Idowu Alase & Ors V. Sanya Olori Ilu & Ors (1964)

LawGlobal-Hub Lead Judgment Report

ONYEAMA, J.S.C

The appellants were the plaintiffs and the respondents the defen-dants in the court below. The claim was for a declaration of title to the farmland known as Iganke and situated in Imota, Epe District; there was a further claim for an injunction. The plaintiffs brought the claim on their own behalf and as representing “the entire members of Rowuyo family”, and the defendants were sued for “themselves and the entire members of Ogunbala’s family.”

The plaintiff’s’ case on the pleadings was that the land in question was first occupied by their ancestor Mawogbe from whom it had descended to them. A son of Mawogbe named Okusi married a woman of the defendants’ people and of her had-a son Ewesanya. As a result of the relationship which developed between the two families out of this marriage and a subsequent marriage between Salawu Anjorin of Ogmbala family and Olayemi Abudu of Rowuyo family, Salawu Anjorin was allowed to farm on Rowuyo family land; other members of Ogunbala family married women from Rowuyo family and were allowed to farm on Rowuyo family land; one such member was Enigbokan Anjorin whose brothers Oke and Tiamiyu joined him and farmed on Rowuyo family laud. Tiamiyu Anjorin, how-ever, went outside the area allowed to Enigbokan and farmed on land occupied by Taiwo Sunmogejo, a member of Rowuyo family; this led to a dispute which was referred to the head Chief, who warned Tiamiyu to desist from further interfering with the land; other menbersofOgunbalafamily,however. came on the land and commenced cultivation without the consent of the plaintiffs’ family.

The defendants’ caw was that the land in question was called ‘Egan Emuren’ and belonged to their ancestors before them; it was Taiwo Sunmogejo who went into Tiamiyu Animin’s land wrongfully and Tiamiyu Anjorin who complained. to the head Chief and took action in the Ikosi Native Court at Imota in Suit No. 22/1950; judgment went against Taiwo Sunmogejo and it was ordered that he should vacate the land in question; the de-fendants pleaded that “in view of the foregoing defendants say that the present plaintiffs are estopped per rem judicatam from bringing this action as the land the subject-matter of this action is the same land as in Suit No. 22/50 Native Court Ikosi referred to above.”

There are other allegations of fact in the defence but it is not necessary to set them out.

The case came before Doherty, J. in the High Court at Ijebu Ode for hearing on the 17th of April, 1962; the Teamed judge decided to hear the plea of res judicata as a prelimi-nary point. The defendants called evidence that in 1951 they instructed a surveyor to survey and map an area of land near Imota which measured 848.72 acres; that the area claimed in the suit and shown on the plan filed in court as Exhibit B was within the area surveyed and mapped by the surveyor; that the judgment in the native court related to the area of land near Imota which was surveyed and shown on a plan which was in evidence as Exhibit A. That was the extent of the evidence.

It was submitted to the learned judge on behalf of the defendants that the parties in the native court case and the suit before him were the same and that they sued and defended in the same capacity. In support of this submission attention was called to the fact that in the native court case Jole Anjorin had described himself as the head of his family, and to the evidence of Olupitan Ajaeaku. Mr. Solanke, who appeared for the plaintiffs, submitted to the trial judge that there was nothing in the native court judgment to show that the case was fought in a representative capacity; and that the identity of the land in dispute with that to which the native court suit relates was not proved.

The learned trial judge. decided in favour of the defendant’s plea of res judicata; he, therefore, dismissed the claim. In dealing with the submissions of Mr. Solanke he said:

“With regard to the first objection although the writ of summons did not say in what capacity the plaintiff sued or the defendant was sued, it is abundantly clear from the evidence in the case and also from thejudgmcm that each party represented his family in the 1950 action. In the course of his evidence Tiami-yu Anjorin (the plaintiff in that action) deposed as follows-

‘All the farms that are situated at the said Egan Emuren belonged to my family and no one else.” Again, Jole Anjorin, plaintiff’s 1st witness testified thus:-

“Plaintiff is my young brother of the same father.. We have many members of the family who owned the farm in question. I am now in the position of the head of the family. I can say much of this farm, I am the real per-son who asked the plaintiff to go and sue the defendant to court for this action, because he defendant has no portion of land or farm at Emmen and he did not allow my people to make use of the farm as they like.’

“Finally, Bakare Alashe, plaintiff’s 3rd witness who appeared on behalf of the community of Imota spoke of “Plaintiff’s family” and “defendants’ family” right through his evidence, thus confirming that the 1950 dispute was between the two families. With regard to the identity of the land, it is obvious from the combined evidence of Mr. Pitan and Tiamiyu Anjorin in this court that this has been amply proved.”

Thus, the learned trial judge found that the defendant in the native court case was defending on behalf of his family from the references in the evidence of Bakare Alashe in the native court bearing to the “defendant’s family” right. The defendant in the native court had not claimed to represent anybody but himself and, indeed, he was not sued in any but a personal capacity.

On the hearing of this appeal by the plaintiffs, the judgment was attacked on two main grounds, namely: that the parties and the Area Of Law in Suit No. 22/50 are different from the parties and Area Of Law in the present suit—J/3/61; and that the plan Exhibit A was inadmissible in evidence and had been wrongly admitted. The argument is that a plea of res judicata cannot be upheld unless it is shown that the parties, issues and Area Of Law in the case forming the foundation of the plea are identical with the parties, issues and Area Of Law in the later case in which the plea is raised; that the parties in the native court case (No. 22 of (1950) were different from those in the suit J/3/61 before Doherty, J. that in the native court suit the defendant was not sued in a representative capacity nor did he claim to defend in that rapacity; that the copy of proceedings (Exhibit D) made this clear and throughout the native court proceedings the defendant was referred to in the singular; that the incidental references to his family made by the plaintiff’s witness in the native court suit did not constitute the defendant the champion of his family in that case; and that his family was not privy to the case and the principle of the decision in Nana Ofori Atta II v. Nana Abu Bonsra [1958]  A.C. 95 did not apply; and the observations of Lord Red-cliffe on the principle of “standing by” in Nwakobi v. Nzekwu were referred to. Regarding the plan Exhibit A, it was submitted that since it was not countersigned by the Regional Director of Surveys as required by section 23 (1)(b)(ii) of the Survey Act it was inadmissible in evidence.