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10TH APRIL, 1970

SUIT NO: S.C. 728/66

3PLR/1970/21 (SC)











PRACTICE AND PROCEDURE- Appeal- Appellant entitled to argue all the grounds of appeal unless he abandons them or objection successfully raised to them.

PRACTICE AND PROCEDURE- Res judicata-.and in dispute not proved to be the same as land in former suit—Whether plea of res judicata sustainable.



Chief Williams for the appellants.

Respondents absent and not represented.


MADARIKAN, J.S.C. (delivering the judgement of Appeal from the High Court (West).

Proceedings in this case were commenced in the Ibadan No. 3 Grade B Customary Court where the plaintiff’s claim against the defendant read:

“(1)   Title to ownership and recovery of plaintiff’s land situate and being at Odookun, Ibadan bounded on one side by Ketuketu, second side by Kudeti stream, third side by Alapoefon, and fourth side by Kekuta. The value of the land is £200.

(2)     Injunction restraining the defendants, their joint and respective heirs, servants, agents or anybody claiming through them from further trespassing thereon or therein the land.

(3)     Any other relief which the court can afford.”


At the trial, the plaintiff’s case was that the land in dispute was granted to his father, Odeniran, by Orowusi, and that it devolved on Odeniran’s children as family property. The plaintiff called a boundary-man as a witness and he testified that the land belonged to the plaintiff’s family.


The 1st defendant is a sister of the 3rd defendant, and the 2nd defendant is a son of the 1st defendant. For their part, the defendants also traced their title to the land to Orowusi who, they stated, granted the land to Ojediran, the father of the 1st defendant. During the lifetime of Ojediran, he had a vegetable garden on the land, and also granted portions of the land to ten-ants. As further proof of ownership of the land, the defendants stated that the parcel of land adjacent to the land in dispute was acquired from them in 1954 by the lbadan District Council for the erection of a primary school and that compensation was paid to them for the land so acquired. The Bale of the Orowusi family also testified for the defendants. He stated, inter alia, that:


“The land in dispute was granted to Ogunnike the grandfather of the 1st and 3rd defendants through their father Ojediran.”


“The grove next to the land in dispute was not granted to any of the two parties, but left for general use of Egungun and Ifa worshippers.”


In a reserved judgement, the court observed as follows:


“Although the plaintiff did not state it in his evidence in-chief, but through his cross-examination he was trying to establish that Aleshinloye family once claimed against him the land in dispute together with the one admitted by the defendants and their witnesses as belonging to him and lost the claim to him, and as such the land in dispute had become his own as a result of court’s decision on Aleshinloye’s claim. Copy of this court case and judgement was not tendered to the court by the plaintiff.” and before dismissing the plaintiff’s claim with costs, the court made the following findings of facts:


“From facts and evidence before the court, I am fully convinced that the land in dispute was originally granted to the ancestor of the defendants and not to the ancestor of the plaintiff, and that the defendants are rightful owners of the land. The land does not in any shape or form belong to the plaintiff or any of his family.”


Against that judgement, the plaintiff lodged an appeal to the Grade A Customary Court on the following grounds:-


“(1)   The decision is unreasonable unwarranted and cannot be sup-ported having regard to the weight of evidence.


(2)     The trial president wrongfully received inadmissible documentary evidence, i.e. exhibit B and C, based his judgement on them and thereby came to a wrong decision.


(3)     The trial president erred in law in failing to find against the defendants on the ground of estoppel as they were privies to a previous action in which a claim against the plaintiff/appellant in respect of the same piece of land was dismissed.


(4)     The trial president erred in law when he held as he did at page 12 lines 30-41. Assuming that Aleshinloye family claim which was lost to him, extended to the land in dispute, the judgement in that case cannot confer on the plaintiff or any of his family the right of owner-ship of the land, etc.


(5)     The trial president misdirected himself on the evidence when he relied on the evidence of unreliable witnesses called by the defendants/ respondents whom the president said he believed.


(6)     The trial president erred in law in failing to record a finding as to whether or not the land now claimed was the same as or included in a previous suit between plaintiff/appellant, and Aleshinloye family.”


At the hearing of the appeal before that court, the plaintiff sought and obtained leave to adduce fresh evidence, namely, to produce a copy of the proceedings and judgement in Suit No. 4/53 together with the plan of the land in dispute in that case, and they were admitted in evidence by the court and marked as exhibits F and Fl respectively. It would appear from the record that after hearing arguments on the 3rd and 4th grounds of appeal, the learned president did not allow the plaintiff’s counsel to argue the other grounds of appeal. After the defendants’ counsel had replied to the arguments on the 3rd and 4th grounds, the court adjourned for judgement. Delivering the judgement of the court on the 31st of January, 1964, the learned president said:


“This court therefore finds that the claim in the previous case and that in the present action are the same. Now to parties. This court agrees with the learned counsel for the appellant that the present defendants were privies to the previous action. They were all aware of Aleshinloye family claiming ownership of the piece of land against the present plaintiff but they stood by and did nothing until judgement was given against Aleshinloye family.


This court finds that the doctrine of estoppel has caught the defendants in the present case.


This appeal therefore succeeds on the only 2 grounds already argued. The decision of the lower court together with costs is therefore set aside and judgement is given for the plaintiff on behalf of himself and other members of Ege for title to the piece of land verged RED in plan No. OG250/62 of the 2nd of June, 1962.-(exhibit A). The defendants, their heirs, servants agents or anybody claiming through them, are also here-by restrained from committing any trespass on the said piece of land.”


The defendants appealed against that judgement to the High Court, Ibadan, (Akinkugbe J.) which considered the issue of res judicata and came to the following conclusion:


“The president of the Grade A Court below appeared to have only relied upon the plea of res judicata based on the judgement in exhibit F and plan exhibit Fl, both of which do not establish the identity of the land in Suit No. 4/53 and the case now before me to be the same. The appellants in addition cannot, as I have stated, be said to be privies. The learned president did not appear to have taken into consideration the fact that the land was inspected by the court of first instance.


The appeal is allowed. The judgement of the court below is set aside.”


The plaintiff has further appealed to this Court, and before us on appeal, learned counsel for the plaintiff, Chief Williams, eventually conceded on this point that the learned judge on appeal was right in coming to the conclusion that the judgement in Suit No. 4/53 (exhibit F) could not operate as res judicata. We are in no doubt that on a proper appraisal of the evidence, there was no proof that the land in dispute in this case is the same as, or forms portion of, the land in dispute in Suit No. 4/53 (exhibits F and Fl). Akinkugbe J. was therefore right in coming to the conclusion that the plea of res judicata could not be sustained.


Chief Williams argued however that the Grade A Customary Court did not allow the plaintiff to argue the 1st, 2nd, 5th and 6th grounds of appeal filed in that court, and he sought to argue those grounds of appeal before us. An appellant is entitled to pursue all his grounds of appeal, and unless he abandons them or an objection is successfully raised to them, a court ought not to prevent him from arguing them. As the plaintiff was deprived of the opportunity of arguing some of his grounds of appeal in the Grade A Customary Court, we are of the view that this appeal must and does succeed. We consider that the justice of the case demands that it be remitted to the Grade A Customary Court, Ibadan, for the appeal of the appellant to that court to be reheard on the basis that Suit No. 4/53 (exhibit F) does not operate as res judicata and we hereby so order. In order not to prejudice the hearing of the appeal before that court, we shall refrain from expressing any views on the other arguments addressed to us by Chief Williams. The following orders are hereby made as to costs:


(1)     the costs awarded in the Grade A Customary Court are hereby set aside, and it is ordered that the costs in that court shall abide the event.


(2)     The costs awarded in the High Court are hereby set aside.


(3)     The plaintiff is entitled to the costs of this appeal which we assess at 75 guineas.


Appeal allowed : case remitted to the Grade A Customary Court for appeal to be reheard.



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