MALLAM YUSUF JIMOH V MALLAM KARIMU AKANDE
In the Supreme Court of Nigeria
Friday, January 30, 2009
Case Number: SC.159/2002
FRANCIS FEDODE TABAI
IBRAHIM TANKO MUHAMMAD
MOHAMMAD SAIFULLAH MUNTAKA-COOMASSIE
PIUS OLAYIWOLA ADEREMI
ALOYSIUS IYORGYER KATSINA-ALU, JUSTICE, SUPREME COURT
ALOMA MARIAM MUKHTAR, JUSTICE, SUPREME COURT
MAHMUD MOHAMMED, JUSTICE, SUPREME COURT
FRANCIS FEDODE TABAI, JUSTICE, SUPREME COURT
JSC CHRISTOPHER M. CHUKWUMA-ENEH (Lead Judgment), JUSTICE, SUPREME COURT
MALLAM YUSUF JIMOH 2. MALLAM RAIMI ALAPARUN 3. MALLAM YISA ALAPARUN
- M. CHUKWUMA-ENEH, JSC
Delivering the Judgment of the Court
This appeal is against the decision of the Court of Appeal, Ilorin Division (i.e. Court below) delivered on 19/11/2001 upholding the decision of the Kwara State High Court of Justice sitting at Ilorin in its appellate jurisdiction delivered on 27/10/1998, which in turn has allowed the appeal against the decision of the Upper Area Court delivered on 19/3/1998 giving judgment in favour of the plaintiffs (appellants in this court). The appellants and the respondents in this Court are the plaintiffs and the defendants respectively at the trial Upper Area Court.
Aggrieved by the decision of the Court below the appellants (plaintiffs) by a Notice of Appeal dated 15/1/2002 and filed on 17/1/2002 with leave of the court below have raised six grounds of appeal therein.
The appellants and the respondents have filed and exchanged their respective briefs of argument. The appellants in their brief of argument, have distilled two issues for determination and they are as follows:
- Whether the court below was right having regard to exhibits PI, Dl and D2 to have agreed with the High Court that the respondents invocation of Res judicata should succeed based on exhibits D5 and D6, when the Land adjudicated upon in the latter exhibits is distinct from the land in dispute as adjudge in exhibit PI.
- Whether the court below was right to have agreed with the High Court that the judgment of the trial Upper Area Court was not sustainable having regard to the totality of the cases of the parties and the various material contradictions contained in the case of the Respondents.”
The Respondents have all said, distilled a lone issue for determination as follows:
“Whether shorn of all pretensions the evidence adduced on which the germane findings of the lower court were based by both parties, the judgment of the Lower Court was sound and unassailable”.
The facts of this matter as gleaned from the Record of the Upper Area Court and as given by both parties in their testimonies as would be expected in a land matter of this nature have diverged in major particulars. This case having been started in a Native Court i.e. the Upper
Area Court holden at Ilorin, as the trial Court, this Court has to look at the entire proceedings before the Upper Area Court in order to ascertain the nature of the case adjudicated upon by the said trial Upper Area Court. The plaintiffs claim as presented by one of them is that:
“My claim before the Court is that of trespass on my land lying at Jaju Olosunde against the Defendant”.
The 1st Defendant before the joinder of the 2nd and 3rd Defendants (Respondents) has answered the Plaintiffs’ claim thus:
“I deny liability to the plaintiffs’ claim”.
The 1st plaintiff has concluded his evidence before the Upper Area Court thus:
“I want the Court to drive the Defendant away from my land and collect the cost of my locust bean (sic) which he plucked”.
The 3rd Plaintiff in like manner has concluded his evidence thus:
“I want the Court to restain the Defendant and his people from trespassing on our land. I also want the Court to give us our land”
The 2nd Defendant who with the 3rd Defendant have been joined after the conclusion of the 3rd Plaintiffs evidence has in his testimony claimed that:
“The land of Jaju Ogbagede belongs to Are Ogele who gave Olosunde the land for farming purposes.”
In concluding his evidence the 2nd Defendant has contended that:
“Since the Plaintiffs have refused to pay tributes to us, I urge the Court to evict them from our land and later, I have told the truth, Are Ogele is the owner of the land where the Plaintiffs are staying.”
The foregoing abstracts of the proceedings before the trial court, have put in perspective the Plaintiffs’ claim and the Defendants’ Counter-Claim in this matter on the front burner. I may subjoin further facts to the effect that the Plaintiffs in their claim have identified the land in dispute as Jaaju Olosunde on which their great ancestor one Olosunde was settled by one Oba Seberu (an Emir of Ilorin) many years ago for his part for having fought off the warriors of some Yoruba troops threatening the said Oba. Olosunde it is alleged had 2 children namely – Momoh Jimoh and Ajani and that he partitioned his land between them. The Plaintiffs’ claim is that the Land in dispute is that part of the Olosunde’s land given to Momoh Jimoh. The land in dispute according to the Plaintiffs has stretched from Oke Olode to Odo Jaaju Olosunde to Kukute Ogun where it has boundary with Magaji Baboko. It has also stretched to Igbo Efon, Ori odi to Alaja and then to Apata Ofunfun. It is alleged that they have exercised maximum acts of ownership and possession including farming and letting portions of the said land to customary tenants. They have tendered exhibits PI, Dl and D2 as evidence that the said land does not form part of the land of the Respondents and further to show that in official circle the said land is known as Jaaju Olosunde and is a distinct parcel of land to the land Jaaju Gbagede as claimed was decided in favour of the Defendants (Respondents) in Exhibits D5 and D6.
The Respondents on the other hand, while denying the Plaintiffs’ claim over the land in dispute have counter-claimed that the land in dispute on which their progenitors have been
settled by the leave of another Emir of Ilorin many years ago is their land over which they have exercised dominion to the exclusion of the Plaintiffs and their privies for many years by exercising acts of ownership and possession including farming and letting portions to customary tenants to farm for tributes.
The Defendants have tendered exhibits D3 to Dll and have particularly relied on D5 and D6 to plead the defence of Res judicata. They have identified the land in dispute as covering a wide area from Odo Omoto to Odo Eleran to Olofe, Apata Funfun, Odo Alaja and Oke Jaaju. As the main thrust in this appeal is on the perspective of whether or not the plea of Res judicata raised on exhibits D5 and D6 by the Respondents is sustainable on the backdrop of the legal evidence before the court; I think the facts as adumbrated herein will suffice to decide this appeal in that context. It is important however, to note that the Upper Area Court also carried out a visit to the locus in quo and made valuable notes of the same. It is evident from the visit that the parties know the land in dispute notwithstanding its being differently described as to its name and boundaries by the parties in their testimonies before the Upper Area Court.
The Plaintiffs (the Appellants) as I said above have filed a brief of argument and they have therein strongly contended that the import of exhibit PI, which is the decision of a contempt proceeding initiated against the 2nd and 3rd Appellants by the 2nd Respondent decided in the Appellants’ favour has been ignored by the two lower courts hence the misconception of the Appellants’ case resulting in upholding the Respondents’ case on the availability of Res judicata to defeat the Appellants’ claim. This has been exacerbated they contend by also not having taken exhibits Dl and D2 into account by the lower court. These two exhibits it is alleged have been tendered to show that the land in dispute that is, Jaaju Olosunde is so known and called in official circle. It is their case that exhibit PI has showed that Jaaju Olosunde is also differently situated to the land Jaaju Gbagede adjudged in exhibits D5 and D6 in favour of the Respondents to clearly make the principle of Res
judicata inapplicable to this case. They rely on Alade v. Olukade (1976) 6 sc.183, Akere v. Adesanya (1993) 4 NWLR (Pt.288) 484 at 497, Kimdey v. Military Governor of Gongola State (1988) 3 SCNJ 28 at 57 and Allen v. Odunheko (1997) 5 NWLR (pt. 506) 638 at 648 for so submitting. They have also alleged want of fair hearing in addition to saying that Section 227 (2) of the Evidence Act should not have been invoked by the court below in the circumstances as it is inapplicable to negative the impact of the challenge of failing by the lower court to consider exhibits PI, Dl and D2 tendered by the Appellants to boost their case against Res judicata. They refer to the cases of Nnamani v. Nnamani (1996) 3 NWLR (pt.438) 591 at 597 and Jimoh Akin-folarin & ors. v. Solomon Oluwale Akinola (1994) 4 SCNJ 30 at 46 to lay emphasis on the binding effect of exhibit PI on both parties to this suit regardless of the status of the court that has given the decision and further to contend that flowing from it the Respondents are estopped from raising the issue of Res judicata even as they have not appealed against the decision in exhibit PI. They rely on Asuquo v. Chief James Ntukidin & Ors. (1993) 2 SCNJ 33 at 42 again, to contend even then that as the boundaries of the land in dispute in exhibits D5 and D6 have not be clearly defined by available evidence and that in the absence of a plan that the plea of Res judicata, cannot avail the Respondents. And moreso, as the findings based on the visit to the locus in quo by the Upper Area Court in the instant case and as per exhibit P1 have conclusively showed that the land – Jaaju Olosunde is differently situated to the land Jaaju Gbagede which is the land in dispute as found even by exhibit PI, hence the rejection of the plea of Res judicata by the Upper Area Court. And so, they have relied on Ike v. Ugboaja (1993) 6 NWLR (Pt.301) 539 at 554 – 556 and Oloriegbe v. Omotesho (1993) 1 NWLR (Pt.270) 386 at 397 – 397 to outline the conditions for the application of the principle of Res judicata to include that:
- The parties in the previous suit and the present one must be the same as well as the issues litigated upon and settled in both suits.
- There must be a judgment of a court of competent jurisdiction on the matter.
- As the instant action concerns land – that the land here and in the previous suit must be the same.
They submit that the Defendants (Respondents) have not discharged this burden on them to sustain the plea of Res judicata.
They further submit that neither the parties nor the land in dispute are the same in both suits in this matter and that the land in exhibit PI is not the same as the land in dispute in exhibits D5 and D6 which evidence, they contend is clearly supported by exhibits Dl and D2. And that further to the cases of Igwego v. Ezeugo (1992) 6 NWLR (Pt.249) 561 and C.S.T.W.U. v. A.W.U.N. (1993) 2 NWLR (Pt.273) 63 at 72 relied on by the Respondents that the principle of Res judicata strenuously canvassed by the Defendants (Respondents) is inapplicable here.
The Appellants have also canvassed that in principle the findings of facts of a customary court as by the instant Upper Area Court and as encompassed in exhibit PI should not be hastily railroaded over and have in this regard referred to Emariera v. Ovirie (1972) 2 SC.31 at 42 per Udoma JSC and has also relied on Nkoko v. Akpaka (2000) 7 NWLR (Pt.664) 225 at 241 to highlight the consequences for breaching of this common principle by the two lower courts.
On issue 2, the Appellants have raised the issue of Exhibits Dl and D2 although excluded by the lower court as being extraneous to this case, have been tendered, as contended by the Appellants, to show that the land in dispute is known in official circle as Jaaju Olosunde in
contrast to Jaaju Gbagede as the Respondents have seemed to be contending here. The said exhibits are therefore material. And these exhibits being tax receipts of one Akano bearing Olosunde, it is submitted by Appellants are not extraneous that is, irrelevant to the Appellants’ case and that it is perverse to so hold by the Lower Court. See: Aina v. UBA Plc (1997) 4 NWLR (Pt.498) 181 at 289. They further submit that as there has been a clear conflict in oral evidence of the parties as to the correct name by which the land in dispute is otherwise known, that exhibits Dl and D2 ought to have been used to assess the veracity of the oral testimonies of the parties in this regard. They have therefore opined that on the authorities of Alade v. Olukade (supra), Kimdey v. Military Governor, Gongola State (supra), Olujinle v. Adeagbo (1988) 2 NWLR (Pt.75) 238 at 254 and Allen v. Odunheko (1997) 5 NWLR (Pt.506) 638 at 648 that the Lower Courts erred to have ignored exhibits Dl and D2; their effect would otherwise have put to rest the issue of Res Judicata as inapplicable to this case.
The Appellants on their case on the five methods of proving ownership of land as enunciated in the case of Idundun v. Okumagba (1976) 9-10 SC.227 have contended that on the evidence of the Appellants and their witnesses and the findings of the trial court thereupon that the holdings of the lower courts setting aside the decision of the trial Upper Area Court which saw, heard and watched the witnesses is perverse and ought to be reversed.
The Appellants have therefore urged the court to allow the appeal restore the findings of fact of the trial Upper Area Court which it is submitted is unassailable in the circumstances and so resolve issues 1 and 2 in the Appellants’ favour.
The Respondents have filed a joint brief of argument in this matter and therein, firstly, have raised a preliminary objection, indeed as rightly identified by the Appellants in their reply brief of argument on the following grounds:
(1) That the appeal itself is incompetent by virtue of Order2 Rule32 of the Supreme Court Rules.
(2) That grounds 3 and 5 are incompetent having been directed against an admixture of the decisions of the High Court and the Court of Appeal, and
(3) That ground 1, 2 and 4 are argumentative or narrative and vague and contrary to Order 8 Rule 2(3) and (4) of the Rules of this court.
The Appellants in their joint reply brief have dealt in full with the questions raised in the objection. They have outrightly condemned and denounced the objection, on the whole, as most unwarranted, devoid of merit and I see no reason not to agree with them as I proceed to state my observations. However, the nature of the questions raised in the objection dictate that the said grounds be set out even if without their particulars excepting grounds 3 and 5 for ease of reference and for further reason appearing hereinafter and they are as follows:
“The Court of Appeal misdirected itself in fact in holding that:
“As I stated earlier, the claim in the present suit is for trespass on a piece of land lying at Jaju Olosunde. The defence claimed that the land in dispute is called Jaaju Gbagede. From all I have said hereinbefore, it is evidence that the claim in the present case is in respect of the same parcel of land which was the subject of litigation in Exhibit D5. The appellants in the present case claim on behalf of the descendants of Olosunde and the respondents claim on behalf of the descendants of Are Ogele.”
“2. The Court of Appeal erred in law in upholding the High Court’s view that the defence of res judicata was applicable to the case thereby affirming the judgment of the High Court.
- The parties in exhibits D5 and D6 were not the same with the parties in this case.
- The subject matter in the said exhibits is different from the subject matter of this case.
- The appellants were not privies to the parties on the said exhibits.
- The land in dispute in this case is distinct from the land covered by exhibits D5 and D6.
- The Court of Appeal erroneously upheld the defence of res judicata in the circumstances.”
“3. The learned Justices of the Court of Appeal erred in law in holding that:
I agree with the learned SAN’s contention that it is the duty of a trial court to consider every evidence led in support of an issue. In this case even if the High Court had considered the exhibits, the respondent’s case for the reasons I have given above would have been strengthened the more. In any case, by virtue of section 227(2) of the Evidence Act, the wrongful exclusion of evidence shall not of itself be a ground for the reversal of any decision in any case if it shall appear to the appellate court that had the evidence so excluded been admitted it may reasonably be held that the decision would have been the same. Bank of the North Ltd. vs. Alhaji Abba Satonmi Salek (1999) 9 NWLR (Pt.618) 331.
In the light of all these, in my considered view, there is no miscarriage of justice.
- Exhibits PI, Dl and D2 did not anyway strengthen the respondent’s case.
- The Court of Appeal did not place the correct construction on exhibits PI, Dl and D2.
- The Court misapplied the provisions of section 227(2) of the Evidence Act in the circumstances.
- The holding of the Court of Appeal has occasioned a grave miscarriage of justice on the appellants.
- The Court of Appeal erred in law in failing to pronounce on the appellants’ complaint of contradictions in the respondents’ case thereby abdicating its judicial responsibility.
“6. The Court of Appeal erred in law by confirming the views of the High Court when it tampered with the various sound findings of fact made by the trial Upper Area Court without any justifiable reason thereby occasioning a miscarriage of justice against the appellants.
- The findings of the Upper Area Court that were tampered with were sound and impeccable.
- There were no legal or factual basis to have upturned the findings of fact of the trial court nor confirm the tampering by the High Court.
- An appellate court does not make a practice of disturbing findings of fact of a trial Court.”
I now return to the first ground of the 3 grounds of the preliminary objection as set out above in this matter. On the broad question of the incompetence of the appeal itself, this point is taken by the Respondents Under Order 2 Rule 32 of the Supreme Court Rules, there can be no doubt, however, that the Respondents have totally misconceived not only the import but also the purport of the Rule itself, that is, as vis-a-vis the provisions of Section 233(2) of the 1999 Constitution and as regards decisions of the court below that have to be appealed from as of right as against decisions appealable from with leave of the court below or the court. See Section 233(3) of the 1999 Constitution; and I may observe that the provision of Rule 32 of Order 2 of the Rules of this Court applies:
“where, in an appeal to the court from the court below, the court below has affirmed the findings of fact of the Court of first instance any application to the court in pursuance of its jurisdiction under Section 233(3) of the Constitution for leave to appeal shall be granted only in exceptional circumstances.” (underlining mine for emphasis).
The provision of the above Rule couldn’t be clearer and unequivocal and literally construed is to further facilitate the application in practice of the provision of Section 233(3) of the 1999 Constitution. This means that appeals to the court on questions of mixed law and facts or facts alone in which case, leave is a pre-condition, have to be predicated on a
prior leave obtained from the court below or the court. Where, however, in addition there have been a concurrent findings of facts by the two lowers court, based on the age long principle of the court, the court would not otherwise interfere with such findings of facts of both lower courts except as stated in the said Rule “in exceptional circumstances”. This principle has to be and been exercised judicially based on the peculiar facts of each case that is to say, with regard to what constitutes exceptional circumstance. There is no doubt that this is clearly the case (as in the instant case as rightly held by the two lower courts) where the decision appealed from has occasioned a miscarriage of justice or otherwise has been made in error including want of jurisdiction. Respectfully, there is also a clear misapprehension of the working relationship between the said Rule 32 of Order 2 of the Rules of this court dealing with practice and procedure and the provisions of Section 233 of the 1999 Constitution dealing with the substantive law.
The court in Ojemen v. Momodu II & Ors. (1983) NSCC 135 has put it beyond per adventure that leave is a condition precedent to appealing under Section 233(3) of the Constitution. As far as leave to appeal to the court is concerned the general power of the court to entertain it is as per the constitutional provision as contained in Section 233(3). This power cannot be superseded, whittled down or otherwise enlarged by the provision of Order 2 Rule 32 of the Rules of this Court.
The Respondents appear to have missed this crucial point; even then, I agree with the Appellants that construing the said Rule literally again, as rightly urged by the Appellants and even so as the said provision is not ambiguous, the meaning of “the court of first instance,” that is, the court that first heard the matter in the hierarchy of the courts is in this context the Upper Area Court; it cannot be the instant High Court sitting in its appellate jurisdiction (as the Respondents appear to be contending) in which case, the said rule is inapplicable to the instant High Court on the face of the facts and circumstance peculiar to this case. This ground of objection must therefore fail. And I so hold.
The objection against grounds 3 and 5 of the grounds of Appeal respectfully is again misconceived. I have set out grounds 1 to 5 of the grounds of appeal above (leaving out ground 6) that is to say, without their respective particulars as regards ground 1, 2 and 4. The two grounds of 3 and 5 are grounds of law and under Order 8 Rule 2(2) of the Rules of this Court have to be particularized. It is a total misconception by the Respondents that the two grounds which have not been otherwise challenged as grounds of law to ever contend that the grounds are severally ex facie predicated on the decisions of the High Court and not the Court of appeal. Respectfully this is far from being correct. This misapprehension is not evident from reading these grounds. It is clearly provided that the court has no jurisdiction to entertain appeals directly from the decisions of the High Court. See Section 233(1) of the 1999 Constitution. And it is so in this instance. These grounds and their particulars are set out above and are clear and unequivocal. Even moreso the respective particulars of error to grounds 4 and 5 have spelt out as clearly the decision being appealed from and they challenging the decision of the court below.
Furthermore, the combined reading of grounds 3 and 5 with their respective particulars of error is further conclusive of the fact that it is the decision of the Court of Appeal and not that of the High Court sitting as an appellate court, that grounds 3 and 5 are impugning. This objection also fails.
Finally, on the third point taken in the objection, I have read the said grounds 1, 2, and 4 of the grounds of appeal, and I hold that in my view they have been couched in conformity with Order 8 Rule 2 (2) of the Rules of the Court requiring that misdirection or error in law must be particularized. I do not find the grounds vague or at large; they are competent grounds for that matter. In the result I overrule the preliminary objection as most frivolous in the circumstances and should otherwise be mulcted in costs for its frivolity.
The Respondents in their brief have also presented a case in the alternative in event of their objection being overruled. In it they have traced the devolution of the land in dispute from their forebears to the 2nd Respondent the Are Ogele who has been putting in caretakers (Baale) on the land in dispute to collect tributes. It is contended that although the appellants know the land in dispute as Jaaju Olosunde, the Respondents on the other hand, have known it as Jaaju Gbagede which has devolved to them from their forebears. They contend that the 3rd Appellant under cross-examination has conceded the point that the land in dispute is known as Jaaju Gbagede.
The 2nd Respondent the incumbent Are Ogele has not only denied the Appellants’ claim here but also has counter-claimed on behalf of the Respondents the land in dispute against the Appellants. It is their case that the land in dispute known as Jaaju Gbagede has been the subject of a number of civil litigation as per in exhibits D3 and Dl 1 which have upheld their ownership of the land in dispute and that the present suit is caught by the principle of Res judicata as per exhibits D5 and D6 as the land in dispute has been previously litigated upon as per these exhibits. As regards exhibits Dl and D2 tendered through DW3, they are personal Tax Receipts of one Akano for the year 1970/71, they submit they have no bearing on this case even though these exhibits Dl and D2 bear Jaaju Olosunde. The Respondents in this regard have submitted that these exhibits have been rightly treated by the Lower Court as irrelevant evidence to this case. They have, in support of their case and claim i.e. the Respondents referred to exhibits D3 – Dl 1 to establish that the land in dispute from years back has been adjudicated upon in several court actions and that their judgments have always upheld the land in dispute in the Respondents’ favour.
The Respondents have gone at length to use exhibits D3-D1 1 to show that the land in dispute, in the instant case, the parties and issues in both the suit as per the exhibits D5 and
D6 are the same as in the present suit. The point is made that there is no credible evidence of the boundary between Ajani and Momoh Jimoh to establish the Appellants’ case that the land in dispute is that part given to him by Olosunde and thereby establish the partition of Olosunde’s land between Ajani and Momoh Jimoh, his two sons; nor have Ajani’s children showed their lack of interest in the subject matter of this suit. And so, they strongly contend that there has not been any partitioning of the land in dispute between the two children of Olosunde. See Clay Industry (Nig.) Limited v. Aina (1997) 8 NWLR (pt.516) 228. And on the burden of proof in this regard (i.e. of the partition) they rely on Ajayi v. Pabiekun (1970) ANLR 146 at 149 to contend it rests squarely on the Appellants who have alleged it but have failed to prove it. They have therefore submitted that the Appellants having failed in this regard have failed to disprove the Respondents’ claim that the land in dispute as per exhibits D5 and D5 decided in the Respondents’ favour is the same land being relitigated upon in the present suit as well as the parties thereto, and that the land in dispute belongs to the Respondents as per exhibits D5 and D6.
On the lower court’s failure to consider exhibits PI, Dl and D2 as has been contended by the Appellants, the Respondents contend that admitting exhibits PI, Dl and D2 in evidence does not ipso facto prevent an appellate court as the lower court from discountenancing that evidence and refers to Order 8 Rule 3(1) and 12(1) of the Supreme Court Rules (as Amended) as to the power of the lower court to do so and Sho v. Ape (1998) 8 NWLR (Pt.562) 492 at 505 and further has opined that these exhibits have been introduced in the case simply to confuse the court, a disposition condemned in Odofin v. Oni (2001) FWLR (Pt.36) 807 at 818 (2001) 2 SCM, 64 and Eboade v. Atomesin (1997) 5 NWLR (Pt.506) 490 at 505.
They also submit that some very crucial holdings binding on the appellants to the effect that exhibit PI cannot alter nor vary in anyway the contents of Exhibits D5 and D6 and that Exhibits Dl and D2 have no nexus with Exhibits D5 not having been appealed specifically
still stand against the appellants notwithstanding whether or not the Appellants have succeeded in this appeal. See: Lepede v. Sonekan (1995) 1 NWLR (Pt.374) 668 at 685 and Olukoga v. Fatunde (1996) 7 NWLR (Pt.462) 5 16 at 528C.
In conclusion, they reiterate that the Respondents have made out a case for the principle of Res judicata to apply to this case and have therefore, urged the court to rely on Section 54 of the Evidence Act to uphold the Respondents’ case here as the Appellants have not otherwise established their case on a preponderance of evidence and, more particularly on the partitioning of the land in dispute between Olosunde’s two sons which the Appellants have woefully failed to establish, and this has done great damage to the appellants’ case. See: Venderpuje v. Gbadebo (1998) 3 NWLR (Pt.541) 271 at 279, Ladimeji v. Salami (1998) 5 NWLR (Pt.548) 1 at 45 and Ukafebu v. Ugorji (1991) 6 NWLR (pt.196) 27.
The court is urged to resolve the lone issue in the Respondents’ favour and dismiss the appeal.
I have now rounded off the review of the cases of both parties to this appeal. Respectfully, I think this appeal is poised to be resolved on determing the sole issue of Res judicata without more and I go on to do so here. The issue of Res judicata as can be seen from the foregoing proceedings has pervaded the entire cases of the parties as presented in this matter. It is on the front burner so to speak. I seem to agree with the Respondents that there is enough materials to enable the court pronounce effectively on the issue. It is established in the case of Nwajueba v. Ahabua & Anor. (1974) NSCC (Vol.9) 617 and, if I may restate, that where the principle of Res judicata applies to conclude the plaintiffs case that it would serve no useful purpose for the plaintiff to continue to lead further evidence in the case. It is not an uncommon practice in that instance for the Defendant relying on the principle of Res judicata to move the Court to have the Plaintiffs claim dismissed peremptorily on the ground of Res judicata even without
the court having to hear oral evidence at all from the Defendants. In this matter, I have in addition to the record of appeal the advantage of both the briefs of the parties and their oral submissions in court.
Again, I think it would be correct to say here that where the principle of Res judicata has been pleaded in a case that its full effect is to oust the jurisdiction of the court to hear the present matter before it as it is predicated on issue(s) or subject matter that has been adjudicated upon previously. In such cases it is permissible where the cases of parties are as clear as here that the issue of Res judicata ought to be disposed of first as it would save valuable time of the court as it touches on the jurisdiction of the court. And this is moreso where it disposes of the entire matter and even as here, the appeal completely.
This has been pointed out per Aniagolu JSC in Egbe v. Adefarasin 1 WSCC (Vol.18) l at 9 para.45 on the issue of Limitation under Section 10 of the 1973 Laws of Lagos State raised by the defence that no useful purpose will be served in dea