BEN IKPANG & Others v CHIEF SAM EDOHO & Another (SC.239/76) [1978] NGSC 21 (7 July 1978)



On Friday, the 7th day of July 1978



BEN IKPANG & ORS ................................. APPELLANTS


CHIEF SAM EDOHO & ANOR ............................... RESPONDENTS


The respondents sued in 1972 in a representative capacity claiming against the appellants, who were in the course of the proceedings authorised to defend in a representative capacity, damages for trespass to a piece of land "Ndon Ekpe Etok" allegedly committed between 1967 and 1970 and an order for injunction restraining the appellants from further trespass. The respondents based their claim of ownership on traditional history, acts of possession and res judicata based on an earlier 1942 Native Court judgment. The appellants while denying the respondents citation of traditional history and acts of possession and relying upon their own version and acts contended on the matter of res judicata, that although the issue and the subject matter of the 1942 Native Court case were the same as in the present case, the parties were not the same as in the present case, the earlier 1942 case being a personal action between the appellant and respondent in which their respective families were not involved. They contented that the claims of the respondents were inappropriate by reason of the fact that before they issued their writ the government had under the Public lands Acquition Law, cap 105 laws of Eastern Nigeria 1963, compulsorily acquired the land in dispute or part thereof, and that the respondents claim could not lie on a declaration of title since the government now had the title to the land.

The trial Judge found for the respondents holding that the appellants' citation of traditional history was untrue and that they were estopped per ren judication from re-opening the issue earlier decided by the 1942 Native court judgment. On appeal to the Supreme Court.




(1)     The respondents were not precluded by the acquisition by the government in September 1972 of the land in dispute from suing in November 1972 for trespass committed by the appellants between 1967 and 1970 to the land in dispute of which they were then in possession, the action not having been barred by limitation of time and not otherwise rendered unactionable.


(2)     It is fundamental that to sustain a plea of res judicata the party raising the plea must show that the parties, the issues and subject matter of the current case are the same as in the previous case adjudicated upon by the court of competent jurisdiction before which the proceedings terminated to finality. This is a principle founded on a Public Policy which requires that interest reipublicae ut sit finis litium.


(3)     In ascertaining whether the judgment of a Native Court (where lawyers trained in the art of drafting claims and setting pleadings with precision do not normally appear) operates as res judicata, the substance and not the form of the entire proceedings is to be examined as a writ could be framed Mr A and Mr B while the evidence may show clearly that the fight was between family A and family B.


(4)     The perusal of the proceedings in the Native Court case pleaded here as estoppell per rem judicatan clearly shows that the parties there to were suing on behalf of their families.


Appeal dismissed.


Chief R. O. A. Akinjide, (SAN) (with Mr A. Emiola) for Appellants


Mr K. Sofola, (SAN) (with M. U. Bazuna) for Respondents


Cases referred to:-


Adenle v Oyegbade (1967) N.M.L.R 130


Adeshoye v Oshiwonimu (1952) 14 W.A.C.A. 86


Adayi v Aina 16 N.L.R. 67


Alashe v Sanya Olori Llu & Ors (1965) N.M.L.R 66


Boadu v Fuso 8 W.A.C.A 187


Dinsey v Ossei & Anor (1939) 5 W.A.C.A


Kojo II v Bonsie & Ors (1957) 1 W.L.R 1223


Kunstler v Kunstler (1969) 3 All E.R 673


Mills v Copper (1967) 2 E.R 100


Nana Ofori Atta 11 v Nana Abu Bansra 11 (1958) A.C 95


Oluma v Tsutsu 10 W.A.C.A. 89


Powell & Wife v Streatham Manor Nursing Home (1935) A.C 243


Wytcherley v Andrews (1871) L.R. 2 P&M. 327


Aniagolu, J.S.C.-The appeal in this case is brought against the judgment of Kooffrey, J. (as he then was) in a writ filed in November 1972 by the plaintiffs as representing the family of Edoho in Afaha Eket against the defendants who were, in the course of the proceedings, authorised to represent the family of Idiong Ikpang in Ekpene Ukpa, Eket, all of the Calabar Judicial Division in which the plaintiffs claimed against the defendants, jointly and severally:


"(a) £500 damages for trespass on a piece of parcel of land known as and called "NDON EKPE ETOK" situate at Afaha Eket, Eket Division.


(b)     Injunction to restrain the defendants, their servants and/or agents from further interfering with the plaintiffs' rights and possession of the said land."


Pleadings were filed eash side staking a claim to the ownership of the land through inheritance based on traditional history and upon positive and numerous acts of ownership allegedly exercised by each side over the land for some considerable length of time. In addition the plaintiffs had pleaded res judicata based upon proceedings tendered in evidence as Exhibit 2 which originated in the Eket Clan Court in 1942, being a suit in which "Chief Ndohose Edoho of Afaha Eket" sued "Ben Ikpang of Ekpene Ukpa" claiming as follows:


"Defendants to root out his crops from the plaintiff's land Ndun Ekpe Etok planted 1 month ago."


The defendant denied the plaintiff's traditional history and claim to long possession; maintained that the land had been in their possession from immemorial times and that they were living on the land; and averred that the land in dispute in 1942 upon which the plaintiffs relied for their plea of res judicata was an entirely different piece of land which


"had no relation whatever to the land now in dispute."


They further pleaded and maintained in evidence that the land having been compulsorily acquired by Government of South-Eastern State before the plaintiffs issued their suit, the plaintiffs' claim was therefore grossly misconceived since their interest after the compulsory acquisition could only lie in a claim to the compensation to be paid by Government and to the quantum of compensation payable.


The learned trial Judge heard the evidence of the parties and a considerable number of their witnesses which included, in the case of the defendants, a preacher (D.W. 5), a Native Doctor (D.W. 6) a Permanent Secretary (D.W. 7), and a Nightwatchman (D.W. 8). The trail Judge found against the defendants both as to traditional history and the issue of res judicata and also as to long possession. On traditional history the trial Judge held:


"I find therefore the traditional evidence of the defendants most inconclusive and unreliable. It seems to me that this land remained in the midst of Ekpene Ukpa with the distinctive name of Ndon Ekpe Etok and they have to weave history to lay claim to it on account of proximity. On the other hand I accept the evidence of traditional history of the plaintiff and hold that Ekpe Etok had no issues and was by the custome of Eket people succeeded by his half brother Akanimo who buried him. This explains how the plaintiff have held on to this land for such a long time even after the Eket-Oron road seems to have severed it from Afaha Eket. The presence of Afaha Eket villages or lands on the same side of the Eket/Oron according to the evidence of some of the defendants' witnesses shows that before that road, Ekpene Ukpa (defendants) had boundary with the land of the plaintiffs. It is true that the defendants have given a long list of name of successors to that land in dispute. I am not impressed. They appear to be mere names to create an impression and tilt to scale in their favour."


On res judicata the trial Judge held that the earlier judgment in Exhibit 2 was in favour of the plaintiffs for a declaration of title of ownership and that the parties, the subject-matter and the cause of action were the same in the present suit as in that earlier suit which terminated in a final judgment. He therefore ruled that the defendants were estopped per rem judicatam from reopening the matter.


On the issue of acts of possession the trial Judge found that the defendants for the first time entered the land in dispute in 1942 and this gave rise to the 1942 suit, Exhibit 2. In the course of the judgment the trial Judge found as follows:


"Even though the defendants have shown that they own the surrounding lands, they cannot explain why they waited till 1942 before they entered the land.

This fact of compensation does not weigh much if the defendants as stated in 1942 case, Exhibit 2 got permission from their Chief to invade the land in dispute. What could have stopped them from establishing themselves on the land more effectively before judgment? After all 1942 was 32 years ago or 30 years when the writ in this action was filed. The plaintiffs have said that the defendants rushed into their land and put up buildings immediately and when they could not stop them they had to come to Court. I accept this as true"


Concluding the judgment the trial Judge held:


"From the evidence before me and the law involved, I have no hesitation in coming to the conclusion that the plaintiffs were made the owners of the land by the judgments in Exhibit 2. They were therefore in possession or had a right to that possession at the time the defendants entered the land."


He awarded N2000.00 damages for trespass against the defendants with costs. He did not consider that the circumstances necessitated the making of an order for injunction.


The appellants filed two original grounds of appeal. These were later abandoned by their Counsel, Mr Emiola, who appeared for the appellants on the first day of hearing, having obtained leave of court to argue nine additional grounds which adequately covered those original grounds of appeal. The nine additional grounds of appeal read as follows:


"1.     The learned trial Judge erred in law and misapplied the doctrine of res judicata in holding that Exhibit 2 operates as an estoppel between the Plaintiffs and the Defendants in the present case when the parties, issues, and the subject-matter in the present case are not the same as in Exhibit 2.


2.      The learned trial Judge erred in law in accepting evidence of traditional history as given by the plaintiffs in support of their case when the plaintiffs pleaded neither their root of title nor the names of histories of their ancestors from whom their right of possession descended.


3.      The learned trial Judge erred in law and misdirected himself on the facts in holding that the Defendants based their case on "long continuous stay on the land" and on "succession to Ekpe Etok Ikpong" (p.78) and thereby failed to consider the case of original settlement put up by the Defendants in the pleadings and in evidence.


4.      The learned trial Judge erred in law in finding for the Plaintiffs when they failed to prove their possession of all or of any specific part of the land in dispute, and when there was an abundant evidence of continuous possession on the part of the Defendants for generations on the land in dispute.


"5.     The learned trial Judge erred in law in not resolving the conflicts in the claims of the Plaintiffs and Defendants as to:-


(a)     whether Ekpe Etok belonged to the Plaintiffs' family or to the Defendants' family, when there is evidence that the two families are not the same or related by blood;

(b)     whether the said Ekpe Etok had any children or not; and

(c)     whether the land in dispute is in fact in Afaha Eket or in Ekpene Ukap as claimed respectively by Plaintiffs and Defendants, when this was one of the central issues relevant to the just determination of the case.


6.      The learned trial Judge erred in law in shifting the onus of proving that the land in dispute was part of the Ekpene Ukpa land when the onus lies on the Plaintiffs to prove not only that the land in dispute is their own but also to rebut the presumption raised by section 45 of the Evidence Act.


7.      The learned trial Judge erred in law in not shifting the onus of proof on the Respondent since the appellant was in possession having regard to S.145 of the Evidence Law.


8.      The learned trial Judge erred in law in not dismissing the Respondents case when the land had been compulsorily acquired by government at the time of the action


"and the only issue outstanding was that of compensation, if any.


9.      The judgment of the trial is against the weight of evidence."


On resumption of hearing Chief R.O.A. Akinjide, S.A.N., appeared with Mr Emiola for the appellants. He argued grounds 8 and 1 in that order, after which he stated he would offer no argument in respect of the remaining seven grounds of appeal. These two grounds dealt, in Ground 8, with the legal effect of the compulsory acquisition by the Government of South-Eastern State of the land in dispute, on the competing claims by both parties for the ownership of the said land in dispute, and, in Ground 1, with the issue of res judicata.


Arguing Ground 8, Chief Akinjide referred to the acquisition notice contained in Gazette No. 6 Volume 6 dated 8th February 1973 which was tendered in evidence on Exhibit 4 and argued that the acquisition notice having been issued by Government before the filing of the writ in this case, the plaintiffs' claim for trespass and injunction in respect of the same land was inappropriate. Chief Akinjide sought and obtained leave of court, Mr Sofola, S.A.N., for the Respondents eventually withdrawing his objection, to amend his Ground 8 to read that the acquisition by Government was in respect of "part of" the land in dispute and argued that even assuming that only part of the land in dispute was acquired, a claim for trespass and injunction was still inappropriate.


The Plaintiffs' writ was apparently issued on 13th November 1972 almost about three months after the South-Eastern State Gazette Notice (Exhibit 3) No. 36 Volume 5 dated 24th August 1972 giving notice that the Government of South-Eastern State of Nigeria would acquire the land for public purposes, "from the day following the expiration of Six Weeks from the date of this Notice." The date of the Notice was 17th August, 1972. Therefore the Government was to enter into possession six weeks from 18th August, 1972. The purpose clause of the acquisition notice as stated as hereunder:


"NOTICE is hereby given that all that piece or parcel of land at Ekpene Ukpa, Eket, in the Eket Division of the South-Eastern State containing areas approximately 8.691 acres, 2,250 acres, and 9.866 acres respectively the boundaries of which are herein described are required by the Government of South-Eastern State of Nigeria for public purposes absolutely and in particular for establishment of Divisional Secretariat."


The Gazette then proceeded to describe the three sites 1, 2 and 3 where the Secretariat buildings were to be erected, "at Ekpene Ukpa, Eket Town, in Eket Division of the South-Eastern State of Nigeria" indicating concrete pillar boundaries in the original Eket Cadastral Surveys. Site 1 measured 8.691 acres, Site 2 2.250 acrea and Site 3 9.866 acres. The boundary description of Site 3 was, in a later Gazette No. 6 Volume 6 dated 8th February, 1973 Exhibit 4, later amended but the extent of the land acquired at that site remained the same as 9.866 acres.


The area of the land acquired by Government, (hereinafter called "the acquired land") is shown in the plaintiffs' plan, Exhibit 1, and is there-in verged yellow. The entirety of the land claimed by the plaintiffs and said to be the land in dispute is verged ping (or as stated in their plan "red"). The acquired land lies to the East of the said land separated from the rest of the said plaintiffs' land by a road marked in the plan as "Road under Construction." In the defendants' plan, the land they claim as theirs is verged Green and is a much larger piece of land than that claimed by the plaintiffs. The defendants have superimposed the plaintiffs' plan on theirs and have shown that the area claimed by the plaintiffs, including portion of the acquired land falls completely within the green verged area claimed by the defendants, with a portion of the land acquired by Government falling outside the area claimed by the plaintiffs but within the larger area claimed by the defendants. Since the claim before the Court was that of the plaintiffs, with no cross-action by the defendants, we are therefore concerned, for the purpose of Chief Akinjide's submissions on this ground of appeal, with that portion of the acquired land verged yellow-falling within the area verged pink in the plaintiffs' plan which formed only part of the total area (according to the defendants' plan) acquired by Government. Notice of acquisition of land for public purposes pursuant to the Public Lands Acquisition Law, Cap. 105 Volume VI Laws of Eastern Nigeria, 1963 (which applied to South-Eastern State) is given in accordance with Section 5 thereof which reads:


"5.     Whenever the Minister resolves that any lands are required for a public purpose he shall give notice to the persons interested or claiming to be interested in such lands, or to the persons entitled by this Law to sell or convey the same or to such of them as shall after reasonable inquiry be known to him (which notice may be as in Form A in the Schedule or to the like effect)."


Six weeks interval is given for the vesting of the land in the Government from the date the Notice is given for the acquisition (Section 8(1)).


Section 8(2) of the Law provides that:


"At the expiration of such period the Minister and all persons authorized by him shall be entitled to enter into and take possession of such lands accordingly."


By Section 25 of the Law, the Government through the Minister, may at any time after the expiration of the six weeks, by ex-parte motion, apply to the High Court for a certificate of title to the whole or any part of the lands described in the Notice. The High Court is enjoined, under the section, upon proof of service and publication of the notice, to grant a certificate of title to the Government. Section 25 reads:


"The Minister, may at any time after the expiration of six weeks from the date of the service and publication of the notice mentioned in section 5, apply ex parte by summons to the High Court for a certificate of title to the whole or any part of the lands described in such notice and upon such application the court shall, upon proof of the service and publication of the said notice, grant a certificate of title as in Form D in the Schedule or to the like effect to the whole of the lands described in such notice or to that part thereof in respect of which the application is made, which certificate shall not be questioned or defeasible by reason of any irregularity or error, or defect in the notice or want of notice, or of any other irregularity, error or defect in the proceedings previous to the obtaining of such certificate."


Calculating from the 18th of August 1972 (the day following the date of the issue of the acquisition Notice) the Government would be entitled to go into possession of the acquired land on 30th September 1972, the six weeks period ending on 29th September 1972. The date on which the land vested in the Government was 30th September 1972, notwithstanding the day thereafter when the Court would have granted certificate of title to the Government in accordance with Section 25. It was apparently for the reason that the land in dispute had already vested in the Government before the issue of the writ on 13th November, 1972 that Chief Akinjide had urged on us the argument that the plaintiffs' claim for damages for trespass and injunction was inappropriate.


But the plaintiffs' claim was, according to the Statement of Claim, in respect of trespass said to have been committed by the defendants between 1967 and 1970. In paragraph 11 of the Statement of Claim the plaintiffs averred that-


"The defendants without obtaining the leave or authority of the plaintiffs broke into and entered upon the land in dispute during the civil war between 1967 - 1970 and build (sic) houses on the land in dispute and have threatened to continue with these and other acts of trespass thereon.


"Between 1967 and 1970" the plaintiffs were, according to the statement of claim and the evidence in support, exclusively in possession of the land in dispute. The Government had then neither acquired, nor given notice of its intention to acquire, nor had gone into possession of, any part of the land. It being an elementary principle of law that trespass is actionable at the suit of the person in possession, actual or constructive, at the time the trespass was committed, the plaintiffs were entitled to maintain an action for trespass in 1972 for trespass committed by the defendants "between 1967 and 1970", the action not having been barred by limitation of time and not otherwise rendered unmentionable. Even where the title of both the plaintiff and the defendant to a land in dispute was held to be defective as in ALHAJI FASASI ADESHOYE Vs. J. O. OSHIWONIMU (1952) 14 W.A.C.A. 86 the plaintiff who was in de facto possession of the land sustained his action in trespass against the defendant. When this basic legal principle was pointed to Chief Akinjide he readily conceded the point that the plaintiffs were entitled to maintain in 1972 their action for trespass committed by the defendants between 1967 and 1970. With this concession, we were obliged to strike out Ground 8 of the grounds of appeal.


Appellants' Counsel then argued the issue of res judicata based on the earlier proceedings in the Native Court, Exhibit 2. While conceding that the issues and subject-matter of that earlier case where the same as in the case on hand, Chief Akinjide strenuously argued that the parties were not the same. He pointed out that in Exhibit 2 the parties were:


"Chief NDOHOSE EDOHO of Afaha Eket AND

Ben Ikpang of Ekpene Ukpe"


In that earlier case, he submitted, the plaintiff did not sue, and the defendant did not defend, in a representative capacity but in the instant case taken out in the Calabar High Court, the case was prosecuted and defended in a representative capacity. He referred us to the finding of the Eket Clan Court at pages 12 to 13 of Exhibit 2 in which the Court held that:


"The Defendant cleared the Plaintiff's land Ndun Ekpe Etok and planted his crops. Defendant told the court he did so at the order of his Chief Odo Akpa. Chief Odo Akap when called told the Court that the Defendant and others came and told him that they wanted to go and clear the disputing land. He had agreed for them to go and clear it that the Plaintiff may from seeing it come and explain how he or they came to be the owner of the land. That was not a good way to claim title to the land. It was stated that the land Ndun Ekpe Etok was the property of the Plaintiff's grand father Akanimo since the death of Ekpe Etok their half brother. The evidences collected proved to us that the disputing land Ndo Ekpe Etok belong to the Plaintiff. Judgment for Plaintiff for his land Ndu Ekpe Etok.

Defendant to root out his crops from the said land in 3 days and pay 10 shillings costs to Plaintiff at once."


and argued that the tenor of that judgment showed clearly and convincingly that the suit was a personal action between the parties in which their families were not involved. Being a personal action and not a representative one and a declaratory judgment being discretionary, the learned trial Judge ought to have exercised his discretion refusing the declaration. He referred us to Kunstler v. Kunstler (1969) 3 ALL E.R. 673 at 675.


There was no evidence, he urged, that the family of the appellants knew of the case, Exhibit 2, nor was there evidence that they participated. He cited the decision of this Court in IDOWU ALASE and Ors. v. SANYA OLORI ILU and Ors. (1965) N.M.L.R. 66 and contended that the appellants, on the facts of this case, could not be held to have been caught by the principle of standing by and therefore estopped by their conduct from reopening the matter. Chief Akinjide agreed that the judgment of the Native Court which was restored by the Magistrate's Court in Exhibit 2 was in favour of the plaintiff/respondents in this appeal and conceded that if we found that the parties were the same then the appeal must be resolved in favour of the plaintiff/respondents.


If is fundamental law that to sustain a plea of res judicata in a case the party raising the plea must show that the parties, the issues and subject-matter of the current case are the same as in the previous case adjudicated upon by a court of competent jurisdiction before whom the proceedings terminated to finality. Put in another way, a final judgment already decided between the same parties or their privies on the same question by a legally constituted court having jurisdiction is conclusive between the parties, and the issue cannot be raised again. This is founded on a public policy which requires that interest reipublicae ut sit finis litium. Perhaps one of the best expositions of the principle is to be found in the speech of Diplock, L.J., in MILLS v. COOPER (1967) 2 ALL E.R. 100 at 104 who, while defining estoppel per judicatam stated that:


"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, and assertion, whether of facts or of 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 civil proceedings to be incorrect, unless further material which is relevant to the correctness or incorrectness of the assertion and could not be reasonable diligence have been adduced by that party in the previous proceedings has since become available to him."


But who the parties are, what the issues involve and what the subject-matter is, may not always be easy to determine especially in Courts, such as the Native Courts of old and the more recent customary courts, where lawyers trained in the art of drafting claims and settling pleadings with precision, do not normally practice. In those Courts another fundamental law has been worked out, over the years, in respect of cases therein determined. The guidel

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