Samuel Fadiora & Anor V. Festus Gbadebo & Anor (1978)

LawGlobal-Hub Lead Judgment Report

C.IDIGBE, JSC

The principal question raised in this appeal and which calls for the decision of this court is what exactly is the meaning and effect of an order (by an appellate court) for a trial de novo on subsequent proceedings pursuant to that order? In the High Court of the former Western (now Oyo) State holden at Oshogbo the respondents as plaintiffs claimed from the defendant (the appellant herein and another) the following reliefs:-     

“(1) ……………………………. jointly and severally ……………. a declaration of title to a piece of farmland situated at Wanikin Village at Aye in Ife Division; (2) ………………………… £150 being damages for the crops (on), and use of the said farmland ………………; (3) ……………………….. an injunction restricting the Defendants and their agents from using …………… the said land ………………………”   Pleadings were filed by the parties following an order of the High Court; and in paragraphs 8, 12, 13 and 14 of their Statement of Defence the defendants pleaded thus:- “(8) The first Defendant avers that the farmland in dispute was granted to his late father Joshua Fadiora by the late Oni Ajagun Ademiluyi about 40 years ago.

(12) The first Defendant avers that only in 1954 the first Plaintiff in this present case instituted an action Suit No. 45/54 in the Ife Land Court against Joshua Fadiora the father of the first Defendant and lost. (13) The counsel (sic) of the Defendants intends to raise a plea of res judicata during the proceedings (sic) of this case in view of TWO previous judgments of courts of competent jurisdiction. (14) The Defendants aver that there are about 100 tenants on the land in dispute who pay customary Ishakole to the father of the first Defendant annually until his death in 1961 and thereafter to the first Defendant.”   On the 11th day of May, 1966, when the case came up before Fakayode, J., (as he then was), sitting in the High Court of Oshogbo, upon an interlocutory application specially for consideration of the plea of res judicata set up by the defendants (appellants herein) in paragraphs 12 and 13 of the Statement of Defence, the following notes appears:   “………………………………………………………………….. Olukole (for Defendants) raises the plea of res judicata in paragraphs 12 and 13 of the Statement of Defence. In 1954 there was a land case between the first Plaintiff on behalf of the Wanikin Family against Joshua Fadiora the father of the first Defendant.

The 1954 claim was in respect of (a) declaration of title to this same land (b) £50 cost of palm fruits reaped and (c) injunction. This is the proceeding and Judgment in the 1954 suit (judgment and proceedings in the 1954 suit ……………… Festus Gbadebo v. Joshua Fadiora tendered and admitted as Exhibit “A” without objection). This is the Plan No. BK 1698 in support of Exhibit “A”.

This is the judgment of the Appeal Court (tendered and marked Exhibit “C” without objection). Plaintiffs’ Plan in this case is Plan No. AK 896 on which the land in dispute is edged Green. (Plan No. AK 896 is admitted as Exhibit “D” without objection); the boundaries of the land in Exhibits “B” and “D” are the same as well as the acreage. The parties in the two cases are the same or they are privies   OMISORE: (for the Plaintiffs) replies and says: The court which decided Exhibit “A” had no jurisdiction, say, the court is only for appeals and not for original (sic) jurisdiction. Tenders photostat copy of the panel of the Oni’s (of Ife’s) Court of Appeal dated 18/12/52 At this stage Mr. Omisore says he would like an adjournment to enable him subpoena the staff of the Ministry of Justice to come and tender the Warrant of the Court which sat to decide Exhibit “A”.   Ruling: Case is adjourned at the instance of Plaintiffs’ counsel to 24/5/66 with guineas costs.” (N.B. Square brackets and underlining are by this court) On the adjourned date (i.e. the 24th May, 1966), however, the following notes appear: “OMISORE says in order that a plea of res judicata may stand the court which decided the case must have jurisdiction. The court which decided Exhibit “A” was not existing at the time .   Ruling: The plea of res judicata is overruled.

The burden is on the person alleging that Exhibit “A” is a res judicata to prove that the court which decided Exhibit “A” had jurisdiction to do so. One way of proving such jurisdiction is to tender the Warrant of the court which made the decision or to prove jurisdiction by official copy of the Warrant or by (its) publication in (the) gazette. Native courts and Customary Courts are inferior courts and so any person alleging that these courts have jurisdiction when the question of their jurisdiction is in issue must prove such jurisdiction. In this case the burden is on the Defendants to establish the court’s jurisdiction. They have failed to do so and their plea of res judicata fails with 5 guineas costs to Plaintiffs.” Case is adjourned to 6/9/66. [Square brackets and underlining is by this court].   The plea of estoppel per rem judicatam having failed, hearing in the case commenced and on the 22nd June, 1966, Fakayode, J., dismissed the plaintiffs’ (respondents’ herein) claims.

An appeal by the plaintiffs to the Western State Court of Appeal was, on the 22nd day of March, 1968, allowed and that court ordered inter alia as follows:-   “(1) that this appeal be and is hereby allowed; (2) that the judgment of the Oshogbo High Court including the order as to costs be and is hereby set aside; (3) that the case be sent back for re-trial before another Judge; (4) that costs in the High Court should abide the result of the re-trial”. (Underlining is by this court).    

It is, we think, pertinent to mention at this stage that after the ruling of Fakayode, J., on the plea of res judicata on 24th May, 1966, parties; by leave of the court, amended their pleadings the relevant portions of the amended statements of Claim and Defence read, respectively as follows:   “Amended Statement of Claim: (3) The land in dispute in this action is the area verged green on the Plan No. AK896 dated 8/5/64 filed with the original statement of claim and it corresponds with the area edged pink or red on Plan No. 1698B dated 27/4/64 filed by the Defendants with the original Statement of defence in this action. (4) The said land in dispute is the southern portion of a larger piece or parcel of land vested in the Wanikin family by native law and custom very many years ago. (6) ……………………… Among the tenants placed (by the Plaintiffs’ ancestors) on the land in dispute and paying Ishakole to the Wanikin family was Joshua Fadiora, the father of the first Defendant .” (Brackets and underlining supplied by this court).    “Amended Statement of Defence: (4) The Defendants deny paragraphs 5, 6, 7 and 10 of the statement of claim. (5) The first Defendant avers that neither he nor his father has ever been a tenant customary or otherwise of the Wanikin family. (6) The first Defendant avers that the land in dispute which is more properly shown on Plan No. 1698B filed with the original Statement of Defence and edged ‘red’ thereon was  lawfully and rightfully granted to his late father Joshua Fadiora by the late Oni Ajagun Ademiluyi about 40 years ago.

(9) In 1954 the first Plaintiff in this case instituted an action Suit No. 45/54 in the Ife Lands Court against the first Defendant’s father Joshua Fadiora and lost. (10) The Defendants will found on this case at the hearing and raise a plea of res judicata. (11) The Defendants further aver that there are about 100 tenants on the said land who paid customary Ishakole to the first Defendant as well as to his father Joshua Fadiora before him .”  (Underlining supplied by this court)   Pursuant to the order of the Western State Court of Appeal the case was heard de novo by another judge (Ogunkeye, J., as he then was) who in his judgment dated the 18th December, 1970 observed as follows:- “They (the Defendants) rely on a previous judgment in Suit No. 45/54 in the Ife Land Court to raise a plea of res judicata It is with this plea that I now intend to deal since, if it succeeds, it is unnecessary to go into any other aspect of the matter.”   Thereafter the learned Judge gave a detailed consideration of the plea and came to the conclusion that the plea succeeded and that the plaintiffs were estopped from re-litigating the issues decided in the 1954 suit in the Ife Lands Court which were precisely the same as those raised in the case in hand. He, therefore, dismissed the plaintiffs’ (respondents’ herein). The plaintiffs appealed from the judgment of Ogunkeye, J. to the Western State Court of Appeal on the only ground that:   “The learned trial Judge erred in law in basing his judgment on a matter which had been previously adjudicated upon by the High Court and decided in Plaintiffs’ favour and from which adjudication the Defendants never appealed.” The reference in the foregoing ground of appeal to “a matter which has been previously adjudicated upon by the High Court” is obviously to the Ruling of the 24th May, 1966, by Fakayode J. On the 13th May, 1974, the Western State Court of Appeal by a majority judgment (Madarikan, P. – as he then was, Kayode Eso., J. A. – as he then was, and Akinkugbe, J. A. – as he then was, dissenting) allowed the appeal. Parts of the majority judgment of the court read:   

“In our view, there can be no question that, during the first trial the issue of res judicata was determined by Fakayode, J. We are not unmindful of the fact that when the trial came before this court on appeal, we ordered a re-trial; but we wish to stress that during the first trial the issue of res judicata was taken in limine and as the decision of Fakayose, J., on that issue was not challenged before us, no pronouncement was made by this court on the issue. Consequently, we are of the opinion that the decision of Fakayode, J., on the issue of res judicata still subsists as it has not been expressly set aside. As between the parties and their privies that decision must be regarded as conclusive in so far as the issue of res judicata is concerned.

The only way the defendants as aggrieved parties can vacate that position is to get the decision of Fakayode, J. set aside by a court of competent jurisdiction ……………………. It is not competent for the High Court, in the same question arising between the same parties in one and the same action to review a previous decision not on appeal. If the aggrieved parties maintain that the first decision was wrong, they ought to have appealed from it in due time. As that has not been done here, the inescapable result is that issue estoppel applies” (Underlining supplied by this court)   The 1st defendant (appellant herein) appeals from this judgment and henceforth the plaintiffs will be referred to simply as the respondents and the 1st defendant as the appellant. Before us, learned counsel for the appellant has argued that the Western State Court of Appeal (hereinafter referred to as “the Court of Appeal”) erred in law:   (1) In holding that the ruling of Fakayode, J., on 24th May, 1966 (hereinafter referred to as “the Ruling in the first trial”) was capable of supporting a plea of issue estoppel in the circumstances of these proceedings – and (2) that the Court of Appeal also erred in law in holding that it was not open to the court of second trial (Ogunkeye, J.) to consider and decide on the plea of estoppel per rem judicatam based on Suit 45/54 of the Ife Lands Court because of the decision (i.e. the Ruling) in the first trial which had not – in the view of that court – been set aside.   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 judicatam (see King v. Hoare (1844) 13 M & W 495 at 504). 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 Outram v. Morewood (1803) 3 East 346). 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 inte partes or per rem judicatam must apply, that, (1) the same question must be for 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).

Dealing with the issue of “Finality” of judgment for the purpose of establishing successfully a plea of res judicata, the learned authors of Spencer Bower & Turner on the Doctrine of Res Judicata (1969 Ed) in Art. 164 P.134 state as follows: “A judicial decision is deemed to be final, when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution, and is absolute, complete, and certain, and when it is not lawfully subject to subsequent decision, review or modification by the tribunal which pronounced it .” (Underlining supplied by the court)   Again, in Article 168 at p. 135 the same learned authors in the same book observe: “No finding of the court or of a jury of a trial which has proved abortive, a new trial having been directed, will give rise to a valid plea of estoppel. And a decision of the court setting aside the verdict of a jury, or setting aside a judgment entered pursuant thereto, and directing a new trial, will not result in either party being estopped per rem judicatam by anything held on the facts in the judgment in which the new trial is ordered, for the judgment must be read as deciding no more than that, the first trial being unsatisfactory, the issues tried therein should be re-submitted to the court for fresh consideration.” (Underlining supplied by the court).  

Adverting, therefore, to the principles of law enshrined in the foregoing quotations and with which we are in agreement one may legitimately ask whether the ruling in the first trial was, indeed, final. What, after all, was the substance of that ruling? It certainly did not decide that the plea of estoppel based on the 1954 judgment of the Ife Lands Court (Exhibit “A”) failed because that court had no jurisdiction to deal with the matter. As we understand that ruling, it was to the effect that the learned trial Judge in the court of first trial felt   PAGE| 8   unable to sustain the plea, in the circumstances before him, as he had no evidence one way or the other on the preliminary issue of jurisdiction (an essential pre-condition to the sustenance of a plea of estoppel inter parties based on a judgment of any court of inferior record) of the Ife Lands Court which dealt with Exhibit “A”.

And, unless and until the preliminary issue of jurisdiction of any court of inferior record whose decision is sought to be used as a prop to a plea of res judicata, is decided it is, we think, difficult to give any final decision on the plea (i.e. of estoppel) based on such a judgment. If proceedings of a court are pronounced to be coram non judice a court will not consider further the questions whether the proceedings can support the other ingredients of a valid plea of estoppel per rem judicatam (such as (a) identity of interest and of parties and (b) identity of subject matter and, the pronouncement on the lack of jurisdiction of the court would in these circumstances be final: but there can be no finality in the absence of any pronouncement one way or the other on the issue of jurisdiction unless the court makes a favourable presumption on that issue (as it quite often does in respect of judgment of courts of superior record).   Be that as it may, the entire case came up, before Ogunkeye, J., for fresh hearing (i.e. trial de novo); no conditions were attached to the order of the Court of Appeal dated the 22nd March, 1968, and the pleadings (i.e. both the Statement of Claim and Statement of Defence) as amended were very much alive on the record during the hearing in the court of second trial (Ogunkeye, J.,). What then does a court of second trial do in these circumstances?   Is it to ignore the issues raised in the pleadings and thereon joined by the parties? Learned counsel for the respondents repeats the argument, advanced by him in the Court of Appeal, that it is beyond the competence of the court of second trial to entertain and give a decision on a plea of estoppel per rem judicatam based on the Ife Lands Court Suit 45/54 (Exhibit “A”) because – according to him – parties were precluded by the ruling in the first trial from re-opening that issue. In support of his contention, learned counsel for the respondents referred us to the cases of Lawal v. Yakubu (1972) Part II of 1 All. NLR 270; Fidelitas Shipping Co. Ltd. v. Exportchleb (1965) 2 All ER 4 and cited copiously from the observations of Lord Denning M.R. in the latter case. Learned counsel for the appellant, however, contends that a Court of Appeal makes an unconditional order for re-trial of a case the court of second trial has, just as the court of first trial, the necessary competence to entertain all the issues joined by the parties before it; and he referred to the cases of Roe v. Naylor (1918) 87 LJKB 958 and the observations of Mc Cardie, J. in Venn v. Tedesco (1926) 2 KB 227 at 237. In the course of their submissions considerable use was made by learned counsel on both sides of the case of Fidelitas (Supra) and we think that, in the circumstances, we ought to set out succinctly the facts in that case and take a closer look at the case as a whole. From the manner in which counsel have used this case we got the impression that if only a little more care was given to the understanding of the facts in the case, there will be little misunderstanding of the principles of the doctrine of res judicata as applied therein.

The facts in Fidelitas (Supra) so far as they are relevant for our consideration of the point in the appeal (i.e. the question of estoppel inter partes) are as follows: The owners of the motor vessel Sophia claimed demurrage against the charters and the dispute went to arbitration. The principal questions were whether the claim was excluded by a “cesser clause” in the charterparty and whether the charterers had by making a payment on account of demurrage, waived the clause. At the request of the charterers the umpire (arbitrator) stated his award (of the 21st November, 1962) in the form of a special case adding therein the statement; “subject to the answer of the court to the questions hereinafter stated, I award and adjudge that the charterers do pay to the owners a balance of demurrage in the sum of £4881.7s.1d.” The relevant question was whether the shipowners claim was excluded by the “cesser clause”. The umpire also added, in the special case the statement: “If the opinion of the court is different from the above (i.e. mine), I respectfully request that the opinion of the court be made known to me and that this award be remitted to me to enable me reconsider my award.” The special case did not distinctly raise any point about waiver of the cesser clause although the shipowners had relied on waiver before the arbitrator. His express determination of the issue relating to the cesser clause in the special case was in the shipowners’ favour but on grounds other than that of waiver. The shipowners did not get the special case remitted for the facts relevant to waiver to be stated and a specific question asked about waiver.

On the hearing before the High Court (Megaw, J.) the point of waiver was not taken. That court held that the claim for demurrage was excluded by the cesser clause, and the judge expressed the opinion, albeit obiter that the shipowners were not entitled ro raise the point of waiver. The Court of Appeal affirmed the decision of the judge, but expressed no opinion on the point of waiver. When the case went back to the arbitrator for reconsideration, the shipowners sought to raise again their contention about waiver of the cesser clause.

The arbitratior then stated a consultative case seeking the opinion of the High Court whether the shipowners should be allowed to raise it. On appeal from the decision of the High Court (Mocatta, J.,) that the shipowners could raise the question of waiver: Held that (1) the special case of November 21st, 1962 was an interim award, for it was a decision by the arbitrator of issues, subject to the opinion of the court not a consultative case; and, accordingly, when an issue raised by the special case had been determined by the court the court’s decision could give rise to issue estoppel. (2) If the shipowners were to succeed in establishing a waiver they would obtain a reversal of the determination by the court of the issue that was the subject of the interim award (i.e. whether their claim to demurrage was excluded by the cesser clause) and as they had not ensured that the question of waiver was raised in the interim award, they were estopped, by virtue of the doctrine of issue estoppel, from raising it thereafter. The foregoing in a nutshell are the facts in the case of Fidelitas (Supra).  

PAGE| 10   There is, indeed, hardly anything new in the case of Fidelitas (Supra); like the case of Lawal v. Dawudu (Supra) in which certain passages in Fidelitas were cited with approval by this court it does no more than re-state in clearer terms the age-long principles of the doctrine of res judicata as well as demonstrate the circumstances in which litigants may successfully apply these principles.   Having reviewed the facts in Fidelitas (Supra), we now propose to deal with the important question in this appeal which is whether it was proper for Ogunkeye, J., to deal with the issue of res judicata based on the Ife Lands Court Suit 45/54. Put in another form, the question is; what exactly is the implication and effect of an unconditional or unqualified order for trial de novo by the Court of Appeal of a case on appeal before that court? We think that in trials de novo the case must be proved anew or rather re-proved de novo, and therefore, the evidence and verdict given as well as the judge’s findings, at the first trial are completely inadmissible on the basis that prima facie they have been discarded or got rid of. The court of second trial, therefore, is entitled to and, indeed, must look at the pleadings before it in order to ascertain and

Other Citation: (1978) LCN/2092(SC)