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CHIEF WINOKO EKPE, ETC.
V.
HEAD CHIEF ESIN ANTAI
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
24TH DAY OF JANUARY, 1944
2PLR/1944/16 (WACA)
OTHER CITATION(S)
2PLR/1944/16 (WACA)
(1944) X WACA PP. 19 – 22
LEX (1944) – WACA PP. 19 – 22
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
GRAHAM PAUL, C.J., SIERRA LEONE
BAKER, J.
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BETWEEN:
CHIEF WINOKO EKPE SUBSTITUTED FOR HEAD CHIEF ESEMANA ON BEHALF OF HIMSELF AND THE PEOPLE OF ATAYARA — Plaintiff-Respondent
AND
HEAD CHIEF ESIN ANTAI SUBSTITUTED FOR HEAD CHIEF BASSEY OKON ON BEHALF OF HIMSELF AND THE PEOPLE OF UDA — Defendant-Appellant
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REPRESENTATION
C. W. Clinton with J. E. David — for Appellant
E. E. E. Anwan — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW – LAND:- Trespass to land – Jurisdiction of the court thereto – Previous suit pled as res judicata – Where a default judgment – Whether could operate as a bar to the action – Relevant considerations
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PRACTICE AND PROCEDURE ISSUE(S)
ESTOPPEL:- Res judicata – Prior judgment which was, in part, ultra vires – Defendant relying on that part of the judgment which was not ultra vires but a default judgment – Whether can ground a plea of estoppel
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CASE SUMMARY
Plaintiff-Respondent sued Defendant-Appellant for damages for trespass to land and an injunction. At the trial Defendant-Appellant pleaded res judicata, relying upon a judgment by default in respect of the same land for damages for trespass, an injunction, and demarcation of boundaries, given in his favour in 1931 against Plaintiff-Respondent, who had not appeared at the hearing. It was admitted that the land in dispute in both cases was the same.
The trial Judge held that the plea of res judicata could not succeed, on the ground, inter alia, that the court which gave the 1931 judgment had no jurisdiction in real actions, and the claim for demarcation of the boundary was a claim in the nature of a real action.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeal):
1. Any lack of jurisdiction in the court which gave the 1931 judgment was in respect of the order for demarcation of boundaries only;
2. the judgment, in so far as it dealt with trespass, had been within the jurisdiction of the court, and Defendant-Appellant’s plea of res judicata was based on that part of the judgment which dealt with trespass, and on that part only, since there was no dispute as to the identity of the land.
3. The 1931 judgment, even though a judgment by default, could be pleaded as a bar to the action.
Cases cited:-
Henderson v. Henderson 1843 3 Hare 114.
Humphries v. Humphries (1910) 2 K.B. 531.
Hoystead v. Commissioner of Taxation (1926) A.C. 165.
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MAIN JUDGMENT
The following joint judgment of the Court was delivered:
In this case Respondent originally claimed a declaration of title to the land known as Itak, £25 damages for trespass and an injunction, but subsequently the claim for a declaration of title was withdrawn.
In Respondent’s Statement of Claim before the lower Court he sets out that in 1922 the defendant brought an action against his predecessor claiming a declaration of title to the same land the subject matter of the present suit, £100 damages for trespass and an injunction which was dismissed with costs and on appeal shared a similar fate.
In 1930 present Defendant-Appellant instituted an action with regard to the same land claiming damages for trespass, an injunction and applying for the demarcation of the boundaries of the same Itak land. Present Plaintiff-Respondent did not appear at the hearing of the said case and in their absence judgment was given in 1931 for present Defendant-Appellant in default for £50 damages, an injunction and ordering that a licensed Surveyor should demarcate the boundary shown on the plan exhibited and marked B.C.
Upon the hearing of this case Defendant-Appellant pleaded res judicata and estoppel, laches and acquiescence and possession and it was agreed that the land the subject matter of this action was the same land the subject matter of the two before-mentioned actions. Two witnesses gave evidence for plaintiff, and defendant called no evidence but stated he relied on the plea of res judicata and estoppel and put in evidence copies of the two before-mentioned judgments of 1922 and 1931.
The Defendant-Appellant in the Court below relied on the 1931 judgment as res judicata but the learned Judge rejected this plea apparently on two grounds:
(1) That the Defendant-Appellant had not proved that the trespass complained of in the present action was on the Defendant-Appellant’s side of the boundary line demarcated in the 1931 judgment; and
(2) That the Court which gave the 1931 judgment had no jurisdiction in real actions and that the claim for demarcation of the boundary was a claim in the nature of a real action.
There is no force in the first of these grounds as in the pleadings and evidence in the present case it was admitted that the land in this and in the 1931 judgment were the same nor is there any force in the second ground as in this case the lack of jurisdiction upon which the Respondents found refers only to that part of the 1931 judgment which dealt with the claim for a demarcation of boundary. It is not suggested that the judgment in so far as it dealt with trespass and awarded damages therefor was outside the jurisdiction of the Court and it is that part of the judgment upon which the Appellant bases his plea of res judicata. The Appellant would have had to rely on the part of the judgment dealing with demarcation of boundary only if there had been a dispute in the present case as to whether the land in respect of which the present claim is brought was the same’ as that in respect of trespass to which the Appellant obtained judgment by default in the 1930-1931 case. But in the present case both in the pleadings and the evidence it is clear that there is no such dispute.
The land in respect of which the Respondent now claims damages for trespass is admitted to be the same as that in respect of which the Appellant got damages for trespass from a Court of competent jurisdiction ad hoc in the 1930-1931 case. Any lack of jurisdiction in the Court as regards demarcation of boundary in the 1930-1931 case does not therefore affect the question of res judicata, now raised. Accordingly the only issue which is left for us to decide is whether plaintiff was estopped – from bringing this action.
The judgment of 193 upon which Appellant relies was a judgment by default and it has been contended by Respondent’s Counsel that being so it cannot now be pleaded as a bar to this action. He quotes no authority.
The said judgment was a final judgment and the damages awarded defendants have been paid by the present Respondents.
The law of estoppel has been very clearly defined by Lord Shaw in the judgment of the Privy Council in the case of Hoystead v. The Commissioner of Taxation 1926 A.C. p. 165 wherein he says:-
“In the opinion of their Lordships it is settled, first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view to obtaining another judgment upon a different assumption of fact;
“Secondly, the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal liability of that fact. Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle.
Thirdly, the same principle namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the Plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgment although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken. The same principle of setting parties’ rights to rest applies and estoppel occurs.”
Wigram V. C. in the case of Henderson v. Henderson 1843 3 Hare 114 sets forth the rule in the following judgment:-
“I believe I state the rule of the Court correctly when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court Wall actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.
“This authority has been frequently referred to and followed, and is settled law.”
The case of Humphries v. Humphries (1910) 2 K.B. p. 531 takes the law even further for the purposes of our present case. In this case:-
“The plaintiff brought an action for arrears of rent alleged to be due under an agreement for a lease. The defendant relied on the defence that no agreement had been concluded, but did not raise any defence under s.4 of the Statute of Frauds. Judgment was given for the plaintiff.
“Further arrears of rent having accrued due, the plaintiff brought a second action. In this action the defendant raised the defence that there was no memorandum or note in writing of the agreement for the lease sufficient to satisfy the requirements of s.4 of the Statute of Frauds:-
“Held, that the defendant, not having raised this defence in the former action, was precluded from raising it in the second action.”
For these reasons we are of opinion that the plaintiff is estopped from bringing this action. The appeal is allowed; the judgment of the lower Court, including the order as to costs, is set aside and any costs paid thereunder are to be refunded; it is ordered that a judgment in lieu thereof be entered dismissing the plaintiffs claim. The Appellant is awarded costs in this Court which we assess at 50 guineas and costs in the Court below which we assess at 20 guineas.
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