Samuel Fadiora & Anor. (In Re Samuel) V. Festus Gbadebo & Anor (1978)

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IDIGBE, J.S.C. 

The principal question raised in this appeal and which calls for the decision of this court is what exactly is the meaning and effect of an order (by an appellate court) for a trial de novo on subsequent proceedings pursuant to that order In the High Court of the former Western (now Oyo) State holden at Oshogbo the respondents as plaintiffs claimed from the defendant (the appellant herein and another) the following reliefs:

“(1) Jointly and severally…a declaration of title to a piece of farmland situated at Wanikin Village at Aye in Ife Division:

(2) 150pounds being damages for the crops (on), and use of the said farmland…

(3) An injunction restricting the defendants and their agents from using … the said land … ”

Pleadings were filed by the parties following an order of the High Court; and in paragraphs 8, 12, 13 and 14 of their statement of defence the defendants pleaded thus:

“(8) The first defendant avers that the farmland in dispute was granted to his late father Joshua Fadiora by the late Oni Ajagun Ademiluyi about 40 years ago.

(12) The first defendant avers that only in 1954 the first plaintiff in this present case instituted an action Suit No. 45/54 in the Ife Land Court against Joshua Fadiora the father of the first defendant and lost.

(13) The Counsel of the defendants intends to raise a plea of res judicata during the proceedings of this case in view of TWO previous judgements of courts of competent jurisdiction.

(14) The defendants aver that there are about 100 tenants on the land in dispute who pay customary Ishakole to the father of the first defendant annually until his death in 1961 and thereafter to the first defendant.”

On the 11th day of May, 1966, when the case came up before Fakayode J. (as) he then was sitting in the High Court of Oshogbo, upon an interlocutory application specially for consideration of the plea of res judicata set up by the defendants (appellants herein) in paragraphs 12 and 13 of the statement of defence, the following notes appear:

” Olukole [for defendants] raises the plea of res judicata in paragraphs 12 and 13 of the statement of defence. In 1954 there was a land case between the first plaintiff on behalf of the Wanikin Family against Joshua Fadiora the father of the first defendant. The 1954 claim was in respect of (a) declaration of title to this same land (b) 50pounds cost of palm fruits reaped and (c) injunction. This is the proceeding and judgement in the 1954 suit (judgement and proceedings in the 1954 suit … Festus Gbadebo Vs. Joshua Fadiora tendered and admitted as Exhibit A without objection). This is the Plan No. D K 698 in support of Exhibit A. This is the judgement of the Appeal Court (tendered and marked Exhibit C without objection). Plaintiffs plan in this case is Plan No. AK 896 on which the land in dispute is edged Green. (Plan No. AK 896 is admitted as Exhibit D without objection); the boundaries of the land in Exhibit B and D are the same as well as the acreage. The parties in the two cases are the same or they are privies..OMISORE [for the plaintiffs] replies and says: The court which decided Exhibit’ A’ had no jurisdiction, say, the court is only for appeals and not for original jurisdiction. Tenders Photostat copy of the panel of the Oni’s [of Ife’s] court of appeal dated 18/12/52. At this stage Mr. Omisore says he would like an adjournment to enable him subpoena the staff of the Ministry of Justice to come and tender the Warrant of the Court which sat to decide Exhibit ‘A’ Ruling: Case is adjourned at the instance of plaintiffs’ counsel to 24/5/66 with 10 guineas costs”. On the adjourned date (i.e. the 24th May, 1966, however, the following notes appear:

OMISORE says in order that a plea of res judicata may stand the court which decided the case must have jurisdiction. The court which decided Exhibit ‘A’ was not existing at the time …

Ruling: The plea of res judicata is overruled. The burden is on the person alleging that Exhibit ‘A’ is a res judicata to prove that the court which decided Exhibit ‘A’ had jurisdiction to do so. One way of proving such jurisdiction is to tender the Warrant of the court which made the decision or to prove jurisdiction by official copy of the Warrant or by (its) publication in (the) gazette. Native courts and customary courts are inferior courts and so any person alleging that these courts jurisdiction when the question of their Jurisdiction is in issue must prove such jurisdiction. In this case the burden is on the defendants to establish the court’s jurisdiction. They have failed to do so and their plea of res judicata fails with 5 guineas costs to plaintiffs.” Case is adjourned to 6/9/66.