Taiwo Obisanya Seriki Vs Soyemi Solaru (1963)
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This is an appeal by the defendant against the judgement of the High Court of Western Nigeria, in which the plaintiff was granted a declaration to a piece of land edged pink in the plan attached to his Statement of Claim, and an injunction restraining the defendant from entering on the land.
In his Statement of Claim the plaintiff pleaded a grant made to his family some eighty years ago by the Ojowo Oshogbo Community, and continuous possession ever since. The defendant pleaded that he had inherited the land from his father, and further that the plaintiff was estopped from laying claim to the land by virtue of a decision given on appeal by the Resident and confirmed by the Governor on further appeal in a suit oridnating in the Ijebu Igbo Native Court, in which the defendant’s father was the plaintiff and Yesufu Ola was the defendant. The father of the plaintiff in the present suit had given evidence on behalf of Yesufu Ola and said that Yesufu Ola was his tenant on the land, and the submission made when the case came to be argued was that the plaintiff was bound by the decision in favour of the present defendant’s father either as a privy of Yesufu Ola’s or under the doctrine of standing-by. The plaintiff obtained leave to file a reply, in which he pleaded that on the 20th October, 1955, he himself had obtained judgement in the Native Court No.1 of Ijebu-Igbo granting him a declaration of title as against the defendant’s father.
The effect of the judgement relied on by the two parties was argued as a preliminary point and decided in favour of the plaintiff. In this Court it was submitted that a plaintiff cannot be allowed to claim a declaration of title if there is already a subsisting declaration in his favour, so that even on the plaintiff’s own showing he could not succeed in his present claim. A declaratory judgement is a discretionary remedy, and it is true that in the ordinary case the Courts will not grant a declaration in favour of someone who has already obtained one, but it has been held in this Court on a number of occasions that where the subsisting declaration was not tied to a plan of the land, and is not accepted by the defendant as binding, that may be a good reason for the Court’ s exercising its discretion in favour of granting a more effective declaration by reference to a plan.
The learned trial judge rightly held that an estoppel may be founded on the judgement of any competent court and rejected the submission that the decision of the Ijebu-Igbo Native Cowt in favow of the plaintiff, against which no appeal had been brought, was in any way inferior to the appellate decisions of the Resident and the Governor. He applied the decision of this Court in Makanjuola v. Khalil (1958) W.R.N.L.R. 82, to the effect that where there are conflicting judgements between parties or their privies the last in point of time creates an estoppel. If this test is applied, it appears that the decision of the Resident was given on the 7th April, 1955, and that of the Governor on the 7th October, 1955, whereas it was pleaded that the decision in favour of the plaintiff was given on the 20th October, 1955, and as production of the full record of the proceedings in that case was waived, the date of the judgement must be taken to have been that pleaded in the plaintiff’s reply. That concludes the matter in the plaintiff’s favour.
The defendant did put in evidence a document showing that in November, 1955, when the plaintiff applied by motion to the Ijebu-Igbo Native Court for an order enforcing the judgement in his favour, the decisions of the Resident and Governor were brought to the notice of the Ijebu-Igbo No.2 Court, which was not the Court that had heard the case in the first place, and that the Court not only refused the motion but stated “The ownership of the farmland in question awarded defendant by the Resident and Governor is confirmed”. The latter part of this decision was given without jurisdiction. The motion was the only matter before the Court, which had no power to review the decision of another Court, and the purported confirmation was ineffective to set aside the decision of the court which had tried the case. It is of no assistance to the defendant in this case. It may be added that if the Ijebu-Igbo No. 1 Court gave its decision in ignorance of the decision of the Resident and the Governor, the defendant has only himself to blame.
The appeal is dismissed, but as the formal order embodying the judgement of the High Court does not identify the land in question, it will be varied so as to read-“There will be a declaration that the plaintiff is entitled as owner to the land claimed, which is depicted and edged pink in the plan numbered LL/ 79 attached to the Statement of Claim, as against the defendant” and so forth. The respondent should have costs of the appeal which are assessed at 30 guineas.
Other Citation: (1963) LCN/1019(SC)