CHIEF OLUWASEGUN OGUNLANA & ORS v. TALEMU FASANYA & ORS (2019)

CHIEF OLUWASEGUN OGUNLANA & ORS v. TALEMU FASANYA & ORS

(2019)LCN/13397(CA)

In The Court of Appeal of Nigeria

On Friday, the 31st day of May, 2019

CA/L/110/2016

RATIO

LEGAL PRACTITIONER: ORIGINATING PROCESSES MUST BE SIGNED BY A LEGAL PRACTITIONER AND NOT A LAW FIRM OTHERWISE THE DOCUMENTS BECOME INCOMPETENT

In line with the settled position of the law and decision of the Supreme Court in OKAFOR Vs. NWEKE (Supra) at the relevant time, this Court, per IKYEGH, JCA, at pages 13 to 15 of the judgment held as follows,:
The originating processes in the action at the Court below (the application for writ of summons and statement of claim) having been signed by a law firm, not by an identifiable legal practitioner, are incompetent and the proceedings of the Court below leading to judgment in the case built on the incompetent processes are equally incompetent and a nullity and must be set aside. I would allow the appeal on this issue and set aside the originating processes and the proceedings of the Court below for being incompetent and a nullity. The judgment of the Court below is set aside for lack of jurisdiction.PER TIJJANI ABUBAKAR, J.C.A.

NULLITY: DEFINITION OF NULLITY IN LAW
Also in SALEH Vs MONGUNO Supra cited by Claimants Counsel the same apex Court pronounced a nullity in law to be a void act which has no legal consequence.
The act is not only bad but incurably bad.PER TIJJANI ABUBAKAR, J.C.A.

ESTOPPEL: ESTOPPEL PER REM JUDICATA : DEFINITION
Estoppel Per Rem judicata is a rule of evidence whereby a party is precluded from disputing in any subsequent proceedings matters which had been adjudicated upon previously by a competent Court.PER V

ESTOPPEL: ESTOPPEL PER REM JUDICATA: WHEN ESTOPPEL PER REM JUDICATE WILL NOT APPLY
However in the same AJIBOYE Vs. ISHOLA, the apex Court pronounced the principle of estoppel is inapplicable where the judgment is declared a nullity.PER TIJJANI ABUBAKAR, J.C.A.

“ONE CANNOT PUT SOMETHING ON NOTHING”

The settled position of the law, as within the limits of my humble understanding, as is often cited in MACFOY Vs. UAC (1962) 1 AC 100, is that one cannot put something on nothing and expect it to stand; even without any external factor, it would definitely collapse like pack of cards. See: OTU Vs. ACB INTERNATIONAL BANK PLC & ANOR (2008) LPELR ? 2827 (SC); NIPSS, KURU Vs. KRAUS THOMPSON ORGANISATION & ORS (2015) LPELR 24922 (CA); UBA Vs. DANA PHARMACEUTICALS LIMITED (2018) LPELR – 43799 (CA).PER TIJJANI ABUBAKAR, J.C.A.

JUDGMENT: WHAT IS A NULL PROCEEDING OR JUDGMENT

A null proceeding or judgment is deemed not have even existed at all, it cannot therefore be the basis for the assertion of rights or to command obligation; it has no legal relevance, such judgment cannot be employed as pedestal upon which to concrete a valid and sustainable decision. It therefore stands positive reason that this Court cannot rightly make an order of retrial of a suit which it had declared a nullity on the basis that the Originating processes filed by the Claimant were incompetent, hence the Court lacked jurisdiction to entertain the claim.PER TIJJANI ABUBAKAR, J.C.A.

RES JUDICATA: FOUR INGREDIENTS TO PROVE RES JUDICATA
There are four conditions precedent to the successful plea of the doctrine of res judicata: (1) That the parties or their privies in the previous case and the present one are the same. (2) That the issues and subject matter in the two cases are the same. (3) That the adjudication in the previous case was given by a Court of competent jurisdiction; and (4) That the previous suit finally decided the issues between the parties or their privies. All these conditions being present in the instant case, the doctrine of res judicata applies to defeat the suit.
See also IKOTUN Vs. OYEKANMI & ANOR (2008) LPELR 1485 (SC). In the present case, the Appellants counsel strenuously argued that the subject matter in Suit No. 139/1911 is different from the one in this case.PER TIJJANI ABUBAKAR, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria

Between

1. CHIEF OLUWASEGUN OGUNLANA
2. ALHAJI MOSHOOD ANDU OSHIKOYA
3. MR. SHAMSUDEEN TIJANI AWO
4. MR FATAI OLANUBI MAYAN
5. PRINCE AKEEM ADEYERI ALOGBA
(For themselves and on behalf of the
Orelade/Ladera Family of Gberigbe Orelade) Appellant(s)

AND

1. TALEMU FASANYA
2. TAJUDEEN SHOKENU
3. RASHIDI KARIMU
4. KOLAWOLE KEKEOKUTA
5. KOREDE OLUDERU
6. MUDASHIRU BISIRIYU
7. FATAI ODUS
8. SUNDAY OSHIKOYA Respondent(s)

TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This appeal is another exposure to the incidence and consequence of the binding decision of the Supreme Court of Nigeria in OKAFOR Vs. NWEKE (2007) 10 NWLR (Pt. 1043) 521 and its impact on the nullity of proceedings and judgment of a Court hinged on originating processes signed by a law firm. In the suit leading to this appeal, which sprung from the Ruling of the High Court of Lagos State, delivered by SAVAGE, J, in suit NO. IKD/52/2014. The Appellants as Claimants at the Court below by their Statement of Claim dated 20th day of May, 2014 found at pages 35 to 40 of the records of appeal, claimed the following reliefs against the Respondents:
(a) A Declaration that the Claimants’ predecessors in title are the original owners of the entire Gberigbe Orelade Village in Ikorodu Local Government Area, Lagos State.
(b) A Declaration that the Claimants are entitled under native law and custom to possession and ownership of the entire Gberigbe Orelade Village in the Ikorodu Local Government Area, Lagos.
?(c) N5,000,000.00 (Five Million Naira) being damages for trespass

committed by the Defendants to the Claimants said parcel of land.
(d) An Order of perpetual injunction restraining the Defendants by themselves, their agents, servants, privies or otherwise howsoever from further acts of trespass on the Claimants said parcel of land.

Upon the service of the Originating processes on them and filing of their Statement of Defense, the Defendants/Respondents in this appeal also filed a Notice of Preliminary Objection dated 10th day of July, 2016 seeking for an order striking out the Appellants suit for want of jurisdiction and being an abuse of Court process. The Notice of Preliminary Objection can be found at pages 312 to 316 of the records of appeal. The Appellants in response filed a Counter Affidavit found at pages 553 to 554 of the records of appeal. The gist of the Respondents objection is that the claims in the present suit had been determined in (1) Suit No. 139/11 Akishe & Odueke v. Odumeru as Baale of Agbowa & Anor; (Exhibit MKO1) (2) Suit No. LD/179/2000 Chief M. Mayan & Ors. v. Mr. J. A. Oluderu & Ors.; (Exhibit MKO2) and (3) Appeal No. CA/L/360/2011 ? Mr.

Joseph Adeyinka Oluderu & Ors. v. Chief Muraina Mayan & Ors., hence res judicata (Exhibit MKO3).

On the 13th day of October, 2014, the learned trial judge heard argument on the preliminary objection and in a Ruling delivered on the 11th day of February, 2015, found at pages 563 to 567 of the record of appeal, the learned trial judge directed counsel to file additional written addresses on the effect of a higher Court i.e. Court of Appeal declaring a lower Court i.e. High Court’s judgment a nullity and secondly the effect of setting aside a judgment for lack of jurisdiction vis–vis the Preliminary Objection.? See pages 567 of the record of appeal. However, before making this direction, the learned trial judge found and held at pages 565 to 566 of the record of appeal, as follows:
I am convinced more by the oral submission of O. Fabunmi when submitted which I later perused and found to be correct as follows:
Foremost, I opine the relevant judgment for consideration is that the Court of Appeal in Suit No. CA/L/360/2011 delivered on Friday 16th May, 2014 attached as Exhibit MKO2 to the Preliminary

Objection. The res to me is the same land.
In this ruling, I hold that:
a) The 1st defendant in this suit was 2nd appellant.
b) The 2nd defendant in this suit was No. 3 in appeal.
c) The 3rd defendant in this suit was No. 5 in appeal.
d) The 4th defendant in this suit is No. 7 in appeal?
The instant issue to me now is what is the effect of a judgment being declared a nullity and also the effect of a judgment being set aside for lack of jurisdiction vis–vis the Preliminary Objection

In line with the direction of the learned trial judge, counsel for the respective parties filed their respective additional written addresses, and in a Ruling delivered on the 2nd day of June, 2015, found at pages 580 to 600 of the records of appeal, the learned trial judge sustained the preliminary objection. Peeved by the said Ruling therefore, the Appellants filed a Notice of Appeal dated 10th September, 2015. The Notice of Appeal contained at pages 601 to 603 of the records of appeal is premised on two grounds.
?
Complying with the rules and practice in this Court, parties duly filed and exchanged their respective

briefs of arguments. In the Appellants? brief of Argument dated 29th November, 2016 and filed on the 30th day of November, 2016, Kehinde Osibona, Esq., counsel for the Appellant formulated a sole issue to wit;
Whether the decision of the Court of Appeal in Suit No. CA/L/360/2011: CHIEF J. OLUDERU & ORS. Vs. CHIEF M. MAYAN & ORS which decision was based on the Supreme Court decision of OKAFOR Vs. NWEKE (2007) 3 S.C. Pt. 11 at 55 constitutes an abuse of Court process against the subject matter of this appeal.
In the same manner, counsel for the Respondents, Olusegun Fabunmi, Esq., formulated a sole issue thus:
Whether the learned trial judge, Hon. Justice M.A. Savage was right in striking out the suit for abuse of Court process?

SUBMISSIONS OF COUNSEL
Arguing the sole issue, the learned Counsel for the Appellants, referred to the Ruling of the lower Court, and submitted that the learned trial judge totally misunderstood the approach taken because the decision of the Court of Appeal in Appeal No. CA/L/360/2011 ? Chief J. Oluderu & Ors. Vs. Chief M. Mayan & Ors. (Exhibit MKO2) did

not determine the issues in the appeal but merely dealt with the competence of signing of Court process in the name of a firm as settled by the Supreme Court in OKAFOR Vs. NWEKE (supra). Learned Counsel noted that the decision of the Court of Appeal in Exhibit MKO2 was merely a confirmation of the Supreme Court decision in SLB CONSORTIUM LTD Vs. NNPC (2011) 4 SC (Pt. 1) 86; ALAWIYE Vs. OGUNSANYA (2012) 12 SC (Pt. 3) 1; FBN PLC Vs. MAIWADA (2012) 5 SC (Pt. 3) 1 at 10; where the Court did not determine the merits of the appeal but merely set aside the originating processes on technical grounds.

Learned counsel argued that the learned trial judge wrongly sustained the Respondents objection and misconstrued the position of the law when he relied on the decision of the Supreme Court in FALEYE Vs. OTAPO (1995) 3 NWLR (Pt. 381) 1 that once a matter is finally settled in a previous suit by a Court of competent jurisdiction, same cannot be relitigated in subsequent proceedings. Counsel contended that the decision of the Court of Appeal in Exhibit MKO2 does not operate as estoppel because it did not decide the issue in controversy in respect of the ownership

of the land in dispute. Learned counsel outlined the essential elements that must be established before a plea of res judicata is sustained by the Court. Citing ODJEWEDJE Vs. ECHANOKPE (1987) 1 NWLR (Pt. 52) 633; OKPURUWU Vs. OKPOKAM (1988) 4 NWLR (Pt. 90) 554; UDO Vs. OBOT (1989) 1 SC 64; (1989) 1 NWLR (Pt. 95) 59, counsel finally submitted that res judicata estoppels is necessary to ensure the conclusiveness of judicial decisions and that individuals ought to be protected from vexations and multiplicity of suits.

In the Respondents brief of argument, counsel noted that the Respondents Notice of Preliminary Objection not only relied on the decision of the Court of Appeal in Exhibit MKO2, but also relied on the judgment of the Old Supreme Court in Suit No. 139/11 Akishe & Odueke Vs. Odumeru as Baale of Agbowa & Anors. Attached as Exhibit MKO3, a suit involving the Appellants predecessors wherein they lost ownership of the disputed land to the Respondents predecessors. Respondents counsel argued that the Appellants have not challenged the portion of the decision of the lower Court wherein it was held

that Exhibit MKO3 constitutes estoppel per rem judicatam. He relied on IYOHO Vs. EFFIONG (2007) 11 NWLR (pt. 1044) 31 at 55; EBEMIGHE Vs. CHI (2011) 2 NWLR (Pt. 1230) 65; OTUEDON Vs. OLUGHOR (1997) 9 NWLR (Pt. 521) 355.

Respondents? counsel contended that the submissions of the learned Counsel for the Appellants that the judgment of the Court of Appeal in Exhibit MKO2 does not debar re-litigation on the same res is misconceived and cannot stand in view of the decision of the learned trial judge on Exhibit MKO3. It is the submission of counsel that based on the judgment of this Court in Exhibit MKO2 and the Old Supreme Court in Exhibit MKO3, the Appellants? suit is caught up by the decision of the Supreme Court in FALEYE Vs. OTAPO (supra) in the sense that the Appellants intended to have another bite at the cherry, and there has to be an end to litigation. He argued that the decision of the learned trial judge is correct because the Respondents were able to convince the lower Court that the judgment in Exhibit MKO3 issues of fact relating to the ownership of the land in dispute had been settled as between the Appellants and the Respondents.

On what abuse of Court process entails, counsel cited the decisions in OKORODUDU Vs. OKOROMADU (1977) 3 SC 21; OKAFOR Vs. A-G., ANAMBRA STATE (1991) 6 NWLR (Pt. 200) 63; SARAKI Vs. KOTOYE (1992) 9 NWLR (Pt. 264) 156; ARUBO Vs. AIYELERU (1993) 3 NWLR (Pt. 280) 126 at 142; CBN Vs. AHMED (2001) 11 NWLR (Pt. 724) 369 at 504 before concluding that the learned trial judge was right in arriving at the conclusion that the Appellants? action amounts to an abuse of Court process.

In the Appellants Reply, counsel noted that the parties in Suit No. 139/11 – Exhibit MKO3, were entirely different from the Appellants herein and the land in dispute in that suit does not relate to Gberigbe Village but was said to be lying between Gberigbe Village and Gbokuta Mota Stream, hence two different subject matters. Counsel submitted that the Respondents failed to realize that the learned judge based the Ruling of the Court on the Court of Appeal decision in Exhibit MKO2.

RESOLUTION
For clarity and quick grasp of the important points to consider in this appeal, it is important to observe that the decision of the lower Court to the present suit subject of

this appeal is res judicata and/or an abuse of Court process was reached against the backdrop of the judgment of this Court in Appeal No. CA/L/360/2011 (?Exhibit MKO2?) delivered on the 16th day of May, 2014 and that of the Old Supreme Court in Suit No. 139/1911 (?Exhibit MKO3?) delivered on the 17th day of October, 1913.
In Exhibit MKO2, the Court of Appeal set aside the judgment of the trial Court given in favour of the present Appellants as Claimants. The present Respondents had, upon being aggrieved with the decision of the lower Court granting ownership of the disputed land to the Appellants, appealed to this Court and formulated three issues for the determination of the appeal. The first and paramount issue which was considered by this Court relates to the jurisdiction of the trial Court to entertain and give judgment in favor of the Appellants when their Writ of Summons and Statement of Claim was signed by a Law Firm ? Kehinde Osibona & Co – in breach of the provisions of Sections 2(1) and 24 of the Legal Practitioners Act, 1975. In line with the settled position of the law and decision of the Supreme Court in

OKAFOR Vs. NWEKE (Supra) at the relevant time, this Court, per IKYEGH, JCA, at pages 13 to 15 of the judgment held as follows,:
?The originating processes in the action at the Court below (the application for writ of summons and statement of claim) having been signed by a law firm, not by an identifiable legal practitioner, are incompetent and the proceedings of the Court below leading to judgment in the case built on the incompetent processes are equally incompetent and a nullity and must be set aside? I would allow the appeal on this issue and set aside the originating processes and the proceedings of the Court below for being incompetent and a nullity. The judgment of the Court below is set aside for lack of jurisdiction?.?
The Respondents relied on the above decision of this Court to argue that the Appellants are barred from re-litigating the issues considered by the trial Court which led to the decision of the Court of Appeal, which declared the judgment of the trial Court a nullity. This view was apparently accepted as correct by the learned trial judge who at pages 583 to 600 of the record of appeal, particularly at

page 598 of the records, held as follows:
?I commend counsel for their insightful submissions. It is now my judicial duty to ascribe the position of the law as I lucidly understand the same and apply accordingly. I remind myself that every legal claim and argument conjures a corresponding perspective.
I adopt the definition and effect of a nullity as espoused by the Supreme Court in the case of AJIBOYE Vs. ISHOLA Supra as having no legal validity and can confer no right nor impose any obligation. A distinguishing factor is that the apex Court in AJIBOYE?s suit recommended a re-trial, in CA/L/360/2011 no retrial was recommended.
Having not done so, to me it is instructive.
Also in SALEH Vs MONGUNO Supra cited by Claimants Counsel the same apex Court pronounced a nullity in law to be a void act which has no legal consequence.
The act is not only bad but incurably bad.
Estoppel Per Rem judicata is a rule of evidence whereby a party is precluded from disputing in any subsequent proceedings matters which had been adjudicated upon previously by a competent Court.
However in the same AJIBOYE Vs. ISHOLA, the apex Court

pronounced the principle of estoppel is inapplicable where the judgment is declared a nullity.
In Suit No. LD/179/2000 the claimants were granted declaratory judgment on the merits as in MKO1 at the High Court per Oke-Lawal, J. (Mrs.) and entitled to possession of the piece of land situate, lying and being at Igberigbe-Orelade and bounded by Igbooku.
The defendants however appealed and in Suit No. CA.L.360/2011, the Court of Appeal as in MKO2 delivered on 16th May, 2014 not only set aside LD/179/2000 but declared it a nullity.
The action is in respect of the same Parties, their privies and the same subject matter?.?
It is without any scintilla of doubt, that the parties and subject matter in the present suit are the same as those in Appeal No. CA/L/360/2011. The issue in this appeal revolves around the decision of this Court in Appeal No. CA/L/360/2011, where having found that the originating processes in the suit leading to the appeal before it was not signed by a legal practitioner, had no option than to declare the proceedings and judgment thereon as incompetent and a nullity. This, by law is the right decision and cannot be

faulted. The question then is whether the said decision can operate as estoppel against a subsequent action commenced by the Appellants in relation to the same subject matter. The learned trial judge believed it does. The view of the learned trial judge that the present suit is res judicata is hinged on the fact that this Court did not give an order of retrial as done by the Supreme Court in AJIBOYE Vs. ISHOLA (2006) LPELR ? 301 (SC). In my humble view, the learned trial judge misconceived the reasoning and purport of the decision of the Supreme Court in AJIBOYE, where the Court, per ONNOGHEN, JSC (later CJN) (as he then was) held as follows:
what is very important and needs to be emphasized here is the fact that this Court declared the judgment of the Court of Appeal resulting in that appeal to the Supreme Court a nullity. It is settled law that a judgment that is a nullity has no legal validity and can confer no right nor impose any obligation on anybody. That being the case, it follows clearly that the order of non-suit contained in the judgment of the Court of Appeal declared a nullity is of no moment that is why the Court

considered it a false of time and energy to go into a consideration of the propriety of the said order. It is however very clear that the issue as decided in that appeal is not the same as the issues that call for determination in the present appeal and therefore it is my considered view that the principles of issue estoppel are inapplicable to this case and do not avail the appellant. The interesting question however, is whether the cross-appeal which was allowed by the Court conferred any right on the present appellant or resolved the issues in contention in the present appeal so as to constitute that decision res judicata. I had earlier in this judgment observed that appellant had no cross-appeal before the Court of Appeal. It follows therefore that his cross-appeal to the Supreme Court arose from the very judgment the Supreme Court declared null and void. The question is, even though the said cross-appeal was allowed, was it on the merit? I do not think so. It was allowed solely on the ground that the appeal giving rise to the judgment on further appeal to the Supreme Court was incompetent which in effect also means that there was no judgment on which the

cross-appeal though allowed, could be based. It therefore does not matter whether the cross-appeal is independent of the main appeal and has a separate existence – the reality being that it was based on a judgment that has been declared by this Court not to have existed ab initio. It was an empty victory in relation to the principles of res judicata. I therefore resolve the issue against the appellant?.?
The settled position of the law, as within the limits of my humble understanding, as is often cited in MACFOY Vs. UAC (1962) 1 AC 100, is that one cannot put something on nothing and expect it to stand; even without any external factor, it would definitely collapse like pack of cards. See: OTU Vs. ACB INTERNATIONAL BANK PLC & ANOR (2008) LPELR ? 2827 (SC); NIPSS, KURU Vs. KRAUS THOMPSON ORGANISATION & ORS (2015) LPELR ? 24922 (CA); UBA Vs. DANA PHARMACEUTICALS LIMITED (2018) LPELR – 43799 (CA). A null proceeding or judgment is deemed not have even existed at all, it cannot therefore be the basis for the assertion of rights or to command obligation; it has no legal relevance, such judgment cannot be employed as pedestal

upon which to concrete a valid and sustainable decision. It therefore stands positive reason that this Court cannot rightly make an order of retrial of a suit which it had declared a nullity on the basis that the Originating processes filed by the Claimant were incompetent, hence the Court lacked jurisdiction to entertain the claim. If I may ask, upon which originating process will the order of retrial be made. There was no foundation upon which an order of retrial could be erected.
The learned trial judge with all due respect ought to have consciously directed his mind to the portion of the decision of Supreme Court in AJIBOYE, which he aptly quoted that the principle of estoppel is inapplicable where the judgment is declared a nullity. Null proceedings have no legal consequence, so that the Court cannot make an order of retrial in proceedings which have been declared a nullity, ab initio. Where the proceedings and judgment of a Court turn out to be or is found to be a nullity, the attitude of the Court as done in CA/L/360/2011 is to put an end to the matter, without the need to consider the merit of such a case and the soundness of such a null

judgment. In Appeal No. CA/L/360/2011, this Court declared the judgment granting ownership of the disputed land to the Appellants in Suit No. LD/179/2000, a nullity having regard to the incompetent originating processes filed by the Appellants; the Court of Appeal did not consider and/or determine whether the trial judge was right in his decision on the substantive issue of ownership of the disputed land, this was because in the eyes of the law the decision of the lower Court lacked foundation.
It follows therefore that the said void decision cannot be operated to pebbledash the issue of ownership of the disputed land, sought to be re-litigated by the Appellant at the lower Court. As a matter of fact, if the learned trial judge had meticulously digested the judgment of the Supreme Court in AJIBOYE, he would have been left in no doubt as to the right conclusion as evident in the words of ONNOGHEN, JSC (later CJN,) (as he then was) that ?the reality being that it was based on a judgment that has been declared by this Court not to have existed ab initio. It was an empty victory in relation to the principles of res judicata.? The only conclusion I

am bound to reach in the circumstance, is that the decision of this Court in CA/L/320/2011 does not bar the Appellants from bringing the present action.

With respect to the decision of the Old Supreme Court in Suit No. 139/1911, the learned trial judge held at pages 599 to 600 of the records of appeal, as follows:
I hold that Exhibit MKO3 constitutes estoppel per rem judicata as certain issues of facts have been settled as between the Claimants and Defendants namely:
1. That the people of Agbowa have been in possession of the land lying between Gberigbe and Gbokuta stream for years.
2. That it is not correct that the people of Agbowa crossed the Gbokuta stream to be farming on the land area between Gberigbe and Gbokuta stream.
3. That the Baales of Agbowa have been appointing Baales for the neighbouring villages for several years including Gberigbe Orelade.
From the above findings in the judgment of the Supreme Court in Exhibit MKO3, which was never appealed against by the predecessors of the Claimants, the Defendants are the owners of Gberigbe Orelade land constitute estoppel per rem judicata. See Section 146 of the Evidence Act, refers.

Based on the FALEYE Vs. OTAPO case, Supra, I am of the firm view that the Claimants ought to appeal the Court of Appeal decision particularly as the lower Court decision was declared a nullity. I rely on UAC Vs MCFOY Supra as you cannot put something on nothing.
I hold the parties in this instant suit and CA/L/360/2011 are the same or their privies, the Res constant and lower Court judgment declaration a nullity

It is the submission of the learned Counsel for the Respondents at paragraph 3.6 to 3.8 of the Respondents? Brief of Argument that the Appellants did not challenge the findings of the learned trial judge in relation to the judgment of the Old Supreme Court in Suit No. 139/1911. I am unable to accept as well founded the submissions of the learned Counsel for the Respondents in this regard. In the first place, the power of this Court is not limited by the Notice of Appeal, as evident from Order 4 Rule 4 of the Court of Appeal Rules, 2016, which provides:
The powers of the Court under the foregoing provisions of this Rule may be exercised notwithstanding that no notice of appeal or

Respondent?s Notice has been given in respect of any particular part of the decision of the Court below, or by any particular party to the proceedings in that Court, or that any ground for allowing the appeal or for affirming or varying the decision of that Court is not specified in such a notice; and the Court may make any order, on such terms as the Court thinks just, to ensure the determination of the merits of the real question in controversy between the parties.
In the instant case, no party, particularly the Respondents can claim to be miscomprehended as to the grievance of the Appellants with respect to the decision of the lower Court and it is that the present suit is not res judicata and/or an abuse of Court process. Reading through the entire Ruling of the lower Court, one cannot resist the temptation to conclude that the decision of the learned trial judge was predicated on his finding that the decision of this Court in CA/L/360/2011 operate as estoppel against the Appellants in bringing the present action. There was no finding on the part of the learned trial judge as to whether the disputed land, subject matter of the suit is one

and the same as the one in Suit No. 139/1911. Be that as it may, I am inclined, owing to the provisions of Order 4 Rule 4 supra, to consider the question whether Suit No 139/1911 bars the Appellants from bringing the present suit.

The law with respect to the principles of res judicata is well settled. The principle presupposes that where a competent Court has determined an issue and entered judgment, neither of the parties will have the liberty to re-litigate that issue in subsequent proceedings, since the matter is res judicata. The principle is predicated on the fact that there must be an end to litigation. See A-G., NASARAWA STATE Vs. A-G., PLATAEU STATE (2012) LPELR ? 9730 (SC); DAKOLO & ORS Vs. REWANE-DAKOLO & ORS (2011) LPELR – 915 (SC). A successful plea of res judicata constitutes a bar to the jurisdiction of the Court to entertain and determine a claim before it. To this extent therefore, before a plea of res judicata can be sustained by the Court, it must be established that the parties (or privies) are the same; the res, that is the subject matter of litigation, is the same; and the issues deliberated in both the previous action

and the subsequent suit are the same. In S.O. UTUKS & ORS Vs. NIGERIAN PORTS AUTHORITY (2005) LPELR 3440 (SC), the Supreme Court of Nigeria, per TABAI, JSC held as follows:
There are four conditions precedent to the successful plea of the doctrine of res judicata: (1) That the parties or their privies in the previous case and the present one are the same. (2) That the issues and subject matter in the two cases are the same. (3) That the adjudication in the previous case was given by a Court of competent jurisdiction; and (4) That the previous suit finally decided the issues between the parties or their privies. All these conditions being present in the instant case, the doctrine of res judicata applies to defeat the suit.?
See also IKOTUN Vs. OYEKANMI & ANOR (2008) LPELR ? 1485 (SC). In the present case, the Appellants? counsel strenuously argued that the subject matter in Suit No. 139/1911 is different from the one in this case. As a matter of fact, it is apparent on the face of the judgment of the Old Supreme Court in Suit No. 139/1911 that the res therein is the ?land lying between Gberigbe and the

Gbokuta Mota Stream whereas the Appellants in the present suit are claiming ownership of the ?vast area of land known as Gberigbe Orelade Village. While it is commonplace to find parties styling and restyling the names and identity of land in proceedings in Court, I believe a determination of the question as to whether a disputed land is one and the same as the land whose ownership was determined in an earlier suit, must be carried out with circumspection, particularly where the description of the land in both the previous action and subsequent suit is such as to make the identity of the land to be intricate and in question.
It is my humble view that, as it relates to the instant case, particularly with respect to the identity of the land in dispute, a conclusive opinion cannot be rightly formed by the Court, until evidence is taken to ascertain the identity, extent and precise description of the land. I am totally unable to flow with the submissions of learned Counsel for the Respondents on this point unless further evidence is led in proof of the precise identity of the land described as lying between Gberigbe and the

Gbokuta Mota Stream is one and the same as the ?vast area of land known as Gberigbe Orelade Village.? By logical reasoning, and deduction a land lying between a village and a stream cannot be said to be one and the same as one in the Village. Without over flogging this point, I believe the justice of this case will be better served, if more evidence is called to establish the precise identity of the land, and resolve doubt as to whether the subject matter is the same as the one in the previous action in Suit No 139/1911. It will be contrary to natural justice, equity and good conscience to shut the doors of the Court house against the Appellants without meticulous and painstaking resolution of this issue, shutting the Appellants out will amount to sacrificing justice, under the prattle of barring re-litigation of disputes. I am not for this, I totally disagree.
?Finally, therefore, I have no jot of hesitation in reaching the conclusion, that until evidence is led to the contrary, the subject matter in this case is not one and the same as the one in Suit No. 139/1911. Therefore, this present suit is not caught up by the principles of res

judicata and does not also amount to an abuse of Court process.

In the end, I find merit in the Appellants? appeal and it is hereby allowed by me. The Ruling of the High Court of Lagos State in Suit No. IKD/52/2014, delivered by SAVAGE, J. striking out the Appellants? suit is hereby set aside. The suit is hereby restored on the cause list and remitted to the Chief Judge of the High Court of Lagos State, to be re-assigned to another Judge of the Court, to be heard and determined expeditiously.
Parties shall bear their respective costs.

MOHAMMED LAWAL GARBA, J.C.A.: I agree with the lead Judgment of my learned brother Tijjani Abubakar, JCA, a draft of which I read before now, that the appeal is meritorious and deserves to be allowed, for the reasons adumbrated therein.
The appeal is allowed by me too in terms of the lead judgment.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have read the draft of the lead judgment delivered by my learned brother, TIJJANI ABUBAKAR, JCA wherein he allowed an appeal and made consequential order remitting the case back to the lower Court to be

re-assigned by the Chief Judge of Lagos State to another judge of the Lagos State High Court to be given expeditious hearing.

The lead judgment of my learned brother has adequately dealt with all the issues in contention and I really do not wish to add anything to it as the analysis and resolution of the Issues in the lead judgment accord with my views and understanding of the applicable case law on the subject.
The appeal is allowed by me too, and I abide with the order made that both parties shall bear their respective costs of the appeal.

Appearances:

Kehinde Osibona with Folakemi OluwanyaFor Appellant(s)

O. Fabunmi with I. OnyejepuFor Respondent(s)

Appearances

Kehinde Osibona with Folakemi OluwanyaFor Appellant

AND

O. Fabunmi with I. OnyejepuFor Respondent