John Bankole & Ors. V. Mojidi Pelu & Ors. (1991)

LawGlobal-Hub Lead Judgment Report

OMO J.S.C. 

This case on appeal was commenced twenty four years ago (1967) in the High Court of Lagos State, When the Plaintiffs/appellants, the Beku-Onimaba family of Igando village, sued the Osumba family of Ikotun village, claiming a declaration of title to part of their land called Moba, damages for trespass thereon by the defendants/ respondents and an injunction to restrain them from further trespass on the said land. The defendants/respondents vigorously denied these claims, asserting that the land claimed is part of their land called Mope.

Pleadings and plans were filed and exchanged by the parties. The plaintiffs/appellants produced survey plans to show the land in dispute (Exhibit A) and the whole of their land (Exhibit B),whilst the defendants/respondents tendered Exhibit G which cover not only the land in dispute but a larger parcel of land encompassing it which they claim belong to them. An identical plan tendered in a previous litigation was tendered by the plaintiffs/appellants, and admitted in evidence as Exhibit F. Hearing of this case in the High Court was unduly protracted, lasting 19 years, the actual trial spanning only 4 and a half years of this. At the trial, the High Court heard 17 witnesses and in a reserved judgment delivered on 22/6/86, dismissed the claims of the plaintiffs/appellants in their entirety. Against that judgments, the plaintiffs/appellants appealed to the Court of Appeal, their amended notice of appeal being dated 28/4/87. At the Court of Appeal, briefs were duly filed and oral argument proferred in support of their contentions by counsel. On 19/4/89, the Court of Appeal delivered its reserved judgment again dismissing the appeal of the plaintiffs/appellants and affirming the decision of the trial High Court with N350 costs in favour of the defendants/respondents. The present appeal to this court is against that judgment.

Before embarking on a consideration of the proceedings in, and issues for determination by this court, it will be useful to set out however briefly the main findings of the trial court and the court below which exercise will aid a better appreciation of the issues canvassed before us.

After hearing witnesses and considering exhibits, the trial High Court made the following findings of fact:-

(i) that although the plaintiffs pleaded that they have many tenants on the land in dispute none was shown on the land in dispute (Exhibit A).

(ii) that neither of the two witnesses whose farms were shown on Exhibit B was called to testify.

(iii) that the plaintiffs have no buildings on the land in dispute.

(iv) that Rufai and Tijani Ogunbewon, members of the plaintiffs’ family admitted in previous proceeding (Exhibit J refers) renting part of the land in dispute from and paying rents thereon to Mojidi Pelu – the 1st defendant. This is buttressed by receipts tendered in evidence as Exhibits M to M2.

(v) that the defendants story as to the name of the land (Mope/Imope) is preferred to that of the plaintiffs (Onimaba).

(vi) that even though P.W.1 and P.W.7 testified to having farms on the land in dispute before (presumably the dispute arose), not only were the sites of these previous farms not indicated on Exhibit A or B, but boundary witnesses called, did not testify in support of these claims.

(vii) that in respect of Exhibits D to D5 tendered as receipts issued to tenants of plaintiffs in respect of rent paid, evidence was not led to relate these documents to any particular land, nor were any of the servants called as witnesses; prominent among which is the present Bale of Ikotun-Kasunmu.

(viii) The defendants, on the other hand, have farms on the land, built houses thereon, have tenants who farm on the land, have juju shrines (Eyigba and Ogun) which they worship on the land in dispute.

(ix) that whilst D.W.5 and D.W.6 testified as tenants of the defendants, (Exhibits) M and M1 being admitted by D.W.6 as issued to him, D.W.7 defendants’ boundary man testified that the land in dispute is called Mope.

On the basis of these findings, the trial Judge (Oshodi, J.) came to the conclusion that the plaintiffs had failed to establish their claims and accordingly dismissed them.

In their appeal to the Court of Appeal the plaintiff originally filed two grounds of appeal. Subsequently, amended grounds of appeal containing five grounds were filed by them.

In their brief, the appellants set out the following issues for determination:-

(1) Did the learned trial Judge make a proper and balanced review of the totality of the material evidence given at the trial before him

(2) if he did not, can his judgment be upheld

(3) Did the learned trial Judge not misapply the principle enshrined in Kojo v. Bonsie (1957) 1 WLR 1223 to the evidence before him

(4) If he did, can his judgment be upheld in the circumstances of this case

5) If the answer to issues (2) and/or (4) is in the negative, are the plaintiffs not entitled to judgment having regard to

(a) evidence given by the defendants which inferentially admit that the plaintiff were in possession of the land, the subject matter of this case and

(b) the failure of the defendants to produce a composite plan showing what they are claiming in relation to the land in dispute (whether a part and what part or whether the whole of it)

(c) the manifest unreliability of the evidence called by the defendants.

(6) Is the judgment not against the weight of evidence

In its judgment the Court of Appeal confirmed the conclusion of the learned trial Judge that the plaintiffs had failed to prove their case. It also made findings/comments which have been attacked on the grounds of appeal and issues for determination filed; alleging confusion arising from plans filed and the onus of proof where a composite plan is required, questioning whether a tenancy-in-possession as opposed to ownership-in-possession has arisen from the evidence of D.W.1., and whether Exhibits J,O,C2 and C3 have given rise to estoppel and/or res judicata in favour of the defendants.

Eleven issues for determination were formulated by the plaintiffs/appellants (hereinafter referred to as “appellants” only) in their brief in this court. They were therein set out as follows:-

1. Whether the lower court, in considering the appeal, considered the proper and valid grounds of appeal put forward by the plaintiffs and if not whether the judgment of the lower court can stand
2. Did the lower Court not misapprehend what constitutes the land in dispute having regard to the pleadings and evidence
3. Whether the lower court did not wrongly find that the plan in Exhibit ‘F’ is the plaintiffs plan
4. If issues 2 and 3 above are answered in the affirmative, did the lower court not misplace the onus of proof with respect to proof of ownership, possession and tendering of a composite plan
5. Having held that the plaintiffs were in possession of the land in dispute through their tenants, was the further finding that they did so as tenants of the defendants in line with the pleadings and evidence before the court
6. Is the principle laid down in Kojo v. Bonsie (1957) 1 W.L.R. 1223 as to proof of traditional ownership of land not in favour of the plaintiffs than the defendants on the evidence
7. Did the customary court have jurisdiction to determine the claim in Exhibit J and if not, can the proceeding and judgment therein be relied upon as estoppel on the facts of this case.
8. Assuming that Exhibit J is valid (which is denied) can the judgment be relied upon as creating estoppel against the plaintiffs, in any event. having regard to the facts of this case
9. Was res-judicata with regard to Suit No IK/76/68 (Exhibit C2), an issue in the two lower courts and if not, was it proper for the lower court to raise it suo motu and determine the same in its judgment without first giving the parties the opportunity of being heard on the point
10. Could the judgment in Suit No IK/76/68 (Exhibit C2) create res judicata against the plaintiffs having regard to the times of commencement of both suits and the conditions under which res judicata applies
11. Are the plaintiffs not entitled to judgment in terms of their claims on the balance of probabilities vis-a-vis the defence

The defendants/respondents (referred to as “respondents” simpliciter hereafter) in their brief, set out the following differently formulated issues for determination:-

1. What are the conditions necessary for setting aside concurrent judgments of the court of trial and the Court of Appeal
2. When the Court of Appeal affirms the judgment of the court of trial, is any misapprehension of fact or error in law by the Court of Appeal alone, repeat, by the Court of Appeal alone enough to warrant the setting aside of the judgment of the court of trial which has not misapprehended any fact or made any mistake of law, in other words can an error on the fact or of law by the Court of Appeal alone render invalid the judgment of the court of trial which on its own is unimpeachable or put in another way, should a correct judgment be set aside because wrong reasons are given for it, especially for confirming or for affirming it by the appellate tribunal
3. Is the judgment of the Court of trial (i.e. the judgment of W. Ajao Oshodi. J in this case,) open to criticism on the ground of the defects complained of by the appellants This issue for determination calls for a wholesale review of the evidence adduced before the High Court and the facts found by the learned trial Judge together with an examination of the facts pleaded as far as they relate to the complaints of the appellants. See Ezekiel Oladimeji Ogundipe v. John Awe & Ors. (1988) 1 S.C. 214 at 221; (1988) 1 NWLR (Pt.68) 118.
4. On whom lies the burden or onus of producing a COMPOSITE PLAN in a land case
5. Can there result a Miscarriage of Justice let alone a substantial miscarriage of justice from the complaints of the appellants set out in the issues for determination listed in the appellants’ brief in the special circumstances of this case
6. What is the land in dispute in this case How is it ascertained in a land case
7. Was there any misapprehension as to the fact of the land in dispute by the learned trial judge, using the term “land in dispute” as the appellant counsel would prefer to construe it
8. Is there any finding either by the lower court or the High Court that the plaintiffs were in possession of the land in dispute through their tenants See P. 708

It is necessary to draw attention to the fact that such lengthy issues do not accord with the guidelines given by this court in past decisions. They are so prolix and so proliferate as to be more in number than the grounds which they are based vide Ugo v. Obiekwe (1989) 1 NWLR (Pt.99) 566; Adelaja v. Fanoiki (1990) 2 N NWLR (Pt.131) 137; Agu v. Ikewibe (1991) 3 NWLR (Pt.180) 385, 387. It is to be hoped that counsel will desist from such formulations in the future.

In their reply brief filed, the appellants contended that issues 2, 3, 5 and 7 formulated above by the respondents are wrong for a variety of reasons, and should be struck out. With regard to issue 2, the complaint is that-

(a) the points raised do not arise from the grounds of appeal of the appellants;

(b) there is no ground of appeal that prays for the setting aside of the trial court’s judgment only because the Lower Court (alone) made errors of law or misapprehended the facts.

(c) the issue cannot be examined by this Honourable Court in the wrong way it is drafted as it already assumes that the High court judgment “………is on its own unimpeachable………..” and that the High Court “…………..has not held misapprehended any fact or made any mistake of law……….” When this court has not heard this appeal at all to examine those complaints of the appellants.

(d) the issue is not posing a question but is making an argument, and therefore cannot be an issue for determination”.

These objections are well taken for the reasons set out. Respondent’s issue 2 is, apart from being very badly framed and argumentative, not properly tied to any ground of appeal. It is at best a possible adjunct to or particulars (if properly framed of an issue framed on an omnibus ground of appeal. It is accordingly struck out. Issue 3 comprises an argument and also poses a question not relevant to the grounds of appeal filed challenging findings of facts of the trial court. What should be addressed are findings of fact of the Court of Appeal even if they are merely confirmatory of the trial courts findings. With regard to issue 5 the complaint that it attacks the appellants’ issues for determination instead of concerning itself with the grounds of appeal is correct. Mere comments on and/or criticisms of issues for determination filed by an appellant are not admissible as issues for determination by a respondent.

Finally the present appeal is against the judgment of the Court of Appeal. Respondents issue 7 refers to the judgment of the trial court. That is wrong. Issues 3, 5 and 7 are therefore also struck out. The issues posed by the respondents will be considered along with the remaining issues 1, 4, 6 and 8.

The complaint in the Appellants first issue for determination is that the learned Justices of the Court of Appeal did not consider all the grounds of appeal filed by the appellants before them. What they considered, it is contended, are the two original grounds of appeal set out in the notice of appeal dated 23/9/86 and filed on the same day, and that they did not advert their minds to the amended grounds of appeal dated 28/4/87 which contains five grounds of appeal. Both grounds of appeal as set out in the record of appeal, with their particulars, cover 3 to 4 pages thereof. It will not be necessary for a consideration of appellant’s issue 1 to set them out in detail in this judgment. The complaint here is entirely misconceived. As this Court has stated so often, what the Court of Appeal has to consider are not grounds of appeal but issues for determination framed vide Ogbuinyinya v. Okuda (No.2) (1990) 4 N.W.L.R. (Pt.146) 551. These issues may be those framed by either one or both parties or those re-framed, after a consideration of issues as set out and the grounds of appeal filed, by the Court of Appeal. The Court of Appeal is at liberty to reject all the issues framed by the parties and frame its own issues if, in its view, the issues as framed will not lead to a proper determination of the appeal. In the present appeal, the appellants in their brief of argument filed in the Court of Appeal, set out issues for determination which have been set out earlier in this judgment. It is those issues and not the grounds of appeal that the Court of Appeal should address. The judgment of the Court below shows that it fully appreciated this duty because after setting out the claim, and the submission of counsel, the lead judgment of Awogu, J.CA., went on to state thus:-

“The first issue to be resolved in this appeal is the identity of the land in dispute”

Although that issue was not so framed by the appellants, it was raised by the respondents in their brief and considered therein at some length. It was also addressed under their issue 7 by the appellants who submitted that the respondents from their evidence seemed confused as to the “land in dispute”. Under this first issue as posed by it, the lower court considered the salient points of the sub-issues raised under their issues 1, 2 and parts of 3 to 6. Under its second issue of Customary tenancy, parts of appellants issues 3 to 6 were also addressed. The court below therefore covered all the issues raised for determination by the parties. Even though the grounds as framed and the submission thereon are misconceived, a close look at the two sets of grounds of appeal filed by the appellants will show that they really cover identical grounds and raise the same issues. The difference between them is merely as to numbering, length and phraseology, More specifically Grounds 1 and 4 of the amended grounds of appeal alleged not covered by the original grounds of appeal are taken care of by Grounds 1 particulars 3 and 4 thereof, and ground 4 by the first issue considered by the judgment of the Court of Appeal. The answer to the first half of issue 1 framed by the appellants is therefore in the affirmative.

The submission in the second issue is that the court below misapprehended what constitutes the land in dispute when it stated in its judgment that the plaintiffs plan Exhibit A is “a part of the land in dispute”, when from their pleadings and evidence, the plaintiffs asserted that the land delineated red in Exhibit A is the “land in dispute”, paragraph 1 of their Amended Statement of Claim, claims a declaration in respect of-

“…all the piece or parcel of land situate lying and being at Igando in the Ikeja District shown and edged RED on the plan attached hereto and filed herewith”

The plan referred thereto was subsequently admitted in evidence and marked Exhibit A and clearly recognised by the learned trial Judge as the plan of “the land in dispute”. The Statement of the court below complained of, is the second sentence of the part of the judgment where issues began to be considered. Those two sentences with the second and relevant sentence underlined read thus:

“The first issue to be resolved in this appeal is the identity of the land in dispute. Before the litigation commenced, the plaintiffs made Exhibit A which was only a part of the land in dispute”. (Italics mine)

This is an obvious mis-statement by the court below. Exhibit A is not a part, but the whole of the land in dispute. The only sub-issue left for determination is whether this error led to any confusion in the mind of the court below about the case of the appellants.

The treatment by the court of the contradictions/discrepancies in the five plans tendered which followed after the two sentences set out hereinbefore do not suggest any such confusion in his mind. On the contrary they show that the court fully appreciated the issues at stake and what the contest between the parties is all about. What learned Counsel for the appellants has done is merely to lift the “offending” sentence out of its con, and proceed to submit that it has caused a misapprehension by the court below of the appellants case. In this he has failed and the answer to the appellants’ second issue for determination is NO.

Similarly the appellants in their submissions in their brief seem to have shown that the lower court in its judgment did say that Exhibits A, B and F were made by the plaintiffs (respondents here), the first two in 1968 and the last in 1976. Although Exhibit F in the present suit was tendered by the plaintiffs in the present suit (appellants here) at the High Court hearing, appellants counsel has succeeded in showing that the court below wrongly held that Exhibit F was made by the appellants, and that the very same exhibit was tendered and used by the plaintiffs of Igando Community in IK/76/68, and therein tendered by them as Exhibit O. The land verged pink therein was claimed by them as their land. Neither the plaintiff in that suit (i.e IK/76/68), representing the Igando Community, nor the plaintiffs in the present action on appeal, representing the Beku-Onimaba family of Igando community, claimed the land therein verged pink as the limit of their land. The case of these two sets of plaintiffs has always been that the land so verged in Exhibit in this case (Exhibit 0 in IK(76/68) is part only of the total land of Igando community, or the Beku-Onimaba family thereof. The answer to the issue 3 posed is therefore in the affirmative. What now remains to be considered is the effect of this error. Did it, as postulated in issue 4 by the appellants, result in a misplacement of the onus of proof with respect to proof of possession and/or the tendering of a composite plan Did a miscarriage of justice result therefrom or not

After dealing with this issue in five paragraphs of their brief (paragraphs 5.11 to 5.16), the appellants in their concluding paragraph 5.16 set out the harm resulting from this wrong finding as follows-

“It is submitted that the 2 lower courts, having rightfully held that the land in dispute (Exh.A) fell within the plaintiffs’ bigger land (Ex.B) (at p.706) should have held that plaintiffs had discharged the onus on them to posit the land in dispute vis-a-vis their entire land and the finding that they should have tendered a composite plan should have been applied to the defendants whose plans (F and G) contradict those of plaintiffs. (See Elias v. Suleiman (1973) 1 All G N.L.R. (pt.2) 282.

As to the first leg of this submission, no where in his judgment did the court below hold that the area delineated in Exhibit A has not been established as within the greater area claimed by the plaintiffs and delineated in Exhibit B. The area verged in Exhibits F and G are also within the larger area verged in Exhibit B. The land in dispute in Exhibit A is clearly shown in Exhibit B (the South-eastern-comer of it) and the area in Exhibits F and G covered by the land in Exhibit A was testified to by the respondents’ surveyor. Do these facts support the second leg of the submission of the appellants that the finding that the appellant should have tendered a composite plan should have been applied to the defendants whose plans contradict those of the plaintiffs

It is important to find out precisely what the Court of Appeal stated about the production of a composite plan. In his lead judgment Awogu, JCA stated that –

“The introduction of Exhibit B sought no doubt, to cause confusion, as the identical area covered by Exhibits F and G do not agree with the Area covered by B. It is for this reason that a composite plan might have become necessary. Unlike the position in Elias v. Suleiman & ors. (supra), the need for a composite plan is obviated by the identity of the areas shown in Exhibits F and G and, as I said earlier, if any confusion still remained, it was for the plaintiffs to resolve same by a composite plan showing the difference, if any, between their Exhibits A, B. and F” (Italics mine).

In short, the learned appellate Justice was of the view that a composite plan is not necessary in this case, but if it is, then it is for the appellants to produce one to resolve any differences arising between their plans. The submission that he made a finding that the appellants should have tendered a composite plan is not correct. Although this should dispose of the submission in the second leg, I propose to consider briefly the position as to the production of a composite plan.

It is the contention of appellants that once the plaintiff has produced a plan claiming ownership of a bigger area of land, which encompasses a smaller area claimed by the defendants as belonging to them, the onus of proof of ownership of the larger area shifts to the defendants, to establish that they own the smaller area. For this proposition the case of Elias v. Suleiman (1973) 1 All N.L.R. (Pt.2) p. 282 is relied upon. That case is not an authority for any such wide proposition as will be shown briefly. The head notes to the report cited reads:-

“Claim for declaration of title to land, damages for trespass, and injunction. Land sold and conveyed to the plaintiff by Onikosi families who were found by trial Judge to be the owners of land in dispute. Trial Judge rejected evidence of sale to defendants either by same families or by those claiming through them. Defendants produced only purchase receipts but were unable to produce any conveyance, or plan (made at time of sale) of the area sold to each of them. Area claimed by each of them on the basic of sale could not, therefore, be ascertained: Plaintiff non-suited on the ground that plaintiff did not submit a composite plan showing the area claimed by each of the defendants.

Held on appeal (1) that the onus is on the defendants, and not on the plaintiff, to show on their own plans the portions of the land which they are claiming and to relate these portions to the larger area claimed by the plaintiff, (ii) that since the defendants have failed to do this the plaintiff, who has clearly proved his grant to the satisfaction of the learned trial judge should not have been non-suited”. (Italics mine)

It will be seen from this, that the onus of proof to produce a composite plan was held to be on the defendants because, and only because the trial Judge had (1) found that the larger land in dispute claimed by the plaintiffs to belong to them had in fact been properly conveyed to them by the landowners – the Onikoro and Onikosi families (2) rejected evidence by the defendants of sale to them of the smaller portions claimed by them either by those same families and/or others claiming through them. The plaintiffs having firmly anchored their claim on the families from whom the defendants also claimed, the Federal Supreme Court had no difficulty in applying the dicta in Thomas v. Preston Holder (1946) 12 W.A.C.A. 78 which states that –

“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 his title has been established, then the onus is upon the defendant to show that his own possession is of such nature to oust that of the original owner…….”

In the instant case on appeal, the appellants (as plaintiff) had not established any title to the land shown in Exhibit B – or traced same to any established owner thereof, from whom they claim. Furthermore the respondents'(as defendants) “title” to the land they “claim” (Exhibits F and G refer) is not so defective as to be regarded as devoid of merit. The case of Elias v. Suleiman (supra) is therefore not apposite. The normal onus of proof in a claim for a declaration of title is still applicable, to wit, that the onus is on the plaintiffs to prove their case and in so doing they must rely on the strength of their case and not on the weakness of the defendants, whose duty is only to defend the action and no more vide Kodilinye v. Odu (1935) 2 W.A.C.A 336; Iyaji v. Eyigebe (1987) 3 N.W.L.R. (Pt.61) 523; Obiaso v. Okoye (1989) 2 N.W.L.R. (Pt.119) 80; Famuroti v. Agbeke (1991) 5 N.W.L.R. (Pt. 189) 1. The onus is therefore squarely on the appellants here to prove their title to the area verged red in Exhibit A, which is the limited area in dispute; and which also is enclosed by both Exhibit B, the whole land of the appellants; and Exhibits F and G, showing all the land of the respondents. The case of Elias v. Omo-Bare (1982) 5 S.C. 25 is more apposite, because it was there decided by the Supreme Court that, the question of a composite plan did not even arise as was wrongly found by the trial Judge who, also relying on Elias v. Suleiman (supra), had placed the onus on the defendants to produce one. It is also my finding in this case, and in this I agree with the submission of the respondents, that the evidence of P.W.2 and D.W.2, the 2 surveyors (one called by each side) made a composite plan unnecessary. For the avoidance of doubt, there is no merit in the submission of the respondents that the case of Elias v. Omo-Bare (supra) “corrected” the position as stated in Elias v. Suleiman (supra). The latter decision is still a valid authority given the facts and circumstances under which it was decided.

I now proceed to consider Issues 7 and 8, which for convenience, I will restate as set out earlier:-

“7. Did the Customary Court have jurisdiction to determine the claim in Exhibit J and if not, can the proceedings and judgment therein be relied upon as estoppel on the facts of this case

8. Assuming that Exhibit J is valid (which is denied) can the judgment be relied upon as creating estoppel against the plaintiffs, in any event, having regard to the facts of this case”

In respect of issue 7, appellant counsel sought leave of this court to raise this particular point for the first time, in this case, before us. This application was refused in open court and a brief ruling delivered with an indication that fuller reasons for the refusal will be given in this judgment.

The circumstances in which the Supreme Court will entertain or refuse an application to raise new points of law for the first time before it have been considered at length in the case of Attorney-General of Oyo State v. Fairlakes Hotel Ltd (1988) 5 N.W.L.R. (Pt.92) 1., where the general principle was stated that

“an appellant will not be allowed to raise on appeal a question which was not raised or tried or considered by the trial court, but where the question involves substantial point of law, substantive or procedural and it is plain that no further evidence could have been adduced which would effect the decision on them, the court will allow the question to be raised and the points taken and prevent an obvious miscarriage of justice. “Vide Akpene v. Barclay Bank (1977) 1 S.C. 47; Shonekan v. Smith (1964) 1 All N.L.R. 168.

Such a point cannot be decided in favour of an appellant unless this court is satisfied beyond doubt –

“(a) that it has before in all the facts bearing on the new contention as completely as if it had been raised in the lower court (i.e. court of first instance), and

(b) that no satisfactory explanation could have been given in the court below if it had been so raised”. Vide Fadiara v. Gbadebo (1978) 3 S.C. 219.

Furthermore this court will grant leave to a party to raise a point not raised in the court below where the point of law raised discloses ex facie that that court has no jurisdiction vide Okpaku v. Okpaku (1947) 12 W.A.C.A. 137. But it will refuse leave to raise a point not raised in the court below where (a) the point of law raised introduces a new line of defence completely different from the issues fought by the parties in the court below vide EJiofodomi v. Okankwo (1982) 11 S.C. 74;

(b) all the materials necessary for the court to decide the point of law raised are not on the record vide Ayoola v. Ogunjimi (1964) 1 All N.L.R. 188; Awote v. Owodunni (1986) 5 N.W.L.R. (Pt.46) 941; Uor v. Loko (1988) 2 N.W.L.R. (Pt.77) 430; (c) the point of law could have been raised at the trial in the court of first instance but was not raised vide C.F.A.O v. Onitsha Industries Ltd (1932) 1 N.L.R 102; (d) if the point was raised in the courts below it could have been effectively answered by appropriate evidence, and where the court of first instance would be in a more suitable position to deal with the point of law raised vide Fadiora v. Gbadebo (supra).

Although the point sought to be raised here is ex facie one of jurisdiction, it does not concern the jurisdiction of this court, but that of a court which sat over a decision, the proceedings of which (Exhibit 7) was tendered in the court of first instance by the respondents, without any objection by the appellants. What the appellants are seeking here is to oppose Exhibit J (not having done so either in the High Court or the Court of Appeal), by introducing a new line of defence completely different from the issues fought by the parties in the court below vide Ejiofodomi v. Okonkwo (supra). It has not been shown by counsel that this point could not have been raised at the High court or the Court of Appeal: Ude Ogbodu v. The State (1987) 2 N.W.L.R. (Pt.54) 20. Respondents’ counsel has also submitted in their brief, that further evidence would be required to decide the issue raised, because in the case of a customary court, the warrant of the court is the only evidence of the extent of jurisdiction vide Fadiora v. Gbadebo (supra).

In reply to this submission appellants counsel has submitted that the jurisdiction of the relevant customary court has already been spelt out by the law- Sections 19(a) and 20; and Schedule III of the Customary Courts Law (Western Region) 1959. I agree with respondent’s counsel that, in order to leave the issue free of any doubt, the warrant of the relevant Customary Court will need to be produced, and to do this, evidence has to be led. Given the above circumstances and the decisions of this court, our refusal to entertain this point of law at this stage is proper; and therefore the first leg of issue 7 cannot now be entertained.

Did Exhibit J create an estoppel against the appellants in this case It is trite law that to constitute estoppel against the appellants the parties in Exhibit J – Alimosho Customary Court Suit No.47/69 – and in the present action (Lagos High B Court Suit No. IK/21/67) must be the same, the cause of action or issue in both actions must be the same and must have been litigated to finality vide Iyowuawi v. Iyowuawi (1987) 4 N.W.L.R. (Pt.63) 61. “parties” in this con also include the “privies” vide Fadiora v. Gbadebo (supra); Banishebi v. Faleye (1987) 2 N.W.L.R. (Pt.54) 51: Udo v. Ohot (1989) I N.W.L.R. (Pt.95) 59 at 61. Respondents here submitted that there is no evidence that Exhibit J relates to the land in dispute.

A close reading of Exibit J however belies this submission. I agree with the finding of the court below that the rent for which judgment was entered was in respect of part of the land presently in dispute. The main sub-issue to decide here however, is whether the parties are the same in both actions. There is no doubt that the plaintiff in Exhibit J is the 2nd defendant/respondent in the present case; and that the defendant in Exhibit J is a member of the family of the present plaintiffs/appellants.

The question that obviously arises is whether he can be deemed a privy of the appellants in this case, so that Exhibit J can bind them. The action was not defended in a representative capacity i.e either on behalf of the Beku-Onimaba family of Igando or of the whole Igando Community. That this is so is shown by a reading of Exhibit J and the fact that the present action taken and defended in a representative capacity, was already pending in the High Court.

This cannot, as the court below stated in its judgment, be a reason why the capacity in which the parties sued or defended is unimportant. On the contrary it shows capacity to be relevant and important. I am satisfied therefore that the defendant in Exhibit J defended the suit in a personal capacity and cannot therefore bind either his immediate family and/or the community (Igando) to which he belongs. Vide Okafor and Ors v. Obiwo and Ors (1978) 9/10 S.C. 105(122); Ajeigbe v. Odedina (1988) 1 N.W.L.R, (Pt.72) 584 (598).

The finding that Exhibit J constitutes estoppel against the appellants is therefore wrong. Rufai Ogunbewon is personally bound by that judgment, and because he is an important member of the appellants’ family and the action is in respect of part of the land in dispute, Exhibit J is a relevant fact in determining the possession or ownership of the land in dispute, particular in establishing whether or not the respondents have exercise any act of possession/ownership thereto. The learned trial High Court Judge so treated it in coming to the conclusion that it constituted an admission that the Ogunbewons were the tenants of the defendants.

Exhibits C2 and O are copies of the High Court judgment in suit No. IK/76/868 delivered on 30/4/74 in which the Igando community, represented by Amusa Dada and 2 Ors sued Bakare Sodeke & 5 Others, claimed title to land, much larger in area than and compassing the land presently in dispute. The 1st to 4th defendants belong to the Beku-Onimaba family of Igando whilst the 5th and 6th defendants are members of the Osumba family of Ikotun village (community).

They are in fact the 2nd and 4th defendants/respondents in the present case on appeal. The complaint in the 10th issue for determination is that the court below held that those judgments constituted res judicata against the present appellants and in favour of the respondents. The main reason for this conclusion by that court, is that whilst the present parties were co-defendants in Exhibits C2 and O, they had conflicting interests and that judgment therefore would constitute res judicata between them. It cited as authority for this proposition the case of Ojelade v. Bada & Ors (1951) 20 N.L.R. 28. Its reasoning is set out in its judgment as follows:-

“The plaintiffs therein were suing on behalf of the Igando Community, and the present plaintiffs also claim the same land, this time as representing the Beku-Onimaba family of Igando. Thus, a group representing Igando community sued another group from Igando and Ikotun people, with each of the parties claiming title to the land in dispute.

The plaintiffs of Igando lost to both defendants, but the first group of defendants now sues as Beku-Onimaba Family of Igando, claiming the same land as against the Ikotun people, without showing how the land in Exhibits O, C2 and C3 was different from the land now in dispute. Clearly there must be an end to litigation. Thus, the plaintiffs are estopped……….by the res judicata arising from Exhibit C2, O and C3”.

In Ojelade v. Bada & Ors (supra) both the plaintiff and defendants were claimants (co-defendants) in a compensation suit taken out by the Government to decide who was entitled to compensation for a piece of land acquired by it which was divided into various plots. In that action, the court decided in respect of a particular plot, that the defendants and not the plaintiffs were entitled to compensation therefore, and dismissed the plaintiffs claim. When therefore the plaintiff sued the defendants claiming compensation for the parcel of land, he was met with a plea of res judicata which the court upheld. This case is obviously not on all fours with the present case. In Ojelade’s case the issue as to ownership of the plot in question and therefore compensation thereto was decided with finality in favour of the defendants. In the present case, there was no finding, let alone a judgment, that either of the co-defendants (who are the parties in the present suit) was the owner of the land in dispute. Even though their interest, in IK/76/68 conflicted, there was no finding/decision in favour of the land in dispute in favour of one of them against the other. Exhibits O, C2 and C3 (which is the Supreme Court judgment on appeal from IK/76/68) therefore do not in my view constitute res judicata in favour of the respondents. The Court below also therefore erred in so holding. Did this finding occasion a miscarriage of justice I do not think so because, soon after this finding, the court below in its judgment concluded by agreeing with trial Judge that the plaintiffs did not prove their claim before him. The decision of the court below did not turn on the res judicata finding and the trial Judge did not rely on it. The specific objection taken by the appellants in issue 9, to the effect that res judicata with regard to these exhibits was not pleaded by the respondents either in the court below or in the High Court, and should therefore not have been taken suo motu by the court below, without hearing the parties, is also well taken. Vide Amawo & Ors v. Attorney-General, North Central State & Ors (1973) 6 S.C. 47; Chellarams & Sons v. G.B Ollivant Ltd. (1944) W.A.C.A 77; Ajide v. Kelani (1985) 3 N.W.L.R. (Pt.12) 248.

Issues 5, 6 and 11 really turn on the facts of the case on the appeal, if the learned trial judge was right in his judgment that the appellants have not succeeded in establishing their claims before him, and the court below was also right in concurring with that decision, that should be the end of the matter. As far as the principle in Kojo v. Bonsie (supra) is concerned, the learned trial judge did not find the traditional evidence as led by either side conclusive, as rendered, and so preferred to test same by reference to acts of ownership/possession, in recent times. The appellants, on whom the onus of proof lay, failed to pass the test, and consequently their claims were dismissed. In support of these three issues the appellants in their brief have tried very hard to argue that the appraisal of facts by the trial judge was in error and so also was the confirmation thereof by the court below. Some errors by the trial Judge were raked up, but they were minor. They were not substantial enough, either taken singly or together, to warrant a reversal of the judgment against the appellants vide Olubode v. Salami (1985) 2 N.W.L.R. (Pt. 7) 282; Onojobi v. Olanipekun (1985) 4 S.C. (Pt. 2) 156 at 163. The attitude of this court when faced with concurrent findings of fact by the High Court and the Court of Appeal has been stated times without number. It is that such findings will not be upset unless it is shown on the record that the findings are not justified by the evidence and that the error in arriving at such findings has occasioned a miscarriage of justice, in other words, such findings must be perverse vide Balogun v. Amubikanhun (1989) 3 N.W.L.R. (Pt. 107) 18; Akeredolu v. Akinremi (1989) 3 N.W.L.R. (Pt.108) 164; Ajeigbe v. Odedina (1988) 1 NWLR (Pt. 72) 584; Famuroti v. Agbeke (1991) 5 NWLR (Pt. 189) 1. No such circumstances have been shown by the appellants in this case to justify this court interfering with the concurrent findings of the two courts below.

The findings of fact by the learned trial judge set out herein before are impeccable and in my view are decisive in this case. The decision of the court below that he was “right in holding that the plaintiffs did not prove their claim before him” is upheld by me.

Accordingly this appeal must be and is hereby dismissed with costs to the respondents assessed at N1,000.00 only.A.

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SC.184/1989