3PLR – CHIEF OYELAKIN BALOGUN V. PASTOR MOSES OLU AFOLAYAN

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]

CHIEF OYELAKIN BALOGUN

V.

PASTOR MOSES OLU AFOLAYAN

COURT OF APPEAL

[IBADAN DIVISION]

3PLR/2001/76  (CA)

 

OTHER CITATIONS

45 WRN 48

BEFORE THEIR LORDSHIPS

SUNDAY AKINOLA AKINTAN, JCA (Presided)

DALHATU ADAMU, JCA (Delivered the leading judgment)

FRANCIS FEDODE TABAI, JCA

 

REPRESENTATION

S.A. Onifade Esq. – for the appellant

G.A. Sunmonu Esq. – for the respondent

MAIN ISSUES

PRACTICE AND PROCEDURE – APPEAL – Irregularity in procedure and admission of document – whether a party who adopted or acquiesced in same during trial can be heard to complain on appeal.

JUDGMENT AND ORDER -Default judgment – validity and effect of.

LAND LAW – Title to land – five ways of proving ownership of title to land – whether any one of the ways is superior to the others.

PRACTICE AND PROCEDURE – Irregularity in procedure and admission of document – whether a party who adopted or acquiesced in same during trial can be heard to complain on appeal.

RES JUDICATA – Estoppel per rem judicatam – when can be raised by a plaintiff.

RES JUDICATA – Issue estoppel – conditions for a successful plea.

RES JUDICATA – Issue estoppel – effect of a successful plea of same on the jurisdiction of the court. – nature of – rationale for same.

 

DALHATU ADAMU, JCA. (Delivering the leading judgment): The plaintiff/appellant (hereinafter simply called “the appellant”) instituted an action at the Oyo State High Court, Ibadan against the defendant/respondent (also hereinafter simply called “the respondent”) claiming for –

 

(i)      A sum of one hundred naira (N100.00) being damages for trespass committed by (the respondent) on (the appellant’s) land at Olopeworoko near Ibadan Grammar School, Ibadan, Oyo State when he built a house on the land in dispute sometime in 1995 and now lives therein.

 

(ii)     An order of perpetual injunction restraining (the respondent), agents, servants and or privies from further entering on the parcel of land in dispute and which is shown on plan No. KESH/OY/167/97/62.

 

On the above claims pleadings were ordered, filed and exchanged. The appellant filed a statement of claim and a reply to the statement of defence while the respondent filed a statement of defence. The case proceeded to hearing at the end of which learned counsel for the parties addressed the court. In its judgment delivered on 26/3/98, the trial court dismissed the appellant’s claims in their entirety. The appellant who was aggrieved by the decision of the trial court appealed against it in the present appeal (as per the notice of appeal on 17/4/98).

 

In the said notice of appeal, eight (8) grounds of appeal (with their particulars) were filed by the appellant out of which six (6) issues for determination are distilled and formulated in the appellant’s brief of arguments which was filed on 7/9/98 and adopted at the hearing of the appeal. The said issues are as follows:

 

“4.     ISSUES FOR DETERMINATION

 

4.01   Whether the plea of issue estoppel was sufficiently pleaded and canvassed, having regard to the statement of claim, reply to the statement of defence and materials before the court (Ground 3).

 

4.02   Whether the plaintiff (appellant) should prove title and possession each time he sues any person found on the land in exhibit Pl, and who claims by virtue of exhibit D.14, which was in issue in the previous case and which was decided in his favour (Ground 4).

 

4.03   Having regard to the fact that the defendant in the previous and present suit, derived their ‘title from the same source, are they not co-defendants? and will the former one not res judicate? (Grounds 2 and 8).

 

4.04   Whether the evidence of the 3rd DW, which was not pleaded was rightly admitted and used in this case, despite the caveats made in address and in a letter dated 16th of February, 1998 (Ground 5).

 

4.05   Whether exhibit D. 14 validly granted any interest to the grantees or purchasers named therein, when it is void ab initio, for lack of the family head being privy to its execution and when the vendors therein only sold their personal property and not Arigbede family property. (Ground 6)

 

4.06   Whether exhibit F 11 was to prove title or other purpose as was pleaded by the plaintiff (appellant) (Ground 7).”

 

In the respondent’s brief which was filed on 10/12/98 and also adopted at the hearing of the appeal, it is expressly stated (at paragraph 3 thereof) that the issues formulated by the, appellant (as reproduced above) are also adopted by the respondent. Before dealing with the issues however, it is worthwhile to state the facts of the case as presented by both parties at the trial court. Although both the appellant and the respondent have given two different accounts or version of the facts of the case (in their respective briefs) when two versions are married together the resultant facts of the case can be summarised as follows:

 

One Aigbede settled on, or acquired by conquest many years ago, a large area of land at Olopeworoko, Molete, Ibadan. After his death, the land devolved to his children who held it as a family property as the Aigbede family land. The Aigbede family exercised acts of ownership and possession of their family land until 1958 when its accredited representatives sold part of the land to Saka Owoade and Emiola Amusa Adeleke under a deed of conveyance registered Land Registry, Ibadan (exhibit DW 14). The appellant however claims that the grant which was made under native law and custom was in 1976 and was made to him. The said grant is evidenced by a purchase receipt (exhibit P.11). The large parcel of land so disposed of by the Aigbede family was later cut or divided into plots in a layout known as Akorede layout. The land in dispute is plot No. 72 which the defendant had bought from Emiola Amusa Adeleke one of the grantees of the Aigbede family. The appellant on his own part relies on earlier suits particularly suit No. 1/411/93 (exhibit P5) in which he sued one Alhaji Adeleke & 9 ors in which a judgment in default was entered in his favour on 12/10/95.

 

The dispute that led to the present suit started when the appellant met the agent of Alhaji E. A. Adeleke surveying the land in dispute with a view to alienating it to his (i.e. Adeleke’s) adjacent land. The respondent who claims to have bought the land from Alhaji Adeleke and whose attention was brought to the earlier judgment in exhibit 5 insisted on his ownership of the land and continued with acts of trespass in it hence the appellant instituted the present action against him. The respondent in proving his title (and version) at the lower court relied on exhibit 14 and the fact that the Oyo State Government had in 1995 acquired part of the land excluding plot 72 (i.e. the land in dispute) from Chief Saka Owoade and Emiola Amusa Adeleke (the respondent’s vendor). As another evidence of his title, the respondent also asserted that after he had earlier bought the land in dispute from one Saka Adewale and he commenced building on it, he was challenged by another person by name Rashidi Bolaji who claimed to have bought it from Chief Emiola Adeleke. The said Chief Adeleke confirmed the sale to Rashidi Bolaji as a result of which the respondent had to repurchase the land from Rashidi Bolaji before he was allowed to continue with his building. It was after that incident and when he started roofing his building in 1976 that the appellant challenged him again claiming ownership of the land which claim led to the present suit by the said appellant.

 

Issues 1 and 2 are argued together under both the two briefs of argument. I will adopt the same approach in dealing with them in this judgment. Under the two issues, it is submitted in the appellant’s brief that the appellant sufficiently pleaded issue estoppel in paragraph 9 of his statement of claim and in paragraphs 2 and 3 of his reply to statement of defence in the previous suit No. 1/411/93 (exhibit P5). This is said in the brief to be contrary to the holding of the learned trial Judge at page 60 of the record wherein he stated that the issue estoppel was not “seriously canvassed before the trial court”. Reference is made to Adeleke v. Akanji (1994) 4 NWLR (Pt. 341) 715; Jackson v. Goldsmith (1950) 81 CLR Fadiora v. Gbadebo (1978) 1 LRN 97 at 101 wherein it was held that the court is permitted to look at the pleadings in the previous suits in order to determine the applicability of the plea of issue estoppel. Thus it is submitted that it is the duty of the party who invokes or relies on the plea of issue estoppel to tender the materials which the court must look into in determining the plea of issue estoppel. Such materials include the pleadings, the exhibits and the judgment in the previous suit – see Adeleke v. Akanji (supra) cited in support of the submission).

It is contended in the brief that the appellant as plaintiff in the present suit who sought to rely on issue estoppel had complied with the above principle by tendering the statement of claim, the proceedings and address as well as the judgment in suit No. 1/411/93 which were admitted and marked respectively as exhibits P2, P4 and P5 by the trial court. The appellant’s brief consequently urges us to reverse the erroneous and perverse finding or holding of the learned trial Judge that there were no sufficient materials to sustain the plea and to hold that there were enough of such materials which are listed in the brief as exhibits P4, P5 and P7 and the holding of the court in exhibit P5 that he was satisfied with the evidence adduced by the plaintiff by which he has discharged the burden of proof lying upon him”.

 

On the validity of exhibit P5 being a default judgment, it is submitted in the appellant’s brief that a default judgment is valid until it is set aside and as such it can be the basis of the plea of either res judicata or issue estoppel – see Chief Winoko Ekpe v. Chief Antai (1944) 10 WACA 19; Adedire Ogunleye v. Gabriel Arewa (1960) WRNLR 9 at 11; Odume v. Nnachi (1964) 1 All NLR 329; and Ajibade v. Mayowa (1978) 9-10 SC 1 at 7 cited in the brief in support of the submission. It is also submitted that if the learned trial Judge had properly looked at and investigated the materials tendered before him in support of the plea of the issue estoppel raised in the case he would have found that the plea was proved and would not have insisted that the appellant must still prove the conditions of acquiring title to land under native law and custom. It is pointed out that that issue was raised in exhibit P5 and was decided in favour of the appellant (as plaintiff therein). It is further submitted in the brief that the appellant at the trial court did not also have to prove the fact of his grant or purchase from his grantors’ family or payment of the purchase price and handing over of possession to him which issues were all determined in his favour in exhibit P5. In other words the issues were said to be pleaded in exhibit P5 and were not challenged or controverted before the default judgment was entered in favour of the appellant (as plaintiff) see Obi Ezewani v. Obi Onwordi & Ors. (1986) 4 NWLR (Pt.33) 27 cited in the brief in support of the submission. This court is finally urged, in the brief to uphold the appellant’s plea of issue estoppel and to allow the appeal under the two issues as argued above.

 

In reply to above submissions under the two issues, it is submitted in the respondent’s brief that in order to succeed in his plea of issue estoppel, the appellant has to fulfill certain conditions and his failure to do so is fatal to his case. It is pointed out that the judgment in exhibit P5 upon which the appellant heavily relied in his plea of issue estoppel was delivered on 12/10/95. At page 1 (paragraph 3) of the said judgment the learned trial Judge Hon. Justice Olu Ariwoola commented that the appellant applied to withdraw the case against the said 1st and 7th defendants. As a result of the withdrawal of the case against the said 1st and 7th defendants, their names were struck out. Thus it was only the case against the 2nd, 3rd – 6th, 8th and 9th respondents that went to trial on 21/6/95. It is also pointed out that the respondent in the present appeal was not a party in the proceedings in exhibit P5. Moreover, Chief Emiola Amusa Adeleke in whose favour exhibit DW.14 (the deed of conveyance) was executed with Chief Saka Owoade (who died long ago) had his name struck out as the 1st defendant in exhibit P5. Consequently, it is pointed out in the respondent’s brief that the case in exhibit P5 went to trial with neither the grantor nor the privy of the present respondent who is thus not affected by the judgment in the said exhibit P5. It is expressly stated at page 4 (paragraph I) of the said exhibit P5 that “In the circumstances, judgment is hereby entered in favour of the plaintiff but against the 2nd, 3rd, 4th, 5th, 6th, 7th, 8th and 9th defendants jointly and severally for the sum of N400.00 being damages for trespass committed by the defendants on the plaintiff’s land at Olopeworoko, near Ibadan Grammar School, Ibadan.’’

 

Reference is also made in the brief to the evidence of Rashidi Bolaji (at page 24 lines a 20-25 of the record) that he sold the land in dispute to the respondent. The appellant did not sue the said Rashidi Bolaji in suit No. 1/411/93 exhibit P5. He (i.e. the respondent’s vendor did not therefore have the opportunity to defend his title as against the appellant’s claim in exhibit P5 – see Ogundaini v. Araba (1978) All NLR 165 at 183 referred to in the brief in support of the argument. It is further pointed out that the appellant has agreed in his brief (at page 5 paragraph 2 thereof) with the finding of the learned trial Judge that none of the parties offered a submission on the plea of issue estoppel which was pleaded. It is submitted that even if the plea was considered the appellant cannot succeed on it for the reasons mentioned above. This court is now called upon in the respondent’s brief to consider the circumstances of the case before the trial court and decide on whether or not under the material at the disposal of the trial court, the respondent is caught by the equitable doctrine of issue estoppel. It is argued that exhibit P5 was a default judgment in which neither the respondent his vendor, nor the vendor of his vendor was made a party. The judgment was also not expressly made applicable or binding on them. Furthermore, one of the parties in the said exhibit P5 by name Mary Hassan subsequently got the judgment in exhibit P5 set aside as against her for lack of or failure of service. Chief E. A. Adeleke, the vendor of Rashidi Bolaji who in turn sold the land in dispute to the respondent having divested himself of title in the entire land would have nothing to defend in suit No. 1/411/93 (exhibit P5) because he had no further interest. It is contended that it was in realization of this point that the appellant decided to withdraw the case against the said Chief E. A. Adeleke in the proceedings that led to exhibit P5. Thus he was only to be called as a witness by any of the defendants whose title was put in issue in the said suit – see Amuda v. Ajobo (1995) 7 NWLR (Pt. 406) 170 cited in the brief in support of the proposition. Finally, this court is urged in the respondent’s brief to dismiss grounds 3 and 4 of the grounds of appeal on which issues 1 and 2 are predicated.

 

From the above submissions under the two briefs on the two issues under consideration, the question raised is on the application of “issue estoppel” to the present case at the trial court. It is interesting to observe at the onset that this is one of the rare cases in which the plea of estoppel was raised or invoked by the plaintiff rather than the defendant. In other words it is an unusual situation where a plea of estoppel was used as a sword by the plaintiff rather than as a shield by the defendant. On this point the law is settled that the plea of estoppel per rem judicata is generally not available to the plaintiff as a basis of his claim except by way of a reply to a defence raised by the defendant in a statement of defence. This is so because by invoking the plea a plaintiff will be seen as contradicting himself and as a self defeating measure in which he seeks to oust the jurisdiction of the court in which he has filed his claim. It is however clear from the above observation that although the plea of estoppel is a shield for the protection of the defendant, it can also be validly employed or invoked as held by our superior courts (in an appropriate case) as a sword by the plaintiff – See Odejevwedje v. Echanokpe (1987) 1 NWLR (Pt. 52) 633 at 644; Ezenwani v. Onwordi (1986) 4 NWLR (Pt. 33) 27; Yoye v. Olubode (1974) 10 SC 209; Ike v. Ugboaja (1993) 6 NWLR (Pt. 301) 539 and Okukuje v. Akwido (2001) 3 NWLR (Pt. 700) 261 at 337, 10 WRN 1. The appellant’s reliance on issue estoppel in the present case is consequently covered or justified in view of the above principle of law. An issue estoppel (as raised in the present case) is one of the species or types of estoppel by record or per rem judicatam and is otherwise called estoppel inter parties which usually occurs where an issue has earlier on been adjudicated upon by a court of competent jurisdiction and the same issue incidentally comes up again in any subsequent proceedings between the same parties or their privies. The reason behind the rule (or its rationale) is based on the public policy rule that there should be an end to litigation and on the principle that a party is not allowed to contend the contrary or the opposite of any specific point which having been once distinctly put in issue, has with certainty and solemnity been determined against him- see Fadiora v. Gbadebo (1978) 3 SC 219; Odua v. Nwanze (1934) 2 WACA 98; Cardoso v. Daniel (1986) 2 NWLR (Pt. 20) 1; Arubo v. Aiyeleru (1993) 3 NWLR (Pt. 280) 126; Okukuje v. Akwido (supra) at p. 316 of the report); Odonigi v. Oyeleke (2001) 6 NWLR (Pt. 708) 12 at P. 27, 11 WRN 64. There are certain conditions , for the application of an issue estoppel. These are:-

 

(a)     the same question was decided in both proceedings;

 

(b)     the judicial decision which creates the estoppel must be final; and

 

(c)     the parties to the judicial decision or their privies were the same as the parties or their privies to the proceedings in which the estoppel is raised.

 

See Fadiora v. Gbadebo (supra); Bamishebi v. Faleye (1987) 2 NWLR 51; Iyowuawi v.. Iyowuawi (1987) 4 NWLR (Pt. 63) 61 at 70 – 71; Halburys Laws of England 4th edition, vol. 16 paragraph 1530 and Ogbogu v. Ndiribe (1992) 6 NWLR (Pt. 245) 40.

 

In applying the above principles and rules on issue estoppel to the present case I will begin first by considering the truth or otherwise of the finding of the learned trial Judge (at page 60 of the records) to the effect that none of the parties addressed him seriously on the application of the issue estoppel. On this point, I found that the application of estoppel per rem judicatum estoppel was pleaded in paragraphs 2 to 4 of reply to the statement of defence filed by the appellant. The appellant also gave evidence as PW 4 and testified on the judgment in suit No. 1/411/93 in which judgment was given in his favour which resulted in admitting the judgment as exhibit P5 (tendered through PW2 (the registrar of High Court Iyaganku) see pages 16 and 20 of the record. Also learned counsel to both parties duly addressed the court on the application of issue estoppel to the case – see page 29 of the record on defence address and page 31 on the address of the plaintiff’s counsel. Furthermore, the learned trial judge also devoted a substantial part of his judgment in considering the application of issue estoppel to the case – see pages 57 (line 27) to 62 (line 2). Thus, the finding that none of the parties addressed him on the issue estoppel or no such issue was seriously canvassed by either of the parties is erroneous. It is pertinent also to note that the appellant also tendered exhibit P2 – P7 which are certified true copies of the appellant’s statement of claim, motions on notice, the proceedings and the judgment all relating to suit No. 1/411/93 upon which he relied in his assertion on the application of issue estoppel to the case. It is my humble view that these are all the materials required or needed by the court for the establishment or determination of the plea of estoppel. In Okukuje v. Akwido (supra) the Supreme Court restated the law on the point when it stated thus:

 

“It cannot be over-emphasised that in the determination of whether the plea of estoppel per rem judicatam or whether the parties, the issues and the subject matter in both the previous and present actions are the same court is permitted to study the pleadings the proceedings and the judgment in previous suits. The court may also examine the reasons for the judgment and other relevant facts to discover what in fact was in issue in the previous proceedings. See Fadiora v. Gbadebo (supra). It may therefore be said that it is a question of whether the parties and their privies, the facts in issue and the subject-matter of the two cases are the same.”

 

See also Odonigi v. Oyeleke (supra) where the apex court held that even the proceedings in a customary arbitration is relevant and sufficient enough for the purpose of establishing or proving the plea of estoppel (see pages 30 – 35 of the report). In view of the fact that the appellant as plaintiff had adequately pleaded the issue estoppel and tendered the relevant materials for the establishment of proof of his plea which were admitted by the trial court and marked exhibits P2 – P7, and above all he and the respondent’s counsel both addressed the court on the issue, it is clearly wrong for the learned trial judge to hold or find otherwise in his judgment as he did at page 60 of record. The full text of passage in the judgment containing the erroneous finding or holding and which runs contrary to the above dictum of the Supreme Court runs as follows:-

 

“This is the position of the law and even so held in the Osunde v. Ajamogun case when my lord the Honourable Justice Ogundare JCA, held that the plea of issue estoppel is a different matter. It is available to either party as Oputa JSC observed in Are v. Fabolude (1983) 2 SC 75. However a plaintiff that intends to rely on such issue estoppel ought to properly plead same succinctly and distinctly so as not to take the other party by surprise of what issue which had previously been decided which ought not to be relifigated upon. This is not the case here. No such issue was seriously canvassed before me.”

(Italics supplied).

 

With respect to the learned trial judge and in view of my above consideration, while the statement of the law credited to the learned Justices of the Supreme Court is the correct position of the law, his holding that the issue estoppel was not sufficiently pleaded or canvassed is a misstatement and a serious error which has led to a miscarriage of justice against the appellant.

 

As regards the respondent’s argument that the judgment in exhibit P5 was a default judgment which should not be relied upon for the purpose of a plea of res judicata or issue estoppel, I am of the view that although this argument was not raised at the trial court and does not also arise from the judgment of the trial court, it needs or requires consideration or comments. Apart from its being a fresh issue in this appeal, the argument also has no merit because the respondent’s counsel who raised it was present at the trial court on 10/12/97 when the judgment in suit No. 1/411/93 was tendered for admission and he did not object to its admission when it was admitted by the court amongst other documents as exhibit P5. The proceeding as recorded on that day reads:

 

“Court:- Not being objected to the certified true copies of the documents tendered by the witness are herewith admitted in evidence and marked as follows:- …

 

  1. Certified true copy of the judgment in suit No. 1/411/93 between Chief Oyelakin Balogun v . Sariyu Salami & 7 ors delivered by Honourable Justice Olu Ariwoola on the 12th day of October, 1995 is hereby admitted in evidence and marked as exhibit P5.” – see pages 17-18 of the record.

 

If the respondent’s counsel wanted to criticize or object to the judgment in question he should have done so at that time but he failed to do so. Even in his final address on the issue of estoppel, Mr. Sunmonu did not raise the argument that the judgment in exhibit P5 was a default judgment – see-page 29 of the record. It is trite that a party cannot take advantage of an irregularity of procedure which he adopted or acquiesced during the trial and cannot be heard thereafter to complain against it on appeal. Nor will a party who did not object to the admission of a document during the trial be heard subsequently to complain against its admission on appeal See Akhiwu v. The Principal Lotteries Officer, Mid Western State (1972) All NCR (Pt. 1) 229; Noibi v. Fikolati (1987) 1 NWLR (Pt. 52) 619; C.F.A.O. v. Onitsha Industries Ltd. (1932) 11 NLR 102; Colonial Development Board v. Kamson (1955) 21 NLR 75; Ayanwale v. Atanda (1988) 1 NWLR (Pt. 68) 22, Sande v. Abdullahi (1989) 4 NWLR (Pt. 116) 387; Okulade v. Alade (1976) 1 All NLR (Pt. 1) 67 at 73-74 and Dina v. New-Nigerian Newspapers Ltd. (1986) 2 NWLR (Pt. 22) 353 at 363. Although a judgment in default can be criticized for not being given on the merit and should not ordinarily be the basis for a declaration especially on land matters, the reason behind that proposition is because the parties have not been heard or have not been given the opportunity of being heard with the result that the case cannot be said to have been decided on its merits – see Usikaro v. Itsekiri Land Trustees (1991) 2 NWLR (Pt. 17-2) 150; Bello v. Eweka (1981) 1 SC 101; Motunwase v. Sorungbe (1988) 4 NWLR (Pt. 92) 90 and Okedare v. Adebara (1994) 6 NWLR (Pt. 349) 157. In the instant case, although the judgment in exhibit P5 was given in default of pleadings by the defendants, he said defendants were duly served with the writ and the statement of claim (though by way of a substituted service) and they decided not to appear or to file their defence. This was noted and considered by the court which allowed the plaintiff/appellant to proceed and prove his case. Thereupon the appellant gave evidence and called two witnesses who testified in favour of his claims. Thus although it was a judgment in default, the proper procedure was followed and the appellant had proved his claims before the judgment (in exhibit P5) was given in his favour. It is trite that a default judgment like all other judgments of the court is a valid and effective or subsisting judgment until it is set aside and can be a basis for the application of estoppel by record (whether res-judicata or issue estoppel) – see Kok Henna v. Leon Chem Kweng Ltd. (1964) AC 482; Ekpe v. Ankai (1940) 10 WACA 19; and Odu v. John Holt & Co. (1950) 19 NCR 127. I do not therefore see the reason why in the present case the respondent’s counsel emphasises in his brief the issue of exhibit P5 being a default judgment and cannot therefore be the basis for the application of issue estoppel. This is a clear misconception of the law on the point on the part of the said counsel.

 

In a similar vein or trend, I find the respondent’s argument that the judgment in exhibit P5 should not operate against the respondent because Alhaji (or Chief) E. A. Adeleke whom the said respondent acknowledged as the original purchaser of the larger portion or parcel of the land (including the land in dispute) from the Aigbede family which was the acclaimed original owner of the said land was not a party to the proceedings in the said exhibit P5. This argument of the respondent’s counsel is also a serious misconception of the law and a distortion or misrepresentation of the true facts of the case. Although I am not reviewing or hearing an appeal against the proceedings leading to the judgment in exhibit P5 which is still subsisting since there has been no appeal against it, I consider it noteworthy to go through the materials (or exhibits) tendered by the appellant and admitted by the trial court in order to find out the true position. In both the said exhibits and in the record of the trial court, it is very clear that the said Alhaji (or Chief) E.A. Adeleke was originally the first defendant in the proceedings leading to exhibit P5. However, he applied to the court through his counsel C.J. Chukura Esq., to have his name struck out (see exhibit P3). It is not clear from the record or materials whether this application was granted or not because the ruling on the said motion was not tendered or admitted by the trial court. But assuming that he was successful in the said motion and had his name-struck out by the court what is the legal effect of that on application of issue estoppel?

 

I am of the view that whether he (Alhaji E. A. Adeleke) was a party or not in the proceedings in exhibit P5, he is still bound by the judgment and the said judgment can be used as an estoppel against him or his successors in title. This is because the principles or conditions for the application of issue estoppel as we have seen above are that in both the previous and the current proceedings leading to the two judgments the parties or their privies must be the same. Thus being a privy in title to the present respondent, Alhaji E. A. Adeleke is bound by the judgment in exhibit P5. The term “privy” has been interpreted to mean a person having a legal interest or privity in any action proceeding or property. The term has also been classified as follows:-

 

(a)     privies in blood such as an heir or ancestor;

 

(b)     privies in representation such as an executor, a testator or an administrator and an interested person; and

 

(c)     privies in estate such as a grantor and a grantee or a lessor and a lessee – See Coker v. Sanyaolu (1976) 9 – 10 SC 203; Faleye v. Otapo (1995) 3 NWLR (Pt. 381) 1.

 

It is also settled that the term “parties” includes not only those named in the suit or in the record of proceedings but also those who had direct interest in the subject matter of the dispute and had an opportunity to attend the proceedings and to join as a party in the suit, as happened in the instant case in relation to Alhaji E. A. Adeleke, but chose not to do so but were content to stand by and see the battle in which their interest is directly in issue fought by somebody else or let witnesses testify as to their title to or interest in the subject matter of the action. It is also trite that if a person was content to stand by and see his battle fought by someone else in the same interest instead of applying to be joined as a defendant in the case, he is bound by the result in that case and estopped from reopening the issue or issues determined in that case – Okukuje v. Akwido (supra) at pages 284 and 321 of the report); Odua Esiaka & Ors. v. Vincent Obiasogwu & Ors. (1952) 14 WACA 178 at 180; Roden v. London Small Arms Co. LJ, QBD 213. Thus the above principle applies to Alhaji E. A. Adeleke whether he was a party or not in the proceeding leading to the judgment in exhibit P5. All other persons who are privies in estate to the respondent (including his immediate vendors Saka Adewale and Rasidi Bolaji as well as the respondent himself) are also bound by the judgment in exhibit P5 because it is apparent from the pleadings and evidence that they derived their title through the said Alhaji E. A. Adeleke. It is pertinent at this point to note that the respondent was duped by the said Alhaji E. A. Adeleke who may be regarded as a land speculator and a fraudster as a result of which illegal transaction he (i.e. the appellant) had to pay twice the purchase price of the land. Although this is unfortunate and sympathetic, he too is blameworthy by not taking investigative measures to make sure that the land he purchased had no encumbrance and the title deeds or documents in respect thereof were genuine – he is caught by the maxim caveat emptor: Let the buyer beware.

 

As for the reasons given by the learned trial Judge for holding that the issue estoppel pleaded or raised by the appellant in the case was in applicable, I am of the view that the learned trial Judge whether deliberately or otherwise misapplied the law on issue estoppel as set out above. On the uniformity or unity of issues in both the previous and present cases, instead of adopting a very simple approach to the matter, he went on his own voyage and based on an English decision which he cited Thoday v. Thoday (1964)1 All ER 341 at 352 and formulated a “fact estoppel” which he said is not one of the species of estoppel per rem judicata and which therefore has different conditions for its application as estoppel. At the end of his “voyage of discovery” or “voyage of formulation” the learned trial Judge ended with the following wrong finding or conclusion:-

 

“The application of the above principal (sic) to this case is this. This suit before me is for trespass and injunction and the issue of title comes into focus. In determining title, pleadings must be examined, in the pleadings the plaintiff pleaded sale under native law and custom from a family the evidence of grantor or witness who actually saw the symbolic handing over is a fact to be established. If such fact is established and I find that it was this is a fact estoppel which ensures a success of the case as to title. Such findings of fact would not operate per rem judicatem on the issue of title in the subsequent proceedings, but the said judgment can be a basis of exercise of act of ownership, so therefore the same plaintiff in another suit filed thereafter sued another defendant for trespass and injunction the judgment to be given would again depend on the determination and consideration of pleadings and evidence on the fact of sale under native law and custom, the earlier judgment could only be the basis of the exercise of acts of ownership.”

 

The above incoherent passage from the judgment of the learned trial Judge is clearly a misstatement of the law and a misrepresentation of what actually transpired in the court during the proceedings in exhibit P5. It has also overlooked or disregarded what the appellant’s claims were in both the proceedings in exhibit P5 and the present suit. It is pertinent to state the correct position that in both suits the appellant’s claims were for trespass and injunction. Further, it is very clear contrary to what was held by the learned trial Judge that from both his pleadings and the testimonies of himself and his 2nd witness (PW. 2) in exhibit P5, the appellant asserted his title to be derived through a purchase of the land under native law and custom from Aigbede instead of through acts of ownership. In any case I do not see any difference whether the plaintiff base is his claim of title on the traditional grant (i.e. native law and custom) or through acts of ownership as sought to be distinguished by the learned trial Judge in his above quoted passage of the judgement. It is trite that it is a cardinal principle of our land law (in our Nigerian law as opposed to U. K. law) that there are five ways of proving ownership or title to land and each of the five ways is independent of the others and can suffice on its own in proof of ownership or title to the land in dispute. These ways are:-

 

(a)     by traditional evidence or evidence of traditional grant or history;

 

(b)     by the production of document of title duly authenticated and executed;

 

(c)     by acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership;

 

(d)     by acts of long possession and enjoyments and

 

(e)     by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.

 

See Idundun v. Okumagba (1976) 9-10 SC 227; Piaro v. Tenalo (1976) 12 SC 31; Mogaji v. Cadbury Nig. Ltd (1985) 2 NWLR (Pt.7) 393; Ife v. Essien (1985) 5 NWLR (Pt. 41) 378; Onibudo v. Akibu (1982) 7 SC 60; DA Costa v. Ikomi (1968) 1 All NLR 394; and Onwugbufor v. Okoye (1996) 1 NWLR (Pt. 424) 252.

 

Thus from my above consideration of the decisions of our superior courts there is no distinction or superiority of any of the above methods of proving ownership of land as wrongly sought to be made by the learned trial Judge in his judgment. In addition to the error he made on the issues involved in the two cases, the learned trial Judge also wrongly held that Alhaji E. A. Adeleke was not a privy in estate with the present respondent contrary to my earlier holding in this judgment which is based on the decision of our superior courts on the definition of the term “privy”. Thus he erroneously held and gave his reason that Alhaji E. A. Adeleke was not a party in the suit No. 1/411/93 (see page 61 of the record). In the result of my consideration of issues 1 and 2 together, the said issues and their corresponding grounds of appeal (grounds 3 and 4) must be resolved in favour of the appellant and against the respondent. I hereby accordingly so resolve them. For the same reason issue 3 of the appellant’s brief which is also on res-judicata and its relevant grounds 2 and 8 are also hereby resolved in favour of the appellant and against the respondent.

 

The success of the three issues on issue estoppel or res-judicata must affect the remaining three issues (i.e. issues 4, 5 and 6) of the appellant’s brief which are merged or sub-merged into the former. It is trite that a successful plead of res judicata strips the jurisdiction of the court in which it is raised and a fortiori a plea of issue estoppel will also oust the jurisdiction of the said court in relation to the issues on which the estoppel is pleaded or raised – see Odjewedge v. Echanokpe (supra); and Bassey v. Ekanem (2001) 1 NWLR (Pt. 694) 360 at 370. Thus the issue of estoppel (res judicata or issue estoppel) has relevance with and is akin to the issue of jurisdiction. In other words, the issue of estoppel if successfully pleaded will affect the jurisdiction of the trial court in the sense that it is a factor precluding the said court from adjudicating in the case or on the issues (i.e. the court is disqualified from adjudicating). The importance and the fundamental nature of the court to adjudicate cannot be over-emphasised – See Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Att. Gen. Lagos State v. Dosunmu (1989) 3 NWLR (Pt. III) 552; and Western Steel Work Ltd. v. Iron & Steel Workers Union (1986) 3 NWLR (Pt. 30) 617. In the final result of my consideration of this appeal, I find that it has merit and it has succeeded on issues 1, 2 and 3 on the application of res-judicata or issue estoppel in the case at the trial court. As the said issues are related and akin to the fundamental issue of jurisdiction, they have in effect rendered the whole proceedings at the trial court a mere nullity. The said proceedings of the trial court are hereby struck out and its judgment dated the 26th March, 1998 is hereby set aside.

 

Under the circumstances of this case it will not be fair or just to the appellant to remit the case to the High Court for a retrial de novo – see Salami v. Gbodoolu (1997) 4 NWLR (Pt. 449) 377 at 295. Consequently I will invoke the general powers of this court under section 16 of the Court of Appeal Act, 1976 and do what the learned trial Judge ought to have done in the case but failed to do. I find that the appellant has proved his title to the land in dispute by virtue of an earlier suit No. 1/411/93 against the respondent and all others who have interest in the land in dispute and who are privies in estate with the said respondent. Accordingly I make the following orders as made in exhibit P. 5:-

 

(1)     The sum of N100.00 is hereby awarded in favour of the appellant and against the defendant/respondent being damages for trespass committed by the said respondent on the plaintiff/appellant’s land at Olopeworoko near Ibadan Grammar School, Ibadan.

 

(2)     An order of perpetual injunction is hereby made restraining the defendant/respondent, his agents, servants and or privies from further entering on the parcel of land in dispute and which is shown in plan No. KESH/Y/2041 of 24th January, 1994.

 

I assess the costs of this appeal at N5,000.00 which I hereby award in favour of the appellant and against the respondent.

 

SUNDAY AKINTAN, JCA.: I had the privilege of reading the draft of the leading judgment prepared by my learned brother, Adamu, JCA. I agree with his reasoning and conclusion that there is merit in the appeal. I also allow the appeal and abide with all consequential orders made in the leading judgment, including that on costs.

 

FRANCIS FEDODE TABAI, JCA.: I had the privilege of reading, in advance, the leading judgment prepared by Adamu, JCA and I agree entirely with the reasoning and conclusion. Although the plea of estoppel per rem judicatam operates as a shield for the protection of a defendant and therefore normally available only to the defendant, it can, in certain circumstances be raised by the plaintiff as well. One of such circumstances is where a plaintiff makes the plea by way of reply to assertions in the statement of defence. See Ike v. Ugboaja (1993) 6 NWLR (Pt. 301) 6 NWLR at 656 –566, and Osunrinde v. Ajamogun (1992) 6 NWLR (Pt. 246) 156 at 190.

 

In the instant case the plea was raised in paragraphs 2, 3 and 4 of the plaintiff’s reply to the statement of defence. And at the trial the plaintiff (now appellant) relied on and tendered the judgment in suit No. 1/411/93 exhibit P5 which is still subsisting. Even if the name of Alhaji (Chief) E. A. Adeleke who was the first defendant in the proceedings in exhibit P5 was eventually struck out, he remains bound by the decision therein since from the evidence it is clear that the respondent’s immediate purported vendors also purportedly derived their title from him.

 

In these circumstances, I hold that estoppel per rem judicatam applied and the respondent is estopped from asserting what is contrary to the judgment in exhibit P5. For the foregoing reasons and fuller reasons comprehensibly set out in the leading judgment of my learned brother Adamu, JCA. I also allow the appeal. The judgment of the lower court is accordingly set aside. And in its place I enter judgment for the plaintiff/appellant in terms detailed in the leading judgment. I also abide by the order as to costs in the leading judgment.

 

Cases referred to in the judgment

Adeleke v. Akanji (1994) 4 NWLR (Pt. 341) 715.

Ajibade v. Mayowa (1978) 9-10 SC 1 .

Akhiwu v. The Principal Lotteries Officer Mid, Western State (1972) All NLR (Pt. 1) 229.

Amuda v. Ajobo (1995) 7 NWLR (Pt. 406) 170.

Are v. Fabolude (1983) 2 SC 75.

Arubo v. Aiyeleru (1993) 3 NWLR (Pt. 280) 126.

Att. Gen. Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552.

Ayanwale v. Atanda (1988) 1 NWLR (Pt. 68) 22.

Balogun v . Salami (1963) 1 All NLR 129.

Bamishebi v. Faleye (1987) 2 NWLR (Pt. 54) 51.

Bassey v. Ekanem (2001) 1 NWLR (Pt. 694) 360 .

Bello v. Eweka (1981) 1 SC 101.

C.F.A.O. v. Onitsha Industries Ltd. (1932) 11 NLR 102.

Cardoso v. Daniel (1986) 2 NWLR (Pt. 20) 1.

Coker v. Sanyaolu (1976) 9 – 10 SC 203;

Colonial Development Board v. Kamson (1955) 21 NLR 75.

Da Costa v. Ikomi (1968) 1 All NLR 394.

Dina v. New-Nigerian Newspapers Ltd. (1986) 2 NWLR (Pt. 22) 353 .

Ekpe v. Antai (1944) 10 WACA 19.

Esiaka v. Obiasogwu (1952) 14 WACA 178.

Ezenwani v. Onwordi (1986) 4 NWLR (Pt. 33) 27.

Fadiora v. Gbadebo (1978) 1 LRN 97 .

Faleye v. Otapo (1995) 3 NWLR (Pt. 381) 1.

Idundun v. Okumagba (1976) 9-10 SC 227.

Ife v. Essien (1985) 5 NWLR (Pt. 41) 378.

Ike v. Ugboaja (1993) 6 NWLR (Pt. 301) 539.

Iyowuawi v. Iyowuawi (1987) 4 NWLR (Pt. 63) 61.

Jackson v. Goldsmith (1950) 81. CLR 446

Kok Henna v. Leon Chem Kweng Ltd. (1964) AC 482.

Madukolu v. Nkemdilim (1962) 2 SCNLR 341.

Mogaji v. Cadbury Nig. Ltd (1985) 2 NWLR (Pt.7) 393.

Motunwase v. Sorungbe (1988) 4 NWLR (Pt. 92) 90

Noibi v. Fikolati (1987) 1 NWLR (Pt. 52) 619.

Odejevwedje v. Echanokpe (1987) 1 NWLR (Pt. 52) 633 .

Odonigi v. Oyeleke (2001) 6 NWLR (Pt. 708) 12; (2001) 11 WRN 64.

Odua v. Nwanze (1934) 2 WACA 98.

Odume v. Nnachi (1964) 1 All NLR 329.

Ogbogu v. Ndiribe (1992) 6 NWLR (Pt. 245) 40.

Ogundaini v. Araba (1978) All NLR 165 .

Ogunleye v. Arewa (1960) WRNLR 9 .

Okedare v. Adebara (1994) 6 NWLR (Pt. 349) 157.

Okukuje v. Akwido (2001) 3 NWLR (Pt. 700) 261, (2001) 10 WRN 1.

Okulade v. Alade (1976) 1 All NLR (Pt. 1) 67.

Onibudo v. Akibu (1982) 7 SC 60.

Onwugbufor v. Okoye (1996) 1 NWLR (Pt. 424) 252.

Osunrinde v. Ajamogun (1992) 6 NWLR (Pt. 246) 156 .

Piaro v. Tenalo (1976) 12 SC 31.

Roden v. London Small Arms Co. LJ, QBD 213.

Salami v. Gbodoolu (1987) 4 NWLR (Pt. 449) 377 .

Saude v. Abdullahi (1999) 4 NWLR (Pt. 116) 387.

Thoday v. Thoday (1964)1 All ER 341 .

Usikaro v. Itsekiri Communal Land Trustees (1991) 2 NWLR (Pt. 172) 150.

Yoye v. Olubode (1974) 10 SC 209.

Statute of court referred to in the judgment

Court of Appeal Act,1976, Section 16

Books referred to in the judgment

Halburys Laws of England 4th edition vol. 16 paragraph 1530

 

error: Our Content is protected!! Contact us to get the resources...
Subscribe!