BUKAR v. MASIDA (NIG) LTD & ORS
(2021)LCN/15142(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Wednesday, March 03, 2021
CA/G/164/2018
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Tunde Oyebanji Awotoye Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
WAZIRI GREMA MOHAMMED BUKAR APPELANT(S)
And
1. MASIDA (NIG) LTD 2. ALH. MUHAMMED S. DALLA 3. DEPUTY SHERIFF, BORNO STATE HIGH COURT RESPONDENT(S)
RATIO
WHEN IS A MATTER RES JUDICATA; CONDITIONS THAT MUST BE MET BEFORE THE PLEA OF RES JUDICATAM CAN STAND
Where a Court of competent jurisdiction has settled a matter, in a final decision, between the parties, neither a party nor his privy may relitigate that issue again by bringing a fresh action. The matter is RES JUDICATA. See OSUNRINDE & ORS VS AJAMOGUN & ORS (1992) 6 NWLR PART 246 P. 156. The condition for its applicability is well set out in a line of judicial authorities. See OGBOLOSINGHA & ANOR VS BAYELSA STATE INEC & ORS (2015) 6NWLR (PT. 1455) pg 311. The conditions are: (i) That the parties or their privies are the same in both the previous and present proceeding.(ii) The claim or issue in both actions are the same (iii) The res or the subject matter of litigation in the two cases is the same (iv) That the decision relied upon to support the plea of estoppels per rem judicatam is valid, subsisting and final (v) That the Court that gave the previous decision relied upon to sustain the plea is a Court of competent jurisdiction All the above conditions must be fully met before the plea of res judicatam can stand. See UDO VS OBOT (1989) I.S.C. (PT 1) 64. PER TUNDE OYEBANJI AWOTOYE, J.C.A.
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the Appellant against the decision of the Borno State High Court in BOHC/MG/CR/78/2015 delivered on 15th February, 2016.
The Claimants at the lower Court had instituted an action against the defendants claiming as per paragraph 38 of their statement of claim as follows:
a. A declaration that the claimants are entitled to and are holders and legal interest owners in and over property covered by a Statutory Right of Occupancy NO. BO/14700 dated 22nd day of June 1987 covering an area of 1200.68 square meters lying and situate at Bulumkutu within the Maiduguri Metropolitan Area of Borno State issued to one Alhaji Ali Zingina who assigned same to Alhaji Umaru Dankaka and the said Alhaji Umaru Dankaka also assigned same to the claimants.
b. A declaration that the property covered by Statutory Right of Occupancy No. BO/14700 which the defendants are wrongly claiming to be a land they disputed with one Alhaji Umaru Dan Kaka is quite different and cannot be the same land covered by the judgment of Borno State
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High Court No. 2 in suit No. M/37/2001.
c. A declaration that the land upon which a Customary Right of Occupancy No. 011998 was issued by Maiduguri Council to the defendant is not the same with the land covered by Statutory Right of Occupancy No. BO/14700 as they are different in size, description and location and therefore cannot be attached in satisfaction of the judgment of the Borno State High Court No.2 in suit No. M/37/2001.
d. An Order Perpetual Injunction restraining the defendants whether by themselves, their servants, their privies, their agents, their successors, their representatives or persons or body however described claiming title through them from interfering with the claimants possession, ownership rights and interest in and over the land/property covered by Statutory Right of Occupancy No. BO/14700 with an area of 1200.68 square meters lying and situate at Bulumkutu are of Maiduguri Metropolitan Council Borno State.
e. Two Hundred and Twenty Six Thousand and Ninety Naira only (N226,090:00) daily as special damages for loss of earnings or profit from the 13th November 2015 till unsealing of the claimants property.
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- Twenty five Million Naira (N25,000,000:00) as general damages.
g. Ten Million Naira as exemplary damages for interference embarrassment and disrepute occasioned by the acts of the defendants.
h. Costs of the suit.
Subsequently the Defendant filed a notice of preliminary objection to the competence on the following grounds:
1. High Court of Justice No. 4 Maiduguri Borno State had in the year 1991 fully and finally determined the dispute on the title in the land subject matter of this suit No. M/150/88 between Yamgaram Hajja Hajra the predecessor in title progenitor of the 1st Defendant/Applicant against Alh Ali Zangina the predecessor in title of progenitor Alh Umaru Dankaka and the claimants/respondents.
2. That in suit No. M/150/88 Yamagaram Hajja Hajra the predecessor in title and progenitor of the 1st Defendant/Applicant was victorious over Alh Zangina the predecessor in title and progenitor Alh Umaru Dankaka and the Claimants/Respondents.
3. That Alh Umaru Dankaka and the claimants/respondents are privies to the judgment in Suit No. M/150/88 in which their predecessor in title and progenitor Alh Ali Zangina was defeated by the
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predecessor in title and progenitor of the 1st Defendant/Applicant (Yamagaram Hajja Hajra) and the 1st Defendant too, is a privy to the judgment in the same suit through his predecessor in title and progenitor.
4. The subject matter of this suit lying and situate at Bulumkutu Abuja area along Maiduguri to Kano road Maiduguri between Deribe hospital and college of Islamic Studies Borno State is one and the same as the land subject matter of Suit No. BOHC/MG/CV/78/15 between the claimants/respondents and the 1st defendant/applicant.
5. The Alh Umar Dankaka who bought the land subject matter of suit No. BOHC/MG/78/15 from Alh Ali Zangina through whom the claimants/respondents trace their roots of title was in a separate suit No. M/37/2001 defeat by the 1st Defendant/Applicant Ali Grma Mohammed Bukar on the same land on the 9th of July 2002.
6. The portion being claim by the claimants/respondents measuring 1200.68 square metres is just a portion out of the land which the 1st defendant/applicant bought from his predecessor in title and progenitor (Yamagaram Hajja Hajara) after the 1st Defendant/applicant predecessor in title and progenitor defeated
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the predecessor in title and progenitor of the claimants/respondents and all the those they got their title from.
7. The 1st Defendant/applicant also on 9th July 2002 defeated Alh Umaru Dankala on the same land measuring 200ft by 100ft which is equal to 1140, square metres in suit No. M/37/2001.
8. That Alh Umaru Dankaka appeal the judgment to the Court of appeal Jos and the Court of appeal Jos dismissed his appeal on the 9th March, 2011. And whose brief on behalf of Alh Umaru Dankaka was handled by A.A Sani Esq of Amana Chambers from the trial Court to the Court of appeal Jos, and who drafted the deed of assignment from Alh Ali Zangina to Alh Umaru Dankaka.
9. That after the Court of appeal Jos dismissed the appeal of Alh Umaru Dankaka on the 9th March, 2011, there was no appeal against the dismissal by Alh Umaru Dankaka consequent upon which execution was levied on the land on the 13/11/2015.
10. In the two suit of M/150/88 and M/37/2001, the matters were fully and finally determined in favour of (Yamagaram Hajja Hajra) the predecessor in title and progenitor of the 1st defendant/applicant and the 1st defendant himself Alh Grema Mohammed
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Bukar.
11. The judgments in the two suits M/150/88 and M/37/2001 are final and still valid with no appeal pending against the two of them or any of them set aside by a competent Court, and which are in respect of one and the same land.
12. The claimant/respondents suit is res judicata and ought to be.
After hearing the parties on the objection, the learned trial judge gave ruling dismissing the objection in the following terms:
I have considered submissions of both parties. The Defendant raised res judicata in his motion before us wherein he challenged the jurisdiction of this Court to entertain the matter. Res judicata is defined in Blacks Law Dictionary 1174 inter alia as:
A matter adjudged, anything judicially acted upon or decided, a thing or matter settled by judgment.
A matter adjudicated between parties before a competent Court is conclusive between the parties as to the issue in dispute between them. Such a judgment can be pleaded for being res judicata between the same parties over the same issue in any subsequent trial between the former parties. Hence res judicata is a defensive weapon used by a defendant in a civil
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suit.
In the suit BOHC/MG/CV/78/2015 the parties are:
1. Masida Nigeria Ltd
2. Alh. Muhammad S. Dalla
And
1. Alhaji Grema Mohammed Bukar
2. Deputy Sheriff Borno State
3. High Court of Justice Borno State
4. Attorney –General Borno State
While the parties in suit M/150/88 are:
Yamagaram Hajja Hajra
And
Alhaji Ali Zangina
And the parties in suit No. M/37/2001 are
Alhaji Grema Mohammed Bukar
And
Alhaji Umaru Dankaka
The parties in these 3 suits are different should the parties in suit BOHC/MG/CV/78/2015 will be the same with the 2 former suit supra it still be a question of evidence
The area in suit M/37/2001 is 1140 meters while the area claimed in suit BOHC/MG/CV/78/15 is 1200.69 metre. Definitely the area in dispute in the suits are not the same.
It is for the above reasons I dismiss the preliminarily objection and call for the hearing of the suit on its merit, I make consequential order that parties file a proper site plan of area claimed by each.
Dissatisfied with the said ruling, the appellant by his Fourth Amended notice of appeal filed on 10th
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March, 2020 but deemed filed on 14th October 2020 appealed on four grounds.
The grounds are as follows:
GROUND ONE: The learned judge of the trial Court erred in law, when he held that “the parties in these suits are different, should the parties in suit No. BOHC/MG/CV/78/2015 will be the same with the two (2) former suits supra?” It will be a question of evidence.
GROUND TWO: The learned judge of the trial Court erred in law when he held that “the area in suit NO. M/37/2001 is 1140sqr metres, while the area claimed in suit No. BOHC/MG/CV/78/2015 is 1200.68sqr metres definitely the area in dispute in the two suit are not the same.
GROUND THREE: The learned judge of the trial Court erred in law, when he dismiss the notice of preliminary objection filed by the appellant and call for hearing of the suit on its merit, and make consequential ORDER that parties file a proper site plan of the area claimed by each.
GROUND FOUR: The learned judge of the trial Court erred in law, when he failed to make pronouncement on the issue of lis-pendens raised by the appellant at the trial Court.
After transmission of record of appeal to
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this Court, parties filed and exchanged briefs of argument.
BRIEFS OF ARGUMENT
The appellant filed his amended brief of argument which was deemed properly filed on 14th October 2020. The brief was settled by N. A CHIHIRUWAN his counsel.
Learned counsel formulated three issues for determination to wit:
1. Whether the parties and subject matter in suit No M/150/88, M/37/2001 and suit No BOHC/MG/CV/78/2015 are not one and the same
2. Whether Court judgment lawfully executed can be disturbed by way of a writ of summons
3. Whether the lower Court was right when it failed to make pronouncement on the issue of lis-pendens raised by the appellant at the lower Court.
On behalf of the 1st and 2nd Respondents, NANKHAM AYUBA DAMMO articulated two issues for determination as follows:
1. Whether the lower Court was not right when it dismissed the appellants preliminary objection holding that the suit No No M/150/88, M/37/2001 do not constitute Res Judicata to suit No. BOHC/MG/CV/78/2015.
2. Whether the lower Court was right when it failed to make pronouncement on the issue of Lis Pendens raised by the appellant at the lower Court.
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- U MSHELIA, Principal State Council Ministry of Justice Borno State on behalf of the third respondent identified a sole issue for determination thus:
WHETHER THE JUDGMENT IN SUIT NO. M/37/2001/ WHICH WAS LAWFULLY EXECUTED BY THE DEPUTY SHERIFF BORNO STATE HIGH COURT IS THE SAME WITH SUIT NO. BOHC/MG/CV/78/2015 THEREBY CATCHING UP WITH THE DOCTRINE/PRINCIPAL OF RES JUDICATA, AND IF THE ANSWER IS IN THE NEGATIVE WHETHER THE TRIAL COURT WAS RIGHT IN DISMISSING THE PRELIMINARY OBJECTION FILED BY THE APPELLANT.
APPELLANT’S BRIEF OF ARGUMENT
ISSUES FOR DETERMINATION
1. Whether the parties and subject matter in suit NO: M150/88, M/37/2001 and BOHC/MG/CV/78/15 are not one and the same (distilled from grounds 1 & 2 of the fourth amended notice of appeal).
2. Whether the Court judgment lawfully executed can be disturbed by way of a writ of summons (distilled from ground 3 of the fourth amended notice of appeal)
3. Whether the lower Court was right when it failed to make pronouncement on the issue of lis-pendens raised by the appellant at the lower Court (distilled from ground 4 of the fourth amended notice of appeal)<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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LEGAL ARGUMENT OF COUNSEL TO THE APPELLANT
ISSUE 1
“Whether the parties and subject matter in suit NO: M150/88, M/37/2001 and BOHC/MG/CV/78/15 are not one and the same (distilled from grounds 1 & 2 of the fourth amended notice of appeal).”
Learned counsel to the appellant submitted that the parties were one and the same, because they were all privies in estate to their predecessors and progenitor in tittle, and that satisfied one of the conditions for a successful plea of res-judicata as held in COLE vs JIBUNOH (2016) 4 NWLR (PT. 1503) P. 499 AT P. 539 paras (G-H).
On the second condition for a successful plea of res-judicata, he submitted that there was no land existing with 1200.68 square meters, because the judgment in suit No: M/150/88 defeated the title from which the land emanated. He submitted that the 1st and 2nd respondents have admitted in their statement of claim and statement on oath that the original allotee of the land was Alh. Ali Zingina and his brother, Alh. Ibrahim Zingina, which was a proof that the judgment in suit No: M/150/88 was against Alh. Ali Zingina and 3 Ors with Alh. Ibrahim Zingina the 3rd
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defendant in the suit.
He submitted that, there cannot be two competing interest in the same property at the same time because the deed of assignment between the 1st and 2nd respondents and their predecessors and progenitor in title had been encumbered by the judgments in suit No: M/150/88, and No: M/37/2001. He submitted that the principle of NEMO DAT QUOD NON HABET best described the situation of the 1st and 2nd respondent’s predecessors and progenitor in title. UME BROTHERS COMPANY LTD vs OSENI (2019) 12 NWLR part 1686 page 293 @ page 317 paras C-F. He finally submitted that, the pendency of appeal No: CA/J/24/05 barred any form of conveyance between the parties. OSAGIE vs OYEYINKA (1987) 3 NWLR part 59 page 18 paras A-D.
ISSUE 2
“Whether the Court judgment lawfully executed can be disturbed by way of a writ of summons” (distilled from ground 3 of the fourth amended notice of appeal).
Learned counsel to the appellant submitted that the issue that gave rise to suit No: BOHC/MG/CV/78/15 revolved around the interpretation of judgments and deed of assignment between the parties and their privies and the appropriate way of
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commencing such action was by an originating summons and not by a writ of summons. See UMEH BROTHERS SUPRA at page 313-314 paras G-B.
He further submitted that since there was no application for a stay of execution on any of the judgments, execution of the same could not be interrupted by any procedure. See OPARAUGO & ANOR vs OPARAUGO & ANOR (2007) LPELR 8181 @ page 19 paras D-F.
He urged the Court to resolve issue 2 in favor of the appellant, allow the appeal, set aside the ruling of the lower Court and dismiss suit No: BOHC/MG/CV/78/15 for being res-judicata and incompetent.
ISSUE 3
“Whether the lower Court was right when it failed to make pronouncement on the issue of lispendens raised by the appellant at the lower Court.” (distilled from ground 4 of the fourth amended notice of appeal)
Learned counsel to the appellant submitted that the failure of the lower Court to make pronouncement on the issue of lis-pendens raised by the appellant in suit No: BOHC/MG/CV/78/15 negated the principle of law that the Court was bound to make findings on all issues before it. See IKPEAZU vs OTTI & ORS (2016) LPELR 40055
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(SC) page 19, paras A-C. He submitted that the 1st and 2nd respondents ought to have purged themselves from obstructing the execution order levied on the property before being heard by the Court.
APPELLANTS REPLY TO 1st & 2ND RESPONDENTS BRIEF OF ARGUMENT
Learned counsel to the appellant submitted that the decision in ABUBAKAR vs B.O & AP LTD being a 2007 decision of the Supreme Court was an improvement on the decision in AFOLABI vs GOV. OGUN STATE, and that other authorities cited by counsel to the 1st and 2nd respondents supported the appellants argument that suit No: BOHC/MG/CV/78/2015 was res-judicata.
He submitted that the decision in COLE vs JIBUNOH was apt because of the vendor relationship between the parties and their privies in estate and that once a grant existed in a land, it could only be extinguished by a lawful revocation. See the case of TORONTO HOSPITAL NIG LTD vs UKPALA (2018) 5 NWLR (pt. 1613) page 426, page 445 paras E-F.
He referred the Court to exhibits A, C and reliefs A-D of the 1st and 2nd respondents claim and urged the Court not to be distracted by an area of land on a statutory right of occupancy that ceased
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to exist by virtue of exhibit A. He submitted that the statement in paragraph 20 (a) of the appellant affidavit evidence was not in any way countered by the respondent, and the general traverse in the affidavit was inadequate. He submitted that facts not denied are deemed admitted. AKANBI vs ALAO (1989) NWLR (pt. 108) 118. He humbly submitted that the turn around by the 2nd respondent, that the subject matter were not the same was an afterthought and should not be allowed by the Court.
He submitted that the pronouncement on the issue of re-judicata raised at the lower Court did not dispose the issue of lis-pendens nor was it subsumed, because execution was levied on the property and had not been reversed, and the 1st and 2nd respondents had been in forceful and illegal occupation of the property.
He urged the Court to hold that the 1st and 2nd respondents counsel had not shaken the position of the law in the case of IKPEAZU vs OTTI. He urged the Court to discountenance the cited authorities, and hold that the issue of lis-pendens was properly raised before the lower Court.
He submitted that all the authorities cited by counsel to the 1st and
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2nd respondents is in pari-material with the decision in UMEH BROTHERS CO. LTD vs OSENI, and further submitted that the issue in appeal bordered on interpretation, and no amount of oral evidence could change their contents. He urged the Court to allow the appeal, and set aside the ruling in suit No: BOHC/MG/CV/78/2015.
APPELLANT’S REPLY TO THE 3RD RESPONDENT’S BRIEF OF ARGUMENT
Counsel to the appellant submitted that the definition in COLE vs JIBUNOH was apt because of the vendor and purchaser relationship between the appellant and the 1st and 2nd respondents with their predecessors and progenitor in title as evidenced in the deed of assignment between them.
He submitted that the customary right of occupancy No: BO/14470 was ineffective because its issuance was not on a duly acquired land as a deemed right existed over the land to the appellant’s predecessor in title that had not been lawfully revoked, and that the grant to the 1st and 2nd respondents predecessor in title was defeated by the judgment in suit No: M/150/88. TORONTO HOSPITAL NIG LTD vs UKPALA (2018) 5 NWLR pt 1613 page 426, page 445 paras E-F.
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He submitted that the decision in D.T.T ENT NIG CO LTD vs BUSARI (supra) supported the appellants argument that the 3 suits were between the parties and their privies, and the judgments in suit No: M/150/88 & M/37/2001 not reversed by an appellate Court bound the parties in this appeal. He further submitted that the judgment in suit No: M/37/2001 between Alh. Grema Mohammed Bukar and Alh. Umaru Dankaka was determined in favor of Alh. Grema Mohammed Bukar and not Alh. Umaru Dankaka as erroneously held by counsel
Learned counsel to the appellant submitted that the appellant had satisfied all the conditions as stated in MOMOH vs ADEDOYIN (supra) and further submitted that the finality is not in the ruling that forms the basis of this appeal, but the judgment in suits No: M/150/88 & M/37/2001.
1ST AND 2ND RESPONDENTS BRIEF OF ARGUMENT
The 1st and 2nd respondents formulated one issue and adopted the 3rd issue formulated by the appellant as their issue number two.
LEGAL ARGUMENT OF COUNSEL TO THE 1ST AND 2ND RESPONDENTS
ISSUE NO: 1
“Whether the lower Court was not right when it dismissed the appellant’s preliminary objection holding
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that suit No: M/37/2001 and M/150/88 do not constitute res-judicata to suit No: BOHC/MG/CV/78/2015.”
Learned counsel to the 1st and 2nd respondents submitted that the conditions for a plea of res-judicata must co-exist for the plea to be successful. ABIOLA & SONS B. CO. LTD vs 7 UP BOTLLING CO. LTD (2012) 15 NWLR pt. 1322, page 184 @196, 197, 200, & 201.
He submitted that the evidence on record did not establish that, the 1st and 2nd respondents are privies to either of the parties in suit No: M/150/88 or in M/37/2001.
He submitted that the subject matter were not the same, as the 1st and 2nd respondent’s title relates to a land measuring 1200.68 square meters and not a land measuring 1140 square meters affirmed to the appellant in suit No: M/37/2001. He urged the Court to dismiss the appellant’s Preliminary objection and resolve issue one against the appellant.
ISSUE 2
“Whether the lower Court was right when it failed to make pronouncement on the issue of lis-pendens raised by the appellant at the lower Court”.
Learned counsel contended had the primary duty of the Court to make pronouncement
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on all issues properly raised by evidence and pleadings before it, but where the issue determined and pronounced by the Court subsumed an issue, the Court was not bound to make pronouncement on the issue subsumed. ADEGBUYI vs A.P.C (2015) 2 NWLR pt. 1441 page 1 @ 21.
A clear appreciation of the affidavit evidence of the parties according to him, would show that the issue properly raised before the Court is whether the suit in No: BOHC/MG/CV/78/2015 is caught up by the principle of res-judicata by the judgment in suit No: M/37/2001 & M/150/88. The issue of lis-pendens was only raised by the appellant in address supporting his preliminary objection.
He submitted that the issue of lis-pendens was subsumed by the pronouncement on res-judicata. He further submitted that the conditions for lis-pendens to apply had not been met by the appellant because the lands are not the same, as they have different sizes and are covered by different documents of tittle. He urged the Court to hold so.
He submitted that the land measuring 1200.68 square meters which was the subject matter of conveyance between Alh. Umaru Dankaka and the 1st and 2nd respondents
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was never the subject of the suit in suit No: M/150/88 & No: M/37/2001, and neither was it the subject of any suit at the time of conveyance, and as such not covered by the principle of lis-pendens. He urged the Court to hold so. Where the Court was of the opinion that the lower Court did not make pronouncement on the issue of lis-pendens, the appellate Court had the same power to evaluate the evidence on record and make findings on the issue. OGUNSINA vs A.P.P (supra) @ p. 744. He urged the Court to so hold that the lower Court was right when it called on the parties to lead evidence in proof of their claims.
1st & 2nd RESPONDENTS RESPONSE TO THE APPELLANT’S SUBMISSION
Learned counsel to the 1st and 2nd respondent submitted that case law authorities laid it clear that where there was dispute as to facts, recourse to use of originating summons would be inappropriate. INAKOJU vs ADELEKE (2007) 4 NWLR pt. 1025 page 427 @ 571. He submitted that the reliefs claimed by the 1st and 2nd respondents was for the determination as to who is entitled to the land measuring 1200.68 square meters, and based on the evidence on record, the affidavits were
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hostile to each other and required a proof by evidence hence, the use of writ of summons by the 1st and 2nd respondent is appropriate. He urged the Court to discountenance the erroneous argument that the land covered by a statutory right of occupancy No: BO/14700 ceases to exist by virtue of the judgment in suit No: M/150/88, as unsupported by evidence.
3RD RESPONDENT’S BRIEF OF ARGUMENT
ISSUES FOR DETERMINATION
“Whether the judgment in suit No: M/37/2001 which was awfully executed by the deputy sheriff Borno State High Court is the same with suit No:BOHC/MG/CV/78/2015 thereby catching up with the principle/doctrine of res-judicata, and if the answer is in the negative. Whether the trial Court was right in dismissing the preliminary objection filled by the appellant.”
The doctrine of res-judicata it was submitted, barred parties or their privies from relitigating a matter determined by a Court of competent jurisdiction that had not been reversed on appeal. D.T.T ENT NIG LTD vs BUSARI (2011) 8 NWLR (pt.12490) 387 @ 391 paras B-E.
The 3rd respondent’s counsel submitted that suit No: M/37/2001 in which writ of
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possession was levied upon in satisfaction of the judgment of Borno State High Court was carried out in accordance with the provision of the law and had no nexus with suit No: BOHC/MG/CV/78/2015, as such the doctrine of res-judicata does not apply.
Learned counsel submitted that there were 3 suits with different parties, bearing 3 different suit numbers, with different sizes. Suit No: M/137/88 was between Yamagaram Hajja Hajara and Alh. Ali Zingina and was decided in favor of Yamagaram Hajja Hajara, the second with suit No: M/37/2001 which was between Alh. Grema Mohammed Bukar and Alh. Umaru Dankaka and was determined in favor of Alh. Umaru Dankaka.
He submitted that the conditions for a successful plea of res-judicata as laid down in MOMOH vs ADEDOYIN (2018) 2 NWLR pt 633, page 345 @ 375-376, had not been met. He further submitted that, the ruling appealed against was not a final decision.
He urged the Court to resolve the lone issue in favor of the 3rd respondent and hold that the suit is not res-judicata, dismiss the appeal as lacking in merit, and allow the parties to proceed with the hearing of the matter at the trial Court to be
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determined by its merit.
RESOLUTION OF ISSUES
I have deeply considered the issues formulated by learned counsel on all sides. I am of the firm view that the sole issue as formulated by learned counsel for the 3rd Respondent is wide and apt enough for the just determination of this appeal. I therefore adopt it in this judgment.
SOLE ISSUE
WHETHER THE JUDGMENT IN SUIT NO. M/37/2001/ WHICH WAS LAWFULLY EXECUTED BY THE DEPUTY SHERIFF BORNO STATE HIGH COURT IS THE SAME WITH SUIT NO. BOHC/MG/CV/78/2015 THEREBY CATCHING UP WITH THE DOCTRINE/PRINCIPLE OF RES JUDICATA, AND IF THE ANSWER IS IN THE NEGATIVE WHETHER THE TRIAL COURT WAS RIGHT IN DISMISSING THE PRELIMINARY OBJECTION FILED BY THE APPELLANT.
This issue raises fundamental question as to what is the doctrine of RES JUDICATA and what it entails.
Where a Court of competent jurisdiction has settled a matter, in a final decision, between the parties, neither a party nor his privy may relitigate that issue again by bringing a fresh action. The matter is RES JUDICATA. See OSUNRINDE & ORS VS AJAMOGUN & ORS (1992) 6 NWLR PART 246 P. 156.
The condition for its applicability is
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well set out in a line of judicial authorities. See OGBOLOSINGHA & ANOR VS BAYELSA STATE INEC & ORS (2015) 6NWLR (PT. 1455) pg 311.
The conditions are:
(i) That the parties or their privies are the same in both the previous and present proceeding.
(ii) The claim or issue in both actions are the same
(iii) The res or the subject matter of litigation in the two cases is the same
(iv) That the decision relied upon to support the plea of estoppels per rem judicatam is valid, subsisting and final
(v) That the Court that gave the previous decision relied upon to sustain the plea is a Court of competent jurisdiction
All the above conditions must be fully met before the plea of res judicatam can stand. See UDO VS OBOT (1989) I.S.C. (PT 1) 64.
I shall resolve this issue in the light of the above.
The land in dispute is the parcel of land covered by Statutory Certificate of Occupancy No. BO/14700 measuring 1200.68 square metres lying and situate at Bulumkutu Abuja Area along Maiduguri Kano Road.
The said land is more particularly described in paragraph 8 of the claimant statement of claim thus:
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The claimants avers that upon enquiry at the Borno State Ministry of Land and Survey, Borno State, they found out that the land in question was land originally granted to one Alhaji Ali Zingina by the Maiduguri Metropolitan Council vide Customary Certificate of Occupancy No. 009711 dated 27th day of January 1987 covering an area of 1200.68 square meters and registered as Vol. XXIII page of register with file No. MMC/LAND/949 for a term of 99 years commencing from 27th day of January 1987 in accordance with Land Tenure (Native Authority-Control of Settlement Regulation) together with a site plan. A certificate true copy of the customary certificate of occupancy No. 009711 together with its site plan is hereby pleaded and will be relied upon at the trial of this suit.
A writ of possession was to be executed against a piece of land covered by Customary Right of Occupancy No. 011998 issued by Maiduguri Metropolitan Council measuring an area of 200ft x 100ft or 1140sq meters lying and situate at Bulumkutu Abuja along Maiduguri to Kano Road in satisfaction of judgment of Borno State High Court No. 2 Maiduguri in suit No. M/37/2001. As a result of the writ of possession, the
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claimants land was attached.
The 1st Defendant filed a notice of preliminary objection to the claim of the claimants. Contending that the present suit sought for a declaration of title to a portion of 1200.68 square metres out of the same land which judgment was obtained in 1991 in favour of the predecessor in title and progenitor of the 1st defendant/applicant against the claimant/respondents (Alhaji Ali Zangina) who is the predecessor in title of the claimants/respondent in suit No. BOHC/MG/CV/78/15.
My lords, on a defence of res judicata, the defendant must show that the res or subject matter of litigation in the two cases are the same. I have carefully combed through the record of proceedings. No survey plan or plan of the land showing the extent of the land covered by customary Right of Occupancy No. 011998 issued by Maiduguri Metropolitan Council measuring 1140sq metres as compared to the claimants land covered by Customary Certificate of Occupancy No. 009711 dated 27/1/87 covering an area of 1,200.68 square metres and registered as Vol. XXIII page of register with file No. MMC/LAND/949.
The plans showing the relative positions of the said
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land are not yet before the Court.
In land matters, the identity of the land in dispute must be proved with certainty. The Court cannot speculate on the relative position of the two portion of land in question. Do the boundaries of the two portions of land overlap? Or is the land subject matter of the claims a subject of the land covered by Customary Right of Occupancy No. 011998?
The objector is the person asserting and he is the one to prove the said boundaries. In a situation like this he is in the position of the plaintiff in an action for declaration of title to land. He must prove the boundaries.
The objector/appellant is contending that the land in dispute is a portion of the same land which was subject matter of the judgment obtained in 1997. He who asserts must prove. See OKOYE & ORS VS NWANKWO (2014) 15 NWLR PT 1429. P. 93.
As things are presently, the objection of the appellant is premature because it dwells in the camp of speculation. It is necessary that a composite plan be filed by the parties before the defence of res judicata will avail the appellant. See ELABANJO & ANOR VS JOSEPH DARLINGTON (1970)
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ANLR 42; AYINDE & ORS VS OLANIYAN & ORS (2016) LPELR – 41469 (C.A).
This preliminary objection can still be taken up during the address stage after the Court must have heard the parties and their respective witnesses and all relevant documents have come in as exhibits.
The lower Court was in my respectful view right to have dismissed the objection. The objection is premature.
His lordship rightly ordered the parties to file proper site plan and ordered the matter adjourned for hearing.
This decision cannot be faulted. I resolve this sole issue in favour of the respondents. I affirm the order of the lower Court dismissing the preliminary objection and of the order that parties are to file composite plan of the land in dispute to enable the lower Court properly determine the matter.
This appeal lacks merit in the circumstance. It is accordingly dismissed, parties are to bear their respective cost.
SUIT NO. BOCH/NIG/CV/78/2015 MAJIDA NIG. LTD & ANOR VS ALHAJI GREMA MOHAMMED BUKAR & 3 ORS is hereby remitted back to the lower Court for continuation of hearing.
JUMMAI HANNATU SANKEY, J.C.A.: I
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had the opportunity to read in advance a draft copy of the lead Judgment of my learned brother, Tunde O. Awotoye, J.C.A.
I agree with and adopt as mine the comprehensive resolution of the sole issue revolving around the plea of res judicata considered therein.
I also dismiss the Appeal. I abide by the Orders made in the lead Judgment, including the Order as to costs.
EBIOWEI TOBI, J.C.A.: My learned brother TUNDE O. AWOTOYE, JCA has afforded me the opportunity of reading in draft the lead judgment just delivered. I agree with the reasoning and conclusions reached therein while also dismissing the appeal for lacking in merit. I abide by the consequential order made by my learned brother.
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Appearances:
A. Chihirvwam, Esq. For Appellant(s)
Saleh, Esq.- for 1st and 2nd Respondent,
K. S Lawan HAG & CJ Borno (B.N Umar Ag. DPP & S. U Mshelia PSC (Borno) – for 3rd Respondent. For Respondent(s)
