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UBA & ANOR v. AUTA (2021)

UBA & ANOR v. AUTA

(2021)LCN/15684(CA)

In the Court of Appeal

(GOMBE JUDICIAL DIVISION)

On Friday, June 18, 2021

CA/G/402/2017

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

1. JONATHAN UBA 2. JORAM KALAWA APPELANT(S)

And

BORE AUTA RESPONDENT(S)

 

RATIO

THE DOCTRINE OF RES JUDICATA

Res judicata, as a defence to a claim is derived from the Latin term “Res judicata”. It means a matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by Judgment – Black’s Law Dictionary, Tenth Edition. The rule is that a final Judgment rendered by a Court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action.
Estoppel per rem judicatam is a rule of evidence whereby a party (or his privy) is precluded from disputing in any subsequent proceedings, matters which had been adjudicated upon previously by a competent Court between him (or his privy) and his opponent – Section 59 of the Evidence Act, 2011. A party raising a plea of estoppel per rem judicatam is in fact urging the Court before which it is raised not to consider the issues in the case anew, the issues having been previously adjudicated upon by a competent Court – Okposin V Assam (2005) LPELR-2521(SC) 26, A-C, per Oguntade, JSC. 
Thus, the essential features of this doctrine are:
1) An earlier decision on the subject matter and issue(s) from a Court of competent jurisdiction;
2) A final Judgment on the merits; and 
3) The involvement of the same parties or parties in privy with the original parties.
The issue of estoppel per rem judicatam/res judicata is based on the principle of the necessity to have an end to litigation in respect of the same res and between the same parties or their privies. See Ntuks V NPA (2007) LPELR-2076(SC) 25, C-F, per Tobi, JSC; Adeyemi-Bero V Lagos State Dev. Property Corp. (2012) LPELR-20615(SC) 77, C-D; Olukoga V Fatunde (1996) LPELR-2623(SC) 20, F.
Where a Court of competent jurisdiction has finally settled a matter in dispute between parties, neither the parties nor their privies may re-litigate that issue as under the guise of bringing a fresh action since the matter is said to be res judicata. The Supreme Court in Ajiboye V Ishola (2006) 13 NWLR (Pt. 998) 628 was clear on the law that where an issue of fact has been judicially determined in a final manner between the parties or their privies, such issue cannot be re-litigated in a subsequent suit.
This Court also had occasion to pronounce on the law in Edilcon Nig. Ltd V UBA Plc (2012) LPELR-20102(CA) 31-32, B-C, per Sankey, JCA as follows:
“It cannot be disputed that where a cause of action in a present suit has been determined in a previous action between the same parties, that cause of action becomes merged in that Judgment; transit in rem judicatam. It is a rule of public policy that no one shall be vexed twice on the same ground or for one and the same cause of action and on the same issues… It is also an application of the rule of public policy that it is for the common good that there should be an end to litigation, that is to say, interest rei publicae ut sit finis litium… The plea of res judicata operates not only against the parties, but also against the jurisdiction of the Court itself. It 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. The parties affected are estopped per rem judicatam from bringing a fresh action before any Court on the same cause and on the same issues already pronounced upon by a Court in a previous action.”
PER SANKEY, J.C.A.

WHETHER OR NOT JUDGES OF THE HIGH COURT OF A STATE HAVE EQUAL POWERS AND ARE OF CORDINATE JURISDICTION
In addition, the law is settled that the learned Judges of the High Court of a State have equal powers and are of coordinate jurisdiction – Section 270 of the Constitution. A Court of coordinate jurisdiction has no constitutional power to sit as an appellate Court in another case and review and/or adjudicate on a decision or order made by another Court of the same hierarchy. In Gani V AG Lagos State No. 1(1989) 3 NWLR (Pt. 112) 707, 774, the apex Court held:
“The presumption has always been that the decisions of a superior Court are within jurisdiction and are correct until the contrary is proved. It seems to me that even if the decision of the superior Court is a nullity, the only proper way of challenging such decision must be by an application before the very Court which tried the case or by an application to the appropriate appellate Court. Even if the Judgment Longe J., were a nullity, the proper way to set it aside is by an Appeal not by a review before a Court of coordinate jurisdiction… It seems to me that in view of the provision of the Constitution which carefully shares jurisdiction to the various Courts…, only the Court vested with the the particular jurisdiction can interfere with the decision of another Court.”
PER SANKEY, J.C.A.

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice Gombe State, in appeal no. GM/33A/15 delivered on 12th January, 2017, Coram: Sa’ad Mohammed, J. and S.Y. Abubakar, J., which set aside the decision of the Upper Area Court Billiri delivered on 11th June, 2015, in Suit No. JUD/BUAC/BR/CVF1/78/012 in an appeal at the instance of the Respondent herein. Displeased with the decision, the Appellants appealed to this Court on five (5) grounds as contained in their Notice of Appeal dated 23rd March, 2017.

The facts leading to this appeal are compactly as follows: The Appellants commenced this action against the Respondent before the Upper Area Court (UAC) Boh, sometime in 2007. Therein, they sued the Respondent in a representative capacity in respect of two farmlands, one at Lanteme and the other at Shirang. Therein, they claimed both farmlands to be their commonly inherited properties. The Respondent denied the claim and asserted personal ownership of the two farmlands in question.

The Upper Area Court Boh, without taking evidence, proceeded to deliver judgment over the claim on 01-04-08, wherein it declared the two farmlands as inherited clan’s land. Aggrieved with the decision of the UAC Boh, the Respondent appealed to the High Court of Justice Gombe which Court, after hearing the parties, entered Judgment on 17-03-09. Therein, it set aside the decision of the UAC Boh and ordered a retrial before the Upper Area Court (UAC) Kaltungo.

At the Upper Area Court (UAC) Kaltungo, the Respondent (as Defendant before that Court), raised an objection to the jurisdiction of the UAC Kaltungo to try the matter on the ground of res judicata whereof the said Court sustained the objection and struck out the matter.

The Appellants aggrieved, appealed against the ruling of the Upper Area Court Kaltungo to the High Court of Justice Gombe, which Court in its Judgment delivered on 17th April, 2012, set aside the decision of the trial Court and ordered yet another retrial of the matter before the Upper Area Court (UAC) Billiri.

At the conclusion of the trial before the Upper Area Court (UAC) Billiri, the said Court entered judgment in favour of the Appellants in its decision dated 11th June, 2015. Yet again dissatisfied with this decision, the Respondent successfully appealed to the High Court of Justice Gombe State which Court set aside the judgment of the Upper Area Court Billiri on the ground of res judicata on 12th January, 2017. Once again disgruntled, the Appellants have approached this Court vide an Appeal dated 23rd March, 2017, wherein they complained on five (5) Grounds. Therein, they sought the following reliefs:
A. “Allow the Appeal.
B. Set aside the judgment of the lower Court sitting on appeal in appeal no. GM/33A/15 delivered on the 12th January, 2017.
C. Restore the well-considered judgment of the trial Court in suit no. JUD/BUAC/CVF1/78/012 delivered on the 11th June, 2015 or strike out the suit at the trial Court for want of jurisdiction.”

At the hearing of the appeal on 22nd March, 2021, learned counsel for the Appellants, Emmanuel Nwaekwe Esq., adopted the submissions in the Appellants’ brief of argument filed on 12-11-20 but deemed duly filed on 19-01-21 and the Appellants’ reply brief of argument filed on 25-01-21, both brief settled by the same counsel, in urging the Court to allow the appeal and grant the reliefs as prayed in the Notice of Appeal.

In like vein, learned counsel for the Respondents, A.Y. Galadima Esq., adopted the Respondent’s brief of argument filed on 18-01-21 but deemed properly filed on 19-01-21 in urging the Court to dismiss the appeal. He also urged the Court to discountenance the Appellants’ reply brief of argument as it simply re-hashed the arguments in the appellant’s brief of argument.

The Appellants, in their brief of argument, nominated two issues for determination of the appeal, which issues the Respondent adopted. The appeal shall therefore be determined on the issues agreed by the parties. They are as follows:
A. “Whether res judicata was properly applied in the circumstances of the case. (Grounds 1 and 2)
B. Whether the lower Court evaluated the evidence on record to sustain the setting aside of the trial Court’s Judgment. (Ground 4)”

No issues having been distilled from Grounds 3 and 5, they are deemed abandoned.

ARGUMENTS 
Issue one – Whether res judicata was properly applied in the circumstances of the case. Under this issue, learned counsel for the Appellants submits that their contention has been that the land, the subject matter of the appeal, is family land originated by their progenitors, Donem and Shegshege whereas the Respondent contends that he owns the land in dispute personally vide inheritance from his father.

Counsel contends that the lower Court relied solely on the fact that the parties and subject matter are the same in the previous and present cases in arriving at its decision. He relied on the decision in Abiola V & 7 Up Bottling Co. Ltd (2012) 15 NWLR (Pt. 1322) 184 for the conditions for a successful plea of res judicata. Based on this, counsel argues that the parties and the subject matter are not the same.

In respect of the subject matter, counsel contends that in the previous cases, the issue was in respect of a declaration of title to land in favour of the Plaintiffs whereas in the present case, the issue before the trial Court was for the distribution of the estate. He refers to the previous judgments of the various Courts in Exhibits D, E, F and H to submit that there was no decision as to whether the land was family land or personal land, and that there was no judgment in which the names of Jonathan Uba or Joram Kalawa were mentioned.

Counsel submits that the circumstances of the case do not suggest the application of the doctrine of res judicata. However, that even assuming the parties are the same, the dispute between the parties was in respect of the distribution of their mutual family inheritance. He submits that the trial Upper Area Court Billiri properly appreciated this in its findings. Based on this, Counsel urged the Court to resolve this issue in favour of the Appellants.

In response, learned Counsel for the Respondent submits that the plea of res judicata was raised by the Respondent in his response to the Appellants’ claim wherein the Respondent contended that he had previously litigated with the present Appellants and/or their privies in a series of litigation on the same subject matter and that title was conferred on him. He relies on Okposin V Assam (2005) 131 LRCN 2570, 2584 for the conditions to be satisfied to sustain a plea of res judicata. Counsel contends that the Respondent successfully discharged the burden on him to prove and sustain the plea of res judicata in his evidence as DW2. Therein, he gave evidence in respect of the following:
I. Suit No. KUAC/CVF1/48/96 between Bore Auta V Samdel Kalawa & 3 others before UAC Kaltungo over the farmland at Lanteme and it was confirmed to him in the Record of proceedings – Exhibit D;
II. Suit No. 232/97 before Area Court Kaltungo over the two farmlands now in dispute, which was transferred to UAC Kaltungo in Suit No. KUAC/KT/CVF1/9/98 between Sgt. Landa Kalawa & 4 Ors V Bore Auta, Record of proceedings tendered as Exhibits E & E1; and
III. Suit No. GM/11/2006 – Kalawa Sekseke & 3 Ors V Bore Auta Sekseke, before the High Court of Justice Gombe State, wherein Landa Kalawa & Ors again sued him, (Bore Auta), in respect of the same two farmlands. That Court held that the matter was res judicata and struck it out. The Statement of claim, Statement of defence and ruling of the High Court of Justice Gombe was tendered and admitted in evidence as Exhibits F, G & H.

Counsel submits that the Respondent, as DW2, testified that Samdel Kalawa, Landa Kalawa and the 2nd Appellant, Joram Kalawa are biological siblings from the same parents while the 1st Appellant, Jonathan Uba is the biological son of Umaru Paling. The 1st Appellant, as PW5, admitted the previous series of litigation in Exhibits D, E and E1, as well as Exhibits F, G and H. PW5 also admitted their relationships with the Plaintiffs and/or the Defendants in the previous serial litigation. Counsel therefore submits that, there being no dispute as to the existence of the previous successive or sequential litigation as asserted by the Respondent, the only question that could arise is: whether or not the conditions for the operation of res judicata were satisfied, i.e. whether the parties, issue and subject matter are the same in the previous suits as in the present suit, and whether the previous suits were decided with finality by Courts of competent jurisdiction.

Following an in-depth analysis of the previous suits in this regard in his brief of argument, counsel submits that the Plaintiffs, now Appellants in the present appeal were parties in Exhibit D, Exhibit E, Exhibit E1 and Exhibits F, G and H, being either directly involved or represented or privies to the parties while the Respondent, Bore Auta, the Respondent in the present appeal, was the Defendant in Exhibits E, E1 and Exhibits F, G and H, as well as being the Plaintiff in Exhibit D.

On whether the subject matter and the issues were the same, counsel submits that from Exhibits D, E and E1, as well as Exhibit F, G and H, the subject matter in dispute relates to the two farmlands at Shirang and Lanteme. The claim of the Plaintiffs/Appellants in the present suit relates to the same two farmlands situated at Shirang and Lanteme. Reference is made to the evidence of PW5 in this respect. In addition, he submits that the issues before the previous Courts were whether the farmlands in dispute are the subject of inheritance for all the parties (i.e. the Appellants and Respondent), or whether they are the personal property of the Respondent.

Counsel submits that in the suit leading to this appeal, the Appellants claimed that the two farmlands, the subject matter of the dispute, are the subject of inheritance through their progenitors, Donem and Shegshege, and not the personal property of the Respondent. Thus, he contends that it is the same claim in Exhibits D, E, & E1, as well as in Exhibits F, G and H. It is counsel’s further submission that this issue was long settled in Exhibits D, E, E1 and Exhibits F, G and H. He refers in particular to the findings of the Court in Exhibit D (at page 114 lines 18-21), and Exhibit E1 (page 120 lines 1-4). He submits that these findings are subsisting.

On whether the previous suits were adjudicated and finally decided by Courts of competent jurisdiction, counsel submits that Exhibits E and E1, Exhibit D and Exhibits F, G and H were decided by the UAC Kaltungo and the High Court of Justice Gombe respectively. The issues were decided with finality and the Courts were Courts of competent jurisdiction. Also, that the questions were exhaustively considered and finally settled in Exhibit H, wherein the High Court of Justice Gombe State found that the subject matter, the issues and the parties in Exhibits E and E1 (marked as Exhibits C1 and D1 in that case) and those Exhibits F and G, are the same and that therefore, they operate as res judicata against the Appellants. It found that the question of res judicata was already settled in Exhibit D. Counsel therefore submits that these decisions subsist and operate to estop the Plaintiffs/Appellants from re-litigating the matter over and over again.

Based on all the above, counsel submits that the Respondent has satisfied the conditions for the operation of the doctrine of res judicata and the lower Court was right when it declined to depart from the decision of the High Court of Gombe State (as differently constituted) in Exhibit H. He therefore urged the Court to resolve this issue in favour of the Respondent.

RESOLUTION OF ISSUE ONE
In the consideration of an appeal from the decision of an appellate Court such as the lower Court, the duty of this Court is to review the findings of the said Court and decide whether it came to a right decision. Thus, my obligation here is not to re-evaluate the evidence of the parties adduced at the trial Court and to make my own findings thereon. Rather, it is to decide whether the lower Court was right in its decision.

Traditionally and as a matter of law, an appellate Court should not interfere with the findings of facts of a trial Court except where the findings do not correspond with the evidence before it. In such a circumstance, such findings are described as being perverse, as any decision based on perverse findings will not stand. See Unity Bank Plc V Abba (2013) LPELR–22890(CA); Dasuki (Rtd) V FRN ELC (2018) 3047(SC) 1; Egbufor V State (2013) LPELR-20688(CA); Unity Bank Plc V Abba (2013) LPELR-22890(CA); Nteogwuile V Otuo (2001) 16 NWLR (Pt. 738) 58; Adamu V State (2017) 7 NWLR (Pt. 1565) 459; Iroagbara V Ufomadu (2009) 5-6 SC (Pt. 1) 83; Ojo V Gov. Oyo State (1989) 1 NWLR (Pt. 956) 1; Abegunde V Ondo State House of Assembly (2015) 4-5 SC (Pt. 1) 1.

The appeal before the lower Court was in respect of the judgment of the UAC Billiri in Suit No. JUD/BUAC/BR/CVF1/78/01 delivered on 11th June, 2015 sequel to an order of retrial made by the High Court of Justice of Gombe State. The trial Court had awarded judgment in favour of the Appellants herein (as Plaintiffs before it). Aggrieved by that decision, the Respondent herein appealed to the lower Court. The appeal before the lower Court was determined considering the following issues:
1) “Whether from the claim and the evidence properly placed before the Court, the appellant has established res judicata as to deprive the trial Court of the requisite jurisdiction to entertain this matter. 
2) Whether it could be said that the plaintiffs/respondents did not discharge the burden placed upon them by law.”

In determining issue one, the lower Court found for a fact that the trial Upper Area Court, which had been ordered to re-try the case especially on the question of res judicata, did not at all consider the issue of res judicata on its merits (page 222 of the Record). Therefore, the lower Court proceeded to consider the exhibits which had been placed before the trial Court, and which were mostly made up of records of proceedings of previous cases decided by several Courts of law. In particular, the lower Court considered the record of proceedings in Exhibits D, E, E1, F, G and H. The ruling in Exhibit H was specially highlighted as it had emanated from the High Court of Justice Gombe State, a Court of coordinate jurisdiction with the lower Court.

Therein, the High Court in Suit No. GM/11/2006, after due consideration of all the materials placed before it in the form of records of proceedings of previous decisions over the subject matter, held in its ruling, Exhibit H, that the decisions in Exhibits D1 and C1 were final decisions of competent Courts of jurisdiction in respect of the subject matter and that the parties in the previous cases were the same as the parties in the proceedings before the Court or are privies in blood, law, estate and interest. The Court therefore held that based on the doctrine of estoppel rem judicatam, it lacked the jurisdiction to entertain the matter. It therefore struck out the suit on 7th May, 2007.

In respect of the appeal now before it, the lower Court examined the proceedings of these previous Courts in Exhibits D, E, E1 as well as Exhibit H in the record of appeal transmitted from the UAC Billiri, (which exhibits had been placed before the said trial Court), and analyzed same. The lower Court relied in particular on the decision of the Gombe State High Court in Exhibit H to hold inter alia as follows (at pages 226, 229-230 of the Record):
“Looking at the record and juxtaposing the same against especially Exhibit H which is also a suit in a representative capacity, it is clear that the parties are identical, the subject matter is the same, the decision in Exhibit H was a final decision… In our view, the ruling in suit no. GM/11/06 before the High Court Gombe on 7th May, 2007 was a final decision which this Court does not have the liberty to re-open. It can only be appealed against. In short, the point is this Court cannot sit on appeal over its own decision… Conclusively therefore this Court having earlier held that the decision in Exhibit D, E and E1 have established res judicata as encapsulated in its ruling in Exhibit H this Court has no reason to depart from the said ruling. We are bound by the ruling and we so hold.” (Emphasis supplied)

Thus, the question for this Court to answer is: was the lower Court right in its review of the decision of the trial Court leading to the setting aside of the decision of the trial Court, and instead finding in favour of the counter-claim of the Respondent before the trial Court?

Res judicata, as a defence to a claim is derived from the Latin term “Res judicata”. It means a matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by Judgment – Black’s Law Dictionary, Tenth Edition. The rule is that a final Judgment rendered by a Court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action.
Estoppel per rem judicatam is a rule of evidence whereby a party (or his privy) is precluded from disputing in any subsequent proceedings, matters which had been adjudicated upon previously by a competent Court between him (or his privy) and his opponent – Section 59 of the Evidence Act, 2011. A party raising a plea of estoppel per rem judicatam is in fact urging the Court before which it is raised not to consider the issues in the case anew, the issues having been previously adjudicated upon by a competent Court – Okposin V Assam (2005) LPELR-2521(SC) 26, A-C, per Oguntade, JSC. 
Thus, the essential features of this doctrine are:
1) An earlier decision on the subject matter and issue(s) from a Court of competent jurisdiction;
2) A final Judgment on the merits; and 
3) The involvement of the same parties or parties in privy with the original parties.
The issue of estoppel per rem judicatam/res judicata is based on the principle of the necessity to have an end to litigation in respect of the same res and between the same parties or their privies. See Ntuks V NPA (2007) LPELR-2076(SC) 25, C-F, per Tobi, JSC; Adeyemi-Bero V Lagos State Dev. Property Corp. (2012) LPELR-20615(SC) 77, C-D; Olukoga V Fatunde (1996) LPELR-2623(SC) 20, F.
Where a Court of competent jurisdiction has finally settled a matter in dispute between parties, neither the parties nor their privies may re-litigate that issue as under the guise of bringing a fresh action since the matter is said to be res judicata. The Supreme Court in Ajiboye V Ishola (2006) 13 NWLR (Pt. 998) 628 was clear on the law that where an issue of fact has been judicially determined in a final manner between the parties or their privies, such issue cannot be re-litigated in a subsequent suit.
This Court also had occasion to pronounce on the law in Edilcon Nig. Ltd V UBA Plc (2012) LPELR-20102(CA) 31-32, B-C, per Sankey, JCA as follows:
“It cannot be disputed that where a cause of action in a present suit has been determined in a previous action between the same parties, that cause of action becomes merged in that Judgment; transit in rem judicatam. It is a rule of public policy that no one shall be vexed twice on the same ground or for one and the same cause of action and on the same issues… It is also an application of the rule of public policy that it is for the common good that there should be an end to litigation, that is to say, interest rei publicae ut sit finis litium… The plea of res judicata operates not only against the parties, but also against the jurisdiction of the Court itself. It 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. The parties affected are estopped per rem judicatam from bringing a fresh action before any Court on the same cause and on the same issues already pronounced upon by a Court in a previous action.”

In the instant appeal, I agree with the lower Court that the ruling in Exhibit H delivered in Suit No. GM/11/2006 before the Gombe State High Court, is a final decision of a competent Court, which judgment is in rem. The findings of A.M. Yakubu, J., therein, is binding on the Appellants and estops them from again raising the same issue that had been finally decided in that Court.

In addition, the law is settled that the learned Judges of the High Court of a State have equal powers and are of coordinate jurisdiction – Section 270 of the Constitution. A Court of coordinate jurisdiction has no constitutional power to sit as an appellate Court in another case and review and/or adjudicate on a decision or order made by another Court of the same hierarchy. In Gani V AG Lagos State No. 1(1989) 3 NWLR (Pt. 112) 707, 774, the apex Court held:
“The presumption has always been that the decisions of a superior Court are within jurisdiction and are correct until the contrary is proved. It seems to me that even if the decision of the superior Court is a nullity, the only proper way of challenging such decision must be by an application before the very Court which tried the case or by an application to the appropriate appellate Court. Even if the Judgment Longe J., were a nullity, the proper way to set it aside is by an Appeal not by a review before a Court of coordinate jurisdiction… It seems to me that in view of the provision of the Constitution which carefully shares jurisdiction to the various Courts…, only the Court vested with the the particular jurisdiction can interfere with the decision of another Court.”

Thus, the finding of the lower Court after a close consideration of the proceedings in Exhibit H in respect of Suit No. GM/11/2006 delivered by the High Court Gombe State over the same subject matter and issues, and adjudicated by the same parties or their privies, that it lacks jurisdiction to overthrow the previous decision, is right and proper.

In the appeal, the Respondent had again raised the issue of estoppel per rem judicatam before the lower Court and referred to the proceedings of the trial UAC Kaltungo, as well as the proceedings of the High Court of justice Gombe State, (Exhibits D and H), and the lower Court rightly held that the subject matter of the Appeal and the issues placed before it had been settled by a previous decision of the same Court, which decision had not been appealed against. Thus, in the Appellants’ appeal against the decision of the UAC Billiri, the lower Court held that the decisions in Exhibits D and H estopped the Appellants from re-litigating the case. Based on the totality of the evidence placed before it, I agree with learned counsel for the Respondent that the lower Court rightly sustained and upheld the plea of estoppel per res judicata.

The Supreme Court in Balogun v. Adejobi & Ors (1995) LPELR-724(SC) 34, B-F, Belgore JSC held as follows:
“Estoppel per rem judicatam operates when there has been a final decision by a Court of competent jurisdiction, whose decision has not been challenged legally either by way of appeal or, if appealed against, final decision has been made by competent Court or Courts, and that the decision is between their privies, and the issue or subject matter is the same. It is based on res inter allios acta alteri nocere non potest. This principle is as old as the common law in this country and it operates for or against not only the parties in the Court in the previous case but also their privies. Privies include all those who are related to the parties in blood, interest and title of the subject-matter.”
Thus, once a dispute or matter has been finally and judicially pronounced upon or determined by a Court of competent jurisdiction, neither the parties thereto nor their privies can subsequently be allowed to re-litigate the matter because a judicial determination, properly handed down, is conclusive until reversed by an appellate Court. The veracity of that decision is not open to challenge nor can it be contradicted. This doctrine is grounded in public policy which stipulates that there must be an end to litigation. See Ayilara V Fed. Ministry of Works & Housing (2013) LPELR-20772(CA) 33-34, F-B, per Sankey, JCA.

Based on the Appellants’ invitation in this appeal, and by way of review, I have similarly examined all the exhibits placed before the lower Court and I cannot fault the findings of the lower Court. Clearly, while the Respondent herein has remained consistent as a party, either as Plaintiff or Defendant in all the records of the previous proceedings, the Appellants herein, as members of the same family whose progenitors are Donem and Shegshege, have approached various Courts, both at first instance and on appeal, as parties or privies to the parties, seeking adjudication over the same subject matter, (i.e. the farmlands situate at Shirang and Lanteme) and issues (i.e. whether owned by the larger family of Donem and Shegshege or personally owned by the Respondent alone having inherited them from his father), against the Respondent. Their contention has consistently been that the two farmlands in dispute belong to the larger family to which the Respondent belongs, and not to him personally. While the Respondent was awarded judgment in his favour in Exhibits D and C1, he also got a ruling in his favour by the High Court Gombe in another suit filed by the Appellants, to wit: Suit No. GM/11/2006, confirming those decisions as constituting res judicata and therefore the matter could not be re-opened except on appeal to a higher Court.

The lower Court therefore, in faithful adherence to sound principles of law, refused to be enticed into re-opening the issue of res judicata in the appeal before it against the decision in yet another suit filed before the UAC Billiri in 2015 by the same parties or their privies, in respect of which the High Court Gombe State, (differently constituted), had earlier made a final pronouncement on the same subject matter and issues way back in 2007. This was proper and I endorse its findings thereon. I therefore resolve issue one against the Appellants.

Issue two – Whether the lower Court evaluated the evidence on record to sustain the setting aside of the trial Court’s Judgment.

Under this issue, learned Counsel for the Appellants submits that an appellate Court will not interfere with the findings of the lower Court except where it is shown to be perverse or not related to the evidence adduced before the trial Court. The exception is where the trial Court fails to evaluate such evidence properly or at all in that case, an appellate Court will interfere to re-evaluate the evidence. He relies on Dan Osung V State (2012) NSQR 36, 59; Mil. Gov. Lagos State V Adeyiga (2012) 5 NWLR (Pt. …?) 29 (Citation incomplete).

Counsel submits that the lower Court did not re-evaluate the evidence tendered before the trial Court, but proceeded to hear testimonies, admit exhibits, visit the locus in quo, evaluated the facts and entered judgment declaring the farmlands to be family land belonging to the heirs of Donem and Shegshege. Counsel contends that the Appellants, as Plaintiffs before the trial Court, asserted that the land belonged to Donem and Shegshege and they called PWI to PW VI to prove this assertion. That they testified that the land was cleared by Donem and Shegshege, and then entrusted to the Respondent. Counsel contends that the Respondent did not counter this fact by credible evidence through his witnesses DW1 to DW IV. Instead, his witnesses all confirmed that the land belonged to Shegshege who gave it to Auta, the Respondent’s father. He contends that they were however unable to prove this. The trial Court therefore found that the land belonged to both Donem and Shegshege, and this finding was not set aside by the lower Court.

Counsel submits that the Respondent was unable to prove that the land personally belonged to him. He argues that the length of use of the land in dispute cannot confer ownership of the land on him as he must prove his title to the land first. He contends that the Respondent was in possession of the land only by consent, and so he performed acts of possession with the consent of the Appellants. Counsel submits that enjoyment of the land in dispute cannot precede title nor indicate title, and acts of ownership and possession can only be considered where the root of title is established. He relies on Regd. Trustees of the Apostolic Faith Mission V James (1987) 3 NWLR (Pt. 61) 556; Yusuf V Adegoke (2007) 11 NWLR (Pt. 1045) 332; Orlu V Abite (2010) 8 NWLR (Pt. 1196) 307; Gbadamosi V Okojie (2011) 3 NWLR (Pt. 1233) 175.

Counsel also submits that the trial Court found as a fact that the land belongs to Donem and Shegshege, and is to be shared amongst the heirs, and that includes the Respondent. That these findings have not been set aside and are therefore subsisting. Counsel therefore urged the Court to also resolve this issue in favour of the Appellants, allow the appeal, set aside the judgment of the lower Court and restore the judgment of the trial Court.

In response, learned counsel for the Respondent submits that the lower Court carried out a critical analysis and evaluation of the relevant pieces of evidence on the question of res judicata and arrived at the conclusion that the question was already settled in Exhibit H. He refers to the judgment of the lower Court at pages 237 to 257 of the Record, the import of which is that the entire proceedings of the trial Upper Area Court Billiri is a nullity, the said Court having acted without jurisdiction. Counsel therefore urged the Court to hold that the lower Court was right in setting aside the entire decision of the trial Court. He finally urged the Court to resolve this issue in favour of the Respondent and to dismiss the appeal for lacking in merit.

I have perused the reply brief of argument filed by the Appellants in purported response to fresh issues of law arising in the Respondent’s brief. I agree with learned counsel for the Respondent that it only amounts to re-arguing their appeal or re-hashing the arguments already presented in their Appellants’ brief of argument. That is not the function of a reply brief. It is therefore discountenanced.

RESOLUTION OF ISSUE TWO
This issue questions whether the lower Court evaluated the evidence on record to sustain the setting aside of the trial Court’s Judgment. An examination of the judgment of the lower Court, especially at pages 222 to 230 of the record, reveals that from the onset of its consideration of the two issues framed for determination, the lower Court was quite mindful of the decision of the trial UAC Billiri and did a good job in analyzing, evaluating and reviewing all the pieces of evidence placed before it. The lower Court commenced its consideration of the trial Court’s judgment at page 222 of the record by stating as follows:
“Now our next task is to consider whether a defence of res judicata has been successfully established in this appeal. In doing so, we shall consider the arguments of counsel as well as the exhibits which we have been referred to. This is to be considered against the background that it is obvious from the record of the lower trial Court, that is Upper Area Court Billiri that the issue of res judicata has not been considered on its merit. In page 92 lines 11 to 14 of the record it is stated thus:-
“In relation to the record of proceedings that were tendered by counsel to the defendant, A.Y. Galadima before this Court, this Upper Area Court is lower than the High Court and it is the High Court that said that the case be retried by way of retrial.” (Emphasis supplied)

Since the crux of the suit before the UAC Billiri was the issue of res judicata, following the order of retrial by the High Court of Justice Gombe in an interlocutory appeal sending the suit back to it to consider the question of res judicata, and yet it failed to, the lower Court proceeded to consider in extensio all the exhibits produced and placed before the trial UAC Billiri in order to resolve this important issue, which the trial Court had deliberately ignored.

At pages 222 to 229 of the Record, the lower Court therefore painstakingly reviewed Exhibits A, B and B1, being the decisions of the Tangale Waja Area Court and the Kaltungo Upper Area Court; Exhibit D – the decision of the Upper Area Court Kaltungo; Exhibits E and E1 – the proceedings of Area Court II Kaltungo and the Upper Area Court Kaltungo; Exhibit F – the Writ of summons and Joint Statement of claim in respect of Suit No. GM/11/2006 before the High Court Gombe; Exhibit G – the statement of defence and Exhibit H – the ruling of the High Court Gombe delivered by A.M. Yakubu, J.; Exhibit I – in respect of Suit No. 139; Exhibit J – a decision of the Upper Area Court Kaltungo in Suit No. KUAC/KT/CVA/6/2001; Exhibit K – the receipt and certificate issued by Shongom Local Government for a Customary Right of Occupancy and Exhibit L – a copy of the Site Acquisition Heads of Terms (Leases).

After painstakingly sifting through these documents, the lower Court came to the conclusion that the exhibits that were relevant to the issue of res judicata placed before it were Exhibits D, E, E1, F, G and H. Thereafter, the lower Court, at pages 224, 225, 226, 229 and 230 of the record of appeal made its findings thereon after a very careful evaluation of all these pieces of documentary evidence. It was based on this exercise, that it arrived at the decision that the decisions of the Upper Area Court Kaltungo in Exhibit D and the ruling of the Gombe State High Court in Exhibit H constituted res judicata against the suit leading to the appeal then under consideration before it. The findings of the lower Court, especially at pages 229 to 230 of the record of appeal, are pertinent and conclusive of the crux of the appeal. It is therefore artless and disingenuous to canvass that the lower Court failed to review and evaluate the evidence placed before it in arriving at its decision. The reverse is the case. Based on this, I resolve issue two also against the Appellant.

Having resolved both issues against the Appellants, I find no merit in the appeal. It fails and is dismissed.
In the result, I affirm the judgment of the High Court of Justice Gombe State sitting in its appellate jurisdiction in Suit No. GM/33A/2015, Coram: Saad Mohammed, J. and S.Y. Abubakar, J., delivered on 12th January, 2017.
I award the costs of the appeal assessed at N100, 000.00 in favour of the Respondent and against the Appellants.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I was opportuned to read the draft of the judgment just delivered by my learned brother JUMMAI HANNATU SANKEY JCA. I am in full agreement with the sound reasoning and conclusion therein. I have nothing more to add. I resolve the two issues identified in the lead judgment against the appellants. I also dismiss the appeal and affirm the judgment of the lower Court. I also award the cost of 100,000 naira in favour of the Respondent.

EBIOWEI TOBI, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother, J. H. Sankey, JCA. My lord has shown mastery of the issues for determination and has adequately resolved all the issues correctly in my view against the Appellants. I have nothing useful to add. I also dismiss the appeal in affirming the decision of the lower Court.
I abide by the consequential order.

Appearances:

EMMANUEL NWAEKWE Esq. For Appellant(s)

A.Y. GALADIMA Esq. For Respondent(s)