AYINDE V. LABISI & ORS

• Pages: 119-122

AYINDE V. LABISI & ORS.

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119

AYINDE V. LABISI & ORS.

5

BABATUNDE AYINDE

V

10 LABISI AND OTHERS

SUPREME COURT OF NIGERIA

COKER,



J.S.C.

LEWIS,



J.S.C.

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MADARIKAN,

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J.S.C.

10th

April, 1970

APPELLANT

RESPONDENT

SUIT NO.SC/728/66

Practice and Procedure - Appeal - Appellant entitled to argue all the grounds of

appeal unless he abandons them or objection successfully raised to them.

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Equitible remedies - Estoppel - Res Judicata - Land in dispute not proved to be

the same as land in former suit - Whether plea of res judicata is sustainable.

ISSUES:

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1. Does an appellant have the right to pursue all his grounds of appeal?

2. Whether the plea of

res judicata

is sustainable in a land claim where the land

in dispute has not been proved to be the same as the land in the former suit.

FACTS:

The plaintiffs claim against the defendants was for title to ownership and re-

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covery of the plaintiffs land and an injunction to restrain the defendants from tres-

passing thereon. The trial president in the Grade B customary court dismissed the

plaintiff's claim. On appeal to the Grade A customary court, the plaintiff sought

and obtained leave to adduce fresh evidence namely a copy of the proceedings

and judgment in Suit No.4/53 together with a plan to show that both the plaintiff

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and defendants were privies to this previous action in respect of the same piece

of land. However, the president did not allow the plaintiff's counsel to argue all

the grounds of appeal, but upheld the plea of

res judicata

and gave judgment in

favour of the plaintiffs. On appeal to the High Court, by the defendants, it was held

that the Grade A Customary Court erred in up-holding the plea of

res judicata,

and

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the judgment was set aside. The plaintiff then appealed to the Supreme Court.

HELD:

1.

An Appellant is entitled to pursue all his grounds of appeal and unless he

abandons them or an objection is successfully raised to them, a court ought

not to prevent him from arguing them. In this case, as the plaintiff was deprived

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of the opportunity of arguing some of his grounds of appeal in the Grade A

customary court, this appeal must succeed.

2.

On a proper appraisal of the evidence, there was no proof that the land in

dispute in this case was the same as, or forms part of, the land in dispute in

suit No.

4

/

5

3 (Exhibits F and F 1). The High Court was therefore right in coming

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to the conclusion that the plea of

res judicata

could not be sustained.

Chief Williams

for the Appellants.

Respondents absent and not represented.