Olowo Okukuje v. Odejenima Akwido

I have had the privilege of reading in advance, the lead judgment of my learned brother Katsina-Alu and with all humility I am unable to subscribe to the conclusion arrived at therein; alternatively I agree with the judgment of my learned brother Iguh JSC which I also have had the advantage of reading in advance. I agree with reasons he advanced in support of the conclusion which I hereby adopt as mine.

The plaintiff/appellant claimed in the trial court for a declaration of title and forfeiture to a piece or parcel of land situate in Ofagbe Village in Isoko Division within Ugheli Judicial Division. He also claimed for N200.00 general damages for trespass committed by the defendant, his servant or agents and mandatory injunction.

The defendant denied the plaintiff claim and counter-claimed for a declaration of title to that parcel of land lying and situate along Egbahe Street in Ofagbe Village in Isoko Local Government Area within the jurisdiction of the Honourable court.

P.34

At the trial court, the parties led evidence in support of their respective claims as averred in their pleadings. Each party tendered a survey plan depicting the extent of the land being claimed.

In his considered judgment the learned trial judge gave judgment for the plaintiff but refused to grant him the prayers for a forfeiture and a mandatory injunction, justifying his refusal on the long stay on the land in dispute by the members of the defendants’ family.

Dissatisfied with trial court’s decision the defendant lodged an appeal against it to the Court of Appeal, Benin Division, which in a unanimous decision allowed the appeal on ground of res judicata and issue estoppel which the appellate court found successfully established, contrary to the findings of the trial court on the same issues.

The plaintiff has now appealed to this court. The learned trial judge it seems did not give adequate consideration to the evidence adduced in support of res judicata and issue estoppel. The learned trial Judge opined thus:-
“It is quite clear from above that the area claimed by the defendant was a building plot unlike the instant case where the defendant in his counter-claim claimed a piece or parcel of land lying and situate along Egbahe Street shown in Exhibit ‘B’. In effect the area he claimed in Exhibit ‘B’ is by far larger than the area he claimed in Exhibit ‘C’ and the subject-matter cannot therefore be the same as Exhibit ‘B’ and the evidence therein. It is also my view that neither the judgments in Exhibits ‘C’ and ‘D’ nor the evidence given therein could create estoppel per rem judicatam as between the plaintiff and the defendant since the evidence, the issues and the reasons for the decision will be different. For a judgment to create estoppel, between the parties, the estoppel must be mutual as, between the parties”

P.35

However, the Court of Appeal after its thorough and meticulous consideration of the evidence adduced in support of “estoppel per rem judicatam” AND “issue estoppel” in its lead judgment delivered by Edozie JCA, with which Musdapher JCA and Ejiwunmi JCA (as he then was) agreed, concluded as follows.
On the two issues as regards the identity of parties-
“In the case in hand, it is clear that the parties in the previous judgment, Exhibit ‘C’ are the same as the parties in the present case except that superficially the defendant in Exhibit ‘C’ was sued personally although he in the instant case sued in a representative capacity for himself and on behalf of Akpara family of Ofagbe Village. But it is trite that in dealing with customary court cases, what matters is the substance and not the form of the claim: Ben lkpang & Ors. v. Chief Sam Edoha & Ors (1978) 7 SC 221. Learned counsel for the appellant submitted, and this was not disputed by the opposing counsel that although the respondent in the present case was in the previous proceeding sued personally, he nevertheless, defended the action in a representative capacity for the Akpara family. After scanning through Exhibit ‘C’ I agree entirely with him”,
XXXXXXXXXXXXXXXXXX”
I am satisfied that the parties to the previous proceeding are the same as the parties to the present case. The principal relief sought in the two proceedings, to wit, title to land are also the same. The issue in the two suits are therefore the same”,

On the res or subject-matter in dispute, the learned Justice of the Court of Appeal said –
“With respect to the subject, it is common ground that the land in dispute in the former proceedings is smaller than the land in the present case.

P.36

In Exhibit ‘C’ the claim was for a declaration of title in respect of a building plot which according to Oweh customary court Judges who inspected it measured 48ft by 30ft. The area in dispute in the present case is not specified but from the survey plans Exhibits ‘A’ and ‘B’ it is a much larger area of land. Learned counsel for both parties appear to be in agreement, and the lower court was of the same view, that the land in dispute, the subject matter Exhibits ‘c’ and ‘D’ is part of the land in dispute in the instant case but they have agreed to disagree on the effect of the previous judgment on the case under consideration.”
XXXXXXXXXXXXXXXXXX
“Now, reverting, to the present appeal and applying the principle distilled from the Amos Ogbesusi Aro v. Salami Fabolude (supra) to the present case, it seems clear that the learned trial Judge was in error in entering judgment in favour of the respondent in respect of the entire land verged pink in the respondent’s Survey plan Exhibit ‘A’ in the face of the judgment of the Oweh Customary Court, Exhibit ‘C’ adjudging the appellant owner of a plot of land forming part of the large area verged pink in Exhibit ‘A’. At the worst, the lower court should have given the respondent judgment for the area verged pink less the area the subject-matter in Exhibit ‘c’ and if this area is not identifiable because no plan was used, to non-suit the appellant so as to give him the opportunity to establish that portion in subsequent action. The lower court was also clearly in error when it failed to appreciate that the decision of the Oweh Customary Court with respect to the traditional histories of the parties constituted an issue estoppel precluding the respondent from re-opening the issue in a subsequent proceeding,”

P.37

The learned justice of the Court of Appeal had earlier concluded that both the parties in the previous case involving Exhibit ‘C’ and the present action are the same.

For the claim or defence of estoppel per rem judicatam to operate, the following must be established:-
1. The parties in both previous case and the present case are the same.
2. The subject-matter of or “res” in the two cases are the same.
3. The issue involved in the two cases are also the same.
See Ukaegbu & Ors v. Ugoji & Ors. (1991) 6 NWLR (Pt.196) 127; Omokhafe v. Esekhome (1993) 8 NWLR (pt.309) 58; Madukolu v. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR (Pt. 4) 587 and Odjewedje v. Echanopke (1987) 1 NWLR (Pt.52) 633. 

Guided by the principles laid in the cases referred to above, I have no difficulty in coming to the conclusion and agreeing with Court of Appeal that both parties, the res or subject matter and the issue involved or cause of action are the same both in Exhibit ‘C’ which is the previous case, and the present case.

What misled the trial court to arrive at the conclusion that both the parties and the subject-matter in Exhibit ‘c’ are not the same as in the present case is the fact that, in Exhibit C the defendant sued the present plaintiff in his own name.

Since the proceedings in Exhibit ‘C’ was conducted before a Customary Court, in order to find out whether the parties litigated in representative capacities, the court should not confine itself to the form of action, but must read and consider the proceedings as a whole. What matters is the substance and not the form. See Solomon Jonah v. Kojo Owu 3 WACA 170; Osu v. Igiri (1988) 1 NWLR (Pt.69) 221; Chukwunta v. Chukwu & Ors. 14 WACA 341 and Yode Kwao v. Kwasi Coker 1 WACA 162.

P.38

In Exhibit “C” the present defendant as plaintiff for and on behalf of Ighavie lineage of Ugwe family sued the present plaintiff, ostensibly personally, but in actual fact, and from a close consideration of the proceedings, the action was defended in a representative capacity to wit: for himself and on behalf of Akpara family of Ofagbe Village.

The evidence led showed that the land was communally owned by Akpara family and that Egbahe Street runs through it. It was shown through cogent traditional evidence that the said communal land was, by the grace of Egide acquired by his ancestor Akpara by deforestation and first settlement. The building plot involved in Exhibit ‘C’ which is also owned by the Akpara Family was situate within and formed part of the land founded by Akpara at Egbahe Street, Ofagbe, and from the analysis above it is not in doubt that the issues and the subject-matter in Exhibit ‘C’ are the same as in the present case. In order to sue in a representative capacity before a customary court one does not necessarily need a fiat of that court. The land in Exhibit ‘C’ forms part and parcel of land comprised in the present action, as it is a small piece of land within the subject-matter of the present action.

It is for these and the articulated reasoning contained in the judgment of my learned brother, Iguh, JSC that I find myself inclined to dismiss the appeal and affirm the judgment of the Court of Appeal, with N10,000.00 costs to the defendant/respondent.

P.39

The proceedings leading to this appeal were first initiated on the 28th day of July, 1987 in the High Court of Justice of the former Mid-Western State of Nigeria, now the High Court of Justice Delta State of Nigeria, holden at Oleh. In that court, the plaintiff, for himself and on behalf of the Akpara family, claimed against the defendant, for himself and on behalf of the Ighavie family, both of Ofagbe Village in the Isoko Local Government Area of Delta State as follows:-
“1. A declaration of title to all that piece or parcel of land situate in Ofagbe in Isoko Division within Ugheli Judicial Division. The area and extent of the said land is more particularly described and verged pink in the survey plan filed with this amended statement of claim in this suit. Annual rent of the land is assessed at N10.00per annum.
2. N200.00 (Two Hundred Naira) damages for trespass committed by the defendant. his servants or agents who sometime between January, 1976 and February, 1, 1976 or thereabout at Ofagbe Village without the consent of plaintiff broke and entered parts of the said plaintiffs family land not permitted to the defendant or any member of his family and deposited sand thereon and began to build on top of the foundation of the plaintiffs building verged purple in the survey plan, and extended their buildings beyond the limit permitted to them by the plaintiff’s family verged yellow and brown respectively in the survey plan which unlawful extensions are verged blue in the survey plan.
3. An order of forfeiture of the defendant’s right of tenancy in the area verged pink in the survey plan in accordance with Isoko (Ofagbe) customary law of land tenure and or an order of perpetual injunction to restrain the defendant, his servants and agents and all other members of Ighavie family from carrying on any building or other works in the land of the plaintiffs family verged pink in the survey plan or from doing any other acts not being the exercise of the right of ingress or egress on the land or of inhabiting the two houses permitted to them by the plaintiff’s family.

P.40

4. An order of mandatory injunction to remove any structures erected or crops grown on the said plaintiff’s family land outside the portions verged yellow and brown in the plan.
   5. And plaintiff further claims for any other legal or equitable reliefs which the court may consider him entitled in the light of the pleadings and or evidence.”Pleadings were ordered in the suit and we duly settled, filed and exchanged. The defendant, in his statement of defence, not only denied the plaintiff’s claims but counter-claimed against the plaintiff as follows:-
   “(a) Declaration of title to all that piece or parcel of land lying and situate along Egbahe Street in Ofagbe Village in Isoko Local Government Area within the jurisdiction of this Honourable court. The area/extent of the said land is more particularly described in Survey plan No. LSD, 5016 already filed with the statement of defence in the main suit. The annual rent of the land is N100.00 per annum.
   (b) N10,000.00 (Ten thousand Naira) damages for trespass committed by the defendant (sic) herein, his servants and/or agents or workmen, who sometime between February, 1976 and November, 1983 at Ofagbe Village within the jurisdiction of this Honourable court, without the consent, authority/permit of the plaintiff (sic) herein, broke and entered the said land, deposited sand and erected structures thereon.
   (c) An order of perpetual injunction restraining the defendant (sic) his servants, agents or workmen and all other members of Akpara family of Ofagbe Village from entering the said land or part thereof except the portions already granted them or carrying on any building, structure or work on any other part of the said land.”

P.41

The case proceeded to trial and the parties testified on their own behalf and called witnesses.

Both the claim and the counter-claim we brought and defended in representative capacities as expressed in the title of the suit and as averred in the pleadings.

The plaintiff and the defendant are both from Ofagbe Village. The land in dispute is called Eghahe and comprises of the piece or parcel of land through which Egbahe Street in Ofagbe Village runs. It is shown verged pink in the plaintiff’s survey plan, Exhibit A and in the defendant’s plan, Exhibit B. The identity of the said land in dispute is not in doubt as its delineations virtually correspond in both plans.

The respective claims of the parties to their family ownership of the land in dispute are anchored basically on traditional history and various acts of long possession and ownership thereof.

The plaintiff’s traditional history as pleaded and testified to is essentially that his great grand ancestor, Akpara, originally founded and settled on the land in dispute at the instance of one Egide. Following the death of Akpara’s brother called Ozoro at their original habitation under tragic circumstances, the said Akpara migrated to where is now known as Ofagbe Village. There, Egide received him and showed him the land in dispute, then a virgin forest, to clear and settle on. Akpara accepted the offer of Egide, cleared the land now in dispute of its virgin vegetation and under customary law became the owner thereof by first settlement. 

P.42

This land in dispute, now generally referred to as, Egbahe Street, was thus first founded and settled upon by the plaintiff’s ancestor, Akpara. The plaintiff explained how the defendant and members of his family came to live and mix together on the land in dispute with them. He stated that this was through the adulterous union of one of their wives, Omaniyo, with Ighavie, the son of Ugwe, sometimes also spelt as “Uwhe”, who is the ancestor of the defendant’s family. He claimed that all the houses described in his survey plan, Exhibit A, as defendant’s houses were those of the defendant’s family, occupied by them or members of their family as tenants of the plaintiff’s family.

The defendant in narrating his own traditional history over the land in dispute claimed that the said Ugwe, the father of their ancestor, Ighavie, was a hunter who migrated from Irri to found and settle in Ofagbe Village. He testified that his said ancestor, Ugwe, acquired the land in dispute verged pink together with the entire land verged green in the plan, Exhibit B, by first settlement. He deforested and founded the area now known as Egbahe Street which is the land now in dispute together with the rest of the land verged green in Exhibit B. In his occupation of the said land, Ugwe and after him, his heirs and successors, exercised maximum acts of possession and ownership thereon. In one of his hunting expeditions, Ugwe found Akpara, then a young man, in the bush. He took compassion on the said Akpara and admitted him to live with his family at Egbahe. It was the defendant’s case that as time went on, Ugwe secured Udurdhe in marriage for Akpara. This marriage produced three children. Upon the death of Akpara, however, Ugwe remarried Udurdhe who begat Ighavie, the father of Ero whose son is Akwido, the father of the defendant.

P.43

In particular, the defendant specifically pleaded the proceedings and judgment in Oweh Customary Court in suit No. OCC/165/71, Exhibit C, and the appeal decision therefrom to the Oleh Magistrate’s Court, Exhibit D. In that suit, the present defendant, as plaintiff, sued the plaintiff herein for declaration of title, damages for trespass and perpetual injunction in respect of a building plot of land situate in Egbahe Street, Ofagbe within the land now in dispute and obtained judgment against the said plaintiff. The present plaintiffs appeals against this judgment both to the Oleh Magistrate’s Court and the High Court, Ugheli were dismissed. The defendant herein therefore pleaded and relied on estoppel per rem judicatam and issue estoppel in his defence to the plaintiff’s present action.

The learned trial Judge after a review of the evidence rejected the defendant’s plea of res judicata and issue estoppel. He was of the view that the traditional history of the plaintiff in respect of the land in dispute was credible and had been established. He disbelieved the traditional history in respect of the land in dispute as presented by the defendant and entered judgment for the plaintiff for title to the land in dispute, damages for trespass and perpetual injunction restraining the defendant, his servants, agents and members of the Ighavie family from carrying on any constructions on the land in dispute verged pink in Exhibit A without the consent of the plaintiff and members of his Akpara family excepting the portions verged yellow and brown in the said Exhibit A. The plaintiff’s claim for forfeiture was dismissed “in view of the long occupation of the land in dispute by the defendant’s family”. So, too, the plaintiff’s claim for mandatory injunction for the removal of any structures erected on the land by members of the defendant’s family was dismissed “as this would cause hardship to the defendant and members of his family who built their houses on the land”. The defendant’s counter-claim was dismissed.

P.44

Being dissatisfied with this judgment of the trial court, the defendant lodged an appeal to the Court of Appeal, Benin Division, which court in a unanimous decision on the 14th day of June, 1991, held that the defendant had successfully established his pleas of res judicata and issue estoppel. That court accordingly allowed the defendant’s appeal, dismissed the plaintiff’s claims and entered judgment for the defendant in terms of his counter-claim. Aggrieved by this decision of the Court of Appeal, the plaintiff has now appealed to this court.
Four grounds of appeal were filed by the plaintiff against this decision of the Court of Appeal. I find it unnecessary to reproduce them in this judgment. It suffices to state that the parties pursuant to the rules of this court filed and exchanged their briefs of argument.

The two issues identified on behalf of the plaintiff/appellant which this court is called upon to determine are as follows:-
“1. Whether the plea of estoppel per rem judicatam (and we would add) and issue estoppel avail the respondent, and ,if they do, whether the respondent is entitled to judgment in his counter-claim?
2. If the plea of estoppel per rem judicatam and issue estoppel are unavailable to the respondent, whether the appellant is entitled to judgment (and we would add) as founded by the trial court?”
The defendant/respondent, for his own part, similarly set out two issues for the determination of this appeal.

These are:-

P.45

“1. Whether the Court of Appeal was right when it held that both cause of action estoppel and issue estoppel applied in favour of the defendant/counter-claimant.
2. Whether the Court of Appeal ought to have considered the other grounds of appeal filed by the defendant/respondent in his appeal to that court and the consequences of its failure to consider them.
I think the main questions for resolution in this appeal are:-
“1. Whether the Court of Appeal was right when it held that both plea of estoppel per rem judicatam and issue estoppel availed the defendant in these proceedings and, if so, whether it rightly entered judgment for the defendant on his counter-claim.
2. Whether the Court of Appeal was right by dismissing the plaintiff’s claims.”

At the oral hearing of the appeal, learned counsel for the appellant, Mr. Ogunniyi adopted his brief of argument. Relying on the decision of this court in Ezeanya v. Okeke (1995) 4 NWLR (Pt.388) 142 at 148, learned counsel submitted with considerable force that the defendant’s plea of res judicata and issue estoppel must fail as Exhibit C, the case before the Customary Court, was defended in a personal capacity and not in a representative capacity as in the present action. He contended that the issue in both actions is not the same as the land in dispute in the present action is larger than the land involved in Exhibit C. He therefore urged the court to allow the appeal set aside the judgment and orders of the court below and restore the decision of the trial court.

From his own part, learned leading counsel for the defendant, O. M. Odje Esq., similarly adopted the respondent’s brief of argument and submitted with equal force that Exhibit C constituted estoppel per rem judicatam and issue estoppel G in the present case.

P.46

He stressed, relying on the decision of this court in Ekpoke v. Osilo (1978) 6-7 SC 187 that to determine the applicability of res judicata where the judgment relied upon is that of a Native or Customary Court, the real facts directly in issue on the action and determined by the Native or Customary court judgment must be ascertained from the entire record of proceedings in such an inferior court. He dealt extensively with the questions of the parties, the subject-matter and the issues in both the Customary Court suit, Exhibit C, and the present action and submitted that they are all the same. He stressed, in particular, that the Customary Court case, Exhibit C, was fought by the defendant therein on behalf of the Akpara family even though this was not so expressed in the writ of summons.  In this connection, he pointed out that it is not the form but the substance of a Customary Court case that matters in law. In his view, the plaintiff herein is by  virtue of Exhibit C estopped from bringing the present action against the defendant. Learned counsel contended that cause of action estoppel and/or estoppel by conduct applied to estop the plaintiff from relitigating the area of land put in issue by the parties in the previous Customary Court judgment, Exhibit C. He further submitted that issue estoppel equally applied to estop the plaintiff from relying on the same issues already judicially decided against him by a court of competent jurisdiction in Exhibits C and D. One such issue is the acquisition of the land in dispute by first settlement by the plaintiffs ancestor, Akpara. He therefore urged the court to dismiss this appeal.

The two issues for consideration in this appeal seem to me inter-related and it is convenient to treat them together.

P.47

It is an application of the rule of public policy and in the interest of the common good that there should be an end to litigation. This is covered by the well established doctrine, interest rei publicae ut sit finis litium. See John Omokhafe v. Esekhomo (1993) 8 NWLR (Pt.309) 58. In this regard it is the rule of public policy that no one shall be vexed twice on the same ground or for one and the same cause of action and on the same issues. See Adomba v. Odiese (1990) 1 NWLR (pt. 125) 165 at 178. Where, therefore, a cause of action in a present suit has been determined in a previous suit between the same parties and on the same issues, the parties are estoppel per rem judicatam from bringing a fresh action before any court on the same cause and on the same issue pronounced upon by the court in the previous action. See Oyelakin Balogun v. Adedosu Adejoki (1995) 2 NWLR (pt 376) 131.

There is of course, cause of action “estoppel “as against issue estoppel“. The former effectively precludes a party to an action his agents and privies from disputing, as against the other party, in any subsequent suit, matters which had been adjudicated upon previously by a court of competent jurisdiction between him and his adversary involving the same issues. See too Udeze v. Chidebe (1990) 1NWLR (Pt.125) 141. With regard to issue estoppel, it is recognized that within a single cause of action. several issues may come into question which are necessary for the determination of the whole case. As a general rule, once or more of any such issues have been distinctly raised in a cause of action and determined between the same parties in a court of competent jurisdiction, neither party. his servant, agent or privy is allowed tore-open or relitigate any of such issues allover again in another action between the same parties or their agents or privies. See Lawal v. Yakubu Dawodu (1972) 1 All NLR (Pt.2) 270 at 272; 0lu Ezeani v.Nkali Onwordi and others (1986) 4 NWLR (Pt.33) 27 at 42; Samuel Fadiora and Another v. Festus Gbadebo and Another (1978) 3 SC 219 at 228-229 etc. Both estoppel have been raised in this appeal.

P.48

I think it is of primary importance to point out at this stage that the learned trial Judge for reasons not apparent from the record failed to give any consideration whatsoever to the relevant question of issue estoppel which was so forcefully raised in the pleadings and argued before him by the parties. I will, however, first turn to the question whether Exhibit C, in law, constitutes or is otherwise available to the defendant to sustain the plea of estoppel per rem judicatam sufficient enough to prevent the plaintiff from re-litigating title to the land in dispute.

In this regard, the learned trial Judge after setting out the claims in Exhibit and those in the defendant’s counter-claim in the present action simply concluded as follows:
“It is quite clear from above that the area claimed by the defendant was a building plot unlike the instant case where the defendant in his counter-claim claimed a piece or parcel of land lying and situate along Egbahe Street shown in Exhibit “B”. In effect the area he claimed in Exhibit “B” is by far larger than the area he claimed in Exhibit “C” and the subject matter cannot therefore be the same as Exhibit “C” does not cover Exhibit “B” and the evidence therein. It is also my view that neither the judgment in Exhibits “C” and “D” nor the evidence given therein could create estoppel per rem judicatam as between the plaintiff and the defendant since the evidence, the issues and the reasons for the decision will be different. For a judgment to create estoppel, between the parties, the estoppel must be mutual as between the parties”

P.49

It does seem to me that the only question that the trial court would appear to have considered on this plea of estoppel per rem judicatam is that of the res or the subject-matter of the litigation. In this regard, it held this was not the same in both cases as the area of land claimed in the present case is larger than the area claimed in Exhibit C. On this ground alone, the trial court came to the conclusion that the judgment in the proceedings, Exhibit C, could not create estoppel per rem judicatam between the plaintiff and the defendant “since the evidence, the issue and the reasons for the decision will be different”. I will deal with this aspect of the case later in this judgment. It suffices for the moment to state that the learned trial Judge totally failed to consider the vital two questions whether or not the parties or their privies and the issues in dispute in both Exhibit C and the present action were the same.

The court below, for its own part, meticulously considered the questions of both estoppel per rem judicatam and issue estoppel that were raised in the case. It considered at great length the questions of whether the parties, the issues and the subject-matter in the two proceedings were the same in both Exhibit C and the present action and came to the conclusion that they were. The court, per the leading judgment of Edozie, JCA, to which Musdapher JCA and Ejiwunmi, JCA, as he then was, concurred observed:-
In the case in hand, it is clear that the parties in the previous judgment, Exhibit ‘C’ are the same as the parties superficially the defendant in Exhibit ‘C’ was sued personally although he in the instant case sued in a representative capacity for himself and on behalf of Akpara family of Ofagbe Village. But it is trite that in dealing with Customary Court cases, what matters is the substance and not the form of the claim……………..Learned counsel for the appellant submitted, and this was not disputed by the opposing counsel that although the respondent in the present case was in the previous proceeding sued personally, he nevertheless, defended the action in a representative capacity for the Akpara family ……………………. I am satisfied that the parties to the previous proceeding are the same as the parties to the present case.”

P.50

On the question of the issues in both cases, the Court of Appeal stated:-
“The principal relief sought in the two proceedings, to wit, title to land, are also the same, The issue in the two suits are therefore the same,”

Turning to the res or the subject-matter in both suits, the Court of Appeal observed:-
“With respect to the subject-matter, it is common ground that the land in dispute in the former proceedings is smaller than the land in the present case, In Exhibit ‘C’ the claim was for a declaration of title in respect of a building plot which according to Oweh Customary Court Judges who inspected it measured 48ft by 30ft. The area in dispute in the present case is not specified but from the survey plans Exhibit ‘A’ and ‘B’ it is a much larger area of land, Learned counsel for both parties appear to be in agreement, and the lower court was of the same view, that the land in dispute, the subject-matter in Exhibits ‘C’ and ‘D’ is part of the land in dispute in the instant case but they have agreed to disagree on the effect of the previous judgment on the case under consideration,”………………….Now, reverting, to the present appeal and applying the principle distilled from the Amos Ogbesusi Aro v, Salami Fabolude (supra) to the present case, it seems clear that the learned trial Judge was in error in entering judgment in favour of the respondent in respect of the entire land verged pink in the respondent’s Survey plan Exhibit’ A’ in the face of the judgment of the Oweh Customary Court, Exhibit ‘C’ adjudging the appellant owner of a plot of land forming part of the large area verged pink in Exhibit ‘A’, At the worst, the lower court should have given the respondent judgment for the area verged pink less the area the subject-matter in Exhibit ‘C’ and if this areas is not identifiable because no plan was used, to non-suit the appellant so as to give him the opportunity to establish that portion in subsequent action”,

P.51

The first observation I desire to make is that the question whether or not Exhibit C operates as estoppel per rem judicatam in the present action is entirely a matter of law as applied to established facts.

In the second place, it is long established by a long line of authorities that for the plea of estoppel per rem judicatam to succeed, the party relying on it must established that:-
(i) The parties or their privies are the same, namely, that the parties involved in both the previous and the present proceedings are the same.
(ii) The claim or the issue in dispute in both proceedings are the same,
(iii) The res or the subject-matter of the litigation in the two cases are the same.
(iv) The decision relied upon to establish the plea of estoppel per rem judicatam must be valid, subsisting and final and
(v) The court that gave the previous decision relied upon to sustain the plea must be a court of competent jurisdiction.
Unless the above pre-conditions are established, the plea of estoppel per rem judicatam cannot be sustained, See Oke v, Atoloye (1985) 1 NWLR (Pt. 15) 241 at 260; Yoye v, Olabode and others (1974) 1 All NLR (pt.2) 118 at 122; Fadiora v. Gbadebo (1978) 3 SC 219 at 229; Richard Ezeanya v. Gabriel Okeke (1995) 4 NWLR (Pt.388) 142 etc.

P.52

But once they are established, such previous judgment is absolutely conclusive and estops the parties, their agents and privies from making any claim contrary to the decision in such previous judgment.

In the third place, it cannot be over-emphasised that in the determination of whether the plea of estoppel per rem judicatam or whether the parties, the issues and the subject-matter in both the previous and the present actions are the same, the court is permitted to study the pleadings, the proceedings and the judgment in the previous suit. The court may also examine the reasons for the judgment and other relevant facts to discover what infact was in issue in the previous proceeding. See Fadiora v. Gbadebo (supra). It may therefore be said that it is a question of fact Whether the parties and their privies, the facts in issue and the subject-matter of the two cases are the same.

Before, however, I proceed to consider whether the parties, the issues and the subject-matter in both the previous and the present cases are the same, it is of vital importance to recognise the fact that Exhibit C, the previous suit relied on for the plea of res judicatam in the present action is a Customary Court suit. In other words, it is the record of proceedings and decision of an inferior court or tribunal.

In this regard, the law is well settled that the form of an action in a Customary Court or tribunal and, indeed, in other inferior courts of equivalent jurisdiction must not be stressed where the issue involved is clear and decisions on such should not be disturbed without very clear proof that they are wrong.

P.53

It is the substance of such a claim that is, in law, the determinant factor. See Kwamin Akin  v. Essie Egymah (1936) 2 WACA 65; Solomon Johan v. Kojo Owu (1937) 3 WACA 170 at 171. Proceedings in a Customary Court have to be carefully scrutinised to ascertain the actual subject-matter of the case, the real issues therein and who the correct parties are. An action instituted in a Customary Court might on the face of the claim appear to be a purely personal action, particularly, if it is not indicated exfacie that the same is a representative action when, in point of fact such suit is, to all intent and purposes, being fought by the parties in representative capacities. In dealing, therefore, with proceedings from Native or Customary Courts, appellate courts must not be unduly too strict with regard to matters of procedure as the whole object of such trials is that the real dispute between the parties should be adjudicated upon without unnecessary resort to form and/or undue technicalities. See Olujinle v. Adeagbo (1988) 2 NWLR (Pt.75) 238 at 251; Chief Awara Osu v. lbor Ogiri (1988) 1 NWLR (Pt.69) 221; Nwosu v. Udeaja (1990) 1 NWLR (Pt.125) 188 etc.

So, in Chukwunta v. Chukwu and others (1953) 14 WACA 341 the issue that arose was whether the proceedings and judgment in the Lengwe Native Court suit No. 168 of 1945, Exhibit 3 and 4 operated as estoppel per rem judicatam. The contention, as in the present case, was that those proceedings could not create an estoppel per rem judicatam as it was not expressed on the face of the claim and/or writ of summons that the suit was conducted by the parties in their representative capacities. The submission was that the Native Court case revealed exfacie that the parties fought their case in their personal capacities as against the subsequent Supreme Court case, on appeal, in which the parties expressly fought their battle in a representative capacity.

P.54

It was urged on the court to hold that the plea of res judicata was not in the circumstances available to the parties in the Supreme Court cases. In dismissing this contention, the West African Court of Appeal observed thus:-
“The learned counsel further submitted that Exhibit 4 could not create an estoppel as the appellant sued the respondent in his personal capacity and that he also was sued in his personal capacity.
There is no doubt that the capacities of the parties were not shown on the writ of summons, but a perusal of the evidence led discloses that the appellant sued as representative of his people, the Okpome Lengwe people, and that the first respondent was sued as a representative of the people of Amanamoke.
In a Native Court case, the form of the action is not to be stressed so long as the issue involved is clear.
It is clear from the record of appeal that the appellant, in a representative capacity, had sued the respondents in all the cases in the Native Court in a representative capacity, and that there is no substance in counsel’s submission.” (Italics supplied for emphasis).
So, too, in Ikpang v. Edoho (1978) NSCC 423. Aniagolu, JSC in endorsing the above principles of law governing the determination of the real parties, the issues and the subject-matter of a Native Court proceeding put the matter as follows:-
“Generally great latitude must be given to, and abroad interpretation placed upon Native Court cases, and one may add, Customary Court cases – so that the entire proceedings, the evidence of the parties and the judgment must be examined in order to determine what the Native or Customary Court case was all about (Ajayi v.Aina (1952) 16 NLR 67).

The whole conception and result of the proceedings will show what the parties were fighting for, the matters upon which issues were joined even if technically framed in an inappropriate language from the stand point of legal technocrats, and the decision of the Native Customary Court on these issues.”

P.55

In Ekpoke v. Usilo (1978) 6-7 SC 187, Obaseki, JSC also stated:-
“To determine a question of res judicata where the judgment relied upon is that of a Native Court, a court in which no pleadings are filed, the fact directly in issue in the action and determined by that judgment are to be discovered from the substance as disclosed in the record of proceedings.”

With the above principles of law in mind, I will now proceed to determine whether or not the parties, the issues and the subject-matter in Exhibit C are the same as those in the present case. I will deal with the question of parties first.

It is now well settled that the term parties: includes not only those named on the record of proceedings but also those who had direct interest in the subject matter of the dispute and had an opportunity to attend the proceedings and to join as a party in the suit but chose not to do so but were content to stand-by and see the battle in which their interest is directly in issue fought by somebody else or let witnesses testify as to their title to or interest in the subject-matter of the action. So, in Odua Esiaka and others v. Vincent Obiasogwu and others (1952) 14 WACA 178 at 180, the West African Court of Appeal held that by abandoning the actions in the Native Court, the plaintiffs people assented to the Inquiry and elected to be  represented by their pledge, the plaintiff in that suit and that they took part in the Inquiry; and that the settlement of the boundary made in the Inquiry was therefore conclusive and binding on them whether as a party to the Inquiry – Which they were – or (if they were not a party) because they stood-by and allowed their pledge to fight the battle about their title.

P.56

Coussey, J. A. delivering the judgment of the West African Court of Appeal in that case propounded this proposition of law as follows:-
“The learned trial Judge found that the title of Chief Onyeama was identical with the plaintiff’s title. They were content to let Chief Onyeama fight their battle for them, but supporting him by deputizing representatives to testify as to their title. They were parties in fact and the settlement binds them as they are presumed to have authorised their pledgee, Onyeama, to conduct the proceedings with their authority and consent.
If, then, they were not parties, what was said by Cockburn, C.J., in Roden v. London Small Arms Co. 46 L. J; Q. B. D. 213 is in point, namely, the doctrine is well known and recognised in the courts of law that if you stand-by and allowed another to do an act in a o particular way which you could have prevented at the time, you must be held bound by the act so done with your acquiescence. The plaintiff’s knew perfectly well that any order in the Inquiry affecting Onyeama’s title would equally affect theirs as the same right and title was substantially in issue. Therefore they cannot now be heard to complain that they were not parties – Re Lart, Wilkinson v. Blades (1896) 2 Ch. 788 and Farquharson v. Seton 5 Russ 45. Another way to look at the matter is to ask; if Onyeama had succeeded, who would have taken the benefit of the Beaumont decision? Clearly it would have been the plaintiffs”

I think it can be said that the principle of law is now well settled that if a person was content to stand-by and see his battle fought by some one else in the same interest instead of applying to be joined as defendant in that case, he is bound by the result in that case and estopped from reopening the issue determined in that case. He should not be allowed to reopen the case.

P.57

Attention may also be drawn to the West African Court of Appeal decision in Isaac Marbelll v. Richard Akwei (1952) WACA 143. In that case, the appellant was vitally interested in a previous case between the respondent and a person to whom he, the appellant, had conveyed the property. The validity of the title he had conveyed was clearly in issue in that case. Instead of applying to be joined as a defendant in that case, the appellant was content so stand-by and see his battle fought by the person he had conveyed the property to in the same interest. It was held that the appellant was bound by the result in that case and that he was estopped from reopening the issue determined in that case. In the course of its judgment, the West African Court of Appeal commented:-
“It is true, as contended by counsel for the appellant, that in Yode Kwao v Kwasi Coker 1 WACA 162 at 168 the court was dealing with the question whether a judgment against one member of a class where the title and interest of all the members was identical, bound the other members of the class. The principles applied by the court in that case seem to us equally applicable to the present case ………………… For the reasons we have given we are of the opinion that the learned trial Judge was right in holding that the appellant was estopped from litigating the issue which was determined in the case between the respondent and Faris ………….”

I should, perhaps, for the sake of completeness, state that in the said case of Yode Kwao v. Kwasi Coker (supra) the West African Court of Appeal, affirming the decision of the court below that the title of the plaintiff was identical with that of and that as the said had stood-by and acquiesced in the title to the land being determined in favour of the defendant in the Divisional Court, he was estopped from asserting title to the said land, that court at page 18 of the report went on:-

P.58

“It is quite true that the piece coloured in brown was the scene of the actual trespass, but the land claimed and found by the judgment to be the property of Kwasi Coker (the present defendant) was the whole blue piece, and the true test is that Odonkor Nmate is not precluded by the judgment only from going on to the piece of Land delineated in brown, but is estopped as regards the whole parcel coloured blue” (Italics supplied)

It is against the background of the above well established state of the law that I must now consider whether the parties in Exhibit C are the same as those in the present proceedings.

It is clear from the records, and this is not disputed, that the actual persons named as parties, that is to say, named as the plaintiff and defendant in the previous case, Exhibit C, are exactly the same persons named as parties in the present action. In the present suit, both the claim and the counter-claim were prosecuted and defended by the said parties in a representative capacity for themselves and on behalf of their respective Akpara and Ighavie lineage of Ugwe families, Ofagbe. This, exfacie, is unlike the proceedings in Exhibit C. In Exhibit C, the present defendant, as plaintiff, for and on behalf of the Ighavie lineage of Ugwe family sued the present plaintiff, ostensibly personally, in that it was not expressed on the face of the writ of summons that the said defendant in that case, was sued in a representative capacity.

P.59

In actual fact, however, it seems clear from a close perusal of the record of proceedings, Exhibit C, that the said defendant therein defended the suit in a representative capacity for himself and on behalf of the Akpara family of Ofagbe Village in which capacity he prosecuted the present action. The length and breath of his evidence therein was that the Akpara family to which he belonged were the communal owners of the piece or parcel of land through which Egbahe Street in Ofagbe Village runs. The land, by the grace of Egide, was acquired by his ancestor, Akpara by deforestation and first settlement. The building plot of land in dispute which is also owned by his said Akpara family was situate within and formed part of the said parcel of land founded by Akpara at Egbahe Street, Ofagbe.

It cannot be over-emphasised that being proceedings and judgment of a Native Court, both courts below were duly bound to be concerned not with the form of Exhibit H but with its substance in the determination of whether the parties, the issues and the subject-matter in the said Exhibit C are the same as in the present suit.

There can be no doubt that if Exhibit C was fought in a superior court of record and the parties were represented by counsel, the defendant would have been required to seek the leave of court to defend the action, I think he did, in a representative capacity. Exhibit C, however, is the record of proceedings and judgment of a Customary Court. It is my view that once it is clear from the records that the said defendant therein in fact defended the action for himself and on behalf of his Apkara family, no useful purpose may be served in resorting to any technicalities of the law or the definition of the word “representative” in the legal sense before it may be endorsed that the action was defended in a representative capacity.

P.60

I must in the above regard enclose the decision in Apata v. Ogbeki and Others (1955/56) (Pt.3) WRNLR 73 to the effect that no order to sue or to be sued in a representative capacity is either required or necessary in respect of a case instituted in a Native Court. Nor can I subscribe to the view that it is strictly necessary for a defendant who is sued in a Native or Customary Court to tender before the court an authority to defend the suit in a representative capacity from the class of persons he seeks to represent if it is clear from his entire case that he is defending the action in a representative capacity and that those he represents support or attend court with him or indeed testify in respect of their interest in the case. Such technical procedural requirement may be clearly necessary in the superior courts of record.  I find it difficult to accept that it is applicable in the Native or Customary Courts where, what must count, is what the real substance of matters in issue is. I will now examine Exhibit C further to determine whether or not the defendant therein defended the action in a representative capacity.

In the first place the defendant, that is to say, the plaintiff in the present case, in his evidence in the Customary Court proceedings, Exhibit C, at page 190 of the record testified as follows:-
“My name is Olowo Okokuje I am a direct descendant of Akpara. Akpara (male) begat Efoge (male), Efoge begat Akpan (male), Akpan begat Obowo (male), while Obowo begat Igbare (male) who begat Okokuje, my father”
A little later in his evidence, the defendant at page 193 of the record stated:”
The plot in dispute is owned by Akpara, my great grandfather. Ugwe who is the ancestor of the plaintiff had a compound at the extreme end of Egbahe Street. My Akpara family has a common boundary with Ese family in Egbahe Street. My family also has boundaries with Osifo and Egidefamilies in the plot in dispute.” Italicis supplied)

P.61

He went on at the same page 193:-
“The allegation of the plaintiff and his first witness that my great grandfather. Akpara was picked by his grandfather. Ugwe from the bush is most, untrue” (Italicis supplied)
He continued at page 194:-
“As the land which was given by Egide to Akpara to occupy was a bit choked up, and it was later found to have accommodated Akpara, then the place was called Ogbarai (meaning the people have been accommodated). It is this name Ogbarai that was later changed to “Egbahe” for the street. My great grandfather Akpara being the owner and first man to found Egbahe street made a juju by name “Egbo” with which he used to fight in the inter-tribal and civil wars ” (ltalicis supplied.) 
Under cross-examination by the plaintiff in Exhibit C, the defendant stated:”
After a street had been founded by a man, his own children can later spread over it. I am prepared to swear with you that Akpara was the first to stay in Egbahe Street before Ugwe. I am also prepared to swear with you that Akpara was never picked from the bush by Ugwe ”  (ltalicis supplied.)

There was next the evidence of DW2 in Exhibit C, Akokimoni Ogbaide, who also is a member of the Akpara family. Said he:-
“Akpara is my great grand father ”
Earlier on in his evidence under cross-examination by the plaintiff therein, the witness had stated:-
“It is true that your ancestor Ero had his house built on the land in which the plot in dispute situates” (ltalicising supplied.)

P.62

Most importantly, the witness stressed:-
“The plot in dispute, including the whole piece of land occupied by Akpara family in Egbade street is not exclusively shared to any individual member of Akpara family ” (ltalicis supplied.)
It is thus clear that no portion of the plot of land in dispute in Exhibit C, including the entire land of Apkara family in Egbahe Street which was allegedly acquired by deforestation and first settlement belonged exclusively to any single member of that family. In other words, the land in dispute in Exhibit C was the communal land and of the entire members of the Apkara family and was not the personal property of the defendant. I will return to this aspect of the appeal later in this judgment.

It is sufficient for now to point out that it is not in dispute that the case of the plaintiff in Exhibit C was admittedly for himself and on behalf of the Igbavie lineage of Ugwe family of Ofagbe. It is also plain to me from the entire evidence of the defendant and all his witnesses in Exhibit C that the case of the defence was presented for and on behalf of members of the Akpara family of Ofagbe. This is evident from the testimony of the defendant and the defence witnesses in Exhibit C. In particular, it was the defence case that their family had boundaries with the Osifo and Egide families in the building plot in dispute. It is clear from the evidence of the defendant therein and that of his witnesses that the land they were fighting for in Exhibit C was not just the building plot of land which was the immediate cause of the dispute. The land the defence put in issue was the entire land they claimed was founded by Akpara at Egbahe Street which, as per their plan, Exhibit A in the present case has its eastern and western boundaries with the land of the said Osifo and Egide families.

P.63

This now brings me to the boundaries of the land put in issue in Exhibit C by the parties and within which the building plot in dispute is situated. I will consider the evidence of the defence in the case first.

On the evidence of the defendant in Exhibit C, the land of his Apkara family had common boundaries with the Osifo, Ese and Egide families. His evidence was corroborated by that of DW5, Abel Omoleh, who was also from Akpara family. He testified that the land in dispute in Exhibit C belonged to his family and not to Ugwe family. He confirmed that his family land had common boundary with the land of Egide family. Said he:-
” my father and the father of the defendant were half brothers in Akpara family in Ofagbe too. The families of Akpara and Egide have common boundary…………………”
Under cross-examination DW5 said:-
“I heard of man called Ugwe in Egbahe Street. I am not aware that it was Ugwe who brought Akpara from the bush. It is false that Ugwe was the founder of Egbahe street. ”

There is next the evidence of DW1, Oghenejabor Oghelio, who came from Osifo family. He said:-
“My family and the said family of the defendant (i.e Akpara family) have pieces of land which have common boundary with each other at Egbahe Street in Ofagbe”.
DW3, Eleh Akero, another boundary man from Ese family testified thus:-
“Akpara first came to settle in Egbahe Street. The next person to come to settle in Egbahe Street was Ese and they both have common boundary “.
DW.4, Patrick Onojererame, from Osifo family also testified as to the common boundary between Osifo and Akpara, families at Egbahe Street. He said:- ” Osifo and Akpara came to have a common boundary at Uruonwa and Eghahe Street”

P.64

The vital point worthy of note in the evidence of the defendant and the above witnesses in Exhibit C is the fact that they were not called to establish the ownership and boundaries of the building plot which was the immediate cause of the dispute between the parties. Their evidence essentially was the establishment of the extent and boundaries of the land said to have been acquired by Akpara at Egbahe Street, Ofagbe by first settlement.

A close examination of their evidence clearly shows that the land put in issue in Exhibit C was precisely the land said to have been founded by Akpara by deforestation and first settlement. It is exactly that same land which is verged pink in Exhibit A that is now in dispute in the present action. This is evident notwithstanding the fact that the immediate course of action and the area of trespass in Exhibit C was described as the building plot shown verged purple in the present plaintiffs plan, Exhibits A and verged yellow in the present defendant’s plan Exhibit B.

In Exhibit A, the boundaries of the land in dispute verged pink and said to constitute the land acquired by Akpara are with the Osifo, the Egide and the Ese families as testified to by the defendant and his witnesses in Exhibit C. The fourth and last boundary of that land is the Ashaka/Kwale – Ivrogbo Road. That road is clearly shown in both Exhibit A and B in the present proceedings.

The above boundaries, without doubt, also tally with the land claimed by the present defendant’s family as per their plan Exhibit B except that they additionally claimed the land south west of the land in dispute up to the boundary with the Egide family.

P.65

It is plain to me that the land in dispute in both plans and therein verged pink essentially correspond. In my view, the land in dispute in the present case is the land put in issue by the parties in Exhibit C. I will however show later that the final result I intend to reach in this judgment remains the same whether or not the land put in issue in Exhibit C is exactly the same land as the one now in dispute in view of the agreement between the parties that the land in dispute in Exhibit C forms part and parcel of the land in dispute in the present action.

Returning once more to the issue of the capacity Exhibit C was conducted, I have already stated that it was fought in representative capacities by both parties. Indeed the Oweh Customary Court had no difficulty and was under no illusion that the case was defended by the defendant therein in a representative capacity for and on behalf of the Akpara family. Accordingly, it did not find title established against the defendant therein personally. It rather found title established against the defendant and members of the Akpara family. It decreed:-
“After carefully considering the foregoing points, we conclude that the plaintiff and the Ighavie lineage of Ugwe family have title to the plot in dispute, and that the defendant and the Akpara family have no title to it” (Italicis supplied.)

Appeals both to the Magistrate Court, Oleh and the High Court, Ugheli, against this decision of the Oweh Customary Court were dismissed. I think it is now too late in the day to launch an attack against this judgment of the Oweh Customary Court, twenty eight years after its delivery. In my judgment, the court below was right when it held that the parties in Exhibit C are the same as in the present suit.

P.66

In rounding up the question of whether or not the Akpara family are parties to Exhibit C, I have already pointed out that the term “parties” includes not only those named on the record of proceedings but also those who had definite interest in the subject-matter of the suit and had an opportunity to attend the proceedings and to join as parties therein but did not do so but chose to stand-by and see the battle in which their interest is directly in issue fought by some body else or let witnesses testify as to their interest in the subject-matter of the dispute. See Esiaka and others v. Obiasogwu and others (supra) I have also held that the defendant in Exhibit C defended the action on behalf of the Akpara family and that members of that family not only attended court at the hearing but testified for the defendant therein in the assertion and protection of their interest. I think the fact that it was not expressed in the writ of summons that the defendant was sued in a representative capacity when, in fact, the Akpara family fully supported him at the trial, testified as to their title to the land and defended their communal interest over the same cannot be any matter of great moment. The defendant’s Akpara family will nonetheless be bound by the decision of the Customary Court in that suit. See too Chukwunta v. Chukwu and others and Isaac Marbell v. Richard Akwei (supra).

Put differently, the question may be asked whether, in all the circumstances of Exhibit C, the Akpara family, after they had stood-by to watch their case being fought by the defendant in an alleged personal capacity, and they actively participated at the trial in defence of their communal title to the land could come now to deny that they are bound by the decision. With the greatest respect, I think not.

P.67

In my view, the defendant’s family is squarely caught by the doctrine of estoppel by conduct and may not now re-litigate the subject-matter or the issue of title to the land that was put in issue by the parties in Exhibit C. They must, in the circumstances of the case be bound by the decision of the Oweh Customary Court in Exhibit C.

In Ojiako v. Ogueze (1962) 1 SCNLR 112;(1962) 1 All NLR 58, title to land was the subject-matter of an earlier action in a Native Court by one Osakwe against some defendants personally. The Native Court, as in Exhibit C, seemed to have dealt with the matter as if both the plaintiff and the defendants before it had sued and been sued as representative of their respective communities, since, again as in Exhibit C, it granted a declaration to the plaintiff to the effect that the land in dispute was “for him and his family”. No plan of the land was tendered in evidence in the Native Court. It was held by this court that the Native Court proceedings were representative proceedings since that court regarded the plaintiff as suing on behalf of his family and gave judgment to that effect, and, no doubt, meant its judgment to affect the family of the defendants. It was further held that the proceedings then appealed against and those heard in the native court were proceedings between the same parties. Brett, F. J; delivering the judgment of this court in the appeal observed:-
“Mr. Sowemimo’s second submission is that even if the judgment in suit 269/52 is a valid and subsisting one, it is not binding in the present case since the present case is a representative action on both sides whereas suit 269/52 was on the face of it a suit brought by one Chikwube Osakwe of Ifite Okija personally against the first three appellants in the present case personally. As to that, the Native Court evidently regarded Chikwube Osakwe as suing on behalf of his family, since its order was that the land was for him and his family.

P.68

I cannot recall a case in which it has been suggested that rural land in this part of Eastern Nigeria was anything but communally owned and I have not the least doubt that it was well understood by the defendants and by the court in suit 269/52 that the defendants were sued as representing their family. The submission was made for the first time in this court and on the evidence it cannot succeed, since if there is not an estoppel per rem judicatam against the people of Umuezeana Okija, there is an estoppel by standing- by”

The facts of the above case are in many respects on all fours with those of the present case. Exhibit C was brought by the plaintiff in that case for and on behalf of his family. On the face of the claim, it appeared as if it was brought against the defendant personally in the Customary Court. The Customary Court was however in no doubt that both parties were prosecuting their cases as representatives of their family. It granted a declaration to the plaintiff and his family and held that the defendant and his family had no title to the land in dispute. At the risk of repetition, the Customary Court held:-
“After carefully considering the foregoing points, we conclude that the plaintiff and the Ighavie lineage of Ugwefamily have title to the plot in dispute, and that the defendant and the Akpara family have no title to it.” (Italic is supplied)
In my view, the present proceedings and those of Exhibit C in the Customary Court are proceedings between the same parties thus warranting the operation of estoppel per rem judicatam if the res and issues in both cases are the same.

I should perhaps add that even if estoppel per rem judicatam is not available to the defendant in this case, and I do not so hold, there is estoppel by standing- by which must operate against the plaintiff and his Akpara family.

P.69

But as I have observed, members of the Akpara family had the same interest with he defendant in Exhibit C. They ranged themselves on the same sides as the defendant in Exhibit C but did not bother to apply to be joined as parties. They were content to let the defendant fight their battle for them but supported him by testifying as to their title to the land in dispute. If the defendant in Exhibit C had won, they would naturally have reaped the fruit of victory. I think they should be prepared to fall with him and take the consequences now that their champion lost the battle.

My above conclusion would appear to be fully supported by what I may, with profound respect, describe as a most powerful statement of the law by Lord Denning in Nana Ofori Atta II v. Nana Abu Bonsra II (1958) A.C 95 at 103. Delivering the judgment of Her Majesty’s Privy Council, the noble Lord commented as follows:
“It seems to be the recognised thing in this part of West Africa for all persons with the same interest in a land dispute to range themselves on one side or the other. Sometimes they apply to be joined as parties. On other occasions, they regard the named party as their champion and support him by giving evidence. If he wins, they reap the fruit of victory. If he fails, they fall with him and must take the consequences.”
I think the above statement of the law is with respect, sound that I do not hesitate to endorse the same as well founded.

I will now make one final point on the issue of sameness of parties in the previous and present proceedings. It will be necessary to turn to the pleadings filed by the parties.

P.70

Paragraphs 31-33, 35 and 36 of the averments in support of the defendant’s counter-claim in these proceedings are as follows:-
“31. Plaintiff herein avers that the dispute between the parties herein did not commence in this Honourable court. Indeed it was the plaintiff in this counter-claim who, subsequent upon the incessant and unfounded claims of the defendant herein after the death of plaintiff s father on portions of the land in dispute, that first initiated judicial proceedings against the defendant herein. In this connection, plaintiff will refer to the portion verged yellow on plan No. LSD 5016 dated 30th December, 1977, already filed in court and will add that this portion verged yellow marked the beginning of the story of continuous encroachment and unfounded claims to the land in dispute by the defendant herein.
32. Plaintiff herein instituted an action against the defendant in suit No. OCC/165171 at the Oweh Customary Court for the following reliefs:-
(i) Declaration of title
(ii) Trespass
(iii) Injunction
33. Judgment obtained against the defendant herein in this suit. .
34……………………………….
35. Added to this, the defendant herein being dissatisfied, appealed against the Oweh Customary Court judgment in suit No. OCC/165/71 to the Oleh Magistrate Court and his appeal was dismissed. Thereafter his appeal was also struck out in suit No. UHC/5A/73 at the High Court of Ugheli.
36. As this matter had been previously decided by courts of competent jurisdiction on the issues now being raised in this claim, the plaintiff herein shall rely on the following suits.
OCC/165/71: Ojenima Akwido v. Olowo Okokuje
MCO/3A/72 Olowo Okokuje v. Ojenima Akwido and
UHC/5A/73: Olowo Okokuje v. Ojenima Akwido
respectively before the Oweh Customary Court, Oleh Magistrate Court and the High Court of Justice, Ughelli, and also Survey plan No. LSU 5016 already filed in court”

P.71

The above paragraphs were replied to in paragraphs 8 – 10 of the plaintiff’s defence to counter-claim as follows:-
“8. The plaintiff in this suit denies the conclusion that the defendant in this suit is seeking to draw from paragraphs 31, 32, 33, 34, 35, 36, 37 and 39 of the statement of counter-claim which are mainly issues of law and reserves the right to raise all legal defences to res judicata and other legal issues therein.
9. More specifically the plaintiff in this suit avers that there was no dispute over the land in dispute in the life time of defendant’s father, during which he laid the foundation on the land in dispute.
10. Whereof the plaintiff in this suit shall contend that the defendant’s counter-claim is frivolous, misconceived and lacks merit and should be dismissed with substantial costs.”

The first point that I desire to point out is the anomalous situation whereby the defendant in the averments in support of this counter-claim referred to the plaintiff and himself as the defendant and the plaintiff respectively in the counter claim.
Without doubt, a defendant in any action who alleges that he has any claim or is entitled to any relief against a plaintiff in an action may instead of bringing a separate action make a counter-claim in respect of that matter, and where he does so, he must add the counter-claim to his defence. Although such counter-claim shall have the same effect as a statement of claim in a cross-action and as if the defendant making the counter-claim were the plaintiff and the plaintiff against whom it is made, the defendant, the counter-claimant nonetheless remains the defendant and the original plaintiff against whom the counter-claim is made, the plaintiff respectively and referred to as such in the pleadings of the parties.

P.72

It seems to me that there is a definite anomaly in the manner averments in support of the defendant’s counter-claim were pleaded referring to the plaintiff and the defendant in the main action as the defendant and the plaintiff respectively in the counter-claim.

Having so stated, it is clear that all the plaintiff did in his defence to the said paragraphs 31 – 36 of the defendant’s counter-claim was merely to deny “the conclusion” sought by the defendant from the said paragraphs of his counter-claim and no more. Although any reference to the plaintiff and the defendant in the pleadings and as indicated in the title of the suit was as the respective representative of their families, the defendant’s averment that he successfully sued the plaintiff in 1971 after the death of his father at the Oleh Customary Court for title, trespass and injunction in respect of the land in dispute was hardly denied by the plaintiff in the said paragraphs 8-10 of his defence to counter-claim.

The main function of pleadings is to ascertain with precision with various matters that are actually in dispute and the points on which they agree and thus to arrive at certain and clear issues on which both parties desire a judicial decision. Each party must give his opponent a sufficient Outline of his case. See Esso Petroleum Co. Ltd.v. Southport Corporation (1956) AC 218 at 241. A denial of a material allegation of fact in the pleadings, if not denied specifically or by necessary implication shall be taken as established at the hearing. See Samson Ajibade v. Mayowa & Another (1978) 9-10 SC 1 at 6; Eko Odumev. Ume Nnachi and Others (1964) 1 All NLR 329.

P.73

It seems to me that from the state of the pleadings, it does not appear the plaintiff joined issue with the defendant on the latter’s averment that the plaintiff was sued in Exhibit C in a representative capacity for and on behalf of the Akpara family. The plaintiff no where in his pleadings averred specifically that Exhibit C was not fought by the parties thereto in representative capacities. But as I have already stated, the plaintiff’s family, on the evidence, must be held to be parties to Exhibit C and both estoppel per rem judicatam and, at all events, estoppel by standing-by must operate against them by virtue of the said proceedings. I entertain no doubt that the court below was right when it held that the parties in Exhibit C are the same as in the present suit. I will now turn to the second question which is whether or not the claim or the issue in both the previous and the present actions are the same.

In this regard, it is patently clear that the principal relief sought in the two proceedings is the same, that is to say, declaration of title to land. There are also claims for damages for trespass and perpetual injunction in both suits. It is thus evident that the issue in both actions is the same.

With regard to the res, that is to say, subject-matter of litigation in the two cases, it is common ground that the land in dispute in Exhibit C is smaller but within and forms part of the land the subject-matter of the present action. It is also correct that Exhibit C, the Oweh Customary Court proceedings was, like most Native Court actions, not fought with a survey plan. But it is trite law that the absence of a survey plan cannot defeat the plaintiffs claim for title to land where the piece of land in dispute is ascertainable and identifiable. See Efetiroroje v. Okpalefe II (1991) 5 NWLR (pt.193) 517, Udeze v. Chidebe (supra).

P.74

The land in dispute in Exhibit C was clearly known to the parties and was in fact inspected by the court in their presence. Indeed in the present suit, the piece or parcel of land in dispute in Exhibit C was identified by both parties as being within the land, the subject-matter of the present action. Besides, the plaintiff under cross-examination admitted that he had earlier litigated the land in dispute with the defendant at the Oweh Customary Court. Said the plaintiff:-
“I had earlier litigated the land in dispute with the defendant at Oweh Customary Court……… The portion of land where I made my foundation included that land we litigated at Oweh Customary Court. If one faces Ozoro/Kwale Road, the land in dispute is one the left hand side of the road”. (Italics supplied).

In his plan Exhibit A, the plaintiff showed a portion of land in which he dug the foundation of a building. The said piece of land which is verged purple within the land in dispute in Exhibit A is marked “cause of action” and it is said to include the land litigated upon in Exhibit C. The defendant’s plan, Exhibit B, also identified the same land with another piece of land both verged yellow within the land in dispute and said to be the subject-matter of Exhibit C. It is clear to me that the land in dispute in Exhibit C having been identified within the land in dispute in the present case, the plaintiff herein is estopped from instituting this action over the same piece or parcel of land. In my view, the plaintiff’s action, in so far as it relates to the land awarded to the defendant in Exhibit C ought to have been dismissed by the trial court and judgment entered for the defendant in respect of his counter-claim with regard to that parcel of land. See Olufosoye v. Olorunfemi (1989) 1 NWLR (pt.95) 26.

P.75

The Court of Appeal was therefore right when it held that estoppel per rem judicatam applied to estop the plaintiff from re-litigating the issue of title to the land in dispute in so far as it affects the area already covered by the judgment of a court of competent jurisdiction in Exhibit C, that is to say, the piece of land verged purple in Exhibit A and yellow in Exhibit B.

Having dealt with the issue of the building plot of land which constituted the immediate cause of action in Exhibit C, it will now be necessary to see whether the precise extent and boundaries of the entire land put in issue and contested by the parties in that proceeding is identifiable or otherwise ascertainable.

It cannot be disputed that although the campus bellum in the proceeding, Exhibit C, is a building plot of land, it is clear from the proceedings that the parties put in issue in the said suit and contested a larger parcel of land which they claimed was originally acquired by first settlement by their respective ancestors. Exhibit C is a Customary Court proceeding and I have stressed that it is not the form of such an action that matters where the issue involved is clear. What is of importance is the substance of the action. I have also identified the land contested by the defendant in Exhibit C with the piece or parcel of land verged pink in their plan Exhibit A and find that they essentially comprise of the same piece of land. I will now turn to the evidence of the plaintiffs in Exhibit C to see the land they, too, put in issue in that case.

There is first the evidence of PW2, Ejetareme Esi, from Osifo family who, like DW1 AND DW4, testified as to the western boundary of the land claimed by the parties. There was next the evidence of PW3, Agaga Okorafor, from Ejide family who, again, like DW5 gave evidence of the eastern boundary of the land the parties put in issue at the trial. The northern boundary of the said land is bounded by the Kwale/Ashaka – Evrogba road.

P.76

It seems to me that one cannot be wrong to conclude that the land actually put in issue in Exhibit C is the same land shown verged pink in both Exhibits A and B in the present case. The court below did find that the area in dispute in the present case verged pink in both plans seem to coincide. Said the court:-
“The respondent filed a survey plan ‘Exhibit’ A’ in which the land in dispute is verged pink; the appellant also filed a survey plan Exhibit ‘B’ with the area in dispute also verged pink. The identity of the land in dispute is not in doubt as both plans are said to correspond.”
There is no appeal against this finding which i fully endorse as correct. Viewed from the angle, therefore, that the land now in dispute had been put in issue by the parties in Exhibit C, one cannot but uphold the decision of the court below dismissing the plaintiffs claim in respect of the land in dispute and decreeing title thereto to the defendant/counter-claimant whose title over the land was confirmed in Exhibit C. I will now turn to the question of issue estoppel, particularly in so far as it concerns both the entire land now in dispute, of the one part, and the balance thereof less the building plot of land referred to in Exhibit C, of the other part.

As already indicated, issue estoppel arises where a particular fact has earlier been put in issue and adjudicated upon by a court of competent jurisdiction and the same issue again comes into question in any subsequent proceeding between the same parties or their agents and privies. This is based on the principle of law that a party is precluded from contending the contrary of any specific point which, having been once distinctly put in issue, has with certainty and solemnity been determined against him. ‘See Samuel Fadiora & Another v. Festus Gbadebo and Anor. (1978) 3 SC 219. 

P.77

Three conditions, however, must be established to sustain a plea of issue estoppel. These, in effect, are:-
(i) The same question must be for decision in both proceedings, that is to say, the question for decision in the current suit must have been decided in the earlier proceeding.
(ii) The decision relied upon to support the plea of issue estoppel must be final and
(iii) The parties must be the same in both actions.
See Ezewani and Others v. Onwordi and Others (1986) 4 NWLR (Pt.33) 27; (1986) NSCC (Pt 11) 914 at 922.

With regard to the first condition, it is apparent from the pleadings and the evidence that both parties in the present case relied principally on traditional history and, secondly, on acts of possession to establish their title. It is also evident that the same issues relied on by the parties in this action are the very issues litigated and judicially pronounced upon by the Oweh Customary Court in Exhibit C. In this regard, the Oweh Customary Court on the issue of Traditional History decreed as follows:-
“We are convinced that Ugwe was the first to found and settle in Egbahe Street.’
A little later, the court held:-
“Having carefully viewed all the pieces of evidence adduced before the court by the two parties and their witnesses and also the report of inspection, we are inclined to believe the case of the plaintiff and disbelieve that of the defendant. The plaintiffs evidence (of traditional history) and the testimony of his witness are authoritative and categorical and so we give credence to them without reservation. The defendant’s evidence and the testimony of his witnesses are wary and contradictory, and so we hold that they are devoid of credibility. (Words in brackets supplied).

P.78

On the issue of acts of possession, the Customary Court found:-
“………his (Ugwe’s) children occupy almost every part of the (Egbahe) Street there is sufficient evidence before us that the plot in dispute together with a very large area is the compound of Ighavie.” (Words in brackets supplied).
On the question of trespass, the court held:-
” we are convinced beyond all reasonable doubts that the defendant really trespass onto the plot in dispute ”

The above findings of a court of competent jurisdiction are matters on which the present action is based and it is plain that the trial court, with respect, was in gross error to have failed to uphold the defendant’s plea of issue estoppel and to have reopened those issues all over again. In my judgment, the court below was right to have upheld the defendant’s plea of issue estoppel and to have set aside the decision of the trial court in that regard. This seems to me a correct application of the doctrine. And as was observed in a similar circumstances by this court in Bonny v. Yougha (1969) NSCC 366.
“We are clearly of the view that they had no right to start litigation again on precisely the same issue as had been determined in 1948. If this were permitted, there would be no finality in litigation, and it would violate a fundamental doctrine of all courts that there must be an end to litigation.”
So, too, in Obi Ezewani v. Obi Onwordi (supra) this court per Oputa JSC put the matter as follows:
“It was not necessary after pleading the 1962 cases to go all over again receiving evidence on matters and issues (like the traditional histories of the parties) which had been finally decided inter parties. The Court of Appeal, Benin Division, 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 parties in the 1962 cases.

P.79

The Asaba High Court and the Court of Appeal Benin Division were both right in treating the 1962 cases as F entirely and effectively estopping the people of Ogwashi-Uku from claiming the land then in dispute and a greater part of which is in dispute as theirs. The two courts below were right in awarding the declarations sought by the people of Ibusa and in ordering the injunction sought by them.” (Italics supplied)

I cannot conclude my treatment of estoppel per rem judicatam and issue estoppel in so far as they apply to this case without reference to the decision of this court in Amos Ogbesusi Aro v. Salami Fabolude(1983) 1 SCNLR58. It is necessary to stress that the facts of that case are comparable and virtually on all fours with those of the present case. The relevance of the facts and ratio decidendi in that case is so vital that it is necessary in this judgment to deal with them in estenso. In 1972, the plaintiff’s ancestor sued the defendant in the Owo Grade ‘B’ Customary Court for title, trespass and perpetual injunction in respect of a disputed piece of land. As in Exhibit C, no survey plan appeared to have been used. The claim was dismissed.
Subsequently, the plaintiff sued the defendant in the Owo Grade ‘A Customary Court. The defendant raised the defence of res judicata based on the 1972 case, but the plea was rejected. The plaintiff’s claims partially succeeded and he got judgment for title only. An appeal to the High Court by the defendant was dismissed but his further appeal to the Court of Appeal was upheld on the basis of the defence of res judicata.

P.80

The plaintiff then appealed to the Supreme Court contending that the plea of res judicata should have been upheld only in respect of the yellow verge agreed by the parties to be the land in dispute at the Owo Grade B Customary Court and which formed a small portion of the land in dispute verged pink in the plan used in the case. In rejecting the plea of res judicata in respect of the large parcel of land, the Supreme Court, Per Aniagolu, JSC state thus:-
”The most lenient treatment the plaintiffs case could possibly receive from the High Court would have been for the small area verged yellow to be excised from the large tract of land and the defendant declared owner per rem judicatam of that portion based on Exhibit B, while the plaintiff would be left to discharge the onus of proof which lay on him in respect of the remainder of the land on the principle laid down in many decided cases including Okon Owon v.Ete Ndom and Ors. (1954) 14 WACA 529. The High Court could neither have granted a declaration of title to the plaintiff of the large area of land, in the face of Exhibit B, nor could it have accepted the defence plea of res judicata; in respect of the same large area by reason of the decision in Exhibit B which allegedly concerned only the area verged yellow in the plan.
I am clearly of the view, that I so hold, that the defence plea of res judicata was wrongly upheld by the Court of Appeal in respect of the entire land verged pink in plan A but could only relate to the small area verged yellow in the said plan and be upheld in respect of that small area only. The contention of the plaintiff/appellant on this point is well founded.”

Having so held, the court proceeded to examine the evidence led in the two proceedings. It found that the cases, just as in the present proceedings, were fought on the basis of conflicting traditional histories of the parties.

P.81

The Owo Grade B Customary Court resolved that issue in favour of the defendant, holding that one Aro Orija through whom the plaintiff claimed the land in dispute as a direct son died childless as the defendant asserted. In holding that the resolution of this issue by the Owo Grade ‘B’ Customary Court constituted issue estoppel precluding the plaintiff from relitigating the matter all over again, this court, per Aniagolu JSC went on:-
”The basis for the plaintiffs claim was therefore thrown overboard in that judgment of 1972. The said basis was that he was the son of Aro Orija and that Aro Orija was the owner of the land in dispute and that the land descended to him as direct son of the said Aro Orija. Since the court held that the Aro Orija never had a son, having died without an issue, the substratum of the plaintiffs claim had gone and any claim made by him on the basis that he was the son of Aro Orija must necessary fail. That issue having been settled in 1972 in a decision of a court of competent jurisdiction, the plaintiff could not be allowed to re-open the issue.
A little later in his judgment, Aniagolu, JSC continued:-
“As part of the principle that society must discourage prolongation  of litigation, the doctrine has been developed that a party to civil proceedings is not allowed to make an assertion against the other party, whether of facts or legal consequences of facts, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential element in his previous cause of action or defence in a previous suit between the same parties or their predecessors in ‘title, and was determined by a court of competent jurisdiction, unless further material be found which was not available, and could not, by reasonable diligence, have been
available in the previous proceedings.

P.82

Commenting finally on the fact that the 1972 case, Exhibit B was not tied to any survey plan, the learned Justice concluded:-
“It is true that the earlier 1972 proceedings, Exhibit ‘B’ was said by the plaintiff to concern only the area verged yellow in the plan, Exhibit ‘A’ while the respondent claimed that it concerned the entire land verged pink; it is equally true that the respondent had no plan for the 1972 case and therefore could not categorically assert that the entire area verged pink was the subject of the 1972 litigation; and finally, although it is impossible for one to say what portions, (if any) of the area verged pink were affected by the 1972 litigation; yet, since the basis of the plaintiffs claim in respect of any land at Aratun was his assertion that he was the son of Aro Orija, then it does not matter the extent of land at Aratun which the plaintiff is claiming, for, so long as he is basing his claim upon his being the son of Aro Orija, his claim would be discredited, as indeed it was discredited, in this case all appeal. Deservedly, the claim should be dismissed whether ill respect of the area verged yellow only all the principle of res judicata, or in respect of the balance of the area verged pink all the principle of issue estoppel.  (Italics supplied).
I need say no more than that the above observations of this court per Aniagolu, JSC are with the greatest respect, well founded and I do not hesitate to endorse then fully as sound.
Now, the court below, per Edozie, JCA, after giving the closest attention to the said decision of this court in the Amos Ogbesusi Aro case commented thus:
“…………. applying the principle distilled from the Amos Ogbesusi Aro v. Salami Fabolude (supra) to the present case, it seems clear that the learned trial Judge was in error in entering judgment in favour of the respondent in respect of the entire land verged pink in the respondent’s survey plan Exhibit ‘A’ in the face of the judgment of the Oweh Customary Court, Exhibit ‘C’ adjudging the appellant owner of a plot of land forming part of the large area verged pink in Exhibit’ A’.

P.83

At the worst, the lower court should have given the respondent judgment for the area verged pink less the area subject-matter in Exhibit C and if this area is not identifiable because no plan was used, to non-suit the appellant so as to give him the opportunity to establish that portion in subsequent action. The lower court was also clearly in error when it failed to appreciate that the decision of the Oweh customary court with respect to the traditional histories of the parties constituted an issue estoppel precluding the respondent from re-opening the issue in a subsequent
proceeding.”
He went on:-
“As I pointed out earlier, the parties’ cases in the lower court were fought and decided upon on the basis of their conflicting traditional histories. The respondent’s traditional history, in the main, was that his ancestor Akpara was the first to settle on the land in dispute which was shown to him by Egide and that Obokwo a descendant of Akpara allowed Ighavie son of Uwhe and the descendants of the appellant to live on the land due to the relationship that developed between him and Omaniyo, the widow of Ojomura the son of Obohwo. In that way, the descendants of lghavie came to live on the land in dispute. Contrary to that, the appellant asserted that it was Uwhe the father of Ighavie their ancestor who first founded the land and when on a hunting expedition, he found Akpara in the bush and took him to live with him. In that way the descendants of Akpara of whom the respondent is among came to inhabit the land.

P.84

These were the conflicting histories proffered before the Oweh Customary Court in the 1972 proceedings and in resolving the conflict, the court by a majority of two to one said (Pp. 221 and 222 of the record of appeal.)
“We are convinced that Ugwe (Uwhe) was the first to found and settle in Egbahe Street… ……….
After carefully considering the foregoing points, we conclude that the plaintiff and the Ighavie lineage of Ugwe family have title to the plot in dispute, and that the defendant and the Akpara family have no title to it.”
He concluded:-
“The question of whose ancestor first settled on the land in dispute having been settled in favour of the appellant, the descendant of Ugwe (Uwhe) the father of Ighavie, that constitutes an issue estoppel which debars the respondent from reopening the matter. In my considered opinion, this issue estoppel which enures in favour of the appellant is sufficient to entitle him to judgment in his counter-claim.”

With respect to Edozie, JCA, I do not see how further I can put this matter any better than he did in the judgment of the court below. If I may borrow the words of my learned brother, Aniagolu, JSC in the Amos Ogbesusi Aro case, even if there is no agreement as to whether Exhibit C concerned the entire land now in dispute and verged pink in Exhibits A and B, it is not in dispute that the building plot of land covered by Exhibit C is admittedly within the area in dispute in the present case. I need only stress that since the basis of the plaintiffs claim in respect of any Akpara’s land at Egbahe Street is his assertion that his said ancestor, Akpara was the first to found and settle thereon at Egbahe street, a claim or traditional history which the Oweh Customary Court rejected, it is clear that as long as he is basing his claim to title upon the discredited traditional history in respect of the land in  dispute at Eghahe Street, such a claim cannot see the light of day and must stand dismissed whether in respect of the area covered by Exhibit C and verged purple and yellow in Exhibits A and B respectively on the principle of estoppel per rem judicatam, or in respect of the balance of the area verged pink on the principle of issue estoppel.

P.85

It cannot therefore be any matter of concern whether or not the area covered by Exhibit C is co-extensive with the area in dispute in the present case. In either case, he plaintiff’s claim has no chance of any success but must be liable to fail on the principle of res judicata and issue estoppel.

Turning now to condition 2, it is not in dispute that Exhibits C and D are final decisions of the Oweh Customary Court and on appeal therefrom to the Oleh Magistrate’s Court. The present defendant, as plaintiff in those courts, obtained judgment in both courts in his favour against the present plaintiff and the Akpara family for title to the land then in dispute, trespass and injunction. The plaintiffs further appeal to the Ugheli High Court was abandoned and accordingly struck out.

On condition 3, I have earlier on in this judgment held that the parties in both Exhibit C and the present action are the same. I will say no more on that issue. I need only add that having regard to all I have said above, it seems to me that the Court of Appeal was right when it held that the plea of estoppel per rem judicatam and issue estoppel enured to the defendant both in their defence to the plaintiffs action, and in their counter-claim. This is so as it has long been settled that although the plea of estoppel is a shield for the protection of the defendant, it can also validly be employed, as in the present case, as a sword by the plaintiff. See Odjevwedje v. Echanokpe (1987) 1 NWLR (Pt.52) 633 at 644 and Ezeani v. Onwordi (supra).

P.86

The Court of Appeal was therefore right in law when it entered judgment for the defendant after upholding the defendant’s plea of res judicata and issue estoppel.
It is for the above reasons, with profound respect, that I find myself unable to subscribe to the conclusion reached by my learned brother, Katsina-Alu, JSC which finds favour with my learned brethren, Kutigi and Onu, JJSc. If the decision in this appeal were to rest with me, I would dismiss it and affirm the decision of the court below. I would also award N10,000.00 costs of this appeal to the defendant/respondent.
Appeal allowed.

P.87