ALHAJI MUSTAPHA DUROJAIYE AJISEGIRI & ORS v. OBA BASHIRU SALIU SALAMI & ORS
(2016)LCN/8273(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of March, 2016
CA/L/132/2014
RATIO
APPEAL: ISSUE FOR DETERMINATION: WHETHER A PARTY IS ALLOWED TO FORMULATE MORE THAN ONE ISSUE FOR DETERMINATION
It is also trite that a party is not allowed to formulate more than one issue for determination out of a ground of appeal even though he can combine two or more grounds of appeal in formulating a single issue for determination. This is the principle against the proliferation of issues for determination by parties. See AMODU v. THE COMMANDANT, P. C., MAIDUGURI & ANOR (2009) 15 NWLR (PT 1163) 75 SC; NWANKWO v. YAR’ADUA (2010) 12 NWLR (PT 1209) 518 SC; KALU v. ODILI (1992) 2 SCNJ 76. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
PRACTICE AND PROCEDURE: THE DOCTRINE OF RES JUDICATA; WHAT IS THE DOCTRINE OF RES JUDICATA AND DOES IT APPLY TO THE FACT OF THE INSTANT CASE
It is trite law that parties including their privies against whom judgment had been given in a previous suit are estopped from re-litigating the subject-matter of such suit in a subsequent suit. This principle of law is commonly known in legal parlance as the principle of res judicata. The rule is a limitation of estoppel per rem judicatam to parties and privies and it is simply an affirmation of the maxim res inter alios acta alteri nocere non potest. See AJIBOYE v. ISHOLA (2006) 13 NWLR (PT 998) 628; OKUKUJE v. AKWIDO (2001) 3 NWLR (PT 700) 261. In DANIEL TAYAR TRANS ENT. NIG. CO. LTD v. BUSARI (2011) LPELR -923 (SC) 26, paras D – G, the Apex Court, Per ONNOGHEN, JSC held: “What then is the doctrine of res Judicata and, does it apply to the facts of this case? It is simply that once a dispute or matter has been finally and judicially pronounced upon or determined by a Court of competent jurisdiction, neither the parties thereto nor their privies can subsequently be allowed to re-litigate the matter because a judicial determination properly handed down is conclusive until reversed by an appellate Court. The veracity of that decision or determination is also not open to a challenge nor can it be contradicted. The doctrine is grounded in public policy which stipulates that there must be an end to litigation in the latin maxim “interest republica at sit finis litium.” per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
PRACTICE AND PROCEDURE: THE DOCTRINE OF RES JUDICATA; THE CONDITIONS THAT MUST BE ESTABLISHED FOR A SUCCESSFUL PLEA OF RES JUDICATA
It is imperative however to note that for a successful plea of res judicata, certain conditions must be established by the party relying on it viz: (1) the parties or their privies in both the earlier case and the case in which it is raised are the same: (2) the judgment relied upon is valid, subsisting and final: (3) the claim or issue in dispute in the proceedings are the same: (4) the subject matter of litigation in both cases is the same: (5) the Court that decided the previous suit is a Court of competent jurisdiction. See ABUBAKAR v B.O. & A.P. LTD (2007) 18 NWLR (PT 1066) 319; IKOTUN v. OYEKANMI (2008) 10 NWLR (PT 1094) 100; ABIOLA & SONS BOTTLING CO. LTD v. SEVEN-UP BOTTLING CO. LTD & 2 ORS (2012) LPELR – 9279 (SC). per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
PRACTICE AND PROCEDURE: THE DOCTRINE OF ESTOPPEL PER REM JUDICATAM
The law is clear that where a party stands by and is content to see another ‘fight his battle’ for him in a matter that affects his interest but fails to apply to be joined as a party to the ongoing suit, he cannot be heard to subsequently complain as he is deemed to be bound by the outcome of the case and is thus estopped from re-litigating the same issue as determined in that case. While relying on its decision in ETITI v EZEOBIRI (1976) 12 SC 123, the Supreme Court, per OGUNTADE, JSC in OMIYALE v. MACAULAY [2009] 7 NWLR (PT 1147) 597; (2009) LPELR – 264C., pp 27 – 28, paras F – C held:
“…For the purpose of estoppel per rem Judicatam, ‘party’ means not only a person named as such but also one who being cognizant of the proceedings and, of the fact that party thereto is professing to act in his interest allows his battle to be fought by that party intending to take the benefit of the championship in the success… It therefore follows that if an individual was content to stand, by while his battle was fought and concluded by another in same interest, he must be and is indeed, be bound, by the result and should, not be allowed to re-open the case…” per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
1. ALHAJI (CHIEF) MUSTAPHA DUROJAIYE AJISEGIRI
2. MADAM ADIATU BANKOLE
3. MADAM SIDIKAT OWORONSOKI
(For themselves and on behalf of the Oworonsoki Family) Appellant(s)
AND
1. OBA BASHIRU SALIU SALAMI
2. EXECUTIVE GOVERNOR OF LAGOS STATE
3. ATTORNEY – GENERAL OF LAGOS STATE
4. COMMISSIONER FOR LOCAL GOVERNMENT AND CHIEFTAINCY AFFAIRS
5. KOSOFE LOCAL GOVERNMENT Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling delivered by the High Court of Lagos State, Ikeja, Per Onigbanjo J., delivered on 27th March, 2013 on the preliminary objection filed by the Respondent thereby dismissing the suit as instituted by the Appellant on ground of estoppel. The Appellants had sought for the following reliefs:
(a) A DECLARATION that the Claimants families consisting of Bani and Kamado Oworonsoki are the ones entitled to be recognised, and to produce an Oba or a Traditional Ruler for Oworonsoki Town in the Kosofe Local Government Area of Lagos State.
(b) A DECLARATION that the 1st Defendant is not entitled, to be nominated, selected, or appointed, as the OBA of Oworonsoki in the Kosofe Local Government Area of Lagos State, therefore his appointment as the Oba of Oworonsoki by the 2nd to the 5th Defendants herein is wrongful, null and void; therefore it should be set aside.
(c) AN ORDER of this Honourable Court, setting aside any or the purported CHIEFTAINCY DECLARATION made under Customary Law Regulating the selection of OBA OF OWORONSOKI
1
CHIEFTAINCY TITLE in the KOSOFE LOCAL GOVERNMENT Area of Lagos State, being contrary to and a violation of the Customary Law of Oworonsoki, Kosofe and Lagos State in particular.
(d) AN ORDER of this Honourable Court directing the Lagos State Executive Council and/or the Kosofe Local Government to make a new Chieftaincy Declaration for the Obaship title of Oworonsoki that would take cognizance of the rights and interests of the Claimants family.
IN THE ALTERNATIVE:
A DECLARATION that the OWORONSOKI FAMILY of Oworonsoki Town, in the Kosofe Local Government Area of Lagos State, consisting of (i) Bani Oworonsoki; and (ii) Kamado Oworonsoki stocks are entitled to be made and recognised as
(i) Bani Ruling House; and
(ii) Kamado Ruling House, in respect of the OBASHIP TITLE of Oworonsoki, in addition to the existing Ruling House(s) made under Customary Law of Oworonsoki governing nomination, selection, appointment to the Stool of Oba of Oworonsoki in the Kosofe Local Government, aforesaid.
The suit was commenced by the Appellants via a Writ of Summons and Statement of Claim dated 16th, of November 2012. Upon filing and exchanging
2
pleadings, the 1st Respondent filed a Preliminary Objection dated 18th of June 2013 urging the lower Court to dismiss the suit on the ground, inter alia, that the Appellant’s suit is res judicata. Upon adoption of their respective address, the lower Court in its Ruling on 27th of November, 2013 upheld the Respondents’ Preliminary Objection thereby dismissing the Appellants’ suit.
Naturally aggrieved with the decision of the lower Court, the Respondent lodged an appeal vide a Notice of Appeal dated 10th of December, 2013 and filed on the 11th of December, 2013 on a sole ground and subsequently in compliance with the Rules of this Court, parties filed and exchanged their briefs of argument whereupon the arguments therein were adopted at the hearing of this appeal on 11th of February, 2016.
Appellants’ Brief of Argument dated 10/3/2014 and filed 13/3/2014 is settled by Chief (Dr) V. A. Odunaiya of V. A. Odunaiya & Co. Appellants’ Reply Brief to the 1st Respondent’s Brief is dated 22/5/2014 and filed 23/5/2014 but deemed, 04/5/2015 as well as the Reply Brief to the 2nd, 3rd and 4th Respondents dated 11/11/15 and filed 12/11/2015 but deemed 11/2/2016.
3
A sole issue was formulated for determination in the Appellants’ Brief thus:
?Whether the Lower Court was right in holding that the Appellants were estopped by the Judgment in ID/741M/98 when they were neither parties nor privies to any of the parties in that Suit?”
The 1st Respondent’s Brief of Argument settled by Yomi Okunnu of Yomi Okunnnu & Associates is dated and filed 1/4/2014. Four issues were identified for determination as follows:
1. ?Whether the Appellants have locus standi and whether same have not be (sic) waived, if any:
2. Whether the declaration gazetted by the 2nd & 3rd Respondents and, accepted by the 4th, 5th Respondents and the entire Oworonshoki community has not formed the custom of the people of Oworonshoki for selection of Oba;
3. Whether the Appellants’ present suit is caught by the doctrine of estoppels by standing by with respect to the ?stool of Oba Oworonshoki; and
4. Whether the Appellants’ present suit is caught by the doctrine of issue estoppel on suit no. ID/741M/98.?
2nd, 3rd & 4th Respondents’ Brief of Argument is dated and filed 14/5/2015 but deemed 30/9/2015.
4
A Notice of Preliminary Objection was incorporated therein but at the hearing of the appeal on 11/02/2016, both the issue formulated with respect to the Preliminary Objection as well as argument thereon was abandoned.
Same is hereby struck out. The Brief was settled by S.A. Quadri Esq., of the Attorney General’s Chamber, Lagos State Ministry of Justice. A sole issue for the determination of this appeal was formulated thus:
“Whether the Lower Court was right in holding that the Appellants were estopped by the Judgment in ID/74M1/98 when they were neither parties nor privies to any of the parties in that suit.”
The 5th, Respondent represented by Yemi Adeshina Esq., of Graystone Solicitors filed a Brief of Argument dated 14/05/2014 and filed 23/05/2014. A sole issue was nominated therein thus:
“Whether the Lower Court was right in holding that the Appellants were Estopped by the Judgment in SUIT NO: ID/741/98 when they were neither parties nor privies to any of the parties in that suit?”
A review of the issues formulated by the parties’ counsel indicates that they are ad idem as to the real issue for the determination of
5
the present appeal as flowing from the sole ground of Appeal in the Notice of Appeal, save for the 1st Respondent.
Let me briefly say that the law is settled beyond citing authorities that issue(s) for the determination of an appeal must arise from and relate to the ground(s) of appeal.
It is also trite that a party is not allowed to formulate more than one issue for determination out of a ground of appeal even though he can combine two or more grounds of appeal in formulating a single issue for determination. This is the principle against the proliferation of issues for determination by parties. See
AMODU v. THE COMMANDANT, P. C., MAIDUGURI & ANOR (2009) 15 NWLR (PT 1163) 75 SC; NWANKWO v. YAR’ADUA (2010) 12 NWLR (PT 1209) 518 SC; KALU v. ODILI (1992) 2 SCNJ 76.
In the instant case, the 1st Respondent formulated four (4) issues for determination out of a sole ground of appeal as evident on the Notice of Appeal. The issues as formulated by the 1st Respondent are therefore incompetent and valueless to the determination of the present appeal and same will be ignored by this Court. See LATUNDE & ANOR v. LAJINFIN (1989) LPELR – 1760 SC.
To this
6
extent and for the purpose of emphasis, the sole issue for the determination of this appeal is:
Whether the Lower Court was right in holding that the Appellants were estopped by the Judgment in ID/741M/98 when they were neither parties nor privies to any of the parties in that suit.
In the Appellants’ Brief, Counsel submitted that the Suit No. ID/741M/98 was instituted by the 1st Respondent herein against the then Military Administrator of Lagos State, the Attorney-General of Lagos State and the Permanent Secretary, Local Government Administration, Lagos State. Referring to the reliefs sought in that case in those sought by the Appellants’ in the instant case, counsel submitted that the claims in the two suits are to all intent and purposes different from each other. It is submitted that the earlier suit was commenced by Originating Summons, while the current suit now on appeal was commenced by a Writ of Summons. Counsel submitted that at the lower Court, the Appellants denied the 1st Respondent’s contention that the Appellants’ suit was caught by the plea of res judicata. He argued that the Ruling of the lower Court cannot be supported in fact and
7
in law in the light of decided authorities of the Supreme Court as per the condition for the application of the principle of Estoppel per rem judicatam.
It is the submission of counsel that in order to determine whether the plea of estoppel per rem judicatam applies, the Court is permitted to study the pleadings, the proceedings and the judgment in the previous proceedings while also examining the reason for the judgment and other relevant facts to discover what was in issue in the previous proceedings. He cited AGBOGUNLERI v. DEPO (2008) ALL FWLR (PT 408) 240; HONDA P LACE HOLDING LTD v. GLOBE MOTORS HOLDING (NIG) LTD (2005) ALL FWLR (PT 282) 1863; JOSEPH AKOLE v. JOSHUA OJO ALONGE (2009) ALL FWLR (PT 468) 295.
Counsel contended that the earlier judgment in ID/741M/98 commenced by an Originating Summons against the Respondents therein challenged the Reports/Recommendations of the Standing Tribunal of Inquiry into Chieftaincy Matters in Lagos State in respect of Jagunmolu of Somolu while in the present matter, the Appellants herein instituted the action to ventilate their entitlements, interests and rights, and to demand for justice, as descendants of Bani and
8
Kamado Oworonsoki who were the grantees of the Pawu Land (now Oworonsoki Town) since 1869 by the Oloto Chieftaincy Family and over which they have been in continuous possession without let or hindrance. Counsel further argued that a person who is not a party to an action would not be bound by the result. He relied on BABATOLA v. ALADEJANA (2001) FWLR (PT 61) 1670 at 1683 paras C – D; OKOMU OIL PALM CO. LTD v ISERHIENRHIEN (2001) FWLR (PT 45) 670 at 690 paras G – H; OLADELE v. AKINTOLA (2011) ALL FWLR (PT 590) 1346 at 1361 paras B – C; KALIEL v ALIERO (1999) 4 NWLR (PT 5971 139 at 142. Counsel finally urged that the issue be resolved in the Appellants’ favour.
As earlier noted, the 1st Respondent nominated four issues that do not relate to the ground of appeal. However, I shall consider the argument of counsel with respect to the issue of estoppel as put forward in the brief. 1st Respondent’s counsel relied on SAMUEL FADIORA v. FESTUS GBADEBO & ORS (1978) 3 SC 219 to submit that once an issue has been raised and distinctly determined between the parties then, as a general rule, neither party can be allowed to fight that issue all over again either in
9
the same proceedings or subsequent proceedings. He also referred to BADA BEE v. HABIB MERICAN MOORDIN (1909) AC 615, per Lord Macnagthen; ADONE v. IKEBUDU (2001) 7 SC (PT III) 22 at 36 – 37 on the scope of the term ‘privies’. Citing DIM v. ENEMUO (2009) 4 – 5 SC (PT III) 48 at 82; MAKUN & ORS v FED UNL of TECH MINNA & 2 ORS (2011) 6-7 (PT V) 92 at 72; HON. BWACHA v HON. IKENYA & 2 ORS (2011) 1 – 2 SC (PT II) 186 at 202; LADEGA & ORS v. DUROSIMI & ORS (1978) 3 SC 91; ARUBO v. AILERU (1993) 9 NWLR (PT 200) 126, before submitting that issue estoppel bars re-litigation of actual issues that have already been determined by a Court of competent jurisdiction as part of a claim and that it is unnecessary for a person in whose favour estoppel operates to prove what has been asserted, admitted and proved. He submitted that a plea of res judicata is a bar to any further action and as evidence it is conclusive of the issue or point so raised. He relied on ABUBAKAR v. FMB (2003) 3 FWLR (PT 151) 1918 at 26; ALH. YUSUF v KODE (2002) 1 FWLR (PT 86) 464 at 8t – 87; OKPOSIN & ORS v. ASSAN & ORS (2005) ALL FWLR (PT 282) 1863 at 72 – 73; FGN & ANOR
10
v. CHU IFEGWU (2003) SC 274; ROZEN INV. LTD & ANOR v. NDIC (2007) All FWLR (PT 348) 823 at 48 – 49 to submit that styling and styling by parties of issues will not prevent the Court from stopping a party from trying the same cause of action even if the party in the subsequent suit was unnamed in the first and is a sleeping party (standing by).
On the part of the 2nd, 3rd and 4th Respondents, Counsel traced the genesis of the circumstances of the instant case as well as the Ruling of the lower Court at page 206 of the Records before submitting that judgment of the lower Court is not a total bar on the Appellant from ventilating their right to the Oba of Oworonshoki Chieftaincy stool except on appeal as a party interested. He referred to DAUDA v. ATTORNEY GENTRAL OF LAGOS STATE (2011) ALL FWLR (PT 600) 1206 at 1207 – 1208; OGBENI v. CHACHORO [2003] FWLR (PT 136) 926 at 941 – 942, paras F – A on the doctrine of res judicata. It is submitted that the institution of the suit No. ID/741M/98 by the 1st Respondent was to protect the interest of the Oworonshoki community (of which the Appellants belong) having been nominated as the Oba of Oworonshoki and that the
11
Appellant (sic) are therefore privy in the suit No.ID/741M/98 which was then instituted to protect their interest in Obaship of Oworonshoki Chieftaincy stool. While defining the term ‘privy’, counsel referred to BALOGUN v. AFOLAYAN (2002) FWLR (PT 85) 331 at 334. He submitted further that a careful reading of the reliefs sought in the two suits discloses that the subject matter of dispute is the Oba of Oworonshoki Chieftaincy Stool and that the Appellants are stopped by standing by. He relied on OMIYALE v. MACAULAY (2009) 3 – 4 SC 1 at 21 to submit that the 2nd to 4th Respondents have been able to show that the plea of estoppel per rem judicatam is applicable to the present case in that the parties, the issues and the subject matter in both the previous and present actions are the same.
Learned counsel for the 5th, Respondent while arguing the sole issue, submitted that it is entirely a question of facts whether the parties and their privies, the facts in issue and the subject matter of the claim are the same in both previous and present suit. He cited STANDARD BANK OF NIGERIA LIMITED v IKOMI (1972) 1 SC 164; IJALE v. A.G. LEVENTIS & CO LTD (1961) 2
12
SCNLR 386; MAKUN & ORS v FEDERAL UNIVERSITY OF TECHNOLOGY, MINNA (2011) 6 NMLR 290 at 307 to submit that the Court should take a holistic view and approach of the facts and judgment in the previous suit and more importantly to the point, which belong to the subject matter and which party exercising reasonable diligence might have brought forward. Relying on NDULUE v ONYEKWULUNNE (2002) FWLR (PT 110) 1995; ANNAH v USU (2010) LPELR 3777 (CA); FAGBOHUN v. IGANNA (2002) LPELR 20013 (CA); CLAY INDUSTRIES LTD v AINA (1997) 7 SCNJ 491, 509 to submit that the law on parties are clear and certain and that parties include the party (sic) on record and those who are directly interested in the case, their heirs, agents, representatives or privies. It is the submission of counsel that the decisions of BABALOLA v. ALADEJANA (supra); OKOMU OIL PALM CO. LTD v. ISHEHIENRHIEN (supra); OLADELE v. AKINTARO (supra);KALIEL v. ALIERO (supra) cited by the Appellants’ counsel are not apposite given the facts of this case.
In the Reply to 1st Respondent’s Brief, Appellants’ counsel submitted that the subject matter of the Appellants’ suit is not only for the stool of Oba
13
Oworonsoki. He contended that all the issues were not tackled and indeed could not have been tackled in Suit No. ID/741M/98 as the Appellants’ reliefs/issues were never before the Court in the Suit. It is also the contention of counsel that the authorities cited by the 1st Respondent are not relevant to the case in issue when the reliefs sought by the Appellants at the Lower Court are considered vis-a-vis the terms of reference of the Tribunal.
Replying to the Argument of the 2nd, 3rd and 4th Respondents, Appellants’ counsel adopts in its entirety, their submission in their Brief of Argument as their answer/argument on that issue.
I have carefully perused the record of appeal and the written submissions of the learned counsel for the parties in this appeal and the same has been reviewed in details above. The main contention in this appeal is whether the Lower Court was right in holding that the Appellants were estopped by the Judgment in ID/741M/98 when they were neither parties nor privies to any of the parties in that Suit?
While it is the contention of the Appellants’ counsel that the doctrine of res judicata and issue estoppel do not apply
14
to the instant case, the respective Respondents argue that the suit as instituted by the Appellants is caught by the doctrine. It is trite law that parties including their privies against whom judgment had been given in a previous suit are estopped from re-litigating the subject-matter of such suit in a subsequent suit. This principle of law is commonly known in legal parlance as the principle of res judicata. The rule is a limitation of estoppel per rem judicatam to parties and privies and it is simply an affirmation of the maxim res inter alios acta alteri nocere non potest. See AJIBOYE v. ISHOLA (2006) 13 NWLR (PT 998) 628; OKUKUJE v. AKWIDO (2001) 3 NWLR (PT 700) 261. In DANIEL TAYAR TRANS ENT. NIG. CO. LTD v. BUSARI (2011) LPELR -923 (SC) 26, paras D – G, the Apex Court, Per ONNOGHEN, JSC held:
“What then is the doctrine of res Judicata and, does it apply to the facts of this case? It is simply that once a dispute or matter has been finally and judicially pronounced upon or determined by a Court of competent jurisdiction, neither the parties thereto nor their privies can subsequently be allowed to re-litigate the matter because a judicial
15
determination properly handed down is conclusive until reversed by an appellate Court. The veracity of that decision or determination is also not open to a challenge nor can it be contradicted. The doctrine is grounded in public policy which stipulates that there must be an end to litigation in the latin maxim “interest republica at sit finis litium.”
It is imperative however to note that for a successful plea of res judicata, certain conditions must be established by the party relying on it viz: (1) the parties or their privies in both the earlier case and the case in which it is raised are the same: (2) the judgment relied upon is valid, subsisting and final: (3) the claim or issue in dispute in the proceedings are the same: (4) the subject matter of litigation in both cases is the same: (5) the Court that decided the previous suit is a Court of competent jurisdiction. See ABUBAKAR v B.O. & A.P. LTD (2007) 18 NWLR (PT 1066) 319; IKOTUN v. OYEKANMI (2008) 10 NWLR (PT 1094) 100; ABIOLA & SONS BOTTLING CO. LTD v. SEVEN-UP BOTTLING CO. LTD & 2 ORS (2012) LPELR – 9279 (SC).
The lower Court in the instant case held at pages 205 to
16
206 thus:
“In summarily resolving this issue in favour of the Applicant I note that the 1st Defendant/Applicant herein had in that suit basically claimed against the state government and its appropriate agencies being the appointing authorities for traditional rulers in the state a declaration of Court that he is the Person entitled to be the Oba of Oworonsoki as well as a mandatory injunction/order directing and compelling the aforesaid appointing authorities to approve and register the Chieftaincy Declaration regulating the appointment and, selection of Oba of Oworonsoki already made and submitted by the Chieftaincy Committee of Kosofe Local Government to the appointing authorities, I also note that Hon Justice Adeyinka in that suit in his Judgment found for the 1st Defendant/Applicant as prayed, it is also noteworthy that pursuant to the Judgment of Hon. Justice Adeyinka in the said suit, the Chieftaincy Declaration by the Kosofe Local Government has been accepted and registered by the appointing authorities since the 22nd September 2011 while the appointing authorities since the 22nd September 2011 while the 1st Defendant/Applicant was
17
appointed Oba of Oworonsoki by instrument dated 15/2/2000 as can be seen from exhibits to the affidavit in support of this application.”
It is instructive to note that the above finding of the learned trial judge was not challenged by the Appellants. Ipso facto, it is accepted as a correct appraisal of the exhibits and averments of the parties before the trial Court. Specifically, as it relates to how the principle of res judicata applies to the instant case, the learned trial judge continued at page 206 that:
?The foregoing being the case I agree with Applicant’s Counsel that this present suit as constituted is caught by the principle of Res Judicata thus effectively esttoping the Claimants from relitigating the issue of Obaship of Oworonsoki and related issues all which had been tackled by Hon. Justice Adeyinka in Suit No. ID/741M/98. I think that the Respondents Counsel got it wrong when arguing that Hon. Justice Adeyinka?s Judgment in the said suit could not be said to constitute Res Judicata against this present suit just because the present Claimants were not made parties to the said suit when all other ingredients necessary to
18
establish the plea of res Judicata are obviously present in both cases. That I think with due Respondents’ Counsel is a misconception of what would constitute Res Judicata in the circumstances. I think that had Learned, Counsel realized that because the Res in both Suit No. ID/741M/98 and this present suit is basically the Obaship of Oworonsoki and which for all intent and, purposes is the lawfully recognized traditional institution representing the people and natives of Oworonsoki then Counsel would have realized that the implication of Justice Adeyinka’s Judgment in Suit No. ID/741M/98 apart from granting 1st Defendant/Applicant’s prayers in that suit was to bind all the people and natives of Oworonsoki on the issue of the Obaship institution in Oworonsoki pending the setting aside of that Judgment by an appellate Court so that the only option left, for any dissatisfied person or native of Oworonsoki with the said Judgment of Hon. Justice Adeyinka even though not specifically made a party to that suit was in appeal against that Judgment as, a person interested in that institution rather than filing another suit to relitigate that same issue….?<br< p=””
</br<
19
The above decision of the learned trial judge is basically the reason for this appeal by the Appellants. Appellants have argued that the lower Court, in reaching its conclusion, failed to identify the “other ingredients necessary to establish the plea of res judicata (that) are obviously present in both cases.” I have earlier enumerated the conditions that must be satisfied before the principle of res judicata can apply in any given case. Therefore, the question is whether the learned judge correctly applied the principle to the instant case? Can it be said that the parties or their privies in both Suit No LD/741M/198 and the instant suit are the same?
?It is apparent from the record that the parties in the earlier suit include the 1st Respondent, Chief Bashiru Oloruntoyin Saliu, as applicant and the Military Administrator of Lagos State, the Attorney General of Lagos State as well as the Permanent Secretary Local Government Administration, Lagos State as Respondents. It is instructive to note that the Respondents in that suit were sued as agents of the State Government representing the interest of the citizens of the Lagos State Government in Suit No.
20
ID/741M/98 as well as for being the appointing and regulating authorities with respect to Chieftaincy affairs. In the instant case, the parties are the Appellants – Alhaji (Chief) Mustapha Durojaiye Ajisegiri, Madam Adiatu Bankole and Madam Sidikatu Oworonsoki (For themselves and on behalf of the Oworosoki Family) and Oba Bashiru Saliu Salami, Executive Governor of Lagos State, Attorney General of Lagos State, Commissioner of Local Government and Chieftaincy Affairs and Kosofe Local Government as 1st, 2nd, 3rd, 4th and 5th Respondents respectively. While in the instant case, the 1st Respondent was sued in his personal capacity as the present holder of the Oba title, the other Respondents just like in the earlier case were all sued as by virtue of the nature of office they hold and being custodian of the interest of the citizen, particularly the people of Oworonsoki town (same reason for which they were sued in the earlier suit). It is apparent that save for the Appellants, the parties in the earlier suit and those in the instant suit are the same. It goes without saying that the suit touches on the regulation of the traditional stool of Oworonsoki town and the
21
rightful person entitled to sit on the stool. To this extent, a privy as it relates to the instant case, include any person having interest as to the rightful person to be appointed to be the Oba of Oworonsoki town. In BALOGUN v AFOLAYAN (supra) at 334, it was held that parties in a suit is not only limited to named persons in the suit but also include those who have direct interest in the subject matter of dispute. Therefore, it is safe to conclude that the agents of the government who were sued as Respondents in both suits were acting on behalf of the people of Oworonsoki town so much more that the Obaship of Oworonsoki is a creation of the State and any holder of the stool is appointed by them. The fact that the Appellants were not named parties in the earlier suit does not preclude a finding and holding that they are parties to the suit as they have direct interest in the outcome of the said suit. Thus, the Appellants’ Counsel is misconceived in his argument that the parties are not the same in both suits.
Meanwhile, it is axiomatic that the judgment in Suit No ID/741M/98 is valid, subsisting and final having not been appealed against by any
22
party or person. Furthermore, parties are ad idem on the point that the judgment was given by a Court of competent jurisdiction.
Moreover, Appellants’ counsel disagreed that the issue/claim as well as the subject matter of the two suits are the same. I have taken a careful look at the Appellants’ Statement of Claim in the instant suit as well as the claim of the 1st Respondent in the earlier suit. While it is evident that the both suits were begun by different originating processes, that is, the instant suit was initiated by a Writ of Summons while the earlier suit No. ID/741M/98 was initiated by an Originating Summons, a calm scrutiny of the claims of the respective Plaintiff/Applicant, as the case may be, in both suit reveals that what is at stake is the stool of Oba of Oworonsoki Town. I believe that the Appellants’ counsel attempt at arguing that issues and subject-matter of both suits are not the same cannot be substantiated in the light of the various exhibits on record, particularly the juxtaposition of the claims of the Appellants in the instant suit and those of the 1st Respondent in suit No. ID/741M/98. For the purpose of clarity, the claims of
23
the 1st Respondent as Applicant in suit no. ID/741M/98 are as follows:
?(1) A DECLARATION that the Standing Tribunal of Inquiry into Chieftaincy Matters in Lagos State in respect of Jagunmolu of Somolu was right and correct in the Recommendations it made to the State Government viz;
(a) THAT FARONBI Ruling House be called upon AND their Elected, SON Alhaji Habi Ola Kazeem be the OBA of Somolu (OBASHUA OF BASHUA)
(b) THAT THE APPLICANT, Chief BASHIR OLORUNTOYIN SALIU (THE ATOYEGBE OF OWORONSOKI should be called upon to be the OBA of Oworonsoki in Kosofe Local Government Area of Lagos State, Nigeria.
(2) A DECLARATION THAT having recognised and Approved the creation of NEW OBA, that is, OBASHUA OF BASHUA OBA OF SOMOLU (which was not part of the Terms of Reference of Lagos State to the Tribunal) based on the Recommendation of the Chieftaincy Tribunal of Inquiry into the Chieftaincy Title of Jagunmolu of Somolu, The Respondents ought and are entitled to Approve the Creation of the OBA of Oworonsoki (A NEW OBA LIKE THAT OF SOMOLU) as Recommended by the same Tribunal)
(3) A DECLARATION that the Applicant is the person entitled to be
24
Recognised AND Approved as the OBA of Oworonsoki in the Kosofe Local Government Area of Lagos State.
(4) A CONSEQUENTIAL order COMPELLING the Respondents to Accept, Recognise AND Approve the Appointment of the Applicant as the NEW OBA OF OWORONSOKI in Kosofe Local Government Area of Lagos State.
(5) A MANDATORY INJUNCTION/ORDER DIRECTING AND COMPELLING the Respondents (ALL AND SINGULAR) to Approve AND REGISTER the Chieftaincy Declaration Regulating the Appointment and Selection of OBA of OWORONSOKI already made and submitted by the Chieftaincy Committee of Kosofe Local Government to the Respondents.”
In the instant suit, the Appellants claim against the Respondents as follows:
?(a) A DECLARATION that the Claimants families consisting of Bani and Kamodu Oworonsoki are the ones entitled to be recognised, and to produce an Oba or a Traditional Ruler for Oworonsoki Town in the Kosofe Local Government Area of Lagos State.
(b) A DECLARATION that the 1st Defendant is not entitled to be nominated, selected or appointed as the OBA of, Oworonsoki in the Kosofe Local Government Area of Lagos State, therefore his appointment as the Oba of
25
Oworonsoki by the 2nd to the 5th Defendants herein is wrongful, null and void; therefore, it should be set aside.
(c) AN ORDER of this Honourable Court, setting aside any of the purported, CHIEFTAINCY DECLARATION made under the Customary Law Regulating the selection of OBA OF OWORONSOKI CHIEFTAINCY TITLE in the KOSOFE LOCAL GOVERNMENT Area of Lagos State, being contrary to and a violation of the Customary Law of Oworonsoki, Kosofe and Lagos State in particular.
(d) AN ORDER of this Honourable Court directing the Lagos State Executive Council and/or the Kosofe Local Government to make a new Chieftaincy Declaration for the Obaship title of Oworonsoki that would, take cognisance of the rights and interests of the Claimants family.
IN THE ALTERNATIVE:
A DECLARATION that the OWORONSOKI FAMILY of Oworonsoki town, in the Kosofe Local Government Area of Lagos State, consisting of (i) Bani Oworonsoki; (ii) kamado Oworonsoki stocks are entitled to be made and recognised as
(i) Bani Ruling House; and
(ii) Kamado Rulling House, in respect of the OBASHIP TITLE of Oworonsoki, in addition to the existing Ruling House(s) made under
26
Customary Law of Oworonsoki Governing nomination, selection, appointment to the Stool of Oba of Oworonshoki in the Kosofe Local Government, aforesaid.”
As earlier noted, it is evident that reliefs 1, 2, 3, 4 and 5 of the earlier suit all touches on the reliefs as sought by the Appellants in the instant case or put in another way, the reliefs in the instant case are at best derivatives of the reliefs sought in suit No ID/741M/98. More so, it is beyond doubt that what is at stake in the two suits is the Obaship of Oworonsoki Town. By virtue of the two suits, both the 1st Respondent (as Applicants in Suit No ID/741/98) and the Appellants as Claimants in the instant suit claimed that they (or their families) are entitled to the stool.
Having being settled earlier in suit No ID/741M/98, per Hon. Justice Adeyinka, that the 1st Respondent be appointed and confirmed as the Oba of Oworonsoki, it stands to reason that the issue of Obaship of Oworonsoki cannot be re-litigated upon by the Appellants except, (as held by the learned trial judge) they appeal against the decision in suit No. ID/741M/98 which is a final judgment of a Court of competent
27
jurisdiction. A fortiori, as the Counsel for the 2nd, 3rd and 4th Respondents noted, the Appellants’ conduct while the earlier suit was before the lower Court invariably amounts to estoppel by standing by. The law is clear that where a party stands by and is content to see another ‘fight his battle’ for him in a matter that affects his interest but fails to apply to be joined as a party to the ongoing suit, he cannot be heard to subsequently complain as he is deemed to be bound by the outcome of the case and is thus estopped from re-litigating the same issue as determined in that case. While relying on its decision in ETITI v EZEOBIRI (1976) 12 SC 123, the Supreme Court, per OGUNTADE, JSC in OMIYALE v. MACAULAY [2009] 7 NWLR (PT 1147) 597; (2009) LPELR – 264C., pp 27 – 28, paras F – C held:
“…For the purpose of estoppel per rem Judicatam, ‘party’ means not only a person named as such but also one who being cognizant of the proceedings and, of the fact that party thereto is professing to act in his interest allows his battle to be fought by that party intending to take the benefit of the championship in the success… It therefore follows that if
28
an individual was content to stand, by while his battle was fought and concluded by another in same interest, he must be and is indeed, be bound, by the result and should, not be allowed to re-open the case…”
The Appellants herein are undoubtedly estopped from re-litigating the issue as to who is entitled to be recognised and appointed as the Oba of Oworonshoki Town or the Chieftaincy Declaration regulating the appointment and selection of Oba of Oworonsoki Town already made other than appealing against the final judgment of the lower Court in Suit No ID/741M/98 which has effectively determined the issue.
The sole issue in this appeal is resolved against the Appellants.
This appeal is therefore unmeritorious and hereby dismissed. The judgment of the High Court of Lagos State, per Onigbanjo J., delivered on 23/11/2013 is hereby affirmed. Costs assessed at N50,000.00 (Fifty Thousand Naira) are awarded in favour of the 1st Respondent.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, A.O. OBASEKI-ADEJUMO JCA. I agree with his Lordship’s reasoning and conclusions.
29
Estoppel per rem judicata may arise:
a. Where an issue of fact has been judicially determined in a final manner between the parties by a Court/Tribunal having jurisdiction, concurrent or exclusive in the matter and the same issue comes up directly in question in subsequent proceedings between the parties. This is sometimes referred to as “cause of action estoppel”.
b. Where the first determination was by a Court having exclusive jurisdiction and the same issue comes incidentally in question in subsequent proceedings between the same parties. This is known as “issue estoppel”.
c. Where an issue of fact affecting the status of a person or thing has been necessarily determined in a final manner as a substantive part of a judgment in rem of a Tribunal having jurisdiction to determine the status and the same issue comes directly in question in a subsequent civil or criminal proceeding between any parties whatever.
See the cases of Okukuje v. Akwido (2001) 3 NWLR (pt. 700) 261; Mohammed v. Olawunmi (1993) 4 NWLR (Pt. 287) 254. This last item c is relevant in the instant appeal. The issue of Obaship of Oworonsoki was the res in the earlier suit
30
and the subsequent suit. Being a judgment in rem with respect to Obaship of Oworonsoki, it binds all the people and natives of Oworonsoki and no other person from that town can relegate the issue except by appealing the judgment. I agree with my learned brother that the appeal lacks merit. I also dismiss it and abide by the consequential orders in the lead judgment including the order as to costs.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in draft the judgment delivered by my learned brother, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA. I agree with the reasoning and conclusions arrived at in the judgment.
As a way of re-emphasis, let me just state that even though the Appellants are not parties on record in suit ID/741M/98, the suit was instituted to protect the interest of the Oworonsoki community of which the Appellants are a part. They had direct interest in the subject matter of the dispute and cannot deny that they were not aware of the suit as at the time it was ongoing. They ought to have applied to be joined in the suit with No. ID/741M/98 rather than institute another proceeding after the earlier
31
suit had been decided and concluded, see BALOGUN V. AFOLAYAN (2002) FWLR (PT 85) 331, NWAKONOBI & ORS. V. UDEORAH & ORS. (2012) LPELR-9721 (SC)
Clearly, there is no merit in the appeal. I too dismiss the appeal and abide by the consequential orders made in the lead judgment.
32
Appearances:
CHIEF (DR) V. A. ODUNAYA WITH HIM, O. A. ALADEMETUN,AND A. L. ALADEKOMOFor Appellant(s)
YOMI OKUNNU FOR 1st, RESPONDENT WITH HIM, GBENGA OJO, R. O. SADIQ, M. F. TINUBU (MRS), AND OJOBO A.
E. T. ADARAMEWA FOR 2ND, 3RD, AND 4TH RESPONDENT
YEMI ADESINA WITH E. O. SIALAS (MRS)
SAMUEL SODIPO ESQ., FOR 5TH RESPONDENT
For Respondent(s)
Appearances
CHIEF (DR) V. A. ODUNAYA WITH HIM, O. A. ALADEMETUN,AND A. L. ALADEKOMOFor Appellant
AND
YOMI OKUNNU FOR 1st, RESPONDENT WITH HIM, GBENGA OJO, R. O. SADIQ, M. F. TINUBU (MRS), AND OJOBO A.
E. T. ADARAMEWA FOR 2ND, 3RD, AND 4TH RESPONDENT
YEMI ADESINA WITH E. O. SIALAS (MRS)
SAMUEL SODIPO ESQ., FOR 5TH RESPONDENTFor Respondent
