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No man shall be vexed twice for one and the same cause on the same issue

JEGU v. CHIN (2018) LPELR-45891 (CA) In the Court of Appeal In the Makurdi Judicial Division Holden at Makurdi ON THURSDAY, 1ST NOVEMBER, 2018 Suit No: CA/MK/14/2014 Before Their Lordships: JUMMAI HANNATU SANKEY, JCA ONYEKACHI AJA OTISI, JCA JOSEPH EYO EKANEM, JCA Between DANIEL UTILE JEGU (Suing for himself and as representative of ORFEGA -…

Scale of Justice. Photo/Sealchambers

JEGU v. CHIN (2018) LPELR-45891 (CA)

In the Court of Appeal
In the Makurdi Judicial Division
Holden at Makurdi
ON THURSDAY, 1ST NOVEMBER, 2018
Suit No: CA/MK/14/2014

Before Their Lordships:

JUMMAI HANNATU SANKEY, JCA
ONYEKACHI AJA OTISI, JCA
JOSEPH EYO EKANEM, JCA

Between

DANIEL UTILE JEGU
(Suing for himself and as representative of ORFEGA – Appellant
ATO family)

And

ABRAHAM CHIN
(Sued for himself and as representing CHIN – Respondent
ATAGHER family)

LEAD JUDGMENT DELIVERED BY JOSEPH EYO EKANEM, J.C.A.

FACTS OF THE CASE

This appeal is against the judgment of the High Court of Justice Benue State, holden at Makurdi wherein the trial Court dismissed the claim of the Appellant (as Plaintiff) against the Respondent (as Defendant) and granted the counter-claim of the Respondent.

At the trial Court, the Appellant sought for:

(1) A declaration that he is the customary right, title and interest holder over the land in dispute situate at Mbaafur in Dauda, Guma LGA of Benue State; and

(2) An order of perpetual injunction restraining the respondent, his privies etc. from trespassing on the land in dispute.

The respondent, apart from denying appellant’s claim, counter-claimed for:

(a) A declaration of title over the land claimed by the appellant; and

(b) An injunction restraining the appellant and members of his family from trespassing on the land.

Issues having been joined by the parties and after a pre-trial conference, the case proceeded to trial.

At the end of the trial and taking of addresses, the trial Court in its judgment first struck out the case of the appellant for being caught by the doctrine of res judicata.

It thereafter considered the case on its merit and dismissed the same while granting Respondent’s counter-claim. Aggrieved by the decision, the Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

The Court considered the appeal on the following issues:

1. Whether or not, by the evidence adduced before the trial High Court, available on record, the trial High Court was justified in holding that the land in dispute in the instant case was the same earlier litigated upon by the privies to the present parties in Suit No. CV/23/87 as to ground the invocation of the doctrine of Res judicata, and consequent striking out of the Appellant’s action.

2. Whether or not, based on the admissible evidence adduced before the trial High Court, the trial High Court was right in dismissing the Appellant’s action and entering judgment in favour of the respondent, who was bound to prove his counter-claim as an independent action subjects to all the principles guiding the grant of same.

3. Whether or not the trial High Court judge was right in descending into the arena by making use of the proceedings in CV.23/87 tendered for the purpose of determining whether the action was caught by the doctrine of res judicata to make use of same to discredit the root of title of the Appellant.

APPELLANT’S COUNSEL SUBMISSIONS

On issue 1, Appellant’s counsel straightaway urged the Court to enter a negative answer to the issue. He stated that the land granted by the Area Court in Suit No. CV/23/87 in favour of Respondent’s privies over which there has been no appeal was different from the land in dispute in the instant matter.

He noted that the complaint of the Appellant was that the Respondent left the land granted in the previous suit and moved into the Appellant’s land which is outside the land covered by the judgment in CV/23/87.

He referred to the pleadings of the Appellant and noted that the description of the land in dispute therein does not accord with the identity of the land in the previous suit.

He referred to the Area Court’s description of the land during its visit to the locus in quo and expressed surprise that the trial Court premised its decision not on that description but on features on the land.

This, he contended, was contrary to the law. He urged this Court to re-evaluate the evidence.

He asserted that the Respondent failed to establish the identity of the land in the previous suit to warrant the invocation of the doctrine of res judicata against the Appellant.

He concluded that the trial Court had an option of visiting the locus in quo if it was not satisfied with the differences of identity.

Arguing issue 3, Appellant’s counsel submitted that it is trite that documents admitted for a particular purpose cannot be relied upon by the Court for any other purpose than the purpose for which it was admitted.

He noted that the Appellant pleaded Exhibits A1 and A2 to show that the land subject matter of that suit was different from the land in dispute in the instant matter while the Respondent pleaded it as res judicata.

He contended that extensive combing of and referencing to the exhibit by the trial Court for the purpose of discrediting the Appellant’s root of title was therefore an error.

RESPONDENT’S COUNSEL SUBMISSIONS

On his part, Respondent’s counsel stated, in essence, that the Appellant (as PW1) admitted in cross – examination that the land in dispute in the previous suit is the same as the land over which he instituted the present action.

This, he stated, was acknowledged by PW2. He submitted that a fact admitted needs no further proof.

For the Respondent, on issue 3, it was contended that it was the Appellant who introduced Exhibit A1 in the proceeding and that he did not restrict its purpose.

He noted that the same was used by Respondent’s counsel to cross-examine the Appellant on his root of title.

He concluded by submitting that the trial Court was under a duty to pronounce on all issues placed before it including the content of Exhibit A1.

RESOLUTION OF ISSUES

In resolving issue 1, the Court cited Section 173 of the Evidence Act as regards the doctrine of res judicata which is to the effect that where a Court of competent jurisdiction has settled, by a final decision, the matters in dispute between the parties, none of the parties or his privy may re-litigate that issue again by bringing a fresh action.

The Court further sated what must be proved for there to be a successful plea of res judicata or estoppel per rem judicatam. See Ikpang v. Edoho (1978) 6-7 SC 22 and Ntuks V Nigerian Ports Authority (2007) 31 NSC QR 430.

The Court noted that it is clear that the Appellant and his witness admitted in cross-examination that the land in the previous suit is the same as the land in the instant matter.

The Court stated the position of the law that a fact admitted in cross-examination needs no further proof though it was denied in examination-in-chief. See Jolasun V Bamgboye (2010) 18 NWLR (Pt. 1225) 285, 307.

The Court held that the full effect of a successful plea of res judicata by a defendant is that it operates not only against the other party, it also ousts the jurisdiction of the Court before which it is raised to hear the matter.

See Jimoh V Akande (2009) 5 NWLR (Pt. 1135) 549, Oleksandr V Lonestar Drilling Company Ltd (2015) 9 NWLR (Pt. 1464) 337 and Ntuks V Nigerian Ports Authority supra.

The Court therefore entered an affirmative answer to issue 1 and resolved it against the Appellant.

On issue 2, the Court noted that apart from leading traditional evidence on how the land was founded and the line of succession, the respondent tendered the judgment of the Area Court, which found the respondent’s predecessor-in title to be the owner of the land in dispute as against the Appellant’s predecessor-in-title.

The Court held that the judgment of the Area Court was conclusive in regard to that fact and the appellant are estopped from contending to the contrary.

The Court entered an affirmative answer to issue 2 and resolved it against the appellant.

Resolving issue 3, the Court held that as rightly submitted by Appellant’s counsel, where a document is admitted in evidence for a particular purpose, the trial Court cannot use the document for any other purpose or use any other portion of the document, which has not been specifically put in evidence.

However, where a document is tendered in evidence for all purposes, the Court is entitled to use any portion of the document for any of the purposes for which it was tendered.

See Attorney – General of Oyo State v Fair Lakes Hotels Ltd (1989) 5 NWLR (Pt. 121) 255 and Ngwu V Nnaji (1991) 5 NWLR (Pt. 189) 18.

The Court held further that since Exhibits A1 and A2 were tendered for the purposes specified, the trial Court erred in using it for the purpose of concluding that the Appellant denied his ancestors as testified to in the said documents.

Furthermore, the Court held that evidence of a witness in a previous proceeding is neither relevant nor admissible in a subsequent judicial proceeding although such may be used for purpose of cross-examination of the same witness as to his credit under Section 233 (1) of the Evidence Act. The Court resolved issue 3 in favour of the Appellant.

HELD
On the whole and having resolved issues 1 and 2 against the appellant, the Court reached the conclusion that the appeal lacks merit. It was accordingly dismissed.

Appearances:

I.O.AORABEE, ESQ. with him, M. T. OR, ESQ. and MOYO MOKU, ESQ. – For Appellant
E. I. IAREN, ESQ. – For Respondent

Compiled by LawPavilion