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  • Salami v. Sokefun
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  • 2004-05-17
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Salami v. Sokefun

ALHAJI RUFAI SALAMI

( For himself and on behalf of Ogunmolu Asanalasaro family of Iperu)

V

ALHAJI BURAIMOH SOKEFUN

OLUSEGUN SOKEFUN

YINUSA ODUJOKO

SALIU OSILAJA ( a.k.a. Oso Alada )

COURT OF APPEAL

( IBADAN DIVISION )

VICTOR A. OYELEYE OMAGE, JCA ( Presided and dissented )

FRANCIS FERODO TABAI, JCA

OLUFUNLOLA OYELOLA ADEKEYE, JCA ( Read the Lead Judgment )

CA/I/217/2000

MONDAY, 21ST JULY, 2003 

APPEAL - Ground of appeal - Whether all grounds need particulars

APPEAL - Preliminary objection - Raising same in brief of argument Procedure therefor - Non-compliance therewith - Effect

APPEAL - Whether can be determined only on issue formulated for determination or on grounds of appeal

COURT - Duty on while dealing with application for res judicata

ESTOPPEL - Estoppel by record inter partes or per rem judicatam - Kinds of

ESTOPPEL - Meaning and purport of

ESTOPPEL - Party relying on plea of estoppel per rem judicatam Requirement same must establish


ESTOPPEL - Plea of res judicata -When applies - Appropriate time to plead same - Duty on court while dealing with application therefor

ESTOPPEL - Res judicata or issue estoppel - Application of - Burden to establish that all pre-condition therefor exist - Who bears same

EVIDENCE - Affidavit evidence -  Matter tried thereon - Conflicting evidence relied on by parties therein on material issues such as the relationship of parties in the instant case and the previous suit - Need for court to call oral evidence to resolve same

JUDGMENT AND ORDERS - Judgments and decisions in a suit Bindingness of on parties and their privies

PRACTICE AND PROCEDURE - Matter tried on affidavit evidence Conflicting evidence relied on by parties therein on material issues such as the relationship of parties in the instant case and the previous suit - Need for court to call oral evidence to resolve same

PRACTICE AND PROCEDURE - Privy - Who is - Categories of privies WORDS AND PHRASES - ‘Estoppel’ - Meaning of

WORDS AND PHRASES - The term ‘parties’ - Whether include their privies

Issue:

Whether the learned trial Judge was not wrong in dismissing the appellant’s claim against the respondents on mere affidavit evidence of a plea of res judicata and estoppel without adducing oral evidence thereon going through the whole trial.

Facts:

The appellant who was plaintiff before the High Court of Justice

Ogun State - Sagamu Judicial Division, claimed for himself and on behalf of Ogunmolu Asanalasaro family of Iperu against the respondents who were defendants as follows:-

(i)             Declaration that the plaintiff’s family is entitled to the right of occupancy of Ipa village and farmland having boundaries with

(1) Soyindo homestead (2) Idotun homestead (3) Iperu

homestead and (4) Ilishan homestead by inheritance from one Ogunmolu alias Asanalasaro being the first settler on the said land.

(ii)           Perpetual injunction to restrain the defendants jointly, severally, their agents, servants, and/or privies from committing and/or doing anything whatsoever on the said farmland.

It was the appellant’s case that his progenitor Ogunmolu, otherwise referred to as Asanalasaro - a blacksmith by profession - was the first settler in Ipa village. The plaintiff/appellant gave a traditional history of the Ogunnolu’s family connection - with Ipa village - the land in dispute. The 1 st, 2nd and 4th respondents and defendants in their twenty-three paragraph joint statement of defence pleaded traditional history of their family’s connection to the land in dispute through one Ogunlade who was a warrior and a blacksmith. He was the defendants’ ancestor. He settled on the land and had children Soku, Onotu and Lojo. They traced that the plaintiff/ appellant’s family belong to the Soku branch of their family. The defendants/ respondents however pleaded the defence of res judicata and estoppel. The respondents brought an application dated the 8th of April, 1998 praying the court to dismiss the appellant’s claims on the grounds that:-

(1)           The appellant’s claim on the statement of claim is embarrassing, scandalous or vexatious and therefore an abuse of the processes of the court.

(2)           That the plaintiff/appellant is bound and caught by the doctrine of (a) res judicata (b) estoppel.

The respondents relied on the grounds deposed to in their affidavit in support. The appellant however opposed the application for the reasons that the defence of estoppel and res judicata cannot be sustained in that the parties are not the same and the reliefs sought in the two suits are different. The learned trial Judge in his considered ruling dismissed the appellant’s claim. Being dissatisfied with this ruling delivered on the 25th of November, 1999 dismissing his claims, the appellant has now appealed to the Court of Appeal.