CORAM

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Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria

Chidi Nwaoma Uwa Justice of the Supreme Court of Nigeria

Obande Festus Ogbuinya Justice of the Supreme Court of Nigeria

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PARTIES

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ANTHONY DAMISA TIPUT

(For himself and on behalf of Denan Sarkin Bungha’s Family)

APPELLANTS 

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1. HALILU ALI DAWAMKAT

(Alias Halilu Yasa Dawamkat)

2. IBRAHIM VERENGTU

(For themselves and on behalf of Dawamkat’s Family)

RESPONDENTS 

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AREA(S) OF LAW

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LAND LAW, RES JUDICATA, ESTOPPEL, CIVIL PROCEDURE, PRACTICE AND PROCEDURE, EVIDENCE, JURISDICTION, APPEAL, PLEADINGS

 

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SUMMARY OF FACTS

This case has a chequered history dating back to 1983, involving a protracted land dispute between two families in Mangu, Plateau State – the Denan Sarkin Bungha’s Family (represented by the Appellant) and the Dawamkat’s Family (represented by the Respondents).

The Appellant commenced Suit No. PLD/P.28CV/2013 at the High Court of Plateau State in October 2013, seeking declaratory and injunctive reliefs against the Respondents regarding a piece of land. In his Statement of Claim, the Appellant described the disputed land in paragraphs 5, 6, and 7 as: “all that piece of land lying and or situate along the Jos-Pankshin tarred Road” to the right of the said road, bounded by farmlands of various persons including the land on which Mangu General Hospital is built (which was acquired from Sarkin Bungha’s family by the Government), and bounded by the Dang Bungha River/Stream to the East.

Upon receipt of the writ of summons and statement of claim, the Respondents filed a Statement of Defence. On November 19, 2013, the Respondents also filed a Notice of Preliminary Objection challenging the competence of the suit on the ground of res judicata. The Respondents’ objection was predicated upon an earlier decision of the Grade I Area Court, Mangu, in Suit No. CV/323/1983, between Mai-Angwa Dawap of Millet (alias Dawamkat) and Sarkin Bungha Denan of Bungha – the predecessors of the respective parties in the present case.

In that earlier case (CV/323/1983), decided on July 14, 1983, the Area Court declared title to land in favor of Mai-Angwa Dawamkat. The land was described as bounded “from the South to the North… with boundary with the valley of the stream. Then he turned to the east and also turned to the South from stream. Then he turned to the east and also turned to the South from the end of the tarred road, he has boundary with the tarred road which goes to Jos.”

The Appellant contended that the present suit was not caught by res judicata from CV/323/1983, but rather related to a different piece of land that was the subject of another case – Suit No. CV/79/1985 between Alhaji Shuaibu and Sarkin Bungha Denan. In that 1985 case, the Upper Area Court held that Denan Sarkin Bungha (the Appellant’s progenitor) was the owner of land surrounding the entire Mangu General Hospital. The Appellant argued that Mai-Angwa Dawamkat had testified in that case (CV/79/1985) as PW1, stating that his land shares boundary with the land in dispute.

The trial High Court heard counsels on the Preliminary Objection and delivered its ruling on April 28, 2016, dismissing the suit on the ground that it was caught up by the doctrine of res judicata. The trial court found that the subject matter in Suit No. PLD/P.28CV/2013 and in Case No. CV/323/1983 were in respect of the same piece of land that was being disputed by the parties.

Dissatisfied with the ruling, the Appellant appealed to the Court of Appeal, Jos Judicial Division (Appeal No. CA/J/43/2017). On February 1, 2019, the Court of Appeal affirmed the ruling of the trial High Court, holding that the suit was properly struck out as it was caught up by res judicata. The Court of Appeal also awarded costs of N100,000.00 to the Respondents.

Still dissatisfied, the Appellant appealed to the Supreme Court.

 

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HELD

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1. The appeal was dismissed for lacking in merit.

2. The Supreme Court held that the Court of Appeal was correct in affirming the trial Court’s ruling that Suit No. PLD/P.28CV/2013 was caught up by the doctrine of res judicata based on the earlier decision in Suit No. CV/323/1983.

3. The court found that all the conditions for the successful application of res judicata were satisfied: (i) there was an adjudication of the issues joined by the parties in the earlier case; (ii) the parties (or their privies) were the same in both cases; (iii) the issue and subject matter were the same in both cases; and (iv) the previous decision finally decided the issues between the parties.

4. The court held that the land described in the Appellant’s Statement of Claim in the present suit (bounded by Jos-Pankshin tarred road on one side and River/Stream on the other) had the same features as the land described in the earlier judgment in CV/323/1983.

5. The court held that the Court of Appeal did not err in failing to separately d etermine issue 2 raised in the Appellant’s brief, as that issue was subsumed in the other issues determined by the court.

6. The judgment of the Court of Appeal dated February 1, 2019, was affirmed.

 

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ISSUES

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1. Whether the Court of Appeal was right when it affirmed the decision of the trial Court that Suit No. PLD/P.28CV/2013 between the parties was caught up by the doctrine of res judicata in view of the decision of the Area Court Mangu in Suit No. CV/323/1983 between Mai-Angwa Dawap of Millet and Sarkin Bungha Denan without considering or looking at another decision of the Upper Area Court in Suit No. CV/79/1985 between Alhaji Shuaibu and Sarkin Bungha Denan before arriving at its judgment?

2. Whether the Court of Appeal was right to have affirmed the decision of the trial Court that Suit No. PLD/28CV/2013 was caught up by res judicata without looking at the pleadings of the parties, and Exhibits G, G1 and G2 attached to the Appellant’s counter-affidavit, wherein the Respondents had admitted that the land in dispute in Suit No. PLD/P.28CV/2013 is different from the land declared in favour of their father in Suit No. CV/323/1983?

3. Whether the learned Justices of the Court of Appeal were right when they failed and neglected to determine issue 2 formulated by the Appellant in his brief, and if the answer is in the affirmative, whether the failure has not occasioned a miscarriage of justice against the Appellant?

 

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RATIONES DECIDENDI

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RES JUDICATA – DEFINITION AND PURPOSE

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The fundamental object of the doctrine of res judicata is to put an end to a matter that was previously litigated by the same parties and determined on the merits by a Court of competent jurisdiction. The whole purpose is to avoid duplicity (multiplicity) of litigation, thereby saving so much litigation time and expenses. Thus, the essence of the doctrine of res judicata is that a previous judgment or decision of the Court would constitute a bar to a later action. – Per IBRAHIM MOHAMMED MUSA SAULAWA, JSC

 

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RES JUDICATA – FUNDAMENTAL PRINCIPLE

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It’s a well settled doctrine, that once an issue has been raised and specifically adjudicated (decided) between the parties, neither party can be allowed to litigate the case or issue all over again. The rule is that once an issue has been raised and distinctly decided between the parties, then as a general rule neither party can be allowed to fight the issue all over again. The same issue cannot be raised by either of them in the same or subsequent proceedings. – Per IBRAHIM MOHAMMED MUSA SAULAWA, JSC (citing Lord Denning in Fedelites Shipping Co. Ltd v. V/D Export Child)

 

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CONDITIONS FOR SUSTAINING PLEA OF RES JUDICATA

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To sustain a plea of res judicata, the party pleading same must satisfy the following conditions: (i) That there was an adjudication of the issues joined by the parties. (ii) That the parties (or their privies) are the same in the present case as in the previous case. (iii) That the issue and subject matter are the same in the previous case as in the present case; (iv) That the previous decision must have finally decided the issues between the parties, that is, the rights of the parties were finally determined. – Per IBRAHIM MOHAMMED MUSA SAULAWA, JSC

 

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STATUTORY FOUNDATION OF RES JUDICATA

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Section 173 of the Evidence Act, 2011 which gives statutory foundation to the plea of estoppel per rem judicata provides thus: ‘Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the Court, and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.’ – Per CHIDI NWAOMA UWA, JSC

 

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BURDEN OF PROOF IN RES JUDICATA

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It is trite that unless all of the above pre-conditions are established the plea of estoppel per rem judicatam cannot be sustained. The burden is on the party who sets up the defence of estoppel per rem judicatam to establish the above pre-conditions conclusively. – Per CHIDI NWAOMA UWA, JSC

 

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FORMULATION OF ISSUES FOR DETERMINATION

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It’s a trite fundamental doctrine, that an issue for determination in an appeal must not only arise from, and relate to the grounds of appeal filed, but also ought to be such a proposition of law or fact or both so cogent, weighty and compelling that a decision thereupon in favour of a party to the appeal would entitle him to the judgment of the Court. – Per IBRAHIM MOHAMMED MUSA SAULAWA, JSC

 

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PURPOSE OF FRAMING ISSUES

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The fundamental objective of framing issues is simply to lead to a more judicious and proper determination of an appeal. That’s to say, the primary purpose of formulating issues is to narrow the issues in controversy in the interest of accuracy, clarity and brevity. – Per IBRAHIM MOHAMMED MUSA SAULAWA, JSC

 

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DUTY TO DETERMINE ALL ISSUES – EXCEPTION FOR SUBSUMED ISSUES

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It’s trite law, that when a party raises an issue for determination, the Court must unreservedly pronounce on same. However, there is an exception to that general rule. That’s where the issue so submitted is subsumed in another issue, it should no longer be necessary for the Court to make a separate pronouncement on the issue subsumed. – Per IBRAHIM MOHAMMED MUSA SAULAWA, JSC

 

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SUBSUMED ISSUES – NO SEPARATE PRONOUNCEMENT REQUIRED

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It is trite that when a party submits an issue to a Court for determination, that Court must make a pronouncement on the issue except where the issue subsumed in another issue. Where that happens, there shall no longer be the necessity of making a separate pronouncement on the issue subsumed. – Per IBRAHIM MOHAMMED MUSA SAULAWA, JSC (citing Adebayo v. AG Ogun State)

 

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INTERFERENCE WITH CONCURRENT FINDINGS

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As it pertains to the concurrent findings of two lower Courts, an appellate Court will not interfere unless there be exceptional circumstances to justify such interference. Nor would there be interference with the judgment of two lower Courts unless there are substantial errors in law or procedure leading to miscarriage of justice.– Per UWANI MUSA ABBA AJI, JSC (citing Oguanuhu & Ors v. Chiegboka)

 

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RES JUDICATA – PUBLIC POLICY FOUNDATION

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In view of the oneness of the subject matter in the two actions, with the existence of the other conditions acceptable to the feuding parties, the appellant’s latter action, Suit No. PLD/P28CV/2013, was mired in the quicksand of res judicata which is erected on the maxim: Interest rei publicae ut sit ifinis litium – It is in the public interest that there should be an end to litigation. – Per OBANDE FESTUS OGBUINYA, JSC (citing Asaboro v. Pan Ocean Oil Corp. (Nig.) Ltd.)

 

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IDENTIFICATION OF SUBJECT MATTER – RELIANCE ON PLEADINGS

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From the printed records of appeal before this Court vis-a-vis the reproduced paragraphs above, it is apparent that the description of the land in Suit No. PLD/P28CV/2013 as ‘the Jos-Mangu Pankshin tarred road’ on one side and ‘River stream’ on the other, are the same features prominent and vividly captured in Suit No. CV/323/1983. Hence, the pre-condition that the res or the subject matter of the litigation in the two cases is the same, was present in this case. – Per CHIDI NWAOMA UWA, JSC

 

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DETERMINATION OF SUBJECT MATTER IDENTITY – USE OF PLEADINGS

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A clinical audit of the critical averments in paragraphs 5, 6 and 7 of the appellant’s pleading, which were concretised by evidence, the res under disputation in the two suits aforementioned is one and same. – Per OBANDE FESTUS OGBUINYA, JSC

 

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CASES CITED

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STATUTES REFERRED TO

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1. Evidence Act 2011

2. High Court Rules

3. Court of Appeal Rules

 

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OTHER CITATIONS

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