TAIYE OSHOBOJA V. ALHAJI SURAKATU AMIDA & ORS.

TAIYE OSHOBOJA V. ALHAJI SURAKATU AMIDA & ORS.

(2009) LCN/3657(SC)

In the Supreme Court of Nigeria

Friday, December 11, 2009


Case Number: SC.54/2002

 

JUSTICES:

DAHIRU MUSDAPHER, JUSTICE, SUPREME COURT

ALOMA MARIAM MUKHTAR, JUSTICE, SUPREME COURT

IKECHI FRANCIS OGBUAGU, JUSTICE, SUPREME COURT

MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE, JUSTICE, SUPREME COURT

JOHN AFOLABI FABIYI, JUSTICE, SUPREME COURT

BETWEEN

APPELLANTS

TAIYE OSHOBOJA(For himself and as representative of Oshoboja Family of Ijegun

AND

RESPONDENTS

1.ALHAJI SURAKATU AMIDA

2.JIMOH OPEBIYI

3.MUFUTAU OPEBIYI(For themselves and as of Fagbile Family of Ijegun) representatives

RATIO

WHETHER THE SUPREME COURT CAN INTERFERE IN CONCURRENT FINDINGS OF 2 LOWER CPURTS

As also stated in this Judgment, the court below, in a unanimous Judgment, dismissed the appeal of the Defendants/Appellants. In other words, there are concurrent findings of fact or Judgments, in favour of the Plaintiffs/Respondents by the two lower courts. The attitude of this Court in the circumstances, has been stated and re-stated in a line of decided authorities. In other words and as a matter of policy which is now firmly established, this Court will not disturb or interfere with the concurrent findings of two lower courts unless, in exceptional and very clear circumstances. These include inter alia, substantial error on the face of the Records, or the decision is not supported by evidence or the decision is reached on the application of wrong principles of law or procedure which had been violated or inadmissible evidence or no evidence at all, or in respect of findings which are perverse, unreasonable or unsound. See the previous and perhaps, recent judgments or cases of this Court – Chikwendu v.Mbamali & anor:.(1980) 3 & 4 S. C. II; Enang v. Adu (1981) 11/12 S.C. 25 @ 42; (1981) 11-12 SC (Reprint) 17 @ 27; Nwadike & 2 ors. v. Ibekwe & 2 ors. (1987) 4 NWLR (Pt.67) 718 @ 740; (1987)12 S.C. 14 – per Oputa, JSC who stated inter alia, that:

‘an Appellant appealing to this Court and seeking to upset two concurrent findings in favour of the Respondent is thus faced with an uphill task of considerable magnitude”;

Layinka & anor. v. Makinde & 5 ors. (2002) 5 S. C. (Pt. 1) 109 @ 113 – -per Belgore, JSC, (as he then was later CJN) citing several other cases therein; Qgbu v. Wokoma (2005) 14 NWLR (Pt.944) 118; (2005) 7 S.C. (Pt.II) 123 & 136; (2005) 7 SCNJ. 297 just to mention but a few.

I note that the Appellants, have not shown any of these reasons or circumstances in the instant appeal and I have not seen any except that the Appellants, are hell bent on a repetition and canvassing of the very issues which had been unequivocally and sufficiently, dealt with by the two lower courts. This Court will not indulge them. It will not disturb or interfere. PER I.F OGBUAGU J.S.C

ESTOPPEL PER REM JUDICATA

Again, there is the settled or well known latin maxim “interest Reipublicae ut sit finis litium” – there must, in the public interest be an end to litigation. See the cases of Aro v. Fabolude (1983) 2 S.C. 75 @ 83; (1983) NSCC Vol. 14 P. 43 @ 45, – per Aniagolu, JSC, where it is stated inter alia, thus:

 

‘ ….. public policy demands that there should be an end to litigation once a court of competent jurisdiction has settled, by a final decision, the matters in contention between the parties”

and Nwadike & ors. v. Ibekwe(supra).

In the case of Prince Yaya Adigun &_ors. v. Secretary, Iwo Local Government (1999) 5 S.C.(Pt.III) 1 @ 8. Achike, JSC, (of blessed memory) stated inter alia, as follows:

“Not only must the court not encourage prolongation of a dispute, it must also discourage prolongation of litigation”

See also the cases of Nyambi & 6 ors. v. Osadim & anor. (1997) 1 SCNJ. 182 @192 per Onu, JSC, citing the cases of Prince Adigun & 2 ors. v.vAttorney-General of Oyo State 7 18 ors. (No.2) (1987) 2 NWLR (Pt.55) 197 @ 231 which is also reported in (1987) 3 SCNJ. 118 and Akanbi & 3 ors. v. Alao & anor. (1989) 3 NWLR (Pt. 108) 116 @ 140; (1989) 5 S.C. 1; Okukuje v. Akwido (2001) 1 SCNJ. 245 @ 282 citing the case of Chief Omokhafe v. Chief Esekhomo (1993) 8 NWLR (t. 309) 58 @ 67 just to mention but a few.

Of equal importance, is also the well established principle of law which applies both in civil and criminal cases that no one/man shall/should be or ought to be vexed twice on the same ground or for one and the same cause of action or the same issues. It is expressed in also the latin maxim of “nemo debet bisvexari, si constat curiae quod sit pro una et eadem causa”. See the cases of Aro v. Fabolude; Chief Omokhaefe v. Chief Esekhomo (both supra); Chief Adomba & 3 ors. v. Odiese & 3 ors. (1990) 1 NWLR (pt. 125) 165 @ 178; (1990) 1 S.C.N.J. 135 to mention but a few. PER I. F. OGBUAGU, JSC

 

Delivered by I. F. OGBUAGU, JSC.)

 

This is an appeal against the decision of the Court of Appeal, Lagos Division (hereinafter called “the court below”) delivered on 20th June, 2000 affirming the Judgment of the High Court of Lagos State Judicial Division presided over by Obadina, J. (as he then was) delivered on the 19th of December, 1996 which found in favour of the Respondents.

 

Dissatisfied with the said decision, the Appellants have further appealed to this Court initially on six (6) Grounds of Appeal but they later file an Amended Notice of Appeal with fourteen (14) Grounds of Appeal. They have formulated ten issues for determination. They read as follows:

 

‘(1) whether the lower cours (sic) were right in law in granting absolute title to the respondents who had admitted that their title is burdened by the alleged customary tenancy of the appellants. Ground 7.

 

(2)     whether the respondents were entitled to a writ of possession when no title was given to them in 1984, and when they did not also claim possession and when the reliefs claimed by them were merely declaratory. Ground 8.

 

(3)     whether the principles of resjudicta or issue estoppel were fulfilled in this case. Grounds 1, 2, 10, 11 and 12.

 

(4)     whether the judgments of the lower courts were not wholly against the weight of admissible evidence. Ground 3.

 

(5)     whether miscarriage of justice has not been occasioned in this case. Ground 13.

 

(6)      whether the acceptance of the evidence of witnesses in a previous proceeding that had been set aside by the Supreme Court was not contrary to the principles enunciated in Alade v. Aborisade (1960) 1 NSCC page 111. Ground 9.

 

(7)     whether the respondents’ action was not statute barred by virtue of section 12 of the Limitation Law of Lagos State. Ground 5.

 

(8)     was the tenancy agreement between Oshoboja family and Amida Opebiyi of Fagbile family not binding on Fagbile family when it was in respect of the same land. Ground 14.

(9)     whether or not Order 4 Rule 8 of the Judgment enforcement Rules Lagos State, was/is not applicable to the plaintiffs/respondents’ action. Ground 6.

 

(10) whether or not the Oshoboja family could have appealed against the dismissal of AB/29/55 or could have brought a cross-action against the said Suit. Ground 4”.

 

On their part, the Respondents have formulated two (2) issues for determination, namely:

 

‘1. Whether from the totality of the findings in this suit, and the Genesis of this case, as revealed in Exhibits A, B, C, C1, D, E, F; g, H and HI, which are all certified true copies and orders of various court (sic) more particularly the Supreme Court decisions in 1966, 1989 and 1992 in Suit Nos. AB/24/55 and AB/29/75, was the High Court and the Court of Appeal right in setting aside the decision in Suit No. AB/29/55?

 

  1. Whether the Respondent (sic) herein are entitled to a declaration of title to the piece and parcel of land, the subject matter of this Appeal?”

 

When this Appeal came up for hearing on the 29th September, 2009, Alhaja (Mrs.) Ayoola – the leading learned counsel for the Appellants, adopted their main and Reply Briefs. He/she urged the Court to allow the appeal. Fasino, Esq. – leading counsel for the Respondents, also adopted their Brief and he urged the Court to dismiss the appeal. Thereafter, Judgment was reserved till today.

 

The facts of the case leading to this appeal as appear in the Records and in fact, as substantially stated in both Briefs of the parties, are not in dispute. I note that the two lower courts, also found as a fact, these facts in their respective well considered Judgment. They are as follows:

 

In the Suit in the trial High Court of Lagos State Suit No. ID/473/81 which was remitted back for re-trial in that court by this Court in its Judgment of 17th July, 1992, the Plaintiffs/Respondents in their 4th Amended Statement of Claim, claimed as follows:

 

‘1.      An order setting aside the Judgment of the Honourable Justice John Taylor dated the 2nd day of June, 1958 in Suit No. AB/29/55, Tesi Opebiyi, for himself and as representative of the other members of the Fagbile Family land of Ijegun as Plaintiffs and Kelani Ogunleru and Shittu Oshoboja for themselves and as representatives of Koaki Family of Ijegun as Defendants, as it will amount to a fraud on the Plain tiffs and result in a denial of Justice to them to allow the said judgment to remain subsisting when the basis or consideration for its grant no longer exists and was found by the Supreme Court of Nigeria never to have existed by setting aside the judgment in Suit No. AB/24/55 between the same parties.

 

  1. A declaration that the Plaintiffs are the owners in law and equity of the piece or parcel of land lying, situate and being at Ijegun, Isheri-Oshun in Alimosho Local Government of Lagos State, particularly described as the area verged green in the composite plan No. JO25/93 dated 05 October, 1993 prepared by Olusola Ogunsanya registered surveyor, the subject-matter of this case by virtue of customary ownership and traditional history.
  2. A declaration that the Plaintiffs are the persons entitled to a statutory right of occupancy deemed to be granted by the Military Governor of Lagos State by virtue of the Land Use Act, 1978”.

 

After hearing evidence, in his said Judgment, the learned trial Judge, granted all the reliefs/claims of the Plaintiffs/Respondents. Aggrieved by the said Judgment, the Defendants/Respondents, appealed to the court below. In that court, each party, formulated five (5) issues for determination. In a unanimous decision, the court below as earlier stated in this Judgment, dismissed the appeal and affirmed the said Judgment of the trial court, hence this further or instant appeal.

 

I note that the two lower courts stated in their respective Judgment, the genesis of the dispute between the parties. For purposes of emphasis and for the avoidance of doubt, I will state or repeat them in this Judgment as has been done by the parties in their respective Brief of Argument.

 

In 1955, the Defendants/Appellants in Suit No. AB/24/55 sued the Plaintiffs/Respondents over the ownership and possession of the land in dispute. In Suit No. AB/29/55, the Plaintiffs/Respondents, sued the Defendants/Appellants for declaration of title over the same piece or parcel of land. Both suits came up for hearing before the same Judge. Counsel for the parties agreed with the approval of the trial Judge – -Taylor, J. (as he then was), that Suit No. AB/24/55 should be heard first being the first in time as a test case and that Suit No. AB/29/55 shall abide the result in AB/24/55. In other words, that the decision/Judgment in Suit No. AB/24/55, shall be binding on the Plaintiffs/Respondents in respect of their Suit No. AB/29/55. Suit No. AB/24/55, then proceeded to trial. Evidence was led by the parties. On 2nd June, 1958. Taylor J. (as he then was), gave judgment in favour of the Defendants/Appellants and simultaneously, dismissed the case of the Plaintiffs/Respondents. The Plaintiffs/Respondents, appealed to this Court in Suit No. AB/24/55.

 

They did not appeal against the dismissal of their own suit AB/29/55. In this Court, the Plaintiffs/Respondents’ appeal, was successful and the suit was sent back to the High Court for re-trial. The suit was re-tried by Beckley, J. and the Plaintiffs/Respondents, won and the said suit was dismissed on 6th November, 1981. The Defendants/Appellants, appealed to the Court of Appeal which allowed their appeal and set aside the judgment of Beckley. J. The Plaintiffs/Respondents again, appealed to this Court which set aside the Judgment of the Court of Appeal and restored the said Judgment of Beckley. J. This Court, noted that in view of the earlier agreement of the parties before Taylor, J. (as he then was) that the decision, was still subsisting. That being the case, the Plaintiffs/Respondents, therefore, instituted the action which is the subject-matter of the instant appeal seeking among other things, for the vacation of the said judgment of Taylor J. From the Records, at the trial, three (3) witnesses testified for the Plaintiffs/Respondents, while six (6) witnesses testified for the Defendants/Appellants. After hearing addresses from the learned counsel for the parties, the learned trial Judge, after thoroughly evaluating the evidence including the documentary evidence before him and considering the addresses of the learned counsel for the parties, found in favour of the Plaintiffs/Respondents and granted the reliefs they claimed. In other words, the learned trial Judge, resolved in favour of the Plaintiffs/Respondents, all the issues raised before him including the issue of estoppel or res judicatam.

 

As also stated in this Judgment, the court below, in a unanimous Judgment, dismissed the appeal of the Defendants/Appellants. In other words, there are concurrent findings of fact or Judgments, in favour of the Plaintiffs/Respondents by the two lower courts. The attitude of this Court in the circumstances, has been stated and re-stated in a line of decided authorities. In other words and as a matter of policy which is now firmly established, this Court will not disturb or interfere with the concurrent findings of two lower courts unless, in exceptional and very clear circumstances. These include inter alia, substantial error on the face of the Records, or the decision is not supported by evidence or the decision is reached on the application of wrong principles of law or procedure which had been violated or inadmissible evidence or no evidence at all, or in respect of findings which are perverse, unreasonable or unsound. See the previous and perhaps, recent judgments or cases of this Court – Chikwendu v.Mbamali & anor:.(1980) 3 & 4 S. C. II; Enang v. Adu (1981) 11/12 S.C. 25 @ 42; (1981) 11-12 SC (Reprint) 17 @ 27; Nwadike & 2 ors. v. Ibekwe & 2 ors. (1987) 4 NWLR (Pt.67) 718 @ 740; (1987)12 S.C. 14 – per Oputa, JSC who stated inter alia, that:

 

‘an Appellant appealing to this Court and seeking to upset two concurrent findings in favour of the Respondent is thus faced with an uphill task of considerable magnitude”;

 

Layinka & anor. v. Makinde & 5 ors. (2002) 5 S. C. (Pt. 1) 109 @ 113 – -per Belgore, JSC, (as he then was later CJN) citing several other cases therein; Qgbu v. Wokoma (2005) 14 NWLR (Pt.944) 118; (2005) 7 S.C. (Pt.II) 123 & 136; (2005) 7 SCNJ. 297 just to mention but a few.

 

I note that the Appellants, have not shown any of these reasons or circumstances in the instant appeal and I have not seen any except that the Appellants, are hell bent on a repetition and canvassing of the very issues which had been unequivocally and sufficiently, dealt with by the two lower courts. This Court will not indulge them. It will not disturb or interfere.

Again, there is the settled or well known latin maxim “interest Reipublicae ut sit finis litium” – there must, in the public interest be an end to litigation. See the cases of Aro v. Fabolude (1983) 2 S.C. 75 @ 83; (1983) NSCC Vol. 14 P. 43 @ 45, – per Aniagolu, JSC, where it is stated inter alia, thus:

 

‘ ….. public policy demands that there should be an end to litigation once a court of competent jurisdiction has settled, by a final decision, the matters in contention between the parties”

 

and Nwadike & ors. v. Ibekwe(supra).

 

In the case of Prince Yaya Adigun &_ors. v. Secretary, Iwo Local Government (1999) 5 S.C.(Pt.III) 1 @ 8. Achike, JSC, (of blessed memory) stated inter alia, as follows:

 

“Not only must the court not encourage prolongation of a dispute, it must also discourage prolongation of litigation”

 

See also the cases of Nyambi & 6 ors. v. Osadim & anor. (1997) 1 SCNJ. 182 @192 per Onu, JSC, citing the cases of Prince Adigun & 2 ors. v.vAttorney-General of Oyo State 7 18 ors. (No.2) (1987) 2 NWLR (Pt.55) 197 @ 231 which is also reported in (1987) 3 SCNJ. 118 and Akanbi & 3 ors. v. Alao & anor. (1989) 3 NWLR (Pt. 108) 116 @ 140; (1989) 5 S.C. 1; Okukuje v. Akwido (2001) 1 SCNJ. 245 @ 282 citing the case of Chief Omokhafe v. Chief Esekhomo (1993) 8 NWLR (t. 309) 58 @ 67 just to mention but a few.

Of equal importance, is also the well established principle of law which applies both in civil and criminal cases that no one/man shall/should be or ought to be vexed twice on the same ground or for one and the same cause of action or the same issues. It is expressed in also the latin maxim of “nemo debet bisvexari, si constat curiae quod sit pro una et eadem causa”. See the cases of Aro v. Fabolude; Chief Omokhaefe v. Chief Esekhomo (both supra); Chief Adomba & 3 ors. v. Odiese & 3 ors. (1990) 1 NWLR (pt. 125) 165 @ 178; (1990) 1 S.C.N.J. 135 to mention but a few.

 

I note from the Records and paragraph 1.5 pages 5 to 7 of the Respondents’ Brief firstly, that the suit leading to the instant appeal, is a re-trial of the same suit which the Respondents had filed in the same High court of Lagos State which came up before Longe, J. Upon an application by the Appellants that it should be struck out because according to them, it disclosed no reasonable cause of action, Longe, J. accordingly, struck out the suit/action. The Respondents appealed to the Court of Appeal which allowed the appeal and held that the Statement of Claim, disclosed a reasonable cause of action. Instead of remitting the case back to the High Court for re-trial, it purported to act under Section 16 of the Court of Appeal Act, 1976 and granted the relief sought by the Respondent’s in their Statement of Claim and set aside the said Judgment of Taylor, J. (as he then was) in Suit AB/29/55. The Appellants, then appealed to this Court and submitted that the invocation or application of Section 16 of the said Act, was wrong in law in that as no Statement of Defence, was filed, the case was not ripe for hearing and that judgment could not have been delivered. This Court, sustained the argument and allowed the Appeal in part and remitted the case to the High Court for the Statement of Defence to be filed and evidence to be called by the parties. See the case of Taiye Oshoboja v. Alhaji Surakatu I. Amuda & 2 ors. (1992) 6 NWLR (Pt.250) 690; (1992) 7 SCN]. 317.

Secondly, almost the same or similar issues (some differently worded or couched by the parties in the two lower courts), were formulated and distinctly and thoroughly dealt with by the two lower courts. In the trial court, the present or instant Issue 3 of the Appellants in respect of Estoppel, was treated or dealt with by the learned trial Judge at pages 97 up to 103 of the Records. His Lordship, in resolving, the said issue, gave his reasons for finding in favour of the Respondents. In the court below, the same issue was thoroughly discussed or dealt with at pages 421 to 427 – per Oguntade, JCA (as he then was).

 

In respect of issue 4 of the Appellants which is substantially the same with Issue 1 of the Respondents both at the trial court at page 87 of the Records and in this Court although differently worded, the learned trial Judge, dealt with the same again exhaustively, at pages 89 to 95, 99 to 102 of the Records. His Lordship, found as a fact that both parties, and the identity of the land in dispute, were/are one and the same. He further found as a fact that both parties, claimed ownership which involves possession. As a matter of fact, His Lordship discredited the 1st and 2nd defendant/Appellants witnesses and held that their evidence was contradictory and unsatisfactory and unreliable. The court below affirmed the Judgment of the trial court.

 

Issue 2 of the Appellants, in my respectful view, has bearing so to say/speak, substantially, with the said issues 4, 5, 6 and 8 of the Appellants and Issue 2 of the Respondents. I have noted that the two lower courts, found that both parties, claimed ownership of the land in dispute.

 

As regards Issue 7 of the Appellants, the learned trial Judge at pages 108 and 109, found as a fact and held that Order 4 Rule 8 of the Judgment (Enforcement) Rules of Lagos State Cap. 12, Laws of Lagos State of Nigeria 1973, is not applicable to the case. The Appellants raised the same issue in their issue 3 in the court below. After dealing with it at pages 427 and 428 of the Records, it held that the suit was/is not statute-barred. Significantly, the Respondents in the suit leading to this appeal, sought for an order of court to set aside, the said Judgment of Taylor, J. and not to enforce or execute the said judgment in respect of Suit AB/29/55. Period!

 

In respect of Issue 9 of the Appellants the same issue, which is at page 88 of the Records, was dealt with by the learned trial Judge at page 111 thereof and he held rightly in my view, that the Rule applies to enforcement of Judgments and deals with Judgments that are executor and not those for declarations. The court below, at pages 428 and 429 of the Records, held inter alia, as follows:

 

 

 

“There is nothing in the above Rule 18 (sic) Order 4 which makes it applicable to proceedings brought to set aside a judgment. Rather, the rule in my view for only applies to processes brought for the execution of a judgment. I therefore agree with the reasoning of the lower court on the point”.

 

In respect of Issues 6 and 10 of the Appellants, in my respectful view, I hold that they are, non-issues having regard to all the circumstances of this case above discussed. This includes as I noted in this judgment, that the land in dispute is one and the same – i.e. the identity is/was not in dispute. What is more, as noted by me earlier in this Judgment, the court below affirmed the said Judgment of Beckley, J. – on 11th July, 1984 but against that of Obadina, J, (as he then was). The issue is therefore, completely misconceived.

 

Finally, I note that and as rightly stated in the Respondents’ Brief, there is nowhere either in the claim of the Respondents and I add or in the Records, where it was alleged or pleaded or admitted that the Respondent’s title;

“is burdened by the alleged customary tenancy of the Appellants”.

 

More importantly, this issue was not raised or canvassed by the Appellants in any of their issues for determination in the two lower courts. I hold that they cannot now raise it. They CANNOT now, regard or parade themselves, as “customary tenants” of the Respondents. This is because, right from 1955 and their said suit which was eventually dismissed by this Court, they had claimed ‘ownership’ of the land in dispute. This Court, had in effect, upheld the declaration of title claimed by the Respondents. When the Appellants in their said suit AB/24/55 claimed for possession of the land in dispute, it was/is a concession or an admission, that they are not in possession of the land in dispute.

 

The Appellants perhaps, enjoy or have ‘gluttony’ for unwarranted and prolonged litigation of a dispute or subject-matter that this Court had long pronounced effectively upon. In 1992, this case had lasted 35 years. It is now about 54 years from when it started. No party is entitled to have such gluttony. It is regrettable and perhaps, unfortunate. But this has boomeranged. They have again, lost out so to say/speak. As a matter of fact, I find as a fact and hold, with the greatest respect to the learned counsel for the Appellants, that this appeal, is unmeritorious and is grossly misconceived. It fails and it is accordingly dismissed. I hereby affirm the decision of the court below affirming the Judgment of the trial court.

 

Costs follow the event. I wish I could have increased the costs but as it is, the Respondents are entitled to costs of N50,OOO.OO (Fifty Thousand Naira) payable to them by the Appellants.

 

I.F. OGBUAGU,

 

JUSTICE, SUPREME COURT.

 

Counsel:

 

Alhaja (Mrs.) R.O. Ayoola, for the Appellants, with him/her S. Abimbola, Esqr.

 

Folami Fasino, Esqr., for the Respondents, with him Segun Akintan, Esqr.

 

 

 

JUDGMENT

 

(Delivered by M. S. Muntaka – Coomassie, JSC)

 

I have read before now the judgment rendered by my learned brother, Hon. Justice Ikechi Francis Ogbuagu JSC just delivered. Two important issues among others stand out clearly in this judgment, namely.

 

(i)    There must be an end to litigation in the public interest – “Interest Rei publicae ut sit finis litium”. – Akanbi V. Alao (1989) 3 NWLR (pt. 108) p.118/140 per Craig JSC. It was also stressed by the Supreme Court which made similar statement in the case of John Omokhafe V. Esekhome (1993) 8 NWLR (pt. 309) p. 58.

 

 

 

‘It is an application of the rule of public policy and in the interest of the common good that there should be an end to litigation. This is covered by the well established doctrine, interest rei publicae ut sit finish”.

 

See Okukuje V. Akwido (2001) 1 SCNJ 245 at 282.

 

Another interesting point brought out by my learned Lord Ogbuagu JSC is the issue of concurrent judgment of the two lower courts. The policy is that it will be very difficult for this court to interfere or disturb the concurrent findings of two lower courts unless, in exceptional and very clear circumstances; that is where there is substantial error on the face of the records, or the decision is not supported by evidence or is perverse, unreasonable or unsound.

 

In this appeal the court below affirmed the decision of the trial court and dismissed the appeal of the defendants/appellants. The decisions of the trial court were sound and never perverse or unreasonable – Chikwendu V. Mbamali and Anor (1980) 3 & 4 SC 11.

 

 

 

In Ogbu V. Wokoma (2005) 7 SCNJ 299 at 316 Akintan JSC stated that:-

 

“There is no doubt that this appeal is against the concurrent findings of facts by the trial court and the Court of Appeal. The position of the law is that such findings of facts should not be disturbed by this court unless there are cogent and compelling reasons shown to justify disturbing those findings of facts. See Okeke V. Agbodike (1999) 14 NWLR (pt. 638) 215 at 222 Ibenye V. Agwu (1998) 11 NWLR (pt. 574) 372; Alakija V. Abdulai (1998) 6 NWLR (pt. 552) 1; and Chukwu V. Nneji (1990) 6 NWLR (pt. 156) 363 ….”.

That being the case, I adopt the reasoning and conclusions of my learned brother Ogbuagu JSC as mine. I share the annoyance expressed in the lead judgment by his Lordship to the effect that the matter is now about 54 years old. I too hold that this appeal clearly lacks merit. It is therefore dismissed. The decision of the court below affirming that of the trial court is further affirmed by this court. I endorse the order as to costs in favour of the respondents.

 

S. MUNTAKA-COOMASSIE,

 

JUSTICE, SUPREME COURT

 

Counsel: –

 

Alhaja (Mrs) R. O. Ayoola, for the Appellants, with her S. Abimbola, Esq.,

 

Folami Fasino, Esq., for the Respondents with him, Segun Akintan Esq.

 

 

 

JUDGMENT

 

(Delivered by J.A. FABIYI, JSC)

 

I have had a preview of the judgment just handed out by my learned brother, Ogbuagu, JSC. Without any hesitation, I agree with the reasons advanced to arrive at the conclusion that the appeal is devoid of merit and should be dismissed.

 

The contest between Oshoboja family of Ijegun and Fagbile family of Ijegun over the same piece of land can now be said to be fairly chequered. Presently, there are five (5) decisive judgments between the same parties/privies in relation to the same subject matter to wit: land. This court in 1966 ordered a retrial of Suit No. AB/24/55 filed by the appellants herein and Suit No. AB/29/55 filed by the respondents herein at the trial court before another judge other than Taylor, J. (as he then was). The suits were re-heard by Beckley, J. who found in favour of the respondents herein. This court affirmed same in 1981.

 

This court on 11th July, 1984 ordered a retrial of Suit No. AB/29/55 on the premise that the dismissal by Taylor, J. of same cannot stand in view of its judgement. Matter went before Obadina, J. (as he then was) and in 1996, he granted a declaration of title to the respondents and set aside the decision of Taylor, J. in Suit No. AB/29/55.

 

The appellants herein appealed to the Court of Appeal which on 20th June, 2006, confirmed the judgment of Obadina, J. This is a further appeal to this court.

 

The appellants who have consistently lost out in the long-drawn contest attempted to rake up an innocuous point which was not canvassed in the two lower courts. Despite the fact there is no where the respondents claimed or pleaded that ‘their title is burdened by alleged customary tenancy of the appellants’, the appellants brought it up and tried to make a big deal out of it. Right from 1955, the appellants, who laid claim to ‘ownership’, cannot, on appeal, turn round to attempt to hide under the cover of being ‘customary tenants’. This is because there should be consistency in prosecuting a suit in the trial court as well as in appellate courts. There should be no somersault. Refer to Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248.

 

In a rather sober fashion, the appellants urged this court to depart from its decision in Amida v. Oshoboja (1984) 7 SC 68 pursuant to Order 6 Rule 5 (4) of the Supreme Court Rules. It is their issue No.9

 

I strongly feel that the appellants have an uphill task to perform in this respect. This is because this court would only be persuaded to depart from its previous decision in the following circumstance:-

 

(a) If the previous decision is proved wrong.

 

(b) If the previous decision is given per incuriam.

 

(c) If the previous decision is proved to be perpetuating injustice.

 

This principle of law is so because this court has a twin duty to wit:

  1. To see that justice is founded on the correct view of the law and that justice is not slaughtered on incorrect interpretation and application of the law and equity.

 

  1. To see to the essence of the pursuance of the ideal of certainty of the law. See Bakare v. L.S.C.S.C (1992) 8 NWLR (Pt. 262) 641. Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) 162; FCSC v. Laoye (1989) 12 NWLR (Pt. 106) 652.

 

 

 

The totality of the appellants stand point in submissions canvassed on their behalf is that they want this court to re-evaluate evidence considered by Beckey, J. in an appeal heard by this court and determined against them in 1984. This court will always resist such an unwarranted invitation. We should not be drawn into a melee. See Owie v. Ighiwi (2005) 1SC (Pt. 11) 16.

 

In Layinka v. Makinde (2002) 5 SC (Pt. 1) 109, this court, per Eso JSC, pronounced thus:-

 

“—-it is clear all through 1944 to this day, the appellants had come up with various suits and lost to the respondents or their privies or agents. In sum total, this matter on appeal is based on concurrent findings of the two lower courts on facts. No appellate court should disturb the concurrent findings like this unless of law or inadmissible evidence or no evidence at all. Going through a line of decisions, this court will not disturb a clear finding of fact by a lower court.”

 

The appellants have not given any convincing and compelling reason why this court should depart from its decision in Amida v. Oshoboja (supra). The decision has not been proved to be wrong or given per incuriam. It has not been proved to be perpetuating injustice in any form. The ideal of certainty of the law should be maintained. In short, the subtle invitation to review the above stated decision is without foundation and it is refused.

 

In previous occasions, the appellants have taken their defeat in each round of the contest as a knock down. It is hoped that they will now appreciate that this defeat is a knock-out. There should be an end to an unwarranted, protracted litigation. I say no more.

 

It is for the above reasons and the fuller ones contained in the judgment of my learned brother that I feel propelled to dismiss this appeal. I order accordingly and endorse all consequential orders in the lead judgment; that relating to costs inclusive.

 

A. FABIYI,

 

Justice, Supreme Court.

 

Alhaja (Mrs.) R. O. Ayoola, for the Apellants; with him/her S. Abimbola, Esq.,

 

Folami Fasino, Esq., for the Respondent; with him, Segun Akintan, Esq.

 

JUDGMENT

 

(Delivered by A. M. Mukhtar, JSC)

 

This appeal that emanated from the judgment of the Court of Appeal, Lagos Division has fourteen grounds of appeal as per the amended notice of appeal. Married to the grounds of appeal are ten issues for determination in the appellants brief of argument. The appellants issues were adopted by the respondents in their brief of argument. An appellants reply brief of argument was filed by the appellants. While I agree that an appellant is allowed by law to file a reply brief of argument to the respondents brief, the question I would like to ask is what is the said reply brief envisaged to contain? It is a direct response or argument that will hit the points raised in the respondents brief, not a re opening of the argument on the issues already treated in the appellants or respondents brief of argument.

 

In the words of Niki Tobi, JCA (as he then was) in the case of Essien and others v. The Commissioner of Police 1996 5 NWLR part 449 page 489:-

‘A reply brief, as the name implies, must be a reply to the respondents brief  .

 

A reply brief is not a forum for introducing or advancing fresh point or point of argument. That will be tantamount to re-opening the appeal from the side of the appellant.’

 

I will add here that a reply brief becomes unnecessary if all it focuses on is to answer or respond to each point raised in the respondents brief, as by so doing the court is over burdened with gross repetition of arguments and facts. The reply brief in this appeal definitely does so.

 

The issues raised have been thoroughly dealt with In the lead judgment, so the need to treat all the issues in this contribution is obviated. I am inclined to highlight only issue (3) which in the appellants brief of argument reads:-

 

‘Whether the principles of resjudicata or issue estoppel were fulfilled in this case.’

 

It is instructive to note that the plaintiffs/respondents made the following crucial averments in their forth amended statement of claim:-

 

’24. The plaintiffs say that the Defendan

 

 

 

 

COUNSELS

 

Alhaja (Mrs.) R. O. Ayoola,

with him/her S. Abimbola Esqr. for the Appellants,

 

 

Folami Fasino, Esqr

.With him Scgun Akintan, Esqr, for the Respondents.

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