ANAZODO NWOSU V. CHUKWUMANJO UDEAJA

• Pages: 144-169

144

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NIGERIAN SUPREME COURT CASES

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[1990] 1 N.S.C.C.

ANAZODO NWOSU V. CHUKWUMANJO UDEAJA

5

ANAZODO NWOSU

V

CHUKWUMANJO UDEAJA

SUPREME COURT OF NIGERIA

UWAIS,

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J.S.C.

BELGORE,

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J.S.C.

AGBAJE,

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J.S.C.

NNAEMEKA-AGU, J.S.C.

WALT,

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J.S.C.

26th January, 1990.

APPELLANT

RESPONDENT

SUIT NO. SC 15

4

/

1

987

10

15

Land Law - Declaration of title - Proof of - Survey plan - Preparation by grantee in the

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absence of grantor - Value of plan - Sale of land under native law and custom -

Requirement.

Estoppel - Per rem judicatam - Essence of - Effect of fraud on estoppel - Estoppel by

"standing by" - When applicable - Different classes of privies.

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Evidence - Admissibility - Documents duly admitted in evidence by trial court and later

expunged from judgment - whether proper - Survey plan - Evidential value.

Practice and Procedure - Appeals - Issues for determination - Need to arise from grounds

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of appeal.

Words and Phrases - "Privies" - "Privity" - Meaning of

ISSUES:

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1.

What must a plaintiff prove in order to succeed in a claim for declaration of title

based on sale under native law.

2.

How is title to land under native law and custom proved and who bears the onus

of proof where identity of the land is not certain.

3.

Whether a plan of a piece of land, the subject of a grant, which was prepared by 40

the grantee after the death of the grantor some time subsequent to the grant is

of any evidential value.

4.

What is the essence of the doctrine of estoppel

per rem judicatam.

5.

Who are those who can be regarded as privies for the doctrine of estoppel to

operate.

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6.

What is the effect of fraud on a plea of estoppel.

7.

When does the principle of estoppel by "standing by" apply in a case.

8.

Whether a trial judge can review his earlier decision on certain documents already

tendered and admitted in evidence.

9.

How should an appellate court treat the decision of a native court.

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10.On whom lies the onus of proving that a party in possession has divested himself

of the ownership of land.

FACTS:

The appellant as plaintiff brought an action against the defendant/respondent in

an Nnewi High Court claiming a declaration of title to land, damages for trespass

and perpetual injunction to restrain the defendants/respondent.

ANAZODO NWOSU V. CHUKWUMANJO UDEAJA

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145

It was common ground that the land was originally that of the respondent's father.

The main issues in the High Court were whether the plaintiff's father, as evidenced

by a memorandum dated the 31st March 1928 (Exh.A) purchased the land in dispute

from the defendant's father according to custom.

The learned trial Judge entered judgment for the plaintiff but held further that the

plaintiff land was limited to a certain area and not the whole of the land in dispute.

The plaintiff not entirely satisfied with the decision of the learned trial Judge

appealed to the Court of Appeal contending

inter alia

that on the admissible oral and

documentary evidence before the trial court, he was entitled to judgment in terms

of his claim to the whole land in dispute.

The Court of Appeal rejected the contention of the appellant and affirmed the

judgment of the trial court.

The appellant further appealed to the Supreme Court contending in the main that

on the totality of the evidence before the trial court, that the appellant had proved

title to the whole of the land in dispute as a result of sale thereof to his father by the

respondent's father, its admitted owner.

HELD:

1. That in order to prove sale of land under native law and custom a plaintiff must

prove not only the payment of the purchase price but also the fact that the land

in question was handed over in the presence of witnesses.

2. There are five ways of proving title, namely:

(i)

By traditional evidence.

(ii)

By production of a document of grant or title.

(iii)

By proving acts of possession and ownership extending over a sufficient

length of time and are numerous and positive enough to warrant the inference

that the plaintiff is an exclusive owner.

(iv)

By proving acts of land possession and enjoyment of the land; but this only

raises a presumption of ownership.

(v)

By proof of possession of connected or adjacent land in circumstances which

make it probable that the owner of such adjacent or connected land is

probably the owner of the land in dispute.

Each of the above methods will suffice independent of the others to prove the

title.

So, in a case like this in which the appellant's case was based on ownership by

grant, it is a misdirection to insist additionally that he had also to prove acts of

ownership extending over a long time and numerous and positive enough to

warrant the inference that he was an exclusive owner. It is enough if he proves

the grants.

3. On a declaration of title to land where the memorandum of the transaction of sale

under Native law and Custom was ,silent as to the name and description of the

land to which it referred the onus of proving the identity of the land in dispute is

on the plaintiff.

4. The doctrine of

estoppel per rem judicatam

is a product of adversary system of

litigation as practiced in Nigeria. The essence of the doctrine is that between the

opposed parties, an issue, once litigated, should be regarded as for ever decided.

This doctrine requires that identical questions must be involved both in the

present suit between the same parties or their privies and the former suit.

5. There are three classes of privies namely:

(a)

Privies in blood, such as ancesto' and heir.

(b)

Privies in law, such as testator and executor, intestate and administrator.

(c)

Privies in estate, such as testator and devisee, vendor and purchaser, lessor

and lessee or assignor and assignee.

Thus in a plea of estoppel

per rem judicatam

founded on previous judgment, it is

not only the acts of the parties, their parents and relatives that bind in such a case,

the acts of privies also bind.