Alhaji Mukaila Olayinka Akinsaya V. Att-gen Of Federation And Minister Of Justice & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUMAI BAYANG AKAAHS, J.C.A (Delivering the Leading Judgment)

This appeal is against the judgment of Alabi CJ in consolidated Suits M/620/93 and LD/4611/95 delivered on the 26th June 2009.

The Appellant was claimant in Suit M/620/93 and the Respondents were the Defendants, while in Suit LD/4611/93 the Appellant was the Defendant and the Respondents were the Claimants. The suits were tried on M/620/93.

The claim relates to the property situate at No. 69, Balogun Street, Lagos which was formerly owned by Ebaco & Co (the Claimants in Suit No. LD/4611/95. The said property was the subject matter of a forfeiture order made by the Federal Government after which the Federal Government divested its interest to the appellant who registered it under title no LO2593. Mr. E. I. Ijewere (a shareholder of Ebaco & Co – one of the Respondents) instituted an action against the Federal Government at the Federal High Court in Suit No. FHC/L/94/79 challenging the forfeiture of the said property and succeeded against the Federal Government. Thereafter the Federal Government promulgated a Decree returning the property to Ebaco & Co. (the claimants in Suit No. LD/4611/95). Both parties made competing claims to the property.

The Suit was tried on the pleadings filed by the Appellant as plaintiff dated 19th March, 2003 (see pages 3-6 of the Record of Appeal) and the Amended Statement of Defence and Counter – Claim of the 3rd & 4th Respondents dated 25th February 2004 which was further amended with the leave of the Court on 14th October, 2008 (See pages 23 – 28 of the Record of Appeal).

During the trial, the appellant called two witnesses but did not testify himself. The 1st and 2nd Respondents did not participate in the trial and therefore did not call any witnesses on their part. The 3rd and 4th Respondents however called two witnesses; DW1 was the appellant who gave evidence for the 3rd and 4th Respondents under subpoena while DW2 was the 3rd Respondent. Thereafter the Court ordered the parties to file written addresses. The appellant as well as 3rd and 4th respondents complied with the directive.

In his judgment dated 26th June, 2009 the learned trial Chief Judge dismissed the Appellant’s claims and granted the 3rd and 4th Respondents’ counter – claim (See pages 219 – 239 of the Record).

Being dissatisfied with the said decision, the Appellant filed an appeal against the said judgment.

The Notice of Appeal dated 17th September, 2009 contained 5 grounds of appeal (See pages 240 – 246 of the Records) from which learned Senior Counsel formulated the following 5 issues for determination:

1. Whether the lower court was right in holding that the Claimant/ Appellant in Suit No. M/620/93 is estopped by the judgment in Suit No. FHC/L/94/79 at the Federal High Court from bringing the present action.
2. Whether the Appellant’s registration of his Title at the Lands Registry does not entitle the Appellant to the protection of subsequent purchaser for value from a registered owner as stipulated in S. 53(2) of the Registration of Title Law.
3. Whether the Federal Government had any title to pass on to Ebako and Company Limited having regard to the fact that at the time the Federal Government promulgated the Forfeiture of Assets (Release of Certain Forfeited Properties etc) Decree 1993 it had already divested itself of its title in the said property.
4. Whether there should be any dissimilarity in the judgment a Trial Judge read out in open court and the one signed by him.
5. Which of the two judgments dated the 26th of June 2009, delivered by the court is the judgment of court that is binding on the parties.

Learned Counsel for the 3rd and 4th Respondents distilled three issues for determination. They are: –

1. Whether the learned trial Judge was right to hold that the Appellant was bound by the judgment of the Federal High Court in Suit No. FHC/L/94/79 and was thereby estoppel from litigating the cause or matter in Suit No. M/620/93 herein.
2. Whether from the facts established before the trial court, the Appellant was able to prove a valid and/or better title to the property at 69 Balogun Street, Lagos, than that of the 4th Respondent thereto.

3 The question as to what constitutes the legally recognised judgment of the trial court in the Suit therein.

The main thrust of this appeal is incapsulated in Issue 1 of the Appellant’s as well as 3rd and 4th Respondents’ briefs. Learned Senior Counsel for the appellant argued that for the invocation of the principles of Res Judicata and issue estoppels to bar the appellant from litigating the case to apply, it must be shown that the appellant is a privy of the Federal Government of Nigeria. He cited the case of Coker & Anor v. Sanyaolu (1976) NSCC 566 at 575 where Idigbe JSC set out three classes of Privies for the applicability of the doctrine of res judicata or estoppels which are:

(a) Privies in blood (as ancestor and heir)

(b) Privies in law (as testator and executor, intestate and Administrator); and