Chief Winoko Ekpe Substituted For Head Chief Esemana On Behalf Of Himself & Anor V. Head Chief Esin Antai Substituted For Head Chief Bassey Okon On Behalf Of Himself & Anor (1944)

LawGlobal Hub Judgment Report – West African Court of Appeal

Estoppel—res judicata—prior judgment in part ultra vires—Defendant relying on that part of the judgment which was not ultra vires. Prior judgment a default judgment.

Facts

Plaintiff-Respondent sued Defendant-Appellant for damages for trespass to land and an injunction. At the trial Defendant-Appellant pleaded res judicata, relying upon a judgment by default in respect of the same land for damages for trespass, an injunction, and demarcation of boundaries, given in his favour in 1931 against Plaintiff-Respondent, who had not appeared at the hearing. It was admitted that the land in dispute in both cases was the same.

The trial Judge held that the plea of res judicata could not succeed, on the ground, inter alia, that the court which gave the 1931 judgment had no jurisdiction in real actions, and the claim for demarcation of the boundary was a claim in the nature of a real action.

Held

there was no force in this ground, because any lack of jurisdiction in the court which gave the 1931 judgment was in respect of the order for demarcation of boundaries only ; the judgment, in so far as it dealt with trespass, had been within the jurisdiction of the court, and Defendant-Appellant’s plea of res judicata was based on that part of the judgment which dealt with trespass, and on that part only, since there was no dispute as to the identity of the land.
In the Appeal Court it was contended on behalf of Plaintiff-Respondent that the 1931 judgment, being a judgment by default, could not be pleaded as a bar to the action.

Held : the 1931 judgment was a bar to the action.