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a
that is was caught by res judicata in that the issues raised therein had been canvassed and decided upon in a previous action between the parties; and
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b
that the action is an abuse of the process of the court.
The previous actions relied upon by the respondent date back to 1976 when the appellant sued the respondent at the IIorin Area Court and claimed possession of the land in dispute based on ownership. That court granted appellant's claim, declared him owner of the property and ordered the respondent to demolish the building which he was putting up on the land. The respondent appealed to the Upper Area Court which affirmed the declaration of title in appellant's favour but quashed the order for demolition because the appellant did not claim it.
Subsequently, the appellant proceeded to file another action against the respondent in the same Upper Area Court seeking an order that the respondent "should remove his house". That court transferred the case to the Lokoja Upper Area Court and the case was determined in favour of the appellant. The respondent appealed against the judgement to the High Court, IIorin. The High Court allowed the appealed on the ground that the Lokoja Upper Area Court had no competence to give a judgement which had the effect of setting the previous judgement of the IIorin Upper Area Court being a court of concurrent jurisdiction. In sitting over the appeal, the High Court panel consisted of the Chief Judge, one other Judge or the High Court and a Kadi of the Sharia Court of Appeal. The appellant's appeal against the judgement of the High Court is still pending before the Court of Appeal.
The above was the position when the appellant filed the suit that led to this appeal and to which the respondent raised the plea of res judicata.
The learned trial Judge dismissed the respondent's application holding that although the claim for title and possession had been previous litigated, the present claim relating to "rendering of an account" is a new issue which the court could hear and determine. The respondent was dissatisfied with the ruling and he appealed to the Court of Appeal. That court allowed the appeal and held that the appellant's action was caught by the plea of res judicata and that the High Court lacked jurisdiction to entertain the matter. In coming to its decision, the Court of Appeal also found that the respondent is a trespasser on the land in dispute.
The appellant appealed against the decision of Court of Appeal on res judicata while the respondent, by way of a Respondent's Notice which he filed also sought a reversal of the finding that he is a trespasser on the land.
