ATULUKU v. OBAKA (2020)

ATULUKU v. OBAKA

(2020)LCN/14891(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, December 31, 2020

CA/A/295/2017

RATIO

EVIDENCE: MEANING AND NATURE OF RES JUDICATA

Res judicata simply means that once a dispute or matter has been finally and judicially pronounced upon or determined by a Court of competent jurisdiction, neither the parties thereto nor their privies can subsequently be allowed to re-litigate the matter because a judicial determination properly handed down is conclusive until reversed by an Appellate Court. The veracity of that decision or determination is also not open to a challenge nor can it be contradicted. The doctrine is grounded in public policy which stipulates that there must be an end to litigation as captured in the Latin maxim “interest reipublicac at sit finis litium”. The plea of res judicata is however available to a defendant as a shield and not to be employed by a plaintiff as a sword as the legal effect of its sustenance by the Court amounts to a decision to the effect that the Court before which it has been raised has no jurisdiction to entertain the matter. The plaintiff in a case can only rely on estoppel simpliciter and not on res judicata. Res judicata therefore, is a defence available to the defendant in a case to impugn the jurisdiction of the Court over the matter brought by a plaintiff.

Our law is settled on this that for a party to succeed, the party must plead and with evidence established the following: (1) that the parties or their privies involved in both the previous and present proceedings are the same. (2) that the claim or issue in dispute in both proceedings are the same; (3) that the res judicata or the subject matter of the litigation in the two cases is the same; (4) that the decision relied upon to support the plea is valid, subsisting and final; and (5) that the Court that gave the previous decision relied upon to sustain the plea is a Court of competent jurisdiction.
Unless all the above preconditions are established, the plea of estoppel per rem judicata cannot be sustained. PER ADAH, J.C.A.

EVIDENCE: ON WHOM LIES THE BURDEN TO ESTABLISH THE PRECONDITIOMS OF ESTOPPEL PER REM JUDICATAM

However, the burden lies squarely on the party who sets up the defence of estoppel per rem judicatam to conclusively establish the said preconditions. Oke v. Atoloye (No. 2) (1986) 1 NWLR (Pt. 15) 241, Yoye v. Olubode (1974) 1 All NLR (Pt. 2) 118, Fadiora v. Gbadebo (1978) 3 SC 219, Ezewani v. Onwodi (1986) 4 NWLR (Pt. 33) 27 referred to. PER ADAH, J.C.A.

ESTOPPEL: EFFECT OF A SUCCESSFUL PLEA OF RES JUDICATA

A successful plea of res judicata will oust the jurisdiction of the Court before which it is raised. See the case of Yanaty Petrochemical Ltd v. EFCC (2018) 5 NWLR (Pt. 1611) 97. PER ADAH, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

HASSAN ATULUKU APPELANT(S)

And

MUSA OBAKA RESPONDENT(S)

STEPHEN JONAH ADAH, J.C.A. (Delivering The Leading Judgment): This appeal is against the decision of the Kogi State High Court of Justice (exercising its appellate jurisdiction), sitting at Anyigba, Kogi State, delivered on the 24th day of November, 2016, by R.O. Olorunfemi J. , Presiding with: E.O. Haruna J. , and A.B. Akogu J.

The appellant herein as the Plaintiff at the trial Court i.e (the Area Court of Kogi State) sought for a declaration to a parcel of land known and called Oko-Okee-dubi which is situate at the back of Kogi State University and an order to stop the Defendant (the respondent herein) from carrying out any sales of the said land.

Parties joined issues and at the end of the trial, the trial Court entered judgment in favour of the respondent and declared the said disputed parcel of land in his favour.

Dissatisfied with the said judgment the appellant vide his counsel appealed to the High Court of Justice of Kogi State sitting at its appellate level which also dismissed the appeal of the appellant and affirmed the judgment of the trial Court.

Still dissatisfied with the said judgment, the appellant with the leave of Court to appeal, now appeal to this Court vide a Five Ground Notice of Appeal, filed on the 18th day of October, 2017. The Record of Appeal was transmitted to this Court on 12th day of September, 2017. In line with the rules of this Court, parties filed and exchanged their respective briefs of argument.

The appellant in his brief distilled two issues for determination of this appeal. The issues are:
1. Whether exhibit DI operates as res judicata in the face of the evidence on the calm record of the trial Court. (Distilled from grounds 1, 2 and 4 of the Grounds of Appeal).
2. Whether the fact that the name and location of the land in exhibit D1 and the one in dispute are the same makes them one and the same land litigated upon in exhibit D1. (Distilled from Grounds 3 and 5 of the Grounds of Appeal).

In response, counsel for the respondent, submitted a sole issue for the determination of this appeal, thus:
Whether EXHIBIT “D1” constitutes estoppel by res-judicata as aptly demonstrated by the trial and the lower Court respectively.

Appellant’s Reply Brief was filed on the 15th day of May, 2018 but deemed properly filed and served on the 6th day of October, 2020.

The issues submitted by the appellant more represents his grievances, I shall therefore, adopt the said issues in deciding this appeal. I shall take the two issue together in this appeal.

Issues One and Two:
These issues are – whether exhibit D1 operates as res judicata in the face of the evidence on the calm record of the trial Court; and
Whether the fact that the name and location of the land in Exhibit D1 and the one in dispute are the same, makes them one and the same land litigated upon in Exhibit D1.

Counsel for the appellant while arguing the two issues together reproduced the appellant’s evidence at the trial Court at page 4 of the appellant’s brief of argument and contended that the said evidence was not in any way tested, rebutted, controverted or cross examined by the respondent or his counsel. He submitted that the said evidence has come to stay and that the lower Court had no option than to act on same. He relied on Akpagher v. Gbungu (2015) 1 NWLR (Pt. 1440) pg. 209 at 233. That where any evidence given by parties to any proceeding is not

cross-examined upon or challenged by the opposite party who had the opportunity to do so, that it is always open to the Court to act on such unchallenged evidence before it as established. He cited Guinness (Nig.) Plc v. S.K.A. (Nig.) Ltd (2012) 18 NWLR (Pt. 1331) 179 – 200 paras. F -A. That premised on the evidence of the respondent at page 47 lines 11 to 16 of the record, that it is clear that Atuluku was a land owner at Oko Okedubi along Ojikpadala Ajachagba road behind Kogi State University, Anyigba during his life time and that the sole witness of the respondent complements this position. He posited further that the cumulative effect of the evidence of the respondent and DW1 as regard demarcation is to the effect that up to the time the appellant approached the trial Court over the trespass acts of the respondent; Atuluku’s land at Okedubi subsists and was not extinguished. Counsel submitted that the parcel of land to which the appellant claimed relates, is their share of Atuluku’s land that was partitioned on the basis of the number of his wives. As per the identity and location of the land, counsel submitted that the location and the names of the two lands

shown to the trial Court, identity and/or identification of the land given by the parties and which the trial Court saw and clearly confirmed are radically parallel. That the judgment of the trial Court which the lower Court affirmed was anchored solely on exhibit D1 which did not describe any land. That the subject matter decided in exhibit D1 is not the same subject matter in the appellant’s action before the trial Court. Counsel maintained that the trial Court was in error when it applauded the respondent’s counsel submission to the effect that there is conflict as to the fact of sharing of Atuluku’s land. That there was no need to applaud the respondent’s counsel for no reason. Counsel reproduced the appellant’s and PW3’s evidence and submitted that there is no iota of conflict as opined by the respondent’s counsel and applauded by the lower Court. That the evidence of the PW 1, Pw2 and PW3 do clearly demonstrate the truth of the fact that after the sharing of Atuluku’s land, that each unit had exclusive possession and use of the shared land and that where a family land is partitioned or shared among the children according to the units of wives, that the

land held by each unit on account of the partition becomes independent of each other. He urged the Court to hold that the appellant’s land is independent of the land in exhibit D1 and that the lower Court cannot as an arbiter, afford the respondent an unfettered power over the entire vast land called Oko-Okedubi situate along Ojikpadala Ajachagba behind Kogi State University, Anyigba.

On the issue of res judicata, counsel argued that the principle of res judicata is not invoked whimsically or for the fancy of it. That the conditions precedent must co-exist conjunctively and must be unequivocal and that the party pleading res judicata must lead evidence to satisfy the requisite conditions. He relied on the case of Okposin v. Assam (2005) 14 NWLR (Pt. 945) pg. 495 at 508. He posited further that the lower Court got it wrong and it occasioned miscarriage of justice when they held the view that the land of Atuluku was not segmented. That the lower Court failed to properly evaluate the unchallenged evidence on the calm record of the trial Court relating the sharing of Atuluku’s land.

Counsel finally, urged the Court to intervene, resolve these issues in favour of the appellant, allow the appeal and enter judgment for the appellant on the strength of his cogent, credible, probable and unchallenged evidence and that of his witnesses at the trial Court.

Counsel for the respondent while arguing his own sole issue canvassed that it is settled that once a matter has been finally and judicially pronounced upon or determined by a Court of competent jurisdiction, that neither the parties thereto nor their privies can subsequently be allowed to relegate such matter in Court. That a judicial decision properly handed down is conclusive and binding unless and until reversed by a superior Court and that its veracity is not open to a challenge or fresh contest nor same be contradicted. He cited Yusuf v. Adegoke & Anor. (2007) II NWLR (Pt. 1045) 332 @ 361 -362 H. Counsel submitted that under the doctrine of res judicata, within a cause of action, that several issues may come into question which are quiet necessary for the determination of the entire case. That the rule is that, once one or more of such issues have been distinctly raised in a cause of action and appropriately resolved in one way or the other among the

contending parties in Court of competent jurisdiction, that as a rule neither party nor his servant, agent or privy is allowed to re-open the case in another action between the same parties, agents or privies. He relied on Ito v. Ekpe (2000) 3 NWLR (Pt. 650) 678 (P275). Counsel reproduced certain indices that must be set out before the plea of res judicata can succeed at page 10 of the respondent’s brief of argument. He referred the Court to the case of The Honda Place Ltd. vs. Globe Motors Ltd (2005) 14 NWLR (945) 273 @ 291 B -E.

Counsel opined further, that the identity of the said land was succinctly established in the evidence of the respondent as plaintiff in exhibit D1 and that the trial Court confirmed the land in its judgment at page 119 lines 7— 11 of the record of appeal. He submitted that the Grade 1 Area Court, Anyigba was/is competent to litigate over a piece of land situate at Anyigba and upon parties resident therein. That the Court has territorial jurisdiction as wells as jurisdiction over the parties and the subject matter. That the judgment of the Grade 1 Area Court, Anyigba vide exhibit D1 is subsisting. He urged the Court to so hold. He maintained that the Exhibit D1 was not appealed against.

On the issue of partition of the said land or part therefrom between the families of the appellant, counsel submitted that such is the disguise upon which the appellant had wanted to resurrect dead and buried suit, which the doctrine frowns at. That the history of devolution as highlighted relegates the issues of partition of the land to the back ground and that, postulates that the land remains one indivisible demographic area of 222 human spaces as contained in exhibit D1. He maintained that the pieces of evidence as to how appellant’s father came to the said land, runs riot with one another and that same is conflicting. That same was only intended to relegate exhibit D1 and that the Upper Area Court was right as concurrently found in favour of the respondent that appellant is estopped. He cited Mrs. Titlayo Cole v. Mrs. Admin Jibunoh and Others (2016) 1 SCNJ 94. He urged the Court to dismiss this appeal with cost for lacking in merit.

On the issue of law, counsel for the appellant submitted that the authorities cited by the counsel for the respondent on the issue of res judicata

correctly illustrate the principle of law that, there must be an end to litigation and that judgment of a Court is conclusive and binding, save when set aside. Contrary to the submission of the counsel to the respondent on exhibit D1, counsel for the appellant posited that whether exhibit D1 is germane or not, that it has no effect whatsoever on the land presently in dispute which forms part of their own share of Atuluku’s land. That the grudge of the lower Court that the date/year of the said sharing was not given is of no moment in view of the fact that the contest in exhibit D1 was concluded on 4th June, 2008 and that prior to that date (2008) dealing with each of the shared land became separate and independent of each other. The learned counsel for the appellant adopted his earlier submissions that the case of the appellant is not caught up by res judicata to that extent. He submitted that the case of Mrs. Titilayo Cole v. Admin Jibunoh (supra) is of no moment to the respondent as the facts and circumstances are not on all fours as is in the instant case.

The issue that is highly contested in this appeal is that of estoppel per res judicata. Res judicata simply means that once a dispute or matter has been finally and judicially pronounced upon or determined by a Court of competent jurisdiction, neither the parties thereto nor their privies can subsequently be allowed to re-litigate the matter because a judicial determination properly handed down is conclusive until reversed by an Appellate Court. The veracity of that decision or determination is also not open to a challenge nor can it be contradicted. The doctrine is grounded in public policy which stipulates that there must be an end to litigation as captured in the Latin maxim “interest reipublicac at sit finis litium”. The plea of res judicata is however available to a defendant as a shield and not to be employed by a plaintiff as a sword as the legal effect of its sustenance by the Court amounts to a decision to the effect that the Court before which it has been raised has no jurisdiction to entertain the matter. The plaintiff in a case can only rely on estoppel simpliciter and not on res judicata. Res judicata therefore, is a defence available to the defendant in a case to impugn the jurisdiction of the Court over the matter brought by a

plaintiff.

A successful plea of res judicata will oust the jurisdiction of the Court before which it is raised. See the case of Yanaty Petrochemical Ltd v. EFCC (2018) 5 NWLR (Pt. 1611) 97.

In the instant case, Exhibit D1 is the focus. It is the document relied upon for the plea of res judicata.
From the record before this Court, Exhibit D1 was tendered before the Upper Area Court Anyigba, the trial Court. Before that Court, the parties on Exhibit D1 were the same with the ones in the present case on appeal.

Exhibit D1 is at pages 112 to 123 of the Record of Appeal. It is the record of the Grade 1 Area Court Anyigba, Kogi State. This is the trial Court in that case. The parties in Exhibit D1 are:
Alhaji Musa Obaka
V.
Adamu Atuluku.
The cause of action from the record reads:
“Plaintiff seeks a declaration to a parcel of land known and called Oko-Okee-dubi which situate at the back of Kogi State University, and an Order to stop the Defendant from carrying out any sales of the said land.”

The parties in the present case which was kick started at the Upper Area Court, Anyigba are:
Hassan Atuluku — Plaintiff
v.
Musa Obaka — Defendant.
The cause of action reads:

Claim of farmland situate at Oko-Oke-dubi and an order restraining the defendant, privies, etc from entering the land.

Adamu Atuluku, who was the Defendant in Exhibit D1 is the confirmed brother of the Plaintiff in the instant case.
The cause in Exhibit D1 was heard by a Court with jurisdiction. Exhibit D1 has not been set aside by any appellate Court, it remained a valid decision of the Court. The parties in Exhibit D1 are the same with the present one. A visit was undertaken to the land by the trial Court and it was confirmed that the parties in Exhibit D1 and the land therein identified is the same land in dispute in the instant case. Adamu Atuluku, plaintiff in Exhibit D1 is proved to be the elder brother of Hassan Atuluku the appellant. The parties are not different. The land is the same. The facts are united on the basis that the parties and the land are the same as in Exhibit D1 and this instant appeal. It shows clearly that the issue of res judicata has been proved as required in our law. I hold therefore, that the sole issue is resolve in favour of the respondent.

From the foregoing therefore, I am of the view that this appeal is lacking in merit. The appeal is accordingly dismissed for lack of merit.
Parties are to bear their respective costs.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I read in draft the lead judgment just delivered by my learned brother, Stephen Jonah Adah, JCA. I agree with the reasoning and conclusion reached.
I also dismiss the appeal for lacking merit and make no order as to costs.

MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; STEPHEN JONAH ADAH, JCA. I agree with the reasoning, conclusion and orders therein.

Appearances:

A.S. Agoli, Esq. For Appellant(s)

Lawrence John, Esq. For Respondent(s)