Chief Salami Adesina & Anor V. The Commissioner Ifon-ilobu Boundary Commission, Osogbo & Anor (1996)

LAWGLOBAL HUB Lead Judgment Report

ADIO, J.S.C.

On the application of the applicant/ appellant. Chief Salami Adesina (on behalf of the Ilobu Community). The High Court of Oyo State, Oshogbo Judicial Division granted an order of prohibition directed against the Commissioner for Boundaries Settlement (hereinafter referred to as the 1st respondent) before whom a boundary dispute between Ilobu and Ifon communities (appellant and 2nd respondent respectively) was pending.

The order restrained the 1st respondent from entertaining the aforesaid boundary dispute on the ground that his jurisdiction had been ousted by the judgments in Suits Nos. HOY/20/70 and FCA/1/19/68 between the same parties and on the same subject matter. Copies of the relevant papers were served on the 2nd respondent as party affected or interested in the matter.

The defunct Government of the Western State of Nigeria had. under the Local Government and Community Boundaries Settlement Law. Cap. (69) of the Laws or Western Nigeria 1959 referred the aforesaid dispute to the 1st respondent. About the same time the 2nd respondent instituted an action in the High Court against the appellant. It was Suit Nos. HOY/20/70 and it was in relation to a parcel of land along an area within the land involved in the aforesaid boundary dispute before the 1st respondent.

The claim in the action instituted in the High Court was for a declaration of title to the land in question edged pink on plan No. LL 3412 dated 14th August, 1/63 and for an injunction restraining the defendants, their servants and agents from entering or using the land in dispute in the suit without the authority or consent of the plaintiff. The 2nd respondent filed an application before the 1st respondent challenging his jurisdiction to entertain the boundary dispute. The 1st respondent ruled that he had jurisdiction and there was no appeal against the ruling.

The survey plan to be used in the proceedings in the boundary dispute before the 1st respondent was drawn and hearing of the dispute was about to commence when the appellant filed an application in the High Court for an order of prohibition restraining the 1st respondent from commencing the hearing in the proceedings in the boundary dispute in view of the judgment of the High Court, dismissing the 2nd respondent’s claim in suit No. HOY/20/70 for a declaration of title to the land in question in that case and for an injunction. and of the dismissal by the Court of Appeal of the appeal lodged against the judgment of the High Court. The application for the order of prohibition was granted.

Dissatisfied with the ruling of the High Court, the 1st respondent lodged an appeal to the Court of Appeal. The court below allowed the appeal and set aside the ruling of the High Court granting an order of prohibition against the 1st respondent. Dissatisfied with the judgment of the court below, the appellant lodged an appeal to this court.

The appellant and the 2nd respondent duly filed and exchanged briefs. The appellant filed the appellant’s brief and the 2nd respondent filed the 2nd respondent’s brief. Certain preliminary objections were raised in the respondent’s brief to the grounds of appeal because according to the 2nd respondent, two of them were incompetent as leave which was necessary was not obtained before they were filed. Another complaint was that one of the three grounds of appeal should be presumed to have been abandoned as it was not argued at all in the appellant’s brief.

It was pointed out that though three grounds of appeal were filed only one issue was formulated. Finally, there was complaint that instead of basing argument on even the only one issue formulated in the appellant’s brief, the appeal was argued on the basis of the grounds of appeal. No doubt the brief filed for the appellant was very clumsy and was not in the proper form. I agree that after selling out the only issue formulated in relation to the appeal. the learned counsel for the appellant in the brief of the appellant, based the argument on the grounds of appeal.

However, the preliminary objections were not argued at the hearing of this appeal. One really should ordinarily not completely ignore a brief filed for a party. In the interest of justice and in order not to unduly rely on technicality, one would make the best that one can in relation to the brief of the appellant. See Obiora v. Osele (1989) 1 NWLR (Pt.97) 279. Two issues were formulated in the 2nd respondent’s brief but they raised similar questions. In my view. the only main and fundamental issue raised in the appellant’s brief is sufficient for the determination of this appeal. The aforesaid main issue, as slightly amended, is as follows:-

Whether the 1st respondent was estopped from proceeding with the determination of the boundary between Ifon and Ilobu communities referred to him by the appropriate authority under the Local Government and Community Boundaries Settlement Law. Cap. 69 of the Laws of Western Nigeria, 1959.

The question raised under the said main and/or fundamental issue is based on the contention, by the appellant, that the boundary between the Ilobu community and the Ifon community had been determined in the civil action, Suit No. HOY/20/70. by the High Court. The claim of the 2nd respondent for inter alia a declaration of title to the parcel of land edged pink in plan. No. LL 3412, which was within an area involved in the boundary dispute, was dismissed by the High Court and the appeal lodged against the judgment to the Court of Appeal was also dismissed. The appellant relied on the legal principle of res judicata. What the principle of res judicata means is that where a competent court has determined an issue and entered judgment thereon, neither of the parties to the proceedings may relitigate that issue by formulating a fresh claim, since the matter is res-judicata See Madukolu v. Nkemdilim (1962) 1 All NLR (Pt.4) 587; (1962) 2 SCNLR 341. Onu J.C.A. (as he then was) gave consideration to the question in the lead judgment of the court.

He stated, inter alia, as follows:-

“The first question one ought to ask oneself is whether declaration of title to land is co-extensive and co-terminous with declaration of the disputed boundary and whether it was unnecessary for the applicant to go to court to contest what had already been determined …..