Inyaki Abe & Ors V. Iorhemba Akaajime (1989)

LawGlobal-Hub Lead Judgment Report

ADIO, J.C.A.

The claim of the respondent, who was the plaintiff in the Area Court, Nyamatsor, holden at Abwa, Benue State, was as follows:

“The plaintiff claims his area of farmland from you defendant.”

The evidence led in the trial Area Court by the respondent was that the land in dispute belonged to his forefathers and that he (respondent) used to accompany them to the farm land when he was young. He left the area when he grew up but left his elder brother, Achiaga Shie, in charge of the farm.

Subsequently, the appellants went to disturb his older brother on the farm and committed various acts of trespass there under the pretext that the farmland belonged to one Oramee Enze who purported to grant a portion of the aforesaid farmland to each of them. The allegation was that Oramee Enze had sued the elder brother of the respondent, Achiaga Shie, for the same farmland and won. The appellants, therefore, relied on the plea of res judicata. The trial Area Court considered the plea of res judicata and held that it could not apply as the land in respect of which Enze obtained judgment against Shie was different from the land in dispute in this case. The trial Area Court accepted, the evidence of the respondent and his witness and gave judgment for the respondent.

Dissatisfied with the judgment of the trial area court, the appellants appealed to the High Court, Gboko, Benue State. The Notice of Appeal is at page 1 of the record of proceedings. The grounds of appeal, without their particulars, were:-

“1. The trial Area Court erred in law in entertaining this case after the appellants had pleaded res judicata.

2. The trial Area Court erred in law in refusing to accept as Exhibit the judgment of the Court of Appeal in Appeal No.FCA/K/56/81.
3. The judgment is against the weight of evidence.”

It was common ground that the learned Counsel for the appellants abandoned grounds 1 and 2 of the grounds of appeal relating to the plea of res judicata. In the circumstance, the learned Counsel for both parties and the High Court ought to have realised that those aspects of the grounds of appeal should no longer be canvassed or considered in connection with the determination of the appeal. What, in fact, happened, as revealed by the record of proceedings was that the plea of res judicata was canvassed by the learned Counsel for both parties and was considered for the determination of the appeal by the High Court as if the grounds of appeal relating thereto had not been abandoned by the learned counsel for the appellants. The High Court, Gboko, held that the trial Area Court was right in rejecting the plea of res judicata. It also held that the Area Court was right in accepting the evidence of ownership led by the respondent and affirmed the decision of the trial Area Court declaring the respondent the owner of the land in dispute and awarding it to him. The appeal of the appellants to the High Court, Gboko, was dismissed by the court. Dissatisfied by the judgment of the High Court, Gboko, dismissing their aforesaid appeal, the appellants have now appealed to this court.

When the application for leave to appeal was made to this court, some of the proposed grounds of appeal related to the plea of res judicata which, as has been stated above, had been abandoned at the High Court. This court granted leave to appeal to this court, to the appellants. The grounds of appeal against the judgment of the High Court, Gboko, which are set out in the Notice of Appeal, at pages 52-56 of the record of proceedings, included grounds relating to plea of res judicata in the aforesaid proposed grounds of appeal in support of the application for leave to appeal mentioned above, I will deal later with the objection raised by the learned Counsel for the respondent to the aforesaid grounds of appeal. The grounds of appeal, without their particulars, are as follows:-

“(1) The Appellate High Court erred in law in holding that:-

‘The trial Area Court was right when it accepted the evidence tendered before it, acted upon it and declared the respondent the owner of the piece of land he claimed from the appellant:

(2) Having held that –

‘From the above passage of the judgment of the Court of Appeal, it is clear that the suit which originated from the Area Court Nyamatsor and which was finally determined by the Court of Appeal was Suit No.CV.34/79 and not Suit No.CV.58/79 which is in evidence as Exhibit ‘B’, The trial Area Court was therefore in error on this point when it related Exhibit ‘D’ to ‘B’, Indeed Exhibit ‘D’ was based on a judgment which was not brought to the attention of the trial court in this matter on appeal.’

the Appellate High Court erred in law in holding that –