(2017) LPELR-43954(CA)

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1 PETER & ORS v. UJAM CITATION: HUSSEIN MUKHTAR In the Court of Appeal In the Enugu Judicial Division Holden at Enugu ON THURSDAY, 7TH DECEMBER, 2017 Suit No: CA/E/208/2008 MUHAMMED LAWAL SHUAIBU FREDERICK OZIAKPONO OHO 1. UGWU OSONDU PETER 2. DR. AUGUSTINE ARUM OKOH 3. MR. SIMON ARUM OKOH CHIEF (DR) UGWU NWAFOR UJAM Before Their Lordships: Between And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. EVIDENCE - ESTOPPEL PER REM JUDICATAM/RES JUDICATA: Principles of estoppel per rem judicatam "The principle upon which the defence of estoppel per rem judicata could be founded is clear, and it is shortly put by Bairamian, J. in KREKCHI Vs UAC LTD. 20 NLR 34 at page 38. "It is no doubt true to say that, whenever a question has in substance been decided or has in substance formed the rationale of, or been fundamental to the decision in an earlier action between the same parties each party is estopped from re-litigating on the same question thereafter". See also the case of NEW BRUNSWICK RAILWAY CO. V. BRITISH AND FRENCH TRUST CORPORATION LTD. (1938) VOL. 4 (ALL E. R.) 747 AT 770."Per MUKHTAR, J.C.A. (Pp. 7-8, Paras. E-A) - read in context

3 2. EVIDENCE - ESTOPPEL PER REM JUDICATAM/RES JUDICATA: Conditions that a party pleading res judicata must satisfy to sustain such plea; effect of failure to satisfy same "The principle of res judicata could be raised by the Defendant to show that the Plaintiff is re-litigating an issue or issues in the present suit, which have been finally and conclusively decided on the merits in a previous suit, between the same parties and their privies by a Court of competent jurisdiction. The Defendant is enjoined to plead these facts if the principle of res judicata is to be relied upon. Thus, the pre-conditions for its application are include that a party relying on it has to show: (1) That the identity of the parties and/or their privies in the previous case and the present case are the same; (2) The issues and subject matter (i.e. identity of cause of action) litigated upon in the previous case and the present case are the same; (3) There must be a valid judgment of a Court of competent jurisdiction on the point or subject matter; (4) If the action concerns land (as here) there must be evidence that the land in the previous case is the same as in the present case. Each of these requirements must be proved as it is not a matter to be drawn by inferences. If any of the requirements is not proved the defence of Res judicata is inapplicable. See: INNOCENT IBERO AND ANOR. V. UME-OHANA (1993) 2 NWLR (Pt. 277) 510, IJALE V. LEVENTIS CO. LTD. (1961) 2 SCNLR 386, AGBASI V. OBI (1998) 2 NWLR (Pt. 536) 1, IKE V. UGBOAJA (1993) 6 NWLR (Pt.101) 539 at and OLORIEGBE V. OMOTESHO (1993) 1 NWLR (Pt.270) 386 at "Per MUKHTAR, J.C.A. (Pp , Paras. D-E) - read in context

5 HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): These are an Appeal and a Cross Appeal by the Appellants/Cross Respondents and by the Respondent/Cross Appellant respectively against the Ruling of the High Court of Enugu State, Agbani Division delivered by His Lordship N. N. Neboh, J on 24th January 2008 dismissing a Preliminary Objection challenging the competence of suit number HAGB/8/2006 filed by the Respondent/Cross Appellant. The ground of the objection is that the said suit is defective and should be dismissed on the ground of estoppel and res judicata by the decision in suit No: E/547/97. The Court below dismissed the objection and held that the parties were not the same in the two cases. The suit originally had Chief Peter Ugwu (now deceased) as 1st Appellant, who died during the pendency of this appeal, and was substituted by his first son Ugwu Osondu Peter, who replaced him. The Plaintiff s claim as endorsed on paragraph 36 of the Further Amended Statement of Claim, was as follows: "(a) A declaration that the plaintiff is entitled to customary right of occupancy over the large parcel of land 1

6 situate at Akpasha Umuatugbuoma Akegbe Ugwu Awkunanaw which was validly purchased by the plaintiff from the defendant. (i.e. Late Chief Peter Ugwu) (b) A perpetual injunction restraining the defendants by themselves or through their agents, privies, or successors-in-title or otherwise howsoever from trespassing into the said parcel of land. (c) N50, 000 general damages against the defendants jointly and severally for trespass" The Respondent/Cross Appellant was a witness (DW1) in the previous suit E/547/97. The late Chief Peter Ugwu was the Plaintiff, while the defendant was Strabag Construction Company Limited that claimed to be on the land in dispute by the leave of the Respondent. The 2nd and 3rd Appellants were not named parties in the previous suit, and were sued in present suit as claiming through or acting on behalf of Late Chief Ugwu. By a preliminary objection, the Appellants prayed for the dismissal of this suit on the grounds: a) The suit is incompetent. b) The suit is caught upon and frustrated by res judicata. c) The plaintiff is estopped from pursuing the claim, the basis of this suit. d) The Honourable Court is functus officio on the subject matter of this suit. 2

7 The Appellant s Preliminary Objection was dismissed by the lower Court in its Ruling delivered on 24th January, The Appellant was aggrieved by that decision and hence filed a Notice of Appeal on the following four grounds: 1. The trial Court was wrong when it held that the issue decided in suit No. E/547/97 was the same as the issue in dispute in the present suit. 2. The trial Court was wrong when it held that the subject matter in suit No. E/547/97 is the same as the subject matter in the present suit. 3. The trial Court was wrong when it held that there was a final decision on the issue of ownership of land in suit No. E/547/97 which could constitute an estoppel to the present suit. 4. The learned trial Court was wrong to have entertained the motion by the Defendants/Appellants, the subject of this appeal, when the Defendants/Appellants are estopped from raising the issue of whether the Applicant can bring an action for declaration of title against the Defendants/Appellants when the issue was already decided in suit No. E/547/97. A singular issue was distilled 3

8 for determination as follows: Whether this action is incompetent under the principles of res judicata/estoppel standing by and/or issue estoppel by reason of the decision in a previous suit E/547/97. The Learned Counsel for the Appellant appraised the crux of the Respondent/Cross Appellant s preliminary objection to the effect that in the light of the previous suit, No. E/547/97, late Peter Ugwu v Strabag Construction Company Limited, decided by the High Court of Enugu on 28/10/2002, this suit is incompetent. In said suit No. E/547/97, late Chief Peter Ugwu as Plaintiff claimed inter alia against the Defendant Company as follows: "(a) N3 million for the plaintiff's bedroom uncompleted bungalow built with cement blocks which said bungalow had been erected up to zinc level but entirely destroyed and pulled down by the servants of the defendant. (b) N10 million for 20, 000 tipper loads of earth at N500 each dug-up and entirely removed from the plaintiff layout by the defendant's servants. (c) 5.1 million for palm trees destroyed by the defendant, viz: (i) 45 palm trees planted sometime in 1965 by the Plaintiff with a 4

9 yearly production of about N500, 000 each since 1975 and will remain productive for about 20 years (sic) at the average rate of N300 per annum. (ii) 200 palm trees planted sometime in 1973 by the plaintiff with yearly production of about N60 since 1981 and will remain productive for about 30 more years (sic) at the average rate of N300 per annum. (d) N75, 000 for about 500 cassava plants belonging to the plaintiff destroyed by the defendants and worth about N15 each. (e) N3 million being the worth of thousands of other economic trees such as acacia, mango trees, guava trees, African oil trees, cashew trees in the plaintiffs said layout and destroyed by the defendant. (f) General damage (sic) in the sum of N20, 825, only." The Appellant s case in the said suit, E/547/97 as put forward in his further Amended Statement of claim dated 8/11/2002 was that he was the owner of the land in dispute by inheritance under the customary law of his people, and defendant company, without his leave or licence, unlawfully invaded the land in dispute and committed above itemized acts of trespass for which he claimed damages. The land in 5

10 dispute is situate at Akpasha in Akegbe Ugwuwhich. The late plaintiff in 1960 did a survey plan No. R/180/160 and in 1994, laid it into Peter Ugwu layout, containing 51 plots of land with plan No.189/84. The defendant company in its Amended Statement of Defence dated 9th November 2001, denied that the land in dispute was the property of the Late Chief Peter Ugwu, but the property of one Mr. Ujam Ugwu, the plaintiff who initiated the present suit, on whose command and authority, the defendant in the 1997 suit entered the land in dispute. Further, the defendant company averred that in 1982, late Chief Peter Ugwu sold and transferred the land in dispute, together with all rights or interests arising thereof and connected therewith to Mr Ujam Ugwu, Plaintiff in present suit who had ever since remained in possession. In the instant suit, HAGB/8/2006, Late Chief Peter Ugwu, plaintiff in E/547/97, was 1st Defendant/Appellant while Ugwu Ujam is the Plaintiff/Respondent. The 2nd and 3rd Defendants/Appellants are from the same community Umuatugbuoma Akegbe Ugwu. After full trial in E/547/97 the trial Court, per I. Umezuruike J gave judgement in favour of the 6

11 plaintiff holding that the doctrine of res judicata was not applicable to the case as it rests primarily on issues of facts as to whether parties, subject matter are same in both contending suits. It is imperative to fully state these facts for a proper and judicious appreciation of this appeal. From the facts and antecedents of this case, the crux of the issue in E/547/97, was between Late Peter Ugwu (replaced by 1st Appellant) and Ujam Ugwu, Respondent who testified as DW 1 in E/547/97 regarding damages done to the plaintiff s property and crops by Strabag Construction Company Ltd sued as defendant on the land in dispute. The basis for the preliminary objection is that the earlier suit and the subsequent one from which the instant appeal arose are more or less the same and therefore tantamount to res judicata. The principle upon which the defence of estoppel per rem judicata could be founded is clear, and it is shortly put by Bairamian, J. in KREKCHI Vs UAC LTD. 20 NLR 34 at page 38. "It is no doubt true to say that, whenever a question has in substance been decided or has in substance formed the rationale of, or been fundamental to the decision 7

12 in an earlier action between the same parties each party is estopped from re-litigating on the same question thereafter". See also the case of NEW BRUNSWICK RAILWAY CO. V. BRITISH AND FRENCH TRUST CORPORATION LTD. (1938) VOL. 4 (ALL E. R.) 747 AT 770. It is pertinent to observe that the learned trial judge after an exhaustive evaluation of the pleadings and evidence of the parties in respect of the issue of alleged transfer of title from Late Chief Ugwu to the DW1 in E/547/97 (Ujam Ugwu, present Respondent), the trial Court at page 61 of record vividly observed thus: "However, I am satisfied upon the pleadings and all the credible evidence adduced at trial that the plaintiff's title to the land which the defendant conceded to have existed until 1988 has not been legally disturbed. It still remains consecrated and subsisting. This is the holding of this Court. Upon this holding it therefore becomes clear that the plaintiff has stronger and better title to land therefore the law perforce must ascribe possession in his favour." Concluding, at page 62 of the record, the learned trial judge further observed thus: "For the reasons clearly adduced above, 8

13 the plaintiff is therefore the person in possession of the Peter Ugwu layout, the subject matter of this suit at all times material to this suit." When the Respondent who was DW1 in E/547/97 applied for leave to be joined as a party, his application was unsuccessful. The learned trial judge at the High Court Enugu, observed thus: I must not conclude this judgment without observing that upon the evidence presented by the defence though rejected by this Court asnot pleaded, the Plaintiff had received certain sum of about N44, from the DWI (Ugwu Ujam) for the purported transfer of interest in some portions of the land in dispute. The Plaintiff is therefore advised to take immediate steps to conclude and formalize the process of such transfer on those portions of the land in question to Mr. Ugwu Ujam or compensate him in correspondence with all the amount he Ugwu Ujam had expended and having regard also to the nose diving value of the naira since Exhibits 7, 8, 9 and 10 were made" (See pages 67 to 68 of Record). The Court of Appeal had no hesitation whatsoever in holding that the said extract was obiter, and simply an 9

14 advice, and so, was not appellable. The Court held as follows: "It is obvious from the foregoing that the trial Court gave just an advice to the parties in respect of the land the subject matter of dispute and this advice is supposed to create an awareness that there has been no proper transfer of title to the applicant in respect of the land. The plaintiff/respondent was given the option that the title be transferred to Ugwu Ujam properly or his money the sum of N44, be returned to him before it becomes useless due to the declining value of the naira. That portion of the judgment is only an obiter on which the applicant cannot appeal against. From the contents of the judgment, the decision has not caused him any grief, loss, or disadvantage. It is apparent from the brief of the applicant that he appreciates that the foregoing remarks of the learned trial judge was an advice." (See page 77 of the Record). It is therefore clear that the Respondent herein was not a party in previous case E/547/97 between the 1st Appellant and the Strabag Construction Co. Ltd and was advised to file another action for breach of contract in respect of the 10

15 sale transaction between the Respondent and 1st Appellant in present action because the cause of action in the instant case was a non-issue in the E/547/97. It is therefore clear that neither the parties nor the cause of action in suit number E/547/97 and the instant suit number HAGB/8/2006 are the same. The learned trial judge in the Ruling appealed against, (at page 270 of the Record) held as follows: "I am not satisfied that the parties are the same since the defendant has not established all pre-conditions. I hold that the plea of estoppel per rem judicatam cannot be sustained." The issue for determination is resolved against the appellant and in favour of the Respondent. Without much ado, the unmeritorious appeal is hereby dismissed. CROSS APPEAL: The following issue was raised for determination of the cross appeal: From the grounds of the Respondent's Notice, the following issues fall for determination. a) Whether the issues in suit No. E/547/97 are the same as the issues in the present suit. b) Whether the subject matter of Suit No. E/547/97 is the same as the subject matter in the present suit.

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17 c) Whether there was a final decision in suit E/547/97 on the ownership of the land the subject matter of this suit. d) Whether the Appellants were not estopped from raising the preliminary objection, the subject of this appeal, in view of the pronouncement of the Court of Appeal to the effect that the Cross-Appellant can institute an action over his transaction with the 1st Cross-Respondent. The Cross Appeal is however determinable on the question whether the subject matter in the two suits is the same? The principle of res judicata could be raised by the Defendant to show that the Plaintiff is re-litigating an issue or issues in the present suit, which have been finally and conclusively decided on the merits in a previous suit, between the same parties and their privies by a Court of competent jurisdiction. The Defendant is enjoined to plead these facts if the principle of res judicata is to be relied upon. Thus, the pre-conditions for its application are include that a party relying on it has to show: (1) That the identity of the parties and/or their privies in the previous case and the present case are the same; (2) The issues 12

18 and subject matter (i.e. identity of cause of action) litigated upon in the previous case and the present case are the same; (3) There must be a valid judgment of a Court of competent jurisdiction on the point or subject matter; (4) If the action concerns land (as here) there must be evidence that the land in the previous case is the same as in the present case. Each of these requirements must be proved as it is not a matter to be drawn by inferences. If any of the requirements is not proved the defence of Res judicata is inapplicable. See: INNOCENT IBERO AND ANOR. V. UME-OHANA (1993) 2 NWLR (Pt. 277) 510, IJALE V. LEVENTIS CO. LTD. (1961) 2 SCNLR 386, AGBASI V. OBI (1998) 2 NWLR (Pt. 536) 1, IKE V. UGBOAJA (1993) 6 NWLR (Pt.101) 539 at and OLORIEGBE V. OMOTESHO (1993) 1 NWLR (Pt.270) 386 at In view of my earlier observations, the holding of the learned trial judge that the parties in suit number E/547/97 and the instant suit are not the same was an understatement as the subject matter in the two suits are also fundamentally different, the fact that both suits relate to the same land notwithstanding. While the first case was 13

19 premised on damages for trespass and destruction structures and crops on the land, the instant action is on claim of title to the land and breach of contract. The two causes of action are glaringly different and the parties are clearly not the same as well. Without much ado, the issue in the cross appeal is resolved in favour of the 1st Respondent/Cross Appellant and against the Appellant/Cross Respondent. The cross appeal has merit and is hereby allowed. The main Appeal, as per the foregoing analysis, is devoid of merit and hereby dismissed, while the cross appeal is meritorious and accordingly allowed. There shall be costs to the Respondent/Cross Appellant assessed at N100, against the Appellant/Cross Respondent. MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in draft the leading judgment of my learned brother, HUSSEIN MUKHTAAR, JCA and I entirely agree that neither the parties nor the cause in the instant case and that of appeal no. CA/E/547/197 are the same. Hence, the doctrine of Res judicata is clearly inapplicable. The cross-appeal has therefore succeeds while the 14

20 main appeal is bereft of any merit. I too allow the crossappeal and dismiss the main appeal. I subscribe to the consequential orders as to costs. FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment of my learned Brother HUSSEIN MUKHTAR, JCA just delivered and I am in agreement with his reasoning and conclusions in disallowing the Appeal as lacking in merit and therefore fails, while the Cross-Appeal is allowed. I too will award a cost of N100, against the Appellant/Cross Respondent and in favour of the Respondent/Cross Appellant. 15

21 Appearances: Prof. Ilochi Okafor, SAN with him, M. C. Ukpai, Esq. and Amara Ndife, Esq. For Appellant(s) Prof. Osita Nnaneni Ogbu For Respondent(s)

(2018) LPELR-44208(CA)

(2018) LPELR-44208(CA) OKAFOR & ORS v. EZEATU CITATION: HUSSEIN MUKHTAR In the Court of Appeal In the Enugu Judicial Division Holden at Enugu ON TUESDAY, 13TH FEBRUARY, 2018 Suit No: CA/E/165/2015 MUHAMMED LAWAL SHUAIBU FREDERICK