MALOT OMOKOYA & ORS v. HOSEA OGBERE & ORS
(2018)LCN/11988(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 18th day of July, 2018
CA/L/406/2005
RATIO
JURISDICTION: THE PRINCIPLE OF RES JUDICATA
“The principles of res judicata and the conditions that must be fulfilled to establish a plea of res judicata are well established and have been restated in a plethora of judicial decisions in this Court and the Supreme Court. See ODUTOLA Vs. ODERINDE & ORS [2004] 12 NWLR (Pt. 888) 574; (2004) LPELR-2258 (SC) Pg.10, Paras. A – D; OKPOSIN & ORS Vs. ASSAM & ORS [2005] 14 NWLR (Pt. 945) 495 (2005) LPELR-2521 (SC) Pg. 10, Paras. C – F and OGBOLOSINGHA & ANOR VS. BAYELSA STATE INDEPENDENT ELECTORAL COMMISSION & ORS (2015) LPELR-24353 (SC) Pg. 27-28, Paras. E – G where the Supreme Court per OGUNBIYI JSC held that: ‘…For a plea of estoppel per rem judicatam to succeed, the party relying thereon must establish the following requirements or pre-conditions namely:-
(a) That the parties or their privies are the same in both the previous and the present proceeding,
(b) That the claim or issues in dispute in both actions are the same.
(c) That the res or subject matter of litigation in the two cases is the same
(d) That the decision relied upon to support the plea of estoppel per rem judicatam is valid, subsisting and final.
(e) That the Court that gave the previous decision relied upon to sustain the plea is a Court of competent jurisdiction.
It has also been held severally by this Court that, unless all the above constitutional elements or requirements of the doctrine are fully established, the plea of estoppel per rem judicatam cannot sustain…'” PER TIJJANI ABUBAKAR, J.C.A.
JUSTICES
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
1. MALOT OMOKOYA
2. FLORENCE OGBERE
3. EBENEZER OGUNGBAMILA
4. JAMES AIREOMIYE Appellant(s)
AND
1. HOSEA OGBERE
2. ISREAL ELEBIOMAYO
3. CLADIUS OGBERE
4. ESROME ELEBIOMAYO Respondent(s)
TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Lagos State sitting in the Ikeja Judicial Division, delivered by A. F. Adeyinka J. (later C. J., Lagos State) on the 16th day of April, 2004 in Suit No: ID/452/89 which is contained at pages 238 – 255 and replicated at pages 444 – 461 of the records of appeal wherein the learned trial Judge entered judgment in favor of the Respondents and granted the reliefs as per the Writ of Summons dated 9th October, 1989 at pages 1-2 of the records of appeal and the Amended Statement of Claim dated 17th November, 1995 contained at pages 199 -203 of the records of appeal.
I need to briefly state that the Respondents as Plaintiffs commenced action against the Appellants by writ of summons as stated herein and claimed as follows:
1. A declaration that the Plaintiffs are entitled to a statutory right of Occupancy over all that piece of land situate, lying and being at Ebute Ilaje Bariga in the Somolu Local Government Area of Lagos State of Nigeria which land is better known and called plot No. 42, of Atunrase allotment and which land is more particularly described and registered as No. 26 at page 26 in Volume 1584 of the Lands registry in the office at Lagos,
2. The sum of Ten Thousand Naira (N10,000,00) being general and special damages for the trespass committed by the Defendants their Agents and servants on the said land.
3. Injunctions restraining the Defendants by themselves their Agents and servants on the said land.
The learned trial Judge entered judgment in favor of the Plaintiffs. The Defendants therefore became aggrieved by the decision of the Lower Court and therefore filed an Amended Appellant’s Notice of Appeal on the 2nd day of March, 2012, premised on four (4) grounds of appeal. The Appellants filed further Amended Appellants’ Brief of Argument on the 31st day of May, 2013, it was deemed as properly filed and served on the 20th day of April, 2018, the Appellants further amended brief of argument was filed by learned Counsel Awolade Esq.
Olumide Akinnimi Esq., on the other hand filed the Respondents’ Brief of argument on the 2nd day of March 2009 also deemed as properly filed and served on the 20th day of April 2018.
In the Appellants further amended brief of argument, Learned counsel crafted 3 [three) issues for determination, the three issues are reproduced as follows:
1. Whether the learned trial Chief Judge of the High Court of Lagos State (as he then was) correctly identified all the issues in controversy in the suit before him.
2. Whether the vexed issue of ownership of the land in dispute can be properly resolved by trial Court without considering the overriding effect of the Ports (Declaration of Ports Limits) Order 1975; Ports Act, Cap 361 Laws of Federation of Nigeria; and Lands (Title, Vesting etc.) Decree No. 52 of 1993 on the land in dispute
3. Whether the learned trial Chief Judge was right when he entered judgment in favor of the Plaintiffs.
The Respondent on the other hand nominated four (4) issues for determination, they are also reproduced as follows:
1. Whether or not the learned trial judge failed to make findings on the nature of the land in dispute and who had possession of it.
2. Whether the decisions of the Court of Appeal in FC/L/66/79 – Hosea Ogbere & Ors v. Malot Omokoya & Ors and CA/L/37/89 Olukayode v. Lawrence Mimaiye Ajeri & Ors were such that could have precluded the trial Court from giving judgment in favour of the respondent.
3. Whether the learned trial Judge was right in holding that the Ports Act, Cap 367, Laws of the Federation of Nigeria, 1990 and the Ports (Declaration of Limits) Order are not applicable to this case.
4. Whether the counter-claim of the defendants/appellants should have succeeded after failing to prove their title to the land in dispute.
SUBMISSION OF COUNSEL FOR THE APPELLANTS
ISSUE ONE
Learned counsel for the Appellants referred to Paragraph 16 of the Plaintiffs’ [Respondents) Amended Statement of Claim found at pages 199 – 203 of the records of appeal; Paragraph 9 of the Defendants’ (Appellants) Second Amended Statement of Defense at pages 217 – 219 of the records of appeal; the testimony of the Plaintiffs [Respondents) on the 4th day of April, 2001- found at page 379 of the records of appeal; the examination in-chief and cross-examination of the 1st Plaintiff [Respondent) on the 2nd day of October, 2001 at pages 385-386 of the Records of Appeal; the 1st Defendants’ [Appellants) witness testimony at pages 390 – 391 of the Records of Appeal; Exhibit D1 at pages 131 – 150 of the records of appeal [particularly the counter-claim at page 134 and the Ruling at page 136); the issue of res judicata raised in the Defendants’ [Appellants] final written Address at page 424 of the records of appeal; the Defendants’ [Appellants) Reply to the Plaintiffs’ [Respondents) Written Address at page 439 of the Records of Appeal and the Plaintiffs’ [Respondents) final written address at page 431 of the records of Appeal.
Learned counsel relied on OGBONNA Vs. A.G. IMO STATE [1992] 1 NWLR (Pt. 220) Pg. 647 at 675 to submit that the Plaintiffs’ [Respondents) counsel submissions in the final written address at page 431, of the Records of Appeal was a misconception and that the Plaintiffs (Respondents) failed to disclose the fact that their Counter-Claim was dismissed. Counsel referred to page 140 of the records of appeal to submit that the Plaintiffs [Respondents) specifically filed a Counter-Claim to Suit No. ID/316/76/C that was dismissed while the Defendants’ [Appellants] claim succeeded partly with the award of N1,800,00 as damages. Counsel referred to page 147 of the records of appeal to state further that the Plaintiffs [Respondents) filed an appeal against the judgment in Suit No.ID/316/76/C and the appeal succeeded only in part while the specific ground that alleged the wrongful dismissal of their Counter-Claim was dismissed.
Learned counsel referred to the findings of the Lower Court at page 456 of the records of appeal wherein the land in dispute was identified as Plot No. 42, Atunrase Layout, Ebute-Ilaje, Bariga. Counsel further referred to Suit No: ID/316/7 6/C which was appealed against in Appeal No: FCA/L/66/79 wherein the same Plot No.42, Atunrase Layout was the subject matter. Learned counsel contended that despite these facts, the learned trial Judge entered judgment in favor of the Plaintiffs (Respondents); and that the implication of the Lower Court’s Judgment at page 460-461 of the records of appeal is that the same Plaintiffs (Respondents) whose Counter-Claim was dismissed in Suit No: ID/3L6/76/C and affirmed as dismissed in Appeal No: FCA/L/66 /79 had now obtained judgment before the Lower Court in respect of the same subject matter.
Learned counsel referred to ARUBO Vs. AIYELERU [1993] 3 NWLR (Pt. 280) Pg.126 Ratio 7 and 8; IKOTUN Vs. OYEKANMI (2008) 44 WRN Pg.1 Ratios 8 – 11; DAUDA Vs. A.G OF LAGOS STATE (2011) 24 WRN Ratio 3 and THE HONDA PLACE LIMITED Vs. GLOBE MOTOR HOLDINGS NIG. LIMITED (2006) 10 WRN Pg.134 Ratio 3 to contend that the pleadings and oral evidence before the Lower Court disclosed sufficient materials upon which the Lower Court could predicate a determination whether the plea of res judicata could avail the Appellants. Counsel further referred to the reference by the Lower Court at page 456 of the records of appeal to the earlier judgment of this Court in Appeal No: FCA/L/66/79; counsel submitted that the Lower Court failed to appreciate the fact that this Court dismissed ground 2 of that appeal and upheld the dismissal of the Plaintiffs’ [Respondents) Counter-Claim in Suit No: ID/316/76/C. Learned counsel submitted that the decision of the Lower Court occasioned miscarriage of justice because the Lower Court failed to identify and consider the issue of res judicata. Counsel urged this Court to resolve this issue in favour of the Appellants favour.
ISSUES TWO
Submitting on the second issue, learned counsel for the Appellants referred to the findings of the Lower Court at pages 460 and 458 of the Records of Appeal and contended that the position of the Lower Court – that a party relying on a law in proof of his case ought to plead that law – is contrary to the well-known principles of pleadings. Counsel referred to Section 122 (2) of the Evidence Act, 2011; BERNARD OKOEBOR Vs. POLICE COUNCIL & 2 ORS (2003) 5 SC Pg.11 at 127 and TAIYE OSHOBOJA Vs. AMIDA & 2 ORS (2010) 5 WRN Pg. Ratio 11 at 28 to submit that it cannot be said that the Lower Court correctly interpreted and applied the relevant laws as contended by the Appellant. Learned counsel contended that the findings of the Lower Court at page 458 of the Records of Appeal that Section 6 of the Ports Act and the Ports Order 1975 applied only to limits of Ports in Nigeria and not limits of land are ridiculous and untenable.
Learned counsel argued that the Lower Court could have recalled one of the surveyors who testified in this suit to link the available documentary evidence with the land in dispute; and that it is not enough for the Lower Court to find at page 458 of the Records of Appeal that the 4th Defendant who tendered Exhibits D11 – D13 was not a surveyor and did not connect the said exhibits to the land in dispute. Counsel referred to the testimony of the Plaintiffs’ (Respondents) 3rd Witness at pages 380 -381; the testimony of the Defendants’ (Appellants) 2nd Witness at page 393 of the Records of Appeal; the testimony of the 4th Defendant [Appellant) at pages 397 – 413 of the Records of Appeal; the judgment of the Lower Court delivered on the 4th day of May, 1988 in Suit No. ID/802/84 at pages 116 – 123 of the records of appeal wherein the claims of the Plaintiff therein were dismissed, and the decision of this Court in Appeal No.CA/L/31/89 (tendered as Exhibit D14) wherein the decision of the Lower Court in Suit No. ID/802/84 was affirmed.
Learned counsel submitted that the failure of the Lower Court to follow the two decisions of this Court in Appeal No: FCA/L/66/79 (tendered as Exhibit D1) and in Appeal No. CA/L/31/89 (tendered as Exhibit D14), and the failure to correctly interpret and apply the relevant laws resulted in a miscarriage of justice. Counsel referred to GANI-TARZAN MARINE ENTERPRISES LIMITED Vs. CARAVELLE RESOURCES AND INVESTMENT LIMITED & ANOR [2011] 14 NWLR (Pt. 1266) Pg.125, Ratio 6 – 7 to submit that this Court emphasized exclusive ownership by the Federal Government of Nigeria of lands within 100 meters limit and the exclusive management of the National Inland Waterways Authority over all navigable waterways, inland waterways, river ports and internal waters of Nigeria. Learned counsel submitted that in view of the evidence before the Lower Court, the allegations that there is no evidence that the land in dispute is within the Lagos Ports and for that there is no credible representative of the NPA to testify that the land in dispute belonged to the NPA cannot be sustained in the circumstances. Counsel urged this Court to resolve this issue in favour of the Appellants.
ISSUE THREE
On the third issue, learned counsel for the Appellants submitted that it was erroneous for the Lower Court to have granted the Plaintiffs’ [Respondents) claims in this suit simply because an earlier case was dismissed by this Court with cost awarded against Plaintiffs’ (Respondents) and therefore it cannot be said that title was conferred on the Plaintiffs’ (Respondents).
Counsel referred to the submissions on issue No. 1 to reiterate that the Plaintiffs’ (Respondents) claims at page 2 of the records of appeal is a relitigation of the same issues raised in the Counter-Claim by the same Plaintiffs (Respondents) as Counter-Claimants in Suit No.ID/316/76/C, which was dismissed and affirmed by this Court in Appeal No: FCA/L/66 /79 notwithstanding that the appeal succeeded partly. Learned counsel contended that the Lower Court failed to make proper use of the available documentary evidence and for interpret and apply the relevant laws to resolve the issues in controversy between the parties.
Learned counsel further submitted that this Court in Appeal No CA/L/31/89 exhaustively treated all the issues involved in this suit, but the Lower Court refused to follow the judgment. Counsel argued that in view of the existing litigation which vested the land in dispute in an agency of the Federal Government of Nigeria, it was wrong for the Lower Court to have held that where the Plaintiff and Defendant claim to be in possession of the land, the law ascribes possession to the party with a better title or a better right to possession of the land.
Counsel referred to the findings of the Lower Court at page 458 of the Records of Appeal that Section 6 of the Ports Act and the Ports Order 1975 applies to limits of ports in Nigeria and not limits of land, and submitted that this finding is not in conformity with the interpretation of the law by this Court in Appeal No.CA/L/31/89 tendered as Exhibit D14.
Learned counsel submitted that Plaintiffs’ (Respondents) claim for declaration of title granted by the Lower Court cannot be sustained, and that if the Respondent had any title, same had been extinguished in view of the legislation vesting the land in dispute in the appropriate Federal Government Agency. Counsel submitted that the Defendants (Appellants) on the other hand obtained a temporary occupation license thereby making their possession valid and legitimate. Counsel submitted that in view of the decision of this Court in Appeal No.CA/L/31/89 tendered as Exhibit D14, it will be a dangerous precedent to allow the decision of the Lower Court in this case to stand. Learned counsel urged this Court to resolve this issue in favour of the Appellants and allow the appeal.
SUBMISSIONS OF COUNSEL FOR THE RESPONDENTS
ISSUE ONE
Learned counsel for the Respondents referred to the testimony of PW1 and PW2 who tendered Exhibits P6 and P2; the testimony of PW3 who tendered Exhibit P7; and the testimony of the Appellants’ PW1 PW4 at pages 378-382 of the records of appeal to submit that the learned trial Judge formulated an issue on the identity of the land in dispute and found at pages 239 – 250 of the records of appeal that the land in dispute as claimed by the Plaintiffs [Respondents] is Plot No. 42, Atunrase Layout, Ebute-Ilaje, Bariga. Counsel submitted that the learned trial judge at page 250 – 254 of the Records of Appeal found that the Plaintiffs’ [Respondents] are the owners of the land in dispute. Learned counsel submitted that the Lower Court made clear and vital findings on the nature of the land in dispute and who was in possession of the said land. Counsel urged this Court to resolve this issue in favour of the Respondents.
ISSUE TWO
Submitting on Respondents issue number two learned counsel referred to the testimony of DW1 at pages 242-243 of the records of appeal, Exhibit D14 and the findings of the Lower Court at pages 249-250 of the records of appeal to submit that there is nothing in Exhibits D1 and D14 that could have tied the hands of the trial judge from presiding over or hearing this suit. Counsel argued that there was no claim for possession or declaration of title to the land in dispute in the suit that led to Appeal No: FCA/L/66/79, and that this Court in Appeal No: FCA/L/66/79 dismissed the claims of the Appellants who were Respondents in that appeal; and that this Court set aside the damages awarded against the Respondents who were Appellants in that Appeal and awarded costs against the Appellants herein.
Learned counsel contended that from the records and facts placed before the trial Court, it was clear that Appeal No. CA/L/31/89 tendered as Exhibit D14 was not between the parties to the present appeal; and that besides the parties not being the same, the subject matter and causes of action are entirely different because Suit No. ID/802/84 was between Mr. Olukayode Akinsanya Vs. Lawrence Mimaiye Ajeri & Ors. Counsel further contended that assuming, but not conceding, that Exhibits D1 and D14 are between the same parties and the subject matter and causes of action are the same, the Lower Court could still not have been precluded from hearing the suit because there was nowhere in the pleadings of the Defendants’ (Appellants) where res judicata was specifically pleaded. Learned counsel submitted on the authority of ARO Vs. ARO [2000] 3 NWLR (Pt. 649) Pg. 443 at 453, Paras. G – H and ADEBO Vs. OMISOLA [2005] 2 NWLR (Pt. 909) Pg.149 at 173-174, Paras. H – A that the issue of res judicata must be specifically pleaded, and evidence must be led in proof thereof.
Learned counsel further relied on OKPOSIN Vs. ASSAM [2005] 14 NWLR (Pt. 945) Pg. 495 at 505, Paras. A – D and OSHODI Vs. EYIFUNMI [2000] 13 NWLR (Pt. 684) Pg. 298 at 326, Paras. A – D; Pg. 349, Paras. F – H to contend that the issues for determination, the parties and the subject matter in Suit No.ID/802/84 and Appeal No:FCA/L/66/79 are different counsel further submitted that for a party who pleads res judicata to succeed, the parties, issue and subject matter in the previous suit must be the same with suit in which the plea of res judicata is raised. Learned counsel urged this Court to resolve this issue in favour of the Respondents.
ISSUE THREE
Learned counsel for the Respondents submitted that the Defendants/Appellants did not plead the Ports Act and Ports [Declaration of Ports Limits) Order 1975, but that the Appellants only pleaded at paragraph 20 (a) and (b) of their Statement of Defense that the National Inland Waterways Authority and the Nigerian Ports Authority had been collecting annual license fees from them on the land. Counsel submitted that the Appellants couldn’t found their claim on a statute, which they did not plead. Learned counsel argued that even if it is assumed that the Court can take judicial notice of the Ports Act and Ports (Declaration of Ports Limits) Order 1975, the Appellants did not in any way establish before the trial Court that the land in dispute falls within the meaning of Section 6 of the Ports Act, Cap 361. LFN 1990 and the Ports (Declaration of Ports Limits) Order 1975.
Learned counsel further contended that the Defendants [Appellants) only tendered in evidence license from National Inland Waterways, Nigerian Ports Authority and the Federal Ministry of Petroleum Resources but did not call any witness from either the National Inland Waterways or Nigerian Ports Authority or any expert to connect the land in dispute to the limits of Ports said to be the property of the National Inland Waterways and Nigerian Ports Authority. Counsel argued that the 4th Defense Witness – Collins Agouonma called by the Appellants was a ship captain with the Nigerian Ports Authority who testified that his duty was the maintenance and safety of ships and was not concerned with the issuance of receipts. Counsel submitted that the Lower Court came to the right conclusion at pages 251 – 253 of the records of appeal; counsel urged this Court to resolve this issue in favour of the Respondents and hold that the land in dispute is not within the meaning of Section 6 of the Ports Act, Cap 361 LFN 1990 and the Ports [Declaration of Ports Limits) Order 1975.
ISSUE FOUR
On this issue, learned counsel for the Respondents referred to pages 167 – 169 of the records of appeal to submit that the case of the Appellants at the Lower Court was that the land in dispute was a reclaimed foreshore land that belonged to the Nigerian Ports Authority, which issued temporary occupation license to them. Counsel contended that the Appellants did not tender any piece of evidence of title to the land but only tendered receipts and license from National Inland Waterways Authority, Nigerian Ports Authority and the Federal Ministry of Petroleum Resources without establishing the title of the Nigerian Ports Authority in the land in dispute when their Counter-claim was for possession and perpetual injunction.
Learned counsel submitted that a claim for damages for trespass and injunction against further trespass postulates that the Claimant is either the owner or was in exclusive possession of the land in dispute prior to the trespass complained of. Counsel argued that title and possession to land are so intimately interwoven that a finding on one may lead to an inference of the existence of the other. Counsel referred to OGUNBIYI Vs. ADEWUNMI [1988] 5 NWLR (Pt. 93) Pg. 215 at 221, Paras. B – D and AJEIGBE Vs. ODEDINA [1988] 1 NWLR (Pt. 72) Pg. 584, Para. C to submit that the trial Court was right in dismissing the Appellants Counter-claim because they failed to prove title or better right to possession of the land in dispute. Learned counsel submitted further that the law does not permit a party to a suit to plead title in a third party who is not a party to the suit. Counsel referred to BABATUNDE Vs. MODEL IND (NIG.) LTD [2004] NWLR (Pt. 879) Pg.614 at 628, Paras. F ? G and urged this Court to resolve this issue in favor of the Respondents and dismiss the Appeal.
RESOLUTION
The first issue submitted for determination by the Appellants is: “Whether the learned trial Chief Judge of the High Court of Lagos State (as he then was) correctly identified all the issues in controversy in the suit before him,” The contention of the Appellants is that the parties herein were parties in Suit No. ID/316/76/C; that the Respondents herein (Plaintiffs at the Lower Court and Defendants in Suit No. ID/376/76/C) specifically filed a Counter-Claim in the said Suit No.ID/316/76/C was dismissed, while the claim of the Appellants (Plaintiffs in Suit No.ID/316/76/C) succeeded partly with the award of N1,800.00 as damages; that the Respondents filed an appeal against the judgment in Suit No. ID/316/76/C and the appeal succeeded only in part while the specific ground which alleged the wrongful dismissal of their Counter-Claim was dismissed; that the pleadings and oral evidence before the Lower Court disclosed sufficient materials to lead the trial Court to determine whether the plea of res judicata can avail the Appellants; and that the Lower Court failed to appreciate the fact that this Court dismissed ground of appeal number 2 of that appeal and upheld the dismissal of the Respondents Counter-Claim in Suit No: ID/316/76/C.
The Appellants further submitted that the Lower Court identified the land in dispute as Plot No. 42, Atunrase Layout, Ebute-Ilaje, Bariga which is the same subject matter in Suit No: ID/316/76/C which was appealed against in Appeal No: FCA/L/66/79; that the implication of the Lower Court’s judgment in favour of the Respondents is that the same Respondents whose Counter-Claim was dismissed in Suit No: ID/316/76/C and affirmed as dismissed in Appeal No: FCA/L/66/79 has now obtained judgment before the Lower Court in respect of the same subject matter, and that the decision of the Lower Court has occasioned a miscarriage of justice because the Lower Court failed to identify and consider the issue of res judicata.
The Respondents argued that the learned trial Judge formulated an issue on the identity of the land in dispute and found that the land in dispute as claimed by the Respondents is Plot No.42, Atunrase Layout, Ebute-Ilaje, Bariga and that the Respondents are the owners of the said land in dispute. The Respondents further submitted that there is nothing in Exhibits D1 and D14 that could have tied the hands of the learned trial Judge from hearing the suit; that there was no claim for possession or declaration of title to the land in dispute in the suit that led to Appeal No: FCA/L/66/79; that this Court in Appeal No: FCA/L/66/79 dismissed the claims of the Appellants who were Respondents in that appeal and that this Court set aside the damages awarded against the Respondents who were Appellants in that Appeal and awarded costs against the Appellants herein.
The Respondents further argued that Appeal No. CA/L/31/89 tendered as Exhibit D14 was not between the parties to the present appeal; that besides the parties not being the same, the subject matter and causes of action are entirely different because Suit No. ID/802/84 was between Mr. Olukayode Akinsanya Vs. Lawrence Mimaiye Ajeri & Ors; and that assuming, but not conceding, that Exhibits D1 and D14 are between the same parties and the subject matter and causes of action are the same; the Lower Court could still not have been precluded from hearing the suit because there was nowhere in the pleadings of the Appellants as Defendants where res judicata was specifically pleaded. It was submitted that the issue of res judicata must be specifically pleaded and evidence led thereon; that the issues for determination, the parties and the subject matter in Suit No.ID/802/84 and Appeal No: FCA/L/66/79 are different; and that for a party who pleads res judicata to succeed, the parties, issue and subject matter in the previous suit must be the same with the suit in which the plea of res judicata is being raised.
The principles of res judicata and the conditions that must be fulfilled to establish a plea of res judicata are well established and have been restated in a plethora of judicial decisions in this Court and the Supreme Court. See ODUTOLA Vs. ODERINDE & ORS [2004] 12 NWLR (Pt. 888) 574; (2004) LPELR-2258 (SC) Pg.10, Paras. A – D; OKPOSIN & ORS Vs. ASSAM & ORS [2005] 14 NWLR (Pt. 945) 495 (2005) LPELR-2521 (SC) Pg. 10, Paras. C – F and OGBOLOSINGHA & ANOR VS. BAYELSA STATE INDEPENDENT ELECTORAL COMMISSION & ORS (2015) LPELR-24353 (SC) Pg. 27-28, Paras. E – G where the Supreme Court per OGUNBIYI JSC held that:
“…For a plea of estoppel per rem judicatam to succeed, the party relying thereon must establish the following requirements or pre-conditions namely:-
(a) That the parties or their privies are the same in both the previous and the present proceeding,
(b) That the claim or issues in dispute in both actions are the same.
(c) That the res or subject matter of litigation in the two cases is the same
(d) That the decision relied upon to support the plea of estoppel per rem judicatam is valid, subsisting and final.
(e) That the Court that gave the previous decision relied upon to sustain the plea is a Court of competent jurisdiction.
It has also been held severally by this Court that, unless all the above constitutional elements or requirements of the doctrine are fully established, the plea of estoppel per rem judicatam cannot sustain…”
To establish the existence or otherwise of the requirements in proof of res judicata, this Court must examine the facts and records and compare the previous suit pleaded with the present suit. In the instant case, the Appellants referred to Exhibit D1 contained at pages 131 – 148 of the records of appeal which is the judgment of this Court in Appeal No: FCA/L/66/79 which was filed against the decision of the Lower Court in Suit No. ID/3L6/76/C. In the said appeal, the Appellants were listed as “HOSEA OGBERE AND OTHERS”, while the Respondents were “MYLOT OMOKOYA AND OTHERS”.
Meanwhile, the main parties listed in Appeal No: FCA/L/66/79 are same as the parties in the present suit; that is: MALOT OMOKOYA & ORS as the Appellants while HOSEA OGBERE & ORS are the Respondents. The next factor to be considered is whether the claim or issues in the two suits are the same. At page 134 – 136 of the records of appeal, this Court found as follows:
“The Defendants then counter-claimed for:
(a) Declaration that the Defendants are the owners in fee or under Yoruba Native Law and Customs of the piece or parcel of land described on the Plan filed with this Statement of Defense
(b)
(c)
From the above-mentioned averments and evidence adduced at the trial, the following facts have emerged: both the defendants (hereinafter referred to as the appellants) and the plaintiff (herein referred to as the respondents) originally belonged to an Association of Land dealers who were operating along Ebute Ilaje Beach at Bariga…”
The Appellants on the other hand claimed to have been using the Beach exclusively until trouble broke out between the parties on or about April 1976.
Mr J. B. Atunrase also claimed to have bought the land in which the Beach is situate from Oloto Chieftaincy family… and he said that he plotted the land into a lay-out plan out of which he sold plot 42 to the Appellants as per the Deed of Conveyance – Exhibit C…
…The Appellants counter-claimed that by virtue of their purchase of plot 42 from Atunrase’s Lay-out which was said to include the Beach, they were entitled to a declaration of title as owners of the said Beach.”
From the foregoing therefore, it is evident that the Appellants in Appeal No: FCA/L/66/79 who were the Defendants/Counter-Claimants in Suit No. ID/316/76/C claimed ownership of the land in dispute and the Lower Court rejected their claim. This is established by the findings of this Court in Appeal No: FCA/L/66/79 at page 136 where it was stated that:
“After the conclusion of trial, the learned trial Judge first considered the counter-claim of the Appellants and rejected the claim for a grant of declaration of title…”
This Court then found as follows at pages 144 – 145 of the records of appeal:
”With respect to ground 2, it was submitted by learned Counsel for the Appellants, that although they have failed to prove their title to the land, their claim for damages for trespass ought to have succeeded because they have proved that they had a better right to possession…
In reply to this submission, learned Counsel for the Respondents said that it was clear from the evidence that both parties were using Beach No. 4 Ebute Ilaje, Bariga jointly for their sand dealing operations…
It was also contended that although the Appellants claimed to have bought the beach ns Plot 42 of Atunrase Lay-out, which entitled them to ownership and undisturbed possession, the learned trial judge had rejected the claim as unfounded… ”
This Court then concluded as follows at page 146 of the Records of Appeal that:
“…Learned counsel for the Appellants was unable to point to any evidence where it was established that the Appellants were in exclusive possession of the land purportedly bought from Atunrase?This ground of appeal therefore fails.”
In the instant suit, the Lower Court in its judgment contained at pages 444 – 461 of the records of appeal found as follows at page 456:
“I find as a fact and I also hold upon the preponderance of the evidence before the Court and in the balance of probability that the land in dispute as claimed by the Plaintiff as Plot No. 42, Atunrase Layout, Ebute Ilaje, Bariga. The 2nd issue for determination is the party that owns the land in dispute. I refer to the pleadings of both parties and hold that issue was joined by the parties on the ownership of the land in dispute. I also refer to the Court of Appeal decision in Suit No.FCA/L/66/79 Exhibit D7 and hold that the Court of Appeal did not make a specific finding on the land in dispute.”
From the foregoing, I am of the view that the subject matters of Suit No. ID/316/76/C which gave rise to Appeal No: FCA/L/66/79 is Plot No. 42, Atunrase Layout, Ebute Ilaje, Bariga which is the same as the subject matter of the instant suit. The issue of ownership of the property in dispute, which is Plot No. 42, Atunrase Layout, Ebute Ilaje, and Bariga was also an issue in Suit No. ID/316/76/C as raised by the Respondents who as Defendants in that suit counter-claimed for declaration as owners of the disputed land, a claim which was rejected by the trial Court and on appeal in Appeal No:FCA/L/66/79, this Court came to the conclusion that the appeal against the decision of the Lower Court on the Respondent’s Counter-Claim in Suit No. ID/316/76/C failed.
The foregoing decisions of both the Lower Court and this Court on the status of the present Respondents as the purported owners of Plot No. 42, Atunrase Layout, Ebute Ilaje, Bariga remains valid until decided upon by the Apex Court if/when appealed. It is my view that the Lower Court cannot entertain the Respondents’ (Plaintiffs) claim for “A declaration that the Plaintiffs are entitled to statutory right of occupancy over all that piece or parcel of land…, which is better known as Plot No. 42 Atunrase allotment,..” and the Lower Court cannot assume jurisdiction to determine the party that owns the land in dispute when the same Court in its earlier decision had determined that the land in dispute cannot be declared as that of the Respondents and this Court affirmed the Lower Court’s decision.
The Lower Court in the instant suit totally misconstrued its earlier decision in Suit No. ID/316/76/C which was affirmed by this Court in Appeal No: FCA/L/66/79) especially as it relates to the Counter-Claim of the Respondents herein, when the Court concluded that: “I also refer to the Court of Appeal decision in Suit No. FCA/L/66/79 Exhibit D1 and hold that the Court of Appeal did not make a specific finding on the land in dispute.”
On the facts and the evidence before the Lower Court, especially Exhibit D1, the Lower Court ought to have found that the issue of ownership of Plot No. 42, Atunrase Layout, Ebute Ilaje, Bariga had been litigated upon previously and decided between the same parties in Suit No. ID/316/76/C and this Court dismissed the appeal against the decision in Appeal No: FCA/L/66/79. This therefore clearly means, the subject matter having been litigated upon by the same parties, the Respondents are barred by the principle of res judicata from instituting an action between the same parties seeking to determine their rights as owners of the same property.
The proper thing for the Respondents to do in the circumstance would have been to lodge an appeal at the Supreme Court against the decision of the Lower Court in Suit No.ID/316/76/C on their Counter-Claim, which this Court affirmed in Appeal No: FCA/L/66/79. The Lower Court, by assuming jurisdiction to hear and determine an issue which had been previously determined by it and further determined by the Court of appeal has wrongly and unwittingly put itself in a position of sitting on appeal over the decision of a Superior Court, an act which it has no jurisdictional competence to perform. I think the Lower Court clearly set out to embark on a collision course with the Court of appeal.
At this juncture, it will be proper to refuse to be blank, sluggish and indolent. I am tempted to ask, is it truly correct that the learned trial Judge did not set out to smash the Court of appeal? He said as follows:
“I also refer to the Court of Appeal decision in Suit No.FCA/L/66/79 Exhibit D1 and hold that the Court of Appeal did not make a specific finding on the land in dispute”. The facts have clearly shown otherwise, it is without doubt that the learned trial Judge knew that the facts established res judicata. It is not necessary to repeat what I stated earlier in this judgment with respect to the similarity of the subject matter and parties, it is established that the Lower Court ought to have conducted slight meticulous findings disclosing otherwise from its position. I think it is proper at this stage to state clearly that Lower Courts need to respect the hierarchy of Courts and refrain from engaging in deliberate and inexcusable judicial disrespect.
Having said little on judicial impertinence, let me refer to NTUKS Vs. NPA [2007] 13 NWLR (Pt. 1050) 392; (2007) LPELR-2076 (SC) Pg. 13, Paras G – D; A.G. NASARAWA STATE Vs. A.G. PLATEAU STATE (2012) LPELR-9730 (SC) Pg. 51-52, Para’s. G ? E and in SYLVA Vs. INEC & ORS (2015) LPELR-24447 (SC) Pg.49-50, Paras. D – E, where the Supreme Court per GALADIMA JSC held that: “The law is that where a matter has been decided with finality by Court of competent jurisdiction between the same parties and for their privies, there can be no further litigation upon the same subject matter by the same parties or privies. There should be a bar to relitigate on the already decided issues and matters.” In the same case, at Pg.45, Paras. C – D, the Supreme Court per NGWUTA JSC held that “The doctrine of Res judicata applies not only against the appellant but also against the jurisdiction of the Court itself in the sense that the appellant is stopped per rem judicatam from bringing the same case before the Court and the jurisdiction of the Court is ousted
From the infantry of facts set herein, it is apparent the Lower Court failed in its duty to consider the materials before it with dispassion, so doing led the Court into taking wrong decision which is perverse and in contrast with the evidence before the Court. The Lower Court wrongly assumed jurisdiction, in obvious disregard to the established principles of law on res-judicata.
From all I said therefore, this appeal is bound to succeed on this ground, the decision of the Lower Court having been delivered without the requisite jurisdictional competence is a complete nullity. The decision of the Lower Court delivered on the 16th day of April, 2004 by Adeyinka J., in Suit No:ID/452/89 is hereby set aside.
Parties in this appeal shall bear their respective costs.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother TIJJANI ABUBAKAR J.C.A., just delivered with which I agree and adopt as mine. I have nothing more to add.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I had the privilege of reading in draft the leading judgment of my learned brother, TIJJANI ABUBAKAR, JCA with which I agree.
I agree that the appeal is meritorious and hereby allowed for the reason that the learned trial judge reached a perverse decision and as a result wrongly entertained the suit was apparently re judicata. To this extent, the judgment of the Lower Court, coram ADEYINKA, J., of the Lagos State High Court in Suit No.ID/452/89 which was delivered on the 16th April, 2004 is hereby set aside.
Parties to bear their own costs.
Appearances:
J. A. AwolajeFor Appellant(s)
Kingsley Izimah with him, Rilwan O. Atiku and Adetola BolaFor Respondent(s)
