ODUKA & ORS V. KASUMU & ANOR

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290

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NIGERIAN SUPREME COURT CASES

[1967] N.S.C.C.

ODUKA & ORS V. KASUMU & ANOR

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MORINATU 0. ODUKA AND OTHERS

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APPELLANTS

V.

A. KASUMU AND ANOTHER

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RESPONDENTS

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10

SUIT NO. SC 583/1965

SUPREME COURT OF NIGERIA

BAIRAMIAN,

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J.S.C.

COKER,

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J.S.C.

LEWIS,

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J.S.C.

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15th December, 1967

Civil Action - Practice and Procedure - Pleadings - Res judicata - Both panics

relying on same judgment; effect - Amendment so as to plead subsequent

judgment

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Estoppel - Res judicata - Extent of 'natters previously decided Judgment as

estoppel in previously instituted proceedings

Legislation - Evidence Act, section 53.

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ISSUES:

1.

Where each party pleads and relies on a previous judgment as estopping the

other from relitigating issues decided in that case, does such a fact need further

proof at the existing trial?

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2.

Whether the fact that the proceedings in which a particular judgment is relied

on as

res judicata

were instituted before or after that judgment was given is

relevant in deciding whether the rule of estoppel

per rem judicatam

applies to

the pending proceedings.

3.

Whether a party may amend his pleadings to plead such a judgment in bar

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(such judgment having been given during the pendency of the action).

FACTS:

The plaintiffs/respondents, the Bashuas claimed a declaration in the High Court

that the Bashua family were the owners under native law and custom of the land in

dispute, situated at Bashua village. They alleged that one Oduka who several years

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earlier exercised dominion over Bashua village land and sold portions of it, had

done so as head of the Bashua family, which included the defendant's branch (the

Odukas). In defence the Odukas claimed that he did so as head of a separate

Oduka family. Each side relied on the judgments in suit No.7

4

/

1

926 as estopping

the other.

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In that suit one of the purchasers from Oduka claimed a declaration of title

against some members of the Bashua family, who contended that Oduka did not

obtain the family's consent before selling the portion in dispute. The Divisional

Court which tried the case (without expressly stating that the Bashua family were

the owners) decided that Oduka had obtained the necessary consents and the full

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court upheld that decision, referring to the Bashua family as the owners.

The trial Judge in the present suit gave judgment for the plaintiffs (the Bashuas)

and counsel for the Odukas submitted on appeal that the parties and the issues

were not the same. He argued further that the Divisional Court judgment did not