M. O. Odutola Vs Chief Zaacheus Oderinde (Bale Of Ijako) (2004)

LAWGLOBAL HUB Lead Judgment Report

L. KUTIGI, JSC

In the Ogun State High Court holden at Otta, the Plaintiffs claimed against the Defendant –

(1.) to be the persons entitled to the Statutory Right of Occupancy in respect of the land situate, lying and being at Ijako village near Otta, Ogun State of Nigeria;

(2.) the sum of N200,000.00 against the 1st Defendant being damages for trespass etc.

(3.) injunction restraining the 1st Defendant, his agents, servant, or privies from committing further trespass and or entering the said land etc.

(4.) injunction restraining the 2nd, 3rd and 4th Defendants from accepting and or approving and granting and or registering and or processing any application for certificates of occupancy from the 1st Defendant etc.

It should be noted that the Defendant/Appellant became the sole Defendant upon the withdrawal of the claim against the other Defendants who were then struck-out from the suit.

After the parties had filed and exchanged their pleadings, the Defendant filed a Motion on Notice praying for an order setting down for hearing the plea of “res judicata” raised by him in his pleadings. The motion was supported by an affidavit to which were attached judgments in suits No. 23/CV/75 (Exhibit A) and No. AB/13A/84 (Exhibit B). The Defendant claimed that the plea was based on the two judgments.

The Plaintiffs countered by filing a counter affidavit to which several documents including a Survey Plan No. OG.790176 were attached.

After hearing argument from Counsel on both sides the learned trial judge in a reserved Ruling held that on the materials before him the plea of “res judicata” was not established. Consequently the application was dismissed.

Dissatisfied with the Ruling, the Defendant appealed to the Court of Appeal holden at Ibadan. In a unanimous judgment the Court of Appeal held that the appeal was completely devoid of merit and dismissed it accordingly.

Still aggrieved by the decision of the Court of Appeal, the Defendant has further appealed to this Court. Eight (8) Grounds of Appeal were filed from which five (5) issues have been distilled in the Appellant’s brief for determination by this Court. I have read them all.

However, having regard to the interlocutory nature of the application, it is my considered view that the single most important issue relevant in this appeal is Defendant’s issue (5) which reads –

“(5.) Whether the Court of Appeal was right in not upholding the plea of “estoppel per rem judicatam.”