ADESINA OKE & ORS v. SHITTU ATOLOYE & ORS

Kazeem, J.S.C.-In this appeal, the Appellants as Plaintiffs for and on behalf of themselves and Wonpori family sued the Defendant personally for a declaration of title under Yoruba Customary Law as owners of all that piece and parcel of land, situate lying and being at Ologbun Village, Shagamu, Ijebu-Remo; for damages for trespass and for an injunction to restrain the Defendant, his servants and agents from committing or continuing to commit acts of trespass on the said land. The land in dispute in this appeal formed the Southern portion of the entire parcel of land which formed the subject-matter of the proceedings in Suit No. 1/144/50 which was between one Josiah Sobanjo for and on behalf of the Simitara family as Plaintiffs and the present Appellants as Defendants.

The Plaintiffs in that 1950 case based their radical title on one Sofuyi Ajana who was described as their ancestor. Hence in paragraphs 4 and 8 of their Statement of Claim dated 1st March, 1951, they averred thus:-

“4. Very many years ago, the Plaintiff’s ancestor Sotuyi Ajana together with his children and servants occupied the land in dispute which was then a vacant and unappropriated virgin forest land.

8. The Plaintiffs avers further that since the time of Sofuyi aforesaid, the members of Plaintiffs family have (a) successively been in exclusive and undisturbed use and possession, and in absolute ownership of the land in dispute; and (b) have also successively cultivated various portions of the land in dispute, planted thereon cocoa trees, kola trees and food crops of different kinds and have always reaped all the palm fruits which grow on the said farmland.”

It is therefore clear from their statement of claim that the Plaintiffs were claiming in Suit 1/144/50 the whole land shown in the Survey Plan Exh. A as the land of their Ancestor-Sofuyi Ajana who had occupied the said land with his children and servants for very many years. There was no suggestion at that time, that the entire land had been partitioned between the children of Sofuyi Ajana. The Suit was tried by Abbott, J. who heard and considered the evidence adduced before him at the outset of the trial counsel for the Defendants admitted that the Plaintiffs were the owners of all the land claimed lying north-west of an imaginary line drawn west-ward from a point later marked X by the trial Judge. The parties then went to trial as to title to the land to the south of the imaginary line (hereinafter referred to as “Abbott line”) which according to the Plaintiffs’ plan-Exh. A-was bounded on the east by Ewu Oloja, and south west by Ogunbena’s farm land and on the west by the Defendants’ land. And in delivering his judgment, the learned trial Judge said:

“In actions for declaration of title it lies upon the Plaintiffs to prove acts of ownership numerous enough and extending over a sufficient period of time to show that they are entitled to be declared owners of the land. They have not discharged that onus here. There has never been any suggestion that the Plaintiffs were entitled to possession otherwise than as owners.

…………………….B…………………….

Therefore the claims for damages for trespass and injunction must also fail. Judgment must accordingly be entered for the Defendant on the whole claim so far as it regards the land South of the blue line and within the red edging on Exhibit “A”. I declare however that the Plaintiffs are the owners of the land North of the Blue line of Exhibit “A” and within the red edging thereon. There is no claim for or suggestion of trespass on this land, so a declaration of title is all the Plaintiffs can have in relation to that land ……”

Thus Abbott, J. had in that judgment (whether rightly or wrongly) awarded the southern portion of Abbott line to the Defendants (who are the Appellants in this case) even though they did not counter-claim for that portion of land.

The Plaintiff in Suit 1/144/50 appealed against that judgment to the West African Court of Appeal in Appeal No. 233/1953 (See 14 W.A.C.A. 593) where according to the judgment in that appeal the Plaintiffs/Appellants had admitted that the Defendants/Respondents had been for over ten years in possession of the area in dispute immediately before the action was commenced. However, the West African Court of Appeal after considering the submissions dismissed the appeal. Subsequently, the Abbott line was surveyed in 1956 by order of Court and it was properly demarcated to show the present land in dispute as what was awarded in the 1950 case to the Appellants in this appeal.

It is remarkable that during the survey of Abbott line in 1956, the Respondent protested against it; but he was advised by the Surveyor Mr Togonu Bickesteth to take necessary legal proceedings about it, and he did nothing. That much was admitted by Mr Odufalu learned Counsel for the Respondent during the hearing of this appeal. (Also see the Order of Court dated 23rd June, 1958 made by Doherty, J. which approved the Abbott line). Hence, the Respondent thus became aware that the Appellants were claiming possession and ownership of the land in dispute.

Apparently there was nothing done by both parties until on or about 1961 when the Appellants sued at the Abeokuta Judicial Division, the Respondent as 3rd Defendant along with two other persons as 1st and 2nd Defendants, for themselves and on behalf of Simitara family in Suit AB/35/61, for a declaration of title, damages for trespass and injunction in respect of the land in dispute. The Suit was later transferred to the Ijebu Ode Judicial Division as Suit No. IJ/3161. The case was tried and decided by Doherty, J. in favour of the Appellants on a preliminary issue of estoppel per rem judicatam raised by the Appellants and based on the effect of the judgment in Suit 1/144/50. But the Respondent’s appeal against the judgment and the appeal was allowed by the Supreme Court in FSC/445/63 in so far as it concerned the Respondent, with an order that the case be remitted to the appropriate Court for retrial by another Judge. Instead of applying for retrial, the Appellants instituted these fresh proceedings which were heard by Olu Ayoola, J.

…………………….C…………………….

Again in the pleadings of the Appellants in these new proceedings, the judgment in Suit 1/144/50 featured very prominently and it was relied upon as estoppel in paragraph 23 of the Statement of Claim thus:

“The Plaintiffs will contend at the trial that the Defendant is estopped from claiming the land in dispute in view of the said judgment in Suit No. 1/144/50 and confirmed by the West African Court of Appeal in W.A.C.A. 233/1953, on the 22nd day of October 1954.”

In his own pleadings, the Respondent also based his radical title on Sofuyi Ajana from whom he claimed title as his Ancestor in the same way as the Simitara family did in the Suit 1/144/50; but he said that during the life time of Sofuyi Ajana, he had partitioned all his land among his three children namely Simitara, Odemo and Osidemo; and that the land in dispute was the one allocated to the Odemo family to whom the Respondent belonged: See paragraphs 4, 8 to 14 of the Amended Statement of Defence at pages 58 to 62 of the Record. However, the Respondent denied that either he personally or his family the Odemo branch of the Sofuyi Ajana family was a party to the 1950 case instituted by the Simitara family against the Appellants; or that he stood by during the proceedings in that case. Hence he contended that the plea of estoppel could not operate against him.

In his judgment after the trial of the case, Olu Ayoola, J. found:-

(a) that the Respondent was not a member of the Simitara family, but was a member of the Odemo family and as such he could not be bound per rem judicatam by the decision in Suit 1/144/50 since he was not a party to the suit;

(b) that the Respondent was not present in court nor did he take any active part in the proceedings in Suit 1/144/50 such as to make him liable upon a plea of estoppel by conduct; and

(c) that the appellants failed to discharge the onus which lay on them to prove their claim.

The Appellants then appealed to the Western State Court of Appeal and although that court confirmed the findings of Olu Ayoola, J. that the plea of estoppel per rem judicatam could not operate against the Respondent, it nevertheless allowed the appeal on the ground that the judgment of Abbott, J. in Suit 1/144/50 was a judgment in rem; and declared that the Appellants were in possession. Dissatisfied with that judgment, the Respondent appealed to the Supreme Court of Nigeria. But before the appeal could be heard, the Federal Court of Appeal (as it then was) had been set up as an intermediate court which became seized of the matter. That court heard the appeal, set aside the decision of the Western State Court of Appeal and restored the judgment of Olu Ayoola, J. which had previously dismissed the Appellants’ claims. In effect, the Court of Appeal held that the decision in Suit 1/144/50 was not a judgment in rem; and that the fact that the Appellants were admitted to have been in possession 10 years before the 1950 case (i.e. 1940) was only binding on the Simitara family and not the Respondent who was not a party to the proceedings.

…………………….D…………………….

It is against that judgment that the Appellants had appealed; to this Court, on two grounds; the third ground on mixed law and fact having been struck out because no leave was obtained to file and argue it. The grounds argued are as follows:-

“1. The Federal Court of Appeal erred in law in going behind the judgment in the West African Court of Appeal in Suit 1/144/50 (W.A.C.A. 233/53 to the effect that the present Appellants had been in possession of the land in dispute for 10 years before the action was filed (i.e. 1950) thereby re-opening the issue of possession of the land in dispute already concluded; as a result of which the Court reversed the onus of proof which was settled on the basis of Section 145 of the Evidence Act.

PARTICULARS

(a) The Judgment in 1/144/50 was also evidence of acts of ownership.

(b) The traditional evidence in respect of possession and acts of ownership of the land in dispute by the Appellants was put beyond doubt by the judgment (1/144/50).

3. The Federal Court of Appeal erred in law in holding that the Respondents were not bound by the decision in 1/144/50 (as confirmed on appeal to the West African Court of Appeal in W.A.C.A 233/53) when the Respondents claimed in the High Court through an ancestor whose estate was not put in issue in the 1950 suit and were accordingly bound by the decision.”

In arguing the grounds one and three together, Chief Adaramaja, learned Counsel for the Appellants, made the following submissions:-

(i) that the Judgment in Suit 1/144/50 was a judgment in rem;

(ii) that, even if the judgment did not operate as res judicata, it operated as estoppel by conduct and standing by;

(iii) that in so far as the Appellants had been declared the owner or to be in exclusive possession of the land in dispute by a superior Court of record, the provisions of Section 145 of the Evidence Act automatically applied;

(iv) that both the trial court as well as the Court of Appeal were wrong in law shifting the burden of proof on the Appellants instead of the Respondent, and he relied on Mosalewa Thomas V., Preston Holder 12 W.A.C.A. 78 at page 80 in support;

…………………….E…………………….

(v) that where a Plaintiff as the Appellants in this case, traced its title directly to one whose title to ownership has been established, it is not necessary that the Plaintiff should prove such act of ownership. The burden is on the Defendant as the Respondent in this case to prove that he is not the owner; A.W. Elias v. B. A. Suleiman (1973) 12 S.C. 133 at page 129 was relied upon. It was then argued that having regard to the fact that the judgment in Suit 1/144/50 had awarded rightly or wrongly the ownership of the land in dispute to the Appellants; and in view of the admission that the Appellants had been in possession of the said land for over ten years before the 1950 case, the burden was on the Respondent to prove that the Appellants were no longer the owners. Hence it was contended that the Court of Appeal erred in putting the onus on the Appellants in proving their ownership of the land in dispute;

(vi) that the issue of the Appellants’ possession of the land in dispute had already been settled by the West African Court of Appeal in Appeal No. 233/1953: Mustapha Lawal v. Abdul Gbadamosi Ijale (1967) N.M.L.R. 155 at 157 was cited in support; and finally,

(vii) that the Respondent in this appeal claimed to be descendant of Sofuyi Ajana and traced his radical title to that ancestor; and even though the Plaintiffs in Suit 1/144/50 who also traced their radical title to the same ancestor-Sofuyi Ajana, sued as Simitara family at that time, both of them were members of the same Sofuyi Ajana group; and the Respondent could not be heard to say that he later belonged to a different group called Odemo family. Consequently, the court was urged to allow the appeal and to set aside the decision of the Court of Appeal and to grant the claims of the Appellants.

In reply, Mr Odufalu, learned Counsel for the Respondent submitted that even though the present appeal centred around the effect of the decisions in Suit 1/144/50 and W.A.C.A. No. 233/53 there was no finding of fact or declaration of possession by the trial Judge; that the trial Judge merely dismissed the Plaintiff’s claims; that there was no Counter-claim by the Defendants in the Suit, and they offered no evidence in support of their statement of defence; that the Respondent was neither bound nor affected by the said decisions because the parties in that case were different; that even if the said decisions because the parties in that case were different; that even if the said decisions awarded possession or ownership to the Appellants, the Respondent could not be bound by it; citing Halsbury’s Laws 3rd Edition, Vol. 15 at page 181, paragraph 354 in support; and finally that the judgment in Suit 1/144/50 was not specifically pleaded on the issue of possession. The decision in African Continental Seaway Ltd. v. Nigerian Dredging Roads and General Works Ltd. (1977) 5 S.C. 248 at page 250 was relied upon for that proposition. The Court was therefore urged to dismiss the appeal.

…………………….F…………………….

It seems to me from a consideration of the grounds of appeal and the submissions thereto by learned Counsel, that one important point which has arisen from this appeal is the relevance and effect which the Judgment of Abbot, J. in Suit 1/144/50 and the appeal there from had on this case. The issue whether the two decisions operated as judgment per rem judicatam or as judgment in rem had been laid to rest by the decisions of the two Appellate Courts in Ibadan; and the reasons and conclusions given in those decisions appear to me to be indefeasible. It is therefore unnecessary to reopen the matter again in this judgment. The only other issue remaining for consideration, in my view, is whether or not the other effects of the said decisions, if any, were fully considered by the courts below. Firstly, even though the learned trial Judge held that certain aspects of the said decisions did not amount to estoppel by conduct, did he consider all the evidence adduced before him which could be regarded as “standing-by” by the Respondent’s family? Secondly, did the Court of Appeal in Ibadan consider fully the effect of the said decisions as acts of ownership in favour of the Appellants so as to shift the onus on the Respondent to prove that the Appellants were not the true owners of the land in dispute? I do not think so. Let me therefore consider these two points.

On the issue of estoppel by conduct, the learned trial Judge said:-

“I find as a fact that the Defendant (the Respondent in this appeal)was not present in court nor did he take any active part in the proceedings in Suit 1/144/50 such as to make him liable upon a plea of estoppel by conduct”

The Court of Appeal did not avert to this issue at all and did not make any finding on it. However, it seems to me that the learned trial Judge did not consider all the relevant evidence adduced before him on that point before coming to his conclusion. It is to be noted that there was evidence that in 1950 one Yesufu Esu (alias Yesufu Atoloye) a senior brother of the Respondent among others trespassed on the land in dispute which gave rise to the action instituted in. Suit 1/144/50. There was also evidence that even though according to him, the Respondent was away in Benin in 1950, yet he put his brother, Shittu Atoloye as caretaker on the land at that time. If therefore the Respondent had been on the land since 1926 after succeeding his father who lived for 95 years on the land, then he must be aware of the presence of the Appellants who admittedly had been in possession of the land ten years before the 1950 Suit was instituted. Surely his brother Shittu Atoloye, the care taker, would equally have taken notice of the Appellants’ presence and activities on the land. More importantly, Salawu Oyedipe (D.W.1) (a nephew of the Respondent who claimed to be a member of the Boluade branch of Odemo family to which the Respondent also belonged), categorically said that he heard of the case Simitara family had some 22 years ago (which was Suit 1/144/50) and yet he did nothing. He also said that the children of Odemo used Odemo family land in common. Hence any knowledge by him ought to be imputed to the Respondent who defended the suit for the entire Odemo family. It is also remarkable that when the Simitara family (a branch of Sofuyi Alana family) sued the Appellants in 1950, they claimed ownership of the whole land in dispute as “Sofuyi Ajana land.” It was not then an issue that the land had been partitioned among the three children of Sofuyi Ajana; and that the present land in dispute belonged to the Odemo branch since 1926. Moreover, there was an occasion in 1958 when the Plaintiff in Suit 1/144/50 testified for the Respondent in this case, that when he surveyed the whole land for the 1950 case, he did it with the knowledge of Yesufu Atoloye and Jimoh Atoloye members of the Odemo branch who were in town at the time and did not protest: See the evidence of 4th Witness in the proceedings of the Customary Court Grade B at Shagamu of 10th November, 1958 between Josiah Atoloye of the Odemo family and one Daniel Sonoiki of the Ogunbery family which was tendered as Exh. G.

…………………….G…………………….

The sum total of all these pieces of evidences, in my view, leads to the conclusions that the members of the Odemo branch of Sofuyi Ajana family were not only aware of Suit 1/144/50, but they equally knew that Josiah Sobanjo for and on behalf of Simitara branch of Sofuyi Ajana family was claiming the whole land as Sofuyi Ajana land, and they did nothing. They stood by at the time and allowed the Simitara branch of the family to fight their cause for them in the 1950 case which was lost. They cannot therefore in my view be heard to say now that they are not estopped by conduct from relitigating the issue of ownership of the land in dispute. This equitable principle governing the issue of standing by which was laid down by Lord Penzance in Wytcherley v. Andrews (1871) L.R. 2 P&D 327 was applied by the West African Court of Appeal in Marbell v. Akwei 14 W.A.C.A. 143 at page 145. In the case, an Appellant was interested in a previous case and instead of applying to be joined as a Defendant in that case, he was content to stand by and see his battle fought by that person in the same interest. It was held that he was therefore bound by the result in that case and estopped from reopening the issue determined in that case. More elaborately, the same principle was applied by the Privy Council in a Ghanaian case of Abuakwa v. Adanse (1957) 3 All E.R. 359 the facts of which are as follows:-

“In 1940 Muronam sued Banka for a declaration of title to certain lands in Ghana. The claim was dismissed. The Stool of Akim Abuakwa to whom Muronam was subject and Stool of Adanse who claimed the land through Banka were not parties to these proceedings but knew of them. In 1954 Akim Abuakwa and Muronam claimed title to the lands as against Adanse and Banka. Adanse contended that Akim Abuakwa was precluded on the ground of estoppel by conduct since Akim Abuakwa knowingly stood by whilst the title was fought out by his subordinate in the previous proceedings.”

Lord Denning, who delivered the opinion of the Board, said inter alia at page 561 that:

“The general rule of law undoubtedly is that no person is to be adversely affected by a judgment in an action to which he was not a party, because of the injustice in deciding an issue against him in his absence; but this general rule admits of two exceptions. One exception is that a person who is in privity with the parties, a “privy” as he is called is bound equally with the parties in which case he is estopped by res judicata; the other is that a person may have so acted as to preclude himself from challenging the judgment in which case he is estopped by his conduct.

English law recognises that the conduct of a person may be such that he is estopped from litigating the issue all over again. This conduct sometimes consists of active participation in the previous proceedings as for instances where a tenant is sued for trespassing on his neighbours land and he defends it on the strength of the landlord’s title and does so by the direction and authority of the landlord. If the tenant loses the action, the landlord would not be allowed to litigate the title all over again by bringing an action in his own name. On other occasions the conduct consists of taking an active benefit from the judgment in the previous proceedings. Such as happened in Re Lart Wilkinson v. Blades (1896) 2 Ch. 788. Those instances do not, however cover this case which is not one of active participation in the previous proceedings or actual benefit from them but of standing by and watching them fought our or at most giving evidence in support of one side or the other.”

…………………….H…………………….

His Lordship then applied the principle laid down in Whytcherly v. Andrews (Supra) which states thus:-

“There is a practice in this Court by which any person having an interest may make himself a party to the suit by intervening, and it was because of the existence of that practice that the Judge of the Prerogative Court held that if a person knowing what was content to stand by and see his battle fought by someone else in the same interest, he should be bound by the result and not be allowed to reopen the case. The principle is founded on justice and common sense and is acted upon in courts of equity where if the persons interested are too numerous to be all made parties to the Suit, one or two of the class are allowed to represent them; and if it appears to the court that everything has been done bona fide in the interest of the parties seeking to disturb the arrangement it will not allow the matter to be reopened.”

Consequently, it was held that Akim Abuakwa was estopped from raising the question of the title to the land in the present proceedings by having taken no part in the previous proceedings where the matter to be determined was the same. Having regard to the circumstances of this case, I am satisfied that the same principle is applicable here.

Again, on the issue of possession and ownership of the land in dispute, the effect of the judgment in suit 1/144/50 were not considered at all by the trial court; and the Court of Appeal in Ibadan did not adequately deal with them either. Hence both courts put the onus of proving ownership of the said land again on the Appellants contrary to the provisions of Section 145 of the Evidence Act, Cap. 62 of the Laws of the Federation.

It is to be noted that it was pleaded in paragraph 11 of their Statement of Claim that the Appellants (the Wonpori family) had for many years been in exclusive possession of the land in dispute and openly exercised exclusive right of ownership thereon. Indeed, Abbot, J. whether rightly or wrongly awarded ownership of the said land in dispute to the Appellants in the 1950 case. Moreover, that exclusive possession of the land in dispute for at least ten years before the 1950 case was conceded to the Appellants at the West African Court of Appeal by the Simitara family; and it was not then an issue that the whole land of Sofoyi Ajana had been partitioned among his children; and that the land in dispute (which formed almost half of the whole land) had been given to the Odemo family. The fact that the Appellants were in possession of the land in dispute could not even be disputed by the Respondent. They saw in 1956 the Appellants’ licensed Surveyor demarcating the land in dispute for the appellants but took no positive action to challenge him or the Appellants apart from mere protest. But those aspects of the case were not fully considered by the Court of Appeal at Ibadan. The Court seemed to be more concerned with the fact that the Respondent, not being a party to the 1950 case, was not bound by its decision; and it then put the onus on the Appellants to prove their claims which it said they failed to do.

…………………….I…………………….

Section 145 of the Evidence Act provides that:

“when the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.”

and that provision has been applied by this Court in Mustapha Lawal v. Abdul Gbadamosi Ijale (1967) N.M.L.R. 155 at page 157.

It was an established fact by the decision of the trial court that the land in dispute was excised by the Appellants for at least ten year prior to the 1950 case, and the ownership of the said land was awarded to them. The Respondent was aware of that exercise of possession and ownership in 1956 and did nothing to challenge it apart from mere protest. In my view, the onus therefore lay on the Respondent who averred the contrary, to prove that the Appellants were not the true owners: Having failed to do so, I am of the opinion that the court of Appeal grossly misdirected itself in putting the onus on the Appellants.

In the circumstances, the appeal succeeds; and it is hereby allowed. The decision of the Court of Appeal, Ibadan dated 20th July, 1983 (per Uche Omo, Dosunmu and Omolulu-Thomas, JJ.C.A.) is therefore set aside. Accordingly, I will make the following orders:

(a) The Appellants are hereby granted a declaration of title as owners under Yoruba Customary Law to all that piece or parcel of land situate lying and being at Ologun Village, Shagamu as delineated on the Survey Plan No. 4648 tendered as Exhibit A in the proceedings and edged Yellow.

(b) A sum of N100.00 is hereby awarded as damages as trespass committed by the Respondent (who defended the suit for the Odemo branch of Sofuyi Ajana family), and/or his servants or agents.

(c) The Respondent, and other members of the Odemo branch of the Sofuyi Ajana family, their servants and or agents are also hereby restrained from committing or continuing to commit acts of trespass on the said land.

(d) The Respondent to pay to the Appellants costs assessed at the High court, Ijebu Ode at N400.00; and in this Court at N300.00.

Aniagolu, J.S.C.-I agree with the judgment read by my learned brother, Kazeem, J.S.C. I, too, would allow this appeal and hereby allow it. I abide by the rest of the orders made by my said brother in the lead judgment.

…………………….J…………………….

The main problem in the Courts below in their determining this appeal, was their treatment of the 1950 case, Suit No. 1/144/50, (hereinafter referred to as the “Abbott judgment”) as if it did not exist. But the Abbott judgment did in fact exist and was a judgment of a Court of competent jurisdiction which was not set aside and was binding, with full force and effect. That judgment, rightly or wrongly, awarded the land south of the “Abbott line” to the Appellants who had been in physical possession of the land for at least ten years before the “Abbott judgment”. Indeed, the West African Court of Appeal judgment on the case is reported in 14 W.A.C.A. 593-Josiah Sobanjo v. Adesina Oke and Ogunsina Onabote. And so, far from being ignored, it is so much alive that it now forms part of our settled law. The Court held that the boundary line drawn by the trial Judge was not an imaginary line.

Again the Respondents were clearly caught by the equitable principle of “standing by” as dealt with in the lead judgment. The activities of Shittu Atoloye, the Respondents’ caretaker, and Salawu Oyedipe, the Respondents’ nephew, were sufficient and proximate enough for the Court to impute knowledge of the Abbott proceedings to the Respondents and to hold them legally caught by the equitable doctrine of standing by.

Nnamani, J.S.C.-I had the advantage of reading in draft the judgment just delivered by my learned brother, Kazeem, J.S.C. I agree entirely with his reasoning and conclusions.

It seems to me that this appeal revolves around the manner in which the Court of Appeal dealt with the judgment of the High Court in Suit No. 1/144/50 and the judgment of the West African Court of Appeal No. 233/1953. In the Suit 1/144/50, one Josiah Sobanjo (on behalf of himself and the Simitara family) sued the plaintiffs/appellants claiming ownership of land demarcated in a Plan Exhibit “A” in that Suit, which included the land in dispute in this Suit. Abbott, J. in giving judgment in that Suit drew line on the plan and awarded the land to the North of the Plan to the family of the Defendants/Respondents herein and the land to the South to the Plaintiffs/Appellants. When the Plaintiffs in 1/144/50 appealed to the West African Court of Appeal, that Court not only dismissed their appeal but found that the Plaintiffs/Appellants herein had been in possession of the portion of land granted to them by Abbott, J. (and now in dispute) 10 years before the Suit 1/144/50.

In the present Suit, the High Court, the Western State Court of Appeal and the Court of Appeal, Ibadan Judicial Division held that the defendants/respondents not being parties to the Suit 1/144/50 could not be bound by it and so the judgment did not constitute res judicata.

…………………….K…………………….

I am in agreement with my learned brother that both the High Court and the Court of Appeal did not advert their minds to the other implications of the judgment in 1/144/50 beyond the issue of estoppel per rem judicatam. As the Western State Court of Appeal rightly observed as regards the learned trial Judge:

“In our view, the court below considered only the aspect of Suit 1/144/50 for purposes of res judicata but not as act of ownership and that is why the trial court observed that the evidence of plaintiffs both as to traditional history as well as acts of ownership is weak, unimpressive and inadequate.”

The Court of Appeal, for its part, was content in holding that the Abbott judgment neither constituted Res Judicata nor was it a judgment in rem. In paragraph 23 of the appellants’ amended statement of claim, they pleaded as follows:-

“23. The Plaintiffs will contend at the trial that the Defendant is estopped from claiming the land in dispute in view of the said judgment in Suit No. 1/144/50 and confirmed by the West African Court of Appeal in West African 233/1953, on the 22nd October, 1954.”

It is trite law that estoppel stretches beyond estoppel per rem judicatam to estoppel in pais, estoppel by dee, estoppel by negligence etc. More relevant to the present proceedings is estoppel by conduct. If the respondents can be shown to have been actively involved in the proceedings in 1950 they certainly could not have successfully warded off the consequences of that judgment. Again, and perhaps even more relevant to the present proceedings, if party stands by and allows another to fight his battle in a litigation which touches on his interests he cannot be heard later on to complain. See Whytcherley v. Andrews (1871) L.R. 2 P.D. 328; Nana Ofori Atta II, Omannene of Akyen Abuakwa v. Nana Abu Bonsra II (1957) 3 W.L.R. 830; Uwalaka v. Agba (1955) 15 W.A.C.A. 63; Joaqum v. Labinjo (1961) L.I.R. 169. In the instant appeal, although Josiah Atoloye may not have been a party in 1/144/50 there are circumstances in the case which raise estoppel by conduct precluding him from asserting that the land now in dispute belongs to his Odemo section of the Sofiu Ajana family. There is no doubt that he knew of the Suit 1/144/50 and W.A.C.A. Appeal 233/1983. It is significant that his brother Yesufu Esu (Atoyole) was one of the people convicted for uprooting boundary pillars of the land in dispute in the Shagamu Native Court before the trial of Suit No. 1/144/50.

…………………….L…………………….

Furthermore, following the order of the court in 1/144/50 when a Surveyor, Akinyemi Togonu Bickersteth, went to demarcate the two portions as ordered by Abbott, J. the defendants/respondents’ family challenged him. The Surveyor advised them to file proceedings in Court if they felt that their interests were adversely affected. No Such suit was filed.

Indeed one cannot escape the suspicion that the Simitara section of the Sofiu Ajana family having failed in their bid for ownership of the land in dispute in 1/144/50, the defendants/respondents of the same Sofiu Ajana family but admittedly the Odemo section are making the effort to wrest the land from the appellants on the ostensible ground that they were not bound y that decision being a different family!

One final aspect of the appeal which also flows from the judgment in 1/144/50 and on which I wish to comment

briefly is the finding by the West African Court of Appeal, based on the concession by the respondents, that the appellants had been in exclusive possession of the land in dispute since 1940. The Court of Appeal did not think that that statement by the West African Court of Appeal was of any consequence holding that even if the plaintiffs in 1/144/50 made the concession held against them, it could not be binding on the defendants/respondents since they were not parties to that Suit. It is also my view that if as the West African Court of Appeal did find, the appellants were in possession of the land in dispute since 1940, Section 145 of the Evidence Act ought to have been applied. That section of the Evidence Act provides that:-

“When the question is whether any person is owner of anything of which he is in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.”

It was therefore wrong to put the onus of proof of their title to the land in dispute on the appellants. In his judgment in 1/144/50 Abbott, J. actually decreed rightly or wrongly in favour of the appellants herein-

“Judgment must accordingly be entered for the Defendants on the whole claim so far as it regards the land south of the blue line and within the red edging in Exhibit ‘A’.”

…………………….M…………………….

The W.A.C.A. confirmed this. This is a judgment for title to that portion of the land which is now the land in dispute herein. They were found to be in possession of it even before 1950. I agree that that little having been established in principle in Thomas v. Holder (1946) 12 W.A.C.A. 78 must apply and the onus must shift to the Respondents to show a better title.

It is for these reasons, and the more detailed reasons ably given by my brother Kazeem, J.S.C. that I too would allow this appeal. I abide by my learned brother’s order as to costs.

Kawu, J.S.C.-I have had the advantage of reading, in draft, the judgment of my learned brother, Kazeem, J.S.C. which has just been delivered and I am in complete agreement with him that the appeal should be allowed. For all the reasons so ably set out in the said judgment, I will allow the appeal and set aside the decision of the Court of Appeal, Ibadan, dated 20th July, 1983. I abide by all the orders made in the lead judgment.

Oputa, J.S.C.-I have had the privilege of reading in draft the lead judgment just delivered by my learned brother Kazeem, J.S.C. He considered in some detail the pleadings, the relevant evidence and the judgments of the various courts through which this case has travelled in its long chequered and tedious journey. The grounds of appeal to this Court were fully set out and adequately considered and at the end, my learned brother allowed the appeal. I am in complete agreement with him that this appeal should be allowed and for reasons so ably set out in the lead judgment.

But as one reads the judgments of the Court of Appeal, Ibadan Division as well as the other judgments in this case, one soon discovers some confusion of thought about the difference between a judgment in rem and a judgment in personam. There was also a misconception of the extent of the doctrine of estoppel. As the main issue urged before us was whether the court below was right or wrong in its interpretation and application of these doctrines, I intend to comment, by way of further emphasis, on the effect of Suit 1/144/50 tendered as Ex. E (hereinafter called the Abbott judgment) and the appeal judgment of the West African Court of Appeal confirming the Abbott judgment in 14 W.A.C.A. 953 (hereinafter referred to as the W.A.C.A. judgment) on the present proceedings now on appeal.

…………………….N…………………….

In this brief subnomen issues involved in this appeal the appellant stated the first issue as-

“(a) whether the judgment in Suit No. 1/144/50 as confirmed by the W.A.C.A. Appeal No. 233/1951 is a judgment in rem and so operates as an estoppel (res judicata) against all persons whether as party or not including the Defendant/Respondent?”

Chief Adaramaja for the Appellants arguing his grounds 1 and 3 together urged the court to hold that the Abbott judgment and the W.A.C.A. judgment are judgments in rem and therefore binding on the Respondent whether he was a party thereto or not. The argument was weak and unconvincing. I was far from being persuaded that a judgment in a land case can be elevated to the dignified status of a judgment in rem.

A judgment in rem is an adjudication pronounced upon the status of a particular subject matter by a tribunal having competent authority for that purpose. It is founded on proceedings instituted to determine the status of a particular subject matter. A declaration by the court that Shugaba Abdulrahman is a Nigerian citizen (a decree as to nationality) is a judgment in rem: see (1981) 2 N.C.L.R. 459. So is a decree of Divorce or a decree of Legitimacy. These decrees as to status are binding on all the world, parties as well as non-parties. They are contra mundum. A judgment in personam is a judgment inter partes. It is really a judgment against persons who are parties or privies to the particular proceedings as distinguished from a judgment against “a thing” or “a right” or “Status”. In a land case, the judgment is usually for the plaintiffs or for the Defendants, it is never a judgment against the land itself. That is why there can be several land cases in respect of the same piece of land inspite of existing judgments pronouncing that as between the parties then before the court, the land belongs to either the Plaintiffs or the Defendants; and that is also why in a land case parties can plead all sort of estoppel, because a judgment in personam is necessarily a personal obligation binding on the parties or their privies.

The Court of Appeal Justices were perfectly right in dismissing the argument that the Abbott judgment and the W.A.C.A. judgment there from are judgments in rem. Uche Omoh, J.C.A. presiding, described that submission as misconceived. He was right. Dosunmu, J.C.A. in his concurring judgment observed at p. 162 of the record of proceedings:-

“I wish to add to this that it would appear to me rather inconsistent to hold on one hand that a judgment for possession creates no estoppel per rem judicatam against a person not a party to it and to hold on the other hand that it is a judgment in rem binding against the whole world including a person not a party to it. It seems to me that a judgment for possession, and it has been demonstrated in the lead judgment that Suit 1/144/50 is not such a judgment, is like a judgment for declaration of title-a judgment in personam.”

…………………….O…………………….

(The italics is mine).

I agree with Dosunmu, J.C.A. that judgments for declaration of title or for possession are merely judgments in personam and not judgments in rem and that is why with regards to those documents, one party can plead an estoppel against the other party. An estoppel is personal to the parties. It can only be used to prevent the opposite party or his privy from denying the effect of the act or judgment pleaded as estoppel. An estoppel cannot bind those who were not parties or privies-in other words, they do not bind third parties or the whole world, and therefore cannot confer or establish title or a legal right contra mundum: See Evans v. Bartlam (1937) 2 All E.R.646 at p.653. Lord Brett, L.J. brought the point here being made clearly and forcefully in Simm v. Anglo American Telegraph Co. (1879) 5 Q.B.D. 188 when he observed:-

“An estoppel gives no title to that which is the subject matter of the estoppel.”

An estoppel is binding on the parties and not on the reality (in this appeal not on the land itself).

But had the Abbott judgment and the W.A.C.A. appeal there from any effects at all on the rights of the parties in this appeal? Was the Court of Appeal right in treating those two judgments as though they never existed once it had decided that they were not judgments in rem? It is to be observed that the Court of Appeal in this case was not sitting on appeal against either the Abbott judgment of 1/144/50 or the W.A.C.A. judgment reported as (1952/55) 14 W.A.C.A. 593. It was not their duty or function to agree or disagree with those two judgments on the rights of the parties before them. This can be done by looking at the pleadings and the evidence of the parties in the present case. In paragraph 22 of their Statement of Claim (p. 42 of the Record) the Plaintiffs now Appellants pleaded:-

“The plaintiffs, will contend at the trial that the defendants are estopped from claiming the land in dispute in view of the said judgment in Suit No. 1/144/50 given against them on 21st day of October, 1952, and confirmed by the West African Court of Appeal in W.A.C.A. 233/1953 on the 22nd day of October, 1954.”

It is to be observed that a party is not bound to reply on an estoppel available to him. He may waive it from motives of delicacy or generosity. In that event, the courts would have no further say in the matter. This is analogous to a situation where a man of high honour disdains to plead privilege to an action for defamation. But once estoppel is pleaded, it becomes the duty of the court to consider whether, as in this case, the judgments pleaded would and did operate as an estoppel: See G.B. Ollivant Ltd. v. Kwesi Baa Korsah (1914) 7 W.A.C.A. 188 at p. 194; Kwasi Agyako v. Nazir Zok & Ors. (1944) 10 W.A.C.A. 277 at p. 280.

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There are many types of estoppel, namely-Estoppel per rem judicatam; Estoppel by conduct-like active participation in the previous suit; Estoppel by taking actual benefit from the previous suit as in Re-Lart Wilkinson v. Blades (1896) 2 Ch. 788; Estoppel by Inaction-by merely Standing By when one’s vital interest should have compelled one to intervene; see Wytcherley v. Andrews (1871) L.R.2 P.D. 328; Abuakwa v. Adanse (1957) 3 All E.R. 599. In the case of Yode Kwao v. Kwasi Coker (1930-33) 1 W.A.C.A. 162 the facts were as follows: “sometime before 1896, one N sold certain land to A.A then sold a portion of the land to T, a predecessor of the defendant. Later N sold the land a second time to a syndicate consisting of 3 persons-B, C and the plaintiff. This resulted in an action between A and N in a Native Tribunal in which A was declared to have been owner of the land. Sometime after B asserted a right to a portion of the land, and was sued for trespass by the defendant in a Divisional Court. The land was found to be the property of the defendant. In the present suit, the plaintiff sued the defendant for trespass. It was held by W.A.C.A. affirming the decision of the court below, that the title of the plaintiff was identical with that of B and that as he had stood-by and acquiesced in the title being determined in favour of the defendant in the Divisional Court, he was estopped now from asserting a title to the land.” At p. 164 Sawrey Cookson, J. observed:

“It is very significant …… that although Yode Kwao was present throughout the hearing before Sir Brandford Griffith, he did not apply to be joined as a party to the action if he knew, as he must be taken to have known, that his own interests were then at stake as well as those of Nmate, they having bought their land at the same time from the same source.” (The italics are mine as they bear some resemblance with the facts of the case on appeal).

And at p. 167, Deane, C.J. observed:-

“It is true that the action was nominally against Odonkor Nmate, but as I have pointed out ……… the title of Odonkor Nmate was identical with the title of the plaintiff. The plaintiff would know fully well that the title of his syndicate was being called in question when Odonkor Nmate’s title was challenged ………… Beyond giving evidence, however, he did nothing although he must have known well that the question was being litigated very deeply concerned him and that the title to his land was being affected. He was content to let Odonkor Nmate fight the battle while he kept in the background.”

The above is the doctrine of “Standing By”. If a party stood-up and allowed another to do an act in a particular way which he could have prevented at the time, he must be held bound by the act so done with his acquiescence:-Hoden v. London Small Arms Co. 46 L.J.O.B.D.213 per Cockburn, C.J. Lord Cottenham in Leeds (Duke) v. Amherst (Lord) 16L.J. Ch5 put the doctrine this way:-

“If a party having a right stands by and sees another dealing with the property in a manner inconsistent with that right, and makes no objection while the act is in progress, he cannot afterwards complain.”

…………………….Q…………………….

Estoppel per rem judicatam is therefore different from Estoppel By Standing By.

The court below was right in rejecting the submission that the Abbott judgment and its W.A.C.A. counterpart were judgments in rem or that they each constituted an Estoppel per rem judicatam. But was the court below right on the issue of Estoppel by Standing By?

Let us now look at the facts. From the Defendant/Respondent’s Statement of Defence and evidence, the following facts emerge:-

1. That the present Respondent was a descendent of Shoofly Ajani who was the original owner of the whole area in dispute in Suit 1/144/50.

2. That the said Shoffuyi Ajani had three sons, namely Simitara, Odemo and Osidemo.

3. That in 1950 in Suit 1/144/50, the Simitara Branch of the Shoffuyi Ajani family sued the Wonpori family for a declaration of title to the whole land. This claim was obviously against the interest of the Odemo and Osidemo branches of the Shoffuyi Ajani family except, of course, the Simitara branch was acting for and on behalf of all the descendants of Shoffuyi Ajani.

4. That the 1950 action was sparked off by the wrongful entry into the land then in dispute by:

(1) Josiah Sobanjo

(2) Adesina Osolanke

(3) Samao Aiyeola

(4) Batola Osoneye

(5) Yesufu Esu (alias Yesufu Atoloye, the elder brother of the Defendant and Respondent in this appeal).

5. That the Simitara family were the Plaintiffs in the 1950 action while Adesina Onubule was sued as defendant representing the Wompori family-the present Appellants.

6. That Abbott, J. with a blue line across Plan No. 08-23 divided the whole land into two, giving the Northern portion to the Simitara family and the Southern portion to the Wonpori family and dismissed the Simitara claim to a declaration of title.

7. That the Simitara family appealed to the West African Court of Appeal.

8. That their appeal to W.A.C.A. was also dismissed in 1953: see 14 W.A.C.A.p. 593.

9. That the West African Court of Appeal noted at p.594 “that the plaintiff (Simitara) admitted that the defendants (Wonpori) had been for over ten years in possession of the area in dispute immediately before the action (of 1950) was commenced. The burden was upon the plaintiff to prove by independent evidence his right to a declaration and other relief. This he has failed to do.”

10. That in 1956, a Licensed Surveyor: A. Togonu Bickersteth fixed boundary pillars separating the Northern and Southern portions along the Abbott blue line.

11. That the Surveyor was challenged by the Respondent’s family. Thereupon, the Surveyor asked them to sue if the land belonged to them.

12. That the Respondent’s family did not sue. Rather the present Appellants sued instead.

…………………….R…………………….

From the above facts, it is obvious that any claimant from the Shoffuyi Ajani line will be guilty of standing by and doing nothing when the root of their title to the land in dispute was rudely shaken by the 1950 litigation. The present Respondent stands in the unenviable position that it was the act of his elder brother, Yesufu Atoloye and Ors. which sparked off the 1950 dispute. It will be an insult both to common-sense and simple logic to hold that the Respondent’s family did not know of the 1950 action and the 1953 W.A.C.A. decision. They knew, or ought to have known but they chose to stand by, to stand on the fence. Unfortunately that fence had some spikes on it in the form of acquiescence and standing by. It is unfortunate that the Court of Appeal failed to give the Abbott judgment of 1950 and W.A.C.A. judgment of 1953 their rightful signification of Estoppel by Standing By. In the face of this obvious error and misdirection, the judgment of the court below against the Appellants cannot be allowed to stand. It has to be reversed.

Another error arising from the failure of the courts below to give due weight to the Abbott judgment and the W.A.C.A. judgment is the fact that by their mistake the onus of proof was wholly misplaced. There is a long line of judgments beginning from Ekpo v. Ita 11 N.L.R. p.68 and Kodilinye v. Mbanefo Odu 2 W.A.C.A. 336 at p. 337 stating the well known and common place principle that the onus of proof is on the plaintiff seeking a declaration of title. He has the onus of satisfying the court that he is entitled on the evidence brought by him to the declaration he seeks. That is clear and well said and the cases-see Nwakafor v. Udegbe (1963) 1 All N.L.R. 104. The principle was also affirmed by the Privy Council in the Appeal of Udegbe (1963) 1 All N.L.R. 417. The principle and proposition it postulates are both undoubtedly correct and easy to comprehend. What is not so easy is to determine, in any given case, when that onus has been discharged. In the case on appeal from the W.A.C.A. judgment it was clear that the Appellants had been in possession of the land 10 years before the 1950 case. When the Appellants pleaded Ex. E, Suit 1/144/50-the Abbott’s judgment and the W.A.C.A. judgment, they had on their pleadings discharged the primary onus of proof. Section 145 of the Evidence Act then became operative, casting the onus on the Defendant/Respondent to show that the Appellants were not the owners of the land in dispute which the law presumes them to be owners thereof.

At p. 160 of the record of proceedings, the Court of Appeal observed:-

“I also agree with him (learned Counsel for the Respondent) that the Western State Court of Appeal misdirected itself by relying on Bucknor v. Ogunsesan (1960) W.R.N.L.R. 113 which decision at p. 144 is to the effect that a finding by a court of possession in favour of a party is a judgment in rem; a clearly erroneous statement of the law. It is on the basis of this misdirection that the Court of Appeal proceeded to rely on S. 145 of the Evidence Act and ended by casting the onus of proof of ownership in an action for a declaration of title on the defendant where possession was not established by evidence.”

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