OLOWO OKUKUJE V. ODJENIMA AKWIDO
(2001) LCN/3033(SC)
In the Supreme Court of Nigeria
Friday, January 26, 2001
Case Number: SC. 58/1992
RATIO
EVIDENCE: CONDITIONS FOR THE APPLICATION OF THE PLEA OF RES JUDICATA
For the doctrine of estoppel per rem judicatam to apply, it must be shown that: [a] the parties; [b] the issues, and [c] the subject matter in the previous action were the same as those in the action in which the plea is raised. Once these ingredients of res judicata are established, the previous judgment estops the plaintiff from making any claim contrary to the decision in the previous case – PER KATSINA- ALU J.S.C.
JUSTICES:
ABUBAKAR BASHIR WALI, JUSTICE, SUPREME COURT
IDRIS LEGBO KUTIGI, JUSTICE, SUPREME COURT
SYLVESTER UMARU ONU JUSTICE, SUPREME COURT
ANTHONY IKECHUKWU IGUH JUSTICE, SUPREME COURT
ALOYSUIS IYORGYER KATSINA-ALU, JUSTICE, SUPREME COURT
APPELLANTS
OLOWO OKUKUJE [For himself and on hehalf of Akpara Family of Ofegbe Village, Isoko Division)
RESPONDENTS
ODJENIMA AKWIDO (For himself on behalf of Ighavie Family of Ofagbe Village, Isoko Division)
A.I. KASTINA – ALU, JSC (Delivering the Leading Judgment):
This appeal is from a decision of the Court of Appeal, Benin Division which set aside the judgment of the trial Oleh High Court in a land claim. The plaintiff brought this action for himself and on behalf of the Akpara Family of Ofagbe Village against the defendant Odjeniwa Akwido for himself and on behalf of Ighavie Family also of Ofagbe Village in Isoko Division for the following reliefs:
1. A declaration of title to the land verged pink in the survey plan filed by the Plaintiff.
2. N200.00 damages for trespass committed by the Defendant between January, 1976 and February, 1976.
3. An order of forfeiture of the defendant’s right of tenancy to the area verged pink in plaintiff’s survey plan and for an order of perpetual injunction restraining the defendant from carrying on any building on the area verged pink in the survey plan.
4. An order of mandatory injunction to remove any structures erected or crops grown outside the area verged yellow and brown in plaintiff’s survey plan.
5. Any other legal or equitable relief.
The defendant not only filed a defence but also a counter-claim for:
1. A declaration of title to the land particularly described in the defendant’s plan.
2. N10,000.00 damages for trespass committed by the Plaintiffs, their servants, agents or workmen who, sometime between February, 1976 and November, 1983 broke and entered the said land, deposited sand thereon and erected structures.
3. An order of perpetual injunction restraining plaintiffs from entering the said land or part thereof.
The defendant at the trial relied on estoppel per rem judicata and issue estoppel both in his pleadings and in his evidence. The basis for such reliance was two judgments –
(1) an Owhe Customary Court judgment (Exhibit ‘C’) and,
(2) Oleh Magistrate Court judgment (Exhibit ‘D’)
In his judgment the learned trial judge held that the present action was not res judicata and also that the plaintiff has proved his claim. He entered judgment for the plaintiff in the following terms:-
(a) A declaration that the plaintiff and his family are entitled to a certificate of occupancy to the piece of land verged pink in plaintiff’s survey plan tendered as Exhibit ‘A’
(b) N100.00 damages against defendant and his family for trespass.
(c) Perpetual injunction restraining the defendant, his servants, agents and all members of Ighavie family from carrying on any building or other works on the land verged pink in Exhibit ‘A’ without the consent of the plaintiff and members of his family except the portion verged yellow and brown on Exhibit ‘A’
The defendant appealed to the Court of Appeal Benin Division. The Court below in its judgment held that the defendant had successfully made out a case for the application of both cause of action estoppel and issue estoppel. The court therefore allowed the appeal, dismissed the plaintiff’s claim and entered judgment for the defendant on the counter-claim. This appeal by the plaintiff to this Court is from the said decision of the Court of Appeal.
The plaintiff submitted two issues for determination. They are:-
1. Whether the plea of estoppel per rem judicatam (and we would add) and issue estoppel avail the respondent, and if they do, whether the respondent is entitled to judgment in his counter-claim?
2. If the plea of estoppel per rem judicatam and issue estoppel are unavailable to the respondent, whether the appellant is entitled to judgment (and we would add) as found by the trial Court?
The defendant also raised two issues for determination which read as follows:
1. Whether the Court of Appeal was right when it held that both cause of action estoppel and issues estoppel applied in favour of the Defendant/Counter-claimant.
2. Whether the Court of Appeal ought to have considered the other grounds of appeal filed by the Defendant/Respondent in his appeal to that Court and the consequence of its failure to consider them.
The main question for determination in this appeal is whether the Defendant made out a case for the application of both estoppel per rem judicatam and issue estoppel.
Estoppel per rem judicatam or estoppel of record arises where an issue of fact has been judicially determined in a final manner between the parties or their privies by a court or tribunal having jurisdiction in the matter and the same issue comes directly in question in subsequent proceedings between the parties or their privies. See Igwego v. Ezeugo (1992) 6 NWLR Pt. 249) 561; Osunrinde v. Ajamogun (1992) 6 NWLR (Pt. 246) 156.For the doctrine of estoppel per rem judicatam to apply, it must be shown that:
[a] the parties;
[b] the issues, and
[c] the subject matter
in the previous action were the same as those in the action in which the plea is raised. Once these ingredients of res judicata are established, the previous judgment estops the plaintiff from making any claim contrary to the decision in the previous case. See Odjewedje v. Echanokpe [1987] 1 NWLR [Pt. 52] 633; Ezeanya v. Okeke (1995) NWLR [Pt. 388] 142; Dokubo v. Omoni [1999] 8 NWLR [Pt. 616] 647. I shall now proceed to examine whether these main ingredients of res judicata were established by the defendant as found by the court below.
Parties: It was the case of the plaintiff that the parties are not the same. It was pointed out that the defendant who was the plaintiff in Oweh Customary Court Exhibit ‘C’ brought the action in a representative capacity i.e. for himself and his Ighavie family. He brought this action against the plaintiff herein who was defendant in his personal capacity. It was the contention of the plaintiff that the fact that he made reference in his evidence at the Customary Court to the root of his title does not amount to defending the action in a representative capacity. Put in another way, the plaintiff’s contention is that he was sued in his personal capacity and that he defended the action in his personal capacity.
The defendant, for his part, concedes that even though he prosecuted the previous case in a representative capacity, he sued the defendant therein (i.e plaintiff in the present case) in his personal capacity. It was however submitted that the defendant in that case defended the action in a representative capacity for himself and on behalf of the Akpara family.
The question to be resolved is: did the defendant in the earlier case (Exhibit ‘C’) defend the action in his personal capacity or in a representative capacity for himself and on behalf of the Akpara family? The defendant in Exhibit ‘C’ testified and gave evidence as follows:
‘The plot in dispute is owned by Akpara my great grandfather .my Akpara family has a common boundary with Ese family in Egbahe Street, my family also have boundaries with Osifo and Egide families in the plot in dispute.’
His witnesses all testified to the effect that the plot in dispute belonged to the Akpara family.
From the totality of the evidence called by the defendant in the earlier case (Exhibit ‘C’) is it right to say that he defended the action in a representative capacity? The answer would depend on who is a representative. A representative is a person authorised to act or speak for another or others. By this definition, it would appear that there must be some kind of authorisation given by the person or person to be represented.
Throughout the evidence of the Defendant, he did not as much as allude to the fact that he was defending the action for himself and on behalf of his family. I am not unmindful of the fact that this was a trial in a Customary Court. That notwithstanding, it must be apparent on the record that the defendant defended this suit for himself and on behalf of his family.
The plaintiff in that case sued the defendant personally. The reason is obvious. The claim against the defendant was for title and damages for trespass. It was never contended that some other members of the defendant’s Akpara family also trespassed unto the building plot in question. Part of the plaintiffs evidence in the Customary Court reads:
‘When the defendant was building the house, my father who is now late refused that he should build it. He then used force to build it, but my father who was aged then wept. Later on, my sister named Ititi Okoro caused the defendant to be summoned to the Ofagbe town community over the plot in dispute and the decision was in favour of my sister. The defendant was then asked to quit the plot.’
All along, the culprit, as it were, was the defendant. The fact that he was sued personally was a deliberate act by the plaintiff He was conscious of the fact that no other member of Akpara family disputed the building plot with him and his family. Against this background, it will be seen clearly that the evidence of the defendant that ‘the plot in dispute is owned by Akpara my grandfather’ was only intended to explain away his root of title. He did not remotely suggest that the plot was allocated to him by the principal members of the Akpara family. He did not also say that he was in court defending the action with the full knowledge and consent of the Akpara family members.
So, can it be said that the parties in the two cases are in the same capacity and right when Exhibit ‘C’ was fought on the basis of a contest between Ojenima Akwido for himself and on behalf of Ighavie lineage of Ugwe family of Ofagbe and Olowo Okukuje of Ofagbe whereas the present case is between Olowo Okukuje for himself and on behalf of Akpara family of Ofagbe village and Odjenima Akwido for himself and on behalf of Ighavie family of Ofegbe village both claiming to be exclusive owners of the land in dispute? I am of the strong view that by no stretch can the parties in the two cases be said to be suing and defending the suits in same rights and interest. It is now settled law that where an action is brought by a person in a representative capacity against another person personally and prosecuted to judgment, and later a further action is brought against him in a representative capacity by the Plaintiff in the original action, the judgment is not the same, since in the earlier action the defendant is sued in his personal capacity and in the later action as a representative of a class of persons. See Shitta-Bey & Ors. The Chairman, LEDB & Ors. (supra); Ezeanya v. Okeke . In the latter case, this court per Iguh, JSC held thus:
‘Where an action is brought against a defendant personally and prosecuted to judgment, and later a further action is brought against him in a representative capacity by the plaintiff in the original action, the judgment is not res judicata as the parties to the respective actions are not the same, since in one action the defendant is sued personally and in the other as representative of a class of persons.’
Also in Udeze & Ors. v. Chidie & Ors. (1990) 1 NWLR (Pt. 125) 141 this Court per Nnaemeka-Agu JSC held:
‘In that state of facts, the question is: can the parties in the two cases be said to be in the same capacity and right when Exhibit C was fought on the basis of a contest between Nnadi Nsugbe and Ifete Nteje claiming to be exclusive owners and the whole of Ifiti Nteje, claiming to be communal owners of the land in dispute?
I am of the clear view that by no stretch can the parties in the two cases be said to be suing and defending the suits in the same rights and interest. So if the issue of res judicata were taken as a sole issue and, as often happens, in limine, I would for these reasons, have had no alternative but to agree with Chief Ikeazor that the learned trial Judge was in error to have held that the decision in Exhibit C operates as res judicata in this case…..’
It must be borne in mind here that the land claimed by the respondent in his counter-claim encompassed a large tract of land which included the area claimed by the Appellant. It must also be remembered that the parties have prosecuted and defended the action in a representative capacity.
The decisions of this court speak of ‘where an action is brought against the defendant personally and prosecuted to judgment.’ What does this phrase mean? I think it means that the defendant who is sued personally does not change the capacity throughout the trial. How can he change that personal capacity in which he is sued? He can do this by tendering the authority to defend in a representative capacity from the class of persons he seeks to represent. In trials in native courts, it is sufficient if he states that he is defending for himself and the persons represents some of whom will testify and confirm his authority. In Exhibit ‘C’, the personal capacity in which the defendant was sued did not change throughout the trial.
One more point, if the evidence that ‘the plot in dispute is owned by Akpara’ is taken to mean that the land in question belongs to the Akpara family then it is right to say that the plaintiff did not sue the proper party. The Akpara family should have been joined in the action. This is so because family land remains family land irrespective of allotment. See Olanguno v. Ogunsanya (1970) 1 ANLR 223. The Court has a duty to ensure that all parties likely to be affected by the result of an action are joined in the action: See Okafor v. Nnaife (1993) 3 SC. 85.
For the above reasons, I am of the clear view that the Court of Appeal was in error when it held that the parties in the previous proceeding are the same as the parties in the present case. The court below per Edozie JCA held thus:
‘As I indicate at the onset the main question posed in this appeal relates to the plea of estoppel per rem judicatam. It is elementary principle of law, that before a judgment can operate as an estoppel in subsequent proceeding, the parties, issues and subject matter in the two proceedings must be the same. In the case in hand, it is clear that the parties in the previous judgment, Exhibit ‘C’ are the same as the parties superficially the defendant in Exhibit ‘C’ was sued personally although he in the instant case sued in a representative capacity for himself and on behalf of Akpara family of Ofagbe village. But it is trite that in dealing with customary court cases, what matter is the substance and not the form of the claim:
Ben Ikpeng & Ors. v. Chief Sam Edoha & Ors. {1978) 6, 7, 8, S.C.p. 221. Learned counsel for the appellant submitted, and this was not disputed by the opposing counsel that although the respondent in the present case was in the previous proceeding sued personally, he nevertheless, defended the action in a representative capacity for the Akpara family. After scanning through Exhibit ‘C’I agree entirely with him. In his evidence in the customary court proceeding (pp. 190 & 193 of the record), the defendant therein that is the respondent in the present case said:
‘My name is Olowo Okukuje .. I am a direct descendant of Akpara, Akpara begat Eloge….. The plot in dispute is owned by Akpara, my great grandfather ……………………….’
I am satisfied that the parties to the previous proceeding are the same as the parties to the present case. The principal relief sought in the two proceedings, to wit, title to land are also the same. The issue in the two suits are therefore the same. With respect to the matter, it is common ground that the land in dispute in the former proceedings is smaller than the land in the present case. In Exhibit ‘C’ the claim was for a declaration of title in respect of a building plot which according to Oweh customary court Judges who inspected it measured 48ft by 30ft. The area in dispute in the present case is not specified but from the survey plan Exhibit ‘A’ ‘B’ it is a much larger area of Land.’
The above view has two major flaws. First, the parties, as I have shown are not the same. In the earlier case, Exhibit ‘C’, the present plaintiff was sued in his personal capacity. And he defended the suit in his name. He has instituted the present action and was himself sued in a representative capacity i.e. for himself and on behalf of Akpara family. Clearly it cannot be said that he defended the earlier suit and prosecuted the present suit in the same rights and interest. The judgment in the two cases is not the same either because in the one action the plaintiff herein was sued personally and in the present action he brought this suit and was sued in a representative capacity for himself and on behalf of Akpara Family.
In the second place, the subject matters in the two action were not the same. The subject matter of the earlier case (Exhibit C) was a smaller area of land whereas the subject matter in the present case is a much larger area of land of which the land in Exhibit ‘C’ forms only a fractional part. It is for this reason that the plea of res judicata cannot apply to the larger land area in contention. In Aro v. Fabolude the Supreme Court held:
‘The most lenient treatment the plaintiff’s case could possibly receive from the High Court would have been for the small area verged yellow to be excised from the large tract of land and the defendant declared owner, as per rem judicatam, of the portion, based on Exhibit B, while the plaintiff would be left to discharge the onus of proof which lay on him in respect of the remainder of the land…………………………………’
Area Of Law:
It was pointed out on behalf of the plaintiff that the land in dispute in Exhibit ‘C’ was only 48 feet by 30 feet. In the instant case the land in dispute is a much larger parcel of land. I might add that the land in Exhibit ‘C’ forms a part of the larger area now in dispute in the present case. It was the plaintiff’s submission that the subject matter in the two cases is not the same. Consequently the plea of res judicata cannot apply to the larger land area in contention. Plaintiff relied on the case of Aro v. Fabolude (1983) NSCC Vol. 14 p.43. For the defendant, it was submitted that the Court of Appeal was right in holding that the subject matter in Exhibits ‘C’ ‘D’ and instant suit are the same. It was pointed out that the cause of action in the present case is the area of land already litigated upon in Exhibit ‘C’.
It is not in dispute that the subject matter in the Customary Court – Exhibit ‘C’ was a smaller area of land whereas the subject matter in the present case in a much larger area of land of which Exhibit ‘C’ forms only fractional part. The defendant at p.9 of his brief of argument [Respondent’s brief] said:
‘It is submitted therefore, that the defendant clearly showed by evidence the extent of land litigated in Exhibit ‘C’ and identified the land and its boundaries among the piece of land in dispute in this suit.
In fact the evidence in this suit clearly shows that even though it involved a far bigger land, the real cause of action is the area of land already litigated and decided upon in Exibit ‘C’ ‘D’. Having therefore clearly ascertained the boundaries of the land in dispute in Exhibit ‘C’, it is submitted that the appellant herein is estopped from instituting this action over that same piece of land. The action as it relates to that area, it is submitted, ought to have been dismissed by the trial court and judgment entered for the respondent with respect to that area.’
The defendant seems here to be concerned only with the area of land in Exhibit ‘C’ which was the cause of action in the previous case. There is evidence that the land which was the subject matter of the previous action was far smaller than that in question in the present action. This is not dispute.
I am therefore unable to accept the contention that the subject matters of the two actions were the same. See Dokubo v. Omoni .
ISSUE ESTOPPEL
One of the conditions to satisfy in order to sustain a plea of issue estoppel is that the parties must be the same in both cases – see Samuel Fadiora & Anor. v. Gbadebo & Anor. [1978] 3 SC. 219 at 228 – 229. I have already held that the parties in the present case are not the same, therefore the question of issue estoppel as between the present parties does not arise. See Ezeanya v. Okeke )
In previous suit only the appellant in his personal capacity had interest to defend. The situation was different in the present suit because other members of appellant’ family were interested and therefore necessary parties. They had a right to be heard in a claim involving their properties which were at no time in issue in the previous suit.
In the course of his judgment, the learned trial judge held thus:
‘It is quite clear from above that the area claimed by the defendant was a building plot unlike the instant case where the defendant in his counter claimed a piece or parcel of land lying and situate along Egbahe Street shown in Exhibit ‘B’. In effect the area he claimed in Exhibit ‘B’ is by far larger than the area he claimed in Exhibit ‘C’ and the subject matter cannot therefore be the same as Exhibit ‘C’ does not cover Exhibit ‘B’ and the evidence therein. It is also my view that neither the judgment in Exhibit ‘C’ ‘D’ nor the evidence given therein could create estoppel per rem judicatam as between the plaintiff and the defendant since the evidence, the issues and the reasons for the decision will be different. For a judgment to create estoppel, between the parties, the estoppel must be mutual as between the parties. Daniel & Anor. v. Iroeri [1985] 1 NWLR part 3 page 541 at 542. As between the plaintiff’s case and that of the defendant’s case, I accept and believe the evidence in the plaintiff’s case as truthfully stating how the land in dispute was founded by Akpara, the plaintiff’s ancestor through the generosity of Egide.
I also accept and believe the plaintiff’s case that Igbavie left the defendant’s family and stayed with Obohwo of plaintiff’s family. I do not believe the evidence of the defendant as to how Igbahe land was founded by his ancestor, Uhwe, because he failed to trace his root of title to the land through his ancestor, Uhwe, I do not believe his evidence that Uhwe brought Akpara, the plaintiff’s ancestor from the bush to stay with him. I am quite satisfied on the evidence before me and find as a fact that the land in dispute belongs to the plaintiff’s family and they have been such owners in possession from the time Egide gave it to his ancestor Akpara. The defendant’s claim of ownership of the land therefore fails and plaintiff is entitled to judgment.’
I agree completely. The decision is amply supported by the evidence before the trial court.
In the result I am satisfied that the trial court properly evaluated the evidence and came to a right decision. This appeal therefore succeeds. I allow it and set aside the judgment of the Court of Appeal. I hereby restore the judgment of the trial court delivered on 4/12/87. The Plaintiff/Appellant is entitled to costs which I asses at N10,000.00.
A.B. WALI, JSC.
I have had the privilege of reading in advance, the lead judgment of my learned brother Katsina – Alu and with all humility.
I am unable to subscribe to the conclusion arrived at therein; alternatively I agree with the judgment of my learned brother Iguh JSC which I also have had the advantage of reading in advance. I agree with reasons he advanced in support of the conclusion which I hereby adopt as mine.The plaintiff/appellant claimed in the trial court for a declaration of title and forfeiture to a piece or parcel of land situate in Ofagbe Village in Isoko Division within Ughelli Judicial Division. He also claimed for N200.00 general damages for trespass committed by the defendant, his servant agents and mandatory injunction. The defendant denied the plaintiff’s claim and counter-claimed for a declaration of title to that parcel of land lying and situate along Egbahe Street in Ofagbe village in Isoko Local Government Area within the jurisdiction of the Honourable Court. At the trial court, the parties led evidence in support of their respective claims as averred in their pleadings. Each party tendered a survey plan depicting the extent of the land being claimed.
In his considered judgment the learned trial judge gave judgment for the plaintiff but refused to grant him the prayers for a forfeiture and a mandatory injunction, justifying his refusal on the long stay on the land in dispute by the members of the dependants’ family.
Dissatisfied with trial court’s decision the defendant lodged an appeal against it to the Court of Appeal, Benin Division which, in a unanimous decision allowed the appeal on grounds of res judicata and issue estoppel which the appellate court found successfully established, contrary to the findings of the trial court on the same issues.
The plaintiff has now appealed to this court. The learned trial judge it seems did not give adequate consideration to the evidence adduced in support of res judicata and issue estoppel. The learned trial judge opined thus –
‘It is quite clear from above that, that area claimed by the defendant was a building plot unlike the instant case where the defendant in his counter-claim, claimed a piece or parcel of land lying and situate along Egbahe Street as shown in Exhibit ‘B’. In effect, the area he claimed in Exhibit ‘B’ is by far larger than the area he claimed in Exhibit ‘C’ and the subject matter cannot therefore be the same as Exhibit ‘B’ and the evidence therein. It is also my view that neither the judgments in Exhibit ‘C’ ‘D’ nor the evidence given therein could create estoppel per rem judicatam as between the plaintiff and the defendant since the evidence, the issues and the reasons for the decision will be different. For a judgment to create estoppel, between two parties, the estoppel must be mutual as between the parties.’
However, the Court of Appeal after its thorough and meticulous consideration of the evidence adduced in support of ‘estoppel per rem judicatam’ ‘issue estoppel’ in its lead judgment delivered by Edozie JCA, with which Musdapher JCA and Ejiwunmi JCA [as he then was] agreed, concluded as follows on the two issues as regards the identity of parties –
‘In the case in hand, it is clear that the parties in the previous judgment, Exhibit ‘C’are the same as the parties in the present case except that superficially the defendant in Exhibit ‘C’ was sued personally although he in the instant case sued in a representative capacity for himself and on behalf of Akpara family of Ofagbe village.
But it is trite that in dealing with customary court cases, what matters is the substance and not the form of the claim: Ben Ikpeng and Ors. v. Chief Sam Edoha & Ors. (1978) 6, 7, 8, S. C. p. 221. Learned counsel for the Appellant submitted, and this was not disputed by the opposing counsel that although the Respondent in the present case was in the previous proceeding sued personally, he nevertheless, defended the action in a representative capacity for the Akpara family. After scanning through Exhibit ‘C’ I agree entirely with him.’
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‘I am satisfied that the parties to the previous proceeding are the same as the parties to the present case. The principle relief sought in the two proceedings, to wit, title to land are also the same. The issue in the two suits are therefore the same.’
On the res or subject matter in dispute, the learned Justice of the Court of Appeal said –
‘With respect to the subject, it is common ground that the land in dispute in the former proceedings is smaller than the land in dispute in the present case. In Exhibit ‘C’ the claim was for a declaration of title in respect of a building plot which according to Oweh customary court judges who inspected it measured 48ft by 30ft. The area in dispute in the present case is not specified but from the survey plans Exhibits ‘A’ ‘B’ it is a much larger area of land. Learned counsel for both parties appear to be in agreement, and the lower court was of the same view, that the land in dispute, the subject matter Exhibit ‘C’ ‘D’ is part of the land in dispute in the instant case but they have agreed to disagree on the effect of the previous judgment on the case under consideration.’
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‘now, reverting, to the present appeal and applying the principle distilled from the Amos Ogbesusi Aro v. Salami Fabolude supra to the present case, it seems clear that the learned trial judge was in error in entering judgment in favour of the Respondent in respect of the entire land verged pink in the Respondent’s Survey plan Exhibit ‘A’ in the face of the judgment of the Oweh Customary court, Exhibit ‘C’ adjudging the Appellant owner of a plot of land forming part of the large area verged pink in Exhibit ‘A’. At the worst, the lower Court should have given the Respondent judgment for the area verged pink less the area the subject matter in Exhibit ‘C’ and if this area is not identifiable because no plan was used, to non-suit the Appellant so as to give him the opportunity to establish that portion in a subsequent action. The lower court was also clearly in error when it failed to appreciate that the decision of the Oweh Customary Court with respect to the traditional histories of the parties constituted an issue estoppel precluding the Respondent from re-opening the issue in a subsequent proceeding.’
The learned justice of the Court of Appeal had earlier concluded that both the parties in the previous case involving Exhibit ‘C’ and the present action are the same.
For the claim or defence of estoppel per rem judicatam to operate, the following must be established:-
1. The parties in both previous case and the present case are the same.
2. The subject matter or ‘res’ in the two cases are the same.
3. The issue involved in the two cases are also the same.
See Ukaegbu & Ors. v. Ugoji & Ors. [1919] 6 NWLR [Pt. 196] 127; Omokhafe v. Esekhome [1993] 8 NWLR (Pt. 309) 58; Madukolu v. Nkemdilim; [1962] All NLR 587 and Odjewedje v. Echanokpe [1987] NWLR (Pt. 52) 633.
Guided by the principles laid in the cases referred to above, I have no difficulty in coming to the conclusion and agreeing with Court of Appeal that both parties, the res or subject matter and the issue involved or cause of action are the same both in Exhibit ‘C’ which is the previous case, and the present case.
What misled the trial court to arrive at the conclusion that both the parties and the subject matter in Exhibit ‘C’ are not the same as in the present case is the fact that, in Exhibit ‘C’ the defendant sued the present plaintiff in his own name.
Since the proceeding in Exhibit ‘C’ was conducted before a customary court, in order to find out whether the parties litigated in representative capacities, the court should not confine itself to the form of action, but must read and consider the proceedings as a whole. What matters is the substance and not the form. See Solomon Jonah vs. Kojo Owu 3 WACA 170; Osu v. Igibi [1988] 1 NWLR (Pt. 69) 231; Chukwunta v. Chukwu & Ors. 14 WACA 341 and Yode Kwao v. Kwasi Coker 1 WACA 162. In Exhibit ‘C’ the present defendant as plaintiff for and on behalf of Igbavie lineage of Ugwe Family sued the present plaintiff, ostensibly personally, but in actual fact, and from a close consideration of the
