Ojo Ajao & Ors. V. Opoola Alao & Ors.(1986)

LawGlobal-Hub Lead Judgment Report

KARIBI-WHYTE, J.S.C

On the 30th October 1978, Apara J. at the Oyo High Court dismissed the claim of the Plaintiffs against the defendants for (1) Declaration of Title under native law and customs to all that piece or parcel of land situate lying and being at Lejin’s Compound Isale Ladogan, Iseyin.

(2) The sum of N200 (Two hundred naira) being damages for continuing trespass committed by the Defendants on the said land.

(3) Injunction restraining the Defendants, their servants, Agents, and/or anyone claiming through them from committing any further act of trespass on the land.

The case of the Plaintiffs as disclosed in their statement of claim and evidence before the Court was that the land in dispute was granted to their ancestor Lejin, absolutely by the Aseyin. Olugbile of Iseyin on the arrival of Lejin at Iseyin from Oshogbo. Plaintiffs, who are the descendants of Lejin have always occupied this land by living and farming on it.

They granted a portion of this vast land so allocated to them to Olugbemi the ancestor of the Defendants when he arrived Iseyin. It is their case that the land in dispute is not part of the portion of the land their ancestor Lejin granted to Olugbemi the ancestor of the Defendants. Plaintiffs in their statement of claim pleaded and also stated in evidence in court at the trial that unknown to and without the consent or approval of the head of Plaintiffs family a member of the family instituted an action in Suit No. 481/67 against the defendants family in the Iseyin Grade “C” Customary Court in 1967. Judgment was given in favour of the Defendant family. An appeal to the Oyo Grade A Customary

Court in Suit No.15/70 against the judgment was dismissed. The land in dispute is claimed by Plaintiffs to be in Lejin’, compound, Isale Ladogan, Iseyin. According to their case it was Olugbile, the Aseyin of Iseyin at the time who granted all the land in Isale Ladoge to Ladigbolu Aiyelara, the Bale of Ladogan and it was Ladigholu Aiyelara who in compliance with Aseyin Olugbile’s instruction who granted the area occupied by Lejin including the disputed portion to him. They claimed to have exercised acts of ownership by farming on the land. They have been in exclusive possession and have been responsible to the health authorities for the sanitation of the area. They also claim to have their Orishala shrine on the land. They had planted ‘Odan’ and Sekeseke trees on the land in dispute.

The Defendants denied the averments of the Plaintiffs, and went on to state in their statement of defence their root of title. They denied that their ancestor Olugbemi derived his title to the land which he occupied and where the Defendants are from Lejin Plaintiffs ancestor. Their case is that their ancestor Olugbemi had an absolute grant of the land he occupied at Ladogan Quarters including the disputed portion from Aseyin Olugbile, through Bale Jinadu. They claim that the earth drain is their boundary with the Plaintiffs. Defendants claim to have exercised uninterrupted acts of ownership in respect of the land by the erection of dwelling houses, corn mill shops, and granting leases to persons. The Defendants pleaded and relied upon judgments given in their favour in an action between a member of the Plaintiff’s family and the Defendants. The question in dispute in respect of which issue was joined is the ownership of a piece of land verged yellow and marked A & B on plan No.LL 8017 tendered as Exhibit B in the trial. It is fairly clear from the pleadings and evidence in support that both parties trace their root of title to the Aseyin of Iseyin, Oba Olugbile. Whereas Plaintiffs claim that it was Bale Aiyelara who gave the land including the portion in dispute and that it was they who granted the land occupied by Defendants minus the portion in dispute. Defendants claim to have derived their title from a grant from Oba Olugbile, the Aseyin of Iseyin through Bale Jinadu who was the Bale Ladogan at the time. The grant included the portion in dispute. It is obvious from the case of the parties that they both claim to have derived title from the same root. The burden is clearly on the Plaintiffs who claim that Defendants derived their title from them to establish that fact.

Plaintiffs admitted in their statement of claim and in evidence before the trial Judge that judgment was given against a member of their family in an action claiming a declaration of title in respect of the portion in dispute. The contention was that the action was without the consent and authority of the head of the Plaintiffs family. Counsel for the Plaintiff tendered the judgments both in the Court of first instance and on appeal and contended that the judgments were void and could not sustain the plea of res judicata.

After a careful consideration and evaluation of the evidence before him, the learned trial Judge dismissed the claim of the Plaintiff/Appellants. The grounds upon which the trial Judge relied for dismissing Plaintiffs/Appellant’s claim seems to me not only that they failed to establish their claim on the traditional evidence adduced on their behalf, but also that the defence of res judicata relied upon by defendants was valid. On the-traditional evidence adduced the learned Judge said, “The defendants are saying that they own the areas verged yellow in Exhihit Band Fasasi Aremu has testified that this is so. Again, the defendants are saying that the earth drainage immediately above the area verged yellow and marked A in Exhibit 8 is their boundary with the plaintiffs and Fasasi Aremu has testified that this is so. It is my view that the defendants can rely on the evidence of Fasasi Aremu to support their own case in this respect.” The trial Judge also considered the effect of Exhibits “A” & “C”, judgments in earlier proceedings between members of the families of the parties in this case and tendered in evidence by Counsel for Plaintiffs/Appellants and the submission that the judgments being void do not operate as estoppel per rem judicata, and said, “In any case, my view is that since the proceedings in exhibit A were not before me on appeal, Mr. Alawode could not attack their validity. A Counsel cannot address the Court on the validity or otherwise of a judgment which has been tendered in Court merely as an exhibit when no appeal has been lodged against that judgment. This was the decision in Abegunde v. Lanlokun (1958) W.N.L.R.69.”

The learned trial Judge thus rejected the submission of Counsel for the Plaintiff/Appellant and held that the judgments operated as estoppel per rem judicata, with respecl to the portion of the land in dispute. He held that since the family of the Plaintiff in Suit No. 481167 and 15170 which is the same family in this case, knew of the litigation in court and declined to show any interest, as was held in Onisango v. Akinkunmi & 5 Ors. (1955156) WRNLR.39, they were bound by the result of the proceedings. He therefore concluded as follows:

“Having considered the pleadings, the Law as applicable in this case, and the totality of the evidence before me, I believe that the areas verged yellow and marked A and B in Exhibit B belong to the Defendants. The claims of the plaintiffs therefore fail and are hereby dismissed.”

Plaintiffs/Appellants appealed to the Court of Appeal. Counsel filed ten grounds of appeal alleging errors of fact, mixed law and fact and law. The grounds of appeal 1, 2, 6, 7 and 10 challenged the findings of fact made by the learned trial Judge and contended that there was no basis for a finding for the Defendant/Respondent. The Court of Appeal after a careful consideration agreed with the findings of fact of the learned trial Judge.

The Court held and I entirely agree that the learned trial Judge did not merely make a finding on the credibility of Fasasi Aremu, but also found that plaintiffs/appellants had not made out a case upon which their action ought to succeed. The gravamen of grounds 2, 6, 10 of the grounds of appeal argued before the Court of Appeal was that the Respondents have failed to prove what they pleaded in their statement of defence and accordingly were not entitled to judgment.

It was contended in the Court below that respondents failed to prove their root of title. Surely this is not the ground on which issue was joined. The issue before the Court is that Plaintiffs/Appellants claim the land in dispute and that Defendants/Respondents were trespassers. The onus is on the Appellant to establish their claim, to title to the land in dispute. It clearly is not for Respondents to prove their title. On the grounds of appeal 1, 4, 5, 8 which related to the holding by the trial Judge that Appellants were estopped by an earlier judgment to litigation between a member of Appellants family and respondents with respect to the land in dispute it was contended by appellants that the judgments relied upon for the defence of estoppel per rem judicata were void and of no effect and could not support the defence. The Court of Appeal rejected the contention and agreed with the learned trial Judge that the judgments impugned as void were not on appeal before it, and accordingly were subsisting judgments which remain binding as between the parties and appellants were therefore estopped per rem judicata.

The Court of Appeal also considered ground 3 which was a complaint against the judgment of the learned trial Judge that Appellant/Plaintiff was precluded from addressing the Court on the validity of a judgment tendered in court merely as an exhibit, which judgment is not subject matter of an appeal before the court. After referring to section 52 of the Evidence Act, and discussing the cases of Adetipe v. Amodu & Ors; Abegunde v. Lanlokun (1958) WNLR.69; Badaar Bee v. Habib Marican Noordin & Ors. (1909) A.C. 651 and distinguishing Padiora & Anor. v. Gbadebo & Anor. (1978) 3 S.C. 219 upheld the learned trial Judge and said,

“…neither this Court nor the Court below is sitting/sat on appeal in the two cases impugned by learned Counsel for appellants (Exhibits A & C). This ground of appeal lacks substance.”

On the whole the Court of Appeal having found no merit in any of the grounds of appeal argued, unanimously dismissed the appeal in its entirety and affirmed the judgment of the trial Judge.

The appeal before us is against the judgment of the Court of Appeal. There are seven grounds of Appeal. Because of the prolixity of the grounds of appeal, I will merely summarise the content rather than reproduce them in extenso. The grounds of appeal without the particulars of error alleged are as follows:

Grounds of Appeal:

1. “The learned Justices of the Court of Appeal erred in law in holding as follows in their lead judgment:-

“Further, it has been decided that even if earlier decisions in favour of the defendants in a given case were the result of an excess of jurisdiction a court can not remedy the situation in the new proceedings to correct or review an error made in the exercise of such excess jurisdiction unless it is acting in its appellate or corrective jurisdiction.”

2. The learned Justices of the Court of Appeal erred in law by failing to direct their minds sufficiently or at all to the decision in OTUAHA AKPAPUNA & ORS. AND OBI NZEKA II & ORS. (1983) 7 S.C. 1 and they consequently came to a wrong conclusion when they held that Fasasi Aremu’s evidence that the parcels of land in dispute had been granted to the defendant’s ancestors by the Plaintiff’s ancestor, removed the substratum off the Plaintiffs case.
3. The learned Justices of the Court of Appeal erred in law by failing to hold that the learned trial Judge was wrong to have dismissed the Plaintiffs’ claims upon the evidence of Fasasi Aremu despite his finding that the other witnesses for the Plaintiffs gave good evidence and since such good evidence was sufficient to sustain the claims of the Plaintiffs.
4. The learned Justices of the Court of Appeal erred in law by failing to hold that the defendants impliedly admitted the allegations of facts contained in paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 20, 30 and 31 of the Statement of Claim which they in paragraph 2 of the Statement of Defence averred that they were not in a position to admit or deny and their Lordships were also wrong to have refused to hold that the third defendant’s evidence, that it was Aseyin Olugbile who granted the parcels of land in dispute to their ancestors was at variance with the defendant’” pleadings that it was Bale Jinadu, Bale Isale Ladogan, who made the grant to their ancestors.
5. The learned Justices of the Court of Appeal erred in law and on the facts in holding that the proceedings of Iseyin Grade ‘C’ Customary Court in Suit No. 481/67 and that of Oyo Grade’ A’ Customary Court in Suit No. 15/70 could not be impugned as hath proceedings were not an appeal before neither the trial High Court nor the Court of Appeal and they were therefore wrong to have confirmed the trial High Court’s decision that hath proceedings constituted estoppel per rem judicata in this case.
6. The learned Justices of the Court of Appeal misdirected themselves in law and on the facts when they said as follows in their lead judgment:-

(i) “The facts of the case are that it was plaintiffs’/appellants assertion that the land in dispute they referred to as being, it Lejin’s Compound, Isale Ladogan in Iseyin was granted to their ancestors absolutely by the Aseyin of Iseyin on their arrival thereto from Oshogho under native law and custom and that they had ever lived and farmed on that large tract of land.”

(ii) “The defendants/respondents on their own part averred that their ancestor called Olugbemi first came to Iseyin from Oshogbo but that he obtained an absolute grant of land at Ladogan Quarters from the Aseyin through his Bale called Jinadu as required by custom after his first short stay at Elepo Compound.”

7. The learned Justices of the Court of Appeal misdirected themselves in law and on the facts when they held as follows in their lead judgment:-

“Nor could the plaintiff on the pedestal of traditional evidence have succeeded in judgment on the principle laid down in Alade v. Awo (supra). This is because they were unable to show enough proof of such evidence to he so entitled.”

It is pertinent to point out that the real issue before the trial Judge and which was affirmed on appeal by the Court of Appeal was whether on the pleadings and the evidence before the Court Appellants established the claim that having derived title from their ancestor the land in dispute belonged to them.

As I have already stated above, the grounds of appeal could he summarized as follows:

Grounds 1 & 5 relate to the consideration of the defence of estoppel per rem judicata by the Respondents founded on an earlier judgment in respect of the land in dispute against a member of family of appellant. Appellant contends the judgments are void and incapable of establishing estoppel per rem judicatam

Grounds 2, 3, 4, 6, 7 relate to the evaluation of the evidence adduced by the Appellants in support of their claim to the land in dispute, and the law relating thereto.

The Appeal has been argued before this Court on these issues and on grounds of appeal which are quite similar to the grounds of appeal relied upon in the Court below. Both Counsel for the Appellants and Counsel to the Respondents have filed briefs of argument on which they relied and expatiated in their arguments before us. Counsel for the Appellant has formulated the issues for determination as follows:-

1. whether the validity of the decision of Iseyin Grade “C’ Customary Court in suit No. 481/67 and the decision of Oyo Grade “A” Customary Court in Suit No. 15nO could he raised and pronounced upon in this case;
2. whether the Court of Appeal was correct in holding that Fasasi Aremu’s evidence that the parcels of land in dispute had been granted to the defendant’s ancestors by the ancestor of the plaintiffs removed the substratum off the plaintiffs case;
3. whether the Court of Appeal was right to have affirmed the trial High Court’s dismissal of the plaintiffs claims inspire of the trial High Court’s observation that everyone of the witnesses for the plaintiffs gave good evidence in his examination in chief and when only one of the witnesses was shown to have contradicted himself under cross-examination:
4. whether the Court of Appeal was right to have in effect side-tracked the decision of the Supreme Court in Lewis & Pear (N.R.1) Ltd. v. Akhimien (1976) 7 S.C. 157;
5. whether the Court of Appeal was in error as to what the case of each of the parties was when it said that both parties claimed that they derived title to the parcels of land in dispute through a grant from the Aseyin:
6. whether the Court of Appeal was correct in effect holding that the plaintiffs were not entitled to succeed upon the traditional evidence led by them.”

Counsel for the Respondents having not formulated issues for determination, would appear to have accepted the formulation by counsel for the Appellant. The formulation of the issues stated above is as prolix as the grounds of appeal. Concisely stated only the following issues would seem to me to fall for determination in this appeal. These are:

(a) whether the Court of Appeal was right in holding that the validity of the judgments in Suit No. 481/67 and Suit No.15/70 was not open to challenge and could not be raised and pronounced upon in this case:

(b) whether the Court of Appeal was right in affirming the judgment of the trial court that Appellant did not establish their claim to the land in dispute on the evidence before him.

In my opinion, on the determination of these two issues rest the correct determination of the issue at stake in this appeal. I think it is convenient to dispose of summarily grounds 2, 3, 4, 6, 7 of the grounds of appeal challenging the concurrent finding of facts in the two courts below. The Court of Appeal has affirmed the findings of fact by the learned trial Judge that appellant has failed to establish in his traditional evidence that the land in dispute belongs to them through Lejin their ancestor.

It is well settled in our law that matters relating to evaluation of facts, assessment of evidence and consideration of veracity in the testimony of witnesses are essentially and intrinsically questions of fact to be determined primarily by the Court of trial – see Kisiedu & Ors. v. Dompreh & Ors. (1935) 2 WACA.253, Fatoyinbo v. Williams (1956) 1 FSC.37, Akinleye & Anor. v. Eyiyiola & Ors. (196R) NMLR.92, 95, Folorunsho v. Adeyemi (1975) NMLR.128. It has long been settled that proof of title to land where the root of title is traced to ancestors, are entirely questions of fact to be established by evidence – see Kojo II v. Bonsie (1957) 1 WLR.1223; Ekpo v. Ita 11 NLR.68. Where there are specific findings of fact in the Court of trial in respect of such issues, a Court on appeal will be most reluctant and indeed seldom will interfere with such findings – see Ometa v. Numa (1934) 11 NLR.18.

In this case there have been findings of fact against the Appellants on the traditional evidence relating to their ownership of the land in dispute in the High Court and the Court of Appeal. It has not been shown that the error is apparent from these findings. I do not think therefore that there is any ground for interfering. – see Chinwendu v. Mbamali (1980) 3-4 SC.31, Ibodo v. Enarofia (1980) 5-7 S.C.42. The grounds upon which this can interfere with the findings of the Court below have also been described in several decided cases. These rules have been faithfully followed in our courts – see Onowan & Anor. v. Iserhein (1976) 1 NMLR.263; Kale v. Coker (1982) 12 SC.252.

The trial Court has in this case found that Plaintiff/Appellant has failed to prove that the land in dispute was granted to his ancestors by the Aseyin of Iseyin, and accordingly failed to prove his root of title. The Court of Appeal accepted that finding as correct and dismissed the appeal. There are therefore concurrent findings of fact on the issues of whether or not Appellant has established title to the land in dispute.

Counsel to the Appellants has repeated before us precisely the same arguments which he put forward in the Court below. In his brief of argument he has contended that the Respondents did not prove their case since the evidence in court did not support their pleadings. He argued that paragraph 5 of the statement of defence was to the effect that Respondents derived title to the land in dispute through a grant from Jinadu who was a former Bale of Isale Ladogan. He submitted that they denied that they derived title to the disputed land from Appellant’s ancestors. Counsel to the Appellant’s argument is a reaction to the finding by the learned trial Judge which was accepted by the Court of Appeal, that the evidence of Fasasi Aremu, the incumbent Bale Ladogan, and Appellant’s crucial witness at the trial, during cross-examination that the land in dispute was part of the land granted to Respondents ancestor by Appellant’s ancestors; knocked the bottom out of the case of the Appellant.

His contention was that since that evidence was not supported by the pleadings, it went to no issue and should be ignored. Counsel relied on Akpapuna & Ors. v. Obi Nzeko & Ors. (1983) 7 S.C.1. On his part, Counsel for the Respondents submitted that Aseyin Olugbile was the owner under native law and custom of all land at Isale Ladogan. Counsel accepted the well settled proposition that a party must succeed on the strength of his own case and not on the weakness of his opponent’s.

He submitted that the trial Court believed the evidence of Fasasi Aremu on the point in issue and the Court of Appeal had no reason to alter the finding. Counsel submitted that there having been concurrent findings of fact on the issue, this court should be reluctant to reverse such findings. The cases of Otubu & Ors. v. Guobadia & Ors. (1984) 10 S.C.130; Keta &Anor. v. Onikoro & Ors. (1984) 10 S.C.265 were cited and relied upon.

It seems from the contention of Mr. Alawode for the Appellant, that he assumes that both parties were not tracing their root of title to the same grantor, i.e. Aseyin of Iseyin. He erroneously assumed that because Respondents pleaded in paragraph 6 of their statement of defence as follows:

“The defendants became the absolute owner under native law and custom of Iseyin of the area of land mentioned in paragraph 5 above by absolute grant from Bale Jinadu who was the Bale Ladogan then through the intervention of Oba Olugbile, the then Aseyin of Iseyin.” (see p. 10 of the record of proceedings). Their contention was that the grant to Respondents was from Bale Jinadu and not from Oba Olugbile. This is clearly not the case. The evidence that the land occupied by Respondents was granted to them by Oba Olugbile, the Aseyin of Iseyin, was given by 3rd Defendant who stated in his evidence in chief as follows:

p.19 “My ancestor Olugbemi came from Ogbomosho to Iseyin and stayed at EJepo’s compound. His relations later joined him there. Then on request Aseyin Olugbile granted him this land in dispute. The Aseyin then handed my ancestor over to Jinandu the Bale of Ladogan to look after him.”

It is obvious from this evidence which is supported by paragraphs 6-15 of the statement of defence that Respondents are claiming that their title was derived from a grant by Oba Olugbile, the Aseyin of Iseyin. This is clearly in contradiction with the contention of Mr. Alawode that Respondents claim to derive their title from Bale Jinadu. It also does not support the contention that they derived their title from a grant by Lejin, which the evidence of Fasasi Aremu, Appellant’s witness suggests. The evidence of 3rd respondent is clearly supported by paragraph 4-14 of the statement of defence. I agree with Counsel for the Appellants that the view of the learned trial Judge which was accepted by the Court of Appeal, that the evidence of Fasasi Aremu, Appellant’s witness that the land in dispute was given to the Respondents by the ancestor of the Appellants had knocked the bottom out of the case of the Appellants is clearly erroneous. Appellants never claimed that their ancestor made such a grant, and Respondents denied deriving their title by grant from Appellants ancestor. It is not an issue between the parties that the land in dispute was at any time granted to Respondents by Applicants. The claim by the appellants is that the land in dispute is not part of the portion granted Respondents by the Appellants. The Respondents contention is that they do not derive title to any land from the Appellant. The evidence that the land in dispute was granted to Respondents by Lejin, the Ancestor of the Appellants was clearly not the case of the Appellants. It is well settled that where the evidence adduced does not support the case of the party and is irrelevant to the issues or issue joined in the case, as this clearly was, such evidence goes to no issue and could be properly ignored – see Ochonma v. Unosi (1969) NMLR 325: Ogiamen v. Ogiamen (1967) NMLR.245. In the circumstances, I do not see how appropriate it was to come to the conclusion that such evidence had knocked the bottom out of the case of the Appellant. Accordingly the learned trial Judge was in error when he said, “… the defendants can rely on the evidence of Fasasi Aremu to support their own case in this respect.” – see NIPC Ltd. v. Thompson Organisation Ltd. & 0rs. (1979) NMLR.99: George & Ors. v. Dominion Flour Mills Ltd. (1963) 1 All NLR. 71; Emegokwue v. Okadigbo (1973) 4 S.C.113. The issue before the Court was for Appellant to satisfy the trial Judge by evidence of traditional history, acts of possession and exercise of ownership, evidence of contiguous owners that the land in dispute was granted to Appellants and not to Respondents by the Aseyin of Iseyin – see Awo v. Alade (1977) 5 S.C.40; Kodilinye v. Odu (1935) 2 W.A.C.A 336.

The learned trial Judge found that the Respondents own the disputed area even on the evidence of Fasasi Aremu, appellant’s crucial witness. Even if it is conceded as I have already done, that this finding that the evidence of Fasasi Aremu has assisted the case of the Respondent is erroneous, the onus is on the Appellant to establish his case on the preponderance of evidence. The evidence only went to establish that appellants have not proved on a preponderance of evidence that the land they claim is their own. Since Respondents did not counterclaim, there was no basis for making a finding in their favour in this case on a ground other than that relied upon by them. The Appellants have not satisfied the trial Court that their ancestor ‘Lejin granted the land occupied by respondents to respondent’s ancestor, and that it was not a grant from Oba Olugbile.

Mr. Alawode has contended that in view of paragraph 2 of the statement of defence, respondents are deemed to have admitted the averments in the statement of claim that the land in dispute belonged to the Appellants. Counsel relied on Lewis & Peat (N.R.I) Ltd. v. Akhimien (supra). I do not think Appellants can rely on the authority of this case.

The rule in Lewis & Peal (N.R.I) Ltd. v. Akhimien (supra) applies only where the pleading of the defendant is ambiguous by merely not denying or admitting without saying more. But where the defendant goes further to state his case in his statement of defence, the rule is not fishing. In this case the respondents have in paragraphs 6-24 given a comprehensive account of their title to the land in answer to paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 20, 30, and 31 of the statement of claim.

Of particular relevance is paragraph 17 of the statement of defence that all land in Iseyin is vested in the Aseyin and can only be obtained by grant from him which was not denied by appellant. Appellants did also not satisfy the trial court that the land in dispute was part of their own land and not part of the land granted to respondents. The learned trial Judge found that the land in dispute was granted to respondents by Oba Olugbile. He summed these findings up in his judgment as follows:

“Having considered the pleadings … and the totality of the evidence before me. I believe that the areas verged yellow and marked A and B in Exhibit B. belong to the Defendants.”

The traditional evidence relating to the title of the Respondents to the land in dispute which was accepted by the learned trial Judge was in the evidence of the 3rd Defendant at page 19 lines 33-38 which I have already reproduced in this judgment. The Court of Appeal accepted this finding on the ground that Counsel for the appellant has raised no new facts to merit their reconsideration of the finding. There is no complaint that the finding is perverse. It is fair to conclude that in an action by Plaintiff for declaration of title to land, a finding of fact that the land in dispute belongs to the defendant is not only by implication hut is also a clear finding that Plaintiff has failed to prove his title to the land. I am prepared to accept the criticism that the trial Judge had expressed his finding inelegantly and in the negative. The finding could have been expressed if he had stated more appropriately positively that the appellants failed to prove their title to the land; they being the claimants. The effect is however the same, and that was indeed his finding. The other grounds of error complained of by the Appellants are the questions whether judgments in earlier litigation regarded as void and not appealed against by the appellants could be relied upon as res judicta, and whether the judgments could not be raised and pronounced upon in a subsequent case like the one before the court – see Ground 1 and 5 of the grounds of appeal in this Court. It was submitted by Mr. Alawode that Exhibit A Suit No. 481/67 and B. Suit No. 15/70 tendered by him during the trial, being judgments of the Iseyin Grade C Customary Court, and Oyo Grade A Customary Court respectively in litigation between a certain member of Appellant’s family and respondents family were void and could not support a plea of estoppel per rem judicata in respect of the land in dispute. Counsel pointed out in his brief that judgment in Suit No. 481/67 was void because the value of the land in dispute was not stated in the writ of summon. Again since the judgment of the Oyo Grade A Customary Court in Suit No.15/70 was based on the decision of the Iseyin Grade Customary Court in Suit No.481/67, it is also on that ground void.

The contention of Counsel for that appellants is that the invalidity of any decision could be raised even by the Plaintiff and pronounced upon by the court in subsequent proceedings. Counsel cited the following cases in support of his contention – Ejiofodomi v. Okonkwo (1982) 11 S.C. at p. 117; Fadiora & ANOR v. Gbadebo & anor (1978) 3 S.C. 219, at 242-251; Udofe & Ors. v. Aquisiua & Ors. (1973) 1 S.C. 119 at 127-129; Adetipe v. Amodu & Anor. (1969) 1 NMLR 62 at 65-67. I do not understand the cases cited to have supported Counsel’s contention. In Ejiofodomi v. Okonkwo (supra) the issue of the defence of estoppel on the ground of want of jurisdiction raised in the court was rejected because it was being raised for the first time in the Supreme Court.

In Fadiora v. Gbadebo, estoppel was not available because here a retrial was ordered, the evidence and verdict as well as the Judges findings at the first trial were completely inadmissible on the basis that prima facie they have been rejected. Udofe & Ors. v. Aquisisua & Ors. (supra) was a case where the judgment relied upon was proved to be a nullity. The facts of the case before us are different.

The question whether a subsisting judgment could cease to operate as res judicata in subsequent proceedings has been subject matter of decision in several cases in our Courts. The issue has been determined upon the basis whether the judgment is a valid and subsisting one and not a subject matter of appeal or that it was void, and of no effect, the trial being a nullity. Also relevant is the consideration whether there is evidence of its invalidity in the case where it is relied upon. One of the early decisions is the West African Court of Appeal judgment in Kwasi Kwaa v. Kofi Kwakwa 3 .W.A.C.A. 176. The facts of the case are that Plaintiff was the defendant in an action in the Ayeldu Native Court. between himself and the defendant. Judgment was delivered on or about the 25th January 1934.

Plaintiff again took out proceedings in the same court against the defendant by a writ dated 9th October, 1934, seeking to set aside the judgment of the 25th January 1934, on the ground of want of jurisdiction.

Irregularity, mistake and fraud. The Ayeldu Native Court dismissed the action in a judgment delivered on the 10th December. 1934, and gave judgment for the defendant. Plaintiff appealed to the Court of the Provincial Commissioner, who allowed the appeal and held that the judgment of the Ayeldu Native Court of the 25th January 1934 was a nullity and should have been so declared. The Defendant appealed to the West African Court of Appeal. In allowing the appeal, the Court said, at p. 177,

“There is ample authority for the proposition that a judgment which has been obtained by fraud either in the Court or of one or more of the parties, can be impeached by means of an action which may be brought without leave and which is analogous to the former chancery suit to set aside a decree obtained by fraud (18 Halsbury, Section 543), bill we know of no authority for the proposition that a judgment given in respect of land may be subsequently impeached in another action on the ground that the land, the subject matter of the action lay in fact outside the jurisdiction of the Court.”

Appellant instead of appealing against the judgment of January 25, 1934 chose to initiate another action in which he challenged the judgment. He failed.

In C.F.A.O. v. Chapmall & Anor. 9 W.A.C.A. 181. the defence of the defendant relying on the judgment of a Native Court on the ground of res judicata was rejected in the trial Court on the ground that the judgment relied upon was a nullity. On appeal, the West African Court of Appeal held. at p. 185

“When the learned trial Judge held that the plea of res judicata failed he gave no reason for so holding except that he sustained the contention of the Plaintiffs Counsel. One of that Counsel’s contention was that the judgment of the Anlo Tribunal was a nullity by reason of the fact that the judgment was given by a set of counselors all of whom have not sat to hear the evidence. That reason would no doubt have been a good reason for having the judgment set aside on appeal. There was however no appeal, the judgment therefore stands and cannot be treated as a nullity. In our opinion the trial judge was wrong in holding as in the reasons for judgment he did, that the judgment of the Tribunal was a nullity.”

In Chapman v. C.F.A.O., there was an irregularity in the exercise of jurisdiction, and notwithstanding that the judgment was a nullity, the declaration could not he made because there was no appeal against the judgment. Also in Timitimi v. Amabebe 14.W.A.C.A.37-1. the panel which delivered the judgment had by virtue of an amending legislation lost the power or authority, namely jurisdiction to hear and determine the suit.

Also in this case the judgment could not be set aside there being no appeal against it. Such judgment operates as res judicata. Similarly in Abogunde v. Lanlokun (1958) W.R.N.L.R 69, the defendant as Plaintiff had brought an action against the Appellant, seeking a declaration of title in respect of land. Appellant/Defendant subsequent to this brought an action in the High Court against the Plaintiff in the earlier action claiming a declaration of title with respect to the same piece of land. Before the action was heard, the earlier action had been concluded and judgment was for the Plaintiff.

The Plaintiff became the defendant in the subsequent action in the High Court. The Defendant thereupon raised a defence of res judicata relying on the judgment in the Native Court. The action in the High Court was accordingly struck out. Plaintiff appealed. The ground of appeal was that the Native Court which gave the judgment relied upon for the defence of res judicata had no jurisdiction to hear the case. The Supreme Court in dismissing the appeal said, at p.69

“There is nothing in the record to show that the Ede Native Court to which the case was transferred for hearing by the Osun Division Appeal Court, had no jurisdiction to hear the case.”

The Federal Supreme Court cited with approval the Privy Council case of Badar Bee v. Habib Merican Noondin & Ors. (1909) A.C. at p.615 where it was held,

“It is not competent for the Court in the case of the same question arising between the same parties to review a previous decision not open to appeal. If the decision was wrong, it ought to have heen appealed from in due time.”

It could be seen that the Federal Supreme Court’s dictum in Abogunde’s case appears to suggest that if evidence of want of jurisdiction was before the Court the question of the validity vel non of the judgment impugned would have been subject matter for determination. There is no suggestion in this case that there is evidence on the record to show the invalidity alleged. The crucial point in all the cases however is that the judgment sought to be pronounced upon and declared a nullity is not one on appeal before the Court. In this case the plea of res judicata was held to have been rightly upheld. The Supreme Court had opportunity in Chiekwe v. Obiora & Ors. (1960) 5 F.S.C. at p.261, to explain the question of evidence of jurisdiction without which the application will not be entertained as follows:

“Had the point been taken in the High Court that the Ede Court had no jurisdiction, there would have been some evidence in the trial Court on that point. The question whether the Ede Court’s jurisdiction covered the land in dispute was one to he settled by evidence; but there was no evidence in the record. The Plaintiff could not usefully argue that question on appeal without any evidence: nor could he have asked the Court of Appeal for leave to adduce such evidence on appeal because he should have adduced it in the trial Court.”

The Supreme Court went on to state quite pedagogically as follows – at p.262.

“The meaning of the judgment seems to be this, the jurisdiction of the Native Court cannot now he attacked, its judgment which was not appealed against, decides the title to the land in dispute, consequently the High Court was right in upholding the plea of res judicata”

Thus the trend of the decided cases is that the question of the validity of a judgment cannot be considered unless there is an appeal against the decision. It has been argued and indeed held that where evidence of want of jurisdiction is adduced against the judgment which has not been appealed against, but is relied upon as a defence to an action the Court can pronounce as to the validity of such judgment where the validity is challenged by the person against whose interest the judgment is being tendered. This proposition follows naturally from S.52 of the Evidence Act which provides.

“52. Any party to a suit or other proceeding may show that any judgment, order, or decree which is relevant under Section 48, 49 or 50 and which has been proved by the adverse party, was delivered by a Court without jurisdiction, or was obtained by fraud or collusion.”

In Timitimi v. Amahehe (supra), although the judgment of the Native Court which was not appealed against was ordinarily not open to challenge when the Plaintiff relied on it as his muniments of title to the land in dispute, the jurisdiction of the Native Court whose proceedings were pleaded by the Plaintiffs/Respondent as res judicata were enquired into and pronounced upon. The party against whom it was offered in evidence could established its invalidity by showing that the Court from which it emanated had no jurisdiction.

The question is not who can benefit from the nullity of the judgment impugned’ It is whether in fact the judgment impugned is a nullity and there is evidence before the court to make the declaration In Jame Adefipe v. Jimoh Omisakin Amodu Isaih Agodi (1969) 1 NWLR 62 where the contention was that the Ife Land Court had no jurisdiction on the grounds that there was no statutory backing establishing the Court, the Supreme Court said.

“It is putting a greater onus than is required by Section 52 of the Evidence Act to say that the onus always remains on the objector and that it is his responsibility to call for and tender all necessary court warrants. The latter course may in some cases be necessary to establish his objection but here we think that Mr. Adeyefa did raise a prima facie valid objection to the jurisdiction of the Land Court of Ife by showing that there was no such Court as the Land Court of Ife in the Schedule to the Notice of Native Courts in the Western Province”. It thereafter rested with the defendant to establish if he could, that the schedule to the Notice was wrong and are of the ways the defendant could do this was by producing a valid court warrant.

This, the defendant failed to do and therefore was unable to show the validity of the judgment relied upon. The contention of Mr. Alawode, who tendered the judgments impugned is that Respondent in whose favour the judgments were given cannot rely on the judgments he tendered in support of their defence of estoppel per rem judicata pleaded at paragraphs 26-29 of their statement of defence. The judgments; tendered were marked Exhibits A and B. and both relate to the land in dispute in this case. Mr. Alawode has submitted before us that the learned trial Judge and the Court of Appeal did not consider the merit of the submission that the judgments are a nullity and therefore could not sustain a defence of estoppel per rem judicata

Counsel for the Appellants contended that he is entitled to tender the judgment relied upon by the Respondents for their plea of res judicata and then proceed to establish the fact that because of the defect in the jurisdiction of the Court, the judgment could not sustain the defence. The defect in the jurisdiction claimed was that the value of the land was not stated in the writ of summons filed, and that a judgment founded upon such a writ of summons lacked jurisdiction and therefore was null and void. That was the incompetence relied upon. It is well settled that a Court is competent where all the conditions for its exercise of jurisdiction are satisfied. In Madukolu v. Nkemdilim (1982) 1 All NLR.SR7 at p.S94. Bairamian F.J. has laid down the test, which has been relied and acted upon by this Court on several occasions. See Sken-Consult (Nig) Ltd. & Ors. v. Ukey (1981)1 S.C.6. These are that a Court is competent where

(a) its statutory composition is properly constituted as regards numbers and qualification;

(b) the subject matter of the action is within its jurisdiction:

(c) the matter before the Court is initiated by due process of law, and upon the fulfillment of any condition precedent to the exercise of jurisdiction.

Bairamian C. J., added that any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided. The defect is extrinsic to the adjudication. Thus in the circumstances enumerated in Madukolu v. Nkemdilim, and where the lack of jurisdiction is ex facie, the want of jurisdiction can be raised at any time in the same case, as in Okpaku v. Okpaku (1947) 12 W.A.C.A. 117 or in a subsequent case where a decision based on the invalid decision is tendered as in Timitimi v. Amubebe 14 W.A.C.A. 374. – see also Ejiufodomi v. Okonkwo (1982) 11 S.C. 74 at p.117.

The only grounds on which we have been invited to reject the plea of fell judicata is that the value of the land in dispute was not stated in the writ of summons in Suit No.4R1/67 in Iseyin Grade C Customary Court, and the decision relied upon is therefore claimed to he null, me void. The Oyo Grade A Customary Court in Suit No. 15/70 was an appeal from Suit No.481/67 of the Iseyin Grade C Customary Court, and is consequently a nullity. Counsel seems to have’ relied, though not cited to us on the view expressed by Denning L.J.. M.R. in U.A.C. Ltd. v. Macfoy (1961) 3 All E. R. at p.1172, where he said.

“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there, it will collapse.”

The dictum is based on the finding that the act complained of had been established by evidence as a nullity. The judgment went on to distinguish between cases where the act is held to be void, and where it is held to be voidable. It said, p.1173

“So will this judgment collapse if the statement of claim was a nullity. But if an act is only voidable, then it is not automatically void. It is only an irregularity which may be waived. It is not to be avoided unless something is done to avoid it. There must be an order of the court setting it aside: and the Court has a discretion whether to set it aside or not. It will do so if justice demands it but not otherwise.”

These dicta were made in relation to the delivering of statement of claim during the long vacation held only to be an irregularity and therefore voidable. It was therefore held good until avoided. It follows therefore from the cases that the validity of a judgment may he challenged in an appeal against it. However, the validity of the judgment could be challenged where it is relied upon as res judicata, and there is evidence of its invalidity before the court. The consistent complaint of appellant is that the writ of summons having not stated the value of the land is fatal to the jurisdiction of the Court. Consequently, the judgment is a nullity. It is pertinent to point out that there is no evidence that the Iseyin Grade C Customary Court lacked jurisdiction. It has in fact not been contended that the Iseyin Grade “C” Customary Court had no jurisdiction to hear the action before it. The implication is that there was jurisdiction to hear the case if the value of the and had been stated. It has been the practice of the West African Court of Appeal, which subsequent courts and this court do not wish to depart from is that in considering proceedings in the customary courts. it is essentially the substance and not the form that matters – see Ohene Kwesi Abuagyi II v. Ohene Amua Gyebu 3 WACA at p.66; Matte None per Totter Okuma v. Tsutsu 10 WACA. 89 at p.90. There is no doubt that the parties in this case were never in doubt as to the real issues before the Court and litigated to conclusion that issue. The question of jurisdiction was not therefore on appeal an issue on the ground alleged.

Where a litigant is challenging the validity of a judgment relied upon by his opponent as res judicata, it is necessary for him to lead evidence to establish such invalidity. It is not sufficient merely to allege that the judgment impugned is a nullity. There must be evidence ex facie to show that the Court lacked jurisdiction – see Chiekwe v. Obiora (supra). I agree with the submission of Counsel for the Respondents that the Court of Appeal was right in dismissing the ground of appeal challenging the validity of the judgments in Suit No.431/67, and Suit No.15/70, since there was no appeal against the judgments. The Court of Appeal has stated it clearly when they said, at p.52

“In the appeal before this Court a decision of a Customary Court which was not prima facie void but alleged to have been based on an earlier one tried before another Customary Court and reviewed by another Customary Court which affirmed it, was said to be void. The case the defendants/respondents tendered before the trial court (Exhihit C) was the one which had value of the land stated on it and has not been attacked as being a nullity. Both that case and the one being attacked as being a nullity (Exhibit A) tendered by Plaintiffs/Appellants are not before this Court on appeal. What is more, the case on appeal before us now is not being challenged as being a nullity, being in itself an independent action from those judgments being assailed.”

The Court of Appeal then concluded,

“Since neither this Court nor the Court below is sitting/sat on appeal in the two cases impugned by learned Counsel for appellants (Exhibits A & C) this ground of appeal lacks substance.”

In essence by the stratagem adopted, appellants are seeking to set aside the judgments in Exhibits A & C. without actually appealing against them. It is well settled that the judgment of a competent Court subsists and is binding until set aside on appeal, or by other judicial proceeding – see Odiase v. Agho (1972) 1 All NLR.170 at p.176 Melifonwu & Ors. v. Egbiyi & Ors. (1982) 9 S.C. 145. The presumption of validity must be given effect, – see Alhaji Surakatu I. Amida & Ors. v. Taiye Oshobajo (1984) 7 S.C 68 at p.76- 77. There has been no appeal against the judgments in Suit Nos.461/67 and 15/70. The Court of Appeal was therefore right in holding that the trial Judge was right in declining to make any pronouncement on the validity vel non of Suit Nos.481/67 and 15/70. The defence of res judicata founded on the judgments therefore stands. Grounds 1 and 5 of the grounds of appeal before us therefore fail and are dismissed.

All the grounds of appeal argued before us therefore fail and are dismissed.

The appeal is accordingly dismissed. Appellant shall pay costs assessed at N300 to the Respondents.

ANIAGOLU, J.S.C. (Presiding): I had been opportuned to read in draft the judgment just read by my learned brother, Karibi-Whytc, J.S.C, and I am in agreement with his reasoning and conclusion.

The claim before the Court was for title trespass to land and an injunction. Previous suits numbered 481/67 and 15/70 (Exhibits A and B), between the same parties, and decided by competent Customary Courts, were tendered by the Plaintiffs against whom the judgments were delivered and who turned round to plead that the judgments were delivered without jurisdiction by reason of the value of the land in dispute not having been stated on the face of the writ, although appeals were not lodged against those judgments.

This point has been fully covered in the judgment and properly decided against the Appellants. There was no extrinsic invalidity shown to have affected those judgments. There is no presumption that where the value of the land in dispute is not shown on the writ, the land must be deemed to have a value beyond the jurisdiction of the Customary Court. It is a matter of evidence.

In any case there was no appeal against those judgments.

Again, the evidence of FASASI AREMU (P.W.6), the Bale of Ladogan Bale to both parties – whom the plaintiffs called as their important witness, contradicted the case of the Plaintiffs. The two Courts below found the facts against the Appellants – concurrent findings which were against the Appellants.

I agree that this appeal deserves to be dismissed. I, too, would dismiss it and hereby dismiss it, with N300.00 costs to the Respondents.

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SC.158/1985