DR. OLUSANYA SONUGA v. APOSTLE ADEOLU AINA (2015)

DR. OLUSANYA SONUGA v. APOSTLE ADEOLU AINA

(2015)LCN/7802(CA)

In The Court of Appeal of Nigeria

On Friday, the 6th day of March, 2015

CA/I/80/2009

RATIO

PRACTICE AND PROCEDURE: THE DOCTRINE OF ESTOPPEL PER REM JUDICATAM; WHAT THE DOCTRINE OF ESTOPPEL PER REM JUDICATAM ENTAILS

The doctrine of estoppel per rem judicatam is a rule of evidence whereby a party or his privy is precluded from disputing in any subsequent proceedings, matters which had been adjudicated upon previously by a Court of competent jurisdiction between him and his opponent. By the plea therefore, it means that the res or the thing actually and directly in dispute has been already adjudicated upon by a Court of competent jurisdiction and thus, cannot be re-litigated upon. It means that, the truth of the matter has been tested and ascertained and therefore, the party against whom it was ascertained is taken in law, as admitting same. The principle is founded on the rule of public policy that, it is in the interest of the public that there be an end to litigation. It is therefore expressed in the legal maxim; interest rei publicae ut sit finis litium. See Oduka v. Kasumu (1967) 5 N.S.C.C. P. 290 at 296; Coker v. Sanyaolu (1976) 10 N.S.C.C. P. 566 at 574 and Bonny v. Yougha (1969) 6 N.S.C.C. P. 368. The philosophy behind the application of the principle of estoppel per rem judicatam was expressed by the Supreme Court in the case of Dzungwe v. Gbishe & Anor (1985) 2 NWLR (Pt. 8) P. 528 at 537 – 538 in these words:-
“It is a principle of law now well established that a party is estopped from re-litigating a matter which had been a subject of litigation between the same parties even where the party due to inadvertence or negligence, failed to put forward every subject of his case. This was the observation of Wigram, V.C. in Henderson v. Henderson (1843) 3 Hare 114 reported in 67 E.R. 313 at page 319 thus:
“I believe I state the Rule of the Court correctly when I say that where a given matter becomes the subject of litigation on, and of adjudication by a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies except in special cases, not only on the points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment but to every point which belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

It is clear therefore, that the plea of res judicata prohibits the Court from enquiring into a matter already adjudicated upon. A successful plea of res judicata therefore ousts the jurisdiction of the Court. It also estops the party affected per rem judicatam from bringing a fresh action or claim before the Court. It is based on a rule of public policy that no one shall be vexed twice on the same ground or for one and the same cause of action and on the same issue; and therefore it is in the interest of the common good of the society that there should be an end to litigation. See Okukuje v. Akindo (2001) 10 W.R.N. P. 1 at 48; Madukolu v. Nkemdilim (1962) 2 N.S.C.C P. 374 at 378 – 379; Shonekan v. Smith (1964) 3 N.S.C.C. P. 129 at 132 and Yoye v. Olubode (1974) 9 N.S.C.C. P. 409. See also Alase & Ors. v. Ilori lke & Ors. (1965) N.M.L.R. P. 66 and Kuusu v. Udom (1990) 21 N.S.C.C. (Pt. 1) P. 253. per. HARUNA SIMON TSAMMANI, J.C.A.

PRACTICE AND PROCEDURE: PLEA OF ESTOPPEL PER REM JUDICATAM; WHAT THE PARTY RELYING ON THE PLEA OF ESTOPPEL PER REM JUDICATAM MUST PROVE TO SUCCEED

The law is however well settled that for the plea of estoppel per rem judicatam to succeed, the party relying on it must prove that:
(a) The parties or their privies are the same in both the previous and present proceedings;
(b) The claim or the issue in dispute in both proceedings is the same;
(c) The res or subject matter of the litigation in the two cases is the same;
(d) The decision relied upon to support the plea of estoppel per rem judicatam must be valid, subsisting and final;
(e) The Court that gave the judgment or decision relied upon to sustain the plea must be a Court of competent jurisdiction.
All the above stated pre-conditions must be established before a plea of estoppel per rem judicatam can be sustained. It therefore means that, where any of the above preconditions is lacking, the plea must be discountenanced. SeeEzeokonkwo v. Okeke (2002) 11 NWLR (Pt. 777) P. 1 at 26-27; Alashe v. Ilu (supra) at 300; Esi v. Chief Secretary (1973) 8 N.S.C.C. P. 543 at 554; Adigun v. Governor of Osun State (1995) 3 NWLR (Pt. 385) P. 513; Ekannia v. Nkpakara (1997) 5 NWLR (Pt. 504) P.152 at 167 and Nkanu v. Onun (1977) 11 N.S.C.C. P. 242 at 247. per. HARUNA SIMON TSAMMANI, J.C.A.

EVIDENCE: BURDEN OF PROOF; THE DUTY ON A PARTY WISHING TO RELY ON ESTOPPEL PER REM JUDICATAM TO RAISE SAME IN HIS PLEADING AND TO LEAD EVIDENCE THAT ESTABLISHES SAME

JUSTICES

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

Between

DR. OLUSANYA SONUGA
(For himself and other members of Ogbodo Sonuga Family) Appellant(s)

AND

APOSTLE ADEOLU AINA
(For himself and other members of Gunsenemo Family) Respondent(s)

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Ogun State High Court of Justice, Sagamu Judicial Division presided over by the Hon. Justice O. O. Olapade. The judgment was delivered on the 10th day of May, 2005 wherein, the learned trial judge dismissed the Plaintiff’s (now Appellant’s) claim as having been caught, by the doctrine of estoppel per rem judicatam.

By a writ of summons and the subsequent Amended Statement of Claim, the Appellant as Plaintiff had sought the following reliefs:
(a) Declaration that the piece or parcel of land known and called OGBODO farmland otherwise called AGBODU land situate at Simawa Village Sagamu Local Government Area in Sagamu Judicial Division of Ogun State with Annual Rental Value of Two Hundred Naira (N200.00) and more particularly shown on Plan No. OGK/048/96 dated 6th May, 1996 is in the customary possession and ownership of the Plaintiffs and the Plaintiffs are consequently entitled to Statutory Right of Occupancy in respect of the said piece or parcel of land.

(b) Perpetual Injunction restraining the Defendants, their

servants, privies or agents from disturbing Plaintiff’s enjoyment and ownership of the said land.

Upon being served, the Respondents as Defendants at the Court below, filed an Amended Statement of Defence, wherein they averred at Paragraph 19 thereof that:
“19. The 2nd Defendant shall at the trial contend that this present suit is caught by the plea of res judicata and shall urge the Court to dismiss the suit for being an abuse of Court process, vexatious, frivolous and lacking in merit.”

Before I proceed, I wish to point out that, the action was initiated at the Court below by the Appellant and one Chief Adebayo Sonuga against the Respondent and two others. The 2nd Defendant died before the matter could be heard and determined, so his name was struck out by order of Court on the 25/7/2001. Before then, the 1st Defendant had filed a separate Amended Statement of Defence from that of the Respondent on record, wherein he pleaded at Paragraph 10 of the said Amended Statement of Claim which was filed on the 01/11/99, as follows:
“10. The 1st Defendant pleads the doctrine of estoppel per rem judicatam as the issue of settlement and physical

occupation were resolved.”

In a nutshell, both Defendants at the Court below, who filed separate statements of defence, pleaded and relied on estoppel per rem judicata as part of their defences. The Defendants at the Court below therefore filed a Motion on Notice (see page 30 of the records) seeking that the suit be dismissed in limine on the ground that it was caught by the doctrine of res judicata. The plaintiffs (now Appellants) then filed a Preliminary Objection against the hearing of the motion, and after hearing counsel, the learned trial Judge was of the view that the issue of res judicata is a matter of evidence. Consequently, he held that the matter proceed to evidence. At the hearing, the Appellants called six (6) witnesses, while the Respondents called seven (7) witnesses. Several documents were tendered by the parties, admitted and duly marked as exhibits. At the close of evidence, the parties addressed the Court, and in a well-considered judgment delivered on the 10th day of May, 2005, the learned trial Judge found that the plea of estoppel per rem judicatam had been made out, and consequently dismissed the claim. The Appellant was aggrieved

by the decision and has now filed this appeal.

The appeal was initiated vide Notice of Appeal dated the 2nd day of August, 2005 and filed the 4th day of August, 2005. The Notice of Appeal consists of seven (7) Grounds of Appeal. In the course of hearing the appeal, the 1st Appellant and the 1st Respondent died. Consequently their names were struck out vide Motion on Notice dated and filed the 7th day of April, 2014. Now, in compliance with the Rules of this Court, the parties filed and exchanged briefs of arguments. The Appellant’s Brief of Arguments is that dated the 17/3/20120 and filed the 18/3/2010 but deemed filed on the 15/6/2010. Therein, the appellant formulated 4 issues for determination as follows:
1. Whether or not estoppels per rem judicata enures for the benefit of the Respondents having regard to the Supreme Court judgment relied upon by them?
2. Are the four essential elements for a successful plea of estoppel per rem judicatam met in this case?
3. Whether Exhibit E or F finally decided the issues (trespass and injunction in the former case and declaration of title in the instant appeal) between the parties?
4. Whether

the Survey Plan tendered in Suit No. J/21/63 by the Defendants/Respondents should be produced by the appellants, when it was the Defendants/Respondents who pleaded res judicata and therefore had the burden of proving the size of the land in dispute at that time?

The Respondent’s Brief of Arguments was dated and filed on the 15/6/2010. The Respondent adopted all the four issues as formulated by the Appellant.

In arguing the appeal, the appellant argued issues 1 and 2 together but argued issues 3 and 4 separately. The Respondent followed the same pattern in arguing the appeal. I have considered the arguments of counsel for both the Appellant and the Respondent. Having thus considered, I shall adopt the issues formulated by the Appellant, but shall consider them together.

Now, in arguing the appeal, learned counsel for the Appellants contended that, for a plea of res judicata to succeed, the party relying thereon must satisfy the following conditionalities:-
(i) That the parties (or their privies as the case may be) are the same in the present as in the previous case;
(ii) That the issue and subject matter are the same in the previous suit

as in the present suit.
(iii) That the adjudication in the previous case was given by a Court of competent jurisdiction; and
(iv) That the previous decision must have finally decided the issues between the parties.

Learned Counsel then cited the case of Afolabi & Ors. v. Governor of Osun State & Ors. (2003) 7 S.C.N.J. P.27 at 33 to submit that, failure to satisfy any of the four conditions means failure of the plea in its entirety. He then contended that Suit No. J/21/63 which went to the Supreme Court as Suit No. SC/16/74 was between the Appellants and the Respondents and their respective privies or predecessors; and that Suit No. J/21/63 was before a Court of competent jurisdiction. Learned Counsel then submitted that conditions (i) and (iii) have thus been satisfied.
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Learned Counsel for the Appellant went on to submit that, the second requirement, which is that, the issue and subject matter must be the same has not been met. That the issue in Suit No. J/21/63 or SC/16/74 was, whether the Respondents were liable in trespass; but that in the present suit, the claim of the Appellants was for a declaration of title. He then conceded

that the subject matter, Agbodu or Ogbodo farmland is the same in both suits, but that the issue in the second suit is different from the earlier one. That, the Appellant’s claim in Suit No. J/21/63 (Exhibits E or F) was dismissed without awarding title to the land in dispute to the Respondents. The case of Adesina Oke & Anor v. Shittu Atoloye & Ors (1986) 1 S.C. P. 422 at 454 – 455 was also cited to submit that, Exhibit E or F did not therefore confer any title or legal right in respect of the land in dispute on the Respondents. That the Supreme Court in Exhibit F (SC/16/74) merely affirmed the trial Court’s judgment which dismissed the Appellants’ claim in Exhibit E without more.
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It was further contended that the claim in the previous judgment (Exhibits E or F) did not bring the issue between the parties to finality. That, the issue in the instant case is for a declaration of title to the land known and called Ogbodo farmland. He then referred to the book; “Estoppel and The Law in Nigerian by Dr. F. Olisa Awogu” where it is opined that, a final judgment is one that leaves nothing to be judicially determined or ascertained thereafter in order to

render it effective and capable of execution and is absolute, complete and certain. It was thus submitted that, the judgment in Exhibit E or F does not satisfy the definition of a final judgment; and that no judgment, save that which is final, can be used to successfully make a plea of res judicata.

Learned Counsel for the Appellant went on to contend that, the learned trial Judge put the burden of proving the size of the land in dispute on the Appellants, when he held at page 229 lines 10 – 14 of the record of appeal that, it is the Plaintiffs’ duty to establish title. That this is the correct statement of the law, but that what the learned trial Judge ought to have considered is; on whom the onus of proof of particular facts lie, based on the plea of res judicata. That for the trial Court to uphold the plea of res judicata, it was incumbent on the Respondents to proffer evidence pertaining to the size of the disputed land. We were therefore urged to hold that, the judgment on which the plea of res judicata was based, does not qualify as a final judgment, and to allow the appeal.

Learned Counsel for the Respondent contended that, the Appellant has

conceded that conditions (i) and (iii) have been satisfied, and therefore, as provided by law, what is admitted need not be proved. Furthermore, that the learned trial Judge had resolved at page 216 lines 3 – 13 of the record of appeal that the issues are the same in this case as in Exhibit E or F. That the claim in the previous case is at Paragraph 6 of Exhibit E as can be seen in Exhibit W. That the issue of res judicata raised is the same as in Paragraph 12(a) and (b) of Exhibits E and W.

That the judgment in Exhibit E and R was duly reviewed by the learned trial Judge on pages 224 line 22 – 226 line 22 of the record of appeal. That, the review show that, what was in issue in Exhibits E and R was for possession and injunction, and that in the instant case, the Appellant, sued for declaration of title and injunction. He then referred to the findings of the learned trial Judge in pages 35, 36 and 37 of Exhibit R and the cases of Akintola v. Lasupo (1991) 3 NWLR (Pt. 180) P. 508 and Registered Trustees, Apostolic Church v. Olowoleni (1990) 6 NWLR (Pt.158) P.513 Paragraph B and 514, to submit that, where the claim for trespass is coupled with a claim for

injunction, the title of the parties is automatically put in issue. Furthermore, that the impact of the judgment of the Supreme Court in Exhibit F Suit No. SC/16/74 is that, Suit No. J/21/63 had touched on the issue of title.

On the issue of identity of the land in dispute, as regards its location and size, learned counsel for the Respondent contended that the issue was clarified at page 228 of the records. That the Appellants in Suit Nos. J/21/63; CAW/2/72 and SC/16/74, the Survey Plans used by the parties were; Plan No. EA/96/63 of 30th August, 1963 drawn by Surveyor Ajayi and used by Appellants therein; while the Respondents therein used Plan No. WY5. That those plans were exhibited in Suit No. J/21/63 attached to Exhibit R tendered at the trial in Suit No. HCS/16/97 which is subject of this appeal. Furthermore, that the Plans used in HCS/16/97 was Plan No. OD/LDS/2002/02 of 14th June, 2002 drawn by Surveyor Obafemi Dada. That the Respondent used the Survey Plan having an area marked “red” measuring 117.40 acres except area (marked “green” measuring 8.60 acres) on the composite Plan No. OG/330/D/003/2004 (Exhibit Y drawn by Surveyor S. O. O. Ajayi;

and that Plan No. WY5 in the circumstances needed not be produced as it was attached to Exhibit R in J/21/63. That, this fact was pleaded by the Respondent at Paragraph 19 of the Further Amended Statement of Defence. That, PW1, Surveyor Obafemi Dada made comparison of the two plans used in the case at the lower Court and further made comparisons of the two Survey Plans at page 93 of the record of appeal. We were accordingly urged to hold that condition (ii) has been adequately answered, to the effect that, the issue and subject matter are the same in the previous as in the instant or present suit.

Learned Counsel for the Respondent further contended that, the claims in Exhibits E and F were for trespass and injunction; while the issue in this appeal is for declaration of title and injunction. He then cited portions of Exhibits E and F to submit that, if title had been resolved in favour of the Respondents in Exhibits E and F, then those judgments have brought the issues between the parties to finality. He then cited the cases of Chief Oyelakin Balogun & 2 Ors. v. Oladosu Akanji & Anor (1988) 2 S.C. (Pt.1) P.199 at 233. Idundun & Ors. v.

Okumagba (1976) 9 & 10 S.C. P. 227 at 246 – 250 and Alhaji Jimoh Odutola v. Seidu Alleru & Ors. (1965) 1 S.C. P. 188 at 193, to submit that, once title has been declared in favour of a party, as was done in Exhibits E and F, then no repetition of litigation can be allowed asking for declaration of title. That the question of who, between the Appellants and the Respondents has title to the land in dispute had been decided in Exhibit E and F.

It was further contended by learned counsel for the Respondents that, the Respondent proved the particular facts based on the plea of rem judicatam. That, this was dealt with by the learned trial Judge at page 216 of the record of appeal at lines 3 – 13 thereof. That the pieces of evidence in proof of the plea of rem judicatam are contained at pages 222, 223, 224 line 20; 226 line 23, 227 line 28, 228, 229 lines 1 – 14 and 230 of the record of appeal. That those are enough pieces of evidence that established the plea of estoppel per rem judicatam, such that the learned trial Judge had no cause to refer to Section 149(d) of the Evidence Act. We were therefore urged to resolve all the issues in favour of the

Respondent and against the Appellant, and so to dismiss the appeal and affirm the judgment of the trial Court.

estoppel per rem judicatam was expressed by the Supreme Court in the case of Dzungwe v. Gbishe & Anor (1985) 2 NWLR (Pt. 8) P. 528 at 537 – 538 in these words:-
“It is a principle of law now well established that a party is estopped from re-litigating a matter which had been a subject of litigation between the same parties even where the party due to inadvertence or negligence, failed to put forward every subject of his case. This was the observation of Wigram, V.C. in Henderson v. Henderson (1843) 3 Hare 114 reported in 67 E.R. 313 at page 319 thus:
“I believe I state the Rule of the Court correctly when I say that where a given matter becomes the subject of litigation on, and of adjudication by a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have from negligence, inadvertence, or even accident, omitted part of their

case. The plea of res judicata applies except in special cases, not only on the points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment but to every point which belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

lke & Ors. (1965) N.M.L.R. P. 66 and Kuusu v. Udom (1990) 21 N.S.C.C. (Pt. 1) P. 253.

The above stated doctrine of estoppel per rem judicatam is part of Nigerian Law by virtue of Section 173 of the Evidence Act, 2011 which stipulates that:
“Every judgment is conclusive proof, as against parties and privies of acts directly in issue in the case, actually decided by the Court, and appearing from the judgment itself to be the ground on which it was based unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.”

gave the judgment or decision relied upon to sustain the plea must be a Court of competent jurisdiction.
All the above stated pre-conditions must be established before a plea of estoppel per rem judicatam can be sustained. It therefore means that, where any of the above preconditions is lacking, the plea must be discountenanced. SeeEzeokonkwo v. Okeke (2002) 11 NWLR (Pt. 777) P. 1 at 26-27; Alashe v. Ilu (supra) at 300; Esi v. Chief Secretary (1973) 8 N.S.C.C. P. 543 at 554; Adigun v. Governor of Osun State (1995) 3 NWLR (Pt. 385) P. 513; Ekannia v. Nkpakara (1997) 5 NWLR (Pt. 504) P.152 at 167 and Nkanu v. Onun (1977) 11 N.S.C.C. P. 242 at 247.

Now, in arguing the appeal, learned counsel for the Appellant had contended that, Suit No. J/21/63 which went to the Supreme Court as Suit No. SC/16/74 was between the Appellant and the Respondent or their predecessors or respective privies; and that the Court that decided Suit No. J/21/63 was a Court of competent jurisdiction. He therefore contended that pre-conditions (a) and (e) have been satisfied. It is the law that, what is admitted need no proof. Furthermore, admissions by a legal practitioner in the course

of performing his professional duty is binding on the party he represents. See Cappa & D’Alberto Ltd v. Akintilo (2003) 9 NWLR (Pt. 824) P. 49 and Akanmiwo v. Nsiruni (2008) 9 NWLR (Pt. 1093) P. 439. It therefore remains established that, the previous suit relied upon to make the plea of res judicata, was decided by a Court of competent jurisdiction and the matter was between the predecessors of the Appellants and the Respondents.

Learned Counsel for the Appellant also conceded at Paragraph 4.9 of the Appellant’s Brief of Arguments that, though the subject matter or res, which is Agbodu or Ogbodo farmland is the same in both suits, the issue that came up for determination in the previous suit was different from that in the present suit. In other words, while learned counsel conceded that precondition (c) has been established, the issues or claim in dispute in both proceedings are not the same. It therefore remains established that pre-condition (c); to wit: that the res or subject matter of the litigation in the two cases is the same has been established. What remains to be determined here, is whether the claim in dispute in both proceedings is the

same.

It is settled law that, he who alleges or asserts the existence of a particular fact has the onus to prove his assertion. In that respect, the law places a duty on a party wishing to rely on estoppel per rem judicatam, to raise same in his pleading, and to lead evidence that establishes same. It therefore means that the person who wishes to rely on a plea of res judicata has the burden to lead evidence establishing same. See Ekpenyong v. Etim (1990) 3 N.W.L.R. (Pt. 140) P. 594. Generally, the evidence relied upon is for the trial Court to examine the record of the previous proceedings relied on, and proceed to relate same with the matter under consideration. The trial Court will then conduct an enquiry or examination of the two proceedings with a view to determining what were in issue in the previous case and the claim in the present suit. See Ibezimo v. Ndulue (1992) 1 NWLR (Pt. 216) P. 153 at 174 and Balogun v. Shonibare (1997) 3 N.W.L.R. (Pt. 493) P. 317 at 327.

In the present case, the judgment relied upon by the Respondent is that of the High Court of the Western Region of Nigeria, in the Ijebu Ode Judicial Division. It was determined as Suit

No. J/21/63; and is in evidence as Exhibit “E”. The matter went on appeal up to the Supreme Court, which determined the matter on appeal as Suit No. SC/16/74 and is also in evidence as Exhibit “F”. Thus, in determining whether the claim or issue is the same in the previous as in the present action, the learned trial Judge held at page 224 of the records as follows:
“Pre-condition No.2 is whether the issue and subject matter are the same in both suits. It is pertinent to mention here that in determining whether the plea of estoppel per rem judicatam is established or whether the issues, the subject matter of the two actions and the parties are the same, the Court is permitted to study the pleadings, the proceedings and the judgment in the previous proceedings. The Court may also examine the reasons for the judgment and other relevant facts to discover what was in issue and what was determined in the previous case.”
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After examining the judgment relied upon, which is Exhibit E and F the learned trial Judge then held at page 226 of the records that:
“The above, is the gist of the Judgment in J/21/63 and SC/16/74 Exhibits F and R respectively. These

cases did put paid to the issue of settlement, in effect, title of the Plaintiffs in respect of the land in dispute in that case.”

I have also studied the judgment of the Court relied upon for the plea of res judicata. It is in evidence as Exhibit E. The claim of the Appellant’s predecessors in title therein was for damages for trespass and injunction restraining further trespass. I need also point out that the judgment is also included in the record of proceedings of the High Court sitting at Ijebu-Ode, as Exhibit W. The learned trial Judge held therein at page 52 lines 24 – 32 of Exhibit W that:
“From the review of the case presented by both sides it appears to me that the issue can fairly be resolved into these two broad sides. Each side claim title to the disputed land as shown either in Exhibit 1 or Exhibit 8 and that by the premises of that title, possession of it has always from time immemorial been in the either of the rival family. This is clear from the paragraphs of the pleadings set out above and the history of the land given by both sides.”
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In respect of the Plaintiffs’ claim in that case, the learned trial Judge held at page 53

lines 15 – 29 that:
“It is true that in this case the Plaintiffs are not claiming declaration of title to the land but from the nature of the claim and the way the case of the Plaintiffs have been presented they have put their title into issue; ABOTCHE KPONUGLO & Ors v. ADJA KODAJA 2 W.A.C.A. pages 24, 25. They have asked the Court from the way the case has been presented on their behalf to hold that the Defendants are estopped by the series of judgments in their favour which were pleaded and tendered in evidence that the title of the disputed land is in them. In this respect, they have failed to establish this and having come to this conclusion, I need not make any finding as to which of the story about the settlement of the disputed farm land given by either side is correct or more probable.”

The learned trial Judge went on to hold at page 54 lines 1 – 8 as follows:
“Can such be said of the Plaintiffs here on their claims for trespass and injunction in Paragraphs 8 and 9 of the Statement of Claim that they are the owner of the land in dispute and have been so declared by Courts of competent jurisdiction? It is difficult to separate the

issue of title from the rest of the claims. They have made the issue the main plank of their attack against the Defendants.”

The learned trial Judge then concluded at page 55 lines 25 – 29 that:
“I must come to the conclusion that, their existence on the land if at all they were on it must be shadowy and lends support to the story of the Defendants about encroachment by Plaintiffs tenants unto their (Defendants) own areas where they farm.”

It is therefore clear that the issue of title to the land, as between the Appellants’ ancestors and the Respondents’ ancestors was determined in Exhibit E. That decision is therefore binding on Appellants and the Respondents, being privies to the parties in Exhibit E. Indeed, the learned trial Judge, fell short of declaring title to the land in dispute to the Respondents’ ancestors, because their claim to declaration of title had been withdrawn. This is so because it is the law that, where a plaintiff’s claim for declaration of title fails, the Court cannot declare title in favour of the Defendant, unless there has been a Counter-Claim. In that case, the Court did not declare title to the Respondents’ privies

in title, because there was no such Counter-Claim. However, the issue of title between the parties had been settled and determined by that Court for all times. The Supreme Court in SC/16/74 agreed with the learned trial Judge, when My Lords of Supreme Court, after considering the pleadings of the Appellants therein at Paragraphs 4, 5 and 6 of the Amended Statement of Claim, proceeded to hold at page 39 lines 21 – 25 of the judgment (Exhibit F) that:
“These averments above show clearly that the settlement relied upon by the plaintiffs is inextricably linked with their averment as to the undisturbed and uninterrupted possession of the land. The evidence adduced by them supported these averments.”

In essence therefore, the Supreme Court was ad idem with the trial Court that, the Plaintiffs’ claim in that case was hinged or premised on their claim of ownership or title to the land in dispute. It is not in doubt that the Appellant’s claim in the instant or present case, is akin to that made by their predecessors. They have claimed for declaration of title to the land in dispute and for an injunction restraining perpetually, the Respondents from disturbing

their enjoyment and ownership of the said land. This is even when it had been determined that, as between them and the Respondents, the issue of title has been settled not to lie with them (Appellants). As I stated earlier, the issue of title as between the Appellants and the Respondents has been settled in Suit No. J/21/63 and affirmed by the Supreme Court in SC/16/74. The learned trial Judge was therefore right when he held that the issue in the previous suit relied upon and the present action is the same.

Now, it is clear that the issue of title between the Appellants and the Respondents was determined conclusively and finally in suit No. J/21/63 and affirmed by the Supreme Court in SC/16/74. As regards title to the land therefore, there is nothing left to be determined as between the Appellants and the Respondents. It is my view that, the decision relied upon by the Respondents to sustain the plea of res judicata is a valid, final and subsisting judgment. It is therefore my view, which I hold, that the learned trial Judge was right when he held that, the plea of estoppel per rem judicatam has been made out by the Respondents.
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Having held as

above, it is obvious that this appeal lacks merit. It is accordingly dismissed. I therefore affirm the judgment of the Court below in Suit No. HCS/16/1997, delivered on the 10th day of May, 2005. I hereby award thirty thousand naira (N30,000.00) as cost of the action against the Appellants and in favour of the Respondents.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had a preview of the Lead judgment just delivered by my learned brother, Tsammani JCA. I fully agree with his reasonings and conclusions. I also agree that this appeal lacks merit and ought to be dismissed. I accordingly dismiss it. I abide by all the consequential orders of His Lordship, including the order on costs.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have had the privilege of a preview of the judgment of my lord Haruna Simon Tsammani JCA. I agree with both the reasoning and conclusions reached by my lord in his judgment.

By way of a little contribution, I wish to say a few words of my own. The specie, if I may so describe it, of estoppel, has estoppel per rem judicatam as a sub-specie. The basic characteristic of the specie is to

stop somebody from saying something or from doing something or from contesting something. See the dictum of Lord Denning in Mcllkenny v. Chief Constable of West Midlands Police Force & Anor (1980) 2 All ER 227 at 235 cited in Ukaegbu v. Ugoji (1990) 6 NWLR Part 196 P.166-167.
In the case of estoppel per rem judicatam, it is to stop someone from bringing an action on the basis that the action has been finally decided previously by a Court of competent jurisdiction. The learned authors of Halsbury?s Laws of England 3rd Edition Vol.15 at P. 185 Paragraph 358 stated that in order that a defence of res judicata may succeed, it is necessary to show not only that the cause of action was the same, but also that the plaintiff has had an opportunity of recovering and but for his own fault might have recovered in the first action that which he seeks to recover in the second. The learned authors went on to say that it is not enough that the matter alleged to be concluded might have been put in issue or that the relief sought might have been claimed, it is necessary to show that it was put in issue or claimed.
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In the appeal before us, the learned trial

judge found that the issue of title had been previously put in issue although a declaration of title was not previously claimed. That being the case, the learned trial judge was right to have upheld the plea of estoppel per rem judicatam. For this reason and for the fuller and more detailed reasons given in the judgment of my lord, I agree that the appeal lacks merit. I abide by the consequential orders made by my lord.

Appearances

Miss Titilope Kumapayi with, Miss Oluwatoun AjayiFor Appellant

AND

F. Lawal, Esq.For Respondent