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13TH APRIL, 1973

SUIT NO. SC 125/1972

3PLR (1973) 2




LN-e-LR/1973/15 (SC)

(1973) All N.L.R 281

(1973) 4 S.C. 9








REAL ESTATE/LAND LAW:- Proof of title – Where party is entitled to plea of res judicata and estoppel per rem judicatam on the same point due to subsisting and valid judgment of a competent court – Whether unnecessary for him to have to prove due execution of conveyance of the land in subsequent suit

REAL ESTATE/LAND LAW:-  Joinder of a claim to damages for trespass to land and injunction with possession – Propriety thereof

CHILDREN AND WOMEN LAW: Women and Real Estate/Land – Defence of interest in land – Relevant considerations – Women and Justice Administration – Judgment of a competent court relating to land – Whether can be changed or nullified through subsequent consent judgment at the instance of parties

PRACTICE AND PROCEDURE – ACTION: Plea of res judicata and estoppel per rem judicatam – Where party is entitled to same by reason of subsisting  – Effect on evidentiary burden of proof in subsequent suits

PRACTICE AND PROCEDURE – ACTION:Pleadings – Partial denial of a paragraph of a Statement of Claim  – Whether implies the admission of the remainder of the paragraph 4

PRACTICE AND PROCEDURE – COURT:- Judgment of Court – Purported reversal of a High Court judgment by the consent judgment – Whether also operates to reverse a subsisting Supreme Court judgment flowing the High Court judgment – Whether omission to mention the Supreme Court judgment in the Consent Judgment is material

PRACTICE AND PROCEDURE – EVIDENCE:Prior subsisting judgment – Plea of res judicata and estoppel per rem judicatam – Effect on burden of proof in subsequent suit relating to the same parties/res

PRACTICE AND PROCEDURE – JUDGMENT:- Consent Judgment – Where intended to nullify the effect of a valid and subsisting judgment of a High Court which had been determined on appeal to the Supreme Court – Legal possibility – Attitude of court thereto

PRACTICE AND PROCEDURE – JUDGMENT:- Judgment of Court – Whether the same court has jurisdiction to revisit same on the urging of a party on the basis of fraud – Proper procedure thereto

PRACTICE AND PROCEDURE – JUDGMENT:- Two judgments relating to the same subject matter – Allegation of conflicting decisions therein – Whether amounts to reversal of earlier one by the subsequent one – Duty of court to properly review the context and facts of related cases




Mr. H. A. Lardner for Appellant.

Mr. A. Ogunsanya for Respondent.




ELIAS, C.J.N. (Delivering the Judgment of the Court):

In Suit No. LD/265/69, Taylor, C.J., in the High Court of Lagos State entered judgment on January 11, 1971 for the plaintiff against the defendant in trespass and dismissed the defendant’s counter-claim for title in fee simple in respect of the land in dispute. On January 12, 1971, the learned Chief Justice also granted the plaintiff an injunction restraining the defendant, his agents and/or servants from further trespassing on the land. The plaintiff’s claim from the defendant was for the sum of £200 as damages for trespass allegedly committed by the latter on the plaintiff’s land known as Plot No. 92 Mr. J. A. Daniel’s allotment or 33, Omobola Street, Ikate, Surulere, Lagos. The plaintiff also sought an injunction restraining the defendant and his agents and/or servants from committing further acts of trespass on the land in question. The defendant filed a counter-claim in which he sought a declaration of title to the said land.


The issue for decision was correctly stated thus by the learned trial judge:

“The facts of the case as presented at the hearing and in the pleadings present no difficulty at all for the matter to be decided in this case and on which the case for both claimant and counter claimant rest is a matter of law. Whilst the plaintiff rests her case on the judgment in Suit No. 1/108/55 confirmed on appeal in FSC. 85/58, the defendant rests his case on HK/39/62 which on appeal to the Supreme Court was settled in SC. 293/64.


The facts of this case are briefly as follows. The plaintiff claimed that he purchased the land in dispute from the representatives of the estate of J.A. Daniel (deceased) who in turn purchased it from the Ajiya Family. This family claimed title by an absolute gift of the land from the Onitire Chieftaincy Family, and the title under customary law was declared by Taylor, J., as he then was, to have been so granted in Salawu Lawani (on behalf of the Onitire Family) v. Asimowu Durojaiye (on behalf of the Ajiya Family), Suit No. 1/108/55 in the High Court of Western Nigeria at Ikeja. This decision was confirmed on appeal by the Supreme Court in Suit No. FSC.85/58 delivered on November 13, 1958. The action had been fought on both sides in representative capacities, and so the judgment is binding on both parties to the case and their privies who are parties to the present case.


The defendant claimed title through the Onitire Chieftaincy Family as original owners of the land after he had first purchased from a third party (one Biliaminu Oginni), who was probably a squatter, before he was told who the alleged owners were.


There was no dispute as to the identity of the land in question: see exhibit A which includes the area in dispute in the present case. But it is necessary at this stage to refer to Suit No. HK/69/60 between Salawu Lawani and Asimowu Durojaiye in which the plaintiff sued the defendant seeking an order to set aside the judgment in Suit No. 1/108/55 on ground of fraud, but the suit was dismissed by Madarikan, J., on July 31, 1963. It is also to be noted that neither J.A. Daniel nor his representatives were parties to this action and that his conveyance and title deeds were dated some eight years prior to the date of this judgment. Similarly to be noted is the fact that the plaintiff in the action had purchased the plot in dispute as per exhibit it on October 31, 1962, though the conveyance to her was made in 1969 as per exhibit J. The plaintiff then appealed to the Supreme Court from the judgment of Madarikan, J., and the following drawn-up order containing the terms of settlement was made:

“It is ordered that this appeal be settled on the following terms herein agreed to by the parties.

(1)     That the judgment on the counter-claim in suit No. 1/108/55 instituted [by] Salawu Lawani Bale of Itire representing the Itire family versus Ashimowu Durojaiye representing the Agia family given in the High Court of Western Nigeria on the 3rd January, 1957 be set aside and an order for dismissal of the said counter-claim entered.


(2)     That the order for costs in the Court below be set aside.


(3)     That the costs of this appeal be costs in the cause.


(4)     That these terms of settlement do form the judgment of the Court in this appeal.


Dated the 11th day of November, 1965.”


Since this consent judgment (a) deals only with the 1955 judgment on the counter-claim alone and does not deal with the judgment dismissing the claim to title of the Onitire Family, and (b) does not deal with the judgment of the Supreme Court upholding the judgment of the lower court, the learned trial judge held that the plaintiff’s title is derived from that of J.A. Daniel’s which is itself based on the judgment in Suit No. 1/108/55, and which was confirmed on appeal to the Supreme Court in FSC. 85/1958 and that, therefore, the plaintiff “must succeed in the claim which though one for trespass and injunction, presupposes title.” The counter-claim was thereupon dismissed. Against this decision the present appeal has been brought to this court on the following five grounds:

“1. The judgment is wrong in law in that

(a)     at the end of the evidence in the case, there was before the court no admissible evidence in proof of the material averments in paragraphs 4, 5 and 9 of the Statement of Claim to wit;

(i)      the original ownership of Agia Family of the land in dispute,

(ii)     the due execution of Ex. E and Ex. F by the grantors thereof.


(b)     contrary to paragraph 4 of the Statement of Claim where the Agia Family claim to be the original owners, the plaintiff’s root of title Ex. E admits the original ownership of Onitire but notwithstanding this the plaintiff did not seek to amend his Statement of Claim and the learned Chief Justice came to a wrong decision in holding that the plaintiff had established title to the land as against the defendant who relied on and proved a grant from the Onitire Family (Ex. O).


(2)     The decision is wrong in law in that the learned Chief Justice’s interpretation of the effect of the judgment in Suit 1/108/55 (Ex. A) and No. SC.293/64 (Ex. N) overlooks the facts that

(a)     Ex. N set aside the judgment in Ex. A.

(b)     Daniel’s title had accrued before the judgment Ex. A and Ex. A cannot therefore be relied on by Daniel and his successors in the title as res judicata.

(c)     Lee v. Motor Insurers’s Bureau (1953) 1 W.L.R. 620 is not on all fours with the present case on the facts.


  1. The plaintiff having wrongly joined a claim for trespass and injunction with one for possession, the evidence of possession on the plaintiff’s behalf was (a) uncertain and (b) hearsay, and the learned Chief Justice’s finding that the plaintiff was entitled to succeed in trespass because (i) ‘she had established title and (ii) ‘the fact is admitted by the defendant that he built on the land in 1970 after notice and after action had been instituted’ are wrong in law in that this finding does not establish possession.


  1. The learned Chief Justice misdirected himself in law in dismissing the defendant’s counter-claim for a declaration of title when

(a)     the Conveyance Ex. E on which the plaintiff relied admits the original ownership of the Onitire Family;

(b)     the defendant had a conveyance (Ex. O) of the land from that family and called one of his grantors; and

(c)     the plaintiff did not discharge the burden of establishing that title was no longer in the Onitire Family at the time Ex. O was executed.


  1. The verdict is against the weight of evidence.”


It would seem that the main grounds of appeal may be summarised under the following three heads: (a) that the judgment in suit No. 1/108/55 does not constitute res judicata and estoppel against the appellant in view of the consent judgment of the Supreme Court in SC.293/64 (exhibit N); (b) that conveyance (exhibit E) and the deed of ratification (exhibit F), both of which together constitute exhibit G, have not been proved to have been duly executed in favour of the respondent; and (c) that the claim for trespass and an injunction does not accord with the claim to title as granted by the trial judge and that there is in any case no satisfactory evidence of the respondent’s possession of the land in dispute.


In support of ground (a) Mr. Lardner, learned counsel for the appellant, cited Flower v. Lloyd (1877) 6 Ch. D. 297 as authority for the proposition that the judgment of a court of appeal based on a High Court judgment which was later reversed must be deemed to have been thereby overruled. What that case in fact decided is that the court of appeal in England has no jurisdiction to rehear an appeal once determined and that the remedy open to a plaintiff is by original action analogous to a suit to set aside a decree as having been obtained by fraud.


Jessel, MR, said at p. 299:

‘The question which we have to decide is whether final judgment having been pronounced by the Court of Appeal dismissing an action with costs, the Plaintiff in that action is entitled by motion to apply for leave for a rehearing of the appeal before the Court of Appeal on the ground of subsequent discovery of facts which shew or tend to show that the order of the Court of Appeal was obtained by fraud practised on the court below.”


The motion was unanimously refused. Learned counsel also cited Alaka v. Adekunle (1953) L.L.R. 76 in which the Lagos High Court held that there is no jurisdiction in the court to set aside the completed judgment of another court but that it has jurisdiction to set aside its own judgment obtained by fraud practised on the court. We are of the view that both cases do not support learned counsel’s submission on this point. In the context of the present appeal, learned counsel submitted, the Supreme Court judgment in FSC. 85/58 must be regarded as having been overruled by the consent judgment in exhibit N (SC. 293/64). We think that this contention borders on the absurd because, quite apart from the established principle that a consent judgment is binding only on the actual parties to it, there is the legal impossibility that the reversal of a High Court decision could result in the automatic reversal of a Supreme Court decision reached on appeal from that High Court decision. We recall that in the recent case of Cassell and Co. Limited v. Broom & Anor. (1972) 1 All E.R. 801, the House of Lords held that the Court of Appeal in England is bound by decisions of the House and that it is not open to the latter to call in question the authority of such decisions as, for example, by advising lower court judges to ignore House of Lords decisions on the ground that they were decided per incuriam or unworkable. It seems to us to follow that the purported reversal of the High Court judgment in Suit No. 1/108/55 by the consent judgment in exhibit N does not and cannot have the effect of reversing the Supreme Court judgment in FSC. 85/1958, of which no mention is made in exhibit N. We think it at least doubtful whether, even if the Supreme Court judgment in FSC. 85/1958 had been included in exhibit N as also overruled, such an effect would necessarily follow in the absence of a Supreme Court judgment reached after due consideration of arguments on the merits of the case itself as recorded in Lee v. Motor Insurer’s Bureau (1953) 1 W.L.R. 620 at p. 621:

“Denning L.J. said that an appeal could not be allowed by consent for that would be reversing the judgment of Lord Goddard, C.J. without hearing the appeal.”


In an attempt to whittle down the force of the judgment in Suit No. 1/108/55 (exhibit E), Mr. Lardner also submitted that there would seem to be a conflict between the present appeal and the recent decision of the Supreme Court in Talabi v. Adeseye S.C. 58 of 1970 reported in (1972) 8/9 S.C. 20, at page 33 where, he claimed, exhibit N was presumably regarded as having set aside the judgment in Suit No. 1/108/55. Mr. Ogunsanya replied, quite rightly in our view, that the Supreme Court did not base its judgment in the Talabi case on the fact that Suit No. 1/108/55 had been set aside by exhibit N, but rather on the fact that the plaintiff in the Talabi case did not prove his title to the land there in dispute. Learned counsel therefore submitted that there is no conflict between the Talabi case and the present appeal, as there is no reference in that case to FSC. 58/1958 nor was there an order made that Talabi reversed it.


The second contention of learned counsel for the appellant that the respondent had failed to discharge the onus that the conveyance to him together with the deed of ratification was duly executed can be discounted, Mr. Ogunsanya (leamed counsel for the respondent) argued, for the reason that the point was never raised in the court below and that it could not now be raised in this appeal, Mr. Ogunsanya also maintained that there is no need for the respondent to prove execution of a document, the substance of the contents of which the appellant himself admitted in the lower court. He referred to paragraph 4 of the Statement of Claim in which plaintiff avers his root of title from Ajiya family down to J.A. Daniel from whom the respondent purchased the land. On the other hand, paragraph 2 of the Statement of Defence only denies paragraph 4 of the Statement of Claim “in so far as it asserts that the Ajiya family were the original owners of the land in possession in dispute from time immemorial according to native law and custom,” thereby impliedly admitting the remainder of paragraph 4 of the Statement of Claim regarding plaintiff’s title to the land in dispute. We also think that, in view of the respondent’s subsisting title under FSC. 85/1958 in respect of which the respondent can plead res judicata and estoppel per rem judicatam it is unnecessary for him to have to prove due execution of exhibit E and exhibit F, that is, the conveyance to him.


With regard to the third main submission of learned counsel for the appellant that the joinder of a claim to damages for trespass and injunction with possession, Mr. Ogunsanya, learned counsel for the respondent, replied that there is nothing wrong with this. It was his submission that there was abundant evidence as to the plaintiffs possession in Mr. Luca’s testimony in the lower court as to the plaintiff’s erection of a sign-board and the placing of a caretaker on the land in dispute as well as his own personal visit to the land only some three months prior to the hearing of the action. At no time did the defendant deny that the plaintiff put a caretaker on the land or that he removed the plaintiff’s sign-board. When letters were written by the plaintiff’s solicitor to the defendant pointing out that he was trespassing, there was no reply; instead, the vendors were asked to reply to the plaintiff that they had sold the land to the defendant. There was no reply to a second letter from the plaintiff.


We are, therefore, of the view that on a correct interpretation of exhibit N, which both sides in their final addresses before Taylor, C.J., regarded as crucial to the determination of the rights of the parties, the learned trial judge was right in entering judgment for the plaintiff on the claim of trespass and injunction and dismissing the defendant’s counter-claim. We accordingly see no reason to interfere with the judgment of Taylor, C.J., in Suit No. LD/265/69 delivered on January 11 and 12, 1971, in the High Court of Lagos State, including the order as to costs. We therefore dismiss the appeal and award costs assessed at N150 to the respondent as costs, in this appeal.


Appeal dismissed.




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