MADAM ADEPEJU FLORENCE ADEDEJI v. HON. JACOB ADEWALE FATOYINBO & ANOR (2013)

MADAM ADEPEJU FLORENCE ADEDEJI v. HON. JACOB ADEWALE FATOYINBO & ANOR

(2013)LCN/6009(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 6th day of March, 2013

CA/AK/124/2011

RATIO

ESTOPPEL: COLLATERAL ESTOPPEL: DEFINITION

In Black’s Law Dictionary 8th edition estoppel per rem judicatam is classified as “collateral estoppels”. “Collateral estoppel” is defined at page 279 thus:
“1. The binding effect of a judgment as to matters actually litigated and determined in one action on later controversies between the parties involving a different claim from that on which the original judgment was based.
2. A doctrine barring a party from re-litigating an issue determined against that party in an earlier action, even if the second issue differs significantly from the first one – Also termed issue preclusion; issue estoppel; estoppel by judgment; estoppel by record; estoppel by verdict; cause-of-action estopppel; technical estoppel; estoppel per rem judicatam. C. F. Res judicata” (Emphasis mine).PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

RES JUDICATA: DEFINTION OF THE TERM

“Res judicata” is defined at pages 13336 – 137 of the dictionary thus:
“1. An issue that has been definitively settled by judicial decision…
2. An affirmative defense barring the same parties from litigating a second law suit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been – but was not – raised in the first suit The three essential elements are (1) an earlier decision 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.”
In further explanation of the term “res judicata” the learned authors of Black’s Law Dictionary noted at page 136 that while the term is a general one referring to all ways in which one judgment would have a binding on another, it lumps together two different effects of judgments. One effect being that litigation is foreclosed in respect of a matter that ought to have been litigated in a previous suit; while the other effect is that litigation is foreclosed where the issue has been definitively determined in a previous litigation. The first effect precludes a claim from being brought at all where the litigant had the opportunity of raising it and having it determined in the earlier suit. The second effect precludes the litigant from raising an issue that has already been decided between the same parties and in respect of the same subject matter, In essence the litigant is prevented from seeking redress from the court because he failed to utilise an earlier opportunity to do so or because a competent court of law has already considered and determined the same issue on its merits as between the same parties and/or their privies. See: Makun V. F.U.T. Minna (2011) NWLR (1278) 190 @ 221 A-G; 227-228 D-D and 230 F-H.PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

ESTOPPEL PER REM JUDICATA: A PLEA OF ESTOPPEL PER REM JUDICATA IS A SPECIAL DEFENCE AND THE LITIGANT IS PRECLUDED FROM VENTILATING HIS GRIEVANCE BEFORE THE COURT

ESTOPPEL: BEFORE IT IS RAISED IN COURT, IT MUST BE DULY PLEADED
In Menakaya V. Menakaya (supra) at page 293 F – H, Niki Tobi, JSC stated the rationale for this requirement thus:
“There is a very loud law that before the doctrine of estoppel is raised in court it must be duly pleaded. The rationale for the position of the law … is to ensure that the adverse party knows in advance what he is going to meet in court. It is to avoid a situation of embarrassment or complete helplessness on the part of the adverse party.”PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

JURISDICTION: THE JURISDICTION OF A COURT IS DETERMINED BY THE PLAINTIFF’S CLAIM

It is equally trite that the jurisdiction of the Court is determined by the plaintiffs claim as endorsed on the writ of summons and statement of claim. See: Inakoju V. Adeleke (supra); Elabanjo V. Dawodu (2006) 15 NWLR (1001) 76; Adeyemi V. Opeyori (1975) 9-10 SC 31; Tukur V. Governor Gongola State (1989) 4 NWLR (117) 517. Where the claim endorsed on the writ of summons and statement of claim is within the jurisdiction of the court and the plaintiff is competent to bring the action and the court is not otherwise disqualified in its membership or enabling statute to adjudicate, the court has the jurisdiction to hear the case. See: Dangida V. Mobil Producing (Nig.) Unltd. (supra): Madukolu V. Nkemdilim (1962) 2 SCNLR 341; Tukur V. Govt. of Gongola State (1989) 4 NWLR (117) 517.PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

ESTOPPEL: THE PLEA IS A DEFENCE IN AN ACTION

JUSTICES:

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria

ALI ABUBAKAR B. GUMEL Justice of The Court of Appeal of Nigeria

CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria

Between

MADAM ADEPEJU FLORENCE ADEDEJI – Appellant(s)

AND

1. HON. JACOB ADEWALE FATOYINBO
2. OMOTAYO OLUSHINA OLUPONNA
(for themselves and on behalf of Members of Oluloye Olisa Isinkan family) – Respondent(s)

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Ondo State sitting at the Akure Judicial Division delivered on 11/2/2011 wherein the trial court overruled the defendant’s (now appellant’s) preliminary objection raised vide a motion on notice dated 4/10/10 and filed on 5/10/10 seeking the dismissal of the plaintiffs’ (now respondents) suit in limine for lack of jurisdiction on the basis of estoppel per rem judicatam.
By their writ of summons dated 15/3/2010, the respondents instituted an action against the appellant at the court below for the following reliefs:
1. Declaration that the plaintiff’s are the persons entitled to Statutory Rights of Occupancy in respect of a piece or parcel of land being at Ipona-nla farmland, Ondo Road, Akure bounded by Adun farmland and Akingbade farmland.
2. Perpetual injunction restraining the defendant, her agents, privies, assigns, representatives and any person or persons taking instructions or deriving interest from her HOWSOEVER/WHOSOEVER from any further acts of trespass on the aforesaid plaintiffs land forthwith.
3. N5 Million as damages for trespass.
Upon being served with the writ of summons the appellant caused a memorandum of appearance dated 16/3/2010 to be filed on her behalf on 22/3/2010. In support of the writ of summons the respondents filed a statement of claim dated 21/6/2010. Thereafter the appellant filed a motion on notice dated 4/10/2010 praying for an order dismissing the suit for want of jurisdiction. The grounds of the application were:
1. “The Plaintiffs/Applicants are estopped from re-litigating a matter/issue already adjudicated upon by a court of competent jurisdiction.
2. The present suit constitutes (sic) abuse of court process.”
The application was supported by a 9 paragraph affidavit deposed to by the appellant herself with exhibits attached thereto and marked Exhibits A and B respectively. The averments, being quite brief are reproduced hereunder:
1. “That I am the Defendant/Applicant in this case.
2. That I am nee Okopasha, a member of Adejugbe Okopasha family of Akure.
3. That I know the plaintiffs and their predecessors as members of Olisa Isinkan family, Akure.
4. That the land in dispute in this suit had once been litigated upon by the family of the defendant/applicant’s family and the family of the plaintiffs/respondents in suit no. AK/11CL/69, Divisional Grade “A” Customary Court, Akure on appeal to High Court in suit no. AK/29A/72.
5. That the plaintiffs/respondents are children/members of family/privies of Oluloye Olisa, Isinkan family, Akure whom my family instituted suit no. AK/11CL/69 against and suit no. AK/29A/72 on appeal over the subject matter of this action at Ilasun bush Ondo Road, Akure.
6. That my family and I are highly irritated and embarrassed by the present suit.
7. That Niran Disu my counsel informed me and I verily believe as follows:
(a) That the plaintiffs and their family in the present suit are the same as in the previous suits no. AK/11CL/69 and AW29A/72.
(b) That the subject-matter and issues raised in the present suit are the same with the previous suits AK/11CL/69 and AK/29A/72 on appeal; certified true copies of the particulars of claims, defence and Judgment in suit no. AK/11CL/69 are hereto attached as a bundle and marked Exhibit ‘A’.
(c) That the final judgment delivered on AK/29A/72 to which there has been no appeal is hereto attached and marked Exhibit B.
(d) That the judgment delivered in suit no. AK/29A/72 bind (sic) the parties and their agents, servants, privies, predecessors in title, heirs and successors in title including the parties in the present suit which judgment was decided in favour of the defendants predecessor in title over the subject matter of this action.
(e) That the farmland subject matter of the action previously litigated upon by the parties is at Ilasun but the plaintiffs choose to call it Ipona-Nla, Ondo Road, Akure in the present suit.
(f) That there must be an end to litigation.
8. That it is in the interest of justice to grant this application as the present suit constitute (sic) an abuse of the Court process.”
(Emphasis mine)
In reaction thereto the respondents apparently filed a counter affidavit as well as a further counter affidavit. A copy of a judgment referred to but omitted in the counter affidavit and a copy of a survey plan prepared for the suit were allegedly attached to the further counter affidavit. This information is gathered from tie summary of the case by the learned trial Judge at pages 82 – 83 of the record in the course of the ruling that gave rise to this appeal. See also the Registrar’s certificate. Unfortunately the said counter affidavit and further counter affidavit referred to were not copied into the record. The appellant on her part filed two further and better affidavits. Only the one dated and filed on 30/11/2010 is contained in the record at pages 70 – 71. Two survey plans referred to as Exhibits A2 and A3 in the said further and better affidavit are at pages 72 and 73 of the record.
After listening to the submissions of learned counsel for the parties urging their respective positions on the court, the learned trial Judge in a considered ruling delivered on 11/2/2011 held that the application was incompetent for the failure of the appellant to raise the issue of estoppel per rem judicatam in her pleadings prior to seeking the dismissal of the suit on that ground. Consequently he struck out the application. Out of abundance of caution, in the event that his decision was found to be wrong, he proceeded to consider the application on its merits and concluded that from the facts and materials before the court at that stage it would be better to consider and resolve the issue after a full hearing of the suit on the merits. On this ground also he struck out the application.
The appellant, not surprisingly, was dissatisfied with this decision and filed a notice of appeal dated 21/2/2011 and filed on 1/3/2011 containing five grounds of appeal.
The parties duly filed and exchanged briefs of argument in compliance with the rules of this court. The appellant’s brief dated 9/11/11 was filed on 14/11/11. She also filed a reply brief dated 18/10/2012 and filed on 24/10/12. The respondents’ brief dated 8/2/12 and filed on 10/2/12 was deemed properly filed and served on 8/10/12. At the hearing of the appeal on 15/1/13, J.O. DISU ESQ., learned counsel for the appellant adopted and relied on both briefs filed on her behalf and urged the court to allow the appeal. BIODUN FASAKIN ESQ adopted and relied on the respondents’ brief. In addition to the authorities cited in his brief he relied on a decision of this Division of the Court of Appeal in: Appeal No, CA/B/129/2009: Omotayo Afelumo V. Omotayo Ojo & 2 Ors, delivered the same day, 15/1/13, and urged the court to dismiss the appeal.
Learned counsel for the appellant formulated three issues for the determination of the appeal as follows:
1. Whether the lower court was right in holding that the failure of the defendant/applicant to file a statement of defence and raise the issue of estoppel per rem judicatam therein renders the application of the defendant/applicant incompetent.
2. Whether the plaintiffs/respondents suit is caught by the plea of estoppel per rem judicatam.
3. Whether the plaintiffs/respondents suit constitute (sic) abuse of court process.
The respondent adopted the issues for determination as formulated by the appellant.
Issue 1
Whether the lower court was right in holding that the failure of the defendant/applicant to file a statement of defene and raise the issue of etoppel per rem judicatam therein renders the application of the defendant/applicant incompetent.
In support of this issue, learned counsel for the appellant argued that the plea of estoppel per rem judicatam raised at the court below challenged the jurisdiction of the court to entertain the respondents’ suit. He submitted that the objection to jurisdiction is an objection on point of law and could be raised at any time before judgment by whatever means and even without filing pleadings. He relied on: Bessoy Ltd. V. Honey Legon (Nig.) Ltd. (2010) ALL FWLR (503) 1380 @ 1394; Elabanjo V. Dawodu (2006) ALL FWLR (323) 604. He submitted further that the issue of jurisdiction is a threshold matter, which, once raised must be determined before any other step is taken in the proceedings. He submitted that the plea could be raised even where the defendant has not filed pleadings because it is the statement of claim that determines the jurisdiction of the Court. He referred to Bronix Motors Ltd. V. Wema Bank Ltd. (1983) 4 NWLR (118) 646; Omaye V. Omagu (2007) 7 NWLR (1087) 477 @ 501. He argued that the judgments, Exhibits A and B at pages 12 – 59 of the record on which the appellant relied to sustain her plea of estoppel were before the court and available for consideration. He referred to: Nigergate V. Niger State Government (2008) ALL FWLR (406) 1938 @ 1967.
Learned counsel submitted further that Order 25 Rule 6 (1) of the Ondo State High Court CMI Procedure Rules is inapplicable where the point of law raised questions the jurisdiction of the court to entertain the action. He relied on: Bessoy Ltd. V. Honey Legon (Nig.) Ltd. (supra); Omaye V. Omagu (supra); Nigergrate V. Niger State Government (supra).
In reaction to the above submissions, learned counsel for the respondents, while conceding that the issue of jurisdiction simpliciter goes to the root of adjudication and could be raised at any stage of the proceedings, submitted that the plea of estoppel per rem judicatam is an objection on point of law that can only be raised by pleadings. While also conceding that the statement of claim determines the jurisdiction of the court, he contended that the plea as raised by the appellant is not founded upon the statement of claim before the trial court. He submitted that the plea amounts to a demurrer, which is not permitted under the rules of court. He referred to Order 24 Rule 1 of the Ondo State High Court Civil Procedure Rules 1987 (hereinafter referred to as the High Court Rules). He submitted that such point of law must be raised by pleadings. He referred to Order 24 Rule 2 of the High Court Rules and the case of: Clay Industries V. Aina (1997) 7 SCNJ 491 @ 501. He argued that the essence of the provisions of Order 24 Rule 2 is to prevent the party raising such a plea from springing a surprise on his opponent. He referred to Order 25 Rule 6 (3) of the High Court Rules and: Menakaya V. Menakaya (1995) 6 NWLR (472) 256; A.G. Anambra State V. Eboh (1992) 1 NWLR (218) 491 @ 509 F – G; Ezenwani V. Onwordi (1986) 4 NWLR (33) 27.
Learned counsel further submitted that an objection challenging the validity of an action could only be determined at the initial stage of the proceedings by reference to the pleadings, particularly the statement of claim. He submitted that where the issue could not be determined on the pleadings the court would have to proceed to a full hearing of the case and decide the point after evidence has been led. He referred to: Dangida V. Mobil Producing Nig. Unltd. (2002) FWLR (97) 659; Akinbi V. Mil. Gov. of Ondo State (1990) 3 NWLR (140) 525.
Referring to the case of Owoniyi V. Omotosho (1961) All NLR 304, he contended that the records of a previous judgment should not be received in evidence, even with the consent of the adverse party where estoppel was not pleaded. He maintained that a court would not ex proprio motu hold that a party is estopped without the filing of pleadings and the respondent being given an opportunity of being heard. He referred to: Dedeke V. Williams (1944) 10 WACA 164. On the fact that it is the plaintiffs claim that determines the court’s jurisdiction he referred to: Akinfolarin V. Akinnota (1994) 3 NWLR (335) 659.
In his reply brief, learned counsel for the appellant maintained his reliance on the authority of Bessoy Ltd. V. Honey Legon (supra) to the effect that an objection on a point of law could be raised in whatever manner and by whatever means.
I have given careful consideration to the submissions of both learned counsel in respect of this issue. I think a good place to start is to determine the nature of a plea of estoppel per rem judicatam.
In Black’s Law Dictionary 8th edition estoppel per rem judicatam is classified as “collateral estoppels”. “Collateral estoppel” is defined at page 279 thus:
“1. The binding effect of a judgment as to matters actually litigated and determined in one action on later controversies between the parties involving a different claim from that on which the original judgment was based.
2. A doctrine barring a party from re-litigating an issue determined against that party in an earlier action, even if the second issue differs significantly from the first one – Also termed issue preclusion; issue estoppel; estoppel by judgment; estoppel by record; estoppel by verdict; cause-of-action estopppel; technical estoppel; estoppel per rem judicatam. C. F. Res judicata” (Emphasis mine)

The point I am labouring to make here is that under the doctrine of estoppel per rem judicatam it is the litigant who is precluded from ventilating his grievance before the court. A plea of estoppel per rem judicatam is a special defence. It is a rule of evidence generally used by a defendant as a shield and not as a sword. Its determination depends on a consideration of pleaded facts. The position of the courts consistently maintained over the years has been that a party relying on the plea must plead it specifically. See: Obanye v. Okwunwa and Ijoma (1930) 10 NLR 8: Chukwura V. Ofochebe (1972) 12 SC 189; also reported in (1972) LPELR-86 (SC); Sosan V. Ademuyiwa (1986) 3 NWLR (27) 241; Menakaya V. Menakaya (1996) 6 NWLR (472) 256 @ 293 F – H: Dangida V. Mobil Producing Nig. Unltd. (2002) 7 NWLR (766) 482 @ 500 – 501 D – A; M.V. “Delos” V. Ocean Steamship (Nig.) Ltd. (2004) 17 NWLR (901) 88 @ 105 A-D and 106 C-E.
In Menakaya V. Menakaya (supra) at page 293 F – H, Niki Tobi, JSC stated the rationale for this requirement thus:
“There is a very loud law that before the doctrine of estoppel is raised in court it must be duly pleaded. The rationale for the position of the law … is to ensure that the adverse party knows in advance what he is going to meet in court. It is to avoid a situation of embarrassment or complete helplessness on the part of the adverse party.”
In the case of Chukwura v. Ofochebe (supra) where the issue in contention was whether the defendants had trespassed on the plaintiffs, land, the defendants after an amendment of their pleadings tendered a previous judgment of the Ogidi Native Court, which was marked Exhibit O. The suit before the Native Court was between Omeazu Chukwura for and on behalf of the Akpom family in Umudioka and (i) Ezennia At Umuezechina and (ii) Nwugo Nwokoye of Umuezechina. The claim was for “10 pounds damages for trespassing, tapping palm wine and harvesting palm fruits respectively on plaintiff’s Agu Mili Nkisa land since 25 days ago.” The evidence before the court was to the effect that the two defendants were tenants of the people of Ifite Ogbunike and the native court adjudged that the defendants were in trespass and should pay damages. The respondent, Ofoboche, had testified on behalf of the defendants before the Native Court in Exhibit O. Learned Counsel for the defendants had urged the court below to hold that Exhibit O should be regarded as estoppel per rem judicatam against the plaintiffs and the people of Ogbunike. The court did not agree with the submission, one of the reasons was that the parties were not the same. While agreeing with the conclusion of the learned trial Judge on the issue the Supreme Court held further:
“There are however other reasons why Exhibit O could not have been treated as res judicata. We have already referred to the pleadings, i.e. paragraph 9A, by which it was introduced into this case. It was stated that the defendants could not found on it and nowhere was it claimed or averred that it would be relied upon as estoppel by res judicata, The submission that it should be so treated was therefore misconceived…. It is undoubtedly a matter relevant to the proceedings in the language of section 54 of the Evidence Act and indeed Exhibit O is conclusive as to the matter actually decided thereby. But, for estoppel per rem judicatam to operate, it is not enough to show that the matter alleged to be concluded might have been put in issue. It is indeed necessary in order to affect the plaintiffs that the matter or rather their title was so put in issue or claimed.”
This authority clearly illustrates the necessity not only to specifically plead the relevant judgment but also to indicate in the said pleadings that the judgment would be relied upon as estoppel per rem judicatam.
Order 25 Rule 6 (1) of the Ondo State High Court Civil Procedure Rules in line with judicial pronouncements on the issue provides:
6. (1) A party shall plead specifically any matter for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality which, if not specifically pleaded might take the opposite party by surprise.”
Learned counsel for the appellant has strongly argued that the issue of estoppel per rem judicatam is a point of law affecting the jurisdiction of the court and could therefore be raised at any stage of the proceedings and even on appeal. Learned counsel is no doubt correct and it has been settled beyond any doubt that jurisdiction is the lifeblood of adjudication and therefore any judicial proceedings conducted without jurisdiction would be a nullity. It is for this reason that jurisdiction can be raised at any stage and must be considered and resolved before the Court takes any further step in the cause or matter. It is equally trite that the jurisdiction of the Court is determined by the plaintiffs claim as endorsed on the writ of summons and statement of claim. See: Inakoju V. Adeleke (supra); Elabanjo V. Dawodu (2006) 15 NWLR (1001) 76; Adeyemi V. Opeyori (1975) 9-10 SC 31; Tukur V. Governor Gongola State (1989) 4 NWLR (117) 517. Where the claim endorsed on the writ of summons and statement of claim is within the jurisdiction of the court and the plaintiff is competent to bring the action and the court is not otherwise disqualified in its membership or enabling statute to adjudicate, the court has the jurisdiction to hear the case. See: Dangida V. Mobil Producing (Nig.) Unltd. (supra): Madukolu V. Nkemdilim (1962) 2 SCNLR 341; Tukur V. Govt. of Gongola State (1989) 4 NWLR (117) 517.

As noted earlier in this judgment, a plea of estoppel per rem judicatam by its very nature is a defence to an action. It is one of those defences categorised as a special defence. This is because in most instances some form of evidence is required before the plea could succeed. It is generally used as a shield and not as a sword. To that extent it is not a factor that would be apparent from the writ of summons or the pleadings of the plaintiff. Thus although a successful plea would prevent the plaintiff from ventilating his grievance before the court, it is not an issue that could be determined solely by reference to the writ of summons and statement of claim. This is why it has been consistently held that estoppel per rem judicatam must be specifically pleaded. In addition to the authorities cited earlier see: Odi v. Iyala (2004) 8 NWLR (875) 283 @ 306 G-H; Clay Industires V. Aina (1997) 7 SCNJ 491 @ 509 lines 29 – 36; Obanye V. Okwunwa and Ijoma (supra); Dedeke & Ors. V. Williams & Anor. (1944) 10 WACA 164. In Clay Industries V. Aina (supra) all the facts necessary to raise the plea were fully pleaded in the amended statement of defence and in Exhibits D1 and D3 pleaded in paragraphs 5 and 6 thereof.
I have read the authorities of Beesoy Ltd. V. Honey Legon (Nig.) Ltd. (supra) and Nigergate V. Niger State Government (supra) relied upon by learned counsel for the appellant. In Beesoy’s case, the defendant urged the trial court to strike out the suit on three grounds: that the statement of claim disclosed no reasonable cause of action, that the court lacked jurisdiction and abuse of process. The Lagos Division of this Court considered the provisions of Order 23 Rules 2, 3 and 4 of the Lagos High Court Civil Procedure Rules 1994 and held that Rule 4, which provides that the court may strike out any pleading on the ground that it discloses no reasonable cause of action had watered down the effect of Rules 2 and 3, which require a party to specifically plead any point of law, which may be disposed of at or after the trial, and that the court may dismiss the action where it is of the opinion that the point of law raised substantially disposes of the whole action. Order 23 rules 2, 3 and 4 provide for proceedings in lieu of demurrer. I agree with the view expressed in that judgment that where a party contends that no reasonable cause of action is disclosed on the writ of summons or statement of claim, he could raise it without filing a statement of defence. However the case is distinguishable from the circumstances in the instant case because the plea of estoppel per rem judicatam is a special defence, which must be pleaded before it could be raised and disposed of as a preliminary issue. See: M.V. “Delos” V. Ocean Steamship (supra) at 105 A – C; Dedeke V. Williams (supra). In the case of Nigergate V. Niger State Govt. (supra) at 1967 E the court observed that the general rule is that a party relying on a plea of estoppel per rem judicatam must plead it specifically although it need not be pleaded in any specific form provided that the matter constituting estoppel is stated in such a way as to show that the party pleading relies on it as a defence or answer to the plaintiff’s claim. The peculiar facts of that case can be distinguished from the instant case. In the Nigergate case (supra) the plaintiff had not filed its statement of claim at the time the issue was raised by way of preliminary objection. It was held that in the absence of a statement of claim there was no pleading to respond to by way of a statement of defence. In the instant case, the issue was raised after the respondents had filed and served their statement of claim. The proper course of action was for the appellant to have filed her pleadings, raised the issue therein and then applied to the court to set the issue down for hearing as a preliminary issue. The Court would then have been in a position to determine whether the issue could be resolved based on the pleadings alone or whether it was necessary for the parties to lead evidence in respect thereof. See the judgment of this Court delivered in CA/B/129/2009; OMOTAYO AFELUMO & ORS. V. OMOTAYO OJO & ORS, delivered on 15/1/2013.
This position is further buttressed by the difficulty in which the lower court found itself having been called upon, without the benefit of pleadings from the appellant and/or evidence, to determine among other things whether the land in dispute in the previous proceedings was the same as the land in dispute before that court. The court, rightly in my view, held that it would be unfair to determine issues specifically raised by the respondents in their pleading without the benefit of the appellants pleading in opposition thereto and evidence led in respect of the survey plans annexed to the affidavits of the parties. I am therefore in complete agreement with the learned trial Judge that the motion on notice dated 4/10/10 and filed on 5/10/10 was incompetent and rightly struck out by the trial court.
This issue is accordingly resolved against the appellant.
Having resolved this issue against the appellant, issues 2 and 3 cannot be determined in this appeal. They are accordingly struck out. The appellant is hereby ordered to file her pleadings before the court below so that the matter may be determined on its merits. The parties shall bear their respective costs in this appeal.

ALI ABUBAKAR B. GUMEL, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother Kekere-Ekun, JCA and I wish to add these few words to it.
The first issue for determination in this appeal was whether the lower court was right in holding that the failure of the Defendant/Applicant/Appellant to file a statement of defence and raise the issue of estoppel per rem judicatam rendered that application incompetent.
In adjudications in civil actions, the essence of pleadings is to enable the court and the parties in the case to know from the joinder of issues the exact case which the parties have to meet at the hearing of the dispute between them. Further to this, in order to avoid uncertainty or obscurity in the presentation of the case of each party to a dispute filed in court for determination, there are certain matters which by the Rules of Court or practice, are required to be specifically pleaded. See for example, Order 15 rules 3(1), 6 and 7(1) of the current Ondo State High Court Civil Procedure Rules.
Since the decision in OBANYE V. OKWUNWA (1930) 10 NLR 8 and recently in CLAY INDUSTRIES V. AINA (1997) 7 SCNJ 491 at 501, for a party to avail itself of the plea of estoppel per rem judicatam, it should have pleaded it specifically. If it is not so pleaded, it cannot be raised as a special defence at the trail or on appeal.
With respect to the facts in the instant appeal, where the purported plea of estoppel was made in the context of a previous judgment, it has long remained the position of the courts that even a plea of estoppel in reference to a previous judgment should not be made by referring to it and merely stating that it would be relied upon at the trial. A court cannot therefore hold that any party is estopped without the issue being pleaded and the parties being afforded an opportunity to be heard on it. It is generally taken as a settled principle of law and practice that a decision on any of the well known special defences such as Fraud, illegality, Limitation of time, Estoppel etc; must involve a consideration and determination of given and matured factual situations against certain statutory enactments; or settled and well defined legal principles. Against this background of a cocktail of facts and law, a defendant must specifically plead in his statement of defence, facts necessary for raising special defences and any circumstances which shows that a plaintiff’s action is not maintainable. See DEDEKE V. WILLIAMS (1944) 10 WACA 164, OPUTA V. EZEANI (1963) 1 All NLR 149, and MUSA V. ISA (2001) 13 WRN 187 and SANNI V. OKENE LOCAL GOVT. (2005) 14 NWLR (Pt. 944) 60 as well the recent decision of this court in the unreported judgment in Appeal No. CA/B/129/2009 – OMOTAYO v. OMOTAYO & ORS. delivered on 15/01/2013 per Abiru, JCA.
It is for these reasons and the more elaborate ones and conclusions of my learned brother in the lead judgment, which I adopt as mine, that I would also resolve this issues against the Appellant and also hold that this appeal lacks merit and ought to the dismissed. I abide by all the consequential orders in the lead judgment.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother, KEKERE-EKUN, JCA just delivered now. I agree entirely with all the reasoning and conclusions of His Lordship and I in turn adopt them as mine.
I abide by all the consequential orders of His Lordship as well as the order regarding cost.

Appearances

J.O DISU ESQ. For Appellant

AND

BIODUN FASAKIN ESQ. with LAWRENCE ASO ESQ, and PETER EZIKE ESQ. For Respondent