Olowo Okukuje V. Odjenima Akwido (2001)

LAWGLOBAL HUB Lead Judgment Report

A.I. KASTINA – ALU, JSC

This appeal is from a decision of the Court of Appeal, Benin Division which set aside the judgment of the trial Oleh High Court in a land claim. The plaintiff brought this action for himself and on behalf of the Akpara Family of Ofagbe Village against the defendant Odjeniwa Akwido for himself and on behalf of Ighavie Family also of Ofagbe Village in Isoko Division for the following reliefs:

1. A declaration of title to the land verged pink in the survey plan filed by the Plaintiff.
2. N200.00 damages for trespass committed by the Defendant between January, 1976 and February, 1976.
3. An order of forfeiture of the defendant’s right of tenancy to the area verged pink in plaintiff’s survey plan and for an order of perpetual injunction restraining the defendant from carrying on any building on the area verged pink in the survey plan.
4. An order of mandatory injunction to remove any structures erected or crops grown outside the area verged yellow and brown in plaintiff’s survey plan.
5. Any other legal or equitable relief.

The defendant not only filed a defence but also a counter-claim for:

1. A declaration of title to the land particularly described in the defendant’s plan.
2. N10,000.00 damages for trespass committed by the Plaintiffs, their servants, agents or workmen who, sometime between February, 1976 and November, 1983 broke and entered the said land, deposited sand thereon and erected structures.
3. An order of perpetual injunction restraining plaintiffs from entering the said land or part thereof.

The defendant at the trial relied on estoppel per rem judicata and issue estoppel both in his pleadings and in his evidence. The basis for such reliance was two judgments –

(1) an Owhe Customary Court judgment (Exhibit ‘C’) and,

(2) Oleh Magistrate Court judgment (Exhibit ‘D’)

In his judgment the learned trial judge held that the present action was not res judicata and also that the plaintiff has proved his claim. He entered judgment for the plaintiff in the following terms:-

(a) A declaration that the plaintiff and his family are entitled to a certificate of occupancy to the piece of land verged pink in plaintiff’s survey plan tendered as Exhibit ‘A’

(b) N100.00 damages against defendant and his family for trespass.

(c) Perpetual injunction restraining the defendant, his servants, agents and all members of Ighavie family from carrying on any building or other works on the land verged pink in Exhibit ‘A’ without the consent of the plaintiff and members of his family except the portion verged yellow and brown on Exhibit ‘A’

The defendant appealed to the Court of Appeal Benin Division. The Court below in its judgment held that the defendant had successfully made out a case for the application of both cause of action estoppel and issue estoppel. The court therefore allowed the appeal, dismissed the plaintiff’s claim and entered judgment for the defendant on the counter-claim. This appeal by the plaintiff to this Court is from the said decision of the Court of Appeal.

The plaintiff submitted two issues for determination. They are:-

1. Whether the plea of estoppel per rem judicatam (and we would add) and issue estoppel avail the respondent, and if they do, whether the respondent is entitled to judgment in his counter-claim?
2. If the plea of estoppel per rem judicatam and issue estoppel are unavailable to the respondent, whether the appellant is entitled to judgment (and we would add) as found by the trial Court?

The defendant also raised two issues for determination which read as follows:

1. Whether the Court of Appeal was right when it held that both cause of action estoppel and issues estoppel applied in favour of the Defendant/Counter-claimant.
2. Whether the Court of Appeal ought to have considered the other grounds of appeal filed by the Defendant/Respondent in his appeal to that Court and the consequence of its failure to consider them.

The main question for determination in this appeal is whether the Defendant made out a case for the application of both estoppel per rem judicatam and issue estoppel.