ALHAJI HASSAN MAIKADA KAMBAZA v. BELLO HAKIMI & ANOR
(2019)LCN/13247(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 14th day of May, 2019
CA/S/56/2017
RATIO
RES JUDICATA: DEFINITION
“Res judicata”, a Latin word as defined by the Black’s Law Dictionary 8th Edition is a thing adjudicated; an issue that has been definitively settled by judicial decision; an affirmative defence barring the same parties from litigating the second law suit on the said claim, or any other claim arising from the same transaction or series of transactions that could have been but was not raised in the first Suit.PER AMINA AUDI WAMBAI, J.C.A.
ESTOPPEL PER REM JUDICATA: NATURE
As a rule of evidence, estoppel per rem judicata precludes a party (or his privy) from disputing in any subsequent proceedings matters which had been adjudicated upon previously by a competent Court between him and his opponent. See TORIOLA & ORS V WILLIAMS (1982) 7 SC P 27. Talking about the meaning and the purport of this principle, Muhammad Lawal UWAIS JSC (as he then was) in the case of ADIGUN & ORS V. GOV. OF OSUN STATE & ORS (1995) LPELR-178 SC, quoting from the book res Judicata by Spencer – Bower and Turner, 2nd Edition, Chapter 1, Paragraph 9: – stated thus;
The rule of estoppel by res judicata, which, like that of estoppel by representation, is a rule of evidence, may thus be stated: where a final judicial decision has been pronounced by either an English or (with certain exceptions) a foreign, judicial tribunal of competent jurisdiction over the parties to, and the subject matter of, the litigation, any party or privy to such litigation, as against any other party or privy thereto, and, in the case of a decision in rem, any person whatsoever, as against any other person, is estopped in any subsequent litigation from disputing or questioning such decision on the merits, whether it be used as the foundation of an action, or relied upon as a bar to any claim, indictment or complaint, or to any affirmative defence, case, or allegation, if; but not less, the party interested raises the point of estoppel at the proper time and in the proper manner.
In effect a cause of action litigated and adjudged on merits by a competent Court of law cannot be re-litigated upon by the same parties, as a final judgment rendered by a Court of competent jurisdiction on merit, is conclusive as to the right of the parties and their privies and so to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. SeeABIOLA & SONS B.C. LTD VS. 7 UP B.C. & ORS (2012) 15 NWLR (PT. 1322) 184; ADEYEMI-BERO VS LAGOS STATE DEV. PRO. CORP ANOR (SUPRA); AMINU VS HASSAN (2014) ALL FWLR (PT. 725) 205, 211.PER AMINA AUDI WAMBAI, J.C.A.
ESTOPPEL: IMPLICATION OF RAISING ESTOPPEL
Generally, therefore, raising the issue of estoppel, prima facie, amounts to an allegation that the whole legal rights and obligations of the parties are concluded by the earlier judgment, which may have involved the determination of questions of law as well as findings of fact. See MACKSON IKENI & ANR V CHIEF WILLIAM AKUMA EFAMO & ORS (2001) 10 NWLR (PT 720) 1. In this sense, the doctrine prohibits a piece meal litigation between the same parties in the same or closely related subject matter which could have been brought forward as part of the subject matter in contest but was not brought forward. See IJALE VS A.G. LEVENTIS & CO. (1965) ANLR 182, 186 -187.PER AMINA AUDI WAMBAI, J.C.A.
ESTOPPEL: THE REASON OR PURPOSE OF ESTOPPEL
The rationale for this is clear. Founded on a public policy that there must be an end to all litigation as expressed by the maxiinterest republicae ut sit finis Iitium, a party should not be vexed twice on the same ground and for one and the same cause of action and on the same issues;nemo his puniri pro delicto or nemo vexari proeadem causa SeeLOCKYE VS FERRY MAN 2 A.C 5/9 as quoted and relied upon by Ogundere, JSC in IKOKU & ORS VS. R. EKEUKWU & ORS (1995) 7 NWLR (PT. 410) 637.PER AMINA AUDI WAMBAI, J.C.A.
ESTOPPEL: A SUCCESSFUL PLEA OF ESTOPPEL AFFECTS 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 has 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 previously determined by a Court of competent jurisdiction between the parties.PER AMINA AUDI WAMBAI, J.C.A.
RES JUDICATA: NECESSARY ELEMENTS TO PROVE
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 (Supra). HONDA PLACE LTD VS. GLOBE MOTOR HOLDING NIG. LTD (Supra).PER AMINA AUDI WAMBAI, J.C.A.
ESTOPPEL: EFFECT OF PLEADING A SUCCESSFUL ESTOPPEL
Once these conditions are satisfied, the previous decision estoppes the party from making any claim contrary to the previous one. He will not be allowed to plead against or controvert the previous admission or claim. See AJIBOYE V ISHOLA (2006) 6-7 SC 1. Conversely, the conjoined nature of these conditions makes them inseparable from each other such that the absence of any of the constituents or components of the whole will render the doctrine impotent. Therefore, failure to establish any of the listed conditions in the new suit renders the plea inapplicable. See MAKUN V FUT. MINNA (supra); OKE V ATOLOYE (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.
ESTOPPEL: UNDER ESTOPPEL, BOTH PARTIES AND PRIVIES ARE AFFECTED
I am not unmindful of the settled position of law that for the purpose of estoppel per rem judicata the term ‘parties’ includes but is not limited to the ‘principal persons’ named as ‘parties’ on the writ of summons; it also extends to ‘privies’ of such parties. See OMOLOYE V A.G OYO STATE & ORS (1987) 4 NWLR (PT64) 267, ABUBAKAR V. B. O. & AP LTD (2007) 18 NWLR (PT. 1066) 319 (AGUOCHA v EZENWA AGUOCHA (2005) 1 NWLR (PT.906) 165; ODIETE & ORS v. V. O. OKOTIE & ORS (1973) 1 NMLR 175.PER AMINA AUDI WAMBAI, J.C.A.
PRIVY: WHO IS A PRIVY
But who is a privy
According to Black’s Law Dictionary a “privy” in a suit or in the context of litigation means –
Someone who controls a law suit though not a party in it, someone whose interests are represented by a party in the law suit, and a successor in interest to anyone having a derivative claim.
A person also qualifies as a Privy when he is a privy in Estate which includes a guarantor and guarantee or lessor and lessee which can also extend to the term Donor and Donee of a legal interest in land. In Arabia v. Kanga (1932) 1 WACA 253 at p. 254, a privy was defined as that person whose title is derived from and who claims through a party. It may also imply identity of successive interest or persons having interest in property.PER AMINA AUDI WAMBAI, J.C.A.
PRIVY: THE 3 CATEGORIES OF PRIVIES
In law therefore Privies are of three categories namely:
a) Privies in blood; such as testator and heir;
b) Privies in law; such as testator and executor or in the case of intestate succession, a successor and administrators;
c) Privies in estate; such as vendors and purchasers, lessor and lessee etc. See NWOSU v UDEAJA (1990) 1 NWLR (PT.129) 188; AGBOGUNLERI v DEPO (2008) 3 NWLR (PT.1074) 217 at 296 -227; ABABIO v. KANGA (19832) 1 WACA 253 – 256.PER AMINA AUDI WAMBAI, J.C.A.
Justices
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
ALHAJI HASSAN MAIKADA KAMBAZAAppellant(s)
AND
1. BELLO HAKIMI
2. HASSAN HAKIMIRespondent(s)
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): The Appellants as claimants before the Kebbi State High Court (now called the lower Court) instituted an action against the Respondents as defendants, by a writ of summons, claiming declaratory and other reliefs that they are the rightful owners to the exclusion of all other persons or bodies of the farmland lying and situate at Tudu Hanyar Yole da Goje area within Kambaza Hausawa, Gwandu Local Government, Kebbi State; that the entry upon the land and confiscation of same by the Hakimi Bello and Hakimi Hassan (the Defendants/Respondents) without the prior consent and permission of the claimants constitutes an act of trespass; an order that the defendants did not acquire any title whatsoever over the farmland in dispute by virtue of being the village heads of the area, the farmland not being a “Gandu” land but founded by their forefathers; and an order to the defendants to relinquish the purported ownership of the land they arrogated to themselves just by being the village heads.
???The respondent’s reaction to the claim was by a Notice of Preliminary Objection challenging the
1
competence of the suit and the jurisdiction of the Court to entertain the action on the ground inter alia, that the subject matter of the suit had been determined by a Court of coordinate jurisdiction, the Kebbi State Sharia Court of Appeal in Suit No. SCA/KBS/GD/48/2014 and that being so, by virtue of Section 244(1) and (2) of the Constitution only this Court, the Court of Appeal, has Jurisdiction to entertain the matter.
In its ruling delivered on 20/2/2017 upholding the preliminary objection, the lower Court per E. A. Karatu J, held inter alia:
The Court has found in exhibit ???B??? which was the record of proceedings of the Upper Shari’a Court Gwandu attached, in suit No. USC/GD/CU/F1/46/2014 filed on 29th April, 2014 where it was boldly captioned as follows:
COMPLAINANTS: BELLO HAKIMI AND HASSAN HAKIMI
VS
DEFENDANTS: HAKIMI MAIMOTA AND HAKIMI MARAFA
By the records above, the Claimants in the suit above were also the. Claimants now before this Court which is the genesis of the prel
