Declaration-Title to land-Appeal-Almost at the end of the case plaintiffs' Counsel raising estoppel per rem judicatam-Settlement by most senior member of family-No opportunity given to the Counsel on the other side to reply-Trial magistrate upholding submission on the ground that the settlement was arbitration which created estoppel per rem judicatam between the parties-Trial judge on appeal setting aside judgment of trial magistrate and non-suiting plaintiff-Whether trial Judge was right in holding that the settlement did not constitute a judicial decision.

Appeal from the High Court (Mid-West).

HELD:

(1)     The judge on appeal was right in holding that on the evidence, the Diokpa meetings did not pronounce a judicial decision. All they did was to appeal to the plaintiffs to overlook and forego the encroachments on their land. Estoppel per rem judicatam was not established on the evidence.

(2)     The judge on appeal was in error in giving decision on grounds of appeal which were neither before him nor argued by the parties concerned. Having decided to allow the appeal on the ground that the issues were not res judicata, he ought to have sent the case back to the Chief Magistrate to deal with the remaining grounds of appeal, which, though argued before him, were not considered and determined by him owing to his decision that the matter was res judicata.

Appeal allowed: judgment of High Court set aside: case sent back to chief magistrate for appeal to be heard.

APPEAL from the High Court (Mid-West).

Ohen for the plaintiffs/appellants.

Iyare for the defendants/respondents.

Udoma, J.S.C. (delivering the judgment of the court)-In the Asaba Grade B Customary Court Suit No. 275/65, the plaintiffs/appellants, Nwokolo Oliko and Okonkwo Ibonye for themselves and on behalf of the family of Ogbeamei. Umuagu, Asaba (hereinafter to be referred to as the plaintiffs) sued the defendants/respondents, Ofili Okonkwo, Okocha Ogbotobo and Obi Azana Izegbu for themselves and on behalf of the family of Ogbonishe, Umuagu, Asaba (hereinafter to be referred to as the defendants). The claim was for:-

"(i) Declaration of 'title' to pieces and parcels of land known as and called 'Ububangwulor' and 'Ohuiyi'.

(ii) £100 general damages for trespass on the said land.

(iii) Injunction to restrain the defendants, their agents and or servants from trespassing further unto the said plaintiffs' land."

After due hearing, the customary court entered judgment for the plaintiffs, granted the declaration of title and the injunction sought and awarded the plaintiffs £70 damages for trespass, with costs. The defendants appealed against the judgment on several grounds to the Chief Magistrate, Asaba. At the hearing before the Chief Magistrate, the grounds filed were exhaustively argued on behalf of the defendants, therein appellants, and equally exhaustively on behalf of the plaintiffs, therein respondents, when suddenly and as an after-thought at the tail end of his submissions in reply to arguments on behalf of the defendants, Counsel for the plaintiffs took the somewhat unusual course of raising for the first time and arguing on behalf of the plaintiffs the issue of estoppel per rem judicatam based on a purported settlement of the dispute before the Diokpa-the most senior and oldest member of Umuagu family to which both parties belong.

On taking the point, Counsel submitted that on the facts disclosed on the face of the record of proceedings in the customary court, the issues in controversy between the parties had already been adjudicated upon at meetings held at the palace of the Diokpa on the complaints of the plaintiffs; and that the appeal should be dismissed on the ground that the issues were res judicata. At this juncture, we pause to note that it is nowhere recorded in the proceedings before the learned Chief Magistrate that opportunity was afforded Counsel for the defendants to reply to that submission and what that reply, if any, was or that the defendants declined to make a reply.

The learned Chief Magistrate in a reserved judgment upheld the submission on the issue of res judicata and dismissed the appeal. In dismissing the appeal the learned Chief Magistrate said:-

"I am of the opinion that the plaintiffs/respondents have raised in their evidence and established the necessary elements of estoppel per rem judicatam and that the defendants/appellants are estopped from further questioning the right of the plaintiffs/respondents to the areas of the land where the trespass was alleged to have taken place.

It now becomes unnecessary for me to examine in detail the other grounds of appeal filed and argued."

An appeal to the High Court of the Mid-Western State (Arthur Prest, J.) against the judgment succeeded on the only ground of appeal filed and argued, namely, the ground that the learned Chief Magistrate was wrong in law in holding that-

"The meetings for a settlement convened by the Diokpa in 1964, 1965 were arbitrations which had created estoppel per rem judicatam between the parties."

The appeal was allowed. The judgments of both the Chief Magistrate and the Asaba Grade B customary court were set aside and the plaintiffs nonsuited.

This appeal is against the judgment of the learned judge on appeal. It is by the plaintiffs, who have complained that the learned judge on appeal was wrong in law-

(i) To hold that estoppel per rem judicatam was not established on the evidence before the Asaba Grade B customary court having regard to the views expressed by him to the effect that the Diokpa meeting was a judicial tribunal which was competent to adjudicate upon the issues in controversy between the parties, the said issues being the same as those adjudicated upon by the Asaba Grade B customary court and the Chief Magistrate. And

(ii) To go into the grounds of appeal which were argued before but not dealt with by the learned Chief Magistrate, the said grounds not having been argued before the learned judge on appeal.

In respect of the 1st ground of appeal, Mr Ohen, Counsel for the plaintiffs submitted that on the face of the record of proceedings in the Asaba Grade B customary court, the meetings which were held in 1964 and 1965 at the instance of the plaintiffs before the Diokpa of Umuagu family of which the plaintiffs and the defendants are members had decided that the pieces or parcels of land known as and called Ububangwulor and Ohuiyi then in dispute were the property of the plaintiffs, the boundaries separating the said land from the land of the defendants being Ububangwulor; and that that being so, the learned judge on appeal was wrong in law to hold that the issues between the parties were not res judicata.

There is no substance in this submission. We are satisfied that the learned judge on appeal was right in holding that on the evidence, the Diokpa meetings did not pronounce a judicial decision. All they did was to appeal to the plaintiffs to overlook and forego the encroachments on their land. That estoppel per rem judicatam was not established on the evidence was made clear by the finding of the Asaba Grade B customary court when it said:-

"The meetings at Diokpa's house was a makeshift and could not be said to be a settlement."

This ground of appeal must therefore fail.

We turn now to consider the 2nd ground of appeal. Counsel contended on the 2nd ground of appeal that as there was only one ground of appeal argued before the learned judge on appeal and that ground related only to the issue of res judicata, it was incompetent for the learned judge to have proceeded to consider and pronounce upon grounds of appeal argued before the learned Chief Magistrate but not considered or pronounced upon by the said learned Chief Magistrate and not argued before the learned judge. It was further submitted that the learned judge on appeal was wrong in law to have considered and given decisions on grounds of appeal which were never before him at all and on which neither party to the proceedings was heard by him.

It was admitted by Mr Iyare, Counsel for the defendants and, we think rightly, that the only ground of appeal before the learned judge and which was argued by Counsel for both parties concerned the issue of res judicata and that the learned Chief Magistrate had considered it unnecessary to deal with the remaining grounds of appeal which had been fully argued before him. On this point the learned judge on appeal in the course of his judgment said:-

"The learned Chief Magistrate after careful consideration decided that the matter was res judicata and dismissed the appeal. He did not find it necessary to consider the other grounds of appeal argued by learned Counsel for the appellant excepting as regarded the costs which the court awarded to itself and which he rightly set aside."

And later he said:-

"I am of the opinion therefore that the defence of res judicata by way of estoppel was not established and that the learned Chief Magistrate was wrong in law in holding that it was. That being so, I think the learned Chief Magistrate erred in law also in not deciding the other grounds of misdirection in law argued by learned Counsel for the appellants," etc.

In view of the foregoing, we are of the opinion that the learned judge on appeal was in error in giving decision on grounds of appeal which were neither before him nor argued by the parties concerned. On his showing the learned judge, having decided to allow the appeal on the ground that the issues were not res judicata, ought to have sent the case back to the Chief Magistrate to deal with the remaining grounds of appeal, which, though argued before him, were not considered and determined by him owing to his decision that the matter was res judicata.

This appeal succeeds and it is allowed. The judgment of the High Court, Asaba, in appeal No. A/1A/67 nonsuiting the plaintiffs is hereby set aside. It is ordered that subject to our decision on the issue of res judicata, affirming the decision of the High Court, namely, that the decision of the meetings held at the Diokpa's house did not constitute res judicata, the case be and it is hereby sent back to the Chief Magistrate's Court with the direction that the appeal be there heard and determined on the other grounds of appeal still pending decision in the said Chief Magistrate's Court. The plaintiffs are entitled to their costs in this Court assessed and fixed at 135 guineas. The defendants are also entitled to the costs awarded them in the High Court. Costs in the Chief Magistrate's Court to abide the event. Order accordingly.