(2017) LPELR-43319(CA)

Transcription

1 NABA'U & ORS v. KASHIM & ORS CITATION: ADAMU JAURO In the Court of Appeal In the Jos Judicial Division Holden at Jos ON WEDNESDAY, 12TH JULY, 2017 Suit No: CA/J/1/2016 UCHECHUKWU ONYEMENAM Before Their Lordships: HABEEB ADEWALE OLUMUYIWA ABIRU 1. ALHAJI MOHAMMED NABA'U 2. UMARU DUDU 3. MUSA KALLI 4. MOHAMMED DANLADI 5. ALHAJI UMARU 6. ALHAJI GARBA 7. MOH'D SANI DAN SALAMI 8. USMAN AHMADU 9. ABUBAKAR AHMADU 10. AWALU BABBA 11. MURTALA IBRAHIM 12. MOHAMMED DAN GAI 13. GARBA MAKAWUYA 14. AHMADU BAYE 15. UMARU DAN BANGOLE 16. MALLAM HUSSAINI Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal 1. ALHAJI SHERIFF GONI KASHIM 2. MAHIRU MUSTAPHA 3. MUSA DOLO 4. UMARA NA ALHAJI ADAMU 5. MALLAM TUKUR 5. YUSUF HALILU KURU 7. GENDE GORI And - Appellant(s) - Respondent(s)

2 RATIO DECIDENDI 1. ACTION - PLEADINGS: Nature of pleadings "Now, it is trite law that pleadings do not amount and cannot constitute evidence and for averments in pleadings to be useful, evidence must be led on them - Oguejiofor Vs Siemens Ltd (2008) 2 NWLR (pt 1071) 283 and Nika Shipping Co. Ltd Vs Lavina Corporation (2008) 16 NWLR (Pt 1114) 509. Where a party fails to adduce evidence in support of his pleadings, he is deemed to have abandoned the pleadings - Dingyadi Vs Wamako (2008) 17 NWLR (Pt 1116) 395. Where a defendant fails to prove the averments in his pleadings, he did not take the necessary steps to join issues with the claimant in respect of the averments in the statement of claim and the statement of claim remains unchallenged and the oral evidence of the claimant is deemed sufficient proof of his case - Asika Vs Atuanya (2008) 17 NWLR (pt 1117) 484. Also, the effect of a defendant's failure to call evidence in defense of the claims against him at the trial is that he is presumed to have admitted the case made against him by the claimant - Ifeta vs Shell Petroleum Development Corporation of Nigeria Ltd (2006) 8 NWLR (Pt 983) 585 and Okolie vs Marinho (2006) 15 NWLR (Pt 1002) 316."Per ABIRU, J.C.A. (Pp , Paras. C-C) - read in context 2. CONSTITUTIONAL LAW - RIGHT TO FAIR HEARING: What the concept of fair hearing entails; effect of breach of right to fair hearing "Fair hearing simply is a hearing be it administratively or judicially conducted within the circumference of due process. Black's Law Dictionary, 9th edition page 789. It is a matter which must be established by evidence. UKACHUKWU v. PDP (2014) 17 NWLR (pt. 1435) 734. This principle was well expounded by the apex Court in the case of PAM V. MOHAMMED (2008) 76 NWLR (PT. 1112) 7 AT 68 wherein Tobi, JSC stated thus: "Fair hearing, in essence means giving equal opportunity to the parties to be heard in the litigation before the Court. See INEC v. ALHAJI MUSA (2003) 3 NWLR (PT. 806) 72. Fair hearing means a trial conducted according to all legal rules formulated to ensure that justice is done to the parties. See NTUKIDEM v. OKO (1986) 5 NWLR (PT. 45) 909; UNION BANK OF NIGERIA LIMITED V. NWAOKOLO (1995) 6 NWLR (Pt. 400) 127. Fair hearing in relation to a case means the trial of a case or the conduct of the proceedings therein in accordance with the relevant laws, rules of Court and principle of natural justice. See EKPETO V. WANOGHO (2004) 18 NWLR (PT. 905) 394. See also BRIFINA LTD. v. INTERCONTINENTAL BANK LTD. (2003) 5 NWLR (pt. 814) 540; ARDO v. INEC & ORS (2017) LPELR - SC. 123/ Having in mind that fair hearing envisages the right of a party to be heard at every material stage of the proceedings and it is the process which is conducted in accordance with relevant laws and rules; the consequence of the trial Court's reliance on the judgment in SUIT NO: YBS/GDM/01/2001 to enter judgment against the Appellants and its failure to consider the evidence before it in the circumstances of this case amounts to breach of the Appellants' constitutional right to fair hearing as guaranteed by Section 36 of the 1999 Constitution as amended. The effect therefore is that the proceedings of the trial Court is a nullity."per ONYEMENAM, J.C.A. (Pp , Paras. C-F) - read in context

3 3. COURT - DUTY OF COURT: Duty of Court not to go out of its way to fish out facts or evidence "The learned trial Court could only rely on the proceedings and judgment in SUIT No: YBS/GDM/01/2001; to highlight the fact that there exists a judgment which the Respondents could rely on for a plea of res judicata. This is so because the judgment though exists in that it is in the Court's file but was not before the Court for it to examine its contents for the purposes of determining whether the condition precedents for res judicata are present. The trial Court was in error to rely on the said judgment as the basis of his decision that the Appellants' case was res judicata. For all intents and purposes, the judgment sought to be relied on for a plea of res judicata which is in the Court's record only lies dormant in the Court's file until the same is tendered and a witness demonstrates the document by at least making reference to the parties, issues and subject matter of the suit leading to the judgment. This is to say that the mere presence of a document before a Court or in the Court's record does not obliterate the party who seeks to make use of such document his legal duty of linking the document to his case. Failure to link up or tie a document before a Court, or tendered in Court to his case by a party, at best amounts to dumping the document before the Court for the document to remain dormant in the Court's file. It is not the Court's duty to go in search of any document present in the Court's file that might assist a party in his case which obviously amounts to the Court descending into the arena. This makes the instant case different from the case of AGBAHOMOVO v. EDUYEGBE (supra); relied on by the Respondents' counsel. In AGBAHOMOVO case; the process stared in the face of the Court by reason of the amended process unlike in the instant case where the process was an annexure to a motion which was not subject of the judgment and as such the Court needed and actually went out of his way to seek for it and used it to arrive at its decision. There is nothing more this can mean but that the trial Court went on a voyage of discovery to fight the case of the Respondents which in law occasions a miscarriage of justice. LADOJA v. AJIMOBI & ORS (2016) LPELR - SC. 12 /2016 (CON) (REASONS); CPC V. INEC (2011) 78 NWLR (pt. 1279) 493; OMISORE & ANOR. v. AREGBESOLA & ORS. (2015) 15 NWLR (PT. 1482) 205. In effect any documentary evidence lying before a Court no matter how relevant to a case must have a lending voice explaining its existence before a Court can base a decision on the same."per ONYEMENAM, J.C.A. (Pp , Paras. A-B) - read in context

4 4. EVIDENCE - ESTOPPEL PER REM JUDICATAM/RES JUDICATA: What a court needs to consider in determining whether the defence of estoppel per rem judicatam has been established "In determining whether the issues, the subject matter of the two actions and the parties are the same, the Court is permitted to study the pleadings, the proceedings and the judgment in the previous action. The Court is entitled to look at the Judge's reason for his decision and his notes of the evidence and is not restricted to the record. It may also examine other relevant facts to discover what was in issue in the previous case. It is entirely a question of fact- Bruce-Akumngio vs Harry (2001) 11 NWLR (Pt. 723) 88, Adone vs Ikebudu (2001) 14 NWLR (Pt 733) 385, Ekong Vs Udo (2002) 16 NWLR (Pt 792) 1, Anwoyi vs. Shodeke (2006) 13 NWLR (Pt 996) 34. Thus, where a party fails to tender the record of the proceedings of the Court that decided the matter relied on to plead estoppel per rem judicatam, the plea is doomed to fail as the party will be incompetent to give oral evidence of the terms of the judgment by virtue of Section 128(1) of the Evidence Act- Agumuo Vs Azubuike (1999) 5 NWLR (pt 604) 649. Also, in the absence of the certified true copies of the judgments in the previous cases being relied upon in support of the plea of res judicata, there will be nothing to compare with the present case in determining any or all the conditions were met to sustain the plea- Akayepe Vs Akayepe (2009) 11 NWLR (Pt 1152) 217. Further, where a party pleads res judicata on the strength of previous judgments wherein the parcels of land in dispute were called different names from their real names, it will be presumptuous of the party to seek to show the real names of the parcels of land in a later action only by affidavit evidence without filing pleadings and presenting cogent oral evidence thereon - Bruce-Akumngio vs Harry (2001) 11 NWLR (Pt 723) 88. Similarly, it has been held that a plea of estoppel per rem judicatam cannot be sustained on the strength of a mere certificate of judgment without necessary facts on the issue being set up in the pleadings and cogent evidence led thereon - Abubakar vs Federal Mortgage Bank Ltd (2002 )4 NWLR (Pt 756) 29. A Court before whom a plea of estoppel per rem judicatam is raised has a duty to carefully investigate the matter in order to decide whether the plea applied; a superficial or perfunctory investigation may led to grave injustice - Oseni Vs Oniyide (1999) 13 NWLR (Pt 634) 258. Thus, in Olokotintin Vs Sarumi (1997) 1 NWLR (Pt 480) 222 where there was no clear cut evidence showing the description of the land in dispute in the earlier suit, the Court of Appeal held that though the parties and the claim in the earlier suit and the present one were the same, the plea of res judicata was not sustainable. Applying these established principles on a plea of estoppel per rem judicatam to what occurred in the present case, this Court must say it is at a loss to understand the basis upon which the lower Court upheld the case of the Respondents on estoppel per rem judicatam. Reading through the judgment, the lower Court referred to the judgment that the Respondents pleaded was entered in favour of the first Respondent, but it failed to state how it came into possession of the said judgment. It is elementary law that a document does not become evidence until it is tendered and admitted as an exhibit by a Court and until this is done, the contents of the document should not be read out in Court or evaluated to determine the weight to attach to it - Tea vs Commissioner of Police (1963) NNLR 77, Queen vs Mboho (1964) NMLR 49, Adegoke Motors Ltd vs Adesanya (1989) 3 NWLR (Pt 109) 250, Asuquo vs Eyo (2014) 5 NWLR (Pt 1400) 247. A Court cannot and should not rely on a document not tendered in evidence before it - Wassah vs Kara (2015) 4 NWLR (Pt 1449) 374. There was no evidence led upon which the lower Court could have upheld the plea of estoppel per rem judicatam of the Respondents."Per ABIRU, J.C.A. (Pp , Paras. B-D) - read in context 5. EVIDENCE - ESTOPPEL PER REM JUDICATAM/RES JUDICATA: Doctrine of res judicata "Res judicata which is the binding effect of a judgment as to matters actually litigated and determined in one action on later controversies between the parties connotes a doctrine barring a party from re-litigating an issue determined against that party in an earlier action, even if the second action differs significantly from the first. The acid test is whether the same evidence will support both cases. See: Black's Law Dictionary 9th edition 2011; see also: IGWEGO & ORS v. EZEUGO & ANOR. (1992) LPELR (SC) (1992) 7 SCNJ 284."Per ONYEMENAM, J.C.A. (Pp. 8-9, Paras. F-B) - read in context

5 6. EVIDENCE - ESTOPPEL PER REM JUDICATAM/RES JUDICATA: Conditions necessary to ground a defence of res judicata "In our legal parlance, it is now set and firmed that the conditions precedent to a successful plea of res judicata are as follows: (a) "There must be an adjudication of the issues joined by the parties. (b) The parties or their privies as the case may be must be the same in the present case as in the previous case. (c) The issues and subject matter must be the same in the previous case as in the present case. (d) The adjudication in the previous case must have been by a Court of competent jurisdiction (e) The previous decision must have finally decided the issue between the parties, that is the right of the parties must have been finally determined." per Kekere-Ekun, JSC. OLEKSANDR & ANOR V. LONESTAR DRILLING COMPANY LIMITED & ANOR. (2015) LPELR (SC) (pp PARAS. D - A); THE HONDA PLACE LTD. v. GLOBE MOTORS LTD. (2005) 14 NWLR (PT. 495) 273."Per ONYEMENAM, J.C.A. (Pp. 9-10, Paras. C-A) - read in context 7. EVIDENCE - DOCUMENTARY EVIDENCE: Ways of proving the contents of a document "The above however presupposes that the Court called upon to determine whether an action is caught up by the principle of res judicata must have the judgment before it as this is the only way the Court could satisfy itself of the presence of the condition precedents set out above. In the instant case, there is no dispute that the judgment in Suit No: YBS/GDM/CV/08/2001 which the Respondent based its defence of res judicata was pleaded but was not tendered in evidence neither did the Respondent adduce any evidence on it. The only light thrown on the parties and subject matter of the judgment is in the address of the Respondent's counsel. Well of course it is an elementary principle of law that no matter how brilliant the brief of a counsel might be, the same cannot be nor take the place of evidence. A counsel's address or brief is just a mere summary of facts admitted, proved or deemed conceded in the trial and the relevant law applicable to the facts before the Court. A counsel through his brief seeks to sway the mind of the Court in favour of his client. OMISORE & ANOR. v. AREGBESOLA & ORS. (2015) LPELR -SC. 204/2015. In any case even if the Respondents adduced evidence in the Court, the effect of the nonproduction of the judgment would have still been the same as the only evidence allowed in law for the proof of the content of the said judgment is the production of the certified true copy or the original of the said judgment. The production of the judgment in suit No: YBS/GDM/CV/08/2001 was indispensable. Oral evidence which will amount to giving evidence on the content of a document will not be admitted to prove the existence, parties and subject matter of the judgment in question. AGBAREH & ANOR. V. MIMRA & ORS. (2008) 2 NWLR (pt. 1071) 378; DA ROCHA V. HUSSAIN (1958) 3 FSC 89; S.C.O.A. (NIG.) LTD. v. BOURDEK LTD. (1990) 3 NWLR (PT. 138) 380."Per ONYEMENAM, J.C.A. (Pp , Paras. B-E) - read in context 8. EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF: Whether a plaintiff can rely on the weakness of the case of the defendant to prove his own case in action for declaration of title "...a claimant must succeed on the strength of his case and not rely on the weakness of the defence and the absence of a statement of defence or evidence led by the defendant does not exonerate the responsibility on a claim to prove his claim - Harka Air Services Ltd Vs Keazor (2006) 1 NWLR (pt 960) 160 and Ogunyade Vs Oshunkeye (2007) 15 NWLR (pt 1057) 218. This is particularly more so, as in the instant case, where a claimant seek a declaratory relief because declaratory reliefs are not granted either based on admissions or default of defence -Akaninwo vs Nsirim (2008) 9 NWLR (pt 1093) 439 and Olubodun Vs Lawal (2008) 17 NWLR (Pt 1115) 1."Per ABIRU, J.C.A. (Pp , Paras. C-A) - read in context

6 9. EVIDENCE - ESTOPPEL PER REM JUDICATAM/RES JUDICATA: Conditions for a successful plea of estoppel per rem judicatam "It is settled law that for a plea of estoppel per rem judicatam to succeed, the party relying on it must establish the following requirements or preconditions, namely: i. that the parties or their privies are the same in both the previous and present proceedings; ii. that the res or the subject matter of the litigation in the two cases is the same; iii. that the claim, in case of cause of action estoppel or the issue or issues in dispute, in case of issue estoppel is the same; iv. that the decision relied upon to support the plea is valid, subsisting and final; and v. that the Court that gave the decision relied upon is a Court of competent jurisdiction. Unless all these constituent elements or requirements of the doctrine are fully established the plea cannot be sustained. They must be satisfied conjunctively and failure of any of them is fatal to the plea of res judicata- Fadiora vs Gbadebo (1978) All NLR 42, Ezewani vs Onwordi (1986) 4 NWLR (Pt 33) 27, Odievwedje vs Echanokpe (1987) 1 NWLR (Pt 52) 633, Okoye Vs Nwulu (1988) 2 NWLR (Pt 76) 359. The question whether or not a previous judgment operates as estoppel per rem judicatam in a later action is entirely a matter of law as applied to the established facts Ezeanya vs Okeke (1995) 4 NWLR (Pt 388) 142, Okukuje vs Akwido (2001) 3 NWLR (Pt 700) 261. The burden is on the party who sets up the plea of estoppel to conclusively establish that all the pre-conditions for its application exist. He has to marshal facts that would convince the Court that the new action instituted by the claimant is not merely a waste of time of the Court but equally an abuse of the process of Court. The Court must steer clear of giving judgment in a case where a defence of res judicata is raised and there are no strong cogent and convincing evidence glaringly clear as to persuade the Court to act in the manner the proponent of the defence pleads -Dagaci of Dere Vs Dagaci of Ebwa (2006) 7 NWLR (Pt 979) 382, Gege vs Nande (2006) 10 NWLR (Pt 988) 256, Dike-Ogu vs Amadi (2008); 12 NWLR (Pt 1102) 650, Polyvalent (Nig) Ltd vs Akinbote (2010) 8 NWLR (Pt 1197) 506. All the pre-conditions must be proved and none can be presumed - Ike vs Ugboaja (1993) 6 NWLR (Pt 301) 539."Per ABIRU, J.C.A. (Pp , Paras. B-B) - read in context 10. PRACTICE AND PROCEDURE - RECORD OF COURT PROCEEDINGS: Whether a court is entitled to look at the record in its possession to make use of the information contained in it "It is correct that a Court is entitled to look at the contents of its file or records and refer to it in consideration of any matter before it. AGBAREH & ANOR. v. MIMRA & ORS. (2008) 2 NWLR (PT. 1071) 378; AGBAHOMOVO v. EDUYEGBE (1999) 3 NWLR (PT. 594) 170; NDAKAYO v. DANTORO (2004) 13 NWLR (PT. 889) 187; OSAFILE V. ODI (NO. 1) (1990) 3 NWLR (PT. 157) 130. In AGBAREH & ANOR. v. MIMRA & ORS. (supra); the apex Court viewed that the fact that parties did not give evidence nor tender the agreements between them was of no moment or consequence given the circumstances leading to the appeal. And what were the circumstances, there was no dispute between the parties to the said agreements, that the agreements did not exist or that they did not sign or execute the same. Also that since the agreements were part of the record sent to the apex Court from the Court below, it means the said agreements were before the two Courts below and that the Court is entitled to look into its record and make use of the processes found therein. The decision in AGBAHOMOVO v. EDUYEGBE (supra); was referred to. In the said case of Agbahomovo, the Supreme Court said an amended process does not cease to exist in the eye of the law as the same was neither expunged nor struck out. That such amended process remains part of the records of proceedings for which the Court cannot shut its eyes against, although such amended process cannot be considered as the basis of the case of a party or the judgment of the Court. See also: OWONYIN v. OMOTOSHO (1961) 2 SCNLR 57; where Obaseki, J.S.C. said an amended statement of defence cannot form the basis of the judgment of a Court but can only be used to highlight the important issues raised in the amended statement of defence."per ONYEMENAM, J.C.A. (Pp , Paras. A-D) - read in context

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8 UCHECHUKWU ONYEMENAM, J.C.A.(Delivering the Leading Judgment): The appeal is founded on the judgment of the High Court of Yobe State sitting in Potiskum in Suit No: YBS/GDM/HC/001/11 delivered on 27th May, 2014; wherein l. W. JAURO J. dismissed the claim of the Appellant in its entirety. At the trial Court the Appellant who was the Plaintiff by his Writ of Summons and Statement of Claim sought for the following reliefs; to wit: (a) A declaration that the Plaintiffs are the legal and rightful owners of the farmland. (b) A declaration that the entry into the said farmlands and claim of ownership by the 1st Defendant is illegal (c) An order of this honourable Court restraining the 1st, 2nd and 3rd Defendants from taking any further action in respect of the said farmland in dispute pending the determination of this matter. (d) A perpetual injunction restraining the Defendants his agents, privy or whomsoever acting on the instruction of the Defendant from further trespassing on the farmlands. (e) Cost of this action. The Appellants' case is that they are the joint owners of the farm land situate at the 1

9 Northern, Western and Southern parts of Goniri village of Geidam Local Government Area of Yobe State. The referred land was deforested by the Appellants jointly about 35 years ago upon the same being granted them by the then village Head Bulama of Goniri in the person of Bulama Mustapha. That since after the deforestation, the Appellants were in unchallenged peaceful and quiet possession till after the death of Bulama Mustapha when the Respondents forcefully trespassed into the farmland. That the two criminal charges against some of the Appellants as a result of the 1st Respondent's complain in relation to the farmland in dispute were both decided in favour of the Appellants. At trial, the Appellants called 3 witnesses and tendered one exhibit marked Exhibit A which is the record of proceedings of the judgment in respect of the charge of Conspiracy, Trespass and Mischief; against the 1st and 2nd Appellants. The Respondents did not call witnesses nor testify except for the statement of the 1st Respondent that; "his land is hectares and he has no case with anybody if his land is secured for him as per the judgment he got at Damaturu. He has nothing 2

10 to defend in this case and that is his position and he rested his case." The Court on 24th February, 2014 visited the locus in quo with both parties adequately represented. From the inspection and evidence at the locus, the learned trial Judge found that all the Appellants' land except for the land of the 2nd Appellant were all part of the land the Respondents got judgment in their favour in suit No: YBS/GDM/CV/08/2001. He therefore dismissed the Appellants' suit. Dissatisfied with the said judgment the Appellants filed an appeal on 6th August, Parties duly exchanged their briefs of argument and the appeal was heard on 18th May, While Mr. B. A. Zike adopted the Appellants' brief and reply brief; Mr. A. J. Igoche who held brief for D.B. Sunama adopted the Respondents' brief. In the Appellants' brief filed on 24th May, 2016 but deemed on 12th October, 2016; Mr. I. U. Makeri who settled the brief raised 4 issues for the determination of this appeal. The 4 issues are: a. Whether having regard to the state of pleadings filed and exchanged by the parties, the trial judge was right when he concluded that, it will be a futile exercise for 3

11 the trial Court to venture to hear the matter again. b. Whether having regard to the state of evidence before the lower Court as presented by the three (3) witnesses of the plaintiffs and lack of evidence presented by the Defendants, it could still be a futile exercise for the lower Court not to venture to hear the matter. c. Whether the Plaintiff have proved their case having regard to their pleading and evidence before the lower Court. d. Whether having regard to the facts pleaded by the parties and the evidences thereon, the trial Court was not altogether wrong in law when it found that the plaintiff's claim on the farmland has already been determined by the High Court No. 3, Damaturu in suit No. YBS/GDM/CV/08/2001 when there was no such evidence of issue Estoppel before the trial Court. Mr. D. B. Sunama who prepared the Respondents' brief that was filed on 6th February, 2017 but deemed properly filed and served on 15th February, 2017 adopted the 4 issues raised by the Appellants' counsel. He however argued issues 1 and 2 together and issue 4 as issue 3. He did not submit on issue 3. Equally the Appellant's counsel made submissions on 4

12 issues 1, 2 and 4. He did not submit on issue 3. I accordingly deem issue 3 abandoned and the same is struck out. Looking at the issues raised by parties as it were; l am of the view that issues 1 and 2 are submerged in issue 4 and again the said issue 4 can be re -couched in a more elegant manner to determine the appeal. The re - couched issue is: Whether by the facts and evidence before the Court the learned trial Judge was right when he held that it will be an exercise in futility to hear and determine the Appellants' suit owing to estoppel by res judicata. ARGUMENTS ON THE SOLE ISSUE Mr. Makeri in the Appellants' brief referred to the statement of the 1st Respondent when they were called to open their defence at page 38 lines 8-10 of the record. He also referred to the cross examination of PW1 by the 1st Respondent, and the lead evidence of PW2. He drew the attention of this Court to the fact that the Respondents merely made mention of a judgment of High Court 3 of Damaturu which was in their favour over the land in dispute but neither exhibited the said judgment nor tendered it in evidence for the trial Court to pass it through the res 5

13 judicata test; and for the Appellants to be heard on the estoppel the said judgment will form. He cited: AMINU v. HASSAN (2014) ALL FWLR (pt. 725) 205; ADEYEMI v. AWOSIKA (2010) All FWLR (pt. 713) It was further the learned counsel's argument that the Appellants proffered evidence before the trial Court to establish their claim that they were granted and have been in possession of all that farm land situate North, South and the Western part of Goniri village of Giadam Local Government Area, for over 35 years ago after clearing the said land. He noted that despite the said evidence, the learned trial Judge at page 49 lines 20 to 22 of the record found that it was a futile exercise to hear and determine the matter again. He submitted that the failure of the trial Court to consider the evidence of the Appellants is a breach of the constitutional right to fair hearing of the appellants. He contended that the fact that the Appellants' evidence was not considered means they were not heard, he relied on: Section 36 (1) of the Constitution; MOBIL PRODUCING (NIG) UNLTD V. EFFIONG (2013) ALL FWLR 1941; OGBESHE v. IDAM (2014) ALL FWLR (PT. 723) 992; ADEYEMI v. 6

14 AWOSIKA (2014) ALL FWLR (PT. 713) The learned counsel urged the Court to hold that failure of the trial Court to apply the principles of estoppel before arriving at its conclusion made the decision wrong. Also that the judgment of the trial Court should be set aside for lack of fair hearing. He urged the Court to declare the decision of the learned trial Judge a nullity for failure to hear the Appellants. In response, Mr. Sunama for the Respondents admitted that the Respondents did not lead evidence nor tendered in evidence the judgment in Suit No: YBS/GDM/CV/08/2001 which the trial Court relied upon to dismiss the action of the Appellant on res judicata. He however referred the Court to paragraphs 5,6,7,8 and 9 of the Respondents, joint statement of defence; and 1st to 7th Respondents' reply to statement of claim dated 20th October, 2011; he then submitted that a trial Court is competent to look into its record and rely on a documentary evidence therein even when such document was not tendered in evidence. In his address the learned counsel led evidence on the parties and judgment terms in SUIT NO: YBS/GDM/CV/08/2001. He further argued that 7

15 since the referred judgment was an exhibit attached to the Respondents' Motion No: YBS/HC/GSH/28M/11 filed on 27th September, 2011 seeking to dismiss the suit subject of this appeal for being res judicata, the trial Court was right in considering the said exhibit to make its finding. He referred to: ABGAHOMOVO v. EDUYEGBE (1999) 3 NWLR (PT. 594) 170; OWONYIN V. OMOTOSHO (1961) 2 SCNLR 57; AKINOLA v. V.C. UNILORIN (2004) 11 NWLR (PT. 885) 616. Mr. Sunama further submitted that it does not amount to a breach of the right to fair hearing of the Appellant for a trial Court to look at the document in its file which is not tendered as an exhibit. He referred to: AGBAISI & ORS. V. EBIKOREFE & ORS. (1997) 4 NWLR (502) 630. The learned counsel for the Respondents urged the Court to resolve the issue in their favour and to dismiss the appeal. I will make reference to the relevant submissions of the learned counsel for the Appellants in their reply brief as I resolve the issue. RESOLUTION OF ISSUE Res judicata which is the binding effect of a judgment as to matters actually litigated and determined in one action on later controversies 8

16 between the parties connotes a doctrine barring a party from re-litigating an issue determined against that party in an earlier action, even if the second action differs significantly from the first. The acid test is whether the same evidence will support both cases. See: Black's Law Dictionary 9th edition 2011; see also: IGWEGO & ORS v. EZEUGO & ANOR. (1992) LPELR (SC) (1992) 7 SCNJ 284. In our legal parlance, it is now set and firmed that the conditions precedent to a successful plea of res judicata are as follows: (a) "There must be an adjudication of the issues joined by the parties. (b) The parties or their privies as the case may be must be the same in the present case as in the previous case. (c) The issues and subject matter must be the same in the previous case as in the present case. (d) The adjudication in the previous case must have been by a Court of competent jurisdiction (e) The previous decision must have finally decided the issue between the parties, that is the right of the parties must have been finally determined." per Kekere-Ekun, JSC. OLEKSANDR & ANOR V. LONESTAR DRILLING COMPANY 9

17 LIMITED & ANOR. (2015) LPELR (SC) (pp PARAS. D - A); THE HONDA PLACE LTD. v. GLOBE MOTORS LTD. (2005) 14 NWLR (PT. 495) 273. The above however presupposes that the Court called upon to determine whether an action is caught up by the principle of res judicata must have the judgment before it as this is the only way the Court could satisfy itself of the presence of the condition precedents set out above. In the instant case, there is no dispute that the judgment in Suit No: YBS/GDM/CV/08/2001 which the Respondent based its defence of res judicata was pleaded but was not tendered in evidence neither did the Respondent adduce any evidence on it. The only light thrown on the parties and subject matter of the judgment is in the address of the Respondent's counsel. Well of course it is an elementary principle of law that no matter how brilliant the brief of a counsel might be, the same cannot be nor take the place of evidence. A counsel's address or brief is just a mere summary of facts admitted, proved or deemed conceded in the trial and the relevant law applicable to the facts before the Court. A counsel through his brief seeks to sway the 10

18 mind of the Court in favour of his client. OMISORE & ANOR. v. AREGBESOLA & ORS. (2015) LPELR -SC. 204/2015. In any case even if the Respondents adduced evidence in the Court, the effect of the nonproduction of the judgment would have still been the same as the only evidence allowed in law for the proof of the content of the said judgment is the production of the certified true copy or the original of the said judgment. The production of the judgment in suit No: YBS/GDM/CV/08/2001 was indispensable. Oral evidence which will amount to giving evidence on the content of a document will not be admitted to prove the existence, parties and subject matter of the judgment in question. AGBAREH & ANOR. V. MIMRA & ORS. (2008) 2 NWLR (pt. 1071) 378; DA ROCHA V. HUSSAIN (1958) 3 FSC 89; S.C.O.A. (NIG.) LTD. v. BOURDEK LTD. (1990) 3 NWLR (PT. 138) 380. It was the contention of the counsel for the Respondents that the failure of the Respondents to tender the judgment they pleaded as res judicata was cured by the learned trial Judge looking into the processes in the Court's file and relying on the certified true copy of the referred judgment. The 11

19 Appellants' quarrel here is the learned trial judge's finding that: "I must say that this case is straight forward. The visit to the farmlands in dispute no doubt revealed to the Court all that was on ground. Since all the area over which the Plaintiffs lay claim other than the 2nd Plaintiff are areas upon which judgment has been given by a Court of coordinate jurisdiction in favour of the 1st Defendant, it will be a futile exercise for this Court to venture to hear the matter again. Consequently, all the Plaintiff's claim over the same farmland measuring HA already determined by the High Court No. 3 Damaturu in suit No. YBS/GDM/CV/09/2001 be and is hereby dismissed." In the Appellants' reply brief, Mr. Makeri noted that the learned trial Judge did not disclose his source of the contents of the judgment which was not tendered for him to be able to arrive at the above conclusion on res judicata. At pages 19 to 122 of the additional record referred to by the learned counsel for the Respondents are: a motion on notice YBS/HC/GSH/28M/11 seeking to set aside SUIT NO: YBS/GDM/001/2011; proceedings in SUIT No: YBS/CDM/ 01/ 2001; and the judgment 12

20 in suit No: YBS/ GDM/ 01/ Both the proceedings and judgment so described were annexures to the affidavit in support of motion on notice YBS/HC/GSH/28M/11. It is correct that a Court is entitled to look at the contents of its file or records and refer to it in consideration of any matter before it. AGBAREH & ANOR. v. MIMRA & ORS. (2008) 2 NWLR (PT. 1071) 378; AGBAHOMOVO v. EDUYEGBE (1999) 3 NWLR (PT. 594) 170; NDAKAYO v. DANTORO (2004) 13 NWLR (PT. 889) 187; OSAFILE V. ODI (NO. 1) (1990) 3 NWLR (PT. 157) 130. In AGBAREH & ANOR. v. MIMRA & ORS. (supra); the Apex Court viewed that the fact that parties did not give evidence nor tender the agreements between them was of no moment or consequence given the circumstances leading to the appeal. And what were the circumstances, there was no dispute between the parties to the said agreements, that the agreements did not exist or that they did not sign or execute the same. Also that since the agreements were part of the record sent to the apex Court from the Court below, it means the said agreements were before the two Courts below and that the Court is entitled to look into its record and make 13

21 use of the processes found therein. The decision in AGBAHOMOVO v. EDUYEGBE (supra); was referred to. In the said case of Agbahomovo, the Supreme Court said an amended process does not cease to exist in the eye of the law as the same was neither expunged nor struck out. That such amended process remains part of the records of proceedings for which the Court cannot shut its eyes against, although such amended process cannot be considered as the basis of the case of a party or the judgment of the Court. See also: OWONYIN v. OMOTOSHO (1961) 2 SCNLR 57; where Obaseki, J.S.C. said an amended statement of defence cannot form the basis of the judgment of a Court but can only be used to highlight the important issues raised in the amended statement of defence. From the above, let me mirror the scenario in the present case. By virtue of a motion on notice YBS/HC/GSH/28M/11 seeking to set aside suit No: YBS/GDM/001/2011 which annexed the proceedings in SUIT NO: YBS/GDM/01/2001 and the judgment in said suit; found at pages 19 to 122 of the record; referred proceedings and judgment were before the trial Court. The trial Court therefore by the Supreme Court decisions 14

22 referred to above cannot shut its eyes against the documents which are in its file but the same cannot form the basis for its decision. The learned trial Court could only rely on the proceedings and judgment in SUIT No: YBS/GDM/01/2001; to highlight the fact that there exists a judgment which the Respondents could rely on for a plea of res judicata. This is so because the judgment though exists in that it is in the Court's file but was not before the Court for it to examine its contents for the purposes of determining whether the condition precedents for res judicata are present. The trial Court was in error to rely on the said judgment as the basis of his decision that the Appellants' case was res judicata. For all intents and purposes, the judgment sought to be relied on for a plea of res judicata which is in the Court's record only lies dormant in the Court's file until the same is tendered and a witness demonstrates the document by at least making reference to the parties, issues and subject matter of the suit leading to the judgment. This is to say that the mere presence of a document before a Court or in the Court's record does not obliterate the party 15

23 who seeks to make use of such document his legal duty of linking the document to his case. Failure to link up or tie a document before a Court, or tendered in Court to his case by a party, at best amounts to dumping the document before the Court for the document to remain dormant in the Court's file. It is not the Court's duty to go in search of any document present in the Court's file that might assist a party in his case which obviously amounts to the Court descending into the arena. This makes the instant case different from the case of AGBAHOMOVO v. EDUYEGBE (supra); relied on by the Respondents' counsel. In AGBAHOMOVO case; the process stared in the face of the Court by reason of the amended process unlike in the instant case where the process was an annexure to a motion which was not subject of the judgment and as such the Court needed and actually went out of his way to seek for it and used it to arrive at its decision. There is nothing more this can mean but that the trial Court went on a voyage of discovery to fight the case of the Respondents which in law occasions a miscarriage of justice. LADOJA v. AJIMOBI & ORS (2016) LPELR - SC. 12 /2016 (CON) 16

24 (REASONS); CPC V. INEC (2011) 78 NWLR (pt. 1279) 493; OMISORE & ANOR. v. AREGBESOLA & ORS. (2015) 15 NWLR (PT. 1482) 205. In effect any documentary evidence lying before a Court no matter how relevant to a case must have a lending voice explaining its existence before a Court can base a decision on the same. In conclusion therefore I hold that the learned trial Judge was wrong to rely on the judgment in SUIT No: YBS/ GDM/01/200l to dismiss the suit of the Appellant. The legal effect of this is two pronged. Firstly, the learned trial Judge went into the archives of his file and dug out the judgment in SUIT No: YBS/GDM/01/2001 which was not tendered as exhibit at the hearing of the suit and relied on the same to enter judgment against the Appellant who was not heard on the document. Not being in evidence as an exhibit, the Appellants did not have the opportunity to either object to its admissibility, cross examine on it or address the Court on its applicability in the matter as res judicata. This in my view tantamount to the trial Court basing its judgment against the Appellants on a document he was not heard on. Secondly, the effect is that the 17

25 suit of the Appellants was dismissed without considering their evidence in proof of their claim. There is no obscurity from the finding of the learned trial Judge at page 49 lines 18 to 22 of the record that he refused, failed and or neglected to consider the evidence placed before him by the Appellants in proof of their claim. Either way, the question that need be answered is whether the Appellants were accorded their right to fair hearing. Fair hearing simply is a hearing be it administratively or judicially conducted within the circumference of due process. Black's Law Dictionary, 9th edition page 789. It is a matter which must be established by evidence. UKACHUKWU v. PDP (2014) 17 NWLR (pt. 1435) 734. This principle was well expounded by the apex Court in the case of PAM V. MOHAMMED (2008) 76 NWLR (PT. 1112) 7 AT 68 wherein Tobi, JSC stated thus: "Fair hearing, in essence means giving equal opportunity to the parties to be heard in the litigation before the Court. See INEC v. ALHAJI MUSA (2003) 3 NWLR (PT. 806) 72. Fair hearing means a trial conducted according to all legal rules formulated to ensure that justice is done to the parties. See NTUKIDEM 18

26 v. OKO (1986) 5 NWLR (PT. 45) 909; UNION BANK OF NIGERIA LIMITED V. NWAOKOLO (1995) 6 NWLR (Pt. 400) 127. Fair hearing in relation to a case means the trial of a case or the conduct of the proceedings therein in accordance with the relevant laws, rules of Court and principle of natural justice. See EKPETO V. WANOGHO (2004) 18 NWLR (PT. 905) 394. See also BRIFINA LTD. v. INTERCONTINENTAL BANK LTD. (2003) 5 NWLR (pt. 814) 540; ARDO v. INEC & ORS (2017) LPELR - SC. 153/ Having in mind that fair hearing envisages the right of a party to be heard at every material stage of the proceedings and it is the process which is conducted in accordance with relevant laws and rules; the consequence of the trial Court's reliance on the judgment in SUIT NO: YBS/GDM/01/2001 to enter judgment against the Appellants and its failure to consider the evidence before it in the circumstances of this case amounts to breach of the Appellants' constitutional right to fair hearing as guaranteed by Section 36 of the 1999 Constitution as amended. The effect therefore is that the proceedings of the trial Court is a nullity. I resolve the sole issue in favour of the Appellant. 19

27 Appeal therefore succeeds and the same is allowed. I accordingly set aside the judgment of the High Court of Borno State delivered on 27th May, 2014 in SUIT No: YBS/GDM/HC/001/11; for being a nullity. I order a retrial of the said matter before another Judge to be assigned by the Chief Judge of Yobe State. ADAMU JAURO, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother, UCHECHUKWU ONYEMENAM, JCA. I am in complete agreement with the reasoning and conclusion to the effect that the appeal is meritorious. I adopt the judgment as mine in allowing the appeal and also make an order for retrial. I abide by all consequential Orders made in the judgment. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, Uchechukwu Onyemenam, JCA. His Lordship considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions. I wish to make some comments for emphasis. This issue arising for determination in this appeal revolves around a 20

28 misunderstanding of the concept of proof of averments in pleadings and of the doctrine of estoppel per rem judicatam. The Appellants claimed for ownership of land and the sole defence of the Respondents was that the first Respondent had obtained judgment over the said parcel of land claimed by the Appellants in an earlier suit. The Appellants gave evidence in proof of their claims while the Respondents failed to lead evidence, oral or documentary, in proof of their defence. Now, it is trite law that pleadings do not amount and cannot constitute evidence and for averments in pleadings to be useful, evidence must be led on them - Oguejiofor Vs Siemens Ltd (2008) 2 NWLR (pt 1071) 283 and Nika Shipping Co. Ltd Vs Lavina Corporation (2008) 16 NWLR (Pt 1114) 509. Where a party fails to adduce evidence in support of his pleadings, he is deemed to have abandoned the pleadings - Dingyadi Vs Wamako (2008) 17 NWLR (Pt 1116) 395. Where a defendant fails to prove the averments in his pleadings, he did not take the necessary steps to join issues with the claimant in respect of the averments in the statement of claim and the statement of claim remains unchallenged and the 21

29 oral evidence of the claimant is deemed sufficient proof of his case - Asika Vs Atuanya (2008) 17 NWLR (pt 1117) 484. Also, the effect of a defendant's failure to call evidence in defense of the claims against him at the trial is that he is presumed to have admitted the case made against him by the claimant - Ifeta vs Shell Petroleum Development Corporation of Nigeria Ltd (2006) 8 NWLR (Pt 983) 585 and Okolie vs Marinho (2006) 15 NWLR (Pt 1002) 316. The duty on a trial Court in such circumstances is to proceed to consider the case of the claimant on the strength of the evidence led because a claimant must succeed on the strength of his case and not rely on the weakness of the defence and the absence of a statement of defence or evidence led by the defendant does not exonerate the responsibility on a claim to prove his claim - Harka Air Services Ltd Vs Keazor (2006) 1 NWLR (pt 960) 160 and Ogunyade Vs Oshunkeye (2007) 15 NWLR (pt 1057) 218. This is particularly more so, as in the instant case, where a claimant seek a declaratory relief because declaratory reliefs are not granted either based on admissions or default of defence -Akaninwo vs Nsirim (2008) 22

30 9 NWLR (pt 1093) 439 and Olubodun Vs Lawal (2008) 17 NWLR (Pt 1115) 1. Rather than consider the case of the Appellants, however, the lower Court upheld the defence of estoppel per rem judicatam pleaded by the Respondents, and in respect of which no evidence was led, and stated that considering the case of the Appellants would amount to a futile exercise. It is settled law that for a plea of estoppel per rem judicatam to succeed, the party relying on it must establish the following requirements or preconditions, namely: i. that the parties or their privies are the same in both the previous and present proceedings; ii. that the res or the subject matter of the litigation in the two cases is the same; iii. that the claim, in case of cause of action estoppel or the issue or issues in dispute, in case of issue estoppel is the same; iv. that the decision relied upon to support the plea is valid, subsisting and final; and v. that the Court that gave the decision relied upon is a Court of competent jurisdiction. Unless all these constituent elements or requirements of the doctrine are fully established the plea cannot be 23

31 sustained. They must be satisfied conjunctively and failure of any of them is fatal to the plea of res judicata- Fadiora vs Gbadebo (1978) All NLR 42, Ezewani vs Onwordi (1986) 4 NWLR (Pt 33) 27, Odievwedje vs Echanokpe (1987) 1 NWLR (Pt 52) 633, Okoye Vs Nwulu (1988) 2 NWLR (Pt 76) 359. The question whether or not a previous judgment operates as estoppel per rem judicatam in a later action is entirely a matter of law as applied to the established facts Ezeanya vs Okeke (1995) 4 NWLR (Pt 388) 142, Okukuje vs Akwido (2001) 3 NWLR (Pt 700) 261. The burden is on the party who sets up the plea of estoppel to conclusively establish that all the pre-conditions for its application exist. He has to marshal facts that would convince the Court that the new action instituted by the claimant is not merely a waste of time of the Court but equally an abuse of the process of Court. The Court must steer clear of giving judgment in a case where a defence of res judicata is raised and there are no strong cogent and convincing evidence glaringly clear as to persuade the Court to act in the manner the proponent of the defence pleads -Dagaci of Dere Vs Dagaci of Ebwa 24

32 (2006) 7 NWLR (Pt 979) 382, Gege vs Nande (2006) 10 NWLR (Pt 988) 256, Dike-Ogu vs Amadi (2008); 12 NWLR (Pt 1102) 650, Polyvalent (Nig) Ltd vs Akinbote (2010) 8 NWLR (Pt 1197) 506. All the pre-conditions must be proved and none can be presumed - Ike vs Ugboaja (1993) 6 NWLR (Pt 301) 539. In determining whether the issues, the subject matter of the two actions and the parties are the same, the Court is permitted to study the pleadings, the proceedings and the judgment in the previous action. The Court is entitled to look at the Judge s reason for his decision and his notes of the evidence and is not restricted to the record. It may also examine other relevant facts to discover what was in issue in the previous case. It is entirely a question of fact- Bruce- Akumngio vs Harry (2001) 11 NWLR (Pt. 723) 88, Adone vs Ikebudu (2001) 14 NWLR (Pt 733) 385, Ekong Vs Udo (2002) 16 NWLR (Pt 792) 1, Anwoyi vs. Shodeke (2006) 13 NWLR (Pt 996) 34. Thus, where a party fails to tender the record of the proceedings of the Court that decided the matter relied on to plead estoppel per rem judicatam, the plea is doomed to fail as the party will be incompetent to give 25

33 oral evidence of the terms of the judgment by virtue of Section 128(1) of the Evidence Act- Agumuo Vs Azubuike (1999) 5 NWLR (pt 604) 649. Also, in the absence of the certified true copies of the judgments in the previous cases being relied upon in support of the plea of res judicata, there will be nothing to compare with the present case in determining any or all the conditions were met to sustain the plea- Akayepe Vs Akayepe (2009) 11 NWLR (Pt 1152) 217. Further, where a party pleads res judicata on the strength of previous judgments wherein the parcels of land in dispute were called different names from their real names, it will be presumptuous of the party to seek to show the real names of the parcels of land in a later action only by affidavit evidence without filing pleadings and presenting cogent oral evidence thereon - Bruce- Akumngio vs Harry (2001) 11 NWLR (Pt 723) 88. Similarly, it has been held that a plea of estoppel per rem judicatam cannot be sustained on the strength of a mere certificate of judgment without necessary facts on the issue being set up in the pleadings and cogent evidence led thereon - Abubakar vs Federal Mortgage Bank Ltd 26