In The Supreme Court of Nigeria

On Friday, the 20th day of April 2007


S.C. 15/2002


Before Their Lordships


Aloysius Iyorgyer  Katsina-Alu


Justice, Supreme Court

Niki Tobi


Justice, Supreme Court

Ibrahim Tanko Muhammad


Justice, Supreme Court

Pius Olayiwola Aderemi


Justice, Supreme Court

Christopher Mitchell Chukwuma-Eneh


Justice, Supreme Court






Mojeed Suara Yusuf







Madam Idiatu Adegoke

Sulaiman Adeagbo Odetunde







Judgment of the Court

Delivered by

Pius Olayiwola Aderemi. J.S.C



The appeal is against the judgment of Court of Appeal, sitting in Ibadan, in CA/I/72/89: Alhaji Suara Yusuf and Lasisi Kode delivered on Thursday 7th June 2003. The case originated from the High Court of Justice, Ibadan, Oyo State where in Suit No.I/683/84 Tiamiyu Adeagbo and Alhaji Lamidi Atanda (deceased for themselves and on behalf of Odetunde Family) claimed against Alhaji Suara Yusuf as follows: -


"(1)      a declaration to a statutory or customary right of occupancy to all that piece or parcel of land verged RED on Flan No. APAT/OY/06/1986 (Excluding the area verged green);


(2)        the plaintiffs also claim N 10,000.00 damages against the defendant for trespass committed by the defendant in respect of the said parcel of land sometimes in December 1984 which trespass is still continuing;


(3)        the plaintiffs also claim perpetual injunction restraining the defendant, his servants, agents and privies from committing further acts of trespass on the land in dispute".


Both parties filed, in the trial court registry, their respective pleadings and exchanged them; the pleadings of the plaintiffs (hereinafter referred to as the respondents) being the statement of claim dated 1st February, 1986 accompanied by a dispute survey plan No. APAT/OY/06/1986 dated 9th January 1986 wherein the area in disputed was verged "RED" as pleaded in paragraph 2 thereof; while that of the defendant (hereinafter referred to as appellant) is the statement of defence dated and filed on   18th July, 1986. The case thereafter proceeded to trial and at the conclusion of the evidence of the parties and the addresses of counsel for both parties, the trial judge, in a considered judgment delivered on the 30th of June, 1987 found for the plaintiffs/respondents and accordingly granted them the three reliefs sought; for the second relief, N3, 000.00 was awarded in their favour as damages for the trespass said to have been committed.


Dissatisfied with the said judgment, the appellant lodged an appeal against it to the court below. While the appeal was still pending in the court below, the respondents sought to amend paragraph 3 of their pleadings to   reflect a plea of Original Settlement and not Grant.  The prayer was refused by the court below and this court, (Supreme Court) upon an appeal to it on that issue also refused to accede to the prayer for the amendment.   In the course of this interlocutory matter, Tiamiyu Adeagbo, the first plaintiff/respondent died and the prosecution of the case was carried on by Alhaji Lamidi Atanda, the second plaintiff/respondent on behalf of Odetunde family.   Again, Alhaji Lamidi Atanda himself died on the 12 of December 1996 and one Lasisi Kode was by the order of court, sequel to an application dated 9th April, 1998, substituted for the deceased. The parties up to the time the judgment of the court below was given on the 7th of June 2001 were (1) Alhaji Suara Yusuf (the appellant) and (2) Lasisi Kode (the respondent for and on behalf of Odetunde family). Upon the death of Kode, both Madam Idiatu Adegoke and Sulaiman Adeagbo Odetunde were joined by the order of court to continue the prosecution of their appeal.   Alhaji Suara Yusuf (the appellant) who died on the 5th of August 2002 was by the order of this court pursuant to an application dated 9th September 2002 substituted by his son, one Mojeed Suara Yusuf, as the appellant. The above count of the various deaths that occurred while the appeal was still .pending gave rise to the present composition of the parties that are now prosecuting this appeal to finality.


As I have said supra, the appellant who was the plaintiff in the trial-court, being dissatisfied with the decision of the court, appealed to the court below on seven grounds   from   which   five   issues were distilled   for determination by the court below. The respondents, for their part, raised four issues for determination of the court below. For a clear understanding of this case, it is important to observe that both parties filed their respective briefs of argument after the respondents had failed in their bid to amend their pleadings by deleting the word "GRANT" in paragraph 3 of their statement of claim. Counsel representing the parties after adopting their briefs, urged, for the appellants, that the appeal be allowed and for the respondents, that the appeal be dismissed. The very crucial issue laid before the court below was whether on the state of the pleadings and the evidence adduced, the plaintiffs/respondents could be said to have proved by credible evidence, the traditional history relied upon in their pleadings.  As I have said, the court below, in a considered judgment delivered on the 7th of June, 2001, dismissed the appeal before it.


Being dissatisfied with the judgment, the appellants have appealed to this court upon an Amended Notice of Appeal, dated 25th November 2002 but deemed properly filed with the leave of court, on 3rd May 2006, which said Notice incorporating seven grounds of appeal. Distilled there from and set out in the appellant's brief of argument dated 15th July 2004 are two issues which are in the following terms: -


"(1)      Whether the court below could legitimately affirm the High Court judgment for the respondents on grounds expressly rejected by the respondents themselves, unsupported by any oral evidence led (which evidence conflicted with the pleadings), and never made out by the respondents.


(2)        Whether the Court of Appeal's use of Exhibit 6 in this case was appropriated?"


The respondents who disagreed with issue No.  1  distilled by the appellant raised only one issue for determination which as contained in their brief of argument dated 8th  September 2006 but deemed properly filed on the 22nd of January 2007 is as follows: -


"Whether the appellant has made out any case for interference with the decision of the learned justices of the Court of Appeal which affirmed the judgment of the learned trial judge, having regard to all the circumstances of the case including Exhibit 6?"


When this appeal came before us on the 22nd of January 2007 for argument, Mr. Ubong Akpan, learned counsel for the appellant referred to, adopted and relied on the appellant's brief filed on the 10th of August 2004 and while urging that the appeal be allowed, he submitted that the entire appeal turned on the interpretation of Exhibit 6 - the proceedings of judgment of the Ibadan City No.l Grade "A" Customary Court,Mapo Hill Ibadan. It was his further submission that the said exhibit did not advance the case of the plaintiffs/respondents pointing out that the claim before the customary court was wrongly reproduced in the respondents' brief of argument. Mr. Akeem Agbaje, learned counsel for the respondents for his part also referred to, adopted and relied on his clients' brief of argument deemed properly filed on the 22nd of January 2007 and while urging that the appeal be dismissed, he conceded the point raised by Mr. Akpan that the claim before the customary court was wrongly reproduced in the brief of his clients, adding that the words


"and joint owners of Odetunde family lands including the land at Oke-Ode"


 were erroneously represented by the respondents to be part of the claim before the customary court.


In their brief of argument, the respondents expressed their disagreement with issue No.l identified in the appellant's brief; they nevertheless went on in their said brief to reply to the said issue. I have considered the said issue and it is my respectful view that it is very germane to this appeal. 1 shall therefore consider it.


On Issue No. 1, the appellant in his brief, submitted that the trial court wrongly gave judgment in favour of the respondents (who were plaintiffs before that court) on the basis that their root of title to the land was predicated on a grant from Aleshinloye, a root, according to the appellant, which the respondents had rejected on the record as being their case. More importantly, he further argued, no oral evidence was adduced by the plaintiffs/respondents in proof of the grant by Aleshinloye. Reviewing the proceedings before the court below (Court of Appeal) the appellant further submitted that once it became obvious that plaintiffs/respondents' pleading was based on GRANT, but evidence led before the trial court was on original settlement and judgment of the trial court was also founded on original settlement, the plaintiffs/respondents made a desperate effort to amend the relevant paragraph of the pleadings before the trial to delete the part relating to GRANT and confine their case to  Original Settlement. Both the lower court (Court of Appeal) and this court, on appeal to it, refused to grant the prayer. And so the entire case remained predicated on the original pleadings before the trial court. In furtherance of his argument, the appellant opined that the evidence of original settlement proffered by the plaintiffs/respondents at the trial was at variance with the pleadings and that being so and touching as it did, to the radical title lo the said land, the court below ought to have allowed the appeal and ordered a dismissal of the entire suit. In support of this argument, the following cases were relied upon; Adisa v. Oyinwola (2000) 10 NWLR (pt.674) 116;Emeeokwue v. Okadigbo (1973) 4 S.C. 113, Mogaji &Ors v. Cadburv (Nigeria) Ltd. &Ors. (1985) 2 NWLR (pt.7) 393. The court below, it was finally argued, erred in law for deciding the case on an issue none of the parties ever contested and on a piece of evidence which was in conflict with the pleadings. It was urged that the appeal be allowed on this ground.


In reply to this crucial ground, the respondents, in their brief of argument took the two issues raised by the appellant together. They argued that the oral evidence of the plaintiffs/respondents together with the documentary evidence which finds expression in Exhibit 6 tendered at the trial were sufficient proof of the case of the plaintiffs/respondents; contending further that the pleadings were not ambiguous but conceded that the evidence led by Tiamiyu Adeagbo, the 1st  plaintiff was ambiguous. It was their further submission that the court below in holding that the ambiguity created by the evidence of 1st plaintiff was overridden by the legal effect of the admissions in Exhibit 6.


I start by saying that it is now a very trite principle of law that parties are .bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings; or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded by the court; if I must cite an authority in support of this statement, I call in aid the decision of the Supreme Court in Njoku&Ors. v. Erne & 4 Ors (1973) 5 S.C. 293. The case at hand is a land matter. It is now well established principle of law that a party claiming declaration of title to a statutory or customary right of occupancy to land does not need to plead more than one of the prescribed methods of proof of title to land to succeed. The five ways which have received judicial blessings are: -


(1)        By Traditional evidence


(2)        By Document of title


(3)        By various acts of ownership and possession numerous and positive to warrant inference of ownership.


(4)        By acts of long possession and enjoyment of land


(5)        By proof of possession of adjacent land in dispute in such circumstances which render it probable that, the owner of the adjacent land is the owner of the land in dispute.


See Idundun v. Okumagba (1976) 9-10 S.C. 227 and Ogunnaike v Oluyemi (1987) 3 S.C. 215. Again, in all cases of declaration of title to land, generally, like other cases, the burden of proof lies on the plaintiff to prove his case by credible evidence in line with his pleadings and his case will collapse if he fails to discharge that duty. See Kodilinye v. Odu 2 WACA 336 and Elufisoye v. Alabetutu (1968) NMLR 298. In the case al hand, both parties in their pleadings rely on traditional history. I pause to remind myself that the defendant, now the appellant never counter-claimed. In paragraph 3 of the statement of claim dated 1st  of February 1986 and filed on the 3rd of February 1986, the plaintiffs/respondents averred thus:


Para 3


"The laud in dispute formed part of a large tract of land Settled upon by one Odetunde the ancestors of the plaintiffs many years ago after Grant by Aleshinloye during the reign of Maye, after the Egbas and Ijebus have been driven away from the area."


(Underlining mine for emphasis)


A careful reading of paragraph 3 of the statement of claim quoted supra leaves me in no doubt that they (plaintiffs) were relying on GRANT from Aleshinloye. On the face of that paragraph, it admits of no argument mat their case was that it was after the GRANT by Aleshinloye to Odetunde (their ancestor) that he (their ancestor) settled on the land. The condition precedent to a legally valid settlement on the said land by Odetunde was a GRANT by Aleshinloye. So therefore, the plaintiffs/respondents owe a duty in law, to establish, by credible evidence, grant of the land by Aleshinloye to Odetunde. For his part, the defendant (now appellants) averred in paragraph 3 of his statement of defence dated 18th July 1986 and filed the same day thus: -


Para 3


"The defendant avers that the land in dispute forms part of a large area of land which originally belonged to Oderinde by Settlement under the native law and custom."


(Underlining mine for emphasis)


Again, a careful study of paragraph 3 of the statement of defence reproduced supra creates no doubt in my mind that Settlement by Oderinde on the said large tract of land is the root of their title. The crucial matter to now examine is the evidence led in proof of the traditional histories put up by the parties. The 1st plaintiff, Tiamiyu Adeagbo, the only witness who testified in proof of the plaintiffs' traditional history said in examination-in-chief and I quote:


"My family got on the land during the Ibadan/ljebu War. Odetunde was a warrior and he was our ancestor who first Settled on the land ....... When the war was over, Odetunde Settled there with his family and lie established a village there".


(Again, the underlining is mine for emphasis)


For the umpteenth time, I remind myself that there was no counter­claim. In civil cases, the like of this, the rule is that the burden of proof rests on the party, whether plaintiff or defendant, who asserts the affirmative of the issue - here the ownership of the land. I still say that the defendant did not counter-claim. So it is only when the plaintiffs have satisfactorily discharged their duty by proving GRANT from Aleshinioye that the onus of proof will shift to the defendant (now appellant); called the Onus Probandi, it rests on the party who would fail if no evidence at all, or no more evidence, as the case may be, were given on either side. See Ajide v Kelani (1985) 11 S.C. 124.


The evidence of Tiamiyu Adeagbo which I reproduced supra is what the plaintiffs/respondents put forward in proof of that all important averment in their paragraph 3, which is a plea of traditional history. When a party gives evidence in proof of the traditional history pleaded, it is incumbent and necessary if not imperative that a clear and positive statement be made by the trial court on it. And if the other party also adduces traditional evidence, as in the instant case, then the trial court must make a pronouncement as to which of the two stones he believes.


The learned trial judge in his evaluation of the traditional evidence led by both parties said: -


"The plaintiffs claim that their ancestor, one Odetunde first settled on the land in dispute after he had successfully helped, on the instructions of Balogun Aleshinloye in the war to drive Ijebus away from the area .…


The traditional history of the defendant's vendors on the other hand, is that one Oderinde, their ancestor came from Oyo-Ile, first settled on the land in dispute as virgin land and he farmed on it ....................


Looking at the traditional evidence alone, there seems to be little to help chose (sic) between them. Either is probable. There are, however one of two pieces of evidence which appear to give plaintiffs story an edge over that of the defendant's vendors."


In concluding his evaluation of the traditional evidence adduced by both parties, the learned trial judge reasoned: -


"It is clear from the foregoing that the preponderance of credible evidence is heavily in favour of the plaintiffs and I am satisfied that the plaintiffs' ancestor, Odetunde originally settled on the land in dispute and that his descendants right up to the present plaintiffs are the owners of the land in dispute."


Suffice it to say that what the learned trial judge considered as giving an edge to the story of the plaintiffs/respondents are acts of ownership/possession purportedly exercised by the plaintiffs' family. I need not reproduce the evaluation of the pieces of evidence relating to ownership and possession for the reason I shall give ANON. As earlier said, the defendant/appellant was dissatisfied and he appealed to the court below challenging the judgment of the trial court given in favour of the plaintiffs/respondents. The court below, after taking addresses of the respective counsel based on the respective briefs on the legal owner of the land, reasoned on this crucial issues, thus: -


"Thus, the evidence from the parties therein supported by a member of the Aleshinloye family, Ladejo Adeleke is that Odetunde settled on the large parcel of land including the land in dispute after same had been granted him by I Aleshinloye. It follows therefore that the pleading in paragraph 3 of the statement of claim about Odetunde’s settlement on land in dispute after grant by Aleshinloye is to my understanding consistent with the root of title  uncontested and established in Exhibit 6 ............"


At a particular point in the course of reviewing the exercise of evaluation of this crucial evidence by the trial court, the court below expressed some doubt as to whether Odetunde whom the plaintiffs/respondents put forward was the owner of the land based on the traditional evidence, the court below said: -


"At the trial the relevant oral evidence came from the 1st respondent, Tiamiyu Adeagbo. At page 69, lines 20-30 of the record, he said:


I know the land in dispute. It is Odetunde family land. The land is at Oke-Ode, Agbanmu Road near Sango in Ibadan. The land is 150 acres. The family got on the land during the Ibadan/Ijebu War.Odetunde was a warrior and he was our ancestor who first settled on the land. Iba Oluyole was the reigning Olubadan at the time. It was Bankole Aleshinloye who was the Balogun at Ibadan at the time told Odetunde to go and defend land against the Ijebus. When the war was over, Odetunde settled there with his family and he established a village there.




The evidence itself is somewhat ambiguous. On the orders of Bankole Aleshinloye, Odetunde went into the land to defend it against the Ijebus. After the war, Odetunde settled there with his family and he was the first to do so. Can this be construed to mean that Odetunde founded the land? The fact that Bankole Aleshinloye ordered him to go into the land and defend it implied that title in the laud was vested in Bankole Aleshinloye and that Odetunde settled there with his family at the end of the war after same had been granted him by Aleshinloye. I do not think the statement can be construed to mean that Odetunde founded the land. As I said, the statement is ambiguous. However, the respondent had a duty to tender clear, unequivocal evidence in support of his pleadings in paragraph 3 of the statement of claim. Because of the ambiguity, I can only subscribe to the view that the evidence standing on its own was not sufficient proof of the averments in paragraph 3 of the statement of claim".


I pause here to say that based on the evidence of Tiamiyu Adeagbo which is reproduced supra, the court below was right in the concluding part of the summation which I reproduced from the judgment of the court below. But the court below still went ahead to evaluate the printed evidence in favour of the plaintiffs/respondents when that court at page 184 said and I quote: -


"I am therefore not persuaded by the contention of the learned counsel for the appellant that the case of the respondent was liable to be dismissed on the aforesaid evidence alone. That piece of evidence as to the respondent's root of title has to be considered together with all other legally admissible and relevant evidence presented at the court of trial."


With due respect and for what I shall soon say, this concluding part of the summation of the court below has no support in law. I do realise that the court below adjudicated on the matter as an appellate court. And it has been held that an appeal court has no duty to disturb the findings of fact made by a trial court except, in exceptional circumstances, where the inferences drawn from the established facts are wrong or where those findings do not flow or follow from the evidence given see Egri v. Uperi (1973) 1 ALL N.L.R. (pt.2) 198; Obisanva v. Nwoko & Anor (1974) 1 ALL N.L.R. (pt.5) 420 and Fashanu v. Adekoya (1974) 1 ALL N.L.R, (pt 1) 35. The court below was in serious error, not to have reversed the judgment of the trial court. I say so because once it is obvious from the records, as in the instant case, that a plaintiff who pleaded traditional history failed to adduce evidence, credible one, in proof of same, his case is entitled to be dismissed, in toto no other evidence should be considered. Let me repeat here, the plea of the plaintiffs/respondents, in paragraph 3 of the statement of claim is one of specific grant - Grant of Land from Aleshinloye to Odetunde - no scintilla of evidence was led in support. That was grave to the case presented and it knocked the bottom out of the case which at that stage, qualified for nothing but a dismissal order. This statement derives legal force from a number of judicial decisions which I shall examine hereunder. The first of such decisions is Emegokwue v. Okadigbo (1973) 8 N.S.C.C. 220 where the Supreme Court, per the judgment of Falayi-Williams J.S.C (as be then was) said at page 222 and I quote him:


"It is trite law, and we have repeated it on many occasions, that parties are bound by their pleadings and that any evidence which is at variance with the averments in the pleadings goes to no issue and should be disregarded by court."


Again in Odofin v. Ayoola (1984) 15 N.S.C.C. 711, this court per the judgment of Karibi-Whyte J.S.C at page 720 said and I quote: -


"It is well settled that where a plaintiff relies on grant or original settlement as title to claim the land in dispute, the burden is on him to establish such grant or original settlement - this he can do by cogent and acceptable evidence of tradition, whether or not, accompanied by exercise of dominion which alone may be sufficient to establish title .....................................


It follows therefore that where traditional evidence of that alleged from which title is derived, is lacking or rejected, as was in this case, such evidence is not only merely inconclusive but also cannot be relied upon whether any other acts positive or numerous can support evidence of ownership."


This court had occasion to express in clear terms that when a party pleads a grant as the root of his title and proves that grant by credible traditional evidence, he need not go further to prove possession or acts of ownership or indeed any of the other established ways stated supra. In Atanda v. Ajani (1989) 3 NWLR (pt.111) 511, Craig J.S.C delivering the judgment of this court, reasoned: -


"It has been held that when a party relies on a grant and proves that grant by traditional evidence, he need not go further and prove possession or acts of ownership or any of the other four ways stated above .......... In the case of F.M. Alade v. Lawrence Awo (1975) 4 S.C. 215 at part 225, this court held:


“In other words, Webber J, quite rightly thought, and we agree with him that, where the other evidence of title i.e. tradition is inconclusive or entirely lacking if we may say so, then and it is only then, that the onus of proving the facts constituting acts of ownership is thrown upon the plaintiff. That being the case, we think that the correct view of the law is that the plaintiff in a claim for declaration of title could succeed only on the basis of traditional evidence. Moreover, it seems to us that the rule in Ita's case does not apply where the plaintiff relies upon and proves title by grant.


That pronouncement represents the state of the law  … I am satisfied that a consideration of the issues of possession does not  arise until the question of traditional history has been determined."


(Underlining mine for emphasis)


It should not be forgotten that, in the instant case, the plaintiffs/respondents claimed a declaration of title based on GRANT from Aleshinloye to Odetunde under Yoruba Native Law and Custom. Unless the origin of their title is valid, that it was established by credible evidence, even if there was copious evidence of possession, the length of possession does not ripen invalid title to a valid ownership title. This is so because a claim for declaration of title is not founded on ownership by prescription under native law and custom and it will never be; see Mogaji &ors v. Cadbury Nigeria Ltd &ors.(1985) 7 S.C. 59. Other cases in which similar views as slated above have been expressed by (his court are: Fasoro v. Beyioku (1988) 2 NWLR fpt.76) 363 and Obioha &ors v. Duru&ors. (1994) 8 NWLR (pt.365) 631.  Before I conclude the discussion on this point, let me say that I do realise that, in substance, the findings of the court below tally with the findings of the trial court. In other words, there are two concurrent findings of fact before us.  When faced with such a situation as we do here, the general rule to be applied, which rule is longstanding is that where there are two concurrent findings of facts, as in the instant case before us, such findings will not ordinarily be disturbed by this court unless there is, ex facie, the record of proceedings substantial error which is very apparent. See Kofi v. Kofi 1 WACA 284; Chinwendu v, Mbamali & Anor (1980) 3-4 S.C. 252.  It is very much apparent from the record of proceedings that the plaintiffs/respondents failed to prove grant of land from Aleshinloye to Odetunde (which is the substratum of their case). To refuse to interfere here will, as was said in Coker v. Ognntola &Ors (1985) 6 S.C. 223, be tantamount to a substantial miscarriage of justice. It is for this crucial reason that I resolve Issue No 1 on the appellant's brief of argument in his favour. The judgments of the trial court and the court below must not be allowed to stand; they are hereby set aside while I enter an order dismissing the suit in toto.


In view of the principles of law that I have enunciated above, I would have ended the discourse on this appeal at this point, but certain fundamental principles of law subsumed in Issue No 2 on the appellant's brief and the only issue raised by the respondents in their brief are propelling me to examine them if only for the re-statement of the area of the law concerned which does not often offer itself for consideration. More important is the principle of law stated by this court that all courts, including this court, must never leave any issue or issues raised by the party or parties to suit without hearing and determining same before concluding the case. See (1) Katto v. C.B N (1991) 9 NWLR (pt.214) 126 and (2) Osasona v. Ajayi&Ors (2004) 14 NWLR (PT.894) 527. For the foregoing, I shall proceed lo consider the second issue raised by the appellant.


Issue No 2 in the appellant's brief of argument raises the question as to whether the use by the court below of Exhibit 6 tendered at the trial and the conclusions reached on it were appropriate. Indeed, the only issue identified for determination by this court is whether having regard to all the circumstances of the case and in particular, Exhibit 6, this court would be justified in interfering with the decision of the court below,Exhibit 6 is the proceedings and judgment in Suit No. CV/5/80 Alli Ogunsiji & 8 Ors v Salawu Adeagbo & 3 Ors. The claim in the said suit brought by the plaintiffs therein against the defendants jointly and severally is for a declaration under native law and custom that the plaintiffs as well as the defendants are members and/or descendants of Odetunde Family of Isale-Ijebu, Ibadan. Exhibit was pleaded by the plaintiffs/respondents in paragraphs 27, 23, 29, 31, 33, 34 and 39. The purpose for which Exhibit 6 was sought to be used by the plaintiffs/respondents in the proceedings is contained in paragraph 39 which reads:-


Para 39 of the statement of Claim; -


"The plaintiffs will rely on all the proceedings and judgment pleaded and admissions contained therein as acts of ownership and possession and as estopping the defendant's vendor from disputing Odetunde'stitle to the land in dispute."


The defendant/appellant disputed the aforementioned paragraphs of the statement of claim relating to Exhibit 6 when, in paragraph 37 of the statement of defence, it was pleaded thus: -


"As regards the suit quoted in paragraphs 21,22,24,26,27 and 28 of the statement of claim, the defendant will contend at the hearing of this action that they are "res inter alios.