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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