Hon. Emmanuel Bwacha V. Hon. Joel Danlami Ikenya & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C.

The 1st Respondent in this appeal was the Plaintiff at the Federal High Court Kaduna where he filed his action against the Appellant and the 2nd and 3rd Respondents as Defendants in an Originating Summons posing the following questions for determinations.

“1. Whether in view of Section 34 of the Electoral Act, 2006 which requires political parties wishing to substitute candidates to give ‘cogent and verifiable’ reasons, the 2nd Defendant can substitute the Plaintiff’s name as a Senatorial candidate for no reason at all.

2. Whether in view of the judgment of the Federal High Court, Abuja dated the 27th March, 2007, wherein the Economic and Financial Crimes Commission’s list of ‘corrupt’ candidate and the Report of the Administrative Panel of Inquiry otherwise called the Ayua Panel were quashed, the 2nd Defendant can rely on the list and Report to substitute the Plaintiff’s name with that of the 3rd Defendant.”

The Plaintiff/1st Respondent then proceeded and claimed the following reliefs –

1. A declaration that by virtue of Section 34 of the Electoral Act, 2006, Political Parties seeking to Substitute candidates must give ‘Cogent and Verifiable’ reason for the substitution.
2. A declaration that the 1st Defendant’s letter dated 5th February, 2001 which substituted the Plaintiff’s name with that of the 3rd Defendant as P.D.P. candidate for southern Taraba Senatorial District, is null, void and of no effect having failed to meet the requirement of Section 34 of the Electoral Act.
3. A declaration that in view of the judgment of the Federal High Court, dated 27th March, 2007, wherein the E.F.C.C. list and the administrative panel of inquiry report were quashed, the said list and report can no longer be a basis for substituting the Plaintiff’s name with that of the 3rd Defendant.
4. A declaration that by virtue of Section 34 of the Electoral Act, 2006, Political Parties seeking to substitute candidates must give cogent and verifiable reason for the substitution.
5. An order compelling the 1st Defendant to disregard the said letter of the 2nd Defendant and to re-insert or re-install the Plaintiff’s name as the P.D.P. Senatorial Candidate for Taraba South in the forthcoming elections in all its Registers, Books, Ballot and other official documents’”

The Appellant who was the main target in the claims in the suit’ reacted by not only filing a counter affidavit to the affidavit in support of the Originating Summons but also filed a Notice of Preliminary Objection supported by an affidavit to the action against him. The ground of the Preliminary objection was that the Plaintiff/1st Respondent was estopped from raising the issue of substitution of candidate in his action, the same having been raised and adjudicated upon in an earlier suit between the parties’ by the Federal High Court, Abuja in suit No. FHC/ABJ/M/126/07.

After hearing the parties on the Originating Summons and the Preliminary Objection to it, the learned trial Judge in a considered judgment delivered on 5th April, 2007, dismissed the Preliminary Objection and granted the reliefs claimed by the Plaintiff/1st Respondent. The Appellant, who was not satisfied with the decision of the trial Court, appealed against it to the Kaduna Division of the Court of Appeal, which after hearing the appeal, in a unanimous decision given on 18th July, 2008, dismissed the appeal and affirmed the decision of the trial Court. The Appellant who is still dissatisfied with the judgment of the Court of Appeal, is now on a further and final appeal to this Court and had submitted in his Appellant’s brief of argument the following three issues for the determination of the appeal.

The issues are –

“1. Whether from the facts and circumstances of this case, the learned Justices of Court of Appeal were right when they held that the issue of substitution raised by the 1st Respondent in the Federal High Court, Kaduna was not caught by the doctorine of issue estoppel.

(Encompassing grounds 1 and 2 of the Notice of Appeal).

2. Whether the learned Justices of the Court of Appeal were right when they held that the reason contained in the letter for substitution of the 1st Respondent was not cogent and verifiable. (Encompassing ground 3 of the Notice of Appeal).
3. Whether the learned Justices of the Court of Appeal were right when they held that the fact that the claim of the 1st Respondent in his Originating Summons at the trial Court was not brought under any subsection of Section 34 of the Electoral Act 2006 is inconsequential (Encompassing ground 4 of the Notice of Appeal).”

These three issues were adopted by the 1st and 3rd Respondents in their Respondents brief of argument. The 2nd Respondent, Independent National Electoral Commission, was absent and not represented on the day this appeal was heard. The Court was however satisfied that the 2nd Respondent was not only duly served with all the processes in this appeal, comprising the Appellant’s brief of argument and the 1st and 2nd Respondents’ brief of argument respectively, but was also served with the hearing notice to attend the hearing of the appeal. This stand taken by the 2nd Respondent is in line with the provision of Order 6 Rule 6(1) of the Rules of this court which gives parties who do not have active interest in any appeal in which they are parties, not to file separate briefs other than the one filed by the other parties. The absence or non-participation in this appeal by the 2nd Respondent is therefore covered by the rules of Court.

In his argument in support of the first issue for determination in this appeal, learned senior Counsel for the Appellant referred to the second relief claimed by the 1st Respondent in his suit No. FHC/ABUJ/M/126/07 filed at the Federal High Court Abuja, the decision of that Court on the second relief given on 27th March, 2007, the reliefs claimed by the 1st Respondent in his fresh suit No. FHC/KD/80/07 filed at the Federal High court Kaduna on 30th March, 2007 and submitted that the Court below erred in law when it held that the issue of substitution raised by the 1st Respondent in his suit at the Kaduna Federal High Court, was not caught by the doctrine of issue estoppel considering the fact that the same issue of substitution was earlier canvassed by the 1st Respondent in an earlier suit filed by him at the Abuja Federal High Court. Learned senior Counsel referred to the definition of the word ‘substitution’ in the decision of this Court in Ugwu v. Ararume (2007) 12 N.W.L.R. (Pt. 1048) 367 at 478 and argued that the issue of substitution was infact raised and determined between the parties in the earlier suit at the Abuja Federal Court, to deprive the 1st Respondent of the right to raise the same issue again in his later action at the Kaduna Federal High Court on account of issue estoppel. A book, The Doctrine of Res-judicata by Spencer Bower, Turner and Handley at page 189 and a number of cases including Hoystead (1926) A.C. 155, Ikeni v. Efamo (2001) 10 N.W.L.R. (Pt. 720) 1 at 11, A.N.P.P. v. Senator Usman Albishir and Another S.C. 133/2009 delivered on 19th February 2010, Braithwaite v. M.S.A. Lines (1999) 13 N.W.L.R. (Pt. 36) 611, Ijale v. A.G. Leventis Co. Ltd. (1959) All N.L.R. 762, (1959) S.C.N.L.R. 255 and Agu v. Ikewibe (1991) 3 N.W.L.R. (Pt. 180) 385 were cited and relied upon by the learned senior Counsel in support of this submission. Learned senior Counsel concluded on this issue by strongly submitting that on the authorities relied upon in the books and cases cited, it was wrong in law for the Court below to have held that because the parties in suit No. FHC/ABU/M/126/07 filed in the Federal High Court Abuja are mostly different from the parties in suit No. FHC/KD/CS/80/2007 filed at the Federal High Court Kaduna, the plea of issue estoppel was inapplicable, pointing out that if the Court below had approached the issue of parties with the distinction between cause of action estoppel and issue estoppel in mind, the decision of that Court would have been different.

For the 1st Respondent his learned Counsel pointed out that the trial Court and the Court below were right in their findings that the parties and the issues in the two suits brought by the 1st Respondent at the Federal High Court Abuja and Kaduna respectively, are distinctively different and therefore the plea of issue estoppel does not arise are in accordance with the law; that for a plea of issue estoppel to be successfully raised, the three conditions stated in the cases of P.D.P. v. K.S.I.E. and 4 others (2006) 3 N.W.L.R.(Pt.968) 565 at 622; Oshoboja v. Amuda (2000) 13 N.W.L.R. (Pt. 685) 427 at 441 and Ikeni v. Efamo (2001) 10 N.W.L.R. (pt. 720) 1, must be satisfied. These conditions according to the learned Counsel, include that the same question must be for decision in both proceedings, which means that the question for decision in the current suit must have been decided in the earlier proceedings, that the decision relied upon to support the plea of issue estoppel must be final, and that the parties must be the same. Learned Counsel finally argued on this issue that in the present case, the parties in the two suits are not the same and the issue are also not the same and that being the case, the plea of issue estoppel cannot succeed.

In the 3rd Respondent’s brief of argument, its learned Counsel whose oral arguments were also on the same line, strongly submitted that the Court of Appeal was right in holding that the plea of issue estoppel would not apply to this case since the parties in suit No. FHC/ABJ/M/126/07 filed in the Federal High Court Abuja were substantially different from the parties in suit No. FHC/KD/CS/80/2007 filed in the Federal High Court, Kaduna and that no conclusive decision was given on the issue of substitution by the Federal High Court, Abuja. Citing and relying on several decisions of this Court on the conditions for the application of the plea of issue estoppel such as Ebba v. Ogodo (2000) 10 N.W.L.R. (Pt. 675) 387 at 407, ikeni v. Efamo (2001) 10 N.W.L.R. (Pt.720) 1 at 15, Oyerogba v. Olaopa (1998) 3 N.W.L.R. (Pt. 968) 565 at 622, Kalu v. Uzor (2004) 12 N.W.L.R. (Pt. 886) 1 at 33, Ogboga v. Ugwuegbu (2003) F.W.L.R. (Pt. 161) 1825 and Omnia Nigeria Ltd. v. Dyktrade Ltd (2007) All F.W.L.R. (Pt. 394) 201 at 239, learned Counsel urged this Court to resolve this issue against the Appellant.

What calls for determination in the first issue in this appeal is whether the Court below was right in holding that the case of the Plaintiff/1st Respondent before the trial Federal High Court Kaduna was not caught or affected by the doctrine of issue estoppel. The doctrine of issue estoppel has been traced to the English case of Duchess of Kingston (1775 – 1802) All E.R. Rep 623, but its formulation has not been fixed or static. It has been expanded in several cases to meet circumstances which call for application of the policy of law that underlines the doctrine of estoppel per rem iudicatam, namely that there must be an end to litigation. Such extension of the doctrine is found in Fidelitus Shipping Co. Ltd. v. V/O Export-Chleb (1965) 2 All E.R. 4 at 10 where it was applied to issues determined at the interlocutory stage. The fact that the doctrine has been received into our laws in this Country by a long line of authorities is not at all in doubt. In Ladega & Ors. v. Durosimi & Ors. (1978) N.S.C.C. 175 at 179 Eso JSC stated the principle thus –