Compulaw - 1st Indigenous Digital Law Library

Brief

Consent judgement
Res judicata

Facts

The Respondents, who were the Plaintiffs at the trial High Court of Lagos, claimed the following reliefs in their writ of summons:

i
A DECLARATION that the Plaintiffs are entitled to Statutory Right of Occupancy in respect of the land in dispute edged blue in the composite plan No. APAT/ LA/428/1994 of 29th December, 1994.
ii
N200,000.00 (two hundred thousand Naira) being damages against the Defendant for trespass on the piece or parcel of land situate, lying and being at Igbo-Elerin Village Okokomaiko, Badagry Local Government Area and contained in Plan. APAT/LA/ 428/1994 of 29th December, 1994.
iii
PERPETUAL INJUNCTION restraining the Defendant, its servants, agents and privies from further entering upon or committing any further act of trespass on the said land.

In response, the Appellants, who were the Defendants at the trial Court filed a summons on Notice, in which they prayed for the following

1
"AN ORDER striking out the Plaintiffs' claims as offending the doctrine of Res Judicata in that the very matter in issue has been decided by the Supreme Court between the parties or those claiming through them.;
2
AN ORDER giving the Applicant, just a very short date to prove its counter-claim.
3
AND FOR such further order and/or orders as this Honourable Court may deem fit to make in the circumstances".

The motion was supported by an affidavit, the relevant averments in the said affidavit are herewith reproduced:

2
"that the writ of summons hereto attached and marked Exhibit A., the Plaintiff claimed to sue for themselves and as representatives of Ashaille family of Iba Town.
3
that the first Plaintiff witness, one Mr. Laidi, a younger brother of the 1st Plaintiff admitted, in cross-examination, that he knew of the consent judgment and ruling of the Supreme Court in suit No. SC.24/ 1979 thereof is hereto attached and marked Exhibit B.
4
That the said consent judgment and ruling were in respect of suit instituted by the Chiefs and People of Iba Badagry Division of which Ashailla family and the Plaintiffs are members.
5
That at page 3 of the lead ruling of Justice Aniagolu, JSC, the learned Justice stated: "The parties before us upon whose consent the said judgment was given were the people of Ojo Re Odun Perapo family, which included the Ado family whose members were represented by different Counsel and the Okokomaiko family."
6
That at page 3 of Justice Obaseki's ruling, the learned Justice said:- "the hearing of the appeal had concluded on the 2nd of June, 1980 and Counsel had agreed on the consent order to be made in appeal".
7
The leading Counsel who had agreed on the consent order referred to in six supra are:

i
Chief F.R.A. Williams SAN for Iba Community
ii
D. A. Agusto Esq., for Odan Parapo family.
iii
S. A. Bashua Esq., for Ado family.
iv
Dele Aroniyi Esq., for Okokomaiko family.

8
That the said consent judgment of Justice Sowemimo, JSC is at page 3 of Exhibit B.
9
That on the said judgment all the parties consented to respect the right of ownership of Okokomaiko community to the parcel of land as presented in plan No. CW/649/12 of 20/11/02.
10
That the parcel of land, the subject matter of this suit is clearly within plan or CW 7649/42 of 20/11/02 as per the composite plan hereto attached and marked Exhibit C.
11
That the Plaintiffs are claiming the whole of Okokomaiko to be theirs as the customary Landlords of Okokomaiko Community inspite of the consent judgment of the Supreme Court as agreed upon by Chief F. R. A. Williams SAN for Iba Community."

The Respondents filed a counter-affidavit and the averments germane to the application are herewith reproduced as follows :

7
"That I have read the judgment of the Supreme Court in suit No. SC/24/1979 annexed as Exhibit in this application.
8
that the That my Counsel informs me and I verily believe that the said judgment is also reported as Alhaji Raimi Edun v. Odan Community, Ado family and Okokomaiko community on page 210 of volume I of 1998 All Nigerian Law Reports.
9
That the suit is different in form and content from suit SC. 24/1979.
10
That I verily believe that it is necessary to explain the nature and content of the said judgment Exhibit B is from pages 1 - 4 as follows:

a
the suit was commenced in 1961 at the Ikeja High Court of Justice.
b
the original parties to the suit were chiefs and people of Iba represented by Gbadomosi Amodu Sonibare II as Plaintiffs and people of Ojo represented by Bello Ajilara as Defendants.
c
That family of Odan Parapo including Ado family and Okokomaiko community later applied to be joined and were joined at the High Court.
d
However the High Court did not comply with the applicable rules in that it failed to order an amendment of the Writ of Summons and the statement of claim.
e
this portion did not permit the Odan family and the Okokomaiko community to become proper parties as to enable them file proper statement of defence and as such their interest was neither considered nor determined by the Court."

11
that I am informed by my Counsel and I verily believe him that neither the Plaintiffs nor the Defendants in the present suit were parties to suit No. SC/24/1979.
12
that my Counsel also informed me and I verily believe him that the Supreme Court has declared in the said judgment that the consent judgment does not affect the claims of the parties joined by the order of Court, the Odan Parapo family and the Okokomaiko family whose interest were not adjudged upon as they did not file appropriate pleadings in the suit".

The Defendants/Appellants also filed a further affidavit, where it was deposed to in paragraph two (2) thus:-

"That in order to show that the representative of Okokomaiko, that is the 6th to 8th Defendants/Respondents in the Supreme Court with all members of Akaribo family and that the Defendants of Akaribo family are the Chiefs of Okokomaiko land, as per the Supreme Court judgment, copies of a power of Attorney of 30/7/76, a conveyance for one Aremu Clegg dated 2/8/63, out of the motley represented Exhibit A and the conveyance to the 1st Defend out of the motley are hereto attached and mad Exhibits F, C and N".

Both parties filed written submissions on the application and in his ruling dated 18/12/98, the trial Judge refused the application. The learned trial Judge in his conclusion he as follows:-

"As rightly stated by the learned Counsel for the defence, quoting from Nkwo v. Uchendu (1996) NWLR (Pt. 414) 1, the conditions that must exist sustain a plea of Res Judicata are:

1
The parties must be the same.
2
The claimed and the issues are the same
3
The subject-matter in controversy is the same
4
The judgment of the previous Court must be fi and by a Court of competent jurisdiction.

In the instant case, however, neither the claim the issues in both cases are the same, even though the parties in the present case were incorporated in the former case, their rights were not determined as by the holding of the Supreme Court, issues were not joined. Their purported defences their only claims, I accordingly dismiss application of the Defendants. I also order the order for accelerated hearing made by me is hereby rescinded as I find that rather than the parties take advantage of this concession by the Court have instead engage (sic) in one application after the other"

Dissatisfied with ruling of the trial Court, the Defendants unsuccessfully appealed to the Court of Appeal, Lagos Division hereinafter called the lower Court. After hearing the parties on the appeal, the lower Court affirmed the decision of the trial Court, and dismissed the appeal. The Appellants have further appealed to this Court by a Notice of Appeal dated 10th day of July, 2003."

Issues

Was there a consent judgment by this Court in 1980 and if so whether...

Daniel Tayar Trans Ent. Nig. Co. Ltd V. Busari (2011) CLR 1© (SC)

Judgement delivered on Janaury 14th 2011

Brief

Facts

Issues