Morinatu .O. Oduka And Others V A. Kasumu And Others (1967) LLJR-SC

Morinatu .O. Oduka And Others V A. Kasumu And Others (1967)

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Delivering the Judgment of the Court

The appellants have appealed to this Court against the judgment of Fakayode, J. given at the High Court, Ikeja, on the 28th May, 1965. They were the defendants in an action instituted against them by the respondents who were the plaintiffs in the court below – Suit No. HK/63/61. as on the original writ of summons the claim of the plaintiffs was a follows:-

“(a)Declaration of title under native law and custom to a piece or parcel of land known as Bashua village in the Western Region of Nigeria, a plan of which will be filed in this court.

(b)An Injunction restraining the defendants, their servants and agents from any act of trespass on the said land.”

The plaintiffs’ Statement of Claim was amended twice and the last paragraph of the amended Statement of Claim on which the case went to trial reads as follows:

“WHEREUPON the plaintiffs claim a declaration that the Bashua family are the owners by native law and custom of all the area of land edged yellow in the plan attached herewith. In the alternative, the plaintiffs claim that all the land edged red in the plan attached herewith belongs to the Bashua family, subject to the rights of the descendants of Somolu, Sanusi Alade and Bajulaiye or those claiming title or interest through or under any of them.”

The claim for injunction was apparently dropped as no further reference was made to it in the course of the judgment.

The land, the subject-matter of the case, is situate at and known as Bashua Village and lies in the Yaba district of the mainland of Lagos. It is shown on the plan filed with the Statement of Claim and therein edged yellow. Such a plan i.e. No. LD 45, was produced in evidence by the plaintiffs and marked exhibit D. The case of the plaintiffs by their pleadings and the oral evidence given on their behalf is that the land in dispute was originally settled by one Odu Bashua, that the plaintiffs are his lineal descendants, that the defendants are the descendants of one Oduka, the child of a slave woman lbitola (or Ibitile) whose master was one Akinluyi Alashe. According to the plaintiffs, Akinluyi Alashe was a child of one Oluketebo who was one of the domestics of Chief Shadare Bashua the only child of Odu Bashua. It was also part of the plaintiff’s case that in or about the year 1917 Oduka became the head of the Bashua chieftaincy family and that it was in that capacity that he made several grants and sales of portions of the Bashua family land. Thus stated it is not clear from the plaintiffs’ case what had sparked off the present litigation: one has to go to the case of the defendants to see this.

The defendants claim that they descended from Oduka Akinluyi and that they and their ancestors before them have never been members of or related to the Bashua chieftaincy family. According to them the original owner of the land in dispute was their progenitor one Oniketebo (sometimes called Oluketebo) whose son Oduka Akinluyi was. They also maintained that the land in dispute belongs to the Oniketebo family, that Oduka Akinluyi dealt with portions of the land as head of that family and that the ancestors of the plaintiffs were some of the customary tenants placed on the land by the Oniketebo family in return for the payment of tribute.

Some of the dealings with portions of land at Bashua village had provoked litigation, chiefly between purchasers from the lineal descendants of Odu Bashua and those of Oduka Akinluyi, and some of the judgments in those cases were produced in evidence at the trial.

In a reserved judgment the learned trial Judge took the view that the question whether Oduka Akinluyi exercised dominion over the Bashua village land as the head of the Bashua chieftaincy family or as the head of the Oniketebo family had been decided in previous proceedings and that that question is now res judicata binding upon the present parties in this case.

He held that the result of the cases is that Oduka Akinluyi was at one time head of the Bashua chieftaincy family and that he dealt with the Bashua village lands in that capacity. He therefore entered judgment In favour of the plaintiffs granting them a declaration as follows:-

“The Bashua chieftaincy family are the owners by native law and custom of all the area of land edged yellow in the plan No. LD45 drawn by licensed Surveyor Kukoyi on 20-4-63 and marked Exhibit D in this case.”

The Judge followed this up by an explanation of the effect of the judgment in the following terms:-

“(a)The Bashua chieftaincy family shall be of 2 branches consisting of the plaintiffs’ family and the defendants’ (Oduka) family.

(b) That all the gifts, grants, sales/leases, mortgages, pledges or other dealings or dispositions in the land in dispute made by Oduka personally before 1926 shall be deemed or regarded to have been made by him in his capacity as head of the Bashua chieftaincy family and be deemed and regarded as having been made with the consent of the principal members of the plaintiffs’ and defendants’ branches of the family and were therefore valid for all purposes whatever.

(c) That after 1925 all such dealings or dispositions in the land in dispute without the consent of the principal members of the branches of the plaintiffs’ and defendants’ family shall be regarded as being invalid provided always that in an action for trespass, injunction or recovery of possession of such land whether or not the equitable defences of laches, acquiescence, standing by or long possession shall be available to the defendant will be determined upon the peculiar facts of each case.”

Before us on appeal the argument ranged around the implications of “res judicata”. Counsel for the defendants contended that the judgments produced in evidence did not constitute res judicata because the parties in the present case were not parties or privies to the other cases and the issues decided in those cases and those to be decided in the present case were not the same. He conceded that the lands in dispute in the previous cases were parts of Bashua village land. Counsel also argued that even though the judgments in the previous cases contained statements to the effect that Oduka dealt with lands as head of a family they did not directly decide that he did so as the head of the Bashua family, for that point was not necessary for the various decisions and so did not constitute such parts of the judgment as would operate as res judicata. Cases cited in support of this contention are: Jones v. Lewis [1919] 1 K. B. 328 and Penn-Texas Corporation v. Murat Anstalt and Ors (No .2) [1964] 2 All E. R. 594.

Counsel for the plaintiffs in his arguments contended that res judicata operated by virtue of the cases previously decided and that the effect of the previous judgment is that Oduka Akinluyi acted throughout as the head of the Bashua chieftaincy family.

We think that a great deal of the argument on behalf of the defendants is beside the point and that on the state of the pleadings at the time the action went to trial, the issue to be decided fell and now still falls within a small compass. One of the objects of pleadings is to settle the issues to be tried and we take it as established law that parties must be and are bound by their pleadings. The plaintiffs’ amended Statement of Claim reads in part as follows:-

“3. Both plaintiffs and defendants are descendants of the said Odu and accordingly members of the Bashua family.

4. In Suit No. 74/26 one Sanusi Alade successfully brought an action for declaration of title against Yesufu Adebiyi, Bashua Disu Otun Bashua and Sanni Akiluyi Alase for declaration of title to a piece of land edged red in the plan attached herewith having purchased the said land from the Bashua family.

7. The plaintiffs will contend at the trial of this action that the defendants are estopped by the proceedings and/or judgments in Suit No. 74/26 from denying that the land in dispute was Bashua family land or from claiming that the said land belongs only to the Oduka section of the family.

8. Further and in the alternative the plaintiffs will contend that the defendants are estopped by the judgment in Suit No. FSC 376/63 delivered In the Supreme Court of Nigeria on 9th April, 1964 (Apalara Bashua and Anor v. Mrs. Margaret O. Daniel) from denying that the land in dispute was Bashua family land or from claiming that the said land belongs only to the Oduka section of the family.”

The defendants’ amended Statement of Defence reads in part as follows:-

“3. The defendants were never members of Bashua family, but that certain members of Bashua family were at one time tenants of the Oniketebo family (which family was later popularly known as Oduka family) in respect of certain area of farmland known as Obashua…….

10. Consequently, Oduka on behalf of his family sold portion of the land ten-anted by the Bashuas to Sanusi Alade.

11. In Suit No. 74/1926: Sanusi Alade versus Y.A. Bashua and two others, Sanusi Alade successfully instituted action against two of the descendants of Seidu Odunran Bashua. The defendants unsuccessfully appealed against the said judgment…

16. Such tenants deriving title from members of Bashua family, have been successfully sued by persons deriving title from the Oduka family. Members of Bashua family have testified on behalf of their family for such defendants. The defendant will rely on such judgments as estopping the plaintiffs from re-opening the right of Oniketebo family to the land in issue.

The judgments which defendants will rely upon Include inter aria the following suits:-

(1) 75/57: The Registered Trustees of Hope Rising Voluntary Fund Society v D. M. Ihome and D. Apalara Bashua.

(2) 74/1926: Sanusi Alade v Yesufu Adebiyi Bashua and two others.

(3) AB/64 and 66/58: Fanny O. Johnson and another v L. B. Matilukoro, Osinyemi and Apalara Bashua.”

Thus it is dear that each party pleaded and relied on the judgments in Suit No. 74/26, Sanusi Alade v. Yesufu Adebiyi and Ors as estopping the other from re-litigating Issues which had been decided in that case. It follows therefore that at the trial it was common ground that the judgments in that suit creates an estoppel per rem judicatam as between both parties. Such a fact does not need any further proof and did not require to be proved any longer at the trial. If that be so, the only question for determination was what that case decided.

A copy of the judgment of the Divisional Court in that case as well as a copy of the judgment of the Full Court in the case was produced and admitted in evidence as exhibit A. The plaintiff in that case had purchased a portion of Bashua village land from Oduka and he had sued the defendants who were members of the Bashua family for a declaration of title to the land which he claimed to have bought. The point for decision in that case was whether Oduka as head of the family sold with or without the consent of the members of the family who should be consulted. The Divisional Court decided that such consents of the members of the Bashua family as were necessary were obtained by Oduka before the sale to the plaintiff. The defendants appealed to the Full Court which dismissed their appeal and observed as follows:-

“The respondent acquired the land in March 1925 by purchase from one Oduka, since deceased, who was head of the Bashua family to whom the land in question belonged.

The first two appellants are tenants on this land of the Bashua family and the third is a member of that family. A fourth defendant, Amodu Giwa Bashua, died before the judgment of the Divisional Court was delivered.

The learned Chief Justice found as a fact that the respondent did purchase this land from Oduka. This fact is clearly established by the evidence and nothing more need be said on that point.

It was argued, however, that Oduka did not obtain the consent of the other members of the family before he purported to sell this land, and that consequently the sale was invalid. The evidence on this point is not very satisfactory, but the learned Chief Justice, after consideration found that the consent of a woman Taiwo and of Sani Akinluyi Alase (the third appellant) had been obtained, and was not satisfied that is was necessary for Oduka to consult anyone else before selling.”

One would have thought that the point had been clearly resolved in that case that the land of Bashua Village belongs to the Bashua family. Counsel for the defendants, however persisted in the argument that the Divisional Court did not specifically refer in its judgment to the Bashua family as the family owning the land; that the observations of the Full Court describing the land owning family as the Bashua family should not be considered as a necessary part of the matter before the Full Court for decision and therefore not res judicata as against the defendants. The argument dearly overlooks the portions of the pleadings to which we had referred earlier on. It also overlooks the provisions of section 53 of the Evidence Act, cap 62. That section provides as follows:-

“53.Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case actually decided by the court, and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.”

Counsel was asked whether there was any evidence admitted in the earlier case which was excluded in the present case. Quite rightly he replied there was none.

We have come to the conclusion that the judgments in the Divisional Court and in the Full Court in Suit No. 74/26 decided that the land in dispute belongs to the Bashua family and both sides had fought the present case on the basis that the judgments operated as estoppel per rem judicatam in respect of matters decided therein. This disposes of the appeal.

Before ending this judgment we propose to make some observations on some litigation which took place subsequent to the proceedings in Suit No. 74/26. In 1959 one of the purchasers of land from Oduka Akinluyi sued two members of the Bashua family for a declaration of title to the land she had bought, damages for trespass and injunction. The plaintiff claimed that Oduka and not the Bashua family, to which the defendants belonged was the original owner of the land. She got judgment in the High Court but on appeal the judgment of the High Court was reversed in Appeal No. FSC 376/63, Apalara Bashua and Anor v. Mrs. Margaret O. Daniel decided on the 9th April, 1964. The judgments of the Divisional Court and the Full Court in Suit No. 74/26 were before the Court in that case and had been produced as exhibits 11 and 12. Delivering the judgment of the Supreme Court, Taylor, J.S.C. observed, inter alia as follows:-

“it is true that taking certain passages alone from exhibit 11 the impression can be created that Oduka was the owner of the land in Bashua village and that certain members of Bashua family paid tribute for their holdings. One must however look at exhibit 11 as a whole with a view to discovering the ratio decidendi of the judgment.

In our view, one thing is clear from the judgment in exhibit 11 and that is that the land at Bashua village did not belong solely and personally to Oduka under native law and custom. If this judgment shows, as it does, that Oduka was not the sole owner of land in Bashua village and that he had to get the consent of some members of a family before he could validly sell, the next question with which one is faced is: What is that family to which Oduka belonged? This in our view is answered by the judgment of the Full Court in exhibit 12, which was before the trial Judge……. The rest of the judgment further strengthens the view that the land was Bashua family land and that Oduka had a general authority to sell family land In order to raise funds for medical attention.”

Confronted with this judgment, counsel for the defendants argued that the present action was already instituted and was pending when FSC 376163 was decided and that the judgment could not therefore constitute res judicata. Counsel relied for this submission on the case of Houstoun v. Marquis of Sligo (1885) 29 Ch. D. 448. We cannot accept the submission. First of all the facts of Houstoun’s case are not on all fours with those of the present case. Then there are the rather strong reservations of Pearson, J., in that case as to the propriety of deciding the case on that point alone. Estoppel per rem judicatam is a rule of evidence whereby a party (or his privy) is precluded from disputing in any subsequent proceedings matters which had been adjudicated upon previously by a competent’ court between him and his opponent. If the evidence of the res was admissible and properly admitted It becomes judicata Irrespective of the time the proceedings involving it were initiated. In Morrison Rose and Partners v. Hillman [196112 Q.B. 266 a similar argument was addressed to the Court of Appeal and was rejected. In the course of his judgment Holroyd Pearce L J. observed at p. 277 as follows:-

“1 can find no ground for creating an artificial exception from the general rule of estoppel per rem judicatam by distinguishing res judicatae that follow the issue of a writ from those which precede it. The principles which make the latter desirable have no less application to the former, and should be applied to both alike.”

In that case the pleadings were amended to incorporate the judgment which was given during the pendency of the action and pleaded as a bar. It is to be observed that in the present case the Statement of Claim was amended in order to include the judgment in FSC.376163 and plead it in bar. The decision in Morrison Rose and Partners v. Hillman follows that in Bell v. Holmes [1956] 3 All E. R. 449; [1956] 1 W. L R. 1359 which had been followed by the Federal Supreme Court in lhenacho Waned and Ors v. Nnadikwe Oduwa and Ors (1959) 4 FSC 132.

All the grounds of appeal argued on behalf of the defendants fail and the appeal is accordingly dismissed. The appellants must pay the respondents the costs of the appeal fixed at 40 guineas.

Other Citation: (1967) LCN/1362(SC)

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