Habu Tahiru V. Maiwada Ishaku (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED A. DANJUMA, J.C.A. (Delivering the leading judgment)

The Appellant had instituted a suit as a plaintiff at the Upper Area court, Keffi in Nasarawa State in Suit No.UACK/8CV/2000 against the Respondent herein (as a defendant) over a farm land.

Before the hearing of suit could commence, the Respondent raised a point of preliminary objection against the suit based upon the doctrine of estopel per rem judicata.

The said objection was argued and sustained by the Upper Area

Court. The Plaintiff, being dissatisfied appealed against the said ruling to the High Court of Justice, Keffi, whereat the appeal was dismissed and the ruling of the Upper Area Court sustaining the objection was affirmed and the objection further re-affirmed.

The Record of Appeal in this matter was compiled and transmitted on the 13/2/04, whilst the Ruling was delivered on 21/10/2003; a period of 103 days between the Ruling and compilation.

I find nothing in the record to suggest that leave was sought and granted to so transmit record out of time, but I shall say no more as the parties have not raised it as an issue. I cannot even lay my hands on the Notice of Appeal that has the date of filing to assist me in the issue which could be so resolved upon a perusal of the date of filing.

Be that as it may, the relevant and key issue is that following the entry of the record, the Appellant filed the Appellant’s Brief of Argument dated 4th April, 2004 on the 5/4/2004 and obtained an order of this court on the 9th March, 2006 for the appeal to be heard on the Appellant’s Brief alone upon his motion to that effect which was filed on 25th May, 2005.

The Respondent, it should be pointed out, had filed a motion on 15/12/2006 for an order extending time within which the Respondent could file and serve the Respondent’s Brief out of time. The said motion was however, struck out on the 13/6/12 for want of prosecution.

I, therefore, have only the Appellant’s Brief to grapple with. At the hearing on the 4th March, 2013, J. Y. Bello, Esq. appeared for the Appellant and adopted the Appellant’s Brief of Argument filed on 5/4/2004 and urged that the appeal be allowed. Although the Registrar of this court informed this court that the Respondent was served a Hearing Notice on 12/2/2013, no appearance was put up to respond to the arguments contained in the Brief of Argument adopted. In the said adopted Brief of Argument, at paragraph 3.1 – 3.3 thereof, the Appellant distilled 3 issues for our determination, to wit:-

1. Whether the lower courts were right in dismissing the Appellant’s claim based on the doctrine of estopel per rem judicata.
2. Whether the objection was properly raised at the trial court.
3. Whether it was the correct position of the law as stated by the lower court when it stated” –

“when a claim of declaration of title fails the case for trespass cannot stand.”

I have perused the issues and think that from the decision of the lower (High Court) court appealed from, the only relevant issues that are all encompassing and shall determine this appeal on its merit are issues No.1 and 2.

Issue No.3 is academic and its determination either way does not answer the grounds of appeal that germanely arise from the decision appealed from.

Issue No.2 may be subsumed in issue No.1 and shall therefore be treated briefly.