Archbold Ebba V Chief Warri Ogodo & Ors (2000)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C.

The plaintiffs, who are appellants in this appeal, for themselves and on behalf of Ebbah Family had on 8/6/87 sued Chief Warri Ogodo and Warder Samuel Ogodo, for themselves and on behalf of Ogodo Family and The African Timber & Plywood (Nig.) Ltd. as 3rd defendant claiming –

(1) An order apportioning the rent payable by the 3rd defendant between the plaintiffs and the 1st and 2nd defendants.

(2) An order that 1st and 2nd defendants do render a true account of all rents received by them from the 3rd defendant since the judgment in suit No. S/23/74 and payment over to plaintiffs of their share of the said rent.

(3) An order of injunction restraining the 1st and 2nd defendants from receiving the aforesaid rent to the exclusion of the plaintiffs and 3rd defendant from paying over to the 1st and 2nd defendants to the exclusion of the plaintiffs the aforesaid rent.”

Following separate applications made by the UAC of Nigeria Ltd. and the plaintiffs the African Timber and Plywood (Nig) Ltd. was struck off the suit and the UAC of Nigeria Ltd. was subsequently joined as the 3rd defendant in the action.

Pleadings were filed and exchanged and subsequently, by leave of court, amended. By their amended statement of claim the plaintiffs pleaded, inter alia, as follows:

8. Whilst Ogodo and Mivayegbedia were at Ugbunurhie in Sapele, various European traders came to what is now Sapele to seek new trading posts. As these alien traders required land by the river, they approached Mivayegbedia and asked for land at Ugbunurhie. Being a woman of advanced age at the time, she mandated Chief Ogodo to negotiate with the European on her behalf. He did so and the result was the Deed of Lease dated 6th August, 1902 as pleaded in paragraph 3 of this Amended Statement of Claim. The money paid by the grantee and the rent for the land was enjoyed by the plaintiffs’ grand mother and late Chief Ogodo in their life time.
9. Whilst Chief Ogodo and plaintiffs’ grandmother were at Ugbunurhie, plaintiffs’ father Ebbah left Ugbunurhie and founded his own land on which he built his village now popularly called Ugbeyiyi.
10. By Okpe Native Laws and Customs, the property of a deceased mother passes to her children upon death and in this way Ebbah succeeded to her late mother’s right to the rents and money due under the lease of Ugbunurhie land – the present site of the A.T. and P. granted to Mclver and Company Limited by the lease pleaded in paragraph 3 of this Amended Statement of Claim.
11. For some years after the death of plaintiffs’ father, about 1956, members of Ogodo family collected the rents due under the lease and at the time when Itoto Ogodo was head of Ogodo family, he did everything to ensure a harmonious relationship between members of plaintiffs’ family and Ogodo family.
12. After the death of Chief Itoto Ogodo members of the Ogodo family became aggressive and greedy and attempted to exclude plaintiffs not only from taking a share in the rents from 3rd defendant but totally from being natives of Sapele.
13. The matters came to a head when Ogodo family instituted suit No.S/23/74 against the Ebbah Family and others claiming ownership not only of A.T. & P premises but of Ugbeyiyi Village itself. Plaintiffs joined issues with the Ogodo family on their said claim and on the question as to whether late Chief Ogodo acted for himself beneficially or for himself and others including late Ebbah when he signed the Lease to Mclver and Company Limited in 1902. Plaintiffs will found on the pleadings and judgment in the said suit No. S/23/74.
14. The issue raised on the capacity in which late Chief Ogodo signed the said lease was resolved in favour of the plaintiffs when the trial Judge held:-

‘The 2nd and 3rd defendants are no customary tenants on Ogodo Quarter, and there was no doubt that late Chief Ogodo had these people in mind when in conveying land to Messrs. M.B. Mclver & Co. Limited, through their agent, Mr. John Grady, 1902, it was recited through their Ogodo was conveying’ ‘for himself on behalf of his heirs and successors lawful possession, title and interest and all of the above-named District whose consent is in accordance with the law and custom prevailing in southern Nigeria, West Africa.’

The District in the recital was Ogodo’ s Town, Sapele, in Southern Nigeria. It is obvious that the conveyance by late Chief Ogodo to Mclver Company Limited was on behalf of the people who have any proprietary interests in Ogodo Town and not only for Ogodo family or children. The evidence which I have accepted is that 2nd and 3rd defendants and Kekeke family have such interests in Ogodo Land plaintiffs may found on the said judgment and the judgment of the Supreme Court in suit No. SC/79/82 confirming the said judgment of the Sapele High Court.

15. Inspite of the said judgment and inspite of repeated demands, the defendants have treated the sums of money due under the 1902 lease as if Ogodo Family are solely and beneficially the owners of the land lease in complete disregard of the plaintiffs’ rights and have refused to accept the plaintiffs as being entitled to any interest in the said lease.
16. Plaintiffs by their solicitors’ letter Ref. No. TJO/187/GC/85/EF (a) wrote to the 3rd defendant (copying 1st and 2nd defendants) demanding particulars of outstanding rents or moneys due in

respect of the land and suspension of all payments due under the lease. 3rd defendant by their solicitor K.O. Longe & Co., wrote a letter dated 16/7/85 in reply, but it has since done nothing to meet plaintiffs’ demands. Wherefore plaintiffs claim against the defendants jointly and severally as follows:-

(1) An order apportioning the rent payable by the 3rd defendant between the plaintiffs and the 1st and 2nd defendants.

(2) An order that 1st and 2nd defendants do render a true account of all rents received by them from the 3rd defendant since the judgment in Suit No. S/23/74 payment over to plaintiffs of their share of the said rent.

(3) An order of injunction restraining the 1st and 2nd defendants from receiving the aforesaid rent to the exclusion of the plaintiffs and 3rd defendant from paying over to the 1st and 2nd defendants to the exclusion of the plaintiffs the aforesaid rent.”

The 1st and 2nd defendants, for their part, pleaded, inter alia in their amended statement of defence thus:-

8. By Okpe Native Laws and Custom of Ogodo family of Okuogodo Okpe, the first person to clear an area of its virgin forest and settled there with his family automatically acquires title to such an area which has come under his possession. After the death of such a founder, title to the land passes over to his descendants, that is, the children of such a founder and later to his descendants to the exclusion of his paternal or maternal relations who live with the founder except such a relation or relations are given a gift intervivos of a defined part of the land. The rents paid by the A.T. &P, Sapele to the Ogodo family in respect of the area leased which is the subject matter in controversy in this suit, that is, the Mclver parcel of land has always been enjoyed exclusively by Ogodo and later his descendants to the exclusion of relations.

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15. The defendants admit that they instituted suit No. S/23/74 against the plaintiffs challenging the plaintiffs in respect of the plaintiffs’ dealings with the defendants’ land at Ugbeyiyi which the defendants averred was part of their land. The defendants ‘ exclusive ownership of the area now occupied by A.T.& P. from Mclver was not an issue in the trial. The defendants in S/23/7 4 did not file a counter-claim. The defendants will at the trial found on the pleadings filed by both parties and the judgment both in the court of trial and in the Supreme Court.
16. The defendants deny paragraph 14 of the Statement of Claim and will put the plaintiffs to the strictest proof of the averments in this paragraph.
17. The defendants admit leasing the land in dispute in this suit to Mclver from whom A.T. & P. acquired their interest as stated in paragraphs 15 & 16 of the Statement of Claim and maintain that the property in question was the exclusive property of Ogodo family who inherited the interest of the original Ogodo who founded the area when it was a virgin forest and settled there with his family and that at no time did the plaintiff’s grandmother Mivayegbedia live with Ogodo in the area in dispute, that is, the area leased to Mclver now acquired by the 3rd defendant.
18. In further support of the 1st – 2nd defendants’ contention that the area in question was founded by Chief Ogodo occupied by Chief Ogodo and his family living in his houses built on the land before it was leased to Mclver and that after the lease, the rents for the land and compensation for his houses were enjoyed exclusively by Ogodo and later his direct children, the defendants will rely on the judgment of the West African Court of Appeal in Appeal No. WAC 1848 dated 30/4/43 from suit No. W/37/1941 between (1) Chief Ayomano, (2) Chief Asan Edwin Omarin on behalf of themselves and the Chiefs and people of Okpe Clan as plaintiffs/respondents and Ginuwa II, His Highness the Olu of Itsekiri for himself and as representing the Itsekiri people of Sapele as defendants/appellants in relation to the ownership of the area in dispute in the present suit.
19. The scholarship awarded by the 3rd defendant to Ogodo family was enjoyed exclusively by the grand-children of Chief Ogodo only and not the children of Chief Ogodo’ s relations. The letters from the 3rd defendant awarding or renewing the scholarship to Ogodo family will be founded upon at the trial.”

The 3rd defendant’s position is shown by paragraph 7 of their statement of defence where they pleaded that –

“7. The 3rd defendant avers that it is a tenant and stakeholder only and will comply with the Order of the Court when any apportionment is made in respect of rents not already paid.”

They took no part in this appeal.

This case is essentially between the present appellants and the 1st set of defendants. The plaintiffs and the 1st set of defendants shall hereinafter be referred to simply as appellants and respondents respectively.

The case proceeded to trial at which evidence was led on both sides. In a considered judgment, the learned trial judge found –

1. That in suit No, S/23/74 issues were joined between the appellants and the respondents herein as to the founder of the area known as Mclver now A.T. &P. and also as to who leased the land to Mclver.
2. “From the portion of judgment quoted the Hon. Judge no doubt interpreted the lease agreement Exhibit ‘D’ to mean that the conveyance by late Chief Ogodo to Mclver was not on behalf of the Ogodo family or children alone but on behalf of the people who have any proprietary interests in Ogodo town. He went further to say that the 2nd defendant (the Ebbah family), 3rd defendant (Emagun family) and Kekeke family have such interest in Ogodo land.”
3. That there was no where in the pleadings of the present appellants and the respondents in suit S/23/74 where issues were joined as to what capacity Chief Ogodo leased the land to Mclver. “The issue as to what capacity Chief Ogodo leased the land to Mclver is therefore incidental to the main issue as to who founded the land.
4. That although “the parties in the present suit are the same as in suit No. S/23/74 both representing their respective families,” “the interpretation of Exhibit D by the Hon. Judge in that suit should not be regarded as final judgment.. .. on the issues joined.”

The appellants’ case was dismissed.

Dissatisfied with this judgment, the appellants appealed unsuccessfully to the Court of Appeal (Benin Division). With leave of the court below, the appellants have further appealed to this court upon 8 grounds of appeal.

Pursuant to the rules of this court, the parties filed and exchanged their respective written briefs of argument. In the appellants’ brief the following issues are set down as calling for determination in this appeal, to wit:

1. Were the learned justices right in their view that the pronouncement of Ogbobine J or his interpretation of the 1902 lease Exhibit D – in the previous suit Exhibit C did not amount to a decision.
2. Were the learned Justices right in law in their view that the question raised on the Mclver lease and resolved in suit No. S/23/74 is not the same as the question raised in the current suit.
3. Were the learned Justices right in affirming the decision of the trial court on the basis that the principle of issue estoppel did not apply in this case.
4. Were the learned Justices right in raising and deciding a matter not arising from any of the grounds of appeal.
5. Were the learned Justices entitled in law to treat the judgment in suit No. S/23/74 as confirmed by Exhibit ‘E’ – as if it was on appeal before it.”

The respondents, for their part, rely on the following two issues they formulated in their brief, that is to say –

(a) Whether a decision or remark made by the trial court not based upon the issues raised in the pleadings can constitute an issue estoppel on which a new action can be founded.

(b) Whether the interpretation of Exhibit ‘D’ by the learned trial Judge in S/23/74 outside the content of Exhibit ‘D’ which went to no issue can establish an issue estoppel as claimed by the appellants in this appeal.

The appellants rested their case on issue estoppel based on the findings by Ogbobine J in suit S/23/74 that Ogodo in executing the lease agreement with Messrs. Mclver (Exhibit D) acted not on behalf of himself alone but also on behalf of others that included the appellants. Hence those others were entitled to a share in the rents accruing under the lease agreement. In my respectful view, therefore, the issue arising in this appeal is whether issue estoppel as claimed by the appellants arose, and was decided in suit No. S/23/74 so as to entitle the appellants to judgment in the present case.

Mr. Okpoko, SAN, learned leading counsel for the appellants has argued both in his brief and in oral arguments that issue estoppel arose. Referring to relevant paragraphs of the pleadings of the parties, learned senior advocate submitted that the parties joined issue in S/23/74 as to who were the beneficial lessors in the 1902 lease to Mclver (Exhibit D) and that the issue was decided in favour of the appellants by Ogbobine J in that suit. Counsel criticised several passages in the judgments of the two courts below leading them to decide otherwise. I shall touch on some of these passages in the course of this judgment.

He submitted that as the parties, issues and subject-matter are the same in S/23/74 and the instant action and as the issue of the capacity in which Ogodo executed the lease agreement with Mclver (Exhibit D) had been decided in S/23/7 4 by Ogbobine J. and affirmed by this court, the two courts below were in error to allow the respondents to contest that issue all over again in the instant case. Learned senior advocate finally submitted that two courts below were in error to treat the judgment in suit S/23/74 (Exhibit C) as if it was an appeal before them rather than give effect to it. He urged us to interfere with the concurrent findings of the two courts below, set aside their judgments and enter judgment for the appellants in terms of their claims.

Learned counsel for the respondents, Mr. Ororho on the other hand argued, both in respondents’ brief and in oral argument, in favour of the judgments of the two courts below. He submitted that issue estoppel did not arise in this case in that the capacity in which Ogodo executed Exhibit D did not arise on the pleadings in suit S/23/74 and the interpretation given to Exhibit D by Ogbobine J in Exhibit C was not based on any issue arising in the case. Counsel further submitted that as appellants’ case in the instant action was based on a purported issue estoppel which failed, their action was based on a purported issue estoppel which failed, their action was misconceived and was rightly dismissed by the trial High Court which decision, he contended, was rightly affirmed by the court below. He observed that appellants have not urged in this appeal anything new to the arguments they advanced in the two courts below. He urged us to dismiss the appeal and affirm the judgment of the court below.

Both learned counsel advanced a number of authorities in their written and oral arguments, a number of which I shall consider in this judgment.

Perhaps I may at this stage give a resume of the facts as given by the appellants leading to the institution of the suit leading to this appeal. Late Chief Ogodo, the ancestor of the respondents was nephew of one Madam Mivayegbedia, appellants’ grandmother and who they claimed lived at Ugbunurhie village.

Mivayegbedia was said to be a sister of the half blood of Erukayemre, the mother of late Chief Ogodo. Chief Ogodo had some misfortunes at Okuepete in Amukpe where he was living. As a result of this, his aunt Mivayegbedia brought him to live with her. The area given to him to live as at now, developed into what is today known as Okuogodo, that is Ogodo village.

Sometime at the beginning of the last century some Europeans came to Sapele to establish trading business. One of them was Mclver who approached Madam Mivayegbedia for land at Ugbunurhie by the River. Being of old age she mandated Chief Ogodo to negotiate with Mclver on her behalf. Chief Ogodo did so and the result was the deed of lease he executed with Mclver, Exhibit D, dated 6th August 1902. Both Mivayegbedia and Chief Ogodo enjoyed the rents accruing from the lease in their life time.

Ebba was child of Mivayegbedia and father of the appellants. He moved away from Ugbunurhie where his mother had settled and founded his own village known and called Ugbeyiyi. On the death of Mivayegbedia, Ebba succeeded to her right over Ugbunurhie and he too continued to enjoy the rents accruing from the Mclver lease.

Ebba and chief Ogodo died and their families continued to live in harmony, particularly when Itoto Ogodo was head of the Ogodo family and the two families continued to share the rents on the Mclver lease among themselves. I may mention that the interests of the Mclver &Co. Ltd. had passed to African Timber & Plywood Ltd. which later became a Division of the UAC Nigeria Ltd. (the 3rd defendant in these proceedings). On the death of Itoto Ogodo, however, members of the Ogodo family denied the Ebba family of a share in the rents and matters came to a head when in 1974 the Ogodo family sued the Ebba family, among others claiming-

“(1) As against all the defendants A Declaration that the plaintiffs and members of their family are according to Native Law and Custom, the owners in possession and in absolute title to all that piece or parcel of land called Ogobobare situated at Sapele within the jurisdiction of this Honourable Court the area, extent and limit of the said land is more particularly shown on the survey plan No. TJM 1783 and accordingly hatched Green in the said survey plan filed with this statement of claim.

(2) As against the second and third defendants only An order for the payment over to the plaintiffs of the amount of money found to have been paid as compensation by the Western Region Government/Midwestern State Government to the second and third defendants in error and or as a result of the false representation made to it by the second and third defendants.

(3) As against the second and third defendants only an order for the payment over to the plaintiff of the amount of N1,200.00 (One thousand two hundred Naira) received as ten years rent by the second and third defendants from Koloko Importers and Exporters Limited by falsely representing themselves as owners of part of Ogobobare land in Sapele.

(4) As against the second and third defendants only an order of forfeiture in respect of the area occupied by them because of the grave misconduct on part of the said defendants in challenging the plaintiffs’ title to the land and dispossessing the plaintiffs of portions of the said land.

(5) A perpetual injunction restraining the defendants, their agents, servants/privies from entering the said plaintiff s land known as Ogobobare edged Green on the survey plan No. TJM 1783 filed

with this Statement of Claim.”

The land originally leased to Mclver & Co. Ltd., and now known as A.T. & P land is within the land claimed by the Ogodo family in this action. See Exhibit N.

By the pleadings of the parties in the said action, particularly paragraphs 11 & 12 of the respondents’ statement of claim and paragraph 11 of the appellants’ statement of defence the issues as to who founded the A.T &P land and who leased it originally to McIver & Co. Ltd. were put in issue, among other issues arising in the case. At the end of the trial in that case, the learned trial Judge, Ogbobine J, in a 56-page judgment, found:

“While the fact that John Afejuku’ s father lived in Ugbeyiyi village with his family was not denied by the 2nd defendant, the contention of 2nd Afejuku authority to settle in the village could not be true. My belief is that Afejuku went to Chief Ogodo to obtain permission because Chief Ogodo was the head of a large family organization known as Ogodo family who owned the entire area of land known as Ogodo family land. This family organisation included the descendants of Emagun, Kekeke, Ebba, and that of Ibono (grandmother of Andrew Esiso Eghrujakpor, 8th P.W.) and it was as a result of the acceptance of this family set up under the name of Ogodo quarter that it became possible for Chief Godwin Asakosomi Kekeke (5th P.W.) to represent Ogodo quarter, both in the body known as landlords representatives of Sapele Okpe community, and in the Okpe Communal Land Trust which was established by law. It was also the acceptance of 2nd defendant as a member of the said Ogodo family for land owning purposes that he was also a Trustee of the Okpe Trust at a certain time. It was never suggested to ChiefKekeke (5th P.W.) and 2nd defendant that their membership of the Sapele Okpe Communal Land Trust derived its strength from other sources.”

2. “The land was described as Ogodo land in early times, not in the sense that it belonged to late Chief Ogodo personally or his immediate children, but that it was the property of Chief Ogodo and all his relations who had settled with him at Ajogodo originally and who for various reasons had to extend their settlements to other parts of the land which is today described as Ogodo quarter.”
3. “I accept the evidence that Ogodo village itself was founded by late Chief Ogodo, but reject plaintiffs’ case that he personally founded the settlement now known as Ugbeyiyi, and that the name, Akukpamara was invented purposely for this case.”
4. “I am satisfied that when Ebba settled with his children at Ugbeyiyi, he did so as of right and that he obtained no permission from Chief Ogodo. In fact, it is my finding that it was Ebba’s possession of Ugbeyiyi land that clothed it with being part of Ogodo quarter as there was no evidence, and there could be none to show that when Chief Ogodo moved from Mclver area of Ajodogo Village he was able to map out the entire area of land he had acquired. There is no doubt that what we knew as Ogodo quarter or ward today came into existence as a result of out-spreads by Ogodo relations who had previously lived as Agogodo. The out-spreads were accomplished through farming and establishment of camps and villages by different persons, on the land.”
5. “I accept and believe the evidence that Ebba family is one of such minor families in Sapele; although Ogodo family is the principal family in the quarter to which both families belonged. To this extent, I am convinced that members of Ebb a family are the owners of the land in their possession.”
6. “I find as a fact that Ebba family are the owners of the entire area of land verged red in their plan, Exhibit AA.”
7. “The 2nd and 3rd defendants are no customary tenants on Ogodo quarter, and there was no doubt that late Chief Ogodo had these people in mind when in conveying land to Messrs. M.B. Mclver & Co. Ltd.; through their agents, Mr. John Grady, 1902, it was recited; that Chief Ogodo was conveying ….” For himself on behalf of his heirs and successors lawful possession, title and interest and all of the above-named District whose consent is in accordance with the law and custom prevailing in Southern Nigeria, West Africa.” The District in the recital was Ogodo’s Town, Sapele, in Southern Nigeria. It is obvious that the conveyance by late Chief Ogodo to Mclver Company Ltd. was on behalf of the people who have any proprietary interests in Ogodo town and not only for Ogodo family or children. The evidence which I have accepted is that 2nd and 3rd defendants and Kekeke family have such interests in Ogodo land and except there are proven acts of misconduct recognised by Okpe native law and custom they cannot be ejected from the land nor can their holdings be forfeited. There is no such evidence in this case and the claim is entirely misconceived.”

The learned Judge concluded thus:

“In conclusion, I am of the opinion that this is a case which should not have come to court, at least, in the form of the reliefs claimed, as the entire case is without any merit, and it is wholly dismissed against all the defendants with costs.”

Respondents’ appeal to the Court of Appeal was successful. But on further appeal to this court by the appellants, the judgment of the Court of Appeal was set aside and that of Ogbobine J. was restored. It would appear from the judgment of this court that finding (7) above was not questioned by the respondents either in the Court of Appeal nor in this court as it did not feature at all in the lead judgment of Eso, JSC.

Following the judgment of this court restoring the judgment of Ogbobine J. the appellants demanded from the respondents their own share of the rent being paid by the 3rd defendant to the respondents in respect of the lease, Exhibit D but the respondents would not pay. Hence the present action leading to this appeal.

It is clear from the claims in this case that the judgment Exhibit C is the plank on which the appellant premised their case. In effect, they are saying that as the court found in S/23/74 that they are entitled to a share in the rents accruing from Exhibit D and as the respondents have denied them of it, they are entitled to succeed in their claims. They thus rely on issue estoppel, that is that the issue of their entitlement to a share in the rents having been decided in suit S/23/74, the respondents are estopped from averring to the contrary. What then is issue estoppel And does it apply in this case to the benefit of the appellants

In Duchess of Kingston ‘s Case (1776) 2 Smith’s Leading Cases (12th edition) 754, the following note appeared:

“An estoppel, therefore, is an admission; or something which the law treats as equivalent to an admission, of an extremely high and conclusive nature – so high and so conclusive, that the party whom it affects is not permitted to aver against it or offer evidence to controvert it.”This passage was cited with approval by the Federal Supreme Court (as this court was formerly known) in Ihenacho Nwaneri & Ors. v. Nnadikwe Oriuwa & Ors (1959) 4 FSC 132, (1959) SCNLR 316. In Standard Bank of Nigeria Ltd. v. Chief Festus Ikomi (1972) 1 SC 164 at 177-179 where the issue of estoppel was raised to preclude a defendant raising once again the validity of certain document that had been held in a previous action to be invalid, this court, per Madarikan JSC, observed:

“We consider that Mr. Bentley’s contention is well founded. Indeed, if such a rule does not prevail, litigation would be interminable. Support for this view is to be found in the recent decision of this court in O. 0gwo & others v. Chief Kanu Ekpeazu & others. SC. 231/1970 delivered on 29/10/71 in which we said:

‘The effect of what Mr. Ogwo claimed he could do was to ignore the decision of three courts including the then highest possible appellate court (the Privy Council) and to take a point that could (and indeed should as lack of jurisdiction ought to be pleaded though it may otherwise be raised at the hearing) have been taken. We do not think that in such circumstances, notwithstanding the provisions of section 52 of the Evidence Act, that it was in any way an error of the learned trial judge to hold that this was an abuse of the process of the court We therefore refused to allow Mr. Ogwo to argue on the merits that the learned trial judge was wrong to come to the conclusion that he did that the order transferring the suit to the Aba High Court was in fact validly made as we did not think he was entitled to raise the issue.’

That decision is in accord with the following observations of Wegram V-C Henderson v. Henderson (1843) 3 Hare 114reported in 67 E.R. 313 at page 319.

‘I believe I state the rule of the court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of the matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.’

This passage was quoted with approval by the Privy Council in Hoystead and others v. Commissioner of Taxation (1926) A.C. 155 at page 170 and was therein described as settled law on the subject; and also by the High Court of Lagos in A. G. Ijale v. A. G. Leventis & Co. Ltd. (1961) 2 SCNLR 386, (1961) ANLR 762 at page 769.

We must therefore come to the conclusion that having unsuccessfully contested the validity of Exhibits A and B in suit No. W/50/60, it was not competent for the respondent to contend in any subsequent proceedings between the parties that the documents were void. It follows, in our view, that the learned trial judge was in error in entertaining the defence of the respondent that the documents were void and grounding his judgment upon it.”

Issue estoppel was again considered by this court in Fadiora v. Gbadebo (1978) 3 SC 219, 228-9 where this court, per Idigbe JSC, explained:

“Now, there are two kinds of estoppel by record inter partes or per rem judicatam, as it is generally known. The first is usually referred to as ’cause of action estoppel’ and it occurs where the cause of action is merged in the judgment, that is, Transit in rem judicata (see King v. Hoare (1844) 13 M & W 495 at 5041. Therefore, on this principle of law (or rule of evidence) once it appears that the same cause of action was held to lie (or not to lie) in a final judgment between the same parties, or their privies, who are litigating in the same capacity (and on the same subject matter), there is an end of the matter. They are precluded from relitigating the same cause of action. There is, however, a second kind of estoppel inter partes and this usually occurs where an issue has earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in these circumstances, ‘issue estoppel’ arises. This is based on the principle of law that a party is not allowed to (i.e. he is precluded from) contending the contrary or opposite of any specific point which having been once distinctly put in issue, has with certainty and solemnity been determined against him. (See Qutram v. Morewood (1803) 3 East 3461.

Issue estoppel applies whether the point involved in the earlier decision is one of fact or law or one of mixed fact and law. However, for the principle to apply, in any given proceedings, all the pre-conditions to a valid plea of estoppel inter partes or per rem judicata must apply, that, (1) the same question must be of decision in both proceedings (which means that the question for decision in the current suit must have been decided in the earlier proceeding), (2) the decision relied upon to support the plea of issue estoppel must be final (3) the parties must be the same (which means that parties involved in both proceedings must be the same) (per se or by their privies).”See also: S.D. Ojo v. Jean Abadie, 15 WACA 54, at 55 where it was held:

“It is hardly necessary to add that when once it is made clear that the self-same question is substantially in issue in two suits, the precise form in which either suit is brought, or the fact that the plaintiff in the one case was the defendant in the other is immaterial, the estoppel subsists between the parties.”

and Onyeama Ezenwa v. Mazeli & Ors, 15WACA 67. The issue was again revisited by this court in Ezenwani v. Onwordi (1986) B 4 NWLR (Pt.33) 27. This court approved the above passage of Idigbe JSC and Kazeem JSC. at p. 43 said:

” I entirely agree with both the learned trial judge and the Court of Appeal that the issue of traditional history having been previously decided in the 1962 cases between both parties in this appeal, and on the same land in dispute, against the appellants, it has become an ‘issue estoppel’. Hence the appellants were estopped from relitigating the issue in this case.”

See also the dicta of Obaseki, Aniagolu and Oputa JJSC in the case. Another case I need refer to is Aro v. Fabolude (1983) 2 SC. 75; (1983) 1 SCNLR 5 8 at 67-68. In a previous action in the Customary Court between the same parties over the same land, that court had held that the previous owner died without a son. In a subsequent action between the parties plaintiff sought to prove that the previous owner died leaving behind a son. It was held by this court that he was precluded from so proving as he was caught by the rule of issue estoppel. Aniagolu JSC observed at pp. 98-99:

“The basis for the plaintiff’s claim was therefore thrown overboard in that judgment of 1972. The said basis was that he was the son of Aro Orija and that Aro Orija was the owner of the land in dispute and that the land descended to him as direct son of the said Aro Orija. Since the court held that Aro Orija never had a son, having died without an issue, the substratum of the plaintiff’s claim had gone and any claim made by him on the basis that he was the son of Aro Orija must necessarily fail. That issue having been settled in 1972 in a decision of a court of competent jurisdiction, the plaintiff could not be allowed to re-open the issue.”

And at pp. 100-101 he said:

“As part of the principle that society must discourage prolongation of litigation, the doctrine has been developed that a party to civil proceedings is not allowed to make an assertion against the other party, whether of facts or legal consequences of facts, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential element in his previous cause of action or defence, in a previous suit between the same parties or their predecessors in title, and was determined by a court of competent jurisdiction, unless further material be found which was not available, and could not, by reasonable diligence, have been made available, in the previous proceedings. (See: Mills v. Cooper (supra) at page 104”.

The learned Justice of the Supreme Court cited with approval two passages in Fidelitas Shipping Co. Ltd. v. VIO Exportchleb (1966) 1 QB 630,640 where Lord Denning M.R. explained:

“That issue having been decided by the court, can it be reopened before the umpire I think not. It is a case of ‘issue estoppel’ as distinct from ’cause of action estoppel’ and fact estoppel, ‘a distinction which was well explained by Diplock L.J. In Thoday v. Thoday. The law, as I understand it, is this: if one party brings an action against another for a particular cause and judgment is given upon it, there is a strict rule of law that he cannot bring another action against the same party for the same cause. Transit in rem judicata: See King v. Hoare. But within one cause of action, there may be several issues raised which are necessary for the determination of the whole case. The rule then is that, once an issue has been raised and distinctly determined between the parties, then, as a general rule, neither party can be allowed to fight that issue all over again. The same issue cannot be raised by either of them again in the same or subsequent proceedings except in special circumstances, see Badar Bee v. Habib Merican Noordin, per Lord Macnaghten. And within one issue, there may be several points available which go to aid one party or the other in his efforts to secure a determination of the issue in his favour. The rule then is that each party must use reasonable diligence to bring forward every point which he thinks would help him. If he omits to raise any particular point, from negligence, inadvertance, or even accident (which would or might have decided the issue in his favour), he may find himself shut out from raising that point again, at any rate in any case where the self-same issue arises in the same or subsequent proceedings. But this again is not an inflexible rule. It can be departed from in special circumstances.”

and at p. 642 where Diplock L.J. said:

“In the case of litigation the fact that a suit may involve a number of different issues is recognised by the Rules of the Supreme Court which contain provision enabling one or more questions (whether of fact or law) in an action to be tried before others. Where the issue separately determined is not decisive of the suit, the judgment upon that issue is an interlocutory judgment and the suit continues. Yet I take it to be too clear to need citation of authority that the parties to the suit are bound by the determination of the issue. They cannot subsequently in the same suit advance argument or adduce further evidence directed to showing that the issue was wrongly determined.

Their only remedy is by way of appeal from the interlocutory judgment and, where appropriate, an application to the appellate court to adduce further evidence: but such application will only be granted if the appellate court is satisfied that the fresh evidence sought to be adduced could not have been available at the original hearing of the issue even if the party seeking to adduce it had exercised due diligence.”

Diplock LJ had earlier in Thoday v. Thoday (1964) P. 181 at 197-198 explained the law on estoppel thus:

“The particular type of estoppel relied upon by the husband is Ogodo and his father acquired more lands in the area and on the death of his father Okubor, the control and management of the land fell on the plaintiffs ancestor, Chief Ogodo. Chief Ogodo built a farm hut on the land close to Orhirhogbon creek so when it became estoppel per remjudicata. This is a generic term which in modem law includes two species. The first species, which I will call cause of action estoppel, is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the none-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, i.e., judgment was given upon it, it is said to merge in the judgment, or, for those who prefer Latin, transit in rem judicata. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicata, this is simply an application of the rule of public policy expressed in the Latin maxim’ Nemo debet bis vexari’ ‘pro una et eadem causa ‘. In this application of the maxim ‘causa’ bears its literal Latin meaning. The second species, which I will call ‘issue estoppel’ is on extension of the same rule of public policy. There are many causes of action which can only be established by proving that two or more different conditions are fulfilled. Such causes of action involve as many separate issues between the parties as there are conditions to be fulfilled by the plaintiff in order to establish his cause of action; and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action. If in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was.”

It is clear from all the authorities I have cited above and many more that for issue estoppel to apply the following ingredients must be present –

1. the parties must be the same in the previous and present actions;
2. the same question that was decided in the previous action must arise in the present action in respect of the same subject matter and
3. that question must be a final decision of a competent court. I now turn attention to the instant case. There is no doubt, and this is not disputed by the respondents, that the parties in the instant case were parties in Suit S/23/74. And that both actions relate to the same piece of land. In paragraphs 10, 11 and 12 of their statement of claim in suit S/23/74, the respondents as part of the traditional history in support of that claim for ownership of the land in dispute, pleaded thus:
4. Ogodo and his father acquired more lands in the area and on the death of his father Okubor, the control and management of the land fell on the plaintiffs ancestor, Chief Ogodo. Chief Ogodo built a farm hut on the land close to Orhirhogbon creek so when it became necessary that the earliest settlers should quit the area as a result of the facts pleaded in paragraphs 7 and 8 above, Chief Ogodo moved into his farm hut and lived there with his children. The plaintiffs like their forebears exercised and still continue to exercise maximum acts of ownership over the land as it was a virgin forest when Chief Ogodo founded it. ChiefOgodo in 1902 leased the area to Mclver limited as family land and this area is shown on the survey plan filed with this statement of claim. Plaintiffs will at the hearing of this action rely on the said Deed of Lease.
5. Prior to the lease referred to at paragraph 10 above, late Chief Ogodo had founded more lands where he, his children and slaves farmed extensively, without any let or hindrance. Chief Ogodo had many children and amongst them was one Ogobobare so named after one of his lands. The area was so named because of the abundance of red plantain fruits in the area. He named the other

Ogotien. The two parcels of land Ogobobare and Ogotien are separated today by the Sapele/Warri Road. The area directly affected by this action is Ogobobare and hatched Green as aforesaid on the survey plan filed with this Statement of Claim while Ogotien represents the area shown as land of Ogodo family on the Western and North-Western side of the said survey plan.

12. Chief Ogodo founded a village on the Ogotien side, while he kept his slaves busy at Ogobobare. His children also farmed there as aforesaid. Chief 0godo made the grant of the lease to Mcl ver which later became A.T. and P. Sapele, the rent of which plaintiffs’ family enjoy exclusively.”

The appellants replied to the above paragraphs in their statement of defence thus:

10. Second defendant denies paragraphs 10, 11 and 12 of the Statement of Claim and avers that Ogodo was born in Ogirhibo in Amukpe after it was founded. After the death of his father, Ogodo lived with his mother’s brother, Anunu who later handed him over to Odjegba when he (Ogodo) became unruly. Mivayegbedia did not like her sister’s son living in the same compound with her as servant of her husband’s brother. She therefore pleaded for and secured the release of Ogodo by Odjegba. After his release, Ogodo went to Sapele and settled in Egborode Quarters – a spot near the present day Major Bowen A venue Extension. He later left Ogborode Quarters and settled at Okuepete with late Ova – the father of Esiri who he met already living in the camp.
11. In further answer to paragraphs 10, 11 and 12 of the Statement of claim, second defendant avers that after the death Adagworitse, Mivayigbedia came to Sapele to meet her late husband’s brothers, Evwidia, Abuke and Eraware who gave her a spot at Ugbunurhie (the present site of African Timber and Plywood) A.T. &P) to settle on with her children. With the help of her late husband’s brothers, Mivayegbedia built a house near Ugbunurhie and settled there with her children. She and her children occupied the adjoining area and farmed extensively there. Later Mivayegbedia brought Ogodo from Okuepete to the new place at Ugbenurhie when at Ugbenurhie when he suffered series of misfortunes at Okuepete and he lost many wives and children. The spot where Ogodo lived when Mivayegbedia brought him from Okuepete became known as Ogodo village. Later when Mclver asked her for land, she mandated Ogodo to act for her as her brother and agent as Ogodo was then a popular figure within the family.

In respect of the issue raised in these pleadings the learned Judge found –

“The 2nd and 3rd defendants are no customary tenants on Ogodo quarter, and there was no doubt that late Chief Ogodo had these people in mind when in conveying land to Messrs. M.B. Mclver & Co. Ltd. through their agent, Mr. John Grady, 1902, it was recited; that Chief Ogodo was conveying ….. For himself on behalf of his heirs and successors lawful possession, title and interest and all of the above-named District whose consent is in accordance with the law and custom prevailing in Southern Nigeria, West Africa.” The District in the recital was Ogodo’s Town, Sapele, in Southern Nigeria. It is obvious that the conveyance by late Chief Ogodo to Mclver Company Ltd. was on behalf of the people who have any proprietary interests in Ogodo town and not only for Ogodo family or children. The evidence which I have accepted is that 2nd and 3rd defendants and kekeke family have such interests in Ogodo land and except there are proven acts of misconduct recognised by Okpe native law and custom they cannot be ejected from the land nor can their holdings be forfeited. There is no such evidence in this case and the claim is entirely misconceived.”

This finding was not disturbed on appeal. it is, therefore, final between the parties. It follows that all the ingredients constituting issue estoppel are present here.

The court below, as well as the trial court found that issue was joined in suit S/23/74 between the parties as to whether Chief Ogodo executed Exhibit D on his behalf or in a representative capacity. Having so found and having also the trial Judge in that case found that Chief Ogodo executed Exhibit D in a representative capacity and that the appellants were among those represented by Chief Ogodo, both courts ought to hav~ found for the appellants on their claims. The trial court should not have allowed the respondents to prove the contrary – see S.D. Ojo v. Jean Abadie (supra). Unfortunately, both courts treated Exhibit C as if it was on appeal before them. They are wrong in so doing: Whatever their views on it, it was not their duty to depart from it. Their duty was to give effect to it, moreso that it is a final decision.

In conclusion, I am aware that the learned trial Judge, with respect, tried to resile from her previous finding that in S/23/74 “issues were joined as to the founder of the area known as Mclver now A.T.&P. and also as to who leased the land to Mclver”. In the course of her judgment the learned judge remarked.

“The issue in the instant case is not the mere interpretation of the lease agreement. The question is whether the interpretation made is an issue resolved finally.”

After setting out relevant paragraphs of the pleadings of the parties in S/23/7 4 from Exhibits A & B, she observed:

“The 2nd defendant now the plaintiffs at pages 9 to 10 of Exhibit ‘B’ in their statement of defence paragraph 11 vehemently refuted the averment in paragraph 12 of Exhibit ‘A’. The learned senior advocate submitted that the issues joined in suit No. S/23/74 were as to what capacity Chief Ogodo leased the land to Mclver. He argued that this issue was resolved in favour of the plaintiffs here. With respect I disagree. Paragraphs 10, 11 and 12 of Exhibit ‘A’ B joined issues with paragraph 11 of the Statement of Defence of the 2nd defendant at pages 9 to 10 of Exhibit ‘B’. There is nowhere in any of these paragraphs where issues were joined as to what capacity Chief Ogodo leased the land to Mclver. The issue as to what capacity Chief Ogodo leased the land to Mclver is therefore incidental to the main issue as to who founded the land.”

Proceeding further, she concluded:

” can we hold here that the interpretation of Exhibit ‘D’ by the Hon. Judge in that suit should be regarded as final judgment on the issue My answer to this is ‘No’. The issues joined on the Mciver land now A.T. & P land are who founded the Mclver land and who leased out the land. The main issue here is who founded or owned the land that was leased out. The lease agreement flows from the ownership of the land. There was no finding as to who founded or owned the land. The interpretation of the lease agreement cannot therefore be regarded as a final decision on the issues joined .

…………………………………. I refuse to accept that the interpretation of Exhibit ‘D’ in Exhibit ‘C’ which was not canvassed for by any of the parties in suit No. S/23/74 should be taken as issue estoppel. The issues canvassed for by both parties were who founded the Mclver area and who leased the area to Mclver. I hold that the issues were not resolved in Exhibit ‘C’.

Of course, her final conclusion is at variance with her earlier finding that in S/23/7 4 “issues were joined as to the founder of the area known as Mclver now A.T. F & P and also as to who leased the land to Mclver”, which finding is in accord with the pleadings in S123/7 4. Her final conclusion on the issue is, with respect, erroneous. The question as to who leased land to Mclver arose in S/23/74 and was resolved in that case by the trial court whose decision was affirmed by this court in Exhibit E. It is not open to the learned trial Judge in this case to question the finality of that decision.

Unfortunately, the court below fell into the same error. That court correctly identified the issue arising in the instant action when Akpabio JCA in his lead judgment said:

“From the above arguments it becomes clear that there is only one question for determination in this appeal, namely whether the doctrine or principle of ‘issue estoppel’ was properly raised in this

case, and should have been allowed by the learned trial judge.”

After reviewing the law on issue estoppel and the argument of learned counsel for the parties, Akpabio JCA, however, observed:

“Having all the above principles in mind, I have carefully read through the pleadings of all the parties filed in this case, as well as the judgment of Ogbobine, J. and must say that the principle of issue estoppel cannot apply in the circumstances of this case. It is a fact that a pronouncement was made by the learned trial judge in suit No. S/23/74 about the capacity in which Ogodo signed the Deed of Lease between himself and Mclver and Co. in 1902; but it is not every and any pronouncement made by a judge in a case that qualifies to be treated as a ‘ratio decidendi’.”

He went on-

” I have looked at the claim of the respondents as they appear at paragraph 38(1) – (5) of their statement of claim, Exhibit ‘A’ and can find no head of claim that require the learned trial judge to interprete any Deed of lease or document of title in the case.”

The learned Justice of Appeal again said:

“One may then ask, if the plaintiffs did not claim for the interpretation of any document, why then was the Lease Exhibit ‘D’ tendered

The answer is clearly that the said Deed of Lease was tendered as proof of ‘acts of ownership’ of land which was adjacent to land in dispute, as pleaded at paragraph 10 of their statement of claim…”

He went on to observe –

“It is true that the 2nd defendant dispute that assertion and contended that Ogodo signed the lease in question as agent of their grandmother Nivayegedia. ”

Then, rather strangely, the learned Justice of Appeal found:

“From the foregoing one will say that the parties certainly joined issues on whether Ogodo signed the lease Exhibit ‘D’ as his own or as agent to Mivayegbedia. But it is not every and any paragraph of the pleadings on which issues are joined, that a judge should give a ruling on. The learned trial judge could merely have said that he believed or did not believe that plaintiffs owned the land adjacent to the land in dispute, without going to interpret the lease, as that was a purely collateral issue. Even the, learned trial judge had no business interpreting a document which was supposed to speak for itself.”

With profound respect to the learned Justice of Appeal I find it difficult to reconcile the various pronouncements made by him in the passages above. The learned Justice seemed to have confused himself when he equated a ratio decidendi of a decision with a finding on an issue joined by the parties in their pleadings. Having found and correctly in my humble view – that on the pleadings of the parties in S/23/74 “the parties certainly joined issues on whether Ogodo signed the lease Exhibit D as his own or as agent to Nivayegbedia” and that “it is a fact that a pronouncement was made by the learned trial judge in suit No. S/23/7 4 about the capacity in which Ogodo signed the Deed of Lease between himself and Mclver and Co. in 1902”, the learned Justice ought to have also found that the plea of issue estoppel relied on by the appellants was sustained.

True enough, the interpretation of Exhibit D was not a specific claim in suit No. S/23/7 4. But appellants are not relying on cause of action estoppel but on issue estoppel. In a cause of action there may arise separate issues between the parties as there are conditions to be fulfilled by the plaintiff in order to establish his cause of action. Such was the case in suit S/23/74 where the respondents claimed a declaration of title to a piece of land that included the Mclver land. Respondents relied in that case in Exhibit D in proof of their ownership. The capacity in which Exhibit D was executed became a separate issue in the case.

The decision on the cause of action would raise between the parties estoppel per rem judicatam. But the decision on the capacity in which Exhibit D was executed would raise between them issue estoppel. To say that the learned Judge in suit S/23/74 had no business interpreting Exhibit D is a rather uncharitable criticism. I do not see how that learned Judge could have resolved the issue placed before him by the parties as to the capacity in which Ogodo executed the Mclver lease without his looking into and construing Exhibit D. I think it is the learned Judge, rather than their Lordships of the court below, that did the correct thing.

Still on the findings of the court below, Akpabio JCA in his lead judgment with which Ogebe and Ige JJCA agreed went into issues not canvassed by either party either in the court of trial or JUSTICES of the Court of Appeal, all with a view to finding for the respondents. For instance, on the course of his judgment, he said:

“Lastly, I must say that even if I am held to be wrong, i.e., just in case a higher court says that the principle of issue estoppel could apply in this case, I will go further and say that the appellant would still not be successful in the present claim, as the same defences which were available against the respondents in suit No. S/23/74, would also become available against the present appellants namely that laches and acquiescence will operate against them. Why was this suit not instituted since 1902, when the lease was made From 1902 to 1987 when this suit No. S/23/74 was instituted is 85 years.

In suit No. S/23/74 the learned trial judge held that plaintiffs had delayed for 15 years before instituting their action, and this was upheld by the Supreme Court, It is my firm view therefore that 85 years delay will equally be too late.”

Again the learned Justice of Appeal said:

“It must also be observed that the mere pronouncement by the learned trial judge in S/23/74, that Chief Ogodo signed the lease Exhibit ‘D’ in 1902, for himself and other members of Ogodo family, which included the appellants herein, could not, and did not automatically confer on the appellants the right to share from rents without establishing how their interest arose. That is because in order to be entitled to share of rents, the party must have been a joint or common owner of the property from which the rents are derived.

In the instant case the appellants have not proved precisely what area of Mclver land belonged to them, and therefore, the proportion of the rents payable to them.”

This latter gratuitous observation was, with respect, obviously based on a complete lack of understanding of the case of the parties in suit S/23/74.

The learned Justice again observed:

“One must also observe that the claim of the appellants in the instant suit appears to be clearly at variance with the pleadings in their Statement of Defence filed in suit No. S/23/74.”

Clearly all these issues were neither pleaded nor canvassed before the court below nor even at the trial court. One is tempted to think that their Lordships of the court below unwittingly descended into the arena and were content to canvass and decide, on behalf of the respondents, all and every possible issue not raised by the latter. They seemed to forget that there was no cross-appeal by the respondents before them.

I think the two courts below proceeded on wrong principles. Their judgments, therefore, cannot be allowed to stand. This appeal has merit and it is hereby allowed. The judgments of the two courts below are hereby set aside. I enter judgment in favour of the appellants on their claims (2) and (3). I however, remit claim (1) to the High Court of Delta State, Sapele Judicial Division for the apportioning of the rents to be made between the parties and a copy of the order made is to be forwarded to this court.

The appellants are entitled to their costs which I assess at N750.00 in the trial High Court, N1,000.00in the Court of Appeal and N10,000.00 in this court.

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SC.180/1994