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Can court proceeding can be relied upon to sustain a plea of res judicata?

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MR ADELEKE ADEDAPO v. MR. OPAWUYI ADIGUN OPAESAN & ANOR

CITATION: (2020) LPELR-50473 (CA)

In the Court of Appeal
Holden at Ibadan

ON WEDNESDAY, 5TH DAY OF AUGUST, 2020
Suit No: CA/IB/512/2014

Before Their Lordships:
JIMI OLUKAYODE BADA, Justice, Court of Appeal
HARUNA SIMON TSAMMANI, Justice, Court of Appeal
FOLASADE AYODEJI OJO, Justice, Court of Appeal
Between
MR ADELEKE ADEDAPO    – Appellant(s)
And
1. MR. OPAWUYI ADIGUN OPAESAN
2. MR. JAMES ADIGUN OPAESAN
(For themselves and on behalf of Opaesan
Section of Adewumi family)    – Respondent(s)

LEADING JUDGMENT DELIVERED BY JIMI OLUKAYODE BADA, J.C.A.
FACTS
This appeal is against the Judgment of the Oyo State High Court of Justice, Ibadan Judicial Division delivered on the 5th day of May 2014. By the Claimant’s Writ of Summons, the Claimants instituted an action against the Defendants claiming the following: “(a) A declaration that the Plaintiffs as next of kin and successor-in-title to the late Pa. Adigun-Opaesan of Adewumi Family are entitled to Statutory right of Occupancy and possession of the two large expanse of land measuring 1.695 Acres and 5.269 Acres of land situate, lying and being at Adewumi Village, Egbeda Area, Off New Ife road, Ibadan in Ona-Ara Local Government Area of Oyo State, particularly described and delineated by dispute Survey Plan No. OY/MSC/322/2010/02 dated June 1, 2010 drawn by Surveyor NiranBioku. (b) A perpetual order of injunction restraining the defendant whether by himself, his agents, servants, privies or otherwise so called from trespassing further trespassing, alienating, developing, excavating, digging, leasing, cultivating in whatever form on the two large expanse of land measuring 1.695 Acres and 5.269 Acres of land situate, lying and being at Adewumi village, Egbeda area, Off New Ife Road, Ibadan in Ona-Ara local government Area of Oyo State, particularly described and delineated by dispute Survey Plan No. OY/MSC/322/2010/02 dated June 1, 2010 drawn by Surveyor NiranBioku. (c) A declaration that the Plaintiffs as next of kin and successor-in-title to the late Pa. Adigun-Opaesan of Adewumi family are entitle to Statutory right of Occupancy and possession of the Adigun-Opaesan Section’s family house consist of ten rooms and its appurtenances situate, lying and being at N4/275, Alagbedes Compound, Adeoyo Agbadagbudu, Ibadan. (d) An order restraining the defendant whether by himself, his agents servants, privies or otherwise so called from disturbing, constructing, obstructing, or causing obstruction to the Plaintiffs’ enjoyment to their interest, right and privilege on the Adigun-Opaesan Section’s family house consist of ten rooms and its appurtenances situate, lying and being at N4/275, Alagbedes Compound, Adeoyo Agbadagbudu, Ibadan.”

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Upon being served with the originating process, the defendant caused a statement of defence and Counter Claim to be filed claiming declaration of title to same land amongst other reliefs. The case went for trial. At the conclusion of hearing, the learned trial Judge granted the claims of the claimants and the counterclaim of the defendant/appellant was dismissed. The defendant was dissatisfied with the decision of the High Court hence this appeal to the Court of Appeal.

ISSUES FOR DETERMINATION
The Court determined the appeal on the following issues: (1) Whether considering the totality of the case before the Court below vis-à-vis the evidence led by the parties and their witnesses, the Honourable Court below was right to have entered Judgment in favour of the Claimants (Respondents herein). (2) Whether from the totality of the case of the parties before the Honourable Court below, the Honourable Court below was right to have refused the Defendant’s (Appellant herein) counter claims in its entirety.

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APPELLANT’S SUBMISSIONS
Arguing issue 1, appellant submitted that where a claimant is relying on traditional history or evidence in proof of his title to a disputed land, he should plead and give evidence of facts relating to- (a) how the land was founded. (b) The person who founded the land and exercised original acts of possession. (c) The person on whom the title in respect of the land devolved since its first founding, that is the particulars of the intervening owners through whom he claims.

Citing Obioha & Ors vs. Duru & Ors (1994) 10 SCNJ Page 48 at 61 appellant submitted that the respondent failed to follow the laid down principles of law as laid down in Alli vs. Aleshinloye (2000) FWLR Part 15 Page 261 at 264 Ratio 2. The learned counsel for the appellant submitted further that the respondents never pleaded the names of intervening owners in succession without leaving any gap as well as their various acts of ownership, which they exercised during their respective tenures, and of how the land eventually devolved on the respondents. Appellant urged the Court to hold that the respondents failed to establish their title to the land in dispute.

Arguing issue 2, counsel for the appellant contended that the respondents relied solely on traditional history in proving their claim, but failed to follow the laid down principles of law as laid down in the case of Alli Vs. Aleshinloye (Supra). Counsel further argued that the respondents failed to plead and lead credible evidence on the succeeding heads of their family after the founder, in a chain of devolution up to the Respondents themselves.

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RESPONDENT’S SUBMISSIONS
Arguing issue 1, counsel for the respondents submitted in a claim for declaration of title in respect of inherited land, the claimant must plead and give evidence of the person who founded the land and all the persons who inherited the land through the ages to the present claimant. See Meka vs. Aniafulu (2006) All FWLR Part 309 Page 1465 at 1472 Paragraphs A-B. Counsel relied on the Judgment in Suit no. – 130/95 delivered by Oyo State Grade “C” Customary Court Ile-Tuntun, sitting at Mapo Ibadan. The said Judgment was tendered in evidence at the High Court and admitted as Exhibit D2.

Counsel argued that the respondents having established that the title to the land in dispute had been previously declared in favour of their ancestor and predecessor in title vide judgment in Exhibit D2, it became unnecessary for the respondents to prove ownership of the said land all over again. Relying on Mosalewa Thomas vs. Preston Holder (1946) 2 WACA Page 78 at 80, Bunyan vs. Akingboye (2001) FWLR Part 41 Page 1977 at 1990 Paragraphs B – D. Counsel conclusively argued that once a party pleads first settlement as a plea of traditional history and it is successfully placed before the court and accepted, the title of the land can be declared on such evidence. On issue 2, counsel submitted that the High Court was right to have entered Judgment for the respondents on the land in dispute and dismissed the counter-claim of the appellant.

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APPELLANT’S REPLY
Replying to the Respondents’ submissions on issue 1, Counsel submitted that Exhibit D2 (Judgment in Suit no. – 130/95 delivered by Oyo State Grade “C” Customary Court Ile-Tuntun, sitting at Mapo Ibadan) is not a Judgment but the record of proceeding of the Grade “C” Customary Court, Mapo Ibadan. He submitted further that in Exhibit D2 none of the parties in the case was awarded title to the land.

RESOLUTION OF THE ISSUES
Resolving issue 1, the court stated the trite position of the law to the effect that a party seeking a declaratory relief has the onerous burden of adducing credible and sufficient evidence to back the relief sought. Unless where the Defendant has filed a counter-claim there is no duty on him to prove anything. Citing Sunday Eguamwense vs. James. I. Amaghizemwen (1993) LPELR – 1049 (SC), Nnaemeka Okoye and Ors vs. Ogugua Nwankwo (2014) LPELR – 23172 (Sc) and Adeleke & Anor Vs. Iyanda & Ors (2001) 13 NWLR Part 729 Page 1.

Going further, the court stated that where a plaintiff claim title to land by traditional history, he must plead and lead credible evidence to establish the following to the satisfaction of the Court: (a) Who is the original founder of the land (b) How he founded the land and (c) The particulars of the intervening owners through whom the plaintiff claims. The cases of Obioha & Ors vs. Duru & Ors (1994) 10 SCNJ Page 48 at 61 and Alli vs. Aleshinloye (2000) FWLR Part 15 Page 2610 at 2614 were cited.

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The court then proceeded to consider the record of proceeding and held that the respondents did not cross-examine the appellant’s witnesses in respect of the intervening owners and the various acts of ownership exercised by them at various times during their lives. The court stated the position of the law that where traditional evidence is not contradicted or in conflict and if found to be cogent, it can support a claim for declaration of title. Citing Ekpo vs. Ita LL NLR Page 68, Alade vs. Awo (1975) 4 SC Page 215. The court further held that the respondents failed to state the intervening owners of the land in dispute in detail contrary to the established position of the law that in proving title to land by traditional evidence, a claimant must list all the intervening owners of the land in succession as well as their various acts of ownership over the land. However, the Court held that the appellant established the essential details of the traditional history as pleaded and backed it up with reliable evidence.

On Exhibit D2, the court held that the respondent and the High Court were wrong to have relied on it as it is clearly not a judgment of the Oyo State Grade “C” Customary Court, Ile Tuntun sitting at Mapo, Ibadan as submitted by the Respondent but merely the record of proceedings of the said Court. There was no decision reached by the Customary Court in the said Exhibit D2. Also, the parties in Exhibit D2 and the parties in the suit that led to the instant appeal are different. The High Court was therefore wrong to have relied on Exhibit D2 to sustain a plea of res judicata. Reliance was placed on Udo vs. Obot (1989) 1 NWLR Part 95 Page 59 and Adebayo Vs Babalola (1995) 7 NWLR Part 407 Page 303 at Page 405. The court thus resolved issue 1 in favour of the appellant.

Resolving issue 2, the court held that following the resolution of issue 1, Exhibit D2 upon which the High court relied to grant declaration of title in favour of the respondents had been struck down because it was not a judgment but merely a record of proceedings of the Oyo State Grade C Customary Court Ile-Tuntun sitting at Mapo Ibadan. As such, the traditional history of how the predecessors-in-title of the respondents became the owner of the land in dispute was not established because Exhibit D2 is not a Judgment and it did not decide any issue relating to title or possession.

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The resultant effect is that the respondents has therefore failed to follow laid down principles of law in proving traditional history as laid down in Alli vs. Aleshinloye (2000) FWLR Part 15 Page 2610 at 2614. Furthermore, that the respondents have failed to lead evidence of the succeeding heads of their family after the founder, in a chain of devolution up to the respondents themselves. On the other hand, the appellant led uncontradicted evidence of how the land devolved on him in proof of his counterclaim. The High Court was thus wrong to have dismissed the counterclaim. Issue 2 was thus resolved in favour of the appellant.

HELD
The court resolved both issues in favour of the appellant and allowed the appeal. The judgment of the High Court was set aside, and the counter-claim of the appellant as defendant was granted.
Appearances
Mr. S.O. Ogunjimi with him, R.A. Adewale
For Appellant(s)
Mr. Akinsumbo Akande     
For Respondent(s)
Compiled by Law Pavilion.

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