Peter Alabi & Ors V. Kehinde Alabi (a.k.a. Actor) & Ors (2016)
LawGlobal-Hub Lead Judgment Report
MOHAMMED AMBI-USI DANJUMA, J.C.A.
This is an appeal against the judgment of the High Court of Ondo State, Akure Judicial Division by Hon. Justice T. O. Osoba delivered on 3/7/2013 dismissing the claimant/appellants’ case for want of jurisdiction on the ground of abuse of Court process.
The appellants’ claims at the lower Court were for the following:
”1. A declaration that the defendants being great grand children of Otiriki Ugbebor cannot alienate either by sale or in any form or manner any portion of the Otiriki Ugbebor family land situate and being along Idanre Road, Idiita, Adefure, Akure covered by layout No. AK/AUPO/L/664 without the consent of the plaintiffs who are the head and principal members of the Otiriki Ugbebor family.
?2. An Order setting aside as null and void all sales, or alienation of any portion of the Otiriki family land situate and being along Idanre Road, Idiita, Adofure, Akure covered by the layout No. AK/AUPO/L/664 in whatever form or manner by the defendants having done so without the consent and authority of the head and principal members of Otiriki Ugbebor
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family.
3. An Order directing immediate partitioning of the Otiriki Ugbebor family land in compliance with the judgment of the Customary Court in suit No. AK/CC11/343/2006 delivered on 13/12/2008.”
RELEVANT FACTS
The plaintiff/appellants commenced this suit by writ of summons and statement of claim filed on 11/12/2012. The respondents filed a joint statement of defence and a motion on notice seeking dismissal of the suit on the principle of estoppel per rem judicata in that the matter had been determined in 2008 in Suit No. AK/CC11/343/2006 in favour of the respondent’s father. The application was taken and ruling delivered dismissing the suit for want of jurisdiction.
Dissatisfied with the ruling, the appellant filed a notice of appeal dated and filed on 12/7/2013 containing one ground of appeal. In compliance with the rules of this Court, parties filed their respective briefs.
Appellants brief was settled by Temitope Adedipe, Esq. who formulated one issue for determination of this appeal thus:
“Whether the lower Court was right in declining jurisdiction on the ground that Suit No. AK/410/2012 is the same as Suit No.
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AK/CC11/343/2006.”
The respondent’s brief was settled by A. O. Olademehin, Esq. dated 28/4/2015 and filed 29/4/2015 but deemed properly filed and served on 7/3/2016. He adopted the sole issue raised by the appellants’ counsel.
At the hearing of this appeal on 7/3/2016, counsel adopted their respective brief as their arguments in this appeal.
ARGUMENT
Addressing this issue, learned counsel for the appellant pointed out that the crux of the respondents application which the lower Court upheld is that parties had once litigated on the subject matter before the Customary Court in Suit No. AK/CC11/343/2006 as shown by the enrolment of judgment exhibited to the said application. Counsel submitted that for estopel per rem judicata to be applicable in the case, the following must be shown, thus:
1. The parties are the same in both the previous and present proceedings.
2. The claim or issues in dispute in both cases must be the same.
3. The res or the subject matter of the litigation in both cases must be the same.
4. The decision relied upon to support the plea of estopel per rem judicata must be valid, final and
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subsisting.
5. It must be a Court of competent jurisdiction that gave the subsisting judgment.
He relied on Noga Hotels Int’l S. A. v. Nicon Hotels (2008) ALL FWLR (Pt. 411) 840 at 865-867 and Igbeke v. Okadigbo (2013) 12 NWLR (Pt. 1368) 225 at 244 Paragraphs E-G. He then submitted that apart from the fact that there was a Suit in AK/CC11/343/2006, between the Ugbebor family and one Ayo Olorunsusi Ugbebor, Suit No. AK/401/2013 does not fall within the ingredients of estopel rem judicata.
Counsel submitted that in the previous suit, the representatives of Ugbebor family were plaintiffs while the sole defendant was Mr. Ayo Olorunsusi Ugbebor, whereas in the present suit representatives of Ugbebor family are the plaintiffs and Kehinde Alabi (aka Actor), Bimbo Alabi, Femi Oladimeji, Tunde Oladimeji, Major Oladimeji, Gbenga Ayodele and Surveyor Dele are the defendants in the present suit.
On issues, counsel submitted that the issue determined in the previous suit was whether the defendant i.e. Ayo Olorunsusi Ugbebor can alienate by sale any portion of the family land without the consent and authority of the head, secretary and principal
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members of Ugbebor family. Whereas in the present suit, the issue for determination is whether the defendants as great grand children of the Ugbebor family can lay claim and alienate the family land without recourse to the claimants who are head and principal members of the Ugbebor family. Further, counsel argued that the act of alienating by Ayo Olorunsusi in Suit No. AK/CC11/343/2006 is not a bar to instituting a fresh action against his son (the 6th respondent herein) who chose to sell family land without the consent and authority of the head and principal members of the family.
Counsel submitted that assuming without conceding that the appellants are estopped by Suit No. AK/CC11/343/2006, it will only be as against the 6th respondent and not all the respondents who have not shown any link with Suit No. AK/CC11/343/2006. Furthering, counsel submitted that from the pleadings and various affidavit evidence, it is not in dispute that the land in dispute in AK/CC11/343/2006 forms a portion of the large parcel of land now in dispute in AK/401/2012.
He relied on Ntuks v. Nigerian Ports Authority (2007) ALL FWLR (Pt. 387) 089 at 839 Paragraphs C-F.
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Finally, counsel submitted that it is unfortunate that the learned trial judge found as a fact that relief of the appellant is justifiable, it still went ahead to dismiss the appellants case in its entirely instead of proceeding to trial on the basis of that justifiable relief. He urged us to resolve this issue for the appellant and set aside the judgment of the lower Court since the respondents has failed to establish the plea of estopped per rem judicatam.
Reacting, learned counsel for the respondents submitted that the respondents copiously pleaded the defence of estopped per rem judicata in their Paragraphs 13, 15 and 16 of their statement of defence as required by law and rules of Court. He also submitted that the appellants acknowledged same in their Paragraphs 11, 12, 13 and 14 of their statement of claim conceding the fact that the said judgment in suit No. AK/CC11/343/2006 has not been appealed against. He submitted that the argument of the respondents which the trial Court upheld was that the subject matter before the lower Court had been litigated upon and determined by the Customary Court in suit No. AK/CC11/343/2006 between the same
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parties as shown by the judgment exhibited to the application.
Learned counsel submitted that under the principle of estoppel per rem judicatam parties include privies in blood and estate, executors trustees, beneficiaries, assignors, assignees, lessors, and guardian litem.
Furthering, counsel submitted that parties are the same in both the previous and present suits in that the 6th respondent is the first son of late Ayo Olorunsusi, who was the defendant in the previous suit, and the 3rd, 4th and 5th respondents are the sons of late Michael George who was the 3rd plaintiff in the previous suit. The father of the 1st and 2nd respondents who is now senile also participated in the representative action of the previous suit. He then submitted that it is the same subject matter that the respondents’ fathers that are dead now, were sued in Suit No. AK/CC11/343/2006, that the respondents are now being sued, hence the invocation of estoppel per rem judicatam.
?On issues, learned counsel submitted that the issues are the same in both the previous and present suits. The issues, said counsel determined in AK/CC11/343/2006 was that no member of
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Otiriki Ugbebor family can give or sell the family land without the consent of family head. Counsel submitted that at Paragraph 4 of the judgment in AK/CC11/343/2006, the Court shared the family land for the family members when it held that each family member should remain in their respective portion of the land as their own share of the land. He submitted that the remaining portion of land which the Court in the previous suit ordered to be shared among the nine line of Otiriki Ugbebor family had been single handedly sold off by the 2nd appellant before he instituted this action.
Counsel submitted that it is unfortunate that the appellants who refused to exercise their right of appeal against the judgment in suit No. AK/CC11/343/2006, now brought this action because the respondent’s fathers are either dead or senile is claim the portions given to the respondent’s fathers. Counsel submitted that the Customary Court of Ondo State is a competent Court to determine non – urban customary land matter and its decision is final, subject to an appeal to the High Court, which ostensibly, the appellant has not done. He relied on Osunrinde v. Ajamogun (1992) 6 NWLR
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(Pt. 264) 156 at 184.
He argued that the Court in suit No. AK/CC11/343/2006 did not leave any issue raised before it undetermined in respect of the status of the case and the subject matter, and therefore that the only options open to the appellant is to appeal that decision and not bringing a fresh suit. He urged that this issue be resolved for the respondent and the appeal dismissed as lacking merit.
RESOLUTION
The doctrine of estoppel per rem judicata is to the effect that where a judgment is on the merit, final and delivered by a Court of competent jurisdiction over the parties and subject matter, any party in such suit as against any other party is estopped in a subsequent suit from disputing such decision on the merit.
In other words, once the decision or judgment is final on the same question and between the same parties, it is binding until upset on appeal. The Supreme Court had occasion to expatiate on the necessities of the principle of estopped per rem judicata on the case of Ressel L. Y. Dakolo & Ors. v. Gregory Revance – Dakolo & Ors. (2011) 6 SCNJ 379 at 391 Paragraphs 15-20, when it held thus:
“Where a
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party sets up res judicata by way of estoppel as a bar to the parties’ claim, the following must be established.”
(a) There must be a judicial decision
(b) The Court that delivered the decisions must have had jurisdiction over the parties and subject matter;
(c) The decision must be final and on the merits;
(d) The decision must determine the same question as that raised in the later litigation, and
(e) The parties to the later litigation were either parties to the earlier decisions or their privies, or the earlier decisions was in rem.”
On the rationale behind the principle of estoppel per rem judicata, the Supreme Court furthered in Paragraph 30 of the same page 391, thus:
“Res judicata estoppel is necessary to ensure the conclusiveness of judicial decisions and that individuals ought to be protected from vexations and multiplicity of suits.”
See Odjewedjue v. Echanokpe (1987) 1 NWLR (Pt. 52) 633: Okpruruwu v. Okpokam (1988) 4 NWLR (Pt. 90) 554 and Udo v. Obot (1989) 1 NWLR (Pt. 95) 59.
?In the instant case, it is not in dispute between parties that the appellants and the respondents are descendants of
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Otiriki Ugbebor family both in the instant suit and in suit No. AK/CC11/343/2006. It is equally not in dispute that they are all entitled to benefit from the landed property of Otiriki Ugbebor, their progenitor. Again, parties are in agreement that parties in suit No. AK/CC11/343/2006 are the same with the parties in this present suit, save the fact that some parties in the previous suit who are dead or senile were replaced with their children in the present suit.
On the issues, even a cursory look at the issues decided in suit No. AK/CC11/343/2006 and the one sought to be determined in the suit that gave rise to this appeal will show that they are the same. The central issue in the two suits is in essence, that no member of Otiriki Ugbebor family has the right to alienate any Otiriki Ugbebor family land without the consent of the head and principal members of the family.
?I have carefully examined the judgment in suit No. AK/CC11/343/2006 in the unpaged record of appeal and it is beyond doubt that the issues decided therein are the same with the issues in the instant suit. The fact that some of the parties in suit No. AK/CC11/343/2006 are dead
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or senile or that some of the parties whose fathers were plaintiffs in the previous suit are now defendants in the present suit makes no difference.
It is pertinent to note that the judgment in suit no. AK/CC11/343/2006 is very comprehensive for instance after deciding the central issue that no member of Otiriki Ugbebor family should alienate any portion of the family land to anybody without the consent of the head and principal members, it still went on to rule that each member should retain the portion of the land he has been farming on, and the remaining parcel of land should be shared among the members within 6 months of the judgment.
I cannot agree more with the learned counsel for respondents submission vide Paragraph 6.8 of their brief, that the Court in suit No. AK/CC11/343/2006, did not leave any issue raised before it undetermined as to call for a fresh suit to resolve same.
Interestingly too, parties are ad idem on the fact that the subject matter of both the previous and the present suits is their progenitors land situated along Idanre Road, Idi Ita, Adofure, Akure.
?Again, the appellants neither questioned the
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competence of the Customary Court to entertain and determine Suit No. AK/CC11/343/2006 nor have the judgment delivered on same since 13th day of December, 2008 been appealed against.
That being the case, I cannot agree more with the learned trial judge at page 3 of his judgment that the only option open to the appellants if they are not satisfied with judgment in suit No. AK/CC11/343/2006, is to appeal against that decision. A fresh suit in the circumstance, constitutes on abuse of Court process which we seriously deprecate.
On the remark of the learned trial judge that the only aspect of the suit which appears to be justified is relief (c) that is the prayer for an order directing immediate partitioning of Otiriki Ugbebor family land in compliance with the judgment of the Customary Court in Suit No. AK/CC11/343/2006. I do not agree that that prayer is justified in the circumstance, given the fact that the Court in Suit No. AK/CC11/343/2006 made an emphatic order that while every member of the family should keep the portion of the land he was farming on, the remaining portion should be shared among the 7 lines of descendants of the Otiriki
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Ugbebor family within 6 months and report back to the Court. The parties, unfortunately, have chosen to obey that order in breach and cannot come back to Court seeking for the same order. That will amount to an abuse of Court process. The Court cannot repeat itself.
It would have been different if the prayer is that the Court should vide its inherent powers appoint a person or persons, to partition the said land among the family member on the ground that it has become impossible for the family members to effect the partitioning.
On the strength of the above, I am constrained to and I so hold that this sole issue is resolved against the appellants.
Having resolved the sole issue in this appeal against the appellants, this appeal fails and is hereby dismissed as lacking in merit. Therefore, the ruling of Hon. Justice T. O. Osoba of Ondo State High Court, Akure Division in suit No. AK/401/2012 delivered on 3rd day of July, 2013 is hereby affirmed.
I award costs of N50,000.00 against the appellants and in favour of the respondents.
Other Citations: (2016)LCN/8725(CA)
