⦿ CASE SUMMARY OF:
Musa Iyaji v. Sule Eyigebe (1987) – SC
by NSA PaulPipAr
– Res judicata;
(1987) NWLR (Pt. 61)523;
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
– Professor M. I. Jegede.
* FOR THE RESPONDENT
– Chief B. C. Oyibo.
⦿ FACT (as relating to the issues)
1. The Court of Appeal erred in law in ordering a retrial in the case when the Respondent had not sought such relief from the Court.
2. The Court of Appeal misdirected itself by considering only EXS. D1, D3 and D16 in deciding the issue of res judicata and thus came to a wrong conclusion, which was to the effect that res judicata could not operate in this case, The said wrong conclusion occasioned a miscarriage of justice.
⦿ HOLDING & RATIO DECIDENDI
1. ISSUE 1 WAS GRANTED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. Even though I hold that in the peculiar circumstances of this case an order for a retrial was wrong. it is certainly going too far to contend that an appellate Court cannot order a retrial unless same was specifically asked for. Every appellate Court has the right and in fact the duty and obligation to make any consequential order in the interest of justice and it is irrelevant that that particular order was not specifically asked for by either party to the appeal:Prince Yahaya Adigun & ors. v. Attorney-General of Oyo State & ors. (1987) 1 N. W.L.R. (Pt.53) 678 at p. 710: see also Chief Ebenezer Awote & ors. v. S. K. Owodunni & Anor. (No.2) (1987) 2 N.W.L.R. (Part 57) 367. Also the general powers of the Court below conferred on it by Section 16 of the Court of Appeal Act No. 43 of 1976 gave the Court of Appeal the jurisdiction to order the case on appeal to it “to be re-heard by a Court of competent jurisdiction”. The result is that the Court below had the jurisdiction to order a re-hearing or retrial but exercised that jurisdiction wrongly given the peculiar circumstances of this case, Ground 1 attacking the order for retrial thus succeeds but for an entirely different reason.
ii. The Appellant was a Defendant in the trial Court. If the Plaintiff/Respondent failed to prove his boundaries the proper order would be one for dismissal not a retrial. There ought to be an end to litigation. This case has gone on and on, bouncing up and down the Courts like a rubber hall.
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. Exhibit D16 was the very case sent back for a retrial. That retrial started as Ajaka Area Court Grade II Suit NO. 129/80 which has gone up to this Court on appeal. Now what about EX. D10. The only reason given by the Court below for rejecting it as grounding an estoppel per rem judicatam was that “on the face of the record the parties in the case (EX.D1) and the ones in the present case are not the same”. I am afraid that the above reason constitutes an undue and unnecessary limitation on the principle of res judicata. I take it that there is no dispute that the subject-matter in EX. D1 and the present case is the same the Ikare Anama land otherwise also called the Ajaka-Ate land. The issues are the same namely the ownership of the land in dispute.
ii. In this case there is no doubt that the parties to the present case and their late brothers who were parties to EX. D1 have the same kind of interest in the ownership of the land in dispute. Both parties in this case and in EX. D1 claim the land in dispute each through his forefathers and each set of claimants has the same fore-fathers. The present parties are, as it were, heirs to the parties in EX.D. There, therefore, exists that identity of interest which will make the judgment in EX.D1 conclusive for or against the parties in the present suit at least on the principle of qui Sentit Commodum Sentire debit et onus (He who derives the advantage ought also to bear the burden) for the one whose brother won in EX. D1 will surely enjoy the fruits of victory with his brother. The same will also apply to him whose brother lost. The present parties were therefore privies in blood and interest to the parties to EX. D1.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
In Ihenacho Nwaneri & Ors. v. Nnadikwe Oriuwa & Ors (1959) 4 F.S.C. 132, the Federal Supreme Court held that before the doctrine of estoppel per rem judicatam can operate, it must be shown that the parties, issues and subject-matter were the same in the previous case as those in the action in which the plea of res judicata is raised. – Oputa, JSC. Iyaji v. Eyigebe (1987)
Carl-Zeis-Stiftung v. Rayner & Keeler Ltd. (No.2) (1966) 2 All. E. R. 536 H. L. at p. 550, Lord Reid held that privies include all those who are privy to the parties, in blood or title or interest and estoppel per rem judicatam operates for, or against, not only parties but also those privies above mentioned.
⦿ RELATED CASE(S)
⦿ NOTABLE DICTA
An appellate Court should ordinarily confine itself to the grounds filed and canvassed before it and to issues that naturally arise out of those grounds. Any supposed Issue or Question For Determination which has no reference to any ground of appeal should not be considered by an appellate Court. – Oputa, JSC. Iyaji v. Eyigebe (1987)
Normally the first duty of any claimant of title to land is to show exactly and precisely a defined and identifiable area to which his claim relates, Akinala Baruwa v. Ogunshola (1938) 4 W.A.C.A. 159. If the claimant fails on this first hurdle no further questions need arise. His case will stand dismissed. – Oputa, JSC. Iyaji v. Eyigebe (1987)
Before the advent of English procedure and the filing of plans our “native” tribunals did adjudicate over land disputes and did settle them by going on the land itself with the contestants. This would, in most cases, be sufficient proof of the extent of the land claimed by the claimant and in dispute between the parties. To insist on more may defeat the dictates of justice. – Oputa, JSC. Iyaji v. Eyigebe (1987)
Every appellate Court has the right and in fact the duty and obligation to make any consequential order in the interest of justice and it is irrelevant that that particular order was not specifically asked for by either party to the appeal. – Oputa, JSC. Iyaji v. Eyigebe (1987)
The difficulty, if any, in this appeal was created by the Court of Appeal itself and for itself. The grounds of appeal to the Court of Appeal (at pp.91-92 of the record) raised only two major issues namely, the attitude of an appellate Court towards issues of fact and evaluation of evidence by a trial Court and whether or not EXS. D1, D2, D3 and D4 constituted an estoppel, against the Plaintiff, per rem judicatam. Instead of dealing squarely with these two issues, the Court below went into an extensive search for evidence tending to show the precise boundaries of the land in dispute when the appellant did not make “boundaries” an issue. – Oputa, JSC. Iyaji v. Eyigebe (1987)
Simply put the rule [Res Judicata] means that a final judgment already decided between the parties or their privies on the same question by a legally constituted Court having jurisdiction is conclusive between the parties and the issue cannot be raised again. Once the judgment is final it is conclusive proof in subsequent proceedings (other than an appeal or a retrial) between the same parties or their privies of the matter actually, decided. – Oputa, JSC. Iyaji v. Eyigebe (1987)