BANGUL v. JINGI
CITATION: (2017) LPELR-43270(CA)
In the Court of AppealIn the Jos Judicial Division
Holden at Jos
ON FRIDAY, 17TH MARCH, 2017Suit No: CA/J/67/2015
Before Their Lordships:
ADZIRA GANA MSHELIA Justice, Court of AppealADAMU JAURO Justice, Court of AppealRIDWAN MAIWADA ABDULLAHI Justice, Court of Appeal
BetweenAYUBA BANGUL - Appellant(s)
AndNGWAMA JINGI - Respondent(s)
RATIO DECIDENDI
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1. EVIDENCE - ESTOPPEL PER REMJUDICATAM/RES JUDICATA:Conditions that a party pleading resjudicata must satisfy to sustain suchplea; effect of failure to satisfy same"To sustain a plea of Res judicata,the party pleading it must satisfyfollowing conditionalities to wit:1. The parties (or their privies as thecase may be) are the same in thepresent case as in the previouscase.2. The issue and subject matter arethe same in the previous suit as inthe present suit.3. The adjudication in the previouscase must have been given by aCourt of competent jurisdiction; and4. The previous decision must havefinally decided the issues betweenthe parties. See Atuyeye v Ashamu(2000) ALL FWLR (Pt.455) 1770 at1778 paras E-G and Odutola vOderinde (2004) ALL FWLR (Pt. 217)615 at 625."Per MSHELIA, J.C.A. (Pp.15-16, Paras. D-A) - read in context
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2. J U D G M E N T A N D O R D E R -S E T T I N G A S I D EJUDGMENT/ORDER: Principles oflaw that govern the setting aside ofa judgment"The contention of the Appellant'scounsel is that the judgment of theUba Area Court delivered in 1986was obtained by fraud; as such itcan be set aside. It is trite that hewho asserts must prove the factsasserted. The Court requires astrong case to be established beforeit will allow a judgment to be setaside on ground of allegation offraud. It is trite law that in order tohave a judgment set aside on theground that it was obtained by fraudit must be established that thatjudgment was procured by fraud.See Alhaji Nurudeen Olufunmise vMrs. Abiola Labinjo Falana (1990)LPELR-2616 (SC)."Per MSHELIA,J.C.A. (P. 13, Paras. A-D) - read incontext
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3. PRACTICE AND PROCEDURE -SPECULATION: Whether Court canact on speculations"A Court is not entitled to assume orspeculate anything. Often times, itleads to a miscarriage of justice. SeeUniversal Trust Bank of Nigeria vOzoemena (2007) 3 NWLR (Pt.1022)448; (2007) 1-2 S.C (Pt.11) 211,(2007)."Per MSHELIA, J.C.A. (P. 11,Paras. A-B) - read in context
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ADZIRA GANA MSHELIA, J.C.A. (Delivering the
Leading Judgment): This is an appeal by the Appellant
against the decision of the High Court of justice of Borno
State sitting in its Appellate jurisdiction delivered on the
18th day of September, 2013 by C.A. Mamza J. (Presiding)
and H.Y Mshelia J. wherein the lower Court entered
judgment in favour of the Respondent herein setting aside
the decision of the trial Court (Upper Sharia Court Askira).
The facts leading to this appeal as presented by Appellant
are as follows: On the 11th day of August, 2009 the
Respondent herein instituted a claim before the Upper
Sharia Court Askira at Askira Uba Local Government Area
of Borno State claiming the inherited farmland of the
Appellant herein. The Respondent herein presented his
claim before the then judge (Alkali) Garba Gashi and the
Appellant herein denied the said claim. The matter
proceeded to full trial. The Respondent herein sought to
tender in proof of his claim a judgment as the only evidence
relied on which according to Respondent the said judgment
was obtained in the year 1986 when his father Ngwama
Pashall and the father of the Appellant
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herein Mubiyakwa had a case bearing a suit No. 71/86 at or
before the Area Court Uba, in Askira/Uba Local
Government Area of Borno State where the said farmland
was declared as his father's own. The Appellant herein
denied the claim of the Respondent herein and filed an
application through his counsel challenging the
genuineness and the root of that judgment sought to be
tendered as the only evidence by the Plaintiff/Appellant
now respondent in proof of his claim. The application was
filed before a new judge (Alkali Mohammed B. Hassan) as
the former judge (Alkali Garba Gashi) had retired.
According to Appellant herein based on what happened, the
new judge instead of ordering for the matter to go on
denovo he went ahead to hear and determine the
application. The judge Mohammed B. Hassan ordered that
the Plaintiff/Appellant now Respondent should produce a
complete record of proceedings of the said Area Court Uba
that delivered the judgment. The Respondent herein
brought a record typed proceedings but the judge of the
Upper Sharia Court Askira was not satisfied with the
record of proceedings of Area Court Uba produced before
him being proceedings in case
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of Ngwama Pashall v Mubiyakwa Suit No.71/1986. The
judge found no merit in the claim and entered judgment in
favour of the Defendant/Respondent Appellant herein.
Dissatisfied with the decision of the trial Court the
Plaintiff/Appellant now Respondent lodged an appeal to the
High Court of Justice Borno State. The lower Court heard
the appeal and entered judgment in favour of the
Plaintiff/Appellant now Respondent. Unhappy with the
decision of the lower Court delivered on 18th day of
September 2013, Appellant herein lodged an appeal to this
Court vide his Notice and Grounds of Appeal filed on
18-11-2015, pursuant to order of this Court made on
26-10-2015 granting leave to the Appellant to appeal
against the decision of the High Court of Justice Borno
State.
In compliance with the Rules of Court Appellant filed his
Appellant's Brief of Argument. The Appellant's Brief settled
by A.S. Yarima, Esq., N.N. Haruna, Esq., W.I. Ibrahim, Esq.,
A.S Giwa, Esq., Shamsudeen Ja'afar, Esq. was dated 20th
day of January 2016 and filed on 12th February, 2016.
Respondent did not file any brief of argument. When the
appeal came up for hearing, Appellant adopted his
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brief of argument after obtaining leave to hear the appeal
based on appellant's brief alone.
The Appellant's brief contained three issues distilled from
three grounds of appeal filed by the Appellant.
The issues are:
1. Whether or not the lower Court was right in law
when it held that the Defendant/Respondent now
Appellant herein is the plaintiff at the trial Court
(Upper Sharia Court) Askira".
2. Whether or not the lower Court was right in law
when it held that judgment of Area Court Uba in a
Suit between Ngwama Pashall v Mubiyakwa Wamdeo
Suit No. 71/1986 is still valid and subsisting; and
3. Whether or not the lower Court was right in law
when it held that the Record of Proceedings in the
matter of Ngwama Pashall v Mubiyakwa Wamdeo suit
No. 71/1986 is not obtained by fraud.
In determining this appeal, I will adopt the three issues
raised by the Appellant and same will be treated serially.
ISSUE NO. 1
Issue one is distilled from ground one. In arguing this issue,
learned counsel submitted that the lower Court (High Court
of Justice Borno State) was misled by the Plaintiff/Appellant
now Respondent's counsel into
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believing and holding that it was the defendant/Respondent
now Appellant that first initiated or sued by way of motion
under Appeal claiming a farmland of the Plaintiff/Appellant
now Respondent at the trial Court (Upper Sharia Court)
Askira, while reverse was the case. Reference was made to
the judgment at page 68 paragraphs 5-10 of the record.
Learned counsel contended that the submission and
findings were wrong, misconceived and contrary to what
really transpired at the trial Court. That it was the
Appellant now Respondent who initiated proceedings at the
Upper Area Court Askira claiming the inherited farmland of
the Respondent now Appellant herein before the then judge
Alkali Garba Gashi. That when the Respondent now
Appellant denied his claim, the matter went on full trial.
Based on the foregoing the Appellant now Respondent
herein sought to tender a judgment in proof of his case
which according to him was obtained in the year 1986
when his father (Appellant/Respondent and father to the
Respondent/Appellant had a case i.e. Ngwama Pashall v
Mubiyakwa Wamdeo in Suit No. 71/1986 at the Area Court
Uba and the farmland was declared as his father's
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own.
Learned counsel further submitted that the Respondent
now Appellant herein challenged the genuineness and
admissibility of the said judgment by filing an application
(Motion) before the same Court Upper Sharia Court Askira
but before a new judge (Alkali) Mohammed B. Hassan that
took over from (Garba Gashi) having gone on retirement.
According to counsel, the latter judge instead of ordering
the matter to be mentioned afresh (Denovo) went ahead
and continued with the hearing of the motion that was filed
by the Respondent now Appellant. The application was
granted. On an appeal to the lower Court the motion was
brought before the lower Court without the record of
proceedings that could establish that the Plaintiff/Appellant
now Respondent had since mentioned his case as a plaintiff
before Garba Gashi. It was argued that the lower Courts
did not appreciate the status of the parties before the trial
Court and thus made a contrary submission in favour of the
Plaintiff/Appellant now Respondent wherein. Counsel urged
the Court to hold that the lower Court was wrong when it
failed to appreciate the status of the parties and held that it
was the
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defendant/Respondent now Appellant that first initiated
proceedings at the trial Court while reverse is the case.
That failure of the lower Court to peruse the record of the
Court below appealed against and make findings
occasioned substantial miscarriage and the decisions is
liable to be set aside. Reliance placed on Olorunfemi v
N.E.B Ltd (2003) 5 NWLR (Pt.812) 1 at 25 paras A-B
and Garuba v Yahaya (2007) 1 SCNJ @ 354. page 360
paras 20- 35. He urged the Court to resolve this issue in
favour of the Appellant.
The contention of the Appellant's counsel is that the
submission and findings of the lower Court appearing at
pages 68 paragraph 5-10 of the record are wrong and
misconceived. For ease of reference paragraph 5-10 read
thus:
"the facts that gave rise to the motion under Appeal
as can be garnered from the printed record is that the
Respondent herein initiated a proceedings before
Askira Uba Sharia Court against the Appellant
claiming a farmland. The Appellant raised the issue of
res judicata by brandishing the judgment of Uba
Sharia Court as binding being privies to their
respective father that litigated over the farmland in
1986. The
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Respondent then filed the motion under Appeal
asking the Askira Uper Sharia Court to set aside the
1986 judgment on the ground that the record was
incomplete. The motion was granted and hence this
appeal".
I have carefully perused the printed record. The
proceedings before the Askira Upper Sharia Court
commenced from pages 16-35 of the record. At pages 16 of
the record the proceedings relates to a motion on notice
filed by one Ayuba Bangul who was the Applicant. While
Ngoma fingi was the Respondent. By the motion on notice
dated 13th December 2010 and filed on 21st December
2010 the Applicant sought for an order setting aside record
which contain the judgment of Uba Area Court, the
proceedings being incomplete. See page 58 of the record.
Apart from the proceedings relating to the motion, there is
no other proceedings conducted by the Upper Sharia Court
Askira contained in the record of Appeal. I wish to note a
portion of the judgment of Upper Sharia Court Askira
appearing at page 30 of the record which appears relevant
in resolving the issue under consideration. The portion of
the judgment at page 30 lines 10-15 read thus:
"This case originate
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based on the appeal filed by the appellant before this
Court that the land was declared to the respondent,
the learned counsel for the applicant was at a time
the case was filed the respondent came with the
judgment of the Uba Area Court that it has been given
to his father the said land he has title document,
based on this they did not agree with the said
judgment and they filed a motion."
It is also worthy of note the observation made by the lower
Court regarding the above quoted passage. At page 69 of
the record the lower Court observed as follows:
"Clearly from the above quoted passage it is
unequivocal that there was a proceeding before the
Court below where the judgment of the Uba Area
Court was sought to be relied upon before the motion
under appeal was filed seeking to set aside the
judgment. What is not clear is the nature of the
proceedings. Was it an appeal or a fresh case?
However, both parties are at one by our ruling that
the proceedings was an appeal. If it was not an
appeal, then it was a fresh suit".
From all that I have said, I find it difficult to appreciate the
complaint of the Appellant that the lower Court was misled
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by the Plaintiff/Appellant now Respondent into believing
and holding that it was the Defendant/Respondent now
Appellant that first initiated or sued by way of motion
under Appeal claiming a farmland of the Plaintiff/Appellant
now Respondent at the trial Court (Upper Sharia Court)
Askira while reverse was the case. I cannot find anything
wrong with the submission of the lower Court reproduced
supra.
From the record it was the defendant/Respondent now
Appellant that first initiated or sued by way of motion
under Appeal asking the Askira Upper Sharia Court to set
aside the 1986 judgment on the ground that the record was
incomplete. Appellant did not draw the attention of the
Court to any portion of the record that showed that
respondent herein was the person that first initiated the
suit before Upper Sharia Court Askira. There is no other
proceedings of the Upper Sharia Court Askira before us
which showed that respondent herein first initiated
proceedings claiming the inherited farmland and upon
denial by Appellant herein the matter went on full trial. As
to whether the lower Court was misled as alleged by
Appellant, it is my
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humble view that there is no evidence to substantiate the
allegation. A Court is not entitled to assume or speculate
anything. Often times, it leads to a miscarriage of justice.
See Universal Trust Bank of Nigeria v Ozoemena
(2007) 3 NWLR (Pt.1022) 448; (2007) 1-2 S.C (Pt.11)
211, (2007). This issue will therefore be resolved against
the Appellant.
ISSUE NO. 2
While arguing this issue learned counsel for the Appellant
submitted that counsel to the Plaintiff/Appellant now
Respondent intentionally misled the lower Court with intent
to obtain judgment fraudulently by making the submission
that the purported judgment of the Area Court Uba is still
valid and subsisting. It is trite law that for a plea of
estoppel to succeed a party relying on it must establish
amongst certain facts a pre-condition that the decision
relied upon to support the plea is valid, subsisting and final.
Reliance placed on Balogun v Ode (2007) 4, MJSC 91-92
paras G-G; Achiakpa v Nduka (2001)14 NWLR (Pt
734) 623; Fadiora v Gbadebo (1978)3 S.C 219;
Abubakar v Bebeji Ltd (2007) 4 MJSC 35 paras B-D
and Oke v Atoloye (No.2) (1986)1 NWLR (Pt.15) 241
at 260. Learned counsel maintained
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that the defendant/Respondent now Appellant did not in
anyway initiate any claim or proceedings at the trial Court
(Upper Sharia Court) Askira against the Plaintiff/Appellant
now Respondent. That it was illogical for the lower Court to
just assume that there was a defence of res judicata
(estoppel) raised by the Plaintiff/Appellant now
Respondent. That for such a defence to exist it must be
established that there was a final, subsisting and valid
judgment claimed to have been obtained in 1986 in a suit
between the parents of the Plaintiff/Appellant now
Respondent and Defendant/Respondent now Appellant.
That since the judgment does not exist same has not been
established.
Learned counsel further submitted that it is trite law that
where a Judgment was obtained by fraud, such judgment
can be set aside not only by the appellate Court but even
the Court itself, when it is manifestly clear that the
judgment was obtained by fraud as a result of
misrepresentation or concealment of facts. According to
him counsel to the Plaintiff/Appellant now Respondent did
conceal or misrepresent the true facts of the case and
where such has been done, the judgment should be
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set aside. He urged the Court to resolve this issue in favour
of the Appellant.
The contention of the Appellant's counsel is that the
judgment of the Uba Area Court delivered in 1986 was
obtained by fraud; as such it can be set aside. It is trite that
he who asserts must prove the facts asserted. The Court
requires a strong case to be established before it will allow
a judgment to be set aside on ground of allegation of fraud.
It is trite law that in order to have a judgment set aside on
the ground that it was obtained by fraud it must be
established that that judgment was procured by fraud. See
Alhaji Nurudeen Olufunmise v Mrs. Abiola Labinjo
Falana (1990) LPELR-2616 (SC). The question now is
has the Appellant proved fraud to entitle the Court set
aside the Judgment delivered in 1986? The findings of the
lower Court at page 71 of the record has provided the
answer. The lower Court stated at lines 9-27 thus:
"Clearly from the position of the facts and argument
of counsel to the Applicant/Respondent, they are
blowing hot and cold at the same time. While on the
face of the motion paper they said that there was a
proceedings but it was incomplete,
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the supporting affidavit states that there was no case
at all. Counsel argument suggests that there was
proceeding but no service and hence the judgment
was obtained by fraud. Exhibit 'C' attached to the
further counter affidavit before the Court below
shows a full blown trial with a judgment at the end.
The record was certified by one Sa'adatu Madu as the
registrar of Uba Area Court. This record enjoys
presumption of regularity under the Evidence Act.
This presumption can only be displaced by cogent and
verifiable proof of a vitiating factor and not by mere
multiple allegations that contradict each other as in
this case.
It is noteworthy that the parties to this appeal,
though privies to the judgment of the Uba Area Court
the subject matter of this appeal, none was a
participant at the trial before Uba Area Court. Their
respective deceased fathers were the actors then. The
registrar of Uba Sharia Court having certified the
proceedings and the judgment, it is conclusive. The
only remedy if any one feels strongly about the
propriety of the record is to challenge the record
through appeal or judicial review before the
appropriate Court of
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record".
In line with the findings of the lower Court which I found
unassailable, I hold that the Appellant has failed to make
out any case warranting the setting aside of the judgment
of Uba Area Court in case No.71/1986 delivered in 1986.
The lower Court was right to hold that the judgment
obtained in 1986 in Suit No.71/1986 delivered by Uba Area
Court was final, subsisting and valid as such it cannot be
set aside. The plea of res-judicata (estoppel) is appropriate
in the circumstance. The said judgment obtained in the
year 1986 involved the parents of Plaintiff/Appellant now
Respondent and Defendant/Respondent now Appellant. To
sustain a plea of Res judicata, the party pleading it must
satisfy following conditionalities to wit:
1. The parties (or their privies as the case may be) are
the same in the present case as in the previous case.
2. The issue and subject matter are the same in the
previous suit as in the present suit.
3. The adjudication in the previous case must have
been given by a Court of competent jurisdiction; and
4. The previous decision must have finally decided the
issues between the parties.
See Atuyeye v
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Ashamu (2000) ALL FWLR (Pt.455) 1770 at 1778
paras E-G and Odutola v Oderinde (2004) ALL FWLR
(Pt. 217) 615 at 625. All the conditions have been
satisfied as such parties are precluded from re-litigating
the same cause of action, Issue 2 is similarly resolved
against the Appellant.
ISSUE NO. 3
While arguing this issue learned counsel for the Appellant
repeated his submission under issue 2 that the judgment
obtained in 1986 does not exist and if it exists, same was
obtained by fraud. Reference was made to the finding of
trial Court at page 33-34 of the record. His contention is
that the submission of the trial judge (Alkali) of Upper
Sharia Court Uba in his judgment quoted in the brief is a
clear indication that the said record of the Area Court Uba
with the Suit No. 71/86 does not exist and if it exists it must
have been obtained fraudulently. That the record produced
before the Court by Plaintiff/Appellant now respondent
herein has fallen short of genuine record of proceedings,
but rather it is a sort of fabricated one that has no root at
all. Reference was made to the submission of lower Court
at page 10 paragraph 30 of the
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record.
Counsel contended that there is no where that the hand
written record of proceedings of the Area Court Uba in Suit
No. 71/86 that gave birth to the purported judgment has
been produced before the Court. He urged the Court to
hold that the purported record including its judgment does
not and if at all it exists it was obtained by fraud because it
has no root. He urged the Court to allow the appeal.
The contention of the Appellant under this issue is that the
record of proceedings between Ngwama Pashall v
Mubiyakwa Wamdeo Suit No.71/1986 was obtained by
fraud. Appellant merely alleged fraud but has failed to
adduce any s t rong ev idence to impeach the
record. Appellant cannot successfully impeach the record
by merely alleging that Exhibit 'A' & 'C' were obtained by
fraud. The documents were duly certified as such there is
presumption of regularity as provided by the Evidence Act.
It cannot be conclusively taken that because the
proceeding was not obtained at the initial stage; the one
obtained later by the Respondent herein was obtained by
fraud. The burden of proof lies on the Appellant, and he has
failed to discharge same. I hold
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that the finding of the lower Court cannot be faulted. The
lower Court was right when it held that the record of
proceedings between Ngwama Pashall v Mubiyakwa
Wamdeo in Suit No.71/1986 is not obtained by fraud. I
similarly resolve issue three (3) against the Appellant.
Having resolved all the issues against the Appellant, I now
hold that the appeal is unmeritorious and same fails.
Appeal is hereby dismissed. The judgment of the High
Court of Borno State sitting in its appellate jurisdiction
delivered on 18th day of September, 2013 is hereby
affirmed. Parties to bear their own costs.
ADAMU JAURO, J.C.A.: I have had the opportunity of
reading in advance the lead judgment just delivered by my
learned brother, ADZIRA GANA MSHELIA, JCA. I am in full
agreement with the reasoning and conclusion reached to
the effect that the appeal is lacking in merit and should be
dismissed. I adopt the said judgment as mine and hereby
dismiss the appeal.
I subscribe to all consequential orders made in the lead
judgment, including that on costs
RIDWAN MAIWADA ABDULLAHI, J.C.A.: Having had
the
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privilege of reading in draft the lead judgment delivered by
my learned brother, Adzira Gana Mshelia, PJCA who
presided over the appeal and well considered the three (3)
issues elected by my noble lord for determination of the
appeal. I subscribed to the reasoning and conclusion
reached in the lead judgment with nothing useful to add
thereof.
I am of the opinion that the appeal is bound to fail for being
unmeritorious. It is therefore dismissed with abidance to
the consequential order contained in the lead judgment.
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Appearances:
W. L. Ibrahim, Esq. For Appellant(s)
Respondent absent (though served). ForRespondent(s)
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