In The Supreme Court of Nigeria
the 26th day of
Before Their Lordships
Judgement of the Court
Salihu Modigbo Alfa Belgore. J.S.C.
This is an appeal by the plaintiffs against the judgment of the Court of Appeal, Enugu Division. That Court had allowed an appeal by the defendants against the judgment of Wai Ogosu, J., sitting in a Port Harcourt High Court.
The claim before the High Court was for the following reliefs:
(1) 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 "EDUMANYO", are entitled to
(a) 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 EDUMATO-EMENI land aforesaid;
(b) all monies and/or sums due from and payable by the 2nd defendants in respect of plaintiffs' communally owned economic tree growing on the said land which were destroyed by the 2nd defendants.
(2) An Order that the sum of N143,234.28 deposited by the 2nd defendants with the Accountant-General, Rivers State. or any sum or larger sum due from and payable by the 2nd defendants as claimed in (a) and (b) above be paid over to the plaintiffs.
(3) Perpetual Injunction against 2nd defendants, their servants and/or agents paying any monies as claimed by plaintiffs in 1 and 2 above to any person or persons other than the plaintiffs.
The main plank in the plaintiffs' case, as can be seen from their amended statement of claim dated the 28th day of August 1978 is that, they were already, as against the 1st set of defendants, adjudged owners in possession of the "Edumato-Emeni" alias "Edumanyo" land in dispute as shown in plan No. Exh. N (i.e. in Oloibiri Native Court suits Nos. 17/1958 (Exh. "U") and 18/1958 (Exh. "V") in which the 2nd set of defendantsí "Nimbe A Location" lies. So, they are entitled to the compensation of the sum of Nl43,234.28 due for the acquisition of the Location by the 2nd set of defendants. Furthermore they pleaded the traditional history of the entire land verged green in Exh. N which according to them was founded by their ancestor, Aghor who was after his death succeeded by his son Emeni, from whom the plaintiffs' family took its name. and then by the plaintiffs. They further allege that it was the same piece or parcel of land which the defendants had sued for in the High Court suit No.P/57/58 (Exhs. J, J1-J5) which action they did not prosecute and so it was struck out for want of prosecution. Also the plaintiffs pleaded other acts of possession and ownership which they exercised over the land in dispute. These included prosecuting certain trespassing members of the defendants' community in the Magistrate Court Case No. D/395C/1965 (Exh. C). They were all convicted: and the conviction was confirmed by the High Court. Some members of the plaintiffs' kith and kin also prosecuted actions against some members of the defendants' community in Oloibiri Native Court suits Nos. 162/57, 163/57, 199/ 57 and 201/57 over portions of the land in dispute.
In the 1st set of defendants' amended statement of defence dated the 1st day of August, 1979, they claimed to be the owners in possession of the land in dispute and joined issues with the plaintiffs on each of the above averments. In particular, they vigorously denied that suit Nos. 17/1958 and 18/1958 were fought over any part of the land in dispute. In any event, those judgments were obtained by the plaintiffs in default of the defendants' appearance and attempts by the defendants to appeal against them were forestaIled by the Registrar of the Native Court through the instrumentality of the plaintiffs. The plaintiffs, they averred, live several hundred kilometres away from he land in dispute. The defendants were in possession of the land in dispute and were so found by the 2nd set of defendants when they entered the "Nimbe A Location" (to be hereinafter referred to as the Location). As a result, the 2nd set of defendants made interim payments of compensation to them and agreed with them on the quantum of compensation for the Location - long before the plaintiffs came on the scene: hence the compensation was deposited with the Accountant General. They pleaded that the conviction of some of their people in D/395C/1965 was set aside by the Biafran Court of Appeal and both sides have since then respected the judgment. The land in dispute, called "Edem Ebela" or Ebila-Piri" as shown in defendants' plan, Exh. T, is the exclusive property of the defendants. They denied the other Native Court suits pleaded by the plaintiffs. They, too, pleaded that in Nembe Native Court suit No.355/5 of 1915 the 1st set of defendants had judgment against the plaintiffs. Also in suit No.273/28 in the same court, the defendants were found to be in possession of the land. They also pleaded other acts of long possession and ownership from time immemorial.
In his judgment, the learned trial Judge held that for the plaintiffs to succeed in the present suit it is their duty to prove that the lands involved in the Oloibiri. Native Court Suits, 17/1958 and 18/1958 (Exhs. U and V) are the same with the land in dispute in the Court Suit No. P/57/58. Relying almost exclusively on the plan and pleadings in the High Court suit, which had been tendered as Exhs. J3-J5, he found that the land in dispute in the instant case includes the areas litigated upon in Exhs. U and V. He regarded the Criminal proceedings, Exh.C as an act of possession. He also came to the conclusion that the defendants had set up conflicting defences on Exh. U and V in that with one breath they attacked them as invalid, but in another, they contended that they relate to other lands. He did not think much of those defences. On the whole he concluded that as the Native Court had in Exhs. V and U awarded to the plaintiffs the land in dispute, they were entitled to succeed in this suit.
On appeal to the Court of Appeal, that Court, coram Aseme, Aikawa and Katsina-Alu, JJ.C.A., allowed the appeal. Their Lordships held:
1. That in view of the decision in Kodilinye v. Mbanefo Odu (1935)2 WA. C.A. 136, p.337-8 the onus was on the plaintiffs in this case of declaration of title to adduce evidence in proof of the issues joined on the pleadings. But in the instant case, the plaintiffs have failed to discharge the onus.
2. That the learned trial Judge's judgment was an indistinguishable amalgamation of the pleadings and evidence in this suit and Exh. J, J1-J5 with the result that pleadings were treated as if they were evidence before the court.
3. That that amalgam also affected the learned Judge's treatment of the pleadings in Suit No. P/57/58, which, were tendered as Exhs. "J2" and "J3", as if they were evidence before him in this case and which established the truth of what were contained in them.
4. He also wrongly used the same erroneous approach to resolve the vital issue of the identity of the land in dispute in the Native Court Suit, Exhs. "U" and "V", vis-a-vis the land in dispute in this case.
Aggrieved by the judgment of the Court of Appeal, the plaintiff (hereinafter called the appellants) has appealed to this Court. The three issues for determination set out by learned counsel in his brief on behalf of the appellants were as follows:
(i) What is the nature of the Claim before the trial Court? Whether it is a claim for Declaration of Title and ownership to land, in the view of the Court of Appeal OR for a Declaration that P1aintiffs adjudged by the Oloibiri Native Court in two judgments (Exhibits U & V) to be the owners of the land in dispute are the persons entitled to receive the compensation paid by Agip Nigeria Ltd., in the view of the learned trial Judge. (Ground 2 of the Grounds of Appeal).
(ii) What is the burden of proof on the plaintiffs on their claim and if plaintiffs discharged such burden? Is the Court of Appeal right that the plaintiffs have an onus to discharge a burden of proof as if the claim is a fresh action for declaration of title to laud e.g. proof by acts of possession or ownership, by traditional history, proof of boundary to support a declaration to certain identity of land etc, if not, is the Court of Appeal justified in re-assessing and re-evaluating the evidence and concluding that plaintiffs did not discharge the burden of proof to support a declaration of title to land or concluding differently from the trial court's that acts of possession given by defendants are irrelevant to establish title against the true owner. (Ground 2, 5 & 6 of the Grounds of Appeal).
(iii) Whether the Native Court judgments (Exhibits U & V) estopped the defendants in relitigating the title of the plaintiffs by bringing the present suit; What is the principle to establish estoppel as to identity of the subject matter and is the Court of Appeal right that to establish estoppel the land in dispute in the Native Court case in plan Exhibit K (defendants plan in Suit P/57/58) must be shown to have same description and features to satisfy the "acid test" and to establish the identity of the land. (Ground 1,3 & 4 of the Grounds of Appeal).
The formulation of these issues is diffuse. The learned counsel for the defendants (hereinafter called the respondents) had a better formulation of the issues thus:
(a) Was the Court of Appeal correct in dealing with the case on the footing that title to the disputed 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 trial, enough legal evidence (duly accepted by the trial court) 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?
The learned counsel for the appellants, Mr. Peters, conceded it that no plans were used in the Native Court suits, Exh. U and V. But, he pointed out, that when the respondents failed to have the suits transferred to the High 3ourt, they took out a fresh action, suit No. P/57/58 (Exhs. J, J1 - J5), in the High Court. They filed a plan, Exh. O with their statement of claim Exh. J2. Appellants also filed a plan, Exh. K, with their statement of defence. Exh. J3. The respondents did not proceed with the case, which was struck out on 20/3/67. He pointed out that the appellants' plan, Exh. M in this suit, is only a reproduction of their plan, Exh. K in the 1958 suit, the only difference being that they have now shown the position of 2nd set of defendants "Nimbe A Location" as being inside the area covered by Exhs. K and N. Also respondents Exh. T in this suit is only a reproduction of Exh. O in the 1958 suit, with the position of the Location now shown.
From the above facts, learned counsel on behalf of the appellants submitted that the learned Justices of the Court of Appeal were wrong when they approached the appeal from the footing that the appellants were obliged to prove title. All that the Court of Appeal should have done, as the F trial Judge did, rightly in counsel's submission, was to have examined the proceedings in the Native Court suits, Exhs. U and V, and declare that the appellants had been adjudged owners of the land in dispute in which the Location lies. In his submission, the learned trial Judge was right when he held that the appellants' duty was to show that the Native Court Suits Exhs. U and V, relate to the same land as the High Court Suit, Exhs. J, J1 - J5. So, the Court of Appeal was in error as to the issue of onus of proof when it held that G the appellants had a duty to proof title again. He cited: DO. Idundun & Ors. V D. Okumagba & Ors. (1976)1 N.M.L.R. 200; also Sunday Piazo V Chief W. Tenalo & Ors. (1976)12 S.C. 31. The declaration by the Native Court in Exhs. U and V is binding on the parties in the instant suit, he submitted: Mobil Oil Nig. Ltdv 0. A. Coker(1975) 35.C. 175 atp. 178. The repondents are estopped from disputing that fact. They can, therefore, no
validly raise any acts of possession against the appellants, who are true owners: See Sanya v. Johnson (1974)11 S.C. 207, p.209; Shell BP. Dev. Co. of Nig. Lid. V. Abedi (1974)1 S.C. 26, 46.
In his reply, learned counsel for the respondents, Dr. Ibik, submitted that the material issues in a case, including the onus of proof, are determined not from the formulation of the claim but from the pleadings. He pointed out that the appellants pleadings raised such issues as that they were owners in possession of the land in dispute wherein the Location lies, that the land adjudged to be appellants' in Exhs. U and V are the same with that comprised in Exh. N, and that their pleaded traditional history and acts of possession support the inference that they were exclusive owners. As respondents joined issues on these, title was put in issue and the learned trial Judge, failing which the Court of Appeal, was obliged to go into the issues. Also, as the actual parcels of land, the subject of Exhs. Y and V, were not shown on any survey plan and the Location had not come into existence in 1958, it was necessary to call evidence also to establish a nexus between Exhs. U and V and the Location.
I shall begin my consideration of the issues in this appeal by stating that there can be no question as to the validity and binding effect, as between the parties, of the Native Court judgments, Exhs. U and V. Although the respondents have sought to attack it on a number of grounds, such as th~it some members of the trial bench were interested in the outcome of the litigation; that it was a default judgment obtained in the absence of the respondents, and that it was the registrar of the Native Court who forestalled the respondents' efforts to appeal against the judgment, I must advise myself that much as some of those grounds could be good grounds for appeal, the judgments are not null and void: they remain valid until they are set aside. And if the cause of action in the instant suit had been determined in a previous suit, it has merged in the judgment: transit in rem judicatam. It is an application of the rule of public policy that as against the same parties no man 'hall be vexed twice for one and the same cause on the same issues (nemo debet bis vexari pro una et eadem causa).
But having said so, I must advert to the fact that, as a matter of practice, 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.
In view of the far-reaching issues of fact, which the appellants raised in their statement of claim in this case, and which the respondents denied or traversed, the absence of a plan or any clear description of the lands in Exhs. U and V, it appears to me that they opted for the second alternative. 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. It is now settled that a statement of claim supercedes the writ, provided that the party does not in the statement of claim set up a case totally different from the writ: See Cave v. Crew (1893)62 L.J. Ch. 530; Ekpan v. Uyo (1986)3 N.W.L.R. (Pt.26) 63. 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. Indeed, as issues had arisen on the above questions of facts at tile close of pleadings, the learned trial Judge had a duty to resolve them at the trial. See on this -
Dipcharima v. Ali (1974)1 All N.L.R. (Pt. 2) 420.
Metal Construction (W.A.) Ltd. & Ors. v. Milgore (1975) 6-9 S.C. 163.
His failure to resolve them was a clear ground of appeal which entitled the Court of Appeal to intervene.
I must pause here to observe that learned counsel for the appellants, in his submission, appears to be perpetuating a fundamental error in the approach of the learned trial Judge. He addressed us - as indeed the learned trial Judge so put the case for the appellants in the High Court - as though the duty of the appellants was to establish a nexus between the present suit and the suit No. P/57/58 (Exhs. J, J1 - J5) which has not been tried at all. This is in error. For going by the claim and pleadings of the appellants they sought to found their case on the previous Native Court suits, Exhs. U and V. Their duty was rather to establish a nexus between the land in litigation in this suit and lands awarded to the appellants in Exhs. U and V. In my view, it would not avail them to simply compare the land at present in dispute, as the same with that in suit No. P/57/58 which was simply struck out. As for the correct value that could be put on the pleadings and plan filed in that previous suit, I think they were admissible in the instant suit to prove their own existence, the fact of institution of the suit and to show the facts in issue between the parties and no more. For, to all intents and purposes they were merely suggestions of counsel, not declarations of the parties, and so are not receivable to prove the truth of the averments therein contained, even as admissions, unless they are verified on oath, or signed or otherwise adopted by the party against whom it is to be used. See on this: Phipson: On Evidence (12th Edn.) para. 1432; Aihaji Adisa & Ors. v. Sabalemotu Saibu & Ors. (1977) 2 S.C. 89, at p.115; also British Thomson Houston Company, Ltd. v. British insulated and Helsby Cable Ltd. (1924)1 Ch. 203, at p.210. The learned Justices of the Court of Appeal were therefore right in holding that the learned trial Judge in that respect violated rules of law, the law of evidence and procedure when he treated them as proof of the truth of what they contained.
The learned counsel for the appellants also made heavy weather out of the name of the land in dispute. He submitted that because the land litigated upon in both Exhs. U and V was called "Edumato-Emeni" alias "Edumanyo", just as in the present suit, then it follows that the lands litigated upon in Exhs. U and V are the same with the land now under litigation. With respect, this is a preposterous submission. I do not think that it assists the appellants any bit to show that the names of the lands in dispute in the previous as well as the instant cases are the same. This is because, as rightly pointed out by Dr. Ibik, the name given to any particular piece of land is of little, if any, assistance or value in ascertaining the precise boundaries or features of the land. What is required of a plaintiff in order to discharge the onus incumbent on him with respect to the quantum and identity of the land is to prove the boundaries with certainty, unless it is well known to the parties. And what is necessary in such a case is the establishment of such features and boundaries which a surveyor can pick-up on the ground and produce a plan thereon: See on this -
Chief Nyong Etim & Ors. v. Chief Ben Oyo & Ors. (1978) 6 & 7 S.C. 91, p.97;
Udoila v. Afia 6 W.A.C.A. 216.
Amata v. Modekwe 14 W.A.C.A. 580 See also S.C. 123/1988:
Raphael Udeze & Ors. v. Paul Chidebe & Ors. (1990) 1 N.W.L.R. (Pt.125) 141.
I am satisfied that mere name of the lands in dispute in the previous and the instant suits can serve no useful purpose in the important task of establishing -the precise boundaries, identity and features of the lands.
Then I shall deal with the final question as to whether the Native Court suits, Exhs. U and V, estopped the respondents from disputing the title of the appellants in the instant suit. I shall approach it by directing my inquiry to ascertaining whether, the erroneous use of the pleadings and plan in Exhs. J, J1-J5 apart, the evidence called at the trial established that the land in litigation in this case is the same with those over which title was decided in favour of the appellants in Exhs. U and V. The evidence of Mr. Theophilus John, (P.W.2) who was a common surveyor to both parties, under cross-examination, is to the effect that whereas the respondent village Akipelai (Akipeleyia) is near the land in dispute, the appellants' village, Opomatobo, is far from it; that in fact, going from the land in dispute to the appellants village, by the nearest route, one has first to traverse the village of Amakalakala. These facts are borne out by the appellants' plan, Exh. N. So, the appellants cannot rely on contiguity of the land in dispute to their own land to urge on us an inference that the land in dispute is their own. But the most devastating piece of evidence in this regard came from P.W. 1, their key witness who comes from the appellants' village. In answer to questions designed to show that there is no nexus between the features mentioned in Exhs. U and V on one hand and those in the appellants' plan, Exh N in this suit, he testified as follows:
It is true that in Exh. N there is no Akangara Creek. There is no Oginaligogo Creek in Exh. N.J know some of these creeks personally.
The full effect of this piece of evidence will be appreciated when it is noted that in Exh. U, the claim was for:
Declaration of tide of ownership over the piece of land known as Edumata Enani alias Edumanyo valued £5 bounded on the down-stream by Akangara Creek in the inland with Amakalakala by Oginaligogo and the upstream by Ijiekina with Imemiagha. (italics mine)
Thus by the above piece of evidence the appellants' key witness admitted that the necessary nexus between the previous suit, Exh. U, and the plan made in this Suit was lacking. Similarly, it is impossible to relate any of the features mentioned in Exh. V, namely: Obhia Emeni, Atotobh Creek, Sabatoru, Aku tree, etc. to the features shown on Exh. N. I would like to seize this opportunity to point out that, although, in theory, a judgment of a Native Court is as valid as that of any other court, yet, as a weapon of offence or defence in a practical forensic contest in court, the successful party may sometimes discover, to his chagrin, that that weapon in his armoury has a potential weakness. It may, as in this case, turn out that he needs a good deal more to identify the precise boundaries and features of the land to which the judgment relates. 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. So, the necessary nexus between those previous judgments and the instant are just not there. It is not true, as learned counsel for the appellants submitted in argument that the respondents' star witness, D.W.5 admitted such a link. As Dr. Ibik pointed out, what learned counsel for the appellants referred to as admissions relate to Exhibits M, Ml and S, i.e. suit Nos. 201/ 57, PHC/201/57 and PHCI14/78. I do not see how these can assist the appellants in the inquiry as to whether there was a link between Exhs. U and V, on the one hand, and the land delineated in Exh. N, on the other.
For the above reasons, I have come to the conclusion that the learned Justices of the Court of Appeal had very good reasons for reversing the learned trial Judge on the facts. For, true it is now perfectly settled that findings on primary facts are matters essentially within the province of the court of trial, and that there is a rebuttable presumption that a Judge's conclusions on the facts are correct. See on this:
Akesse v. Ababjo (1935) 2 W.A.C.A. 264;
Bakare Folorunso v. I. A. Adeyemi (1975) 1 N.M.L.R. 128.
For this reason, an appellate court must always tread warily when called upon to reverse a court of trial on the facts, and may well take the view that, unless an obvious error has been shown on the record, it is not open to it to substitute its own views for those of the court of trial which heard and saw the witnesses testify: Balogun & Ors. v. Agboola (1974)1 Ml N.L.R. (Pt. 2) 179. Yet, I must bear in mind the fact that the duty of the Court of Appeal was to rehear the case and, to that intent, reconsider the materials before the learned trial Judge. Then, as it was not a matter, which depended on credibility of witnesses, it could reach its different judgment. 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, B 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 All N.L.R. 109, p.111; Alade v. Awo (1975)4 S.C. 215, p.228,1 have come to the conclusion that the Court of Appeal came to the correct decision when it decided that the appellant did not prove their case. I am satisfied that the Court of Appeal was entitled and right to have allowed the appeal and dismissed the appellants' claim
Judgement delivered by
read by my
Judgement delivered by
Judgement delivered by
I have had the benefit of reading in draft the lead judgment of my learned brother Nnaemeka-Agu, J.S.C. I agree entirely with him that this appeal lacks merit and must be dismissed. It is only to emphasise the latter that I am making the following contribution to the lead judgment.
The learned trial Judge Wai-Ogosu, J., in the following passages from his judgment has correctly identified the bases of the plaintiffs' claim before him:-
The following passages from the judgment of learned trial Judge Wai-Ogosu, J., show too that he was quite cognisant of the defence of the defendants to the plaintiffs' claim against them:
They (the defendants) contend that the plaintiffs are not the owners in possession of the land in dispute; even if the plaintiffs became owners of the land by virtue of the Oloibiri Native Court Civil Suits Nos. 17158 and 18/58 (tendered by the same 1st set of defendants here as Exhibit U and Exhibit V respectively) the "NIMBE 'A' LOCATION" is several hundred kilometers away from the said EDUMATO EMENI, and not part of it. What is more, the 1st set of defendants say, the judgments in those two Oloibiri Native Court Suits were obtained in default of the appearance of the defendants, whose attempts to appeal against the judgments were blocked by the Registrar of the said Native Court, actively aided by the plaintiffs.
The learned trial Judge recognised it also that the defendants set up a plea of long possession of the land in dispute. It is also abundantly clear from the judgment of the learned trial Judge that he did not base his decision on the case before him on the acts of possession and ownership pleaded by the plaintiffs or on the long possession relied upon by the defendants but in the words of the learned trial Judge:-
From the points I have made above the plaintiffs have proved their case, which, I hereby declare, succeeds as per their writ. Thus as persons adjudged as owners of the land in dispute by the two Oloibiri Native Court Suits Nos. 17/58 and 18/58 the plaintiffs are entitled to (1) all moneys payable as compensation by the 2nd set of defendants for the land in dispute, the plaintiffs' communally owned economic trees, fishing rights on the land and creeks etc. (2) the sum of N143,234.28 deposited by the 2nd set of defendants with the Accountant-General of the Rivers State A for the benefit of the winner in this case. I order accordingly as above.
(3)1 hereby also order perpetual injunction against the 2nd set of defendants, their servants and/or agents restraining them from paying any monies as claimed by the plaintiffs in their writ to any person or persons other than the plaintiffs.
The above decision was the bone of contention in the lower court, and indeed in this court. By the plaintiffs claims as framed on the writ of summons 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 2nd set of defendants. The plaintiffs' claim is not for a declaration of title to the land but for a declaration that they are the persons entitled to the compensation in respect of the land. To succeed on that claim they have to establish the grounds of their entitlement, which are, according to them, that they are the owners of the land. They do not stop at that. They go on to allege that as a matter of fact that issue had been settled in their favour by virtue of the decisions in the Oloibiri Native Civil suits No.17/58 and No.18/58 between their ancestors and those of the 1st set of defendants.
So the question is whether the decisions in question can operate as estoppel per rem judicatam on the issue of title to the land to which the plaintiffs' claim for compensation money relates as between the plaintiffs and the 1st set of defendants. For that to happen, as was said in Alashe v.Ilu (1964) 1 All N.L.R. 390 at 394.
It is not in doubt that before the doctrine of estoppel per rem judicatam can operate it must be shown that the parties, issues, and subject matter were the same in the previous action as those in the action in which the pleas is raised.
It is not contested here that the parties and the issues in the previous Native Court cases and those in the action now on appeal before us where the plea of estoppel per rem judicatam arose for determination are the same. What the plaintiffs asserted and the defendants disputed is that the subject matter in the previous actions and that in the present case are not the same. It cannot be gainsaid that the onus is on the plaintiffs who are relying on this plea for the success of their claims to establish this point. See Section 134(1) Evidence Act. It is also the law that regard must be had to the record of proceedings in the cases in question in order to determine whether the plea of estoppel per rem judicatam has been estabbshed. See Larbi v. Kwaberia 14 W.A.C.A. 299.
No plan was prepared or used in the native court cases. The land in dispute there was called EDUMATO-EMINI alias EDUMANYO bounded on the down-stream by Akangara Creek in the inland with Amakalakala by Oginaligogo and the upstream by Ijiekina with Imemiagha. It is clear that on the face of the records of proceedings in the native court cases and in the present case one cannot justifiably arrive at the conclusion that the identity of the land in dispute in the previous actions and that in the present case are the same. In fact the learned trial Judge himself did not hold otherwise. This ordinarily should have been the end of the plea of estoppel per rem judicatam Upon which the plaintiffs relied. But the learned trial Judge thought other-wise for he held as follows:
It is true that no plans were made and filed in the Oloibiri Native Court Suits to show the identity of the land involved; but when the circumstances are considered in which the Port Harcourt High Court Suit P/57/58 was instituted by the defendants against the plaintiffs when the defendants had failed in their attempt to appeal against those judgments it is very clear to me that NIMBE 'A' LOCATION is within EDUMATO) EMENI of the plaintiffs or EBELA PIRI of the defendants.
The pleadings in Suit P157159 are admitted in the present suit as Exhibits J, Ji to J5; and the plans of the defendants and the plaintiffs in that Port Harcourt High Court suit are admitted here as Exhibit K and Exhibit C respectively. When these are compared with the pleadings in the case now before the court, - as for example in paragraph 9 of the Statement of Claim, which avers that plaintiffs are owners of the land by virtue of Exhibits U & V, and that NIMBE 'A' LOCATION is within the land comprised in Exhibits U & V, and in paragraphs 7 & 8 of the Statement of Defence, which ever that plaintiffs are not owners of the land and that NIMBE 'A' LOCATION is not within this land, and that Exhibits U & V were judgments obtained in default of the appearance of the defendants, - it is evident that the lands involved in the Oloibiri Native Court Suits are identified as the same as that involved in P/57/58 and that the one now in dispute is within that land. This is even supported in the evidence before this court.
Thus D.W.5, Chief Uriah Opuene by far the most important witness for the defendants, admitted under cross examination that EBELA PIRI is the same as EDUMANYO alias EDUMATO-EMENI, that Exhibits O and T cover the same land, and that the canal, i.e. NIMBE 'A' LOCATION, is in the land covered by Exhibit O. The same D.W.5 accepted that when the native Court Suits Nos. 17/58 and 18/58 were going on they wanted them transferred to Port Harcourt, and it was then that they had to take out the Suit P157158 at the Port Harcourt High Court against the plaintiffs.
There is nothing in the passages from the evidence of D.W.5 referred to by the learned trial Judge above indicating that the land in dispute in the present case is within the land in dispute in the native court cases. If there was, I would have been inclined to the view that the trial Judge was right in his decision on the point based at it would have been on the admission of a defendant. However the following passages from the evidence of the witness, show that he was asserting the contrary:-
Suits P/57/58 in a Port Harcourt High Court was not prosecuted to finality. It was withdrawn and then struck out. For a plea of estoppel per rem judicatam to operate the proceedings relied upon for the plea must result in a judgment or decree.
The withdrawal of summons not leading to an adjudication does not operate as an estoppel per rem judicatam. See LAND v. LAND (1949) P.405 D.C. (1949) 2 All E.R. 219. Seen in this light what happened in suit P157158 cannot be of assistance in the decision on the estoppel in question in this case.
Alade v. Aboirshade (1960)5 F.S.C. 167 at 173  SCNLR 398 is authority for the proposition that evidence given in a previous case can never be accepted as evidence by the court trying a later case except where section 34(1) of the Evidence Act applies. A priori pleadings filed in an earlier case will ordinarily not be accepted as evidence by the court trying a later case except where a plea of estoppel per res judicatam is based on the decision in the earlier case. On the latter point I refer to Halsbury's Laws of England, third Edition Volume 15, page 207 article 388:-
Evidence admissible to show matter in issue. In order to ascertain what was in issue between the parties in the earlier proceedings, the judgment itself must of course be looked at and the verdict, if any, on which it is founded and where there have been pleadings, these should also be examined, being in fact part of the record. The same principle applies where an issue has been directed by the court. In short, whatever goes to make up the record must be looked at; and no evidence is in that case admissible to contradict the record, or to show that more was in issue than appears upon it. Where, after trial in a court where there are no pleadings, the record of that court is relied upon, oral evidence is, however, admissible to show what facts were in issue and determined as the basis of the judgment, and such a determination is conclusive between the same parties.
I have shown above that a plea of res judicata cannot be based on the proceedings in the Port Harcourt High Court case suit No. P157158. And on the authority of this court in the case of Adira v. Saibu & others (1977)2 S.C. at 115 pleadings in previous cases by a party in a later case cannot be admissions against him in the later case.
I am therefore satisfied that Aseme, J.C.A. was right in his lead judgment in this case in the lower court, in which Aikawa and Katsina Alu, JJ.C.A. concurred, when he held as follows:-
What the learned Judge did in the instant cases was a serious violation of law and procedure which had the result to prove, albeit erroneously the essential evidence that was lacking in the native court judgments themselves. Since the learned trial Judge applied wrong principles of law in coming to his decision as to the identity of the land involved in the native court suits. Exhibits U & V, it is the duty and function of this court to set aside this decision of the court below.
In the result I too dismiss the appellant's appeal with costs as assessed in the lead judgment.
Judgement delivered by
I have had the advantage of reading in advance the lead Judgment of my learned brother, Nnaemeka-Agu, J.S.C. I agree with him.
set out I
and it is