G. S. SOWEMIMO, J.S.C. (Delivering the Leading Judgment): The appellant in this appeal was the plaintiff in the Akure High Court of the Western State in Suit No. AK13/64 and the respondent was the defendant. Judgment was entered in favour of the defendant. The plaintiffs lodged an appeal against that judgment to the Western State Court of Appeal in Suit No. CAW /10/71 and judgment dismissing the appeal was given on 19/11/73. The appellant has further appealed to this Court.
The short question for determination is whether it is open to a defendant to rely on a plea of estoppel per rem judicata" when not specially pleaded. Before embarking on a consideration of this question, we wish to point our firstly, what issues were joined on the pleadings, secondly, what was actually proved and marked as Exhibits "C" and "C1" so far as the Ise Native Court case was concerned, and thirdly, the basis of the judgment in both the High Court and the Western State Court of Appeal. In the Statement of C…