LAWAL & ORS V KAZEEM ALHAJI S. A. LAWAL & ORS

LAWAL & ORS V KAZEEM ALHAJI S. A. LAWAL & ORS


IN THE COURT OF APPEAL
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS

ON WEDNESDAY, 13TH JUNE, 2018


Suit No: CA/L/428/2012

CITATION:

Before Their Lordships:

MOHAMMED LAWAL GARBA, JCA

JOSEPH SHAGBAOR IKYEGH, JCA

JAMILU YAMMAMA TUKUR, JCA


BETWEEN

ALHAJI S. A. LAWAL (HEAD OF MAYEGUN FAMILY)
MR. JAMILU MAYEGUN
MR. WASIU MAYEGUN
(FOR THEMSELVES AND ON BEHALF OF MAYEGUN FAMILY)
(APPELLANT)

AND

HAKEEM KAZEEM
QUADRI OLASIPO
SADIQ BOLAJI
(RESPONDENTS)


PRONOUNCEMENT


A. ACTION
1. Representative Action – Essential condition for sustaining a representative action

I should say at the outset that the arguments of the Appellants’ Counsel on the issue are apparently not based on any known and established legal practice and procedure provided for by the Rules of the High Court. Reference to Order 13, Rule 7 of the High Court Rules arose from a misunderstanding or even an outright misconception of the provision therein.
The provisions are that: –

“A Claimant may at his option join as parties to the same actions all or any of the persons severally, or jointly and severally, liable on any one contract, including parties to bills of exchange and promissory notes.”

Without any difficulty howsoever, a discerning look at these provisions shows clearly that they provide and deal with the discretion of a claimant to either sue severally or joint and severally, persons who are liable on any one contract including parties to bills of exchange or promissory notes.
The provisions provide for discretion to a claimant to opt for any of the, alternatives provided therein in initiating his action in contract, etc, as defendants to the action and not as co-claimants. The provisions of Order 13 Rule 7 are completely irrelevant to the case of the Respondents.
The relevant provisions of Order 13 of the High Court Rules under the issue are in Rule 12(1) cited and set out earlier under Issue 1 and effectively and fully answers the arguments of the learned counsel for the Appellants.

Once more, the provisions say that: –

“Where there are numerous persons having the same interest in one suit, one or more of such persons may sue or be sued on behalf or for the benefit of all persons so interested.”

In his argument, the learned counsel did not say that the interests of the Respondents in the action are not the same, but admitted that they are similar, though not joint. However, from the claims made by the Respondents in their pleadings and reliefs sought, it cannot be seriously argued that their interests in the suit are not the same. By the avernment in paragraph 5 of the Amended Statement of Claim and evidence of 1st Respondents and the other witnesses who testified in support of the claims, the Respondents purchased the land subject matter of the action at the same time from the same vendor and they all claim title to the said land on the basis of the said transactions, damages for trespass and injunction. The interests of the Respondents are not only similar, but common and the same in the suit for them to jointly initiate the suit against the Appellants who interfered with such interests in the land: the subject matter of the suit, in order to avoid the undesirable phenomenon of multiplicity of actions which the provisions of Order 13, Rule 12(1) aim to prevent.

It is absurd to suggest, as the learned counsel for the Appellants has done, that each of the Respondents should have filed a separate suit based on the same facts and issues and claim the same reliefs, only for them to subsequently apply that the suits be consolidated. The primary object and purpose of the provisions of the Rules of the High Court in Order 13, Rule 12(1) would be frustrated and defeated by such an action. In fact, the case of Adediran v. Interland Transport Limited (supra) cited by the counsel support the filing of a single action by persons who have common interests, common grievance and claim the same relief that is beneficial to all of them, such as the Respondents in the action against the Appellants.
Although the Respondents’ suit was not filed in strictly representative capacity by the 1st Respondents, claiming the requisite authority and capacity to represent the other espondents, but was filed in his own capacity with the necessary legal standing in his own right and also for and on behalf of his children; the 2nd – 4th Respondents. It was a case filed by a competent party/claimant who because of the common interests, grievance and reliefs, also claims for and behalf of the 2nd – 4th Respondents; his co-claimants and it is supported by the Rules of the High Court and the judicial authorities on representative actions. See Commissioner for Finance v. Ukpong (2000) 4 NWLR (653) 363, Ejezie v. Anuwu (2008) 12 NWLR (1101) 446, Daniyan v. Iyagin (2002) 7 NWLR (766) 346. Per GARBA, JCA. read in context

B. EVIDENCE
2. Standard of Proof – Standard of proof in civil cases

The law is known that in civil matters, the standard of proof of any fact in issue is on the balance of probabilities or preponderance of credible and sufficient evidence. See Section 134 of the Evidence Act, 2011 (Section 136 of the 2004 Act), Amadi v. Orisakwe (2005) 7 NWLR (924) 385: Egwa v. Egwa (2007) 1 NWLR (1014) 71; SPDC Limited v. Olarewaju (2008) 18 NWLR (1118); Kaydee Ventures Limited v. Minister Federal Capital Territory (2010) 7 NWLR (1192) 171. Per GARBA, JCA. read in context

3. Unchallenged Evidence – The reaction of the Court to unchallenged evidence
Position of the law on unchallenged/uncontroverted evidence

It is also the law that a Court of law is entitled to and may have a duty to accept and act on unchallenged credible evidence given in proof of fact in issue and in such situations, minimum evidence which preponderates in support of the fact, would be required to prove such fact. Omoregbe v. Lawani (1980) 3-4 SC, 108, NEPA v. Alli (1992) 8 NWLR (247) 266, Egbunike v. ACB (1995) 2 SCNJ. 58. Per GARBA, JCA. read in context

4. Ascription of Probative Value – The factors that determine how a Court ascribes probative value to evidence
Factors that trial court considers before ascribing probative value to the evidence or document tendered

I should state that the credibility of a piece of evidence for the purpose of ascription of probative value or weight in a case is determined by factors which include:-
(a) Credibility of source

(b) Admissibility

(c) Relevance

(d) Probability

(e) Conclusiveness.

See Mogaji v. Odofin (1978) 4 SC, 91; Onwuka v. Ediala (1989) 1 NWLR (1996) 182; Osigwe v. Unipetrol (2005) ALL FWLR (267) 1525, Nwokidu v. Okanu (2010) 3 NWLR (1181) 368. Per GARBA, JCA. read in context

5. Res Judicata – The provision of the law on the doctrine of res judicata
Doctrine of res judicata

In the case of Ojemen v. Momodu (1983) 3 SC, 172, (1983) ALLFWLR, 132. Obaseki, JSC had said that: –

“The doctrine of res judicata is so well settled as to require any restatement. It has its true foundation in the legal maxim” nemo debat bis vexari pro una et eadem causa” (no man ought to be twice vexed or harassed i.e. tried for one and same cause). If an action be brought and the merits of the question be discussed between the parties and a final judgment obtained by either the parties are precluded and cannot canvass the same question again in another action although perhaps some objection or argument might have been urged upon the first trial which would have led to a different judgment. In such a case, the matter in dispute having passed in rem judicatem, the former judgment while it stands, is conclusive between the parties if either attempts by commencing another action to reopen that matter. It is the fundamental doctrine of all courts that there must be an end to litigation (“interest republicae ut sit finis lituim) See Co-Rep. 9 (a).”

In the later case of Alao v. Akano (1988) 1 NWLR (1971) 431, Craig, JSC said that: –

“…the doctrine of res judicata is very well known as a rule of evidence whereby a party is precluded from disputing in any subsequent proceedings, matters which had been adjudicated upon previously by a competent Court between him and his opponent. The principle behind this rule, is that where a competent Court has determined an issue, and entered judgment thereon, neither party relitigate that issue by formulating a fresh action on what has already been decided.”

On when or in which circumstances the principle or doctrine of res judicata would apply, Karibi-Whyte, JSC, in the case of Cardoso v. Daniel (1986) 2 SC, 491, (1986) ALL FWLR, 317, (86) 2 NWLR (20) 1, said:

“It is now elementary but necessary to state that the principle of res judicata applies only where there is a lis inter partes, to preclude party form raising again facts directly in issue which were the basis for the judgment in an earlier final proceeding by a competent Court between the same parties or their privies. See Toriola v. Williams (1982) 7 SC 27: Esi v. Chief Secretary (1973) 11 SC. 189. Fadiora v. Gbadebo (1978) 3 SC, 219: Timitimi v. Amabebe (1954) 14 W.A.C.A.”

See also Ozingwe v. Gbishe (1985) 2 NWLR (20) 1, Bamishebi v. Faleye (1987) 2 NWLR (1954) 57, Adebayo v. Babalola (1995) 7 NWLR (408) 383.
In line with the above pronouncements, the apex Court; per Chukwuma-Eneh, JSC, in the case of Ikotun v. Oyekanmi (2008) 34 NSCQR (Pt.1) 470, (2008) 19 NWLR (1094) 100, set out the requirements to be met for a successful plea of res judicata, when he stated that: –

“For a successful plea of res judicata, the law requires, it must be emphasized, that the identities of the parties (or privies), the res, that is, the subject matter of the litigation and claim as well as the issues and the parties in both the present and previous actions have to be the same otherwise the plea is not tenable.”

See also Abubakar v. Bebeji Oil & Allied Product Limited (2007) 2 SC, 48; Ezenwa V Kareem (1990) 3 NWLR (138) 258, Voye v. Olubode (1974) 10 SC. 14 SC. Also relevant for the purpose of this appeal, is the classification of privies in relation to the doctrine of res judicata set out by Idigbe, JSC in the case of Coker v. Sanyaolu (1976) 9-10 SC (Reprint) 126. The learned Law Lord had said that: –

“Privies are of three classes and they are: –

(1) Privies in blood (as ancestor and heir);

(2) Privies in law (as testator and executor; intestate and administration);

(3) Privies in estate (as vendor and purchaser, lessor and lessee.”

Finally, on who bears the burden of proof on application of the principle of res judicata in a case, Ogundare, JSC in the case of Ladimeji v. Salami (1998) 4 SC. I declared the law that: –

“The burden is on the party setting up the plea of res judicata to establish to the satisfaction of the Court that his opponent is seeking to put in controversy and relitigate some question of law, or issue of fact which is the very same question or issue which has already been the subject of a final decision between the parties.”

See also Ojiako v. Ewuru (1995) 1 NWLR (420) 400, Alao v. Akano (supra)

As can be discerned from the expositions by the apex Court on the principle or doctrine of res judicata, like issue estoppel, it is a rule of evidence which was provided for initially, in Section 53 of the Evidence Act, Cap 62, in 1 Vol. 2, Laws of the Federation of Nigeria, 958 and which has since then been retained and repeated in all the subsequent Evidence Acts, including the 2 11 Evidence Act. It is now Section 173 and says that: –

“Every judgment is conclusive proof, as against parties and privies of facts directly in issue in the case, actually decided by the Court, and appearing from the judgment itself to be (the ground on which it was based, unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action an which that judgment is intended to be proved.” Per GARBA, JCA. read in context

6. Res Judicata – When the doctrine of res judicata will fail
Instances where the plea of res judicata will collapse

It may be recalled that one of requirements or conditions to be satisfied or met for the successful plea and application of the principle of res judicata, is that the subject matter of the earlier and the subsequent suits must be shown and proved to be the same.

Where any of the identified and recognized requirements/conditions was not satisfactory established or met, the plea of the doctrine or principle would fail. Alao v. Akano (supra). Ezeanya v. Okeke (1995) 4 NWLR (388) 142 @ 161; Balogun v. Akanji (1985) 1 NWLR (70) 301; Ojiako v. Ewuru (supra), Chinwendu v. Mbamali (1980) 3 – 4 SC, 31; Faleye v. Otapo (1995) 2 SCNJ, 195 @ 220-1; Bebeji Oil & Allied Products Limited (2007) 2 SC, 48, (2007) 18 NWLR (1066) 319, Eyesimba v. Onuzuruike (2002) 9 -10 SC, 1, (02) 15 NWLR (791) 466. Per GARBA, JCA. read in context

C. LAND LAW
7. Declaration of Title to Land – The ways a party can claim for declaration of title to land
Duty of a claimant/plaintiff in an action for declaration of title to land

The law is very firmly settled that a party claiming for declaration of title to or ownership of a piece of land in Nigeria, is required to plead and prove his entitlement to such declaration by or in any of the recognized and established ways or modes set out and restated in legion of judicial authorities, one of the earliest of which is Idundun v. Okumagba (supra). The five (5) ways by which a party is required to prove by any one, are: –

(a) By traditional history evidence, see Ezeakabekwe v. Emenike (1998) 62 LRCN, 4855; Ezinwa v. Agun (2004) 3 NWLR (861) 431 @ 456; Mogaji v. Cadbury (1985) 2 NWLR (7) 393 @ 431, Onyido v. Ajemba (1991) 4 NWLR (184) 203.

(b) By documents of title; statutory or customary, see Nnabuife v. Nwigwe (2001) 9 NWLR (719) 710 @ 723-4; Oshola v. Finnih (1991) 3 NWLR (178) 192; Folarin v. Durojaiye (1985) 2 SCNJ, 212, Okonkwo v. Okolo (1988) 5 SCNJ 128.

(c) By various acts of ownership, numerous and positive and extending over a length of time as to warrant the inference of ownership, see Ajeigbe v. Odedina (1988) 3 SCNJ, 52, Adegbite v. Ogunfaolu (1990) 2 NSCC (Pt. 3) 65, Ikpuku v. Ikpuku (1991) 5 NWLR (193) 571.

(d) By acts of long possession and enjoyment of the land, see Section 146 of previous Evidence Acts; 1958, 1990 and 2004, Section 143 of the 2011 Evidence Act, Agbara v. Amara (1995) 7 NWLR (410) 712, Ikpuku v. Ikpuku (supra).

(e) By proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition, be the owner of the disputed land. See Section 35 of 2011 Evidence Act (Section 46 of 2004 Act) Okafor v. Idigo (1984) 1 SCNLR, 481, Oduwaje v. Ogbeide (1991) 3 NWLR (178) 147, Adeagbo v. Williams (1998) 2 NWLR (536).

In the case of the Respondents, their pleadings in paragraph 5 of the Amended Statement of Claim are to the effect that the land in dispute was out rightly alienated to them by virtue of a sale/purchase receipts from Oba Yekini Adeniji, the Elegushi of Ikate land. Their pleaded mode of acquiring ownership/title to the land is therefore documentary; sale/purchase receipt. In paragraph 7 of the Amended Statement of Claim, which remains uncontroverted by the Appellant and so deemed admitted and requires no further proof; see J.E. Elukpo & Sons Limited v. F.H.A. (1991) 3 NWLR (179) 322. Bayam v. Agana (2010) 9 NWLR (1199) 215, the Respondents took possession after the sale/purchase. Although the sale/purchase was apparently under native law and custom and the law requires that the names of persons who witnessed the handing and taking over of physical possession of the land be pleaded and proved by a claimant; see Egonu v. Egonu (1978) 11-12 SC, 111, relying on Cole v. Folarin (1956) 6 SCNLR, 180, Igbokwe v. Nlemchi (1996) 2 NWLR (429) 185 @ 200, Yashe v. Umar (2003) 13 NWLR (383) 465, the unchallenged pleading in paragraph 7 of the Amended Statement of laim, suffices for the Respondents in their case. Since the sale/purchase by them and the receipts issued there for and put in evidence at the trial, were not challenged at all by the Appellants. The resolution of Issue 3 on res judicata against the Appellants reinforces the position. Since the Appellants did not succeed in challenging the title of the Respondents’ vendors; the Elegushi Family over the land in dispute which has been established to be situate at Ologolo village and not Maiyegun village, the sale/purchase receipts constitute sufficient credible evidence to prove the root of title to the land they claimed, by documentary evidence which is one of the ways recognized for proof of such title. Once again, a party is only required by the law to prove title in any one of the ways recognized by the law and proof by any one such ways would suffice to warrant the declaration sought. See Piaro v. Tenalo (1976) 12 SC, 31, Onwugbufor v. Okoye (1996) Monthly Appeal cases; M.A.C, 1 @ 12, Nkado v. Obiano (1997) 5 NWLR (503) 31, Agun v. Nnadi (supra) Dabo v. Abdullahi (2005) 2 SC (Pt.1) 75 @ 91, Oyadare v. Keji (2005) ALL FWLR (247) 1583) @ 1596.
In the circumstances, failure by the Respondents to tender the C of O of the Elegushi Family over the Ologolo Village land where the land in dispute is situate, was/is not fatal to their case since the land, by the uncontroverted evidence before the High Court including that of Appellants’ DW1, in Ologolo Village which that Family had right of ownership. The Respondents pleaded and relied on the sale/purchase receipts of the land they claimed and they put them in evidence to prove the title/ownership they claimed and in the circumstances set out above, the C of O of their vendors becomes non sequitor on the issue of proof of their title to the land in dispute. The case of Jiaza v. Bamgbose (Supra) cited by the counsel for the Appellants for the law that a party who pleads and relies on a document of title must tender it in evidence does not avail the Appellants in respect of the Respondents’ case. In the first instance, the facts of the case are different in that the Appellant in the case had pleaded and claimed to have acquired interest in the land in dispute by way of a Power of Attorney, which he however failed to put in evidence at the trial to prove the claims made.

The case was dismissed at both trial and the appeals to this Court and the apex Court. In the second instance, like I have stated above, the Respondents pleaded and relied on the sale/purchase receipts from vendors whose title/ownership of the land in dispute was not controverted, but rather confirmed by the evidence including that of the Appellants’ witness, under cross examination. The Respondents did not rely on and the High Court did not act on any weakness of the Appellants’ case or absence of defence to find for the Respondents, but both relied and acted on the uncontroverted, credible and sufficient evidence in proof of the claims on the balance of probabilities, as required by the law, for the decision in favour of the Respondents.

Learned counsel for the Appellants has argued that the 2nd – 4th Respondents as infants, did not have the capacity to enter into the contract of sale of the land in dispute. All that needs be said has rightly been stated by his learned friend for the Respondents which is that at is an elementary principle of the law of contract that non parties and total strangers thereto, lack the legal standing and capacity to challenge the validity or sue on a contract they or their privies did not participate in since they acquire no right to do so in the contract. Chemical & Allied Products, Plc v. Vital Investment Limited (2006) ALL FWLR (342) 1502, Chacharos v. Ekimpex Limited (1988) 1 SCNJ 93.
In the case before the High Court, the Respondents showed they were in possession of the land in dispute before the Appellants trespassed thereon on the pretext that it was part of the Maiyegun Village land excised to them by the Lagos State Government and in respect of which their title/ownership was allegedly affirmed by the judgment in Suit No; SC/50/2001, which claim was debunked by the judgment, as demonstrated earlier under Issue 3.
Overall, the Respondents proved their root of title to the land in dispute as required by the law and the High Court was right to have so found. Per GARBA, JCA. read in context

D. PRACTICE AND PROCEDURE                                                                             8. Amendment of Court Processes – The position of the law on the effect of amendment of pleadings
Effect of amendment of pleadings or processes

The law is now firmly settled that once a Court process is amended, the amendment relates back to the date of the document amended and what stood before the amendment would no longer define the issues to be tried by a Court and so no longer material in the determination of a case. It is the issue/s raised in the amendment or amended process that would be relevant, for decision in the case. Adewumi v. A.G. Ekiti State (2002) 1 SCNJ, 27. (2002) 2 NWLR (751) 474; Tanarewa Nigeria Limited v. Arzai (2005) NWLR (919) 593: Ijade v. Ogunyemi (1996) 9 NWLR (470) 17; Bello v. INEC (2010) 8 NWLR (1196) 342: Mobil Oil Nigeria Plc. v. IAL 36 Inc. (2000) 6 NWLR (659) 146. This position of the law notwithstanding, in the case of Uzodinma v. Izunaso (2011) 17 NWLR (1275) 30. (2011) 5 SCNJ (Pt. 1) 27 @ 93-4, the apex Court had stated that the amendment of a Court process does not render the amended process no-existent in a case and a Court cannot ignore it. See also Agbaisi v. Ebikorefe (1997) 4 NWLR (502) 630; Agbahomovo v Eduyegbe (1999) 3 NWLR (594) 170 @ 181-3, (1999) 2 SCNJ, 94 @ 102; Oguma v. IBWA (1988) 1 NWLR (1973) 658. Per GARBA, JCA. read in context

9. Rules of Court – The primary aim of Rules of Court                 Essence/purpose of Rules of Court

It should be remembered that the primary purport and aim of the Rules of all Courts is to assist the courts in the attainment of substantial justice expeditiously and in an orderly manner. Rules of Courts are aids or maids provided for the Courts to facilitate the discharge of their primary functions and duty to decide disputes between the parties that come before them, on the merit by effectively and conclusively determining their respective rights and obligations. The principal duty and obligation of the Courts is to decide the dispute between parties and their rights therein and not punish them for mistake made by counsel either in commencement or in the conduct of their cases for non compliance with rules of procedure which does not occasion any prejudice to any of the parties.

As a general position, Rules of Courts are meant to be complied with and both the parties and the Courts have a duty to ensure that they are obeyed for the smooth, orderly and quick determination of cases, but to apply the Rules in the absolute as if they were sacrosanct would be slavish and may be counterproductive as they would constitute an impediment and clog in the already snail slow wheel of justice. Nneji v. Chukwu (1988) 6 S NJ, 132: Afribank Limited v. Owoseni (1995) 2 NWLR (375) 110; Ojiako v. A.G., Anambra State (2000) 1 NWLR (641) 375, Alsthom v. Saraki (2000) FWLR (28) 22 – 67, Opara V. D. Schlumberger (Nig) Ltd (1995) 4 NWLR (390) 440. Per GARBA, JCA. read in context


LEAD JUDGMENT DELIVERED BY GARBA, JCA


This appeal is against the judgment by the High Court of Lagos State delivered in the Respondents’s Suit No. LD/1859/03 on 19th of January, 2012 by which their claims for declaration of title, injunction and damages against the Appellants were granted. Aggrieved by the judgment, in which their counter claim against the Respondents were dismissed, the Appellants brought the appeal by the Notice of Appeal dated the 15th March, 2012, containing ten (10) grounds which was amended by the Amended Notice of Appeal filed on 18th of November, 2013 from which five (5) issues were distilled for decision by the Court in the Appellants’ brief filed on the 27th July, 2012. The issues, adopted in the Respondents’ brief filed on 16th April, 2013, are thus: –

“i. Whether the trial Court had jurisdiction to entertain the claims of the 2nd, 3rd and 4th Claimants when they sued by a Guardian whereas they were not infants: Grounds 1-3.

ii. Whether this action was competent in view of the fact that each of the Respondents obtained a separate interest at a different time in a distinct portion of the land in dispute. Ground 4

iii. Whether the issues raised in this case had not been decided earlier between the parties. Ground 6

iv. Whether the Respondents proved their root of title as foundation for the reliefs sought by them. Ground 5, 7 and 9 v. Whether the Respondents claimed any recognized right of occupancy in respect of which the trial Court could make a declaration: Ground 8.”

The appeal would be determined on these issues.

Issue 1: Appellants’ Arguments:

It is submitted that the 2nd – 4th Respondents were not properly before the High Court since they were adults who were presented as minors who sued through the 1st Respondents as their Guardian and so the case was not instituted by the process of the law. Citing the initial pleadings, the Amended Statement of Claim and evidence of 1st Respondents under cross-examination and CW4, as well as Madukolu v. Nkemdilim (1962) 2 SCNLR, 34 and WAEC v. Adeyanju (2008) 9 NWLR (1092) 270 @

294, learned counsel for the Appellants argues that the Respondents did not prove the capacity in which the action was instituted and the High Court was wrong to have assumed jurisdiction over the claims of the 2nd – 4th Respondents. The case of HKSF v. Ajibawo (2008) 7 NWLR (1087) 511 @ 530 was referred to for the argument and it is said that since the reliefs were claimed by all the Respondents jointly, the vice against the 2-4th Respondents would affect the grant of the reliefs in the case. In addition, it is contended that the Guardian to the 2nd – 4th Respondents did not file any written consent from them contrary to the provisions of Order 13, Rules 10 and 16(4) of the High Court Rules, 2004 and that the failure is not a mere irregularity as the requirement was mandatory, citing Agip Nigeria Limited v. Agip Petroleum International (2010) 5 NWLR (1187) 348 @ 419. It is maintained that the presence of the 2nd – 4th Respondents’ before the High Court was not competent and that it lacked the jurisdiction to entertain their claims. The Court is urged to resolve the issue in favour of the Appellant.

Respondents’ Submission: –

The submissions are to the effect that the relationship between the 1st Respondents and the 2nd – 4th Respondents was made clear in paragraph 2 of the Amended Statement of Claim on which the case was decided. 1st Respondents’s additional statement on Oath and Counter Affidavits to the motion dated 1st June, 2011 filed by the Appellants were referred to and it is contended that it was obvious that the 2nd – 4th Respondents are the biological children of the 1st Respondents who were minors at the time the case was filed and so it was proper for him to have sued for himself and as Guardian for the 2nd – 4th Respondents. Learned Counsel argues further that there was no material contradiction in the evidence of the Respondents on the issue and since it was based on the amended pleadings, the initial pleadings became, irrelevant after the amendment on the authority of Owena Bank Nigeria Limited v. N.S.C.C. Limited (1993) 4 NWLR (290) 698. Counsel said the High Court was right to hold that the 2nd – 4th Respondents are the children of the 1st Respondents since the Appellants did not adduce evidence to the contrary and that it is only material contradiction in the evidence of a witness that would result in its rejection by the Court as was stated in the case of Effia v. State (1999) 8 NWLR (613) 9 – 11.

On the requirement of filing written consent of the 2nd – 4th Respondents for the 1st Respondents to act as their Guardian, it is submitted that the 2004 Rules of the High Court came into force after the case was filed. In the alternative, it is contended that the provisions of the Rules only apply to a person representing the minors who is not a party to the case he represents them, relying on Tewogbade v. Agbabiaka (2001) 5 NWLR (705) 46. Learned counsel says that even if the writ of summons in the case was not properly endorsed by the 1st Respondents, the omission was a mere irregularity which would not stop or prevent the High Court from doing substantial justice between the parties as it possesses the power to, suo motu, amend the capacities in which the Respondents’ case was brought.

The cases of Akinnubi v. Akinnubi (1997) 2 NWLR (486) 157 and RE: Adeosun (2001) 8 NWLR (714) (no page provided) were referred to for the submission and it is further submitted that there was evidence that the 1st Respondents purchased the land in dispute for himself and on behalf of his children and so failure to obtain their written consent or authority to sue as their Guardian should not be allowed to defeat the course of justice.

The Court is urged to resolve the issue in favour of the Respondents.

Now, the initial writ of summons and statement of claim both dated the 1st September, 2003 as the originating processes used by the Respondents to commence the action against the Appellants in the High Court, which appear at page 1-5 of the Record of Appeal, contained the names of the Appellants as the plaintiffs suing in their own names and capacities as parties to the action, without any indication as to any of them being a representative or guardian, of the other.

In paragraph 2 of the statement of claim, it was averred that: –

“The 2nd, 3rd and 4th Plaintiffs are also Nigerian citizens, siblings of the 1st Plaintiff and through whom they acquired their interests in the land, the subject matter of this suit which is being encroached upon by the Defendants.”

Subsequently, the writ of summons and statement of claim were amended by the Amended Writ of Summons and Amended Statement of Claim both dated the 7th April, 2008; at pages 48-53 of the Record of Appeal, on which the 2nd – 4th Respondents/Claimants/Plaintiffs, were indicated to have sued by their Guardian, the 1st Respondents/Claimant/Plaintiff. In paragraph 2 of the Amended Statement of Claimant, it was deposed that: – “2. The 2nd, 3rd and 4th Plaintiffs are also Nigerian citizens, children of the 1st Plaintiff and through the 1st Plaintiff, they acquired their interests in the land, the subject matter of this suit which is being encroached upon by the Defendants.”

The law is now firmly settled that once a Court process is amended, the amendment relates back to the date of the document amended and what stood before the amendment would no longer define the issues to be tried by a Court and so no longer material in the determination of a case. It is the issue/s raised in the amendment or amended process that would be relevant, for decision in the case. Adewumi v. A.G. Ekiti State (2002) 1 SCNJ, 27. (2002) 2 NWLR (751) 474; Tanarewa Nigeria Limited v. Arzai (2005) NWLR (919) 593: Ijade v. Ogunyemi (1996) 9 NWLR (470) 17; Bello v. INEC (2010) 8 NWLR (1196) 342: Mobil Oil Nigeria Plc. v. IAL 36 Inc. (2000) 6 NWLR (659) 146.

This position of the law notwithstanding, in the case of Uzodinma v. Izunaso (2011) 17 NWLR (1275) 30. (2011) 5 SCNJ (Pt. 1) 27 @ 93-4, the apex Court had stated that the amendment of a Court process does not render the amended process no-existent in a case and a Court cannot ignore it. See also Agbaisi v. Ebikorefe (1997) 4 NWLR (502) 630; Agbahomovo v Eduyegbe (1999) 3 NWLR (594) 170 @ 181-3, (1999) 2 SCNJ, 94 @ 102; Oguma v. IBWA (1988) 1 NWLR (1973) 658.

The law as it may be, the case was determined on the amended pleadings of the parties by which they joined issues on whether or not the 2-4th Respondents are the children of the 1st Respondents. In reaction to the Respondents avernment in paragraph 2 of the Amended Statement of Claim, the Appellants, in their paragraph 2 of the Amended Statement of Defence and Counter Claim dated 19th May, 2010, stated that: –

“2. The Defendants deny paragraph 2 of the Amended Statement of Claim and state that the 2nd, 3rd and 4th Claimants cannot prove that they are children of the 1st Claimant and they are put to the strictest proof thereof.”

At the trial, the 1st Respondents proffered oral and documentary evidence in form of counter affidavits to the Appellant’s motion of 1st June, 2011 in support and proof of the pleading that the 2nd – 4th Respondents are the biological children of the 1st Respondents. On their part, the Appellants’ sole witness; Alhaji Adio Maiyegun’s written depositions which was adopted as his oral evidence, did not give any evidence to controvert the evidence given by the Respondents and show that the 2nd – 4th Respondents are not in fact, the biological children of the 1st Respondents. The only relevant avernment in his deposition on the issue is at paragraph 3 where he stated that: –

“Contrary to paragraph 2 of the Amended Statement of Claim that the 2nd, 3rd and 4th claimants cannot prove that they are children of the 1st claimant and they are put to the strictest proof thereof.”

The law is known that in civil matters, the standard of proof of any fact in issue is on the balance of probabilities or preponderance of credible and sufficient evidence. See Section 134 of the Evidence Act, 2011 (Section 136 of the 2004 Act), Amadi v. Orisakwe (2005) 7 NWLR (924) 385: Egwa v. Egwa (2007) 1 NWLR (1014) 71; SPDC Limited v. Olarewaju (2008) 18 NWLR (1118); Kaydee Ventures Limited v. Minister Federal Capital Territory (2010) 7 NWLR (1192) 171.

It is also the law that a Court of law is entitled to and may have a duty to accept and act on unchallenged credible evidence given in proof of fact in issue and in such situations, minimum evidence which preponderates in support of the fact, would be required to prove such fact.

Omoregbe v. Lawani (1980) 3-4 SC, 108, NEPA v. Alli (1992) 8 NWLR (247) 266, Egbunike v. ACB (1995) 2 SCNJ. 58.

The learned counsel for the Appellant has argued that because the 1st Respondents had earlier said that the 2 – 4th Respondents were his siblings and even gave their supposed dates of birth, his subsequent evidence that he is their biological father, is not credible.

I should state that the credibility of a piece of evidence for the purpose of ascription of probative value or weight in a case is determined by factors which include:-

(a) Credibility of source

(b) Admissibility

(c) Relevance

(d) Probability

(e) Conclusiveness.

See Mogaji v. Odofin (1978) 4 SC, 91; Onwuka v. Ediala (1989) 1 NWLR (1996) 182; Osigwe v. Unipetrol (2005) ALL FWLR (267) 1525, Nwokidu v. Okanu (2010) 3 NWLR (1181) 368.

In the 1st Respondents’s case, the fact that there were discrepancies in his evidence of the relationship between him and the 2nd – 4th Respondents did not affect the credibility of his cogent and unchallenged evidence that the 2nd – 4th Respondents are in deed, his biological children, who he could represented or act on behalf of in instituting the suit. The Appellants are not challenging the individual legal capacity of the 2nd – 4th Respondents to institute the action on their own behalf, but their relationship with the 1st Respondents simply on the ground that he is indicated to be their guardian in the Amended Writ and Statement of Claim which amended the initial originating processes on which the 2nd – 4th Respondents were indicated to have sued for themselves. The Appellants are also not challenging the legal interests of the 2nd – 4th Respondents in the cause of action vesting them the legal standing to undertake the action against them.

The bottom-line on the capacity of the 2nd – 4th Respondents to initiate the action is not their relationship with the 1st Respondents who is shown to sue for himself, as a party, and also on behalf of his biological children; the 2nd – 4th Respondents, but on their unchallenged legal standing or locus standi to sue to protect their legal interests in the case. The High Court was therefore right when it stated and held in its judgment, at page 203 of the Record of Appeal, that: –

“In the instant case, the Claimant has stated that he is the father of 2nd – 4th Claimants and is suing as their guardian and nor himself in my view failure to file a written consent should be treated as an irregularity in the case. Furthermore in the case of Ndukauba v. Kolomo (2005) 4 NWLR (Pt. 915) 411 SC it was held that parties need not appear in Court if they are properly represented nor do they need to personally give evidence at trial so long as the available evidence is sufficient to prove or sustain their case.”

With the uncontroverted evidence that the 2nd – 4th Respondents are the biological children of the 1st Respondents who purchased the land in dispute, the failure or omission to file a written consent from them to sue as Guardian as required by the Rules of the High Court was a mere irregularity which was curable and cured by the provisions of Order 5(1) of the High Court Rules 2004 which provides that: –

“Where in beginning or purporting to begin any proceeding there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, the failure shall not nullify the proceedings.”

In addition, Order 13, Rule 12(1) provides that: –

“Where there are numerous persons having same interest in one suit, one or more of such persons may sue or be sued on behalf of or for the benefit of all persons so interested.”

Pursuant to these provisions, since all the Respondents have the same interest in the action or suit Initiated against the Appellants, then the 1st Respondents may sue on behalf of and for the benefit of the 2nd – 4th Respondents, either as a representative or guardian.

It should be remembered that the primary purport and aim of the Rules of all Courts is to assist the courts in the attainment of substantial justice expeditiously and in an orderly manner. Rules of Courts are aids or maids provided for the Courts to facilitate the discharge of their primary functions and duty to decide disputes between the parties that come before them, on the merit by effectively and conclusively determining their respective rights and obligations. The principal duty and obligation of the Courts is to decide the dispute between parties and their rights therein and not punish them for mistake made by counsel either in commencement or in the conduct of their cases for non compliance with rules of procedure which does not occasion any prejudice to any of the parties.

As a general position, Rules of Courts are meant to be complied with and both the parties and the Courts have a duty to ensure that they are obeyed for the smooth, orderly and quick determination of cases, but to apply the Rules in the absolute as if they were sacrosanct would be slavish and may be counterproductive as they would constitute an impediment and clog in the already snail slow wheel of justice. Nneji v. Chukwu (1988) 6 SCNJ, 132: Afribank Limited v. Owoseni (1995) 2 NWLR (375) 110; Ojiako v. A.G., Anambra State (2000) 1 NWLR (641) 375, Alsthom v. Saraki (2000) FWLR (28) 22 – 67, Opara V. D. Schlumberger (Nig) Ltd (1995) 4 NWLR (390) 440.

In the above premises, the 2nd – 4th Respondents were properly before the High Court in the suit against the Appellants and that Court had the jurisdiction to entertain the case as it relates to them. I find no merit in the arguments of the Appellants on the issue and it is resolved against them.

Issue 2: Appellants’ Submission: –

The arguments are that even though the interests of the Respondents are similar, they should not have filed a joint action since the interests are not joint. According to counsel, each of the Respondents claims his own relief in respect of a separate and distinct subject matter and the fact that all the plots of land are located in the same area, makes no difference. Order 13, Rule 7 of the High Court Rules and the case of Adediran v. Interland Transport Limited (1991) 9 NWLR (214) 155 @ 182-3 on requirements for a representative action were cited and it is contended that the Respondents have no common interest in the case to enable them file a joint action, but that they should have filed separate actions and apply for them to be consolidated on the ground that the issues to be determined in all of them, are the same.

The Court is urged to resolve the issue in Appellants’ favour.

Respondents’ Submissions:-

Citing the case of Hyson Nigeria Limited v. Ijeoma (2008) 11 NWLR (1097) 9, it is submitted that the Respondents’ case satisfies the conditions set out therein for joinder of parties in a case. Learned Counsel said that from the claims made in the case, a common question of law would arise in all the cases even if separately filed by each of the Respondents and the fact that it was the 1st Respondents who purchased all the plots of land in dispute for himself and the 2nd – 4th Respondents shows that the interest of all the Respondents in the case is the same. According to him, to file separate actions would constitute multiplicity of actions which the Court is urged to discourage. It is counsel’s submission that the joinder of all the Respondents is not a misjoinder and that even if the Appellants are right, the proper order should be one for non suit and not dismissal.

The Court is urged to resolve the issue in favour of the Responders.

I should say at the outset that the arguments of the Appellants’ Counsel on the issue are apparently not based on any known and established legal practice and procedure provided for by the Rules of the High Court. Reference to Order 13, Rule 7 of the High Court Rules arose from a misunderstanding or even an outright misconception of the provision therein.

The provisions are that: –

“A Claimant may at his option join as parties to the same actions all or any of the persons severally, or jointly and severally, liable on any one contract, including parties to bills of exchange and promissory notes.”

Without any difficulty howsoever, a discerning look at these provisions shows clearly that they provide and deal with the discretion of a claimant to either sue severally or joint and severally, persons who are liable on any one contract including parties to bills of exchange or promissory notes.

The provisions provide for discretion to a claimant to opt for any of the, alternatives provided therein in initiating his action in contract, etc, as defendants to the action and not as co-claimants. The provisions of Order 13 Rule 7 are completely irrelevant to the case of the Respondents.

The relevant provisions of Order 13 of the High Court Rules under the issue are in Rule 12(1) cited and set out earlier under Issue and effectively and fully answers the arguments of the learned counsel for the Appellants. Once more, the provisions say that: –

“Where there are numerous persons having the same interest in one suit, one or more of such persons may sue or be sued on behalf or for the benefit of all persons so interested.”

In his argument, the learned counsel did not say that the interests of the Respondents in the action are not the same, but admitted that they are similar, though not joint.

However, from the claims made by the Respondents in their pleadings and reliefs sought, it cannot be seriously argued that their interests in the suit are not the same. By the avernment in paragraph 5 of the Amended Statement of Claim and evidence of 1st Respondents and the other witnesses who testified in support of the claims, the Respondents purchased the land subject matter of the action at the same time from the same vendor and they all claim title to the said land on the basis of the said transactions, damages for trespass and injunction. The interests of the Respondents are not only similar, but common and the same in the suit for them to jointly initiate the suit against the Appellants who interfered with such interests in the land: the subject matter of the suit, in order to avoid the undesirable phenomenon of multiplicity of actions which the provisions of Order 13, Rule 12(1) aim to prevent.

It is absurd to suggest, as the learned counsel for the Appellants has done, that each of the Respondents should have filed a separate suit based on the same facts and issues and claim the same reliefs, only for them to subsequently apply that the suits be consolidated. The primary object and purpose of the provisions of the Rules of the High Court in Order 13, Rule 12(1) would be frustrated and defeated by such an action. In fact, the case of Adediran v. Interland Transport Limited (Supra) cited by the counsel support the filing of a single action by persons who have common interests, common grievance and claim the same relief that is beneficial to all of them, such as the Respondents in the action against the Appellants. Although the Respondents’ suit was not filed in strictly representative capacity by the 1st Respondents, claiming the requisite authority and capacity to represent the other Respondents, but was filed in his own capacity with the necessary legal standing in his own right and also for and on behalf of his children; the 2nd – 4th Respondents. It was a case filed by a competent party/claimant who because of the common interests, grievance and reliefs, also claims for and behalf of the 2nd – 4th Respondents; his co-claimants and it is supported by the Rules of the High Court and the judicial authorities on representative actions. See Commissioner for Finance v. Ukpong (2000) 4 NWLR (653) 363, Ejezie v. Anuwu (2008) 12 NWLR (1101) 446, Daniyan v. Iyagin (2002) 7 NWLR (766) 346.

For the above reasons, the action was properly and competently initiated by the 1st Respondents for himself and on behalf of the 2nd – 4th Respondents and the suit was properly constituted for the High Court to possess the requisite jurisdiction to adjudicate over it.

There is no merit in the issue and it is resolved against the Appellants.

Issue 3. Appellants’ Submission: –

The submissions are to the effect that the issues raised in the Respondents’ action were decided in an earlier decision by the Supreme Court in the Suit No: SC/50/2001, between the parties in which the Appellants’ family, were held to be the owners of the land at Maiyegun Village. According to counsel, the land subject matter of the Respondents’ action, was shown in the survey plan by Nigeria Institute of Surveyors which was admitted as Exhibit H at the trial, to fall within the land which was the subject matter in the Suit No: SC/50/2001.

He said even though the vast area of land belonging to the Maiyegun Family was acquired by the Lagos State Government and a part thereof excised to the Family, the Respondents’ claim of purchasing the land in dispute was before the acquisition by the Lagos State Government in 1993 and the Respondents did not claim through the new root of title created by the acquisition, but through the Elegushi Family which the Supreme Court in Suit No: SC/50/2001 said were not the owners of the land.

It is contended that as long as the Respondents claim through the Elegushi Family against the Maiyegun Family, the case amounts to a re-litigation of the action decided in Suit No; SC/50/2001, since the Respondents are privies of the Elegushin Family as was found by the High Court.

The Court is urged to resolve the issue in Appellants’ favour.

Respondents’ Submission :

It is submitted that from the evidence before the High Court, the subject matter of the Suit No: SC/50/2001 was the part of land acquired by the Lagos State Government and excised to the Maiyegun’s Family as was shown by survey plan and judgment in the suit tendered by the Appellants in evidence and admitted as Exhibits DF1, DF2 and DF3. The evidence of CW8 was also referred to in support of the submission that the land claimed by the Respondents does not fall within the area of land demonstrated in Exhibits DF1 and DF2 belonging to the Appellants’ Family. DW1’s evidence under cross-examination was also cited on the argument and the Court is urged to hold that the subject matter of the Respondents’ case is not res judicata.

In the case of Ojemen v. Momodu (1983) 3 SC, 172, (1983) ALLFWLR, 132. Obaseki, JSC had said that: –

“The doctrine of res judicata is so well settled as to require any restatement.

It has its true foundation in the legal maxim” nemo debat bis vexari pro una et eadem causa” (no man ought to be twice vexed or harassed i.e. tried for one and same cause). If an action be brought and the merits of the question be discussed between the parties and a final judgment obtained by either the parties are precluded and cannot canvass the same question again in another action although perhaps some objection or argument might have been urged upon the first trial which would have led to a different judgment. In such a case, the matter in dispute having passed in rem judicatem, the former judgment while it stands, is conclusive between the parties if either attempts by commencing another action to reopen that matter. It is the fundamental doctrine of all courts that there must be an end to litigation (“interest republicae ut sit finis lituim) See Co-Rep. 9 (a).”

In the later case of Alao v. Akano (1988) 1 NWLR (1971) 431, Craig, JSC said that: –

“…the doctrine of res judicata is very well known as a rule of evidence whereby a party is precluded from disputing in any subsequent proceedings, matters which had been adjudicated upon previously by a competent Court between him and his opponent. The principle behind this rule, is that where a competent Court has determined an issue, and entered judgment thereon, neither party relitigate that issue by formulating a fresh action on what has already been decided.”

On when or in which circumstances the principle or doctrine of res judicata would apply, Karibi-Whyte, JSC, in the case of Cardoso v. Daniel (1986) 2 SC, 491, (1986) ALL FWLR, 317, (86) 2 NWLR (20) 1, said:

“It is now elementary but necessary to state that the principle of res judicata applies only where there is a lis inter partes, to preclude party form raising again facts directly in issue which were the basis for the judgment in an earlier final proceeding by a competent Court between the same parties or their privies. See Toriola v. Williams (1982) 7 SC 27: Esi v. Chief Secretary (1973) 11 SC. 189. Fadiora v. Gbadebo (1978) 3 SC, 219: Timitimi v. Amabebe (1954) 14 W.A.C.A.”

See also Dzungwe v. Gbishe (1985) 2 NWLR (20) 1, Bamishebi v. Faleye (1987) 2 NWLR (1954) 57, Adedayo v. Babalola (1995) 7 NWLR (408) 383.

In line with the above pronouncements, the apex Court; per Chukwuma-Eneh, JSC, in the case of Ikotun v. Oyekanmi (2008) 34 NSCQR (Pt.1) 470, (2008) 19 NWLR (1094) 100, set out the requirements to be met for a successful plea of res judicata, when he stated that: – “For a successful plea of res judicata, the law requires, it must be emphasized, that the identities of the parties (or privies), the res, that is, the subject matter of the litigation and claim as well as the issues and the parties in both the present and previous actions have to be the same otherwise the plea is not tenable.”

See alsoAbubakar v. Bebeji Oil & Allied Product Limited (2007) 2 SC, 48; Ezenwa V Kareem (1990) 3 NWLR (138) 258, Yoye v. Olubode (1974) 10 SC. 14 SC. Also relevant for the purpose of this appeal, is the classification of privies in relation to the doctrine of res judicata set out by Idigbe, JSC in the case of Coker v. Sanyaolu ( 976) 9-10 SC (Reprint) 126. The learned

Law Lord had said that: –

“Privies are of three classes and they are: –

(1) Privies in blood (as ancestor and heir);

(2) Privies in law (as testator and executor; intestate and administration);

(3) Privies in estate (as vendor and purchaser, lessor and lessee.”

Finally, on who bears the burden of proof on application of the principle of res judicata in a case, Ogundare, JSC in the case of Ladimeji v. Salami (1998) 4 SC. I declared the law that: –

“The burden is on the party setting up the plea of res judicata to establish to the satisfaction of the Court that his opponent is seeking to put in controversy and relitigate some question of law, or issue of fact which is the very same question or issue which has already been the subject of a final decision between the parties.”

See also Ojiako v. Ewuru (1995) 1 NWLR (420) 400, Alao v. Akano (Supra).

As can be discerned from the expositions by the apex Court on the principle or doctrine of res judicata, like issue estoppel, it is a rule of evidence which was provided for initially, in Section 53 of the Evidence Act, Cap 62, in 1 Vol. 2, Laws of the Federation of Nigeria, 1958 and which has since then been retained and repeated in all the subsequent Evidence Acts, including the 2011 Evidence Act. It is now Section 173 and says that: –

“Every judgment is conclusive proof, as against parties and privies of facts directly in issue in the case, actually decided by the Court, and appearing from the judgment itself to be (the ground on which it was based, unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action an which that judgment is intended to be proved.”

In the present appeal, it was the Appellants who raised and pleaded the application of the principle to the case of the Respondents and, in proof thereof, put the judgment in Suit No: SC/50/2001 in evidence and maintains in this appeal, that the subject matter, issues and the parties (their privies) are the same with the case of the Respondents. Since the subject matter, issues and the parties in the Respondents’ case are borne out by their initiating and other processes, resort would have to be had to the judgment in Suit SC/50/2001 in order to find out what were the subject matter, the issues decided and the parties between who the case was decided for the plea of res judicata.

To start with, apparently, the parties in the Suit No: SC/50/2001 in which judgment was delivered by the Supreme Court on 15th July, 2005, the parties were Oba Yekini Elegushi & Ors. V Saraki Oseni & 4 Ors to whom, the parties in the Respondents’ case were/are privies; the Respondents; privies to the Elegushis, in estate as vendors and purchasers, while the Appellants are privies to the Maiyeguns to who Sarata Oseni & 4 Ors belong. The privies to the parties in the two (2) Suits are therefore the same.

However, from the issues joined by the parties in Suit SC/50/2001, the subject matter of the dispute between them was the 14.5 hectres of the Maiyegun Village land excised by the Lagos State Government after the acquisition of the Maiyegun Village, among other Villages, and returned to the Maiyegurr people, on their application.

The judgment in SC/50/2001 has stated clearly at page 7 thereof that:

“The area of land measuring 14.539 hectres, namely, the land in dispute, was excised and granted to the Defendants family by the Lagos state Government.” (underline provided for emphasis)

In the Respondents’ case before the High Court, in both relief 1 on the Amended Writ of Summons and paragraphs 5 and 21 of the Amended Statement of Claim, the land they claimed, which is the subject matter of the suit, is:

“( — copy the marked portion at pages 60 -61 of the Record of Appeal).”

From the evidence of the Respondents’ witnesses and particularly the sole witness who testified for the Appellants at the trial, Ologolo Village is different, distinct, separate and independent of the Maiyegun Village, part of which was excised to the Maiyegun people by the Lagos State Government after the acquisition. The Appellants’ witness; DW1 under cross examination, at page 147 of the Record of Appeal, has said that: –

“I know the villages that have common boundaries with Maiyegun. They are Gbara, Ologolo, Ilasan Orile and by extension Asapa London. Ologolo is a separate village and has its own leadership structure.”

It is therefore “clear as crystal” that while the land subject matter of the Suit SC/50/2001 was/is the land in Maiyegun village excised after the acquisition by the Lagos State Government of Maiyegun village land, among other villages, the land subject matter of the Respondents’ Suit is the land lying, situate and being at Ologolo village; a separate, different and independent village with its own leadership structure. The fact that the subject matter, though land, is different in the two (2) suits; i.e. Suit SC/50/2001 and the Respondents’ case, is beyond any peradventure on the face of the binding and immutable record of the suits. The subject matter in the earlier Suit SC/50/2001 and the subject matter in the Respondents’ later case, is/are not the same.

It may be recalled that one of requirements or conditions to be satisfied or met for the successful plea and application of the principle of res judicata, is that the subject matter of the earlier and the subsequent suits must be shown and proved to be the same.

Where any of the identified and recognized requirements/conditions was not satisfactory established or met, the plea of the doctrine or principle would fail. Alao v. Akano (supra). Ezeanya v. Okeke (1995) 4 NWLR (388) 142 @ 161; Balogun v. Akanji (1988) 1 NWLR (70) 301; Ojiako v. Ewuru (supra), Chinwendu v. Mbamali (1980) 3 – 4 SC, 31; Faleye v. Otapo (1995) 2 SCNJ, 195 @ 220-1; Bebeji Oil & Allied Products Limited (2007) 2 SC, 48, (2007) 18 NWLR (1066) 319, Egesimba v. Onuzuruike (2002) 9 -10 SC, 1, (02) 15 NWLR (791) 466.

In the premises of the law, the plea of res judicata by the Appellants was not proved or established as required by the law and the High Court was right to have so found and held on the evidence placed before it by the parties.

I find no merit in the issue and it is resolved against the Appellants.

Issue 4: Appellants Submissions:

The arguments are that the Respondents failed to prove the root of title they pleaded and relied on since they did not tender the certificate of occupancy (C of O) which they said their vendors; the Elegushi Family holds over the land in dispute, which is an essential element of their case. The case of Jiaza v. Bamgbose (1999) 7 NWLR (605) 192 @ 197 was cited on the duty of a party who relies on a document in proof of title to land to tender it in evidence and among others, Temile v. Awani (2001) 6 SCNJ, 190 @ 210-11 on the law that the Respondents are to succeed on the strength of their own case and not on admission by the Appellants. According to Counsel, the Respondents failed to prove their title by any of the five (5) ways it can be proved and that the High Court was wrong to have relied on the purchase from the Elegushi Family without evidence of the right of the Family to sell the land. It is his further argument that the High Court treated the Appellants as if they were the claimants who had the burden to prove that since their original title was revoked by acquisition, the Elegushi had the right to sell the land. In addition, that since the alleged sale by the Elegushi Family was in 1990, the Appellants’ title to the land was extant at the time since the revocation by acquisition happened in 1993.

Reference was made to page 226 of the Record of Appeal and paragraph 5 of the Respondents’ Amended Statement of Claim in support of the argument and in another vein, it is argued that since the 2nd – 4th Respondents were found to be infants, it was wrong to uphold their contract of sale represented by the purchase receipts as they lacked the capacity to enter into a valid contract, reliance was placed on Omidiji v. FCMB (2001) 13 NWLR (731) 646 @ 672. The High Court is said to be wrong in finding for the Respondents for trespass and award of damages for claims that ought to be dismissed since the Respondents could not have been in possession in 1990 or 1991 when the Maiyegun Family still had right over the land before it was revoked.

In further argument, counsel said the Respondents did not prove superior title over the Appellants to entitle them to succeed in trespass and the Court is urged to resolve the issue in Appellants’ favour.

Respondents’ Submission:-

Issue 4 was argued together with issue 5 and it is submitted that the Respondents duly established and proved their root of title as required by the law which does not say that it must be by any particular way or mode. Citing Idundun v. Okumagba (1975) 9 – 10 SC (Reprint) 140, Agu v. Nnadi (1992) 2 NWLR (589) 131 @ 146 and Ajibulu v. Ajayi (2004) 11 NWLR (885) 473 -4, it is submitted that a party is only required to prove title by any one of the established ways and that Respondents did so by tendering the receipts of purchase and evidence of possession; one of such ways. Learned Counsel argued that failure to tender the C of O pleaded was not fatal to the case of the Respondents since it was proved by one of the recognized ways.

In further argument, he said that contrary to the statement by the, Appellants’ Counsel, the judgment in Suit SC/50/2001 did not say that the Mayegun Family were the original owners of the whole Mayegun village measuring about 147.7 36 hectres before the acquisition by the Lagos State Government in 1993 as the size of the land in dispute in the case was explicitly stated therein at page 5 to be 14.534 hectres. In the alternative, counsel submitted that even if the Appellants were the original owners of the land purchased by the Respondents in 1990 and 1991, the acquisition and the excision to the their vendors, vested title in them and did not invalidate the Respondents’ right over it. He cited Chinwuba v. Alade (1997) 6 NWLR (507) 85 @ 97 on the concept of feeling the estoppels and maintains that even if the Respondents’ vendors had no estate in the land at the time of the sale but acquired it subsequently, the estate would pass to the purchaser without further conveyance.

On the submission that the 2nd – 4th Respondents being infants at the time of the sale of the land to them, lacked the capacity to contract, it is contended by the learned counsel for Respondents that the Appellants not being parties to the contract cannot challenge it on the principle of privity of contract. CCB Limited v. Nwokocha (1998) 9 NWLR (564), 98 @ 118 was cited for the position and it is further argued that even if the Appellants could challenge the contract of sale, since it was entered by the 1st Respondents on behalf of the 2nd – 4th Respondents, it is not void but voidable at their instance, on the authority of Chitty on contracts, 21st Edition, Vol. 1, pages 473-4 paragraphs 8 – 031.

The law is very firmly settled that a party claiming for declaration of title to or ownership of a piece of land in Nigeria, is required to plead and prove his entitlement to such declaration by or in any of the recognized and established ways or modes set out and restated in legion of judicial authorities, one of the earliest of which is Idundun v. Okumagba (supra). The five (5) ways by which a party is required to prove by any one, are: –
(a) By traditional history evidence, see Ezeakabekwe v. Emenike (1998) 62 LRCN, 4855; Ezinwa v. Agu (2004) 3 NWLR (861) 431 @ 456; Mogaji v. Cadbury (1985) 2 NWLR (7) 393 @ 431, Onyido v. Ajemba (1991) 4 NWLR (184) 203.

(b) By documents of title; statutory or customary, see Nnabuife v. Nwigwe (2001) 9 NWLR (719) 710 @ 723-4; Oshola v. Finnih (1991) 3 NWLR (178) 192; Folarin v. Durojaiye (1985) 2 SCNJ, 212, Okonkwo v. Okolo (1988) 5 SCNJ 128.

(c) By various acts of ownership, numerous and positive and extending over a length of time as to warrant the inference of ownership, see Ajeigbe v. Odedina (1988) 3 SCNJ, 52, Adegbite v. Ogunfaolu(1990) 2 NSCC (Pt. 3) 65, Ikpuku v. Ikpuku (1991) 5 NWLR (193) 571.

(d) By acts of long possession and enjoyment of the land, see Section 146 of previous Evidence Acts; 1958, 1990 and 2004, Section 143 of the 2011 Evidence Act, Agbara v. Amara (1995) 7 NWLR (410) 712, Ikpuku v. Ikpuku (Supra).

(e) By proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition, be the owner of the disputed land. See Section 35 of 2011 Evidence Act (Section 46 of 2004 Act) Okafor v. Idigo (1984) 1 SCNLR, 481, Oduwaje v. Ogbeide (1991) 3 NWLR (178) 147, Adeagbo v. Williams (1998) 2 NWLR (536).

In the case of the Respondents, their pleadings in paragraph 5 of the Amended Statement of Claim are to the effect that the land in dispute was out rightly alienated to them by virtue of a sale/purchase receipts from Oba Yekini Adeniji, the Elegushi of Ikate land. Their pleaded mode of acquiring ownership/title to the land is therefore documentary; sale/purchase receipt. In paragraph 7 of the Amended Statement of Claim, which remains uncontroverted by the Appellant and so deemed admitted and requires no further proof; see J.E. Elukpo & Sons Limited v. F.H.A. (1991) 3 NWLR (179) 322. Bayam v. Agana (2010) 9 NWLR (1199) 215, the

Respondents took possession after the sale/purchase. Although the sale/purchase was apparently under native law and custom and the law requires that the names of persons who witnessed the handing and taking over of physical possession of the land be pleaded and proved by a claimant; see Egonu v. Egonu (1978) 11-12 SC, 111, relying on Cole v. Folarin (1956) 6 SCNLR, 180, Igbokwe v. Nlemchi (1996) 2 NWLR (429) 185 @ 200, Yashe v. Umar (2003) 13 NWLR (838) 465, the unchallenged pleading in paragraph 7 of the Amended Statement of Claim, suffices for the Respondents in their case. Since the sale/purchase by them and the receipts issued there for and put in evidence at the trial, were not challenged at all by the Appellants. The resolution of Issue 3 on res judicata against the Appellants reinforces the position. Since the Appellants did not succeed in challenging the title of the Respondents’ vendors; the Elegushi Family over the land in dispute which has been established to be situate at Ologolo village and not Maiyegun village, the sale/purchase receipts constitute sufficient credible evidence to prove the root of title to the land they claimed, by documentary evidence which is one of the ways recognized for proof of such title. Once again, a party is only required by the law to prove title in any one of the ways recognized by the law and proof by any one such ways would suffice to warrant the declaration sought. See Piaro v. Tenalo (1976) 12 SC, 31, Onwugbufor v. Okoye (1996) Monthly Appeal cases; M.A.C, 1 @ 12, Nkado v. Obiano (1997) 5 NWLR (503) 31, Agun v. Nnadi (supra) Dabo v. Abdullahi (2005) 2 SC (Pt.1) 75 @ 91, Oyadare v. Keji (2005) ALL FWLR (247) 1583) @ 1596.

In the circumstances, failure by the Respondents to tender the C of O of the Elegushi Family over the Ologolo Village land where the land in dispute is situate, was/is not fatal to their case since the land, by the uncontroverted evidence before the High Court including that of Appellants’ DW1, in Ologolo Village which that Family had right of ownership. The Respondents pleaded and relied on the sale/purchase receipts of the land they claimed and they put them in evidence to prove the title/ownership they claimed and in the circumstances set out above, the C of O of their vendors becomes non sequitor on the issue of proof of their title to the land in dispute. The case of Jiaza v. Bamgbose (supra) cited by the counsel for the Appellants for the law that a party who pleads and relies on a document of title must tender it in evidence does not avail the Appellants in respect of the Respondents’ case. In the first instance, the facts of the case are different in that the Appellant in the case had pleaded and claimed to have acquired interest in the land in dispute by way of a Power of Attorney, which he however failed to put in evidence at the trial to prove the claims made.

The case was dismissed at both trial and the appeals to this Court and the apex Court. In the second instance, like I have stated above, the Respondents pleaded and relied on the sale/purchase receipts from vendors whose title/ownership of the land in dispute was not controverted, but rather confirmed by the evidence including that of the Appellants’ witness, under cross examination. The Respondents did not rely on and the High Court did not act on any weakness of the Appellants’ case or absence of defence to find for the Respondents, but both relied and acted on the uncontroverted, credible and sufficient evidence in proof of the claims on the balance of probabilities, as required by the law, for the decision in favour of the Respondents. Learned counsel for the Appellants has argued that the 2nd – 4th Respondents as infants, did not have the capacity to enter into the contract of sale of the land in dispute. All that needs be said has rightly been stated by his learned friend for the Respondents which is that at is an elementary principle of the law of contract that non parties and total strangers thereto, lack the legal standing and capacity to challenge the validity or sue on a contract they or their privies did not participate in since they acquire no right to do so in the contract. Chemical & Allied Products, Plc v. Vital Investment Limited (2006) ALL FWLR (342) 1502, Chacharos v. Ekimpex Limited (1988) 1 SCNJ 93.

In the case before the High Court, the Respondents showed they were in possession of the land in dispute before the Appellants trespassed thereon on the pretext that it was part of the Maiyegun Village land excised to them by the Lagos State Government and in respect of which their title/ownership was allegedly affirmed by the judgment in Suit No; SC/50/2001, which claim was debunked by the judgment, as demonstrated earlier under Issue 3.

Overall, the Respondents proved their root of title to the land in dispute as required by the law and the High Court was right to have so found.

The issue, for lacking in merit, fails and is resolved against the Appellants.

Issue 5: Appellants’ Arguments:

It is argued that the Respondents did not claim any cognizable right of occupancy under the law since they claimed customary/statutory Right of Occupancy, which was wrongly granted by the High Court. Citing Sections 34(1), (2) and (5), 36(1) and (2) of the Land Use Act and Okonkwo v. Okonkwo (2010) 14 NWLR (1213) 228 @ 257, learned counsel contends that the two (2) rights of occupancy cognizable are Customary Right of Occupancy and the Statutory Right of Occupancy for land in non-urban and urban areas, respectively and that the Respondents did not prove which one they claimed. That the declaration by the High Court as claimed by the Respondents was perverse and should be set aside. The court is urged to resolve the issue in Appellants’ favour.

Respondents’ Arguments:

Learned Counsel for the Respondents submits that the issue was raised by the Appellants in the final address for the first time and did not join issues on it with the Respondents in their pleadings. He said address of counsel, no matter how elegant, cannot take the place of or be substitute for pleadings and the Court is urged to discountenance the Appellants’ arguments on the issue as they have not shown the prejudice they suffered by the grant of the declaration as claimed.

The Court is urged to take judicial notice that the Government of Lagos State has not issued instrument designating the area where the land is situate, as urban or rural area and so the Respondents were right to have claimed for a grant of either customary or statutory right of occupancy, as alternative claim. The Court is urged to resolve the issue in Respondents’ favour.

I have set out, earlier, the relief 1 claimed by the Respondents on both the Amended Writ of Summons and the Amended Statement of Claim. In its judgment, the High Court granted the relief in the following terms: –

“It is hereby declared that the Plaintiffs are bonafide owner and are entitled a Customary/Statutory Right of Occupancy to the exclusion of any other person(s) in respect of the landed property lying, situate and being at Ologolo Village, Eti-Osa Local Government Area of Lagos State measuring 12 plots of 3 plots each to the Plaintiffs, more particularly delineated on Surveyor Plan Nos. BAASS310/D12816/LAG/84, BAASS310/D56814/LAG/84, BAASS310/D34814/LAG/84 and LBAASS310/D74813/LAG/84 dated 27th December, 1984 respectively drawn by Biodun Akinyemi a Licenced surveyor, a copy each of which is attached.”

As may be observed, the above relief granted by the High Court is a mere copy or repetition of the one claimed by the Respondents word or word.

I should mention that this issue and arguments of learned counsel for the Appellants is of no moment in this appeal since it was not raised before the High Court for its pronouncement on it, as a specie of objection to the terms of the Respondents’ claims on both the Writ and pleadings. I agree with the learned counsel for the Respondents that it is late in the day for it to be raised in this appeal even though it can be said to arise from the judgment and predicated on a ground of appeal against the judgment. However, being an objection to the pleadings of the Respondents, the proper stage to have been raised it was at the trial so that the High Court would have been afforded the opportunity to have considered and made a pronouncement thereon as an issue arising from the pleadings of the Respondents. Not being an issue which goes to the jurisdiction of the High Court to entertain and adjudicate over the Respondents case, it can not and should not be left at the whims of the Appellants.

In addition, since the Appellants from the evidence before the High Court has no legally cognizable interest whatsoever in the land over which the declaration by the High Court was made, “It is therefore a matter of great curiosity -” (to use the words of the learned for the Appellants at page 15-16 of the Appellants’ brief) for the Appellants’ Counsel to raise the issue that they did not claim any and Respondents were granted either customary or statutory Right of Occupancy by the High Court. Admittedly, both types of Rights are provided for and recognized by the Land Use Act and the learned counsel has not demonstrated that the High Court lacks the requisite power and authority to make the declaration in respect of either of the Rights or both of them.

The evidence before the High Court was that the Respondents purchased the land in dispute over which a C of O was granted by the Lagos State Government to the owners; the Elegushi Family and even though the C of O was not put in evidence at the trial, the finding that the Elegushi Family are the owners of Ologolo Village where the land is situate, in Eti-Osa Local Government Area has settled the entitlement of the Respondents to the declaration for the Right of Occupancy, be it of any type.

The Respondents are entitled to either or/and both types of Rights of Occupancy as declared by the High Court. I do not find merit in the issue and is resolved against the

Appellants.

In the final result, the resolution of all the five issues submitted by the Appellants for decision in the appeal, against them, leaves the appeal devoid of merit. The appeal fails and is dismissed in its entirety.

Costs of Five Hundred Thousand Naira are assessed in favour of the Respondents for the prosecution of the appeal and to be paid by the Appellants.

IKYEGH, JCA

I had the honour of reading in advance the comprehensive judgment prepared by my learned brother, Mohammed Lawal Garba, J.C.A. (Hon. P.J.), with which I agree with nothing extra to add.

TUKUR, JCA

My learned brother MOHAMMED LAWAL GARBA JCA, afforded me the opportunity of reading before today a draft copy of the lead judgment just delivered.
I adopt the judgment as mine with nothing further to add.

Appearances:

Solomon Adeseun For Appellant(s)

Chief Wale Taiwo with him, J. K. Aworinde and Basheer Shittu For Respondents(s)