CORAM

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ITA.G. MBABA (PJ), OFR, Justice Court of Appeal

PATRICIA A. MAHMOUD, Justice Court of Appeal

PETER O. AFFEN, Justice Court of Appeal

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PARTIES

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ADAMU ABUBAKAR

APPELLANTS 

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YOHANNA RAI

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, EVIDENCE, LAND LAW, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

At the trial Area Court Uba, the Appellant herein was the Plaintiff seeking declaration of title to the Customary right over the land situate at Uba Mayo Bani, Mubi North Local Government Area Adamawa State as the beneficial owner and an interlocutory injunction restraining the defendant and his privies from trespassing the land. The Defendant did not call any witnesses but raised the issue of res judicata which was dismissed by the trial court.

The Trial Area Court Judge, held that the Plaintiff was the true beneficial owner of the land and granted the injunction sought.

Dissatisfied, the Defendant, as Appellant, filed an appeal against that decision of the Trial Area Court, and after hearing the Appeal, the learned High Court Judge allowed the Appeal and upheld the plea of res Judicata (the case having been previously tried by the same court involving the same parties and their privies and even went on appeal).

Aggrieved by that decision, the Appellant herein appealed the decision of Adamawa State, High Court, sitting in its appellate jurisdiction in Appeal.

 

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HELD

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Appeal dismissed

 

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ISSUES

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1. Whether the Respondent appeal before the lower Court filed on the 19th of December, 2019, without seeking for extension of time and leave to appeal against the issue of res judicata determined by the trial court on 18th October, 2019, was competent to cloth the lower Court of jurisdiction to determine the appeal on that issue?

2. Whether in the instant case there was evidence before the lower Court that the disputed land has already been litigated upon by the parties and judicially determined in a final manner between the parties or their privies by a Court or tribunal for the defence of res judicata to avail the respondent?

3. Whether the judgment of the lower Court is perverse and occasioned a miscarriage of justice?

 

 

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RATIONES DECIDENDI

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APPEAL – CONDUCT OF PARTIES WHEN APPEALING INTERLOCUTORY RULINGS

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Appellate Court often discourages aggrieved parties from jumping on appeal against interlocutory ruling, when the point of grievance can abide the final judgment, and the party can wait and take up and ventilate such grievance at the final decision of the trial Court, as a whole. See Paragraph 4(e) of the Court of Appeal (Fast Tract) Practice Directions, 2021, which states:

“Active case management includes:

Discouraging interlocutory appeals and requiring parties, except in the most deserving cases, to subsume their interlocutory matters under a final appeal or under the substantive suit at the trial Court.”

See also the case of NJC Vs Agumagu & Ors (2014) LPELR – 24049 (CA), where this Court held:

“This Court has always depreciated the act by Counsel of using interlocutory appeals to frustrate the hearing and determining of substantive matters, and I think this is one of the reasons the Practice Direction, 2013, came to being. See the case of Nwana Vs UBN Plc (2013) LPELR – 21823 CA, where it was held that, where a party’s right of appeal will not be affected, if he awaits the final determination of the trial on the merits, it is proper to exercise patience, rather than jumping on appeal over issues that only serves to delay the trial.” – Per I. G. Mbaba, JCA

 

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LEAVE OF COURT – WHEN LEAVE OF COURT IS A REQUIREMENT TO APPEAL AGAINST INTERLOCUTORY DECISION OF THE LOWER COURT

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In the case of Igbokwe Vs Edom & Ors (2015) LPELR- 25576 (CA), this Court explained when leave of Court is required to appeal against interlocutory decision of the Lower Court, and when such appeal can be subsumed in the final judgment of the trial Court, as follows:

“It can be appreciated that this appeal is one against the final decision of the trial Court, reached on 14/11/2006, which by law, is appealable as of right, pursuant to Section 241(1)(a) of the 1999 Constitution, as Amended. “An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases — (a) Final decisions in any Civil or Criminal Proceedings before the Federal High Court or a High Court sitting at first instance…” The decided authorities on this is replete, but the law also stipulates that where Appellant appeals against an interlocutory decision of a Court, reached in the course of the trial and which decision does not form part and parcel of the final decision of the trial Court, Appellant must seek the leave of the Lower Court or of the Court of Appeal to raise such appeal, belatedly, especially, where the ground of appeal is not a question of law, alone. That means, when, at the time of the final decision of the trial Court, the issue relating to the interlocutory decision of the trial Court remains a live issue, Appellant does not require any leave of Court to raise that issue or ground of appeal when appealing against the final decision of the trial Court. For instance, I think an interlocutory decision against admission of exhibit remains a live issue in the case, at the final decision and a ground of appeal against the use of the said Exhibit would not require the leave of Court to raise it, since the offending exhibit was made part of the final decision, having been relied upon to reach the final decision. See the case of Adeyinka Ajiboye Vs FRN (2013) 17 WRN 127 “Sometimes, a little patience and tact, on the part of Counsel, would suggest lying low and marking down what could have been a point of interlocutory appeal, and opting to take it up at the end of the trial, if the issue for interlocutory appeal would not cease to be a live issue in the final Judgment of the trial Court. Thus, where a party has cause to disagree with an interlocutory ruling of the trial Court over an issue, which the party will not be foreclosed to raise at the final judgment of the substantive matter, I think the party (or his Counsel) should not rush to the Court of Appeal on the issue and stall the trial of the case at the Lower Court…” See also Nwana Vs UBN PLC (2013) LPELR – 21823 (CA); Garba Vs Ummuani (2013) 12 WRN 76, where it was held: “Since the Order made by the Lower Court evinces an interlocutory decision, the law compels the appellants to seek and obtain leave of Court before appealing against it. In the eye of the law, leave simply connotes permission. The law insists that where the leave of Court is required before doing an act and it is not obtained, the act is rendered null and void.” See Section 14(1) of the Court of Appeal Act, 2011, Otu Vs ACB Int’l Bank Ltd (2008) 3 NWLR (pt.1073) 179; BBN Ltd vs Olayiwola & Sons Ltd (2005) 3 NWLR (pt.912) 434; Nwaolisah Vs Nwaobufoh (2011) 14 NWLR (pt.1268) 600. See also Kwazo Vs Railway Property Co. Ltd & Ors (2014) LPELR – 23737 CA.”

See also Anachebe Vs Ijeoma & Ors (2014) 14 NWLR (Pt.1426) 168, where the Apex Court held:

Leave to appeal is required only when the Judgment sought to be appealed is not a final judgment or the appeal is on grounds other than law. If the appeal is one that can be filed as of right then if the applicant is out of time he has to seek for extension of time to appeal and not leave to appeal. – Per I. G. Mbaba, JCA

 

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COUNSELS – DUTY OF COUNSELS TO THEIR CLIENTS

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Every Counsel owes his Client the duty of honest disclosure and advice, and I think where a claim has jammed the legal rocks as in the issue of res-judicata, Counsel should admit the reality, that they cannot progress any further, as in the case, and tell the parties the truth, as the litigants are entitled to be told the truth and advised to rest, and pursue peace, instead of grandstanding and waste of funds, time and resources to pursue a farce. – Per I. G. Mbaba, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Court of Appeal (Fast Tract) Practice Directions, 2021

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