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20TH JUNE, 1969

SUIT NO. S.C. 630/1966

3PLR/1966/5  (SC)








Molajo – for the Plaintiffs/Appellants

Akinrele – for the Defendant/Respondent



Civil Action – Practice and Procedure – Action for declaration of title after time when existing court order, not appealed against, prohibited it – Should have been struck out and not declared on merits.




In Suit IK/115/63 in the Ikeja High Court the plaintiffs writ filed on the 31st May, 1963, read:-


“The plaintiffs’ claim against the defendant


(i)      A declaration that the Eyisha family are the absolute owners under native law and custom of all that piece or parcel of land situate off the Lagos-Ikorodu road within the jurisdiction of this Honourable Court. A plan of the said land will be filed in suit.


(ii)     Possession of the said land now unlawfully occupied by the defendant in spite of the several warnings of the plaintiffs against such occupation”.


On the 29th of April, 1965, Fakayode, J., dismissed these claims on their merits with 122 guineas costs. Against that decision the plaintiffs have appealed to this Court.


One ground of appeal has been argued before us namely:-


“The learned trial judge erred in law in continuing to assume jurisdiction to determine the case on its merits after he had ruled that the action was not properly brought in view of an order of court made in a previous case between the parties”.

This arose because in paragraph 7 of the statement of defence the defendant pleaded:-


‘The defendant will also contend that in view of the High Court order in A. B. 16/56 Adamo Akinwunmi v. A. Oludipe the plaintiffs cannot bring this action”.


The plaintiffs filed a reply relying on estoppel by reason of a number of other judgments but did not deal at all with the judgment pleaded in paragraph 7 of the statement of defence to which we have referred. No preliminary objection was taken in the High Court to that Court hearing the matter but in the course of the hearing the 2nd d.w. tendered without objection as exhibit ‘O’ the proceedings and judgment in Suit AB/ 16/56 in the Ikeja High Court which was between the same parties in respect of the same land as the present action, and there the judgment of Taylor, J., as he then was, on the 19th of May, 1958 read:-


“On the 14th November, 1956 I ordered the plaintiffs to file a statement of claim and plan within 90 days. Such a statement of claim was filed on the 22nd January, 1957 but without a plan and paragraph 8 of same states that such a plan will be filed in this action. Today and tomorrow are fixed for the hearing of this case and no plan is as yet made by the plaintiffs nor is there any application properly before me for extension of time within which such a plan should be prepared…. and filed. Mr. Somolu has shown that an earlier suit exhibit A filed in 1955 and in respect of which the same parties filed a plan was struck out being filed in the wrong division. Now the plan could have been utilised by the plaintiffs in this action for the parties are the same. All that the plaintiffs needed to do was to get the plan countersigned by the Director of Surveys. Even that was not done. I do not want to bar the plaintiffs right to come again if they felt that they have a good claim and do therefore strike out the plaintiffs claim with costs assessed at 50 guineas to the defendant and by virtue of Order 2, rule 12 (Cap 205) of the Sheriffs and Enforcements of Judgments and Orders I further order as follows:-


  1. That the above costs be paid before the plaintiffs exercise their rights of instituting another action.


  1. That in order that the defendant may not be left in the dark as to the title to his land by the plaintiffs not instituting this action for a long period of time, I do order that such costs and action be paid and instituted on or by the 31st day of July, 1958″.


Fakayode, J., referred to this point inter alia in his judgment when he said:-


“In paragraphs 4 and 7 of the statement of defence the defendant pleads the binding effects on the parties of Suits 113/13; 105/28 and AB/16/56 which are exhibits `G’, `K’ and `O’ respectively. In my view this defence is well grounded. The judicial proceedings of 1913, 1928 and 1956 are quite explanatory and binding on the parties”


but he nonetheless dismissed the plaintiffs’ claims on their merits for other reasons.


It was the submission of Mr. Molajo for the appellants that as the decision of Taylor, J., on 19th May, 1958 in Suit AB/16/56 had never been appealed against it stood as a bar to the plaintiffs bringing the present action. He submitted that as they were precluded from bringing the action the learned trial judge should not have dismissed their claims but have struck them out. As this objection went to the right of the High Court to hear the present action in the circumstances he submitted he was entitled to raise it on appeal notwithstanding it had been one of the main points of the defendant in the High Court and that it was the plaintiffs who brought the action in the first place. He endeavoured to explain this by stating that he had not been the counsel for the plaintiffs in the earlier action and knew nothing of it, and further submitted that as the defendant did not take a preliminary objection on this basis but allowed the action to be fought he should be liable in costs if we accepted this submission that the High Court was precluded from hearing the present action by the still existing order of Taylor, J., which had not been complied with.


Mr. Akinrele for the respondent pointed out that the defendant had raised this issue in paragraph 7 of the statement of defence so that the plaintiffs’ counsel, let alone the plaintiffs, had been on notice of it from that time and they did not deal with it in their reply. Mr. Akinrele further submitted that he took this point in his final address in the High Court whilst according to the record, and indeed to his own knowledge as he was present, Mr. Molajo had subsequently argued in his final address that he “maintains that order of 19th May, 1958 is ineffectual”. According to the record Mr. Molajo appears to the alternative to have gone on in his final address to say that if the Court found the order was effectual then it should strike out the plaintiffs’ claims. It is the submission of Mr. Akinrele to us that as the plaintiffs did not appeal against the decision of Taylor, J., they were bound by it and as they brought the action on the 31st of May, 1963, when the order of Taylor, was that it must be instituted by the 31st of July, 1958, the High Court was anyway right to have dismissed the plaintiffs’ action and that should remain, but that the respondent should have the costs of this appeal as the learned trial judge should have founded his judgment on the objection that the defendant raised in his statement of defence which the learned trial judge accepted.


In our view as the order of Taylor, J., of the 19th of May, 1958 was not appealed against, the defendant was right in his pleading that the plaintiffs were estopped from bringing the action as they did not comply with the terms of the order. We think that the learned trial judge should have dealt with the matter on this basis only instead of going on to deal with the plain-tiffs’ claims on their merits. If he had done so we consider the right order for him to have made would have been to strike out the plaintiffs’ claims and not to dismiss them. Nonetheless we think the learned trial judge was right to award costs to the defendant. It was however the initial error of the plaintiffs to have brought the action and Mr. Molajo, their counsel even up to his final address seems to have been trying to persuade the High Court that the Court was entitled to hear the matter on its merits as the order of Taylor, J., on 19th May, 1958, was ineffectual.


In the circumstances, we do set aside the order of Fakayode, J., dismissing the plaintiffs’ claims, but not his order of 12 guineas costs to the defend-ant, which remains, and we substitute therefore an order that the plaintiffs’ claims be struck out. As to costs in this Court we think the fair course to adopt, as we have done in fact in other cases in appropriate circumstances, is to give the respondent his out of pocket expenses, namely the costs of the record which in this case were 5 guineas, and the order of the Court is therefore in this respect that the appellants do pay the respondent 5 guineas costs of this appeal.


Appeal allowed.



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