MRS. TITILOLA AWOSUSI & ORS v. CHIEF LIGALI KAFARU OTABIYI & ORS (2019)

MRS. TITILOLA AWOSUSI & ORS v. CHIEF LIGALI KAFARU OTABIYI & ORS

(2019)LCN/13727(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 31st day of July, 2019

CA/L/438/2014

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria

Between

1. MRS. TITILOLA AWOSUSI
2. MRS. OMOLARA ADEMOSU
3. MR. ABAYOMI WILLOUGHBY
(Executrixes and Executor of the Estate of late Chief R. A Randle for themselves on behalf of the children of late Chief R. A Randle) Appellant(s)

AND

1. CHIEF LIGALI KAFARU OTABIYI
2. PRINCE HAKEEN OSHIUN
3. HON. FATAI GBADEBO ABAYOMI OSHIUN
4. ISIAKA LAMINA AKITI AKINOLE
(for themselves and on behalf of the Akinole Oshiun families of Ogba, Ikeja, Lagos State)
5. GRUPPO INVESTMENT LIMITED
6. REGISTRAR OF TITLES LAGOS STATE
7. ATTORNEY GENERAL AND COMMISSIONER OF JUSTICE LAGOS STATE
8. EXECUTIVE GOVERNOR OF LAGOS STATE Respondent(s)

RATIO

WHETHER OR NOT A PARTY MUST HAVE DIRECT OR LEGAL INTEREST TO BE JOINED AS A PARTY TO AN EXISTING ACTION

It is a trite principle of law that for a party to be joined to an existing action, he must have a direct or legal interest. A person is said to be legally interested if the answers to the question in issue may affect or curtail his rights.
?In ABUBAKAR DUDU MOTORS & ANOR v ABDULKADIR KACHIA (2016) LPELR ? 40228 (CA), the main purpose for joinder of parties was held thus;
?The main reason or purpose for a joinder of a party or parties in a suit is to make that person(s) bound by the results of the suit, and the question to be settled therefore must be question in the action which cannot be effectually and completely settled unless he or they are made party or parties?
per BDLIYA, JCA (PP. 15 ? 16, PARAS. F ?A)
See also; HASSAN v ATANYI (2002) 8 NWLR PT. 770 PG. 587; AZUBUIKE v PEOPLES DEMOCRACTIC PARTY & ORS (2014) LPELR ? 22258 (SC); PANALPINA WORLD TRANSPORT (NIG) LTD v J. B. OLANDEEN INTERNATIONAL & ORS (2010) LPELR ? 2902 (SC).
A party seeking to be joined in a suit must satisfy certain conditions; that is; he must prove that he has sufficient interest in the res of the matter. This honourable Court in OHWAVBORUA & ORS v PEOPLES DEMOCRACTIC PARTY (2013) LPELR ? 20872 (CA) reiterated this condition, when it held thus;
?The Applicants application is principally anchored on provisions of Section 243(1)(a) of the constitution of the Federal Republic of Nigeria 1999 (as amended) , which provides thus: ?Section 243 ? Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or High Court conferred by this constitution shall be: (a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having interest in the matter, and in the case of criminal proceedings at the instance of an accused person or subject to the provisions of this constitution and any powers conferred upon the Attorney ? General of the Federation or the Attorney ? General of the state to take over and continue or to discontinue such proceedings at the instance of such other authorities or person as may be prescribed The thrust of the instant application by the Applicant, tied to Provision of Section 243(1)(a) of the constitution of the Federal Republic of Nigeria 1999 (as amended) are the words ?instance of any other person having interest in the matter..? The Supreme Court of Nigeria in one of its most recent decision on this subject in Abubakar Bala v Musa Dikko & Ors (2012) LPELR?SC.339/2011 stated as follows: ?The Appellants/Applicants? Motion filed at the Court below 23/13/2011, prayed for the order of that Court granting him leave to be joined in the pending appeal as the 4th Respondent. The law is trite that a party seeking to be joined in appeal particularly as a Respondent must be disclose sufficient interest in the subject matter of the dispute between the parties in the pending appeal. See:- Yakubu v Governor, Kogi State (1995) 8 NWLR (PT. 414) 386 at 404.? The question as to what amount to the disclosure of sufficient interest is to interest is to found in the application of the Applicant itself.?
per BAGE, JCA (PP. 17 ? 18, PARAS. A ? B). PER OBASEKI-ADEJUMO, J.C.A.

THE TWO TYPES OF ETOPPELS IN LAW

In law there are basically two types of estoppels, estoppel per rem judicata also referred to as cause of action estoppel and issue estoppel.
In AKINSOLE & ORS v AKINWEHINMI & ORS (2014) LPELR ? 23801 (CA), the classification of Estoppel was explained;
?Estoppel per rem judicata or estoppel of record arises where an issue of facts has been judicially determine in a final manner between parties by a Court or tribunal having jurisdiction, concurrent or exclusive in the matter and the same issue comes directly in question in subsequent proceedings between parties or privies. Thus, the parties affected are stopped from bringing a fresh action before any Court in a previous action ? Osunrinde v Ajamogun (1992) 6 NWLR (PT. 241) 156; Igwego v Ezeugo (1992) 6 NWLR (PT. 24() 561; Dokubo v Omoni (1999) 8 NWLR (Pt. 616) 647; Oshodi v Eyifunmi (2000) 7 SC (Pt. 11) 145. The principle of ?estoppel by standing by? on the other hand if a person is content to stand by and see his battle fought by someone else in the same interest, he is bound by the result and should not be allowed to re-open the case. ?Issue estoppel? arises where an issue had earlier on been adjudicated upon by a Court of competent jurisdiction and the same issues comes incidentally in question in a subsequent proceedings between the same parties or their privies ? Oyerogba v Olaopa (1998) 13 NWLR (Pt. 583) 509; Akujobi v Ekeman (1999) 1 NWLR (Pt. 585) 96;Ito v Ekpe (2000) 2 SC 98; Ebba v Ogodo (2000) 6 SC (Pt. 1) 133?
(Underlining Mine)
per OWOADE, JCA (PP. 34 ? 35, PARAS. A ? B).
ATOLAGBE & ANOR v AWUNI & ORS (1997) LPELR 593 (SC), UWAIS, JSC held;
?It is now well settled that under the common law doctrine of precedent or stare decisis, the decision of a higher Court may be criticized by the judge of a lower Court but notwithstanding the criticism the judge of the lower Court is bound to follow and apply such decision in the case before him.
He has no right to disregard the decision or side – attack it?
Also in ASIRU v ASIRU & ORS (2013) LPELR ? 22075 (CA), it was held that;
issue estoppel 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 proceeding between him and another party to the earlier proceedings
per AKEJU, JCA (PP. 33 ? 34, PARA A)
See also; ADETOUN OLADEJI (NIG) LTD v NIGERIAN BREWERIES PLC (2007) LPELR ? 160 (SC); UGBO & ANOR v UGBO (2018) LPELR ? 43783 (CA) and NWAUKONI v BIELONWU & ORS (2010) LPELR ? 4647 (CA).
The above judgments clearly show that when an issue has been adjudicated upon the parties and their privies were estopped from commencing or prosecuting on the issue. PER OBASEKI-ADEJUMO, J.C.A.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an Interlocutory appeal against the decision of the Lagos High Court delivered on the 7th of June, 2013 by O.O. ATILADE J., in Suit No: ID/1244/2011.
The 1st ? 4th Respondents, as claimants, had instituted an action at the Lagos State High Court against the 5th ? 8th Respondents. They were seeking the following;
a. A DECALARATION that the Claimants family are the person entitled to the reversion by operation of law of all that piece or parcel of land measuring approximately 15.01 acres and referred to as Ikeja City Mall lying, being and situate along Obafemi Awolowo Road, Alausa, Ikeja, Lagos State and more particularly delineated and verged brown in Claimants family Survey Plan No: TJ/LA2175 of 7/9/1975
?b. A DECLARATION that the Claimants are the persons entitled to the Statutory Right of Occupancy of all that piece or parcel of land measuring approximately 15.01 acres formerly known as Strabag site but now known and referred to as Ikeja City Mall lying, being and situate along Obafemi Awolowo Road, Alausa, Ikeja Lagos State

which is more particularly delineated and verge brown in Claimants family Survey Plan No: TJ/LA/24/75 of 7/9/1975.
c. A DECLARATION that the 1st Defendant is an unjustifiable transferee of all that piece or parcel of land formerly known as Strabag site but now known and referred to as Ikeja City Mall lying, being and situate along Obafemi Awolowo Road, Alausa, Ikeja, Lagos State, more particularly delineated and verged brown in Claimants family Survey Plan No: TJ/LA/24/75 of 7/9/1975.
d. AN ORDER setting aside the sale, transfer, assignment, alienation, grant and or registration of interest in any form whatsoever in respect of the piece or parcel of land formerly known as Strabag site but now known and referred to as Ikeja City Mall by the 2nd & 3rd Defendants in favour of the 1st Defendant on the ground that such sale, transfer, assignment alienation, grant and or registration of interest is unconstitutional, null and void and of no consequence whatsoever.
e. AN ORDER compelling/and or mandating the 4th Defendant in this suit through the 2nd & 3rd Defendant to issue a new grant of root of title in favour of the Claimants over the piece

or parcel of land measuring approximately 15.01 acres formerly known as Strabag site but now known and referred to as Ikeja City Mall lying, being and situate along Obafemi Awolowo Road, Alausa, Ikeja, Lagos State which piece or parcel of land is more particularly delineated and verged brown in Claimant family Survey Plan No: TJ/LA/24/75 of 7/9/1975.
f. AN ORDER of Perpetual Injunction restraining the 1st Defendant?s its agents, workmen, staff, assigns and legal representatives from further trespassing on the Claimants family land measuring approximately 15.01acres former known as Strabag site but now known and referred to as Ikeja City Mall lying, being and situate along Obafemi Awolowo Road, Alausa, Ikeja Lagos State which piece or parcel of land is more particularly delineated and verged brown in Claimants family survey Plan No: TJ/LA/24/75 of 97/9/75.
g. AN ORDER of Possession of all that piece or parcel of land formerly known as Strabag site but now known and referred to as Ikeja City Mall which piece or parcel of land is more particularly delineated and verged brown in Claimants family Survey Plan No: TJ/LA/24/75 of 7/9/75.
?
The

Appellants not being parties were oblivious to the Court proceedings, until a letter was received from the office of the Attorney General of Lagos state, pertaining to compensation which has not been paid for the acquisition of land which they had been pressing for. Hence, the Appellants got wind of the Court proceedings, and filed an application dated 27th November, 2012, seeking to join the suit as defendants on the following grounds;
I. That the Applicants/parties seeking to be joined are Executrixes and Executor of the Estate of Late R. A Randle.
II. That the land, the subject matter of this suit belongs to the estate of late Chief R. A Randle.
III. That the family became aware of the present action when the Lagos state Government through the office of the Honourable Attorney General invited members of the family to a settlement meeting.
A
IV. The joinder will prevent the payment of compensation (if any) to a wrong party since the action is about the return of the property earlier acquired by the Government.
V. That it will serve the end of justice if this application is granted.
The application was dismissed by the lower

Court on the ground that the Appellants had not established that they were either proper parties or necessary parties, hence this appeal.
The Appellants? brief was settled by Rotimi Aladesanmi Esq, of Rotimi Aladesanmi & Co, wherefore the counsel raised a sole issue for determination thus:
?Whether the Appellants ought to be joined as defendants in the proceedings before the Lagos State High Court?.

The 1st ? 4th Respondent?s brief was settled by Victor Kolade Esq of Victor Kolade & Co and the sole issue raised by the Appellants was adopted.

APPELLANTS? SUBMISSION
The Appellants relied on Order 16 Rule 3 and Order 17 Rule 1 of the Lagos State High Court Civil Procedure Rules, 2012, and certain undisputed facts between the parties at the lower Court to state that; the Appellants were not interlopers or busy bodies but necessary parties to the suit. He also cited the case of PEENOK INVESTMENTS LIMITED V. HOTEL PRESIDENTIAL LIMITED (1982) 13 NSCC 477; (1982) 12 SC PG 1, to state that the Appellants are the alterem partem in this case and should be heard.
?
The Appellants went on to submit that

they were parties with an interest in the subject matter and would likely be affected by the result of the case. By virtue of the principle of fair hearing, they were therefore entitled to be heard before judgment, he cited GREEN v GREEN (1987) 3 NWLR PT. 61 PG. 480; RE MOGAJI (1986) NWLR PT. 19 PG 759 and ONABANJO v EWETUGA (1993) 4 NWLR PT. 288 PG. 445.

It is the Appellants? submission that the learned trial judge relied on High Court judgments cited by the 1st – 4th Respondents, which held the point that the progenitor of the Ashade family from whom Chief R. A Randle bought parcels of land, was a slave who couldn’t hold properties. This led the lower Court to conclude that the Appellants had no interest which can be protected by the Court, in spite of a contrary finding by the Supreme Court in MOGAJI v CADBURY (1985) 2 NWLR PT. 7 PG. 393, it was held that the said ?Ashade family? was the valid owner of a very vast land in Alausa, Agidingbi, Ogba (where the land in dispute is situated).
?
They strongly submitted that the learned trial judge should not have given preference to the High Court judgments cited over the Supreme

Court judgment, he relied on the case of R.E.A.N v. ASWANI ILE INDUSTRIES LTD. (1991) 2 NWLR PT. 176 PG. 632.

The Appellants also submits that a Court is bound to consider very material aspect of a party’s case, no matter its merit and failure to do so except on the ground of law would amount to a denial of fair hearing, he cited the case Section 33 (1) of the 1979 constitution; OSAFILE v ODI (NO. 1) (1990) 3 NWLR PG. 130 at 156, 158 and 164.

The Appellants submitted further that the lower Court’s conclusion that, the two decisions of the High Court of Lagos state, ?have not been appealed against? amounted to mere speculation as it was not supported by any evidence before it, GOODNEWS AGBI & ANOR v CHIEF AUDU OGBEH & ORS (2007) 10 WRN PG. 144 at 208 was cited.

The Appellants? posit that the exhibits attached to the Appellants? application were not evaluated by the learned trial judge. The learned trial judge could also have suo motu ordered the joinder based on the pleadings and witness statement on oath on behalf of the Lagos state government, as represented by the 6th -8th Respondents, as 2nd – 4th

defendants, as well as the 5th Respondent, as the 1st defendant, as sufficient averments all stated that the valid legal owner of the land in dispute before the acquisition was the late chief R. A. Randle (father of the Appellants). He called on the case of AKANBI v FABUNMI & ANOR (1986) 17 (PT. 1) NSCC PG. 346 at 382. The Court is also meant to consider if a refusal for joinder would lead to a further litigation and that granting same would enable it to be ?effectually and completely adjudicated upon which would settle all questions? in the suit, he relied on IFEANYI v SOLEH BONEH (2000) 12 WRN PG. 1 at 17; UKU v OKUMAGBA (2001) 41 WRN PG. 133 at 151.

The Appellants went further to add that an order for joinder would help eliminate multiplicity of ligation that would arise, as the Appellants would need to engage in ligation against the said claimants over the land in dispute which would lead to a fresh litigation against the Estate of late Chief Emmanuel Oyedele Ashamu who was joined as a defendant by the lower Court in February, 2015.
?
In conclusion, the Appellants urge this Court to make an order for joining the Appellants as

defendants in the pending suit by virtue of Section 15 of the Court of Appeal Act.

1ST ? 4TH RESPONDENTS? BRIEF.
The 1st ? 4th Respondents’ counsel after summarizing the argument of the Appellants in their brief, went on to cite the cases of ALL PROGRESSIVE CONGRESS (APC) v INEC & 7 ORS; IN RE; CONGRESS PROGRESSIVE CHANGE (CPC) v INEC & 7 ORS (2015) 8 NWLR (PART 1462) PAGE 531 at P. 544 at RATIO 17, to submit that facts and circumstances of this case which was based on affidavit evidence at the Court below is irredeemably different from the facts and circumstance in the case of GREEN v GREEN (1987) 3 NWLR (PART 61) PAGE 480 and other cases for joinder of parties cited by the Appellants.

The 1st-4th Respondents further submitted certain depositions in the Appellants? affidavit (paragraphs 3 & 4) in support that were specifically denied in its Counter affidavit (paragraphs 5(b) & (c)) dated 21st of January, 2013 in accordance with the principle in the case of FALOBI v FALOBI (1976) 10 SC 1. The implication of which is to show an objection and to the Appellants deposition at paragraphs 3 & 4 of their

affidavit and to deny the facts contain therein. The Respondents went on to further substantiate these facts in paragraphs 6 & 7 of its counter affidavit.

It is also the Respondents’ submission that the failures of the Appellants to file a Better or Reply Affidavit in response to the counter affidavit makes the facts in the Respondents? counter affidavit remain unchallenged and uncontroverted. Failure to do so is fatal to their case. He relied on the cases of A.G ONDO STATE v A.G.EKITI STATE (2001) 17 NWLR (PART 743) 706; JAMES ABAWU WATHARDA v MAINA ULARAMU & 2 ORS (2015) 3 NWLR (PART 1446) PAGE 253 at 257 RATIO 5; JIBRIN BABALE v MR. INNOCENT EZE (2011) 11 NWLR (PART 1257) PAGE 48 at 69; AJOMALE v YADUAT (NO. 2) (1991) 5 NWLR (PART 191) PAGE 266; BADEJO v MINISTER OF EDUCATION (1996) 8 NWLR (PART 464) 15; LAWSON – JACK v SPDC (NIG) LTD (2002) FWLR (PART 120) 1697.
?
The Respondents also submitted that evidence in Civil and Criminal proceedings includes affidavit evidence and any case or matter begun by Originating Summons or Originating Motion, or any application, may be given by affidavit evidence, unless the rules or the Court

otherwise direct. Consequently affidavit evidence is good evidence which is entitled to be given weight where there is no specific denial, response and/or conflict. He cited the cases of OSITA C NWOSU v IMO STATE ENVIRONMENTAL SANITATION AUTHORITY & 4 ORS (1990) 2 NWLR (PART 135) PAGE 688 at 701 RATIO 26; MR. AYOADE A. ADEWUYI & ORS v ANDREW AJUKO ODUKWE (2000) 4 NWLR (PART 654) PAGE 616 at 619 RATIO 9.

The Respondents attached two Exhibits, Exhibit A and B. Exhibit A is the judgment of Honourable Justice Adebayo Desalu (of blessed memory) while Exhibit B is the judgment of the Honourable Justice S.B. A Candice Johnson. Both Judgments found on the status of ASHADE the predecessor in title to the Appellants in this Appeal as a slave of OSHINUN who was the first settler in OGBA. The effect of which is that Ashade has no right, interest, status or legal capacity to be valid or legal Vendor to Late Chief R.A Randle.
?
It is the submission of the Respondents that the effect of the above Judgments (Exhibits A & B) is captured by Section 173 of the Evidence Act 2011 And the implication of which is that when a matter has been finally adjudicated

upon by a Court of competent jurisdiction, it may not be reopened or challenged by the original parties or by their successor in interest This is known as Action Estoppel. He called on the cases of ANWOYI V SHODEKE (2006) 13 NWLR (PART 996) at 39; ABE v ADENIYI (2007) 4 NWLR (PART 1023) 191 at 218 PARAS A- B; ABUBAKAR v B.O. & A. P. LTD (2007) 18 NWLR (PART 1066) 319.

Therefore, the attempt of the Appellants to be joined as a defendant is an attempt to re- litigate on a settle issue. The motion for joinder is therefore nothing but an abuse of Court process, he cited OSHODI v EYIFUNMI (2000) 13 NWLR (PART 684) 298 in support.

It is therefore, the Respondents’ submission that the Deed of conveyance dated 1st of December, 1956 (Exhibit OR1) of the purported sale and registrations of two parcels of land situate at Alausa Village, Ikeja, Lagos state for and on behalf of the Ashade family to the Appellants? father (Late Chief R. A Randle) is void and of no legal effect whatsoever.

The Respondents submitted that the Appellants who relied on the judgment in MOGAJI v CADBURY (Supra) failed woefully in discharging the burden of proof required

of them in proving the reliance of this case to the issues under reference. The case is not on all fours with the facts and circumstances of this case, he called on the case of OKAFOR v NNAIFE (1987) 4 NWLR (PART 64) at 131.

It is the Respondents? further submission that the facts and circumstances existing in this case is different from all cases cited by the learned Counsel to the Appellants on joinder as it is trite that isolated and general principles of law cannot be relied solely to determine an issue in a case without looking at circumstance, facts and merits of each case He relied on the case of MARINE MANAGEMENT ASSOCIATES INC. & ANOR NATIONAL MARITIME AUTHORITY (2013) ALL FWLR (PART 678) PAGE 790 at 794 RATIO 4.

In conclusion, the Respondents urge this Court to dismiss the Appellants? appeal in its entirety.

RESOLUTION.
It is a trite principle of law that for a party to be joined to an existing action, he must have a direct or legal interest. A person is said to be legally interested if the answers to the question in issue may affect or curtail his rights.
?In ABUBAKAR DUDU MOTORS & ANOR v ABDULKADIR KACHIA

(2016) LPELR ? 40228 (CA), the main purpose for joinder of parties was held thus;
?The main reason or purpose for a joinder of a party or parties in a suit is to make that person(s) bound by the results of the suit, and the question to be settled therefore must be question in the action which cannot be effectually and completely settled unless he or they are made party or parties?
per BDLIYA, JCA (PP. 15 ? 16, PARAS. F ?A)
See also; HASSAN v ATANYI (2002) 8 NWLR PT. 770 PG. 587; AZUBUIKE v PEOPLES DEMOCRACTIC PARTY & ORS (2014) LPELR ? 22258 (SC); PANALPINA WORLD TRANSPORT (NIG) LTD v J. B. OLANDEEN INTERNATIONAL & ORS (2010) LPELR ? 2902 (SC).
A party seeking to be joined in a suit must satisfy certain conditions; that is; he must prove that he has sufficient interest in the res of the matter. This honourable Court in OHWAVBORUA & ORS v PEOPLES DEMOCRACTIC PARTY (2013) LPELR ? 20872 (CA) reiterated this condition, when it held thus;
?The Applicants application is principally anchored on provisions of Section 243(1)(a) of the constitution of the Federal Republic of Nigeria 1999 (as amended)

, which provides thus: ?Section 243 ? Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or High Court conferred by this constitution shall be: (a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having interest in the matter, and in the case of criminal proceedings at the instance of an accused person or subject to the provisions of this constitution and any powers conferred upon the Attorney ? General of the Federation or the Attorney ? General of the state to take over and continue or to discontinue such proceedings at the instance of such other authorities or person as may be prescribed The thrust of the instant application by the Applicant, tied to Provision of Section 243(1)(a) of the constitution of the Federal Republic of Nigeria 1999 (as amended) are the words ?instance of any other person having interest in the matter..? The Supreme Court of Nigeria in one of its most recent decision on

this subject in Abubakar Bala v Musa Dikko & Ors (2012) LPELR?SC.339/2011 stated as follows: ?The Appellants/Applicants? Motion filed at the Court below 23/13/2011, prayed for the order of that Court granting him leave to be joined in the pending appeal as the 4th Respondent. The law is trite that a party seeking to be joined in appeal particularly as a Respondent must be disclose sufficient interest in the subject matter of the dispute between the parties in the pending appeal. See:- Yakubu v Governor, Kogi State (1995) 8 NWLR (PT. 414) 386 at 404.? The question as to what amount to the disclosure of sufficient interest is to interest is to found in the application of the Applicant itself.?
per BAGE, JCA (PP. 17 ? 18, PARAS. A ? B)

The crux of this appeal flowing from the ruling of the learned trial judge at pages 453 ? 454 of the Records is that, the Appellants have a connection with an already settled issue of title of the Ashade family. The learned trial judge held thus;
?It is trite that once one or two issues have been raised in a cause of action and distinctly determined or

resolved between the same parties in Court of competent jurisdiction, then neither party nor his party or agent is allowed to re?litigate that on those decided issues all over again in another action between the same parties or privies on the same issues. See Anwoyi V Shodeke (2006) 13 NWLR (PT. 996) @ 39.
In the instant case the contention of the claimant/Respondent?s counsel is that the applicant having admitted and acknowledged that they derived their title from the Ashade family in this present case, because the issue of title of the Ashade family has been completely decided upon by Courts of competent jurisdiction?

The lower Court was of the opinion that decisions in those suits remain valid and binding on the issues decided in those suits since they have not been appealed against.

It further held at page 454 that;
the documentary evidence (Exhibit OR1 ? OR3) attached to the Affidavit in support of the pending application, does not constitute sufficient evidence of the nature of their direct interest in the subject matter, and is therefore not sufficient to put them within the ambit of a proper

or necessary party

After careful consideration of the lower Court?s ruling and the arguments of each party, it is clear that, this appeal is hinged on two issues, so infused like a Siamese twins that the proper resolution of one would lead to the death of the other;
1. Whether the Appellants have sufficient interest in the subject matter and if so;
2. Whether the Affidavit in support of the Appellants? application and the documentary evidence properly establishes this interest.

The source of the Appellants right stems from the interest gotten from the Ashade family, who as the Appellants claims and provided evidence were the vendors of the subject matter to Appellants? late father. They relied heavily on the case ofMOGAJI v CADBURY (1985) 2 NWLR PT. 7 PG. 393, in submitting that the learned trial judge was wrong to have relied on Exhibits A and B tendered by the Respondents, as these are High Court judgments, and do not take precedence over a supreme Court decision.
In the case of MOGAJI v CADBURY (Supra), the Apex Court held per ANDREWS OTUTU OBASEKI, JSC thus;
?I am satisfied on the

evidence that the defendants have adduced evidence, both oral and documentary, which has the effect of discrediting the plaintiffs? evidence, that the land in dispute originally belonged to Aina Adeokun, that being so, I hold the view that the claim of the Plaintiffs, the Mogaji family, for a declaration of title must fail and it is hereby dismissed?
And also stated further;
the Ashade family owned the land in Alausa based on the various judgments against Dada Okin from whom the Appellants derive their title to Land in dispute
This decision estops the re?litigation of issues relating to the title or ownership of the subject matter, that is, it has invoked the principle of Estoppel. This principle was defined in the case of TUKUR v GARBA (2012) LPELR ? 9337 (SC) per ARIWOOLA, JSC as;
?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 as true. A bar that prevents the re?litigation of issues?
In law there are basically two types of estoppels, estoppel per rem judicata also

referred to as cause of action estoppel and issue estoppel.
In AKINSOLE & ORS v AKINWEHINMI & ORS (2014) LPELR ? 23801 (CA), the classification of Estoppel was explained;
?Estoppel per rem judicata or estoppel of record arises where an issue of facts has been judicially determine in a final manner between parties by a Court or tribunal having jurisdiction, concurrent or exclusive in the matter and the same issue comes directly in question in subsequent proceedings between parties or privies. Thus, the parties affected are stopped from bringing a fresh action before any Court in a previous action ? Osunrinde v Ajamogun (1992) 6 NWLR (PT. 241) 156; Igwego v Ezeugo (1992) 6 NWLR (PT. 24() 561; Dokubo v Omoni (1999) 8 NWLR (Pt. 616) 647; Oshodi v Eyifunmi (2000) 7 SC (Pt. 11) 145. The principle of ?estoppel by standing by? on the other hand if a person is content to stand by and see his battle fought by someone else in the same interest, he is bound by the result and should not be allowed to re-open the case. ?Issue estoppel? arises where an issue had earlier on been adjudicated upon by a Court of

competent jurisdiction and the same issues comes incidentally in question in a subsequent proceedings between the same parties or their privies ? Oyerogba v Olaopa (1998) 13 NWLR (Pt. 583) 509; Akujobi v Ekeman (1999) 1 NWLR (Pt. 585) 96;Ito v Ekpe (2000) 2 SC 98; Ebba v Ogodo (2000) 6 SC (Pt. 1) 133?
(Underlining Mine)
per OWOADE, JCA (PP. 34 ? 35, PARAS. A ? B).
ATOLAGBE & ANOR v AWUNI & ORS (1997) LPELR 593 (SC), UWAIS, JSC held;
?It is now well settled that under the common law doctrine of precedent or stare decisis, the decision of a higher Court may be criticized by the judge of a lower Court but notwithstanding the criticism the judge of the lower Court is bound to follow and apply such decision in the case before him.
He has no right to disregard the decision or side – attack it?
Also in ASIRU v ASIRU & ORS (2013) LPELR ? 22075 (CA), it was held that;
issue estoppel 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 proceeding

between him and another party to the earlier proceedings
per AKEJU, JCA (PP. 33 ? 34, PARA A)
See also; ADETOUN OLADEJI (NIG) LTD v NIGERIAN BREWERIES PLC (2007) LPELR ? 160 (SC); UGBO & ANOR v UGBO (2018) LPELR ? 43783 (CA) and NWAUKONI v BIELONWU & ORS (2010) LPELR ? 4647 (CA).
The above judgments clearly show that when an issue has been adjudicated upon the parties and their privies were estopped from commencing or prosecuting on the issue.
The Supreme Court case of MOGAJI v CADBURY (Supra), where the Ashade family were declared owners of the subject matter is still valid as the Supreme Court has not set aside that judgment, and it simply takes precedence over the High Court Judgments, even though they haven?t been appealed against.
The lower Court was bound by the decision and to exercise caution to join the Appellants with a view to see the issues at play clearer instead they were shut out.
The doctrine of stare decisis strictly applies and the Court has no discretionary powers to deviate from the principles enunciated by the Apex Court.
See: AZUBUOGU v ORANEZI (2017)

71 NSCQR. 214; AG LAGOS STATE v EKO HOTELS LTD (2017) 72 NSCQR 228; ISA KASSIM v STATE (2017) 71 NSCQR. 357.

Therefore, the issue as to whether the Appellants have sufficient interest in the subject matter has been settled, as their father, Late Chief R. A Randle did acquire proper title from the rightful owners of the land and have sufficient interest therein.

Consequently, making them necessary parties in the suit, to defend their interest, in the subject matter, they cannot be called interlopers under these circumstances.

I, therefore resolve the issue in favour of the Appellants.

Flowing from the above, the issue as to whether the Affidavit in support of the Appellants? application and documentary evidence properly establishes this interest is of no consequence as it has been rendered academic.

The sole issue raised by the Appellants; ?whether the Appellants ought to be joined as defendants in the proceedings before the Lagos State High Court?, is hereby resolved in the favour of the Appellants.

The Appeal is meritorious and is hereby allowed. The Appellants are hereby joined as necessary parties to the suit

(ID/1244/2011).

The ruling of the Lagos state High Court coram O. O. ATILADE, J., delivered on 22nd April, 2013 is hereby set aside.
The suit be given accelerated hearing.
Parties are to bear costs.

MOHAMMED LAWAL GARBA, J.C.A.: I agree.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have been availed to read in draft, the lead judgment just delivered by my learned brother, Abimbola Osarugue Obaseki-Adejumo, JCA, wherein the interlocutory appeal was allowed.

I agree with the clinical analysis on the arguments Of the parties in the appeal and the resolution therefrom on the sole issue of the appeal.

The judgment of the Supreme Court, per ANDREWS OTUTU OBASEKI, JSC in MOGAJI V. CADBURY (1985) 2 NWLR (Pt. 7) @ 393; remains the standard, in the instance, with which the lower Court ought to be guided in arriving at its decision on the application filed by Appellant before it.
?
I find the appeal meritorious, and it is allowed by me too. I also agree that parties should bear their respective costs.

Appearances:

Rotimi Aladesanmi with him, Gabriel UwaifoFor Appellant(s)

Joseph Adewumi for 1st-4th Respondents.
Lawal Ijaodola for 5th Respondent.
A.M. Salau for 6th-7th and 8th Respondents
For Respondent(s)

Appearances

Rotimi Aladesanmi with him, Gabriel UwaifoFor Appellant

AND

Joseph Adewumi for 1st-4th Respondents.
Lawal Ijaodola for 5th Respondent.
A.M. Salau for 6th-7th and 8th RespondentsFor Respondent