Ogundeji Abe V. Oba Samuel Taiwo Adeniyi & Ors (2006)
LawGlobal-Hub Lead Judgment Report
ALFRED PEARSON EYEWUMI AWALA, J.C.A.
The appellant here is the surviving plaintiff in the suit filed by them at the lower court, the High Court of Justice, Osun State of Nigeria, sitting at the Ilesa Judicial Division before Sijuwade, J, and before whom a motion by way of preliminary objection dated 14/5/90 was filed by the defendants/respondents following the filing and exchange of pleadings.
The said motion is for an order dismissing the plaintiffs’ claims on the ground that the action is res judicata, vide the schedule set down below:-
SCHEDULE
(1) The plaintiffs are members of Ijimo Community, while the defendants are members of Erinmo Community,
(2) There had been previous litigations between the two communities in respect of the area now claimed by the plaintiffs as contained in paragraph 5 of the statement of claim.
(3) These previous litigations had been decided in favour of the 1st defendant the last of which was suit No. HIL/21/72 between Oba Job Oyeyemi representing Erinmo Community (plaintiff) and Loja of Ijimo, Chief Ogundele Abe, representing the Ijimo Community.
(4) The evidence required in this suit and the previous ones are the same.
(5) The attempt made by the defendants in HIL/21/72 to set aside the decision of the High Court was unsuccessful as the Court of Appeal which first decided in their favour in Appeal No.CAW/55/75 on 6/2/76 later on 24/3/76 set aside its own decision and ordered a rehearing of the appeal. The appeal was never reheard.
(6) Both the statement of claim and defence shall be relied upon by the applicants.
The motion is supported by a ten (10) paragraphed affidavit.
The respondents filed a counter-affidavit of twelve (12) paragraphs.
And in response the appellant filed a further affidavit dated 7/6/90.
Again, in further response the respondents filed a six paragraphed further counter-affidavit dated 26/6/90. On 9/3/92 the motion was heard. In his considered ruling dated 24/3/92 the learned trial Judge held as follows in part.
“On the whole, this application succeeds. The plaintiff’s present action is caught and defeated by the plea of res judicata. In the absence of any rehearing of the appeal which must be very stale now, the decision of the High Court in suit No. HIL/21/72 delivered by Ademola, J. (as he then was) remains binding and enforceable between and among those claiming through the parties.
The plaintiffs’ claim is accordingly dismissed for the foregoing reasons with costs of N250.00k assessed in favour of the respondents/applicants.”
Dissatisfied, the appellant filed a notice of appeal dated 4/5/92 setting out two grounds (including an omnibus one). On 8/ 11/2000 he filed an amended notice of appeal with five additional grounds including the original ground to make six.
In accordance with the rules of this court, the parties filed and exchanged their respective briefs of arguments; with the appellant learned counsel distilling four (4) issues while the respondent counsel one. The respondents’ learned counsel argued that grounds 2, 3, 4, 5 and 6 filed by the appellant counsel with leave of court are more or less the same as the original one he filed; he submitted further that the sole issue he formulated for the determination of this appeal is the one that is pertinent. It reads:-
“Whether the learned trial Judge was right in finding the plea of estoppel per res judicata raised by the defendants/respondents succeeded or not.
It is important to reproduce the four (4) issues attacked by the respondents’ counsel, the appellant counsel distilled from the six grounds. They are:
Issue 1
“Whether on the pleadings of the parties, exhibit “A1″ tendered by the defendants/respondents in the court below and the affidavit evidence of the parties in the matter, the claims of the plaintiff/appellant was concluded by the plea of res judicata raised by the respondents.”
Issue 2
“Whether the lower court adverted its mind as to the onus of proof and did the respondents fully discharge the burden of proving that the appellant on his claims in the court below was concluded by the plea of res judicata as a result of suit No. HIL/21/72 tendered as exhibit ‘AI’ in the court below and which was based on a plan tendered in that court.
Issue 3
“Whether the court below considered that the respondents who raised the plea of res judicata averred in their pleadings that the land in dispute is the same as the land in dispute being litigated upon by the plaintiffs to necessitate the dismissal of the applicants’ claim in the court below”?
Issue 4
“Whether it was proper for the learned trial Judge to dismiss the appellant’s claim in the lower court”.
What was the original ground the counsel for the respondents opined is the same as the six additional grounds filed with the leave of this court? For clarity I reproduce it together with the particulars:”
The learned trial Judge erred in law when he concluded that the plaintiff/appellant was caught and defeated by the plea of res judicata and thereby came to a wrong decision in the matter.
Particulars of error in law
(1) The action of the plaintiffs/appellants was predicated on the disturbance of their possession.
(2) The judgment relied upon by the learned trial Judge did not say the plaintiffs/appellants were not entitled to remain in possession of the land they were farming before the institution and determination of the (sic) suit leading to the said judgment.
(3) The judgment relied upon by the learned trial Judge did not award absolute title to the first defendant/respondent so as to grant again the farmland in possession of the plaintiffs/appellants to the 2nd and 3rd defendants/respondents.”
After a cool and calculated dispassionate perusal of both the new five grounds and the old ground with its particulars I agree with respondents’ counsel that the new grounds 2, 3, 4, 5 and 6 of the amended notice of appeal approved by us are clearly more or less the same with the old original ground with its particular reproduced by me above (see page 52 lines 24-25 of the records) which makes the four issues formulated prolix.
I shall resolve this appeal therefore on the one issue raised by the respondents which in my view swallowed up the four distilled ones by the appellant’s counsel as the sole issue involved in this appeal. It is whether the trial Judge rightly or wrongly concluded the plaintiffs’ case on the plea of res judicata? This does not mean however that I will discountenance the four issues painstakingly formulated by the appellant’s counsel. I certainly will consider them in turn one by one along with the lone one raised by the respondents’ counsel. At the end of the day of the arguments by parties of learned counsel it will be apparent where the pendulum of justice tilts in the imaginary scale. (Mogaji v. Odofin (1978) 4 SC 91) and I shall resolve the matter accordingly.
Argument by appellants learned counsel from his brief on his Issue.
Issue One
That the respondents did not prove the identity of the land in the previous suit as the same land in the action he filed in the court below to entitle him to the plea of res judicata.
In my view, the principle in relation to the defence of estoppel per rem judicata is clear, and it is shortly put by Bairamian, J. in Krekchi v. UAC Ltd. 20 NLR 34 at page 38.
“It is no doubt true to say that, whenever a question has in substance been decided or has in substance formed the rationale of, or been fundamental to the decision in an earlier action between the same parties each party is estopped from re-litigating on the same question thereafter”. Quoting from New Brunswick Railway Co. v. British and French Trust Corporation Ltd. (1938) Vol. 4 (All E.R.) 747 at 770.
Appellant’s counsel then submitted that the area covered by decision of Ademola, J. (as he then was) in suit No. HIL/21/72 delivered on 11th December, 1974 as shown on page 1 in the judgment tendered in the lower court is of moment. (Exhibit AI) it reads:
“A declaration of title under Native Law and Custom to that piece or parcel of farmland and which is about 2000 (two thousand) acres situate, lying and being at Ilobi, Ijesha North Division and bounded on the four sides by Idodo Community land and Ikoromaja Community land, Iwaraja Community land, Alana farmland, Erinmo Community land respectively.”
The judgment in the said case was to the effect:-
“There would therefore be judgment for the plaintiff for declaration sought but in the capacity of representing both Erinmo and Ijimo communities.”
The appellant’s counsel submitted further that the onus of proving that the identity of the land described above and the area claimed by the appellant in the court below are the same to grant the respondents plea of res judicata as against the appellant is on the respondent. He contended that this onus was not discharged.
The appellant then applied to the court below on 21/1/91 “to suspend hearing of the application” in respect of the preliminary objection that the suit is concluded by the plea of resjudicata “until evidence is led. This request the trial Judge did not grant.
He submitted further that the respondents ought to relate the area the appellant claimed is being trespassed upon is within the 2000 (two thousand) acres litigated upon in suit No. HIL/21/72. There was no proof offered by the respondents on whom the onus rests that the land in dispute is identical as aforesaid in both suits. The ruling therefore by the court below was in error to have concluded that the same piece of land is being litigated upon twice.
He cited:
(i) Paragraph 185 “The Doctrine of Res Judicata” by Spencer, Bower and Turner
(ii) S. 54. Evidence Act, Cap. E1, 2004
(iii) Amida & Ors v. Oshoboja (1984) Vol. 15 NSCC 531 at 549.
He finally concluded that to raise the plea of res judicata, it must be shown that the matter in the dispute was earlier litigated upon and was in favour of the person who is raising it. The pleadings in the previous litigations, the records etc are all relevant in determining whether the plea is maintainable or not. That the court below failed to appraise the pleadings etc. He therefore urged us to set aside the ruling and remit the case back to be heard on the merit to the lower court. I said earlier I will not resolve appellant’s issue one by one as the whole four are in the belly of the sole one couched by the respondent’s counsel. I then go on to treat issue two.
On issue two
That the 2nd and 3rd respondents without lawful justification trespassed into the piece or parcel of land in dispute. That the area so trespassed upon is the farmland which belonged to the appellant as representative of Ijimo community. The area actually in dispute is through Saba of Ijimo and Loja of Ijimo’s farmland on plan No. AB.3023A drawn by A. S. Apatira licensed surveyor as per page 14 lines 42 – 45 to pages 15 and 16 of amended statement of claim. Contending further, appellant’s counsel avers in paragraphs 4-19 of the amended statement of claim thus:
“(4) That Agbede Iju was their ancestor who settled in Jimo permanently around the area of the land in dispute long before the 1st defendant’s ancestor migrated from Itaraje near Ilesha and that it was he, the 1st defendant’s ancestor who approached Alobi of Ijimo for land for farming and that the 1st defendant’s ancestor was granted permission by Alobi of Ijimo to farm outside the land in dispute.
(5) The plaintiffs aver that there has been litigations on the area around the land in dispute between the plaintiffs community and the 1st defendant’s community.
(6) The plaintiffs say that they will rely on all the judgments given in respect of all the cases referred to in paragraph 5 above as issue estoppel and/or resjudicata concluding the 1st defendant as to the possession of the plaintiffs as to the land in dispute thus.
(7) The plaintiffs will rely on plan No. 3023A drawn by A. S. Apatira Licensed Surveyor dated 17/2/71 delineating the land in dispute between Chief Ogunde Abe representing Ijimo Community as the plaintiff Chief Job Oyeyemi & Ors. (representing Erinmo Community as defendants) on suit No. C61/70 at Ijesha Division Grade “A” Customary Court which same plan was tendered and adopted for use in suit No. HIL/21/72.
(8) The area where the 2nd & 3rd defendants trespassed upon and disturbed in the possession of the plaintiffs is through Loja of Ijimo’s farmland as shown on plan No. AB3023A referred to in paragraph 7 above.
(9) The plaintiff will also contend that the area trespassed upon by the 2nd and 3rd defendants in this case relates in all respects to the area delineated in the plan No. AK 2769 dated 7/6/73 drawn by O. O. Akingbogun licensed surveyor and filed by the 1st defendant in suit No. HIL/21/72. Between Oba Job Oyeyemi representing Erinmo Community (plaintiff) And Loja of Ijimo Chief Ogunde Abe for Himself and representing Ijimo Community (defendants) and the plan referred in paragraph 7 above.
(10) The plaintiff will rely on his statement of defence dated 18/2/74 in suit No. HIL/2/72 at the hearing of this matter
(11) That sometimes ago, the 2nd and 3rd defendants, individually and jointly trespassed on the area now in plaintiffs’ possession and being cultivated by the plaintiffs, and which they had been cultivating year in year out since time immemorial.
(12) The 2nd defendant individually entered the area being cultivated by the plaintiffs, cleared the land, destroyed oranges and crops with bulldozer on the ground that he has permission of government to do. Parts of the oranges, vegetables and plants destroyed were carried to Ilesha Police Station by the plaintiffs.
(13) The 3rd defendant individually had also put portion of the traditional area of farming as described in plan No. AB3023A to his own use and threatened the plaintiffs with machete and carved a large portion of it for his own use and expelled the plaintiffs from the area of farming and on enquiry it was gathered that the 1st defendant allocated the land in dispute to the 2nd and 3rd defendants.
(14) The plaintiffs aver that the 2nd and 3rd defendants entered their (plaintiffs) parcel of land without their permission.
(15) Whereof the plaintiffs claim further against the 2nd and 3rd defendants the sum of N2,000.00k (Two Thousand Naira) being damages for continuing trespass committed since 1983 by the 2nd and 3rd defendants on the parcel of land in dispute in possession of the plaintiffs.
To counter above, the respondents filed an amended statement of defence paragraph 4 to 11:
(4) The defendants admit that the plans referred to in paragraphs 3(d), 7, 8 and 9 above refer to the plan in the past litigations, but say further that the said plan have nothing to do with the present suit as the area of land in dispute is not known to the defendants.
(5) The defendants deny paragraphs 3(a), 3(b), 3(c), 3(d), 4,5,6,7,8,9, 12, 13, 14, 15, 16, 17, 18, 18(a), 18(b), 19, 19(a) and 20 of the amended statement of claim and put the plaintiffs to the strictest proof thereof.
(6) The defendants aver that the plaintiffs have no locus standi to sue the 1st defendant in view of the plaintiffs admission that the judgments of the courts pleaded to constitute res judicata and especially as the 1st defendant has been held by the court to be the owner of the land in dispute but holding them in trust for both Erinmo and Ijimo Communities. In case 24/50 it was held on 24/5/51 as follows:-
“The Elerinmo is the owner of the land in issue but on behalf of both communities not one alone.”
(7) The defendants aver that the decision in case 24/50 of 24/5/51 formed the basis of the decision in suit No. HIL/21/72 referred to in paragraph 11 of the statement of claim which decision was in favour of the 1st defendant. (8) The defendants aver that they do not know the land alleged or purported to be trespassed on by them in this case, as no claim or delineation was made in any or all the plans referred to in the plaintiffs’ statement of claim, and particularly as the 2nd and 3rd defendants were not parties to the said litigations referred to by the plaintiffs in their statement of claim.
(9) The defendants averred that the land which the 2nd and 3rd defendants are farming now was virgin land and had not been cultivated by the plaintiffs or any native of Ijimo or any one at all.
(10) The defendants aver that whatever land the 2nd and 3rd defendants are farming on now is Erinmo land and not part of Ijimo land which, in any case, the 1st defendant holds in trust for the communities.
(11) The defendant will at the trial of this case contend that the 2nd and 3rd defendants are lawfully and validly on the land and that the plaintiffs’ statement of claim disclosed no cause of action, that the action is incompetent, and is an abuse of the process of the court.”
Counsel for the appellant then submitted that the parties raising a plea of res judicata has the onus to proof and establish to the satisfaction of the court that:-
(i) The parties or their privies are the same;
(ii) The facts in issue in both the previous and present proceedings are the same;
(iii) The subject matter of the claim is the same;
(iv) The decision relied upon to support the plea must be final;
(v) The court giving the decision is competent.
He cited the following in support
(i) Ogbogu v. Ndiribe (1992) 6 NWLR (Pt.45) 40 at 67 & 72
(ii) Ezewani v. Onwordi (1986) 4 NWLR (Pt.33) 27 SC
(iii) Alao v. Akano (1988) 1 NWLR (Pt. 71) 431
(iv) Kuusu V. Udom (1990) 1 NWLR (Pt. 127) 421
(v) Alabiyi v. Abiona (156) WR NLR 126
(vi) Oduka v. Kasumu (1968) NMLR 28
That the onus is on the parties raising the plea of res judicata to prove all the elements constituting the plea. Counsel for the appellant then asked the question did the respondents successfully prove all these elements relating to the land in dispute whether identical as in the previous suit relied upon by them and upon which the learned trial Judge who heard the preliminary objection and ruled in their favour in the court below without evidence being given. The answer is in the negative.
The appellants’ counsel argued that the respondents pleaded in paragraphs 4 and 9 of the statement of defence that the area of the land in dispute is not known to them. In paragraph 5 they denied all the material averments of the plaintiffs/applicants and put the plaintiffs/applicants on the strictest proof thereof. The respondents went further to argue that the 2nd and 3rd defendants farmed on virgin land that have not been cultivated by the plaintiffs or any native of Ijimo or anyone at all.
Appellant’s counsel then submitted that the respondents have not shown by their pleadings that the land in dispute between the plaintiffs and the defendants in the court below is identical with the one litigated upon in exhibit “A1”.
No plan, on which exhibit “A1”, was based was ever produced before the learned trial Judge, learned counsel argued. That it was as a result of the above that the plaintiffs’ counsel (now appellant’s counsel) submitted in the court below at page 42 lines 6 -15 of the records thus:-
“Counsel argued that the court cannot conclude on the area being litigated upon except they lead evidence”
Refers to paragraphs 13 – 18 of the amended statement of claim. At page 42 lines 6 – 15 he further submits “that as at now the area upon which the plea of res judicata is based is not clear from the judgment until and after evidence had been led.
He referred to paragraphs 8, 9, 10 and 11 of the amended statement of defence and submits “It is premature at this stage to rely on the plea of res judicata” and urged the lower court to dismiss the application”. At page 47 line 14 to page 28 lines 1 – 3 of the records, counsel submitted further that in evaluating the material before him the learned trial Judge concluded:-
“As to the area so adjudged which is said to be larger than the parcel of land in dispute but encompasses the latter, the pleadings of the parties referring to the survey plan tendered earlier and adopted between the same parties, and which are being relied upon in the present action confirm that the subject matter is the same in the two actions.”
I now turn my search light to the supporting affidavits, counter-affidavits of the parties in relation to the present application. I must say that from the totality of the facts pleaded and averred to in those respective affidavits (which more or less are the same facts already pleaded) it is common ground that the issue or plea of res judicata is not only properly raised but extensively relied upon by both parties.
In other words, the essential elements to make the plea of res judicata available and sustainable, namely;
(1) That the parties are the same;
(2) That the subject matter is the same;
(3) That the issue involved and decided upon are the same in the previous action, with the one which the court is presently called upon to decide;
(4) And lastly, that the previous decision was final decision by a competent court,
are present in this case.
The fact as stated above by both parties and litigated upon by me in this ruling put the existence of those essential elements at rest.
As for the present additional names to the former parties, those are mere nominal, either claiming through them or having a common interest and therefore make no difference to the elements of “same parties”, learned counsel argued.
The affidavit evidence of the appellant to the effect that the respondents denied knowing the parcel of land in possession of the appellants was never considered by the court below. The affidavit evidence is to the effect (paragraphs 8 and 9)
Paragraph 8
That the present suit is founded in trespass against the 2nd and 3rd defendants in respect of the parcel of land in the possession of members of Ijimo Communities.
Paragraph 9
The 2nd and 3rd defendants have averred that they do not know where they are trespassing on the plaintiffs’ parcel of land. Counsel then submitted that the trial Judge misconceived the pleadings, the affidavit evidence (as shown above) before coming to the conclusion which is at variance with the pleadings and affidavit evidence before him.
More than that, counsel argued; there is no pleadings nor affidavit evidence before the learned trial Judge entitling him to hold “As to the area of land so adjudged which is said to be larger than the parcel of land in dispute but encompasses the latter” are matter not given in the affidavit evidence and pleaded in the respondents amended statement of defence, and counsel submitted the same is speculative. A Judge is not entitled to judgment based on speculation is not a judgment on merit.
He cited; Gbajor v. Ogunbureguli (1961) All NLR 853; Okoro v. State (1963) 1 All NLR 423; Seismograph Services (Nig.) Ltd. v. Ogbeni (1976) 4 SC Vol. 10; Nnubia v. A.-G. of Rivers State (1999) 3 NWLR (Pt. 593) 82; Overseas Construction Co. (Nig.) Ltd. v. Greek Enterprises (Nig.) Ltd. (1985) 3 NWLR (Pt. 13) 407 at 414.
We are urged therefore to allow this appeal on this issue. I will need to consider the next issue and the respondent’s sole issue next.
Before I resolve this appeal as professional earlier above. So I go to issue three.
On issue three
Appellant’s counsel submitted that exhibit “A1” shows the area previously litigated upon was verged yellow on the plan which exhibit “A1” was based. No plan was tendered in the court below to identify the appellant’s land in dispute to be identical with the area verged Yellow. (Italics mine)
The 2nd respondent on the affidavit accompanying his application for a plea of res judicata deposed thus at page 30 lines 34 – 40 of the records.
He referred us to paragraph 9 of the amended statement of claim.
Paragraph 9
“That by the writ of summons and the statement of claim of the plaintiffs, I believe that the area they are claiming is within the area already decided upon by a court of jurisdiction.”
Whereas counsel submits that the respondents have by their paragraph 4 of their amended statement of defence dated 15/1/90 averred thus;
Paragraph 4
“The defendants admit that the plans referred to in paragraphs 3(d), 7, 8, 9 referred to the said litigations but say further that the said plans have nothing to do with the present suit as the area of land in dispute is not known by the defendants.” (Italics by counsel)
Contending further, appellant’s learned counsel submitted further that respondents averred they did not know the land in dispute and later the 2nd respondent sworn to the fact that the area, the appellant was claiming is within the area already decided upon by a court of competent jurisdiction. And he submitted further that the admission is that the affidavit is at variance with the pleadings and goes to no issue. There were no plans tendered by the respondents to identify the area previously litigated upon and the area of the land claimed by the appellant in the court below, he then said a plea of res judicata can only succeed if the res is the same as previously litigated upon.
The question is, counsel asked, if the land in dispute is not known to the respondents by their pleadings and if it had already been litigated upon by their affidavit evidence, without tendering any plans, why did they raise the plea of res judicata and upon what premise did the lower court justify his holding?
“On the whole, this application succeeds. The plaintiffs, present action is caught and defeated by the plea of res judicata”.
Counsel’s final submission is that the plea of res judicata raised by the respondents was not made and we are urged to allow the appeal.
He cited; Jack v. Harry (1978) 6 – 7 SC 159 at 164 and (1978) Vol. 11 NSCC 387 at 390 where Sowemimo, JSC (as he then was) held;
“We are of the view that all the learned trial Judge had to consider was whether on the exhibits before him the land in dispute has been sufficiently identified to be the same as the land.”
Counsel concluded his argument on this issue that unless and until the respondents can show that the land in dispute in the court below falls within the area edged/verged yellow on the plan attached to exhibit “A1” which was not tendered before the lower court, that the respondents’ plea of res judicata cannot succeed.
We are urged to allow the appeal on this issue.
For recapitulation before I go to treat issue 4, I will stop to say again that the issue in this appeal is one, so will not resolve appellants’ arguments issue by issue only but it is only just to treat the respondents sole issue first before putting both arguments on the now trite scale of justice – Mogaji v. Odofin (supra).
On issue four
Finally, appellant’s counsel argued in issue four that “Assuming without conceding that the plea of res judicata raised by the respondents was justified, then the court below could only strike out the claims of the appellant in the lower court as a suit that ought not have been brought. There was no hearing on the merits in the sense that no findings of facts were ever made.
The ruling on the plea of res judicata was based on a preliminary objection to the jurisdiction of the lower court hearing the case the second time. If the case was not heard and the finding of facts not made, then it could not be dismissed.
He cited; Alufemi Obogunde v. Raji Lanlokun 1957/58 WNLR 69.
That ends the argument of the learned counsel for the appellant.
I go on to consider the sole issue of respondents’ counsel as follows:
That to sustain a plea of res judicata the party relying on it as the respondents herein must satisfy the following conditions:-
(1) That the parties and their privies, as the case may be, are the same in the present case as in the previous case;
(2) That the claim and issue are the same in the previous as in the present case;
(3) That the subject matter of litigation are the same in the present suit as in the previous suit;
(4) That the adjudication in the previous case must have been given by a court of competent jurisdiction and
(5) That the previous decision must have finally decided the issues between the parties.
He cited Dr. Oshodi & 2 Ors. v. Yisa Oseni Eyifunmi & Anor. (2000) 13 NWLR (Pt. 684) 298 at 326 B – F.
With the above principle of law firmly in mind the pertinent question posed by the respondents’ learned counsel is?
“Whether in view of the materials placed before the court, the learned trial Judge was right in holding that the plaintiff/appellant’s action is caught and defeated by the plea of res judicata”?
In answer to the above question, he submitted that the trial Judge in applying the above conditions precedents to raising a successful plea of estoppel per rem judicata had carefully and meticulously examined the previous judgment, that is to say, exhibits “A” and “A1” and the affidavit evidence in the present case to arrive at the conclusion that the plaintiff/appellant is caught by the doctrine of res judicata in favour of the
defendants/respondents. Contending further, he submitted that in the pleadings of the parties, there is no doubt whatsoever that both parties in this appeal extensively relied on the plea of estoppel per res judicata at the lower court. The plaintiff/appellant whose privies were the defendants in the previous suit No. HIL/21/72 pleaded among others as in the present case as follows:-
(a) The 2nd and 3rd defendants without lawful justification trespassed into the piece or parcel (sic) land of plaintiff’s Ijimo Community farmland now in dispute and disturbed their possessions of the said farmland.
(b) The area trespassed upon by the second and third defendant is the farmland belonging to the 1st and 2nd plaintiffs as representatives of Ijimo Community. The area actually in dispute is through Saba of Ijimo, and Loja of Ijimo’s farmland on plan No.AB3023A drawn by A. B. Apatira licensed surveyor.
(c) The plaintiffs aver that there has been litigations on the area around the land in dispute between the plaintiffs’ Community and the 1st defendant’s Community.
(d) The plaintiffs say they will rely on all the judgments given in respect of all the cases referred to in paragraph above as issues estoppel and/or res judicata concluding the 1st defendant as to the possession of the plaintiffs land in dispute, thus;
(i) The plaintiffs will rely on plan No. AB3023A drawn by A. E. Apatira licensed surveyor dated 17/2/71 delineating the land in dispute between Chief Ogundele Abe representing Ijimo Community as the plaintiff and Chief Job Oyeyemi & Ors. (representing Erinmo Community, as defendants) on as suit No. C61/70 in Ijesha Divisional Grade A Customary Court which same plan was tendered and adopted for use in suit No. HIL/21/72.
(ii) The plaintiff will also contend that the area trespassed upon by the 2nd and 3rd defendants in this case related in all to the area delineated in plan No. A/C/2769 dated 6/6/73 drawn by O. O. Akingbogun licensed surveyor and filed by the 1st defendant in suit No. HIL/21/72 between Oba Job Oyeyemi representing Erinmo Community (plaintiff) and Loja of Ijimo, Chief Ogundele Abe for himself and representing Ijimo Community (defendants) and the plan referred to in paragraph 7 above.
(iii) The plaintiff will rely on judgment in suit No. HIL/21/72 between Elerinmo, of Ermino, Oba Job Oyeyemi (plaintiff) and Loja of Ijimo, Chief Ogundele Abe (defendant) delivered by Hon. Justice A. Ademola on 11/12/74 wherein he said “There would be judgment for the plaintiff or declaration sought, but in the capacity of representing both the Erinmo and Ijimo Community.”
The plaintiff will also rely on the judgment delivered by Hon. Justice Fakayode Acting Justice of Appeal as he then was in suit No. CAW/55/75 Between: Loja of Ijimo, Chief Ogundele Abe for himself and representing the Ijimo Community (defendant/appellant) and Elerinmo Oba Job Oyeyemi For himself and representing The Erinmo Community (plaintiff/respondent) delivered on 6th February, 1976 wherein he said:-
“The whole of Ijimo Community cannot by any injunction be driven away from land they had occupied and cultivated from decades without the forfeiture of their interests” for that trespass can only be dealt with on individual basis.” The judgment of the said court a pleaded as concluding the defendant as to the possession of the plaintiff in respect of the said land in dispute.”
(v) The plaintiffs say that the findings of fact in their favour in the judgment referred to in paragraph (ii) and (iii) above conclude the defendants as the plaintiffs possession of the area they are farming including the land in dispute which the 2nd and 3rd defendants have trespassed upon.”
Whereof the plaintiffs’ claim against the defendants jointly and severally for a declaration as against the 2nd and 3rd defendants is that the 1st defendant has no right to grant plaintiffs’ land situate, lying and being at Ijimo town near Ilesa particularly delineated in plan No. 3023A, dated 17th February, 1971 drawn by A. S. Apatira licensed surveyor and admitted as exhibit “A” in suit No. HIL/21/72 between: Chief Ogundele Abe, representing Ijimo Community and Chief Job Oyeyemi representing the Erinmo Community to the 2nd and 3rd defendants without their consent, authority and or approval” claim as follows:-
(a) The plaintiff’s claim against the defendants is for a declaration that the parcel of land granted by the 1st defendant to the 2nd and 3rd defendants at Ijimo town near Ilesa which is the parcel of land delineated upon plan No. 3023A, dated 17th February, 1971 drawn by A. S. Apalira licensed surveyor is unlawful and of no effect.
(b) injunction restraining the defendants by themselves, their servants, agents and or anyone from dealing with the land in dispute in contravention of the plaintiffs’ rights to the land in dispute.”
The defendants/respondents learned counsel however while basing their defence on the plea of estoppel per res judicata pleaded as follows:-
“The defendants admit paragraphs 6 and 11 of the amended statement of claim only to the extent that there have been litigations between the 1st plaintiff and the 1st defendant being declared as holding the land in dispute in the various litigations in trust for both the Erinmo and Ijimo Communities. The defendants aver that the plaintiffs have no locus standi to sue the 1st defendant in view of the plaintiffs’ admission that the judgment of the court pleaded constitute res judicata and especially as 1st defendant has been held by the courts to be owner of the land in dispute but holding them in trust for both Erinmo and Ijimo Communities.” In case 24/50, it was held on 24th May, 1951 as follows:-
“The Elerinmo is the owner of the land in issue but sued on behalf of both communities not one alone.”
The defendants in reply to paragraph 12 of the amended statement of claim say that the judgment and order of Court of Appeal in suit No. CAW/55/75 dated 6th February, 1976 were set aside by the same court on 24th March, 1976 and the said Court of Appeal ordered a rehearing of the appeal but the appeal was never reheard.
The defendants shall found on the ruling of the said Court of Appeal dated 24th March, 1976 and shall contend at the trial that the decision constitute res judicata between the plaintiffs and the 1st defendant.”
From the pleadings of the parties counsel contended both the plaintiff/appellant and defendants/respondents extensively and heavily relied on the plea of estoppel per rem judicatam. The claims before the trial court in the previous suit No. HIL/21/72 (exhibit A “A1”) filed at the High Court of Justice, Ilesha by the predecessor of the 1st defendant/respondent who was the plaintiff in that case as they appear on exhibit “A1” were as follows:-
“(a) A declaration of title under native law and custom to that piece or parcel of farmland which is about 2000 (two thousand) acres situate, lying and being at Ilobi, Ilesa North Division and bounded on the four sides by Idado Community land and Iwaraja Community land, Iwaraja Community land, Alana farmland and Erinmo Community land respectively.
(b) 500 (five hundred) pounds as damages for trespass on the said farmland committed by the defendant’s people, agents and/or servant since 1969.
(c) Injunction restraining the defendants, his people, agents and/or servants from further trespassing on the said farmland”.
The learned trial Judge found that at the conclusion of the case in exhibit “A1” judgment was entered in favour of the plaintiff (1st defendant in the court below and 1st respondent in this appeal). The learned trial Judge found that the trial court in exhibit “A1” (suit No. HIL/21/72 held inter alia as follows:-
“The conclusion is clear and in the words of part of the judgment in exhibit “A1” “I am satisfied that Elerinmo is the rightful person to control the land on behalf of both communities.”
The court went further to observe that the court in exhibit “A” further said: “There would therefore be judgment for the plaintiff for the declaration sought but in the capacity of representing both the Erinmo and Ijimo communities and whilst ordering injunction, the court in exhibit “A1” said. “Any member of Ijimo Community who wants land therefore farming must obtain it by the consent of the plaintiff” (Italics mine)
Finally, counsel concluded his argument by submitting that from the decision in exhibit “A1”, it was apparent and evident that title was in issue between the parties and the same had been resolved in favour of the defendants/respondents. The learned trial Judge therefore had no difficulty in concluding that the plaintiff/appellant’s action is caught by the plea of res judicata. He submitted that the learned trial Judge properly directed himself on the claim that the appellant’s action is concluded by the equitable doctrine of res judicata. He urged us to dismiss the appeal.
Now the law and resolution of this appeal. I have endeavored to fully treat the arguments of learned counsels for the parties above from the briefs and the judgment of the learned trial Judge and parties counsel are of the view that the plea of res judicata is pertinent in this case. The only point of difference in the appellant’s pleading and the argument is the identity of the land in dispute. And the appellant’s counsel therefore urged this court to remit the case back to the lower court for trial where evidence can be adduced to settle that issue. That it is premature to conclude the plaintiff/appellant’s case out without taking evidence as to the identity of the land in dispute.
I have painstakingly gone through the records, the ruling of the learned trial Judge, the arguments of learned counsel for the parties, I wholeheartedly agree with the appellant’s learned counsel that the identity of the land in dispute is not clear. The respondent counsel admitted in his argument above (see above) that the land around the land in dispute is not clear. Nothing is absolutely clear here. I resolve this sole issue in favour of the plaintiff/appellant and therefore hold the view that it was actually premature to conclude the case of the appellant on mere affidavit evidence as to the identity of the land in dispute which is a crucial elements to the plea of res judicata.
Accordingly I allow this appeal and remit the case back to the lower court before another Judge for trial.
I will not end this judgment at this juncture, as it affords me an opportunity to elucidate and explain this crucial equitable doctrine of res judicata and its effects in civil litigation. (And indeed criminal litigation too).
The learned Authors of Black’s Law Dictionary, Eight Edition at page 1336 defines the term “res judicata.”, otherwise fully known as “res judicata pro veritate accipitur” (is Latin for a thing adjudicated is received as the truth) is defined thus:-
“An issue that has been definitively settled by judicial decision or judgment is an affirmative defence barring the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been – but was not – raised in the first suit.” (Italics mine).
Three essential elements are involved in the plea:-
(3) An earlier decision on the issue
(4) A final judgment on the merits and
(5) The involvement of the same parties, or parties in privity with the original parties.
What are the effects of a successful plea of the doctrine?
The first is the effect of foreclosing any litigation of matters that never have been litigated, because of the determination that they should have been advanced in an earlier suit. The second is the effect of fore-closing relitigation of matters that have once been litigated and decided.
The first of these, that is preclusion of matters that were never litigated, goes under the name “true res judicata” or the names “merger and bar”. The second doctrine that is preclusion of matters that have once been decided is usually called “collateral estoppels”.
The two combined, depending on the meaning or rationale of it is termed res judicata or fully res judicata pro veritate accipitur, as translated earlier, is Latin for “a thing adjudicated is received as the truth” (italics mine)
Another point it behooves me to elucidate on is that the doctrine must be specifically pleaded by the party who wants to invoke it; otherwise it goes to no issue.
See; Chukwurah v. Ofochebe (1972) 12 SC 189; Owoniyi v. Omotosho (1961) All NLR 304
In Kwasi Agyako v. Nazir Zok & Co. (1941) 10 WACA 277.
In Kwakwasi Agyako case (supra) it is held that estoppel per res judicata should be pleaded but if it is obvious it will still succeed although not pleaded.
On the issue of burden of proof of res judicata
It is settled that the burden is on the party who sets up the defence of res judicata to sustain the plea conclusively. As stated earlier, if the plea is established, such previous judgment is conclusive and stops the plaintiff from making any claim contrary to the decision of the previous judgment.
See Oshodi v. Oyifunmi (2000) 13 NWLR (Pt.684) at 28.
In the final analysis, I allow this appeal and remit the case back to the court below and before another Judge of the High Court of Osun State of Nigeria for hearing on the merit. I assess the cost of this appeal at N4,000.00k against the respondents in favour of the appellant.
Other Citations: (2006)LCN/2132(CA)
