Alhaji Haruna Usman V. Umaru Garba Kusfa & Anor (1992)

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MURITALA AREMU OKUNOLA, J.C.A. 

This is an appeal against the judgment of the High Court of Kaduna State sitting in its appellate jurisdiction delivered in Zaria on 13/12/89 which affirmed the earlier judgment of the Upper Area Court, Zaria.

The case of both parties leading to the present appeal is succinctly summarized in the judgment of the learned Judges of the Kaduna State High Court, Ibiyeye and Coomassie J. J. at page 44 of the Record of Proceedings as follows:-

“The 1st Respondent who was the plaintiff in the trial Upper Area Court Zaria sued both the appellant and the 2nd Respondent for the recovery of his farmland which his father entrusted to the 2nd Respondent for him (the 1st Respondent) and which the 2nd Respondent in turn gave out to the appellant on loan.

The 2nd respondent, admitted that the farmland in dispute was entrusted to him by Garba, the father of the 1st Respondent and that he in turn gave it to Usman Kosha, the deceased father of the Appellant.

The appellant denied the assertion of both Respondents and raised the issue of res judicata in the sense that five separate cases had been heard on the same farmland. Aside the said series of cases, the Appellant stated that it was Muhammadu, the late village head of Wuchichiri, who gave him “a wild vacant land” to cultivate and that he built a house on the land, cultivated it and had lived there peacefully for upwards of thirty seven years. The 1st respondent called seven witnesses in support of his claim while the Appellant called four witnesses to back up his assertion.

At the close of the trial, the learned Upper Area Court Judge gave judgment in favour of the 1st Respondent.

It is against this judgment that the Appellant appealed to the Court on the general ground. He subsequently sought and got leave not only to file and argue five additional grounds of appeal but also to call additional evidence.

After hearing the parties, the High Court dismissed the appeal and upheld the decision of the trial Upper Area Court, Zaria. Dissatisfied with this judgment, the Appellant has further appealed to this court.

From his grounds of appeal the appellant has raised the following 3 issues for determination in this appeal which agreed with those raised by the Respondent in his brief. These are:-

1. Whether the past judgments of the High Court of Kaduna State in Appeals Nos NCH/50A/74A/75 and KDH/12A/77 which were admitted by the High Court on Appeal as part of the proceedings from the Upper Area Court Zaria constituted Estoppel per rem judicatam or any of its species as to have resolved to finality any or all of the issues sought by the parties to the proceedings that has directly led to this Appeal?

2. Whether the proceedings and judgment in NCH/74A/75 (in particular) constituted issue estoppel between the appellant and the 2nd respondent as to debar the 2nd respondent from raising the issue of loan between him and the appellant and if answered in the affirmative whether there is any nexus or cause of action between the 1st respondent and the appellant over the said disputed farmland?

3. Whether the trial Court whose decision on the evidence was affirmed by the High Court correctly applied (if at all) the principles of Islamic Law to the assessment of the evidence before it?

Both counsel adopted their respective briefs filed herein on behalf of their clients. However, each counsel addressed us viva voce in order to highlight some points raised in the brief.
Learned counsel for the appellant Mr. J. B. Daudu in respect of Issue No.1 referred us to page 22 of the records which contain the application to tender the 3 judgments relied on for the plea of estoppel as part of the proceedings in the lower court. He referred specifically to the affidavit in support of the application on pages 22-25 of the records particularly paragraphs 8, 10-19 which show that the land in dispute are the same and the parties are the same.