AJUWON & ORS. V. ADEOTI

• Pages: 408-426

AJUWON & ORS. V. ADEOTI

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408

AJUWON & ORS. V. ADEOTI

LATIFU AJUWON & ORS.

V

MADAM ALIMOTU ADEOTI

SUPREME COURT OF NIGERIA

OBASEKI,



J.S.C.

KAWU,



J.S.C.

BELGORE,



J.S.C.

NNAEMEKA-AGU, J.S.0

WALT,

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J.S.C.

30th March, 1990.

APPELLANTS

RESPONDENT

SUIT NO SC. 4/1987

Evidence - Res judicata - Conditions necessary

Courts - Customary Courts - Proceedings - Ascertainment of capacity in which parties

participated - How done

Customary Courts - Judgments - Uses of in a subsequent suit - Propriety of.

Practice and Procedure - Appeals - Raising new issues - Conditions to be satisfied - Order

6 Rule 5(1), Supreme Court Rules, 1985 - Applicability of - Action already in Plaintiffs

name - Grant of power of attorney to another to sue - Whether superfluous.

ISSUES:

1.

What condition must a party who intend to file and argue a ground of appeal not

contained in the original grounds already filed comply with?

2.

What procedure must be followed by an appellant desirous of raising an issue

not raised in the lower courts, and whether leave to raise such an issue must be

obtained?

3.

What conditions must be fulfilled for a plea of

res judicata

to succeed?

4.

How may an appellate court ascertain in what capacity a party initiated or

defended an action in a customary court?

5.

Whether it is desirable to put in evidence the whole proceedings in a previous

case before a customary court?

6.

Whether the Supreme Court can disturb the concurrent findings of fact of two

lower courts?

FACTS:

The Plaintiff sued the defendants at the Ibadan High Court claiming possession

of the shops and buildings erected by the defendants on the plaintiff's family land

without the knowledge and consent of the plaintiff's family and which erection was

in breach of a judgment which awarded the plaintiff's family declaration of title and

injunction against the defendant's family to the said parcel of land.

At the trial, the judgment given by the Ibadan Grade 'B' Customary Court

concerning the said parcel of land, and which was affirmed by the Ibadan City Grade

'A' Customary Court of Appeal, was tendered and admitted in evidence. The trial

Judge, on the application of the learned counsel to the defendants, went and

inspected the

Locus in

quo.

There was also the issue of a power of attorney which

the plaintiff gave to one Murana Adewuyi. However, the trial Judge did not consider

this issue because the plaintiff instituted and prosecuted the action in her own name.

409

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NIGERIAN SUPREME COURT CASES [1990] 1 N.S.C.C.

The trial Judge found that the 1st, 3rd and 5th defendants actually built on the land

in dispute and he entered judgment for the plaintiff against them. He ordered the

defendants to yield up possession of their respective buildings to the plaintiff.

The defendants appealed to the Court of Appeal, Ibadan Division, contending

that the trial Judge erred in ordering them to yield up possession of their respective 5

buildings erected on the disputed parcel of land, and the plaintiff cross-appealed

against the dismissal of her case in respect of the 2nd and 4th defendants. The Court

Appeal dismissed both the main appeal and the cross-appeal, and affirmed the

decision of the trial court. The defendants further appealed to the Supreme Court.

HELD:

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10

1. By the provisions of Order 8 Rule 2 (5) of the Supreme Court Rules, an appellant

is enabled to apply and argue a ground of appeal not contained in the original

grounds filed. It is a condition precedent that the points to be raised in the

additional ground must have been raised in either of the Courts below.

2. Where an appellant intends to raise for the first time a point or points which was 15

not raised in the Courts below, the provision of Order 6 Rule 5(1) of the Supreme

Court Rules, 1985 stipulates the Procedure to follow.

However, the issue being raised must be such that it would not require the

adduction or adducing of any additional evidence so that the other party would

not be taken by surprise. In other words, the issue must have been covered by 20

the proceedings before the Courts below. An issue not raised in the lower Court

requires leave before it can be caused and entertained in the appeal Court. In

the instant case, the issue raised by ground 6 of the grounds of appeal and issues

numbered 3 and 3 (a) in the appellants' brief as to whether this action should

have been an enforcement action which should have been enforced under the 25

Sheriffs and Civil Process Law and not by a fresh action, was not raised in the

Court below. It requires leave before it can be entertained.

3. For a plea of

res judicata

to succeed the following conditions must be satisfied:

a.

The parties in the previous action and the present action must be the same:

b.

the subject matter of litigation in the previous action must be the same as the 30

one in the present action:

c.

the claim in the previous action must be the same as the one in the present

action.

d.

the judgment in the previous case must be given by a court of competent

jurisdiction.

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e.

the decision must be final, in other words, it must have finally disposed of the

rights of the parties.

4. It is trite that in order to ascertain in what capacity a party initiates or defends an

action in the customary court, the whole proceedings should be looked at and

considered with a greater latitude and broad interpretation being placed on the 40

proceedings and the judgment in that Court. The rule here is not an inflexible

one enunciated to disable the court in its efforts to do substantial justice having

regard to the facts and circumstances involved in a particular case.

5. It is desirable to put in evidence the whole proceedings in a previous case before

a Customary Court so as to enable the trial Court to see whether the previous 45

case was prosecuted or defended in a representative capacity: since filing of

pleadings and the applicability of the Evidence Act are not part of the Customary

Court system, even where such a Court is presided over by a legal practitioner.

6. It is the policy of the Supreme Court not to disturb Concurrent Findings and

judgments of two or more Courts below save in special circumstances. This 50

Court had not been persuaded that any special circumstances have been made

out in the instant appeal.

[As to

The condition necessary to file and argue a ground of appeal not

contained in the original grounds of appeal,

see

Ejowhomu v. Edok-Eter Mandilas

Ltd.

[1986] N.S.C.C. [Vol.17 Pt.11], 1184.]