When Plea of Res Judicata Will Arise in a Subsequent Case

In the Supreme Court of Nigeria
Holden at Lagos
On Thursday, the 18th day of July, 1991

Before Their Lordships
Muhammadu Lawal Uwais
Adolphus Godwin Karibi-Whyte
Philip Nnaemeka-Agu
Ephraim Omorose Ibukun Akpata
Bolarinwa Oyegoke Babalakin

Justices, Supreme Court
SC.226/1988

Between

1. Sylvester Ezekpelechi Ukaegbu
2. Udogbe Ediogu
3. Michael Onwuka
4. Ezeamuzie Egbumba
5. Gabriel Ezegbucha
6. James Okale Appellants/
7. Umuaeluekwe Ezeakune Cross Respondents
(For themselves and on behalf of the
Okpokpo Akpulu and Ubaha Akpulu People)

And

1 Duru Ononanwa Ugoji
2. Nduechekwa Ogbukara
(For themselves and Mbaeru
Isieke Village, Akpulu) Respondents/Cross-Appellants
3. Raphael Offor
4. Michael Anyeke Respondents to the Cross-Appeal

(Lead Judgement delivered by Honourable Bolarinwa Oyegoke Babalakin, JSC)
Facts
By a Writ of Summons issued at the High Court of Imo State, Orlu (then Okigwe Judicial Division of the former East Central State of Nigeria), the 1st and 2nd Respondents/Cross-Appellants (as Plaintiffs), instituted an action against the Appellants and the Respondents to the cross-appeal (Defendants at the High Court). By their claim, they sought a Declaration of title to the piece of land at Isieke Village, Akpulu; N400.00 general damages for trespass; and an Order of Perpetual Injunction restraining the Appellants, their servants, and agents from further acts of trespass on the land. Specifically, paragraph 7 of the Statement of Claim, and the subject of the appeal, was to the effect that about the year 1928, the 1st Defendant’s father – Ukaegbu, in collusion with a certain Nwaizunwa, instituted an action against the present Respondents/Cross-Appellants (as Defendants therein), at the Mbanasa Native Court in Suit No. 172/28, claiming possession of and alleging that the Ala Odinude Ngwo land in dispute, was pledged to him by the Nwaizunwa, a close relation of the present 2nd to 5th Appellant. The court, in that suit, dismissed the claim, and upon a review by the District Officers on appeal, the present Respondents/Cross Appellants were ordered to refund the pledged money to Ukaegbu, while they retain possession and ownership of the land. They went ahead to plead that the judgement in the referenced suit would be founded upon at the trial. The Appellants joined issues with the Respondents/Cross-Appellants on the claims. At trial, the said judgement of the Native Court was admitted as Exhibit C. The trial court, in the present suit, granted the claims against the Appellants, but dismissed the claims against the Respondents to the Cross-appeal.

The Appellants appealed to the Court of Appeal, Enugu, while the Respondents/Cross-Appellants filed a Cross-appeal against the decision of the trial court dismissing their case against the Respondents to the Cross-appeal (7th and 8th Defendants at the trial court). After a consideration of the appeals, the Court of Appeal dismissed both appeals. Hence, the further appeal and Cross-appeal to the Supreme Court.

Issues for Determination
Main appeal:

1 Whether in an action for declaration of title to land, damages for trespass and injunction, a previous judgement pleaded by the Plaintiff in his Statement of Claim could sustain a plea of res judicata in favour of such Plaintiff.
2(a) Whether the Court of Appeal was right in its view that, it is a mere irregularity to raise a plea of res judicata in the Statement of Claim.
If the answer to 2(a) above is in the affirmative (which is not conceded);
2(b) Whether, on the peculiar facts and circumstances of the case, the Appellants herein could be said to have waived their right to complain about the said irregularity.

Cross-appeal:
Whether the Court of Appeal failed or neglected to consider the case submitted for its consideration by the Cross-Appellants, and if so, whether the said failure by the court occasioned a miscarriage of justice, such that the judgement cannot be allowed to stand.

Arguments
The Appellants contended that the trial court and the Court of Appeal were wrong to have held that the Respondents/Cross-Appellants (as Plaintiffs) could plead the judgement of the Mbanasa Native Court in their Statement of Claim, and rely on it as res judicata in determination of the declaration of title and ownership of the land in dispute. Counsel submitted for the Appellants that a plea of res judicata, cannot be raised in the Statement of Claim. He relied on the decision in SALAWU YOYE v OLUBODE (1974) 1 All NLR (Pt. 2) 118. Counsel argued further that the Court of Appeal was in grave error to have regarded the plea of res judicata raised in the Statement of Claim as a mere irregularity, which the Appellants (as Defendants at the trial court) had waived by their continued participation in the case after issues had been settled. He posited that default by the Respondents/Cross Appellants in pleading res judicata in their Statement of Claim, strikes at the very essence and nature of that plea, as a successful plea of res judicata robs the court of jurisdiction to determine a suit.

Responding to the submissions above, Counsel for the Respondents/Cross-Appellants argued that Sections 53 and 54 of the Evidence Act, permit parties to plead previous judgements obtained in their favour in a subsequent action. Relying on the decision in CHINWENDU v MBAMALI & ANOR. (1980) 3-4 SC 31 at 47-48, he submitted that the position of law has since been settled that,r although a plea of estoppel is a shield for the protection of a Defendant, it can also validly be employed as a sword by a Plaintiff. As Exhibit C (judgement of the Native Court) pleaded raised estoppel per rem judicatam against the Appellants, the lower courts were bound to give effect to the said proceeding and judgement. Commenting on the authority relied on by the Appellants, counsel contented that a Plaintiff who has a previous judgement in his favour, cannot be barred from pleading such judgement in subsequent action. He argued that it was not too late for the Appellants, to raise the issue of pleading res judicata in the Statement of Claim.

Regarding the Cross-appeal, counsel submitted that the Court of Appeal was wrong to have neglected the consideration of the grounds of appeal in the Cross-appeal distinct from the grounds of appeal in the main appeal, and that the appellate court only relied on its conclusions in the main appeal, in coming to the decision in the Cross-appeal by dismissing the Respondents/Cross-Appellants’ appeal. He argued that this occasioned a miscarriage of justice to them. Reacting to the submission, Counsel for the Respondents to the Cross-appeal argued that it was a misconception on the part of the Cross-Appellants to contend that the Court of Appeal failed to consider their grounds of appeal. He argued that the appellate court did consider them, and found that the grounds of appeal were directed at findings of facts by the trial court. And that the Cross-Appellants failed to adduce sufficient reasons, to make the Court of Appeal interfere with the findings of the trial court.

Court’s Judgement and Rationale
Deciding the main appeal, their Lordships stated that the germane issue for consideration in the appeal, is that in any action for declaration of title, damages for trespass and injunction, a Plaintiff cannot plead a previous judgement as res judicata in a Statement of Claim. In this respect, the court referenced the provisions of Section 54(1) and (2) of the Evidence Act, which enables a party to a proceeding to plead a previous judgement as res judicata in a Statement of Claim. Elucidating on the principle of Res judicata and estoppel, the learned Justice of the Apex Court held that a plea of res judicata will arise where the Plaintiff, who is pleading the previous judgement was the Plaintiff in the said previous judgement, or his privy in title were Plaintiffs in the previous judgement relied upon. On the other hand, the pleading would be estoppel, where the Plaintiff or his privy in title was Defendant in the case pleaded as estoppel as in CHINWENDU v MBAMALI & ANOR. (supra) and in the present case.

By paragraph 7 of the Statement of Claim and Exhibit C, what the Respondents/Cross-Appellants pleaded was estoppel and not res judicata. The trial court however, in framing the issues for its determination, mistook the pleading in the said paragraph as a plea of res judicata. The Court of Appeal fell into similar error, contrary to the lucid explanation of the Apex Court above, that as Defendants in Exhibit C, the pleading of the Respondents/Appellants as Plaintiffs in the present suit, can only be an estoppel. One cannot hold on to the erroneous formulation of issues, which puts what counsel for the Respondents/Cross-Appellants pleaded in the Statement of Claim as res judicata. Having found that the Respondents/Cross-Appellants pleaded estoppel and the trial judge made use of the judgement as such, the summing up of issues which stated same to be res judicata becomes a mere wrong use of words which is a technicality, and that should not be allowed to becloud the justice of this case so ably x-rayed by the trial court and the Court of Appeal.

The court held further that a plea of res judicata is a shield for the protection of the Defendant, and generally pleaded by the Defendant as a bar to subsequent proceedings by the Plaintiff on the same issue, and between the same parties or their privies. The modern trend however, as exemplified in recent judicial decisions is that “… although the plea of estoppel is a shield for the protection of the Defendant, it can also validly be employed as a sword by a Plaintiff.” An estoppel, which includes per rem judicatam, can be raised to show the awareness of the Plaintiff of a previous litigation between the parties which he intends to rely upon, thus, preparing his ground for a reply in the event of the Statement of Defence seeking to rely on the same estoppel – LADEGA & ORS. v DUROSINMI & ORS. (1978) 3 SC. 91.

Regarding the Cross-appeal, their Lordships held that the allegation that the Court of Appeal did not consider the grounds of appeal in the Cross-appeal, distinct from the main appeal, is not supported by any discernible evidence on record to warrant an interference by the Apex Court. There was evidence before the trial court, which it believed, that the portions of land belonging to the Respondents to the Cross-appeal has never been the subject of any dispute.

Appeal and Cross-Appeal Dismissed.

Representation
Chief Chimezie Ikeazor, SAN, with Chief Ume Ezeoke, Mr. Obi Akpudo and Mrs. Uju Ikeazor for the Appellants/Respondents to the Cross-Appeal.

G.R.I. Egonu, SAN with Mr. B.E.E. Nnamdi for the Respondents/Cross-Appellants.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)