ADESINA OKE & Others v SHITTU ATOLOYE & Others (SC 259/1984) [1986] NGSC 10 (24 January 1986)
ADESINA OKE & Others v SHITTU ATOLOYE & Others (SC 259/1984) [1986] NGSC 10 (24 January 1986)
ADESINA OKE & ORS (APPELLANT)
v.
SHITTU ATOLOYE & ORS RESPONDENT)
(1986) All N.L.R. 100
Division: Supreme Court Of Nigeria
Date of Judgment: 24th January, 1986
Case Number: (SC 259/1984)
Before: Aniagolu, Nnamani, Kazeem, Kawu, Oputa, JJ.S.C.
The appellants at the High Court on behalf of themselves and Wonpori family sued the respondent for declaration of title under Yoruba customary law, damages for trespass and an injunction restraining the respondents their servants or agent from further trespass.
Earlier on in 1950, the appellant as defendants were declared owners of the piece of land which is the subject matter of this suit. The respondents were not a party to this suit, though they had an interest in the subject matter of the suit. The appellants therefore pleaded the 1950 suit as estoppel, contending that the issue of title had been resolved and that the respondents are estopped from proving the contrary.
The respondents case was that though they derived their title from the same ancestor as the plaintiffs in the 1950 case and that the land in dispute had been partitioned amongst Simitara, Odemo and Osidemo who were the children of the said ancestor. They further contended that they were claiming that portion allocated to Odemo family to which they belong and that the 1950 case was instituted by the Simitara family against the appellants and that he was therefore not estopped by the 1950 case.
The trial Judge found the 1950 case had dealt with the land in issue and had estopped the respondents from raising further claims.
On an appeal the judgment of the trial court was reversed and the case was sent back for retrial. However the appellants instituted a fresh proceeding in which judgment was given for the respondents. The appellants appealed to the Court of Appeal which upheld the decision of the trial court.
On a further appeal to the Supreme Court.
HELD:
(1) "The general rule of law undoubtedly is that no person is to be adversely affected by a judgment in an action to which he was not a party, because of the injustice in deciding an issue against him in his absence: but this general rule admits of two exceptions. One exception is that a person who is in privity which the parties, a 'privity' as he is called is bound equally with the parties in which case he is estopped by res judicata: the other is that a person may have so acted as to preclude himself from challenging the judgment in which case he is estoppel by his conduct."
(2) "There is a practice in this Court by which any person having an interest may make himself a party to the suit by intervening, and it was because of the existence of that practice that the ..... court held that if a person knowing what was passing was content to stand by and see his battle fought by someone else in the same interest, he should be bound by the result and not be allowed to reopen the case ..........."
Therefore having regard to the circumstances of this case, the above stated principle is applicable.
(3) The 1950 case awarded ownership of the land in dispute to the appellants and the onus therefore lie on the respondent who averred the contrary, to prove that the Appellants were not the true owner. This they have failed to do.
Appeal allowed.
Chief A. Adaramaja (with him C. O. Ajayi and A. Osinuga) for Appellants.
H. A. Odufalu for Respondents.
Kazeem, J.S.C.-In this appeal, the Appellants as Plaintiffs for and on behalf of themselves and Wonpori family sued the Defendant personally for a declaration of title under Yoruba Customary Law as owners of all that piece and parcel of land, situate lying and being at Ologbun Village, Shagamu, Ijebu-Remo; for damages for trespass and for an injunction to restrain the Defendant, his servants and agents from committing or continuing to commit acts of trespass on the said land. The land in dispute in this appeal formed the Southern portion of the entire parcel of land which formed the subject-matter of the proceedings in Suit No. 1/144/50 which was between one Josiah Sobanjo for and on behalf of the Simitara family as Plaintiffs and the present Appellants as Defendants.
The Plaintiffs in that 1950 case based their radical title on one Sofuyi Ajana who was described as their ancestor. Hence in paragraphs 4 and 8 of their Statement of Claim dated 1st March, 1951, they averred thus:-
"4. Very many years ago, the Plaintiff's ancestor Sotuyi Ajana together with his children and servants occupied the land in dispute which was then a vacant and unappropriated virgin forest land.
8. The Plaintiffs avers further that since the time of Sofuyi aforesaid, the members of Plaintiffs family have (a) successively been in exclusive and undisturbed use and possession, and in absolute ownership of the land in dispute; and (b) have also successively cultivated various portions of the land in dispute, planted thereon cocoa trees, kola trees and food crops of different kinds and have always reaped all the palm fruits which grow on the said farmland."
It is therefore clear from their statement of claim that the Plaintiffs were claiming in Suit 1/144/50 the whole land shown in the Survey Plan Exh. A as the land of their Ancestor-Sofuyi Ajana who had occupied the said land with his children and servants for very many years. There was no suggestion at that time, that the entire land had been partitioned between the children of Sofuyi Ajana. The Suit was tried by Abbott, J. who heard and considered the evidence adduced before him at the outset of the trial counsel for the Defendants admitted that the Plaintiffs were the owners of all the land claimed lying north-west of an imaginary line drawn west-ward from a point later marked X by the trial Judge. The parties then went to trial as to title to the land to the south of the imaginary line (hereinafter referred to as "Abbott line") which according to the Plaintiffs' plan-Exh. A-was bounded on the east by Ewu Oloja, and south west by Ogunbena's farm land and on the west by the Defendants' land. And in delivering his judgment, the learned trial Judge said:
"In actions for declaration of title it lies upon the Plaintiffs to prove acts of ownership numerous enough and extending over a sufficient period of time to show that they are entitled to be declared owners of the land. They have not discharged that onus here. There has never been any suggestion that the Plaintiffs were entitled to possession otherwise than as owners.
Therefore the claims for damages for trespass and injunction must also fail. Judgment must accordingly be entered for the Defendant on the whole claim so far as it regards the land South of the blue line and within the red edging on Exhibit "A". I declare however that the Plaintiffs are the owners of the land North of the Blue line of Exhibit "A" and within the red edging thereon. There is no claim for or suggestion of trespass on this land, so a declaration of title is all the Plaintiffs can have in relation to that land ......"
Thus Abbott, J. had in that judgment (whether rightly or wrongly) awarded the southern portion of Abbott line to the Defendants (who are the Appellants in this case) even though they did not counter-claim for that portion of land.
The Plaintiff in Suit 1/144/50 appealed against that judgment to the West African Court of Appeal in Appeal No. 233/1953 (See 14 W.A.C.A. 593) where according to the judgment in that appeal the Plaintiffs/Appellants had admitted that the Defendants/Respondents had been for over ten years in possession of the area in dispute immediately before the action was commenced. However, the West African Court of Appeal after considering the submissions dismissed the appeal. Subsequently, the Abbott line was surveyed in 1956 by order of Court and it was properly demarcated to show the present land in dispute as what was awarded in the 1950 case to the Appellants in this appeal.
It is remarkable that during the survey of Abbott line in 1956, the Respondent protested against it; but he was advised by the Surveyor Mr Togonu Bickesteth to take necessary legal proceedings about it, and he did nothing. That much was admitted by Mr Odufalu learned Counsel for the Respondent during the hearing of this appeal. (Also see the Order of Court dated 23rd June, 1958 made by Doherty, J. which approved the Abbott line). Hence, the Respondent thus became aware that the Appellants were claiming possession and ownership of the land in dispute.
Apparently there was nothing done by both parties until on or about 1961 when the Appellants sued at the Abeokuta Judicial Division, the Respondent as 3rd Defendant along with two other persons as 1st and 2nd Defendants, for themselves and on behalf of Simitara family in Suit AB/35/61, for a declaration of title, damages for trespass and injunction in respect of the land in dispute. The Suit was later transferred to the Ijebu Ode Judicial Division as Suit No. IJ/3161. The case was tried and decided by Doherty, J. in favour of the Appellants on a preliminary issue of estoppel per rem judicatam raised by the Appellants and based on the effect of the judgment in Suit 1/144/50. But the Respondent's appeal against the judgment and the appeal was allowed by the Supreme Court in FSC/445/63 in so far as it concerned the Respondent, with an order that the case be remitted to the appropriate Court for retrial by another Judge. Instead of applying for retrial, the Appellants instituted these fresh proceedings which were heard by Olu Ayoola, J.
Again in the pleadings of the Appellants in these new proceedings, the judgment in Suit 1/144/50 featured very prominently and it was relied upon as estoppel in paragraph 23 of the Statement of Claim thus:
"The Plaintiffs will contend at the trial that the Defendant is estopped from claiming the land in dispute in view of the said judgment in Suit No. 1/144/50 and confirmed by the West African Court of Appeal in W.A.C.A. 233/1953, on the 22nd day of October 1954."
In his own pleadings, the Respondent also based his radical title on Sofuyi Ajana from whom he claimed title as his Ancestor in the same way as the Simitara family did in the Suit 1/144/50; but he said that during the life time of Sofuyi Ajana, he had partitioned all his land among his three children namely Simitara, Odemo and Osidemo; and that the land in dispute was the one allocated to the Odemo family to whom the Respondent belonged: See paragraphs 4, 8 to 14 of the Amended Statement of Defence at pages 58 to 62 of the Record. However, the Respondent denied that either he personally or his family the Odemo branch of the Sofuyi Ajana family was a party to the 1950 case instituted by the Simitara family against the Appellants; or that he stood by during the proceedings in that case. Hence he contended that the plea of estoppel could not operate against him.
In his judgment after the trial of the case, Olu Ayoola, J. found:-
(a) that the Respondent was not a member of the Simitara family, but was a member of the Odemo family and as such he could not be bound per rem judicatam by the decision in Suit 1/144/50 since he was not a party to the suit;
(b) that the Respondent was not present in court nor did he take any active part in the proceedings in Suit 1/144/50 such as to make him liable upon a plea of estoppel by conduct; and
(c) that the appellants failed to discharge the onus which lay on them to prove their claim.
The Appellants then appealed to the Western State Court of Appeal and although that court confirmed the findings of Olu Ayoola, J. that the plea of estoppel per rem judicatam could not operate against the Respondent, it nevertheless allowed the appeal on the ground that the judgment of Abbott, J. in Suit 1/144/50 was a judgment in rem; and declared that the Appellants were in possession. Dissatisfied with that judgment, the Respondent appealed to the Supreme Court of Nigeria. But before the appeal could be heard, the Federal Court of Appeal (as it then was) had been set up as an intermediate court which became seized of the matter. That court heard the appeal, set aside the decision of the Western State Court of Appeal and restored the judgment of Olu Ayoola, J. which had previously dismissed the Appellants' claims. In effect, the Court of Appeal held that the decision in Suit 1/144/50 was not a judgment in rem; and that the fact that the Appellants were admitted to have been in possession 10 years before the 1950 case (i.e. 1940) was only binding on the Simitara family and not the Respondent who was not a party to the proceedings.
It is against that judgment that the Appellants had appealed; to this Court, on two grounds; the third ground on mixed law and fact having been struck out because no leave was obtained to file and argue it. The grounds argued are as follows:-
"1. The Federal Court of Appeal erred in law in going behind the judgment in the West African Court of Appeal in Suit 1/144/50 (W.A.C.A. 233/53 to the effect that the present Appellants had been in possession of the land in dispute for 10 years before the action was filed (i.e. 1950) thereby re-opening the issue of possession of the land in dispute already concluded; as a result of which the Court reversed the onus of proof which was settled on the basis of Section 145 of the Evidence Act.
PARTICULARS
(a) The Judgment in 1/144/50 was also evidence of acts of ownership.
(b) The traditional evidence in respect of possession and acts of ownership of the land in dispute by the Appellants was put beyond doubt by the judgment (1/144/50).
3. The Federal Court of Appeal erred in law in holding that the Respondents were not bound by the decision in 1/144/50 (as confirmed on appeal to the West African Court of Appeal in W.A.C.A 233/53) when the Respondents claimed in the High Court through an ancestor whose estate was not put in issue in the 1950 suit and were accordingly bound by the decision."
In arguing the grounds one and three together, Chief Adaramaja, learned Counsel for the Appellants, made the following submissions:-
(i) that the Judgment in Suit 1/144/50 was a judgment in rem;
(ii) that, even if the judgment did not operate as res judicata, it operated as estoppel by conduct and standing by;
(iii) that in so far as the Appellants had been declared the owner or to be in exclusive possession of the land in dispute by a superior Court of record, the provisions of Section 145 of the Evidence Act automatically applied;
(iv) that both the trial court as well as the Court of Appeal were wrong in law shifting the burden of proof on the Appellants instead of the Respondent, and he relied on Mosalewa Thomas V., Preston Holder 12 W.A.C.A. 78 at page 80 in support;
(v) that where a Plaintiff as the Appellants in this case, traced its title directly to one whose title to ownership has been established, it is not necessary that the Plaintiff should prove such act of ownership. The burden is on the Defendant as the Respondent in this case to prove that he is not the owner; A.W. Elias v. B. A. Suleiman (1973) 12 S.C. 133 at page 129 was relied upon. It was then argued that having regard to the fact that the judgment in Suit 1/144/50 had awarded rightly or wrongly the ownership of the land in dispute to the Appellants; and in view of the admission that the Appellants had been in possession of the said land for over ten years before the 1950 case, the burden was on the Respondent to prove that the Appellants were no longer the owners. Hence it was contended that the Court of Appeal erred in putting the onus on the Appellants in proving their ownership of the land in dispute;
(vi) that the issue of the Appellants' possession of the land in dispute had already been settled by the West African Court of Appeal in Appeal No. 233/1953: Mustapha Lawal v. Abdul Gbadamosi Ijale (1967) N.M.L.R. 155 at 157 was cited in support; and finally,
(vii) that the Respondent in this appeal claimed to be descendant of Sofuyi Ajana and traced his radical title to that ancestor; and even though the Plaintiffs in Suit 1/144/50 who also traced their radical title to the same ancestor-Sofuyi Ajana, sued as Simitara family at that time, both of them were members of the same Sofuyi Ajana group; and the Respondent could not be heard to say that he later belonged to a different group called Odemo family. Consequently, the court was urged to allow the appeal and to set aside the decision of the Court of Appeal and to grant the claims of the Appellants.
In reply, Mr Odufalu, learned Counsel for the Respondent submitted that even though the present appeal centred around the effect of the decisions in Suit 1/144/50 and W.A.C.A. No. 233/53 there was no finding of fact or declaration of possession by the trial Judge; that the trial Judge merely dismissed the Plaintiff's claims; that there was no Counter-claim by the Defendants in the Suit, and they offered no evidence in support of their statement of defence; that the Respondent was neither bound nor affected by the said decisions because the parties in that case were different; that even if the said decisions because the parties in that case were different; that even if the said decisions awarded possession or ownership to the Appellants, the Respondent could not be bound by it; citing Halsbury's Laws 3rd Edition, Vol. 15 at page 181, paragraph 354 in support; and finally that the judgment in Suit 1/144/50 was not specifically pleaded on the issue of possession. The decision in African Continental Seaway Ltd. v. Nigerian Dredging Roads and General Works Ltd. (1977) 5 S.C. 248 at page 250 was relied upon for that proposition. The Court was therefore urged to dismiss the appeal.
It seems to me from a consideration of the grounds of appeal and the submissions thereto by learned Counsel, that one important point which has arisen from this appeal is the relevance and effect which the Judgment of Abbot, J. in Suit 1/144/50 and the appeal there from had on this case. The issue whether the two decisions operated as judgment per rem judicatam or as judgment in rem had been laid to rest by the decisions of the two Appellate Courts in Ibadan; and the reasons and conclusions given in those decisions appear to me to be indefeasible. It is therefore unnecessary to reopen the matter again in this judgment. The only other issue remaining for consideration, in my view, is whether or not the other effects of the said decisions, if any, were fully considered by the courts below. Firstly, even though the learned trial Judge held that certain aspects of the said decisions did not amount to estoppel by conduct, did he consider all the evidence adduced before him which could be regarded as "standing-by" by the Respondent's family? Secondly, did the Court of Appeal in Ibadan consider fully the effect of the said decisions as acts of ownership in favour of the Appellants so as to shift the onus on the Respondent to prove that the Appellants were not the true owners of the land in dispute? I do not think so. Let me therefore consider these two points.
On the issue of estoppel by conduct, the learned trial Judge said:-
"I find as a fact that the Defendant (the Respondent in this appeal)was not present in court nor did he take any active part in the proceedings in Suit 1/144/50 such as to make him liable upon a plea of estoppel by conduct"
The Court of Appeal did not avert to this issue at all and did not make any finding on it. However, it seems to me that the learned trial Judge did not consider all the relevant evidence adduced before him on that point before coming to his conclusion. It is to be noted that there was evidence that in 1950 one Yesufu Esu (alias Yesufu Atoloye) a senior brother of the Respondent among others trespassed on the land in dispute which gave rise to the action instituted in. Suit 1/144/50. There was also evidence that even though according to him, the Respondent was away in Benin in 1950, yet he put his brother, Shittu Atoloye as caretaker on the land at that time. If therefore the Respondent had been on the land since 1926 after succeeding his father who lived for 95 years on the land, then he must be aware of the presence of the Appellants who admittedly had been in possession of the land ten years before the 1950 Suit was instituted. Surely his brother Shittu Atoloye, the care taker, would equally have taken notice of the Appellants' presence and activities on the land. More importantly, Salawu Oyedipe (D.W.1) (a nephew of the Respondent who claimed to be a member of the Boluade branch of Odemo family to which the Respondent also belonged), categorically said that he heard of the case Simitara family had some 22 years ago (which was Suit 1/144/50) and yet he did nothing. He also said that the children of Odemo used Odemo family land in common. Hence any knowledge by him ought to be imputed to the Respondent who defended the suit for the entire Odemo family. It is also remarkable that when the Simitara family (a branch of Sofuyi Alana family) sued the Appellants in 1950, they claimed ownership of the whole land in dispute as "Sofuyi Ajana land." It was not then an issue that the land had been partitioned among the three children of Sofuyi Ajana; and that the present land in dispute belonged to the Odemo branch since 1926. Moreover, there was an occasion in 1958 when the Plaintiff in Suit 1/144/50 testified for the Respondent in this case, that when he surveyed the whole land for the 1950 case, he did it with the knowledge of Yesufu Atoloye and Jimoh Atoloye members of the Odemo branch who were in town at the time and did not protest: See the evidence of 4th Witness in the proceedings of the Customary Court Grade B at Shagamu of 10th November, 1958 between Josiah Atoloye of the Odemo family and one Daniel Sonoiki of the Ogunbery family which was tendered as Exh. G.
The sum total of all these pieces of evidences, in my view, leads to the conclusions that the members of the Odemo branch of Sofuyi Ajana family were not only aware of Suit 1/144/50, but they equally knew that Josiah Sobanjo for and on behalf of Simitara branch of Sofuyi Ajana family was claiming the whole land as Sofuyi Ajana land, and they did nothing. They stood by at the time and allowed the Simitara branch of the family to fight their cause for them in the 1950 case which was lost. They cannot therefore in my view be heard to say now that they are not estopped by conduct from relitigating the issue of ownership of the land in dispute. This equitable principle governing the issue of standing by which was laid down by Lord Penzance in Wytcherley v. Andrews (1871) L.R. 2 P&D 327 was applied by the West African Court of Appeal in Marbell v. Akwei 14 W.A.C.A. 143 at page 145. In the case, an Appellant was interested in a previous case and instead of applying to be joined as a Defendant in that case, he was content to stand by and see his battle fought by that person in the same interest. It was held that he was therefore bound by the result in that case and estopped from reopening the issue determined in that case. More elaborately, the same principle was applied by the Privy Council in a Ghanaian case of Abuakwa v. Adanse (1957) 3 All E.R. 359 the facts of which are as follows:-
"In 1940 Muronam sued Banka for a declaration of title to certain lands in Ghana. The claim was dismissed. The Stool of Akim Abuakwa to whom Muronam was subject and Stool of Adanse who claimed the land through Banka were not parties to these proceedings but knew of them. In 1954 Akim Abuakwa and Muronam claimed title to the lands as against Adanse and Banka. Adanse contended that Akim Abuakwa was precluded on the ground of estoppel by conduct since Akim Abuakwa knowingly stood by whilst the title was fought out by his subordinate in the previous proceedings."
Lord Denning, who delivered the opinion of the Board, said inter alia at page 561 that:
"The general rule of law undoubtedly is that no person is to be adversely affected by a judgment in an action to which he was not a party, because of the injustice in deciding an issue against him in his absence; but this general rule admits of two exceptions. One exception is that a person who is in privity with the parties, a "privy" as he is called is bound equally with the parties in which case he is estopped by res judicata; the other is that a person may have so acted as to preclude himself from challenging the judgment in which case he is estopped by his conduct.
English law recognises that the conduct of a person may be such that he is estopped from litigating the issue all over again. This conduct sometimes consists of active participation in the previous proceedings as for instances where a tenant is sued for trespassing on his neighbours land and he defends it on the strength of the landlord's title and does so by the direction and authority of the landlord. If the tenant loses the action, the landlord would not be allowed to litigate the title all over again by bringing an action in his own name. On other occasions the conduct consists of taking an active benefit from the judgment in the previous proceedings. Such as happened in Re Lart Wilkinson v. Blades (1896) 2 Ch. 788. Those instances do not, however cover this case which is not one of active participation in the previous proceedings or actual benefit from them but of standing by and watching them fought our or at most giving evidence in support of one side or the other."
His Lordship then applied the principle laid down in Whytcherly v. Andrews (Supra) which states thus:-
"There is a practice in this Court by which any person having an interest may make himself a party to the suit by intervening, and it was because of the existence of that practice that the Judge of the Prerogative Court held that if a person knowing what was content to stand by and see his battle fought by someone else in the same interest, he should be bound by the result and not be allowed to reopen the case. The principle is founded on justice and common sense and is acted upon in courts of equity where if the persons interested are too numerous to be all made parties to the Suit, one or two of the class are allowed to represent them; and if it appears to the court that everything has been done bona fide in the interest of the parties seeking to disturb the arrangement it will not allow the matter to be reopened."
Consequently, it was held that Akim Abuakwa was estopped from raising the question of the title to the land in the present proceedings by having taken no part in the previous proceedings where the matter to be determined was the same. Having regard to the circumstances of this case, I am satisfied that the same principle is applicable here.
Again, on the issue of possession and ownership of the land in dispute, the effect of the judgment in suit 1/144/50 were not considered at all by the trial court; and the Court of Appeal in Ibadan did not adequately deal with them either. Hence both courts put the onus of proving ownership of the said land again on the Appellants contrary to the provisions of Section 145 of the Evidence Act, Cap. 62 of the Laws of the Federation.
It is to be noted that it was pleaded in paragraph 11 of their Statement of Claim that the Appellants (the Wonpori family) had for many years been in exclusive possession of the land in dispute and openly exercised exclusive right of ownership thereon. Indeed, Abbot, J. whether rightly or wrongly awarded ownership of the said land in dispute to the Appellants in the 1950 case. Moreover, that exclusive possession of the land in dispute for at least ten years before the 1950 case was conceded to the Appellants at the West African Court of Appeal