Chief Karimu Ajayi Arubo V. Fatai Ayinla Aiyeleru & Ors (1993)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C.

This is an appeal by the plaintiffs against the judgment of the Court of Appeal, Lagos Division. In the leading judgment of Awogu, J.C.A. to which Ademola, J.C.A. and Akpata. J.C.A. (as he then was) concurred, that court allowed an appeal against the ruling of a Lagos High Court which had upheld the defendants’ objection to a substantial part of plaintiff’s pleading but proceeded to amend plaintiff’s claims. The Court of Appeal not only set aside the amendments but also dismissed the plaintiff’s claims in their entirety. Hence the plaintiff has appealed to this court.

The facts from which the appeal arose are rather interesting. By a writ of summons the plaintiff as the Alashe of Ojuwoye commenced an action in a Lagos High Court against the six defendants “for themselves and as representatives of Ojuwoye Community” claiming the following reliefs:

“(a) a declaration that the plaintiff as the Alashe of Ojuwoye is the head of Ojuwoye Community and that there can be no Ojuwoye Community without the Alashe of Ojuwoye:

(b) an order compelling the Defendants, their servants and/or agents to render to the plaintiff an account of all rents or moneys collected on behalf Ojuwoye Community; and/or agents from collecting any further rents or moneys in respect of any property belonging to Ojuwoye Community;

(d) A perpetual injunction restraining the Defendants, their servants and/or agents from collecting their occupation of the plaintiff’s Palace, No. 24 Ojuwoye, Mushin.” (Sic).

Sometime after pleadings had been filed the defendants under a “Notice For Further Directions” applied that paragraphs 2 to 56 of the statement of claim be struck out and the plaintiff’s claim be dismissed. The grounds for the application were stated to be as follows:

“GROUNDS OF APPLICATION

1. The defendants plead issue estoppel based on the decision of the High Court in Akinliyi & 5 Ors. v. Ladega and Chief Jimoh Aileru & Ors. v. Lasisi Salu Suits Nos. 1/291/58 and HK/l08/61 and confirmed by the Supreme Court in Suit SCI/l967: William Ladega (for himself and on behalf of the Alashe Family) – Akinliyi and 4 Ors. (for themselves and on behalf of the Ojuwoye Family).
2. The parties herein and/or their predecessors in title in Suit numbers 1/291/58 and KH/108/61 and SCI/1967 pleaded their traditional history and testified in support thereon.
3. The issue of ownership of all Ojuwoye land as raised and determined in favour of the Defendant applicants (pp.9-12 of Exhibit A confirmed in Exhibit B) that they are the owners of Ojuwoye land and that the descendants of Alashe are their customary tenants.
4. The headship of Ojuwoye Community was raised and determined in favour of the defendants/applicants therein that Alashe is not the head of Ojuwoye Community and that Bale of Ojuwoye is the head of Ojuwoye Community (p.12 of Exhibit A).

5.The learned trial Judge in suit Numbers 1/291/58 and HK/108/61 found also that:-

(i) the Alashe is a fetish priest whose appointment is subject to the consultation of the Elders of Ojuwoye Community (p.13 of Exhibit B).

(ii) The Bale of Ojuwoye is the head of Ojuwoye Community (p.12 of Exhibit A).

(iii)… the question of the ownership of all lands at Ojuwoye has been put in issue, and having regard to all the evidence I have accepted in this case, I have also come to the conclusion as a finding of fact that the ancestors of the plaintiff were the first settlers on the land now known and called Ojuwoye and I hold that the defendants’ ancestors were strangers and were customary tenants of the plaintiff’s family’ (P.12 of Exhibit A).

6. The plaintiff/respondent herein testified in 1/291/58 and HK/108/ 61 as 2nd D.W.
7. The claims raised in the indorsements on the Amended Writ of Summons and incorporated by reference in paragraph 56 of the Statement of Claim ought to have been raised in a counterclaim against the present applicants and/or predecessors in 1/291/58 and 136 HK/l08/61.
8. The present claim herein is an abuse of court process and tend to prejudice, embarrass and delay the fair trial of this action.
9. The parties in this action are the same individually and also in their representative capacities as in Suits Numbers 1/291/58 and HK/108/61 and SC 1/1967. (b) a consequential order that the plaintiff’s claim herein be dismissed as disclosing no cause of action; (c) such further directions as may seem fit in the circumstances. ”

Exhibited to the affidavit in support of the application were:-

(i) The judgment in Suit Nos. 1/291/58 and HK/108/61 (consolidated)