Attah Idih V. Ben Uteno (2009)

LawGlobal-Hub Lead Judgment Report

OYEBISI . F. OMOLEYE, J.C.A.

This is an appeal against the judgment of the High Court of Kogi State coram Hussaini and Ajileye JJ, sitting at Anyigha in its appellate jurisdiction over the ruling of the Upper Area Court, Anyigba in the suit in which the Plaintiff (hereinafter referred to as the Respondent) had claims follows:-

“Claim of a piece of land called Oko-Ogo at Ukpotume and restraining the defendant/appellant from further trespassing on the said land.”

The Defendant (hereinafter referred to as the Appellant) before the commencement of hearing of the said suit, filed a motion on notice seeking the striking out of the Respondent’s suit on the ground that the Upper Area Court lacked the requisite jurisdiction to adjudicate upon it.

The Appellant is claiming that the said portion of land the subject-matter of the suit tiled by the Respondent at the Upper Area Court Anyigba, had been adjudicated upon by courts of competent jurisdiction between the same parties and or their privies. Reference is made to the said suits, most especially suit Nos. 54/63 before the Kabba Provincial Court, Exh. A in pages 5 to 13, Exh. F, CV.9/90 before the Upper Area Court, Idah, in pages 52 to 58 and an alleged case No. CV. 242/93 before the Anyigba Upper Area Court. That Oko-Ogo land being claimed by the Respondent is the same land that was adjudicated upon in Exh. F at the Jdah Upper Area Court wherein the Court awarded the said land to the Appellant. The said judgment not having been appealed is validly subsisting. That the land in dispute having been previously adjudicated upon between the parties and or their respective privies, the parties herein are estopped from re-litigating it by reason of the operation of the legal doctrine of “estoppel per rem judicatam”.

Contrariwise, it is the Respondent’s case that the subject-matter of the instant case and that of the earlier cases relied upon by the Appellant are not the same. That Oka-Ogo has neither at any time been adjudicated upon nor awarded to the Appellant.

In support of the motion on notice, the Appellant filed an affidavit and attached thereto six exhibits marked A – F. The Respondent in opposing the motion filed a counter affidavit. The Upper Area Court after considering the affidavit evidence of the parties and the addresses of the counsel for the respective parties gave its ruling in which the motion of the Appellant was dismissed.

The Appellant not pleased with the ruling of the Upper Area Court filed an appeal to the High Court, Anyigba “vide” his notice of appeal contained in pages 74 to 76 of the record of appeal. After hearing the submissions of learned counsel for and against the appeal, the Anyigba High Court (hereinafter referred lo as the lower Court) on 16.10.2006 in its considered judgment dismissed same and held “inter alia” in lines 3 to 10 at page 88, lines 28 to 34 at page 89, lines 20 to 22, 33 to 38 at page 90 of the record of appeal, as follows:-

“— there is no specification about the stage in the proceedings at which the plea of res judicata can or must be raised i.e. whether as a preliminary objection or at the completion of evidence. In our humble view, therefore, everything depends on the facts and circumstances of each case. Each case, must, as of necessity, be treated on its own merit …..

On the totality of/he foregoing, we must say again, that everything depends on the stage at which res judicata was being raised, the circumstances and the facts of each case Evidence may be fully given to determine res judicata. The case may also be decided by way of preliminary objection by motion on notice…………..

While it is not totally correct to say, as the lower Court did, that evidence must be taken in the area Court to determine plea of res judicata……………

It is in the light of the above that we affirm the ruling of the Upper Area Court Anyigba in this case and direct that parties in this case should go back to the lower court to commence the hearing of the case. The court shall hear and determine the case to conclusion. Appeal dismissed. ”

The said judgment of the lower Court did not go down well with the Appellant; hence he filed this appeal to this Court against it. The notice of appeal in this respect dated 6/2/2007 contained three grounds of appeal. These are contained in pages 92 to 94 of the record of appeal. The Appellant is seeking the order of this Court setting aside the said judgment of the lower Court on the ground that the Respondent is “estopped” from commencing his said action and that the Upper Area Court has no jurisdiction to adjudicate thereupon, For ease of reference, the three grounds of appeal with their particulars are as follows:-

GROUNDS OF APPEAL