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GONI v. TAHIR (2022)

GONI v. TAHIR

(2022)LCN/16745(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Monday, May 30, 2022

CA/G/190/2017

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

MOHAMMED LAMINU GONI APPELANT(S)

And

UMAR TAHIR RESPONDENT(S)

 

RATIO

THE PRINCIPLES OF RES JUDICATA AND ITS APPLICATION IN THE LEGAL PARLANCE

What is the principles of res-judicata and its application in the legal parlance? In the case of MAKUN & ORS VS FEDERAL UNIVERSITY OF TECHNOLOGY, MINNA & ORS(2011) 7 MJSC (PT 3) P. 140 AT 171, the Apex Court had this to say:
“Estoppel per rem judicatam or estoppels of record arises where all issue of fact has been judicially determined in a final manner between the parties or their privies by a Court of Tribunal having jurisdiction in the matter and the same issues comes directly in question in subsequent proceedings between the parties and their privies. It effectively precludes a party to an action, his agents or privies from disputing as against the other party in any subsequent suit, matters which had been adjudicated upon previously by a Court of competent jurisdiction between him and his adversary involving the same issues.” ​For a plea of estoppels per rem judicatam to succeed, a party relying on it must establish the following facts:
a. That the parties or their privies involved in both the previous and proceedings in which the plea is raised are the same
b. That the claim or issue in dispute in both proceedings are the same
c. That the res or the subject matter of the litigation in the two cases is the same;
d. That the decision relied upon to support the plea is valid, subsisting and final;
e. That the Court that gave the previous decision relied upon to sustain the plea was a Court of competent jurisdiction
The burden is on the party who sets up the defence of estoppels per rem judicatam to establish the pre-conditions conclusively. BALOGUN VS ODE (2007) DAGACI OF DERE V. DAGACI OF EBWA​(2006) 7 NWLR (PT 979) 382).
PER BDLIYA, J.C.A.

WHETHER OR NOT A SUCCESSFUL PLEA OF ESTOPPELS PER REM JUDICATAM CONSTITUTES A BAR TO ANY FRESH ACTION BETWEEN PARTIES

This Court in LIYAFA VS ZUBAIRU (2015) 9 NWLR (PT 1465) P 557 AT 578, enunciated that, a successful plea of estoppels per rem judicatam constitutes a bar to any fresh action as between the parties or their privies. Where a plea of res judicata has been established, the jurisdiction of the Court would be ousted. Where the plea is raised, the Court in determining whether the issues, the subject matter of the two cases and the parties are same is to study the pleadings or affidavit of the proceedings and the judgment in the previous proceeding. The Court may also examine the reasons for the judgment and other relevant facts to discern what was in issue in the previous case. It is a question of fact whether the parties and their privies, the fact in issue and the subject matter of the claim are the same in both the previous and the present case. See BALOGUN V. ODE (2007) 4 NWLR (PT 1023) 1; DAGACI OF DERE V. DAGACI OF EBWA (2006) 7 NWLR (PT 249) 501. PER BDLIYA, J.C.A.

CONDITIONS TO BE SATISFIED BEFORE A PLEA OF RES JUDICATA OR ESTOPPELS PER REM JUDICATA WILL BE UPHELD

Before a plea of res judicata or estoppels per rem judicata will be upheld, the following conditions must be satisfied, namely:
1. The parties (or their privies) must be the same in the present case as well as in the previous case;
2. The issues and subject matter in both cases must be the same
3. The decision in the previous suit must have been given by act of competent jurisdiction; and
4. The previous decision must have finally decided the issues between the parties.
See AYUYA VS YONRIN (2011) ALL FWLR (PT. 583) PG. 1859. The law is trite, parties include their privies against whom judgment had been given in a previous suit are estopped from re-litigating the subjects matter of such suit in a subsequent suit. This principle of law is commonly known in legal parlance as the principle of “res judicata”. The rule is a limitation of estoppels per rem judicatum to parties and privies and it is simply an affirmation of the maxim “res inter alios acta alteri nocere non potest”. See the cases of AJIBOYE VS ISHOLA (2006) 13 NWLR PT. 998 P. 628 AND OKUKUJE VS AKWIDO (2001) ALL FWLR PT. 39 P. 1487, (2001) 3 NWLR PT. 700 P. 261. For the purpose of estoppels per rem judicatam, party means not only a person named as such but also one who is cognizant of the proceedings and of the fact that party thereto is professing to act in his interest allows his battle to be fought by that party intending to take the benefit of the championship in the success. It therefore follows that if an individual was content to stand by while his battle was fought and concluded by another with same interest, he must be and is indeed, bound by the result and should not be allowed to re-open the case. PER BDLIYA, J.C.A.

THE TERM “PARTIES” FOR THE PURPOSE OF ESTOPPELS PER REM JUDICATAM

As to the parties in the dispute in suit No. BOHC/MG/CV/139/2011 and BOHC/MG/CV/54/2014, I refer to the principles of law propounded in the case of SKYBLIND (NIG) LTD VS NEWLIFE COOPERATIVE SOCIETY & ORS (2020) NWLR PT. 1730 PAGE 541 AT 567, Wherein, it was held that:
“The term “parties” for the purpose of estoppels per rem judicatam includes not only those named on the record but also those represented and those who had direct interest in the subject matter of dispute and had an opportunity to attend and protect their interest in the processing… The principle that for the defence of res judicata to succeed there must be sameness of parties does not mean that all the parties in the previous suit must be made parties in the later suit. It is sufficient where there are several parties in the previous suit, that those of the parties who are necessary parties to the issues in the previous suit are the same as in the latter suit… in the circumstance, the parties in the two suits are the same within the definition of “parties” for the purpose of res judicata”
PER BDLIYA, J.C.A.

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Borno State High Court of Justice, (hereinafter referred to as the lower Court), in suit No: BOHC/MG/CV/54/2014, delivered on the 21st day of November, 2016, by Hon. Justice Hadiza Ali Jos. The events which culminated to the institution of the suit before the lower Court, are simple and straightforward. The land in dispute was originally owned by one late Abudulkadir Tele, who cleared the land which was a forest. He was in ownership of the said land until he sold it to Abdulkadir Ngare. The land was thereafter sold to Mallam Gonimi by Abdulkadir Ngare, who took physical possession of the it.

​Sometime in 2006, Baba Umar Mustapha sued Mallam Gonimi before the lower Court in suit No. BHOC/MG/CV/13 claiming for declaration of title to the said land. The lower Court entered judgment in favour of Mallam Gonimi on the 10th day of January 2011. Mallam Gonimi, thereafter, sold the land to the appellant, Mohammed Laminu Goni, who took possession of same. The appellant (Mallam Mohammed Laminu Goni), later discovered his parcel of land was trespassed into by Umar Tahir, hence the institution of suit No. BOHC/MG/CV/54/2014, before the lower Court, claiming as follows:
1. A declaration that the claimant is entitled to the land measuring 199ft by 197ft situate as jiddari Polo Maisandari liberty Ward Maiduguri.
2. An order of perpetual injunction restraining the defendant, his agent privies workmen or heirs or howsoever called from continued trespassing on the land in dispute.
3. An order of this Honourable Court directing the demolition of the structure that might have been constructed on the land by the defendant.
4. Costs of the suit.

​Before the commencement of the proceedings in suit No. BOHC/MG/CV/54/2014, the respondent filed a notice of Preliminary Objection to the competence of the aforesaid suit thus:
“Take Notice that at or before the hearing of suit No. BOHC/MG/CV/54/2014 defendant/applicant shall raise a preliminary objection to the competence of the suit on ground that the suit is res judicata.
Also note that at the hearing of the preliminary objection, the defendant/applicant shall rely on the affidavit deposed in support of the preliminary objection and the exhibits attached thereto.”

​The grounds upon which the preliminary objection was predicated are as follows:
1. This Honourable Court had in the year 2012 fully and conclusively determined the dispute on the title in the land subject matter of this suit in suit No. BOHC/MG/CV/139/2011 between Baba Ibrahim Musa (the defendant/applicant herein) versus Alhaji Bukar Gonimi the predecessor in title and progenitor of the claimant/respondent.
2. The claimant/respondent (Mohammed Laminu Goni) is privy to the judgment in suit No.: BOHC/MG/CV/139/2011 in which his predecessor in title and progenitor Alhaji Bukar Gonimi was defeated by the defendant/applicant (Baba Ibrahim Musa)
3. The subject matter of this suit as per the claimant/respondent claim is situate at Jiddari Polo, Maisandari Liberty Word, Maiduguri is one and the same as the land subject matter as claimed by Alhaji Bukar Gonimi (the claimant/respondent’s predecessor and progenitor in title) in suit No: BOHC/MG/CV/139/2011.
4. In suit no BOHC/MG/CV/139/2011 defendant/applicant (Baba Ibrahim Musa) was victorious over Alhaji Bukar Gonimi the predecessor in title and progenitor of Mohammed Laminu Goni (the claimant/respondent)
5. The claimant/respondent’s predecessor in title and progenitor (Alhaji Bukar Gonimi) appealed the said judgment of this Honourable Court to Court appeal Jos in appeal No. CA/J/253/13 wherein the Court of appeal Jos dismissed his appeal on the 26th May 2016.
6. The judgment of this Honourable Court in suit No BOHC/MG/CV/139/2011 which was in respect of one and the same land as claimed by both Mohammed Laminu Goni (claimant/respondent) and his predecessor in title (Alhaji Bukar Gonimi was final and still valid having same been upheld by the Court of Appeal.

The reliefs sought are thus:
1. An order of this Honourable Court dismissing suit No. BOHC/MG/CV/54/2014 the subject matter of which being res-judicata
2. A declaration that if the claimant/respondent feels that his interest and/or title is affected by the decision of this Honourable Court in suit No. BOHC/MG/CV/139/2011 he should seek for leave to appeal against such decision as an interested party.
3. And for such further order or orders as this honourable Court may deem fit to make in the circumstances.

The preliminary objection is supported by a 13-paragraphed affidavit. See pages 70-73 of the printed record of appeal. The respondent filed a 7-paragraphed counter affidavit in support of his defence to the preliminary objection. See pages 172–174 of the printed record of appeal. A 7-paragraphed Reply to the Counter Affidavit was filed by the appellant. See pages 183 to 184 of the printed record of appeal. The relevant and material depositions contained in the aforesaid Affidavits will be resorted to, where desirable, in this judgment.

​The appellant’s brief of argument was filed on the 19th of September, 2018. Two (2) issues for determination of the appeal have been formulated on page 4 of the brief of argument, which are thus:
1. Whether having regard to the affidavit evidence, pleadings and the judgments of the lower Court in suit No. M/142/2006 and suit No BOHC/MG/CV/139/2011 is suit No. BOHC/MG/CV/54/2014 caught up by the principle of res-judicata?
2. Whether having regard to the affidavit evidence before the lower Court, suit no. BOHC/MG/CV/139/2011; has not misled the lower Court in pronouncing and dismissing the Appellant’s Suit No. BOHC/MG/CV/54/2014 by changing the name of the defendant in the defendant’s processes to read the defendant in suit No. BOHC/MG/CV/139/2011 occasioning fraud against the appellant which issue the trial Judge failed to consider in her ruling.

​The respondent filed brief of argument on the 4th of February 2022, with leave of Court, which was deemed properly filed on the 9th of same. Three (3) issues for determination of the appeal have been articulated on page 4, thereof: they are thus:
1. Whether having regard to the affidavit evidence, pleadings, the judgment of the lower trial Court in suits No. M/142/2006 and suit No. BOHC/MG/CV/137/2011 is suit no. BOHC/MG/CV/54/2014 not rendered incompetent by reason of the doctrine of res-judicata?.
2. Whether having regard to the affidavit evidence, before the lower Court suit No: BOHC/MG/CV/139/2011 has not misled the Court in pronouncing and dismissing the appellant’s suit No. BOHC/MG/CV/54/2014 by changing the name of the defendant/respondent in the defendant processes to read the name of the defendant in suit No. BOHC/MG/CV/139/2011 occasioning fraud against the appellant which issue the trial Judge fail to consider in her ruling.
3. Whether in the light of suit no. BOHC/MG/CV/139/2011 and appeal no. CA/1/253/2013; suit no. BOHC/MG/CV/54/2014 does not amount to inviting the lower Court to deliver conflicting decision? (Distilled from the Respondent’s notice)

The two sets of issues for the determination of the appeal, contained in the appellant’s and respondent’s briefs of argument are intertwined, interwoven and dovetailing such that, one cannot be resolved without delving into the other. An appellate Court can reformulate issues for determination in an appeal, provided such issues are predicated on the grounds of appeal contained in the notice of appeal filed by the appellant or the cross-appellant as the case may be. The purpose of reframing issue or issues is to lead to a more judicious and proper determination of an appeal. In other words, the purpose is to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity. See OKORO VS STATE (1988) 5 NWLR (PT 94) 255; LATUNDE VS LAJINFIN (1989) 3 NWLR (PT 108) 177; AWOJUGBAGBE LIGHT INDUSTRIES LTD. VS CHINUKWE (1995) 5 NWLR (PT 390) 379; OGUNBIYI VS ISHOLA (1996) 6 NWLR (PT 452) 12.

Therefore, the issues for determination of the appeal contained in the appellant’s and respondent’s brief’s of argument are hereunder rearticulated into a sole issue by adopting issue 1 in the respondent’s brief of argument to be resolved in the determination of the appeal, which is thus:
“Whether, having regard to the Affidavit evidence, the pleadings and the judgments of the lower Court in suits Nos. BOHC/MG/CV/137/2011, and M/142/2006, suit No BOHC/MG/CV/54/2014 is rendered incompetent by reason of the doctrine of res judicata?”

After considering the affidavit, counter affidavit, the reply affidavit and the applicable principles of law, the learned Judge of the lower Court, arrived at a decision granting the reliefs sought by the respondent as recorded on pages 209 to 2010 of the printed record of appeal.
“I still hold that the judgment of High Court No. 7 in Suit No. M/142/2006 between BABA UMAR MUSTAPHA VS MALLAM GONIMI delivered by Honourable Justice U. B. Bwala on the 10th January, 2011 has nothing in common before this Court relating to the present and the previous Suit No. BOHC/MG/CV/54/2014 between MOHAMMED LAMINU GONI and UMAR TAHIR and suit No. BOHC/MG/CV/139/2011 between BABA IBRAHIM MUSA and ALHAJI BUKAR GONIMI which in both suit parties and the subject matter are the same.
It is also the view of this Court that the present claimant MOHAMMED LAMINU GONI is privy to the previous action hence he was bound by it, meaning the plea of res-judicata succeed as in the case of EKENNIA V. NKAPAKARA (1997) 53 SCNJ 70 at 83.
Suit No. BOHC/MG/CV/54/2014 between MOHAMMED LAMINU GONI and UMAR TAHIR is hereby dismissed.”

Was the learned Judge of the lower Court right when he arrived at the decision supra?

​A. R. Abdulsalam Esq, of learned counsel who settled the appellant’s brief of argument, made extensive submissions on pages 4 to 11 thereof, in paragraphs 5.01 to 6.10, citing and relying on principles of law enunciated in a litany of decisions of the Superior Courts to reinforce his contention that suit no BOHC/MG/CV/54/2014 is not caught up by doctrine of res-judicata, because the required conditions for its applicability have not been satisfied before the lower Court. That the learned Judge of the lower Court erred in law when he found and held that the said suit, is incompetent by reason of res-judicata. The principles of law enunciated in the case of AFOLABI VS GOVERNMENT OSUN STATE (2003) FWLR PT 175 p 411 and NTUKS VS NIGERIA PORTS AUTHORITY (2007) ALL FWLR PT 387 P 809 amongst others, were relied on to buttress the adumbration supra.

​Learned counsel concluded his submission on pages 11 to 12 paragraphs 7.01 to 7.02 of the brief of argument, as follows:
“7.01 The appellant urges my lords to allow the appeal and set aside the judgment/ruling of the lower Court delivered on the 21st November 2016 Coram Justice Hadiza Ali Jos with an order that the lower Court has jurisdiction to entertain and determine suit No BOHC/MG/CV/54/2014 as it has not being res-judicata on the following grounds
1. The present suit No. BOHC/MG/CV/54/2014 between Mohammed Laminu Goni vs Mar Tahir is not the same with the previous suit No BOHC/MG/CV/139/2011 between Baba Ibrahim Musa Vs. Alhaja Bukar Goni.
2. That findings of the trial Court with the affirmation of this Honourable Court on sitting on appeal in Suit no. CA/J/253/13 that suit no BOHC/MG/CV/54/2014 was predicated stands and binding on the parties and the Court.
3. The land in dispute measures 199ft by 197ft lying and situate at Jiddari Polo Maisandari Ward Maiduguri is the same land in Suit No. M/14/2006 upon which suit No. BOHC/MG/CV/54/2014 was predicated stands and binding on the parties and the Court.
4. The conditions for the plea of res-judicata must co-exit, the conditions in this suit/appeal are not co-existing, thus the lower Court erred in law in upholding the plea of res-judicata.
5. The lower Court failed to consider the issue of fraud raised by the appellant that the respondent added his names to bear Baba Ibrahim Musa in their Court processes i.e statement of defence, notice of preliminary objection, reply to the statement of defence etc without the leave of Court hence misleading both the Court and the parties culminating to fraud.
6. The issue of fraud when raised is like issue of jurisdiction thus must be determined.
7.02 To set aside the ruling of the lower Court in Suit No. BOHC/MG/CV/54/2014 and order trial of the substantive suit.”

For the respondent, J. T. Gunda Esq, of learned counsel, made elaborate submissions on pages 4 to 11 of the brief of argument, relying on decisions of the Apex Court and this Court, to buttress his contention that suit no. BOHC/MG/CV/54/2014, is incompetent under the doctrine of res-judicata as found and held by learned Judge of the lower Court, which has been supported by a plethora of decisions referred to by learned counsel. Concluding on page 11 of the brief of argument learned counsel did urge thus:
“On the whole, we urge Your Lordships to find that, the decision appealed against is not faulty in whatever manner, dismiss appeal with substantial cost and further affirm the decision of the trial lower Court.”

​In this Reply brief, A. I Bello Esq, of learned counsel to the appellant, did submit on pages 2 to 5 thereof that, suit no BOHC/MG/CV/54/2014 can not be an abuse of Court process because same was predicated on suit No. M/14/2006, not suit No. BOHC/MG/CV/139/2011 as erroneously adumbrated by learned counsel to the respondent. That the subject matter in the two (2) suits are different, so also the parties. This Court has been urged to discountenance the submissions, made by the respondent’s counsel and to instead rely on the appellant’s contention and allow the appeal.

The learned Judge of the lower Court upheld the preliminary objection to the competence of suit no. BOHC/MG/CV/54/2014 relying on the doctrine/principles of res-judicata. What is the principles of res-judicata and its application in the legal parlance? In the case of MAKUN & ORS VS FEDERAL UNIVERSITY OF TECHNOLOGY, MINNA & ORS(2011) 7 MJSC (PT 3) P. 140 AT 171, the Apex Court had this to say:
“Estoppel per rem judicatam or estoppels of record arises where all issue of fact has been judicially determined in a final manner between the parties or their privies by a Court of Tribunal having jurisdiction in the matter and the same issues comes directly in question in subsequent proceedings between the parties and their privies. It effectively precludes a party to an action, his agents or privies from disputing as against the other party in any subsequent suit, matters which had been adjudicated upon previously by a Court of competent jurisdiction between him and his adversary involving the same issues.” ​For a plea of estoppels per rem judicatam to succeed, a party relying on it must establish the following facts:
a. That the parties or their privies involved in both the previous and proceedings in which the plea is raised are the same
b. That the claim or issue in dispute in both proceedings are the same
c. That the res or the subject matter of the litigation in the two cases is the same;
d. That the decision relied upon to support the plea is valid, subsisting and final;
e. That the Court that gave the previous decision relied upon to sustain the plea was a Court of competent jurisdiction
The burden is on the party who sets up the defence of estoppels per rem judicatam to establish the pre-conditions conclusively. BALOGUN VS ODE (2007) DAGACI OF DERE V. DAGACI OF EBWA​(2006) 7 NWLR (PT 979) 382).

This Court in LIYAFA VS ZUBAIRU (2015) 9 NWLR (PT 1465) P 557 AT 578, enunciated that, a successful plea of estoppels per rem judicatam constitutes a bar to any fresh action as between the parties or their privies. Where a plea of res judicata has been established, the jurisdiction of the Court would be ousted. Where the plea is raised, the Court in determining whether the issues, the subject matter of the two cases and the parties are same is to study the pleadings or affidavit of the proceedings and the judgment in the previous proceeding. The Court may also examine the reasons for the judgment and other relevant facts to discern what was in issue in the previous case. It is a question of fact whether the parties and their privies, the fact in issue and the subject matter of the claim are the same in both the previous and the present case. See BALOGUN V. ODE (2007) 4 NWLR (PT 1023) 1; DAGACI OF DERE V. DAGACI OF EBWA (2006) 7 NWLR (PT 249) 501.

Before a plea of res judicata or estoppels per rem judicata will be upheld, the following conditions must be satisfied, namely:
1. The parties (or their privies) must be the same in the present case as well as in the previous case;
2. The issues and subject matter in both cases must be the same
3. The decision in the previous suit must have been given by act of competent jurisdiction; and
4. The previous decision must have finally decided the issues between the parties.
See AYUYA VS YONRIN (2011) ALL FWLR (PT. 583) PG. 1859. The law is trite, parties include their privies against whom judgment had been given in a previous suit are estopped from re-litigating the subjects matter of such suit in a subsequent suit. This principle of law is commonly known in legal parlance as the principle of “res judicata”. The rule is a limitation of estoppels per rem judicatum to parties and privies and it is simply an affirmation of the maxim “res inter alios acta alteri nocere non potest”. See the cases of AJIBOYE VS ISHOLA (2006) 13 NWLR PT. 998 P. 628 AND OKUKUJE VS AKWIDO (2001) ALL FWLR PT. 39 P. 1487, (2001) 3 NWLR PT. 700 P. 261. For the purpose of estoppels per rem judicatam, party means not only a person named as such but also one who is cognizant of the proceedings and of the fact that party thereto is professing to act in his interest allows his battle to be fought by that party intending to take the benefit of the championship in the success. It therefore follows that if an individual was content to stand by while his battle was fought and concluded by another with same interest, he must be and is indeed, bound by the result and should not be allowed to re-open the case.

As enunciated in the cases of BALOGUN VS ODE (2007) 4 NWLR PT 1023 P. 1 and Dagaci of Dere vs Dagaci of Ebwa (2006) 7 NWLR pt. 249 P 501, where a plea of res judicata is raised in a Court of law, determining the applicability of res judicata, is to consider the issues in dispute, the parties; the pleadings/affidavits and the reasoning in the proceedings in the previous case and the extant one.

I think, it is pertinent, at this juncture, to consider the depositions contained in the affidavit, the Counter-Affidavit, the Reply Affidavit and the reasoning of the lower Court, in arriving at the decision in upholding the preliminary objection to the competency in suit no. BOHC/MG/CV/54/2014. Paragraphs 4, 5, 6, 7, 8, 9, 10, and 11 of the Affidavit filed in by the appellant. The depositions in these paragraphs are as follows:
4. That the claimant/respondent sued the defendant/applicant before this Honourable Court in suit No. BOHC/MG/CV/54/2014 where he wrongly referred to the defendant/applicant as Umar Tahir instead of his actual name which is Baba Ibrahim Musa of which facts the defendant/applicant in both his conditional appearance to the suit and his statement of defence filed on 30th December, 2014 and 7th April 2015 categorically made it known to the claimant/respondent. Copies of the conditional appearance and statement of defence are hereto annexed and marked as Exhibits BIM1 & BIM2
5. That the claimant/respondent herein seeks declaration of title in respect of a land of which title was litigated in suit No. BOHC/MG/CV/139/11 between Baba Ibrahim Musa versus Alhaji Bukar Gonimi through whom the claimant/respondent as per his amended statement of claim in suit No. BOHC/MG/CV/54/2014
6. That on the 13th March 2013 the claimant/respondent’s predecessor in title and progenitor and host of same witnesses gave evidence before this Honourable Court in suit No. BOHC/MG/CV/54/2014 over the disputing land.
7. that on the 25th day of June 2013 this Honourable Court after hearing witnesses delivered its final and conclusive judgment in suit No. BOHC/MG/CV/139/2011 between Baba Ibrahim Musa (defendant/applicant) versus Alhaji Bukar Gonimi (the predecessor in title and progenitor of Mohammed Laminu Goni the Claimant/Respondent) wherein defendant/applicant (Baba Ibrahim Musa) was victorious over Alhaji Bukar Gonimi the predecessor in title and progenitor of Mohammed Laminu Goni (the claimant/respondent).
8. That pursuant to paragraphs 5, 6 and 7 as deposed to above, copies of the claimant/respondent’s amended statement of claim in suit No. BOHC/MG/CV/54/2014, record of proceedings and copy of the judgment of this Honourable Court in suit No. BOHC/MG/CV/139/2014 are hereto attached as Exhibits BIM3, BIM4 and BIM5 respectively.
9. That dissatisfied with the decision of this Honourable Court, the claimant/respondent’s predecessor in title and progenitor (Alhaji Bukar Gonimi) appealed against the judgment to the Court of appeal Jos in appeal No. CA/J/253/13 wherein the Court of appeal Jos Division dismissed the appeal on the 26th May, 2016. Enclosed to this affidavit and marked as Exhibit BIM6 is a copy of the judgment of the Court of appeal Jos in appeal No. CA/J/253/13.
10. That the decision of this Honourable Court in suit No. BOHC/MG/CV/139/2011 in favour of the defendant/applicant against Alhaji Bukar Gonimi (the predecessor in title of the claimant/respondent) is still valid and subsisting having been affirmed by the Court of Appeal.
11. That I was further informed by both the learned counsel under reference whereof I verily believe them to be correct and true as follows:
a. that the claimant/respondent is tracing his title through his predecessor in title and progenitor (Alhaji Bukar Gonimi)
b. That the claimant/respondent cannot re-litigate over the issue of title between him and Baba Ibrahim Musa or his successor(s) in title as same having been previously determined between Baba Ibrahim Musa and the claimant/respondent’s predecessor in title by this Honourable Court.
c. That this Honourable Court lacks jurisdiction to entertain suit No. BOHC/MG/CV/139/2011 as same having been caught up by principle of res judicata.
d. That the claimant/respondent has ample right to appeal against the decision of this Honourable Court in suit no. BOHC/MG/CV/139/2011 as an interested party.

Paragraphs 3(a) to (f), 4 and 5 of the Courter Affidavit are germane in determination of whether suit No. BOHC/MG/CV/54/2014, is competent …
3. That I was informed by the Applicant on the 11th October, 2016 in our law firm at about 10:00 am whom I verily believe to be true and correct as follows:
a. that contrary to paragraph 4 of Applicant supporting affidavit the claimant knows who he sued before this Court which is Umar Tahir not Baba Ibrahim Musa in suit No. BOHC/MG/CV/54/2014
b. That contrary to paragraph 5 of Applicant’s supporting affidavit the respondent sued the applicant herein seeks declaration of title in respect of land which was not litigated in suit No. BOHC/MG/CV/139/2011.
c. The Respondent further state that the judgment in suit no. BOHC/MG/CV/139/2011 the respondent is not a party to the case neither the subject matter was the same as per judgment of this Court in suit No. BOHC/MG/CV/139/2011 vide Exhibit BIM5 attached to the Applicant’s objection.
d. That contrary to paragraph 7 of supporting affidavit that this Court has made clearly that the judgment which the respondent rely upon before this Court in respect of plot of land measuring 199ft by 197ft located at Jiddari Polo Mai Sandari liberty ward Maiduguri in suit No. M/142/2006 between Baba Umar Alh. Mustapha vs Mallam Gonimi is entirely different from suit No. BOHC/MG/CV/139/2011 between Baba Ibrahim Musa and Bukar Gonimi vide Exhibit BIM3 of the affidavit in support.
e. That contrary to paragraphs 9 and 10 of the supporting affidavit the Court of Appeal Jos also states clearly that the land was different from the land in dispute vide Exhibit BIM 6 of the affidavit in support.
f. That contrary to paragraph 11 of the supporting affidavit the subject matter of this suit is measuring 199ft by 197ft lying and situated at Jiddari Polo Maiduguri Borno state and entirely different.
4. that in further answer to paragraph 11 a, b, c, d of supporting affidavit that the respondent is tracing his title through his predecessor in title in suit No. M/142/2006 between Baba Umar Mustapha vs. Mallam Gonimi which the High Court declared Mallam Gonimi as the rightful owner of the plot in dispute measuring 199ft x 197ft located Jiddari Polo Mai Sandari liberty ward Maiduguri, Borno State.
5. That I was informed by the counsel handling this matter A.R. Abdulsalam Esq. in his law firm at No. 2 Shehu laminu Way Maiduguri, Borno State no 12-10-2016.
a. that the applicant can not mislead the Court by bringing the name of Baba Ibrahim Musa as his successor(s) in title as same having previously determined.
b. That this Court has jurisdiction to entertain suit No. BOHC/MG/CV/139/2011 having not caught up by principles of res judicata.
6. That grant of this application will prejudice the interest of the respondent and same be refused.

The deposition contained in paragraph 4 of the Reply to the respondent’s counter Affidavit can be found on pages 182 to 184 of the printed record of appeal. The reasoning of the learned Judge of the lower Court leading to the decision arrived at are contained on pages 207 to 210 of the printed record of appeal which have been reproduced hereinbefore in this judgment.

In the introductory part of the respondent’s brief of argument, in paragraphs 1.05 to 1.08, thereof, learned counsel outlined the position of the respondent in the transaction involving the land in dispute between the parties. With profound gratitude, I hereby adopt same in this judgment and reproduced same hereunder, thus:
1:05. it is the Appellant’s stand that, he bought the land in dispute on the 4/3/2011 from Mallam Gonimi who is also known as Alhaji Bukar Gonimi (as envisaged by page 123 of the record of the proceedings and paragraphs 2:05–2:06 of pages 3 to 4 of the Appellant’s Brief of Argument.
1:06. However, prior to suit No. BOHC/MG/CV/54/2014; the present Respondent Baba Ibrahim Musa sued the said Mallam Gonimi (also known as Alhaji Bukar Gonimi) before the Borno State High Court in suit No. BOHC/GM/CV/139/2011 over the same subject matter which was declared by the trial Court as Plot No. 284A covered by C of O no. BO/18787 situated as plan no. BOTP 18 (LP) BO46, Molai road GRA, extension Maiduguri, Borno State as against the assertion of Alhaji Bukar Gonimi (the appellant’s predecessor in title).
1:07. Dissatisfied with the judgment of the Borno State High Court in Suit No. BOHC/MG/CV/139/2011; the said Alhaji Bukar Gonimi from whom the appellant is tracing his title; appealed to this honourable Court sitting in Jos in appeal No. CA/1/253/2013 and judgment was delivered on the 26th May 2016 against Alhaji Bukar Gonimi. See pages 140 to 163 of the record of proceedings.
1:08. The same Alhaji Bukar Gonimi who the Appellant is tracing his title through further appealed to the Supreme Court where the appeal is currently pending, whereas, the registry of this Honourable Court had compiled the record and remitted same to the Supreme Court.”

As to the parties in the dispute in suit No. BOHC/MG/CV/139/2011 and BOHC/MG/CV/54/2014, I refer to the principles of law propounded in the case of SKYBLIND (NIG) LTD VS NEWLIFE COOPERATIVE SOCIETY & ORS (2020) NWLR PT. 1730 PAGE 541 @ 567, Wherein, it was held that:
“The term “parties” for the purpose of estoppels per rem judicatam includes not only those named on the record but also those represented and those who had direct interest in the subject matter of dispute and had an opportunity to attend and protect their interest in the processing… The principle that for the defence of res judicata to succeed there must be sameness of parties does not mean that all the parties in the previous suit must be made parties in the later suit. It is sufficient where there are several parties in the previous suit, that those of the parties who are necessary parties to the issues in the previous suit are the same as in the latter suit… in the circumstance, the parties in the two suits are the same within the definition of “parties” for the purpose of res judicata”
Furthermore, on pages 569 to 570 of the case of SKYBLING LTD VS NEWLIFE COOPERATIVE & ORS, SUPRA, it was held as follows:
“One of the criteria of identity of two suits in considering a plea of res judicata is the enquiry whether the same evidence will support both suits. In this case, the same evidence was required to prove the claims in both suits…”
In view of the foregoing, I am in full agreement with the learned Judge of the lower Court, when he found and held as recorded on pages 207 to 210 of the printed record of appeal, thus:
“the Court is also of the view to look at a critical appraisal of decisions of superior Court in Nigeria on the requirement that the parties or their privies must be the same in the two suits will show that either the actual parties whose names appear on the face of the record of proceedings of the previous litigation or their privies, must be the same. It is clear from the wordings of Section 173 of the Evidence Act. Indeed “parties” when used in respect of a plea of res-judicata, includes “privies” as in the case of BANKOLE VS PELU (1991) 8 NWLR (PART 211) 523 SC. Also in UDO VS OBOT (1989) 1 NWLR (PART 95) 59 also in DIKE-OGU VS AMADI (2008) ALL RWLR (part 438) 257 at 280 CA GALADIMA JSC as he then was held succinctly as follows:
“I wish to comment briefly on the legal position of parties as far as this doctrine is concerned. Parties in the subsequent action may be privies to the previous action. Privies in law are those who derive title from and also claim through that party. Privies are in 3 categories or classes (a) privy and blood (b) privies in law and (c) privies in estate.
The first are blood relations like ancestors, and heirs; 2nd and 3rd are executors administrators, vendors and purchasers”
From the above findings the present Suit No. BOHC/MG/CV/54/2014 between MOHAMMED LAMINU GONI VS UMAR TAHIR is the same with the previous suit No BOHC/MG/CV/139/2011 between BABA IBRAHIM MUSA and ALHAJI BUKAR GONIMI.
I hold that what is before this Court is suit no. BOHC/MG/CV/54/2014 between MOHAMMED LAMIMU GONI and UMAR TAHIR. Which the subject matter as per the claimant’s claim is situated at Jiddari Polo Maisandari Liberty Ward Maiduguri is one and the same land which is the subject matter as claimed by ALHAJI BUKAR GONIMI (the claimant/respondent predecessor and progenitor in title) in suit no. BOHC/MG/CV/139/2011 in which the defendant/applicant BABA IBRAHIM MUSA who was again sued as UMAR TAHIR in the present case was victorious over ALHAJI BAKAR GONIMI who appealed against the said judgment of this Honourable Court to Court of Appeal Jos in Suit No. CA/J/253/13 wherein his appeal was dismissed by the said Court of Appeal on the 26th May, 2016.
I still hold that the judgment of High Court No. 7 in Suit No. M/142/2006 between BABA UMAR MUSTAPHA VS MALLAM GONIMI delivered by Honourable Justice U. B. Bwala on the 10th January, 2011 has nothing in common before this Court relating to the present and the previous Suit No. BOHC/MG/CV/54/2014 between MOHAMMED LAMINU GONI and UMAR TAHIR and suit No. BOHC/MG/CV/139/2011 between BABA IBRAHIM MUSA and ALHAJI BUKAR GONIMI which in both suit parties and the subject matter are the same.
It is also the view of this Court that the present claimant MOHAMMED LAMINU GONI is privy to the previous action hence he was bound by it, meaning the plea of res-judicata succeed as in the case of EKENNIA V. NKAPAKARA (1997) 53 SCWJ 70 at 83.
Suit No. BOHC/MG/CV/54/2014 between MOHAMMED LAMINU GONI and UMAR TAHIR is hereby dismissed.”
I cannot fault the reasoning and decision supra.

In the end result, I resolve the sole issue for determination in the appeal against the appellant. The ruling of the lower Court delivered on the 21st day of November, 2016, in suit No. BOHC/MG/CV/54/2014, is hereby affirmed. The respondent is entitled to costs, which is assessed at N50,000.00. Same is awarded to him.

JUMMAI HANNATU SANKEY, J.C.A.: I have had the advantage of reading the judgment of my learned brother, Ibrahim Shata Bdliya, J.C.A.

The short point arising for determination in this appeal is: whether the subject matter of the suit, which is land measuring 199ft by 197ft situate at Jiddari Polo Maisandari Liberty Ward Maiduguri, has been previously litigated upon by the same parties or their privies and a final judgment was issued by a competent Court of law. From an in-depth dissection of the facts, the trial Court came to a determination that the case leading to this appeal had been previously litigated upon in Suit No. BOHC/MG/CV/139/2011, which decision delivered on 25th June, 2013 was confirmed by this Court on appeal in Appeal No. CA/J/253/2013 on 26th May, 2016. The aggrieved party has since approached the Supreme Court to challenge the decision of this Court and the appeal is still pending. In this wise, I agree that the plea of res judicata raised before the trial Court was rightly sustained and upheld.

Res judicata is a Latin phrase which means, a matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment. The rule is that a final judgment rendered by a Court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. See Adeyemi-Bero V LSDPC (2012) LPELR-20615(SC) 77, C-D, per Ariwoola, JSC; Ntuks V NPA (2007) LPELR-2076(SC) 25, C-F, per Tobi, JSC.

It is for this reason and the detailed reasons in the lead judgment that I too dismiss the appeal. I adopt the consequential orders made in the leading judgment, including the order as to costs.

EBIOWEI TOBI, J.C.A.: I have read in draft, the lead judgment just delivered by my learned brother, Ibrahim S. Bdliya, JCA. My lord affirmed the ruling of His Lordship, Hadiza Ali Jos wherein the preliminary objection of the respondent who is defendant in the case culminating to this appeal, which is Suit No. BOHC/MG/MG/CV/54/2014 was upheld and consequently, the appellant’s claim who was the claimant in the lower Court was dismissed on the ground of estoppel per rem judicata. The implication of the ruling of the lower Court is that the parties, subject matter and issues in suit No: BOHC/MG/CV/137/2011 in which judgment was delivered in 2011 by a competent Court being the High Court in Borno State is the same with the case culminating into this appeal arising from Suit NO. BOHC/MG/CV/54/2014. The ruling of the lower Court is found at pages 195-210 of the records. Dissatisfied with the ruling, the Appellant appealed to this Court. The main thrust of the appeal is that the principle which will warrant a plea of estoppel per rem judicata to operate has not been established by the respondent who was not a party to the earlier suit that is BOHC/MG/CV/139/2011. This appeal will succeed if I agree with him and it will fail if I disagree with him. At this point let me buttress the conditions that need to be satisfied before the plea of res judicata can apply. I just will like to add my voice in this regard. The law on what the party relying on res-judicata need to prove has been established beyond all doubt. The main principles are that the previous decision must be decided on the merit by a competent Court between the same parties over the same subject matter involving the same issue with the current case. See Balogun vs Adejobi & Anor (1995) LPELR-724 (SC). One or two cases on this point will not harm anyone. The doctrine applies to stop a party or his privies or representatives from litigating over a matter that has been decided on the merit by a competent Court between the same parties or their privies and representatives over the same subject matter. For the doctrine to apply, the party seeking to apply same must show that the parties are the same, the subject matter is the same and the matter has been decided on the merit by a competent Court. In OGBOLOSINGHA & ANOR VS BAYELSA STATE INEC & ORS (2015) LPELR-24353 (SC) 27-29, the Supreme Court per Ogunbiyi, JSC 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 Iheanacho v. Egbula (2021) 14 NWLR (pt 1795) p. 174 at p.202 paras B-D; 209 F-H (SC).
The requirement to be satisfied by the Respondent in this appeal, the objector in the lower Court which is that the parties are the same, the subject matter is the same and the matter has been decided on the merit by a competent Court must co-exist. If there is contradictory evidence from the parties on each of the conditions to be satisfied which cannot be resolved by the documentary evidence, the law is that a Court cannot pick and choose which of the evidence to believe and accept but rather will call oral evidence to resolve the conflict. See Ejezie & Anor v. Anuwu & Ors (2008) LPELR-1063 (SC); Mabamije v. Otto (2016) LPELR-26058(SC); Ezechukwu & Anor v. Onwuka (2016) LPELR-26055(SC).

Before I look at the affidavit evidence before the Court, I must be quick to say with all sense of responsibility that a Court of law which is a Court of justice should not allow itself to fall for the trick or the smartness of a party who wants to avoid the operation of the plea of res judicata. There are various ways a party can do that and so the Court must read in between the lines in deciding whether the plea of res judicata is applicable or not. The fact that the party trying to avoid the application of the principle gives the land in dispute another name or that the names of the parties in both suits are different should not on the face value undermine the operation of the doctrine of estoppel per rem judicata. A Court in the circumstance must therefore look at the affidavit evidence very well and the documents attached to same in coming to the conclusion whether the doctrine is applicable or not. I wish to state again when there is clear conflicting affidavit evidence which could not be resolved by the documents before the Court on principles for the application of the doctrine, it is safer to go into trial so that evidence can be obtained in deciding the case.

On this point of the parties in both suit to be the same, as rightly stated in the lead judgment, party does not just mean the actual party on record but includes the privies. This Court defined who a privy is in Teri vs Augustine (2021) LPELR-52655 (CA) when his lordship Abundaga, JCA held adopting the definition in Agbogunleri vs DEPO & Ors(2008) LPELR-243 (SC) thus:
“I shall now proceed to consider the second plank of the first issue. I want to commence it with an appreciation of the definition of the term Privy. The definition of who is a privy in the case of Agbogunleri vs. DEPO & Ors (2008) LPELR-243 (SC) is apt. In the said case, the Supreme Court defined privy thus:
“But, who is a privy? In Arabio v. Kanga (1932) 1 WACA 253 at p. 254, a privy was defined as that person whose title is derived from and who claims through a party. It may also imply identity of successive interest or persons having interest in property.” Per MUHAMMAD, J.S.C (P. 23, paras. C-D).
See also the case of Makami vs. Umaru (2013) LPELR-20799 (CA), Pp. 12 13, paras G B. It is evident from the pleadings and evidence that both the Appellant and Respondent traced their title to the Ministry of Housing and Electrification and Ministry of Housing and Environment. No doubt, it is appropriate to define both the Housing Corporation represented by the Ministry and Rural Electrification, Borno State and the Attorney General, Borno State as privies of the Appellant and the Respondent. “

​For the lower Court to be correct in its decision, there must be evidence that suit No: BOHC/MG/CV/139/2011 was a final decision of a competent Court over the same property between the same parties and decided on the same issues as in Suit No: BOHC/MG/CV/54/2014. I will now consider each of the points here. It is not in doubt that Suit No: BOHC/ MG/CV/139/2011 is a case decided on the merit by a competent Court. This case even went on an appeal to this Court which is now on appeal before the Supreme Court. On the subject matter and the issues whether they are the same, though the Appellant tried so hard to say that the land is different by joining issues with the paragraphs of the affidavit in support in the counter affidavit but it does not seem to me that he succeeded. The land in dispute in both cases is located at Jiddari Polo in Maiduguri. In suit No: BOHC/MG/CV/139/2011 the land is described as situate in Jiddari Polo Maiduguri. The land in Suit. No. BOHC/MG/CV/54/2014 is described as situtate in Jiddari, Polo Mansadari Liberty Ward, Maiduguri. In my opinion, the land involved in both cases is the same. If I had any doubt whatsoever, the appellant in the brief settled the doubt when it was submitted in paragraph 1.06 that the land is the same. The issues are also the same as the issues in both cases is the ownership of the land in dispute.

​The last and challenging principle in this appeal is whether the parties are the same. The judgment of the lower Court clearly stated the names of the parties in both cases. In BOHC/MG/CV/139/2011 are BABA IBRAHIM MUSA and ALHAJI BUKAR GONIMI. In BOHC/MG/CV/54/2014, the parties are MOHAMMED LAMINU GONI and UMAR TAHIR. On the face of it, the parties are not the same as their names are different. There is evidence before the lower Court that the Appellant in this appeal, who was Plaintiff in the lower Court, is the successor in title to the Defendant in BOHC/MG/CV/139/2011. To sound more specific and relevant, MOHAMMED LAMINU GONI is privy in estate to ALHAJI BUKAR GONIMI. In this regard, the lower Court was right in holding that he is bound by the decision of the previous case. I am comfortable with that.

The little challenge is the Defendant to the case on appeal that is UMAR TAHIR. He was not a party to the previous case. He just arrived at the scene in this case. On the face value, it can be said that on that ground alone, the doctrine or plea of estoppel per rem judicata cannot operate in this case as the parties are not the same as the Respondent here, the Defendant in the lower Court is not a party to the previous case.

​In addressing this point, I need to be conscious of the fact that this is not only a Court of law, it is also a Court of justice, permit me to say, it is more of a Court of justice than a Court of law. In that respect, the duty of a Court is to interpret the law within the context of promoting justice. If the interpretation of the law will not promote justice then the purpose of the law will be defeated. A judicial officer should have that at the back of his mind while interpreting any law. While a judicial officer should not make new law but it is within the judicial function of a Court to ensure that in interpreting the law, the tenet of justice is served and by this substantial justice and not technical justice. In Omoju v. FRN (2008) LPELR-2647(SC), the apex Court driving home this point held:
“Courts of law have long moved away from the domain or terrain of doing technical justice to doing substantial justice. This is because technical justice, in reality, is not justice but a caricature of it. It is justice in inverted comas and not justice synonymous with the principles of equity and fair play. Caricatures are not the best presentations or representations. Substantial justice, which is actual and concrete justice, is justice personified. It is secreted in the elbows of cordial and fair jurisprudence with a human face and understanding. It is excellent to follow in our law. It pays to follow it as it brings invaluable dividends in any legal system anchored or predicated on the rule of law, the life blood of democracy. See generally State v. Gwato (1983) 1 SCNLR 142; Union Bank of Nigeria Plc v. Ikwen (2000) 3 NWLR (Pt. 648) 223; Sha v. Kwan (2000) 8 NWLR (Pt. 670) 685; Adebayo v. Okonkwo (2002) 8 NWLR (Pt. 768) 1; Asims (Nig.) Limited v. Lower Benue River Basin (2002) 8 NWLR (Pt. 769) 349; Afro-Continental (Nigeria) Ltd. v. Co-operative Association of Professionals Inc. (2003) 5 NWLR (Pt. 815) 303.” Per TOBI, J.S.C.

Applying the above stated position and a review of the facts of the case on appeal, it is my considered opinion that the tenet of justice will not be served if I do not permit the operation of the doctrine of estoppel per rem judicata simply because the suit culminating to this appeal, instituted by a privy in estate to the Defendant in the previous case that is BOHC/MG/CV/139/2011 decided to sue Umar Tahir who was not a party to the previous suit on the grounds that he trespassed into his land. A party can sue any person he thinks has infringed on his right but in a situation such as what is before this Court, the doctrine of estoppel per rem judicata is applied. From the subsisting judgments except for the appeal, the appellant has no title over the land in dispute. In the circumstance, justice will not be served to relitigate on this matter since the land in dispute is the same as agreed by all the parties, the issues are the same and been a final decision operates simply because the name of a party is added in this suit as a trespasser. He is tagged a trespasser to a land not owned by the Appellant. There is evidence that Umaru is claiming title to the same land as a privy to Ibrahim.

​For the reasons advanced above, I agree with the lead judgment delivered by my learned brother, Ibrahim S. Bdliya, JCA. I also dismiss this appeal as lacking in merit and affirm the ruling of Justice Hadiza Ali Jos in Suit No: BOHC/MG/CV/54/2014. I abide by the consequential order.

Appearances:

A. R. ABDULSALAM, ESQ. For Appellant(s)

J. T. GUNDA, ESQ., with him, Z. M. UMAR, ESQ. For Respondent(s)