Legalpedia Citation: (2023-08) Legalpedia 02661 (CA)

In the Court of Appeal

Holden at Yola

Fri Aug 25, 2023

Suit Number: CA/YL/125/2022

CORAM

MOORE ASEIMO ABRAHAM ADUMEIN JUSTICE OF THE COURT OF APPEAL

HABEEB ADEWALE OLUMUYIWA ABIRU JUSTICE OF THE COURT OF APPEAL

PETER OYINKENIMIEMI AFFEN JUSTICE OF THE COURT OF APPEAL

PARTIES

1. IDRISA SHEHU ISA
2. ABDULKARIM SHEHU ISA
3. USMAN NANGERE
4. ALHAJI LODDO SALE
5. ALARAMA BAWURO
6. SALE MOHAMMED APPELANT(S)

 

APPELLANTS

HAMZA ALHAJI MUHAMMADU RESPONDENT(S)

 

RESPONDENTS

AREA(S) OF LAW

APPEAL, EVIDENCE, LAND LAW, PRACTICE AND PROCEDURE

 

SUMMARY OF FACTS

The Respondent qua plaintiff’s claim [through four witnesses, including the Respondent (PW3) and his deceased father/original 1st plaintiff, Alhaji Muhammadu Bello Bagalere (PW4)] is that his grandfather [Alhaji Bello Bagaleri] settled at a place called Jarandi along Mamokan-Dirdeu Road where his deceased father/original 1st Plaintiff was born and brought up; that upon the death of his grandfather, the family migrated to Mamokan Village but continued to maintain and cultivate the old settlement as well as using it as cattle ranch since Jarandi and Mamokan are not far apart; that the disputed land was handed over to him by his deceased father during his lifetime when he was no longer physically fit to carry out any work; and that the said land is an inheritance from his grandparents/parents. 

The Respondent maintained that his uncle [Bobbo Bello] sued one Modibbo Bappa over the disputed land at Mbulo Area Court, which suit was retried at Grade 1 Area Court Ganye and judgment was entered in favour of his family as shown in “Exhibit A”, which judgment was affirmed on 27/1/92 by the Upper Area Court Ganye as shown in “Exhibit B”, and no further appeal was lodged; and that the old settlement at Jarandi is part of the large expanse of land in dispute.

The Appellants (qua defendants/counterclaimants) claim that the disputed land was a gift/grant by the Late Gangwari of Ganye, Alh. Sanda Adamu to Shehu Isa (1st and 2nd Appellant’s father) who migrated with his family from Dabchi in Burasari of Yobe State since 1964 and settled at Dirdiu Village in Ganye Local Government Area for 14 years before relocating to the present Mamokan village; and that Shehu Isa saw a vast forest close to Mamokan village along Mamokan-Dirdiu Road (which had in it an old, isolated and abandoned settlement measuring about One & Half Football field) and requested the Village Head of Mamokan [Mallam Ali Sokoto] for Farmland where his family could cultivate and rear cattle, whereupon the village head took him to Alhaji the District Head of Mbulo [Sanda Faren], who accompanied them to see the Gangwari Ganye [Late Alhaji Adamu Sanda] in respect of Shehu Isa’s request for farmland.

 

They maintained that at the direction of the Gangwari Ganye, the District Head of Mbulo gave the disputed land (which was a vast forest) to Shehu Isa in 1978 and they cultivated and reared cattle thereon, including allocating of portions to others, without any disturbance for 11 years from 1978 – 1989 until the Respondent’s uncle [Bobbo Bello] laid rival claim of ownership by planting trees around the land, whereupon the matter was reported to the Gangwari Ganye who constituted a Committee that confirmed the ownership of Shehu Isa and his family as shown in their Report (Exhibit D1), but Respondent’s uncle instituted Suit No. CVF1/118/2003 (between the Respondent’s Jarandawa Family and the Appellants’ Shehu Isa Family) over the disputed land at the Upper Area Court Ganye, which declared title in favour of the Appellants’ family, and no appeal has been lodged against the said judgment; and that Jada Local Government Council issued a Certificate of Occupancy dated 24/11/16 covering the disputed land in favour of Shehu Isa.

HELD

Appeal allowed

ISSUES

• Whether the amended writ of summons and statement of claim upon which the lower Court relied in entering the judgment appealed against are valid/competent such that the Court’s jurisdiction to adjudicate was not impaired?
• Whether on the state of pleadings and evidence, the land claimed by the Respondent was properly identified and proved to entitle him to judgment as per the reliefs sought?
• Whether the lower Court rightly declared title in favour of the Respondent on the basis of first settlement/inheritance as against the Appellants’ claim of title by gift?
• Whether the lower Court was right when it held that the Findings and Recommendations (decision) of the Ganye Traditional Council Land Committee (Exhibit D1) did not constitute a binding and enforceable customary arbitration between the families of the Appellants and Respondent over the entire land at Jarandi, including the land in dispute?
• Whether the lower Court was right in holding that in light of the 1992 judgment of the same Upper Area Court Ganye in Suit No. CV/APP/30/91 (Exhibit B), the 2003 judgment of the Upper Area Court Ganye in Suit No. CVFI/118/2003: Mallam Barkindo & 2 Ors v. Mallam Abdulkarim & 6 Ors (Exhibit S1) constitutes an abuse of Court process and did not operate as res judicata against Suit No. ADSY/125/2017: Hamza Alh. Muhammadu v. Idrisa Shehu Isa & 5 Ors from which the instant appeal stems?
• Whether the Appellants’ counterclaim was rightly dismissed by the lower Court?

 

RATIONES DECIDENDI

AMENDMENT – EFFECT OF AN AMENDMENT

It is well settled that an amendment, whenever granted by the Court, relates back to the date of the original process amended, and what stood before the amendment is no longer material before the Court and ceases to define the issues to be tried. See ROTIMI v MCGREGOR (1974) 11 SC 133 at 152, OSITA NWOSU v IMO STATE ENVIRONMENTAL SANITATION AUTHORITY [1990] 2 NWLR (PT. 135) 688, VULCAN GASES LTD v GESELLSCHAFT [2001] 9 NWLR (PT. 719) 610 and TSOKWA OIL MARKETING CO v BANK OF THE NORTH LIMITED (2002) 1 NSCQR 738 at 753. – Per P. O. Affen, JCA

INSPECTION – CONDUCT OF COURTS IN INSPECTION OF PROPERTY

1. 127(2) of the Evidence Act, 2011 which provides that where inspection of property is required to be held at a place outside the Courtroom, the Court shall either be adjourned to the locus and the proceeding shall continue thereat until the Court further adjourns back to Court, or attend the place and make the inspection only and evidence of what transpired thereat would be given in Court afterwards in the presence of the defendant.  – Per P. O. Affen, JCA

 

INSPECTION – STATUS OF EVIDENCE GIVEN AFTER INSPECTION OF LAND OR PROPERTY

The point has already been made that S. 127(2) of the Evidence Act, 2011 gives a trial Court the option to either adjourn to any place outside the Courtroom where inspection of property is required and continue its proceedings thereat, or attend and inspect the subject matter only and subsequently hear evidence on what transpired thereat in Court insofar as this is done in the presence of the defendant. What this implies is that where evidence had closed before the Court embarks on a visit to the locus in quo on the application of one or both parties or suo motu and subsequently reconvenes in Court for the hearing of what transpired thereat (as in the case on appeal), the trial is effectively reopened and any testimonial evidence given at such reconvened hearing cannot be said to be evidence given after the close of trial.

Fundamentally, evidence given at such reconvened hearing need not necessarily be contained in written statements on oath already adopted by witnesses insofar as neither party is setting up a different case from the one pleaded. The focus is on what the parties (and the Court) observed during the inspection of the locus in quo, which inspection became imperative in the first place only because there were grey areas in the evidence led as to the identity of the land in dispute that needed to be cleared up by the said visit. See SEISMOGRAPH SERVICES v AKPOROOVO (1978) 9 NSCC 308 at 316 and ARUWAJU v ASHARA (2014) LPELR-22735(CA). – Per P. O. Affen, JCA

RES JUDICATA – THE MEANING AND RATIONALE BEHIND THE DOCTRINE OF RES JUDICATA

The doctrine of res judicata (or estoppel per rem judicatum) is a rule of evidence founded on considerations of justice and good sense whereby a party is precluded from disputing in any subsequent proceedings matters which had previously been adjudicated upon by a Court of competent jurisdiction between him and his opponent. See ODUKA v KASUNMU (1968) NMLR 28 and FADIORA v GBADEBO (1978) 3 SC 219 at 228 – 231. The rationale behind the doctrine, which was decided in 1843 in the case of HENDERSON v HENDERSON (1843) 67 ER 313 at 319 and first adopted in this country in the case of  FABUNMI v DELEGAN (1965) NMLR 369 at 273 [see DZUNGWE v GBISHE [1985] 2 NWLR (PT. 8) 528 at 539 (per Aniagolu, JSC)], is that where a Court of competent jurisdiction has determined an issue and entered judgment thereon, neither party may re-litigate that issue by formulating a fresh action on what has already been decided. See MADUKOLU v NKEMDILIM (1962) 1 All NLR 581 at 588. This doctrine of considerable antiquity – which is rooted in public policy as expressed in the twin Latin maxims of interest republicae ut sit finis litium (it is for the common good that there should be an end to litigation) and nemo debet bis vexari pro una eadem causa (no one shall be twice vexed for one and the same cause) – is aptly captured in Ss. 173 of the Evidence Act 2011. Res judicata implicates a question of jurisdiction, which should be considered first before proceeding, where need be, to determine the merits of the case. See AGBOGUNLERI v DEPO [2008] All FWLR 240 at 270 (per Onnoghen JSC, as he then was).

The doctrine applies not only against the parties but also against the jurisdiction of the Court itself in the sense that a party is estopped per rem judicatum from bringing a matter already decided before the Court, and doing so ousts the jurisdiction of the Court: ATTORNEY-GENERAL, NASARAWA v ATTORNEY-GENERAL, PLATEAU (2012) LPELR-9730(SC), LAMIDI LADIMEJI & ANOR v SUARA SALAMI & ORS (1998) 5 NWLR (PT. 548) 1 SC and SYLVA V INEC & ORS (2015) LPELR-24447(SC).  – Per P. O. Affen, JCA

RES JUDICATA – THE MANNER OR STAGE OF RAISING RES JUDICATA IN A PROCEEDING

Being a jurisdictional issue, there is no hard and fast rule or specification as to the manner or stage of the proceedings at which res judicata must invariably be raised nor is the Court fussy or finicky in this regard. It seems that in a Court of trial, depending on the peculiar facts and circumstances of the case, a plea of res judicata may be raised by way of a preliminary objection or upon the completion of pleadings: ONYEABUCHI v INEC [2002] 8 NWLR (PT. 769) 417. – Per P. O. Affen, JCA

ESTOPPEL PER REM JUDICATUM – CONDITIONS FOR ESTOPPEL PER REM JUDICATUM TO APPLY – CONDUCT OF COURTS WHEN THE CONDITIONS FOR ESTOPPEL PER REM JUDICATUM ARE ESTABLISHED

A conspectus of decided cases reveals that the following preconditions must be shown to exist in order for estoppel per rem judicatum to apply: (i) the two suits must be between the same parties or their privies: ODUA v NWANZE (1934) 2 WACA 98 and SHONEKAN v SMITH (1964) 1 All NLR 168. It is immaterial that the plaintiff in the one case is the defendant in the other:  GEORGE ONYEABUCHI v INEC & 4 ORS [2002] 8 NWLR (PT. 769) 417; (ii) the subject matter in the two suits must be the same: CHIEKWE v OBIORA (1960) SCNLR 566; (iii) the decision conclusively determined the same cause or issue between the parties; and (iv) there must be a valid subsisting judgment: OGIAMIEN v OGIAMIEN (1967) 1 All NLR 191 and EKO v UGWUOMA (1940) 6 WACA 206]. It is immaterial in this regard that it is a consent judgment [see TALABI v ADESEYE (1972) ALL NLR 692, IN RE SOUTH AMERICAN AND MEXICAN COMPANY EX PARTE BANK OF ENGLAND [1895] 1 CH. 37 at 50 (per Herschel, L.C.), BABAJIDE v AKINTOYE (1966) 1 ALL NLR 254, THE HONDA PLACE LTD v GLOBE MOTORS LTD [2005] 14 NWLR (PT. 945) 273 and OSENI v DAWODU [1994] 4 NWLR (PT. 339) 390], or that the judgment was obtained by default [see ODU v JOHN HOLT & CO. LIMITED (1950) 19 NLR 17]. See generally: ATTORNEY-GENERAL, NASARAWA v ATTORNEYGENERAL, PLATEAU supra, AGBOGUNLERI v DEPO supra at 257, ODUTOLA v ODERINDE & ORS (2004) LPELR – 2258 (SC) 1 at 10, DAGACI OF DERE & ORS v DAGACI OF EBWA & ORS [2006] 7 NWLR 382 at 422 – 424, ARUBO v AIYELERU [1993] 3 NWLR (PT. 280) 126 at 142 & 145,  OMOKHAFE v ESEKHOME [1993] 8 NWLR (PT. 309) 58 at 68 & 73, DZUNGWE v GBISHE supra at 538, JIMOH v ALESHINLOYE II & ORS [2014] 15 NWLR (PT. 1430) 277 and OGBOLOSINGHA & ANOR v B.S.I.E.C. (2015) LPELR – 24353(SC) 1 at 27 – 28. Where the above preconditions exist, the Court has little or no discretion in the matter, for then it will be crystal clear that the judicial process has been abused as manifested by the re-litigation of already decided issues, and the course open to the Court is to set aside the judgment of the lower Court and dismiss the subsequent suit:FADIORA v GBADEBO (1978) II NSCC 121 at 126 – 127, ARUBO v AIYELERU supra at 146 and GEORGE ONYEABUCHI v INEC & 4 ORS supra. – Per P. O. Affen, JCA

ESTOPPEL AND RES JUDICATA – DISTINCTION BETWEEN ESTOPPEL AND RES JUDICATA

By its very nature, res judicata is usually invoked or deployed as a shield by a defendant and not as a sword by a claimant. But the unique feature in the case that generated the instant appeal is that both the Respondent (as plaintiff) and the Appellants (as defendants/counterclaimants) pleaded previous subsisting judgments of the Upper Area Court Ganye said to be between the same parties or their privies and in respect of the same subject matter. It has not been contended that the previous judgments were merely pleaded as estoppel simpliciter but not as res judicata. The distinction between the two lies in the fact that whereas estoppel simply shuts the mouth of a party by prohibiting him from proving anything which contradicts his previous acts or declarations to the prejudice of a party, who, relying upon them, has altered his position, the plea of res judicata ousts the jurisdiction of the Court by prohibiting it from enquiring into a matter already adjudicated upon. See ODADHE v OKUJENI [1973] 11 SC 343 at 353, BASSIL v HONGER 14 WACA 569 at 573 and YOYE v OLUBODE (1974) NSCC (Vol 9) 404 at 414.  – Per P. O. Affen, JCA

COURTS – CONDUCT OF COURTS IN DETERMINING WHETHER RES JUDICATA APPLIES

In determining whether the issues, subject matter and parties in two suits are the same, a Court is permitted to study the pleadings, proceedings and judgment in the previous suit. The Court may equally examine the rationale for the previous judgment to discern what was actually in issue in the previous proceedings. See ATTORNEY-GENERAL, NASARAWA v ATTORNEY-GENERAL, PLATEAU supra at 52 – 53. – Per P. O. Affen, JCA

RES JUDICATA – THE EFFECT OF EMBODYING A PLEA OF RES JUDICATA IN A STATEMENT OF CLAIM

It would seem that by pleading res judicata, the Respondent (as plaintiff) undermined his main claim, just as the Appellants (as counterclaimants and therefore plaintiffs in their own right) undermined their counterclaim. In YOYE v OLUBODE (1974) NSCC (Vol 9) 404 at 414, the Supreme Court (per Ibekwe, JSC) highlighted the absurdity of embodying a plea of res judicata in a statement of claim (or counterclaim) and likened a plaintiff (counterclaimant) who did that “to a man who, while praying fervently for long life, yet carries in his pocket, a time bomb, which on explosion, would end his life”. – Per P. O. Affen, JCA

WITNESS – WHEN A WITNESS IS NOT CROSS-EXAMINED

Failure to cross-examine a witness on an issue constitutes an unspoken acceptance of the truth of his evidence: NJIOKWUEMENI v OCHEI [2004] 15 NWLR (PT. 859) 196 at 226 – 227, NITEL LTD v IKPI [2007] 8 NWLR (PT. 1035) 109 and JAMES SIMON v STATE [2017] 8 NWLR (PT. 1566) 119. – Per P. O. Affen, JCA

COURTS – THE PREOCCUPATION OF AREA COURTS AND CUSTOMARY COURTS

It is hardly necessary to state that judicial proceedings before an area or customary Court are exempted from the strict rules of evidence and procedure. See S. 256(1)(d) of the Evidence Act 2011 and the cases of OGUNNAIKE v OJAYEMI [1987] 1 NWLR (PT 53) 760, LATUNDE v LAJINFIN [1989] 3 NWLR (PT 108) 177 at 186 and KUUSU v UDOM [1990] 1 NWLR (PT. 127) 421. The preoccupation of area Courts and Customary Courts is to dispense substantial justice between persons who are subject to their jurisdiction without being bogged down unduly by technical rules of evidence or practice and procedure. What holds sway in these Courts is the quest for substance rather than form: their decisions are always given greater latitude and broad interpretation unhindered by technical rules of pleadings and evidence in order to ascertain the subject matter of a case and the real issues in controversy between the contending parties. See S. 61 of the Area Court Law of Adamawa State, Order 11 Rule 2(3) of the Area Court (Civil Procedure) Rules and the cases of DYSNEY v OSSEI (1939) 5 WACA 177, FALEYE v DADA & ORS [2016] LPELR-40297(SC) 1 at 34 – 36, ONWUAMA v EZEOKOLI [2002] 5 NWLR (PT 760) 365, OLODO & ORS v JOSIAH & ORS [2010] 18 NWLR (PT 1225) 653 at 671 and IYAJI v EYIGEBE [1987] 3 NWLR (PT 61) 523 at 528. – Per P. O. Affen, JCA

COURTS – DUTY OF ALL COURTS LOWER THAN THE SUPREME COURT TO CONSIDER AND PRONOUNCE ON ALL ISSUES

Notwithstanding that I have already held that the subsisting judgment of the Upper Area Court Ganye in CVF1/118/03 dated 26/6/03 (Exhibit S1) operates as res judicata and the jurisdiction of the lower Court was ousted thereby, I should ordinarily consider and pronounce on these issues. Binding case law enjoins all Courts lower than the Supreme Court in the judicial hierarchy to pronounce on all issues properly placed before them for determination and not restrict themselves to one or more issues which in their opinion may dispose of the matter. SeeADAH v NYSC (2004) 7 SC (PT II) 139 at 143 – 144, DASUKI v FRN [2018] 10 NWLR (PT 1627) 320 at 344, OSAREREN v FRN (2018) NWLR (PT 1627) 221 at 234, BOT v JOS ELECTRICITY DISTR. PLC [2021] 15 NWLR (PT. 1798) 53 at 88, A-G, LAGOS v NATIONAL SPORTS LOTTERY LTD & ANOR (2023) LPELR-60359(SC) and IGBOKE v CHUKWU & ORS (2023) LPELR-60104(SC) 1 at 27 – 31. The obvious rationale, apart from the demands of fair hearing, is to obviate the risk of possibility that the only issue(s) decided could be faulted on appeal. See BRAWAL (NIG) LTD v F. I. ONWADIKE CO. LTD & ANOR (2000) LPELR-802(SC) 1 at 13 – 15 –per Uwaifo JSC. – Per P. O. Affen, JCA

CASES CITED

STATUTES REFERRED TO

• High Court of Adamawa State (Civil Procedure) Rules

• Evidence Act, 2011

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