Albert Adeoye Vs Madam Ibidun Abibatu Jinadu (1975)

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The present appeal is from a ruling of Adefarasin, C.J. (High Court, Lagos) in respect of an application in the proceedings concerned. The plaintiff, now respondent before us, had instituted an action against the defendant, now appellant

“For a declaration that the alleged sale of the house and landed property forming part of No. 22 Moloney Bridge Street, Lagos, entered into between the plaintiff of the one part and the defendant of the other part is void ab initio on the grounds of (a) fraud; (b) illegality; (c) lack of consensus ad idem; (d) undue influence.”

There are some claims in the alternative but we do not consider them relevant to this decision. An order for pleadings was duly made and the plaintiff filed her statement of claim. The defendant did not file any statement of defence as ordered but instead moved the court by way of motion

“For an order dismissing the plaintiff’s claim herein on the grounds that

(i) It is frivolous, vexatious and an abuse of the process of the court;

(ii) The matter or matters in issue between the parties is or are res judicata;

(iii) No cause of action for rectification of the Registrar had accrued on the date of the commencement of the action;

(iv) Such further or other Orders as this Honourable Court may deem fit to make.

And further take notice that at the hearing of this application the defendant’s counsel will refer to the claim on the writ and the statement of claim filed in support thereof.”

There was an affidavit in support of this motion and the judgment of the Registrar of Titles referred to in the supporting affidavit was also attached. The learned Chief Justice heard arguments from counsel on both sides in support of the application to dismiss the plaintiff’s case in limine. It was common ground between the parties that there had been previous proceedings between the same parties in respect of the same property before the Registrar of Titles when the defendant, as applicant, applied to be registered as the proprietor of the freehold title to the said property and the plaintiff, as objector, objected to the registration of the defendant on the grounds that

“She did not sell her property, i.e. the same property to him; that she did not execute the conveyance of the property to the defendant; and that she only borrowed an amount of 100pounds (now N200) from the defendant as a friendly loan but has not repaid any part of it.”

The learned Registrar of Titles overruled the objection before him and declared the defendant the owner of the property by registering him as the proprietor of the freehold title.

It is not disputed before us that if the other ingredients of res judicata were present, the judgment of the learned Registrar of Titles in this matter (on the authority of the decision of this Court in Adebona v. Amao [1965] 1 All N.L.R. 370) would constitute estoppel by res judicata against either of the parties. The learned Chief Justice, in a ruling on the application, observed as follows:

“I do not consider the judgment subject matter of Exhibit A to have conclusively decided the issue of fraud and forgery which are raised in the present case. In fact the learned Deputy Registrar of Titles made it clear that he was not deciding these issues and there were no pleadings before his court whereby those issues were raised. In this respect I would distinguish the instant case from the Adebona case in which it was held that the plaintiff had an opportunity in the earlier proceedings before the Registrar of litigating the issue which he subsequently attempted to raise. I think it is only right to give the plaintiff an opportunity of being heard rather than to decide the issues on the plea of res judicata raised, as it is, by the affidavit of the defendant. If I am wrong in the views which I have already expressed. I would prefer, in any case, to deal with the plea of res judicata which the defendant has raised and the other issues which are dependent on it, at the trial of the substantive case when the defendant shall have filed his pleading. I would therefore order that the defendant herein do file a statement of defence within 30 days of this date. I have also decided that costs in respect of the application be in the cause.”