MALLAM HASSAN ASIRU v. ALHAJI SHITTU ASIRU & ORS
(2013)LCN/6674(CA)
In The Court of Appeal of Nigeria
On Thursday, the 19th day of December, 2013
CA/IL/30/2012
RATIO
TYPES OF ESTOPPEL BY RECORD
There are two types of estoppel by record, otherwise known as estoppel per rem judicatam; (1) Cause of action estoppel and (2) Issue estoppel. By cause action estoppel a party to an action (or his agent or privy) is estopped from disputing in a fresh proceeding any matter that had been previously settled between him and another party by a court of competent jurisdiction while issue estoppels precludes a person, his agent or privy from commencing or prosecuting any subsequent proceedings in respect of issues which had been raised and finally settled in an earlier proceedings between him and another party to the earlier proceedings. See Oshodi v. Eyifunmi (2000) 13 NWLR (Pt. 684) 298; Fadiora v. Gbadebo (1978) 3 SC 219; Aro v. Fabolude (1983) 1 SCNLR 58. Per ISAIAH OLUFEMI AKEJU, J.C.A.
WHETHER FACTS NOT PLEADED CAN BE RECEIVED IN EVIDENCE
In an action commenced in a court of pleadings such as the trial court in the instant case, it is the pleadings that form the bedrock of the action. The claimant must plead relevant and material facts that will sustain the action. It is of course elementary law that facts not pleaded cannot be received in evidence as evidence led on any unpleaded fact will go to no issue. See Amadi v. Nwosu (1992) 6 SCNJ 59. It is also settled that parties as well as the court are bound by the pleadings and none can go outside the pleadings before the court. See. Osho v. Foreign Fin Corp (1991) 4 NWLR (Pt. 184) 157. Per ISAIAH OLUFEMI AKEJU, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
MALLAM HASSAN ASIRU
(For himself and on behalf of Asiru Atunde Family, Ganmo) Appellant(s)
AND
1. ALHAJI SHITTU ASIRU
2. ALHAJI OBA ASIRU
3. KWARA STATE INVESTMENT AND PROPERTY DEVELOPMENT CORPORATION, ILORIN Respondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Kwara State, Ilorin division delivered on 13/3/2012 in suit No. KWS/127/2010 wherein the claimant’s claim was dismissed while judgment was entered for the 3rd defendant for a declaration and injunction out of her counter claim. The 3rd defendant is now the 3rd respondent.
As set out in their Amended Statement of claim, the appellant who was the claimant at the trial court sought the following reliefs:
1. A declaration that the sale of parcel of land located near Ganmo Station, Ganmo, by the 1st and 2nd defendants to the 3rd defendant without the consent and approval of the claimant being the head of Asiru Atunde family is void, wrongful and illegal.
2. An order of this Honourable court setting aside the purported sale of the parcel of land near Ganmo station, Ganmo, by the 1st and 2nd defendants to the 3rd defendant without the consent and approval of the claimant for being wrongful, illegal and void.
3. An order of this honourable court setting aside the Statutory Right of Occupancy No. KW16989 dated 3rd June, 2010 obtained by the 3rd Defendant on the land in dispute and/or any document of title howsoever described purporting to transfer the land in dispute to the 3rd defendant.
The Respondents as defendants filed their own pleadings with the 1st and 2nd Respondents filing a joint defence, while the 3rd respondent’s statement of defence contained the following reliefs by way of counterclaim;
1. A declaration that the 3rd defendant is the lawful owner of the piece of land lying and situate at behind Baptist Church, Secretariat, Sapati Area, Ganmo, Ifelodun Local Government Area, Kwara State covered by Right of Occupancy No. KW16989.
2. An Order of perpetual injunction restraining the claimants and 1st and 2nd defendants’ family from entering the land or disturbing the peaceful possession of the 3rd defendant/counter claimant on the land.
3. General damages of N1 Million.
In support of the claim the appellant testified as the sole witness; the 1st and 2nd respondents called two witnesses, while the 3rd respondent called three witnesses.
The sole witness for the claimant, Hassan Ashiru was PW1. He adopted his statement on oath as his evidence. Under cross examination he claimed to be the head of Ashiru Sanmami family and the 1st and 2nd defendants his brothers from the same father. He said his family had occupied the land in dispute since it was founded by one Okunoye who founded Ganmo, and no one has ever challenged their title to the land. The family gave land to people who built houses and own farms thereon. He denied knowing the 3rd defendant or having any meeting with the 3rd defendant. He denied any knowledge of sale of land to 3rd defendant by the 1st and 2nd defendants.
In defence of the claim and establishment of the counter claim, the DW1, Saidu Mahmud adopted his statement on oath and tendered a memorandum of understanding as exhibit D1. Under cross examination he admitted sale of land to the 3rd defendant and that his own section got N1.7 Million while his family had no meeting with the 3rd defendant during negotiation for the sale of the land.
DW2, Alhaji Oba Ashim adopted his written statement on oath and when he was cross examined, he said although the lawyers who sold the land collected N5 Million, they were given only N1.7 Million and they did not inform the claimant of the sale because he was not in town. He was only informed when he came back. There was no meeting held between their family and the 3rd defendant.
DW3, Baba Abdulrahman, an Estate Officer with the 3rd defendant adopted his statement on oath. Under cross examination, he tendered various documents that were admitted as exhibits D2 – D11. He said he knew the 1st and 2nd defendants in the course of sale of land to 3rd defendant and they took him to the land, but he never met the claimant.
DW4, Hanafi Folorunsho was the Company Secretary/Legal Adviser to the 3rd defendant. He tendered the Right of Occupancy issued to the 3rd defendant as exhibit 12; and when he was cross examined, he said he was a legal practitioner for 5 years before he joined the 3rd defendant and he knew the procedure for investigating title before sale of land and that his evidence is not limited to what he found in the file in the office. He agreed that the 1st, 2nd and 3rd defendants entered into a memorandum of understanding when the 1st and 2nd defendants said the land that was sold belong to them.
The appellant as the claimant was aggrieved by the judgment and commenced this appeal through the Notice of Appeal filed on 17/4/12 but subsequently amended with leave of court. The amended Notice of Appeal filed on 12/12/12 has eleven grounds of appeal. The Appellant’s Brief of Argument filed on 13/11/12 was deemed filed on 14/1/13 while the 3rd Respondents’ Brief was filed with leave of court on 2/3/13. The 1st and 2nd respondents did not file any Brief of argument. The appellant filed a Reply Brief on 2/4/2013.
In the Appellant’s Brief of Argument settled by Manzuma Issa Esq. of counsel, the following issues were set down for determination.
1. Whether the 3rd defendant proved her counter claim on the preponderance of evidence before the court and whether the learned trial judge evaluated the evidence properly.
2. Whether the 3rd defendant is entitled to any relief from the trial court having failed to prove her title through any of the recognised methods of proof of title to land, and whether the Oluganna family ought to be joined to the suit to prove or defend the family’s title to the land in dispute.
3. Whether proper evaluation of documentary evidence, especially Exhibits D1 and D7 tendered before the trial court, ought to be the basis for assessing oral evidence and credibility of witnesses and whether, effects of documents ought to be stated in pleadings.
4. Whether the learned trial judge was right to have relied on the evidence of DW5 whose statement of witness on oath was incompetent having been dated 17/6/2011 but filed on 22/6/11 and whether the learned trial judge could revisit his earlier rulings in his final judgment without calling on counsel to address him on the point.
The issues for determination as formulated in the 3rd Respondents’ Brief settled by Olufunke Aboyade of counsel are the following:
1. Whether the 3rd Respondent pleaded the relevant facts and related them to the evidence on the record to entitle her to the counter claims and whether the learned trial judge was right in his decision when he held that the doctrine of issue estoppel applied to the case.
2. Whether the learned trial judge properly admitted the evidence on the record and properly evaluated the totality of the evidence of the parties before arriving at the decision to dismiss the appellant’s case and entering Judgment for the 3rd respondent on her counter claim.
3. Whether or not having regard to the pleadings, evidence of the parties and the 3rd respondent’s counter claim the trial court was right to declare that the 3rd respondent has proved title to the land.
4. Whether DW5’s statement on oath is valid, legally admitted and properly relied on by the trial court.
Counsel for the parties at the hearing of the appeal adopted their respective brief(s) of argument and placed reliance thereon as their argument in the appeal. Manzuma Issa Esq. for the appellant urged the court to allow the appeal based on strength of his Appellants, brief and Reply brief; Kamaldeen Ajibade Esq. for the 3rd respondent urged court to dismiss the appeal as argued and prayed by him in his 3rd respondent’s brief while Mrs. J. O. Michaels for 1st and 2nd respondents did not contest the appeal having not filed any brief of argument.
The appellant has raised four issues for determination in this appeal, same number as also formulated by the 3rd respondent. The first and second of the appellant’s issues concern the proof of the counter claim which is quite similar to the first and third issues in the 3rd respondent’s brief, about the 3rd respondent’s entitlement to the counter claim. The appellant’s third issue is evaluation of evidence which the 3rd respondent has made the second issue, while the reliance placed on the statement on oath of the DW5 is common to both parties as issue number four. I will therefore determine this appeal on the issues as raised by the appellant and as correspondingly canvassed by the 3rd respondent.
On the first issue, the appellant submitted that the 3rd respondent who had the burden of proving the counter claim, had stated facts that supported the title of Oluganna family that was not joined as a party to the suit and had relied on oral and documentary evidence to challenge the title of the appellant to the disputed land. It was argued that one Mallam Ganiyu who was called as DW5 to establish the traditional history gave evidence that was inconclusive, unreliable and his evidence was on unpleaded facts that should go to no issue, citing the Akande v. Adisa (2012) 5 SC (Pt. 1) 1.
On the three judgments relied on by the 3rd respondent as evidence of its title to the disputed land i.e. exhibits D9, D10 and D11, it was submitted that the judgments were merely pleaded without showing their effects either as issue estoppel or res judicata, citing Ayuya v. Yonrin (2011) 4 SC (Pt. 11) 1 for the conditions the 3rd respondent was expected to plead and establish. It was further argued that the learned trial judge had wrongly evaluated the evidence of DW3 and DW5 and concluded that the oluganna family is, by exhibits D10 and D11 the owner of the lands in Ganmo including the land in dispute based on the misinterpretation of those documents. On the requirements to be proved in a defence of res judicata, the case of Jimoh v. Akande (2009) 1 – 2 SC (Pt. 1) 116 was cited.
The learned counsel submitted that the 3rd respondent did not establish the counter claim on preponderance of evidence as he could not rely on the weakness of the defence; citing Anukam v. Anukam (2008) 1-2 SC 54.
On the second issue which is closely related to the first, the learned counsel submitted that 5 ways of proving title to land were stated in Yusuf v. Adegoke & Anor (2007) 4 SC (Pt. 1) 126 and a party may succeed by proving any of the 5 methods but the 3rd respondent in the instant case did not prove any of the methods the deed of transfer it tendered having been rejected and since no relationship was established between the 3rd respondent and Alhaji Kolawole, the Oluganna of Ganmo, 3rd respondent cannot claim through him. It was contended, relying on Olatunji v. Adisa (1995) 2 SCNJ 90 that the non-joinder of Alhaji Kolawole, the Oluganna of Ganmo as a defendant in this suit is fatal to the 3rd respondent’s claim on the basis that the title of Alhaji Kolawole, the Oluganna of Ganmo had been in issue in the case.
On the issue of entitlement of the 3rd respondent to the judgment of the court having regard to the pleadings and evidence on record which the 3rd respondent had also raised as issues 1 and 3 in her brief of argument, the learned counsel for 3rd respondent contended that relevant facts and related issues were pleaded and given in evidence to entitle 3rd respondent to the judgment of the court. It was contended also that issue estoppel and effect of exhibits D10 and D11 were stated by the 3rd respondent and given in evidence by witnesses. The effect of these pleadings and evidence is that the 3rd respondent had established that the family of the appellant was a party to the suits that led to the judgments because appellant’s forefather, one Lawani Sanmami was 3rd appellant in CA/K/69/90 and SC/1/1996.
The learned counsel submitted that issue estoppel was properly set up by the 3rd respondent in pleadings, and the facts constituting same are on record, citing Dim v. Enemuo (2009) 4-5 SC (Pt. 11) 48 for the conditions for the operation of issue estoppel in a case.
It was contended that the 3rd respondent through pleadings and evidence proved that the issue decided in the previous proceedings is title to the same land in the instant case, and the decision relied upon is final being that of the Supreme Court. The parties are also the same since one Lawani Sanmami who sued for himself and as representative of Ganmo Community belonged to the appellant’s family while Alhaji Karimu Kolawole, the head of Ganmo family was the 1st respondent in the previous case.
The learned counsel referred to paragraphs of the 3rd respondent’s statement of defence as well as the statements on oath of witnesses and contended that relevant facts were pleaded and oral and documentary evidence was given by 3rd respondent to support the claim thereby discharging the burden of proof in respect of the counter claim. It was argued that evidence of DW3, DW4 and DW5 together with exhibits D2 to D12 cover the fact in the 3rd respondent’s statement of defence to the effect that the Oluganna family, the predecessor in title of the 3rd respondent had been adjudged the owners of the land that was transferred to the 3rd respondent. It was submitted on the authority of Civil Design Construction Nig. Ltd v. SCOA Nig. Ltd (2007) 6 NWLR (Pt. 1030) 300 that documentary evidence is the guage to measure the credibility, of oral evidence.
On the land involved in this case, it was contended that its identity was not in issue at the trial court as the parties were at a consensus and the trial court entered judgment for 3rd respondent on the land claimed. The 3rd respondent’s land which is shown in the survey plan exhibit D8 is within the land customarily owned by 3rd respondent’s predecessor as affirmed in exhibits D10 and D11 all of which were admitted without any objection.
It was contended that the 3rd respondent had asserted that the land was purchased from Ganmo family whose head is Alhaji Atanda Kolawole, the Oluganna of Ganmo and this is borne out by the pleadings and evidence. Following payment of the purchase price, the 3rd respondent obtained the Statutory Right of Occupancy which was tendered as exhibit 12. It was submitted that the traditional evidence and documents relied upon by the 3rd respondent were not in any way challenged and it is open to a court to act on unchallenged evidence, citing Ogunleye v. Jaiyeoba (2011) 9 NWLR (Pt. 1252) 339. It was submitted also that a claim for declaration of title is successfully proved through one or more of the five methods or proof, citing Maigari v. Mailafiya (2011) 1 NWLR (Pt. 1228) 379.
A Statutory Right of Occupancy is a prima facie evidence of exclusive possession by a party and it raises a presumption in favour of its holder, so was submitted by learned counsel who cited Edebiri v. Daniel (2009) 8 NWLR (Pt. 1142) 15.
On the necessity for joinder of the Oluganna family, it was submitted that the reason for making a person a party to any action is to make that person to be bound by the result of the action and that there is a question in the action that cannot be settled effectually unless the person is joined as a party, citing Union Bank of Nigeria Plc. v. Osaze (2011) 7 NWLR (Pt. 1246) 293.
It was contended that the joinder of Oluganna family in this case is unnecessary since there are no questions that cannot be resolved without the family being made a party.
In the reply brief, the appellant argued that the 3rd respondent merely dumped the defence of estoppel on the court without giving enough particulars and cited Obueke v. Nnamchi (2012) 5 SC (Pt. 11) 1. It was argued that section 169 of Evidence Act is inapplicable to this case as the section does not relieve the 3rd respondent from discharging its burden of proof. Failure of the claimant to respond to the counter claim does not constitute an admission especially where the counter claim is predicated on matters on which the parties had joined issues and the reliefs sought includes a declaration.
On the evaluation of documentary evidence which is issue number three by the appellant, the appellants counsel argued that the holding of the learned trial judge that the appellant colluded with the 1st and 2nd respondents to bring this action is unfounded. It was submitted that any member of a family can sue to protect the family property, citing Mozie v. Mbamalu (2006) 7 SC (Pt. 11) 154. The appellant in this case challenged the sale of his family land by the 1st and 2nd respondents to the third respondent but the learned trial judge had ascribed collusion and fraud to the appellant both of which are crimes and must be proved beyond reasonable doubt.
The Learned Counsel contended that there was unchallenged credible evidence from the claimant, the DW1, DW2 and DW3 that the claimant was not aware of the sale of land to the 3rd respondent and the evaluation and assessment of credibility on this issue should have been based on exhibits D1 and D7 that evidence the transaction between the 1st and 2nd respondents and the 3rd respondent. It has been held in Fashanu v. Adekoya (1974) All NLR (Pt. 1) 35 that documentary evidence should be used as a hanger to assess oral testimony.
Egbunike v. A.C.B. (1995) 2 SCNJ 58 was also cited by learned counsel.
It was submitted that the sale of the appellant’s family land was done without the concurrence and consent of the appellant by those described in exhibits D1 and D7 contrary to the principle established in Ekpendu v. Erika (1959) 4 FSC 79 that such sale in void abinitio.
It was argued that the 3rd respondent failed to relate exhibits D9, D10 and D11 to this case in the pleadings and evidence, as held in the cases of A.N.P.P. v. Argungu (2009) FWLR (Pt. 467) 94; Onibudo & Ors v. Akibu (1987) All NLR 207 and A.N.P.P. v. Usman FWLR (Pt. 463) 1292.
On evaluation of evidence which is the 3rd respondent’s 2nd issue, the learned counsel for the 3rd respondent contended that the trial court properly admitted the evidence in this case and properly evaluated same before arriving at its decision to dismiss the appellant’s case and enter judgment for the 3rd respondent on her counter claim.
The learned counsel contended that while the appellant failed to establish his case, the 3rd respondent placed before the court credible evidence based on pleadings and was rightly given judgment.
It was contended that the learned trial judge extensively reviewed the evidence of the parties, considered the arguments of counsel and went on to evaluate the evidence in line with the established practice. It was submitted that where the trial court has properly evaluated the evidence of the parties, an appellate court will not interfere with the decision arising therefrom, citing Bersia Eke v. Orikoha (2010) 8 NWLR (Pt. 1197) 421 and Obuekwe v. Nnamchi (2012) 12 NWLR (Pt. 1314) 327.
The learned counsel argued that exhibits D1 and D7 not being instruments transferring land do not support the appellants’ case and the 3rd respondent has not relied on them as conferring title but as showing what transpired between the parties before the transaction between the 3rd respondent and Kolawole Ganna family was consummated.
The case of Udogwu v. Ifekandu (2001) 17 NWLR (Pt. 741) 49 was cited.
It was submitted that civil cases are determined on preponderance of evidence or balance of probabilities; Eyo v. Onuoha (2011) NWLR (Pt. 1257) 1.
In the reply brief, the appellant’s counsel submitted that this court can reevaluate documentary evidence in this case as the trial judge has failed to do so and the failure has occasioned a miscarriage of justice.
The last issue i.e. number four in the appellant’s brief is whether the learned trial judge was right to have relied on the evidence of DW5 and this is also the fourth issue in the 3rd respondent’s brief.
Learned counsel for the appellant had urged that the evidence of the DW5 be discountenanced for the reason that the statement on oath of this witness dated 17/6/2011 was sworn on 22/6/2011 and signed in the office of his counsel, the implication of which is that there is no validly sworn deposition of DW5 before the trial court and the court should have declared the statement of this DW5 as incompetent on the authority of Chidubem v. Ekenna (2009) All FWLR (Pt. 455) 1692; Buhari v. INEC & Ors (2008) 12 SC (Pt. 1) 1 and Onochie v. Odogwu (2006) 2 SC (Pt. 11) 155. Reliance was also placed on order 27 of Kwara State High Court (Civil Procedure) Rules 2005 and section 90 of the Evidence Act, 1990.
On the holding of the learned trial Judge that the action is an abuse of court process upon which the appellant’s action was dismissed, the learned counsel submitted that the decision of the trial court runs contrary to that in Ojagbo v. Inland Bank Plc (1998) 11 NWLR (Pt. 574) 433 where it was held that a reasonable cause of action cannot co-exist with abuse of court process.
In the 3rd respondent’s brief, the learned counsel contended that the statement on oath of the DW5 is valid, legally admitted and properly relied upon by the trial court. The learned counsel relied on section 111 of Evidence Act, 2011 to contend that the statement on oath was sworn before a Commissioner for oaths at the Court’s registry and filed there. It therefore complies with sections 108 and 109 of the Evidence Act and section 4(2) and 4(3) of the Oaths Act. It was submitted that the evidence obtained from a witness is, legally admissible despite any irregularity in its being sworn once it does not occasion a miscarriage of justice, citing Uduma v. Arunsi (2012) 7 NWLR (Pt. 1298) 55; Anatogu v. Iweka (1995) 8 NWLR (Pt. 415) 547.
I think I should start the consideration of these issues and determination of this appeal with the last two issues that concern the evaluation of evidence by the trial court and the admissibility of the statement on oath of the 3rd respondent’s witness who testified as the DW5, so that the issues may not be rendered academic after determining the remaining issues. The appellant has urged that the statement be discountenanced on the basis that it was signed in the office of 3rd respondent’s counsel and dated
17/6/11 but filed on 22/6/11. The 3rd respondent’s counsel has argued that the statement is valid, lawful and lawfully received and relied upon by the learned trial judge.
The witness statement on oath in contention here is that of Ganiyu Kolawole who testified as the DW5. The written statement is on pages 88-89 of the record of appeal and it shows on its face that it was sworn before the Commissioner for oaths in the Kwara State High Court Ilorin on 17th day of June, 2011. It was however filed as part of the affidavit of one Olusegun Balogun on 22/6/11 in support of the motion on notice by the 3rd respondent to call additional evidence.
DW5 testified and adopted the written statement as his evidence before the trial court. This is at page 190 of the record which shows that there was no objection or opposition to the statement being received in evidence. The appellant waited till the final address of counsel before he remembered to raise an issue out of the DW5’s written statement on oath. I rather believe and hold that it had become too late in the day to raise an objection to that statement as it is obvious that the present objection or complaint does not constitute an issue of jurisdiction of the court that can be raised at any stage of the proceedings even on appeal. See Buhari v. INEC (2009) FWLR (Pt. 591) 419.
I resolve this issue against the appellant.
On evaluation of documentary evidence tendered as exhibits D1 and D7 and the use thereof as basis for assessing oral evidence and credibility of witnesses, it is generally the duty of the trial court to evaluate evidence before it and give probative value thereto and it is not the function of an appellate court to substitute its own views for those of the trial court, but where the trial court failed to properly evaluate the material evidence, the appellate court will in the interest of justice set aside the decision.
See Eholor v. Osayande (1992) 7 SCNJ 217; Okunzua v. Amosu (1992) 7 SCNJ 243; Iriri v. Erhurhobara & Anor (1991) 2 NWLR (Pt. 173) 252. Where the question relates to documentary evidence which does not touch on the credibility of witnesses, the appellate court is in as good a position as the trial court to evaluate evidence and make appropriate findings. See Nwaezema v. Nwaiyeke (1990) 5 SC (Pt. 11) 52; GMBH v. Tunji Dosumu Industries Ltd (2010) 11 NWLR (Pt. 1206) 589, (2010) FWLR (Pt. 529) 1024.
The two documents now put in issue in this appeal must be viewed against the relevant facts of this case as succinctly put by the learned counsel for the 3rd respondent in his brief of argument which I entirely endorse. He stated the facts thus at page 14 (paragraph 5.02) of the brief:
“The 3rd respondent’s case is that whereas it initially entered into an agreement to purchase the land from the claimant’s family and two other families not parties to this suit, and had in fact made part payment of N5 Million to the families acting on their representations, but upon being confronted with facts that the Kolawole Ganna family are the customary owners of the land, the 3rd respondent entered into a fresh agreement for the purchase of the entire land with that family and paid the sum of N10 Million as evidenced by exhibits D5 and D6 to that family and went ahead to process the necessary title documents.”
This was indeed the evidence of the 3rd respondent’s witnesses which the learned trial judge believed on page 215 of the record. Exhibits D1 and D7 are one and same document tendered by the DW1 (as D1) and DW3 (as D7) respectively. It is a memorandum of understanding between the three families from which the 3rd respondent had proposed to buy land before it was discovered that the land was that of a different family from who the 3rd respondent later bought for N10 Million. The 1st and 2nd respondents had signed exhibits D1 and D7 as principal members of the family of Sanmami, but the 3rd respondent ended up not purchasing the land from the 1st and 2nd defendants. I cannot fault the evaluation of these exhibits by the learned trial judge and the view he expressed in respect thereof based on the oral evidence available to court.
This issue is also resolved against the appellant.
The remaining issue here is whether based on the pleadings and evidence before the court, the 3rd respondent was entitled to the judgment of the court in respect of the counter claim. I had earlier on explained the marriage of the issues in the briefs of argument.
It is the law that a counter claim which is also known as a cross action is a separate action that is independent of the action in which it is filed. It is therefore governed by the rules of court as to its commencement and the same burden of proof in a civil action. See Dabup v. Kolo (1993) 12 SCNJ; Oglioko Memorial Farms Limited v. N.A.C.B. Ltd (2008) 12 NWLR (Pt. 1098) 12.
The 3rd respondent had by way of counterclaim sought three reliefs of declaration, injunction and general damages of N1 Million. The learned trial judge granted the declaration and injunction but refused the claim for general damages.
In an action commenced in a court of pleadings such as the trial court in the instant case, it is the pleadings that form the bedrock of the action. The claimant must plead relevant and material facts that will sustain the action. It is of course elementary law that facts not pleaded cannot be received in evidence as evidence led on any unpleaded fact will go to no issue. See Amadi v. Nwosu (1992) 6 SCNJ 59. It is also settled that parties as well as the court are bound by the pleadings and none can go outside the pleadings before the court. See. Osho v. Foreign Fin Corp (1991) 4 NWLR (Pt. 184) 157.
In support of the counter claim the 3rd respondent relied on the pleadings in the statement of defence against the appellant’s action which include the facts that three families of Sagmami Asiru, Akeem Salmonu Bakare and Isiaku Amao of Ganmo had jointly represented themselves to the 3rd respondent as the customary owners of the land claimed by the 3rd respondent and had agreed to sell 300 plots thereof to the 3rd respondent who had indeed paid N5 Million to those families but before a deed of transfer could be executed, the 3rd respondent got a petition from Kolawole Ganna the Oluganna that his family actually owned the land proposed to be sold, which ownership was said to have been confirmed by the Supreme Court in the case of Alhaji Garba Akosile & Ors v. Alhaji Karimu Kolawole & Ors, Suit No. SC/1/1996. The 3rd respondent further averred as follows:
“16. The 3rd defendant after discovering that the three families including that of the claimant (Asiru Sanmami) family had no title to sell the land it entered into a proper agreement with the Kolawole Ganna family for the purchase of the land and paid the sum of N10 Million to the family through their solicitor…
17. The deed of transfer was executed between Alhaji Abdullahi Atanda Kolawole Oluganna of Ganmo (for himself and the entire Ganmo family of Ganmo) and Kwara Investment and Property Development Company Limited in respect of the 300 plots of land situate at behind Baptist Church, Afon Road, Sapati Area, Ganmo, Ifelodun Local Government Area, Kwara State. The Deed of Transfer dated 21st August 2009 is hereby pleaded and shall be relied on at the trial.
18. The 3rd defendant caused the land to be surveyed by a licensed surveyor M. A. Orire and the survey plan No. 845/55/2009 is hereby pleaded.
19. The 3rd Defendant obtained a Statutory Right of Occupancy on the land from the Kwara State Government with Right of Occupancy No. KW/169/89 dated 3rd June, 2010. The Right of Occupancy is hereby pleaded.”
The pleaded documents except the Deed of Transfer were admitted at the trial of the action. Thus apart from the oral evidence of the DW5, there were documents in the nature of judgments in defence of the action of the claimant, and Right of Occupancy in support of the 3rd respondent’s counter claim. It is settled that where a party claims declaration of title or entitlement to land, the onus is on that party to prove the case, and he does so by relying on the strength of his own case and not on the weakness of the defence. See Bankole v. Pelu (1991) 8 NWLR (Pt. 211) 523; Kazeem v. Mosaku (2007) 17 NWLR (Pt. 1064) 523; Chukweke v. Nwankwo (1985) LPELR 858 (SC); Aremu v. Adetoro (2007) 16 NWLR (Pt. 1060) 244.
It is now well established following Idundun v. Okumagba (1976) 9-10 SC 227 that a claimant for title to land may base his claim on any of the following 5 ways:
(a) Traditional evidence.
(b) Production of documents of title.
(c) Acts ownership extending over a sufficient length of time numerous and positive enough to warrant the inference that the person is the true owner.
(d) Acts of long possession and enjoyment of the land
(e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would also be the owner of the land in dispute.
See Orlu v. Gogo Abite (2010) 8 NWLR (Pt. 1196) 307; Obineche v. Akusobi (2010) 12 NWLR (Pt. 1208) 383.Although the 3rd respondent was expected to prove ownership or title through one of these five ways, the evidence of the DW3, DW4 and DW5 show that the 3rd respondent relied on traditional evidence and production of documents as also well founded by the learned trial judge.
I do not find the contention of the appellant on the identity or size of the land is this case to be well taken, and this is because the 3rd respondent tendered the survey plan of the land it purchased as exhibit 8 and that plan has not been contradicted or challenged. Also both from pleadings and evidence, none of the parties is deceived or even mistaken as to the identity, location and quantum of the land claimed by the 3rd respondent. The identity of the land was never in issue at the trial. Although the claimant for declaration of title bears the burden of proving the land he claims with exactitude, that burden will only arise where the identity of the land has been made an issue by the adverse party in the pleadings and evidence. See Ezeudu v. Obiagwu (1986) 2 NWLR (Pt. 21) 208; Adelusola v. Akinde (2004) 12 NWLR (Pt. 887) 295; Mavaki v. Dogara (1993) 8 NWLR (Pt. 318) 585; Olubodun v. Lawal (2008) All FWLR (Pt. 434) 1468.
Where also as in this case the parties are ad idem on the identity of the land, the burden of proof cast on the claimant is obviated. See Osho v. Ape (1998) 8 NWLR (Pt. 562) 492; Ogbu v. Wokoma (2005) All FWLR (Pt. 277) 815.
I have already acceded to the evaluation of both oral and documentary evidence by the learned trial judge and I accept all the findings of fact therefrom which I do not find it necessary to disturb.
On the joinder of the family of Kolawole Ganna which the appellant had canvassed, it is on record that the DW5 is a representative of the family as a witness in the instant suit and his evidence shows that there is nothing therein that makes the family necessary party or even a desirable party to this suit since there is no issue in the suit that cannot be decided without its being a party. That family is at best a necessary witness that it has been made in the instant action. See Green v. Green (1987) LPELR 1338 (SC); Babayeju v. Ashamu (1998) LPELR 700 (SC).
The fact that Oluganna family was aware of this action and came to testify as a witness shows beyond any equivocation that they were aware of this action, and if for any reason they have any right or interest that has not been taken care of, they would have applied to join as a party.
It is significant to note that the appellant had argued that the 3rd respondent merely pleaded the judgments now admitted as exhibits D9, D10 and D11 without showing their effects either as res judicata or issue estoppels including the conditions governing their application.
I am afraid, I cannot follow this line of argument of learned counsel which seems to suggest that the pleader of facts will go ahead to teach the court the effect of the facts pleaded and the conditions governing the application of those facts.
Estoppel generally as defined by Black’s Law Dictionary, 9th Edition page 629 is a bar that prevents one from asserting a claim or right that contradicts what one has said, or done before or what has been legally established. In Agbogunlori v. Depo (2008) All FWLR (Pt. 408) at 255, the Supreme Court stated thus on the matter of estoppel.
“Estoppel is that doctrine where a party is not allowed to say that a certain statement of fact is untrue whether in reality it is true or not. It is therefore a disability whereby a party is precluded from alleging or proving that a fact is otherwise than it has been made to appear by the matter giving rise to that disability.
Estoppel can be created in several ways.
The common law recongnises three kinds.
(1) Estoppel by record or quasi by record
(2) Estoppel by dead and
(3) Estoppel in pais.”
In view of the pleadings of the 3rd respondent in paragraph 15 of the statement of defence that;
“15. The claimant’s family and the Salmoni Bakare and Isiaka Aremu families are parties to the suit No. SC/1/1996 which got to the Supreme Court right from the High Court, Court of Appeal and Supreme Court in which the title and ownership of the Kolawole Ganna family to the land was affirmed by the court. The copies of the judgment of the Court of Appeal, the lead judgment of the Supreme Court and the interpretation of the case by High Court thereof are pleaded,”
the relevant one in the instant appeal is estoppel by record which is also known as estoppels per rem judicatam.
There are two types of estoppel by record, otherwise known as estoppel per rem judicatam; (1) Cause of action estoppel and (2) Issue estoppel. By cause action estoppel a party to an action (or his agent or privy) is estopped from disputing in a fresh proceeding any matter that had been previously settled between him and another party by a court of competent jurisdiction while issue estoppels precludes a person, his agent or privy from commencing or prosecuting any subsequent proceedings in respect of issues which had been raised and finally settled in an earlier proceedings between him and another party to the earlier proceedings. See Oshodi v. Eyifunmi (2000) 13 NWLR (Pt. 684) 298; Fadiora v. Gbadebo (1978) 3 SC 219; Aro v. Fabolude (1983) 1 SCNLR 58.
The plea of estoppels per rem judicatam is founded upon the existence of the following basic factors.
1. That the subject matter or issue in dispute in both actions are the same and the parties or their privies are also the same.
2. That the decision or decisions in the previous case is valid, legal and final.
3. That the previous court had competently exercised jurisdiction over the subject matter now in dispute.
See Agbogunleri v. Depo (supra) Ekpe v. Antai (1944) WACA 19; Alao v. Akano (1988) 1 NWLR (Pt. 71) 431.
There is no gainsaying that the parties in such a judgment include their privies which in simple terms mean those who drive title from the parties either by blood, in a relationship such as vendor or purchaser, lessor and lessee. See also the cases of Njoku v. Eme (1973) 5 SC (Reprint) 211; Udo v. Obot (1989) 1 SC (Pt. 1) 64.
It has been held that the matter of estoppel does not need to be pleaded in any particular form, so long as the matters that constitute the estoppel and showing that the person pleading the same relies on them are put before the court. See Chinwendu v. Mbamah (1980) 3 – 4 SC 21.
After the learned trial judge had reviewed and evaluated the evidence of the parties, he concluded at page 213 of the record of appeal that by virtue of the decisions in exhibits D10 and D11 the claimant is estopped from asserting that Kolawole Ganna family was not the owner of the land in dispute since that issue of ownership of the land in Ganmo as between the claimant’s family and Kolawole Ganna Family has been distinctly put in issue and decided with solemnity against the claimants forebears.
I have taken a good look at exhibits D9, D10 and D11. They are judgments of courts of competent jurisdiction in which the predecessor of the appellant in the instant appeal, Alhaji Lawani Sanmami is involved. The matter of the land of Ganmo went as far as to the Supreme Court which in the judgment in exhibit D11 put the issues to finality.
I agree with the findings and conclusion of the learned trial judge that the appellant ought not to be allowed to commence or relitigate on the same subject matter between him (or his family) and the 3rd respondent that had derived its title from the Oluganna family that was also a party to the case involved in exhibits D9, D10 and D11.
What the foregoing has come to is that the 3rd respondent had by its pleadings and evidence proved his entitlement to the reliefs granted by the trial court through credible oral traditional evidence, and production of documentary evidence especially the Right of Occupancy admitted as exhibit 12.
I therefore resolve these two combined issues against the appellant and having now resolved all the issues against the appellant, the appeal has become hollow, bare and unmeritorious and the only option is to dismiss it.
I consequently dismiss the appeal with costs of N30,000.00 in favour of the 3rd respondent.
HUSSEIN MUKHTAR, J.C.A.: I have had the advantage of reading in draft the judgment just rendered by my learned brother Hon. Justice I. O. Akeju, J.C.A. with which I entirely agree.
His Lordship has meticulously dealt with all the issues submitted for the determination in this appeal. I respectfully adopt all the reasoning canvassed therein and the conclusion that the appeal is bereft of substance. I accordingly dismiss it and affirm the judgment of the court below delivered on 13th March 2010 in suit No. KWS/127/2010. I subscribe to the order made as to costs.
UCHECHUKWU ONYEMENAM, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother ISAIAH OLUFEMI AKEJU, JCA. My learned brother dealt with the issues in detail and I agree with his analysis and conclusion in resolving that the appeal totally lacks merit. I also dismiss the appeal.
I abide by the award of cost in the lead judgment in favour of the 3rd Respondent.
Appearances
Manzuma Issa Esq. with
Ibrahim EjikeFor Appellant
AND
J. O. Michaels (Mrs.) – 1st and 2nd Respondents
Kamaldeen Ajibade Esq. with him Tunji Ojuokaiye Esq. – 3rd RespondentFor Respondent
