Tavershima M. Hambe & Anor V. Agber Hueze & Ors (2001)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C.

This is an appeal against the judgment of the Court of Appeal (Jos Division) striking out the appellants notice of appeal to it and dismissing the appeal based on the said notice. The appellants, as plaintiffs had sued the respondents in the Upper Area Court of Benue State in the Gboko Judicial Division claiming ownership of a piece of land situated in Mbazegh in Kusuv clan. At the conclusion of trial, the trial court found for the Appellants and entered judgment for them. The Respondents appealed to the High Court of Benue State sitting in its appellate jurisdiction. The High Court allowed the appeal, holding that the plea of estoppel per rem judicatam raised by the respondents at the trial Upper Area Court succeeded and struck out appellants’ claim.

Being dissatisfied with the judgment of the High Court, the appellants appealed to the Court of Appeal Jos upon two grounds of appeal which read:

“(1) That the High Court of Justice misdirected itself in law and facts when it held that:

‘In our view the land the subject matter on which Ameradu Area Court based its decision was the same on which the two respondents based their suit before the Upper Area Court. The Claim before Ameradu Area Court was for title to that piece of land. Similarly, it was the same issue the respondents raised for decision before the Upper Area Court. The 1st respondent having amply participated, as a witness to one of the outstanding parties at Ameradu Area Court on the same subject matter and issue cannot be allowed to relitigate the same matter and issue. He is estopped for he had allowed his interest to be fought for him by the side he testified for at Ameradu Area Court.’

And this occasioned a miscarriage of justice.

Particulars of Misdirection:

(a) In law, a witness who has already testified in a civil suit as to his knowledge of the subject matter cannot be said to be either a party to the action nor a privy of the party for whom he has testified.

(b) No estoppel can operate against a person who has not been a party or a privy to any action.

2.That the decision of Gboko High Court appeal No. GBD/2A/84 delivered on 4th November, 1987 is against the weight of evidence. ”

In their brief of argument before the Court of Appeal (hereinafter is referred to as the Court below) they posed three issues as calling for determination in the appeal, that is to say:

“(a) Whether the land the subject matter on which the Ameradu Area Court based its decision was the same land on which the appellants have now brought their suit in the Upper Area Court;

(b) Whether the parties in the proceedings before the Ameradu Area Court can be said to be the same as those in the proceedings in the Upper Area Court, Gboko; and

(c) Whether the finding made by the High Court and conclusion arrived at by it is supported by the evidence before the Court”.