3PLR – AKANDE V. ALAGBE

 

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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AKANDE

V.

ALAGBE

IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, 8TH DAY OF JULY, 1988

S.C. 74/1985

CWLR (1988) 5

 

OTHER CITATIONS

(1988) 4 NWLR (PT. 86) 1

LN-e-LR/1988/10  (SC)

 

_______________________

CHILDREN AND WOMEN LAW: Women and property – Claim to possessory title in land

_________________________

 

BEFORE THEIR LORDSHIPS:

ANDREWS OTUTU OBASEKI, J.S.C.(Presided)

KAYODE ESO, J.S.C. (Read the Lead Judgment)

SAIDU KAWU, J.S.C.

ABDUL GANIYU OLATUNJI AGBAJE, J.S.C.

ABUBAKAR BASHIR WALI, J.S.C.

 

BETWEEN

CHIEF BUSARI ADEPOJU AKANDE

AND

ALHAJA HUNMUANI ALAGA

REPRESENTATION

E.O. Sofunde – for the Appellant

Chief J.O. Fawole – for the Respondent

 

OTHER ISSUES

LAND LAW –Declaration of title to land – Action for trespass

PRACTICE AND PROCEDURE – EVIDENCE – Whether doctrine of res judicata will avail the Appellant

 

MAIN JUDGEMENT

ESO, J.S.C. (Delivering the Lead Judgment):

This appeal has been lodged against the decision of the Court of Appeal sitting at Ibadan. The Court dismissed the appeal against the judgment of the High Court Ibadan where the claim was for –

(i)      declaration of tide to a piece of land at Ibuko area of Ibadan;

(ii)     injunction restraining the defendant, his agents and privies from committing any act of trespass on the land.

The Court of Appeal dismissed the appeal against the judgment of the High Court and the Defendant who has lost in the two courts, has now appealed to this Court. The Plaintiffs claim was one of a straight-forward conveyance from the Fadiwin Family who she claimed originally owned the land while the Defendant’s claim was that he got his tide from two sources-one portion from Ilaji Family (indeed he discovered that the Ilaji Family sold more than they had to him hence he went to the owners of the excess) the other portion (that is the portion by Ilaji Family which llaji did not own) he got from Odetunde Family –

The defendant relied upon previous litigation on the land in dispute. They are

1. Suit No 1/244/57: Bamigbade & Anor. v. Lawani Fadiwin Fagbenro.

I think the claim in regard to this previous litigation is well put in the Brief filed by the Defendant/Appellant. It was –

that in the suit the predecessors of the present Defendant/Appellant were the Plaintiffs. They took action against the Fadiwin Family that is the predecessors in title of the present Plaintiff/Respondent. The Judge in that case (Doherty J.) pointed out that there was an earlier case in which Fadiwin had sued one Suberu Make and Rail (of llaji Family.) That suit, Doherty J. said ended in the Lieutenant Governors Court. According to Doherty J. the land in dispute in that earlier case, was awarded to the Fadiwin family and that must have included the Lieutenant Governor’s Court, unanimously held that the old course of the Ogunpa Stream was the boundary between Fadiwin Family and llaji Family.

The Defendant has submitted that the land in dispute in the present action is on the llaji Family side of that boundary and a fortiori, the Defendant relied on estoppel that Is the action, 1/244/57, aforesaid, has estoppped the Plaintiff from disputing the title of the Defendant whose tide was derived from the llaji Family. The other case relied upon by the Defendant/Appellant was

2. Suit No.1/145/68: Akande v. Lamidi Fadiwin Fagbenro. An action for trespass. It was brought by the present Defendant against the Fadiwin Family. Be it noted that the present plaintiff/respondent claimed title from Fadiwin Family. The claim was that having purchased the land from llaji Family, the Fadiwin Family were and the Appellant claim in this appeal was that Fakayode C.J. who tried the case pointed out that land in dispute is enclosed by the old and new courses of the Ogunpa Stream and that the original owners were the Odetunde Family.

However at the trial it was necessary and both parties agreed that the Court should visit the locus in quo. During that visit, one man Suberu Aikano Oke who claimed to be a member of the Ilaji Family volunteered to assist the Court by pointing out the area of the land in dispute. The Court later took the evidence of this man though there was strong opposition from the learned counsel for the Defendant. The gist of his evidence was that the Defendant in his surveyed plan included land which the Ilaji Family never owned nor sold to him and which in fact belonged to the Plaintiff. According( to the record of proceedings this witness was cross-examined at length but the Judge in accepting the evidence noted that the witness was not shaken in his testimony.

What is more, the witness told the court that the land in dispute in the case his family lost to Fadiwin Family was the land which was sold to the Plaintiff.

On res judicata, that is in regard to the two cases, I had earlier listed as being relied upon for estoppel by the Defendant, the learned trial Judge said he found it to be the true position when he visited the locus that Fadiwin Family appeared to have attempted to claim more than the award given them by the Doherty’s J. decision and the Judge in that case was right in holding that the matter was res judicata in that case. But the learned trial Judge went on and asked himself a pertinent question. He asked –

“Am I therefore to accept counsel’s submission that on the basis of Ex. M and Ml in the present case, the principle of res judicata applies having regard to the fact that the present plaintiff was never made a party to the action and the land in dispute before me is not exactly the same as the land in dispute before Doherty

He answered the question after examining the principles laid down in Chief Y. Abiodun v. Chief D. Fasanya (1974) 11 S.C. 61 – 78 and said –

“Applying these principles to the case before me, I find that in Exhibit M1 incorporating the proceedings and the decision of Doherty J. in Suit No.138/49 between Fadiwin v. Suberu Alake & Another, the decision was in favour of Fadiwin Family against Suberu Alake and Rail Adefulu so that the defendant in this case is stopped from denying the issue. Similarly, the defendants in the same suit i.e. Lawani Fadiwin Fagbenro, Raji Fadiwin Fagbenro, Fasasi Fadiwin Fagbenro and Abimbola (Fadiwin Fagbenro no matter how “styled or mis-styled” in the suit, are equally estopped from further litigation on the issue. In the words of Doherty J, “If Fadiwin, their father and predecessor in title was dissatisfied with the judgment given in the former action on the ground that it awarded him less than he was claiming, he ALSO ought to have appealed against the judgment’.

Mr. Ogurnvole, learned counsel, for the defendant has urged upon me not to consider this judgment of Doherty J. in favour of the plaintiff because it was not tendered before the Court. It was tendered but rejected on Counsel’s error. But in Exhibit M which was tendered by the defendant, the same ‘Judgment’ was copiously cited before me and surely the question of speculating upon it does notarise. The case of Kofi Gbajoma v. Ogun Gberebi (1961) 1 All N.L.R. at page 853 becomes irrelevant.”

In regard to the other case that is 1/145/68 before Fakayode J. the learned trial Judge rejected the plea of res judicata.

As the parties were not the same in so far Suit 1/145/68 was concerned, the learned trial Judge refused to accept it as a case of res judicata. He went on –

“What is relevant however is the evidence of the Surveyor Mr. Laniyonu on the Plan annexed to Exhibit “A” which is the disputed land to the effect that it is a small portion of the plan Exhibit D (i.e. Exhibit “G” in 1/145/68). There is surprisingly no evidence that even in 1960, the present plaintiff was ever made a party to the action despite Exhibit “B” which the defendant admitted having received as pleaded in paragraph 6 of the Statement of Defence.”

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx …………………………………………………. “where the plaintiff traces his title directly to one whose title to ownership has been established, it is not necessary that he should prove such acts of ownership. If title has been so established, then the onus is upon the defendant to show that his own possession is of such a nature as to oust that of the original owner.”

He gave judgment for the plaintiff who is now the Respondent in this appeal.

In the Court of Appeal, Omololu-Thomas J.C.A. after a most thorough and exhaustive examination of all the facts and the issues, was of the opinion *that there was sufficient evidence, even apart from that volunteered evidence of Suberu Akano Ake, to sustain the decision in favour of the Defendant. He said –

“After having expunged from the record all the references to the evidence of Suberu Akano Ake (the man who emerged at the locus in quo to volunteer evidence) I have given serious consideration to all the unexpurged evidence on the Respondent’s case and in relation to the decision of the trial Judge. On the basis of all the evidence before that court, the decision which the trial Judge had reached (excluding the evidence of that witness) can be sustained by the evidence which has been established and the facts accepted on the issues raised.

The trial Judge decided correctly on the issue of res judicata and estoppel. He was obviously aware of the fact that the onus lied on the respondent to satisfy the court on preponderance of evidence that she was entitled to judgment and on the strength of her own case and not on the weakness of her opponent’s case. He was satisfied that the Respondent had proved her case. In his decision he was relying on acts of ownership in the manner required to establish exclusive ownership in terms of Ekpo vs. ita 11 N.M.L.R. 16 at 69. He also appeared to have correctly applied from the facts before him the principle enunciated in Thomas v. Holder (1946) 12 W.A.C.A. 240 at 255, the Respondent having traced her title to her predecessor’s whose title to ownership had been established, he found that the Appellant had failed to show, and correctly in my view, that their own possession was of such a nature as to oust that of the original owners.

His findings on the whole and conclusions, excluding the inadmissible evidence and conclusions relating thereto, are justifiable by the evidence. He had earlier properly reviewed the evidence of the witnesses, the authorities which are opposite to the issues before him, and on the totality of the evidence, he correctly accepted the respondent’s evidence that she bought the disputed land for valuable consideration in 1955 bona fide, and on the genuine and natural belief that the vendors who are members of Fadiwin family were legal owners of the land, and also that she was a bona fide purchaser for value who had consistently left no stone unturned to evidence her positive acts of ownership.

In view of the fact that there are preponderant legal evidence to sustain the conclusions and the decision of the trial Judge all the grounds of appeal fail.”

In this Court Mr. E.O. Sofunde dwelt most particularly on that portion of Doherty J’s judgment, which I did earlier refer to, showing the land awarded to the Fadiwin Family. The plan of that land which was Exhibit B in that Judgment (The Judgment aforesaid was tendered as Exh. Ml in this case) was tendered before us and we accepted it as Exh. SCI.

Mr. Sotunde’s strenuous contentions was that the judgment of Exh. M1 and the Lt. Governor’s judgment Exh.4 had constituted estoppel as to the boundaries of the land in dispute. And so the real question in this appeal resolves itself with the nature of action before the Lt. Governor and also before the Trial Court in the instant case.

There is no doubt that the claim before the Lieutenant Governor was not in trespass. It was

“a right to restrain the defendant from trespassing into the Plaintiff’s farmland…”

Before Doherty J. the claim was for –

N200 as damages for trespass committed on plaintiff land ……………..

Of course, the instant claim was for Declaration and Injunction. The decision in the trespass action cannot be a res which had been judicata in a subsequent action for declaration of title. That is elementary. There could be issue estoppel however if title was in issue. But did the Lieutenant Governor determine the extent of the land of the Respondents predecessor in title? For that is the next question if the plea of res judicata would not avail the Appellant. Let us re-examine the content of the decisions of the Lieutenant Governor and Doherty J. I could hardly do better than the in depth analysis given to these decisions by Omololu-Thomas J.C.A. He said and I am in full agreement.

‘The next complaint in ground 3(a) is with reference to the judgments and some other exhibits. The error and misdirection complained of are with particular reference to the finding that –

“It is clear from the decision of Doherty J., that in Fadiwin v. Suberu Alake and Another title to the land in dispute was awarded to the plaintiff/respondent, Fadiwin.”

The submission of learned counsel for the appellant was that the decision was only in respect of an injunction and that the question of title did not arise, and that “title to the land in dispute was not awarded to the plaintiff.”

This is clearly a misconception and a misinterpretation of the judgment of the trial judge. He was, here, and as quoted above under Ground 2 (a), talking about the incorporation in Exhibit Ml of the proceedings in suit No. 138/49 between Fadiwin v. Suberu Alake & Anor., the decision, in which case, and not in Doherty’s judgment itself, was in favour of the plaintiff/respondent in that case, FadWin. This is clearly borne out by the record. He did not say that from the decision of Doherty J. that in Fadiwin v. Suberu Alake & Anor. title was awarded to the plaintiff respondent, Fadiwin, as quoted out of context, because Doherty J. in fact never decided title in that suit. He merely said Ex. “M” that question of ownership or title to the land in dispute was res judicata (referring to the decision in the 1949 suit quoted in Ex. “M”).

Though res judicata had not been created by the judgment of Doherty J. the issue of title would seem to have been settled in favour of Fadiwin in the case before the Lieutenant Governor who held –

“It has been held as a fact that the old course of the Ogunpa stream is the boundary between the parties to this suit and I am not prepared to disturb this finding of fact.”

This must ordinarily operate as issue estoppel in regard to the boundary between the parties to the suit.

Now in this Court, the principal issue raised was one of res judicata created by the two judgments. It is not in dispute that the plaintiff was not party to either case. There is indeed no problem whatsoever about the latter suit 1/145/68 which was before Fakayode J. The parties therein were not the same parties in the present suit. It is in regard to the case before Doherty J. that any problem could arise. The predecessors in title of the present parties were the parties therein.

But the main prop of the Appellant’s case is not the case before Doherty J. itself. It was the case which was decided in the Court of Lieutenant Governor and which was referred to by Doherty J. that was in fact relied upon. That was when the issue estoppel about boundary between the predecessors in title of, the present parties could arise.

And that case before the Lieutenant Governor was not pleaded in this case. Only the case before Doherty J. which made reference to it that was pleaded. The decision of the Lieutenant Governor would therefore not affect the Plaintiff if only for the simple reason that it was not pleaded by the Defendant.

So, what we have to examine is how much effect the Doherty J. judgment would have on this present case. The case before Doherty J. was instituted in 1957 – 1/244/57. Exhibit M1 shows it was mentioned before Doherty J. on 17th March 1959.

But the plaintiff had acquired her interest on 11th August 1955. Paragraph 4 of the Statement of Claim reads –

“Under and by virtue of a deed of conveyance dated 11th day of August, 1955 made between (1) Lawani Also Mogaji of Fadiwin family (2) Raii Aremu Fadiwin (3) Fasasi Akanni Fadiwin (4) Abimbola Adio Fadiwin and the plaintiff and registered as No. 49 at page 49 in volume 118 of the Lands Registry in the office at Ibadan the land in dispute was sold for valuable consideration and conveyed to the plaintiff by the said Lawani Alao Fadiwin and Abimbola Adio Fadiwin for themselves and on behalf of the entire Fadiwin Family.”

And so she had title two years before the suit was filed before Doherty J. not against her but her predecessor in title. There is nothing to show, or indeed nothing has been suggested that the plaintiff knew about that suit. She was not a privy to the suit. She knew nothing about it. She could not be held to stand by while the decision against her predecessor in title was given for or against that predecessor. The decision was after a sale for value to her and could not be used against her as res judicata in a litigation she became involved in after.

In my view, the suit before Doherty J. would not affect the fortune of this case just as the other case before Fakayode J. would not, though for a different reason. What is left? It is of course her evidence in Court. The Court of Appeal held that there was sufficient evidence after disregarding the volunteered evidence of Suberu Akano Ake. It is in this regard that the exposition of the law by the Court of Appeal on Ekpo v. ita; Thomas v. Holder is relevant and also the findings of the fact by the Judge as confirmed by the Court of Appeal as regards acts of ownership exercised by the Respondent thus presenting concurrent findings of fact of two courts on the facts.

Had the case before the Lieutenant Governor to be applicable one would have been obliged to ask what was meant by the old course of Ogunpa River. Exhibit SC1 which was admitted in evidence at the hearing before us was an exhibit tendered in the case before Doherty J. and not that used in the case before the Lieutenant Governor.

Ogunpa River is a very long River and one would need evidence to identify the land which was in evidence before the Lieutenant Governor had it been necessary to apply that judgment as res judicata.

On the whole the appeal lacks total merit and it fails. It is dismissed with N500.00 Costs to the Respondent.

OBASEKI, J.S.C.:

In this appeal, two questions for determination were formulated by the appellant who was defendant in the High Court These questions are:

(1)     In respect of what issues did the judgment of Doherty, J. in suit No. 1/244/57 and of Fakayode, J. in suit No. 1/145/68 operate as estoppel?

(2)     If, but only If, the answer to the first question is contrary to the answers urged by the appellant herein, what is the effect of the error of the High Court in admitting the evidence of Suberu Alake?

However, the respondent in his brief formulated the questions slightly differently and increased them to three. The three questions are:

(1)     whether the judgment of the learned trial judge and the judgment of the Court of Appeal in favour of the plaintiff/respondent are vitiated by the judgments in Exhibits ‘M’ and ‘P’ on the ground of the application of the doctrine of estoppel per rem judicatam;

(2)     whether the judgment of the court of first instance and the judgment of the court below are valid if the evidence of Suberu Alake is ignored and expunged;

(3)     whether defendant appellant has established special circumstance that is strong enough to disturb the concurrent findings of facts in support of the judgment of the lower court and that of the court of first instance.

I find the questions formulated by the respondent extremely helpful in determining this appeal. The above questions formulated both by the appellant and the respondent have been examined in detail and determined in the judgment just delivered by my learned brother, Eso, J.S.C., the draft of which I had the pleasure and advantage of reading in advance. I agree with his opinions on all the issues and I adopt them as my own.

I agree that the judgment of Doherty, J. in suit No.l/244/57 Bamigbade & Anor. v. Lawani Fadiwin Fagbenro and the judgment of Fakayode, J. in suit No.l/145/68 – Akande v. Lamldi Fadiwin Fagbenro do not operate as either issue estoppel or estoppel per rem judicatam to defeat the claim of the plaintiff/respondent. Where a third party acquires an interest in property before the filing of a suit leading to the judgment pleaded as res judicata to defeat a subsequent action instituted by the third party and the third party was not proved to be standing by at the time of the action, his claim cannot be defeated by the plea of res judicata. This is because the action leading to the judgment was instituted after he had acquired interest in the property and tie was not joined in the suit.

I therefore agree with my learned brother, Eso, J.S.C. when he said (after quoting paragraph 4 of the statement of claim) that:

“And so she (the plaintiff) had title two years before the suit was filed before Doherty, J. not against her but her predecessor in title. …………………………… The decision was after a sale for value to her and could not be used against her as res judicata it a litigation she became involved in after.

In my view, the suit before Doherty, J. would not affect the fortune of this case just as the other case before Fakayode, J. would not, though for a different reason.

What is left? It is of course her evidence in court. The Court of Appeal held that there was sufficient evidence after disregarding the volunteered evidence of Suberu Alake.”

I too would dismiss the appeal and I hereby dismiss it with N500.00 costs to the respondent.

KAWU, J.S.C.:

I have had the privilege of reading in draft the lead judgment of my learned brother, Kayode Eso, J.S.C. which has just been delivered. I am in complete agreement with him that the appeal lacks merit and should be dismissed. For the reasons given in the said lead judgment, I too will dismiss the appeal with N500.00 costs to the respondent.

AGBAJE, J.S.C.:

I have had the opportunity of reading in draft the lead judgment of my learned brother Eso, J.S.C. I agree with him that this appeal lacks merit.

The plaintiff, Alhaja Hunmuani Alaga, sued the defendant, Chief Busari Adepoju Akande, in an Ibadan High Court claiming a declaration of title to a piece or parcel of land situate at Ibuko Ibadan. She also claimed an injunction restraining the defendant, his servants or agents from trespassing on the land. The land in dispute was shown on plan No. L and L/D 241 A by an area verged “Red”. The plan is Exh. “C” in this case.

It was the plaintiff’s case that the land in dispute belonged originally to Fadiwin Family of Fadiwin Compound, Isale Bode and that the said family though its accredited representatives sold and conveyed the land in dispute to the plaintiff by a deed of conveyance dated 11/8/55 and registered as No.49 at page 49 in volume 118 of the lands Registry Ibadan.

The defendant claimed to have derived his title to a part of the land in dispute from Ilaji Family and the remainder of it from Odetunde Family, the deed of conveyance in this regard being a deed of conveyance dated 13th January, 1953 registered as No.29 at page 29 in Volume 58 of the Lands Registry in the office at Ibadan, from Ilaji Family and a deed of conveyance dated 11th June, 1960 and registered as No.63 at page 63 in volume 385 of the Lands Registry in the office at Ibadan from Odetunde Family.

Paragraphs 11, 12 and 13 of Statement of defence of the defendant read as follows:

11. The part of the area in dispute which was part of the land sold by the Ilaji Family to the Defendant is edged GREEN in plan No. AD :32.75 was the subject matter of an action Suit No. 1/844/57 between the Plaintiff’s predecessors in title and the Defendant and Lawani Bamigbade. The Defendant will rely at the trial on the Plan in Suit No. 1/244/57 where in the Defendant and Lawani Bamigbade were granted declaration of title, damages for trespass and injunction.
12. TheDefendantaversthattheFadiwinFagbenroFamilyfromwhichtheplaintiff purported to have derived her title had no title to the land in dispute and the plaintiff obtained no valid title on the principle of nemo dat quod non habet.
13. In Suit No. 1/145/68 against Mogaji Fadiwin Family (Lamidi Fadiwin Fagbenro) and others, the Defendant obtained judgment for damages and an injunction in respect of the portion of the area in dispute which was part of the land sold in 1984 by the Odetunde Family to the Defendant and Lawani Bamigbade. The Defendant contends that the plaintiff and, or her predecessors in title are estopped from denying the Defendant’s title to the area involve in Suit No. 1/145/68 and the Defendant will rely on both the Judgment and paragraph 2 of the Statement of Defence in Suit No. 1/145/68 in the course of the trial.”

In effect they defendant’s main defence and indeed the only defence as I will show presently to plaintiff’s claims against him was a plea of estoppel.

The defendant lost at the trial court and in the Court of Appeal, Ibadan Division. This is a further appeal by the defendant to this court.

As far’ as the plea of estoppel per rem judicatam is concerned, based as it were on the decisions in suits Nos. 1/244/57 and 1/145/68, it appears clear to me that the plaintiff cannot be bound by either of the decisions because she acquired the whole of her interest in the land in dispute from her predecessors-in-title in 1955 long before even the commencement of either of the two cases relied upon in support of the plea of res judicata by the defendant. See Abbey v. Olenu 14 W.A.C.A. 576 at 568 and Halsbury Laws of England, 4th Edition volume 16 page 1043 paragraph 1548.

This to my mind is the end of the plea or res judicata raised by the defendant, having regard to the state of the pleadings in this case.

However counsel for the defendant Mr. Sofunde referred to the judgment pleaded in Suit No. 1/244/57, and upon which the judgment in that suit was based. The former judgment was Exh. X in the case and it was between Fadiwin and Subaru Alake & Anor. in the High Court of the Lieutenant Governor. The decision in the case was on 27/1/53, of course, before the plaintiff acquired her interest in the land in dispute and the case was between the predecessors-in-title of the plaintiff and of the defendant. So my reason for rejecting the plea of estoppel based on suits No. 1/244/57 and 1/145.68 will not apply here.

However, to begin with, I do not think that, judgment can be relied upon in this case in support of the plea of estoppel raised in this case, for the judgment was not pleaded at all in this case. The judgment was only incorporated in a judgment pleaded as estoppel in this case. This court has held in Lawal v. G.B. Ollivant (1972) S.C. 124 that reference in a document pleaded to another document not pleaded does not render the latter a document pleaded. So since the decision in the case is not pleaded in this case, it cannot be admitted in evidence in this case. So, it goes to no issue in this case and should be rejected or ignored if admitted in evidence wrongly. See Ferdinand George v. The United Bank for Africa (1972) 8/9 S.C. 264 and Emegokwe v. Okadigbo (1973) 2/S.C. 113.

In any case it has not been shown that the land now in dispute between the parties to this appeal is within the land in dispute in the case to which the decision related. It is true it was said in the case that the old course of Ogunpa stream was the boundary between Ilaji Family land and Fadiwin Family land. It is clear that the decision was concerned with the land in dispute in that case. Unless it is established, which is not the case here that Fadiwin Family land and Ilaji Family land stretch along the entire course of Ogunpa Stream that decision will not create an issue estoppel each time there is litigation even between Fadiwin family and Ilaji family in respect of land along Ogunpa stream course but outside of the land in dispute in the case in question. This is all the more so in the instant case where there is no allegation in either of the pleadings in this case that Fadiwin and Ilaji Families are boundary men along the old course of the Ogunpa stream in question.

For estoppel per rem judicata to apply the parties and the issue and subject matter must ba the same in the previous suit and in the suit in which the plea is raised. See Alashe v. llu (1964) 1 All N.LR. 390 at 394. In the instant case the defendant has failed to show that the subject matter of the claim in the previous case and that in this case are one and the same.

In my judgment the plea of res judicata based on the decision in the case I am considering must fail.

As I have said the plea of estoppel was the defendant’s only defence to plaintiff’s claims against him. I say so for the following reasons.

The plaintiff by the averments in her statement of claim pleaded that the land in dispute originally belonged to Fadiwin family from whom she bought it and that since the latter act she had been in possession of it by herself and agents exercising acts of ownership over it. The defendant, although he denied in his statement of defence paragraph 7 of the plaintiffs statement of claim whereby she pleaded her possession of the land in dispute, nowhere in the rest of the statement of defence alleged that he was in possession of the land in dispute. It will be observed too that nowhere in the statement of defence was it pleaded that Ilaji and Odetunde families were the original owners of the land in dispute. The contention in the statement of defence that Fadiwin family had no title to the land in dispute was based on the plea of estoppel set up by the defendant.

The other issue which counsel for the defendant submits arises for determination in the case has to do with the irregularity which undoubtedly the learned trial Judge committed in calling in this civil proceeding a witness, one Suberu Alake of his volition without the consent of both parties to the case before him. But this irregularity did not bear at all on the issue of estoppel which I have just considered.

I agree with learned counsel for the defendant that if the plea of estoppel set up by the defendant was rejected the plaintiff still has to prove her title to the land in dispute to succeed in this case. I however disagree with counsel for the defendant that If the evidence of Suberu Alake wrongly admitted was expunged from the proceedings on this case there would not be enough evidence left to support the plaintiff’s claims against the defendants.

It is true that evidence as to the root of title of the plaintiff namely that the Fadiwin family were the original owners of the land in dispute was scanty going by the rest of the evidence for the plaintiff in this regard besides the evidence of Suberu Alake. But there was evidence for the plaintiff in this case which the trial Judge accepted that at all times material to this case the plaintiff was in possession of the land in dispute. This being the case because of the provisions of section 145 of the Evidence Act as to burden of proof as to ownership, the onus then would be on the defendant who was affirming that the plaintiff was not the owner of the land in dispute to prove that she was not the owner.

As I have said earlier in this judgment the defendant had not pleaded that his predecessors-in-title- llaji and Odetunde Families – were the original owners of the land in dispute. In fact he pleaded nothing besides the judgments relied upon by him in support of his plea of estoppel showing that the said families were even owners of the land in dispute. In effect he relied entirely for his contention that the plaintiff was not the owner of the land in dispute on the plea of estoppel which ire my judgment and in those of the trial courts below cannot stand.

It is for the above reasons that I have come to the conclusion that the defendant’s only defence to the plaintiff’s claim against him was his plea of estoppel.

It follows that the defendant having failed to discharge this onus which was on him, the plaintiff was entitled to judgment on her claims for title to the land in dispute and an injunction against the defendant.

It is for the above reasons and in addition to those ably set down in detail in the lead judgment of my learned brother Eso, J.S.C. that I too dismiss the defendant/appellant’s appeal against the plaintiff/respondent with costs assessed at N500.00 to the respondent.

WALI, J.S.C.:

I have had the advantage of reading in advance a copy of the judgment read by my learned brother Eso, J.S.C. I entirely agree with the reasons given therein for dismissing the appeal and I adopt them as mine. I do not desire to add anything more. I abide by the consequential order made as to costs.

Appeal dismissed.