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15TH JUNE, 1973.

SUIT NO. SC 217/1972

CWLR (1973) 3


(1973) 6. SC 34

LN-e-LR/1973/16 (SC)














REAL ESTATE/LAND LAW:- Dispute as to title land – Issuance of Certificate of Occupancy over land already covered by a subsisting Certificate of Occupancy – How treated

CHILDREN AND WOMEN LAW: Women and Real Estate/Land – Defence of interest over land arising from issuance of Certificate of Occupancy –  Women and Justice Administration ­­– Effect of existing court judgment over a new court proceeding relating to the same subject matter or parties

PRACTICE AND PROCEDURE – ACTION:- Argument of motion – Whether facts can be freely referred to by parties which had not yet been pleaded and were not contained in the affidavits – Effect – Momentous issues of facts raised and decided merely on affidavits – Attitude of Court thereto

PRACTICE AND PROCEDURE – ACTION:- Order – Application to dismiss case on the grounds that it is sub judice an abuse of the process of the court, vexatious and scandalous – Whether can be instituted at any stage of the proceedings where the particular ill complained of is manifest or apparent on the record

PRACTICE AND PROCEDURE – COURT: Inherent jurisdiction to stop an abuse of its process and to prevent the institution or continuation before it of any proceedings which are manifestly vexatious or scandalous or both – How activated

PRACTICE AND PROCEDURE – ACTION:- Application for dismissal of an action in limine on the grounds of estoppel by res judicata – Whether there is marked differences of nature and substance in the two types of application

PRACTICE AND PROCEDURE – ACTION:- Estoppel by res judicata – Nature – As a plea operating as bar to any further action – As evidence conclusive of the issue or points so raised – When deemed established – Relevant considerations

PRACTICE AND PROCEDURE – ACTION:- Estoppel by res judicata – When it can only be deemed properly set up or pleaded – By plaintiff – By defendant – Need to plead same after order for pleadings had been made – Where pleadings are not filed – Need to raise same at the earliest opportunity – Need to establish a defence or plea of estoppel per rem judicatam on a proper appraisal of the facts put up in the proper way and using the right procedure in the proposition and consideration of those facts – Effect of failure thereto




Mr. S.O. Adewunmi, for Appellants.

Mr. I.A Salami (State Counsel, North-Central State), for 1st and 2nd Respondents.

Alhaji M. Kaloma Ali, for the 3rd Respondent.




COKER, J.S.C. (Delivering the Judgment of the Court):

This appeal is against the Ruling of Bello, S.P.J. (High Court, Kaduna, Northern-Central State) in Suit No. NCH/31/1972 by which the plaintiffs claim against the present 3rd defendant, Alhaji Tijani Hashim was dismissed with costs. In the action instituted by the plaintiffs (now appellants) the writ was endorsed as follows:

‘The Plaintiffs claim against the Defendants, jointly and in the alternative is for a declaration of this Honourable Court that the Certificate of Occupancy No. 14468 granted to Alhaji Tijani Hashim is null and void and of no effect whatsoever in the Law in so far as it relates to Plot M4 Ahmadu Bello Way which is covered by a Certificate of Occupancy No. 3380 of 13th April, 1933.”


The plaintiffs in the action were: – (i) W.J.O. Amawo; (ii) Mrs. V.E. Alaka.


They are the present appellants before us; the respondents before us are the defendants to the action, and they are –

(i)      The Attorney-General, North-Central State;

(ii)     The Administrator, Kaduna, Capital Territory;

(iii)    Alhaji Tijani Hashim.


Soon after the writ was filed in court and the action entered the plaintiffs filed an application in the court asking for an interim injunction to restrain the 3rd defendant/respondent by himself, his agents and/or servants or otherwise from entering on the land and building in dispute’. The motion was fully argued on both sides and eventually dismissed by the court. Later learned counsel on behalf of the 1st and 2nd defendant i.e. The Attorney-General and the Administrator of Kaduna Territory filed a motion for an order under Order 28 of the old Supreme Court Rules (applicable in the North-Central State) to dismiss the action and for such further or other order as this Honourable Court deem fit.” The application we supported by an affidavit stating that the 1st defendant  as Attorney-General represents the government of the North-Central State and that the 2nd defendant is the Kaduna Local Authority, that the provisions of the Petition of Right’s Law Cap.95 have not been complied with and that no Statutory Notices of the intention to commence the proceedings had been served on those defendants. That motion was dated the 1st of July, 1972; on the 5th of July, 1972 another motion was filed on behalf of the 3rd defendant Alhaji Tijani Hashim, asking for an Order that this matter be dismissed as “it is sub-judice an abuse of the process of the court, vexatious and scandalous and for further Order or Orders as this Court may deem fit to make under the circumstance.” This application was accompanied by an affidavit sworn to by Mr. Dahiru Musdapher a legal practitioner of Kano and it contains a number of facts concerning a previous litigation between one of the plaintiffs and the present 3rd defendant and indeed attaching as an exhibit to the said affidavit a copy of the Statement of Defence which the present 1st plaintiff had filed as a defendant to that action.


Both motions were eventually argued together and the motion on behalf of the Attorney-General was dismissed. Up to the time that the motions were argued no order for pleadings was sought or made and it is obvious that the facts canvassed in and by the several applications were based on the affidavits before the court. There is no appeal before us against the dismissal of the application by the 1st and 2nd defendants but we must observe that Order 28 of the  Supreme Court Rules under which that application was brought postulates that there should have been filed a Statement of Claim on behalf of the plaintiff or plaintiffs before the order can apply. Order 28 of the Supreme Court Rules provides as follows:


“1      Where a defendant conceives that he has a good legal or equitable defence to the suit, so that even if the allegations of the plaintiff were admitted or established, yet the plaintiff would not be entitled to any decree against the defendant, he may raise this defence by a motion that the suit be dismissed without any answer upon questions of fact being required from him.


  1. For the purposes of such application, the defendant shall be taken as admitting the truth of the plaintiffs allegations, and no evidence respecting matters of fact, and no discussion of questions of fact, shall be allowed.


  1. The court, on hearing the application shall either dismiss the suit or order the defendant to answer the plaintiffs allegations of fact, and shall make such order as to costs as shall be just”


It is obvious from the wording of this order that a Statement of Claim at least must have been filed before the order can be invoked. Rule 1 dearly speaks of “the allegations of the Plaintiff’ being admitted or established. Rule 2 requires that for the purposes of an application under the Order “the defendants shall be taken as admitting the truth of the plaintiffs’ allegation” and when we come to Rule 3 we find that if the court is satisfied that the application was properly made under that order then the court shall dismiss the plaintiffs’ action and if on the other hand the court is not so satisfied it will then order “the defendant to answer the plaintiff’s allegations of fact.” We think it proper to point out that the whole of Order 28 requires that some sort of pleading should have been fled before it can be invoked.


In the course of the argument of the present motion facts were freely referred to by both sides which had not yet been pleaded and were not contained in the affidavits and a situation was manifestly created whereby momentous issues of facts were raised and decided merely on affidavits.


In the same way the application by the 3rd defendant was argued by the learned counsel for 3rd defendant Mr. Kaloma Alli. The notes taken by the learned trial Judge of the argument reads as follows:

“Kaloma: I associate [myself] with Mr. Salami. I would argue my motion that the case is res judicata. Refers to the writ, affidavit and certified copy of judgment of the High Court Suit in the former suit was between 1st plaintiff and 3rd defendant.”


As stated before all sides argued the motion accordingly and at the end of the day the learned trial Judge acceded to the prayer of the 3rd defendant and his application and dismissed the plaintiff’s case against that of defendant with costs. Hence this appeal.


Before us on appeal it was submitted that the entire proceedings were misconceived and that in any case res judicata was not established. Learned counsel for the 3rd defendant resisted this submission and argued firstly that an application of the type he had brought could have been rightly brought at any stage of the proceedings, even before the filing of pleadings, and also that res judicata was established inasmuch as the 1st plaintiff had as defendant in an earlier action instituted by the 3rd defendant as plaintiff defended his occupation of the land and building concerned as one of the children of the late Pa Ogunshina whose children the two plaintiffs are. Learned counsel for the 3rd defendants was unable to refer us to any authorities on the propriety of the procedure adopted by him but he contended strenuously that the authorities on which learned counsel for the plaintiffs relied for disproving res judicata did not apply to the present case.


We have already set out the nature of the order sought on the application of the 3rd defendant. The application was to have the case dismissed on the grounds that “it is sub judice an abuse of the process of the court, vexatious and scandalous.” We easily concede the possibility of instituting an application of this type at any stage of the proceedings, where the particular ill complained of is manifest or apparent on the record. Every court has the inherent jurisdiction to stop an abuse of its process, and indeed to prevent the institution or continuation before it of any proceedings which are manifestly vexatious or scandalous or both. These characteristics stultify the action from its inception and we scarcely require further extrinsic facts to demonstrate their destructive effects.


In this case however, the application in fact argued was one for dismissing the plaintiff’s action in limine on the grounds of estoppel by res judicata. That was the motion argued by learned counsel for 3rd defendant and it is right to say that nothing else was argued in respect of the motion as worded. There is no record of any amendment either having been sought or granted of the motion, although we were informed by Mr. Kaloma Alli, learned counsel for the 3rd defendant that the application was in fact amended. It was little realised that a great difference exists between the two types of application and if any amendment were granted, we can find on the record nothing to show that adequate consideration was even given to the marked differences of nature and substance in the two types of application. Estoppel by res judicata is a defence of estoppel and can only be so set up or pleaded. At the stage of the proceedings at which it was here canvassed there had been no order for pleadings and no such pleadings had been filed. The plaintiffs have not yet stated their case and therefore there can be no suggestion of a defence being filed to that case.


We think it well established that where there should be pleadings res judicata should be properly set up as a plea in defence, and the particulars of such a plea should also be included in such a way as should be sufficient to apprise the plaintiff of the matters being relied upon as estopping him from litigating or relitigating a particular issue or case. Where there are no pleadings it is of utmost necessity that the evidence be clearly identified in order to establish and to make it clear the purpose of the evidence and what it is intended to establish by the evidence. In the present case neither of those courses was adopted and we are in agreement with learned counsel for the appellants who had rightly complained before us that in the determination of the application on res judicata the proceedings was misconceived to the detriment of the plaintiffs.


What we say in a nutshell is that where pleadings are filed res judicata being a plea should be raised as such. Where pleadings are not filed then it should be raised by evidence at the earliest opportunity. In Spencer Bower: Res Judicata (2nd edition) page 145 paragraph 410, the following statement of the procedural law and with which we are in full agreement, is set out:

‘The pleading in which the estoppel must be raised, if it is pleadable at all, is that which answers the first pleading on the opposite side manifesting an unmistakable intention to “canvass the merits of the res judicata, and containing allegations contradictory of any question of law or issue of fact thereby determined. If the statement of claim (or declaration, or bill, in former times) set out matter of this character, then the defendant must plead the estoppel in his plea, answer, or defence; If such matter first appears in a plea, or defence, then it is for the plaintiff to plead the estoppel in his replication or reply, the defendant must take it up in his rejoinder.”


So it must be, for, as a plea, res judicata is a bar to any further action; and, as evidence, it is conclusive of the issue or points so raised. In the present case a great deal of the issues of fact were presented by way of affidavits before the learned trial Judge but we are firmly of the view that the learned trial Judge was in error of law in deciding such crucial and weighty issues on affidavits rather than on evidence viva voce.


Next comes the issue as to whether in the particular circumstances res judicata was indeed established, for learned counsel for the appellants submitted before us that the plea did not apply. The previous action which was being pleaded as res judicata was Suit No. NCH/68/70 Alhaji Tijani Hashim v. J.O. Amawo in which the present 1st plaintiff and the 3rd defendant were the parties. The claim in that case, the judgment of the High Court and the judgment of the Supreme Court in that case were all produced through the affidavits of counsel on behalf of the 3rd defendant, but the contents were in no way verified or ascertained other than upon the ipse dixit of the deponent. These of course are matters to be proved in evidence and pre-eminently it must be ascertained the capacity in which the defendant in that case was sued or in which he defended the action, since in the present case there is a suggestion that the plaintiffs were suing in a representative capacity. Order 4 rule 1 of the old Supreme Court Rules applicable in the North- Central State provides as follows:

“1.     If the plaintiff sues, or any defendant counterclaims, in any representative capacity, it shall be expressed on the writ. The court may order any of the persons represented to be made parties either in lieu of, or in addition to, the previously existing parties.”


By the provisions of that rule the capacity where a party sues or is sued in a representative capacity must be endorsed on the writ. The writ in the previous action has nowhere been produced and we know precious little of the endorsement on that writ with respect to the capacity in which the present 1st plaintiff was sued as defendant. In the course of the Ruling which is now on appeal, the learned trial Judge observed on this point as follows:

‘The affidavits of the Plaintiffs show that both plaintiffs are children of A.A.R. Ogunshina, deceased, and both Plaintiffs claim to have inherited “the disputed land from him. It is relevant to set out some of the averments of the 1st Plaintiffs pleadings in the former suit:

  1. The defendant is one of the children of the late A.A.B. Ogunshina and on his death the title to his interest in the property devolved on his children, one of whom is the defendant.


  1. By dint of the aforementioned premises the defendant lays claim to the right to possession of the said property.


  1. The said Ogunshina was a Native of Ogbomosho in the Western State of Nigeria and by virtue of the Native Law and Custom of Ogbomosho his property on his death became the joint property of his children whether such property is real or personal property.

It is dear from the above pleadings and the affidavits of the plaintiff, the 1st Plaintiff defended the former suit for himself and other children of Ogunshina including the 2nd Plaintiff. The judgment in the former suit is therefore binding upon her.”


The introductory portion of the passage above quoted is not supported by any evidence for apparently it was just gleaned from the claim before the court in that case. With respect to the pleadings they are the pleadings of the first plaintiff only who was the defendant in the case and with respect to the learned trial Judge we do not see how the inference he had drawn could so easily embrace the 2nd plaintiff with respect to that type of estoppel. We think it should be realized that whilst it may be possible to establish a defence or plea of estoppel per rem judicatam on a proper appraisal of the facts put up in the proper way a wrong procedure in the proposition and consideration of those facts may render it impossible to see the facts in their proper perspective.


In the previous case the defendant therein now 1st plaintiff here was called upon to defend a claim against him of possession. He was in other words asked to justify his occupation of premises on which he was living. He attempted to do so but failed and the court gave judgment against him. In the present case as one of the plaintiff he is contesting along with the other plaintiff the validity on propriety of the assurance or assurances by which it was sought to exclude the plaintiffs from what they considered their own rightful entitlement. These of course are matters which demand some serious consideration after all the facts had been set out in an appropriate way for a court to examine and adjudicate upon. We do not consider that the materials upon which the plea of estoppel by res judicata could be raised and fairly contested were put before the court in the proper way and we are of the view, that this really vitiates the whole proceedings.


For these reasons we refuse to decide whether or not the plea of res judicata was in fact established. We think the procedure adopted was palpably wrong, so wrong that it is impossible to come to a dear decision as to whether or not the plea was in fact and in law established.


The appeal must therefore succeed and we allow it. The Ruling of the High Court, Kaduna in Suit No. NCH131/72 dismissing the plaintiffs’ case against the 3rd defendant on an objection in limine and given on the 14th of July, 1972 including the order for costs is set aside. It is ordered that the application of the 3rd defendant asking for the preemptory dismissal of the plaintiffs case be itself struck out with costs and this shall be the judgment of the court. We also order that the 3rd defendant shall pay the costs of this appeal fixed at N100 to the plaintiffs as well at the plaintiffs’ costs in the court below fixed at N20. We do not make any order for costs in favour of the 1st and 2nd defendants who were not directly concerned with this appeal.


Appeal allowed.




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