“It is clear to our mind, that the learned Judge’s application of the doctrine of standing by as laid down in Nana Ofori Atta II, etc and anor. v. Nana Bonsra to this case is incorrect, and we feel unable to agree with his decision. The appellant, it is to be observed, as soon as he became aware that the parties in the former action (1/187/57) were in Court, brought the present action and sued the two parties in the former case as defendants. In other words the present action was instituted whilst the former action (Exh. E) was still pending and not tried. Can it, in the circumstances, be said that the appellant was standing by merely because he felt he could not be in the same harness with the plaintiff in the former action (Exh. E)We think not. We are clearly of the view that the appellant was entitled to fight his own case by bringing his own action, and it would not have been in his own interest to join with the plaintiff in the former action when both he and that plaintiff were both asking for declaration of title to the same land. His proper course, in our view, was to have brought an action against the two parties in the former action, which he did. We are therefore unable to agree with the learned Judge that the extended doctrine of res judicata of standing by when a man becomes aware of an action, can be applied where during the pendency of the action, he brought his own action, before judgement was given in the former or pending action.”

Per ADETOKUNBO ADEGBOYEGA ADEMOLA, JSC in ADENLE V. OYEGBADE (1964) LCER-290(SC) (Pp 5 – 6 Paras D – F) #