Alhaji Raimi Oloriegbe Vs J.a. Omotosho (1993)

LawGlobal-Hub Lead Judgment Report

OMO, J.S.C. 

This is an appeal by the plaintiff/appellant against the decision of the Court of Appeal (Kaduna Division) which allowed the defendant/respondent’s appeal against the ruling of the Kwara High Court in the plaintiff/appellant’s favour.

The plaintiff/appellant instituted an action (KWS/7O/l983) in which it claimed against the defendant/respondent.

“(i) an order of possession wherein the defendant is to vacate the plaintiff’s adjudged land and to remove his structure thereon, and

(ii) (for) an order of account to be taken and payment of the sum due in respect of the structure on the plaintiff’s adjudged land”.

After pleadings had been filed and exchanged, the defendant/respondent filed an application in the trial High Court for an order to dismiss the plaintiff/appellant’s action on the grounds: (a) that it is caught by the doctrine of res judicata, to wit; that the issue(s) sought to be decided had been canvassed and decided upon in a previous action between the parties; and (b) that the action is an abuse of the process of the court. The High Court dismissed this application holding that, although the claim for title and possession had been previously litigated, the court was not barred by the doctrine of res judicata from hearing the present claim because “the question of rendering an account is a completely new issue which has not been judicially decided upon”.

It relied on the decisions in Okusanya and Ors v. Akanwo and Ors (1941) W.A.C.A.1 and Bakare Ibiyemi & 3 Ors v. Lawani Olusoji and anor 1957 W.N.L.R. 25. Defendant/respondent’s second contention that the action is an abuse of process was not considered. The decision was however reversed by the Court of Appeal which held that the plaintiff/appellant’s action is caught by the plea of res judicata and the High Court therefore lacked jurisdiction to entertain the matter. In the process of coming to this decision, the Court of Appeal found that the defendant/respondent is a trespasser on the land in dispute. Dissatisfied with this ruling both parties have appealed against same to this court: the appellant against the decision of res judicata and the respondent solely against the finding that he is a trespasser.

The dispute between the parties over the piece of land situate at No. 1, Amilegbe Close, Ilorin, has had a chequered history dating back to the year 1976 when the plaintiff/appellant took his first action (case No. IAC/2/1/CU.672176) in the Ilorin Area Court Grade II No. 1, against the defendant/respondent. It is necessary to revisit the tortured career of this dispute in order to be able to understand clearly the reason/basis for the application to dismiss the present action in the High Court filed by the defendant/respondent, and to be able to arrive at a correct decision in this appeal.

The aforementioned application to dismiss is supported by an affidavit to which is annexed six court proceedings (Annexure A to F). Together they cover pages 15 to 101A of Volume I of the record or proceedings. Only the salient and relevant facts set out in these 87 pages will be summarised and adverted to herein. The plaintiff/appellant (who for the purpose of this summary will be referred to hereafter as plaintiff only) filed the original (first) action in 1976 against the defendant/respondent (called defendant only hereinafter in this summary) claiming “my land sold to me on which the defendant is building his house on the land now”. Both claimed to have purchased from Balogun Fulani and received “written document with their measurements” (my note: of the pieces of land sold to them) from the same person – one Abdulkadir Ishola – who said he used to distribute lands sold to its owners on behalf of the Balogun Fulani. The court after hearing his evidence-in-chief, proceeded to the land in dispute which it inspected in the presence of the parties, all their witness, and a surveyor. At the locus in quo, measurements were made: after which the witness Ishola (who testified as P.W.1) was asked whether from his observation on the land he could say that the portion of land all which the defendant was building belonged to him. He answered that it belonged to the plaintiff. In its judgment the court stated. inter alia. thus:

“Having heard the evidence of plaintiff and all their witnesses, The Court sees that the plaintiff and all his witnesses proved their case beyond reasonable doubt to convince this court that the land belongs to the plaintiff, the court therefore declares the land in dispute to the plaintiff because of the following reasons………..”

It proceeded thereafter to set out eight (a-h) reasons for so deciding. The record shows that it ended its judgment thus:- “Judgment:-The land in dispute declear (sic) to the plaintiff as the rightful owner.

Court Order:- The Court hereby order the defendant to demolish his building and to remove all his properties on the land within 30 days.

Right of Appeal:- Any aggrieved party may appeal to Upper Area Court within 30 days (vide pages 49 to 52 of the record of proceedings – (Vol. 1).

The defendant exercised his right of appeal to the Upper Area Court, Ilorin, Which affirmed the declaration of title in favour of the plaintiff but quashed the order for demolition of all the properties of the defendant on the land because that order is, “outside” the plaintiffs action. (vide page 63 of record of proceedings – Volume 1).

The plaintiff then proceeded to file another action against the defendant in the same Ilorin Upper Area Court seeking an order of that court that the defendant “should remove his house from my land”. That court, because of its “familiarity with a previous appeal case between the parties”, decided to transfer the case to Lokoja Upper Area Court, where it was heard and determined in favour of the plaintiff. The court ordered thus:-

“The possession of the piece of land on which the defendant’s house in dispute stands is awarded to the plaintiff. The defendant is ordered to remove his house from the plaintiff’s land not later than 26/6/81.”

The defendant again appealed successfully against this judgment to the High Court Ilorin which quashed the Lokoja Upper Area Court judgment on the ground that it was incompetent to give a judgment which had the effect of setting aside the previous judgment of a court of concurrent jurisdiction – the Ilorin Upper Area Court. The plaintiff appealed against this decision to the Federal Court of Appeal (as it was then called) in June 1981 (Annexure D at pages 84/5 of the record, of proceedings. Vol.1 refers). In his brief in this court, the plaintiff has stated that he “appealed unsuccessfully against the appellate decision of the High Court to the Federal Court of Appeal”. The defendant, on the other hand, stated in his brief that this appeal of the plaintiff “has never been heard or determined” (para. 2.14 of respondent’s brief at page 4 thereof refers). A close study of Annexures D, E & F attached to defendant’s affidavit in support of the dismissal motion in the present appeal shows that the defendant’s submission, to wit, that the appeal against the judgment of the Ilorin High Court has not been heard or determined is correct. What the plaintiff did as shown by Annexures E and F is to seek extension of time to appeal against the first judgment of the llorin Upper Area Court in 1977, which was refused both by the High Court and the Court of Appeal. It is difficult to understand why the plaintiff embarked on such a fruitless exercise instead of pursuing the substantive appeal against the High Court judgment which he had filed.

Four months after his appeal to the Court of Appeal had been dismissed, the plaintiff filed the present action now on appeal, particulars of which have been set out earlier. The Court of Appeal having allowed the appeal of the defendant/respondent (herein after referred to as the respondent only), the plaintiff/appellant referred to as appellant simpliciter hereafter), has appealed to this court on one ground of appeal only, set out as follows:-

“The learned Justices of the Court of Appeal erred in law in holding that the new suit was caught by the doctrine of res judicata. Particulars of Error-in-law

(i) The doctrine can only apply where the new relief arose at the time the original suit was filed in the court of first instance.

(ii) The doctrine can only apply where the injury or damage continued and has not abated.”

The respondent filed a notice dated 20/7/88 of his intention to contend that the decision of the court below be varied (Order 8 Rule 3 of the1985 Rules of the Supreme Court refers), seeking an order of this court “quashing that part of the judgment which held that the respondent herein is a trespasser and that he committed contempt of court by flouting the court’s orders”. Ten grounds were given for seeking this variation, prominent among which are the following:-

“7. The two decisions (i.e. that of the Area Court Grade II No. I Ilorin and that of the Lokoja Upper Area Court) which gave the appellant herein possession of the land have been quashed.

8. There is therefore no valid court decision awarding the possession of the land to the plaintiff. The finding of the Court of Appeal. Kaduna that the defendant flouted all courts’ orders declaring him a trespasser is not supported by the facts of the case. The defendant never flouted any court’s order.
9. The Defendant is not a trespasser because the disputed land is not in the plaintiffs possession. It is because the land is not in his possession that he instituted the suit in the Lokoja Upper Area Court and in the Ilorin High Court (which is the subject of this appeal) claiming possession from the defendant. Trespass is not founded on ownership which was awarded to the plaintiff but on possession which was never validly awarded to him.
10. The question of whether or not the defendant is a trespasser was not an issue before the Court of Appeal, Kaduna, neither were counsel given an opportunity to address the court on the issue before the court made its erroneous decision that the defendant is a trespasser.”

Two issues for determination were set out in his brief by the appellant thus:-

“1. Does the doctrine of res judicata apply where the new claim does not exist at the time the; original suit was filed

2. Does the doctrine of res judicata apply where the original cause of action continues unabated and the injury/damage continues and has not abated.”

The respondent in his brief also set out two issues for determination which read thus:-

“3.1 Was the plaintiff right in circumventing the rule of res judicata by relitigating the issue of possession already decided in previous judgments by adding a new relief i.e. damages for a house which was erected when the previous cases were tried.

3.2 Was the Court of Appeal right in holding that the defendant is a trespasser whereas all the court’s decisions that he should vacate the land and deliver possession to the plaintiff have been quashed I propose to determine this appeal primarily on the basis of the appellant’s formulation of issues, but will deal with so much of the respondent’s as is relevant.”

The foundation of our law of estoppel per judicatam is set out in sections 53 and 54 of the Evidence Act as follows:-

“53. Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the court, and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.

54(1) If a judgment is not pleaded by way of estoppel it is between parties and privies deemed to be a relevant fact, whenever any matter, which was, or might have been, decided in the action in which it was given, is in issue, or is deemed to be relevant to the issue, in any subsequent proceeding.

(2) Such a judgment is conclusive proof of the facts which it decides, or might have decided, if the party who gives evidence of it had no opportunity of pleading it as an estoppel.”

It is trite that before this doctrine can operate, the parties, issues, and subject matter, must be the same in the previous case as those in the action in which the plea of res judicata is raised vide Ihenacho Nwaneri & Ors v. N. Oriuwa & Ors (1959) 4 F.S.C. 132, (1959) SCNLR 316; Kalu Njoku and Ors v. Ukwu Eme & Ors (1973) 5 S.C. 293 (304, 305); Okpuruwa v. Okpokam (1988) 4 NWLR (Pt.90) 554. In the instant case it is agreed by all that the parties are the same and so also is the subject matter – No. 1, Amilegbe Close, Ilorin. But are the issues the same

The issues before the Ilorin High Court for plaintiff’s determination, as set out in plaintiff’s writ of summons are:-

(i) an order for possession of land in dispute and removal of defendant’s structure thereon.

(ii) an account to be taken, and sum due to the plaintiff paid to him. Although appellant’s counsel had in the High Court submitted that he is claiming “two remedies which are different and distinct from the ones previously litigated, upon”. the High Court did find that the various courts which had dealt with this dispute had dealt with issues of title and possession. It then proceeded to consider the second issue of “rendering an account” which it held was a completely new issue, because of which the plea of res judicata must fail.

On appeal to this Court the ground of appeal filed by the appellant and the issues for determination raised by him, do not deal with the first issue of possession. It was also not canvassed in his brief. I will therefore confine my consideration on identity of issues to the second issue (head of claim) raised on the writ of summons. The Court of Appeal came to the decision that the doctrine of res judicata is applicable to this second issue because firstly, it is a claim for mesne (intermediate) profits, being rents collected on land adjudged to belong to the appellant. This it held cannot be claimed by the appellant as “an ancillary remedy to the order of possession already granted” because there is no relationship of landlord and tenant between the appellant and the respondent. Secondly, that the proper remedy the appellant should have sought is damages for trespass “as an additional remedy against the defendant, in the court of first instance, that is, at the Area Court Grade II Ilorin”.

Thirdly, that the appellant through his “inadvertence or negligence” has failed to put forward every subject of his case particularly damages for trespass.” In his brief, the appellant submitted that res judicata does not apply to this second issue (claim), on which this fresh suit is based, because the cause of action did not arise when the original suit was filed. At that time (in 1976), the only cause of action which existed, and which was canvassed in the Area Court Grade II Ilorin was for “declaration of title”, The house to which the present claim refers had not been completed when the suit began, let alone its being occupied by tenants (to be able to attract rents). The doctrine of res judicata he also submitted cannot apply to a continuing trespass, this cannot shut out a subsequent and similar action where the trespass has not abated. “It is both good law and good sense” he further submitted, that a land-owner (the appellant) should be able to bring a fresh suit to seek redress for all collections from the trespasser’s tenants which have arisen after the original suit. No legal authority was cited in support of this “good law”.

The respondent, in his brief, considered at some length the first issue of possession and sought to show that it had been finally decided in favour of the respondent and against the appellant. In view of my earlier remarks, I will neither set out nor consider his submissions on the issue of possession. It is enough to observe that the decision of the Ilorin Upper Area Court on the question of demolishing of the offending structure on the land in dispute was not on the merits. The order to demolish was quashed on the rather “technical” ground that it was not claimed by the plaintiff. The effect of the subsequent decision of the Ilorin High Court can be best determined against that background. I will say no more on this since there would appear to be an appeal against it, flied in the Court of Appeal since 1981, which respondent’s counsel has stated to be still pending. On the second and relevant issue, respondent agreed with the decision of the Court of Appeal that the appellant could not ask for rent/mesne profits from the defendant, because there is no relationship of landlord and tenant between them.

The only remedy open to the appellant he submitted is for damages for trespass when he took his first action in 1976 and having failed to do so, he is shut out from so doing, because it is an issue that he has failed to litigate or canvass either through “negligence or calculation” and cannot therefore re-open in a subsequent litigation vide Ngwo v. Monye(1970) 1 All NLR 91 (97/8); Savage v. Uwechie (1972) 3 S.C. 214 (222/3). He also cannot be permitted to split his causes of action and litigate them one by one vide Standard Bank of Nigeria Ltd v. Chief F.M. lkomi (1972) 2 S.C. 164 (178). In coming to the conclusion that the second issue (claim) cannot be canvassed or indeed put forward because there is no relationship of landlord and tenant between the parties, the Court of Appeal was adjudicating on the merits of the issue (claim). This is not what it is called upon to do in deciding whether it is a fresh issue which has not already been finally determined in the previous decisions relied upon in support of a plea of res judicata, or an old issue firmly laid to rest the relitigation of which is excluded by that doctrine.

The appellant’s submissions that the claim on which the present suit is based did not arise in 1976 appears to be well-taken. Whatever may be the exact nature of his claim (I will comment on that later), it is (as set out) (i) asking for an account (ii) payment of sum due, presumably after taking the account (iii) in respect of defendant’s building on plaintiff’s land (iv) which building has been let to tenants (v) without permission or consent of the plaintiff. As at the time the 1st action was taken by the plaintiff in 1976, it is true as appellant has submitted, that there were no tenants on the land, because the building in which they were subsequently let in was not yet completed. This submission is fully supported by the evidence led in the 1976 case reproduced at pages 23 to 52 of volume 1 of the record of proceedings (see particularly pages 23, 28 & 30). Apart from challenging this statement as false, respondent’s counsel has not sought to disprove same. This issue therefore cannot ex facie be said to have been canvassed in 1976 or thereafter. It can only be caught by the doctrine of res judicata on the ground that it is a claim which should have been put forward when the claims for declaration of title and possession were filed.

Failure to do so can therefore be held to arise out of “inadvertence or negligence”, or even accident; and the present action therefore be adjudged caught by the plea of res Judicata vide Dzungwe v. Gbishe & or. (1985) 2 NWLR (Pt.8) 528 (537(8), where the observation of Wigram V.C. in Henderson v. Henderson (1843) 3 Hare 114 reported in 67 E.R. 313 at p.319 is cited and relied upon. It reads thus: “I believe I state the rule of the court correctly when I say that where a given matter becomes the subject of litigation on, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases not only on the points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.” (Note: italics mine)

Is the present action for an account one “which might have been brought forward in the previous action(s) but was not brought forward only because” the appellant has out of “negligence, inadvertence, or even accident, omitted part of his case’” The answer must be in the negative once it has been established that the cause of action did not arise before the previous action(s) relied on to constitute res judicata. What is more, a claim for an account is based on a continuing receipt of rent from tenants, which cannot be held to have ended until the respondent ceases to collect same. It is therefore difficult to see how it can be the subject-matter of a plea of res judicata, unless the period for which the account is sought is limited to the exact period when the earlier actions were filed in court. The conclusion to which I have therefore arrived is that the second issue (claim) is an entirely new issue (claim) which has not been previously canvassed. It cannot therefore be caught by respondent’s plea of res judicata, which must therefore fail. The answer to appellant’s issues for determination must therefore be in the negative. The judgment of the Court of Appeal to the contrary is therefore hereby set aside.

Before I proceed to consider the complaint of the respondent that he has been wrongly found to be a trespasser, I must comment briefly on another reason why it must be premature to hold that the doctrine of res judicata applies, and that the jurisdiction of the court to hear the action on its merits had been ousted. This relates to the exact nature of this second claim. Is it purely a claim for an account of rents collected from tenants by the respondent or is it in effect seeking damages for the building on the land (regarded as an act of trespass by the appellant) to be assessed in the basis on the account taken This in my view needs to be clarified. A finding that res judicata applies cannot possibly be grounded on any uncertainty, no matter how slight. To succeed on this plea all the evidence required must be unequivocal and certain. To the respondent’s complaint, the appellant has raised an objection albeit rather tentative, to wit, that it should have been by way of a cross-appeal and not merely by way of notice to vary under Order 8 Rule 3 of the Supreme Court Rules. 1985. The finding which the respondent is complaining of was made in the lead judgment (Ogundere, J.C.A.) of the Court below and arrived at thus:- “With the greatest respect to all the courts which have had anything to do with this case, the decision of the original Area Court of trial is commendable, clear and unambiguous. The defendant was in effect declared a trespasser, and as an act of grace he was ordered to demolish his building and to remove all his property from the plaintiff’s land, otherwise the maxim quicquid plantatur solo-solo cedit would have applied so that the plaintiff would recover possession of his land together with the building planted on it, as his own. It was contempt of court of the highest order that the defendant, now appellant, by ruses and subterfuge, flouted with unabashed effrontery and impunity the Courts order”. (Note: Italics mine) In answer to the appellant’s objection, the respondent has replied that he did not cross-appeal because the finding complained of is not “fundamental and crucial to the respondent’s case”. Furthermore, that the pronouncement is “besides the issue” and what is required is to ask the court to vary same. Although the finding may not be perceived by respondent as “fundamental and/or crucial” to his case, it is a weighty finding which must be seen by the respondent as portraying him in a bad light, hence he wants it “set aside”. For this court to be able to do so, there must be a cross-appeal filed against it because the decision of the court below is being attacked. A variation can only be made on the basis that all the findings are correct but the judgment can and should be varied without detracting from any of those findings, sometimes in order to properly bring out some aspect of the court’s decision which have been overlooked.

A respondent who seeks a reversal of an adverse finding can only do so by way of a notice of appeal/cross appeal and not by a respondent’s notice vide Western Steel Workers & or Iron and Steel Workers & or. (1987) 1 NWLR (Pt.49) 284. No such cross-appeal having been filed, I agree with appellant’s counsel that the complaint cannot been entertained. In the alternative and on the merits, it is not entirely correct that the issue was not before the court. The appellant (then respondent) raised it in paragraph 4.1.3 and, sub-paragraph (iii) of his conclusions/summary at pages 170 and 171 of the record of proceedings volume II. Whether the finding was necessary for arriving at the final decision in the appeal before the court below is however another matter. The ambivalent attitude of the respondent to his complaint is another reason why the order sought must be refused. According to him the variation sought is only “for the purpose of convenience”. It is therefore not a serious complaint and should not be entertained. Far from criticising the learned appellate Justice. I entirely agree with his perception of the legal position between the parties. It is to be hoped that at the end of the hearing in the Ilorin High Court or before then, the respondent will take necessary steps to comply with the implications of the declaration of title lathe land in dispute, which the appellant obtained in 1976. To summarise, the appeal is allowed. The judgment of the court below is set aside. In its place, I hereby order that the case be sent back to the High Court Ilorin for prompt hearing and a decision on the merits of the claim before it. The appellant is entitled the costs of the hearing in the court below and in this Court which I assess at N300 and N1, 000 respectively.

UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother Uche Omo, J.S.C .. I agree that the appeal has merit and that it should be allowed. I only wish to add that this court suo motu raised the question whether the High Court that set-aside the decision of the Upper Area Court, Lokoja was properly constituted in view of the provisions of section 238 of the 1979 Constitution. The question became pertinent because the issue of res judicata which was raised in the Court of Appeal and before us will fall or stand on the important question whether the judgment of the High Court as constituted by Kawu, CJ, Salami J and Abdullahi, Kadi (as they all were then) on the appeal from the Upper Area Court, Lokoja, was a valid judgment. Both learned counsel for the G parties have submitted, even though with much reluctance on the part of Mr. Oshe, that the High Court was improperly constituted due to the presence of a Kadi of the Shari a Court of Appeal who was not a Judge of the High Court. I do not wish to say more on the point other than to adopt the judgment of my learned brother Ogundare, J.S.C. in that respect. Accordingly, I allow the appeal and set aside the judgment of the Court of Appeal. I abide by the orders contained in the judgment of my learned brother Uche Omo. J.S.C.

OLATAWURA, J.S.C.: I had a preview of the judgment of my learned brother Uche Orno. J.S.C. I will also allow the appeal and send the case back to the High Court of Kwara State to be heard on its merits. I wish to add some points. It is important to bear in mind that the case which is on appeal to this court originated from an Area Court which by its composition is similar to a Native Court. It is for this reason that both the Area Court and the Native Court now popularly called Customary Court that one looks into the substance and not the form: MATE NONO PER TETTER OKUMA V. TSUTSU: 10 WACA. 89. In the Area Court Grade II Ilorin the appellant before us slated categorically the claim to wit: “I wish to claim my land sold to me of which the defendant is building his house on the land” After listening to the evidence by both parties and a visit to the locus in quo by the Area Court; the Court adjudged as follows: “The land in dispute declare (sic) lathe plaintiff as the rightful owner (sic). The court hereby order (sic) the defendant to demolish his, building and to remove all his properties on the land within 30days. ‘ It is the order of the Court i.e. demolition of the building and removal of his properties by the defendant that has led to appeals and another action. The judgment of the Area Court II Ilorin except the demolition order was confirmed by the Upper Area Court. A bewildered and frustrated plaintiff who was stunned by the refusal of the defendant to obey the court’s order filed another action in the Upper Area Court Lokoja seeking an order “to force the defendant to remove his building on the plaintiff’s land” on the ground that the court (Area Court II Ilorin) has awarded him title in respect of the land. The court i.e. Upper Area Court Lokoja found for the plaintiff in these words:

“we give judgment for the plaintiff and in our judgment we order that the defendant should vacate the land by removing his house therefrom for use by the plaintiff not later than 26/6/81. ORDER: The possession of the land on which the defendant’s house in dispute stands is awarded to the plaintiff. The defendant is ordered to remove his house from the plaintiffs land not later than 26/6/81.”

The defendant then appealed to the High Court of Justice, Kwara State sitting in Ilorin. High Court of Justice Ilorin allowed the appeal against the order of demolition made by the Upper Area Court Lokoja in these words:

“The Appeal is therefore allowed and the decision of the Lokoja Upper Area Court ordering the demolition of the appellant’s building is set aside.”

There was an appeal to the Court of Appeal Kaduna Division. Another action filed by the plaintiff came before Ibiwoye J (as he then was).It was in respect of the same matter i.e. the land and the building on the land. In that Court another claim was added to the claims. The claims before him were for: (a) an order for possession (b) an account stated for rent collected by the plaintiff on the land adjudged to be the plaintiff’s land. A preliminary objection raised by the defendant on a plea of res judicata was dismissed. The defendant sought and obtained leave of the High Court of appeal to the Court of Appeal against that ruling. The appeal was allowed and the plea was sustained. In its unanimous decision the Court of Appeal coram: Aikawa, Ogundere and Achike, J.C.A. allowed the appeal.

Ogundere, J.C.A. in his lead judgment said:

“The plea of res judicata succeeds so does the appeal. The High Court of Kwara State in its appellate jurisdiction lacked jurisdiction to entertain the matter The appeal is accordingly allowed.”

The appellant has now appealed to this Court on one ground of appeal which without the particular reads:

“The learned Justices of the Court of Appeal erred in law in holding that the new suit was caught by the doctrine of res judicata.”

The respondent has filed a Notice under Order 8 rule 3 of the Rules of the Supreme Court of notice of contention that the judgment should be varied on other grounds. This rule though in existence at the time the appeal was filed has now been deleted by Government Notice 111/1991 with effect from 1st October, 1991. I will come to this later. Nothing much was urged in the oral submission by both counsel except to emphasise that title which was challenged by the respondent was refused in all the courts. It is now the issue of res judicata that is now the bone of contention in this appeal. Since the jurisdiction of the High Court with regard to the composition of members of that court was raised by us, we called on both counsel to address us. Under section 238 of the 1979 Constitution of the Federal Republic of Nigeria a High Court of a State shall be duly constituted if it consists of at least one Judge of that court. Mr. Ijaodola readily submitted that since the panel that heard the appeal from the judgment of Lokoja Upper Area Court was not properly constituted the decision of the High Court was a nullity. The Judges that heard the appeal were Saidu Kawu C.J. (as he then was) I.A. Salami, J. (as he then was) and Kadi Alhaji U.I Abdullahi: Kadi Sharia Court. It was not without some hesitation that Chief Oshe agreed that the judgment Exhibit C is a nullity and that the proper order is a retrial by the High Court; this is in so far as Exhibit C is concerned: That court was incompetent because it was improperly constituted, Kadi Alhaji Abdullahi was not qualified to sit: Madukolu v. Nkemdilim (1962) 1 AII NLR 587, (1962) 2 SCNLR 341. A judgment given without jurisdiction is a nullity Umenwuwaku v. Ezeana (1972) 5 S.C. 543. It is the ruling of Ibiwoye J. that went on appeal to the Court of Appeal Kaduna and which ruling was set aside on the ground that the action before the High Court was caught by a plea of res judicata raised by the present respondent. The Court of Appeal rightly traced the history of the case before the various courts.

The lower Court per Ogundere, J .C.A. said:

“With the greatest respect to all the courts which have had anything to do with this case, the decision of the original Area Court of trial is commendable, dear and unambiguous. The defendant was in effect declared a trespasser, and as an act of grace he was ordered to demolish his building and to remove all his property from the plaintiff’s land, otherwise the maxim quicquid plantatur solo-solo cedit would have applied so that the plaintiff would recover possession of his land together with the building planted on it, as his own . The appellant is therefore a trespasser and he should cease to be one.”

The lower Court was then of the view that the ancillary relief of rent or statement of account was wrongly decided. I do not wish to go into the merits of the conclusion reached in view of the passage quoted above and the relief sought by the appellant that the case be remitted to the High Court to be heard on its merits. Ibiwoye I rightly came to this conclusion in his ruling when he said:

“The question of rendering an account is a completely new issue which has not been judicially decided upon and therefore the doctrine of res judicata is inapplicable in this case.”

If one looks at the claims before the two Area Court they are in substance for title to the land in dispute and possession of the land. If the lower Court has come to the conclusion that the maxim quicquid plantatur solo-so/a cedit applies, I cannot see how the issue of account which was raised for the first time could be said to have been caught by the plea of res judicata. The respondent has filed a respondent’s notice to vary the judgment of the lower court. The reasons given are good grounds for across-appeal.

The difference between a respondents notice (where it applies) and across-appeal was succinctly stated by this Court in Ogunlade v. Adeleye (1992) 8 NWLR (Pt.260) 409. On the whole I will allow the appeal, set aside the judgment of the Court of Appeal dated 21st April, 1988, the case is remitted back to the High Court of Justice Kwara State to be heard on its merits. I will abide by the order for costs in the lead judgment.

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Other Citation: (1993) LCN/2590(SC)