Mackson Ikeni & Anor v. Chief William Akuma Efamo & Ors

This appeal arose from the decision of the High Court of the Rivers State (Ndu, J) by which judgment was entered for the present respondents (then and now referred to as “the plaintiffs”) against the present appellants (then and now referred to as “the defendants”) in the following terms:

“1. A declaration is hereby made to the effect that the plaintiffs herein. (i.e. the Ekoni family of Opume or Opomatobo) are entitled to the customary right of occupancy in respect of the land known as EDUMATA EMENI alias “EDUMAYO” adjudged In their favour by the Oloribiri Native Court in Suits Nos. 17/58 and 18/58 respectively which land is delineated and verged RED on Survey Plan No. BOE/R17/90-LD (Exhibit – P5) dated 19th November 1990.

2. A declaration is hereby made that all the issues already decided relating to the original settlement of Edumata Emeni alias “Edumayo” land by the Oloibiri Native Court in cases Nos. 17/58 and 18/58 are binding on both the plaintiffs and the defendants in this present action.
3. The defendants, i.e. the Ake and Ogidi families of Akipelai their privies, servants and agents, are hereby restrained by an order of perpetual injunction from interfering with the rights of the plaintiffs to the scope and extent already recognized and adjudged in their favour by the Oloibiri Native Court in suits Nos. 17/58 and 18/58 as shown and verged RED on Survey Plan No.BOE/R17/90 – LD dated 19th November 1990 (Exhibit-P5)”

That court also dismissed the defendants’ counter claim. The defendants not being satisfied with the decision, appealed to the Court of Appeal which in a unanimous decision dismissed their appeal and confirmed the decision of the High Court.

P.1

The plaintiffs’ claim was substantially in terms of the declaration granted them by the High Court. The suit was apparently, to render more certain the identity of the subject-matter of the judgments in their favour granting them title to the lands claimed by them as against the defendants in actions instituted by them in the Oloibiri Native Court, suit. 17/58 (Exhibit P3) and 18/58 (Exhibits P4), (“the Native Court suits”). They had sought to do this by obtaining declarations of right to customary right of occupancy based on ownership of the land litigated upon in those suits tied to a plan.

The High Court held that by virtue of the judgment in those suits the defendants were estopped from re-opening the issues of title that have been determined in those suits and struck out the paragraphs in the defendants’ pleadings relating to their title. As against the defendants’ counter-claim he held that the plea of res Judicata was rightly raised. The Court of Appeal upheld that decision.

On this appeal it seems to me to be common ground that the plaintiffs did obtain judgments in their favour in the Native Court suits. There is no challenge by the defendants to the finding that the parties, issues and subject-matter in the Native Court suits are the same as in the present suit, or that the judgments in those suits. being valid, final and subsisting, were capable of sustaining a plea of res Judicata. What the defendants, however, contend is that those decisions could not now be used as res judicata because of the decision in a latter suit, whereby the title of the plaintiffs were relitigated and pronounced upon.

The latter suit was No. DHC/14/78 which culminated in a judgment of this court (Exhibit D6) in appeal No. SC 151/1987.

P.2

In the latter suit the plaintiffs had claimed among other things a declaration that, “they as persons adjudged in 2 Oloibiri Native Court Suits Nos. 17/58 and 18/58 owners and/or owners in possession of the land known as ‘EDUMATA-EMENI’ alias ‘EDUMAYO’, are entitled to all monies due from and payable by 2nd defendants as compensation for 2nd defendants’ user, structures, loss of fishing rights and/or occupation of, and their operations on and/or in EDUMATA-EMENI land aforesaid …

The defendants’ case on this appeal is encapsulated in the two issues for determination formulated by the defendants as follows:

“(a) whether the concurrent finding of the lower court on the plea of res judicata is perverse (grounds 1 and 2)

(b) whether the concurrent finding of the lower court dismissing the counter-claim is perverse.”

It is manifest, having regard to the issues thus formulated, that the decisive question is whether the decision of this court (Exhibit D6) in Chief Uriah Akpana Adomba & Ors v. Benjamin Odiese & Ors. SC 151/1987 (reported in (1990) 1 NWLR (pt.125) 165 (“the compensation case”) raises an estoppel against the plaintiffs from re-litigating the issue of title to the land.

To put that question in proper perspective, it is convenient to distinguish between cause of action estoppel even though both are species of res judicata estoppel. For cause of action estoppel to arise the cause of action in the latter proceedings must be identical with the cause of action in the earlier proceedings. When a defence of cause of action estoppel is raised the defence connotes that the legal rights and obligations of the parties in respect of the subject-matter of the action are conclusively or deemed to have been conclusively determined by the earlier action. Cause of action estoppel requires identity not only of subject matter but also of parties and issues in the latter and earlier proceedings.

P.3

However, where a plea of cause of action estoppel cannot be raised because the causes of action in the two proceedings are not the same. a party can still plead that the other party is precluded from contending the contrary of any precise point; provided that the point in question

(i) has been distinctly put in issue and

(ii) has been necessarily determined directly and with certainty in the first action. The principle is stated thus in Volume 16 Halsbury’s Law of England (4th Edition) paragraph 977:
“A party is precluded from contending the contrary of any precise point which, having once been distinctly put in issue, has been solemnly and with certainty determined against him. Even if the objects of the first and second actions are different, the finding on a matter which came directly (not collaterally or incidentally) in issue in the first action, provided it is embodied in a judicial decision that is final, is conclusive between the same parties and their privies.”

Diplock. L.J. in Thoday v. Thoday (1964) 1 All ER 341 regarded “issue estoppel” as a “second species” of estoppel per rem judicatam. He described that second species thus at p. 352:
“There are many causes of action which can only be established by proving that two or more different conditions are fulfilled. Such causes of action involve as many separate issues between the parties as there are conditions to be fulfilled by the plaintiff in order to establish his cause of action; and there may be cases where the fulfillment of an identical condition is a requirement common to two or more different causes of action.

P.4

If in litigation on one such cause of action any of such separate issues whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either on evidence or on admission by a party to the litigation, neither party can, in subsequent litigation between them on any cause of action which depends on the fulfillment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not or deny that it was fulfilled if the court in the first litigation determined that it was.”

The doctrine of issue estoppel has been traced to the late eighteenth century in the Duchess of Kingston case(1775-1802) All ER Rep 623, but its formulation has not been fixed and static. Indeed it has been expanded in several cases to meet circumstances which call for application of the policy of law that underlies the doctrine of estoppel per rem judicata, namely that there must be an end of litigation.

Such extension of the doctrine are found in Fidelitas Shipping Co. Ltd. v. VI a Exportchleb (1965) 2 All ER 4, 10 where it was applied to issues determined at the interlocutory stage. That the doctrine has been received into our laws by a long line of authority is beyond doubt. It will be tedious and unnecessary to list out those decisions, particularly when they have not advanced the well established principles of the common law beyond what have been developed by English courts.

However, there is the case of Ladega & Ors v. Durosimi & Ors (1978) 3 SC 91, (1978) NSCC 175, 179 which would appear to be of some particular relevance. In that case Eso, JSC, stated the principle thus:

P.5

“A party is precluded from contesting the contrary of any precise point which has been distinctly put in issue and with certainty determined.”
In that case issues were joined before the court in regard to a larger area, whereas the claim for declaration of title was in regard to a smaller area. Those issues were determined by the court. It was held that the doctrine of issue estoppel would apply in such circumstances so as to make those issues to create an issue estoppel in a subsequent litigation between the same parties over a larger area.

In this case it cannot be said that the cause of action in the compensation suit is the same as in the present proceedings. The suit which gave rise to the appeal in which judgment was delivered by this court, as contained in Exhibit D6, was a claim of right to compensation. In the latter proceedings with which this appeal is directly concerned, the claims are mainly to a customary right of occupancy and to protect by perpetual injunction” the right of the plaintiffs to the scope and extent already recognised and adjudged in their favour” in the Native Court suits, suits 17/58 and 18/58.

The causes of action in the earlier and the earlier proceedings are manifestly distinct and separate. There can be no doubt that what is relevant to the circumstances of the present case is the second species of res judicata described as issue estoppel.
As can be gathered from the judgment of this court in the compensation suit, SC 151/1987 (Exhibit D6), the main plank of the plaintiffs’ case in those proceedings was that they have already been adjudged owners of the land in respect of which compensation was claimed and were by that reason entitled to the compensation they claimed. They also pleaded traditional history of the entire land verged green in the plan admitted in that case as Exhibit N.

P.6

The defendants on the other hand claimed to be the owners in possession of the land, then described as” the land in dispute.” The High Court on the basis of the judgments in the Native Court suits. Exhibits P3 and P4 in this case (then U & V) awarded to the plaintiffs the land in dispute. The Court of Appeal (Aseme, Aikawa, JJ.CA and Katsina-Alu, J.C.A., (as he then was) proceeding on the footing that title to the land in dispute was in issue in the compensation claim. reversed the judgment of the High Court on the ground, among others that the plaintiffs have failed to adduce evidence in proof of the issues joined on the pleadings and, apparently, that they have failed to relate the Native Court judgments to the land in dispute.

On the appeal to this court by the plaintiffs this court adopted the following issues for determination:

“(a) Was the Court of Appeal correct in dealing with the case on the footing that the title to the dispute land was in issue at the trial?

(b) If so, is the Court of Appeal also correct in holding that the onus of proof rested with the plaintiffs?

(c) And if so, did the plaintiffs adduce at the tiral, enough legal evidence (duly accepted) in proof of their case so as not to warrant interference by the appellate court with the primary function of the trial court in fact finding.?”

This court proceeded in that case on the footing that the plaintiffs had put title in issue in the compensation case. Part of the leading judgment of the court delivered by Nnaemeka-Agu, JSC (at page 179 of the Law Reports) read:
“They did not simply put forward Exhs U and V and decide to stand or fall by them. They pleaded other facts such as their tradition and numerous acts of possession and ownership even though their claim on the writ set out above was more narrowly formulated ….

P.7

As it is so, the learned Counsel for the appellants cannot be right when he submitted that title having been awarded to the appellants already, was no longer in issue. He put it in issue by his pleadings.”
In that case this court held that the plaintiffs having put their title to the land described as Edumata-Emeni in issue sought to prove that title first, by reliance on the judgments in the Native Court suits; and, in the alternative by proving their title afresh should they fail in the first option. Having failed to prove the identity of the land to which the Native Court suits related and their title by the evidence of tradition pleaded, they had failed to prove their title to the land.

In the concluding passage of the leading judgment, the learned Justice of the Supreme Court said (at P. 182):
“But in this case after disregarding such materials as Exhs. J1 to  J5 which the learned Judge treated as evidence establishing the truth of what were averred therein, which they could not be, and considering carefully other evidence and circumstances such as the failure of the appellants to establish a nexus between the land, the subject of this case, and those of Exhs U and V, the lack of established facts within living memory to make their evidence of tradition more probable: See Agedegudu v. Ajenifuja (1963) 1 SCNLR 205, (1963) 1All NLR 109 P. 111; Alade v.Awo (1975) 4 SC 215, P. 228, I have come to the conclusion that the Court of Appeal came to the correct decision when it decided that the appellants did not prove their case.”

P.8

Agbaje, JSC, who delivered the only other reasoned judgment in the appeal approached the matter, not on the footing that title was not in issue, but on the footing that although title was in issue, the plaintiffs had relied on the judgments in the native court suits as conclusively determining the issue of title in their favour so that by the operation of the doctrine of issue res judicata that Issue should be taken as established. He said at page 184:
“By the plaintiffs’ claim as framed and as pleaded in the statement of claim, there was a straight forward question of issue estoppel raised at the trial court as regards title to the land in respect of which compensation is payable by the second set of defendants.

The plaintiffs’ case is not for a declaration to title to the land but for a declaration that they are persons entitled to the compensation in respect of the land. To succeed all that claim they have to establish the grounds of their entitlement which are according to them that they are owners of the land.” (Emphasis mine)

Agbaje, JSC, drew and emphasised the distinction between cause of action estoppel and issue estoppel. That title was in issue in the compensation case was thus a unanimous opinion of the court.

In the present proceedings, the Court of Appeal accepted that the land in respect to which title has been put in issue in the compensation case was the same as that to which the present proceedings related. Rowland, JCA. who delivered the leading judgment of that court said at the outset of the judgment:
“In 1990 the present respondents (as plaintiffs) again commenced the instant proceedings over the same land (the subject matter in dispute in the aforementioned suit No. DHC/14178) claiming per their writ of summons inter alia a declaration that they are entitled to customary right of occupancy thereto….

P.9

(Emphasis Mine)
The learned Justice, mentioning a passage from the evidence of the 3rd defence witness, has said that piece of evidence introduced differences into the identity of the subject-matter. Had he, however, adverted to the evidence of the 1st plaintiffs’ witness that… in terms of the area of land shown in the two plans (i.e. exhibits D2 (N in the previous suit and P5) they are substantially the same, but details concerning features and boundaries were not shown in that Exhibit N”, he would not have found any material difference. At the end of the day he, nevertheless, was able to conclude later in his judgment that:
“There is no doubt from the evidence and the pleadings in the instant case that Exhibits P1-P4 are related to Exhibits P5 and D7.”

The plaintiffs’ case in the present proceedings is that the land adjudged to them in the Native Court suits (Exhs. P3 and P4) known to them and called “Edumata Emeni alias Edumayo” was shown and delineated in a survey plan No. BOE/R17/90-LD which was admitted as Exhibit P5 in the present proceedings. In the compensation case, as the leading judgment of the court of appeal, delivered by Aseme, JCA, showed, their case was put thus:
” … their land Edumata-Emeni alias Edumayo the subject-matter of Oloibiri Native Court Suits 17/1958 and 18/1958: the land in Port-Harcourt High Court Suit P/57/1958 which the defendants called ‘Ebelapiri’ are one and the same land and that the Nimbe ‘A’ location … are within the area of plaintiffs’ said land.”

The plaintiffs said in those proceedings that the land was depicted in the plan No. TJR 146 LD prepared by Theophilus John who visited the plaintiffs’ land” For their part, in the present proceedings, the defendants pleaded, in apparent agreement with the plaintiffs, that:
“The land verged ‘red’ in the said plaintiffs’ plan (i.e Exh. P5) … is the same or substantially the same as the land verged ‘pink’ or ‘green’ in the survey plan No. TJ R146 LD tendered as Exhibit N in the said protracted suit (i.e) the Native Court suits) pleaded in paragragphs 4 to 9 supra.”

P.10

It is manifest that the plaintiffs have put their title in issue in respect of one and the same land in the native court suits, in the compansation case and in the present case, In my judgment learned Counsel for the defendants summed up the positions properly when it was submitted in the appellants’ brief that, ‘It is common ground that the land in dispute in the previous suit No. DHC/14/78 as shown in the respective parties plan (sic: plans) tendered as evidence in the subsequent suit No. DHC/13/90″
When the question is whether the doctrine of issue estoppel is applicable to a case or not, the important question to ask, put tersely, are whether the parties are the same; whether the issues are the same; whether the issues are material to the cause of action in the previous and in the latter case; and, whether that issue has been resolved in the previous case. I venture to think that an issue may well be resolved by deciding that the party who put the point in issue has proved it as by deciding that he has failed to prove it.

Once again, I adopt the general observation of Diplock, L. J., on issue estoppel in Mills v. Cooper (1967) 2 All ER 100 at 104 as follows: 
“This doctrine. so far as it affects civil proceedings may be stated thus: a party to civil proceedings is not entitled to make as against the other party an assertion, whether of fact or of the legal consequences of facts, the correctness of which is an essential element in his cause of action or defence if the same assertion was an essential element in his previous cause of action or defence in previous civil proceedings between the same parties or their predecessors in title and was found by a court of competent jurisdiction in such previous proceedings to be incorrect…”

P.11

In the compensation case although the cause of action was entitlement to compensation, as has been seen, title was an essential element of that cause of action. In the proceedings which led to this appeal, title was also an essential element of the cause of action in the claim to customary right of occupancy to the same land that was claimed to be owned by the plaintiffs in the two proceedings. Having failed to prove their title in the compensation case, as decided by the Court of Appeal in Exhibit D5 and by this court in Exhibit D6, they have by the present proceedings attempted to prove their title once again, relying this time on the judgments in the Native Court suits alone. The trial Judge, Ndu, J, and the Court of Appeal, held that they could.
Ndu, J” reasoned that:
“What the plaintiffs lost was their suit wherein they claimed to be entitled to certain compensation money. In this present suit they are not claiming to be entitled to that certain compensation money”; and also, that, “in this present action … the plaintiffs are asking for declaration tied to the survey plan which now represents the land adjudged to them previously in Exhibit P3 and P4.”

The Court of Appeal, agreeing with Ndu, J., held that the radical claim in the compensation case” was purely for compensation and not for title etc. Therefore any findings of title is subsidiary to the main issue.” Rowland, JCA, in the leading judgment of that court said:
“It seems to me … that the findings in Exhibits D5 and D6 cannot be transferred into the present case. See Dike v. Nzeka. It seems to me therefore that the contentions of the appellants that the decision in Exhibits D5 and D6 are binding on Exhibits P1 and P4 is untenable and lacks legal basis.”

P.12

It is evident that the trial court and the Court of Appeal were in error when they proceeded on the footing that the question was one of cause of action estoppel, whereas what was in issue was issue estoppel. The distinction between cause of action estoppel and issue estoppel is not always material, but when it is, as in the present case, it is sufficient to lead to a conclusion that a decision which proceeded on the footing that the question raised in a case was one of cause of action estoppel when it was one of issue estoppel, is fundamentally flawed. Such conclusion must follow in this case.

The trial court and the Court of Appeal had been at great pains to show that the plaintiffs were entitled to seek a declaration of title more definitive than the declaration that they had obtained in the Native Court suit by having one tied to a plan. That that option was open to the plaintiffs was recognised by this court in the compensation case. Adomba v. Odiese (1990) 1 NWLR (Pt. 125) 165 at 178, where Nnaemeka-Agu, JSC , said that” a person who has had a judgment in his favour in a land case in a Native Court may in a present suit adopt one or the other of three courses of action, depending on the circumstances.”

One of those options, material to the present proceedings, he put thus:
“Secondly, he may recognise the potential weakness in his judgment in a land case conducted with a plan. He could in such a case go to, say, the High Court and file a fresh case, and file a plan reflecting the Native Court judgment. Even though the existing decision in the Native Court is no less binding than the High Court judgment, he is entitled to add something to it by getting the second declaration tied unto a plan. See Okoli Ojiaka (sic: Ojiako) & Ors v. Onwuma & Ogueze & Ors (1962) 1 SCNLR 112; (1962) All NLR 58 at P. 62.”

P.13

It was thus an option available to the plaintiffs to seek a declaration of title tied to a plan. However, it needs to be pointed out that there is no cause of action known as grafting a plan to a subsisting judgment. A party who seeks to have a declaration tied to a plan commences a fresh action and by so doing undertakes all over again to prove his entitlement to the declaration he claims. He seeks to prove his title by reliance on the previous judgment and uses that previous judgment as conclusive proof of ownership.

He may succeed in doing so, and would most probably do without much ado where there is no difficulty in convincing the court in which the fresh action is taken that the issue of title in respect of the same land has, as between the same parties or their predecessors in title, been conclusively determined by a court of competent jurisdiction. He may not succeed should he fail to prove any of these things or should the defendant be able to raise a successful defence of res judicata to the fresh action.

Although the defendant may not be able to deny the validity of the judgment relied on by the plaintiff or challenge its correctness in the latter proceedings, if an intervening action had ensued between the proceedings relied on by the plaintiff and the subsequent proceedings, a plaintiff who has failed in the intervening action may face the risk of being defeated by a plea of res judicata should all the ingredients of that defence be available to the defendant.

This is because the law is well settled in this jurisdiction that where there are two or more conflicting judgments, it is the latest in time that constitutes res judicata Seriki v. Solam (1965) 1 NMLR 1; Ikeakwu & Ors v. Nwamkpa (1967) NMLR 224.

P.14

In this case, intervening between the Native Court suits and the suit in which the plaintiffs claimed a fresh declaration, apparently in an effort to tie the judgment which they got earlier to a plan, was the compensation case. In that case they had, unsuccessfully, sought to establish their title to the land. There was thus a conflict between the judgments in the Native Court suits and the judgments of the Court of Appeal and this court in the compensation case in which it was held that the plaintiffs have not proved their title to the land. In these circumstances it was open to the defendants to rely on the latter of these two sets of judgment for their plea of estoppel.

To be considered even more damaging to the case of the plaintiffs are the findings of this court, and the reasons given by it for so finding, that the judgments obtained by the plaintiffs in the Native Court suits were of no avail to the plaintiffs. Nnaemeka-Agu, JSC, put it this way in Exhibit D6 (at p. 181 of the Law Reports):
“When in a subsequent suit in which the judgment should have been useful it turns out that a plan produced as a purported reflection of the judgment cannot be related to the features and the boundaries of the land, the subject of the previous suit, the previous judgment though valid, becomes unavailing. So it is in this case. The appellants’ plan, Exh. N, should have been a mirror of the distinctive features in Exhs U and V. But it is not.”

It is evident that the plaintiffs had in the compensation case put their title in issue without adequate preparation and on weak evidence. Having failed on the first occasion, can they now go back to the drawing board, fashion a new strategy and revamp their evidence to prove the same issue? I think not.

P.15

The doctrine of issue estoppel is founded on strong principles of justice and public policy. Were parties to be allowed to relitigate the same issue over and over again, litigation will be as endless as it takes the loosing party to revise his evidence and engage a more skillful lawyer to present his case. The process would go on endlessly until the party seeking to prove the point succeeds or wears his opponent down to submission. Litigation would then become a war of attrition which it is not supposed to be…It is evident from all that have been said that the reasons given by the court below for upholding the decision of the trial court are untenable.

Of these reasons the only one that has not been dealt with can be disposed of shortly. That Nigeria Agip Oil Company Ltd. which was a party to the compensation was not a party to the instant case is inconsequential as the issue of title was between the parties to the present case who were also parties to the compensation case. The principle that for a defence of issue estoppel to succeed there must be identity of parties does not mean that all the parties in the previous suit must be made parties in the latter suit. It is sufficient where there are several parties in the previous suit, that those of the parties who were necessary parties to the issue in the previous suit are the same as in the latter suit.

In regard to the defendants’ counter-claim, the trial Judge having held that the judgments in the Native Court suits (Exhibits P3 and P4) constituted res judicata struck out those averments in the defendants’ statement of defence and counter-claim, relating to the defendants’ claim of ownership of the land, Having done so, it was inevitable that the learned Judge would, as he did, dismiss the counter-claim.

P.16

The judgments in the compensation case being later in time to those in the Native Court suits, have superseded the latter, The decision in the compensation case was that the plaintiffs have failed to prove their title to the land and that the judgments in the Native Court cases could not avail them. That decision is not tantamount to a declaration of any right to the defendants. The defendants have been wrongly denied an opportunity of having their case determined on the evidence since the substance of their counter-claim has been struck out. The Court of Appeal erroneously was of the view that the trial court made “findings the effect that the appellants (defendants) failed to prove their counterclaim and it was therefore dismissed.”

The ground on which the counter-claim was dismissed is clearly erroneous. In the result, the counter-claim must be remitted to the High Court to be properly tried. At the retrial all paragraphs erroneously struck out as raising issues which have been previously determined in the Native Court suits must be restored.

For the reasons I have given, I allow this appeal. I set aside the judgments of the High Court and the Court of Appeal. In place therefore I enter judgment dismissing the plaintiffs’ case. I order that the defendants’ counter-claim be remitted to the High Court to be reheard by another Judge of that court and that at such rehearing those paragraphs of the statement of defence and counter-claim which were struck out by Ndu, J., be restored. The defendants are entitled to the costs of the trial in the High Court and costs of the appeals in the Court of Appeal and in this court which I assess, respectively, as =N=2,500, =N=5,000 and =N=10,000.

P.17