Azuetonma Ike & Ors v. Iloabueke Ugboaja & Ors

I have had the advantage of reading in draft the judgment read by my learned brother Olatawura, J.S.C. For the reasons and conclusions which he has reached therein, with which I am in full agreement, I too will dismiss the appeal.

Accordingly, it is hereby dismissed with N1,000.00 costs to the respondents.

I have read before now the judgment of my learned brother, Olatawura, J.S.C. and I agree with his reasoning and conclusion. For those same reasons, I also dismiss the appeal as lacking in merit.

The plaintiffs (appellants herein) filed an action in the High Court of Anambra State (Amawbia/Awka Judicial Division) against the defendants (respondents herein) claiming a declaration of entitlement to customary right of occupancy in respect of “Ala Aguegbebi” land situate in Umuomaku; N600 damages for trespass by defendants in 1979 on the said land; forfeiture of the area of land verged green in Plan No.E/GA/298/64 in Suit No.54/64, which said land was granted to defendants by plaintiffs’ ancestors, and recovery of possession of the said land; an order of perpetual injunction restraining defendants, their agents etc, from further trespass on the said land.

In support of their claim the plaintiffs relied on their traditional history; acts of ownership, prominent among which is the averment that part of the land in dispute was granted to defendants ancestors, in acknowledgment of which tribute was given and received; and “estoppel per

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rem judicatam”, in that on 19/8/64 the Mbamisi District (Customary) Court awarded title to the said land to the plaintiffs which was confirmed on appeal (Suit Nos. 54/64 and 30/64). The defendants who also relied on their traditional history, set out in their pleadings, several acts of  ownership and rejected plaintiffs plea of estoppel per rem judicatam. They admitted that there had been a dispute over the land, which they call “Mbubo, Ohiagu”, in the Customary Courts, but averred that those courts granted possession of the land to them.

Both parties trace their origin to a common ancestor Okpulukpu. Whilst the plaintiffs descend from Eze (Ezeolu), the defendants descend from Dim, both Eze and Dim being sons of Okpulukpu. The divergence/conflict begins thereafter. According to the plaintiffs, who claim that their ancestor Eze is the first son of Okpulukpu, their common ancestor divided his lands, inter vivos between his two sons, the plaintiffs’ share being the land in dispute, whilst the defendants got “Ani Ngodo” land. The defendants, on the other hand, state that Dim was the first son of Okpulukpu, his second and third sons being Ezeolu and Ezekwem respectively. On the demise of Okpulukpu his first son Dim succeeded him and inherited all his father’s lands. He retained, inter alia, the land in dispute for his own use and allocated the plaintiffs “Ikpaezeukwu” and other lands.

The two parties led evidence in proof of their claims and tendered exhibits. In it’s judgment, after hearing for the parties, the trial High Court dismissed the plaintiffs claim. It held the traditional evidence to be contradictory and inconclusive. It also rejected the plea of estoppel per rem

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judicaram taking the view that the cases relied on by the plaintiffs are res inter alios act a since the parties in those cases have not been shown to be the same as those in the present action. On appeal, the Court of Appeal affirmed the judgment of the High Court holding that the plaintiffs had failed to establish their case both on the plea or res judicata and the traditional evidence it led.

On further appeal to this Court both parties filed their briefs of argument and elaborated on them by making oral submissions.

The plaintiffs (appellants here) set out six issues for determination in their brief, which read thus-

“1. Was the Court of Appeal right in ‘upholding the decision of the trial Court that the plea of Res Judicata must fail on the basis that the parties in, this case and those in Exhibit ‘c’ are not the same, when in fact, the Octogenerian, Mr. Azietonma Ike who testified in Customary Court (Exhibit ‘C’) was the same person who testified in this case?

2. Were the minds of the Justices of the Court of Appeal as well as the Judge of the Court of first instance affected by (to borrow Justices Uyanna’s language at p.74 of the records) the “Starling factor” that Suit No.22/64 “filtered” into appellants 2 Plans and, did it affect the fortunes of the plaintiffs plea of Res Judicata?

3. Did the Court of Appeal adopt that correct approach when it failed to consider GROUND 3 of the Grounds of Appeal which complained that the trial Judge Suo Motu raised the issue, that he found the number Suit 22/64 on the appellants Plan but failed to invite appellant’s Counsel to explain?

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4. Did the Court of Appeal resolve whether Mr. Azietonma Ike who testified in the Customary Court (Exhibit ‘C’) for the plaintiffs was the one and same Azietonma Ike who testified in Customary Court of Appeal (Exhibit ‘D’) and still the same Azietonma Ike who testified in the present case for the Appellants, and how the appellant’s case failed to satisfy the test of parties, for purposes of a plea of Res Judicata?

5. Were the High Court and the Court of Appeal Justices justified in interfering with concurrent findings of fact reached by the Customary Court Judges in Exhibit ‘C’ and ‘D’ respectively when there was no evidence that the said judgments were tained with some miscarriage of justice or that there was a violation of some principles of law or procedure which would otherwise justify such interference within the principle laid down by the Supreme Court of Nigeria in Nwobodo Ezendu & Others v. Isaac Obiagu(1986) 3 S.C. PAGE 1 at p. 21 – 23.

6. Did the Court of Appeal, as indeed the High Court Awka adopt the correct approach when they neither considered the appellants case, and worse still failed to weigh the case of the disputants on the immaginary scale in accordance with the principle enunciated by the Supreme Court of Nigeria of Mogaji v. Odofin (1978) 4 S.C. p.91.”

The respondents set out the issues for determination in their brief differently as follows:-

1. Did the Justices of the Court of Appeal err in Law in upholding the decision of the Awka High Court that the appellants failed to prove their plea of res judicata. This can be narrowed down to the specific issue of whether the

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Court of Appeal was right in upholding the decision of the Awka High Court that the appellants herein failed to prove by preponderance of evidence that the plaintiffs in the Customary Court case are the same as the plaintiffs in the present Suit. (Ground 1 of the Appeal)

2. Did the Court of Appeal fail to consider Ground 3 of the appellants’ ground of Appeal in the Court below. If it did, did that lead to a miscarriage of Justice. (Ground 2 of the Appeal)

3. Did the Court of Appeal fail as the Awka High Court did, to consider the case of the appellants and still more the case of the parties in this case in accordance with the principle enunciated by the Supreme Court of Nigeria in the case Mogaji v. Odofin. (Ground 3 of the Appeal)”

The first two issues for determination as set out by the appellants and indeed the third relate to the treatment of and decision on the appellants plea of res judicata. What the appellants contended in the trial court is that the land presently in dispute had been decided in Mbamisi Customary Court and Customary Appeal Court in Suit Nos 30/64 and 56/64 as belonging to the appellants. The respondents on the other denied this averment contending that there had been no previous litigation between the parties and more specifically that the action relied on were not between the parties in this case. In his address, counsel to the respondents narrowed his denial to the question of difference in the capacity in which those actions were taken and the present action. Whilst the present action has been brought in a representative capacity, the previous actions were brought in a personal capacity. The latter action cannot therefore be relied

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upon, he finally submitted, to ground a plea of estoppel per rem judicatem: The learned trial judge however upheld the submission of appellant’s counsel that on a close look at the cases, and relying on their substance (they being Customary Court cases), the action were brought in a representative capacity. The respondents both in their pleadings and in their address before the trial court did not rely on another objection to the plea of res judicata. It was the learned trial Judge who in his judgment took up the sub-issue that whilst the plaintiff in the 1964 cases – one Azietonma Ike – then used as representing the Uhuofia family (Exhibit C refers),the same person led others as 1st plaintiff in the present action to sue as representing the Umnonuegbe Umu Umeoha Umuokpulukpu Quarter of Umuomaku. He further observed that the plan relied on and tendered by the plaintiff in 1964 showed him as suing for Umumeoha Uhofia. On the ground that there was no evidence to show that the different families/quarter averred are the same the learned trial Judge held that the capacities in which the 1964 and present action were instituted have not been proved to be the same Appellant’s counsel has argued that this is a mere technicality and that the two family names are the same. Can this be decided suo motu by the trial court or indeed this Court without evidence before it to say so? The submission of the respondents that-

“The plaintiffs neither pleaded not gave evidence that Uhuofia family is the same as Umuouuegbe family, nor indeed gave any evidence of the relationship between Uuhofia family and Umuonuegbe family” seem to

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determine this sub-issue. It is often the case that family names are loosely used. The plaintiff’s as per the writ of summons are from Umuonugbe Umu-Umeoha (Umumeoha) of Umuonuegbe quarters of Umuomaku town. Anyone testifying for the plaintiffs can say that he or they belong to a family bearing any of the first three names underlined, and not be faulted in their circle. It is only Umuomaku that is the name of the town of both parties. Similarly, it is not unoften that persons are called by reference to the land/town from which they originate. Uhuofia is incidentally the name of the land on which both parties live. But it is the duty of counsel, where a plea of res judicata is being relied upon, to ensure that evidence is led to show that any differing family names used in documents relied upon to support the plea in fact refer to the same family. This counsel has failed to do here. A plea of estoppel per rem judicatam deprives the court of jurisdiction to proceed from further determining an issue to which it relates, if it succeeds. All the ingredients thereof must therefore be proved. No part of them can be presumed. The appellants having failed to prove Uhuofia and Umuneoha are the same, cannot successfully rely on the 1964 cases to found estoppel per rem judicatam.

The second ground on which the plea of res judicata appears to have foundered is the “filtering” of the words “Suit No.22/64 into appellants’ two plans in the Customary Court, when the numbers of the relevant suits are 30/64. In the view of the trial Judge this rasies some doubt on the authenticity of the plan, and its user to support the appellants plea of res judicata. Here again the learned trial Judge made this observation himself. Counsel for the

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respondents did not raise it. If the wrong suit number on the plan had any significance, he certainly would have done so. I do not think this error on the plan, which was in fact used in the 1964 cases, as the witness who produced them from proper custody testified to, without being controverted, affects the case of the appellants. The learned trial judge certainly tried to make a mountain out of a mole hill by describing his “discovery” as a “startling factor”. It cannot be so described. The Justices of the Court of Appeal should have found for the appellants on this ground. I so do, and add that the wrong finding of the trial judge has not in my view occasioned a miscarriage of justice.

Having arrived at the conclusion that the plea of res judicata does not avail the appellants, the learned trial judge considered the evidence led. He found appellants traditional evidence no satisfactorily established, coming to the conclusion on this sub-issue that on declaration can be granted to the appellants on the basis of “contradiction and inconclusive” traditional history from which he is unable to decide the ownership of the land in dispute. The Court of Appeal affirmed these findings which are therefore both concurrent and not perverse. For these reasons, which have been more fully considered in the lead judgment of my learned brother Olatawura, J.S.C., I also uphold he decision the court below affirming the judgment of the trial court dismissing the appellants’ claim, with N1000 costs to the respondents.

I have had the advantage of a preview of the judgment of my learned brother Olatawura,

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J.S.C. just delivered. I agree with him that this appeal is lacking in merit and ought to be dismissed. I only wish to add a few words of my own.

The facts, have been fully set out in the judgment of my learned brother; I need not go over them again. Suffice it to say that plaintiffs (who are now appellants) based their claims for declaration of entitlement to customary rights of occupancy, damages for trespass, forfeiture and injunction on two pillars, that is to say, traditional history and res judicata pleaded in paragraphs 3 and 8 respectively of their statement of claim. These paragraphs read:

“3. TRADITIONAL HISTORY: The plaintiffs defendants are descendants from a common ancestor known as Okpulukpu. The said Okpulukpu had 2 sons by the names of Dim and Eze. Okpulukpu divided his land between his sons in his life-time. Eze the ancestor of the plaintiffs gotthis land of’Ana Aguegbebi’ Whilst Dim the ancestor of the defendants got the land known as and called’ Ani Ngodo’ which is separate and distinct and remote from the disputed land.

The said Eze begat Umeoha who begat Aguegbebi who begat the plaintiffs, in the meantime Dim left with his children for Ani Ngodo and later for Ezira. And some of Dim’s descendants were later being maltreated at Ezira and so the plaintiffs ancestor Umeoha brought some of them back and settled them on part of the land in dispute verged Green on Plan No. E/GA298/64 i.e Ani Aguegbebi and upon terms. In return for the said grant the defendants paid tribute of 8 yams, 4 pepper, 8 kola nuts

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and Palm wine annually to the plaintiffs, and continued to do so until 1964.

8. The plaintiffs plead Estoppel Per Rem Judicatem against the defendants.”

The defendants (who are now respondents) in reply, pleaded in paragraphs 4 and 5 of their amended statement of defence their own version of the traditional history and, in paragraph 7, averred that res judicata did not apply.

The learned trial judge at the conclusion of trial and after addresses by learned counsel for the parties found against the plaintiffs and dismissed their claims.

Being dissatisfied with the dismissal of their claims, the plaintiffs appealed unsuccessfully to the Court of Appeal. It is against the decision of the Court of Appeal dismissing their appeal that the plaintiffs have now further appealed to this Court upon three grounds of appeal, which without their particulars read:

“1. ERROR IN LAW

The learned Justices of the Court of Appeal erred in law in upholding the decision of the trial court that the plea of res judicatem (sic) must fail in that the appellants did not establish any nexus between the names Uhuohia Family in Exhibit C and the Umuonuegbe Family used in the present proceedings.

2. The Court of Appeal Justices erred in law by failing to consider Ground 3 of the Appellants’ grounds of appeal in the Court below.
3. The judgment is against the weight of evidence.”

Learned counsel for the parties set out in their respective

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written briefs of arguments what they consider the issues arising for determination in this appeal. Plaintiffs’ counsel set out 6 issues while defendants’ counsel set out 3 issues. Having regard to the judgment appealed against and the grounds of appeal, the issues as set out in the defendants’ brief are to be preferred. They are more in line with the issues arising, in my respectful view, in this appeal and are fully encompassed by the grounds of appeal. These three issues read:

“ISSUE No.1

Did the Justices of the Court of Appeal err in law in upholding the decision of the Awka High Court that the appellants failed to prove their plea of res judicata. This can be narrowed down to the specific issue of whether the Court of Appeal was right in upholding the decision of the Awka High Court that the appellants herein failed to prove by preponderance of evidence that the plaintiffs in the Customary Court case the same as the plaintiffs in the present Suit. (Ground 1 of the Appeal)

ISSUE NO. 2

Did the Court of Appeal fail to consider Ground 3 of the appellant’s ground of appeal in the court below. If is did, did that lead to a miscarriage of justice (Ground of Appeal)

ISSUE No.3

Did the Court of Appeal fail as the Awka High Court did, not consider the case of the appellants and still more the case of the parties in this case in accordance with the principle enunciated by the Supreme Court of Nigeria in the case of Mogaji v. Odofin. (Ground 3 of the Appeal)”

I shall now proceed to consider the three issues, particularly

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Issue 1.

ISSUE 1.

This issue relates to the plea of res judicata raised by the plaintiffs in paragraph 8 of their statement of claim and based on the Customary Court proceedings pleaded in paragraphs 6 and 7. These paragraphs read:

“6. In consequence, the plaintiffs took out declaratory action against the defendants in the Mbamisi Customary Court in Suit 54/64.

7. On the 19th August, 1964 the court awarded title to the said land on the plaintiffs and upon appeal by the defendants the appeal was also dismissed in Suit No.30/64 of 28/9164. The said judgments together with the Survey Plan No.E/GA298/64 will be founded upon at the trial.”

The defendants in paragraph 6A of their amended statement of defence pleaded, in reply thus:

6A. The defendants vehemently deny paragraphs 6 and 7 of the Statement of Claim. In further answer the defendants deny any knowledge of the said Suits No. 54/64 and 30/64 together with Plan NO. E/GA298/64 and further aver that in any event any such proceedings are totally irrelevant to the present proceedings on the ground that they are res inter alios acta.”

The proceedings of Mbamisi District Court in Suit No. 54/64 and the judgment of the Akwa County Court in Suit No.30/64, on appeal from Suit 54/64 were tendered in evidence at the trial as exhibits C & D respectively. The parties in Suit 54/64 which went on appeal as Suit 30/64 in the County Court were Azietonma Ike as plaintiff AND

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Godfrey Mba, Nathaniel Onwudiwe, Nnadiekwe Onwudiwe and Clement Mba as defendants. The proceedings would appear however to show that the plaintiff sued on behalf of his UHUOFIA FAMILY while the defendants equally defended as representing their Family too. Indeed, the learned trial Judge as found, and quite rightly too, that the parties in that case sued and defended in representative capacities.

In the present proceedings, the plaintiffs sued “for themselves and on behalf of UMUONUEGBE UMU- UMEOHAUMUOKPULUKPU QUARTER OF UMUOMAKU”. The defendants were sued as representing themselves and members of “UMUOHIAGU FAMILY OF UMUOMAKU”. No scintilla of evidence was led in the present proceedings to show that UHUOFIA FAMILY on whose behalf the action 54/64 was instituted was one and the same as UMUONUEGBE UMU-UMEOHA UMUOKPULUKPU QUARTERS OF UMUOMAKU on whose behalf the present action was instituted. Nor that the latter family was a privy of the former family. Indeed, the 1st plaintiff in the present action, AZUETONMA IKE (and the only plaintiff to testify at the trial) was the plaintiff in Suit 54/64. In the present action he testified thus:

“I am from Umuokpulukpu family in Umuomaku” (Italic is mine)

Cross-examined, he deposed thus:

“I said that in 1964 I had and action in connection with this land with the defendants. I was the plaintiff in the case. In that earlier suit I explained that the land in dispute then was that of Umuonuegbe. I claimed in that suit that the

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disputed land belonged to Umumeoha family.”

In Suit 54/64 this same witness had testified in the District Court as follows:

“The land in dispute is known and called’ Aguegbuebi’. I am from UHUOFIA FAMILY and the defendants are from the family of Ngodo.”

The learned trial Judge observed:

“I think I should before reviewing further evidence in this proceedings consider the issue of res judicata to which both counsel have addressed me extenso. I take the main ingredients of the plea of res judicata. A lot has been said on this by the parties, Are the parties the same? After reading through the proceedings in Exhibit C I have no difficulty that the suit was taken out in a representative capacity. From the evidence and defence of the defendants the impression is readily drawn that the defendants were speaking for themselves and their people. But this inference has not disposed of the question whether the parties are the same.

In his evidence in Exhibit C, the plaintiff in that court (1st plaintiff in this Court and P.W.4) said, ‘I am from Uhuofia family.’ In Exhibit E the plan used in Exhibit C, it is stated that the 1st plaintiff in this case, then sale plaintiff in Exhibit C sued for and on behalf of Umumeoha – Uhuofia. Is Umumeoha Uhuofia the same as Umu-Onuegbe? In the course of his evidence, (1st plaintiff) in this case, the name Onuegbe was a constant refrain but he made no mention of Uhuofia as one of his ancestors. What is the relationship between ‘Uhuofia’ and ‘Onuegbe’? How has it come that this plan Exhibit E on which reliance is placed by the plaintiffs and on which res judicata is based was

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made for the plaintiffs’ family of ‘Uhuofia’ and the plan in the present case Exhibit F, it is made for plaintiffs of ‘Umuonuegbe family’. While it is accepted that the strictness attached to proceedings in the Customary Courts should be relaxed in matters of procedure and form in this proceeding the name of the plaintiffs in the Customary Court is more than a mere matter affirm in view of the defence of the defendants that the two suits do not concern the same parties. It as not been expressed in the evidence the nexus between ‘Uhuofia’ in the earlier proceedings in the Customary Courts and ‘Umuonuegbe’ in the present proceedings.”

Having regard to the different capacities in which AZIETONMA IKE sued in Suit 54/64 and joined 3 others in suing in the present proceedings, and in the absence of evidence to show that the two capacities are one and the same, that is the two families on whose behalf he sued in the two actions, are one and the same, I fail to see how the learned trial judge could be faulted in his finding that:

“The plaintiffs have not shown preponderantly by the evidence they tendered that the parties in the previous as in the present suit are the same.”

The Justices of the Court below were clearly right in affirming that finding. A long line of cases has laid it down that before a plea of res judicata can succeed, it must be shown that the parties, issue and subject-matter are the same in the previous action as those in the action in which the plea is raised – see, for example: Iyayi v. Eyigehe(1987) 3 NWLR (Pt.61) 523, 533; Ijale v. A.G. Leventis (1961) 1 All NLR 762; Alashe & Ors. v. Olori Ilu & Ors. 1 (1964) All NLR 390, (1965) NMLR 66; Fadiora v.

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Gbadebo (1978) 3 SC 219; Nkanu v. Onun (1977) 5 SC 13; Oyagbola v. Aremu (1992) 8 NWLR (Pt.259) 326. See also Sepncer Bower and Turner on RES JUDICATA (2nd edition) paragraphs 210-215 at pages 179-186. Where the parties in the previous action are not the same as those in the subsequent action, a previous judgment cannot operate as estoppel per rem Judicata – see Okorie v. Akurunwa(1972) 8-9 Sc. 21O. In view of the findings of the learned trial Judge and affirmed by the Court below I can, with respect, find on merit in the submissions both in his brief and in oral arguments, of learned counsel for the plaintiffs, Mr. Anyaduba, on this Issue.

Before I conclude my decision on this Issue, I need point out that the plea of res judicata is not available to a plaintiff as a basis of his claim except by way of a reply to a defence raised by the defendant in a statement of defence. A successful plea of res judicata ousts the jurisdiction of the court before which it is raised. A plaintiff cannot be seen to be raising a plea that will oust the jurisdiction of the court to entertain the action he has brought before that court. As it is generally stated, the plea is a shield rather than a sword. See: Salawu Yoye v. Lawani Olubode & Ors. (1974) 10 SC 209, 220-222 where Ibekwe J.S.C. (as he then was) delivering the judgment of this Court, observed:

“…….It is also relevant to stress that, once the plea of res judicata has been established, the jurisdiction of the court would be ousted. It therefore, sounds anomalous that the same plaintiffs/respondents who had invoked the jurisdiction of the court ab initio, were also the party that thought if fit to attack the court’s jurisdiction.

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For, that is exactly what the plea of res judicata would in the particular circumstances of this case, amount to. It is well-known that, before the doctrine of res judicata can operate, it must be shown that the parties, issues, and subject-matter were the same in the previous case as those in the action in which the plea of res judicata is raised. It is also well-settled that, once the plea is made out by the party seeking to rely upon it, the claim filed by the other party would be dismissed on the ground that the court lacks jurisdiction to allow parties to re-litigate the same issues again.

The plea of res judicata therefore, robs the court of its jurisdiction; and that explains why, in practice, the plea has always been used only as a defence. It is a formidable weapon which may be pleaded in the Statement of defence or in the plaintiff’s Reply to the statement of defence, should the need arise, But, by its very nature res judicata should have no place in the Statement of Claim. It is unreasonable for the plaintiff to embody in his own claim the plea of res judicata. In our view, such a course of action would lead to an absurdity. Indeed, it is unthinkable that the very plaintiff who invokes the jurisdiction of the court should afterwards turn round to plead that the same court has no jurisdiction to hear his claim. We would liken such plaintiff to a man who, while praying fervently for long life, yet carries in his pocket, a time-bomb which, on explosion, would end his life.”

This is not to say however, that a plaintiff cannot raise a plea of issue estoppel or any other form of estoppel other than estoppel per rem judicatam. Even on this ground, therefore, the second pillar on which plaintiffs’ case rests must collapse.

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ISSUE 2

Plaintiffs’ ground 3 before the Court of appeal reads:

“3. ERROR IN LAW:

The learned trial Judge erred in law and misdirected himself by raising the issue of Suit No.22/64 appearing on Exhibit ‘F’ when the defendants did not join issue on this point.

The same insertion of Suit No. A/13/80 can be found in defendants plan which was meant for 2 cases namely SuitNo.A/13/80 and Suit No.A/30/80.

The learned trial Judge failed to take into account that one plan could serve dual or more purposes and in more than one or more cases.”

It is plaintiffs’ contention before us that this ground was never considered by the Court below. This complaint would appear to be will taken as no reference was made in the judgment of the Court below to this complaint. But that effect has this failure on the judgment of the Court below? None, whatsoever.

Exhibit F was admitted at the trial by consent of both learned counsel as plaintiff’s plan: Consequent on the evidence of P.W.3, Ejike Chidoluc, a licensed surveyor, to the effect that

“I have never heard the names of the plaintiffs in this case. I do not know the people of Umuonuegbe – Umuomaku”

The learned trial Judge made the following note in the record:

“NOTE: In view of the condition of the Surveyor who looks extremely unwell the court suggested to the counsel for

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the defendants if the plan could not be shown to the witness to identify as he appears not to remember any names, apparently because of his condition which must have affected his memory. Mr. Nri Ezedi quite understandingly acceded and said he would not mind if the plans are admitted by consent. Mr. Okonkwo Abutu for Anyaduba hesitated but when he was left with no other option welcomed the gesture from Mr. Nri Ezedi that the plans could be admitted by consent.

BY COURT: Plans admitted by consent. Plaintiff’s plan No.: ECAS/57/80 is admitted, tendered and marked Exhibit F. Defendants’ plan No. PO/E189/80 is admitted, tendered and marked Exhibit G. Evidence proceeds Mr. Okonkwo Abutu shows Exhibit ‘F’ to the witness.

BY COURT: Mr. Abutu says he no longer wishes to ask further question.

CROSS-EXAMINATION BY NRI EZEDI:

Note: Mr Nri Ezedi says he would have asked questions but for the condition of the Surveyor.”

There are some notes on the plan one of which reads: “Buildings erected by the defendants without consent of the plaintiffs Cause of Action in Suit No.22/64 & 54/64”. Commenting on this note, the learned trial Judge, in his judgment. observed:

“Another startling factor which emerged in the course of my careful reading of the plaintiffs’ two plans are in my view bound to affect the fortunes of the plaintiffs in their plea of res judicata. In the plan Exhibit Fit was headed – ‘Plan showing land in dispute in suit No. 22/64. How has this suit number filtered into this plan?

Neither the plaintiffs’ counsel nor the defendants’ drew my

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attention to this. All along the suit number in the District Court was 54/64. There was no evidence by the plaintiffs that there had been any previous suit over this land apart from suit No. 54/64. To emphasize the confusion in the plaintiffs’ case and in a way seem strengthen the defence of pleas against estoppel per rem judicatam. I have looked on plan Exhibit F in this proceeding. To the South- West of the land in dispute there is indicated on the plaintiffs 7 plan. House of Gilbert Igwilo cause of action in Suit No. 22/62. Again there is another indication to the South within the plan Exhibit F the following: ‘Iloabueke defendant cause of action in Suit No.22/64. If one could concede that a mistake might have been made on Exhibit F by inserting Suit No.22/64 how could reference to the suit in Exhibit F be explained? Were they two suits: 22/64 and 30/64? But there was no evidence of this kind.

A party must rest his case on his pleadings. The plaintiffs have rested their case mainly on resjudicata based on the judgment in Suit No. 30/64. It has now turned out that the Suit No. was 22/64. A party must succeed or fail on the strength of his pleadings; Emegakwue v. Okadigbo (1973) 3 Sc. 129, Chief Victor Woluchem v. Chief Simon Gudi. (1981) 5 S.C. 291 at 320.”

It is this observation that was the basis of the complaint in ground 3 before the Court of Appeal which was not touched upon by that Court. Exhibit C – the proceedings in the District Court case pleaded and relied on by the plaintiffs bears the number 30/64. The number 22/64 in the note in Exhibit F either must have probably been inserted in error by the surveyor or there was such an action not pleaded nor relied on in the present action. In

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my respectful view, the observation of the learned Judge in the passage quoted above is just much a – do about nothing. It does not affect the point on which the issue of res judicata was decided, and that is, that the parties in the earlier and present suits are not the same.

I do not, however, agree that by making the observation in the passage the learned trial Judge was taking suo motu a point not canvassed by the parties. Exhibit F was admitted in evidence by consent. The learned Judge was entitled, in my respectful view, to comment on the Exhibit in so far as it affected the case of either party, particularly the party that tendered and relied on it.

I must therefore answer the second question posed in Issue 2 in the negative.

ISSUE 3 ‘

The learned trial Judge after a painstaking evaluation of the evidence before him found that the traditional history relied upon by the plaintiffs was not satisfactorily established. The learned Judge found as follows:

“Plaintiffs pleaded their traditional history in paragraph 3 of the Statement of Claim. The defendants traversed this pleading fully in paragraphs 4 and 5 of their Statement of Defence. I have considered the evidence of the parties and their pleadings on traditional history of the land. Experience in land matters of pleading and evidence on traditional evidence is that for the most part it is sheer fantasy on both sides. This is not to say that in every case the parties have set out on a deliberate course to mis-state the facts. The main reason is that the source of this kind of pleading and evidence is vague and uncertain. The facts are headed down from generation to generation

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by oral tradition and in the process the primary facts are diluted and distorted, sometimes deliberately, by one side or the other to suit its case. This present case is not free from this inherent defect.

On one fact the parties are in complete unanimity. They agree in their evidence and pleadings that they had a common ancestor called Okpulukpu. They begin to part ways on how many issues Okpulukpu had. While the plaintiffs maintain that he begat two male issues, namely: Dim and Ezeor Ezeolu, the defendants on the other hand say that Okpulukpu had 3 males as follows: Dim, Ezeolu and Ezegwom. Of course they agree on their primary lineage from Okpulukpu. The lineage of the plaintiffs is Eze and that of the defendants, Dim. They did not agree on how many sons and the order of seniority of the descendants from the two direct sons, namely: Dim and Eze. The 1st plaintiff on record (P.W.4) testified as follows: Eze begat (Umeoha, who begat Onuegbe, who begat Aguegbebi). Aguegbebi begat (lke, who begat Azietonma – the fourth plaintiff). At another time he would say that Umeoha begat Aguegbebi who begat Onuegbe who begat him the (4th Plaintiff). Plaintiffs’ case is that one of the sons of Umeoha called Onuegbe as their great great grand father of his own lineage owned this land in dispute belonging to one of the sons of Umeoha called Aguegbebi. Umeoha had granted to the great grand father of the defendants, Ohiagu who plaintiffs referred to as the grandson of Umeoha the portion verged green in plan NO. ECAS/57/80 to live.

Later in the course of history the descendants exceeded this area verged green and encroached on the area

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verged pink. Plaintiffs case is that because of this expansion beyond the area verged green the plaintiffs took out an action which is the basis of the estoppel pleaded in paragraph 7 of the Statement of Claim. This plea of estoppel and the defence thereto will be referred to later.

On this question of traditional history the defendants just as the plaintiffs mis-stated some links in their own chain of historical evidence. One of the defence witnesses (to be precise D.W.3) said that Ohiagu was the father or Dim. Both parties are agreed that Dim was a direct son of Okpulukpu. From the account of D.W.3 Ohiagu their great grand father would be about two generations removed from Okpulukpu. The defendants also plead and gave in evidence that it was Ohiagu who owned the portion of land in dispute originally but following a request by the plaintiffs’ ancestor, Umeoha, Ohiagu granted him the portion now in dispute for which Umeoha was paying tribute to Ohiagu – which payment continued down the line.

From the pleadings and the evidence on the traditional history, it is not clear which story to accept as to who owns the land. As it is, the reliefs soughts by the plaintiffs cannot be decreed on the basis of traditional history as it is contradictory and inconclusive.

The Court of Appeal, per lkwechegh J.C.A., agreed with the learned trial Judge when it observed:

“It seems, to me that the judgment dismissing the appellants’ claims dealt adequately with the issues which the evidence before that court raised, and the matters are within a very narrow circumference, to wit, whether the

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traditional history of the appellants was satisfactory to establish their claims, and/or whether the plea of res judicata was made out as against the respondents. In my view, with this narrow pale the trial judge validly and adequately dealt with the case before him, and came to the right conclusion that the plaintiffs’ claims failed.”

These are concurrent findings of fact of the two courts below. This Court will not disturb such findings unless a substantial error apparent on the face of the record of proceeding is shown or such findings are perverse see Sobakin v. The State (1981) 5 SC 75; Enang v. Adu (1981) 11-12 S.C. 25; Ibodo v. Enarofia (1980) 5 – 7 S.C. 42;Chiwendu v. Mbamali (1980) 3-4 S.C. 31, Njoku v. Eme (1973) 5 S.C. 293; Ige v. Olunloyo (1984) 1 SCNLR. 158. I am not satisfied that the findings of the two courts below under attack are perverse nor that any substantial error is shown on the face of the record. I am satisfied that the findings are adequately supported by the evidence before the trial court. I therefore have no reason to disturb these findings of fact made by the learned trial Judge and affirmed by the Court below.

In conclusion, for the reasons given above by me and the other reasons given in the judgment of my learned brother Olatawura J.S.C., I too dismiss this appeal and affirm the judgment of the Court below. I award N1,000.00 costs of this appeal to the defendants.

Appeal Dismissed.