Sunday Malgit V. Timothawus Dachen (1997)

LawGlobal-Hub Lead Judgment Report

OGUNTADE, J.C.A. 

The appellant was the plaintiff before the Upper Area Court, Pankshin. The plaintiff sued the respondent, as the defendant, claiming the ownership of a piece of land. In reaction, the defendant brought a motion praying the court to “dismiss suit No. CV/142/90 on grounds of Res Judicata.”

The hearing of plaintiff’s suit had not commenced at the time the defendant brought the motion for its dismissal. The defendant as applicant deposed to an affidavit in support of his application. The affidavit reads thus:

“1. That I am the applicant in the above named suit, I know the land in dispute, the respondent is known to me by virtue of which position I am conversant with the facts herein deposed to.

2. That I know as a fact that I sued John Dawulenga junior brother to the respondent over a piece of farmland in Mushu in Mangu Local Government Area before the Area Court I Bokkos in suit No CV 32/85 and judgment was given in my favour by the said court over the said farmland.
3. That the proceedings of the said court referred to in paragraph 2 above is hereby annexed to this affidavit and marked as annexure “A”.
4. That I know as a fact that the said John Dawuleng, a junior brother to the respondent being dissatisfied with the said judgment referred to in paragraph 2 and 3 above appealed to the Customary Court of Appeal Jos and lost.
5. That record of proceedings of the Customary Court of Appeal Jos which affirmed the decision of the Area Court I Bokkos is hereby annexed to this affidavit and marked as annexure “B”.
6. That I know as a fact that the respondent Sunday Malgit is also known as Sunday Dawuleng and a senior brother of John Dawuleng whom I sued in respect of the said land in 1985 before the Area Court I Bokkos.
7. That the respondent is not only a senior brother to the said John Dawujeng, that he also testified for him in respect of this land before the Area Court I Bokkos as DW3 as contained in page 6 of annexure “A” annexed to this affidavit.
8. That I know as a fact that the respondent did not only testify for his junior brother. John Dawuleng but he also attended the court proceedings right from 9th day of February 1985 till judgment was given against him on the 17th April, 1985 and that he also attended the proceedings of the appeal filed by the junior brother before the Customary Court of Appeal Jos till the appeal was dismissed on the 12th day of September, 1985 as contained in pages 7 and 8 of annexure “B” annexed to this affidavit.
9. That I know as a fact that it is the same piece of farmland situated a Mushu which was awarded to me by the Area Court I Bookos and affirmed by the Customary Court of Appeal Jos that the respondent has again sued me.
10. That the present plaintiff/respondent not only was he aware of the last suit, he testified as DW3 as contained in page 6 of annexure “A” but he also attended all the proceedings from the Area Court I Bookos to the Customary Court of Appeal Jos.
11. That one of my counsel Ekeakhogbe Orchris (Esq.) informed me and I verily believe him that the principles of Res-Judicata operates in this case to prevent the respondent from laying fresh claim over the aforesaid farmland.
12. That the counsel further informed me of the truth of which I verily believe that the present circumstances of this case falls within the principle of Res-Judicata and so the Suit No. CV/142/90 ought not be heard again as same had earlier been determined on its merit by a court of competent jurisdiction.
13. That there has to be an end to litigation over this farmland as opposed to this continues litigation procedure, the respondent who is a blood relation of the said John Dawuleng wants to adopt.
14. That this application is made in the interest of justice and at the earliest opportunity.
15. That the respondent will not be prejudicial if this application is granted.
16. That I swear this affidavit in good faith, believing its contents to be true and correct to the best of my knowledge and information and belief and by virtue of the Oath Act, 1963.”

The Plaintiff, who was the respondent on the application did not file a counter-affidavit. The Upper Area Court heard the motion and on 27/2/91 ruled that plaintiff’s suit was caught by the doctrine of estoppel per Res Judicata. The case was dismissed. The Plaintiff brought an appeal before the Customary Court of Appeal against the order dismissing his suit. The Customary Court of Appeal on 14th November, 1991 in its judgment upheld the dismissal of plaintiff’s suit. The plaintiff was dissatisfied. He has brought a further appeal before this court on three grounds of appeal which read thus:

“(1) The judgment of the Customary Court of Appeal is against the weight of evidence.

(2) The learned justices of the Customary Court of Appeal, Jos, erred in law when it confirmed the judgment of the trial Upper Area Court, Pankshin dismissing the appellant’s claim on the erroneous belief that res judicata applied in circumstances of this case.

PARTICULARS OF ERROR

(a) The land claimed by the appellant was not customarily identified and described before the court to enable it draw the conclusion that the land claimed has been previously litigated upon by the parties.

(b) It was an error in law to have used affidavit evidence in a customary land suit of this nature where the land claimed was not identified and described to dismiss appellant’s claim.

(c) It was an error of law to apply the principles of res-judicata when the judgment, cannot be tied to a particular land but merely on the assumption that the affidavit evidence before the court was not challenged and therefore an admission of the facts deposed therein.

3. The Justices of the Customary Court of Appeal erred in law when it confirmed the decision of the trial court that did not give the appellant a fair trial in accordance with customary mode of proving his claim by oral evidence.

PARTICULARS OF ERRORS

(a) The claim before the trial court was stated to be “claim for farmland” and this is not sufficient to warrant the use of affidavit evidence to deny the appellant the opportunity to prove his claim.

(b) The claim for farmland as recorded did not indicate where the land is situate and its boundaries and the court did not inspect the land to confirm whether the new claim is same as previously tried before.