GONIMI v. BUTU & ORS (2022)

GONIMI v. BUTU & ORS

(2022)LCN/16746(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Friday, February 25, 2022

CA/G/108/2017

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

ALHAJI BUKAR GONIMI APPELANT(S)

And

1. BABAGANA MODU BUTU 2. TALBA ZANNA LAISU 3. GONI KOLO GANA 4. AWANA MODU MONGUNO 5. ABBA MODU MONGUNO RESPONDENT(S)

RATIO

WHETHER OR NOT A SINGLE GROUND OF APPEAL CAN SUSTAIN AN APPEAL

The trite position of the law is that a single ground of appeal can sustain an appeal. See GE International Operation (Nig) Ltd vs Q. Oil and Gas Services Ltd (2016)1-3 S.C. (pt III) 150; Chrome Air Services Limited & Ors vs Fidelity Bank (2017); Okey Jim Nwagbara vs Jadcom Limited (2021) LPELR-55329 (SC) 12 S.C. (pt III) 57. PER TOBI, J.C.A.

THE POSITION OF LAW ON WHEN A GROUND OF APPEAL IS SAID TO BE COMPETENT

I had to go into all this at least for now to enable us appreciate my view on whether the grounds of appeal challenged by the Respondents are competent or not. A ground of appeal is competent when it gives sufficient notice to the Respondent of the nature of the complaint of the Appellant. The point must be made that a ground of appeal must not necessarily be elegantly written or couched provided the opposite party can see the grievance of the Appellant. If it can be seen from the ground what the Appellant is unhappy about and the unhappiness is in relation to an aspect of the judgment, the ground of appeal will be competent in law. In NNPC vs Ibrahim & Ors (2014) LPELR-23999 (CA), this Court per Abba Aji, JCA (now JSC) held thus:
“A ground of appeal qualifies as a valid and proper one contemplated by the Rules of this Court if the ground of appeal states clearly what portion of a Court’s judgment or ruling it challenges and that portion is traceable from the judgment or ruling of that Court appealed against. See C.B.N. V SAP (Nig) Ltd (2005) 3 NWLR (Pt. 911) 152. Also in Kumalia V. Sheriff (2009) 9 NWLR (Pt. 1146) 423, it was held that the important consideration in the determination of the nature of a ground of appeal is not the form of the ground but the question it raises. It follows therefore that the issue formulated from the competent ground of appeal is also valid and competent.” See ITB PLC V OKOYE (2021) 11 NWLR (PT 1786) P. 163 at p. 191-192 paras A-B (SC).
The Supreme Court on this point has held that once it is established that all parties are seized of the knowledge of the substance of the complaint, an objection of incompetence is not necessary. See FRN v Oduah (2020) 12 NWLR (pt. 1737) p. 16 at p. 29 paras D-E (SC), FCMB Ltd v Ogbueli (2021) 10 NWLR (pt 1783) p. 1 at p. 24 paras B-F (CA). For a ground of appeal to be competent, it must only challenge the decision of the Court, that is the ratio and not what the Court has not decided on. See Okechukwi V. Onbiano (2020) 8 NWLR (Pt 1726) P. 276 at P 298 paras G-H (SC), Andrew & Anor vs INEC & Ors (2017) 7 S.C. 90; Chief Clement Okafor vs Anthony Abumofuani (2016) 12 NWLR (pt. 1525) 117. The question is not about the elegance of how the ground was drafted but rather whether it is done in such a way that the Respondent knows what is the complaint of the Appellant about the judgment. PER TOBI, J.C.A.

THE POSITION OF LAW ON A VAGUE GROUND OF APPEAL

WHETHER OR NOT ISSUES FOR DETERMINATION MUST ARISE FROM GROUNDS OF APPEAL

The law is that issues do not just exist, they are based on grounds and therefore if the ground is not competent, the issue is also not arguable and all arguments on the issue will be discountenanced as it comes to no issue. See Base Development Limited vs A.G. of the Federation & Anor (2020) LPELR-51381(CA); Mallam Jimoh Atanda vs The Hon. Commissioner for Land and Housing, Kwara Satte & Anor (2018) 1 NWLR (pt 1599) 32; Ayoade vs State (2020) 9 NWLR (Pt 1730) p 577 at 594 paras A-G. PER TOBI, J.C.A.

THE MEANING AND IMPLICATION OF COMMENCING A MATTER DE NOVO

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice Borno State, Maiduguri Judicial Division in Suit No. BOHC/MG/CV/104/2011 delivered on 12th October, 2016 by Hon. Justice F. Umaru.

The facts leading to the appeal are concisely as follows: The Appellant as Plaintiff instituted an action against the Respondents as Defendants at the lower Court laying claim to the possession over a piece of land measuring 300ft by 250ft situate at Bolori ward, adjacent to Federal Low cost Housing Estate Maiduguri, a declaration of the Defendants as trespassers, perpetual injunction and the cost of the suit.

On receipt of the processes, the Defendants denied the claim of the Plaintiff which prompted the Plaintiff now Appellant to call 5 witnesses to prove his case. At the end of the battle between the parties at the lower Court, judgment was entered for the Respondent when the lower Court dismissed the claim of the Plaintiff on the ground that it lacked jurisdiction. The lower Court in its judgment found at pages 183-190 of the record of appeal and specifically at page 198 held thus: “As to the other condition precedents, the certified true copy of the judgment of the Court in suit number M/11/2001 was admitted as Exhibit C and a copy attached to the counter-affidavit of the 2nd defendant to motion number BOHC/MG/CV/104MC/2011. It is thus not in dispute that there was a judicial decision delivered by a Court of competent jurisdiction to wit the High Court of Justice of Borno State which had jurisdiction over the parties and the subject matter. It is also apparent from the said judgment of that Court that the decision was final and on the merits. The Plaintiff himself attested to this fact when he stated in his testimony in this present suit that judgment was delivered against him in that suit and that he appealed against the said judgment. On the whole, my analysis of the conditions reveal that the parties, subject-matter, claims and issues in the two actions to wit suit number BOHC/MG/CV/104/2011 and suit number M/11/2001 are the same. Consequently, the jurisdiction of this Court is ousted. The suit is therefore dismissed.”

Apparently dissatisfied with the decision of the lower Court, the Appellant has approached this Court, and in expressing his disaffection filed this appeal on five grounds which can be found on pages 199-206 of the record. The Appellant’s counsel in this appeal is A. I. Bello Esq., who settled the Appellant’s brief filed on 1/8/2019, deemed properly filed on 23/09/2021. The Respondents’ counsel who settled the Respondents brief filed on 6/10/2021 is P. A. Bello Esq. On the lighter side, this is the battle of the Bellos. The Appellant’s counsel in the brief of the Appellant formulated 3 issues for determination viz:
1. Whether having regards to the previous ruling of the lower Court delivered on the 26th September, 2013 per Hon. Justice C. A Mamza (as she was) (sic) on issue of jurisdiction that the parties are not the same, who has a pending appeal before this Honourable Court, the lower trial Court can still oust and/or decline jurisdiction to determine the merit of this suit having called witnesses based on issue of res-judicata, the trial Court wrongly relying on the case of Eke V. Akpu (2010) ALL FWLR PT 510 P.640 AT 654 ALL FWLR PT 510 P. 640 AT 654 which is a case on trial De- Novo.
2. Whether the failure of the learned trial judge to consider the further affidavit of the Appellant/Plaintiff filed on the 7th October, 2015 against the counter-affidavit of the 2nd Defendant/Respondent and the further affidavit to the 1st and 3rd Respondent’s counter-affidavit filed on the 9th October, 2015 by the Plaintiff/Appellant among other processes in the case file has not violated the Appellant’s right to fair hearing thus occasioning a miscarriage of Justice.
3. Whether it is right for the learned trial judge to substitute the evidence before him with the written address of the defendant’s counsel to arrive at his judgment.

In addressing this Court on the 1st issue, learned Appellant’s Counsel submitted that the trial judge was wrong to have held that the issue of res-judicata is applicable and therefore oust its jurisdiction when a earlier Court presided over by Justice C. A. Mamza had held to the contrary to the effect that the parties were different. The premise on which the lower Court took that position being that the case came before it de novo, counsel faulted particularly that the decision of the earlier Court on the issue of jurisdiction is on appeal to this Court. It is the firm submission of learned counsel that the fact that a matter starts de novo does not mean that the latter Court will jettison the order and decision made by the earlier Court, this is more so when that order or decision is before the Court of Appeal for determination. He relied on Iweka Vs. S.C.O.A Nigeria Ltd (2000) FWLR PT.15P. 2524 AT 2538. The lower Court in coming to the decision it did, counsel submitted, did not consider all the affidavit evidence before it and as a result, arrived at a decision of revisiting the issue of res-judicata which had been settled by another judge. This occasioned a miscarriage of justice, counsel submitted relying on Kwara Polytechnic Ilorin Vs Oyebentu (2008) ALL FWLR PT 447 P 141 AT 179 Paras B-E. This conflict in the decision of the Court runs contrary to Section 270 of the 1999 Constitution that provides for only one High Court in each state of the federation, counsel opined.

It is the further or better still the alternative submission of counsel that even if this Court holds that the principle of res-judicata applies, the Respondents did not establish the ingredients for the application of the principle of res-judicata. That even though the Respondents tendered Exhibits C-D, it did not change the ruling of 26/09/2013 taking into consideration suits no. BOHC/MG/CV/104/2011 and M/11/2001 as Exhibits C-D were tendered by DW2 without giving evidence to link same to the pleadings of the Respondents to show that they were privies to the judgment. Counsel relied on All Nigeria People Party V. Argungu (2009) ALL FWLR PT. 476 P.94 AT 102 Paras E-F. It is the final submission of the learned counsel on this issue that the lower Court based its decision on speculation to determine the plea of res-judicata without any evidence in support of it.

On issue 2, it is the submission of the learned Appellant’s Counsel that it was wrong for the lower Court not to have considered the further affidavit of the Appellant filed on the 7/10/2015 against the counter-affidavit of the 2nd Respondent and the further affidavit to the 1st and 3rd Respondents counter-affidavit filed on 9/10/2015 by the Appellant thereby violating the sacred principle of the right to fair hearing of the Appellant as provided in Section 36 of the 1999 Constitution as amended and same led to miscarriage of Justice.
Counsel submitted that the failure of the lower Court to consider those affidavit evidence has denied him fair hearing and has occasioned a miscarriage of justice. It is the firm argument of counsel that Exhibit ABG1 and ABG2 attached to his further affidavit at the lower Court to the 2nd Respondent’s counter-affidavit, if properly considered, should have made the Court to arrive at a different decision. On the legal effect of the denial of fair hearing, counsel referred to Cookey V. Fombo (2005) ALL FWLR PT 271 P.25; F.M.B.N. Ltd V. Adu (2000) NWLR (PT.678) P.309, Ogundoyin V. Adeyemi (2001) FWLR (PT 71)P.1741. The inability of the lower Court to avert its mind to the pending appeal affects the credibility of the decision of the Court on the issue of jurisdiction counsel submitted citing Animashahun V. Governor of Lagos State (2005) ALL FWLR PT. 247 P.1565 AT 1581 Paras D-F. On the final issue for determination, it is the submission of counsel that the lower Court was wrong to have substituted the evidence before it with the written address of the 1st, 3rd and 6th Respondents to arrive at the judgment appealed against.

It is the firm contention of the Appellant that it was only the 3rd defendant that testified at the lower Court who claimed to have sold part of the land in dispute to the 4th, 5th and 6th Defendants. The submission that the said testimony is contrary to the averment in his pleadings cannot hold water. He further submitted that there was no evidence before the Court for it to hold that the 1st, 3rd and 6th Defendants were privies of the Defendant in Suit No. M/11/2001. The lower Court coming to that conclusion is based on the submission of counsel which in law cannot take the place of evidence he submitted relying on Ezuma V. Nkwo Market Community Bank Ltd(2000) FWLR PT. 28 P 2243 AT 2263; U.B.N Plc V. Ayodare & Sons (Nig)Ltd (2007) ALL FWLR PT 383 P.1 AT 42 paragraph F-G.

He finally submitted that this Court deriving its power from Section 15 of the Court of Appeal Act 2005 has the jurisdiction to enter judgment in favour of the Appellant and also to set aside the judgment of the lower Court on the issue of res-judicata.

Counsel to the 1st – 6th Respondents before addressing the main appeal, challenged the competence of grounds 2, 3 and 5 of the Appellant Notice of Appeal on the premise that they are incompetent been vague and not related to the judgment appealed against. If this objection succeeds, issues 1 and 2 formulated from those grounds will be struck out. The Respondents filed a motion on 6/10/21 challenging those grounds. The Appellant filed a counter-affidavit to the motion. The Respondents argued the objection in pages 3-10 of the Respondents brief. The Appellant filed a reply brief to answer the objection to those grounds. In addressing the objection, Respondents formulated 2 issues for determination:
1. Whether grounds 2, 3 and 5 contained in the Notice of Appeal are competent grounds of Appeal; and
2. Whether issues 1 and 2 distilled from the incompetent grounds of appeal are equally competent issues for the determination of the Honourable Court?

In addressing issue 1 of the objection, it is the submission of counsel that the essence of a Ground of Appeal is to give sufficient notice and information to the Respondent of the precise nature of the Appellant’s complaint against the judgment appealed against. Counsel referred to the case of Ngere V. Okuruket (XIV)(2017) ALL FWLR (PT.882) 1302 at 1330. He contended further that a ground of appeal is always directed against a ratio decidendi of a lower Court and can never be at large relying on Awuse V Odili (2005)16 NWLR (PT.952) 416 at 462. It is the firm submission of counsel that the 3 grounds of appeal challenged fell short of the legal requirements of competent grounds of appeal.

In dissecting ground 2, counsel contended that the ground offends Order 7 Rule 3 of the Court of Appeal Rules 2016 for being too vague and general in nature. As it did not attack any specific findings of the lower Court thereby making ground 2 to be incompetent citing Sylva V. INEC (2017) ALL FWLR (PT.875)1988 at 2019. On ground 3, counsel contended that the ground without its particulars is a mere recitation of the statement of the trial judge. He attacked the 6 particulars of error in support of ground 3 for being detached and unrelated to the ground of appeal. He also submitted that particulars of error are intended to highlight the complaint against the decision, relying on the case of Nyako V. Adamawa State House of Assembly (2018) ALL FWLR (PT.921)99 AT 143, Para A-B. Naturally on issue 2, it is the submission of counsel that once grounds 2, 3 and 5 are declared incompetent, the issues based on them will be struck out.

Learned Counsel to the Respondents in refusing the temptation of putting all his eggs in one basket addressed the main appeal by formulating 3 issues for determination which are not radically different from the issues formulated by the Appellant except for the fact that the issues formulated by the Respondents’ counsel are more concise and easy to comprehend. The issues formulated in the Respondents brief are as follows:
1. Having regard to the facts and circumstances of this case, was it proper in law for the trial judge who was assigned to try the case de novo, to have declined jurisdiction to try same on the ground that it was caught up by the doctrine of res-judicata?
2. Whether the learned trial judge failed to consider material affidavit evidence on record before arriving at his decision and,
3. Whether the learned trial judge substituted the evidence before him with the written address of the defendant’s counsel in arriving at his judgment.

On the 1st issue, learned Respondent’s Counsel submitted that the legal effect of the ruling of the lower Court is that the ruling of the former Court was annulled since the matter commenced de-novo therefore, any issue can be raised before a new trial judge, he relied on Fadiora V. Gbadebo (1978)3 SC 219; Ngige V. Obi (2012) ALL FWLR (PT.617) page 738 at 757-758 and Eke V. Akpu (2010) ALL FWLR ( PT. 510) 645.

In rebuttal of the submission made by the Appellant, counsel to the Respondents contends that the lower Court did not speculate in giving its judgment and from the available evidence at the lower Court, the ingredients of res-judicata as shown in Exhibits C & D was before the Court. The lower Court examined the Exhibits and the evidence before arriving at the decision that the Respondents in this appeal were privies of the Defendants in suit no: M/11/2001. He further opined that the argument of the Appellant’s counsel does not hold water in challenging the evidence of DW4 since the documents were tendered without objection and more so they are certified true copies pursuant to Section 105 of the Evidence Act 2011.

On Exhibits C and D, it is the submission of counsel that they speak for themselves and they cannot be classified as documents dumped on the Court as they can be tendered from the bar. For this submission, counsel relied on Ogbeide V. Amadasun (2017) ALL FWLR (PT. 904) 1139 at 1170 para C-D. Counsel submitted 1st, 3rd to 6th Respondents through their statement of defence came into the land through one Alhaji Bukar Bolori, the defendant in suit no: M/11/2001, therefore Alhaji Bukar Bolori who was sued as representative of all the unnamed persons in Bolori Arabic School, defended the action for himself and the unnamed persons in the suit who became entitled to the judgment. In the circumstance, the Defendants in the suit on appeal are privies of the Defendant in suit no: M/11/2001. Suit no: M/11/2001 had been decided on the merit and the appeal determined in favour of the Respondent in Appeal No: CA/G/64/2016, it is the submission of counsel that it will be unfair to allow the Appellant have a second bite at the litigation in respect to this case as doctrine of estoppel per rem judicatam applies to this case, counsel relied on Ekpuk V. Okon (2005)6 SCNJ 139 at 147-150

Learned counsel to the Respondents answered issue 2 in the negative as it is submitted by him that the lower Court considered the Court processes complained of by the Appellant, the findings of the lower Court is based on the authorities cited and has covered the entire issues raised before it. He finally submitted that the right to fair hearing of the Appellant was not violated and further that the failure of the Appellant to show that there was any miscarriage of Justice will ensure this issue is resolved against the Appellant.

On the 3rd issue, learned counsel contends that the arguments of the Appellant’s counsel is a repetition under issue no 1 at pages 18-19 of his brief and the Appellant does not have the luxury of duplicating the same argument under two separate issues. Counsel submitted that the lower Court delivered his judgment from the evidence available to him as Exhibits C-D were examined and the evidence of DW4 considered. Therefore, the findings were sound and that failure of the Appellant to challenge same in any ground of Appeal simply means that this Court has no jurisdiction to review same. Counsel relied on Oputeh V. Ishida (1993)3 NWLR (PT. 279) 34 at 50-51. In the absence of a ground of appeal challenging the findings of the lower Court, the Appellant was unfair to the lower Court by alleging that it relied on written address of counsel rather than evidence.

He finally urged this Court to dismiss the appeal for lacking in merit.

On receipt of the Respondents’ Brief of Argument, the Appellant filed a written address along with a counter-affidavit in opposition to the motion seeking to strike out grounds 2, 3 and 5 of the grounds of appeal, together with a reply brief filed on the 19/11/2021.

The Appellant adopted both issues formulated by the Respondents on the competence of grounds 2, 3 and 5, so I do not see any reason to reproduce same hereunder.

On issue 1, the Appellant’s counsel submitted that grounds 2, 3 and 5 are competent because they raised substantial issues of law and fact, therefore they cannot be dismissed with a wave of hand. He submitted, ground 2 raises the issue of failure by the lower Court to determine the matter in relation to the motion in Suit No: BOHC/MG/CV/104MC/2011 and that the ruling of the previous judge which is on appeal before this Court in Appeal No: CA/J/286M/13. This, counsel submitted, cannot be said to be vague.

Counsel relied on the authorities of Nwabueze V. Nwora (2005) ALL FWLR (PT.272) PP.297 and God’s little Tannery V. Nwaigbo (2005) ALL FWLR (PT.271) pp 82 in submitting that a ground may be considered vague when the complaint is not defined in relation to the subject. He finally urged this Court not to strike out ground 2 as it is competent.

In his argument to save grounds 3 and 5 from being struck out, counsel submitted that ground 3 was directed at the ratio decidendi of the lower Court and it borders on res-judicata while ground 5 is complaining that the lower Court relied only on written address of the defendant as evidence before the lower Court. When ground 5 is jointly read with its particulars, it will be discovered that the error highlighted the position of law and fact with regard to the address of counsel.

Furthermore, once an Appellant has complaints in a ground of appeal which relates to findings in the judgment, then there is an appeal on those findings and such a ground is competent in law, counsel cited Osasona V. Ajayi (2004) ALL FWLR PT.216 P 443(SC). The grounds of appeal are not vague and therefore are competent. Counsel finally submitted that Courts have passed the era of technicality to that of substantial Justice in urging Court not to strike out the grounds of appeal.

The counsels to the parties have done their bit, the focus now shifts to this Court to decide the appeal one way or the other. No matter my finding on the objection on grounds 2, 3 and 5, there is still an appeal to be determined. This is because even if I strike out grounds 2, 3 and 5, grounds 1 and 4 can sustain the appeal.

The implication is that even if I strike out grounds 2, 3 and 5, grounds 1 and 4 can sustain this appeal, that notwithstanding, I will still have to address the issue of the competence of grounds 2, 3 & 5 of the grounds of appeal since the Respondents counsel has challenged their competence.

I will start with the objection to those grounds but before I do that, it will not be out of place to look at the main issue in the front burner of this appeal. From the Record of Appeal, it is clear that, there was a case earlier in time apparently over the same subject matter as in this case on appeal. That case is Suit No: M/11/2001 between Alhaji Bukar Gonimi vs Alhaji Bukar Bolori & 2 Ors. That case was decided on the merit in favour of the Defendants therein against the Plaintiff, who is the Plaintiff in the case on appeal before this Court (Suit No: BOHC/MG/CV/104/2011) in which he is the Appellant. In simple term, the Appellant in this appeal lost Suit No. M/11/2001 to the Defendants in that case, Alhaji Bukar Bolori who is not a party to the case on appeal here. From the parties on record in Suit No: M/11/2001, it would appear only the Appellant is a party in the suit appealed against in this Court. Whether this is legally the position, I will consider later.

After the determination of Suit No. M/11/2001 against the Appellant before this Court, he appealed to this Court via Appeal No: CA/G/64/16 which appeal was dismissed on 22/7/2021.

The case on appeal in this Court was commenced in 2011 registered as BOHC/MG/CV/104/2011. This case was instituted by the Appellant as Plaintiff against 5 persons who were not direct parties in Suit No: M/11/2001. The suit, that is the current suit on appeal was before Hon. Justice C.A. Mamza. The Defendants, Respondents in this appeal filed a motion on 1/3/13 urging the Court to strike out Suit No: BOHC/MG/CV/104/11 being an abuse of Court process in view of the then subsisting Suit No: M/11/2001. The lower Court then presided over by Justice Mamza held that it was not an abuse of Court process. The implication of the decision by His Lordship was that Suit No: BOHC/MG/CV/104/11 can be determined before him. The Defendants appeal against the ruling which was still subsisting on appeal as CA/J/268M/13 when the matter had to start denovo with His Lordship Umaru J., presiding. His Lordship, Umaru J after taking all the evidence before it in a considered judgment declined jurisdiction on the premise that Suit No: M/11/2001 operate as res-judicata to Suit No: BOHC/MG/CV/2011. If I understand what is before this Court on appeal, the Appellant’s complaint is that since a Court of coordinate jurisdiction has decided that the parties in Suit No. M/11/2001 and BOHC/MG/CV/2011 are not the same, the former cannot operate as res-judicata to the latter suit and therefore Hon. Justice Umaru was out of line in taking a decision at variance with the decision of Justice Mamza. Umaru J on commencing the matter denovo declined jurisdiction because it held that the earlier suit operates as res-judicata to the latter. The Appellants are unhappy about this while the Respondents are happy about it. The Respondents’ case is that since the matter has commenced de novo, Umaru J., was in good standing in not following the decision of Mamza J. The real issue for contention is whether his lordship Umaru J was right in his decision?

The main thrust of the Appellant’s complaint is that, the lower Court was wrong in delving into that issue because an earlier judge had decided on that matter to the effect that Suit No: M/11/2001 cannot operate as res-judicata since the parties are not the same. It seems clear as shown by the case of the Appellant that the decision of Umaru J is at variance with the decision of Mamza J on the matter of whether Suit No: M/11/2001 operates as res-judicata and whether Suit BOHC/MG/CV/104/2011 is an abuse of Court process. I do not think that Umaru J was unaware of the judgment of his learned brother as there are enough documents before his Lordship to that effect. The fact that the matter is on appeal was also before the Court. The question is what gave the lower Court courage to go ahead to decide the case the way it did declining jurisdiction. The only reason one can deduce from the judgment is the fact that the case was commencing de novo before him. The lower Court was of the view that since the matter was commencing de novo, he has the latitude to go the whole length and breadth of the case without limitation and restriction in arriving at any judgment.

In deciding whether the lower Court was right or wrong, it will be necessary to go on an excursion into the position of the law on matters commenced de novo. In doing that, I will have to determine the latitude that the law permits Umaru J., to go in deciding the matter before him commenced de novo.

In deciding this case like any other case, the Court will be looking at the law and not base it on sentiment. It has been decided over and over again that the law has no place for sentiment and emotions. See Aimuamwehi F. Osareren vs FRN (2018) 10 NWLR (pt 1627)221; Umanah vs NDIC (2016) 7 S.C. (pt v) 49. The real issue therefore is whether the lower Court was right in declining jurisdiction on the premise of res-judicata.

I had to go into all this at least for now to enable us appreciate my view on whether the grounds of appeal challenged by the Respondents are competent or not. A ground of appeal is competent when it gives sufficient notice to the Respondent of the nature of the complaint of the Appellant. The point must be made that a ground of appeal must not necessarily be elegantly written or couched provided the opposite party can see the grievance of the Appellant. If it can be seen from the ground what the Appellant is unhappy about and the unhappiness is in relation to an aspect of the judgment, the ground of appeal will be competent in law. In NNPC vs Ibrahim & Ors (2014) LPELR-23999 (CA), this Court per Abba Aji, JCA (now JSC) held thus:
“A ground of appeal qualifies as a valid and proper one contemplated by the Rules of this Court if the ground of appeal states clearly what portion of a Court’s judgment or ruling it challenges and that portion is traceable from the judgment or ruling of that Court appealed against. See C.B.N. V SAP (Nig) Ltd (2005) 3 NWLR (Pt. 911) 152. Also in Kumalia V. Sheriff (2009) 9 NWLR (Pt. 1146) 423, it was held that the important consideration in the determination of the nature of a ground of appeal is not the form of the ground but the question it raises. It follows therefore that the issue formulated from the competent ground of appeal is also valid and competent.” See ITB PLC V OKOYE (2021) 11 NWLR (PT 1786) P. 163 at p. 191-192 paras A-B (SC).
The Supreme Court on this point has held that once it is established that all parties are seized of the knowledge of the substance of the complaint, an objection of incompetence is not necessary. See FRN v Oduah (2020) 12 NWLR (pt. 1737) p. 16 at p. 29 paras D-E (SC), FCMB Ltd v Ogbueli (2021) 10 NWLR (pt 1783) p. 1 at p. 24 paras B-F (CA). For a ground of appeal to be competent, it must only challenge the decision of the Court, that is the ratio and not what the Court has not decided on. See Okechukwi V. Onbiano (2020) 8 NWLR (Pt 1726) P. 276 at P 298 paras G-H (SC), Andrew & Anor vs INEC & Ors (2017) 7 S.C. 90; Chief Clement Okafor vs Anthony Abumofuani (2016) 12 NWLR (pt. 1525) 117. The question is not about the elegance of how the ground was drafted but rather whether it is done in such a way that the Respondent knows what is the complaint of the Appellant about the judgment.

Where the ground of appeal does not define the complaint against the decision appealed against, such a ground is said to be vague. A ground of appeal is vague when it is couched in such a way that it does not provide clear picture of what the complaint is, that is to say it is difficult to understand. See CBN vs Okojie & Ors (2002) LPELR-836(SC); Bamidele v. Bella (2020) 15 NWLR (PT 1748) p. 506 at p. 535 paras D The apex Court had this to say per Onnoghen, JSC (later CJN) in Cooperative & Commerce Bank Ltd & Anor vs EKperi (2007) 1 S.C. (pt II) 130 about competent ground of appeal and what to do with incompetent ground. This is what His Lordship said:
“It is settled law that for grounds of appeal to be valid and competent, they must be related to the decision being appealed against and should constitute a challenge to the ratio of the decision of appeal. It is still good law that where a ground of appeal as formulated does not arise from the judgment and purports to raise and attack an issue not decided by the judgment appealed against as is evident in the instant appeal, the same become incompetent and liable to be struck out.”

With the general principle stated above, it will not be out of place to test grounds 2, 3 and 5 on the premise of whether the complaint of the Appellant is against the judgment and such complaint stated in such a way that the Respondents can understand what is making the Appellant unhappy or dissatisfied about the judgment. At this point, I will reproduce the grounds of appeal challenged as follows:
Ground 2
The learned trial judge erred in law when he considered the case file before him as requested by the plaintiff but could not determine the matter according to the evidence in the case file which has occasioned a miscarriage of justice.
Ground 3
The learned trial judge erred in law when he held that where a party sets up res-judicata by way of estoppels as a bar to the other party’s claims the condition precedent must be established by evidence of the party setting up the defence of res-judicata which has occasioned as miscarriage of justice.
Ground 5
The learned trial judge erred in law when he relied on the written address of the defendants to substitute the evidence before the Court which has occasioned a miscarriage of justice.

I have painstakingly looked at the grounds and I make bold to say that I am unable to agree with the submission of the Respondents’ counsel that grounds 2 and 3 are vague and therefore liable to be struck out. The complaint of the Appellant against the judgment is clear and simply enough to be understood by the Respondents. In ground 2, the complaint of the Appellant is that the lower Court’s decision was not based on the evidence before the Court. The Appellant has shown from the ground 2 of the Notice of Appeal that the lower Court did not consider all the evidence before it and as such arrived at a decision which has occasioned a miscarriage of justice. The lower Court considered the case file but arrived at the decision contrary to the evidence in the case file. This is the complaint of the Appellant on ground 2. I cannot see anything vague about this ground of appeal. The lower Court at page 192 of the records which is part of the judgment had said he had carefully considered the pleadings and the evidence before it. At page 197-198 of the record which is part of the judgment of the lower Court, his Lordship specifically stated that he looked at the motion in Suit No; BOHC/MG/CV/104/2011 and the counter-affidavit in respect of the motion. The Appellant is challenging this aspect of the judgment in stating that if the lower Court actually considered all the evidence, it would have not reached the decision it reached. This is a complaint that the Respondents cannot be mistaking about what the problem of the Appellant is with the judgment.

The complaint on ground 3 is clear although that is not the correct finding of the Court however it can pass, since it had to do with the finding of the Court as it relates to res-judicata and what need to be proved to establish it. The decision of the lower Court in declining jurisdiction is based on the principle of res-judicata when the lower Court went into town in bringing out the conditions that must be satisfied before the principle is applicable in a case. The lower Court was exhaustive in relating the principle to the facts before the Court in arriving at the conclusion that the parties, subject matter and issues are the same between Suits No: M/11/2001 and BOHC/MG/CV/104/2011. Again, the complaint of the Appellant is clear and not vague at all.

I have taken a second look at ground 5, I am not sure that I am on all fours with the Appellant on this. I am unable to see anywhere in the judgment which suggest that the lower Court substituted the evidence before it for the submission of counsel. The evidence of the lower Court is based on the evidence before it and did not make the submission of counsel superior or take the place of evidence. The decision of the lower Court clearly was based on evidence before it, at this point I am not concerned with whether the decision is right or wrong but rather with whether the decision was based on evidence or address of counsel. At page 197-198 of the record, it is clear that the decision is based on the evidence and not on the address of counsel. This ground of appeal in my opinion is not competent as it is not based on the judgment of the Court. In relation to ground 5, I will strike it out not because it is vague but rather because it is not arising from the judgment.

For the objection which is filed as motion on notice on 6/10/21, it appears like a win-win situation as the objection succeeds in part. I am inclined not to strike out and indeed I refuse to strike out grounds 2 and 3. Ground 5 was not that lucky, I hereby strike it out. Issue 3 formulated by learned Appellant’s Counsel in the brief of argument is based on ground 5. Having struck out ground 5, issue 3 cannot stand too. In legal parlance, it is impossible to place something on nothing and expect it to stand. This is not possible. See U.A.C. vs Macfoy (1961) 3 ALLER 1169 at 1172. In the circumstance since issue 3 is formulated on ground 5, I hereby strike out issue 3. This is simply logical and common sense. The law is that issues do not just exist, they are based on grounds and therefore if the ground is not competent, the issue is also not arguable and all arguments on the issue will be discountenanced as it comes to no issue. See Base Development Limited vs A.G. of the Federation & Anor (2020) LPELR-51381(CA); Mallam Jimoh Atanda vs The Hon. Commissioner for Land and Housing, Kwara Satte & Anor (2018) 1 NWLR (pt 1599) 32; Ayoade vs State (2020) 9 NWLR (Pt 1730) p 577 at 594 paras A-G.

Having disposed of the objection, I will look at the main appeal and in doing so I will adopt issues 1 and 2 of the Respondent’s brief as the issues for determination in this appeal. For completeness and clarity, I repeat them for ease of reference:
1. Having regard to the facts and circumstances of this case was it proper in law for the trial judge who was assigned to try the case de novo, to have declined jurisdiction to try same on the ground that it was caught up by the doctrine of res judicata?
2. Whether the learned trial judge failed to consider material affidavit evidence on record before arriving at his decision.

For more than one reason I will look at issue 1 first. Numerically, the figure 1 comes before 2. That apart, issue 1 deals with the issue of jurisdiction and the law is trite that whenever the issue of jurisdiction is raised it must be determined first to avoid a wasteful journey. This is because any decision arrived by any Court without jurisdiction amount to a nullity no matter how brilliant. It amounts to a wasted effort like decorating a dead person with gold.

Without jurisdiction, no Court can delve into a matter. If a Court does that, it is like a journey into an endless pit or a journey without destination. Jurisdiction is the breath of a Court upon which it has life. The air a human being breaths that gives life is what jurisdiction is to a Court. Jurisdiction is the breath of a Court. As breath or air is important for the survival of a human being so is jurisdiction, important for the survival of a Court as it relates to handling matter. It is the life wire of a Court. Anything done without it amount to a waste of valuable time and resources as the whole proceeding and the decision no matter how brilliant amounts to a nullity. In Chief of Air Staff & Ors vs. Iyen (2005) 1 SC (pt. ii) 121, the Supreme Court held:
“A decision given by a Tribunal or Court without jurisdiction is a nullity. If the State High Court gives a decision on a case which falls within the exclusive jurisdiction of the Federal High Court, that decision is null and void and cannot sustain a plea of res judicata. In the same vein, if a Magistrate tries and convicts a person for murder for which he lacks jurisdiction to try the person so convicted cannot successfully raise a plea of autrefois convict to prevent a subsequent trial before a Court vested with jurisdiction to try him.”
See CBN v. Rahamaniya (2020) 8 NWLR (pt 1726) P. 314 at p 337 paras A-C
In Owner of the MV ‘Arabella vs. Nig. Agricultural Insurance Corporation NSCQR Vol. 34 2008, Ogbuagu, JSC, His Lordship affirms the above position in these words:
“Judgment or order by a Court without jurisdiction is a nullity. If a Court is shown to have no jurisdiction, the proceedings however well conducted, are a nullity.”

It is also worthy of note that the decision of the lower Court was based on lack of jurisdiction which in substance is the main issue in this appeal. I must settle this issue before making up my mind, if need be to go further. The lower Court has held that based on Suit No: M/11/2001 which has been determined by a Court of competent jurisdiction against the Appellant which decision this Court has affirmed in Appeal No: CA/G/64/2017, it has no jurisdiction to determine Suit No: BOHC/MG/CV/104/2011. If it was as easy as that, there would have been no challenge.

The twist in this appeal is that, there seem to be two decisions from the same High Court presided over by two different judges on the matter of abuse of Court process and res-judicata. The main issue here is whether, in the light of the decision of Justice C.A. Mamza to the effect that Suit No: BOHC/MG/CV/104/2011 is not an abuse of Court process despite the decision of the High Court in Suit No: M/11/2001 on the premise that the parties are not the same, the decision Umaru, J. on the same case that Suit No: M/11/2001 operates as estoppel because the parties are the same will be correct simply because the case came before Umaru J. de novo. To answer this question, it will not be out of place to look at what is the effect of a case commenced de novo with specific reference to earlier order made in the previous proceedings. The answer to this question will determine to a large extent which way this appeal will go all things been equal.

It is appropriate at this stage to take a little excursion into the legal position on matters or cases starting de novo.

What is therefore the meaning, implication and the legal effect of matters commenced de novo?
On what a trial de novo means, the Court has in line with the Black’s Law Dictionary has said that such a trial means a new trial in the entire case on both questions of fact and issues of law conducted as if there had been no trial in the first place. The implication of this seem to be that the latter judge trying the matter has the power to review the Court decision or order giving in the earlier trial. The Court is not bound by the findings and order of the earlier Court. The latter Court will close its eyes to any of the proceedings in the earlier Court. See Kenneth Anielo & Anor vs Okafor Madubia & Ors (2018) LPELR-44681(CA); Ukandu vs FRN (2020) LPELR-50272. The locus classicus on this is Babatunde vs Pan Atlantic Shipping and Transport Agencies Ltd & Ors (2007) LPELR-698 (SC). The apex Court in the Babatunde case held thus:
“The Latin maxim “de novo” connotes a ‘New’, ‘Fresh’, a ‘beginning’, a ‘start’ etc. In the words of the authors of Blacks Law Dictionary, de novo trial or hearing means ‘trying a matter anew, the same as if it had not been heard before and as if no decision had been previously rendered … new hearing or a hearing for the second time, contemplating an entire trial in same manner in which the matter was originally heard and a review of previous hearing. On hearing ‘de novo’ Court hears matter as Court of original and not appellate jurisdiction … that a trial de novo could mean nothing more than a new trial. This further means that the plaintiff is given another chance to relitigate the same matter, or rather, in a more general sense, the parties are at liberty, once more to reframe their case and restructure it as each may deem it appropriate.” See the case of Biri v. Mairuwa (1996) 8 NWLR (Pt. 467) 425 at page 433 paragraphs A-B and F-G. This is an auspicious occasion for me to improve on what I said before (quoted above) and I will quote with approval, the dictum of Oputa, JSC in Kajubo v. The State (supra): “The expressions “a new trial” “trial de novo” “retrial” “fresh hearing” “trial a second time” have been freely used in these judgments. This suggests that these expressions are interchangeable as they relate to the concept that is the finding out by due examination of witness the truth of a point in issue or a question in controversy whereupon judgment may be given.”
The consequence of a retrial order or a de novo (a VENIRE DE NOVO), is an order that the whole case should be retried or tried anew as if no trial whatsoever has been had in the first instance. See Kajubo v. The State (supra). In 1978, this Court per Idigbe, JSC, in the case of Fadiora v. Gbadebo (1978) NSCL (Vol. 1) 121; (1978) 3 SC 219 had cause to make the following observation. “We think that in trials de novo the case must be proved anew or rather re-proved de novo and therefore, the evidence and verdict given are completely inadmissible on the basis that prima facie they have been discarded or got rid of.”
In trial de novo, the later Court is completely blank on the former proceedings and orders as the parties are at liberty to restructure their case in any way they desire as the later Court cannot make reference to what has been done before to serve as estoppel in the new trial. De novo means that it is fresh and new. The case is like a newly instituted case, the only difference is that no fresh filing fees is paid. In case commenced de novo, no previous order made can bind the new judge.

To sound more relevant and specific as it relates to the case that cumulate to this appeal, the general position of commencing the case de novo means that Justice Umaru is not bound by the decision and the finding of Hon. Justice Mamza on the subject of abuse of Court process or res judicata and indeed it is not bound to follow the finding that the parties are not the same. The lower Court and indeed his Lordship Umaru J., has the right, like he has done, to take a position on the issue before him as to whether Suit No: M/11/2001 operates as estoppel or not. This his Lordship has done. This is the general position.

The question is therefore, whether there is anything in this case that could be a game changer on the general legal principle stated above.

The Appellant’s main argument is that this general position should not apply in the case before this Court as there is an appeal before this Court challenging the decision of Mamza J on the subject of the abuse of Court process. I do not think that make any much of a difference. I say so for two reasons. The first been that there is no evidence before this Court on the status of the appeal today, that is whether the appeal has been disposed of or still pending. The Appellant has the duty in law to give evidence to that effect so that this Court can make an informed decision. There is no such evidence. This does not help the case of the Appellant at all. Secondly, the appeal was filed by the Defendant that is the Respondent in this appeal. The party that filed that appeal is the Defendant who eventually is the successful party in the case. For clarity, the decision of the lower Court which is appealed against went against the Appellant and in favour of the Respondent who had filed the appeal against the decision of Mamza J. The Appellant having not informed this Court on the status of that appeal before this Court. There is no way I am to know the outcome of that appeal. Exhibits ABG1 and ABG2 all show that, leave was sought to appeal the decision of Mamza J. There is nothing in the record or in the address of counsel to show whether this Court has ruled on the motion and what is the status of that appeal. Taking an excursion to the record of appeal and the Exhibits before the lower Court there is nothing to show that the appeal filed in 2013 is still pending. The duty is on the Appellant who wants to use the pendency of that appeal to truncate the decision of the lower Court to give material facts and evidence to show that the appeal on the decision of Mamza J is still pending. The Appellant is the one alleging or asserting the existence of a fact, the duty is on him to prove. See Dasuki vs FRN & Ors (2018) 2-3 S.C. (pt i) 107; Ekweozor v Reg. Trustees SACN (2020) 11 NWLR (PT 1734) P. 58 at P. 88-89 paras D-A (SC).

The lower Court presided over by Umaru J., was in order when it did not consider itself bound by the decision of Mamza J over the subject of abuse of Court process or the finding that the parties in Suit No: M/11/2001 and BOHC/MG/CV/104/2011 are not the same. His Lordship has the right to take its own decision since the matter commenced de novo before him.

Having settled that it is now appropriate to look at whether the lower Court was right in its decision that Suit No: M/11/2001 operates as res-judicata to BOHC/MG/CV/104/2011.

The law on what the party relying on res-judicata need to prove has been established beyond all doubt. The main principles are that the previous decision must be decided on the merit by a competent Court between the same parties over the same subject matter involving the same issue with the current case. See Balogun vs Adejobi & Anor (1995) LPELR-724 (SC). One or two cases on this point will no harm anyone. The doctrine applies to stop a party or his privies or representatives from litigating over a matter that has been decided on the merit by a competent Court between the same parties or their privies and representatives over the same subject matter. For the doctrine to apply, the party seeking to apply same must show that the parties are the same, the subject matter is the same and the matter has been decided on the merit by a competent Court. In OGBOLOSINGHA & ANOR VS. BAYELSA STATE INEC & ORS (2015) LPELR-24353 (SC) 27-29, the Supreme Court per Ogunbiyi, JSC held:
“The law is trite in laying down the fundamental condition precedent to the application of the principles of estoppel and or res judicata wherein the parties and the subject matter of the previous proceedings must be the same with the present under consideration. Judicial authorities have enunciated the principles which are well pronounced in the case of MAKUN VS. F. U. T. MINNA (SUPRA) wherein this Court re-iterated that, for a plea of estoppel per rem judicatam to succeed, the party relying thereon must establish the following requirements or pre-conditions namely:-
(a) That the parties or their privies are the same in both the previous and the present proceeding.
(b) That the claim or issues in dispute in both actions are the same.
(c) That the res or the subject matter of litigation in the two cases is the same.
(d) That the decision relied upon to support the plea of estoppel per rem judicatam is valid, subsisting and final.
(e) That the Court that gave the previous decision relied upon to sustain the plea is a Court of competent jurisdiction.
It has also been held severally by this Court that, unless all the above constitutional elements or requirements of the doctrine are fully established, the plea of estoppel per rem judicatam cannot sustain. See also the decisions in YOYE VS. OLUBODE (1974) 10 SC 209; ALASHE VS. OLORI-ILU (1965) NMLR 66; FADIORA VS. GBADEBO (1978) 3 SC 219 and UDO VS. OBOT (1989) 1 SC (PT.1) 64.
Further still, His Lordship Onu, JSC re-affirmed the principle in the case of DOKUBO VS. OMONI (SUPRA) wherein he held at page 659 and said:
“It is settled that for the doctrine of estoppel per rem judicatam to apply, it must be shown that the parties, issues and subject matter in the previous action were the same as those in the action in which the plea is raised. See ALASHE VS. OLORI-ILU (1964) 1 ALL NLR 390 @ 394; BALOGUN VS. ADEJOBI (1995) 2 NWLR (PT. 376) 131 and FALEYE VS. OTAPO (1995) 3 NWLR (PT. 381) 1.”
From the cumulative summary of the foregoing authorities, it is clear that the existence of the principle is entirely a question of fact for purpose of establishing whether the parties and their privies, the facts in issue and the subject matter of the claim are the same in both the previous and the present suits.
The plea of res judicata is of a special nature as it operates not only against the parties but also the Court itself and robs it of its jurisdiction to entertain the same cause of action on the same issues previously determined between the same parties by a Court of competent jurisdiction.”
See also Ihenacho v. Egbula (2021) 14 NWLR (pt 1795) p. 174 at p.202 paras B-D; 209 F-H (SC)

For the lower Court to be correct in its decision, there must be evidence that Suit No: M/11/2001 was a final decision of a competent Court, the High Court over the same property between the same parties and decided on the same issues as in Suit No: BOHC/MG/CV/104/2011. The lower Court at pages 193-197 of the record which contained the judgment of the Court has shown that all the ingredient for the operation of the principle of res-judicata existed.

I agree with the lower Court as there is no dispute that the decision is a final decision which on appeal as CA/G/64/2016 was upheld on 22/7/2021. The subject matter is the land measuring 300ft by 250ft situated at Bolori Ward adjacent to Ibrahim Taiwo Housing Estate Maiduguri. The claim was for ownership of the land in dispute and this made the subject matter to be the same. All the above are not in dispute at all.

The area that calls for some more discussion is whether the parties are the same. On the face value, it would appear they are not exactly the same as the Defendant in both cases seems to be different at least by name. The Defendant in BOHC/MG/CV/104/2011 are Baba Modu Butu, Talba Zanna Laisu, Goni Kolo Gana, Baba Kolo Modu Monguno, Awana Modu Monguno and Abba Modu Monguno. They all got involved in the property as privies to the person the property was allocated to, Alhaji Bukar Bolori, the proprietor of Bolori Arabic school. The property was allocated to the Defendant in suit No: M/11/2001, that is Alhaji Bukar Bolori. He was sued for and on behalf of Bolori Arabic School. The evidence of DW4 found on pages of the record shows that the connection of all the Defendants in the suit cumulating to this appeal flows from Ahaji Bukar Bolori. This evidence is not challenged. This apparently makes the Respondents privies in estate to Alhaji Bukar Bolori, the proprietor of Bolori Arabic School. To that extent, the Defendants in the suit cumulating to this appeal, that is to say the Respondents are privies in estate to the Defendant in Suit No: M/11/2001. This is because their interest is from Alhaji Bukar Bolori, and by law they are privies in estate to him as their interest is from him.

This Court defined who a privy is in Teri vs Augustine (2021) LPELR-52655 (CA) when his Lordship Abundaga, JCA held adopting the definition in Agbogunleri vs DEPO & Ors (2008) LPELR-243 (SC) thus:
“I shall now proceed to consider the second plank of the first issue. I want to commence it with an appreciation of the definition of the term Privy. The definition of who is a privy in the case of Agbogunleri vs. DEPO & Ors (2008) LPELR-243 (SC) is apt. In the said case, the Supreme Court defined privy thus:
“But, who is a privy? In Arabio v. Kanga (1932) 1 WACA 253 at p. 254, a privy was defined as that person whose title is derived from and who claims through a party. It may also imply identity of successive interest or persons having interest in property.”
Per MUHAMMAD, J.S.C (P. 23, paras. C-D).
See also the case of Makami vs. Umaru (2013) LPELR-20799 (CA), Pp. 12 13, paras G B. It is evident from the pleadings and evidence that both the Appellant and Respondent traced their title to the Ministry of Housing and Electrification and Ministry of Housing and Environment. No doubt, it is appropriate to define both the Housing Corporation represented by the Ministry and Rural Electrification, Borno State and the Attorney General, Borno State as privies of the Appellant and the Respondent.“
As privies, the decision of the Court in Suit No: M/11/2001 is binding on them as they can enjoy the benefit or the liability from that judgment.

To that extent, the parties are the same in the two cases. The first issue is resolved in favour of the Respondent. The direct answer to the inquiry raised in the first issue is to the affirmative. The lower Court was right in declining jurisdiction on the ground that it is caught by the principle of estoppel per rem judicata.

I am wondering whether after affirming the decision of the lower Court as shown in issue 1, is it necessary to still handle issue 2. I really do not think so since I have held that the lower Court rightly declined jurisdiction and was right in not been bound by the earlier decision of his Lordship, Mamza J., when the matter started de novo with him. I have also gone a step forward to consider whether the lower Court was so right when it found as of certainty that the Suit No: M/11/2001 operates as res-judicata taking into cognizance the condition for the operation of the principles. I have agreed with the lower Court that the subject matter, the issues and the parties are the same. Having gone to that length, I really do not think I need to consider issue 2 anymore. However for whatever it is worth, I will still look at issue 2 which apparently has to do with fair hearing. The Appellant is alleging that the lower Court did not give him fair hearing before arriving at the decision since as he alleged, the lower Court did not consider the further affidavits of the Appellant against the counter affidavit of the 2nd Defendant/Respondent and the further affidavit to the 1st and 3rd Defendants/ Respondents. These further affidavits are found at pages 69-98 of the record to which are attached document tendered as Exhibits ABG1 and ABG2.

It is customary and conventional for parties and counsel who have a bad case to try as much as possible to smuggle in denial of fair hearing as a ground. The Appellant in this appeal has followed that tradition also. I have said it elsewhere that it is not right for a party to allege denial of fair hearing simply because he has lost a case or the Court decided against a point he raised. This is not what fair hearing is all about. The concept of fair hearing arises or is hinged on the twin pillar of Nemo judex in causa sua and audi altream partem. See Crutech vs Agbor (2020) LPELR-50222 (CA); Nwabueze vs People of Lagos State (2018) 11 NWLR (pt 1630) 207. To meet the requirement of fair hearing, parties in a suit must be giving equal opportunity to present their case and when this is done a party who fails to present his case cannot complain of lack of fair hearing. The Supreme Court has cautioned counsel not to use the issue of denial of fair hearing as a magic wimp as that is not what it is meant for. See Ayoade v. State (2020) 9 NWLR (pt 1730) p. 577 at p. 594 paras A-G.

The Appellant’s allegation of the denial of fair hearing is based on the premise that the lower Court did not consider the further affidavit he filed in opposition to the counter-affidavit filed by the Respondents. The best place to look to confirm or disabuse this allegation is the judgment of the lower Court found at pages 183-198 of the record. I have looked at the judgment and of a truth, no specific reference was made of the further affidavit of the Appellant but the lower Court while considering whether the decision in Suit No: M/11/2001 operates as res-judicata decided same based on the law and facts. The contention here is that should the lower Court have specifically made reference to the further affidavit of the Appellant, the decision would have been different. I do not think so, because the lower Court operated squarely on the legal position of actions commenced de novo. It is of interest that the Appellant in his counsel address at the lower Court did not make it an issue for determination and indeed it was not made part of his address found at pages 147-169 of the record. The address was filed on 20/7/16 while the further affidavit was filed on 7/10/15. If it was to be made an issue by the Appellant, it should have been brought up in the address.

The Appellant’s counsel has urged this Court to use the powers under Section 15 of the Court of Appeal Act to do the work the lower Court would have done when it failed to do so. Accepting that invitation, I have looked at the further affidavit and understood the content clearly. The point raised there is that there is an appeal against the decision of Mamza J., and therefore, in commencing the suit de novo, Umaru J should have respected that decision. This is the purport of referring to those affidavits. This is not just a Court of law but also and much more a Court of justice and in so doing ensure that substantial justice is done.

I had mentioned above that there is no evidence before this Court to show the status of the appeal filed in September, 2013. The party who filed the appeal, the interlocutory appeal, is the Respondent who eventually won the case at the lower Court. It stands to reason that such an appeal cannot be pursued by the Respondent anymore. I cannot see any miscarriage of justice in any way we look at it. I resolve this issue in favour of the Respondents.

The decision of this Court on this matter is obvious. This appeal fails and it is dismissed. The judgment of Hon. Justice F. Umaru in Suit No: BOHC/MG/CV/104/2011-Alhaji Bukar Gonimi vs Babagana Modu Butu & Ors is hereby affirmed.

Cost of N200,000 is awarded against the Appellant in favour of the Respondents.

JUMMAI HANNATU SANKEY, J.C.A.: I have read in advance the judgment just delivered by my learned brother, Ebiowei Tobi, J.C.A. I agree with his reasoning and conclusion and will only say a few words on the issue of whether or not the learned trial Judge was right when he came to a decision that the suit before him constituted res judicata.

The facts leading to this appeal have been well captured in the lead judgment and so I will not re-hash them here. Suffice it to say that the crux of the appeal is the grievance of the Appellant with the decision of the lower Court declining jurisdiction to determine the case before it, i.e., Suit No. BOHC/MG/104/2011, on the ground that the same suit had been heard by a Court of competent jurisdiction presided over by Mamza, J. in Suit No. M/11/2001, and so it was caught by the principle of estoppel per remjudicatam and amounted to an abuse of Court process.

The Appellant’s contention is that since the suit was commenced before the lower Court de novo, before Umara, J., who rendered the decision complained of, he was not bound by the decision of Mamza, J. Therefore, that the case was not caught by the principle of res judicata. However, after scrutinizing the processes placed before the lower Court, it is apparent that the parties before the Court were the same since the Respondents in Suit No. M/11/2001 were privies of the Appellant herein, having acquired their interest in the property in dispute from him – Agbogunleri V Depo (2008) LPELR-243(SC), the subject matter was the same being the land measuring 300ft by 250ft situated at Bolori Ward adjacent to Ibrahim Taiwo Housing Estate, Maiduguri, the claim before both Courts was for ownership of the land in dispute, the suit was decided by a Court of competent jurisdiction and the decision was final – Ogbolosingha V Bayelsa SIEC (2015) LPELR-24353(SC) 27-29; Ihenacho V Egbula (2021) 14 NWLR (Pt. 1795) 174, 202; 209. What is more, the decision of Mamza J., in Suit No. M/11/2001 went on appeal as Appeal No. CA/G/64/2016, and it was upheld by the Court of Appeal on 22-07-21.
Based on all the above, I am of the view that all the features of res judicata were present in the matter presented to the lower Court to be tried de novo. That being the case, the learned trial Judge was right when it declined jurisdiction on the ground that the suit was caught by the principle of estoppel per rem judicatam.

Consequently, I find no reason to disturb the sound findings of the lower Court. I therefore dismiss the appeal and abide by the consequential orders in the lead judgment, inclusive of the order as to costs.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother EBIOWEI TOBI, JCA. I am in full agreement with the reasoning and conclusion therein. I have nothing more to add as the leading judgment has exhaustively treated all salient issues in this appeal.

I abide by the consequential orders in the leading judgment.