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Judgement of the Court
Delivered by
Augustine Nnamani. J.S.C.
In this suit which started in the Grade II Area Court of Benue State, the respondent/plaintiff claimed against the defendant/appellant for title to a piece of farm land at Ubwage. The Area after hearing the parties and their witnesses, preferred the case of the plaintiff and entered judgment in his favour on 23rd October, 1981. The Defendant appealed to the High Court of Benue State sitting at Gboko which in exercise of its appellate jurisdiction, allowed his appeal and entered judgment in his favour. This was on 18th March, 1983. The battle between the parties was far from over for the respondent herein appealed against the Court judgment to the Court of Appeal, Jos Judicial Division. That (coram: Agbaje, J.C.A. as he then was, Jacks and W.T. Macaulay. J.J.C A.) on 3rd February, 1986 allowed the appeal, set aside the judgment of the High Court and entered judgment in favour of the plaintiff (respondent herein). The defendant/appellant has now appealed to this Court.
When this appeal came up for hearing on 4th December, 1989, appellant was present but his counsel was absent. His counsel, J.A. Yaji, Esq. had written to the Court informing it of a near fatal accident in which he was involved. He regretted his inability to be present but applied to the Court to take the appeal as per his brief of argument dated 19th June, 1989 and filed in this Court. That request was granted. Learned counsel to the respondent, I.A. Nomshan, Esq. who was present then adopted the respondent’s brief of argument dated 3rd July, 1989 and duly filed in this Court. The appeal has therefore been taken as argued in the briefs of argument of the parties.
Before proceeding to the issues arising in this appeal. I think I ought to deal with the preliminary objection raised by respondent’s counsel on page 7 of his brief of argument. There he had challenged as incompetent the 4th of the 4 grounds of appeal filed by the appellant to this court. In the said ground the appellant complained that,
(4) The learned justices of the Appeal Court erred in law in refusing to entertain the plea of res judicata, and lack of jurisdiction raised by the defendant at the trial Court and which was wrongly overruled by the High Court on the ground that the names of the parties were not the same.
