Salawu Yoye V. Lawani Olubode & Ors (1974)

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DAN IBEKWE, JSC. 

This action in this case was commenced in the Grade “A” Customary Court, Ijebu-Ode. The plaintiffs (herein respondents) in a representative capacity sued the defendants (herein appellants) jointly and severally for a declaration of title and an injunction in respect of a piece and parcel of land situate and lying at Igboburo Quarter of Ibefun. PAGE| 2 After hearing evidence in both sides, the Grade “A” Customary Court dismissed the plaintiffs’ claims on 28th November, 1969.

The plaintiffs being dissatisfied with the judgment of the court then appealed to the High Court of Ijebu-Ode. On the 15th day of July, 1971 the learned trial Judge Ademola J. dismissed the appeal. Thereupon, the plaintiffs, once again lodged an appeal to the Western State Court of Appeal against the decision of the High Court.

On the 10th May 1973, the learned justices of the Court of Appeal allowed the appeal. Delivering the judgment of the Court Ogunkeye, J.A. remarked as follows:-   “This appeal is brought against the High Court’s decision of July 15, 1971 on 6 grounds, but for the purpose of this appeal, we shall consider only the first ground which reads:- “1. The learned Judge erred in law and on the facts by holding that the judgment in Exhibits C, D, and E between the same parties do not constitute estoppel per rem judicatam in that the land in the said judgments “is far from being all the exact land depicted in Exhibit “A” when there are sufficient facts in both the previous and the present proceedings to indicate that the same piece or parcel of land is in issue in the two cases.”  

We shall therefore, endeavour to confine ourselves only to the issue of res judicata as disclosed by the record of appeal. After reviewing the evidence adduced by the parties in the court below, as well as the law applicable to the case, the learned Justice of Appeal concluded as follows:- “All the elements necessary for the success of a plea of res judicata are, in our view, present in this case, contrary to what the learned Judge held in the court below. The parties are the same, the land in dispute is the same and the issues the same. The plea therefore succeeds.”

It is from this decision of the Western State Court of Appeal, upholding the plea of res judicata in favour of the plaintiffs that the defendants have now appealed to this court. In the light of the claim and the evidence given in the court below, we shall now proceed to consider the narrow but intricate issue of res judicata as raised in this appeal. On the whole, there are two relevant questions to be answered, namely: Is the plea of res judicata available to the plaintiffs/respondents in this case? And if so, has it been sustained by them?  

We shall deal with the latter question first. It is pertinent to observe that Exhibits “C”, “D” and “E’ appear to be the main pivot upon which the issue of res judicata in the case before us, seems to revolve. As a matter of fact, the Western State Court of Appeal relied entirely upon these exhibits in reaching its decision on the matter. The alleged previous case between the parties began in the Native Court of Ibefun. Ex “C” is the native court judgment which was delivered on the 25th January 1938. The plaintiffs in that case claimed “on behalf of Igboburo Quarter people”; and the claim reads thus:- “Defendant required to stop farming on the farmland belonging to Igboburo Quarter people situate at Agbele.”

The case went on appeal to the Judicial Council of Ijebu -Ode. Ex. “E” is the judgment of the Judicial Council which was delivered on the 5th day of July, 1938. Finally, the case went on a further appeal to the court of the President, Capt. J.A. Mackenzie, sitting in his appellate jurisdiction by virtue of Section 28 of Ordinance 44 of 1933. Ex. “D” is the judgment of Captain Mackenzie which, to all intents and purposes, is the final and binding judgment as between the parties in that case.  

We think it is clear that to be able to sustain the plea of res judicata in the present case, the burden is on the plaintiffs/respondents to prove conclusively:- “(1) That the parties in the present case and in Exhibits “C”, “D” and “E” are the same. (2) That the subject – matter of the litigation in the two cases is identical. (3) That the claim and the issue in the two cases are the same. We shall now examine, in a serial order, the above – named ingredients, which are requisite in order to sustain the plea of res judicata. First as to the parties.

As could be seen from Exhibits “C”, “D” and “E”, the plaintiffs, in that case, brought an action in a representative capacity against the defendant in his personal capacity, though he is said to be a member of the defendants/appellants family in the present case. But in the case now before us, the plaintiffs filed a representative action against the defendants, also in a representative capacity.

We have carefully considered the evidence and the proceedings in this case, and we see nothing in them to justify the finding that the defendant in Exhibits “C”, “D” and “E” defended the action as representing the family of the present defendants/appellants. Nor was he sued in a representative capacity as such. Clearly, the parties are not the same. With due deference therefore, to the learned Justices of the Western State Court of Appeal, we are unable to appreciate the reasoning which led them to conclude that the parties in the two cases are the same.

As to the subject-matter of the litigation. As we indicated earlier on, the action in the present case originated in the Ijebu Divisional Grade “A” Customary Court. It, therefore, goes without saying that there were no pleadings. Nevertheless, the parties were represented by counsel.

The plaintiffs were represented by Mr. Owotomo, and the defendants by Chief Okenla. At the trial, the plaintiffs called one Josiah Folorunsho Oshosami (Licensed Surveyor) who produced plan of the land in dispute which was tendered and marked Ex. “A”. It is enough to observe here that, at no stage in his evidence, did the surveyor attempt to relate Ex. “A” to the land in dispute in Exhibits “C”, “D” and “E”. In our view, this constitutes a fatal omission, in view of the fact that the area in dispute in the previous case (Exhibits “C”, “D” and “E”) is undefined, since no plan was ever filed in that case. Indeed, no mention whatsoever was made of the land in dispute in the previous case (Ex. “C”, “D” and “E”) throughout the evidence given by the Licensed Surveyor who, incidentally, was called by the plaintiffs.

In the circumstances, we are surprised that their Lordships, the learned Justices of the Western State Court of Appeal could still hold; in the absence of any satisfactory evidence, that the land in dispute in the two cases is the same. We however, concede the fact that in the course of his judgment, the learned Justices of appeal, after referring to the description of the land in dispute in the previous case as was set out in the address of counsel for the plaintiffs/respondents, said, inter alia, as follows:-   “He (meaning counsel) related these descriptions to the plan in this case.”

We would only point out however, that, as far as the facts of any given case are concerned, the address of counsel is supposed to deal only with the evidence before the court. But the mere mention of a matter in the course of such address is never a substitute for the evidence that has not been led. Nor can it supplement the inadequacy of the evidence already given at the trial. In the particular case which we are now considering, we believe that the Surveyor was the most competent witness to relate the plan in the present case to the descriptions of the land in dispute in the previous case. As that was not done, we take the view that the vital issue as to whether the land in dispute in the two cases is identical, or not, still remains inconclusive.   We now turn to the claim and issue.

The claim in the earlier case (Exhibits “C” “D” and “E”) was to stop the “defendant from farming on the farmland belonging to Igboburo Quarter people situate at Agbele.” But in the present case, the plaintiffs claim:- (a) Declaration of title against the defendants; and (b) Injunction. We agree with their Lordships that in determining this aspect of res judicata, one should look more at the substance, rather than at the form of claims put forward by the parties in the two

Other Citation: (1974) LCN/1877(SC)