SHEKONI V. OJOKO

• Pages: 251-254

SHEKONI V. OJOKO

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251

Appeal Allowed: Order of the High

Court set aside.

5

SHEKONI V. OJOKO

10 JOSEPH SHEKONI, the Elewu of Ewu

on behalf of himself and Ewu people



APPELLANT

V

CHIEF OGUNYEMO OJOKO

Successor to Oba Aro of Gogo

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on behalf of himself and Gogo

people.

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RESPONDENT

SUIT NO. FSC 405/1961

SUPREME COURT OF NIGERIA

TAYLOR,



J.S.C.

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BAIRAMIAN,



J.S.C.

MORGAN,



Ag. J.S.C.

31st October, 1963.

Civil Appeal - Claim for arrears of ?shakole" - Injunction to restrain party front

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going on land in dispute - Plea of res judicata - Onus of Proof

ISSUE:

1. On which party to an action does the onus of establishing a plea of

res judicata

lie.

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FACTS:

The plaintiffs, sued the defendants in the Native Court of Ekiti division for ar-

rears of lshakole for the years 1936 to 1950 and an injunction to restrain the de-

fendants from going on the land in dispute. The suit was transferred to the Benin

High Court and at the hearing, the defendants submitted that the suit be dismissed

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because the plaintiffs were estopped from bringing the action by virtue of a pre-

vious judgment. The plaintiffs contended that they were not estopped from ques-

tioning the title to the land because they had already appealed from the previous

judgment.

The trial Judge upheld the plea of

res judicata

and dismissed the action. On

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appeal, to the West African Court of Appeal, the plaintiffs appeal was allowed and

the suit was remitted to the Court below to be adjourned

sine die

with liberty to

either side to apply for a new hearing date. The suit was re-listed and after hear-

ing the evidence on both sides, the trial Judge dismissed the plaintiffs action and

upheld the defendants plea of

res judicata.

The defendant did not tender any evi-

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dence to prove or establish their plea. The plaintiffs appealed to the Supreme

Court.

HELD:

1. That the onus of establishing a plea of

res judicata

lay squarely and fairly on

the shoulders of the party who seeks to rely on it, in this case, the defendants.

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2. That since they failed to adduce all the necessary evidence to establish the plea,

it must fail. That the judgment of the Court below be set aside and the case be

remitted to the High Court for a new trial with another Judge with liberty to both

parties to deliver fresh pleadings.