Akpan Sunday Udo & Anor V. Monday Isaiah Akpan & Anor (2009)

LawGlobal-Hub Lead Judgment Report

JAFARU MIKA’ILU, J.C.A.

In this matter the respondents as plaintiffs sued the appellants at the District Court of Ukpam Okon in Ikot Abasi for a declaration of customary right of occupancy over one parcel of land known and called “Ekpene Essien” situate at Afan Idim Ndon in Ikot Udo Mban village of Okon town in suit No 60/85. The majority decision was in favour of the defendants against the plaintiffs. The plaintiffs appealed to the Magistrate’s Court Ikot Abasi which appeal was struck-out. On appeal to the High Court the matter was sent back to the Magistrate’s Court again. The Magistrate’s Court set aside the majority decision of the District Court and affirmed the minority decision in favour of the plaintiffs. The same plaintiffs went to High Court, Ikot Abasi and sued the same set of defendants for a declaration for a Customary right of occupancy for the same parcel of land – “Ekpene Essien” situate at Atan Idim Ndon in Ikot Udo Mbon in Okon town in suit No HAB/7/93. The High Court declined jurisdiction following the decision in ONYENIRAN VS. EGBETOLA case and transferred the case to the District Court which began hearing the matter whereas the defendants raised a plea of res judicata as the court had heard and decided the said case involving the same parties, the same subject matter and the same issue in suit No. 60/85. The plea was ignored by the Court. The defendants ceased further appearance but the said court went ahead and decided the case in suit 39/98 in favour of the plaintiffs/respondents. The defendants appealed against the subsequent decision of the district Court to the Magistrates Court.

They further appealed to the High Court and now to this court. Before this court briefs of argument have been filed and exchanged. In the appellants’ brief of argument the following issues have been formulated for determination:-

(1) What is the effect of the plea of res-judicata in respect of suit 39/98 when suit No 60/85 decided on 22/5/86 had settled the issue between the same parties on the same subject matter?

(ii) What is the effect of setting aside the majority judgment and affirming a minority judgment of the lower court by the superior court? Does not the minority judgment so restored having a binding effect on the parties capable of operating as a record estopped between the parties? Or, does such decision by a superior court pave way for a fresh litigation by the same parties in the same subject matter/or issue as opined by Justice Esang in his decision?

(iii) Was the learned Judge of the High Court of Ikot Abasi right to say that as the judgment of the senior Magistrate of 28/11/98 had not been appealed against by the defendants/appellants (sic).

(iv) Does not the decision of the Supreme Court of Nigeria bind the lower Courts until it was overruled itself? Or, was not the High Court Judge then presiding right to decline jurisdiction to entertain suit Number HAB/7/93 involving the land in the rural district then bearing in mind that the decision of the Supreme Court must be followed.

(v) If the answer is as the affirmative was the subsequent transfer of the Suit No. HAB/7/93 to the district Court of Ukpam Okon not a nullity, void and of no effect as the order was made then without jurisdiction?

(vi) Was the district Court of Okon right to hear and determine Suit No. 39/98 having previously sat in Suit 60/85 involving the same set of parties on the same land and the same issue?

(vii) Did the district Court of Ukpan Okon by suiting and deciding Suit No. 39/98 and thus overruling its previous judgment not do so as an appellate court in its own cause and without jurisdiction?

(viii) What was the effect of the latter judgment of the District Court of Ukpam Okon on the learned Magistrate’s judgment of 28/11/98 that set aside the majority decision in suit No. 60/85 restoring the minority decision of the lower Court?

On the other hand, in the respondents’ brief of argument two issues have been formulated for determination. They read:-

1. Whether the learned Judge was not right in dismissing the appeal from Magistrate’s Court on ground that res-judicata did not apply.

2. ON JURISDICTION: Whether the lower Court was not right in holding that” ONYENIRAN VS. EGBETOLA (1997) 5 NWLR (PT 504) 122 had been overruled and departed from as it was given without regard to section 236(1) of the 1979 constitution”