Kplishi Kuusu Vs Vanger Udom (1990)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C.

In this suit which started in the Grade II Area Court of Ameradu, Benue State, the respondent/plaintiff claimed against the defendant/appellant for title to a piece of farm land at Ubwage.

The Area court after hearing the parties and their witnesses preferred the case of the plaintiff and entered judgment in his favour on 23rd October, 1981. The defendant appealed to the High Court of Benue State sitting at Gboko which in exercise of its appellate jurisdiction, allowed his appeal and entered judgment in his favour.

This was on 18th March, 1983. The battle between the parties was far from over for the respondent herein appealed against the High Court judgment to the Court of Appeal, Jos Judicial Division. That court (coram: Agbaje, J.C.A. as he then was, Jacks and W.T. Macaulay, JJ.CA.) on 3rd February, 1986 allowed the appeal, set aside the judgment of the High Court and entered judgment in favor of the plaintiff (respondent herein). The defendant/appellant has now appealed to this court.

When this appeal came up for hearing on 4th December, 1989, appellant was present but his counsel was absent. His counsel, J.A. Yaji, Esq. had written to the court informing it of a near fatal accident in which he was involved. He regretted his inability to be present but applied to the court to take the appeal as per his brief of argument dated 19th June, 1989 and filed in this court. That request was granted. Learned counsel to the respondent, I.A. Nomishan, Esq. who was present then adopted the respondent’s brief of argument dated 3rd July, 1989 and duly filed in this court. The appeal has therefore been taken as argued in the briefs of argument of the parties.

Before proceeding to the issues arising in this appeal, I think I ought to deal with the preliminary objection raised by respondent’s counsel on page 7 of his brief of argument. There, he had challenged as incompetent the 4th of the 4 grounds of appeal filed by the appellant to this court. In the said ground, the appellant complained that, “(4) The learned justices of the Appeal Court erred in law in refusing to entertain the plea of res judicata, and lack of jurisdiction raised by the defendant at the trial court and which was wrongly overruled by the High Court on the ground that the names of the parties were not the same.

Particulars

The issue of jurisdiction can be raised at any time even for the first time at the Appeal Court, as it is fundamental to the competence of the whole action. It was therefore wrong for the justices of Appeal Court to have refused to entertain that plea on the grounds that there was no cross appeal. This ground of appeal is misconceived in the extreme but since it has been raised, let me treat it with dispatch. I shall deal with the other objections to it below, but let me say straight away that the matter was neither raised by way of a cross-appeal nor respondent’s notice before the Court of Appeal.

Even if it was a matter of jurisdiction as claimed by the appellant, it was not even raised in argument before the Court of Appeal as is so obvious from the notes of counsel’s submissions before that court at page 32 of the record. This issue of res judicata arose this way. In the Grade II Area Court, the appellant had, as part of his case, set up a plea of res judicata on the ground that “respondent/plaintiff who is a brother to Zaki Anhungwa is a privy (sic) in exhibit ‘A’ Buruku court proceedings in case No.CV/256/76 dated 14/1/71 has no locus standi in law to sue me, “The Grade II Area Court rejected the defence holding that the area involved in the case exhibit “A” was different from the one in dispute in the instant case.

Although, the High Court gave judgment in favour of the defendant, it also rejected the plea of res judicata holding that “this discrepancy in nomenclature was not explained by the appellant during his argument.” The appellant now wants to agitate this matter before this court. Learned counsel to the respondent has in his brief complained that the appellant neither sought nor obtained leave of this court to raise such a matter.

Appellant’s counsel has on his own side argued that a matter of jurisdiction can be raised at any point. It is not in dispute that a matter of jurisdiction can be raised at any stage of the proceedings even in this court. But is this a matter of jurisdiction There is nothing in the records to how that the jurisdiction of the Area Court Grade II was ever in issue. A plea of res judicata is a special defence and does not question the jurisdiction of the court before whom such a plea is taken.

Both courts in effect held that that defence did not avail the defendant/appellant. This ground does nothing more than raise the issue of whether the plea of res judicata should have been upheld. As I said earlier in this judgment, the appellant neither crossed nor raised a respondent’s notice against the judgment of the High Court on this issue. The appellant, also as I said earlier, did not even raise it in argument before the Court of Appeal.

At best, this ground of appeal can be taken to be raising a matter which was not taken in the Court of Appeal. Under the constitution, appeals go from the Court of Appeal to this court, and ordinarily this court ought not to entertain any matter, which has not been taken before the Court of Appeal and the opinion of the learned Justices of that court on it ascertained. I say ordinarily because it is settled, and I need not refer to any authorities on this, that this court will grant leave to an appellant to make such a matter if it deals with a substantial issue of law or procedure and to avoid a miscarriage of justice. The appellant has not applied for leave, but if he did, I would have refused it. To grant it would lead to a miscarriage of justice. The appellant went to the Court of Appeal on grounds of appeal he considered important for his case. Having failed there, he now wants to run back to res judicata! That cannot and should not be allowed. Ground 4 of the grounds of appeal is accordingly struck out.

I shall now look at the issues for determination as they relate to the remaining 3 grounds of appeal. In his brief of argument, learned counsel to the appellant formulated the issues thus: