Alhaji Latifu Ajuwon & Ors V. Madam Alimotu Adeot (1990)

LawGlobal-Hub Lead Judgment Report

WALI, J.S.C. 

For clarity and easy understanding of this case, I shall refer to the respondent and the appellants as plaintiff and defendants respectively as done by the Court of Appeal.

The plaintiff, as per her amended writ of summons, sued the defendants in the High Court of Justice, Oyo State of Nigeria, Ibadan Judicial Division, claiming as follows:-

“1. The plaintiff’s claim against the defendants jointly and severally for possession of the shops and building erected by the defendants on the plaintiff’s family land, situated and being at Aremo Ibadan, without the knowledge and consent of the plaintiff’s family and in breach of the judgment in suit No.CV A.23/64 which awarded the plaintiff’s family declaration of title and injunction against the defendant’s family to all the parcel of land covered by plan OG.27A/62. The plan of the land showing recent building will be filed later. Annual rental value of the land is N20.”

The pleadings originally filed by both parties in which issues were joined were also amended. The plaintiff’s case against the defendants, briefly stated is as contained in the following paragraphs of her Statement of Claim:-

“9. The plaintiff’s maternal grandfather, one Aganku derived title to the land by virtue of a grant by Ojo Oronna over 100 years ago.

10. Aganku built houses on the land in his lifetime before he died during the reign of Bale Oshuntoki 1895-1897.
11. After the death of Aganku, the descendants of Aganku continued to farm on the land without any disturbance from anybody.
12. The land being claimed by the plaintiff is shown on plan No.OG.544/80 drawn by Akin Ogunbiyi licensed surveyor dated 20th of August, 1980 and verged RED and the new buildings erected by the defendants after judgment in suit Nos.U42J63 and CVA/23/64 are verged Green.
13. The 1st – 4th defendants in suit no.CVA/23/64 were restricted to the houses owned by them as at the time of judgment on 7th November, 1966 and plan No.OG/27A/62 in the following terms:

(i) The plaintiff and his Aganku family are hereby declared the owner of the land verged RED on plan No.OG/27A/62 dated 29/1/62.

(ii) The defendants and members of their respective households may continue in occupation of their respective houses and other building now on the land verged RED on plan No.OG.27A/62 but may not erect any other buildings on the said land without the permission of the plaintiff.

14. The plaintiff appealed against the above judgment which refused the injunction but the appeal was dismissed thereby confirming the judgment as set out in paragraph 13 above.
15. The defendants have since the judgment in appeal No.CVA/23/64 trespassed and built the houses verged green without the knowledge and consent of the plaintiff’s family.”

The defendant’s case is as also stated in the following paragraphs of their amended Statement of Defence:-

“13. Agbongun was a warrior and he came from Oyo-Ile and first settled at Oja-Iba, Ibadan with Bashorun Oluyole.

14. After a short stay at Oja-Iba, Bashorun Oluyole granted Agbongun land at Oranyan, Ibadan where he again settled down with his family.
15. After a long spell at Oranyan and because of the frequent death of the children of Agbongun, Agbongun finally moved his remaining members of family to Aremo, Ibadan, on the land he had earlier acquired and on which he was carrying on farming activities.
16. Agbongun built another house at Aremo, Ibadan which was inhabited by members of his family and he named the said house “Oke bo Olorun pelu.”
17. Agbongun settled at Aremo before Aperin did settle there.
18. After Agbongun had settled his entire family at Aremo, Ibadan comfortably, he went back to Oyo-Ile from where he brought his junior brother, Aganku to stay with him at Aremo.
19. Agbongun acted faithfully to Aganku in loco parentis; funding a marriage for him (Aganku).
20. Agbongun later granted parcels of land to many people including his father-in-law, called Adigun, Bolarinwa, who was the ancestor of the 3rd defendant; Adejinmi, Ajayi Odegbenle, the ancestor of the 5th defendant; Oshingbaosu and Fabikan the ancestor of the 4th defendant, all the grantees built up the different parcel of land so granted to them by Agbongun.
21. The defendants will contend at the trial of this case that Ojo Oronna had no land near the land of Agbongun at Aremo, Ibadan.
22. With reference to paragraph 11 of the Statement of Claim, the defendants aver that Aganku built up only that parcel of land so granted to him by Agbongun which is quite distinct from the other grants made by Agbongun or the remaining parcel of land of Agbongun at Aremo, Ibadan.
23. With regard to paragraph 12 of the Statement of Claim, the defendants aver that all the buildings of the defendants’ different families occupying the different holdings so granted to them by Agbongun had been built and occupied by the defendant’s families long before suits no.1/4/63 and CVA/23/64.
24. The defendants will contend at the trial that no new buildings were set up by them after 1973.”

Both parties called witnesses. Survey plans of the disputed land in a previous case and the present case were tendered through P.W.3, a licensed surveyor and admitted in evidence as exhibits C and D respectively. Also tendered and admitted in evidence through witnesses called by the plaintiff were Certified True Copies of judgments between the plaintiff’s family and the defendants and these were marked as exhibits A, A1,B,E and F. At the conclusion of the case for both the plaintiff and the defendants, and on the application of Mr. Aderemi, learned counsel for the defendants, the learned trial Judge went and inspected the land in dispute. As shown by the record the learned trial Judge was accompanied by the parties and their counsel to wit Messrs. Adebola and Aderemi for the plaintiff and the defendants respectively. At the locus, the learned trial judge made some notes and when the court reconvened in the court hall, he read out his notes to the parties and their counsel. P.W.3 and 2nd defendant were recalled for further re-examination and cross-examination. Learned counsel then addressed the court and judgment was reserved to 17th January, 1983. On that date, the learned trial Judge in a well considered judgment, dismissed the plaintiff’s case against the 2nd and 4th defendants and found against the 1st, 3rd and 5th defendants as follows –

“On the totality of the evidence, I find as a fact that the shops in front of the 3rd defendant’s buildings said to be built by the 3rd defendant; and the houses shown verged green stretching from the Aperin/Aremo road to the 3rd defendant’s buildings and built by the 1st and 5th defendants (the house immediately abutting the road aforementioned being the 5th defendant’s) were all built after the 1963 case.

I hold on the evidence before me that all the defendants are bound by the judgment in the 1963 case. The 1st defendant is a member of the family represented by Salami Agbongun in the 1963 case. The 1st defendant’s evidence before me and a careful study of the judgment relating to that case both at first instance and on appeal show that the case was defended by Salami Agbongun not in his own right but in a representative capacity.

The 3rd defendant is a party to the 1963 case. The 5th defendant has not proved to my satisfaction that he derived title to the area he built on before 1963 action. In the result the limited injunction contained in exhibit A in terms earlier set out is binding on the 1st and 3rd defendants. The 5th defendant is bound by the judgment declaring the plaintiff’s family to be the owner of the land. He has not proved that he derived title from that family.

In view of the fact that the plaintiff herself appeared before me and indeed testified and of the fact that the action was in her name, I do not find the technicality as to the contents of the power of attorney material. If the power of attorney is ineffective as contended, the fact remains that the plaintiff Alimotu Adeoti instituted the action herself and appeared to prosecute it. The action is properly constituted in my judgment.

On the whole, and on the totality of the evidence, I find the case proved against the 1st, 3rd and 5th defendants and not proved against the 2nd and 4th defendants. No question of equitable defence arises in this case in favour of the 1st, and 3rd defendants who have put up buildings in clear breach of the injunction contained in exhibit A. As for the 5th defendant there is no evidence on which the pleas of laches and acquiescence can be based in his favour his defence which failed being that the house was put up by his grandfather. I therefore entered judgment for the plaintiff against the 1st, 3rd and 5th defendants and order that within 3 months of this judgment, they do yield up possession of their respective buildings shown verged green on plan No.OG.544/80 (exh. D) to the plaintiff.”

The 1st, 3rd and 5th defendants appealed to the Court of Appeal against the judgment while the plaintiff’s cross appealed against the dismissal of her case in respect of the 2nd and 4th defendants.

The Court of Appeal, after considering the briefs filed by the appellants/respondents and the respondent/cross appellant and the oral submissions by their learned counsel in elaboration of their briefs, Uche Omo, J.C.A. delivering the unanimous judgment of that court in which he painstakingly considered all the issues raised and argued, dismissed both the main appeal and the cross appeal and made the following order on costs:”

The respondents in each case are entitled to costs which I assess as follows:-

(1) In favour of the plaintiff against the 1st, 3rd and 5th defendants, the sum of N200.00.

(2) In favour of the 2nd and 4th defendants against the plaintiff, the sum of N150.00.”

The defendants have now further appealed to this court. Both parties filed briefs and made oral submissions in elucidation to some points therein.

In the Court of Appeal, leave to file and argue five grounds of appeal which were described by the appellants as of mixed law and facts was sought. Ground 1 of the five grounds was considered by the Court of Appeal to be a ground of law and therefore no leave was required while leave to argue grounds 2 to 5 was refused. The defendants then filed an application before this court with the usual prayers for leave to file and argue 7 additional grounds of appeal. Counsel asked also as regards ground 8 of the additional grounds for leave to raise new points not raised in the lower courts. Leave to argue additional grounds 2 to 7 was granted while leave to argue the 8th ground was refused. So altogether, 7 grounds were filed and argued on the defendant’s behalf.

Briefs, original and complementary, were filed for and on behalf of the defendants, and same were filed for and on behalf of the plaintiff. These were orally elaborated upon by both parties.

In the original brief filed by the defendants, four issues were formulated for determination while two more were formulated in the supplementary brief. I shall re-number the two issues in the supplementary brief as Nos.5 and 6 respectively. The issues are:-

“I. On a proper construction of the judgment in CVA/23/64 at pages 80-85 of the records by itself and without supplementing it by other evidence “viva voce” at the High Court trial, where the Justices of the Court of Appeal right in their confirmation of the High Court finding and conclusion drawn from that judgment (i.e. in CVA/23/64) that “There cannot be any doubt that his successors in title are bound by the result of that suit. The 5th defendant, Latinwo Idowu, was not a party to the 1963 suit, but he would be bound by the result of that suit if he relies on title derived from Agbongun family after the 1963 suit.”

2. In their review and consideration of the submissions before them of the trial court consideration of the respondent’s case at pages 186-187 of the records, were their Lordships of the Court of Appeal right when at lines 17 to 20 at page 187 of the records they held as follows:-

“…The learned trial Judge was therefore right in my view in holding that the 1st defendant in the present case is bound by the judgments aforementioned” in the absence of any plea of “standing by” by the respondents in their Statement of Claim at pages 43-47 of the records

3. Is the action for possession brought by the respondent not tantamount to enforcement of the judgment in CVA.23/64 alleged breached by the respondents as postulated by the respondents’ writ of summons at page 49 of the records

3(a) If the answer to the foregoing is in the affirmative, is the respondents’ action in the suit not vexatious or does it not amount to an abuse of court process, when by the Sheriffs and Civil Process Law, Cap. 117, Laws of Oyo State, adequate provisions exist for the enforcement of such subsisting judgment

4. The respondents’ claim not being for forfeiture as borne out in their writ of summons at page 49 of the records, were their Lordships of the Court of Appeal right in confirming the trial court’s order for possession made against the appellant when the breach of the judgment alleged in CVA/23/64 is relevant only on a claim properly formulated by the respondents for forfeiture, or enforcement of such judgments by appropriate legal process.
5. Whether the Learned Justices of the Court of Appeal were correct when they held that the plaintiff Madam Alimotu Adeoti could sue through her attorney on behalf of the Aganku family.
6. Whether the judgments in exhibits A and A1 are binding on Agbongun family.

These were virtually adopted by the plaintiff in both her original and supplementary briefs, save that preliminary objection was raised in respect of issues Nos.3 and 4 on ground that these are issues being raised for the first time before this court, which were not pleaded, and therefore no arguments were presented either in the trial court or in the Court of Appeal for and against them. Counsel contended that the defendants are introducing these issues now as delaying tactics.

These issues are covered by ground 6 of the defendants ground of appeal.

The ground reads:-

“The Learned Justices of the Court of Appeal erred in law in confirming the decision of the trial court ordering possession of the buildings occupied by the 1st, 3rd and 5th defendants/appellants when the complaint of the plaintiff was for a breach of EXHIBITS A, A1 and C being subsisting judgments of the Customary Courts Grades A and B and the High Court and the plaintiff should have sought the enforcements of these judgments under the provisions of the Sheriffs and Civil Process Law, Cap. 117 Laws of Oyo State rather than instituting a fresh action.”

It is abundantly clear from the ground of appeal (supra) that the defendants are contending that the proper step to be taken by the plaintiffs to have the judgments in exhibit A enforced is by initiating proceedings under the provisions of the Sheriffs and Civil Process Law, Cap. 117 of Laws of Oyo State, but not by filing a fresh suit.

The defendants, neither in the trial court nor in the Court of Appeal made the issues now being raised for the first time before this court, point of contention between the plaintiff and the defendants. I am not unmindful of the fact that ground 6 is one of the additional grounds the defendants were granted leave to file and argue.

See the ruling of Nnamani. J.S.C. [presiding] of 12th December, 1988.

By the provision of order 8 rule 2(5) of the Supreme Court Rules, 1985 which provides that –

“(5) The appellant shall not without the leave of the court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the court may in its discretion allow the appellant to amend the grounds of appeal upon payment of the fees prescribed for making such amendment and upon such terms as the court may deem just” an appellant is enabled to apply and ask leave of court to file and argue a ground of appeal not contained in the original grounds filed. It is a condition precedent that the points to be raised in the additional ground must have been raised in either of the courts below. But where he intends to raise for the first time a point or points not raised in the courts below, the provision of order 6 rule 5(1) of the Supreme Court Rules, 1985 will apply.

Subrule (1) of order 6 rule 5 enacts as follows –

“5.(1) The appellant shall within ten weeks of the receipt of the record of appeal referred to in order 7 file in the court and served on the respondent a written brief, being a succinct statement of his argument in the appeal.

The brief, which may be settled by counsel, shall contain what are, in the appellant’s view, the issues arising in the appeal. If the appellant is abandoning any point taken in the court below, this should be so stated in the brief. Equally, if he intends to apply in the course of the hearing for leave to introduce a new point not taken in the court below, this should be indicated in his brief.”

The provision (supra) clearly stipulates the procedure to follow where an appellant is desirous of raising and introducing a new issue or issues not taken in the court below. In Amusa Opoola Adio & Amos Alolabi v. The State (1986) 2 NWLR (Pt.24) 581 at 587, this court stated on the same point as follows-

“Leave to argue additional grounds is not the same as leave to argue and urge issues not raised in the court below. But the rule that an appellant will not be allowed to raise on appeal a question not canvassed in the court below is not an unflexible and rigid rule. It is subject to the demand of justice. Thus, where the question involves substantial points of law, either substantive or procedural, the court may entertain the appeal all the same and prevent an obvious miscarriage of justice.”

The new issue being raised must be such that it would not require the adduction of any additional evidence so that the other party would not be taken by surprise. In other words, the issue must have been covered by the proceedings before the courts below.

As regards the new issues being introduced by the defendants for the first time in this court, no leave was sought to raise and argue them, nor did the defendants state in their brief that they intend to raise and urge such issues. The fact that leave was granted to the defendants to file ground 6 does not automatically confer on them the authority to urge and argue the new issues. They must seek and obtain leave of the court to do that.

Apart from the fact that the defendants did not obtain leave of this court to raise the new issues, the issues are not, in my view, substantial, either substantive or procedural, that may result in an obvious miscarriage of justice if not taken. In my view, the plaintiff had adopted a proper procedure by initiating a fresh action to claim possession of the land and the improvements thereon, which the defendants have illegally entered and trespassed upon. The objection of the learned counsel for the plaintiff is therefore sustained and the fresh issues being introduced without leave under the cover of ground 6 cannot be entertained; accordingly issues 3 and 3(a) raised thereunder are improperly introduced and are hereby struck out.

Issue No.4 in the defendants’ brief is more or less the same as issues 3 and 3(a), though differently worded. The issue canvassed is identical to those canvassed in 3 and 3(a) (supra). It is an issue being raised for the first time without leave of this court. Therefore, issue No.4, for the same reasons expressed on issues 3 and 3(a), is declared incompetent and accordingly struck out.

Issues Nos.1, 2 and 6 are interrelated because they touch on the effect of exhibit A and A1 to wit, judgments in CVA/23/64 and L.42/63 respectively.

It was the submission of learned counsel for the defendants that exhibits A and A1 are not binding on Agbongun family as he puts it, because there is nothing on the record to show that Salami Agbongun the first defendant in exhibit A1 was sued as representing Agbongun family. It was his contention that where a customary court is presided over by a legal practitioner or where such a legal practitioner has howsoever adjudicated on such claims, the principle postulated in Karimu Ajagunjeun v. Sobo Osho (1977) 5 SC.89 does not apply. In the case (supra), the principle of law enunciated therein stated that where a trial was conducted before a customary tribunal, in order to ascertain what was really the nature and subject matter of the claim and the capacities in which the parties on either side litigated, the entire proceedings before that court must be looked at and considered. Learned counsel further submitted that both the trial court and the Court of Appeal were wrong in admitting the evidence given by the 1st defendant that-

“when Aganku family sued our family [Agbongun family] in 1963 they [i.e. Salami Agbongun] defendant the action on our behalf”, to vary the contents of exhibit A and A1, which are the judgments of the appellate and the trial customary courts respectively, as that was against sections 131 and 226 of the Evidence Act. He cited the following cases in support of his submissions-

Ebueku v. Amola (1988) 2 NWLR (Pt.75) 128; Abiodun & Ors. v. Ogunyomi (1962) 1 ALL NLR 550; Ikpe v. Sokari George [1958] SCNLR 482 at 485; Shitta-Bey & Ors. v. Lagos Executive Development Board (1962) 1 ALL NLR 373; Coker v. Sanyaolu (1976) 9-10 SC.203 and Ayeni v. Sowemimo (1982) 5 SC.60.

In reply to the above submissions, learned counsel for the respondent, submitted that exhibits A and A1 both being judgments of competent courts are binding on the 1st defendant and the Agbongun family since Salami Agbongun (the 1st defendant and 1st respondent in exhibits A and A1 respectively) defended the action in his capacity as the head of the Agbongun family and that the findings of the trial court in suit No.1/265/80 which were affirmed on appeal in CA/1/50/84 that Salami Agbongun was the head of the Agbongun family and that he defended exhibits A and A1 as a representative of that family, cannot be faulted. Learned counsel also submitted that the evidence given by 1st defendant is admissible under sections 26 and 150 of the Evidence Act as it is an admission against interest which has the force of equitable estoppel in pais otherwise known as estoppel by conduct. He relied on the following decisions in support of his submissions Joe Iga & Ors. v. Chief Ezekiel Amakiri & 4 Ors. (1976) 11 SC.1 at pages 12and 13; Rourafric & Far Eastern Ltd. v. John Chief Abenake & 2 Ors. (1958) WRNLR.92, Chief Dugbo & Ors. v. Chief Kporoaro & Ors. (1958) WRNLR.73; (1958) SCNLR 180; John Esan v. Fagbemide Olowa (1974) 3 SC.125 and Augusto v. Joshua (1962) 1 ALL NLR 312.

For a defence of plea of res judicata to succeed –

1. The parties in the previous action and the present action must be the same;
2. The subject matter of litigation in the previous action, must be the same as the one in the present action;
3. The claim in the previous action must be the same as the one in the present action;
4. The judgment in the previous case must be given by a court of competent jurisdiction, and
5. The decision must be final, in other words, it must have finally disposed of the rights of the parties.

See Ihenacho Nwaneri v. Oriuwa & Ors. (1959) 4 FSC 132, (1959) SCNLR 316, William Ude & Ors. v. Josiah Agu & Ors. (1961) 1 All NLR 65; [1961] 1 SCNLR 98 and Wilson Etiti & Ors. v. Peter Ezeobibi of Umuosha Oguta (1976) 12 SC.123. Exhibits A1 and A are judgments of customary courts. It is trite that in order to ascertain in what capacity a party initiates or defends an action in the customary court, the whole proceedings should be looked at and considered with a greater latitude and broad interpretation being placed on the proceedings and the judgment in that court. See Ajayi (substituted for Salihu) The Balogun of Ijanna v. Aina, The Oba of Ibese (1942) 16 NLR.67. It is not an inflexible rule.

In exhibit A1 which is the judgment in L.42/63, Joseph Adeogun was given the power of attorney to sue and claim on behalf of Aganku family the land delineated in a survey plan tendered and admitted in evidence as exhibit C. In that case, Salami Agbongun, Ashiru Adewuyi, Shaditi Bolarinwa and Laore Fabikan appeared as 1st, 2nd, 3rd and 4th defendants respectively. In exhibit A1 judgment was given in favour of the plaintiff against the defendants in the following terms-

“JUDGMENT of this court is for Joseph Adeogun and Aganku family for-

1. Title to ownership and recovery of piece of land verged red in the survey plan No.OG.27A/62 of 20.5.64 (exhibit “E”) drawn by S. Akin. Ogunbiyi, licensed surveyor. The value of the land is 350.
2. Injunction restraining the defendants, their agents, or anybody claiming through them from further trespassing thereon, except the portions already occupied and built upon by the 1st, 2nd, 3rd and 4th defendants, as shown in exhibit “B”.”

The plaintiff was not completely satisfied with the judgment and appealed to the Ibadan City No.1 Grade “A” Customary Court. In the judgment of that court, which is now exhibit A in the present proceedings, the appeal partially succeeded and exhibit A1 was modified as follows-

“(1) The plaintiff and his Aganku family, are hereby declared the owners of the land verged “RED” on plan no.OG.27A/62 (exhibit ‘B’ in the case).

(2) The defendants and members of their respective households may continue in occupation of their respective houses and other buildings now on the land verged RED on plan no.OG.27A/62 of 29/1/62 (exh. ‘B’), but may not erect any other buildings on the said land without the permission of the plaintiff and his family.

Each party to bear its own costs.”

It is pertinent to mention at this stage that the 2nd, 3rd and 4th appellants were the 2nd, 3rd and 4th defendants in exhibit A1 also. Joseph Adeogun lodged further appeal to the High Court of Justice, Western State, Ibadan Judicial division and his appeal was dismissed by Craig, J., (as he then was). The judgment is now exhibit E in the present proceedings.

In another suit to wit, No.1/220/70; Murana Adewuyi v. Ashiru Adewuyi affecting part of the same piece of land [demarcated in plan no.OG.27A/62 (exh. C) and granted to Aganku family in exhibits A1, A and E], the plaintiff sued the defendant for-

“(a) 200 Euro damages for trespass committed by the defendant on the plaintiff’s landed property situate, lying and being at Aperin, Ibadan sometimes in March, 1969.

(b) An Injunction to restrain the defendant his servants and/or agents from any further trespass on the said plaintiff’s landed property. The annual rental value of the land is 5 Euro

The learned trial Judge [Odumosu, J.] in his judgment dated 7th May, 1973 exhibit “F”, among other findings made the following-

“By virtue of these 3 judgments, exhibits A, B and C, the defendant cannot derive title to the land in dispute from Agbongun family as he now claims. Agbongun family has no right to the land in dispute. I hold that before the sale to the plaintiff, the land in dispute was the property of Aganku family and I held that there was a proper sale of the said land to the plaintiff.”

And then concluded:

“Having carefully considered all the evidence before me, I find as a fact that the plaintiff has been in possession of the land since he bought it, and that he was in possession at the time the defendant came to disturb him. This is an act of trespass.

I therefore enter judgment for the plaintiff for:

(1) N100 damages for trespass committed by the defendant on plaintiff’s landed property situated, lying and being at Aperin, Ibadan and more particularly described in the plan, exhibit E.

(2) An injunction restraining the defendant, his servants and/or agents from any further trespass on the said plaintiff’s landed property. N50 costs to the plaintiff.”

It is to be noted that the defendant in exhibit F was the 2nd defendant/respondent in exhibits A1, A and E respectively.

The defendant appealed against exhibit “F” to the Western State Court of Appeal. The Western State Court of Appeal, after considering the appeal, concluded –

“What in our view is important to note in this appeal is the effect of earlier judgments exs. A, B & C on the present case between the plaintiff and the defendant. In that wise, it is necessary to find out how exhibit A1 the plan tendered in the original judgment exhibit A is to the plan exhibit D tendered in the present case.

The plan exhibit D tendered in the present case as contended by Mr. Oloko for the defendant does not show any feature apart from the enclosed area edged red said to be the area trespassed upon. It does not show the buildings of the Agbongun family, four in number referred to in exhibit A. In exhibits A, B & C, the defendants in the case were ordered to remain on the land but not to build anything more on the land than their then existing buildings. The effective date of the order was 29th June, 1964, the date of the judgment exhibit A. The plan tendered then exhibit A1 contains the carpenter’s shed. The plan attached to the present case and referred to in paragraph 3 of the statement of claim is OG.150/70 and it is exhibit D. As we have earlier pointed out, the area verged red is the portion allegedly trespassed upon.

In 1971, the plaintiff’s 1st witness Mr. Ogunbiyi licensed surveyor who made exhibits A1 and made a composite plan exhibit E, he showed the area edged red in exhibit D on the north-east portion of exhibit E. The area edged red in exhibit D which is the area in dispute in the present case is referred to in exhibit E as “See plan no.OG.158/70.” exhibit E was made in 1971, the area in question was being built in May, 1969. It is therefore clear that the operation on the area edged red in exhibit and referred to in exhibit E is an exercise in excess of the right conceded to the Agbongun family by exhibit A. The relevant portion of exhibit A reads:-

‘1. Title to ownership and recovery of piece of land verged red on the survey plan No.OG.27A/62 of 20.5.64 (exhibit “B”) drawn by S. Akin Ogunbiyi, licensed surveyor. The value of the land is 350.

2. Injunction restraining the defendants, their agents, or anybody claiming ,through them from further trespassing thereon, except the portions already occupied and built upon by the 1st, 2nd, 3rd and 4th defendants, as shown in exhibit “B”

It is to be noted that the plan OG.27A/62 exhibit B referred to in the judgment exhibit A is the same as exhibit A1 tendered in this case by consent. It is also to be noted that the 2nd defendant in exhibit A Ashiru Adewuyi is the defendant in this case.

By erecting a new building on the land litigated upon in 1963 see exhibit A, he had exceeded his right as defined by exhibit A. It is needless to point out that exhibit B & C have the same effect exhibit A since they are the result of appeals lodged by the plaintiff which were successively dismissed.”

The judgment from which the excerpts (supra) are quoted, was given on 28th February, 1975 and admitted as exhibit B in the present case.

There was no further appeal against exhibit B to the Supreme Court. In 1975, and to be exact, in a writ of summons dated 23rd July, 1980 and filed on the same date, the plaintiff/respondent started suit no. 1/265/80 in the Ibadan High Court of Oyo State against the present defendants. In both the High Court and the Court of Appeal, the defendants lost to the plaintiff. The appeal now in this court is by the defendants against the Court of Appeal Judgment.

From exhibits A1, A, B, E and F, which are judgments of Ibadan City Grade B Customary Court, Ibadan City Grade A Customary Court, Western State Court of Appeal and High court of Western State of Nigeria Ibadan respectively, tendered and admitted in evidence in the present case, it is discernable that Salami Agbongun, who was then the Head of Aganku family, defended the case in exhibit A1, for himself and on behalf of his family. Salami Agbongun was succeeded by his brother Salawu Agbongun as head of Aganku family and also the 1st defendant in the present case. The reason why it is desirable to put in evidence the whole proceedings in a previous case before a customary court, is to enable the trial court to see whether the previous case was prosecuted or defended in a representative capacity; since filing of pleadings and the applicability of the evidence act are not part of the customary court system, even where such a court is presided over by a legal practitioner. It is therefore my view that in the present case and with the contents of the exhibits mentioned (supra), the learned trial Judge was perfectly justified, even without that portion of the 1st defendant’s evidence, to conclude that-

“I hold on the evidence before me that all the defendants are bound by the judgment in the 1963 case. The 1st defendant is a member of the family represented by Salami Agbongun in the 1963 case. The 1st defendant’s evidence before me and a careful study of the judgments relating to that case both at first instance and on appeal show that the case was defended by Salami Agbongun not in his own right but in a representative capacity. The 3rd defendant is a party to the 1963 case.

The 5th defendant has not proved to my satisfaction that he derived title to the area he built on before 1963 action. In the result the limited injunction contained in exhibit A in terms earlier set out is binding on the 1st and 3rd defendants. The 5th defendant is bound by the judgment declaring the plaintiffs family to be the owner of the land. He has not proved that he derived title from that family.”

These findings cannot be faulted. It is also my view that the much criticized portion of the 1st defendant’s evidence that –

“In 1963 he was the head of our family. When Aganku family sued our family in 1963, he defended the action on our behalf.” is an elucidation to and a clarification of exhibit A1 rather than contradiction. It does not in anyway contradict exhibit A1 as the learned counsel wants this court to uphold.

The rule in Ajayi (substituted for Salihu) The Balogun of Ijanna v. Aina, the Oba Ibese is not an inflexible rule enunciated to disable the court in its efforts to do substantial justice having regard to the facts and circumstances involved in a particular case. The findings in exhibit A1, as affirmed by the subsequent decisions in exhibits A, B and E that the suit was defended by Salami Agbongun as head of the Agbongun family still remain valid and binding on the members of that family and their privies. Neither the present 1st defendant as successor to Salami Agbongun as head of the Agbongun family nor any member of that family or any of the defendants in exhibit A1 further appealed against those findings.

The dominant question is a broad one of whether substantial justice has been done. In the case in hand, it is whether looking at the proceedings as a whole and taking into account what was properly being proved, the conclusion arrived at by the trial Judge was a just one.

A careful consideration of exhibit D, the survey plan in this case and exhibit C, the survey plan in exhibit A1, show clearly that the piece of land in both plans is identical. The evidence adduced by the plaintiff was preferred to that of the defendants. The case against the 2nd defendant was dismissed as the structure complained of was found to be within the area granted to him in exhibit C; while the evidence against the 4th defendant that his uncle built temporary sheds and a shop outside the area granted in exhibit C was found to be unsatisfactory.

As for the 1st and 3rd defendants, the learned trial Judge, after carefully examining the evidence before him and his visit to the land in dispute found as follows-

“If exhibit C depicts the true features on the land in 1963, a simple comparison of the features shown in that plan with those shown in exhibit D shows without doubt the additions to the buildings which were on the land during the 1963 case. It is clear from exhibit A1 (the judgment in the 1963 case) that the cause of dispute at that time was the “four houses” which were built on the land. Apart from the house marked “Owolabi Adetunji Aganku’s building” and the structure marked “church built by Joseph Adeogun” there were four buildings shown on exhibit C and on the evidence it is not difficult to identify that in respect of which each of the defendants was sued in 1963.The store shown on exhihit C was built by a member of Aperin family and taken over by Agbongun family while the unmarked building was Laore Fabikan’s building. The plaintiff’s third witness Chief Ogunbiyi gave evidence which in my judgment was unshaken in cross-examination that the houses on the land in 1962 were as shown on the plan exhibit C. His evidence and that of the 5th plaintiff’s witness, Murana Adeniyi, coupled with the plan exhibit D, show clearly the new structures, that is structures not there in 1972, with the exception of the temporary shed near the unmarked building which, at least at the time of inspection, was no more on the land. The denials by the 1st, 3rd and 5th defendants that they erected any new buildings after the judgment in the 1963 case are weak and unacceptable. The area on which the buildings now said to belong to the 1st and 5th defendants are was vacant in the plan exhibit C. It is most improbable that if these buildings had been there during the 1963 case (or before, as the 1st and 5th defendants will have me believe) they would not have been shown on the plan exhibit C and the 5th defendant, in particular, would not have been sued in that action. I do not believe the evidence of the 1st and the 5th defendants that their buildings on the land had been there before and not after the 1963 case. As for the 3rd defendant the area he built on as at 1963 was clearly shown on exhibit C. The shops now in front of his house are clearly additions made after the 1963 case.”

The findings were confirmed by the Court of appeal where Uche Omo, J.C.A. reading the unanimous judgment of that court said-

“The further buildings of the 1st and 3rd defendants were also seen by the trial Judge himself when he visited the locus in quo…

On the facts as found by the trial Judge even though he denied ever building a house, 5th defendant admitted that Agbongun made a grant of land to his grandfather. The learned trial Judge also believed and preferred the testimony of the plaintiff to the effect that “The 5th defendant built between the store and Owolabi Adetunji’s house,” and that he built on the land through the 1st defendant, the area between the store, to the south-east, and Owolabi Adetunji’s house is shown vacant and unbuilt in exhibit C. But in exhibit D, it had been built up as the green verging shows. Although 5th defendant’s name was not specifically indicated on exhibit D, it is the area he built that was shown and it was open to the trial court to believe the evidence of the plaintiff that he built [the 5th defendant] within that area.” [Words in brackets supplied].

These are concurrent findings of fact by the trial court and the Court of Appeal. I find no convincing reason to disturb them. See Lucy Onowan & Anor. v. J.J.S. Iserhien In Re Lucy Onowan (1976) 9-10 SC.95, Fashanu v. Adekoya (1974) 1 All NLR (Pt.1) 35 and Ebba v. Ogodo (1984] I SCNLR 372.

The other issue that remains to be considered is the complaint by the defendants that the power of attorney granted to Murana Adeniyi by Alimotu Adewole, Mr. Salami Owolabi and Mr. Joseph Adediran Onifade clothed him with authority to act for themselves and on behalf of Joseph Adeogun family and not for and on behalf of Aganku family. He therefore submitted that the action was incompetent and it ought to have been struck out.

There is no doubt that there is an apparent misnomer in the power of attorney exhibit G. The application of the plaintiff and the order granted by the court as a result thereof is to clothe Murana Adeniyi with the authority to act for and on behalf of the donors of the power and the Aganku family, but the wording of exhibit G shows that Murana Adeniyi is to act for and on behalf of the donors and Joseph Adeogun family.

As the learned trial Judge remarked in his judgment, the plaintiff, during the proceeding of the case brought a rather unusual application that she be allowed to continue with the action through her attorney, Murana Adeniyi. This was granted. Unfortunately, the power of attorney exhibit G did not convey the order prayed for and granted by the court. However, the plaintiff, Madam Alimotu Adeoti gave evidence in the case. The granting of the power of attorney to Murana Adeniyi in the circumstances of the case, to sue on behalf of the plaintiff is superfluous, particularly when the suit was already properly filed by the plaintiff. All the necessary parties to the action were before the trial court and the proceedings proceeded to conclusion without any form of objection on that ground by the defendants.

I endorse the conclusion by the learned trial Judge that:-

In view of the fact that the plaintiff herself appeared before me and indeed testified and of the fact that the action was in her name I do not find the technicality as to the contents of the power of attorney material. If the power of attorney is ineffective as contended, the fact remains that the plaintiff Alimotu Adeoti instituted the action herself and appeared to prosecute it.

The action is properly constituted in my judgment”, which was subsequently affirmed by the Court of Appeal. As rightly observed by the Court of Appeal, Joseph Adeogun is a member of Aganku family and he prosecuted the suit 1/265/80 exhibit A1 for himself and on behalf of Aganku family. The proper parties were before the trial court and there was no miscarriage of justice.

In the result, the appeal fails on all the grounds filed and argued. It is accordingly dismissed with N500.00 costs against the defendants/appellants in favour of the plaintiff/respondent.

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SC.4/1987