Madam Adepeju Florence Adedeji V. Hon. Jacob Adewale Fatoyinbo & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment)

This appeal is against the ruling of the High Court of Ondo State sitting at the Akure Judicial Division delivered on 11/2/2011 wherein the trial court overruled the defendant’s (now appellant’s) preliminary objection raised vide a motion on notice dated 4/10/10 and filed on 5/10/10 seeking the dismissal of the plaintiffs’ (now respondents) suit in limine for lack of jurisdiction on the basis of estoppel per rem judicatam.

By their writ of summons dated 15/3/2010, the respondents instituted an action against the appellant at the court below for the following reliefs:

1. Declaration that the plaintiff’s are the persons entitled to Statutory Rights of Occupancy in respect of a piece or parcel of land being at Ipona-nla farmland, Ondo Road, Akure bounded by Adun farmland and Akingbade farmland.
2. Perpetual injunction restraining the defendant, her agents, privies, assigns, representatives and any person or persons taking instructions or deriving interest from her HOWSOEVER/WHOSOEVER from any further acts of trespass on the aforesaid plaintiffs land forthwith.
3. N5 Million as damages for trespass.

Upon being served with the writ of summons the appellant caused a memorandum of appearance dated 16/3/2010 to be filed on her behalf on 22/3/2010. In support of the writ of summons the respondents filed a statement of claim dated 21/6/2010. Thereafter the appellant filed a motion on notice dated 4/10/2010 praying for an order dismissing the suit for want of jurisdiction. The grounds of the application were:

1. “The Plaintiffs/Applicants are estopped from re-litigating a matter/issue already adjudicated upon by a court of competent jurisdiction.
2. The present suit constitutes (sic) abuse of court process.”

The application was supported by a 9 paragraph affidavit deposed to by the appellant herself with exhibits attached thereto and marked Exhibits A and B respectively. The averments, being quite brief are reproduced hereunder:

1. “That I am the Defendant/Applicant in this case.
2. That I am nee Okopasha, a member of Adejugbe Okopasha family of Akure.
3. That I know the plaintiffs and their predecessors as members of Olisa Isinkan family, Akure.
4. That the land in dispute in this suit had once been litigated upon by the family of the defendant/applicant’s family and the family of the plaintiffs/respondents in suit no. AK/11CL/69, Divisional Grade “A” Customary Court, Akure on appeal to High Court in suit no. AK/29A/72.
5. That the plaintiffs/respondents are children/members of family/privies of Oluloye Olisa, Isinkan family, Akure whom my family instituted suit no. AK/11CL/69 against and suit no. AK/29A/72 on appeal over the subject matter of this action at Ilasun bush Ondo Road, Akure.
6. That my family and I are highly irritated and embarrassed by the present suit.
7. That Niran Disu my counsel informed me and I verily believe as follows:

(a) That the plaintiffs and their family in the present suit are the same as in the previous suits no. AK/11CL/69 and AW29A/72.

(b) That the subject-matter and issues raised in the present suit are the same with the previous suits AK/11CL/69 and AK/29A/72 on appeal; certified true copies of the particulars of claims, defence and Judgment in suit no. AK/11CL/69 are hereto attached as a bundle and marked Exhibit ‘A’.

(c) That the final judgment delivered on AK/29A/72 to which there has been no appeal is hereto attached and marked Exhibit B.

(d) That the judgment delivered in suit no. AK/29A/72 bind (sic) the parties and their agents, servants, privies, predecessors in title, heirs and successors in title including the parties in the present suit which judgment was decided in favour of the defendants predecessor in title over the subject matter of this action.

(e) That the farmland subject matter of the action previously litigated upon by the parties is at Ilasun but the plaintiffs choose to call it Ipona-Nla, Ondo Road, Akure in the present suit.

(f) That there must be an end to litigation.

8. That it is in the interest of justice to grant this application as the present suit constitute (sic) an abuse of the Court process.”

(Emphasis mine)

In reaction thereto the respondents apparently filed a counter affidavit as well as a further counter affidavit. A copy of a judgment referred to but omitted in the counter affidavit and a copy of a survey plan prepared for the suit were allegedly attached to the further counter affidavit. This information is gathered from tie summary of the case by the learned trial Judge at pages 82 – 83 of the record in the course of the ruling that gave rise to this appeal. See also the Registrar’s certificate. Unfortunately the said counter affidavit and further counter affidavit referred to were not copied into the record. The appellant on her part filed two further and better affidavits. Only the one dated and filed on 30/11/2010 is contained in the record at pages 70 – 71. Two survey plans referred to as Exhibits A2 and A3 in the said further and better affidavit are at pages 72 and 73 of the record.

After listening to the submissions of learned counsel for the parties urging their respective positions on the court, the learned trial Judge in a considered ruling delivered on 11/2/2011 held that the application was incompetent for the failure of the appellant to raise the issue of estoppel per rem judicatam in her pleadings prior to seeking the dismissal of the suit on that ground.