3PLR – IYOWUAWI V.  IYOWUAWI

LAMEN SEGILOLA IYOWUAWI

V

MADAM NIMOTA ABAKE IYOWUAWI

 

COURT OF APPEAL

(IBADAN DIVISION)

1ST JULY, 1987.

SUIT NO. CA/I/135/85

3PLR/1988/44  (CA)

OTHER CITATIONS

CWLR (1987) 4

(1987) 4 NWLR (Pt.63) 61

 

BEFORE THEIR LORDSHIPS

JOHN HEZEKIAH OMOLOLU-THOMAS, J.C.A. (Presided)

MICHAEL EKUNDAYO OGUNDARE, J.C.A. (Read the Lead Judgment)

IBRAHIM KOLAPO SULU-GAMBARI, J.C.A.

 

REPRESENTATION

A. O. Ajakaiye ESQ. – for the Plaintiff/Appellant

Ige ESQ. – for the Defendant/Respondent

 

MAIN ISSUES

EVIDENCE – Doctrine of res judicata – Principle of – Meaning and applicability of issue estoppel

LAND LAW – Ownership of land – Family land – Partitioning of – Claim for possession and trespass – Attitude of Court thereto

CHILDREN AND WOMEN LAW: Women and real estate – DisWOMEN LAW: Women and real estate – Dispute over partitioned family land on account of member who died childless after receiving her share

LATIN MAXIM – quid quid plantatur solo solo cedit – effect of

 

MAIN JUDGEMENT

OGUNDARE, J.C.A.:(Delivering the Lead Judgment):

By a writ of summons issued at the High Court of Oyo State sitting at Ibadan, the plaintiff who is the appellant before us claimed from the defendant, who is now the respondent, as follows:

 

(a)     Declaration that the Plaintiff is entitled to Certificate of Occupancy to that piece and parcel of land and the buildings erected thereon known as N4/47 Lemomu Street, Ekotedo, Ibadan clearly shown on building Plan of Madam Asimowu Segilola, mother of the Plaintiff and dated 13th May, 1950.

 

(b)     Possession of the area occupied by the defendant on the said land.

 

(c)     N5,000.00 damages for trespass against the defendant for digging up the Plaintiff’s mother’s grave on the said land.

 

(d)     Perpetual Injunction restraining the defendant from entry to the land in dispute.

 

Pleadings were filed and exchanged. At the subsequent trial, plaintiff gave evidence and called a witness. Only the defendant testified in support of the case for the defence. At the conclusion of trial, the learned trial Judge, in a reserved judgment found for the defendant and dismissed plaintiff’s claims with costs. It is against this judgment that the plaintiff has appealed to this Court upon eight grounds of appeal which read as follows:

 

  1. The learned trial Judge erred in law and misdirected himself by holding that “the defence of estoppel per rem judicatam was well founded and succeeds” when the cause of action in Exhibits 9 and 10 and the case before him are not the same cause of action.

 

  1. The learned trial Judge erred in law and misdirected himself by making use of Exhibit 9 when there was evidence that it went on appeal to High Court and ought not to have been relied upon in the consideration of the case.

 

  1. The learned trial Judge erred in law by not holding against the Defendant, the non-tendering of the judgment of the High Court of Appeal on Exhibit 9 as requested by Evidence Act.

 

  1. The learned trial Judge erred in law and misdirected himself on the facts in relying on demeanor of the Plaintiff in dismissing his claims when the evidence of the Plaintiff is primarily document.
  2. The learned trial Judge erred in law, by not giving judgment in favour of the Plaintiff who tendered documentary and oral evidence of his title to the land and when the Defendant was unable to tender any evidence in proof of her case.

 

  1. The learned trial Judge erred in law and misdirected himself by holding that the land in dispute belong to Iyowuawi and not Segilola contrary to the documentary evidence tendered by the Plaintiff which shows conclusively that the property belongs to Segilola absolutely.

 

  1. The learned trial Judge erred in law and misdirected himself on the facts in suo motu striking out paragraph 19 of the Statement of Claim on the ground that the paragraph pleaded evidence when the facts pleaded therein are findings of fact made between the Plaintiff and the Defendant in another suit facts which are binding on both parties.

 

  1. The judgment is against the weight of evidence.

 

In accordance with the rules of this Court the parties filed and exchanged briefs. And at the hearing of the appeal learned counsel sought and obtained leave of Court to adduce fresh evidence, that is to say, a certified true copy of the judgment of the High Court, Ibadan in appeal No. I/ 55A/62 delivered on 19th September, 1963 on appeal from the Ibadan No. 1 Grade ‘A’ Customary Court Appeal No. CVA/8/61: Hunmoani Abike & 3 others V Lamidi Iyowuawi (Exh. 9 in the proceedings in the lower court); it was tendered and admitted in evidence and marked Exhibit A.

 

Learned counsel for the parties proferred oral arguments in further elucidation of the submissions in their briefs. Mr. Ajakaiye for the plaintiff/ appellant, submitted that in view of Exhibit A, the defence of res judicata was not available to the defendant. After referring to portions of the judgment learned counsel submitted that where, as in this case, the evidence of title led was mainly documentary, the question of veracity did not arise. He cited in support the case of Thomas Aplin & Co. Ltd. V Northern Nigeria Development Corporation (1972) 12 SC 33, 52. Learned counsel observed that the plaintiff relied on a lease (Exhibit 2) as his root of title while the defendant who relied on a grant from the Oniyemoja family failed to prove the grant. Learned counsel also submitted that the plaintiff could rely on the findings of the court in Exhibit 6 a judgment of this Court in suit No. FCAJI/ 28/79: Sanusi Okunola Mogaji Oganla & 2 others V Lamidi Segifola Iyowuawi (i.e. present plaintiff) and two others (who are his half sisters including the present defendant). He cited in support of this submission the case of Duedu V Yiboe (1961) 1 WLR 1040 , 11146. He urged the Court to allow the appeal and enter judgment for the plaintiff on his claims.

 

Mr. Ige, learned counsel for the defendant/respondent, in his address submitted that Exhibit 9 by itself was sufficient to support a plea of res judicata. He opined that Exhibit A did not set aside the judgment, Exhibit 9. He referred to the concluding part of Exhibit A and submitted that the findings of fact in the Exhibit were binding on the parties. Learned counsel then referred to paragraph 13 of the statement of defence and submitted that issue estoppel could be relied on a plea of res judicata. He cited in support Odjevwedje V Echanokpe (1987) 1 NWLR (Pt 52) 633, 653 and section 53 of the Evidence Act. Mr. Ige referred to Exhibit 10 and submitted that an appellate court would not pronounce on a judgment that would have the effect of defeating a subsisting judgment between the parties. He relied on Echanokpe (supra) and Dosunmu V Ajagun (1978) 2 SC 49. Relying on his brief in respect of the merits of the case, learned counsel urged the Court to dismiss the appeal and affirm the judgment of the court below.

 

Mr. Ajakaiye in a short reply, submitted that Exhibits 9 & 10 only dealt with the structures on the land and not the land as it was the structures that were partitioned.

 

Before I proceed to consider and determine the issues raised in this appeal it is desirable that I at this stage, state the facts as briefly as possible. The plaintiff is a half brother to the defendant both of them being children of Yesufu Iyowuawi, deceased. Their father was married to their mothers according to customary law. Iyowuawi had another wife, making three in all, but only plaintiff’s mother Asimowu Segilola, lived, according to plaintiff’s case, with him until his death in or around 1918, in a house built on the land in dispute. Plaintiff based his claim to the said land to a devise to him by his mother in her will Exhibit 7 and to a lease (Exhibit 2) granted to his mother by the Bale and Council of Ibadan in 1925. The defendant’s case on the other hand, is that the land in dispute was originally granted to her father Iyowuawi by the Oniyemoja family. A house was built on the land by Iyowuawi and after his death the land and house became family property of the Iyowuawi family.

 

The land in dispute and house thereon have been subject of a series of litigations mostly between the plaintiff on the one hand and his two half sisters and half brother on the other hand. Following the death of Asimowu Segilola and the devise of the land in dispute and houses thereon in her will to the plaintiff, he laid claim to the entire property. His brother and sisters disputed the claim and sued him in the Ibadan Grade ‘B’ No. 2 Customary Court, claiming partition of the estate of Yesufu Iyowuawi. The learned president of the court found that the property in dispute belonged not to Segilola personally but to the 4 children of Iyowuawi. He then proceeded to share it among them as requested.

 

The present plaintiff/appellant being dissatisfied with this judgment appealed to the Ibadan No. 1 Grade ‘A’ Customary Court of Appeal in Suit No. CVA/8/61 (Exhibit 9). His appeal was dismissed and he lodged a further appeal to the High Court in Suit No. I/55A/62 (Exhibit A). That appeal too was dismissed “on the issue of partition.”

 

Following the death childless of one of the sisters -Hunmoani Iyowuawi in 1976, her own share of the estate that is 4 rooms and 2 shops, became subject of another litigation between the other and only surviving sister, Limota Iyowuawi (the present defendant/respondent) as plaintiff and Lamidi Segilola Iyowuawi (the present plaintiff/appellant) as defendant in Suit No. BI/57/1979 at the Ibadan City Grade ’B’ Customary Court whereby Limota claimed the “sharing and partition” of the estate of their sister Hunmoani. The court in that case gave the following judgment (Exhibit 10):

 

“To the plaintiff is shared the rooms marked E3 and E4 on the portion marked E on the plan attached to Ex. A while the rooms marked E5 and E6 are shared to the defendant. The shop annexed to buildings D marked E2 is shared to the plaintiff while the defendant gets the shop marked El. The vacant land between buildings D and F is divided into two halves with one half near building D given to the defendant and the other half near building F shared to the plaintiff.”

 

There was no appeal against this judgment.

 

In 1972, the Oganla family had in the High Court, Ibadan Suit No. I/81/ 72 sued the present parties before us and their late sister Hunmoani claiming

 

“1.     Possessing to the piece or parcel of land situated, lying and being at NW4/47 Lemomu Street, Ekotedo, Ibadan.

 

  1. The sum of two hundred pounds (£200) general damages for trespass committed by the defendants on the said land.

 

  1. An injunction restraining the defendants, their agents, servants and privies from committing any further acts of trespass on the said land.”

 

The case was dismissed whereupon the Oganla family appealed to this Court; the appeal was dismissed – see Exhibit 6.

 

The action leading to the present appeal is the latest in the series of action over the land in dispute.

 

With this background of the case, I shall now proceed to consider the issues raised in this appeal. The first of such issues and perhaps the most important, is the plea of res judicata raised by the defence. For in paragraphs 10 – 13 of the statement of defence the defendant averred as follows:

 

“10.   The Plaintiff’s mother did not build any house or structure on the land in dispute and it was the attempt of the Plaintiff to claim the said land exclusively for himself at the death of his mother Segilola in 1959 which led the Defendant and other children of Iyowuawi to institute action in 615/59 – Hunmoani Abike Bc 2 others versus Lamidi Iyowuawi.

 

  1. Judgment was delivered in the said suit on 19/12/60 and the property was partitioned by order of Court among the four children of Iyowuawi including the Plaintiff and the defendant.

 

12      The Defendant thereafter appealed against the judgment in 615/ 59 and his appeal was dismissed with costs by the Court of Appeal on 15th June, 1962 in CVA/8/61. Further, the parties in this suit were also the parties in suit No. BI/57/79 whose subject matter was also the land in dispute in the present suit and in which a further partition was ordered by the Court.

 

  1. The Defendant will contend at the trial that the Plaintiff is estopped per rem judicata from bringing the present action in view of the judgments referred to in paragraphs 10, 11 and 12 above.”

 

The learned trial Judge, after discussing in some detail the law relating to the plea of estoppel per rem judicatam went on to say:

 

“Applying the five principles of estoppel per rem judicatam earlier enumerated above to this case, I find as follows:

 

(i)      That the judgments relied on by the defence, i.e. Exhibits 9 and 10, are those pronounced by tribunals of competent jurisdiction – the Ibadan City No. 1 Grade ‘B’ Customary Court in respect of Exhibit 10 and the Ibadan No. 1 Grade `A’ Customary Court of Appeal in respect of Exhibit 9.

 

(ii)     That the parties in the proceedings were some of the same parties in Exhibits 9 and 10.

 

(iii)    That the judgments were final.

 

(iv)    That the decisions were in in rem.

 

As regards the 5th principle, i.e. the issue determined by the Customary Courts in Exhibits 9 and 10, 1 should briefly examine the contents of these exhibits, dealing first with Exhibit 9.

 

Exhibit 9 is the judgment of the Ibadan No. 1 ‘A’ Customary Court of Appeal on the decision of the Customary Court ‘B’ No.2, Ibadan. After a careful and exhaustive consideration of the arguments adduced for and against the 14 grounds of appeal canvassed before him, the learned President of the said Grade A’ Customary Court of Appeal dismissed the appeal of the present plaintiff in that case on 15th June, 1962. He also declared thus at pp. 2 to 3 of the judgment (Exhibit 9), inter alia:

 

“The president of the (lower) court, having heard both parties, found that the real issue for him to decide upon was whether the houses and landed property at N W4/47, Salvation Army Road, Ibadan, belonged to all the children of Eyiowuawi or to Segilola, the mother of Lamidi Eyiowuawi. The trial president, on the evidence before him, found that the property belonged not to Segilola personally, but to the 4 children of Eyiowuawi. He then proceeded to share it among them as requested.”

 

And, at p.7 of the said judgment, the learned President of the Grade ‘A’ Customary Court of Appeal also declared thus, inter alia:

 

“In conclusion I have to say that, though there may be some defects in form or misuse of words on the part of the trial President, there was sufficient evidence before him to justify his finding that all the houses situate at, and known as NW4/47, Salvation Army Road, Ibadan, belonged not to Segilola but to the 4 children of the late Eyiowuawi. With that finding of fact on the part of the trial Court, this Court is not prepared to interfere, nor will it disturb the (lower) Court’s sharing of the apartments among the parties. The lower court’s decision is hereby confirmed.”

 

There is evidence before me, which I accept and find to be true, that NW4/ 47, Salvation Army Road, Ibadan, is the same as NW4/47 Lemomu Street, Ibadan.

 

On the above finding of the learned President of the Grade ‘A’ Customary Court, Ibadan and on the totality of the evidence before the Grade `B’ Customary Court, Ibadan, which he meticulously reviewed, there is no illusion whatsoever that the issue of title had been previously and finally decided between the present parties and I have no decision of a superior court on appeal before me to the contrary. In fact, when in 1979, in Suit No. B1/57/79 (Exhibit 10), the present defendant again sued the present plaintiff for the partitioning of a part of the estate given to one of the deceased children of Eyiowuawi who died without an issue, the present plaintiff stated at p.3 of that proceeding thus, inter alia:

 

“The, plaintiff (meaning the present defendant) has right to share out of the estate in dispute as stated.”

(Brackets and parenthesis are mine.)

 

And the court found accordingly at p.5 of the record on 13th August, 1979.

 

In my considered judgment, therefore, the defence of estoppel per rem judicatam appears to me to be well-founded and hereby succeeds. The Plaintiffs claim would, therefore be dismissed for, in the words of Spencer-Bower and Turner in their book, “Res Judicata,” 2nd Edition, paragraph 458, at p. 380, “a plaintiff should not be allowed to take two bites at the same cherry.

 

It is the contention of learned counsel for the plaintiff/appellant that the learned trial Judge Was wrong in coming to this conclusion as, according to counsel, this plea was not available to the defendant. Mr. Ige for the defendant/respondent argued to the contrary.

 

In a very recent case – Bamishebi V Faleye (1987) 2 NWLR 51, Coker J.S.C. delivering the lead judgment of the Supreme Court restated the conditions that must be satisfied if the plea of res judicata is to succeed. He said at page 57 of the Report:

 

“In my view, in order to successfully establish the plea of estoppel per rem judicatam there must be a pronouncement and final decision on the particular issue. Put more precisely, there are three conditions which must be satisfied – the fact being relitigated must be

 

(1)     directly in issue in the case,

 

(2)     actually decided (by a competent Court) and

 

(3)     appearing from the judgment itself to be the ground on which it is based.”

 

The learned Justice of the Supreme Court then proceeded to cite, with approval, the dictum of Idigbe, JSC in Fadiora & Anor V Gbadebo & Anor (1978) 3 SC 219 at p.228 to the following effect:

 

“There is, however, a second kind of estoppel inter partes and this usually occurs where an issue has earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceeding between the same parties (or their privies); in these circumstances “issue estoppel” arises. This is based on the principle of law that a party is not allowed to (i.e. he is precluded from) contending the contrary or opposite of any specific point which having been once distinctly put in issue, has with certainty, and solemnity been determined against him. (See Outram V Morewood (1803)3 East 346). Issue estoppel applies whether the point involved in the earlier decision is one of fact or law or one of mixed fact and law. However, for the principle to apply, in any given proceedings, all the pre-conditions to a valid plea of estoppel inter partes or per rem judicatam must apply, that (1) the same question must be for decision in both proceedings (which means that the question for decision in the current suit must have been decided in the earlier proceeding), (2) the decision relied upon to support the plea of issue estoppel must be final (3) the parties must be the same (which means that parties involved in both proceedings must be the same) (per se or by their privies).”

 

In yet another recent case- Odjevwedje V Echanokpe (supra), Uwais, JSC delivering the lead judgment of the Supreme Court discussed the principle of estoppel per rem judicatam and differentiated between cause of action estoppel and issue estoppel. He said at pages 643-644 of the Report:

 

“I think it is appropriate at this juncture to discuss the general principle of estoppel by judgment otherwise known as estoppel per rem judicatam, before examining whether the principles apply to the present case. There are two kinds of estoppel by judgment, namely (1) cause of action estoppel and (2) issue estoppel. The nature of these was explained by Diplock, U (as he then was) in Thoday, (1964) p. 181 at pp, 197-198 as follows

 

….cause of action estoppel, is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, i.e. judgment was given upon it, it is said to be merged in the judgment….. transit in rem judicatam. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam. This, is simply an application of the rule of public policy,…… issue estoppel, is an extension of the same rule of public policy. There are many causes of action which can only be established by proving that two or more different conditions are fulfilled. Such causes of action involve as many separate issues…. as there are conditions (which the plaintiff must fulfill to establish his case); and there may be cases where the fulfillment of an identical condition is a requirement common to two or more different causes of action. If, in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction; either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfillment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was.”

 

It emerges from the foregoing that both the Court of Appeal and the trial court, in the present case, concerned themselves only with cause of action estoppel in determining the appellants’ case. They failed to advert their minds to issue estoppel. It was due to this confusion in their minds that they held that the land in dispute in the present case could not be the subject of a plea of res judicata or estoppel, since it was not the same as the piece of land adjudicated upon in 1942 and 1946.

 

The defence of issue estoppel had been pronounced upon by this Court in quite a number of cases, including Ladega V Durosimi (1978) 3 SC 91; Aro V Fabolude, (1983) 2 SC 75; Fadiora & Anor. V Gbadebo & Anor. (1978) 3 SC 219, Mogo Chiwendu V Nwanegbo Mbamafi, (1980) 3-4 SC 31 and Ezewani V Onwardi & Ors. (1986) 4 NWLR 27. But one common feature of these cases is that generally it is always the defendant that raises the defence of issue estoppel against the plaintiff. The reverse is hardly come by. However it has since been settled that although the plea of estoppel is a shield for the protection of a defendant, it can also validly be employed as sword by a plaintiff – see Mogo Chinwendu V Nwanegbo Mbamah & Anor. (1980) 3-4 S.C. 31 at p.48 and Ezewani V Onwordi, (1986) 4 NWLR 27 at p. 55.” 1

 

Ego, JSC in his own contribution, has this to say at page 653:

 

What then is an issue estoppel’? In a cause, more than one issue may arise. While some of the issues may be decided in favour of one party in the cause, the other issues may be decided in favour of the other party. This is different from the final determination of the cause. If the parties are the same, and the subject matter is the same, the determination of the whole cause against one party estops that party from raising the contrary before another court in another suit between the same parties and the same subject matter. It is said that there is estoppel per rem judicatam. If the decision is in regard to only some of the issues within the cause, there is issue estoppel.”

 

In the light of these and other authorities on this point of law, was the learned trial Judge right in upholding the defendant’s plea of res judicata? The series of actions between the plaintiff on the one hand and his half brother and sisters on the other hand commenced shortly after the death of plaintiffs mother, Segilola, in 1959 and plaintiff laid claim to all the houses on the land in dispute to the exclusion of the other children of their common father, Iyowuawi. This first action was eventually decided by the Ibadan Grade ‘B’ Customary Court. The judgment of that Court was not tendered in the present proceedings but the judgment of the Ibadan Grade ‘A’ Customary Court – CVA/8/61 decided on 15th June 1962 and which was an appeal from the Grade ‘B’ decision contained what was decided by the Grade ‘B’ Court. That judgment was tendered as Exhibit 9 in the court below and contained the following:

“The President of the Court, having heard both parties found that the real issue for him to decide was whether the houses and landed property at NW4/47, Salvation Army Road, Ibadan, belonged to all the children of Eyiowuawi or to Segilola, the mother of Lamidi Eyiowuawi. The trial president, on the evidence before him, found that the property belonged not to Segilola personally, but to the 4 children of Eyiowuawi. He then proceeded to share it among them as requested.”

 

The appeal to the Grade ‘A’ Court was at the instance of the present plaintiff (who was defendant in these earlier proceedings). The Grade ‘A’ Court in dismissing the appeal concluded thus:

 

“In conclusion I have to say that, though there may be some defects in form or misuse of words on the part of the trial President, there was sufficient evident before him to justify his finding that all the houses situate at and known as NW4/47, Salvation Army Road, Ibadan, belonged not to Segilola but to the 4 children of the late Eyiowuawi. With that finding of fact on the part of the trial Court, this Court is not prepared to interfere, nor will it disturb the Courts sharing of the apartments among the parties.”

 

On a further appeal to the High Court by the present plaintiff, that appeal, too, was dismissed. Morgan. J (as he then was) however in his judgment said at page 6 of Exhibit ‘A’:

 

“As regards ground 8 it appears that it relates to the finding of fact as to ownership of the property. I have held that there was no claim before the court for declaration of title to the land, that a finding of fact as to ownership of the land was not necessary to a decision on the claim for partition, and that the judgment itself made n6 formal declaration of title. If my interpretation of the legal effect of the judgment is wrong and if the judgment is regarded as having determined the issue of ownership to the land, I would quash the proceedings and order that the matter be reheard de novo by another customary court.”

 

Earlier on page 5 he had said:

 

“In my judgment as there was no claim for declaration of title to the property a bare finding of fact as to ownership of the property does not constitute a declaratory judgment as to title to the land. I hold that such a finding was not necessary to a determination of the claim before the trial court as amended which was for the partition of the property simpliciter. Furthermore, I hold that upon a true interpretation of the judgment of the trial court the judgment was for the partition of the property.”

 

It is these remarks that Mr. Ajakaiye has hung onto in submitting that estoppel per rem judicatam did not apply. With respect to learned counsel I think he is wrong. All that Morgan J appeared to be saying is that as declaration of a title was not claimed, the judgment of the lower courts could not be read as granting such a declaration. I am aware that he also said that a finding of fact as to ownership of the land was not necessary to a decision on the claim for partition, but what operated in the learned Judge’s mind all the time was the question of declaration of title which, however, was never made by both the Grade ‘B’ and Grade ’A’ Customary Courts. By his dismissing the appeal before him he must be taken to have affirmed the decision of the court from which the appeal came to his court and that court’s judgment decided the vital issue that the premises in dispute did not belong to Segilola and consequently not to the plaintiff alone but to all the 4 children of Iyowuawi. In view of the plaintiffs’ claim before the Grade `B’ Customary Court and defendant’s answer to it, decision on title of Segilola was necessary – indeed essential, to the determination of the case before it. There could be no partition among the 4 children of Yesufu Iyowuawi without a’ decision on his ownership of the property sought to be partitioned – see Duedu V Yiboe (supra).

 

There was yet another litigation between the present parties in suit No. B1157179 at the Ibadan Grade ‘B’ Customary Court. The present defendant/respondent was plaintiff in that action while the plaintiff/appellant was then the defendant. Plaintiff’s claim in that action was as follows:

 

“CLAIM: Sharing and Partition of an Estate.

 

The Plaintiff’s claim is for an Order of this Honourable Court for sharing and partition of an estate of Late Madam Hunmoani Iyowuawi died childless and intestate in the year 1976, the estate in question are 4 rooms and 2 shops shared to the said Late Hunmoani Iyowuawi, the estate is being and situate at NW4/47, Salvation Army Road, Ekotedo, Ibadan.”

 

Both parties gave evidence and in this evidence, the defendant (who is now the plaintiff/appellant before us) testified thus:

 

“My name is Lamidi Iyowuawi. I live at NW4/47, Imam Street Salvation Army Road, Ibadan, I am a watch repairer. I know the plaintiff, she is my paternal sister. Our father, Iyowuawi had died a long time. He had four wives each of whom had issues for him. After his death his estate was divided into four parts as shown as Ex. A. Our eldest sister, Hunmoani had died she was given a share of the estate then. It is her portion that is the subject matter of this case. Only the plaintiff and I are the only surviving issues of our father. Our other brother and sister Hunmoani, had died without having any issue. The plaintiff has right to share out of the estate in dispute as stated.”

 

This is a clear admission of plaintiff’s claim in that case and the trial court on the basis of this admission gave the judgment I have earlier in this judgment quoted. The effect of an admission of this kind was considered by Uwais, JSC in Odjevwedje V Echanokpe (supra) where he cited, with approval, a part of the Advice of the Privy Council in Hoystead V Taxation Commissioner (1926) AC 155 at pp 165-166, to the following effect:

 

“In the opinion of their Lordships it is settled, first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view of obtaining another judgment upon a different assumption of fact; secondly, the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of that fact. Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle. Thirdly, the same principle – namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken. The same principle of setting parties’ rights to rest applies and estoppel occurs.”

 

Having regard to the issue that has been finally decided between the parties in the 1959 Grade B Customary Court suit and affirmed on appeal and the plaintiff/appellant’s admission in B1/57/79 (Exhibits 9 & 10 in the court below), I am satisfied that the learned trial Judge rightly upheld the plea of res judicata raised by the defence in its pleadings. Plaintiff cannot now be allowed to relitigate the issue of the ownership of his mother Segilola to the land and premises in dispute, that issue having been determined in the 1959 Grade B Customary Court case and affirmed on appeal both by the Grade A Customary Court and the High Court. Nor can he now be allowed to resile from the clear admissions made by him in his evidence in Suit No. B 1/57/79 (Exhibit 10). Plaintiff s claims on that premise were rightly dismissed.

 

The next issue raised is whether the court below is right in dismissing plaintiffs claims on the merit. The learned trial Judge preferred the evidence of the defendant to that of the plaintiff and found as a fact that the land in dispute belonged originally to Iyowuawi, the father of the plaintiff and defendant and not to Segilola, the mother of the plaintiff. It has not been shown to my satisfaction that the learned Judge was wrong in so holding. This is more so when Segilola’s root of title relied on by the plaintiff is defective in two regards, to wit (a) the root of tide of Segilola’s lessors that is, the Bale and Council of Ibadan was not shown in the preamble to the lease nor even in plaintiffs statement of claim. If anything, Exh. 6 tendered by the plaintiff shows that Oganla family were the original owners of the land; and (b) the lease given in 1925 was for a period of 20 years; there is no evidence that it was ever renewed. Thus it can no longer avail the plaintiff in proof of his title to the land in dispute, that is, if the original lease was valid.

 

It was contended by Mr. Ajakaiye for the plaintiff/appellant that what was partitioned are the houses on the land and not the land itself. This contention cannot be right. I agree with the learned trial Judge that the maxim quidquid plantotur solo, solo cedit applies to vest the land on which a particular house shared among some of the children in those children as tenants in common. On the evidence of the plaintiff about partition the claim for trespass must obviously fail as he cannot be considered to be in exclusive possession of the land in dispute.

 

The practice of joining a claim for possession with a claim for trespass had been criticized by the Supreme Court in Aromire & Ors. V Awoyemi (1972) 1 All NLR (Part 1) 101, 108-109 as the two claims are contradictory in terms. In that case the Supreme Court per Coker, JSC said:

 

“We had already set out the claims of the plaintiff as on his writ – damages for trespass, recovery of possession and a perpetual injunction. It is pertinent at this juncture to observe that the claims as appearing on the summons are self-contradictory. A claim in trespass pre-supposes that the plaintiff is in possession of the land at the time of the trespass. A trespasser cannot claim to be in possession by the mere act of entry and clearly a plaintiff in lawful possession at the time still remains in possession despite a purported eviction by a trespasser. On the other hand a claim for recovery of possession postulates that the plaintiff is not in possession at the time of the action, that he was once in possession but is at that time seeking to be restored to possession of the land.

 

Hence, in the present case the claims for trespass and for recovery of possession should not have been put together as one postulates that the plaintiff was not in possession whilst the other suggests that he was. Part of the submission of learned counsel for the appellants before us is that the plaintiffs writ postulates that he was not in possession at the time of the action as otherwise he would not be suing to recover possession.”

 

In conclusion, I am of the view that even on the merits of this case the plaintiff cannot succeed and his claims were rightly dismissed by the learned trial Judge.

 

In the net result, this appeal fails and it is hereby dismissed by me. I affirm the judgment of the court below and award the costs of this appeal which I assess at N250 in favour of the defendant/respondent.

 

OMOLOLU-THOMAS, J.C.A.:

I have been privileged to read the draft of the judgment of my brother Ogundare, J.C.A. just read. I agree that the appeal is lacking in merit and I also dismiss it and subscribe to the order as to costs.

 

SULU-GAMBARI, J.C.A.:

I have had the privilege of reading in advance the judgment just read by my learned brother, Ogundare, J.C.A. I entirely agree that this appeal fails and it is accordingly dismissed with costs as assessed in the lead judgment.

 

Appeal Dismissed

 

 

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