Alhaji Oloyede Ishola V. Memuda Ajiboye (1997)

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MUHAMMAD, J.C.A.

This appeal had a chequered history. It had its vicissitudes. It was first instituted in Area Court Grade I, Ajasa – Ipo Kwara State. There was an appeal from that court to Upper Area Court No. 1 Ilorin, and then to High Court of Kwara State holden at Ilorin. The High Court ordered a retrial before the Upper Area Court No.2, Ilorin. Following an application by one of the parties, the High Court varied the order of retrial and ordered that the retrial be heard by the Upper Area Court, Omu-Aran. After a decision by the Upper Area Court Omu-Aran, there was an appeal to the High Court, Ilorin and further the Court of Appeal Kaduna Division and lastly to the Supreme Court.

Brief facts of this appeal reveal that at the Upper Area Court Omu-Aran, on the 17th of December, 1985, the plaintiff as respondent herein, claimed ownership of a parcel of land of about eight square kilometres situate at Oke Maro, Amoyo for and on behalf of himself and Abidoye family of Oke Maro. The appellant was the defendant. Each side relied on history, traditional evidence and acts of possession. The parties called witnesses. The Upper Area Court conducted a visit to locus-inquo of the land in dispute. Finally, after reviewing the evidence available before it, it dismissed the respondent’s claim.

Aggrieved by that decision, the respondent appealed to the Omu-Aran High Court (sitting in its appellate session) on only the omnibus ground. The High Court (now the lower court) after reviewing the proceedings of the Omu-Aran Upper Area Court (the trial court) reversed the decision of the trial court and awarded the disputed land to the respondent. Dissatisfied, the appellant sought and had leave of this court granted on 19th day of January, 1995, to appeal against the decision of the lower court. The appellant set out seven grounds of appeal in his Notice of Appeal. He sought by way of relief that this court should dismiss the claim of the respondent to the disputed land and grant him ownership of the said land.

In compliance with the rules of this court the appellant filed and served his brief of argument in time. The respondent by leave of court, granted on 30/1/96, filed and served his brief of argument out of time. The brief of the respondent contained a Notice of respondent’s intention to rely upon preliminary objection. He argued the grounds upon which he based the preliminary objection, in the brief. By way of a reply brief, the appellant responded to the preliminary objection raised.

I shall deal with the preliminary objection firstly.

The main grouse of the preliminary objection is that the appellant’s appeal before this court is incompetent on the ground that:-

(i) This court lacks jurisdiction to determine same in the light of the judgment of the Supreme Court in suit No. SC/281/1990 delivered on 1st day of July, 1994 and reported in (1994) 7-8 SCNJ (Pt. 1) 1-118 between the parties hereto and in respect of the same subject matter.

(ii) Ground 1 of the grounds of appeal is incompetent, in that it violates the decision in Idika v. Erisi (1988) 5 SCNJ 208; (1988) 2 NWLR (Pt. 78) 563.

It was learned counsel for the respondent’s submission that this court lacks jurisdiction to determine the present appeal because the same court, on the 28th day of June, 1989, delivered a Judgment on appeal No. CA/K/156/87 which was between same parties and subject matter and it ordered the non suit of the parties. This decision was appealed against by both parties to the Supreme Court. It was learned counsel’s contention that this court determined the said appeal on its merits and where the court has so decided a matter, it cannot sit on appeal on its own judgment except for effecting clerical correction under the slip rule. He further argued that the Supreme Court did not order for the retrial of the case. As same issues were earlier on argued by same party, allowing the appellant to re-argue same will tantamount to having a second bite at the cherry. Thus, this appeal, he submitted further is caught up by the doctrine of res-judicata. He supported his submission with among others, the cases of Yusuf v. Co-operative Bank Ltd (1994) 7 NWLR (Pt.359) 676; (1994) 9 SCNJ 67 at 77; Oyeyipo v. Oyinloye (1987) 2 SCNJ 52 at 61; (1987) 1 NWLR (Pt.50) 356. On the 2nd ground, learned counsel for the respondent submitted that grounds of appeal are formulated based essentially on the findings of a lower court and not, from the decision of a court. He cited the case of Idika v. Erisi (1988) 5 SCNJ 208; (1988) 2 NWLR (Pt 78) 563.

Learned counsel for the appellant argued that the Court of Appeal has jurisdiction to hear the appeal as the Supreme Court’s decision in suit No. 281/1990 did not determine the rights of the parties in dispute nor did it consider on merit issues submitted by the parties to the court in the suit. He argued that the appellant had a right to present his case for adjudication by the court. Learned counsel relied on the cases of: Omonuwa v. Oshodin & another (1985) 2 NWLR (Pt. 10) 924; (1985) 2SC 1; Akinsanya v. UBA Ltd. (1986) 4 NWLR (Pt.35) 273. On the incompetence of the ground of appeal, learned counsel submitted and relied on the case of Emmanuel Nwobosi v. African Continental Bank Ltd. (1995) 6 NWLR (Pt.404) 658; (1995) 7 SCNJ 92, as an additional authority.

The well settled principle of the law for a respondent who raised preliminary objection principally premised on the operation of the doctrine of res-judicata to succeed, such a respondent must satisfy the court that:-

(i) The parties to the proceedings both previous and present must be the same.

(ii) The subject matter litigated upon and issues arising therefrom must he the same in the previous and present proceedings.