ARO V. FABOLUDE

• Pages: 43-54

ARO V. FABOLUDE

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43

ARO V. FABOLUDE

5

AMOS OGBESUSI ARO

V

10 SALAMI FABOLUDE

SUPREME COURT OF NIGERIA

SOWEMIMO,



J.S.C.

BELLO,



J.S.C.

15



IDIGBE,



J.S.C.

OBASEKI,



J.S.C.

ANIAGOLU,



J.S.C.

4th February, 1983

APPELLANT

RESPONDENT

SUIT NO. SC 106/1981

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Estoppel - Res judicata - Issue estoppel - Claim for declaration of title.

ISSUES:

1. Whether a previous decision over a small parcel of land is

res judicata

over a

subsequent action on a larger parcel of land embodying the smaller one.

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2. Whether a root of title rejected in a previous suit can be relied upon to claim

title in a subsequent suit. Whether this situation constitutes

issue estoppel.

FACTS

Early in 1972, the plaintiff's predecessor sued Salami Fabolude (the present

defendant) in the Owo Grade 'B' Customary Court, claiming ownership of the land

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in dispute and an injunction. His claim was dismissed. Later that year, the present

plaintiff also sued the defendant claiming ownership of a parcel of land which in-

cluded the land in dispute in the previous action. The action was taken in the Owo

Divisional Grade 'A' Customary Court and they tendered a plan, Exhibit A. The de-

fendant pleaded

res judicata

based on the previous case but the trial Judge re-

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jected the plea and gave judgment for the plaintiff. The defendant appealed to the

High Court which upheld the judgment of the Owo Grade 'A' Customary Court.

The defendant further appealed to the Federal Court of Appeal which upheld the

plea of

res judicata,

set aside the decisions of the two lower courts and gave judg-

ment for the defendants.

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The plaintiff thus appealed to the Supreme Court contending that the plea of

res judicata

should have been upheld only in respect of the land in dispute in the

previous action [which was the area verged 'yellow' in the plan (Exhibit A) used in

the present case], since the present area in dispute (verged pink in the plan, Ex-

hibit A) was a large stretch of land of which the yellow portion formed only a small

45 part.

HELD:

1.

That the 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

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that small area only.

2.

The basis of the plaintiff's claim had been thrown overboard in the 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 he inherited the land as direct son

of the Aro Orija. Since the Grade

'B'

Customary Court in the 1972 judgment