MAKERI v. MANDACI (2022)

MAKERI v. MANDACI

(2022)LCN/17065(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, April 12, 2022

CA/A/250/2017

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

INGILA MAKERI APPELANT(S)

And

PAIKO MANDACI RESPONDENT(S)

RATIO

THE DOCTRINE OF ESTOPPEL BY CONDUCT

Now Section 169 of the Evidence Act 2011 provides:
“When one person has either by virtue of an existing Court judgment, deed or agreement, or by his declaration act or omission, intentionally caused or permitted another person to believe a thing to be true and upon such belief, neither he nor his representatives in interest shall be allowed in any proceeding between himself and such person or such person’s representative in interest to deny the truth of that thing.”
Section 173 of the same Evidence Act 2011, goes further to provide that:
“Every judgment is conclusive proof as against parties and privies, of facts directly in issue in a 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 that judgment is intended to be proved.”
The doctrine of estoppels by conduct as it is commonly called applies when a person is content to be a spectator rather than a gladiator, an onlooker rather than a player leisurely waiting for the outcome of the battle or play as the case may be. To succeed in the application of the doctrine, it must be shown that the person knew that his rights or interest were being adversely affected and yet chose not to do anything about it.
The party need not be a party in the previous action or qualify as a privy in interest. A non-party could be stopped and thereby be bound by the previous judgment if he knew or ought to have known of the pendency of the previous suit and chose to stand by. Such knowledge is either actual or imputed. See Anyaoke vs. Adi (1986) 3NWLR (pt. 31), Balogun vs. Agboola (1974) 10 SC 111 AT 119, Nwakonobi & Ors vs. Udeorah & ors (2012) LPELR – 9721 (SC). The consequence as stated by Owaode JCA in Chief Ita Okon Aqua vs. Chief David Ekanem (2008) LPELR – 8545 (CA) is that the party would not be allowed to resile from the admission or representation by conduct which he made. In that case, the judgment earlier made would be the conclusion on the matter as against the parties, privies on facts directly in issue in the case actually decided by the Court. This is the intendment of Section 173 of the Evidence Act 2011. See also Chief Amadi Dike-Ogu & Ors vs. Owhonda Frank Amadi & Ors (2008) LPELR – 8659 (CA), Agu vs. Ikewibe (1991) 3 NWLR (pt. 80) 385, Bonny vs. Yougha (1969) 1 ALL NLR 396 AT 401. PER BARKA, J.C.A

THE EFFECT OF FILLING A WRITTEN DEPOSITION DULY SIGNED BY A DEPONENT

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

It has been held by the Apex Court in Musaconi Ltd vs Mr. H. Aspinall (2013) LPELR – 20745 (SC) that:
“Jurisdiction is therefore of paramount importance in the process of adjudication. Where there is no jurisdiction in a Court to handle or adjudicate on a matter before the Court, everything done or every step taken in the proceedings amounts to nothing. See Attorney-General for Trinidad & Tobago vs. Erichie (1893) AC 518 AT 522, Timitimi vs. Amabebe 14 WACA 374, Mustapha vs. Governor of Lagos State (1987) 2 NWLR (pt. 58) 539, Utih vs. Onoyivwe (1991) 1 NWLR (pt. 58) 539. In other words, jurisdiction is the lifewire of any proceedings in Court and everything done in the absence of jurisdiction is simply a nullity. See Jumang Shelim & Anor vs. Fwendim Gobang (2009) 7SCM 165.”

By the clear provisions of Sections 169 and 173 of the Evidence Act, the jurisdiction of the lower Court was clearly ousted by statute clearly translates to the Court assuming jurisdiction as an exercise either in moot or as an academic exercise but certainly in futility. See Belgore CJN in The Shell Petroleum Development Company of Nigeria Limited vs. Abel I. (2001) LPELR – 3205 (SC), Barclays Bank of Nigeria Limited vs. Central Bank of Nigeria (1976) 6SC 175. PER BARKA, J.C.A

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The appellant was the defendant in Suit No. NSHC/MN/174/2015: Paiko Mandaci vs. Ngila Makeri. It is clear from the record, that by the suit mentioned above, the applicant as plaintiff by way of a writ of summons filed on the 27th of October, 2015, before the Niger State High Court, Minna Judicial Division, coram Aisha A.L. Bwari J, claimed against the defendant the following reliefs:-
i. A declaration that the Plaintiff is the lawful owner and therefore entitled to all that piece or parcel of land bounded in the North by a stream called Jegpuawu, in the South by Tafiya Yako’s farmland, in the East by Jaba Zaruma’s farmland and in the West by Zegi’s farmland.
ii. A declaration that the act of the Defendant in entering the land and preventing the Plaintiff’s agent from working on the land and in fact clearing the land by a grader thereby destroying the crops planted by the Plaintiff and his agents amounts to trespass and therefore illegal, null and void and unjustifiable whatsoever.
iii. An order of perpetual injunction restraining the Defendant, his agents, privies, assigns and whoever represents them from any further interference with the Plaintiff’s quiet enjoyment of the land in dispute.
iv. The sum of Five Hundred Thousand Naira as damages for trespass and wanton destruction of the Plaintiff’s crops by the defendant.
v. The cost of the action.

The defendant filed a statement of defense in which he disputed the Plaintiffs claim, apparently joining issues on all the material facts therein, and by way of a preliminary objection brought under the inherent jurisdiction of the Court and filed on the 26th day of April, 2016, prayed for order of the Court striking out the suit for want of jurisdiction. The application was premised on the grounds that the respondent herein is caught by Estoppel, by standing by (conduct) and issue estoppels as stipulated in Sections 169 and 173 of the Evidence Act 2011, and that the suit constituted an abuse of Court process. in support of the application is a four paragraph affidavit deposed to by one Yahaya Abubakar, a litigation Secretary in the chambers of the learned counsel appearing for the plaintiff, and hinged on the motion papers are the following documents:
i. Judgment of former High Court 3 Minna delivered by Hon. Justice Christopher I. Auta on the 5th of February, 2014 in suit with no. NSHC/MN/154/2007: Ingila Sarki Lashi vs. Chiroma Galadima Lashi marked as Exhibit A.
ii. Notice of Appeal marked as Exhibit B;
iii. Motion on Notice, Affidavit in support written Address, authorities cited as Exhibit C;
iv. List of defendant’s witnesses, witness statement on oath (PW1), (PW2), (PW3), (PW4) and (PW5) marked as exhibit D;
v. Judgment of the Upper Sharia Court Kuta delivered by Mallam Salisu Dogara on 30/7/2007 marked as Exhibit E;
vi. Written Address in support of the Preliminary Objection and list of authorities dated 18/4/2016 and filed on the 26/4/2016.

The plaintiff upon receiving the notice of preliminary objection, filed a five paragraph counter-affidavit deposed to by one Mary Emmanuel, a litigation Secretary in the law firm of Providence Chambers, the law firm representing the plaintiff. Also filed along with the counter affidavit is a written address all filed on the 4th day of May, 2016. The Court took arguments on the Preliminary objection, and gave due consideration to the submissions of learned counsel on both sides, and on the 28th day of November, 2016 ruled that:
“the combined effect of the above scenario is that the plaintiff/applicant cannot be said to have been aware of the litigation in respect of the land in which Exhibit A was given and stood by. He only became aware of it after delivery of Exhibit “A” by the High Court No. 3 Minna when the defendant/applicant came to inform him that the judgment creditors’ claims in Exhibit “A” covers the plaintiffs/respondent’s land now in dispute, hence the institute (sic) of the instant suit. he was therefore not a privy to the suit and thus Exhibit “A” cannot be a conclusive evidence against him to be caught up by doctrine of standing by as envisaged by Section 172 Evidence Act 2011. The land in Exhibit “A” and that in the instant suit, i.e. the subject matter in both suits are not the same the Court therefore holds. Consequently, the Court finds and holds that the preliminary objection lacks merit and same is hereby dismissed.”

Dissatisfied with the ruling of the Court, the defendant filed a notice of appeal on the 28th of February, 2017 predicated on a lone ground of appeal, to wit, that the learned trial Court lacked the jurisdiction to entertain this suit having regard to the fact that the suit is caught by estoppels by conduct (standing by) and issue estoppels as provided by Sections 169 and 173 of the Evidence Act, 2011. The appeal having been entered to this Court on the 13th of April, 2017, appellant filed a brief of argument on the 19th day of June, 2017. The respondent in opposing the appeal filed respondent’s brief on the 10th of May, 2018 deemed filed on the 25th of January, 2022. On the 16th of March, 2022, being the date scheduled for the hearing of the appeal, both counsel identified their respective processes, adopted the same and urged the Court to grant their respective prayers. Whereas appellant insisted that the lower Court lacked the necessary jurisdiction to hear the suit on the basis of the provisions of Sections 173 of the Evidence Act, and the proceedings conducted including the decision arrived at void, the learned counsel for the respondent holds the view that this appeal is lacking in merit and should be dismissed.

In the brief settled by I. M. Ndamitso, a sole issue was identified from the single ground of appeal for determination as follows:
Whether the trial Court was right to have assumed jurisdiction to hear and to entertain this suit on the ground that the respondent and his claim contained in the statement of claim were not caught by estoppels by standing by (conduct) as well as issue estoppels.

Mr. DSO Adeniji, the learned counsel appearing for the respondent on the other hand similarly identified a lone issue, to wit;
whether the doctrine of estoppels by conduct (Standing By) and issue estoppels can be invoked where the parties and the subject matter in a previous suit are not the same as in the present suit.

Let me state that even though the destination of the two issues formulated appears to be the same, the fact remains that the issue for which this Court is being called upon to answer has been considered and determined by the trial Court, and that decision remains binding until set aside by this Court on appeal. Apparently, it is because the answer or resolution of the issue by the lower Court is not palatable to the appellants leading to its being challenged that led to the instant appeal.

Thus it has been held that an appeal is an invitation to a higher Court to review the decision of a lower Court to find out whether on a proper consideration of the facts placed before it and the applicable law, the Court can be said to have arrived at the proper decision. See on this the cases of PPA vs. INEC (2012) 13 NWLR (pt. 1317) 215 (SC), Oredoyin vs. Orowolo (1989) 4 NWLR (pt. 144) 172, Thor Ltd vs. FCMB Ltd (1997) INWLR (pt. 479) 35. This clarification becomes necessary in view of the drafting of the issues by both counsels which failed to show that the issues formulated for the resolution of this Court is premised upon the decision of the trial Court. In the circumstance and in order to reflect all I have been saying, I find it necessary redrafting the issue so as to reflect and to make clearer the grouse of the parties in the following manner; whether the trial Court was right or wrong, when it held that it had jurisdiction to entertain the matter before it, and that the suit was not caught up by the doctrine of standing by as envisaged by Section 173 of the Evidence Act.

The learned counsel for the appellant argued the issue from pages 4 – 8 of the brief contending that the trial Court lacked the requisite jurisdiction of determining the suit before it, in that the claim was caught up by the doctrine of estoppels of standing by as provided by Sections 169 and 173 of the Evidence Act. He referred to the case of WAEC vs. Adeyanju (2008) 9 NWLR (pt. 1092) 270 on the attributes vesting jurisdiction on a Court to try a matter before it, contending that the issue of estoppels by conduct means that there is a feature in the case that will prevent the Court from exercising its jurisdiction. He alluded to paragraphs of the affidavit in support wherein it was deposed to, that the land in dispute had been litigated upon previously by the High Court No. 3, and that respondent was aware of the pendency of the action. He argued relying on Nwakonobi vs. Udeorah (2013) 7 NWLR (pt. 1354) 499, that for a Court to hold that the operation of estoppels by standing to effectively come to play, the following must be established:
i. That the judgment has been given in a case over the same matter in which another party had interest.
ii. That the other party knew his rights or interest were being adversely affected; and
iii. That inspite of the knowledge of the suit, the other party did nothing.

Learned counsel maintained that the respondent knew of the litigation in Suit No. NSHC/MN/154/2007 on title to the disputed land, and that judgment was delivered as evidenced by Exhibit A, but the respondent failed to do anything to protect his interest, and therefore his claim caught up by the doctrine of issue estoppels, and referred the Court to Ikotun vs. Oyekanmi (2008) 10 NWLR (pt. 1094) 114. Also alluding to the ruling of the lower Court at page 124 of the record, it was contended that filing a fresh case was not the right option, advising that the option open to the applicant was to appeal the decision as a party interested. Further relying on Ikotun vs. Oyekanmi (supra), it was contended that unlike in res-judicata, a party relying on issue estoppels need not prove that the parties and the res are the same. He goes on to posit that the suit before the lower Court was an abuse of the process of Court, as held in Igbeke vs. Okadigbo (2013) 12NWLR (pt. 1378) 225, thus allowing the respondent to file a fresh suit on the same subject matter instead of appealing, amounted to an abuse of Court process. Finally, counsel posited that the trial Court lacked the jurisdiction to entertain the suit and thereby urged this Court to so hold.

Responding to the submissions, the learned counsel for the respondent contended that for a plea of estoppels to succeed there must be established the following:
i. The identity of the parties,
ii. The identity of the res, namely the subject matter of the litigation;
iii. The identity of the land and the issues in both the previous and present action in which the plea is raised are the same, and the burden is on the party that sets up the defense. The cases of Apata vs. Olanlokun (2013) 7SCNJ 509 AT 526 and Jimoh vs. Akande (2009) 1SCNJ 107 AT 130 were cited on the legal principle.

Learned counsel with respect to the case at hand submitted that the respondent was neither a party nor a witness to the said Chiroma Galadima Lashi sued in the earlier case, and further placing reliance on Dokubo vs. Omoni (2001) FWLR (pt. 61) 1804 AT 1829, counsel drew the Court’s attention and thereby wanted the Court to note that estoppels per rem judicatam or estoppels of record arises where an issue of fact has been determined in a final manner between the parties by a Court with competent jurisdiction on the same issue. Also relying on the definition of privy in the Black’s Law Dictionary 9th Edition, learned counsel submitted that the respondent was not a party in the proceedings of 2007, nor was he privy to it, submitting that estoppels by standing by or conduct will be only presumed when a person by his conduct acts or omits or intentionally caused or permitted another to believe as true a state of fact or event and that that other person acted on it. See Mat Holdings Ltd vs. UBA Plc (2003) FWLR (pt. 183) 146 AT 163.

On abuse of Court process, learned counsel also relied on the case of the PDP vs. Umeh (2017) 2SCNJ 157 AT 184 to canvass that respondent did deny from the counter-affidavit that they are not related to Ciroma Galadima Lashin sued by the appellant in the year 2007, and that he was not aware of the pendency of the case until when judgment was delivered. He argued that those paragraphs of the counter-affidavit not having been countered must be deemed as true and the Court rightly acted on it.

He finally urged the Court to resolve the issue in favor of the respondent.

The undisputable facts which birthed the case before the lower Court involved the plaintiff and the defendant both farmers in a village called Lashin under Shiroro Local Government of Niger State. The plaintiff by his statement of claim claimed that he became aware of the pendency of the judgment against one Ciroma Galadima Lashin over the piece of land, which land covers part of the land which he gave to the said Ciroma Galadima on loan. The defendant on the other hand maintained that he had gotten judgment in respect of the entire land and that the plaintiff was aware of the pendency of the suit but throughout the duration of the trial stood by and refused show any interest and or to protect that interest.

Now Section 169 of the Evidence Act 2011 provides:
“When one person has either by virtue of an existing Court judgment, deed or agreement, or by his declaration act or omission, intentionally caused or permitted another person to believe a thing to be true and upon such belief, neither he nor his representatives in interest shall be allowed in any proceeding between himself and such person or such person’s representative in interest to deny the truth of that thing.”
Section 173 of the same Evidence Act 2011, goes further to provide that:
“Every judgment is conclusive proof as against parties and privies, of facts directly in issue in a 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 that judgment is intended to be proved.”
The doctrine of estoppels by conduct as it is commonly called applies when a person is content to be a spectator rather than a gladiator, an onlooker rather than a player leisurely waiting for the outcome of the battle or play as the case may be. To succeed in the application of the doctrine, it must be shown that the person knew that his rights or interest were being adversely affected and yet chose not to do anything about it.
The party need not be a party in the previous action or qualify as a privy in interest. A non-party could be stopped and thereby be bound by the previous judgment if he knew or ought to have known of the pendency of the previous suit and chose to stand by. Such knowledge is either actual or imputed. See Anyaoke vs. Adi (1986) 3NWLR (pt. 31), Balogun vs. Agboola (1974) 10 SC 111 AT 119, Nwakonobi & Ors vs. Udeorah & ors (2012) LPELR – 9721 (SC). The consequence as stated by Owaode JCA in Chief Ita Okon Aqua vs. Chief David Ekanem (2008) LPELR – 8545 (CA) is that the party would not be allowed to resile from the admission or representation by conduct which he made. In that case, the judgment earlier made would be the conclusion on the matter as against the parties, privies on facts directly in issue in the case actually decided by the Court. This is the intendment of Section 173 of the Evidence Act 2011. See also Chief Amadi Dike-Ogu & Ors vs. Owhonda Frank Amadi & Ors (2008) LPELR – 8659 (CA), Agu vs. Ikewibe (1991) 3 NWLR (pt. 80) 385, Bonny vs. Yougha (1969) 1 ALL NLR 396 AT 401.

In the preliminary objection filed, the applicant therein deposed as follows:-
a. That the defendant/Applicant commenced Suit No. NSCH/MN/154/2007 against one Ciroma Galadima Lashi before High Court No. 3, Minna for a declaration of title to the disputed land subject matter of this suit.
b. That the High Court No. 3, Minna had previously given judgment in favor of the Defendant/Applicant on the same land. A copy of the judgment is hereto attached and marked “Exh A”.
c. That the said Ciroma Galadima Lashi filed a Notice of Appeal dated and filed on 11/3/2014 against the judgment. A copy of the Notice of Appeal is hereto attached and marked “Exh B”.
d. That the Plaintiff/Respondent was aware of the Suit No. NSHC/MN/154/2007 over the disputed land and stood by without doing anything.
e. That the Plaintiff/Respondent and one Jagaba Zarumai through their counsel (Ochai Ogaba Esq) filed a motion on notice dated and filed on 31/3/2014 for the setting aside of the judgment delivered on 5/2/2014 in Suit No. NSHC/MN/154/2007. A copy of the said motion is hereto attached and marked “Exh C”.
f. That the Plaintiff/Respondent was listed as a witness in the Defendant’s list of Witnesses and statement on Oath is hereto attached and marked “Exh D”.
g. That the Plaintiff/Respondent also testified as PW2 in Suit No. USC/KUT/CV/FC/179/2002 in the suit between Ciroma Lashin vs. Ingila Lashi (the Applicant) over the disputed land. The judgment of the Court is hereto attached and marked as “Exh E”.

The Plaintiff responded to the material depositions, as above reproduced having filed a counter-affidavit, wherein it responded to the above deposition as it was deposed to by paragraph 4, that:
a. That the Defendant/Applicant had filed Suit No. NSHC/MN/154/2007 only against one Ciroma Galadima Lashi before High Court No. 3 in Exhibit A, the said Ciroma Galadima Lashi not being in any way related to the Plaintiff/Respondent.
b. That it is not true that the Plaintiff/Respondent testified as a witness for the said Ciroma Galadima Lashi and though a witness’s statement on oath may have been prepared in his name, he was not aware of it and never adopted the same as his evidence as he was never in the Court all through the duration of the trial.
c. That the Exh. D clearly shows that 4 witnesses must have testified for Ciroma Galadim Lashi and the Respondent was not one of them.
d. That the plaintiff/Respondent only got aware of the case after judgment had been delivered and the plaintiff/Respondent as well as one Jagaba Zarumai had engaged Ochai Ogoba. Esq. via Exhibit C, seeking not only to set aside the judgment of the Court, but also seeking for an order declaring them as necessary or interested parties in suit NO. NSHC/MN/154/2007.
e. That following the filling of the foregoing application, the Defendant/Applicant had approached the Plaintiff/Respondent and his children in their village and informed that the Respondent’s land was not a part of the land in dispute covered by the judgment in Exhibit AA’.
f. That Suit No. NSHC/MN/154/2007 was filed by the Defendant/Applicant against Ciroma Galadima Lashi over a parcel of land which Ciroma Galadima Lashi had inherited from his own father.
g. That the land in dispute in the present case is a different parcel of land which the Plaintiff/Applicant had loaned to Ciroma Galaddima Lashi about 50 years ago for farming purposes.
h. That, at any rate, the Defendant/Applicant had confirmed to the Plaintiff/Respondent that the land covered by his judgment in High Court No. 3 did not include the Respondent’s land.
i. That the decision of the Upper Sharia Court, Kuta (Exh. E) did not decide any issue or subject matter in contention between the parties and the Respondent was neither a party nor witness in the case.
j. That the Plaintiff/Respondent had filed the present suit against the Applicant because the Applicant had trespassed into the land given to Ciroma Galadima Lashi on loan on the strength of the judgment of High Court No. 3 which does not cover the Respondent’s land.
k. That Ciroma Galadima Lashi is not related to the Plaintiff/Respondent as clearly pleaded in paragraph 12 of the Statement of Claim.
I. That it is in the interest of justice to dismiss the application so that the Plaintiff/Respondent’s case can be heard on merit.

Evidently, the plaintiff by his own words did admit that a deposition was filed in his name, even though he did not or was not called to adopt it in evidence. There is also the slight contradiction in the counter-affidavit where plaintiff stated that the applicant herein stated that his action does not include his own portion of the land, but still deposed that his plaint was because the objector had trespassed on to his land. A deposition has been defined by the Black’s Law Dictionary, 8th Edition by Garner to mean, a witness out of Court testimony that is reduced to writing for later use in Court, a sworn testimony in writing.

It remains to ask, who is a deponent, or who can depose to an affidavit? This simple question appears to have been treated by this Court in the case of Olaiya vs. Inspector General of Police (2015) LPELR – 40920 (CA) as being any person who qualifies as a competent witness, subject only to the qualifications laid down under Part XI of the Evidence Act, can depose to an affidavit, or witness statement. Thus in Ochekpe vs. Taen (Nig) Ltd (2013) LPELR – 21958 (CA), it was held that any person who is seized of facts constituting a case is competent to give evidence in that regard.

The effect of filing a written deposition duly signed by the deponent presupposes that the deponent without any doubt is seized of the matter and or is well aware of the pendency of the action, and even though not called to adopt that written deposition which he authored, cannot deny the imputation that he is indeed aware of the pendency of the action. This issue is made clearer in the decision of the Apex Court in Ashiru vs. INEC (2020) 16NWLR (pt 1751) 416 AT 442, where it was held that:
“the provision of Section 13 of the Oaths Act requires a deponent to appear physically before the Commissioner of Oaths or the person authorized to administer the oath. Depositions on oath, like sworn affidavits must be sworn before the person authorized to administer it with the deponent himself appearing before the said person authorized to administer oath. A deposition on oath must be signed by the deponent in the presence of the person authorized to administer oaths, failing which the deposition on oath shall be and must be discountenanced.”
See also Chidubem vs. Ekenna (2008) LPELR – 3913 (CA) and Buhari vs. INEC (2008) 4NWLR (pt. 1078) 546 AT 608.
It floats from the above state of the law, unless rebutted, that the signature on the deposition of the plaintiff/respondent not having been rebutted and or shown not to be that of the respondent herein, a strong presumption exists to the effect that he indeed authored the said deposition and therefore it can safely be imputed that he is fully in the know of the action before the Court earlier decided for which he failed to do anything in the protection of his interest.
I am not oblivious of the state of the law to the effect that a trial Court is not entitled to look at a deposition, where such deposition is not in evidence. See Mathew Obakpolor vs. The State (1991) 1 NWLR (pt. 165) 113. That however is not the issue here, for if the plaintiff before the lower Court had knowledge of the earlier suit determined and went as far as deposing to an affidavit, he cannot be believed asserting that he was not in the know about the case earlier filed and concluded, and that he did nothing to protect his interest on the subject of the litigation. This is what the principle of standing by is all about. The lower Court failed to appreciate that material point in its ruling, thereby fell into holding the erroneous view that plaintiff was not aware of the litigation in respect of the land in which Exhibit A was in issue. If I may ask, what was he going to testify on by the way, or is he saying that the deposition filed was so filed without his knowledge. In that case, he did not impugned his signature on the document by way of thumb printing, and or the fact that on the 20th of April, 2010, he appeared before the Commissioner for Oaths to swear to the contents of the deposition. It would be very sad if and that has not been made out though, that a counsel on his own fabricated evidence, fixed the name of the plaintiff, and led the Commissioner of Oaths to sign the process in the absence of the deponent. That would have amounted to gross professional misconduct with the attendant heavy sanction. That scenario fortunately for counsel and unfortunately for the plaintiff has not been made out here, and the presumption which stands is that the plaintiff before the lower Court was well seized of the case before the lower Court having gone as far as filing a deposition, and he cannot under such a circumstance deny knowledge of the pendency of the action. I am inclined to agree with Mr. Ndamitso, relying on Ikotun vs. Oyekanmi (supra) and Igbeke vs. Okadigbo also (supra) that, a party relying on issue estoppels or estoppels by conduct need not prove that the res, the claim and the parties are the same as canvassed by the respondent’s counsel. What stands out is the failure by the respondent to resist and to show his interest in the action determined in the first place, since a party cannot bring or file an action based on an issue that has been conclusively determined by a Court of competent jurisdiction. I also agree that the only option open to the respondent was not to file a fresh case as done here, but to either appeal the decision as an interested party or where the facts support the setting aside of the judgment proceed to so apply. Otherwise, the lower Court lacks the jurisdiction entertaining a matter that has been concluded by a Court of concurrent jurisdiction and I so hold.

It has been held by the Apex Court in Musaconi Ltd vs Mr. H. Aspinall (2013) LPELR – 20745 (SC) that:
“Jurisdiction is therefore of paramount importance in the process of adjudication. Where there is no jurisdiction in a Court to handle or adjudicate on a matter before the Court, everything done or every step taken in the proceedings amounts to nothing. See Attorney-General for Trinidad & Tobago vs. Erichie (1893) AC 518 AT 522, Timitimi vs. Amabebe 14 WACA 374, Mustapha vs. Governor of Lagos State (1987) 2 NWLR (pt. 58) 539, Utih vs. Onoyivwe (1991) 1 NWLR (pt. 58) 539. In other words, jurisdiction is the lifewire of any proceedings in Court and everything done in the absence of jurisdiction is simply a nullity. See Jumang Shelim & Anor vs. Fwendim Gobang (2009) 7SCM 165.”

By the clear provisions of Sections 169 and 173 of the Evidence Act, the jurisdiction of the lower Court was clearly ousted by statute clearly translates to the Court assuming jurisdiction as an exercise either in moot or as an academic exercise but certainly in futility. See Belgore CJN in The Shell Petroleum Development Company of Nigeria Limited vs. Abel I. (2001) LPELR – 3205 (SC), Barclays Bank of Nigeria Limited vs. Central Bank of Nigeria (1976) 6SC 175.

The inevitable conclusion is that there is merit in the appeal and same is hereby allowed by me. The ruling of Aisha A.I.B Bwari J., delivered on the 28th of November, 2010 is hereby set aside, and in its place, strike out suit with No. NSHC/MN/174/2015 for want of jurisdiction.
Appeal allowed.

PETER OLABISI IGE, J.C.A.: I have had the privilege of reading the leading judgment just delivered by my learned brother BARKA, JCA.

I agree with the reasoning and conclusion of my Noble Lord. I adopt them as mine. I agree that the Appellant’s appeal has merit and it is also allowed by me.

The ruling of the lower Court in Suit No. NSNC/MN/174/2015 Coram: AISHA A.I.B. BWARI – J, is hereby set aside. I agree with the consequential order contained in the leading judgment.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment just delivered by my learned brother, HAMMA AKAWU BARKA, JCA.

I equally agree with the reasoning and the conclusion that the appeal has merit. I accordingly allow the appeal and abide by the consequential orders therein.