DENNIS AKOMA & ANOR V OBI OSENWOKWU & ORS

CORAM

IDRIS LEGBO KUTIGI, JUSTICE, SUPREME COURT

EMMANUEL OBIOMA OGWUEGBU, JUSTICE, SUPREME COURT

UTHMAN MOHAMMED, JUSTICE, SUPREME COURT

SAMSON ODEMWINGIE UWAIFO, JUSTICE, SUPREME COURT

AKINTOLA OLUFEMI EJIWUNMI, JUSTICE, SUPREME COURT

PARTIES

FEDERAL MORTGAGE BANK OF NIGERIA

APPELLANTS 

P.N. OLLOH

RESPONDENTS 

AREA(S) OF LAW

CONSTITUTIONAL LAW, APPEAL, PRACTICE AND PROCEDURE, LAND LAW, EVIDENCE, ESTOPPEL, CUSTOMARY LAW, LIMITATION OF ACTIONS, JUDGMENT AND ORDERS

SUMMARY OF FACTS

This case arose from a dispute over a portion of land between two communities. The Appellants, Dennis Akoma and Adama Maxwell, representing the people of Usebe Village Ebu, and the Respondents, Obi Osenwokwu and Idebuba Ogboi, representing the people of Ogodor, along with Copane Farms (Nigeria) Ltd filed competing claims for title to the disputed land.

The matter originated from two separate suits that were consolidated. In Suit No. 01/11/75, the Appellants were the Defendants, while in Suit No. 01/11/76, they were the Plaintiffs. After consolidation, the Appellants became the Defendants while the Respondents remained as Plaintiffs. Suit No. 01/11/75 was initially commenced at the Asaba High Court as Suit No. A/30/72 but was later transferred to Ugwuashi-Uku High Court. On May 21, 1976, the Appellants also instituted Suit No. 01/11/76 at Ugwuashi-Uku High Court. The two suits were consolidated on October 27, 1978.

The Respondents claimed that the disputed land, known as Ofia Ogodo (Ogodo Bush), belonged to them according to native law and custom. They sought a declaration of title, damages for trespass, and an injunction restraining the Appellants from further trespass. The Appellants counterclaimed for a declaration that the land, which they called Iyi-Nkpume land, belonged to them, along with damages and an injunction.

Both parties called witnesses and tendered evidence, including a key exhibit (Exhibit “C”), which was a previous judgment from Odiani Clan Court (Civil Case No. 74/50) where the land had been adjudged to belong to the Respondents’ ancestors. After evaluating the evidence, the trial judge ruled in favor of the Respondents, declaring that they were entitled to customary right of occupancy of the land, and awarding damages and an injunction against the Appellants.

The Appellants appealed to the Court of Appeal, but their appeal was dismissed on July 30, 2003, approximately 450 days after final addresses were made on February 18, 2002. The Appellants then appealed to the Supreme Court, contending that the Court of Appeal’s judgment was a nullity because it was delivered outside the 90-day period prescribed by Section 294(1) of the 1999 Constitution, and that the Court of Appeal erred in treating Exhibit “C” as res judicata.

HELD

1. The appeal was dismissed.

2. The Supreme Court held that the delay in delivery of the Court of Appeal’s judgment did not occasion a miscarriage of justice as no prejudice was shown by the Appellants.

3. The Court held that the failure of the Presiding Justice of the Court of Appeal to report the delay to the National Judicial Council as required by Section 294(6) of the 1999 Constitution was an administrative matter that did not affect the validity of the judgment.

4. The Court found that the Court of Appeal correctly held that Exhibit “C” (the judgment in the earlier Native Court case) constituted “issue estoppel” rather than res judicata, preventing the Appellants from relitigating issues already decided.

5. The issue of estoppel was properly pleaded in the Respondents’ statement of claim and joined by the Appellants in their statement of defense, thus it was not raised suo motu by the Court of Appeal.

6. The Court affirmed the concurrent findings of the trial court and Court of Appeal that the land originally belonged to the entire Ebu community before it was sold to the Respondents’ ancestors, not to the Appellants’ Usebe village alone.

7. No costs were awarded to promote brotherhood and good neighborliness between the parties.

ISSUES

1. Whether in the face of the provisions of Section 294(1) and (6) of the 1999 Constitution, the judgment of the lower Court is a nullity?

2. Whether the learned justices of the Court of Appeal were right in dismissing the Appellants’ appeal on the ground that Exhibit ‘C’ constituted res judicata?

3. Whether the Court of Appeal was right in pronouncing on an issue not canvassed before the Court without inviting parties to address on it?

RATIONES DECIDENDI

MANDATORY TIME LIMIT FOR JUDGMENT DELIVERY — INTERPRETATION OF SECTION 294(1) OF THE 1999 CONSTITUTION

“The true position of the law, in the light of the foregoing provision, is that a party should not just go on appeal merely on the ground that the judgment he wants to set aside was delivered outside the three months (90 days) period. He will have to fight the appeal on all known grounds of appeal which can render the judgment unsustainable; not merely on the assessment of facts. Indeed, an appellant with good grounds of appeal may have no need at all to canvass a ground of non-compliance with the 90 days, except for the purpose of having the judge (or justice) disciplined by drawing attending of the breach to the Court hearing the appeal in view of subsection (6) of the Section 294 of the 1999 Constitution (formerly subsection (5) of Section 258 of the 1979 Constitution.” — Per SULEIMAN GALADIMA, JSC

DELAY IN DELIVERY OF JUDGMENT — WHEN DELAY VITIATES JUDGMENT

“The delay perse does not lead to a judgment being vitiated or nullified. The delay must occasion a miscarriage of justice to be in such a conclusion. In other words it has to be established that the delay occasioned a miscarriage of justice in that the trial judge did not take a proper advantage of having seen or heard the witnesses to, testify or that he had lost his impressions of the trial due to such inordinate delay.” — Per SULEIMAN GALADIMA, JSC

APPLICATION OF SECTION 294 OF THE CONSTITUTION — DISTINCTION BETWEEN TRIAL AND APPELLATE COURTS

“I do not agree with the submission of the learned counsel for the appellants that the delay of the lower Court in delivery of its judgment affected the Courts’ ‘perception, appreciation and evaluation of the case’ or that the delay has eroded the confidence in the entire judicial system. The reasons for my so held are not far-fetched. Careful study of the provisions of S. 294 of the Constitution will show that they apply more particularly to judgments of the trial Courts.” — Per SULEIMAN GALADIMA, JSC

REPORTING NON-COMPLIANCE WITH SECTION 294(1) TO NATIONAL JUDICIAL COUNCIL — EFFECT OF FAILURE TO REPORT

“The requirement that ‘a person presiding at the sitting of the Court to send a report on the case to the Chairman of the National judicial Council’ in which judgment was delivered outside 90 days, so that he could inform the council to take such action as it may deem fit, is a purely administrative provision meant to notify the council, which in the circumstance of a particular, may deem it necessary to take any disciplinary action against Judges who flagrantly ‘or inordinately’ refuse to comply with the provision of this section of the Constitution.” — Per SULEIMAN GALADIMA, JSC

DISTINCTION BETWEEN RES JUDICATA AND ISSUE ESTOPPEL — APPLICATION TO FACTS

“What is irksome in this case is the way the appellants have strenuously argued that the issue of res judicata does not avail the respondents as plaintiffs. That Exhibit ‘C’ in suit No 74/50 does not constitute a plea of issue of estoppel was clearly pleaded. Therefore, even if this plea did not meet all the conditions to constitute res judicata, I agree with the respondents that, it would at least constitute a plea of issue estoppel in respect of the issue that the entire Ebu Community, including their Star Witness, Chief Okoda from the present appellants’ Usebe Quarters or village of Ebu Community, claimed and led evidence that the land originally belonged to the said entire Ebu Community.” — Per SULEIMAN GALADIMA, JSC

PLEADING OF ESTOPPEL — FORMAL REQUIREMENTS

“It is trite law that estoppels need not be pleaded in any special form, provided that the facts which can be interpreted as constituting estoppels are stated in such a way that estoppels is raised, and this has been clearly done by the respondents herein.” — Per SULEIMAN GALADIMA, JSC

COURT’S DISCRETION TO RAISE ISSUES SUO MOTU — WHEN INVITATION TO ADDRESS IS REQUIRED

“With due respect, the contention of the appellants’ counsel that this was a new issue introduced at the trial Court and raised by the Court of Appeal suo motu, is based on mere technicality, barren and lacks sustainability.” — Per SULEIMAN GALADIMA, JSC

CONCURRENT FINDINGS OF FACT — WHEN SUPREME COURT WILL NOT INTERFERE

“The concurrent findings of fact by the two Courts below in the absence of any exceptional circumstances or a miscarriage of justice cannot be disturbed by this Court.” — Per MARY UKAEGO PETER-ODILI, JSC

DETERMINATION OF MISCARRIAGE OF JUSTICE IN DELAYED JUDGMENT — RELEVANT CONSIDERATIONS

“However in determining whether a miscarriage of justice has occurred as a result of the said delay, one has to take into consideration not simply the length of time between when the final addresses were presented and the date the judgment was delivered, but the effect the delay has produced in the mind of the Court: such as if the delay has affected the Court’s perception of case/evidence, appreciation and evaluation of the case of the parties particularly where the evaluation is based on the credibility of the witnesses as attested to by their demeanour while testifying.” — Per WALTER SAMUEL NKANU ONNOGHEN, JSC

PURPOSE OF SECTION 294(6) OF 1999 CONSTITUTION — ADMINISTRATIVE DIRECTIVES

“I hold the considered view that the above submission is misconceived as the provision of sub-section (6) of Section 294 of the 1999 Constitution is directive in nature – not mandatory – and it is crafted for administrative convenience for the purpose of discipline of the judicial officer(s) concerned, where appropriate. It has nothing to do with the validity of the judgment concerned which validity depends on appellant satisfying the Appellate Court that the inordinate delay has resulted in a miscarriage of justice as earlier discussed in this judgment and provided for under subsection (5) of Section 294 of the 1999 Constitution, as amended.” — Per WALTER SAMUEL NKANU ONNOGHEN, JSC

BURDEN OF PROOF — SHOWING MISCARRIAGE OF JUSTICE FROM DELAYED JUDGMENT

“In circumstance such as this, it is the duty of the Appellants to show how the delay has affected the perception, appreciation and evaluation of the evidence by the judge or justices as the case may be or how the delay eroded the confidence in the entire judicial process which produced the judgment.” — Per JOHN INYANG OKORO, JSC

EFFECT OF SECTION 294(6) — ADMINISTRATIVE PROVISION NOT BASIS FOR ANNULMENT

“It is my view that Section 294(6) of the Constitution of the Federal Republic of Nigeria is merely an administrative provision which is meant to enable the National Judicial Council to take disciplinary measures against erring judges and not a provision to enable the body to set aside any judgment. Any failure to make any report cannot by any stretch of imagination lead to the annulment of the judgment.” — Per JOHN INYANG OKORO, JSC

ESTOPPEL — BINDING EFFECT OF EARLIER DECISIONS ON LAND OWNERSHIP

“What I am trying to say, is that it is not for the appellants at subsequent periods after the judgment in Exhibit ‘C’ to go against any of the issues therein dealt with and not appealed against. They are not allowed to dance to a tune only to come later to say that dance was not theirs as they intend to dance differently at a new occasion. They must be consistent apart from being bound for all time on an issue deliberated and concluded by a tribunal or Court and the matter not appealed against successfully.” — Per MARY UKAEGO PETER-ODILI, JSC

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria, 1999 (as amended)

2. Evidence Act, Cap E14, Laws of the Federation of Nigeria, 2004

3. Supreme Court Act, Cap S15, Laws of the Federation of Nigeria, 2004

4. Court of Appeal Act, Cap C36, Laws of the Federation of Nigeria, 2004

5. Land Use Act, Cap L5, Laws of the Federation of Nigeria, 2004

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