Samuel Adenle V. Micheal Oyegbade (1964)
LawGlobal-Hub Lead Judgment Report
ADEOLA JSC
This is an appeal against the dismissal of the plaintiff/appellant’s claim in the High Court of Ibadan in Western Nigeria. The writ originally was for declaration of title to land at Oshogbo, which the plaintiff claimed is stool land; £200 damages for trespass and an injunction to restrain the defendants and their servants from further acts of trespass. After pleadings had been filed, the plaintiff abandoned the last two claims and the case was fought mainly on the issue of declaration of title.
On the abandonment of the two claims, the second defendant admitted the plaintiff’s claim and virtually withdrew from the case. The contest therefore was between the plaintiff and the first defendant. Earlier, and indeed on the 8th July, 1960 and the 19th September, 1961 respectively, the plaintiff with the leave of the Court amended his writ and statement of claim by claiming the land as belonging to “the Laro family of Oshogbo” and that he sued in a representative capacity “for himself and on behalf of Laro family.
The first defendant also amended his statement of defence by an addition to his defence, pleading estoppel per rem judicatam, and specifically relying on the decision in a case in the same court 1/187/57 entitled Lawani Sabilesu v. Michael Oyegbade. Proceedings and the judgment in the case were put in evidence and marked Exhibit E. In that case the claim was dismissed on the evidence of the plaintiff himself that he and his brothers had parted with the possession of the land in dispute three months before the act of trespass complained of. In the present case the plaintiff/appellant in the Court below gave evidence in support of his claim for declaration of title and called witnesses. The first defendant, who was the only defendant, gave evidence but called no witnesses. His evidence was formal, he and his Counsel relied solely on the plea of res judicata and the judgment Exh. E.
As this exhibit is vital to the defendant/respondent’s case, it should be stated that the land litigated upon in that suit (Exh. E) is the same land now in dispute. The present defendant/respondent was the defendant in the case (Exh. E) and the plaintiff was the brother of the present appellant who sued for himself and five others all claiming the land in their personal capacity. The appellant it is clear was not a party to that suit.
After considering the case put forward by each side, the learned trial Judge in his judgment said:-
“As the pleadings and evidence in this case stand, I think that the plea of res judicata is important for consideration, before the facts are gone into. If the plea succeeds, it will be a waste of time to consider the case further, but if it fails, then of course the facts will have to be gone into in order to settle the issue between the parties.”
Then the learned Judge proceeded to find the following facts:-
“(i) The land in dispute in this case is the same as the one in dispute in suit No. 1/187/57. 1 refer particularly to Exhibits C & D and the evidence of the Surveyor, Ogunbiyi.
(ii) The present plaintiff knew of suit No. I/187/57 and the personal claim which was being made to the land in dispute by the first defendant. In fact, he instructed the surveyor to make the plan Exhibit D used in that case.
(iii) The plaintiffs in Suit No. 1/187/57 claimed the land in dispute to be stool property ( Vide para. 5 of Exhibit F and the evidence in Exhibit E), which is the same claim as the plaintiff made originally in this case (vide his writ and para. 5 of his original statement of claim).
(iv) Whether the claims in the two cases be in personal capacities as in suit No. 1/187/57 or for the family as in the present case it is clear that the root of title is through the family to Laro.
(v) The fast defendant has always claimed to be the owner of the land in dispute as shown by para. 8 of his statement of defence and the admission of the plaintiff himself.
(vi) In suit No. 1/187/57, the plaintiffs who were certainly important members of the Laro family failed in their claim for title to the land in dispute as Exhibit E shows beyond doubt.”
He then continued:-
“In the face of these established facts, what can one deduce. In my judgment, it is plain that the plaintiff in this case must be considered a party to the proceedings in suit No. 1/187/57, and he clearly stood by and allowed his battle to be fought for him. It is not only he, but the other members of the Laro family as well took the same indifferent attitude; it will be inconceivable that five important members of the family would be engaged in a law-suit which lasted from 1957-59, and in which the present plaintiff who is the Head of their family showed such active interest as engaging a surveyor to survey the land in dispute will not know of it! !”
Finally he said:-
“In my judgment, the plaintiff’s case is caught by the plea of res judicata, because he stood by and allowed his battle to be fought for him.”
It is clear to our mind, that the learned Judge’s application of the doctrine of standing by as laid down in Nana Ofori Atta II, etc. and ano. v. Nana Bonsra to this case is incorrect, and we feel unable to agree with his decision.
The appellant, it is to be observed, as soon as he became aware that the parties in the former action (I/187/57) were in court, brought the present action and sued the two parties in the former case as defendants. In other words the present action was instituted whilst the former action (Exh. E) was still pending and not tried. Can it, in the circumstances, be said that the appellant was standing by merely because he felt he could not be in the same harness with the plaintiff in the former action (Exh. E)? We think not. We are clearly of the view that the appellant was entitled to fight his own case by bringing his own action, and it would not have been in his own interest to join with the plaintiff in the former action when both he and that plaintiff were both asking for declaration of title to the same land.
His proper course, in our view, was to have brought an action against the two parties in the former action, which he did.
We are therefore unable to agree with the learned Judge that the extended doctrine of res judicata of standing by when a man becomes aware of an action, can be applied where during the pendency of the action, he brought his own action, before judgment was given in the former or pending action.
This appeal will therefore be allowed. Judgment of the learned trial Judge in the court below is hereby set aside, and as the issue between the parties has not been decided on the facts before the Court, it is ordered that the case be remitted to the Court below for the Judge to give his judgment on the facts before him. The appellant is entitled to the costs of this appeal which are assessed at 38 guineas. Costs in the Court below to be assessed by the Judge after the determination of the case.
Other Citation: (1964) LCN/1180(SC)
