M.O.odutola V. Chief Zaacheus Oderinde (Bale Of Ijako) & Ors (2004)
LAWGLOBAL HUB Lead Judgment Report
KUTIGI, J.S.C.
In the Ogun State High Court holden at Otta, the plaintiffs claimed against the defendant –
(1) to be the persons entitled to the statutory right of occupancy in respect of the land situate, lying and being at Ijako village near Otta, Ogun State of Nigeria;
(2) the sum of N200,000.00 against the 1st defendant being damages for trespass etc.
(3) injunction restraining the 1st defendant, his agents, servants, or privies from committing further trespass and or entering the said land etc.
(4) injunction restraining the 2nd, 3rd and 4th defendants from accepting and or approving and granting and or registering and or processing any application for certificates of occupancy from the 1st defendant etc. should be noted that the defendant/appellant became the sole defendant upon the withdrawal of the claim against the other defendants who were then struck-out from the suit.
After the parties had filed and exchanged their pleadings, the defendant filed a motion on notice praying for an order setting down for hearing the plea of “res judicata” raised by him in his pleadings. The motion was supported by an affidavit to which were attached judgments in suits No. 23/CV/75 (exhibit A) and No.AB/13A/84 (exhibit B). The defendant claimed that the plea was based on the two judgments.
The plaintiffs countered by filing a counter-affidavit to which several documents including a survey plan No. 00.790/76 were attached.
After hearing argument from counsel on both sides the learned trial Judge in a reserved ruling held that on the materials before him the plea of “res judicata” was not established. Consequently, the application was dismissed.
Dissatisfied with the ruling, the defendant appealed to the Court of Appeal holden at Ibadan. In a unanimous judgment the Court of Appeal held that the appeal was completely devoid of merit and dismissed it accordingly.
Still aggrieved by the decision of the Court of Appeal, the defendant has further appealed to this court. Eight (8) grounds of appeal were filed from which five (5) issues have been distilled in the appellant’s brief for determination by this court. I have read them all.
However, having regard to the interlocutory nature of the application, it is my considered view that the single most important issue relevant in this appeal is defendant’s issue (5) which reads –
“(5) Whether the Court of Appeal was right in not upholding the plea of “estoppel per rem judicatam.”
In obedience to the rules of court, the parties through their counsel filed and exchanged briefs of argument. These were adopted at the hearing of the appeal during which additional oral submissions were made and additional authorities cited.
Before considering issue (5) of the appeal above, I will have to rule first on the preliminary objection to the hearing of the appeal raised by the plaintiffs/respondents in their brief. Mr. Alawoye learned counsel for the plaintiffs contended that having regard to the nature of the proceedings before the Court of Appeal and the order made thereupon, the notice of appeal filed by the defendant on 20/9/99, concerned an interlocutory decision of that court and in which case the notice of appeal ought to have been filed within 14 days of the judgment as provided for under section 31(2) of the Supreme Court Act. He said the Court of Appeal in this case delivered its judgment on 24/6/99. The appeal filed on 20/9/99 is therefore incompetent and ought to be struck out. He cites Onuora v. Ibe (1996) 9 NWLR (Pt. 474) 624 in support.
Alhaja Ayoola learned counsel for the defendant on the other hand argued that the decision of the Court of Appeal is final and not interlocutory, because as far as that court is concerned it has nothing more to do with the case. It is a final decision by the Court of Appeal in an appeal brought before it from an interlocutory decision of the High Court, and there was nothing left for the Court of Appeal to do in the case. She said the leave granted to the defendant by the Court of Appeal on 14/9/99 and the notice of appeal filed on 20/9/99 were well within the three (3) months period prescribed by section 31(2) of the Supreme Court Act. That the mere fact that the appeal to the Court of Appeal was from an interlocutory decision of the High Court did not make the decision of the Court of Appeal interlocutory but final.
I say straight away that I endorse the submissions of learned counsel for the defendant/appellant above. The test which the court adopts in deciding whether an order or decision is interlocutory or final was finally put to rest by this court in Akinsanya v. U.B.A. Ltd. (1986) 4 NWLR (Pt. 35) 273. An order or decision is final when it finally disposes of the rights of the parties, that is to say, the decision or order given by the court is such that the matter would not be further brought back to the court itself, as in this case. The preliminary objection to the competency of the appeal is accordingly over-ruled. It is dismissed.I will now return to issue (5) of the appeal already reproduced above. Alhaja Ayoola submitted that on the totality of the materials before the Court of Appeal, that court was wrong in not upholding the plea of “estoppel per rem judicatam”. She said in the earlier suit No.23/CV/75 the plaintiffs claimed for a declaration of title to the area of land verged red on their plan, and bounded “on the 1st side by Arinko land, on the 2nd side by Isaka land, on the 3rd side by Tetiku land, on the 4th side by Isorosi and Oko Osi land.” And in the present suit No. HCJ/6/89 the plaintiffs are claiming a declaration that they are the persons entitled to a statutory right of occupancy of the same vast piece or parcel of land bounded by traditional boundary men, Arinko, Isaka, Tetiku and Isorosi and Oko Osi.” It was submitted that the basis for the claim of title in both suits is the same, namely the plaintiffs claimed to be descendants of the original owner Ijako through one Ebisa. That in suit No. 23/CV/75, it was decided that plaintiffs are not the descendants of Ijako but that it was the Faluyi family, (the grantors of the defendant), that are descendants of Ijako through Ebisa. That the issue can therefore not be relitigated by the plaintiffs in the present suit. They are “estopped per rem judicatam.” It was further submitted that the parties in the two suits are the same, the defendant being a privy in estate to Faluyi family who were co-defendants in 23/CV/75 who joined issues with the plaintiffs on the ownership of Ijako land verged red on the plan. She said the judgment in 23/CV/75 is final and subsisting and the defendant has therefore fulfilled all the conditions for the plea of “estoppel per rem judicatam” to succeed. She referred to the case of Madukolu & Ors. v. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR 587 at 588 and to section 54 of the Evidence Act. The court was urged to allow the appeal.
Responding, Mr. Alawode for the plaintiffs submitted as follows
- A plea of “res judicata” cannot be considered in vacuo and without the surrounding back ground facts as agreed or conceded or facts as found by the court.
- The facts which a party raising a plea of res judicata” must establish in a case in order to sustain the plea are facts showing that –
(a) the parties in the action in which the plea is raised are the same as in the previous case;
(b) the decision between the parties is in respect of the same cause of action, and
(c) the subject matter of the action in which the plea is raised is the same as in the previous case.
Unless all the conditions above are satisfied, a plea of “res judicata” must be rejected. A number of cases were cited in support which include Iyaji v. Eyigebe (1987) 3 NWLR (Pt. 61) 523 at 532, Ajao v. Akano (1988) 1 NWLR (Pt. 71) 431 at 440, Aro v. Fabolude (1983) 1 SCNLR 58; (1983) 2 SC 73 at 84-85.
- The respondent based his plea of res judicata on the judgments in suit No. 23/CV/75 and appeal No. AB/13A/84.
- On whether the parties in this case are the same as the parties in suit No. 23/CV/75, the High Court ruled that although the plaintiffs (in 23/CV/75 and HCT/6/98) are the same, he cannot precisely say that the defendants are the same and which can only be settled or established by evidence. The Court of Appeal agreed and did not reverse the finding.
- The plaintiff who claimed to be a privy in estate of Faluyi family failed to establish it as his purported purchase receipt (exhibit E) showed no plan or size of the land allegedly sold to him by his vendors.
- In suit No. 23/CV/75, the cause of action was the violation of plaintiffs’ right in respect of the area verged green on survey plan No. 00/790/76. In this case the cause of action was the violation of the area verged green in plan No. 00/373AB/77. The area verged green in plan 00/790/76 is verged brown in plan 00/373AB/77. The trespass upon the area verged green in plan 00/373AB/77 in 1985 precipitated this present action. It is crystal clear, therefore, that the cause of action in this case is different from the cause of action in suit No. 23/CV/75. Both the trial High Court and the Court of Appeal have found that the cause of action is not the same.
- The court was urged to dismiss the appeal and confirm the concurrent findings of the lower courts. It is settled law that to sustain a plea of “res judicata”, the party pleading it must satisfy the following conditionalities, to wit-
(1) The parties (or their privies as the case may be) are the same in the present case as in the previous case;
(2) That the issue and subject matter are the same in the previous suit as in the present suit;
(3) That the adjudication in the previous case must have been given by a court to competent jurisdiction; and
(4) That the previous decision must have finally decided the issues between the parties.
(See for example Nkanu & Ors. v. Onun & Ors. (1977) 5 SC 11; Dzungwe v. Gbishe (1985) 2 NWLR (Pt. 8) 528; Udo v. Obot (1989) 2 NWLR (Pt. 95).
Failure to satisfy any of these conditions means failure of the plea in its entirety.
Dealing with the plea, the learned trial Judge in his ruling said as follows –
“In this case the applicants arguments are that the parties are the same, the issues are the same and the subject matters are the same. I found that in 23/CV/75 the area of land involved is only three (3) acres. The plaintiff raised this point at paragraph 4 of this counter-affidavit and that point was not specifically answered in reply to counter-affidavit by the applicant. The 1st defendant only purchased 3 acres from the Faluyi family as shown in exhibit A in the affidavit and confirmed by the 1st defendant’s evidence … I am in the circumstances constrained to conclude that the subject matter in 23/CV/75 and HCT/6/89 are not the same. The acrage in HCT/6/89 being 70.487 acres as against the 3 acres claimed in 23/CV/75 …
While the plaintiffs in 23/CV/75 and HCT/6/89 are the same I cannot say precisely that the defendants in 23/ CV /75 are the same. The relationship between Osundairo, Sunday Faluyi and Lasisi Faluyi and N. A. Odutola, the defendant in this suit has to be established by evidence. The law is that what has to be tried in the substantive case should not be considered in details in an interlocutory application. This would amount to double trial … To succeed on this plea, all the requirements must be unequivocal and certain. In 23/CV/75 neither Osundairo nor the Faluyis’ were adjudged the owners of the 3 acres because they did not counter-claim …..
I think at this stage, it would appear improper to shut out the plaintiffs on the plea of res judicata since I find that the subject matter is not the same the claim is not the same, and the issues are more fundamental than mere issues of trespass …
I have no hesitation in dismissing this application.”
The Court of Appeal in its lead judgment on page 282 of the record also had this to say –
“Applying the above principles to the present case based on what has been made available at the trial court by the appellant, it can be clearly seen that the land in dispute in the earlier suit No. 23/CV/75 (which was on trespass) was smaller in size (i.e. 3 acres) than that in the present action (which is on the whole of Ijako community land). In Olukoga v. Fatunde (1996) 7 NWLR (Pt. 462) 516 at 533, the Supreme Court drew a distinction between a previous suit in which the land was 18.62 acres and the subsequent case where the land was 100 acres and concluded that the subject matters thereat were not the same in the two cases … The appeal is completely devoid of merit and should be dismissed. I accordingly hereby so dismiss it.”
I have carefully read through the record myself and my irresistible conclusion is that the lower courts were right in their rejection of the plea of res judicata relied upon by the defendant in this case. The issue and subject matter in the previous suit (23/V /75) and present suit (HCJ/6/89) are not the same. These are sufficient for the plea to have collapsed as it did (see for example Kutse & Ors. v. A.-G., Plateau State & Ors. (1999) 2 SC 124).
I am aware that the Court of Appeal in its judgment on page 283 held, rightly in my view, that the judgment in 23/CV /75 was not a final judgment because an appeal was lodged against the said judgment in the High Court (AB/13A/84), and a further appeal also was lodged to the Court of Appeal (CA/I/62/84), which finally ordered a retrial of the case. This point was taken suo motu by the Court of Appeal and without giving the parties or their counsel opportunity to address on it. I think Alhaja Ayoola was right to have complained here now. But I am unable to agree with her that any miscarriage of justice has occurred in the case. As I have stated above the appeal would still have failed even if the judgment in 23/CV/75 was final (and it was not) as contended by learned counsel (see for example Onajobi & Anor. v. Olanipekun & Ors. (1985) 4 SC (Pt. 2) 156, Atoyebi & Anor. v. Gov. of Oyo State & Ors. (1994) 4 NWLR (Pt. 344) 290.
The appeal therefore fails. It is hereby dismissed with N10,000.00 costs to the plaintiffs/respondents.
SC.144/1999
