IN THE SUPREME COURT OF NIGERIA

On Friday, the 17th day of March 1978

SC. 198/76

Between

WILLIAMLADEGA & ORS. ............................ APPELLANT

And

SHITTUDUROSIMI & ORS. ............................ RESPONDENT

The indorsement on the writ of summons filed by the plaintiffs (the Alashe Chieftaincy family) against the defendants (the Ojuwoye Community) in suit No. IK/118/67 in Ikeja High Court is for declaration of title and possession of the said land.

In the pleadings filed, pursuant to the order of the court, both parties claimed to the land in dispute, by settlement. The defendants however averred that, as a result of decisions in previous litigation between the parties, the defendants were estopped from instituting this action.

Thereupon, learned Counsel representing both parties agreed that the issue of estoppel or res judicata, as it was severally referred to by the parties, and which formed part of the pleadings of the defendants, be dealt within limine.

The defendants relied upon the decision of Somolu J. (as he then was), in suits No. 1/291/58 and No. HK/108/61, consolidated, for their contention that the plaintiffs were estopped from bringing the present action. In suit No 1/291/58, the present defendants (as plaintiffs) had sought against the present plaintiffs (then defendants) a declaration of title while in suit No. HK/108/61 the action of the present defendants (as plaintiff's in that suit) was against one Lasisi Salu. The learned Counsel who represented the defendant in suit No. HK/108/61, and who incidentally is the counsel for the present plaintiffs/appellants in this appeal, indicated that as the land in suit No. 1/108/61 was "included in the Larger area covered by suit No 1/291/58", he was willing to be bound by the results of suit No 1/291/58. The learned Judge (Somolu J) gave judgment in favour of the present defendants (then plaintiff). The defendants in the consolidated case the Alashe family, plaintiffs in the instant case appealed against the decision of Somolu J. to the Supreme Court, the appeal fails.

In the instant case, and after due consideration of the submission of learned Counsel on these facts, that is, the Judgment of Somolu J., and the Supreme Court and also their several submissions on the law, the learned trial Judge held that the plaintiffs in the instant case having been declared to be the Customary tenants of the present defendants in suits 1/291/58 and HK/108/61 (consolidated), they cannot now at the present stage claim to be the over lords of the present defendants.

On appeal to the Supreme Court, the learned Counsel for the plaintiffs/appellants, submitted that the decision of the learned trial Judge did a serious violence to the principles of res Judicata. He contended that the Judgment of Somolu J. dealt with 12 acres of land and the finding of fact made by that Judge beyond the twelve acres was a finding on an issue that was not before him.

The learned Counsel for the defendants/respondents on the other hand contended that Somolu J infect decided the issues before him. The issue of the larger area was placed before Somolu J. for determination, and he struck out the action and not dismissed it, as what was raised before him was a matter of issue estoppel as distinct from res Judicata.

The Supreme Court held that:

1.      The claim of the plaintiffs as regards title to land the plan of which is smaller to one tendered by them before Somolu J. and which they have also tendered in the instant case and that, as rightly pointed by the learned trial Judge in this case, has been decided in the consolidated cases before Somolu. J. and this constitutes an issue estoppel.

2.      A party is precluded from contesting the contrary of any precise point which has once been distinctly put in issue and with certainty determined and the plaintiffs cannot relitigate the issue.

3.      The learned trial Judge is dismissing the claim would have been right, in that course if this had been a matter of res Judicata where, however, what is raised is an issue estoppel, than it is only in regard to that issue, that has been raised that the parties to an action, shall be bound and the proper course to take would be one of striking out all the paragraphs in the pleadings raising that issue.

Appeal dismissed.

Mr Adesina for the Appellants.

Mr H. Lardner for the Respondents.

Cases referred to:

1.      Carl-Zeisa-Stiftung Vs. Hayner etc. (No.2)(1966)2 All NR.536 at 565.

2.      Cadana and Dominion Sugar Coy. Ltd Vs. Canadian National (West Indies) Steamships Ltd. (1947)AC 46 at 56.

3.      Heystead Vs. Commissioner of Taxation (1926)Ac 155 at 165-166.

Eso, J.S.C-The indorsement on the writ of summons filed by the plaintiffs (the Alashe Chieftaincy Family) against the defendants (the Ojuwoye Community) in Suit No. IK/118/67 in the Ikeja High Court is for-

(a)     a declaration of title under Yoruba Native Law and Custom to all that piece or parcel of land at Mushin described in a plan to be filed in this suit;

(b)     a declaration that the Defendants have forfeited all rights to the said land under Yoruba Native Law and Custom; and

(c)     possession of the said land."

In the pleadings filed, pursuant to the order of the court, both parties claimed title to the land in dispute, by settlement. The defendants however averred that, as a result of decisions in previous litigation between the parties, the defendants were estopped from instituting this action. The relevant paragraphs of the statement of defence are as follows-

"16. Notwithstanding the several warnings of the Community who are the overlords of the plaintiffs, the plaintiffs have persisted in their conduct and challenged the title of the Ojuwoye Community.

17.     The defendants were therefore obliged to institute Suit 1/291/58: Kasali Akinliyi and ors. etc. Vs. William Ladega and ors. etc. seeking a declaration of title and of forfeiture and possession of the land.

18.     Either side put the title claimed by it in issue.

19.     Judgment was on the 12th April 1966 entered in favour of the plaintiffs in the suit, the Ojuwoye Community, against the defendant, the Ifaudu Alashe Family.

20.     The defendants will reply on this judgment as estopping the plaintiffs from instituting the present action as the judgment covered the land in dispute in this case."

On 17th November, 1971, the plaintiffs filed a motion, seeking an order-

"1.     to restrain the defendants from further interfering with the peaceable possession by the plaintiffs of all the properties outside the 12 acres indicated in the plan attached to this application;

2.      to restrain the defendants from alienating any portion of land outside the area indicated as 12 acres in the said plan;

3.      to restrain the defendants from committing further acts of injury to the possession by the plaintiffs of all the area of land the subject matter of this action."

Thereupon, learned Counsel representing both parties agreed that the issue of estoppel or res judicate, as it was severally referred to by the parties, and which formed part of the pleadings of the defendants, be dealt with in limine.

The defendants replied upon the decision of Somolu J., (as he then was), in Suits No. 1/291/58 and No. HK/108/61, consolidated, for their contention that the plaintiffs were estopped from bringing the present action. In Suit No. 1/291/58, the present defendants (as plaintiffs) had sought against the present plaintiffs (then defendants)-

"1.     a declaration of title under Yoruba Native Law and Custom to all that piece or parcel of land at Mushin in a plan whereof will be filed in this suit.

2.      a declaration that the defendants have forfeited all rights possessed by them under Yoruba Native Law and Custom to the said land."

while in Suit No. HK.108/61 the action of the present defendants (as plaintiffs in that suit) was against one Lasisi Salu claiming-

"(i) a declaration that the plaintiffs are the absolute owners under native law and custom of all that piece or parcel of land situate lying and being at Mushin within the jurisdiction of this Honourable Court a plan of which land will be filed in this cause;

(ii) £25 being general damages for trespass to the said land;

(iii) an injunction restraining the defendants his servants and/or agents from further trespassing in the said land; and

(iv) possession of the said land."

The two suits were consolidated and Mr Adesina of counsel, who represented the defendant in Suit No. HK.108/61, and, who incidentally is the counsel for the present plaintiffs/appellants in this appeal, indicated that as the land in Suit No. 1/108/61 was "included in the larger area covered by Suit No. 1/291/58," he was willing to be bound by the results of Suit 1/291/58. And so, in their amended statement of claim in Suit No. 1/291/58, the present defendants (as plaintiffs in that case) averred-

(Exh. D)-

"1.     The land in dispute is all that piece or parcel of land shown and edged in RED on the plan attached hereto.

2.      The said land forms portion of a vast area of land in the Mushin District.

3.      The said vast area of land was first settled upon by one Odu Abusi and one Aileru about 300 years ago.

6.      The descendants of Odu Abusi and of Aileru together with their domestics are now referred to as the Ojuwoye Community..."

While the defendants in that case (that is, the present plaintiffs) admitted paragraphs 1 and 2 of the statement of claim (supra), they denied paragraph 3 which dealt with the claim of the plaintiffs in the case (that is, the present defendants) to have been the original settlers on the land and also put the present defendants to the strict proof of paragraph 6. They then proceeded to claim that "their family - the Alashe Family - are the original owners of the land in dispute by right of settlement."

These then were the issues before Somolu J. upon which he pronounced as follows-

"In considering my judgment in this case, I wish to state frankly that I do not accept the limitations placed by learned Counsel for the defendants on the issues to be resolved between the parties to the lands in dispute only and that is because other issues were canvassed throughout the case on both sides and evidence was fully led on them. That was why it took such a long time to conclude the hearing, and I am satisfied that all parties to the case realised that more issues were involved than the one relating to the land in dispute in the first case or that in the second. In my view since many issues became involved in the case and full evidence to resolve them was allowed to be called on both sides, it will be in the interest of public policy to resolve all the issues raised once and for all, and not leave them for future litigation or litigations. Interest rei publicae ut sit finis litium."

The learned Judge (Somolu J.) concluded-

"that the land on the rightside of the old Otta foot path mentioned in Exhibit "B" was never the private property of Ifadu Alashe, and that it was part of the communal land at Ojuwoye."

The defendants in the consolidated case - the Alashe Family, plaintiffs in the instant case - appealed against the decision of Somolu J. to the Supreme Court, which court held-

"In view of the overwhelming evidence given in support of the plaintiffs' claim which the learned trail Judge accepted, it is sufficient to say that the complaint about the judgment being against the weight of evidence does not merit any serious consideration. The appeal against the judgment for declaration of title therefore fails.

In the course of the argument regarding the order for forfeiture we were referred to a number of authorities in which the courts have granted relief against forfeiture. After a perusal of all these cases, it appears to us that any decision as to whether to grant relief or not will depend on credible evidence and on the circumstances of each case which invariably turn either on the attitude of the offending customary tenant or on the nature and length of the act on which the claim for forfeiture is based or on both.

On the complaint about the order for both forfeiture and possession, we agree with the contention of Mr Lardner for the plaintiffs/respondents, that, notwithstanding the clear averment regarding the liability of a customary tenant for forfeiture in paragraph 7 of the statement of claim, the defendant and his people did not ask in their pleading, even in the alternative, for relief against forfeiture. They have decided on a straightful fight, basing all on title or nothings they must now be prepared to take the consequences. Moreover, judging by the features on the plans of the disputed land (Exhibit "H" and "4") they do not appear to be living on the land in dispute. They have also admitted that they have other lands of their own. Finally, even while the case was still pending in court, they continued to lease or sell portions of the land in dispute. Bearing all these in mind, we will do no more than repeat the observation of the learned trial Judge that there are no extenuating circumstances which would justify the grant of any relief from forfeiture. The appeal against the order for forfeiture and for possession therefore fails."

These were the facts brought before Beckley J., in the instant case, and after due consideration of the submissions of learned Counsel on these facts - that is, the judgments of Somolu J., and the Supreme Court aforesaid, and also their several submissions on the law, the learned trial Judge held-

"The findings of the learned Judge in 1/291/58 consolidated with HK/108/61 are very comprehensive and cover the entire land at Ojuwoye as well as relationship between the plaintiffs and the defendants as being one of the customary tenants and overlord. The findings of the learned judge on those issues were not appealed against and the appeal on other issues was dismissed. It is my considered view that issues which are now being sought for a fresh determination by the plaintiffs according to their pleadings have already been finally laid to rest in 1/291/58 consolidated with HK/108/61."

The plaintiffs in the instant case, the learned judge went on, having been declared to be the customary tenants of the present defendants in Suits 1/291/58 and HK/108/61 (consolidated), "they cannot now at the present stage claim to be the overlords of the present defendants." He then concluded by dismissing the plaintiffs' claim.

It is against this decision, the plaintiffs have appealed to this Court, replying on five grounds of appeal, the substance of which is that the learned Judge erred in law in making a finding that the decision of Somolu J. in Suits No. 1/291/58 and KH/108/58 (consolidated) constituted an estoppel against the plaintiffs.

Mr Adesina, learned Counsel for the plaintiffs/appellants, submitted that the decision of the learned trial Judge did a serious violence to the principles of res judicata. He contended that the judgment of Somolu J. dealt with 12 acres of land and the finding of fact made by that Judge beyond the twelve acres was a finding on an issue that was not before him.

Mr Lardner, learned Counsel for the respondents, contended that Somolu J. in fact decided the issues before him. The issue of the larger area was placed before Somolu J. for determination and he dealt with it.

He only gave judgment for declaration for 12 acres as being the claim before him. Learned Counsel conceded though, that Beckley J., in the court below, should only have struck out the action and not dismissed it, as what was raised before him was a matter of issue estoppel as distinct from res judicata.

It appears to us that though paragraph 30 of the statement of defence raises an issue of res judicata, the learned Counsel for the defendant in this case, in the court below, concentrated his argument on the plea of estoppel, throughout his submission before the learned Judge. Mr Alaka, learned Counsel for the plaintiffs, in his address before the Judge, also dealt with the plea of issue estoppel apart from his submissions on res judicata.

We are satisfied that both learned Counsel directed their attention to the plea of issue estoppel and there is no doubt that the learned Judge also had that plea present in his mind when he gave his ruling, for he said-

"But in the case of issue estoppel, where one party is barred by issue estoppel from raising an issue which he nevertheless sought to raise, and his opponent seeks to have the case struck out or dismissed on the ground of estoppel, the court has a discretion whether or not to have the case struck out or dismissed. The court will, in my view do so where the issue estoppel raised is so fundamental as to go to the root of the whole case..."

The Judge however concluded on the note of the issue being one of res judicata, saying-"The plea of res judicata succeeds and the plaintiffs' claim will be dismissed in its entirety."

For a proper determination of the issues raised by learned Counsel in this appeal, it is necessary to examine the proceedings in the consolidated cases before Somolu J. (hereinafter, for purpose of clarity referred to as the consolidated cases) and the action of the plaintiffs in the present case. We have already set out, (supra), the relevant portions of the pleadings in the consolidated cases and the instant case.

The plaintiffs in the consolidated cases (that is, the present defendants), tendered a plan, Exh. J, as the plan of the larger area they referred to in paragraph 2 of their statement of claim. That plan is Exhibit C in the instant case. The defendants in the consolidated cases (that is plaintiffs in this case) admitting there is a "larger area" tendered exhibit 22 as the plan of that "larger area" and that plan is exhibit "H" in the instant case.