HABU TAHIRU v. MAIWADA ISHAKU
(2013)LCN/6070(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of March, 2013
CA/J/37/2004
RATIO
“It is settled law that a decision of the court must be supported by evidence and it is misdirection for a court to give Judgment on an issue on which there is no evidence at all, as in the instant case. See OPOBIYI v. MUNIRU (2011) 18 NWLR (PT. 1278) PG. 38 AT 405.” Per DANJUMA, J.C.A.
“The duty of the court is to decide between the parties on the basis of the evidence demonstrated, canvassed and argued in court. Under the Nigerian adjudicatory system, every decision taken must be based on evidence before the court, and the decision taken contrary to the evidence before the court is perverse and must not be allowed to stand by the Appellate court.” A court of law has no jurisdiction to speculate or conjecture upon any possibilities. See EJEZIE v. AMUWA (2008) ALL FWLR (PT. 422) 1005 AND UWAGBOE v. STATE.” Per DANJUMA, J.C.A.
JUSTICES
JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOHAMMED A. DANJUMA Justice of The Court of Appeal of Nigeria
Between
HABU TAHIRU Appellant(s)
AND
MAIWADA ISHAKU Respondent(s)
MOHAMMED A. DANJUMA, J.C.A. (Delivering the leading judgment): The Appellant had instituted a suit as a plaintiff at the Upper Area court, Keffi in Nasarawa State in Suit No.UACK/8CV/2000 against the Respondent herein (as a defendant) over a farm land.
Before the hearing of suit could commence, the Respondent raised a point of preliminary objection against the suit based upon the doctrine of estopel per rem judicata.
The said objection was argued and sustained by the Upper Area
Court. The Plaintiff, being dissatisfied appealed against the said ruling to the High Court of Justice, Keffi, whereat the appeal was dismissed and the ruling of the Upper Area Court sustaining the objection was affirmed and the objection further re-affirmed.
The Record of Appeal in this matter was compiled and transmitted on the 13/2/04, whilst the Ruling was delivered on 21/10/2003; a period of 103 days between the Ruling and compilation.
I find nothing in the record to suggest that leave was sought and granted to so transmit record out of time, but I shall say no more as the parties have not raised it as an issue. I cannot even lay my hands on the Notice of Appeal that has the date of filing to assist me in the issue which could be so resolved upon a perusal of the date of filing.
Be that as it may, the relevant and key issue is that following the entry of the record, the Appellant filed the Appellant’s Brief of Argument dated 4th April, 2004 on the 5/4/2004 and obtained an order of this court on the 9th March, 2006 for the appeal to be heard on the Appellant’s Brief alone upon his motion to that effect which was filed on 25th May, 2005.
The Respondent, it should be pointed out, had filed a motion on 15/12/2006 for an order extending time within which the Respondent could file and serve the Respondent’s Brief out of time. The said motion was however, struck out on the 13/6/12 for want of prosecution.
I, therefore, have only the Appellant’s Brief to grapple with. At the hearing on the 4th March, 2013, J. Y. Bello, Esq. appeared for the Appellant and adopted the Appellant’s Brief of Argument filed on 5/4/2004 and urged that the appeal be allowed. Although the Registrar of this court informed this court that the Respondent was served a Hearing Notice on 12/2/2013, no appearance was put up to respond to the arguments contained in the Brief of Argument adopted. In the said adopted Brief of Argument, at paragraph 3.1 – 3.3 thereof, the Appellant distilled 3 issues for our determination, to wit:-
1. Whether the lower courts were right in dismissing the Appellant’s claim based on the doctrine of estopel per rem judicata.
2. Whether the objection was properly raised at the trial court.
3. Whether it was the correct position of the law as stated by the lower court when it stated” –
“when a claim of declaration of title fails the case for trespass cannot stand.”
I have perused the issues and think that from the decision of the lower (High Court) court appealed from, the only relevant issues that are all encompassing and shall determine this appeal on its merit are issues No.1 and 2.
Issue No.3 is academic and its determination either way does not answer the grounds of appeal that germanely arise from the decision appealed from.
Issue No.2 may be subsumed in issue No.1 and shall therefore be treated briefly.
Arguing the issue of Res judicata, learned counsel for the Appellant submitted that both courts below were wrong when they dismissed the Appellant’s claim on the ground that it was res judicata.
Elucidating on the meaning and purport of the doctrine of res judicata, it was submitted that res judicata has been defined as –
“an admission or something which the law views as equivalent to an admission. By its very nature, it is so important, so conclusive that a party whom it affects is not allowed to plead against it, or adduce evidence to contradict it… Estopel prohibits a party from proving anything which contradicts his previous acts or declaration to the prejudice of party who is relying on them, has altered his position.”
Learned counsel contended that there must be some previous acts, declaration, act or omission intentionally made by the person which caused or permitted the other person to believe to be true and upon which the other acted to his detriment.
Relying on the case of UKAEGBU v. UGOJI (1991) 6 NWLR (PT.196) 127 AT 143 – 144, it was submitted that for there to be a valid plea of estoppel inter parties or per rem judicata, certain pre-conditions must exist and be proved.
I. That the same question must be for decision in both proceedings which means that the question for decision in the current suit must have been decided in the earlier proceeding.
II. The decision relied upon to support the plea of Issue estoppel must be final.
III. The parties must be the same (which means the parties involved in both proceedings must be the same perse or by their privies).
OKAFOR ADONE & ORS. v. OZO GABRIEL IKEBUDU & ORS. (2006) 36 WRN 24 AT 40 LINES 20 – 35 PER ONU, JSC referred.
It was submitted that the lower court did not properly consider the affidavit evidence.
That the Respondent’s evidence as contained in the affidavit was deposed to by a counsel who never disclosed his source of evidence contrary to Section 89 of the Evidence Act, 1990 (as amended). That the subject matter in the two cases were not disclosed. That the location of the subject-matter was also not disclosed. That paragraph 3(a) of the verifying affidavit clearly stated that the previous proceedings were between the Respondent and one Yakubu Munguda and that the Appellant was related to the said Yakubu Munguda.
It was contended that that assertion was not enough as the Respondent ought to have established how the Appellant became interested in the previous suit.
That the lower court did not consider the Counter-Affidavit filed by the Appellant. He referred to pages 30-32 of the records wherein the counter-affidavit is contained and said the two affidavits were irreconcilably in conflict. He therefore, submitted that where there is an irreconcilable affidavit, the court should first hear evidence from the deponents and their witnesses before relying on either.
He referred to EGHOLGBIN OKETIE & ORS. v. AMROSE OLUGHOR & ORS. (1995) 5 SCNJ 217 AT 230.
It was also contended that the trial court did not visit the land to ascertain which land was adjudged upon as the parties were not in agreement as to the identity of the land. That in the absence of a visit to the land and there being no consensus, the identity of the a land was unknown. That the Respondent ought to have properly described the land he said was given in his favour.
That not having done so, the Respondent’s plea ought to have been dismissed.
SAMUEL OKEDARE v. OBA AHMADU ADEBARA & ORS. (1994) 6 SCNJ 254 AT 265.
I have read the record of appeal in this matter and find it curious that the record in my possession does not contain the Writ of Summons or Statement of Complaint nor the Statement of Claim filed at the Upper Area Court that formed the basis of the objection that was raised at the said court on res judicata and upheld which ultimately was upheld by the lower court (High Court) and thus constituting the subject of this appeal.
Be that as it may, I note that at page 33 of the record of appeal, there is recorded the proceedings of the Upper Area Court holden at Keffi in this tenor:-
“In the Upper Area Court of Nasarawa State.
In the Upper Court of Keffi, UKCK/8CV/2000, 21/1/2000
BETWEEN:-
HABU TAHIRU Plaintiff
AND
MAIWADA ISHAKU Defendant
Parties: The Defendant not in Court.
Cause of action: Claim of Two hundred Thousand Naira (N200,000) for damages and claim of title to land.
J. A. Kudu for the Plaintiff.
A. M. Salisu for the Defendant.
Court: The case is for mention.
Kudu: We filed our statement of claim and stand by it.
Salisu: We deny liability and we give notice that on the next adjourned date, we will raise an objection because the case has been tried already.
Court: The case is adjourned to the 15/2/2000 for hearing.”
On the 15/2/2000, J. K. Kudu stated thus: –
“We have 2 witnesses in court and we are ready to proceed or we shall be asking for cost.”
The trial Judge curiously recorded thus:- “case for mention” and proceeded to accede to the Defendant’s request for adjournment to hear the objection. The objection was heard and granted.
Although pleadings are not mandatory in the Customary or Area Courts, and the parties merely proceed to state their respective cases, starting with the plaintiff who accentuates his Writ of Summons, Statement of Complaint and thereafter by calling witnesses if any or tendering any document in support, where, however, a Statement of Claim has been filed, it is the duty of the court to ensure that the plaintiff proceeds to establish his case based on his claim as filed. The Defendant has the right of response to same by filing a Statement of Defence or answer as it is customarily known and to thereafter testify in adumbration.
If a special defence such as laches, acquiescence, estoppel or res judicata, is raised, the law requires that it be specifically raised and pleaded. Such pleaded facts must be proved by evidence led thereto.
In the preliminary objection raised, the question borders on the existence of a previous proceedings and judgment wherein the Appellant has testified as DW3 and as a relation of the Defendant/Appellant in that earlier suit.
The said previous Judgment is not disputed except the Appellant herein contends that no plea of res judicata or estopel can be founded upon it against him.
The Appellant insists that he was not a party to the earlier suit as he was only a witness – the DW3. He insists also that his claim and the land in dispute was different from the claim and land in the previous suit. That he came from a different clan from the Defendant/Appellant in the earlier suit.
The learned lower court did not accede to this response or the objection on res judicata or estoppels.
The issue of res judicata simply means a matter that had been adjudged or decided or already settled by Judgment. It simply means 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 as to them constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. To be applicable, it requires identity in thing sued for, as well as identity of cause of action, of persons and parties to the action and of quality of the persons for and against whom the claim is made.
This is so, as S.54 OF THE EVIDENCE ACT 1990 LFN, 2004 provides thus:-
“Every Judgment’s conclusive proofs as against parties and privies of facts directly in issue in the case, actually decided by the court and appearing from the Judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the Judgment was delivered which is excluded in the action in which the Judgment is intended to be proved.”
The provision of the Evidence Act above, which is the statutory enactments of the common law principle of res judicata, is a legal maxim intended to bring an end to litigation and ensuring that rights of litigants are set to rest. See BONNY v. YOUGHA (1959) 1 ALL NLR 388 AT 393, AGU v. IBIWIBE (1991) 3 NWLR (PT. 180) 385 AT 412 PAR. H; IYAYI v. EYINGBA (1987) 3 NWLR (PT. 61) 523 AT 533.
It is intended to ensure that no one is proceeded against a second time if it is proved that the present action is for the same cause which had been decided by a court of competent jurisdiction. See OBIKPONG v. OFFIONG (2000) 3 NWLR (PT. 648) p. 324, ADOME v. AKEBUDU (2001) 11 NWLR (PT. 723) 62 AT 80 PAR. E.
The law, as firmly established by the Supreme Court in this regard has been re-stated by GALADIMA, JSC IN THE CASE OF MAKUN v. F.U.T. MINNA (2011) 18 NWLR (PT. 1278) PAGE 190 AT 232 when he pointedly stated thus: –
1. The parties or their privies are the same in both previous and present proceedings;
2. The claim or the issue in dispute in both proceedings is the same;
3. The res or subject matter or the litigation in the two cases is the same;
4. The decision relied upon to support the plea or estoppel per judicata must be valid, subsisting and
5. The court that gave the previous decision relied upon to sustain the plea must be a court of competent jurisdiction. Unless the above pre conditions are established, the plea of estoppel per rem judicata cannot be sustained.
It is entirely a question of fact whether the parties and their privies, and the subject matter of the claim are the same in both the previous and present suits. The plea operates not only against the parties but also against the jurisdiction of the court itself and robs the court of its jurisdiction to entertain the same cause of action on the same issues previously determined by a court of competent jurisdiction between the same parties.
Although the Appellant by his issue No.2 contends that the objection raised, based on a point of preliminary objection was in appropriate as Order 11 Rules 1 – 4 of the Plateau State Area Court (Civil Procedure) Rule 5 provided for objections, but by its Order 5 thereof such objections could only be by Motion on Notice, supported by affidavit deposing thereon facts, and not by a verifying affidavit.
I do think, with respect that Issue No.2, is in my view one basking on technicality a realm that the courts have long departed from and now only dwelling on the pursuit of substantial Justice. Affidavits, appear to have been filed. They constitute evidence. However, they are conflicting as the counter-affidavit denies the Defendant/Respondent’s affidavit and assets material facts grounding his right to institute the suit being challenged.
The Appellant’s counsel contends that the trial or lower court had a duty to first resolve the conflict by taking evidence from Defendants and their witnesses; that the court failed to. EGHOIGBIN OKOTIE & ORS. v. AMROSE ALUGBOR & ORS. 1995, 5 SCNJ 217 AT 230 was referred to.
I have calmly perused the submission of the parties at the lower court and the Judgment of the court, and think that the question is not whether the judgments of the lower court and the trial court are correct or right.
A judgment may be correct or right but shall not be allowed to stand so long as a violation of the right of fair hearing has been proved. In such situation it is as if there was no hearing ab initio. Fair hearing is the bedrock of adjudication.
The lower court ought to have heard the parties in evidence orally, whereat the evidence of the present Plaintiff/Appellant who testified as DW3 at the previous proceedings may be tested by a cross-examination thereon to prove his relationship with the claimant in that suit, establish the identity of the present subject of claim vis-a-vis the previous subject of claim in the suit in question, as the law after all is that evidence given by a witness in a previous suit is not admissible as proof of the truth thereof in a subsequent suit unless the witness is dead. Cannot be found and an effort made to trace him have failed. See S. 34 of the Evidence Act which provides thus:-
“S. 34 (ii) Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving in subsequent judicial proceedings or in a later stage of the same judicial proceedings, the truth of the facts which it states when the witness is dead or cannot be found or incapable of giving evidence or is kept out of the way by the adverse party or when his presence cannot be obtained without an amount of delay or expense which in the circumstance of the case, the court considers unreasonable.”
The procedure of the objection without the records being the witnesses’ testimony and judgment first brought or placed before the court in accordance with S. 34 of the Evidence Act jeopardised the objection and made it premature.
The objection raised ought be a total defence – to be raised at the hearing, just as a plea of lack of locus standi is raised in a pleading and determined after hearing/evidence.
DW3 in the judgment relied upon as constituting estoppel, is, the present Appellant. He is alive. He was not shown to be dead or could not be traced without undue delay at the trial or lower court. The living DW3 instituted the action – the subject of this appeal. I fail to see why he could not be allowed to ventilate his undoubtedly constitutional right of access to the courts and right to fair hearing as by Law (Constitution) guaranteed. See S.32 – 36, 1999 Constitution.
I think, with respect that it was a precipitated decision arrived at without a hearing. Where was the evidence on record that inextricably tied the Appellant’s claim to that already decided?
Where was the evidence that the Appellant claimed title or interest through the claimant in the previous suit or that they were privies in interest or blood?
The verifying affidavit in support of the objection is contained at page 5 of the record of appeal.
It states thus:
“1. Umar Mohammed, adult male, Muslem and Resident at 1A Turaki Extension, Keffi, do solemnly declare on Oath and state as follows:
“3 That I am informed by A.M. Salisu, Esq. of Counsel handling this matter instant and I verily believe him as true that:
1. the present mater was once heard and determined to conclusion between the present Defendant and one Yakubu Munguda;
2. the present Plaintiff, and the Defendant in the previous matter are related;
3. the previous suit ended in favour of the present Defendant. The record of proceedings of the previous suit is hereby attached and marked Exhibit ‘A’.
4. By virtue of the averment above, the present suit is stopped.
The subject-matter is the same.”
The aforementioned verifying affidavit was the evidence relied upon. It is clear from the said affidavit reproduced, that the cause of action is not indicated or proved in a hearing or full trial to be the same cause of action as in the challenged suit.
I also strenuously perused the record of proceedings of the trial court that was used as exhibit ‘A’ to the verifying affidavit in support of the objection and could not see anywhere therein a description and clear identity of the land sought to be relied upon as the subject of the plea of res judicata. Honestly, for me, I cannot see anything in the content of the proceedings and judgment – Exhibit ‘A’ which could be judicially relied upon and used against the Appellant.
It is settled law that a decision of the court must be supported by evidence and it is misdirection for a court to give Judgment on an issue on which there is no evidence at all, as in the instant case.
See OPOBIYI v. MUNIRU (2011) 18 NWLR (PT. 1278) PG. 38 AT 405.
I would in clear conscience, think that the applicable position of the law strengthens me the more in the view that the Judgment striking out the suit, at the lower courts was premature and a precipitate denial of the right of fair hearing and a Suicidal dereliction of jurisdiction by the lower court. The views of PETER ODILI J.S.C. IN OPOBIYI v. MUNURI (SUPRA) AT PAGE 411. PARAGRAPHS G – H; THE LEARNED JURIST OF THT APEX COURT is a binding authority of resort in this instant case. In the case, supra, PETER ODILI stated thus:
“The Gravemen of the contest before this court is in the main whether or not the Court of Appeal was right in striking out the suit based on incompetence on the ground that the parents of some of the parties were alive at the time the suit was initiated. It is true that under Islamic Law of Inheritance, if the parents of the Appellants and Respondents or those of any of the parties were alive, that could situate the parties into the class of heirs called “Distant kindred” (DHUR ABHAM) would by that not have the competence to either sue or be sued for inheritance of an ancestor whose estate is in issue. It is therefore an area needing evidence for clarification and would therefore not be easy to bring a preliminary objection contesting jurisdiction of such without a Notice to the other party, leave of court especially being a fresh issue. This is because such a decision cannot easily be reached by the court off hand without support of the necessary evidence as to the true status of those suing or being sued. MENAKAYA v. MENAKAYA (2007) FWLR (PT. 76) 742 AT 770, etc.
It is easy; therefore, to see that the court below made a hurried decision stemming from wrong premises thereby ousted its jurisdiction from a matter properly before it.
For emphasis this matter calls to attention the view of this court in A.G. FEDERATION v. A.N.P.P. (2003) 18 NWLR (PT. 851) 182 AT 207 when the court held that where a preliminary objection veer off the domain of law and flirts with facts of the case as in this instance where it needs verification whether or not the status of the parties or any of them was in question, therefore, the objection must justify the objection by supplying the relevant facts in affidavit. The court cannot act on the objection without basis or in vacuo. I refer to CHIEF OF AIR STAFF v. IYEN (2005) 6 NWLR (PT. 722); 495 AT 545; MOBIL OIL PRODUCING NIG. UNLIMITED v. MONOKPO (2003) 18 NWLR (PT. 852) 346 AT 433.
There was, in the instant Appeal, no indication in the verifying Affidavit as to the status in which the Defendant therein the earlier suit, relied upon, was sued or defended that suit. Was it in a personal or representative capacity? Was the Appellant herein remotely linked to that suit? I find no link other than as a witness i.e. DW3.
Learned counsel for Appellant, on his issue No.3 submitted that the holding or finding to the effect that where a declaration of title fails, a claim of trespass must also fail was wrong as it was not an issue for determination before the court; that the court was not to pronounce or make any finding as made, as no issues had been joined thereon. BENNET KARIBO & ORS. v. AMOS GREND & ORS. (1992) 3 NWLR (PT. 230) 426 AT 440 refers; that where a court fails to make findings on material and important issues or approaches the evidence adduced by the parties wrongly, the appellate court has no alternative than to allow the appeal. AWOTE v. OWODUNMI (No.2) (1987) 2 NWLR (PT. 57) 367 referred.
Counsel contended that, even then, the conclusion that the claim to trespass had its success anchored on declaration of title was wrong. MADAM RINATU SHITTU v. ALHAJI Y. O. EGBEYOMI & ORS. (1996) 7 SCNJ 43 AT 49 – 50 and did not constitute the correct state of the law. I agree. I think that this mistaken view of the law would appear to have beclouded the mind of the trial and lower court into shutting out the Appellant who was erroneously consigned into the shoes or compartment of the Defendant i.e. YAKUBU MUNGUDA in another suit, presumably CV190/98HD/25/5198 BETWEEN MAIWADA ISIAKU ‘M’ OF GAFI v. YAKUBU MAIGUDA ‘M’ OF TAKUSA CONTAINED AT PAGE 6 of the record.
Indeed, it can safely be contended that the so-called Exhibit ‘A’ that constituted the supporting document to the verifying Affidavit and thus constituting the facts relied upon was non-existent, as I find no such Exhibit ‘A’ so marked in the record of appeal. If there be no facts as the Exhibit ‘A’, as deposed to on Oath, it simply means that there was no evidence as indeed no affidavit competent to sustain the objection raised. The Exhibit ‘A’, said to be the record of proceedings of a court could only be legally before the lower and trial court upon production in accordance to law; that is to say by its production from an Officer or Registrar of the court who has custody thereof upon its certification. There was no such exercise of production in accordance to law. Where then is the Record, grounding the facts to be relied upon in establishing the plea of res judicata?
For the foregoing, I agree with the Appellant’s counsel that his client’s Counter-Affidavit remains uncontroverted and un-denied by the Respondent. It should be deemed proved and ought be accepted and acted upon. See STEPHEN LAWSON JACK v. SHELL PET. DEVELOPMENT CO. OF NIGERIA LTD. (2002) 45 WRN 77 AT 90 – 91. From the foregoing analysis, it is therefore, my view that the essence and duty of a court to do justice has been unduly stretched and wavered into abdication of jurisdiction and the constituting of the Appellant into a party or privy without legal justification. Even if Exhibit ‘A’, for the purpose of argument could be taken to have been properly placed before the lower court, I find at page 12, thereof where the Plaintiff as PW1 (Yakubu Mugada) testified in respect of a land which he said belonged to his grandfather and the Respondent herein contested that claim.
The Appellant now, while testifying as DW3 (at page 15 of the record) stated thus:-
“I know the Plaintiff and I also know the farm he is claiming is situated in Takusa area, which belongs to our clan. (Mune clan) and our grandfather is the founder of Takusa…”
Heavy weather was made of that evidence by the lower court.
That piece of evidence is not, in my view and understanding, to the effect that the disputed land belonged to the present Appellant. It simply meant that Takusa land or area belonged to their grandparents and they were opposed to any other persons claiming same or land there. That action was not a class or representative suit, nor was it shown to be an action in respect of communal or family land and in a representative capacity.
The present Appellant cannot be said to be estopped when he sought to bring his own distinct suit in respect of another specified piece of land. Even if he sued in respect of that same land, can he not be heard and adjudged a wrongful or fraudulent claimant? Are there no legal remedies for false claims? Can’t persons claiming to be entitled apply to join and counter claim? Was the success in respect of all lands in the place called Takusa?
The present Respondent who was the Defendant at the aborted suit (now on appeal), if he conceived that ex-facie, he had a good ground of law which, if raised will determine the action in limine is entitled to raise such a ground of law in either of the following ways:-
a) By not filing a defence, but applying to strike out the action as disclosing no cause of action or lack of locus standi or standing to sue; or
b) He may in his statement of defence rely on any ground of law he considers to be a complete answer to the Plaintiff’s claim.
The ground will then be argued as a preliminary issue and in the event of it being successful the plaintiff’s claim will end there. See AROWOLO v. AKAIYEJO (2012) PT. 1290 4 NWLR 286 AT 307 PAR, E. PER ABBA AJI, JCA.
The truncation of the case in limine not founded on a plea of locus standi as it were calls to my mind, the erudite and sagacious words of His Lordship of this Court, ABBA AJI, J.C.A. in the case of AROWOLO v. AKAIYEJO SUPRA, WHEREIN AT PAGE 306 of the report, the learned jurist stated thus:-
“The duty of the court is to decide between the parties on the basis of the evidence demonstrated, canvassed and argued in court.
Under the Nigerian adjudicatory system, every decision taken must be based on evidence before the court, and the decision taken contrary to the evidence before the court is perverse and must not be allowed to stand by the Appellate court.”
A court of law has no jurisdiction to speculate or conjecture upon any possibilities. See EJEZIE v. AMUWA (2008) ALL FWLR (PT. 422) 1005 AND UWAGBOE v. STATE.
I wholly adopt the above view and find it apt in this matter. The peremptory decision striking out the suit of the Appellant as Plaintiff at the Upper Area Court was one taken without evidence and must not be allowed to stand. I so hold.
In the circumstance, the two lower courts had descended into the arena to make a case for a party. It was wrong. It is wrong. Justice and conscience should remedy the error. I so do.
In the circumstance, I resolve the issues raised and argued in favour of the Appellant and accordingly allow the appeal on all the grounds of appeal contained on pages 63 – 65 of the records. The decision of the Upper Area Court, Keffi in suit No.UACK/8CV/2000 contained at page 38 – 41 of the record of this appeal is set aside and quashed. Consequentially and imperatively, the decision and order of the lower court i.e. (High Court) Court of Justice of Nasarawa State, Keffi in Appeal No.NSD/K9A/2000 delivered on 21/10/2003 which affirmed the quashed decision is also set aside and quashed.
The suit of the Appellant in suit No.UACK/8CV/2000 shall be restored to the cause list of the said court and to be heard on its merit by another panel of Judge(s) other than those that gave the quashed decision as shall be constituted by the Chief Judge of Nasarawa State.
This case has lingered for 10 years now. The better for the quick administration of Justice, if the Hon. Chief Judge gives the desired promptitude of attention in the re-assignment of the case.
Appeal allowed.
JA’AFARU MIKA’ILU, J.C.A.: I have read in draft the lead judgment of my learned brother, M. A. Danjuma, J.C.A. I am in agreement with the reasons given in it and the conclusion reached. I allow the appeal. The decision of the Upper Area court, Keffi in Suit No.UAC/8CV/2000 is set aside.
The decision of the Lower court i.e. High court of Justice Nasarawa State, Keffi in appeal No.NSD/K9A/2000 delivered on 21/10/2003 which affirmed the quashed decision is also set aside and quashed.
The suit No.UACK/8CV/2000 shall be restored to the cause list of the said court and is to be heard on its merit by another panel of Judges other than those that heard the quashed decision to be constituted by the Chief Judge of Nasarawa State.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the privilege of reading before now the lead judgment of my learned brother M. A. DANJUMA J.C.A., just delivered. His lordship has exhaustively dealt with all the issues in this appeal. I agree entirely with the reasoning and conclusion and have nothing further to add.
I also allow this appeal.
Appearances
J. Y. Bello, Esq.For Appellant
AND
Respondent served hearing Notice on 12-2-13 but did not appearFor Respondent
