IN THE SUPREME COURT OF NIGERIA
On thursday, the 9th day of March 1978
SC 399/7
Between
SAMUEL FADIORA ALADE IN RESAMUEL ......................... APPELLANT
And
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.
HELD:
(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.
Appeal dismissed.
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 eviden