IGHOKPE & ORS v. OGBOGBOYIBO & ORS (2020)

IGHOKPE & ORS v. OGBOGBOYIBO & ORS

(2020)LCN/14585(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, September 04, 2020

CA/AS/31/2018

RATIO

PLEADINGS: THE DOCTRINE OF RES JUDICATA

It is a settled principle of law that where a Court of competent jurisdiction has settled by a final decision the matters in dispute between the parties, none of the parties or their privy may re – litigate that issue again by bringing a fresh action.
The doctrine of res judicata simply implies that the issue(s) arising in the present suit has been definitely settled/resolved by judicial decision, see the case of IKPEAMANAM v UBN PLC & ANOR (2014) LPELR – 22547 (CA).
The Apex Court in ADEWUNMI ADEYEMI –BERO v LAGOS STATE DEVELOPMENT PROPERTY CORP. (2012) LPELR – 20615 (SC), res judicata was defined thus;
“By “res judicata” it means “a thing adjudicated”. In other words, it means “an issue that has been definitively settled by judicial decision”. The three essential elements of this doctrine therefore are: (1) an earlier decisions (sic) on the issue, (2) a final judgment on the merits, and (3) the involvement of the same parties or parties in privy with the original parties. See; Black’s Law Dictionary Ninth Edition p. 1425.” (Underlining Mine)
per ARIWOOLA, JSC (P. 77, PARAS. C – D). . Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

RATIO

PLEADINGS: INSTITUTING AN ACTION IN REPRESENTATIVE CAPACITY

In LADEJOBI v OGUNTAYO (2004) LPELR – 1734, the Apex Court held on nature and effect of instituting a case in representative capacity on behalf of a family or ruling house thus;
“…when an action has been instituted by representatives of a family or a ruling house either in land matters or chieftaincy matters as appropriate and facts are pleaded and reliefs are claimed indicating that it is in respect of the representative or corporate interest in the subject matter, then the real plaintiff or plaintiffs should be seen as the family or ruling house and not the individuals who have sued in a representative capacity. Such individuals appear on record as suing for the class or family or ruling house (as in this case) of which they are members. There should therefore not be any confusion as to who is the entity suing. See Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587. The locus standi should be broadly determined with due regard to the corporate interest being sought to be protected, bearing in mind who the real plaintiff is, or plaintiffs are.”
Per UWAIFO, J.S.C (PP. 15-16, PARAS. G-D)Therefore, in this case the real claimants are all the members of the family and they are bound by whatever decision, whether suing or sued as individuals or in a representative action, the final decision of the Court will affect and direct the selection or appointment of a head of family from whom the affairs of the family property would be administered. . Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

RATIO

PLEADINGS: ESTOPPEL RES JUDICATA AND AN ABUSE OF COURT PROCESS?

Estoppel res judicata and an abuse of Court process?
In RESSEL L. Y DAKOLO & ORS v GREGORY REWANE – DAKOLO & ORS (2011) LPELR – 915 (SC), the Supreme Court held on the rationale of res judicata thus;
“Res judicata estoppel is necessary to ensure the conclusiveness of judicial decisions and that individuals ought to be protected from vexations and multiplicity of suits. See; Odjevwedje v. Echanokpe (1987) 1 NWLR pt 52 p 633; Okpuruwu v Okpokam (1988) 4 NWLR pt 90 p 554; Udo v Obot (1989) 1 NWLR pt 95 p. 59.”
per RHODES – VIVOUR, JSC (P. 20, PARAS. D – E).
SEE ALSO; FALAKI & ORS v FAGBUYIRO & ORS (2015) LPELR – 25848 (CA); COLE v JIBUNOH & ORS (2016) LPELR – 40662 (SC); ORUPABO & ORS v OPUAMBE & ORS (2014) LPELR – 22673 (CA); JIMOH & ORS v AKANDE & ANOR (2009) LPELR – 8087 (SC); DAGACI OF DERE & ORS v DAGACI OF EBWA & ORS (2006) LPELR – 911 (SC).
Another important question in determining if a matter is res judicata or caught by issue estoppel, is if the same evidence would support both suits. The same pre-conditions exist in determining this fact. As I earlier stated, this instant suit would require digging into part of the facts of the issue of the headship of Ajomata which has already been touched on in the lower Courts. Therefore the evidence cannot be entirely the same. In CHIEF ASUQUO OFFIONG OBIKPONG & ORS v OFFIONG ETIM OFFIONG & ORS (1999) LPELR – 10014 (CA), it was held by this honourable thus;
“The doctrine of estoppel per rem judicatum has been built on two pronged rules of public policy expressed in two latin maxims: (a) Interest rei publicia it set finislitium – That is for the common good that there should be an end to litigation or that it is for the general welfare that a period or an end be put to litigation; and (b) Nemo debet bis vexeriproeadem causa – That no one ought to be proceeded against twice if it be proved to the Court that it be for one or the same cause or that no one should be sued or vexed twice on the same ground on the same set of facts, if there has been a final decision of a competent Court. See Ijale v. Leventis Co. Ltd. (1961) 2 SCNLR 386; Agu v Ikewibe (1991) 3 NWLR (Pt. 180) 385 at 412; Ogundiran v. Balogun (1957) WRNLR 51 at 52: Nwosu v Udeaja (1990) 1 NWLR (PT. 125) 188. In Gabriel Madukolu & others (for themselves and on behalf of Umuenala family) v. Johnson Nkemdilim (1962) 2 SCNLR 341, Bairamian F.J observed: “The rule of res judicata is derived from the maxim nemo debet bis vexari pro eadem causa (No one ought to be vexed for the same cause). In a case of res judicata it is the cause that matters and a plaintiff cannot by formulating a fresh claim relitigate the same cause. In determining the question of res judicata, where the judgment relied upon is that of a Native Court, where no pleadings are filed, one must go by the substance as disclosed in the proceedings. If the res, the thing actually and directly in dispute has been already adjudicated by a competent Court it cannot be litigated. One of the criteria of the identity of two suits, in considering a plea of res judicata is the inquiry whether the same evidence would support both.”
per OPENE, JCA (PP. 7 – 9, PARAS. B – A).
See also;BASSEY v VITAMALT PLC (2017) LPELR – 42545 (CA); EZEUGO v AGIM (2015) LPELR – 24572 (CA); MBAS MOTEL LTD v WEMA BANK PLC (2013) LPELR – 20736 (CA); OILSERVE LTD v GLOBAL GAS AND REFINING LTD (2013).
On the issue of names of the parties; it is important to state that the Court noted that during the pendency of the case which started at Elume District Customary Court through Sapele Area Customary Court II to the Appeal customary Court, there were several deaths recorded; the 4th Plaintiff died, the 6th Plaintiff withdrew, the 1st, 2nd and 5th Defendants also died. See page 135, lines 15 -18 of the record. When both the parties are placed side by side and the persons that are deceased and those that withdrew are taken into effect, it is obvious that they were replaced with other family members. The “old” parties are still present in both suits.
The Appellants submission that the parties in Suit No; SACC/IT/2005 sued in their personal capacity though not entirely correct as earlier stated in this judgment, the reliefs sought was not for any of the parties’ personal aggrandizement but for the collective members of matrilineal and patrilineal family of the Ajomata.
I find myself drawn to and I disagree with the blanket conclusion of the lower Court where it held thus;
“Again removing some parties from the old suit and adding new ones as the claimants have done does not whittle down my findings that this action is an abuse of Court process and the issues herein are res judicata.”
See page 257, fourth paragraph, lines 23 -27 of the record. I affirm that the instant suit deals with the alienation of family land without the consent/approval of the family head. However, the issue of the family head must be utterly and absolutely resolved before the issues in this instant appeal can be properly resolved.
It is key to understand the meaning of Estoppel, which has been defined in HALIMA HASSAN TUKUR v GARBA UMAR UBA & ORS (2012) LPELR – 9337 (SC) thus;
“Generally, estoppel means(sic) “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 by silence means “estoppel that arises when a party is under a duty to speak but fails to do so.” See Black’s Law Dictionary, Ninth Edition pages 629 and 630 respectively.”
Per ARIWOOLA, JSC (P. 55, PARAS. A – C).
In ALHAJA MUNINAT ODUMOSU & ANOR v TAIWO OLUWOLE & ANOR (2002) LPELR – 12307 (CA), ADEKEYE, JCA distinguished cause of action estoppel and issue estoppel thus;
Issue estoppel arises where an issue has earlier on been adjudicated upon by a Court of competent jurisdiction and the same issue comes inadvertently in question in subsequent proceedings between the same parties (or the privies), in these circumstances issue estoppel arises. Again in this regard the conditions do not coexist hence cannot apply herein.
Following from the above definitions, the contention in summary of the Appellants is that that the Appellants are not stopped before the appeals in Exhibit C and D are heard and resolved, it would mean, that the land would have been exhausted to/by strangers to their detriment being family members, if nothing is done. The doctrine of “Ubi jus ubi remedium” therefore applies.
I have examined the pending appeals in this Court filed by parties and find that none of the reliefs are directly on the question of sale of land without the consent of head of family, such as the appeal herein but largely on who and from which side of the family can a head can be appointed or selected. What is glaring is that it will be dependent on the outcome of the appeals/cross appeal pending.
Thus, I disagree with the finding of the lower Court that the action is caught by res judicata. See DANLADI v TARABA STATE HOUSE OF ASSEMBLY & 5 ORS (2014) LPELR –SC 418/2013; OGO-OKIRIKA & ORS v WAWE AGBA & ORS (2014) LPELR – 24522 (CA). Therefore, at this stage, this Court would make no such orders touching on the application directly in preserving the res in this appeal, but remit the file to the lower Court for the same Court upon an application of the Applicant(s)/Appellant(s), to make an order that parties in this suit should desist from selling any portion of the land pending the determination of the appeals pending in this Court. In other words, the status quo should be maintained, while also staying the suit sine die pending determination of the appeals pending in this Court. Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

1. JACKSON IGHOKPE 2. WILFRED OKRO 3. IKOYO SUNDAY 4. SAMUEL OJARIKRE 5. MOSES UMUKORO 6. SAMSON UGOLO 7. IKOYO MORRISON APPELANT(S)

And

1. JOHN OGBOGBOYIBO 2. AUTHOR OMOROBA 3. ISAAC OKOBABALA (OGBOGBOYIBO) 4. IKOYO SAMUEL RESPONDENT(S)

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Delta State, Sapele division delivered by HON. JUSTICE R. D. HARRIMAN (MRS) on 7th June, 2017, wherein the Court struck out Suit No. S/115/2016 in its entirety as an abuse of Court process.

The facts of the case as garner from the record are; the Appellants who were the Claimants at the lower Court sued the Respondents as the Defendants seeking the following reliefs;
“1. A declaration that the purported alienation, sale or transfer of Ajomata Family Land by the Defendants without the consent and/or approval by the Head of the Family and principal members is null and void and of no effect whatsoever.
2. A declaration that the allocation and allotment of the Ajomata Family land by the Defendants to themselves without the consent and or approval of the Head of the Ajomata Family (i.e 1st Claimant) and other principal members of the Family is null and void and of no effect whatsoever.
3. The Sum of N10, 000, 000. 00 (Ten Million Naira) as damages for the wrongful and wilful alienation and partitioning of

the Ajomata Family land without the consent of the Head and principal members of the family.
4. An Order of perpetual injunction restraining the Defendants, their assigns, privies and one claiming through them from alienating or without first obtaining the consent or approval of the Head and principal members of the Ajomata Family.
5. Any other suitable reliefs.”

The Appellants are descendants of Ajomata family from Ajomata community in Elume District in Sapele Local Government Area of Delta State and the Appellant is the current head of the Ajomata family while the 2nd – 7th Appellants are principal members of the same family. The Respondents are equally descendants of Ajomata family and who are neither head of family nor principal member of the Ajomata family started alienating, selling and/or transferring the Ajomata land to 3rd parties without the approval and/or consent of the head and principal members of the Ajomata family. The Respondents filed an application dated 18th October, 2016 to strike out or dismiss the Claimants’ claim for abuse of Court process as the issues canvassed by them in the suit were res judicata.

The lower Court considered the arguments of the parties and their counsel upheld the Respondents’ arguments and struck out the suit for abuse of Court process.

Dissatisfied with the ruling, the Appellants filed their Notice of appeal on 13th June, 2017, and their brief of argument on 4th February, 2019 was settled by D. E Agbaga Esq. of D. E. Agbaga & Associates, wherein a sole issue was formulated for determination;
1. Whether the learned trial judge was right to have regarded Exhibits “A”, “B”, “C” & “D” as sufficiently raising and/or sustaining the principles of res judicata.

The Respondents in accordance to the rules of Court also filed their brief of argument on 4th March, 2019 and was settled by G. U. Kerewi Esq. of G. U. Kerewi & Co, who also adopted the sole issue for determination.

APPELLANTS’ ARGUMENTS
It is the submission of the Appellants that the lower Court erred in his judgment and arrived at a wrong conclusion when she generally glossed over the issues put before her and held that same constituted an abuse of Court process.

NDIC v UBN PLC (2015) ALL FWLR (PT. 783) 1790 CA.

The Appellants citing the case of EKAETE BASSEY OKPOSIN & ORS v FOLERENCE ASSAM (MRS) & ORS (2005) ALL FWLR (PT. 282) 1876, PARAS. E – H; NTUKS v NIGERIAN PORTS AUTHORITY (2007) ALL FWLR (PT. 387) 809 S.C, RATIO 2; DIKE – ODU v AMADI (2008) ALL FWLR (PT. 438) 257 CA submit on the definition of res judicata and the conditions necessary to establish the plea of res judicata and except these pre conditions are present, the plea of estoppel per rem judicata will fail immediately.

It is the further submission of the Appellants that the learned trial judge ought not concern herself with whether the Appellants’ claim against the Respondents is true or not, but rather the question put before her is simply whether the issues for determination in the suits are the same, and from the case of the Appellants the issues in the said suits are not the same. CHRISTIAN OUTREACH MINISTRIES INC v COBHAMS (2006) ALL FWLR (PT. 310) 1675 C.A, @ 1693, P. E was cited in contending that a subject matter may give rise to different rights.

Appellants argue under Exhibit A that the parties are not the same with the instant

case and the claims in Exhibit A is for Headship of the Ajomata family, while in the instant suit, the cause of action is for a declaration that the alienation, sale or transfer of the Ajomata family land known and called Idale land by the Defendants without the consent and/or approval of the head of the family and principal members is null and void and of no effect whatsoever; ISHIE v MOWANSO (2001) FWLR (PT. 43) 338 C.A, RATIO: 3, P. 351, PARA. G; SHITTA – BEY & ORS v LAGOS EXECUTIVE DEVELOPMENT BOARD & ORS. (1962) 1 ALL NLR 373.

Under Exhibits B, C & D, it is the contention of the Appellants that the issue on appeal is whether a male or female of either male or female lineage can be head of Ajomata family?

Counsel humbly submits that doctrine of estoppel res judicata will only operate if the parties, the subject matter and the issues were the same in the previous case as those in the action in which the plea of res judicata is raised. If any of these three conditions are absent, the doctrine will not apply as all three must co – exist before res judicata will apply. IBERO v UME – OHANA (1993) 2 KLR 66 was cited in aid.

CENTRAL BANK OF NIGERIA v AHMED (2001) FWLR (PT. 56) 670, P. 1691, PARAS. F – G was cited in further submitting that to establish whether or not there is an abuse of Court process, the Court should ask itself whether the person has multiplied his action simply to irritate, harass and annoy the opponent and if he has acted from improper motives or want in bonafide.

On what constitutes an abuse of Court; IKINE v EDJERODE (2002) FWLR (PT. 92) 1775; R- BENKAY (NIG) LTD v CADBURY (NIG) PLC (2012) ALL FWLR (PT. 631) 1450 S.C, RATIO: 2, P. 1464, PARAS. A – B, D, G, PP. 1466 – 1467, PARAS. A – A; OGUEBEGO v PDP (2016) ALL FWLR, (PT. 822) 1701 S.C., RATIO: 6 were cited.

On the whole, the Appellants submit that having shown in their arguments that the Respondents were unable to sustain the plea of estoppel per rem judicata, the Court erroneously held and struck out the suit as an abuse of Court process. Appellants urge the Court to set aside the ruling of the lower Court and enter judgment in favour of the Appellants.

RESPONDENTS SUBMISSION
The Respondents, in describing what constitutes Exhibit A and B;

enumerating the Appellants’ Cross Appeal of Appeal no. CA/B/128/2015; JOHN OGBOGBOYIBO & 4 ORS VS EMMANUEL EMEKAGBON & 6 ORS submits that the writ of summons and the statement of claim of the Appellants at the lower Court as contained on pages 1 – 6 of the Record of Appeal sought to re litigate the issues which are already before the Court and the lower Court clearly saw through this attempt even though they tried to bring in some new parties on both sides to join some old parties in the preceding suits.

The Respondents further submit that both the parties or their privies, the subject matter and the issues formulated are the same, therefore the principle of res judicata applies and the lower Court rightly struck out the suit as an abuse of Court process.

ABUBAKAR v BEBEJI OIL & ALLIED PROD. LTD & ORS (2007) VOL. 147 LRCN PAGE 1091 AT PAGES 1132 KP, 1132UEE, 1132JJ & 1133AK page 1138UEE; OBASI v M. BANK (2005) VOL. 124 LRCN 392 AT 399 A. F; ALAFIA & ORS v GBODE VEN NIG. LTD & ORS (2016) 253 LRCN page 75 at 113EEJJ & 114; ELF PET. NIG LTD v UMAH & ORS. (2018) VOL. 276 LRCN Page 1 at pages 36Z;

OKPOSIN v ASSAM (2005) VOL. 131 LRCN page 2561 at 2570F was heavily relied on by the Respondents in defining res judicata and the aim of the principle, the conditions necessary and the tricks parties play to beat the applicability of the principle.

In conclusion, it is the submission of the Respondents that the lower Court was right in striking out the suit and they humbly urge the Court to dismiss this appeal in its entirety.

RESOLUTION
The bone of contention in this appeal is; whether the suit from which this Appeal emanates is caught by res judicata as held by the lower Court in light of Exhibits A, B, C & D.
It is a settled principle of law that where a Court of competent jurisdiction has settled by a final decision the matters in dispute between the parties, none of the parties or their privy may re – litigate that issue again by bringing a fresh action.
The doctrine of res judicata simply implies that the issue(s) arising in the present suit has been definitely settled/resolved by judicial decision, see the case of IKPEAMANAM v UBN PLC & ANOR (2014) LPELR – 22547 (CA).
The Apex Court in

ADEWUNMI ADEYEMI –BERO v LAGOS STATE DEVELOPMENT PROPERTY CORP. (2012) LPELR – 20615 (SC), res judicata was defined thus;
“By “res judicata” it means “a thing adjudicated”. In other words, it means “an issue that has been definitively settled by judicial decision”. The three essential elements of this doctrine therefore are: (1) an earlier decisions (sic) on the issue, (2) a final judgment on the merits, and (3) the involvement of the same parties or parties in privy with the original parties. See; Black’s Law Dictionary Ninth Edition p. 1425.” (Underlining Mine)
per ARIWOOLA, JSC (P. 77, PARAS. C – D).

This Court would examine the parties and reliefs in each of the similar cases said to be pending with a view to ascertain if similar or would affect the outcome of the appeals filed before this appeal or if there is an issue that has been dealt with in any of the cases.

It is on the record before this Court that the parties in Suit No. SAC/IT/2005 are;
BETWEEN
1. JOHN OGBOGBOYIBO
2. SAMUEL O. OJOKOLO
3. MICHEAL OSUME – PLAINTIFFS
4. TUNDE OMORONA
5. SIMON AKPOFUNURE
AND

Emmanuel Emekagbon
2. IkoyoAkatakpo
3. Samson Ugolo
4. Jackson Ighokpe – DEFENDANTS
5. John Ojarikre
6. Moses Umukoro
7. Taye Ugbeghele

At page 330 -331 of the record is Exhibit A; the plaintiffs in Suit No. SAC/IT/2005 prayed for the following reliefs;
“A declaration that;
i. All the defendants are of female lineage in the Ajomata family.
ii. Under Okpe Custom the defendants are not competent to represent or assume leadership position in the Ajomata family when there are leading male children.
iii. The purported election of some of the defendants as Executive members of the Ajomata family is null and void.
iv. No meeting was held on the purported election day – 22nd March, 2003.
v. The Plaintiffs are the people entitled to preside over Ajomata family meetings, affairs etc, and an order for
vi. Accounts
vii. Injunction. (UNDERLINING MINE)

The customary Court of Delta State, Sapele Area in its Judgment held thus;
“To conclude, we enter judgment as follows;
1) It is hereby declared that the defendants are children of females their

respective lineage of the Ajomata family.
2) By the custom of Okpe people, children of female lineage are NOT competent to be heads of Ajomata family and cannot deal with lands and monies of Ajomata family without the cooperation of their siblings of male linage (sic).
3) The purported constitution of another Executive Committee different from the one led by the 1st Plaintiff is hereby declared null and void.
4) The claim to render accounts is hereby dismissed.
5) Defendants are by themselves or persons claiming through them hereby restrained from dealing with Ajomata land in manner that contravenes the authority of the family leadership.
6) In spite of the long history of this matter, we take into consideration the fact that plaintiffs and defendants are one family – children of one common progenitor and hereby award nominal costs of N1,000 (one thousand naira) in the favour of the plaintiffs and against the defendants. (Underlining mine)
See pages 342 – 343 of the record, which forms part of Exhibit A.

On appeal to the Customary Court of Appeal, Delta state, Warri division with the following issues for

determination;
“i. Whether under the practice, tradition of Ajomata family, a male from a female lineage in the family cannot be head of the Ajomata family like their male counterpart from male lineage of the family.
ii. Whether the trial Court was correct when she held that the position of the headship and chairman of Ajomata management committee are the same thereby giving a wrong interpretation to Exhibit D
iii. Whether the declaration made by the trial Court in the first relief she granted in her judgment was not intended to discriminate against the Appellants in their Ajomata family.

At page 146-147/358-359 of the record Exhibit A, the Customary Court of Appeal, Delta State, Warri division held thus;
“On the whole, this appeal succeeds only on issue one, it follows that the order of the trial Court declaring and/or disqualifying males of female lineage of Ajomata as heads of the family in its judgment which is the subject of this appeal is set aside. We affirm all other orders of the trial Court.”

In Exhibit C, which is the Notice of Appeal brought by the John Ogbogboyibo & Ors (now Appellants) against

part of the decision of the Customary Court of Appeal, Warri in Suit No. SACC/IT/2006 & APPEAL NO. DCCA/42/2013, seeking the following relief;
“Setting aside the decision/Judgment that a male from the patrilineal or matrilineal linage of Ajomata Family can be the head of family and affirming the judgment of the trial Court.”
See pages 149 and/or 200 of the record.

Exhibit D; the Notice of Cross Appeal brought by Emmanuel Emekagbon & Ors (now the Cross Appellants) against part of the decision of the Customary Court of Appeal, Warri in Suit No. SACC/IT/2006 & APPEAL NO. DCCA/42/2013, sought the following reliefs;
a) Setting aside the findings of the lower Court which affirmed the trial Court finding that the 1st Cross Respondent was the Head of Ajomata family when the action ensued.
b) Making a finding that Ikoyo Akatakpo “2nd Cross Appellant” now deceased was the Head of Ajomata family when this action ensued.
c) A finding that the 4th Cross Appellant is the current Head of Ajomata family.
d) Setting aside the nullification of the Caretaker Committee set up in Exhibit “D”
Setting aside that part of the lower Court judgment which resolved issues (ii) and (iii) in the Appellants brief before the lower Court against the Appellants’ now the Cross Appellants
See pages 152 and/or 203 of the record.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Having stated the background history and the necessary facts that cumulated in the Ruling that is now on appeal, the necessary particulars to consider in this particular suit (under appeal); Suit No: S/115/2016 are the parties and the reliefs therein;
The parties in this suit are;
BETWEEN
1. JACKSON IGHOKPE
2. WILFRED OKRO
3. IKOYO SUNDAY
4. SAMUEL OJARIKRE – CLAIMANTS
5. MOSES UMUKORO
6. SAMSON UGOLO
7. IKOYO MORRISON
(for and on behalf of the Ajomata members family excluding the Defendants and their family/supporters)
AND
1. JOHN OGBOGBOYIBO
2. AUTHOR OMOROBA – DEFENDANTS
3. ISAAC OKOBABALA (OGBOGBOYIBO)
4. IKOYO SAMUEL

The claimants in this suit claimed the following against the Defendants;
1. A declaration that the purported alienation, sale or transfer of the Ajomata family land by the Defendants without the consent and or approval of the

head of the family and principal members is null and void and of no effect whatsoever.
2. A declaration that the allocation and allotment of the Ajomata family land by the Defendants to themselves/families without the consent and or approval of the head of the Ajomata family (i.e 1st Claimant) and other principal members of the family outside the Deed is null and void and of no effect whatsoever.
3. The sum of N100,000,000 (One hundred Million naira) as damages for the wrongful and willful, alienation and partitioning of the Ajomata family land without the consent of the head and principal members of the family according to the 1965 Deed.
4. An Order of perpetual injunction restraining the Defendants, their assigns, privies and any one claiming though(sic) them from alienating or further alienating the Ajomata family land in dispute or any part thereof without first obtaining the consent or approval of the head and Principal members of the Ajomata family.
5. Any other suitable relief. (Underlining mine)

The Appellants have summarily submitted that the claims in Exhibit A is for the Headship of the Ajomata family, and in the instant

suit, the cause of action/claims is for a declaration that the alienation, sale or transfer of the Ajomata family land known and called Idale land without the consent and or approval of the head of the family and principal members is null and void and of no effect whatsoever.

The reliefs herein are different from the reliefs in the other suits which are on appeal therefore, the condition precedents of res judicata do not co-exist in this regard.

However, the lower Court failed to avert its mind to the fact that the reliefs prayed for herein are dependent and an off-shoot of the “declaration of the accredited family head’’. Each relief is linked to an approval and/or consent of the family head.

The issue of “family head’’ was already laid to rest in Exhibit A; the judgment of the Customary Court of Delta State and on appeal the order of the trial Court declaring and/or disqualifying males of female lineage of Ajomata as heads of the family in its judgment was set aside; Exhibit B. As earlier stated, Exhibit C & D are appeals against the judgment of the Customary Court of Appeal.

For a Court to resolve the issues of this instant suit, it would have to delve into the issue of “who is the head of the Ajomata family (the headship of Ajomata family is)”, that can give consent to any sale of land thereby leading to a re – litigation of the issues in Suit No; SACC/IT/2005. This is one of the issues to be settled in the pending appeals herein.

The fact is that the outcome of the appeal against the customary Court of appeal in Exhibit C will end up putting the issue of who and where any (the) head of the Ajomata family can emanate from. Until this is done, the Plaintiff/Appellant in this present appeal will have to await and abide by the decision of the appeal Court.

Furthermore, three of the Defendants in Exhibit A are the Claimants herein; SAMSON UGHOLO, JACK IGHOLOYE; MOSES UMUKORO though now suing as representatives of the AJOMATA Family on their behalf and their families excluding the Defendants.
They had been sued in their personal capacity in the previous suit but in respect of the same family issue of the accredited headship and whether it is from the paternal or maternal child of the family that qualifies to be appointed to be

the family head?
In LADEJOBI v OGUNTAYO (2004) LPELR – 1734, the Apex Court held on nature and effect of instituting a case in representative capacity on behalf of a family or ruling house thus;
“…when an action has been instituted by representatives of a family or a ruling house either in land matters or chieftaincy matters as appropriate and facts are pleaded and reliefs are claimed indicating that it is in respect of the representative or corporate interest in the subject matter, then the real plaintiff or plaintiffs should be seen as the family or ruling house and not the individuals who have sued in a representative capacity. Such individuals appear on record as suing for the class or family or ruling house (as in this case) of which they are members. There should therefore not be any confusion as to who is the entity suing. See Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587. The locus standi should be broadly determined with due regard to the corporate interest being sought to be protected, bearing in mind who the real plaintiff is, or plaintiffs are.”
Per UWAIFO, J.S.C (PP. 15-16, PARAS. G-D).

Therefore, in this case the real

claimants are all the members of the family and they are bound by whatever decision, whether suing or sued as individuals or in a representative action, the final decision of the Court will affect and direct the selection or appointment of a head of family from whom the affairs of the family property would be administered.

The poser in this appeal is; whether this is really a res judicata scenario?
This calls for a perusal of the reliefs herein, there is an appeal filed in the Benin division of Court of Appeal now in Asaba division due to the new inauguration of a new Division on 3rd February, 2020.
JOHN OGBODOYINBO & 4 ORS for (themselves and on Behalf of Ajomata family of Idale-Elume excluding the Defendants), the reliefs are;
Setting aside the decision/Judgment that a male from the patrilineal or matrilineal linage of Ajomata Family can be the head of family and affirming the judgment of the trial Court.
See; page 199 of the Record.

At page 201, is the Notice of Cross Appeal by the defendants/Respondent/Cross Appellants- Emmanuel Emekagbon & 6 Ors, the reliefs are;
a) Setting aside the findings of the lower Court

which affirmed the trial Court finding that the 1st Cross Respondent was the Head of Ajomata family when the action ensued.
b) Making a finding that Ikoyo Akatakpo “2nd Cross Appellant” now deceased was the Head of Ajomata family when this action ensued.
c) A finding that the 4th Cross Appellant is the current Head of Ajomata family.
d) Setting aside the nullification of the Caretaker Committee set up in Exhibit “D”
e) Setting aside that part of the lower Court judgment which resolved issues (ii) and (iii) in the Appellants brief before the lower Court against the Appellants’ now the Cross Appellants.

From the Notices of appeal filed before this Court, it is obvious that the issue of “who occupies the seat of the head of family is still hot in contention’’.

The Jackson Ighokpe & 6 Ors group suing in representative had filed an action in S/115/2016 before HARRIMAN, J and in a motion on notice is seeking for an interlocutory injunction, asking that the defendants and privies or anyone claiming through them be restrained from further altering the character of the land by selling

same to 3rd parties also from parading themselves or holding themselves out as the accredited representatives of the Ajomata family, this was opposed as res judicata and the lower Court upheld the objection.

From the above the issue is to “preserve the property of the family” while the main issue of headship is awaiting the Court of Appeal’s decision, but has been approached by filing this suit at the High Court. It is part of the contentions that a head of family is in charge of the family land for the whole family and in conjunction with principal members, he presides over affairs connected to the land, therefore it is this Court that can determine the issue.

Having analysed all the respective suits and their parties and reliefs together with the suit on appeal and the various appeals pending in this Court, can it be said that this matter falls under Estoppel res judicata and an abuse of Court process?
In RESSEL L. Y DAKOLO & ORS v GREGORY REWANE – DAKOLO & ORS (2011) LPELR – 915 (SC), the Supreme Court held on the rationale of res judicata thus;
“Res judicata estoppel is necessary to ensure the

conclusiveness of judicial decisions and that individuals ought to be protected from vexations and multiplicity of suits. See; Odjevwedje v. Echanokpe (1987) 1 NWLR pt 52 p 633; Okpuruwu v Okpokam (1988) 4 NWLR pt 90 p 554; Udo v Obot (1989) 1 NWLR pt 95 p. 59.”
per RHODES – VIVOUR, JSC (P. 20, PARAS. D – E).
SEE ALSO; FALAKI & ORS v FAGBUYIRO & ORS (2015) LPELR – 25848 (CA); COLE v JIBUNOH & ORS (2016) LPELR – 40662 (SC); ORUPABO & ORS v OPUAMBE & ORS (2014) LPELR – 22673 (CA); JIMOH & ORS v AKANDE & ANOR (2009) LPELR – 8087 (SC); DAGACI OF DERE & ORS v DAGACI OF EBWA & ORS (2006) LPELR – 911 (SC).
Another important question in determining if a matter is res judicata or caught by issue estoppel, is if the same evidence would support both suits. The same pre-conditions exist in determining this fact. As I earlier stated, this instant suit would require digging into part of the facts of the issue of the headship of Ajomata which has already been touched on in the lower Courts. Therefore the evidence cannot be entirely the same.
In CHIEF ASUQUO OFFIONG OBIKPONG & ORS v OFFIONG ETIM OFFIONG & ORS

(1999) LPELR – 10014 (CA), it was held by this honourable thus;
“The doctrine of estoppel per rem judicatum has been built on two pronged rules of public policy expressed in two latin maxims: (a) Interest rei publicia it set finislitium – That is for the common good that there should be an end to litigation or that it is for the general welfare that a period or an end be put to litigation; and (b) Nemo debet bis vexeriproeadem causa – That no one ought to be proceeded against twice if it be proved to the Court that it be for one or the same cause or that no one should be sued or vexed twice on the same ground on the same set of facts, if there has been a final decision of a competent Court. See Ijale v. Leventis Co. Ltd. (1961) 2 SCNLR 386; Agu v Ikewibe (1991) 3 NWLR (Pt. 180) 385 at 412; Ogundiran v. Balogun (1957) WRNLR 51 at 52: Nwosu v Udeaja (1990) 1 NWLR (PT. 125) 188. In Gabriel Madukolu & others (for themselves and on behalf of Umuenala family) v. Johnson Nkemdilim (1962) 2 SCNLR 341, Bairamian F.J observed: “The rule of res judicata is derived from the maxim nemo debet bis

vexari pro eadem causa (No one ought to be vexed for the same cause). In a case of res judicata it is the cause that matters and a plaintiff cannot by formulating a fresh claim relitigate the same cause. In determining the question of res judicata, where the judgment relied upon is that of a Native Court, where no pleadings are filed, one must go by the substance as disclosed in the proceedings. If the res, the thing actually and directly in dispute has been already adjudicated by a competent Court it cannot be litigated. One of the criteria of the identity of two suits, in considering a plea of res judicata is the inquiry whether the same evidence would support both.”
per OPENE, JCA (PP. 7 – 9, PARAS. B – A).
See also;BASSEY v VITAMALT PLC (2017) LPELR – 42545 (CA); EZEUGO v AGIM (2015) LPELR – 24572 (CA); MBAS MOTEL LTD v WEMA BANK PLC (2013) LPELR – 20736 (CA); OILSERVE LTD v GLOBAL GAS AND REFINING LTD (2013).
On the issue of names of the parties; it is important to state that the Court noted that during the pendency of the case which started at Elume District Customary Court through Sapele Area Customary

Court II to the Appeal customary Court, there were several deaths recorded; the 4th Plaintiff died, the 6th Plaintiff withdrew, the 1st, 2nd and 5th Defendants also died. See page 135, lines 15 -18 of the record. When both the parties are placed side by side and the persons that are deceased and those that withdrew are taken into effect, it is obvious that they were replaced with other family members. The “old” parties are still present in both suits.
The Appellants submission that the parties in Suit No; SACC/IT/2005 sued in their personal capacity though not entirely correct as earlier stated in this judgment, the reliefs sought was not for any of the parties’ personal aggrandizement but for the collective members of matrilineal and patrilineal family of the Ajomata.
I find myself drawn to and I disagree with the blanket conclusion of the lower Court where it held thus;
“Again removing some parties from the old suit and adding new ones as the claimants have done does not whittle down my findings that this action is an abuse of Court process and the issues herein are res judicata.”
See page 257, fourth paragraph, lines 23 -27 of the record.

I affirm that the instant suit deals with the alienation of family land without the consent/approval of the family head. However, the issue of the family head must be utterly and absolutely resolved before the issues in this instant appeal can be properly resolved.
It is key to understand the meaning of Estoppel, which has been defined in HALIMA HASSAN TUKUR v GARBA UMAR UBA & ORS (2012) LPELR – 9337 (SC) thus;
“Generally, estoppel means(sic) “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 by silence means “estoppel that arises when a party is under a duty to speak but fails to do so.” See Black’s Law Dictionary, Ninth Edition pages 629 and 630 respectively.”
Per ARIWOOLA, JSC (P. 55, PARAS. A – C).
In ALHAJA MUNINAT ODUMOSU & ANOR v TAIWO OLUWOLE & ANOR (2002) LPELR – 12307 (CA), ADEKEYE, JCA distinguished cause of action estoppel and

issue estoppel thus;
Issue estoppel arises where an issue has earlier on been adjudicated upon by a Court of competent jurisdiction and the same issue comes inadvertently in question in subsequent proceedings between the same parties (or the privies), in these circumstances issue estoppel arises. Again in this regard the conditions do not coexist hence cannot apply herein.
Following from the above definitions, the contention in summary of the Appellants is that that the Appellants are not stopped before the appeals in Exhibit C and D are heard and resolved, it would mean, that the land would have been exhausted to/by strangers to their detriment being family members, if nothing is done. The doctrine of “Ubi jus ubi remedium” therefore applies.
I have examined the pending appeals in this Court filed by parties and find that none of the reliefs are directly on the question of sale of land without the consent of head of family, such as the appeal herein but largely on who and from which side of the family can a head can be appointed or selected. What is glaring is that it will be dependent on the outcome of the appeals/cross appeal

pending.
Thus, I disagree with the finding of the lower Court that the action is caught by res judicata. See DANLADI v TARABA STATE HOUSE OF ASSEMBLY & 5 ORS (2014) LPELR –SC 418/2013; OGO-OKIRIKA & ORS v WAWE AGBA & ORS (2014) LPELR – 24522 (CA).

Therefore, at this stage, this Court would make no such orders touching on the application directly in preserving the res in this appeal, but remit the file to the lower Court for the same Court upon an application of the Applicant(s)/Appellant(s), to make an order that parties in this suit should desist from selling any portion of the land pending the determination of the appeals pending in this Court. In other words, the status quo should be maintained, while also staying the suit sine die pending determination of the appeals pending in this Court.

The appeal has merits and is allowed. Accordingly, I make the following orders;
1. The ruling of the High Court of Delta State, Sapele division delivered by HON. JUSTICE R. D. HARRIMAN (MRS) on 7th June, 2017 striking out the case is hereby set aside
2. The case file be remitted to the Chief Judge of Delta State High Court to

be assigned to the trial judge seized of the case for quick dispensation of the action.
3. Upon the application of the Applicant(s)/Applicant(s) herein the Status quo should be maintained pending the determination of appeals.
Cost of N200,000 is awarded against the Respondents.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I had the privilege of reading in draft the leading judgment prepared by my learned brother, ABIMBOLA O. OBASEKI-ADEJUMO; in the instant appeal.
This is to state that I am in total agreement with the judgment of his lordship in the appeal and have nothing useful to add by way of contribution.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree and abide with the lead Judgment inclusive of its consequential order therein that His Lordship of the trial Court shall, upon application, stay the matter sine die pending the Resolution of the pending appeals before this Court in respect of the subject land between the parties.

Appearances:

E. Agbaga, Esq. For Appellant(s)

U. Kerewi For Respondent(s)