OBA AFOLAYAN ABIOYE V. OBA FELIX ABIDOYE
(2012)LCN/5673(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of November, 2012
CA/I/119/2007
RATIO
“For a successful plea of estoppel per rem judiatam the following factors must co-exist: (a) the parties or their privies must be the same in both the previous and present proceedings; (b) the res of the subject matter of the litigation in the two cases must be the same; (c) the decision relied upon to support the plea of estoppel must be valid, subsisting and final; and (d) the court that gave the previous decision relied upon to sustain the plea must be a court of competent jurisdiction. See: Oloruntoba-Oju vs. Abdul-Raheem (2009) 13 NWLR (1157) 83 at 132 B – E; Ibero v. Ume-Ohana (1993) 2 NWLR (277) 510 at 520.” Per KEKERE-EKUN, J.C.A.
“In the case of Ibero vs. Ume-Ohana (supra), the Supreme Court held at page 520 that: “… The principle upon which is based a successful plea of res judicata, when raised in limine or after a trial is clear. It is that the Defendants who raises (sic) such a plea must show that the instant suit seeks to raise anew a question or questions already finally and validly decided (or implicit in such a decision) by a court of competent jurisdiction. Such a decision must have been between the same parties or their privies (or conclusive in rem) on the same subject matter, and on the same issues, all these matters must be shown to co-exist. Once it is shown that the question in litigation is caught by estoppel per rem judicatam, there the matter lies. It is a rule of public policy based on the maxim: interes rei publicae ut sit finis litium – it is in the public interest that a litigation shall come to an end: see THODAY vs THODAY (1964) P.181, Pg 197 – 198; EGBEYEMI OGUNDIRAN & ANOR VS. EGUNYEMI BALOGUN (1952) WRNLR. 51, Pg 52. So conclusive and important is estoppel per rem judicatam that the party affected by it is not allowed to call evidence to contradict it: he can only show that the decision was not validly or competently reached, or that the tribunal whose decision is relied upon as res judicata has no jurisdiction or that the parties, subject matter or issues were not the same.” Per IYIZOBA, J.C.A.
“Facts averred to in the pleadings are not issues. In Unity bank PLC v. Bouari (2008) 7 NWLR (Pt.1086) 372 at 402 F-G, an issue was defined as a point that has arisen in the pleadings of the parties which forms the basis of the dispute or litigation which requires resolution by a trial court. See also Eke & Ors v. Okwarenyia & Ors (2001) 6 SCM 27 at 45. It is obvious then that issues cannot be facts averred to in the pleadings.” Per IYIZOBA, J.C.A.
“I agree with learned counsel for the appellants that forfeiture and recovery of possession are not automatic. If the two sides are disputing ownership of the land, forfeiture cannot arise until ownership is determined. The claim for forfeiture is naturally the consequence of the grant of title to the appellants by the trial court in HOS/32/86. It is normal for the appellants after securing the declaration of title in their favour to come back to court to seek the reliefs of forfeiture and recovery of possession. See Onia v. Onyia (1989) 1 NWLR (Pt.99) 514 at 532. See also Archibong v. Ita (2004) 2 NWLR (Pt.858) 590; where the supreme observed: “It is perfectly legitimate or right, for example in a land suit, for a person who has had a previous suit in his favour either to use it as foundation for an action in trespass or to go to court again to add something new to what he already got in the previous judgment in his favour.” The learned trial judge analyzing the above quotation observed: “The above quote in italics refers to an action in trespass or something new. By ejusden generis rule of interpretation words following must relate to the preceding words. It therefore means that “something new” relates to action in trespass” With all due respect to the learned trial judge, there is no justification for this complicated and technical interpretation of the simple and clear words of the learned J.S.C which in its ordinary meaning covers the situation here. In land matters, a person who already has a previous judgment in his favour can go back to court using that previous judgment as the foundation for an action in trespass or to add (claim) something new to what he already got in the previous judgment. The appellants herein got a judgment in HOS/32/86 giving them title to the land in dispute and declaring the respondents to be customary tenants of the appellants. The appellants then came back to court to add something new to what they already got from the court. What is that something new? A claim against the respondents for forfeiture of their customary tenancy. Of course if such a claim was part of the original suit, then of course the respondent would be right to set up the defence of estoppel. But a careful perusal of the Supreme Court judgment in SC. 127/1996 at page 19 of the record (confirming the court of Appeal judgment which confirmed the High court judgment in HOS/32/86) would show that the issue of forfeiture did not arise at all in the case.” Per IYIZOBA, J.C.A.
JUSTICES:
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
OBA AFOLAYAN ABIOYE
(Olororuwo of Ororowu) & Ors – Appellant(s)
AND
OBA FELIX ABIDOYE
(Alaagba of Aagba) & Ors – Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Osun State High Court delivered on the 6th day of March, 2007 by Aderibigbe J. dismissing the claims of the appellants on the ground that the claims were caught by the principle of estoppel per res judicata.
The appellants who were plaintiffs in the lower court sued the respondents/defendants claiming forfeiture of the customary tenancy of the defendants in respect of the land in dispute, recovery of possession and injunction. In their amended statement of claim, the plaintiffs averred that the land in dispute was granted to the defendants for farming purposes only and on payment of Ishakole. The defendants not only defaulted in paying the Ishakole but started to challenge the ownership of the land by the plaintiffs by building houses, allocating plots for building without the knowledge or consent of the plaintiffs. When all entreaties to the defendants to desist from their misconduct failed, the plaintiffs filed an action against the defendants in suit no HOS/2/86. The suit was determined on 30/6/89 with the court affirming the title of the plaintiffs as customary owners entitled to statutory right of occupancy over the disputed land. The plaintiffs averred that in spite of the judgment the defendants continued to build houses on the land and continued to allocate parcels of it to people for building and other purposes contrary to the terms of their customary grant which was for farming purposes only and despite vehement opposition by the plaintiffs. The plaintiffs averred that the defendants have by their failure to pay Ishakole, and denial of the title of their overlord by continuing to build houses on the land incurred forfeiture of their customary tenancy. The plaintiffs pleaded the judgments in suits nos HOS/32/86, CA/I/16/90 and SC 127/1996.
In their amended statement of defence, the defendants averred that in suit no. HOS/32/86 in respect of the same land in dispute the plaintiffs had claimed title to statutory right of occupancy, N5,000.00 general damages for trespass and injunction restraining the defendants from committing acts of trespass on the land. The court granted the plaintiffs title but refused their claim for damages and injunction. The defendants averred that the land in dispute has always been in their possession and that there are about 500 houses in the land, most of them ancient buildings and compounds erected over hundred years ago. The defendants averred that while admitting that the judgment of the High court in suit no. HOS/32/86 has been affirmed by the Court of Appeal and the Supreme Court, they would at the trial of the suit contend that the suit as presently constituted is res judicata and therefore an abuse of court process. They counterclaimed for relief against forfeiture, recovery of possession and injunction.
The plaintiffs in their amended reply to the amended statement of defence averred that the whole land occupied by the defendants originally belonged to the plaintiffs and that part of land already built up by the defendants was left for them; that the part now in dispute well known to the defendants was not built up but the defendants ignored the protests of the plaintiffs, stopped paying Ishakole and continued erecting buildings on the land even in defiance of a court injunction obtained against them on 11/3/91 during the course of the proceedings in suit no HOS/32/86. The plaintiffs averred that despite the fact that the defendant’s appeals to the Supreme Court and Court of Appeal were dismissed and plaintiff’s ownership of the land confirmed with the defendants also confirmed as customary tenants of the plaintiffs; the defendants still continued to deny the title of the plaintiffs, refused to pay Ishakole and continued to build on the land. The plaintiffs averred that they would contend at the trial that the defendants by their conduct have incurred forfeiture of their customary tenancy and that their tenancy should be forfeited on the land in dispute.
The defendants filed a motion on notice praying the court for an order dismissing the suit for being caught by the principle of res judicata. Their motion was supported by a 5 paragraph affidavit in which they deposed inter alia that the plaintiffs are relying on substantially the same facts as in suit no HOS/32/86 and that their claims in the present suit ought to have been made in that suit; that the plaintiffs are estopped from re-litigating against the defendants in respect of the same subject matter as in HOS/32/86.
The plaintiffs filed a counter-affidavit in which they deposed inter alia that the issues and reliefs claimed in the suit are not the same as those granted in HOS/32/86.
After hearing the parties on the motion, the learned trial judge in a reserved ruling dismissed the plaintiff’s action for want of jurisdiction holding that the suit is caught by the doctrine of estoppel per rem judicatam and that the plaintiffs are estopped from bringing a fresh action for forfeiture, recovery of possession and injunction.
The plaintiffs being dissatisfied with the ruling appealed to this court by notice of appeal containing six grounds of appeal. In their brief of argument settled by M. A. Laogun Esq. three issues were formulated from the six grounds of appeal. The issues are:
1. Whether the appellant’s suit as constituted is caught by the operation of the doctrine of estoppel per rem judicatam.
2. Whether the plaintiffs/appellants are estopped from bringing a fresh action for forfeiture, recovery of possession and ancillary relief of injunction claimed in the present suit.
3. Whether the plaintiffs/appellants suit as constituted is such where there should be an end to litigation and should be dismissed and not struck out.
In the defendant/respondent’s brief of argument settled by M. O. Okediya Esq. the following two issues were formulated:
1. Whether the learned trial judge was right in holding that the plaintiffs/appellants action is caught by the operation of the doctrine of estoppel per res judicata
2. Whether the proper order to make where a suit is caught by the principle of res judicata is an order of dismissal.
The respondents’ two issues cover all the grounds of appeal. I shall adopt those two issues in the determination of this appeal.
The arguments of Mr. Laogun for the appellants on these two issues, including the appellants’ issue 2 may be summarized thus: The claim in the present suit is for forfeiture of the customary tenancy, recovery of possession and injunction while the claim in the previous suit was for declaration of title, damages for trespass and injunction. The court in the previous suit granted the appellants title but refused to grant damages for trespass and injunction because the respondents were found to be customary tenants of the appellants.
The respondents appealed up to the Supreme Court and lost. Counsel submitted that for a plea of estoppel per rem judicatam to succeed, the parties and their privies must be the same; the claims, issues and subject matter; the decision relied upon to support the plea must be valid subsisting and final and the court that gave the previous decision must be a court of competent jurisdiction. The plea cannot be sustained unless all the conditions are satisfied and the burden is on the party setting up the defence. Learned counsel relied on the cases of Agwu v. Ibenye (1989) 62 LRCN 4805 at 4823 G-E; Odutola v. Oderinde & Ors (2004) 6 SCM 161 at 167 – 168; Balogun v. Shifawu Ode & Ors (2007) 4 SCM 1 at 16; Ibero v. Ume-Ohana (1939) 2 NWLR (Pt. 277) 510 at 520 & 529. Counsel submitted that the parties in the two suits are the same, the subject matter the same; the court that gave the earlier judgment competent but that the issues in the two suits are different.
Counsel further submitted that the trial judge misinterpreted the decision of the Supreme Court in Ibero v. Ume-Ohana (supra) in relying on the case to hold that the appellant was estopped from bringing a fresh action for forfeiture, recovery of possession and injunction because the claims related to the same class of action – damages for trespass and injunction already refused in the earlier case.
Finally, learned counsel submitted that the trial Judge erred in dismissing the suit instead of striking it out. Counsel argued that the trial judge misinterpreted Order 24 of the High Court (Civil Procedure) Rules, Cap 51, Laws of Osun State of Nigeria under which the respondents urged the court to dismiss the claims. Counsel contended that since the trial judge ruled that the plea of estoppel succeeded and that the court lacked jurisdiction, the proper order would have been one striking out the suit and not an order of dismissal.
In reply, Mr. Okediya for the respondents submitted that the trial judge was right in his ruling that the appellants’ action was caught by the operation of the doctrine of estoppel per res judicata. Learned counsel summarized the respondents’ position thus:
1. That the parties in this suit and in Hos/32/86 are the same.
2. That the subject matter in the two suits are the same
3. That the cause of action in the two suits i.e. alleged breaches of the customary tenancy by the respondents are the same.
4. That from the cause of action in the two suits arise the issue of possession of the land.
5. That the appellants as plaintiffs in HOS/32/86 submitted the issue of possession for determination by their claims for damages for trespass and injunction. Although the right to claim for forfeiture and recovery of the land had accrued to them at the time of filing HOS/32/86 they chose to claim for damages for trespass and injunction.
6. That the issue of possession was determined against the appellants in HOS/32/86 by the dismissal of the claims for damages for trespass and injunction.
7. That immediately after the judgment of HOS/32/86 which was delivered on 30th June, 1989, the appellants instituted this action before the lower court on the 1st of August, 1989 on the same facts and now claiming for forfeiture, and recovery of the land.
8. That it is trite law that once an issue has been submitted before a court and determined, a party cannot re-litigate on the issue.
9. That it is trite law that a claimant is not allowed to nibble at the claims available to him and bring them piece meal. That, the respondents argued is what the appellants did in this suit and that they are therefore caught by the principle of res judicata.
Learned counsel cited and relied on Salami Afolabi v. Governor of Osun State (2003) 7 SCNJ 27 at 33: Usman v. Garke (2003) 7 SCNJ 38 at 50 – 51; Standard Engineering v. N.B.C.I. (2006) 3 SCNJ 1 at 13; Unity Bank PLC & Anor v. Bouari (2008) 2 SCM 193 at 211; Ekpoke v. Usilo (1978) 6-7 SC 187 at 198-199; Asbogunleri v. Depo & Ors (2008) 1 SCM 1; Standard Bank v. Ikomi (1972) 1 SC 164 at 178; Savage v. Uwaechia (1972) 3 SC 214 at 222-223; Dzunewe v. Gbishe (1985) 2 NWLR (pt. 8) 528 at 537-540; Ezewani v. Nwordi (1986) 4 NWLR (Pt. 33)Â Â 27 at 48; Ngwo v. Nwonye (1970) 1 All NLR 91 at 97-98: Alade Gbemi v. Fasanmade (1988) 3 NWLR (Pt. 81) 129; Fabunmi v. Oyewusi (1990) 6 NWLR (Pt. 159) 737.
On the respondents’ issue no 2, relying on Order 24 Rule 3 of the High Court (Civil Procedure) Rules 1988, counsel submitted that a decision that a suit is caught by the operation of the principle of res judicata is a decision on the merits of the case and a final decision which will not allow the institution of further proceedings on the subject matter. The proper order is therefore one of dismissal.
I shall deal with this last point first. Mr. Laogun for the appellants is right that generally when a court rules that it has no jurisdiction to entertain a suit the proper order to make is an order striking out the suit. See Lakanmi v. Adene & Ors (2003) 10 NWLR (Pt.828) 353:
“Where however a court is satisfied that it has no jurisdiction to try a matter for any reason whatsoever, the matter should there and then be struck out …” Per Kalgo J.S.C. pp 10-11 G-C
See also Wilson v.A.G. Bendel (1985) 1 NWLR (Pt. 2) 572; Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688.
This however is the general rule and the reason for it is quite obvious. Where a court has no jurisdiction, by striking out the case instead of a dismissal, the aggrieved party can then go to the appropriate forum to pursue his claim. But Order 24 Rule 3 of the High Court (Civil Procedure) Rules 1988 under which the respondent herein brought his motion in the lower court provides:
“If in the opinion of the court or a judge the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counter-claim or reply therein, the court or judge may thereupon dismiss the action or make such order therein as may be just.”
The above rule gives the judge the discretion to dismiss the case. The trial Judge’s exercise of his discretion to dismiss the case instead of striking it out is in accordance with the law if the case is one in which estoppel is properly applicable. Where all the conditions are satisfied and a plea of estoppel is properly upheld, an order of dismissal will cause no injustice to the plaintiff as he cannot in any event be able to pursue his claim elsewhere.
Coming now to the main issue, both parties are in agreement and there is a plethora of authorities that for a plea of res judicata to succeed the following conditions must be satisfied:
1. The parties or their privies must be the same in the previous and present proceedings.
2. The claims and issues in dispute in both proceedings must be the same.
3. The subject-matter, the res in the two cases must be the same.
4. The adjudication in the previous case must have been given by a court of competent jurisdiction
5. The previous decision must have finally decided the issues between the parties.
See the following cases; Salami Afolabi & Ors v. Governor of Osun State & Ors (2003) 7 SCNJ 27; Ibenye & Ors v. Agwu & Anor (1998) 9 – 10 SC 18; Ibero & Anor v. Ume-Ohana (1993) 2 NWLR (Pt.277) 510; Ogbogu v. Ndiribe (1992) NWLR (Pt. 235); Igwego & Ors v. Ezeugo & Anor (1992) 6 NWLR (Pt.249) 561; Ajuwon & Ors v. Adeoti (1990) NWLR (PT. 132) 271; Fadiora v. Gbadebo (1978) 3 SC 219; William Ude & Ors v. Josiah Agu & Ors (1961) 1 ALL NLR 65.
The burden rests squarely on the defendant who sets up the defence of res judicata to adduce evidence in proof of the pre-conditions. The parties herein are in agreement that the parties in the two suits are the same; the subject matter the same and that the previous judgment was given by a court of competent jurisdiction. They disagree as to whether the issues are the same.
The contention of the respondents is that the issue of forfeiture, recovery of possession and injunction being canvassed in the present suit had already been determined in the earlier suit. Counsel premised his argument on the point that these reliefs had already accrued when the appellants filed the earlier suit and that they ought to have been claimed in that earlier suit but since the appellants ignored those reliefs and chose to litigate on damages for trespass and injunction only, they are estopped from bringing a fresh action for those reliefs as they relate to the same class of action which is possession of the land in dispute already determined by the court. In his judgment at page 45 of the record, the learned trial judge held:
“In the present case the Respondents’ claims are (i) forfeiture, (ii) recovery and (iii) injunction in respect of the land in dispute.
These reliefs – forfeiture, recovery and injunction, had already accrued at the time Suit No. HOS/32/86 was instituted. The Respondents should have incorporated all these reliefs in their claims in the previous case, as it is better to err on the side of surplussage. In my view since the respondents chose to litigate on damages for trespass and injunction which were dismissed in the previous case, they are estopped from bringing fresh action for forfeiture, recovery of possession and injunction as the present claims related to the same class of action which is possession of the land in dispute. In the case of Ibero vs. Ume-Ohana (supra), the Supreme Court held at page 520 that:
“… The principle upon which is based a successful plea of res judicata, when raised in limine or after a trial is clear. It is that the Defendants who raises (sic) such a plea must show that the instant suit seeks to raise anew a question or questions already finally and validly decided (or implicit in such a decision) by a court of competent jurisdiction. Such a decision must have been between the same parties or their privies (or conclusive in rem) on the same subject matter, and on the same issues, all these matters must be shown to co-exist. Once it is shown that the question in litigation is caught by estoppel per rem judicatam, there the matter lies. It is a rule of public policy based on the maxim: interes rei publicae ut sit finis litium – it is in the public interest that a litigation shall come to an end: see THODAY vs THODAY (1964) P.181, Pg 197 – 198; EGBEYEMI OGUNDIRAN & ANOR VS. EGUNYEMI BALOGUN (1952) WRNLR. 51, Pg 52. So conclusive and important is estoppel per rem judicatam that the party affected by it is not allowed to call evidence to contradict it: he can only show that the decision was not validly or competently reached, or that the tribunal whose decision is relied upon as res judicata has no jurisdiction or that the parties, subject matter or issues were not the same.”
Assuming the present case is heard by this Court, what happens if after conclusion of the proceedings the Respondents again discover that some other claims are omitted? Would they bring another Suit to litigate on those claims? ”
With all due respect to the learned trial judge, it appears that by the reasoning behind the ruling, he introduced an additional test for determining when the doctrine of estoppel is applicable which is, if at the time of the first action, the reliefs had already accrued and was not claimed, then the claimant is estopped from filing a fresh action to claim such reliefs. The quotation lifted from Ibero vs. Ume-Ohana above does not support the view of the learned trial judge. On the contrary, it re-stated the usual conditions for reliance on estoppel. The important question here is whether the claims for forfeiture, recovery of possession and injunction were issues canvassed and determined in the earlier suit. By refusing the relief for damages for trespass and injunction in the first suit, can the court be deemed to have considered and rejected the relief for forfeiture, recovery of the land and injunction? Can refusal to award damages for trespass and refusal to grant injunction to restrain further trespass on the land on the ground that the respondents were found to be customary tenants of the appellants translate to confirmation of the possessory rights of the respondents such that the appellants are precluded or estopped from subsequently enforcing their right of forfeiture of the customary tenancy by the respondents? The answer to this question in my view is a resounding No!
The issues in the two cases are clearly not the same. Learned counsel for the respondents had submitted that the issues are the same because the appellants are relying on the same facts used in the previous suit in the present suit and that the reliefs sought in this suit had already accrued to the appellants at the time suit HOS/32/86 was initiated. Learned Counsel for the respondent in his brief relied on the case of Agbogunleri v. Depo & Ors (Supra) where Muhammad J.S.C. observed:
“In order to succeed on the plea of estoppel by judgment, it is necessary for the defendant to show:-
1. The subject matter in dispute is the same namely that everything that is in controversy in the second suit as the foundation of the claim for relief was also in controversy in the first suit.”
Learned counsel with respect misinterpreted the above quotation to mean that where the facts averred in the pleadings in the two cases are the same, irrespective of the relief claimed, estoppel applies. A perusal of the amended statement of claim in this case shows that the appellants made averments relating to issues already settled in Suit No. HOS/32/96 but in doing so they referred to the suit and indicated their intention to rely on same. It will in my view amount to stretching technicality to absurd limits to conclude that because of the misguided verbosity in the amended statement of claim, the appellants would be precluded from pursuing their legitimate claims which were not issues considered or determined in suit no. HOS/32/86 and affirmed by the Supreme court in SC.127/96. The pre-condition for upholding the plea of estoppel which is causing disagreement here is that the issues in dispute in the two cases must be the same. Facts averred to in the pleadings are not issues. In Unity bank PLC v. Bouari (2008) 7 NWLR (Pt.1086) 372 at 402 F-G, an issue was defined as a point that has arisen in the pleadings of the parties which forms the basis of the dispute or litigation which requires resolution by a trial court. See also Eke & Ors v. Okwarenyia & Ors (2001) 6 SCM 27 at 45. It is obvious then that issues cannot be facts averred to in the pleadings. With this definition of issues, I am of the firm view that the learned trial judge misconceived the meaning of the word “issue” and consequently wrongly held that the issues in the two cases are the same. The issues determined in the previous suit are title of the plaintiffs to the land in dispute and position of the defendants as customary tenants of the plaintiffs.
The issues for determination in the present suit are on forfeiture, recovery of possession of the land and injunction. The issues are not the same. As regards the view of the learned trial judge that the claim for forfeiture should have been part of the appellant’s case in HOS/32/86, and that having failed to raise it then, they are estopped. It must be borne in mind that the respondents claimed ownership of the land in dispute in HOS/32/86 and had denied being customary tenants of the appellants. The appellants cannot therefore be blamed for deciding instead of making the claim for forfeiture in the same suit, to await the outcome of the judgment of the court as to ownership. It follows that the trial court in HOS/32/86 having found that the respondents were customary tenants of the appellants refused the claim for damages for trespass and injunction. Tenants who are lawfully on the land as customary tenants cannot be found liable in trespass. The contention of the respondents that the appellants did not appeal against the refusal to award damages for trespass is ludicrous. Why would they appeal against a decision that is in their interest? The judgment in HOS/32/86 recognised the fact that the respondents were in lawful possession of the disputed land as customary tenants. That did not in any way give them any higher rights than the usual rights to which a customary tenant is entitled to. To deny the title of the overlord or non-payment of Ishakole are factors which would expose a customary tenant to the danger of forfeiture of his tenancy. These issues even if mentioned in the pleadings were not considered or determined in HOS/32/86. By not raising the issue of forfeiture in the earlier suit, the appellants cannot be accused of nibbling at their claims as in Savage v. Uwaechia (supra) or Dzungwe v. Gbishe (supra). This is not a case of negligence or inadvertence in putting up the claim of forfeiture in the first suit because the claim for forfeiture depended on the decision of the Court as to ownership of the disputed land.
I agree with learned counsel for the appellants that forfeiture and recovery of possession are not automatic. If the two sides are disputing ownership of the land, forfeiture cannot arise until ownership is determined. The claim for forfeiture is naturally the consequence of the grant of title to the appellants by the trial court in HOS/32/86. It is normal for the appellants after securing the declaration of title in their favour to come back to court to seek the reliefs of forfeiture and recovery of possession. See Onia v. Onyia (1989) 1 NWLR (Pt.99) 514 at 532. See also Archibong v. Ita (2004) 2 NWLR (Pt.858) 590; where the supreme observed:
“It is perfectly legitimate or right, for example in a land suit, for a person who has had a previous suit in his favour either to use it as foundation for an action in trespass or to go to court again to add something new to what he already got in the previous judgment in his favour.”
The learned trial judge analyzing the above quotation observed:
“The above quote in italics refers to an action in trespass or something new. By ejusden generis rule of interpretation words following must relate to the preceding words. It therefore means that “something new” relates to action in trespass”
With all due respect to the learned trial judge, there is no justification for this complicated and technical interpretation of the simple and clear words of the learned J.S.C which in its ordinary meaning covers the situation here. In land matters, a person who already has a previous judgment in his favour can go back to court using that previous judgment as the foundation for an action in trespass or to add (claim) something new to what he already got in the previous judgment. The appellants herein got a judgment in HOS/32/86 giving them title to the land in dispute and declaring the respondents to be customary tenants of the appellants. The appellants then came back to court to add something new to what they already got from the court. What is that something new? A claim against the respondents for forfeiture of their customary tenancy. Of course if such a claim was part of the original suit, then of course the respondent would be right to set up the defence of estoppel.
But a careful perusal of the Supreme Court judgment in SC. 127/1996 at page 19 of the record (confirming the court of Appeal judgment which confirmed the High court judgment in HOS/32/86) would show that the issue of forfeiture did not arise at all in the case.
In their brief of argument, the respondents kept harping on the issue of possession. Their contention is that possession was the issue in both suits. I do not agree. In the first suit, the appellants sued for damages for trespass and injunction. Possession arose in the sense that if the respondents had no right to be on the land, then of course the claim for damages for trespass would succeed and the respondents would be restrained from further trespass, thereby loosing possession. The court found they had a right to be in possession because they are customary tenants of the appellants. In view of the fact that the respondents continued even after the court judgment declaring the appellants owners of the land to challenge the title of their over-lord by continuing to build structures on the land in dispute without the consent of the appellants and by their failure to pay Ishakole, the appellants came back to court to ask for forfeiture. If after the judgment in the first case, the respondents had accepted their position as customary tenants and kept to the terms of the grant, there may have been no need for the second suit. The relevant portions of the amended statement of claim would throw more light on this point.
“44. When all protests to stop the Defendants’ misconduct failed, the Plaintiffs filed an action against the Defendants in suit HOS/32/86 which was decided on 30/6/89 wherein the entitlement of the plaintiff as customary owners to the statutory right of occupancy over the land in dispute was affirmed by the court. The plaintiffs plead the said judgment and will rely on it at the trial of this action.
45. In spite of the judgment the Defendants continued to build and still building houses on the land and allocating parcels of it to their people for building and other purposes contrary to the terms of their grant which was for farming purposes only, despite vehement objection by the plaintiffs.
46. The Plaintiffs say the defendants are customary tenants of the Plaintiffs on the land in dispute.
47. The Plaintiffs say that the Defendants are estopped from denying the customary ownership of the land in dispute by the Plaintiffs.
48. The Plaintiffs say that the Defendants are estopped from denying that the Plaintiffs’ ancestors granted the land in dispute to the Defendants’ ancestor for farming purposes on payment of annual Ishakole.
49. The Plaintiffs say that the activities of the Defendants and other members of the Aagba community in building permanent structures on the land in dispute are in breach and utter disregard of the terms of their tenancy and amounted to challenges to the ownership by plaintiffs of the land in dispute. The Plaintiffs continued to object to these activities but the Defendants remained adamant.
50. The Defendants have intermittently refused to pay Ishakole and between 1974 and 1988 refused to pay any Ishakole to the Plaintiffs in spite of repeated demands and have since been laying claims to ownership of the land in dispute.
51. The Defendants have by their failure to pay Ishakole and continued acts of gross misconduct by building houses on the land in dispute incurred forfeiture.
Unless their tenancy is forfeited and possession recovered and the Defendants are restrained, they will continue to build houses on the land in utter disregard to the reversionary rights of the plaintiffs
52(a)The Plaintiff in this case plead the judgments of the Court of Appeal, Ibadan and that of the Supreme Court, Abuja in a sister case in Suit No. CA/I/16/90 and SC. 127/1996 – OBA FELIX ABIDOYE & ORS VS. OBA JACOB ALAWODE & ORS and other relevant documents and will rely on them at the trial of this suit.”
From the above averments, it is evident that the appellants could not have claimed for forfeiture in the first suit as the respondents were then insisting that the land in dispute belonged to them. There was always the possibility and hope that if ownership was settled, the respondents would sue for peace and go for negotiation. That did not happen. The respondents continued in breach of the terms of grant, hence the present suit for forfeiture. The learned trial judge was in error to have held that the appellants’ suit was caught by the plea of estoppel per rem judicatan. The issues decided in the previous suit 127/1996 are not the same as the issues for consideration in this suit. This appeal succeeds and is allowed. The ruling of the High Court of Osun State, Ikirun in suit no. HIK/4/88 delivered on 6/3/07 is hereby set aside. It is ordered that the suit be re-listed on the cause list for hearing on the merits.
Costs of N30, 000. 00 are awarded against the respondents.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the benefit of reading in draft the judgment of my learned brother, Iyizoba, JCA just delivered. I agree with the reasoning and conclusion therein.
By their Amended Statement of Claim dated 31/7/2001 the appellants herein as plaintiffs sought the following reliefs against the defendants/respondents: forfeiture of their customary tenancy in respect of the appellants’ land situate at Ororuwo formerly Ifelodun Local Government Area of Osun State, recovery of possession and injunction. In support of their claim they relied on a previous judgment obtained in their favour in Suit No. HOS/32/86 which was confirmed all the way up to the Supreme Court in Appeal No. SC/27/1996 delivered on 2/3/2001.
In the earlier suit they sought a declaration that they were entitled by customary derivation to statutory Right of Occupancy in respect of the land at Ororuwo, Ifelodun Local Government Area of Osun State, general damages for trespass and injunction. The High Court granted the declaration in their favour but refused the claim for damages and injunction on the ground that the respondents were customary tenants of the appellants.
In the Statement of Defence the respondents raised the issue of res judicata and by a motion on notice sought to have the issue determined as a preliminary point of law. The court heard arguments and ruled in favour of the respondents.
For a successful plea of estoppel per rem judiatam the following factors must co-exist: (a) the parties or their privies must be the same in both the previous and present proceedings; (b) the res of the subject matter of the litigation in the two cases must be the same; (c) the decision relied upon to support the plea of estoppel must be valid, subsisting and final; and (d) the court that gave the previous decision relied upon to sustain the plea must be a court of competent jurisdiction. See: Oloruntoba-Oju vs. Abdul-Raheem (2009) 13 NWLR (1157) 83 at 132 B – E; Ibero v. Ume-Ohana (1993) 2 NWLR (277) 510 at 520.
There is no doubt that it is in the public interest that there should be an end to litigation.
My learned brother in the lead judgment has meticulously examined the parties, subject matter and reliefs claimed in the two suits.
I agree that the subject matter is not the same.
In the case of: Osuji vs. Ekeocha (2009) 16 NWLR (1166) 81 at 112 C – D; (2009) LPELR – 2816 (SC) the nature of statutory reliefs in relation to title to land was defined thus:
“The purpose of a declaratory relief sought from court is essentially an equitable relief, in which the plaintiff prays the court in exercise of its discretionary jurisdiction to pronounce an existing state of affairs in law in his favour as may be discernable from the averments in the Statement of Claim. A declaratory relief is not confined to cases where there is a complete or subsisting cause of action but may be employed in all cases where the plaintiff conceives he has a right.”
(Emphasis supplied)
See: Adigun v. A.G. Oyo State (1987) 1 NWLR (53) 678; Igbokwe vs. Udobi (1992) 3 NWLR (228) 214; Dantata vs. Mohammed (2007) 7 NWLR (664) 176 referred to.
In the earlier suit the appellants were granted a declaration that they were entitled to a statutory right of occupancy in respect of the land in dispute. Their other claims failed because the respondents were found to be their customary tenants on the land and could not therefore be adjudged trespassers.
Having obtained a pronouncement as to their rights in the previous suit they were perfectly entitled to use the said pronouncement as the spring board from which to seek the reliefs which they now claim. See: Eyo & Ors. Vs. Okpa & Anor (2009) LPER CA/C/130/2008 at 23 A – C; (2010) 6 NWLR (1191) 611 at 634 A – B; Archibong vs. Ita (2004) 2 NWLR (858) 590; Ibezim vs. Ndulue (1992) 1 NWLR (216) 153 at 165 B – E. For these and the fuller reasons contained in the lead judgment, I also allow the appeal. I abide by the consequential orders contained in the lead judgment including the order for costs.
CHIMA CENTUS NWEZE, J.C.A.: I had the advantage of reading the draft of the leading judgement which my learned brother, Iyizoba JCA, just delivered now. I am persuaded by the reasoning and the telling conclusion.
I agree with my Lord that Ibero v Ume-Ohama (1993) 2 NWLR (Pt 277) 510 restated the usual conditions for the invocation and reliance of estoppel per rem judicatam. These conditions, which trace their juridical pedigree to authorities of remarkable antiquity, have been pronounced upon in many cases.
These cases are notable for their striking unanimity both in English and Nigerian laws, Spencer Bower and Turner, Res Judicata (2nd edition) paragraph 458, page 380; Henderson v Henderson (1843) 3 Hare 100, 114; Hoystead v Comm of Taxation (1926) AC 155, 17; Fidelitas Shipping Co. v. V.I.O. Exportchleb (1966) 1 QB 630, [England].
The Nigerian cases include: Savage v. Uwaechia (1972) ANLR 255; Ijale v. A.G. Leventis & Co. Ltd. (1961) ANLR 752; Ogbogu v. Ugwuegbu (2003) Co. NWLR (pt. 827) 189, 210; Ogbogu v. Ndiribe (1992) 6 NWLR (pt. 245) 40; Ezenwani v Nwordi [1986] 4 NWLR (pt 330 27).
There are a host of others. They include: Ekpoke v Usilo [1978] 6-7 SC 187; Unity Bank Plc and Anor v Bouari [2008] 2 SCM 193; Agbgunleri v Depo and Ors [2008] 1 SCM 1, [Nigeria].
It is for these reasons, and the more elaborate reasons contained in the leading judgement, that I, too, shall allow this appeal. I abide by the consequential orders in the leading judgement.
Appearances
AYO LAOGUN ESQ. with KAYODE ADELAJA For Appellant
AND
FEMI AYANDOKUN For Respondent
