MR. KOLA ADEDEJI & ANOR v. OTUNBA SULTAN ABISOYE SEGUN ADEBAYO & ORS
(2012)LCN/5347(CA)
In The Court of Appeal of Nigeria
On Thursday, the 3rd day of May, 2012
CA/I/195/06
RATIO
“In BLACKS LAW DICTIONARY 6TH EDITION At PAGE 1200 the term “PRIVY” was defined as follows – A person who is in privity with another. One who is a partaker or has any part or interest in any action matter or thing. In a connection with the doctrine of Res Judicata, one who, after the commencement of the action has acquired an interest in the subject matter affected by the judgment through or under one of the parties, as by inheritance, succession, purchase or assignment.” See also CHIEF OYELAKIN BALOGUN V. PASTOR MOSES AFOLAYAN (2005) ALL FWLR PART 85 page 331 at 334 where the term “PRIVY” is classified or categorized as follows – “(a) Privies in blood as an heir or ancestor; (b) Privies in representation such as an Executor, a testator or an Administrator and an interested Person; and (c) Privies in estate such as grantor and a grantee or a lessor and lessee.” Per ALAGOA, J.C.A
EVIDENCE: RES JUDICATA: CONDITIONS FOR HAVING A SUCCESSFUL PLEA OF RES JUDICATA
“There is a plethora of case law to the effect that for the sustenance of a plea of Res Judicata the following conditions must be satisfied: (a) The parties (or their privies as the case may be) must be the same in the present as well as the previous case. (b) The issues and subject matter in the present as well as the previous suits must be the same. (c) The adjudication in the previous case must have been given by a Court of competent jurisdiction. (d) The previous decision must have finally decided the issues between the parties. See generally the following cases -SALAMI AFOLABI & ORS V. GOVERNOR OF OSUN STATE & ORS (2003) FWLR PART 175, 411 AT 417; MARTIN UDECHUKWU & ORS V. SUNDAY EZEMUO (2009) 14 NWLR PART 1162, 525 AT 532; INTERCITY BANK PLC V. FAISAL TRAVEL AGENCY LTD. (2006) 4 NWLR (PT.971) 504; EKENNIA V. NKPAKERE (1997) 5 SCNJ 70 AT 83; OKE V. ATOLOYE (NO.2) (1986) 1 NWLR (PART 15) 241; NTUKS & ORS V. NIGERIA PORTS AUTHORITY (2007) 10 SC 127 AT 145; UMMI ABUBAKAR V. FEDERAL MORTGAGE BANK LTD. & 3 ORS (2003) FWLR PART 151, 1918 at 1927; FADIORA V. GBADEBO (1978) 3 SC 219. The burden of proof of these conditions rests on the Applicant.” Per ALAGOA, J.C.A
JUSTICES:
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
1. MR. KOLA ADEDEJI
2. MRS. SHADE ADEDEJI – Appellant(s)
AND
1. OTUNBA SULTAN ABISOYE SEGUN ADEBAYO
(Carrying on business as GBEMASEG VENTURES, substituted for CHIEF GBADAMOSI ENIOLA
By ORDER OF COURT DATED 6th March, 2003.)
2. MR. OLAYIWOLA
3. BISI BOOKS NIGERIA LIMITED – Respondent(s)
STANLEY SHENKO ALAGOA, JCA (Delivering the Leading Judgment): In the High court of Justice Ibadan, Oyo state of Nigeria the present Appellants as plaintiffs took out a writ of summons against the present Respondents as Defendants jointly and severally claiming as follows:-
(a) N500,000.00 (Five Hundred Thousand Naira) special and general damages for trespass being presently committed by the Defendants on the Plaintiff’s landed property lying and being at Mokola, Oyo Road, Ibadan covered by Deed of Assignment registered as No. 51 at page 51 in volume 3368 of the Lands Registry in the office at Ibadan.
(b) Perpetual injunction restraining the Defendants by themselves, their servant, agents and privies from further trespass on the land in dispute.
Pleadings were filed and exchanged by both parties.
Hearing which commenced with S. I. Yerima J. continued before M. O. Bolaji Yusuff J. By a motion on Notice dated the 21st October 2005, the 3rd Defendant as Applicant sought for the following:-
AN ORDER DISMISSING this Suit as this Honourable Court lacks jurisdiction to entertain same.
AND FOR SUCH FURTHER ORDER OR ORDERS as this Honourable Court may deem fit to make in the circumstances.
TAKE FURTHER NOTICE that the ground upon which this application is brought is that the subject matter of this Suit had been adjudicated upon by this Honourable Court in Suit No. I/609/84 and judgment delivered on the 10th day of February 1989.
3rd Defendant/Applicant went on to depose in the supporting affidavit to this motion that the Plaintiffs in the said Suit No. I/609/84 did not appeal against the judgment of this Honourable Court till date and that it would be in the interest of justice to grant the application.
Germane to this application is paragraph a(iv) of the affidavit in support to this motion which states as follows –
“Attached and marked Exhibits C1, C2, C3, C4 and C5 are copies of the writ of summons, Amended Statement of Claim, Statement of Defence of the 2nd and 3rd Defendants, Statement of Defence of the 4th Defendant and judgment in the said Suit respectively.”
Suffice it to say at this juncture that I have searched through the records and I find as follows – Exhibit C1 is at page 196 of the Record; Exhibit C2 is at pages 197-199 of the Record of Appeal; Exhibit C3 is at pages 200-201 of the Records; Exhibit C4 is at page 202 of the Record while Exhibit C5 which is the judgment of the Court in Suit No. I/609/84 delivered on the 10th February 1989 by Lekan Lajide J. is at pages 203-213 of the Record of Appeal. All the documents referred to i.e. C1-C5 are certified true copies.
The Appellants as Respondents deposed to a counter-affidavit at page 214 of the Record of Appeal, Some of the salient paragraphs of the Counter-affidavit are as follows –
4. That I am informed by Counsel to the Plaintiffs J.O.A. Ajakaiye Esq. and I verily believe that the title given to this application by the Defendant/Applicant is wrong, misleading, mischievous and fraudulent as the name of the 1st Defendant is missing from the case thereby making it a different case from the original case in Court.
5. That the name of the 1st Defendant has never been removed from the case by any court order, Vide ruling of court dated 5th June 2003 attached marked Exhibit “A”.
6. That I am informed by J. O. A. Ajakaiye, Esq. Counsel to the Plaintiffs and I verily believed that with reference to paragraph 4 of the affidavit in support of the motion that the claims in this suit referred to is different from the claims in this suit that the parties are not the same, that the subject matter are not exactly the same, as the one now claimed by the 3rd Defendant that the title of the Applicant to the property had been declared null and void by the said judgment.
7. That the application is incompetent and it deserves to be struck out.
8. That the Applicant has no locus in that Applicant has sold the land to the 1st Defendant a fact very well known to the Applicant’s Solicitors by Notice they put up on the premises photograph of which Notice the Plaintiff took before the institution of this Suit, Vide photograph attached marked Exhibit “B”.
What is worthy of note at this stage is that the application was strenuously argued by both parties and the learned trial Judge in his considered ruling granted the application and dismissed the case. It is this ruling delivered on the 15th of December 2005 in Suit No. I/175/02 that is the subject matter of this appeal. The Notice of appeal is contained at pages 241-243 of the Record and only the six grounds of Appeal are reproduced hereunder shorn of Particulars.
GROUNDS OF APPEAL
1. The learned trial judge erred in law by wrongly interpreting the judgment in suit No.I/609/84 Obadeyi & Ors v. Administrator General of Oyo State & ors by holding that it operated as estoppels per rem judicatam between the 3rd Defendant and Obadeyi family vis-a-vis the Plaintiffs when on the face of the judgment which dismissed the claims on ground that wrong reliefs were claimed, which in effect meant that the Plaintiffs therein could claim proper reliefs thereafter.
2. The learned trial judge erred in law in holding that the Plaintiffs’ claims are caught by the plea of estoppel per rem judicatam in that the parties, the claims and the subject matter, in this Suit and Suit No. I/609/84 are the same, when it is clear, by the pleadings and the title of the two Suits, they are not the same.
3. The learned trial judge erred in law in proceedings to hear the application when the title of the application is defective not being well constituted in that it differs from the title of the case before the Court.
4. The learned trial judge erred in law, when by her ruling she had prematurely permanently precluded the Plaintiffs from leading evidence to establish the case they brought against the 1st and 2nd Defendants.
5. The learned trial judge erred in law by family to appreciate that all that the Applicant has been able to make out by its application is question of issue estoppel between it and the Plaintiffs, which can only be established and decided during the trial and not in an interlocutory application, there being many parties to the case and not through estoppel per rem judicatam as decided by her ruling.
RELIEF SOUGHT
AN ORDER setting aside the Ruling and dismissing the Applicant’s motion in its entirety.
This appeal came up for hearing on the 7th February 2012. 1st Appellant was present, J. O. A. Ajakaiye appeared with B.A. Iyiola for the Appellants, Damilola Onabanjo (Miss) appeared as Counsel for the 2nd Respondent while Abiola Olagunju appeared with Adepeju Agboola (Miss) for the 3rd Respondent, The 1st Respondent was absent from Court but there was proof that he was served with the hearing Notice for the 7th February 2012 on the 15th July 2011 by substituted service to wit pasting. No brief of Argument had been filed by the 1st Respondent but Counsel to the Appellant J.O.A. Ajakaiye was quick to point out that a motion on Notice dated the 27th June 2008 and filed same day to have this appeal heard on the briefs of Argument of the Appellant and the 3rd Respondent only for failure of the 1st and 2nd Respondents to file their Briefs of Argument had earlier been granted by this Court on the 7th October 2009. This Court quickly searched through its records and discovered this information to be correct. It is important to point out that despite the grant of the Appellant’s motion for this Appeal to be heard on the basis of the Appellant’s and the 3rd Respondent alone, the Court in its quest to do substantial justice and not shutting out any party desirous of presenting his defence entertained the 2nd Respondent’s motion dated the 6th October 2008 and filed on the 8th October 2008 for extension of time to file the 2nd Respondent’s Brief of Argument and to deem the Brief already filed as properly filed and served on all the other parties. This motion was granted and the 2nd Respondent’s Brief of Argument deemed to be properly filed and served on all the other parties to this Suit on the 7th October 2009. The stage having now been properly set for the hearing of the appeal, the appeal now proceeded to be heard by this Court, J.O.A. Ajakaiye adopted and relied on the Appellant’s Brief of Argument dated the 16th October 2006 and filed on the 17th October 2006 wherein he distilled the following two issues for the determination of this Court viz –
(1) Whether on the proper and judicious consideration of the 3rd Defendant’s application and the counter-affidavit to the motion, the learned trial Judge was justified in holding that the plea of estoppel per rem judicatem had been established. (Grounds 1, 2, 5, 6)
(2 ) Whether the learned trial Judge was  right in adjudicating on the 3rd Defendant’s application when it does not reflect the proper parties to the case. (Grounds 3, 4)
These Issues are contained in paragraphs 3.01 and 3.02 at page 7 of the Appellants’ Brief of Argument.
Counsel for the 2nd Respondent Miss Damilola Onabanjo adopted and relied on the 2nd Respondent’s Brief of Argument dated the 6th October 2008, filed on the 8th October 2008 and deemed properly filed on the 7th October 2009 wherein the following two issues were formulated in paragraphs 3.01 at page 2 of the 2nd Respondent’s Brief of Argument viz –
(a) whether the High court was right in dismissing the Appellants claim.
(b) whether the High court was right in entertaining the 3rd Respondent’s application.
Counsel for the 3rd Respondent Abiola Olagunju adopted and relied on the 3rd Respondent’s Brief of Argument dated 14th April 2008 and filed on the 15th April 2008, pursuant to an order of Court made on the 31st March 2008 wherein the 3rd Respondent was given 15 days to file and serve its Brief of Argument.
Counsel adopted the issues formulated by the Appellants and urged this Court to dismiss the appeal.
I consider the issues formulated by the Appellants as proper and adequate in the hearing and determination of this appeal. I however feel that the two issues so formulated should have been made to swop places, as considering Issue No. 1 before Issue 2 is akin to putting the cart before the horse. I shall therefore consider Issue 2 as contained in the Appellants’ Brief of Argument first. That issue has to do with whether the learned trial Judge was right in adjudicating on the 3rd Defendant’s application when it does not reflect the proper parties to the case. The only argument of note put up by the Appellants that is germane to this issue is that the 3rd Defendant did not make the 1st Defendant a part to his motion and there being no service of papers on the 1st Defendant, he (1st Defendant) had no opportunity of being heard on the application. The 3rd Respondent has submitted that leaving out the name of the 1st Respondent is a mere irregularity which has not occasioned a miscarriage of justice and should not prevent the Court from doing substantial justice once it is capable of being remedied.
The following cases were relied upon NNPC v. FEMFA OIL LTD (2003) FWLR (PT.155) PAGE 794 AT 796; OPAWOLE V. TUNBI (2004) ALL FWLR PART 234 PAGE 1841 AT 1847; MODIBO V. HARUNA 92004) ALL FWLR PART 238 PAGE 740 AT 744.
The learned trial Judge raised the issue of the omission of the 1st Defendant’s name on the heading of the motion paper and whether it rendered the application incompetent as one of the two issues for consideration in the determination of the application of the 3rd Defendant/Applicant. See page 232 of the Record of Appeal. The learned trial Judge said that it is obvious on the motion paper of the 3rd Defendant/Applicant that the name of the 1st Respondent Otunba Sultan Abisoye Segun Adebayo (Carrying on business as Gbemaseg Venture) is omitted by the Applicant on the heading of its motion paper. Otunba Sultan Abisoye Segun Adebayo, the learned trial Judge observed, was substituted for Chief Gbadamosi Eniola by a Court order.
The learned trial Judge then noted that since the omission of the 1st Respondent’s name from the Applicant’s motion was said by the Applicant’s Counsel to be a mistake which had even been corrected by the Respondent in the counter-affidavit, the Court had a discretion to treat the omission as an irregularity which will not nullify the application by virtue of Order 2 Rule 1 of the High Court Civil procedure Rules which discretion the Court granted in favour of hearing the application.
Two questions come to my mind in the determination of this issue. Firstly does the counter-affidavit of the Defendant/Respondent contain the name of the 1st Respondent?
Secondly does Order 2 Rule 1 of the High Court Civil Procedure Rules of Oyo State permit the treatment of the omission of this nature as an irregularity which will not nullify the application?
The Counter-affidavit of the Defendant/Respondent is contained at pages 214-216 of the Record of Appeal, Therein the name of the 1st Defendant/Respondent is clearly spelt out in block capitals as OTUNBA SULTAN ABISOYE SEGUN ADEBAYO (CARRYNG ON BUSINESS AS GBEMASEG VENTURE SUBSTITUTED FOR CHIEF GBADAMOSI ENIOLA BY ORDER OF COURT DATED 6TH MARCH 2003). The first question has been answered in the affirmative.
With respect to the second question Order 2 Rule 1 of the High Court Civil Procedure Rules of Oyo State provides as follows “Where in beginning or purporting to begin any proceeding or at any stage in the course of or in the connection with any proceedings there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein.”
The effect of Order 2 Rule 1 is stated in Order 2 Rule 2 of the Rules as follows –
“The Court may on the ground that there has been such a failure as mentioned in paragraph (1) and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any steps taken in those proceedings or any document, judgment or order therein, or it may exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.”
The Defendant/Respondent having stated the name of the 1st Respondent correctly in his counter-affidavit to the application cannot claim to have been misled. There is also no doubt that Order 2 Rule 1 of the Rules also covers a situation like this now under consideration where the 1st Defendant/Respondent’s name was omitted, Order 2 Rule 2 of the Rules clearly gives the trial Judge a discretion which she no doubt exercised aright. Issue 2 in the Appellants’ Brief of Argument must therefore be and is accordingly resolved in favour of the Respondents in this appeal.
We shall now proceed to consider Issue 1 in the Appellants’ Brief of Argument –
“Whether on the proper and judicious consideration of the 3rd Defendant’s application and the counter-affidavit to the motion, the learned trial Judge was justified in holding that the plea of Estoppel per rem judicatem had been established.”
Appellants have submitted in the Brief of Argument that to sustain a plea of Res judicata, the Party pleading must satisfy the following conditions to wit –
(i) The parties (or their privies as the case may be) are the same in the present case as in the previous case.
(ii) The Issue and the subject matter are the same in the previous Suit as in the present Suit.
(iii) That the adjudication in the previous case must have been given by a Court of competent jurisdiction.
(iv) That the previous decision must have finally decided the issues between the parties.
Failure to satisfy any of these conditions means failure of the plea in its entirety. The case of ODUTOLA V. ODERINDE (2004) 118 LRCN 4072 at 4082 and 4083 was relied upon.
Appellants’ Counsel submitted that the Applicant did not satisfy any of these conditions. Counsel submitted that the only issue present in this Suit issue estoppel raised by the Plaintiffs against the 3rd Defendant by paragraphs 8 and 9 of the amended statement of claim was not given due consideration to by the learned trial Judge in her ruling. Counsel went on further to submit that what constitutes estoppel per rem iudicatem and issue estoppel has been fully considered in the following cases – ODJEVWEDGE V. ECHANOKPE (1987) 3 SC 47 AT 67 -71, 87 AND 100-102; FADIORA & ANOR V. GBADEBO & ANOR (1978) 3 SC 219 at 228-229, 238; OKUKUJE V. AKWIDO (2001) 83 LRCN 225 at 256; 277-279; IKENI V. EFAMO Appellants’ Counsel submitted that the learned trial Judge failed to appreciate that Suit No. I/609/84 had to do with Landlord and Tenant relationship while the present case now being considered deals with dispute over title to land. Counsel therefore submitted that Estoppel per rem judicatem does not apply and urged this Court to allow the appeal.
The 2nd Respondent in his Brief of Argument submitted that the learned trial Judge averted her mind to the fact that the land in dispute in Suit No. I/609/84 is also that in dispute in the present Suit, and also that the parties and the reliefs are also the same and rightly determined the application by dismissing the Appellants’ case. Counsel also submitted that all the considerations to sustain the plea of Estoppel per rem iudicatem against the Appellants are present i.e. the parties, the issues and the reliefs are the same in respect of Suit No.I/609/84 and the
present Suit which is now on appeal. Reliance was placed on the following authorities EKENNIA V. NKPAKERE (1997) 5 SCNJ page 70 at page 83; OKONKWO V. OKEKE (2002) 8 SCM 49 at 64-65; DZUNGWE V. GBISHE (1985)Â Â 2 NWLR PART 8 Page 528 at Page 538. Counsel submitted that the plea of issue estoppel will not avail the Appellants. Counsel further submitted that the case in Suit No. I/609/84 was not a landlord and tenant matter but in respect of the validity of the title of the 3rd Defendant/Respondent to the land in dispute. He went on to further submit that by their pleadings the Appellants had not prayed for a claim for forfeiture and that being privies and/or successors in title of the Obadeyi family the Appellants are bound by the decision in Suit No. I/609/84. Reliance was placed on BALOGUN V. AFOLAYAN (2002) FWLR PART 85, page 331 at 349. He urged the Court to hold that the case of the Appellants is caught by the doctrine of estoppel per rem judicatem and to dismiss the appeal.
The 3rd Respondent for its part submitted that it is a fact that there was a previous case suit No. I/609/84: J.O. OBADEYI & ORS (suing as next of kin and Beneficiaries of the Estate of J.A.O. Obadeyi) V. THE ADMINISTRATOR-GENERAL OF Oyo STATE (2) CHRTIANAH OKIN (3) DR. KAYODE SEGUN and (4) BISI BOOKS NIGERIA LTD. who are the 3rd Respondent in this case presently on appeal and that the claims of the Plaintiffs in the said suit No. I/609/84 were against the Defendants jointly and severally as follows:
(a) Declaration that the Administrator-General of Oyo state of Nigeria was in breach of trust of the Estate of J.O Obadeyi when by a Deed of Lease dated the 25th April 1977 and registered as No. 48 in page 48 in Volume 1973 of Lands Registry in the office at Ibadan, the Administrator-General purported to lease the vacant landed property at Oremeji for 99 years to Dr. Kayode Segun and Christianah Adunni Okin without the consent of the beneficiaries at a time when the beneficiaries were calling for the release of the property to them.
(b) Declaration that the said lease is void and voidable at the instance of the beneficiaries.
(c) An order setting aside the said lease or any other sublease made by and between the Defendants.
(d) Perpetual injunction restraining the Defendants, their agents’ servants, privies and assignees from carrying on any development on the land.
The present Suit I/715/2002 according to 3rd Respondent’s Counsel in its Brief of Argument in paragraph 4.03 at page 6 of the 3rd Respondent’s Brief of Argument, was instituted by Mr. Kola Adedeji and Mrs. Sade Adedeji against Mr. Otunba Sultan Abisoye Segun Adebayo, Mr. Olayiwola and Bisi Books Nigeria Limited and their claims jointly and severally against the Defendants were –
(a) N500,000,00 (Five Hundred Thousand Naira only) Special and general damages for trespass being presently committed by the Defendants on the Plaintiffs landed Property lying and being at Mokola, Oyo Road, Ibadan covered by Deed of Assignment registered as No. 51 at page 51 in volume 3368 of the Lands Registry in the office at Ibadan.
(b) Perpetual injunction restraining the Defendants by themselves, their servants, agents and privies from further trespass on the land in dispute.
3rd Respondent’s Counsel made reference to the case of SALAMI AFOLABI & ORS V. GOVERNOR OF OSUN STATE & 3 ORS (2003) FWLR PART 175 at 411 particularly at page 417 paragraphs E-G where the Supreme Court was said to have held that to sustain the plea of Res Judicata the following conditions must be satisfied:
“(a) That the parties (or the privies as the case may be) are the same in the present case as in the previous case.
(b) That the issue and subject matter are the same in the previous suit as in the present suit; (the res) in contention must be the same.
(c) That the adjudication in the previous case must have been given by a court of competent jurisdiction ; and
(d) That the previous decision must have finally decided the issues between the parties.”
Other cases relied upon by the 3rd Respondent in support of this principle are as follows -S.O. NTUKS & 9 ORS v. NIGERIAN PORTS AUTHORITY (2007) 10 SCM 127 at 125; UMMI ZAINAB ABUBAKAR v. FEDERAL MORTGAGE BANK LTD. & 3 ORS (2003) FWLR PART 151, PAGE 1918 at 1927. 3rd Respondent Counsel further submitted that going by the records before the Court, certain facts were admitted by the Appellants even in their Brief of Argument namely:
(a) That the Appellants derived their title on the land which is the subject matter (sic) No. I/609/84;
(b) That the 3rd Respondent in this appeal was also the 4th Defendant in Suit (sic) No. I/609/84;
(c) The subject matter in the two Suits was and still (is) a parcel of land situate at Mokola Oremeji, Ibadan covered by (1) a Deed of Conveyance dated 26th April 1961 and registered as No. 26 at page 26 in volume 458 (2) Deed of lease dated 25th April 1977 and registered as No. 48 at Page 48 in volume 1973 (3) Deed of sublease dated 21st June 1984 and registered as No. 37 at page 37 in volume 2547 and (4) Deed of Assignment dated 19th September 2001 and registered as No. 51 at page 51 in volume 3368 respectively.
3rd Respondent’s Counsel also submitted that the Appellants’ Solicitor’s contention though erroneously was that the 3rd Defendant had assigned its interest in respect of the land to Otunba Sultan Abisoye Segun Adebayo and assuming without conceding that that was the position, it automatically qualifies the said Otunba Sultan Abisoye Segun Adebayo as a privy of the 3rd Respondent. These facts, Counsel submitted, were admitted by the Appellants in paragraph 4.01(a)-(c), at pages 7 and B of the Appellants’ Brief of Argument. It is trite law Counsel submitted, that facts admitted need not be proved. Counsel placed reliance on section 75 of the Evidence Act and to the following cases NIGERIAN ADVERTISING SERVICES LTD. & ANOR V. UNTED BANK FOR AFRICA & ANOR 92005) ALL FWLR PART 284, PAGE 275 AT 285; CHRISTIAN NWARATA V. CHIDI EGBOKA (2006) ALL FWLR PART 338, 795.
For a definition of the word “Privy” Counsel referred to BLACKS LAW DICTIONARY, 6TH EDITION PAGE 1200 and to the case of CHIEF OYELAKIN BALOGUN V. PASTOR MOSES AFOLAYAN (2005) ALL FWLR PART 85, PAGE 331 AT 334 where “A privy” is defined as any person having a legal interest or privity in any action, proceeding or property. Privity could therefore be classified as follows:-
“(a) Privies in blood such as an heir or ancestor;
(b) Privies in representation such as an Executor, a Testator or an Administrator and an interested Person; and
(c) Privies in estate such as a grantor and a grantee or a lessor and a lessee.”
3rd Respondent’s Counsel further submitted that it is worthy of note that while the Appellants acquired their supposed interest in the land after the commencement and delivery of judgment in Suit No. I/609/84, having purportedly bought same in 2001, the 3rd Respondent acquired his own interest before the commencement of Suit No. I/609/84 as he was the 4th Defendant in the Suit. Counsel referred to pages 196-202 of the Record of Appeal. It is the submission of the 3rd Respondent that contrary to the argument in paragraph 4.01(a) on page 7 of the Appellants’ Brief of Argument, the parties in Suit No.I/609/84 and I/715/2002 are essentially and materially one and the same.
According to Counsel the term parties includes not only those named in the Suit or in the record of proceedings but also those who have direct interest in the subject matter of the dispute and had an opportunity to attend the proceedings to join as a party in the Suit. Reliance was placed on BALOGUN V. AFOLAYAN (supra) at page 349. Counsel therefore urged this Court to uphold the finding of the lower court that the parties are the same with that of Suit No. I/609/84
With respect to the issues and subject matter in Suit Nos. I/609/84 and I/715/2002, counsel for the 3rd Respondent submitted that they are the same contrary to the argument in paragraph 4.01(b) at pages 7 and B of the Appellants’ Brief of Argument. It is, he said, only choice of words used by the Appellants that are slightly different. The claims in Suit No. I/609/84 according to Counsel are:-
(a) Declaration that the Administrator- General of Oyo State was in breach of trust of the Estate of J.A.O. Obadeyi when by a Deed of Lease dated 25th April 1977 and registered as No. 48 at page 48 in volume 1973 of the Lands Registry in the office at Ibadan, the Administrator-General purported to lease the vacant landed property at Oremeji for 99 years to Mr. Kayode Segun and Christianah Adunni Okin without the consent of the beneficiaries at a time when the beneficiaries were calling for
the release of the property to them.
(b) Declaration that the said lease is void or voidable at the instance of the beneficiaries.
(c) An order setting aside the said lease or any other sublease made by and between the Defendants.
While the claims in Suit No. I/715/2002 are:-
(a) N500,000.00 (Five hundred thousand Naira only) special and General Damages for trespass being presently committed by the Defendants on the Plaintiff’s landed property lying and being at Mokola, Oyo road, Ibadan covered by Deed of Assignment registered as No.51 at page 51 of volume 3368 of the Lands Registry in the office at Ibadan.
(b) Perpetual injunction restraining the Defendants by themselves, their servants, agents and privies from further trespass on the land in dispute.
3rd Respondent submitted that the contention of the Appellants that the issue in Suit No. I/715/2002 relates to title to land while I/609/84 is one between Landlord and Tenant is not correct. Counsel further submitted that the Appellants never denied in the course of hearing of the Suit in the Court below that the subject matter in dispute in Suit Nos. T1609184 and I/715/2002 was with respect to the same land. Counsel submitted that the judgment in Suit No. I/609/84 is conclusive proof of title of the 3rd Respondent as against the Appellants in suit No. I/715/2002. Counsel finally submitted that the learned trial Judge came to the right conclusion that the plea of Estoppel per rem judicatem had been established.
There is a plethora of case law to the effect that for the sustenance of a plea of Res Judicata the following conditions must be satisfied:
(a) The parties (or their privies as the case may be) must be the same in the present as well as the previous case.
(b) The issues and subject matter in the present as well as the previous suits must be the same.
(c) The adjudication in the previous case must have been given by a Court of competent jurisdiction.
(d) The previous decision must have finally decided the issues between the parties.
See generally the following cases -SALAMI AFOLABI & ORS V. GOVERNOR OF OSUN STATE & ORS (2003) FWLR PART 175, 411 AT 417; MARTIN UDECHUKWU & ORS V. SUNDAY EZEMUO (2009) 14 NWLR PART 1162, 525 AT 532; INTERCITY BANK PLC V. FAISAL TRAVEL AGENCY LTD. (2006) 4 NWLR (PT.971) 504; EKENNIA V. NKPAKERE (1997) 5 SCNJ 70 AT 83; OKE V. ATOLOYE (NO.2) (1986) 1 NWLR (PART 15) 241; NTUKS & ORS V. NIGERIA PORTS AUTHORITY (2007) 10 SC 127 AT 145; UMMI ABUBAKAR V. FEDERAL MORTGAGE BANK LTD. & 3 ORS (2003) FWLR PART 151, 1918 at 1927; FADIORA V. GBADEBO (1978) 3 SC 219. The burden of proof of these conditions rests on the Applicant. How well have these conditions been satisfied? The contention of the 3rd Respondent as Applicant to the motion for dismissal in the court below which motion is dated the 21st October 2005 at page 186 of the Record of Appeal was that the subject matter of this suit (No.I/715/2002) had been adjudicated upon in suit No. I/609/84 and judgment delivered on the 10th February 1989. The following documents were attached to the 3rd Respondent’s affidavit in support of his motion for dismissal in the court below –
(i) copy of survey Plan of a piece of land lying, situate and being at Mokola, Oyo Road Ibadan -Exhibit Exhibit “A”.(ii) Copy of Deed of sublease dated 21st June 1984 and registered as 37/37/2547 at the Lands Registry Ibadan – Exhibit “B”‘
(iii) Copy of the writ of summons Exhibit “C1”
(iv) Amended Statement of claim Exhibit “C2”.
(v) Statement of Defence of the 2nd & 3rd Defendants – Exhibit “C3”.
(vi) Statement of Defence of the 4th Defendant – Exhibit “C4”.
(vii) Judgment in the said Suit No. I/609/84 Exhibit “C5”.
It is in reliance on these documents that the Respondents contend that the claim and subject matter in this Suit No.I/715/2002 are the same with the claim and subject matter in suit No. I/609/84 reference being made to paragraphs 1,2,3,4, 5, 15 & 20 of the Statement of Claim in this Suit No. I/715/2002 as being the same with paragraphs 1,2,3,5, 11 and 20 in Suit No. I/609/84; that the issue of title which is being raised in this case No. I/715/2002 had earlier been raised in Suit No. I/609/84 and decided upon by the Court; that the issue in this matter No. I/715/2002 is exactly the same as in suit No, I/609/84; that the decision of the Court in Suit No. I/609/84 is a final decision by a court of competent jurisdiction to which there was no appeal; that the land in this suit No. I/715/2002 is one and the same as in suit No. I/609/84. A look at the 3rd Respondent’s statement of Defence dated 28th March 2003 reveals that the issue of estoppels per rem judicatem was well pleaded, I have very carefully and meticulously read through paragraphs 1,2,3,4,5,15 and 20 of the Amended Statement of Claim in Suit No. I/715/2002 which can be found at pages 110- 112 of the Record of Appeal and compared same with paragraphs 1,2,3,5, 11 and 20 of the Amended Statement of Claim in Suit No. I/609/84 at pages 197- 199 of the Record of Appeal and I am left in no doubt whatsoever that the claim and subject matter in Suit No. I/715/2002 are exactly the same as the claim and subject matter in suit No. I/609/84. I find it very necessary at this stage to give a brief rundown of the facts as contained in those paragraphs in Suit Nos, I/715/2002 and I/609/84. In Suit No. I/715/2002 the subject matter is the land in dispute at Oremeji, Mokola, Oyo Road Ibadan which was originally the landed property of JAMES ADEKUNLE OSHUNKAYODE OBADEYI who died on the 28th MAY 1961 and on or about the 27th JUNE 1961 letters of Administration were granted to the ADMINISTRATOR-GENERAL OF WESTERN REGION OF NIGERIA NOW OYO STATE to administer the estate of Obadeyi to which the land in dispute formed part. Following the MISMANAGEMENT of the estate of late Obadeyi by the Administrator-General, proceedings in SUIT NO.I/94/79 were instituted by the next of kin and beneficiaries of the Estate of Obadeyi to secure the release to them of the aforesaid estate. During the administration of Obadeyi estate by the Administrator-General, the property in dispute by virtue of a Deed of lease dated 25th April 1977 and REGISTERED AS NO. 48 AT PAGE 48 IN VOLUME 1974 was leased out to KAYODE SEGUN and CHRISTIANA ADUNNI OKIN for a term of 99 years. Before the said lease the Administrator-General put mechanics, carpenters, traders and various kinds of persons on the land who erected temporary structures on the land for their trades. In Suit No. I/609/84 the Plaintiffs are next of kin and children of JAMES OSHUNKAYODE OBADEYI who died on the 28TH MAY 1961 and the said Plaintiffs are the administrators of the estate of the said James Oshunkayode Obadeyi by virtue of letters of administration granted them by the probate registry High Court of Ibadan on the 11th October 1984 and this Suit is brought for themselves and for the benefit of all the children and beneficiaries of the estate of J.A.O. Obadeyi (Deceased). On or about the 27TH JUNE 1961, letters of administration were granted from the probate registry Ibadan to THE ADMINISTRATOR-GENERAL OF WESTERN REGION OF NIGERIA NOW OYO STATE the 1st Defendant in this Suit. As a result of the refusal and failure of the 1st Defendant to render account and to transfer the estate to the Plaintiffs, an action in SUIT NO. I/94/79 was brought against the 1st Defendant, After the conclusion of the proceedings in SUIT NO. I/94/79, Bamidele Aiku & Co. on behalf of the 2nd and 3rd Defendants sent a photocopy of the LEASE AGREEMENT REGISTERED AS NO. 48 AT PAGE 48 IN VOLUME 1973 of the Lands Registry Ibadan dated 13th January 1982 to the plaintiffs’ Solicitor. The Plaintiffs will contend that the 2nd and 3rd Defendants are in contravention of the covenants contained in the lease registered as NO. 48 AT PAGE 48 IN VOLUME 1973.
(Capitals and underlining are mine to emphasise sameness).
The 3rd Defendant in Suit No. I/715/2002 BISI BOOKS NIGERIA LTD. is the 4th Defendant in Suit No. I/609/84. (See pages 110 and 197 of the Record of Appeal). The learned trial Judge was therefore in my view perfectly correct when she stated in her judgment at page 237 of the Record of Appeal as follows. “From the pleadings in I/609/84 and the pleadings in this case (I/715/2002) the central issue is the lease granted Segun and Okin by the Attorney-General the validity of which has been effectively determined by the Court in I/609/844. There is no doubt that the 3rd Defendant was a part to that case. There is also no doubt that the 3rd Defendant is a privy of Segun and Okin. According to the Plaintiffs, the 3rd Defendant has sold the land to the 1st Defendant in this case. That obviously is an admission that the 1st Defendant is a privy of the 3rd Defendant who in turn is a privy of Segun and Okin…”
In BLACKS LAW DICTIONARY 6TH EDITION At PAGE 1200 the term “PRIVY” was defined as follows –
A person who is in privity with another. One who is a partaker or has any part or interest in any action matter or thing. In a connection with the doctrine of Res Judicata, one who, after the commencement of the action has acquired  an interest in the subject matter affected by the judgment through or under one of the parties, as by inheritance, succession, purchase or assignment.”
See also CHIEF OYELAKIN BALOGUN V. PASTOR MOSES AFOLAYAN (2005) ALL FWLR PART 85 page 331 at 334 where the term “PRIVY” is classified or categorized as follows –
“(a) Privies in blood as an heir or ancestor;
(b) Privies in representation such as an Executor, a testator or an Administrator and an interested Person; and
(c) Privies in estate such as grantor and a grantee or a lessor and lessee.”
From the above presentation there is no iota of doubt that not only is the issue and subject matter in Suit No. I/715/2002 same as that in Suit No. I/609/84, but the parties and privies in the present Suit No. I/715/2002 are the same as in the previous Suit No. I/609/84.
Was the adjudication in the previous Suit No. I/609/84 given by a Court of competent jurisdiction? In paragraph 4(iv) of the affidavit in support of the 3rd Respondent’s motion on Notice for dismissal of this Suit which motion is dated the 21st October 2005 at page 186 of the Record of Appeal, reference was not only made to that judgment i.e. Suit No. I/609/84, a certified true copy of the said judgment was annexed as Exhibit “C5” and the said judgment can be found at page 203 of the Record of Appeal.
The judgment in the said Suit No. I/609/84 was delivered on Friday the 10th February 1989 by Lekan Lajide J. of the High Court of Justice Oyo State of Nigeria a court of competent jurisdiction.
Did the said judgment (Suit No. I/609/84) finally decide the issues between the parties? The Plaintiffs’ claims as endorsed in their writ of summons read as follows:-
“The Plaintiffs jointly and severally as next of kin and representatives of the beneficiaries of the estate of James Adekunle Oshunkayode Obadeyi late of No. 21 Oko- Baba street Ebute-Metta Lagos claim against the Defendants jointly and severally:
(a) Declaration that the Administrator-General of Oyo state was in breach of trust of the estate of J.O. Obadeyi when by a deed of lease dated 25th April 1977 and registered as No. 48 at page 48 in volume 1973 of the lands registry in the office at Ibadan the Administrator-General purported to lease the vacant landed property at Oremeji for 99 years to Mr. Kayode Segun and Christiana Adunni Okin without the consent of the beneficiaries at a time when the beneficiaries were calling for the release of the Property to them.
(b) Declaration that the said lease is void or voidable at the instance of the beneficiaries.
(c) An order setting aside the said lease or any other sublease made by and between the Defendants.”
This is what the learned trial Judge said in concluding his judgment at page 213 of the Record of Appeal-
“Indeed what the Plaintiffs are seeking is inter alia an order to set aside the lease as well as the sublease. This relief as well as the others claimed by them are not available to them. The only one which I conceive they are entitled to is one for forfeiture of the lease which may also lead to the forfeiture of the sub lease but since this is not what they are claiming and since also the condition precedent to its grant has not been fulfilled, I cannot grant it to them. In the result the Plaintiffs’ claims fail and they are therefore dismissed in their entirety.”
(Underlining mine for emphasis).
There is therefore no iota of doubt that the judgment of the learned trial Judge in the previous decision (Suit NO. I/609/84) decided the issues between the parties to finality.
Both issues having been resolved in favour of the Respondents against the Appellants, the Appeal fails and the ruling of the learned trial Judge M. O. Bolaji-Yusuff delivered on the 15th day of December 2005 is hereby affirmed by me.
Parties are however to bear their own costs.
ADZIRA GANA MSHELIA, J.C.A.: I read in draft the lead Judgment of my learned brother, ALAGOA, J.C.A. OFR just delivered. I agree with his reasoning and conclusion reached in dismissing the appeal. I too dismiss the appeal and endorse the consequential orders made in the lead judgment, inclusive of costs.
MODUPE FASANMI, J.C.A.: I have read in advance the draft of the lead judgment just delivered by my learned brother S. S. ALAGOA, J.C.A, (OFR).
I agree entirely with the reasoning and conclusion reached therein.
The appeal fails. For the reasons clearly set out in his judgment, I also dismiss the appeal with the same consequential orders including the order as to costs.
Appearances
J.O.A. Ajakaiye Esq. with B. A. Iyiola Esq. For Appellant
AND
Damilola Onabanjo (Miss) for the 2nd Respondent;
Abiola Olagunju Esq. with Adepeju Agboola (Miss) for the 3rd Respondent. For Respondent
