MOHAMMED USMAN LUBO V. MR. K. K. LUBO

Legalpedia Citation: (2023-07) Legalpedia 40395 (CA)

In the Court of Appeal

GOMBE JUDICIAL DIVISION

Thu Jul 6, 2023

Suit Number: CA/G/2/2022

CORAM

A. B. GUMEL JCA
DANJUMA JCA
I. BANJOKO JCA

PARTIES

MOHAMMED USMAN LUBO

APPELLANTS

K. K. LUBO

RESPONDENTS

AREA(S) OF LAW

APPEAL, EVIDENCE, LAND, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellant as plaintiff before the trial court commenced this action against the Respondent, as Defendant, for trespass damages and perpetual injunction over a portion of a large expanse of a farmland situated at Shipra, Lubo Town of Yamaltu L.G.A of Gombe State which he claimed was cleared by his father since 1954, two years after his father ascended the throne of the District Head of Lubo in 1952 and that he has been in quiet and peaceful possession of same, exercising acts of ownership such as farming and borrowing to others.

The Respondent claimed that Plaintiff father had no title to pass on to the Plaintiff.

The two parties have been in Court to dispute on the same subject matter and the Court of Appeal Jos division affirmed the decision of the High Court Gombe state by ruling in favour of the Appellant against the Respondent in this suit. This judgment has not been appealed.

The lower Court (High Court of Gombe state) in this matter attempted distinguishing the previous suit from this one by claiming that the initial suit did not settle title to land but merely addressed possession and trespass. The Court proceeded to judge in favour of the Respondent. Aggrieved by the decision, the Appellant filed the instant appeal.

HELD

Appeal allowed

ISSUES

Whether the trial court was right in holding that title to the land in dispute was not in issue in Exhibit 1 (1-16) and Exhibit 2 (1-26) and that same does not declare title on the Appellant?
Whether in view of Exhibit 1 (1-16) and Exhibit 2 (1-26), the lower court was right in holding that Exhibit 5 (A) and (B) is legally alive and has transferred title to the respondent?
Whether or not, the lower court was right when it found that Exhibit 1 (1-16) and Exhibit 2 (1-26) cannot operate as estoppel against the Respondent on the issue of title to the land in dispute?
Whether the lower court was right when it relied on Exhibit 3 (1-46) and Exhibits 6 and 7 to hold that the defence of res judicata avails the respondent and accordingly declared the present action as an abuse of court process?
Whether or not, the lower court was right when it found that the appellant admitted that Exhibit 1 and 2 was an action in trespass and not title?
Whether from the totality of the evidence properly placed before the court the judgment of the lower court is not against the weight of evidence?

RATIONES DECIDENDI

EVIDENCE – WHETHER ORAL EVIDENCE CAN BE USED TO VARY A WRITTEN DOCUMENT

In the case of MBOGU V. SHADRACK (2007) LPELR-8368 (CA), it was held thus:

“I agree with the appellant that by virtue of Section 132 (1) of the Evidence Act oral evidence is not admissible to vary, contradict, alter or add to a written document…”

See also the case of IKELI & ANOR V. AGBER (2014) LPELR-22653 (CA). – Per Mohammed Danjuma, JCA

RES JUDICATA – THE ESSENCE AND OPERATION OF RES JUDICATA

For an action to operate as res judicata, the party raising it must show that the parties, issues and the subject matter were the same in the previous action as those in the present action in which the plea is raised.

The doctrine of res judicata is a fundamental doctrine of all courts that there must be an end to litigation. The principle behind this rule is that where a competent court has determined an issue and entered judgment thereon, neither party may relitigate that issue by formulating a fresh action on what has already been decided. See the case of ALAO V. AKANO (1988) LPELR-410 (SC).

The Supreme Court, in the case of ABUBAKAR BELLO VS. BEBEJI OIL NIG. LTD (2007) 29 PT. 2 NSCQR R. 18, held that for a plea of res judicata to succeed;

“It must be shown that the parties, issues and subject matter were the same in the previous action as those in defence of res judicata cannot succeed, unless these three ingredients are present or proved or established”. – Per Mohammed Danjuma, JCA