Chief (Prince) R. A. Olusi V. Alhaji Saidi Bishi & Ors (2016)
LawGlobal-Hub Lead Judgment Report
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
This is appeal against the judgment of IPAYE J, sitting at the Ikeja Judicial Division of the High Court of Lagos State, delivered on 17th December, 2013.
By a writ of Summons dated 20th August, 2010, the Respondents/claimants claimed the following reliefs:
(1) “A DECLARATION that the claimants are the bona-fide owners of the property now municipally described as No. 3 Idiomo Street/No. 4, Egbe Street, Isale-Eko in the Lagos State of Nigeria by virtue of the Deed of Conveyance dated the 3rd day of June, 1898 registered as No. 7 at page 13 in Volume 33 in the Register of Deeds kept in the Lagos State Lands Registry, Lagos.
(2) AN ORDER OF PERPETUAL INJUNCTION restraining the Defendant whether by himself, servants, agents or privies from meddling or seeking to interfere in the property known as No. 3 Idiomo Street/No 4, Egbe Street, Isale-Eko in Lagos State Nigeria particularly the shop thereon abutting Egbe Street, Isale-Eko.
?(3)The sum of N500, 000.00 (Five Hundred Thousand Naira) being general damages for trespass committed on the property by the defendant.
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The Respondent instituted this action in a representative capacity but only the 1st claimant gave evidence during the trial and judgment was delivered in favour of the Respondents.
The Appellant being dissatisfied with the judgment of the lower Court appealed to this Court vide a Notice of Appeal dated 24th February, 2014 and filed on 25th February, 2014.
The Appellant formulated four (4) issues for determination as follows:
(a) “Whether the Learned trial Judge was correct in holding that the Respondents have traced their root of title to the purchase made by their grandfather and that they have gone further to trace and establish the title of their grandfather?s vendor.
(b) Whether the Learned trial Judge was correct in holding the identity of the land in dispute was admitted by the Appellant.
(c) Whether the Learned trial Judge was correct on the true position of the application of the doctrine of Estoppel per rem judicatam as regards the decision of the Registrar of titles Exhibit ?11?.
(d) Whether the Learned trial Judge was correct in holding that the Respondents have established a better title to the
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subject property and are thus entitled to the judgment of the Court.”
The Appellant brief was settled by Alaba Okupe M. A. of Okupe & Co. and same was dated 7th, July, 2014 and filed on 8th August, 2014 but deemed 22nd day of June, 2015.
The Respondent’s brief though filed on 19th January, 2016 was deemed to be properly filed on 8th February, 2016. It was settled by Bola Caleb (Miss) of Aladejobi & Aladejobi & Co., wherein a sole issue was submitted for determination thus:
i. “Whether the Respondent established a latter title to the subject matter of this appeal before judgment was delivered in their favour.?
I have carefully considered the issues formulated by the parties as well as the argument thereon. Although Appellant?s counsel identified four issues, he had argued issues a, b and d together while he argued issue (c) distinctly. On the other hand, Respondents’ counsel seemingly responded to issues (a), (b) and (d) only. The resolution of this appeal shall be done as per the mode in which arguments were proffered by counsel, hence under two heading.
ISSUE ONE (A, B & D)
Appellant in his brief
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referred to the pleadings of the parties and the following cases to the effect that pleadings do not constitute evidence and that parties are bound by their pleadings. See ADETOUN OLADEJI (NIG.) LTD. V. NIGERIA BREWERIES PLC (2007) 3 MJSC; IFETA v. SHELL PETROLEUM DEV. CO. (NIG) LTD. (2006) 7 MJSC 121 AT 129 PARAS C-E (SC); ARABAMBI & ANOR v. ADVANCED BEVERAGES IND. LTD (2006) 3 MJSC 61 AT 89G-90B (SC); EMEGOKWUE v. OKADIGBO (1973) 1 NMLR 192 AT 195; OWNERS OF M/V GONGOLA HOPE v. SMURFIT CASES NIG LTD (2007) 9 MJSC 90 AT 107 A-B; NWOGO 7 ORS v. NJOKU & 3 ORS [1990] 2 NWLR (Pt.140) 570 AT 581 PARAS B-D; EHIMARE & ANOR v. EMHONYON (1985) 1 NWLR (Pt.2) 117 AT 183; EZEMBA v. IBENEME & ANOR (2004) 10 MJSC 54 AT 79; MINI LODGE LTD. & ANOR v. NGEI & ANOR [2009] 12 MJSC (PT. 1) 56 AT 72 PARAS A-G; EZEIGWE v. AWUDU (2008) 8 MJSC 61 AT 75: BELLO v. EWEKA (1981) 1 SC 101 AT 102; DIM v. ENEMUO [2009] 4 MJSC (Pt. 1) 152 AT 174; UDOFE & 2 ORS v. AQUSISUA & 2 ORS (1973) 1 SC 199 AT 130; NWAVU V. OKOYE (2008) 12 MJSC 28 AT 51 PARAS F-G; IYERE v. B.F & F.M LTD. (2008) 12 MJSC 102 AT 145; MADU v. MADU (2008) 5 MJSC 213 AT 227-228.<br< p=””
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Appellant submitted that the Claimants claiming bona fide title are by virtue of Exhibit “2” which recites the root as a crown Grant to Odunton dated 4th April, 1870 and registered as 36/36/6 Lagos. The Exhibit is a Deed of conveyance by Odunton to Seidu Adelakun in respect of all that piece or parcel of land with the buildings thereon situate at Idunmaibo on Lagos aforesaid and bounded on the North, North East by land of Moleye. Counsel further submits that to consider the ownership of the disputed property, the root of title of same must be established by strong evidence. He citedORLU v. GOGO-ABITE [2010] 1 MJSC (pt. 11).
He also contended that the oral description of the land by the Respondent is contrary to the description in Exhibit ?2?, he referred to OLUBODUN v. LAWAL (2008) VOL 9 MJSC. 1 AT 53 PARAS A-B.
Counsel also contends that there was no survey/composite plan showing that the piece of land in the aforementioned exhibit is the same as No. 3 Idiomo Street and bounded by No 4 Egbe Street and that the Respondent failed to show the clear area of land to which their claim relates. He also contends that the 1st
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Respondent?s oral evidence is at variance with the pleaded exhibit. Therefore, the failure of the Respondent to produce a Survey Plan gives a fatal effect on their claims as a whole. He cited Section 133(11) Evidence Act, 2011; DANTATA & ANOR v. MOHAMMED (2000) 7 NWLR (pt. 664) 176 AT 196 E – 7.
Counsel while submitting on the position of the law that the Appellate Court will not lightly interfere with the findings of facts of a Court of trial, cited the cases of: TSOKWA MOTORS (NIG) LTD v. UNION BANK OF NIG LTD. (1996) 9 NWLR (PT 471) AT 129; CHUKWUEMEKA v. IWERUMOR [1996] 9 NWLR (PT. 472) AT 327; ARE v. IPAYE & ORS [1990] 2 NWLR (pt. 132) 298 AT 300; MBA-EDE v. OKUFO (1990) 2 NWLR pt 135 787.
Counsel further argued that it is the exclusive duty of the trial Court to evaluate evidence as it is at a position where it listens and watches the demeanor of witnesses at the same time, thereby assessing their credibility. Also, it is not the number of witnesses that helps the Court arrive at its decision rather the weight attached to the testimony of the witness. Therefore if the trial Court properly evaluates the evidence, then there would
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be no need for the Appellate Court to reconsider same, however if this is not done by the trial Court, the Appellate Court will have to reappraise same evidence and reverse any findings based on same.
Counsel while enumerating instances where the finding of fact is said to be perverse cited the following cases: MINI LODGE LTD & ANOR v. NGEI & ANOR [2009] 12 MJSC (pt 1) 56 AT 72; MAKINDE & 9 ORS v. AKINWALE & 10 ORS (2000) 2 NWLR (pt. 645) 431 AT 450; ABIDOYE & 4 ORS v. ALAWODE & 4 ORS (2001) 6 NWLR (pt. 709) 463 AT 473; ADEKUNLE v. ADELEYE (1998) 12 NWLR (pt. 579) 613 AT 622 PARAS A-C.
Appellant while listing principles to guide the Appellate Court on complaints of non-evaluation, cited NWOKORO & ANOR v. NWOSU & 5 ORS (1994) 4 NWLR (pt. 337) 172. He went further to submit that the Respondents are asserting succession to the Estate of deceased persons, he also stated the position of the law on whom the estate of a deceased person vests in and he referred to the authorities of Section 2 and 3 of the Administration of Estates Law Cap. A3 Laws of Lagos State (2003) andKOPEK CONSTRUCTION LTD v. EKISOLA (2010) MJSC (pt. 11)
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46 AT 63 PARAS A-D; FASORO v. BEYIOKU [1998] 2 NWLR (pt. 76) 263 AT 274; IFEACHO v. INLAND MED. COY (NIG) (2000) 1 NWLR (pt. 639) 105; OGUNLEYE v. ONI [1990] 2 NWLR (pt 135) 745 AT 774E; OGUNFAOLU & ANOR v. ADEGBITE (1986) 5 NWLR (pt 43) 549.
He finally submitted that the Respondent failed to establish the title to the land in dispute and that the Court can only grant a perpetual injunction at the instance of a Claimant in support of a right known to law or equity. He referred to AFROTEC TECH. SERV. (NIG) v. MIA SONS LTD [2000] 15 NWLR (PT 692) 730.
The Respondents in response on his sole issue for determination submits that the witness “CW1” tendered Exhibit “2”. Counsel further stated the position of the law on evidence that is relevant to the issue in controversy and is not successfully challenged or contradicted is good and should get more probative value, thereby influencing the Court in its determination of cases. He relied on CHABASAYA v. ANRESI [2010] 11 NSCR 123.
Therefore, the Respondents placed oral and documentary evidence before the Court while he stated that the property in issue belonged to the stool of Egbe Chieftaincy
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family, and tendered a Crown grant of which same was tendered by the Respondent. He then submits that from the case of the Appellant at the lower Court, he did not establish any interest over the subject matter of this appeal. He relied on MINI LODGE LTD. & ANOR v NGEI & ANOR (supra), which the appellant previously relied on.
He submitted that they traced their root of title and ownership to that of one Odunton who sold same to Seidu Adelakun. He referred to ADETONA v. ZENITH BANK PLC (2009) 3 NWLR (pt. 1129) 577 AT 5 & 6; to the effect that the Respondents have traced their link to and explained their connection to the said Seidu Adelakun, they are automatic beneficiaries, thus giving them a right to administer same. Counsel further explains how a party arrives at achieving locus standi in a case, and referred to: BM LTD v. WOERMANN LINE (2009) 13 NWLR (pt. 1157) 149; NWOKAFOR v. AGUMADU [2000] 3 NWLR (PT 1129) 638. Counsel while defining locus standi cited: AJAYI v. ADEBIYI (2012) 11 NSCR 6, and then submits that the Respondents as undisputed beneficiaries of the estate of the late Seidu Adelakun has the locus standi to institute the action
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at the lower Court.
Respondent’s counsel while replying on the issue of identity as raised by Appellant referred to the case of OGUN v. AKINYELU (2005) 2 MJSC 92, and submitted that what is expected of the Appellant is to produce a plan showing location and identity of the land, and Exhibit “2” tendered did this and also the address at No 3 Idiomo Street/4 Egbe Street Isale-Eko in Lagos state has also settled this. He submitted that all argument raised by the Appellant goes to no issue as it has been settled by all authorities cited, and therefore urged the Court to resolve this issue in favor of the Respondent.
Counsel submits finally that the Respondent has proved their case before the lower Court and relied on AWOYOOLU v. ARO (2008) 4 MJSC 128: FASORO v. BEYIOKU (1998) 2 NWLR (Pt. 76) 263: ADEKUNLE v. ADELEKE (1998) 12 NWLR (pt 579) 613. He then submits that the lower Court did a proper evaluation before resolving the issues as canvassed.
RESOLUTION
The instant issues revolve around the ownership of No. 3, Idiomo Street/No. 4, Egbe Street, Isale-Eko, Lagos particularly as to whether the Respondent established a better title to the
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land as held by lower Court. Ipso facto, we are faced with the question as to evaluation of evidence tendered and admitted by the trial Court in reaching its conclusion.
Indeed, as the Appellant’s counsel rightly noted, evaluation of evidence is the primary function of the trial Court and this Court will not readily interfere nor disturb the findings of the trial Court, even where it would have reached a distinct conclusion, unless the finding of fact by the trial Court is not based on admitted evidence before the Court or same is perverse. Put differently, it is not within the obligation of this Court as an Appellate Court to substitute its own view with that of the trial Court where the latter?s finding is supportable by evidence on record and is not perverse. See IFETA v. S.P.D.C [2006] 8 NWLR (pt. 983) 585; ORIANWO v. OKENE (2002) 6 SC (PT II) 45; AGBAKOBA v. INEC [2008] 18 NWLR (pt. 1119) 489 SC; HASSAN v. ALIYU (2010) 17 NWLR (PT 1223) 547 SC.
As earlier noted, the suit was commenced by the claimants/Respondents via a Writ of Summons and Statement of claim dated 20th August, 2010 at page 3 of the record. The claimant in paragraphs 4 to 9
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of the statement of claim averred thus:
(4) The Claimants are all members of the Egbe Chieftaincy family.
(5) The Claimants states that by a Deed of Conveyance dated 3rd June, 1998 and registered as No. 7 at page 13 in Volume 33 in the Register of Deeds kept at the Lagos State Land Registry, Lagos Nigeria, the late Seidu Adelakun became seised of the piece of land covered by the said Deed of Conveyance lying along Idiomo Street and bordered on the right by Egbe Street, both in Isale-Eko in the Lagos State of Nigeria. The Deed shall be relied upon at the trial.
(6) The Claimants states that the piece of land being a corner piece had a strip of land serving as its setback and abutting Egbe Street.
(7) The said Seidu Adelakun immediately took possession of the said piece of land conveyed to him, erected a brick structure thereon, and on its setback erected a shop and other plank structures in respect of which he collected rent all through his life.
(8) Upon the demise of the said Seidu Adelakun, ownership in the said property passed on to his three children viz: Mistura, who begat Latifat and Muinat, Aminat who begat Taju and Saidi and
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Mosunmola who begat Kolawole.
(9) The claimants state that the said three children of Seidu Adelakun succeeded to the estate of their late father and thereafter exercised maximum rights of possession and ownership on the entire property vested in their late father.?
Evidence on the above pleadings were elicited through CW1, Alhaji Saidi Bishi, by his statement on oath dated 20th August, 2010 found at page 7 of the record, wherein CW1 essentially testified as per the averments contained in the Claimants/Respondents, Statement of Claim. At page 122 to 124 of the record, after adopting his Witness Statement on Oath, CW1 tendered Exhibit ?2? ? Certified True copy of registered conveyance dated 03/06/1898 between Odunton and Seidu Adelakun – as well as Exhibit ?4? ? Certified copy of a Crown Grant dated 04/04/1870 in favour of Odunton registered as No. 36 at page 36 in Volume 6 of the Register of Deeds. This piece of evidence is predicated on averments contained in the Respondents’ Statement of Claim.
Appellant as Defendant, in his Statement of Defence dated 30th September, 2010 vide paragraph 3a, b, c, d, e
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and 4 averred thus:
?3. With further reference to paragraphs 4; 5; 6; 7; of the Statement of Claim, the Defendant avers as follows:
a) There are four Ruling Houses that make up the Egbe Chieftaincy Family as approved in the Declaration to the Egbe Chieftaincy Title and signed by the then Oba of Lagos, Oba Oyekan II and the then Military Governor of Lagos State.
The said branches are:
ii. OKONU BRANCH
iii. YERU BRANCH
iv. AKILAGUN BRANCH
v. AMORE BRANCH
The Claimants do not belong to any of the above mentioned Four Ruling Houses and as such are not members of the Egbe Chieftaincy Family.
b) The founder/settler of the Egbe Chieftaincy Family landed properties was Prince OLUWO – ALASE, Son of Oba ALAPA of APA a King in the old Awori Kingdom. Apa is a town in the Badagry Division of Lagos.
c) Prince OLUWO-ALASE settled on Egbe Chieftaincy Family landed properties in or around 1704 and he was the first Chief Egbe of Lagos and he begat Seven Children: (i) ORUNMOLU; (ii) OKONU (iii) YERU; (iv) ODUNTON; (v) BAMGBOSE; (vi) AMORE; (vi) AKILAGUN.
d) The piece of land covered by the Deed of Conveyance dated
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3rd June, 1898 and registered as No. 7 at Page 13 in Volume 33 of the Register of Deeds kept at the Lands Registry in the office at Lagos is not the same as the house and landed property now known as No. 3c Idiomo Street/ No 4, Egbe Street, Isale Eko, Lagos. The said Deed of Conveyance does not cover No. 3 Idiomo Street/4, Egbe Street, Isale Eko, Lagos which is one of the bona fide properties of the Egbe Chieftaincy Title.
The first registration of the property situate at 4, Egbe Street, Lagos under Title Certificate NO. L06619 by Alhaja Amudalatu Daudu Ottun & 2 Ors. was successfully objected to by the Egbe Chieftaincy Family as the 2nd set of objectors by a letter dated 9/11/70 as evidenced by a judgment delivered by the Registrar of Titles on 7/4/72. The said property was covered by a CROWN GRANT dated 4/4/1870 and registered as Number 4 at page 36 in Volume 6 at the Lands Registry Lagos.
4. The Defendant avers that late Chief Salau Adisa Disu Okonu III, The Egbe of Lagos did collect rents in respect of the property situate at 3, Idiomo Street/4, Egbe Street, Lagos for and on behalf of Egbe Chieftaincy Family and not by the grace of the
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Claimants.
5. The Defendant denies that he is retaining control of the shop in dispute by applying brute force and threatening Claimants with physical hurt as alleged or at all.”
The testimony of the Appellant/Defendant as DW1 can be found at at pages 125 to 126 of the record. He tendered Exhibits “8-12″ in proof of the ownership of the disputed land and claimed that the property was covered by a Crown Grant dated 4th April , 1870.
While holding that the Respondents are entitled to a declaration of title to the disputed land, the learned trial judge at page 138 of the record made a finding of fact based on the evidence tendered by the parties and held thus:
?… With all due respect, I am persuaded that an unregistered grant as shown on Exhibit 12, cannot defeat a registered crown grant as shown on Exhibit 4 and I so hold. I am further satisfied that Exhibit 4, is a clean and clear copy and states categorically that ?John Hawley Glover, Administrator of the Government of the Island and. Territories of Lagos, having duly investigated the claims set forth by ODUNTON to a piece of land situated at ?Idunmaibo? measuring
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?fifty one feet three inches East Public Street, fifty seven feet West to Lane Forty Five feet North adjoining land of Eshubi, and forty seven feet South Public Street’ do hereby Grant and Assign to the said ODUNTON, his Heirs Executors, Administrators and Assigns forever the above specified piece of land”. Even if this Court accepts the contention of learned silk that Exhibit 12 and 4 are the same, (which I don’t for the dual reasons that not only is Exhibit 12 is (sic) unclear and unreadable, it is not the business of the Court to do cloistered justice by straining to read documents which ought to have been tries (sic) and tested in open Court.) The defendants have failed to show by credible evidence how the original grantee of the parcel of land Odunton transferred title to the defendant and I so hold. It is trite that once a party pleads and traces the root of his title to a particular person or family, he must in addition go further to establish how the person also came to have title vested in him. He must give cogent evidence in proof of his overlord’s title … The claimants herein have traced their root of title to the purchase made by their
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grandfather and they have gone further to trace and establish the title of their grandfather’s vendor and I so hold.
The defendant on the other hand has failed to establish their overlord’s title and I so hold. The defendant has led no evidence to state the grantee of Exhibit 12 and I so hold.
In addition, the claimants by virtue of Exhibit 2 have established convincingly to this Court that the grantee of the Crown Grant i.e. Odunton transferred and alienated his entire interest in the subject property to their grandfather Seidu Adelakun.?
At page 140, the learned trial judge further held:
“This Court is further persuaded, by the testimony of CW1, whom I verily believe as a witness of truth, to the effect that his family has always exercised ownership rights over the property and such acts of ownership include the fact that the grandfather developed same and erected shops and his residence on the parcel of land. That as a branch of the Egbe Chieftaincy Family of Lagos his family consented to the use of the property by the former occupant of the Egbe Chieftaincy Stool Chief Salau Adisa. That on the demise of the former Egbe of Lagos
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Chief Salau Adisa, the new chief being the defendant herein forcefully annexed the property without their consent and license. I am satisfied that the claimants have established a better title to the parcel….”
?From the above reproduced judgment of the lower Court, the learned trial Court indeed articulately evaluated the evidence before it and came to the conclusion that the Respondents have established their case before it. As rightly noted by the learned trial judge, the Respondent traced their root of title to Late Seidu Adelakun, their grandfather who became seised of the disputed property through a Deed of Conveyance dated 3rd June, 1898 registered as No. 7 page 13 in Volume 33 in the Register of Deeds of the Lagos state Land Registry. The conveyance was between Odunton and Seidu Adelakun, and on his death, the ownership passed to his three children, all female – Mistura, Aminat and Mosunmola, who exercised maximum right of possession and ownership before the property devolved on the Respondents, being joint heirs of the three female children of Late Seidu Adelakun.
Furthermore, the Certified True Copy of Crown Grant at page 46 of the Record
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tendered by the Respondents was issued to Odunton who alienated the property to the Respondents? grandfather.
The Appellant’s root of title is merely traceable to the Certified True Copy of a judgment of the Registrar of Titles of 7th April, 1972 in respect of the property. Exhibit “12”, a Certified True Copy of the Crown Grant is not registered. The Appellant’s evidence on record did not tie up even in the Statement on Oath. He failed to establish his root of title and even his overlord’s root of title.
As obvious from the evidence before the trial Court, the only material evidence, which was tendered by the Respondents? in proof of their title, vests the property in Odunton and not any Egbe Chieftaincy family. Exhibit 2 and 4 tendered by the Respondents and admitted by the trial Court was not in any was debunked or challenged by the Appellant. It remains cogent evidence, the basis of which the trial judge held that the Appellant has no cognizable interest in the land. The Appellant has not persuaded us enough with credible evidence to the contrary to warrant an interference with finding and conclusion of the learned trial judge.<br< p=””
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The Supreme Court decision of IDUNDUN v. OKUMAGBA (1976) 9 – 10 SC 227 at 246 – 250 established the criteria for the proof of declaration of title to land to include: (a) by traditional evidence; (b) by documents of title such as conveyance; (c) acts of ownership spanning over a sufficient length of time; (d) by acts of long possession and enjoyment of the land; and (e) proof of possession of connected or adjacent land. The Respondents in the instant appeal were able to prove their title to the disputed land by production of title document vesting the property in the Late Seidu Adelakun through whom they claim. I am therefore satisfied that the learned trial judge was right when he held that the Respondents were able to show that the property, subject matter of this dispute, was ipso facto vested in Odunton who transferred same to the Late Seidu Adelakun, before same devolved on his three children and subsequently the Respondents/Claimants.
On the question of identity of the land, while the law remain settled that, in an action for declaration of title to land, it is the duty of a Claimant to establish with certainty the identity of the land to which
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the action relates, it is also trite law that the claimants can discharge this burden either by calling oral evidence and describing the said land with such degree of accuracy as to guide the Court with respect to the dispute before it. Another way is by filing a plan reflecting all the features of the land showing clearly the boundaries. See ADOMBA v. ODIESE (1990) LPELR – 190 (SC); ONWUKA v. EDIALA (1989) LPELR 2720 (SC). Here, the Respondent were able to establish that the disputed land is now known by its municipal address, No.3, Idiomo Street/ No. 4, Egbe Street, Isale-Eko, Lagos. Contrary to the erroneous contention of the Appellant’s counsel, it is not mandatory for the Respondent, in proving the identity of the disputed land, to tender a composite plan. See ADEDEJI v. OLOSO (2007) 5 NWLR (PT 1026) 133. The absence of a composite plan is not fatal to the Respondents’ claim before the lower Court having been able to successfully identify the land in dispute. Furthermore, from the pleadings and evidence on record, I believe the identity of the land is established. This is because, in 1898, after the title passed to Adelakun, he took possession erected and
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those shops are still on it. The same land wherein the shop was erected is known as No. 3, Idiomo Street/ No. 4, Egbe Street, Isale-Eko Lagos. Therefore it was identifiable to both parties and had not changed, only its name changed.
On the question of locus standi, which entails the legal capacity of a person, be it natural or artificial, to institute legal proceeding in a Court of law. Locus standi principally is anchored on the legal capacity of the party seeking to be heard with respect to the complaint before the Court in the sense that a party must be able to show that he has interest(s), sufficient enough, which has been adversely breached or affected, the basis upon which he or she seeks redress. There are basically two tests in determining locus standi of a person. The tests are (1) the action must be justiciable; and (2) there must be a dispute between the parties and the claimant has right rights, duties, liabilities connected with the subject matter. See A-G KADUNA STATE v. HASSAN [1985] 2 NWLR (PT. 8) 483; NNOLI v. NNOLI (2013) LPELR – 20699, 17 – 18, F-A.
It was established beyond dispute before the trial Court that the Respondents are
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the grandchildren of Late Seidu Adelakun, whom the land was alienated to and through whom Respondents claim. A fortiori, the Respondents are not merely acting for their respective person individually; it is also obvious from the record that they also claimed on behalf of all beneficiaries of the Late Seidu Adelakun.
Therefore, I am of the firm view that the Respondents, have sufficient interest the subject matter of the dispute.
I resolve the issues in respect of a, b and d in favour of the Respondent.
ISSUE TWO (C)
Appellant’s Counsel submitted that the plea of Res Judicata was never raised and he referred to Paragraph 3(c) of the Statement of Defence of 30th September, 2010 and Paragraph 5c of the written Statement on Oath of 6th October, 2010 the Appellant pleaded the judgment of the Registrar of Titles 7th April, 2012 in respect of an application for first registration of 4 Egbe Street, Lagos under Title Certificate No. L06619- covered by a Crown Grant dated the 4th of April, 1870 and registered as 4/36/4 at the Lands Registry Lagos.
The Appellant referred to the judgment of the Lands Registry Court which is Exhibit “11” which
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was tendered to strengthen his case of possession and ownership of 4, Egbe Street, Lagos, and not as “res judicata”. He cited BASSEY & 6 ORS v. EKANEM & ANOR 1 NWLR PT 694 AT 360.
He referred, further to the evidence elicited during the cross examination of the 1st Respondent. He referred to Section 168(1) of the Evidence Act, 2011 on the presumption of regularity to submit that the Registrar of Titles, when hearing the application for the first registration of 4, Egbe Street, Lagos under Title No. L06619 and the objectors thereto, complied with the provisions of Sections 8 and 88(4) of the Registration of Titles Law 2003 by giving all persons interested an opportunity of being heard. Counsel referred to documents tendered by the Appellant, viz, Exhibits “9 – 12” and also stated the content of Exhibit “11” before finally submitting that although the land Registry Court is an inferior Court of Record of competent jurisdiction, its judgment could be pleaded as “Res Judicata”. He referred to ADEOYE v. JINADU (1975) 9 NSCC 250 AT 251-253 and Section 173 of the Evidence Act, 2011 and that the said judgment is still valid and subsisting and this is
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different from the doctrine of “stare decisis”.
No response on this issue by the Respondents in their brief.
RESOLUTION
This issue is as to whether the Registrar of Title’s judgment as per Exhibit 11 can operate as Res Judicata in relation to the facts and circumstances of the instant case?
In OKUKUJE v. ODEJENIMA AKWIDO [2001] 3 NWLR (PT. 700) 261, KASTINA ALU JSC, stated that, for the doctrine of estoppels per rem judicatam to apply, it must be shown that:
(a) Parties;
(b) Issues;
(c) Subject-matter in the previous action was the same as it was in the action in which the plea is raised.
See THOMAS v. ADERINOKUN [2008] 16 NWLR (PT.1112) 184; ADEBO v. OMISOLA [2005] 2 NWLR (PT 909) 149.
As a general rule, once more of any issues have been distinctly raised in a cause of action and determined between the same parties in a Court of competent jurisdiction, neither party is allowed to reopen or relitigate any of such issues again in another action between the same parties.
I believe the learned trial judge considered this issue and aptly reached a comprehensive conclusion which I am inclined to agree with at page
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139 of the record that the Judgment’ of the Registrar of Titles as per Exhibit 11 did not settle the issue of title as the Respondents had sought by the action they filed before the lower Court. Indeed, what is obvious from Exhibit 11 is that no title was declared in favour of the Respondent and they were not permitted to register their title to the land because they failed to prove their claim or title to the land before the Registrar, having regards to the objections filed against the registration. In the words of the learned trial judge:
“… the judgment of the Registrar of Titles certainly did not resolve the issue of title to the subject property. In addition, the decision of the lower Court is most certainly not binding on this Court, indeed the true import of Exhibit 11 merely establishes that the claim of the applicant (Alhaja Amudalatu Dauda Ottun, Anotu Ajiwon Ottun and Alhaji Mujitaba Alabi Dauda Ottun) in the said suit, that the parcel of land was assigned to their father Dauda Ottun, was found not to have been proven and I so hold. Furthermore, it has not been established that the parties and reliefs sought on Exhibit 11 are the same as the
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claims and reliefs in this present action as to make vulnerable to the challenge of res judicata and I so hold…”
The above conclusion of the learned trial judge is unimpeachable and cannot be disturbed by this Court. On the face of Exhibit 11, the parties therein are different from those in the instant appeal, with Alhaja Amudalatu Dauda Ottun, Anotu Ajiwon Ottun and Alhaji Mujitaba Alabi Dauda Otun as Applicants on the one hand and Sadatu Bakare, Alhaja Mulikatu Adeleke, Madam Nimota Ashake as 1st set of objectors and the Egbe Chieftaincy Family as 2nd set of objectors. See Page 31 of the record. A fortiori, Appellant’s counsel, somewhat conceded, in his brief at paragraph 4.31.2 that Exhibit 11 although not operating as estoppel per rem judicatam, it can be used to strengthen a party’s case as an act of possession and ownership and that herein, the Appellant is using Exhibit 11 to strengthen his case of possession and ownership of the disputed property.
?The lower Court was right when it held that Exhibit “11” did not resolve the issue of title to the subject property and the decision of the Registrar of title is most certainly not binding on this
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Court. The reliefs sought are certainly not the same. See SHANU & ANOR v. AFRIBANK NIG. PLC (2002) 17 NWLR (PT 795) 185.
I resolve this issue in favour of the Respondent.
Having resolved all issues in favour of the Respondents, this appeal is unmeritorious and is hereby dismissed. The judgment of IPAYE J. of the Ikeja Judicial Division of the Lagos State High Court delivered on 17th December, 2013 is hereby affirmed.
Cost of N50, 000.00 is awarded to the Respondent.
Other Citations: (2016)LCN/8752(CA)
