Alhaji Surakatu I. Amida & Ors. V. Taiye Oshoboja (1984)

LawGlobal-Hub Lead Judgment Report

BELLO, J.S.C. 

The case on appeal, hereinafter referred to as suit AB/24/55, together with its sister case, hereinafter referred to as suit AB/29/55, were instituted almost 30 years ago. On 28th November 1955 the Oshoboja family filed suit AB/24/55 against the named defendants specified in the 15 writ of summons, which reads:

“SUIT NO. AB/24/1955

BETWEEN:

KELANI OSHOBOJA

(For himself and on behalf of the Oshoboja Family) – PLAINTIFF

AND

1. TESI OPEBIYI
2. AMIDA OPEBIYI
3. DISU IDOWU – DEFENDANTSS
4. RAUFU DADA

The plaintiff claims against the defendants a declaration of title to all that piece or parcel of land situate, lying and being at Ijegun Village, Ikeja District; and also for possession of the said land .. Value of the said land is 6000pounds. DATED at Lagos this 28th day of November, 1955.”

On 6th December 1955, the Fagbile family filed suit AB/29/55 against the Koaki family which is the same as the Oshoboja family. The writ reads:

“SUIT NO. AB/29/55

BETWEEN

TESI OPEBIYI

(For himself and as representatives of the other members of the

Fagbile family of Ijegun) – PLAINTIFF

AND

1. SHITIU OSHOBOJA
2. KELANI OGUNLERU

(For themselves and as representatives of the Koaki

family of Ijegun) – DEFENDANTS

The plaintiff’s claim against the defendants is for:

(a) Declaration that the plaintiff is the owner of a piece of land situate at Ijegun via Idunmu in the Agege District, under native law and custom and that the defendants are customary tenants of the plaintiff in respect of the said land.

(b) Declaration that the defendants have forfeited the customary right of occupancy in that they the defendants claim wrongfully to be the owners of the land and have been dealing with the land as such, i.e. selling etc.

DATED the 6th day of December, 1955.”

Before the hearing of the two suits commenced before Taylor J., learned counsel for the parties conceded that both suits were concerned with the same parcel of land and agreed to have suit AB/24/55 tried first and that suit AB/29/55 should abide by the result of AB/24/55. Accordingly suit AB/24/55 was tried and at the end of the trial on 2nd June 1958, Taylor J. gave judgment in favour of the Oshoboja family on the issue of title to the land in dispute. On the same day, in consequence of the agreement of learned counsel, Taylor J. dismissed the claims of the Fagbile family, who were the plaintiffs, in AB/29/55.

The defendants in suit AB/24/55 successfully appealed against the decision of Taylor J. in that suit to this Court which on 4th November 1966 set aside the judgment in the said suit and remitted the case to the High Court for re-trial. Although the very foundation upon which Taylor J. rested his decision in suit AB/29/55 was demolished by this Court, for some inexplicable reason the Fagbile family did not appeal against the decision of Taylor J. in that suit. Consequently the judgment of dismissal of the claims of Fagbile family against Koaki family, alias Oshoboja family, in suit AB/29/55 still subsists.

It is significant to note that before the commencement of the retrial of suit AB/24/55 in the High Court, the plaintiffs with the leave of the Court filed a reply to the statement of defence. The relevant paragraphs of the reply read:

“2. The plaintiffs plead the proceedings and judgment between the same parties in Suit No. AB/29/55 (Tesi Opebiyi etc. Vs. Shittu Oshoboja etc.) and will rely thereon at the trial of this action.

3. The plaintiffs aver accordingly that the defendants cannot be heard to allege that they were the owners of the land claimed by them in Suit No.AB/29/55 against the plaintiffs, or that the plaintiffs were the customary tenants or descendants of the slave or slaves of the defendants.
4. The plaintiffs aver that apart from admissions contained therein all the allegations of fact in the statement of claim have been finally determined by the 35 proceedings and final judgment in Suit No. AB/29/55 herein before pleaded.”

I think it is also pertinent to point out that during the hearing of the case at the retrial, the 1st defendant applied for the leave of the court to defend the suit for himself and on behalf of the Fagbile family. The 2nd and 3rd defendants were then dead. Learned counsel for the plaintiff strenuously opposed the application to defend in a representative capacity which in his ruling of 30 January 1981 the learned judge refused to grant. I shall deal in detail with this aspect of the case later as it is one of the crucial factors for the determination of the issue of estoppel per rem judicatam.

Beckley J. retried the case. Apart from the surveyor (PW2) who produced the plan of the land in dispute, only one witness testified for the plaintiff. He was Taiye Oshoboja who was substituted as the plaintiff after the death of the original named plaintiff, Kelani Oshoboja. Four witnesses gave evidence for the defence. In his assessment of the evidence adduced by the parties, the learned judge found the evidence of Taiye Oshoboja on the traditional history of the land in dispute unreliable and his evidence on recent events as regards the occupation and tenancy of the land as very scanty. On the other hand, the judge was highly impressed by the evidence on traditional history and tenancy of the land adduced by the defendants. He found several tenants were put on the land in dispute by the defendants. He accepted the case for the defendants.

On the issue of res judicata, the learned judge was of the view that since the 5 decision of Taylor J. in suit AB/24/55 was set aside by the Supreme Court the very foundation of the decision in suit AB/29/55 no longer existed and the judgment in suit AB/29/55 must be deemed to have been impliedly set aside as it was null and void. He accordingly dismissed the plaintiff’s claim in these terms:

“In my view the case for the plaintiff must be dismissed for the following reasons:

(1) The claim before the court reads –

The plaintiff claims against the defendants a declaration of title to all that 15 piece or parcel of land situate lying and being at Ijegun village Ikeja Division, and also for possession of the said land.

It is not stated in the claim what type of interest the declaration sought is for; whether this is a declaration of title in fee simple, or under customary law, is not stated.

(2) There is evidence that the plaintiffs allege that part of this land has been sold to one Manager Adewunmi. The portion alleged sold has not been delineated in the plan tendered.

See Okafor Egbuche and Others v. Chief Idigo and Another 11 N.L.R. PAGE 104. Aliu Adekanbi v. Adebayo Ayorinde 1970 1 All N.L.R. Page 331.

(3) The evidence of the principal witness for the plaintiff Taiye Oshoboja is unreliable, and I cannot accept it. For the above reasons, the case for the plaintiff is dismissed in its entirety.”

The plaintiff was not satisfied with the decision of Beckley J. and appealed against it to the Court of Appeal. In his judgment (with which Ademola and Kutigi JJ.C.A. agreed), Kazeem J.C.A. (as he then was), dealing with the several grounds of appeal held that the judgment of Taylor J. in suit AB/29/55 was valid and subsisting and constituted res judicata against the defendants who are estopped from contesting the issue of title to the land in dispute. The learned justice thought that was sufficient to dispose of the appeal. However, he proceeded to hold that the trial judge erred in law under the circumstances of the case in refusing to grant a declaration of title in favour of the plaintiff because the plaintiff’s family had sold a portion of the land in dispute to one Manager Adewunmi and also because the plaintiff had not stated whether the declaration sought was in fee simple or under native law and custom. He relied on Lawal v. Dawodu (1972) 1 All N.L.A. 270 at 282; Fadiora v. Gbadebo (1978) 3 S.C. 229 and Chinwendu v. Mbamali (1980) 3-4 S.C. 31 at 50 to buttress his holding.

Kazeem, J.C.A. was also of the view that “the trial judge either did not consider properly or failed to consider at all the evidence of acts of ownerships exercised on the land in dispute by the appellant.” Having reviewed and assessed the evidence adduced by the parties, the learned justice concluded that the decision of the trial judge was against the weight of evidence. He accordingly allowed the appeal, set aside the judgment of Beckley J. and granted the declaration of title and possession of the land in dispute to the plaintiff.

The defendants, hereinafter called the appellants, have now appealed to this Court against the judgment of the Court of Appeal on grounds of appeal. The plaintiff will be referred to as the respondent. The substance of the complaint in the 1st and the second limb of the 2nd grounds of appeal is that Taylor J. acted without jurisdiction in dismissing suit AB/29/55 when there was no “judicial hearing” before him as required by section 9 of the High Court Law, Cap 44, Laws of Western Region of Nigeria 1955 which was the applicable Law and the Court of Appeal erred in Law in upholding the dismissal. Mr. Molajo contended that under section 9 of the Law a “judicial hearing” is a condition precedent to the jurisdiction of the court for the determination of matters in difference and that no consent of the parties can waive such statutory condition. Since Taylor J. dismissed the suit without further hearing other than the consent of the parties that it should abide by the result of suit AB/24/55, learned counsel argued, the judgment in suit AB/29/55 10 is a nullity.

Mr. Molajo further contended that because the judgment of Taylor J. in suit AB/24/55 had been set aside and a retrial ordered, there was no issue decided between the parties which would estop either as the effect of setting aside the judgment was retrospective and, that being the case, there has never been the result of suit AB/24/55 by which suit AB/29/55 should abide. I may observe that learned counsel was unable to refer us to any authority supporting his contention relating to the retrospective effect of the judgment of an appellate court which set aside the decision of a lower court despite our request for such authority.

In his contention that the judgment of Taylor J. in suit AB/29/55 is a nullity, Mr. Ade-Makanju for the 4th appellant based his argument merely on the consent of the parties that the latter suit should abide the result of suit AB/24/55. He reiterated the view of Beckley J. that since the very foundation, i.e. suit AB/24/55, of the judgment in suit AB/29/55 had collapsed, the said judgment is a nullity because its condition precedent under the agreement, i.e. the result of suit AB/24/55, no longer subsists.

Learned counsel have put on a lot of industry in their submissions on the issue of nullity of Taylor’s J. decision in suit AB/29/55. With all due respect, I consider that the grounds of appeal under consideration are tantamount to an appeal to this Court from the back door against the judgment of Taylor J. when there has been no such appeal before us. Upon the principle stated in Madukolu v. Nkemdilim (1962) 1 All N.L.R. 587 at p.597, Adeigbe v. Kushimo (1965) N.M.L.A. 284 at 287 and Obimonuren v. Ojumoola (1966) 1 All N.L.A. 250 at 252, the court of Taylor J. had jurisdiction and was competent to hear and determine the dispute between the parties and to make an order or give judgment by their consent. I agree with Chief Williams that if in the exercise of the jurisdiction of the court, Taylor J. made a mistake and gave a wrong judgment, the judgment is binding unless and until it has been set aside on appeal or in proceedings instituted for that purpose. Whether the judgment is right or wrong, it must stand and cannot be questioned in these proceedings: see Meyers v. Casey & Others 17 C.L.R. 90 and Kinch v. Walcott & Others (1929) A.C. 482. It must be emphasized that the judgment of a court in any civil or criminal proceedings including all questions of law and facts decided by that court are valid and effective until they have been set aside by an appellate court: Odiase v. Agho (1972) 1 All N.L.R. 170 at 176 and Melifonwu & Ors. v. Egbuji & Ors. (1982) 9 S.C. 145. Since the judgment of Taylor J. in suit 45 AB/29/55 is not on appeal before us it would not be right, in my view, for this Court to determine its validity on the merits. Effect must be given to its presumed validity. For these reasons the grounds of appeal under consideration therefore fail. The 2nd ground of appeal complains in the main that the learned justices of the Court of Appeal erred in law in holding that the dismissal of suit AB/29/55 by Taylor J. operated as estoppel per rem judicatam against the appellants in favour of the respondent at the retrial of suit AB/24/55 when the parties in the two suits were not the same. It is pointed out that whereas suit AB/24/55 was instituted by the Oshoboja family against the defendants therein (i.e. the present appellants) in AMIDA & ORS. V. OSHOBOJA 539 their personal capacity, suit AB/29/55 was instituted by the named plaintiff therein (i.e. the present 1st appellant) in a representative capacity, to wit, for himself and on behalf of the Fagbile family which family was not a party to the other suit. Relying on Oragbaide v. Onitiju (1962) 1 All N.L.A. 32 at 38 and Shitta-Bey v. The Chairman L.E.D.B. (1962) 1 All N.L.R. 373 at 377, Mr. Molajo argued that because the parties are completely different in the contemplation of the law the judgment in favour of the respondent in suit AB/24/55, even if it was a valid and subsisting judgment, cannot operate as estoppel against the plaintiff (i.e. the Fagbile family) in suit AB/29/55. Accordingly there can be no estoppel against the Fagbile family.

In his forceful reply, Chief Williams contended that although the Fagbile family were not directly represented, the truth of the matter is that that family were “in reality fighting the suit, so to say, from behind the hedge.” He referred us to the affidavit of the original 1st defendant in support of his application to defend the suit AB/24/55 as the representative of the Fagbile family wherein the 1st defendant deposed that he represented the Fagbile family. Again, the affidavits in support of the application to the Court of Appeal made by the present 1st, 2nd and 3rd appellants to be substituted as parties for the deceased original 1stand 2nd defendants disclose that the deponents were authorised by the Fagbile family to continue the appeal.

I think, from the evidence and the decisions in Esiaka & Ors. v. Obiasogwu 14 W.A.C.A. 178; Nana Otori Atta v. Nana Bonsra (1958) A.C. 95 and Ibeneweka v. Egbuna (1964) 1 W.L.R. 219 at 266 relied upon by Chief Williams, I would not hesitate to find that the appellants contested the suit as the champions of the Fagbile family and the family was in reality fighting the suit from behind the hedge. Nevertheless, because of the circumstances of the case, I would not hold the Fagbile family to be parties to suit AB/24/55 as to be estopped by the dismissal of their claim in suit AB/29/55.

In parenthesis, I may state that I am not unmindful of the decisions in Santos v. Ikosi 8 W.A.C.A. 29 and Etiti v. Oguta (1976) 12 S.C. 123 at 131 where it was held that for the purpose of estoppel per rem judicatam “party” means not only a party named but also “a sleeping party”, that is, one who stood by knowing what was going on. Judgment may also be entered against a community though the suit was not in a representative capacity, if there is evidence that the defendant acted in a representative capacity and failure to obtain approval of the court to act in a representative capacity will not vitiate such Judgment; Nta v. Anigbo (1972) 1 All N.L.R. 74 at 84 and Wiri v. Woche (1980) 1-2 S.C. 1 at 32.

Now, I shall give my reasons for concluding that the Fagbile family were not sleeping parties to suit AB/24/55. I have earlier indicated that during the hearing of the case at the retrial the appellants applied for the leave of the court to defend the suit as representatives of the Fagbile family. It is significant to note that in opposing the application Mr. Kehinde of counsel, who held Chief Williams’ brief for the respondent herein, categorically informed the retrial court “The plaintiff (i.e. the respondent herein) sued the individuals and does not intend to sue the family.” Accordingly, the retrial judge, Beckley J., refused to grant the application. It is surprising that Chief Williams took a different turn at the hearing of the appeal in this Court, particularly in his brief wherein he wrote:

“the proceedings show that the defendants claimed that they represented the FAGBILE FAMILY but for reasons of doubtful validity Beckley J. declined to grant them the leave to represent the family. See the record of proceedings at pages 115-137 especially the affidavits of the 1st defendant at page 116 and that of certain members of the FAGBILE FAMILY at pp.124-125. The respondent does not support the decision of Beckley J. and will submit that the Supreme Court should exercise its powers under Order 3 rules 26(4), (5) and (7) and direct that the record be amended so that the defendants represent the FAGBILE FAMILY in this action.”

It was stated in Ayeno v. Omayajowo (1968) 1 All N.L.R. 72 at 76 that where an order of representation is sought and refused by the Court it is not permitted to prosecute a suit in a representative capacity. The corollary of that decision appears to be obvious, to wit, that where representation was sought and refused by the trial court a person sought to be represented ought not to be afflicted with the status of a representative capacity by a court of appeal. The application for representation of the Fagbile family having been rejected by the retrial court and there has been no appeal against its ruling, it would be wrong to regard the family as parties at this stage of the proceedings.

More importantly, the law will not permit a party to approbate and reprobate on the same issue. Having opposed the representation of the Fagbile family at the retrial of the case and asserted thereat that he did not intend to sue the family, the respondent must be bound by his words and the law will not accede to his change of stance. As the respondent’s case at the retrial was predicated against the appellants personally and not on a representative capacity, he is not permitted on appeal to contend the contrary: Douglas Menzies v. Umphe/by (1908) A.C. 224 at 232; Fadiora v. Gbadebo, (1978) 3 S.C. 219 at 228 and Aro v. Fabo/ude (1983) 2 20 S.C. 75 at 101 wherein the dictum of Denning M.R. in Fidelitas Shipping Co. v. V/O Exportchleb (1966) 1 Q.B. 630 at 640 was referred to:

“That issue having been decided by the court, can it be reopened before the umpire I think not. It is a case of ‘issue estoppel’ as distinct from ’cause of action estoppel’ and ‘fact estoppel,’ a distinction which was well explained by Diplock L.J. in Thoday v. Thoday. The law, as I understand it, is this: if one party brings an action against another for a particular cause and judgment is given upon it, there is a strict rule of law that he cannot bring another action against the same party for the same cause. Transit in rem judicatam: see King v. Hoare. But within one cause of action, there may be several issues raised which are necessary for the determination of the whole case. The rule then is that, once an issue has been raised and distinctly determined between the parties, then, as a general rule, neither party can be allowed to fight that issue all over again. The same issue cannot be raised by either of them again in the same or subsequent proceedings except in special circumstances, see Badar Bee v. Habib Merican Noordin. per Lord Macnaghten. And within one issue, there may be several points available which go to aid one party or the other in his efforts to secure a determination of the issue in his favour. The rule then is that each party must use reasonable diligence to bring forward every point which he thinks would help him. If he omits to raise any particular point, from negligence, inadvertence, or even accident (which would or might have decided the issue in his favour), he may find himself shut out from raising that point again, at any rate in any case where the self-same issue arises in the same or subsequent proceedings. But this again is not an inflexible rule. It can be departed from in special circumstances.”

Diplock L.J. made similar observation at p.642:

“In the case of litigation the fact that a suit may involve a number of different issues is recognised by the Rules of the Supreme Court which contain provision enabling one or more questions (whether of fact or law) in an action to be tried before others. Where the issue separately determined is not decisive of the suit, the judgment upon that issue is an interlocutory judgment and the suit continues. Yet I take it to be too clear to need citation of authority that the parties to the suit are bound by the determination of the issue. They cannot subsequently in the same suit advance argument or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is by way of appeal from the interlocutory judgment and, where appropriate, an application to the appellate court to adduce further evidence: but such application will only be granted if the appellate court is satisfied that the fresh evidence sought to be adduced could not have been available at the original hearing of the issue even if the party seeking to adduce it had exercised due to diligence.”

The issue of representation was settled at the retrial of the case. The respondent cannot reopen it in an appellate court when there has been no proper appeal against the decision of the retrial court.

The Court of Appeal committed another serious error of law in its misconception of the effect of the operation of plea of estoppel per rem judicatam even if such plea is available under the circumstances of the case. The Court of Appeal acted under the impression that the operation of the plea was sufficient to grant a declaration of title to the land in dispute to the respondent. This is certainly a mis-direction in law. It has been settled since Kodilinye v. Odu 2 W.A.C.A. 336 approved by the Privy Council in Udegbe v. Nwokafor (1963) 1 All N.L.R. 417 that where a defendant has not counter-claimed for a declaration of title, the dismissal of the plaintiff’s claim for a declaration of title does not mean that the land belongs to the defendant.

Again, it was decided in Eboha & Ors. v. Anakwenze (1967) N.M.L.R. 140 at 141 that the fact that a defendant as the plaintiff in a previous suit lost his claim for title to the land in dispute does not by itself help the plaintiff in a subsequent suit upon whom lies the onus to prove his case. It is only where the issue of ownership was raised and decided in the earlier proceedings in favour ‘of the defendant that should have settled his title to the land and rendered the operation of estoppel per rem judicatam in his favour: Duedu v. Yiboe (1961) 1 W.L.R. 1040.

Now in respect of the facts of the case on appeal, it may be recalled that in dismissing the claim of the Fagbile family in suit AB/29/55 Taylor J. did not decide in his judgment in that suit that the Oshoboja family were the owners of the land in 35 dispute. He made the decision to that effect in suit AB/24/55 which was set aside by this Court. Consequently, there was no decision on the issue of ownership in favour of the Oshoboja family in the previous proceedings which would estop the appellants from denying the claim of the Oshoboja family in the present proceedings. The legal consequence of the decision of Taylor J. in suit AB/29/55 is that the Fagbile family are estopped from claiming a declaration of title to the land in dispute against the Oshoboja family but they are not estopped from denying the claim of Oshoboja family for such declaration upon whom, the Oshoboja family, the onus of proof lies. The dismissal of suit AB/29/55 was not tantamount to a declaration of title in favour of the Oshoboja family.

From the premises, it is apparent that the respondent is not entitled to judgment upon his mere plea of estoppel per rem judicatam. He must prove his claim on the merits upon the preponderance of evidence. In appreciation of this requirement the learned retrial judge, Beckley J., carefully considered and evaluated the evidence adduced by the parties and concluded that the respondent had failed to discharge the burden of proof. He dismissed the claim. The Court of Appeal reassessed the evidence, reversed the finding of facts made by Beckley J. and granted the declaration of title and possession sought by the respondent. The grounds of appeal Nos. 4 and 5 complained against this decision of the Court of Appeal on questions of facts. Before considering this issue, I shall deal with ground 3 which says the Court of Appeal erred in law in holding that the evidence of Moliki Adi (DW2) and Musa Buraimo (DW3) was wrongly admitted.The Court of Appeal held the evidence to have been wrongly admitted because neither witness was specifically mentioned in paragraph 19 of the statement of defence as being among the tenants of the appellants and the amendment of the statement of defence, which was sought to plead the fact that both witnesses were tenants of the appellants, was refused by the retrial court. The Court of Appeal relied on Akinloye v. Eyiyola (1968) N.M.L.R. 92 and Emegokwu v. Okadigbo (1973) 1 E.C.S.L.R. 267.

Mr. Molajo contended that since it was pleaded that the appellants had from time immemorial exercised acts of ownership on the land and the respondent did not ask for particulars, the appellants were entitled to adduce evidence of any fact including granting leases to tenants to establish their acts of ownership. Learned counsel buttressed his submissions with numerous decisions of this Court particularly Olukade v. Alade (1976) 1 All N.L.R. (Part 1) 67 at 73-75 and Ayeni v. Sowemimo (1982) 5 S.C. 60 at 75-76.

Delivering the judgment of the Court in Olukade v. Alade (Supra) Idigbe, J.S.C. stated at pp. 73-74 thus:

“In a trial by a judge alone, as in the case in hand, a distinction must be drawn between those cases where the evidence complained of is in no circumstances admissible in law and where the evidence complained of is admissible under certain conditions.

In the former class of cases the evidence cannot be acted upon even if parties admitted it by consent and the court of appeal will entertain a complaint on the admissibility of such evidence by the lower court (although the evidence was admitted in the lower court without objection); in the latter class of cases, if the evidence was admitted in the lower court without objection or by consent of parties or was used by the opposite party (e.g. for the purpose of cross- examination) then it would be within the competence of the trial court to act on it and the court of appeal will not entertain any complaint on the admissibility of such evidence.”

InAyeni v. Sowemimo (supra) Udoma, J.S.C. observed at pp.75-76 as follows:

“Without attempting to lay down any rule of law, I think a distinction ought to be drawn between a non-disclosure of a cause of action and a default or the use of a wrong word or expression or the misuse of a word in pleadings. As was said by the West African Court of Appeal in Joseph Oguntokun vs. Amodu Rufai 11 WACA 55, 56, there is nothing to prevent a defendant in a suit from asking for particulars of any averment contained in a statement of claim even after the 40 statement of defence has been filed and delivered. And where therefore a party omits to set out in descriptive detail an allegation in his statement of claim and his opponent does not apply for particulars, he is entitled to give evidence at the trial of any fact supporting the allegation given by him. So too, it must be, where, as here, a particular word or expression of doubtful connotation is used in a statement of claim and is traversed generally in the statement of defence without any application for particulars.”

I think it is pertinent to point out that the appellants specified their tenants in paragraph 9 of their statement of defence as amended with the leave of Taylor J. thus:

“19. The 3rd and 4th defendants and Bisiriyu Gbeleyi, Momo Disu, Ganiyu Giwa, Sala Moshehinmu, Saka Aina Wali and Tasilimi Ogungbemi and their predecessors in title have been farming portion of the land in dispute as customary tenants of 1stand 2nd defendants and their predecessors.”

The tenancies of Moliki Adi (DW2) and Musa Buraimoh (DW3) were not pleaded. An application was made during the retrial after the respondent had closed his case to amend the statement of defence, among others, to plead the tenancy of Moliki Adi in paragraph 25 thereof in these terms:

“25. The first defendant let one of his big cocoa farms on the land to one Moliki Adi for ’91C2’a350 now N100 per annum to the knowledge of the plaintiffs. The defendant will rely on a tenancy agreement between him and the said Moliki Adi from 1st January, 1955.”

It is worthy to note that opposing the application, the respondent stated that amendment of the pleadings at that stage of the proceedings would prejudice his case. Refusing to grant the amendment, Beckley J. observed that he was not satisfied that the respondent would not be prejudiced by the amendment.

It appears from the foregoing that the parties joined issue in respect of the tenancies on the tenants specified in paragraph 19 of the statement of defence. The evidence of any other tenant, particularly that of Moliki Adi the plea of whose tenancy was disallowed by the retrial court, is a non-issue. In my view, if the appellants had simply pleaded that he had “tenants” without giving any name, he would be entitled to call any of his tenants but because the appellants had given particulars of their tenants, they were not entitled to adduce evidence of other tenants at large within the compass envisaged by Ayeni v. Sowemimo (supra). The appellants must abide by the general rule that parties are bound by their pleadings and any evidence which is at variance with the averments in the pleadings is inadmissible as it goes to no issue and should be disregarded by the court if it is inadvertently admitted: Owoniyi v. Omotosho (1961) All N.L.R. 304; Woluchem v. Gudi (1981) 5 S.C. 291 at 320 and the other cases cited therein. Under the circumstances the Court of Appeal was perfectly right, in my view, in holding the testimony of Moliki Adi and Musa Buraimoh to have been wrongly admitted and in disregarding it in its reassessment of the totality of the evidence led by the parties.

It must be appreciated, however, that the exclusion of the evidence of both witnesses only goes to weaken the case for the appellants. It does not strengthen the respondent’s case. A plaintiff must succeed on the strength of his case and not on the weakness of the defence. It remains to consider therefore whether the respondent is entitled to judgment on the strength of his case. As I have earlier shown the retrial judge found he was not but the Court of Appeal decided he was. Grounds of appeal Nos. 4 and 5 challenged the decision of the Court of Appeal on this question of findings of facts.

Now, the principles under which an appeal court would interfere with the findings of a trial court on questions of facts have been laid down by several authorities of this Court. It is settled law that appraisal of evidence and making findings of facts therefrom is ordinarily within the domain of the trial court which has had the opportunity of seeing the witnesses and watching their demeanour. A court of appeal ought not to embark on a fresh appraisal of the same evidence in order to arrive at a different conclusion from that reached by the trial court. An appeal court may only interfere with the findings of facts of a trial court if it is satisfied that the trial court in its appraisal and evaluation of the evidence has not made any use of the advantage of seeing the witnesses and observing their demeanour or the finding is perverse and cannot reasonably be supported having regard to the evidence or the finding is an inference from established facts so that an appeal court is entitled to draw its own conclusion or the trial court has applied wrong principle of law: see Woluchem v. Gudi (1981) 5 S.C. 291 at 326, Okuoja v. Ishola (1982) 7 S.C. 314 at 349 and Nwobodo v. Chief Federal Electoral Officer (1984) 1 S.C. 1 at 53 for the recent pronouncements of this Court.

In the instant case, the retrial judge meticulously appraised the evidence of the only witness who testified on the merits for the Oshoboja family. Because the witness had contradicted himself under cross-examination in that he first denied knowing some specified persons who were alleged to have been tenants of the appellants and later admitted knowing them and also because he denied his earlier evidence that a bailiff had demolished the house of the 1st defendant, the learned trial judge found the witness as untruthful upon whom no reliance could be placed on the traditional history of the land. As regards the evidence about the occupation and tenancy of the land, he found exhibit 3 to be the only evidence of any importance. The exhibit is a judgment of the Ikeja Native Court dated 13th March 1979 in which Amida Opebiyi (2nd defendant and a member of the Fagbile family) was stated to be a tenant of Shittu Oshoboja (a member of the Oshoboja family). He considered the exhibit was not conclusive that the appellants were tenants of the respondent under the circumstances of the case. He found the appellants put tenants on the land.

In their reappraisal of the evidence, the Court of Appeal relied heavily on the judgment of Taylor J. in suit AB/24/55 and concluded that the fact that Amida Opebiyi was a tenant of Shittu Oshoboja supported the respondent’s claim. The Court of Appeal has no justification to rely on Taylor’s J. judgment which had been set aside by this Court. The court was wrong to make use of a finding of fact in a 25 judgment which had been set aside.

The Court of Appeal committed another error of appraisal when it stated in its judgment:

“It is equally significant that the learned trial judge did not consider at all the evidence adduced by the appellants that they had sued the Kudenbu family in respect of the land in 1910 and 1911. It was held by the Supreme Court of Nigeria in Chiwendu v. Mbamali (1980) 3/4 S.C. 31 at page 59 such fact can be relied upon as an act of ownership; and that was what the appellants did in this case by paragraph 7 of their statement of claim which averred that –

‘The said Oshoboja was in undisturbed and uninterrupted possession of the said land for many years exercising all rights of ownership until about the year 1910 or 1911 when portion of it was trespassed upon by Kudeyinbu which resulted in the following Suits – 40

(a) Kudeyinbu v. Oshoboja

(b) Oshoboja v. Kudeyinbu

heard and determined by the then Supreme Court of Nigeria at Lagos between 1910 and 1912. The plaintiffs will refer to these Suits at the hearing of this action.’

Evidence was also adduced on the issue by Taiye Oshoboja as follows:

“OSHOBOJA was the grandfather of KELANI OSHOBOJA who instituted this action. Same OSHOBOJA inherited the land from ONO OSHELE, someone disturbed him on the land. KUDEYINBU went to court. I obtained certified true copy of the court’s proceedings. This is the paper I obtained from Lagos.”

The record of proceedings in the two suits Kudeyinbu v. Oshoboja and Oshoboja v. Kudeyinbu were admitted in evidence at the retrial as exhibits 1 and 2 respectively. Though the Court of Appeal regarded both suits as having established ownership of the land in dispute in favour of the respondent it seems that court did not bother to peruse the judgment in either suit. The suit in which Kudeyinbu claimed damages for trespass against Oshoboja was terminated with an interlocutory order without a final judgment. The order by Osborne C.J. reads:

“BY COURT:

Defendant has trespassed the land marked GREEN but say not planted on it. At suggestion of court both parties give an undertaking not to cross the cut boundary marked by the Apena. It is ordered that the parties clear the boundary sign marked by the boundary and shown in the plant signed by the court as assertioned to that order in August of every year, the defendant to clear it this year.

Proceedings stayed till further order Liberty to apply. Order for judgment of money in court to Mr. Oke.”

The consent judgment delivered by Winkfield Ag. C.J. in the other suit wherein Oshoboja claimed damages for trespass against Kudeyinbu is also short. It reads:

“By consent the court orders that the boundary between the parties fixed by the court in the case of Kudeyinbu v. Oshoboja be marked out by Mr. Oke with cement pillars and that the cost of marking out the boundary drawing 39pounds. 16s. Od. be deposited in court within fourteen days by the parties in equal shares and further the court makes an order restraining (I) The defendant his people tenants and servants from crossing the boundary and entering upon the land of the plaintiff and his tenants and (II) The plaintiff his people tenants and servants from crossing the boundary and entering upon the land of the defendant and his tenants.”

It is apparent the two suits were concerned with a boundary dispute between the parties over their lands and the then Supreme Court decided and fixed the boundary. It is clear that both parties owned some portion of the land in the two suits. In the instant case, the respondent’s testimony disclosed that the respondent was not born when the two suits were decided and he did not “know the exact place.” Moreover, he stated that the appellants have no land at all at Ijegun Village where the land in dispute in the present proceedings is situated. That being the case, there is no reliable evidence identifying the land in dispute in the case on appeal as being the very land awarded to Oshoboja in the 1911 case. In consequence the Court of Appeal misdirected itself in treating the two suits as evidence of the respondent’s ownership of the land now in dispute. In my view, this is not a proper case for the Court of Appeal to interfere with the findings of facts of the trial court. The appraisal of the evidence by the retrial judge is faultless while its reappraisal by the Court of Appeal has many pitfalls.

For the foregoing reasons, the appeal is allowed. The judgment of the Court of Appeal including the order as to costs is set aside and in its stead the decision of Beckley J. dismissing the respondent’s claim is restored.

The appellants are entitled to costs in the Court of Appeal assessed at N200 and in this Court at N300.

OBASEKI, J.S.C.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, Bello, J.S.C. I agree with all the opinions on the issues raised before us in the appeal contained in the said judgment and I adopt them as my own. Two issues however appeal to me to warrant my supporting comments. They are:

(1) Whether the Court of Appeal was correct in holding that the judgment of Taylor, J. in suit AB/29/55 operated as estoppel per rem judicatam against the defendants/appellants in these proceedings;

(2) Whether the judgment of Taylor, J. in suit No. AB/29/1955 was a nullity. The relevant ground of appeal raising these issues reads:

“2. The learned Justices of the Federal Court Appeal erred in law when they held that the purported dismissal of AB/29/55 operates as estoppel per rem judicatam against the plaintiffs in AB/29/55.

Particulars

(a) Suit No. AB/24/55 was an action taken against the defendants therein in their personal private capacity whereas AB/29/55 was an action taken by the plaintiffs therein as representatives of a class which class was not a party to AB/24/55.

(b) The court which decided AB/29/55 was not a court of competent jurisdiction because it failed to comply with a statutory pre-condition of a valid adjudication prescribed by sections 8 and 9 of the High Court Law i.e. a 25 condition of its jurisdiction;

(c) The judgment in AB/24/55 having been set aside and the case sent back for retrial, there was no issue decided between the parties which could estop any of them as the effect of such setting aside in (sic) that there has never been that judgment which was set aside;

(d) The parties were not the same;

(e) No one can waive the statutory pre-condition or pre- requisite of the court’s jurisdiction.”

For the reasons set out by my learned brother, Bello, J.S.C. in his judgment, it is untenable to contend that the High Court presided over by Taylor, J. was not a court of competent Jurisdiction. The Court was established by the Constitution Order as a court of superior record with all the powers of such a court. Particulars (b) and (c) given in support of the ground are therefore without substance.

I agree with my learned brother, Bello, J.S.C. that the respondent having successfully opposed appellant’s application to defend the suit AB/24/55 in a representative capacity, cannot now be heard that despite his conduct, the Fagbile family fought the action from behind the hedge. The refusal of the order can only be interpreted to mean that the court will not treat the defence as having been conducted by the defendants in a representative capacity. This has created a difference in 45 the parties to suit AB/24/55 from the parties to suit AB/29/55 to make ineffectual the plea of estoppel per rem judicatam against the appellant. To further emphasise the point, I shall set out here below the enrolled judgment in suit AB/29/55. It reads:

Suit No. AB/29/55

Enrolment of Judgment

Between:

Tessi ‘Opebiyi – Plaintiff

(For himself and as representative of the

other members of the Fagbile Family of Ijegun)

And

(1) Shittu Oshoboja

(2) Kelani Ogunlaru – Defendants

(For themselves and as representatives of the

Koaki Family of Ijegun)

Signed John Taylor

Judge

Upon the following claims of the plaintiffs against the defendants to wit: “The plaintiff’s claim against the defendants is for –

(a) declaration that the plaintiff is the owner of a piece of land situate at Ijegun via Idimu in the Agege District under native law and custom and that the defendants are customary tenants of the plaintiff in respect of the said land.

(b) Declaration that the defendants have forfeited the customary rights of occupancy in that they, the defendants claim to be the owners of the land and have been dealing with the land as such i.e. selling, etc.”

coming up for hearing before the Honourable Mr. Justice John Taylor on the 18th 30 day of April, 1958, in the presence of Mr. Molajo, counsel for the plaintiff and Mr. Kotun, counsel for the defendants, both parties having agreed that this case should abide the result of the case in suit No. AB/24/55 Kelani Oshoboja v. Tesi Opebiyi and others, the court, after hearing the evidence of both parties and their witnesses in that suit, adjudges and orders as follows:

“I therefore dismiss the plaintiffs’ case with costs assessed in favour of the defendants in the sum of 30 guineas.”

Issued at Ikeja under the Seal of the Court and the Hand of the Presiding Judge this 2nd day of June, 1958.

Sgd. Afolabi Akinosho (sic)

Registrar High Courts.”

This drawn up enrolment followed the learned trial judge’s notes which reads (sic):

Suit No. AB/29/55

“Between

Tesi Opebiyi & Others – Plaintiff

and

Shittu Oshoboja – Defendant

Molajo for Plaintiffs

Kotun for Defence

Court: As this action is between the same portion (sic) as in 24/55 and in respect of the same subject matter, the award of title to the present defendant constitutes a bar to this case. Counsel have agreed that this action should abide the former. I therefore dismiss the plaintiffs’ case with costs to be assessed.

Kotun says the out of pocket expenses is 2/6 and asks for guineas.

Molajo suggests 10 guineas.

Court: costs assessed in favour of the defendant in the sum of 30 guineas.

Sgd. John Taylor

Judge 2/6/52″

This judgment was therefore given not after hearing evidence and addresses in the suit but merely after a formal hearing and on the basis of the decision in suit No.AB/24/55.

The appeal to the Supreme Court against the grant of title to the plaintiffs in suit No. AB/24/55 ended in favour of the defendants and the grant of title was set aside and the suit remitted to the High Court for retrial. This was on 6th November, 1966. Brett, J.S.C. delivering the judgment of the Court said:

”The judgment of the High Court in suit AB/24/55, including the order for costs, is set aside and the case is remitted to the High Court for re-trial. The costs of the proceedings in the High Court will abide the result of the retrial.”

The Supreme Court judgment in suit No. AB/24/55 numbered SC. 269/64 in that court and the High Court judgment in AB/29/55 seem to have each constituted estoppel per rem judicatam.

By the judgment in SC.269/64, the present respondent is estopped from parading himself as having obtained a grant of declaration of title as against the appellants herein from the High Court in suit No. AB/24/55 and by the judgment in suit No. AB/29/55 the appellant herein is estopped from prosecuting a claim for declaration of title against the respondent.

This appears to be estoppel against estoppel and since the estoppel created by the judgment in SC. 269/64 totally destroys the basis of the estoppel created by the judgment in suit No. AB/29/55 the whole subject matter in dispute is set at large.

I have not been able to find any authority decided for this proposition but the doctrine of res judicata and issue estoppel itself provides sufficient authority. It has been said by Lord Coke (See Co. Litt. 35 2b) and the statement has been repeated in books of authority, that “estoppel against estoppel doth put the matter at large.” See Vol. 16 Halsbury Laws of England 4th Ed. paras. 1564 and 1598. See Dixon v. Mennaway & Co. (1900) 1 Ch. 833 at 840.

With regard to the appellants’ contention that the judgment in suit AB/29/55 is a nullity because the judgment in suit AB/24/55 on which it was based has been set aside by the Supreme Court, plausible as it is, it is not the law. I would rather regard the situation as one of estoppel against estoppel. A judgment which would be final if it resulted from judicial decision after a contest is not prevented from being so by the fact that it was obtained by consent or default or as a result of admissions, provided the party against whom it is set up was under no disability; but the efficacy of a judgment so obtained is somewhat strictly limited.

See Vol. 16 Halsbury Laws of England 4th Ed. paras. 1520, 1533, 1541.

See New Brunswick Rly. Co. v. British and French Trust Corporation Ltd. (1939) A.C. 1; (1938) 4 All E.R. 747 H.L.

What does the doctrine of res judicata involve

A judgment inter partes or in personam raises an estoppel only against the parties to the proceedings in which it is given and their privies; (1) privies in blood, (2) privies in law; and (3) privies in estate. As against all other parties, it is res inter alios acta, and with certain exceptions, although conclusive of the facts that the judgment was obtained and of its terms, is not admissible evidence of the facts established by it.

Where res judicata is pleaded by way of estoppel to an entire cause of action, as in this case, rather than to a single matter in issue, it amounts to an allegation that the whole legal rights and obligations of the parties are concluded by the earlier judgment, which may have involved the determination of questions of law as well as findings of fact [Collier v. Walters (1873) LR 17 Eq 252; Badar Bee v. Habib 15 Merican Noordin (1909) A.C. 615 P.C.] To decide what questions of law and fact were determined in the earlier judgment, the court is entitled to look at the judge’s reasons for his decision and his notes of evidence, and is not restricted to the record. Even though the judgment was pleadable by way of estoppel it is perhaps not strictly correct to regard its determination of legal rights as a question of estoppel. The parties are estopped by the findings of fact in the judgment. The facts must appear from the judgment as delivered to be the ground on which it was based. As respects the determination of questions of law, the true view seems to be that the parties’ legal rights are such as they have been determined to be by the judgment of a competent court. See Vol. 16 Halsbury Laws of England 4th Ed. 25 para. 1527.

It is observed that the judgment in AB/29/55 was a judgment in favour of the defendant (i.e. the plaintiffs’ claim was dismissed). It is well settled that a judgment in favour of the defendant is not always as decisive in his favour on the points in issue as a judgment for a plaintiff would be despite the fact that it is equally conclusive of the claim brought. The burden is on the defendant to show that the judgment relied on was obtained upon grounds or in circumstances which afford him a defence to the subsequent action. Isaacs & Sons v. Salbstein (1916) 2 K.B. 139 at 149 C.A.

This is very much so in claims for declaration of title to land which fail not because the defendant established his ownership to the land in dispute but because the plaintiff was unable to adduce sufficient evidence to establish his entitlement to the declaration. Such dismissal decrees no title to the defendants. See Okefor & Ors. v. Idigo 11/& Ors. SC. 65/1982 delivered on 1st June, 1984 (yet unreported) and the defendant cannot set up the judgment to prove or establish his claim for declaration of title to the same piece of land in subsequent actions before the court. The defendant is not relieved of the duty to prove his claim relying on the strength of his own case and not on the weakness of the defendant’s case. See Kodilinye v. Odu 2 WACA 336. In Okafor & Ors. v. Idigo 11/& Ors. (supra) (yet unreported). Obaseki, J.S.C. said at p.30 of his lead judgment:

“A claim for a declaration of title does not succeed by the proof of the fact that one party, the defendant had lost in his bid for a declaration of title to the same land before a court of competent jurisdiction. It has to be established by credible cogent and overwhelming evidence that the party seeking the declaration has exercised complete unchallenged dominion over the entire area of land claimed for a long time before the court can be persuaded to grant the declaration.”

With the utmost respect, therefore, the learned Justice of the Court of Appeal, Kazeem, J.CA erred when he said:

“Having regard to all the circumstances of this case, I am satisfied that the respondents are estopped from contesting the issue of title to the land in dispute which they lost in suit No. AB/29/55, the judgment of which is still valid and subsisting. This ground of appeal therefore succeeds and I think it is sufficient to dispose of the appeal.”

For the above reasons and the reasons so ably set out by my learned brother, Bello, J.S.C. in his judgment, I too will allow the appeal and I hereby allow the appeal, set aside the decision of the Court of Appeal together with the order as to costs and restore the judgment of the High Court, Beckley, J. I also endorse the order as to costs in this Court and in the Court of Appeal made by my learned brother, Bello, J.S.C.

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SC.116/1983