Jakive Ogbeni & Ors V. Kamaro Chachoro & Anor (2002)

LawGlobal-Hub Lead Judgment Report

BABA ALKALI BA’ABA, J.C.A.

This is an interlocutory appeal, against the ruling of the Delta State High Court, holden at Otu-Jeremi, in suit No. HCG/9/95, delivered on 20/11/97.

The respondents were the plaintiffs before the trial court where they instituted an action against the appellants who were the defendants, as per the endorsed writ of summons, claiming, jointly and severally as follows:-

“1. A declaration that the plaintiffs as owners in possession are the persons entitled to the statutory right of occupancy over all that piece or parcel of land called and referred to as Orieruorho farm land bounded by Udjugbo stream, Urhode stream and a confluence of both Udjugbo and Urhobo stream at the Orliuwhorun end of the land and on the fourth side by a fence and animal trap of one late Gege.

2. The sum of N10, 000,000.00 (Ten Million Naira) only being special and general damages suffered by the plaintiffs when sometime in 1993 the Defendants by themselves, their servants and/or agents broke and entered into the plaintiffs’ parcel of land felled timbers and carted the timbers away.
3. An Order of perpetual injunction restraining the Defendants by themselves, their servants and/or agents from further trespassing on the plaintiffs’ parcel of land or in any other way interfering with the plaintiff’s possession and ownership rights over the parcel of land aforesaid.”

Pleadings were ordered, filed and exchanged. The statement of claim was subsequently amended. By a motion on notice dated the 13th of December, 1995, filed the same day, brought pursuant to Order 24 Rules 2 and 3; Order 25 rule 20 of the High Court (Civil procedure) Rules 1988 and the inherent jurisdiction of the Honourable Court, the appellants as defendants prayed for the following orders:-

“Setting down for trial and determination the points of law raised in paragraphs 7, 8, 10, 12, 13 and 14 of the Defendants/Applicants’ Statement of Defence and thereafter dismissing, striking out the Plaintiffs/Respondents’ claim/action or suit on the following grounds:-

a. That the Plaintiffs/Respondents’ Claims/action/ suit is caught by the doctrine of Estoppel per rem judicatam.

b. That the claim/action/suit is a gross abuse of court process as the Plaintiffs/Respondents have failed to prosecute their Appeal in respect of the subject matter at the Central Urhobo Grade ‘B’ Customary Court of Appeal Ughelli or any Court at all since the 16th day of July, 1963.

c. That the Plaintiffs/Respondents’ claim/action or suit is incompetent.

d. That the Plaintiffs/Respondents have no locus standi to institute this action.

e. That the Plaintiffs/Respondents’ claim/action disclose no reasonable cause of action.

f. That this action as is presently -constituted is incompetent as Plaintiffs/Respondents did not seek and obtain the leave and/or approval of this Honourable Court and the authorization of the persons they purport to represent before instituting same.

AND for such further order or other orders as this Honourable court may deem fit to make in the circumstance.”

The motion was supported by a seventeen paragraphs affidavit deposed to by one Leader Eju, Legal Practitioner of No.6 Enerhen-Effurun, a counsel in the Law Firm of J.E. Shakarho & Company, Solicitors to the appellant/defendant.

I consider the following paragraphs of the supporting affidavit relevant in the determination of this appeal hence they are hereby reproduced below:-

“6. That sometime in 1957 Kamaro Chachoro filed an action in respect of the subject matter of this at the Jeremi Grade ‘C’ Customary Court, Otu-Jeremi against Okumo and Ayoro for themselves and on behalf of Ekreze family. A copy of the proceedings is attached hereto and marked as Exhibit ‘A’.

7. That Chachoro the 1st Plaintiff/Respondent herein lost the case to the Ekreze family and appealed to the Central Urhobo Grade ‘B’ Customary Court, Ughelli and also lost. A copy of the proceedings is attached hereto and marked as Exhibit ‘B’.
8. That Kamaro Chachoro family lost further appealed to the High Court, Warri where Ekeruche J. ruled that the Appeal be reheard by the Grade ‘B’ Court. A copy of the proceedings is attached hereto and marked as Exhibit ‘C’.
9. That the Order was given by Justice Ekeruche on the 16th day of July, 1963 and since then the Appeal has not been heard.
10. That the cause of action (land) in Exhibits A, B and C are the same as in this suit.
11. That the parties in Exhibits A, Band C are the 1st plaintiff/respondent and the Ekreze family.
12. That the Defendants were parties to the action as shown in the Exhibits A, B and C.
13. That the Plaintiffs/Respondents are estoppel per rem judicatam.
14. That I know as a Counsel that:-

(a) The Plaintiffs/Respondents’ claim/action/ suit is caught by the doctrine of estoppel per rem Judicatam.

(b) The claim/action suit is a gross abuse of court process as the Plaintiffs/Respondents have failed to prosecute their Appeal in respect of the subject matter at the Central Urhobo Grade ‘B’ Customary Court of Appeal Ughelli or any Court at all since the 16th day of July, 1963.

(c) The Plaintiffs /Respondents’ claim/action or suit is incompetent.

(d) The Plaintiffs/ Respondents’ have no locus standi to institute this action.

(e) The Plaintiffs/Respondents’ claim/action disclose no reasonable cause of action.

(f) This action as is presently constituted is incompetent as Plaintiffs/Respondents did not seek and obtain the leave and/or approval of this Honourable Court and the authorization of the persons they purport to represent before instituting same.”

In response, Mr. Kamoro Chachoro, the first respondent/plaintiff, of Aruo quarters Usiefrun in Ughievwen Clan Ughelli South Local Government Area of Delta State, deposed to a ten paragraphs counter-affidavit. Paragraphs 2, 3, 4, 5, 6, 9 and 10 of the counter-affidavit read as follows:-

“2. That the motion on notice and the affidavit -in support of the motion with all the Exhibits attached thereto have been read and explained to us and we verily understand the contents thereof.

3. That paragraphs 1, 2, 3, 4 and 5 of the supporting affidavit are vehemently denied and are untrue.
4. That paragraphs 6, 7 and 9 are admitted. That paragraph 9 of the affidavit is admitted to the extent it is averred that Justice Ekeruche ordered a retrial by the Ughelli Grade B Customary Court, that after the order of Ekeruche was made hearing notice was sent to me in 1964 under the then Mid-Western State of Nigeria for the hearing of the case. That I went to the Court only to have an order ruling the entire trial. I have applied for a certified true copy for the order nullifying the trial but the Magistrate Court Ughelli where the records were kept have not been able to provide me with the order ruling the entire trial. I attach a certified true copy of my application to the Registrar of the Magistrate Court Ughelli and marked it as Exhibit ‘A’.
5. That soon after the nullification the defendant/applicant seized to enter into the Okpekpe family portion of Aruoro land in Usiefrun town in Ugbievwen Clan.
6. That it is only recently that the defendant/applicant broke and entered into the Okpekpe family portion of Aruoro bush in Usiefrun town in Ughievwen Clan hence this action.
7. That our present action is founded on the recent trespass by the defendants/applicants on our Okpekpe family land and so we have the locus standi to institute this action.
8. That from our statement of claim our action disposes a cause of action and time does not run against us to file and obtain the leave of the Honourable Court to prosecute this action in a representative capacity having regards to the fact that I as the head of the Okpekpe family is the custodian and Trustee of all Okpekpe family lands or properties and can institute an action for myself and on behalf of the Okpekpe family.”

The motion was argued by counsel for the parties and the learned trial Judge, Erhaiwe, J., in his reserved ruling delivered on 20/11/96 and inter alia held,

“I have carefully looked through the decisions of the various courts in the light of this authority; I am unable to hold a particular decision as final. The decision of both Grade C and Grade B Customary Courts were unsatisfactory. Appeal was duly filed against the decisions respectively. The matter was sent back to the Grade B Customary Court for retrial. No decision of this retrial was produced by the applicant in this matter. Instead the applicants want this court to fall back on the decision of the first court i.e. Jeremi Grade C Customary Court. I am afraid this court cannot acceed to this application. The onus is on the applicant to produce what the Grade B Customary Court decided after all. They have not done so.

If the application now before the court is granted anything or matter that were left underdetermined would be foreclosed and justice would be made to suffer.

For the above-mentioned reasons I dismiss this application with N300. 00 Costs against the applicants.”

Dissatisfied with the ruling, the appellants/defendants appealed to this Court by their notice of appeal dated 2/12/96, containing two grounds of appeal at pages 157-159 of the record. The grounds of appeal are as follows:-

“1. The learned trial Judge erred in law when he held that the doctrine of Estoppel per rem judicatam did not avail the applicants.

2. The learned trial Judge erred in law when he failed to hold that the present suit at the High Court amounted to an abuse of process of Court.”

In accordance with the rules of practice and procedure of this Court briefs were filed and exchanged by the parties.

In the appellants’ brief dated on 11/3/98, and deemed filed and served on 21/10/98 by the order of this Court, the appellants formulated the following three issues for determination in this appeal. They are:-

“(i) were the factors upon which Estopel per Rem Judicatam can be applied available in this suit.

(ii) Was the trial Judge right when he held that the appellants had the onus of showing or exhibiting what was the final decision of the Grade B Court, Ughelli after the High Court, Warri in suit Civil Appeal No.W/38A/1962 had ordered a retrial.

(iii) Was the trial Judge right when he held that there was no final decision in various court particularly also at the Grade C Court Otu-Jeremi.

The Respondent/Plaintiffs, on the other hand, in the Respondents’ brief dated 23/11/98, filed on 26/11/98, at page 5 of the brief also formulated the following three issues:-

“1. In the light of the order of retrial made by the High Court in Suit No.W/38A/1962, can the judgment in Suit No. J267/57 relied on by the appellants be held to be valid, subsisting and binding on the parties to sustain the plea of estoppel per rem judicatam.

2. Are ALL the requirements of estoppel per rem judicatam established from the records before the court in this proceeding?
3. .Was the trial Judge not right when the Court held thus:

“I have carefully looked through the decisions of the various Courts in the light of this authority.

I am unable to hold a particular decision as final.

The decision of the Grade “C” and Grade “B” Customary Courts were unsatisfactory. Appeal was duly filed against the decisions respectively.

The matter was sent back to the Grade “B” Customary Court for retrial. No decision of the retrial was produced by the applicant in this matter, instead the applicants want this Court to fall back on the decision of the first court; i.e. Jeremi Grade “C” Customary Court. I am afraid this Court cannot accede to this application. The onus is on the applicant to produce what the Grade “B” Customary Court decided after all.”

The appeal came up for hearing on 23/10/2001. Both counsels adopted and relied on their respective briefs.

Arguing the appeal, in the appellants’ brief, J. E. Shakarho, Esq., learned counsel for the appellants, submitted that the principles upon which the doctrine of Estoppel per Rem Judicatam can be applied are as follows:

(a) The question or issue for decision in the suit must have been decided in the earlier proceedings by a court of competent jurisdiction.

(b) The decision relied upon to support the plea must be final.

(c) The parties must be the same. That is the parties involved in both proceedings must be the same per set or by their privies, citing Fadiora v. Gbadebo (1978) 3 S. C. 219; Azuetonma Ike & others v. Iwabueke; Ugboaja & Ors (1993) 6 NWLR (pt. 301) 539 at 541; Ugbogu v. Ndiribi (1992) 6 NWLR (Pt.245) 40 at 43; Udo & Ors v. Obot & Ors (1989) 1 NWLR (Pt.95) 59 at 61 and Agbasi & Ors v. Obi & Ors (1998) 55 LRCN 2896, 2899 – 2901.

He stated that in this case, the parties are the same in that the parties in the previous suits and this appeal are the same i.e. the Okpekpe family of Usiefrun represented by KAMARO CHACHORO and KONI TOYO versus EKAEZE family of Usiefrun represented at various times by OKOMA and AYORO and later JAKIVE OGBENI KWAMRENA, and BOGUN DAFALE.

Learned counsel for appellants further submitted that the parties at the Grade “C” Customary Court Otu-Jeremi in suit No J/267/5 are Chachoro v. Okuma and in the Central Urhobo Grade “B” Customary Court Ughelli in appeal No.9A/62 Chachoro v. Okuma later Kerien, Kwamena, Dufale and Omini substituted by order of court. That the parties in the High Court of Justice in Appeal No. W/38A/1962 are Chachoro v. Okuma. He added that in the High Court of Justice, Otu-Jeremi in suit No. HOG/9/95, the parties are Kamaro Chachoro and Anor v. Jakive Ogbeni & 2 Ors are all the same. Learned counsel for the appellants pointed out that Kamaro Chachoro the first respondent herein had always been in the case right from Grade “C” Customary Court to the High Court of Justice, Otu-Jeremi. He expatiated that the question or issue for determination before the Grade “C” Customary Court, Otu-Jeremi was an order for determination of title to Oriaruoho land, damages and injunction, while in the High Court of Justice, Otu-Jeremi, it was for a declaration of title to Oriaruoho land, damages and injunction. Learned counsel argued that these facts were admitted by the Respondents at the High Court, Otu-Jeremi, in their paragraphs 4, 6, 7 and 9 of their counter-affidavit. It is the submission of the learned counsel for the appellants that the subject-matter, question or issue for determination at the two courts being the same, the appellants have satisfied one of the condition required for the grant of their application. He further stated that the decision relied upon to support the plea must be final and submitted that the decision relied upon in the High Court, Otu-Jeremi from where the appeal lies is the subsisting judgment of the Grade “C” Customary Court which has not been set aside by any court of competent jurisdiction.

Relying on the authority of Ojioko & Ors v. Ogueze (1962) 1 All N.L.R. 58 and Magnuson v. Koiki (1991) 4 NWLR (Pt.183)119 at 129, learned counsel for the appellants further argued that a judgment is valid and subsisting until it is set aside. He said that the respondents agreed that the decision of the Grade “C” Customary Court has not been set aside but their complaint was that they could not conclude their appeal at the Grade B Customary Court.

That the inability of the respondents to conclude their appeal has no effect on the validity of the judgment of the Grade C Customary Court. It is contended by the appellants that the onus of establishing that the judgment of the Grade C Customary Court delivered on 10/4/62 has been nullified or set aside is on the respondents who have failed to produce any credible evidence to support their assertion consequently the said judgment is still valid and subsisting and is a final decision. Learned counsel for the appellants emphasised that the cause of action in the Grade ‘C’ Customary Court, Otu-Jeremi and the High Court of justice, Otu-Jeremi are the same and that the Grade C Customary Court having pronounced its judgment in the same cause of action, it is not open to the respondents to relitigate over the same case as the High Court was not sitting in its appellate jurisdiction over the decision of the Grade C Customary Court, Otu-Jeremi. It is further submitted that the appellants having successfully satisfied the conditions that must exist before the plea of estoppel per rem judicatam by relying on the judgment of the Grade C Customary Court, Otu-Jeremi, which deprived the High Court of jurisdiction to further hear and determine the issue. That the learned trial Judge ought to have granted the appellants/defendants’ application. In conclusion, learned counsel for the appellants, urged the court to allow the appeal.

Responding, in the Respondents’ brief, learned counsel for the respondents, P. E. Asheshe Esq., after given a detailed background of the facts leading to this appeal, at page 5 of the respondents’ brief agreed as argued by the appellants that the principles upon which the doctrine of estoppel per rem judicatam can be involved and upheld are basically three, namely:-

(a) That the Parties in the present suit and the suit relied upon to raise the plea are the same.

(b) The subject-matter and the issues for determination in the present suit and that of the judgment relied on in the previous suit are the same, and

(c) The judgment relied upon in raising the plea must be final in that the rights of the parties must have been finally determined.

Reference was particularly made to the Supreme Court case of Ayiwe Odjevwedje & Anor v. Madam Obenabena Echanokpe (1987) 3 S.C. 47 at 67 and 70 where the Supreme Court defined issue estoppel and all the preconditions to a valid plea of estoppel inter parties or per rem judicatam must exist and cited a number of cases in support of the application of the principle for a plea of estoppel per rem judicatam. At page 3 of the respondents’ brief, learned counsel for the respondents conceded that the parties at the Grade “C” Customary Court, Otu-Jeremi, in suit No. J267/57 is the same as the present suit No.HCG/9/98. Reference was made to the order of Ekeruche, J., reproduced at page 4 of the respondents brief and submitted that it is clear beyond any iota of doubt that the Warri High Court in its appellate jurisdiction remitted the case back to the Grade “B” Customary Court, Ughelli for rehearing. That the records do not show any hearing by the Grade “B” Customary Court.

It is further submitted by the learned counsel for the respondents that the judgment in suit No.J. 267/57, having been appealed against and successfully challenged in suit No. W/38A/1962 can not sustain the plea of estoppel and that there is no reason to fall back on the judgment in suit J.267/57 instead of the judgment in W/38A/1962. According to the learned counsel for the respondent, the trial was abortive as a result the rights of the parties in respect of the subject-matter and the issues raised has not been determined. That in the light of the order of retrial made by the High Court in W/38A/1962, the judgment in suit No.J267/57 relied upon by the appellants can not be taken as final, valid, subsisting and binding on the parties to sustain a plea of estoppel per rem judicatam. He therefore urged the court to resolve No. 1 and 2 against the appellant. From his only two grounds of appeal, learned counsel for the appellants formulated three issues for determination in this appeal. It is now firmly established principle of law that it is wrong for a counsel to formulate issues for determination in excess of the grounds of appeal filed. Indeed, it is now a very well established principle of law that except in special cases where the ground of appeal so dictates, it is undesirable to formulate an issue in respect of each ground of appeal. See Attorney-General of Bendel State v. Aideyan (1989) 4 NWLR (Pt.118) 646; Buraimoh v. Bamgbose (1989) 3 NWLR (Pt.108) 352 and Utih v. Onoyivwe (1991) 1 NWLR (Pt.166) 166-214. Hence, whereas in the instance case, learned counsel for both the appellants and respondents formulated three issues for determination, from two grounds of appeal filed such proliferation of issues can not be justified.

In fact it is now well settled that much issues must be of necessity be limited by; circumscribed and fall within the scope of the grounds. See: Nwosu v. Imo State the Environmental Sanitation Authority (1992) 2 NWLR (Pt.135) 688 at 714 and Adelaja v. Fanoiki & Anor (1990) 2 NWLR (Pt.130) 137 at 148. For the reasons stated, I will determine this appeal on issue No.1, only formulated by the appellants as the other issue does not relate to any of the ground of appeal as a result the issue is irrelevant and incompetent.

In the determination of the only remaining issue, it is necessary to properly examine the affidavit in support of the motion, counter-affidavit as well as the annextures attached to the affidavit and the counter-affidavit.

I have carefully perused the affidavit, counter-affidavit, the annextures as well as the pleadings. The parties before the Grade C Customary case No. J/267/57 are:-

“1. Kamaro Chachoro (M) for and on behalf of Okpekpe family of Usiefrun…. Plaintiff

Vs.

1.Okuma (m) for and on behalf of Ekreze family

2. Ayoro…………………Defendants

Claim:1.

Declaration of ownership over a parcel of land known and called Oria – Aruorho situating at Usiefrun – Orhworun Road in Jeremi Clan – Ughelli Division.

11. An injunction to restrain the Defendants, his agent and members of their family from trespassing into the parcel of land described in claim (1).”

The parties before the High Court holden at Otu-Jeremi, in suit No. HCG/9/95 are:-

“1. KAMARO CHACHORO ……………… Plaintiff(s)

2. KONI TOYO

(For themselves and on behalf of Okpekpe family Usiefrun)

And

1. JAKIVE OGBENI
2. ORHUKOMUAYEKWAMRENA… Defendant(s)
3. BOGUN DAFALE

(For themselves and on behalf of Ekreze family of Usiefrun)

Claim:

1. A declaration that the plaintiffs as owners in possession are the persons entitled to the statutory right of occupancy over all that piece or parcel of land called and referred to as Orieruorho farm land bounded by Udjugbo stream, Urhode stream and a confluence of both Udjugbo and Urhobo stream at the Orhuwhorun end of the land and on the fourth side by a fence and animal trap of one late Gege.
2. The sum of N10, 000,000.00 (Ten Million Naira) only being special and general damages suffered by the plaintiffs when sometime in 1993 the Defendants by themselves, their servants and/or agents broke and entered into the plaintiffs’ parcel of land felled timbers and carted the timbers away.
3. An Order of perpetual injunction restraining the Defendants by themselves, their servants and/or agents from further trespassing on the plaintiffs’ parcel of land or in any other way interfering with the plaintiffs’ possession and ownership rights over the parcel of land aforesaid.”

The respondents, both in their counter-affidavit particularly paragraphs 4, 5 and 6 as well as their brief admitted that the parties, the subject-matter and the issue in the judgment of the Grade C Customary Court and the one before the High Court in suit HCG/S/95 are the same. The main contentions of the respondents are that the judgment of the Grade C Customary Court in suit No J1267/57 is not a final judgment in that the High Court in Appeal No. W/38A/1962 had nullified the judgments of the Customary Court.

The answer to this issue can be found at page 134 of the record, containing Exhibit “C”, the judgment of the High Court in the appeal delivered on the 16th day of July, 1963. It reads:-

“JUDGMENT”

This is an appeal against the decision of the Central Urhobo Grade ‘B’ Customary Court in an appeal to that Court against the decision of the Jeremi Grade ‘C’ Customary Court in Suit No. J/267/57 in which present appellant named above sued respondents claiming a declaration of title to a parcel of land and injunction restraining the respondents, their agents and members of their family from trespassing onto the said land.

At the purported hearing by the Grade ‘B’ Court, the said Court did not comply with the requirements of Order XVIII, Rule II of the Western Region of Nigeria Customary Courts Kulen which enacts that when both parties appear when an appeal is called on for hearing, each party shall be given an opportunity of hearing by the Appeal Court: Provided that the appellant or his representative (if any) shall be entitled to be heard further. That being so, I declare the purported hearing by the said Grade ‘B’ Court null and void and remit the appeal to the said Court for hearing in accordance with the requirements of Order XVIII, Rule II, mentioned above. I set aside any order as to costs made by the Grade ‘B’ Court.

Such costs are to be refunded if already paid. Respondent will pay appellant five guineas costs.”

In my view it is clear that the High Court in Appeal No. W/38A/1962 only nullified the judgment of the Grade ‘B’ Customary Court as contained in the judgment. That being the case, I hold the view that the judgment of the Grade “C” Customary Court in Suit No.J1267/57 is valid and subsisting. I am fortified in my view by the decision of the Federal Supreme Court in the case of Ojiako and Ors v. Ogueze and Ors (1962) 1 All N. L. R. 58 at 61, where Brett, F. J., delivering the judgment of the Court inter alia said,

“Where no question of nullity arises, once the judgment of any competent court is perfected it is valid until set aside by competent authority, and there can be no presumption against the validity of such a judgment. The judgment of the native court must be regarded as a subsisting case.”

It should be noted that the judgment of the Grade “C” Customary Court was on merits, delivered after hearing the parties and their witnesses. What are the conditions for sustaining a plea of res judicata in a case?

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

“It is fundamental law that to sustain a plea of res judicatam 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) A.C.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 decided in an action, in which the 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. ”

In a more recent decision of the Supreme Court of Nigeria, in the case of Omokhafe v. Esekhomo (1993) 8 NWLR (Pt.309 58 at 68 per Karibi-Whyte, JSC delivering the judgment of court, the court said,

“In Nwameri & Ors v. Oriuwu 1959 SCNLR 16, Abbot, F. J. giving the conditions necessary for the operation of the doctrine of estoppel record, put it succinctly thus- “It is well known that before this doctrine of estoppel per rem judicatam can operate, it must be shown that the parties, issues and subject-matter were the same in the previous case as those in the action in which the plea of res judicata is raised.”

Thus the three essential prerequisites which constitute the pillars for the application of the principle are, first, that the parties must be the same in the two cases or their privies. See Odua & Ors v. Nwenze (1930) WACA; Shonekan v. Smith (1964) All N.L.R. 68. Secondly, the issue and subject-matter must be the same. Thirdly, there must be a valid subsisting judgment. See Eko v. Ugwuoma & Ors (1940) WACA 206; Ogiamen v. Ogiamen (1967) 1 All NLR 191. It is immaterial that the judgment was obtained be default. See Odu v. John Holt (1950) NLR 127.

Applying the conditions for a successful plea of estoppel per rem judicatam, as set out in the cases cited, I hold that the appellants as applicants before the lower court fully satisfied all the conditions for their application to be sustained and the learned trial Judge ought to have granted the application.

In the result, the ruling of the learned trial Judge, Uwerhiavwen, J., in suit BCG/9/95, delivered on 20/11/96 is hereby set aside and substituted with an order granting the application. Consequently, suit No. BCG/9/95 is hereby struck out with costs assessed at N3, 000.00 in favour of the appellants against the respondents.

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Other Citations: (2002)LCN/1067(CA)