3PLR – AMASA V. BIG TOM

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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AMASA

V.

BIG TOM

COURT OF APPEAL

(PORT HARCOURT DIVISION)

3PLR/1985/15 (CA)

OTHER CITATIONS

BEFORE:

KOLAWOLE, J.C.A

BETWEEN

CHIEF MATTHEW GOGO AMASA

EZEKIEL OMBU

OMONI EREKOSIMA

ANTHONY OBENE

UNION SOKARI

LUCKY WARMATE

ALABO ALABI

KARIBO BEBENIBO

ALLEN JOHN BULL (for themselves and as representing the Chiefs and people of Tema Community)

AND

CHIEF WILLIAM SELEYE BIG TOM

CHIEF IBIBO OBU DOKUBO

CHIEF CHRITOPHER THOMPSON (For themselves and as representing the Chiefs and people of Abalama Community)

REPRESENTATION

C.O.Akpamgbo, SAN (with him, E.C.J. Ifeanacho) – for the Apellants

A.R. George – for the Respondents

MAIN ISSUES

Issue:

CUSTOMARY LAW – Whether the respondents are estopped from claiming title over the parcel of land in dispute by virtue of the Native Court proceedings and judgement in 1934 and between them and the appellants.

REAL ESTATE – Whether the appellants are entitle to rely on the evidence of the plaintiff which shows that the land in dispute was the land litigated upon between the plaintiffs and the defendants in the earlier cases.

PRACTICE AND PROCEDURE – What is the effect of evidence led on matters not pleaded?

Facts:

This was an appeal against the judgement of the High Court of Rivers State Degema Judicial Division which gave judgment in favour of the respondent who had used for a declaration that they are entitled to customary right of occupancy over the parcel of land known as Iga-Piri and Iga Creek situated at Abalama: N4, 970.35 as money paid by Guffanti Nigeria Limited to Degema Local Government Authority in favour of the owners of the land as compensation and a perpetual injunction restraining the defendants of Tema Community from committing trespass on the said land and from claiming compensation due on the land.

The respondents claimed that they granted the appellants the land in dispute. The appellants denied that the respondents granted them land but they admitted that by custom of the appellants the corpses of the dead in their community are not buried on their land where they live. In their statement of defense, the appellants pleaded the Kalabri Native Court judgment in No.286/34 an action they instituted in 1934 against the respondents in respect of the land in dispute and over which they obtained judgment for trespass. The appellants further pleaded the appeal against that judgment in suit No. 4/35. In paragraph 15 of the statement of defense the appellants pleaded that the respondents are estopped from asserting ownership of the land in dispute.

The defendants further pleaded that there was a proceeding of an Arbitration Panel which showed that the compensation payable in respect of the land should be paid to the appellants. The proceedings of the Arbitration Panel were marked rejected and not admitted in evidence. The proceedings of the Panel was not copied into the Record of Appeal. On appeal, the appellants sought to argue on the proceedings, which was not copied into the record.

MAIN JUDGEMENT

Held (Unanimously allowing the Appeal):

On when estoppel per rem judicatam applies-

Estoppel per rem judicatam will apply where the parties, issues and the subject matter are the same in the previous action as those in the action in which the plea is raised. In the instant.

2 On when estoppel per rem judicatam applies-

The plea of estoppel res judicatam applies not only to points upon which the court was actually required by the parties to form an opinion and pronounce judgment but to every point which properly belonged to the subject of litigation and which the parties exercising reasonable diligence might have brought forward at the time. (P.104, Paras. G-H)

On Onus on defendant relying on estoppel “per rem judicatam”-

While it is the law that the onus on the defendant who pleads estoppel per rem judicatam to prove all the essential ingredients of the defense one of the which is the identity of the land in the two actions, the defendant is entitled to rely on the admission by the plaintiff that the land in dispute in the present suit is the same as the land litigated upon on the previous suit. (Ajao v. Alao.

On How to construe proceedings of Native Courts for purposes of res judicata.

The law is well settled that when dealing with the proceedings in a native court for the purposes of deciding the issue of res judicata the court is permitted to travel outside the claims as stated on the writ to the evidence in the case in order to discover the real subject matter of the dispute and the claim of the plaintiffs. ( P.101, paras.G -H )

On Duty on plaintiff’s in an action for declaration of title to land-

The plaintiff must succeed on the strength of his own case and not on the weakness of the defendant’s case may itself support the plaintiff’s case and contain evidence on which the plaintiff is entitled to rely.

On when plan of land is not necessary in action for title–

Where a party admits in an action for the title that the land in dispute was the same land litigated upon between the parties to the suit in the previous suit, it is not necessary to produce a plan of the land In dispute in the previous suit to establish that the same land is in dispute on the two occasions; i.e. the previous action and the present action. ( Pp.103-104, paras.H-A)

On How to plead grant of land according to custom-

The law is well settled that if a person bases his titled on a grant according to custom by a particular person, family or community, that party must go further to plead and prove the origin of that particular person, family or community unless that title has been admitted. ( Mogaji v. Cadbury (Nigeria).

On Treatment of evidence led on matters not pleaded-

Evidence of a party on a point which depart from his pleadings goes to no issue and makes no difference that the other side did not object to the evidence or that the judge did not reject it.( P.106,paras. A and F)

On Duty on counsel and court in respect of inadmissible evidence

It is the duty of counsel to object to inadmissible evidence and the duty of the trial court to refuse to admit inadmissible evidence but of notwithstanding this evidence is still admitted through oversight or otherwise than it is the duty of the court when it comes to give judgement to treat the inadmissible evidence as if it had never been admitted. ( P. 106, para.G)

On Duty on counsel to ensure that the Record of Appeal is complete

It is councel’s duty to ensure that record of appeal is a complete record and where the record of appeal is not complete, the appellant cannot complain of a ground of appeal which is not considered because of the incomplete record.( p.106,paras B-C )

KOLAWOLE,J.C.A., ( Delivering the Leading Judgement): On 12 October, 1983, Fiberesima, J. entered judgement in

favuor of the plaintiffs against the defendants in suit number DHC/5/79 at the Degema Judicial Division of the High Court of the Rivers State for- Declaration that the plaintiffs have a customary right of occupancy over the piece or parcel of land known as Iga-piri and Iga Creek situate at Abalama as particularly shown and deliniated on plan No.TJR 151 LD dated 10th August, 1979:

N4,970.35 as money paid by Guffanti Nigeria Limited to Degema Local Government Authority in favour of the owners of the land as compensation;

Perpetual injunction restraining the defendants to Tema Community and their servants from committing any trespass on the said land Iga -piri and Creek (Iga Creek) and from claiming compensation due on the land and on the Creek from Guffanti Nigeria Limited and from the West minister Dredging company Limited or from any other company or person or from the Degema Local Government Authority or Council.

The defendants who are now appellants were dissatisfied with the judgement of the court below, consequently, they have brought an appeal to this court. The defendants who shall hereinafter be referred to as the appellants filed with their Notice of Appeal eight prolix grounds of appeal. Mr.C.O. Akpamgbo S.A.N. for the appellants sought for and was granted leave to file and argue three additional grounds of appeal . Both parties exchange their briefs of arguments. Learned Senior Advocate. Mr. Akpamgbo, formulated three question for determination in the appeal, namely-

(1) Is the trial court right to have rejected the Arbitration proceedings, and did this rejection cause a miscarriage of justice?

(2) Did Exhibits B and C, the Kalabari Native Court judgment in suit NO.286/34, the review by the District Officer and the appeal in relation to the same piece of land and between the same parties not creat res judicatam or at least raise the presumption of possession , throwing the burden of disproof of ownership on the Respondents?

(3) Was there a proper evaluation of the evidence such as is required by law?

The plaintiffs who are the Respondents in this appeal formulated five different issues for determination. These issues are as follows-

3.01 Whether the issue before the Kalabari Native Court in suit No. 286/34 ( Exhibit “B”) and that of the District Officer in Appeal Case No 4/35 (Exhibit “C” ) was not a claim for trespass simplicities and not one for a declaration of title to land.

3.02 Whether the land in dispute in the Kalabari Native Court in Suit No. 286 /34 (Exhibit “B”) and consequently that before the District Officer in Appeal No.4/35 (Exhibits “C”) is the same identical land in dispute as Exhibits “A”, and probably

3.03 Exhibits “E” filed with the statement of claim and Defence whether the learned trial judge made a correct approach to the evidence respectively in this suit. tendered by both sides to the suit and thereby properly directed himself as to the onus of proof having regard to the pleading and evidence led before the court.

3.04 Whether the learned trial judge having decided, as he did, that the plaintiffs/ respondents have a customary right to occupancy over the piece or parcel of land known as Iga-piri and Iga Creek situate at Abalama as particularly shown and delineated on plan No. TJR 151 LD dated 10th August, 1979 (Exhibit A )could properly, in law grant perpetual injunction restraining the Defendants /Appellant and their servants from committing any trespass on the said Iga-piri and Iga Creek, notwithstanding the fact that the claim for trespass was disallowed.

3.05 Whether the learned trial judge rightly rejected the so-called arbitration proceedings which the plaintiffs/respondents objected to and whether even if the so-called arbitration Proceedings were admissible in evidence (which the plaintiffs respondents do not concede), the learned trial judge would have rightly come to the same decision he reached.

According to Exhibit ’A’, the plan of the respondents, the cause of action is the area verge Red and in dispute where Guffanti Nigeria limited dug a burrow pit. It is approximately an area of 236,650,00 square meters. The area verge Yellow, a small strip of land, quite a distance from area in dispute, was the area which according to paragraph 6(vi) of the Statement of Claim the respondents claimed they granted to the appellants. The appellants denied this assertion but they admitted that by custom of the appellant the corpses of their community are not buried on their land where they live. On Exhibit ’A’ the verged Red and Yellow are all within the larger area verged Green which the Respondents claim belong to Abalama Community, the land verged Green appears to be an Island showing the land of the Tema people- the appellants on the Western boundary of the area verged Green on Exhibit ’A’ and Tema Bio Creek. The Surveyor called by the respondents as P.W.I gave the distance between the burrow pit that is the land in dispute and the cemetery as 500 meters.

The plaintiffs/respondents pleaded in their statement of claim paragraph 6 (vi). (vii) and (ix) the actions instituted by the appellants against them in respect of part of the land the subject matter of the present suit. In their statement of defence, the appellants pleaded the Kalabari Native Court suit No. 286/34 an action which they instituted in 1934 against the respondents in respect of

the land in dispute and over which they obtained judgement for trespass. The appellants further pleaded the appeal against that judgement in suit No.4/35. In paragraph 15 of the statement of defence the appellants pleaded that the respondents are estopped from asserting ownership of the land in dispute.

The learned trial judge treated the defence of estoppel per rem judicatam at page 97 of the record as follows:-

“The case decided by the Native Court in Suit No.286/34 seemed to be the only rope defendant hung their claim for title on but as Mr. Iyagba rightly submitted the issue was not the same as in this case. In this case the claim is for title to Igapiri and Iga Creek, in suit No.286/34, the claim was that Brass people who fell trees for canoe carving on the permission of Abalama people caused trees to fall on Tema’s graves. It is settled law that claim for trespass is not dependent on the claim for declaration of title, trespass is an issue quite separate and independent from claim to declaration of title: See George Ayeni Oluwi v. Daniel Eniola (1967) 1 NMLR 339.”

Issue 2 in the appellant’s brief and issue 1, 2 and 3 in the respondent’s brief are directed against the defence of estopped per rem judicatam raised by the appellants. Learned Senior Advocate contented in the appellant’s brief that the evidence of P.W.2 at page 55 lines 29-31. Page 56 lines 23-24, that of P.W.3 at page 59 lines 24-25, page 60 lines 9-10 apart from the evidence of defence witnesses second and third on the same question all show that the land in dispute in the present proceedings is the same as in the 1934 Kalabari Native Court suits tendered as Exhibits B and C. It is very helpful to examine the evidence of the respondents’ witnesses to all if they supported the defence of estopped per rem judication raised by the appellants. Chief Christopher Thompson the third plaintiff who testified as plaintiffs’ second witness stated at page 55 lines 25 to 31 as follows:-

“We gave part of the Island near Sonomabila Mini Creek to the defendants to bury their dead. We have never disputed this piece of land with the defendants before the dispute, We had had (?) was one trespass in 1934 in the Native Court over this very Iga-piri: all the time we have been saying this land is our own”

Kenneth Kaladumo who testified as third plaintiffs witness stated at page 59 lines 12-14, 24-26 as follows:-

” I know that Tema and Abalama people had gone to court over this piece of land in dispute.”

“Where Tema people have their burials is now the Land in dispute.

Where Tema people buried was allowed them by the Abalama people.”

The respondents called three witnesses in support of their case. The first witness was the Surveyor who tendered the plan of the land in dispute while the second and third witness were principal Witness who testified as to the ownership of the land in dispute. They as principal witnesses, one Chief Christopher Thompson, the traditional ruler of Alabama and the other a 79 year old witness supported the appellant’s case that the land in dispute is theirs whether by grant or by original settlement. The respondents who claim a declaration of title must prove their case, they cannot rely on any weakness in the case of the defence. (See Kodilinye v. Mbanefo Odu (1955) 2WACA336.) The fact that the appellants did not claim for declaration of title in the previous suit does not help the plaintiffs. (See Ebola AND Ors v. Anakwenze AND anor (1967) 2NMLR 140 at p. 143)

The Onus lies on the plaintiffs to satisfy the court that they are entitled on the evidence brought by them to a declaration of title. Examining the evidence adduced by the plaintiffs and their admission that the land in dispute was granted to the Tema people long before the 1934 action coupled with the admission by the two principal witnesses called by the plaintiff that the Native court action was over this very Iga-piri” ant that “Tema and Abalama people had gone to court over this land dispute.” I am unable to convince myself that a declaration of title can, with fiairness and properly, be granted to the plaintiffs.

The second defendant Chief Mathew Gogo Amaso who testified for the appellants stated at page 62 lines 11 to 15 as follows:-

” No other person had disputed this land with us except this very Abalama people in 1934, the dispute took us to the Native Court, we sued for trespass on our land, the suit was N.286/34 in the Kalabari Native court Exhibit B… . there was appeal in that suit by the plaintiffs as No. 4/35. Exhibit C.”

The learned trial judge, as I have earlier pointed, held that the issue in the Native Court cases in Exhibit B and C was not the same as the issue in the present suit.

It was the view of the learned trial judge because the issue in the Native Court present Suit was one of the trespasses, it could not be trespass, it could not be used as estopped per rem judicatam in the present suit where the claim is for declaration of title. I think the learned judge is wrong. The law is well settled that when dealing with proceeding in a Native court, the court is permitted to travel outside the claims as stated on the writ to the evidence in the case in order to discover the real subject-matter of the dispute and the claim of the plaintiffs. (See Nwosu v. Udeaja(1990) 1 NWLR (Pt.125) 188 at 211). In the native court suit No. 286/34 the plaintiffs sued the defendants for and on behalf of themselves and people of Abalama.The claims was for #50 damages for trespass. The parties in the native court case are the same as the parties in the present case. In the current case the plaintiffs and the defendants agreed that the land in the dispute in this case was the land in dispute in the native court case. This was the evidence of P.W.3 Kenneth Kaladumo who said as I have earlier reproduced that –

“I know that Tema and Abalama people had gone to court over this piece of land dispute “and “where Tema people have their burial is now the land in dispute.”

In the native court proceedings Exhibit B the Tema people claimed ownership of the land in dispute. The findings of the native court in suit No. 286/34 were as follows:-

“In view of the Statements and evidences represented the plaintiffs claim is justified under the following reasons:-

That considering the position of the bush or the land in dispute, there is no doubt that the defendants are aware of the plaintiffs using there as their cemetery (?)

That if ever the defendants’ ancestors gave the land to plaintiffs’ ancestors for burial purposes for over fifty years, the plaintiffs are justified to sue defendants for trespass on the land in cutting and feeling trees on their graves. The defendants have more right on the land.

That according to plaintiffs’ statement, Amachree IV gave them piece of land in dispute the defendants must have to consult with or take permission from plaintiffs before doing any work on the land.

That the land (cemetery) in dispute should remain entirely for the plaintiffs.

Defendants stated to have given it to plaintiffs long years ago. Under the above circumstances we enter judgment for the plaintiffs.”

On 20th February 1935 when the matter went before the District Officer on review. The District Officer V.C.M. Kesley stated

as follows.”

“I do not propose to interfere:

The court decision appears sound.”

On the 18 June 1936, the appeal to the District Officer’s Court was dismissed. The learned counsel for the respondent submitted in the respondents’ brief that since the cause of action was trespass in the native court suit, all that the Appellants were required to prove was possession. Learned counsel further submitted that title to the land or ownership of the land was not in issue in Exhibit B and C.

I am of the view that the submission overlooks the settled law that in dealing with the proceedings of the Kalabari Native Court, the High court and this court are both permitted to look at the evidence in the case in order to discover what was the real cause of action. The claim was for #50 damages for trespass but that claim was based on the claim of ownership of the land in dispute by the people of Tema. The findings of the Kalabari Native Court acknowledged the Tema people’s claim that the land was granted to them by King Amachree IV. On that principle of ownership the Native court found that the claim for damages was justified. I am of the opinion that the appellants successfully established the plea of estoppel per rem judicatam against the respondents based upon the following fact namely-

Although no plan of the land in dispute in the native court Proceeding was tendered in the current proceedings. The plaintiffs in the present case admitted that the land I dispute in the native court case is land in dispute in the case.

The cause of action in the native court case was the ownership of the land in dispute and the trespass committed by the Abalama people (the plaintiff in the suit) and the case of action in the presence case is title to the land in dispute

The parties in the native court case are the same as the parties in the present case.

It has been held that it is not in doubt that before the doctrine of estoppel per rem judicatam can operate it must be show that the pretties issue. And subject matters were the same in the previous action as those in the action in which the plea is raised (See Alashe v. Olori Ilu (1964) All NLR 390at 394). Now if the cause of action in the instant suit had been determined in the native court suit. It has merged in the judgement: transit in rem judicatam. It has been settle that it is an be vaxed twice for one and the same cause on the same issues. (Nemo debit his vaxariuna et cadem causa) (See Adomba AND Ors v. Odiese AND Ors (1990) 1 NWLR(pt. 125) 165 at 178 D-E).

Throughout the review of evidence of the respondents’ principal witness, the learned trial judge did not advert his mind to the admission by P.W. 3 Kenneth Kaladumo that-

“I know that Tema and Abalama people had gone to court over this piece of land in dispute”.

And-

“Where Tema people have their burials is not the land dispute where Tema people buried was allowed them by the Abalama people”

Neither did the learned trial judge consider the admission from P.W.2 Chief Christopher Thompson during cross-examination that

“We gave part of the Island near Sonimabila Mini creek to the defendants to bury their dead. We have never disputed this piece of land with the defendants before the dispute. We had had (?) was one of trespass in 1934 in the Native Court, over this very Iga-piri; all the time we have been saying this land is our own. Yes we allowed the Tema people to use it as a cemetery… . By custom the Amanyanabo of Kalabari own (?) all lands creeks in the Kalabari area and it is that gives them out”.

These pieces of evidence from the two key witnesses are irreconcilably in conflict with the respondents ‘ case that the land granted to the appellants for the burial of their community and the burrow pit are two distinct and separate piece of land. It behooves the learned trial judge to resolve the conflict one way of the other. As the evidence stood they support the case of the appellants that they had their graves. In such a situation the appellants are entitled to rely on the portion of respondents’ evidence that the land in dispute in the present proceedings was the land in dispute in the previous suit. It follows in my view that upon such an admission it becomes unnecessary to produce a plan of the land in the previous suit to establish that the same land is in dispute in the two actions.

In Akinola AND ors v. Oluwo AND ors (1962) 1 All NLR 224; (1962) 1 SCNLR 352, the Supreme Court held that the plaintiff succeed on the strength of his own case and not on the weakness of the defendants ‘ case but subject to the important point that the defendants ‘ case may itself support the plaintiff’s case and contain evidence on which the plaintiff is entitled to the rely. I am of the view that by analogy the case of AKINOLA v. OLUWO can be applied to the instant case. While it is the law that the onus is on the defendant who pleads estoppel rem judicatam to prove all the essential ingredient is entitle to rely on the admission by the plaintiff that the land in dispute in the present suit was same as the land litigated upon in the previous suit.

That is conclusion which the learned trial judge ought to have reached if he had considered the evidence of the two principal witnesses called by respondents. I find support for my opinion in the dictum of Oputa, the learned justice of the Supreme Court Stated thus-

” As a plaintiff is entitled to make use of any evidence from the defendant which support his case so also a defendant is entitled to make use of any evidence even that as in this case, extracted from cross-examination of the plaintiff ‘s witness to support his case.”

The learned trial rejected the defence of estoppel rem judicatam mainly on the basis that the claim in native court case was for trespass and that the claim for trespass is not dependent on the claim for declaration of title. The learned trial judge relied for the proposition on the case of Oluwi v. Eniola (1967) 1NMLR 399. That case, with respect, does not apply to the present case.

The case of Oluwi decided that in a claim for declaration of title, damages for trespass and injunction, where the claim for declaration of title fails, the claim for trespass may not necessarily fail as the issue to be determined is whether the plaintiff had established his actual possession of the land and the defendant ‘s trespass on it. In my opinion the learned trial judge took a very narrow view of the native court judgments, Exhibits B and C. It is well established that when considering native court proceeding, it is the substances and not the mere form that matters. This point was well illustrated by the West Africa Court of Appeal in Akyin v. Egymah (1936)3 WACA 65 citing with approval the dictum of Smyly,C.J. at page 66 where the Chief Justice said-

“Personally I do not lay any stress on the form in which the action is brought before the Native Tribunal so long as the issue involved is clear.”

(See also Mate Nono per Tetter Okuma v. Tsutsu (1944) 10WACA 89,90;Udeze AND ors v. Chidebe(1990) 1NWLR (Pt.145)141 at 155)

The principle has also been settled that the plea of res judicatam applies not only to points upon which the court was actually required by the parties to form an opinion and pronounce judgement, but to every point which properly belonged to the subject of litigation and which the parties exercises reasonable diligence, might have brought forward at the time.

(See Henderson v. Henderson (1843) 3 Hare, 100 at page 114). As I have earlier pointed out, the issue before the Native Court in suit No. 286/34 was not merely one of trespass; both parties claimed ownership of the land in dispute and the Native Court having established that the land belonged to the present appellants gave judgment in their favour for damages for trespass.

From the facts of the Native Court actions there was certainly a presumption of ownership in favuor of the appellants who were in long and undisturbed possession of the land in dispute. This was clearly illustrated in the findings of the Native Court.

Before the doctrine of estoppel per rem juducatam can operate, it must be shown that the parties, the subject matter and the issue were the same in the previous case as those in the action in which the plea of res judicata is raised. It seems perfectly clear to me that from the analysis of the facts of this case the appellants have succeeded in proving all the essential ingredients of the plea. (See Nwaneri AND ors v. Oriuwa 7ors (1959) 4FSC 132; (1959) SCNLR 316, Cooker AND anor v. Sanyaolu (1976) 9- 10S.C.203).

The respondents are therefore estopped per rem judicatam from re-litigating the present action in suit number DHC/5/79 before the Degema High Court.

I now go to deal with the issue number 3 which relates to grounds 6,7,8 and 9 of the original grounds of appeal and ground 3 of the additional grounds of appeal.

Learned Senior Advocate submitted that the learned trial judge did not weigh the case of the parties on that imaginary scale as enunciated in Mogaji AND ors v. Odofin AND ors (1978) 4S.C. 93; (1978) 1 Law Report of Nigeria 212,213. He submitted that the learned trial judge did not evaluate the traditional evidence adduced by the parties. Counsel submitted that the respondents pleaded grant of the land in dispute to their community by the Amanyanabo of Kalabari but they did not call any evidence in support except the ipse dixit of the second respondent. In paragraph 6(ii) of the statement of Claim the respondents averred as follows:-

“6. The traditional history of the land shows that the plaintiffs (Abalama Community) had been owners in peaceful possession of the said land now in dispute from time immemorial and the traditional history of the plaintiffs’ ownership and possession of the said land is further stated in the following succeeding paragraph of this statement of claim.”

“(ii) It is popular maxim or saying that all land and sea belong to King Amachree.”

Chief Christopher Thompson P.W.2 testified-in-Chief at page 53 lines 22-24 of the record as follows-

“King Amachree IV was the head of Kalabari at that time. The Abalama people obtained the permission of Amachree IV to settle at that place.”

At page 56 lines 6 to 11 the witness testified under cross-examination as follows

“By custom the Amanyanabo of Kalabari own (Sic) all lands and creek in the Kalabari area and it is he that gives them out, it was the custom that when a Kalabari people (?) Discovers a settlement, they go to the Amanyanabo either at the old shipping to inform him before settling.”

It should be observed that apart from pleading the custom applicable in the grant of the land by the Amanyanabo, nowhere in the statement of claim did the respondents plead specifically that in accordance with the custom pleaded, the Amanyanabo granted the land in dispute or any land whatsoever to the Abalama Community. The principle which has been restated time and time again is that evidence of a party on a point which departs from his pleading goes to no issue. In the instant case, the evidence of P.W.2 that the Abalama people obtained the permission of Amanchree IV to settle on the land in dispute at Iga-piri and Iga creek went to no issue the facts not having been pleaded. (See Emegokwue v. Okadigbo (1973) 3S.C.

113 at 117: Ogunleye v. Oni (1990) 2NWLR (Pt.135) 745 at 767 para. C). The effect of the evidence given which goes to no issue is that although the respondents pleaded the custom, by which the Amanyanabo granted land to the Kalabari people, there is no averment of any grant of any land to Abalama people. There is therefore no proof of how they came to own Iga-piri and Iga creek. The law is well settled that if a person bases his tittle on a grant according to custom by a particular person, family or community, that party must go further to plead and prove the origin of that particular person, family or community unless that title has been admitted. But in the instant case the respondent did not plead any grant to them by king Amachree upon which they led evidence.( See Mogaji v. Cadbury (Nig.)Ltd.(1985) 2NWLR (Pt.7) 393 at 431;Elias Omobare (1982) 5S.C.25 at 57-58; Ogunleye v. Oni (1990)2NWLR (Pt.135) 745 at 783).

The appellants admitted in their statement of defense that by custom all land belong to King Amachree IV and he was the overlord who granted the land to Kalabari people. They denied however the traditional history pleaded in paragraph 6 that the Abalama people had been owners of the land in dispute in peaceful possession from time immemorial.

First, on the state of the pleadings learned trial judge would be precluded from finding that the Abalama Community have been owners of the land in dispute because such a finding would be at variance with their pleadings. When therefore the learned trial judge proceeded to find that-

“I accept and believe the evidence of the plaintiffs and that of their witness Kenneth Kaladumo that the whole land in dispute belongs to Abalama village Community,” (page 95 lines 10-13).

Such finding overlooks the basic rule that parties are bound by their pleadings and evidence which is in-fact adduced which is contrary to the plaintiff’s pleadings should never be admitted. As it has been stated many times, it makes no difference that the other side did not object to the evidence or that the judge did not reject it.

“It is of course, the duty of counsel to object to inadmissible evidence and the duty of the trial court any way to refuse to admit inadmissible evidence. But if not withstanding the evidence is still through oversight or otherwise admitted then it is the duty of the court when it comes to give judgement to treat the inadmissible evidence as if it had never been admitted.”

(See National Investment AND Properties Co. Ltd. v. The Thompson Organization AND 2 ors (1969) 1 A11 NLR 138 at 142/143;Ugor v. Obiekwe (1989) 1 NWLR (Pt.99) 566 at 583). I cannot therefore look at or accept the evidence of P.W.2 Chief Christopher Thompson, which on the record here runs contrary to the pleadings of the plaintiffs. It therefore follows that there was no evidence of any grant of the land in dispute to the respondents. There was also no basis for the grant of a declaration of a customary right of occupancy over the piece or parcel of land known as Iga-piri and Iga creek in favor of the respondents. It follows that if the respondents have no right of occupancy they cannot be paid the compensation of N4970.35 made by Guffanti Nigeria Limited. An injunction restraining the Tema Community will similarly be in appropriate.

In answer to the submission of learned Senior Advocate for the appellants counsel for the respondents submitted that the evidence on record proved the essential requirements enunciated in the case of Idundun v. Okumugba (1976) I NMLR 200.

Learned Counsel relied on first settlement by the respondents as pleaded in paragraph 6 ( i )-(v) but paragraph 6 (ii) avers the custom applicable to the grant of land to Kalabari people.

The evidence of Chief Christopher Thompson is at variance with the pleadings that the “Abalama came to their present settlement before King Amachree IV moved to the present Buguma. On arrival they met no one on the virgin forest land.” This averment gives the impression that the respondents settled on the land in dispute before Amachree IV became the paramount rulers of the Kalabari people. The evidence of the traditional ruler Christopher Thompson is completely at variance with the averment contained in paragraph 6(v) (a) of the statement of claim. He testified that at the time of their settlement “King Amachree IV was the Head of Kalabari at that time. The Abalama people obtained the permission of Amachree IV to settle at that place.”

This piece of evidence does not support the averment of an original settler, which the appellants denied in paragraph 4 inter alia as follows-

“The defendants deny particularly that the plaintiffs ever settled on the land in dispute or that the plaintiff traditionally informed King Amachree IV on their settlement thereon and therefore no other group was granted right of occupancy in respect of the said land in dispute.”

I must say that paragraph 4 and many others of the statement of defense portray the pleader as a poor draftsman. It starts with a denial of the respondents’ traditional history but then admitted the details of part of the traditional history but ending it with a specific denial of the traditional history. The paragraph and many others were drafted in such an inelegant manner and in most part in breach of the rules of pleadings.

The pleading, inelegant as it was drafted, conveyed to the respondents that the appellants expected them at the trial to prove the fact that they were the original settlers on the land in dispute as contained in paragraph 6 (v) (a)of their statement of claim that-

“Abalama came to their present settlement before King Amachree IV moved to the present Buguma. On arrival they met no one on the virgin forest land. They settled on one end of it and continued to farm and cut timbers and other wood for Canoe carving on the land.”

In as much as the evidence adduced by the respondents is completely at variance with the statement of claim reproduced above, the effect is that the respondents have failed to prove that they were the original settlers of the land in dispute by traditional history. The result of course is that their claim must be dismissed.

It only now remains question I which deals with the rejection in evidence of the arbitration proceedings. The learned trial judge rejected the arbitration proceedings on two grounds namely that the arbitration proceeding was not specifically pleaded in paragraph 10 of the statement of defense and that it was not certified. At page 33 at the end of paragraph 9 of the statement of defence, at lines 27-30 the defendants averred as follows-

“The proceedings of the arbitration panel will also be relied upon at the trial to show that it was rightly decided that the money should be paid to the defendants.”

The document although marked rejected does not form part of the record of appeal. It is therefore not possible to find out whether the document was certified or not. It is therefore impossible to find out whether the learned trial judge was right in rejecting the document on the ground that it was not certified. It is counsel’s duty to ensure that the record of appeal is a complete record. He cannot complain if a ground of appeal is not considered for he had the opportunity for settlement of record. This appeal has been entered in this court since March 27th, 1986 . If any part of the record is missing, it is counsel’s duty to have taken steps all these years to ensure that the lower court supplied whatever part of the record was missing. I am therefore unable to express any opinion on question 1 for determination without the Arbitration proceedings.

On the two questions that I have considered, that is, question 2 and 3 the appeal succeeds. The appeal is allowed. The judgement of Feberesima J in suit No.DHC/5/79 delivered on 12TH October 1983 is hereby set aside. In its place I dismiss the plaintiffs’ case with cost of N800.00in the court below. I award N600.00 as costs in this court in favour of the appellants to be paid by the respondents.

tiff in the suit) and the case of action in the presence case is title to the land in dispute

The parties in the native court case are the same as the parties in the present case.

It has been held that it is not in doubt that before the doctrine of estoppel per rem judicatam can operate it must be show that the pretties issue. And subject matters were the same in the previous action as those in the action in which the plea is raised

(See Alashe v. Olori Ilu (1964) All NLR 390at 394). Now if the cause of action in the instant suit had been determined in the native court suit. It has merged in the judgement: transit in rem judicatam. It has been settle that it is an be vaxed twice for one and the same cause on the same issues. (Nemo debit his vaxariuna et cadem causa) (See Adomba AND Ors v. Odiese AND Ors (1990) 1 NWLR(pt. 125) 165 at 178 D-E).

Throughout the review of evidence of the respondents’ principal witness, the learned trial judge did not advert his mind to the admission by P.W. 3 Kenneth Kaladumo that-

“I know that Tema and Abalama people had gone to court over this piece of land in dispute”.

And-

“Where Tema people have their burials is not the land dispute where Tema people buried was allowed them by the Abalama people”

Neither did the learned trial judge consider the admission from P.W.2 Chief Christopher Thompson during cross-examination that

“We gave part of the Island near Sonimabila Mini creek to the defendants to bury their dead. We have never disputed this piece of land with the defendants before the dispute. We had had (?) was one of trespass in 1934 in the Native Court, over this very Iga-piri; all the time we have been saying this land is our own. Yes we allowed the Tema people to use it as a cemetery… . By custom the Amanyanabo of Kalabari own (?) all lands creeks in the Kalabari area and it is that gives them out”.

These pieces of evidence from the two key witnesses are irreconcilably in conflict with the respondents ‘ case that the land granted to the appellants for the burial of their community and the burrow pit are two distinct and separate piece of land. It behooves the learned trial judge to resolve the conflict one way of the other. As the evidence stood they support the case of the appellants that they had their graves. In such a situation the appellants are entitled to rely on the portion of respondents’ evidence that the land in dispute in the present proceedings was the land in dispute in the previous suit. It follows in my view that upon such an admission it becomes unnecessary to produce a plan of the land in the previous suit to establish that the same land is in dispute in the two actions.

In Akinola AND ors v. Oluwo AND ors (1962) 1 All NLR 224; (1962) 1 SCNLR 352, the Supreme Court held that the plaintiff succeed on the strength of his own case and not on the weakness of the defendants ‘ case but subject to the important point that the defendants ‘ case may itself support the plaintiff’s case and contain evidence on which the plaintiff is entitled to the rely. I am of the view that by analogy the case of AKINOLA v. OLUWO can be applied to the instant case. While it is the law that the onus is on the defendant who pleads estoppel rem judicatam to prove all the essential ingredient is entitle to rely on the admission by the plaintiff that the land in dispute in the present suit was same as the land litigated upon in the previous suit.

That is conclusion which the learned trial judge ought to have reached if he had considered the evidence of the two principal witnesses called by respondents. I find support for my opinion in the dictum of Oputa, the learned justice of the Supreme Court Stated thus-

” As a plaintiff is entitled to make use of any evidence from the defendant which support his case so also a defendant is entitled to make use of any evidence even that as in this case, extracted from cross-examination of the plaintiff ’s witness to support his case.”

The learned trial rejected the defence of estoppel rem judicatam mainly on the basis that the claim in native court case was for trespass and that the claim for trespass is not dependent on the claim for declaration of title. The learned trial judge relied for the proposition on the case of Oluwi v. Eniola (1967) 1NMLR 399. That case, with respect, does not apply to the present case.

The case of Oluwi decided that in a claim for declaration of title, damages for trespass and injunction, where the claim for declaration of title fails, the claim for trespass may not necessarily fail as the issue to be determined is whether the plaintiff had established his actual possession of the land and the defendant ’s trespass on it. In my opinion the learned trial judge took a very narrow view of the native court judgments, Exhibits B and C. It is well established that when considering native court proceeding, it is the substances and not the mere form that matters. This point was well illustrated by the West Africa Court of Appeal in Akyin v. Egymah (1936)3 WACA 65 citing with approval the dictum of Smyly,C.J. at page 66 where the Chief Justice said-

“Personally I do not lay any stress on the form in which the action is brought before the Native Tribunal so long as the issue involved is clear.”

(See also Mate Nono per Tetter Okuma v. Tsutsu (1944) 10WACA 89,90;Udeze AND ors v. Chidebe(1990) 1NWLR (Pt.145)141 at 155)

The principle has also been settled that the plea of res judicatam applies not only to points upon which the court was actually required by the parties to form an opinion and pronounce judgement, but to every point which properly belonged to the subject of litigation and which the parties exercises reasonable diligence, might have brought forward at the time.

(See Henderson v. Henderson (1843) 3 Hare, 100 at page 114). As I have earlier pointed out, the issue before the Native Court in suit No. 286/34 was not merely one of trespass; both parties claimed ownership of the land in dispute and the Native Court having established that the land belonged to the present appellants gave judgment in their favour for damages for trespass.

From the facts of the Native Court actions there was certainly a presumption of ownership in favuor of the appellants who were in long and undisturbed possession of the land in dispute. This was clearly illustrated in the findings of the Native Court.

Before the doctrine of estoppel per rem juducatam can operate, it must be shown that the parties, the subject matter and the issue were the same in the previous case as those in the action in which the plea of res judicata is raised. It seems perfectly clear to me that from the analysis of the facts of this case the appellants have succeeded in proving all the essential ingredients of the plea. (See Nwaneri AND ors v. Oriuwa 7ors (1959) 4FSC 132; (1959) SCNLR 316, Cooker AND anor v. Sanyaolu (1976) 9-10S.C.203).