Peter Alabi & Ors V. Kehinde Alabi (a.k.a. Actor) & Ors (2016)

LawGlobal-Hub Lead Judgment Report

MOHAMMED AMBI-USI DANJUMA, J.C.A. 

This is an appeal against the judgment of the High Court of Ondo State, Akure Judicial Division by Hon. Justice T. O. Osoba delivered on 3/7/2013 dismissing the claimant/appellants’ case for want of jurisdiction on the ground of abuse of Court process.

The appellants’ claims at the lower Court were for the following:
”1. A declaration that the defendants being great grand children of Otiriki Ugbebor cannot alienate either by sale or in any form or manner any portion of the Otiriki Ugbebor family land situate and being along Idanre Road, Idiita, Adefure, Akure covered by layout No. AK/AUPO/L/664 without the consent of the plaintiffs who are the head and principal members of the Otiriki Ugbebor family.
?2. An Order setting aside as null and void all sales, or alienation of any portion of the Otiriki family land situate and being along Idanre Road, Idiita, Adofure, Akure covered by the layout No. AK/AUPO/L/664 in whatever form or manner by the defendants having done so without the consent and authority of the head and principal members of Otiriki Ugbebor

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family.
3. An Order directing immediate partitioning of the Otiriki Ugbebor family land in compliance with the judgment of the Customary Court in suit No. AK/CC11/343/2006 delivered on 13/12/2008.”

RELEVANT FACTS
The plaintiff/appellants commenced this suit by writ of summons and statement of claim filed on 11/12/2012. The respondents filed a joint statement of defence and a motion on notice seeking dismissal of the suit on the principle of estoppel per rem judicata in that the matter had been determined in 2008 in Suit No. AK/CC11/343/2006 in favour of the respondent’s father. The application was taken and ruling delivered dismissing the suit for want of jurisdiction.

Dissatisfied with the ruling, the appellant filed a notice of appeal dated and filed on 12/7/2013 containing one ground of appeal. In compliance with the rules of this Court, parties filed their respective briefs.

Appellants brief was settled by Temitope Adedipe, Esq. who formulated one issue for determination of this appeal thus:
“Whether the lower Court was right in declining jurisdiction on the ground that Suit No. AK/410/2012 is the same as Suit No.

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AK/CC11/343/2006.”

The respondent’s brief was settled by A. O. Olademehin, Esq. dated 28/4/2015 and filed 29/4/2015 but deemed properly filed and served on 7/3/2016. He adopted the sole issue raised by the appellants’ counsel.

At the hearing of this appeal on 7/3/2016, counsel adopted their respective brief as their arguments in this appeal.

ARGUMENT
Addressing this issue, learned counsel for the appellant pointed out that the crux of the respondents application which the lower Court upheld is that parties had once litigated on the subject matter before the Customary Court in Suit No. AK/CC11/343/2006 as shown by the enrolment of judgment exhibited to the said application. Counsel submitted that for estopel per rem judicata to be applicable in the case, the following must be shown, thus:
1. The parties are the same in both the previous and present proceedings.
2. The claim or issues in dispute in both cases must be the same.
3. The res or the subject matter of the litigation in both cases must be the same.
4. The decision relied upon to support the plea of estopel per rem judicata must be valid, final and

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