Appellant, as plaintiff, brought an action seeking a declaration that he has possessory title to that piece of land situate at Orio village Benin and is entitled to obtain a certificate of occupancy in respect of the said land, damages for trespass and perpetual injunction against the respondent who was the defendant at the High Court.

Respondent then brought an application to set down for hearing and determination before the trial, a preliminary point of law raised in paragraphs 5, 6, and 7 of the statement of defence to the effect that the action constituted an abuse of process of the court in that it is caught by the doctrine of res judicata and as such it should be dismissed.

The appellant did not file any counter-affidavit.

The trial court found as a fact that the subject matter of the dispute, the parties involved, and the cause of action in both suits were the same and upheld the plea of res judicata raised by the respondent and accordingly dismissed the entire suit.

Appellant dissatisfied appealed to the Court of Appeal.