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IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 4TH DAY OF FEBRUARY 1983

SC 106/1981

BETWEEN

AMOS O. ARO ............................................. APPELLANT

AND

SALAMI FABOLUDE ........................................... RESPONDENT

BEFORE:  Sowemimo, Bello, Idigbe, Obaseki, Aniagolu; JJ.S.C.

 

In 1972 in a Grade B Customary Court one Chief Olafisaye of Owo, the present appellant’s predecessor, sued the respondent herein claiming ownership of the land in dispute and an injunction restraining the respondent, his servants and/or his agents from committing any further act of trespass on the said land. The claim was dismissed.

Later on in the same year, the appellant suing for himself and on behalf of Aro family of Isaipen, Owo took out a declaratory action and an injunction at the Grade A Customary Court against the respondent, in a representative capacity, for himself and for and on behalf of the Oronnaiye family of Igbaroko, Owo. The court gave judgment for the appellant, granting his prayer as to declaration of title but refusing the order for injunction against the respondent whose family, the court found, had occupied the portion of the land in their possession for a long time, but restraining him, his servants and agents from making new farms on the land in dispute except with the consent and approval of the appellant. In doing this the court rejected the respondent’s plea of res judicata based on the decision of the Grade B Customary Court. On appeal by the respondent to the High Court, that court affirmed the judgment of the customary court thereby dismissing the appeal hence a further appeal by the respondent to the Federal Court of Appeal which upheld the respondent’s plea of res judicata, entered judgment for him and set aside the judgments of the Grade A Customary Court and High Court.

The appellant appealed to the Supreme Court against the judgment of the Federal Court of Appeal on the ground that the respondent’s plea of res judicata should have been upheld only in respect of that piece of land which was the subject matter of the previous case by the Grade B Customary Court and which was part of the larger portion of the land presently in dispute.

 

HELD:                       

(1) Before the principle of res judicata is applied the subject matter in contention, the issues and the parties in the previous case must be the same as the instant suit.

(2) The principle of res judicata applies not only to points upon which the court is actually required by the parties to form an opinion and pronounce judgments but to every point which properly belongs to the subject matter of litigation and which the parties exercising reasonable diligence might have brought forward at the time.

(3) Since there was no plan used for the previous case decided by the Grade B Customary Court, the area of the piece of land which formed the subject matter of the case must be ascertained from the evidence of the parties which showed in sum, that the land which formed the subject matter of the case decided by the Grade B Customary Court was part of the piece of land presently in dispute.

(4) The subject matter of the present case is different, in terms of size and area of land, from the subject matter of the 1972 case. Therefore to hold that the appellant should be estopped per rem judicatam on the basis of the decision of the Grade B Customary Court from claiming any portion of the land presently in dispute to be worked against the accepted principles of res judicata.

(5) The respondents plea of res judicata was wrongly upheld by the Federal Court of Appeal in respect of the entire piece of land presently in dispute, it can only relate to and be upheld in respect of that portion of the land presently in dispute that was the subject matter of the case earlier decided by the Grade B Customary Court.

(6) The appellant’s assertion while trying to establish his title to the land in dispute that he was the only male child of the previous owner of the said land (which subsequently devolved to him) run contrary to the finding of the Grade B Customary Court on the issue of whether the previous had any child at his death. The Grade B Customary Court found that he (the previous owner) died without a child which operated as an issue estoppel thereon so that he (the appellant) was therefore estopped from re-opening an issue already decided by a court of competent jurisdiction.

(7) In respect of the portion of the land presently in dispute that was not caught by the concept of estoppel per rem judicatam, that is the portion that was not the subject matter of the case decided by the Grade B Customary Court, the appellant cannot prove his title there by claiming that it devolved on him by virtue of his being the only son of the previous owner since to do so would re-open the issue of whether the previous owner had any child at his death which has already been decided by a court of competent jurisdiction; the appellant’s claim in its entirety must therefore necessarily fail.

Appeal dismissed.

Cases referred to:–

(1) Duedu v. Yiboe (1961) 1 WSLR 1040.

(2) Fabunmi v. Delegan (1965) NMLR 369.

(3) Fidelitas Shipping Co. Limited v. v/o Exportchled (196) QB 630.

(4) Hunter v. Chief Constable of West Midlands Police (1981) 3 WLR 906.

(5) Ibiyemi v. Olusodi (1957) WRNLR 25

(6) Lawal v. Dawodu and another (1954) WACA 530.

(7) Mills v Cooper (1967) 2 All ER 100.

(8) New Brunswick Railway Co. v. British and French Trust Corp. Limited (1939) ACI.

(9) Odua v. Nwanze (1934) 2 WACA 94.

(10) Ogundairo v. Okanianwon (1963) 1 All NLR 358.

(11) Owon v. Ndan and others (1946) 12 WACA 71.

(12) Shoe Machinery Co. v. Cutlan (1896) 1 ch. 667.

(13) Sobanjo v. Oke and another (1954) 14 WACA 593.

Statute referred to:–

Evidence Act, 1945.

H.A. Lardner S.A.N. (with him S.O. Ige) for the Appellant.

A O. Fesobi for the Respondent.

Aniagolu, J.S.C. Two issues for determination appear to present themselves in this appeal, namely:—

(1) whether, by reason of the judgment (exhibit B) of the Owo Grade B Customary Court of Western State of Nigeria, on 22nd May 1972 in Suit No.37 of 1972, the claim of the plaintiff was not defeated by the defence plea of estoppel per rem judicatam; and

(2) whether, even without the plea of res judicata, the claim of the plaintiff was not defensible on the ground that on the totality, of the evidence, the claim was not maintainable.

A proper appreciation of these issues can best be made upon intimate understanding of the facts of the case: In 1972 in the Owo Grade B Customary Court of the then Western State of Nigeria, holden at Owo, one Chief Ikori Olafisoye of Uwo, the present plaintiff’s predecessor, sued Salami Fabolude claiming ownership of the land in dispute and an injunction as follows:

“Claim: Declaration of title to a piece of land situate, lying and being at Aratun camp–Owo. An injunction restraining the defendant his servants and/or his agents from committing any further act of trespass on the said land.

The value of the land is £100.”

The claim was dismissed, the court holding that

“the piece of land does not belong to the plaintiff as claimed therefore an injunction to restrain the defendant from trespassing on the land has no footing, therefore it fails, claim dismissed.”

No plan of the land in dispute appeared to have been made, and none, certainly, was exhibited.

On 26th July 1972, the present plaintiff, suing for himself and on behalf of Aro Family of Isaipen, Owo, took out a declaratory action and an injunction against the same Salami Fabolude, in a representative capacity, for himself and for and on behalf of the Oronnaiye Family of Igboroko, of the same Owo Town. The action was taken in the Owo Divisional Grade A Customary Court by a solicitor. The court gave judgment for the plaintiff, declaring title in the Plaintiff but refused the order for injunction against the defendant whose family, the court found, had occupied the portion of the land in their possession for a ling time. On the balance of hardship the court granted possession to the defendant of the area in their occupation but restrained him, his servants and agents from making new farms on the land in dispute except with the consent and approval of the plaintiff. In doing this the court rejected the defendant’s plea of res judicata based on the 1972 case. The defendant appealed to the High Court against the said judgment but the High Court dismissed the appeal and affirmed the judgment of the Owo Grade ‘A’ Customary Court.

The defendant further appealed to the Federal Court of Appeal which, in its judgment, upheld the plea of res judicata, entered judgment for the defence, set aside the judgments of the Owo Grade A Customary Court and the High Court. It is from the said judgment of the Federal Court of Appeal that the plaintiff has appealed to this Court on the ground that the plea of res judicata should have been upheld ONLY in respect of the area verged ‘yellow’ in the plan used in the case which, he said, was the area in dispute in exhibit B in the previous suit–the present area in dispute being a large stretch of land of which the yellow portion is only a small part. The grounds of Appeal as filed, read:

“Grounds of Appeal:

1. The Federal Court of Appeal misdirected itself in law by failing to observe that as

(1) the plea of res judicata per rem judacam raised by the defendant could as a matter of law relate only to so much of the land in dispute in exhibit B as is in dispute in the present case.

(2) the learned Judge on Appeal accepted the version of the plaintiff that

(a) the former is only a part of the land now in dispute and

(b) it is the area verged yellow and marked C in the plan exhibit A.

(3) the court having itself breached (sic) the same conclusion on the evidence, the plea ought to have been upheld only in respect of the area verged yellow on exhibit A and the appeal otherwise dismissed.”

To return to first principles, public policy demands that there should be an end to litigation once a court of competent jurisdiction has settled, by a final decision, the matters in contention between the parties. Not only must the court not encourage prolongation of a dispute, it must also discourage proliferation of litigation. And so the maxim Interest Reipublica Ut Sit Finis Litium has for long been accepted as one of the established principles of our law. Of equal importance is the principle–also well established in our law–that no man ought to be twice vexed, if it is proved to the court that it is for one and the same cause. Expressed in the terse Latin maxim: Nemo Debet Bis Vexari, Si Constat Curiae Quod Sit Pro Una Et Eadem Causa, the principle runs through the entire gamut of our legal approach, whether it be in civil or criminal matters. It, therefore, forms the foundation of the plea res judicata in civil cases and the please of autrefois convict and autrefois acquit in criminal cases.

I shall leave for the meantime consideration of criminal matters since I am now considering a civil case, but not before alluding to the observation of Lord Diplock in Mills v. Cooper (1967) 2 All ER 100 at 105 in which he agreed that the general rule of estoppel applied to criminal proceedings

“but in a form modified by the distinctive character of criminal as compared with civil litigation. Here it takes the form of the rule against double jeopardy, of which the simplest application is to be found in the pleas of autrefois convict and autrefois acquit.”

In civil cases, before this principle is applied, the res (the subject-matter) in contention must be the same; the issue, and the parties the same, in the new case as in the earlier proceedings. Where any of the three matters is missing in the new case a plea of res judicata will ordinarily fail (see: Odua v. Nwanze (1934) 2 WACA 98 at 100-102). I say “ordinarily” because the principle has been applied, in the public interest of the desirability of seeing an end to litigation, to an accommodation of a wider spectrum, “not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject-matter of litigation and which the parties exercising reasonable diligence might have brought forward at the time” (Italics mine). (See: Henderson v. Henderson 67 ER 313 at 319; cited with approval in Fabunmi v. Delegan (1965) NMLR 369 at 373.) Let us then look at the evidence in this case on appeal. As I said before, there was no plan used for the 1972 case, and therefore the area of the land then in dispute must be gathered, if possible, from the evidence of the parties.

The present plaintiff, in his evidence under re-examination swore that the land in dispute in 1972 was only a part of the land in dispute in the present case. He said

“the land in dispute in 1972 is only a part of the land now in dispute in this case.”

Indeed, he gave the exact area of the land then in dispute as against the land in dispute in the present case. Under the same re-examination he said:

“the area in dispute in this action is 267.22 acres. The area of land litigated upon in exhibit ‘B’ is 4.298 acres.”

The evidence of the plaintiff, in the present case, was that in 1972 the then plaintiff sued the defendant in respect of a piece of land “on the Amuren side”, implying that only the portion of the land on the Amuren side was in dispute in the 1972 case as against the entirety of the land in the present case. Although the defendant testified that the area in dispute in the 1972 case was the whole land now in dispute, the defence evidence suggested that both the plaintiff and the defendant had their different portions of land within the “Aratun Camp.” At page 24 of the Record of the defendant Salami Fabolude testified:

“it is not correct that the plaintiff’s ancestors have exercised rights of ownership over the land. Ikori sued Salami Adetifa in respect of the whole land now in dispute in 1972. The claim was dismissed in the Grade B Court.”

At page 25 of the same Record the same witness swore that the plaintiff sued him because he placed palm leaves in his farm and those of his people. He said he had his own farm at Aratun Camp and that the plaintiff never disturbed him on his own portion of the land in Aratun Camp. To get him exactly, this was what he said;

“Aro Orija died before I was born. Ikori sued me because I placed palm leaves in his farm and those of his people. I have my own farm at Aratun Camp. Ikori never disturbed me on my own piece of land.” (Italic mine.)

In its own judgment in the 1972 case, the Owo Grade B Customary Court reproduced the following as being part of the contention of the defendant (the same man as the present defendant)

“that because he defendant got the Alaghere’s share, the plaintiff angrily left the gathering. That this prompted him to use his landlord’s power and hence he defendant ordered that palm leaves should be put in all farms other than those belonging to the sons of Oronnaiye at Aratun Farms and that the farms of plaintiff and his followers should be specially filled with the palm leaves to show his (defendant) ownership of the farm land that the order was carried out.”

–evidence suggesting that both the plaintiff and the defendant had their different portions of the land in Aratun Camp. The plan made and used for the present case (No. OG1192/73 made by a licensed surveyor and dated 28th June 1973) shows the area of the land now in dispute to be a large tract of land verged pink in the plan. Within the area verged pink, is the area marked “C” and verged yellow said to be the area in dispute in 1972. Apparently, this area verged yellow measures 4.298 acres as indicated in the plan while the area verged pink measures 267.22 acres. It is clear therefore that the subject-matter of the present case is different, in terms of size and area of the land, from the subject-matter of the 1972 case. To hold that the plaintiff (whose suit in respect of the yellow portion in 1972 was dismissed and the judgment was in respect of that yellow portion, marked “C”, measuring 4.298 acres in 1972) should be estopped per rem judicatam from claiming the large tract of land measuring 267.22 acres, will be to work against the accepted principles of res judicata. The subject-matter not being the same, it is my view that the President of the Owo Divisional Grade A Customary Court was right, in his judgment, when he rejected the defendant’s plea of res judicata. The Court of Appeal while nothing that:

“It has not been easy to find any direct authority on the point where a decision over a small area is used as a basis for a plea of res judicata in later proceedings involving a wider area of land,”

none-the-less, relying on the authority of Ogundairo v. Okanlawon (1963) 1 All NLR 358 upheld the defence plea of res judicata maintaining “that it will be safer to follow the judgment in Ogundairo” and held that “the plea of res judicata should be upheld.”

It must be noted that the defendant has not made a plan in this case and has not given evidence of acts of possession and enjoyment of the large tract of land, verged pink, outside the yellow portion, which might have justified the Owo Grade ‘A’ Customary Court in invoking the provisions of section 45 of the Evidence Act. Let me now look closely at Ogundairo v. Okanlawon (supra) relied upon by the court of Appeal for its judgment. It was a dispute between the people of Awaiye Village as plaintiffs and the people of Ijako-Orile as defendants over a large area of land. The plaintiffs sued for declaration of title over the land. There had been previous suits between the parties over portions of the land and the defendants had got judgments (exhibits D1 and D2) over portions of the land the areas of which were not clearly defined with reference to a plan–from a 1952 arbitration of the General Purposes Committee of the Egbado-Ketu Grade A Court in Suit No. 30/1952 (exhibit D1). Relying on the two decisions the defendant’s people of Ijako-Orile pleaded res judicata which the High Court rejected. In spite of the two decisions, the High Court said it was satisfied that the plaintiffs were the owners of the land and the defendants their tenants, but held that the defendants could not be ejected from the land having occupied the land for a very long time.

On appeal the Supreme Court (Brett, Taylor and Bairamian JJ.S.C.) held that although true that the exact area in dispute in exhibits D1 and D2 was not ascertained with certainty, the effect of granting declaration of title to the plaintiffs of Awaiye Village was to grant them title to an area which includes portions over which the Ijako-Orile people had successfully asserted their ownership in exhibits D1 and D2. The Supreme Court, therefore, while holding that the defence plea of res judicata must fail, decided that in a claim for declaration of title to land, if the defendant is able to adduce evidence, oral or documentary, which has the effect of discrediting the plaintiff’s evidence, such a declaration should be refused–the making of a declaratory order being one with in the discretion of the trial Judge.

The Court of Appeal (per Okagbue, J.C.A.) in discussing Ogundairo v. Okanlawon, held as follows:

“In Ogundairo v. Okanlawon (1963) 1 All NLR 358 a previous judgment over an area in dispute was obtained. The area was uncertain. In a subsequent suit by the unsuccessful party over an area including the uncertain area involved in the previous judgment, the successful party in the earlier suit pleaded res judicata. The learned trial Judge rejected the plea because the area involved in the previous judgment was uncertain. A very strong panel of the Supreme Court did not share this view and therefore reversed the judgment.”

With the greatest respect to the Court of Appeal, the Supreme Court was not, in that case, of a different view from the High Court that the defence plea of res judicata should be rejected. It clearly decided that the plea failed, but went further to decide that, for the other reason, namely that the plaintiff’s case had been effectively discredited by the evidence adduced by the defendant, the plaintiff’s claim must be dismissed.

Coincidentally, the judgment of the Supreme Court on 2nd December 1963 in Ogundairo v. Okanlawon was delivered by Taylor, J.S.C.–the same judge who gave the decision, as a High Court Judge, in Ibiyemi v. Olusoji (1957) WRNLR 25 on 17th December 1956 referred to by the Court of Appeal. Nothing he said in Ogundairo can be taken as reversing the principle which he enunciated at Ibiyemi. What Ogundairo decided was simply this: that by reason of the judgments which the defendant obtained in exhibits D1 and D2 over unspecified portions of the large area of land forming the subject-matter of the present dispute, the plaintiff cannot be granted declaration of title, as the High Court did, in respect of that large area of land because to do so would amount to granting the plaintiff declaration of title over the portions covered by exhibits D1 and D2 in respect of which the defendant had already got title as evidenced by those two exhibits and therefore, to that extent, the plaintiff’s claim had been effectively discredited, the consequences of which would be a dismissal of his case.

The most lenient treatment the plaintiff’s 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 principles laid down in many decided cases including Okon Owon v. ETO Ndon and others (1946) 12 WACA 71; Josiah Sobanjo v. Adesina Oke and another (1954) 14 WACA 593. 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, and 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 the plan exhibit 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.

But the plaintiff does not necessarily succeed in his claim for declaration of title even though this point has been resolved in his favour, by reason of another hurdle standing in his way, namely, the question of issue estoppel. The plaintiff’s case was predicted on a platform of traditional history which his predecessor gave before the Owo Grade B Customary Court in May 1972, and the plaintiff repeated before the Owo Grade A Customary Court in March 1974.

According to his genealogical chart one Aro Adekoya was his ancestor and he came from Akungba and there met Olulura from whom he got a piece of land, namely, the land in question. Thereafter Aro Awodeyi, Aro Atangbeela, Aro Orija, and two other Aros whose names he had forgotten, successively possessed the land in dispute as descendants of original Aro Adekoya. The plaintiff swore that he himself was a direct son of Aro Orija and his ownership of the land in dispute stemmed from that relationship. Under cross-examination, in exhibit B, the plaintiff categorically stated

“I am the only male child of Aro today.”

His first witness was one Jacob Adetokunbo who swore that the first Aro was one Adekoya who came to Aratun with many followers. Under cross-examination by the defendant he stated

“I am far relation, the plaintiff is the only direct son of Aro today.”

In an apparent contradiction of himself in the very next breath he said

“the plaintiff also is a relation and not direct son of Aro.”

The defendant who was a descendant of Oronnaiye, denied the genealogy as given by the plaintiff and asserted that Aro Orija died without issue and that was why his funeral ceremony was performed by them as maternal relations. The Owo Grade B Customary Court, in its judgment dated 22nd May 1972, resolved that issue and held that Aro Orija died childless and that his farm land (according to the Owo custom for the distribution of the estate of an intestate who died without issue) went to the Oronnaiye descendants because Orannaiye was the “uterine” brother of Aro Orija. In the words of the court,

“After carefully studying this case, we agree that a camp was established, very long ago by the first Aro Adekoya in a place then known and called Ulura. Six Aros became camp-heads in that Aro camp. The last (sixth) Aro–Aro Orija became Aro. He invited his uterine brother (Oronnaiye) to dwell with him. It would appear that the father of plaintiff is a paternal relative of Aro Orija. We agree that when Aro Orija and Oronnaiye lived together on this farm land, it is not impossible that a new camp was established but whatever the case, it was in or near the former one. It was then named (sic) Aratun. Aro Orija died without issue, therefore his farm land etc, according to Owo custom of the distribution of the estate of a man who died intestate and without issue, normally went to Oronnaiye his uterine brother. We also noted that Oronnaiye was a grandson of Aro Awodeyi the father of Aro Orija, and plaintiff was also Aro Awodeyi’s grandson. This fact also confirms the suitability of the inheritance to go to Oronnaiye. Ever since the death of Aro Orija, there had never been any Aro in that area. The chieftaincy became extinct (sic) and we believe there is no next of kin to take up the title. The father of plaintiff was never an Aro, he (father) was titled IKORI a defendant title. For example, if we even agreed that the camp belonged to Aro, and Aro is extinct and then legacy goes by right to next of kin to Oronnaiye as seen above, and this office was held for over seventy years of No Aro and No objection, what ground and right has any court today to make a stemless tree to stand erect (sic) without a fall? Aro’s genealogy (sic) terminated with Orija over 70 years ago and Oronnaiye plus his three sons, one after the other ruled the said camp as the alaghere up to two months ago when the last died in the post. We believed that there was no challenge because, the ruling is by native right. Both plaintiff and defendant, we conclude, are next of kin to Aro but since one had been given the legacy for over 70 years, we deem it ridiculous to change the course of justice now.” (Italics mine.)

The basis for the plaintiff’s 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 Aro Orija never had a son, having died without an issue, the substratum of the plaintiff’s claim had gone and any claim made by him on the basis that he was the son of Aro Orija must necessarily 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. Although the Owo Grade B Customary Court held against the plaintiff and dismissed his case, it none-the-less recognised that the plaintiff was a close relation (though not a son) of one of the Aros and by reason thereof “should be tolerated in their camp.” The court, therefore, ordered that the plaintiff should remain in possession of the area in his occupation within the camp but dismissed his claim to ownership based upon his claim that he was a direct son of Aro Orija. This was what the court said in respect of possession:

“It has been established that Oronnaiye and his sons had been the recognised heads of this Aratun (4 of them in succession) and up to two months ago, but plaintiff is just making an attempt to see if he could seize power cunningly after these 70 years of dead silence. Up till now, nobody is holding the title of Aro in that area. We however conclude that the plaintiff being a close relation of one Aro although not a direct son of Aro as explained by 1st P/W, should be tolerated in the camp, but he, as we see it, cannot usurp the post of Alaghere from Oronnaiye’s sons who has (sic) double rights-a uterine brother of Aro Orija and a grandson of Aro Awodeyi.

The piece of land does not belong to the plaintiff as claimed therefore an injunction to restrain defendant from trespassing on the land has no footing, therefore it also fails.

Case dismissed.”

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 made available, in the previous proceedings. (See: Mills v. Cooper (supra) at 104).

The same principle applies to arbitration, as has been decided in fidelitas shipping co. Limited v. V/O Exportchled (1966) 1 QB 630. At 640 Lord Denning M.R. explained the principle thus:

“That issue having been decided by the court, can it be reopened before the umpire? I think not. It is a case of “issue estoppel” as distinct from “cause of action estoppel” and “fact estoppel,” a distinction which was well explained by Diplock L.J. in Thoday v. Thoday. The law, as I understand it, is this: if one party brings an action against another for a particular cause and judgment is given upon it, there is a strict rule of law that he cannot bring another action against the same party for the same cause. Transit in rem judicatam: see King v. Hoare. But within one cause of action, there may be several issues raised which are necessary for the determination of the whole case. The rule then is that, once an issue has been raised and distinctly determined between the parties, then, as a general rule, neither party can be allowed to fight that issue all over again. The same issue cannot be raised by either of them again in the same or subsequent proceedings except in special circumstances, see Badar Bee v. Habib Merican Noordin, per Lord Macnaghten. And within one issue, there may be several points available which go to aid one party or the other in his efforts to secure a determination of the issue in his favour. The rule then is that each party must use reasonable diligence to bring forward every point which he thinks would hemp him. If he omits to raise any particular point, from negligence, inadvertence, or even accident (which would or might have decided the issue in his favour), he may find himself shut out from raising that point again, at any rate in any case where the self-same issue arises in the same or subsequent proceedings. But this again is not an inflexible rule. It can be departed from in special circumstances.”

Diplock, L.J., at 642, was of similar view and commented, inter alia, that

“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 which contain provision enabling one or more questions (whether or 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 subsequently in the same 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 adduce 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.”

This Court (Elias, C.J.N., Coker and Sowemimo JJ.S.C.) cited with approval the Fidelitas Shipping Co. Limited case (supra) in Y. A. Lawal v. Chief Yakubu Dawodu and another (1972) 1 All NLR (Pt.2) 270 at 282 and applied the principle to refuse that a lower court should be allowed to change front by holding, in its final judgment, that a decision which it had earlier given saying that a judgment of 1900 (exhibits E and J) was in respect of the same land (or part of it) as was then being litigated before him, was not res judicata and that exhibits E and J no more concerned the land. This Court put the refusal in these words:

“We are clearly of the view that the learned trial Judge was not entitled, as he thought he was, to alter the effect of his own ruling on the issue previously decided by him in the course of the same proceedings in favour of the plaintiffs. The judgment, exhibit E, concerns the land known as Muwo which, according to the learned trial Judge himself, was part and parcel of the land at present in dispute between the parties. That judgment was against the present defendants and was in favour of the present plaintiffs.”

So established is “issue estoppel” in the laws of the common law countries that it has been held that where a final decision of an issue has been made by a criminal court of competent jurisdiction, it was a general rule of public policy that the use of a civil action to initiate a collateral attack on that decision was an abuse of the process of the court, unless there was fresh evidence. Hunter v. Chief Constable Of West Midlands Police (1981) 3 WLR 906.

And so, in the present appeal, the issue whether Aro Orija had a child or died childless has been settled by a court of competent jurisdiction–namely, the Owo Grade B Customary Court–since 1972, once and for all times. The issue cannot now be allowed to be reopened. And, therefore, the appellant seeking to establish his ownership of a piece of land on the basis of inheritance as being a surviving son of Aro Orija must, as I have earlier stated, necessarily fail.

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 are 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 plaintiff’s 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 on appeal. Deservedly, the claim should be dismissed whether in respect of the area verged yellow only on the principle of res judicata, or in respect of the balance of the area verged pink on the principle of issue estoppel.

As I have already said the Court of Appeal was wrong in holding that res judicata applied to the entirety of the land verged pink in the plan exhibit A; it should only have been made to apply in respect of the area verged yellow. The practical result, however, is the same, as the appellant’s claim must be dismissed up on a consideration of both principles.

Accordingly, this appeal must, for reasons different from those given by the Court of Appeal, be and is hereby dismissed. The judgments of the Owo Grade A Customary Court dated 28th June 1974 and the Akure High Court of Ondo State dated 20th July 1978 are hereby set aside. To that extent the judgment of the Federal Court of Appeal dated 29th April 1981 is hereby affirmed.

The respondent is entitled to costs which are hereby assessed at N300.000

H. A. Lardner, S.A.N. (with him J.O. Ige) for the Appellant.

A. O. Fesobi for the Respondent.

Sowemimo, J.S.C. I have read in draft the judgment just delivered by my learned brother, Aniagolu, J.S.C., and I agree that for the reasons stated by him in the judgment this appeal must be, and is hereby, dismissed. I also agree with the consequential orders made by him including his order for costs.

Bello, J.S.C. I had the opportunity of reading in draft the judgment delivered by my learned brother, Aniagolu, J.S.C. For the reasons stated by him, I agree the appeal should be dismissed and the judgment of the Federal Court of Appeal be affirmed with costs as ordered by Sowemimo, J.S.C.

Idigbe, J.S.C. I have had a preview of the judgment just read by my Lord, Aniagolu, J.S.C. with which I am in complete agreement; and for the reasons therein stated I would dismiss this appeal. I endorse the orders in the said judgment.

Obaseki, J.S.C. I have had the advantage of a preview of the judgment delivered a short while ago by my learned brother, Aniagolu, J.S.C. and found myself in complete agreement with him on all issues raised in this appeal. The issue of the inapplicability of the plea of res judicata to defeat the appellant’s claim raised in this appeal was comprehensively dealt with by my learned brother. He has also dealt with the place of issue estoppel in the matter.

Despite the failure of the respondent to establish the plea of res judicata, the above facts actually decided by the issue raised in the previous proceedings shown in exhibit B cannot again be litigated. The appellant is, in my view, estopped and precluded from contending the contrary.

That being so, the case put forward by the appellant was totally discredited and ought to have been dismissed on that ground.

In the case of Yaw Duedi v. Evi Yiboe (1961) 1 WLR 1040 Lord Hodson delivering the judgment of the Privy Council said at 1045 on the question of Issue Estoppel:

“There being no question in their Lordships’ opinion the issue of ownership was raised and decided in the earlier proceedings, and that the appeal from the magistrate was dismissed finally in the West African Court of Appeal the manner in which that court dealt with the submissions of Counsel and expressed itself in its judgment does not vitiate the proposition that the real issue has been finally adjudicated upon.”

As Romer, J. pointed out in Shoe Machinery Co. v. Cutlan (1896) 1 Ch 667, 670-671 in a passage cited by Van Lare Ag. CJ.

“It is not necessary, in considering the question of res judicata, that there should be an express finding in terms if, when you look at the judgment and examine the issues raised before the court, you see that the point came to be decided as a separate issue for decision, and was decided between the parties.”

Lord Romer, in delivering the judgment of the Privy Council in New Brunswick Railway Co. v. British and French Trust Corporation Limited (1939) AC1, 43 said

It is no doubt true to say that whenever a question has in substance been decided, or has in substance formed the ratio of or been fundamental to the decision in an earlier action between the same parties, each party is estopped from litigating the same question thereafter.” (Italics mine).

The death of Aro Orija without issue and the devolution of title to his estate on Oronnaiye was decided in favour of the defendant by Owo Grade B Customary Court and this should have earned the appellant dismissal of his action in the Grade A Customary Court.

For the above reasons and the reasons set out in the judgment of my learned brother, Aniagolu, J.S.C. I would also dismiss the appeal and I hereby dismiss it with N300.00 costs and affirm the decision of the Federal Court of Appeal.