MANU GIWA LAGA v. ALH. ABDULLAHI DAN HAMA & ANOR
(2019)LCN/13253(CA)
(2019) LPELR-48140(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 14th day of May, 2019
CA/S/169/2018
RATIO
RES JUDICATA: THE EFFECT OF RES JUDICATA ON THE JURISDICTION OF A COURT
It needs also be restated that the plea of res judicata when successfully raised, has the effect of ousting the jurisdiction of the Court since it entails that the matter had been conclusively determined as between the parties or their privies by a competent Court and there is nothing left for the present Court to determine. This is why the plea when successful, operates not only against the parties but also against the Court itself robbing it of jurisdiction to entertain the same cause of action on the same issues that has previously been determined by a Court of competent jurisdiction between the parties.PER AMINA AUDI WAMBAI, J.C.A.
RES JUDICATA:NECESSARY INGREDIENTS FOR ITS SUCCESS
However, it is trite that for the principle of res judicata to apply in any proceedings, the party relying on the plea must establish that (1) there is a judicial decision and the Court that delivered the decision had jurisdiction over the parties and the subject matter (2) the claim or issue in dispute in the proceedings are the same, (3) the decision upon which it is based is valid, subsisting, final and on the merits, (4) the decision must determine the same question as that raised in the later litigation, and (5) the parties to the later litigation were either parties to the earlier litigation or their privies, or the earlier decision was in rem.
In ACHIAKPA V NDUKA (2001) 7 SC (PT. 111)126 as in AFOLABI V GOV OF OSUN STATE (SUPRA) the Supreme Court laid down the conditions for the applicability of estoppel per rem judicata as follows; that
(a) The parties (or other privies as the case may be) are the same in the present case as in the previous case;
(b) the issue and subject matter are the same in the previous suit and the present suit.
(c) the adjudication in the previous case must have been given by a Court of competent jurisdiction; and
(d) the previous decision must have finally decided the issues between the parties.
See also ADEYEMI BERO VS LSDPC (2012)8 NWLR (Pt 1356)238, HONDA PLACE LTD VS. GLOBE MOTOR HOLDING NIG. LTD (Supra).PER AMINA AUDI WAMBAI, J.C.A.
RES JUDICATA: HOW TO PROVE AND THE NATURE OF THE PRINCIPLE
Once these conditions are satisfied, the previous decision estopps the party from making any claim contrary to the previous one. See AJIBOYE V ISHOLA (2006) 6 – 7 SC 1. Conversely, the conjoined nature of these conditions makes them inseparable from each other and the absence of any of the constituents or components of the whole renders the doctrine impotent. Therefore, failure to establish any of the listed conditions in the new suit renders the plea inapplicable. See MAKUN Vs. FUT. MINNA (supra); OKE V OTOVE (SUPRA), BASSEY V EKANEM (2001) 1 NWLR (694) 360; DANIEL T.T. ENT. NIG. CO. LTD. V BUSARI (2011) 8 NWLR (1249) 387.PER AMINA AUDI WAMBAI, J.C.A.
RES JUDICATA: IT IS A QUESTION OF FACTS
Indeed, the applicability of this principle in any given case is a question of fact. The question whether the previous judgment/decision operates as an estoppel to the present suit in the sense that the parties or their privies, the issue and or the subject matter in the previous suit conclusively decided by a competent Court of law are the same with the present suit, entirely depends on the facts of each case.PER AMINA AUDI WAMBAI, J.C.A.
JUSTICE
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
MANU GIWA LAGAAppellant(s)
AND
1. ALH. ABDULLAHI DAN HAMA
2. ABDULLAHI BADORespondent(s)
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): The appeal before us is against the decision of the Kebbi State High Court, Birnin Kebbi, delivered on 12th November, 2018, which went against the Appellant.
The Respondents as claimants before the lower Court in Suit No. KB/HC/3/2018 claimed against the Appellant as defendant the following principal reliefs.
1. A DECLARATION that the Claimants, being the legal heirs of late Habbi and Allami, (the only heirs of late Dandare Ajiya) are the rightful owners, to the exclusion of all other persons (the Defendant inclusive), of the farmland in dispute located at Binji towards the western part of Laga village, Ambursa District, Birnin Kebbi Local Government Area, Kebbi State.
2. A DECLARATION that the Defendant, not being among the legal heirs of either Dandare Ajiya or Habbi and Allami, has no right or interest whatsoever over the farmland in dispute.
3. A DECLARATION that the Defendant’s entry into the farmland in dispute and remaining thereon despite several demands by the Claimants to vacate same, constitutes an act of trespass.
4. AN ORDER of this Honourable
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Court directing the Defendant to pay the sum of One Million Naira (1,000,000.00) to the Claimants as general and exemplary damages for trespass.
5. AN ORDER of perpetual injunction restraining the Defendant either by himself, his privies, assigns, workmen, agents or howsoever called or any other person claiming title through them, from further entry, farming, developing or in any way dealing with the farmland in dispute.
By a Notice of Preliminary Objection filed on 6/3/18 in Motion No. KB/HC/M84/2018, the Appellant challenged the competence of the suit and the jurisdiction of the Court to entertain the action on the ground that the subject matter of the suit had been determined by the Sharia Court of Appeal between the same parties. Ruling on the preliminary objection was adjourned to 26/6/18.
Meanwhile, the respondents vide a Motion on Notice No. KB/HC/M138/2018 filed on 21/5/2018 sought for joinder of 3 persons, namely Muhammad Buda, Usman Bala and Usman Garba as co-defendants to the suit. Ruling was delivered on 12/11/18 granting that application. Aggrieved, the appellant through his counsel, Nasiru Sahabi, Esq., commenced this appeal
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the Notice of which was filed on 26/11/2018 predicated on the following 3 grounds, namely
1. The ruling delivered by the lower Court is against the weight of evidence
2. The ruling delivered by the lower Court was statute barred.
3. The lower Court lacks jurisdiction to entertain Suit No. KB/HC/3/2018 Particulars
a. In suit No; KB/HC/3/2018 the respondents claim is purely right of inheritance of some farmlands between the appellant and the respondents.
b. The lower Court lacks jurisdiction to entertain issue of Inheritance which is exclusive jurisdiction of Shariah Court of Appeal.
c. The subject matter of claim in suit No; KB/HC/3/2018 was determined by a Court of co-ordinate jurisdiction i.e. Kebbi State Shariah Court of Appeal in Suit No: SCA/KBS/BK/25/2016 on 4/4/2017.
From these 3 grounds of appeal, the learned Appellant’s counsel, in a brief of argument filed on 29/01/2019 formulated two issues for determination, to wit: –
A. Whether the ruling delivered by the lower Court on motion No; KB/HC/M.138/2018 on 12/11/2018 after the conclusion of hearing and adopting the final address by the plaintiff respondent
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counsel on the 7th day of June 2018 was delivered out of the statutory period prescribed by Section 294(1) of the constitution of Nigeria 1999 as amended
B. Whether the lower Court lacks jurisdiction to entertained (sic)suit No KB/HC/3/2018.
These issues were adopted by the learned Respondent’s counsel, A. A. Fingilla, Esq., in the Respondent’s brief of argument filed on 1/3/2019, in the event that his Notice of preliminary objection raised and argued in the brief of argument challenging the competence of the appeal, fails.
It is necessary, as demanded by law, whenever a preliminary objection is raised to the competence of an appeal, to first consider and determine the objection before delving into the determination of the appeal. The Court is obliged to first consider and express its opinion on it one way or the other; whether it agrees with the respondent or not, before proceeding to consider the substantive appeal. This is necessary because a successful preliminary objection may have the effect of disposing the appeal. See FBN PLC V TSA INDUSTRIES LTD (2010) 15 NWLR (PT 1216) 247, Ogoja V. Offoboche (1996) 8 NWLR (Pt. 458)
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48; Katto v. CBN (1991) 9 NWLR (Pt. 214) 126; ANPP V. R.O.A.S.S.D. (2005) 6 NWLR (Pt. 920) 140, and it matters not whether the objection is frivolous or not, it should not be ignored. See Nwanta v. Esumei (1993) 8 NWLR pt. 563 pg.650. Tambio Leather Works Ltd. v. Abbey (1998) 12 NWLR pt. 579 pg. 548.
The ground for the objection as argued for the Respondents is that the Notice of appeal filed on the 26/12/2018 was filed 15 days after the delivery of the decision on the 12/11/2018 outside the 14 days permitted by law and without an enlargement of time sought and obtained by the Court to file same out of time thereby making the Notice of Appeal incompetent. The cases of FRN v Tawakalitu (2013) 54 NSCQR (Pt I) 544, 531 and Creekview Property Development Co. Ltd. Vs Ebun-Olu Adegboruwa (2011) 3 NWLR (Pt 1234) 239 at 246 were cited in support.
The Appellant’s learned counsel did not file a reply brief to respond to the preliminary objection. That notwithstanding, the question to be resolved in this preliminary objection is a question of fact which can be resolved by having recourse to the record of appeal before this Court. From the record of
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appeal before us, as rightly submitted, the decision appealed against was handed down on the 12/11/2018 and the Notice of appeal against the decision was filed on the 26/11/2018. The pertinent question is whether the difference between the 12/11/2018 and 26/11/2018 is more than the period prescribed for the filing of interlocutory appeal.
By virtue of Section 24 (1) (2)(a) of the Court of Appeal Act, where a person desires to appeal, he shall give notice of appeal or notice of his application for leave to appeal in such a manner as may be directed by the Rules of the Court within the period prescribed by sub-section 2, and in the case of an appeal in a cause or matter, fourteen days where the appeal is against an interlocutory decision as in the case at hand, and three months where the appeal is against a final decision. The law thus requires that an appeal against an interlocutory decision such as the instant one shall be filed within 14 days from the date of the interlocutory decision. By this provision, for a party seeking to appeal an interlocutory decision to be able to freely exercise such a right, he must file his Notice of appeal within this
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prescribed period of 14 days from the date of the decision or seek extension of time to do so after the expiry of the 14 days. See FCDA Vs Kori Pamo Agary (2010) 14 NWLR.
The pith of the matter in this preliminary objection therefore is whether the 14 days within which to file the Notice of appeal or application for leave to appeal includes or excludes the date of the decision. This is a matter of interpretation which has since been settled. It is a matter that has been over flogged that it should no longer agitate us in this appeal or agitate any legal mind for that matter. The matter can conveniently and with ease be said to have been well rested by concordant judicial authorities to the effect that the mode of calculating or computing time prescribed by any statute except as otherwise specifically stipulated, is as provided by Section 15 of the Interpretation Act as similarly provided by the Uniform Rules of the High Courts. By Section 15 (2) (a) of the Act, a reference in an enactment to a period of days shall be construed-
(a) Where the period is reckoned from a particular event, as excluding the day on which the event occurs;
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(Emphasis supplied).
This section makes it crystal clear that the day of the occurrence of the event is excluded in the computation of time. The count begins the day next following the event and includes the last day of the period. In other words, the day of the event is excluded and the last day of the period is included in the reckoning.
This principle of the exclusion of the day of the happening of the event which has now become a principle of general acceptance as the mode of calculating the time for the taking of any action or step within the time stipulated by any statute or Rule, was enunciated in the case of Akeredolu & Ors VS Akinremi (1985) LPELR – 327 (SC). In the said case Aniagolu, JSC (of blessed memory) referred to MAXWELL ON INTERPRETATION OF STATUTES 12
