Tozali Maza Makami V. Lami Umaru (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A. (Delivering leading Judgment)

This is an appeal against the Ruling/Judgment of the High Court of Justice sitting at Karu, Nassarawa State delivered on the 4th day of July 2011, dismissing the plaintiff’s claim for being an abuse of court process and caught up by the doctrine of res-judicata.

The appellant as the plaintiff commenced an action in suit No NSD/No 5/2010 at the High Court of Jusitce Nassarawa State, sitting of Karu against the defendant now respondent claiming as follows:

a) A declaration that the plaintiff is the owner of the parcel of land which is situated and lying at Karmo in Gadabuka Development Area of Toto Local Government Council as described in paragraph 24 of the statement of claim.

b) A declaration that the defendant s claim over the said parcel of land is wrongful and baseless.

c) An order of perpetual injunction restraining the defendant, either by himself, privies or agents from doing anything with or lying claims to the said parcel of land.

d) The sum of Two million N2,000,000 being general damage for trespass, inconvenience, embarrassment the defendant has subjected the plaintiff.

e) The cost of this action and other incidental costs thereto.

Pleadings were filed and exchanged by parties. Before hearing commenced Defendant/Respondent brought a motion on notice dated 29/6/10 seeking for the following:-

“i. an order of this Honourable court that this suit to wit suit No VSD/No 5/2010 between Tozali Maza Makami v. Lami Umaru is res judicata and therefore an abuse of the judicial process

ii. An order of this Honourable Court, that suit No NSD/No 5/2010 being an abuse of judicial process, it lacks the requisite jurisdiction to entertain same.

iii And for such or any other order this Honourable Court may deem fit and proper in the circumstances to make.”

The motion is supported by a 22 paragraph affidavit deposed to by the applicant herself. Exhibits A – D were attached to the motion paper. The Defendant/Respondent also filed a 22 paragraph counter-affidavit and attached two exhibits. The learned trial judge after taking counsel’s arguments on the preliminary objection challenging the competence of the action invited the judge who presided over the case (Exhibit ‘B’) in respect of which formed the defendant/respondent’s objection, to testify before it. After his testimony the trial court moved to the locus in quo with a view to ascertaining whether the subject matter of the dispute before it had once been litigated upon. After the visit to the locus in quo the learned trial judge in a considered Ruling/Judgment dismissed the plaintiff/appellant’s case before it. The learned trial judge of page 152 of the record had this to say:-

“This suit is accordingly dismissed for being an abuse of court process and caught up by the doctrine of re-judicata. The plaintiff is hereby estopped from re-litigating over the same land again for writ of possession was issued in favour of the defendant/applicant. And this court lacks jurisdiction to entertain same. See the case for Udoh v. Okoli (supra) Dim v. Enenuo (supra).”