Asani Balogun & Ors. v. Alimi Agboola (1974)
LawGlobal-Hub Lead Judgment Report
B. A. COKER, J.S.C.
This appeal is sequel to proceedings initiated in the High Court, Ibadan, by one Yesufu Mogaji Oshundina as plaintiff against one James Fadokun Fakorede. On the writ as filed, the plaintiff sued “for himself and on behalf of the Ebo Olobi Family”. The writ was endorsed as follows:
”The plaintiffs are the owner of all that piece or parcel of land situate lying and being at Ibadan off Abeokuta Road and more accurately delineated on a plan to be filed with the statement of claim in this action and an injunction restraining the said defendants, their servants and agents from entering the said land without the permission of the plaintiffs.”
In the course of the proceedings, and by virtue of Orders of Court duly made in connection, the following events took place:
(i) Baba Lawani, alias Lawani Molade Akanmu, and Raji Offa were added as plaintiffs “for themselves and as representatives of the other occupiers of the land in dispute”.
(ii) Yesufu Mogaji Oshundina, the original plaintiff died and Asani Balogun (now respondent before us) was substituted for him; and
(iii) The original defendant, James Fadokun Fakorede, died before the hearing of the suit and one Raji Fakorede was substituted for him.
After the judgment in the High Court, and during the pendency of the appeal in the Western State Court of Appeal, Raji Kakorede himself died and Alimi Agboola (now appellant before us) was substituted for him as the defendant to the action. In this judgment, we would characterise the parties as plaintiffs and defendants according to the designation in the High Court, Ibadan. The plaintiffs filed a statement of claim by which they aver that the plaintiffs’ family comprise of the descendants of the late Chief Osi Oshundina who originally owned the land in dispute and surrounding lands and whose children, like himself, exercised various acts of ownership and possession over the said land by
(i) Farming;
(ii) granting of occupational rights to various persons;
(iii) granting of lands to the Roman Catholic Mission; and (iv) making surveys of the lands in dispute.
The defendants also filed their own pleadings by which they denied that the plaintiffs ever exercised any acts of ownership and/or possession over the lands in dispute and, in particular, by paragraph 7 of their statement of defence, the defendants aver as follows:
“7. The defendant will establish at the trial that
(a) It is the defendant and his predecessors in title in dispute and that the existing Catholic School is on the site of the ruins of defendant’s ancient village;
(b) The portion of the land averred by the plaintiffs as having been leased to the Roman Catholics by the 1st plaintiff is part of the land over which the defendant had taken judgment against Amao Fagbemi, who the plaintiffs averred did execute a lease in favour of the Roman Catholics; and who is one of those now represented by the first plaintiff.”
The parties thereafter called witnesses in support of their pleadings, the plaintiffs calling a total of six and the defendants at total of four witnesses. A surveyor, Abolade Coker, was called as witness by both parties and he produced in evidence the plaintiffs’ plan in this case Exhibit A, and also identified the plan prepared by him and used by the defendants in a previous case against a member of the plaintiffs’ family, one Amao Fagbemi as defendant (Le. Suit No. 11263/57 in the High Court, Ibadan), Exhibit G. It was part of the plaintiffs’ case that the grants to the several settlers on their lands were out and out grants and that the land which the defendants claim to belong to them was indeed granted to them by the plaintiffs’ ancestors. The various grants were, according to the plaintiffs for farming purposes but the plaintiffs’ witnesses conceded that some of the grantees had even built houses on the said lands granted to them. One of such tenants was the 4th plaintiffs’ witness, Oko Willie, alias Oko Williams, and he testified to having lived on the land with Amao Fagbemi a member of the plaintiffs’ family as far back as 1927 and that, in 1947, he himself built a farmhouse on the land in dispute. The plaintiffs also called two of their boundarymen to give evidence on their behalf. The defendants also gave evidence in support of their case and produced the following documents:
(a) Judgment in Suit No. 1/263/57-Fadokun Fakorede and Family VS. Amao Fagbemi in the High Court, Ibadan-Exhibit E.
(b) Judgment of the Federal Supreme Court on appeal in the same case, Le. FSC.222/61, decided on the 25th March, 1963-Exhibit F; and
(c) The plan used in that case by the plaintiffs therein, No.CK403A/57-Exhibit G.
After the production of these documents, the defendants successfully moved the court for an amendment of their statement of defence by adding to the existing paragraph 7 (set out before) the following:
“7(c) The defendants plead that the plaintiffs are estopped per rem judicatam by virtue of the judgment in Suit 1/263/57 between Fadokun Fakorede (for himself and on behalf of Ebo-Olobi Family) and Amao Fagbemi delivered on 16th November, 1959 in this Honourable Court.
(d) The defendants in the alternative to paragraph 7(c) further plead that the plaintiffs are estopped from relitigating or re-opening the issues as to title of Ebo-Olobi family to the land in dispute and also the issue of the boundary between the plaintiffs and the defendants’ land, the plaintiffs having stood by in the said case.”
The defendants gave further evidence and called other witnesses in support of their pleadings and indeed claimed that the members of the plaintiffs’ family, including Oko Willie, were all aware of the case in Exhibit E and indeed attended the court hearings.
The learned trial judge in the course of a reserved judgment gave in favour of the plaintiffs. With respect to the evidence before him, he commented as follows:-
“Upon an overall consideration of the case, I accept the evidence of the 2nd, 3rd, 4th, 5th and 6th plaintiffs’ witnesses. I accept and find as a fact that the land in dispute formed pan of the land which originally belonged to first plaintiff’s ancestor Osundina and that since then the Osundina family have performed various acts of ownership by the witnesses’ for the plaintiff. I do not believe that the defendants ancestors were settled on the land in dispute as testified to by the defendant or that his family performed any acts of ownership on the land in dispute. I hold and find as a fact that the boundary of 1st plaintiff’s contention to the contrary is untrue.”
In the course of the same judgment, the learned trial judge considered the issues raised by the defendants by virtue of the amendment to the statement of defence, that is:
(i) Estoppel per rem judicatam by virtue of the judgment in Exhibit E; and
(ii) Estoppel by conduct by virtue of the awareness of the plaintiffs of Exhibit E and their inaction at seeing their battle being fought for them by the defendant in that case, Amao Fagbemi.
The learned trial judge concluded with respect to estoppel by res judicata, and this is supported by the judgment of the Federal Supreme Court, Exhibit F, that as parties were not the same in the two cases the plea of estoppel per rem judicatam was not made out by the defendants. Concerning estoppel by conduct and on the issue the learned trial judge observed as follows:
“I also do not believe that the plaintiffs were guilty of any standing by, there being no evidence or proof before me that Amao Fagbemi was in the previous suit ‘championing their cause’; rather he was defending himself against a claim brought against him personally. The doctrine of standing by should not be overstretched to cover cases where there is no evidence as in this suit was cognisant that his interest was being championed by a party in record, chooses to abstain, waiting to reap the benefit of the proceedings. The necessary ingredients to found a plea of standing by as raised by the defence in this case also fails.”
Before concluding his judgment and in expressing the results of his overall appraisal of the case, the learned trial judge commented thus on the evidence given by the defendants:
“The defence has failed to establish to my satisfaction any evidence of their use of the land in dispute. On the contrary, the plaintiff has established long and numerous acts of ownership on the land in dispute. I am satisfied that the plaintiff’s withness spoke the truth……………………………………………..
The learned trial judge, as stated before, thereafter gave judgment in favour of the plaintiffs. The defendants appealed to the Western State Court of Appeal against that judgment complaining in substance that the learned trial judge wrongly failed to draw the inference that the plaintiffs were estopped by conduct from re-litigating the present action in view of Exhibit E and Exhibit F. The evidence and, as against the finding of the learned trial judge, and after dissecting the evidence of traditional history as given by the plaintiffs, refeited to the well known case of Ekpo v. Ita (1933) 11 N.L.R. 68, and observed as follows:
“It is our view that the evidence of acts of ownership given by our respondents does not satisfy the rule in Ekpo’s case. The acts are neither numerous nor positive. Taking the evidence of traditional history and acts of ownership together, no sufficiently strong case was made to entitle the respondents to a declaration of title on the strength of their own case, and the case ought to have been dismissed.”
After saying this, the Court of Appeal reminded itself of its limitations in dealing with issues of facts, then justified the course it had taken and embarked upon a rather long disquisition and dissertation on the evidence given by the plaintiffs’ witnesses in order to support its own views on the burden of proof.
Before us, learned counsel for the defendant was unable to support this exercise by the Court of Appeal and learned counsel for the plaintiffs submitted that the learned trial judge had justifiably performed his duties in an area which the law specially entrusts to his care. The ascription of probative values to evidence is a matter primarily for the court of trial and it is not the business of a court of appeal to substitute its own views of undisputed facts for the views of the trial court. Interference by a court of appeal with respect to issues of fact is by law confined within very narrow and limited dimensions and we are clearly of the view in this case that the Western State Court of Appeal took a mistaken view of the law when it embarked, as it did, on a fresh appraisal of the evidence of witnesses to whom the learned trial judge had himself listened and whom he had seen face to face when they (the court of appeal) were dealing only with the cold sullen print of the records before them. We have no hesitation in restoring the findings of fact of the learned trial judge.
The Western State Court of Appeal held, contrary to the findings of the learned trial judge, that the plaintiffs were estopped by their conduct to relitigate this case on this same land with the defendants in virtue of Exhibits E, F and G. It should be observed that the question whether or not a whole people were standing by when someone else is fighting out their case for them is essentially a matter of fact. Evidence was given before the learned trial judge by the defence to suggest the inference that the entire Oshundina family knew about the case in Exhibit E and this issue, the learned trial judge obviously rejected the evidence of the defence of this point What is more important however is the decision of the learned trial judge that there was no evidence before him that in Exhibit E the defendant therein, Amao Fagbemi, was in fact championing a cause of the Oshundina Family. That action was an action for declaration of title damages for trespass and injunction against the defendant over this same land. The action was heard in the High Court, Ibadan, where that Court took the view in which the present defendants had manifestly persisted that the defendant was defending the action on behalf of the Fagbemi-Oshundina Family and ordered an injunction against the whole of that family. By Exhibit F, the Federal Supreme Court pointed out that the judge in that case was wrong; that the defendant in Exhibit E was sued personally and defended in the same capacity and that the Order of Injunction made by the trial court was modified accordingly. Surely on this basis there is no ground whatsoever to think that the defendant was championing anybody’s cause, let alone the cause of a whole people who were found by the Federal Supreme Court in Exhibit F to have been unconcerned with the proceedings.
Learned counsel for the plaintiffs submitted before us that the Western State Court of Appeal had no materials before it by virtue of which it could rightly reverse the decision of the learned trial judge and on this point learned counsel for the defendants was unable before us to support the decision of the Court of Appeal.
The defendants clearly sought to bring in by the back door what they have always failed to accomplish in the open; oblivious of Exhibit F they pleaded paragraph 7 (c) of their amended statement of defence and, dubious of their success in that respect, they pleaded paragraph 7(d) in the alternative. We think that on a dispassionate reading of the judgment of the learned trial judge, he had come to the right conclusion on this point in all circumstances of the case.
The result is that the appeal of the plaintiffs succeeds on the two grounds which were canvassed before us on their behalf. The appeal is allowed and the judgment of the Western State Court of Appeal, including the order for costs made in that court in these proceedings, is set aside. We order that the judgment of the learned trial judge in the High Court, Ibadan, together with his order for costs, be restored. This shall be the judgment of the Court. The defendants shall pay to the plaintiffs the costs of these proceedings fixed in this Court at 177 and in the Court of Appeal at N140.
Other Citation: (1974) LCN/1886(SC)
