Chief J. E. Ukusare & Ors. V. Chief Murphy Ejumudo & Ors. (2000)

LawGlobal-Hub Lead Judgment Report

BA’ABA, J.C.A.

By a writ of summons and amended statement of claim dated 13/1/92, the appellants as plaintiffs commenced an action at the Effurun High Court against the respondents as defendants claiming against them as per paragraph 29 of the amended statement of claim as follows:-

“29. WHEREFORE, the plaintiffs claim as follows:-

1. A declaration that by virtue of the facts/proceedings of suit No.W/12/71 and the agreements dated 1/3/74, 10/3/74. 16/3/74 and 15/4/74 thereon the plaintiffs are persons entitled to statutory right of occupancy over the piece or parcel of land lying and situate in Otorkporo and Okoribi in Effurun within the jurisdiction of this Honourable court.
2. A declaration that by peace agreement entered into on 10th March, 1974 which ratified those of 15/4/73 and 1/3/74 between the two families (plaintiffs and defendants), and the judgments referred to in relief (1) above, the verdicts in both suits W/127/74 and W/48/74 delivered 10/11/87 and 22/12/75 respectively were obtained by fraud/misrepresentation. They are therefore null and void.
3. A declaration that by the aforementioned judgment in relief (1) above and the said peace agreement the verdicts in suit No. W/127/74 and W/48/74 are caught by the doctrine of estoppel by conduct and representation as the issues involved in the said suits were the same in the peace agreements out of fraud/misrepresentation the defendants in the suit surreptitiously hid the facts of the existence of the peace agreements and/or judgment in relief (1) above.
4. A declaration that having regard to misrepresentation of facts of descent Eleri-Avbobonyeta being claimed to have the statue of family in Uvwie when in fact they have neither father or mother in Uvwie (being strangers) the verdict W/48/74 and W/127/74 were given in error. The strangers lack ancestral right to back the claim, and they did not buy.
5. A declaration that having regard to gross misrepresentation and/or fraud committed by defendants coupled with the existence of judgments and proceedings above as well as limitations set in peace agreement. Above judgments in Suit Nos.W/48/74 and W/127/74 were delivered in error and should be set aside.
6. A declaration that only Otorkporo land was disputed (not Okoribi) and that it is misleading (which is different or fraudulent for defendants to deny or ignore the existence of Adaze and Otorkporo Shrines owned and served by Ogbe on the lands.
7. A declaration that the Adaze shrines and Otorkporo shrines as well as Ogbe descendants long standing buildings in the area like those of Ukusare, Nikoro fairs and tenants constitute acts of possession apart from various crops, economic trees or other uses to which Ogbe had put his land.
8. A declaration that verdicts W/48/74 and W/127/74 were misled to the extent of various misrepresentation by defendant.

(a) By linking Okoribi with Otokpiri.

(b) By ignoring and denying Ogbe act of possession

(c) By falsifted and incorrect ancestral history.

(d) By existence of facts cited and acknowledged in an earlier suit W/12/11 -the entire community leadership under Late Chief Agbamu/Ayuluhu acknowledging Ogbe (Nikoro) ownership of all their lands East of old Kwale or Ugbomro Road.

(e) by fraudulent use of joint Plan LSU 960 against Ogbe despite modification in peace agreement referred to above.

9. A declaration that verdict W/48/74 AND W/127/74 are ipso facto reversible, not being validly based ill the light of reliefs 29 (7, 8, 9 above) herein enunciated.
10. An order of interlocutory injunction restraining the defendants, their agents or privies from carrying out any acts of trespass by way of leasing or doing anything to plaintiff’s tenants or their properties pending the determination of this suit.
11. An order of perpetual injunction restraining the defendants, their agents, or privies from carrying out any acts of trespass by way of leasing or doing anything to any portion of the said land or quitting or doing anything to any of plaintiff’s tenants or their properties on the said land.

In their reaction, the respondents herein, as defendants filed a statement of defence dated 18/10/91, denying the claims and in paragraph 23 of the statement of defence pleaded that if anybody is caught by the doctrine of resjudicata, estoppel and standing-by, it is the plaintiffs who being members of Ogbe family of Effurun, cannot relitigate the issue of ownership and possession of any inch of Otorkporo land in Effurun as a result of the judgment in Suit No.W/48/74 tied to survey plan No.LSU: 960 dated 23rd June, 1974 on which the defendants now also rely at the hearing of this suit.

The appellants as plaintiffs/applicants filed a motion dated 7/5/93 before the High Court, praying for an order of interlocutory injunction. The motion was supported by a 19 paragraphs affidavit sworn to by one Chief J. E. Ukusare, the first plaintiff/applicant, it was deposed as follows:

“1. That I am the first plaintiff/applicant in this suit and the present head of Ogbe family of Effurun.

2. That I swears to this affidavit with the consent and authority of the other plaintiffs/applicants,
3. That the plaintiffs/applicants herein sued the defendants/respondents in this suit claiming the following in it:-
4. A declaration that by virtue of the facts/proceedings of suit No.W/12/71 and the agreements dated 1/3/74, 16/3/74 and 15/4/74 thereon the plaintiffs are persons entitled to statutory right of occupancy over the piece or parcel of land lying and situate in Otorkporo and Okoribi in Effurun within the jurisdiction of this Honourable Court.
5. A declaration that by peace agreement entered into on 10th March, 1974 which ratified those of 15/4/73 and 1/3/74 between the two families (plaintiffs and defendants), and the judgments referred to in relief/above, the verdicts in both suits W/127/74 and W/48/74 delivered 10/11/87 and 22/12/75 respectively were obtained by fraud/misrepresentation, They are therefore null and void.
6. A declaration that by the aforementioned judgment in relief (1) above and the said peace agreement the verdicts in Suits W/127/74 and W/48/74 are caught by the doctrine of estoppel by conduct and representation as the issues involved in the said suits were in the said peace agreements.

Out of fraud/misrepresentation the defendants in the suit surreptitiously hid the facts of the existence of the peace agreements and/or judgment in relief (1) above.

4. A declaration that having regard to misrepresentation judgment of facts of descent Eleri-Avbobonyeta being claimed to have the status family in Uvwie (being strangers) the verdict W/48/74 and W/127/74 were given in error. The stranger lack ancestral right to back the claim, and they did not buy.
5. A declaration that having regard to gross misrepresentation and/or fraud committed by defendants coupled with the existence of judgments and proceedings W/12/71 (1) above as well as limitation set in peace agreement (2) above judgments in suit No.W/48/74 and W/127/74 were delivered in error and should be set aside.
6. An order of interlocutory injunction restraining the defendants, and their agents or privies from carrying out any act of trespass by way of leasing or doing anything to any portion of the land or quitting or doing anything to plaintiff’s tenants or their properties pending the determination of this suit.
7. An order of perpertual injunction restraining the defendants, their agents or privies from carrying out any act of trespass by way of leasing or doing anything to any portion of the said land or quitting or doing anything to any of plaintiff’s tenants or their properties on the said land.
8. That pleadings have been exchange in this suit and survey plans have been filed.
9. That since the inception of this my case and after exchange of pleadings, we recently discovered to our dismay that the defendants/respondents are still carrying out act of trespass on the said pieces or parcel of land.
10. That the defendants/respondents have started alienating/leasing some portions of the pieces or parcel of land involved in this suit.
11. That some of such alienation/leasing are as follows:-
12. Recent buildings being put up by an Isoko man and another by an Ibo man at Orokpagha are in Erovie quarters Effurun.
13. Several buildings springing up at Ukperugelete in Erovie quarters Effurun.
14. Several buildings springing up at Egborowere area in Erovie quarters, Effurun.
15. That we found as a fact that all the development enumerated above which have not reached completed stage were as a result of recent leases made to various persons sometimes last year.
16. That we confronted the various persons and in attempt to stop them from further development, the thugs of defendants/respondents came after us brandishing cutlasses and drove us away.
17. That as law abiding citizens we refused to trade sword for sword.
18. That we thereafter reported the matter to our solicitors Chief E. L. Akpofure who informed us and we verily believed him that an order of interlocutory injunction is necessary to stop the defendants/respondents from carrying out any further acts of trespass.
19. That in hearing this application we shall be relying on plan filed in this suit.
20. That our aforementioned solicitor informed us and we verily believed him that an order of this Honourable Court is required in restraining defendants/respondents from carrying out any further acts of trespass, leasing, alienation or doing anything whatsoever inconsistent with the rights of the applicants pending the final determination of the suit.
21. That unless the defendants/respondents are restrained they would have completely alienated or leased out the entire piece or parcel of land which is the subject matter of this suit, before this suit would be determined.
22. That it is necessary to preserve the subject matter of this suit pending its determination.
23. That we shall suffer irreparable damage and loss which cannot be quantified in monetary terms if this application is refused.
24. That the balance of convenience is in our favour.
25. That the defendants/respondents shall not be prejudiced if this application is granted.

Sequel to this, the respondents, filed a Notice of preliminary objection praying for the dismissal of the suit on the grounds-

“(a) The suit is incompetent as it is caught by the doctrine of res-judicata and/or issue estoppel by reason of Suit No.W/48/74 decided by Honourable Justice S. O. Uwaifo on 22/12/75 which went on appeal to the Supreme Court in Appeal No. Sc. 265/1976, paragraph 8 of the statement of defence filed on 18/10/91 refers.

(b) The plaintiffs/applicants conceded the entire Otorkporo which is made up of two large parcels and/or areas of land, namely, Okoribi and Udumurie and shown in survey plan No.LSU 960 to which the said judgment was tied to the defendants/respondents in the above suit, namely suit No. W/48/74 marked as Exhibit ‘A’ and the enrolment of the Supreme Court order in SC.265/1976 dismissing the appeal by plaintiffs/applicants herein on 29th March, 1978 as Exhibit ‘B’.

(c) There must be an end to litigation and plaintiffs/applicants must not be allowed to relitigate the issue of ownership and possession of Otorkporo land in Effurun again as they did in Suit No. W/127/74 also decided against them or a member of their family as per the judgment/ruling of M.O. U. Odita J. on 10/11/87. The said Ruling is attached hereto and marked as Exhibit ‘C’.

(d) The applicant are in the present suit claiming Okoribi and Otorkporo again. Paragraph 6 of their amended statement of claim filed on 24/ 2/92 refers. Otorkporo and Okoribi are clearly shown in plan LSU 960 dated 23/6/74 pleaded in paragraph 23 of the statement of defence and on which defendants/respondents will rely at the hearing of this motion.

(e) Plaintiffs/applicants are bound hands and feet by the above judgments/ruling and they have no escape route whatsoever. Hence, their totally misguided claim and/or suit ought to and indeed should be dismissed with substantial and/or punitive costs.

In response to the appellants’ motion, the respondents filed a counter-affidavit of 16 paragraphs along with their notice of preliminary objection, sworn to by one Adibu Aghoruntse, which reads as follows:-

“1. I am the 2nd defendant/respondent in this totally misguided application and I depose to the facts contained in this counter-affidavit from my own personal knowledge of the facts and issues in this suit/application with the consent, concurrence and/or authority of my co-respondents and entire members of Eleri/Avbobonyeta family of Effurun.

2. I have read and thoroughly grasped the contents of the false affidavit sworn to by Chief J. E. Ukusare who has refused to state clearly where he lives or resides in Effurun in purported support of his still-born application and I depose to the facts in this counter-affidavit in correction of the several false and misleading averment in the said affidavit.
3. paragraph one of the said affidavit is false as Chief J. E. Ukusare is not the head and had never been the head of Ogbe family as I know the members of Ogbe family with whom my own Eleri-Avbobonyeta family had several cases over the years Chief Awinoron and Chief Ofugbe Ajoboreya who is also a member of Ogbe family and who is the 5th defendant/respondent herein are by far senior and older than Chief J. E. Ukusare.
4. Paragraphs 2 and 3 in particular which contain several bogus claims are false and are denied. I and my co-respondents are not parties to or aware of the agreements dated 1/3/74, 10/3/74, 16/3/74 and 15/4/74 vaguely referred to and not exhibited by the applicants in their affidavit.
5. There is no peace agreement dated 10th March, 1974 which ratified others dated 15/4/74 and 1/3/74 between my family and applicant’s family which can suspercede the judgment of the Supreme Court of Nigeria and/or at all.
6. The judgments in Suit No. W/48/74 and W/127/74 were regularly obtained against the plaintiffs/applicants family represented by counsel and with their eyes wide open. No fraud and/or misrepresentation was practised or used by either sides to the said judgments. I attach hereto and mark as Exhibits ‘D’, ‘E’ and ‘F’ the statement of claim and statement of defence in Suit No.W/48/74 and a deed of lease dated 11th January, 1977 by which London Oboro the 4th plaintiff/applicant herein witnessed the lease by me and another member of Eleri/Avbobonyeta family of Effurun as LESSORS of a plot in Otorkporo land to one Madam Mary Jenrena of Usiefrun respectively long after the above judgments in 1974.
7. Paragraph 4 of the affidavit is true save and except that this application filed when this case had on 7/5/93 been fixed by this Honourable Court for hearing on 8/7/93 is merely intended to delay the trial as well as being an abuse of the process of this Honourable Court.
8. Paragraphs 5, 6, 7 and 8 of the supporting affidavit are false and not true at all. Applicants are not in possession of any inch of Otorkporo land in Effurun. From time immemorial and particularly since the judgments of the High Courts and the Supreme Court referred to in sundry paragraphs of this counter-affidavit the respondents Eleri Avbobonyeta family of Effurun have always been in total exclusive and undisturbed possession of every inch of Otorkporo land in Effurun. Anybody on the land without the consent of the respondents is a trespasser.
9. In further answer to paragraphs 5, 6, 7 and 8 of the said affidavit. Respondents have several tenants in Otorkporo land whose houses have been completed several decades ago and not just rushing up any building since the filing of this bogus suit. Exhibit “F” signed by the 4th plaintiff/applicant as a witness to one of our tenants since 1977 as averred in paragraph 6 of this counter-affidavit refers.
10. Paragraphs 9 and 10 of the supporting affidavit are patently false and paragraph 9 of this counter-affidavit is hereby repeated. Applicants have nothing in Otorkporo land which they can legitimately protect. Applicants are miscreants whose stock-in-trade is trouble making and illegal sales of other people’s land in Effurun including those over which judgment of the highest court in the land had been entered against them.
11. Applicants did not tell their counsel their true position about Otorkporo land over which there has been several judgments of courts of competent jurisdiction against them and they have themselves to blame for misleading their counsel. Hence paragraph 11 of the supporting affidavit is false and not true at all.
12. The plan filed by the applicants in support of their claim has many distorted features but it covers the same area of land in Survey Plan No.LSU Nos. 960 dated 23rd June 1974 to which judgments in Suit Nos.W/48/74 on appeal No.SC.265/1976 and W/127/74 were tied.
13. In answer to paragraphs 13 and 14 of the supporting affidavit, applicants have lost all round and up to the Supreme Court of Nigeria they have no right left in Otorkporo land Effurun the land in dispute in this case to protect. I am informed by our solicitor Chief J. J. A. Rerri of Uuwu-WE-WE Chambers, Warri and I verily believe him that no court of justice can grant or make an order of interlocutory injunction in favour of the applicants having regards to the over-whelming evidence against the applicants as contained in Exhibits “A”- “F” in this counter-affidavit.
14. Paragraphs 15, 16, 17 and 18 of the supporting affidavit are false.

Applicants who are neither in possession of the land in dispute nor own anything in it will not suffer any loss or damages talk less of irreparable loss. It is the respondents whose tenants have been and are all over the land for decades including commercial and industrial companies which stoppage cannot be compensated in monetary terms that will suffer more if on the most unlikely event this application is granted.

15. The applicants most of whom are living from hand to mouth cannot afford the magnitude of compensation that may result even if it could be quantified in monetary terms.
16. I make this counter-affidavit in good faith and to the best of my knowledge, information and belief in correction of the countless false and misleading averments in the supporting affidavit and in STIFF OPPOSITION to the totally unmeritted reliefs and/or prayers in the motion paper”.

The preliminary objection was argued on 4/10/93 and in reserved Ruling delivered on 30/3/94, the learned trial Judge, Bozimo, J. upheld the plea of res judicata and dismissed the appellants’ claims. Dissatisfied by the ruling the appellants have filed a Notice of appeal to this court, dated 8/4/94, containing 3 grounds of appeal from which the sole issue formulated for the determination of this court which reads thus:-

“Was the trial Judge right in Law when he held that this action is caught by the doctrine of res judicata and issue estoppel.”

The respondents raised two issues for determination in their brief of argument as follows:-

“1. Whether the learned trial Judge was justified in dismissing the appellants’ motion for an interlocutory injunction and then striking out plaintiffs/appellants’ claim for want of jurisdiction because of the defence of res judicata and issue estoppel, raised by the respondent?

2. Whether the plaintiffs/appellants had established a prima facie case of fraud and mis-representation in this case which the learned trial Judge failed to consider in favour of the appellants.”

When the appeal came up for hearing on the 21/2/2000, both counsel adopted their respective briefs and advanced oral argument in elaboration of their respective briefs.

Before proceeding to determine the appeal, I will first dispose of the preliminary objection raised in this appeal by the learned counsel for the respondents. I have carefully considered all the 7 grounds of objection and I do not agree with the learned counsel for the respondents that the sole issue formulated on the two grounds of appeal is incompetent as the two grounds of appeal are competent. In fact, the learned counsel for the respondents, who did not file a cross-appeal relied on the two grounds of appeal in formulating the two issues for determination in this appeal. The preliminary objection is therefore overruled and dismissed for lack of merit.

In support of the only issue for determination in this appeal, Chief E. L. Akpofure, learned Senior Advocate of Nigeria, for the appellants, submitted in the appellant’s brief that the present suit which forms the subject matter of this appeal is not caught by the doctrine of res judicata nor estoppel, He contended that for the doctrine of res judicata to operate, the parties, the subject matter, the cause of action, the relief being sought and the issues must be the same. In addition, the judgment must be final and decided by a court of competent jurisdiction. Learned Senior Advocate of Nigeria, further submitted that for a plea of res judicata, to succeed, all the stated conditions must be satisfied. He pointed out that the subject matter in Suit No. W/42/91, which resulted in this appeal, is clearly spelt out in paragraph 29 of the amended statement of claim at page 26 of the record and the conditions for a successful plea of res judicata have not been satisfied as the case under consideration is different from the two suits (W/48/74 and W/127/74) whose judgment are claimed by the respondents to act as res judicata. Learned Senior Advocate of Nigeria, referred to the claim in Suit No. (W/48/74, the judgment of the learned trial Judge, S. O. Uwaifo, J. (as he then was) at page 38 of the record as well as the ruling in the instant case at page 67 of the record and submitted that it is clear that the judgment in Suit W/48/74 is tied only to Otorkporo land but not inclusive of Okoribi. He pointed out that the appellants in the present suit that gave rise to this appeal, filed Plan No.AJ. BD 165LD wherein this Otorkporo land is clearly demarcated and shown while in Suit W/127/74, the plaintiffs therein claimed for a declaration of title to all that piece or parcel of land which was the subject matter of suit W/48/74 then pending in this Honourable Court lying and situate in Otorkporo in Effurun in Ovwie clan and the area shown in survey Plan filed by the plaintiffs in support of the action; annual rent of N24.00; N300.00 general damages for trespass against 7th and 8th defendants jointly and severally and perpetual injunction and submitted that is clear that the subject matter in Suit W/127/74, is a declaration of title to a piece or parcel of land lying and situate at Otorkporo as shown at page 45 of the record. Learned Senior Counsel, emphasized that there is a difference between obtaining judgment in respect of a piece or parcel of land lying and situate at Otorkporo and obtaining judgment over the entire land called Otorkporo. He explained that whilst the judgment obtained in the former is limited to a piece or parcel of land, the latter embrace the entire land and that judgment in Suit No.W/48/74 related to title to parcel of land lying and situate in Otorkporo.

Learned Senior Advocate further submitted that the judgment in Suit No.W/48/74, is not a judgment embracing the whole of Otorkporo land except the area specially spelt out in the survey plan LSU 960 and that judgment also in Suit No.W/127/74 is tied down only to a piece or parcel of land at Otorkporo but the judgment does not embrace the whole of Otorkporo land.

Concluding his submission, learned Senior Advocate of Nigeria, submitted that the reliefs in this suit that gave rise to this appeal are distinct and different from the declaration sought, in respect of Suits Nos. W/48/74 and W/127/74 and therefore, the learned trial Judge, erred in law when he held that this suit was caught by the doctrine of res judicata and urged us to allow the appeal.

In the respondents’ brief, Chief J.J.A. Rerri, for the respondents, submitted that the learned trial Judge was justified in dismissing the appellants’ motion for interlocutory injunction and then striking out their entire claim in this suit for want of jurisdiction on the grounds that that claim is caught by the doctrine of resjudicata and issue estoppel. He contended that the conditions for the doctrine of resjudicata to operate were fully present in the instant case in that the parties in Suits Nos.W/48/74 and W/127/74 and those in this suit are the same viz. Ogbe family of Effurun v. Eleri-Avbobonyeta family of Effurun. That the subject-matter, the cause of action and the reliefs are the same. He explained that it was for these reasons that the learned trial Judge held that there must be an end to litigation. As the appellant formulated only one issue for determination, I do not find it necessary or relevant to consider the respondent’s second issue. Consequently, I will proceed to determine the appeal on the appellant’s sole issue. In order to ascertain the claims in Suits Nos. W/48/74, W/127/74 and W/42/91, upon which both parties rely in their submissions in this appeal, it is pertinent to reproduce the claims for easy examination and comparison. The reliefs being sought for in suit No.W/42/91 had already been reproduced in this judgment. The claim of the plaintiffs in Suit No. W/48/74 is at page 37 of the record as follows:-

“1. Declaration of title to a piece of land;

2. N400.00 (Four hundred naira) general damages;
3. Perpetual injunction against defendants.”

The learned trial Judge, Uwaifo, J. at the same page 37 of the record, restated the claim and at page 38, stated as follows:-

“In the circumstances, I hereby declare title to and over the land shown on survey plan No. LSU 960 and therein verged Green in favour of the plaintiffs for themselves and on behalf of the Eleri Avboronyeta family of Effurun.

I also order perpetual injunction against the defendants representing themselves and the Ogbe family of Effurun in respect of the land in question. The claim for damages is however dismissed.”

The claim of the plaintiffs in Suit No.W/127/74 as stated at page 45 of the record is as follows:-

“1. A declaration to all that piece or parcel of land (which was the subject matter of Suit No.W/48/74 then pending in this Honourable court lying and situate in Otorkporo in Effurun in Ovwie clan within the jurisdiction of this Honourable court. The area and extent of the said land are shown on survey plan filed by the plaintiffs in support of this action. The annual rental is N20.00 (Twenty naira).

2. N300.00 general damages for trespass;
3. Against 7th and 8th defendants jointly or severally the sum of N15,000.00 general damages for trespass;
4. perpetual injunction.”

The learned trial Judge in her ruling at pages 67-68, said:

“I have looked at the Exhibits A-C attached to the preliminary objection and in no where was any reference made to Okoribi land. In Exhibit A, the judgment of S. O. Uwaifo J. as he then was, the court described the defendants claim who were then plaintiffs. The court said at page 1 lines 21-23 and page 2 lines 21-23 and page 2 line 1 thus:-

“The plaintiffs in their claim ask for a declaration of title to the parcel of land lying and situate in Otorkporo in Effurun in Uvwie clan as per survey plan No. LSU 960 wherein the land claimed is verged green”. This claim is also reflected in Exhibit C at page 7 lines 7-8.

Does failure to Exhibit the plan No. LSU 960 affect defendant?

To my mind, it does not, as the plaintiffs before me who were defendants in Suit No. W/48/74 cannot deny knowledge of that plan as Evidence from Exhibit A. There, Uwaifo J. said at page 2 lines 3-6.

The defendants in their statement of defence have admitted that the plaintiffs are the owners of the land in dispute. They accept the said plan No. LSU 960 to represent the true and correct extent. This no doubt defeats the argument of E. L Akpofure that the plan No. LSU 960 dated 23/6/74 ought to have been exhibited.”

In Udo v. Obot (1989) 1 NWLR (Pt.95) 59, 76-77, Karibi- Whyte, JSC fully explained the nature and extent of the aspect of the doctrine of estoppel per rem judicata which I find relevant and helpful in the determination of this appeal. At pages 76-77, Karibi-Whyte, JSC, had this to say:-

“There appears to be some misunderstanding on the real nature and scope of the doctrine of estoppel per rem judicata relied upon. I therefore briefly state the nature and scope of the aspect of the doctrine applicable. The doctrine of estoppel operates in three different circumstances. It applies to parties in litigation or their privies in respect of matters raised and finally distinctly decided. It may also apply in issues in litigation which merely form part of matters to be decided. It may also arise by conduct of the parties.

We are concerned in this case with the first circumstance referred to as estoppel per rem judicatam. Section 53 of the Evidence Act provides as follows:

“Every judgment is conclusive proof as against parties and privies, of facts directly in issue in the case, actually decided by the court, and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved’.

In Ikpang & Ors v. Chief San Edoho & Anor. (1978) 6 & 7 SC 221 Aniagolu, J.S.C. said:

“It is fundamental law that to sustain a plea of res judicata in a case the party raising the plea must show that the parties, the issues and the subject matter of the current case are the same as in the previous case adjudicated by a court of competent jurisdiction before whom the proceedings terminated to finality. Put in another way, a final judgment already decided between the same parties or their privies on the same question by a legally constituted court having jurisdiction is conclusive between the parties and the issue cannot be raised again.”

In New Brunswick Rail Co. v. British and French Trust Corporation Ltd. (1939) AC 1, Lord Maugham at Pp. 19-20 expressed the position accurately when he said:

“the doctrine of estoppel (per rem, judicatam) is one founded on considerations of justice and good sense. If an issue has been distinctly raised and decided in an action, in which both parties are represented, it is unjust and unreasonable to permit the same issue to be litigated afresh between the same parties or persons claiming under them”.

It is therefore important for the issues in the earlier case to be identical with those in the current case in which the estoppel is raised, and the issue so relied upon to have been raised and distinctly decided in the earlier case. Finally, the parties or their privies must be the same. It should not be a decision by implication.”

It is very surprising to me that although the respondents in their preliminary objection numbered (d) at page 33 of the record, clearly stated that the respondents will rely on the Plan No. LSD 960 dated 23/6/74 at the hearing of the motion which gave rise to this appeal, yet the respondents failed, neglected or refused to exhibit the said plan to their counter-affidavit. Again, in paragraph 12 of their counte-affidavit the respondents, appreciated the importance of the plan which the respondents relied upon in a reply to the appellants’ claim on the issue of the area of land in question but for unknown reasons the respondents did not exhibit the said plan.

In Aweni v. Olorunkosebi (1991) 7 NWLR (Pt.203) 336 at 354 dealing with the plea of estoppel per rem judicata, Sulu-Gambari, JCA, adopted with approval the judgment of the learned trial Judge which dealt with the issue of plan when the learned trial Judge at page 354 said:

“I should dispose quickly with the claim of estoppel per remjudicata. No plan has been submitted by the plaintiffs to show the area of land at issue in the two cases one before the Native Court, and the other in the Customary Court. There is no evidence before me that the areas litigated upon covered or was inclusive of the area of land in dispute in the case in hand. On the contrary, the evidence before me is that a building plot each was involved in each of those two cases and in areas far away from the present land in dispute.

Although an Aseyin was the original grantor of the two pieces of land previously litigated upon in the lower courts, the parties, the issues and the areas of land covered by each litigation are not the same, nor inclusive of, the land in the case in hand. The plea of estoppel per rem judicata is therefore not sustainable in aid of the plaintiffs. See Basil v. Honger 4 WACA 569; Alfred Asagba & ors v. Omowha Ogafe (1972) 11 SC 139; Iheanacho Nwaneri & Ors v. Nnadiwe Orinwa (1959) 4 FSC page 132, (1959) SCNLR 316.”

The case of Ekpoke v. Usilo (1978) 6-7 SC 187, a case of representative action like the case under consideration relied upon by the learned counsel for the respondent for failing to exhibit the plan is distinguishable from the present case.

In Ekpoke (supra) there were no pleadings as it was a case before a Native Court. Even in that case, to determine a question of res judicata, the court had to have recourse to the facts directly in issue in the action and determined in that judgment to discover from the substance as disclosed in the record of proceedings. In the case in question, it is not being suggested that Okoribi land and Otorkporo land are one and the same thing as in Ekpoke (supra) relied upon by the respondents.

It should be noted that even in a case decided by a Native Court, it is necessary to ascertain from the record, the substance, whether a plea of resjudicata raised can be sustained.

From the ruling of the learned trial Judge, at pages 67-68, I think I do not need to rely on any authority, in holding that the Okoribi land was not litigated upon and certainly title in respect of the Okoribi land was not granted to the respondents in the suit relied upon in respect of the plea of res judicata.

Applying the principles enunciated in both the cases of the Supreme Court of Nigeria and this court, I hold the view that having regards to the reliefs in Suit No.W/42/91, the respondents have not fulfilled the conditions to sustain a plea of res judicata. Although the parties, being a representative action are the same, the reliefs, the subject matter and the claim are not the same as can be clarly seen from the claims herein reproduced. Since the respondents did not claim the entire Otorpkoro land as clearly shown from their claims hence their reliance on a plan, showing the area claimed, verged green and were not granted title to the entire Otorpkoro land by the court, it is therefore incumbent on the respondents to show clearly the extent or identity of the land claimed and granted to them by the court to enable the respondents successfully raise a plea of res judicata.

On what did the learned trial Judge, rely in reaching his decision that the land covered by plan No.LSU 960 which was not exhibited to the motion, is identical with the Okoribi and Otorkporo land referred to in this case? It is the duty of the respondents to satisfy the court on their plea of res judicata, in order to sustain the plea.

I therefore with respect to the learned trial Judge, disagree with his conclusion that the appellants accepted plan LSU 960 to represent the true and correct area in dispute. As it is thefunction of the learned trial Judge, to determine the issue in this case, it is the court that should reach a decision on whether the land is identical or not. The learned trial Judge ought to satisfy himself that the area of the land, extent and features, litigated upon are identical with the land referred to in Suit No. W/42/91, from relevant materials not by implication.

From the claims as set out in this judgment, it seems to me that the reliefs in this suit that gave rise to this appeal, that is the declarations being sought therein are different from the declarations sought in respect of Suit Nos.W/48/74 and W/127/74 as the issues in the two suits is declaration of title to land.

In my view, the claims and the subject matter of this case and the two suits are not identical. At this stage, the trial court should not be concerned with the merits or outcome of the case under consideration which is different from the two earlier decisions.

In the light of the foregoing, the plea of res judicata is not sustainable. I therefore allow the appeal, set aside the ruling of Boximo J. delivered on 30/3/94 and in its place remit Suit No. W/42/91 to the court below for hearing and determination by another Judge. I award costs assessed at N3,000.00 to the appellants against the respondents.

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Other Citations: (2000)LCN/0797(CA)