KUSE V. THE STATE

• Pages: 248-254

248

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NIGERIAN SUPREME COURT CASES

[1969] N.S.C.C.

party. Where, however, such is not the case a previous judgment can only be used

in limited circumstances allowed by law. (See the observations of the Federal Su-

preme Court in

Pade v Aborishade

[1960] 5 F.S.C. 167 at 173).

In the present case the learned trial Judge had dismissed the plaintiff's case on

the ground that the plaintiff was estopped from bringing the action

per rem Judi-

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5

catam.

For this plea to succeed and, as rightly indicated by learned counsel for

the defendants, there must be at least indentity of parties (or privies) and indentity

of subject-matter, those who merely stood by during the earlier litigation when they

should not have done so may be estopped from re-litigating the same subject-mat-

ter by conduct but certainly not by

res judicata.

Previous judgments are very often

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10

usefully pleaded and employed in the conduct of subsequent litigation but the use

of them must be confined to areas where the law allows them to be used.

We have not, in view of the conclusions at which we have arrived on this point,

considered the issue whether or not the subject- matter of the present action is the

same as that of any of the previous actions. We do not doubt that the Judge erred

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15

in holding on the evidence before him that the plaintiff was estopped

per rem judi-

caram

by the judgment to which he referred.

The appeal therfore succeeds and it is hereby allowed. The order of the Lagos

High Court made in Suit No.LD101/66, including the order for costs, is hereby set

aside. It is ordered that the case be remitted to the Lagos High Court for hearing

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20

de novo

before another Judge. The appellant is entitled to his costs of this appeal

which we fix at 114 guineas.

Appeal allowed: re-hearing

ordered.

25

KUSE

V. THE STATE

30

ORSHIOR KUSE



APPELLANT

V

THE STATE

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RESPONDENT

SUIT NO. SC 82/1969

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35

SUPREME COURT OF NIGERIA

COKER,



C.J.N.

LEWIS,



J.S.C.

FATAI-WILLIAMS, J.S.C.

27th June, 1969.

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40

Evidence - Dying declaration - Belief in approachiv death - Res Gestae -

Criminal Law and Procedure - Fitness to plead - Criminal Procedure Code

s.320(1).

45

ISSUES:

1.

Whether the statement of an accused that "he could not remember anything that

happened that thy except the killing," is enough to require a Judge to carry out

an investigation under s. 320(1) of the Criminal Procedure Code.

2.

Whether the High Court in Benue Plateau State can rely on English practice and

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50

procedure in criminal matters.

3.

Whether a trial Judge is entitled to admit a statement as a dying declaration,

after finding as a fact, that the deceased believed that he was going to die when

making such statement.