Alhaji Usman Magaji V. Maidorowa Matari (2000)

LAWGLOBAL HUB Lead Judgment Report

B. WALI, J.S.C.

Following the order for a retrial made by the Sharia Court of Appeal Bauchi in 1986, the plaintiff Maidorowa Matari lodged the following complaint in the Nabardo Area Court against the defendant Alhaji Usman Magaji –

“I sued (sic) the defendant about the farm land I inherited from my late father (called Zaranda), which the defendant took to use with the assertion that it is his own. And this is land that has been cultivated long ago by my parents, then how could the defendant a stranger as he is could claim its ownership just of a sudden”

The defendant Alhaji Usman Magaji denied the plaintiff’s claim with the assertion that he inherited the farmland in dispute from his father, Magaji.

The learned trial Judge after hearing evidence called by the plaintiff and the defendant in proof of their respective claims, visited the farmland in dispute in company of the parties and their witnesses and decided as follows:-

“In my opinion since the plaintiff was able to produced five tentative male witnesses who confirmed it before this court that the disputed property (farm land) is his father’s own and that the defendant’s father only possessed it by way of manipulation (Hauzi). This court hold the view that whenever there is ownership, possession will have no position in sharia, no matter whatever longer period stood. Therefore considering all the facts stated above I hereby confirmed the subject matter of this case (farm land) to the plaintiff since it was known to be his late father’s property. This is in accordance with Tuhfa vol. 11 page 172.”

Dissatisfied with the trial court’s judgment, the defendant Alhaji Usman Magaji appealed to the Upper Area court Toro which allowed the appeal on ground that the same case was litigated upon between one Mangai (described as senior brother to the plaintiff) and Alhaji Usman Magaji, the defendant, in CVA/215/72 of 25/2/72 wherein the Upper Area Court Bauchi affirmed the decision of Nabardo Area Court in Suit No. 345/70 in favour of the defendant. The Toro Upper Area Court therefore struck out the case.

Aggrieved by the decision and order of the Upper Area Court Toro, the plaintiff appealed to the Sharia Court of Appeal, Bauchi which unanimously dismissed the appeal and affirmed the judgment of Toro Upper Area Court, opining as follows:-

“……………. in our opinion the two complainants Mangai and Maidorowa the appellant in this case are just like a single person as regard to this matter. As such all they can do is to appeal against the decision of UAC Bauchi on its case No. CVA/215/72 of 25/2/72 which was an appeal the court heard against the decision of Nabardo A/C. This is because, that judgment delivered by UAC Bauchi is still effective.”

The plaintiff then appealed to the Court of Appeal, Jos Division. The Court of Appeal in its unanimous judgment came to the conclusion that both the Upper Area Court Bauchi and the Sharia Court of Appeal, Bauchi were wrong in their conclusions that the judgment of Nabardo Area Court in Suit No. 345/70 between Mangai v. Usman Magaji which was subsequently affirmed by the Upper Area Court Bauchi and the Sharia Court of Appeal Bauchi respectively operate as res judicata against the plaintiff. The Court of Appeal also came to the conclusion that the decision of Nabardo Area Court in which it granted the farmland in dispute to the plaintiff is correct and it was restored.

The defendant Alhaji Usman Magaji has now appealed to this court.

Learned counsel representing respective parties filed and exchanged briefs of argument. Henceforth the plaintiff and the defendant will be referred to in this judgment as respondent and appellant respectively.

The appellant in his brief formulated 7 issues for determination by this court, to wit-

“1. Whether or not the Court of Appeal was wrong in holding that the defence of res judicata cannot avail the Appellant / Defendant herein