Alhaji Lawal Tunbi V. Israel Opawole (2000)

LAWGLOBAL HUB Lead Judgment Report

KALGO, J.S.C.

This appeal is against the decision of the Court of Appeal, Kaduna Division, which was given on 23rd of July, 1992. The case, which had a protracted history, concerned the dispute over the ownership of 3 piece of land in Kwara State. It all started in the Emir’s Court, Ilorin in 1956 where the parties’ predecessors-in-title contested over the ownership of the land in dispute and that court found that the land belonged to one Salami Olokoba, the predecessor-in-title to the respondent. The proceedings of the Emir’s court was marked Exhibit D’.

In 1978 the appellant sued the respondent over the same piece of land in the High Court and Upper Area Court in Ilorin but on production of Exhibit ‘D’ both cases were struck out and discontinued. Thereafter, the appellant moved on to the land and commenced building construction on it. The respondent reacted by suing the appellant before the Ibolo Area Court Grade II, Erin-Ile, Kwara State, and praying the court to drive the appellant out of the land in dispute by enforcing the judgment of the Emir’s Court, (Exhibit D). After hearing the witnesses in the case and visiting the land in dispute, the trial Area Court in its decision, refused to eject the appellant from the land in dispute. Thereafter, the respondent appealed to the Upper Area Court, Ilorin, which heard the appeal and ordered the appellant to leave and “remove his building from the land” in dispute within stipulated time.

The appellant dissatisfied with this order appealed to the High Court, Appellate Division, Ilorin which also heard the appeal and made the following order:-

“In the result, we allow this appeal, set aside the decision of the Upper Area Court 1 Ilorin and affirm that of the Ibolo Area Court Grade 2, which dismissed the claim of plaintiff/respondent.”

The respondent was not happy with this order either and he appealed to the Court of Appeal Kaduna. The Court of Appeal, after hearing the parties, allowed the appeal set aside the decision of the High Court Ilorin, and restored the decision of the Upper Area Court, Ilorin. The appellant has now appealed to this court. Written briefs were filed and exchanged in this court by the parties. It is pertinent to observe at this stage that the appellant filed a brief first on the 5th of May, 1993. This was however superseded by another appellant’s brief which was filed on the 24th of November, 1998 with the leave of the court.

At the hearing of the appeal, counsel for both parties adopted and relied upon their respective briefs.

In the appellant’s brief, the following issues were formulated for the determination of this court:-

“1. Whether the judgment of the Court of Appeal is not erroneous on account of the fact that the consideration of the appeal was based on the brief of argument relied upon by the respondent in that court but on an abandoned brief.

2. Whether the relief sought by the plaintiff in the trial court amounted to an application seeking to enforce the 1956 judgment of the Emir’s court and whether the plaintiff had a right to enforce the judgment in the 1956 suit and if so whether the application could be granted in this case in the light of the fact that the judgment did not define the area of land it affects precisely or adequately.
3. Whether a photocopy of a certified copy of judgment which does not show that it was signed by a judge or other judicial officer authorised to sign a judgment is admissible in evidence in an Area Court.
4. Whether the plea of estoppel per rem judicata is available to the plaintiff to ground an action by him and not to oppose or defend an action brought against him by adverse party.
5. Whether the judgment of the Court of Appeal which consist of the judgment of only one of the three justices of the court who heard the appeal before the court is valid having regard to the requirements of Section 258 of the Constitution of the Federal Republic of Nigeria, 1979″.

The respondent in his brief also identified the issues for determination in the appeal thus:”

1. Whether the Appellant could be said to have not been heard by the Court of Appeal, Kaduna, before its judgment dated 2317/92 was entered, when all the points raised both in the brief and in oral address were considered by the court in its said judgment.
2. Was the Court of Appeal, Kaduna, in error, when it held that the doctrine of estoppel per rem judicata was available to the Respondent In view of the fact that:-

(a) The Appellant admitted both in his brief and oral address in the court, that the parties in Exhibit D. were successors in-title to the parties in this case.

(b) The identify of the land in dispute in the instant case, was the same as the land in Exhibit D and

(c) The judgment in Exhibit D was a final judgment of the Court of competent jurisdiction.

3. Was Exhibit D properly admitted, if yes, was the Respondent not right in applying to the trial court to enforce it, as he did in this case I consider that the issues formulated by the appellant are more appropriate and acceptable to me having regard to the grounds of appeal filed and I adopt them for the purpose of this appeal, I shall take issue 1 first. It reads:-

“Whether the judgment of the Court of Appeal is not erroneous on account of the fact that the consideration of the appeal was not based on the brief of argument relied upon by the respondent in the court but on abandoned brief”.