HomePublicationLand Judgments: In Rem or In Personam?

Land Judgments: In Rem or In Personam?

Date:

CASE TITLE: TAYLOR WOODROW (NIG) LTD & ORS v. AROMIRE & ANOR (2023) LPELR 59835 (CA)

JUDGMENT DATE:  20TH FEBRUARY, 2023

JUSTICES:

  • OBANDE FESTUS OGBUINYA, JCA
  • OBIETONBARA OWUPELE DANIEL-KALIO, JCA
  • FATIMA OMORO AKINBAMI, JCA

COURT DIVISION: LAGOS

PRACTICE AREA: JUDGMENT AND ORDER

FACTS:

By a deed, dated 14th July, 1945, late Kolapo Belugbade Savage bought a legion of parcels of land, situate in Iganmu, from Oladipo Moore. Mr. K.B. Savage leased part of it to the first appellant and Nigerian Properties Company Limited in 1949 and 1947 respectively. In 1971, the Nigerian Properties Company Limited, in liquidation, subleased its unexpired interest in its own parcel of land to the first appellant. In 1952, the Suenu Family granted a lease of a parcel of land to the Nigerian Properties Company Limited. Subsequently, the Nigerian Properties Company Limited subleased that parcel of land, which was leased to it by Suenu Family, to the first appellant. The three parcels of land, involving the first appellant, are known as No. 10 Abebe Village Road, Iganmu.

In 1972, the respondents’ predecessors-in-title sued Mr. K.B. Savage and others over the ownership of the land in Iganmu. It was registered as Suit No. LD/562/72. The suit was resolved in favour of the respondents’ predecessors-in-title. The Court’s decision in the action was upheld by the Court of Appeal on 8th November, 2004 in Appeal No. CA/L/81/2001. The decision was re-affirmed by the Supreme Court on 3rd April, 2009 in Appeal No. SC/54/2005. There were other suits that bordered on the disputed land.

​The appellants alleged that the portion of the first appellant’s land, leased to it by the Nigerian Properties Company Limited through the Suenu Family as head lessor, known as No. 10 Abebe Village Road, Iganmu, was not affected by the decision of the Supreme Court in SC/54/2005, hence neither it nor its predecessor-in-title was a party to it. The appellants alleged that in May, 2019, the respondents, through their agents, servants and hoodlums, wielding offensive weapons, invaded, encroached and barricaded that portion of land, leased to the first appellant by the Nigerian Properties Company Limited from Suenu Family, part of No. 10 Abebe Village Road, Iganmu, and prevented ingress and egress therefrom. The conduct/encroachment resulted to untold hardships on them. Sequel to these, the appellants beseeched the trial Court and separately tabled against the respondents’ declaratory reliefs, injunctive reliefs and damages in respect of part of No. 10 Abebe Village Road, Iganmu. The appellants filed, alongside with the originating process, motions ex-parte and on notice for injunctions.

​In reaction, the respondents joined issue with the appellants and denied liability by filing a joint statement of defence. Therein, the respondents claimed, inter alia, that No. 10 Abebe Village Road, Iganmu was part of the land affected by the Supreme Court decision in SC/54/2005 which was a judgment in rem. The respondents filed a notice of preliminary concurrently and prayed the Court to strike out or dismiss the appellants’ suit on grounds of estoppel per rem judicatam, estoppel by conduct, lack of locus standi and abuse of Court process. The appellants reacted to it by filing the necessary processes. The Court upheld the preliminary objection and dismissed the suit for being an abuse of Court process.

Dissatisfied, appellant appealed to the Court of Appeal.                                

ISSUES:

The appeal was determined upon consideration of the issues thus:

  1. Whether the learned trial Judge erred in law by dismissing the appellants’ Suit No LD/8671/LMW/2019 in limine on the ground that it is an attempt to relitigate the judgment of the Supreme Court in SC/54/2005 entered in favour of the respondent when the affidavit evidence clearly established that neither the appellants nor their predecessors in title (Suenu Family) were parties in SC/54/2005 which has led to a miscarriage of justice?
  2. Whether the learned trial Judge erred in law by his failure to make specific pronouncements on the main grounds upon which the respondent’s objection was predicated but chose the ancillary ground of abuse of Court process and whether the appellants Suit No LD/8671/LMW/2019 is an academic exercise has occasioned a miscarriage of justice?
  3. Whether from the peculiar facts and circumstances of this case, the failure of the learned trial Judge to recuse himself from adjudicating in this case is a breach of the rules of natural justice of nemo judex in causa sua and denial of the appellants’ right to a fair hearing?

COUNSEL SUBMISSIONS:

Learned counsel for the appellants submitted that the appellants’ predecessor-in-title, Suenu Family, were not parties to SC/54/2005. He referred to some paragraphs of the appellants’ pleading and counter-affidavit against the preliminary objection. He posited that the Supreme Court had set out the conditions to be fulfilled by a party relying on estoppel per rem judicatam. He relied on Agbogunleri v. Depo (2008) 1 SC (Pt. 2) 158; Toriola v. Williams (1982) LPELR – 3258 (SC. He persisted that the parties and subject matter in SC/54/2015 are different from those in the appellants’ suit. He cited Makun v. F.U.T., Minna (2011) LPELR – 15514 (SC). He asserted that the issue in the suit had not been litigated before any Court of competent jurisdiction. He referred to Balogun v. Adejobi (1995) 1 NWLR (Pt. 370) 131. He opined that the decision in SC/54/2005 cannot bind non-parties. He maintained that the appellants are not bound by the decision in SC/54/2005 since they were not privies to it. He relied on Arabio v. Kanga (1932) 1 WACA 253; Nwosu v. Uleaja (1990) 1 NWLR (Pt. 125) 188. He insisted that the trial Court wrongly dismissed the suit and the dismissal caused a miscarriage of justice on the appellants.

In response, respondents’ learned counsel contended that the decision in SC/54/2005 covered the subject matter of the suit as it is situate at Iganmu. He noted that the judgment in SC/54/2005 is binding on the appellants as it has not been set aside. He relied on Ogidi v. Okoli (2014) NGCA 41; Jimoh v. Akande (2009) 5 NWLR (Pt. 1135) 549. He described the decision as that of the Supreme Court which is final and binding on all persons and authorities. He cited Section 235 of the Constitution, as amended; Director, D.S.S. v. Agbakoba (1994) 6 NWLR (Pt. 351) 475.

​Respondents’ counsel further contended that the decision in SC/54/2005 is a judgment in rem which binds the whole world inclusive of the appellants and they cannot relitigate the issues in the decision. He referred to PDP v. INEC (2014) LPELR – 22892 (CA); Arugu v. R.S.I.E.C. (2010) LPELR – 9086 (CA). He added that the appellants’ predecessors-in-title had constructive notice of the suit leading to the decision in SC/54/2005, based on the publication of the processes in the Punch newspaper, and the appellants as their privies must be bound by the decision. He relied on Carlill v. Carbollic Smoke Ball Co. (1892) EWCA.

He asserted that the appellants were caught by the doctrine of standing by and estoppel per rem judicatam based on the notice and the parties, issues and subject matter in the suit being the same with those in SC/54/2005. He cited Synanx v. Kale (1969) LPELR – 25442 (SC); Kamalu v. Umunna (1997) SC 241/1991. He reasoned that the trial Court was right to have dismissed the suit because there must be an end to litigation and estoppel per rem judicatam ousts jurisdiction of Court. He referred to Mahmud v. Hausawa (2018) (2018) LPELR – 46073 (CA); Ajiboye v. Ishola (2006) 13 NWLR (Pt. 998) 628.

On points of law, learned senior counsel for the appellants posited that the decision in SC/54/2005 cannot bind non-parties to it. He relied on Uwazuruike v. A.G., Fed. (2013) LPELR – 20392 (SC); Kokoro-Owo v. Lagos State (2001) 11 NWLR (Pt. 723) 237. He postulated that the decision in SC/54/2005 was a judgment in personam, not judgment in rem, and could not bind non-parties to it. He cited Dike v. Nzeka (1986) NWLR (Pt. 34) 134; Noeker v. Executive Governor of Plateau State (2018) LPELR – 44350 (SC). He stated that the issue of constructive notice is one that can only be established by credible evidence at the trial and not one that can be decided under res judicata.

DECISION/HELD:

On the whole, the Court allowed the appeal and set aside the ruling of the trial Court. The suit was remitted to the Chief Judge of the High Court of Lagos State, for re-assignment to another Judge, other than S.A. Onigbanjo, J., for hearing on the merit.

RATIO

JUDGMENT AND ORDER – JUDGMENT IN REM/JUDGMENT IN PERSONAM: Whether judgment in a land matter is a judgment in rem or in personam; legal implication of same

“The nagging question, which begs for an answer is: whether a decision in a land matter is a judgment in rem or in personam? The answer is tucked away in the belly of case law. In NPA v. Panalpina World Transport Nig. Ltd. (1973) 5 SC 77 at 98, Coker, JSC, insightfully, declared:

The fact that jurisdiction over an action for declaration of title to land is confined to the lex forum rei sitae does not eo ipso make the action one in rem for the judgment in such an action binds only the parties to the action and does not decide the status or the title of the land as against persons generally, and does not bind those persons who are not parties to the action.

By sheer happenstance, in Oke v. Atoloye (supra), at 258, Oputa, JSC, concretized that proclamation, thusly:

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 in spite 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 sorts of estoppels, because a judgment in personam is necessarily a personal obligation binding on the parties or their privies.

See, also, Sosan v. Ademuyiwa (1986) 3 NWLR (Pt. 27) 241; Dike v. Nzeka (1986) 4 NWLR (Pt. 34) 144.

It stems from these magisterial pronouncements, which are warehoused in ex cathedra authorities that wear the deserved insignia of finality, that a Court decision on a land matter falls squarely within the firmament of judgment in personam (against a person). Such a decision orbits outside the four walls of judgment in rem (against a thing). It admits of no argument, deducible from the record, the touchstone of the appeal, that the proceedings, which meandered from the lower Court to the apex Court, that midwifed the decision in SC/54/2005, was a land matter. It stands to reason that the decision in SC/54/2005, its progeny, was/is a classic exemplification of a judgment in land matter. On this score, the law categorises it as a judgment in personam. It is, sometimes, classified as judgment in personam but ad rem, see Sosan v. Ademuyiwa (supra) at 252. Being a judgment in a land case, it cannot “be elevated to the dignified status of a judgment in rem”, see Oke v. Atoloye (supra) at 258, per Oputa, JSC. The chief characteristic of judgment in personam is that it is disrobed/drained of the attribute of contra mudum – binding on non-parties and the whole world. Per contra, a judgment in personam binds inter partes – only the parties to the action. The decision in SC/54/2005, which the law has crowned with the deserved toga of judgment in personam, binds parties inter se, id est, only the respondents and the appellants therein with their privies. Put starkly, its effervescence does not extend to non-parties to the suit which gave birth to it.” Per OGBUINYA, J.C.A.

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