Memudu Ajiboye V Alhaji Oloyede Ishola (2006)
LAWGLOBAL HUB Lead Judgment Report
ONNOGHEN, J.S.C.
This is an appeal against the judgment of the Court of Appeal holden at Kaduna in appeal No. CNK/140/94 delivered on 20th March, 1997. The facts of the case include the following:
The appellant as plaintiff at the Upper Area Court, Omu-Aran, Kwara State claimed ownership of a piece or parcel of land measuring about eight square kilometers, situate at Oke Maro, Amoyo for himself and as representing Abidoye family of Oke Maro. Both parties relied on history and gave traditional evidence of ownership and acts of possession.
The action was initially instituted at the Area Court Grade 1, Ajase-Ipo, Kwara State which resulted in an appeal to the Upper Area Court No. 1, Ilorin and subsequently to the High Court of Kwara State holden at Ilorin. The said High Court ordered a retrial of the matter before the Upper Area Court No.2, Ilorin which order was later varied upon an application by one of the parties for the retrial to be heard by the Upper Area Court, Omu-Aran.
The Upper Area Court, Omu-Aran conducted a visit to the locus in quo and after reviewing the evidence adduced by the parties and their witness, dismissed the appellant’s claim which decision resulted in an appeal to the High Court, holden at Omu-Aran in its appellate jurisdiction. The appeal was on an omnibus ground. The High Court, in its decision reversed the judgment of the Upper Area Court thereby awarding title to the disputed piece of land to the present appellant. The present respondent was not satisfied with that judgment and appealed to the Court of Appeal, Kaduna. The present appellant then raised a preliminary objection as to the competence of the appeal in that no leave was sought and obtained prior to the filing of the appeal which objection was dismissed and the Court of Appeal eventually entered a non-suit. The present respondent who was defendant appealed to the Supreme Court on the order of non-suit while the present appellant cross-appealed against the dismissal of their preliminary objection and the order of non-suit and prayed the Supreme Court to affirm the judgment of the High Court.
The Supreme Court in its judgment in appeal No. SC.271/1990 delivered on 1st July, 1994 and reported in (1994) 6 NWLR (Pt.352) 506 held that the main appeal was incompetent for lack of leave but allowed the cross-appeal.
However on the 13th day of July, 1994 the present respondent filed an application at the Court of Appeal, Kaduna for extension of time within which to appeal and leave to appeal against the judgment of the High Court, Omu-Aran, which application was granted despite objection by the present appellant that the matter had been decided on the merit by the Supreme Court and can therefore not be reopened. The appeal was subsequently heard de novo. The appellant again filed preliminary objection to the jurisdiction of the Court of Appeal to hear the appeal on the merit which objection was overruled on the ground that there was no valid judgment of the Court of Appeal on the subject matter between the parties. On the merit of the appeal the Court of Appeal allowed the appeal and set aside the judgment of the High Court thereby restoring the judgment of the trial Upper Area Court, Omu-Aran. This appeal is therefore against that judgment. Learned counsel for the appellant, A. F. Afolayan, Esq. submitted two issues for the determination of the appeal in the appellant’s brief of argument filed on 5/12/2001 and adopted in argument of the appeal. The issues are as follows:-
“(i) Whether on the evidence on record, the Court of Appeal was right in setting aside the decision of the appellate High Court and affirming the decision of the trial Upper Area Court which dismissed the plaintiff/appellant’s suit.
(ii) Whether the Court of Appeal had jurisdiction to try the case having regard to the fact that the Supreme Court had already decided the same case in suit No. SC.271/1990 of 1st July, 1994 reported in (1994) 7-8 SCNJ (Pt.1) 1; (1994) 6 NWLR (Pt.352) 506.”
It must be observed that since issue No.2 attacks the jurisdiction of the Court of Appeal and a negative resolution of same would dispose of the appeal, it ought to have been listed as the first issue for determination, not the other way round. The present order in which the issues are listed puts the cart before the horse. In this judgment therefore, I will consider issue No.2 first since jurisdiction is the foundation of all adjudication and a proceeding without jurisdiction is null and void.
Learned counsel for the respondent, Shitu A. Bello, Esq., in the respondent’s brief filed on 6/2/02 submitted three issues for determination. These are as follows:-
“1. Whether the judgment of the Supreme Court in suit No. 271/1990 of 1st July, 1994 was on merit and final so as to support the appellant’s plea of estoppel per rem judicatam.
- Whether, if the Supreme Court judgment in suit No. SC.271/1990 was not on merit or final, the Court of Appeal, Kaduna was not right in assuming jurisdiction to hear and determine respondent’s fresh appeal No. CA/K/140/94.
- Whether the Court of Appeal was not right in setting aside the decision of the appellate High Court on the ground that the appellate High Court was wrong to have re-evaluated the evidence already evaluated unquestionably by the trial court.”
Looking closely at the issues formulated by learned counsel for the respondent, it is clear that there is no difference between his issues No.1 & 2 both of which constitute one issue and are subsumed in appellant’s issue No.2. In deciding this appeal therefore, I intend to use the issues as formulated by learned counsel for the appellant.
On the issue on jurisdiction of the lower court, to hear and determine the appeal on ground of res judicata, learned counsel for the appellant referred to the judgment of this Court in appeal No. SC.271/1990 which was an appeal and a cross-appeal involving the parties to this appeal on the very subject matter in the present appeal and stated that the defendant therein appealed against the order of non-suit made by the Court of Appeal in appeal No. CA/K/156/87 maintaining that the proper order to make was one of dismissal of the respondent’s claim while the plaintiff cross-appealed against the dismissal of the preliminary objection to the competence of the appeal because the leave to appeal was granted by a single Judge, and the order of non-suit of the plaintiff’s claim maintaining that the judgment of the High Court granting the plaintiff’s claim ought to have been affirmed; that the Supreme Court did dismiss the main appeal while the cross-appeal of the present appellant was allowed. Learned counsel then submitted that a cross-appeal is independent of the main appeal and that the fact that the main appeal was dismissed will not affect the merit of the cross-appeal relying on Akanke Olowu v. Amudatu Abolore (1993) 6 SCNJ (Pt.1) 15; (1993) 5 NWLR (Pt.293) 255; Registered Trustees of Amorc v. Henry Awoniyi (1994) 7/8 SCNJ (Pt.2) 390 at 422; (1994) 7 NWLR (Pt.355) 154. Learned counsel further submitted that in view of the decision of the Supreme Court in the said appeal No. SC.271/1990, the respondent cannot relitigate the claim afresh in the Court of Appeal as has been the case in the present appeal, on the ground of res judicata relying on Shitta Bey v. L.E.D.B. (1962) 1 All NLR 372; (1962) 23 SCNLR 107; Ezenwa v. Kareem (1990) 21 NSCC (Pt. 2) 284; (1990) 3 NWLR (Pt.138) 258; Odjevwedje v. Echanokpe (1987) 1 NWLR (Pt.52) 633; Balogun v. Adejobi (1995) 2 NWLR (Pt.376) 131; Dokubo v. Omoni (1999) 8 NWLR (Pt.616) 647; Okukuje v. Akwido (2001) 3 NWLR (Pt.700) 261 at 316,318 – 319. Learned counsel also submitted that by allowing the cross-appeal, the Supreme Court affirmed the judgment of the appellate High Court and thereby pronounced on the claim of the plaintiff/appellant and deprived the Court of Appeal of the jurisdiction to again entertain the present appeal. Learned counsel therefore urged the court to resolve the issue in favour of the appellant.
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