Chief Sampson Okon Ito & Ors v. Chief Okon Udo Ekpe & Ors

This appeal is against the judgment of the court below, wherein that court upheld the appeal of the plaintiffs/respondents in respect of the judgment of the trial court which was delivered in favour of the defendants/appellants. At the trial court the respondents claimed against the appellants for the following principal relief:-
“A declaration that they, the plaintiffs, are the radical/titular owners in possession of all that piece or parcel of land known as and called Esuk Ikotetuong (sometimes otherwise fictitiously and popularly nicknamed Esuk Ifiayong mostly by strangers to the area) and being a piece and/or portion of Idu land generally situate in Uyo Division of the Cross River State of Nigeria which Esuk Ikot Etuong aforesaid is as set out, described and/or otherwise delineated in the plan No. LSH 751 by E.

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Ekpenyong Esqr F.N.I.S. and licensed surveyor and dated 2nd November, 1969 being verged pink (which is the same as the one in Ita Plan No. LSH 1048/LD by the same surveyor and dated 20th June, 1977) and which came into issue in the Suit No. HU/2/69 (CI/69) between the real parties in the instant cast: but in the reverse order.
And as ancillary reliefs, the respondents claimed the sum of N10,000.00 as general damages for trespass and the further sum of N10,000.00 as special damages in respect of various acts of the appellants on the disputed land. Also claimed was an order of perpetual injunction restraining the appellants by themselves and/or their privies, agents, and/or servants from any further interference whatsoever/in any shape, form and/or manner with the respondents’ exclusive occupation, possession, use and/or enjoyment of Esuk Ikot Etuong
Following the order for pleadings the parties filed and exchanged their pleadings. The respondents with the leave of the trial court filed and served an amended statement of claim. In the statement of claim as amended, the respondents pleaded copiously several decisions of the courts between the parties before the instant suit.

Among the decisions pleaded are: – (1) the decision by the High Court in Suit No. HU/2/69 (formerly No. C/1/69); (2) Decision on appeal there from by the Court of Appeal; and (3) Decision on further appeal to the Supreme Court. The respondents also pleaded four deeds of leases (Indentures), three of which were made with various companies between 1938 and 1939.

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It is also pleaded that the deeds were executed with the approval of the appropriate authority. One of them was stated to have been executed with the Government of Nigeria in 1940. All the deeds pleaded were in respect of transaction affecting the disputed land. The respondents, also to further support their claim, pleaded traditional history to show how they became seised of the land. Similarly the appellants pleaded their traditional history, acts of possession and ownership to challenge the claim of the respondents to the disputed land.
The learned trial judge after hearing the evidence and addresses of learned counsel, dismissed the respondents’ claim. They, therefore appealed to the court below, and their appeal succeeded. It is against the judgment and orders of the court below that the appellants have now appealed to this court.
In the brief of argument filed on their behalf, five issues were postulated for the determination of the appeal. These are:-
“(1) Whether the Court of Appeal was right in holding that the respondents proved in the lower Court the identity of the land in dispute per se or vis-a-vis the subject matter of HUI2/69.
(2) Whether the Court of Appeal adopted the correct approach in its consideration of the appeal.
(3) Whether the Court of Appeal can properly raise the doctrine of issue estoppel on behalf of the appellants in the Court of Appeal when the said appellant did not raise the same either in the High Court or in the Court of Appeal.

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(4) Whether the learned trial judge’s judgment should not stand in view of the totality of the evidence available at the trial.
(5) Whether the Court of Appeal was right in its finding that the defendants/ appellants were trespassers, thereby awarding damages and granting an injunction against them”,
For the respondents their learned counsel, AU. Ekpong, Esq, framed in the respondent’s brief the following issues for consideration in this appeal:-
“(i) Whether the various exhibits admitted in the case were properly admitted to support acts of possession, thus acts of ownership of the plaintiffs/respondents and if so, whether the judgment of the trial court should stand.

(ii)Whether the issue of identity of and boundaries of the land in dispute and acts of possession having been resolved in suit No.HU/2/69, the present plaintiffs/ respondents should have to take the trouble to prove them all over again in this suit No. HU/12/77.
(iii) Whether issue estoppel was raised or at all or by any necessary implication by the plaintiffs/respondents or their counsel and whether or not, an appellate court could take on a point of law on the face of the record even though not made a ground of appeal.”
It is evident from a careful reading of the two sets of issues identified by learned counsel in the respective briefs of the parties that they are similar in terms of their formulation of the issues at stake in this appeal. This

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appeal would, however, be considered in accordance with the issues identified in the appellant’s brief.
The argument in support of this appeal began in the appellants’ brief with the consideration of issues 1&3. In respect of these issues, learned Senior Counsel observed, and quite properly, that the respondents’ case rested on their traditional evidence and the documents tendered and admitted at the trial. These are certified court proceedings in Suit No. HU/2/69 between Bruno O. Etim & 2 Ors (for themselves and people of Ifiayong v. Chief Okon Udo Ekpe & Ors (for themselves and people’ of Idu village). This case contained several other proceedings which are as follows:-
(a) Suit No. 10/33 (WACA)
(b) Suit No. C/21/36 (High Court)
(c) Suit No. 105/56 (Native Court)
(d) Suit No. 23/55/56 (Native Court)
(e) Suit No. 11/98/29 (Native Court)
These documents learned Senior Counsel conceded formed the basis of the plea of estoppel per rem judicatam by the respondents to defeat the claim of the appellants to the disputed land. It is however, the submission of the learned Senior Advocate that the appellants both by their plan of the land in dispute exhibit24, and their evidence at the trial disputed the claim of the respondents that the land in dispute in Suit HU/2/69 is the same as the land in dispute in the instant case. It is the contention of the appellants that the learned trial judge was right to have preferred the evidence of the appellants to that of the respondents.

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It is also the submission of learned Senior Advocate for the appellants that as the respondents failed to establish their plea of estoppel per rem judicatam, they were rightly held to have failed to discharge the onus of proof as plaintiffs. In support of his submissions, reference was made to the following cases. Aro v. Fabolude (1983) I SCNLR 58; Bala v. Bankole (1986) 3 NWLR (Pt. 27) 141 and Iyaji v. Eyigebe (1987) 3 NWLR (PI. 61) 523. It is also the submission of Chief Tunji Fadayiro, SAN that the learned trial judge specifically found that the respondents failed to establish that the issues decided in the previous cases are the same as in the present suit. And that in any event, the identity of the disputed land was not also established by the respondents. In effect the contention made for the appellants is that the respondents having failed to determine the extent of their land, have failed to prove with certainty the area of land in respect of which they are claiming declaration and injunction. Chief Tunji Fadayiro, therefore subjected to very severe criticism the reversal of the finding of the High Court Judge by the Court of Appeal per Uwaifo JCA,(as he then was), who in the course of his judgment, said:-
“…the so called overlapping in two places referred to by the trial judge as the Western and Southern and also in ‘the South Eastern Side occurred either as a matter of derailed accuracy by the plaintiffs or an attempt to create distinction without a difference by the defendants or vice-versa (Italics). It may be a matter bordering purely on the perspective from which the respective surveyors saw the description of the land in dispute (page 202 line 40 to 204 line 7 (Italics mine).”

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Chief Tunji Fadayiro, in respect of the above quoted passage from the judgment of Uwaifo J.C.A, (as he then was), then invited this court to regard that what was said in that passage as merely speculative. It is the submission of learned counsel that there is no evidence on record or in the submission of counsel either in the brief or in oral argument to justify that view of the evidence as pronounced by Uwaifo, J.C.A. (as he then was). He further argued that as it is not the function of the court to speculate on what might have been the case of a party to an action; that the judgment of the court below ought to be set aside. In support of his submissions, he made reference to the following cases: – Adebanjo v. Brown (1990) 3 NWLR (Pt. 141) 661 at 673; Bomo Holding Co. Ltd. v. 80goco (1971) I All NLR. 324; Owe v. Oshinbajo (1965) I All NLR 72.
While learned counsel, Chief Tunji Fadayiro, readily conceded that it is the correct position of the law that where one issue has been conclusively proved in one case, further proof is no longer necessary in subsequent cases, yet it does appear in his submission that the court below should not have applied this principle in the instant appeal.

In the view of learned Senior Counsel, the Court of Appeal was wrong to have held that Exhibit 20 having been admitted in evidence, the respondents have thereby discharged the onus on them to prove the boundaries of and the identity of the land in dispute in this case. It is therefore his submissions that though Exhibit 20 was

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admitted in evidence, the respondents still have the onus of proving that the land in dispute in Exhibit 20 is the same as the land in the case on appeal.
I now turn to issues 2 and 4 where the complaint of the appellants is that in reversing the judgment of the trial court, the court below raised an issue that was neither raised by the parties in general nor the respondents specifically either at the High Court or at the Court of Appeal. The issue allegedly so raised is in connection with the application by the Court below the doctrine of “Issue estoppel” in the consideration of the questions raised in the appeal. The contention made for the appellants is that what was raised at the hearing of the appeal vide the brief of the appellants in the Court below by their then learned counsel. Chief E.E. Anwan was the issue of Estoppel per rem judicatam” and not “Issue Estoppel”. It is therefore the submission of the learned Senior Advocate for the appellants that the Court below was wrong to have decided the appeal against the present appellants upon an issue raised by the Court suo motu and without hearing learned counsel for the parties upon the issue so raised. The following cases were referred to in support of that submission: – Adeosun v. Babalola (1972) 5 SC 292; Chief Registrar v. Vamos (1976) 1 SC 33 at pp 40-41: Kate Enterprises Ltd v. Daewoo Ltd (1985)2 NWLR (PI.5) 116 Shadipe v. L (1985) 2 NSCC 1102 at 1126-1127.
Having reviewed as above the submission made on behalf of the appellants in respect of issues 1, 2&3, I think I should now set down the reply of the respondents to the several contentions made for the appellants.

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In the brief filed on behalf of the respondents by their learned counsel A.U Ekong Esq, the thrust of the submission made for the respondents is that the appeal be dismissed. To that end, learned counsel took the view that the main plank of the appellants’ argument is that the respondents did not prove the identity of the land in dispute, its boundaries and the traditional history to support their claim. This is mainly because the contention of the appellants is that the land involved in suit HU/2/69 is not the same as that in suit HU/12/77 and which has led to the instant appeal. However, the learned counsel for the respondents in the respondents’ brief has however, argued that the contention of the appellants was made in error. He then submitted that the respondents have by their pleadings averred that the land in dispute was the subject of a previous litigation between the parties in suit No. HU/2/69.

It is further submitted for the respondents that the appellants in paragraph 2 of their statement of defence admitted the relationship between the parties as pleaded in paragraph 1(a) (i). 1(a) (ii), 1(a) (iii) 1(a)(iv). 1(b)(i), 1(b)(ii), 1(b) (iii), and 1(b) (iv) of the respondents’ amended statement of claim.
I have earlier in this judgment referred to the contention made for the appellants that the court below was wrong to have held that the respondents established the identity of the land in dispute. But linked with this contention is the other contention of the appellants that in the resolution of whether the identity of the disputed land was established

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by the respondents, the court below was wrong to have applied the principle of “Issue Estoppel” to determine the appeal in favour of respondents. This is because, as it is the contention of the appellants that neither of the parties pleaded it, nor was it raised by learned counsel who appeared for the parties m the hearing of the appeal before the Court below. The learned counsel for the appellants however later agreed while addressing this court that at the address stage in the trial court, learned counsel for the respondents did raise the plea of res judicata as part of their case.
The question raised above must lead inexorably to the consideration of what is the meaning and effect of not only the plea of res judicata but also “Issue Estoppel”, and the principles governing their application in our jurisprudence. To begin with, I think it ought to be noted that the doctrine is not only rooted in our jurisdiction, but it has also achieved and become part of the public policy of the courts. It therefore follows that all courts of record are obliged to apply its principles when applicable to the cases under their consideration. The reason for the position of the court in this regard was eloquently enunciated by Aniagolu J.S.C, in Aro v. Fabolude (1983) 1SCNLR58, (1983) 14 NSCC 43 where at page 45. His Lordship said :-
“… Public policy demands that there should be an end to litigation once a Court of competent jurisdiction has settled by a final decision, the matters in contention between the parties. Not only must the Court not encourage prolongation of a dispute, it must also discourage proliferation of litigation. And so the maxim

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interest reipublica ut sit finis litium has for long been accepted as one of the established principles of our law. Of equal importance in our law -that no man ought to be twice vexed, if it is proved to the Court that it is for one and the same cause. Expressed in the terse Latin maxim: nemo debet bis vexari, si constat curiae quod sit pro una et cadem causa, the principle runs through the entire gamut of our legal approach, whether it be in civil or criminal matters.

It therefore forms the foundation of the plea of res judicata in civil cases.”
His Lordship then further observed at page 46, thus:-
“In civil cases before this principle is applied the res (the subject matter) in connection must be the same, the issue and the parties the same, in the new case as in the earlier proceedings where any of the three matters is missing in the new case a pleas of res judicata will ordinarily fail see Odua v. Nwanze (1934)2 WACA 98 at 100-102″. 
It is however interesting to note that where the estoppel per rem judicatam pleaded is classified as estoppel by record inter parties, it has been held that there are two types of that kind of estoppel. The first is called “cause of action estoppel and the second “issue estoppel” see Fadiora v. Gbadebo (1978) 3 SC 219, 228-229 where Idigbe JSC, distinguished the two types of estoppel by record inter parties, thus:
“Now, there are two kinds of estoppel by record inter parties or per rem judicatam as it is generally known. The first is usually referred to as ’cause or action estoppel and it occurs when: the cause of action is merged in the

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judgment. That is, Transitin rem judicata. See King v. Hoare (1844) 13 M&W 495 a1504. 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 re-litigating the same cause of action. There is however, a second kind of estoppel inter parties and this usually occurs where an issue has earlier on been adjudicated upon by a court of competent jurisdiction and the same issue come incidentally in question in any subsequence 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 haying 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 inter partes or per rem judicata 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 preceding), (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

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proceedings must be the same) (per se or by their privies)”.

It is pertinent to observe that the above quoted dictum that proceeded from the mouth of Idigbe J.S.C, was quoted with approval by Ogundare J.S.C in the course of his judgment in Ogbogu v. Ndiribe (1992) 6 NWLR (Pt 245) 40 at 61-62. 
In this appeal, as I have already stated the contention made for the appellants is that the Court below, per the judgment of Uwaifo, JCA ( as he ,then was) unilaterally decided the appeal before the Court on the view that issue estoppel applied to the facts pleaded and upon which evidence was led at the trial. Before answering this question, I think it is pertinent to quote in extenso the relevant portion of his judgment in the Court below on the point. At pages 205-207, his Lordship said, thus”-
”In suit No. HU/2/69 in which the present defendants were the plaintiffs, the survey plan filed and tendered by them was No. EPS/97 (LD) dated 12th March, 1969 and drawn by Mr Okon E. Eyo, Licensed Surveyor and Architect: See paragraph 8 of the amended statement of claim at page 44 of exhibit 19. It was admitted in that case as exhibit 1; See page 51 of exhibit 19. The said plan is exhibit 16 in the present case. The survey plan filed and tendered by the present plaintiffs as defendants in that case was No. ISH 751/LD dated 22nd November, 1969 and drawn by Mr. E. Ekpenyong. F.N.I.S.,Licensed
Surveyor: See paragraph 3(b) of the statement of defence at pages 1920 of exhibit 19. It was admitted in that case as exhibit 2; see page 55 of exhibit 19. The said plan is

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exhibit 20 in the present case. It is important to state these facts in view of what will follow later. Exhibit 20 is the same as exhibit 23 which the present plaintiffs filed and tendered in this case, because the learned judge did not give exhibit 20 its proper recognition be freely cavilled at exhibit 23. The land actually put in dispute as per 20 is the same as the land in dispute as per exhibit 23. That therefore draws the necessary correlation between the decision in suit No. HU/2/69 and the present case, suit No. HU/12/77.
In suit No.HU/2/69 (exh. 19) at page 224, the learned judge (L.E. Ita, J) said;-
“The defendants … in their defence have superimposed their plan on plaintiffs’ plan and have marked out in green the southern portion of exhibit “2” which they say is their land called Ifieyong Beach or Esuk Ikot Etuong. It is upon this southern portion and not the whole piece of land edged yellow in plaintiffs’ plan that defendants join issue with plaintiffs.

For the purpose of clarity the defendants claim the land verged with a green border and lying south of defendants’ plan exhibit “2”. A remarkable feature about these two plans exhibits” 1″ and “2”  I may mention here in passing that both plans are drawn to the same scale i.e. 400 feel equal one inch.’
“It should be noted that even though Esuk Ikot Etoung sometimes otherwise was also called Ifiayong, each of the plaintiffs have also asserted and claimed ownership of it. This fact will be shown later to have been lost on the trial court in the present suit in his observation following a visit

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to the locus in quo. At a later stage of his judgment, Ita. J., said in suit No. HU/2/69 at page 126:
“When one considers defendants’ acts of ownership upon the of land in dispute admitted by the plaintiffs themselves then one can hardly see the wood for the trees (sic) I shall proceed to enumerate their acts of ownership of the defendants which I consider to be relevant.
Almost every features (sic) on plaintiffs’ plan exhibit” 1″ which shows acts signifying exercise or rights of ownership are done by the defendants. By their plan the plaintiffs have conceded this fact in favour of Idu people. There is no evidence that the plaintiffs have ever let out any portion of Ada Ita land, Abeit land or Obot Idim Ibet land to any stranger either for rent or tribute’
“The learned Judge then referred to the various exhibits tendered by the defendants in that case in support of court decisions in their favour against the plaintiffs in that case and leases granted by them, and went on at page 130 to say that:-
‘There is no evidence on Exhibit 1 that the plaintiffs have ever done any acts of signifying their ownership of the three pieces of land they claim, not to mention describing those acts as positive and numerous enough to warrant the inference mat any piece of land in south of exhibit, 1 is ,he property of the plaintiffs. On the contrary exhibit, 1 shows that every act of ownership to the south of plaintiffs’ plan its having been done by defendants’ people.
From all these acts of ownership I am convinced that the plaintiffs were aware of the fact that defendants (Idu people) were suing as owners of the land and were

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protecting their interest in Esuk Ikot Etuong land. Defendants had been suing to eject trespasser; who had wrongfully entered and/or occupied their land. Defendants had let out to government the Police Station and Post Office sites on their land. See Indentures of Leases Exhibits 11, 12. 13 and 14 and also let out portions of this land to foreign firms to the knowledge and acquiescence of plaintiffs…………….
The United Africa Company again acquired a site on the land claimed by the defendants’ people and built a rest house called Idu rest house. See surveyor’s reference in exhibit 2. It will be obvious that much of the land claimed by the defendants’ people which includes the three pieces of land claimed by the plaintiffs had been the subject of Court actions by Idu people to maintain their right of ownership of the land the Idus claim to belong to them.

I have also taken pains to pin a piece of paper on each site of the land in dispute to mark areas upon which Idu people have exercised acts of ownership’
“In the end, the judge concluded at page 137:-
‘In my opinion, the two defendants on record by their defence have given evidence to support their plea of long possession and numerous acts of ownership and have defeated the plaintiffs’ claim for title, I hereby give judgment for the defendants not in respect of all the lands claimed by the plaintiffs in exhibit “1” but in so far as the area verged red in exhibit “2” is concerned, the northern part of which is verged green. Accordingly, I dismiss the plaintiffs’ claim to the said area of land against the two

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defendants on record with costs’
“The true effect of the above was not to give judgment conferring title on the defendants in that suit over the area verged pink in exhibit 2 (although referred to as red in the judgment obviously owing to the colour used) but to show the delimitation in respect of the area covered which the defendants (now plaintiffs) did prove acts of possession and ownership. The further effect of what the trial judge did in that case was to make findings relating to who were in possession of the land in dispute. The findings were in favour of the defendants (now plaintiffs) and so long as they were not reversed on appeal, they now constitute issue estoppel”
Before that analysis of the judgment relied upon by the respondents to ground the plea of issue estoppel in favour of the respondents, the court below, had considered the view of the learned trial judge upon the evidence with regard to the disputed land in this appeal and the land which formed the subject of the previous litigation between the parties. The learned trial judge had after comparing the survey plans tendered and accepted at the trial for the parties took the view that while the survey plans, Exhibits 20 and 23 filed for the respondents are identical, they are however both different and distinct from survey plan No. RIM/8015LD of I0/6/78, admitted as Exhibit 24 for the appellants. The reasons given for coming to that conclusion are (1) that although the land verged pink in Exhibits 20 and 23 overlap the land verged yellow at the Western and Southern end, there is no such overlapping in Exhibit 24; (2) that such overlapping of the land verged pink and claimed by the respondents as in

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Exhibits 20and 23 is not identical with the land verged in appellant’s land in Exhibit 24; (3) that the legend in the survey plan, Exhibit 23, does not identify the land actually claimed by the respondents.

The court below, after a full appraisal of the reasons so given, then held that the learned trial judge was wrong to have concluded that the disputed land in Exhibits 20 and 23 is different and distinct from that identified in Exhibit 24. I have also examined the survey plans, and cannot help but agree with the conclusion of the court below that the three survey plans portray the same land.
In this appeal learned Senior Advocate for the appellants has also argued that the court below was wrong to have placed reliance on paragraph 6(1) of the respondents’ statement of claim, to justify the conclusion of the court as to what transpired in an earlier case between the same parties and the subject matter of the present suit. The basis of this argument being that as pleadings cannot be substituted for evidence, the court should not have placed any reliance on the averment made in the said paragraph 6(1) of the respondents’ pleadings. It is therefore necessary to refer to paragraph 6(1), and to the other averments made by the parties in their pleadings. Paragraph 6(1) of the respondents’ statement of claim reads:-
“A declaration that they, the plaintiffs, are the radical/titular owners in possession of all that piece or parcel of land known as and called Esuk Ikot Etuong (sometimes otherwise fictitionally and popularly

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nicknamed Esuk Ifayong mostly by strangers to the area) and being a piece and/or portion of Idu land generally situate in Uyo Division of the Cross River State of Nigeria which Esuk ltok Etuong aforesaid is as set out, described and/or otherwise delineated in the plan No.. LSH/75 I by E. Ekpenyong Esq F.N.I.S. and Licensed Surveyor and dated 22nd November, 1969 being therein verged pink (which is the same as the one in the Plan No. LSH I048/LD by the same Surveyor and dated 20th June, 1977) and which came into issue in the suit No. HU/2/69 (CI/69) between the same REAL PARTIES in the instant case but in the reverse order”,
It is manifest from a careful reading of the above averment made for the respondents that they rested their case against the appellants on two survey plans No. LSH 751 dated 22nd November 1969 and LSH. 1048/LD dated 20th June, 1977. These two survey plans were not only prepared by the same Surveyor, E. Ekpenyong Esq F.N.I.S., but were also made in respect of the same land, were featured in suit No. HU/2/69.

It would appear from a careful reading of pleadings of the appellants in their statement of defence at the trial, that they admitted that there was such a suit known as HU/2/69 between the parties though they pleaded that they had appealed against the judgment to the Court of Appeal, they did not acknowledge that they lost in that court, and that their further appeal to the Supreme Court was dismissed. The judgment of the Supreme Court was tendered by the respondents as Exhibit 22. They,

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however, denied that the 1st and 4th respondents in this appeal, and who were some of the defendants in that suit did not defend the action in a representative capacity. It was also pleaded for the appellants that as the land in dispute is not beach land as averred by the respondents in that suit, the appellants have appealed against the judgment in suit No. HU/2/69 to the Court of Appeal. In respect of the averment made in paragraph 6(1) of the respondents’ statement of claim, quoted above, the appellants in paragraph 10 of their statement of defence, pleaded thus: ”
In answer to paragraph 6(i) -(viii) of the Statement of Claim, the defendants say that the plaintiffs are not entitled to any of the reliefs sought and that the claim is speculative and should be dismissed with substantial cost”
It is evident, in my respectful view, that from the pleadings of the parties, issues were joined on whether the disputed land in the instant appeal was the same as that litigated in the suit No. HU/2/69. In this regard, I need to observe that parties are bound strictly by, and are not allowed to depart from their pleadings – See Ogiamen v. Ogiamiem (1967) NMLR 245; Ukaegbu v. Ugoji (1991) 6 NWLR (Pt.196) 127 at 156. Hence parties can then lead evidence in support of their pleadings N.I.P.C. Ltd. v. Thompson  Organisation Ltd. (1969) NMLR 99. Evidence led which is not supported by the pleadings goes to no issue. Such evidence if inadvertently admitted will be expunged. It ought to be also noted that pleadings must contain facts and not law. Points of law can be raised in pleadings. A party relying on estoppel must specially

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plead it. See Owonyin v. Omotosho (1961) All NLR 304; (1961) 2 SCNR 57; Obanye v. Okwunwa & Ijoma 10 NLR 8. Flowing from the authority of case law decisions, it can be said that it is well settled and there is statutory provision enabling judgment regarded as a relevant fact in an action to be pleaded. See Section 54(1) of the Evidence Act which provides as follows:-
“54(1) – If a judgment is not pleaded by way of estoppel it is as between parties and privies deemed to be a relevant fact, whenever any matter, which was, or might have been, decided in the action in which it was given, is in issue, or is deemed to be relevant to the issue in any subsequent proceedings.’

It is obvious from the provision of section 54(1) quoted above that in any litigation where a previous judgment between the same parties or their privies constitutes a fact in issue as in the instant appeal, such judgment is a relevant fact which could be pleaded as (i) res judicata or (ii) a relevant fact.
Now, I have previously referred to the contention made for the appellants by their learned Senior Advocate that: – (i) the learned Justice of the Court of Appeal was wrong to have reversed the judgment of the trial court upon the principle that the doctrine of issue estoppel was available to the respondents, and (ii) that the learned trial judge was wrong to have held that the disputed land was not the same. With regard to the second of the reasons stated above, it is my respectful view that the Court below was right to have held that the disputed land in this appeal is

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the same as the land litigated between the parties in HU/2169. From a careful examination of all the survey
maps tendered Exhibits 20,23 and 24 by the parties at the trial, I find myself in agreement with the view of the Court below, that the distinction made between them by the learned trial judge amounted to a distinction without a difference.
It is evident from the argument presented in this regard by learned counsel, that what is crucial in this appeal is whether the Court below was right to have determined this appeal in favour of the respondents on the doctrine of issue estoppel. I have before now referred to some of the principles that should guide a court in determining when this principle would apply. And also what a court should do when the principle has been properly pleaded by a party.
For the determination of this question, which also fell for resolution in the Court below, reference ought to be made to some of the decisions of this court bearing on this matter. In that regard, I refer to Ezewani v. Onwordi (1986) 4NWLR (PI. 33) 27: (1986) 6 S.C. 42. The facts of this case that are relevant to this appeal are as follows:-
The case apparently began in 1962 when both parties sued themselves over the same land in suit No. B/44/62 and B/47/62 They were subsequently consolidated for trial. In two of these suits, the Ogwashi-Uku people as plaintiffs claimed declaration of title, damages for trespass and perpetual injunction over the same farmland which they called Odonkwo land. But at that time, the Ibusa people as defendants did not counter-claim for any declaration of title to the land in dispute. In both

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pleadings and the evidence adduced at the trial of the 1962 cases, both parties relied heavily on their traditional histories. The trial judge therefore at the conclusion of the trial disbelieved the traditional history of the Ogwashi-Uku people. On the other hand, he believed the evidence led on the traditional history of the Ibusa people.

In the result, the Ogwashi-Uku people lost their case both at the High Court; and on appeal to the Supreme Court. However, since the Ibusa people did not counter-claim for a declaration of title to the land in dispute, none was declared in their favour. Consequently in 1996, the Ibusa people as plaintiffs took out a fresh action against the Ogwashi-Uku people as defendants on the same land. In that action, the Ibusa people sought for declaration that the boundary between the parties is located as pleaded by them; and also for a declaration of title to the piece of disputed land. They also asked for damages for trespass and an order of injunction against the Ogwashi-Uku people in respect of the disputed land. In their amended statement of claim the plaintiffs pleaded the boundaries of their land and the acts of ownership excised thereon; but they did not specifically plead their traditional history therein. Rather, they pleaded the facts and findings of the proceedings and judgment of the 1962 cases. The Ogwashi-Uku people in their amended statement of defence pleaded traditional history and led evidence thereon. The learned trial judge, however, accepted the earlier findings by the High Court as constituting issue estoppel. On appeal to the Supreme Court, the argument of the appellants, (i.e. the Ogwashi-Uku people) was that

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as the respondents (lbusa people) did not expressly plead their traditional history again, evidence accepted thereon went to no issue. It was further argued for them that before issue estoppel can be relied on, it must be specifically pleaded The Supreme Court in no uncertain terms held that the findings made on traditional history in favour of Ibusa people by the High Court in the previous proceedings were available to them in the case subsequently commenced by the Ibusa people. Also, the Supreme Court held that it was unnecessary to plead issue estoppel expressly if the judgment in support of it had been pleaded and admitted in evidence. It is pertinent to quote the ipsi dixit of some of their Lordships of this Court on the positions they took:-
Nnamani J.S.C. at page 51 of his judgment said:-
“It seems to me … that the traditional history put up by the respondents in the 1962 cases and which was then accepted by the learned trial judge was properly used by the trial judge in this case. I think it was sufficient that the respondents relied on Exhibit F, the record of proceedings in those cases. I do not myself see the need for them to lead evidence to prove the traditional history again”.
On his part, Oputa J.S.C. said at page 52:-
“All that the 1962 cases decided was that having regard to the traditional histories of the parties and other evidence such as acts of possession etc. the land in dispute did not belong to the people of Ogwashi-Uku.

It is important to emphasise this point quite early in this judgment because all I want to point out is the impact and extent of the law as it relates to Issue Estoppel. Although

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the 1962 cases did not resolve the issue of title in favour of Ibusa people (since they claimed no title) yet it resolved that issue against Ogwashi-Uku in any future dispute inter partes about the same piece or area of land”.
(Oputa J.S.C.’s emphasis).
Later at page 56 the learned justice said:-
“The 1962 cases were pleaded. It was the duty of the court of first instance to give effect to these judgments. If the trial court erred at all, it erred on the side of caution. It was not necessary after pleading the 1962 cases to go allover again receiving evidence on matters and issues (like the traditional histories of the-parties) which had been finally decided inter partes. -The Court of Appeal Benin Divisional was right in its mild censure of the trial court in receiving or rather allowing the parties to repeat the evidence of the traditional history decided inter partes in the 1962 case. The Asaba High Court and the Court of Appeal Benin Division were both right in treating the 1962 cases as entirely and effectively estopping the people of Ogwashi-Uku claiming the land, then in dispute, and a
greater part of which is (now) in dispute as theirs”. (Oputa JSC’s emphasis).
I now turn to the instant appeal. The facts in this appeal certainly by comparison with the facts disclosed in Ezeani v. Onwordi (supra). It would be recalled that in the instant appeal, there was a previous litigation between the parties in Suit No. HU/2/69 wherein the appellants were the plaintiffs and the respondents, the defendants. The appellants lost the action both in the High Court and the Supreme Court. The respondents as the defendants in that suit did not counter-claim for title, hence they

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commenced this action to obtain a declaration as owners of the land. In that action, to which I have adverted earlier in this judgment, they pleaded the judgment in suit HU/2/69 and the judgment of the Supreme Court in which their claims to the disputed land were upheld. Also pleaded were various documents to prove their right or possession to the disputed land, and also led evidence thereon.
However, having regard to the principles enunciated above, in Ezeani v. Onwordi (supra), the court below held that the findings in favour of the respondents (as defendants in suit No.HU/2/69) of acts of possession and ownership are what would determine the party that would succeed in this appeal. I must however consider the argument made for the appellants that issue estoppel was not specially pleaded by the respondents.

This question as to whether it is sufficient to plead the facts and circumstances of a previous litigation to found issue estoppel was -considered by this Court in ; Idigbe JSC, observed inter alia, thus :-
“It is my view that the Court of Appeal was right in rMago Chinwendu v. Mbamali (1980) 3-4 SC 31ejecting this contention of the appellants. Undoubtedly the old rule was that estoppel by record and deed must be pleaded where, as here, there was opportunity to do so; under the modem practice it is not however, necessary to plead estoppel in any particular form so long as the matter constituting the estoppel are in such a manner (as has been done in the pleadings of the respondents in these proceedings) to show that the party pleading relies upon it as a defence or

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an answer”.
In the instant appeal, there can be no doubt from even a mere perusal of the pleadings of the respondents in their amended statement of claim that the respondents pleaded very copiously the materials they would require to rest their case on issue estoppel. It was therefore proper for the Court below to have considered the several documents so tendered and admitted during the trial to determine whether issue estoppel was established by the respondents. And where it was found established as in the instant appeal, it became the duty of the Court below to determine the appeal on that basis. It must be remembered, as I have tried to show above that it is a cardinal principle of public policy that the court should not encourage the relitigation of an issue that has been decided by a competent court between the same parties in respect of the same matter, or cause or an issue in the course of a previous proceedings. The learned trial judge rather than dealing with this matter upon the well settled principles of law revealed by the pleadings and the evidence before him that “issue estoppel” may well apply to the case, proceeded to hear and determine the matter without adverting to the issue raised as aforesaid. The Court of Appeal was therefore justified to have reversed the decision of the trial court, and to also arrive at its decision on the evidence and on the applicable law. See Tonazzi v. Brunetti (1953) 14 WACA 403; Lion Building v .M M Shadipe(1976) 12 SC 135 162; Chief Frank Ebba v. Chief Warri Ogodo (1984) I SCNLR 372, (1984) 4 SC 84, 90. As the main issue in this appeal is whether “issue estoppel” applied as found by the Court

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below, and as I have upheld the Court below in that regard, I do not consider it necessary to consider the other issues raised in this appeal. In the result, this appeal is dismissed by me. The respondents are entitled to their costs and they are hereby awarded the sum of N 10,000.00 only.