M. O. ODUTOLA VS CHIEF ZAACHEUS ODERINDE (BALE OF IJAKO)-2004

M. O. ODUTOLA VS CHIEF ZAACHEUS ODERINDE (BALE OF IJAKO)

(2004) LCN/3150(SC)

In the Supreme Court of Nigeria

Sunday, May 2, 2004

Case Number: SC. 144/1999

RATIO

APPEAL: FILING AND SIGNING OF JOINT NOTICE OF APPEAL BY COUNSEL

The main issue here is whether, two independent counsels can represent a party in a proceeding. I do not think so. It is not the practice of Legal Practitioners to compete for a party. In cases where the Court orders a consolidation because of convenience or expediency in multifaceted suits, however the number of suits there may be, when consolidated, depending on the pleadings and the burdens of proof thereof, there will be one plaintiff or one set of plaintiffs and one defendant or one set of defendants. In such situation, problem of legal representations would necessarily arise because each unit of the consolidated cases may have its own independent Legal Practitioner. In Olu of Warri vs. Chief Sam Warri Essi and Shell BP Petroleum Development Co. of Nigeria Ltd (1958) 3 F.S.C 94 a similar issue and complication arose in the cases as consolidated into one, it was there stated that where several plaintiffs sue jointly, they should appear by the same counsel. The one counsel represents all the plaintiffs in the suits consolidated. The Learned Author of Civil Procedure in Nigeria Fidelis Nwadialor SAN hinted at this problem and advised at page 612 that “where the plaintiffs had earlier retained different counsel, they may agree that one of these counsel should lead the others. This may be the counsel in the action that was commenced first or the most senior or experienced one among them. It may also be the counsel that may bear the cost or brunt of the consolidated action.” The difficulty experienced above represents some of the challenges in consolidation and some of the factors to be taken into consideration before a Court make an order for consolidation. In the case of Iloabuchi v. Ebigbo (2000) FWLR (Pt. 17) 78(2000) 8 NWLR (Pt. 668) 197 Ogundare JSC gave an insight to these problems and said: There are circumstances, however, that will militate against consolidation of two of more pending actions. One such circumstance is where the plaintiff in one action is the same person as the defendant in another action unless one action can be ordered to stand as a counterclaim in another action. Another is where different legal practitioners have been briefed as where there are several actions by different plaintiffs represented by different legal practitioners. As to the application of this latter exception see the case of Healey vs. Waddington & Sons Ltd, (1954) 1 WLR 688; (1954) 1 All ER 861. Consolidation will also be refused where it would likely cause embarrassment at the trial such as where the actions are by different plaintiffs, based on the same libel, and the defences are different – See Daws vs. Daily Sketch (supra). In no circumstance can two counsels represent a side. It does not happen and if it does, the result would be chaos and confusion which the law forbids. The law is all about order not confusion. Back to the so called “joint Notice of Appeal”, signed by M. O. Abudu and B. F. Awonuga dated 20/1/2012 and filed 25/1/15. The situation is exactly what the law forbids and cannot be condoned or tolerated that two independent lawyers would contend on one side. The same rule applies to processes filed in Court for each side in the consolidated suit. After judgment had been given, any side dissatisfied, will filed Notice of Appeal by one Legal Practitioner for the side as discussed above. There is nothing like Joint Notice of Appeal. Any such attempt is incompetent and no lawful proceedings could be founded on it. PER OKORONKWO, J.C.A.

JUSTICES:

IDRIS LEGBO KUTIGI JUSTICE, SUPREME COURT

UTHMAN MOHAMMED JUSTICE, SUPREME COURT

ALOYSIUS IYORGYER KASTINA-ALU JUSTICE, SUPREME COURT

SAMSON ODEMWINGIE UWAIFO JUSTICE, SUPREME COURT

U.A KALGO JUSTICE, SUPREME COURT

APPELLANTS

1. M. O. ODUTOLA

RESPONDENTS

1. CHIEF ZAACHEUS ODERINDE (BALE OF IJAKO)2. NATHANIEL OLAOMO3. J. K. OGUNSEYE(For themselves and on behalf of Ijako Community, Otta)

L. KUTIGI, JSC: Delivering the Judgement of the Court

In the Ogun State High Court holden at Otta, the Plaintiffs claimed against the Defendant –

(1.) to be the persons entitled to the Statutory Right of Occupancy in respect of the land situate, lying and being at Ijako village near Otta, Ogun State of Nigeria;

(2.) the sum of N200,000.00 against the 1st Defendant being damages for trespass etc.

(3.) injunction restraining the 1st Defendant, his agents, servant, or privies from committing further trespass and or entering the said land etc.

(4.) injunction restraining the 2nd, 3rd and 4th Defendants from accepting and or approving and granting and or registering and or processing any application for certificates of occupancy from the 1st Defendant etc.

It should be noted that the Defendant/Appellant became the sole Defendant upon the withdrawal of the claim against the other Defendants who were then struck-out from the suit.

After the parties had filed and exchanged their pleadings, the Defendant filed a Motion on Notice praying for an order setting down for hearing the plea of “res judicata” raised by him in his pleadings. The motion was supported by an affidavit to which were attached judgments in suits No. 23/CV/75 (Exhibit A) and No. AB/13A/84 (Exhibit B). The Defendant claimed that the plea was based on the two judgments.

The Plaintiffs countered by filing a counter affidavit to which several documents including a Survey Plan No. OG.790176 were attached.

After hearing argument from Counsel on both sides the learned trial judge in a reserved Ruling held that on the materials before him the plea of “res judicata” was not established. Consequently the application was dismissed.

Dissatisfied with the Ruling, the Defendant appealed to the Court of Appeal holden at Ibadan. In a unanimous judgment the Court of Appeal held that the appeal was completely devoid of merit and dismissed it accordingly.

Still aggrieved by the decision of the Court of Appeal, the Defendant has further appealed to this Court. Eight (8) Grounds of Appeal were filed from which five (5) issues have been distilled in the Appellant’s brief for determination by this Court. I have read them all.

However, having regard to the interlocutory nature of the application, it is my considered view that the single most important issue relevant in this appeal is Defendant’s issue (5) which reads –

“(5.) Whether the Court of Appeal was right in not upholding the plea of “estoppel per rem judicatam.”

In obedience to the Rules of Court, the parties through their Counsel filed and exchanged briefs of argument. These were adopted at the hearing of the appeal during which additional oral submissions were made and additional authorities cited.

Before considering issue (5) of the appeal above, I will have to rule first on the Preliminary Objection to the hearing of the appeal raised by the Plaintiffs/Respondents in their brief. Mr. Alawode learned Counsel for the Plaintiffs contended that having regard to the nature of the proceedings before the Court of Appeal and the order made thereupon, the Notice of Appeal filed by the Defendant on 20/9/99, concerned an interlocutory decision of that Court and in which case the Notice of Appeal ought to have been filed within 14 days of the judgment as provided for under Section 31(2) of the Supreme Court Act. He said the Court of Appeal in this case delivered its judgment on 24/6/99. The appeal filed on 20/9/99 is therefore incompetent and ought to be struck out. He cites IBE V. ONUORA (1996) 9 N.W.L.R. (PT. 474) 624 in support.

Alhaji Ayoola learned Counsel for the Defendant on the other hand argued that the decision of the Court of Appeal is final and not interlocutory, because as far as that Court is concerned it has nothing more to do with the case. It is a final decision by the Court of Appeal in an appeal brought before it from an interlocutory decision of the High Court, and there was nothing left for the Court of Appeal to do in the case. She said the leave granted to the Defendant by the Court of Appeal on 14/9/99 and the Notice of appeal filed on 20/9/99 were well within the three (3) months period prescribed by section 31(2) of the Supreme Court Act.

That the mere fact that the appeal to the Court of Appeal was from an interlocutory decision of the High Court did not make the decision of the Court of Appeal interlocutory but final.

I say straight away that I endorse the submissions of learned Counsel for the Defendant/Appellant above. The test which the Court adopts in deciding whether an order or decision is interlocutory or final was finally put to rest by this Court in AKINSANYA V. U.B.A. LTD (1986) 4. N.W.L.R. (PT 35 (273). An order or decision is final when it finally disposes of the rights of the parties, that is to say, the decision or order given by the Court is such that the matter would not be further brought back to the Court itself, as in this case, The preliminary objection to the competency of the appeal is accordingly over-ruled. It is dismissed.

I will now return to issue (5) of the appeal already reproduced above.

Alhaja Ayoola submitted that on the totality of the materials before the Court of Appeal, that Court was wrong in not upholding the plea of “estoppel per rem judicatem”. She said in the earlier suit No, 23/CV/75 the Plaintiffs claimed for a declaration of title to the area of land verged RED on their plan, and bounded “on the 1st side by Arinko land, on the 2nd side by Isaka land, on the 3rd side by Tetiku land, on the 4th side by Isorosi and Oko Osi land.” And in the present suit No. HCJ/6/89 the Plaintiffs are claiming a declaration that they are the persons entitled to a Statutory Right of Occupancy of the same vast piece or parcel of land bounded by traditional boundary men, Arinko, Isaka, Tetiku and Isorosi and Oko Osi.” It was submitted that the basis for the claim of title in both suits is the same, namely the Plaintiffs claimed to be descendants of the original owner IJAKO through one EBISA. That in suit No. 23/CV/75, it was decided that Plaintiffs are not the descendants of Ijako but that it was the FALUYI family, (the grantors of the Defendant), that are descendants of Ijako through Ebisa.

That the issue can therefore not be relitigated by the Plaintiffs in the present suit. They are “estopped per rem judicatam”. It was further submitted that the parties in the two suits are the same, the Defendant being a privy in estate to Faluyi Family who were co-defendants in 23/CV/75 who joined issues with the Plaintiffs on the ownership of Ijako land verged RED on the plan. She said the judgment in 23/CV/75 is final and subsisting and the Defendant has therefore fulfilled all the conditions for the plea of “estoppel per rem judicatam” to succeed. She referred to the case of MADUKOLU &. ORS V. NKEMDILLM (1962) 1 ALL N.L.R. 587 at 588; (2001) 3 SCM, 185 and to Section 54 of the Evidence Act. The Court was urged to allow the appeal.

Responding, Mr. Alawode for the Plaintiffs submitted as follows-

A plea of “res judicata” cannot be considered in vacuo and without the surrounding background facts as agreed or conceded or facts as found by the Court.

The facts which a party raising a plea of res judicata” must establish in a case in order to sustain the plea are facts showing that-

(a.) the parties in the action in which the plea is raised are the same as in the previous case;

(b.) the decision between the parties is in respect of the same cause of action, and

(c.) The subject matter of the action in which the plea is raised is the same as in the previous case.

Unless all the conditions above are satisfied, a plea of “res judicata” must be rejected.

A number of cases were cited in support which include IYAJI V. EYIGEBE (1987) 3 N.W.L.R (PT.61) 523 AT 532, AJAO V. AKANO (1988) 1. N.W.L.R. (PT.71) 431 at 440 ARO V. FABOLUDE (1983) 2 SC 73 at 84, 85.

The respondent based his plea of res judicata on the judgments in suit No. 23/CV/75 and Appeal No. AB/13A/84.

On whether the parties in this case are the same as the parties in suit No. 23/CV/75, the High Court ruled that although the Plaintiffs (in 23/CV/75 and HCT/6/89) are the same, he cannot precisely say that the Defendants are the same and which can only be settled or established by evidence. The Court of Appeal agreed and did not reverse the finding.

The Plaintiff who claimed to be a privy in estate of Faluyi family failed to establish it as his purported purchase Receipt (Exhibit E) showed no plan or size of the land allegedly sold to him by his vendors.

In suit No. 23/CV/75, the cause of action was the violation of Plaintiffs’ right in respect of the area verged GREEN on Survey Plan No.OG/790/76. In this case the cause of action was the violation of the area verged GREEN in Plan No. OG/373AB/77. The area verged GREEN in Plan OG/790/76 is verged BROWN in Plan OG/373/A13/77. The trespass upon the area verged GREEN in Plan OG/373/AB77 in 1985 precipitated this present action. It is crystal clear, therefore, that the cause of action in this case is different from the cause of action in suit No. 23/CV/75. Both the trial High Court and the Court of Appeal have found that the cause of action is not the same.

The Court was urged to dismiss the appeal and confirm the concurrent findings of the lower Courts.

It is settled law that to sustain a plea of “res judicata”, the party pleading it must satisfy the following conditionalities, to wit –

(1) The parties (or their privies as the case may be) are the same in the present case as in the previous case;

(2) That the issue and subject matter are the same in the previous suit as in the present suit;

(3) That the adjudication in the previous case must have been given by a Court of competent jurisdiction; and

(4) That the previous decision must have finally decided the issues between the parties. (See for example NKANU & ORS V. ONUM & ORS. (1977) 5 SC 11 DZUNGWE V. GBISHE (1985) 2 N.W.L.R. (PT. 8) 528. UDO V. OBOT (1989) 2 N.W.L.R. (PT. 95) 59).

Failure to satisfy any of these conditions means failure of the plea in its entirety.

Dealing with the plea, the learned trial judge in his Ruling said as follows-

In this case the applicants arguments are that the parties are the same, the issues are the same and the subject matters are the same. I found that in 23/CV/75 the area of land involved is only three (3) acres. The Plaintiff raised this point at paragraph 4 of this counter affidavit and that point was not specifically answered in Reply to counter-affidavit by the applicant.

The 1st Defendant only purchased 3 acres from the Faluyi Family as shown in Exhibit A in the affidavit and confirmed by the 1st Defendant’s evidence ………………….. I am in the circumstances constrained to conclude that the subject matter in 23/C V/75 and HCT/6/89 are not the same. The acreage HCT/6/89 being 70.487 acres as against the acres claimed in 23/CV/75………………

.…………………………….. While the Plaintiffs in 231CV/75 and HCT/6/89 are the same I cannot say precisely that the defendants in 23/CV/75 are the same. The relationship between Osundairo, Sunday Faluyi and Lasisi Faluyi and N. A. Odutola, the defendant in this suit has to be established by evidence. The law is that what has to be tried in the substantive case should not be considered in details in an interlocutory application. This would amount to double trial …. To succeed on this plea, all the requirements must be unequivocal and certain. In 23/CV/75 neither Osundairo nor the Faluyi’s were adjudged the owners of the 3 acres because they did not counter-claim ………… I think at this stage, it would appear improper to shut out the Plaintiffs on the plea of res judicata since I find that the subject matter is not the same the claim is not the same, and the issues are more fundamental than mere issues of trespass ……… I have no hesitation in dismissing this application”.

The Court of Appeal in its lead judgment on page 282 of the record also had this to say –

“Applying the above principles to the present case based on what has been made available at the trial Court by the Appellant, it can be clearly seen that the land in dispute in the earlier suit No. 231CV175 (which was on trespass) was smaller in size (i.e 3 acres) than that in the present action (which is on the whole of IJAKO Community land). In OLUKOGA V. FATUNDE (1996) 7 N.W.L.R (PT. 462) 516 at 533, the Supreme Court drew a distinction between a previous suit in which the land was 18.62 acres and the subsequent case where the land was 100 acres and concluded that the subject matters threat were not the same in the two cases The appeal is completely devoid of merit and should be dismissed. I accordingly hereby so dismiss it.”

I have carefully read through the record myself and my irresistible conclusion is that the lower Courts were right in their rejection of the plea of res judicata relied upon by the Defendant in this case. The issue and subject matter in the previous suit (23/CV/75) and present suit (HCJ/6/89) are not the same. These are sufficient for the plea to have collapsed as it did (see for example KUTSE & ORS. V. ATT. GEN PLATEAU STATE & ORS. (1999) 2 SC 124).

I am aware that the Court of Appeal in its judgment on page 283 held, rightly in my view, that the judgment in 23/CV/75 was not a final judgment because an appeal was lodged against the said judgment in the High Court (AB/13A/84), and a further appeal also was lodged to the Court of appeal (CA/1/62/84), which finally ordered a retrial of the case. This point was taken suo motu by the Court of Appeal and without giving the parties or their Counsel opportunity to address on it. I think Alhaji Ayoola was right to have complained here now. But I am unable to agree with her that any miscarriage of justice has occurred in the case. As I have stated above the appeal would still have failed even if the judgment in 23/CV/76 was final (and it was not) as contended by learned Counsel (see for example ONAJOBI & ANOR V. OLANIPEKUN & ORS (1985) 4 SC (PT. 2) 156, ATOYEBI & ANOR V. GOV OF OYO STATE & ORS (1994) 4 N.W.L.R. (PT. 344) 290.

The appeal therefore fails. It is hereby dismissed with N10,000.00 costs to the Plaintiffs/Respondents.

UTHMAN MOHAMMED, JSC:

I have had the advantage of a preview of the judgment just delivered by my learned brother, Kutigi JSC, and I agree with his reasoning and conclusion. I agree that this appeal is without merit and for the reasons advanced in the lead judgment I dismiss this appeal. The judgment of the Court of Appeal is hereby affirmed. I too award N10,000.00 costs in favour of the respondents.

KATSINA-ALU, JSC:

I have had the advantage of reading in draft the judgment of my learned brother Kutigi JSC. in this appeal. I completely agree with it.

It is now trite law that to sustain a plea of “res judicata” the party relying on it must satisfy the following conditions: to wit

(1) The parties (or their privies as the case may be) are the same in the present case as in the previous case:

(2) That the issue and subject matter are the same in the previous suit as in the present Suit.

(3) the adjudication in the previous case must have finally decided the issues between the parties.

All these conditions must be satisfied.

The learned trial Judge in the course of its ruling held that the plea of “res judicata” was not established, He held that the subject matter in both suits was not the same and that the parties were also not the same. The Court of Appeal affirmed the decision of the trial High Court.

It is not in dispute that the area of land claimed in 24/CV/75 was 3 acres and that claimed in HCT 6/89 was 70.487 acres. It can be seen clearly that the plea of “res judicata” was not made out. Both the High Court and the Court of Appeal rightly, rejected the plea. See Aro V. Fabolude (1983) 2 SC 75; Olukoga V. Fatunde (1994)7 NWLR (Pt.462)516.

In the former case the land in dispute in the previous suit was 4.298 acres whereas the land in the subsequent suit was 267.22 acres. In the latter case the area of land in dispute in the previous suit was 18.62 acres whereas the land in question in the subsequent suit was 267.22 acres. In both cases this court held that the subject-matter in the two cases was not the same and the plea of res judicata was rightly rejected.

In the light of the foregoing reason and the fuller reasons contained in the leading judgment of my learned brother Kutigi JSC, I dismiss this appeal and affirm the decisions of the High Court and abide by the order for costs.

A. KALGO JSC:

I have read in draft the judgment of my learned brother Kutigi JSC just delivered in this appeal and I entirely agree with him that there is no merit in the appeal and it ought to be dismissed. I agree that the appeal was competent and filed within the time required by law and so I overrule the preliminary objection raised by the appellant in his brief. I also find that on the evidence on the record of appeal, there is no foundation upon which the principle of res judicata or the plea thereof can be raised in the action. I therefore agree with the reasoning and conclusions reached by Kutigi JSC in dismissing the appeal and I adopt them as mine. Accordingly, I dismiss the appeal and award N10,000.00 costs to the respondents.

UWAIFO, JSC:

I had the privilege of reading in draft the judgment of my learned brother Kutigi JSC. I agree with him that the plea of estoppel per rem judicatam cannot avail the appellant in this case as a defence he can raise to dispose of this suit in limine.

The plaintiffs, suing on behalf of Ijako Community, Otta, claimed among other reliefs,

“A declaration that the plaintiffs as head and accredited representatives of Ijako Community, Otta, Ogun State of Nigeria are the persons entitled to the statutory right of occupancy in respect of the vast piece of land or parcel of land situate, lying and being at Ijako village near Otta, Ogun State of Nigeria.”

The other reliefs are damages against the 1st defendant (now appellant) for his alleged various acts of trespass and wilful and malicious destruction of farm crops, economic trees, buildings etc in Ijako village; injunction against the 1st defendant; and injunction against the 1st 2nd, 3rd and 4th defendants to restrain them from granting the 1st defendant a certificate of occupancy in respect of any parcel of land in the said Ijako village.

The basis of the suit is a claim to communal ownership of Ijako village land. The traditional history of the founding of the village was copiously pleaded in the statement of claim. The first settler on the land is stated to be one Ijako. According to the history, Ijako begat Ewu, Ewu begat Amosu who begat Ajeniya who begat Ebisa; Ebisa begat Agboodu (among others) who begat Fagbayi and Oderinde (among others). Oderinde was the father of the 1st plaintiff said to be the present Bale of Ijako. The descendants of other branches were traced including Fayemi (a woman) who begat Faluyi for Oso-Ologundudu.

The 1st defendant who claims to have bought a large parcel of land from Faluyi denied in his statement of defence the history pleaded by the plaintiffs, he proceeded to state the traditional history of the founding of Ijako. He averred in para. 3 that it was founded by Ebisa and in para.13 that “the descendants of Ebisa continued to exercise in common the vast hectares of land which they inherited under Yoruba Native Law and Custom from their original ancestor as Faluyi Family land. As to how he got the land in dispute he said in para. 14:

“Under and by virtue of a Purchase Receipt dated 25th day of January 1978 executed by Messrs. Gabriel Sunday Faluyi, Lamidi Faluyi, Sule Faluyi and Sindiku Salako as the accredited representatives of the Faluyi of Ijako, Otta, the Faluyi Family sold 70.487 acres forming portion of Faluyi family land at Ijako of the 1st defendant for the sum of N60,000.00 and put the 1st defendant in physical possession of same.’’

There is the issue in the present case as to whose traditional history will eventually prevail. But the 1st defendant has in para. 16, 17, 18 and 19 of his statement of defence pleaded estoppel per rem judicatam with a view to abort the proceedings and prevent evidence being led on traditional history. The said paragraphs read:

“16. With regard to the traditional history of the plaintiff’s root of title, as pleaded in paragraphs 8, 9, 10, 11, 12, 13, 16, 17, 18, 19, 20, 21, 22, 28, 31, 32, 38, 43, and 44 of the Amended Statement of Claim, the 1st defendant specifically pleads that the same traditional history was put forward by the 1st plaintiff (suing for himself and on behalf of entire community of ljako) for –

a) Declaration of title to all that piece or parcel of land situate, lying and being at Ijako Village, Otta.

b) Damages for trespass

c) Injunction

against the predecessors in-title of the 1st defendant i.e. the Faluyi family before the Grade 1 Customary Court, Abeokuta in suit No. 23/CV/75 and which suit was dismissed in toto in favour of the Faluyi family. The 1st plaintiff unsuccessfully appealed to the High Court Abeokuta against the said judgment, which ‘appeal was dismissed in AB/13A/84 and further attempt at the Federal Court of Appeal, Ibadan resulted in the appeal being struck out as the Court of Appeal in FCA/l/78/85 refused to grant leave to appeal.

The 1st defendant specially pleads estoppel per rem judicatam to the whole cause of action in this suit and issue estoppel in so far as the plaintiffs’ traditional history pleaded in this suit is concerned. The 1st defendant shall show at the trial of this suit that the subject-matter of this suit as shown in plan No. OGE/373A/77 pleaded in paragraph 6A of the Amended Statement of Claim falls within Plan No.790/76, the Survey Plan in Suit No.23/CV/75. The 1st defendant shall tender a composite plan No. APAT/OG/127/1990 dated 26th July 1990 to show that the land, the subject-matter of this suit falls within the land contained in plan No. OG790/76.

The 1st defendant shall contend at the trial that in so far as, that traditional history of the plaintiffs’ root of title had then put forward before a Court of competent jurisdiction and rejected, the plaintiffs are estopped from raising the same issues in another litigation against the privy of the Faluyi Family.

With particular reference to paragraph 54 of the Amended Statement of Claim, in, the 1st defendant maintains that in so far as suit No.AB/13/84, which is an appeal against the judgment of Customary Court in the said suit.23/CV/75, did not reverse the findings of fact in suit No.23/CV/75 or set aside the judgment, the plaintiffs are estopped from re-litigating the subject-matter of the said suit by these proceedings.”

The pleas of res judicata and issue estoppel were separately specifically contested. On 10 August, 1993, Bakre J. sitting at the High Court of Ogun State, Otta, ruled against res judicata. The Court of Appeal, Ibadan Division, heard the appeal from that ruling and on 24 June, 1999 upheld the decision of Bakre J. The 1st defendant as appellant has further appealed to this court. The main thrust of the appeal is whether the Court of Appeal was right in holding that the plea of estoppel per rem judicatam and/or issue estoppel not been made out.

The appellant filed his appeal within three months. The respondents thought the decision of the court below appealed against was interlocutory which should be appealed with in 14 days. The respondents have for that reason raised a preliminary objection to the competency of the appeal. Their counsel argued before us that the judgment of the Court of Appeal was not a final judgment and must be appealed within 14 days unless leave of this court was obtained extending time. The appellant, however, contended that the judgment of the court below was a final judgment appealable within 3 months.

My understanding of this court’s decisions in Igunbor V. Afolabi (2001) 6 SCM, 77; (2001) 11 NWLR (pt.723) 148 and Akinsanya V. United Bank for Africa Ltd (1986) 2 NSCC (vol. 17) 968 which were cited to us leads me to the conclusion that the judgment of the court below in this case is a final judgment. It does not matter that the substantive suit is still pending in the High Court. I must concede that to determine what is final and what is interlocutory could present much difficulty. This can be seen from the decisions in Omomuwa V. Oshodin (1985) 2 NWLR (pt. 10) 924; Akinsanya V. UBA (supra); Western Steel Works Ltd V. Iron and Steel Workers Union of Nigeria (1986) 3 NWLR (pt.30) 617; Igunbor V. Afolabi (supra). In Igunbor V. Afolabi at page 165, Karibi-Whyte JSC observed thus:

“[W]here the order made finally determines the rights of the parties, as to the particular issue disputed, it is a final order even if arising from an interlocutory application…. The instant case as rightly submitted by appellant’s counsel, is an interlocutory motion by the appellant to be joined as co-administrators with the respondents. The order of the learned trial judge granting the application determined the rights of the parties in the application. It is an order which did not require something else to be done in answer, and without any further reference to itself or any other court of co-ordinate jurisdiction. The order of the learned trial judge is therefore a final order.’

Even this observation cannot provide a clear solution to the difficulty. But it seems to have anticipated the current approach adopted in the English jurisdiction. The position is that where a hearing of any action is taken under a rule of court permitting such procedure, e.g. under proceedings in lieu of demurrer, a decision reached in such hearing is regarded as final if the decision is in respect of an issue which would have formed a substantive part of the final trial. A decision reached on a plea of res judicata, whatever the result, is one on an issue which would have formed a substantive part of the final trial in the sense whether or not a plaintiff may in law be allowed to maintain his action. It is a final decision. In the present case, Order 23, r.2 of the High Court (Civil Procedure) Rules, 1958 Cap.44, Vol. III, Laws of Ogun State 1978, is relevant. It reads:

“Any party shall be entitled to raise by his pleading any point of law, and any points so raised shall be disposed of by the Judge who tries the cause at or after the trial:

Provided that by consent of the parties, or by order of the Court or a Judge on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.”

This rule is now provided under Order 24, r.2 of the Ogun State High Court (Civil Procedure) Rules Edict 1987. It is under it that the question of res judicata was set down for hearing and determination in the present case. It is similar to Order 33, r.3 of the Rules of the Supreme Court of England which provides thus:

“The Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated.”

In Holmes V. Bangladesh Biman Corporation [1988[ 2 Llyoyd’s Rep. 120, a passenger, a British citizen domiciled in the United Kingdom, had been killed on a domestic flight in a Bangladeshi aircraft which crashed in Bangladesh. His is widow brought an action in the British court for compensation under the Law Reform (Miscellaneous Provisions) Act, 1934 and the Fatal Accidents Acts, 1976. The question was whether the claim was governed by schedule 1 to the Carriage by Air Acts (Application of Provisions) Order, 1967 or by the Bangladeshi provisions incorporated in the contract between the passenger and the airline. That question was tried as a preliminary issue. In the course of deciding the appeal from the ruling given by the trial judge, Bingham L.J. in his leading judgment made reference to Order 33, r.3 which I reproduced above. He said at page 24:

“Order 33, r.3 gives the Court a wide discretion to order the separate trial of different issues in appropriate cases and a decision is not to be regarded as interlocutory Simply because it will not be finally determinative of the action whichever way goes. Instead, a broad commonsense test should he applied, asking whether (if not tried separately) the issue would have formed a substantive part of the final trial. Judged by that test this judgment was plainly final, even though it did not give the plaintiff a money judgment and would not, even if in the airline’s favour, have ended the action.”

See also White V. Brunton (1984) QB 570 at 573 per Sir John Donaldson M.R.

In the present case,, what took place was a separate trial of the issue of res judicata. That is an issue which would have formed a substantive part of the final trial. Whatever the decision was, going by the above authorities which I endorse, it was a final decision of that issue. The period within which to appeal against the decision to this court under section 31(2) of the Supreme Court Act, is three months. That was what was done in this case by the appellant.

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The respondents counsel had thought that the decision of the Court of Appeal was interlocutory and that the appeal against it must be filed within 14 days subject to court order granting extension of time. I think he was wrong. I accordingly overrule the preliminary objection to the competence of this appeal.

As to the substance of the appeal, the real issue is whether the Court of Appeal was right in not upholding the plea of estoppel per rem judicatum. The judgment relied on was the Customary Court Grade 1 of Ogun State in Suit No.23/CV/75 decided on 7 June, 1984.

The plaintiffs in that case are the same as the respondents ‘in the present case. They relied on some traditional history in the action they brought against certain Olusegun Osundairo, Sunday Faluyi and Lamidi Faluyi. The Customary Court observed thus:

“As aforestate (sic), plaintiff on his own in his

COUNSELS

Alhaja R.O. Ayoola for the defendant/appellant

Kolawole Alawode Esq., for the plaintiffs/respondents