DR. RASAKI OSHODI & ORS VS YISA OSENI EYIFUNMI & ANOR

DR. RASAKI OSHODI & ORS VS YISA OSENI EYIFUNMI & ANOR

(2000) LCN/2862(SC)

In the Supreme Court of Nigeria

Friday, July 14, 2000


Case Number: SC. 53/1995

 

JUSTICES:

A.B. WALI JUSTICE, SUPREME COURT

E.O. OGWUEGBU JUSTICE, SUPREME COURT

A.I. IGUH JUSTICE, SUPREME COURT

O. ACHIKE JUSTICE, SUPREME COURT

A.O. EJIWUNMI JUSTICE, SUPREME COURT

 

APPELLANTS

DR. RASAKI OSHODI(Substituted for Alhaji K.D. Oshodi and family) CHIEF G.F.A. INASA THOMAS (For himself and on behalf of Oshodi Arota Ologun family of Lagos)CHIEF MUSA ESUGBAYI OSHODI (Substituted for R/D. Oshodi for themselves and on behalf of Oshodi family)

 

RESPONDENTS

YISA OSENI EYIFUNMILAMINA ENIYANTAN (For themselves and on behalf of the Odujaguda family, otherwise known as Akinowo family)

 

JUDGMENT

 

  1. I IGUH, JSC.

 

(Delivering the Judgment by the Court):

 

The proceeding leading to this appeal has had a long and chequered history. It was initiated in the lkeja Judicial Division of the then High Court of Justice of the Former Western Nigeria some thirty-five years ago on precisely the 10th day of March, 1965. For reasons not apparent from the record of proceedings, the case sojourned through not less than twelve courts presided over by various judges beginning with Somolu, J., as he then was, until it finally found itself before Oguntade, J., as he then was on the 16th day of November, 1982.

 

 

Apparently concerned with the protracted nature and very old age of the dispute, the learned trial judge after criticizing justifiably the seeming prevailing poor litigation machinery of the time immediately commenced the actual hearing of the case the following day, the 17th November, 1982. I think this type of attitude to work is clearly commendable and distinctly worthy of emulation.

 

 

Adverting to the action itself, the respondent, as plaintiffs, duly substituted by the order of the High Court in place of the three original plaintiffs, now deceased, had for themselves and on behalf of the Odujaguda family, otherwise also known as the Akinowo family, instituted this proceeding against the appellants, therein defendants, claiming, as subsequently amended, as follows:-

 

‘Whereupon the plaintiffs claim as against the 1st defendant:

 

  1. Forfeiture of his customary tenancy on ground of his conduct by denying plaintiffs’ title to the said land and

 

ii Possession of the said land.

 

 

As against the 2nd defendant, the plaintiffs claim:

 

  1. NI00 damages for trespass and

 

ii Injunction restraining the 2nd defendant from future trespassing on the said land.’

 

 

The action was initially filed against Alhaji K.D. Oshodi, G.FA Inasa Thomas and YA. Ajenifuja as the 1st, 2nd and 3rd defendants respectively. However, by an order of court made on the 23rd March, 1967. Alhaji R.D. Oshodi and Chief Fasasi Odebisi were, on their own application, joined in the action as the 4th and 5th defendants. It would appear from the pleadings that the defendants in the action had defended the suit for themselves and on behalf of the Oshodi chieftaincy family and the Oshodi Arota Ologun branch of the said Oshodi chieftaincy family.

 

At a stage in the course of proceedings, the 3rd defendant YA Ajenifuja was reported dead. The action accordingly proceeded against the four remaining defendants, to wit, Alhaji K.D. Oshodi, G.FA. Inasa Thomas, R.D. Oshodi and Chief Fasasi Odebisi. The surviving defendants and the persons substituted in place of the deceased defendants are not the appellants in this appeal.

 

 

There are two sets of appellants in the appeal. The 1st and 3rd appellants who are represented by Mahmmoud ‘Gafar Esq., and the 2nd appellant whose leading counsel is Lateef Fagbemi Esq., SAN. The 1st and 3rd appellants would appear to have defended the suit for themselves and on behalf of the Oshodi family whilst the 2nd appellant defended for himself and on behalf of the Oshodi/Orota Ologun family of Lagos.

 

I think it ought to be pointed out that the plaintiffs Odujaguda family, otherwise also known as the Akinowo family is one of the two branches of the Olushi Onigbesa family. The other section is the Agedegudu branch. Both branches comprise of the Olushi Onigbesa family.

 

 

Pleadings were ordered in the suit and were duly settled, filed and exchanged, with the same amended by various orders of court.

 

The plaintiff’s case as pleaded and testified to is that their ancestor, Olushi Onigbesa, acquired a  vast piece or parcel of land of which the land in dispute formed a part by first settlement from time immemorial in accordance with Yoruba customary law. They claimed that the 1st defendant was tenant of the Olushi Onigbesa family in respect of an area of the land in dispute which falls within the portion allotted to the plaintiff’s Odujaguda branch of the Olushi Onigbesa family following the partition of their Olushi Onigbesa communal land by the two branches of that family. The 1st defendant was said to be the tenant of one Sunmonu Agedegudu of the Agedegudu branch of the said Olushi Onigbesa family. The plaintiffs claimed that as a result of an intra-family dispute between them and the Agedegudu branch of their common Olushi Onigbesa family in 1949, suit No. AV/ 110/57 was filed by them against the said Agedegudu branch of their family. This case is Jimo Odunlami and others of the plaintiffs’ family v. Sunmonu Agedegugu and others of the Agedegudu family, Exhibit A. according to the plaintiffs, both branches of the Olushi Onigbesa family subsequently partitioned the land and a consent judgment dated the 12th April, 1961 was entered in the suit in terms of this voluntary partition.

 

 

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The plaintiffs asserted that the 1st defendant was challenging their title to the portion of the land in dispute granted to him hence the forfeiture of his tenancy. They further testified that the 2nd defendant encroached on the land in dispute and erected a building thereon without their leave or licence. They therefore claimed damages for trespass and perpetual injunction against him. No relief was claimed against the 3rd defendant who was joined in the suit on his own application to defend the action on behalf of the Oshodi family The plaintiffs claimed that all the defendants were denying their title to the land in dispute and asserting ownership thereof. They denied knowledge of anything about suit No. AB/ 16/57 in which the said Sunmonu Agedegudu, for himself and on behalf of the Olushi Onigbesa family, claimed a declaration of title, forfeiture and possession of the land in dispute against Sanni Ajenifuja and others, for and on behalf of the defendants Oshodi family. They asserted that they never went to court during the hearing of the suit and that they knew nothing about any appeal, nor the case to this court.

 

 

The 1st and 3rd defendants in their amended Statement of Defence denied that they were never customary tenants of the plaintiffs. They maintained that the land in dispute formed a portion of the parcel of land granted to Chief Oshodi Tapa absolutely about 200 years ago by the Awori people who were the first settlers on the land. This grant was made as compensation for the military assistance which Chief Oshodi Tapa and his Arotas gave to them to ward off and defeat slave raiders who menaced their domain at the time. Chief Oshodi settled his Arotas on the land and both himself and his Arotas had since been in exclusive possession of the land in dispute as owners thereof until this day. They had paid no rent or tribute to any one. The 1st and 3rd defendants said they were members of the Oshodi and Arota communities residing at Oshodi and they relied on the title of the said communities to the land in dispute in this action. They denied any knowledge of suit No.AB/l10/58, Exhibit A or any intra-family dispute between the two branches of the Olushi Onigbesa family as alleged by the plaintiffs which was said to have culminated in the said consent judgment, Exhibit A. In particular the 1st and 3rd defendants/appellants specifically pleaded the proceedings and judgment of the Ikeja High Court in suit No.AB/ 16/57 and the decision of this court on appeal No. FSC.413/61, Exhibits 0, 01-02. In that suit, the plaintiffs predecessors-in-title unsuccessfully tried to assert their title to the land in dispute against the representatives-in-interest of the 1st and 3rd defendants. They explained that the present plaintiffs were aware of and took active interest in the prosecution of the case on the side of plaintiff in that case but lost their claims both in the High Court and in the Federal Supreme Court. It is their contention that the proceedings, Exhibits 0,01-02, operated as estoppel against the plaintiffs who could no more assert ownership of the land in dispute as against the defendants. They stressed, at all events, that on the face of the proceedings, Exhibit A, the plaintiffs did not partition any land until after the judgment in Exhibit 0 had been delivered. On the evidence of the 1st and 3rd defendants, also, the land allegedly partitioned by them was the same land over which judgment in suit No. AB/ 16/57 was delivered by a Court of competent jurisdiction against the plaintiffs. They urged the court to uphold their plea of res judicata.

 

 

The 2nd defendant/appellant jointly filed an amended statement of Defence with the 5th defendant, Chief Fasasi Odebisi, now deceased. In it, they averred that the piece or parcel of land in dispute is only a portion of a large expanse of land which jointly belonged to the defendants’ ancestors from time immemorial. The land was granted absolutely to the 2nd and 5th defendant’s ancestors by Oba Onigbesa of Igbesa in recognition of the military assistance which the defendants’ said ancestors to wit the Oshodi family and the Arotas rendered to the then Oba Onigbesa. They claimed that their ancestors had lived on the land from time immemorial and exercised diverse acts of ownership and possession thereon without any disturbance whatever. They, too pleaded the proceedings and judgment in suit. No. AB/I6/57 in which Sunmonu Agedegudu for himself and on behalf of the Olushi Onigbesa family sued the defendant’s Oshodi family and their representatives-in– interest for title, forfeiture and possession of the land in dispute but lost as well as the appeal decision therefrom and averred that the plaintiffs were estopped from bringing this action against them or asserting ownership of the land in dispute.

 

 

At the subsequent trial, the parties testified on their own behalf in line with the averments in their respective pleadings and called witnesses. The defence put up by the two sets of appellants, as defendants before the trial court, was substantially the same. Both pleaded estoppel per rem judicatam which was founded on the judgment of the Ikeja High Court in suit No. AB/ 16/ 57 and the appeal decision therefrom by this court, Exhibits 0, 01 – 02. Having regard to the state of the pleadings, the learned trial judge, quite rightly in my view, decided to resolve the preliminary issue of res judicata pleaded by the defendants first. This would determine whether the plaintiffs were bound by the judgment in the said suit No, AB/16/57 and were in consequence thereof estopped from asserting their ownership of the land in dispute or relitigating issues which had been decided between the parties by a court of competent jurisdiction. The plea, if it succeeded, would naturally spell doom for the plaintiffs’ claim.

 

 

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The trial court was prepared, in the event of a failure of the plea, to consider the mass of other evidence led by the parties in respect of their respective claims to ownership of the land in dispute.

 

The learned trial judge after a review of the evidence on the 7th day of July, 1988 found for the plaintiffs and held that although the parties and issues in the previous suit No. AB/l 6/57 and the present case where the same, the defendants had failed to establish that the land in dispute in the present case fell within the land adjudged to belong to them in the said suit No. AB. 16/57, the defence of estoppel per rem judicatam was accordingly rejected.

 

 

The learned trial judge next proceeded to evaluate the rest of the evidence adduced before the court and found that-

 

(1) the land in dispute fell within the area of land originally settled upon by Olushi Onigbesa many years ago.

 

(2) The 1st defendant/appellant and his predecessors were in possession of the land in dispute as customary tenants of the Olushi Onigbesa family;

 

(3) The Olushi Onigbesa family land was partitioned into two between the Agedegudu and Odujaguda Akinowo family and that the land in dispute fell within the area of land granted to the plaintiffs’ Odujaguda/Akinowo branch following the consent judgment in suit AB/I10/57 and the said 1st defendant, having disputed the plaintiffs’ title to the land, was liable to forfeiture of his tenancy.

 

 

As regards the 2nd defendant/appellant, the learned trial judge found him liable in trespass and awarded NI00.00 damages to the plaintiffs against the 2nd defendant. An order of injunction was issued against the 2nd defendant, his servants and agents, restraining them from further acts of trespass on the land in dispute. The order of injunction, however, was not to come into force until the 2nd October, 1986 to enable the 2nd defendant arrange the evacuation of his personal property from the residential house he erected on the land in dispute. The trial court made no finding nor order against the 3rd defendant/appellant.

 

 

Being dissatisfied with this judgment of the trial court, all three defendants lodged appeals to the Court of Appeal Lagos Division, which court in a unanimous decision on the 5th day of December, 1994 affirmed the decision of the trial court and dismissed their appeals.

 

Aggrieved by this decision of the Court of Appeal, the defendants have further appealed to this court.

 

Altogether eleven grounds of appeal were filed by the 1st and 3rd defendants against this decision of the Court of Appeal. The 2nd defendant, for his own part, filed twelve grounds of appeal against the same decision of the Court of Appeal. It is unnecessary to reproduce all these grounds of appeal in this judgment. It suffices to state that the parties pursuant to the Rules of this Court filed and exchanged their written briefs of argument.

 

 

The three issues identified on behalf of the 1st and 3rd defendants/appellants for the determination of this appeal are as follows:-

 

‘1. Whether the Court of Appeal was right in holding that the issues in suit No. AB/16/57 are not the same with those in the present suit.

 

2 Whether the decisions in AB/I 6/57 and FSC/413/61 do not create issue estoppel to bar the respondents from re-litigating the issues decided therein.

 

  1. Whether Court of Appeal was right in holding that estoppel per rem judicatam was not established by reason of the failure of the appellants to prove that the subject matter in suit No. AB/16/57 is the same with that of the present suit.’

 

 

For the 2nd defendant/appellant, four issues were distilled from his ground of appeal for the determination of this appeal. These are as follows;-

 

‘1. Whether on the pleadings, it was disputed that the land, subject matter of this suit. Had been a subject of previous decision in suit No. AB/I 6/57 between the Appellant and the Plaintiffs/Respondents – Grounds 1,2,3, and 4.

 

  1. Whether the 2nd Appellant in the court below who is Appellant herein, made a claim in the High Court- Ground 9.

 

  1. Whether in any event the plea of estoppel is well made ?, Grounds 5, 6, 7, 8, 9,10, ll and

 

  1. Whether the principles in kojo ii vs. bonsie (1957) 1 WL.R. page 1223 apply to this case to make the case of the Plaintiffs/Respondents preferable to that of the Appellant – Ground 12′

 

 

The plaintiffs, in their respondents’ briefs of argument, adopted the two sets of issues formulated on behalf of the defendants/appellants for the determination of this appeal.

 

Essentially three main issues covered by the defendants’ grounds of appeal and identified in their respective briefs of argument relate to-

 

 

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1 Whether the Court of Appeal was right in holding that estoppel per rem judlcalam did not avail the defendants by reason of the failure of the defendants to establish that the res, the subject matter in suit No, AB/16/57 was the same as that in the present suit.

 

2 Whether the decisions in AB/l6/57 and FSC/413/61 do not create issues estoppel to bar the plaintiffs from re-litigating the issues therein decided.

 

3 If the answer to issues 1 and 2 above are in the affirmative, whether the plaintiffs established their ownership and the other reliefs claimed against the defendants before the trial court.

 

 

I propose in this judgment to consider issues 1 and 2 together. If this becomes necessary, issues 3 will next be considered.

 

At the oral hearing of the appeal, learned counsel for the parties adopted their respective briefs of argument and proffered additional submissions in amplification thereof’.

 

 

The main contention of learned Counsel for the 1st and 3rd defendants, Mr Mahmmad Gafar with regard to issues I and 2 is that there was sufficient evidence on record to establish that the land in dispute in the present case is the same as the land, the subject matter of the previous action in suit No. AB/16/57. He criticized the finding of both courts below to the effect that once the survey plan of the land previously in dispute is tendered in evidence the party setting up the plea of res judicata based on such previous dispute is bound to fail. Learned counsel placed reliance on the decision of this court in Gbajumo v. Bunyan and Others v. Akingboye and others 1999) 7 N W L R (Pt 609) 31 (and submitted that once a piece or parcel of land in dispute is sufficiently well known to the parties, the production of a survey plan in proof of its identity can hardly by raised. He made reference to various evidence on record by both the plaintiffs and defendants in the present case and submitted that the parties are ad idem on the issues that the land in dispute in suit No. AB/ 16/57 is the same with the one claimed in the present action. He therefore argued that notwithstanding the fact that the survey plan in suit No. AB/16/ 57 was not tendered in evidence in the present case, it was open to the defendants to establish by other evidence that it was the same piece of land that was the subject matter of the dispute in both the previous suit No. AB/16/ 57 and the present action. Learned counsel made reference to the pleadings of the parties and contended that they contain admissions that the land in dispute in both actions is the same. He called in aid the decisions of this court in Adedayo v. Babalola (1995) 7 NWLR (Pt. 408) 383 and Aro v. Fabouade (1983) All N.L.R. (Reprint) 67 and submitted in the alternative that issue estoppel was established in favour of the defendants to bar the plaintiffs from re-litigating the issue of the alleged customary tenancy granted Oshodi Tapa as aforementioned. He also submitted that the Court below was in error to have held that the issues in the two cases were different. He urged the court to allow the appeal.

 

 

Learned leading counsel for the 2nd defendant, Mr. Lateef Fagbemi S.A.N. in his own submissions stressed that there is no dispute on the face of the pleadings of the parties on the question of the identity of the land in dispute in suit No. AB/16/57 and his being one and the same with the land in dispute in the present action. He argued that his being so, there would be no need to tender any plans of the land in dispute in suit No. AB/16/57. Learned counsel referred to the amended Statement of Defence of the 2nd and 5th defendants. In it, the said defendants specifically and expressly averred that the land in dispute in both suit No.AB/16/57 and the present case was the same. He drew attention to the plaintiffs’ amended reply thereto and stressed that the material averment on the identify of the land in dispute in both cases was in no way traversed. He submitted that in-as-much as no issue was joined on the pleadings on the question of the identity of the land in dispute in both cases being the same, there was no need on the part of the defendants to tender any survey plans. He pointed out that the only issue the plaintiffs raised with regard to suit No. AB/16/57 was that the parties were not the same and no more. He submitted in the alternative, that if his contention with regard to the state of the pleadings is erroneous, the court must consider the evidence to ascertain whether the plea of res judicata can be sustained. In this regard he relied on the decision of this court in Yaya Adigun v. Governor of 0sun State and others (1995) 3 N.W.L.R. (Pt. 385) 513 at 534 and submitted that the court below was in error by affirming the stance of the trial court and refusing to examine the record with a view to determining whether, on the pleadings and evidence, it was not established that the land in dispute in both cases was the same. He urged the court to uphold the plea of res judicata raised by the defendants as the issue, the res and the parties in both the previous and the present actions are the same.

 

 

Learned counsel for the respondents, TO.E. Kuye (Miss) in her reply made reference to the amended statement of claim filed in the cause and submitted that the plaintiffs tried to show therein that the land in dispute in suit No. AB/15/57 and in the present action are not the same. In particular she referred to paragraphs 2(d) and 4(a) – 4(d) of the plaintiffs statement of claim and to the plaintiffs’ Reply to the defendants’ statement of defence and submitted that the land in dispute in suit No.AB/16/57 and in the present case are not the same. Learned counsel drew the attention of the court to page 261 of the printed record of proceedings, lines 5-10 where the 1st defendant testified as follows-

 

 

‘I approached the Agedegudu family before I started the erection of my own house. I got permission to build my house from both my family (i.e. Oshodi family) and the Agedegudu family. I did not pay any money to Agedegudu family.’ (Italics supplied).

 

She submitted that this is admission by the 1st defendant that he got permission from the Agedegudu family before he erected his house.

 

 

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She recalled that the defendants tendered the proceedings and judgments in suit No.AB/16/57 and the appeal therefrom but failed to tender the plan of the land then in dispute. She referred to the decision of this court in Elias v. Sulaiman and other (1973) 12 S.C. 114 and contended that the onus is on he who asserts the existence of a particular fact to establish the same by evidence. In her view, failure to produce the said plan invoked a presumption that the land in dispute in both actions could not be the same. Learned counsel considered that the observation of the Court of Appeal on the question of whether the issues in both suit No.AB/16/57 and in the present case were the same were taken out of context. She stressed that the court below agreed entirely with all the findings of the learned trial judge which it described as ‘Faultless’. She submitted that there was no question of court below interfering with any of the findings of the trial court and that it strictly adhered to the principle enunciated in Woluchem v. Gudi (1981) 5 S.C. 291 at 226. it was her further contention that the doctrine of issue estoppel was of no avail to the defendants. She urged the court to dismiss this appeal. Issues I and 2 are inter-related and it will be convenient to treat them together. These deal essentially with whether the Court of Appeal was right in holding that the doctrine of estoppel per rem judicatam pleaded by the defendants in the case did not avail them by reason of their alleged failure to establish that the land in dispute in suit No. AB/16/57 is the same as that in dispute in the present case. There is also the question of whether the decision in suit No. AB/16/57 and the appeal judgment therefrom in Appeal No. FSC 413/61 do not create issue estoppel to bar the plaintiffs from relitigating the issues therein decided.

 

 

In this regard, it cannot be disputed that where a cause of action in a present suit has been determined in a previous action between the parties, that cause of action becomes merged in that judgment: transit in rem judicatam. It is against the rule of public policy that no one shall be vexed twice on the same ground or for one and the same cause of action and on the same issues. See Adomba v. Odiese (1990) 1 N.WL.R. (Pt. 125) 165 at 178. It is also an application of the rule of public policy that it is for the common good that there should be an end to litigation, that is to say, interest rei publicae ut sit finis litium; see John Omokhafe v. Asekhome (1993) 8 N.WL,R, 58. The plea of res judicala operates not only against the parties but also against the jurisdiction of the court itself and robs the court of its jurisdiction to entertain the same cause of action on the same issues previously determined by a court of competent jurisdiction between the same parties. The parties affected are estopped per rem judicatam from bringing a fresh action before any court on the same case and on the same issues already pronounced upon by the court in a previous action. See Oyelakin Balogun v. Adedosu Adejoki (1995) 2 N.W.L.R. (Pt. 376) 13 1.

 

 

This type of estoppel are of two kinds. There is the ’cause of action estoppel’ which effectively precludes a party to an action or his agent or privies from disputing, as against the other party in any subsequent proceedings matter which had been adjudicated upon previously by a court of competent jurisdiction between him and his adversary and involving the same issues.

 

 

There is the second class of estoppel which is issue estoppel: within a cause of action, several issues may come into question which are necessary for the determination of the whole case. The rule is that once one or more of such issues have been distinctly raised in a cause of action and appropriately resolved or determined between the same parties in a court of competent jurisdiction, as a general rule, neither party or his servant, agent or privy is allowed to reopen or relitigate that or those decided issues all over again in another action between the same parties or their agents or privies on the same issues. See Lawal v. Yakubu Dawodu (1972) 1 All N.L.R. (Pt. 2) 270 at 272; Olu Ezewani v. Nkali Onwoli and others (1986) 4 N.W.L.R. (Pt. 33) 27 at 42-43; Samuel Fadiora & Anor v. Festus Gbadebo & Anor (1978) 3 S.C. 219 at 228-229 etc. Both classes of estoppel have been raised for consideration in this appeal.

 

 

It ought to be stressed, however, that for the plea of estoppel per rem judicatam to succeed, the party relying on it must establish that –

 

‘i  The parties or their privies are the same, that is to say, that the parties involved in both previous and present proceedings are the same;

 

ii  The claim or the issue in dispute in both the previous and present actions are the same;

 

iii  The res, that is to say, the subject matter of the litigation in the two cases is the same;

 

iv   The decision relied upon to support the plea of estoppel per rem judicatam must be valid, subsisting and final and

 

v  The court that gave the previous decision relied upon to sustain the plea must be a court of competent jurisdiction.

 

 

Unless the above pre-conditions are established the plea of estoppel per rem judicatam cannot be sustained. See generally Oke v. Atoloye (1985) I N.W.L.R. (Pt, 15) 241 at 260, Yoye v. Olabode and others (1974) 1 All N.L.R. (Pt. 2)118 at 122, Idowu Alasa others v. Sanya Olori Ilu (1965) N.M.R. 66, Fadiora v. Gbadebo (1978) 3 S.C. 219 at 229. The burden is on the party who sets up the defence of res judicata to establish the above pre-conditions conclusively. Once they are established, such previous judgment is conclusive and estops the plaintiffs from making any claim contrary to the decision in the previous judgment.

 

 

In determining whether the plea of estoppel per rem judicatam or whether the issues, the subject matter of the two actions and the parties are the same, the court is permitted to study the pleadings, the proceedings and the judgment in the previous proceedings.The court may also examine the reasons for the judgments and other relevant facts to discover what was in issue in the previous case. See Fadiora v. Gbadebo (supra).

 

 

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It is therefore a question of fact whether the parties and their privies, the facts in issue and the subject matter of the claim are the same in both the previous and the present cases.

 

Another important issue on the plea of estoppel per rem judicata, is that it must be specifically pleaded to avail the party invoking it. See Omeazu Chukwurah v. Ofochebe (1972) 12 SC 189 at 195 and Omidokun Owoniyi v. Omotosho (1961) All N.L.R. 304. I think it is now convenient to examine briefly some of the more important general principles governing pleadings which I consider relevant to the issue under consideration in this appeal.

 

 

The main function of pleadings is to ascertain with as much certainty as possible the various matters that are actually in dispute and those in which there are agreement between the parties and thus to appraise the opposing party in the action of the case the pleader is making so as to avoid any surprise at the hearing and to ascertain the issue or issues in controversy between the parties. In this regard, the parties will be enabled to settle before hand the evidence it shall adduce at the hearing. Pleadings are closed when parties came to issue. If both the statement of claim and the statement of defence do not bring the parties to issue on all the claims, the plaintiff shall file a Reply. Where no counterclaim, as in the present action, is filed, further pleadings by way of a Reply to the Statement of Defence is generally unnecessary if the sole purpose is to deny the averments contained in the defendant’s Statement of Defence. See Aziz Akeregolu and others v. Lasisi Akinremi and others (1989) 3 N.W.L.R. (N. 108) 164 at 172. However, a Reply may be filed to plead relevant additional facts which will make any particular defence pleaded in the Statement of Defence untenable or negate the application of such defence.

 

 

A Reply is the defence of the plaintiff to the counter-claim of the defendant or to the new facts raised by the defendant in his defence to the plaintiff’s statement of claim and shall therefore be filed to answer the defendant’s averments in his counter-claim or to such new facts that have been raised in the Statement of Defence. I think it may also be said that as a general rule, where because of the defence filed, the plaintiff proposes to lead evidence in rebuttal or to raise issues of fact not arising out of the two previous pleadings, he shall in such circumstances file a Reply as he may not lead evidence of any material facts he had failed to aver in his pleadings. See Bakare and Another v. Ibrahim (1973) 6 S.C. 205.

 

 

The plaintiffs in their amended statement of claim copiously pleaded their versions of traditional history, traceable to their ancestor Olushi Onigbesa through whom they claimed ownership of the land in dispute. They also pleaded and alleged various acts of ownership and possession of the land in dispute. Suit No. 134/30 in which they claimed they were paid compensation by the Government in respect of Oshodi Railway Station was pleaded by them. Also pleaded was suit No. AB/110/57 which was said to be intra-family dispute between members of the Olushi Onigbesa family In the latter case, consent judgment was entered in accordance with the terms of alleged settlement filed in court and sanctioning the alleged partition of the Onigbesa family land. It is crystal clear from the entire averments in the plaintiffs 20 paragraph amended Statement of Claim that no reference whatsoever was made, no matter how remotely, with regard to suit No. AB/16/57 raised by the defendants as constituting estoppel per rem judicatam against the plaintiff.

 

 

It is patently clear that there was absolutely nothing wrong or strange with the failure by the plaintiffs to plead the said suit No. AB/16/57, particularly when from their Reply to the defendant’s Statement of Defence, they had averred that they knew

 

 

 

 

COUNSELS

 

Mahmoud ‘Gafar Esq, for the 1st and 3rd Defendants/Appellants.

 

 

Lateef Fagbemi Esq., S.A.N., (G. Oyewole Esq. with him,) – for the 2nd and 5th Defendant/ Appellants.

 

T.O.E. Kuye (Miss) for the Plaintiffs/Respondents.

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