IN THE SUPREME COURT OF NIGERIA
On thursday, the 9th day of March 1978
SAMUEL FADIORA ALADE IN RESAMUEL ......................... APPELLANT
FESTUS GBADEBO & ANOR ......................... RESPONDENT
The principal question raised in this appeal and which calls for the decision of this Court is what exactly is the meaning and effect of an order (by an appellate court) for a trial denovo or subsequent proceeding pursuant to that order.
In the High Court of the former Western state holden at Oshogbo the respondents as plaintiffs claimed from the defendant (the appellant herein and another) jointly and severally a declaration of title to a farm land, damages and an injunction.
The first defendant, on the other hand, in their statement of defence avers that the farmland in dispute was granted to his late father Joshua Fadiora by the late Oni Ajagun Ademiluyi about 40 years ago. The first defendant further avers that only in 1954 the first plaintiff in this present case instituted an action suit. No. 45/54 in the Ife Land Court against Joshua Fadiora the father of the first defendant and lost and that the defendants intends to raise a plea of res judicata during the proceedings of this case in view of two previous judgments of courts of competent Jurisdiction.
When the case came before Fakayode. J (as he then was), sitting in the High Court of Oshogbo, upon an interlocutory application specially for considerations of the plea of res Judicata set up by the defendants (appellants herein) in their statement of defence and they tendered the Judgment and proceedings in the 1954 suit between Festus Gbadebo and Joshua Fadiora which was admitted in evidence and marked Exhibit 'A' without objection.
The learned trial Judge, Fakayode. J. held in this ruling that the plea of res Judicata is overruled. The burden is on the person alleging that Exhibit 'A' is a res Judicata to prove that the court which decided Exhibit 'A' had Jurisdiction to do so.
And after the ruling of Fakayode J. on the plea of res Judicata, parties by leave of the court, amended their pleadings and hearing in the case commenced and concluded. Fakayode. J dismissed the plaintiffs (respondents' herein) claims
On appeal by the plaintiffs (respondents) to the then western state court of Appeal, it was ordered that the case be sent back for re-trial before another Judge.
Pursuant to the order of the western state court of Appeal the case was heard denovo by another Judge, Ogunkeye J. (as he then was) and in the pleadings filed before the learned trial Judge, the defendants in their statement of defence, avers again that in 1954 the first plaintiff in this case instituted an action suit No. 45/54 in the Ife Lands court against the first defendant's father Joshua Fadiora and lost and that they intend to rely on the plea of res Judicata.
The learned trial Judge, Fakayode. J. held that the plea of res Judicata succeeds and that the plaintiffs were estopped from re-litigating the issues decided in the 1954 suit in the Ife Lands Court which were precisely the same as those raised in the case in hand.
On appeal to the western state court of appeal, the plaintiffs (respondents) submitted that the learned trial Judge erred in law in basing his Judgment on a matter which has been previously adjudicated upon by the High court and decided in plaintiffs' favour and from which adjudication the defendants never appealed. The western state court of Appeal upheld the appeal.
The first defendant (appellant) appeals from this Judgment of the western state court of appeal to the supreme court and contended that the Western state court of Appeal erred in Law in holding that the ruling of Fakayode J. was capable of supporting a plea of issue estoppel in the circumstances of these proceedings and also that the court of Appeal erred in Law is holding that it was not open to the court of second trial (Ogunkeye .J) to consider and decide on the plea of estoppel per rem Judicatam based on suit 45/54 of the Ife Lands Court because of the decision (i.e. the first ruling) in the first trial which had not, in the view of that court, been set aside.
(1) The ruling of the first trial is not final as it did not decide the plea of estoppel based on the 1954 Judgment of the Ife Lands Court (Exhibit 'A') failed because that court (i.e. Ife Land Court) had no Jurisdiction to deal with the matter, that is, the learned trial Judge in the court of first trial felt unable to sustain the plea in the circumstances before him, as he had no evidence one way or the other on the preliminary issue of Jurisdiction (an essential pre-condition to the sustenance of a plea of estoppel inter partes based on a Judgment of any court of inferior record).
(2) In trials denovo the case must be proved a new or rather re-proved denovo, and therefore, the evidence and verdict given as well as the Judges findings, at the first trial are completely inadmissible on the basis that prima facie they have been discarded or got rid of.
(3) The court of second trial therefore, is entitled to and, indeed, must look at the pleadings before it in order to ascertain and decide the issues joined by the parties before it on their pleadings. This is the reason why it is a fundamental principle of the doctrine of res Judicata that "no finding of the court or jury which has proved abortive, a new trial having been direct, will give rise to a valid plea of estoppel."
(4) In Law the effect of an order for new trial is to allow the parties to re-prove their case and that the ruling of Fakayode. J. in the first trial, undoubtedly a decision, cannot operate in estoppel (whether as a cause of action estoppel or issue estoppel) against the appellant.
(5) It was open to the court of second trial to consider again the plea of res Judicata based on suit No 45/54 and that there was nothing in the ruling in the first trial on the point which could possible preclude the defendants under the doctrine of "issue estoppel" from litigating the issue.
(6) A Judicial decision otherwise final is not less so merely because it is appeallable or that it is actually under appeal and that the onus is on the respondents who assert the contrary of Exhibit 'A' by virtue of a subsequent decision on appeal to produce that decision.
(7) It was open to the learned trial Judge in the court of second trial (Ogunkeye. J.) to consider the plea of res Judicata based on suit 45/54 of the Ife Lands Court and raised on the pleadings before him and that the majority Judgment of the court of Appeal was very much in error of law in the view it took of the issue.
(8) Where a point of law which has not been taken in the court below is put forward by an appellant for the first time in a court of Appeal that court ought not to decide in his favour unless it is satisfied beyond doubt that it has before it all the facts bearing on the new contention as completely as if it has been raised in the lower court and that no satisfactory explanation could have been given in the court below if it had been so raised.
(9) Fakayode. J. (whose Judgment was then the subject of appeal) was right to uphold the objection of the plaintiffs to the defendants relying on the judgment in suit No. 45/54 as res Judicata, as the onus was on the defendants to establish the existence and/or competence of the court which gave its decision in suit No. 45/54.
Afuye for the Appellants
Aderoju Aderemi for the Respondents
Cases referred to:
1. Anrah Vs. North-Eastern Railways (1833) Q.B.D. 440 at 457
2. Bliar Vs. Curran
3. Connecticut fire insurance Co. Kavanagb (1892) AC 473
4. Doe Vs. Wright (1939) 10 AD & E1 763 at 783.
5. Fidelitas shipping co. ltd. Vs. export chaleb (1965) 2 All E.R.4.
6. Gipps Vs. Gipps & Hume (1864) 11 H.L. cas. 1 or (1861 - 73) All ER. Rep. 138
7. Gray Vs. Dalgety & Co. Ltd. (1961) 21. C.L. R 509
8. Jackson Vs. Goldsmith (1950) 81 C.L.R. 446.
9. James Adetipe Vs. Jimoh Omisakin Amodu & Anor SC. 673/66. Unreported.
10. King Vs. Hoare (1844) 13 M & W. 495 at 504.
11. Lawal Vs. Yakubu (1972) Part 11 of 1 All N.L.R. 270.
12. Moola (M.E.) Sons Ltd. (Official liquidator) Vs. Burjor jee (1932) 8 F.L.R. 279.
13. Outram Vs. More wood (1803) 3 East 346.
14. Perpetual Trustees Co. Ltd. Vs. Blair & Others (1939) 62 CLR 464.
15. Randolh Vs. Tuck (1961) 1 All ER. 814.
16. Roe Vs. Naylor (1918) 87 L.J.K.B. 958.
17. Smith Vs. Stroud (1926) 42 T.L.R. 372
18. Timi timi Vs. Admabebe (1953) 14 W.A.C.A. 374.
19. Tsamania (ship owners and freight owners) Vs. smith Etc city of corinth (owners), (1890) 15 AC.223.
20. Venn Vs. Tedesco (1926) 2 KB. 227.
Idigbe, J.S.C.-The principal question raised in this appeal and which calls for the decision of this Court is what exactly is the meaning and effect of an order (by an appellate court) for a trial de novo on subsequent proceedings pursuant to that order? In the High Court of the former Western (now Oyo) State holden at Oshogbo the respondents as plaintiffs claimed from the defendant (the appellant herein and another) the following reliefs:-
"(1) ... jointly and severally ... a declaration of title to a piece of farmland situated at Wanikin Village at Aye in Ife Division;
(2) ... £150 being damages for the crops (on), and use of the said farmland...
(3) ... an injunction restricting the defendants and their agents from using ... the said land ..."
Pleadings were filed by the parties following an order of the High Court; and in paragraphs 8, 12, 13 and 14 of their statement of defence the defendants pleaded thus:-
"(8) The first defendant avers that the farmland in dispute was granted to his late father Joshua Fadiora by the late Oni Ajagun Ademiluyi about 40 years ago.
(12) The first defendant avers that only in 1954 the first plaintiff in this present case instituted an action Suit No. 45/54 in the Ife Land Court against Joshua Fadiora the father of the first defendant and lost.
(13) The Counsel (sic) of the defendants intends to raise a plea of res judicata during the proceedings (sic) of this case in view of TWO previous judgments of courts of competent jurisdiction.
(14) The defendants aver that there are about 100 tenants on the land in dispute who pay customary Ishakole to the father of the first defendant annually until his death in 1961 and thereafter to the first defendant."
On the 11th day of May, 1966, when the case came up before Fakayode J. (as) he then was sitting in the High Court of Oshogbo, upon an interlocutory application specially for consideration of the plea of res judicata set up by the defendants (appellants herein) in paragraphs 12 and 13 of the statement of defence, the following notes appear:
"... Olukole [for defendants] raises the plea of res judicata in paragraphs 12 and 13 of the statement of defence. In 1954 there was a land case between the first plaintiff on behalf of the Wanikin Family against Joshua Fadiora the father of the first defendant. The 1954 claim was in respect of (a) declaration of title to this same land (b) £50 cost of palm fruits reaped and (c) injunction. This is the proceeding and judgment in the 1954 suit (judgment and proceedings in the 1954 suit ... Festus Gbadebo Vs. Joshua Fadiora tendered and admitted as Exhibit 'A' without objection). This is the Plan No. DK 698 in support of Exhibit 'A'. This is the judgment of the Appeal Court (tendered and marked Exhibit 'C' without objection). Plaintiffs' plan in this case is Plan No. AK 896 on which the land in dispute is edged Green. (Plan No. AK 896 is admitted as Exhibit 'D' without objection); the boundaries of the land in Exhibit 'B' and 'D' are the same as well as the acreage. The parties in the two cases are the same or they are privies...
OMISORE [for the plaintiffs] replies and says:
... The court which decided Exhibit 'A' had no jurisdiction, say, the court is only for appeals and not for original (sic) jurisdiction. Tenders Photostat copy of the panel of the Oni's [of Ife's] court of appeal dated 18/12/52 ...
At this stage Mr Omisore says he would like an adjournment to enable him subpoena the staff of the Ministry of Justice to
come and tender the Warrant of the Court which sat to decide Exhibit 'A'.
Ruling: Case is adjourned at the instance of plaintiffs' counsel to 24/5/66 with 10 guineas costs."
On the adjourned date (i.e. the 24th May, 1966, however, the following notes appear:
OMISORE says in order that a plea of res judicata may stand the court which decided the case must have jurisdiction. The court which decided Exhibit 'A' was not existing at the time ...
Ruling: The plea of res judicata is overruled. The burden is on the person alleging that Exhibit 'A' is a res judicata to prove that the court which decided Exhibit 'A' had jurisdiction to do so. One way of proving such jurisdiction is to tender the Warrant of the court which made the decision or to prove jurisdiction by official copy of the Warrant or by (its) publication in (the) gazette. Native courts and Customary courts are inferior courts and so any person alleging that these courts jurisdiction when the question of their jurisdiction is in issue must prove such jurisdiction. In this case the burden is on the defendants to establish the court's jurisdiction. They have failed to do so and their plea of res judicata fails with 5 guineas costs to plaintiffs." Case is adjourned to 6/9/66.
The plea of estoppel per rem judicatam having failed, hearing in the case commenced and on the 22nd June, 1966, Fakayode J. dismissed the plaintiffs' (respondents' herein) claims. An appeal by the plaintiffs to the Western State Court of Appeal was, on the 22nd day of March, 1968, allowed and that court ordered inter alia as follows:-
"(1) that this appeal be and is hereby allowed;
(2) that the judgment of the Cshogbo High Court including the order as to costs be and is hereby set aside;
(3) that the case be sent back for re-trial before another Judge;
(4) that costs in the High Court should abide the result of the re-trial."
It is, we think, pertinent to mention at this stage that after the ruling of Fakayode J. on the plea of res judicata on 24th May, 1966, parties; by leave of the Court, amended their pleadings the relevant portions of the amended statements of claim and defence read, respectively as follows:
"Amended Statement of Claim: ...
(3) The land in dispute in this action is the area verged green on the Plan No. AK896 dated 8/5/64 filed with the original statement of claim and it corresponds with the area edged pink or red on Plan No. 1698B dated 27/4/64 filed by the defendants with the original statement of defence in this action.
(4) The said land in dispute is the Southern portion of a larger piece or parcel of land Vested in the Wanikin family by native law and custom very many years ago.
(6) ... Among the tenants placed (by the plaintiffs' ancestors) on the land in dispute and paying Ishakole to the Wanikin family was Joshua Fadiora, the father of the first defendant ..."
"Amended Statement of Defence:
(4) The defendants deny paragraphs 5, 6, 7 and 10 of the statement of claim.
(5) The first defendant avers that neither he nor his father has ever been a tenant customary or otherwise of the Wanikin family.
(6) The first defendant avers that the land in dispute which is more properly shown on Plan No. 1 98B filed with the original statement of defence and edged 'red' thereon was lawfully and rightfully granted to his late father Joshua Fadiora by the late Oni Ajagun Ademiluyi about 40 years ago.
(9) In 1954 the first plaintiff in this case instituted an action Suit No. 45/54 in the Ife Lands Court against the first defendant's father Joshua Fadiora and lost.
(10) The defendants further aver that there are about 100 tenants on the said land who paid customary Ishakole to the first defendant as well as to his father Joshua Fadiora before him ...
Pursuant to the order of the Western State Court of Appeal the case was heard de novo by another Judge (Ogunkeye J. as he then was) who in his judgment dated the 18th December, 1970 observed as follows:-
"They (the defendants) rely on a previous judgment in Suit No. 45/54 in the Ife Land Court to raise a plea of res judicata. It is with this plea that I now intend to deal since, if it succeeds, it is unnecessary to go into any other aspect of the matter."
Thereafter the learned Judge gave a detailed consideration of the plea and came to the conclusion that the plea succeeded and that the plaintiffs were estopped from, re-litigating the issues decided in the 1954 suit in the Ife Lands Court which were precisely the same as those raised in the case in hand. He, therefore, dismissed the plaintiffs' (respondents' herein). The plaintiffs appealed from the judgment of Ogunkeye J. to the Western State Court of Appeal on the only ground that:
"The learned trial Judge erred in law in basing his judgment on a matter which had been previously adjudicated upon by the High Court and decided in plaintiffs' favour and from which adjudication the defendants never appealed."
The reference in the foregoing ground of appeal to "a matter which has been previously adjudicated upon by the High Court" is obviously to the Ruling of the 24th May, 1966, by Fakayode J. On the 13th May, 1974, the Western State Court of Appeal by a majority judgment [Madarikan P. - as he then was, Kayode Eso J.A. - as he then was, and Akinkugbe J.A. - as he then was, dissentiente] allowed the appeal. Parts of the Majority judgment, judgment of that court read:
"In our view, there can be no question that, during the first trial the issue of res judicata was determined by Fakayode, J. We are not unmindful of the fact that when the trial came before this Court on appeal, we ordered a re-trial; but we wish to stress that during the first trial the issue of res judicata was taken in limine and as the decision of Fakeyode J. on that issue was not challenged before us, no pronouncement was made by this Court on the issue. Consequently, we are of the opinion that the decision of Fakayode J. on the issue of res judicata still subsists as it has not been expressly set aside. As between the parties and their privies that decision must be regarded as conclusive in so far as the issue of res judicata is concerned. The only way the defendants as aggrieved parties can vacate that position is to get the decision of Fakayode J. set aside by a court of competent jurisdiction ... It is not competent for the High Court, in the same question arising between the same parties in one and the same action to review a previous decision not on appeal. If the aggrieved parties maintain that the first decision was wrong, they ought to have appealed from it in due time. As that has not been done here, the inescapable result is that issue estoppel applies ...
The 1st defendant (appellant herein) appeals from this judgment and henceforth the plaintiffs will be referred to simply as the respondents and the 1st defendant as the appellant.
Before us, learned Counsel for the appellant has argued that the Western State Court of Appeal (hereinafter referred to as "the Court of Appeal") erred in law:
(1) In holding that the ruling of Fakayode J. on 24th May, 1966 (hereinafter referred to as "the Ruling in the first trial") was capable of supporting a plea of issue estoppel in the circumstances of these proceedings-and
(2) that the Court of Appeal also erred in law in holding that it was not open to the court of second trial (Ogunkeye, J.) to consider and decide on the plea of estoppel per rem judicatam based on Suit 45/54 of the Ife Lands Court because of the decision (i.e. the Ruling) in the first trial which had not-in the view of that court-been set aside.
Now, there are two kinds of estoppel by record inter partes or per rem judicatam, as it is generally known. The first is usually referred to as "cause of action estoppel" and it occurs where the cause of action is merged in the judgment, that is, Transit in rem judicatam [see King Vs. 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 Vs. 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).
Dealing with the issue of "Finality" of judgment for the purpose of establishing successfully a plea of res judicata, the learned authors of Spencer Bower & Turner on the Doctrine of Res Judicata (1969 Ed.) in Art 164, P. 134 state as follows:
"A judicial decision is deemed to be final, when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution, and is absolute, complete, and certain, and when it is not lawfully subject to subsequent decision, review or modification by the tribunal which pronounced it ..."
Again, in Article 168 at P. 135 the same learned authors in the same book observe:
"No finding of the court or of a jury of a trial which has proved abortive, a new trial having been directed, will give rise to a valid plea of estoppel. And a decision of the court setting aside the verdict of a jury, or setting aside a judgment entered pursuant thereto, and directing a new trail, will not result in either party being estopped per rem judicatam by anything held on the facts in the judgment in which the new trial is ordered, for the judgment must be read as deciding no more than that, the first trial being unsatisfactory, the issues tried therein should be re-submitted to the court for fresh consideration."
Adverting, therefore, to the principles of law enshrined in the foregoing quotations and with which we are in agreement one may legitimately ask whether the ruling in the first trial was, indeed final. What, after all, was the substance of that ruling? It certainly did not decide that the plea of estoppel based on the 1954 judgment of the Ife Lands Court (Exhibit 'A') failed because that court had not jurisdiction to deal with the matter. As we understand that ruling, it was to the effect that the learned trial Judge in the court of first trial felt unable to sustain the plea, in the circumstances before him, as he had no evidence one way or the other on the preliminary issue of jurisdiction (an essential pre-condition to the sustenance of a plea of estoppel inter partes based on a judgment of any court of inferior record) of the Ife Lands Court which dealt with Exhibit 'A'. And, unless and until the preliminary issue of jurisdiction of any court of inferior record whose decision is sought to be used as a prop to a plea of res judicata, is decided it is, we think, difficult to give any final decision on the plea (i.e. of estoppel) based on such a judgment. If proceedings of a court are pronounced to be coram non judice a court will not consider further the questions whether the proceedings can support the other ingredients of a valid plea of estoppel per rem judicatam (such as (a) identity of interest and of parties and (b) identity of subject matter and, the pronouncement on the lack of jurisdiction of the court would in these circumstances be final: but there can be no finality in the absence of any pronouncement one way or the other on the issue of jurisdiction unless the court makes a favourable presumption on that issue (as it quite often does in respect of judgments of courts of superior record).
But that as it may, the entire case came up, before Ogunkeye J. for fresh hearing (i.e. trial de novo); no conditions were attached to the order of the Court of Appeal dated the 22nd March, 1968, and the pleadings (i.e. both the statement of claim and statement of defence) as amended were very much alive on the record during the hearing in the court of second trial (Ogunkeye, J.). What then does a court of second trial do in these circumstances? Is it to ignore the issues raised in the pleadings and thereon joined by the parties? Learned Counsel for the respondents repeats the argument, advanced by him in the Court of Appeal, that it is beyond the competence of the court of second trial to entertain and give a decision on a plea of estoppel per rem judicatam based on the Ife Lands Court Suit 45/54 (Exhibit 'A') because-according to him-parties were precluded by the ruling in the first trial from re-opening that issue. In support of his contention, learned Counsel for the respondents referred us to the cases of Lawal Vs. Yakubu (1972) Part II of 1 All. N.L.R.270; Fidelitas Shipping Co. Ltd. Vs. Exportchleb (1965) 2 All. E.R.4 and cited copiously from the observations of Lord Denning M.R. in the latter case. Learned Counsel for the appellant, however, contends that a Court of Appeal makes an unconditional order for re-trial of a case the court of second trial has, just as the court of first trial, the necessary competence to entertain all the issues joined by the parties before it; and he referred to the cases of Roe Vs. Naylor (1918) 87 L.J.K.B. 985 and the observations of Mc Cardie J. in Venn Vs. Tedesco (1926) 2 K.B. 227 at 237. In the course of their submissions considerable use was made by learned Counsel on both sides of the case of Fidelitas (Supra) and we think that, in the circumstances, we ought to set out succinctly the facts in that case and take a closer look at the case as a whole. From the manner in which counsel have used this case we got the impression that if only a little more care was given to the understanding of the facts in the case, there will be little misunderstanding of the principles of the doctrine of res judicata as applied therein.
The facts in Fidelitas (Supra) so far as they are relevant for our consideration of the point in the appeal (i.e. the question of estoppel, inter partes are as follows: The owners of the motor vessel Sophia claimed demurrage against the charters and the dispute went to arbitration. The principal questions were whether the claim was excluded by a "cesser clause" in the charter party and whether the charterers had by making a payment on account of demurrage, waived the clause. At the request of the charterers the umpire (arbitrator) stated his award (of the 1st November, 1962) in the form of a special case adding therein the statement; "subject to the answer of the court to the questions hereinafter stated, I award and adjudge that the charterers do pay to the owners a balance of demurrage in the sum of £4,881.7.Id." The relevant question was whether the shipowners claim was excluded by the "cesser clause". The umpire also added, in the special case the statement: "If the opinion of the court is different from the above (i.e. mine), I respectfully request that the opinion of the court be made known to me and that this award be remitted to me to enable me reconsider my award." The special case did not distinctly raise any point about waiver of the cesser clause although the shipowners had relied on waiver before the arbitrator. His express determination of the issue relating to the cesser clause in the special case was in the shipowners' favour but on grounds other than that of waiver. The shipowners did not get the special case remitted for the facts relevant to waiver to be stated and a specific question asked about waiver. On the hearing before the High Court (Megaw J.) the point of waiver was not taken. That court held that the claim for demurrage was excluded by the cesser clause, and the judge expressed the opinion, albeit obiter that the shipowners were not entitled to raise the point of waiver. The Court of Appeal affirmed the decision of the judge, but expressed no opinion on the point of waiver. When the case went back to the arbitrator for reconsideration, the shipowners sought to raise again their contention about waiver of the cesser clause. The arbitrator then stated a consultative case seeking the opinion of the High Court whether the shipowners should be allowed to raise it. On appeal from the decision of the High Court (Mocatta, J.) that the shipowners could raise the question of waiver: Held that (1) the special case of 21st November, 1962 was an interim award, for it was a decision by the arbirtator of issues, subject to the opinion of the court not a consultative case; and, accordingly, when an issue raised by the special case had been determined by the court the court's decision could give rise to issue estoppel. (2) If the shipowners were to succeed in establishing a waiver they would obtain a reversal of the determination by the court of the issue that was the subject of the interim award (i.e. whether their claim to demurrage was excluded by the cesser clause) and as they had not ensured that the question of waiver was raised in the interim award, they were estopped, by virtue of the doctrine of issue estoppel, from raising it thereafter. The foregoing in a nutshell are the facts in the case of Fidelitas (supra).
There is, indeed, hardly anything new in the case of Fidelitas (Supra); like the case of Lawal Vs. Dawudu (supra) in which certain passages in Fidelitas were cited with approval by this Court it does no more than re-state in clearer terms the age-long principles of the doctrine of res judicata as well as demonstrate the circumstances in which litigants may successfully apply these principles.
Having reviewed the facts in Fidelitas (Supra), we now propose to deal with the important question in this appeal which is whether it was proper for Ogunkeye J. to deal with the issue of res judicata based on the Ife Lands Court Suit 45/54. Put in another form, the question is; what exactly is the implication and effect of an unconditional or unqualified order for trial de novo by the Court of Appeal of a case on appeal before that court? We think that in trials de novo the case must be proved a new or rather re-proved de novo, and therefore, the judges findings, at the first trial are completely inadmissible on the basis that prima facie they have been discarded or got rid of. The Court of second trial, therefore, is entitled to and, indeed, must look at the pleadings before it in order to ascertain and decide the issues joined by the parties before it on their pleadings. This is the reason why it is a fundamental principle of the doctrine of res judicata that "no finding of the court or of a jury which has proved abortive, a new trial having been directed, will give rise to a valid plea of estoppel"; and over the years this principle has been hallowed by a number of important decisions, and we will mention a few in chronological order and also refer to important observations in some of them. In Gipps Vs. Gipps & Hume (1864) 11 H.L. Cas 1: 1861-73 All E.R. Rep.138, it was held that where by consent a jury has been dispensed with on the trial of a petition for divorce, if a new trial should be ordered, the consent previously given would no longer be binding and the petitioner might demand to have his case tried before a jury (per Lord Wensleydale). In Roe Vs. R.A. Naylor Ltd. (1918) 87 L.J.K.B. 958, the court of second trial refused to admit in evidence some finding made by the court of first trial as it was of the view that it was inadmissible and dealing with the point in the Court of Appeal, Swinfen Eady M.R. observed:
"Counsel for the appellants sought to rely upon some finding of the Judge in the first trial of the action. In my opinion he is not entitled to do that. This action was sent for a new trial, and the second trial superseded the first, and any finding in the first action was got rid of when the action was sent for new trial..." (1918) 87 L.3.M.S. at 963.
In Gray Vs. Dalgety & Co. Ltd., (1916) 21 C.L.R. 509 an appeal in the High Court of Australia from the Supreme Court of Victoria, the following observations appear in the judgment of the Chief Justice at pp. 520-521.
"... If the finding of the jury is to be read with this direction, the jury have in substance found that the real promise was to find willing lenders who would enter into negotiations with the plaintiff, which for reasons I have given, is an incomplete and uncertain contract, and, moreover is not the contract alleged.
The appellant further contends that the respondents are estopped from setting up this view of the law, because, they say, that question was definitely settled as between the parties by the language of the judges who formed the majority of this Court when giving reasons for granting a new trial, and who expressed the opinion that upon the evidence given at the first trial the jury have been warranted in finding a contract which was neither void for uncertainty nor obnoxious to the Statute of Frauds. I am unable to find any support either in principle or authority for the contention. A decision of a court upon some matter directly in controversy between the parties upon some definite point of fact or determination of right, no doubt operates as an estoppel. And this may be even so as to an incidental matter arising in the course of the proceedings which require immediate settlement...But I never heard it suggested that a grant of a new trial was a final decision upon any point except that the matter should be further investigated...."
Again in Venn Vs. Tedesco (1926) 2 K.B.227, McCardie J. dealing with the argument that a party is precluded in the court of second trial from raising a point which arises on the pleadings but which had not been taken by him in court of first trial observed at page 237:
"I am unable to agree with that contention. The point was one of law only. It involved no evidence, and the facts on the point were not only admitted, but were actually pleaded in the statement of claim itself. There is, I think, no estoppel in the matter. The trail before me was a de novo hearing, and the defendants were entitled to raise before me the point pleaded in their statement of defence. My recollection is that this question has been decided by the Court of Appeal as I now decide it, though I am unable to find a reported decision on the matter..."
It is not unlikely that the reference to the decision by the Court of Appeal in the last sentence of McCardie J. in the above question is to Roe Vs. Naylor (Supra). Finally in Smith Vs. Stroud (1926) 42 T.L.R.372 it was also held that where a Court of Appeal orders that the entire judgment given by the trial Judge be set aside and a new trial granted to the parties with a direction that costs on the abandoned counter-claim should abide the decision of the judge on the new trial, the counter-claim is revived and must be tried together with the claim.
These cases set out above make it clear that in law the effect of an order for new trial is to allow the parties to re-prove their case. We share the view of Akinkugbe J.A. in his dissenting judgment in the Court of Appeal in this case when he said: "If that is the view taken by the law (i.e. if the effect of an order for re-trial is not as stated by us in the immediately proceeding sentence) it may certainly, with respect, lead to a bizarre situation. This will mean that a documentary exhibit rejected in an earlier trail and in respect of which no appeal has been lodged could not be tendered (and received in evidence) at the second trial..."
We do not, of course, overlook the pith of the admission on behalf of the respondents which seeks to establish not merely the point that the plea of res judicata was not available to the defendants in the court of second trial but that they are precluded on the principle of issue estoppel from raising the plea anew in that trial by the ruling of Fakayode J: and it was in support of this admission that copious reference was made to the case of Fidelitas (Supra). That case was closely considered by us earlier on and, while we agree entirely with the decision and with the observations of Lord Denning M. and Lord Diplock L.J. (as he then was) in the case, that case, which is not one heard pursuant to an order for re-trial is distinguishable from the appeal in hand which is from a decision of a court of second trial and the decision does not apply to the issue before us. Secondly, we have already indicated that the ruling of Fakayode J. in the first trial, undoubtedly a decision, cannot operate in estoppel (whether as cause of action estoppel or issue estoppel) against the appellant. In addition to what has earlier on been said by us, we would like to draw attention to the very useful observations, and with which we are in agreement, on res judicata in the case of Blair Vs. Curran: Perpetual Trustees Co. (Ltd.) Vs. Blair & others (1939) 62 C.L.R. 464:
A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commended or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of motion claimed or put in suit is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or case of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided in the prior judgment, decree or order.
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded, ... Findings, however deliberate and formal which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation...." See Dixon J. in (1939) 62 C.L.R. at pp. 532-533.
It is also well known that in order to decide what questions of law or fact were determined in the earlier judgment the court is entitled to look at the judge's reasons for his decision and his notes of evidence and is not restricted to the formal judgment [See Randolph Vs. Tuck (1961) 1 All E.R. 814] and where the plea is of issue estoppel it is open to the court investigating the plea to look at other materials on the record which will show what issues were raised and in fact decided, and the reasons for the decision. On this same point we would like to refer, with approval, to similar observation by Fullagar J. in Jackson Vs. Goldsmith (1950) 81 C.L.R. 446 which read:
"Where the plea is of res judicata only the actual record (i.e. of formal judgment) is relevant; where the plea is of issue estoppel, any material may be looked at which will show what issues were raised and decided. Reasons for the judgment pronounced are likely to be particularly important..."
Applying the foregoing observations to the ruling in the first trial what do we find? We find that the defendants sought to support their plea of res judicata with Exhibit 'A' (the Suit No. 45/54 in Ife Lands Court); being a judgment of inferior court of record it was necessary to consider and decide if that court had jurisdiction to deal with the claim in, and decide as per, Exhibit 'A'. The warrant was not seen (or, none was produced).
There may or may not be a valid warrant giving to that court the necessary competence to decide as per Exhibit 'A'. Fakayode, J. held that the defendants did not discharge the onus on them of producing the warrant of the court. In effect he was unable to sustain the plea as he could not decide the preliminary issue of jurisdiction. In the language of Dixon J. in Blair Vs. Curran (supra) one may legitimately ask: what is it that is "logically indispensable to the conclusion" of Fakayode J. in his ruling of 11th May, 1966, which is now "finally closed, or precluded" from being raised as an issue, in the court of second trial? We think the answer clearly is that there is nothing of importance to the issue sought to be raised in that court (i.e. court of second trial). What was, logically indispensable to the specific decision in question (i.e. of Fakayode J. in 1966) was the existence of jurisdiction of the Ife Lands Court. It was not decided; it could not have been, as the warrant of that court was not before him. We think we have said enough to demonstrate beyond doubt that (1) it was open to the court of second trial to consider again the plea of res judicata based on Suit 45/54 and (2) that there was nothing in the ruling in the first trial on the point which could possibly preclude the defendants under the doctrine of 'issue estoppel' from re-litigating the issue.
It remains for us to consider the point made by the respondents on the question of an appeal which was said to have been lodged against the decision in Exhibit 'A'. We note that when the defendants gave evidence relating to the Ife Lands Court Suit No. 45/54, and tendered the proceedings Exhibit 'A' they also testified that there was an appeal by the respondents from the judgment in Exhibit 'A' to the Administrative Officer of the province. When, however, the defendants sought to put in evidence the decision on appeal the respondents objected to its reception in evidence on the ground that it was not specifically pleaded and the learned trial Judge sustained the objection. It was contended before us that since there was an appeal from the decision in Exhibit 'A' that decision cannot be said to be finished and until the decision of the Administrative Officer on appeal is put in evidence Exhibit 'A' is incapable of sustaining a valid plea of estoppel into partes. We think that the contention and submission on this point is without any merit. The short answer to the submission is: (1) "that a judicial decision, otherwise final is not the less so merely because it is appealable" [Para. 154, p.100 of Spencer Bower on Res Judicata 1924 Edition i.e. the original edition] or that it is actually under appeal [See Doe Vs. Wright (1939) 10 Ad & El 763 at p. 783 per Lord Denman C.J.; Art. 182 P.144 Spencer Bower & Turner on Res Judicata (1969) Edition], and (2) that the onus is on the respondents who assert the contrary of Exhibit 'A' by virtue of a subsequent decision on appeal to produce that decision. That elementary principle of the Law of Evidence was confirmed in Anrath Vs. North-Eastern Railways (1883) Q.B.D.440 at 457 per Bowen L.J.
We are therefore satisfied that it was open to the learned Judge in the court of second trial (Ogunkeye J.) to consider the plea of res judicata based on Suit 45/54 of the Ife Lands Court and raised on the pleadings before him and that the majority judgment of the Court of Appeal was very much in error of law in the view it took of the issue. We were satisfied also that on the record it was clear that the Ife Lands Court Suit 45/54 (hereafter referred to simply as "Suit 45/54") was between the same parties in these proceedings, that is, the case in hand (in the sense that it concerns in the case of the appellant, his privy, that is, his father. As we were satisfied that a plan was used in evidence at the trial of Suit 45/54 but was not produced before the court of second trial when the entire proceedings in Suit 45/54 were put in evidence in that court, we caused the plan to be produced before us in this Court; and as parties were satisfied that it was the plan used in Suit 45/54 we admitted the same in evidence as Exhibit "F.S.C.(1)." Now upon a close look at Exhibit F.S.C. (1) and on comparison with the plans Exhibits 'A', 'B' and 'C' filed by the parties herein the case in hand we are satisfied that the land in dispute in Suit 45/54 is the same as the land in dispute in the current proceedings. In any event, the effect of paragraph 3 of the amended statement of claim earlier on set out in these proceedings is that, the respondents do not deny the assertion of the appellant that parties are in the current proceedings litigating over the same piece of land that was in dispute in Suit 45/54. We are, therefore, satisfied that the decision in Suit 45/54 refers to the same land as is now in dispute in this case. In that suit the present respondent, Festus Gbadebo, claimed against the father of the appellant a declaration of title on the same land now in dispute in the case in hand and also £50 being value of plan fruits collected by the tenants of the father of the appellant as well as an order of injuction. The Ife lands Court found against the respondent and dismissed all his claims; it found in favour of the father of the appellant, as claimed by him, that he was a grantee of the land now in dispute from the late Oni of Ife - Ademiluyi. On the above premises we feel inclined to uphold the judgment of the court of second trial (Ogunkeye J.) as we earlier on had clearly indicated that the judgment of the Court of Appeal is in error of law. We are, however, unable to find in favour of the appellant for the reasons stated in the next two paragraphs.
At a late stage of his argument learned Counsel for the respondents sought leave of this Court to take a point of law; it was not entirely a new point of law because it was mentioned in the court below but was not in fact pursued before Ogunkeye J. It could not have been pursued because all the relevant materials required to support the point were not, at the time, available. The point is that the Ife Lands Court did not in fact possess the necessary jurisdiction to entertain and decide the claim in Suit 45/54; consequently the decision in that suit could not operate as estoppel (per rem judicatam) against the respondents. Now, Section 32 of the Evidence Act enables any party to raise lack of jurisdiction in respect of a judgment of a court sought to be used against him on grounds of estoppel. [See also the decision in Timitimi Vs. Amabebe (1953) 14 W.A.C.A. 374]. However, the law is that where a point of law which has not been taken in the court below is put forward by an appellant for the first time in a Court of Appeal that court ought not to decide in his favour unless it is satisfied beyond doubt: (a) that it has before it all the facts bearing on the new contention as completely as if it has been raised in the Lower court (i.e. court of first instance), and (b) that no satisfactory explanation could have been given in the court below if it had been so raised [see Tasmania (Shipowners and Freight owners) Vs. Smith Etc. City of Corinth (owners), (1890) 15 App. Cases 223]. The point which the appellant seeks to argue is that which relates to the jurisdiction of the Ife Lands Court and he has in reply to our questions to him confirmed that he still has not found the Warrant of that court. In other words, it could be argued that all the facts bearing on the new contention are not before us; but learned Counsel has drawn our attention to a decision of this Court given on 28th February, 1969, in Suit SC.673/66 between James Adetipe Vs. Jimoh Omisakin Amodu & Anor which he contended supports completely the point he wishes to make and which according to him supports also his contention that had the new point been taken in the court below no satisfactory explanation could have been offered by the appellants to counter the contention (which is to the effect that the court which sat over Suit 45/54 had no jurisdiction to do so, that is, entertain, and decide upon the issues in, the suit). The other point, however, for our consideration is that this Court is a court of last resort and the rule of practice is that when a question of law is raised for the first time in a court of last resort it is generally not only competent but expedient in the interest of justice for the court to entertain the question [see Connecticut Fire Insurance Co. Vs. Kavanagh (1892) A.C. 473 P.C.]. This rule of practice, however, is subject to the qualification that the court of last resort may refuse to entertain the question the of law sought to be raised for the first time if it is satisfied that the court below would have been in a more advantageous position to deal with the matter [see also Moola (M.E.) Sons. Ltd. (official Liquidator) Vs. Burjorjee (1932) 48 T.L.R. 279]. Accordingly, after due consideration of the application we granted leave to learned Counsel for the respondents and received arguments and submissions on the point.
In James Adetipe Vs. Jimoh Omisakin Amodu (supra) the precise point now in issue came before this Court and it is whether (1) there is legally a court known as the Ife Lands Court and (2) if there is, whether it had the necessary jurisdiction to entertain claims for title to land, damages for trespass and injunction. In that case this Court was unable to find in the schedule of legally existing Native Courts in the Ife - Ilesha complex [Vol.9 Laws of Nigeria 1948 Edition p.48] any court known as the Ife Lands Court; nor was any of the parties before it, after exhaustive search able to produce any Warrant conferring jurisdiction on any such court. In the penultimate paragraph of the judgment of the court in the case, I. Lewis J.S.C. made the following observations (and from which we have no reason to depart in the circumstances of these proceedings):-
"After the most anxious consideration of this appeal we are of the opinion that we must make it clear that we are not saying that the Land Court of Ife did not exist. For all we know a court by that name existed but it had not been proved in this case that the court existed. The warrant of the court was not produced and [... the file] correspondence about Native Court in Ife District throws doubt on the existence of such a court or that a warrant for such a court was ever issued. Whatever doubt that might exist it was for the defendant appellant [and in the case in hand, the appellant] to clear such doubt and this our opinion he failed to do.
That being so we are satisfied that ... and are of the view that Fakayode J. [whose judgment was then the subject of appeal] was right to upheld the objection of the plaintiff to the defendants relying on the judgment in Suit 45/54 as res judicata ..."
The position relating to the existence of the Ife Lands Court has not changed since the decision in James Adetipe. The appellant in the case in hand is exactly in the same position as the appellant in James Adetipe (supra). The effect of the point newly taken is that the onus was on defendants to establish the existence and/or competence of the court which gave its decision in Suit 45/54.
Until and unless they did so their plea of estoppel per rem judicatam which, as we have held, the court of second trial (Ogunkeye J.) had the competence to entertain notwithstanding the ruling of Fakayode J. in the court of first trial in May 1966, could not succeed.
Accordingly this appeal fails and it is dismissed because Ogunkeye's J's decision rested only on the defendants' plea of res judicata which in our view must, in the circumstances of this case, fail. The other aspects of the case and the evidence thereon were not considered in the court of second trial and this Court cannot make findings on those aspects of the case.
Reluctantly and as we have said before but for a different reason, we affirm the order the Western State Court of Appeal that the decision of Ogunkeye J., of 18th December, 1970, in Suit HOS/71/64 be set aside and the case be remitted to the lower court (High Court of Oyo State) for re-trial de novo (i.e. third trial) before a judge other than the two judges who presided at the first and second trials.
It is further ordered that the parties be at liberty if they so desire to amend their pleadings. The respondents shall have costs of this appeal which we assess and fix at