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In The Supreme Court
of Nigeria
On Friday, the 25th day of
February 2008
Before Their
Lordships
S.C. 234/2003
Between
And
Judgement
of the Court
Delivered by
Ibrahim
Tanko Muhammed
J.S.C
From the pleaded facts of her
statement of claim, the plaintiff, one Madam Abusatu
Agbogunleri was the head of
Agbogunleri family of Agege. She
instituted the suit giving rise to this appeal before the Lagos High Court
of Justice, on her own behalf and on behalf of the
Agbogunleri family making the following claim against the defendants:
(1)
A declaration that Agbogunleri family is
the person entitled to statutory right of occupancy in respect of the land
situate, lying and being at No 17, Old Abeokuta Road,
Isale Oja,
Agege.
(2)
Perpetual injunction restraining the defendants jointly and severally
from committing further act of-trespass-on the plaintiff land.
(3)
Special and general damages as follows:-
Save and except where the
defendants specifically admitted, they denied in their statement of defence
each and every allegation of facts made in the plaintiff's statement of
claim. The 4th
defendant indorsed a counterclaim against the plaintiff as follows:
The plaintiff sought for and
was granted extension of time by the trial court to file his reply to the
defendant's statement of defence and the counter - claim set out in it. In
that reply plaintiff set out her defence to the counter-claim.
At the trial the plaintiff
called three witnesses in support of the plaintiff's claim. The defendants
called six witnesses. In her judgment the learned trial judge
Kekere - Ekun, J.
dismissed the claims of the plaintiff. The counter-claim of the 4th
defendant succeeded and the 4th defendant was awarded the sum of
In the court below, the appeal
was partially allowed. Judgment of the trial court dismissing the plaintiffs
claim was affirmed. The award of
Dissatisfied further, the
plaintiff appealed to this court on two grounds of appeal set out in the
Notice of Appeal.
Briefs of arguments were
settled by the parties.
In her brief of argument which
was adopted by her learned counsel, the plaintiff, now appellant herein,
formulated a sole issue for the determination of this court. It reads as
follows:
"Whether
the Court of Appeal was right in upholding the finding that the appellants
are estopped by judgment in ID/199/81 (Exhibit DIB at the trial)."
Learned counsel for the
defendants but now respondents, initially formulated four issues for
determination. On the hearing date however, he sought for and was granted
leave to abandon three of the issues which, together with arguments
preferred in respect thereof, were struck out accordingly. The subsisting
issue for the respondents reads as follows:
"Whether the Court of Appeal
was right in upholding the findings of the Court of 1st instance
in respect of an earlier Suit No ID/199/81 (Exhibited as D1 at the
trial) having regard to the fact that the matter had been adjudicated upon
and determined by a Court of competent jurisdiction and as such the
Appellant is estopped by the principle of estoppel
per-rem
judicatem from re-litigating on same."
Some of the points raised by
learned counsel for the respondents in respect of which a reply brief was
filed by learned counsel for the appellant were conceded by the respondents.
The respondents accordingly had such points struck out e.g. issues 1, 3 and
4 of their brief of argument.
In his submission on the sole
issue, learned counsel
for the appellant devoted some time in defining and expatiating on the
doctrine of estoppel per res-judicata. He submitted that both the Court of
Appeal as well as the trial court was wrong in holding that the parties were
the same on the footing that the parties in the present suit are privies of
the parties in the earlier suit.
He argued further that as a general rule, no person is to be
adversely affected by a Judgment in an action in which he was not a party
because of the injustice in deciding a matter against him in his absence
unless he is a privy to a party in which he is equally bound as the parties
and is estopped by res judicata or he has so acted to preclude himself from
challenging the Judgment in which case he is
estopped by conduct.
Learned counsel contended that case of the respondent is not that the
appellant has conducted herself in any manner that would warrant the coming
into play of the doctrine of estoppel by conduct. There is no allegation
that appellant was aware of the prosecution of suit ID/199/81 or that she
stood by. The
respondents' case is that the appellant here is the privy of the plaintiff
in ID/199/81.
Learned counsel for the
appellant stated the classification of privies in general. He submitted that
an admission by a predecessor in title binds his successors provided it
affects the title and is made during the predecessors
interest. The reverse, he argued, cannot be the position. He put his
arguments in other words, that an admission by a successor in respect of the
title cannot bind his predecessor for the simple reason that the interest of
the predecessor must have become spent at the time of such admission by the
successor. There, is no longer any identity of interest. In the same manner
the binding effect of the doctrine of estoppel in relation to privies
operates down stream. Judgment against an ancestor in relation to the title
will operate to bind his heir, not the other way round.
Learned counsel for the
appellant stated further that a privy is a person whose title is derived
from and who claims through a party. He cited and relied on the case of
Arabic v Doku
Kanga (1932) 1 WACA 253 at 254. Learned counsel went on to explain
further what he means. He stated that a judgment against a testator will
bind his heir. A judgment against an heir cannot bind a testator.
The simple reason being that the testator would have
passed out of the scene. Similarly, a judgment against a vendor
affecting the property will bind the purchaser. It cannot be the other way
round because the vendor would have ceased to have any interest and there
wouid be no identity between the purchaser and
the vendor. Cases of
Akande
v Alaga (1988) 4 NWLR (Pt.86)
1 SC; Ebuaku v Amala
(1988) 2 NWLR (Pt.75) 128 at 130; were cited in support of that
submission.
It was contended for the
appellant that the appellant did not derive her title from the party in suit
ID/199/81 as the title of Agbogunleri family has
long been vested before the institution of suit ID/199/81 and judgment on
it cannot
operate as
an
estoppel against the
Agbogunleri
family. Another reason why that judgment cannot operate as estoppel
is that although the land in dispute in the earlier case is the same land in
dispute, the issue was completely different. The matter which came directly
for decision in the earlier case was as to the ownership between Mr.
Moris Obe and the
Catholic Church. That issue is
quite different from the issue of ownership between
Agbogunleri family and the Catholic Church. Mr.
Moris Obe could not have been fighting
the cause of the plaintiff in this case when he was making a claim for
himself. Consequently, the plaintiff could not be accused of allowing
someone to fight their battle for them. The direct issue decided in suit
ID/199/81 was the ownership between Moris
Obe and the Catholic Church mission.
Thus the 2nd condition for sustaining estoppel
per-res judicata could not be
fulfilled.
Another condition not
fulfilled by the respondents according to respondent's counsel was that the
judgment relied upon must be a final judgment of a competent court. The onus
of establishing that rests on the party seeking to rely on the judgment as
estoppel.- Learned counsel cited the case of
Oye
v Olubode & Ors (1974) NSCC (Vol.9) 409 at 413.
Learned counsel argued that as the judgment sought to be relied upon to
found estoppel per re- judicata
was appealed against there was no credible evidence as to the outcome of the
appeal and evidence shows the appeal is still pending. The Judgment, he
submitted, could not be said to have decided the issue to finality and the
judgment is incapable of being used to estop the plaintiff. This court is
finally urged to allow this appeal and give judgment in favour of the
plaintiff.
In his submissions, learned
counsel for the respondents stated that the appellant has correctly stated
the position that the plaintiff in suit No. ID/199/81
are the same as the present plaintiff i.e. appellant before this
court and by virtue of the principle of estoppel per -
rem judicata cannot
relitigate the issues afresh. Appellant also correctly identified the
situation of the appellant as one of privity by successive interest. The
findings of the court in suit No ID/199/81 bind any successive claim
in respect of the same subject matter. Obe the
plaintiff in the said suit No ID/199/81 claimed that he derived his
title from the Agbogunleri family, whose claim
failed against that of the church who had acquired their interest from the
same family for over 20 years before he (appellant) came on the scene. Thus,
judgment against a testator operates downstream as in the-earlier judgment
in suit No ID/199/81 operating as against the fresh case in respect
of the same land by the same parties. Contended further for the respondents
is that the parties in the suits are the same, the land is the same and the
judgment relied upon i.e. suit No ID/199/81 was a final judgment of a
competent court i.e. the High Court of Ikeja,
Lagos State. Learned counsel cited and relied on several authorities
including: Adebayo v
Babalola (1995) 7 NWLR
(Pt.408) 383 at 390; Kparsanaqi v
Shabako (1993) 5 NWLR (Pt.291) 67 at 70;
Chiakpa & Anor v.
Nduka & ors' (2001) 11SCM, 16 at 18.
Rossek
v ACB & 4 ors (1993) 8 NWLR (pt 312) 382.
Learned counsel for the respondents submitted that a privy is a person whose
title is derived from and who claims through a party. He went on to
categorize privies. He finally urges this court to dismiss the appeal and
affirm the concurrent decisions of the two courts below.
Permit me my Lords, to set out
the background facts of this appeal, for the sake of clarity, before I
embark on any meaningful discussion of the issues raised and argued above by
the parties to this appeal.
In her statement of claim, the
plaintiff averred that she is the head of Agbogunleri
family and institutes this suit and prosecutes it for and on behalf of the
Agbogunleri family of Isale
Oja, Agege,
Lagos state. It was also averred that the land
which is the subject matter of the suit is situate, lying and being at 17
old Abeokuta motor Road Isale
Oja Agege and formed
part of a vast parcel of land owned by Agbogunleri
family. It was further averred by the appellant that the land originally
belonged to the Ewu family which-exercised
various rights of ownership thereon including the cultivation of cash crops,
gathering of fruits and the cultivation of cocoa and
kolanut trees. The Ewu family was said to
have sold the piece or parcel of land in dispute to
Fadunsi Agbogunleri (The founder of
Agbogunleri family and plaintiffs grand father).
He had been in possession of the said parcel of land from 1906 until his
death in 1939. Upon the death of Fadunsi
Agbogunleri, the land devolved upon his children
by native law and custom. Paragraphs 14, 15 and 17 traced the succession to
the land by subsequent generations of the Agbogunleri
family up to the present plaintiff/appellant.
It was averred by the
appellant that one Mr. Obe rented the land in
dispute and he used to pay rent regularly to
Agbogunieri family and that he was issued with receipts. Averred
further is that Mr Obe erected a mud house on
the land which he later converted to a church. He continued to pay his rent
until the church vacated the land. After the church vacated, Mr
Obe began to default in payment of rent that led
to the Agbogunleri family to recover part of the
land.
The appellant averred as per
paragraphs 26 and 27 of the statement of claim that the
Agbogunleri family erected a three bedroom structure on the land as
family house. Early in 1996, the defendants/respondents began trespassing on
the land and destroyed structures which had been put there by the
Agbogunleri family.
The defendants joined issues
with the plaintiff on most of the averments in the statement of defence. In
paragraphs 4 and 5 of the statement of defence, the defendants admitted that
the land in dispute originally belonged to Agbogunleri
family. It was averred by the defendants that an area measuring 200ft x
200ft was sold to the authority of the Roman Catholic Church in 1936 vide
receipt dated 4th of August, 1936 which land became vested by
succession (to ecclesiastical)
in the 4th defendant since 1934.
The 4th defendants predecessor in title had caused the
area of the land purchased to be occupied by his church with a mud church
built
thereon in 1936 and surveyed in
1935. The defendants averred that they
were not
aware of suit
AB/224/56 pleaded
by the plaintiffs and
that until these proceedings the Agbogunleri
family had never challenged nor instituted any legal proceedings against the
defendants. The defendants pleaded long possession, acquiescence, standing
by and laches. They pleaded also that the land was not let to Mr.
Obe by the plaintiff's predecessor in title but
that she purpoted to sell it to him as per the
evidence of Mr. Obe in suit ID/199/81 against
the 4th defendant and others.
That judgment in the suit was entered in favour of the 4th
defendant against Mr. Obe and contended that
Agbogunleri and Mr. Obe's
vendor are estopped from denying the judgment in
that suit. Any land recovered from Mr. Obe by
Agbogunleri family cannot be the land in
dispute. Defendants/respondents averred that some vandals had demolished the
mud church and further that after the foundation stone of the plot had been
laid, the church discovered that the plaintiff and her thugs had disturbed
the workers on the site. That was why the defendants in their counter claim
claimed special damages for the vandalisation
and demolition of St. John's Church in 1997 and for the amount paid to
contractor for construction work in advance. The defendants averred further
that the plaintiff had no claim or interest on the land in dispute having
been divested of all claims and interest since 1936 when the 4th
defendant and his predecessors in office and title became the owners thereof
by purchase from the plaintiff's family or in the alternative, by long
possession, laches, standing by and acquiescence.
The plaintiff replied to some
of the issues raised in the statement of defence and the counter-claim.
In consideration of the sole
issue formulated for the determination of this appeal which is on estoppel
by Judgment, it is pertinent for me to state that estoppel, generally, is
that doctrine where a party is not allowed to say that a certain statement
of fact is untrue, whether in reality it is true or not. It is therefore a
disability whereby a party is precluded from alleging or proving in legal
proceedings that a fact is otherwise than it has been made to appear by the
matter giving rise to that disability.
Estoppel can be created in
several ways. The Common law recognizes three kinds:
(1)
Estoppel by record or quasi by record
(2)
Estoppel by deed and .
(3)
Estoppel in
pais
The one that concerns us in
this appeal is estoppel by record or quasi by record. It is more popularly
known as Estoppel per rem judicatam.
It presupposes that a final decision of a court of competent jurisdiction
once pronounced between the parties cannot be contradicted by any of such
parties in any subsequent litigation between them respecting the same
subject matter.
It arises in the following
situations:
(1)
where an issue of fact has been judicially
determined in a final manner between the parties by a court/tribunal having
Jurisdiction, concurrent or exclusive, in the matter and the same issue
comes directly in question in subsequent proceedings between the same
parties, (cause of action estoppel).
(2)
where
the first determination was by a court having exclusive jurisdiction, and
the same issue comes incidentally in question in subsequent proceedings
between same parties (issue estoppel)
(3)
in some cases where an issue of fact affecting the status of a person
or thing has been necessarily determined in a final manner as a substantive
part of a judgment in rem of a court/tribunal having jurisdiction to
determine that status and the same issue comes directly in question in
subsequent proceedings between any parties whatever. (see
paragraphs 952 and 953 of Halbury's Laws of
England Vol. 16, Fourth edition).
There is a finding by the
learned trial judge that the parties joined
issue on whether the
Agbogunleri family is bound by the judgment of
Desalu,
J. in suit No ID/199/81 as privies therein, i.e. whether the
doctrine of
estoppel per rem judicatam
applies. At page 223 of the record, the
learned trial judge held as follows:
"I
therefore hold that the plaintiff
herein is bound by the judgment of Desalu Judge
in suit ID/199/81 and is estopped from
re-litigating the same issue which was conclusively determined in that
suit."
After quoting extensively the
holding of the learned trial judge on the reliance placed by the defendants
on the judgment in suit No ID/199/81. as
estoppel per res judicata in their favour against the plaintiff, the lower
court was of the view that the learned trial judge was right in her
conclusion and the plaintiffs case ought to have failed as it did.
Is the lower court justified
in affirming the decision of the trial court especially when both courts
below found the plea of res judicata
raised by the defendants/respondents valid?
To answer this question, there
is need for me to go through the full scope of estoppel by record.
Where the earlier decision being relied upon by a party to disable
the other party from alleging or proving in legal proceedings that a fact is
otherwise than it has been made to appear by the matter giving rise to that
disability, such as in the present appeal, the judgment delivered earlier by
Desalu, J, then that decision can create
estoppel by record. Such
judgments are known
as "judgments in
personam or inter parties or res judicata.
They are those which determine the rights of parties as between one
another to or in the subject matter in dispute, whether it be corporeal
property of any kind whatever
or a liquidated
or unliquidated demand, but which do not affect
the status of either persons, or things, or make any disposition of property
or declare or determine any interest in it except as between the parties in
litigation. They include all judgments which are not judgments
in rem.
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 or open to
controversy in the first suit.
(2)
it came in question before a court of
competent jurisdiction. See Cardoso v
Daniel (1986) 3 NWLR (Pt.20) 1; and
(3)
the result was conclusive so as to bind
every other court. See; Cardoso v
Daniel (supra)
The judgment which was pleaded
by the respondents as res judicata against the claim of the appellant is the
judgment delivered-by-Desalu, J. (late) it came
about as a result of Suit No ID/199/81. The parties therein were:
AND
This was in suit No
ID/199/81 which was pleaded and tendered in Evidence.
In the suit giving rise to
this appeal the parties are:
AND
The various positions or
status of the parties mentioned in suit No ID/199/81 are that the
plaintiff, Mr. Obe, instituted the action
against the defendants therein seeking declaration that he was the person
entitled to the statutory right of occupancy in respect of the land in
dispute which was situate, lying and being at
Gbogunleri quarters of Agege township
along Agege motor road, sworn on plan No
L&L/C2669 as Church (mud) edged red, also known-as-17 Abeokuta motor road,
Agege, by virtue of Deed of Conveyance dated
9/9/65 between himself and Madam Adenrele
Gbogunleri, the grandmother of the plaintiff in
the second suit. It was in evidence before the first trial court that the
land in dispute was purchased by Fadunsi
Gbogunleri, (ancestor to plaintiff in the second
suit) and that the Gbogunleri family had
remained in undisturbed possession from 1906 till 1996 when the defendants
allegedly trespassed on the land. It was also in evidence that succeeding
generation of the Agbogunleri family inherited
the land and the plaintiff in the second suit is presently the head of the
family.
The plaintiff in the first
suit claimed title through Aderenle
Gbogunleri, the grandmother of the plaintiff in
the second suit. The learned trial judge in the second suit found the
plaintiff in that suit to be a privy of the plaintiff
in the first suit (page 222 of the record). Thus, the learned
trial judge concluded in the following words:
"I
therefore hold that the parties in
the two suit (sic) are the same."
In both suits Most Rev. Dr.
Anthony Olubunmi Okogie
was sued, according to the finding of the trial court, in his capacity as
the Archbishop of the Roman Catholic Archdiocese of Lagos and as the sole
trustee in whom all the lands of the Archdiocese are vested by succession
and acquisition. He was joined as a defendant in the second suit by order of
court, the other defendants in the first and the second suits were sued as
members of St. John's Catholic Church, Agege. It
is because of the contractual relationship that was existing between the
plaintiffs predecessors in title and the
defendants that is why the learned trial judge found the appellant to be in
privity of the transaction and bound by the judgment in the first suit.
But, who is a privy? In
Arabio
v Kanga (1932) 1 WACA 253 at p. 254, a privy was defined as that person
whose title is derived from and who claims through a party. It may also
imply identity of successive interest or persons having interest in
property. There are said to be three kinds of privies:
(a)
privies in blood, such as testator and
heir
(b)
privies in law such
as testator and executor
or in the case
of intestate succession, a successor and administrator.
(c)
privies in estate, such as vendor and
purchasers; lessor and lessee
etc. see
Nwosu
v Udeaja (1990) 1 NWLR
(Pt.125) 188
In
Exh.
DIB, i.e.
the judgment of Desalu J; which was
pleaded and tendered in
evidence before the
trial court, the
learned trial judge
in evaluating the evidence before him, made the following findings:-
"The plaintiff admits the land in dispute originally belonged to
Gbogunleri, the fore bear of the
vendor
of
the
plaintiff
Madam Gbogunleri Adenrele.
The case of the
defendant on the other hand is
that the Roman Catholic Mission bought the land in dispute as per
the purchase-receipt, Exhibit "K"
bearing date the 4th day of August, 1936.
The 2nd defendant contended that the Roman Catholic Church was
put in possession of the land purchased which includes the land in dispute.
It was contended the land so purchased measured 200 feet by 200 feet and
that the land in dispute forms a portion to the North Western portion
thereof, see the compilation plan, Exhibit "L".
The 2nd defendant claims to have bought the land from
Gbogunleri, the father of Madam
Aderenle Gbogunleri
the vendor of the plaintiff. In support, Exhibit "K" the purchase receipt
was tendered.
No evidence was adduced to invalidate the purchase receipt Exhibit "K".
I
prefer and believe the testimony of the witnesses for the defence P. W.1 and
P. W.2 that the Roman Catholic Church bought a parcel of land from
Gbogunleri the father
of
Madam
Aderenle Gbogunleri about the year 1936.
I
believe that the Roman Catholic
Church was put in possession of the land so purchased and exercised diverse
acts of ownership thereon from about 1935 without let or hindrance from
anyone,
I
am satisfied that one of the cogent acts of ownership and possession
exercised on the land by the Roman Catholic Church, was the erection on the
land of St. John's Catholic Church, Agege about
1935.
Exhibit "B", the
deed of conveyance of the plaintiff is dated
9'"
September, 1965.
There was no evidence that the plaintiff was ever put into possession of the
land in dispute by his vendor in 1965 or at any time thereafter.
I
am satisfied upon the evidence in this case that
Gbogunleri the father of Madam Aderenle
Gbogunleri, had sold a parcel of land measuring
about 200 feet by 200 feet to the Roman Catholic Church, and that the land
in dispute on which the mud Church of St. John's Catholic Church,
Agege was erected forms a small part.
I
am satisfied that Gbogunleri had therefore in
1936 divested himself and the entire Gbogunleri
family, of any further proprietary or other interest in the said
land.
It follows therefore and I hold that the interests of the GBOGUNLERI family
in the land in dispute having been divested in the land in dispute after
1936.
It follows also, that
some 30 years thereafter,
Madam Aderenle
Gbogunleri
would have no
interest in the land in dispute to convey to the plaintiff herein
That being so, I hold that no
interest
in the land in dispute passed to the plaintiff by
virtue of the deed of conveyance, Exhibit "B" as
Nemo dat quad non
habet."
(underlining
supplied for emphasis)
The learned that judge in the
second suit (now under appeal) based her decision on the privity established
between the appellant and his predecessors in the title to hold that she was
bound by the decision of Desalu, J. so, the case
of the appellant here is privity by successive interest as Mr.
Obe, who was the plaintiff in the first suit
claimed that he derived his title from the Agbogunleri
family, whose claim against the church which acquired its interest from the
same family for over 20 years before he carne on the scene, failed.
Therefore, judgment against a testator operates downstream as the first suit
ID/199/81, to operate against any fresh claim in respect of the same hand or
property by the same parties. This has been the position of the law for
quite sometime. Thus, the general principle of the law relating to privy in
title is that in transactions relating to land, any person who derives title
from or takes an assignment from, or is let into possession by, or otherwise
claims or "comes in" under the actual representor,
is bound by the same representation, and consequent estoppel, as that which
binds such actual representator. See:
Tylor
v Needham (1810) 2 Taunt. 279; Spenser, Bower and Turner in their book:
Estoppel by representation, third edition, Butterworth, London, 1977, pages
123-124.
There is no way I can brush
aside the submission of learned counsel for the respondents and the
conclusion reached by the learned trial judge, affirmed by the lower court
on the issue of parties, that the parties, on the principle of privity of
transactions are from all intents and purposes, the same in both suits. Each
of the parties from both sides must bear the consequence of his/its
predecessor in title and be bound by it. See.
Odua
v Nweze (1934) 2 WACA;
93; Shonekan v Smith (1964) 1
NLR; 168; Mohafe v
Esekhomo (1993) 8 NWLR (Pt.309) 58.
The second requirement in
sustaining a plea of estoppel by judgment is that the subject matter in
dispute must be the same in the previous suit and the suit in litigation at
the time the plea was raised. In the appeal on hand, learned trial judge
found from the pleadings of the parties that there was no dispute that the
land in dispute was the one
situate at 17, Old Abeokuta Motor Road,
Isale Oja,
Agege (page 192 of the record).
She also found and held as follows:
“I
am satisfied that the subject
matter in both suits are (sic) the same that is the land situate lying and
being at No 17 Old Abeokuta Motor Road, isale
Oja, Agege.”
The lower court agreed with
that finding. I have no reason to tamper with the concurrent findings of the
two lower courts. I affirm same that the said land is the same land in
litigation in both suits, i.e. the land situate, lying and being at No
17 Old Abeokuta Motor Road, Isale
Oja, Agege. It was
this land that was in real controversy. It has same identity in both suits.
See: Chikwe
v Obiora (1960) SC NLR
566; Ekpoke v Usilo
(1978) 6-7 SC 187. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||