ALHAJA MUINAT ADUFE ASHOROBI v. ALH. MUSEDIKU ABUDU AKINOLE & ORS (2010)

ALHAJA MUINAT ADUFE ASHOROBI v. ALH. MUSEDIKU ABUDU AKINOLE & ORS

(2010)LCN/3665(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/L/776/2014

RATIO

EVIDENCE: THE DOCTRINE OF ESTOPPEL

The doctrine of estoppel is anchored on the immutable principle of law to the effect that once a matter has been heard and determined by a competent Court with the requisite jurisdictional power to so do, it becomes unacceptable for a litigant to later re-litigate and reopen the same matter that had been determined and settled by the Court. The logic behind the principle is simply put, that there must be an end to litigation. I had cause, more recently to restate the principle of estoppel in Sunday Ofoma & Anor v. Anthony Obinwe & Anor (2016) LPELR – 41042( CA), at 12 ? 15, thus:

“In law, estoppel is an admission or something which the law views as equivalent of an admission. By its very nature, it is so important and conclusive that the party whom it affects will not be allowed to plead against it or adduce evidence to contradict it. Yoye v. Olubode (1974) All NLR 657; Ukaegbu v. Ugoji (1991) 6 NWLR (pt. 196) 127; Koiki v. Magnusson (2001) FWLR (pt. 63) 167. It is a common law principle which has gained statutory acceptance in Nigeria, such as Section 169 of the Evidence Act No. 18 of 2011. It forbids a person or party who having shown that he agrees with a state of affairs, to later turn round and disclaim his act or omission. Hence both in common and statutory law, such conduct is not permitted. For example in Section 151 of the Evidence Act, 2004 which is in pari materia with Section 169 of the Evidence Act, 2011, the use of the phrase that: neither he nor his representative in interest shall be allowed is emphatic. This was explained better by the apex Court in Ude v. Osuji (1998) 10 SCNJ 75 thus: The principle of estoppel by conduct is that where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relation between them and to be acted upon accordingly, then once the other party had taken at his word and acted on it, then the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance has been made by him.

There are principally, two kinds of estoppel. In Osunrinde & Ors v. Ajamogun & Ors (1992) 7 SCNJ 79; (1992) LPELR 2819 SC at 39, his Lordship, Ogundare, JSC (now of blessed memory) succinctly stated, to wit: “Now, there are two kinds of estoppel by record inter partes or per rem judicatam as it is generally known. The first is usually referred to as cause of action estoppel and it occurs where the cause of action is merged in the judgment, that is transit in rem judicatam. There is however, a second kind of estoppel inter partes and this usually occurs where an issue has earlier on been adjudicated upon by a Court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in these circumstances, issue estoppel arises.

Furthermore, on the effect of estoppel, his Lordship, at page 46 of the report, stated: “The general rule of law undoubtedly is that no person is to be adversely affected by a judgment in an action to which he was not a party, because of the injustice in deciding an issue against him in his absence. But this general rule admits of two exceptions, one is that a person who is in privity with the parties, as he is called is bound equally with the parties, in which case, he is estopped by res judicata: the other is that a person may have so acted as to preclude himself from challenging the judgment in which case he is estopped by his conduct.”PER TOM SHAIBU YAKUBU, J.C.A.

EVIDENCE: CONDITIONS FOR THE OPERATION OF THE PRINCIPLE OF RES JUDICATAM

a) there must be a judicial decision rendered by a Court with the competent jurisdiction to so do;
b) the issues or the claim in both the previous and present actions are the same;
c) the res, that is, the subject matter of the litigation in both the previous and present action, is the same;
d) the decision relied upon in support of the plea of estoppel per rem judicatam is valid and subsisting and
e) the parties to the present action were either parties to the previous action or they were privies to any of the parties in the previous action.

The law remains very well settled to the effect that where any of the above listed conditions is lacking, the plea of estoppel per rem judicatam would fail and become unavailing. Ebba v. Ogodo (2000) 10 NWLR (pt.675) 387; Anwoyi v. Shodeke (2006) 13 NWLR (pt.996) 34; Omnia ( Nig) Ltd v. Dyktrade (2007) 14 NWLR (pt.1058) 576; Nigergate Ltd v. Niger State Government (2008) 13 NWLR (pt.1103) 111; Chief Imam Busari Dauda & Ors v. Attor. Gen. Lagos State & Ors (2011) LPELR ? 931 (SC) @ page 28. PER TOM SHAIBU YAKUBU, J.C.A.

COURT: WHETHER COURTS ARE ENCOURAGED TO OFFER LEGAL ADVICE TO PARTIES

I only need say that Courts are not generally encouraged to proffer advice to parties in any matter placed before them for adjudication. It is within the province of parties’ counsel and not of the Courts to offer legal advice to parties. PER TOM SHAIBU YAKUBU, J.C.A.

EVIDENCE: PRINCIPLE OF ESTOPPEL PER REM JUDITCATA

the principle of estoppel per rem judicata, does not and would not permit that course of action since it is public policy that there must be an end to litigation. See The Honda Place Limited v. Globe Motors Holdings Nigeria Limited (2005) 7 SC (Pt.111)182, Agbogunleri v. Depo (2008) 2 MJSC, 70, Dagaci of Dere v. Dagaci of Ebwa (2006) ALLFWLR (306) 786, Etim v. Obot (2010) 12 NWLR (1207) 108, Attorney General, Nasarawa State v. Attorney General, Plateau State (2012)3 MJSC (Pt.111)118. PER MOHAMMED LAWAL GARBA, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

ALHAJA MUINAT ADUFE ASHOROBI Appellant(s)

AND

1. ALH. MUSEDIKU ABUDU AKINOLE
2. CHIEF AFOLABI ODUNSI AKINOLE
3. PRINCE AKEEM ABAYOMI OSHIUN
4. MR. LAMINA AKINOLE
(For themselves & on behalf of Akinole-Shiun family)
5. PERSONS UNKNOWN Respondent(s)

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the ruling of the Lagos State High Court, holden at Lagos delivered on 17th April, 2014. The appellant had, by a motion on notice dated 17th August, 2011 prayed for an order amongst other reliefs, that the Court should set aside the order it made on 18th May, 2011, which was sequel to the ex-parte application of the respondents dated 1st March, 2011. The appellant’s motion on notice was anchored on the ground amongst others, that the ex-parte order obtained by the respondents at the Court below was tainted with material misrepresentation, misstatements and concealment of facts by the respondents and also to set aside the warrant of possession dated 4th August, 2006 and the writ of possession issued on the 7th October, 2010 for noncompliance with the provisions of Order 53 Rule 7(1) of the High Court of Lagos State (Civil Procedure) Rules, 2004. The appellant in her motion on notice aforesaid, had urged the Court below to exercise the power of review conferred on it pursuant to the provisions of Order 53 Rule 8(1) of the 2004 of the Lagos State High Court

(Civil Procedure) Rules, to review the orders it earlier made in Suit NO: ID/923M/99, since the proceedings in the same suit were conducted under the aforementioned Order 53. The respondents filed a counter affidavit against the appellant’s application.

The respondents vide a motion on notice dated 18th October, 2011 objected to the hearing of the aforesaid appellant’s motion on notice, for want of jurisdiction, on the ground that the motion was caught by issue estoppel per rem judicatam by virtue of the Court of Appeal’s decision in CA/L/649/M/2006, dated 26th April, 2007. The appellant filed a counter affidavit against the respondents’ application. The parties in compliance with the direction of the Court below, filed and exchanged written addresses in respect of the applications at the instances of both parties. In his ruling, the learned trial judge upheld the respondents’ objection and consequently the appellants’ motion on notice was dismissed, for want of the Court’s jurisdiction to entertain it. The appellant, not unnaturally, was piqued by the decision against her, which prompted this appeal.

This matter has a checkered history. The facts as

narrated by either side, are rehashed for ease of appreciation. On the part of the appellant, it is stated thus:
The Lagos State Government by Government Notice No. 236 of 1969 published in the Official Gazette No. 26 Vol. 2 dated 24th October 1969 compulsorily acquired 7,300 acres (2.954 Hectares) of land North of the Airport in Ikeja Division of Lagos State, including Agidingbi for overriding public interest. The notice of acquisition was attached as Exhibit ?A? to the affidavit in support of the motion dated 17th August 2011. The Lagos State Government formally had the title to the 7,300 acres Global acquisition including the land the subject matter of this suit vested in it by Legal Notice No. 8 of 1976 published in the Extraordinary Gazette, No. 25, vol. 9 of 18th June 1976. The Legal Notice was attached as Exhibit ?B? to the affidavit in support of motion. The Lagos State Government subsequently and by a Notice of Excision published as Notice No. 92 in the Official Gazette No. 15 vol. 10 dated 31 March 1977 released 14. 54 hectares (about 30 acres) to the original owners in the community. Exhibit ?C? is

a copy of the said Notice of Excision to the affidavit in support of motion.

At a meeting of the Agidingbi Community held on the 28th March 1978, the Community unanimously agreed to allot to the appellant plots 13-17 in the Community layout plan No. OGEK1O3O/78 in appreciation of her immense contribution to the progress of the Community. Exhibit ?D? in the affidavit in support of motion is a copy of the allocation letter to the appellant signed by the Chairman of the Agidingbi Community. The appellant was in peaceful possession of the said plots of land without any disturbance, let or hindrance from anybody.

?On the 25th February 2008, the Lagos State Government withdrew and consequently revoked the notice of excision of all the 14.54 hectares of land described as parcel H in the Notice of excision. The said notice also contained a declaration that any land transaction by any family or individual on the land at Agidingbi without the Governor?s consent is unlawful, invalid, null and void. Exhibit ?C? in the affidavit in support of motion is a copy of the said notice of withdrawal of excision/revocation published in the Punch

Newspapers of Monday 25th February 2008. In view of the withdrawal and revocation of the excision of 1977 by the Lagos State Government by which the ownership or title of the land in Agidingbi reverted to the Lagos State Government, the appellant applied to the Governor of Lagos State to regularize her occupation of the land and the Governor of Lagos State subsequently issued a Certificate of Occupancy number 88 at page 88 in volume 2011E dated 5th April 2011 to the appellant in respect of the land that she inherited from her father which is situate along Isheri Road now Lateef Jakande Road, Agidingbi, Ikeja. Exhibit ?H? the affidavit in support of motion dated 17th August 2011 is a copy of the said certificate of occupancy.

On or about August 2011, the respondents came with Court officials and photographers to take photographs of the appellant?s landed properties exhibits ?D?, ?E? and ?H? among others in Agidingbi with a view to taking possession of her properties on the basis of a Court judgment which allegedly conferred ownership of the whole of Agidingbi on the respondents. Investigation at the

High Court, Ikeja registry revealed that the respondents were relying on the judgment in Suit No. ID/216/77L: Chief Sule Otabiyi Akinole & Anor v A. T. G. Mogaji & Ors and the order for possession made in ID/923M/99 on the 16th February 2000 as their authority to claim ownership of all the land in Agidingbi. Exhibits “I? and “J? respectively attached to the affidavit in support of motion dated 17th August 2011 are copies of the writ of summons and statement of claim in Suit No. ID/216/77L. The action in Suit No. ID/216/77L was against two families in Agidingbi village namely; the Mogaji and Saka families and not against the entire Agidingbi village or any other family in the Agidingbi Community. The defendants in the said Suit No. ID/216/77L were sued “for themselves and on behalf of Mogaji and Saka Families of Agidingbi Village, Ikeja Division, Lagos State?. The appellant?s predecessors-in-title of her landed property along Isheri Road, now Lateef Jakande Road, Agidingbi, the Aruna family DO NOT belong to Mogaji and Saka Families and were not parties in Suit No. ID/216/77L. There are several

other persons and different families in Agidingbi Village each with their separate and distinct family holdings or parcels of land in Agidingbi. The Agidingbi Community also has its separate land holdings from its members. The appellant acquired her land holdings in Agidingbi as shown in exhibit ?D? in the affidavit in support of motion dated 17th August 2011 from the Agidingbi Community and with respect to the land along Isheri Road now known as Lateef Jakande Road, Agidingbi exhibit ?E? in the affidavit in support of the said motion from the Aruna Family. Neither the Agidingbi Community nor the Aruna families were parties in Suit No. ID/2 1 6/77L. The farm lands of the defendants in Suit No. ID/216/77L measuring about 12- 15 acres in all are separate and distinct from the parcels of land belonging to the various persons and families in Agidiigbi as well as the Community land.

?The claimants in Suit No. ID/216/77L were not only aware of the Global acquisition of the land by the Lagos State Government in 1969 but are parties to the Originating Summons subsequently taken out by the Lagos State Government in Suit No. LTILS/35/89 to determine the

persons entitled to compensation in respect of the 356.442 hectares of the land acquired including land in Agidingbi Village under the compulsory public acquisition of 1969. Exhibit ?L? in the affidavit in support of the said motion of 17th August 2011 is a copy of the Originating Summons showing the claimants in Suit No. ID/216/77L as no. 131 whilst the Mogaji and Saka families are referred as Nos. 83 and 84.

?The Aruna Family from whom the appellant?s father bought the land along Isheri Road was listed as claimant Nos. 93, 95 and 103 in the Originating Summons before the Lands Tribunal. There are several other persons and families who own separate and distinct parcels of land at Agidingbi and who are described in the Originating Summons in Suit No. LT/LS/35/89 as claimants Nos. 63, 67, 69,70, 71, 79, 81, 83, 84., 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 110, 111, 112, 113, 114,115, 116, 119, 125, 126, 132, 134 and 142 before the Land Tribunal all or most of which parcels of land are included in the land the subject matter of Suit No. ID/216/77L. None of the claimants listed in

the matter before the Lands Tribunal save Mogaji Family and Akinole Family was party to the suit herein filed by the Akinole Family in Suit No. ID/216/77L. The claimants and families in Suit No. LT/LS/35/89 before the Lands Tribunal (who are also owners of different parcels of land in Agidingbi Village) were not parties in Suit No.ID/216/77L.

The respondents did not make any claim to the Lagos State Government for compensation for any land in Agidingbi village in 1969 after the said compulsory global acquisition of 7, 300 acres of land north of airport in Ikeja Division of Lagos State including Agidingbi for overriding public interest. The respondents did not in Suit No. LT/LS/35/89 before the Lands Tribunal make any claim for compensation in respect of any land in Agidingbi village rather they laid claim to land in Alausa.

?By virtue of the notice of withdrawal of excision/revocation published in the Punch Newspapers of Monday 25th February 2008 exhibit ?C? herein the entire land at Agidingbi as originally acquired by the 1969 Global Acquisition, including the 14.54 hectares excised in 1977 became STATE LAND which is the property of the

Lagos State Government of Nigeria. The withdrawal and revocation of the 1977 Notice of Excision in Agidingbi Village by the Lagos State Government in 2008 has not been challenged by anybody including the respondents. The appellant has since the withdrawal and revocation of the 1977 excision by the Lagos State Government, regularized her own title to two parcels of land.

The respondents did not disclose to this Honourable Court that the land over which they obtained judgment is now STATE LAND and therefore the property of the Lagos State Government and not the respondents. If the Court was aware that the Lagos State Government had by a notice of withdrawal of excision/revocation published in the Punch Newspapers of Monday 25th February 2008 withdrawn and consequently revoked the excision of Agidinghi Village parcel B 14.54 hectares published as Notice No. 92 of 1977, the high Court would not have granted the ex parte order made on the 18th May 2011 Exhibit ?K?. The respondents deliberately withheld this vital information and misled the Court into granting the ex parte order for possession and demolition of all structures in Agidingbi including the applicant?s properties. ?

The order for possession in Suit No. ID/923M/99 was made on the 16th February 2000 pursuant to and under the special procedure for possession of land under Order 59 of the 1994 Lagos Rules. The warrant for possession was signed on the 4th August 2006; the writ of possession was signed on the 7th October 2010. Exhibits ?M? and ?N? to the affidavit in support of the motion dated 17th August 2011 respectively are copies of the said warrant for possession and the writ of possession. The writ of possessions were issued more than five (5) years and 10 years after the order for possession was made on the 16th February 2000 without an order of Court made on a motion ex parte or on notice contrary to the Rules of the High Court. Exhibit ?O? to the affidavit in support of the motion dated 7 August 2011 is a copy of the said order for possession made on the 16th February 2000. By virtue of the provisions of Order 53 Rule 7 of the High Court of Lagos State (Civil Procedure Rules) 2004 it is necessary to obtain the leave of Court to issue a writ of possession to enforce an order of possession after

the expiration of 3 months from the date of the order. The claimants/respondents did not obtain the leave of Court to issue a warrant of possession of 2006 as well as the writ of possession of 2010 as enjoined by law.

The appellant acquired her land holdings in Agidingbi as shown in exhibit ?D? from the Agidingbi Community and with respect to the land along Isheri Road now known as Lateef Jakande Road, Agidingbi exhibit ?E? from the Aruna Family. Neither the Agidingbi Community nor the Aruna family was parties in Suit No. ID/216/77L. The farmlands of the defendants in Suit No. ID/216/77L measuring about 12 – 15 acres in all are separate and distinct from the parcels of land belonging to the various persons and families in Agidingbi as well as the Community land. The appellant is neither a privy of the Lagos State Government nor of the Mogaji and Saka Families who were the defendants in Suit No.ID/216/77L and respondents in the ruling of the Court of Appeal in Appeal No. CA/L/649M/06.

?The appellant was not a party to the application brought by the Lagos State Government before the Court of Appeal in

2006 in Appeal No. CA/L/649M/06 and the ruling delivered by the Court of Appeal on the 26th April 2007. The appellant?s predecessors in title the Agidingbi Community and the Aruna Family were not parties to the application of the Lagos State Government in Appeal No. CA/L/649M/06 and the Ruling/decision the Court of Appeal delivered on the 26th April 2007. The application of the Lagos State Government which led to the ruling in Appeal No. CA/L/649M/06 is not similar to the application in this case. The appellant is not seeking to relitigate Suit No.ID/2107L. There has been no decision or ruling of a Court between the appellant, her predecessor in title and the respondents in respect of her two parcels of land.

The issues decided by the Court of Appeal in the said application of the Lagos State Government in 2007 are not the same as the issues raised by the appellant in the motion dated 17th August 2011. Neither the appellant nor her predecessors in title were parties in the matter before the Supreme Court in SC.173/2009. The parties and issues decided by the Supreme Court in SC.173/2009 are different from the parties and issues in the application dated 17th August 2011.

The appellant claims ownership of land in two different places in Agidingbi village and her root of title is the Agidingbi Community in respect of plots 3 – 17 in the Community layout plan No. OGEK1O3O/78 and the Aruna Family in respect of the land along Isheri Road now Lateef Jakande Road, Agidingbi. She merely by the certificate of occupancy regularized her occupation of the parcels of land in view of the withdrawal of the excision by the Lagos State Government in 2008.

?On the respondents’ part, it is recounted that they took out a writ of summons in Suit NO: ID/216/77/L and were declared by Hon. Justice B. Ola Martins, as the owners of the vast land situate at Agindingbi, Ikeja, Lagos consisting of 398 acres covered by Judgment Survey Plan NO: CK/LS/272 dated 22/12/1977 drawn by Abolade Coker, Licensed Surveyor, on 19th August, 1983. That eight years after the declaration of the land aforesaid in favour of the respondents, the defendants in the aforementioned action, brought an application on 23rd September, 1991 and prayed for:
i. An order for extension of time within which to set aside the judgment of 1983 as stated above;<br< p=””

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ii. An order for setting aside the judgment of 1983 and
iii. Leave of Court to substitute the Defendants in the said Suit No. ID/216/77L with Mohammed A.T. Mogaji &Ors (descendants of the Defendants in this Suit). On March 26, 1993 Honourable Justice B. Ola Martins, refused the Defendant?s application in its entirety.

The Defendants at the lower Court, now Appellants through the Law Firm of Femi Okunnu & Co proceeded to the Court of Appeal in Appeal No: CA/L/517/99 where they filed various applications that ensured delay in the prosecution of their appeal. Appellants therein through the Law Firm of Femi Okunnu & Co again filed applications dated 16th of March 2000, 24th February 2003 and 23rd May, 2003 for these reliefs, namely;
i. Leave to appeal the judgment in ID/216/77L;
ii. An order for extension of time to apply for leave;
iii. An order for leave to appeal against the judgment and
iv. Order for extension of time to file the Notice and Grounds of Appeal.

Most of the applications were withdrawn at different times and struck out. In one instance, precisely on 4th July, 2005,

Chief Okunnu SAN again asked the Court for another day to reconcile his application which was denied. The Court of Appeal presided over by Hon. Justice I. A. Salami J.C.A Struck out the application.

Alhaji Femi Okunnu SAN via a letter dated 30 April, 2002 wrote the Attorney General of Lagos State and advised the Lagos State Government to apply to be joined as an interested party and insinuated that the land was a State land since 1969.

That consequent upon the above advice by Alhaji Femi Okunnu SAN, the Lagos State Government filed a Motion for Joinder at the Court of Appeal in Appeal No: CA/L/649M/2006 between Attorney General of Lagos State v. Sule Otabiyi Akinole & Ors which was dismissed on the 26th April, 2007 by Hon. Justices Dalhatu Adamu, Monica B. Dongban Mensem and Hussein Mukhtar.

Finally, the matter was put to rest at the Supreme Court in SC.173/2009 when Honorable Justice A. M. Mukhtar J.S.C (CON) delivered the Ruling on 24th May, 2010 in favour of the Respondents herein.

?On 18th May, 2011, in Suit No: 1D/923M/99, Honourable Justice Candide Johnson ordered that Judgment creditors (Respondents) to remove all nuisances created and

demolished all unlawful structures covered by SURVEY PLAN NO: CKJLS/272 dated 22/12/1977 drawn by Abolade Coker, Licensed Surveyor.

Surprisingly, on 17th August, 2011, one Alhaja Muinat Adufe Ashorobi (who is allegedly claiming only 4 plots of land in the judgment land of 398 acres) through the law firm of Femi Okunnu & Co. brought post judgment joinder application to be joined as a defendant in Suit No: ID/923M/99. Honourable Justice S. B. A. Candide-Johnson delivered the ruling on 17 April, 2014. The Court said the Applicant attempted to reawaken and re-litigate a matter that was adjudged in relation, to ID/216/77L and ID/923/99, 31 years ago and 2000 (14 years ago,). The Court dismissed the Applicant?s application.

In order to activate the prosecution of the appeal, the Amended Appellant’s brief of argument, dated 6th October, 2017 and filed on 23rd October, 2017 was deemed filed by this Court at the hearing of the appeal on 6th February, 2019. So also the Amended Respondents’ brief of argument dated and filed on 19th January, 2018 was deemed filed on 6th February, 2019. Furthermore, the Appellant’s Reply to Preliminary Objection,

dated 5th February, 2019 and filed on 6th February, 2019 was deemed filed on the same date. In the appellant’s amended brief of argument, settled by Abumere A. Opara, MCIArb (UK), five issues were nominated for the determination of the appeal , to wit:
1. Whether the learned judge was right to hold that the action was consequent upon the judgment in Suit NO: ID/217/77L and whether Suit NO: ID/923M/99 by virtue of the special procedure under Order 59 of the High Court of Lagos State (Civil Procedure) Rules, 1994 was not a separate and distinct action predicated on a separate cause of action against new and separate defendants. Ground 1.
2. Whether the learned judge was right to hold that the appellant’s application dated 17th August, 2011 was caught by estoppel per rem judicatam. Ground 2.
3. Whether the learned judge was right to hold that the proper procedure for the appellant to take to protect her interest was to file a fresh action and not to come by way of motion. Ground 3
4. Whether the learned judge was right to hold that the motion dated 17th August, 2011 was an attempt to re- litigate Suit NO: ID/217/77L and Suit NO: ID/923M/99. Ground 4.

5. Whether the learned judge was right to refuse to entertain and determine the motion dated 17th August, 2011. Ground 5.

On his part, Ayo Opadokun, who settled the amended respondents’ brief of argument suggested three issues therein for the resolution of the appeal, namely:
1. Whether the principle of estoppel per rem judicatam was rightly applied by the lower Court? (Ground 2).
2. Whether the learned trial judge was right to hold that the remedy remaining for the appellant herein is to file a fresh action to protect her interest if any?(Grounds 3 and 4).
3. Whether the refusal of the appellant’s application dated 17th August, 2011 was right at the time same was refused? (Grounds 1 and 5).

It is noteworthy that the respondents filed a notice of preliminary objection on 4th June, 2017 by which they sought the dismissal of the appellant’s appeal. The same was argued at paragraphs 3.1-3.19 at pages 6-12 of the amended respondents’ brief of argument. The grounds upon which the preliminary objection was hinged are that:
a. Whether the appeal filed by the appellant herein is competent or not?

b. Whether the appellant not being a party to the suit at the lower Court can competently maintain any action in respect thereto?
c. Whether the appellant has locus standi to maintain this appeal.

The linchpin of the respondents’ contentions, is that the appellant being not a party to the Suit NO: ID/923M/99, which gave rise to this appeal and did not take any step to appeal against the Order made by the Court below in respect of the aforesaid suit as an interested party, has no capacity or standing to have filed this appeal, without seeking the leave of the Court below or of this Court. And that consequently, the appeal is incompetent, such that this Court lacks the jurisdiction to entertain and determine the appeal herein.

On his part, the appellant’s learned counsel submitted to the effect that the appeal herein is not against the judgment and orders made in respect of the Suit No.ID/923M/99 which touched on the Order of possession made on 16/2/2000, nor of the Order of Forfeiture made in respect of the Suit NO: ID/216/77L. The appellant’s grouse is against the refusal of the learned trial judge to hear and determine her own motion

filed on 17/8/2011 wherein she contended that the respondents in their quest to enforce the order of possession made in their favour on 16/2/2000, failed to comply with the provisions of Order 59 of the Lagos State High Court (Civil Procedure) Rules, 1994 which later became Order 53 of the Lagos State High Court (Civil Procedure) Rules, 2004. Therefore, according to appellant’s learned counsel, since the appellant is adversely affected by the wrong procedure by which the Order of possession of 16/2/2000 was procured by the respondents, she did not need to apply and be joined as an interested party, before filing this appeal.

Resolution of Preliminary Objection:
The law has remained very well settled beyond per adventure, by a long and unbroken thread of judicial authorities of the Supreme Court and this Court to the unarguable conclusion that jurisdiction is the vires, the power, that a Court has and possesses which enables it to hear and adjudicate on any matter placed before it for its determination. That is, jurisdiction is the authority that a Court has in order to decide any matter laid before it or even take cognisance of matters presented before it in

a formal way for its decision on such matters. Therefore, where a Court lacks the jurisdiction to try any matter presented before it, such a decision amounts to nothing as it will be tantamount to an exercise in futility. To underscore the criticality and quitessence of jurisdiction to adjudication, the Supreme Court in a plethora of decided authorities, one of which is Hon. Ehioze Egharevba v. Hon. Crosby Osadulor Eribo & Ors (2010) 9 NWLR (pt. 1199) 411; (2010) LPELR – 9716 (SC); (2010) 3 SCNJ (Pt. 11) 441 at 453 – 454, re-echoed the law succinctly, per Adekeye, JSC that:
“Jurisdiction is a term of comprehensive import embracing every kind of judicial action.
It is the power of a Court to decide a matter in controversy and presupposes the existence of a duly constituted Court, with control over the subject matter and the parties. Jurisdiction also defines the power of the Court to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which judges exercise their authority. Jurisdiction is equally to Court, what a door is to a house. That is why the question of a Court’s jurisdiction is called a

threshold issue, because it is at the threshold of the temple of justice. Jurisdiction is a radical and fundamental question of competence, for if the Court has no jurisdiction to hear the case, the proceedings are and remains a nullity however well-conducted and brilliantly decided they might have been. A defect in competence is not intrinsic but rather extrinsic to adjudication. Oloba v. Akereja (1988) 3 NWLR (pt. 84) pg. 508; Oloriode v Oyebi (1984) 1 SCNLR pg. 390, Ezomo v. Oyakhire (1985) 1 NWLR pt. 2 pg. 105; Petrojessica Enterprises Ltd v. Leventis Technical Co. Ltd (1992): 2 SCNLR pg. 341, Barclays Bank v. Central Bank of Nigeria (1976) 6 SC pg. 175, African Newspapers of Nigeria v. Federal Republic of Nigeria (1985) 2 NWLR pt. 6 pg. 137, Adeleke v. OSHA (2006) 16 NWLR pt. 1006 pg. 608; Attorney General Anambra State v. A – G Federation (1993) 6 NWLR pt. 302 pg. 692, Saleh v. Monguno (2003) 1 NWLR pt. 801 pg. 221. The issue of jurisdiction being fundamental can be raised and challenged at any stage of the proceedings in the lower Court, in the Court of Appeal or even for the first time in the Supreme Court. The issue of jurisdiction being so pivotal can

be raised suo motu by the Court so long as the parties are accorded the opportunity to react to the issue.”
The eminent jurist and revered Mohammed Bello, C.J.N. (now of blessed memory) in the judicial words on marble on jurisdiction, in Chief Utuedo Utih & 6 Ors v. Jacob U. Onoyivwe & 5 Ors (1991) 1 SCNJ 25 at 49, had stated that:
“Jurisdiction is the blood that gives life to the survival of an action in a Court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it, would be an abortive exercise.”
The reason for this analogy is not farfetched. It is because the life of the flesh is in the blood. In other words, jurisdiction is the life in the action, placed before the Court, for adjudication.
In Madukolu & others v. Nkemdilim (1962) All NLR 581; (1962) 2 SCNL 341 at 587 – 590, the Federal Supreme Court held on jurisdiction and the competence of a Court thus:
“Put briefly, a Court is competent when –
a) It is properly constituted as regards members and

qualification of the members of the bench, and no member is disqualified for one reason or another; and
b) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction;
and
c) The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.”
These three conditions stated above must co-exist before the Court can be vested or clothed with proper competence and jurisdiction. See The Military Administrator Benue State & 20 Ors. v. Captain Clement Abayilo (Rtd) (2001) FWLR (Pt.35) page 604, (2001) 5 NWLR (Pt. 705) 19: Ishola v. Ajiboye (1994) 19 LRCN 35, (1994) 6 NWLR (Pt. 352) 506: Matari v. Dan Galadima (1993) LRCN 335, (1993) 3 NWLR (Pt. 281) 266; A-G., Anambra State v. A-G. Federation (1993) 6 NWLR (Pt. 302) page 692; Odofin v. Agu (1992) 3 NWLR (Pt. 229) page 350.

The jurisdiction of the Court is determined by the cause of action of the plaintiff as endorsed on the writ of summons or from both the writ of summons and the statement of claim.

Where however, an action is commenced by Originating summons then it is the reliefs sought as well as the averments in the affidavit in support of the originating process that would be examined to discern if the Court has jurisdiction.
These would be relied on if the facts placed before the Court as contained in the statement of claim or the affidavit in the case of originating summons are clear and unambiguous to enable it determine the issue. This is because it is the plaintiff who invokes the constitutional right for a determination of his right and accordingly the exercise of the judicial powers of the Constitution vested in the Courts. A-G., Oyo State v. NLC (2003) 8 NWLR (Pt. 821) 1; Akande & 2 Ors. v. Busari Alagbe & Anor (2001) FWLR (Pt. 38) page 1352, (2000) 15 NWLR (Pt. 690) 353; A-G, Federation v. Guardian Newspaper Ltd. & 5 Ors. (2001) FWLR (Pt. 32) 93, (1999) 9 NWLR )Pt. 618) 187; Messrs N. V. Scheep & Anor. v. The MV’S Araz & Anor. (2000) FWLR (Pt.34) 556, (2000) 15 NWLR (Pt. 691) 622; NEPA v. Atukpor (2001) FWLR (Pt. 20) 626. (2000) 1 NWLR (Pt. 693) 96; General Sani Abacha & 3 Ors. v. Chief Gani Fawehinmi (2000) FWLR (Pt.4) 557, (2000) 6 NWLR

(Pt. 660) 228; Okulate & 4 Ors. v. Awosanya & 2 Ors. (2000) 2 NWLR (Pt. 646) 530-536.

In the instant matter, it is indisputable that the appellant was not a party to either the Suit NO: ID/216/77L nor the Suit NO: ID/923M/99. Her quarrel is that the Order of possession made in favour of the respondents on 16/2/2000, by the Court below vide the Suit NO: ID/923M/99, which adversely affected her interest in the land that the respondents being the Claimant’s against unknown persons as defendants, at the Court below, had applied for summary possession of the said land, was not in compliance with the special procedure of summary proceedings for possession of landed property occupied by squatters or without the owner’s consent as laid out in Order 59 of the Lagos State High Court (Civil Procedure) Rules, 1994, which was the applicable rule of the Lagos State High Court, at that time. And that was why she applied by the motion on notice, filed on 17th August, 2011, for the aforementioned Order of possession made on 16/2/2000, in favour of the respondents to be set aside. The respondents opposed that motion on notice and urged the Court below to refuse the

appellant’s application, on the ground that the appellant being not a party in the Suit NO: ID/923M/99, could not question any order made in respect of that suit and that the appellant’s said motion on notice was incompetent, hence the learned trial judge had no jurisdiction to entertain and determine it. His Lordship agreed with the respondents and dismissed the appellant’s application. That is why the appellant came to this Court. It is amazing and amusing that the appellant contends that she is not challenging the validity of the order of possession made on 16/2/2000 in respect of the Suit NO: ID/923M/99, but that the said Order was not made in compliance with the provisions of the Lagos State High Court (Civil Procedure) Rules, 1994. It does not require any hard thinking, to my mind, to understand that once the appellant’s grouse is that the Order of possession made on 16/2/2000 in respect of the Suit NO: ID/923M/999 was not made in compliance with the provisions of Order 59 of the Lagos State High Court (Civil Procedure) Rules, 1994; it meant that she was challenging the validity of the said Order of possession in question. However for the appellant to

competently challenge that order of possession, which was made in respect of the Suit NO: ID/923M/99; she needed to have been a party to that suit and where she was not a party, as clearly she was not, then she needed first to apply to the Court below to be joined as a party to the said suit, before she could have any say in respect of whatever decision and/or Order made by the Court on that suit. Therefore, since the appellant was not originally a party nor was she later joined as a party to the suit in question, her motion on notice of 17th August, 2011 targeted at setting aside the order of possession made on 16/2/2000, could not fly an inch. The said motion on notice was initiated by a stranger to the Suit No: ID/923M/99 which gave birth to the aforesaid order of possession. That was why the appellant’s motion on notice in question, was ruled as being incompetent and a fortiori, the Court below was deprived of the jurisdictional competence to hear and determine it. Be that as it may, it must be understood that the appellant did not attempt to appeal against the decision in Suit NO: ID/923M/99, therefore I am unable to comprehend the

contentions of the learned respondents’ counsel to the effect that the appellant having not participated in the aforesaid suit, needed the leave of the Court below or of this Court to appeal against that decision. Her appeal is against the decision of the learned trial judge who declined to hear and determine her motion on notice filed on 17th August, 2011, for want of his jurisdiction to so do. In the circumstances, the authorities of Akinbinu v. Oseni (1992) 1 NWLR (pt.215) 112; Allanah & Ors v. Kpolokwu & Ors (2016) LPELR – 40724 (SC), relied upon by the learned respondents’ counsel, which considered the effect on an appeal filed by a person who was not a party at the trial Court and who neither sought the leave of that Court nor the leave of the Court of Appeal, before filing his appeal, thereby rendering such an appeal as being incompetent, are not apposite and relevant to the facts of the instant matter.
I have perused the Amended Notice of Appeal, filed on 20/02/2018 and was deemed by this Court as properly filed on 06/02/2019. Grounds 2 and 5 of the said amended notice of appeal clearly border on the question of jurisdiction which do not require the leave of

this Court for them to be raised. The authority of Petrojessica v. Leventis Motors, supra, is quite apposite, to the effect that the question of jurisdiction being a threshold issue which can be raised at any stage of the proceedings at the trial Court or the Court of Appeal or even at the Supreme Court, for the first time, or even orally, or suo motu by the Court itself, an appellant does not require the leave of the Court to raise and ventilate it. The decision by the Court below, in declining its jurisdiction to hear and determine the appellant’s motion on notice of 17th August, 2011 was appealable, as of right by the appellant who was directly affected by that decision, and she duly exercised her right of appeal against that decision, donated to her under Section 241 (1)(a) of the Constitution of the Federal Republic of Nigeria,1999, as amended. She did not require the leave of the Court below nor of this Court to file her notice of appeal against the ruling of the learned trial judge rendered on 17th April, 2014 in respect of the respondents’ application to which the appellant was a respondent. Therefore, the appellant being the aggrieved party because of

the ruling of 17th April, 2014, given against her was eminently entitled to challenge it by way of an appeal to a higher Court, which is this Court. Odugbemi & Anor v. Shanusi & Ors (2018) LPELR- 44868 (CA); Nyako v. Adamawa State House of Assembly & Ors (2016) LPELR- 41822(SC); People’s Democratic Party & Ors v. Timipre Sylva & Ors (2016) LPELR- 42559 (SC). Therefore, the appellant’s appeal is competent and this Court has the requisite jurisdictional competence to hear and determine it on its merits.

In sum, I find no merit in the respondents’ preliminary objection. It is accordingly dismissed.

In my consideration and determination of the appeal, I adopt the three issues nominated by the learned respondents’ counsel for the resolution of this appeal. And they shall be considered together.

Appellant’s Arguments:
The appellant’s learned counsel contended firstly to the effect that the writ of possession dated 7th October 2010, warrant of possession dated 4th August 2006 as well as the order made on the 18th May 2011 were all made by the trial Court towards the enforcement and in the execution of the order for possession

made on the 16th February 2000 pursuant to the special procedure of Summary Proceedings for Possession of Landed Property Occupied by Squatters or Without the Owner?s Consent under Order 59 of the 1994 which later became Order 53 of the 2004 and 2012 Rules.

The prayers on the appellant?s motion dated 17th August 2011 were directed against the writ of possession dated 7th October 2010, warrant of possession dated 4th August 2006 as well as the order made on the 18th May 2011 and did not challenge the validity of the order of possession of 16th February 2000 made in ID/923M/99 nor the order of forfeiture made in the judgment delivered in ID/216/771. The appellant was by the motion dated 7th August 2011 merely inviting the Court to consider and or determine whether the claimants/respondents in their quest to enforce and execute the order for possession of 16th February 2000 complied with the provisions of Order 59 of the 1994 which later became Order 53 of the 2004 and 2012 Rules as to the procedure for the enforcement of the judgment and order obtained on the 16th February 2000 against unknown persons under the special procedure of Summary

Proceedings for Possession of Landed Property Occupied by Squatters or Without the Owner?s Consent under Order 59 of the 1994 which later became Order 53 of the 2004 and 2012 Rules and no more. She was not trying to relitigate ID/216/771 and ID/923M/99.

Contrary to the assertion of the claimants/respondents the decision in ID/923M/99 was not to fortify the judgment in ID/216/771 but a separate and distinct action for recovery of possession of land occupied by unknown persons.

This matter centre on and raises the question regarding the proper application of Order 53 of the High Court of Lagos State (Civil Procedure) Rules 2004 now 2012 Rules. Order 53 is a unique and special procedure for the recovery of possession of land in possession of unknown persons. The Order is a complete package from start to finish. The procedure under Order 53 is in a class of its own. It contains provision on how to initiate, how the orders are made, how a party affected can be allowed to come in and be heard at any stage of the proceedings, how the writ for possession can be obtained, how the order for possession can be enforced by means of a writ of possession

and how the orders made therein can be reviewed by the Judge. It tells us what to do and how to go about every stage from start to finish. It is a complete package. It is permissible for the appellant to have brought the application dated 17th August 2011 seeking to be joined as a defendant in ID/923m/99 and to set aside the warrant and writ of possession which were issued by the High Court in the execution of the order for possession made on the 16th February 2000 pursuant to Originating Summons under Order 59 of the 1994 Rules now Order 53 of the 2004 and 2012 Rules. The appellant has not in any way invited the Court to review the decision in ID/216/77L.

The decision of the Court of Appeal in CA/L/649/06 dated 26th April 2007 do not constitute issue estoppel per rem judicatam as it relates to the appellant?s motion dated 17th August 2011. The questions to be decided in the motion dated 17th August 2011 were not the questions decided by the Court of Appeal in Appeal No. CA/L/649M/06 in 2007. The claimants/respondents regarded Suit No. ID/923M/99 as an offshoot and or a continuation of Suit No. ID/216/771 rather than as a distinct and separate

action against new parties who were not the parties in the earlier case and for a different relief for possession flowing from a different cause of action. The application filed by the Lagos State Government in the Court of Appeal was directed against the judgment in Suit No. ID/216/77L and not against the Order for Possession made in Suit No ID/923M/99. The objection should not have been upheld. The lower Court ought to have entertained and or determined the motion of 17/8/11 on its merits.

The Warrant for Possession dated 4th August 2006, as well as the writ of possession and the Order of 8th May 2011 were all issued and made pursuant to the Order of Possession made in ID/923M/99 on the 16 February 2000 and in accordance with the procedure prescribed under Order 53 of the 2004 Rules which is retained as Order 53 of the 2012 Rules.

The order of 18th May 2011 which was made on the basis of the ex parte application of the claimants/respondents dated 1st March 2011 ought not to have been made on the ground that it was tainted with material misrepresentation, misstatements and concealment of facts by the claimants/respondents.

The warrant for possession dated 4th August 2006 was issued more than 3 months after the Order for Possession was made on the 16th February 2000 without the leave of Court first had and obtained contrary to the provisions of Order 53 Rule 7(1) of the High Court of Lagos State (Civil Procedure) Rules 2004 now 2012 Rules. The writ of possession issued on the 7th October 2010 and signed by one Taiwo Ologun, agents of the claimants/respondents was issued after the expiration of 3 months from the date of the order of possession made on the 16th February 2000 without the leave of Court contrary to the provisions of Order 53 Rule 7(1) of the High Court of Lagos State (Civil Procedure) Rules 2004 now 2012 Rules.

Respondents’ Arguments:
The submissions of learned respondents’ counsel are largely to the effect that the respondents had vide an earlier action in Suit NO: ID/216/77L, obtained judgment in their favour in respect of 398 Acres of land located in Agindingbi, Ikeja as shown in the Survey Plan CK/LS/272. That the appeal against that judgment to the Court of Appeal was dismissed and also a further appeal to the Supreme Court was dismissed, in favour of the respondents.

Furthermore, the respondents’ learned counsel submitted to the effect that the Suit NO: ID/923M/99, which was filed by the respondents, pursuant to Order 59 of the Lagos State High Court (Civil Procedure) Rules, 1994 was to actualize the judgment that was obtained in their favour in the earlier action vide the Suit NO: ID/216/77L. And that the appellant’s motion on notice, which was filed on 17th August, 2011 was meant to reopen the subject matter of the Suit NO: ID/216/77L, that had been resolved from the Lagos State High Court, through the Court of Appeal and up to the Supreme Court, all in respondents’ favour. It was further submitted for the respondents that the appellant’s motion on notice in question was predicated upon the Certificate of Occupancy NO: 88/88201E, in respect of only one plot, which was issued by the Lagos State Government, whose application for joinder in the Suit No: ID/216/77L, was rejected by the Court below. Therefore, the respondents insisted that the appellant’s motion on notice was tantamount to reopening of a matter that had long been resolved by the Courts, in favour of the respondents, hence the appellant is estopped from so

doing on the principle of estoppel per rem judicatam. So, according to the respondents, the learned trial judge was right by declining jurisdiction to hear and determine the appellant’s motion on notice.

Resolution of issues:
The doctrine of estoppel is anchored on the immutable principle of law to the effect that once a matter has been heard and determined by a competent Court with the requisite jurisdictional power to so do, it becomes unacceptable for a litigant to later re-litigate and reopen the same matter that had been determined and settled by the Court. The logic behind the principle is simply put, that there must be an end to litigation. I had cause, more recently to restate the principle of estoppel in Sunday Ofoma & Anor v. Anthony Obinwe & Anor (2016) LPELR – 41042( CA), at 12 ? 15, thus:
“In law, estoppel is an admission or something which the law views as equivalent of an admission. By its very nature, it is so important and conclusive that the party whom it affects will not be allowed to plead against it or adduce evidence to contradict it. Yoye v. Olubode (1974) All NLR 657; Ukaegbu v. Ugoji (1991) 6

NWLR (pt. 196) 127; Koiki v. Magnusson (2001) FWLR (pt. 63) 167. It is a common law principle which has gained statutory acceptance in Nigeria, such as Section 169 of the Evidence Act No. 18 of 2011. It forbids a person or party who having shown that he agrees with a state of affairs, to later turn round and disclaim his act or omission. Hence both in common and statutory law, such conduct is not permitted. For example in Section 151 of the Evidence Act, 2004 which is in pari materia with Section 169 of the Evidence Act, 2011, the use of the phrase that: neither he nor his representative in interest shall be allowed is emphatic. This was explained better by the apex Court in Ude v. Osuji (1998) 10 SCNJ 75 thus: The principle of estoppel by conduct is that where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relation between them and to be acted upon accordingly, then once the other party had taken at his word and acted on it, then the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance has been made by him.

He must accept their legal relation as modified by himself even though it is not supported in point of law by any consideration, but only by his word or conduct. See Combe v. Combe (1951) 1 All ER 69 at 770.
There are principally, two kinds of estoppel. In Osunrinde & Ors v. Ajamogun & Ors (1992) 7 SCNJ 79; (1992) LPELR 2819 SC at 39, his Lordship, Ogundare, JSC (now of blessed memory) succinctly stated, to wit: “Now, there are two kinds of estoppel by record inter partes or per rem judicatam as it is generally known. The first is usually referred to as cause of action estoppel and it occurs where the cause of action is merged in the judgment, that is transit in rem judicatam. There is however, a second kind of estoppel inter partes and this usually occurs where an issue has earlier on been adjudicated upon by a Court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in these circumstances, issue estoppel arises.?
Furthermore, on the effect of estoppel, his Lordship, at page 46 of the report, stated: ?The general rule of law

undoubtedly is that no person is to be adversely affected by a judgment in an action to which he was not a party, because of the injustice in deciding an issue against him in his absence. But this general rule admits of two exceptions, one is that a person who is in privity with the parties, as he is called is bound equally with the parties, in which case, he is estopped by res judicata: the other is that a person may have so acted as to preclude himself from challenging the judgment in which case he is estopped by his conduct.?

In order for the principle of res judicatam by way of estoppel to effectively operate against a later action, certain conditions must coexist in the previous action vis-a-vis the later action. They are namely:
a) there must be a judicial decision rendered by a Court with the competent jurisdiction to so do;
b) the issues or the claim in both the previous and present actions are the same;
c) the res, that is, the subject matter of the litigation in both the previous and present action, is the same;
d) the decision relied upon in support of the plea of estoppel per rem judicatam is valid and subsisting and ?

e) the parties to the present action were either parties to the previous action or they were privies to any of the parties in the previous action.
The law remains very well settled to the effect that where any of the above listed conditions is lacking, the plea of estoppel per rem judicatam would fail and become unavailing. Ebba v. Ogodo (2000) 10 NWLR (pt.675) 387; Anwoyi v. Shodeke (2006) 13 NWLR (pt.996) 34; Omnia ( Nig) Ltd v. Dyktrade (2007) 14 NWLR (pt.1058) 576; Nigergate Ltd v. Niger State Government (2008) 13 NWLR (pt.1103) 111; Chief Imam Busari Dauda & Ors v. Attor. Gen. Lagos State & Ors (2011) LPELR ? 931 (SC) @ page 28.

Upon my perusal of the record of appeal, it is clear to me as crystals, that appellant’s motion on notice filed on 17th August, 2011, is with respect to part of the 398 acres of land in Agindingbi, Ikeja area, covered by the Survey Plan No. CK/LS/272 dated 22/12/1977, drawn by Abolade Coker, the Licensed Surveyor and the same land had been adjudged as belonging to the respondents vide the Suit NO:ID/216/77L, on 19/08/1983. The Lagos State Government, who was a party to the suit

aforesaid, had wanted to re-litigate in respect of the said parcel of land and the Court of Appeal in her ruling on the Motion on Notice NO: CA/L/649M/2006, at the instance of the Lagos State Government, refused the application on 26/4/2007. On a further appeal to the Supreme Court vide the Appeal NO: SC.173/2009, by the Lagos State Government, the Apex Court on 24th May, 2010, ruled in favour of the respondents against the Lagos State Government. The appellant’s showings vide Exhibits C, D, E, F, and G, attached to her motion on notice of 17th August, 2011, made it clearly manifest that at one time, the Lagos State Government had excised 14.54 hectares, that is, about 30 acres out of the 398 acres of land at Agindingbi, Ikeja area and the same was released to the said Community. Thereafter, on 28th March, 1978, plots 13 ? 17 thereof, out of the 30 acres of land released to the Agindingbi Community was allegedly allotted to the appellant by Agindingbi Community and that later on 25th February, 2008, the Lagos State Government revoked the notice of excision of the 30 acres earlier released to the Agindingbi Community.

Thereafter, according to the appellant, she applied to the Lagos State Governor so that her occupation of the plots allotted to her by the Agindingbi Community be regularized and the application was granted whereby she was issued with a Certificate of Occupancy vide Exhibit G attached to the motion on notice of 17th August,2011. It should be remembered that the respondents vide the Suit NO: ID/216/77/L, had obtained judgment in their favour in respect of the 398 acres of land at Agindingbi on 19/08/1983 and the Lagos State Government was a party to the suit aforementioned. It is therefore not difficult to decipher that the appellant’s title to the plots of land which were allotted to her by the Agindingbi Community and later regularized by the Lagos State Government who issued her with a Certificate of Occupancy, that those plots of land were cut out of the 398 acres of land awarded to the respondents in 1983. So that although the appellant was not a party to the Suit NO: ID/216/77L, since the Lagos State Government, was a party to the Suit No. CA/L/649M/2006, the appellant became a privy of the Lagos State Government. Hence, the learned trial judge at pages 313-314 of the record of appeal had found that:

“The substance of the judgment creditor’s counsel’s contention is no more than that the Lagos State Government to whom this Applicant looks to as the foundation of her interest if any, in the lands covered under Survey Plan No. CK/LS/272 had previously tried and failed to re-litigate ID/216/77L upon which the Orders in ID/923M/99 are founded and that there is no difference between the case put forward by this Applicant and that upon which the Lagos State Government lost, as evidenced by the ruling of the Court of Appeal dated 25/4/2007 in CA/L/649M/2006.”
My Lords, I must say that I have no difficulty at all in agreeing with the submissions of the respondents’ learned counsel to the effect that the foundation of the appellant’s title to the plots of land at Agindingbi, Ikeja area, given to her by the Agindingbi Community and regularized for her by the Lagos State Government who issued her with a Certificate of Occupancy in respect of the said plots of land. And if the attempt by the latter, described as Party Interested/Applicant, was adjudged by this Court in its decision rendered vide the Appeal No: CA/L/649M/2006 on

26/4/2007 and that by the Supreme Court on 24/5/2010 in re – Appeal NO: SC.173/2009, to be a re litigation of the action in Suit No: ID/216/77L, decided in favour of the respondents in 1983 at the Court below, it follows that the appellant’s motion on notice filed on 17th August, 2011 suffers the same fate, that is, it is tantamount to a re-litigation of the same subject matter which had been decided by the Court below in 1983; this Court in 2007 and the Supreme Court in 2009. It is instructive that the learned appellant’s counsel, rightly conceded at paragraph 4.16 of the amended appellant’s brief of argument to the effect that the application aforesaid, by the Lagos State Government at this Court, was targeted “against the judgment in Suit No: ID/216/77L”, which was the primary judgment in this matter, that awarded the 398 acres of land at Agindingbi, Ikeja area in favour of the respondents. Undeniably, the appellant’s motion on notice in question was filed with reference to the decision in Suit NO: ID/923M/99 which was an offshoot of the judgment in Suit NO: ID/216/77L. Therefore, it is not farfetched, to conclude that the appellant’s motion on notice in

question was caught in the web of estoppel per rem judicatam. The principle was well explained by the Supreme Court in Yusuf v. Adegoke & Anor. (2007) 11 NWLR (pt.1045) 332 @ 361-362, per Aderemi, JSC., thus:
“It has become well entrenched in our civil jurisprudence that 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 relitigate 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 republicae ut sit finis litium. A successful plea of estoppel per rem judicatam ousts the jurisdiction of the Court before which it is raised.”
Further see: Oshodi v. Eyifunmi (2000) 13 NWLR (pt.684) 298 @ 326. Instructively, the Supreme Court in Coker v. Sanyaolu (1976) 10 N.S.C.C.566 @ 574- 575, succinctly explained the word: “privies”, thus:

“It was obvious, in the course of argument of learned for the respondent that he misunderstood the terminology “Privies” in relation to the doctrine of Res Judicata. Privies are of three classes and they are (1) Privies in blood (ancestor and heir); (2) Privies in law (as testator and executor; intestate and administrator) and (3) Privies in Estate (which we think is germane to the case in hand) as vendor and purchaser, lessor and lessee (see also Halsbury’s Laws of England 3rd Edition p.156 Article 372)”.
In the instant case, it is glaringly clear on the facts and circumstances already analyzed earlier in this judgment, that the appellant is a privy in estate, of the Lagos State Government, from whom she derived her title to the plots of land given to her by the Agindingbi Community and later regularized by the Lagos State Government who issued her with a Certificate of Occupancy over her plots of land. Hence, the appellant is bound by the decision of this Court in CA/L/649M/2006 rendered on 26/4/2007, which was against her predecessor-in-title, the Lagos State Government. Afortiori, the appellant is prevented by the operation of the doctrine of estoppel per rem judicatam, from

reopening any issue with respect to the 398 acres of land at Agindingbi, Ikeja area, adjudged in favour of the respondents by the Court below, vide the Suit No: ID/216/77L in 1983; which is extant and binding on her. In effect, the learned trial judge was right in declining the Court’s jurisdiction to entertain and determine the appellant’s motion on notice filed on 17th August, 2011.
I have considered the advice rendered by the learned trial judge to the appellant, to the effect that the remedy available to the appellant, is to file a fresh suit and thereby ventilate her interest in the land in question. I am afraid, that advice is non sequitur, on the facts and circumstances of this matter which have been profusely analyzed in this judgment.

In sum, issues 1 and 3 discussed in this judgment, are resolved against the appellant. Therefore, the appeal stands dismissed. Consequently, the ruling of the Lagos State High

Court, delivered by Candide Johnson, J., in re – Suit NO: ID/923M/ 1999 on 17th April, 2014, is hereby affirmed.
Costs of this appeal is assessed at N200,000, in favour of the respondents, against the appellant.

MOHAMMED LAWAL GARBA, J.C.A.: My learned brother Tom Shaibu Yakubu, JCA, has comprehensively and ably considered the germane issues that call for decision by the Court in the lead judgement written by him in this appeal, a draft of which I read before now. I completely agree with the reasoning for the conclusion that the legal purport, and consequence of the motion filed by the Appellant before the High Court was to re-open and re-litigate the primary issue of ownership of the land in question decided in favour of the Respondents in Suit No. ID/216/77/L in 1983, which was the foundation of the order and writ of possession sought to be challenged by the Appellant.
As demonstrated in the lead judgement, the principle of estoppel per rem judicata, does not and would not permit that course of action since it is public policy that there must be an end to litigation. See The Honda Place Limited v. Globe Motors Holdings

Nigeria Limited (2005) 7 SC (Pt.111)182, Agbogunleri v. Depo (2008) 2 MJSC, 70, Dagaci of Dere v. Dagaci of Ebwa (2006) ALLFWLR (306) 786, Etim v. Obot (2010) 12 NWLR (1207) 108, Attorney General, Nasarawa State v. Attorney General, Plateau State (2012)3 MJSC (Pt.111)118.
I join the lead judgement in dismissing the appeal in the terms thereof.

JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother TOM SHAIBU YAKUBU JCA. afforded me the opportunity of reading before today a draft copy of the lead judgment just delivered.
?I adopt the judgment as mine with nothing further to add.

Appearances:

A.A. Osara, Esq.
For Appellant(s)

Ayo Opadokun, Esq. with him, Hassan Musa, Esq., Akawo Kayode, Esq., Francis Dada, Esq. and Bolanle Opadokun, Esq.For Respondent(s)

Appearances

A.A. Osara, Esq.For Appellant

AND

Ayo Opadokun, Esq. with him, Hassan Musa, Esq., Akawo Kayode, Esq., Francis Dada, Esq. and Bolanle Opadokun, Esq.For Respondent