Bulama Dungus V. Kellu Mbudiye & Anor (2004)

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IKECHI FRANCIS OGBUAGU, J.C.A.

This is an appeal against the decision of the Borno State High Court sitting in its appellate jurisdiction pursuant to the leave granted by this court on 2nd October, 2000.

From the judgment of the High Court, it is clear that the parties and their privies, had litigated over land/village in the Area and Upper Area Courts before the High Court appeal.

The case started in Gulumba Area Court and the parties were Dungus Khurso v. Bulama Hassan (both of Mashamish). The judgment was in favour of the defendant. The plaintiff – Dungu’s appeal to the Upper Area Court was successful. The said court, ordered a retrial of the case before Bama Area Court II which after the retrial, also gave judgment in favour of the defendant- Hassan.

On 7th January, 1997, the appellant sued the 1st respondent at the Bama Area Court 1, but lost the case. He appealed to the Upper Area Court on 15th May, 1997 and his appeal, was successful. At the Upper Area Court, Abani Mbudiye was joined as a co-appellant. Dissatisfied with the said decision, the respondents appealed to the High Court which allowed the appeal and set aside the decisions of the Bama Area Court 1 in suit No. CVC/M2/97 and that of the Upper Area Court in suit No. CVA/9/97 declaring the said decisions, as nullities. The High Court upheld the decision of the Bama Area Court II which it stated, was the only valid and subsisting judgment.

It is against the judgment of the High Court (hereinafter called ‘the lower court’) that the appellant has appealed to this court on four (4) grounds of appeal.

It need be noted that in the lower court, the respondents raised and canvassed the plea or issue of estoppel per res judicata in respect of the suits between the parties.

The grounds of appeal read as follows:-
“(1) The Borno State High Court sitting in its appellate jurisdiction erred in law when it entertained and declared suit numbered CVC/M2/97 which is a decision of an Area Court and declared same a nullity while it has no jurisdiction to do so.

Particulars of Error
(a) The decision in suit No.CVC/M2/97 is a decision of an Area Court.
(b) By the combined effect of sections 53 and 54 of the Area Courts Law Cap 9 Laws of Borno State, it is only an Area Court that has the power or jurisdiction to entertain appeals arising from decisions of all grades of Area Courts.
(2) The Borno State High Court sitting in its appellate jurisdiction erred in law when it upheld the doctrine of estoppel per res judicata and went ahead to declare suit Nos.CVC/M2/97 and CVA/9/97 as nullities while the parties/privies and subject matter are not the same.

Particulars of Error
(a) There is nothing on the records of suit Nos. CVC/M2/97 and CVA/9/97 to show that the parties are related in any way.
(b) The parties in suit No.CVC/M2/97 are Bulama Dungus v. Kellu Mbudiye quite distinct from the parties in suit No.CVA/9/97.
(3) The Borno State High Court sitting in its appellate jurisdiction erred in law when it held as follows, ‘…we uphold that the decisions before Bama Area Court 1 suit No. CVC/M2/97 between Bulama Dungus v. Kellu Mbudiye, which went on appeal before Bama Upper Area Court suit No. CVA/9/97 between Bulama Dungus Mashamishri v. Abani Mbudiye and Kellu Mbudiye were nullities. These two decisions are accordingly set aside as being nullities…’ without stating any reason thereby it has occasioned a miscarriage of justice.

Particulars of Error
a) Suits Nos. CVC/M2/9/97 and CVA/9/97 which were declared nullities are not suits before the Borno State High Court for determination, rather, suits No. 2/97,133/91 and suit 5/92 are the suits before it for determination.
(b) Courts of law must always state reason for its decisions.
(4) The Borno State High Court sitting in its appellate jurisdiction erred in law when it went on a voyage of discovery by entertaining issues not before it and at the end went ahead to grant prayers and reliefs not sought by the parties.

Particulars of Errors
(a) The suits sought to be declared nullities are suits No. 2/97,133/91 and suit No. 5/92 while the Borno State High Court went ahead to declare suits CVC/M/97 (sic) and CVA/9/97 which were never challenged.
(b) The only ground of appeal before the Borno State High Court complained of suits No. 2/97,133/91 and 5/92.
(c) The suits the subject of appeal to wit: 2/97, 133/91 and 5/92 (sic) are not in any way related to the parties.”

The appellant has formulated three (3) issues for determination, namely:
1. Whether the lower court was right when it held and declared as nullities cases No. CVC/M2/97 and CVA/9/97 as having been caught up by the doctrine of estoppel per res judicata?.
2. Whether it is permissible for court of law to embark on a voyaged (sic) of discovery by pronouncing and or adjudicating on matters not covered by grounds of appeal canvassed before it and also not part of the issues raised in the appeal before it?.
3. Whether a High Court of a State has jurisdiction to hear and determine an appeal from the decision of an Area Court?.

It is stated in the appellant’s brief of argument, that issue one (1) subsumes grounds 2 and 3 of the grounds of appeal, while issue two (2) relates to ground 4 and that issue three (3) relates to ground 1 of the grounds of appeal.