Attah Idih V. Ben Uteno (2009)

LawGlobal-Hub Lead Judgment Report

OYEBISI . F. OMOLEYE, J.C.A.

This is an appeal against the judgment of the High Court of Kogi State coram Hussaini and Ajileye JJ, sitting at Anyigha in its appellate jurisdiction over the ruling of the Upper Area Court, Anyigba in the suit in which the Plaintiff (hereinafter referred to as the Respondent) had claims follows:-

“Claim of a piece of land called Oko-Ogo at Ukpotume and restraining the defendant/appellant from further trespassing on the said land.”

The Defendant (hereinafter referred to as the Appellant) before the commencement of hearing of the said suit, filed a motion on notice seeking the striking out of the Respondent’s suit on the ground that the Upper Area Court lacked the requisite jurisdiction to adjudicate upon it.

The Appellant is claiming that the said portion of land the subject-matter of the suit tiled by the Respondent at the Upper Area Court Anyigba, had been adjudicated upon by courts of competent jurisdiction between the same parties and or their privies. Reference is made to the said suits, most especially suit Nos. 54/63 before the Kabba Provincial Court, Exh. A in pages 5 to 13, Exh. F, CV.9/90 before the Upper Area Court, Idah, in pages 52 to 58 and an alleged case No. CV. 242/93 before the Anyigba Upper Area Court. That Oko-Ogo land being claimed by the Respondent is the same land that was adjudicated upon in Exh. F at the Jdah Upper Area Court wherein the Court awarded the said land to the Appellant. The said judgment not having been appealed is validly subsisting. That the land in dispute having been previously adjudicated upon between the parties and or their respective privies, the parties herein are estopped from re-litigating it by reason of the operation of the legal doctrine of “estoppel per rem judicatam”.

Contrariwise, it is the Respondent’s case that the subject-matter of the instant case and that of the earlier cases relied upon by the Appellant are not the same. That Oka-Ogo has neither at any time been adjudicated upon nor awarded to the Appellant.

In support of the motion on notice, the Appellant filed an affidavit and attached thereto six exhibits marked A – F. The Respondent in opposing the motion filed a counter affidavit. The Upper Area Court after considering the affidavit evidence of the parties and the addresses of the counsel for the respective parties gave its ruling in which the motion of the Appellant was dismissed.

The Appellant not pleased with the ruling of the Upper Area Court filed an appeal to the High Court, Anyigba “vide” his notice of appeal contained in pages 74 to 76 of the record of appeal. After hearing the submissions of learned counsel for and against the appeal, the Anyigba High Court (hereinafter referred lo as the lower Court) on 16.10.2006 in its considered judgment dismissed same and held “inter alia” in lines 3 to 10 at page 88, lines 28 to 34 at page 89, lines 20 to 22, 33 to 38 at page 90 of the record of appeal, as follows:-

“— there is no specification about the stage in the proceedings at which the plea of res judicata can or must be raised i.e. whether as a preliminary objection or at the completion of evidence. In our humble view, therefore, everything depends on the facts and circumstances of each case. Each case, must, as of necessity, be treated on its own merit …..

On the totality of/he foregoing, we must say again, that everything depends on the stage at which res judicata was being raised, the circumstances and the facts of each case Evidence may be fully given to determine res judicata. The case may also be decided by way of preliminary objection by motion on notice…………..

While it is not totally correct to say, as the lower Court did, that evidence must be taken in the area Court to determine plea of res judicata……………

It is in the light of the above that we affirm the ruling of the Upper Area Court Anyigba in this case and direct that parties in this case should go back to the lower court to commence the hearing of the case. The court shall hear and determine the case to conclusion. Appeal dismissed. ”

The said judgment of the lower Court did not go down well with the Appellant; hence he filed this appeal to this Court against it. The notice of appeal in this respect dated 6/2/2007 contained three grounds of appeal. These are contained in pages 92 to 94 of the record of appeal. The Appellant is seeking the order of this Court setting aside the said judgment of the lower Court on the ground that the Respondent is “estopped” from commencing his said action and that the Upper Area Court has no jurisdiction to adjudicate thereupon, For ease of reference, the three grounds of appeal with their particulars are as follows:-

GROUNDS OF APPEAL

1. The judgment is against the weight of evidence.
2. The learned appellate Judges of Kogi Slate High Court, sitting in Anyigba erred in law when they held in effect that the principle of estoppel per rem judicatam does apply in this case and proceeded to dismiss the Appeal of the defendant/appellant, and then ordered that the Upper Area Court Anyigha, should proceed to hear the case of the respondent to determine if estoppel per rem judicatam applies in this case.

PARTICULARS OF ERROR

i. EXHIBITS A, B, C, D, E, and F, put together clearly showed that what the Upper Area Court Anyigba is being called upon to decide in suit No. CV. 63/04 has been subject of judicial pronouncements previously between the parties herein and or their privies.

ii, EXHIBITS A, B, C, D, E, and F are subsisting and have not been set aside.

iii. In EXHIBITS E and F in particular, courts of competent jurisdiction have conclusively found that the principle of estoppel per rem judicatam applies to this case, the subject matter being Oko-Ogo land.

iv. The issue, the subject matter and the parties or privies in EXHIBITS “A”- “F” are the same as in suit No, CV 63/04

3. The learned appellate .Judges of Kogi State High Court sitting in Anyigba erred in law when they did not properly or at all evaluate the evidence in EXHIBITS A, B, C, D, E and ‘F’ forming part of the record before them, and then proceeded in this grave error to dismiss the appeal of the appellant, and then ordered that the case of the Respondent proceed to trial in the Upper Area Court.

PARTICULARS OF ERROR

i. It was the duty of the High Court to have properly evaluated the evidence in EXHIBITS “A” – “F” before them,

ii, A careful and proper evaluation of Exhibits ‘A’ – ‘F’ was not done by their Lordships in the Court below before dismissing the Appeal of the Appellant.

iii. A careful perusal and reading of Exhibits E and F in particular, would have shown that estoppel per rem judicatam was held to apply to the cause of action in this case and these decisions are subsisting.

iv. The issue as to whether estoppel per rem judicatam applies to the cause of action in this case was conclusively dealt with in Exhibits E and ‘F’ before a court of competent jurisdiction.

v. That issue cannot be re-opened again as ordered by the court below.

From the above stated three grounds of appeal, the learned counsel for the Appellant, in the brief of argument filed for the Appellant on 7.6.2007, distilled a sale issue for the determination of this appeal. This sole issue states as follows:-

Having regard to Exhibits A – F. was the lower Court not in error to hold that “estoppel per rem judicatam” does not apply in this case?

In the Respondent’s brief of argument which was deemed properly filed on 3/12/2007, one single issue was also formulated for determination in this appeal. This single issue states thus:

Whether the lower Court was right to have held that evidence should be taken before the plea of “estoppel per rem judicatam” raised by the appellant can he determined?

On 18.3.2009 when this appeal was heard by this Court, the learned counsel for the Appellant, Mr. O.J. Onojah identified, adopted and relied on the Appellant’s brief of argument. He urged this Court to hold that there is no need to adduce oral evidence in order to determine whether the action of the Respondent is not incompetent by the operation of the doctrine of “estoppel per rem judicatam”. He also urged this Court to allow this appeal and set aside the ruling and judgment of the Anyigba Upper Area Court and the lower Court respectively.

On the other part, the learned counsel for the Respondent, Mr. Lawrence John identified, adopted and relied on the Respondent’s brief of argument. He submitted that evidence must be led to establish the issue of “res judicata”, He urged this Court to dismiss this appeal and affirm the decisions of the two lower courts accordingly.

I have given due consideration to the sole issue formulated for determination by the learned counsel for the two parties. I am of the view that the sole issue formulated by the Appellant’s learned counsel is more apt for the proper resolution of this appeal. I shall therefore adopt and take it along with that of the Respondent appropriately.

SOLE ISSUE

Having regard to Exhibits A – F, was the lower Court not in error to hold that “estopel per rem judicatam” does not apply in this case?

The learned counsel for the Appellant submitted that the law is trite that, for the doctrine of “estoppel per rem judicatam” to operate, it must be proved that:

(i) The parties or their privies, as the case may be, in an earlier suit are the same as in a later suit; (ii) The issue and subject-matter both in the earlier and later suits are the same;

(iii) The adjudication in the earlier suit was by a court of competent jurisdiction and

(iv) The decision reached in the earlier suit finally decided all the issues between the relevant and necessary parties.

On this legal principle, reliance was placed on the cases of:

1. Afolabi v. Gov., Osun State (2003) FWLR (Pt. 175) p.411 at p. 417;
2. Oshodi v. Eyifunmi (2000) FWLR (Pt.8) p. 1271;
3. Ito v. Ekpo (2000) FWLR (Pt. 6) p. 927 at p. 950 paras. D – F;
4. Ezeanya v. Okeke (1995) 4 SCNJ p. 60 at p. 77 and
5. Oyerogba & Ors. v. Olaopa & Ors. (1998) 12 SCNJ p.115.

According to the learned counsel for the Appellant, in the earlier action Suit No. CV. 9/90, Exh. F in pages 52 to 58 of the record of appeal, between the Appellant and one Ochani Oehai Emeje, the Respondent, is a privy of the latter. The subject-matter in respect thereof is the same as that between the Appellant and the Respondent in the suit leading to this appeal. The said subject-matter concerns the claim of the piece of land known as Oko-Ogo at Ukpotume village. The said earlier action was adjudicated upon by the Upper Area Court. In this regard reference was made to Exhibit A in pages 5 to 13 of the record of appeal. That it was before that Court that the action in respect of the subject-matter of this appeal was originally commenced. As a matter of fact, two other subsequent actions which were predicated on this subject-matter in contention were dismissed on the ground of incompetence by reason of the operation of the doctrine of “res judicata “. These are Exhibits E and F at pages 38 to 58 of the record of appeal. It was contended for the Appellant that, by reason of the affidavit evidence placed before the Anyigba Upper Area Court by the Appellant while prosecuting the motion filed by him in opposition to the suit of the Respondent, the Court was wrong in assuming jurisdiction to adjudicate upon the said suit of the Respondent. That the lower Court was also in error to hold that the resolution of the issue of “estoppel per rem judicatam” in the said suit requires circumspection, deliberation and proper consideration of evidence which must first be presented to it.

It was canvassed further for the Appellant that it is an established principle of law that, “issue estoppel” effectively precludes a party to an action or his agents or privies from disputing, as against the other party in any subsequent proceedings on issues which had been raised and appropriately resolved between the parties or their agents or privies. None of the parties will be entitled or allowed to re-litigate the issues again. The learned counsel for the Appellant submitted that, in Exhibits A – F, particularly Exhibits E and F, it was held that the Upper Area Court lacks jurisdiction to adjudicate upon the same subject-matter as in the instant case which had been previously litigated. The said decisions are still valid and subsisting judgments of courts of competent jurisdiction in actions between the parties herein and or their agents or privies and they will remain so until they are set aside on appeal.

Furthermore, the totality of the larger Ukpotume land, the learned counsel for the Appellant posited, has been adjudicated upon, hence, Oko-Ogo which is a smaller portion within Ukpotume land can not be litigated as is being sought by the Respondent. The Appellant’s learned counsel rested his position on the cases of:

(1) Ito v. Ekpe (2000) FWLR (Pt. 6) p.927 and

(2) Oshodi v. Eyifunmi supra.

In reply to the above arguments, the learned counsel for the Respondent submitted that there is nothing in Exhibits A – E to show that Oka-Ogo is the land in contention therein. It was also not decided in Exhibit F that Oka-Ogo is known or called by various other names. He reiterated that it is only through evidence that it can be proved that the issue and subject-matter of the earlier suits and the instant one can be proved and that the two lower Courts rightly held in this regard. For in his opinion, the proper way through which an Area Court which is not a superior court of record can know whether or not a cause of action has been previously determined is for the court to visit the land in dispute. That way, the evidence adduced before the court in the later case in terms of the features of the land can be compared with those of the land already determined by a competent court to see whether or not they are actually the same. Otherwise any decision taken by the court on the issue of “res judicata” as in the instant case will amount to a decision in haste. This position of the learned counsel for the Respondent was hinged on the unreported Supreme Court decision in the case of: Musa Iyaji v. Sule Eyigebc, Suit No. SC.232/1984 delivered on 10th July, 1987.

The learned counsel for the Respondent agreed that the correct position of the law on what must be proved before a plea of “res judicata” can he sustained is as stated in the cases of: (1) Afolabi v. Gov., OSun State (2) Oshodi v. Eyifunmi; (3) Ito v. Ekpe and (4) Ezeanya v. Okeke all supra, cited by the Appellant’s counsel. However, he contended that these authorities are not relevant to the instant case in which the subject-matter of the earlier suits is not the same as that of the instant case. What is more, according to him, the subject-matter as stated in the cause of action of the Respondent is not enough without oral evidence, to determine the full details of the said subject-matter. Hence, since the issue of “res judicata” raised by the Appellant at the Upper Area Court has failed having been dismissed, that Court properly assumed jurisdiction to adjudicate upon the said action of the Respondent.

It is crystal clear from the facts and circumstances of this matter as contained in the record of appeal and the cases of the parties as marshaled in the briefs of argument filed by their respective counsel, that, it is the issue of the competence and jurisdiction of Anyigba Upper Area Court to entertain the referred action filed before it by the Respondent that led to this appeal. This is based on the allegation that the same cause of action had been previously litigated by the same Court between the same set of parties and or their privies.

There is no doubt the issue of jurisdiction is very radical and crucial in the adjudication of any matter. This is so very trite and has been underscored in several decided authorities. It has been emphasized in this vein that courts of law being creatures of the Constitution and statutes must strictly adhere to the jurisdiction provided and circumscribed for them in the Constitution and the statutes which established them. Courts have in this wise been admonished to only expose but not to expand their jurisdictional horizon even while being jealous and zealous in doing this. Jurisdiction is therefore the cornerstone, the foundation for adjudication, it must be decided and determined as soon as it is raised and it may be raised at any stage of the proceedings, even on appeal at the Supreme Court. For where a court lacks jurisdiction, no matter how well a trial is conducted, the trial will amount to a nullity and a vain exercise. In other words, a court is only competent when the subject-matter of a case is within its jurisdiction and there is no ingredient of the case which prevents the court from exercising its jurisdiction thereon. Court’s competence therefore is established when a case comes before the court having been initiated by due process of law and upon the flilfilment of all the conditions precedent to the exercise of jurisdiction. See the cases of:

(1) Madukolu v. Nkemdilim (1962) 2 SCNLR p. 341;

(2) Obikoya v. Registrar of Companies (1975) 4 SC p. 31;

(3) Abana v. Obi (2004) 10 NWLR (Pt. 881) p. 319 and

(4) Chief Eligbe v. Chief Omokhafc (2004) 12 SCNJ p. 106.

The basic principle in a plea of “res judicata” is that, if a party brings an action against another for a particular cause of action, and judgment is given thereon, the party can not bring another action against the same party for the same cause of action. For, the position of the law is that, there must be an end to litigation. “Estoppel per rem judicatam” operates in the case of a final judgment or decision of a court or judicial tribunal of competent jurisdiction between the same parties or their privies. See the cases of:

(1) Odinigi v. Oyeleke (2001) 6 NWLR (Pt.708) p.12 at p. 27 and

(2) Obla v. Otagoyi (2007) 5 NWLR (Pt. 1027) p. 304. This doctrine applies whether the point involved in the earlier decision is one of fact or law or mixed fact and law.

The conditions precedent to a successful plea of “res judicata” and “issue estoppel” are as follows:-

(a) The identity of the parties or their privies must be the same in the earlier and later suits.

(b) The identity of the “res” that is, the subject-matter of the earlier and later suits must be the same.

(c) The issue and claim in the earlier and later suits must be the same.

See the cases of:

(1) Alashe v. Ilu (1964) 1 All NLR p. 390.

(2) Nkanu v. Onum (1977) 5 SC p. J3 at p. 18.

(3) Fadairo v. Gbadebo (1978) 3 SC p. 219 at p. 228.

(4) Adomba v. Odiese (1990) 1 NWLR (Pt. 125) p.165;

(5) Ezeanya v. Okeke (1995) 4 NWLR (Pt. 388) p. 142 at p. 171 and

(6) Adone v. Ikebudu (2001) 14 NWLR (Pt. 733) p. 385 at p.422.

The three preconditions must co-exist in order for the plea to be sustained. See the case of: Aro v. Fabolude (1983) 2 S.C. p. 75 where Aniagolu, J.S.C. had this to say:

“In a civil case, before this principle is applied, the “res” (the subject matter) in contention must be the same, the issues and parties the same in the new case as in the earlier proceedings. Where any of the three … is missing in the new case a plea of “res-judicata” will ordinarily fail – See: Odua v, Niranza (1934) 2 WA.CA, 98 at 100 – 102,”

The burden of proof is on the party who sets up the defence of “res judicata”. See the case of: Ademola v. Odiese supra at p. 184. A successful plea of “res judicata” ousts the jurisdiction of the court before which it is raised. Therefore, the plea is a shield rather than a sword. See the case of: Yoye v. Lawani Olubode & 2 Ors. (1974) 10 SC. p. 209.

Having stated the position of the law, this must and will now be tested with the facts and materials presented by the parties before the two lower courts so as to see the justification for their decisions.

I have perused the affidavit and counter affidavit of the respective parties contained in pages 2 to 4 and pages 59 to 60 of the record of appeal. It is obvious therefrom that, the parties herein are at logger heads regarding only the sameness of the subject-matter of the action filed by the Respondent at the Anyigba Upper Area Court. I consider it expedient for the purpose of easy reference to reproduce the relevant paragraphs of the said affidavits of the parties. In this respect, paragraphs 4 to 7 of the Appellant’s affidavit in support of his motion state thus:-

“4. I know as a fact that from information received as aforesaid and documents of this case at my disposal:

a. The subject mailer of this present suit has been adjudicated upon by courts of competent jurisdiction, between the same parties and or their privies and on the same land, the subject matter in the case.

b. Suit No, 54/63 in the provincial court, Lokoja was between the predecessor in title of the parties in this current suit and is annexed herewith as Exhibit ‘A ‘.

c. Suit No. 149/75 of 1.4.75 In the Divisional Court, Idah between the applicant and one of the privies of the Respondent herein is annexed as Exhibit ‘B’.

d. Suit No 152/78 in the Grade II Area Court Ugwolawo is annexed as Exhibit ‘C’.

e, Suit No, ID/16A/1978, appeal against Suit No. 152/78 in the High Court of Justice of Benue State, holden at Idah, is annexed as Exhibit ‘D’.

f. Suit No. CV91/80 in this Hon. Court is annexed as Exhibit ‘E’,

g. Suit No. CV.9/90 before the Upper Area Court Idah is annexed as Exhibit ‘F’.

5. That I am informed by the defendant/applicant and J verily believe him that, Sani Emeje in Exhibit ‘B’- ‘F’ attached to the affidavit is a relation and one of the privies of the plaintiff in this suit.
6. 1 know as a fact that Upper Area Court Idah had on 13/12/92, vide Exhibit ‘F’ adjudicated and found as where Oko Ogo was adjudicated upon and awarded to the Applicant.

e. That the judgments in Exhibits A – F are over lands different from the one in dispute.

f. That the land in dispute is there for the court to visit and ascertained whether or not part of the one is already disputed upon.

g. That individual member of the respondent family have their land which they farm upon.”

From the above averments in the parties’ affidavits, it is obvious that there is a disagreement as to the sameness of the subject-matter of the Respondent’s cause of action. If the position taken by the Appellant that the entirety of Ukpotume land had been previously litigated before the Upper Area Court, Kogi State and there is a subsisting judgment of that Court in respect thereof that would properly constitute the defence of the plea of “res judicata” raised by the Appellant against the action filed by the Respondent in suit No. CV.63/04 before the Court. It is clear that the question posed for determination before the Anyigba Upper Area Court in the said case is that of the “res”, that is, Oko-Ogo in Ukpotume.

There is no doubt that the affidavits of the parties are contradictory regarding the crucial point of the identity of the ‘res” in dispute in the substantive suit of the Respondent; this is the basis of the motion of the Appellant. The poser therefore is: can the plea of “res judicata” be resolved at that stage of the proceedings on the affidavit evidence of the parties? Basically, there is no law against having the plea of “estoppel per rem judicatam” raised, considered and determined “in limine”, that is, preliminarily. In the case of: Onyeahuchi v. INEC (2002) 8 NWLR (PI. 769) p. 417, the Supreme Court upheld a plea of “res judicata” which was raised by way of a preliminary objection. In that case, the earlier judgment relied upon for the defence was merely annexed as an exhibit to the notice of preliminary objection. The law is also well established that ordinarily, where the depositions in an affidavit filed in support of an application are sufficiently challenged by a counter affidavit filed by the opposing party, the conflicting affidavits can not be the basis of exercising properly the discretion of the court without taking oral evidence from the parties to resolve the conflicting affidavit evidence. See the cases of:

(1) Akinsete v. Akindutire (1966) 1 S.C.N.L.R. p. 389;

(2) Fashanu v. Adekoya (1974) 1 All N.L.R. (Pt. 1) p. 35;

(3) Falobi v. Falobi (1976) 9-10 S.C p. 1 and

(4) Gen. & Aviation Serv. Ltd. v. Thahal (2004) 10 NWLR (Pt. 880) p. 50.

In the case of Falobi v. Falobi supra, in line 23 at page 14 to lines 1 – 6 at page 15, Fatayi-Williams, JSC (of blessed memory) had this to say:

“We have pointed out on numerous occasions that when a court is faced with affidavits which are irreconcilable in conflict, the judge hearing the case, in order to resolve the conflict properly, should first hear oral evidence from the deponents or such other witnesses as the parties may be advised to call.”

The same thing is applicable to the issue of “res judicata”. The issue can not be disposed of by all affidavit evidence where there are irreconcilable conflicts therein. A party that relies on a plea of “re judicata” must in such circumstance lead evidence to show that all the three conditions precedent to the doctrine has been fulfilled. That is, the parties and the subject-matter in the earlier and later cases are the same and also the earlier judgment, a final judgment delivered by a court of competent jurisdiction What is more, the said earlier judgment will have to be successfully tendered in evidence, and obviously at trial. See the cases of:

(I) Effiom v. Ironbar (2000) 3 NWLR (Pt. 650) p. 545 and

(2) Obla v. Otagoyi (2007) 5 NWLR (Pt. 1027) p.304.

Also in the case of: Abe v. Adeniyi (2007) 4 NWLR (Pt. 1023) p. 191 at p. 219, paras. G -H, this Court held that in determining the real identity of a disputed portion of land for the purpose of “res judicata”, it will be premature and wrong of a trial court to rely on mere affidavit evidence. It was further held in the case that, in land matters, the area or portion of the land involved in both the earlier and later cases must be exactly the same in size and location for the pica of “res judicata” to be sustained in the later case.

It is pertinent to state that the real essence of the motion of the Appellant before the Anyigba Upper Area Court was the determination of the competence of that Court to adjudicate upon the Respondent’s suit therein. The said Court after due consideration of the materials placed before it found “inter alia” in lines 7 to 26 at page 69 of the record of appeal, as follows:-

“The question is which farmland was declared for the plaintiff ……? we are unable to agree with the submission of learned counsel to the applicant that …. Oko – Ogo land which is within a larger area called Ukpotume land has been a subject of judicial determination between the parties therein and their privies in title, Rather, on the contrary, we agree with the submission of learned counsel to the respondent that……the cause of action is on Ukpolo Arotal land and at page 6, only Oji Oko Arotal land Okochegbe were mentioned and nothing to show the link between these land mentioned and Oko-Ogo land presently in dispute. The legal effect of this submission which we understand is that the cause of action in Exhibit ‘A” and “C” are not the same with the cause of action in the case before us and we so hold. ”

I have examined the exhibits attached to the supporting affidavit of the Appellant’s motion filed at the Anyigba Upper Area Court. The portion of land in contention in Exhibit A is known as Ukpolo Arotah land. See page 5 of the record of appeal. In Exhibit C, the subject-matter is somewhat faceless as it was just referred to as “a farmland sited at Ukpotume”. Sec page 29 of the record of appeal. In Exhibit F which the Appellant relied on the most, although the “res” in that suit is stated to be Oko-Ogo at Okputume, the Idah Upper Area Court declined jurisdiction to adjudicate upon the suit, see page 52 of the record of appeal. It can not therefore he rightly concluded that the claim was determined one way or the other between the parties therein. It can safely be said and i hold that none of the alleged suits relied upon by the Appellant is helpful to his case. The claim by the Appellant that Oko-Ogo and indeed the whole of Okpotume land had been apportioned to the parties herein is not borne out of the printed record of appeal.

Further more, the alleged Suit No. CV. 242/93 also relied upon by the Appellant is not contained in the record of appeal. I can not but agree with the submission of the learned counsel for the Respondent that there is no evidence in the printed record of appeal to buttress the Appellant’s claim that Oko-Ogo, the subject-matter of the suit leading to this appeal has been previously litigated by the parties herein or their privies or agents. No final decision or judgment had been given in respect thereof by cither the Anyigba Upper Area Court or any other competent court of coordinate jurisdiction.

From my foregoing deductions, I hold that the defence or plea of “estoppel per rem judicatam-” can not avail the Appellant in the given circumstances of this case.

The above reproduced findings of the Anyigba Upper Area Court In my view were correctly, justifiably made sequel to and borne out of a proper evaluation of the affidavit evidence placed before it by the parties. The Court’s drawn inferences therefrom were proper, and in tune with the applicable law in the given circumstances of this matter. I am at one with the submissions of the learned Counsel for the Respondent and I hold that the Anyigba Upper Area Court had, indeed and rightly too considered and determined the plea of “res judicata” against the Appellant. Therefore, the Court’s decision to assume jurisdiction to adjudicate upon the substantive action of the Respondent was properly reached in the given circumstances. Consequently, the affirmation of the said decision by the lower Court especially the portion earlier on in this judgment reproduced “in extenso” by me is faultless and without equivocation. It is in this light that I answer in the affirmative the question posed by me earlier on in this judgment that, the plea of “res judicata” against the action of the Respondent berore the Anyigba Upper Area Court was appropriately raised, considered and determined. In effect, I cannot see any legal justification for me to upset the said two decisions.

The law is settled that, where in a decision of a trial or lower court there was failure by the court to properly evaluate the evidence adduced before it by the parties in an action, thereby leading to wrong conclusions and improper findings; or if the decision was founded upon wrong principles of law, such a decision is tagged as perverse. In such circumstance, an appellate court will not hesitate to interfere with and set aside the perverse decision. See the cases of:

(1) Broadline Enterprises Ltd v. Monetary Maritime & Anor. (1993) 10 SCNJ p.1 at p.5;

(2) Uka v. Irolo (2002) 7 SCNJ p. 137 and

(3) Layinka Y. Makindc & 5 Ors. (2002) 10 NWLR (Pt. 775) p. 358 at pgs. 370 – 375.

Consequent upon my above line of reasoning, I am of the firm view that the said decisions of the Anyigha Upper Area Court and the lower Court is not perverse and I hold so.

Having founded as stated above, I am left with no other choice than to affirm the two decisions of both the Anyigba Upper Area Court and the lower Court in this matter. Indeed I am legally bound to do this. Accordingly, I hold that the said sole issue distilled from the three grounds of appeal being without substance is resolved against the Appellant and in favour of the Respondent.

Before I put paid to this opinion, I wish for the umpteenth time to remind counsel of the need for them to desist from pursuing unnecessary and trivial preliminary objections and interlocutory appeals which they sometimes pursue up to the Supreme Court rather than ‘working hard at ensuring that the substantive matters are expeditiously determined. The unreasonable delay caused as a result of this trend is certainly not in aid of good administration of justice. All learned counsel of the noble profession of law have been sacredly initiated to minister faithfully and continuously at the sectly temple of justice. It is now the vogue for some learned counsel to fashion out the timeiest of objections which they robe with the cloak of “issue of jurisdiction.” This is unwholesome and it amounts to much more than an attempt to impede the speed of justice; invariably, counsel end up unwittingly meeting out grave injustice and causing untold hardship to their own clients. Happily, the Supreme Court has laid it down that an objection to jurisdiction can in fact be taken together with the substantive action in some cases such as the instant one. I refer in this regard to the cases of:

(1) Dapialong v Dariye (2007) 8 NWLR (Pt. 1036) p.332;

(2) Senate President v. Nzeribe (2004) 9 NWLR (Pt 878) p. 251 and

(3) Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) p. 423.

All the learned counsel especially the Appellant’s in the instant case are enjoined with respect, to please be well guided till the future.

In conclusion, I hold that this appeal is lacking in merit. It is accordingly dismissed. The action of the Respondent at the Anyigba Upper Area Court is competent and the Court possesses the requisite jurisdiction to adjudicate upon it. The decision of both the Anyigba Upper Area Court and the lower Court are hereby affirmed. The said suit No. CV. 63/04 is therefore remitted to the Anyigba Upper Area Court for expeditious trial on the merit.

The costs of this appeal estimated al the sum of Fifty Thousand Naira is awarded against the Appellant and in favour of the Respondent.

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Other Citations: (2009)LCN/3308(CA)