Sunday Malgit V. Timothawus Dachen (1997)

LawGlobal-Hub Lead Judgment Report

OGUNTADE, J.C.A. 

The appellant was the plaintiff before the Upper Area Court, Pankshin. The plaintiff sued the respondent, as the defendant, claiming the ownership of a piece of land. In reaction, the defendant brought a motion praying the court to “dismiss suit No. CV/142/90 on grounds of Res Judicata.”

The hearing of plaintiff’s suit had not commenced at the time the defendant brought the motion for its dismissal. The defendant as applicant deposed to an affidavit in support of his application. The affidavit reads thus:

“1. That I am the applicant in the above named suit, I know the land in dispute, the respondent is known to me by virtue of which position I am conversant with the facts herein deposed to.

2. That I know as a fact that I sued John Dawulenga junior brother to the respondent over a piece of farmland in Mushu in Mangu Local Government Area before the Area Court I Bokkos in suit No CV 32/85 and judgment was given in my favour by the said court over the said farmland.
3. That the proceedings of the said court referred to in paragraph 2 above is hereby annexed to this affidavit and marked as annexure “A”.
4. That I know as a fact that the said John Dawuleng, a junior brother to the respondent being dissatisfied with the said judgment referred to in paragraph 2 and 3 above appealed to the Customary Court of Appeal Jos and lost.
5. That record of proceedings of the Customary Court of Appeal Jos which affirmed the decision of the Area Court I Bokkos is hereby annexed to this affidavit and marked as annexure “B”.
6. That I know as a fact that the respondent Sunday Malgit is also known as Sunday Dawuleng and a senior brother of John Dawuleng whom I sued in respect of the said land in 1985 before the Area Court I Bokkos.
7. That the respondent is not only a senior brother to the said John Dawujeng, that he also testified for him in respect of this land before the Area Court I Bokkos as DW3 as contained in page 6 of annexure “A” annexed to this affidavit.
8. That I know as a fact that the respondent did not only testify for his junior brother. John Dawuleng but he also attended the court proceedings right from 9th day of February 1985 till judgment was given against him on the 17th April, 1985 and that he also attended the proceedings of the appeal filed by the junior brother before the Customary Court of Appeal Jos till the appeal was dismissed on the 12th day of September, 1985 as contained in pages 7 and 8 of annexure “B” annexed to this affidavit.
9. That I know as a fact that it is the same piece of farmland situated a Mushu which was awarded to me by the Area Court I Bookos and affirmed by the Customary Court of Appeal Jos that the respondent has again sued me.
10. That the present plaintiff/respondent not only was he aware of the last suit, he testified as DW3 as contained in page 6 of annexure “A” but he also attended all the proceedings from the Area Court I Bookos to the Customary Court of Appeal Jos.
11. That one of my counsel Ekeakhogbe Orchris (Esq.) informed me and I verily believe him that the principles of Res-Judicata operates in this case to prevent the respondent from laying fresh claim over the aforesaid farmland.
12. That the counsel further informed me of the truth of which I verily believe that the present circumstances of this case falls within the principle of Res-Judicata and so the Suit No. CV/142/90 ought not be heard again as same had earlier been determined on its merit by a court of competent jurisdiction.
13. That there has to be an end to litigation over this farmland as opposed to this continues litigation procedure, the respondent who is a blood relation of the said John Dawuleng wants to adopt.
14. That this application is made in the interest of justice and at the earliest opportunity.
15. That the respondent will not be prejudicial if this application is granted.
16. That I swear this affidavit in good faith, believing its contents to be true and correct to the best of my knowledge and information and belief and by virtue of the Oath Act, 1963.”

The Plaintiff, who was the respondent on the application did not file a counter-affidavit. The Upper Area Court heard the motion and on 27/2/91 ruled that plaintiff’s suit was caught by the doctrine of estoppel per Res Judicata. The case was dismissed. The Plaintiff brought an appeal before the Customary Court of Appeal against the order dismissing his suit. The Customary Court of Appeal on 14th November, 1991 in its judgment upheld the dismissal of plaintiff’s suit. The plaintiff was dissatisfied. He has brought a further appeal before this court on three grounds of appeal which read thus:

“(1) The judgment of the Customary Court of Appeal is against the weight of evidence.

(2) The learned justices of the Customary Court of Appeal, Jos, erred in law when it confirmed the judgment of the trial Upper Area Court, Pankshin dismissing the appellant’s claim on the erroneous belief that res judicata applied in circumstances of this case.

PARTICULARS OF ERROR

(a) The land claimed by the appellant was not customarily identified and described before the court to enable it draw the conclusion that the land claimed has been previously litigated upon by the parties.

(b) It was an error in law to have used affidavit evidence in a customary land suit of this nature where the land claimed was not identified and described to dismiss appellant’s claim.

(c) It was an error of law to apply the principles of res-judicata when the judgment, cannot be tied to a particular land but merely on the assumption that the affidavit evidence before the court was not challenged and therefore an admission of the facts deposed therein.

3. The Justices of the Customary Court of Appeal erred in law when it confirmed the decision of the trial court that did not give the appellant a fair trial in accordance with customary mode of proving his claim by oral evidence.

PARTICULARS OF ERRORS

(a) The claim before the trial court was stated to be “claim for farmland” and this is not sufficient to warrant the use of affidavit evidence to deny the appellant the opportunity to prove his claim.

(b) The claim for farmland as recorded did not indicate where the land is situate and its boundaries and the court did not inspect the land to confirm whether the new claim is same as previously tried before.

(c) The appellant case was technically estoppel and denied fair hearing.”

Before this court the parties filed and exchanged briefs. The appeal was sat down for hearing on 19/3/97. On the said date however, Mr. O.C. Ekeakhagbe for the respondent raised a preliminary objection concerning the jurisdiction of this court to hear the appeal. Counsel referred us to Section 224(1) of the 1979 Constitution of Nigeria (as amended) and submitted that the appellant could only appeal to this court as of right on a question of customary law. According to counsel, the grounds of appeal filed by the appellant raise only the issue of Res judicata which is unknown to customary law. It was the submission of the counsel that the Notice of appeal was therefore defective and that this court lacked the jurisdiction to entertain the appeal. Counsel relied on Golok v. Diyalpwan (1990)3 NWLR (Pt.139) 411 at418; Mavoto v. Mawe & 2 Ors – appeal No. CA/J/113/93 decided by this court on 13/11/96.

Mr. Essien for the appellant submitted that res judicata is a principle of customary law. He said that the mere fact that the two lower courts considered res Judicata was evidence enough that res judicata is known to Customary law. Counsel referred to Udeze & Ors v. Chidebe (1990) Times Weekly Law Report 1 at 20 (1990) 1 NWLR (Pt.125) 141 and Order 11 Rule 3 of the Area Court Rules. Now Section 224(1) of the 1979 Constitution provides:-

“224(1) An appeal shall lie from decisions of the Customary Court of Appeal of a State to the Federal Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of Customary law and such other matters as may be prescribed by an Act of the National Assembly.”

In Golok v. Diyalpwan (supra) the Supreme Court held that the intendment of the 1979 Constitution is that the right of appeal to the Court of Appeal from a decision of the Customary Court of Appeal of a state should be one tier. It follows therefore that the 1979 Constitution does not confer the right of an appeal with leave.

That being the position, a litigant as laid down under Section 224(1) can only appeal “with respect to any question of Customary law.” In the instant appeal, the second ground of appeal raises the issue of res judicata which was successfully invoked before the Upper Area Court and the Customary Court of Appeal. It was the contention of respondent’s counsel that the doctrine of res judicata is unknown to customary law. The appellant’s counsel argued otherwise.

Res judicata is very known as a rule of evidence whereby a party is precluded from disputing in any subsequent proceedings matters which had been adjudicated upon previously by a competent court between him and his opponent. The principle behind this rule, is that where a competent court 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.

In Udo v. Obot (1989) 1 NWLR (Pt.95) 59 at 71, the Supreme Court discussing the nature of the plea of res judicata observed:

“A plea of res judicata can be maintained only when the same question as has been judicially decided was again raised between the parties. If therefore an action is brought and the case is decided on its merits and a final judgment is obtained by either party then the parties are concluded and they cannot canvass the same question again in another action inter partes…..For the plea of estoppel per Rem judicatam to apply there must have been a judicial determination of a cause agitated by the real parties, upon which a real interest has been settled:- Harrop v. Harrop (1920) 3 K.B. 386. The principles underlying estoppel by record are:

(a) Interest reipublicae ut sit finis litum – It is for the common good that there should be an end to litigation.

(b) Nemo debet his vexari pro una et eadem causa – No one should be sued twice on the same ground. No one shall be twice vexed for one and the same cause.”

Although the fact that the doctrine of res judicata is often invoked in its latin phraseology and that its practical application can be technical often lead to a belief, that it is foreign to our native law adjudication, the principles behind it are founded on a sound common sense and justice. It now enjoys a universal application and has long been recognised in our native law adjudication. The older law reports are replete with the invocation of the doctrine. What it means in simple language and denuded of its Latin expression is that parties should not be troubled a second time over a matter that has been previously settled for them by a competent court.

It is my view that the doctrine of res judicata is well established as a part of our customary law. Since the 2nd ground of appeal is rooted on the doctrine of res judicata I am satisfied that there is at least one ground of appeal before us on a question of Customary law. This court therefore has jurisdiction to hear the appeal. The preliminary objection is overruled with N40.00 costs to the appellant.

Other Citations: (1997)LCN/0344(CA)