CORAM

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KAYODE ESO

ANTHONY NNAEMEZIE ANIAGOLU

AUGUSTINE NNAMANI

MUHAMMADU LAWAL UWAIS

SALIHU MODIBBO ALFA BELGORE

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PARTIES

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AYIWE ODJEVWEDJE & ANOR APPELLANTS

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MADAM OBENABENA ECHANOKPE RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Appellants were the Plaintiffs in a suit, which they brought against the Respondent as Defendant in the High Court of Bendel State, holden at Ughelli, where they sought for a declaration that the Plaintiffs are the occupiers of the piece of land shown on Survey Plan No. ECBS 355/80, the sum of N7, 000.00, being special and general damages for the trespass committed by the Defendant and/or her servants and agents, when sometime in January 1980, they allegedly entered the land and destroyed rubber trees belonging to the Plaintiffs and started building operation, and perpetual injunction against the Defendant and/or her servants and agents from further acts of trespass, and/or interference with Plaintiffs’ possession. At the trial the 1st Appellant, testified and called two witnesses, one of whom (P.W.2) was a surveyor. He relied on a previous judgment to substantiate their pleas of res judicata. The Defendant did not give evidence or call any witness. The trial court dismissed the Plaintiff’s claim. The Plaintiff appealed to the Court of Appeal, complaining, that since the Plaintiffs’ evidence was unchallenged and uncontradicted; and the survey plan exhibit showed the area of land verged green, which was declared to belong to the Plaintiffs’ family, the trial judge should have entered judgment for the Plaintiffs. The Court of Appeal in agreeing with the trial judge held that the Plaintiffs failed to prove their claim to the land. The Plaintiffs were further aggrieved by this decision hence an appeal to this Court.

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HELD

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Appeal Allowed

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ISSUES

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Can the respondent challenge the ownership by the appellants of the whole of the area edged green minus the area marked in black ink exhibit A.

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RATIONES DECIDENDI

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ESTOPPEL- KINDS OF ESTOPPEL BY JUDGMENT

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“There are two kinds of estoppel by judgment, namely (1) cause of action estoppel and (2) issue estoppel. The nature of these was explained by Diplock, LJ (as he then was) in Thoday v. Thoday, (1964) p. 181 at pp. 197-198 as follows –
“………… cause of action estoppel, is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, i.e. judgment was given upon it, it is said to be merged in the judgment transit in rem judicatam. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam. This, is simply an application of the rule of public policy, ….. issue estoppel, is an extension of the same rule of public policy. There are many causes of action which can only be established by proving that two or more different conditions are fulfilled. Such causes of action involve as many separate issues, as there are conditions (which the plaintiff must fulfill to establish his case); and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action. If, in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction; either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was.”

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DEFENCE OF ISSUE ESTOPPEL -WHO RAISES THE DEFENCE OF ISSUE ESTOPPEL?

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“The defence of issue estoppel had been pronounced upon by this Court in quite a number of cases, including Ladega v. Durosimi (1978) 3 Sc. 91; Ara v. Fabolude, (1983) 2 S.C. 75; Fadiora & Anor. v. Gbadebo & Anor. (1978) 3 S.C. 219, Maga Chiwendu v. Nwanegba Mbamali, (1980) 3-4 S.C. 31 and Ezewani v. Onwordi & Ors. (1986) 4 NWLR 27. But one common feature of these cases is that generally it is always the defendant that raises the defence of issue estoppel against the plaintiff. The reverse is hardly come by. However it has since been settled that although the plea of estoppel is a shield for the protection of a defendant, it can also validly be employed as sword by a plaintiff – see Maga Chinwendu v. Nwanegbo Mbamali & Anor. (1980) 3-4 S.C. 31 at pA8 and Ezewani v. Onwordi, (1986) 4 NWLR 27 at p.55.”

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ADMISSION OF A FACT- WHETHER ADMISSION OF A FACT FUNDAMENTAL TO THE DECISION ARRIVED AT CAN BE WITHDRAWN

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“The Privy Council in Hoystead v. Taxation Commissioner (1926) A.C. 155 at … 165-166 said-
“In the opinion of their Lordships it is settled, first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view of obtaining another judgment upon a different assumption of facts; secondly, the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of that fact. Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle. Thirdly, the same principle – namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken. The same principle of setting parties’ rights to rest applies and estoppel occurs.”

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ISSUE ESTOPPEL – NATURE OF ISSUE ESTOPPEL

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“What then is an issue estoppel? In a cause, more than one issue may arise. While some of the issues may be decided in favour of one party in the cause, the other issues may be decided in favour of the other party. This is different from the final determination of the cause. If the parties are the same, and the subject matter is the same, the determination of the whole cause against one party estops that party from raising the contrary before another court in another suit between the same parties and the same subject matter. It is said that there is estoppel per rem judicatam. If the decision is in regard to only some of the issues within the cause, there is issue estoppel. I will like to quote with approval the dictum of Diplock L.J. in Fidelitas Ship- G ping Co. Ltd. v. VIO Exportchled (1966) 1 Q.B. 630, at p.642. The learned Law Lord had said –
“In the case of litigation the fact that a suit may involve a number of different issues is recognised by the Rules of the Supreme Court (U.K. Rules) which contain provision enabling one or more questions (whether of fact or law) in an action to be tried before others. Where the issue separately determined is not decisive of the suit, the judgment upon that issue is an interlocutory judgment and the suit continues. Yet I take it to be too clear to need citation of authority that the parties to the suit are bound by the determination of the issue. They cannot in the suit advance argument or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is by way of appeal from the interlocutory judgment and, where appropriate, an application to the appellate court to advance further evidence; but such application will only be granted if the appellate court is satisfied that the fresh evidence sought to be adduced could not have been available at the original hearing of the issue even if the party seeking to adduce it had exercised due diligence.”

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ISSUE ESTOPPEL – CONDITIONS FOR THE APPLICABILITY OF ISSUE ESTOPPEL

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How about raising the issues in another suit between the same parties on the same subject matter? In Ezewari v. Onwordi (1986) 4 N.W.W.R. (Part 33) 27, this Court as per Kazeem J.S.C. referred to Idigbe J.S.C.’s pronouncement in Samuel Fadiora and Anor. v. Festus Gbadebo (1978) 3 SC. 219. I regard the learned Justice of Supreme Court Idigbe’s pronouncement as a classicus on the subject. Idigbe J .S.C. had said in that case –
“Now, there are two kinds of estoppel by record inter partes or per rem judicatam, as it is generally known. The first is usually referred to as “cause of action estoppel” and it occurs where the cause of action is merged in the judgment, that is, Transit in rem judicatam, (See King v. Hoare (1844) 13 M & W 495 at 504).
Therefore, on this principle of law (or rule of evidence) once it appears that the same cause of action was held to lie (or not to lie) in a final judgment between the same parties, or their privies, who are litigating in the same capacity (and on the same subject matter), there is an end of the matter. They are precluded from relitigating the same cause of action. There is, however, a second kind of estoppel inter partes and this usually occurs where an issue has earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in these circumstances, “issue estoppel” arises. This is based on the principle of law that a party is not allowed to (i.e. he is precluded from) contending the contrary or opposite of any specific point which having been once distinctly put in issue, has with certainty and solemnity been determined against him. (See Outram v. Morewood (1803) 3 East 346). Issue estoppel applies whether the point involved in the earlier decision is one of fact or law or one of mixed fact and law. However, for the principle to apply, in any given proceedings, all the pre-conditions to a valid plea of estoppel inter partes or per rem judicatam must apply, that, (1) the same question must be for decision in both proceedings (which means that the question for decision in the current suit must have been decided in the earlier proceeding), (2) the decision relied upon to support the plea of issue estoppel must be final (3) the parties must be the same (which means that parties involved in both proceedings must be the same) (per se or by their privies).”

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COURT OF APPEAL – WHETHER THE COURT OF APPEAL HAS JURISDICTION TO WIPE OUT PREVIOUS DECISIONS WHICH WERE NOT APPEALED AGAINST IT

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“A Court of Appeal only sits to review the matter on appeal before it and not to wipe out previous decisions which were not appealed against. In regard to those the Court of Appeal has no jurisdiction. However long the arms of the law are, they do not exist to twist what is not placed before the Court. A decision of a court of competent jurisdiction not appealed against, or which appealed against has not been set aside, exists for ever between the parties. It is in the interest of public policy that there must exist an end to litigation. This brings certainty. This is justice.”

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ISSUE ESTOPPEL – RATIONALE FOR ISSUE ESTOPPEL

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“We have reiterated in many judgments in this Court the fact that there must be an end to litigation and when issues have been fought, considered by a competent court and decided upon by that court, disputation over that issue is at an end, except the matter be taken on appeal and debated further until the appellate courts have been exhausted. Cases lately decided by this Court on that issue include SC.32/1985, Obi Izedluno Ezewani V. Obi Nkedi Onwordi & 3 Ors. (1986) 4 N.W.L.R. 27, and Aro V. Fabolude (1983) SC. 75 at 95.”

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Nil|

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