Anthony Damisa Tiput (Appellant) And Halilu Ali Dawamkat & Anor (Respondents)

Facts

The Appellant instituted the action – Suit No. PLD/P.28CV/2013 – at the trial court seeking some declaratory and injunctive reliefs against the Respondents. Upon being served with the court process, the Respondents entered appearance and filed their Statement of Defence. Subsequently, the Respondents filed a Notice of Preliminary Objection challenging the competence of the suit on the ground of res judicata. The objection was predicated on an earlier decision of the Grade I Area Court, Mangu, in Suit No. CV/323/1983, between Mai-Angwa Dawap of Milet (alias Dawamkat) and Sarkin Bungha Denan of Bungha, who are the predecessors-in-title of the present parties. The trial High Court heard arguments on the objection and, in its ruling, upheld the Respondent’s objection. Accordingly, the suit was struck out on the ground that the action had been caught by the doctrine of res judicata.

Dissatisfied with that ruling, the Appellant appealed to the Court of Appeal which court unanimously dismissed the appeal. Still dissatisfied, the Appellant filed a further appeal to the Supreme Court.

Issues for Determination

The Supreme Court adopted the three issues for determination distilled by the Appellant in determining the appeal. The issues are:

1. Whether the court below was right when it affirmed the decision of the trial court that Suit No. PLD/P.28CV/2013 between the parties therein was caught upon by the doctrine of Res-Judicata, in view of the decision of the Area Court, Mangu in Suit No. CV/323/1983 between Mai-Angwa Dawap of Millet and Sarkin Bungha Denan, without considering the decision of the upper Area Court in Suit No. CV/79/1985 between Alhaji Shuaibu and Sarkin Bungha Denan before arriving at its judgement.
2. Whether the Court below was right to have affirmed the decision of the trial court that the Suit No. PLD/P.28CV/2013 was caught up by res judicata without looking at the pleadings of the parties and exhibits G, GI, and G2 attached to the Appellant’s Counter Affidavit, wherein the Respondents had admitted that the land in dispute in Suit No. PLD/P.28CV/2013 is different from the land declared in favour of their father in Suit No. CV/323/1983.
3. Whether the learned justices of the Court of Appeal were right when they failed and neglected to determine issue 2 formulated by the Appellant in his brief and if the answer is in the affirmative, whether the failure has not occasioned a miscarriage of justice against the Appellant. 

Arguments

Arguing the issues, the Appellant submitted that the crux of the appeal concerns the concurrent findings of the two lower courts that the land in dispute in the present Suit No. PLD/P.28CV/2013, is the same as the land litigated upon in Suit No. CV/323/1983. Counsel argued that both courts fell into grave error because they failed to place the decisions in Suit No. CV/323/1983 and CV/79/1985 side by side in order to determine the particular land in dispute. Counsel submitted that a careful examination of the judgement of the Grade I Area Court, Mangu, in Suit No. CV/323/1983 shows that the land in dispute therein, between Mai-Angwa Dawap of Millet (Dawakat) and Sarkin Denan Bungha, bears no relationship whatsoever with the land on which the Mangu General Hospital is situated. That it is the latter suit between ALHAJI SHUAIBU BABUJE v SARKIN DENAN BUNGHA that is connected to the land around the General Hospital. He contended further that the trial court failed to properly consider the evidence and exhibits before it, and instead resorted to speculation by attempting to determine whether the land in Suit No. CV/323/1983 is located at the right or left of the Jos–Mangu–Pankshin Road. That the lower courts failed to consider the decision in Suit No. CV/79/1985 which would have helped to determine which of the lands relates to the land surrounding the Mangu General Hospital. In conclusion, he urged the Supreme Court to allow the appeal, set aside the decisions of both the Court of Appeal and the trial court, and remit the case to the High Court for hearing on the merits before another judge.