Albert Adeoye Vs Madam Ibidun Abibatu Jinadu (1975)

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The present appeal is from a ruling of Adefarasin, C.J. (High Court, Lagos) in respect of an application in the proceedings concerned. The plaintiff, now respondent before us, had instituted an action against the defendant, now appellant

“For a declaration that the alleged sale of the house and landed property forming part of No. 22 Moloney Bridge Street, Lagos, entered into between the plaintiff of the one part and the defendant of the other part is void ab initio on the grounds of (a) fraud; (b) illegality; (c) lack of consensus ad idem; (d) undue influence.”

There are some claims in the alternative but we do not consider them relevant to this decision. An order for pleadings was duly made and the plaintiff filed her statement of claim. The defendant did not file any statement of defence as ordered but instead moved the court by way of motion

“For an order dismissing the plaintiff’s claim herein on the grounds that

(i) It is frivolous, vexatious and an abuse of the process of the court;

(ii) The matter or matters in issue between the parties is or are res judicata;

(iii) No cause of action for rectification of the Registrar had accrued on the date of the commencement of the action;

(iv) Such further or other Orders as this Honourable Court may deem fit to make.

And further take notice that at the hearing of this application the defendant’s counsel will refer to the claim on the writ and the statement of claim filed in support thereof.”

There was an affidavit in support of this motion and the judgment of the Registrar of Titles referred to in the supporting affidavit was also attached. The learned Chief Justice heard arguments from counsel on both sides in support of the application to dismiss the plaintiff’s case in limine. It was common ground between the parties that there had been previous proceedings between the same parties in respect of the same property before the Registrar of Titles when the defendant, as applicant, applied to be registered as the proprietor of the freehold title to the said property and the plaintiff, as objector, objected to the registration of the defendant on the grounds that

“She did not sell her property, i.e. the same property to him; that she did not execute the conveyance of the property to the defendant; and that she only borrowed an amount of 100pounds (now N200) from the defendant as a friendly loan but has not repaid any part of it.”

The learned Registrar of Titles overruled the objection before him and declared the defendant the owner of the property by registering him as the proprietor of the freehold title.

It is not disputed before us that if the other ingredients of res judicata were present, the judgment of the learned Registrar of Titles in this matter (on the authority of the decision of this Court in Adebona v. Amao [1965] 1 All N.L.R. 370) would constitute estoppel by res judicata against either of the parties. The learned Chief Justice, in a ruling on the application, observed as follows:

“I do not consider the judgment subject matter of Exhibit A to have conclusively decided the issue of fraud and forgery which are raised in the present case. In fact the learned Deputy Registrar of Titles made it clear that he was not deciding these issues and there were no pleadings before his court whereby those issues were raised. In this respect I would distinguish the instant case from the Adebona case in which it was held that the plaintiff had an opportunity in the earlier proceedings before the Registrar of litigating the issue which he subsequently attempted to raise. I think it is only right to give the plaintiff an opportunity of being heard rather than to decide the issues on the plea of res judicata raised, as it is, by the affidavit of the defendant. If I am wrong in the views which I have already expressed. I would prefer, in any case, to deal with the plea of res judicata which the defendant has raised and the other issues which are dependent on it, at the trial of the substantive case when the defendant shall have filed his pleading. I would therefore order that the defendant herein do file a statement of defence within 30 days of this date. I have also decided that costs in respect of the application be in the cause.”

The defendant has appealed to this Court from that decision and the complaint before us was that the learned Chief Justice should have upheld the plea of res judicata and dismissed the plaintiff’s case. We observe in passing that the learned trial judge did not say anywhere in the course of his ruling that the plea of res judicata was not established. He took the view, which undoubtedly he is entitled to take by virtue of the provisions of Order 28 of the old Supreme Court Rules (then applicable in the High Court of Lagos), either to dismiss the plaintiff’s case or to order that the defendant should file his pleadings. The position however is clear and the appeal is against the refusal to make an order of dismissal of the plaintiff’s case.

Learned counsel for the defendant submitted that the facts verified by affidavit established the plea of res judicata. Although learned counsel for the plaintiff resisted these submissions, we are not in any doubt whatsoever that on the materials before the learned Chief Justice, the plea of res iudicata was clearly established. Before us on appeal, learned counsel for the plaintiff conceded that as between the parties in the present proceedings, there was an identity of the parties In this case with the parties in the Registrar’s Court as well as an identity of the subject-matter in both places, it being manifest that it was the same property. No. 22, Moloney Bridge Street, Lagos, which is being litigated. Learned counsel for the plaintiff however contended that there was identity of the cause of action, a third prerequisite for establishing estoppel per rem judicata. The main plinth on which learned counsel for the plaintiff had rested his argument, was that the present action involves fraud, illegality, undue influence, etc., which were not raised in the Registrar’s Court. We cannot agree less with learned counsel on this issue and if the ruling of the learned Chief Justice implied that those issues take the case out of the realms of res judicata we would not contribute to that view. In R. v. Hartington Middle Quarter Inhabitants (1855) 4 E. & B. 780, at pp. 794-795, Coleridge, J., as he then was, discussing a similar issue, expressed the principle of res judicata thus:

“The judgment concludes not merely as to the point actually decided but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself though not then directly the point at issue.”

See also in this connection Hoystead v. The Taxation Commissioner [1926] A.C. 155; also the High Court of Australia in Blair v. Kurran (1939) 62 C.L.R. 464. On this point we observe that nowhere in the statement of claim filed by the plaintiff were these matters of fraud, illegality, undue influence, etc., legally pleaded as they should have been and no particulars of them given as provided by the most elementary rules of pleadings. Indeed, before us learned counsel for the plaintiff conceded that while some of the issues are only imperfectly pleaded others were not even adumbrated at all. We are therefore left with the simple case of a plaintiff challenging a sale or purported sale of her property to the defendant, an issue which by whatever standards it was examined, is obviously the same as the issue which the learned Registrar of Titles had tried and decided against the plaintiff.

We conclude that the appeal must succeed and hold the view that the contention of learned counsel for the defendant is fully justified. We allow the appeal and set aside the judgment or ruling of Adefarasin, C.J. (High Court, Lagos) in Suit No. LD/36/72 and direct and order as follows:

(i) The matters in respect of which the plaintiff in these proceedings has sued have already been litigated and decided by the Registrar’s Court and the issue is now res judicata;

(ii) The plaintiff’s case must be and it is hereby dismissed with costs;

(iii) This shall be the judgment of the Court.

We also order that the plaintiff shall pay to the defendant the costs of these proceedings fixed in this Court at N112 and in the High Court at N25.

Other Citation: (1975) LCN/2032(SC)