SADIKU OGUNSAKIN & ORS v. SAMUEL BALOGUN & ANOR (2015)

SADIKU OGUNSAKIN & ORS v. SAMUEL BALOGUN & ANOR

(2015)LCN/7955(CA)

In The Court of Appeal of Nigeria

On Friday, the 10th day of July, 2015

CA/B/361/2008

RATIO

PLEA OF ESTOPPEL PER REM JUDICATAM: WHAT THE PARTY RELYING ON A PLEA OF ESTOPPEL PER REM JUDICATAM MUST ESTABLISH TO SUCCEED

It is the law that for a plea of estoppel per rem judicatam to succeed, the party relying on it must establish the following:
1 That the parties or their privies are the same in both the previous and present proceedings.
2. That the claim or issue in dispute in both actions is the same.
3. That the res or subject- matter of the litigation in the two cases is the same.
4. That the decision relied upon to support the plea of estoppel per rem judicatam must be valid, subsisting and final and
5. That the Court that gave the previous judgment relied upon to sustain the plea must be a Court of competent jurisdiction.
If any of the above elements is not established the plea of estoppel per rem judicatam cannot be sustained. See: The Honda Place Ltd v. Globe Motor Holdings Nig Ltd (2005) 14 NWLR (Pt 945) 273. per. JAMES SHEHU ABIRIYI, J.C.A.

LAND LAW: OWNERSHIP AND POSSESSION; WHETHER PROOF OF OWNERSHIP IS PRIMA FACIE PROOF OF POSSESSION

It is trite law that proof of ownership of land is prima facie proof of possession. The presumption is that the person having title to the land in dispute is in possession. See: Sapo v. Sunmonu (2010) 11 NWLR (Pt.1205) 374. per. JAMES SHEHU ABIRIYI, J.C.A.

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

1. SADIKU OGUNSAKIN
2. CHIEF E. O. FALUSI AIALUMOYE
3. DARE SALISU SOLOMON
4. ADAM MOYAKI
5. AMUDA SHABA
6. AMOS OLOFIN
7. ALHAJI SAKA ABUDU
(For themselves and on behalf of
Igbede Quarters, Ikare) Appellant(s)

AND

1. SAMUEL BALOGUN
2. AYODELE OLOWOLEYE
(For themselves and on behalf of Odoso Family) Respondent(s)

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling delivered on 5th May, 2003 in the High Court of Ondo State in the Ikare-Akoko Judicial Division holden at Ikare Akoko.

The Respondents in this appeal were Plaintiffs in Suit NO: HIK/17/81 Balogun & Anor v. Shittu Onigbede & Ors which commenced from Ikare. The Respondents claimed against the Appellants for the following reliefs:
(a) Declaration of Statutory right of occupancy to all that piece and parcel of land known as Odoso family land situate, lying and being along Ikare-Owo Road, Ikare – Akoko, delineated on plan to be filed hereafter.
(b) Forfeiture of all the rights and interest whatsoever of the Defendants as customary tenants on the portion of the aforesaid land granted to them by the Plaintiffs.
(c) Perpetual Injunction restraining the Defendants, their servants, agents, privies and all persons, claiming by and through them from further entry on the said portion of the plaintiffs’ family land aforesaid.

Judgment was entered in favour of the Respondents as per the reliefs reproduced above

and claimed by the Respondents.

The Appellants appealed to the Court of Appeal and lost.
They proceeded to the Apex Court and lost again.

When the Respondents sought to enforce the judgment by filing a writ of possession in execution of the judgment; the Appellants now instituted a fresh action in the High Court of Ondo State, Ikare-Akoko Judicial Division claiming against the Respondents the following:
(1) Declaration that the Plaintiffs, being persons in Possession of the piece or parcel of land situate and being along Ikare-Owo Road, Ikare Akoko measuring about 5km and more particularly described in the Survey plan to be filed in this suit are the persons entitled to the possessory rights over the said Piece of land.
(2) Declaration that the Plaintiffs being a large community of people who have been in possession of the land from the time of their ancestors have indefeasible interest on the land which cannot be forfeited under any circumstances whatsoever.
(3) Declaration that the Judgment of Supreme Court in Appeal No SC143/1998 Onigbede & Ors v. Balogun & Ors delivered on 25th February, 2002 in favour of the

Defendants does not and cannot confer on the Defendants the right to evict the Plaintiffs from the land referred to in Paragraph 1 supra by Writ of Possession or by other means whatsoever.
(4) Injunctions restraining the Defendants by themselves, their heirs, privies, agents, servants or any person however described from forcibly ejecting the Plaintiffs from the said piece of land or in any other manner disturbing or affecting their possessory rights thereto.

After the exchange of pleadings, the Respondents brought an application before the High Court praying for the following:
1. On order setting aside the writ of Summons, Statement of Claim and an Application for interim injunction filed by the Appellants and served on the Respondents.
2. A declaration that in the circumstances of this case, the Court had no jurisdiction over the reliefs or remedies sought by the Appellants in the action and the application.
3. An Order that the action be dismissed.
The application was brought upon the following grounds:
1. That the issue is res judicata
2. The Appellants are estopped by the Judgment of the Supreme Court in Suit No:

SC. 143/98 Shittu Onigbede & Ors v. Balogun and Anor from relitigating the issues now raised in the present action as to title and possession of the plaintiffs to the land in dispute in that case.
3. That Ikare High Court or any other Court has no jurisdiction to sit as a Court of Appeal over the decision of the Supreme Court.
4. That Ikare High Court or any other Court has no jurisdiction to order a stay or grant an injunction to restrain the final execution of order or judgment of the Supreme Court.
5. That the action is frivolous, embarrassing, incompetent, misconceived and an abuse of process of Court in its entirety.
6. That the action is otherwise not maintainable in law.

After considering addresses of learned counsel for the parties the lower Court in a well considered ruling stated thus:
“In the instant case for me to entertain the suit of the respondents as constituted when the issue of forfeiture as it relates to the possessory right of the respondents which is the subject matter of the present suit had been decided to finality in the judgment of the Supreme Court No. SC 143 /98 which affirmed the judgments of the

Court of Appeal amd (sic) the said judgment of the Court of Appeal No. CA/B/10/96 which affirmed the judgment of this Court in Suit No.HIK/17/81, I will be putting myself in much the same position as Desale J in Amos Ogbesusi v. Salami Fabulude (Supra) I will decline the invitation.
Having regard to all that have been said in this ruling, I hereby hold that the suit of the respondents is not only caught by the defence of res judicata but also it is frivolus, embarrassing incompetent and an abuse of the process of this Court. The suit is not maintable in law or in any Court. The defence of res judicata succeeds.”

Dissatisfied with the ruling of the lower Court, the Appellant appealed against it to this Court on three grounds. He then presented the following two issues for determination:
(ii) Whether the learned trial Judge was right to have come to the conclusion that the suit constitutes an abuse of Court process.
Issue 1 is not contained in the brief although it is argued.

The Respondents presented a lone issue for determination:
Whether the learned trial Judge was right in holding that all the conditions necessary for him

to invoke the doctrine of estoppel per rem judicatam from the former case were present in this present suit filed by the Appellants.

Arguing issue 1, learned counsel for the Appellants contended that the Appellants are not claiming title and are not saying that the Supreme Court is wrong in its judgment in case No: SC 143/1998 but are asking for a declaration that the Respondents cannot on the basis of the Supreme Court judgment take a writ of possession against them.

It was submitted that the principle of estoppel per rem judicatam can avail a defendant where:
(1) The parties in the previous suit and the present suit where the defence is raised are the same.
(2) The subject matter is the same;
(3) The issue decided in the previous case is the same as the one in issue in the present suit.
(4) The Court that tried the previous suit had jurisdiction to entertain it. Reliance was place on Abonabe v. Abolarin (2000) 10 NWLR (Pt 624) 41 at 55 and Udo v. Obot (1989) 1 NWLR (Pt 95) 69 at 73.

The main issue in the present case, it was submitted is a claim for possession which was not raised in the previous suit. Therefore it was wrong

for the lower Court to hold that the defence of estoppel per rem iudicatam was available to the Respondents.

In any case, since the lower Court treated the matter as a jurisdictional issue, the proper order to have made is one striking out the suit instead of dismissing it. We were referred to Adama v. Anaja (2003) 37 WRN 95 at 109 and Bello v. Gov. Kogi State (1997) 9 NWLR (Pt 521) 496.

On issue ii, it was submitted that the lower Court was wrong to have held that this suit constitutes an abuse of Court process as the subject matter is not the same.
This Court was urged to allow the appeal.

In his argument, the learned counsel for the Respondents pointed out that the Appellants appear to be saying that the cases are the same except that in the present case the claim is for possession and not title as in the previous case.
He submitted that where there are competing rights to possession between two parties in a suit, the law ascribes possession to the party that establishes title. We were referred to Umeobi v. Otukoya (1978) 4 SC 33 at 55. It was submitted that the Appellants joined issues with the Respondents as to title in SC

143/98, the issue of possession had also been decided. We were referred to Fasoro v. Beyioku (1988) 2 NWLR (Pt 76) 263. It was further submitted that estoppel per rem judicatam does not rest only upon points which properly belong to the subject of litigation and which the parties exercising reasonable diligence might have brought forward at the time. Reliance was place on Aro v. Fabolude (1973) 2 SC 75 at 89 and Fabunmi v. Delegan (1965) NWLR 369.

It was submitted that the possessory rights the Appellants are claiming in this suit and in this appeal have been forfeited in the judgment which went on appeal to the Supreme Court and the Appellants are now trespassers on the land in dispute. That the Appellants did not claim relief for forfeiture in the suit and denied being tenants of the Respondents.
We were referred to the Respondents’ address on page 253 – 257 of the record of appeal particularly the authorities cited.

Appellants’ issue ii, it was argued, was not raised in any of the three grounds of appeal and should not be considered.

I agree entirely with learned counsel for the Respondents that issue ii presented for determination by

the Appellant is not based on any of the three grounds of appeal and should be struck out. It is accordingly struck out.

The narrow issue before us is the claim by the Appellants that the present suit is a claim for possession by the Appellants to the land in dispute. That while the Respondents have been granted title to

the land, the claim by the Appellants for possession to the same land is not caught up by the principle of estoppel per rem judicatam.

Certainly this is a very cheap argument. It is trite law that proof of ownership of land is prima facie proof of possession. The presumption is that the person having title to the land in dispute is in possession. See: Sapo v. Sunmonu (2010) 11 NWLR (Pt.1205) 374.

As the claim of the Respondents to title to the land in dispute succeeded in the High Court, Court of Appeal and the Supreme Court, the Appellants’ suit is an attempt to use the judicial process to as it were blackmail the Respondents. Surely no Court will allow them to do so.

The lone issue for determination is resolved in favour of the Respondents.
Consequently, the appeal is dismissed.
The ruling and orders of the lower Court are affirmed by me.
Respondents are awarded N3,000 costs to be paid by the Appellants.

MOJEED ADEKUNLE OWOADE, J.C.A.: I had the opportunity of reading the draft of the lead judgment of my learned brother, James Shehu Abiriyi, JCA. I am in agreement with the reasoning and the

conclusion arrived at in the said lead judgment and I adopt them as mine. The appeal lacks merit and it is hereby accordingly dismissed.
I abide by the consequential orders in the said lead judgment including order on costs.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree that this appeal be dismissed. The Respondent had had their title confirmed by the Courts, up to the Supreme Court. To come for a declaration on the basis of occupation is to seek to scorn the decision of the Supreme Court declaring title to the Respondents.

The contemptuous act of the Appellant is clearly seen from their claim before the trial Court as reproduced in the lead Judgment that the Judgment of the Supreme Court in favour of the defendants does not confer a right to evict the plaintiffs by writ of possession or by any means whatsoever.

It should be noted that this suit was instituted after the Appellants had lost a suit wherein the Respondents had Judgment for Declaration of Statutory Right of occupancy to the land, the subject of the Suit; forfeiture of all rights and interests whatsoever of the Defendants/Appellants as Customary

tenants of the Plaintiffs/Respondents and perpetual injunction from entry into the said land.

Rather than broker a negotiated reprieve, these Appellants still contested the Judgment of the apex Court in contempt, through the back door. The Appeal against their loss has no merit.

I join in dismissing the instant appeal and with the same order as to costs as made in the leading Judgment, as the case was caught by the doctrine of res judicatam and also constituted an abuse of Court process.
It was rightly dismissed by the trial Court as it had no merit either.

Appearances:

ALHAJI R. O. KAZEEMFor Appellant(s)

J. O. A. AJAKAIYEFor Respondent(s)

Appearances

ALHAJI R. O. KAZEEMFor Appellant

AND

J. O. A. AJAKAIYEFor Respondent