CHIEF IDRIS OLUWAFEMI ASUNMO & ANOR v. MR. OLUWOLE AKINLUYI (2019)

CHIEF IDRIS OLUWAFEMI ASUNMO & ANOR v. MR. OLUWOLE AKINLUYI

(2019)LCN/12930(CA)

In The Court of Appeal of Nigeria

On Thursday, the 28th day of March, 2019

CA/EK/71/2018

RATIO

ESTOPPEL PER REM JUDICATA: WHAT IT ENTAILS

The doctrine of estoppel per rem judicatam, a Latin maxim, connotes that where a Court of competent jurisdiction has settled by a final decision, the matter in controversy between the parties in an action, the said parties or their privies cannot re-litigate that matter again by bringing a fresh action. See the cases of Adigun v. A/G Osun State & Ors. (1995) 3 NWLR (Pt. 385) 513 at 533 to 534, Osunrinde v. Ajamogun (1992) 6 NWLR (Pt. 246) 156 at 183.PER PAUL OBI ELECHI, J.C.A.

ESTOPPEL PER REM JUDICATA: THE RATIONALE BEHIND THIS DOCTRINE
The rationale behind the doctrine was long ago underscored by Aniagolu JSC (of blessed memory) in the case of Aro v. Fabolude (1983) SCNLR 58 in the following words:
There must be an end to litigation. Parties are not permitted to bring fresh litigation because of new views they may entertain of the law of the case or new versions which they may present as to what should be a proper apprehension by the court of the legal result either of the construction of the document or the weight of certain circumstances. If those were permitted, litigation would have no end except when legal ingenuity is exhausted.”PER PAUL OBI ELECHI, J.C.A.

ESTOPPEL PER REM JUDICATA: THE 4 CONDITIONS UPON WHICH IT IS BASED

The application of the doctrine of estoppel per rem judicatam is based on the four conditions which must exist cumulatively for the plea to be successful. The conditions are as follows:
(1) The parties must be the same in the earlier as in the second action.
(2) The issue or subject matter must be the same in the earlier action as in the second action.
(3) The judgment or decision in the earlier action must be final one.
(4) The Court which adjudicated upon the earlier suit must possess the requisite jurisdiction over the suit. See the cases of Manson v. Halliburton Energy Services Ltd (2007) 2 NWLR (Pt. 1018) 211 at 243, Makun v. F.U.T. Minna (supra), Madukolu v. Nkemdilim (supra). Omokhafe v. Ezekhomo (1993) 8 NWLR (Pt. 309) 58 at 68.
The burden is on the party who sets up the defence of estoppel per rem judicata to establish, the above-mentioned necessary pre-conditions to sustain the plea. See Oke v. Atoloye (1985) 1 ALL NLR (Pt. 2) 118 at 122, (No.1) (1985) 2 NWLR (Pt.9) 578, Fadiora v. Gbadebo (1978) 3 SC 219, Eze Okonkwo v. Okeke (2002) 31 WRN 1 SC.PER PAUL OBI ELECHI, J.C.A.

JUSTICES

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria

Between

1. CHIEF IDRIS OLUWAFEMI ASUNMO
2. MR. FOLUSO AKINOLA
(for themselves and on behalf of Oloje family, Emure Ekiti) Appellant(s)

AND

MR OLUWOLE AKINLUYI
(For himself and on behalf of Adekanmbi branch of Oke Ojumu family) Respondent(s)

PAUL OBI ELECHI, J.C.A.(Delivering the Leading Judgment): This is an appeal by the Appellant against the decision of the Ekiti State High Court sitting at Emure Ekiti as contained in the judgment of Hon. Justice A. Adesodun delivered on the 18th day of April 2018. Being dissatisfied with the decision, the Appellants filed a notice of Appeal dated and filed on the 22nd day of May 2018.

FACTS RELEVANT TO THIS APPEAL
The appellants in this case had on the 19th January, 2017 as claimants instituted this action at the Emure High Court by a Writ of Summons and statement of claims, claiming against the respondents as follows: –
(a) A declaration that the claimants are entitled to customary right of occupancy over the vast area of land lying, being and situate at Oloje family land, Itaro, along Okeseri Road, Emure Ekiti, Ekiti State which land is bounded as follows:
(i) On the first side by Farinre Family
(ii) On the second side by Adekanmbi oke-Ojumu Family
(iii) On the third side by Atua Family and
(iv) On the fourth side by Asae family.
(b)The sum of N10,000,000.00 (Ten Million Naira Only) as

general damages against the defendant for the acts of trespass committed and still being committed by the defendant on the Oloje Family land, Itaro along Okeseri Road, Emure Ekiti Ekiti State which land is bounded as follows.
(i) On the first side by Farinre Family
(ii) On the second side by adekanmbi oke-Ojumu family.
(iii) On the third side by Atua Family and
(iv) On the fourth side by Asae family.
(c) An order of perpetual injunction restraining the defendants, whether by himself or by his agents servants or privies from further committing acts of trespass on the Oloje family land, Itaro, along Okeseri, Emure Ekiti, Ekiti State which land is bounded as follows:
(i) On the first side by Farinre Family
(ii) On the second side by adekanmbi oke-Ojumu family.
(iii) On the third side by Atua Family and
(iv) On the fourth side by Asae family.

The Respondent filed a motion on notice No: HCE/10M/2017 Challenging the competence of the suit vis-a-vis the jurisdiction of the Court to entertain the suit on grounds of estoppel and abuse of Court process.

On the 18th April 2018, the lower Court delivered its ruling

and upheld the Respondents preliminary objection. Being dissatisfied with the said ruling, the Appellants have exercised their constitutional right to appeal against the ruling.

Issues for determination
For the purpose of just and effective determination of this appeal, the appellants formulated two issues for determination thus:
(i) WHETHER THE TRIAL COURT RIGHTLY DISMISSED THE APPELLANTS? SUIT, I.E. SUIT NO: HCE/1/2017 FOR WANT OF JURISDICTION ON THE GROUND THAT SAME WAS CAUGHT BY THE DOCTRINE OF ESTOPPEL PER REM JUDICATAM. (GROUNDS 1 AND 3)
(ii) WHETHER THE TRIAL COURT DID NOT DEAL WITH THE SUBSTANTIVE CASE OR ISSUE AT THE INTERLOCUTORY STAGE BY HOLDING THAT THE APPELLANTS FAILED TO IDENTIFY THE FRAGMENT OF ITARO FARMLAND UPON WHICH THE JUDGMENTS IN SUITS NOS: CC/24/2007 AND HCE/1A/2016 WERE BASED, THE TRIAL COURT HAVING FAILED TO CALL ORAL EVIDENCE FOR THE PURPOSE OF RESOLVING THE CONFLICTING AFFIDAVIT EVIDENCE VIS–VIS THE PLEADINGS PLACED BEFORE IT BY THE PARTIES. (GROUND 2 AND 4)

As per the Appellants relief at the lower Court, the Respondents challenged the competence of the Appellants suit on the ground that same was

caught by the doctrine of estoppel per rem judicatam and constituted an abuse of Court process. This was done through a motion on notice dated 20th day of July 2017 but filed on the 25th day of July 2017 as well as the Respondents statement of defence dated 13th day of September 2017 but filed on the 14th day of September 2017.

Learned Appellant counsel argued that both the Appellant and Respondent pleaded and relied on the two judgments delivered in suit Nos CC/24/2007 and HCE/1A/2016, only the Appellants frontloaded copies of the certified true copies of the judgments with their pleadings, the Respondent only attached Exhibits A, The Amended claim filed by the privy of the Appellants at the customary Court, Emure Ekiti in suit No HCE/1A/2016.

The Court is urged to compare and contrast the relief claimed by the Appellants and their privy in suit No: CC/24/2007 which went on appeal in suit No HCA/1A/2016 and suit No HCE/1/2017

He stated that the law is firmly established that for the plea of estoppel per rem judicatam to succeed, the party relying on it must prove the following requirements or preconditions as follows:

(i) That the parties or the privies are the same in both the previous and present proceedings;
(ii) That the claim or the issue in dispute in both proceedings is the same;
(iii) That the res or subject matter of the litigation in the two cases is the same;
(iv) That the decision relied upon to support the plea of estoppel per rem judicatam is valid, subsisting and final; and
(v) That the Court that gave the previous decision relied upon to sustain the plea is a Court of competent jurisdiction.

Unless the above stated pre-conditions are fully established, the plea of estoppel per rem judicatam cannot be sustained. See the cases of ADONE V. IKEBUDU (2001) 36 WRN 24; (2001) 14 NWLR (PT. 733) PG. 385; ALASHE V. OLORI-ILU (1965) NMLR 66; FADIORA V. GBADEBO (1978) 3 S.C. 219; YOYE V. OLUBODE (1974) 1 ALL NLR (PT. 2) PAGE 118 PER ADEKEYE JCA (P.147) LINES 24-45. See also ODUMOSUN V. OLUWOLE (2002) 41 WRN 117CA

It is submitted that it is a question of fact whether or not the parties and their privies, the facts in issue and the subject matter of the claim are the same in both the previous and the present cases. Hence, the burden is on the party who sets

up the defence of estoppel per rem judicatam to establish the above-mentioned necessary pre-conditions to sustain the plea. See the cases of OKE V. ATOLOYE (1985) 1 ALLNLR (PT. 2) 118 AT 122; (NO. 1) (1985) 2 NWLR (PT. 9) 578, FADIORA V. GBADEBO (1978) 3 S.C. 219. PER IGUH, JSC (PP. 24 -25) LINES 30 ? 45. See also EZEOKONKWO V. OKEKE (2002) 31 WRN 1 SC.

Though it might be rightly said that the respondent established pre-conditions 1, 4 and 5 as listed above in respect of his plea of estoppel per rem judicatam vis–vis suit No: HCE/1/2017 as held by the learned Trial Judge, the same position could not be maintained by the trial Court concerning the pre-conditions 2 and 3 as enumerated above, in that, the respondent failed woefully to prove by leading credible and reliable evidence that the claim or the issue in dispute in suit No: CC/24/2007 which went on appeal in suit No: HCE/1A/2016 was the same with the claim or the issue in dispute in suit No: HCE/1/2017. Also, the respondent failed to prove by leading credible and reliable evidence that the res or subject matter of the litigation in suit NO: HCE/1/2017. This was so because the claim relating

to the land in dispute in Suit No: CC/24/2007 which went on appeal in Suit No: HCE/1A/2016 was different and distinct from the present claim in Suit No: HCE/1/2017, in that, the appellants herein claimed a declaration for entitlement to customary right of occupancy, damages for trespass and an order of perpetual injunction against the respondent over Itaro farmland in Suit No: HCE/1/2017. Whereas, in suit No. CC/24/2007 which went on appeal in suit No: HCE/1A/2016, the appellants, i.e. their privy claimed and prayed the Court for an order compelling the respondent to stop entering the appellants? family land as well as for an order compelling the respondent, his agents, servants, or privies to quit from the appellants? family land situate and lying at Igborua, Emure Ekiti.

?Further on the failure of the respondent to prove the necessary pre-conditions capable of sustaining a plea of estoppel per rem judicatam, it is submitted that the respondent failed to prove that the res or the subject matter of the litigation in Suit No: CC/24/2007 which went on appeal in Suit No: HCE/1A/2016 was Igborua farmland, the res or subject matter of the litigation

in Suit No: HCE/1/2017 was Itaro farmland. It is our submission that the trial Court ought not to have upheld the respondent?s objection to the appellants suit in suit No: HCE/1/2017 and/or dismissed same for want of jurisdiction on the ground of estoppel per rem judicatam, the respondent, having failed to prove the necessary pre?conditions capable of sustaining the plea of estoppel per rem judicatam.
See Joseph Akole & 5 Ors. v. Joshua Ojo Alonge & Anor (2009) ALL FWLR (pt.468) 295, Oshodi v. Eyifunmi (2000) 6 SCNJ.

Also submitted is that the respondent did not comply with the above stated principles of law. The trial Court did not examine the judgments delivered in Suits Nos: CC/24/2007 and HCE/IA/2016 which were relied upon by the respondent in support of his plea of estoppel per rem judicatam in depth with a view to discovering the parties, the issues or claims and the subject matter of the dispute in the previous case vis-a-vis Suit No: HCE/1/2017, and this omission had occasioned a miscarriage of justice. See the case of ANYIM MBA V. AGUFO AGU (1999) 9 S.C.N.J. 84.

The trial Court found in its ruling being appealed

against that the location of the land litigated upon in Suit No: CC/24/2007 which went on appeal in Suit No: HCE/1A/2016 was at Igborua. However, the trial Court also found that the boundary men to the said Igborua farmland were not stated on the amended claim in Suit NO: CC/24/2007 which was attached to the respondent?s motion on notices on estoppel per rem judicata as ?Exhibit A?. It must be noted that the appellants, in their pleadings in Suit NO: HCE/1/2017 as well as the counter affidavit and further and better counter affidavit filed by them against Motion No: HCE/10M/2017 joined issues with the respondent with respect to the fact that the subject matter conclusively decided upon in Suit No: CC/24/2007 which went on appeal in Suit No: HCE/1A/2016 was part of Itaro farmland which was mischievously claimed to be part of Igborua farmland by the respondent. It is evident from the available evidence on record that the ownership of Itaro farmland has not been decided by any Court of competent jurisdiction till date. During the trial Court?s proceedings in Suit No: CC/24/2007, both the appellants and the respondent admitted that Igborua

and Itaro farmlands were two different places or farms and that the two farms shared common boundaries.

Flowing from the above stated facts, there is no doubt that the subject matter, the questions, issues or claims as well as the reliefs placed before the Court in Suit No: HCE/1/2017 area different and distinct from the subject matter, questions, issues or claims and reliefs decided upon in Suit No: CC/24/2007 which are not based on Itaro farmland. Hence, the trial Court ought not to have dismissed Suit No: HCE/1/2017 for want of jurisdiction, because the respondent failed to establish fully all the pre-conditions necessary for the sustainability of the defence or doctrine of estoppel per rem judicatam as required by law. See the cases of INTERCITY BANK PLC., V. FAISAL TRAVEL AGENCY LTD., (2006) 4 NWLR (PT.971) 594; NWANERI V. ORIUWA (1959) SCNLR 316; OKE V. ATOLOYE (NO.2) (1986) 1 NWLR (PT.15) 241; JACOB BIARIKO & 7 ORS. V. EDEH-OGWUILE & 2 ORS. (2001) 3 M.J.S.C. 1.

ISSUE TWO
?Whether the trial Court did not deal with the substantive case or issue at the interlocutory stage by holding that the Appellants failed to identify the

fragment of Itaro farmland upon which the judgments in suits Nos: CC/24/2007 and HCE/1A/2016 were based, the trial Court having failed to call oral evidence for the purpose of resolving the conflicting affidavit evidence vis–vis the pleadings placed before it by the parties? (Grounds 2 and 4)

?Appellant learned counsel adopted his arguments and submission in respect of issue one. The law is firmly settled that the relevant Court processes to be considered by the trial Court in determining the issue of jurisdiction (i.e. plea of estoppel per rem judicata) are the facts deposed to in the facts, the Writ of summons and the Statement of Claim where one has been filed and served (as rightly done by the appellants in Suit No: HCE/1/2017). Hence, the statement of defence is not one of the relevant materials for that purpose. See the cases of USMAN V. BABA (2005) 5 NWLR (PT. 917) 113; ADEYEMI V. OPEYORI (1976) 9-10 S.C. 31; EGBUZIEM V. EGBUZIEM (2005) 4 NWLR (PT. 916) 488.

It is submitted that the trial Court failed to consider all the relevant facts deposed to by the appellants in their counter affidavit and further and better counter

affidavit filed by the appellants against Motion No: HCE/10M/2017 as a whole. Also, the trial Court failed totally to consider the Writ of Summons and Statement of Claim throughout the length and breadth of its ruling before coming to the hasty conclusion that Suit No: HCE/1/2017 was caught by the doctrine of estoppel per rem judicatam, and consequently dismissed same for want of jurisdiction. The Court is urged the Court to so hold.

On the ruling in respect of the motion No: HCE/10M/2017, learned Appellant counsel contended that the trial Court wrongly relied on paragraphs 8 & 16 of the counter-affidavit and further and better counter-affidavit filed by the Appellants against motion No: HCE/10M/2017 in isolation respectively without considering the entire depositions contained therein as a whole.

Also, the trial Court did not consider the entire averments in the appellants? Writ of Summons and Statement of Claim at all, let alone considering same as a whole or in isolation. Consequently, the trial Court held on page 8 of its ruling being appealed against that the appellants failed to identify the fragment of Itaro farmland upon which the

judgment in Suits Nos: CC/24/2007 and HCE/1A/2016 were based. It is therefore submitted that the above stated findings or holding of the trial Court put the identity of Itaro farmland in issue with respect to Suit No: HCE/1/2017. The law is firmly settled that a Court of law should and must not decide the very same matter which is to be determined in the substantive case before or at the interlocutory state. See the case of S.C.C. NIG. LTD., V. UNIVERSAL INSURANCE CO., LTD., (1995) 5 NWLR (PT.401) 370; BROWN V. BROWN (1994) 7 NWLR (PT.355) 217; EGBE V. ONOGUN (1972) 1 ALL NWLR 95; NDOMA EGBA V. GOVT., OF C.R.S. (1991) 4 NWLR (PT.188) 733, STANBIL NIG., LTD., V. INOUCOM NIG. LTD., (2018) 9 NWLR (PT.1625) 586.

In view of the above authorities coupled with the conflicting affidavit evidence placed before the Court by the parties as well as the writ of summons, statement of claim and other accompanying processes, it is submitted that as far as suit No: HCE/1/2017 is concerned, the issue of identification or identity of the fragment and/or the entire parcel of Itaro farmland cannot and ought not to be treated at the interlocutory stage as wrongly done by the

trial Court as it would be better resolved during the trial or hearing of the said substantive suit.

Even the filing of a sketch or survey plan of the affected area of Itaro farmland in dispute would also be better resolved during the hearing of the substantive suit ? HCE/1/2017. It is therefore submitted that the Appellants were not bound to file a sketch map or Survey plan in order to identify Itaro farm land, same having been done properly by mentioning their boundary men in their writ of summons and statement of claim in suit No: HCE/1/2017 which the trial Court refused or neglected to consider in its ruling in an action for declaration of title to land, the onus is on the claimants (i.e. the appellants) to establish with certainty the identity of the land in dispute to which their claim is related. This, the appellants can do in one of the two ways, viz:
(i) By oral evidence describing with such degrees of accuracy the said parcel of land in a manner that will guide a surveyor in producing a survey plan of the said land.
(ii) By filling a survey plan reflecting all the fractures of the land showing clearly the boundaries. See the cases

ofEZUKWU V. UKACHUKWU (2004) 7 NWLR (PT. 224) 2137 also reported in (2004) 7 NWLR (PT. 902) 227; BARUWA V. OGUNSOLA (1938) WACA 159; AWOTE V. OWODUNNI (NO.2) 2 NWLR (PT.57) 366.

It is submitted that the appellants satisfied the requirement of the first way of establishing the identity of the land in dispute i.e. Itaro farmland in Suit No: HCE/1/2017, the appellants, having described with degrees of accuracy the land in dispute in a manner that would guide a surveyor in producing a survey plan of Itaro farmland. Hence, the holding of the trial Court that the appellants failed to identify the fragment of Itaro farmland upon which the judgments in Suits Nos: CC/24/2007 and HCE/1A/2016 were based could not hold water, in view of the fact that the trial Court failed to call oral evidence placed before it by the parties in line with the Writ of Summons and Statement of Claim.

This omission has occasioned a miscarriage of justice and urged the Court to so hold. It is further submitted that proper description of Itaro farmland is available in the proceedings to the extent that the identity of Itaro farmland, as distinct from Igborua farmland, is known to

both parties. The law is that, in such a situation, a plan is not a sine qua non. See the cases of ARABE V. ASANLU (1980) 5-7 S.C. 78; ATOLAGBE V. SHORUN (1988) 1 NWLR (PT.2) 360, ALSO REPORTED IN (1985) 4 S.C. 250.

The Court is also urged to so hold on whether the issue of estoppel per rem judicatam can be disposed of in the face of conflicting affidavit evidence at all as wrongly done by the trial Court with respect to motion No: HCE/10M/2017 in suit No: HCE/1/2017.

Learned Appellant counsel answered in the negative and submitted that it is settled law that the issue of estoppel per rem judicata cannot be disposed of by affidavit evidence. That a party who relies on a plea of estoppel per rem judicatam has to lead evidence to show that the parties and the subject matter in the two cases are the same and also that the earlier judgment was a final judgment and delivered by a Court of competent jurisdiction.

Further, the earlier judgment being relied upon must be tendered in evidence. SeeEffiom & Ors. v. Chief Ironbar & Ors. (2000) 3 NWLR (Pt.650) 545 at 555.

The trial Court did not appreciate any of the above and this

has led to a miscarriage of justice. See Falobi v. Falobi (1976) 1 NMLR 169. It is submitted that the Respondent?s affidavit evidence and his pleadings before the trial Court were beret of the requisite materials capable of sustaining the plea of estoppel per rem judicatam in favour of the respondent. Therefore, the ruling or decision of the trial Court on motion No: HCE/1/2017 was perverse and same could not be supported by evidence.

In conclusion, learned Appellant?s counsel urged the Court to allow the appeal, set aside the ruling or decision of the trial Court delivered by Hon. Justice A. Adesodun of the Ekiti State High Court, Emure Ekiti Judicial Division on the 18th day of April, 2018 but erroneously dated 13th day of April, 2018 on Motion No: HCE/10M/2017 in Suit No: HCE/1/2017 and remit the substantive case i.e. Suit No:HCE/1/2017 back to the High Court of Ekiti State for hearing or trial by another judge who does not have fore-knowledge of the case.

The Appellants have distilled two issues for determination in this appeal and the Respondent adopt the issues as formulated by the Appellants.

ARGUMENT ON ISSUE NO.1.
?Whether the trial Court rightly dismissed the Appellants suit, (i.e. Suit No: HCE/1/2017), for want of jurisdiction on the Ground that same was caught by the doctrine of estoppel per rem judicatam? (Grounds 1 and 3).
It is submitted that the Lower Court was right in dismissing the Appellant?s suit on the ground that same was caught by the estoppel per rem judicatam. See Asiru v. Asiru (2014) 18 WRN. The Respondent it is contended, has fully fulfilled all the required preconditions for the evocation of the doctrine of estoppel per rem judicatam which even the Appellants have admitted.

Learned Respondent counsel stated that paragraphs 6 and 8 of the Appellants counter-affidavit clearly reveal that the Appellants are intentionally relitigating suits No: CC/24/2007 and HCE/1A/2016 because of the reasons expressed in those paragraphs of the affidavit. But suit No: CC/24/07 having been dismissed at the customary Court and the dismissal upheld by the High Court in HCE/1A/2016, it can no longer be relitigated under any guise as the Appellants are trying to do in this circumstance.

?It is submitted that the land being the subject matter of the

suit No: CC/24/2007 and HCE/1A/2016 is the same subject matter herein the instant suit No: HCE/1/2017. Regardless of whatever name or nomenclature parties chose to call the land, it is only one simple land which parties know by different names. Nomenclature does not change the land or its location. It was still the same land visited by the first customary Court panel as Igborua during their visit in quo, that is still in dispute here, the land has not changed.

Paragraphs (b) and (c) of the Particulars of Error in Ground of Appeal in suit HCE/1A/2016 on page 57 of the Record of Appeal are herewith reproduced hereunder for ease of reference:
?(b) Appellants? claim at the lower Court was that, he knows the land in dispute at Itaro and not Igborua farmland.
(d) Respondent maintained that the land was known to him as Igborua?.

From the passage reproduced above, the following can be discerned: (i) only one land has consistently been in dispute; (ii) both parties know the land in dispute; (iii) both parties knew the land by different nomenclature. It is also clear from the passage that Respondent has ab-initio (2007 till date)

consistently maintained that the disputed land is Igborua. On the contrary, the Appellant has been inconsistent about the name. Appellant’s initially claimed that the name of the land in dispute is Igborua from 2007 ? May 2014. On 20th May, 2014, the Appellants for the 4th time amended their Claim by substituting the word ?Igborua? with ?Itaro?. See pages 36 lines 1-3 of the Record of Appeal. See also pages 54-55 of the Record of Appeal.

Both the Appellants? Claim and the Respondent?s Counter-Claim in suit CC/24/2007 apply to one single land, which is also the subject matter of Suit HCE/1/2017 which resulted to the instant appeal. It is trite law that both Claim and the Counter-Claim usually have the same suit number because they usually relate to one subject matter. On the relationship between a defendant?s counter-claim and plaintiff?s claim, seeEJIOFOR V. MBANUGO (2013) 16 WRN, p. 102, ratio 4.

It is further submitted the land in dispute in the previous suit is one and the same with the land being the subject matter of the instant suit. What is even more, according to learned

counsel is that the two reliefs in the civil summons and the amended claim in suit No: CC/24/2007 are asking the Court to stop the Respondents from entering the land in dispute and order quitting them, the said reliefs confirm that the parties know the land and that the Respondent is in possession, occupation, necessitating a quit order. The Reliefs in CC/24/2007 confirm that the claim and counter-claim relate to the same subject matter- land of which the Respondent nomenclature notwithstanding.

In response to the submission of the Appellants in paragraph 4.05 on page 8 of the Appellants? Brief of Argument, that the reliefs sought in the previous suit and the instant suit are different, it is submitted that the reliefs cannot be said to be different. The claims of the Appellants in suit CC/24/2007 are injunctive in nature, asking the Court to stop respondent from entering the land at Igborua and an order quitting respondent there from.

Even though the Appellants are praying for injunctive reliefs, declaration of title has automatically come into play, as can be seen in the judgment in suit No: CC/24/2007. Also when a claim for trespass and injunction are

involved in a suit, title to the land is automatically put in issue. See Ajibulu v. Ajayi (2015) 22 EJSC 184, Chukwu v. Akpelu (2015) 23 EJSC 148.

Learned counsel stated that the issue of title to the disputed land has been conclusively settled in CC/24/2007 and HCE/1A/2016. It is settled that Respondent has been in possession and occupation prior to the commencement of Suit CC/24/2007. It is also settled that the prayer for an order to quire him (the Respondent) failed. Hence, Respondent remains the owner in possession. Respondent cannot trespass to his own land which he has been in perpetual and effective possession.

From the foregoing, it is submitted that the issues in the previous suits and the instant suit are the same. As such, decided suits/issues cannot be relitigated under any guise.

Also, damages for trespass cannot stand on nothing, as one cannot put something on nothing and expect it to stand. Title and injunctive reliefs having been resolved, determined and settled in suit CC/24/2007 and suit HCE/1A/2016, they cannot be relitigated in the circumstance, under whatever guise. That being as it may, the relief of damages cannot fly

as it is dependent and subsumed under the other reliefs already determined in the previous suit C/24/2007 and HCE/1A/2016.

The Court is therefore urged to disregard technicality being raised by the Appellant. It is contended that contrary to the submission of the Appellants in their Brief of Argument, it is submitted that the lower Court diligently examined all the content of his file, the processes filed therein, including the judgments delivered in suits CC/24/2007 and HCE/1A/2016.

The judgment in suit No: HCE/1/2017, is on pages 190-203 of the Record of Appeal. The lower Court?s examination and analysis runs through pages 194-198 of the Record of Appeal. At page 194 lines 31-35 of the Record the lower Court wrote as follows:
?A good starting point is to examine the suit CC/24/2007 which is the claim of the claimant/respondents against the defendant/applicant at the customary Court Emure Ekiti.?

Therefore, the submission of Appellants on page 12 of their Appellants brief of Argument that the trial Court did not examine the judgments in suit CC/24/2007 and HCE/1A/2016 is therefore grossly misleading and unfounded.<br< p=””

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Also, that the argument of the Appellants on page 13 of their Brief of Arguments is tantamount to an admission that suit HCE/1/2017 and the previous suit (CC/24/2007 and HCE/1A/2016) bother on the same subject matter. Page 13 lines 1-5 of Appellants Brief of Argument reveals that Appellants joined issues with the Respondents to the effect that the subject matter conclusively decided upon in CC/24/2007 and HCE/1A/2016 covers Itaro farmland, and so the subject matter is one and the same land different names notwithstanding. The Court is urged to resolve issue 1 in favour of the Respondent.

ISSUE NO.2
Whether the trial Court did not deal with the substantive case or issue at the interlocutory stage by holding that the Appellants failed to identify the fragment of Itaro farmland upon which the judgments in suits Nos: CC/24/2007 and HCE/1A/2016 were based, the trial Court having dialled to call oral evidence for the purpose of resolving the conflicting affidavit evidence vis–vis the pleadings placed before it by the parties.

?Learned Respondent counsel elects to adopt all his submissions on issues one in respect of issue 2. The lower

Court was faced with an issue of jurisdiction based on estoppel per rem judicatam. As a threshold matter, jurisdiction once raised, all proceedings abate until it is resolved. See Olabomi v. Oyewole (2016) EJSC 31 at page 1-14, APGA v. Anyanwu (2014) 14 WRN (SC) 1-45. To determine the issue of jurisdiction, the Court will consider the Court process i.e. the writ of summons and the statement of claim. SeeInakoju v. Adeleke (2008) 30 WRN ratio 14, page 9:

It is submitted that that the lower Court has done according to the requirement of the law in the circumstances by looking at the Writ of Summons and the Statement of Claim.
The Court apart from looking at the Statement of claim also looked at the documents attached to the Statement of Claim.

The decision of the lower Court was based on the facts contained in the statement of claim and accompanying documents front loaded therewith. The passages and Particulars of Error reproduced in the ruling, being appealed against, were not contained in the affidavit evidence for and against the motion.

The submission of the Appellants that the lower Court ought to take oral evidence on the pleadings is grossly misconceived.

Even the conflicting affidavit evidence can be resolved by documentary evidence, not necessarily by oral evidence. And what the lower Court did was to resolve the conflicting affidavit using the public documents attached to the Statement of Claim. Hence, the lower Court was right and in order, on the authority ofBONTUS NIG. LTD V. SIFA PROJECTS (2013) 16 WRN.

Documentary evidence it is settled is the best evidence. See Agberah v. Mimra (2008) 12 WRN 29.

It is then submitted that the lower Court was right by resolving the issue of estoppel per rem judicata at the earliest opportunity, without taking any further step since the law requires that the Court looks only at the writ of summons and the statement of claim without taking any further evidence.

Furthermore, the submission by the Appellant that the judgment in suits CC/24/2007 and HCE/1A/2016 must be tendered in evidence at the trial before the Court can rely on it is misconceived and not the law. SeeOyewole v. Akande (2009) 38 WRN 1, Abiodun v. A/G Fed. (2008) 17 WRN 56, Garuba v. Omokhodion (2011) 33 WRN 1 at 11, Uzodinma v. Izunaso (2012) 2 WRN 1.

The submission of the Appellants that the lower Court decided substantial issue at interlocutory stage is not correct. The lower Court did not decide any substantial issue at the interlocutory stage. The only issue that the lower Court decided was the issue of Estoppel per-rem judicata. No other material issue was decided upon. There is no miscarriage of justice occasioned in the circumstances.

In conclusion, the Court is urged to discountenance the submissions of the Appellants on issue 2 and to uphold the Respondent?s submission on issue 2 and resolve the said issue 2 in favour of the Respondent.

On the whole, the Court is urged to dismiss the appeal in its entirety and uphold, affirm and sustain the decision of the lower Court.

RESOLUTION OF ISSUES
The Appellants formulated two issues for determination in this appeal. The Respondents on their own adopted Appellants issues for determination. These issues which I also adopt in my consideration of this appeal are as follows:
(1) Whether the trial Court rightly dismissed the Appellant?s Suit i.e. No: HCE/1/2017 for want of jurisdiction on the ground that same was caught by the

doctrine of estoppel per rem judicatam. (Grounds 1 & 3)
(2)Whether the trial Court did not deal with the substantive case or issue at the interlocutory stage by holding that the Appellants failed to identify the fragment of Itaro farmland upon which the judgment in Suit Nos: CC/24/2007 and CC/1A/2016 were based, the trial Court having failed to call oral evidence, for the purpose of resolving the conflicting affidavit evidence vis–vis the pleadings placed before it by the parties. (Grounds 2 & 4.)

ISUUE NO.1

?Whether the trial Court rightly dismissed the Appellants suit No. HCE/1/2017 for want of jurisdiction on the ground the same was caught by the doctrine of estoppel per rem judicatam.? (Grounds 1 & 3)

It is the contention of the Respondents at the lower Court that the land in dispute had earlier on been litigated upon to conclusion between the same parties. The Respondent is therefore raising as a shield the plea of ?estoppel per rem judicatam?.

However, the Appellant?s reaction to this is that the rights of the parties and the res in their earlier suit filed against the

Respondents was not finally determined by the lower Court. The doctrine of ?estoppel per rem judicatam? a Latin maxim, connotes that where a Court of competent jurisdiction has settled by a final decision, the matter in controversy between the parties in an action, the said parties or their privies cannot re-litigate that matter again by bringing a fresh action. See the cases of Adigun v. A/G Osun State & Ors. (1995) 3 NWLR (Pt. 385) 513 at 533 to 534, Osunrinde v. Ajamogun (1992) 6 NWLR (Pt. 246) 156 at 183.
The rationale behind the doctrine was long ago underscored by Aniagolu JSC (of blessed memory) in the case of Aro v. Fabolude (1983) SCNLR 58 in the following words:
?There must be an end to litigation. Parties are not permitted to bring fresh litigation because of new views they may entertain of the law of the case or new versions which they may present as to what should be a proper apprehension by the court of the legal result either of the construction of the document or the weight of certain circumstances. If those were permitted, litigation would have no end except when legal ingenuity is exhausted.”

Blacks Law Dictionary 8th Edition defines, ?res judicata? as a thing adjudicated?. In other words, the phrase means ?an issue that has been definitely settled by judicial decision?. It is an affirmative defence barring the same parties from litigating a second law suit on the same claim arising from the same transactions that could have been but was not raised in the first suit. Generally, estoppel means a bar that prevents one from asserting a claim or right that contradicts what one has said or done before or what has been legally established as true. A bar that prevents the re-litigation of issues.
Therefore, estoppel per rem judicatam is a doctrine barring a party from litigating an issue determined against that party in an earlier action. See Cole v. Jibunoh (2016) LPELR ? 40662 (SC), Tukur v. Uba (2013) 4 NWLR (Pt.1343) 90, Makun v. F.U.T. Minna (2011) 18 NWLR (Pt. 1278) 190, Balogun v. Adejobi (1995) LPELR ? 724 (SC).
Under doctrine under discourse, the Supreme Court reiterated the well-established position of the law in the case of Cole v. Jibunoh (supra) as follows:

?Where a Court of competent jurisdiction has finally settled the matter in dispute between parties neither party nor privy may litigate that issue under the guise of bringing a fresh action, since the matter is said to be res judicatam.?

The application of the doctrine of ?estoppel per rem judicatam? is based on the four conditions which must exist cumulatively for the plea to be successful. The conditions are as follows:
(1) The parties must be the same in the earlier as in the second action.
(2) The issue or subject matter must be the same in the earlier action as in the second action.
(3) The judgment or decision in the earlier action must be final one.
(4) The Court which adjudicated upon the earlier suit must possess the requisite jurisdiction over the suit. See the cases of Manson v. Halliburton Energy Services Ltd (2007) 2 NWLR (Pt. 1018) 211 at 243, Makun v. F.U.T. Minna (supra), Madukolu v. Nkemdilim (supra). Omokhafe v. Ezekhomo (1993) 8 NWLR (Pt. 309) 58 at 68.
The burden is on the party who sets up the defence of estoppel per rem judicata to establish, the above-mentioned necessary pre-conditions to sustain the plea.

See Oke v. Atoloye (1985) 1 ALL NLR (Pt. 2) 118 at 122, (No.1) (1985) 2 NWLR (Pt.9) 578, Fadiora v. Gbadebo (1978) 3 SC 219, Eze Okonkwo v. Okeke (2002) 31 WRN 1 SC.

The Appellant conceded that the Respondent established pre-conditions 1, 4 and 5 as listed above in respect of his plea of estoppel per rem judicata vis–vis suit No: HCE/1/2017 as held by the learned trial judge, but that same position could not be maintained by the trial Court concerning the pre-conditions 2 and 3 as enumerated above.

In paragraph 4.07 of the Appellants Brief of Argument the Appellants said:
?My Lords? it might be rightly said that the Respondent established preconditions 1, 4 and 5, as listed above, in respect of his plea of estoppel per-rem judicata, vis–vis, suit No. HCE/1/2017 as held by the learned trial Judge, the same position could not be maintained by the Trial Court concerning the preconditions 2 and 3 enumerated above?.

Therefore, the consideration of this issue on the ?estoppel per rem judicatam? would be concentrated on pre-conditions 2 and 3 i.e.
(2) The issue or subject matter must be the same in the earlier action as in the second action.

(3) The judgment or decision in the earlier action must be a final one.

As a good starting point, learned Appellant?s Counsel had urged the Court to compare and contrast the reliefs claimed by the Appellant and their privy in suit No: CC/24/2007 which went on appeal in suit No: HCE/1A/2016 and suit No: HCE/1/2017 ? The Civil summons in suit No: CC/24/2007 was instituted at the Customary Court, Emure-Ekiti, in representative capacity, by Appellants family, on 3rd August 2007, in respect of the land at Igbo-Orua, Emure-Ekiti, with the following reliefs:
?i. Plaintiff is seeking for an order of this honourable Court to compel the defendant to stop entering the plaintiff family land.
ii. An Order of the Court jointly and severally on defendant, his agents, servants or privies to quit from the land situated and lying at Igbo-Orua, Emure-Ekiti?
See pages 34 and 51 of the Record of Appeal.

The Respondent filed a Counter-Claim on the 8th September, 2007. See pages 34 and 52 of the Record.

?The parties opened their respective cases and called

witnesses, before the customary Court panel, between 4th October, and closed on 16th June, 2009. Thereafter, the Customary Court visited the locus-in-quo, at Igborua, Emure-Ekiti. However, before the Final Address, the Panel was disbanded.

On the 25th May, 2014, the then Appellants solicitor Barrister Aladetoyinbo made an oral application to further amend the claim by substituting the word ?Igborua? with ?Itaro?. See pages 36, 54-55 of the Record of Appeal.

From 3rd August, 2007 ? 25th May, 2014, the Appellants gave evidence before two different Customary Court panels claiming a land at Igborua. The first Panel visited the Locus in quo at Igborua. The Appellant amended their Claims on 25th November, 2013 still maintained that the name of the land Igborua, Emure-Ekiti.

Regardless of whatever nomenclature, the parties knew the land in issue and none of them took the panel to Itaro, during the visit to the locus-in-quo.

?The Respondent tendered the certified true copy of the record proceedings of the two previous Customary Court Panels, as Exhibit A, so as to impeach the credibility of the Appellants and their witnesses, whose original

claim via their Civil Summons, amended claim as well as testimonies on oath during trial before the two previous Customary Court panels are in respect of land at Igborua, as against Itaro, which they suddenly woke up to after seven calendar years in Court.

The judgments in suits CC/24/2007 and HCE/1S/2016 are in respect of the land at Igborua, along Igboseri farmland, in Emure-Ekiti. The Appellants, in paragraph 35 of their Statement of Claim, on page 5 of the Record of Appeal, averred that they have already abide by the judgment in Suit CC/24/2007 (HCE/1A/2016). Also, in paragraph 7 of the Appellants? Counter-Affidavit to the Respondent?s preliminary objection, Appellants deposed that they have since complied with the judgments in suit CC/24/2007 and suit HCE/1A/2016.

The question arising here in how? How could Appellants have complied with judgment which is based on a land situate at Igborua, when Appellants are insistent that their own land is at Itaro. Since Igborua is not Itaro, logically, the Appellants cannot be said to have complied.

?The Appellants have not complied at all, rather than complying, the applicants have instituted

suit HCE/1/2017, which led to the instant suit. This is clearly captured by paragraph 6 and 8 of the Appellants, Counter-Affidavit which is reproduced hereunder:
?6. That the subject matter of the instant suit HCE/1/2017 has been conclusively decided upon in suit CC/24/2007 and suit HCE/1A/2016 as wrongly claimed by the defendant applicant.
8. That the judgment in suit CC/24/2007 and HCE/1A/2016 were based on fragment of Itaro farmland which the defendant/applicant mischievously claimed to be Igborua farmland?. See page 131 of the Record of Appeal?.

Paragraphs 6 and 8 of the Appellants? Counter-Affidavit, reproduced above, seem to reveal that the Appellants are intentionally relitigating suit CC/24/2007 and HCE/1A/2016 because of the reasons expressly stated in those paragraphs of the affidavit.

The Appellants believe that the judgment in suit No: CC/24/2007 was based on a fragment of Itaro farmland but was not even a ground in their grounds of appeal in HCE/1A/2016. Further, it must be noted that all through the trial at the customary Court, the Appellants and their witnesses amended their process repeatedly and gave

evidence repeatedly and at no time did the Appellant ever say that the land being litigated upon is a fraction of their family land.

The Customary Court in suit No: CC/24/2007 stated thus:
?Because the claimant has not been able to establish his title to the land which he identified as Itaro, the devolution of interest as well as his boundarymen and the exact identity of the land he claims, the Court will not grant the prayers of the claimant. In another breath, the Court shall refrain from dismissing the case of the claimant so as to give it another opportunity to find his Itaro and prove his case properly as long as Itaro is not Igborua?.

The Appellants not being satisfied with the judgment of the Lower Court (Customary Court) in suit No: CC/24/2007 went on appeal via suit No: HCE/1/2016. The Appeal Court in suit No: HCE/1A/2016 upheld the decision of the customary Court dismissing suit No: CC/24/2007. At this state, it becomes a final judgment and it cannot be relitigated again under any guise. I so hold.

Suit No: HCE/1/2017 now being relitigated upon is the same land being the subject matter of suit No: CC/24/2007 and its

appeal as suit No: HCE/1A/2017. Also, regardless of whatever name or nomenclature parties choose to call the land, it is still only one single land which parties know by different names. It is also the same piece of land visited by the first customary Court panel during their visit to the locus in quo.
Instances have arisen in land maters where parties called the land in dispute by different names. It is not new. It was held in Atanda v. Iliasu (2013) 6 NWLR (Pt.1357) 529 that?
?Ascribing different names to land by parties is immaterial for the purpose of proving the identity of the land. Thus, the fact that the parties to a dispute refer to the land in dispute by different names does not necessarily make the land unascertainable.” See also Makanjuola v. Balogun (1989) 1 NWLR (Pt.69) 182.
Also, in the case of Bosinde Ayuya & Ors. v. Chief Naghan Yourin & Ors. (2011) LPELR ? 686 (SC) where the Supreme Court held as follows:
?It is common occurrence in land matters for parties to refer to the same piece of land by different names and also to indicate in their respective plans different features but the bottom

line remains the fact that the parties know the land in dispute otherwise there would be no dispute at all. What is usually in dispute is this ownership of the particular land being claimed by the plaintiff?.
The law is that where parties are ad idem on the exact land in dispute, the fact that different names are ascribed to or that the area where it is located is called different names is immaterial as long as the parties are referring to the same land.

In the resolution of this issue, I have before now held the view that suits No: CC/24/2007 and HCE/1A2016 are one and the same type of suits with the same issue or subject matter with suit No: HCE/1/22017 being instituted. Also, the judgment already delivered in HCE/1A/2016 is a final decision of a Court of competent jurisdiction. That being the case, suit NO: HCE/1/2017 is caught up by the doctrine of estoppel per rem judicatam.
This issue is resolved in favour of the Respondent.

ISSUE NO.2
Whether the trial Court did not deal with the substantive case or issue at the interlocutory stage by holding that the Appellants failed to identify the fragment of Itaro farmland upon

which the judgments in suit Nos: CC/24/2007 and HCE/1A/2016 were based, the trial Court having failed to call oral evidence for the purpose of resolving the conflicting affidavit evidence vis-a-vis the pleadings placed before it by the parties.? (Grounds 2 & 4)

Under this issue, it is the contention of the Appellants that the relevant Court processes to be considered by the trial Court in determining the issue of jurisdiction i.e. plea of estoppel per rem judicatam are the facts deposed to in the facts, the writ of summons and the statement of claim. The statement of defence is not one of the relevant materials for that purpose. See Usman v. Baba (2005) 5 NWLR (Pt.917) 113, Adeyemi v. Opeyori (1976) 9-10 31, Egbuziem v. Egbuziem (2005 4 NWLR (Pt. 916) 488.

As a threshold issue, jurisdiction once raised, all proceedings should abate until it is resolved. See Olabomi v. Oyewole (2016) EJSC 31 page 1-14, APGA v. Anyanwu (2014) 14 WRN 1-45 (SC), the Court held thus:
?It is thus mandatory that Courts decide the issue of jurisdiction before proceeding to consider any other matter? Usually, where a Court?s jurisdiction is

challenged, by the Defence, it is better to settle it one way or the other, before proceeding to hear a case on the merit. Any failure by the Court to determine any preliminary objection or any form of challenge to its jurisdiction is a fundamental breach which renders further step taken in the proceedings a nullify.?

The Lower Court was therefore right in resolving the issue of estoppel per rem judicatam at the earliest opportunity without taking any further step or taking further evidence.

Furthermore, a Court can apart from looking at the writ of summons and statement of claim, is entitled to look at the documents attached to the statement of claim. From the records, the decision of the lower Court was based on the facts contained in the statement of claim and the accompanying documents from loaded therewith.

The much talked about passage and particulars of error reproduced in the ruling being appealed against were not contained in the affidavit evidence for and against the motion. Therefore, the Appellant?s submission that the lower Court ought to take oral evidence neither here nor there.

It is submitted by the Appellants that the lower Court failed to call oral evidence for the purpose of resolving the conflicting affidavit evidence placed before it by the parties in line with the writ of summons and statement of claim.

This submission by the learned Appellant caused is not meritorious with respect to learned counsel. Resolution of any set of conflicts in affidavit evidence can still be resolved by documentary evidence. This is what the lower Court did by making use of documents in the Court?s records in the file. In the case of Bontus NIg. Ltd. v. Sifa Projects (2013) 16 WRN, the Court held ?
?Where there is an authentic documentary evidence which supports one of the affidavits in conflict, the Court is entitled to rely on the document. In a plethoral of authorities, it has been held that it is not only by calling oral evidence that conflict in affidavit evidence can be resolved. That where Court has enough documentary evidence at its disposal, it can suo-motu resolve conflicting affidavit evidence by resorting to documentary evidence. Reference made to EIMSKIP Ltd. v. Exquisite Ind. Ltd. (2003) 14 WRN 77; Bawa v. Phenias (2007) 4 NWLR (Pt.1024) 251.?

In a submission, learned Appellant counsel submitted that the Respondent did not tender an earlier judgment to enable him sustain a successful plea of estoppel per rem judicatam. In Itauma v. Akpe Ime (2000) LPELR 1557 SC, Kalgo JSC said on the purpose of tendering judgments in a trial thus:
?It has been well settled that Court judgments are only used when tendered in a trial to determine and confirm what was actually decided in the case and not to use that evidence given in it for or against any of the parties therein. See Igwego v. Ezeugo (1992) 6 NWLR (Pt. 249) 561 at 587, Ukaegbu v. Ugoji (1991) 6 NWLR (Pt. 196) 127, Adomba v. Odiese (1990) 1 NWLR (Pt.125) 165.?
The judgments CC/24/2007 and HCE/1A/2016 are all part of the Courts records. As such, the Court is entitled to look at the documents in its file while writing a ruling despite the fact that the document was not tendered or admitted as an exhibit at the trial.
Such a document will lead to a just determination of the issues between the parties. I place reliance on this especially on what the Court said in the case of

Oyewole v. Akande & Anor (2009) LPELR ? 2879 SC, whether a Court can examine a document in its file while writing its judgment even when such judgment was not tendered as an exhibit during trial.
?It is not disputed that a Court is entitled to look at a document in its file while writing judgment or ruling despite the fact that the document was not tendered as exhibit at the trial. See Agbaisi v. Ebikorefe (1997) 4 NWLR (Pt.502) 630, Agbahomovo v. Eduyegbe (1999) 3 NWLR (Pt.594) 170. This is an exercise of judicial discretion which must be exercised not only judicially but also judiciously?. Per Adekeye JSC.
Also Ada v. Uku (1977) 5 FCA 218 at 227, Ogbuanyinya v. Okudo & Ors. (1979) 3 LRN 318 at 324, Ladunni v. Kukoyi (1972) 1 ALL NLR (Pt.1) 133 and Salami & Ors. v. Oke (1987) 5 NWLR (Pt.63) 1 at 9, 2 NSCC 1167 at 1173, Abiodun v. A/G Federation (2008) 17 WRN 56.
With the above reasoning of the apex Court, I do not find any merit in the submission of the appellant that the previous judgment relied upon by the Respondent must be tendered before a plea of estoppel per rem- judicata can be sustained.

The authority of Effiom v. Chief Ironbar & Ors. (supra) cited by the appellant does not apply in this circumstance. In support also is the case of GARUBA V. OMOKHODION (2011) 33 WRN P A AT P.11 RATIO 6. Where it was held that:
?It is trite that the Court before whom a proceeding is pending or has been completed takes judicial notice of all the processes filed in the proceeding, as well as, the proceedings itself, including the judgment as the case may be, and so following from this proposition of law, all processes to be relied upon in any application made before the Court are judicially noticed? per Chukwuma-Eneh JSC p. 33 lines 5-10.
In UZODINMA V. IZUNAZO (2012) 2 WRN P.1. RATIO 7, the Supreme Court held that:
?Every Court including the trial Court is entitled to look at and rely on the documents in its file?.

Worthy of note in this appeal is the contention by the Appellant that the Appellant failed to identify the fragment of Itaro farmland upon which the judgment in suits Nos CC/24/2007 and HCE/1A/2016 were based. Also, that by so holding, the trial Court has put the identity of Itaro farm land in issue with respect to suit No: HCE/1/2017 which cannot

be and ought not to be treated at the interlocutory stage as wrongly done by the trial Court.

To defend this suit at the lower Court, the Respondent filed a motion on notice dated 20th day of July 2017 and filed on the 25th day of July 2017 wherein the Respondent sought the leave of the lower Court to strike out/dismiss the Appellants? suit for incompetence and want or lack of jurisdiction. In its Ruling or decision in the said motion HCE/10M/2017, delivered on the 18th day of April 2018, the lower Court granted all the prayers which has necessitated this appeal.

This appeal was heard and determined on a motion on notice on jurisdictional issues argued by both parties amongst which is that suit No HCE/1/2017 is caught up by estoppel per rem judicatam. This is the crux of this appeal. That is the substantial issue the lower Court determined in its Ruling dated the 18th day of April 2018 and hence this appeal. The lower Court did not decide any substantial issue at this interlocutory stage so far in this case. The identity of the fragment of Itaro farmland was not put in issue at the interlocutory stage of this suit as contended by the

Appellant was not even part of the prayers contained in the motion on notice HCE/10M/2017 filed by the Respondent.

This issue 2 is therefore resolved in favour of the Respondent. Consequently, the two issues formulated for argument in this appeal are hereby resolved in favour of the Respondent.

The appeal is beret of any merit. It is accordingly dismissed in its entirely and I hereby affirm and sustain the decision of the lower Court.
Appeal Dismissed.

FATIMA OMORO AKINBAMI, J.C.A.: I agree.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege and opportunity to read the draft of the lead judgment delivered by my learned brother, Paul Obi Elechi JCA and I agree with the reasoning and conclusion reached therein.

?In the result, I dismiss the appeal and affirm the Ruling of the Court below by Hon. Justice A. Adeosun on April 18th 2018. I make no order as to costs.

Appearances:

Ebenezer Gbenga Alabadan, Esq.For Appellant(s)

Dr. B. AbegundeFor Respondent(s)

Appearances

Ebenezer Gbenga Alabadan, Esq.For Appellant

AND

Dr. B. AbegundeFor Respondent