Muda Anwoyi & Ors V. John Bankole Shodeke & Ors (2006)
LAWGLOBAL HUB Lead Judgment Report
KALGO, J.S.C.
In this appeal, there are only two issues for the determination of this court and agreed to by the parties. Issue 1, which is the most important and substantive deals with once more with issue estoppel per rem judicatam.
The case giving rise to this appeal has a very long protracted antecedent which must be set out clearly for a better understanding of the issues involved.
In suit No. IK/21/67, the respondents, as plaintiffs sued the appellants on behalf of the Beku-Onimaba family for declaration, N400.00 damages for trespass and injunction in respect of a parcel of land measuring 118.7 acres only contained in a survey plan admitted as exhibit ‘A’. The appellants did not file any counter-claim but at the end of the trial, the respondents’ case was dismissed in its entirety by Oshodi J. They appealed to the Court of Appeal and the appeal was dismissed. They further appealed to the Supreme Court in case No. SC. 184/89 and it was again dismissed. The judgment of the Supreme Court is on pages 962 – 1002 of the record. Thereafter, the appellants proceeded to eject the respondents and their tenants from the land in dispute as in exhibit ‘A’ and also from the larger area of land covering 596.7 acres contained in survey plans, exhibits F. and G. in IK/21167. This resulted in a fresh action by the respondents against the appellants in suit No ID/60/92 – J. B. Shodeke & Ors v. Muda Anwoyi & Ors which gave rise to the instant appeal.
In suit No ID/60/92, the parties filed their respective pleadings.
The appellants who were the defendants raised a counter-claim and at the end of the trial, Longe J. granted all the claims of the respondents (except inquiry as to damages) and dismissed in its entirety the counter-claim of the appellants.
The appellants were dissatisfied with this decision and they appealed to the Court of Appeal. In appeal No. CA/L/460/98, the Court of Appeal dismissed the appeal as lacking in merit. They now appealed to this court.
In this court, the parties filed and exchanged their respective briefs between them. The appellant formulated two issues for the determination of the court which read:
“(1) Whether the Court of Appeal was right in holding that the decision in IK/21/67, CA/L/43/87 and SC.184/89 do not create issue estoppel to bar the respondents from relitigating the issues decided therein.
- If issue estoppel is not applicable, whether in the circumstances of the case now on appeal, the Court of Appeal was right to confirm the High Court judgment dismissing the appellants’ counter-claim”.
The respondents’ counsel in his brief, also raised only 2 issues which are substantially the same as those of the appellants. I shall consider the appellants’ issues.
Issue (1)
This deals with the legal principle or doctrine of res judicata, issue estoppel or estoppel per rem judicatam. They all point to the same thing and are usually used in court as a defence to an action.
They are used to show that the issue or issues raised in an action in court have been determined and adjudicated in a previous action by a court of competent jurisdiction and so cannot be relitigated in any court. It is in fact a complete defence to any subsequent action. What the respondents are saying in their brief on this issue is that the reliefs claimed by the appellants in suit No. ID/60/92 have already been litigated and determined in suits numbers 1K/21/67; CA/L/43/87 and SC. 184/89 and cannot be relitigated again. This makes it incumbent upon me to set out in some detail, the reliefs claimed in the 2 cases before the High Courts and the decisions reached thereon and the decision of the Supreme Court in SC. 184/89. I shall use the final pleadings of the parties at the trial. In suit No. IK/21/67 the reliefs claimed by the respondents as plaintiffs as per their further amended statement of claim (pages 1048 – 1053) are:
- “A declaration that the Beku-Onimoba family are the absolute owners under native law and custom of the land in dispute.
- N400.00 special and general damages for trespass to the said land.
- An injunction restraining the defendants, their servants and/or agents, from further trespass.”
At the end of the trial, Oshodi J. in a considered judgment I delivered on 23rd August 1986 dismissed the respondents’ claims with costs. The respondents’ appeal to the Court of Appeal was dismissed as being without merit.
In suit No. 1D/60/92, the reliefs sought for and claimed by the respondent against the appellants were for:-
“(1) A declaration that the purported ejection of the plaintiffs by the defendants from parcels of land situate at Nos 130, Igando Road, Igando, 13/15 Idowu Anisore, Igando and 9, Muri Olusande Street, Ikotun, all in Lagos State on the 10th of January, 1992 is wrongful and or null and void.
(2) A declaration that any ejection of the plaintiffs from the plaintiffs from the parcel of land measuring 118.7 acres situates of Igando or near Ikotun, Lagos State and more particularly shown and delineated edged in red in plan No. 0/135 attached herewith or any part thereof must be by due process or law by the 1st to 11th defendants suing the plaintiff to the appropriate court and obtaining an executory judgment which may be executed upon through the due process of law.
(3) A declaration that the defendants cannot lawfully eject the plaintiff from land they claim to belong to Osunba family, shown, delineated and edge in red in the Osunbas family Plan attached herewith measuring 96.7 acres or any parts thereof without going through the same procedure as is (2), above.
(4) A declaration that the purported ejection of the plaintiffs vide or the purported execution of the judgement in suit No. IK/21/67 John Bankole Sodeke & ors v. Mojidi Pelu & ors dated 22/8/86 and appeal No. SC. 184/1989 dated 15/11/91 on the 10th of January, 1992 is wrongful unlawful, null and void.
(5) An order directing an enquiry as to damages due to the said wrongful acts of the defendants.
(6) An order of injunction restraining the defendants, their servants, privies and/or agents from harassing or further harassing and/or agents from disturbing the defacto processing until or except a lawful judgment of a court of law in fresh proceedings apart from the said case thereof is contained against the plaintiffs to be lawfully executed by due process of law.
(7) An order of injunction restraining their privies servants and/or agents from attempting to execute or from executing the said judgment in any form or through any of the models of enforcing judgments provided by law aimed at ejecting the plaintiffs or their tenants or privies from the said parcel of land.”
In this case, the appellants as defendants filed, in their further amended statement of defence, a counter-claim against the respondents claiming:-
“(a) Forfeiture on the grounds of misconduct by challenging the title of their overlord of the whole area verged “RED” in exhibits F & G tendered in suit No.IK/21/67.
(b) Possession of the land
(c) Perpetual injunction restraining the plaintiffs, their agents, servants and or privies from further trespassing on the land in dispute.”
The trial was then conducted by Longe J. who in a considered judgment on 24th March, 1995, dismissed the respondents’ claims and the counter-claim of the appellants. The appellants appealed to the Court of Appeal and their appeal was again dismissed. They now appealed here.
The judgment of Oshodi J. in suit No. IK/21/67 was affirmed by the Court of Appeal in appeal No CA/L/43/87 and by the Supreme Court in SC. 184/1989. The respondents in IK/27/67 claimed absolute ownership of the land in dispute comprising of 118.7 acres, N400.00 damages for trespass and injunction, the parties in the case are bound by the decisions of the courts on all the claims of the respondents, and they cannot relitigate on any of the claims thereon.
The judgment of Longe J. in suit No ID/60/92 was affirmed by the Court of Appeal in appeal No. CA/L/460/98. The respondents, who were still the plaintiffs in the trial court, asked the court for declarations to the effect that any attempt to eject them from the land in dispute (in this case 596.7 acres) in purported execution of the Judgment in IK/21/67, is wrongful, null and void. They also claimed injunctions to restrain the defendants now appellants, from ejecting them from the land in dispute. The parties filed their pleadings and the appellants raised a counter-claim for:-
“(a) Forfeiture on the grounds of misconduct by challenging the title of their overlord of the whole area verged “RED” in exhibits F & G tendered in suit No. IK/21/ 67.
(b) Possession of the land
(c) Perpetual injunction restraining the plaintiffs, the agents, servants and privies from further trespassing the land in dispute.”
On the claims of the respondents as plaintiffs in ID/60/92, the trial court after receiving the evidence adduced before it held follows (page 766 of the record):-
“(1) The attempted ejection of the plaintiffs at the address listed on exhibits 21A and 21B was illegal, null and void.
(2) That until a final decision is made under a due proof law on the land noted as exhibit A in IK/21/67,the defendants should not try to eject the plaintiffs form that land.
(3) Subject to what the decision in the counter-claim of the defendants in this case will be, the defendants are here restrained not to tamper with the plaintiffs on the land in dispute that is exhibit A or on exhibit G purported to be larger area of land as claimed by the defendant in IK/21/67.
(4) Order to direct the assessment of damages done to plaintiffs houses is hereby dismissed.”
By the decision of Longe J. in (1) (2) and (3) above, respondents claims not to be ejected from the land in dispute by appellants in purported execution of the judgment in IK/21/67 succeeded. The land in dispute here included not only the 118.7 acres claimed in IK/21/67 but also the larger area of 596.7 acre the counter-claim of the appellants. Longe J. also considered counter-claim of the appellants at the trial and dismissed it in entirety for lack of evidence in support. The appellants then appealed to the Court of Appeal.
In the appeal filed by the appellants in the Court of Appeal (notice of Appeal on pp. 1183 – 1186 of the record) the appellant did not raise any ground complaining against the decision of Longe J. on the main claim of the respondents. They restricted their appeal on the dismissal of their own counter-claim and on issue estoppel.
From the above, it is abundantly clear that the only issue by the parties at the trial before Oshodi J. in IK/21/67 and which determined in his judgment was whether the respondents, as plaintiff were entitled to the declaration as owners of the land in dispute (118.7 acres) damages for trespass and injunction sought, all of which were dismissed. Oshodi J. did not say and no where can it be inferred from his judgment that the appellants were the owners of 118.7 acres or any larger piece of land. And the fact that a plaintiff claiming title to the land in dispute failed in proving the title and the court dismissed his claim and there was no counter-claim by defendant for the same, does not automatically confer title to the land on the defendant (see Kodilinye v. Odu (1935) 2 WACA 336; Udeabe v. Nwokafor (1963) 1 All NLR 417 (1963) 1 SCNLR 184; Amida v. Oshoboja (1984) 7 SC 68 at 83. In fact the appellants did not file any counter-claim in IK/21/67, and are bound by the decision of Oshodi J. which was finally affirmed by the Supreme Court in SC 184/89. Therefore the dismissal of the respondent’s claims in IK/21/67 did not automatically declare the appellants’ Osumba Ikotun family, the owners of the land in dispute.
In suit No. ID/60/92, there was no appeal against the dismissal of the claims by the respondents as plaintiffs, but there was an appeal by the appellants against the dismissal of their own counter-claim. The judgment of Longe J. on page 800 of the record, concluded thus:-
“In summary therefore the case of the plaintiffs for damages against the defendants for wrongful execution of the judgment in IK/21/67 is hereby dismissed. Similarly the case of the defendants/counter-claimants for possession of the 596 acres of land, which I have found in this case to be part of Igando land, is hereby dismissed. There is no order for forfeiture nor order of injunction against the plaintiffs. All these are not established.”
In their notice of appeal (pp. 1183 – 1186 of the record) the appellants filed 3 grounds of appeal; one on misdirection and 2 on error in law.
They were mainly on possession and issue estoppel, and only 2 issues for determination were raised thereon. The issues are issue of estoppel and a general one on weight of evidence. The Court of Appeal decided the issue estoppel in favour of the appellants but decided the general one on weight of evidence against them.
In the appeal to this court, the appellants filed 9 grounds of appeal but formulated only 2 issues which I have earlier set out in the judgment.
Having set out the historical antecedent of this case, I now wish to deal with issue estoppel as contained in issue 1. The learned counsel for the appellants has, in my view, correctly defined the effect of issue estoppel in a case when in paragraph 3.6 of his brief, he said:-
“The law is trite that once one or more issues have been raised in a cause of action and distinctly determined or resolved between the same parties in a court of competent jurisdiction, then neither party nor his privy or agent is allowed to relitigate that or those decided issues all over again in another action between the same parties or their privies on the same issues: Adone v. Ikebudu (2001) 14 NWLR (Pt.733) 385, 416 (G-H) Oshodi v. Eyifunmi (2000) 7 SC (Pt.11) 145, 157; (2000) 13 NWLR (Pt.684) 298.” (Italics mine)
See also Adebayo v. Babalola (1995) 7 NWLR (Pt.408) 383 at 403. According to the decision of this court in Fadiora & Anr v. Gbadebo & Anr (1978) 3 SC 219 at 228 -229, also referred to by learned counsel in the brief issue estoppel arises:-
“….Where an issue has earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies)…..”
The court further held that:-
“Issue estoppel applied whether the point involved in the earlier decision is one of fact or law or one of mixed fact and law.”
And the pre-conditions for its application are that:-
“(a) the same question must be for decision in both proceedings (which means that the question for decision in the current Suit must have been decided in the earlier proceedings).
(b) the decision relied upon to support the plea of issue estoppel must be final.
(c) the parties must be the same (which means that parties involved in both proceedings must be the same) per se or by their privies.”
From the arguments and submissions of the appellants’ counsel in their brief, issue one clearly deals with issue estoppel as defined above. Therefore for it to be resolved, it is necessary to ascertain, whether the conditions (a) – (c) above applied in this case:
Looking at suits Numbers IK/21/67 and ID/60/92, the parties in each case are the same. The respondents as plaintiffs in IK/21/67 claimed the title as absolute owners of the land in dispute which was for 118.7 acres in exhibit ‘A’ whereas the appellants, as defendants without raising any counter-claim submitted exhibits F & G covering 596 acres. The respondents in ID/60/92, asked the court to declare the attempts by the appellants to eject them from the land in dispute in execution of the judgment in IK/21/67 as illegal, null and void. They also claimed perpetual injunction to restrain the appellants from ejecting them there from. The appellants counter-claimed for forfeiture, possession and injunction. In the counter-claim the appellants claimed larger area of land covering 596 acres. Also while the decision in IK/21/67 was based on traditional evidence by reference to acts of recent years, the decision in ID/60/92 was based on traditional evidence and determination of boundary dispute to determine the ownership of the land in dispute. It is therefore very clear to me that although the parties in IK/21/67 are the same as in ID/60/92 i.e. in this appeal, the issues or points decided at the trial of the two cases were to a great extent different. One very important difference is that the land in dispute in IK/21/67 was only 118.7 acres whereas in ID/60/92, the land in dispute was 596 acres. I also agree with the Court of Appeal when it held on page 1785 of the record thus:-
“In the current case, the defendants were asking for forfeiture, possession and injunction. A claim for forfeiture postulates that the plaintiffs were the customary tenants of the defendants.
Inferentially therefore the defendants rested their current case on the title as tile plaintiffs landlords, a matter which was not pronounced upon in Suit No. IK/ 21/67.”
Also in IK/21/67, the parties did not join issue on the larger area of land. The respondents’ claim was on exhibit ‘A’ (118.7 acres) but in course of trial without filing any counter-claim the appellants testified on exhibits F & G (596.7 acres) and on that score, the respondents also put in issue exhibit ‘B’ (2120 acres). But the trial Judge Oshodi, J made no findings on exhibits ‘B’, ‘F’ or ‘G’ in his judgment, when he dismissed the respondents’ claims.
The learned appellants’ counsel submitted that the Court of Appeal failed to consider and give effect to the decision of this court in Ezewani v. Onwordi (1986) 4 NWLR (Pt.33) 27, (1986) 6 SC 402 and Ladega v. Durosimi (1978) 3 SC 91, dealing with claims on small and larger area of land in a land dispute. I have carefully examined these decisions and found that they are not applicable in this case because the parties did not in this case join issues with regard to title on a large area and the claim was made on a small area. It is in fact the opposite in this case; the claim was first on a small area (118.7 acres) in IK/21/67 and the question of larger area (596.7 acres) came later in ID/60/92. And the High Court, the Court of Appeal and the Supreme Court in IK/21/67 decided on the small area only which was contested at the trial. See for example page 974 of the record where the Supreme Court referred to the pleadings of the respondents and held that:-
“The plan referred thereto subsequently admitted in evidence and marked exhibit ‘A’ and clearly recognized by the learned trial Judge as the plan of the land in dispute.”
And finally held on page 975 that:- “Exhibit ‘A’ is not part, but the whole of the land in dispute.”
I therefore have no doubt in my mind that the conditions for the applicability of the principle or doctrine of issue estoppel are not fulfilled at all in the circumstances of this case. I have to resolve this issue against the appellants and I so do.
Issue (II)
This issue deals with whether the Court of Appeal was right in affirming the dismissal of the appellants counter-Claim by the trial High Court.
A counter-claim is by itself, a substantive action which must be proved to the satisfaction of the court for a counter-claimant to be entitled to judgment. The counter-claim of the appellants was for forfeiture, possession of the land in dispute and injunction restraining the respondents from further trespass on the land. The appellants called 8 witnesses to prove their counter-claim. The learned trial Judge Longe, J. reviewed the cases of the respondents as plaintiffs and that of the appellants as defendants and held (page 797 of the record):-
“As I have indicated in the course of this judgment the real issue between the parties in this particular case is not only whether the plaintiffs’ land is founded by Beku Onimoba and that it is called Igando or whether the land of the defendants is founded by Osumba and it is called Mope (area of palm trees) and situated in Ikotun, the more important issue is what is the extent of such respective area of settlement of their fore fathers. The parts (sic) in IK/21/67 asserted the area is about 2120 acres and that exhibit ‘A’ 118.7 acres is part of it. They failed in a bid to keep the defendants from that area. It is now the turn of the defendants to claim in this case that their own area of land extends and covers 596 acres of the 2120 acres which the plaintiffs are claiming. “The learned trial Judge, who saw and heard all the witnesses who gave evidence for the parties continued to say in his judgment thus:
“Having analysed the evidence adduced by the defendants both oral and documentary and compared it with that of the plaintiffs, I am convinced that the defendants have not shown such sufficient evidence to establish the fact that their forefathers land extends over the 596 acres being claimed in this case.”
On possession, the learned trial Judge found as follows:-
“The defendants have claimed possession of the area of land but I have found that they have not proved their title to the land and since possession is based on better title, it is impossible for me to agree with the defence counsel that the counter-claimants have successfully established their claim for possession to the 596 acres of land in exhibit 5B1 or 5B2 or exhibit ‘D’ in 1K/21/ 67.”
He concluded thus:-
“Having failed to prove their claim for possession, the other reliefs forfeiture and injunction cannot therefore stand.”
He then dismissed the counter-claim.
I have already stated early in this judgment while considering issue I that the fact that the claim for title by the respondents was dismissed in IK/21/67 does not automatically confirm the same title to the land in dispute to the appellants. The same situation repeats itself here unless the appellants were able to prove their counterclaim with sufficient evidence to entitle them to judgment, they cannot rely on the failure of the respondents to prove the title to the land claimed. See Adone v. lkebudu (2001) 14 NWLR (Pt.733) 385 at 408; Kodilinye v. Odu (1935) 2 WACA 336.
The Court of Appeal has in my view, carefully examined the evidence and the circumstances of this case and the observations of the learned trial Judge on the issues at stake between the parties and came to the conclusion that it would not interfere with his decision.
The Court of Appeal said on page 1794 of the record that the learned trial Judge has:-
“…demonstrated in the judgment appealed against a clear understanding of the issues involved in the dispute as manifested in the pleadings and the evidence led. There was also a patent solicitude on the part of the judgment to be fair in his reasoning to both parties such that I am satisfied that he took full advantage of the opportunity he had in seeing and hearing the witnesses testify. There is therefore no reason whatsoever for this court to interfere by disturbing the solemn findings of fact made by the trial judge.”
I have also examined the evidence adduced by the parties at the trial particularly that of the appellants on their counter-claim and am satisfied that the trial court has arrived at the correct decision. I entirely agree with the observations of the Court of Appeal quoted above.
There is also no doubt that this appeal is on concurrent findings of the two lower courts. This court by practice does not interfere with such findings except where special reasons are shown such as substantial error on the face of the record, decision not supported by evidence or reached on application of wrong principle of law or procedure or on findings which are perverse. See Omoborinola II v. Military Governor of Ondo State (1998) 14 NWLR (Pt.584) 89 at 107. The appellants have not shown any of these reasons in this appeal and I do not see any. I therefore see no reason to interfere with the decision of the Court of Appeal. Issue II is therefore answered in the affirmative. In the circumstances and for all what I said above, I find no merit in this appeal. I accordingly dismiss it with cost against the appellants in favour of the respondents which I assess at N10,000.00.
I affirm the decision of the Court of Appeal.
SC.378/2001