Bishop Joseph Alexander Synanx V. The Right Rev. S. I. Kale-bishop Of Lagos, Rev F.o. Segun- Synodsecretary,chief A.o. Lawanson- Chancellor (1969) LLJR-SC

Bishop Joseph Alexander Synanx (Suing By His Attorney Rev.j.w. Brooks) V. The Right Rev. S. I. Kale-bishop Of Lagos, Rev F.o. Segun- Synodsecretary,chief A.o. Lawanson- Chancellor(As Trustees Of The Anglican Diocese Of Lagos) (1969)

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In the Lagos High Court, the plaintiff/appellant took out a writ of summons (Suit No. LD/101/66) against the defendants/ respondents claiming a “declaration of title in fee simple to and possession of the parcel of land situate lying and being at Oweh Street, Yaba.”

Pleadings were ordered and duly delivered. The principal averments in the statement of claim are contained in paragraphs 3 to 8 as follows:-

PAGE| 2 “3. By an indenture dated the 8th day of March, 1911 and made between Sanni Ogunlana of the one part and Lawani Giwa of the other part and registered as No. 59 at page 188 in Volume 72 in the Land Registry Lagos the hereditaments therein described were conveyed to the said Lawani Giwa in fee simple free from all incumberances.

4. The said sale was confirmed by a consent judgment of the Supreme Court of Nigeria dated 18th day of January, 1915.

5. The said Lawani Giwa died leaving him surviving 4 (four) children.

6. The plaintiff by an indenture dated the 3rd day of September, 1963 and registered as No. 63 at page 63 in volume 1213 of the Lands Registry Lagos became owner in fee simple of a piece or parcel of land measuring more or less 100ft x 100ft at Oweh Street, Igbobi Lagos as per plan filed with this statement of claim. The said conveyance was made by one Lawal Giwa now deceased.

7. On the said 3rd day of September, 1963, the three remaining chil-dren of the late Lawani Giwa joined in the conveyance by their brother Clement Lawal Giwa mentioned in paragraph 6 of the statement of claim to the said plaintiff. The said conveyance is registered as No. 62, at page 62 in Volume 1213 of the Lands Registry Lagos.

8. The said children by conveyances mentioned in paragraphs 6 & 7 of the statement of claim conveyed part of the said land to the plaintiff.” In answer thereto, the defendants in paragraphs 4, 5 and 6 of their amended statements of defence stated as follows:-  “4. With reference to paragraph 3 of the statement of claim the defend-ants will contend that although Sanni Ogunlana executed a deed of con-veyance dated the 3rd day of March, 1911 and registered as No. 59 at page 188 in Volume 72 in the Land Registry, Lagos in favour of the said Lawani Giwa, it was a void deed and was ineffective to convey any title to the said land to Lawani Giwa or anybody. 5. The defendants will contend that the said deed of conveyance had been pronounced void in the cases of:- 1. Chief Secretary to the Government Versus Equagoo & 8 others Suit No. 414/52 and in FSC. 67/1956

PAGE| 3 2. Ayodeji Oludipe vs. Beyioku & Another Suit No. 222/54 and FSC. 65/1956 and further contend that the said decisions create against the vendors to the plaintiff an estoppel per res judicata and consequently against the plaintiff himself. In support of this contention the defendants will rely on the proceedings and judgments in the said suits. 6. The defendants aver that Clement Alabi Lawal Giwa deceased, Alimotu Lawani Giwa, Salu Lawani Giwa and Sikiratu Lawani Giwa, were the children of the late Lawani Giwa, and they knew of the cases mentioned in paragraph 5 above and that some of them gave evidence in the said cases and that they are bound by the said judgments”.

By way of reply, the plaintiff joined issue with the defendants on their defence and pleaded, inter alia, as follows:- ‘The plaintiff will rely on the judgments in the following suits at the trial viz:- (a) Suit No. 105/1928 Sam Abijo v. Lawani Sogunro & anor. (b) Suit No. 28/48 David Okutade v. Dorcas Idowu. (c) Suit Nos. 296/47, 297/47, 300/47 and 27/48. (d) Suit No. x IK/115/63 Adamo Akinwunmi v. Oludipe.  (e) Suit No. WACA 75/1953.” After the plaintiff had given evidence at the trial some documents were admitted in evidence by consent and the plea of res judicata raised in the pleadings was considered in limine.

For a better understanding of the case, it is worthwhile to set out, in some detail, the facts before the court at that stage of the trial. The plaintiff’s root of title is a deed of conveyance (exhibit ‘K4’) dated the 8th of March, 1911, whereby Sanni Ogunlana, the eldest son of the late Aboki Bada, conveyed to Lawani Giwa two parcels of land portion of which is the land now in dispute.

After the death of Lawani Giwa, the eldest son sold and conveyed the land in dispute to the plaintiff by virtue of a deed of conveyance (exhibit ‘B’) dated the 3rd of September, 1963, and the sale was duly ratified by the other children of the late Lawani Giwa by a deed (exhibit ‘C’) bearing the same date and in which exhibit B was recited.

The plaintiff rested his case on these conveyances and on long possession by his predecessors in title.  The defendant’s case is that the land in dispute originally belonged to the Ojoma Eyisha family which sold and conveyed it to Emmanuel Abiona Akinsoji by virtue of a deed of conveyance dated the 7th of February, 1958, and it would appear that the defendants claim to have bought the land from Akinsoji by virtue of a deed of conveyance dated the 27th of August, 1958.

The defendants grounded their plea of res judicata on the following documents:- (1) Record of proceedings (exhibit ‘G’) in a Public Lands Acquisition case (Suit No. 414/1952) in which six of the claimants derived their title from the children of the late Lawani Giwa and their respective claims were in conflict with that of the Ojomo Eyisha family which claimed as original owners of the land. Judgment was entered in favour of the Ojomo Eyisha family. (2) Record of proceedings (exhibit ‘J’) in Suit No. 222/1954 in which the plaintiff who was claiming a declaration of title in fee simple to a piece of land at Magbon Street, Ikorodu Road, and recovery of possession, traced his title to the 1911 conveyance (exhibit ‘K’) and the defend-ant who bought the land from the Ojomo Eyisha family in 1953 relied on the title of the family as the original owners of the land.

The plaintiff’s claim was dismissed and he unsuccessfully appealed to the Federal Supreme Court (See exhibit ‘H’). (3) Notes of the evidence of A. L. Giwa (one of the children of the late Lawani Giwa) who testified for the plaintiff in Suit No. 222/1954. In a reserved ruling given on the 28th of October, 1966, the learned trial judge upheld the plea of res judicata and in doing so he stated as follows: “The plaintiff in this case, by virtue of exhibits `B’ and `C’, based his claim on the fact that Aboki Bada was the owner of the land. The defendants tendered 7 deeds of conveyance exhibits ‘F’-‘F6’ and record of appeal of the old Supreme Court of Lagos suit 414/52, judgment of the Federal Supreme Court Appeal No. 65/56 and proceedings in Suit No. 222/54. The plaintiff on the other hand also tendered a series of documents exhibits ‘K’-‘K4’ and a deed of conveyance. The series of documents tendered, except one, tend to show that Lawani Giwa was never the owner of the piece of land shown in the deed of conveyance of 1911. The only judgment which seems to be in favour of the defend-ants seems to be that in exhibit `K’ in which Tew J. held that Lawani Giwa had paid the £10 and therefore became equitable owner of the piece of land, part of which forms the Area Of Law of this case. PAGE| 5 If the Plaintiff had not given evidence in this case and had not alleged that the land in dispute is the same as that being claimed by the defendants and secondly that he was relying on exhibits ‘B’ and ‘C’ as his root of title, perhaps different consideration would have applied. In the judgment of Jibowu Ag. F.CJ. as he then was, in Appeal FSC 65/56, there is no doubt that in his description of that land when the case went on appeal it was alleged to be in Magbon Street, Ikorodu Road, near Igbobi, whereas the land in dispute in this case is said to be at Oweh Street, off Ikorodu Road near Igbobi, but as was indicated in paragraph 3 of the Federal Supreme Court, judgment, the root of title of the plaintiff depended on a conveyance traced back to 1911 between Sanni Ogunlana and Lawani Giwa. If the Supreme Court had not decided in 1956 that the property did not belong to Aboki Bada and therefore he could not sell to Sanni Ogunlana, then of course, the plaintiff has no good root of .title. I refer to this portion of the judgment of the Supreme Court:- ‘He hopelessly failed to prove a good title to the land in dispute through the conveyance to Lawani Giwa in 1911 and he made a fatal effort to prove that he had acquired the title of the land in dispute on long possession. This appeal is therefore doomed to fail and I will dismiss it with costs.’ In fairness to the Justices of Appeal, their attention was not drawn to the decision of Tew J. which I referred to. But even if it was, they are not bound by a decision of a lower court.

The most recent and subsisting judgment therefore is that of the Federal Supreme Court of 1956 which have (sic) been referred to. Until that judgment is set aside, the plea of res judicata would be sustained in view of the fact that the portion of the land in that dispute and the root of which either parties are claiming by virtue of their pleadings and documents tendered in this case are the same.” This is an appeal against that ruling on the ground that the learned judge erred in holding that the matter was res judicata when some of the ingredients for so holding were absent. The short point raised before us on appeal by learned counsel for the plaintiff is that the learned trial judge wrongly relied on the proceedings and judgment in Suits Nos. 414/52 and 222/54 when it is clear that the parties to the present action were neither parties nor privies to the parties in the previous actions and when it is clear that the subject-matter of the cases was not the same. In reply, learned counsel for the defendants submitted that the subject-matter was the same in as much as the parcels of land in dispute in Suits Nos. 414/52 and 222/54 form portions of the land covered by the 1911 conveyance and the land in dispute in the present case is also a portion of the land covered by that conveyance. Counsel further submitted that in order to sustain a plea of res judicata the court must be satisfied that the parties in the previous and the instant actions are the same. It is his submission that the word “parties” has a wide definition and includes persons who though not named as parties on the writ stood by whilst the previous litigation was fought for them or on their behalf. In particular learned counsel for the defendants referred to the fact that one A. L. Giwa, a child of Lawani Giwa, testified for the plaintiff in Suit No. 222/54 where the plaintiff pitched the title of Lawani Giwa against that of the Ojomo Eyisha family and his claim was dismissed. PAGE| 6 We are in some doubt as to whether or not the parties clearly understood the issues posed by the circumstances of this case. We observe that the only point in the appeal is as to the application of the plea of estoppel. As a legal concept estoppel is very well known but it is trite that some difficulty exists in differentiating the rules applicable to the various species in which that conception manifests itself. In particular, great care must be taken to differentiate between estoppel by res judicata and estoppel by conduct.

When, for purposes of convenience, it is said that res judicata applies to a certain combination of facts it should be borne in mind that what has really operated is estoppel by res judicata and a party is said to be estopped from re-litigating the matter in hand by the fact that the same matter had already been the subject of a final judicial pronouncement between the two parties. In the present appeal our attention was drawn by learned counsel for the defend-ants to the case of Marbell v. Akwei (1952) 14 W. A.C.A. 143.

The decision of the West African Court of Appeal in that case should be carefully studied. We are not in any doubt that the principles enunciated therein clearly relate to cases of estoppel by conduct for it is only in such a case that a party being blamed for standing by while another fought his battle could have asked to be made a substantive party. Where, however, such is not the case a previous judgment can only be used in limited circumstances allowed by law. (See the observations of the Federal Supreme Court in Alade v. Aborishade (1960) 5 F.S.C. 167 at 173.) In the present case the learned trial judge had dismissed the plaintiff’s case on the ground that the plaintiff was estopped from bringing the action per rem judicatam.

For this plea to succeed and, as rightly indicated by learned counsel for the defendants, there must be at least identity of parties (or privies) and identity of subject-matter, those who merely stood by during the earlier litigation when they should not have done so may be estopped from re-litigating the same subject-matter by conduct but certainly not by res judicata.

Previous judgments are very often usefully pleaded and employed in the conduct of subsequent litigation but the use of them must be confined to areas where the law allows them to be used. We have not, in view of the conclusions at which we have arrived on this point, considered the issue whether or not the subject-matter of the present action is the same as that of any of the previous actions.

Identity in this respect must coexist with the other factor. We do not doubt that the judge erred in holding on the evidence before him that the plaintiff was estopped per rem judicatam by the judgment to which he referred. The appeal therefore succeeds and it is hereby allowed. The order of the Lagos High Court made in Suit No. LD 101/66, including the order for costs, is hereby set aside. It is ordered that the case be remitted to the Lagos High Court for hearing de novo before another judge. The appellant is en-titled to his costs of this appeal which we fix at 114 guineas.

Other Citation: (1969) LCN/1674(SC)

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