MR. TAJUDEEN AYINDE SUNMONU & ORS v. MR. NOSIRU DADA & ORS
(2019)LCN/12854(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of March, 2019
CA/IB/67/2004
RATIO
COURT AND PROCEDURE: RES JUDICATA
“…it is trite law that when a matter has been fully adjudicated upon by a Court of competent authority, the parties thereto are precluded from litigating the same matter again by a subsequent action. That the same situation applies to any issue which has been fully and finally determined by a Court of competent jurisdiction. The cases of Ntuks v. Nigerian Ports Authority (2007) 5 ? 6 SC 1; Ajiboye v. Alhaji Ishola (2006) 6 – 7 SC. 1 and Owonikoko v. Arowosaiye (1997) 10 NWLR (pt.523) 61 were cited in support.” PER HARUNA SIMON TSAMMANI, J.C.A.
JURISDICTION: INGREDIENTS TO DETERMINE JURISDICTION
“The issue here is therefore one of jurisdiction, for once an action has not been instituted in accordance with the conditions stipulated for the institution of that action, the Court would be deprived of jurisdiction to entertain the action. Similarly, where conditions have been stipulated to be satisfied before any process of Court can be filed, such conditions must be satisfied, otherwise the process will be incompetent and the Court will lack the competence or jurisdiction to determine on it. The Court would be said to have jurisdiction where the following ingredients are present: (a) The subject matter of the case must be within the jurisdiction of the Court and there is no feature preventing the Court from exercising jurisdiction;
(b) The Court must be properly constituted as regards numbers and qualifications of members of the Bench; and
(c) The case has been brought before the Court by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. All of the above essential elements must co-exist otherwise, the Court will have no jurisdiction to hear and determine the action or upon the process. See Madukolu & Ors v. Nkemdilim (1962)) 1 All NWLR 587; Mbah v. State (2014) LPELR 22729 (SC): Sun Insurance (Nig.) Plc v. Umez Engineering Construction Co. Ltd (2015) LPELR 24737 (SC) and Drexel Energy and Natural Resources Ltd & 2 Ors v. Trans International Bank Ltd & 2 Ors (2008) 18 NWLR (pt.1119) 399. In other words, failure to fulfill any of the above stated constituents of jurisdiction would automatically rob the Court of the jurisdiction to hear and determine the action.”PER HARUNA SIMON TSAMMANI, J.C.A.
LAND LAW: PROOF OF TRADITIONAL HISTORY
“For a Plaintiff to successfully prove title by traditional history, he must lead evidence to establish the following facts: (a) Who founded the land;
(b) How the land was founded, i.e by conquest, gift or other grant, first settlement, etc; and
(c) The names or particulars of the persons upon whom the land devolved from the founder to the present or last successors. The evidence led in support of those facts must form an unbroken chain without leaving any gaps or creating any mysterious or embarrassing linkages which cannot be explained. See Addah & Ors v. Ubandawaki (2015) LPELR 24266(SC); Anyafulu & Ors v. Meka & Ors (2014) 7 NWLR (pt.1406) 396 and Okereke & Anor v. Nwankwo & Anor (2003) 9 NWLR (pt.826) 592).” PER HARUNA SIMON TSAMMANI, J.C.A.
LEGAL PRACTITIONER: WHO CAN SIGN A COURT PROCESS
“The issue here is a very simple one, same having been settled by the Supreme Court and dutifully followed by this Court in a legion of cases. The law is that, any Court process required to be signed by a legal practitioner must be signed by a legal practitioner known to law. A legal practitioner is a natural person; a human being. Such person must have his name duly registered in the roll of legal practitioners kept at the Supreme Court of Nigeria Registry. See Sections 2(1) and 24 of the Legal Practitioners’ Act. Thus, in the case of Dankwambo v. Abubakar & Ors (2015) LPELR 25716 (SC), the Supreme Court, per Ariwoola, JSC said: This Court has held to be a legal practitioner, that person that has been called to the bar to practice as a barrister and solicitor of the Supreme Court of Nigeria as provided by Section 2(1), (2), (3) and (4) of Legal Practitioners Act. It is therefore not in doubt that an artificial person, such as a Firm of Legal Practitioners is not a human being and thus cannot practice as a legal practitioner. An artificial person has no legs, eyes, head or brain of its own and therefore cannot study in the university, attend Law School and be called to Bar to practice Law as a Barrister and Solicitor. It cannot therefore, sign any Court process as such legal practitioner. Therefore, only natural persons or human beings are capable of being called to Bar and only they can validly sign any Court Process. The law has therefore come to stay, that any Court Process required to be signed by a Legal Practitioner must be signed by a human being whose name is on the roll of legal practitioners kept in the Supreme Court Registry. See Nigerian Army v. Samuel & Ors (2013) 14 NWLR (pt.1375) 466; Okpe v. Fan Milk Plc & Ors (2016) LPELR 42562 (SC) and Braithwaite v. Skye Bank Plc (2012) LPELR 15532 (SC). The position of the law on the issue was brought to the fore in the case of Okafor v. Nweke (2007) 10 NWLR (pt.1043) 521.” PER HARUNA SIMON TSAMMANI, J.C.A.
JUSTICES
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria
Between
1. MR. TAJUDEEN AYINDE SUNMONU
2. MR. ADEOLU OLUWATOYIN AJAYI
3. MR. ADIO OLALEKAN BELLO
4. MR. SIKIRU ODUNLAMI
5. MR. IBRAHIM AKINDELE
(For themselves and on behalf of Isunbajo family)
-APPELLANTS/CROSS-RESPONDENTS Appellant(s)
AND
1. MR. NOSIRU DADA
2. MR. SAMUEL DADA
3. ALHAJI RAUFU AWAKAN
4. ALHAJI RASAKI AYINDE
5. AMUDA ARUBO
6. HASSAN ADEJOBI
7. WASIU ARUBO
(for themselves and on behalf of Dada Eso family)
-RESPONDENTS/CROSS-APPELLANTS Respondent(s)
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the Ogun State High Court of Justice holden at Abeokuta delivered by C. O. Jacobs (Chief Judge) on the 8th day of May, 2003 in Suit No: 54/94.
By an Amended Statement of Claim filed on the 22/1/98, the Appellants who were Plaintiffs claimed as follows:
(a) A Declaration that the Plaintiffs are entitled to the Statutory Right of Occupancy to all that piece or parcel of land situate, lying and being at Ijaliye, Ijako Area, Ota, Ado-Odo/Ota Local Government Area of Ogun State properly described and delineated on Plan No: LAA/OG9 A & B drawn by A. A. Lakanu (licensed Surveyor).
(b) A Declaration that the 1st, 2nd, 5th and 7th Defendants are descendants of Sanni Aina Ekun and the 3rd Defendant being customary tenants of the Plaintiffs have forfeited their right to be on the Plaintiffs’ land at Ijaliye, Ota, Ogun State.
(c) Possession of the land.
(d) The sum of N100,000.00k being special and general damages for trespass committed and still being committed by the 4th and 6th Defendants on the said Plaintiffs, landed property without the knowledge, consent and authority of the Plaintiffs’ family.
(e) Perpetual Injunction restraining the Defendants, their servants, agents or privies from committing further acts of trespass on the said Plaintiffs’ landed property.
Briefly, the Plaintiffs/Appellants/Cross-Respondents’ case as presented before the trial is that, the land in dispute forms part of a large expanse of land founded by their ancestor Aina Osunba-Ala, a farmer and great hunter who first settled upon and owned same. That having settled upon the land, he built an ILEBA thereon which he used for preserving bush meat for drying. That the said Aina Osunba-Ala also built a thatched house on the land where he used during the week as a resting place; and which place was later known as Ijaliye. It is also the Appellants/Cross-Respondents? claim that, their ancestor, Aina Osunba-Ala also cultivated the land by planting both economic and cash crops such as kolanuts trees, Cocoa trees, Oranges, Pineapples, etc. Furthermore, that Aina Osunba-Ala built a house now known as Isunbajo Compound, Ota where his wife and children lived.
The Appellants/Cross-Respondents also contended that, upon the demise of their ancestor, Aina Osunba-Ala, his children inherited the land and took effective possession thereof. That Osunba-Ala had also erected the Ogun Shrine and Iroko Shrine on the land which are being worshipped till date. That, the said Isunbajo family had about twenty-two (22) tenants on the land amongst whom were Sanni Aina Ekun, Akosile, Amos Shobiye, Omoyale, Fadipe Oloyede, Dare, Sanni, Isorosi Alli Balogun, Akinolu Awakan, etc. That, in 1945, one Sanni Aina Ekun trespassed on the Isunbajo land which culminated in Suit No: 305/47 before the Ota Grade A Customary Court wherein judgment was given in favour of the Appellants/Cross-Respondents. In other words, in the Suit No:305/47, title to the land in dispute was found in favour of the Appellants/Cross-Respondents. That there were other Suits between the Appellants/Cross-Respondents and the Respondents/Cross-Appellants in Suit Nos: 131/49, 48/50 and 28/51.
The Appellants/Cross-Respondents then contended that it was in 1993 when the Defendants/Respondents/Cross-Appellants began to meddle with the land in dispute by selling parts of the land to strangers. That when challenged, the Respondents/Cross-Appellants claimed ownership of the land through their father, one Sanni Aina Ekun.
The Respondents/Cross-Appellants on the other hand, contended that, they derive title to the land in dispute through their predecessor-in-title, one Awodoye who migrated from Ile-Ife with his wife to settle on the land many years ago. That the said Awodoye who was a hunter and a farmer used the land for hunting and farming. That Awodoye also erected huts on the land and also planted both food and cash crops on the land such as yams, cocoyams, pineapples, kolanuts and oranges. That the land later came to be known as Ijaniye after an incident between the founder of the land (Awodoye) and one Faluyi. That after the death of Awodoye, his children inherited him and have since been exercising several acts of ownership and possession over the land in dispute such as alienating, letting out, leasing out same to strangers and also building thereon without let or hindrance. That the Respondents/Cross-Appellants have farmlands, buildings and tenants on the land in dispute. The Respondents/Cross-Appellants pleaded that they will rely on Suit Nos: 305/47, 131/49, 48/50 and 28/51.
At the trial, the Appellants/Cross-Respondents called Nine (9) witnesses while the Respondents/Cross-Appellants called eight (8) witnesses. In all, a total of 21 exhibits were tendered and admitted at the trial, principal of which were Exhibits ‘N’, ‘O’ and ‘P’ which are judgments in respect of disputes between the parties in respect of Isunbajo land. At the close of evidence, the parties addressed the Court and in a considered judgment delivered on the 8/5/2003, the learned trial Judge dismissed the Plaintiffs/Appellants/Cross-Respondents’ case and entered judgment in favour of the Defendants/Respondents/Cross-Appellants. Being dissatisfied with the judgment, the Plaintiffs/Appellants filed this appeal while the Defendants/Respondents also Cross-Appealed.
The Original Notice of Appeal was dated and filed on the 7/8/2003. However, by leave of this Court granted on the 11/01/2017, the Notice of Appeal was amended. The extant Notice of Appeal is therefore the Amended Notice of Appeal dated the 19/6/16 and filed on the 19/9/16 but deemed filed on the 11/01/2017. It consists of six (6) Grounds of Appeal. Consequently, the parties filed and exchanged Briefs of Arguments.
The Appellants/Cross-Respondents’ Brief of Arguments dated the 15/5/17 was filed on the 17/5/2017. Therein, three issues were formulated for determination as follows:
1. Whether Appellants’ family, Isunbajo family having been declared the owners of the Isunbajo land by the trial Court in Suit No: 305/47 and Suit No: 131/49 and Sanni Aina Ekun (son of Dada Eso) adjudged a customary tenant therein with 21 other tenants all paying the customary tributes, another trial Court (not an appeal) can turn around years after without evidence of purchase or such to declare Sanni Aina Ekun and his progenitor/ancestor, Awodoye owners of Isunbajo land and further find that Appellants did not show evidence of payment of tributes.
[Grounds 2 and 3].
2. Whether from the foregoing and other evidence on record of acts of misconduct that the 1st, 2nd, 3rd, 5th & 7th Defendants who were privies by blood to Sanni Aina Ekun have sold part of the land in dispute and by setting up rival claim of ownership, the said Defendants have not forfeited their right to be on the land in dispute.
[Grounds 4 & 5].
3. Whether the trial Court had jurisdiction to give Respondent/Cross-Appellants judgment on the Further Amended Statement of Defence and Counter-Claim dated 31/5/2004 and filed on 24/7/2001 signed by (a non-legal practitioner, a law firm, (Carew, Elemide & Goodluck) and whether in view of the incompetent process, the trial Court should not have held that the case of the Plaintiffs was unchallenged in that circumstance and therefore required a minimal proof and considering the oral/documentary evidence before the Court, be entitled to judgment.
[Grounds 1 & 6]
The Respondents/Cross-Appellants’ Brief of Arguments is undated but filed on the 14/9/2018 and deemed filed on the 5/11/2018. Like the Appellants, the Respondents distilled three (3) issues for determination as follows:
(a) Whether the Error of Improper Endorsement by Counsel noted on the Further Amended Statement of Defence and Counter-Claim dated 31/5/1994 and Amended on 24/7/2001, was waived by Appellants at the trial Court.
(b) Whether Appellants have proved entitlement to the declarative relief claimed in the matter.
(c) Whether Res Judicata applied herein to prevent Appellants from re-litigating on the matter.
The Appellants/Cross-Respondents also filed a Reply Brief to the Respondents’/Cross-Appellants’ Brief of Arguments. It was dated the 31/12/2018 and filed on the 03/1/2019.
I have carefully reviewed the issues raised by the parties herein. Upon due consideration, I am of the view that this appeal be determined on the issues formulated by the Appellants. In doing that, I shall begin with issue three (3). Issues 1 and 2 will later be considered together. In the determination of issue three (3) 1 shall first consider the later part of the arguments of learned counsel for the Appellants which specifically relate to the issue of jurisdiction.
Now, it was argued by learned counsel for the Appellants at paragraphs 6.15 – 6.18 of the Appellants/Cross-Respondents’ Brief of Arguments that, the issue of jurisdiction is basic and fundamental, such that it can be raised at any time and manner by the parties or even suo motu by the Court. That a defect of jurisdiction is not only intrinsic but extrinsic to the entire process of adjudication. It was thus submitted that, where a Court has no jurisdiction to hear and determine a case, the proceedings will be a nullity ab initio no matter how well conducted and decided. On that note, learned counsel contended that, failure to commence a suit with a valid writ (Counter-Claim) goes to the root of the action since in that case the condition precedent to the exercise of the Court’s jurisdiction would not have been met.
Learned Counsel for the Appellant then cited the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 to submit that, for a Court of law to be clothed with jurisdiction, the subject matter of the dispute must fall within the items upon which the Court is empowered statutorily to entertain. That, the members of the Court or Tribunal must be properly constituted by reason of the qualification and number of its members. Furthermore, that it must be initiated by due process of law. It was then submitted that, the Supreme Court has held that, all Court processes must be signed by a cognizable legal practitioner whose name appears on the roll of legal practitioners at the Supreme Court. That only the name of a person who has been admitted to legal practice in Nigeria can validly sign a Court process. That a law firm is therefore not a person whose name appears on the roll as having been permitted to practice law in Nigeria. Sections 2(1) and 24 of the Legal Practitioners’ Act, and the cases of Okafor v. Nweke (2007) 1 NWLR (pt. 1043) 521 at 530; FBN v. Maiwada (2013) All FWLR (pt.661) 1433 at 1468 paragraphs E – G; Braithwaite v. Skye Bank Plc (2013) All FWLR (pt.664) 39 at 51 paragraphs A – C; Ogundele v. Agiri (2009) 18 NWLR (pt.1173) 219; SLB Consortium Ltd v. NNPC (2011) All FWLR (pt.583) 1902 and Oketade v. Adewunmi (2010) All FWLR (pt.526) 511 were cited in support.
Learned Counsel for the Appellant went on to submit that, in view of the cases cited above, the name Carew, Elemide & Goodluck, being a Law Firm, is not a person called to practice as a Barrister and Solicitor of the Supreme Court of Nigeria. We were accordingly urged to hold that, the Defence and Counter-Claim filed by the Respondents/Cross-Appellants, signed in the name of such Law Firm is incompetent and should be discountenanced. That if we so find, we should then hold that the Appellants/Cross-Respondents? claim was unchallenged and to allow the appeal.
In response, learned counsel for the Respondents/Cross-Appellants contended that, the Appellant’s Arguments on this issue is misconceived, particularly in the light of the decision of the Supreme Court in Heritage Bank Ltd v. Bentworth Finance (Nig.) Ltd (2018) 9 NWLR (pt. 1625) 420. It was then argued that the error in the endorsement on the disputed process is a mere irregularity which is not fundamental and therefore only voidable, the said process not being an originating process. That in Heritage Bank Ltd v. Bentworth Finance (Nig.) Ltd (supra), the Supreme Court made a distinction between an irregularity which is fundamental and one which is merely voidable, and therefore an irregularity which does not affect an originating process is not fatal and can be waived. That the facts of Heritage Bank Ltd case are apposite to those of the instant case.
Learned counsel for the Respondent went on to submit that, the disputed process is the Further Amended Statement of Defence and Counter-Claim and that the defence portion of it was filed to replace the Second Amended Statement of Defence dated 23/3/98 and therefore not an originating process. Learned counsel referred to Order 1 Rule 1 of the Ogun State High Court (Civil Procedure) Rules, 1987 to submit that an originating process is one which commences an action or suit. That there is no provision under the Ogun State High Court Rules (supra) which provides for commencement of an action through the filing of a Counter-Claim. That, though a Counter-Claim is treated as an independent action, it is correct to state that for that reason alone, it is an Originating Process.
It was therefore submitted that, in so far as a Counter-Claim cannot originate a Civil Proceeding, it is not an originating process. That in the circumstances, the error complained of did not affect a process which is not an originating process and therefore not a fundamental error which can void the process. It was then submitted that the aggrieved Appellants ought to have raised the objection timeously before the trial Court but failed to do so and proceeded to participate actively in the proceedings till judgment.
It was further contended by learned counsel for the Respondents/Cross-Appellants that, the Appellants/Cross-Respondents only raised the issue of irregularity of the dispute process for the first time in its Preliminary Objection dated 20/4/2016 after taking several steps after the appeal was entered in 2004 and several processes filed by the Appellants in pursuit of the appeal. It was then submitted that in the circumstances, it is now too late in the day for the Appellants to complain of the irregularity having condoned same throughout the trial proceedings. The cases of Amaechi v. INEC (2008) 5 NWLR (pt. 1080) 227 and Heritage Bank Ltd v. Bentworth Finance (Nig.) Ltd (supra) were cited to submit that, in the circumstances, the Appellants are deemed to have waived the right to complain about the irregularity.
Learned Counsel for the Respondent then contended that, if the argument of the Appellants on the dispute process is upheld, it would mean that the Respondents/Cross-Appellants would have no Counter-Claim before the Court. Furthermore, that the further pleadings of the Appellants factored on the issues raised in the disputed process would be technically void. That the evidence adduced at the trial in proof of those new facts pleaded in the disputed process would go to no issue. That in the circumstances, the judgment of the trial Court would have to be sifted carefully so as to eliminate those aspects based on the disputed process. We were therefore urged not to allow the Appellants to impugn the disputed process they had condoned in the trial Court. That in any case, if the disputed process is discountenanced for improper endorsement, the 2nd Amended Statement of Defence would become the extant defence of the Respondents/Cross-Appellants. We were accordingly urged to resolve this issue in favour of the Respondents/Cross-Appellants by holding that the Appellants had waived their right to complain.
In reply on points of law, learned counsel for the Appellants/Cross-Respondents contended that, the issue of improper endorsement of processes is a jurisdictional issue; and that parties cannot donate jurisdiction to a Court. That in the instant case, parties could not have donated jurisdiction to the Court below on the incompetent Counter-Claim signed by a non-legal practitioner. That in the circumstances, the issue of waiver does not arise as the issue of jurisdiction can be raised at any time, even for the first time in the Supreme Court. To strengthen her argument, learned counsel for the Appellants drew our attention to the Ruling of this Court in respect of this appeal, delivered on the 8/12/17 wherein the application of the Respondents to amend the disputed process was refused. That there is no appeal against that Ruling.
Learned counsel for the Appellants/Cross-Respondents contended that, the process involved here is the Further Amended Statement of Defence and Counter-Claim filed on the 24/7/2001 but disagreed with the Respondents that the process is not an originating process. That in any case, the defence portion of the disputed process cannot be separated from the Counter-Claim as both were filed under the only one and same signature. That the Heritage Bank Ltd case relied upon by the Respondents is not relevant to this case as it dealt with a Statement of Claim. Furthermore, the issue of whether a Counter-Claim is an Originating Process was answered by this Court in the Ruling of 8/12/2017. We were accordingly urged to resolve this issue in favour of the Appellants/Cross-Respondents.
The issue here is a very simple one, same having been settled by the Supreme Court and dutifully followed by this Court in a legion of cases. The law is that, any Court process required to be signed by a legal practitioner must be signed by a legal practitioner known to law. A legal practitioner is a natural person; a human being. Such person must have his name duly registered in the roll of legal practitioners kept at the Supreme Court of Nigeria Registry. See Sections 2(1) and 24 of the Legal Practitioners’ Act. Thus, in the case of Dankwambo v. Abubakar & Ors (2015) LPELR 25716 (SC), the Supreme Court, per Ariwoola, JSC said:
This Court has held to be a legal practitioner, that person that has been called to the bar to practice as a barrister and solicitor of the Supreme Court of Nigeria as provided by Section 2(1), (2), (3) and (4) of Legal Practitioners Act
It is therefore not in doubt that an artificial person, such as a Firm of Legal Practitioners is not a human being and thus cannot practice as a legal practitioner. An artificial person has no legs, eyes, head or brain of its own and therefore cannot study in the university, attend Law School and be called to Bar to practice Law as a Barrister and Solicitor. It cannot therefore, sign any Court process as such legal practitioner. Therefore, only natural persons or human beings are capable of being called to Bar and only they can validly sign any Court Process. The law has therefore come to stay, that any Court Process required to be signed by a Legal Practitioner must be signed by a human being whose name is on the roll of legal practitioners kept in the Supreme Court Registry. See Nigerian Army v. Samuel & Ors (2013) 14 NWLR (pt.1375) 466; Okpe v. Fan Milk Plc & Ors (2016) LPELR ? 42562 (SC) and Braithwaite v. Skye Bank Plc (2012) LPELR ? 15532 (SC). The position of the law on the issue was brought to the fore in the case of Okafor v. Nweke (2007) 10 NWLR (pt.1043) 521.
In the Okafor v. Nweke case (supra), the Applicants had filed a Motion on Notice before the Supreme Court seeking five (5) reliefs as follows: (1) Extension of time within which to apply for leave to Cross-Appeal; (2) Leave to Cross-Appeal; (3) Extension of time within which to file the Notice and Grounds of Cross-Appeal; (4) Deeming the Notice and Grounds of Cross-Appeal as having been properly filed and served; and (5) Leave to file and argue Grounds of mixed law and facts. All the processes were signed in the name of J. H. C. Okolo, SAN & Co. Upon objection, the Supreme Court relied on Sections 2(1) and 24 of the Legal Practitioners’ Act to hold per Onnoghen, JSC (as he then was) that all those processes were incompetent having been signed by the Firm of J.H.C. Okolo, SAN & Co. See also SLB Consortium Ltd v. NNPC (2011) 9 NWLR (pt. 1252) 317 at 331 – 332 paragraphs H & A. The controversy raised by the decision of the Supreme Court was laid to rest by a FULL PANEL of the Supreme Court in F.B.N Plc v. Maiwada (2013) 5 NWLR (pt. 1348) 444 wherein after taking submissions from amici curiae, the Supreme Court found the decision in Okafor v. Nweke (supra) to be good law.
It would be seen, as held by Fabiyi, JSC who read the lead judgment in F.B.N. v. Maiwada (supra), that the provisions of Sections 2(1) and 24 of the Legal Practitioners’ Act remain the law until amended or even replaced. In Okafor v. Nweke (supra), My Lord Oguntade, JSC at P. 534 of the Report said:
Let me say it bluntly that where the provisions of an Act like the Legal Practitioners Act is at play, as herein, provisions of the Rules of Court which are subject to the Law must take the side line.
It would be seen therefore that the issue involved is not one of mere procedural requirement. It is one of substantive law as required by the Legal Practitioners’ Act.
It has been argued by learned counsel for the Appellant that the disputed process is not an initiating or originating process and therefore not affected by the decision in Okafor v. Nweke (supra). It is not in doubt that the process involved here is the Further Amended Statement of Defence and Counter-Claim filed on the 24/7/2001. Having read the authorities, I am of the view that the law is not restricted to initiating processes only. It applies to all processes required to be signed by a legal practitioner. Thus, in the case of Egunjobi & Ors v. Oluwo & Ors (2016) LPELR ? 41950 (CA), I held as follows:
I find it necessary to draw the attention of learned counsel to the fact that it is not only originating processes filed by a Legal Practitioner that must be prepared and/or signed by such Legal Practitioner, but all Court processes required to be signed or prepared by such Legal Practitioner. It therefore means that, Motions and all other applications required to be prepared or signed by a Legal Practitioner must be signed in the Legal Practitioner’s name, otherwise they are incompetent. In that respect, Statements of Claim or defence, must necessarily be signed in the name of the Legal Practitioner who prepared it, if it purports on its face to have been prepared and/or signed by a Legal Practitioner
It therefore means that, the Further Amended Statement of Defence and Counter-Claim which purported to have been signed by a legal practitioner must comply with the requirements of the law. In other words, the process must be manifestly seen to have been signed by a legal Practitioner known to law.
In the instant case, the Further Amended Statement of Defence and Counter-Claim at page 145 of the Record of Appeal was signed in the name of Carew, Elemide & Goodluck. It is not in doubt that Carew, Elemide & Goodluck is not the name of a person whose name is on the roll or has been called to the Nigerian Bar to practice as a legal practitioner. It is undoubtedly the name of a Law Firm under which the trio of Carew, Elemide & Goodluck practice law. As stated earlier and from the authorities cited, any Court process signed in the name of a Law Firm is incompetent ab initio, null and void. The defect is so fundamental being a condition precedent to the validity of such process.
The issue here is therefore one of jurisdiction, for once an action has not been instituted in accordance with the conditions stipulated for the institution of that action, the Court would be deprived of jurisdiction to entertain the action. Similarly, where conditions have been stipulated to be satisfied before any process of Court can be filed, such conditions must be satisfied, otherwise the process will be incompetent and the Court will lack the competence or jurisdiction to determine on it. The Court would be said to have jurisdiction where the following ingredients are present:
(a) The subject matter of the case must be within the jurisdiction of the Court and there is no feature preventing the Court from exercising jurisdiction;
(b) The Court must be properly constituted as regards numbers and qualifications of members of the Bench; and
(c) The case has been brought before the Court by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
All of the above essential elements must co-exist otherwise, the Court will have no jurisdiction to hear and determine the action or upon the process. See Madukolu & Ors v. Nkemdilim (1962)) 1 All NWLR 587; Mbah v. State (2014) LPELR 22729 (SC): Sun Insurance (Nig.) Plc v. Umez Engineering Construction Co. Ltd (2015) LPELR 24737 (SC) and Drexel Energy and Natural Resources Ltd & 2 Ors v. Trans International Bank Ltd & 2 Ors (2008) 18 NWLR (pt.1119) 399. In other words, failure to fulfill any of the above stated constituents of jurisdiction would automatically rob the Court of the jurisdiction to hear and determine the action.
The complaint of the Appellants/Cross-Respondents here is that the Further Amended Statement of Defence and Counter-Claim was signed in the name of Carew, Elemide & Goodluck which is a Law Firm. That the said process is therefore incompetent null and void. It is indeed the law as found out earlier in the course of this judgment, that such a process is null and void and therefore the Court could not have the jurisdiction to act on it in determining the dispute between the parties. Such a defect in the Court process would be fatal to any proceeding or decision based on such incompetent process. The issue is fundamental and goes to the root of the jurisdiction of the Court to act on such process. The issue being a fundamental one bordering on jurisdiction, can be raised at any time, even for the first time before the Supreme Court, and certainly before this Court. In that respect, the issue of waiver does not arise as no party (and even the Court itself) can confer on the Court jurisdiction where non exists. See Chacharos & Anor v. Ekimpex Ltd & Ors (1988) LPELR ? 840 (SC); Petrojessica Enterprises Ltd & Anor v. Leventis Technical Co. Ltd (1992) LPELR ? 2915 (SC); Elabanjo & Anor v. Dawodu (2006) 15 NWLR (pt. 1001) 76 and Kotoye v. Saraki & Anor (1994) 7 NWLR (pt.357) 414.
The issue here as determined by the Supreme Court in Okafor v. Nweke (supra) is not one of procedural irregularity but one of substantive law, to wit: the Legal Practitioners? Act. Thus the issue being statutory and therefore substantive cannot be waived unlike procedural requirement which can be waived. See Fawehinmi Construction Co. Ltd v. O. A. U. (1998) 6 NWLR (pt.553) 171; A.G. Kwara State & Anor v. Adeyemo & Ors (2016) LPELR ? 41147 (SC) and Ayantuga & Anor v. Adedoyin (2006) LPELR 11761 (CA). Thus in Ndayako v. Dantoro (2004) 13 NWLR (pt. 889) 187 at 217 the Supreme Court per Edozie, JSC held that:
It is noteworthy that a distinction must be drawn between two types of jurisdiction, viz ‘ jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law. Whilst a litigant can waive the former, no litigant can confer jurisdiction in the Court where the Constitution or Statute or any provision of the common law says that the Court shall have no jurisdiction.’
It would be seen therefore that, the issue here being one of substantive law, could not be waived. It has therefore been properly raised before this Court.
Learned Counsel for the Respondent/Cross-Appellant has also cited and relied on the case of Heritage Bank Ltd v. Benworth Finance (Nig.) Ltd (supra). In that case, the irregularity complained about affected the Statement of Claim which was signed by a Law Firm. The Supreme Court in that case, made a distinction between a procedural jurisdiction and substantive jurisdiction to hold that the irregularity which affected the Statement of Claim was merely voidable and thus not fatal to the entire proceedings based on such irregular process. The Supreme Court, per Eko, JSC arrived at its decision on the premise that a Statement of Claim is not an originating process. In the instant case, the process involved is the Further Amended Statement of Defence and Counter-Claim. It is not in doubt that a Counter-Claim is in the same status as the Statement of Claim which initiates or originates the claim of the Respondent. It can therefore be rightly classified as an originating process. This was settled by the Ruling of this Court delivered on the 8/12/2017 in a Motion filed by the Respondents where it was held that:
Even if a Counter-Claim as submitted by the Applicant cannot originate a Civil Claim in the sense of beginning the process, as it is usually endorsed at the foot of the Statement of Defence but once a Counter-Claim is made, it has commenced a new claim against the parties Counter-Claimed against which parties.. may include parties not originally parties to the suit.
To that end, it was held that a Counter-Claim is an originating process and a judgment entered in favour of a Counter-Claimant based on a Counter-Claim signed by a non-legal practitioner must be declared a nullity. There is no appeal against this Ruling and therefore the Respondents are bound thereby. Furthermore, the Further Amended Statement of Defence and the Counter-Claim form one single process or document. The Further Amended Statement of Defence cannot be validly excised from the Counter-Claim without doing violence to the whole document since the process is one single document. In that respect, I hereby hold that the Further Amended Statement of Defence and Counter-Claim signed in the name of the Firm of Carew, Elemide & Goodluck is incompetent, null and void.
As stated earlier in the course of this judgment, where a Court process is signed in the name of a Law Firm, it will be void and thereby liable to be set aside. It therefore means that any decision rendered on such defective and /or invalid process is a nullity. See Okpe v. Fan Milk Plc & Anor (2016) LPELR ? 42562 (SC); Hamzat & Anor v. Sanni & Ors (2015) LPELR ? 24302 (SC) and Okarika & Ors v. Samuel & Anor (2013) LPELR ? 19935 (SC). On that note, I hereby order that the Further Amended Statement of Defence and Counter-Claim filed on 24/7/2001 be struck out for being incompetent and a nullity. In the same vein, the decision of the trial Court based on the defective or invalid Counter-Claim cannot stand. It was given without jurisdiction. It is accordingly set aside. On that note, this issue is resolved in favour of the Appellants.
I now proceed on issues 1 and 2 which should be taken together. Arguing therein, learned counsel for the Appellants/Cross-Appellants contended that Exhibits ‘N’, ‘O’ and ‘P’ are judgments in previous suits between the predecessors of the Appellants and some members of the Respondents? family in respect of the Isunbajo family land. That Exhibit ‘N’ is a judgment in Suit No: 305/47 between J. B. Odunlami v. Sanni Aina Ekun delivered on the 28/4/1947. That the said judgment granted declaration of ownership of the land in dispute to the Isunbajo family, though the Court refused to order for an injunction against the Defendant therein. That, the Court however directed the said Defendant (Sanni Aina Ekun) to present the other tenants on the land to the Isunbajo family. Learned Counsel then submitted that, Suit No: 305/47 had determined ownership of the land (Ijaliye land) and ordered the 21 tenants on the land to atone to the Isunbajo family but they did not. That the Defendant in the suit; Sanni Aina Ekun did not appeal against the declaration by the Court of title in favour of the Appellants. It was thus conceded that the appeal against refusal of injunction was rightly dismissed since the Defendants were shown to be lawfully on the Isunbajo farmland.
Learned Counsel for the Appellants/Cross-Respondents also submitted that, the judgment in Suit NO: 305/47 (Exhibit ‘N’) still subsists and is binding on the parties therein and their privies. It was then submitted that, being an existing and subsisting judgment in relation to the Ijaliye farmland, the trial Court had a duty to give effect to it. That the learned trial Judge found the following facts as incontrovertibly established:
(i) That the land in dispute is the same land that had been litigated upon between the parties in the earlier suits. That the land is referred to as Ijaliye or Ijaniye.
(ii) That Sanni Aina Ekun who litigated on the land in dispute with the Appellants? predecessors-in-title was the father of the PW1, and 1st and 2nd Defendants/Respondents.
(iii) That the Appellants are members of Isunbajo family while the 1st, 2nd, 5th and 7th Respondents are members of Sanni Aina Ekun family and the 3rd Respondent is a descendant of a Customary tenant.
That, at page 195 lines 6 ? 8 of the Record of Appeal, the learned trial Judge held that:
Having delivered the ruling on res-judicata in this case, I believe the most important issue to resolve is the relationship of the present Defendants to Sanni Aina Ekun.
It was then contended that the Respondents pleaded their genealogy in relation to Sanni Aina Ekun who was Defendant in Suit NO: 305/47 (Exhibit ?N?) and 1st Respondent in Suit NO: 131/49 (Exhibit ‘O’), in paragraphs 28(e) – (j) of the Amended Statement of Claim. That it was established by evidence that Sanni Aina Ekun was the father of PW1 and DW7; and DW7 begat the 5th & 7th Defendants/Respondents; and also uncle to the 1st and 2nd Respondents.
Learned Counsel for the Appellants then contended that, in view of the Ruling of the trial Court on the 24/10/95, what was left for the learned trial Judge to declare that the 1st, 2nd, 3rd, 5th and 7th Respondents being descendants/privies of Dada Eso the father of Sanni Aina Ekun, were bound by the decision in Suit No: 305/47. That being customary tenants on the Ijaliye land, they have committed misconduct by denying the title of their overlord and by selling parts of the land to strangers without the consent of the owners and thereby forfeited their right on the land. Furthermore, that in view of the foregoing, there was no need for proof of payment of tribute.
Learned Counsel for the Appellants also argued that, the judgments in Exhibits ‘N’ and ‘O’ being subsisting are binding on the parties thereto and their privies, and therefore, it was incumbent on the trial Court to give effect to them. That in doing so, the trial Court needed not go into or re-open the issue of ownership afresh since the issue of ownership has been decided by Exhibits ‘N’, ‘O’ and ‘P’. That instead of confining itself to resolving the issue of the relationship of the Respondents to Sanni Aina Ekun, the learned trial Judge went into a wild goose chase by reopening the issue of title. It was then submitted that, the Respondents are privies to Sanni Aina Ekun being descendants of Dada Eso. In other words, that having ruled on res-judicata on 24/10/95, all that was left for the trial Court to do was to receive evidence to determine the relationship of the Respondents to Sanni Aina Ekun who had been adjudged to be a customary tenant of the Isunbajo family. That the trial Court therefore constituted itself into an Appellate Court over the subsisting judgments in Exhibit ‘N’ upon which Sanni Aina Ekun did not appeal.
Learned Counsel for the Appellants wondered how Sanni Aina Ekun who lost to the Appellants in Suit No: 305/47, became the absolute owner of the land in dispute as erroneously found by the trial Court. That in Suit NO:305/47, it was found that the Isunbajo family are the owners of the land in dispute while Sanni Aina Ekun & 21 others were tenants of the Isunbajo family. That in any case, long possession cannot ripen into full ownership by the Respondents because in customary law, long possession by a customary tenant does not confer absolute title in the land to the tenant. The cases of Kasali v. Lawal (1986) NWLR (pt.28) 305, Akinloye v. Eyiyola (1968) NWLR 92 and Isiba v Hanson (1967) 1 All NLR 8 were cited in support. Learned Counsel then cited the case of Muemue v. Gaji (2000) FWLR (pt. 16) 2764 at 2781 to similarly submit that Limitation Law does not also apply to any Claim founded on customary land tenure. We were then urged to hold that the learned trial Judge erred in importing the concept of limitation law into a purely customary law concept.
Learned Counsel for the Appellants went on to submit that, where it has been determined that the Respondents are customary tenants of the Plaintiffs, but later refused to pay customary tribute, the correct order would be declaration of title and forfeiture of the customary tenancy and not for damages for trespass and injunction. The cases of Adeleke v. Adewusi (1961) All NLR 37 at 42; Ekwere v. Iyiegbu (1972) 6 S.C 116 Bayowa Akinkuwo v. Fafiuroju (1965) NMLR 349 and Aromire v. Awoyemi (1972) 2 S.C 1 were cited in support. The case of Makinde v. Akinwale (2000) FWLR (pt.25) 1562 was cited to further submit that, the Respondents having alienated the land without the consent of the owners and having set up a rival claim against the Appellants, have denied and challenged the title of their overlords and therefore subject to penalty by way of forfeiture. The cases of Chikere v. Okegbe (2000) FWLR (pt. 22) 1005 at 1015; Suleman & Anor v. Hannibal Johnson (1951) 13 WACA 213 at 215 and Sagay v. New Independent Rubber Ltd (1977) S.C. 143 at 158 were also cited in support. On that note, we were urged to resolve those issues in favour of the Appellants/Cross-Respondent.
In response, learned counsel for the Respondents/Cross-Appellants contended that, the primary relief claimed by the Appellants/Cross-Respondents was for declaration of title. That in that respect, they had the burden to discharge before the declaration could be made; and that the burden reposed on them does not shift. Furthermore, that the Appellants/Cross-Respondents must rely on the strengths of their own case and not on any weakness in the defence. The case of Eguamwense v. Amaghizemwen (1993) 9 NWLR (pt. 315) 1 at 39 paragraph C – F was cited in support and to submit that the Appellants failed to discharge that burden of proof in the instant case.
Learned Counsel for the Respondents/Cross-Appellants then contended that there are five ways of proving title to land in Nigeria as set out by the Supreme Court in Idundun v. Okumagba (1976) 1 NMLR 200. That one of such ways is proof by evidence of traditional history, and that where there is conflict in the traditional histories given by the parties, the Court must resolve which of the traditional histories is more probable by resort to the principle laid down in Kojo II v. Bonsie. The case of Ogbuokwelu v. Umeanafunkwa (1994) 4 NWLR (pt. 341) 676 at 693 paragrahs C ? D & B was cited in support. That applying the principle in Kojo II v. Bonsie (supra), it is clear that the historical evidence proffered by the Respondents/Cross-Appellant is more probable since they are currently in possession of the land in dispute. That, in any case, non of the Appellants testified that they live, farm or have built houses on the land in dispute.
Learned Counsel for the Respondents also submitted that, apart from the traditional history, the Appellants had relied on acts of ownership and long possession but that by the Supreme Court decision in Ohiaeri v. Akabeze (1992) 2 NWLR (pt.221) 1 at 28 paragraphs. B ? C, evidence of numerous and positive acts of possession is only relevant to proof title in the absence of traditional evidence. The cases of Adeniran v. Alao (1992) 2 NWLR (pt.223) 350 and Saidi v. Akinwunmi (1956) 1 FSC 107 were then cited to urge us to discountenance the evidence on acts of possession adduced by the Appellants, they having first relied on traditional history especially when long possession of the land in dispute by the Respondents/Cross-Appellants had since been acknowledged in Suit No. 305/47.
On the issue of customary tenancy, learned counsel for the Respondents/Cross-Appellants contended that the Respondents had joined issue with the Appellants/Cross-Respondents in their 2nd Amended Statement of Defence by specifically averring in paragraph 6 of the 2nd Amended Statement of Defence that, Sanni Aina Ekun was not a customary tenant of the Appellants on the land in dispute. That the claim on forfeiture was only introduced into the pleadings by the Appellants via their Amended Writ of Summons filed after the close of evidence and therefore, the learned trial Judge did not give it the needed attention but considered the claim of the Appellants claim to the land in dispute. It was then contended that, the Appellants’ reliance on Exhibit ‘N’ (Suit No. 305/47) as establishing the alleged customary tenancy of the 1st, 2nd, 5th and 7th Respondents is misplaced because the decision in Exhibit ‘N’ was subject to litigations and appeals in Exhibits ‘O’, ‘P’ and ‘Q’. That in Exhibit ‘O’ the decision in Exhibit ‘N’ that Sanni Aina Ekun should present his so called tenants for registration was specifically overruled. Furthermore, that the Exhibits ‘P’ and ‘Q’ (Suit Nos. 48/59 and 28/51) which were appeals against Exhibit ‘O’.
Learned Counsel for the Respondents/Cross-Appellants then submitted that, from the foregoing, the Appellants’ contention that the previous litigations established their title to the land in dispute is a deliberate mischief. That Exhibits ‘N’, ‘O’, ‘P’ and ‘Q’ were not on the ownership of the land as between the progenitors of the Appellants and that of the 1st, 2nd, 5th and 7th Respondents/Cross-Appellants. That the correct interpretation of those decisions is that J. B. Odunlami (Appellants’ progenitor) failed to get Sanni Aina Ekun (1st, 2nd, 5th and 7th Respondents? progenitor) to eject those working on the land in dispute when Sanni Aina Ekun refused to comply with the primary decision of the Ota Native Court in Exhibit ‘N’.
It was further submitted by learned counsel for the Respondents/Cross-Appellants that, before there can be forfeiture, there must be a subsisting customary tenancy because forfeiture is an incident arising from the tenancy. The case of Olagbegi v. Ogunoye (1996) 5 NWLR (pt.448) 332 was cited in support and to further submit that, the Appellants not only failed to plead and lead evidence as to the nature of the tenancy granted the Respondents/Cross-Appellants but failed discharge the burden of proof placed on them in that regard. The case of Agomuo v. Aguwa (1992) 1 NWLR (pt.216) 236 at 247 paragraph E was cited in support and to submit that failure to plead and lead evidence is fatal to the Appellants’ claim for forfeiture. We were accordingly urged to resolve this issue in favour of the Respondents/Cross-Appellants.
On the issue of res judicata, which learned counsel for the Respondents/Cross-Appellants contend is the kernel of the Cross-Appeal, it was submitted by learned counsel that, the interlocutory ruling of the trial Court delivered on the 24/10/95 decided vital issues in this case citing the said Ruling at pages 30E 30I, learned counsel argued that, not having challenged that Ruling by way of appeal, the Respondents/Cross-appellants are entitled to rely on the previous judgments on the disputed land in order to trace their genealogy to either Sanni Aina Ekun or the 21 other established litigants in Suit No. 131/49. That the learned trial Judge appreciated the point when he held at page 195 lines 5 – 8 of the Records as follows:
Having delivered the ruling on res judicata in this case, I believe the most important issue to resolve is the relationship of the present Defendant to Sanni Aina Ekun.
It was then submitted that, having thus observed correctly, the learned trial Judge inadvertently omitted to resolve the issue of the relationship of the Respondents/Cross-Appellants to Sanni Aina Ekun. That interestingly that missing link was supplied by both the Appellants and the Respondents as the Appellants and their witnesses severally mentioned Sanni Aina Ekun and related him to the 1st and 2nd Respondents, in both their claim and evidence in Court. Referring specifically to the testimony of PW1, learned counsel submitted that, the Appellants themselves traced and confirmed the Respondents/Cross-Appellants? lineage to both Sanni Aina Ekun and Dada Eso thereby supplying the missing link in the interlocutory Ruling delivered on the 24/10/95. That, the Respondents/Cross-Appellants similarly pleaded and led evidence of their family genealogy by emphasizing Sanni Aina Ekun as their ancestor.
Learned Counsel for the Respondents/Cross-Appellants then cited the case of Abubakar v. F.M.B. Ltd (2002) 4 NWLR (pt.756) 29 at 42 to further submit that, from the totality of the evidence adduced before the lower Court, the Respondents/Cross-Appellants are privies of Sanni Aina Ekun who had successfully litigated on the land in dispute against the successors in title of the Appellants/Cross-Respondents. Having considered the principles of estoppel per rem judicatam, learned counsel contended that, it had been determined in the Ruling of trial Court delivered on the 24/10/95 (see page 194 lines 1 ? 3 of the records) that, Respondents/Cross-Appellants are indeed the same Defendants in Suit No. 305/47, 131/49 and 28/51 (Exhibits ‘N’, ‘O’ and ‘P’). That as conceded by the Appellants/Cross-Respondents in their Brief of Arguments, those previous decisions are final; and the land litigated upon in this appeal is the same as that litigated in the previous suits. We were accordingly urged to resort to Section 15 of the Court of Appeal Act to making such findings and conclusions that the trial Court could have made but failed to do so. The case of Peter v. Okoye (2002) 3 NWLR (pt.755) 529 at 551 ? 552 paragraphs H ? A was cited in support and to urge us to resolve this issue against the Appellants/Cross-Respondents by holding that res judicata applies in this case as to prevent the Appellants from re-litigating the matter.
In reply on points of law, learned counsel for the Appellants/Cross-Respondents contended that the Appellants supported their case with documentary evidence such as Exhibits ‘M’, ‘N’, ‘O’ and ‘P’. That Exhibit ‘N’ is the subsisting judgment in Suit No. 305/47 which decided that Ijaliye land belong to Isunbajo family. That the genealogy of the Respondents/Cross-Appellants was traced to Sanni Aina Ekun who was Defendant in Suit No. 305/47 and 1st Defendant in Exhibit ?O?. That in Exhibits ‘N’, ‘O’, ‘P’ and ‘Q’ Sanni Aina Ekun and his father Dada Eso were pronounced customary tenants who paid dues together with other tenants who were also paying customary dues had been on the land for about 25 years and therefore, it would be unfair to the Appellants? family to send them away.
Relying on the case of A.G Rivers State v. A.G Akwa Ibom (2011) 29 LRN 1, learned counsel for the Appellants/Cross-Respondents contended that, the law is that a party cannot approbate and reprobate at the same time. That the parties were ad idem as regards the documents tendered by the Appellants on long possession, customary tenancy and payment of dues. Specifically, that the Respondents also relied on the Appellants? exhibits on long possession; and that the documents established that the Respondents had been on the land for long and should therefore be left alone. It was thus contended that, the Respondents cannot now act contrary to those previous judgments by turning around to claim ownership. Furthermore that, by relying in Suit No. 305/47, the Respondents have acknowledged their acts of long possession through customary tenancy.
On the issue of res judicata, learned counsel for the Appellants/Cross-Respondents submitted that, it is trite law that when a matter has been fully adjudicated upon by a Court of competent authority, the parties thereto are precluded from litigating the same matter again by a subsequent action. That the same situation applies to any issue which has been fully and finally determined by a Court of competent jurisdiction. The cases of Ntuks v. Nigerian Ports Authority (2007) 5 ? 6 SC 1; Ajiboye v. Alhaji Ishola (2006) 6 – 7 SC. 1 and Owonikoko v. Arowosaiye (1997) 10 NWLR (pt.523) 61 were cited in support. It was then argued that the land in dispute is Isunbajo land as held in the earlier judgments but that the Respondents have not shown that it was the same parties, subject matter, issue and portion or size of the land. That the instant case is not a re-litigation of the earlier dispute, as though the issue of ownership had been settled in Suit No. 305/47, in the instant case, the parties are not entirely the same as in the previous cases. Furthermore, the instant case was instituted because the Respondents were selling other portions of Isunbajo family land without the consent of the overlords.
It was further argued by learned counsel for the Appellant/Cross-Respondent that, Exhibit ‘N’ reinforces the declaration sought from the lower Court against the 4th & 6th Respondents who are trespassers on the land in dispute. Furthermore, that the trial Court ought to have declared that it was bound by the subsistence of the earlier judgments on the issue of ownership of the land, and the customary tenancy of the Respondents to the Appellants’ family. We were accordingly urged to hold that the issue of res judicata applies only to prevent a re-litigation on the issue of ownership of Isunbajo land. We were accordingly urged to resolve the issues in favour of the Appellants.
Now, the main claims of the Appellants/Cross-Respondents who were Plaintiffs in the Court below were declaratory in nature. It is the law that, in an action for declaration of title or ownership of land, the burden of proof lies throughout on the Plaintiff to adduce credible evidence that satisfies the Court that he is entitled to the declaration sought. To succeed the Plaintiff must rely on the evidence adduced by him alone. The Plaintiff may therefore not rely on any perceived weakness in the evidence adduced by the defence, not even on admissions by the defence. The Plaintiff may in appropriate cases, rely on any piece of evidence of the defence which supports his own case. The burden may be discharged by preponderance of evidence or balance of probabilities. See Onwugbufor & Ors v. Okoye & Ors (1996) 1 NWLR (pt. 424) 252; Adeleke & Ors v. Iyanda & Ors (2001) 13 NWLR (pt.729) 1 and Owhonda v. Ekpechi (2003) 17 NWLR (pt.849) 326. Thus, in the case of Orianzi v. A.G Rivers State & Ors (2017) LPELR ? 41737 (SC) My Lord, Galumje, JSC said:
Clearly, the Appellant set out a claim for declaration of title to the disputed property. The law is settled that the burden of proof in a claim for declaration of title to land lies on the Plaintiff, who generally must rely on the strength of his own case and not on the weakness of the defendant’s case? In this case, the Appellant who was the Plaintiff at the trial Court had the burden to prove that he is entitled to the declaration which he sought at that Court and he was required to discharge this burden of proof on preponderance of evidence.
The duty of a Defendant who has not Counter-Claimed in an action for declaration of title to land is merely to defend the action. He has no burden to proof anything, for it is only where the Plaintiff has crossed the Rubicon by adducing sufficient evidence which prima facie establishes his title to the disputed land, that he (Defendant) would be required to call evidence in rebuttal. However, where the Defendant has Counter-Claimed for title to the dispute land, he will be in the same position as the Plaintiff and therefore required to adduce evidence to establish his Counter-Claim. See Bazamfare & Anor v. Adamu & Anor (2017) LPELR 43304 (CA); Yahaya v. Bawa (2015) LPELR 26009 (CA); Orlu v. Gogo-Abite (2010) 8 NWLR (pt.1196) 307 and Ejike v. Obiegbunam & Anor (2016) LPELR 41540 (CA).
In the instant case, the Appellants/Cross-Respondents sought two declaratory reliefs. The first one is declaration of title or ownership to the disputed land. The second (2nd) one sought a declaration that the 1st, 2nd, 3rd, 5th and 7th Defendants/Respondents/Cross-Appellants being customary tenants of the Plaintiffs/Appellants/Cross-Respondents, have forfeited their right to be on the land in dispute. It is beyond argument that the second declaratory relief sought is dependent upon the success of the declaration of title sought. This is because, before the Appellants/Cross-Respondents can ask for forfeiture based on the existence of any customary tenancy between them and the Respondents/Cross-Appellants, they must first of all proof the title or ownership to the disputed land especially when the Respondents have also claimed title.
It is the law that title to land in Nigeria can be proved or established by any of the five ways enunciated by the Supreme Court in Idundun v. Okumagba (1976) 9 ? 10 S.C. 227 at 246 ? 250. Title to land can therefore be proved by one or more of those ways enunciated by the Supreme Court in the above cited case. One of those ways is proof by traditional history or evidence, which by the pleadings is the one relied on by the Appellants/Cross-Respondents. The decision and principles established in Idundun v. Okumagba (supra) has been followed by the Supreme Court, and this Court in a plethora of cases, such as Morenikeji & Ors v. Adegbosin & Ors (2003) 8 NWLR (pt.823) 612; Odunze & Ors v. Nwosu & Ors (2007) 13 NWLR (pt.1050) 1, Matanmi & Ors v. Dada & Anor (2013) 7 NWLR (pt.1353) 319; Faleye & Ors v. Dada & Ors, etc. For a Plaintiff to successfully prove title by traditional history, he must lead evidence to establish the following facts:
(a) Who founded the land;
(b) How the land was founded, i.e by conquest, gift or other grant, first settlement, etc; and
(c) The names or particulars of the persons upon whom the land devolved from the founder to the present or last successors.
The evidence led in support of those facts must form an unbroken chain without leaving any gaps or creating any mysterious or embarrassing linkages which cannot be explained. See Addah & Ors v. Ubandawaki (2015) LPELR 24266(SC); Anyafulu & Ors v. Meka & Ors (2014) 7 NWLR (pt.1406) 396 and Okereke & Anor v. Nwankwo & Anor (2003) 9 NWLR (pt.826) 592).
In the instant case the parties pleaded and led evidence on their traditional histories. However, a new twist was introduced into the matter when both parties pleaded and led evidence of previous judgments which both parties argued has determined the issue of ownership or title between them. While the Appellants/Cross-Respondents argued that those previous judgments have determined to finality the title to or ownership of the land in dispute in their favour, the Respondents/Cross-Appellants argued that the previous judgments having refused to disturb the possession of their successor in title (to wit: Sanni Aina Ekun) of the land in dispute, that judgment operates as a res judicata such as to estop the Appellants/Cross-Respondents from re-litigating the matter. It appears to me therefore, that both parties relied on those previous judgments which are in evidence as Exhibits ?N?, ?O?, and ?P?. The parties are therefore ad idem that the previous judgments operate as res judicata but each side claims the benefit of those judgments.
The positions taken by the Appellants arise from the Ruling of the trial Court in respect of a Motion on Notice filed by the Respondents/Cross Appellants seeking the dismissal of the suit on the ground that it is an abuse of the process of the Court as the cause of action in the case had long been finally determined in a series of Court judgments between the parties. In the Ruling, the trial Court held at pages 30H ? 30I of the Record of Appeal as follows:
The most important issue that calls for determination is whether the parties are the same or not. Perhaps this issue two could be narrowed down when one (sic) observes that in 305/47, J.B. ODUNLAMI along with Isunbajo family sued the Defendant Sanni Aina Ekun. Although the Native Court referred to the Plaintiffs as J.B. Odunlami & Isunbajo family of Ota and at other times as J.B. Odunlami & ?others at Ota?. One thing stood out clearly and that is that the Plaintiff J.B.Odunlami did not institute the action in his personal capacity. What is left for me to examine is in what capacity the Defendant was sued. Along with this I want to consider Writ No. 131/49 on which J.B. Odunlami equally in a representative capacity sued Sanni Aina Ekun and 21 others. On the face of the claims in 305/47 and 131/49, the Defendants were sued in personal capacity but the nature of the claims are such that would survive the parties involved, they having been held to have been in long undisturbed possession which the Courts were not willing to disturb. However, the onus is on the Applicants in the circumstances of this case to trace their genealogy to either Sanni Aina Ekun or the other 21 established litigant in 131/49.
I have examined the Statement of Defence of the Applicant exhibited in this application and have come to the conclusion that the genealogy of the Defendants is inconclusive for me to satisfactorily say that all the Defendants are descendants of Sanni Aina Ekun or the 21 tenants in 131/49. The point cannot be said to have been distinctly put in issue and has with certainty and solemnity been determined one way or the other. Added to this is the fact that the Respondents contend that the Applicants are not related to the Defendant in the earlier Suit. I believe it is an issue that is yet to be resolved.
It is my understanding of the above quoted portions of the Ruling of the trial Court delivered on the 24/10/95 that, the objection of the Respondents/Cross-Appellants to the competence of the suit subject of this appeal based on the application of the principles of res-judicata was refused on the ground that it was not established that the Respondents/Applicants are privies of Sanni Aina Ekun who was Defendant in the earlier Suits relied upon for the plea. The learned trial Judge then held that the issue remained unresolved. Before I proceed to determine whether or not the issue was resolved in course of the proceedings, it will be helpful to discuss the principles of estoppel per rem judicatam.
The principles have been given statutory recognition under Section 173 of the Evidence Act, 2011 which stipulates that:
173. Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the Court, and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.
The purpose of this Section of the Evidence Act is to bring an end to litigation. It is exposed in the Latin maxim, interest rei publicae ut sit finis litium, which means that, it is in the public interest that there should be an end to litigation. This principle has been propounded by the Supreme Court in a litany of authorities such as Yanaty Petrochemical Ltd v. EFCC (2017) LPELR ? 43473 (SC); Ntuks v. Nigerian Ports Authority (2007) 13 NWLR (pt. 1051) 392; Archibong & Ors v. Ita & Ors (2004) 2 NWLR (pt.858) 590; Yusuf v. Adegoke & Anor (2007) 11 NWLR (pt.1045) 332; etc. Thus, Aderemi, JSC in Yusuf v. Adegoke & Anor (supra) at 361 ? 362 paragraphs H ? A, explained the principles lucidly in these words:
once a 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 such matter in Court. A judicial decision properly handed down is conclusive until reversed by a superior Court and its veracity is not open to a challenge nor can it be contradicted. The term derives its force from good public policy which says there must be an end to litigation. The maxim is interest rei publicae ut sit finis litium.
For the plea of estoppel per rem judicatam to apply, the following conditions must co-exist:
(a) The parties or their privies must be the same in the previous and present proceedings;
(b) The claim or the issues in dispute in both proceedings must be the same;
(c) The res or subject matter of the litigation in the previous case must be the same as in the previous case;
(d) The Court that gave the previous decision relied upon to sustain the plea must be a Court of competent jurisdiction; and
(e) The decision relied upon to support the plea of estoppel per rem judicatam must be valid, subsisting and final.
It must be realized that all the above stated pre-conditions must co-exist, otherwise 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; Abubakar v. Bebeji Oil & Allied Products Ltd & Ors (2007) 18 NWLR (pt.1066) 319; Adone & Ors v. Ikebudu & Ors (2001) 14 NWLR (pt. 733) 385 and Gbemisola v. Bolarinwa & Anor (2014) 9 NWLR (pt. 1411) 1.
The judgments relied upon are in evidence as Exhibits ‘N’, ‘O’, ‘P’ and ‘Q’. It should be noted that the initial judgment is Suit NO:305/47 delivered by the Native Court Grade ?B?, Otta on the 22nd day of August, 1947. The Plaintiff in that Suit was one J.B. Odunlami of Isunbajo Family of Otta, while the Defendant was one Sanni Aina Ekun of Ijoko Compund, Otta. The claim therein was for:
Declaration and Injunction on Ijaliye land, property of Isunbajo Family
After evidence was led, the trial Native Court, Grade ?B?, Otta decided as follows:
The Plaintiffs sued Defendant for declaration and Injunction on Ijaliye land, property of Isunbajan Family, the evidence before this Court shows that the farmland in question being Ijaliye’s and it is property of Isunbajan Family, but the Defendants father named Dada Eso had long being (sic) on the said land and on his death, Defendant J. B. Odunlami’s brother named Bello Egbe deceased were allotting farmland to strangers and collected the necessary Customary Fees, Defendant could not at this stage be asked to quit the land, but is ordered to present the tenants before the Isunbajan
Family, who are regarded as the Land-Owners.
It would be seen therefore, that while the trial Native Court declared title to the land in dispute to be in the Appellants/Cross-Respondents, it refused the order of Injunction which would have had the effect of dispossessing the Respondents/Cross-Appellants on the land. In Exhibit ?O? which is the judgment of the Grade ‘B’ Native Court, Ake Abeokuta, the claim between J. B. Odunlami (on behalf of the Isunbajan Family of Otta vs Salami Aina Ekun of Ijoko Otta & 24 Ors; Suit No:131/49) was a claim for Injunction on the ground that Salami Aina Ekun:
failed to comply with the judgment given by the Otta Native Court on 28: 4: 48 that he should present the other Defendants tenants to the Plaintiffs as land owners.
The trial Native Court, Ake refused the order of injunction to restrain the Defendants therein from operating on the land on the grounds that the 2nd ? 22nd Defendants in the Suit had lived on the land for between 25 / 30 years and have been paying the 1st Defendant and one Bello Odunlami ? the uterine brother of J. B. Odunlami, the usual customary gifts. In Suit No:131/49 therefore, title to the land was not in issue.
The Suit No:48/50 was also between J. B. Odunlami & Ors v. S.A. Ekun and 21 Ors. It was an appeal against the decision of the Grade ‘B’ Native Court, Ake to grant the prayer for Injunction. The appeal was dismissed, for the Court saw no reason to interfere with the judgment of that Court. Exhibit ‘Q’ Suit No: 84/50 was also an appeal against the judgment of the Grade ‘A’ Customary Court, Ake to the Egba Native Court of Appeal. This appeal was also dismissed.
From the foregoing, it would be seen that Exhibits ‘O’, ‘P’ and ‘Q’ decided on the issue of Injunction. It was therefore in Suit No: 305/47 that the issue of title to the land was determined in favour of J. B. Odunlami and Isunbajo Family. In the judgment delivered on the 8/5/2003, the learned trial Judge found as proved, that the land in dispute is the same as that litigated upon by both parties in earlier suits between them. The learned trial Judge also found that Sanni Aina Ekun who litigated the land in dispute with the Appellant?s predecessor-in-title was the father of the PW1 and 1st & 2nd Respondents/Cross-Appellants. That the Appellants/Cross-Respondents are members of the Isunbajo Family while the Respondents/Cross-Appellants are members of Sanni Aina Ekun Family. The learned trial Judge then found that, in view of his Ruling on res judicata, the most important issue to be resolved is the relationship of the present Defendants to Sanni Aina Ekun. There is no appeal against this finding of the trial Court.
I have carefully perused the entire judgment of the trial Court. There is nowhere the learned trial Judge resolved the issue of the relationship between the Respondents/Cross-Appellants and Sanni Aina Ekun. If the learned trial Judge had considered the Respondents’ pleadings and evidence before the Court, he would have seen that the said Sanni Aina Ekun was the predecessor of the 1st, 2nd, 3rd, 5th and 7th Respondents/Cross-Appellants while the other Respondents are privies of the 1st, 2nd, 3rd, 5th and 7th Respondents. The said Respondents/Cross-Appellants pleaded and led evidence to the effect that the land in dispute was founded by their predecessor, one Awodoye. They then pleaded their lineage in paragraphs 6(Vii)(a) – (k) of Second Amended Statement of Defence. They also pleaded that Awodoye the founder of the land begat Olayiga and Olayiga begat Aina Odi. That Aina Odi begat Dada Eso and Dada Eso begat Sanni Aina Ekun and his siblings. Sanni Aina Ekun was the predecessor of the Respondents/Cross-Appellants and the Defendant in Suit No: 305/47. It has therefore been established, and which fact has been admitted by the Respondents, that Sanni Aina Ekun is their predecessor in title.
That being so, the Respondents/Cross-Appellants are bound by the judgment in Suit No: 305/47 which declared ownership or title to the land to be with the Appellants/Cross-Respondents.
Now, res judicata applies to conclude a Plaintiff?s case so that the Plaintiff is relieved of the duty to call evidence in proof of an issue that has been determined in the further proceedings. See Jimoh & Ors v. Akande & Anor (2009) 5 NWLR (pt. 1135) 549 and Osunrinde & Ors v. Ajamogun & Ors (1992) 6 NWLR (pt.246) 156. Thus in the case of Ayuya & Ors v. Yonrin & Ors (2011) 10 NWLR (pt.1254) 133, Onnoghen, JSC (as he then was) held that:
The above statement of the law notwithstanding, a Plaintiff in an action for declaration of title may plead and rely on a previous judgment in his favour not as res judicata but simply as an estoppel in the sense that it constitutes a relevant fact to the issue in the present action and the judgment will be conclusive of the facts which it decided. See Ukaegbu v. Ugoji (1991) 6 NWLR (pt.196) 127; Esan v. Olowa (1974) S.C. 125.
On the basis of the authorities cited above, though the Appellants/Cross-Respondents could not plead res judicata on the judgment in Suit No: 305/47, they could rely on the decision of the Court on the issue of title as constituting estoppel. In other words, the issue of title to or ownership of the land in dispute having been determined in Suit No: 305/47, the Respondents/Cross-Appellants who did not appeal that judgment were estopped from denying the Plaintiffs/Appellants/Cross-Respondents’ title to the land in dispute. On the other side of the coin, the Appellants were entitled to rely on that decision on the issue of title or ownership of the land as proof of their title to the land in dispute. On another platform, the Appellants/Cross-Respondents were relieved from the burden of adducing evidence on the issue of ownership of the land, same having been determined by Exhibit ?N? (Suit No: 305/47). Thus, Anniagolu, JSC (of blessed memory) in the case of Chinwendu v. Mbamali & Anor (1980) 3 – 4 S.C. 31 at 48 said:
It has been a long established practice in our Courts in this Country for a Defendant to plead a judgment given against a Plaintiff where the Plaintiff relitigates the subject matter against him, but the practice is not often employed by a Plaintiff against a Defendant who raises issues already decided upon in a previous litigation. Nothing however, prevents a Plaintiff from raising, in the originating or further pleadings, estoppel against a Defendant who makes assertions in his pleadings contrary to what had been solemnly declared in a previous judgment against him.
At the pain of repetition, I find it necessary to restate that, a Plaintiff is at liberty to plead and prove such facts which precludes a Defendant from disputing or stating the contrary of the existence of facts which have been canvassed and determined in a previous judgment and which facts again arise in the extant suit. In the instant suit, the issue of title to or ownership of the land in dispute by the Appellants/Cross-Respondents’ Isunbajo family had since 1948 been determined in Suit No: 305/47. I therefore hold that the Appellants’/Cross-Respondents had proved their title to the land in dispute.
Now, the Appellants/Cross-Respondents as Plaintiffs, had also sought for a:
declaration that the 1st, 2nd, 5th and 7th Defendants are descendants of Sanni Aina Ekun and the 3rd Defendant being customary tenants of the Plaintiffs have forfeited their right to be on the Plaintiffs land at Ijaliye, Otta, Ogun State.
The Appellants/Cross-Respondents have by the above claim, sought that it be declared that the Respondents are customary tenants of the Appellants/Cross-Respondents and that they have forfeited their rights to be in continuous possession and enjoyment of the land. In the resolution of this point, I need remind myself that the issue of title to or ownership of the land in dispute have been found to have been determined in Suit No: 305/47 (Exhibit ‘N’). Thus, to determine on the issue of forfeiture or no forfeiture, it would be necessary to determine whether or not the 1st, 2nd, 3rd, 5th and 7th Respondents/Cross-Appellants are customary tenants of the Appellants/Cross-Respondents. Here again, the parties pleaded and relied on Exhibits ‘N’, ‘O’, ‘P’ and ‘Q’ which are previous judgments in respect of the subject matter of this dispute between the parties.
It would be recalled that Exhibits ‘O’, ‘P’ and ‘Q’ are judgments on the effort of the Appellants/Cross-Respondents to remove the Respondents/Cross-Appellants from the land in dispute, and thus, recover possession of the said land. However, their efforts failed. Exhibit ‘N’ which is Suit No: 305/47 is the initial Suit filed by Appellants in the Otta Grade ‘B’ Native wherein the rights of the parties to the land in dispute were, in my view streamlined. In that suit, the Appellants/Cross-Respondents’ predecessor in title; J. B. Odunlami, had sought an injunction to restrain the Respondents’ predecessor, Sanni Aina Ekun from entering the land in dispute but same was refused. Appeals on the refusal to grant the injunction as evidenced by Exhibits, ‘O’, ‘P’ and ‘Q’ were refused. I have endeavoured to say all things so as to set out the background facts. I need only to add that both sides have pleaded and relied on those previous judgments to strengthen their cases.
Having carefully perused those previous judgments, i.e. Exhibits ‘N’, ‘O’, ‘P’ and ‘Q’, I am of the view that Exhibit ?N? will be helpful on the issue. After affirming the ownership of the land in dispute to the Appellants/Cross-Respondents? (Osunbajo family), the trial Native Court went on to hold as follows:
but the Defendants father name Dada Eso had long being (sic) on the said land and on his death, Defendant J.B. Odunlami’s brother named Bello Dada Egbe deceased were allotting farm-land to strangers and collected the necessary customary Fees, Defendant could not at this stage be asked to quit the land, but he is ordered to present the tenants before the Isunbajan family, who are regarded as the Land-Owners.
It is this portion of the judgment in Suit No: 305/47 (Exhibits ‘N’) that the Appellants/Cross-Respondents have relied upon to contend that the customary tenancy of the 1st, 2nd, 5th and the 7th Respondents who are the descendants of Sanni Aina Ekun had been determined. A very careful and sober consideration and construction of the portion of the judgment reproduced above, does not disclose to me that the trial Customary Court specifically determined that the 1st, 2nd, 5th and 7th Respondents/Cross-Appellants, the descendants of Sanni Aina Ekun were paying customary tribute to the Appellants? predecessors in title. What the Court decided is that, after the death of Dada Eso (the father of Sanni Aina Ekun), one Bello Baba Egbe (brother to J. B. Odunlami; the Appellants? predecessor in title) was allotting the land to strangers and collecting the necessary Customary Fees. Furthermore, Sanni Aina Ekun was directed by the Court to present the tenants who were on the land to the Isunbajo Family but the reason for the order was not given in the said judgment.
The view I have held above is further strengthened by the decision of the Grade ?B? Native Court, Ake-Abeokuta in Suit NO: 131/49 delivered on the 12/3/1951. Therein, it was held that:
from the evidence adduced on both sides, it is obvious that the Defendant NOs: 2 ? 22 who the Plaintiff wanted to be presented to his family have acquired the land in question between 25 to 30 years ago and have since been working on it after paying to the Defendant No(a) and one Bello Odunlami ? Plaintiffs uterine brother ? the usual customary gifts
In making the above pronouncement, no reference was made to Sanni Aina Ekun, the predecessor of the Respondents as one of the persons who paid ?the usual customary gifts? to the Appellants? Isunbajo Family.
It is the law that it is not enough for the Plaintiff to aver customary tenancy, he must go further by positive evidence to show that the Defendant is a customary tenant and the terms of the tenancy, such as the payment of customary tribute. See Akinbade & Anor v. Babatunde & Ors (2017) LPELR -43463 (SC); Dim v. Enemuo (2009) 10 NWLR (pt.1149) 353; Mbakuu v. Aondokaa (2017) LPELR ? 44040 (CA). It therefore means that, where there is no evidence of customary tenancy between the two parties, the question of forfeiture will not arise. See Iroagbara v. Ufomadu (2009) 11 NWLR (pt.1153) 587; Fakoya & Anor v. Ijelu (2014) LPELR ? 23196 (CA) and Akinbade & Anor v. Babatunde & Ors (supra).
It must however be noted that payment of customary tribute cannot be said to be a condition precedent to the creation of a valid tenancy under customary law. In other words, non payment of tribute is not inconsistent with the existence of customary tenancy. See Abimbola v. Abatan (2001) 9 NWLR (pt.717) 66; Akinlagun v. Oshoboja & Anor (2006) 12 NWLR (pt.993) 60; Makinde v. Akinwale (2000) 74 LRCN 137. In Ajao & Ors v. Obele & Anor (2004) LPELR ? 5719 (CA), Adekeye, JCA (as he then was) said:
Once traditional history pleaded by a party is proved, the proof or failure to prove payment of Ishakole by the tenant will not affect the fact of ownership of the land as claimed. In other words, it is not helpful to consider failure to prove the said Ishakole as having adverse effect on the proof of the traditional history and customary tenancy. It is not unknown that there can be customary tenancy without payment of tribute. As long as the owner accepts or permits the use and occupation or possession of their land.
In Exhibits ‘N’, ‘O’ and ‘P’, there was no specific finding by those Courts that the Respondents’/Cross-Appellants’ ancestor was paying customary tribute. However, the conclusion arrived at by those Courts was that the Respondents/Cross-Appellants’ ancestor Dada Eso, the father of Sanni Aina Ekun was not the owner of the land, though he was in occupation of the land in dispute. Exhibit ‘N’ also found that after the death of the said Dada Eso, the uterine brother of J. B. Odunlami, the predecessor of the Appellants/Cross-respondent, began to allot parcels of the land to strangers and was collecting the necessary customary fees. This was confirmed by Exhibit O. Furthermore, the prayer for injunction sought by the Appellants’ predecessor was refused on the ground that the Defendants therein, which included Sanni Aina Ekun, predecessor to the Respondents/Cross-Appellants had been in occupation and use of the land for long and therefore impossible to ask them to quit. My finding from the above analysis is that, Exhibits ”N’, ‘O’ and ‘P’ had established that the other Defendants therein were customary tenants of the Isunbajo Family.
Now, it is the law that, a customary tenant enjoys perpetuity of tenure subject to good behavior. Thus, in the case of Dashi & Ors v. Satlong & Anor (2009) 5 NWLR (pt.1134) 281, the Supreme Court held that:
A customary tenancy involves transfer of an interest in land from the customary landlord or overlord to the customary tenant and which interest entitles the customary tenant to exclusive possession of the land and which interest, subject to good behaviour, he holds in perpetuity.”
It therefore means that so long as the customary tenant conducts himself appropriately, he will remain in possession in perpetuity. See Lasisi & Anor v. Tubi & Anor (1974) All N.L.R.923; Akinbade & Anor v. Babatunde & Ors (2017) LPELR ? 43463 (SC); Okpala & Ors v. Okpu & Ors (2003) 5 NWLR (pt.812) 183 and Archibong & Ors v. Ita & Ors (2004) 2 NWLR (pt.858) 590. In other words, no matter how long the possession of a customary tenant under customary law, such possession cannot ripen into full ownership of the land. This is because, acquisition of title by prescription is unknown to customary law. See Atunrase v. Sunmola (1985) 1 NWLR (pt.1) 105 at 112. That being so, the best mode of determination of such customary tenancy is by an order of forfeiture. However, the grant of the order of forfeiture is not automatic. Thus, for the Court to order for forfeiture, it must be shown that the tenant has been of bad behaviour or has conducted himself inappropriately; or inconsistent with the customary tenancy. Some of the actions of the customary tenant which may attract the punishment of forfeiture are:
(a) Refusal to pay rent or tribute;
(b) Refusal to provide the customary services stipulated for the tenancy;
(c) Use of the land for a purpose different from that stipulated for the tenancy;
(d) Denial of the title of the landlord or overlord.
The most serious circumstance under which forfeiture may readily be ordered is where the tenant denies the title of the overlord. However, whether or not forfeiture will be ordered in a particular case will depend on the facts of that case. It all depends on the degree of misbehavior by the tenant. See Adedeji v. Oloso & Anor (2007) 2 NWLR (pt.1026) 133; Oniah v. Onyia (1989) 1 NWLR (pt.99) 514; Abioye & Ors v. Yakubu & Ors (1991) 5 NWLR (pt.190) 130 and Olugbode & Anor v. Sangodeyi (1996) LPELR ? 2619 (SC). It remains settled however that, gross misconduct which touch directly on the title of the landlord will be a compelling ground for granting forfeiture. See Dokubo v. Bob Manuel (1967) 1 All NLR 113. Thus in Oniah v. Onyia (supra) the Supreme Court held that:
It is well settled that forfeiture is the usual mode of determining a customary tenancy. The real basis of the misconduct or misbehavior which renders the tenancy liable to forfeiture is the challenge to the title of the overlord. This may be by alienation of part of the land under claim of ownership, refusal to pay the tribute due or indeed, direct denial of overlords’ title by setting up a rival title in the customary tenant himself as in the instant case.
In the instant case, the Respondents/Cross-Appellants clearly and unambiguously denied the title of the Appellants/Cross-Respondents. They went further to claim of title or ownership of the land in dispute; and under claim of such ownership, they alienated parts or parcel of the land to strangers. This is a grave misconduct which will undoubtedly attract the penalty of forfeiture. The Appellants are therefore entitled to the Declaration that the 1st, 2nd, 5th and 7th Defendants/Respondents/Counter-Claimants, as descendant of Sanni Aina Ekun and the 3rd Defendant/Respondent being customary tenants of the Appellants have forfeited their right to be on the land of the Appellants situate at Ijaliye, Ijako Area, Ota in Ado-Odo Local Government Area of Ogun State as shown on Plan No. LAA/OGGA & B, drawn by A. A. Lekan (Licensed Surveyor).
Having found as above, it is clear that the appeal succeeds and is hereby allowed. In the circumstances, the judgment of the Ogun State High Court delivered on the 8th day of May, 2003 in Suit No. HCT/54/94 is hereby set aside. The Appellants/Cross-Respondents are entitled to the reliefs sought in prayers 1, 2, 3 and 5 of the Amended Writ of Summons and Amended Statement of Claim.
CROSS-APPEAL
The Respondents herein, filed a Notice of Cross-Appeal on the 07/8/2003. It consisted of only one Ground of Appeal touching on the issue of res judicata. From that sole ground, the Respondents/Cross-Appellants raised one issue for determination which was argued as issue three (3) in the Respondents/Cross-Appellants’ Brief of Arguments. I had considered that argument while considering the main Appeal. I therefore need not repeat same here. It suffices however to state that those arguments are hereby adopted herein.
As discussed in the main Appeal, the basis for the principle of res judicata is the necessity to have an end to litigation in respect of the same res and between the same parties or their privies. Thus where the subject matter of a dispute or an issue has been heard and determined by a Court of competent jurisdiction, such issue cannot be relitigated upon again. See Okukuje v. Akindo (2001) 3 NWLR (pt.700) 261 and Governor of Oyo State & Ors v. Folayan (1995) 8 NWLR (pt.413) 292.
The contention of the Respondents/Cross-Appellants here is that the previous litigations pleaded and relied on by both parties operate to estopp the Appellants/Cross-Respondents from relitigating the subject matter of this dispute with the Respondents/Cross-Appellants. My simple and short view here is that, the Appellants/Cross-Respondents pleaded those previous judgments to show that the issue of title or ownership of the land in dispute had previously been determined. Those judgments therefore support and form part of the traditional history relied on by the Appellants. To that extent, the principles of res judicata will not apply as to estopp them from pleading and relying on the said judgments. See Ukaegbu & Ors v. Ugoji & Ors (1991) 7 SC (pt.II) 24 and Ajuwon v. Adeoti (1990) 2 NWLR (pt.132) 271. On that note therefore, this Cross-Appeal has no merit. It is hereby dismissed.
NONYEREM OKORONKWO, J.C.A.: I have read in advance the judgment of my brother Haruna Simon Tsammani JCA in this appeal. I agree with the conclusions reached. I have nothing more to add.
ABUBAKAR MAHMUD TALBA, J.C.A.: I have had a preview of the Judgment of my learned brother Haruna Simon Tsammani JCA just delivered. I agree with the reasoning and conclusion that this appeal succeeds and it is hereby allowed. While the cross appeal has no merit and it deserves to be dismissed. My lord had extensively dealt with all the issues raised.
A customary tenancy involves the transfer of an interest in land from the customary landlord or overload to the customary tenant and which entitles the customary tenant to exclusive possession of the land and which interest subject to good behaviour he holds in perpetuity See Dashi and Ors v. Satlong and Anor (2009) 5 NWLR (pt. 1134) 281.
This Court and indeed the Apex Court had emphasized that the theory behind the concept of customary tenancy is that where strangers or immigrants have been granted land for occupation and use they are entitled to continue in peaceful enjoyment until they forfeit their rights on such grounds as;
1. Alienating a portion of the land to others without the prior consent of the grantors.
2. By putting the land to uses other than those originally agreed upon.
3. By failure to pay the customary tribute
4. By denying the title of the overlord.
It should be noted that the Courts are always reluctant to order forfeiture except in most exceptional circumstances See Ashagon v. Oduntan (1935) 12 NWLR 7 and Lasisi and Anor v. Tubi and Anor (1974) LPELR 1757 (SC).
In this instant case, the Respondents/Cross Appellants had denied the title of the Appellant/Cross Respondents. They also claimed title or ownership of the land in dispute. And in such situation they alienated parts or parcel of the land to strangers. This is a most exceptional circumstance that will attract the penalty of forfeiture. The Appellants are therefore entitle to the declaration that the 1st, 2nd, 5th and 7th Defendants/Respondents/Counter Claimants as descendant of Sanni Aina Ekun and the 3rd Defendant/Respondent being customary tenants of the Appellants have forfeited their right to be on the land of the Appellants situate at Ijaliye Ijako Area, Ota Ogun State.
It is for these and the more elaborate reasons in the lead Judgment that I too allow the appeal.
I hereby set aside the Judgment of the Ogun State High Court delivered on the 8th day of May, 2003. In suit No: HCT/54/94.
I abide by the order as contained in the lead Judgment.
Appearances:
O.O. Sobowale, Esq.For Appellant(s)
Kunle O. Carew, Esq.For Respondent(s)
