Alhaji Haruna Usman Vs Umaru Garba Kusfa (1997)

LAWGLOBAL HUB Lead Judgment Report

WALI, J.S.C. 

The respondent, who was the plaintiff, sued the present appellant;and Galadima Tanko before the Upper Area Court, Zaria City, for the recovery of a farm land which his late father entrusted to Galadima Tanko to keep for him until he came of age. Galadima Tanko gave out the farm in dispute to the appellant on loan.

While Galadima Tanko admitted the respondent’s claim, the appellant denied it and claimed that the late village head of Wucicciri Muhammad, gave him the land in dispute when it was a wild bush and that it was he that cleared it, built his house thereon and had been living therein for upwards of 37 years during which he had been cultivating the land as his own farm.

During the trial the respondent called 7 witnesses to prove his claim while appellant called 4 witnesses to support his own claim. At the end of the trial, the Upper Area Court found in favour of the respondent. The appellant appealed to the appellate division of the High Court of Justice Kaduna before which he lost and the judgment of the trial court was affirmed.

The appellant, not satisfied with the decision of the High Court, appealed against it to the Court of Appeal Kaduna Division. The Court of Appeal after a meticulous consideration of the appeal, dismissed it. The appellant has now further appealed to this court against the Court of Appeal decision.

In compliance with the Rules of this Court learned counsel for the appellant and the respondent filed and exchanged briefs which were orally elaborated upon by learned counsel on the day the appeal was heard.

In the appellant’s brief filed by J.B. Daudu, learned Senior Advocate, the following three issues were raised for consideration and determination by this Court:-

“1. Whether the Court of Appeal properly and adequately considered one of the main complaints of the appellant before it, which was that the 3 judgments admitted by the High Court sitting on appeal constituted res judicata; and if answered in the negative, what is the appropriate remedial step to take in the circumstances

2. Whether the judgments to wit: NCH/50A/74 Umaru Garba v. Sarkin Wuchichire, NCH/74A/75 Alhaji Haruna Kosa v. Galadima Tanko and KDH/12A/77 Umaru Garba Kusfa v. Alhaji Usman Kosa admitted by the High Court as additional evidence (after the refusal of the trial court to consider them along with other judgments brought to its attention) constitute in the light of the admissions of the parties and other surrounding circumstances, res judicata so as to bar any subsequent judicial proceedings such as the one that had led to this appeal
3. Whether the Court of Appeal, which affirmed the judgments of the High Court and Upper Area Court, applied the correct principle of Sharia (Islamic Law) to the evidence as assessed on the printed records and whether the complaint by the appellant that all the courts below (particularly the Court of Appeal) applied the wrong standard of proof/procedure in adjudicating upon the instant dispute, is justified in law

Chief C.A. Ekhasemomhe, learned counsel for the respondent formulated three issues in his brief for determination. The three issues are:-

I. Whether or not the appellant established the plea of res judicata he raised in this matter and whether or not the plea was adequately considered by the Court of Appeal in this suit

Whether or not the three judgments, namely NCH/50A/74 Umaru Garba v. Sarki Wucicciri Mohammed, NCH/74A/75 Alhaji Kosa v. Galadima Tanko and KDH/12A/77 (Haruna) Umaru Garba v. Alhaji Usman Kosa admitted by the High Court as additional evidence satisfy the conditions for a successful plea of res judicata in respect of the subject matter in this suit.

2. Whether or not the Court of Appeal applied the correct procedure as regards burden of proof in Islamic Law in the assessment of the evidence adduced in this suit.”

Learned Senior Advocate took Issues 1 and 2 together. His main-complaint under these issues is against the judgment of the Court of Appeal where it upheld the decision of the High Court that the judgments in NCH/50A/74 Umaru Garba v. Sarkin Wucicciri; NCH/74A/75 Alhaji Haruna Kosa v. Galadima Tanko and KDGH/12A/77 Umaru Gara Kusfa v. Alhaji Usman Kosa, did not constitute res judicata against the respondent in his present action. He submitted that the Court of Appeal instead of considering the issue on its broad perspective narrowed its consideration to the non-production of records of proceedings in the three judgments pleaded and concluded that in their absence, the judgments per se did not constitute res judicata.

The learned Senior Advocate argued that for the plea of res judicata to succeed a judgment of a court of competent jurisdiction is sufficient where it satisfies all the conditions attached to the defence. He cited the provisions of Sections 49 and 54 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990 in support. He also said that the affidavit evidence used in the case, and not challenged at the time of its use disclosed sufficient facts of the cases relied upon and cited Iyaji v. Eyigebe (1987) 3 NWLR (Pt.61) 523 in support and several other authorities.

In reply to the submissions above, learned counsel for the respondent referred to NCH/50A/74, NCH/74A/74 and KDH/12A/77 and submitted that none of them satisfied the conditions of res judicata. He argued that “the land in NCH/50A/74 is not the same land in dispute between the appellant and the respondent in this suit. He also submitted that there is no evidence that it was the land in NCH/50A/74 that Sarkin Wucicciri Mohammed gave out as a gift to the appellant in the matter. ”