JUDGMENTS OF THE NIGERIAN COURTS OF JUSTICE
Restoring Nigeria's Law to Nigeria's People - One by One
1. ISIAKA HASSAN
JOHN AFOLABI FABIYI, J.S.C. (Delivering the Leading Judgment):
At the trial High Court of Lagos State, the plaintiffs who are respondents in this appeal claimed as follows:-
declaration that the plaintiffs are the persons entitled
to the grant of a Certificate of Occupancy in respect of
the area of land measuring approximately 26.3276
hectares situate at Aiyetoro Village, Badagry, Lagos
State and verged RED on Survey Plan No. CD 223/74 dated
20th December, 1973 prepared by C. Olu Dawodu, Licenced
(ii) N200,000:00 damages for trespass committed by the Defendants, their servants and agents.
(iii) An injunction restraining the Defendants, their servants and agents from continuing or committing further acts of trespass on the said land."
on being served with the statement of claim, filed their
statement of defence which was accompanied by a
counter-claim that reads as follows:-
"(a) Forfeiture of the plaintiffs' customary tenancy of the land in dispute to the defendants who are the original land owners and overlords, for challenging the defendants' title.
of the whole portions of land belonging to the
defendants and which the plaintiffs held of them as
(c) A declaration that the defendants are the persons entitled to the grant of statutory/customary right in respect of the area of land forming the subject matter of this suit.
Injunction restraining the plaintiffs, their servants,
agents and privies from exercising any rights of
ownership of the said land.
(e) =N=500,000:00 damages
(f) Further and or other reliefs."
It is apt to state the facts briefly. The plaintiffs maintained that the land known as Aiyetoro belonged originally to the defendants, family - Balogun Osolo Family. That many years ago, the Balogun Osolo family made an outright grant of the land in dispute to the plaintiffs' ancestor, Hassan Komolafe in consideration of the payment of the customary purchase price and thereby became the absolute owners of same. They used the land as such since the grant was made. As such owners, the plaintiffs maintained that they continuously and on diverse occasions have let and sold the land to strangers who have built substantial houses thereon without protest from the defendants none of whom live in Aiyetoro. The present action was caused by the defendants' forcible entry onto the land in 1996.
on their part, agree that they made a grant of the land
in dispute to the plaintiffs but contend that the grant
was in the nature of a customary tenancy subject to
payment of rent or tribute to the defendants' family.
The learned trial Judge garnered evidence and was duly addressed by learned counsel to the parties. In the judgment delivered on 18th November, 1996, the learned trial judge accepted that the land in dispute was granted to the plaintiffs by the defendants. He rejected the plaintiffs, claim for title as he held that the grant to them was in the nature of a customary tenancy. Heavy reliance was placed on Exhibit E which the plaintiffs maintained was an unpleaded record of evidence of witnesses and judgment in an earlier case as well as unpleaded Exhibits G - G1 by the trial Judge who entered judgment for the defendants on their counter-claim.
The plaintiffs who were not satisfied with the judgment of the trial court appealed to the Court of Appeal, Lagos Division ("the court below" for short). In its judgment delivered on 22nd November, 2001 the court below set aside the judgment of the trial High court. It maintained that Exhibits E, G and G1 upon which the judgment of the High Court was based were neither pleaded nor tendered in proof of any pleaded fact. Exhibit E was not admissible being substantially the record of evidence of witnesses in a previous case and there was no compliance with section 34 of the Evidence Act. Further, that Exhibit E cannot bind the plaintiffs because they were not parties to it. The award of damages in favour of the defendants/counter-claimants was wholly inconsistent with their case of forfeiture and same cannot stand in the absence of any claim for special damages. The court below found that the trial judge made findings which cannot be supported by the facts. It felt that the counter-claim for 'reclamation' is unknown to our law and ipso facto the order in the same terms cannot stand.
felt unhappy with the stance posed by the court below
and has appealed to this court. In the brief of argument
filed on behalf of the appellants, the five issues
distilled for a due determination of the appeal read as
"(a) Whether the learned justices of the Court of Appeal were right to have allowed the appeal when from the evidence before the court the plaintiffs had not proved their case.
the learned justices of the Court of Appeal were right
to have set aside the grant of the claim for reclamation
of land on the ground that the manner the claim is
framed is not known to law
the learned justices of the Court of Appeal were right
in reversing the decision of the Trial Court on the
issue of laches and acquiescence.
the learned justices of the Court of Appeal were right
to have held that Exhibit E was inadmissible on the
ground that it was not pleaded, and did not comply with
section 34 of the Evidence Act and could not operate as
res judicata against the respondents.
(e) Whether the learned justices of the Court of Appeal were right to have held that Exhibits G - G1 were inadmissible on the ground that they were not pleaded."
On behalf of the respondents, three (3) issues decoded for a proper determination of the appeal read as follows:-
Exhibits E, G and G1 were admissible in evidence and are
binding on the respondents having regard to the
E, G and G1 were neither pleaded by either side nor
tendered in proof of any pleaded fact.
E, the record of evidence of witnesses in a previous
case was tendered without compliance with section 34 of
the Evidence Act.
the individual respondents nor their family i.e. the
Hassan Komolafe family was party in Exhibit E.
is no evidence on record that the land litigated upon in
Exhibit E is the same as the land now in dispute.
the appellants' counter-claim for 'reclamation' is known
the learned trial judge made a fair assessment of the
I wish to start the consideration of this appeal with regard to issues (d) and (e) formulated on behalf of the appellants which have the same tone with issue 1 as couched on behalf of the respondents. They touch on the propriety or otherwise of the admission in evidence of Exhibits 'E' 'G' and G1 by the trial court and whether they are binding on the respondents.
Learned counsel further submitted that Exhibit E should operate as res judicata to prove that the respondents are tenants to the appellants and that they were not given absolute grant of the land in dispute.
With respect to Exhibits G and G1, learned counsel for the appellants submitted that the fact that Exhibit G-G1 were not specifically mentioned in paragraph 6 of the Statement of Defence and Counter-Claim does not mean that they were not pleaded. He felt that it was for the respondents to ask for further particulars of such documents as observed by the trial judge.
Learned senior counsel for the respondents maintained that Exhibits E, G and G1 were neither pleaded by either side nor tendered in proof of any pleaded fact. Exhibit E, the record of evidence of witnesses in a previous case was tendered without compliance with section 34 of the Evidence Act, He further observed that neither the individual respondents nor their family was a party in Exhibit E and that there is no evidence on record that the land litigated upon in Exhibit E is the same as the land in dispute herein.
counsel to the respondents further observed that Exhibit
E is the record of proceedings and judgment in Suit No.
CT.JCC/425, Yusuf Salami and Family v. Abu Bakare
Yesufu. He maintained that it was not part of the case
pleaded by either party at the trial court that there
was any litigation on the land in dispute prior to the
commencement of the current proceedings. As such,
Exhibit E was not tendered in proof of any pleaded fact
and ought to have been rejected when objection was taken
to it. He felt that Exhibit E goes to no issue.
Let me say it right away that the object of pleadings is to require each party to give notice to his opponent with clarity and precision of the case which he is to meet. Each party is expected to place his cards on the table face-up. This is essential to prevent any of the parties from being taken by surprise and enable them frame and prepare their cases for trial. Paragraph 6 of the Statement of Defence and Counter-Claim which says the defendants shall rely on all related documents in their possession on the said land at the trial and all relevant Survey plans including Survey Plan No. SEW/73016 does not disclose any fact in proof of which Exhibits E, G and G1 could have been properly tendered and admitted.
Evidence given by a witness in a judicial proceedings,
or before any person authorized by law to make it is
relevant for the purpose of proving, in a subsequent
judicial proceedings, or in a later stage of the same
judicial proceedings, the truth of the facts which it
states, when the witness is dead or cannot be found,
or is incapable of giving evidence, or is kept out of
the way by the adverse party or when his presence
cannot be obtained without an amount of delay or
expense which in the circumstances of the case, the
court considers unreasonable.
(a) That the proceeding was between the same parties or their representatives in interest.
(b) That the adverse party in the first proceedings had the right and opportunity to cross-examine, and
(c) That the questions in issue were substantially the same in the first as in the second proceedings."
be noted here that the appellants did not establish
that the witnesses who testified in Exhibit E were
dead or cannot be found, or were incapable of giving
evidence, or were kept out of the way by the
respondents or that their presence could not be
obtained without such delay or expense as the court
would have considered unreasonable. There was no
attempt to comply with the conditions in the above
proviso to section 34 of the Evidence Act.
been pronounced with force long ago by this court in
Alade v. Aborishade (1960) 1 NSCC 111 at 115 per
Abbot, FJ 'that evidence given in a previous case can
never be accepted as evidence by a court trying a
later case where section 34(1) of the Evidence
Ordinance applies. The evidence given in an earlier
case by persons who also testify in a later case may
be used for cross-examination as to credit but is of
no higher value than that. The judgment in an earlier
case frequently is used perfectly properly in a later
case, the classic instance being, of course, on a plea
of res judicata but it can properly be used there
provided the incidents necessary to support such a
plea are fully observed'.
has been further established and/or reinforced. See:
Shonekan v. Smith (1964) 1 All NLR 313 Ayinde v.
Salawu (1989) NWLR (Pt. 109) 297 at 315; Dada v.
Bankole (2008) 1 SC (Pt.111) 219 at 230.
The appellants contended that Exhibit E is relevant and admissible as an admission against the interest of the respondent's Family. The contention is far-fetched as the respondent's Family - Hassan Komolafe Family is not a party to Exhibit E. In the prevailing circumstances Exhibit E was not properly admitted by the trial court. The court below was right when it found that same was inadmissible. See: the case of Eghobamien v. FMBN (2002) 17 NWLR (Pt. 799) 488 at 500.
The appellants attempted to rely on Exhibit E as constituting res judicata which has been defined as
adjudged; a thing judicially acted upon or decided; a
thing or matter settled by judgment. Rule that a final
judgment rendered by a court of competent jurisdiction
on the merits is conclusive as to the rights of the
parties and their privies and so to them constitutes
an absolute bar to a subsequent action involving the
same claim, demand or cause of action. See Matchett v.
Rose 36 III App 3d 638, 344, NE 2d 770, 779 - A matter
once judicially decided is finally decided - To be
applicable, requires identity in thing sued for;
identity of cause of action, persons and parties to
the action' (Blacks Law Dictionary Sixth Edition
The point that I wish to make here is that even if Exhibit E is admissible, it cannot bind the respondents - Hassan Komolafe Family as estoppel because they were not party to it. There is no evidence on record upon which it can be rightly inferred with adequate precision and certainty that the land litigated upon in Exhibit E is the same as the land now in dispute herein. This is because no plan was tendered in Exhibit E. The attempt by the trial judge to tie Exhibit E tendered by the appellants to the respondents' Exhibits F and F1 was without justification and to no avail in the absence of any plan tendered in Exhibit E. As well, contrary to the flawed finding of the trial judge, none of the plaintiffs was referred to in Exhibits G and G1.
I cannot fault the stance taken by the court below in
question is whether a person is owner of anything of
which he is shown to be in possession, the burden of
proving that he is not the owner is on the person who
affirms that he is not the owner."
It has been shown that the appellants failed to prove their assertion of customary tenancy by admissible, credible and cogent evidence. The appellants placed themselves within the consequence of their admission of the respondents' exclusive possession. See: Dada v. Bankole (2008) 1 SC (Pt. 111) 219 at 258 - 259; Raphael Udeze & Ors. v. Paul Chidebe & Ors. (1990) 1 SC. 148; (1990) 1 NWLR (Pt. 125) 141 at 160-161.
The last point which I wish to touch briefly is the appellants' counter-claim for 'reclamation'. This claim was loosely framed by counsel to the detriment of his client. No court of record should encourage such a carefree attitude by counsel. The court below was correct in its stance that same is not known to law and that the order made by the trial court in respect of the far-fetched claim should be set aside.
I read before now, the judgment of my learned brother, Fabiyi, JSC, just delivered. I am in agreement with him that the appeal should be dismissed. I hereby dismiss the appeal. I abide by all orders made in the lead judgment including one on costs.
I have had the privilege of reading in draft the judgment of my learned brother, John Afolabi Fabiyi just delivered which decision and reasoning I agree with. In support I shall make some comments.
FACTS BRIEFLY STATED
The background leading to this appeal stated as follows.
On the whole, four (4) witnesses testified for the respondents whilst one (1) witness gave evidence for the appellants.
The appellant's case was that their family - the Balogun Osolo family - is the owner of the land in dispute and the family never made any absolute grant to the respondents who were only granted customary tenancy of the said land in dispute by the appellants' family for which respondents' family paid rent (Isakole). They said that this status of the respondents being customary tenants of the appellants has not changed to the present day. They said further that the respondents-contrary to their status as tenants- have been alienating portions of the land in dispute by way of transfer and sale and they have also been building on the land and have also challenged the title of the appellants as their overlords. It is the case of the appellants that by reason of the respondent's aforementioned acts, and by their act of challenging the appellants' title, the respondents ought to forfeit their tenancy.
In the course of their evidence, the appellants tendered in evidence Exhibit E which is a Certified True Copy of the Customary Court Judgment in Suit No. CT/425/74 in which the appellants' ancestors sued and obtained judgment against the respondents' ancestors for rent in respect of the land in dispute. The said Exhibit E was tendered through PW3 under cross-examination to disprove his earlier testimony that their ancestors were given an absolute grant of the land in dispute.
The appellants appealed to the Court of Appeal which set aside the judgment of the trial court and ruled in favour of the respondents hence this appeal before this apex court.
The hearing of the appeal was on the 28th October 2013 at which learned counsel for the appellants adopted their amended Brief of Argument settled by O. M Lewis (Miss) filed on 31/10/07 and in it were formulated six issues for determination, viz:
1. Whether the learned Justices of the Court of Appeal were right to have allowed the appeal when from the evidence before the court the plaintiffs had not proved their case.
2. Whether the learned Justices of Court of Appeal were right to have set aside the grant of the claim for reclamation of land on the ground that the manner the claim is framed is not known to law.
Whether the learned justices of the Court of
Appeal were right in reversing the decision of the Trial
court on the Trial court on the issue of laches and
Whether the learned Justices of the Court of
Appeal were right to have held that Exhibit E was
inadmissible on the ground that it was not pleaded, did
not comply with Section 34 of the Evidence Act and could
not operate as res judicata against the respondents,
5. Whether the learned Justices of the Court of Appeal were right to have held that Exhibits G - G1 were inadmissible on the ground that they were not pleaded.
the appellants was also adopted a Reply Brief settled by
Alade Babatunde Kasunmu, filed on 17/10/12 and deemed
filed on 10/7/13.
the respondents, learned counsel on their behalf adopted
the Further Amended Respondents' Brief settled by Tani
A. Molajo SAN and filed on 5/12/11. In the brief were
raised three issues for determination which are as
Whether Exhibits "E' "G' and "G1' were admissible
in evidence and are binding on the respondents having
regard to the following:-
(a) Exhibits "E' "G' and "G1' were neither pleaded by either side nor tendered in proof of any pleaded fact.
(b) Exhibit "E' the record of evidence of witnesses in a previous case, was tendered without compliance with Section 34 of the Evidence Act now S.46 of the Evidence Act 2012.
(c) There is no evidence on record that the land litigated upon Exhibit E is the same as the land now in dispute.
Whether the appellants' counter-claim for
"reclamation" is known to law.
Whether the learned trial Judge made a fair
assessment of the evidence,
ISSUE 1, 2 & 3
These call to question whether the Court of Appeal was right to allow the appeal and set aside the judgment of the trial court.
Learned counsel for the appellants went on to contend that the law is trite that the substance is what should be examined and determined and not the form. That where there is substantial compliance with the substance, slavish adherence to the form is not demanded. He referred to the case of Bucknor-Maclean & Anor v Inlaks Limited (1980) NSCC 232. That in the counter-claim, the appellants had sought for a relief described as reclamation which really translates to forfeiture of the customary tenancy of the respondents and the repossession of the land in favour of the appellants. He cited Lasisi & Anor v Tubi & Anor (1974) NSCC 613 at 615 - 616; Dabiri & Ors v Gbajumo (1961) NSCC 114 at 116 - 117.
of counsel stated further that possession is the
substance of the claim of the appellants and so the form
in which that claim was couched is of no moment.
Responding on behalf of the respondents, Mr Tani Molajo SAN submitted that implicit in the appellants' contention that the respondents are their customary tenants is an admission that the appellants put the respondents in possession of the land in dispute and so proof of handing over in the presence of witnesses is obviated. He anchored on Section 146 of the Evidence Act; Dada v Bankole (2008) 1 SC (Pt. 111) 219 at 258 - 259; Raphael Udeze & Ors v Paul Chidebe & Ors (1990) 1 SC 148.
When the question is whether any person is
owner of anything of which he is shown to be in
possession, the burden of proving that he is not the
owner is on the person who affirms that he is not the
on ground seem to make relevant and applicable the
decision of this court in Raphael Udeze & Ors v.
Paul Chidebe & Ors. (1990) 1 SC. 148 per
Nnaemeka-Agu JSC wherein he stated at pages 160 - 161
"It is left for me to mention that the courts below also found that although the appellants pleaded that the respondents were their customary tenants who occupy the land in dispute on payment of tribute, they failed to prove such tenancy. It is significant to note that a customary tenants is in possession of his holding during good behavior and until it is forfeited for misbehavior. Once it is the case that such a person is a customary tenant and therefore in possession, then like any other person in possession of land, there is a presumption of ownership in his favour. Although the presumption is rebuttable to due proof of a tenancy, the onus is on the adversary to rebut it if he can."
in mind the above judicial authority of no less than
this court, I would like to reiterate
what applies in practice and that is seen in the case
of: Oyovbiare v Onamurhomu (1999) 10 NWLR (Pt. 621) 23
at 34 - 35 (SC) wherein it was held that the general
rule in civil cases is that the burden of proof rests
upon the party who substantially asserts the
affirmative before the evidence is gone into. The
position therefore is that the burden of proof lies on
the person who would fail, assuming no evidence had
been adduced on either side. Also in respect of
particular facts, the burden rests on the party
against whom judgment would be given if no evidence
were produced in respect of those facts. Once that
party produces the evidence that would satisfy the
court then the burden shits on the party against whom
judgment would be given if no more evidence were
Tabai JSC anchoring the policy views of this court in Dada v Bankole (2008) 1 SC (Pt. III) 219 at 258 - 259 seems to have had the situation in this case at hand in mind when he postulated thus:
"It is a settled principle of law that a claim which seeks a declaration that the defendants are customary tenants of the plaintiff and other consequential reliefs emanating therefrom postulates that the defendants are in exclusive possession of the land in disputes. And by the operation of Section 146 of the Evidence Act, Cap E14 of the Laws of the Federation, there is presumption that the defendants in such exclusive possession are the owners of the land in dispute until the contrary is proved to rebut that presumption. The only way to rebut the presumption is by strict proof of the alleged customary tenancy. That is the danger of a plea founded on the allegation of customary tenancy."
Those guiding principles used in this case in hand, it is easy to see that what the appellants have put forward in proof of their assertion of the respondents having been put into possession by them under a customary tenancy has not been established by them and has remained what it is and no more a mere assertion. That means in effect that the cases of Folarin v. Durojaiye (1988) 1 NWLR (Pt. 70) 351 and Cole v. Folami (1956) 1 NSCC 60 which they are clutching at would not avail them. The cases referred to being clear situations of a dispute of title between adverse parties different from the present scenario in which appellants claim to be overlords with the respondents as their customary tenants placed in possession by the appellants.
On the matter of the use of the word "Reclamation" in couching the relief in their counter-claim, the appellants as defendants had asked at paragraph 10 of the Statement of Defence and counter-claim as follows:
the whole portions of land belongs to the defendants and
which the plaintiffs hold of them as customary tenants."
trial judge had entered judgment for the defendants on
this counter-claim which decision was reversed on appeal
by the appellate court holding that the counter-claim
for reclamation is not a claim known to our law.
An appellate court should be slow to disturb a finding of fact made by a trial court which is supported by evidence unless it is satisfied that such finding is unsound. Lengbe v Imale (1959) WNLR 325.
ISSUES 4 & 5:
Whether the Court below was right to have held that Exhibit 'E' was inadmissible on the ground that it was not pleaded and could not comply with Section 34 of the Evidence Act and could not operate as res judicata against the Respondents.
Also whether the Court of Appeal was right to hold that Exhibits G - G1 were inadmissible not having been pleaded.
the Appellants, learned counsel said it is trite law
that pleadings should state material facts only and not
the evidence by which those facts will be proved. That
the facts which are relevant only to establishing the
existence of material facts and which are the facts from
which the existence or non-existence of the material
facts and may be rationally inferred are evidence and
should not be pleaded. He said paragraph 6 of the
Statement of Defence and Counter-claim contains
sufficient pleadings of all documents relating to the
subject matter of litigation between the parties that is
to show that the land in dispute was owned originally by
the Defendants/Appellants and that the
Plaintiffs/Respondents were their customary tenants. He
relied on Oseni v Dawodu (1994) 4 NWLR (Pt.339) 390.
For the Appellants was further stated that Exhibit 'E' was not specifically mentioned in paragraph 6 of the Statement of Defence and Counter-claim does not mean that they were not pleaded since appellants had stated reliance on all related documents. That Section 34 of the Evidence Act has not removed the fact of the admissibility of document. He cited Ipinlaiye II v. Olutokun (1996) 6 NWLR (Pt.453) 148.
of counsel said that Exhibit 'E' is not only the
proceedings in a previous suit but also contains the
judgment of that court. That since the admission of
Exhibit 'E' was not predicated on compliance with
Section 34 of the Evidence Act bit the same was based on
relevancy of the document and the fact that the said
document was admissible as an admission against interest
by the respondents the Court of Appeal was wrong in
holding that Exhibit 'E' was inadmissible.
It was further contended that since pleadings are the basis of the plea of Res Judicata, Exhibit 'E' can operate as res judicata to prove that the Respondents are tenants to the appellants and that they were not given an absolute grant of the land in dispute. That since from the nature of the subject matter for which Abu Bakare was sued - the family land of his family - the only reasonable inference is that he was being sued on behalf of his family, the Court of Appeal was wrong to have held that Exhibit 'E' was inadmissible against the Respondents' family and thus could not operate as res judicata in that the suit to which the said Exhibit 'E' relates was brought against the defendant in his personal capacity.
Going on, learned counsel for the Appellants said the fact that Exhibits G - G1 were not specifically mentioned in paragraph 6 of the Statement of Defence and Counter-claim does not mean that they were not pleaded as it was stated in that paragraph that Appellants would rely on all related documents in their possession on the said land at the trial. That Exhibit G - G1 were relevant to the present suit as they show that the Respondents were in fact tenants of the Appellants and were not given any absolute grant of the land in dispute since those Exhibits reveal that their ancestors have been paying rent to the Appellants' ancestors.
Learned senior counsel also said that Exhibits 'G' and 'G1' are pages of a book purporting to contain a record of alleged payments of rents by the respondents to the Appellants. He said no such record is alleged to exist in the pleadings and so Exhibits 'G' and 'G1' go to no issue and ought not to have been admitted in evidence. He cited Adimora v Ajufo (1988) 3 NWLR (Pt. 80) 1; Atanda v Ajani (1989) 3 NWLR (Pt.11) 511.
In reply on points of law, learned counsel for the Appellants stated that a document which is not admissible under one section of the Evidence Act can be admissible under other sections of the Evidence Act. He referred to Obawole v Williams (1996) 10 NWLR (Pt.477) page 146, Section 20(3) of the Evidence Act; Udeze v Chidebe (1990) 1 NWLR (Pt.125) 1412.
as raised are whether or not Exhibits E, G - G1 not
pleaded are admissible for the purpose of determining
the dispute between the parties. While the Appellants
take the view that because the documents are relevant
and the facts already pleaded could be found as their
basis for the acceptability of those documents. The
Respondents disagree on the ground that the documents
are such as could change the coloration of the case
between the parties that it was essential that they were
specifically pleaded. For clarity, Exhibit 'E' is
certified true copy of the judgment and proceedings of
the Customary Court of Ijanikin Suit No. CT/425/74 in
which suit the Appellants, ancestors sued and obtained
judgment against the Respondents, ancestors for
non-payment of rent in respect of the land presently in
dispute between the parties.
Exhibits G and G1 are pages of the family record/book of the Appellants' family in which they recorded payments of their customary tenants, that is the Respondents.
Learned counsel for the Appellants pointed at paragraph 6 of the Statement of Defence and Counter-Claim as their cover for these documents tendered at the trial court and it is reproduced hereunder, thus:-
shall rely on all related documents in their possession
on the said land at the trial, and all relevant survey
plans including plan RC SEW/730/6."
contended that the position of the Appellants by
asserting that what the Appellants put forward as
pleadings on which they could place the documents,
Exhibits E, G - G1 are not sufficient and not what was
provided for in the Law of Evidence with particular
reference to Section 34 thereof.
this matter, I shall seek recourse to the earlier
position of this court in similar circumstances. See
Atanda v Ajani & Ors (1989) 2 NSCC 511 SC.
Parties are bound by their pleadings, and the issues joined therein. Thus, the court must be on its guard so that it does not deviate from the case made by each party in the pleadings, otherwise it will unwittingly be making for the parties an entirely new case. Olorunfemi v Asho (1999) 1 NWLR (Pt. 585) 1 at 9 & 11 per Belgore JSC; Ojo v Adejobi (1978) SC 65; Aseimo v Amos (1975) 2 SC 57; Adeniji v Adeniji (1972) 4 SC 10.
Again, to be said is that a plea of estoppel per rem judicatam to apply as in this instance certain conditions must apply first.
decision in the previous suit is clear and
self-sufficient, then it is usually taken up in
linier, often as the only issue. In that case, the
success of the party's usually depends entirely on the
success of the plea; or
(b) where, as is often the case when the previous suit being relied upon for the plea is a decision of a nature tribunal in which there was no plea or pleadings the court first hears the whole evidence before it can reach its decision on the rightness, or otherwise of the plea,
In this latter case, one of two situations may arise.
It may be that when all the fact of the
previous and present suit have been ascertained from
the evidence, it becomes clear that all the
ingredients of a successful plea of res judicata
may turn out that, although there was a valid and
subsisting judgment on the same subject matter as at
present in litigation the present defendant cannot
take advantage of it as res judicata either because
the issues are not the same or because the right and
capacity in which the current suit is being fought is
not the same with those in the previous suit even if
the subject-matter is the same.
above placed in context, Exhibit 'E' is a copy of the
proceedings and judgment in a case between Yusufu Salam
& Family v Abu Bakare Yusufu. Clearly the defendant
in that case was a single individual named Abu Bakare
Yusufu and so contradicts the assertion of the
Appellants that the case was brought against the
ancestors of the Respondents and so poses a curious
question as to whether that Exhibit 'E' is relevant in
the case at hand where the dispute is between two
families. Even though not in contention that the said
Abu Bakare Yusufu was the uncle of the 1st Respondent,
Exhibit 'E' shows the suit thereby was brought against
Yusufu in his personal capacity. It goes without saying
that in such a circumstance Exhibit 'E' cannot bind the
respondents as the Hassani Komolafe family since it is
no where shown that Abu Bakare Yusufu was sued in that
earlier case as a representative of that family. Several
authorities of the Supreme Court support that position
and some of them are:-
Ajeigbe v Odedina (1988) 1 NWLR (Pt.587) 598; Ndukwe Okafor & Ors v Agwu Obiwo & anor (1978) 9 & 10 SC 112 at 115; Coker v Sanyaolu (1976) 9 - 10 SC 203 at 224.
trial court nor the parties to an action has any power
to admit without objection, a document that is in no
way and under no circumstances admissible in law. If
such a document is wrongfully received in evidence
before the trial court, an appellate court has an
inherent jurisdiction to exclude it even where no
objection was raised to its going in at the Lower
court. Oseni v Dawodu (1994) 4 NWLR (Pt.339) 390 at
404; Alase v Olori-Olu (1965) NMLR 66 at 77; Olukade v
Alade (1976) 1 All NLR (Pt. 1) 67; Yaya v Mogoga
(1947) 12 WACA 132.
From all the above and the better and fuller reasoning in the lead judgment, I too dismiss this appeal which lacks merit. I abide by the consequential orders already made by my brother, J.A. Fabiyi, JSC.
I had the privilege of reading in draft the lead judgment of my learned brother, FABIYI, JSC just delivered. I agree entirely with the reasoning and conclusion in the said lead judgment which dealt with all issues beautifully. I adopt same as my own and therefore also come to the conclusion that the appeal lacks merit and is liable to dismissal.
I abide by the consequential orders in the lead judgment including that on costs in favour of the respondents but against the appellants.
I have read in draft the lead judgment of my learned brother Fabiyi, JSC. I entirely agree with the reasonings and conclusion therein which for my inability to improve on I adopt as mine in dismissing the appeal. I abide by the consequential orders made in the lead judgment including the order on costs.
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