Chief Adegoke Ojagbamila & Ors. V. Chief Lejuwa & Ors. (2004)
LawGlobal-Hub Lead Judgment Report
MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, J.C.A.
This is an appeal against the ruling delivered by Obaremo, J, of the Ondo State High Court of Justice holden at Okitipupa on 8th day of August, 1997 based on the motion which prayed for the following reliefs:-
“(i) An order that the defendants/respondents shall not relitigate the ownership of the land in dispute on the grounds of estoppel by conduct (in pais) acquiescence and the principle of standing by;
(ii) An order that the defendants/respondents either by themselves, servants, agents etc or any other person claiming through them shall not enter the land in dispute to farm, to plant any crops to take first product or to do any act on the land without the written permission of the plaintiffs/applicants,”
In reply, learned counsel for the defendants/respondents submitted that the application is frivolous and vexatious and inappropriate, because before this application is brought to court, the applicant did not show that they are in exclusive possession of the subject matter. Again they did not show that there is a final judgment indicating that the plaintiff is entitled to exclusive possession.
Not only that, the defendants/respondents further contended the plaintiff cannot succeed because the identity of subject matter is not certain and no plan was shown before the court. That there is nothing to indicate that the defendant stool also of and not claiming its tight and that there is evidence that they are in exclusive possession of the land, He then urged that court to dismiss the application relying on the same case cited by the plaintiff, i,e, Bishop Joseph Alexander Synax v. Rt, Rev, S. I. Kale & 2 Ors, (1969) 1 All NLR 256 (1969) NMLR at page 159, In a considered ruling the learned trial Judge found for the plaintiff/applicant and granted all the reliefs sought, in the following terms:-
“As I have stated earlier, there was no counter-affidavit by the respondents, If there were, I should have had the opportunity of reconciling the conflicts, This failure of the counsel to traverse the issues raised in the averments of the applicants is fatal to their case, In law, this failure is tantamount to admission, Now, the respondent (sic) has not filed a counter-affidavit nor in any way controverted the allegations of facts contained in the applicant affidavit. I must act on them as if they are true. If I do, then it appears to me that justice demands that I should grant the order sought by Chief Kaye.
Consequently, the application of the applicant shall and hereby is (sic) sustained. It is hereby ordered that the defendant/respondent shall not re-litigate the ownership of the land in dispute on the grounds of estoppel by conduct and the defendants/respondents servants, agents etc shall not enter the land in dispute to farm, to plant any crops etc without the written permission of the plaintiff/applicant, with no order as to costs.”
See pages 65 – 66 of the records of proceedings.
Aggrieved by the above ruling, the defendants/respondents appealed to this court and filed a notice of appeal containing all in all eleven grounds of appeal shorn of their particulars are as follows:-
“1. That the trial Judge erred in law when he held that the failure of the defendants/respondents to file counter-affidavit to the plaintiffs/applicants motion amounted to admission of the facts deposed to in the affidavit in support of the motion whereas the defendants/respondents raised objection on point of law.
2. That the application brought by the plaintiff/applicants under Order 24 of the Ondo State High Court (Civil Procedure) Edict, 1987 upon which the decision of the trial Judge was based is irregular and incompetent as the said Order 24 deals with proceedings in lieu of demurrer which does not deal with the issues and reliefs sought by the plaintiffs/applicants:
3. That the decision of the learned trial Judge is against the affidavit evidence and arguments adduced before him.
4. The learned trial Judge erred in law when he held as follows:
‘Consequently, the application of the applicant shall and hereby is sustained. It is hereby ordered that the defendant/respondent shall not re-litigate the ownership of the land in dispute on the grounds of estoppel by conduct…’
5. The learned trial Judge erred in law in granting the application as sought in the plaintiffs/applicants motion of 11th September, 1995 thereby allowing the plaintiffs/applicants to rely solely and entirely on estoppel by conduct to found a cause of action for title to land against the defendants/respondents.
6. The learned trial Judge erred in law in upholding the reliefs sought by the plaintiffs/applicants by way of motion when this amounted in effect to granting the declaratory and injunctive reliefs sought by the plaintiffs/applicants in their writ of summons and statement of claim, thereby short-circuiting a trial which ought to be appropriate in the circumstances, and this occasioned a miscarriage of justice.
7. The learned trial Judge erred in law when he held as follows:
“As the objection taken in the instant case could, if uphold, (sic) disposes (sic) of the whole action. (sic) I am of the opinion that it comes within the ambit of Order 24 of Ondo State High Court (Civil Procedure) Rules, 1987.”
8. The learned trial Judge erred in law when he held as follows:
‘It will not be right as contented (sic) by the learned counsel that there is no survey plan demarcating the area in dispute. By paragraph 18 of the supporting affidavit, its (sic) applicant says that the survey plan used 1958 and 1963 is exhibit ‘F’. I agree with the applicant survey plan contrary to the contention of the respondent in exhibited and is marked exhibit ‘F’ which is the subject matter.’
9. The learned trial Judge erred in law in holding that the failure of the defendants/respondents to ‘traverse the issues raised in the averments of the applicants’ is fatal to their case.
10. The learned trial Judge erred in law in failing to evaluate or properly evaluate the affidavit evidence before him and to satisfy himself that the depositions support and are sufficient to warrant the grant of the orders sought by the plaintiffs/applicants in the motion dated 11th September, 1995.
11. The learned trial Judge erred in law in failing to deliver his ruling within 3 months of the conclusion counsel’s submissions contrary to section 258(1) of the Constitution of the Federal Republic of Nigeria, 1979, and this occasioned a grave miscarriage of justice.”
The appellants through their counsel I. C. Eke, Esq. submitted seven (7) issues for the consideration of this appeal thus:
“(i) Whether the learned trial Judge was correct in his order that the appellants shall not re-litigate the ownership of the land in dispute on grounds of estoppel by conduct?.
(ii) Whether the learned trial Judge was right to have permitted the respondents to rely solely and entirely on estoppel by conduct to found a cause of action for title to land?.
(iii) Whether it was proper for the learned trial Judge to have upheld the reliefs sought by the respondents by way of motion when this amounted in effect to granting the declaratory and injunctive reliefs sought by the respondents in the writ of summons and statement of claim without a trial on the merits?.
(iv) Whether the learned trial Judge was right to have considered the application under Order 24 of the Ondo State High Court (Civil Procedure) Rules?.
(v) Whether the learned trial Judge was correct in the decision that exhibit ‘F’ to the respondent’s affidavit represented the subject matter of the suit between the parties?.
(vi) Whether the mere fact that the appellants did not file counter-affidavit was sufficient to warrant a grant of the respondent’s application?.
(vii) Whether the ruling of the learned trial Judge is not vitiated by his failure to deliver same within 3 months of the conclusion of arguments as required by section 258(1) of the Constitution of the Federal Republic of Nigeria, 1979?.”
While the respondents in term also distilled manageably, (4) four issues for the determination of this appeal as follows:
“1. Whether in the circumstances of this case, the non-delivery of the judgment of the learned trial Judge, 18 (eighteen) days after the statutory 90 (ninety) days provided by section 258 of the Federal Republic of Nigeria, 1979 resulted into such a miscarriage of justice as to render the said judgment void?.
2. Whether the learned trial Judge is procedurally correct when he granted the reliefs of the plaintiff/applicant/respondent on the application filed before him without taking evidence viva voce from the parties and whether if he is wrong a miscarriage of justice occurred therefrom?. (Grounds 2, 6 and 7).
3. If the answer to 2 above is affirmative, whether a proper evaluation of the pleadings and affidavit evidence before the court justified the finding of facts made in the decision reached by the court to grant the reliefs sought by the plaintiff/applicant/responden?t. (Grounds 1, 3, 8, 9 and 10).
4. Whether in the face of the agreement between both parties and the uncontroverted affidavit evidence before him, the learned trial Judge was justified to hold that the appellant are estopped from resisting the title of the respondents to the land in dispute?.” (Grounds 4 and 5).
The main grouse of the appellant under issue 1 in this appeal is how and the manner the trial court ordered that the appellants, shall not re-litigate the ownership of the land in dispute on the grounds of estoppel by conduct while there was no evidence to show that the appellants formerly had any litigation on the subject-matter.
It could be possible, as stated by the respondents, that same matters were undertaken against some other persons in respect of the land in dispute but there is no evidence to show that the appellant herein were parties to the suits or they are privies or even if the appellants were aware of those suits.
None of the conditions of estoppel was present in this matter. How can that court order the appellants ‘not to re-litigate’ the ownership of the land. On what basis could that court make its orders? One cannot find in existence any averments to that effect. It is made purely on the basis of guesswork, and not on the basis of the facts placed before it.
Learned counsel then submitted that it is trite law that a court of law is not given speculation or conjecture, but must act, if at all, on the basis of facts placed before it. He cites in support the following authorities:-
(a) N.B.C Plc. v. Okwejiminor (1998) 8 NWLR (Pt. 561) 295/309 paragraph H and
(b) Oyadeji v. Adenle (1993) 9 NWLR (Pt. 316) page 224.
It was stated elsewhere that a trial court should not speculate or make guesses of things that are not disclosed, or things that are kept in the dark during trial. See Balogun v. Amubikanhan (1985) 3 NWLR (Pt.11) 27.
There is no evidence before the lower court that ownership of the land in question had previously been thrashed out and litigated by the parties or their representatives in interest how can one suggest that the appellant should be prevented from re-litigating the matter on the ground of principle of estoppel per rem judicatam. The learned Judge must make sure that the conditions enumerated before a plea of estoppel per rem judicatam can apply are proved.
It was decided in so many authorities that before a plea of estoppel per rem judicatam succeeds the defendant must prove:
(1) the same question must be for decision in both proceedings;
(2) the decision relied upon to support the plea must be final;
(3) the parties must be the same.
I refer to the following decided cases:-
(i) Akinkunmi v. Sadiq (1997) 8 NWLR (Pt. 516) 277 at 289 paragraph G.
(ii) Oyebamiji v. State Civil Service Commission Oyo State (1997) 5 NWLR (Pt. 503) 113/118 F – G.
It is clear that estoppel or plea of estoppel was designed to prevent the parties from going against their previous stand while res judicata serves a different purpose, namely, it works on the court to strip it from its jurisdiction. The Supreme Court held that… ‘res judicata prohibits the court from enquiring into a matter already adjudicated upon. It ousts the jurisdiction of the court’. See on this the following: Yoye v. Olubode & 2 Ors. (1974) NSCC Vol. 9 page 4414; Bassil v. Honger (1954) 14 WACA 569, 572 and Odadhe v. Okujeni (1973) 11 SC 343 at 353.
The crucial issue after reading both briefs, is that whether the settlement/agreement reached by the parties and their communities in 1919 could be regarded as decision of a court to serve as a basis for estoppel by conduct. In a nutshell, can we with all sense of responsibility, say that native gathering of elders was a native court? I do not share the belief that both parties then are the same as now before the lower court. Can we say with certainty, that the decision of that so-called ‘native court’ is final? I have reviewed the stance taken by each of the parties and their submissions and I hold that the issue of estoppel by conduct and or plea of res judicata are not available to the plaintiffs/respondents. The learned trial Judge with respect, erred in law to have ordered the appellants not to re-litigate the ownership of the land in dispute on the ground of estoppel by conduct.
The reason for so holding is not difficult to see. (i) Firstly there is no evidence of a previous litigation by any of the parties, their privies, or representatives in respect of the same land. The settlement of elders starting from 1917 and culminated in 1919 could not possibly be described as a decision of the court under both 1979 and 1999 Constitutions.
Assuming without conceding that the settlement and or agreement reached by the parties therein cannot be a valid and proper decision as a result of proper proceedings or trial in a court established by law and Constitution.
The trial court should not have closed its eyes and allowed itself to be guided by tissues of technicalities. For example, can anyone state with some degree of certainty that the land in dispute in the present case is the same as that shown in exhibit ‘F’.
The respondents application lacked merit ab initio it should have been struck out by the lower court to pave way for proper trial of the case in its own merit.
I do not wish to delve deeply into whether the ruling dished out by the learned trial Judge was vitiated by his failure to deliver same within 3 months of the conclusion of arguments and addresses under section 258(1) of the 1979 Constitution. This is because the much talk about lapsing of judgments and rulings under the law is being effectively watered down. It is no longer the law that delivering judgments or rulings outside the three months statutory period could amount to a nullity.Going by section 258(4) of the 1979 Constitution, one must prove that by such delay a miscarriage of justice has been occasioned to him.
It is up to the appellate court to decide for itself whether in fact such miscarriage of justice had been occasioned. See: Rossek v. ACB Ltd. (1993) 8 NWLR (Pt.312) 382 at 465 paragraphs A – H; and Onagoruwa v. State (1993) 7 NWLR (pt. 303) 49. See also Okonkwo v. Udoh (1997) 9 NWLR (Pt. 519) 16/20 – 21 paragraphs H-A.
I do not entirely agree with the learned counsel for the appellant that because the ruling was delivered outside the 90 days the ruling should be declared null and void. Other matters exist to sustain the ruling especially when the appellant could not prove to this court that such ruling occasioned a miscarriage of justice.
That being the case, I hold that despite the provisions of section 258 the ruling in this particular case is intact.
It is not always right for this court to interfere with the decisions of the lower court unless and until the decision is perverse. In this case, we are inclined to so interfere as learned Judge was wrong in applying the plea of res judicatam to order the appellant not to re-litigate the ownership of the land in dispute. It could have been a different consideration if it is a matter of estoppel by agreement or estoppel by contract. That is to prohibit parties from going back on their settled agreement. This type of agreement will prevent a party from resiling from an agreement or reverting to a position once held by a party who had on his promise of leaving that position made the other party to shift from his own position.
Because the learned trial Judge failed to consider the claim before him on its own merit and because there is no previous trial in a court of law between the same parties this court holds that, that court acted wrongly in granting the motion based on the plea of res judicatam. The ruling delivered on 8/8/97 cannot stand. Appeal therefore succeeds same is hereby allowed. The decision of the lower court is set aside. The motion filed on 15/9/93 by the applicants is hereby struck out. The matter is reverted back to the Chief Judge of Ondo State for healing de novo before another Judge of the High Court Okitipupa Division before another Judge. The appellant is entitled to some costs which I assessed at four thousand Naira (N4,000.00) in favour of the appellant.
Other Citations: (2004)LCN/1598(CA)