BAYERO GAURA & ORS v. EFUNA BABABUGA
(2019)LCN/13741(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 7th day of August, 2019
CA/MK/206/2016
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
1. BAYERO GAURA
2. ROKA KASUWA ISA
3. WILLIAM MAIGANGA
4. YOHANNA SULE
5. BALA AKAITO
6. JOHN MA1RIGA
7. LUNGWI AUTA
8. JOSEPH EGGO
9. ALHAMDU ALHASSAN
10. ABAM BELLO
11. DANLADI SABO
12. AGWAI BELLO
13. MRS. DANIEL EGGO
14. MRS. ALHASSAN MALLO Appellant(s)
AND
EFUNA BABABUGA Respondent(s)
RATIO
WHETHER OR NOT PARTIES TO A JUDGEMENT ARE BOUND BY THE DECISION WHETHER IT IS WRONG OR RIGHT
The parties to the Judgment are therefore bound by the extant decision/findings of the Upper Area Court, whether it is wrong or right. That is the law as settled in a host of cases such as: Duru V FRN (2013) 6 NWLR (Pt. 1051) 441, 446-447, per Muhammad, JSC; Akere V Gov. Oyo State (2012) 7 SCM 1, 304, per Onnoghen, JSC (as he then was); CPC V INEC (2011) 18 NWLR (Pt. 1279) 493, 577, per Ngwuta, JSC; Ali V Dandogari (2013) LPELR-21919(CA) 41.
In Dauda V Hon. AG Lagos State (2011) 10 SCM 32, 76, Rhodes-Vivour, JSC held as follows:
?The above shows that the appellants were relitigating the issue of being landlords of Ilemba Awori and Ilemba Hausa, an issue settled in the Judgment of Dosumu, J. ? Exhibit 5. PER SANKEY, J.C.A.
THE DOCTRINE OF RES JUDICATA ESTOPPEL
In several decisions of this Court, the doctrine of res judicata estoppels was explained. See Ezeanya vs Okeke (1995) 4 NWLR (Pt. 288) P.142; Faleye vs Otapo (1995) 3 NWLR (Pt. 381) P.1; Balogun vs Adejobi (1995) 2 NWLR (Pt. 370) P.131.
Where a Judgment, i.e. a final judicial decision has been pronounced on the merits by a Court with theprerequisite jurisdiction over the parties and the subject matter, any party in such suit as against any other party is estopped in a subsequent from disputing such decision on the merits. Once it is a final decision on the same question and between the same parties, it is binding until set aside on appeal. Res judicata gives effect to the policy of the Law that parties to a judicial decision should not afterwards be allowed to re-litigate the same question even if the decision is wrong. This is premised on the fact that a Court has jurisdiction to decide wrongly as well as correctly; and if it makes a mistake, its decision is binding unless corrected on appeal. Reasons for the doctrine of estoppel per res judicata is the interest of the public in the termination of disputes, the conclusiveness of judicial decisions and the fact that the individual ought to be protected from vexatious and multiplicity of suits.? (Emphasis supplied)
In order for the principle to apply, all the preconditions to a valid plea of estoppel inter partes or per rem judicatam must apply, to wit:
1. The same question must be up for decision in both proceedings (which means that the question for decision in the current suit must have been decided in the earlier proceeding);
2. The decision relied upon to support the plea of issue estoppel must be final;
3. The parties must be the same (which means that the parties involved in both proceedings must be the same per se or by their privies)
Where the plea of res judicata is established, it ousts the jurisdiction of the Court before which a fresh action is submitted from adjudicating or entertaining the question already decided. Thus, a successful plea of res judicata constitutes a bar to any fresh action between the parties. See Fadiora V Gbadebo (1978) 3 SC 219, 228-229, per Idigbe, JSC; Ajiboye V Ishola (2006) 11 MJSC 192; Isonguyo V Archibong (2016) LPELR-41206(CA) 13, per Otisi, JCA.
Finally, the principle was again well explained by the Supreme Court inIyajji V Eyigebe (1987) LPELR-1571(SC) 21, C-G, per Oputa JSC thus:
?The rule is a limitation of estoppel per rem judicatam to parties and their privies and it is an affirmation of the maxim res inter alis acta alteri nocere non potest. Simply put the rule means that a final judgment already decided between the parties or their privies on the same question by a legally constituted Court having jurisdiction is conclusive between the parties and the issue cannot be raised again. Once the judgment is final it is conclusive proof in subsequent proceedings (other than an appeal or a retrial) between the parties or their privies of the matter actually decided.? (Emphasis supplied). PER SANKEY, J.C.A.
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the High Court of Justice of Nasarawa State sitting in Mararaban Gurku, in suit No. NSD/K53/2009 delivered on 16th December, 2015, by Aboki, J. Therein, Judgment was entered in favour of the Respondent herein as Plaintiff before that Court. Aggrieved by the decision, the Appellants filed an Appeal on 15th December, 2016 vide their Notice of Appeal, which was subsequently amended with the leave of this Court on 26-01-17.
The brief facts leading up to this Appeal are as follows: The Plaintiff (now Respondent) took out a Writ of Summons against the Defendants (now Appellants) on 6th July, 2009 claiming the following reliefs:
a) ?A declaration that the plaintiff is the owner of all that parcel of land situated at Chandap particularly called Efa-jeh in Panda Development Area of Kara L.G.A having inherited same from his forebears and therefore entitled to the Customary Right of Occupancy thereof.
b) A declaration that the plaintiffs forebears having won previous litigation and customary arbitration against the defendants
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forebears are estopped from laying claim to the land.
c) A perpetual injunction restraining the defendant’s their privies, or assigns from further trespassing and or dealing with the land whatsoever.
d) The sum of N1 Million damages for trespass jointly and or severally against the defendants.
e) The cost of this action.?
Upon being served with the claim, the Defendants filed and served their Joint Statement of defence on 12th March, 2010 which also contained a Counter-claim. The Plaintiff in turn filed a Reply to the Defendant?s Statement of defence on 1st July, 2010 as well as a defence to the Counter-claim, and a further Witness Statement on oath by the Plaintiff. Pleadings were closed and the matter went to trial.
To prove his case, the Plaintiff called a total of seven witnesses, with the Plaintiff himself testifying as PW7; and tendered four documents marked Exhibits A, B, C and D respectively, being a Site Plan, the Hausa version of Record of proceedings of the Upper Area Court dated 23rd December, 1981 and its English translated version, as well as the Customary Judgment of the Odyon Nyankpa dated 12th February,
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1996 titled ?Land Dispute between Alem Dakare Chamdap & Ego Naka Kukuri?. The Defendants, in their defence, called a total of three witnesses and tendered three documents marked Exhibits E, F and G.
Thereafter, the Court moved to the locus in quo to inspect the land in dispute. There, the learned trial Judge was shown the boundaries of the disputed land by the parties and their witnesses. Back in Court, parties re-adopted their respective written addresses on 2nd December, 2015 and Judgment was delivered on 16th December, 2015 in favour of the Plaintiff, (now Respondent). Dissatisfied with the Judgment, the Defendant filed a Notice of Appeal dated 15-01-16, which was subsequently amended by an Amended Notice of Appeal filed on 27-01-17, wherein he complained on eight grounds.
?
At the hearing of the Appeal on 21-05-19, the Appellants, even though duly notified of the hearing of the Appeal through their Counsel, I. E. Kuza, Esq. on 06-05-19, were neither in Court nor were they represented by their Counsel. Thus, pursuant to Order 19 Rule 4 of the Court of Appeal Rules, 2016, the Amended Appellants? Brief of argument filed on
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20-02-18, but deemed filed on 17-04-18, was deemed duly argued. Thereafter, G. B. Mango Esq. adopted the Respondent?s Brief of argument filed on 22-10-18, but deemed filed on 23-10-18, in urging the Court to dismiss the Appeal and uphold the Judgment of the lower Court.
The Appellants, in their Brief of argument, distilled two issues for determination from Grounds one, two and six of the Grounds of Appeal, thereby abandoning Grounds three, four, five, seven and eight of the Amended Grounds of Appeal. The abandoned Grounds are therefore struck out. The Respondent, on his part, adopted the issues framed by the Appellants They are therefore also adopted in the determination of the Appeal. The issues are as follows:
1. Whether the learned trial Judge was right to have entered Judgment in favour of the Plaintiff/Respondent when the pleading and evidence before the Court shows unresolved contradictions? (Grounds one and two)
2. Whether the learned trial Judge erred in law when he held that Exhibit B and Exhibit C (which are valid and subsisting Judgments of a competent Court that have not been appealed against or set aside and in respect of the
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same subject matter and between the same parties hereto) do not constitute res-judicata? (Ground six)
However, since issue two for determination raises the issue of estoppel per rem judicatam, which touches on the jurisdiction of the trial Court to have entertained the suit in the first place, it will be addressed before issue one.
ARGUMENTS
Issue two – Whether the learned trial Judge erred in law when he held that Exhibit B and Exhibit C (which are valid and subsisting Judgments of a competent Court that have not been appealed or set aside and in respect of the same subject matter and between the same parties hereto), does not constitute res-judicata?
Learned Counsel for the Appellants submits that a case is said to be res judicata where it underwent full trial before a competent Court and Judgment is entered on the merit at an earlier stage. At the time the plea is raised, the earlier decision must be shown to be valid and subsisting and the parties, whether directly or by necessary implication, are the same. He contends that in practice, res judicata is not strictly confined to the issues which the Court is actually asked to decide. It
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goes further to cover issues or facts which are clearly part of the subject matter of the litigation and so which could have been raised; and that it would be an abuse of process of Court to allow a new proceeding to be started in respect of them. Ijale V Leventis (1961) 2 SCNLR 386 at 386, 741, G-H is relied on.
Counsel submits that the Plaintiff (Respondent) pleaded in paragraph 12 of his Statement of claim that his father litigated over the res in this case up to the Upper Area Court, Keffi and won. He pleaded the proceedings in Appeal number CV/FF/51/1981 between Kundi V. Dakarewhich he tendered in evidence as Exhibits B and C. The Appellants (Defendants) also relied on the same decisions copies of which they also tendered as Exhibit G. They also contended that the initial decision which was taken by the Emir of Keffi, exercising judicial powers. He had ruled that the Appellants should continue using the land, while Babuga Dakare, the father of the Respondent, should be allowed to harvest the fruits of the Palm trees and the Locust Bean trees (paragraphs 45, 46, 47, 48 and 49 and 58 of the Statement of defence).
?
Counsel submits that the Exhibits
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show that Upper Area Court, Keffi sitting in her appellate capacity, rendered a decision on 5th February, 1982 and gave the aggrieved parties the right to appeal. Counsel submits that the finding of learned trial Judge at pages 391-392 of the printed Record is not a requirement of the law. The plethora of authorities dealing with estoppel per res judicata, do not prescribe the fulcrum of the decision as a basis for the estoppel – Alapo V. Kere (2010) 42 NSCQR (Pt. 1) 1, 18; & Ibuluya V Dikibo (1976) 6 SC 77 at 104. Relying on the latter decision, Counsel submits that the Supreme Court held that it is not essential or even relevant to prove that the decision relied upon to found an estoppel is itself correct or well-founded in law or fact. If it is pronounced as a final judicial decision by a tribunal having jurisdiction as to the same question or between the same parties, it will be conclusively deemed correct, unless and until upset on appeal. However, based on its findings at pages 392-394 of the printed Record, the trial Court discountenanced the previous proceedings of the Upper Area Court, Exhibit B, C and G.
?
Counsel submits that none of the
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authorities in respect of res judicata prescribes the correctness or conclusiveness of a decision as a factor upon which the plea can be founded on. Rather, all that a party raising the plea of res judicata needs to plead and prove is that:
1. The parties in the previous suit and the present are directly or, by implication of being privies, are the same;
2. The subject matter in the previous and the later suit is the same;
3. The Court or tribunal that decided the matter at the earlier instance is competent;
4. The decision of the earlier Court is still valid and subsisting.
Reliance is placed on Ogbolosingha V Bayelsa State Electoral Commissioner (2015) 2 SCNJ 139, 162; Makun V FUT Minna (2011) 18 NWLR (Pt. 1278); Abiola & Sons Co. Ltd V 7 Up Bottling Co. Ltd (2012) 15 NWLR 184; & Agbogunleri V Depo (2008) 2 MJSC 87-88.
Counsel therefore submits that the matter before the lower Court was not an appeal, neither was it an application for judicial review of the decision of the Grade 11 Area Court, Gitata or the Upper Area Court, Keffi.
?
In response, learned Counsel for the Respondent submits that the Appellants?
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Counsel misconceived the findings of the trial Court on this issue. He contends that simply put, the trial Judge found as a fact that the judicial decision in Exhibits B and C were not final as the Judge in the Judgment was not certain and definite as to the owner of the land in dispute.
He contends that any trial Court being presented with a document as the Judgment in Exhibits B and C, has the primary duty to evaluate same by examining its content and other relevant facts to ascertain whether the decision in the previous proceedings was final, and had determined the rights and/or real issues between the parties thereto. He relies on Ekong V Udo (2002) 30 WRN 123, 124.
Counsel submits that Exhibits B and C revealed that at the Grade II Area Court Panda, the father to the Plaintiff (Respondent herein) won the case. The appellate Upper Area Court, in its Judgment at pages 5-6, considered the intervention of the then Emir of Keffi, Alhaji Ahmadu Maikoto, and ruled that the Yeskwa people i.e. Babuga Dakare, the Plaintiff?s father, should continue to harvest the Palm trees and the Locust Bean trees; while the Koro people i.e. Auta Kundi, the
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Defendants? forebears, should continue to farm the land. The Plaintiff/Respondent averred to this in his Reply to the Defendants/Appellants? Joint Statement of defence, as well as in paragraph 2(b) of his Further Witness Statement on oath (at pages 184 and 187 of the Record). He contends that this shows that the Judgment of Upper Area Court, Keffi in suit No. CVFF/51/1981 Auta Kundi V Babuga Dakari, was an affirmation of the arbitration of the then Emir of Keffi, Ahmadu Maikoto, in line with Yeskwa custom. However, Counsel submits that the decision did not finally determine or declare the issue of ownership of the land under reference because the parties had been at loggerheads with each other since. He therefore submits that in the circumstances of this case, the trial Judge was right when he found as he did at page 392 of the Record.
Counsel relies onAyuya V Yonrin (2011) All FWLR (Pt 583) 1842 for the conditions to be fulfilled before a plea of res judicata will be upheld. He therefore submits that the decision of the Upper Area Court Keffi affirming the arbitration decision of the then Emir of Keffi never finally decided the issues
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because there is no way in which two persons can own a piece of land concurrently, one tilling the land and the other harvesting the economic trees. Certainly it will be an invitation to constant friction. Counsel therefore contends that the lower Court was right to have held that there was no estoppel in the circumstances. Reliance is placed on Azazi v Adhekegba (2010) 3 WRN 145, 164 per Bada, JCA on when a decision can be considered as final. He therefore submits that the learned trial Judge properly evaluated Exhibits B and C and came to the right conclusion that the Judgment therein was not a final decision. Hence, same cannot constitute res judicata to the claim of the Respondent. Counsel therefore urged the Court to dismiss the Appeal and uphold the Judgment of the lower Court, with substantive cost against the Appellants.
Findings –
The principle of res judicata is one aimed at avoiding duplicity or multiplicity of litigation. The essence of the principle is that an earlier Judgment previously handed down will constitute a bar to a present action if certain conditions are satisfied. This principle of law is captured in Sections 173 and 174 of the Evidence Act, 2011 (as amended). They stipulate as ?
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follows:
?Section 173. Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the Court, and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.
174. (1) If a judgment was not pleaded by way of estoppel it is as between parties and privies deemed to be a relevant fact, whenever any matter, which was or might have been decided in the action in which it was given, is in issue, or is deemed to be relevant to the issue in any subsequent proceeding.
(2) Such judgment is conclusive proof of the facts which it decides, or might have decided, if the party who gives evidence of it had no opportunity of pleading it as an estoppel.?
Thus, the plea of res judicata is employed to stop a party from re-litigating over a matter or an issue that has enjoyed conclusive or effective adjudication and determination by a competent Court of law.
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Hence, the duty of a Court before whom a plea of res judicata is raised is to carefully investigate the matter in order to decide whether the plea applies to the current circumstance. The rationale of the plea of res judicata is founded on the principle that a party is precluded from contesting the contrary of any precise point which has once been distinctly put in issue and with certainty determined. See:Tony-Anthony Holdings Ltd V Commercial Bank for Africa (2013) LPELR-20286(CA) 31-33, per Augie, JCA (as he then was); Alaya V Issac (2012) LPELR-9301(CA) 41, per Ogbuinya, JCA; Ladega V Durosimi (1978) 3 SC 91, 1011.
The effect of the plea of res judicata, when it is successful, is to obviate the need for a Court to receive evidence concerning the merit of a subsequent suit – Nwazota V Nwokeke (2010) LPELR-5101(CA) 13. A Judgment of a Court subsists in perpetuity unless it is set aside by a Court of competent jurisdiction. The Supreme Court articulated this position in Purification Technique Nig. Ltd V Rufai Jubril (2012) 10 SCM 107, 127-128, per Ngwuta, JSC as follows:
?(3) It has to be emphasized, my noble lords, that a Judgment of a Court
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subsists in perpetuity, notwithstanding any error in law or facts therein, until and unless it is set aside or vacated by a Court of competent jurisdiction. It is commonsense? (Emphasis supplied)
Both parties are agreed that at a point in time, the Upper Area Court, Keffi adjudicated in their dispute over the ownership of the land in question in an appeal to it from the Area Court, Panda, in 1981. The Record of proceedings of the Upper Area Court was tendered in evidence by the Respondent (Plaintiff) as Exhibits B and C (Hausa and English versions); and by the Appellants (as Defendants) Exhibits G and E (Hausa and English versions). For clarity of argument, the complaint of the Appellants? predecessor in title in the Appeal before the Upper Area Court, Keffii was set out as follows (at the first and second pages of the proceedings):
?This is an appeal from Civil Grade II Area Court, Panda, where Babuga Dakare sued Auta Kundi in respect of a farm land, palm trees and locust beans that are inside the said farm land because the matter was settled by Sarkin Keffi, Ahmadu Maikoto but he sent our case to the Court at Gitata.This is a
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copy of our judgment, but this year, he entered and started harvesting the palm trees that are inside the farm land without my permission. Then I reported the matter to the bigger Chief by name Mr. Ejim Efuna Odyeng Nyankpa Yeskwa and the Chief sent his messenger to serve him with the invitation letter but he refused to collect the said invitation letter from the Chief?s Palace and also refused to appear in the Chief?s Palace. That is why the Chief asked me to go to Court and sue him so that the Court will look into the matter.
I want him to leave my palm trees and the locust beans trees that are inside the said farm land and the Court should recover them for me. This is the copy of the judgment of Gitata of 1973 (1st February, 1973.)
After the Civil Grade II Area Court Panda has finished hearing the matter, it confirmed the said forest, the palm trees and the locust beans trees that are inside the farm land to the plaintiff? This Court declared the Plaintiff, Babuga Dakare to be the owner of the forest, Palm trees and locust beans trees that are inside the said land. Mr. Auta Kundi been dissatisfied with the judgment of the Court
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he appealed to the Upper Area Court, Keffi with 4 gounds of appeal.?
After hearing and taking arguments in the Appeal, the Upper Area Court, Keffi delivered its Judgment on 05-02-82 in the following terms:
?After listening to the submission of the appellant Mr. Auta Kundi and the respondent Babuga Dakare and we also read the copy of the judgment CV/175/73 of 25/2/74 which Webe sued Auta Madaki, Sabo Jakada and Adamu Gayai which at the end, the Emir of Keffi Ahmadu Maikoto settled the dispute between Koro and Yeskwa people that Koro people should harvest the Palm trees and the locust beans trees which both parties agreed. With the said settlement which the Emir of keffi Ahmadu Maikoto did. We also read the copy of the Judgment of W45/81 between Babuga Dakare Vs Auta Kundi of 5/5/81 because of that it is the view of the Upper Area Court that since from the beginning, the Emir of Keffi Ahmadu Maikoto have settled the Parties that is Koro and Yeskwa before the Court at Gitata that Koro people should continue farming while Yeskwa people should continue harvesting the Palm trees and the locust beans trees and both of you agrees with that,
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because of that, Upper Area Court used Section 59 of the Area Court Edict 1968 and upheld the decision of the Lower Court.
Right of appeal, whosoever is dissatisfied with this decision has the right of appeal to the High Court Jos within 30 days.? (Emphasis supplied)
?From the above proceedings and Judgment of the Upper Area Court, it is evident that the farm land dispute between the predecessors of the Respondent and the Appellants had been adjudicated upon at the Area Court, Panda, from where an Appeal was filed against the decision at the Upper Area Court, Keffi. In between, there was a customary arbitration before the Emir of Keffi. Both the decision of the Area Court Panda and the customary arbitration of the Emir of Keffi were upheld by the Upper Area Court by virtue of Section 59 of the Area Court Edict, 1968, the law applicable at the time of the decision. Thereafter, parties were informed of their right of appeal against the decision within 30 days from the date of delivery. There is no evidence presented to the lower Court that any of the parties to that Judgment or their privies filed any such Appeal against this decision. It
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therefore remains extant, subsisting and valid until it is overturned on appeal. The parties to the Judgment are therefore bound by the extant decision/findings of the Upper Area Court, whether it is wrong or right. That is the law as settled in a host of cases such as: Duru V FRN (2013) 6 NWLR (Pt. 1051) 441, 446-447, per Muhammad, JSC; Akere V Gov. Oyo State (2012) 7 SCM 1, 304, per Onnoghen, JSC (as he then was); CPC V INEC (2011) 18 NWLR (Pt. 1279) 493, 577, per Ngwuta, JSC; Ali V Dandogari (2013) LPELR-21919(CA) 41.
In Dauda V Hon. AG Lagos State (2011) 10 SCM 32, 76, Rhodes-Vivour, JSC held as follows:
?The above shows that the appellants were relitigating the issue of being landlords of Ilemba Awori and Ilemba Hausa, an issue settled in the Judgment of Dosumu, J. ? Exhibit 5.
In several decisions of this Court, the doctrine of res judicata estoppels was explained. See Ezeanya vs Okeke (1995) 4 NWLR (Pt. 288) P.142; Faleye vs Otapo (1995) 3 NWLR (Pt. 381) P.1; Balogun vs Adejobi (1995) 2 NWLR (Pt. 370) P.131.
Where a Judgment, i.e. a final judicial decision has been pronounced on the merits by a Court with the
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prerequisite jurisdiction over the parties and the subject matter, any party in such suit as against any other party is estopped in a subsequent from disputing such decision on the merits. Once it is a final decision on the same question and between the same parties, it is binding until set aside on appeal. Res judicata gives effect to the policy of the Law that parties to a judicial decision should not afterwards be allowed to re-litigate the same question even if the decision is wrong. This is premised on the fact that a Court has jurisdiction to decide wrongly as well as correctly; and if it makes a mistake, its decision is binding unless corrected on appeal. Reasons for the doctrine of estoppel per res judicata is the interest of the public in the termination of disputes, the conclusiveness of judicial decisions and the fact that the individual ought to be protected from vexatious and multiplicity of suits.? (Emphasis supplied)
In order for the principle to apply, all the preconditions to a valid plea of estoppel inter partes or per rem judicatam must apply, to wit:
1. The same question must be up for decision in both proceedings (which
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means that the question for decision in the current suit must have been decided in the earlier proceeding);
2. The decision relied upon to support the plea of issue estoppel must be final;
3. The parties must be the same (which means that the parties involved in both proceedings must be the same per se or by their privies)
Where the plea of res judicata is established, it ousts the jurisdiction of the Court before which a fresh action is submitted from adjudicating or entertaining the question already decided. Thus, a successful plea of res judicata constitutes a bar to any fresh action between the parties. See Fadiora V Gbadebo (1978) 3 SC 219, 228-229, per Idigbe, JSC; Ajiboye V Ishola (2006) 11 MJSC 192; Isonguyo V Archibong (2016) LPELR-41206(CA) 13, per Otisi, JCA.
Finally, the principle was again well explained by the Supreme Court inIyajji V Eyigebe (1987) LPELR-1571(SC) 21, C-G, per Oputa JSC thus:
?The rule is a limitation of estoppel per rem judicatam to parties and their privies and it is an affirmation of the maxim res inter alis acta alteri nocere non potest. Simply put the rule means that a final judgment already
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decided between the parties or their privies on the same question by a legally constituted Court having jurisdiction is conclusive between the parties and the issue cannot be raised again. Once the judgment is final it is conclusive proof in subsequent proceedings (other than an appeal or a retrial) between the parties or their privies of the matter actually decided.? (Emphasis supplied)
The claim of the Respondent as Plaintiff before the lower Court has already been set out earlier. However, for ease of reference, he claimed inter alia as follows:
a) ?A declaration that the plaintiff is the owner of all that parcel of land situated at Chandap particularly called Efa-jeh in Panda Development Area of Karu L.G.A. having inherited same from his forebears and therefore entitled to the Customary Right of Occupancy thereof.
b) A declaration that the plaintiffs forebears having won previous litigation and customary arbitration against the defendants forebears are estopped from laying claim to the land.?
?The case on appeal before the Upper Area Court Keffi, from the decision of the Area Court, Panda has also been set out above,
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and it was as follows:
?This is an appeal from Civil Grade II Area Court, Panda, where Babuga Dakare sued Auta Kundi in respect of a farm land, palm trees and locust beans that are inside the said farm land because the matter was settled by Sarkin Keffi, Ahmadu Maikoto but he sent our case to the Court at Gitata?
After the Civil Grade II Area Court Panda has finished hearing the matter, it confirmed the said forest, the palm trees and the locust beans trees that are inside the farm land to the plaintiff? This Court declared the Plaintiff, Babuga Dakare to be the owner of the forest, Palm trees and locust beans trees that are inside the said land. Mr. Auta Kundi been dissatisfied with the judgment of the Court he appealed to the Upper Area Court, Keffi with 4 grounds of appeal.?
From my vantage point, it is evident that the subject matter of the dispute between the parties and their privies in the suit before the Area Court Panda, the subsequent Appeal to the Upper Area Court, Keffi and the fresh suit filed before the High Court of Justice, Nasarawa State sitting at Maraban Gurku, otherwise referred to as the lower Court,
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are over the same dispute over farmland and the economic trees on the land. This is agreed to by both parties in their pleadings and evidence before the lower Court. Indeed, the learned trial Judge admitted as much in his Judgment when he considered the issue of ?whether the suit is not caught up by the doctrine of res judicata?. At pages 391-392 of the printed Record, the learned trial Judge held explicitly as follows:
?While it is clear from the facts of both previous suit and the present suit, that the parties by necessary implication of privies are one and the same and the subject matter without doubt is the same. The same cannot be said of the fulcrum of the decision of the matter. The decision upon which to support the plea of estoppels per res judicata even though decided by a Court of competent jurisdiction, did not in any way decide the final rights of the parties. This is potently clear as that judgment stands, both parties cannot claim absolute ownership of the land. It is clear that this decision is absurd and unknown to law. This is clear because, it is impossible for two (2) disputing parties to own the same land with
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conflicting interest. One party tilling the land, and the other harvesting the fruits of the same land.?
At pages 392-393 of the Record, his lordship continued as follows:
?It is therefore my opinion that even though the present case enjoys most of the conditions supporting the plea of estoppels per res judicata, one condition is lacking to cement or concretise the condition of the plea so put forward. It is clear that the judgment which is inconclusive cannot bind any other Court including this Court? To my mind, the decision of the Area Court Gitata and the Upper Area Court Keffi sitting at original and appellate jurisdictions respectively are vague and repugnant to natural justice equity and good conscience; hence cannot be said to be conclusive as to serve as a bar to subsequent litigation. I so hold.?
It is based on these findings that the learned trial Judge proceeded to consider the evidence presented before him in the pleadings and evidence of the parties in respect of the ownership of the land, where after he awarded title to the Respondent/Plaintiff.
?However, based on the decisions of the Supreme Court on
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this issue, I beg to differ with these findings of the learned trial Judge. The decisions in Dauda V Hon. AG Lagos State (2011) 10 SCM 32, 76, Rhodes-Vivour, JSC and Iyajji V Eyigebe (1987) LPELR-1571(SC) 21, C-G, per Oputa, JSC are unyielding on the point that a final decision of a Court of competent jurisdiction between the same parties over the same subject matter subsists and is valid until set aside on appeal or by a retrial. The Supreme Court expressly clarified that this remains the decision of the Court as ?a Court has jurisdiction to decide wrongly as well as correctly; and if it makes a mistake, its decision is binding unless corrected on appeal?. The learned trial Judge therefore was in patent error when he presumed to sit on appeal over a decision that had not been appealed against by any of the parties, and in particular, the Respondent, and was therefore still valid and subsisting. I note his indignation and ire at the pronouncements of the Upper Area Court, Keffi in making an award of the farmland and the economic trees to both parties. However, the parties were not left in the dark about their right to appeal against the so-called
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?absurd? decision if they were dissatisfied. For the Respondent (Plaintiff at the lower Court) to file a fresh suit before the lower Court to re-litigate the same issues which he had presented before the Area Court Panda which found in his favour, and which the Appellants (Defendants at the lower Court) appealed to the Upper Area Court, Keffi, certainly goes against the principle of law that forbids multiplicity of actions. It is an abuse of the process of Court; just as the previous decisions of the Area Court, Panda and the subsequent Appeal to the Upper Area Court, Keffi operate as res judicata against the suit before the lower Court, I do so find. I therefore resolve issue two in favour of the Appellants.
Having found as above, that the suit before the lower Court is caught by the doctrine of estoppel per rem judicatam, there is no further need to consider issue one formulated for determination, which is: “Whether the learned trial Judge was right to have entered Judgment in favour of the Plaintiff/Respondent when the pleading and evidence before the Court shows unresolved contradictions?”: It has been rendered redundant
?
Consequently,
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based on my resolution of issue ONO for determination in favour of the Appellants, I find merit in the Appeal It succeeds and is allowed.
Accordingly, I set aside the Judgment and Orders Of the High Court Of Justice; Nasarawa State sitting at Mararaban Gurku, delivered on 16-12-15 by Aboki, J.
I award costs of the Appeal assessed at N 100. 000.00 to the Appellants against the Respondent.
ONYEKACHI AJA OTISI, J.C.A.: I had the opportunity to read, in draft form, a copy the lead Judgment delivered by my learned Brother, Jummai Hannatu Sankey, JCA; made available to me in advance a draft copy of the Judgment just delivered in which this appeal was allowed, I agree with, and adopt mine, resolution of the issues raised therein as ably sot out by my learned Brother.
This is also allowed by me. I abide by the orders made in the lead Judgment, including the order to costs in favour of the Appellant and against the Respondent.
JOSEPH EYO EKANEM, J.C.A.: I had the opportunity of reading in advance the lead judgment of my learned brother, Sankey, JCA I agree with the reasoning and conclusion therein which I
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adopt as mine in allowing the appeal
I abide by the consequential orders made in the lead judgment.
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Appearances:
For Appellant(s)
G.B. Mango, Esq.For Respondent(s)
Appearances
For Appellant
AND
G.B. Mango, Esq.For Respondent
