Alhaji Raimi Oloriegbe Vs J.a. Omotosho (1993)

LawGlobal-Hub Lead Judgment Report

OMO, J.S.C. 

This is an appeal by the plaintiff/appellant against the decision of the Court of Appeal (Kaduna Division) which allowed the defendant/respondent’s appeal against the ruling of the Kwara High Court in the plaintiff/appellant’s favour.

The plaintiff/appellant instituted an action (KWS/7O/l983) in which it claimed against the defendant/respondent.

“(i) an order of possession wherein the defendant is to vacate the plaintiff’s adjudged land and to remove his structure thereon, and

(ii) (for) an order of account to be taken and payment of the sum due in respect of the structure on the plaintiff’s adjudged land”.

After pleadings had been filed and exchanged, the defendant/respondent filed an application in the trial High Court for an order to dismiss the plaintiff/appellant’s action on the grounds: (a) that it is caught by the doctrine of res judicata, to wit; that the issue(s) sought to be decided had been canvassed and decided upon in a previous action between the parties; and (b) that the action is an abuse of the process of the court. The High Court dismissed this application holding that, although the claim for title and possession had been previously litigated, the court was not barred by the doctrine of res judicata from hearing the present claim because “the question of rendering an account is a completely new issue which has not been judicially decided upon”.

It relied on the decisions in Okusanya and Ors v. Akanwo and Ors (1941) W.A.C.A.1 and Bakare Ibiyemi & 3 Ors v. Lawani Olusoji and anor 1957 W.N.L.R. 25. Defendant/respondent’s second contention that the action is an abuse of process was not considered. The decision was however reversed by the Court of Appeal which held that the plaintiff/appellant’s action is caught by the plea of res judicata and the High Court therefore lacked jurisdiction to entertain the matter. In the process of coming to this decision, the Court of Appeal found that the defendant/respondent is a trespasser on the land in dispute. Dissatisfied with this ruling both parties have appealed against same to this court: the appellant against the decision of res judicata and the respondent solely against the finding that he is a trespasser.

The dispute between the parties over the piece of land situate at No. 1, Amilegbe Close, Ilorin, has had a chequered history dating back to the year 1976 when the plaintiff/appellant took his first action (case No. IAC/2/1/CU.672176) in the Ilorin Area Court Grade II No. 1, against the defendant/respondent. It is necessary to revisit the tortured career of this dispute in order to be able to understand clearly the reason/basis for the application to dismiss the present action in the High Court filed by the defendant/respondent, and to be able to arrive at a correct decision in this appeal.

The aforementioned application to dismiss is supported by an affidavit to which is annexed six court proceedings (Annexure A to F). Together they cover pages 15 to 101A of Volume I of the record or proceedings. Only the salient and relevant facts set out in these 87 pages will be summarised and adverted to herein. The plaintiff/appellant (who for the purpose of this summary will be referred to hereafter as plaintiff only) filed the original (first) action in 1976 against the defendant/respondent (called defendant only hereinafter in this summary) claiming “my land sold to me on which the defendant is building his house on the land now”. Both claimed to have purchased from Balogun Fulani and received “written document with their measurements” (my note: of the pieces of land sold to them) from the same person – one Abdulkadir Ishola – who said he used to distribute lands sold to its owners on behalf of the Balogun Fulani. The court after hearing his evidence-in-chief, proceeded to the land in dispute which it inspected in the presence of the parties, all their witness, and a surveyor. At the locus in quo, measurements were made: after which the witness Ishola (who testified as P.W.1) was asked whether from his observation on the land he could say that the portion of land all which the defendant was building belonged to him. He answered that it belonged to the plaintiff. In its judgment the court stated. inter alia. thus:

“Having heard the evidence of plaintiff and all their witnesses, The Court sees that the plaintiff and all his witnesses proved their case beyond reasonable doubt to convince this court that the land belongs to the plaintiff, the court therefore declares the land in dispute to the plaintiff because of the following reasons………..”

It proceeded thereafter to set out eight (a-h) reasons for so deciding. The record shows that it ended its judgment thus:- “Judgment:-The land in dispute declear (sic) to the plaintiff as the rightful owner.

Court Order:- The Court hereby order the defendant to demolish his building and to remove all his properties on the land within 30 days.

Right of Appeal:- Any aggrieved party may appeal to Upper Area Court within 30 days (vide pages 49 to 52 of the record of proceedings – (Vol. 1).

The defendant exercised his right of appeal to the Upper Area Court, Ilorin, Which affirmed the declaration of title in favour of the plaintiff but quashed the order for demolition of all the properties of the defendant on the land because that order is, “outside” the plaintiffs action. (vide page 63 of record of proceedings – Volume 1).