KUDORO & ORS v. EXECUTIVE GOVERNOR OF OGUN STATE & ORS (2022)

KUDORO & ORS v. EXECUTIVE GOVERNOR OF OGUN STATE & ORS

(2022)LCN/16951(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, April 08, 2022

CA/IB/352/2013

Before Our Lordships:

Yargata Byenchit Nimpar Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Abba Bello Mohammed Justice of the Court of Appeal

Between

1. PRINCE LASISI KUDORO 2. PRINCE BASHIRU KUDORO (For Themselves And On Behalf Of The Kudoro Family) 3. PRINCE AYODEJI DABIRI 4. PRINCE MOSES SOFELA 5. ASHIMIYU ISIAKA (For Themselves And On Behalf Of The Olofin Of Isheri Chieftaincy Family) APPELANT(S)

And

1. EXECUTIVE GOVERNOR OF OGUN STATE 2. ATTORNEY GENERAL, OGUN STATE 3. MADAM JOSEPHINE MOMOH 4. WIHU INTERNATIONAL LIMITED 5. PETER ADEOLA WILLIAMS RESPONDENT(S)

RATIO

THE POSITION OF LAW ON THE TWO TYPES OF ESTOPPEL UNDER A DEFENCE OF RES JUDICATA

It is trite that there are two types of estoppel under a defence of res judicata. These are cause of action estoppel and issue estoppel. These two types of estoppel per rem judicata were explained by Uwais, JSC (as he then was) in ODJEVWEDJE & ANOR v ECHANOKPE (1987) LPELR-8049(SC), when he held at pages 20–21, para. B, thus:
There are two kinds of estoppel by judgment, namely (1) cause of action estoppel and (2) issue estoppel. The nature of these was explained by Diplock, LJ (as he then was) in Thoday v. Thoday, (1964) p. 181 at pp. 197-198 as follows –
“… cause of action estoppel, is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a Court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, i.e. judgment was given upon it, it is said to be merged in the judgment transit in rem judicatam. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam. This, is simply an application of the rule of public policy, … issue estoppel, is an extension of the same rule of public policy. There are many causes of action which can only be established by proving that two or more different conditions are fulfilled. Such causes of action involve as many separate issues, as there are conditions (which the plaintiff must fulfill to establish his case); and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action. If, in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a Court of competent jurisdiction; either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the Court has in the first litigation determined that it was not, or deny that it was fulfilled if the Court in the first litigation determined that it was.”
Also, in the case of ADONE & ORS. v IKEBUDU & ORS (2001) 14 NWLR (Pt. 733) 385, the Supreme Court, relying on its earlier decision in UKAEGBU & ORS. v UGOJI & ORS (1991) 6 NWLR (Pt. 196) 127, clearly expounded the distinction between cause of action estoppel and issue estoppel when the Court held as follows:
“The distinction between cause of action estoppels and issue estoppels is long standing and has been pronounced upon in several cases coming before this Court. Both are regard as specie of doctrine of Res judicata. In Ukaegbu & Ors Vs. Ugoji & Ors. (1991) 6 NWLR (pt. 196) 127 at 168; Akpata JSC, stated the distinction between the two thus: the classification of estoppels under estoppel by judgment is related to the purpose for which the judgment is used. If it is intended to be used to prevent another suit founded on the same cause of action as the original suit, the decision in the original action is said to constitute res judicata. If, on the other hand, the subsequent proceedings are based on different cause of action as in the instant case, issue estoppels can operate only to prevent certain issues which were decided in the original action from arising for further consideration by the Court.”
See also on this: AJIBOYE v ISHOLA (supra); FADIORA & ANOR v GBADEBO & ANOR (1978) 3 SC 219, per Idigbe, JSC; NIC & ANOR v FIRST CONTINENTAL INSURANCE CO. LTD. (2006) LPELR-5935(CA), per Denton-West, JCA at pages 9–10. paras. E–E; and TANKO & ANOR v MODI & ORS. (2018) LPELR-47228(CA), per Onyemenam, JCA at pages 16–21, paras. C–C. PER MOHAMMED, J.CA.

THE EFFECT OF THE FAILURE F A PARTY TO APPEAL AGAINST SPECIFIC FINDINGS OF FACT BY A TRIAL COURT

The effect of the failure by a party to appeal against specific findings of fact by a trial Court is that the said findings of fact is taken as acceptable to the party and therefore correct, binding and conclusive. See: COMPTROLLER GENERAL OF CUSTOMS & ORS v GUSAU (2017) LPELR-42081(SC), per Eko, JSC at pages 9–10, paras. B–B; OPARA v DOWEL SCHLUMBERGER (NIG.) LTD & ANOR (2006) LPELR-2746(SC), per Onnoghen, JSC (as he then was) at page 19, para. A; and ORIANZI v A.G. RIVERS STATE & ORS (2017) LPELR-41737(SC), per Eko, JSC at pages 72–73, paras. A–A. PER MOHAMMED, J.CA.

ABBA BELLO MOHAMMED, J.C.A. (Delivering the Leading Judgment): This is an appeal from the judgment of the High Court of Ogun State delivered on 3rd June, 2013 in Suit No. HCT/89/2004: PRINCE LASISI KUDORO & 4 ORS v EXECUTIVE GOVERNOR, OGUN STATE & 4 ORS.

In their 2nd Further Amended Statement of Claim at pages 498–504, the Appellants (as Plaintiffs) claimed the following reliefs against the Respondents herein (as Defendants):
1. A DECLARATION that the Plaintiffs are the persons entitled to the Statutory Right of Occupancy in respect of all the piece or parcel of land situate lying and being at Mapara Area, Isheri-Oke in the Ifo Local Government Area of Ogun State covered by Plan Number ADAKS/04/OG/2004 dated the 30th day of April, 2004.
2. N500,000.00 being damages for trespass committed and still being committed by the fourth to sixth Defendants on the said Plaintiffs’ land.
3. An Order of Perpetual Injunction restraining the first, second, and third Defendants from issuing any Certificate of Occupancy to the fourth Defendant in respect of all that piece or parcel of land situate lying and being at Mapara Area, Isheri-Oke in the Ifo Local Government Area of Ogun State.
4. An Order of Perpetual Injunction restraining the fourth to sixth Defendants, their servants, agents, privies or however described from further trespassing on the Plaintiffs’ land.

The 3rd–5th Respondents filed a 3rd Consequentially Amended Statement of Defence in which in paragraphs 9(a), (b)(i) – (v) at pages 810–811 of the Record of Appeal, they averred as follows:
9(a) The third Defendant avers that she purchased the land in dispute from the Ikumoworo Family in 1976 and equally re-purchased same from Ganiyu Eniadenwa Obatula (the Olofin of Isheri) acting on his own behalf and on behalf of Olofin Chieftaincy Family to which the Plaintiffs belong.
9(b) The said re-purchase was for the sum of N500,000 (Five Hundred Thousand Naira) which the third Defendant paid to the Oba Ganiyu Eniadenwa Obatula. Upon the payment in the Oba’s Palace, photographs were taken and a written Agreement dated the 18th day of June 1996 was executed. The third Defendant shall rely on both the written Agreement as well as the photographs at the Oba’s Palace. Third Defendant states that the Agreement dated the 18th day of June, 1996 included the Remand Home Reformatory School earlier referred to in paragraph 8q which was fenced round by the Defendant. The said school was not within the area that fell in Lagos State and neither was it the subject matter of Suit No. ID/1664/1999 which suit was between Princess Josephine Momoh V Oba Nurudeen Adekanbi and Others. The said suit was determined in July, 2009 in favour of the third Defendant who was the Claimant in the said suit. Third Defendant shall find on the Certified True Copy of the judgment in the said suit.
9(b)(i) Same 1996, the Olofin of Isheri, Oba Ganiyu Eniadenwa Obatula (The head of the Olofin Family) collected the sum of Five Hundred Thousand Naira as pleaded above from the third Defendant with a bottle of Gin, Kolanut and Alligator Pepper while he led the third Defendant into possession of the land in dispute at Isheri and in the presence of witnesses.
9(b)(ii) The evidential value of the re-purchase from Oba Ganiyu Obatula (the Olofin of Isheri and head of the Olofin Family) was established in the finding of Court (particularly) pages 16 and 17 in the ruling of the High Court in Suit Number HCT/38/86 dated the 24th day of June, 2002 and it further enjoyed judicial confirmation by the Court of Appeal in CA/I/23/2003 dated the 24th day of June, 2002.
9(b)(iii) The finding of the Court of Appeal affirming the finding of the High Court on the fact of re-purchase from the Olofin Family to which the Claimants belong is as contained on page 20 of the judgment of the Court of Appeal in Suit Number CA/I/23/2003 dated the 24th day of June, 2002.
9(b)(iv) Third to Fifth Defendants say there is no appeal to the Supreme Court upon judgment and affirmation of the finding of the Court of Appeal to date.
9(b)(v) Third to Fifth Defendants shall contend at the trial that the Claimants are ipso – facto estopped by records from denying the fact of re-purchase from Olofin Family to which the Claimants belong.

During trial, the 3rd–5th Respondents tendered the ruling of the High Court in Suit No. HCT/38/86 dated 24th June, 2002 and the judgment of the Court of Appeal in Appeal No. CA/I/23/2003 which were admitted in evidence as Exhibits DE2 and DE3, respectively.

At the end of the trial, the trial Court delivered a considered judgment on 3rd June, 2013 in which it upheld the 3rd–5th Respondents’ plea of estoppel and dismissed the Appellants’ suit for lack of merit. The judgment of the lower Court is at pages 898–905 of the Record.

Dissatisfied with the judgment of the lower Court, the Appellants brought this appeal vide a Notice of Appeal filed on 5th July, 2013 which is at pages 906–907 of the Record of Appeal. The Notice of Appeal was subsequently amended vide an Amended Notice of Appeal filed on 8th November, 2021 and deemed properly filed on the 19th of January, 2022. The Record of Appeal which was transmitted to this Court on 22nd October, 2013 was deemed properly transmitted on 19th November, 2015.

In pursuit of the appeal, the Appellant and the 3rd to 5th Respondents filed and exchanged briefs of argument which they subsequently amended. The 1st and 2nd Respondents who were duly served the appeal processes did not file any brief of argument. The extant briefs of argument of the parties are:
(i) The Appellants’ Amended Brief of Argument filed on the 8th of November, 2021 and settled by Omotayo Olatunbosun, Esq.
(ii) The Respondents’ Amended Brief of Argument filed on 1st December, 2021 and settled by Akinbinu Olumide Fidelis Esq
(iii) The Appellants’ Amended Reply Brief of Argument filed on 12th January, 2022.

All the aforementioned briefs of the parties were deemed properly filed and served on the 19th of January, 2022, the day the appeal was heard. On that day, the 1st and 2nd Respondents who were on notice, failed/refused to attend the hearing. Counsel for the Appellants and for the 3rd–5th Respondents adopted their respective briefs of argument.

From the four grounds of appeal, the Appellants distilled the following three issues for determination:
1. Whether the Appellants as Claimants at the lower Court tendered evidence of such quality and quantity to entitle them to the judgment of the lower Court as opposed to that of the Respondents. (GROUND 1)
2. Whether judgment in a contempt proceedings can be equated to a judgment in purely civil proceedings; and can such judgment qualify or constitute a bar i.e. ‘res judicata’ in subsequent civil proceedings (GROUND 2)
3. Whether the agreement of 18/6/96 put the identity of land in this appeal in issue and the agreement of 18/6/96 relates to the land in issue (GROUNDS 3 & 4)

On their part, the 3rd–5th Respondents raised the following sole issue for determination:
Whether, the trial Court rightly dismissed the Appellants’ Claim against the third to fifth Respondent.

From the issued raised by the parties, I am of the view that the three issues raised by the Appellants can conveniently be resolved within the sole issue raised by the 3rd–5th Respondents and a resolution of that sole issue can effectively and effectually determine this appeal. Consequently, I shall adopt the sole issue raised by the 3rd–5th Respondents in deciding this appeal and within that resolve the three issues raised by the Appellants.

APPELLANT’S SUBMISSIONS:
ISSUES 1 & 2:
Arguing the Appellant’s issues 1 and 2 together, learned Counsel for the Appellants, Omotayo Olatunbosun Esq, submitted that before the lower Court, the Appellants based their case on traditional history of first settlement which had been confirmed in several Court judgments from 1905 to date, including Suit No. HCT/38/86 and Appeal No. CA/I/11/1995 (Exhibits DE2 and DE3, respectively). He stated that Olofin Ogunfunminire settled on a fractional part of the land in dispute originally. The Olofin Ogunfunminire’s settlement is now divided into two, one part in Lagos State, and the other part in Ogun State, as a result of State creation. He stated that there is evidence on record that the Colonial Government acquired the land from the Appellants’ family in 1944 on which they built a REMAND HOME and due to state creation; the land became vested in the Lagos State Government.

Counsel stated that the Lagos State Government later trespassed on the other part of the Appellants’ land in Ogun State (verged Black) (Exhibit CE 2). The Appellants’ family sued Lagos State Government and the High Court entered a consent judgment between the parties on 2nd of April, 2003. Counsel further stated that the Government of Ogun State also acquired the area of the land verged red, but after due representation by the Appellants’ family, the Ogun State Government released part of the acquired land back to the Appellants’ family through a letter Ref. No. LG/10/49T/8 of 24th April, 1995 (Exhibit 24).

Learned Counsel submitted that the 3rd, 4th and 5th Respondents then went ahead to apply to the 1st and 2nd Respondents for the issuance of Certificate of Occupancy to them, but the Appellants’ family filed a “CAUTION” against the 3rd, 4th and 5th Respondents’ application at the Bureau of Lands. When the Bureau of Land, Ogun State, treated the “CAUTION” with levity, the Appellants instituted the action which gave rise to this appeal.

Learned Counsel for the Appellants contended that there are five ways to establish the right to a declaration of title to land and the Claimant needs to only establish one of them in order to succeed in his claim. He relied on IDUNDUN v OKUMAGBA (1976) NMLR 200; ATANDA v AJANI (1989) 3 NWLR (Pt. 1110) at 533 paras. A–D. He submitted that in Exhibits 28 and 29 tendered and admitted at the lower Court, the Respondents admitted the radical title of the Appellants’ family as the original owners of the land in dispute, but contended that the 3rd Respondent purchased the land from the Ijumoworo family in 1976. He pointed out that the Ijumoworo lost in two cases (Exhibits CE 29 and CE 28) respectively. Counsel stated that the 3rd Respondent then repurchased the land in dispute from the Appellants’ family and paid N500,000 to Oba Ganiyu Obatula and because there was no further appeal by the Appellants’ Family to the Supreme Court, the 3rd Respondent sold the land in dispute to the 4th and 5th Respondents respectively.

Counsel argued that the sales by the 3rd Respondent to the 4th and 5th Respondents were made during the pendency of the case in Court when she had no counter-claim in Court and title was never conferred on her. Counsel further argued that the Ikumoworo Family had laid claim to the Appellants’ family land which brought about the suit by the Appellants’ family against them and both the lower Court and the Court of Appeal had found in favour of the Appellants. Counsel submitted that the 3rd Respondent had trespassed on the land; the subject matter of the suit as a result of which a contempt proceeding was instituted against her. Counsel argued that the lower Court, notwithstanding its findings against the 3rd defendant (3rd Respondent) when it ruled that “Exhibit DE 2 which relates to contempt proceedings cannot confer title to land on the 3rd Defendant” went ahead to make a case for the 3rd Respondent. Referring to page 904 of the Record, learned Counsel submitted that the fact that the 3rd Respondent was not held liable for contempt cannot be a bar to the Appellants’ family bringing a civil suit against the Respondents on the issue of title/ownership.

On the issue of purchase receipt (or the re-purchase receipt), Counsel submitted that the lower Court merely glossed over it in its judgment at page 441 lines 10–17 of the Record, without properly resolving it. He pointed out that in page 438 (lines 10–12), Hon. Justice Augie (JCA) had agreed with the 6th Appellant that the lower Court did not need to address the extraneous matters it strayed into in the case because all that was required is proof beyond reasonable doubt.

The Appellants’ Counsel asked the question whether proof beyond reasonable doubt can relate to payment of money or N500,000.00. He argued that other issues were indeed extraneous to the matter of contempt and the Appellants’ case must be strictly narrowed down to the issue of contempt. Learned Counsel also pointed out that Hon. Justice John Inyang Okoro (JCA) had stated that it was impossible for the matter of sale of land to be resolved in a contempt proceeding, and that “to come to a reasonable conclusion on whether or not Oba Adetula actually sold the land in dispute to the 3rd Respondent, a plenary trial based on pleadings and cogent evidence would come into play.”

Flowing from the above, the Appellants’ Counsel submitted that where a suit based on pleadings and plenary trial subsequently takes place for the purpose of testing the 3rd Respondent’s claim of having re-purchased the land in dispute from Oba Adetula, such subsequent proceedings cannot be seen as re-litigating. He urged this Court to disregard/discountenance the Respondent’s contention and also the lower Court’s reliance on the statement of the 3rd Respondent that they purchased the land and paid the sum of N500,000 to Oba Adetula of which they executed an agreement dated 18th June, 1996. He pointed out that no receipt was issued to her and the document did not reflect the N500,000, as no amount was reflected in the document as having been paid and acknowledged. He added that the size of the land was also not defined and its identity was not certain. He relied on AMINU v OGUNYEBI (2004) 10 NWLR (Pt. 882) 457 at 479, paras. B–C. He stated that the essence of a purchase receipt was stated by Amaizu JCA as evidence that there was an agreement for sale and that the consideration for such sale was paid by the purchaser. He cited ONYEMAKE IBEMERE v FREDRICK UNAEGBU (1992) 4 NWLR (Pt. 235) 390, and argued that at best, the receipt is an agreement to share land.

Learned Counsel submitted that the lower Court had failed to avert its mind to the difference between sale of land under native law and custom and sale of land subject to the issue of receipt(s). He argued that for a sale under native law, the sale must be with the consent of the family and this should have been proved by writ of summons not by affidavit evidence in a contempt proceedings; and the transaction must take place before witnesses. He relied on ABOYADE COLE v S.B. FOLAMI 1 FSC 56. He stated that a case of title or ownership of the land could not have been made out on the incomplete photographs attached when affidavits were exchanged by the parties at the lower Court. Counsel submitted that the making and giving of receipt(s)/agreement are unknown to sale of land under native law and custom.

Learned Counsel for the Appellants also relied on AJANI v LADEPO (1986) 3 NWLR (Pt. 28) 276, to the effect that where two persons claim to be in possession of land, the law ascribes possession to the one with better title. He submitted that in the instant case, the 3rd Respondent must in a proper civil action prove her case by a counter-claim or in a fresh action and the lower Court should have seized the opportunity to evaluate the case and pronounce judgment one way or the other.

Learned Counsel submitted that there is no opportunity for a third party to challenge evidence given by a contemnor in a contempt proceeding. He pointed out that in his counter-affidavit in the contempt proceeding at the lower Court, Oba Obatula had deposed to the fact that the 3rd Respondent stormed his palace with thugs and referred to pictures attached. But there was a mix up as the said pictures he referred to were not the ones before the Court and it was apparent that there were different pictures and the pictures attached were not the only pictures. Counsel argued that a civil case would have given Oba Obatula the opportunity to realize the mix-up and put in the correct pictures and explain the two sets of pictures before the case was concluded.

Counsel further submitted that the document relied upon by the 3rd Respondent as receipt at page 805 of the Record did not show the 41 acres she claimed nor the amount paid and acknowledged and whatever was shown in the pictures to be carried by the 3rd Respondent to the King’s palace could have been a gift and not the N500,000.00. He argued that the picture does not show that it was money and it was merely speculative for the lower Court to have agreed that it was money. He contended that the lower Court having limited itself to the finding of the Court of Appeal on the alleged payment of N500,000.00 which finding had nothing to do with contempt proceedings as declared by them, it failed to address the contradictions in the evidence of the 3rd Respondent as against the documentary exhibits tendered.

He cited the case of IKEGBUNAM v ONWUBUYA (2007) ALL NWLR (Pt. 345) 379 at 389 paras A–B; which reiterated the principle that a trial Court must thoroughly examine the evidence before it and consider the totality of the evidence in order to know which has weight. He argued that the judgment of the lower Court in favour of the Respondents is against the weight of evidence.

ISSUE 3:
On the Appellants’ issue 3, learned Counsel submitted that even if it is assumed, though not conceded, that the land to which the agreement of 18/6/96 relates exists, it is different from the land in issue. He argued that it has been established that the 3rd Respondent used the same agreement of 18/6/96 in respect of another land situate, lying and being at Isheri-Oke Church, Isheri, Lagos State as against the land in issue which is situate in Ogun State. Counsel referred to the affidavit dated June 6th, 2000 in support of the 3rd Respondent’s Motion for Interlocutory Injunction dated June 5th, 2000 as well as the 3rd Respondent’s Further and Better Affidavit in support of Interlocutory Injunction dated August 25th, 1999 both in Suit No. ID/1664/99 between Princess Josephine Momoh v. Oba Ganiyu Eniadenwa Obatula & Ors, contained at pages 670 to 675 as well as 768 and 769 of the Record. He also pointed out that the agreement of 18/6/96 (Exhibit DE1) which is at page 776 of the Record did not make any reference to the location and size of the land.

Whilst conceding to the 3rd–5th Respondent’s contention that a customary land transaction need not be in writing, he argued that where parties to a contract have chosen a particular procedure of evidencing or conducting their transaction, they are bound by the dictates of the said procedure. He pointed out that in the agreement of 18/6/96, the 3rd Respondent and Oba Adetula had adopted a written form of evidencing or documenting their transaction in Exhibit DE1 and as such they are bound by the terms of their transaction. He cited OGUNDEPO & AOR. v OLUMESAN (2011) LPELR–1297 (SC); and UBN LTD. v SAX (NIG.) LTD (1994) LPELR–3390 (SC).

Learned Counsel contended that the authorities in OLALOYE v BALOGUN (1990) 5 NWLR (Pt. 148) 241; and UBA LTD. v PROFESSOR ALBER OJO OZIGI (1994) 4 NWLR (Pt. 333) 385, as well as Section 131(1) of the Evidence Act are in support of the rule that if there is any disagreement between the parties to a written agreement as to the terms of their agreement, the authoritative and legal source of information for the purpose of resolving the disagreement is the written agreement executed by the parties. He argued that the learned trial Judge was wrong to hold that there was no issue regarding the identity of the land as the land the subject matter of the contempt proceeding had obviated any controversy about the identity of the land, and that the Appellants’ argument over same is a misconception. Counsel submitted that the case of the Appellants is that the agreement of 18/6/96 could not have been related to the land both in the contempt proceedings and the instant case. He argued that a cursory look at the agreement points to this fact since the agreement did not define the land. He further argued that the fact that the land in dispute in the contempt proceedings in Suit No. HCT/38/86 is the same land in this suit does not mean that the land formed the subject of the agreement of 18/6/96.

On the whole, learned Counsel for the Appellants urged the Court to resolve the three issues in favour of the Appellants and allow the appeal.

3RD–5TH RESPONDENTS’ SUBMISSIONS ON THEIR SOLE ISSUE:
Learned Counsel for the 3rd–5th Respondents began his argument by pointing out that the case of the Respondents upon which the finding of the lower Court was predicated, centered upon an inference of issue estoppel, as could be inferred from pleadings and evidence before the Court at pages 810–811 of the Record. He submitted that the trial Court had relied on the ruling of the High Court in Suit No. HCT/38/8, dated 24th June, 2002 and the judgment of the Court of Appeal in Appeal No. CA/IB/23/03 which were tendered and admitted as Exhibits DE2 and DE3, respectively, to support the plea of issue estoppel, which culminated in the findings of the lower Court. He argued that the findings of their Lordships in both the High Court and the Court of Appeal were to the effect that there was an agreement between Oba Obatula and Princess Alice Momoh and that paragraph 6 of the Affidavit stated that Oba Obatula is the principal head and principal custodian of the Olofin stool and landed properties and that he collected the sum of N500,000 and other items before Princess Momoh was led into possession, and that copies of the photographs taken at Olofin’s Palace and at the site were attached to Exhibits “A” and “A”.

Counsel pointed out that the trial Judge had also held at page 410 paragraph 3 of the Record that the Appellants failed to satisfactorily convince the Court that Oba Obatula did not receive a monetary consideration from the sixth Respondent or that Oba Obatula was not the principal custodian of the Olofin stool and landed property to be able to transfer part of the family land to the sixth Respondent. He submitted that the concurrent findings of the trial Court and the Court of Appeal in Exhibits DE2 and DE3 were in respect of the re-purchase of the land in dispute by the Respondents from the Appellants’ family. He argued that the same issue of re-purchase was what came up for determination in the present case wherein the trial Judge made a finding of issue estoppel in favour of the Respondents.

Citing and relying on the case of OWELLE ROCHAS ANAYO OKOROCHA v PEOPLES DEMOCRATIC PARTY (2014) 1 SCNJ 325 at 448, where the principle of issue estoppel was restated, as well as the cases of IKENI v EMAFO (2001) 10 NWLR (Pt. 270) 1; and HON. EMMANUEL BWACHA v HON. JOEL DANLAMI IKENYA & ORS (2011) 1 SCNJ 255 at 273, where the conditions precedent to the invocation of the principle of issue estoppel were restated. Counsel submitted that considering the reliefs in the two suits numbers HCT/89/2004 and HCT/38/86, the parties and issues in both cases are the same. He added that the land on appeal in this suit is the same land upon which the Respondent was alleged to have been contemptuous of the judgment in Suit Number HCT/38/86 being privies in title to the judgment debtors i.e. Chief E. S. B. Wilkey & Ors. in the said suit and for which both the Court of first instance and this Court have absolved the Respondent of any such act of contempt. He submitted that this Court in Appeal Number CA/IB/23/03 tacitly affirmed the possessory right of the 3rd Respondent to the parcel of land subject matter of this appeal.

Learned Counsel further submitted that it is immaterial that the finding of this Court emanated from a contempt proceedings of quasi-criminal in nature, as it is the relief sought under the said contempt proceeding that really matters. He relied on the case of EZEWUIHE IKOKU & ORS. v REUBEN EKEUKWU & ORS (1995) LPELR-1481(SC), per Ogundare, JSC.

Learned Counsel posited that the Appellants had the window of seeking for declaration of title, damages for trespass and injunction against the Respondents but rather chose a contempt proceeding and in reaction to this, the Respondents put the issue of re-purchase as her defence which was properly evaluated and a fact-finding was made thereon at pages 438–439 of the Record. Counsel cited the case of AKHIWU v PRINCIPAL LOTHRIES OFFICER, MID-WEST STATE (1972) 1 All NLR 229, where it was held that where a party has adopted a procedure by consent, he will not be heard on appeal that the procedure he adopted is prejudicial to him. Counsel finally submitted that the fact of re-purchase was established and pronounced upon and the Appellants cannot re-litigate that issue. He urged the Court to so hold and dismiss this appeal for lack of merit.

APPELLANTS’ REPLY:
In the Appellants’ Reply Brief, it was argued that contrary to the submission in paragraphs 4.14 of the 3rd–5th Respondents’ Amended Brief of Argument, the nature of the proceedings that culminated in the judgment of this Court in CA/IB/23/2003 copiously quoted by the 3rd–5th Respondents, is contempt proceedings fought on affidavit evidence. He argued that the lower Court failed to conduct a plenary trial where testimonies of witnesses would be heard in the manner that would enable the Court to decide on the issue of title to land, and as such, the decision in the contempt proceeding cannot form the basis of estoppel per rem judicata in a matter for declaration of title to land. He cited the case of NWOGO v NJOKU (1990) 3 NWLR (Pt. 14) 570 at 581, para A; OGUN v AKINYELU (1999) 10 NWLR (Pt. 624) 671 at 689, paras. G–H; and EYE v QUDUS (2001) 15 NWLR (Pt. 737) 587 at 613, Paras. D–E, to the effect that the onus of proving the identity of land in dispute is on the Plaintiff and the area/size and identity of the land were yet to be determined with definitive certainty, despite the purported payment sum of N500,000. He argued that the lower Court should not have determined the rights of the parties as to the ownership in a contempt proceeding.

Counsel cited ADENIJI v ONAGORUWA (2000) 1 NWLR (Pt. 639) 1 at 21, para. H, to the effect that a purchase receipt is in law only evidence of payment but does not confer title. He relied on HARUNA v ASHIRU (1999) NWLR (Pt. 612) 579 at 588, paras. F–G; and IKENI v EFANO (2001) 10 NWLR (Pt. 720) 1 at 15, para. D, Ayoola, JSC, on issue estoppel and submitted that the issue of certainty as to size/plots/acres did not come up at all in the contempt proceedings the only issue that came up was the issue of payment of a consideration of N500.000 which could not have come up directly but for the fact that it was used as a defence to escape criminal liability under contempt. He argued that the issue of ownership/title/size was not distinctly determined as held by the Court in OWELLE ROCHAS ANAYO OKOROCHA v PDP (supra).

Learned Counsel submitted that contrary to the argument of the 3rd–5th Respondents, the conditions precedent to invoking the rule of issue estoppel were not met by the Respondents as the issues are not the same and are yet to be resolved, and the case of ILODIBIA v NIGERIA CEMENT CO. LTD (supra), to the effect that a party that has adopted a procedure by consent will not be heard on appeal that the procedure is prejudicial to him, is not applicable to this case as there was no consent between the parties at the lower Court to determine the issue of ownership/size in a contempt proceeding.

RESOLUTION OF THE SOLE ISSUE:
Whether the trial Court rightly dismissed the Appellants’ Claim against the Respondents
As I stated earlier, I shall resolve this sole issue of whether the trial Court rightly dismissed the Appellant’s claim against the 3rd–5th Respondents by examining within it the three issues raised by the Appellant in this appeal. In so doing, I intend to start with the second issue raised in the Appellant’s Brief of Argument which is whether the judgment in a contempt proceedings can be equated with judgment in a purely civil proceedings and whether such judgment can qualify or constitute a bar in subsequent civil proceedings. I am considering that issue first for the simple reason that if the issue is resolved in the affirmative, it automatically extinguishes the other two issues as to whether the identity of the land in dispute was in question and whether the Appellants have led evidence of such a quality and quantity to entitle them to the judgment of the lower Court.

In the instant appeal, the essential contention of the Appellants as earlier shown above, is that there cannot arise from the judgment in contempt proceedings a defence of res judicata in relation to their civil suit which they instituted before the trial Court, and the trial Court was wrong to have sustained such a defence from the 3rd–5th Respondents and dismissed their claim. The 3rd–5th Respondents on the other hand, contended that an issue estoppel had arisen from the judgment in the contempt proceedings which was affirmed on appeal by this Court, and the trial Court was therefore right to have sustained the 3rd–5th Respondents’ defence of issue estoppel and dismissed the Appellants’ suit.

“Res judicata” means a thing decided. It means a matter or issue that had already been definitely settled by a judicial decision. The principle connotes that where in a final judicial decision a competent Court has pronounced on the merit or demerit of a cause of action or issue, the parties are or any of them is estopped from re-litigating the same cause of action or issue in a fresh suit. In other words, where a cause of action or an issue has been determined on the merit in a previous suit, the parties are as a matter of public policy estopped from re-litigating same in a fresh suit, so as to ensure an end to litigation in the interest of the common good. See: AJIBOYE v ISHOLA (2006) LPELR-301(SC), per Onnoghen, JSC (as he then was) at pages 15–16, para. F; DAUDA & ANOR v A.G. LAGOS STATE & ORS (2011) LPELR-931(SC), per Rhodes-Vivour, JSC at page 28 para. A; DANIEL TAYAR TRANS. ENT. (NIG.) CO. LTD. v BUSARI & ANOR (2011) LPELR-923(SC), per Onnoghen, JSC at pages 22–23, para. D; and BAMGBEGBIN & ORS v ORIARE & ORS (2009) LPELR-733(SC), per Tobi, JSC at page 43 para. B.

It is trite that there are two types of estoppel under a defence of res judicata. These are cause of action estoppel and issue estoppel. These two types of estoppel per rem judicata were explained by Uwais, JSC (as he then was) in ODJEVWEDJE & ANOR v ECHANOKPE (1987) LPELR-8049(SC), when he held at pages 20–21, para. B, thus:
There are two kinds of estoppel by judgment, namely (1) cause of action estoppel and (2) issue estoppel. The nature of these was explained by Diplock, LJ (as he then was) in Thoday v. Thoday, (1964) p. 181 at pp. 197-198 as follows –
“… cause of action estoppel, is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a Court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, i.e. judgment was given upon it, it is said to be merged in the judgment transit in rem judicatam. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam. This, is simply an application of the rule of public policy, … issue estoppel, is an extension of the same rule of public policy. There are many causes of action which can only be established by proving that two or more different conditions are fulfilled. Such causes of action involve as many separate issues, as there are conditions (which the plaintiff must fulfill to establish his case); and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action. If, in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a Court of competent jurisdiction; either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the Court has in the first litigation determined that it was not, or deny that it was fulfilled if the Court in the first litigation determined that it was.”
Also, in the case of ADONE & ORS. v IKEBUDU & ORS (2001) 14 NWLR (Pt. 733) 385, the Supreme Court, relying on its earlier decision in UKAEGBU & ORS. v UGOJI & ORS (1991) 6 NWLR (Pt. 196) 127, clearly expounded the distinction between cause of action estoppel and issue estoppel when the Court held as follows:
“The distinction between cause of action estoppels and issue estoppels is long standing and has been pronounced upon in several cases coming before this Court. Both are regard as specie of doctrine of Res judicata. In Ukaegbu & amp; Ors Vs. Ugoji & amp; Ors. (1991) 6 NWLR (pt. 196) 127 at 168; Akpata JSC, stated the distinction between the two thus: the classification of estoppels under estoppel by judgment is related to the purpose for which the judgment is used. If it is intended to be used to prevent another suit founded on the same cause of action as the original suit, the decision in the original action is said to constitute res judicata. If, on the other hand, the subsequent proceedings are based on different cause of action as in the instant case, issue estoppels can operate only to prevent certain issues which were decided in the original action from arising for further consideration by the Court.”
See also on this: AJIBOYE v ISHOLA (supra); FADIORA & ANOR v GBADEBO & ANOR (1978) 3 SC 219, per Idigbe, JSC; NIC & ANOR v FIRST CONTINENTAL INSURANCE CO. LTD. (2006) LPELR-5935(CA), per Denton-West, JCA at pages 9–10. paras. E–E; and TANKO & ANOR v MODI & ORS. (2018) LPELR-47228(CA), per Onyemenam, JCA at pages 16–21, paras. C–C.

From the above, it is instructive that an issue estoppel can arise from suits of different causes of action. Once the issue in the present suit is the same issue which has been determined in a final decision in the previous suit, a defence of issue estoppel can be competently and validly raised in that subsequent suit, irrespective of the fact that the two suits have different causes of action. Hence, the argument of the Appellants herein, that the judgment of the High Court in the contempt proceeding in Exhibit DE2 which was affirmed by the Court of Appeal in Exhibit DE3 cannot constitute res judicata in subsequent civil proceedings, is, with respect, a misplaced argument, especially when the type of estoppel sought to be invoked is an issue estoppel and not a cause of action estoppel.
The conditions for the application of issue estoppel have been severally spelt out by the appellate Courts and those conditions do not include similarity of cause of action in the two cases in respect of which the issue estoppel is sought to be invoked. In AJIBOYE v ISHOLA (supra), the Apex Court, per Onnoghen, JSC (as he then was) restated those conditions when he held that:
“The conditions for the application of issue estoppel are that: (a) the same question was decided in both proceedings; (b) the judicial decision said to create the estoppel is final; and (c) the parties to the judicial decision or their privies were the same as the parties or their privies to the proceedings in which the estoppel is raised.”
To underscore the position of the law that issue estoppel can arise between cases of different causes of action the learned jurist then proceeded to state that:
“That being the case, it is obvious that an issue estoppel may arise where a plea of res judicata could not be established because the causes of action are not the same.”

From the aforementioned, it is clear that irrespective of the fact that the judgment of the High Court in Exhibit DE2 which was affirmed by the judgment of the Court of Appeal in Exhibit DE3 arose from a cause of action relating to contempt proceedings, an issue decided therein can be competently invoked as an issue estoppel where the same issue is raised in a subsequent civil suit. I therefore have no hesitation in discountenancing this argument/contention of the Appellants which they made their issue two in this appeal.

In the instant appeal, the record shows that the Respondents have in response to the Appellants’ suit before the trial Court, raised in paragraphs 9(a), (b)(i) – (v) of their 3rd Consequentially Amended Statement of Defence (which I have reproduced in the earlier part of this judgment) raised an issue estoppel, contending that in Exhibit DE2, the ruling of the High Court of 24th June, 2002 delivered in Suit No. HCT/38/86 which they tendered, the High Court had made a finding that the 3rd Defendant (3rd Respondent herein) had re-purchased the disputed land from Oba Obatula, the Head of the Obatula Family to which the Appellants belong, and that this finding was affirmed in Exhibit DE3, the judgment of the Court of Appeal of 30th April, 2007 delivered in Appeal No. CA/I/23/03 which they also tendered before the trial Court.

My examination of the Record of Appeal shows that the Appellants have raised the same arguments which they are raising in this appeal before the trial Court. They have argued that the ruling of the High Court in Exhibit DE2 which was affirmed by the Court of Appeal in its judgment in Exhibit DE3 arose from a contempt proceeding and that the 3rd Respondent herein had sold the land to the 4th Respondent during the pendency of this case before the trial Court. But upon what, in my respectful view, is a thorough consideration of the contentions of the parties, the learned trial Judge had in his judgment held at pages 904–905 of the Record of Appeal as follows:
“All the bundle of documents tendered by the claimants to show that the vast expanse of land in respect of which the land in dispute forms a part of belonging to the Olofin Chieftaincy Family is not being contested by the 3rd Defendant who in any event sold the land in dispute to the 4th Defendant. The case of the 3rd Defendant was that she re-purchased the land in dispute from the Claimants’ forebear Oba Obatula who is now dead. I agree with the submission of the Claimants’ Counsel that the document tendered by the defence as Exhibit DE1 has no precise description of the land in dispute. The Counsel for the 3rd–5th Defendants had argued that purchase receipt is not of prime importance in purchase of land under customary law. What is required is evidence of purchase and delivery of possession by the vendor in the presence of witnesses. Claimants’ Counsel had argued at length that the ruling in Exhibit DE2 which relates to contempt proceedings cannot confer title to land on the 3rd Defendant. I am in agreement with this submission. This submission however missed entirely the position taken by the 3rd Defendant in this case. The position of the 3rd Defendant in this case is that though the said ruling relates to contempt proceedings between the Claimants’ Family and the 3rd Defendant, the finding of fact by the Court in that ruling that the land in dispute was purchased by the 3rd Defendant from Claimants’ Family had not been impeached. This finding of fact was upheld by the Court of Appeal in respect of the appeal lodged against the ruling. In the face of this finding, can the Claimants be allowed to re-litigate this fact? This is more so when CW2 agreed under cross-examination that it was the same land which was the subject matter of the contempt proceedings that is now in dispute in this case. It is obvious in this case that the Court of Appeal judgment tendered by the Claimants as Exhibit CE28 was the outcome of the appeal lodged against the decision of the Court in Suit No. HCT/38/86. The ruling in the contempt proceeding also relate to the attempt by the Claimants’ family to have the Respondents therein punished (which included the 3rd Defendant in this case) for contempt of the decision of the Court in HCT/38/86. Apart from the fact that the Respondents were not held liable for the contempt, the Court made a finding of fact that the 3rd Defendant paid for land to the Claimants Family as contended by her in that proceeding. This finding of fact is binding on the Claimants’ Family. Pls. see INEC VS. OSHIOMOLE [2008] VOL 48 WRN PG 24 AT 104 lines 30-35. The finding of the Court on payment of money by the 3rd Defendant for the land not having been further appealed to the Supreme Court is deemed admitted by the Claimants Family. Pls. see CALABAR C.C.T. & SOC. LTD. VS. EKPO [2008] VOL. 25 PG 1 @ 25 lines 30-35. It is for this reason that the 3rd–5th Defendants contend that the Claimants cannot litigate in this case and say the land was not sold to the 3rd Defendant. All arguments of the Claimants’ Counsel that 3rd Defendant sold the land during the pendency of this case cannot in any way avail the Claimants because they have accepted the finding of the Court that 3rd Defendant paid money to their family in respect of the land in her possession.
The issue formulated above is resolved against the Claimants that they are bound by the finding of the Court that 3rd Defendant had paid their family for the land in dispute and so they cannot re-litigate this issue by the present suit as they sought to do by this action. The issues formulated by the Claimants’ Counsel that the ruling in the contempt proceeding cannot confer title on the 3rd Defendant is not contested but that 3rd Defendant having been found by the Court in the proceeding to have paid money to the Claimants’ family for the land in dispute is entitled to the benefit of that finding which is binding on the Claimants.”

I have examined Exhibits DE2 and DE3. In Exhibit DE2, the ruling in the Contempt Proceedings in Suit No. HCT/38/86, delivered by the High Court of Ogun State, Ota Division on the 24th of June, 2002 (contained at pages 394–419 of the Record), the said High Court had held at pages 407–408 that:
“The second document I wish to consider is the Agreement made between Oba Ganiyu Eniadenwa Obatula and Princess Alice Momoh. It is dated 18th June 1996. It is Exhibit ‘B’ attached to the counter affidavit of the 6th respondent. Paragraph 6 of the counter affidavit states that Oba Obatula as principal head and the principal custodian of the Olofin Stool and landed property, collected the sum of N500,000.00 together with other items before the 6th respondent was led into possession of the land she presently occupy at Isheri and over which the applicants are now interfering with her peaceable possession. Copies of photographs taken at the Olofin’s Palace and at the site were attached as Exhibit ‘A’ and ‘A1’.
Oba Ganiyu Obatula swore that he is not the head of the Olofin Chieftaincy Family and that Prince (Engineer) Ayodeji Dabiri had been the head of the family from 1991 to date. But Prince Ayodeji Dabiri was the 4th PW in Suit No. HCT/38/96. He said at page 19 of the judgment that he was a member of the Olofin Chieftaincy Family and was the Acting Secretary of the Family.”

At the same page, the learned trial Judge further held that:
“I have no hesitation to conclude that the whole truth has not been stated in the further and better affidavit of Oba Obatula for the following reasons: (1) The photographs do not show those in them as being chased by anyone. (2) Someone going to the Oba’s Palace with evil intentions is not likely to take along a photographer to record the events. (3) The photographs show people appearing therein in relaxed mood and even smiling. (4) In fact those in Exhibit ‘A’ even posed for the photographer and it shows the 6th respondent closely beside the Oba. (5) The scene in Exhibit ‘A1’ shows it was a Palace with the Oba and 6th respondent sitted (sic), three other men and two children also appearing all in a peaceful atmosphere. (6) The scene in Exhibit ‘A1’ shows the spot as a vacant land. (7) The Oba did not deny writing Exhibit ‘B’ attached to the counter affidavit of the 6th respondent sworn to on 14th June, 2001.”

Then at page 410 of the Record, the learned trial judge concluded that:
“On the whole, the applicants have not satisfactorily convinced this Court that Oba Obatula did not receive a monetary consideration from the 6th respondent or that Oba Obatula was not the principal custodian of the Olofin Stool and landed property to be able to transfer part of the family land to the 6th respondent.”

Upon appeal against the above ruling in Exhibit DE2, the Court of Appeal, per Augie, JCA (as he then was) had in Exhibit DE3, its judgment delivered on 30th April, 2007 in CA/I/23/03 which is at pages 420–442 of the Record, held at page 438 as follows:
“The 6th Respondent in particular appears to have punctured holes in the Appellants’ case against the Respondents, when she protested vehemently and presented evidence to show that she derived her title to the land she is occupying from both Ikumoworo Family of Isheri and the 1st Appellant, who denied her claim but with the overwhelming evidence against him, it is not surprising that the lower Court did not believe him, rather it believed her. The documentary evidence of the Agreement between the 1st Appellant and 6th Respondent and the photographs – Exhibits ‘A’ and ‘A1’ was enough to knock the bottom off the case of the Appellants.”

Then at page 439 of the Record, this Court affirmed the above finding in Exhibit DE2 when it held that:
“In this case, there is no reason at all to interfere with the findings and conclusions of the learned trial Judge. In my view, they cannot be faulted. His findings on the photographs exhibited by the 6th Respondent are quite illustrative and capture the utter lack of merit in the Appellants’ case. Exhibit ‘A’ does not in any way portray the situation described by the 1st Appellant in paragraph 9 of the Further and Better Affidavit (No.2) that the photograph was “taken at the instance of the 6th Respondent and without any consent when she stormed my palace with her thugs”. Exhibit ‘A’ certainly does not look like anyone stormed anywhere and there is no picture of any thugs, as the learned trial Judge observed, the photographs show people in a relaxed mood, smiling with the 6th Respondent besides the 1st Appellant.”

In his concurring judgment, Okoro, JCA (as he then was) also held that page 441 of the Record that:
“I pitch my tent with the learned trial Judge when he held on pp. 187–191 of the Records as follows:
On the whole, the Appellants have not satisfactorily convinced this Court that Oba Obatula (first Appellant) did not receive any monetary consideration from the sixth Respondent or that Oba Obatula was not the principal custodian of the Olofin stool and landed property to be able to transfer part of the Family land to the sixth Respondent.
…With the several defects, shortcomings and doubts in the averments in support, I have no hesitation to conclude that the allegations against the Respondents are very far from being proved. The facts definitely fell short from supporting the allegations. The reliefs sought for to commit the Respondents to prison fails and is dismissed.”

As rightly stated by the 3rd to 5th Respondents, the above concurrent findings of fact contained in the ruling of the Ogun State High Court (Exhibit DE2), and the judgment of this Court (Exhibit DE3), have not been appealed to the Supreme Court by the Appellants herein. Rather what the Appellants did was to file a fresh action in Suit No. HCT/89/2004 before the Ogun State High Court claiming for a declaration that they are entitled to Statutory Right of Occupancy, damages for trespass and perpetual injunction in respect of the same land for which the above unappealed concurrent findings in Exhibits DE2 and DE3 have been made.

The Appellants have in their third issue tried to raise arguments about whether the agreement of 18/6/96 tendered as Exhibit B before the High Court had put the identity of the land in issue. But as rightly observed by the learned trial Judge in his ruling at page 904 of the Record, CW2, Prince Bashiru Kudoro who is the 2nd Appellant herein, had under cross-examination affirmed that the land which was the subject of the contempt proceedings is the same land in dispute in the instant suit. Specifically, at page 891 of the Record, CW2 had, under cross-examination by the learned Counsel for the 3rd–5th Defendants (the 3rd–5th Respondents herein), stated as follows:
“My family litigated on the land in dispute which led to the judgment in Suit No. HCT/38/86 which judgment is exhibit CE29 tendered by us in this case. Judgment was delivered in that suit in 1994. Based on that judgment, my family initiated contempt proceedings in year 2000 against the 3rd Defendant. Our ground in that suit was that 3rd Defendant entered unto our land illegally. Our suit was dismissed in the year 2002. I can identify the Ruling.”

Instructively, the said ruling in the contempt proceedings was tendered by the learned Counsel for the 3rd–5th Respondents through the said CW2 and admitted without objection as Exhibit DE2. (See page 891 of the Record). In consequence, the Appellants’ issue three relating to identity of the land in dispute is of no moment, since their witness (CW2), who is also the 2nd Appellant herein, had clearly stated that it was the same land in the contempt proceedings that was sought to be re-litigated upon in this action by the Appellants before the trial Court.

The effect of the failure by a party to appeal against specific findings of fact by a trial Court is that the said findings of fact is taken as acceptable to the party and therefore correct, binding and conclusive. See: COMPTROLLER GENERAL OF CUSTOMS & ORS v GUSAU (2017) LPELR-42081(SC), per Eko, JSC at pages 9–10, paras. B–B; OPARA v DOWEL SCHLUMBERGER (NIG.) LTD & ANOR (2006) LPELR-2746(SC), per Onnoghen, JSC (as he then was) at page 19, para. A; and ORIANZI v A.G. RIVERS STATE & ORS (2017) LPELR-41737(SC), per Eko, JSC at pages 72–73, paras. A–A.

As a rule of evidence, an issue estoppel forecloses the reopening of a finding by a Court on an issue, whether be it of fact, law or mixed law and fact.

In the instant case, it is not only a finding of fact by the trial Court, but a concurrent finding of fact by both the trial Court and the Court of Appeal (this Court). Stating its attitude to concurrent findings of fact, the Supreme Court, per Oguntade, JSC held in DAGACI OF DERE & ORS v DAGACI OF EBWA & ORS (2006) LPELR-911(SC), as follows:
“In this Court, I am confronted by the concurrent findings of fact by the two Courts below. In Enang v. Adu (1981) 11-12 SC 25 at pp. 41-42, this Court per Nnamani, JSC said concerning concurrent findings of fact: “The task of the appellants on this ground of appeal is made more difficult by the fact that there are before us concurrent findings of fact by both the learned trial Chief Judge and the learned Justices of the Court of Appeal. It is settled law that such concurrent findings where there is sufficient evidence to support them should not be disturbed. Kofi v. Kofi 1 WACA 284.” This rule of practice can only be obviated if there is some miscarriage of justice and violation of some principle of law or procedure.”
See also: ALAKIJA & ORS v ABDULAI (1998) LPELR-404(SC), per Ogwuegbu, JSC at page 26, para. G.

With the failure by the Appellants to appeal to the Supreme Court the concurrent findings of fact to the effect that the 3rd Respondent had re-purchased the land in dispute, they are bound by that subsisting finding and cannot embark on any fresh litigation that tends to question same. With this, the Appellants’ first issue of whether they have led evidence in that suit as to entitle them to judgment of the trial Court does not even arise.

In consequence of all the foregoing, I hereby resolve the sole issue for determination in this appeal against the Appellants and hold that the learned trial Judge was right in upholding the issue estoppel raised by the 3rd–5th Respondents and in dismissing the Appellants’ claim against the Respondents.

Being devoid of merit, I hereby dismiss this appeal and affirm the judgment of the trial Court delivered by A. A. Babawale, J. on the 3rd of June, 2013 in Suit No. HCT/89/2004: PRINCE LASISI KUDORO & 4 ORS v EXECUTIVE GOVERNOR, OGUN STATE & 4 ORS. Cost of N200,000.00 is awarded against the Appellants in favour of the 3rd – 5th Respondents.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the benefit of reading in draft, the lead judgment of my learned brother ABBA BELLO MOHAMMED, JCA just delivered. I agree entirely with the reasoning and conclusion reached. I will only add a few words of my own. It is settled law that if a party brings an action against another for a particular cause and judgment is given on it, he cannot institute another suit against the same party for the same cause or issue. Also, within a cause of action, there can be several issues and once an issue has been raised in a case and is determined between the parties, the same issue cannot be raised again by either of the parties in the same or subsequent proceedings. See IGP & ANOR VS. UBAH & ORS. (2014) LPELR 23968 (CA),LADEGA V. DUROSIMI (1978) 3 SC 82, BAMISHEBI V. FALEYE (1987) 2 NWLR (PT. 54) 51 and ADIGUN V. GOVERNOR OF OSUN STATE (1995) 3 NWLR (PT. 385) 513.

It is trite that where the subsequent proceedings is based on different cause of action, issue estoppels can operate only to prevent certain issues which were decided in the original action from arising for further consideration by the Court. See IDIGBE JSC in FADIORA & ANOR. V. GBADEBO & ANOR (1978) 3 SC 219. Therefore, the argument of the Appellants in this instant case, that the judgment of the Courts in the contempt proceeding as contained in Exhibits DE2 and DE3 cannot constitute Res judicate in subsequent proceeding is misplaced, therefore, the trial Court was right to sustain the defence of estoppel raised by the 3rd-5th Respondents to dismiss the claim of the Appellant because the instant suit is caught by issue estoppel which deprive the Court the jurisdiction to entertain same.

In view of the above additional discussion, I am in full agreement with the lead judgment and I also hold that the appeal is unmeritorious and is hereby dismissed. I abide by other consequential orders made in the lead judgment.

FOLASADE AYODEJI OJO, J.C.A.: I had the opportunity of reading in draft, the lead judgment delivered by my learned brother, ABBA BELLO MOHAMMED, JCA.

In the instant appeal, there is no dispute that the disputed land formed part of a larger portion of land owned by the Olofin Chieftaincy family. There is however evidence that the portion which constitutes the disputed land had been sold to the 3rd Respondent who had in turn re-sold it to the 4th Respondent.

Prior to the institution of the action which birthed this appeal, the Appellants had instituted contempt proceedings against the 3rd Respondent at the lower Court in Suit No. HCT/38/86. In its ruling on the contempt proceedings, the 3rd Respondent was discharged and acquitted. The Court in that ruling found that the 3rd Respondent paid the sum of N500,000.00 with other items for the land.

The findings made by the lower Court were challenged in an appeal to this Court in Appeal No. CA/IB/23/03. In a judgment delivered on 29th of April, 2007, this Court held that it found no reason to interfere with the findings and conclusion reached by the learned trial Judge.

The lower Court relied on the decision in Appeal No. CA/IB/23/03 to find in favour of the instant 3rd-5th Respondents. It held that the earlier findings of Court made to wit: that 3rd Respondent purchased the land from their family had not been made subject of appeal to the Supreme Court. Having so held, to hold otherwise will amount to reversing an earlier decision of this Court on the same issue. It is not desirable to so do.
In CARRENA VS. AKINLASE (2008) 14 NWLR (PT. 1107)262 AT 292, PARAGRAPHS G-H, the Supreme Court, per Ogbuagu, JSC held as follows:
“I do not think that this is right and healthy in the administration of justice for which this Court has been widely commended. As a matter of fact, in the case of Usman v. Umaru (1992) 7 NWLR (Pt. 254) 377 at 399; (1992) 7 SCNJ 388, it was held inter alia by this Court, that the Court of Appeal cannot reverse its earlier decision or order simply because another panel of that Court subsequently thought differently about the earlier decision or order.”

It is for the above and the fuller reasons contained in the lead judgment that I too dismiss the appeal and affirm the judgment of the lower Court. I abide by the order as to costs contained in the lead judgment.