ALHAJA RALIAT OYENIKE SANNI V. ALH. IYANDA S. OLATEJU & ORS
(2013)LCN/6389(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 9th day of July, 2013
CA/IL/55/2011
RATIO
EFFECT OF A SUCCESSFUL RES JUDICATA PLEA
It is germane to remark that where a plea of res judicata is successful, a court of law is stripped of the requisite jurisdiction to adjudicate over the matter in court in which it is raised. Of course, needless to say that, the reverse is true, that is, where the plea is a non-starter, the court will be invested with the competence to entertain the matter in question, see Adtgun vs. Gov., Osun State 1 (1995) 3 SCNJ 1; Ajibola vs. Ishola (2006) 13 NWLR (Pt. 998, 628; Dakolo vs. Rewane-Dakolo (2011) 16 NWLR (Pt.1272) 22. PER OBANDE FESTUS OGBUINYA, J.C.A.
WHETHER A GROUND OF APPEAL WHICH IS AN AN ATTACK ON THE JURISDICTION OF THE LOWER COURT IS A GROUND OF LAW
It is trite law that a ground of law which calls to question the existence or otherwise of the jurisdiction of a court is a ground of law, see General Electric Co. vs. Akande (2010) 18 NWLR (Pt.1225) 596. On this score, the appellant’s three grounds of appeal, which launch vitriolic attacks on the jurisdiction of the lower court to try the first respondent’s action, are grounds of law. It admits of no argument that the decision of the lower court is an interlocutory one since the rights of the parties have not been finally disposed of, see Igunbor vs. Afolabi (2011) 11 NWLR (Pt. 723) 148; Ogolo vs. Ogolo (2006) 5 NWLR (Pt. 972) 163; Owoh vs. Asuk (2008) 16 NWLR (Pt. 1112) 113; Gomez vs. C & S.S. (2009l 10 NWLR (Pt. 1149) 223; General Electrical Co. vs. Akande (supra). PER OBANDE FESTUS OGBUINYA, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
OBANDE F. OGBUINYA Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
ALHAJA RALIAT OYENIKE SANNI Appellant(s)
AND
1. ALH. IYANDA S. OLATEJU (Magaji Abudu) (for himself and on behalf of all members of Magaji Abudu Family of Ilorin)
2. DIRECTOR, BUREAU OF LANDS, KWARA STATE
3. ATTORNEY-GENERAL, KWARA STATE Respondent(s)
HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): This appeal emanates from the Ruling of the High Court of Kwara State delivered by His Lordship Mahmud Abdul-Gafar,J on 3rd June 2011 wherein the Appellant’s application seeking for the dismissal of the 1st Respondent’s action for being incompetent was struck out.
The facts that led to this appeal are that the 4th Defendant at the lower Court Mohammed O.S. Olateju had previously filed an action No. KWS/150/2003 against the Appellant seeking for some declaratory and injunctive reliefs. After the suit was seriously contested before Afolayan, J and at the end of the case, the learned trial Judge made findings on all the issues canvassed before him holding that the Magaji Abudu larger family, to which the 1st Respondent herein belongs, had divested their interest in the land subject matter of this appeal by collecting compensation on the 22nd October, 1993 for and on behalf of the entire larger Magaji Abudu family from the Appellant herein through Kwara State Government by their 9th Magaji who was the immediate predecessor in office to the 1st Respondent herein.
That decision was affirmed by this Court in Appeal No. CA/IL/87/2006-between: Mohammed O. S. Olateju v. Alh. Raliat Oyenike Sanni, to the effect that, the late 9th Magaji of the 1st Respondent’s family having collected compensation on behalf of the Magaji Abudu larger family from the Appellant herein through the Kwara State Government, the family had divested their interest in the land subject matter of this appeal.
It is pertinent that, the land on which the learned trial Judge in Suit No. KWS/150/2003 found that Magaji Abudu family i.e the 1st Respondent’s family had collected compensation is the same parcel of land over which the 1st Respondent herein is seeking declaration of title.
The 1st Respondent herein is part and parcel and also, privy of Magaji Abudu family, which the learned trial Judge in Suit No. KWS/150/2003 found to have collected compensation through their 9th Magaji from the Appellant. After the decision of the learned trial Judge in KWS/150/2003, the Plaintiff therein being dissatisfied with the decision of the trial Judge appealed to this Court, which the Court determined in Appeal No. CA/IL/87/2006.
The 1st Respondent herein, after the decision of this Court in Appeal No. CA/IL/87/2011, which settled the issue of ownership of the land subject-matter of this appeal, subsequently filed Suit No. KWS/301/2010, in an attempt to re-litigate on issues already decided at the lower Court and this Court in Suit No. KWS/150/2003 and Appeal No. CA/IL/87/2006 respectively (see pages 191-328 and pages 91-151 of the Record of appeal).
These facts prompted the Appellant herein to challenge the competence of the Suit No. KWS/301/2010 the subject-matter of this appeal, by filing an application before the lower Court, contending that the suit is incompetent on the grounds of estoppels per rem judicata and that the claim is statute barred.
The 1st Respondent filed a Counter-Affidavit and challenged the competence of exhibit C, as being the judgment of Afolayan J. delivered in Suit No. KWS/150/2003, on the ground that there was no heading, names of the parties and signature of the Judge.
The Appellant in response sought for and obtained Certified True Copy of the complete record which contained the judgment of Afolayan J and attached same as exhibit F to her reply to Counter-Affidavit to demonstrate that the said exhibit “F” contained judgment of the lower Court and same was used by this Court in Appeal No. CA/IL/87/2006 to arrive at a decision.
Rather than the learned trial Judge considering and giving effect to exhibit “F” being a record of proceedings of the same Court in KWS/150/2003 containing the judgment of the lower Court, the learned trial Judge did not take cognizance of the said “exhibit F” used by this Court in Appeal No. CA/IL/87/2006 to arrive at the decision overlooked exhibit F as there is nowhere in the ruling of the learned trail Judge where reference was made to exhibit F before arriving at a decision subject of this appeal. Appellant contended that the Judge in not considering exhibit F has occasioned a grave miscarriage of justice. Hence this appeal brought by a Notice of Appeal predicated upon three grounds from which the following issues for determination were distilled:
1. Whether there was no reliable judgment placed before the trial Court to enable the Court reach any conclusion on rem judicata and/or issue estoppel? (Ground 2).
2. Whether the trial Court had jurisdiction to entertain the suit before the Court despite the clear and undisputed evidence showing that the suit is caught by estoppels-per rem judicata and/or issue estoppels? (Ground 2).
3. Whether the Plaintiff’s suit is not statute barred? (Ground 3).
Before the hearing of the appeal the 1st Respondent raised and argued a Preliminary Objection predicated upon the following five grounds:
1. The Notice of Appeal and or the Grounds of facts and or of mixed law and fact and the Appellant did not seek nor obtain the requisite leave of the lower Court or of this Honourable Court before filling the Notice of Appeal on 13th June, 2011, as replicated on pages 342-345 of the Record, contrary to Section 242 of the Constitution (as amended) since the Ruling was interlocutory in nature.
2. Ground 1 of the Notice of Appeal is incompetent for not arising from the decision of the lower court.
3. Issue No.1 formulated and related to Ground 2 of the Notice of Appeal by the Appellant, together with the arguments canvassed on the issue in the Appellant’s Brief of Argument, are at variance with one another.
4. Issue No. 3 as formulated by the Appellant is at variance with Ground 3 whence the issue was distilled and the issue as formulated did not arise from the decisions expressly reached by the lower Court and thereby not within the jurisdiction of this Honourable Court to determine same.
5. Relief 2 prayed for by the Appellant in the Notice of appeal are not grantable by this Honourable Court as granting same would violate right to fair hearing of the 1st Respondent.
On ground one of the Preliminary Objection, the learned counsel for the 1st Respondent contended that the Notice of Appeal is grossly incompetent, same having being filed in violation of Section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). This is because the Grounds of appeal in the Notice of Appeal are in the nature of grounds of facts. The appeal being against an interlocutory decision of the lower Court, the Appellant requires leave as a prerequisite to filing Notice of Appeal. See Ogolo v. Fubara (2003) 11 NWLR (Pt 831) 231 at 264 paras F-G.
See Kwara State Water Corporation v AIC (Nig.) Ltd (2009) All FWLR (Pt 485) 1738 at 1757, paras D-F; B.A.S.F. (Nig) Ltd v. Faith Ent. Ltd (2010) All FWLR (Pt.518) 840 at 862-863, paras H; A-B, where the Supreme Court per Adekeye, JSC gives a detailed guide on grounds of law and of facts simpliciter and of mixed law and facts, as follows:
“A ground of law has the under mentioned, meanings:
a. A question in which the Court has no discretion to exercise because it has to be answered in accordance with principle of law. It is already predetermined and resolved by the law.
b. A question which calls for the argument and determination of what the true position is in law-such usually arises out of the uncertainty of the law.
c. Interpretation of documents which is a question of facts but is strictly within the duty of a Court.
While the meanings of a question of fact in a ground of appeal relate to:
a). Any question not determined by the principle of law.
b). Any question except that which relates to what the law is.
c). Any question that is to be answered by the jury rather than the Judges.
The principles guiding the Court in circumstances to determine whether a ground of appeal is one of law, or of facts or mixed law and fact are as follows:
1). Whether the Court is being invited to investigate the existence or otherwise of certain facts upon which the award of damages to the Respondent was based, such a ground is mixed law and fact
2). A ground which challenges the findings of facts or issue of law and mixed fact considered by a trial Court is one of law and fact.
3). A question arising out of the evaluation of the evidence tendered at the trial is a ground of fact.
2). A ground of appeal which arises out of misunderstanding of the law by a trial or appellate Court or misapplication of the law to the proved or admitted facts is a ground of law.
3). A complaint about wrongful admission of evidence is also a question of law.
4). A compliant in a ground of appeal of failure of a Court to discharge its judicial duty of considering or pronouncing on the issue before it involves a question of law alone: Nwadike v. Ibekwe (1987) 4 NWLR
(Pt.67) 718; Ogbechi v. Onochie (1996) 2 NWLR (Pt.23) 484; Anogbalu v. Oraelosi (1991) 10 SCNJ (1999) 13 NWLR (Pt 634) 297.”
It was submitted that ground one of the Appellant’s Notice of Appeal is one of mixed law and fact because by the tenor of the said ground, the Appellant is complaining that the lower Court could not have proceeded and exercised jurisdiction on the matter if it had given proper consideration to the evidence before it.
It was further submitted that while the issue of jurisdiction of the lower(sic) is one of law on the other hand the basis upon which it is premised is one of fact. Thus, it is at best a ground of mixed law and fact. (See also the particulars to the said ground). See Kwara State Water Corporation v. AIC (Nig.) Ltd. (supra) at 1760 paras G-H; A-C.
The learned counsel for 1st Respondent A.S. Ishola Esq. further submitted that the Appellant’s second ground is one of pure fact alone because the complaint of the Applicant in that ground is that of a question arising out of the evaluation of the evidential value of both exhibits C and F attached to the affidavit and reply to counter-affidavit respectively filed by the Appellant at the lower Court.
It also requires the Court to re-evaluate every piece of affidavit and documentary evidence in form of exhibits placed before the lower Court. It is therefore a ground of fact or at best a ground of mixed law and fact. Adekeye JSC in B.A.S.F w Faith Ent. (supra) at pages 863 para D stated the position of the law succinctly thus:
“A question arising out of the evaluation of the evidence tendered at the trial is a ground of fact”.
See also the case of Tawakalitu v. FRN (2011) All FWLR (Pt.561) 1413 at 1465 para. D-E, my learned brother Agube JCA aptly stated the position of the law as follows:
“On the other hand, where the grounds of appeal question the evaluation of facts before the application of law, this would tantamount to grounds on question of mixed law and facts.”
It was finally submitted that the tone of Particular V of ground 2, which complains about failure of the trial Judge give effect to evaluation that ought to be made on the documents placed before him, is one of fact or at best mixed law and fact. See Kwara State Water Corporation v. AIC (Nig.) Ltd (supra) at 1760-1761, paras G-H; A-C.
It was similarly submitted that ground 3 of the Notice Appeal is one of mixed law and fact because it merely challenges discretion exercised by the lower Court on the stage of proceedings where the learned trial Judge chose to consider the claim of the Appellant that the action was statute barred. The ground therefore was a challenge to the exercise of discretion by the lower Court.
In the Reply Brief, the learned counsel for the Appellants L.L.Akanbi, Esq. contended that all the grounds of appeal in the Notice are issues of pure law and that it was needless for the Appellant to seek for leave.
He argued that ground one of the Notice of Appeal is premised on jurisdiction of the trial Court which is an issue of law simpliciter and that such an issue does not require leave as envisaged in Section 242(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (hereafter referred to as “the Constitution”).
The Supreme Court decision in A.G. Kwara State v. Olawale (1993) 1 NWLR (Pt.272) p.645 at 662 paras B-D was relied upon where the Court held per Nnaemeka-Agu, JSC as follows:
“…Furthermore, ground 1 raises an issue of jurisdiction, based on facts found by the Court. This is a ground of law.”
Furthermore, in B.A.S.F. (Nig.) Ltd v. Faith Ent. Ltd. (2010) 4 NWLR (Pt.1183) p.104, the Supreme Court stated the position of law thus:
“A ground of law in an appeal has the under mentioned meaning:
(a) ………………………
(b) ………………………
(c) ………………………
(e) A ground of appeal which arises out of misunderstanding of the law by a trial or appellate Court or misapplication of the law to the proved or admitted facts is a ground of law.
A complaint about wrongful admission of evidence is also a question of law.”
The complain of the Appellant in ground 1 of the Notice of Appeal is that the learned trial Judge wrongly assumed jurisdiction despite the clear and undisputed pieces of evidence placed by the Appellant vide “exhibit F” showing that the suit is caught by the rule of rem-judiata and issue estoppel.
It was submitted that by virtue of S.242(1) of the Constitution and the decisions in A.G. Kwara State v. Olawale (supra) and B.A.S.F. (Nig.) Ltd w Faith Ent. Ltd. (supra), ground 1 in the Notice of Appeal is one of law which does not require the leave of the lower Court or this Honourable Court before came can be filed and argued.
It was further submitted for the Appellant that the contention of the 1st Respondent in respect of the nature of ground 2 of the Notice of Appeal is totally misconceived. It was argued that the said ground 2 complained about the failure of the learned trial Judge to discharge his judicial duty of considering or pronouncing on the reply to the Counter-Affidavit with the attached “exhibit F” and the Written Address placed before it by the Appellant before reaching a decision. It was argued that the complaint of the Appellant in ground 2 of the Notice of Appeal questions evaluation of evidential value of both exhibit C and F. It was submitted that the cases of Tawakalitu v. F.R.N. (2011) All FWLR (Pt 561) and Kwara State Water Corporation v. A.I.C. (Nig.) Ltd. (2009) All FWLR (Pt 485) 1738 were cited out of con and they are not relevant to our present case.
It was further argued for the Appellant that the Courts have stated in plethora of authorities including Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718; Ogbechi v. Onochie (1986) 2 NWLR (Pt 23) 484; Anogbalu v. Oraelosi (1999) 13 NWLR (Pt.634) 297 and B.A.S.F (Nig.) Ltd. v. Faith Enterprises Ltd. (supra) that:
“A complaint in a ground of appeal of failure of a Court to discharge its judicial duty of considering or pronouncing on the issue before it, involves a question of law alone.”
It is however pertinent that while the decision in the case of B.A.S.F. Nig. Ltd v. Faith Ent. Ltd. (supra) says failure of a trial Court to consider or pronounce on an issue before it, which is a question of law, the issue under reference is that ground 2 in the Notice of Appeal complains about whether there was a judgment placed before the trial Court to determine the issue of rem judicata. This is different from failure of trial Court to consider or evaluate evidence placed before it.
On grounds 3, the learned counsel for the Appellant contended that the ground has not in any way challenged the exercise of discretion by the learned trial Judge but rather an error by the lower Court to determine the issue of statute of limitation on the 1st Respondent’s Statement of Claim. It is submitted as rightly pointed out by the learned justice of this Court per Agube, JCA in Appeal No. CA/IL/55/2011 between Alhaja Raliat Oyenike Sanni v. Alhaii Iyanda Shuaib Lateju (Magaji Abudu for himself and on behalf of all members of Magaji Abuda family) & 2 Ors. delivered on the 25th day of June, 2012 quoting the decision of the Apex Court in B.A.S.F. Ltd. (Nig) Ltd. v. Faith Ent. Ltd. (supra) at page 42 where it was held that on an issue of statute of limitation is question of which the Court below had no discretion to exercise because the issue of statute of limitation must be answered in accordance with the settled principle of law.
In F.B.N. Plc v. T.S.A. Ltd. (2010) 4-7 S.C. (Pt.1) at 228, the Supreme Court held that where the ground of appeal shows that:
“(i) the trial Court or Appellate Court misunderstand the law or misapplied the law to the fact. It is certainly a ground of law; or (as in the instant case).
(ii) where the question which Court is bound to answer in accordance with a rule of law arise out of statutory provisions and interpretation of document (as in the instant case) it is on law.”
See also Anukani v. Anukani (2008) 1-2 S.C. 34 at 42; Ogbechie & Ors. v. Gabriel Onochie & Ors. (1986) 3 S.C. 54 and Paul Nwadike & Ors. v. Cletus Ibekwe & Ors. (1987) 12 S.C. 14 at 52-56.
It is also submitted that the issue of whether or not an action is statute barred is one touching upon the jurisdiction of the Court and the nature of issue of jurisdiction is an issue of law which is basic and fundamental which can be raised at any stage of proceedings. See NDIC v. C.B.N. (2002) 7 NWLR (Pt.766) 272; Ajayi v. Mil. Adm. Ondo State (1997) 5 NWLR (Pt 504) 237 and Egbe v Adefarasin (1987)
1 NWLR (Pt 47) 1.
A renowned Jurist Tobi, JCA (as he then was) in Aina v. Jinada (1992) 4 NWLR (Pt 233) 91 at 111 para G observed that the issue of statute limitation is a matter which a Court of law has no discretion to exercise in the matter.
The learned counsel for the Appellant urged the Court to dismiss the Preliminary Objection of the 1st Respondent and hear the appeal on the merit.
There is no doubt that a ground of appeal questioning the jurisdiction of the trial Court to entertain an action is one of law as submitted by the learned counsel for the Appellant L.C. Akanbi, Esq. It therefore does not require leave as envisage by section 242 of the Constitution.
The issue of statute bar or rem judicata are all issues supporting the contention that the trial Court lacks jurisdiction which formed the basis of the application dismissed by the lower Court and which in turn forms the bedrock upon which this appeal is laid. The Appellant certainly requires a leave in filing an interlocutory appeal on pure question of jurisdiction which is a ground of law.
On grounds 2 of the objection, the learned counsel for the 1st Respondent A.S. Ishola further argued that even if ground one is held to be one of law requiring no leave yet it is incompetent as it does not arise from the decision of the Court below. It was submitted for the 1st Respondent that the lower Court did not pronounce its jurisdiction on the matter and that the issue of jurisdiction is still hanging.
The law is well settled that jurisdiction is so fundamental that it hits the foundation of adjudication by any Court. Once raised, it must be resolved as a matter of expediency before proceeding to consider the matter on its merits. This is because lack of jurisdiction renders the entire proceedings null and void and a complete non-starter in law. This renders the null proceedings and any decision made other than that touching on jurisdiction void ab initio and liable to be struck out no matter how well conducted and beautifully decided. A defect in competence is both intrinsic and extrinsic to the adjudication. That is the wisdom behind its fundamental nature and the need to consider it first and foremost. It can be raised at any moment before any Court and even for the first time on appeal. Thus, the argument of the learned counsel for the 1st Respondent that the application before the Court challenged the Court’s jurisdiction but that it was not decided because the judgment of Afolayan, J of the same Court annexed was not properly headed or signed is in itself an appealable issue. Once jurisdiction is raised it must first be decided before taking any further step in the proceedings. The issue is strictly one of law requiring no leave to be appealed against.
The foregoing reasons equally apply to ground 3 of the preliminary objection that raises an issue of rem judiata and ground 4 that raises the issue of statute bar. These are issues of law purely, which do not require leave pursuant to section 242 of the Constitution. See B.A.S.F. Nig. Ltd. v. Faith Ent. Ltd. (2010) 4 NWLR (Pt.1183) 104; F.B.N. Plc v. T.S.A. Ltd. (2010) 4-7 S.C (Pt 1) 228 (supra).
It is also pertinent that the copy of the judgment of Afolayan, J that was tendered as exhibit F, once certified as a true copy thereof need not be signed by the Judge who endorsed the original judgment with his signature. It suffices if it is certified as a true copy of the original. A certified true copy of a public document is recognizable and admissible in evidence. Moreover as a judgment of Court of law, the Court may take judicial notice of it. In Gbaniyi Osafile & Anon v. Paul Odi & Anon (1990) LPELR-2783 (SC) the Supreme Court per Nnaemaka-Agu, JSC observed thus:
“Our law preserves the distinction between those facts of which the Court shall take judicial notice, when called upon by a party to do so, because those facts are notorious to him, on the one hand, and those facts which, in exercise of its powers under subsection (3) of Section 73 of the Evidence Act, he may, when called upon to Eke judicial notice of the fact, refuse to do so unless and until such a person produces the necessary material or he has informed himself property to enable him to do so when the former is the case, the Judge, once called upon to take judicial notice of the fact, proceeds to do so based on his general knowledge, memory and experience. In the latter case, a proper foundation must be laid for him to take notice of the fact. The only difference is that under section 73(2), even for matters falling within the first category he may resort for his aid to appropriate books or other documents or reference.
It follows from what I have been saying that every matter entitled to be judicially noticed has its appropriate and necessary foundation without which it cannot be judicially noticed. It must be noted that judicial notice is an anomalous appendage in the law relating to proof.”
See also the case of Global Soap & Detergent Ind. Ltd. NAFDAC (2011) LPELR-4202 (CA) where it was held thus:
“The Poser now is can the Court take judicial notice of documents even if they are unsigned? All Courts of law are enjoined by section 74 of the Evidence Act to take judicial notice of such laws, enactment and subsidiary legislations see the case of Nnaemeka Agu JSC (as he then was) in the case of Osafile u. Odi (1990) 2 NWLR (Pt.137) states as follows:
‘Our law preserves the distinction between facts of which the Court shall take judicial notice, when called upon by a party to do so, because those facts are notorious to, on the one hand and those facts which, in exercise of its power under subsection (3) of section 73 of the Evidence Act, refuse to do so unless and until such a person produces the necessary material or he has informed himself properly to enable him to do so.”
It is also pertinent to observe that argument on ground 5 as to whether the lower Court ought to have dismissed or merely struck out the Appellant’s application before it rather than dismissing same has nothing to do with the competence of the appeal or even that particular ground. It is a matter to be taken at the hearing of the appeal and the cross appeal. It has been equally raised as ground four in the Notice of cross Appeal thus:
GROUND FOUR-ERROR IN LAW
The learned trial Judge erred in law when he struck out the application of the Appellant/1st Cross-Respondent rather than dismissing it in its entirety.”
Other grounds of that Preliminary Objection have also been raised as grounds of cross appeal. A Respondent cannot base preliminary objection on the same grounds that support his Notice of Cross appeal. Preliminary objection primarily attacks the competence of an appeal or any ground thereof on the basis of incompetence while a Notice of Appeal or cross appeal attacks the decision of the lower Court or part thereof on grounds of error or misdirection in law or in fact. These two processes were apparently misconceived by the 1st Respondent in the Notice of preliminary objection, which glaringly lacks merit and it is hereby dismissed.
The appeal and the cross appeal will now be considered on their merits.
ISSUE ONE.
Whether there was no reliable judgment placed before the trial Court to enable the Court reach any conclusion on rem judicata and/or issue estoppel? (Ground 2)
The learned counsel for the Appellant argued that there was a reliable judgment placed before the learned trial Judge to enable the Court reach a conclusion on issue estoppel and rem judicata but the learned trial Judge failed to consider and give effect to same before coming to the decision that there was no judgment on which the Court could rely upon and that such error in the face of available facts has occasioned a grave miscarriage of justice.
The Appellant by her application dated 29th March, 2011 but filed on the 31st March 2011 prayed the trial Court to dismiss the 1st Respondent’s suit for being an abuse of Court process and for being incompetent. The grounds of the application among others are that; trial Court lacked the requisite competence to assume jurisdiction in the suit which is an abuse of Court process and is caught by issue estoppel and/or estoppel per rem judicata and that the action is also statute barred.
The said application is supported by 33 paragraph Affidavits, exhibits A-E and a written address (see pages 37-151 of the Record of appeal). The 1st Respondent herein, in opposing the application filed a counter-affidavit of 34 paragraphs and a written address (see pages 152-181 of the Record of appeal). The Appellant herein, in reaction to the said counter-affidavit to particularly paragraphs 7, 8, 9, 11, 12 and 16 and filed an 18 paragraphs reply to counter affidavit and a written address (see pages 182-190 of the Record of appeal).
The contention of the 1st Respondent as reflected in paragraphs 9 and 11 of the counter affidavit and paragraphs 3:06-3:13 of the written address, which the learned trial Judge predicated his decision upon was that exhibit C i.e Certified True Copy of the judgment of Afolayan, J in suit No. KWS/150/2003. Which the Appellant attached to her application is not a judgment of any competent Court because, there is no heading, no suit number, and it is not shown to be making of any Judge, despite the fact that same was certified by the Registrar of the lower Court.
The Appellant in reaction to the above referred counter-affidavit filed a reply to counter-affidavit and the written address. In paragraphs 10 -16 the Appellant deposed thus:
“10. That i know as a fact that one of the many issues or causes of action decided by the Court in Suit No. KWS/150/2003 was the question of acquisition and payment of compensation to Magaji Abudu family in respect of the family land, which is the subject matter of the present suit.
11. That contrary to paragraphs 9 and 11 of the counter-affidavit, I know as a fact that exhibit C attached to the application is a copy of the judgment in KWS/150/2003 and part of the record transmitted to the Court of appeal by the Registrar of this Honourable Court.
12. That further to the above, I know as a fact that, exhibit C attached to the application is as contained in the record used by the Court of appeal, Ilorin to arrive at the decision attached as exhibit D.
13. That further to the above, the 4th Defendant after appealing against the judgment of Afolayan J., the
Registrar of this Honourable Court compiled and transmitted the record of appeal which contained exhibit C to the Court of appeal. Attached herewith as Exhibit F is a copy of the complete record used by the Court of appeal, Ilorin judicial division.
14. That i know as a fact that, Exhibit C attached to the 1st Defendant’s instant application is contained on pages 118-133 of exhibit F.
15. That Claimant herein has not brought before the Honourable Court any other judgment of the High Court in KWS/150/2003.
16. That I know as a fact that the Claimant herein is being mischievous and desirous of misleading this Court by contending that exhibit C attached to the 1st Defendant’s application is not the judgment of the High Court of Justice of Kwara State in KWS/150/2005. (See pages 188-190 of the Record).”
The Claimant/1st Respondent did not file any Further Affidavit to deny the deposition relating to exhibit F. In effect, the depositions on exhibit F are deemed to be correct and true. See Babale v. Eze (2001) 11 NWLR (Pt.1257) 48 at 106 – 107.
It was further submitted that Exhibit F, which for all purposes remained unchallenged is associated with the Record of proceedings exhibit C. This is because Exhibit F clearly then document filed in the earlier case and decision of Afolayan J. Exhibit C which is on pages 309 -324 of the printed record, formed part and parcel of exhibit F. By the series of papers filed, in Exhibit F, it is clear that, Exhibit C is the judgment of Afolayan J. of the High Court of Justice of Kwara State between the named parties. (See pages 191 and 193 of the Record).
The complete Record of proceedings in Suit No. KWS/150/2003, which contained exhibit C was transmitted by the Registrar of the Court below to this Honourable Court and was used by this Honourable Court in Appeal No. CA/IL/87/2006 to arrive at the Court’s decision, attached as Exhibit D and which the 1st Respondent himself admitted were used and relied upon in Counter-Affidavit.
It was submitted for the Appellant that, the learned trial Judge failed to consider or seemed to overlook the facts contained in the reply to counter-affidavit, the written address and the attached Exhibit F before the trial Judge arrived at the decision that no reliable or competent Judgment was placed before the court when he held that:
“It may well be that it was an oversight on the part of the administrative staff of Mr. Afotabi’s office to have attached such a defective judgment to the motion, what is in excusable to me is the failure to rectify the error by procuring a duly authenticated copy of the judgment when the Claimant’s counsel challenged the authenticity of judgment.” (Underline for emphasis).
It was further contended that whatever doubt attributed to exhibit C, which the 1st Respondent challenged at the tower Court was clarified by exhibit F, which the learned trial Judge failed to consider in his ruling.
See Ogolo v. Fubara (2003) 11 NWLR (Pt. 831) 231 at 264 paras F-G where the Court held:
“An appellate Court is always bound by the record and the record only. It has no jurisdiction to go outside the record and draw conclusions which are not supported by the record.”
It is also trite that this Honourable Court is bound by its judgment see Usman v. Umaru (1992) 7 NWLR (Pt 255) 377.
The learned counsel for the Appellant submitted that the Court must consider all the relevant facts, materials and evidence whether oral or documentary placed before it in arriving at a decision. See S.B.N. Plc v. C.B.N. (2009) 6 NWLR (Pt.1137) 237 at 298 para H and 299 paras A-D where the Court held:
“The failure of the learned trial Judge to consider the entire evidence before him both oral and documentary before him both oral documentary before giving judgment in my view amounts to a serious misdirection rendering the judgment perverse.”
It was further observed in the same judgment at page 299 paras A-D thus:
It is trite law that when a Court overlooks vital evidence, thereby occasioning miscarriage of justice, the judgment will be set aside. See Lado v. The State (1999) 9 NWLR (Pt.619) 369.
In the Nigerian adjudicatory system, every decision of Court must be based on the evidence before the Court. Any decision of Court which fails to take into account the entire evidence before it is perverse and must not be allowed to stand by the appellate Court. See Isamade v. Okei (1998) 2 NWLR (Pt.538) 455.
The findings of the learned trial Judge is perverse and occasioned a serious miscarriage of justice against the Appellant. It is the duty of a trial Court in the judgment to demonstrate in full a dispassionate consideration of all the issues raised and heard and the judgment must reflect the result of such an exercise. See Ojogbue v. Nnubia (1972) ANLR 226 at 669.”
It was submitted for the Appellant that the failure of the learned trial Judge to consider the reply, the attached exhibit F and the written argument of the Appellant herein placed before him amounts to not dispassionately considering the Appellant’s case thereby occasioning a miscarriage of justice. See also Isamade v. Oke 1 (1998) 2 NWLR (Pt.538) 455 at 468 para, G where the Court held:
“In Nigerian adjudicatory system, every decision of Court must be based on the evidence before the Court
Any decision of a Court which does not take account of the evidence before it is perverse and must not be allowed to stand by an appellate Court.”
The learned counsel for the Appellant urged the Court to resolve the first issue in favour of the Appellant. The 1st Respondent’s two similar issues are as follows:
1. Whether the learned trial Judge was not right on his conclusion that there was no valid judgment of the High Court in Suit No. LWS/150/2003 placed before it to enable him find for the Appellant that the suit was caught by rem judicata or issue estoppel and whether with such conclusion, the lower Court was not right when he allowed the matter to proceed to trial. (Ground 1 and 2).
2. Whether the learned trial Judge was right in refusing to resolve the issue of statute of limitation raised by the Appellant on the pleadings rather than allowing the matter to go to trial as he so did. (Ground 3).
The foregoing two issues will be taken together with the Appellant’s broader three issues.
The learned counsel for the Respondent contended that the lower Court’s finding that there was no valid judgment before it to support the plea of rem judicata and issue estoppel in favour of the Appellant was anchored on the state of documents before the Court and the learned trial Judge’s finding that exhibit C was not authentic, where he held thus:
“On the issue of abuse of process on the ground of rem judicata and issue estoppel, I think the starting point for the resolution of the divergent posture of both parties lies in the preliminary point raised by Mr. Ishola regarding the validity of exhibit C. I have examined the judgment and I am inclined to agree with Mr. Ishola that it cannot be judgment of the High Court in Suit No. KWS/150/2003 as it neither contains the title of the case nor the name of the Judge. It is therefore not authentic…”
The learned trial Judge further observed that “the purported certification of the Registrar does not cure the defect.” “It was submitted for the 1st Respondent that the absence of the title of the case renders that exhibit short of qualifying as the judgment of the Court in Suit No. KWS/150/2003. It would otherwise have dragged the learned trial Judge into a speculative exercise on the exhibit. See Ibacehm Ltd. v. Visa Investment & Securities Ltd (2009) All FWLR (Pt 485) 1770 at 1787 paras B-D; Okotie v State (2012) All FWLR (Pt.607) 770 at 782 paras P-H; where this Court while faced with a situation not too dissimilar with the doomed fate that befell exhibit C before the lower Court, per Mukhtar JCA, held on the nullity of any portion of Record of proceedings that bear no name of the relevant Judge, as follows:
“It is also submitted by the Appellant’s counsel, on the second issue, that non-signing of the record of that day on which the Appellant was arraigned is fundamental and renders the record a nullity. It is pertinent that record of appeal is presumed to be correct and accurate unless otherwise deposed in an affidavit: the learned trial Judge ought to have signed the record of proceedings for the day and the certified record must indicate that it was signed by the learned trial Judge. The record for the day ended (at page 35 of the record) thus:
The accused shall be further remanded in prison custody. The case is adjourned to 1st April 2003 for continuation of trial.”
It has not been indicated if the record was ever signed by the learned trial Judge. In fact, the name of the presiding Judge is not even on the record much less an indication that it was signed. While the actual signature is on the original record, the certified copy must indicate that it was signed and the name of the Judge who signed must be stated. Failure to sign the record of the day of arraignment renders that portion of the record of proceeding void. The record of proceeding for accused’s arraignment at pages 29-35 which is null and void is hereby struck out.”
It was further contended that the production of exhibit F as a cure for the invalid and inauthentic nature of exhibit C was equally legally unhelpful to the Appellant as the lower Court held that “the purported certification of the Registrar does not cure the defect”. The learned counsel for the 1st Respondent urged the Court to hold that no valid judgment was placed before it to sustain the plea of res judicata raised by the Appellant. Reference was made to Ejowhomu v. Edok-Eter Ltd. (1986) 5 NWLR (Pt 39) 1 at 16 paras. F-G.
It is pertinent to draw a distinction between the facts and circumstances in Okolie v. State (supra) where there was no indication that the faulted arraignment proceedings were signed by the learned trial Judge as the name of the Judge who presided was not recorded for that day’s proceedings is fundamentally different from the instant case. In the case at hand, there is no controversy about the judgment being signed by the presiding Judge. The missing link in exhibit C is the title and suit number which otherwise appear on exhibit F, both of which were duly certified by the Registrar of the Court. Moreover, the record is not authenticated by title or suit number but by the signature of the presiding judge. A certified true copy of a public document is admissible. It was therefore wrong for the learned trial Judge to shut his eyes to such vital exhibit especially when the missing links he complains about are still before him. That derailment occasioned a clear miscarriage of justice and renders the decision of the Court below perverse and compelling enough for the Court’s intervention. There was clearly a certified true copy of a judgment placed before the lower Court to consider and determine the issue of res judicata. This issue is resolved in favour of the Appellant and makes the related ground 2 successful.
ISSUE TWO.
Whether the trial Court had jurisdiction to entertain the suit before the Court despite the clear and undisputed evidence showing that the suit is caught by estoppel- per rem judicata and/or issue estoppel? (Ground 1)
The learned counsel for the Appellant H.O. Afolabi, Esq. argued that the trial Court had no jurisdiction to entertain the 1st Respondent’s claim in view of the clear and unambiguous pieces of affidavit and documentary evidence showing that the suit as constituted before the lower Court is caught by estoppels per rem judicata and/or issue estoppels, and further, that the filling o(Sic) the claimant’s was an abuse of Court process.
The Appellant at the Lower Court, filed in support of her application to dismiss the suit the following processes/documents which relate to Suit No. KWS/150/2003:
(i) A 33 paragraphs affidavit;
(ii) Written address
(iii) An amended Statement of Claim of the Plaintiff (Exhibit ‘A’)
(iv) An amended Statement of Defense and Counter-claim of the Appellant herein (Exhibit ‘B’);
(v) A certified True Copy of the judgment of Afolayan in the above suit (Exhibit ‘C’);
(vi) A copy of judgment of the Court of Appeal in CA/IL/87/2006 affirming the decision of Afolayan J, in suit No. KWS/150/2003 (exhibit ‘D’;
(vii C.T.C. of Certificate of occupancy issued in favor of the Appellant herein (Exhibit ‘E’) and
(viii) The record of appeal in Appeal No. CA/IL/87/2007 which contained judgment of Afolayan J. used by this Court of Appeal to arrive at a decision attached to the Appellant’s application at the lower court (Exhibits F and D respectively).
The foregoing were the pieces of evidence place before the learned trial Judge to demonstrate that the suit of the claimant is caught by estoppel per rem judicata and/or issue estoppel and that the suit is statute barred. (See pages 46-64 of the record of Appeal). The Appellant’s application, the Affidavit in support with Exhibits A to F, written argument and Counter-Affidavit of the 1st Respondent and his written argument, there was no other document, placed before the learned trial Judge by the Respondent to show that there was another judgment, apart from the judgment of Afolayan attached to the application.
The 1st Respondent and one Mohammed Olateju are from the same extended larger Magaji Abudu family Ilorin, having the same legal interest in the land subject matter of this appeal.
The said Mohammed Olateju in 2003, sued the Appellant herein in Suit No KWS/150/2003 asking the Court for the following reliefs;
“(1) A declaration that the plaintiff has an equitable and customary interest and title in the land measuring 5.12 Hectares situate and Agbabiaka Area, Ilorin, Kwara State having acquired customary taw, title and possession from his predecessors in title in and undisputed long possession and the plaintiff’s said right cannot be defeated merely by the subsequently issuance of Certificate of occupancy No. 8183 to the Defendant.
(2) A declaration that the issuance of certificate of occupancy No. 8183 to the Defendant in so far and it covers the areas in the possession of the Plaintiff is wrongful, illegal and unconstitutional and in breach of the Fundamental Rights of the plaintiff entrenched in the constitution of the Federal Republic of Nigeria and the land Use Act, 1978.
(3) An order of the Court setting aside or directing the immediate cancellation of the certificate of occupancy No. 8183 issued in favour of the Defendant.
(4) A perpetual injunction restraining the Defendant her agents, privies, servants and or any person claiming through or under her from trespassing into the said parcel or piece of land.
(5) N5,000.00 damage for trespass”.
The case of Claimant in the above referred suit was that, the Kwara State Government did not acquire the land he inherited from his late father Magaji Abudu Olateju, who was the then Magaji (head) of the 1st
Respondent’s family and that the Kwara State Government having not acquired the said land cannot validly issue any certificate of occupancy to the Appellant herein.
It is also the case of the Claimant in the above referred suit that Magaji Abudu family, the 1st Respondent herein did not receive any compensation from the Appellant through Kwara State Government for any acquisition of their land.
The learned trial Judge Afolayan J. having carefully considered the case of the respective parties, found inter alia as reflected in the judgment that the Claimants’ family through their late Magaji, father of the Claimant in the above referred suit did in fact receive/collect compensation for and on behalf of the 1st Respondent family herein for the acquisition of the land subject matter of this suit.
The learned trial Judge further held that having received compensation for the acquisition of the land subject matter of this suit, the 1st Respondent’s family have been divested of the interest in the land and cannot lay any claim to it again. His Lordship Afolayan J specifically held as follows:
“…The era of technical is over, the Court strive to do substantial justice rather than adherence to technicalities which may occasion a miscarriage of justice. So I do not accept the submission of the learned plaintiff’s counsel on this, Exhibit D1 fully satisfied me that the defendant actually paid a compensation of N6,000.00 to Magaji Abudu and exhibit D1 is the receipt.
If a party calls evidence which reasonably satisfies the Court that the fact sought to be proved is established, the burden will shift on his adversary against whom judgment would be given if no more evidence were adduced. See S.1137(1) & (2) of the Evidence Act Cap.112 Law of the Federation 1990.
In determining who has a better title to the land ‘A’ & D3 on the one hand will be considered along with Exhibits D1 & B on the other hand. The right of Occupancy No. 8183 Exhibit D3 was issued and dated 19/5/89. The certificate of occupancy signed by the Governor was dated 21/12/1992. The meeting in respect of the land allocated in exhibit D1 & ‘A’ was held on 22/7/1993 which I have earlier held was wrong, if at this point, the Magaji Abudu refused and challenged Exhibit D3 and ‘A’ as invalid, they would have succeeded without any doubt because at that point the Magaji Abudu family had not been divested of their right on the land based on my earlier explanation on the procedural irregularity adopted by the ministry of lands and Housing, “But Exhibit D1 has brought in a new dimension. In Exhibit ‘B’ the meeting held on 22/7/93 at page 2, last paragraph the Magaji Abudu Plaintiff father promised to convey the acquisition message to his family and the act of coming back on 22/10/93 to collect the N6,000.00 compensation on land allocated to the defendant in TPO166, Certificate of Occupancy No 8183 to my mind is a ratification of the ad of the Ministry of Lands and Housing which was initially wrong. The N6,000.00 collected by the Magaji Abudu family as the family head authorized to collect such compensation on behalf of the family has not been denied.
There is no evidence that the money has been refunded to the defendant up till now, will it then be equitable to allow the Abudu family to eat their cake and have it?
This will not be equitable and will occasion a miscarriage of justice.”
Underline for emphasis. (see pages 319 to 320 of the Record).
As Claimant in the suit referred to above, was not satisfied with the decision of Afolayan J., he appealed to the Court of appeal in Appeal No. CA/IL/87/2006: Between Mohammed Ayinla Olateju v. Alhaja Raliat Oyenike Sanni and the Court of appeal affirmed the decision of the learned trial Judge to the extent that the Claimant in the suit failed to prove his case. (See pages 91-151 of the Record)
The Appellant herein, in the said suit also cross-appealed against some portion of the judgment of the lower Court on the ground that the learned trial Judge having found that the Claimant in the said suit failed to prove his case, he cannot make any findings on the propriety or otherwise of the method adopted in the acquisition of the land in dispute by the Kwara State Government.
The judgment of Afolayan J. and the finding therein that the Magaji Abudu family have been paid compensation and their land acquired has not been set aside by any superior Court. It is trite law that a judgment or finding of a Court of law is valid until it is set aside. See Aladegbemi v. Fasanmade (1988) 3 NWLR (Pt 81) 129.
The learned counsel for the Appellant submitted that the issue of ownership of the land in dispute has been laid to rest and the issue of whether the Kwara State Government acquired the 1st Respondent land having collected compensation by their 9th Magaji for and on behalf of the 1st Respondent has been resolved by Afolayan J. and same having been resolved by Afolayan J, the learned trial lacked the jurisdiction, competence and power to revisit, review and/or sit as an appellate Court on this same issue again. See Peter v Ashamu (1995) 4 NWLR (Pt.388) 206.
It was further submitted that the judgment of the High Court of Kwara State by Afolayan J. in Suit No. KWS/150/2003 at pages 320 of the record of appeal, which decision this Honourable Court affirmed in Appeal No. CA/IL/87/2006, held as follows:
“In determining who has a better title to the land exhibit ‘A & D’ on the one hand wilt be considered along with exhibits D1 & B on the other hand. The Right of Occupancy No. 8183 exhibit D3 was issued and dated 19/5/89. The Certificate of Occupancy signed by the Governor was dated 21/12/1992 The meeting in respect of the land allocated in exhibits D1 & A was wrong, if at this point, the Magaji Abudu refused and challenged exhibits D and A as invalid they would have succeeded without any doubt because at that point the Magaji Abudu family had not been divested of their right on the land based on my earlier explanation on the procedural irregularity adopted by the Ministry of Lands and Housing. But exhibit D1 has brought in a new dimension. In exhibit ‘B’ the meeting held on 22/7/93 at page 2, last paragraph the Magaji Abudu Plaintiff’s father promised to convey the acquisition message to his family and the act of coming back on 22/10/1993 to collect the N6,000.00 compensation on land allocated to the Defendnat in TPO166, Certificate of Occupancy No. 8183 to my mind is a ratification of the act of the Ministry of Lands and Housing which was initially wrong. The N6,000.00 collected by the Magaji Abudu family as the family head authorized to collect such compensation on behalf of the family has not been denied.
There is no evidence that the money has been refunded to the Defendant up till now, will it then be equitable to allow the Abudu family to eat their cake and have it?
See page 320 of the Record.
In any incidence of acquisition of land, it is the payment of compensation that extinguishes whatever right a family might have on the land.
The learned counsel for the Appellant significantly observed the following:
(i) Parties agreed that the land subject matter of this suit is the same land involved in KWS/150/2003;
(ii) The 1st Respondent herein, the 9th Magaji of the 1st Respondent’s family who collected compensation on behalf of the 1st Respondent from the Appellant through Kwara State Government and one Mohammed O.S. Olateju, who was the Claimant in Suit No. KWS/150/2003 as well as the 4th Defendant in Suit No. KWS/301/2010, subject matter of this appeal all belong to the same Magaji Abudu family of
Ilorin.
(iii) Alhaji Mohammed Ayinla Olateju was the 9th Magaji of the Magaji Abudu family;
(iv) Alhaji Mohammed Ayinla Olateju was the 1st Respondent’s predecessor in office, hence the 1st Respondent is a privy of Alhaji Mohammed Ayinla Olateju;
(v) The High Court on KWS/150/2003 found among others in its judgment that Alhaji Mohammed Ayinla Olateju collected compensation from Alhaja Oyenike Sanni through Kwara State Government for the acquisition of the Magaji Abudu family, which was later granted to Alhaja Oyenike Sanni, which judgment was affirmed by this Honourable Court in Appeal No. CA/IL/87/2006; and
(vi) The finding of the High Court in KWS/150/2003 to the effect that Alhaji Mohammed Ayinla Olateju received compensation on behalf of Magaji Abudu family is still extant. The Court of appeal dismissed the appeal against the judgment of Afolayan J. in KWS/150/2003.
It is well settled principle of our jurisprudence that there must be certainty in litigation at all times and it will not augur well for our administration of justice for the Courts to be making contradictory findings and orders in respect of the same subject and same issue. In Peters v. Ashamu (1995) 4 NWLR (Pt.388) 206 at 222 paras. B-D Pat Acholonu JCA (of blessed memory) (as he then was) stated the position thus:
“The theory of justice to which we adhere rests prior on the premise that there must be a certainty and parties to the legal duel should be in a position to know where they stand at a certain time. A system of law where Judges of the same degree i.e. of inordinate jurisdiction make contradictory and inconsistent orders in respect of the same subject matter involving the same parties i.e each relying on his whims, caprices, prejudices and sometimes a vaunting ego, makes nonsense and mockery of the law The beauty or what I might describe as the romance of law is that just as stare decisis exercise a restraining influence on our Courts, so too do discipline in the Courts in dutifully adhering to normative order by which Courts of co-ordinate jurisdiction do not sit on appeals on each other, attracts respect of law.”
It was submitted for the Appellant that the lower Court cannot reopen, revisit and/or review the finding of Afolayan J. in Suit No. KWS/150/2003 on the issue of payment and/or collection of compensation by 1st Respondent’s family.
The learned counsel for the Appellant further submitted that the learned trial Judge lacked jurisdiction to entertain the claim of the 1st Respondent which is an attempt to re-litigate an issue or claim already decided by a Court of competent jurisdiction and this Honorable Court. The appropriate order to make in this circumstance is to dismiss the claim of the 1st Respondent. See Arubo v. Aiyeleru (1993) 3 NWLR (Pt.280) 126.
The Court was urged to resolve this issue in favour of the Appellant.
The response of the learned counsel for the 1st Respondent was centered on the failure of the Appellant to tender an acceptable copy of the judgment
Having found under issue one that the lower Court was bound to recognize the CTC of the judgment exhibit C, which is also incorporated in exhibit F annexed to the supporting affidavit, this issue cannot but be resolved in favor of the Appellant thereby making the related ground 1 successful.
ISSUE THREE
Whether the Plaintiff’s suit is not statute barred? (Ground 3).
This issue, in view of the success of issues one and two, has become moot. The Limitation Law of Kwara State is only applicable in situations where there is a delay for more than 10 years from the date of accrual of cause of action to the date of filing the action. It does not apply to a case already determined at both Court of first instance and appellate Court. It is purely academic in nature in to which the Court will not delve. The third issue is accordingly discountenanced as a non-issue.
The success of the first and second issues has qualified this appeal as meritorious and it is hereby allowed.
Correspondingly, for the same reasons, the cross appeal is rendered insignificant and reduced to mere academic postulation, just like issue 3 in the main appeal it is similarly discountenanced.
The decision of the Court below delivered on the 3rd July, 2011 is hereby set aside following the success of the appeal. In its stead it is hereby ordered that the suit filed by the Respondent at the lower Court which is caught by rem judicata and which constitutes an abuse of Court process be and same is hereby dismissed.
The Appellant is entitled to cost assessed at N50,000:00 against the Respondents.
OBANDE FESTUS OGBUINYA, J.C.A.: I was privileged to read, in advance, the judgment delivered by my learned brother, Hussein Mukhtar, JCA, and I agree, whole heartedly, with the conclusions embedded in it.
The meat of the first respondent’s preliminary objection is that the appellant’s three grounds of appeal are grounds of facts or mixed law and facts which necessitated leave of court before filing the notice of appeal. It is axiomatic, discernible from loads of decided judicial authorities, that to differentiate between a ground of law, on the one hand, and a ground of fact or mixed law and fact, on the other hand, is a stubborn and perennial judicial exercise. The dichotomy between them, though slim and subtle, has agitated the well-informed legal minds in this country and tons of ink expended on it. A ground of appeal does not translate into a ground of law or fact or mixed law and fact because it is so couched by the appellant. In other words, the manner an appellant has labelled a ground of appeal does not bring out the class of ground it belongs, id est, law, fact or mixed law and fact. To decipher whether a ground of appeal is of law or fact or mixed law and fact, a court has the bounden duty to, thoroughly and assiduously, examine the ground with its accompanying particulars. These cardinal principles on classification of grounds of appeal have been sanctified in an army of authorities, see Opuiyo vs. Omoniwari (2007) 9 MJSC 187/(2007) 16 NWLR (Pt. 1060) 415; MDPDT vs. Okonkwo (2001) 3 SC 76; Thor Ltd vs. FCMB Ltd (2008) 4 SCNJ or (2002) 4 NWLR (Pt.757) 427; Akanbi vs Salawu (2003) 13 NWIR (Pt.838) 637; Garuba vs/ K.I.C. Ltd (2005) 5 NWLR (Pt.917) 160; FBN Plc vs TSA Ind. Ltd (supra); General Electric Co. vs. Akande (2011) 18 NWLR (Pt.1225) 596; Odumkwe vs Ofomata (2010) 18 NWLR (Pt.1225) 404;Okwugbala vs Ikwueme (2010) 19 NWLR (Pt. 1226) 54; Garuba vs Omokhodion (supra); Abubakar vs
Waziri (2008) 14 NWLR (Pt. 1108) 507; Ugboaja vs Akitoye-Sowemimo (2008) 16 NSILR lPt. 1113) 278; Ehinlanwo vs Oke (2008) 16 NWLR (Pt. 1113) 357; M.M.A. Inc. vs. NMA 12012) 18 NWLR (Pt. 1333) 506.
In keeping with the above displayed position of the law, I have given a microscopic examination to the appellant’s three grounds of appeal, sought to be impugned by the respondents. The heart of the three grounds is that the lower court was drained of the jurisdiction to entertain the first respondent’s action whence this appeal germinated from. An issue of res judicata, which is the fulcrum of grounds 1 and 2, is a question of jurisdiction in that where an action is caught in its intractable web, a court is stripped of the vires to determine such a matter, see Adigun vs. Gov., Osun State (1995) 3 SCNJ 1; Ajibola vs. Ishola (2006) 13 NWLR (Pt. 998) 628; Dakolo vs. Rewane-Dakolo (2011) 16 NWLR (Pt.1272) 22. Similarly, the focus of ground 3 is that the first respondent’s suit is statute-barred.. Indisputably, an issue of limitation law is one that borders on jurisdiction, see Owners of the MV “Arabella vs. NAIC (2008) 10 NWLR (Pt. 1097) 182; Nasir vs. C.S.C., Kano State (2007) 5 NWLR (Pt. 1190) 253; JFS Inv. Ltd vs. Brawal Line Ltd (2010) NWLR (Pt. 1225) 495; Olagunju PHCN Plc (2011) 10 NWLR (Pt.1254) 113.
It is trite law that a ground of law which calls to question the existence or otherwise of the jurisdiction of a court is a ground of law, see General Electric Co. vs. Akande (2010) 18 NWLR (Pt.1225) 596. On this score, the appellant’s three grounds of appeal, which launch vitriolic attacks on the jurisdiction of the lower court to try the first respondent’s action, are grounds of law. It admits of no argument that the decision of the lower court is an interlocutory one since the rights of the parties have not been finally disposed of, see Igunbor vs. Afolabi (2011) 11 NWLR (Pt. 723) 148; Ogolo vs. Ogolo (2006) 5 NWLR (Pt. 972) 163; Owoh vs. Asuk (2008) 16 NWLR (Pt. 1112) 113; Gomez vs. C & S.S. (2009l 10 NWLR (Pt. 1149) 223; General Electrical Co. vs. Akande (supra).
Be that as it may, for the fact that the grounds are questions of law alone, the appellant is entitled to appeal against the interlocutory decision, taking shelter under the provision of Section 241(1) of the 1999 Constitution, as amended, without procuring the leave of the lower court or this court as decreed by section 242(1) of the Constitution, as amended, without infuriating the law, see Ogbechie & Ors vs. Onochie & Ors (No. 1) (1986t 1 NSCC Vol 17 443/(1986) 3 SC 54/(19861 2 NWLR (Pt. 23) 484; UBN Plc. vs. Songunro (2006) 16 NWLR (Pt. 1006) 504; Garuba vs. Omokhodion (2011) 15 NWLR (Pt. L269) 146; Thor Ltd vs. FCMB Ltd (2002) 4 NWLR (Pt.757) 427; Ugboaja vs. Akitoye Sowemimo (2008) 16 NWLR (Pt. 1113) 278; Akinyemi vs. Odu’a Inv. Ltd (2012) 17 NWLR (Pt. 1329) 2091. Simply put, the three grounds of appeal, sought to be invalidated, are not, in the least, offensive to the law.
Overall, I find no vitiating elements in them to warrant the invocation of the provision of section 242(1) of the Constitution, as amended, against them. It flows, in the light of these legal expositions, that the first respondent’s preliminary objection stands on quicksand and, ipso facto, susceptible to collapse. All in all, I overrule the preliminary objection for want of legal justification.
Consideration of the appeal
The kernel of the appellant’s grievance is that the first respondent’s action is trapped in the den of res judicata so that the lower court was not clothed with the requisite jurisdiction to determine it.
The expression, estoppel per rem judicatam, which has acquired the sobriquet, “res judicata”, traces its lexical roots to the Latin Language in the original term of res adjudicata. Res judicata, now a common place term in the Nigerian legal system, simply connotes, “a thing adjudicated.” The very essence of the principle of res judicata is that a verdict that was previously handed down in the court of law would constitute a bar to another action in the same terms. It is a principle that is grounded on a public policy with the aim to put an end to litigation on a particular subject-matter between the same parties which is clearly encapsulated in the two legal maxims-interest reipublicaeut sit finis litium, it is in the interest of the public that there be a limit to litigation, and nemo debet bis verari pro una eadem causa, no man should be troubled twice for one and the same cause. For the principle to apply, it must be shown that: the parties in the previous action and in the present action are the same, the subject-matter in the two actions are the same, the issue (s) in the two actions are the same and the court that decided the previous action must be a court of competent jurisdiction which gave a final decision. These meaning and attributes of res judicata have been confirmed in a battery of judicial authorities, see Abiola & Son Bottling Co. Ltd v. 7 Up Bottling Co. Ltd (2012) 15 NWLR (Pt. 1322) 184; Igwego v. Ezeugo (1992) 6 NWLR (Pt. 249) 561; Okposim v. Assam (2005) 14 NWLR (Pt. 945) 495; Abubakar v. B.O. A.P. Ltd. (2007) 18 NWLR (Pt. 1066) 319; Alapo v. Agbokare (2010) 9 NWLR (Pt. 1198) 30; Yusuf vs. Adegoke 11 NWLR (Pt.1045) 332; Ayuya v. Yorin (2011) 10 NWLR (Pt.1254) 135; D.T.T. Ent. Co. (Nig.) Ltd. v. Buhari (2011) 8 NWLR (Pt.1249) 387; Makum v. F.U.T., Minna (2011) 18 NWLR (Pt.1278) 190.
It is germane to remark that where a plea of res judicata is successful, a court of law is stripped of the requisite jurisdiction to adjudicate over the matter in court in which it is raised. Of course, needless to say that, the reverse is true, that is, where the plea is a non-starter, the court will be invested with the competence to entertain the matter in question, see Adtgun vs. Gov., Osun State 1 (1995) 3 SCNJ 1; Ajibola vs. Ishola (2006) 13 NWLR (Pt. 998, 628; Dakolo vs. Rewane-Dakolo (2011) 16 NWLR (Pt.1272) 22.
Given these dissected positions of the law, the knotty question, begging for an answer, is: is the first respondent’s suit caught by the doctrine of res judicata? I will first visit the composition of the parties in the two suits the previous and the present – suit No. KWS/150/2003 and suit No. KWS/301/2010 respectively. The claimant in the previous action was Mohammed Olateju who hailed from the same Magaji Abudu family of the first respondent. In other words, the two claimants in the two suits are from the same family extraction. It follows that the two claimants in the two suits are parties by being privies and the action of one binds the other, see Coker vs. Sanyaolu (1976) 10 NSCC 566; Balogun vs. Adejobi (1995) 1 SCNJ 242; Adone vs. Ikebudu (2001) 7 SCNJ 513; Oyerogba vs. Olaopa (1998) 11 & 12 SCNJ 115; Abubakar vs. B.O. & A. P. Ltd (2007) 18 NWLR (Pt.1066) 319; L.S.B.P.C. vs. Purification Tech. l2013) 7 NWLR (Pt. 1352) 82. Interestingly, the appellant was/is party to the previous suit as well as the present action which metamorphosed into this appeal. The first respondent’s addition of the second and third respondents to the present action is of no moment as it does not, in the least, detract from the oneness of parties in the two actions. On this viewpoint, I draw on the case of Abubakar vs. B.O. & A. P. Ltd (supra), at pages 373 – 374, where Tobi, JSC, intoned:
“In considering the application or applicability of the principle or doctrine, the court should remind itself of the tricks the parties, at times, play to beat its application. This is the only way to meet such parties’ full length rather than half-length. This arises when a party, at times, includes nominal or docile parties and he will be quick in telling the court, for example, that the previous matter had three defendants as opposed to the current one which has four defendants. The inclusion of the fourth defendant could be a charade or farce. There are also instances when the party includes an additional relief or reliefs, which are inactive, as functioning only as appendage or peripheral to the main issue or issues to the extent it does not add anything substantial to the main issue or issues. There are times when parties play with words to present a camouflage that the issues are different when in reality they are not. The trial Judge, in the use of the eyes of an eagle, will be able to remove the chaff from the grain and decide whether the principle or doctrine of res judicata is applicable or inapplicable.”
It seems clear to me that the first respondent counted in the second and third respondents in the present suit to make it look distinct from the previous action. The parties are symmetrical. After all, the parties must not be like siamese twins. The respondent cannot benefit from the legal maxim, res inter alios, acta alteri nocere non debet things done between others ought not to injure an outsider, noted in the cases of: Clay Industries (Nig) Ltd vs. Adeleye Aina (1997) 7 SCNJ 49; Anyanwoko vs. Okoye (2010) 5 NWLR (Pt.1188) 497; Cotecna Int’l Ltd vs. Churchgate (Nig) Ltd (2010) 18 NWLR (Pt.1225) 345. In all, the appellant established the first condition for the application of res judicata.
I have juxtaposed the subject matter and claims in the previous action with those of the present suit. The two actions centre on the same res-title to a parcel of land measuring 5.12 Hectares and lying in Agbabiaka Area, Ilorin, Kwara State. The reliefs in the duo actions are identical-declaratory reliefs, injunctive reliefs and damages. I am not oblivious of the fact that the first respondent factored four more reliefs into the present action against the second and third respondents. On the authority of Abubakar vs. B. O. & A.P. Ltd. (supra), those new reliefs do not derogate from the sameness of the Res and claims in the two actions. The net effect of these similarities is that the appellant has proved that the subject matter and issues in the two actions are not mutually exclusive.
The previous action was instituted in the High Court of Kwara State, coram, Afolayan, J. That court, which is of the same judicial status and shares coordinate jurisdiction with the lower court, was competent to handle that action and delivered final decision therein. In so far as that High Court of Kwara State, presided over by Afolayan, J., was the forum competent for the adjudication of the first matter, the appellant satisfied this requirement for a proper invitation of the concept of res judicata against the present action. Lest it is forgotten, the decision in the previous suit was affirmed by this court in CA/IL/87/2006 on 07/06/2010. In the eyes of the law, even if that decision is still on its way to the Supreme Court, it still constitutes res Judicata until it is set aside. Exultantly, the apex court has sanctified this principle of law, see Abiola & Sons Bottling Co. Ltd vs. 7Up Bottling Co. Ltd (supra).
In the light of the foregoing, it is crystal clear that the appellant fulfilled the conditions, which are the prerequisites, for the deployment of the doctrine of res judicata against the present action which mutated to this appeal. The lower court’s assumption of jurisdiction over the later action, which gave rise to the appeal, is an illegitimate attempt to sit on appeal over its decision in the previous action since there is only one High Court of Kwara State as ordained by section 3 of the High Court Law, Cap H2, Laws of Kwara State, 2007. It is a flagrant defilement of the law for a court to sit on appeal over its own decisions, see Adeogun vs. Fashogbon (2008) 17 NWLR (Pt. 1115) 149; Adeogun vs. Fasogbon (2011) 8 NWLR (Pt. 1250) 427; Famu vs. Kassim (2013) 7 NWLR (Pt.1352) 166. Grounded on the binding concept of res judicata, the lower court is divested of the necessary jurisdiction to entertain the present action. What the lower court did, with due reverence to it, constitutes an affront to the law which is to the appellant’s advantage in this appeal. On this premise, I have no option than to resolve issue two in favour of the appellant.
It is for these reasons, coupled with those encapsulated in the leading judgment, that, I too, allow the appeal with the same ord.ers as made therein.
TIJJANI ABUBAKAR, J.C.A.: I agree.
Appearances
H.O. Afolabi with L.L. AkanbiFor Appellant
AND
A.S. Ishola with I.O. Salawudeen for the 1st Respondent/Cross Appellant
I.G. Jubril C.S.C for the 2nd and 3rd RespondentsFor Respondent
