J. S. Talabi V. Madam Abiola Adeseye (1972)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C. 

In the High Court, Ikeja, the plaintiff, who is the respondent in the appeal before us, had sued the appellant, as defendant, for the following claims:-

“(a) The sum of 400pounds as special and general damages for the trespass committed by the defendant on the plaintiff’s said land situated and being at Plot 70 Durojaiye Street, Itire, Mushin which is within the jurisdiction of this Court and in lawful possession of the plaintiff.

(b) Possession of the said land situate and being at Plot 70 Durojaiye Street, Itire, Mushin.

(c) An injunction restraining the defendant his agents and/or servants from interfering with the use of the land by the plaintiff her agents or workmen and from trespassing any further on the land.”

The plaintiff’s writ also contains a further endorsement in the following terms:-

“The plaintiff is the lessee of the said piece of land for the period of 50 years beginning from the 29th November, 1965, from the Onitire Family and the lease is covered by a deed of lease dated 25th June, 1966 and registered as No. 18 at page 18 in volume 920 of the Lands Registry in the Office at Ibadan.

Title is involved.”

So, manifestly, the plaintiff’s case on her writ postulates that the titles of the respective parties would be investigated by the court. At the onset, we feel bound to comment on the claims of the plaintiff as expressed on her writ. She had asked for an order of possession. This clearly envisaged that at the time of the institution of the proceedings she was not in possession of the land in dispute. At the same time, she had asked for damages for trespass and an injunction against the defendant. The remedy in trespass only avails a person in possession; the entry into land by a trespasser does not, ipso facto, put the trespasser in possession for the rightful possessor still remains in possession and any such entry is a wrongful disturbance of possession; further trespasses by the trespasser are properly dealt with by an order of injunction.

We have had occasion before to point out the inconsistency of these claims of possession and trespass and must now observe that unless there are clear findings one way or the other it may be impossible to support a judgment given for either of the two remedies where, by the plaintiff’s own writ, the two have been specifically claimed. See the observations of this Court in Aromire and Ors. v. Awoyemi, S.C. 38/69 decided on 11th February, 1972.

In the present action, the parties filed their pleadings. As on her writ so it is stated on her statement of claim that the plaintiff was a lessee holding a 50-year lease dated the 25th June, 1966 from the Onitire Family. The statement of claim also avers that she entered into possession of the land in dispute on the 29th November, 1965 (this being the date of commencement of her lease) cleared the bush and placed workmen on the land who were making cement blocks and building the foundations of a house. The statement of claim also avers that on the 26th April, 1966, the defendant appeared “with his servants, and broke down the foundations” and damaged the blocks on the land. Paragraphs 14 and 15 of the statement of claim further aver as follows:-

“14. The plaintiff would rely on the judgments of the Supreme Court of Nigeria in Suit No. S.C. 293/64: Lasisi Layeni Onitire of Itire (for himself and on behalf of Onitire family) v. Ashimowu Durojaiye.

15. The plaintiff at the hearing would plead all legal and equitable rights. ”

The defendant also filed a statement of defence. In it he avers that he had bought the land in dispute along with other plots of land from one James Adeoye Daniel and that he obtained from his vendor a conveyance dated the 21 st April, 1962, that James Adeoye Daniel himself became the owner of the land by virtue of a conveyance dated the 21 st November, 1955 executed in his favour by one Ashimowu Durojaiye Ajiya; and that the said sale to his vendor was subsequently ratified by another deed of conveyance in favour of James Adeoye Daniel dated the 11 th February, 1959 and executed by the said Ashimowu Durojaiye Ajiya and other members of the Ajiya Family. Paragraphs 5, 6 and 7 of the defendant’s statement of defence state as follows:-

“5. The defendant avers that the plaintiff is bound by the judgment of Mr. Justice Madarikan in Suit No. HK/69/60 in the High Court of Justice Western Nigeria dated 18th December, 1961.

6. The defendant avers that at the time he bought from James Adeoye Daniel he had no knowledge nor could he have had knowledge of the compromise judgment in Suit No. S.c. 293/62 Lasisi Layeni (Onitire) v. Ashimowu Durojaiye dated 11th November, 1965 in which James Adeoye Daniel was not a party.
7. The defendant will rely on the judgment delivered at the High Court Ikeja on 3rd January, 1967 in Suit No. 1/108/55 and the appeal in the Supreme Court dismissing the plaintiff’s case in F.S.C. 85/1958 dated the 13th November, 1958 in i.e. Salawu Lawani (Bale of Itire) v. Ashimowu Durojaiye.”

At the trial, the plaintiff gave evidence of her lease and her entry into possession of the land in dispute and her occupation of the same without hinderance or disturbance as from the 29th November, 1965. She had obtained a lease of the land later, i.e. in June 1966, and she produced the lease and this was admitted in evidence as exhibit B. She testified that she made a number of cement blocks on the land and had indeed erected part of a building when the defendant came and pulled down her building. The plaintiff called a witness by name Wahabi Alayande, a butcher, who testified that on the day of a fight on the land in April 1966, he saw the defendant “and some others” on the land in dispute and that they came “with hammers and cutlasses and destroyed the walls which had gone up to the DPC level”. The plaintiff also called three members of the Onitire Family as her witnesses-Alhaji Aliyu Isiba, Saliu Sule and Saliu Adamo. These witnesses claimed the land leased to the plaintiff as part of an extensive area of land radically owned according to native law and custom by the Onitire Family and described in rather meticulous details the boundaries of their family lands. They claimed to have always been in possession of their lands and that they farmed the lands and gave out portions of their lands to rent-paying tenants like the plaintiff. They confirmed the grant in the deed of lease, exhibit B, and stated that they had put the plaintiff in possession of that portion of their land. Aliyu Isiba testified that he knew Ashimowu Durojaiye and concerning her he testified as follows:-

“We had a case with Ashimowu Durojaiye in respect of a portion of our land. She obtained judgment against our family. We appealed to the Supreme Court and we lost.

Later we instituted an action in this court to set aside the earlier judgment on the ground of fraud (HK/39/62). The action was dismissed in this court. We appealed. In the Supreme Court we settled the matter and the terms of settlement were recorded in a compromise judgment; it is exhibit C. We instituted the action because at the time of the earlier litigation she had sold the land and conveyed it. I was in court during the hearing of 1/108/55. She sold the land to Talabi.”

The witnesses from the Onitire Family also produced a copy of the

plan covering their lands (admitted as exhibit D) and called a surveyor Michael Kukoyi who identifed the plan of the land in dispute in exhibit B and testified that the land in exhibit B falls within the lands in exhibit D. The witness for the Onitire Family also produced judgments obtained by them in respect of several portions of the lands in exhibit D and these were admitted as exhibits E and F. These witnesses also testified that the defendant herein had approached them for the sale to him of the land in dispute, that they told him that they had already leased the land to someone else and indeed that the defendant at that time had agreed to their suggestion to sell another piece of land to him. They stated that the defendant did not however come back to them until he went on the land in dispute in the way described by the plaintiff. The plaintiff also called a witness by name Alhaji Shittu Sunmola who claimed to be a member of the Gboyin Family. He testified in part as follows:-

“Gboyin Family land and Onitire Family land have a common boundary which is a stream. The land in dispute is in Onitire Family

land. ”

The defendant also gave evidence and stated that he had bought the land in dispute from James Adeoye Daniel who had since died. He produced the conveyance given to him by Daniel and this was admitted in evidence as exhibit L. He also produced, and these were admitted as exhibits M (and plan Ml) and N, copies of the deeds recited by and in the conveyance exhibit L. He produced copies of judgments affecting the land in dispute. These were admitted as exhibits 0, 01 and 02. He testified that he bought as well other plots of land from James Adeoye Daniel and had indeed built a house on some of the others which he had let out to rent-paying tenants and denied that he ever went on the land in dispute in April 1966 or damaged any building foundations. He admitted having been shown the compromise judgment in exhibit C but stated that he had no previous knowledge of it and that the representatives of the Onitire Family had told him of the original judgment and of the fact that their family was now the owner of all the lands at Itire. In cross-examination, he was asked about the effect of the judgments exhibits 0, 01 and 02 and he answered thus:-

“Mr. Daniel showed me exhibits 0, 01 and 02, as evidence of his title. Yes, if exhibits Oland 02 had not been produced to me I would not have bought. Yes, I had bought before exhibit 0 was produced.

If today, Daniel shows me exhibits 01 and 02 and exhibit C, I would still buy the land. I do not know the effect of exhibit C on exhibits 01 and 02.

I know the Itire Family has land but I do not know the extent of their land. I heard of Imagbon for the first time in this court. I don’t live in the area in question.”

and further in the course of cross-examination he testified thus:-

“I still maintain that the Itire Family are not the owners of the Agia Family land-out of which I have bought. Yes, I said this on the basis of exhibits 01 and 02.”

The defendant also called as his witness Ashimowu Durojaiye Ajiya. She testified as to her involvement in some land cases with the Onitire Family and stated further in the course of examination-in-chief that:-

“I know the late J. A. Daniel. I cannot answer to the question as to whether or not I sold land to him. I am here to testify as to the falsehood to which I have referred.”

She was then cross-examined by learned counsel for the plaintiff. She testified to her dealings with James Adeoye Daniel and denied ever selling land to Daniel. She stated on this point as follows:-

“I did not say before Madarikan J. that I bargained to sell the 2 plots to the 2nd defendant (J. A. Daniel). Yes, I told Madarikan that I did not sell any land to Daniel because he did not pay. Daniel never bought any land from me. I never sold land to Daniel. I executed a conveyance in favour of Daniel, but he never paid me. I instructed Daniel to help me sell the land. I never bargained to sell 15 acres of land to Daniel.”

She was questioned about the compromise judgment before the Supreme Court in exhibit C. She at first stated that she did not consent to any judgment before the Supreme Court. Later, she testified on the matter as follows:-

“When that appeal of Madarikan’s case was pending in the Supreme Court, my lawyer, Mr. Fawehinmi, advised me to settle with the Hire people. I asked for 6,000pounds … But my lawyer sent me a cheque for 600pounds as money paid by the Hire people. I deposited the money somewhere, expecting that the Hire people would pay the balance. I cashed the cheque. Up till now the Hire people have not paid the balance. After Mr. Fawehinmi had sent me the cheque I never met him again.”

In the course of their addresses both counsel addressed the court on the issue of title and, submitted to the court that the matter in dispute could only be solved on the strength of the respective titles of the two parties. In a reserved judgment the learned trial judge acceded to the claims of the plaintiff awarding her 150pounds damages for trespass, possession of the land in dispute and an injunction to restrain the defendant, his agents and/or servants from further acts of trespass on the land. On the issue of possession he found and held that the plaintiff and her lessors have always been in possession of the land in dispute and commented on the issue of title as follows:

“The plaintiff has by traditional evidence, judgment and the evidence of a boundaryman proved the title of the Onitire Family to the land in dispute and I am satisfied that the title has been properly established. The plaintiff derived her title from the Onitire Family and she therefore has a better right to possession.”

Earlier on and in the course of the judgment, the learned trial judge had directed himself thus:-

“What then is the effect of exhibit C My view is that since exhibit C has set aside the judgment which Ashimowu Durojaiye had in 1/108/55, the parties, i.e. the Itires and the Ajia Family were returned to their status quo, the issue of title to the land claimed by the Ajia Family being thereby thrown at large. That to my mind is the position in which the defendant found himself when this case came up in this court. Whether the judgment in 1/108/55 affects the title given by Ashimowu Durojaiye to Daniel or not, the position now is that the defendant has to establish the title of the Ajia Family to the land in dispute as against that of the Itire Family before he can succeed.”

The learned trial judge carefully examined the various exhibits and concluded that the judgment in exhibit C had validly set aside the judgment in exhibit 0. He then observed as follows:-

“Since the defendant claims title to the land from the Ajia Family through Daniel, and since he has failed to prove the Ajia Family’s title to the land, Daniel’s title has failed and with it the alleged grant made to the defendant.”

The defendant has appealed to this Court against that judgment.

Learned counsel for the defendant did not attack the findings of fact by the learned trial judge but submitted that on grounds of law the compromise judgment in exhibit C could not and did not bind James Adeoye Daniel, who had bought the land by virtue of exhibit M (dated the 21st November, 1955) and whose title was, after the judgment in exhibit 02 (dated 13th November, 1958), confirmed and ratified by the Ajiya Family by virtue of another conveyance exhibit N (dated 11th February, 1957), these events having happened long before the compromise judgment in exhibit C was pronounced on the 15th November, 1965. It was further argued by learned counsel for the defendant that if exhibit C was not binding on his vendor, James Adeoye Daniel, it is a fortiori not binding on the defendant; and that therefore the judgment in exhibit 01 (Taylor J. on the 3rd January, 1957) and on appeal therefrom, exhibit 02 (Supreme Court on the 13th November, 1958) enured in favour of James Adeoye Daniel and the defendant.

Learned counsel for the defendant also submitted that exhibit C (Supreme Court on the 15th November, 1965) which was the result of the appeal from exhibit 0 (Madarikan J. on the 31st July, 1963) could not constitute res judicata as against the defendant. On the other hand, learned counsel for the plaintiff submitted that the defendant did not establish the title of whoever granted him lands for his conveyance was not proved, that he did not establish the title of the Ajiya Family as he ought to have done and that he did not establish res judicata in respect of the cases which he had relied upon as subsisting in his favour. Furthermore, learned counsel for the plaintiff submitted that on the date of the Supreme Court judgment in exhibit C, that is the 15th November, 1965, the title of the defendant by virtue of exhibit M (i.e. 21st November, 1955) had already accrued and so was subject to the judgment in exhibit C. Learned counsel for the plaintiff again submitted that the findings of fact regarding possession and trespass were in his favour and that on those facts he should have won the case in any event.

Although the submissions of law appear complicated, it is easy to dispose of the issues involved in this case. The learned trial judge considered the facts of the case and resolved the issues of fact in favour of the plaintiff. There has been addressed to us on appeal no argument against the findings of fact and we are of the view that those findings are fully justified by the evidence accepted by the learned trial judge. If the findings were to the effect that the plaintiff and her lessors were always in possession of this land, as indeed they were, then the plaintiff is entitled to an order for damages for trespass and to an injunction. Those findings postulate that the defendant was never in possession except by the act of trespass which is the subject-matter of the present suit. In these circumstances, a further order for possession is inept and we would have though that the claim for possession should have been struck out. The distinction between a claim for damages for trespass and one for possession or recovery of possession is of considerable substance for such difference manifests itself at all stages of litigation covering the pleadings, the evidence to be given, the nature of the findings, the order on the judgment and indeed the method of enforcement or execution.

We must now allude to the submissions of learned counsel on grounds of law and in order to appreciate the issues better it is necessary to set out the principal events in their chronological order:-

(i) Exhibit M, dated 1st November, 1955-conveyance of land in dispute by Ashimowu Durojaiye Ajiya to James Adeoye Daniel.

(ii) Exhibit 01, judgment of the High Court, Ikeja (Taylor J. as he then was), dated the 3rd January, 1957-dismissing the claims of the Onitire Family to a declaration of title to lands including the land in dispute and awarding on the counter-claim a declaration of title to Ashimowu Durojaiye Ajiya for the Ajiya Family.

(iii) Exhibit N, dated the 11th February, 1957-conveyance ofland in dispute and ratification of exhibit M to James Adeoye Daniel by Ashimowu Durojaiye Ajiya.

(iv) Exhibit 02, judgment of the Federal Supreme Court, dated the 13th November, 1958-dismissing the appeal of the Onitire Family against the judgment in exhibit 01.

(v) Exhibit L, dated 21st April, 1962-conveyance of land in dispute by James Adeoye Daniel in favour of the defendant, John Sojomehin Talabi.

(vi) Exhibit 0, judgment of the High Court, Ikeja (Madarikan J. as he then was) dated the 31st July, 1963-dismissing the claims of the Onitire Family to set aside on the ground of fraud the judgment entered in favour of Ashimowu Durojaiye Ajiya by the High Court, Ikeja, on exhibit 01.

(vii) Exhibit C, dated the 15th November, 1965-compromise judgment of the Supreme Court setting aside the judgment of the High

Court, Ikeja, in exhibit 0.

(viii) Exhibit B, date the 25th June, 1966-lease of land in dispute for 50 years by the Onitire Family to the plaintiff.

Evidently, before the date of the compromise judgment, exhibit C, i.e 15th November, 1965, the Ajiya Family had not only won all the cases against them by the Onitire Family but they also had granted the land in dispute to James Adeoye Daniel by virtue of exhibit M and ratified his title by another indenture of conveyance exhibit N. Furthermore, James Adeoye Daniel had sold the land in dispute by virtue of exhibit L to the present defendant. On these facts, learned counsel for the defendant had submitted that whilst the judgments exhibits 01 and 02, which preceded the date of the grant to the defendant, were binding as between the Onitire Family and the defendant, the compromise judgment, exhibit C (and possibly the judgment exhibit 0) which came after the grant to the defendant, could not and does not bind the defendant. For this submission learned counsel for the defendant relied on a passage at page 59 of the Second Edition of Spencer- Bower on Res Judicata which states the law thus:-

“Where a judgment or order which fulfils all the requisites of a good res judicata has once been pronounced, a subsequent order merely embodying a compromise by the parties, on appeal, of their rights and liabilities so adjudged, or merely purporting to rescind or set aside by consent the former judgment or order, without the court being called upon to exercise its functions of review, or having any judicial cognisance of the unofficial reversal, is not a decision at all, and has no effect whatever on the first judgment, which remains the only res judicata binding on the parties.”

It is difficult to see how the paragraph cited applies to the case in hand. No consent judgment or order has the slightest operation or effect whether by way of estoppel or otherwise against any third person or against any of the parties who is not shown to have consented to it. We think it inconceivable however that one of the parties consenting to a compromise judgment should be at liberty to contend in subsequent proceedings between the same parties that he is not bound by the order to which he had previously consented. The order on the compromise judgment, exhibit C, reads as follows:-

“UPON READING the Record of Appeal herein and after hearing Mr. H. A. Lardner of counsel for the appellant and Mr. R. Ola Fawehinmi of counsel for the respondent:-

IT IS ORDERED that this appeal be settled on the following terms herein agreed to by the parties:-

“1. That the judgment on the counter-claim in Suit No. 1/108/55 entitled ‘Salawu Lawani (Bale of Itire) representing the Itire Family versus Ashimowu Durojaiye representing the Agia Family given in the High Court of Western Nigeria on the 3rd January, 1957 be set aside and an order of dismissal of the said counter-claim be entered.

2. That the order for costs in the court below be set aside.
3. That the costs of this appeal be costs in the cause.
4. That these terms of settlement do form the judgment of the Court in this appeal.”

Manifestly, this is not an order in respect of which it could be said that the court was not called upon to exercise its functions of review or to have any judicial cognisance of the unofficial reversal of the order of the High Court. After all, a consent judgment or order is as effective in respect of the matters which are thus settled as any judgment after the matters are fully fought out to the end, and Lord Herschel L.c., commenting on the efficacy of a consent judgment in In re South American and Mexican Company ex parte Bank of England [1895] 1 Ch. 37 at page 50, states:-

“The truth is, a judgment by consent is intended to put a stop to litigation between the parties just as much as is a judgment which results from the decision of the Court after the matter has been fought out to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgments, and were to allow questions that were really involved in the action to be fought over again in a subsequent action.”

Furthermore, the submissions of learned counsel for the defendant overlook the statement at pages 37 and 38 of the Second Edition of Spencer-Bower on Res Judicata to the following effect:-

“Any judgment or order which in other respects answers to the description of a res judicata is none the less so because it was made in pursuance of the consent and agreement of the parties. It is true that, in such cases, the court is discharged from the duty of investigating, or (where the consent is given at a late stage in the proceedings) further investigating, the matters in controversy, and is not asked to, and does not, pronounce a judicial opinion upon any of such matters; but is none the less true also that, at the joint request of the parties, the tribunal gives judicial sanction and coercive authority to what those parties have settled between themselves, and in that way converts a mere agreement which, except in certain special cases the subject of express statutory provision in that behalf, could only operate as an agreement, and not as a bar, into a judicial decision on which a plea of res judicata may be founded.

Accordingly, judgments, orders, and awards by consent have always been held no less efficacious as estoppels than other judgments, orders, or decisions, though doubts have been occasionally expressed whether, strictly, the foundation of the estoppel in such cases is not representation by conduct, rather than res judicata.

It must be observed, however, at this point, that the efficacy of a consent to found a res judicata may depend upon the capacity to consent of him who purports to do so.”

We are not impressed by the arguments against the validity and efficacy of the compromise judgment in exhibit C. The learned trial judge who tried the case concluded that as it is stated on the face of exhibit C it validly sets aside the judgment, exhibit 01. In order to appreciate the efficacy of exhibit C it is perhaps necessary to examine its genesis. In exhibit 01 the Onitire Family had sued the Ajiya Family for, inter alia, a declaration of title to lands including the land in dispute (Suit No. 1/108/55).

The Ajiya Family then filed a counter-claim to the action asking for, inter alia, a declaration of title to the same lands. In the High Court, Ikeja, which tried that case, the claims of the Onitire Family were dismissed whilst the counter-claim of the Ajiya Family was upheld and judgment was entered in favour of the Ajiya Family for such a declaration title. That judgment was appealed against by the Onitire Family but the appeal was dismissed by virtue of exhibit 02. The date of the judgment in exhibit 01 was the 3rd January, 1957. Then in 1962, for reasons best known to them, the Onitire Family instituted another action, i.e. Suit No. HK/39/62, against the Ajiya Family asking for “an order setting aside on the ground of fraud the judgment entered in favour bf the Ajiya Family on their counter-claim in Suit No. 1/108/55.”

The judgment in this later action is exhibit O and was given on the 31st July, 1963 whereby the case of the Onitire Family was dismissed. The Onitire Family then appealed to the Supreme Court against exhibit O. The judgment of the Supreme Court, i.e. exhibit C, is the result of this appeal. If the Onitire Family had discovered that the judgment in exhibit 01 was obtained by fraud, clearly they have no other means of seeking redress than by instituting, as they did in exhibit 0, a fresh action, see Flower v. Lloyd (1877) 6 Ch. D. 297. It cannot be disputed that if fraud is proved in exhibit 0 it would invalidate the judgment in exhibit 01. As Lord Selbourne L.C. said in Earl of Aylesford v. Morris (1873) 8 Ch. 484 at pages 490-491:-

“Fraud does not here mean deceit or circumvention; it means an unconscientious use of the power arising out of these circumstances and conditions; and when the relative position of the parties is such as prima facie to raise this presumption, the transaction cannot stand unless the person claiming the benefit of it is able to repel the presumption by contrary evidence, proving it to have been in point of fact fair, just, and reasonable.”

The conduct of the parties in exhibit C before the Supreme Court signified an admission by the Ajiya Family of the allegation of fraud with respect to the judgment obtained by them on their counter-claim in exhibit 01, as indeed was claimed by the Onitire Family. If that is so, as indeed it was, then clearly as between the parties to exhibit C and their privies, exhibit C is as valid a judgment creating res judicata as any other judgment of the Supreme Court.

Learned counsel for the defendant has referred us to the case of Lees v. Motor Insurers Bureau [1953] 1 W.L.R. 620 and to the course adopted there by the Court of Appeal on a compromise reached between the parties to the appeal. Apparently learned counsel relied on the obiter attributed to Lord Denning L J. at page 621 of the report to the effect that an appeal could not be allowed by consent “for that would be reversing the judgment of Lord Goddard C.J. without hearing the appeal.”

We had read this case and it is evident that the notes were too scanty to be of any real use at all. Besides this, it appears that although the order made on that appeal was to stay the appeal indefinitely, costs were awarded to parties on the basis that the appeal proceedings had actually terminated in accordance with the terms proposed by the court and agreed by the parties. It is noteworthy that even in that case learned counsel for the respondent, who had already got the judgment of the court below, emphasised to the Court of Appeal that his clients had already by the compromise obtained what they always wanted-a ruling as to the entitlement of motor insurers not to insert a particular clause in their policies. It is needless to contend on that case that the decision of the case is of no effect on those concerned.

Then it was argued for the defendant that he was not bound by exhibit C because it came along after the defendant had obtained his grant, exhibit L. On the other hand, learned counsel for the plaintiff submitted that the defendant’s title was constituted before exhibit C and that that judgment had the effect of setting aside all that exhibits 0, 01 and 02 had constituted. Prima facie, a prior purchaser of land cannot be estopped as being privy in estate by a judgment obtained in an action against the vendor commenced after the purchase. (See per Romer J. in Mercantile Investment and General Trust Company v. River Plate Trust Loan and Agency Company [1894] 1 Ch. 578 at page 595). In Spencer Bower on Res Judicata (Second Edition) at page 210, the following statement of the law appears:- .

“Where privity of estate is set up as the foundation of estoppel per rem judicatam, the title relied on to establish such privity must have arisen after the judgment on which the res judicata is based, or at least after the commencement of the proceedings in the course of which that judgment was given.”

We do not think that the judgment, exhibit C, is binding as such on the present defendant whatever may be its binding force (of which we are not in any doubt) on his predecessors-in-title-the Ajiya Family.

That however is not the end of the matter. The plaintiff claims by virtue of the radical title of the Onitire Family. The defendant claims by virtue of the radical title of the Ajiya Family. The plaintiff proved her title through the Onitire Family to the satisfaction of the learned trial judge. In proof of his own title the defendant must have recourse to the title of the Ajiya Family.

With respect to exhibit C and the judgments anterior in date to it, there is between the defendant and the Onitire Family no mutuality and res judicata like all other forms of estoppel must be mutual. He therefore, i.e. the defendant, could not rely upon the previous judgments which had been set aside by exhibit C. He therefore had to prove his title de hors those judgments. The learned trial judge said, and we are in agreement with him, that the defendant had failed to do this. On the issues of fact, there is the un-cooperative demeanour of Ashimowu Durojaiye Ajiya in the witness box as well as her positive denial of having sold any land to James Adeoye Daniel through whom the defendant claims.

No other witness from the Ajiya Family or indeed any other evidence from that area was called for or by the defence. On the issue of law, there is the failure to prove the execution of the conveyance exhibit L as it should have been proved even though James Adeoye Daniel had died (see the observations of this Court in Kasaliu Bamgbala v. Tunji Alade and Anor., S.c. 327/64 of the lith March, 1966).

We think therefore that on the whole case the defendant had failed to discharge the onus which the law has placed on him after the plaintiff had discharged her own onus. The pleadings in the case called for a declaration on the strength of the respective titles of the parties and as the learned trial judge concluded, the defendant was worsted in the encounter.

We have arrived at the conclusion that all the grounds of appeal argued for the defendant fail and that the whole appeal must therefore fail. The appeal is dismissed and the appellant will pay to the respondent the costs of the appeal fixed at 41 guineas.

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Other Citation: (1972) LCN/1440(SC)