Oba Afolayan Abioye V. Oba Felix Abidoye (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the Osun State High Court delivered on the 6th day of March, 2007 by Aderibigbe J. dismissing the claims of the appellants on the ground that the claims were caught by the principle of estoppel per res judicata.

The appellants who were plaintiffs in the lower court sued the respondents/defendants claiming forfeiture of the customary tenancy of the defendants in respect of the land in dispute, recovery of possession and injunction. In their amended statement of claim, the plaintiffs averred that the land in dispute was granted to the defendants for farming purposes only and on payment of Ishakole. The defendants not only defaulted in paying the Ishakole but started to challenge the ownership of the land by the plaintiffs by building houses, allocating plots for building without the knowledge or consent of the plaintiffs. When all entreaties to the defendants to desist from their misconduct failed, the plaintiffs filed an action against the defendants in suit no HOS/2/86.

The suit was determined on 30/6/89 with the court affirming the title of the plaintiffs as customary owners entitled to statutory right of occupancy over the disputed land. The plaintiffs averred that in spite of the judgment the defendants continued to build houses on the land and continued to allocate parcels of it to people for building and other purposes contrary to the terms of their customary grant which was for farming purposes only and despite vehement opposition by the plaintiffs.

The plaintiffs averred that the defendants have by their failure to pay Ishakole, and denial of the title of their overlord by continuing to build houses on the land incurred forfeiture of their customary tenancy. The plaintiffs pleaded the judgments in suits nos HOS/32/86, CA/I/16/90 and SC 127/1996.

In their amended statement of defence, the defendants averred that in suit no. HOS/32/86 in respect of the same land in dispute the plaintiffs had claimed title to statutory right of occupancy, N5,000.00 general damages for trespass and injunction restraining the defendants from committing acts of trespass on the land. The court granted the plaintiffs title but refused their claim for damages and injunction. The defendants averred that the land in dispute has always been in their possession and that there are about 500 houses in the land, most of them ancient buildings and compounds erected over hundred years ago. The defendants averred that while admitting that the judgment of the High court in suit no. HOS/32/86 has been affirmed by the Court of Appeal and the Supreme Court, they would at the trial of the suit contend that the suit as presently constituted is res judicata and therefore an abuse of court process. They counterclaimed for relief against forfeiture, recovery of possession and injunction.

The plaintiffs in their amended reply to the amended statement of defence averred that the whole land occupied by the defendants originally belonged to the plaintiffs and that part of land already built up by the defendants was left for them; that the part now in dispute well known to the defendants was not built up but the defendants ignored the protests of the plaintiffs, stopped paying Ishakole and continued erecting buildings on the land even in defiance of a court injunction obtained against them on 11/3/91 during the course of the proceedings in suit no HOS/32/86.

The plaintiffs averred that despite the fact that the defendant’s appeals to the Supreme Court and Court of Appeal were dismissed and plaintiff’s ownership of the land confirmed with the defendants also confirmed as customary tenants of the plaintiffs; the defendants still continued to deny the title of the plaintiffs, refused to pay Ishakole and continued to build on the land. The plaintiffs averred that they would contend at the trial that the defendants by their conduct have incurred forfeiture of their customary tenancy and that their tenancy should be forfeited on the land in dispute.

The defendants filed a motion on notice praying the court for an order dismissing the suit for being caught by the principle of res judicata. Their motion was supported by a 5 paragraph affidavit in which they deposed inter alia that the plaintiffs are relying on substantially the same facts as in suit no HOS/32/86 and that their claims in the present suit ought to have been made in that suit; that the plaintiffs are estopped from re-litigating against the defendants in respect of the same subject matter as in HOS/32/86.

The plaintiffs filed a counter-affidavit in which they deposed inter alia that the issues and reliefs claimed in the suit are not the same as those granted in HOS/32/86.

After hearing the parties on the motion, the learned trial judge in a reserved ruling dismissed the plaintiff’s action for want of jurisdiction holding that the suit is caught by the doctrine of estoppel per rem judicatam and that the plaintiffs are estopped from bringing a fresh action for forfeiture, recovery of possession and injunction.

The plaintiffs being dissatisfied with the ruling appealed to this court by notice of appeal containing six grounds of appeal. In their brief of argument settled by M. A. Laogun Esq. three issues were formulated from the six grounds of appeal. The issues are:

1. Whether the appellant’s suit as constituted is caught by the operation of the doctrine of estoppel per rem judicatam.
2. Whether the plaintiffs/appellants are estopped from bringing a fresh action for forfeiture, recovery of possession and ancillary relief of injunction claimed in the present suit.
3. Whether the plaintiffs/appellants suit as constituted is such where there should be an end to litigation and should be dismissed and not struck out.

In the defendant/respondent’s brief of argument settled by M. O. Okediya Esq. the following two issues were formulated:

1. Whether the learned trial judge was right in holding that the plaintiffs/appellants action is caught by the operation of the doctrine of estoppel per res judicata
2. Whether the proper order to make where a suit is caught by the principle of res judicata is an order of dismissal.

The respondents’ two issues cover all the grounds of appeal. I shall adopt those two issues in the determination of this appeal.