoyment claimed by the Plaintiffs, none was shown on their survey plan, Exhibit ‘A’. On the contrary, the plan shows at least eleven houses, said to be ‘broken houses of persons from Afia Nsit ……….. All these houses, coupled with the farms said to belong to Afia Nsit people actually go to show that the Afia Nsit people were actually in possession of the land, both by cultivating it and building houses on it’..

And at p.125 the learned trial Judge categorically stated:

“I hold that the Plaintiffs have not proved that they had at any time ever been in actual and exclusive possession of the land in dispute, and further more, at the material time in this action, the defendants were in exclusive possession of the land. The claim for trespass must therefore fail.”

On the claim for Declaration of Title the learned trial Judge at p.125 stated clearly and held:-

“There is no evidence that title to the said land was ever awarded to the Plaintiffs by any Court of law, nor granted or conveyed to them by any person whatsoever either from time immemorial or otherwise. The claim for a declaration of title must therefore also fail.”

Having so found as above the learned trial Judge then dismissed the Plaintiffs’ claims in their entirety.

Before doing this the learned trial Judge carefully and meticulously considered Suit No.C/12/1960 and the Appeal Judgment of the Supreme Court SC.231/74 tendered as EX.E. Since the main Issue in this appeal is whether or not Ex. E constituted an estoppel and if yes whether or not the present Respondent can be granted a declaration of title based on the said estoppel, I will consider together the conflicting views of the two courts below on Ex. E.

Obviously dissatisfied and aggrieved by the judgment of Akpabio, J. the Plaintiffs appealed to the Court of Appeal Enugu Division. That Court in a lead judgment by Olatawura, J .C.A. concurred in by Aikawa and Katsina-Alu, JJ.C.A. allowed the Plaintiffs/Appellants appeal set aside the judgment of Akpabio, J. and granted the Plaintiffs a Declaration of Title to the land in dispute, N100 general damages for trespass and a perpetual injunction.

The Defendants in the original Suit before Akpabio, J. have now appealed to this court on 4 grounds.

In Ground 1 they complain that:

“(i) The Court of Appeal erred in law when it held (per Olatawura, J.CA.) that –

“My interpretation of Exhibit E, however, is that issue of title was raised in Exhibit E and the respondents are estopped from raising it,”

and also when it held that the High Court ought to have struck out paragraphs 11(a) – 11(d) and 13-15 of the Statement of Defence because they raise issues of title to and possession of the land in dispute.”

The Appellants formulated in their Brief of Argument 4 Questions for Determination. During his oral argument Mr. Sofunde, S.A.N. abandoned 3 Issues and rested his entire case on Issue No.1. This Issue reads:

“1. Whether Exhibit “E” could operate as estoppel.”

This Issue seems to be the most important and the most relevant Issue in this appeal.

Since the views and the positions of the two courts below were heavily coloured and substantially influenced by their respective interpretation and application of the Supreme Court Judgment in SC.231/74 EX.E as constituting an estoppel, it now becomes necessary to consider the meaning of an estoppel generally and the extent to which EX.E can be effectively used in this case. Generally when an estoppel binds a party to litigation, he is prevented from placing reliance on or denying the existence of certain facts. Therefore from the point of view of the party in whose favour it operates, an estoppel could be regarded as something which renders proof of certain facts unnecessary. To use the language of naval warfare, an estoppel must always be either a mine layer or a mine sweeper: it can never be a capital unit. Its function is either to place an obstacle in the way of a case which might otherwise succeed or else to remove an impediment out of the way of a case which might otherwise fail.

That an estoppel is not a capital unit is amply shown by the observation of Brett L.J. in Simm v Anglo American Telegraph Co. (1879) 5 Q.B.D. 188, where he carefully hinted that “an estoppel gives no title to that which is the subject-matter of the estoppel ……” Lord Lyndhurst also expressed the same view in Bensley v Burdon (1830) 8 L.J.O.S. Ct. 85 at p. 88 that the expression title by estoppel is a mere negative title. It is a highly metaphorical and elliptical mode of indicating the use which may be made of the estoppel, as no title can be established wholly and solely by an estoppel. There is no doubt, an estoppel can greatly help a party to establish such title. Applying the above principle to this appeal, it is my view that the Plaintiffs/Respondents cannot establish their title to the land in dispute by Ex. E. They have to prove that title aliunde using Ex. E however as a weapon or a shield.

But what is it that EX.E decided.

That decision and the reasons for it can be summarised as follows:

“1. Although the claim was for damages for trespass the issue of title was raised in the pleadings. (See p.127).

  1. Although the Plaintiffs gave evidence of possession and farming other than that based on the 1918 case, the learned trial Judge did not evaluate either such evidence or the contrary evidence of the Defendants…….” (p.130).

If one pauses here a bit it has to be pointed out that in Ex. E the present Plaintiffs/Respondents were Defendants in the original action before Balonwu J. (as he then was). Secondly, the present Defendants/Appellants were the Plaintiffs. They did not in that suit claim any declaration of title and no court could have rightly and lawfully awarded them that which they did not ever claim. Thirdly there was no counter-claim by the present Plaintiffs who were then Defendants. That being so nothing could have been awarded to them.

It is true that at the end of its judgment in SC.231/74(Ex.E) the court recorded the following at p.131 of the record of proceedings:

“The appeal, therefore, succeeds and it is allowed. The judgment of Balonwu J. in Suit C/12/60 delivered on 30th June, 1965 with its award of costs is hereby set aside. In substitution thereof, judgment is hereby entered in favour of the Appellants and the claim of the Respondents in the lower court is hereby dismissed.”

What was “the claim of the Respondents in the lower court” that was dismissed That claim was for Damages for trespass and Injunction. There was no claim for Title. One need not necessarily be an owner to claim trespass for in an action in trespass what it is required that the claimant proves, is exclusive possession not title.

It is also true that in Abotche Kponuglo v Adja Kodadja (1931)(P.C.) 2 W.A.C.A. 24 the Privy Council held that:

“The Respondent’s claim being one of damages for trespass and for an injunction against further trespass, it follows that he has put his title in issue.”

Putting one’s title in issue indirectly and consequentially, and positively and directly claiming a declaration of title, are two different propositions, and it is very necessary to keep this difference constantly in view when dealing with estoppels per rem judicaram. One has to know precisely what is being estopped. In fact the judgment in Kponuglosupra even adverted to this difference when their Lordships observed:-

“His claim postulates, in their Lordships opinion, that he is either the owner of Bunya land or he had prior to the trespass complained of, exclusive possession of it.”

(italics ours)

The “or” above is disjunctive not conjunctive. If the Plaintiff is owner he will invoke the aid of the decision in Johannes England v. J. Mope Palmer (1955) 14 W.A.C.A. 659 at p.660 to show that “in a trespass action an averment of ownership is consistent with and amounts to an averment of possession …. “If the Plaintiff is not the owner all he need show is exclusive possession prior to the trespass complained of. The present Appellants (who were Plaintiffs in C/12/60) could have succeeded on proof of exclusive possession.

But unfortunately the learned trial Judge as was clearly shown in EX.E did not evaluate the evidence of possession led on both sides. He did not make any findings on possession which is 9/10 of the law. He did not make any findings on title either. He was not called upon to make any such finding any way.

It was in such a state of affair that EX.E “entered judgment for the Appellants” who were the Defendants in suit No.C/12I60. As far back as 1935 our courts in J.M. Kodilinye v Mbanefo Odu 2 W.A.C.A. 336 dealt with this kind of judgment and observed at p.338:-

“Such a judgment declares 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 nothing to choose between the rival traditional stories the Plaintiff fails in the decree he seeks and judgment must be entered for the Defendant.”

Thus the judgment entered for the Defendants/Appellants in EX.E was a judgment that decreed no title in them. Now the result in Suit No.C/12/60 and its appeal decision in SC.231/74 Ex. E was that neither the Plaintiffs, the present Appellants nor the Defendants, the present Respondents were (1) found by the trial Court to be in possession of the land now in dispute as the evidence of possession given on both sides were not evaluated (2) Neither the Appellants nor the Respondents had title decreed in them. Now when one talks of estoppel in relation with the 1960 case (C/12/60) which ended in SC.231/74 Ex.E, one has got to keep these important facts in mind and in view, because the rule about estoppel is that parties and their privies are estopped from denying not merely the state of affairs established by the judgment but also the grounds upon which that judgment was based.

This leads naturally to the reasons given for the decision of this Court in EX.E. At p.130 of the record the court dealt with the wrong use made by the learned trial Judge (in C/12/60) of the plan used in the land dispute in a 1918 case EX.E as if it were the same as the land in dispute in the 1960 case. This being so the court continued “his inferences drawn from the fact as to the title of Plaintiffs to the land in the 1918 case were therefore erroneous.” The court then concluded thus:-

“We are therefore, of opinion that the learned trial Judge was wrong in his treatment of the 1918 case and EX.E. We also think that he was wrong about his statement of the applicable principle of law, that is, that the weakness in the Defendants’ case may be a source of strength of the Plaintiffs’ case.

For these reasons this judgment cannot be allowed to stand.”

From the above it is as clear as crystal that the present Appellants who were Plaintiffs/Respondents in EX.E lost not because they did not prove title for none was claimed; not because they did not prove prior possession for their evidence of possession (the 1918 case apart) was not evaluated. They, however, lost because of what Akpabio J. at p.113 described as “two errors of law committed by the learned trial Judge who wrongly admitted a plan filed in a 1918 case” to which the present Respondents were not parties. Akpabio J. was very right when he observed that SC.231/74 EX.E “said nothing about the relative merits of the case for Plaintiff or Defendant.”

In their pleadings the Plaintiffs/Respondents merely pleaded the Supreme Court judgment EX.E without setting out how or what in that judgment constituted an estoppel by record – was it the giving of an empty judgment for the Defendants or the mere dismissal of the Plaintiffs’ case for trespass and injunction because of two errors committed by Balonwu J. A plea of res judicata can be maintained only when the same question as has been judicially decided was again raised between the parties. If therefore an action is brought, and the case is discussed on its merits and a filial judgment is obtained by either party then the parties are concluded and they cannot canvass the same question again in another action inter partes.

The issue of title to the land in dispute was not canvassed and discussed in Ex.E; the entire case was not discussed on the merits and none of the parties – neither the Plaintiffs nor the Defendants – was awarded title to the land in dispute by EX.E. How then can it be said that EX.E estopped the present Appellants from claiming title to the land in dispute For the plea of estoppel per rem judicatam to apply there must have been a judicial determination of a cause agitated between the real parties, upon which a real interest has been settled: Harrop v. Harrop (1920) 3 K.B. 386. The principles underlying estoppel by record are

(i) Interest reipublicae ut sit finis litium – It is for the common good that there should be an end to litigation.

(ii) Nemo debet bis vexari pro una et eadem causa – No one should be sued twice on the same ground. No one shall be twice vexed for one and the same cause.

The Appellants in C/12/60 never sued for title so therefore they were not now suing the Respondents twice for title when they claimed a declaration of title before Akpabio, J. in Suit No.HU/8/76. Trespass to land and Declaration of title to land are two distinct and separate claims. These claims may arise from two distinct causes of action and an action in trespass will not constitute a bar to a future action for title: Brunsden v Humphrey (1884-85) 14 Q.B.D. 141.

But perhaps the most disqualifying factor militating against EX.E qualifying as an estoppel in this case is that it did not and I daresay it could not have given title to any of the contesting parties. It merely “entered judgment for the Defendants” (the present Plaintiffs/Respondents). A judicial decision is said to be final when it leaves nothing to be judicially determined thereafter in order to render it effective and capable of execution. In view of the decision in Kodilinye v Odu supra just what is it in EX.E that anybody can execute The answer is nothing. At best EX.E as it relates to the title to the land in dispute in this case is ambiguous and uncertain as it leaves the parties in doubt as to the exact extent of their rights in and over the land in dispute. It neither settled finally the issue of possession nor of title. Finality cannot be attributed to a decision such as EX.E. Finality is basic and crucial in pleas of estoppel per rem judicatam. It is not the mere raising of an issue that is binding on the parties. Rather it is the fact that such issue has been adjudicated upon and decided one way or another. When that is the case, it is not open to the losing party to re-open or re-litigate that issue which had already been decided and which should therefore be considered closed.

In his Brief of Argument dealing with the subject of estoppel, learned Senior Advocate for the Respondents submitted:

“The parties in this case are the same as the parties in Suit No.C/12/60, and the land in dispute in the present case was included in the land in dispute in Suit No.C/12/60.

In the said Suit No.C/12/60 which went on appeal to the Supreme Court of Nigeria as SC.231/74 the issue of title and possession of the land in dispute were raised.”

All these are true. The Brief is however totally silent on the point whether or not those issues of title and possession raised in C/12/6O and SC.231/74 were finally determined, a condition sine qua non to a successful plea of estoppel per rem judicatam.

The Respondents Brief then came along with this bold submission:

“By the Supreme Court dismissing the Defendants’/ Appellants’ case in Suit No.C/12/60 in which title and possession of the land in dispute which were the foundation of their case were raised, the Defendants/Appellants were estopped from asserting title and possession to the same land which is in dispute in the present case,”

I referred to the above submission as “bold” because it missed the essential pre-requisite of estoppel per rem judicatam – that there was a final determination of the issues raised. EX.E itself regretted that although the Plaintiffs (the present Appellants) gave evidence of possession and farming the trial Court in C/12/60 did not evaluate such evidence or the contrary evidence of the Defendants (the present Respondents).

In other words Suit No.C/12/60& SC.231/74 did not decide which of the parties had possession of the land in dispute. They also did not decide which of the parties owned the land now in dispute.

No findings were made either way.

In the absence of such definitive finding it will be idle for either party to plead C/12/60 or SC.231/74EX.E as estoppel per rem judicatam. In Suit No.C/12/60 the present Appellants were found to be in possession and were awarded damages for trespass. That judgment was reversed by and in SC.231/74 EX.E because of error of Balonwu J. in using a 1918 case not inter partes. EX.E did not make any findings either of possession or title in any of the contesting parties.

In Mogo Chinwendu v Nwanegbo Mbamali (1980) 3-4 S.C. 31 the different judgment relied upon for estoppel made definite findings on the issues in dispute. And here lies the essential difference between this case and those cited in the Brief of learned Senior Advocate for the Respondents.

The Respondents’ Brief referred to Mills v Cooper (1967) 2 All E.R. 100 In that case it was held that the doctrine of estoppel did not apply since the issue determined in the previous proceedings was that the respondent was not a gipsy in December, 1965; whereas in the present case the issue to be determined was whether he was a gipsy in March, 1966. If one follows the logic of this decision and applies same to the case on appeal, it can then be argued that the doctrine of estoppel did not apply since the issue decided in EX.E was that the present Respondents were not liable in trespass in 1960. That will not estop the Defendants/ Appellants from defending the Plaintiffs/Respondents 1975 suit for a Declaration of Title, Trespass and Injunction. If there had been a finding in C/12/60 or SC.231/74 EX.E that the land in dispute belonged to the Plaintiffs/Respondents then they could easily and successfully set up those findings as estoppel.

In Ezewani v Onwordi (1986) 4 N. W.L.R. (Pt.33) 27. This court drew attention to the two kinds of estoppel by record – cause of action estoppel and Issue estoppel. In either case there will be a distinct holding by a former Court which a latter court will not allow the parties to re-open and re-litigate. A party is precluded from contending the contrary or opposite of any specific point which having once been distinctly put in issue has with certainty and solemnity been determined against him. Viewed from this angle EX.E which did not determine either title or possession with certainty or solemnity could not have created and did not in fact, create, an estoppel by record. See also Bamishebi v Faleye (1987)2 N.W.L.R. (Pt.54) 51 at p.58; Dzungwe v Gbishe (1985) 2 N.W.L.R. (Pt.8) 528 at p.538.

In this case the learned trial Judge Akpabio J. was right in holding that EX.E which did not determine one way or the other the issue of title to the land in dispute did not constitute an estoppel against the present Defendants/Appellants pleading that the land in dispute belongs to them. The court below was, with the greatest respect wrong in awarding the Plaintiffs/Respondents title to the disputed land on the basis of EX.E for the learned trial Judge dismissed that title based on traditional history. Title based on Ex.E, is title by estoppel which is no title at all. The learned trial Judge also found that the Defendants/Appellants had been in continuous possession of the land in dispute at least from 1960 to March, 1975 when judgment in SC.231/74 was delivered. There was nothing to show that the Plaintiffs ever regained possession after March, 1975.

Their present action brought in April, 1975 was obviously based on EX.E which did not give them possession. The award of damages be it even general damages to the Plaintiffs/Respondents by the court below was therefore erroneous. Not having title and/or possession in their favour, it was wrong to have granted the injunction the Plaintiffs/Respondents claimed as all these were against the findings of the trial Court. A Court of Appeal ought to be rather slow in reversing the findings of fact of a trial Court even if on the same evidence it would have come to a different conclusion: Woluchem v Gudi (1981) 5 SC.291 at p.326; Okuoja v Ishola (1982) 7 SC. 314 at p.349; Nwobodo v Chief Electoral Officer (1984) 1 SC. 1 at 53.

In the final result this appeal succeeds and it is hereby allowed. Since the issue of title to this land has been a thorn in the flesh of the parties to this case, justice demands that that issue be properly litigated and proper findings made. I will therefore order a retrial with a direction that EX.E does not constitute an estoppel against the present Defendants/Appellants. It may also be advisable for the present Defendants/Appellants to counter-claim for title to enable the court settle this issue once and for all. I will therefore make the following orders:-

  1. This appeal is hereby allowed.
  2. The judgment and orders of the Court of Appeal dated 9th December, 1985 are hereby set aside.
  3. A retrial of this-case before another Judge of Akwa-Ibom State High Court is hereby ordered.
  4. There will be costs to the Defendants/Appellants in this court assessed at N500.00.


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