Taiye Oshoboja V. Alhaji Surakatu Amida & Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

F. OGBUAGU, J.S.C.

This is an appeal against the decision of the Court of Appeal, Lagos Division (hereinafter called “the court below”) delivered on 20th June, 2000 affirming the Judgment of the High Court of Lagos State Judicial Division presided over by Obadina, J. (as he then was) delivered on the 19th of December, 1996 which found in favour of the Respondents.

Dissatisfied with the said decision, the Appellants have further appealed to this Court initially on six (6) Grounds of Appeal but they later file an Amended Notice of Appeal with fourteen (14) Grounds of Appeal.

They have formulated ten issues for determination. They read as follows:

“(1) whether the lower courts (sic) were right in law in granting absolute title to the respondent ‘who had admitted that their title is burdened by the alleged customary tenancy of the appellants. Ground 7.

(2) Whether the respondents were entitled to a writ of possession when no title was given to them in 1984, and when they did not also claim possession and when the reliefs claimed by them were merely declaratory. Ground 8.

(3) Whether the principles of res judicta or issue estoppel were fulfilled in this case. Grounds 1,2, 10, 11 and 12.

(4) Whether the judgments of the lower courts were not wholly against the weight of admissible evidence. Ground 3.

(5) Whether miscarriage of justice has not been occasioned in this case. Ground 13

(6) Whether the acceptance of the evidence of witnesses in a previous proceeding that had been set aside by the Supreme Court was not contrary to the principles enunciated in Alade v. Aborisade (1960) I NSCC page 111. Ground 9.

(7) Whether the respondents’ action was not statute barred by virtue of section 12 of the Limitation Law of Lagos State. Ground 5.

(8) Was the tenancy agreement between Oshoboja family and Amida Opebiyi of Fagbile family not binding on Fagbile family when it was in respect of the same land. Ground 14.

(9) Whether or not Order 4 Rule 8 o{the Judgment enforcement Rules Lagos State, was/is not applicable to the plaintiff/respondents’ action. Ground 6.

(10) Whether or not the Oshoboja family could have appealed against the dismissal of AB/29/55 or could have brought a cross-action against the said Suit. Ground 4”.

On their part, the Respondents have formulated two (2) issues for determination, namely:

“1. Whether from the totality of the findings in this suit, and the Genesis of this case, as revealed in Exhibition A, B, C, C, D, E, F, g, H and H’, which are all certified true copies and orders of various court (sic) more particularly the Supreme Court decisions in 1966,1989 and 1992 in Suit Nos. AB/24/55 and AB/29/75, was the High court and the Court of Appeal right in setting aside the decision in Suit No. AB/29/55

2. Whether the Respondent (sic) herein are entitled to a declaration of title to the piece and parcel of land, the subject matter of this Appeal”

When this Appeal came up for hearing on the 29th September, 2009, Alhaja (Mrs.) Ayoola – the leading learned counsel for the Appellants, adopted their main and reply briefs he/she urged the Court to allow the appeal Fasino, Esq, – leading counsel for the Respondents, also adopted their Brief and he urged the court to dismiss the appeal. Thereafter, Judgment was reserved till to-day.

The facts of the case leading to this appeal as appear in the Records and in fact, as substantially stated in both Briefs of the parties, are not in dispute, I note that the two lower courts, also found as a fact, these facts in their respective well considered Judgment. They are as follows:

In the Suit in the trial High Court of Lagos State Suit No.ID/473181 which was remitted back for re-trial in that court by this Court in its Judgment of 17th July, 1992, the Plaintiffs/Respondents in their 4th Amended Statement of Claim, claimed as follows:

“1. An order setting aside the Judgment of the Honourable Justice John Taylor dated the 2nd day of June, 1958 in Suit No, AB/29/55, Tesi Opebiyi, for himself and as representative of the other members of the Fagbile Family land of Ijegun as Plaintiffs and Kelani Ogunleru and Shittu Oshoboja for themselves and as representatives of Koaki Family of ljegun as Defendants, as it will amount to a Fraud on the Plaintiff; and result in a denial of Justice to them to allow the said judgment to remain subsisting when the basis or consideration for its grant no longer exists and was found by the Supreme Court of Nigeria never to have existed by selling aside the judgment in Suit No. AB/24/55 between the same parties.

2. A declaration that the Plaintiffs are the owners in law and equity of the piece or parcel of land lying, situate and being at ljegun, Isheri-Oshun in Alimosho Local Government of Lagos State, particularly described as the area verged green in the composite plan No. JO25/93 dated 05 October, 1993 prepared by Olusola Ogunsanya registered surveyor, the subject-mailer of this case by virtue of customary ownership and traditional history.
3. A declaration that the Plaintiffs are the persons entitled to a statutory right of occupancy deemed to be granted by the Military Governor of Lagos State by virtue of the land Use Act, 1978”.

After hearing evidence, in his said Judgment, the learned trial Judge granted all the reliefs/claims of the Plaintiffs/Respondents. Aggrieved by the said Judgment, the Defendants/Respondents, appealed to the court below. In that court, each party, formulated five (5) issues for determination. In a unanimous decision, the court below as earlier stated in this Judgment, dismissed the appeal and affirmed the said Judgment of the trial court, hence this further or instant appeal.

I note that the two lower courts stated in their respective Judgment, the genesis of the dispute between the parties. For purposes of emphasis and for the avoidance of doubt, I will state or repeat them in this Judgment as has been done by the parties in their respective Brief of Argument.

In 1955, the Defendants/Appellants in Suit No. AB/24/55 sued the Plaintiffs/Respondents over the ownership and possession of the land. in dispute In Suit No. AB/29/55, the Plaintiffs/Respondents, sued the Defendants/Appellants for declaration of title over the same piece or parcel of land. Both suits came up for hearing before the same Judge. Counsel for the parties agreed with the approval of the trial Judge —

Taylor, J. (as he then was), that Suit No. AB/24/55 should be heard first being the first in time as a test case and that Suit No. AB/29/55 shall abide the result in AB/24/55. In other words, that the decision/Judgment in Suit NO. AB/24/55, shall be binding on the Plaintiffs/Respondents in respect of their Suit No. AB/24/55. Suit No.24/55 then proceeded to trial. Evidence was led by the parties. On 2nd June, 1958, Taylor J. (as he then was), gave judgment in favour of the Defendants/Appellants and simultaneously, dismissed the case of the Plaintiffs/Respondents. The Plaintiffs/Respondents, appealed to this Court in Suit No. AB/24/55.

They did not appeal against the dismissal of their own suit AB/29/55. In this Court, the Plaintiffs/Respondents appeal, was successful and the suit was sent back to the High Court for re-trial. The suit was re-tried by Beckley, J, and the Plaintiffs/Respondents, won and the said suit was dismissed on 6th November, 1981. The Defendants/Appellants, appealed to the Court of Appeal which allowed their appeal and set aside the judgment of Beckley. J. The Plaintiffs/Respondents again, appealed to this Court which set aside the Judgment of the Court of Appeal and restored the said Judgment of Beckley, J, This Court, noted that in view of the earlier agreement of the parties before Taylor, J, (as he then was) that the decision, was still subsisting. That being the case, the Plaintiffs/Respondents, therefore, instituted the action which is the subject-matter of the instant appeal seeking among other things, for the vacation of the said judgment of Taylor J, From the Records, at the trial, three (3) witnesses testified for the Plaintiffs/Respondents, while six (6) witnesses testified for the Defendants/Appellants, After hearing addresses from the learned counsel for the parties, the learned trial Judge, after thoroughly evaluating the evidence including the documentary evidence before him and considering the addresses of the learned counsel for the parties, found in favour of the Plaintiffs/Respondents and granted the reliefs they claimed, In other words, the learned trial Judge, resolved in favour of the Plaintiffs/Respondents, all the issues raised before him including the issue of estoppel or res judicatam.

As also stated in this Judgment, the court below, in a unanimous Judgment, dismissed the appeal of the Defendants/Appellants, In other words, there are concurrent findings of fact or Judgments, in favour of the Plaintiffs/Respondents by the two lower courts. The attitude of this Court in the circumstances, has been stated and re-stated in a line of decided authorities. In other words and as a matter of policy which is now firmly established, this Court will not disturb or interfere with the concurrent findings of two lower courts unless, in exceptional and very clear circumstances. These include inter alia, substantial error on the face of the Records, or the decision is not supported by evidence or the decision is reached on the application of wrong principles of law or procedure which had been violated or inadmissible evidence or no evidence at all, or in respect of findings which are perverse, unreasonable or unsound, See the previous and perhaps, recent judgments or cases of this Court:- Chikwendu v. Mbamali & anor, (1980) 3 & 4 S C. 11; Enang v. Adu (1981)11/12 S,C. 25 @ 42; (1981) 11 – 12 S.C. (Reprint) 17 @ 27; Nwodike & 2 Ors. v. Ibekwe & 2 ors , (1987) 4 NWLR (Pt 67) 718 @ 740; (1987) 12 S.C. 14

_ per Oputa, JSC who stated inter alia, that:

“An Appellant appealing to this Court and seeking to upset two concurrent findings in favour of the Respondent is thus faced with an uphill of considerable magnitude”;

Layinka & anor. v. Makinde & 5 ors (2002) 5 S.C. (Pt,1) 109 @ 113 per Belgore, JSC, (as he then was later CJN) citing several other cases therein; Ogbu v. Wokoma (2005) 14 NWLR (Pt.944) 118; (2005) 7 S.C. (Pt.11) 123 & 136; (2005) 7 SCNJ. 297 just to mention but a few.

I note that the Appellants, have not shown any of these reasons or circumstances in the instant appeal and I have not seen any except that the Appellants, are hell bent on a repetition and canvassing of the very issues which had been unequivocally and sufficiently, dealt with by the two lower courts This Court will not indulge them. It will not disturb or interfere.

Again, there is the settled or well known latin maxim “interest Reipublicae ut sit finis litium” – there must, in the public interest be an end to litigation. See the cases of Aro v, Fabolude (983) 2 SC 75 @ 83. (1983) NSCC Vol. 14 P. 43 @ 45: – per Aniagolu, JSC, where it is stated inter alia, thus:

“……. public policy demands that there should be an end to litigation once a court of competent jurisdiction has settled, by a final decision the matters in contention between the parties”

and Nwadike &. ors. V. Ibekwe (supra).

In the case of Prince Yaya Adigun & ors. V. Secretary, two Local Government (1999) 5 S.C. (Pt. 111) 1 @ 8, Achike, JSC, (of blessed memory) stated inter alia, as follows:

“Not only must the court not encourage prolongation of a dispute, it must also discourage prolongation of litigation”.

“. See also the cases of Nyambi & 6 0rs, v. Osadim & anor. (1997) 1 SCNJ 182 & 192 per Onu, JSC, citing the cases of Prince Adigun & 2 ors. v, Attorney-General of Oyo State & 18 ors. (No 2) (1987) 2 NWLR (Pt 55) 197 @ 231 which is also reported in (1987) 3 SCNJ 118 and Akanbi & 3 ors. v. Alao & Onor (1989) 3 NWLR (Pt 108) 116 @ 140; (1989) 5 S.C 1, Okukuie V. Ahwido (2001) 1 SCNJ 245 @ 282 citing the case of Chief Omokhafe V.Chief Esekhomo (1993) 8 NWLR (Pt 309) 580 @ ,67 just to mention but a few.

Of equal importance, is also the well established principle of law which applies both in civil and criminal cases that no one/man shall/should be or ought to be vexed twice on the same ground or for one and the same cause of action or the same issues. It is expressed in also the latin maxim of “nemo debet bis vexari, si constat curiae quod sit pro una et eadem causa”. See the cases of Aro v., Fabolude; Chief Omokhaefe v. Chief Esekhomo (both supra): Chief Adomba & 3 Ors. V. Odiese & 3 ors. (1990) 1 ,NWLR (Pt 125) 165 @ 178 1 SCNJ. 135 to mention but a few. It is also rooted on public policy.

I note from the Records and paragraph 1.5 pages 5 to 7 of the Respondents’ Brief firstly, that the suit leading to the instant appeal, is a re-trial of the same suit which the Respondents had filed in the same High Court of Lagos State which came up before Longe, J. Upon an application by the Appellants that it should be struck out because according to them, it disclosed no reasonable cause of action, Longe, J accordingly, struck out the suit/action. The Respondents appealed to the Court of Appeal which allowed the appeal and held that the Statement of Claim, disclosed a reasonable cause of action. Instead of remitting the case back to the High Court for re-trial, it purported to act under Section 16 of the Court of Appeal Act, 1976 and granted the relief sought by tile Respondent’s in their Statement of Claim and set aside the said Judgment of Taylor, J. (as he then was) in Suit AB/29/55. The Appellants, then appealed to this Court and submitted that the invocation or application of Section 16 of the said Act, was wrong in law in that as no Statement of Defence, was filed, the case was not ripe for hearing and that judgment could not have been delivered. This Court, sustained the argument and allowed the Appeal in part and remitted the case to the High Court for the Statement of Defence to be filed and evidence to be called by the parties. See the case of Taiye Oshoboja v. Alhaji Surakatu I. Amida & 2 Ors. (/992) 6 NWLR (Pt.250) 690; (1992) 7 SCNJ 317.

Secondly, almost the same or similar issues (some differently worded or couched by the parties in the two lower courts), were formulated and distinctly and thoroughly dealt with by the two lower court”. In the trial court, the present or instant Issue 3 of the Appellants in respect of Estoppel, was treated or dealt with by the learned trial Judge at pages 97 up to 103 of the Records. His Lordship, in resolving, the said issue, gave his reasons for finding in favour of the Respondents. In the court below, the same issue was thoroughly discussed or dealt with at pages 421 to 427 – per Oguntade, JCA (as he then was).

In respect of issue 4 of the Appellants which is substantially the same with Issue .1 of the Respondents both at the trial court at page 87 of the records and in this Court although differently worded, the learned trial Judge, dealt with the same again exhaustively, at pages 89 to 95, 99 to 102 of the Records His Lordship, found as a fact that both parties, and the identity of the land in dispute, were/are one and the same He further found as a fact that both parties, claimed ownership which involves possession. As a matter of fact, His Lordship discredited the 1st and 2nd defendant/Appellants’ witnesses and held that their evidence was contradictory and unsatisfactory and unreliable. The court below affirmed the Judgment of the trial court.

Issue 2 of the Appellants, in my respectful view, has bearing so to say/speak, substantially, with the said issues 4, 5, 6 and 8 of the Appellants and Issue 2 of the Respondents. I have noted that the two lower courts, found that both parties, claimed ownership of the land in dispute.

As regards Issue 7 of the appellants, the learned trial Judge at pages 108 and 109, found as a fact and held that Order 4 Rule 8 of the Judgment (Enforcement) Rules of Lagos State Cap. 12, Laws of Lagos State of Nigeria 1973, is not applicable to the case. The Appellants raised the same issue in their Issue 3 in the court below. After dealing with it at pages 427 and 428 of the Records, it held that the suit was/is not statute-barred. Significantly, the Respondents in the suit leading to this appeal, sought for an order of court to set aside, the said Judgment of Taylor, J. and not to enforce or execute the said Judgment in respect. of Suit AB/29/55. Period!

In respect of Issue 9 of the Appellants the same issue, which is at page 88 of the Records, was dealt with by the learned trial Judge at page 111; thereof and he held rightly in my view, that the Rule applies to enforcement of Judgments and deals with Judgments that are executory and not those for declarations. The court below, at pages 428 and 429 of the Records, held inter alia, as follows:

“There is nothing in the above Rule 18 (sic) Order 4 ‘which makes it applicable to proceedings brought to set aside a judgment. Rather the rule in my view only applies to processes brought for the execution of a judgment. I therefore agree with the reasoning of the lower court on the point”.

In respect of Issues 6 and 10 of the Appellants, in my respectful view, I hold that they are, non-issues having regard to all the circumstances of this case above discussed. This includes as I noted in this Judgment, that the land in dispute is one and the same – i.e. the identity is/was not in dispute. What is more, as noted by me earlier in this Judgment, the court below affirmed the said Judgment of the trial court. Specifically, as regards Issue 6, my quick answer is that the instant appeal, is not against the said Judgment of Beckley, J. – on 11th July, 1984 but against that of Obadina, J. (as he then was). The issue is therefore, completely misconceived.

Finally, I note that and as rightly stated in the Respondents’ Brief, there is no where either in the claim of the Respondents and I add or in the Records, where it was alleged or pleaded or admitted that the Respondent’s title;

“Is burdened by the alleged customary tenancy of the Appellants”

More importantly, this issue was not raised or canvassed by the Appellants in any of their issues for determination in the two lower courts I hold that they cannot now raise it They CANNOT now, regard or parade themselves, as “customary tenants” of the Respondents. This is because, right from 1955 and their said suit which was eventually dismissed by this Court, they had claimed “ownership” of the land in dispute. This Court, had in effect, upheld the declaration of title claimed by the Respondents. When the Appellants in their said suit AB/24/55 claimed for possession of the land in dispute, it was/is a concession or an admission, that they are not in possession of the land in dispute.

The Appellants perhaps, enjoy or have “gluttony” for unwarranted and prolonged litigation of a dispute or subject-matter that this Court had long pronounced effectively upon. In 1992, this case had lasted 35 years It is now about 54 years from when it started. No party is entitled to have such gluttony. It is regrettable and perhaps, unfortunate. But this has boomeranged. They have again, lost out so to say/speak. As a matter of fact, I find as a fact and hold, with the greatest respect to the learned counsel for the Appellants, that this appeal, is unmeritorious and is grossly misconceived It fails and it is accordingly dismissed. I hereby affirm the decision of the court below affirming the Judgment of the trial court.

Costs follow the event. I wish I could have increased the costs, but as it is, the Respondents are entitled to costs of N50,000.00 (Fifty thousand Naira) payable to them by the Appellants.

---

SC.54/2002