Tiamiyu Shitiu & Ors. V. Jimoh Aremu Olaegbe (2009)

LawGlobal-Hub Lead Judgment Report

CLARA BATA OGUNBIYI, J.C.A.

This is an appeal against the judgment of the High Court of Justice, Oyo State delivered on 23rd day of May, 1999. The appellants were the plaintiffs at the lower court and their claims as contained in the writ of summons dated the 2nd day of March 1992 read as follows:

“(i) Declaration that the tract of land known and called ILOGBO compound situate lying and being at ILOGBO Akeetan Oyo Town in the Oyo Local Government Area of Oyo State has been and still in the customary possession and occupation of the plaintiffs’ family and the plaintiffs’ are hereby entitled to a Statutory Right of Occupancy to the said tract of land.

(ii) Sum of Twenty-five Thousand Naira (N25,000.00) being damages suffered by the plaintiffs’ land and erected illegal structures (building foundation thereon).

(iii) Order of perpetual injunction restraining the Defendant by himself, his servant’s agent’s privies and or any person claiming under and/or through them from committing any further acts of trespass on the said plaintiffs’ land.

The annual Rental value of the said land is N500.00.”

The brief facts of this case as related by the appellants were that they were the plaintiffs at the lower court and are members of Ilogbo family. Their ancestor Aro Ilogbo migrated to the present Oyo from Ahoro Akeetan Idiya with other chiefs, during the reign of Alaafin Atiba. The head chief with whom the plaintiffs’ ancestor came to Oyo was Baale Oyeleye. The other chiefs that accompanied him to Oyo were (1) Jagun of Akeetan (2) The Onsa (3) The Aro (4) The Odofin (5) The Sagunna(6) The Ejemo.

That Baale Oyeleye was the first Baale of Akeetan. The Alafin Atiba settled Baale Oyeleye on a vast area of land. That Baale Oyeleye later allocated plots of land to his chiefs including Aro of Ilogbo compound with a view to settling their people. These allocations resulted in the following compounds coming into being viz (i) Oke Onsa Nla compound with Chief Ejemo as its Head (ii) Odofin Compound with Chief Odofin as Head (iii) Igbo Compound with Chief Aro as its Head (iv) Jagun compound with Chief Jagun as the Head (v) The Onsa compound with Chief Onsa as the Head (vi) The Sagunna compound with Chief Sagunnaas the Head and (vii) Oke Ose Kekere compound with Akaparo as the Head. That the plots of land allocated to Chief Aro became known and called Ilogbo compound. That Chief Aro erected a big and strong entrance door leading to I1ogbo compound and the land in dispute which door was used as a cover by Night guards for many years before it was destroyed. Those Ilogbo members exercised acts of ownership on the plots of land including the land in dispute by erecting buildings on the land and that they are clearly shown on survey plan No. A1/MISC/OY/002/92 of 22nd June, 1992 verged ‘RED’.

Further description of the land is that it is verged “Green” on the survey plan No. A1/MISC/OY/002/92 of 22nd June 1992 tendered and marked Exhibit “A”. That the Defendant trespassed on the land but the Plaintiffs resisted. That they were subsequently arrested by the police and arraigned before the Magistrate Court, but were accordingly discharged and acquitted, vide Exhibit B. That the land in dispute is surrounded by the buildings erected by the plaintiffs and other members of Ilogbo family.

On the part of the defendant/Respondent however the facts were that he is a member of Onsa family. That Alaafin Atiba granted a portion of the land on which he settled the Baale Onijamo, one of the followers of Alaafin Atiba. That Baale Onijamo granted a parcel of land to Onsa including the land in dispute. That Onsa Otunla granted a parcel of land to Arekujo, his in-law who hailed from Ilogbo compound.

That grants were made to others, including Sangodiran of Ilogbo compound. That when Sangodiran died without an issue Tafa Ajao inherited it. That when the family members of the plaintiffs/appellants prevented him from doing anything on the land, he instituted action against them in the customary court. The judgment is tendered and marked as Exhibit ‘C’. That Certified True Copy of the judgment on appeal is tendered and marked Exhibit ‘E’. That the land in dispute in Exhibits ‘C’ and ‘E’ is on Onsa Compound. That Busari Aremu is not a party to Exhibit ‘C’.

At page 42 of the judgment the learned trial judge at the end of its evaluation held thus and said:

“Having gone through the pleadings and evidence of the parties in the present suit HOY/16/92 and having come to the conclusion that this present case is being used as a process to harass, irritate or annoy the defendant and to interfere with the administration of justice, I hereby order that the plaintiffs’ claim be dismissed in its entirety as being frivolous, speculative and an abuse of court process and as being res judicata.”

Being dissatisfied with the judgment of the trial court, the appellants filed a notice of appeal dated 24th March, 1999 and filed the same day wherein three grounds of appeal were raised. The appellants’ brief of argument was dated and filed 5th September, 2001. By an order of court made 25th February ’08 pursuant to an application on notice dated 19th and filed 29th March, 2007, the appeal was fixed for hearing on the appellants’ brief alone and in the absence of any brief filed by the respondent. The appeal was accordingly heard on the 4th May, 2009 wherein the learned counsel Chief A. O. Bada representing the appellants adopted and relied on their foregoing brief and urged that the appeal be allowed.

From the three grounds of appeal, the appellants formulated three issues for determination as follows:

“(a) Whether the learned trial judge was right in holding that Exhibit ‘C’ constitutes estoppel per rem judicatam.

(b) Whether the learned trial judge was correct in holding that on the totality of the evidence before him, the plaintiffs/appellants have failed to prove their case.

(c) Whether the learned trial judge was right in not applying section 46 Evidence Act in view of the evidence adduced by the witnesses.”

Submitting on the 1st issue raised, the learned counsel related the conditions which must be fulfilled before estoppel per rem judicatam can be sustained. That having regard to the Customary Court judgment, Exhibit ‘C’, and the present matter at the lower court as suit No. HOY/16/92, the evidence adduced by the witnesses did not confirm that the parties are same. In other words, that the similarity cannot be that, “they are all from Ilogbo House, Akeetan, Oyo.”

Counsel further submitted that the parties in suit No. 211/86 (Exhibit C) are different from the parties in the suit HOY/16/92 (the instant case). That there is no evidence in Exhibit ‘C’ to show that the parties/the defendants therein were sued in a representative capacity and that they defended the case in that capacity. That they were all sued in their personal capacities. That while the land in suit No. 211/86 sought declaration under Native Law and Custom of Oyo town to a Statutory Right of Occupancy over a parcel of land situate lying and being at Onsa compound, Akeetan Oyo, the land in dispute is within exclusive jurisdiction of the High Court. Learned counsel, to buttress his submission, cited a number of authorities and emphasized the error by the learned trial judge in failing to advert his mind to the issue of jurisdiction. The counsel urged that the issue should therefore be resolved in favour of the appellant.

The 1st issue for determination in the matter at hand is whether or not the doctrine of res judicata applied to the suit No. HOY/16/92. It is pertinent to recapitulate that the defendant/respondent at the trial court in his defence strongly emphasized that everything necessary to prove this case had been decided upon and that the plaintiffs/appellants have been caught up by the principles of res judicata and former recovery or Auter Fois Convict.

The said defence was therefore raised vide paragraph 19 of his statement of defence at page 17 of the record of appeal wherein he said:

“19. The Defendant shall at the trial raise as a matter of preliminary point of law the plea of RES JUDICATA that the plaintiffs are estopped from relitigating the ownership of the land in dispute which has been adjudicated upon in the Defendant’s favour at the Oyo Grade ‘C.”

The plea of res judicata applies only where there is lis inter partes to preclude a party from raising again facts directly in issue which were the basis for the judgment in an earlier final proceeding by a competent court between the same parties or their privies. See Cardoso v. Daniel & ors (1986) 2 NWLR (Pt. 22) 270.

The general state of the law is that he who asserts must prove the truth of his assertion. A party who alleges the existence of a particular thing or particular situation must prove the existence of such thing or situation. The onus in this case therefore lies on the defendant/respondent who specifically pleaded res judicata. The plea is based on the findings of facts by the court and not on the principles of law. See the case of Ofunne v. Okoye (1966) 4 NSCC 87. The basis for the plea is that there should be an end to litigation. The latin maxim Interest rei publicae ut sit finis litum ensures that rights of litigants are set to rest. See the case of Bonny v. Yougha (1969) 1 All NLR 396.

It is also pertinent and of necessity that the sustenance of the res judicata claim requires further that the decision relied upon to establish the plea of estoppel must be valid, subsisting and final. In further addition, the court which gave the previous decision relied upon to sustain the plea must be a court of competent jurisdiction.

For the doctrine of estoppel to operate therefore the following conditions must be fulfilled:

(1) Parties and privies must be the same.

(2) Issues and subject matter must be the same; and

(3) There must be a subsisting and valid judgment given by a court of competent jurisdiction.

The authority in the case of Salami Adesina v. Commissioner Ifon Ilobu Boundary Commission (1996) 4 SCNJ page 112 at 119 is relevant. The grounding evidence of reliance was Exhibit ‘C’ being the customary court judgment which has to be considered in the light of the suit, HOY/16/92.

It is trite law that when a dispute had been decided by a court of competent jurisdiction, such judgment would operate as estoppel per rem judicatam thereby preventing the parties involved from relitigating on the same issue. In the absence of anyone of the pre-requisite conditions listed supra, the principle of res judicata would not apply.

It is trite law further that a party who relies on the plea of estoppel and all its species must so plead it and specifically too for that matter. This was the decision arrived at in the case of Owoniyi v. Omotosho (1961) 1 All NLR p. 304.

In order to resolve the identity of the parties and their privies on the two cases in suits 211/86 (Exhibit C) and HOY/16/92, recourse has to be had to the evidence of the parties before the court. It is apparent

that having regard to Exhibit C, the parties were: Alhaji Jimoh Aremu Ilo Onsa Akeetan Oyo as the plaintiff vs. (1) Oiadejo Olaifa (2) Aihaji Amuda Aremu, (3) Alhaji Gbadamosi Ogunkunle, all of Ilogbo House, Akeetan Quarters, Oyo, In respect of the suit No. HOY/16/92 and specifically at page 6 of the record, the parties on the statement of claim were (1) Tiamiyu Shittu, (2) Rasheed Ajani, (3) Busari Aremu (For themselves and on behalf of Ilogbo family of Oyo as the plaintiffs, while Jimoh Aremu Olaegbe was the defendant.

With reference to the evidence of the witnesses however, Aihaji Jimoh Aremu, who was the plaintiff in suit 211/86 (Exhibit C) was the defendant in suit HOY/16/92. In his evidence at page 5 of Exhibit C from lines 13-17 the witness said:

“I am a farmer and I live at Onsa Compound, Akeetan, Oyo. The land in dispute is my own because the land belongs to my father Chief Karimu Alagbe the Onsa Akeetan of Oyo. In my father’s house whosoever is the present Onsa has the final say on land matters connecting Onsa family.”

Also at page 8 of the same document Exhibit C, Alhaji Gbadamosi Ogunkunle, the 3rd defendant testified and said:

“I am a trader, I trade in Block-stones. I live at Ilogbo compound, Akeetan, Oyo. I am to state this case on behalf of the 1st and 2nd defendants. The land in dispute belongs to the three of us the defendants and our family.”

Furthermore and in suit HOY/16/92 the plaintiffs as specified supra were suing “for themselves and on behalf of Ilogbo family of Oyo”. The plan exhibit ‘A’ showing the land in dispute between the said parties and situate at Ilogbo compound Akeetan Oyo, Oyo Local Government Area is evident.

At pages 22 & 23 of the record of the lower court both in chief and under cross-examination Busari Aremu, the 3’d plaintiff testified as PW4 wherein he said:

“I belong to Ilogbo family the plan contains the land that belongs to Ilogbo family children, that the land in centre of the plan is the land in dispute.”

It is apparent that the defendant Jimoh Aremu Olaegbe in suit HOY/16/92 is the same person as the plaintiff in suit 211/86. This is confirmed by the evidence in his testimony at page 24 of the record of appeal wherein he said:

“…the land in dispute is located at Onsa’s land. The land belongs to us through our forefathers from Baale Onjamo ……………………… This is not the first time we are coming to this court on this disputed land.

In the customary court suit 211/86 I instituted proceedings on this land against Olaoja, Olaifa, Amuda Aremu, Gbadamosi, Ogunkunle, Busari Aremu, one of the defendants in that suit HOY/16/92 suit the 3rd plaintiff in this suit HOY/16/92. I sued them in suit 211/86 as the representative of ILOGBO family;”

Under cross-examination the witness at page 25 further said:

“I sued the defendants who are of Ilogbo family i.e. (sue Ilogbo family). I sue the family of Ilogbo not in their personal capacity, the land I litigated upon is at Onsa compound, Busari Aremu is not a party to Exhibit c.”

The proceedings in suit 211/86 which was conducted in the customary court was identified by the witness and admitted in evidence as Exhibit C. Judgment was given in favour of the defendant/respondent and there was no appeal against the said judgment of the customary court.

Deducing from the foregoing conclusions and as rightly arrived at by the trial court, the reasonable and just inference that can be drawn from the available pieces of evidence is that the privies of the parties in suit 211/86 are the same as those in suit HOY/16/92.

For the determination of whether or not the subject matter of the claims in the two cases are the same, recourse must be had to the writ of summons/statement of claim of the plaintiffs and the reply to the Statement of Defence. The plaintiffs’ claim in suit 16/92 is spelt out vide paragraph 26 on their statement of claim at page 8 of the record of appeal wherein their claim was for “themselves and on behalf of the Ilogbo family as per their writ of summons”. The writ of summons is at pages 1-2 of the said record of appeal and specifically at page 2 the plaintiffs’ claims against the Defendant are for:

“(i) Declaration that the tract of land known and called ILOGBO compound situate lying and being at Ilogbo Akeetan, Oyo Town in the Oyo Local Government Area of Oyo State has been and is still in the customary possession and occupation of the plaintiffs’ family and the plaintiffs are hereby entitled to a Statutory Right of Occupancy to the said tract of land.

(ii) A sum of Twenty-five thousand Naira (N25,000.00) being damages suffered by the plaintiffs when sometimes in 1986 the Defendant in trespass wrongfully entered the plaintiffs’ land and erected an Illegal structure (building foundation) thereon.

(iii) An order of perpetual injunction restraining the Defendant by himself, his servants, agents, privies and/or any other persons claiming under and/or through them from committing any further acts of trespass on the said plaintiffs’ land.

The Annual Rental value of the said land is N500.00.”

The reproduction of the plaintiffs’ claim in respect of case No. 211/86 is at page 1 of the document Exhibit C and reads as follows:

“CLAIM:

I. The plaintiffs’ claim against the defendants is for Declaration of title to a customary right of occupancy over the land bounded on the 1st side by Abiola House, 2nd side by Tafa’s House, 3rd side by Lasisi House and on the 4th side by Akeentan Street;

II. Special and general damages for alleged acts of trespass on the land;

III. Injunction restraining the defendants, their servants, agents and anyone claiming through or under his/her from further trespass on the land.

The rental value is N100.00”

For the determination of the res or subject matter of the two cases, which are the subject of comparison, due consideration must be had not only to the claims on the pleadings but also to the assessment of survey plans sought to be relied upon. In general terms, although the plans of the parties are expected to be interposed, an exercise of great caution must be applied to ensure the just interpretation thereof.

Reference in support is the pronouncement made by Niki Tobi JCA in the case of Udo v. Okupa (1991) 5 NWLR (Pt. 191) 365 at 373 wherein the learned jurist had this to say:

“While I agree with the submission of counsel for the plaintiffs/respondents that for the purposes of founding the plea of res judicata, the plans of the parties must be interposed, a trial judge should take utmost precaution in assessing the plans for any possible organized ‘game’. A plaintiff may, in an attempt to overreach the defendant, and therefore make nonsense of a possible plea of res judicata, undertake the survey of the land in such a way that it does not cover exactly the same area and the same dimension. In such a situation the doctrines of equity will catch upon the plaintiff by taking into consideration the totality of the plans and see whether in substance and in form they speak the same language. Once the court comes to that conclusion, it must then hold that the plea avails the defendant. After all, a plaintiff is not entitled to overreach the defendant by adopting a clever device of instalmenting his own case by apportioning the area of the land in dispute to drown a plea of res judicata. But the court needs the assistance of the defendant to arrive at that decision, since the burden of proof is on him.”

I am very mindful of the facts that while the claim in case No. 211/86 gave descriptive identity of the disputed land with all the four bounded sides surrounding the area, the claim in suit HOY/16/92 in addition to the description of the area in question submitted a detailed survey plan of the contested subject matter marked Exhibit ‘A’. On the authority of the case of Udo v. Okupa supra, the variation in the description of the subject matter by the plaintiffs in the subsequent suit HOY/16/92 did not therefore, in any tangible way, change the subject matter. This I hold, especially having regard to the evidence given by both parties at the visit in locus in quo.

In other words, at page 29 of the record of appeal the reproduction of the evidence at the locus would be relevant and more explicit. On the one hand therefore, Busari Aremu the 3″‘ plaintiff in his evidence said:

“We are now at Ilogbo, the Idiope – Akeetan Road is in Exhibit A, the plan, the house on the left belong to Ilogbo, the house behind the land in dispute belongs to Ilogbo. All houses on the right belong to Ilogbo, the land in dispute is in Ilogbo compound.”

Under cross-examination, the witness said:

“I was arrested over the disputed land.”

The defendant in his testimony-in-chief on the other hand also had the following to say:

“This is the plot of land on which I sued in the customary court, this is the same piece of land I was sued at the Magistrate Court, thus is the piece of land on which I arrested some people.

This is the land on which I filed an appeal.”

From all deductions, I hold that it is obvious and not in question that the subject matter of the claim in the two cases is one and the same area of land as rightly found by the trial lower court.

The appellants’ learned counsel in his brief of argument submitted the absence of jurisdiction on the customary court to have litigated upon the subject matter which counsel argued was outside its jurisdiction. He dwelt at great extent on the error by the court in adjudicating upon a land located within an area designated “urban area” by the Governor.

Section 39 of the Land Use Act was cited in support.

As rightly submitted and argued by the learned appellants’ counsel, by the provision of section 39 of the Land Use Act, the only competent court to adjudicate on land designated as urban area is the State High Court, which has an exclusive jurisdiction. The customary court rightly therefore lacks the jurisdiction to adjudicate on such matters. The cases of Madukolu v. Nkemdilim (1962) 1 All NLR 587 and Oyeniran v. Egbetola (1997) 50 LRCN 1376 are relevant in point.

It is also trite law and very elementary that a proceeding no matter how well conducted by any court lacking in jurisdiction renders the entire same a nullity. The case of I.B.W.A. v. Panex International (2000) 4 SCNJ at 243 is also in support.

The appellant on this contention has raised an absence of jurisdiction on the part of the Customary Court. I am very much also mindful that a question of jurisdiction can be raised at any time.

However and that notwithstanding, the issue of jurisdiction sought to be raised in this case borders on question of fact and not jurisdiction simplicita. In other words, the onus lay on the appellants to have pleaded as a pre-requisite the facts that the subject matter is located in an urban area, and proceeded to adduce evidence in proof thereof. The area of location of the subject matter is a question of fact to be pleaded and proved by evidence.

It is trite law and also very elementary that parties are bound by their pleadings and an issue not pleaded goes to no effect. See the cases of Oba v. Ajoke (1962) 1 SCNLR 137; Emegokwe v. Okadigbo (1973) 4 SC 113; Aderemi v. Adedire (1966) NMLR 398; Ajidagba v. Odeneye (1962) 2 SCNLR 11.

The plaintiffs/appellants’ seven paragraphs reply to the defendant/respondent’s statement of defence is contained at page 19 of the record of appeal. I have examined in detail the entire paragraphs and there is no averment contained therein relating to the fact that the subject matter is located in an urban area. This is despite the issue of res judicata which was clearly raised by the respondent at his paragraph 19 of the statement of defence reproduced earlier in this judgment. The Evidence Act is very clear on the burden of proof. He who asserts must prove. The appellant having failed to plead and adduced evidence to prove the location of the subject matter, cannot do so at this stage and hide under the guise of jurisdiction. The law is evenhanded and works fairness. It is not an element of vanadium.

The provision of Part III of the Customary Courts Law 1980 as Amended by Edicts of 1984 and 1985, has clothed Grade C Customary Court with jurisdiction in land matters. Section 16 paragraph (a) limits the jurisdiction to where the value does not exceed N200.00. Needless to state that the judgment in suit 211/86(sic) is in respect of land under the customary law.

It is significant also to state that the record before the court did not reveal anywhere that an appeal was lodged against the judgment in suit 211/86(sic). Same is therefore still subsisting and binding being a decision of a competent court.

On the totality of the determination of the said issue relating to the question of res judicata, same I hold applies and is established as rightly arrived at by the learned trial judge. The said issue is, in the circumstance, resolved against the appellants.

Issues 2 and 3 derive their bearing and continued existence from issue 1. With the outcome of the 1st issue being res judicata, the implication is that a binding previous decision is subsisting and which same cannot either be a subject of further relitigation or question. A plaintiff in other words cannot by formulating a fresh claim, relitigate the same subject matter. See again the case of Madukolu v. Nkemdilim (supra). To further expatiate, it means that where judgment has been obtained in respect of an area of land in dispute in a previous action between the parties, that portion of land cannot be re-Iitigated. See also Agana and others v. Ezeoke and others (1962) 1 SCNLR 50.

As a consequence Issues 2 and 3 have no foundation on the account of the absence of issue 1. Dwelling into same would therefore amount to a mere academic exercise which I do not see it useful to do so. The two issues in the same vein as issue I are also resolved against the appellants.

On the totality of the appeal at hand, same I hold is lacking in merit and accordingly dismissed. The appellants are condemned to costs of N50,000.00 in favour of the respondent.

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Other Citations: (2009)LCN/3319(CA)