Akpan Sunday Udo & Anor V. Monday Isaiah Akpan & Anor (2009)

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JAFARU MIKA’ILU, J.C.A.

In this matter the respondents as plaintiffs sued the appellants at the District Court of Ukpam Okon in Ikot Abasi for a declaration of customary right of occupancy over one parcel of land known and called “Ekpene Essien” situate at Afan Idim Ndon in Ikot Udo Mban village of Okon town in suit No 60/85. The majority decision was in favour of the defendants against the plaintiffs. The plaintiffs appealed to the Magistrate’s Court Ikot Abasi which appeal was struck-out. On appeal to the High Court the matter was sent back to the Magistrate’s Court again. The Magistrate’s Court set aside the majority decision of the District Court and affirmed the minority decision in favour of the plaintiffs. The same plaintiffs went to High Court, Ikot Abasi and sued the same set of defendants for a declaration for a Customary right of occupancy for the same parcel of land – “Ekpene Essien” situate at Atan Idim Ndon in Ikot Udo Mbon in Okon town in suit No HAB/7/93. The High Court declined jurisdiction following the decision in ONYENIRAN VS. EGBETOLA case and transferred the case to the District Court which began hearing the matter whereas the defendants raised a plea of res judicata as the court had heard and decided the said case involving the same parties, the same subject matter and the same issue in suit No. 60/85. The plea was ignored by the Court. The defendants ceased further appearance but the said court went ahead and decided the case in suit 39/98 in favour of the plaintiffs/respondents. The defendants appealed against the subsequent decision of the district Court to the Magistrates Court.

They further appealed to the High Court and now to this court. Before this court briefs of argument have been filed and exchanged. In the appellants’ brief of argument the following issues have been formulated for determination:-

(1) What is the effect of the plea of res-judicata in respect of suit 39/98 when suit No 60/85 decided on 22/5/86 had settled the issue between the same parties on the same subject matter?

(ii) What is the effect of setting aside the majority judgment and affirming a minority judgment of the lower court by the superior court? Does not the minority judgment so restored having a binding effect on the parties capable of operating as a record estopped between the parties? Or, does such decision by a superior court pave way for a fresh litigation by the same parties in the same subject matter/or issue as opined by Justice Esang in his decision?

(iii) Was the learned Judge of the High Court of Ikot Abasi right to say that as the judgment of the senior Magistrate of 28/11/98 had not been appealed against by the defendants/appellants (sic).

(iv) Does not the decision of the Supreme Court of Nigeria bind the lower Courts until it was overruled itself? Or, was not the High Court Judge then presiding right to decline jurisdiction to entertain suit Number HAB/7/93 involving the land in the rural district then bearing in mind that the decision of the Supreme Court must be followed.

(v) If the answer is as the affirmative was the subsequent transfer of the Suit No. HAB/7/93 to the district Court of Ukpam Okon not a nullity, void and of no effect as the order was made then without jurisdiction?

(vi) Was the district Court of Okon right to hear and determine Suit No. 39/98 having previously sat in Suit 60/85 involving the same set of parties on the same land and the same issue?

(vii) Did the district Court of Ukpan Okon by suiting and deciding Suit No. 39/98 and thus overruling its previous judgment not do so as an appellate court in its own cause and without jurisdiction?

(viii) What was the effect of the latter judgment of the District Court of Ukpam Okon on the learned Magistrate’s judgment of 28/11/98 that set aside the majority decision in suit No. 60/85 restoring the minority decision of the lower Court?

On the other hand, in the respondents’ brief of argument two issues have been formulated for determination. They read:-

1. Whether the learned Judge was not right in dismissing the appeal from Magistrate’s Court on ground that res-judicata did not apply.

2. ON JURISDICTION: Whether the lower Court was not right in holding that” ONYENIRAN VS. EGBETOLA (1997) 5 NWLR (PT 504) 122 had been overruled and departed from as it was given without regard to section 236(1) of the 1979 constitution”

“And the current position of the law on the subject is as stated in ALHAJI KASIMA ADISA VS. EMMANUEL OYINWOLA (2000) 6 SC (PT 11) 47; 70.

I think this appeal can be determined by considering the above two questions of res-judicata and jurisdiction. It is to be noted that the Plaintiffs/Appellants/Respondents went to High Court, Ikot Abasi not on appeal but sued by a fresh action in Suit HAB/7/93, the same defendants over the same land called and known as “Ekpene Essien” for a declaration of customary right of occupancy.

The learned counsel for the appellants has maintained that the question to ask is whether the conditions for successful plea of res-judicata are not met in the circumstances of Suit No. 39/98 which came on appeal to the Magistrate’s Court as Suit No MOP/1A/99. He has correctly enlisted the preconditions for the application of the plea of res-judicata as follows:-

(1) The parties were the same in Suit No. 60/85 as in Suit 39/98.

(2) The subject matter was the same in both cases, even in the High Court case the subject matter being – Ekpene Essien land situate at Atan Idim Ndom in Ikot Mbon in Okon town.

(3) The issue was declaration of title to the land for the plaintiffs/respondents.

(4) This plea was raised timeously – see page 14 lines 22 – 25 of ROP. Also page 17 lines 6 – 10 the plaintiffs maintained that Suit No. 39/98 should not be struck out because the High Court directed the action to be taken in Ukpam Okon District Court ignoring the minority and majority decisions in Suit 60/85 already received as Exhibit B on the very subject matter and between the same parties.

It is clear that the District Court continued hearing and proceeded to determine Suit No. 39/98 against the objection by the defendants and their refusal to attend that Court after they had given notice of objection. See page 17 lines 13 to 17 where the warrant of arrest was ordered against the defendants.

It is the submission of the appellants’ counsel that once the conditions are met for allowing a successful plea of res judicata the court has one and only one duty to perform, that is, to strike out the fresh action between the same parties on the same issues and subject matter.

Thus, the District Court should have considered the merit of the plea. It is trite that where a Court of competent jurisdiction has settled dispute between parties on the same subject matter or issue none of the parties is entitled to relitigate the same matter or issue involving the same parties against. Refer to TUNDE OSUNRINDE & OTHERS VS. MUTAIRU T. AJAMOGUN & OTHER (1992) 2 SCNJ 79; UDO AND ANOTHER VS. OBOT & OTHERS (1989) 4 SCNJ 4; 7. The appellants have reiterated that there was absolutely no necessity for a fresh Litigation by the plaintiffs to relitigate with the same set of defendants the same claim of title to the same land in the same locality. Thus the plaintiffs are estopped. Thus since the decision of the Magistrate’s Court between the parties was subsisting both the Magistrate’s Court and the High Court were wrong to conclude that the plea of res judicata as raised by the defendants/applicant did not apply as there was subsisting judgment in respect of the same subject matter and the same parties, involving the same claim by the same plaintiffs.

It is important to reiterate that where a Court of competent jurisdiction has settled dispute between the same parties on the same subject matter or issue none of the parties is entitled to relitigate the same matter or issue involving the same parties again. Refer to OSUNRINDE & OTHER VS. MUTAIRU T. AJANOGUN & OTHERS (1992) 2 SCNJ 79 AND UDO AND ANOTHER VS. OBOT AND OTHERS (1989) 4 SCNJ 4;7. This issue has therefore been resolved in favour of the appellants.

The appellants’ counsel has argued that at the time of instituting action in Suit No. HAB/7/93 in the High Court, Ikot Abasi by the Plaintiffs/Respondents the Supreme Court of Nigeria in the case of ONYENIRAN VS. EGBOLA (1997) 5 LRCN 1376 HAD PRONOUNCED THAT THE High Court of state had no jurisdiction to entertain, hear and determined case of title to land in the rural area. Therefore, the Judge of the High Court, Ikot Abasi declined jurisdiction but transferred Suit HAB/7/93 to Ukpam Okon District Court where it was registered as suit No. 39/98. It is trite that if a court had no jurisdiction to hear or determine a matter then it could not have powers to order a transfer of the matter to any other Court. It would only strike out the matter or suit.

In this case therefore the transfer order was a nullity. It is trite law that ex-nihilo nihilfil- a nullity begets a nullity. Refer to GALADIMA VS. ALHAJI ADAMU TANBAI & OTHERS (2000) 6SCNJ 190, U.A.C. LTD VS. MACFOY (1961) 8 ALL ELR 1477.

Thus at the time the High Court Judge transferred HAB/7/93 for lack of jurisdiction to hear and determine the matter he equally lacked jurisdiction to transfer to Ukpam Okon District Court or any other Court. The transfer lacked jurisdictional competence. Consequently the proceedings and judgment of the District Court in Suit 39/98 were a nullity, void and of no effect and can not stand. Thus the judgments in appeals to the Magistrate’s Court and the High Court Ikot Abasi based on the said nullity proceedings in Suit 39/98 should equally collapse. See also LADIMEJI VS. SALAMI (1998) 4 SCJ 1. This issue is also determined in favour of the appellants. Consequently, the proceedings of the district Courts, Magistrates Court and the High Court are hereby set aside.

The appeal is allowed. Costs in the sum of N30,000.00 awarded to the appellants against the Respondents.

Other Citations: (2009)LCN/3302(CA)