Madam Abusatu Agbogunleri V John Depo & 3 Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

I .T. MUHAMMAD, J.S.C.

From the pleaded facts of her statement of claim, the plaintiff, one Madam Abusatu Agbogunleri was the head of Agbogunleri family of Agege. She instituted the suit giving rise to this appeal before the Lagos High Court of Justice, on her own behalf and on behalf of the Agbogunleri family making the following claim against the defendants:

1) A declaration that Agbogunleri family is the person entitled to statutory right of occupancy in respect of the land situate, lying and being at No. 17, Old Abeokuta Road, Isale Oja, Agege.

2) Perpetual Injunction Restraining the Defendants jointly and severally from committing further act of trespass on the Plaintiff land.

3) Special and general damages as follows:-

i. Seven thousand 6 x 6 x 18 vibrated cement blocks at N25 = 175,000.00

ii. Six thousand 9×9 x18 vibrated cement blocks at N35 = 210,000.00

iii. Three hundred of cement at N450 per bag = 135,000.00

iv. Three tones of iron rod at N15,000 by tones = 135,000.00

v. Forty lorry loads of graves at N3,000 per load = 120,000.00

vi. Thirty lorry of loads of sharp sand at N1,500 = 45,000.00

vii. Filling sand, twenty lorries load at N800 per load = 16,000.00

viii. One hundred boundless roofing sheets = 200,000.00

ix. Wiring and other electrical materials = 80,000.00

TOTAL = 916,000.00

GRAND DAMAGES = 500,000.00

GRAND TOTAL = 1,416,000.00

Save and except where the defendants specifically admitted, they denied in their statement of defence each and every allegation of facts made in the plaintiff’s statement of claim. The 4th defendant indorsed a counterclaim against the plaintiff as follows:

1. General damages for trespass on the 4th defendant’s land in January 1996, N500,000.00
2. Special damages for vandalizing and demolishing St. John’s Church (Mud) in June, 1996,

N200,000.00

3. For the sum paid to Stevak Enterprises for construction work in advance per receipt

N1,500,000.00

4. The 4th defendant claims the sum of N3,500,000.00 as special above and N500,OOO.00 as general damages.

Total N4,000,000.00 (Four Million Naira).

The plaintiff sought for and was granted extension of time by the trial court to file his reply to the defendant’s statement of defence and the counter-claim set out in it. In that reply plaintiff set out her defence to the counter-claim.

At the trial the plaintiff called three witnesses in support of the plaintiff’s claim. The defendants called six witnesses. In her judgment the learned trial judge Kekere-Ekun, J. dismissed the claims of the plaintiff. The counter-claim of the 4th defendant succeeded and the 4th defendant was awarded the sum of N1,510,000.00 as special damages. Dissatisfied with that decision, the plaintiff appealed to the Court of Appeal, Lagos Division (court below).

In the court below, the appeal was partially allowed. Judgment of the trial court dismissing the plaintiff’s claim was affirmed. The award of N1,510,000.00 as special damages was set aside. N10,000.00 was awarded as damages.

Dissatisfied further, the plaintiff appealed to this court on two grounds of appeal set out in the Notice of Appeal. briefs of arguments were settled by the parties.

In her brief of argument which was adopted by her learned counsel, the plaintiff, now appellant herein, formulated a sole issue for the determination of this court. It reads as follows:

“Whether the Court of Appeal was right in upholding the finding that the appellants are estopped by judgment in 10/199/81 (exhibit DIB at the trial).”

Learned counsel for the defendants but now respondents, initially formulated four issues for determination. On the hearing date however, he sought for and was granted leave to abandon three of the issues which, together with arguments proferred in respect thereof, were struck out accordingly. The subsisting issue for the respondents reads as follows:

“Whether the Court of Appeal was right in upholding the findings of the Court of 1st instance in respect of an earlier SUIT No. 1D/199/81 (Exhibited as 01 at the trial) having regard to the fact that the matter had been adjudicated upon and determined by a Court of competent jurisdiction and as such the Appellant is estopped by the principle of estoppel per rem judicatem from re-litigating on same.”

Some of the points raised by learned counsel for the respondents in respect of which a reply brief was filed by learned counsel for the appellant were conceded by the respondents. The respondents accordingly had such points struck out ego issues 1, 3 and 4 of their brief of argument.

In his submission on the sole issue, learned counsel for the appellant devoted some time in defining and expatiating on the doctrine of estoppel per res judicata. He submitted that both the Court of Appeal as well as the trial court were wrong in holding that the parties were the same on the footing that the parties in the present suit are privies of the parties in the earlier suit. He argued further that as a general rule, no person is to be adversely affected by a Judgment in an action in which he was not a party because of the injustice in deciding a matter against him in his absence unless he is a privy to a party in which he is equally bound as the parties and is estoppel per res judicata or he has so acted to preclude himself from challenging the Judgment in which case he is estopped by conduct. Learned counsel contended that case of the respondent is not that the appellant has conducted herself in any manner that would warrant the coming into play of the doctrine of estoppel by conduct. There is no allegation that appellant was aware of the prosecution of suit 10/199/81 or that she stood by. The respondents case is that the appellant here is the privy of the plaintiff in ID/199/81.

Learned counsel for the appellant stated the classification of privies in general. He submitted that an admission by a predecessor in title binds his successors provided it affects the title and is made during the predecessors interest. The reverse, he argued, cannot be the position. He put his arguments in other words, that an admission by a successor in respect of the title cannot bind his predecessor for the simple reason that the interest of the predecessor must have become spent at the time of such admission by the successor. There is no longer any identity of interest. In the same manner the binding effect of the doctrine of estoppel in relation to privies operates down stream. Judgment against an ancestor in relation to the title will operate to bind his heir, not the other way round.

Learned counsel for the appellant stated further that a privy is a person whose title is derived from and who claims through a party. He cited and relied on the case of Arabio v. Doku Kanga (1932) 1 WACA 253 at 254. Learned counsel went on to explain further what he means. He stated that a judgment against a testator will bind his heir. A judgment against an heir cannot bind a testator. The simple reason being that the testator would have passed out of the scene. Similarly, a judgment against a vendor affecting the property will bind the purchaser. It cannot be the other way round because the vendor would have ceased to have any interest and there would be no identity between the purchaser and the vendor. Cases of Akande v. Alaga (1988) 4 NWLR (Pt.86) 1 SC; Ebuaku v. Amola (1988) 2 NWLR (Pt.75) 128 at 130; were cited in support of that submission.

It was contended for the appellant that the appellant did not derive her title from the party in suit 10/199/81 as the title of Agbogunleri family has long been vested before the institution of suit 10/199/81 and judgment on it cannot operate as an estoppel against the Agbogunleri family. Another reason why that judgment cannot operate as estoppel is that although the land in dispute in the earlier case is the same land in dispute, the issue was completely different. The matter which came directly for decision in the earlier case was as to the ownership between Mr. Moris Obe and the Catholic Church. That issue is quite different from the issue of ownership between Agbogunleri family and the Catholic Church. Mr. Moris Obe could not have been fighting the cause of the plaintiff in this case when he was making a claim for himself. Consequently, the plaintiff could not be accused of allowing someone to fight their battle for them. The direct issue decided in suit 10/199/81 was the ownership between Moris Obe and the Catholic Church mission. Thus the 2nd condition for sustaining estoppel per res judicata could not be fulfilled.

Another condition not fulfilled by the respondents according to respondent’s counsel was that the judgment relied upon must be a final judgment of a competent court. The onus of establishing that rests on the party seeking to rely on the judgment as estoppel. Learned counsel cited the case of Oye v. Olubode & Ors (1974) NSCC (VoI.9) 409 at 413.

Learned counsel argued that as the judgment sought to be relied upon to found estoppel per re – judicata was appealed against there was no credible evidence as to the outcome of the appeal and evidence shows the appeal is still pending. The Judgment, he submitted, could not be said to have decided the issue to finality and the judgment is incapable of being used to estop the plaintiff. This court is finally urged to allow this appeal and give judgment in favour of the plaintiff.

In his submissions, learned counsel for the respondents stated that the appellant has correctly stated the position that the plaintiff in suit No. 10/199/81 are the same as the present plaintiff i.e. appellant before this court and by virtue of the principle of estoppel per rem judicata cannot relitigate the issues afresh. Appellant also correctly identified the situation of the appellant as one of privity by successive interest. The findings of the court in suit No. 10/199/81 bind any successive claim in respect of the same subject matter. Obe the plaintiff in the said suit No. 10/199/81 claimed that he derived his title from the Agbogunleri family, whose claim failed against that of the Church who had acquired their interest from the same family for over 20 years before the (appellant) came on the scene. Thus, judgment against a testator operates downstream as in the earlier judgment in suit No 10/199/81 operating as against the fresh case in respect of the same land by the same parties. Contended further for the respondents is that the parties in the suits are the same, the land is the same and the judgment relied upon i.e. suit No.. 10/199/81 was a final judgment of a competent court i.e. the High Court of Ikeja, Lagos State. Learned counsel cited and relied on several authorities including: Adebayo v. Babalola (1995) 7 NWLR (Pt.408) 383 at 390; Kparsanagi v. Shabako (1993) 5 NWLR (Pt.291) 67 at 70; Chiakpa & Anor v. Nduka & ors’ (2001) 11SCM, 16 at 18. Rossek v. A.C.B & 4 ors (1993) 8 NWLR (pi 312) 382. Learned counsel for the respondents submitted that a privy is a person whose title is derived from and who claims through a party. He went on to categorize privies. He finally urges this court to dismiss the appeal and affirm the concurrent decisions of the two courts below.

Permit me my Lords, to set out the background facts of this appeal, for the sake of clarity, before I embark on any meaningful discussion of the issues raised and argued above by the parties to this appeal.

In her statement of claim, the plaintiff averred that she is the head of Agbogunleri family and institutes this suit and prosecutes it for and on behalf of the Agbogunleri family of Isale Oja, Agege, Lagos state. It was also averred that the land which is the subject matter of the suit is situate, lying and being at 17 old Abeokuta motor Road Isale Oja Agege and formed part of a vast parcel of land owned by Agbogunleri family. It was further averred by the appellant that the land originally belonged to the Ewu family which exercised various rights of ownership thereon including the cultivation of cash crops, gathering of fruits and the cultivation of cocoa and kolanut trees. The Ewu family was said to have sold the piece or parcel of land in dispute to Fadunsi Agbogunleri (The founder of Agbogunleri family and plaintiff’s grand father). He had been In possession of the said parcel of land from 1906 until his death in 1939. Upon the death of Fadunsi Agbogunleri, the land devolved upon his children by native law and custom. Paragraphs 14, 15 and 17 traced the succession to the land by subsequent generations of the Agbogunleri family up to the present plaintiff/appellant.

It was averred by the appellant that one Mr. Obe rented the land in dispute and he used to pay rent regularly to Agbogunleri family and that he was issued with receipts. Averred further is that Mr Obe erected a mud house on the land which he later converted to a church. He continued to pay his rent until the church vacated the land. After the church vacated, Mr Obe began to default in payment of rent that led to the Agbogunleri family to recover power of the land.

The appellant averred as per paragraphs 26 and 27 of the statement of claim that the Agbogunleri family erected a three bedroom structure on the land as family house. Early in 1996, the defendants/respondents began trespassing on the land and destroyed structures which had been put there by the Agbogunleri family.

The defendants joined issues with the plaintiff on most of the averments in the statement of defence. In paragraphs 4 and 5 of the statement of defence, the defendants admitted that the land in dispute originally belonged to Agbogunleri family. It was averred by the defendants that an area measuring 200ft x 200ft was sold to the authority of the Roman Catholic Church in 1936 vide receipt dated 4th of August, 1936 which land became vested by succession (to ecclesiastical) in the 4th defendant since 1934. The 4th defendants predecessor in title had caused the area of the land purchased to be occupied by his church with a mud church built thereon in 1936 and surveyed in 1935. The defendants averred that they were not aware of suit AB/224/56 pleaded by the plaintiffs and that until these proceedings the Agbogunleri family had never challenged nor instituted any legal proceedings against the defendants. The defendants pleaded long possession, acquiescence, standing by and laches. They pleaded also that the land was not let to Mr. Obe by the plaintiff’s predecessor in title but that she purpoted to sell it to him as per the evidence of Mr. Obe in suit ID/199/81 against the 4th defendant and others. That judgment in the suit was entered in favour of the 4th defendant against Mr. Obe and contended that Agbogunleri and Mr. Obe’s vendor are estopped from denying the judgment in that suit. Any land recovered from Mr. Obe by Agbogunleri family cannot be the land in dispute. Defendants/respondents ..averred that some vandals had demolished the mud church and further that after the foundation stone of the plot had been laid, the church discovered that the plaintiff and her thugs had disturbed the workers on the site. That was why the defendants in their counter claim claimed special damages for the vandalisation and demolition of St John’s Church In 1997 and for the amount paid to Contractor for Construction work In advance. The defendants averred further that the plaintiff had no claim or interest on the land in dispute having been divested of all claims and interest since 1936 when the 4th defendant and his predecessors in office and title became the owners thereof by purchase from the plaintiff’s family or in the alternative, by long possession, laches, standing by and acquiescence.

The plaintiff replied to some of the issues raised in the statement of Defence and the counter-claim.

In consideration of the sole issue formulated for the determination of this appeal which is on estoppel by Judgment, it is pertinent for me to state that estoppel, generally, is that doctrine where a party is not allowed to say that a certain statement of fact is untrue, whether in reality it is true or not It is therefore a disability whereby a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability.

Estoppel can be created In several ways. The Common law recognizes three kinds:

1) Estoppel by record or quasi by record

2) Estoppel by deed and

3) Estoppel in pais

The one that concerns us in this appeal is estoppel by record or quasi by record. It is more popularly known as estoppel per rem judicatam. It presupposes that a final decision of a court of competent jurisdiction once pronounced between the parties cannot be contradicted by any of such parties in any subsequent litigation between them respecting the same subject matter.

It arises in the following situations:

1) where an issue of fact has been judicially determined in a final manner between the parties by a court/tribunal having Jurisdiction, concurrent or exclusive, in the matter and the same issue comes directly in question in subsequent proceedings between the same parties. (cause of action estoppel).

2) where the first determination was by a court having exclusive jurisdiction, and the same issue comes incidentally in question In subsequent proceedings between same parties (issue estoppel)

3) in some cases where an issue of fact affecting the status of a person or thing has been necessarily determined in a final manner as a substantive part of a judgment in rem of a court/tribunal having jurisdiction to determine that status and the same issue comes directly in question in subsequent proceedings between any parties whatever.(see paragraphs 952 and 953 of Halbury’s Laws of England Vol. 16, Fourth edition). There is a finding by the learned trial judge that the parties joined issue on whether the Agbogunleri family is bound by the judgment of Desalu, J in suit No. 10/199/81 as privies therein, i.e. whether the doctrine of estoppel per rem judicatam applies. At page 223 of the record, the learned trial judge held as follows:

“I therefore hold that the plaintiff herein is bound by the judgment of Desalu Judge in suit 10/199/81 and is estopped from relitigating the same issue which was conclusively determined in that suit.”

After quoting extensively the holding of the learned trial judge on the reliance placed by the defendants on the judgment in suit No. 10/199/81, as estoppel per res judicata in their favour against the plaintiff, the lower court was of the view that the learned trial judge was right in her conclusion and the plaintiff’s case ought to have failed as it did.

Is the lower court justified in affirming the decision of the trial court especially when both courts below found the plea of res judicata raised by the defendants/respondents valid

To answer this question, there is need for me to go through the full scope of estoppel by record. Where the earlier decision being relied upon by a party to disable the other party from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability, such as in the present appeal, the judgment delivered earlier by Desalu, J; then that decision can create estoppel by record. Such judgments are known as “judgments in personam or inter parties or res judicata. They are those which determine the rights of parties as between one another to or in the subject matter in dispute, whether it be corporeal property of any kind whatever or a liquidated or unliquidated demand, but which do not affect the status of either persons, or things, or make any disposition of property or declare or determine any interest in it except as between the parties in litigation. They include all judgments which are not judgments in REM.

In order to succeed on the plea of estoppel by judgment, it is necessary for the defendant to show:-

1). the subject matter in dispute is the same namely that everything that is in controversy in the second suit as the foundation of the claim for relief was also in controversy or open to controversy in the first suit.

2). it came in question before a court of competent jurisdiction. See Cardoso v. Daniel (1986) 3 NWLR (Pt.20) 1; and

3). the result was conclusive so as to bind every other court. See: Cardoso v. Daniel (supra)

The judgment which was pleaded by the respondents as res judicata against the claim of the appellant is the judgment delivered by Desalu, J. (late). It came about as a result of SUIT NO. 10/199/81. The parties therein were:

Morris Akinola Obe …………………………………….Plaintiff

AND

Parish Council St. John’s……………………………….Defendants

Catholic Church Agege

Archbishop Anthony Olubunmi Okogie

Rev, L. R. J. Hannon S. M. A.

This was in suit No. 10/199/81 which was pleaded and tendered in evidence.

In the suit giving rise to this appeal the parties are:

Madam Abusatu Agbogunleri…………………………….Plaintiff

AND

Mr. John Depo

Mr. Musa Polycarp

Rev. Fr. John Kilbey and

Most Rev. Dr. Anthony Olubunmi Okogie (joined as a defendant by trial court’s order of 20/6/1997).

The various positions or status of the parties mentioned in suit No. 10/199/81 are that the plaintiff, Mr. Obe, instituted the action against the defendants therein seeking declaration that he was the person entitled to the statutory right of occupancy in respect of the land in dispute which was situate, lying and being at Gbogunleri quarters of Agege township along Agege motor road, sworn on plan No. L. & L/C 2669 as Church (mud) edged red, also known as 17 Abeokuta motor road, Agege, by virtue of Deed of Conveyance dated 9/9/65 between himself and Madam Adenrele Gbogunleri, the grandmother of the plaintiff in the second suit. It was in evidence before the first trial court that the land in dispute was purchased by Fadunsi Gbogunleri, (ancestor to plaintiff in the second suit) and that the Gbogunleri family had remained in an undisturbed possession from 1906 till 1996 when the defendants allegedly trespassed on the land. It was also in evidence that succeeding generation of the Agbogunleri family inherited the land and the plaintiff in the second suit is presently the head of the family.

The plaintiff in the first suit claimed title through Aderenle Gbogunleri, the grandmother of the plaintiff in the second suit. The learned trial judge in the second suit found the plaintiff in that suit to be a privy of the plaintiff in the first suit (page 222 of the record) Thus, the learned trial judge concluded in the following words:

“I therefore hold that the parties in the two suit (sic) are the same.”

In both suits Most Rev. Dr. Anthony Olubunmi Okogie was sued, according to the finding of the trial court, in his capacity as the Archbishop of the Roman Catholic Archdiocese of Lagos and as the sole trustee in whom all the lands of the Archdiocese are vested by succession and acquisition. He was joined as a defendant in the second suit by order of court. the other defendants in the first and the second suits were sued as members of St. John’s Catholic Church, Agege. It is because of the contractual relationship that was existing between the plaintiff’s predecessors in title and the defendants that is why the learned trial judge found the appellant to be in privity of the transaction and bound by the judgment in the first suit.

But, who is a privy In Arabio v. Kanga (1932) 1 WACA 253 at p. 254, a privy was defined as that person whose title is derived from and who claims through a party. It may also imply identity of successive interest or persons having interest in property.

There are said to be three kinds of privies:

a) privies in blood, such as testator and heir

b) privies in law such as testator and executor or In the case of intestate succession, a successor and administrator.

c) privies in estate, such as vendor and purchasers; lessor and lessee etc. see Nwosu v. Udeaja (1990) 1 NWLR (Pt.125) 188

In Exh. DIB, i.e. the judgment of Desalu, J; which was pleaded and tendered in evidence before the trial court, the learned trial judge in evaluating the evidence before him, made the following findings:-

“The plaintiff admits the land in dispute originally belonged to Gbogunleri,, the fore bear of the vendor of the plaintiff Madam Gbogunleri Adenrele.

The case of the Defendant on the other hand is that the Roman Catholic Mission bought the land in dispute as per the purchase, receipt, EXHIBIT “K” bearing date the 4th day of August, 1936.

The 2nd Defendant contended that the Roman Catholic Church was put in possession of the land

purchased which includes the land in dispute.

It was contended the land so purchased measured 200 feet by 200 feet and that the land in dispute

forms a portion to the North Western portion thereof, see the compilation plan, EXHIBIT “L”.

The 2nd Defendant claims to have bought the land from Gbogunleri, the father of Madam Gbogunleri Adenrele the vendor of the plaintiff. In support, EXHIBIT “K” the purchase receipt was tendered.

No evidence was adduced to invalidate the purchase receipt exhibit “K”. I prefer and believe the testimony of the witnesses for the defence P. W1 and P. W2 that the Roman Catholic Church bought a parcel of land from Gbogunleri the father of Madam Gbogunleri Adenrele

!/IIbel” about the year 1936 I believe that the Roman Catholic Church was put in possession of the land so purchased and exercised diverse acts of ownership thereon from about 1935 without let or hindrance from anyone, I am satisfied that one of the cogent acts of ownership and possession exercised on the land by the Roman Catholic Church, was the erection on the land of St. John’s

Catholic Church, Agege about 1935 exhibit “B”, the deed of conveyance of the plaintiff is dated 9th September, 1965.

There was no evidence that the plaintiff was ever put into possession of the land in dispute by his vendor in 1965 or at any time thereafter.

I am satisfied upon the evidence In this case that Gbogunleri the father of Madam Gbogunleri Adenrele, had sold a parcel of land measuring about 200 feet by 200 feet to the Roman Catholic Church, and that the land in dispute on which the mud Church of St. John’s Catholic Church, Agege was erected forms a small part.

I am satisfied that Gbogunleri had therefore in 1936 divested himself and the entire Gbogunleri familv, of any further proprietary or other interest in the said land. It follows therefore and I hold that the interests of the Gbogunleri family in the land in dispute having been divested in the land in dispute after 1936. It follows also, that some 30 years thereafter, Madam Gbogunleri Adenrele would have no interest in the land in dispute to convey to the plaintiff herein. That being so, I hold that no interest in the land in dispute passed to the plaintiff by virtue of the deed of conveyance, exhibit “B” as nemo dat quod non habet. ” (italics supplied for emphasis)

The learned trial judge in the second suit (now under appeal) based her decision on the privity established between the appellant and his predecessors in the title to hold that she was bound by the decision of Desalu, J. so, the case of the appellant here is privity by successive interest as Mr. Obe, who was the plaintiff in the first suit claimed that he derived his title from the Agbogunleri family, whose claim against the church which acquired its interest from the same family for over 20 years before he came on the scene, failed. Therefore, judgment against a testator operates downstream as the first suit ID/199/81, to operate against any fresh claim in respect of the same hand or property by the same parties. This has been the position of the law for quite sometime. Thus, the general principle of the law relating to privy in title is that in transactions relating to land, any person who derives title from or takes an assignment from, or is let into possession by, or otherwise claims or “comes in” under the actual representor, is bound by the same representation, and consequent estoppel, as that which binds such actual representator. See: Tylor v. Needham (1810) 2 Taunt. 279; Spenser, Bower and Turner in their book: Estoppel by representation, third edition, Butterworth, London, 1977, pages 123 – 124.

There is no way I can brush aside the submission of learned counsel for the respondents and the conclusion reached by the learned trial judge, affirmed by the lower court on the issue of parties, that the parties, on the principle of privity of transactions are from all intents and purposes, the same in both suits. Each of the parties from both sides must bear the consequence of his/its predecessor in title and be bound by it. See: Odua v. Nweze (1934) 2 WACA; 98; Shonekan v. Smith (1964) 1 NLR; 168; Mohafe v. Esekhomo (1993) 8 NWLR (Pt.309) 58. The second requirement in sustaining a plea of estoppel by judgment is that the subject matter in dispute must be the same in the previous suit and the suit in litigation at the time the plea was raised. In the appeal on hand, learned trial judge found from the pleadings of the parties that there was no dispute that the land in dispute was the one situate at 17, Old Abeokuta Motor Road, Isale Oja, Agege (page 192 of the record). She also found and held as follows:

“I am satisfied that the subject matter in both suits are (sic) the same that is the land situate lying and being at No. 17 Old Abeokuta Motor Road, Isale Oja, Agege.”

The lower court agreed with that finding. I have no reason to tamper with the concurrent findings of the two lower courts. I affirm same that the said land is the same land in litigation in both suits, i.e. the land situate, lying and being at No 17 Old Abeokuta Motor Road, Isale Oja, Agege. It was this land that was in real controversy. It has same identity in both suits.

See: Chikwe v. Obiora (1960) SC NLR 566; Ekpoke v. Usilo (1978) 6 – 7 SC 187.

The third requirement for the plea of estoppel by judgment to be sustained is that same issue must have been adjudicated by a court of competent jurisdiction.

A court or tribunal is said to be of competent jurisdiction if it is established by law as against a Kangaroo’s court. it is presided by a person competent in all respect and has the authority to adjudicate disputes in that court. It has for long been settled that a court is said to be competent when: (i) it is properly constituted with respect to the number and qualifications of its members and none of the members is disqualified for any reason, (2) the subject matter of the dispute is within its competence and jurisdiction, (3) the action is initiated by due process of law and not in abuse of the court’s process and,-(4) any condition precedent to the exercise of its jurisdiction has been fulfilled. See: Madukolu v. Nkemdilim (1962) All NLR (Pt.2) 581; Nalsa and Team Ass. v. NNPC (1996) 3 NWLR (Pt439) 621. The first High Court, i.e. the one presided by Desalu, J. came about by constitutional provisions. So also the appointment of Desalu as it’s Judge. Thus, whatever decision is handed by that court is a decision given by a court of competent jurisdiction and remains binding on parties to it The decision in suit 10/199/81 of 3rd June, 1988 must remain binding, on parties to it until set aside by a higher court. I therefore, affirm that the decision in suit 10/199/81 binds the present appellant as he was privy or deemed to be privy to it I say no more on this condition.

The last condition for the application of estoppel by judgment is the conclusive nature of the judgment I readily find answer to that from the trial court’s judgment. The learned trial judge held: “I therefore hold that the plaintiff herein is bound by the judgment of Desalu, judge in suit 10/199/81 and is estopped from litigating the same issue which was conclusively determined in that suit” (italics for emphasis)

The court below affirmed this decision. I too affirm the decision and would not venture to enter into academic rigmarole.

Finally, I find no merit in this appeal and I hereby dismiss same. I affirm the lower court’s decision. The respondents. are entitled to N10,000.00 costs from the appellant.

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SC.234/2003