EGORO & ORS. V. KOMANI & ORS.

• Pages: 100-105

100

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NIGERIAN SUPREME COURT CASES

[1968] N.S.C.C.

EGORO & ORS. V. KOMANI &

ORS.

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5

EYIBODOGHA EGORO AND OTHERS

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PLAINTIFFS/APPELLANTS

V

KOMANI AND OTHERS

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DEFENDANTS/RESPONDENTS

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10

SUIT NO. SC 166/66

SUPREME COURT OF NIGERIA

COKER,

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J.S.C.

LEWIS,

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J.S.C.

MADARIKAN,

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J.S.C.

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15

5th April, 1968.

Equitable Remedies - Civil Appeal - Estoppel Res Judicata - Customary Appeal

Court hearing one side in the absence of the other and giving judgment -

Subsequently allowing appeal for case to be re- opened on application of

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party not heard - Effect - To set aside earlier judgment which cannot be

relied on as res-judicata.

ISSUES:

1.

Where judgment on appeal was given in default of appearance, can the appeal

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25

be re-opened after judgment; and if so, what is the effect.

2.

Whether an earlier judgment that has been set aside, can be relied on as

res

judicata.

FACTS:

The plaintiffs (present appellants) brought a suit, suit no. W/97/1956 against the

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defendants (present respondents) claiming a declaration of title to land, damages

for trespass and an injunction. The defendants brought as plaintiffs suit no.

W/122/1956 against the present plaintiffs as defendants, claiming damages for

-

trespass and an injunction. The two suits were consolidated in the Warri High Court.

In suit W/97/1956 the respondents pleaded

res judicata

in respect of the claim in

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their statement of defence, and when the consolidated actions came for hearing,

counsel for both parties agreed that the issue of

res judicata

should first be dealt

with. The plea applied to an area of land which was also claimed by the respond-

ents in suit W/122/56. The respondents in pleading

res judicata

relied on the judg-

ment on appeal in the Western jaw Court of Appeal from the decision of the

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Akugbene District Court dismissing a claim for declaration of title brought by Ko-

mani and others against Okili and others. Only the plaintiffs as appellants appeared

before the Western ljaw Court of Appeal and the court gave judgment for them.

However, the decision of that court was not final, as some four years later the mat-

ter was re-opened upon the defendants' application, and the court ordered the ap-

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peal suit to be reopened and the defendants to pay reopening fee which they paid.

Nothing happened after that and the court did not deal in any way with the reop-

ened appeal. The H'gh Court Judge ruled that the previous judgment of the West-

ern Ijaw Court of Appeal had not abated or been set aside by the re-opening of

the case. The present plaintiffs appealed to the Supreme Court against this ruling.

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HELD:

1. An appeal may be re-opened after judgment where one side did not appear

before judgment. On re-opening the

audi alteram partern

rule means that the

argument startsde

novo

with the appellant beginning even if the previous default