Legalpedia Citation: (2024-05) Legalpedia 91813 (CA)

In the Court of Appeal

HOLDEN AT MAKUARDI

Tue May 28, 2024

Suit Number: CA/MK/116/2022

CORAM

Cordelia Ifeoma Jombo-Ofo ,Justice court of Appeal

Biobele Abraham Georgewill, Justice court of Appeal

Ibrahim Wakili Jauro, Justice court of Appeal

PARTIES

1. CHIEF OLUMA AJAMA (CHIEF OF EGBA COMMUNITY)
2. ISA NOAH
3. JACOB ANDREW
4. AMODU IKPA
5. AMINU AIGBECHE
6. ISA ELUMA
7. AMEDU ULOKO

8.EZEKIEL OJEPA

9. AYO AGBANI
10. EMMANUEL SYLVESTER
11. YAHAYA OLUMA
12. OCHEFIJE OCHOKWUNU

APPELLANTS

STEPHEN BABA OJEPA (SUING FOR HIMSELF AND FOR OLOGBA PEOPLE/COMMUNITY IN AGATU LGA, BENUE STATE)

RESPONDENTS

AREA(S) OF LAW

AREAS OF LAW: APPEAL, CONSTITUTIONAL LAW, EVIDENCE, JUDGMENT, LAND, PRACTICE AND PROCEDURE, TORT

SUMMARY OF FACTS

The Respondent, acting in a representative capacity for himself and the Ologba people/community in Agatu Local Government Area of Benue State, initiated an action against the Appellants (the Defendants) at the lower court. He sought a declaration that he and other members of the Ologba community are the rightful owners of the Udu, Okatabu, Ochulo, Owenyi, Opeh, Enekogwu, and Olote fish ponds. He argued that the Defendants’ continued fishing in these ponds, despite protests from him and his community and a prior court judgment by the Upper Area Court of Benue State in Suit No. CV. CASE NO. OB/126/80 dated 19.08.80, constituted self-help, lawlessness, abuse of due process, and provocation, causing inconvenience, expenses, and psychological trauma to him and his community.

The lower court (High Court of Benue State, Otukpo Division) granted two reliefs in its judgment. However, the Appellants, dissatisfied with the judgment, appealed against the entire decision, including the claims that were dismissed.

HELD

Appeal allowed in part

ISSUES

1. Whether it is not the duty of the Respondent to plead and prove the identity of the fish ponds claimed with certainty in the Statement of Claim?

2. Whether a Court of law can adjudicate and pass a judgment against dead persons when the information of their demise has been brought before the Court during the proceedings?
3. Whether it was right for the Court to have ignored the contents of Exhibits P1, P2, P3, P4 and D1 and hold that the Appellants pleaded and alluded to Suit No. CVR 11 10/10/72 when same judgment was tendered by the Respondent which amounted to res judicata thereby denying the Court of its jurisdiction to try the matter?
4. Whether the Respondent can institute and prosecute a case against the Appellants in a representative capacity without leave of the lower Court?
5. Whether the lower Court properly evaluated the whole evidence adduced by the Respondent before giving judgment in their favor?

RATIONES DECIDENDI

RECORD OF APPEAL – CONDUCT OF COURTS TO RECORDS OF APPEAL

Now in law, both the parties and the Court are bound by the Record of Appeal. It follows therefore, that in the absence of any challenge of the Record of Appeal by any of the parties in this appeal, both the parties in this appeal and this Court are bound by the above records as disclosed in the Record of Appeal. See Ama Real Estate Ltd. V. Heritage Bank Plc (2022) LPELR – 57046 (CA). See also Ndayako V. Mohammed (2006) 17 NWLR (Pt. 1009) 655 @ p. 665.

– Per B. A. Georgewill, JCA

DEATH – CONDUCT OF COURTS WHERE A PARTY TO A SUIT DIES

…I hold firmly that while the issue of the death of the 1st Appellant has been sufficiently communicated to the lower Court, which was therefore, a duty, and so bound to strike out his name from the record, the alleged death of the 2nd Appellant as 2nd Defendant was nowhere and at no time communicated to the lower Court, and therefore, there was no basis in law for the lower Court to strike out his name from the records. See SGB Ltd V. Buraimoh (1991) 1 NWLR (Pt. 108) 428 @ p. 434, where the Supreme Court per Muhammad JSC., had succinctly put this issue in proper context inter alia thus:

“It is settled law that a dead person ceases to exist in the eyes of the law and any cause or action pending against such a person automatically abates unless it is one that survives the person”

See also John V. Rogers & Ors (2023) LPELR – 59617 (CA).

– Per B. A. Georgewill, JCA

DEATHWHERE THE DEATH OF A PARTY IS NOT BROUGHT TO THE NOTICE OF THE COURT

…I hold firmly that while the issue of the death of the 1st Appellant has been sufficiently communicated to the lower Court, which was therefore, a duty, and so bound to strike out his name from the record, the alleged death of the 2nd Appellant as 2nd Defendant was nowhere and at no time communicated to the lower Court, and therefore, there was no basis in law for the lower Court to strike out his name from the records. See SGB Ltd V. Buraimoh (1991) 1 NWLR (Pt. 108) 428 @ p. 434, where the Supreme Court per Muhammad JSC., had succinctly put this issue in proper context inter alia thus:

“It is settled law that a dead person ceases to exist in the eyes of the law and any cause or action pending against such a person automatically abates unless it is one that survives the person”

See also John V. Rogers & Ors (2023) LPELR – 59617 (CA). – Per B. A. Georgewill, JCA

IDENTITY OF LAND – WHERE THE IDENTITY OF LAND IN DISPUTE IS KNOWN

Indeed, in law once the identity of land in dispute is very well known to the parties and/or not put in issue, the Court would not allow it to clog the course of justice in determining who as between the parties is the owner of the land in dispute. In Alhaji Mukhtar Ahmed Mohammed V. Mouktar Mohammed (2012) 11 NWLR (Pt. 1310) 1 @ pp. 32 – 33, it was succinctly opined inter alia thus:

“It is the duty of a claimant to prove clearly and unequivocally the precise area to which his claim relates. However, this duty does not arise if the Defendant in his Statement of Defense does not dispute the identity of the property or the location of the property in dispute. The Defendant must specifically make it an issue in his pleading by disputing the area or location or features described by the Claimant.”

See also Afatakpa V. Fejokwu & Anor (2021) LPELR – 56697 (CA). See alsoKwewum V. Eyi (2015) LPELR – 25633(CA). – Per B. A. Georgewill, JCA

IDENTITY OF LAND – DUTY OF THE CLAIMANT TO ESTABLISH THE IDENTITY OF LAND IN DISPUTE

Indeed, in law once the identity of land in dispute is very well known to the parties and/or not put in issue, the Court would not allow it to clog the course of justice in determining who as between the parties is the owner of the land in dispute. In Alhaji Mukhtar Ahmed Mohammed V. Mouktar Mohammed (2012) 11 NWLR (Pt. 1310) 1 @ pp. 32 – 33, it was succinctly opined inter alia thus:

“It is the duty of a claimant to prove clearly and unequivocally the precise area to which his claim relates. However, this duty does not arise if the Defendant in his Statement of Defense does not dispute the identity of the property or the location of the property in dispute. The Defendant must specifically make it an issue in his pleading by disputing the area or location or features described by the Claimant.”

See also Afatakpa V. Fejokwu & Anor (2021) LPELR – 56697 (CA). See also Kwewum V. Eyi (2015) LPELR – 25633(CA). – Per B. A. Georgewill, JCA

ISSUE – WHERE FACTS ARE PUT IN ISSUE IN A SUIT

In law facts are put in issue in the pleadings of the parties and not merely in the submissions of counsel. So, could it be said that from the averments of the Appellants as above, the issue of the identity of the fish ponds as specifically named and pleaded in the pleadings of the Respondent was put in issue by the Appellants? I think not! In law, a bare denial without more and putting an adverse party to strict proof alone neither amounts to effective denial, as such a denial is at best a bare and ineffective denial, nor does it amount to putting such facts in issue. – Per B. A. Georgewill, JCA

DENIAL – THE EFFECTS OF A MERE DENIAL WITHOUT MORE

In law facts are put in issue in the pleadings of the parties and not merely in the submissions of counsel. So, could it be said that from the averments of the Appellants as above, the issue of the identity of the fish ponds as specifically named and pleaded in the pleadings of the Respondent was put in issue by the Appellants? I think not! In law, a bare denial without more and putting an adverse party to strict proof alone neither amounts to effective denial, as such a denial is at best a bare and ineffective denial, nor does it amount to putting such facts in issue. – Per B. A. Georgewill, JCA

RES JUDICATA – MEANING OF RES JUDICATA

My lords, in law the phrase ‘res judicata’ simply means a thing adjudicated upon. It also means that an issue that has been definitely settled by judicial decision. To give rise to res judicata therefore, the following three essential elements must be shown to co – exist, namely:

1. An earlier decision on the issue
2. A final judgment on the merits, and
3. The involvement of the same parties or parties in privy with the original parties. See Adeyemi – Bero V. Lagos State Development Property Corporation and Anor (2012) LPELR – 15 (SC) 77; Ikpeamanam V. UBN Plc & Anor (2014) LPELR – 22547 (CA). –Per B. A. Georgewill, JCA

RES JUDICATA – THE ELEMENTS THAT GIVE RISE TO RES JUDICATA

My lords, in law the phrase ‘res judicata’ simply means a thing adjudicated upon. It also means that an issue that has been definitely settled by judicial decision. To give rise to res judicata therefore, the following three essential elements must be shown to co – exist, namely:

1. An earlier decision on the issue
2. A final judgment on the merits, and
3. The involvement of the same parties or parties in privy with the original parties. See Adeyemi – Bero V. Lagos State Development Property Corporation and Anor (2012) LPELR – 15 (SC) 77; Ikpeamanam V. UBN Plc & Anor (2014) LPELR – 22547 (CA). –Per B. A. Georgewill, JCA

RES JUDICATA – THE IMPORTANCE OF RES JUDICATA

The doctrine of res judicata is a very pertinent one in our system of administration of justice as bequeathed to us by the principles of the common law, and it is intended to bring to an end infinite or endless litigation over same subject matter between same parties that had been adjudicated upon by a Court of competent jurisdiction. However, for it to apply and be invoked in subsequent proceedings, all the constituent elements of res judicata must be shown to co-exist. Thus, merely showing the existence of one or more but not all the constituent elements of the doctrine of res judicata is fatal to the plea of res judicata. See Adeyemi-Bero V. Lagos State Development Property Corporation and Anor (2012) LPELR – 15 (SC) 77. See also Laga V. Hama & Anor (2019) LPELR – 48140 (CA); Ikpeamanam V. UBN Plc & Anor (2014) LPELR – 22547 (CA); Cole V. Jibunoh & Ors (2016) LPELR – 40662 (SC). – Per B. A. Georgewill, JCA

RES JUDICATA – THE CONDITIONS FOR THE APPLICATION OF RES JUDICATA

The doctrine of res judicata is a very pertinent one in our system of administration of justice as bequeathed to us by the principles of the common law, and it is intended to bring to an end infinite or endless litigation over same subject matter between same parties that had been adjudicated upon by a Court of competent jurisdiction. However, for it to apply and be invoked in subsequent proceedings, all the constituent elements of res judicata must be shown to co-exist. Thus, merely showing the existence of one or more but not all the constituent elements of the doctrine of res judicata is fatal to the plea of res judicata. See Adeyemi-Bero V. Lagos State Development Property Corporation and Anor (2012) LPELR – 15 (SC) 77. See also Laga V. Hama & Anor (2019) LPELR – 48140 (CA); Ikpeamanam V. UBN Plc & Anor (2014) LPELR – 22547 (CA); Cole V. Jibunoh & Ors (2016) LPELR – 40662 (SC). – Per B. A. Georgewill, JCA

EVIDENCE – WHERE A PARTY FAILS TO PRODUCE AND TENDER EVIDENCE

Generally, or should I say ordinarily, a party who fails to produce and tender in evidence a document relied upon cannot expect the Court to rely and make use of such document not produced and tendered before it. See Obu & Anor V. Okigwe & Ors (2018) LPELR – 43938 (CA). It is thus, safe to hold, as the lower Court correctly held, that in the absence of the judgment relied upon by the Appellant, they are deemed in law to have abandoned their plea of res judicata. I think such a finding is fair enough and accords with the dictates of justice. See Eya V. Olopade 2011 5 SC Pt II 97. – Per B. A. Georgewill, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Mineral Act
   

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