Chief Busari Adepoju Akande V. Alhaja Hunmuani Alaga (1988)
LawGlobal-Hub Lead Judgment Report
ESO, J.S.C.
This appeal has been lodged against the decision of the Court of Appeal sitting at Ibadan. The Court dismissed the judgment of the High Court Ibadan where the claim was for-
(i) declaration of title to a piece of land at Ibuko area of Ibadan:
(ii) injunction restraining the defendant, his agents and privies from committing any act of trespass on the land.
The Court of Appeal dismissed the appeal against the judgment of the High Court and the Defendant who has lost in the two courts, has now appealed to this Court. The Plaintiff’s claim was one of a straight-forward conveyance from the Fadiwin Family who she claimed originally owned the land while the Defendant’s claim was that he got his title from two sources – One portion from Ilaji Family (indeed he discovered that the Ilaji Family sold more than they had to him hence he went to the owners of the excess) the other portion (that is the portion by Ilaji Family which Ilaji did not own) he got from Odetunde Family.
The defendant relied upon previous litigation on the land in dispute.
They are-
- Suit No. 1/244/57: Bamigbade & Anor. v. Lawani Fadiwin Fagbenro.
I think the claim in regard to this previous litigation is well put in the Brief filed by the Defendant/Appellant. It was that in the suit the predecessors of the present Defendant/Appellant were the Plaintiffs. They took action against the Fadiwin Family that is the predecessors in title of the present Plaintiff/Respondent. The Judge in that case (Doherty, J.) pointed out that there was an earlier case in which Fadiwin had sued one Suberu Alake and Raji (of Ilaji Family). That suit, Doherty, J. said ended in the Lieutenant Governor’s Court. According to Doherty, J. the land in dispute in that earlier case was awarded to the Fadiwin Family and that all the courts in that earlier case, and that must have included the Lieutenant Governor’s Court, unanimously held that the old course of the Ogunpa Stream was the boundary between Fadiwin Family and Ilaji Family.
The Defendant has submitted that the land in dispute in the present action is on the Ilaji Family side of that boundary and afortiori, the Defendant relied on estoppel that is the action, 1/244/57, aforesaid, has estopped the Plaintiff from disputing the title of the Defendant whose title was derived from the Ilaji Family.
The other case relied upon by the Defendant/Appellant was
- Suit No. 1/145/68: Akande v. Lamidi Fadiwin Fagbenro. An action for trespass. It was brought by the present Defendant against the Fadiwin Family. Be it noted that the present Plaintiff/Respondent claimed title from Fadiwin Family. The claim was that having purchased the land from Ilaji Family, the Fadiwin Family were and the Appellant claim in this appeal was that Fakayode, C. J. who tried the case pointed out that land in dispute is enclosed by the old and new courses of the Ogunpa Stream and that the original owners were the Odetunde Family.
However at the trial it was necessary and both parties agreed that the Court should visit the locus in quo. During that visit, one man Suberu Akana Oke who claimed to be a member of the Ilaji Family volunteered to assist the Court by pointing out the area of the land in dispute. The Court later took the evidence of this man though there was strong opposition from the learned Counsel for the Defendant. The gist of his evidence was that the Defendant in his surveyed plan included land which the Ilaji Family never owned nor sold to him and which in fact belonged to the Plaintiff. According to the record of proceedings this witness was cross-examined at length but the Judge in accepting the evidence noted that the witness was not shaken in his testimony.
What is more, the witness told the court that the land in dispute in the case his family lost to Fadiwin Family was the land which was sold to the Plaintiff.
On res judicata, that is in regard to the two cases, I had earlier listed as being relied upon for estoppel by the Defendant, the learned trial Judge said he found it to be the true position when he visited the locus that Fadiwin Family appeared to have attempted to claim more than the award given them by the Doherty’s, J. decision and the Judge in that case was right in holding that the matter was res judicata in that case. But the learned trial Judge went on and asked himself a pertinent question. He asked-
“Am I therefore to accept counsel’s submission that on the basis of Ex. M and M1 in the present case, the principle of res judicata applies having regard to the fact that the present plaintiff was never made a party to the action and the land in dispute before me is not exactly the same as the land in dispute before Doherty,
He answered the question after examining the principles laid down in Chief Y. Abiodun v. Chief D. Fasanya (1974) 11 SC. 61-78 and said –
“Applying these principles to the case before me, I find that in Exhibit M1 incorporating the proceedings and the decision of Doherty, J. in Suit No. 138/49 between Fadiwin v. Suberu Alake & Another, the decision was in favour of Fadiwin Family against Suberu Alake and Raji Adefulu so that the defendant in this case is stopped from denying the issue. Similarly, the defendants in the same suit i.e. Lawani Fadiwin Fagbenro, Raji Fadiwin Fagbenro, Fasasi Fadiwin Fagbenro and Abimbola Fadiwin Fagbenro no matter how “styled or mis-styled” in the suit, are equally estopped from further litigation on the issue. In the words of Doherty, J., “If Fadiwin, their father and predecessor in title was dissatisfied with the judgment given in the former action on the ground that it awarded him less than he was claiming, he ALSO ought to have appealed against the judgment.”
Mr. Ogunwole, learned Counsel, for the defendant has urged upon me not to consider this judgment of Doherty, J. in favour of the plaintiff because it was not tendered before the Court. It was tendered but rejected on Counsel’s error. But in Exhibit M which was tendered by the defendant, the same “Judgment” was copiously cited before me and surely the question of speculating upon it does not arise. The case of Kofi Gbajoma v. Ogun Gberebi (1961) 1 All N.L.R. at page 853 becomes irrelevant.”
In regard to the other case that is 1/145/68 before Fakayode, J. the learned trial Judge rejected the plea of res judicata.
As the parties were not the same in so far as Suit 1/145/68 was concerned, the learned trial Judge refused to accept it as a case of res judicata.
He went on-
“What is relevant however is the evidence of the Surveyor Mr. Laniyonu on the Plan annexed to Exhibit “A” which is the disputed land to the effect that it is a small portion of the plan Exhibit “D” (i.e. Exhibit “G” in 1/145/68). There is surprisingly no evidence that even in 1960, the present plaintiff was ever made a party to the action despite Exhibit “B” which the defendant admitted having received as pleaded in paragraph 6 of the Statement of Defence”.
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“Where the plaintiff traces his title directly to one whose title to ownership has been established, it is not necessary that he should prove such acts of ownership. If title has been so established, then the onus is upon the defendant to show that his own possession is of such a nature as to oust that of the original owner.”
He gave judgment for the plaintiff who is now the Respondent in this appeal.
In the Court of Appeal, Omololu-Thomas, J.C.A. after a most thorough and exhaustive examination of all the facts and the issues, was of the opinion that there was sufficient evidence, even apart from that volunteered evidence of Suberu Akano Ake, to sustain the decision in favour of the Defendant. He said-
“After having expunged from the record all the references to the evidence of Suberu Akano Ake (the man who emerged at the locus in quo to volunteer evidence) I have given serious consideration to all the unexpunged evidence on the Respondent’s case and in relation to the decision of the trial Judge. On the basis of all the evidence before that court, the decision which the trial Judge had reached (excluding the evidence of that witness) can be sustained by the evidence which had been established and the facts accepted on the issues raised.
The trial Judge decided correctly on the issue of res judicata and estoppel. He was obviously aware of the fact that the onus lied on the respondent to satisfy the court on preponderant evidence that she was entitled to judgment and on the strength of her own case and not on the weakness of her opponent’s case. He was satisfied that the Respondent had proved her case. In his decision he was relying on acts of ownership in the manner required to establish exclusive ownership in terms of Ekpo v. Ita 11 N.L.R. 68 at 69. He also appeared to have correctly applied
from the facts before him the principle enunciated in Thomas v. Holder (1946) 12 W.A.C.A. 240 at 255, the Respondent having traced her title to her predecessor’s whose title to ownership had
been established, he found that the Appellant had failed to show, and correctly in my view, that their own possession was of such a nature as to oust that of the original owners.
His findings on the whole and conclusions, excluding the inadmissible evidence and conclusions relating thereto, are justifiable by the evidence. He had earlier properly reviewed the evidence of the witnesses, the authorities which are opposite to the issues before him, and on the totality of the evidence, he correctly accepted the respondent’s evidence that she bought the disputed land for valuable consideration in 1955 bona fide, and on the genuine and natural belief that the vendors who are members of Fadiwin Family were legal owners of the land, and also that she was a bona fide purchaser for value who had consistently left no stone unturned to evidence her positive acts of ownership.
In view of the fact that there are preponderant legal evidence to sustain the conclusions and the decision of the trial Judge all the grounds of appeal fail.”
In this Court Mr. E. O. Sofunde dwelt most particularly on that portion of Doherty, J.’s judgment, which I did earlier refer to, showing the land awarded to the Fadiwin Family. The plan of that land which was Exhibit B in that Judgment. [The Judgment aforesaid was tendered as Exh. M1 in this case] was tendered before us and we accepted it as Ex. SC 1.
Mr. Sofunde’s strenuous contentions was that the judgment of Exh. M1 and the Lt. Governor’s judgment Exh. 4 had constituted estoppel as to the boundaries of the land in dispute. And so the real question in this appeal resolves itself with the nature of action before the Lt. Governor and also before the trial Court in the instant case.
There is no doubt that the claim before the Lieutenant Governor was one in trespass. It was
“a right to restrain the defendant from trespassing into the Plaintiff’s farmland ….”
Before Doherty J. the claim was for –
“N200.00 as damages for trespass committed on plaintiff land…………..”
Of course, the instant claim was for Declaration and Injunction. The decision in the trespass action cannot be a res which had been judicata in a subsequent action for declaration of title. That is elementary. There could be issue estoppel however if title was in issue. But did the Lieutenant Governor determine the extent of the land of the Respondents predecessor in title For that is the next question if the plea of res judicata would not avail the Appellant. Let us re-examine the content of the decisions of the Lieutenant Governor and Doherty J. I could hardly do better than the indepth analysis given to these decisions by Omololu-Thomas, J.C.A. He said and I am in full agreement.
“The next complaint in ground 3(a) is with reference to the judgments and some other exhibits. The error and mis-direction complained of are with particular reference to the finding that –
“It is clear from the decision of Doherty, J. that in Fadiwin v. Suberu Alake and Another title to the land in dispute was awarded to the plaintiff/Respondent, Fadiwin.”
The submission of learned Counsel for the appellant was that the decision was only in respect of an injunction and that the question of title did not arise, and that “title to the land in dispute was not awarded to the plaintiff.”
This is clearly a misconception and a mis-interpretation of the judgment of the trial Judge. He was, here, and as quoted above under Ground 2(a), talking about the incorporation in Exhibit M1 of the proceedings in suit No. 138/49 between Fadiwin v. Suberu Alake & Anor., the decision, in which case, and not in Doherty’s judgment itself, was in favour of the plaintiff/respondent in that case, Fadiwin. This is clearly borne out by the record. He did not say that from the decision of Doherty, J. that in Fadiwin v. Suberu Alake & Anor. title was awarded to the plaintiff/respondent, Fadiwin, as quoted out of con, because Doherty, J. in fact never decided title in that suit. He merely said in Ex. “M” that question of ownership or title to the land in dispute was res judicata (referring to the decision in the 1949 suit quoted in Ex. “M”).”
Though res judicata had not been created by the judgment of Doherty, J. the issue of title would seem to have been settled in favour of Fadiwin in the case before the Lieutenant Governor who held –
“It has’ been held as a fact that the old course of the Ogunpa stream is the boundary between the parties to this suit and I am not prepared to disturb this finding of fact.”
This must ordinarily operate as issue estoppel in regard to the boundary between the parties to the suit. Now in this Court, the principal issue raised was one of res judicata created by the two judgments. It is not in dispute that the Plaintiff was not a party to either case. There is indeed no problem whatsoever about the latter suit 1/145/68 which was before Fakayode, J. The parties therein were not the same parties in the present suit. It is in regard to the case before Doherty, J. that any problem could arise. The predecessors in title of the present parties were the parties therein.
But the main prop of the Appellant’s case is not the case before Doherty, J. itself. It was the case which was decided in the Court of Lieutenant Governor and which was referred to by Doherty, J. that was in fact relied upon. That was when the issue estoppel about boundary between the predecessors in title of the present parties could arise.
And that case before the Lieutenant Governor was not pleaded in this case. Only the case before Doherty, J. which made reference to it that was pleaded. The decision of the Lieutenant Governor would therefore not affect the Plaintiff if only for the simple reason that it was not pleaded by the Defendant.
So, what we have to examine is how much effect the Doherty, J. judgment would have on this present case. The case before Doherty, J. was instituted in 1957 – 1/244/57. Exhibit MI shows it was mentioned before Doherty, J. on 17th March 1959.
But the plaintiff had acquired her interest on 11th August 1955. Paragraph 4 of the Statement of Claim reads –
“Under and by virtue of a deed of conveyance dated 11th day of August, 1955 made between (1) Lawani Alao Mogaji of Fadiwin Family (2) Raji Aremu Fadiwln (3) Fasasi Akanni Fadiwin (4) Abimbola Adio Fadiwin and the plaintiff and registered as No. 49 at page 49 in volume 118 of the Lands Registry in the office at Ibadan the land in dispute was sold for valuable consideration and conveyed to the Plaintiff by the said Lawani Alao Fadiwin, Raji Aremu Fadiwin, Fasasi Akanni Fadiwin and Abimbola Adio Fadiwin for themselves and on behalf of the entire Fadiwin Family.”
And so she had title two years before the suit was filed before Doherty, J. not against her but her predecessor in title. There is nothing to show, or indeed nothing has been suggested that the Plaintiff knew about that suit. She was not a privy to the suit. She knew nothing about it. She could not be held to stand by while the decision against her predecessor in title was given for or against that predecessor. The decision was after a sale for value to her and could not be used against her as res judicata in a litigation she became involved in after.
In my view, the suit before Doherty. J. would not affect the fortune of this case just as the other case before Fakayode. J. would not, though, for a different reason.
What is left It is of course her evidence in court. The Court of Appeal held that there was sufficient evidence after disregarding the volunteered evidence of Suberu Akana Ake. It is in this regard that the exposition of the law by the Court of Appeal on Ekpo v. Ita; Thomas v. Holder is relevant and also the findings of the fact by the Judge as confirmed by the Court of Appeal as regards acts of ownership exercised by the Respondent thus presenting concurrent findings of fact of two courts on the facts.
Had the case before the Lieutenant Governor to be applicable one would have been obliged to ask what was meant by the old course of Ogunpa River. Exhibit SC.1 which was admitted in evidence at the hearing before us was an exhibit tendered in the case before Doherty, J. and not that used in the case before the Lieutenant Governor.
Ogunpa River is a very long River and one would need evidence to identify the land which was in evidence before the Lieutenant Governor had it been necessary to apply that judgment as res judicata.
On the whole the appeal lacks total merit and it fails. It is dismissed with N500.00 costs to the Respondent.
SC.74/1985
