Chief Y. Abiodun V. Chief D. Fasanya (1974)

LawGlobal-Hub Lead Judgment Report

B. A. COKER, J.S.C. 

In the High Court, Lagos, the present respondent instituted these proceedings against the appellant and on account of its relevance we set out fully hereunder the writ showing the names and designations of the parties and the claims:

“CHIEF DAUDA FASANYA Plaintiff

The Elegushi of Ikate

(for himself and other

members of Elegushi Family)

AND

CHIEF YESUFU ABIODUN

The Oniru of Lagos

(for himself and the IRU

Chieftaincy Family) Defendant

The plaintiffs’ claims against the defendant are:

(i) A declaration of title to a parcel of land known as ‘OKO OYINBO’ near Maroko in the Lagos State; and

(ii) An injunction to restrain the defendant and all the members of his family, his agents and/or his servants from coming on the said parcel of land and molesting the plaintiff and the members of his family.Dated the 21st day of October, 1971.”

Pleadings were duly ordered and a statement of claim was filed by the plaintiffs (i.e. the present respondents) in which they aver that the plaintiffs’ family is of the Lagos Idejo Class and that that family have at all material times been the owners under Native Law and Custom of the piece of land known as “Oko Oyinbo” and that they have always been in possession thereof and indeed have always let out portions of the said lands to rent-paying tenants. Paragraphs 5 and 6 of the plaintiffs’ statement of claim state as follows:

“5. The plaintiff avers also that the defendant and his family have been coming on to the said land to harass their tenants.

6. The plaintiff will show at the trial that the defendant and his family have no interest or title to any part of the said land.”

The defendants (ie. the present appellants) did not file a statement of defence but soon after the plaintiffs’ statement of claim was filed and delivered they filed a motion in court asking for

“an order that the plaintiff’s claim be dismissed or stayed indefinitely on the ground that the claim is res judicata and/or is frivolous, vexatious and an abuse of the process of the court and for such further order or orders as this Honourable Court may deem fit to make.”

The defendants’ motion is supported by an affidavit and we set out hereunder the principal contents of the said affidavit:

“2. That the land popularly known as Oko Oyinbo and referred to in the writ of Summons in this action is a portion of Dado Land which was the subject-matter of Suit No. IK/7/64 (Chief Yesufu Abiodun Oniru & ors. versus Chief Dauda Fasanya).

3. That the document attached herewith and marked Exhibit’ A’ is a true copy of the judgment of the Ikeja High Court in respect of the said Suit No. IK/7/64.
4. That there was further litigation over the said land as per the judgment of the Ikeja High Court in Suit No. 00263/65 a copy of which is attached herewith and marked Exhibit ‘B’.
5. That in spite of the judgments hereinbefore mentioned the above-named plaintiffs instituted the action in Suit No. LD/605/68 Madam Alimotu Elegushi & Ors. v. Chief Abiodun Oniru) in respect of the same land and a copy of the judgment in that suit is attached herewith and marked Exhibit ‘C’.
6. That no leave of court was obtained before the present action was instituted. ”

Thus, the defendants have attached to their affidavit as Exhibits thereto the following court judgments and processes, that is to say:

(i) Exhibit A-judgment of the High Court, Ikeja, in Suit No. IK/70/64-Chief Yesufu Abiodun & Ors. v. Chief Dauda Fasanya-delivered on the 23rd April, 1965.

(ii) Exhibit B-judgment of the High Court, Ikeja, in Suit No. IK/263/65-Chief Yesufu, Abiodun, the Oniru of Lagos (jor himself and the Iru Chieftaincy Family) v. Lamina Lasisi and 8 Ors.-delivered on the 31st January, 1968.

(iii) Exhibit C-ruling of the High Court, Lagos, in Suit No. LD/605/68-Madam Alimotu Elegushi & Ors. (as the principal heads of their respective branches of the Elegushi Chieftaincy Family) v. Chief Abiodun Oniru; and

(iv) Exhibit D-a copy of the writ of summons in Exhibit C which shows that the writ was endorsed as follows:

“The plaintiffs claim from the defendant the following:

(1) The sum of 100:…:… being special and general damages for trespass committed by the defendant on the plaintiff’s land at Dado.

(2) Declaration that all that part and parcel of land known as Ilado, Ikate, Igbokushu, Dasan, Maiyegun, Gbara, Alagutan, Morekete, Olukotun, Mosafejo, Ogoyo, Ebute Oloja is the property of the ELEGUSHI CHIEFTAINCY FAMILY

(3) An injunction restraining the defendant, his agents and servants from committing or continuing any acts of trespass against the said land.”

We have ourselves read and studied the various Exhibits and are satisfied that according to Exhibit A the plaintiffs therein obtained judgment against the defendant for 250 damages for trespass and a perpetual injunction restraining him from trespassing on Ilado land. In ending the judgment in that case, the learned trial judge observed as follows:

“The claim of the plaintiff is greatly strengthened by the decision of Butler Lloyd, J. in Suit No. 215/1941, Exhibit “A”. The case shows. that the defendant and his family do not own the land described as Ogoyo. The land separates the land in dispute (Ilado) from Ikate which plaintiff said was the land his ancestor gave to the Elegusi family. That being the case it seems to me unlikely that the Elegusi family would be the owners of Dado. I believe and find as a fact that the land in dispute (Dado) is the property of the plaintiff and his family and that they have been his family and that they have been in possession of it for many years.

I also accept the evidence of the plaintiff and his witnesses that the defendant has committed acts of trespass on the land through his servants and/or agents. I therefore enter judgment for the plaintiff for the sum of 250 damages for trespass and injunction as claimed.”

Also, by the judgment produced as Exhibit B, the plaintiffs in that action obtained an order for possession of the “land at llado” against the defendants therein and we observe that in the course of that judgment, the learned trial judge observed thus:

“I hold that plaintiff’s family are the owners of the land in dispute and are entitled to possession which the defendants will give up on/or before 31st March, 1968. The plaintiffs are entitled to the costs of the action assessed at 100 guineas.”

Exhibit C, as stated before, is the ruling of the High Court, Lagos, in respect of an application brought before that court. The learned trial judge described the application thus:

“This is an application by the defendant for an order for judgment in the above-mentioned suit in favour of the above-named defendant/applicant in default of the plaintiffs/respondents’ failure to file their statement of claim as ordered by the court.”

The learned trial judge, in Exhibit C, dealt at some length with the matters canvassed by the parties in respect of the application and ended his ruling thus:

“I have however come across the judgment of Khawam vs. Elias 5 ES.C., page 224 were rule 12(b) of Order 1 of the Judgment (Enforcement) Rules of the Western Region of Nigeria, Volume 6 cap.116 was considered and it was there held that where in default of a statement of defence judgment could be entered in favour of the appellant under that Rule. It would therefore follow afortiori that if a plaintiff defaults in filling a statement of claim within the period ordered by the Court or any extended period, then under Rule 12(a) of Order 1 the Court is entitled either to stay further proceedings in the suit until the Order is fulfilled, or may give a judgment or non-suit against such plaintiff with or without libeny of bringing other suits on the same grounds of action.

In view of this authority therefore, the application in this case would be granted and judgment would be given against the plaintiff by striking out the action because that is the only judgment that could be entered against the plaintiff, since no pleadings had been settled. It is hereby ordered that the plaintiffs’ claim in this case be struck out with costs…….

In view of the action of the plaintiffs in this case I would order that plaintiffs should not be allowed to file action claiming the same remedy without the leave of court.”

We have already referred to and indeed set out in full the endorsement of claims as per the writ in Exhibit C.

In response to the affidavits of the defendants the plaintiffs also filed a counter-affidavit in which they severely denied that the land in dispute in the present action is the same or is connected with the land comprised in the judgments Exhibits A, B and C. Paragraphs 5 to 9 of the counter-affidavit of the defendants state as follows:

“5. That I accompanied the appointees of the plaintiff and saw the said land.

6. That the land in dispute in this suit is not the same as, and does not form any part of any of the lands in respect of which the judgments referred to in the affidavits in support of the defendant’s motion were given.

7.That the land in respect of which this suit was brought is at Oko Oyinbo and not at llado and is at a distance from the ones mentioned by the defendant.

8. That the land known as Oko Oyinbo does not form part of llado land as alleged in the affidavit in support of the defendant’s motion and is quite a distinct piece of separate land.
9. That the plaintiff will lead evidence at the trial to show that the land in respect of which this suit was brought does not form part of any of the lands in respect of which the judgments referred to by the defendant were given.”

The case eventually came to hearing. These is a note of what transpired at the commencement of the hearing in the High Court, Lagos, before Kassim, J. but the available notes show that no further evidence was called by the parties except to produce other copies of Exhibits A to D (admitted in evidence as Exhibits A1, B1, C1 and D1 respectively) and learned counsel on both sides addressed the court at length on the application of the defendants for the case to be dismissed on grounds stated by the defendants in their application. It was contended before the learned trial judge that llado land with which the judgment Exhibit A was concerned comprises, even according to the defendant therein, of a number of villages one of which he had described as “Oko Oyinbo”. Learned counsel for the defendants also argued that throughout Exhibit A the defendant therein “defended the case by resting on his family title and that the judgment was against the title so set up”. Learned counsel for the defendants submitted as well that in Exhibit B the defendants are all members of the Elegushi Family and that their defence rested on the title of the Elegushi Family. Learned counsel for the defendants further submitted, with respect to Exhibits C1 and D1, that the defendants therein defended the case for their family and that the parties therein were the same as the present parties before the Court; and also that the present action is an abuse of the process of this Court inasmuch as the defendants therein have not asked for or obtained the leave of Court before commencing the present proceedings.

On the other hand, learned counsel for the plaintiffs submitted that the defendants’ application could not succeed on res judicata and submitted that before res judicata could succeed the “parties must be the same and the cause of action must be the same in the judgment pleaded and the suit before the court.” With respect to Exhibit A (or AI), learned counsel for the plaintiffs contended that the land therein concerned in not “necessarily” the same as the land in dispute in he present proceedings and that in any case in Exhibit A (or AI) the defendant therein was sued in his personal capacity and not as representing the family of Elegushi. Learned counsel for the plaintiffs further contended with respect to Exhibit B (or B1) that the plaintiffs therein had sued just nine individuals for damages for trespass and not for title and that they were not sued as representing the Elegushi Family. With respect to Exhibit C (or C1) learned counsel submitted that the plaintiffs therein sued as heads of the various family branches and not as representing in solidum the Elegushi Family and that in any case the defendant therein was sued in his personal capacity. Learned counsel submitted . as well that “Oko Oyinbo” is not one of the parcels of land which formed the cause of action in Exhibit D and that, inasmuch as the defendants in the present proceedings had filed neither a statement of defence nor a plan, the Court should order that their respective families in their representative capacities should be allowed to fight out the present case.

In a reserved ruling, the learned trial judge decided that the defendant did not make out the plea of estoppel per rem judicatam. The learned trial judge then considered the other leg of the defendants’ application, i.e. to strike out the plaintiffs’ claim as being frivolous, vexatious and an abuse of the process of the court. This leg of defendants’ prayer was considered by the learned trial judge as against the order of Sowemimo, J., as he then was, in Exhibit C, that the plaintiffs therein shouIdnot bring any action on this same subject-matter without the leave of the court. On this, the learned trial judge observed thus:

“The order of Sowemimo, J. (as he then was) was against the plaintiffs in that particular case (Exhibit C) who are Madam Alimotu & Ors. (as principal heads of their respective branches of Elegushi Chieftaincy Family) and not the present named plaintiff who represents the whole of the Elegushi Family: for the question arises, ‘Are there more principal heads of branches in Elegushi Family than the named plaintiff in Exhibit “C7″‘. Moreover, the particulars attached to the writ of summons in that case are not prima facie on all fours with those in the present case.”

The learned trial judge thereafter dismissed the defendants’ application with costs, ordered the defendants to file their statement of defence and fixed a return date for the case to be listed. The defendants have appealed against that ruling to this Court by leave of that court and before us, as should be expected, the argument ranged around the application of estoppel per rem judicatam to the present case instituted by the present plaintiffs. Learned counsel for the defendants argued at length to demonstrate that the parties, the subject-matter and the cause of action in Exhibits A, Band C (or A1, B1 and C1) are the same as in the present proceedings and referred us, in substantiation of this argument, to various portions of these Exhibits, maintaining that in order to decide whether or not estoppel applies it is the duty of the court to examine the substance of the cases and not just to rely upon the title of the court processes. It is fair to state that whilst at the beginning of his argument learned counsel for the plaintiffs attempted to argue that the parties could be and are different, he eventually conceded this point and courageously agreed with the points made by learned counsel for the defendants.

For the application of estoppel per rem judicatam, it is well settled that a number of circumstances must co-exist; in short, there must be the identities of parties or their privies, subject-matter of the actions and the cause of action in the antecedent case or cases and the new one. The learned trial judge himself was aware of this and directed himself thus:

“. . . and with regard to the first ground, i.e. that the claim is ‘res judicata’ , in the case of Chief Ogbuloke Ata (for himself and on behalf of Amusuoro people) vs. Chief Obaeri Ata and five others (for themselves and on behalf of the Avonkwu people) (1962) 6 E.N.L.R. p. 1, which I decided as Acting Puisne Judge at Umuahia, I saw at page 2 on the authority of George Spencer Bowen on the Doctrine of ures judicata’, 1924 Edition, at page 98, paragraph 13, that any party who is desirous of setting up (res judicata’ by way of estoppel whether he is relying on such (res judicata’ as a bar to his opponent’s claim, or as a foundation of his own must establish each and everyone of the following, unless it has been admitted:

(i) that the alleged judicial decision was what in law is deemed such;

(ii) that the particular judicial decision relied upon was in fact pronounced as alleged;

(iii) that the judicial tribunal pronouncing the decision had competent jurisdiction in that behalf;

(iv) that the judicial decision was final;

(v) that the judicial decision was, or involved the determination of the same question as that sought to be controverted in the litigation in which the estoppel was raised;

(vi) that the parties to the judicial decision, or their privies, were the same persons as the parties to the proceedings in which the estoppel is raised or their privies, or that the decision was conclusive ‘in rem’ .”

The learned trial judge thereafter held that the defendants did not establish estoppel by res judicata “especially with regard to the requirement that the parties must be the same for the parties in the present suit are plainly not the same as the parties in Exhibits A, B and C”. With respect to the identity of the subjectmatter, the learned trial judge made no findings whatsoever but took the view that as the defendants had not filed any plans about the land in dispute “it is unsafe to decide this issue upon affidavit-evidence”. Thereafter the learned trial judge held that the defendants must fail in their motion since they had failed to prove the identity of the parties.

We are of the view that in this respect the learned trial judge was mistaken. We point out first of all that before us learned counsel on both sides are agreed that the parties in Exhibits A, B and C are the same in substance. The judgment ‘in Exhibit A (or AI) is prefaced with the following observations of the learned trial judge concerning the parties and the subject-matter of the case:

The plaintiffs’ claim against the defendant is for 500 damages for trespass and for an injunction to restrain the defendant by himself, his servants or agents or otherwise from continuing, or repeating the acts complained of. The action is brought by the plaintiff Chief Oniru of Lagos for himself and the Iru Chieftaincy Family. The defendant is Chief Elegusi of Lagos and the present Head of the Elegusi Family. The dispute between the parties is about Ilado land. ”

Before the court in that case, i.e. Exhibit A, there was evidence from the defendants that one Clarke, who occupied a portion of llado land which thereafter became known as “Oko Oyinbo” (white man’s farm), was driven away from the land by the defendant because it was discovered that the European had been put on the land by the plaintiffs. The learned trial judge in that case decided on that evidence in that case that “I do not believe the defendant and the 1st defence witness about the grant to Clarke. I do not believe them that Clarke was driven from the land by Elegusi. If the expatriate (white man) was not allowed to settle on the land, why was the name of the place called Oko Oyinbo (white man’s farm) I believe the Oniru that his predecessor-in-title leased the land in Dado to Darke as evidenced by Exhibit “B”……… The plan Exhibit ”F’ tendered by the plaintiff shows the precise area of Ilado land in dispute. Besides this both sides know the extent of the land and they each gave the names of the villages making up what is called Dado as distinct from Ilado village which in itself in one of the constituent villages making Dado. The identity of the land in dispute is clear and known to both sides. The area of 54 acres leased to Clarke by plaintiff’s predecessor in 1927, Exhibit “B” is within the land in dispute.”

In Exhibit A (or AI) therefore, the learned trial judge found the parties as described above and the subject-matter to be Dado land of which “Oko Oyinbo” (or white man’s farm) formed portion. The learned trial judge therein found that the Oniru Family are the owners of the land in dispute and gave judgment against the defendants for damages for trespass and injunction.

Next, we consider Exhibit B (or B1). The plaintiff in that action was designated as follows:

“Chief Yesufu Abiodun, The Oniru of Lagos (for himself and the Iru Chieftaincy Family)”,

and in the writ of summons the plaintiff claims against the defendants the recovery of possession of “all that piece or parcel of land at Dado which was the subject-matter of Suit No. IK/70/64 and on which the plaintiff relied in these proceedings”. Thus, it is manifest that the subject-matter of that claim is the same as in Exhibit A (or A1) and the plaintiff in Exhibit B is the same as the plaintiff in Exhibit A. Paragraph 6 of the statement of defence filed by the defendants in Exhibit B is as follows:

“The defendants in reply to paragraph 6 of the statement of claim aver that they were not parties to Suit No. 1K/70/64 which was an action against Chief Elegushi personally further that during the hearing of the action the defendants Chief Elegushi sought to defend the action on behalf of the Family and this application was opposed by the plaintiff and any such judgment was against Chief Elegushi personally but the defendants aver that portions occupied by them were not obtained from the Elegushi personally but was from the Elegushi Family, which the plaintiff successfully opposed being made parties in Suit IK/70/64”,

and in the course of this judgment in that case, the learned trial judge found thus:

“The defendants’ defence is wrapped round Chief Elegusi, who put them on the land.”.

Thus, by Exhibit B, the defendants were found to be privies of Chief Elegushi and his family who put them on the land and whom they claimed by their own statement of defence to have granted to them portions of the land in dispute which they occupied.

We have already set out the contents of the writ Exhibit D on which the proceedings Exhibit C (or C1) were based. The plaintiffs therein were described as the principal heads of their respective branches of the Elegushi Chieftaincy Family and the defendant is the same Chief Abiodun Oniru. It is readily seen from Exhibit D that the claim relates to land at llado which also fonned the subject-matter of Exhibit Al and Exhibit B1. The issue in Exhibit A (or A1) as in Exhibit B (or B1) is the ownership of the land known as llado and that is as well the issue in Exhibit D. The foregoing analysis is sufficient to demonstrate that the parties in the three cases are the same, the subject-matter is llado “of which Oko Oyinbo forms a portion” and the relevant issue at all times is the title to that land.

It is then necessary to look at the present action. The parties and the claim have already been copied out earlier on in this judgment. Surely the parties, the subject-matter of the claim, and the cause of action are all the same as in Exhibits A (or A1), B (or B1), C (or C1) and D (or D1). The learned trial judge in this case had some qualms about the failure of the defendants to file a plan in this case and thought it was unsafe to decide the identity of the lands concerned on affidavit evidence. The stand taken by the learned trial judge did not take into consideration the fact that the land in question was known to both parties by name and that it was so named in this writ by the present plaintiffs who were the substantive defendants in Exhibit A (or A1) and in which it was expressly found that “Oleo Oyinbo” was a part of llado land On these clear facts, it is unnecessary to file a plan and equally unnecessary to ask that one should be so filed.

We have come to the conclusion that the defendants have fully proved estoppel per rem judicatam and that the plaintiffs herein are clearly estopped in the way described by the defendants since they had litigated the same subject-matter before and had lost. We do not consider it therefore necessary to deal at any length with the other leg of the defendants’ application that the plaintiffs’ case be dismissed as being frivolous, vexatious and an abuse of the process of the court. The learned trial judge refused to make the order sought on the grounds that the parties and that the particulars of the claims (whatever that may mean) are not identical in order to make him enforce the order of Sowemimo, J. in Exhibit C to the effect that the present plaintiffs might not be allowed to file any action concerning the same subject-matter without the leave of court. Our findings and conclusions above resolve the question of the identity of the parties and what the learned trial judge described as “the particulars attached to the writ of summons in that case” is all but clear: still more obscure is the observation of the learned trial judge that these particulars “are not prima facie on all fours with those in the present case”.

The defendants’ application for dismissing the plaintiffs’ claim on the grounds of estoppel per rem judicatum should have succeeded and the learned trial judge had wrongly dismissed the said application.

The appeal succeeds and it is allowed. The order of the learned trial judge in this case dismissing the application of the plaintiffs is set aside and an order is made in favour of the defendants as prayed in the terms of their motion dated the 13th day of July, 1972; accordingly, the plaintiffs’ case is dismissed. This shall be the judgment of the Court. The plaintiffs shall pay to the defendants the costs of these proceedings fixed in the High Court at N20 and in this Court at N174.

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Other Citation: (1974) LCN/1854(SC)