AFEAUGBO V. IGWE & ORS.

• Pages: 117-122

AFEAUGI30 V. IGWE & ORS,

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117

ment

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

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of the decree brought another suit against them, again in regard to their adminis-

tration. Later still, the plaintiff in the second suit obtained leave to attend the pro-

ceedings 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.

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It is clear that those English cases do not warrant the general proposition stated

in

Onisango v. Akinkunmi,

which cannot be treated as an authority for a rule of

general application on

res judicata.

As regards

Olabiyi v. Abiona,

the following passage in the judgment, at p.127

of the report, shows that this case is clearly distinguishable on the facts -

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"It must be borne in mind that in Suit No. 60/38 it is not a case of the ordinary

man in the street if I may so call him, suing on behalf of a people or community,

it is a case of an Oba, a native ruler, who by decided cases has been held to

be the trustee (using that term loosely) of the land for his people, suing for and

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on behalf of the people.

I

therefore hold that the present plaintiffs were privies

to the previous Suit No. 60/38."

Neither of the cases relied upon by Mr. Alele supports the plea of

res judicata

in the case in hand.

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As regards estoppel by conduct. I have already said that

I

agree with the trial

Judge. The respondent was the first to institute proceedings raising the issue as

to the title to the land, and it seems a reasonable inference that the abortive attempt

to transfer the case was made in consequence of what she told the clerk of the Na-

tive Court.

I

do not see how she could fairly be said to have stood by while others

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fought the question of title, and

I

would dismiss the appeal with costs assessed at

18 guineas.

Appeal dismissed.

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AFEAUGBO V. 1GWE & ORS.

40 NGWU NWANONO AFEAUGBO & c. ORS.

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APPELLANTS

V

JAMES IGWE & 2 ORS.

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RESPONDENTS

SUIT NO.FSC 60/1962

FEDERAL SUPREME COURT, NIGERIA

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BRETT,

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F.J.

TAYLOR,

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F.J.

COKER, Ag.

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F.J.

21st March, 1963.

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Civil Actions

-

Appeals - Claim for declaration of title.

Tort - Damages for trespass - Injunction - cross-action - Both suits consolidated.