Tunde Osunrinde & Ors Vs. Mutairu Togun Ajamogun & Ors (1992)

LawGlobal-Hub Lead Judgment Report

M. E. OGUNDARE, J.S.C. 

In the High Court of Lagos State and by paragraph 25 of their amended Statement of Claim the plaintiffs who are now respondents in this court claimed from the defendants as follows:-

“(1) An order declaring as null and void the power of attorney dated the 16th day of August 1977 and registered as No. 92 at page 92 in Volume 1623 of the Lands Registry or in the alternative an order setting aside the said power of attorney.

(2) An order setting aside the lease dated this 19th day of July 1979 and registered as No.7 at page 7 in Volume 1784 of the Register of Deeds kept at the Lagos State Land Registry Lagos Nigeria.

(3) The sum of N50,000,000 being damages for trespass committed by 1st defendant his servants, agents and privies on all that piece or parcel of land situate, lying and being at Mafoluku and more particularly delineated with its dimension and abuttals on Plan No. OGEK 38A/78 attached to the Deed of Lease dated 19th day of July 1979 and registered as No.7 at page 7 in Volume 1784 of the Lands Registry in the office at Lagos.

(4) Perpetual injunction restraining the 1st defendant, his servants, agents and privies from further trespass on the said land.”

The 1st defendant filed a Statement of Defence. The 2nd defendant also filed a Statement of Defence. The 4th, 5th, 6th and 8th defendants (the 3rd and 7th defendants were then dead) filed and relied on a joint amended Statement of Defence. Pleadings having been completed the case proceeded to trial at the end of which, after addresses by learned counsel for the parties, the learned trial Judge, in a reserved judgment, found for the defendants and dismissed plaintiffs’ claims. The plaintiffs being dissatisfied with this judgment appealed to the Court of Appeal which latter Court allowed the appeal, set aside the judgment of the trial court and entered judgment for the plaintiffs in the following terms:-

“The lease agreement dated the 19th day of July. 1979and registered as No.7 at page 7 in Vol.1784 of the Register of Deeds kept at the Lagos State Land Registry in Lagos is hereby set aside.

The 1st defendant is hereby ordered to pay the 2nd. 3rd and 4th plaintiffs the sum of N45,000.00 being damages for trespass committed by him and his servants, agents and privies on the parcel of land delineated in Plan No. OGEK 384/78 attached to the Deed of Lease dated 19th day of July, 1978 and registered as No.7 at page 7 in Vol. 1784 of the Lands Register in the office at Lagos. The 1st defendant, his servants, agents and privies are hereby restrained from further trespass on the said parcel of land.”

Being dissatisfied with that judgment the 1st defendant, with leave of the Court of Appeal, appealed to this court upon 9 grounds of appeal. Equally so, the 3rd to the 8th defendants, with leave of the said Court, too appealed to this court upon 3 grounds of appeal.

In respect of his own appeal, the 1st defendant filed and exchanged his brief of argument. The plaintiffs also filed the respondents’ brief in answer to appellants’ brief but as that brief was filed out of time. Miss Kuye of counsel for the respondents moved this court on 13/4/92 for extension of time within which to file respondents’ brief and to deem same already filed and served as being properly filed and served. The application was however, refused by this court on the grounds (a) that no penalty was paid by the respondents as required by the Rules of this court at the time of the filing of the brief and (b) that the brief itself was defective in that it contained no issues for determination. Mr. Ladimeji of counsel for the 3rd to the 8th defendants also moved the court on the same day for extension of time to file additional grounds of appeal and the brief of argument of the 3rd to the 8th defendants/appellants and to deem same already filed and served as being properly filed and served. This application too was refused on the grounds (a) that the proposed grounds of appeal were not annexed to the motion papers and (b) that the brief had not been filed nor any penalty paid in respect thereof. There being no brief filed in respect of the appeal of the 3rd to the 8th defendants, the appeal is hereby struck out pursuant to Order 6 rule 3(2) of the Supreme Court Rules.

The Court took oral arguments in respect of the Ist defendant’s appeal. The facts simply are these: The land in dispute belongs to the Ajamogun/Olukotun family. A power of attorney was granted to the 1st plaintiff and the 2nd to the 8th defendants who are members of the family by other members to deal with the family land. In consequence of this power the 2nd to the 8th defendants as well as the 1st plaintiff granted a lease of part of the family land which is now in dispute to the 1st defendant. The 1st defendant went on the land and commenced building thereon. The plaintiffs instituted this action claiming as herein-before stated. Their main complaint was that the head of the family did not consent nor subscribe to the giving of the power of attorney to the donees of the power. According to them the head of the family at the time was one Muse Gbadamosi Ajamogun. There had been series of actions among members of the family before the present action and in one of such actions the court found that Muse Gbadamosi Ajamogun, whom the plaintiffs held out as the head of the family at all time relevant to this case, was the head of the family.

The defendants, except the 2nd defendant, averred and led evidence in support of the fact that the head of the family at the relevant time was one Musa Aina Bale and that he consented to the grant of the power of attorney to the 2nd to the 8th defendants and the 1st plaintiff.

The case of the 3rd to the 8th defendants was that the power of attorney was valid and that the lease to the 2nd defendant was equally valid. The learned trial Judge accepted the evidence for the defence and found that Musa Aina Bale was the head of the family.

On appeal, the Court of Appeal held that the issue of the headship of the family was not open to the trial Judge to make a finding on as the defendants were estopped by the finding of a competent court in an earlier case that Muse Gbadamosi Ajamogun was the head of the family. Consequently as his consent was not sought not obtained to the power given to the 2nd to the 8th defendants and the 1st plaintiff, the Court of Appeal held that the power of attorney was invalid and that the Deed of Lease in favour of the 1st defendant was equally invalid. The only brief before this court is the 1st defendant/appellant’s brief and in it his learned counsel, Mr. Fasanu has set out the following questions as calling for determination:

“1. Is the action properly constituted having regard to the first claim to declare the power of attorney null and void and the non-joinder of other persons who had acquired interests under it apart from the 1st defendant

2. Was the prayer for the Power of Attorney to be declared null and void among the orders made by the lower court in allowing the plaintiff’s appeal
3. (If the answer to the above is in the negative) could the lower court properly set aside the Lease Agreement not having first declared the Power of Attorney as null and void
4. Not having objected to or overruled the taking of oral evidence by the High Court to resolve the capacity in which Muse Aina Bale executed the Power of Attorney, could the lower court reverse the High Court’s finding as to that capacity merely because he is stated to be a principal member on the Power of Attorney
5. Was the lower court not wrong in reversing the High Court as to the headship of the family having regard to the admission of the same by the 1st plaintiff
6. Did the judgments tendered by the plaintiffs create res judicata or estoppel against the defendants with respect to headship of the family
7. Was the lower court right to have set aside the Lease Agreement in the circumstances of the case
8. Was the plaintiffs’ case not bound to fail in equity having regard to the position of the 1st defendant as a stranger to the Ajamogun family and the conduct of the plaintiffs on the evidence”

In oral argument before us, however, he argued issue (1) separately and argued issues (2) – (7) together.

Perhaps this is a convenient stage to dispose of the submission of Miss Kuye that the issues set out in the 1st appellant’s brief are not covered by the grounds of appeal. I have examined the grounds of appeal which I need not set down in this judgment and with respect to learned counsel. I can find no merit in that submission.

Suit improperly Constituted: The main argument on this ground is that all those to whom the donees of the power of attorney granted portions of land out of the family land had not been joined in the action and therefore the action was not properly constituted. It is submitted both in the brief and in oral argument that, in an action to declare a power of attorney void, all grantors and grantees of the power and all those who have acquired rights or interests under due exercise of the power should be made parties to the suit and such a declaration should not be made where it would affect rights already conferred by the grantees of the power. Miss Kuye who was given leave by this Court to address us orally, submitted that Order 13 rule 19 of the High Court Rules of Lagos State, 1972 provides a complete answer to the complaint that the action was not properly constituted. I agree entirely with her. Order 13 rule 19 of the Lagos High Court Rules 1972 provides as follows:-

“No cause or matter shall be defeated by reason of the mis-joinder or non-joinder of parties, and the Court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The Court or a Judge in Chambers may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appeal to the Court or Judge in Chambers to be just, order that the names of any parties whether plaintiff or defendants, who sought before the Court is necessary to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added ……………”

It has not been stated who were the persons who took grants from the donees of the power nor is there evidence that the plaintiffs (except perhaps the 1st plaintiff) knew who these people were.

Learned counsel for the 1st defendant/appellant, Mr. Fashanu had drawn our attention to the following cases – Ekpere v. Aforije (1972) 1All NLR (Pt. 1) 220; Green v. Green (1987) 18 NSCC (Pt.2) 1115, 1121; (1987) 3 NWLR (Pt.61) 480 and Adegbenro v. Attorney-General (1962) 1 All NLR 431, 441 in support of his submissions on this issue. I have read these cases and I do not find them applicable. To begin with, the subject matter of the action leading to this appeal is that part of the family land of Ajamogun/Olukotun family leased to the 1st defendant by the other defendants and the 1st plaintiff, I cannot see how other people who got other portions of the family land from the donees of the power of attorney in question here could be said to be directly interested in the result of the present suit. I cannot see, therefore, how their presence “before the Court is necessary to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter.” I do not consider them a necessary party to this suit; there are no claims as such against them – See Edokpolor v. Sem-Edo, (1984) NSCC 523, 565: Oshodi v. Egunjobi (1966) 1 All NLR 278: Aromire v. Awoyemi (1972) 2 S.C.1. As was held by this court in Uku v. Okumagba (1974) 2 S.C. 35, the reason for seeking to join a particular person as a party to an action is that he should be bound by the result of the action. The question, therefore, to be settled must be a question in the action that cannot be effectually and completely settled unless he is a Party observed:

.. It is my view that the issue of joinder which is the cardinal issue in this appeal can be and has been properly raised. Put simply, it is that the respondents knew and left the persons in physical possession or actual occupation, i.e. the appellants, out of the action which contains a claim for possession and got judgment behind the backs of the appellants and the question arose whether the court should allow such a course of action which amounts to an abuse of the process of the court and deprives the appellants of their constitutional right of being heard in the matter affecting their right to occupation and possession of the land before the court arrives at a decision on the claim.”

He added at pages 264-266:

“I am unable to accept counsel’s observation that a consideration of the authorities on which the appellants anchored their argument quite clearly establishes that the facts of this case on appeal fall within the circumstances which preclude joinder.

He observed that the names of the appellants were not pleaded as is demanded by Bullen & Leake 12th Edition page 168 and that the facts of Minet v. Johnson Vol. 63 LTR 507: (1890) All ER (Reprint) 586 are completely different from the facts of the case on appeal.

In that case:-

(i) that the person in occupation claimed the land through someone else not through the defendant therein

(ii) judgment was signed in default of appearance:

(iii) the person in occupation had had no knowledge of the pending action as in this case where Nabhan had notice,

(iv) the application in that case did not affect the judgment against the defendant on record. (In this case it is sought to set aside the judgment as it affected the defendants).

The facts may not be the same but the principle of ensuring that the rights of those in physical occupation are not taken away without being heard is the same.

The dictum of Mathew, L.J. in Green v. Herring (1905) 1 KB 151 at 159 and that of Atkin, LJ in Barton v. Alliance Economic Investment Co. (1922) 1 KB 742 dealing with the inadvisability of adding the names of numerous weekly tenants to that of the immediate landlord in the writ do not, in my opinion, support the respondents’ action in omitting from his writ. Anthony Atrib who to his knowledge as disclosed in the statement of defence, holds a 70 years lease of the property. The position, rights and interests of weekly tenants and lodgers cannot match those of holders of long leases.”

Irikefe JSC (as he then was) had earlier said in that case at p.227:

“I am satisfied that whether an order for joinder is made pursuant to an application by the parties or by a court suo motu, the real test is whether the person to be joined will have his interest irreparably prejudiced if an order joining him as a party is not made. See Amon v. Tuck & Sons Ltd. (1956) 1 All ER 273 at 287 per Devlin. J. where the following passage occurs:-

‘The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party.”

See also Oriare v. Govt. of Western Nigeria – (1971) 1 All NLR 138 and Uku and Others v. Okumagba and Others (1974) 3 S.C. 35.”

I cannot see how the judgment the plaintiffs obtained against the 1st defendant could bind all others granted portions of the family land by the donees of the power of attorney as to make that judgment irreparably prejudicial to their interests. I hold, therefore, that they are not necessary parties to the present suit, notwithstanding there is a claim to declare void the power of attorney under which the 2nd to 8th defendants and the 1st plaintiff acted in making grants to them. No issue was joined on the pleadings between them and the plaintiffs.

The position of the donors of the power is slightly different. They are members of the Ajamogun/Olukolun family. But they executed the power of attorney- Exhibit PW2F as “principal members and accredited representatives of AJAMOGUN/OLUKOTUN FAMILY…..” The main issue in this suit is that the head of the family did not join in granting the power nor was his consent obtained. In determining this main issue which goes to the validity of the power and the subsequent lease to the 1st defendant, it is not, in my humble view, necessary for the effectual and complete settlement of the issue that all the donors be made parties to the action. It would have been sufficient if the first named donor, Chief Musa Aina Bale, whom the 3rd-8th defendants held out in their amended statement of defence to be the head of family at the relevant time, had been joined as representing the other donors. But he had died before the action was instituted. Having regard to the facts pleaded, I would not say that the presence of the donors of the power of attorney before the court was absolutely necessary for the effectual and complete settlement of the issues in controversy in the suit. In any event, if they knew of the action but left the 3rd-8th respondents to fight their cause for them, they would not be allowed to be joined as a party -see-Shonekan v. Smith (1964) 1 All NLR 168.

Even if Mr. Fasanu is right in his submission that the donors of the power of attorney and the grantees parts of the family land ought to be joined as party to the action, it is my view that their non-joinder would not defeat plaintiffs’ claims. This is clearly provided in Order 13 rule 19 of the High Court of Lagos State (Civil Procedure) Rules, 1972. If a necessary party was not joined the duty was on the defendants as early as possible to draw the court’s attention to the absence of such party so that the trial court might direct the plaintiffs to take necessary steps to have them joined as co-defendants – see: Onayemi v. Okunubi (1965) 1 All NLR 362: Bohsali v. Arikpo (1966) 1 All NLR 161.This the defendants did not do in this case. Learned counsel for the 1st defendant, Mr. H.A. Lardner, SAN raised the issue of non-joinder for the first time in his final address before the trial court. The said court in its judgment has this to say on it:

“I am in full agreement with Lardner SAN that in an action to declare the power void ab initio, all the grantors, the grantees and all those who have acquired rights under due exercise of the power should be made parties to the suit. Such a declaration should not be made where its result would affect rights conferred by the plaintiffs themselves and where the result would result in equitable fraud on those who innocently acquired those rights. See Ogundairo v. Okanlawon (1963) 1 All NLR 358 (1963) 2 SCNLR 328.”

Akpata JCA (as he then was) in his lead judgment in the Court of Appeal observed thus:

“The learned trial Judge agreed with learned counsel for the 1st defendant that in an action to declare a power void ab initio, all the grantors, the grantees and all those who have acquired rights under due exercise of the power should be made parties to the suit and such a declaration should not be made where its result would affect rights conferred by plaintiffs themselves and results in equitable fraud on those who acquired those rights. Ogundairo v. Okanlawon (1963) 1 All NLR 358; (1963) 2 SCNLR 328 was cited in support.

I have read over and over again the decision in Ogundairo v. Okanlawon & Ors. (supra) and I have not succeeded in coming across any statement of the law akin to the proposition stated by the learned trial Judge at page 241-242 of the records and as canvassed by counsel for the 1st defendant/respondent: Indeed neither the counsel nor the learned trial Judge referred to the exact page in the authority cited where the legal proposition was allegedly stated. I however admit that there is some sense in the proposition of the law canvassed by the learned counsel and accepted by the learned trial Judge. The proposition however is that in this case only the 1st plaintiff was a donee of the power of attorney. Also it was he alone amongst the plaintiffs who allegedly executed the lease agreement in favour of the 1st defendant/respondent. I use the word “allegedly” advisedly because it cannot be said that the evidence of 3rd P.W., the fingerprint expert, supported the finding that the 1st plaintiff in fact thumb-impressed exhibit “P.W.2/A. “It is a finding of fact by the learned trial Judge based on the totality of the evidence adduced before him touching on the credibility of witnesses which I cannot interfere with.

In his evidence however, the 2nd plaintiff said he saw nothing about other conveyances made pursuant to the said power of attorney. The learned trial Judge did not hold that the 2nd plaintiff was being untruthful. I therefore find it unacceptable that in the circumstances of this case that all those who had acquired interest in the family land by virtue of the power of attorney should have been made parties in this action before exhibit “P.W. 2/F” could be declared void.”

I have read the case of Ogundairo & Ors. v. Okanlawon & Ors. (1963) 1 All NLR 358;(1963) 2 SCNLR 328 relied upon by the learned trial Judge in the passage of his judgment quoted above. In that case, plaintiffs sued for a declaration of title to an area of land; the defendants alleged that they had won a previous suit between the parties; the trial Judge held that the previous decision related to part of the land in dispute before him, but as it lacked certainty, it could not be used as res judicata: he gave judgment for the plaintiffs for the whole land. This could that the effect of that judgment was to grant a declaration of title to the plaintiffs to an area which included portions over which the defendants had successfully asserted their ownership in a previous suit; and as declaratory judgments are discretionary. it was a case in which a declaration of title to the whole area should have been refused.

Taylor, F.J. (as he then was) delivering the judgment of the court had this to say on page 361:

“It has been said that the making of a declaratory order is within the discretion of the trial Judge and this discretion should not be too readily exercised. In a claim for declaration of title to land if the defendant is able to adduce evidence, oral or documentary, which has the effect of discrediting the plaintiff’s evidence; such a declaration should be refused. In this case on appeal, exhibits D1 and D2 and their effect as stated by the trial Judge discredit the plaintiffs’ evidence as to absolute ownership of the whole area in dispute.”

There can be no doubt that the reasoning in the case is sound. For how could judgment be entered in plaintiffs’ favour to the whole land when part of it had earlier been adjudged to the defendants by a court of competent jurisdiction. But the facts in that case are not apposite to the facts or the present case. The land in dispute here is not the whole land of Ajamogun/Olukotun family but the portion leased to the 1st defendant. The portions said to have been sold to other persons are not in controversy in this action. That is the more the reason why they cannot be said to be necessary parties. In any event, that case has nothing to do with the issue of non-joinder but with the exercise of the court’s discretion to grant a declaratory relief.

I agree therefore with the conclusion of Akpata J.C.A. I will add that at the stage learned Senior Advocate first raised the issue, it was too late, moreso that the 1st defendant knew all along that there were other grantees of parts of the family land some of whose conveyance particulars he pleaded and their deeds tendered in evidence.

In conclusion, I find no merit in the complaint against non-joinder and answer the first question in the affirmative.

QUESTIONS (2) & (3)

The simple answer to question (2) is “Yes”. For Akpata JCA in his lead judgment in the Court of Appeal said:

“I say with due respect that it ought to have occurred to the learned trial Judge that a donor who claims to be a principal member and accredited representative of a family cannot be rightly said to claim by that averment that he is the head of that family. The mere fact that donors described themselves as accredited representatives of the family and as representing various sections of the family will not vest them with authority to supplant the Head of the family or undermine his authority.

What it all amounts to is that the power of attorney given not by the head of the family or with his express consent is void. Any disposition of family land pursuant to that power of attorney is of no effect whatsoever. As rightly submitted by Mrs. Kuye, the power of attorney cannot pass any interest to anyone unless the head of family waives his right.

(Italics mine).

There is a clear and positive finding by the Court of Appeal that the power of attorney not having been given by the head of the Ajamogun/Olukotun family or with his express consent is void. The failure to include an order in the terms as claimed in the final part of the judgment will not derogate from this express finding. With profound respect to learned counsel, Mr. Fasanu, I am not impressed by the arguments proffered by him in his brief on this issue. In view of the answer to question (2), question (3), does not arise.

QUESTIONS (4)-(6) HEADSHIP OF THE FAMILY

These questions relate to the principal issue in this appeal, that of the headship of the Ajamogun/Olukotun family at all time relevant to the action leading to this appeal. The plaintiffs, in their amended statement of claim, pleaded as follows:-

“9. The plaintiffs aver that they as well as the 2nd to the 8th defendants are members of Ajamogun/Onikotun family and they jointly own this vast area of land starting from Agege at Ogba stretching to Abule Ayeni near Afijalo and Sogunle and no individual member or group has any right to alienate or deal in anyway whatsoever without prior consultation knowledge and consent of principal members of the family in respect of the said family land.

10. The plaintiffs further avert that the 2nd to the 8th defendants are but junior members of the family and forms a dissident group in the family.
11. The plaintiffs aver further that the said 2nd to 8th defendants purported to lease part of the family land which is the land in dispute under and by virtue of a purported power of attorney given them by only seven members of the family without any authorisation by the whole family.
12. The plaintiffs further plead the purported power of attorney which is dated the 16th day of August, 1977 and registered as No.92 at Page 92 Volume 1623 of the Lands Registry Lagos.
13. The 1st plaintiff is one of the donees to the above recited power of attorney he denies ever executing any lease in favour of the 1st defendant and pleads that the document is not of his making and further pleads that he as a principal member ought to be consulted before any portion of the family land could be alienated.
14. The 2nd to the 5th plaintiffs are principal members of Ajamogun and Onikotun families whose consent are necessary before any portion of the family land is alienated.
15. That at all material times between 1965 and 1981 when he died Muse Gbadamosi Ajamogun was the overall head of both Ajamogun family as well as Onikotun family.
16. That at the time the power of attorney was executed Muse Gbadamosi Ajamogun was in Court with his most junior brother Momodu Gbadamosi the 3rd defendant and some other members of the family for selling family land without his knowledge and consent and the approval of other principal members of the family in Suit No.ID/418/76.
17. That Muse Gbadamosi Ajamogun has consistently since 1965 fought that the family should unite and has been vindicated in the following judgments:

(1) Suit No. HK/11/62 Alli Gbadamosi Ajamogun and 4 Ors. v. Musa Aina Bale & 3 Ors.

(2) Suit No. IK/25/62 Muse Gbadamosi Ajamoglun and 4 Ors. v. Musa Aina Bale 7 3 Ors.

(3) Suit No. IK/25/65 Muse Gbadamosi Ajamogun and 4 Ors v. Rasaki Agbaje & 3 Ors.

(4) Suit No. IK/418/76 Muse Gbadamosi Ajamogun and 3 Ors. v. Alhaja Anifatu Adelekan & 7 Ors.

(5) Suit No. IK/411/79 Muse Gbadamosi Ajamogun and ors. v. Ambali Yaya & Ors.

(6) Suit No. IK/262/71 Muse Gbadamosi Ajamogun v. Rasaki & 2 Ors.

18. That the head of the family was never consulted nor was his consent given to the purported lease executed on behalf of the first defendant and registered as No.7 at page 7 in Volume 1784 Lagos of the Register of Deeds kept at Lagos State Lands Registry Lagos Nigeria nor were the important principal members of the family consent and approval received.
19. The plaintiffs further aver that prior to the said lease the 2nd plaintiff and some other principal members saw the 1st defendant scouting on the land and warned him not to buy and explained that he was buying a law suit if he did not heed their warnings.
20. The plaintiffs further aver that despite the warning the 1st defendant must have gone on with the negotiation with these dissident groups for it was sometimes in February 1984 that the plaintiffs noticed that someone was excavating the land preparatory to building.”

The 1st defendant, in his statement of defence averred thus:

“4. This defendant admits

(i) Paragraphs 4 of the statement of claim except the averment relating to his residential address and

(ii) paragraphs 6, 8,9, and 15 of the said statement of claim.

7. With further reference to paragraph 5 thereof, this defendant avers that the land subject matter of this case was at all material times the absolute property under Yoruba native law and custom of the Ajamogun/Onikotun family.
8. This defendant has since remained in such possession and expended a sum of N902,514.00 as at the date of issue of the summons herein on the construction of a hotel on the said land.
9. This defendant avers that the plaintiffs were at all material times aware of

(i) his presence on the land and

(ii) the expenditure and investment by him of large sums of money on the land in the belief that his leasehold title is good and that notwithstanding they neglected for over 4 months after construction work had started before taking out the summons herein.

14. This defendant avers that by the facts mentioned in paragraphs 11 and 13 above as well as the full knowledge of all the members of the Ajamogun/Onikotun family (including the plaintiffs) of the presence of this defendant on the land since 1979 the plaintiffs are not entitled by reason of their

(a) acquiescence

(b) laches and

(c) stale claim

entitled to any reliefs herein.

In their amended statement of defence, the 4th, 5th, 6th and 8th defendants averred, inter alia, as follows:-

“2. The defendants admit paragraphs 1 to 6, 8, 9, 14 and 15 of the statement of claim.

5. The defendants admit that the power of attorney pleaded in paragraph 12 in existence, and was executed in their favour and also in favour of the 1st plaintiff by the accredited representatives of the whole family.
6. The defendants admit paragraph 16 of the statement of claim and will contend at the trial that the suit did not affect the validity of the said power of attorney.
7. These defendants will contend at the trial of this action that Musa Aina Bale was the Head and eldest member of Ajamogun Onikotun family since 1942 until his death on Sunday the 7th October 1979 and that no head of the family has since been elected.
8. The defendants will contend at the trial-

(a) That the 2nd to 8th defendants and the 1st plaintiff Mutairu Togun Ajamogun were appointed attorneys for Ajamogun and Onikotun family under and by virtue of an instrument dated 16th August 1977 and registered as No.92 Page 92 in Volume 1623 of the Land Registry in the office at Lagos.

(b) That pursuant to the said instrument the 2nd to 8th defendants and the 1st plaintiff executed the Deed of Lease dated 19th July 1979 and registered as No.7 at Page 7 in Volume 1784 of the Lands Registry in the office at Lagos in favour of the 1st defendant for valuable consideration.

(c) That money realised from the transaction was delivered to Musa Aina Bale (now deceased the then head of the family and was shared by the Bale amongst all the four branches of Ajamogun and Onikotun family.

(d) That Ajamogun/Onikotun family comprises four groups namely:-

(1) Ogundipe and (2) Erufa groups which make up Ajamogun Branch (3) Oshoade and (4) Ogunronbi groups which make up Onikotun Branch.

(e) That we attorneys were appointed from each of the four groups in Musa Aina Bale’s house thus:-

1. MutairuTogun )came from
2. Abudu Seidu )Ogundipe group

3 Momodu Gbadamosi ) came from

4. Rashidi Ashimi ) Erufa group
5. Fasasi Onikotun ) came from
6. Alade Nafiu ) Oshoade group
7. Yekini Alaba ) came from
8. Mustapha Kamiyosi ) Ogunronbi group

(f) That the 1st defendant is not trespassing on the family land since the said attorneys had put him in possession of the land.

Mr. Fasanu made the following submissions in both his brief and oral arguments:

(a) that although the plaintiffs pleaded that their family owned the land in dispute under native law and custom, the nature and kind of the custom or customary law that entitled the plaintiffs to have the power and the lease nullified because the head of family did not execute them was not pleaded; this omission is very fatal to plaintiffs’ case;

(b) that the Court of Appeal was in error to have reversed the findings of the trial High Court as to who was head of the Ajamogun/Olukotun family at the relevant time as the plaintiffs did not challenge the trial Courtfinding on the issue;

(c) that there was no ground for the reversal of the trial courtfinding on the issue of headship of the family;

(d) that the Court of Appeal was wrong to have treated the judgments pleaded by the plaintiffs in terms of res judicata as res judicata to be a proper issue must be clearly raised and facts establishing it must be clearly pleaded, which was not the case here. He cites Order 16 rule 11, High Court of Lagos State (Civil Procedure) Rules, 1972 and Amowo v. Attorney-General North/Central State (1973) 6 S.C. 47 in support; the plaintiffs did not raise the point either in their grounds of appeal or during oral argument; it was the Court of Appeal that look the point suo motu and resolved it without hearing the parties on it;

(e) in any event, the judgments pleaded are not capable of constituting res judicata because the conditions precedent to the application of the same were not satisfied.

(f) that the judgment the Court of Appeal gave prominence to as constituting estoppel is Exhibit PW2/C (at page 259) per Agoro, J. (as he then was) on 22/6/82 at the High Court of Lagos State but that judgment cannot create estoppel because the claims in that case did not include that of headship of the family and no such relief was granted. Any reference or finding therefore, as to headship of the family in that case is obiter which cannot grant estoppel. Further, Musa Aina Bale was not a party to the said case and neither was the family itself represented there. Any orders made therein are only binding on the parties to the case and their privies. Learned counsel cites Cardoso v. Daniel (1986) 2 NWLR (Pt.20) 1, in support.

(g) that even if res judicata or estoppel was available to be raised in the present case, it was not open to the plaintiffs to raise it as it is a long established principle that res judicata and estoppel are weapons of defence not offence and that it is only open to a defendant as a shield and not to the plaintiffas a sword. Counsel refers to Ajide v. Kelani (1985) 3 NWLR (Pt.12) 248, 269 and Adomba v. Odiase (1990) 1 NWLR (Pt.125) 105, 184.

I have given careful consideration to learned counsel’s submissions on the issue of the finding by the Court of Appeal as to who the head of the Ajamogun/Olukotun family was at the relevant time. I regret I am not persuaded to his viewpoint for the reasons I shall give presently.

The point is raised that the native law and custom or customary law under which the Ajamogun/Olukotun family held its land was not pleaded. This is only begging the issue. Paragraphs 5 and 6 of the amended statement of claim read:-

“5. The plaintiffs aver that all that piece of parcel of land situate lying and being at Mafoluku Lagos State and which is delineated on the Plan No. OGEK 38A-78 affixed to the Deed of Lease registered as No.7 at page 7 in Volume 1748 of the Register of Deeds kept at Lands Registry Lagos State forms portion of the large piece or parcel of land which has always been in joint possession and ownership of Ajamogun/Onikotun and Oniku families from time immemorial.

6. That Oniku died several years ago leaving no issue and the whole large trace of land devolved according to Native Law and Custom and (sic) Ajamogun and Onikotun family.”

The 1st defendant – appellant in this court – pleaded in paragraph 7 of his statement of defence thus:-

“7. With further reference to paragraph 5 thereof, this defendant avers that the land subject matter of this case was at all material times the absolute property under Yoruba native law and custom of the Ajamogun/Onikotun family,”

(italics is mine)

Having thus admitted that the land was held under Yoruba native law and custom, can he now complain that the plaintiffs have not stated under what native law and custom their family held the land in dispute. This apart, it is accepted on all sides that the land is situate in Lagos State, a Yoruba area where the Yoruba customary law obviously prevails. I have no hesitation in rejecting the submission that the plaintiffs’ failure to plead that their family held their land according to Yoruba customary law was fatal to their case. And there is copious case law on what the Yoruba customary land law is to admit of a special pleading by the plaintiffs on it.

The point is also made that the plaintiffs did not raise before the Court of Appeal the issue of estoppel on which that Court rested its judgment, nor did they challenge the trial court’s finding on the issue of headship of the Ajamogun/Olukotun family. With profound respect to learned counsel for the 1st defendant/appellant, his submission is not borne out by the record of appeal. On pages 370-371 of the record of appeal, are to be found the grounds of appeal (as amended) relied on by the plaintiffs at the Court of Appeal. Amended Ground (2) reads:-

“2. The learned trial Judge erred in law and on the fact when he contended that the plaintiffs/appellants challenge to the validity of the power of attorney was based on the evidence of 1st and 2nd appellants witnesses only for the trial Judge failed to consider rightly the evidential valves (sic) of all the judgment presented to court and thereby came to a wrong decision.

Particulars of Error.

The trial Judge in invaluating (sic) these judgments did not read or just glossed over each and every judgment and therefore did not give full interpretations to the said judgment and thereby came to the wrong conclusion that they or many of them are irrelevant to the issues raised in this suit.”

In arguing this ground in the appellants’ amended brief learned counsel opined:

“Exhibit PW2/C Suit No. ID/418/76 Muse Gbadamosi Ajamogun and 3 other; versus Alhaja Anifatu Adelekan and 7 others see page 259 of the record 4th and 6th defendants in that case are 3rd and 8th defendants respondent in this present suit. The Judge found as a fact that Muse Gbadamosi Ajamugun was the head of the family, see page 268 lines 19-24. This judgment binds both the plaintiffs in that suit and the defendants and also the plaintiffs in this suit and the 3rd and 8th defendants/respondents who are parties to the said suit. In this case the issue of who was the head of the family was finally determined by the Judge and surprisingly the defendants in that case pleaded and gave evidence that Rekia was the head of the family. The 6th defendant in that case, Momodu Gbadamosi Ajamogun gave evidence to support this 6th defendant was the most junior brother to Muse Gbadamosi Ajamogun he is the present 3rd defendant in this present case and statement of defence filed on his behalf and on behalf of the 4th defendant Mustapha Kamiyosi Olukotun the present 8th respondent is on page 107-109. In paragraph 12 they pleaded that Musa Aina Bale was the head of the family. They did not plead that Rekia was the head of the family as they did previously fact in issue in Suit No. ID/418/76 and which the Court rejected in that suit. Now the court accepted their defence and pronounced that Musa Aina Bale was the head.”

Mr. Fasanu, in his brief before that court replied to the submissions raised above.

He submitted:

“5.7 “The Judgments Tendered by Plaintiffs:

The plaintiffs are complaining that the learned trial Judge did not properly evaluate the judgment tendered by them to show that Musa Aina Bale was not the head of the family. (Exhibits PW2B pp.248-29I )

5.8 It is submitted that the learned trial Judge painstakingly considered each judgment separately, evaluated the same and came to the correct conclusion that they have no relevance to this case as far as the issue of headship of the family is concerned (at p.234 line 31-p.236)

5.9 As pointed out by the learned trial Judge, the relevant one out of the judgments could have been Exhibit PW2C, the judgment of Agoro, J. where he actually declared that Muse Gbadamosi Ajamogun was the head of the family. Apart from the reasons given by the learned Judge why the said judgment is not relevant here (at p.235 line 24-236) especially that the plaintiffs there were merely claiming that Muse was “the principal member of Ajamogun family” …. and not the head, the judgment is also not relevant for the following reasons:

(i) Only two of the plaintiffs here (the 3rd and 4th) were plaintiffs in that case and only two of the defendants here

(the 3rd and 8th) were defendants there;

(ii) the case was not prosecuted on behalf of the family and neither was it defended on behalf of the family;

(iii) Musa Aina Bale was not a party neither did he give evidence in that case;

(iv) the defendants in that case, as vendors of the conveyance in issue, did not purport to convey pursuant to the power neither was the power in issue there;

(v) The main issue in the case, as stated in the judgment (at p.267 line 13) was neither one Madam Rekiatu Ajamogun was the head of the family and not whether Muse Gbadamosi or Aina Bale was the head.”

He, therefore, cannot be correct to submit before us that the finding of the trial court or headship of the Ajamogun/Olukotun family was never raised by the plaintiffs before the Court of Appeal. Neither would he be right and fair to suggest that that Court took the point ,suo motu and resolved it without hearing the parties on it. Indeed the points raised in paragraphs 5.7 to 5.9 of his brief are again being raised in his brief in this court.

I now come to the crucial point which is the 1st appellant’s fresh pin of this appeal, and that is whether the court below was right to hold that the defendants were estopped by the finding in Suit No. 1D/418/76 (Exhibit PW2/C) to the effect that Muse Gbadamosi Ajamogun was the head of the Ajamogun/Olukotun family, from missing in the present action that Musa Aina Bale was the head of the family at the relevant period. Akpata JCA in his lead judgment observed:

‘”The question now is whether he was right to have come to the conclusion that Musa Aina Bale was the head of the family. I agree with Mr. Fasanu, learned counsel for the 1st respondent that the learned trial Judge considered the judgments tendered as Exhibits. He did so from pages 235-236 of the records. It is however the complaint of Ms. Kuye, learned counsel for the appellants, that the trial Judge did not do so ‘more positively and relevantly.’ It is my view that the learned trial Judge erroneously failed to apply a material finding of fact relevant to the issue in this case. In Suit No, 1D/418/76. Exhibit PW2/C, between Muse Gbadamosi Ajamogun and 3 Others v. Alhaja Adelekan and 7 Others, the learned trial Judge Agoro. J held thus at page 269 (of this record of appeal):

‘The evidence of the only witness for the defendants was to the effect that there was no head of the family at the time of the sale of portion of the family properly to the 1st defendant. The true position of things from the evidence which I have accepted was that sometime in 1965. Muse Gbadamosi Ajamogun (1st plaintiff) was duly appointed head of the Ajamogun/Onikotun family at a family meeting. The 1st plaintiff who has attained a ripe age of 90 years is still alive but due to ill-health he could not testify during this proceedings. The evidence of the only witness for the defendants also showed that a faction of the Ajamogun/Onikolun family resolved to sell and did sell portion of the family property to the 1st defendant without obtaining the consent or concurrence of the head of the family (1st plaintiff) nor did the 2nd-8th defendants consult their principal members of the family.’

The judgment in Exhibit “PW2/C” was delivered on 22/6/82. The present suit, the subject of this appeal was filed on 24/2/84. Going by the judgment of Agoro, J. Muse Gbadamosi Ajamogun was at first the only plaintiff, but during the proceedings, the 2nd-4th plaintiffs sought and obtained court order dated 14th May. 1979 to be joined as co-plaintiffs. It is during the pendency of that case that the power of attorney Exhibit PW2/E was executed and the lease Exhibit PW2/A to the 1st respondent was executed. This accord with paragraph 16 of the statement of claim which I have already reproduced and which I again reproduce for case of reference that ‘at the time the power of attorney was executed Musa Gbadamosi Ajamogun was in court with his most junior brother. Momodu Gbadamosi the 3rd defendant and some other members of the family for selling family land without the knowledge and consent and approval of other principal members of the family in Suit No. ID/418/76.’

It was the contention of Mr. Ladimeji, learned counsel for the 4th, 5th, 6th and 8th respondents, that learned trial Judge was not bound to follow the decisions or judgments pronounced by other Judges in related cases because (1) the facts involved in those cases are not on all fours with the facts of this case, and (2) even if the facts are on all fours, those decisions being decisions of courts of concurrent jurisdiction are not binding on the learned trial Judge but only persuasive. Besides, argued the learned counsel, the said judgments Exhibits “PW2/B, PW2/C, PW2/D and PW2/E are inadmissible in law and ought not to have been admitted in evidence even though tendered by the consent of all parties.

With due respect to learned counsel, he appears to be unmindful of the rule that every judgment is conclusive proof as against parties and their privies of fact directly in issue in the case, actually decided by the court. This principle of law is covered by section 53 of the Evidence Act. Exhibit PW2/C was in respect of a case between members of the same family in respect of family land involving the interest of all the plaintiffs and defendants, except the first defendant, in the present case. None of the members of the family in the present case claimed to be ignorant of the judgment Exhibit PW2/C. None of them pursued his constitutional right as an interested party to appeal against the far-reaching decision touching on the headship of the family. Indeed the 3rd and 8th defendants in this case Momodu Gbadamosi Ajamogun and Mustapha Kamiyomi were the 6th and 4th defendants respectively in Suit No. 1D/418/76 Exhibit PW2/C.

Even if the decisions had been given by a customary court, Ilori. J. was bound to act on it. It is also elementary that the fact that a judgment was wrongly decided will not prevent it from operating as res judicata. (See the old case of Fabunmi Lorinde v. Salami Ajiko (1940) 6 WACA 108. Also the fact that a finding of fact was made in the earlier judgment during the pendency of the action in which the plea is raised will also not prevent it from operating as res judicata.

(See Bali v. Holmen (1956) 1 WLR 1359 and (1956) 3 All E.R.449)

The learned trial Judge Ilori, J was conscious of the binding effect of the judgment of Agoro J. The finding that Muse Gbadamosi Ajamogun constitutes an issue estoppel. Unfortunately, the judge rejected the finding of fact reached by his brother in a subtle manner. Said he:

‘This averment does not claim that he (Muse Gbadamosi Ajamogun) was the HEAD of the AJAMOGUNONIKOTUN family. The difference in law between the term ‘Head’ and the term ‘principal members’ of a family, and the legal implications of that difference in the disposition of family land: is in my view of such great consequences that a plaintiff who pleads only that he is a principal member of the family cannot be rightly said to claim by that averment, that he is the HEAD of that family. Be that as it may, the defendants in that suit averred in paragraph 5 of their statement of defence that Madam Raliatu Ajamogun was at the material time the oldest and Head of the family. I do not find on the records, anything to show that the plaintiffs therein, filed a reply to rebut the new issue introduced by the defendants averment on the headship of the family.

My learned brother, Agoro. J prefixed his judgment with this caution: that the trial of the action commenced on 17th April, 1980 in the absence of the defendants and their counsel and that the three witnesses of the plaintiffs were not subjected to any cross-examination. His Lordship nevertheless held that Muse Gbadamosi Ajamogun was ‘the head and principal member of Ajamogun/Onikotun family’ at the time material to the points issue in that case.

There is no doubt that the learned trial Judge Ilori J. picked holes in the judgment of Agoro. J .. so as to depart from it. It is wrong. As I have already stated, the fact that a judgment was wrongly decided is no ground for not giving effect to it as a res judicata or issue estoppel”

Does the finding by Agoro. J. in 10/418/76 to the effect that Muse Gbadamosi Ajamogun was head of the Ajamogun/Olukotun family binding on the defendants in the present suit as to constitute res judicata or issue estoppel against them, as held by the Court of Appeal

I had cause in a recent judgment of this Court to discuss the issue of res judicata and issue estoppel. In Nwopara Ogbogu & Ors. v. Nwonuma Ndiribe & Ors SC 256/1990 a judgment delivered on 26th day of June, 1992: (1992) 6 NWLR G (Pt.245) 40. I observed thus:

“It is trite that where a court of competent jurisdiction has settled, by a final decision, the matters in dispute: between the parties neither party or his privy may re-litigate that issue again by bringing a fresh action. The matter is said to be res judicata.. The estoppel created is one by record inter panes. Now there are two kinds of this estoppel. The first is called cause of action estoppel while the second is known as issue estoppel. Idigbe JSC distinguished the two types of estoppel by record infer partes in Fadiora v. Gbadebo (1978) 2 S.C. 219, 228-229 in these words:

Now, there are two kinds of estoppel by record inter partes or per rem judicatam as it is generally known. The first is usually referred to as ’cause of action estoppel’ and it occurs where the cause of action is merged in the judgment, that is Transit in rem judicatam -See King v. Hoare (1844) 13 M & W 495 at 504. Therefore, on this principle of law (or rule of evidence) once it appears that the same cause of action was held to lie (or not to lie) in a final judgment between the same parties, or their privies, who are litigating in the same capacity (and on the same subject matter), there is an end of the matter, they are precluded from re-litigating the same cause of action. There is however, a second kind of estoppel inter partes and this usually occurs where an issue has earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in these circumstances. “issue estoppel” arises. This is based on the principle of law that a party is not allowed to (i.e. he is precluded from) contending the contrary or opposite of any specific point which having been once distinctly put in issue, has with certainty and solemnity been determined against him. See Cutram v. Morewood (1803) 3 East 346. Issue estoppel applies whether the point involved in the earlier decision is one of fact or law or one of mixed fact and law. However, for the principle to apply, in any given proceedings, all the pre-conditions to a valid plea of estoppel inter partes or per rem judicatam must apply, that,(1) the same question must be for decision in both proceedings (which means that the question for decision in the current suit must have been decided in the earlier proceedings), (2) the decision relied upon to support the plea of issue estoppel must be final (3) the parties must be the same (which means that parties involved in both proceedings must be the same) (per se or by their privies).”

I still hold to the view expressed by me in this passage. See also Ladega v. Durosimi (1978) 3 S.C. 91, 102-103 where Eso, J.S.C. delivering the judgment of this court said:-

“The doctrine of res judicata, which finds expression in the maxim ‘nemo debet bis vexari pro una et eadem causa, lays emphasis on the ‘causa. It is the cause of action that would have been determined and any suit, brought to relitigate such action, which has been determined, would be dismissed. Where, however, what is raised in an issue estoppel, then, it is only in regard to that issue, that has been raised that the parties to an action, shall be bound and the proper course to take would be one of striking out all the paragraphs in the pleadings raising that issue.

Though the whole concept of ‘estoppel’ is viewed as a substantive rule of law (see Haustead v. Commissioner of Taxation (1926) A.C. 155 at pp.165-166 and also Canada and Dominion Sugar Coy, Ltd. v. Canadian National West Indies) Steamships Ltd. (1947) A.C. 46 at p.S6, it is essentially a rule of evidence. All the paragraphs of the statement of claim in this case raise the issue in respect of which the plaintiffs are estopped. So also does the indorsement on writ of summons. Neither the indorsement on the writ of summons nor the statement of claim can stay.”

I agree with the above view. And with the law above stated at the back army mind I shall now proceed to consider the effect Exhibit PW2/C has on the present action. The Suit No. 1D/418/76 that is, Exhibit PW2/C concerned itself with the land of Ajamogun/Olukotun family. The claims in that case read as follows:-

(a) Order setting aside the sale and the deed of conveyance dated the 4th day of May, 1974 and registered as No.48 at page 4R in Volume 1453 of the Register of Deeds kept at the Lagos State Land Registry. Lagos, Nigeria, entered into between the 2nd to 8th defendants of the one part and the 1st defendant of the other part.

(b) Declaration of title according to Native Law and Custom in favour of Ajamogun/Onikotun families to all that piece or parcel of land situate, lying and being at Mafoluku, Oshodi..

(c) N500.00 being damages for trespass committed by the 1st defendant on all that piece or parcel of land situate at Airport Road, Arijalo, Lagos State.

(d) Perpetual injunction against the 1st defendant from committing further acts of trespass on the said piece or parcel land.”

Judging from these claims it cannot be seriously disputed that the subject matter of the suit in that case was the same as the subject matter in the present proceedings as the land, the subject matter of the present proceedings, forms part of the family land being litigated upon in that earlier proceedings. It is equally not in dispute that the decision of Agora, J. given on 22/6/82 is final as there was no appeal against it. The question that however remains to be resolved is as to whether the parties in the present case can be said to be the same as the parties in that earlier case. In ID/418/76 the plaintiffs were:

“1. Muse Gbadamosi Ajamogun

2. Ayi Gbadamosi Ajamogun
3. Taiwo Gbadamosi Ajamogun
4. Amusa Gbadamosi Ajamogun”

and the defendants were:-

“1. Alhaja Anifatu Adelakan

2. Saminu Kamiyose Olukotun
3. Rafiu Ashimi Ajamogun
4. Mustapha Kamiyose Olukotun
5. Momodu Ashimi Ajamogun
6. Momodu Gbadamosi Ajamogun
7. Adamo Ogisanyi Olukotun
8. Isau Osenatu Ajamogun.”

The 3rd defendant in the present action is the 6th defendant in that earlier suit. Similarly the 8th defendant in the present suit was the 4th defendant in the earlier suit. The 3rd, 4th and 5th plaintiffs in the present action were the 2nd, 3rd and 4th plaintiffs in that earlier suit. The 1st and 2nd plaintiffs in the present suit gave evidence for the plaintiffs in the earlier suit. The 3rd defendant in the present suit gave evidence as the only witness for the defence in that case. It would appear that the cause of the dispute leading to that action, as well as other actions pleaded and established by evidence, was a split in the family over headship of the family and the right to dispose of family land. Muse Gbadamosi Ajamogun who was 1st plaintiff in ID/418/76 was the head of the faction to which the plaintiffs in the present action belong: while the 2nd faction was headed by Musa Aina Bale to which the 2nd to the 8th defendants in both the earlier and the present actions belong. The issue that arose in that earlier action, in determining the validity of the sale by the 2nd to the 8th defendants in the action to the 1st defendant therein was the question: who was the head of the family

Evidence was given on both sides on that issue and it was resolved in favour of Muse Gbadamosi Ajamogun. The same issue has again arisen in this case in the process of determining the validity of the lease granted to the 1st defendant. In my respectful view, the determination of the issue of the headship of the family in the earlier action having regard to the circumstances surrounding the institution and prosecution of that action would be binding on every member of the family notwithstanding that the parties in the earlier action sued and were sued in their personal capacities. This is so as the other members of the family must have stood by and watched other members fight their case for them. They are, therefore, estopped by conduct or by standing by from denying that Muse Gbadamosi Ajamogun was the head of their family – see: Ekpoke v. Usilo (1978) 6-7 S.C. 187. 200-203 where Obaseki, J.S.C. delivering the judgment of this court observed:

“On the issue of identity of parties, the evidence of the 2nd defendant that Jeddo community was not sued in the previous suit in the Native Court was a statement of fact as regards the parties that physically appeared before the court but a scrutiny of the evidence and the judgment of the Native Court discloses that the defendants therein defended the action in the same interest as the present plaintiffs.

In the case of Madukolu and others v. Nkemdilim (1962) 1 All NLR 587 at 593 Bairamian F.J. dealing with the issue of res judicata observed:

‘The rule of res judicata is derived from the maxim of nemo debet his vexari pro eadem causa. It is the causa that matters: and a plaintiff cannot by formulating a fresh claim, relitigate the same cause. That is why section 53 of the Evidence Act does not speak of the claim but of the facts directly in issue in the previous case. The previous case was in the Native Court, and as there are no pleadings, one must go by the substance as disclosed in the proceedings. The dispute was on title, and the ultimate decision was against the plaintiffs on their basic cause of action that they were the owners and grantors of the land occupied by the defendant: nor is it true that he raised the issue of title too late. The plaintiffs were debarred by that decision from claiming a declaration of title in a fresh case based on the same cause of action.’

We find that Exhibit B contains sufficient facts to establish that the defendants in that suit fought the issue on the basis that the land Ogbigho or Okeghigho was the communal property of the people of Jeddo . The 1st defendant in that suit 64/56 (see Exhibit B) said:

‘We do not claim title to the said land of Ogbigho besides the right of the town people’

The 1st witness for defence, Mr. B.R. Abaide in the same case said in his testimony:

‘The land in question is the accredited property of Jeddo people and even the 1st and 2nd defendants exclusively.’

Also the 2nd witness for the defence, Mr. Towone Bayaghon of Jeddo

…….. plaintiff instead of issuing an action against us the principal parties ignored us and issued this summons against 1st and 2nd defendants claiming a title to the land in question.’

The general rule of law undoubtedly is that no person is to be adversely affected by a judgment in an action to which he was not a party, because of the injustice in deciding an issue against him in his absence. But this general rule admits of two exceptions, one is that a person who is in privity with the parties, a “privy” as he is called is bound equally with the parties, in which case, he is estopped by res judicata: the other is that a person may have so acted as to preclude himself from challenging the judgment in which case he is estopped by his conduct. Nigerian Law recognises that the conduct of a person may be such that he is estopped from relitigating the issues all over again. This conduct sometimes consists of active participation in the proceedings, as for instance, when a tenant is sued for trespassing on his neighbour’s land and he defends it on the strength of the landlord’s title and does so by the direction and authority of the landlord. On other occasions, the conduct consists of taking actual benefit from the judgment in the previous proceedings such as happened in re Lord Wilkinson v. Blades (1896) 2 Ch 788. These two instances cover the case now on appeal before us. It may also be regarded as a case of standing by and watching them fight out or at most giving evidence in support of one side. To determine this question, the principle of law stated by Lord Penzance in Wytcherlay v. Andrews (1971) LR 2 P & M 327. 328 affords a useful guide. The full passage is in these words:

‘There is a practice in this court by which any person having an interest may make himself a party to the suit by intervening, and it was because of the existence of that practice that the judges of the Prerogative court held that if a person knowing what was passing, was content to stand by and see his battle fought by somebody else in the same interest, he should be bound by the result and not be allowed tore-open the case. That principle is founded on justice and common sense and is acted upon in courts of equity where, if the persons interested are too numerous to be all made parties to the suit, one or two of the class are allowed to represent them and if it appears to the court that everything has been done bonafide in the interest of the party seeking to disturb the arrangement, it will not allow the matter to be re-opened.’

Lord Denning delivering the judgment of the Board of Privy Council in the case of Nana Ofori Atta II v. nana Abu Bonsra II (1958) AC 95 at 103 observed:

‘But there is no reason why in West Africa it should not be applied to conditions which are found appropriate for it there but which have no parallel in England. It seems to be the recognised thing in this part of West Africa for all persons with the same interest in a land dispute to range themselves on one side or the other. Sometimes they apply to be joined as parties. On other occasions they regard the named party as their champion and support him by giving evidence. If he wins they reap the fruit of victory. If he fails, they fall with him and must take the consequences.’

The 1st defendant in this present action is a privy in estate of the 2nd to the 8th defendants in that he derived his title from them, see: Coker v. Sanyaolu (1976) 910 S.C. 203.223, and being a privy he is bound equally with the parties. Consequently I have no hesitation whatsoever in holding that the finding of Agora, J. in 1D/418/76 to the effect that Muse Gbadamosi Ajamogun was at the relevant period the head of the Ajamogun/Olukotun family was binding on all the defendants in the present action and that that finding constitutes issue estoppel against them.

Learned counsel for the 1st defendant/appellant had argued that there was no claim in the earlier action for a declaration as to the headship of the family and that therefore, the finding by Agaro. J. was obiter. With profound respect to learned counsel. I do not agree with him. The cause of action in 1D/418/76 had for its success or failure a determination of the issue of headship of the family and as that issue was raised and distinctly determined in that case it is not open to the defendants to raise it in the present action again. I agree with the law exposed by Lord Denning MR, and ,Jiplock LJ in their dicta in Fidelitas Shipping Co. Ltd. v V/O Exportchleb (1966) 1 QB 630,640. In that case Lord Denning observed:-

“That issue having been decided by the court, can it be re-opened before the umpire I think not. It is a case of ‘issue estoppel’ and ‘fact estoppel.’ a distinction which was well explained by Diplock LJ in Thoday v. Thoday (1964) p.181, 198; (1964) 2 W.L.R. 371. 385; (1964) 1 All E.R. 341,352 C.A. The law, as I understand it, is this: if one party brings an action against another for a particular cause and judgment is given upon it, there is a strict rule of law that he cannot bring another action against the same party for the same cause. Transit in rem judicatam: See King v. Hora 1844) 13M&W. 494, 504, But within one cause of action, there may be several issues raised which are necessary for the determination of the whole case. The rule then is that, once an issue has been raised and distinctly determined between the parties, then as a general rule, neither party can be allowed to fight that issue all over again. The same issue cannot be raised by either of them again in the same or subsequent proceedings except in special circumstances. see Badar Bee v. Habib Merican Noordin,(1909) A.C. 615 per Lord Macnaghlen Ibid, 623. And within one issue, there may be several points available which go to aid one party or the other in his efforts to secure a determination of the issue in his favour. The rule then is that each party must use reasonable diligence to bring forward every point which he thinks would help him. If he omits to raise any particular point, from negligence, inadvertence, or even accident (which would or might have decided the issue in his favour), he may find himself shut out from raising that point again, at any rate in any case where the self-same issue arises in the same or subsequent proceedings. But this again is not an inflexible rule. It can be departed from in special circumstances.”

and at page 642 to 643 of the report – Diplock LJ also observed:

“In the case of litigation the fact that a suit may involve a number of different issues is recognised by the Rules of the Supreme Court which contain provision enabling one or more questions (whether of fact or law) in an action to be tried before others. Where the issue separately determined is not decisive of the suit, the judgment upon that issue is an interlocutory judgment and the suit continues. Yet I take it to be too clear to need citation of authority that the parties to the suit are bound by the determination of the issue. They cannot subsequently in the same suit advance argument or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is by way of appeal from the interlocutory judgment and, where appropriate, an application to the appellate court to adduce further evidence: but such application will only be granted if the appellate court is satisfied that the fresh evidence sought to be adduced could not have been available at the original hearing of the issue even if the party seeking to adduce it had exercised due diligence.

This is but an example of a specific application of the general rule of public policy, nemo dabet bis vexari pro una et eadem causa. The determination of the issue between the parties gives rise to what I venture to call in Thoday v. Thoday (1964) p.181, 198 an ‘issue estoppel.’ It operates in subsequent suits between the same parties in which the same issue arises. A fortiori it operates in any subsequent proceedings in the same suit in which the issue has been determined. The principle was expressed as long ago as 1843 in the words of Wigram V.C. in Henderson v. Henderson (1843) 3 Hare 100. 114 which were expressly approved by the judicial Committee of the Privy Council in Hoystead v. Commissioner of Taxation (1926) A.C. 155. 170. I would not seek to better them.

‘I believe I state the rule of the court when I say, that where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.’”

See also Ijale v. A.G. Leventis (1965) 1 All NLR 176. 180. The result of all these is that the learned trial Judge was clearly in error to have allowed evidence to be led by the defence on the issue of the headship of the Ajamogun/Olukotun family; he should have struck out the paragraphs of the statements of defence contending to the contrary of what was decided in ID/418/76 by Agora J. The Court of Appeal is clearly right to have held that the defendants were estopped from re-opening that issue allover again.

It is also contended by learned counsel for the defendant/appellant that issue estoppel was not available to the plaintiffs but rather to the defendants it being a matter for a shield rather than a sword. Learned counsel would be right if the plea applied here is res judicata as is commonly known. A successful plea of res judicata ousts the jurisdiction of the court in the proceedings in which it is raised. The plaintiff cannot be seen to be raising a plea that will oust the jurisdiction of the court to entertain the action he has brought before that court. But a plea of issue estoppel is a different matter. It is available to either party as Oputa J.S.C. in Aro v. Fabolude (1983) 2 S.C. 75; (1983) 1 SCNLR58, (1983) 14 NSCC 43 at page 51 of the latter.

“As part of the principle that society must discourage prolongation of litigation, the doctrine has been developed that a party to civil proceedings is not allowed to make an assertion against the other party. Whether of facts or legal consequences of facts, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential element in his previous cause of action or defence, in a previous suit between the same parties or their predecessors in title, and was determined by a court of competent jurisdiction, unless further material be found which was not available, and could not, by reasonable diligence, have been made available, in the previous proceedings. (See: Mills v. Cooper (supra) at page 104)’

(Italics mine)

I am satisfied from all I have said above that the Court of Appeal is clearly right in holding that the finding of Agora, J. in 10/418/76 (Exhibit PW2/C) is binding on the defendants in this case and estops them from raising in this present action the issue of headship of the Ajamogun/Olukotun family, that issue having been firmly decided in the earlier case, that is 1D/418/76.

QUESTIONS 7:

The power of attorney given to the 1st plaintiff and the 2nd to the 8th defendants without the consent of the head of the family is void and being so void nothing done thereunder by the donees of that power could be valid. Consequently, the court below is clearly right to hold that the lease agreement entered into by the 1st plaintiff and the 2nd to the 8th defendants on behalf of Ajamogun/Olukotun family in favour of the 1st defendant/appellant is void and of no effect. That Court is however wrong to set the lease aside for ex nihilo nihi venit. The proper order to ask for is declaration to that effect – See: Tika-Tore Press Ltd. v. Abina (1973).

Can this court now amend the record to reflect the proper claim and give judgment on it This court, like the Court of Appeal, has an inherent power to order an amendment of the record of the trial so as to comply with the facts proved and the decision given – See: Thynne v. Thynne (1955) 3 All EK 129: Clack v. Wood (1881-2) 9 Q,BD 276; England v. Palmer (1955) 14 WACA 659; 661; Metal Construction (W.A.) Ltd. & Ors. v. Mrs. D.A. Migliore & Anor. (1979) 6-9 S,C 163. 171-173 where Sowemimo J.S.C. (as he then was) delivering the judgment of this court, observed:

A Court of Appeal has an inherent power to amend the record of the trial court so as to comply with the facts proved before that court and decision given by it. This is a very necessary power which the Appeal Court always exercises if and when necessary to prevent the occurrence of substantial injustice; whether the required amendment be formal (as in Divisional Chief Gbogbolulu of Vakpo v. Head Chief Hodo (1941) 7 WACA 164) or quasi-substantial (as in Clock v. Wood (1881-2) 9 Q.B.D. 276). In Gbagbolulu, a writ of summons in respect of an action in the Magistrate’s Court did not show that the proceedings related to the parties in their representative capacities but the action was clearly fought on that basis, the West African Court of Appeal allowed an amendment (even at that stage of the proceedings) to avoid the occurrence of substantial injustice – see 7 WACA at 165,

In Clack v. Wood (supra), the jury in the trial Couurt had found certain issues in favour of the plaintiff but not on all the issues; the plaintiff ought therefore not to succeed. The verdict therefore should have been in favour of the defendant. On appeal by the plaintiff the Court of Appeal amended the record by entering verdict for the plaintiff ONLY on the specific issues the jury had found in his favour but affirmed the judgment i.e. gave judgment for the defendant Jessel MR. made the following observation:

The proper way of dealing with the case at the time would have been to enter a verdict for the plaintiff on the two issues respecting the fraudulent representations, and then it would have been competent for the judge to deal with the judgment.

The question remains what ought this court to do now The orders applicable to the case are Order 58, rule 5, and Order 59, rule 2, If the application had been made at the time to the Judge, there is no doubt that he could have amended the record under Order 59, rule 2 and directed the finding of the jury to be altered, Then Order 58 rule 5 says that ‘the Court of Appeal shall have all the powers and duties as to amendment and otherwise of the court of first instance’ and again, that ‘the Court of Appeal shall have power to give any judgment and make any order ‘Which ought to have been made, and to make such further order as the case may require.’ Therefore it is plain that we can order the record of the trial to be amended

It seems to us that the powers of the Federal Court of Appeal under section 16 of Decree No.43 of 1976 and of this Court under section 22 of the Supreme Court ACT No.12 of 1960 are wide enough as to allow the type of measure taken by the Court of Appeal in Clack v. Wood (supra) pursuant to Order 58 mentioned in that case: and this is quite apart from the inherent powers of this court to prevent the occurrence of any substantial injustice. The case having been fought substantially in the Federal Revenue Court on the basis of the right to have an alteration of the Register of Shares, there could have been no injustice to the appellants if an amendment had been carried out in that court: at best they could have been entitled to their costs. We are satisfied that such an amendment is desirable even al this stage, in all the circumstances of this appeal. It was for this reason that we allowed the amendment and made the orders already referred to-

See also Adekeye v. Akin-Olugbade (1987) 2 NWLR (Pt.60) 214. This inherent power apart, section 22 of the Supreme Court Act and Order 8 rule 12(1) of the Supreme Court Rules empower this Court to make an order of amendment within the competence of the trial court. And order 25 rule 7 of the Lagos State High Court Rules 1972 empowers the trial court to amend any defect or error in proceedings. And this court can at this stage amend the record -see: Theodore Taylor v B.T. Agbanavor (1954) 14 WACA 470.471. It is my respectful view that this is a proper case where this court ought to exercise its power to amend the second relief sought by the plaintiffs in the trial court in order to do justice in this case. As Bowen, L.J. put it in Cropper v. Smith (1884) 26 Ch. D.700 at 710-711 – and I entirely agree with him:

“I think it is a well established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes which they make in the conduct of their case by deciding otherwise than in accordance with their rights. I know of no kind of error or mistake which if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake, but for the sake of deciding matters in controversy and I do not regard such amendment as a matter of favour or grace It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much as matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right.”

In the circumstance I would amend paragraph 25(2) of the amended statement of claim to read:

An Order declaring as null and void the lease dated this 19th day of July 1979 and registered as No.7 at page 7 in Volume 1784 of the Register of Deeds kept at the Lagos State Land Registry Lagos Nigeria.”

and I enter judgment in favour of the plaintiffs accordingly.

QUESTIONS 8:

This question raises the issue of propriety of granting the plaintiffs the reliefs they claimed having regard to their conduct. Learned counsel for the 1st defendant/appellant submits, both in his brief and in oral argument before us, that the plaintiffs did not comply with equitable principles in that they did not come with clean hands and did not take the action bonafide and that granting the case of the plaintiffs will no doubt perpetrate equitable fraud. I cannot see any justification for the submissions made. In paragraphs 19 to 21 of their amended statement of claim, the plaintiffs averred:

“19. The plaintiffs further aver that prior to the said lease the 2nd plaintiff and some other principal members saw the first defendant scouting on the land and warned him not to buy and explained that he (would be) buying a law suit if he did not heed their warnings.

20. The plaintiffs further aver that despite the warning the 1st defendant must have gone on with the negotiation with these dissident groups for it was sometimes in February 1984 that the plaintiffs noticed that someone was excavating the land preparatory to building.
21. The plaintiffs with diligent search found out that the 1st defendant is the person building on the disputed land, night and day with the help of thugs. The 1st defendant and his thugs threatened to kill the plaintiffs if they ventured near.”

Evidence was led in proof of the above averments. The 2nd plaintiff in his evidence testified thus:

“I know the 1st defendant. I know him when he went on Ajamogun/Onikotun’s land. That led to a quarrel in consequence of which we are in court now. The cause of the quarrel is because in 1979 I met him on Ajamogun/Onikotun’s land. He had a caterpillar there and was working on the land.

I reported him to my father. I took the police to arrest the 1st defendant as a result of my discussions with my father. My father was invited to the police station. He made a statement there. There was nothing between me and the 1st defendant before he went on the land with a caterpillar.”

later in his evidence in-chief, he deposed:

“It is not true that when our family saw the 1st defendant on the land and (sic) did nothing. I challenged him when I saw him on the land.”

The witness was not challenged on this point by the defence, the 1st defendant did not give evidence at the trial. From this piece of evidence therefore, the plaintiffs could not be accused of standing by and allowing the 1st defendant/appellant develop their land only to turn round later and institute this action against him. The 1st defendant/appellant ought to have exercised caution and to have allowed the family squabble to be resolved first before deciding whether or not it would be prudent of him to develop the land. This disposes of the last question posed for determination in this appeal.

All the issues raised in this appeal having been decided against the appellant, the appeal fails and it is hereby dismissed by me with costs in favour of the first set of plaintiffs/respondents assessed at N1,000.00.

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Other Citation: (1992) LCN/2511(SC)