In The Supreme Court of Nigeria
On Friday, the 30th day of March 1990
SC 4/1987
Between
Alhaji Latifu Ajuwon ...... Appellants
(Substituted for Salawu Agbongun deceased)
( for himself and on behalf of Agbongun Family)
Laditi Bolarinwa Latinwo Idowu
And
Madam Alimotu Adeoti ....... Respondent
(For herself and on behalf of entire members of Aganku Family)
suing by (Attorney) Murana Adeniyi
Judgment of the Court
Delivered by
Abubakar Bashir Wali. J.S.C.
For clarity and easy understanding of this case I shall refer to the respondent and the appellants as plaintiff and defendants respectively as done by the Court of Appeal.
The plaintiff, as per her amended Writ of Summons, sued the defendants in the High Court of Justice, Oyo State of Nigeria, Ibadan Judicial Division, claiming as follows:-
1. The plaintiff's claim against the defendants jointly and severally is for possession of the shops and building erected by the defendants on the plaintiff's family land, situated and being at Aremo Ibadan, without the knowledge and consent of the plaintiff's family and in breach of the judgment in suit No.CVA.23/64 G which awarded the plaintiff's family declaration of title and injunction against the defendants' family to all the parcel of land covered by plan OG.27A/62. The plan of the land showing recent building will be filed later. Annual rental value of the land is N20.
The pleadings originally filed by both parties in which issues were joined were also amended. The plaintiff's case against the defendants, briefly stated is as contained in the following paragraphs of her statement of claim:-
9. The plaintiff maternal grand father one Aganku derived title to the land by virtue of a grant by Ojo Oronna over 100 years ago.
10. Aganku built houses on the land in his lifetime before he died during the reign of Bale Oshuntoki 1895-1897.
11. After the death of Aganku, the descendants of Aganku continued to farm on the land without any disturbance from anybody.
12. The land being claimed by the plaintiff is shown on plan No.OG.544/80 drawn by Akin Ogunbiyi Licensed Surveyor dated 2Oth of August, 1980 and verged RED and the new buildings erected by the defendants after judgment in suit Nos.LJ42/63 and CVA/23/64 are verged Green.
13. The 1st - 4th defendants in suit No.CVA/23/64 were restricted to the houses owned by them as at the time of judgment on 7th November, 1966 and plan No.0G127A/62 in the following terms:-
(i) The plaintiff and his Aganku Family are hereby declared the owner of the land verged RED on plan No. OG/27A/62 dated 29/1/62.
(ii) The defendants and members of their respective households may continue in occupation of their respective houses and other building now on the land verged RED on plan No.OG.27A/62 but may not erect any other buildings on the said land without the permission of the plaintiff.
14. The plaintiff appealed against the above judgment which refused the injunction but the appeal was dismissed thereby confirming the judgment as set out in paragraph 13 above.
15. The defendants have since the judgment in appeal No. CVA/23/64 trespassed and built the houses verged Green without the knowledge and consent of the plaintiff's family.
The defendants' case is as also stated in the following paragraphs of their amended Statement of Defence:-
13. Agbongun was a warrior and he came from Oyo-Ile and first settled at Oja-Iba, Ibadan with Bashorun Oluyole.
14. After a short stay at Oja-Iba, Bashorun Oluyole granted Agbongun land at Oranyan, Ibadan where he again settled down with his family.
15. After a long spell at Oranyan and because of the frequent death of the children of Agbongun; Agbongun finally moved his remaining members of family to Aremo, Ibadan, on the land he had earlier acquired and on which he was carrying on farming activities.
16. Agbongun built another house at Aremo, Ibadan which was inhabited by members of his family and he named the said house "Okebo Olorun pelu."
17. Agbongun settled at Aremo before Aperin did settle there.
18. After Agbongun had settled his entire family at Aremo, Ibadan, he went back to Oyo-Ile from where he brought his junior brother, Aganku to stay with him at Aremo.
19. Agbongun acted faithfully to Aganku in Loco parentis; funding a marriage for him (Aganku).
20. Agbongun later granted parcels of land to many people including his father-in-law, called Adigun, Bolarinwa, who was the ancestor of the 3rd defendant; Adejinmi, Ajayi Odegbenle, the ancestor of the 5th defendant; Oshingbaosu and Fabikan the ancestor of the 4th defendant, all the grantees built up the different parcel of land so granted to them by Agbongun.
21. The defendants will contend at the trial of this case that Ojo Oronna had no land near the land of Agbongun at Aremo, Ibadan.
22. With reference to paragraph 11 of the Statement of Claim, the defendants aver that Aganku built up only that parcel of laud so granted to him by Agbongun which is quite distinct from the other grants made by Agbongun or the remaining parcel of land of Agbongun at Aremo, Ibadan.
23 With regard to paragraph 12 of the Statement of Claim, the defendants aver that all the buildings of the defendants' different families occupying the different holdings so granted to them by Agbongun had been built and occupied by the defendants' families long before Suits No.1I42~63 and CVA/23/64.
24. The defendants will contend at the trial that no new buildings were set up by them after 1973."
Both parties called witnesses. Survey plans of the disputed land in a previous case and the present case were tendered through P.W.3, a Licensed Surveyor and admitted in evidence as Exhibits C and D respectively. Also tendered and admitted in evidence through witnesses called by the plaintiff were certified true copies of judgments between the plaintiffs family and the defendants and these were marked as Exhibits A, Al, B, E and F.
At the conclusion of the case for both the plaintiffs and the defendants, and on the application of Mr. Aderemi, learned Counsel for the defendants, the learned trial Judge went and inspected the land in dispute. As shown by the record the learned trial Judge was accompanied by the parties and their counsel to wit Messrs. Adebola and Aderemi for the plaintiff and the defendants respectively. At the locus the learned trial Judge made some notes and when the court reconvened in the court hall, he read out his notes to the parties and their counsel. P.W.3 and 2nd defendant were recalled for further re-examination and cross-examination. Learned counsel then addressed the court and judgment was reserved to 17th January, 1983. On that date, the learned trial Judge in a well considered judgment, dismissed the plaintiff's case against the 2nd and 4th defendants and found against the 1st, 3rd and 5th defendants as follow:-
On the totality of the evidence I find as a fact that the shops in front of the 3rd defendant's buildings said to be built by the 3rd defendant; and the houses shown verged green stretching from the Aperin/Aremo road to the 3rd defendant's buildings and built by the 1st and 5th defendants (the house immediately abutting the road aforementioned being the 5th defendant's) were all built after the 1963 case.
I hold on the evidence before me that all the defendants are bound by the judgment in the 1963 case. The 1st defendant is a member of the family represented by Salami Agbongun in the 1963 case. The 1st defendant's evidence before me and a careful study of the judgment relating to that case both at first instance and on appeal show that the case was defended by Salami Agbongun not in his own right but in a representative capacity. The 3rd defendant is a party to the 1963 case. The 5th defendant has not proved to my satisfaction that he derived title to the area he built on before 1963 action. In the result the limited injunction contained in Exhibit A in terms earlier set out is binding on the 1st and 3rd defendants. The 5th defendant is bound by the judgment declaring the plaintiff's family to be the owner of the land. He has not proved that he derived title from that family.
In view of the fact that the plaintiff herself appeared before me and indeed testified and of the fact that the action was in her name, I do not find the technicality as to the contents of the power of attorney material. If the power of attorney is ineffective as contended, the fact remains that the plaintiff Alimotu Adeoti instituted the action herself and appeared to prosecute it. The action is properly constituted in my judgment.
On the whole, and on the totality of the evidence, I find the case proved against the 1st, 3rd and 5th defendants and not proved against the 2nd and 4th defendants. No question of equitable defence arises in this case in favour of the 1st, and 3rd defendants who have put up buildings in clear breach of the injunction contained in Exhibit A. As for the 5th defendant there is no evidence on which the pleas of laches and acquiescence can be based in his favour his defence which failed being that the house was put up by his grand-father.
I therefore entered judgment for the plaintiff against the 1st, 3rd and 5th defendants and order that within 3 months of this judgment they do yield up possession of their respective buildings shown verged green on plan No.OG.544/80 (Exh. D) to the plaintiff.
The 1st, 3rd and 5th defendants appealed to the Court of Appeal against the judgment while the plaintiffs cross appealed against the dismissal of her case in respect of the 2nd and 4th defendants.
The Court of Appeal, after considering the briefs filed by the appellants/respondents and the respondent/cross appellant and the oral submissions by their learned counsel in elaboration of their briefs, Uche Omo, J.C.A. delivering the unanimous judgment of that court in which he painstakingly considered all the issues raised and argued, dismissed both the main appeal and the cross appeal and made the following order on costs:-
The respondents in each case are entitled to costs which I assess as follows:-
(1) In favour of the plaintiff against the 1st, 3rd and 5th defendants, the sum of N200.00
(2) In favour of the 2nd and 4th defendants against the plaintiff, the sum of N150.00.
The defendants have now further appealed to this court. Both parties filed briefs and made oral submissions in elucidation to some points therein.
In the Court of Appeal leave to file and argue five grounds of appeal which were described by the appellants as of mixed law and facts was sought.
Ground 1 of the five grounds was considered by the Court of Appeal to be a ground of law and therefore no leave was required while leave to argue grounds 2 to 5 was refused. The defendants then filed an application before this court with the usual prayers for leave to file and argue 7 additional grounds of appeal. Counsel asked also as regards ground 8 of the additional grounds for leave to raise new points not raised in the lower courts. Leave to argue additional grounds 2 to 7 was granted while leave to argue the 8th ground was refused. So altogether 7 grounds were filed and argued on the defendants' behalf.
Briefs, original and complementary, were filed for and on behalf of the defendants, and same were filed for and on behalf of the plaintiff. These were orally elaborated upon by both parties.
In the original brief filed by the defendants, four issues were formulated for determination while two more were formulated in the supplementary brief. I shall renumber the two issues in the supplementary brief as Nos.5 and 6 respectively. The issues are:-
1. On a proper construction of the judgment in CVA/23/64 at pages 80-85 of the records by itself and without supplementing it by other evidence "viva voce" at the High Court trial, were the Justices of the Court of Appeal right in their confirmation of the High Court finding and conclusion drawn from that judgment (i.e. in CVA.23/64) that "There cannot be any doubt that his successors in title are bound by the result of that suit. The 5th defendant, Latinwo Idowu, was not a party to the 1963 suit, but he would be bound by the result of that suit if he relies on title derived from Agbongun family after the 1963 suit.
2. In their review and consideration of the submissions before them of the trial court consideration of the respondents' case at pages 186-187 of the records, were Their Lordships of the Court of Appeal right when at lines 17 to 20 at page 187 of the records they held as follows:"....The learned trial Judge was therefore right in my view in holding that the 1st defendant in the present case is bound by the judgments aforementioned" in the absence of any plea of "standing by" by the respondents in their statement of claim at pages 43-47 of the records?
3. Is the action for possession brought by the respondent not tantamount to enforcement of the judgment in CVA.23/64 alleged breached by the respondents as postulated by the respondent's writ of summons at page 49 of the records?
(a). If the answer to the foregoing is in the affirmative, is the respondent's action in the suit not vexatious or does it not amount to an abuse of court process, when by the Sheriffs and Civil Process Law, Cap. 117, Laws of Oyo State, adequate provisions exist for the enforcement of such subsisting judgment?
4. The respondents' claim not being for forfeiture as borne out in their writ of summons at page 49 of the records, were Their Lordships of the Court of Appeal right in confirming the trial court's order for possession made against the appellants when the breach of the judgment alleged in CYA. 23/64 is relevant only on a claim properly formulated by the respondents for forfeiture, or enforcement of such judgments by appropriate legal process.
5. Whether the Learned Justices of the Court of Appeal were correct when they held that the plaintiff Madam Alimotu Adeoti could sue through her attorney on behalf of the Aganku family.
6. Whether the judgments in Exhibits A and Al are binding on Agbongun Family.
These were virtually adopted by the plaintiff in both her original and supplementary briefs, save that preliminary objection was raised in respect of issues Nos.3 and 4 on ground that these are issues being raised for the first time before this court, which were not pleaded, and therefore no arguments were presented either in the trial court or in the Court of Appeal for and against them. Counsel contended that the defendants are introducing these issues now as delaying tactics.
These issues are covered by ground 6 of the defendants' ground of appeal.
The Ground reads:-
The Learned Justices of the Court of Appeal erred in law in confirming the decision of the trial court ordering possession of the buildings occupied by the 1st, 3rd and 5th defendants/appellants when the complaint of the plaintiff was for a breach of EXHIBITS A, Al and C being subsisting judgments of the Customary Courts Grades A and B and the High Court and the plaintiff should have sought the enforcements of these judgments under the provisions of the Sheriffs and Civil Process Law, Cap. 17 Laws of Oyo State rather than instituting a fresh action.
It is abundantly clear from the ground of appeal (supra) that the defendants are contending that the proper step to be taken by the plaintiffs to have the judgments in Exhibit A enforced is by initiating proceedings under the pro-visions of the Sheriffs and Civil Process Law, Cap. 117 of Laws of Oyo State, but not by filing a fresh suit.
The defendants, neither in the trial court nor in the Court of Appeal made the issues now being raised for the first time before this court, point of Contention between the plaintiff and the defendants. I am not unmindful of the fact that ground 6 is one of the additional grounds the defendants were granted leave to file and argue. See the Ruling of Nnamani, J.S.C.(presiding) of 12th December, 1988.
By the provision of Order8 Rule 2(5) of the Supreme Court Rules, 1985 which provides that:-
(5) The appellant shall not without the leave of the court urge or be heard in support of any ground of appeal not mentioned in the A notice of appeal, but the court may in its discretion allow the appellant to amend the grounds of appeal upon payment of the fees prescribed for making such amendment and upon such terms as the court may deem just
an appellant is enabled to apply and ask leave of court to file and argue a ground of appeal not contained in the original grounds filed. It is a condition B precedent that the points to be raised in the additional ground must have been raised in either of the courts below. But where he intends to raise for the first time a point or points not raised in the courts below, the provision of Order 6 Rule 5(1) of the Supreme Court Rules, 1985 will apply. Sub-rule (1) of Order 6 Rule 5 enacts as follows:-
5. (1) The appellant shall within ten weeks of the receipt of the Record of Appeal referred to in Order 7 file in the court and served on the respondent a written Brief, being a succinct statement of his argument in the appeal. The Brief, which may be settled by counsel, shall contain what are, in the appellant's view, the issues arising in the appeal. If the appellant is abandoning any point taken in the court below, D this should be so stated in the Brief. Equally, if he intends to apply in the course of the hearing for leave to introduce a new point not taken in the court below, this should be indicated in his Brief.
The provision (supra) clearly stipulates the procedure to follow where an appellant is desirous of raising and introducing a new issue or issues not taken in the court below. In Amusa Opoola Adjo & Amos Afolabi v. The State (1986) 2 NWLR (Pt.24) 581 at 587, this court stated on the same point as follows:-
Leave to argue additional grounds is not the same as leave to argue and urge issues not raised in the court below. But the rule that an appellant will not be allowed to raise on appeal a question F not canvassed in the court below is not an inflexible and rigid rule. It is subject to the demand of justice. Thus where the question involves substantial points of law, either substantive or procedural, the court may entertain the appeal all the same and prevent an obvious miscarriage of justice."
The new issue being raised must be such that it would not require the adduction of any additional evidence so that the other party would not be taken by surprise. In other words, the issue must have been covered by the proceedings before the courts below.
As regards the new issues being introduced by the defendants for the first time in this court, no leave was sought to raise and argue them, nor did the defendants state in their brief that they intend to raise and urge such issues. The fact that leaves was granted to the defendants to file ground 6 does H not automatically confer on them the authority to urge and argue the new issues. They must seek and obtain leave of the court to do that.
Apart from the fact that the defendants did not obtain leave of this court to raise the new issues, the issues are not, in my view, substantial, either substantive or procedural, that may result in an obvious miscarriage of justice if not taken In my view, the plaintiff had adopted a proper procedure by initiating a fresh action to claim possession of the land and the improvements thereon, which the defendants have illegally entered and trespassed upon. The objection of the learned counsel for the plaintiff is therefore sustained and the fresh issues being introduced without leave under the cover of ground 6 cannot be entertained; accordingly issues 3 and 3(a) raised there-under are improperly introduced and are hereby struck out.
Issue No.4 in the defendants' brief is more or less the same as issues 3 and 3(a), though differently worded. The issue canvassed is identical to those canvassed in 3 and 3(a) (supra) It is an issue being raised for the first time without leave of this court. Therefore, issue No.4, for the same reasons expressed on issues 3 and 3(a), is declared incompetent and accordingly struck out.
Issues Nos. 1, 2 and 6 are inter-related because they touch on the effect of Exhibit A and Al to wit, judgments in CVAI23164 and L.42/63 respectively.
It was the submission of learned counsel for the defendants that Exhibits A and Al are not binding on Agbongun Family as he puts it, because there is nothing on the record to show that Salami Agbongun - the first defendant in Exhibit Al was sued as representing Agbongun Family. It was his contention that where a customary court is presided over by a Legal Practitioner or where such a legal practitioner has howsoever adjudicated on such claims, the principle postulated in Karirnu Ajagunjeun v. Sobo Osho (1977)5 SC. 89 does not apply. In the case (supra), the principle of law enunciated therein stated that where a trial was conducted before a customary tribunal, in order to ascertain what was really the nature and subject- matter of the claim and the capacities in which the parties on either side litigated, the entire proceedings before that court must be looked at and considered. Learned counsel further submitted that both the trial court and the Court of Appeal were wrong in admitting the evidence given by the 1st defendant that
when Aganku Family sued our Family (Agbongun Family) in 1963 they (i.e. Salami Agbongun) defended the action on our behalf,
to vary the contents of Exhibit A and Al, which are the judgments of the appellate and the trial customary courts respectively, as that was against Sections 131 and 226 of the Evidence Act. He cited the following cases in support of his submissions
Ebueku v. Amola (1988) 2 NWLR (Pt.75) 128;
Abiodun & Ors. v. Ogunyomi (1962)1 ALL NLR 550;
Ikpe v. Sokari George [l958 SCNLR 482 at 485;
Shitta-Bey & Ors. v. Lagos Executive Development Board (1962) 1 ALL NLR 373;
Coker v. San yaolu (1976) 9-10 SC.203
Ayeni v. Sowemimo (1982) 5 SC.60.
In reply to the above submissions, learned counsel for the respondent, submitted that Exhibits A and Al both being judgments of competent courts are binding on the 1st defendant and the Agbongun Family since Salami Agbongun (the 1st defendant and 1st respondent in Exhibits A and Al respectively) defended the action in his capacity as the Head of the Agbongun Family and that the findings of the trial court in Suit No. 1/265/80 which were affirmed on appeal in CA/1/50/84 that Salami Agbongun was the Head of the Agbongun Family and that he defended Exhibits A and Al as a representative of that Family, cannot be faulted. Learned counsel also submitted that the evidence given by 1st defendant is admissible under sections 26 and 150 of the Evidence Act as it is an admission against interest which has the force of equitable estoppel in pais otherwise known as estoppel by conduct. He relied on the following decisions in support of his submissions - Joe Iga & Ors. v. Chief Ezekiel Amakiri & 4 Ors. (1976)11 SC.1 at pages 12 and 13; Rourafric & Far Eastern Ltd. v. John Chief Avbenake & 2 Ors. (1958) WRNLR.92, Chief Dugbo & Ors. v. Chief Kporoaro & Ors. (1958) WRNLR.73; (1958) SCNLR 180; John Esan v. Fagbemide Olowa (1974) 3 SC.125 and Augusto v. Joshua (1962)1 ALL NLR 312.
For a defence of plea of res judicata to succeed:-
1. The parties in the previous action and the present action must be the same;
2. The subject matter of litigation in the previous action, must be the same as the one in the present action;
3. The claim in the previous action must be the same as the one in the present action;
4. The judgment in the previous case must be given by a court of competent jurisdiction, and
5. The decision must be final, in other words, it must have finally disposed of the rights of the parties.
See Ihenacho Nwaneri v. Oriuwa & Ors. (1959) 4 FSC 132, (1959) SCNLR E 316, William Ude & Ors. v. Josiah Agu & Ors. (1961)1 All NLR 65; [1961] 1 SCNLR 98 and Wilson Etiti & Ors. v. Peter Ezeobibi of Umuosha Oguta (1976)12 SC.123. Exhibits Al and A are judgments of customary courts. It is trite that in order to ascertain in what capacity a party initiates or defends an action in the customary court, the whole proceedings should be looked at and considered with a greater latitude and broad interpretation being placed F on the proceedings and the judgment in that court. See Ajayi (substituted for Salihu) The Balogun of Ijanna v. Ama, The Oba of Ibese (1942)16 NLR.67. It is not an inflexible rule.
In Exhibit Al which is the judgment in L.42~63, Joseph Adeogun was given the power of attorney to sue and claim on behalf of Aganku family the land delineated in a survey plan tendered and admitted in evidence as Exhibit C. In that case, Salami Agbongun, Ashiru Adewuyi, Shaditi Bolarinwa and Laore Fabikan appeared as 1st, 2nd, 3rd and 4th defendants respectively. In Exhibit Al judgment was given in favour of the plaintiff against the defendants in the following terms:-
Judgment:- of this court is for Joseph Adeogun and Aganku family for
1. Title to, ownership and recovery of piece of land verged Red in the Survey Plan No.O6.27A/62 of 20.5.64 (Exhibit E") drawn by S. Akin. Ogunbiyi, Licensed Surveyor. The value of the land
2. Injunction restraining the defendants, their Agents, or anybody claiming through them from further trespassing thereon, except the portions already occupied and built upon by the 1st, 2nd, 3rd and 4th defendants, as shown in Exhibit "B".
The plaintiff was not completely satisfied with the judgment and appealed to the Ibadan City No.1 Grade "A" Customary Court. In the judgment of that court, which is now Exhibit A in the present proceedings, the appeal partially succeeded and Exhibit Al was modified as follows:-
(1) The plaintiff and his Aganku Family, are hereby declared the owners of the land verged "RED" on Plan No.OG.27A/62 (Exhibit 'B' in the case).
(2) The defendants and members of their respective households may continue in occupation of their respective houses and other buildings now on the land verged RED on Plan No.OG.27A/62 of 29/1/62 (Exh. 'B'), but may not erect any other buildings on the said land without the permission of the plaintiff and his family.
Each party to bear its own costs.
It is pertinent to mention at this stage that the 2nd, 3rd and 4th appellants were the 2nd, 3rd and 4th defendants in Exhibit Al also.
Joseph Adeogun lodged further appeal to the High Court of Justice, Western State, Ibadan Judicial Division and his appeal was dismissed by Craig, J., (as he then was). The judgment is now Exhibit E in the present proceedings.
In another suit to wit, No.1/220/70: Murana Adewuyi v. Ashiru Adewuyi affecting part of the same piece of