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BALTA v. YAHAYA (2022)

BALTA v. YAHAYA

(2022)LCN/16046(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Friday, March 25, 2022

CA/G/71/2021

Before Our Lordships:

Ebiowei Tobi Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Muslim Sule Hassan Justice of the Court of Appeal

Between

BANA BABAGANA BALTA BALTA (For and On Behalf of The Heirs of Late Babagana Balta Balta) APPELANT(S)

And

ABBA ALHAJI HASSAN YAHAYA (For and On Behalf of The Heirs of Alhaji Hassan Yahaya) RESPONDENT(S)

 

RATIO

IN DETERMINING WHETHER A COURT HAS JURISDICTION OR NOT

In determining whether a Court has jurisdiction, the constitution of the Court, the subject matter and the procedure in instituting the action will be considered. The person presiding over the matter must be so qualified and competent, the subject matter must be matters that the law has made provision for the Court to adjudicate on and the process by which the action is brought is within the law. This point the Supreme Court emphasized in Nwachukwu vs. Nwachukwu & Anor (2018) LPELR-44696 (SC) at pages 10-11 in these words:
“It is now settled law that jurisdiction is the life blood of adjudication in that any decision by a Court that lacks jurisdiction to hear and determine a matter is a nullity no matter how well conducted. See Madukolu vs Nkemdilim 1962 NSCC 374 at 379 – 380. – PER EBIOWEI TOBI, J.C.A. 

WHAT CONSTITUTE REQUISITE JURISDICTION TO HEAR A MATTER

When can it be said that a Court has jurisdiction to hear and determine a case. As stated earlier, the Supreme Court in the above cited case decided that for a Court to have the requisite jurisdiction to hear a matter:
(a) the Court must be properly constituted as regard numbers and qualifications of members of the bench, and no member is disqualified for one reason or another;
(b) the subject matter of the case is within the jurisdiction of the Court and there is no feature in the case that prevents the Court from exercising its jurisdiction; and
(c) the case comes before the Court initiated by due process of the law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.”
Take jurisdiction away from a Court, it ceases to be a Court as it can do nothing. 

Jurisdiction is conferred by law and not by the consent of parties or by a Court. See Bulus Golit vs IGP (2020) LPELR-50636; Dr J.O.J. Okezie vs Fed. Attorney General (1979) LPELR-2448 (SC); Okocha Osi vs Accord Party & Ors (2016) 12 SC (pt II) 121.The only document to look at outside the law to determine whether a Court has jurisdiction is the statement of claim because this document states the claim which the Court will decide on. PER EBIOWEI TOBI, J.C.A.

THE PRINCIPLE OF ESTOPPEL AND/OR RES-JUDICATA

The principle of res-judicata presupposes that a Court should not encourage a re-litigation of a matter between the same parties or their privies over the same subject matter wherein the same issues are conversed if the matter has been decided on the merit before a competent Court. I will refer to a case or two on this point. In OGBOLOSINGHA & ANOR VS. BAYELSA STATE INEC & ORS (2015) LPELR-24353 (SC) 27-29, the Supreme Court held:
“The law is trite in laying down the fundamental condition precedent to the application of the principles of estoppel and or res judicata wherein the parties and the subject matter of the previous proceedings must be the same with the present under consideration. Judicial authorities have enunciated the principles which are well pronounced in the case of MAKUN VS. F. U. T. MINNA (SUPRA) wherein this Court reiterated that, for a plea of estoppel per rem judicatam to succeed, the party relying thereon must establish the following requirements or pre-conditions namely:-
(a) That the parties or their privies are the same in both the previous and the present proceeding.
(b) That the claim or issues in dispute in both actions are the same.
(c) That the res or the subject matter of litigation in the two cases is the same.
(d) That the decision relied upon to support the plea of estoppel per rem judicatam is valid, subsisting and final.
(e) That the Court that gave the previous decision relied upon to sustain the plea is a Court of competent jurisdiction.
It has also been held severally by this Court that, unless all the above constitutional elements or requirements of the doctrine are fully established, the plea of estoppel per rem judicatam cannot sustain. See also the decisions in YOYE VS. OLUBODE (1974) 10 SC 209; ALASHE VS. OLORI-ILU (1965) NMLR 66; FADIORA VS. GBADEBO (1978) 3 SC 219 and UDO VS. OBOT (1989) 1 SC (PT.1) 64.
Further still, his lordship Onu, JSC re-affirmed the principle in the case of DOKUBO VS. OMONI (SUPRA) wherein he held at page 659 and said:
“It is settled that for the doctrine of estoppel per rem judicatam to apply, it must be shown that the parties, issues and subject matter in the previous action were the same as those in the action in which the plea is raised. See ALASHE VS. OLORI-ILU (1964) 1 ALL NLR 390 at 394; BALOGUN VS. ADEJOBI (1995) 2 NWLR (PT. 376) 131, and FALEYE VS. OTAPO (1995) 3 NWLR (PT. 381) 1.”
From the cumulative summary of the foregoing authorities, it is clear that the existence of the principle is entirely a question of fact for purpose of establishing whether the parties and their privies, the facts in issue and the subject matter of the claim are the same in both the previous and the present suits.
The plea of res judicata is of a special nature as it operates not only against the parties but also the Court itself and robs it of its jurisdiction to entertain the same cause of action on the same issues previously determined between the same parties by a Court of competent jurisdiction.”
See also SENATOR ALPHONSUS UBAIGBEKE VS. LADY MARGERY OKADIBO & ORS ELC (2014) 1131 PAGE 1 – PER EBIOWEI TOBI, J.C.A.

My lords, it is pertinent to state that res judicata is the rule that a final judgment rendered by a Court of competent jurisdiction on the merit is conclusive as to the rights of the parties and their privies, and so constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. See Abiola & Sons B.Co. Ltd v. 7 Up Bottling Co. Ltd (2012) 15 NWLR (Pt. 1322) 173 at 201.
The principle involves the judicial decision estopping or precluding any party thereto in any latter litigation from questioning the correctness of the earlier decision in law and fact. And also, the same issue cannot be raised again between them. The policy is that, is in the interest of the public that there be an end to litigation (ut sit finis litium interest rei publicae). Okere v. Nwoke (1991) 8 NWLR (Pt. 209) 317 at 347.
​The rule is that a final judgment awarded by a Court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, as to them, constitutes an absolute bar to subsequent action involving the same claim, demand or cause of action.

It only applies to litigation, the parties, the issues and the subject matter of the two cases must be the same. The decision must be final and given by a Court of competent jurisdiction. Ntuks & Ors v. Nigeria Ports Authority (2007) 5-6 SC 1 at 22-23.
The rule of res judicata is derived from the maxim, “nemo debet bis vexari pro eadem causa” no one should be twice troubled for the same cause. Is a special defence. Kuusu v. Udom (1990) 1 NWLR (Pt. 127) 421 at 431. – PER MUSLIM SULE HASSAN, J.C.A.

CONDITIONS THAT MUST BE SATISFIED TO SUSTAIN A PLEA OF RES-JUDICATA

To sustain a plea of res judicata, the party must satisfy the following conditions: that the parties or their privies are the same in the present case as in the previous case; and that the issue and the subject matter are the same in the previous case or suit as in the present suit; and that the adjudication in the previous case was given by a Court of competent jurisdiction; and that the previous decision finally decided the issues between the parties. Akayepe & Anor v. Akayepe (2009) 5-6 SC (Pt. 1) 21 at 45 -PER MUSLIM SULE HASSAN, J.C.A.

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice A. Z. Mussa of the High Court of Borno State delivered on 16/7/21 in suit No: BOHC/MG/CV/09/2019-Abba Alhaji Hassan Yahaya vs Baba Babagana BALTA BALTA. The Respondent instituted an action at the lower Court against the Appellants claiming the following reliefs:
a. An order declaring the Defendants as trespassers.
b. An order for the immediate vacant possession of the house.
c. An order of perpetual injunction restraining defendants, their servants, agents, privies or whatsoever claiming through them or through late Babagana Balta Balta from further acts of trespass in the house.
d. An order for the payment of the sum of N1 million general damages for trespass.
e. Cost of this suit.

The Appellant in this appeal was the Defendant in the lower Court while the Respondent was the claimant. The lower Court gave judgment in favour of the Respondent/Claimant in a considered judgment found at pages 89-116 of the records. His lordship in the judgment at page 115-116 of the record held thus:

“I am of the humble opinion that the claimant has discharged the burden of proof placed on him. See the case of Ajuwon & Ors v. Adeoti (1990) LPELR-310 (SC) per NNAEMEKA-AGU, J.S.C. (P. 40, paras C-E) where it was held that:
“In the recent case of Chief Kriah Akpana Adomba & Ors v. Benjamin Odiese & Ors (1990)1 SS.C.J.N. ppat 142-143;(1990)1 NWLR (Pt.125) 165, it is perfectly legitimate for a person who has had a previous suit in his favour either to use it as a foundation for an action in trespass or to go to Court again to add something new to what he already got in the previous judgment in his favour”. See the cases of MOBIL OIL (NIG) LTD. V. O.A. Coker (1975) 3SC 175p. 184, and OKOLI OJIAKO & ORS V. ONWUMA OGUEZE & ORS (1962) 1 ALL N.L.R. 58 p.62
From the foregoing testimonies of the parties, exhibits tendered and submissions of the learned counsels, I spare no doubt that the Claimants’ actions have merit and I am of the humble view that the claimants’ claim must succeed. As it was rightly held in AJUWON & ORS V. ADEOTI (supra)that:
“…it is perfectly legitimate for a person who has had a previous suit in his favour either to use it as a foundation for an action in trespass or to go to Court again to add something new to what he already got in the previous judgment in his favour”.
I therefore, hereby enter judgment as per the Claimant’s claims in paragraph 13 as follows:
a) The Defendants are hereby declared as trespassers.
b) The Defendants are hereby ordered to vacate the house in question immediately.
c) The Defendants, their servants, agents, privies or whoever claiming through them are hereby restrained from further trespassing in the said house.
d) The Claims of N1,000,000.00k damages are hereby refused
e) Cost of the suit N50,000.00k is hereby awarded in favour of the claimant against the Defendant”.

Before the above final decision of the lower Court, it is important to mention that the Appellant, the Defendant at the lower Court filed a preliminary objection to the suit. The lower Court dismissed the Preliminary objection, awarding cost of N25,000.00 in favour of the Claimant/Respondent.

Dissatisfied with the ruling and the judgment, the Appellant filed this appeal of 7 grounds in the Notice of Appeal filed on 5/8/21. I hereby reproduce the grounds of appeal for ease of reference:
Ground 1
The trial Court erred in law when it held that the Defendants/Appellants were trespassers, thereby occasioning a miscarriage of justice.
Ground 2
The trial Court erred in law when it held that the Defendants/Appellants should vacate the house in question immediately.
Ground 3
The trial Court misdirected itself when it accepted and acted upon the purported evidence of the Claimants/Respondents alleging that their late father bought the house from the Defendants/Appellants’ late father and even had an eviction order from the Borno State Rent Tribunal.
Ground 4
The trial Court erred in law when it restrained the Defendants/Appellants, their Servants, Agents, Privies or whoever claiming through them from further trespassing in the said House, thereby occasioning miscarriage of justice.
Ground 5
The trial Court erred in law and misdirected itself when dismissed the preliminary objection raised by the Defendants/Appellants despite overwhelming evidence showing good grounds/reasons to sustain same, thereby occasioning a miscarriage of justice.
Ground 6
The trial Court erred in law when it awarded costs against the Defendants/Appellants and in favor of the Claimants/Respondents thereby occasioning miscarriage of justice.
Ground 7
The decision of the trial Court was against the weight of evidence before it.

The Appellant’s Counsel in this appeal is A. H. Aliyu Esq who settled the Appellant’s brief of 08/10/2021. The Respondent’s Counsel who settled the brief filed on 17/11/2021 is A. A. Sani Esq. The Appellant’s Counsel in the brief of the Appellant formulated four issues for determination viz:
1. Whether, on the state of pleadings and evidence led by parties, the trial Court was correct when it held that the Respondent has proved a better title to the house in question than the Appellants.
2. Whether the trial Court was right to have held and declared the Appellants as trespassers on their property, which they have held in possession and occupied for over 30 years, without establishing any of the five requirements of proving title to land.
3. Whether the trial Court was right to have assumed jurisdiction despite the preliminary objections raised by the Appellants.
4. Whether the trial Court’s decision was against the weight of evidence adduced by the Respondent in the circumstance.

In arguing the appeal on issue 1, the Appellant’s Counsel submitted that it is trite law that in a case for declaration of title to land or landed property, which is a house in this case, the party claiming must establish by concrete and incontrovertible evidence the method through which he acquired the said title referring to the cases of COKER VS SABA & ORS (2018) LPELR-46573 (CA), FOLARANMI & ANOR VS AKINYEMI & ORS (2018) LPELR-44985 (CA), ONWUGBUFOR VS OKOYE (1996) 1 NWLR (Pt.424) 252, FASORO VS BEYIOKU (1988) 2 NWLR (76) 263, OYENEYIN VS. AKINGUGBE (2010) 4 NWLR (Pt 1184) 265. The Respondent failed to prove their title to the land as they could not establish their title to the property in issue as they could not present to the Court any evidence of the sale of the property from the Appellant’s father to their father. The law requires that they do so on the strength of their case and not on the weakness of the Appellant’s case, Counsel submitted referring to ASHIRU VS. OLUKOYA (2006) 11 NWLR (Pt.990)1, LAWAL VS. AKANDE (2009) 2 NWLR (Pt.1126) 425. The Claimants/Respondents failed to discharge the burden on them to prove that they have a better title to the land than the Defendants/Appellants, Counsel urges the Court to resolve this issue in favour of the Appellants.

On issue 3, it is the firm submission of Counsel that jurisdiction is the life wire of adjudication and a decision reached without requisite jurisdiction is fatal and goes to nullity referring to IBADAN NORTH EAST LOCAL GOVERNMENT & ANOR VS MAKINDE (2018) LPELR-44984; STATE VS. ONAGORUWA (1992) LPELR-3228; AG LAGOS STATE VS. DOSUNMU (1989) LPELR–3154, EFCC & ORS VS. ODIGIE (2012) LPELR-15324; PDP VS. EZEONWUKA & ANOR (2017) LPELR-42563. An objection touching on the jurisdiction of a Court to entertain a matter is an issue of law and should be given apt, ardent and prompt attention. It is the submission of Counsel that the lower Court was wrong in not upholding the preliminary objection. To fortify this argument counsel relied on Exhibits DW1A, DW1B and DW1C.

​On issue 4, Counsel submitted that it has long been settled that Courts of law will at all times consider the evidence adduced by litigants during trial before reaching a decision. When an Appellant complains that the decision of the lower Court is against the weight of the evidence adduced what he means is that considering the evidence adduced by the Respondent, the Court should not have given the decision it gave because the evidence is not weighty enough to get that kind of judgment. He relied on AGBASI VS. UBA PLC (2019) LPELR-47193; ELAYO VS VEREGH & ORS (2019) 47134; ORAEKWE & ANOR VS. CHUKWUKA & ORS (2010) LPELR-9128 AND AYABAM VS C.O.P BENUE STATE (2019) LPELR-47283. The Respondents’ claim of sale and tenancy agreement without any evidence to such sale or tenancy agreement despite being sought for during cross-examinations at the trial Court is fatal to his case.

​Learned Counsel finally submitted that the decision of the trial Court is against the weight of evidence and therefore this Court should allow this appeal and set aside the judgment of the lower Court. I must state that no argument was advanced on issue 2, the implication is that issue 2 is abandoned.

The Respondent’s Counsel, A. A. Sanni Esq in the Respondent’s brief formulated a sole issue for determination as follows:
“Whether or not having regard to Exhibit PWA the trial Court was right to have entered judgment for the Respondent?’’.

On the sole issue, Counsel submitted that in an action for trespass, where the defendant raises the issue that he is also the owner of the said property in dispute, the title of parties are put in issue and therefore the most important consideration for cases of trespass is possession. He relied on the case of OHAEGBU & ORS V. REGD TRUSTEES OF CAPUCHIN FRIARS MINOR NIG (2015) LPELR 25878 AT P.17 PARAS D-F. ANYANWU & ORS V. UZOWUAKA & ORS (2009) LPELR-515 AT P 54 Paras D-F. EKRETSU & ANOR V. OYOBEBERE & ORS (1992) LPELR-1099 AT P.28 PARA A; ODERINDE V. AYODELE & ANOR (2014) LPELR-23706 P. 49 PARAS D-F.

​It is the firm submission of Counsel that the issue of title was put to rest by the judgment of this Court delivered on 14/4/14 in Appeal no: CA/J/225/99 as exhibited in Exhibit PWA, as such the issue of title cannot be validly raised again by the Appellants, the issue becoming res judicata more so when the judgment of the Court has not been challenged. The judgment is valid and subsisting, Counsel submitted referring to OTU V. A.C.B. INTERNATIONAL BANK PLC (2008) 1 SCNJ 189; ISAH ONU & ORS V. IBRAHIM IDU & ORS (2006) 5SCNJ 23 AT 34; CALABAR V. EKPO (2008) 2SCNJ 307 AT324-325; APGA & ANOR V. UMEH (2011) 3SCNJ 274; UBA & ANOR AUTA (2021) LPELR 54907.

Counsel submitted relying on GBEMISOLA V. BOLARINWA & ANOR (2014) LPELR-22463 AT 22-23 PARAS C-A; AJUWON & ORS V. ADEOTI (1990) LPELR 310; CHIEF KRIAH AKPANA ADOMBA & ORS V. BENJAMIN ODIESE & ORS (1990)1 SCNJ 135 AT Pp 142-143; ITO & ORS V. EKPE & ORS (2000) LPELR 1561 AT Pp16-17 PARAS C-D; UZIM & ANOR V. INSHIOGU (2021) LPELR-55134 15-17 PARAS C-F that PWA was used in laying foundation of this suit before the trial Court and should be binding on parties and non-parties.

​The Respondent’s father was placed in possession of the land in dispute as a result of the enforcement of the orders of this Court which confirmed the judgment of the Rent Tribunal and the Borno State High Court.

The presence of the Appellant in the house which is the property in dispute based on the above makes the Appellant trespassers on the property, Counsel submitted. He referred to the case of ANSA & ORS V. ISHIE & ORS (2005) LPELR-497 AT P.19 PARA B; UDE & ORS V. CHIMBO & ORS (1998) LPELR-3288 AT P. 44 PARA A; CARRENA & ORS V. AKINLASE (2008) LPELR-833 (SC) P.18 PARAS D-E; EGBAREVBA V. ORUONGHAE (2001) LPELR-10341 (CA) AT P.30-31 PARAS E-A; AKINKUGBE V. EWULUM HOLDINGS (NIG) LTD & ANOR (2008) LPELR 346 (SC) AT P.23 PARA A; IWENOFU V. IWENOFU (1975) LPELR-1565 (SC) P.13 PARA A.

On the definition of trespass as an unjustified interference with or intrusion to possession of land, Counsel relied on the cases of: ANYABUNSI V. UGWUNZE (1995)6 NWLR (401) 255; NITTEL PLC V. ROCKONOH PROP. CO. LTD (1995); SALAWU V. LAWAL & ORS (2012) LPELR-9759 (CA) AT P.25 PARAS A-C; OGUNBIYI V. ADEWUMI (1988) LPELR-2324 (SC) AT P.8 PARAS F-G AND RICK ROCK CONSTRUCTION CO. (NIG) LTD V. ALHASSAN (2019) LPELR-50349 (CA); APENA & ANOR V. AILERU & ANOR (2014) LPELR-23305 (SC)

​Learned Counsel went into town referring to several cases stating the principles and the law governing possession and trespass. The trial Court established that the Appellant interfered with the Respondent’s right of possession by entering the house during the period of insurgency having regard to Exhibit PWA, the Appellant have no title or right to possession over the property Counsel submitted that where two or more parties claim possession to the same property, trespass can only be at the suit of that party who can show that title to the property in dispute is his. He referred to the case of OHAEGBU & ORS V. REGISTERED TRUSTEES OF CAPUCHIN FRIARS MINOR NIG (SUPRA); AYANBOYE & ORS V. BALOGUN (1990) LPELR-668 (SC) AT P.37 PARA A; EKPAN & ANOR V. UYO & ANOR (SUPRA); CARRENA & ORS V. AKINLASE & ORS (SUPRA).

Counsel submitted in addressing issue 3 formulated and argued by the Appellant, that the law is settled that a Judge at arriving at a decision is not to look at the quantity of evidence before him, rather he should look at the quality of the evidence at his disposal. Appellant’s Counsel relied on the cases of: MUSA V. YAKUBU & ORS (2015) LPELR-40377 (CA) AT P.29 PARAS C-E; ZUBAIRU V. STATE (2015) LPELR-40835 (SC) AT P.17 PARA D. All the evidence led by the Appellant before the trial Court are not worthy of being believed and were only made to pervert the cause of justice and they do not carry any weight and or quality, hence failed to and cannot stand in the face of Exhibit PWA and testimonies of PW1 and PW2. Counsel submitted while relying on the cases of ODERINDE V. AYODELE & ANOR (supra); ANYANWU & ORS V. UZOWUAKA & ORS (supra); SANNI & ORS V. TAIRU & ANOR (2020) LPELR-50429 (CA) AT P.23 PARAS B-C; OJIAKO & ANOR V. EWURU & ORS (1995) LPELR-2373 (SC) AT P.27 PARAS E-F that the decision can only be faulted on appeal if it is shown to be perverse or had occasioned a miscarriage of justice.

​Counsel finally submitted that the Appellant has failed to prove his case and therefore urge this Court to resolve the issue in favour of the Respondent and dismiss this appeal.
The Appellant’s Counsel filed a reply brief on 10/12/21 in which he made some replies to the points raised in the Respondent’s brief. Appellant’s Counsel submitted that the argument in the Respondent’s brief failed to address the issues canvassed by the Appellant and so no reasonable Court or Tribunal can accept same. He referred to a plethora of cases AMASA & ORSVS. THE CHAIRMAN, NATIONAL POPULATION COMMISSION & ORS (2014) LPELR-22772(CA), IKENTA BEST (NIG.) LTD VS. ATTORNEY GENERAL RIVERS STATE (2008) NWLR (PT. 1084) P.612; FBN VS. DAVIES (2017) LPELR-43556 (CA); OYETOLA VS. ADELEKE & ORS (2019) LPELR-47529(CA), OGUNYE & ORS VS. STATE (1999) LPELR-2356 (SC); OKASI VS. STATE (2016) LPELR-40454 (CA); UBOH VS FRN (2019) LPELR-48739(CA); BELLI & ORS VS. STATE (2018) LPELR-45390 (CA) AND OGUDO VS. STATE (2011) LPELR-860 (SC).

Appellant’s Counsel submitted that the trial Court lacked jurisdiction to try the matter and a preliminary objection was raised in this regard which the trial Court ignored. The law is settled that jurisdiction is the life wire of adjudication and no matter how well a matter is adjudicated it comes to a nullity if done without jurisdiction. He referred to the cases of AG KWARA STATE V. ADEYEMO & ORS (2016) LPELR-41147(SC); OMOTAYO & ORS VS. BANKOLE & ORS (2021) LPELR-52454 (CA); AYENI & ORS VS. OBASA & ANOR (2010) LPELR-3829

Appellant’s counsel submitted that the combined presence of suits No M/81/95, M/374/2000, M/66/06, NO. 66MA/2009, which are all in favour of the Appellant ousts the jurisdiction of the trial Court to try the matter.

​The Appellant in the ground of appeal has raised the issue of jurisdiction in ground 5 which is issue 3. The Appellant/Defendant in the lower Court has filed a preliminary objection to the suit which was dismissed by the lower Court. The bases of the objection is that there are several cases and decisions that have been taken between the parties and their privies including CA/J/225/99 which confirmed the decision of the Rent Tribunal in Suit No: which the Borno State High Court also affirmed. The initial journey of this case over the land and subsequently the house began in the Rent Tribunal in 1997. The land as agreed by all the parties belonged to the Respondent’s late father which was sold to the Appellant’s late father. The Appellant’s father was allowed to stay on in the property but subsequently, they left and the Respondent’s father put tenants in the house. However, due to the insurgency, the tenants left and subsequently, the Appellant was found in the property. The Respondent instituted the action in the lower Court as Claimant wherein the Appellant as Defendant raised the preliminary objection which was dismissed. Ground 5 of the Notice of Appeal is effectively an appeal against the ruling. To appreciate this point I am making I will reproduce ground 5 again as follows:
The trial Court erred in law and misdirected itself when (sic) dismissed the Preliminary objection raised by the Defendant? Appellants despite overwhelming evidence showing good grounds/reasons to sustain same, thereby occasioning a miscarriage of justice.

This ground was formulated as issue 3 in the Appellant’s brief in these words:
Whether the trial Court was right to have assumed jurisdiction despite the preliminary objections raised by the Appellants.

​The Learned Counsel addressed it as issue 3. Though in the Respondent’s brief, a sole issue was formulated for determination in which the law on trespass and possession was mainly addressed on pages 10-11 covering paragraphs 4.00-4.08 of the record Respondent’s counsel addressed the issue of jurisdiction. The Appellant has submitted that the lower Court was wrong to have assumed jurisdiction, the Respondent is firm in saying that the lower Court was right in assuming jurisdiction. Since the issue of jurisdiction is placed before the Court, the settled and trite law is that it has to be dealt with first. The reason is not farfetched. Jurisdiction is seen as the power conferred on a Court by statute to adjudicate over certain and specific matters. Jurisdiction is the power of the Court to determine the rights and liability brought before a Court. In other words, judicial power is different from jurisdiction. Judicial power is wider than jurisdiction. If I may, judicial power is general power on Courts to adjudicate on matters as stated in Section 6 of the 1999 Constitution of the Federal Republic of Nigeria as amended. Any Court in Nigeria can exercise judicial powers. Within the judicial powers comes jurisdiction which is more specific and to the point. It is not every Court with judicial powers that has jurisdiction over a matter presented before it, for instance, the Federal High has judicial powers but their jurisdiction is limited to certain areas as entrenched in Sections 251 respectively of the Constitution.
It is important to determine the jurisdiction of any Court because any proceedings done by any Court that lacks jurisdiction amount to a complete waste. In fact, the decision from that proceeding no matter how brilliant will amount to a nullity. See Okoro vs Nigerian Army Council (2000) 3 NWLR (pt 647) 77; Akono vs Nigerian Army (2000) 14 NWLR (pt 687) 318. In Chief of Air Staff & Ors vs. Iyen (2005) 1 SC (pt. ii) 121, the Supreme Court held:
“A decision given by a Tribunal or Court without jurisdiction is a nullity. If the State High Court gives a decision on a case which falls within the exclusive jurisdiction of the Federal High Court, that decision is null and void and cannot sustain a plea of res judicata. In the same vein, if a Magistrate tries and convicts a person for murder for which he lacks jurisdiction to try the person so convicted cannot successfully raise a plea of autrefois convict to prevent a subsequent trial before a Court vested with jurisdiction to try him”.
​In Owner of the MV ‘Arabella vs. Nig. Agricultural Insurance Corporation NSCQR Vol. 34 2008, Ogbuagu, JSC, his lordship affirms the above position in these words:
“Judgment or order by a Court without jurisdiction is a nullity. If a Court is shown to have no jurisdiction, the proceedings however well conducted, are a nullity.”
Jurisdiction is so important that it is called the life wire to a Court. It is like water to fish, breath to a human being and oxygen to a person in a survival machine. Just as a human being has no life without breath so is a Court without jurisdiction. As earlier mentioned the jurisdiction of a Court refers to the power upon a Court to decide the specific matter or issue presented before it by the parties. A Court may have judicial powers but lacks jurisdiction. When the Claimant brings a matter before it, the jurisdiction of the Court refers to the power of that Court to adjudicate on the matter before it and this can be determined by the writ and the statement of Claim. See Dickson Ogunseinde Virya Farms Ltd vs. Societe General Bank Ltd & Ors (2018) 9 NWLR (Pt. 1624) 230; Adetayo & Ors vs. Ademola & Ors (2010) 3-5 SC (Pt.1) 87. In A.G. Federation vs. A.G. Lagos State ​(2017) I SC (Pt. II) 88, the apex Court held:
“There is no gainsaying that issue of jurisdiction is radical and a crucial point which when raised, is challenging the competence of the Court to hear and determine the case. Any proceedings conducted by a Court which does not have jurisdiction, no matter how well or brilliantly it was conducted is a nullity. See Dapianlong vs Dariye (2007) 8 NWLR (pt. 1036) 332. That is the more reason why when Court’s jurisdiction is challenged, the Court must first of all assume jurisdiction to decide whether in very clear and unambiguous terms, it has or lacks jurisdiction. See State V. Dosunmu, Manson vs Halliburton Energy Services Ltd (2007) 2 NWLR [pt.108) 211; Nnonye v Anyichie (2005) 2 NWLR (pt. 910) 623.
Also, where jurisdiction of a Court is challenged over a matter or suit, that Court must consider the averments of the plaintiff in his statement of claim filed before it, in order to decide whether it has jurisdiction to entertain it or not.”

​In determining whether a Court has jurisdiction, the constitution of the Court, the subject matter and the procedure in instituting the action will be considered. The person presiding over the matter must be so qualified and competent, the subject matter must be matters that the law has made provision for the Court to adjudicate on and the process by which the action is brought is within the law. This point the Supreme Court emphasized in Nwachukwu vs. Nwachukwu & Anor (2018) LPELR-44696 (SC) at pages 10-11 in these words:
“It is now settled law that jurisdiction is the life blood of adjudication in that any decision by a Court that lacks jurisdiction to hear and determine a matter is a nullity no matter how well conducted. See Madukolu vs Nkemdilim 1962 NSCC 374 at 379 – 380.
When can it be said that a Court has jurisdiction to hear and determine a case. As stated earlier, the Supreme Court in the above cited case decided that for a Court to have the requisite jurisdiction to hear a matter:
(a) the Court must be properly constituted as regard numbers and qualifications of members of the bench, and no member is disqualified for one reason or another;
(b) the subject matter of the case is within the jurisdiction of the Court and there is no feature in the case that prevents the Court from exercising its jurisdiction; and
(c) the case comes before the Court initiated by due process of the law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.”
Take jurisdiction away from a Court, it ceases to be a Court as it can do nothing.

Jurisdiction is conferred by law and not by the consent of parties or by a Court. See Bulus Golit vs IGP (2020) LPELR-50636; Dr J.O.J. Okezie vs Fed. Attorney General (1979) LPELR-2448 (SC); Okocha Osi vs Accord Party & Ors (2016) 12 SC (pt II) 121.

The only document to look at outside the law to determine whether a Court has jurisdiction is the statement of claim because this document states the claim which the Court will decide on.

​Having stated the importance of jurisdiction, let me now look at the issue 3 on jurisdiction and resolve same in this appeal. The Appellant relied on Exhibit DW1A, DW1B and DW1C to buttress the issue of jurisdiction based on the principle of res-judicata. The principle of res-judicata presupposes that a Court should not encourage a re-litigation of a matter between the same parties or their privies over the same subject matter wherein the same issues are conversed if the matter has been decided on the merit before a competent Court. I will refer to a case or two on this point. In OGBOLOSINGHA & ANOR VS. BAYELSA STATE INEC & ORS (2015) LPELR-24353 (SC) 27-29, the Supreme Court held:
“The law is trite in laying down the fundamental condition precedent to the application of the principles of estoppel and or res judicata wherein the parties and the subject matter of the previous proceedings must be the same with the present under consideration. Judicial authorities have enunciated the principles which are well pronounced in the case of MAKUN VS. F. U. T. MINNA (SUPRA) wherein this Court reiterated that, for a plea of estoppel per rem judicatam to succeed, the party relying thereon must establish the following requirements or pre-conditions namely:-
(a) That the parties or their privies are the same in both the previous and the present proceeding.
(b) That the claim or issues in dispute in both actions are the same.
(c) That the res or the subject matter of litigation in the two cases is the same.
(d) That the decision relied upon to support the plea of estoppel per rem judicatam is valid, subsisting and final.
(e) That the Court that gave the previous decision relied upon to sustain the plea is a Court of competent jurisdiction.
It has also been held severally by this Court that, unless all the above constitutional elements or requirements of the doctrine are fully established, the plea of estoppel per rem judicatam cannot sustain. See also the decisions in YOYE VS. OLUBODE (1974) 10 SC 209; ALASHE VS. OLORI-ILU (1965) NMLR 66; FADIORA VS. GBADEBO (1978) 3 SC 219 and UDO VS. OBOT (1989) 1 SC (PT.1) 64.
Further still, his lordship Onu, JSC re-affirmed the principle in the case of DOKUBO VS. OMONI (SUPRA) wherein he held at page 659 and said:
“It is settled that for the doctrine of estoppel per rem judicatam to apply, it must be shown that the parties, issues and subject matter in the previous action were the same as those in the action in which the plea is raised. See ALASHE VS. OLORI-ILU (1964) 1 ALL NLR 390 @ 394; BALOGUN VS. ADEJOBI (1995) 2 NWLR (PT. 376) 131, and FALEYE VS. OTAPO (1995) 3 NWLR (PT. 381) 1.”
From the cumulative summary of the foregoing authorities, it is clear that the existence of the principle is entirely a question of fact for purpose of establishing whether the parties and their privies, the facts in issue and the subject matter of the claim are the same in both the previous and the present suits.
The plea of res judicata is of a special nature as it operates not only against the parties but also the Court itself and robs it of its jurisdiction to entertain the same cause of action on the same issues previously determined between the same parties by a Court of competent jurisdiction.”
See also SENATOR ALPHONSUS UBAIGBEKE VS. LADY MARGERY OKADIBO & ORS ELC (2014) 1131 PAGE 1.

The party that wants to invoke the principle of res-judicata has the duty in law to show that the ingredients that will enhance the operation of the doctrine do exist. That is to say that the party must show that a competent Court of law, that is a Court that has jurisdiction had decided on the merit of the case that is before the current Court to which the previous case will operate as res-judicata. The parties in the case must be the same or they must be privies to the case either by estate or by blood, that is to say, the decision will bind those who were not specifically mentioned as parties but will be estopped from re-litigating on the subject. For the principle to apply therefore, the parties, the subject matter and the issues must be the same in both cases. The conditions stated herein are mutually inclusive and not mutually exclusive.
​Apart from Exhibit DW1A, DW1B and DW1C, another relevant exhibit is PWA1. I have looked at Exhibits DW1A, DW1B and DW1C, I am not inclined to hold that they operate as res-judicata to the case on appeal. The party in the case on appeal that is BOHC/MG/CV/09/2019 are Abba Alhaji Hassan Yahaya who is suing for himself and on behalf of the heirs of Alhaji Hassan Yahaya. There are persons who are not mentioned specifically in the suit as Claimant but they are so by operation of law as privies once they are heirs of the estate of Alhaji Yahaya. This includes PW2 at the lower Court. The Defendant in the lower Court is Bana Babagana Balta Balta and Ibrahim Babagana Balta Balta who are suing for themselves and on behalf of the heirs of Late Babagana Balta Balta. For Exhibit DW1A, DW1B and DW1C to operate as res-judicata, the first step is to show that the parties are the same. The parties in suit Nos: M/85/95; M/374/2000 and M/66/06 which were all cases in the High Court of Borno State has Baba Gana Bulama as Plaintiff and Alhaji Hassan Yahaya as Defendant. In suit No M/374/2000, in addition to the parties mentioned above there are two additional Defendants which are Alhaji Sani Mai Lemu and Mallam Dan Kawo. The only Defendant in Suit No. M/66/06 is Sani Hassan Yahaya. We can see that the only constant name is Baba Gana Bulama as Plaintiff who is not the same name on the face of it with the Appellant in the case leading to this appeal. Even if we let that pass in view of the evidence of DW1 at page 103 of the record where he said the alias of Babagana Balta Balta is Baba Gana Bulama, there is no evidence anywhere to show that the persons are the same. The Defendant in Suit No: M/81/95 is the same as the Respondent in this appeal. The Defendant in the other cases do not appear to be the same. In light of that, there is need for evidence to show that they fall within the meaning of the heirs of Late Babagana Balta Balta and Alhaji Hassan Yahaya. On this point of the parties alone, those cases cannot operate as res-judicata in the case that leads to this appeal.
​Apart from that, in my opinion, one very important evidence lacking is that there is nothing to show that the subject matter is the same in the previous cases with the case leading to this appeal and as to whether the issues in both cases are the same. This is a fundamental defect in the case of the Appellant in the preliminary objection. The Appellant only tendered the enrolment of orders. This is not enough and indeed grossly deficit to meet the condition for res-judicata to operate on the premise of the subject matter and the issues being the same. In all the exhibits, there is nothing to show that the property that the orders cover is the subject matter in the case on appeal. If the Appellant really wanted this Court to view those Exhibits seriously, the judgment of those Courts would have been tendered or annexed as they would have brought out the issues and the subject matter. An enrolment of order is not the judgment. I make bold to say for whatever it is worth, there is a difference between enrollment of order and the judgment of the Court. See Obi vs Obi & Anor (2004) LPELR-7353 (CA); Shittu vs Kwara State Polythenic Ilorin (2014) LPELR-23820(CA).
In the light of the above, I make bold to say Exhibits DW1A, DW1B and DW1C which are cases that the Appellant seem to want to rely on to the effect that previous judgment has been entered by the Courts in their favour cannot really help the Appellant or their case in this appeal as they cannot operate as res-judicata.

​Before the lower Court and this Court is Exhibit PWA which the Respondent believes should have made the Court to rule in favour of the Respondent. Exhibit PWA is a decision of this Court delivered on 14/4/2004 in Appeal No: CA/J/225/99 where this Court dismissed the appeal of the Appellant who is also Appellant in this appeal challenging the decision of the Rent Tribunal and the High Court which gave judgment to the Respondent over the same property. The Appellant in Suit No: CA/J/225/99 is the Appellant before this Court just as the Respondent is the same before this Court. The subject matter and the issues in the cases are the same. The Respondent took the Appellant to the Rent Tribunal for the Recovery of his premises under the Recovery of Premises Law of Borno State. The Rent Tribunal held in favour of the Respondent who was Plaintiff before it in 1997. On appeal to the High Court in Borno State by the present Appellant, the appeal was dismissed on 9/4/1999. That case was appealed to this Court and the grounds of appeal were basically on whether the Court below erred in law in affirming the decision of the Borno State Rent Tribunal and whether the Rent Tribunal had jurisdiction to entertain the matter. This Court held in Exhibit PWA at page 11 of the judgment that the Rent Tribunal had jurisdiction to entertain, hear and determine the suit that lead to that appeal which in all material matter deals with similar issues in this appeal. In Exhibit PWA, this Court at page 12 dismissing the appeal and held:
“I therefore, with respect, reject in its entirety, all the submissions by Mr. Popoola in the Appellant’s brief as being untenable and in fact, with profound humility, a dissipation of unnecessary energy. This issue and ground No. 2 on which it is distilled from, fail and they are accordingly, dismissed.
In the end result, the appeal fails completely and it is dismissed as lacking in substance and merit. I hereby affirm the said decision of the Borno State High Court sitting in Maiduguri and delivered on 9th April, 1999.”

This Court had dismissed in Appeal No CA/J/225/1999 the preliminary objection which was challenging the jurisdiction of the Rent Tribunal and the lower Court. I do not believe that the lower Court erred in law in dismissing the preliminary objection as the whole issues in contention has been dealt with on appeal to this Court in CA/J/225/1999.

In the light of the decision of this Court in Appeal No. CA/J/225/1999 over the same matter between the same parties over the same issues, this appeal fails and it is dismissed. I see no reason to depart from that decision of this Court. The decision of the Rent Tribunal and the Borno State High Court in Suit No: BOHC/MG/CV/09/19 is hereby affirmed. For the avoidance of doubt, the preliminary objection raised by the Appellant could not succeed as those cases which the Appellant depended on did not meet the requirement of the law in the application of the doctrine of res-judicata. On the other hand, this Court having upheld the decision of the Rent Tribunal and the lower Court in a similar matter, I cannot see my way clear to hold otherwise. Since the decision of the lower Court is in line with the decision of this Court on appeal in this matter which did not favour the Appellant, this appeal cannot succeed. It is dismissed.

In the light of that, I see no reason whatsoever to deal with all the issues formulated and argued by the Appellant’s Counsel in this appeal especially relating to the issues of long possession and trust agreement. This is because that was all that was considered in the previous case that culminated into the appeal decided by this Court in 1999 registered as CA/J/225/1999. Going into all that will be a wasteful journey. I resist the temptation to go on such a journey.

​Before I sign off on this judgment permit me to observe by way of Obiter Dictum that I am at a loss why a minister in the temple of justice agrees to pursue this appeal in the light of the decision of this Court in Appeal No CA/J/225/1999. As Counsel, we owe our client the duty and responsibility to give our clients the best advice and most importantly assist the Court in ensuring that justice is done.

I award N300,000 in favour of the Respondent against the Appellant.

USMAN ALHAJI MUSALE, J.C.A.: My brother EBIOWEI TOBI, JCA. availed me with the judgment in draft before now. His Lordship has painstakingly dealt with the issues raised before us and has determined them as agreed.

The main issue before this Court had been decided upon on 14/04/2004 in APPEAL NO. CA/J/225/99 over the same matter and between the same parties.

It is settled law that a previous decision of any Division of the Court of Appeal is binding on all the Justices of that Court. Per Uwais, JSC (as he then was) later CJN in ROSSEK & ORS VS. ACB LTD & ORS (1993) 8 NWLR (Pt. 312) 382.

It is for this reason and the fuller reasons given by my learned brother that I too found no merit in the appeal, appeal dismissed. I abide by the consequential orders therein.

MUSLIM SULE HASSAN, J.C.A.: I had the privilege of reading in its draft form, the lead judgment of my learned brother EBIOWEI TOBI, JCA, which has just been delivered. I agree with my lord that the appeal lacks merit and it is hereby dismissed.

My lords, it is pertinent to state that res judicata is the rule that a final judgment rendered by a Court of competent jurisdiction on the merit is conclusive as to the rights of the parties and their privies, and so constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. See Abiola & Sons B.Co. Ltd v. 7 Up Bottling Co. Ltd (2012) 15 NWLR (Pt. 1322) 173 at 201.
The principle involves the judicial decision estopping or precluding any party thereto in any latter litigation from questioning the correctness of the earlier decision in law and fact. And also, the same issue cannot be raised again between them. The policy is that, is in the interest of the public that there be an end to litigation (ut sit finis litium interest rei publicae). Okere v. Nwoke (1991) 8 NWLR (Pt. 209) 317 at 347.
​The rule is that a final judgment awarded by a Court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, as to them, constitutes an absolute bar to subsequent action involving the same claim, demand or cause of action.

It only applies to litigation, the parties, the issues and the subject matter of the two cases must be the same. The decision must be final and given by a Court of competent jurisdiction. Ntuks & Ors v. Nigeria Ports Authority (2007) 5-6 SC 1 at 22-23.
The rule of res judicata is derived from the maxim, “nemo debet bis vexari pro eadem causa” no one should be twice troubled for the same cause. Is a special defence. Kuusu v. Udom (1990) 1 NWLR (Pt. 127) 421 at 431.

To sustain a plea of res judicata, the party must satisfy the following conditions: that the parties or their privies are the same in the present case as in the previous case; and that the issue and the subject matter are the same in the previous case or suit as in the present suit; and that the adjudication in the previous case was given by a Court of competent jurisdiction; and that the previous decision finally decided the issues between the parties. Akayepe & Anor v. Akayepe (2009) 5-6 SC (Pt. 1) 21 at 45.

In the instant case as rightly observed by my learned brother in the lead judgment, the preliminary objection raised by the Appellant could not succeed as those cases that is Exhibits DW1A, DW1B, and DW1C which the Appellant depended on as res-judicata did not meet the requirement of the law in the application of the doctrine of res-judicata.

In the light of the above and the more comprehensive reasons set out in the lead judgment of my learned brother, I also dismiss the appeal.

​I abide by the order as to costs made in the lead judgment.

Appearances:

A. H. Aliyu, Esq. For Appellant(s)

A. M. Adamu, Esq. For Respondent(s)