Lateef Tiamiyu (Substituted for Tiamiyu Akanmu (Deceased) V. Lasisi Emiola Olaogun (for Himself and on Behalf of Olaogun Family) (2008)

LawGlobal-Hub Lead Judgment Report

CHIDI NWAOMA UWA, J.C.A.

The Respondent as plaintiff, in his amended statement of claim claimed against the defendant as follows:

“(1) Declaration that the plaintiffs are entitled to the Statutory or Customary Right of Occupancy in respect of all that piece or parcel of land situate, lying and being at Ode’s compound.- Olupoyi Street, Corner Tapa, Alagogo Area, Ibadan, bounded on the four sides as follows:-

On the first side by Ganiyu Aboderin’s land;

On the second side by Abioye’s land;

On the third side by Lasisi Eniola Olaogun’s land;

On the fourth side by Adekunle Akere’s land.

(2) The sum of ONE THOUSAND NAIRA (N1,000.00) being damages for trespass committed by the Defendant at the said Plaintiffs’ land, situate, lying and being at Ode’s compound, Olupoyi Street, Corner Tapa, Alagolo Area, Ibadan bounded on the far sides as follows:-

On the first side by Ganiyu Aboderin’s land;

On the second side by Abioye’s land;

On the third side by Lasisi Eniola Olaogun’s land;

On the fourth side by Adekunle Akere’s land.”

(3) Perpetual injunction restraining the defendant, his servants, agents and privies from further acts of trespass on the plaintiffs’ said land or from further entry thereon or interference with the plaintiffs’ rights of ownership and possession thereof”

In answer to the above claim, the defendant filed his statement of defence and counter claimed as follows:-

“Whereof the defendant counter claims:-

(a) Declaration that the defendant is entitled to statutory Right of Occupancy to all that piece and parcel of land lying and being at Ode’s compound- Alagolo Area, Oritamerin, Ibadan edged red on Plan No. OY/156/96/D3 dated 14th November, 1996 made by A.O. Adebogun, land Surveyor Ibadan:

(b) N5,000:00 damages for trespass that has been committed and is presently being committed on the land in dispute;

(c) Perpetual injunction restraining the plaintiffs’ by themselves, their servants, agents and privies from committing any further trespass on the land in dispute.”

In course of hearing, the defendant/appellant on the 14th day of July, 2003 filed a motion on Notice to amend his statement of defence and counterclaim. The learned trial judge in his ruling of 9/10/2003 refused the application and proceeded with the substantive matter. In his judgment of 10/5/04 the learned trial judge dismissed the plaintiff’s action for declaration, trespass and injunction and non-suited the defendant’s counterclaim.

The defendant/appellant dissatisfied with the judgment filed a Notice of Appeal dated 17th June, 2004, containing four (4) grounds. The plaintiff/respondent also filed a cross appeal by a Notice of Appeal dated 15th July and filed on 19th July 2004.

The appellant formulated two issues for determination, they are:-

(1) Whether the trial judge was justified in his refusal to grant the counterclaim of the appellant based on documentary evidence produced at the trial after dismissing the plaintiff/respondent’s claims.

(Grounds 1-3)

(2) Whether the learned trial judge was justified in non-suiting the counter claims of the defendant/appellant based on the totality of the evidence on record.

(Ground 4)

The Respondent in response to the two issues formulated by the appellant gave Notice of his intention to raise a preliminary objection to the appellant’s appeal, but in the alternative, should the preliminary objection be overruled, adopted the two issues as formulated by the appellant, the two issues were argued together.

The respondent has, following a Notice of preliminary objection pursuant to Order 3 Rule 15 of the old Rules now Order 10 Rule 1 challenged the competence of Ground 1 as well as the Issue distilled from the Ground. The Ground 1 is in respect of the interlocutory decision of the lower court for which leave should have been obtained before being filed.

The learned counsel for the respondent Kunle Faokunla Esq. submitted that Ground 1 of the Grounds of Appeal, the issue and arguments in respect of Grounds 1-3 formulated under issue No.1 of the Appellant’s brief is complaint about the refusal of the trial court to grant the Appellant’s application for Amendment dated 14th of day July, 2003.

He argued that there is no pending valid appeal against the Ruling of 9/10/2003 in that the Notice of Appeal was filed on 17/6/2004 nine months after the Ruling and without the leave of this court. He cited and relied on the cases of B.O.S.I.E.C. v. Kachalla (2005) pt 275 AFWLR page 518 at page 543 and Adebanjo v. Ogun State Sport Council (2005) pt 279 AFWLR 1319.

Learned Counsel submitted that failure to seek and obtain the leave of court renders the Appeal from the interlocutory judgment/ruling incompetent.

Furthermore, since appellant’s issue No.1 and arguments thereon were drawn from grounds 1, 2 and 3 of the Appellant’s Grounds of Appeal, which are complaints on the trial judge’s ruling refusing the amendment sought, the grounds, the issue as well as all arguments in support are incompetent and should be struck out. Learned Counsel relied on Adebanjo v. Ogun State Sports Council (supra). Finally, counsel argued that it is proper for the Respondent to raise this preliminary objection in the Respondent’s brief and relied on Adebanjo’s case (supra) and Alhaji Tahir Maigoro v. Alhaji Jibrin Garba (1999) 10 NWLR (pt 624) at 570.

Responding to the preliminary objection, the learned counsel for the appellant J.O.A. Ajakaiye Esq. in his reply brief and cross-respondent’s brief dated 23/6/06 filed on 26/6/06, argued that the appeal is against the proceedings and judgment of the lower court. He argued that the Supreme Court has advised in several cases that no separate appeal should be brought against different rulings by the trial judge within the hearing or trial, that any appeal arising from the proceedings should be made in the appeal against the final judgment, and referred to Order 3 Rule 22 of the Court of Appeal Rules (2002) and the case of Dr M.G.O. Iweka v. SCOA Nigeria Ltd (2000) 3 SC 21 at 39.

Further that this court is empowered to amend the writ of summons, the Statement of Claim or defence as the High Court could have done. Iweka v. SCOA (supra) was relied on. That what the appellant has appealed against is the refusal of the trial court to grant the amendment sought, which turned out to have inhibited the grant of the counter claims, which led to the non-suiting.

Finally that Section 16 of the Court of Appeal Act empowers this court to correct the error of the trial court instead of remitting the matter back to the high court for the purpose of the amendment sought that is, “Salamotu Onigba” to read “Rabi Onigba” as given in evidence in Exhibit ‘D3’ before the High Court. He cited and relied on the case of Emiri and Ors v. Irmie & Ors (1999) 4 SC (part 1) 1. He urged this court to discountenance the respondent’s objection.

It is on record that on the 14th day of July, 2003 before the trial court, the appellant sought for amendment of his pleadings which was refused in a Ruling delivered on the 9th day of October 2003.

The Notice of Appeal dated 17th day of June, 2004 filed the same day, was in respect of the interlocutory Ruling and the final judgment. Issue No. 1 was objected to in the preliminary objection as being incompetent. Appellant’s issue NO.1 was distilled from Grounds 1, 2, and 3. The appellant in his two issues covered supposedly, an appeal against the interlocutory Ruling of 9th October, 2003 and the final judgment of 10th May 2004.

Ground 1 of the Appellant’s Grounds of Appeal reads:

“The learned trial judge erred in law in refusing to grant the counter claims of the defendant/appellant based on technicalities created by the learned trial judge by disallowing the defendant on three different occasions in the trial from amending the name Salamotu Onigba to read Rabi Onigba to agree with the evidence led at the trial as contained in Exhibit ‘D2’; as the justice of the case demanded.

PARTICULARS.

(i) The situation which precluded the learned trial judge from granting the counterclaims of the defendant was created by the learned trial judge himself, his refusal to grant the amendment sought by the defendant to correct the error or mistake caused by the defendant’s counsel in not pleading the correct names of Onigba.”

The Right of Appeal is a creation of the Constitution. Section 241 and 242 (1) of the 1999 Constitution are germane to the point in issue. The two sections create rights of appeal against final as well as interlocutory decisions of designated courts including the court from which decision the instant appeal evolved. Section 241 deals with appeals as of right while Section 242 (1) of the 1999 Constitution provides for appeals for which leave must be obtained. S. 241 of the 1999 Constitution provides:

241 – (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:-

(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;

(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;

(c) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;

(d) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;

(e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;

(f) decisions made or given by the Federal High Court or a High Court-

(i) Where the liberty of a person or the custody of an infant is concerned,

(ii) where an injunction or the appointment of a receiver is granted or refused,

(iii) in the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise,

(iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, and

(v) in such other cases as may be prescribed by any law in force in Nigeria.

(2) Nothing in this section shall confer any right of appeal-

(a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action;

(b) from an order absolute for the dissolution or nullity of marriage in favour of any party who, having had time and opportunity to appeal from the decree Nisi on which the order was founded, has not appealed from that decree nisi; and

(c) without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.

While S. 242 provides:

(1) Subject to the provisions of section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.

(2) The Court of Appeal may dispose of any application for leave to appeal from any decision of the Federal High Court or a High Court in respect of any civil or criminal proceedings in which an appeal has been brought to the Federal High Court or a High Court from any other court after consideration of the record of the proceedings, if the Court of Appeal is of the opinion that the interests of justice do not require an oral hearing of the application.

A communal reading of the forgoing sections clearly reveals that appeals inter alia against interlocutory decisions of the stated courts where such decisions are neither in respect of injunctive relief nor on grounds of law alone are never appeals as of right. The appellant must obtain the leave of either the trial court or the Court of Appeal to give life to his right of appeal by virtue of section 242 (1). A further requirement the appellant must meet comes through in the light of s. 243 which makes right of appeal exercisable in compliance with rules of practice of this court or the provisions of Acts of the National Assembly in place. One of such Acts, is the Court of Appeal Act.

Section 25 (2) of the Court of Appeal Act, stipulates the period for the giving of Notice of Appeal or Notice of Application for leave to appeal as fourteen (14) days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.

S. 25 provides:

(1) Where a person desires to appeal to the Court of Appeal he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of court within the period prescribed by the provision of subsection (2) of this section that is applicable to the case.

(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are:

(a) In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision;

(b) In an appeal in a criminal cause or matter, thirty days from the date of the decision appealed against.

(3) Where an application for leave to appeal is made in the first instance to the court below a person making such application shall, in addition to the period prescribed by subsection (2) of this section, be allowed a further period of fifteen days, from the date of the determination of the application by the court below, to make another application to the Court of Appeal.

(4) The Court of appeal may extend the periods prescribed in subsections (2) and (3) of this section except in the case or a conviction involving the sentence of death.

The effect of the foregoing is that where an appeal is against the interlocutory decision of a High Court, the right of the Appeal is exercisable after the appellant had obtained, by virtue of s. 242 (1) of the Constitution, the necessary leave. Since notices of such appeals must be filed within 14 days, it follows that the appellant does so only after acquisition of the leave the Constitution places as a precedent to the exercise of the right of appeal in respect of interlocutory decision.

In the instant case, the interlocutory decision against which grounds 1, 2 and 3 in the appellant’s Notice were filed was delivered on 9/10/2003. The final decision of the lower court was delivered on 10th May, 2004. The notice of the instant appeal was filed on 17/6/2004 without leave having been obtained in respect of those grounds which pertained to the interlocutory decision of the lower court, the appellant’s notice of the appeal was filed nine (9) months after the interlocutory decision without the leave of this court. What is the effect of not obtaining such leave?

It is the law that an appellant who did not appeal against an interlocutory decision within the stipulated time may combine an appeal arising from such decision with an appeal against the final judgment of the court. However, leave must be obtained in respect of the ground against the interlocutory decision. Where the time to appeal against the interlocutory decision has expired, the appellant must have time extended for him by the Appeal Court to validate the appeal. Failure to obtain such leave and extension renders the appeal from such interlocutory judgment/decision incompetent. The appellant’s counsel argued that a ground in respect of an interlocutory appeal could be raised in the appeal against the final judgment. I agree. Such appeal however should be a competent and valid appeal, filed with the leave of court and within the 14 days stipulated by S. 25 of the Court of Appeal Act. See Adgbanjo v. Ogun State Sports Council (supra) also cited by the learned counsel for the respondent.

The proper procedure must be followed to combine the two appeals, the appellant must obtain leave of the Court of Appeal to file out of time against the interlocutory ruling if the Notice is filed after the stipulated fourteen days. “Leave” is a condition precedent. It determines the jurisdiction of the appellate court to entertain the appeal, specifically to entertain the ground and issue where leave should have been sought. It is settled that where this condition is necessary but has not been fulfilled there is, legally, no appeal.

I am in agreement with the learned respondent’s counsel that grounds 1, 2, and 3 are based on the refusal of the amendment sought before the trial court, all arguments in their support, with issue formulated there from are incompetent and ought to be struck out. In the same Adebanjo’s case it was decided that where a ground of appeal is incompetent and it is being argued with another ground from which one issue is raised and argued together, the seemingly competent ground is infested and also rendered incompetent.

In the final analysis, the preliminary objection on grounds 1, 2 and 3 contained in issue one is hereby upheld. Having upheld the objection as having merit, grounds 1, 2, and 3, along with issue one are hereby struck out. All arguments of the appellant’s counsel in their respect are struck out.

That leaves us with ground four (4) and issue two (2) as formulated that is:

“Whether the learned trial judge was justified in non-suiting the counterclaims of the Defendant/Appellant based on the totality of the evidence on record.”

(Ground 4)

The learned counsel for the appellant argued that the learned trial judge having come to the conclusion that the defendant’s plea of estoppels succeeds, and holding that the plaintiff’s action for declaration cannot succeed against the defendant who are in possession of the land in dispute shown in their pleadings and evidence, that the same trial judge cannot in the counter claim rob the appellant of the statutory right of occupancy to the land in dispute. The appellant was held to have established possession against the plaintiff/respondent.

He argued that there was no defence. So the counterclaim and all that was left was to find for the defendant/appellant and cited the case of Nwadike v. Ibekwe (1987) 12 SC 14 at 46.

Further that the call on the parties by the learned trial judge to address him on the issue of non-suit, was an exercise in futility following the above finding that the appellant was in possession, and that the respondents had no defence to the counter claim and referred to the case of Anyankwo v. ACB Ltd (1976) 2 SC 41 at 62.

He argued that the judgments tendered were not only a defence to the claims of the plaintiff/respondent which was dismissed, they are evidence of title of the appellant to the house and land in dispute and his counterclaim, relied on the cases of Adomba v. Odiase (1990) 1 SCNJ 135 at 142. Ajuwa v. Odili (1985) 9 SC 17 at 26, 38-64 and Nwadialor v. Onyia (1971) UILR 524 at 528-529. Further that based on the totality of evidence on record that the learned trial judge was wrong in his failure to grant the counterclaim of the appellant and relied on Mogaji v. Odofin (1978) 4 SC91 at 93.

He urged this court to set aside the findings of the learned trial judge on the question of non-suiting of the appellant’s counterclaim and to confirm the learned trial judge’s findings and award the claims in the counterclaim in favour of the appellant, and cited the cases of Fasanu v. Adekoya (1974) 1 All NLR (pt 1) 35 at 41-42; Lawani v. Dawodu (1972) 8 and 9 SC 83 at 115-117; Federal Commissioner for Works and Housing v. Labadebi (1977) 11, 12 SC 15 and Akibu v. Opaleye (1974) 11 SC 189 at 2003.

In response, the learned respondent’s counsel submitted in respect of issue two, that the fact that the learned trial judge held that the plea of estoppel raised by the appellant succeeds does not mean that the judgments tendered by the appellant in support of this plea could be used as evidence of title and relied on the case of Dokubo v. Omani (1999) 8 NWLR pt 616 page 647 at 669, paragraphs F-G, where the court held that estoppel where pleaded successfully affect the right of a party to proceed with the action in the lower court and the jurisdiction of the court to entertain it. He argued that the judgments tendered by the appellant were not specifically related to the aspect of the case for which the document is produced in evidence, he argued that the judgments were merely tendered as what the appellant collected from the vendors and not as proof of title, he cited and relied on the case of Nwaga v. Regd Trustees Recreation Club (2004) FWLR Pt.190, pages 1360 at 1380-1381, paragraphs G-A,

Finally, that the trial judge was right to refuse the counterclaim of the appellant, and that the appeal should be dismissed.

A counter-claim is a legal procedure which allows the defendant to maintain an action against the plaintiff as if it is a separate suit. It is an independent action and does not form part of the original action. It is an action by the defendant against the plaintiff when the counterclaim is directly related to the principal claim. See Oyegbola v. Esso W.A. (1966) 1 All NLR 107 and General Yakubu Gowon v Mrs Edith I. Ike Okongwu (2003) 1 SCNJ 453.

From judicial authorities, an order of non-suit is to be made in the following circumstances.

(a) Where the plaintiff has not failed in toto or entirely to prove his case; and

(b) Where the defendant is not in any event entitled to the court’s judgment; and

(c) Where no wrong or injustice to the defendant would be caused by such order.

See Bernard Okoebor v. Police Council & 2 Ors (1998) 9 NWLR (Pt 566) P 534; E.E. Egwu v. Florence Stephen Modunkwu (1997) 4 NWLR (Pt 501) p. 574; Akinsuroju v. Joshua (1991) 22 NSCC (pt 11) 49; (1991) 4 NWLR (pt 187) 542. In Edokpolo v. Asemota (1994) 7 NWLR (pt 356) 314 at.328 it was held per Ogundare, JCA(as he then was) that:

“A trial court may also non-suit the plaintiff where he has established by evidence some right or interest in the subject matter in dispute such that to dismiss his action would result in the destruction of the right or interest and thereby occasion a miscarriage of justice. ”

The guiding principle to consider is whether an order of non-suit would be wronging the defendant; and on the other hand whether the order of dismissal would be wronging the plaintiff. See Amobi v. Texaco Africa ltd. (1972) 3 SC 104 and Anyaoke v. Adi (1986) 3 NWLR (Pt31) 731.

In the judgment of the trial court in respect of the plaintiff’s claim, the court held: at page 75 of the printed record thus:

“In my opinion both estoppel have been raised by the defendant in this case. And having come to the conclusion that the defendant’s plea of estoppel succeeds the plaintiff’s action for declaration cannot succeed against the defendant who by pleadings and evidence is in possession of the land in dispute.”

In view of the above holding the learned trial judge dismissed the plaintiff’s action for declaration, trespass and injunction. The defendant (now appellant) in his counterclaim earlier reproduced in this judgment, also sought an order for declaration, award of damages for trespass and injunction. The defendant counter claimant as in a claim filed separately must establish his case of declaration of title etc, Evidence therefore must be led in proof of the counterclaim. The success of the defence of estoppel of the defendant is not automatic success in his counterclaim.

The fact that the plaintiff’s case failed and the court decided that from the pleadings and evidence the defendant is in possession; this being a separate action title must be established by the defendant counter claimant in his claim, which is distinct from the former.

Paragraph 3 (c) of the Statement of Defence and counterclaim pleaded how Liasu Onilu relinquished his title to Salamotu Abebi under Native Law and Custom for Fifty-five Pounds. Exhibit ‘D2’ which was supposed to reflect the sale, instead reflected a transaction between Liasu Onilu and

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by the learned trial judge he run into a technical hitch, and in the interest of justice by the order of non-suit has a second chance of presenting his case. See Ogunloye v. Durosinmi (1975) 12 SC 49 and Okpaloko v. Umeh (1976) 9-10 SC 269.

The plaintiff/respondent by evidence established that original ownership of the land in dispute was by Olaogun family, the defendant/counterclaimant needed to prove that Ogunbode Olaogun family divested their interest in the land in dispute to Iliasu Onilu, before it came down to the defendant counter claimant from Salamotu Onigba or Rabi Onigba whatever the case may be.

In the present case the learned trial judge had earlier held that the plaintiff now respondent was not entitled to his claim. In the defendant/appellant/counter claimant’s case for declaration and title, through his pleadings and evidence showed that his case had some merits but owing to some technical fault or defect in the handling and presentation of the case as with the mix-up with the Salamotu’s and Onigbas, the counterclaimant as plaintiff was unable to prove his case. At the same time, the defendant not being entitled to the judgment of the court, justice demands that the plaintiff be given the opportunity or option if he so wishes, to relitigate the issue and, correct his defects or hitches which were responsible for his failure on the previous occasion. Giving the counter-claimant judgment would therefore not be appropriate not having established his title.

The counter claimant not having failed totally, the plaintiff/defendant now cross-appellant not entitled to judgment, a non-suit is the proper order. See Edigin v. Ovbiagbonhia (1993) 5 NWLR (p 293) 367.

In I.B.W.A.V. Unekalamba (1998) 9 NWLR (pt 656) 245. Per Nsofor. JCA (as he then was) had this to say on order of non-suit:

“The power in a court or of a court to order a non-suit is discretionary”

The power of a court to order a non-suit being a discretionary one, the order of the trial judge cannot be disturbed by this court, more especially where no wrong or injustice has been occasioned on the plaintiff/counter-claimant by so doing. There is no harm in the counter claimant being given a second chance to prove his title to the land in dispute.

Finally, where the failure of a plaintiff to prove his case is due to a technical hitch, as in this case and the evidence adduced shows that the plaintiff is entitled to his claim or part of it and the defendant is not entitled to judgment, the proper order to make is that of non-suit. See Ejiofor v. Onyekwe (1972) 1 All NLR (pt 2) 527.

In the final analysis I hold that the trial judge was right and justified in non-suiting the counterclaims of the defendant/appellant counterclaimant based on the totality of the evidence before the trial court. The appeal therefore fails and is hereby dismissed.

The judgment of M.A. Owoade, J. of 10th day of May, 2004 is hereby affirmed.

CROSS APPEAL

The cross-appellant was the plaintiff in the trial court. The appeal is against the judgment of Honourable Justice M.A. Owoade, Oyo State High Court of 10th Day of May, 2004.

The plaintiff’s claim in the amended statement of claim is at page 19-20 of the records, reproduced in the main appeal in which the cross appellant was a respondent. The cross appellant’s case is that the land in dispute originally belonged to the Olaogun family of which the plaintiff/Cross appellant is a member. Olaogun invited Iliasu an Ilorin drummer to live with him on the land, Olaogun begat Ogunbode, after Olaogun’s death, Ogunbode allowed Iliasu to remain on the land while his wife lived in another house.

That Ogunbode witnessed a loan agreement between Iliasu and his wife. The defendant/respondent is said to have trespassed into the house and was challenged. The cross appellant denied that Ogunbode ever sold the house to anybody, denied also Ogunbode ever witnessing any agreement or purchase receipt dated 5/8/39 or any purchase receipt at all. The plaintiff/cross-appellant denied the existence of any court suits, proceedings or judgments binding them or estopping them from instituting this suit in the lower court or from laying claim to the land in dispute. At the close of hearing, judgment was delivered on 10th May 2004 in which the learned trial judge dismissed the plaintiff’s action for declaration, trespass and injunction and non-suited the defendant’s counterclaim.

The plaintiff/appellant herein referred to as the cross-appellant appealed against the judgment and filed his Notice of Appeal containing five (5) grounds from which three (3) issues were formulated for determination. They are:-

1. Whether the learned trial judge was right in holding that the defendant/respondent has sufficiently discharged the burden of proving estoppel as against parties in this case.
2. Whether the learned trial judge was justified when he held that the evidence of Ogunbode in Exhibit OJ is an admission against interest under the provision of Sections 19-26 of the Evidence Act.
3. Whether the Defendant/Respondents counter-claim is a proper case for a non-suit.

In response, the learned counsel for the Defendant/Respondent formulated two (2) issues for determination, which are:

1. Whether the learned trial judge was justified in holding that the defendant/appellant in the case succeeded in his plea of estoppel per rem judicatam and issue estoppel raised (sic) his pleading and the evidence given on record.
2. Whether the defendant/appellant’s counterclaim in the suit is a proper case for non-suit.

I will resolve the issues as formulated by the cross appellant, starting with issue 3.

In respect of the third issue, the learned cross appellant’s counsel submitted that the learned trial judge exercised his discretion to non-suit the defendant/respondent’s counter claim based on wrong principle and irregularity amounting to error of law. He argued that the state of facts before the trial court proffered by the defendant/respondent will not justify the exercise of the lower court’s discretion to non-suit the counter claim and relied on the case of Ngwu v. Ozaugwu (1991) SCNJ page 1. Learned counsel agreed that a counter claim is a cross action and not merely a defence to the plaintiff’s claim. He submitted that the defendant/respondent failed to prove his title in any of the five ways laid down in decided authorities and did not offer any evidence in proof of his counter claims, he relied on the following authorities:

Oruban v. Gbondun (1999) 11 NWLR pt 628 page 661; Idudun v. Okumagba (1976) 1 NWLR 200 and Mogaji v. Cadbury (Nig) Ltd (1985) 2 NWLR (pt 7) 393. He said the following must be proved.

i. Traditional evidence

ii. Production of document of title

iii. Proof of acts of ownership, numerous and positive enough to warrant an inference that the person is the true owner;

iv. Proof of long possession and enjoyment of the land under Section 146 of the Evidence Act; and

v. Proof of possession of connected or adjacent land.

Further that the defendant/respondent pleaded in paragraph 3 (c) of his statement of defence that one Liasu Onilu sold the house to Salamotu Onigba while Exhibit ‘D2’ tendered by the defendant/respondent showed a sale by one Liasu Onilu to Rabi Onigba, and in his evidence that he bought the house from one Salamotu Onigba who had earlier purchased from Liasu Onilu but later changed his evidence to say that he bought from Salamotu Abebi. He failed to give evidence that Liasu Onilu sold to Rabi Onigba and/or how Salamotu Onigba or Salamotu Abebi came to own the land and house in dispute. Further that the defendant/respondent did not give evidence to relate them to each other and did not give evidence to explain the relationship between Rabi Onigba and the two Salamotu he mentioned.

The learned counsel contended that the root of title of the defendant/respondent in support of his counterclaim was not proved. He argued that in the evidence of DW4 the surveyor, he stated that nobody was in occupation of the houses, therefore that the defendant/respondent who was not in occupation cannot claim to be in possession of the House, he cited and relied on the case of S.O. Igwegbe v. Lawrence Ezema &, 4 Ors (1999) 6 NWLR pt 606. Also, that the defendant/respondent having failed to prove his counterclaim, the trial judge should have dismissed the counterclaim.

Samuel Adeleke &. 4 Ors v. Chief Adegbenro Balogun & 4 Ors (2000) 4 NWLR Pt 651.

The learned counsel for the cross appellant urged this court to interfere with the trial court’s exercise of discretion which ordered a non-suit instead of a dismissal as it was based on wrong principle and or tainted with irregularity; relied on C.G.C. Nig. ltd. v. Alhaji Hassan Baba (2004) All FWLR Pt 196 P. 762.

In response to the third issue, the learned counsel to the defendant/respondent submitted that the counterclaim should have been granted while dismissing the plaintiff’s case. He argued that the things the learned trial judge used to defeat the plaintiff’s claims gave title or possession to the defendant, which means the plaintiff has no answer to the counterclaim of the defendant, and that judgment should have been given in favour of the defendant and that the judgment which Salamotu Abebi had against the plaintiffs predecessors (Exhibits ‘D6’-‘D7’) with Exhibit D1 should be to the benefit of the defendant, learned counsel relied on Nwadike v. Ibekwe (1987) 12 SC 14, and Ababio II v. Priest in Charge of Catholic Mission 2, WACA 380.

He urged this court to dismiss the cross appeal and allow the defendant/appellant’s appeal and give judgment on his counterclaim.

The question as to whether the defendant/respondent’s claim is a proper case for a non-suit, in the third issue has already been dealt with in the main appeal. Resolving same in the cross appeal would be a waste of judicial time. That leaves us with issues 1 and 2.

In his brief of argument, in respect of issue 1, the learned cross-appellant’s counsel argued that the defendant/respondent failed to prove that the parties and/or privies, the subject matter and the claims are the same in the proceedings and judgment in Exhibit ‘D6’. Learned counsel relied on the case of Okafor Adone & 2 Ors v. Ozo Gabriel Ikebudu & 2 Ors (2001) Vol. 36 WRN p. 24 at D. 44 lines 15-30, which set out the conditions for the plea of estoppel per rem judicatam to succeed, what a party relying on it must establish. Also Alhaji Yakubu Alabi Aro v. Saadu Adisa Aro & 1 Or (2000) 3 NWLR Pt 649 page 443 at 457. E.

The learned cross-appellant’s counsel argued that it is the party relying on the plea of estoppel per rem judicatam that must establish all the requirements and pre-conditions, that the burden of proof lies on the party who sets up the plea of res judicata or issue estoppel, to establish all the preconditions conclusively. Alhaji Yakubu Alabi Aro v. Saadu Adisa Aro (supra)

Further that Exhibits ‘D6’ and ‘D7’ were tendered by the Defendant/Respondent as part of documents handed over to him by his vendor and that no evidence was led in support of any plea of estoppel per rem judicatam and that Exhibits ‘D6’ and ‘D1’ were not tendered in support of the plea.

In Okafor Adone & 2 Ors (supra) cited and relied upon by the learned counsel for the cross-appellant the Supreme Court gave the requirements for the plea of estoppel per rem judicatam to succeed, namely:

i. That the parties or their privies are the same in both the previous and present proceedings;

ii. That the claim or issue in dispute in both actions is the same;

iii. That the res or the subject matter of the litigation in the two cases is the same;

iv. That the decision relied upon to support the plea of estoppels per rem judicatam must be valid, subsisting and final and

v. That the court that gave the previous decision relied on to sustain the plea must be a court of competent jurisdiction.

The learned counsel submitted that to sustain a plea of res judicata all the conditions must co-exist and that a break in the chain renders the plea unsustainable, he argued that the defendant/respondent did not testify that any of the pre-conditions or requirements of estoppel per rem judicatum is applicable to his case. That, the defendant/respondent’s counsel’s address cannot form or be valued as evidence in favour of the defendant/respondent as to the preconditions or requirements of estoppels per rem judicatum or take the place of evidence, which he said was lacking in this case, he relied on Alhaji Yakubu Alabi Aro (supra) and Zein v.

Geidam (2004) pt 237 AF WLR page 457 at 480 parag. A. Further that the defendant/respondent did not testify or give evidence in support that the parties in Exhibit ‘D6’ and ‘D7’ or their privies are the same in the previous and present proceedings, that the claim or issue in dispute in both actions is the same and that the res or the subject matter of the litigation in the two cases is the same.

He said that the pleadings of the defendant/respondent cannot be substituted for evidence. He argued further that the learned trial judge was wrong when he found that the defendant/respondent proved estoppel per rem judicatam and or issue estoppel, and that Exhibits ‘D6’ and ‘D7’ were not pleaded with full particulars, i.e. the facts and circumstances relied on.

He submitted that in the defendant/respondent’s statement of defence issue estoppel was not pleaded, contrary to the learned trial judge’s finding in paragraph 3(h) of his statement of defence that issue estoppel was pleaded. He urged this court to hold that the learned trial judge was wrong to have held that the defendant/respondent had sufficiently discharged the burden of proving estoppel per rem judicatam and issue estoppel.

In response, the learned counsel for the defendant/respondent responded to the plaintiff/appellant’s first and second issues together under his issue one, which I shall split into two bits. He submitted that the plaintiff/cross appellant and his witnesses were cross-examined meticulously at the hearing, on the previous suits and judgments on which estoppel per rem judicatam and issue estoppel were raised. He highlighted the evidence in chief and cross-examination of the PW1 (Abisoye Akanbi), page 21 lines 32-33, page 22 lines 1-20; PW2 (Salami Tela) and PW4 (Lasisi Enioia Olaogun) all denied being aware of any previous suits in respect of the land in dispute and PW4 stated that Ogunbode (father of the 2nd plaintiff) never gave evidence in any case between Liasu and salamotu. Further that the defendant built up his case by the cross examination of the plaintiff and their witnesses, and that he had established what he needed for the plea of estoppel per rem judicatam to succeed, which he put to the plaintiff and his witnesses. He submitted that the subject matter, the parties and the claims in the two suits are the same and competent courts decided the two cases and cited the following cases in support of his argument. Yoye v Olubode & Ors (1974) 10 SC 209 at 221-224; Fadiora v. Gbadebo & Ors (1978) 1 LRN 97 at 101-102; Odjedwedje & Ors v. Echanokpe (1987) 3 SC 47 at 67-74, 100-102 and Odutola v. Oderinde & Ors (2004) Vol. 118 LRCN 4072 at 4082-4083. Further that the trial judge was right in holding that the plaintiffs cannot re-litigate on title to the land in dispute the predecessors in title have litigated over the same issue.

On issue estoppel the learned counsel argued that the plaintiff is privy to Ogunbode and cannot plead or give evidence that Exhibit ‘D2’ is not a document of sale of land but of a loan, when in Exhibit ‘D3’ (at page 99 of the record) Ogunbode had given evidence (at page 100 of the record) that the court should prefer Exhibit ‘D2′ to the evidence he gave in court. He urged this court to dismiss the Plaintiff/cross appellant’s complaint as it is baseless.

Paragraphs 3(g) and (h) of the statement of defence and counterclaim pleaded thus:

“(g) The predecessors of the plaintiffs in this suit in suit 181/51 Adeyemi & 4 Ors sued the defendant’s vendor to court over the said property and lost. The defendant’s case will be founded on the proceedings and judgment thereon as estopping the plaintiffs from instituting this new suit;

(h) The said predecessors-in title of the plaintiffs appealed against the aforesaid judgment and lost in Appeal No. 12/52. The defendant’s case will be founded on all these proceedings and judgment as estoppel per rem judicatam and also as evidence in proof of the defendant’s title to the land in dispute;”

In respect of the above pleadings, the trial court held that the defendant counter-claimant properly relied on the plea of Estoppel per rem judicatam and issue estoppel. The trial court held at page 74 of the records:

“Where, therefore a cause of action in a present suit has been determined in a previous suit between the same parties and on the same issue, the parties are estopped per judicatam from bringing a fresh action before any court on the same cause and on the same issue already pronounced upon by the court in the previous action. See Oyelakin Balogun v. Adedosu Adejoki (1995) 2 NWLR (pt. 376) 131.”

He went further at page 75 of the records:

“In my opinion both estoppel have been raised by the defendant in this case. And having come to the conclusion that the defendant’s plea of estoppel succeeds, the plaintiffs’ action for declaration cannot succeed against the defendant who by pleadings and evidence is in possession of the land in dispute”,

From the pleadings in paragraphs 3 (g) and (h) reproduced above, the defendant/cross respondent clearly pleaded estoppel as a defence to the present action, contrary to the argument of the learned cross appellant’s counsel that estoppel per rem judicatam or issue estoppel was not pleaded.

I am in agreement with the learned trial judge’s holding that the appellant/defendant/cross respondent properly and successfully pleaded estoppel, to avoid re-litigating over the same cause and issue already pronounced upon by the court in the previous action. See Oyelakin Balogun v. Adedosu Adejoki (supra).

It is trite that for estoppel per rem judicatam to be validly sustained, there are conditions upon which the doctrine thrives, they are:

(a) The parties were the same in the two suits in dispute;

(b) The subject matter in dispute was the same in both suits;

(c) The judgment upon which estoppel is pleaded is a judicial decision of a competent court or tribunal;

(d) The judgment was, final in that it determined with finality the parties’ legal rights therein; and

(e) That in arriving at such a decision the cause of action was determined on the merit.

See P.R. Olatunde &. Co Nig. ltd v. N.N.B. Ltd (1995) 3 NWLR (pt 385) 550; Ofem v. Ejikwa (1994) 2 NWLR (pt326) 303; Usman v. Kusfa (1997) 1 NWLR (pt 483) 525; Nwaneri v. Oriuwa (1956) SCNLR 316; Alao v. Chidebe (1990) 1 NWLR (PT 125) 141; NIDB & Anor v. Limani (Nig) Enterprises (1998) 10 NWLR (pt 568) 97 at 104.

The above conditions or requirements for the plea of estoppel per rem judicatam to succeed are more or less the same as outlined by the learned counsel for the cross appellant.

In the present case, the parties or privies in Exhibits ‘D6’ – ‘D7’ are the same as those in the present suit.

The PW1 (Abisoye Akanbi) who testified on behalf of the cross appellant as plaintiff in the trial court acknowledged that Layiwola, Ogundijo and Omolara are members of Olaogun family, even though he said he did not know of any litigation between the Olaogun family members and Salamotu. It is clear on the face of Exhibits ‘D6’ and ‘D7′ that the parties in the two judgments are the same, the cross appellant a member of Olaogun family instituted this action all over again against the privies of Rabbi Onigba, whose title derived from a purchase from Liasu Onilu to Salamotu whom the defendant/respondent derived their title from, by purchase. The defendant/respondent has shown that he is a privy to Salamotu, vide Exhibit’D2’.

The subject matter of the previous litigation and the present suit are the same. The claim and the issue in the previous suits and the present are the same, the issue of title to the land in dispute.

A look at Exhibits ‘D6’ and ‘D7’ makes it clear that these judgments were from competent courts i.e. they are judicial decisions, which were also final. The matters were heard on merit and each side had the opportunity of stating his case.

I am of the humble opinion that the issues in the previous judgments and the present suit identical questions of title were raised, and between the same parties or their privies. With the former judgments, the cross appellant cannot succeed in pursuing the same claim in the present suit. See Ikeni &. Anor v. Efamo &. Ors (1996) 5 NWLR (pt 446) 64.

Exhibits ‘D6’ – ‘D7’ were tendered in evidence in the trial court. Exhibits before the court form part of the court’s records and the court cannot shut its eyes to the contents. The contents of Exhibits ‘D6’ – ‘D7’ do not need any further proof and did not need to be proved in course of trial, the important thing is the decision which was against the cross appellant, Olaogun family members. See Oduka &. Ors v. Kasumu &. Anor (1967) 5 NSCC 290.

On Issue Estoppel:

For issue estoppel to apply the following ingredients must be present:

1. The parties must be the same in the previous and present actions.
2. The same question that was decided in the previous action must arise in the present action in respect of the same subject matter and
3. That question must be a final decision of a competent court. The issue must have been resolved in the previous suits.

See Ebba &. Ors v. Ogodo &. Ors (2000) 10 NWLR (pt 675) 387.

There is no doubt Exhibits ‘D6’ and ‘D7’ were documents the defendant/respondent collected from his vendor, which were in evidence.

The contents showed that there had been previous suits in respect of the land in dispute and showed the parties and the claim. The case of Alhaji Yakubu Alabi Aro (supra) cited and relied upon by the learned counsel for the cross appellant could be distinguished from the present suit, in that in the above case the judgments allegedly constituting res judicata were not tendered. Contrary to the argument of the learned counsel that the defendant/respondent did not give evidence in support that the parties in Exhibits ‘D6’ and ‘DT or their privies are the same in both previous and present proceedings, I am of the opinion that Exhibits ‘D6’ and ‘D7’ speak for themselves and do not need further explanation.

It is elementary that evidence could be oral or documentary. These judgments in Exhibits ‘D6’ – ‘D7’ did not need any further clarification.

I am of the humble opinion that the learned trial judge was right in holding that the defendant/respondent has sufficiently discharged the burden of proving estoppel per rem judicatam.

I also hold that the present suit satisfied the ingredients required for issue estoppel to apply. The first issue is resolved against the cross appellant.

In respect of issue two, the learned cross appellant’s counsel argued that there is no statement or evidence given by Ogunbode in Exhibit ‘D3’ that can constitute an admission against his interest or that of Olaogun family as represented by the cross appellant in this case. Exhibit ‘D3’ is at pages 99-104 of the record, Ogunbode’s evidence is on pages 101-102.

The learned cross appellant’s counsel argued that no where on record did Ogunbode give evidence in Exhibit ‘D3’ admitting anything against his interest, or that of Olaogun family. For it to qualify as an admission in Ogunbode’s oral testimony in Exhibit ‘D3’, the evidence must be clear and unambiguous and cited the case of Joe Iga &. 3 Ors v. Chief Ezekiel Amakiri &. 3 Ors 6 University Of Ife (Nigeria) Law Reports (U.I.L.R) Page 558.

Further, without conceding that Ogunbode’s testimony is personal and not as representing the Olaogun family, therefore anything he might have said would not be binding on the Olaogun family. Ngwu v. Ozougwu (1999) 11 SCNJ page 1.

He urged this court to hold that the evidence of Ogunbode in Exhibit ‘D3’ could not constitute an admission against interest under any of the provisions of Sections 19 – 26 of the Evidence Act as to affect cross appellant’s case.

Having adjudged the cross appellant estopped in the first issue, resolving this third issue becomes academic. For whatever it is worth Ogunbode in Exhibit ’91D3’91 clearly stated that the court should believe the contents of Exhibit ’91D2’91 in preference to his evidence. Exhibit ’91D2’91 shows the absolute relinquishing of the property for a fee of ?55. Exhibit ’91D2’91 was read to the witnesses who thumb printed Exhibit ’91D2’91, including Ogunbode. Whereas Ogunbode had testified that what he witnessed was a loan agreement. One can rightly conclude that Exhibit ’91D2’91 is a sale agreement and not a loan.

The learned trial judge was therefore right in holding that Ogunbode’s evidence in Exhibit ‘D3’ is on admission against interest under the provisions of section 19-26 of the Evidence Act.

The second issue therefore fails and is hereby struck out.

In sum the cross appeal fails and is hereby dismissed. The judgment of M. A. Owoade, J of 10th day of May, 2004 is hereby affirmed.

Each party to bear its costs.

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Other Citations: (2008)LCN/2642(CA)