OPUTA V. EZEANI

• Pages: 114-117

114



NIGERIAN SUPREME COURT CASES

[1963] N.S.C.C.

OPUTA V. EZEANI

5

ADAM OPUTA (also known as

OPUTA OKEYA) of Ndoni

V

OKWEI EZEANI (for herself and

on behalf of the EZEANI Family

of Ndoni)

FEDERAL SUPREME COURT.

BRETT,



F.J.

TAYLOR,



F.J.

BAIRAMIAN,



F.J.

20th March, 1963.

APPELLANT

RESPONDENT

SUIT NO.FSC 300/1961

10

15

20

Civil Actions - Appeals in civil cases - Appellant raising a point for the first

time on appeal - Point abandoned at trial.

Equity - Estoppel - Res Judicata - Estoppel by Conduct - Ambiguous plea of

estoppel in reference to a previous judgment - Evidence.



25

ISSUES:

1.

Can estoppel by conduct operate against a plaintiff whose tenants were sued

without her knowledge in an earlier case by the present defendant?

2.

Whether a Native Court judgment can operate as

res judicata

against an action



30

brought in the High Court by a plaintiff who was not a party to the suit in the

Native Court.

3.

How will an appeal court react to a point pleaded but deliberately omitted from

argument in the court below.

FACTS:



35

The plaintiff had sued the defendant's father in the High Court for trespass to

her land; he died in 1956 and her action lapsed. The defendant sued some per-

sons in the Native Court for trespass, who said they were her tenants; he obtained

judgment in December, 1956. She heard of the case and told the clerk about her

own suit; and in January, 1957, the Native Court case was transferred to the High



40

Court. In May, 1957, she brought the present suit against the defendant for tres-

pass. The transfer of the Native Court case was invalid, and the judgment remained

effective. The defendant referred to that judgment in the Defence and said that he

would "rely on it at the hearing"; at the hearing he referred to it and argued that the

plaintiff had stood by while her tenants fought the question of her title and thus was



45

estopped by her conduct. The High Court rejected this argument, and on the evi-

dence gave judgment for the plaintiff.

On appeal the defendant relied not so much on estoppel by conduct, but rather

on that judgment as res judicata on the ground that the Native Court case related

to the same subject matter and the same parties", and cited

Onisango v. Akinkun-



50

mi

W.R.N.L.R. 1955-6, 39, 40, which relies on a passage in Phipson (9th ed.) p.430,

that the term 'parties' includes also 'those who had opportunity to attend the pro-

ceedings'- a passage for which the author cites

Wakefield v. Cooke

(1904) A.C.