CASE SUMMARY (AKOMA & ANOR . V. OSENWOKWU & ORS)
In arguing this issue, the Appellants’ counsel argued that the justices of the Court of Appeal were in error to have relied on one of the exhibits, “Exhibit C” (the judgment of the native court) as constituting res judicata. Further, he contended that the Respondent never raised the issue of res judicata at the trial court and that even if they did, it will not avail them.
He submitted that the plea of res judicata does not avail a plaintiff and that the learned trial judge erred when he upheld the plea by the plaintiff. Consequently, he argued that the lower court’s support of and failure to review the erroneous decision of the trial court’s decision led to the conclusion that Exhibit ‘C’ created res judicata. Inversely, the Respondent’s counsel argued that the Court of Appeal never found that the judgment in Exhibit C was res judicata but that the facts accepted by the Native Courts constituted issue estoppel and that these facts were pleaded in the Respondents’ pleadings.
He admitted that the concepts of res judicata or issue estoppel are used as shields but not as swords but submitted that in the extant case, this general rule ought not to apply since it is a consolidated case in which there are two actions for declaration of title. He stated that the Respondents were right to rely on the plea in defence to the suit against them by the Appellants. He urged the court to dismiss the appeal and affirm the decision of the Court of Appeal.
In unanimously dismissing the appeal, the Supreme Court noted that even if the Respondents did not meet the criteria to avail themselves of the plea of res judicata, the plea of issue estoppel is still available with respect to the findings on the ownership of the land in dispute which were contained in Exhibit C. The court further stated that estoppel does not need to be pleaded in any special form provided that the facts constituting estoppel are stated in a manner that clearly raises estoppel.
In responding to the argument that the plea of res judicata is a shield and not a sword, the Supreme Court stated that: “We know what is “res judicata” Simply put it arises where a court of competent jurisdiction had earlier adjudicated upon an issue the same comes up again between the same parties or their privies. See Fadiora v. Gbadebo (1978) 3 SC. 29, Ladega v. Durosimi (1978) 3 SC. 64.
In a long line of cases it has been decided judicata is not available to a plaintiff as basis of his claim except by way of a reply to a defence raised by the Defendant in a statement of defence. A plaintiff cannot be seen raising a plea that will oust the jurisdiction of the court to entertain the action he has brought before that court. As it is often said. It is a shield rather than a sword. See Ike v. Ugboaja (1993) 6 NWLR (Pt. 321) 539.”
This summary is fully reported at (2014) 6 CLRN  11 NWLR (Pt. 883) 98 CA/B/169/99
Created by Ladi Rotimi-Williams on 04 Apr 15