Alhaji Raimi Oloriegbe v. J.A. Omotesho

I have had the opportunity of reading in draft the judgment read by my learned brother Uche Omo, J.S.C .. I agree that the appeal has merit and that it should be allowed. I only wish to add that this court suo motu raised the question whether the High Court that set-aside the decision of the Upper Area Court, Lokoja was properly constituted in view of the provisions of section 238 of the 1979 Constitution. The question became pertinent because the issue of res judicata which was raised in the Court of Appeal and before us will fall or stand on the important question whether the judgment of the High Court as constituted by Kawu, CJ, Salami J and Abdullahi, Kadi (as they all were then) on the appeal from the Upper Area Court, Lokoja, was a valid judgment. Both learned counsel for the G parties have submitted, even though with much reluctance on the part of Mr. Oshe, that the High Court was improperly constituted due to the presence of a Kadi of the Shari a Court of Appeal who was not a Judge of the High Court.

I do not wish to say more on the point other than to adopt the judgment of my learned brother Ogundare, J.S.C. in that respect. Accordingly, I allow the appeal and set aside the judgment of the Court of Appeal. I abide by the orders contained in the judgment of my learned brother Uche Omo. J.S.C.

I had a preview of the judgment of my learned brother Uche Orno. J.S.C. I will also allow the appeal and send the case back to the High Court of Kwara State to be heard on its merits. I wish to add some points. It is important to bear in mind that the case which

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is on appeal to this court originated from an Area Court which by its composition is similar to a Native Court. It is for this reason that both the Area Court and the Native Court now popularly called Customary Court that one looks into the substance and not the form: MATE NONO PER TETTER OKUMA V. TSUTSU: 10 WACA. 89. In the Area Court Grade II Ilorin the appellant before us slated categorically the claim to wit: “I wish to claim my land sold to me of which the defendant is building his house on the land” After listening to the evidence by both parties and a visit to the locus in quo by the Area Court; the Court adjudged as follows: “The land in dispute declare (sic) lathe plaintiff as the rightful owner (sic). The court hereby order (sic) the defendant to demolish his, building and to remove all his properties on the land within 30days. ‘ It is the order of the Court i.e. demolition of the building and removal of his properties by the defendant that has led to appeals and another action. The judgment of the Area Court II Ilorin except the demolition order was confirmed by the Upper Area Court. A bewildered and frustrated plaintiff who was stunned by the refusal of the defendant to obey the court’s order filed another action in the Upper Area Court Lokoja seeking an order “to force the defendant to remove his building on the plaintiff’s land” on the ground that the court (Area Court II Ilorin) has awarded him title in respect of the land. The court i.e. Upper Area Court Lokoja found for the plaintiff in these words:

“we give judgment for the plaintiff and in our judgment we order that the defendant should vacate the land           by removing his house therefrom for use by the plaintiff not

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later than 26/6/81. ORDER: The possession of the        land on which the defendant’s house in dispute stands is awarded to the plaintiff. The defendant is ordered           to remove his house from the plaintiffs land not later than 26/6/81.”

The defendant then appealed to the High Court of Justice, Kwara State sitting in Ilorin. High Court of Justice Ilorin allowed the appeal against the order of demolition made by the Upper Area Court Lokoja in these words:

“The Appeal is therefore allowed and the decision of the Lokoja Upper Area Court ordering the demolition of the appellant’s building is set aside.”

There was an appeal to the Court of Appeal Kaduna Division. Another action filed by the plaintiff came before Ibiwoye J (as he then was).It was in respect of the same matter i.e. the land and the building on the land. In that Court another claim was added to the claims. The claims before him were for: (a) an order for possession (b) an account stated for rent collected by the plaintiff on the land adjudged to be the plaintiff’s land. A preliminary objection raised by the defendant on a plea of res judicata was dismissed. The defendant sought and obtained leave of the High Court of appeal to the Court of Appeal against that ruling. The appeal was allowed and the plea was sustained. In its unanimous decision the Court of Appeal coram: Aikawa, Ogundere and Achike, J.C.A. allowed the appeal.

Ogundere, J.C.A. in his lead judgment said:

“The plea of res judicata succeeds so does the appeal. The High Court of Kwara State in its appellate jurisdiction lacked jurisdiction to

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entertain the matter The appeal is accordingly allowed.”

The appellant has now appealed to this Court on one ground of appeal which without the particular reads:

“The learned Justices of the Court of Appeal erred in law in holding that the new suit was caught by the  doctrine of res judicata.”

The respondent has filed a Notice under Order 8 rule 3 of the Rules of the Supreme Court of notice of contention that the judgment should be varied on other grounds. This rule though in existence at the time the appeal was filed has now been deleted by Government Notice 111/1991 with effect from 1st October, 1991. I will come to this later. Nothing much was urged in the oral submission by both counsel except to emphasise that title which was challenged by the respondent was refused in all the courts. It is now the issue of res judicata that is now the bone of contention in this  appeal. Since the jurisdiction of the High Court with regard to the composition of members of that court was raised by us, we called on both counsel to address us. Under section 238 of the 1979 Constitution of the Federal Republic of Nigeria a High Court of a State shall be duly constituted if it consists of at least one Judge of that court. Mr. Ijaodola readily submitted that since the panel that heard the appeal from the judgment of Lokoja Upper Area Court was not properly constituted the decision of the High Court was a nullity. The Judges that heard the appeal were Saidu Kawu C.J. (as he then was) I.A. Salami, J. (as he then was) and Kadi Alhaji U.I Abdullahi: Kadi Sharia Court. It was not without some hesitation that Chief Oshe agreed that the judgment Exhibit C is a nullity and that the proper order is a retrial

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by the High Court; this is in so far as Exhibit C is concerned: That court was incompetent because it was improperly constituted, Kadi Alhaji Abdullahi was not qualified to sit: Madukolu v. Nkemdilim (1962) 1 AII NLR 587, (1962) 2 SCNLR 341. A judgment given without jurisdiction is a nullity Umenwuwaku v.  Ezeana (1972) 5 S.C. 543. It is the ruling of Ibiwoye J. that went on appeal to the Court of Appeal Kaduna and which ruling was set aside on the ground thatthe action before the High Court was caught by a plea of res judicata raised by the present respondent. The Court of Appeal rightly traced the history of the case before the various courts.

The lower Court per Ogundere, J .C.A. said:

“With the greatest respect to all the courts which have had anything to do with this case, the decision of the original Area Court of trial is commendable, dear and unambiguous. The defendant was in effect declared a  trespasser, and as an act of grace he was ordered to demolish his building and to remove all his property from the plaintiff’s land, otherwise the maxim quicquid plantatur solo-solo cedit would have applied so that the plaintiff would recover possession of his land together with the building planted on it, as his own . The appellant is therefore a trespasser and he should cease to be one.”

The lower Court was then of the view that the ancillary relief of rent or statement of account was wrongly decided. I do not wish to go into the merits of the conclusion reached in view of the passage quoted above and the relief sought by the appellant that the case be remitted to the High Court to be heard on its merits.

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Ibiwoye I rightly came to this conclusion in his ruling when he said:

“The question of rendering an account is a completely new issue which has not been judicially decided upon and therefore the doctrine of res judicata is inapplicable in this case.”

If one looks at the claims before the two Area Court they are in substance for title to the land in dispute and possession of the land. If the lower Court has come to the conclusion that the maxim quicquid plantatur solo-so/a cedit applies, I cannot see how the issue of account which was raised for the first time could be said to have been caught by the plea of res judicata. The respondent has filed a respondent’s notice to vary the judgment of the lower court. The reasons given are good grounds for across-appeal. The difference between a respondents notice (where it applies) and across-appeal was succinctly stated by this Court in Ogunlade v. Adeleye (1992) 8 NWLR (Pt.260) 409. On the whole I will allow the appeal, set aside the judgment of the Court of Appeal dated 21st April, 1988, the case is remitted back to the High Court of Justice Kwara State to be heard on its merits. I will abide by the order for costs in the lead judgment.

The two questions that arise in this appeal are as set out in the appellant’s brief, that is to say:- (i) does the doctrine of res judicata apply where the new claim does not exist at the time the original suit was filed; and (ii) does the doctrine of res judicata apply where the original cause of action continues unabated and the injury/damage continues and has not abated. In the

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course of the hearing of the appeal. however, another issue arose which called into question the validity of the judgment of the High Court of Kwara State quashing the decision of the Upper Area Court Lokoja which High Court  judgment is vital to a successful plea of res judicata. The chequered history of the series of litigations between the parties commenced in 1976 when the plaintiff (who is now appellant before us) instituted, in the Ilorin Area Court Grade 2, suit No.lAC/2/2/CV672/76 claiming from the defendant (now respondent) ownership of a piece or parcel of land situate at No. 1 Amilegbe Close, Ilorin. During the pendency of the action, the defendant built a house in the land. At the conclusion of trial, the trial Area Court Grade 2 found for the plaintiff and declared him to be the rightful owner of the land. It further ordered as follows: “The Court hereby orders the defendant to demolish his building and to remove all his property on the land within 30 days.” The defendant. being dissatisfied with that judgment, appealed to the Upper Area Court. Ilorin. in Appeal No. UACl/CVA.72/76.

The appellate court adjudged as follows:

“We therefore dismiss the appellant’s appeal subject to a variation that it was the land in dispute only that is declared for the respondent. The order for the demolition of the appellant’s building and the removal of all his properties on the land within 30 days is quashed because it is outside the respondent’s action”

There was no further appeal by either party. Following the setting aside by the Upper Area Court of the trial Area Court Grade 2’s order that defendant should remove his building and properties from plaintiff’s land as that order

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was not sought in the original action, the plaintiff, instituted case No. UCAL/CVF/30/78 in the Upper Area Court Lokoja claiming:-

“An order to force the defendant to remove his building on the plaintiffs land.” After taking evidence from the parties, the trial Upper Area Court, in a reserved judgment given on 26/3/81 adjudged as follows: • ‘In the circumstances of this case, we reject the defendant’s defence and we find for the plaintiff that he should recover the possession of the land from the defendant. As we are satisfied that the defendant has failed to dislodge the onus of proof which lay on him to prove his right to possession against the plaintiff the owner of the land, we award the possession of the land on which the defendant’s house stands to the plaintiff, In effect, we give judgment for the plaintiff and in our judgment we  order that the defendant should vacate the land by removing his house therefore for use by the plaintiff not later than 26/6/81.”

It further proceeded to give the following order:

“ORDER: The possession of the piece of land on which the defendant’s house in dispute stands is awarded to the plaintiff. The defendant is ordered to remove his house from the plaintiff’s land  not later than 26/6/81.”

The defendant again was dissatisfied with the judgment of the Upper Area Court, Lokoja and appealed to the High Court of Kwara State. That Court (coram: S. Kawu, C.J. (as he then was), Alhaji U. Y. Abdullahi, Kadi Shari a Court and LA. Salami, J. (as he then was) allowed the defendant’s appeal and held as hereunder:-

“We are in no doubt that Mr. Oshe’s submission is well taken. In our view the position now is that the

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decision of the trial court awarding title to the respondent still stands and so also does the decision of the Ilorin Upper Area Court regarding the setting aside of the order of demolition. We say this because this {sic} has not been any appeal against those decision (sic). In the circumstances we are of the view that Mr. Oshe’s point is valid and consequently the appeal must succeed. The appeal is therefore allowed and the decision of the Lokoja Upper Area Court ordering the demolition (sic) of the appellant’s building is hereby set aside.”

The plaintiff, being aggrieved with the decision, sought leave of the High Court to appeal to the Court of Appeal. Leave was, however, refused. He appealed to the Court of Appeal against the order of refusal, by the High Court, of leave to appeal but lost. In 1983,the plaintiff once again instituted, this time in the High Court of Kwara State, an action leading to this appeal claiming as per paragraph 12 of his statement of claim:

“12. Wherefore the plaintiff claims from the defendant as per his writ of summons

(i) an order of possession and

(ii) an account stated for rent collected (sic) by the defendant on the plaintiff” s adjudged land as mosne (sic) profit.”

The defendant, in his statement of defence, raised a plea of res judicata. He pleaded thus:

“The defendant pleads that the Area Court Grade II No.1 Ilorin which gave judgment on the title to the land and gave an order of demolition of the defendant’s house as well as the Upper Area Court. Ilorin

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which quashed the order of demolition are competent court with jurisdiction over the issues before them. The defendant pleads that the claim now before this Honourable Court is res judicata by reason that it has been heard and tried by the Area Court Grade II No.1 Ilorin and Upper Area Court, Ilorin. The defendant in answer to all the claims of the plaintiff will therefore at or before: the hearing of this suit raise by way of preliminary objection on a point of law the issue that the present case is res judicata. The claim for possession and  removal (or demolition) of defendant’s house now before this Honourable Court was adjudicated upon by the  Upper Area Court, Lokoja, the High Court (Appellate Division) Ilorin and now pending in the Federal Court of Appeal Kaduna. The defendant pleads that it is an abuse of judicial process for the plaintiff to be seeking the same relief in this Honourable Court and also in the Federal Court of Appeal, Kaduna. Wherefore the  defendant pleads that the present action be dismissed with costs on the grounds that it is res judicata.  scandalous, vexatious and an abuse of the process of this Court,”

This was followed by a motion for dismissal of the suit. At the hearing of the motion certified copies of all previous proceedings between the parties on the land in dispute were annexed to the affidavits relied on. In his ruling, the learned trial Judge, (Ibiwoye, J.) overruled the plea of res judicata set up by the defendant and ordered that the case be heard on its merit. In coming to his conclusion, the learned Judge observed: “It will be recalled that the two issues dealt with by the various courts previously are

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title to and possession of a piece of land situate at No. I Amilegbe Close,  Ilorin. In the present suit the writ of summons reads:. The plaintiff’s claim against the defendant is for (i) an order of possession wherein the defendant is to vacate the plaintiff’s land and remove his structure thereon and (ii) for an account to be taken and payment of the sum due in respect of the structure on the plaintiffs adjudged land which the defendant let to some tenants without the permission and/or consent of the plaintiff.’ The writ of summons in this case as stated above shows that the plaintiff/respondent is claiming an additional subject matter which is an account stated as in (ii) above. The additional subject-matter has distinguished this present suit from the previous ones where the subject-matter were only title and possession, notwithstanding the fact that the parties are the same. The question of rendering an account is a completely new issue which has not been judicially decided upon and therefore the doctrine of res judicata is inapplicable in this case. This is the principle enunciated in the cases of Okusanya & Anor. v. Akanwo & Anor. (1941) 7 WACA 1 and Bakare Ibiyemi & 3 ors. v. Lawani Olusoji & Anor. (1957) WNLR 25. In this case therefore, the plea of res judicata must fail since the plaintiff/respondent has added a new claim as shown in paragraph 12 of his statement of claim different from the previous proceedings and which has not been previously adjudicated upon.” The defendant appealed to the Court of Appeal (Kaduna Division) against the trial Judge’s ruling. That Court (coram: Aikawa, Ogundere and Achike, J.C.A.)allowed the appeal and upheld the defendant’s plea of res

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judicata. In his lead judgment. with which the other Justices of Appeal agreed, Ogundare, J.C.A. observed: “Be that as it may, from the exposition of the law above, could rent or mean (sic) profits on the appellant’s house wrongfully erected on respondent’s land be deemed an ancillary remedy to the order of possession earlier granted? Clearly not, as there was no relationship of landlord and tenant between the parties. It is another way of asking for damages for trespass. The dictum of Wigram, Vice Chancellor in Henderson’s case covers adequately the question herein; the plaintiff should have claimed damages for trespass as an additional remedy against the defendant in the court of first instance, that is ,’ the Area Court Grade II, Ilorin. He is therefore estopped from relitigating the matter even though through his inadvertence or negligence he failed to put forward every subject of his case particularly damages for trespass. The plea of res judicata succeeds, so does the appeal. The High Court of Kwara State in its appellate jurisdiction lacked jurisdiction to entertain the matter.” The plaintiff was displeased with this judgment and appealed to this Court upon one ground of appeal which reads: “I. The learned Justices of the Court of Appeal erred in law in holding that the new suit was caught by the doctrine of res judicata. Particulars of errors -in-law i. The doctrine can only apply where the new relief arose at the time the original suit was filed in the Court of first instance. ii. The doctrine can not apply where the injury or damage continues and has not abated.” The defendant, on 20n/88, filed, pursuant to Order 8. Rule 3 of the Rules of this Court then in force, a respondent’s notice of intention

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to contend that the decision of the Court below be varied. The notice reads in part:

“TAKE NOTICE that upon the hearing of the above appeal the respondent herein intends to contend that the           decision of the court  below dated that 21st day of April, 1988 shall be varied as follows: By quashing that part        of the judgment which held that the respondent herein is a trespasser and that he committed contempt of           court by flouting the court’s orders.”

The penultimate paragraphs of the grounds relied on are 7-10 which read:

“7. The two decisions (i.e. that of the Area Court Grade II No. 1, Ilorin and that of the Lokoja Upper Area Court) which gave the appellant herein possession of the land have been quashed.

8. There is therefore no valid court decision awarding the possession of the land to the plaintiff. The finding of the Court of Appeal, Kaduna that the defendant  flouted all courts’ orders declaring him a trespasser is not supported by the facts of the case. The defendant never flouted any court’s order.
9. The defendant is not a trespasser because the disputed land is not in the plaintiff’s possession. It is because the land is not  in his possession that he instituted the suit in Lokoja Upper Area Court and in the Ilorin High Court (which is the subject of this appeal) claiming possession from the defendant. Trespass is not founded on ownership which was awarded to the plaintiff but on possession which was never validly awarded to him.
10. The question of whether or not the defendant is a

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trespasser was not .an issue before the Court of Appeal, Kaduna, neither were counsel given an opportunity to address the court on the issue before the court made           its erroneous decision that the defendant is a trespasser.”

In the appellant’s brief filed by Ijaodola, Esq. learned counsel for the plaintiff, he contends that the complaint of defendant/respondent ought to have come by way of a cross-appeal and not by way of a contention to vary the Court of Appeal decision. In reply to learned counsel’s objection to the procedure adopted by the defendant in complaining against a part of the decision of the court below, Chief Oshe, counsel for the defendant, in respondent’s brief argues as follows:-

“4.39 The appellant herein submitted in clause 3.1 of his brief of argument that the complaint of the respondent herein that he was wrongly called a trespasser should have been made a cross-appeal instead of a notice of a contention to vary the said decision.

4.40 It is our humble submission that a respondent would need to file a cross-appeal if the decision of the lower court complained against is fundamental and crucial to the respondent’s case.

4.41 The respondent’s case in the trial High Court of Ibiwoye, J. and in the Court of Appeal is that the suit was  res judicata.

4.42 After holding that the suit is res judicata and that the trial High Court had no jurisdiction to hear it, the pronouncement that the defendant is a trespasser is besides the issue and the proper procedure

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is to pray this Honourable Court to vary that decision.

4.45 It is therefore for the purpose of convenience that we are praying this Honourable Court to vary that part of the judgment of the Court of Appeal.”

With profound respect to learned counsel for the respondent. I can find no merit in his argument justifying the procedure adopted by him. The purpose of a respondent’s notice to vary the decision of the court below has been  restated in a number of cases such as Lagos City Council v. Ajayi (1970) 1 All NLR. 291 at 296: Eliochin Nig. Ltd. v. Mbadiwe (1986) 1 NWLR (Pt.14) 47): Adeleye v. Akin-Olugbade (1987) 3 NWLR (Pt.60)214,and Ogunlade v Adeleye (1992) 8 NWLR (Pt.2601-10). The defendant’s case does not fall within any of the principles enunciated in these cases. Since he is dissatisfied with a part of the judgment of the court below on the ground that, that part is not supported by the facts of the case, the defendant could not have wanted to retain that part but to have it set aside. He, therefore, Ought to have appealed against the pan he is complaining about as being erroneous. In the circumstance, the respondent’s notice is incompetent and it is hereby struck out by me. I now come to the main appeal. I have set out at the beginning of this judgment the issue for determination as set out in the appellant’s brief. I have carefully considered the submissions of learned counsel in their respective written briefs of argument. One fact stands clear and that is that in all actions previous to the action leading to this appeal, the plaintiff was adjudged the owner of the land in dispute between the parties. What has led to the protracted

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litigations between them is the quashing by the Upper Area Court, Ilorin of the order of the Ilorin Area Court Grade 2 to the effect that the defendant quit the land. The reason given by the Upper Area Court was that the order was not asked for by the plaintiff. I will not concern myself in this judgment with the correcness of that decision as that judgment is not on appeal before us. To remedy the situation, the plaintiff brought an action before the Upper Area Court, Lokoja specifically asking that the defendant quit his land by removing his building therefrom. The plaintiff succeeded and an order to the effect was made. Defendant’s appeal to the High Court of Kwara State presided over by Kawu, CJ. (as he then was) succeeded and the order of the Upper Area Court. Lokoja was quashed. In the course of the oral bearing of this appeal the question arose whether the proceedings of the latter court were not a nullity for the reason that the court was not properly constituted. Learned counsel for both parties addressed us on it. It is necessary to determine this issue at this stage for, unless the decision of the High Court of Kwara State given on 9/6/81 was valid, all talk about res Judicata would amount to much ado about nothing. Mr. Ijaodola submitted that the High Court of Kwara State was not properly constituted when it decided the defendant’s appeal before it on 9/6/81. It is learned counsel’s submission that by the Kadi of the Sharia Court sitting with two of the

Judges of the High Court when determining the appeal, the composition of the court offended against section 238 of the 1979 Constitution.  Mr. Oshe at first contended that in as much as a Judge of the High Court sat, the court

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was properly constituted and that it was immaterial that one who was not a Judge of that court sat along. Learned counsel later conceded that the High Court proceedings were a nullity. He asked for an order of retrial of the defendant’s appeal to that court. It is not in dispute that the 1979 Constitution was already in force when the defendant appealed to the High Court of Kwara State against the judgment of the Upper Area Court, Lokoja. Section 238 of the Constitution provides for the Constitution of the High Court of a State. The section reads:-

“238. For the purpose of exercising any jurisdiction conferred upon it under this Constitution or any law. A  High Court of a State shall be duly constituted if it consists of at least one Judge of that court.”

The record of the High Court reveals that in determining the defendant’s appeal to it, one Alhaji U.Y. Abdullahi, who is not a Judge of that court but a Kadi of the Sharia Court sat along with the Chief Judge and another Judge of the Court. That composition clearly offended against section 238 of the Constitution. What is the effect of this contravention? It was laid down by this Court in Madukolu & Ors v. Nkemdilim (1962) 1 All NLR 581, (1962) 2 SCNLR 341, that any defect in the competence of a court renders the proceedings before it a nullity, a defect of competence being extrinsic to the adjudication. The competence of a court is well ,described in that oft quoted dictum of Bairamian, F.J. where at pages 589-590 and 348 of the Reports, the learned Judge observed: “… , a court is competent when –

(I) It is properly constituted as regards numbers and

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qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction: and (3) the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction, any defect in competence is fatal, for the proceedings are not a nullity however well conducted and decided: the defect is extrinsic to the adjudication.”

It is clear from the record before us that the High Court of Kwara State was not properly constituted having regard to section 238 of the Constitution and its proceedings in the hearing and determination of the defendant’s appeal to it are, therefore. a nullity. I am not unaware of section 63(1) of the High Court Law, Cap.49 Laws of Northern Nigeria, 1963 (applicable in Kwara State) which provides that:

“63(1) In the exercise of its jurisdiction under section 62 the High Court shall be constituted of three members two of whom shall be Judges of the High Court and one of whom shall be a Judge of the Sharia Court of Appeal.”

and that the High Court Law is an existing law within the meaning assigned to that expression in section 274 of the Constitution. But as section 63(1) is not in conformity with section 238 of the Constitution. it is of no avail in saving the proceedings of the High Court of Kwara State here concerned. It is invalid as it stands – See Olawoyin v. Commissioner of Police (1961) NSCC 90 at 96-97, (1961) All NLR 213 at 222-223, (1961) 1 SCNLR 210 at 217-218, where Brett. FJ delivering the opinion of this Court said:

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“The argument against the validity of section 59(c) of the Northern Region High Court Law (which is on the same terms as section 63(1) of the High Court Law under consideration), as expressed by Chief Rotimi Williams, is as follows: Chapter IV of the Constitution of Northern Nigeria does not enable anyone but a qualified High Court Judge to sit as a member of the High Court; therefore any Law which makes such provision is inconsistent with the Constitution and is. to the extent of that inconsistency, void under 5.5 of the Constitution of the Federation; section 3 of the Nigeria (Constitution) Order in Council, 1960, only saves an existing Law if it is in conformity with the Constitution, and section 4 only saves existing courts so far as is consistent with the provisions of the Order. In my opinion this argument must be accepted. The derailed provisions which the Constitution contains for the qualifications and independence of the Judges of the High Court could be defeated if it were within the power of a Regional legislature to enable other persons to take part in the exercise of the jurisdiction of the Court. The point at issue is not whether the section in question is a reasonable one in the conditions of Northern Nigeria, but whether the Constitution leaves it open to the regional legislature to enact such a section without express authority. I do not consider that it does. The Constitution establishes a number of special authorities for the exercise of particular functions, and it seems clear on principle that any law which provides for the sharing of those functions with other persons must, unless the Constitution expressly permits it, be regarded as inconsistent with the Constitution. It is significant that

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section 48 of the Constitution of Northern Nigeria expressly authorises the Director of Public Prosecutions of the region to exercise his powers through members of his staff or to delegate them to the Director of Public Prosecutions of the Federation; similarly, section 64 authorises the Public Service Commission of the Region to delegate its powers. For these reasons I think the answer to the first question referred to the court must be that section 59(c) of the Northern Region High Court Law has been invalidated to the extent referred to in the question.” (brackets are supplied by me) Section 63(1) however derived its validity prior to 1st October, 1979 when the 1979 Constitution came into force, from section 51(3) of the Constitution of Northern Nigeria, 1963 which was enacted after the decision of this court in Olawoyin v. Commissioner of Police (supra). It provides: “When the High Court is exercising jurisdiction on appeals from a decision of a native court a member of the Sharia Court of Appeal may sit as an additional member of the High Court in such manner and under such conditions as may be prescribed by any law enacted by the Legislature of the Region.” There is no provision in the 1979 Constitution similar to section 51(3) of the Constitution of Northern Nigeria, 1963. Having declared the proceedings of the High Court of Kwara State in Appeal No. KWS/I0A/81 a nullity, it only remains for me to say that the judgment of the Upper Area Court Lokoja given on 26/3/81 ordering the defendant to vacate the land in dispute “by removing his house therefrom for use by the plaintiff not later than 26/6/81” and granting possession of the land to the plaintiff subsists. Chief Oshe has invited us to order a

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retrial of the defendant’s appeal to the Kwara State High Court. We cannot do this as the judgment of that court is not on appeal before us. It has become necessary to determine the validity of the judgment of that court since only judgments of competent courts can be pleaded as constituting estoppel per rem judicatam. And if it appears that the judgment relied on to sustain the plea was not given by a competent court, the plea must fail. This is the course taken by this court in Madukolu & Ors v. Nkemdilim (supra). I have refrained from pronouncing on the correctness of the decision of the High Court as this does not arise for consideration in this appeal. See also section 53 of the Evidence Act.

Ogundere, J.C.A., in his lead judgment held that “the High Court of Kwara State in its appellate jurisdiction lacked jurisdiction to entertain the matter.” He gave no reasons for coming to this conclusion and I can find none. With profound respect to the learned Justices of the court below, I can find no justification for their so holding. That court had (and presumably still has) jurisdiction to entertain appeals from the Upper Area Court. What went wrong was its constitution in the hearing of the particular appeal we are concerned with in this case which robbed it of its competence. The question of its jurisdiction or lack of it was not even an issue before the court below. I now come to the issue of res judicata pleaded by the defendant and sustained by the Court of Appeal. The rule of estoppel per rem judicatam requires that where a final decision is given by a court of competent jurisdiction the parties thereto cannot be heard to contradict that decision in any subsequent litigation between them respecting the

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same subject matter. As a plea, the decision operates as a bar to subsequent litigation and as evidence, it is conclusive between the parties to it: sections 54 and 55, Evidence Act. I do not consider it necessary, for the purpose of this appeal to dwell in depth with the principles governing the plea of estoppel per rem judicatam or res judicata, as it is properly referred to. On the facts of this case, I fail to see how the defendant against whom there are subsisting judgments of courts of competent jurisdiction in respect of the land in dispute can now defeat plaintiff’s claims by a plea of res judicata. The plaintiff was adjudged the owner of the land in dispute by all the courts. By a subsisting judgment, The Upper Area Court Lokoja ordered him to vacate the land. He refused to obey the law. What estoppel can he now raise to bar plaintiff’s claims for possession and mesne profits? I cannot fathom.

Ogundere, J.C.A, in his lead judgment observed: “Be that as it may, from the exposition of the law above, could rent or mean (sic) profits on the appellant’s house wrongfully erected  on respondent’s land be deemed an ancillary remedy to the order of possession earlier granted. Clearly not, as there was no relationship of landlord and tenant between the parties. It is another way of asking for damages for trespass. The dictum of Wigram, Vice Chancellor in Henderson’s case covers adequately the question herein; the plaintiff should have claimed damages for trespass as an additional remedy against the defendant in the court of first instance that is at the Area Court Grade II Ilorin. He is therefore estopped from relitigating the matter even though through his

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inadvertence or negligence he failed to put forward every subject of his case particularly damages for trespass. The plea of res judicata succeeds, so does the appeal. The High Court of Kwara State in its appellate jurisdiction lacked jurisdiction to entertain the matter.” With respect to the learned Justices of the court below, what is to be determined at the stage the case reached when the trial Judge gave his ruling on defendant’s motion to dismiss the suit was not whether the plaintiff could succeed in any or all of his claims but whether there were previous decisions of courts of competent jurisdiction in respect of the subject matter now in dispute which would bar the plaintiff from raising his present claims. Even if the defendant could not be described as a trespasser prior to the judgment of the Upper Area Court Lokoja .. and on this I reserve my opinion – he has clearly become one since the judgment of that court which granted plaintiff possession of the land in dispute and ordered the defendant to vacate it. By holding out since 1981, the defendant has been in continuous trespass. The plaintiff is entitled to sue for any trespass arising after the last proceedings between the parties. See: K. Chellaram & Sons v. G.B. Ollivant Ltd. 10 WACA 77. He was obviously misled by the void decision of the High Court of Kwara State into suing again for possession. As the learned trial Judge observed, and quite rightly in my view, plaintiff’s claim (ii) has never been of any contention between the parties in the previous litigations and could not. and did not, arise out of the claim for title brought in 1975. From all I have been saying above, it is my respectful view that the court below was in error to hold that defendant’s plea

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of res judicata succeeded. I therefore, allow this appeal, set aside the judgment of the court below and remit the case to the High Court of Kwara State for it to be determined on its merit. Having regard to the time these proceedings have taken, I order that the hearing be conducted with utmost despatch. It is for the above reasons that I agree with the conclusion reached by my learned brother Omo, J.S.C. in his judgment. I abide by the order for costs made in the said judgment.

: I have had the advantage of reading in draft, the judgment of my learned brother, Omo, J.S.C., with which I am in total agreement. I have also read, in draft the judgment of my learned brother, Ogundare, J.S.C., with which I also agree. In allowing the appeal and remitting the case to the High Court of Kwara State to be determined on its merit, there is the issue which this court raised Suo motu in the course of hearing the appeal as to whether the High Court. Kwara State was properly constituted when it heard and set aside the appeal from the decision of the Lokoja Upper Area Court. In other words, having regard to the provision of section 238 of the 1979 Constitution, and in view of the fact that the coram of the High Court that heard the appeal from the Lokoja Upper Area Court included a person other than a Judge of that High Court, was that court properly constituted? If it was not, would its judgment not be a nullity? The Court of Appeal had had to decide the same issue in Mallam Ado & Anor v. Hajia Dije (1984) NCLR Vol. 5, 260, where Karibi-Whyte, J.C.A. (as he then was) said on page 277 as follows:- “It is important in the

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construction of S.238 to bear in mind the use of the word ‘that’ ,  in referring to the Court. The Court so referred to is the High Court, and not any other or in association with any other court. The provision of S.238 of the Constitution is to be found in Part IIA, and should be construed by reference to the other sections associated with it To construe section 238 to include other Judges outside that  suggests, and can only assume a reference to section C of Part II with respect to Judges of the Customary Court of Appeal, who are referred to in S. 245(1)(b) as ‘Judges’. This is because S.240(2)(b) which refers to Kadis of the Sharia Court of Appeal cannot be so construed. It will therefore be absurd to construe S.238 to include a Kadi, and Judges other than those of the High Court. In my view, although S.238 enables more than one Judge of the High Court to sit and hear appeals in the High Court; it does not enable any  Judge of any other court, or any other person to sit as a member of the High Court. This, in my view, is consistent with the scheme of the Constitution in relation to the spheres of operation and exercise of jurisdiction of the courts, and accords with the ordinary meaning of the section, in relation to other sections of the Constitution -. See Canadian Sugar Refining Co. v.R (1898) AC 741; Attorney-General v. Brown (1920) 1 KB 773 at page 791.” and His Lordship went on page 281 of the report thus: “I have held earlier in this judgment that the scheme of the Constitution and the express provision of S.238 thereof, do not contemplate any other, than a Judge of the High Court silting in that court. Hence, the High Court constituted as it was, in this appeal, by two High Court Judges, and a Khadi of the

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Sharia Court of Appeal, was incompetent to hear the appeal, and therefore heard the appeal without jurisdiction.” Clearly the judgment of the High Court, Kwara State, is in the circumstance, a nullity, having been given without jurisdiction. For the fuller reasons in the two judgments, I allow the appeal and abide by all the orders made therein including the orders for costs.
Appeal allowed.