Lawal Adisa Yusuf Shitta-bey V. Chairman, Lagos Executive Devt. Board (1962)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, F.J

The contest between the appellants (hereafter called the second Claimants) and the second respondents (hereafter called the first Claimants) relates to the compensation payable for No. 41/43 Martins Street, Lagos, which was acquired by the Chairman, Lagos Executive Development Board. The second Claim-ants claim that the descendants of Yousuffo Shitta-Bey are entitled to half the amount, the first Claimants that it belongs in whole to the children of Mohammed Shitta-Bey. The latter pleaded in the compensation proceedings (now on appeal) that it had been so held in the judgment of the High Court in Suit No. 382 of 1954, on which they relied as estoppel against the other side. The proceedings in that suit were estoppel against the other side. The proceedings in that suit were put in, and after argument Bennet, J., decided in favour of the first Claimants; whence this appeal by the second Claimants.

The premises in question were declared a trust by Mohammed Shitta–Bey (who died in 1895) in his will, which named his brother Yousuffo and his two sisters as executors and trustees. The will also appointed Yousuffo as Head of the House. He was the head until his death in 1908, and after him various persons held the headship until 1948, when Rufai died, and then Sulu Shitta was appointed. Lawal, a son of Yousuffo, was away for years; when he came back in 1953, he claimed that he was the person entitled to be the head, and brought Suit No. 382 of 1954 against Sulu Shitta, a son of Mohammed, the testator.

As regards the trustees: Yousuffo died in 1908, and one of the sisters be-fore 1911; in that year the Court added Sanni Shitta and Albert Shitta as co–trustees of the surviving sister. According to the Defence in Suit 382 of 1954, Sanni became head when Yousuffo died, and was succeeded by Rufai as head, but the Defence did not allege that Rufai ever became a trustee. Again, according to that Defence, Sulu Shitta succeeded Rufai, who died in 1948, as head and was turbanned as Seriki Musulumi in March, 1950, but he was appointed with Abudu Ramonu Shitta as trustee on the 20th June, 1950. These facts from that defence are mentioned for the sake of making it clear that a person might be head of the family without being a trustee, and that a trustee was not necessarily head of the family.

In the earlier suit Lawal was claiming a declaration that he was the one entitled as against the defendant to act as head of the family and reside in the portion of the house used by the head. He sued ‘Sulu Shitta’ simpliciter as the defendant; he did not sue him as trustee; neither did he sue him as repre-senting the children of Mohammed Shitta-Bey. On the other hand, Sulu Shitta put up a triple shield in his defence–

(1)that he had been appointed as the head by those entitled to appoint the head;

(2)that he was a trustee under the will; and

(3)that the trust created by the will concerning the house and compound was in favour of the children of the testator, including the defendant, to the exclusion of the children of Yousuffo Shitta.

Both sides were invoking the will. They agreed on the dispute being decided by Mr. L. B. Agusto, as arbitrator, and he decided that the defendant, Sulu Shitta, was entitled to reside in the portion used by the head of the family–

(1) because he was the trustee in whom the legal estate was vested;

(2) because he was one of the testator’s children in whose favour the trust was created; and

(3) because he was the head of the testator’s family both by age and appointment, and also the SerikiMusulumi of the Muslims of the Central Mosque, Victoria Street, Lagos.

In the arbitrator’s view, the plaintiff’s claims were not supported by the will, on which he founded them, and his action was dismissed.

There were arguments before Bennet, J., on the two points involved-

(1)whether the parties now are the same as in the previous suit; and

(2)whether the ownership of the premises was directly in issue in that suit;

he decided both points in favour of the plea of res judicata. The grounds of appeal make up two objections-

(a)that the parties are not the same as before and that they did not sue or defend in the same right;

(b)that the defence in the previous suit was not a clear joinder of issue of ownership and that ownership of the property was not directly in issue there.

The matter is governed by Section 53 of our Evidence Ordinance, which states that:–

Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the Court, and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.

To begin with objection (a): in the previous suit the plaintiff was-

“Mohammed L. A. Yousuffo Shitta-Bey for himself and on be-half of the surviving children of Yousuffo Shitta”;

in the Summons taken out by the Chairman, L.E.D.B., the second Claimant is–

“Lawal Adisa Yussuf Shitta-Bey for himself and the other de-scendants of Yussuf Shitta-Bey”.

It is one and the same person, who has dropped the initial Mohammed from his name. There may be a difference between his suing previously on behalf of “the surviving children” and his claiming now on behalf of “the descendants” of Yousuffo Shitta-Bey; but neither side so argued expressly.

Both sides argued rather on the difference between Sulu Shitta being the defendant in the previous suit and the fact that there are others with him now as the first Claimants, who are stated to be –

“Sulu Shitta, Amunatu Ejide Savage, Ebun Olajumoke Bucknor,Sindiku Shitta, for themselves and as Trustees of the Estate of Mohammed Shitta-Bey alias William Shitta (deceased)”.

Part of the argument for the second Claimants is that Sulu Shitta was sued personally , and not as a trustee, in the former suit, whilst now he is claiming both personally and as a trustee. So far as that goes, he can plead res judicata, for he was defending personally before and is claiming personally now, and the fact that now he is also claiming as trustee does not matter. But that does not end the question.

For the first Claimants it is admitted that in the previous suit the Writ did not disclose the capacity in which Sulu Shitta was sued; but it is argued that his defence there showed that he defended both as head of the family and as trustee, that he was the sole surviving trustee according to the evidence, and that he was really defending in a representative capacity. These arguments have to be tested.

From the decision of the arbitrator it appears that Abudu Ramonu Shitta, who was appointed a trustee, together with Sulu, in June, 1950, had died by the time the decision was given in 1960; but it appears from paragraph 2 of the defence, which was delivered on the 3rd December, 1954, that he was alive at that time, and yet, no application was made to join him as a co-defendant. I have already pointed out that a person could be head of the house without being a trustee. The contest in that suit, so far as the claim in the Writ of Summons and in the Statement of Claim were concerned, was over the headship of the house and the right to occupy a certain portion of the house as head. It is true that in the defence Sulu defended his right to be the head on several lines-that he was the person properly appointed to be the head, that he was one of the trustees, and that the trust created by the will was in favour of the testator’s children to the exclusion of those of Yousuffo; but it does not follow that he was defending in a representative capacity, that is to say on behalf of the testator’s children or as trustee; nor was he sued as a trustee.

The test is whether, if the will had been interpreted against Moham-med’s children, the arbitrator’s decision would have been binding on them as res judicata in favour of Yousuffo’s children in the present compensation proceedings: would the children of Yousuffo have been able to plead it as res judicata against them? for estoppel must be mutual. The children of Mohammed would have pointed out that in the former suit Sulu Shitta was being sued personally, and that they had not authorised him to defend their interests under the will and the trust it created. What learned counsel for the first Claimants has not done is to show how, under the local rules, the children of Mohammed would have been bound by the decision in the previous suit. Neither does the judgment under appeal explain that aspect of the question: it says this–

The second point made by Mr. Odufalu was that the previous action was between different parties in that Sulu was sued in his personal capacity. In that contention I find no merit whatever. Sulu Shitta was sued because he was acting as head of the family and trustee of Mohammed Shitta de

Other Citation: (1962) LCN/0981(SC)