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In The Supreme Court of Nigeria

On Friday, the 18th day of May 1990

SC 153/1985

 

Before Their Lordships

 

 

Andrews Otutu Obaseki

......

Justice, Supreme Court

Augustine Nnamani

......

Justice, Supreme Court

Adolphus Godwin Karibi-Whyte

......

Justice, Supreme Court

Salihu Modibbo Alfa Belgore

......

Justice, Supreme Court

Abubqkar Bashir Wali

......

Justice, Supreme Court

    

Between

 

Michael Ezenwa 

......

Appellants

 And

I.O. Olalekan Kareem

.......

Respondent

 

Judgment of the Court

Delivered by

Wali. J.S.C.

 

 

In the trial High Court both the present appellant and the respondent filed separate actions against each other claiming relief in respect of the same parcel of land. In Suit No. 1D/98/75 the present respondent claimed against the present appellant as defendant, as follows-

 

1.    A Declaration of title to all that piece or parcel of land situate lying and being at 1 Abiodun Street Bashua Village, Shomolu and which is more particularly described on the plan attached to the deed of conveyance dated 9th May, 1968 and registered as 48/48/1271.

 

2.    Injunction restraining the defendant his agents, servants and privies from committing acts of trespass to the said property.

 

While in Suit No. ID/127/1975, the present appellant as plaintiff claimed against the present respondent as defendant as follows:­

(a)   A declaration of possessory title as customary tenant of Bashua Family of Lagos State, to all the piece of   land situate at 1, Abiodun Street by 30 Bajulaiye Road, Bashua Village, Shomolu , as shown in plan No. 108/58 [A & B].

 

(b)    Relief against forfeiture.

 

(c)    A perpetual injunction restraining the Defendant, his servants and agents from continuing to be on the land."

 

Pleadings were ordered. filed and exchanged. The two eases were consoli­dated for hearing. At the conclusion of the hearing, the learned trial Judge delivered a considered judgment in which he found in favour of the present Respondent as follows –

Judgment is hereby entered in favour of the plaintiff that he is the person entitled to a statutory right of occupancy in respect of that piece or parcel of land situate and lying and being at I, Abiodun Street, Bashua Village and which is more particularly described on the plan attached to the deed of conveyance dated 9th day of May, 1968 and registered as No.48 in Volume 1271 of  the Register of Deeds kept in the Office at Lagos and admitted in these proceedings as EXHIBITS “A" and “B". It is further ordered that the Defendants, Michael Ezenwa, his agents, servants and privies be restrained from committing any acts of trespass whatsoever on the said land in dispute as per the plan attached as Exhibits “A” and “B” in these proceedings.

In dismissing the present appellant's cross-suit the learned trial Judge also commented -

…the plaintiff in Suit No. 1D1217175: Michael Ezenwa had not established to my satisfaction a better title to the land in dispute, than the defendant.

In the circumstances therefore the plaintiffs claim in suit No. ID/217/75 therefore fails in its entirety and it is accordingly DISMISSED.

Henceforth, both Michael Ezenwa and Idris Olalekan Kareem (By his next friend Mrs. Olayinka Kareem) will be referred to as the appellant and the respondent respectively.

Dissatisfied with the judgment of the trial court, the appellant filed an appeal against it in the Lagos Division of the Court of Appeal.

In a lead judgment of the Court of Appeal by Uthman Mohammed, J.C.A., and with which both Nnaemeka-Agu, J.C.A. (as he then was) and Kutigi, J.C.A., agreed, the appeal was dismissed, and the judgment of the trial court in the consolidated suits Nos. ID/98/75 and ID/217/75 was affirmed.

The appellant has now further appealed to this Court after leave to do so was granted by this Court.

The parties filed and exchanged briefs of argument. In the brief filed for and on behalf of the appellant only one issue has been formulated for determination to wit -

 

Whether the court below was correct in coming to the conclusion that the decision of the Supreme Court in SC.330/74 did not operate as estoppel against the title claimed by Suraju Kareem and that accordingly there is nothing in law which prohibits the only surviving son and beneficiary of Suraju Kareem's estate from taking any action against the appellant in respect of the same land.

In the appellant's brief, Ladi Williams, learned counsel, contested that neither the trial court nor the Court of Appeal was in doubt that the appellant rested his case on the Supreme Court decision in SC.330/74 and that the Respondent was in no way misled in that regard; he therefore submitted that since estoppel is based on public policy, there is enough material on the pleadings before the court to sustain the plea. In elaboration of the written brief, the learned counsel further submitted that it is an undisputed fact that the parcel of land in dispute originally belonged to Bashua Family and that the present parties litigated upon it in SC.330174.

In reply, learned counsel for the Respondent adopted in his brief the only issue formulated by the appellant in his brief. He submitted that for the appellant to rely on the decision in SC.330174 as constituting an estoppel, he must show that he made a distinct claim for the title which was determined on its merit. It was the learned counsel's contention that not only is there no judgment on merit against the Respondent and his predecessor in title in SC.330/74 but also the opening sentence of that judgment clearly shows that the claim by the appellant was for trespass and injunction. The appellant cannot therefore succeed in his plea of estoppel if all he could show was a claim for trespass and injunction. In support of his submissions learned counsel cited the following decisions of this Court - Udo v. Obot (1989)1 N.W.L.R. (Pt.95) at 69 at 77, Chief Kojo Bosor V. Chief Kessie 2 W.A.C.A. 65 and Ekpenyong V. Nyong (1975)2 S.C.71 at 80.

Before considering arguments presented by learned counsel for the ap­pellant and the respondent respectively, I think it is desirable at this stage to A restate the facts in this case and which are as follows:-

 

The appellant, in 1959, entered into an agreement with one Apalara Bashua of Bashua Family for a customary lease of two plots, lA and lB along Abiodun Street, Bashua village of Lagos State. The lease-hold was to run for 99 years. The appellant took possession of plot lB and built a house on it. This was before the B Nigerian Civil War. During the civil war when the appellant was away to the East, the father of the respondent Alhaji Suraju Kareem purchased plot lA (referred to as No.1 Abiodun Street in this case) from Bashua Family. A conveyance was executed in his favour - Exhibit A. He entered into possession and built a house on the plot. Suraju Kareem's family are residing in the house now.

At the end of the civil war when the appellant returned to Lagos, he discovered that a portion of the land leased to him by Apalara Bashua had been occupied by Suraju Kareem, the father of the respondent: he instituted an action in trespass and injunction against Lateef Kareem and Suraju Kareem in Ikeja Division of the Lagos High Court. The present appellant was not satisfied with the judgment given by the High Court and ap­pealed to the Supreme Court against it. The Supreme Court in its judgment Exhibit F. allowed the appeal against Lateef Kareem who was the 1st respondent, but struck out the case against Suraju Kareem who was the 2nd respondent who died during the pendency of the case before filing pleading to defend the action against him.

Relying on Exhibit F. the present appellant started laying claim on plot IA and trespassing thereon. As a result the present respondent. Idris Olalekan Kareem (By his next friend Mrs. Olayinka Kareem) initiated the current proceedings against the appellant. which is now the subject of this appeal.

To sustain a plea of res judicata the party pleading it must satisfy the fol­lowing conditions, to wit -

1.    that the parties (or their privies as the case may be) are the same in the present ease as in previous case;

 

2.    that the issue and subject-matter are the same in the previous ease as in the present case;

 

3.    that the adjudication in the previous case must have been given by a court of competent jurisdiction and

 

4.    that the previous decision must have finally decided the issues between the parties.

See Mogo Chinwendu v. Mharnah (198t)) 3-4 S.C. 31, Ikpang & Ors. V. Sam Edoho & Anor. (1978) 6 & 7 S.C. 221 and Udo & 5 Ors. V. Ohot & 2 Ors.(1989) 1 N.W.L.R. (Pt.95) 59.

Neither the proceeding nor the judgment in 1KI50/70 was put in evidence be­fore the trial court in the present case. That notwithstanding, it is clear from Exhibit F - the judgment of the Supreme Court on appeal in 1K/50/70, that is also the father of the present respondent died during pendency of the said case without filing pleading let alone to talk of contesting it. In allowing the appeal of the appellant, the Supreme Court remarked in Exhibit F as follows:-

The appellant had sued the defendants - two of them - for trespass and injunction. The first defendant pleaded that he had no interest in the property and the second defendant died with­out filing any pleading let alone make any defence.

………........................................................

 

It is manifest that 1st defendant had no interest in this prop­erty and as long as he continues to stay on the premises without justification, he is in trespass. He must be restrained by this Court. The 2nd defendant as stated before did not defend the case and if as is the case the 1st defendant rested his case on the authority or licence of the 2nd defendant then it is for that defen­dant to establish such justification. He failed to do this and it must follow that he had no defence to the action.

………......................................................

As stated before, the plaintiff establishes his case against 1st defendant who stated that he had no interest in the case and did not show any justification for his entry into and continued stay on the premises.

 

The appeal succeeds and it is allowed. We set aside the judg­ment of the High Court. Ikeja in Suit No. lK/50/70 including the Order for costs and make the following orders:-

(1)    The case against the 2nd defendant is struck out.

(2)    As against the 1st defendant. judgment is entered for the plaintiff for N20.00 damages for trespass and injunction. The 1st defendant his servants and/or agents is hereby restrained from further staying in trespass on the premises contained in the plaintiff's plan Exhibit 'D' or the defen­dants' plan in, the conveyance Exhibit 'F'.

The plinth on which the learned counsel for the appellant rested his case is that Exhibit F had decided the case in dispute between the present appellant and Suraju Abdulkarim, the father of the present respondent and therefore binding on him as his privy.

It is one of the conditions for the sustainance of a plea of res judicata that the decision being relied upon must have finally decided the issues between the parties or their privies.

It is not in dispute that the piece of land in dispute in the present case is the same as the one in Exhibit F - the previous case. It is also not disputed that the present respondent is a privy to 2nd respondent in Exhibit F, and that Exhibit F was given by a court of competent jurisdiction. But the deci­sive questions to ask here are -

1.    Was the claim of the present appellant against the respondent in the previous case, the same as the claim in the current case?

 

2.    Did Exhibit 'F" finally decide the issue in dispute between the present appellant and the 2nd respondent?

 

As I have said earlier proceedings in IK/50/70 were not put in evidence be­fore the trial court but however from Exhibit “F” being relied on by the appellant, the case was for trespass and injunction. The appellant never sued for title in the previous case. Exhibit “F” decreed no title to the appellant iii respect of the piece of  land in dispute.

This leads me to the second question which  is finality of Exhibit “F” against the 2nd respondent in that case.Exhibit "F" leaves me in no doubt that the 2nd respondent was a party in that case, he died before filing pleading to even enable him defend the action. The Supreme court therefore struck out the suit against him. Can it therefore be seriously contested that Exhibit “F” is a final decision of the issue between the appellant and the 2nd respondent to bind their privies? My answer is in the negative.

A judgment is only final when it is obtained in an action by which an existing liability of the defendant to the plaintiff is determined on merit and vice versa. As against the second respondent there is no decision on merit in Kodilinye v. Odu 2 W.A.C.A 336 at 338. Exhibit “F” did not determine one way or the other the issue of trespass and injunction vis-a-vis the 2nd respondent. It could not have therefore created a estoppel by record.  See Bamishebi v. Faleye (1987) 2 N.W.L.R. (Pt.54) 51 at 58. I am, in that regard, in complete agreement with the finding of the learned trial Judge that-

 

Even if it were admitted that Alhaji Kareem mentioned in Exhibit “F” in this case was the father of the plaintiff in this case, since the case against him was struck out, I am at a loss to com­prehend how the judgment in Exhibit F can he an estoppel by record or otherwise against the present plaintiff.

 

I cannot see how the appellant can sustain his plea of res judicata as neither the decision in Exhibit “F” is a final decision against the 2nd respondent in that ease nor is the claim in that case the same as the one in the present case -

The appellant made no effort to substitute the estate of the 2nd defen­dant as a defendant in the previous case when it became known to him that he was dead. The case against him therefore abated. Equity aids the vigilant but not the indolent.

The appeal fails in toto and it is dismissed with N500 costs to the re­spondent.

 

 

Judgment delivered by

Obaseki, J.S.C.

 

I have had the advantage of reading in advance the draft of the judgment just delivered by my learned brother, Wali J.S.C. and I find the opinions expressed therein on all the issues for determination in this appeal to accord with mine I therefore adopt them as my own.

The proceedings in this matter were commenced in the High Court when the respondent claimed a declaration of title to the land situate at No. Abiodun Street, Bashna Village, Shomolu Lagos together with an order of injunction and the appellant filed a cross action claiming same and a declaration of possessory title as customary tenant relief against forfeiture and injunction in respect of the same land.

 

The appellant who was defendant in the consolidated suit lost in the High Court. His appeal to the Court of Appeal was dismissed. This is a further appeal.

The sole question for determination in this appeal formulated by the ap­pellant in his brief and adopted by the respondent reads:

Whether the court below was correct in coming to the conclu­sion that the decision of the Supreme Court in SC.330/74 did not operate as estoppel against the title claimed by Suraju Kareem and that accordingly, there is nothing in law which prohibits the only surviving son and beneficiary of Suraju Kareem's estate from taking any action against the appellant in respect of the same land.

My learned brother, Wali, J.S.C., has in his judgment shown that the Supreme Court decision in SC.330/74 tendered as Exhibit F herein has not determined the rights of Alhaji Suraju Kareem the father of the respondent and the appellant herein as Alhaji Kareem died before he could file any de­fence to the claim of the appellant herein. Alhaji Suraju Kareem was the sec­ond defendant in the suit and it appears the appellant, by contending that the decision in SC.330/74 Exhibit F operates as estoppel to estop the respondent from bringing his claim and commencing these proceedings, he is placing a construction on the decision in SC.330/74 Exhibit F which it does not de­serve.It is expressly stated in Exhibit F that-

the case against the 2nd defendant is struck out.

A case that is struck out is removed from the court's cause list of causes E for hearing and determination. The decision does not constitute a determi­nation of the rights of the parties. A decision of the court to strike out the case against the defendant is a decision that the court will not hear the case and determine the rights of the parties. To sustain a plea of estoppel per rem judicatam

1.    There must be an adjudication of the issues joined by the parties;

 

2.    The parties or their privies as the case may be must be the same in the present case as in the previous case'.

 

3.    The issue and subject-matter must be the same in the previous case as in the present case:

 

4.    The adjudication in the previous case must have been by a court of competent jurisdiction: and

 

5.    The previous decision must have finally decided the issues bet­ween the parties. i.e. the rights of the parties must have been finally determined.

 

See 1.    Cardoso Daniel (1986) 2 N.W.L.R. (Part 20) 1

 

2.   Dzungwev. Gbishe(l985) 2N.W.L.R. (Part 8)528

 

3.    Chinwendu V. Mbamali (1980) 3-4 S.C. 31

 

4.    Udo v. Obot (1989) I N.W.L.R. (Part.95)59.

As the case against the respondent's predecessor in title was not adjudi­cated upon or investigated but was struck out by the Supreme Court, the contention of the appellant that it constituted a decision to found a plea of estoppel per rem judicatam is without legal basis.

I agree with my learned brother, Wali, J.S.C., that the appeal fails in toto and I hereby dismiss it with N500.00 costs to the respondent.

 

 

Judgment delivered by

Nnamani, J.S.C.

I had a preview of the judgment just delivered by my learned brother, Wali, J.S.C., and I agree with his reasoning and conclusions.

The appellant herein had lost in the High Court and the Court of Ap­peal in a consolidated suit touching on title to a portion of land which by common ground originally was the property of the Bashua family. In his ap­peal to this Court, the appellant relied on res judicata based on a judgment of the Supreme Court SC.330/74. It is trite now that for a plea of res judicata to succeed the party relying on it must show that the parties/privies were the same, the issues involved and/or the subject-matter of the suit must be the same and that the case sought to be relied upon in the subsequent suit was adjudicated upon by a court of competent jurisdiction. See Iyaji V. Eyigebe (1987) 3 N.W.L.R. (Part 61)523.

The appellant could not meet these ingredients. In the first place, the suit on which this plea was based SC.330/74, was not tendered in the present proceedings. Besides, in the suit that culminated in that Supreme Court decision, the appellant had sued Suraju Kareem, the respondent's father, as 2nd defendant and Suraju's brother as 1st defendant. Before he even filed a defence to the suit, Suraju had died. Judgment was therefore obtained against the 1st defendant. At the Supreme Court, the case against Suraju Kareem was struck out. There is therefore no judgment in respect of which appellant and the said Suraju could be said to be parties. The subject matter in the two suits was also not the same.

I too do dismiss this appeal. I endorse the order for costs in the lead judgment.

 

Judgment delivered by

Karibi-Whyte, J.S.C.

 

I have had the privilege of reading the judgment of my learned brother, A.B. Wali, J.S.C. I agree entirely with his reasoning and the conclusion that this appeal should be dismissed.

The only point taken in this appeal is whether the Respondent is bound by the judgment of,a previous decision of this Court in a litigation between the parties.

The facts of this case have been comprehensively stated in the judgment of my learned brother, Wali, J.S.C. I need not repeat them. I adopt them.. The gravamen of Appellant's case rests on the plea of res judicata. It is well settled that a party relying on the plea of res judicata must establish the following -

(a)    The parties in the present case (or their privies) must be the same as those in case relied upon.

 

(b)    The issues litigated in the two cases must be the same.

 

(c)    The case relied upon must have been decided by a Court of competent jurisdiction.

 

(d)    The issue relied upon must have been finally determined in the decision relied upon.

 

It was established that neither the proceeding nor the judgment in 1K/50/70 relied upon was put in evidence before the trial Court in the present case. That lapse apart, the 1st defendant in that case did not contest the claim; while the 2nd Defendant, who is the father of the present Respondent died, before pleadings were concluded. Again an appeal to the Supreme Court, the case against the 2nd Defendant was struck out. Thus the claim against him has never been finally decided on its merits. Herein lies the question of the application of the plea of res judicata.

 

It is only necessary to refer to one of the many cases on this issue in support of the view that the issue of trespass and injunction viz-a-viz the 2nd Re­spondent (litigated in this case) having never been decided finally on its merits no estoppel has been created. - See Bamishebi v. Faleye (1987) 2 N .W.L.R. (Pt.54) 51 at p.58. Appellant has therefore failed in his plea of res judicata against the 2nd Respondent.

I too will and hereby dismiss the appeal with N500 as costs to the Respondents.

 

 Judgment delivered by

Belgore, J.S.C.

 

I cannot find justifiable reason for raising issue of res judicata in this matter. Reports are replete with judgments of this Court on this special subject in law. [Dzungwe v. Gbishe (1985) 2 N.W.L.R. (Pt.8) 528; Chinwendu v. Mbamali (1980) 3-4 S.C. 31; Udo v. Obot (1989)1 N.W.L.R. (Pt.95) 59. All conditions that must be fulfilled before the plea will be acceptable are certainly not satisfied in his case. as ably explained in the lead judgment of Wali, J S.C. with which I agree. I find no merit in this appeal and for the reasons advanced in the lead judgment (which I adopt as my own), I also dismiss it with N500.00 costs to the respondents.

 

Counsel

 

Ladi Williams.

  ........

For the Appellants

F. O. Bakere.

  ........

For the Respondents