The plaintiff had sued the defendant's father in the High Court for trespass to her land; he died in 1956 and her action lapsed. The defendant sued some persons in the Native Court for trespass, who said they were her tenants; he obtained judgment in December, 1956. She heard of the case and told the clerk about her own suit; and in January, 1957, the Native Court case was transferred to the High Court. In May, 1957, she brought the present suit against the defendant for trespass. The transfer of the Native Court case was invalid, and the judgment remained effective. The defendant referred to that judgment in the Defence and said that he would "rely on it at the hearing"; at the hearing he referred to it and argued that the plaintiff had stood by while her tenants fought the question of her title and thus was estopped by her conduct. The High Court rejected this argument, and on the evidence gave judgment for the plaintiff.

On appeal the defendant relied not so much on estoppel by conduct, but rather on that judgment as res judicata on the ground that the Native Court case "related to the same subject matter and the same parties", and cited Onisango v. Akinkunmi W.R.N.L.R. 1955-6, 39, 40, which relies on a passage in Phipson (9th ed.) at 430, that the term 'parties' includes also 'those who had opportunity to attend the proceedings'-a passage for which the author cites Wakefield v. Cooke [1904] A.C. 36, 38, and Askew v. Woodhead, 21 W.R. 573. The plaintiff did not object to the defendant's raising the point of res judicata in this way for the first time on appeal.

HELD:

These cases did not warrant the general proposition in Phipson on res judicata; and, as to estoppel by conduct, the plaintiff was the first to institute proceedings and could not fairly be said to have stood by while others fought the question of title in the Native Court.

OBITER:

The plea of estoppel in the Defence was worded in an ambiguous way, and at best it was in the court's discretion whether to allow the defendant to raise in his appeal a point he had pleaded but deliberately omitted from argument at the trial.

Hickman v. Kent or Romney Marsh Sheepbreeders' Association (1920) 37 T.L.R. 163.

Appeal dismissed.

Other cases cited:-

Ofori Atta v. Bonsra [1958] A.C. 95;

Olabiyi v. Abiona W.R.N.L.R., lgS5-56, 126.

APPEAL from the High Court of Western Nigeria.

J. Alele for the appellant.

F.O. Anyaegbunam for the respondent.

Brett, F.J.:-The action in which this appeal is brought, and which was tried as number W/73/1957 in the Warri Judicial Division of the High Court of the Western Region, turns on the title to a piece of agricultural land situate at Ndoni in the Aboh Division of Delta Province. The case for the respondent, who was the plaintiff in the High Court, is that the land has always belonged to her family; that when the appellant's father, Obi Oputa, was made a chief by the Government he obtained from her family a piece of land at Ndoni on which to build a residence, but continued to make use of his own farm land, some five miles away; and that later he, and the appellant after him trespassed on the agricultural land in question. The appellant claims that the land in question has always belonged to his family, and admits using it and putting tenants on it. On the evidence called before him the Judge found in favour of the respondent, and it has not been seriously argued that he was wrong, except in refusing to give effect to a plea of estoppel put forward by the appellant.

The facts bearing on this plea are as follows. In February, 1956, the respondent instituted proceedings in the High Court against Obi Oputa, claiming damages for trespass to the land now in question. Obi Oputa died some time in 1956 and the action lapsed. Also in 1956 the appellant, who claims to be the oldest member of his family, sued four persons in the Ndoni Clan Native Court for trespassing on the land in dispute, by cutting palm fruits. They claimed to do so as "tenants" of the respondent, and on the 10th December, 1956, judgment was given against them. The respondent, on hearing of the action, had told the clerk of the Native Court that she had instituted proceedings in the High Court in respect of the land, and on the 5th January, 1957, the Assistant Divisional Adviser purported to make an order under section 28(1)(c) of the Native Courts Ordinance, transferring the appellant action to the High Court for hearing and determination. The present proceedings were instituted on the 4th May, 1957, and on the 14th October, 1958, an order was made at the instance of the respondent consolidating the present proceedings with those in the transferred action for trial. The order of transfer was later held to be invalid, and in these circumstances the judgment of the Native Court remains effective. The question is whether it binds the respondent.

In the Statement of Defence, as amended, the appellant referred to the judgment of the Native Court and said that he would "rely on it at the hearing", which is an ambiguous expression, but the actual purpose for which his Counsel referred to the judgment at the hearing was to set up a plea of estoppel by conduct. He did not cite the decision of the Privy Council in Ofori Atta v. Bonsra [1958] A.C. 95, but he was invoking the principle accepted in that decision, that a person who has knowingly stood by while a subordinate fought the question of title in the same interest is estopped from litigating the matter afresh. The Judge held against him on the facts of the case, and I have no hesitation in agreeing with the Judge.

The grounds of appeal originally file do not allege an estoppel by conduct, but go further and allege that the judgment of the Native Court constituted res judicata since the former action "related to the same subject matter and the same parties." During, the hearing of the appeal Mr Alele obtained leave to file an additional ground of appeal which alleges estoppel by conduct, but he did so reluctantly, and at the close of his argument he apparently abandoned this ground of appeal and reverted to his former plea of res judicata.

As I have already said, the plea of estoppel in the Defence was worded in an ambiguous way, and at best it is in the discretion of this Court whether to allow the appellant to raise a point which was pleaded but deliberately omitted from argument in the court below: Hickman v. Kent or Romney Marsh Sheepbreeders Association (1920) 3 / T.L.R. 163. If the respondent had objected to the point's being raised we should have had to consider whether there was any reason why it should be allowed to be raised for the first time here. However, since no objection was made and the point was in fact argued, it may be well to deal with it.

In support of the plea Mr Alele relied on two cases-Onisango v. Akinkunmi, W.R.N.L.R., 1955-6, 39, at 40; and Olabiyi v. Abiona, ibid., 126.

From the judgment in the first case he quoted the following passage:-

"The term `parties' includes not only those named on the record, defendants becoming parties after service of the writ, but also those who had an opportunity to attend the proceedings (Wakefield v. Cooke [1904] A.C. 36, 38; Askew v. Woodhead, 21 W.R., 573)."

That is a quotation from Phipson, 9th edition, at 430; and it would seem that the learned Judge had not read the two English cases. The first of them related to a street, and the question was whether it had to be repaired by the inhabitants at large, or by those who dwelt along the street. It had been decided in an earlier case, under certain sections of the relevant Act, that the street had to be repaired by the inhabitants at large; and the decision in Wakefield v. Cooke was that the judgment in the earlier case, which decided the status of the street, was essentially a judgment in rem and that the question could not be raised again under the same sections of the Act. It is true that there are passages in the speeches of Lord Halsbury, L.C., and Lord Davey, to the effect that as the persons wishing to argue that the street should not be repaired by the inhabitants at large had been given notice in the previous proceedings to come in, the earlier judgment was virtually a judgment inter partes; and that seems to be what the learned author of Phipson had in mind, but in any event, there is no resemblance between that case and the one in hand. In Askew v. Woodhead the facts were these. There was a decree in a suit against trustees in regard to their administration. Later, someone who had notice of the decree brought another suit against them, again In regard to their administration. Later still, the plaintiff in the second suit obtained leave to attend the proceedings under the decree in the first suit. The defendants applied that the second suit be stayed; and it was stayed until the proceedings in the first suit should be concluded. That case also differs from the one in hand.