IN THE SUPREME COURT OF NIGERIA HOLDEN AT ABUJA
ON FRIDAY, JUNE 14, 2010
BEFORE THEIR LORDSHIPS
NIKI TOBI, WALTER SAMUEL NKANU ONNOGHEN, IKECHI FRANCIS OGBUAGU,  JOHN AFOLABI FABIYI, OLUFUNLOLA OYELOLA ADEKEYE Justices of the Supreme Court
BETWEEN:
AUGUSTINE OBINECHE & 5 OTHERS (For themselves and as representatives of the Umuabor Community of Dikenafai  in Ideato South LGA of Imo State)—— DEFENDANTS/APPELLANTS
AND:
HUMPHREY AKUSOBI & 6 OTHERS (For themselves and as representatives of the Umuchoke Community of Dikenafai in the Ideato  South LGA of Imo State) — PLAINTIFFS/RESPONDENTS
COUNSELS IN THE MATTER:
MR. J.  EGWUONWU FOR THE APPELLANTS
MR. N.  NWOKOCHA-AHAAIWE FOR THE RESPONDENTS

LEAD JUDGMENT BY JUSTICE OLUFUNLOLA ADEKEYE

The Supreme Court therefore held that the appellants had failed to join issues on the facts of substance raised by the respondents regarding the 1952 judgment in their favor.

The Supreme Court also held that they were satisfied with the evidence of the PW 11, the Surveyor-General of Imo State to the effect that the land in dispute in the present case forms part of the larger area of land in dispute in the 1952 case as shown by the composite plans tendered by the Surveyor-General.

The Supreme Court agreed totally with the submissions of Mr. Nnamdi Nwokocha-Ahaaiwe, Esq, learned Counsel to the respondent Umuchoke Community, that the appellants could not raise the issue of admissibility of the composite plan for the first time at the Supreme Court when they did not first obtain leave to do so. This was in reaction to the submissions of the appellants who had challenged the decision of the Court of Appeal on the ground, inter alia, that the respondents as plaintiffs at the trial High Court had not pleaded the composite plan in their amended Statement of Claim.

They contended that the composite plan was inadmissible in evidence having not been pleaded and should be expunged from the records. However, learned Counsel for the respondents, Nnamdi Nwokocha-Ahaaiwe, Esq. submitted that at the trial High Court, the composite plan had been tendered with the leave of court granted through a Motion on notice to the appellants and the appellants had said they were not opposing and did not oppose admissibility of said document as borne out by the records.

The learned Counsel also pointed out to the Supreme Court that the admissibility or otherwise of the composite plan was not one of the grounds of appeal before the Court of Appeal, Port Harcourt Division and was therefore not an issue before that lower court.

Equally, the learned Counsel also pointed out that none of the grounds of the appeal to the Supreme Court raised any issue as to the admissibility or otherwise of the composite plan, which was not an issue before the two lower courts and in respect of which the appellants did not seek nor obtain leave to raise for the first time at the Supreme Court. The appellants only raised the issue of the unpleaded composite plan for the first time in their Brief of argument. The Supreme Court agreed totally with Mr. Ahaaiwe on ruling in favor of the respondents on this point.

3.  One key issue which then confronted the Supreme Court was whether the appellants could be bound by the 1952 judgment when they were not parties to that suit and did not have an opportunity to be heard. That earlier dispute was between the respondents’ Umuchoke Community and Nkahu Community.

The learned Counsel to the respondents, Mr. Nnamdi Nwokocha_Ahaaiwe, Esq., had in his submissions to the Supreme Court conceded that ordinarily a party could not be bound by a decision in respect of an action in which he was not a party and had no opportunity to be heard. But the learned Counsel said this general rule admits of an important exception, which is encapsulated in the doctrine of “standing by”. The learned Counsel relied on two cases, among others, the first being the case of MANA ABUAKWA V. MANA ADANSE (1957) 3 ALL ER, 559, where the Privy Council had re_stated the rule as to estoppel by conduct and held that a party who knew of, but took no part in previous proceedings is bound by the decision in those proceedings. Learned Counsel also cited the case of OKE & ANOR. V. ATOLOYE & ORS. (1986) NSCC, VOL. 17, PT. 1, 165 where the Supreme Court of Nigeria, per Nnamani, J.S.C held that:

“It is trite law that estoppel stretches beyond estoppel per rems judication to estoppel in pais, estoppel by deed, estoppel by negligence, etc. More relevant to the present proceedings is estoppel by conduct. Again, and perhaps even more relevant to the present proceedings, if a party stands by and allows another to fight his battle in a litigation which touches on his interests, he cannot be heard later on to complain”.

The Supreme Court held that since the appellants themselves had pleaded and gave evidence that from 1944 to the present day, they were in occupation and possession of the lands in dispute, there was no way they could not have known of the dispute between the respondent’s Umuchoke Community and the Nkahu Community over the same lands between 1947 to 1952. Since they knew of the said dispute or are deemed to have known and chose to do nothing when they could have inter_pleaded their own title in that earlier dispute, they are caught up by the principle of estoppel by conduct or standing by and can no longer challenge the title to the lands in dispute established in favor of the respondent Umuchoke Community by the 1952 judgment. According to Justice Adekeye, J.S.C.:

“The appellants cannot fold their arms and allow members of Umuchoke family to fight their battle against members of Nkahu family and now turn round to take benefit of the situation”.

4. The Supreme Court having held that the Court of Appeal was correct to have concluded in the prevailing circumstances that the respondents had already proved their title to the land in dispute in the 1947_1952 litigation, held that it was therefore unnecessary to consider traditional history in proof of same title and any defect, omission or errors in proof of such traditional history by the respondents at the trial court is irrelevant.

5. On the basis of the foregoing, among others, the Supreme Court dismissed the appeal, affirmed the judgment of the Court of Appeal, Port Harcourt Division, reversed and set aside the decision of the High Court, entered judgment for the respondents in terms of their amended Statement of Claim and dismissed the appellants Counter_Claim before the trial High Court.

NOTE: The last has not been heard of the matter because many members of Umuabor Community have over the years established multi_million naira houses, mansions, and other property on the lands in dispute, meaning the Umuchoke community in whose favor the Supreme Court has decreed title to the lands in dispute, will soon start evictions of those from Umuabor Community now in unlawful possession and occupation of their lands and demolition of their structures and properties on it.