Adalma Tankers Bunkering Services Ltd & Anor V. Cbn & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Calabar Division or Court below or lower Court, delivered on Tuesday, the 19th May, 2009 Coram: Kumai Bayang Akaahs JCA (as he then was), Jean Omokri and Theresa Ngolika Orji-Abadua JJCA on appeal from the Federal High Court, Calabar, per C.C. Nwogwugwu J.

FACTS BRIEFLY STATED

The appellants were the plaintiffs at the trial Court and commenced the action in that Court by the particulars of claim filed on 15/7/1987. The reliefs claimed by them were contained in the Further Amended Statement of Claim and are as follows:

(a) A Declaration that the Defendants wrongfully took over and operated the 1st Plaintiff’s Lagos Account No. 1671 opened at 1st Defendant’s Lagos branch without allowing the 1st Plaintiff’s to further use or operate or do business with the said account No.1671.

(b) AN ORDER directing the Defendants to refund to the Plaintiffs the following sum/sums of money plus interest beginning from the date of transfers until judgment is delivered:

i. The sum of $88,506,88 transfer by Draft No.5082/1827 or its Naira equivalent in the sum N7,257,547.76 (Seven million, two hundred and fifty-seven thousand five hundred and forty-seven Naira, seventy-six Kobo) only based on an exchange rate of N82, to a Dollar.

ii. $32,184.00 transferred by Draft No. 00000782 or its Naira equivalent in the sum of N2639,088 (Two million, six hundred and thirty-nine thousand, and eighty-eight Naira) only based on an exchange rate of N82, to a Dollar.

iii. $179,615.70 transferred by Draft No. 5904/204 or its Naira equivalent in the sum of N14,728,487.40 (Fourteen million, seven hundred and twenty-eight thousand, four hundred and eighty-seven Naira, forty Kobo) only based on an exchange rate of N82 to a Dollar.

iv. $806,080 per payment on L/C/24/78 or its naira equivalent in the sum of N66,098,560 (Sixty-six million, and ninety-eight thousand, five hundred and sixty Naira) only based on an exchange rate of N82 to a Dollar.

v. N351,841.00 through I. J. Johnson and through letters of credit amounting to N1,631,588.21 and together N1,983,339.21 (One million, nine hundred and eighty-three thousand, three hundred and thirty-nine naira, twenty-one kobo). See pages 176-181 of the records. There were six Defendants to the suit at its inception. They are the 2nd and 4th Respondents as well as 2nd Appellant herein and 4th, 5th and 6th Respondents at the lower Court. The 4th Respondent as the 4th Defendant, though served with the process did not appear at all throughout the proceedings. The 2nd and 4th Respondents as well as the 3rd, 5th and 6th Respondents at the lower Court entered appearance as 1st, 2nd, 3rd, 5th and 6th Defendants respectively and were all represented jointly by counsel up to a point, after which the said Counsel without any notice of withdrawal of his appearance for other Defendants, reduced his appearance to that of the 1st defendant (now 2nd Respondent) alone.

The 1st Defendant filed an Amended Statement of Defence to the suit while the other Defendants filed no defence. This case remained for so long from 1987 on the cause list and did not proceed to trial until 1996. It went through 6 Judges of the Court in that process before it was finally heard by Hon. Justice G.O. Ezekwe.

The Plaintiffs called 2 witnesses in proof of their case. The 1st Defendant filed a defence to the suit and appeared by its counsel when trial commenced but subsequently stayed away from Court without any excuse. The other Defendants did not appear at all despite having notice of the proceedings.

While the trial was on-going, the 1st Respondent in this appeal declared the 2nd Respondent (1st Defendant) a distressed bank and bought it over for N1.00 for the purpose of its revitalisation. It then appointed 3rd Respondent as its Manager for the purpose of this revitalisation.

Following this development, the Plaintiffs (now 1st and 2nd Appellants) applied for leave to join the 3rd Respondent and 1st Respondent as 7th and 8th Defendants to the suit respectively. The application was granted as prayed. See page 141 of the records.

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The Plaintiffs then filed an Amended Statement of Claim to reflect the 3rd and 1st Respondents as the 7th and 8th Defendants respectively to the suit. These Respondents were served with the process of Court by courier services as ordered by the Court, but when trial resumed, they did not appear in Court. They stayed away consistently until judgment was delivered by the trial judge. The Appellants’ reliefs were granted in the judgment delivered by his Lordship. The Appellants, then took steps to enforce the judgment. It was only at this stage that the Respondents filed applications to set aside the judgment and/or declare it a nullity. Three applications were filed in this regard. The 1st application was filed by the 1st Respondent, the 2nd application was filed by the 4th Respondent and the last was filed by the 2nd and 3rd Respondents. The Appellants herein filed copious counter-affidavit to each of the applications and answered each of them succinctly and adequately. The 4th Respondent filed further affidavit. The Appellants took time again and swore to “additional Counter Affidavit” to put the record straight.

The 2nd and 3rd Respondents herein did not attend the Court to argue their application on the day the applications were fixed for argument. They did not attend the Court on subsequent adjourned dates as well. The trial Court however declined to strike out their application on the ground that all the three applications had been consolidated earlier and one of them could not be subsequently severed and struck out.

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The Court having heard individual arguments of the other Respondents and the Appellants’ reply thereto, the learned trial judge wrote a ruling and the applications to set aside the judgment of the trial Court were dismissed.

The 2nd and 3rd Respondents who did not move their motion for setting aside the judgment are not appealing against the ruling. It is also instructive to note that only the 1st, 2nd and 3rd Respondents appealed against the judgment given against the Respondents wherein the Appellants’ claims were granted.

The Court of Appeal in allowing the appeal held that the proceedings in this case under appeal should have abated immediately judgment in Appeal No. CA/E/80/88 was delivered on the 4th May, 1990 and especially when the Appeal to the Supreme Court in Appeal No. SC46/93 had been abandoned and dismissed on the 22nd February, 1995.

The Court of Appeal went further to hold that the appeal of the Respondents herein raised the defence of res judicata and it ought to have been sustained. The lower Court held that proceedings and judgment in Suit No. FHC/CA/4/87 delivered on the 20th January, 1998 were incompetent and accordingly struck out. The Court further held that the only valid judgment subsisting was that in respect of the operation of Account No.1671 which was the judgment in Appeal No.CA/E/80/88.

Dissatisfied with the judgment of the Court below, the appellants have come before the Supreme Court.

On the 22nd November, 2021, date of hearing, learned counsel for the appellant, Ademola Abimbola Esq., adopted the brief of argument filed on 10/11/2.020 and in it distilled three issues for determination, viz:-

1. Whether the learned Justices of the lower Courts were right in relying on the principles of res judicata to strike out the case of the appellants. (Distilled from Grounds 1 & 2)
2. Whether the lower Court was right to have interfered with the findings of the trial Court and arrived at the conclusion that the judgment of the trial Court was shrouded in secrecy because the 2nd respondent was not given the opportunity to cross-examine PW2 and that the 1st Respondent was not duly served with the Writ of Summons. (Distilled from Grounds 3, 4 & 6).
3. Whether the 1st Respondent is enjoined in law to formulate two issues from one ground of appeal. (Distilled from Ground 5)

Learned counsel for the 1st respondent, Okogbuje Odion Esq., adopted the brief of argument filed on 21/12/2020 and identified two issues for determination thus:-

1. WHETHER THE APPELLANTS WHO HAD WAIVED THEIR RIGHT TO RELY ON THEIR PRELIMINARY OBJECTION AND ABANDONED SAME DURING THE HEARING OF THE APPEAL AT THE LOWER COURT, COULD BE COMPLAINING THAT THE SAID PRELIMINARY OBJECTION WAS NOT PROPERLY CONSIDERED.
2. WHETHER THE LEARNED APPELLATE JUSTICES OF THE LOWER COURT WERE RIGHT TO HAVE HELD THAT THE WRIT OF SUMMONS WAS NOT DULY SERVED ON THE 1ST RESPONDENT SO AS TO CLOTH THE TRIAL COURT WITH JURISDICTION TO TRY THE CASE AGAINST THE 1ST RESPONDENT.

Edidiong O. Usungurua Esq., learned counsel for the 2nd and 3rd respondents adopted the brief of argument filed on 20/11/2020 and nominated four issues for determination as follows:-

1. Whether having regard to the fact that the issues raised in Suit No. FHC/CA/4/87 which gave rise to the present appeal were conclusively determined in Appeal No. CA/E/80/83 between the same parties and or their privies, their Lordships of the Court below were not right in holding that the case of the Appellants was caught up by the principle of res judicata. (distilled from grounds 1 and 2)
2. Whether their Lordships of the Court below were not right in holding that the failure of the Appellants to comply with the mode of service of the originating process on the 1st Respondent ordered by the Court, which in any event, was as nominated by the Appellants themselves, culminated in lack of service or due service on the 1st Respondent and robbed the trial Court of the jurisdiction to entertain their claims. (Distilled from Ground 4).
3. Whether having regard to the record, the Court below was not right in holding that there was nothing showing that the 1st Respondent was given the opportunity of cross-examining PW2 or the opportunity to in fact testify in its defence before the case was adjourned for address and that the date of judgment was shrouded in secrecy. (Distilled from Ground 3)
4. Whether the Court below was right to have dismissed the Appellants’ preliminary objection on the ground that two issues were not raised from the same ground of appeal as wrongly contended and that even if the objection succeeded as it relates to issues 2 and 3 raised by the 1st Respondent in its Appellants’ brief at the Court below, such success would be pyrrhic in that the same issues were competently raised by the 2nd and 3rd Respondents as their issues 2 and 3 in their own brief. (Distilled from ground 5).

The 4th respondent was absent though served on 16/11/2021 and so the brief of argument filed on 26/11/2020 which was settled by Chief J.L.E. Duke was deemed by the Court as argued. In the brief were raised three issues for determination, viz:-

1. Whether a fact deemed admitted by a party in a pleading in a civil proceeding requires a further proof or evidence by the opposite party in the proceeding.
2. Whether the plea of res judicata was not pleaded in paragraphs 5 & 8 of the 2nd Respondent’s amended statement of defence which were not denied by the Appellants.
3. Whether the dismissal by the Supreme Court of the Appellants’ Appeal No. SC/46/93 on 22.2.1995 which emanated from Suit No. FHC/CA/3/85 does not make this present appeal a nullity.

For ease of reference, l shall utilise the issues crafted by the appellants.

ISSUES 1, 2 & 3

1. Whether the learned Justices of the lower Court were right in relying on the principles of Res Judicata to strike out the case of the appellants.
2. Whether the lower Court was right to have interfered with the findings of the trial Court and arrived at the conclusion that the judgment of the trial Court was shrouded in secrecy because the 2nd respondent was not given the opportunity to cross-examine PW2 and that the 1st respondent was not duly served with the writ of summons.
3. Whether the 1st respondent is enjoined in law to formulate two issues from one Ground of Appeal.

Canvassing the position taken by the appellants, learned counsel submitted that:

a. the 2nd respondent (Merchantile Bank of Nigeria Plc in liquidation) did not specifically plead the principle of res judicata in its Amended Statement of Defence.

b. The 2nd respondent did not place before the trial Court any material to enable the Court consider the plea of res judicata.

c. having regard to the parties, issues and Suit No. FHC/CA/3/85 upon which Suit No. CA/E/80/88 was decided, the principle of res judicata was not applicable.

He cited Oshodi v. Eyifunmi (2000) 13 NWLR (pt. 684) 298 at 326 and Olukoga v. Fatunde (1996) 7 NWLR (pt. 462) 576 at 532 etc.

For the appellant, it was further contended that the 1st respondent’s failure to controvert the positive assertion by the appellants in paragraphs of their counter-affidavit that 1st respondent was served must be taken to have admitted the said fact. He cited C.D.C. (Nig) Ltd v. SCOA Nig. Ltd (2007) 6 NWLR (pt. 1030) 300 at 330 etc.

That this is a case for the interference of the appellate Court since there was no proper evaluation of what was before the trial Court and the Court below erred in arriving at its conclusion and the decision perverse. He relied on Salihu v. Chibok (1999) 8 NWLR (pt. 615) 452 at 440 etc.

Learned counsel for the appellants submitted that the Court should treat the respondents brief of argument at the Court below as defective and so have it discountenanced. He cited Sofolahan v. Folakan (1999) 10 NWLR (pt. 621) 86.

That it was not correct that the two issues were distilled from one ground of appeal as the Notice of Appeal of the 1st respondent dated 30/07/1999 had in law been abandoned with the filing of the other Notice of Appeal on 23/11/1999 and so Issues 2 and 3 of 1st respondent’s brief should be struck out.

Learned counsel for the 1st respondent submitted that the Court below never held as contended by the appellants that two issues could be formulated from one ground of appeal and this is supported by the record. He cited Coker v. U.B.A (1997) 47 LRCN 455.

He stated on that no Writ of Summons was served at the 1st respondent’s registered office. That the failure of the appellants to comply with the order of the Court which specified the mode of service was fatal to their case. He cited Shugaba v. UBN Plc (1999) 7 SC (pt. 111) p. 75 etc. That the failure robbed the Court of its jurisdiction. He cited Balogun v. University of Abuja (2002) 13 NWLR (pt. 783) 47 etc.

For the 1st respondent, it was contended that there was an infraction of the right of fair hearing on the 1st respondent who had been consistently absent and had without any controversy never been served with either the Amended or further Amended Statement of Claim or Hearing Notice.

Learned counsel for the 2nd and 3rd respondents advanced arguments alongside that of 1st respondent on the fact that once a Court orders service to be effected in a particular manner any service other than that is invalid and accordingly null and void. He cited per Prof Paul Emeka v. Rev. Dr. Chidi Okoroafor & Ors (2017) LPELR – 41738 (SC).

That the principle of res judicata applied and the Court below correct to have held so. He cited Ayeni v. Elepo (2007) All FWLR (pt. 383) 71 etc.

For the 4th respondent, it was contended that the plea of res judicata was adequately raised by the 2nd respondent in the statement of defence.

RESOLUTION OF ISSUES

The stance of the appellants may be captured in a nutshell as follows:

i. The claim of the Appellants at the trial Court in this matter is totally different from that in Appeal No. CA/E/80/88 which was delivered on the 4th May, 1990. Therefore, the lower Court held erroneously that there was estoppel per rem judicata especially when the Respondents at the trial and lower Courts neither pleaded res judicata nor proffered evidence in support.

ii. The lower Court also erred when it interfered with the findings of the trial Court by holding that the trial Court conducted its trial in secrecy when it was evidently clear from the records before the Court that every legal method permissible were employed to ensure the appearance of the respondents

iii. Finally, the lower Court erred in law when it held that two issues for determination can be distilled from a single ground of appeal and therefore refused to strike out both issues formulated by the 1st Respondent from one ground.

The opposing views of the respondents are in bullet point form as follows:-

a) The failure by the Appellants to have complied with the orders of the trial Court as to the mode of substituted service on the Respondents robbed the trial Court of the jurisdiction to entertain the Appellants’ claims and vitiated the entire proceedings and judgment delivered by that Court.

b) The Appellants’ case is inexorably entrapped, in the ineliminable web of res judicata in light of the extant judgment of the Court below in Appeal No. CA/E/80/88 in respect of the operation of the Appellants’ Account No. 1671.

c) The trial Court (The Federal High Court, Calabar Division), was wrong to have failed and or refused to consider that defence of res judicata which was specifically pleaded by the 1st Respondent.

d) The entire trial was conducted in breach of the Respondents’ right to fair hearing in that the records before this Honourable Court do not show that the 1st respondent afforded with the opportunity of cross-examining PW2 and indeed the delivery of the judgment was shrouded in secrecy.

e) The Court below was right to have dismissed the appellants’ preliminary objection in that, had it been favourably decided in their favour, that victory would merely had been academic because the same issues sought to be struck out were competently raised by the present 2nd and 3rd respondents.

It seems to me that the resolution of the issues cannot be done without a journey back in time to the very foundation of what brought the matter here.

As learned counsel for the 2nd & 3rd respondents stated, the facts relevant to this appeal are simple and straightforward and best viewed from the prism of the narration beautifully set out by their Lordships of the Court below. As rightly noted by their Lordships, the dispute leading to this appeal arose in the main, from a loan agreement entered into between the 2nd Respondent (then a going concern) and 1st Appellant who obtained from it a loan for the purchase of a ship named M.V. Adalma. Pursuant to that loan agreement, the 2nd Respondent in the capacity of a banker opened a loan account No.1671 in favour of the 1st Appellant and solely funded same.

It is worthy of emphasis that other than the sum total of the loan facilities granted to the 1st Appellant, neither the 1st Appellant nor any other person paid in a kobo into that account. The totality of the funds that stood to the credit of the 1st Appellant were directly gotten from the 2nd Respondent.

In furtherance of the cumulative loans granted, the parties entered into deeds of mortgage and covenant to ensure that the loan and the interest thereto were repaid by the 1st Appellant. It was specifically stipulated in the deeds of mortgage and covenant that the loans and interest would be repaid by the Appellant within six months from the date of the registration of the ship in Nigeria. Further to the foregoing, the duty of registering the ship was then specifically designated to the 1st Appellant without any reservation whatsoever.

But as it panned out, the Appellants did not honour any of their obligations under the deeds even in the least. They neither registered the ship nor repaid any part of the loans granted to them and the interest assured thereon.

The Appellants refused to register the ship in the misplaced hope that their refusal to do so would enable them to make the case that the stipulated six months period within which they ought to repay the loan had not taken off since the ship was yet be registered.

In a bid to recover the loan/accrued interest which had increased to N1,640,837.42 and in exercise of its power of seizure under the deeds of mortgage and covenant, the 2nd respondent seized the ships, Adalma 1, six years after its arrival in Nigeria and advertised it for sale.

Following the seizure of the ship, the 1st Appellant sued the 2nd Respondent together with its staff at the Federal High Court in suit no. FHC/CA/CS/3/83 further to which the 2nd Respondent counter-claimed for an order of foreclosure or in the alternative, an order for payment by the 1st Appellant of the sum of N 1,640, 837.42. In its judgment, the trial Court found in favour of the 1st Appellant and non-suited the 2nd Respondent’s counter-claim. In entering judgment in favour of the 1st Appellant, the learned trial judge awarded the sums of N2,436,000.00 and N1,500,000.00 as special and general damages respectively in its favour.

Dissatisfied with the above decision, the 2nd Respondent appealed in Appeal No. CA/E/80/83. The Court of Appeal, Enugu Division Coram: their Lordship Oguntade, Kutigi, Katsina-Alu JJCA (as they then were) on the 4th day of May, 1990, allowed the appeal dismissing the 1st Appellant’s claims at the trial Court while granting the 2nd Respondent’s counter-claim for an order of foreclosure. The judgment is reported as Mercantile Bank of Nigeria Ltd v. Adalma Tanker & Bunkering services Ltd (1990) 5 NWLR (Pt. 153) 747.

The 1st Appellant herein being dissatisfied with the above judgment exercised its right of appeal to this Honourable Court in Appeal No. SC/46/1993 which was dismissed by this Court on the 22nd day of February, 1995 the effect being that the judgment of the Court below in Appeal No.CA/E/80/83 remains binding and subsisting.

It is this judgment of the Court below in Appeal No. CA/E/80/83, that constituted the basis of the Respondents’ plea of res judicata at the trial Court in the subsequent suit no. FHC/CA/4/87 initiated by the 1st Appellant against the 2nd Respondent and 5 others at the Federal High Court, Calabar.

It is worthy of emphasis that the 1st Appellant herein, immediately the trial Court gave judgment in its favour in suit no. FHC/CA/CS/3/85 (which was subsequently set aside in Appeal No. CA/E/80/83), initiated suit no. FHC/CA/4/87 which directly gave rise to the decision in Appeal No. CA/C/93/2000 against which the present appeal lies. In that suit, the 1st Appellant sought from the trial Court the following reliefs:

1. A declaration that the defendants wrongfully and illegally transferred outside Nigeria various sums of money:

a. On 26th January, 1983, $88,506.68 in Draft No. 5082/1822

b. On 25th February 1983, $32,184.00 in Draft No. 00000/82

c. On 12th September, 1983, $179,615/70 in Draft No. 5904/304

d. N231,841.00 to Ghana through I.J Johnson and another huge sum of money using 1st Plaintiff’s Account No. 1671 opened at 1st Defendant’s Lagos Branch for the use of the defendants without the consent, permission or authorization of the plaintiffs and without any permission, approval or authorization from the Central Bank of Nigeria or the appropriate authority.

2. A declaration that the defendant wrongfully took over and operated the 1st Plaintiff’s Account No.1671 opened at the 1st Defendant’s Lagos Branch, without the consent, permission or authorization of the plaintiffs and without allowing the plaintiffs to further use or operate or do business with the said Account No.1671.
3. A declaration that the 1st Defendant is no more entitled to its license to practice as a commercial Bank as it is in breach of the banking laws and regulations in its dealings with the 1st plaintiff.

N10,000,000.00 (Ten Million Naira) damages for their wrongful acts of the defendants as demanded in Plaintiff’s letter dated 6th May, 1987

4. AN ORDER for the referring of the defendants to the Exchange Control (anti-sabotage) Tribunal for them to account for the said illegal transfers of the various sums of money outside Nigeria using 1st Plaintiff’s Account No. 1671 without the application, consent, permission, or authorization of the 1st Plaintiff or the Central Bank of Nigeria or the appropriate authority.

In opposition to this suit, the 2nd Respondent as 1st Defendant, filed an Amended Statement of Defense dated 19th March, 1997. At paragraph 5 of its Defence, it pleaded specifically and with sufficient particulars thus:

5. Paragraphs 12 and 13 are denied. In further answer to the paragraphs, the 1st Defendant states that there is no appeal presently pending at the Supreme Court in respect of Appeal No. CA/E/80/88. The Supreme Court had on 22/2/95 dismissed the appeal in favour of the 1st service of the originating process on the 1st respondent as ordered by the trial Court, culminating in lack of service or due service on the 1st respondent and robbed the trial Court of the jurisdiction to entertain the appellant’s claim.

In the course of the trial of suit no: FHC/CA/4/87, the appellants applied for the joinder of the 1st and 3rd Respondents (designed as 7th and 8th Defendants respectively at the trial Court) and for substituted service on them of the originating processes.

In applying for the joinder of these parties and for substituted service on them, the Appellants on their own accord, nominated DHL Courier service, a well-known registered courier service provider, as the means of delivery of the originating processes on them at their respective head offices in Lagos, Nigeria. The learned trial Judge granted the Appellant’s application for joinder and substituted service through DHL Courier Service as sought in the following words:

“Leave is hereby granted to join the Central Bank of Nigeria and the Nigeria Deposit Insurance Corporation to be joined as defendants in this suit.

Leave is also granted to service the writ of summons and other Court process to be served on the said Central Bank of Nigeria and the Nigeria Deposit insurance corporation at their head office in Lagos through DHL with N500 to the 1st Defendant. This case is adjourned to the 18th day of November, 1996 for hearing.”

(see page 141 of the record)

This was a positive, clear and direct order granted by the Court. The mode of substituted Service elected by the Appellants themselves was granted by the Court. Irrespective of this, the Appellants for reasons best known to them decided to flout the mode of service ordered by the Court by purporting to have served the 1st Respondent through a company called Crown Courier Service.

In the face of the positive order of the trial Court directing a particular manner and or mode of effecting service on the 1st Respondent by substituted means, the Appellants were under an indubitable legal duty to comply with that order without let or adulteration or without more or less.

That position has been well settled in law and I shall quote some of the decided cases on the point. See REV. PROF EMEKA v. REV. DR. CHIDI OKOROAFOR & ORS (2017) LPELR-41738(SC), where this Court Per KEKERE-EKUN, J.S.C. at Pp. 54-55, held thus:

“On the importance of a bailiff carrying out his statutory duty in accordance with the Rules or Order of Court, I refer to Odutola Vs Kayode (1994) 2 NWLR (pt.324) 1 @ 19 – 20 G -A, where Olatawura, JSC (of blessed memory) stated thus: “This case has brought out clearly the statutory and honest duties required of a bailiff: to serve in accordance with order of Court. Where personal service is ordered, he must serve that person personally. Where a substituted service either by pasting at the last known abode of the person required to be served, or by publication in a newspaper is ordered, any other service which is not in accordance with the clear and unambiguous language of the Court is ineffectual. Bailiffs are officers of the Court. Any dereliction of duty in the discharge of their duties will cause unnecessary delay in the administration of justice. A false return of service on the part of the bailiff may lead to an attempt to deceive the Court. This in itself is an abuse of that order.” (Emphasis mine)

In DR. HARRY v. O.C. MENAKAYA (2017) LPELR-42363(SC) Per KEKERE-EKUN, J.S.C. Pp. 41-44, where this Court in citing with approval Okoroafor’s case, held thus:

“The argument on behalf of the appellant is that service of any process subsequent to the grant of the order for substituted service must be effected in strict compliance with the order. In other words, service must be effected on Arc. Moh and no other person. A somewhat similar situation arose in a recent decision of this Court in: Emeka Vs Okoroafor (2017) LPELR – 41738 (SC). The appellant therein obtained an order at the trial Court for substituted service of the originating process on all the respondents by delivering same to the 1st respondent whose address for service was given as Evangel House, Plot R8 Ozubulu Street, Independence Layout, Enugu. The order was granted as prayed. It transpired that rather than serve the processes on the 1st respondent personally and at the specified address in accordance with the order of the Court, the processes were dumped some blocks away from the 1st respondent’s residence in front of a neighbour’s gate. They were discovered by the occupant of the house where they were dumped and taken to the 1st respondent. In the meantime, the bailiff of the Court deposed to an affidavit of service stating that the processes were served on the 1st respondent through his security guard, one Shedrack Lawson. It was held that once an order for substituted service is sought and obtained, in the absence of a subsequent order varying the earlier one, neither the applicant nor the bailiff of the Court has the discretion to effect service in any other manner or on any other person than as stated in the order. In the said judgment at pages 51 E – 53 A (supra), I stated thus: “It is the usual practice when applying for substituted service to specify the manner in which service is to be effected, the person on whom it is to be effected and, where. The applicant chooses the location where he believes the processes are most likely to come to the attention of the person to be served. The order would be mode in accordance with the request. Having sought and obtained such a specific order, it cannot be open to a bailiff effecting service to do so at any other address or by any other means without a fresh order obtained from the Court. “See also Odutola Vs Kayode (supra) @ 19-20 G – A. In the absence of evidence in the record of appeal showing that the appellant was served with the Notice of Appeal, which is the originating process, the lower Court lacked jurisdiction to entertain the appeal ab initio. The situation is compounded by failure to adhere strictly to the order or substituted service in effecting service of other processes in the appeal. The defect has thus rendered the entire proceedings a nullity.” (Emphasis Ours)

Holding further, EKO, J.S.C. at Pp. 45-48, Paras. F-B held that:

“The real problem in this appeal that the respondent herein has to contend with is the manner the processes were served on the Appellant herein after the lower Court made order that all processes for service on the appellant herein, as the respondent in the lower Court, shall be served on Arc. David Moh, who actually was, the attorney through whom the Appellant maintained his suit at the trial Court.

The order for substituted service was specific that the processes for service on this Appellant, as the respondents in that Court shall be served on the said Arc. David Moh, and that by such service the Appellant, as the respondent, shall have been deemed to have been duly served. Until set aside this order remains valid neither the parties nor the bailiffs are empowered to alter the said order of the lower Court. It is trite that subsisting orders of Court, right or wrong, are meant to be obeyed and carried out. See ROSSEK v. A.CB LTD (1993) 8 NWLR (pt. 312) 382. Until the order for substituted service made by the Lower Court was varied or modified, the bailiffs have no discretion as to how the order for substituted service shall be carried out. None of the parties and the bailiffs or any other person are at liberty to disregard or disobey such lawful order of Court. The bailiffs were by the order for substituted service obligated as directed by the order, to serve Arc. David Moh all the processes, including hearing notices, meant for service on the Appellant, on the respondent to enable him participate in the appeal. Since the order for substituted service did not authorize service of the processes meant for this Appellant as the respondent in the appeal at the lower Court on either Mrs. Mma Moh, Secretary to Arc. David Moh, or any other person for that matter. It follows that the purported service of those processes including hearing notice, on those persons in violation of the express letters of the Court order was a non-starter. The disobedience of the specific order for substituted service completely annuls the service made in such flagrant disobedience of such express Court order. This much is admitted by the Respondent in Paragraph 3.16 – 3.19 of the Amended Respondent’s brief? The singular act of disobedience or insubordination to the subsisting order for substituting order for substituted service of the processes on the Appellant, or the respondent at the lower Court, vitiated all proceedings subsequent thereto, and consequent upon the said faulty or illegal service of the hearing notice and the other processes. The proceedings of the lower Court following such faulty or, illegal purported service of hearing notice on the Appellant, as the respondents are all null and void.” (emphasis Ours) I have quoted copiously my learned brothers above as their dicta have shown the light and guide on the correct and immutable stance of the law on the issue.

In this case in hand, the appellants in their brief of argument admitted that the mode of service was on the order of the Court and they Stated thus:

“We submit unequivocally that the 1st Respondent was joined by order of the trial Court upon the application of the appellants. The order of the trial Court or binder of the 1st Respondent required that the 1st Respondent be served at its head office in Lagos through DHL but the 1st Respondent was truly served with the processes filed in the suit through crown courier services.”

Having admitted this much, the hands of the Court have been strengthened by the Appellants themselves to apply the same measure of sanction applied to the Respondent in DR.HARRY’s case by dismissing this appeal for want of service. The Appellants have ‘unequivocally’ stated that they flouted the orders of trial Court on substituted service on the 1st Respondent.

The law in this regard is not new at all. It had always been the same even at the time that the suit, subject matter of this appeal was tried at the Federal High Court, Calabar, Cross River State. In the earlier case of ODUTOLA V. KAYODE (1994) LPELR-2262(SC) Per OLATAWURA, J.S.C AT Pp. 23-24, the Apex Court had earlier held that:

“The general and accepted practice of Court is that service on counsel for the party is a good service on the party, but where personal service is ordered, as in this case, any other mode of service is defective in law. The Court of Appeal was therefore clearly in error in the special circumstances of the appeal to have held that service on a counsel was a good service.”

The Appellants will therefore not be availed by the argument that the decisions relied upon by the 2nd and 3rd Respondents are subsequent to the order of the trial Court on substituted service.

Although Odutola’s case was specific on the need to comply with personal service when same is ordered by the Court, it nevertheless underscores the point that once the Court orders that service should be effected in a particular manner, only that mode of service ordered by the Court can be deemed proper service. It bears repetition to emphasis that the mode of service ordered by the Court was as sought by the Appellants themselves. The Court below made specific findings on the point thus:-

“The 1st Appellant was joined as 7th defendant in the trial by order of Court made on 30/9/96. In the application dated 11/7/96, the plaintiff specifically asked for leave to issue and serve the writ of summons and other processes on the Central Bank of Nigeria and the Nigeria Deposit Insurance Corporation at their head office in Lagos by substituted service through DHL (a registered courier company and the Court granted their prayer. It was not the Court that imposed DHL on the plaintiffs neither did they apply to serve the processes on the appellants through any other service. The plaintiffs clearly flouted the order of the Court and in seeking to justify this stance took umbrage under NWOSU v. NWOSU supra…

To illustrate the point further, if a Court orders that a process be served on a party by publishing the process in the Guardian Newspaper, a party cannot justify carrying out the order by publishing the process in the vanguards Newspaper because its coverage is as wide as the Guardian newspaper. In the present situation, crown courier service is not DHL and since it was the Plaintiffs themselves who applied to serve the 1st Appellants (sc) with the Writ of Summons and all other processes in the matter through DHL, they are bound to stick to their choice and if they found reason to alter the choice, they must obtain an order of the Court to that effect.” (Emphasis mine). (See page 1202 of the record).

At paragraphs 5.19 – 5.21, pages 23 – 24 of their brief, the Appellants have argued that the decision of the Court below on the effect of the failure by the Appellants to comply with orders of the trial Court in the mode of substituted service ordered amounts to reliance on technicalities. They rely on BBN Ltd v. Olayiwola & Sons (2005) 3 NWLR (pt. 912) 434 and Egolum v. Obasanjo (1999) NWLR (pt. 612) 335.

The Appellants’ position is founded on misapprehension of the law. The time honoured principle of law is that orders of Court as made must be obeyed until set aside. In SHUGABA V. UBN PLC (1999) 11 NWLR (Pt. 627) 459, (1999) LPELR – 3068(SC) this Court Per WALI, J.S.C at P.15, held as follows:- “While I agree that it is not desirable for the Courts to make unbridled orders, and that Court should not do anything to put a clog in the wheel of justice, orders of the Court are to be respected and obeyed. The dignity and honour of Court cannot be maintained if its orders are treated disdainfully and scornfully without due respect. Consequently, non-compliance with an order of Court makes a matter or suit incompetent.”

It follows that the trial Court having made the order that the 1st Respondent be served by substituted means through DHL, that order ought to have been obeyed by the Appellants to the letter. Their purported service on the 1st Respondent through Crown Courier Service amounted to a blatant disobedience to the orders of Court and one which was rightly condemned by the Court below.

In the instant case however, no service whatsoever was effected on the 1st Respondent. That is the case made out by the party alleged to have been served and rightly upheld by the Court below. The non-appearance in Court of the 1st Respondent certainly meant that it was not served having regard to the Appellants’ failure to comply with the mode of substituted service ordered by the trial Court.

There is no record to show that after the purported service on the 1st Respondent of originating process through Crown Courier Service, subsequent processes, particularly hearing notices were served on the 1st Respondent in notification of subsequent hearing dates.

Following persistent absence of the 1st Respondent despite the purported service of the originating process on it, the right course for the learned trial judge to have charted was to order the issuance and service of hearing notice on it. In the words of the lower Court:

“When it became apparent that the 1st Appellant was never represented in Court for once before, during or after the joinder was moved and granted, the learned trial judge should have ordered hearing notice to be served on the 1st appellant through DHL. This was never done. There is nowhere in the whole proceedings up to judgment where it is indicated that the Court had to proceed with the business of the day despite the absence of any of the parties because they or their counsel were aware or served with hearing notice. In Credit Alliance Financial Services Ltd v. Mallah (1998) 10 NWLR (Pt 569) 341 pats- Acholonu JCA (as he then was) stressed the need to issue hearing notice when he said at page 348 where parties are consistently absent in Court, the only procedure to take is to issue hearing notice.” (Emphasis mine) (see pages 1202 – 1203 of the record)

In COMPACT MANIFOLD & ENERGY SERVICES LTD v. PAZAN SERVICES NIG.LTD (2019) LPELR-49221 (SC), this Court held:

“What then is the essence of hearing notice? The issue of service of hearing notice on a party notifying him of the hearing date of matters is very fundamental to the administration of justice. It is the service of hearing notice that confers on the Court the jurisdictional competence to entertain the matter before it. Thus, where a matter is adjourned to a date other than the date the parties had previous notice of hearing, the Court has a duty to notify them of the subsequent adjournment. The Court should not predicate its decision no mere assumption that a party must have been served with Court process at one stage and that he should be aware of the subsequent hearing dates.”

On the effect of failure to serve hearing notice, the Apex Court held in NUT TARABA STATE & ORS v. HABU & ORS (2018) LPELR – 44057 (SC) PER KEKERE-EKUN, J.S.C AT Pp. 15-16, thus:

“…Failure to serve hearing notice on a party entitled to such service is a fundamental defect in the proceedings and fatal to the case. It amounts to a breach of the right of the party who should have been served to a fair hearing, a right guaranteed by Section 36(1) of the 1999 Constitution, the consequence of such failure is that the Court lacks jurisdiction to entertain the proceedings, which are thereby rendered null and void. See Obimonure Vs Erinosho (1966) 1 ANLR 250, Skenconsult (Nig) Ltd. Vs Sekondy Ukey (1981) 1 SC 6, Wema Bank Nig. Ltd Vs Odulaja (2000) FWLR (Pt. 17) 138 @ 142-143 A-C, A.C.B. Plc vs Losada Nig. & Anor. (1995) 7 SCNJ 158 @ 162. The proceedings and judgment of the lower Court are therefore null and void for breach of the 1st and 6th appellants’ right to fair hearing.”

The 1st respondent having not been served with either the originating process or hearing notice, only became aware of the proceedings upon receipt of the Appellants’ solicitor’s letter demanding payment of the judgment sum. The Court below held thus: “In the instant case where the 1st appellant never showed up in Court even once after its joinder as 7th defendant had been ordered but became aware of the suit only when it received a letter from the plaintiffs’ solicitors demanding the [payment of the judgment debt and the learned trial judge never ascertained if the writ of summons was served on the 1st appellant before proceedings with the case of judgment coupled with the fact that the plaintiffs instead of sending the writ of summons through DHL but rather (sic) chose to do so through Crown Courier Service, the rational conclusion that can be drawn is that the 1st appellant was not duly served with the writ of summons so as to confer jurisdiction on the trial Court to entertain any claim against it.”

See page 1203 of the record

​Whether having regard to the fact that the issues raised in suit no. FHC/CA/4/87 which gave rise to the present appeal were conclusively determined in Appeal No. CA/E/80/83 between the same parties and or their privies, their Lordships of the Court below were not right in holding that the case of the appellants was caught up by the principle of res judicata. The Court below was right in holding that the case of the Appellants in suit no. FHC/CA/4/87 was incompetent on account of the subsisting decision of the Enugu Division of the Court of Appeal in Appeal No. CA/E/80/83 which constituted a bar against the institution of the subsequent case in suit no. FHC/CA/4/87 between the same parties and or their privies and involving the same issue earlier conclusively determined by the Court below. The lower Court held thus:

“It is crystal clear that the 1st Defendant raised the issue of res judicata in its pleadings but the Court totally ignored the plea in its judgment. Under the principal of res judicata, even if no judgment has been recovered in the same action against the same party, a litigant in a civil action against the same party may be estopped denying what has previously been finally decided by a competent Court. Res judicata is not a technical doctrine, and the principle applies whether or not the previous judgment was given by a Court of record or a Court of limited jurisdiction. See CLERK & LINSELL on Torts 16th Edition par 19- 23 at page 384. The judgment of Ezekwe J., delivered on 20/1/98 cannot stand as against the judgment of the Court of appeal in CA/E/80/80 delivered on 4/5/90. As against the judgment in No. CA/E/80/88 (sic) the judgment in FHC/CA/4/81 of 20/198 was delivered per incuriam and totally without jurisdiction. The Respondents were aware of the judgment in appeal No. CA/E/80/88 since they filed Appeal No. SC.46/93 in the Supreme Court which they abandoned and was dismissed on 22/2/95 and yet (sic) went ahead to prosecute their claims in FHC/CA/4/87. The judgment of Ezekwe J., is to say the least a travesty of justice. He became a willing tool in the prosecution of a dubious claim by the Respondents who were fully aware that even though Account No. 1671 was opened and run in 1st Respondents’ name the Respondents never paid a kobo into the account despite having obtained the loan to buy the ship and took other sums as overdraft for the purpose of repairing the ship. A Oguntade JCA (as he then was) pointed out at page 769 in his judgment:

I think it would have been distinctly unjust to have dismissed the 1st Defendant alternative counter-claim when it was so clear that the plaintiff obtained a loan to purchase the ship from the 1st Defendant. The plaintiffs also took other sum of money as overdraft and for purpose of repairing the ship.

I say emphatically that it was unjust for the lower Court not to have granted the order of foreclosure and sale of the ship Adalma 1 by the 1st Defendant when it was glaring that as at December 1986, seven years after the ship had been bought, the plaintiff had not paid a kobo out of the loan and interest.”

The appellants have not shown in persuasive terms why the reasoning and conclusions of the Court below should be upset by this Court.

All the constitutive ingredients for the applicability of the doctrine or principle of res judicata were satisfied and the Court below rightly applied same. On the constitutive ingredients for the application of the plea of res judicata, this Court in ODUTOLA V. ODERINDE & ORS. (2004) 12 NWLR (Pt. 888) 574, (2004) LPELR – 2258(SC) Per KUTIGI, J.S.C at P.10, held thus:

“It is settled law that to sustain a plea of ‘res judicata’, the party pleading it must satisfy the following conditionalities, to wit – (1) The parties (or their privies as the case may be) the same in the present case as in the previous case; (2) That the issue and subject matter are the same in the previous suit as in the present suit; (3) That the adjudication in the previous case must have been given by a Court of competent jurisdiction and (4) That the previous decision must have finally decided the issues between the parties.” (Emphasis mine)

I shall proceed to demonstrate the applicability of these constitutive ingredients to the instant appeal:

a. The parties in Appeal No. CA/E/80/83 are the same as those in suit no. FHC/CA/4/87

​

The parties in Appeal No. CA/E/80/83 wherein the Court below gave a binding and subsisting decision on the merit, are the same as those in suit no. FHC/CA/4/87.

In Appeal No. CA/E/80/83 reported as Mercantile Bank of Nig. Ltd v. Adalma Tanker & Bunkering Services Ltd (1990) 5 NWLR (Pt. 153) 747 at 768-769, the parties on record, were the present 2nd Respondent and the extant 1st Appellant.

​

In the present appeal, both the Appellant and Respondent in the earlier appeal are still parties but now designated as 1st Appellant and 2nd Respondent respectively. The 4th Respondent (Chief J. L. E. Duke) who was the managing Director/Chief Executive Officer of the 2nd Respondent when it was still a going concern was in fact impleaded as the 2nd Defendant in the earlier proceeding. The 3rd Defendant in the earlier case (Chief Nyong Inyang) was again made the 3rd Defendant in suit no. FHC/CA/4/87. On his part, the 4th Defendant in that case (Mr. A.E. Ananm), was sued on the 5th Respondent in the subsequent suit.

The remainder of the parties to this appeal, that is, the 1st and 3rd Respondents are privies to the parties in the earlier appeal, particularly the 2nd Respondent herein (who became Appellant in appeal number CA/E/80/88) and accordingly deemed at law to have been parties to that proceeding.

While the 1st Respondent bought over the 2nd Respondent at the sum of N1.00 for the purpose of restructuring same thus becoming its successor in title, the 3rd Respondent is the official liquidator of the 2nd Respondent. This community of interests between the 1st, 3rd and 4th Respondents clearly makes them privies of the 2nd Respondent.

Accordingly, the judgment delivered in Mercantile Bank of Nig. Ltd v. Adalma Tanker & Bunkering Services Ltd (supra), is binding not only on the parties on record in that appeal but also on their privies now joined in the present appeal before this Court.

For the purpose of the application of the doctrine of estoppel per rem judicata, this Court consistently held that parties are defined not only in terms of those on record but also as including privies to the parties on record, those who may be interested in the outcome of the case and those who ought to have been made parties to the action but were not joined. In AYENI V. ELEPO (2007) ALL FWLR (PT.383) 71, it was stated thus:

“For the purpose of estoppel per rem judicata, party means not only a person named in the previous action but includes those who ought to have been made parties. It equally includes “privies” and those who may be interested in the outcome of the case.”

The word ‘privy’ has also been defined to include all those who are privy to the parties on record in blood, title or interest and estoppel per rem-judicatam operates against all of them. See MUSA IYAJI v. SULE EYI GEBE (1987) LPELR- 1571 SC 1 AT 22-23 G-A per OPUTA, JSC where this Court held thus: “Who is a Privy? Are the parties to this appeal privies of the parties in Exhibit D1? In Carlzein-Stiftung v. Rayner 4 Kueler Ltd (No. 2) (1996) 2 All E.R. 536 H.L. at p. 550, Lord Reld held that privies include all those who are privies to the parties, in blood or title or interest and estoppel per rem judicatam operates for or against, not only parties but also those privies above mentioned.”

The position has been fully emaciated by this Court as seen in the case of Ikeni and Ors v. Efamo & Ors (2001) 10 NWLR (Pt. 720) 1 at 11 – 12 and 17 – 18 this Court held that:

“The principle that for a defence of issue estoppel to succeed there must be identity of the parties does not mean that all the parties in the previous suit must be made parties in the latter suit. It is sufficient where there are several parties in the previous suit, that those of the parties who were necessary parties to the issue in the previous suit are the same as in the latter suit. ” (Underlining mine)

For a fact, the parties in both Appeal No. CA/E/80/83 and the present appeal, are the same.

b. The issue and subject matter in the previous suit are the same as those in the present suit; The cardinal issue in suit no. FHC/CA/4/87 which were admitted by the Appellants’ centered on the operations and or maintenance of the Appellants’ account with the 2nd Respondent, was one of the issues raised in suit no. FHC/CA/3/85. The running and, or operations of this account were specifically put in issue by the 2nd Respondent vide its Counter-Claim non-suited by the trial Court.

Indeed the trial Court made a specific finding and arrived at a decision on this issue when his Lordship held at page 211 of the record thus:

The total sum claimed by the defendants jointly and severally is the sum of N237,410,881.26k the evidence before me, I am satisfied that the said sums were transferred from the plaintiffs’ Account No. 1671 without the consent and approval of the plaintiffs and the Central Bank of Nigeria. The 5th Defendant in suit number FHC/CA/3/85 who is the 4th Defendant in this case, gave evidence in the said case that all money transferred from the account of the plaintiffs, that is Account No.1671, were transferred with the consent and approval of the of the plaintiffs, I reject this piece of evidence, since there is no proof. No document was transferred by the defendants to show that the plaintiffs consented to the transfer of their money by the defendants; I hold that the plaintiffs did not consent to the transfer of their money from their Account No. 1671. I also hold that the said sums transferred by the defendants belong to the plaintiffs in its entirety.” (underlining mine).

In the consideration of the trial Court, the facts that the evidence proffered were intricately connected and interwoven in the issues of the two processes are glaring as shown below in the finding of that Court of first instance thus:

“As regards the statement of Account No. 1671 (Exhibit 47) and 8115 (Exhibit 48) prepared by the 1st Defendant for the purpose of this case, I found them unreliable in establishing a claim of outstanding indebtedness against the plaintiff in the 1st Defendant’s counter-claim as Account No. 1671 was opened and operated by the plaintiff in the Lagos branch of the 1st Defendant, that branch as solely responsible for keeping the account for the plaintiff and sending periodic statement of account to the plaintiff and in case of any dispute in the account, it is the responsibility of the Lagos branch of the 1st Defendant to produce all the relevant bank books such as ledger cards, advice Debit Slips, and bank’s copies of statement of account etc to establish the indebtedness of the plaintiff. The production of the statement of Account No. 1671 in a book form hurriedly complied by the 2nd and 3rd DWs in the Calabar branch which was not the keeper left to be desired. And it is the same thing with Account No. 8115, it is the responsibility of the Calabar branch to give evidence about the keeping of the account. The evidence of each of the branches will then show how the error made by the 1st Defendant in the two accounts for the past seven years was rectified. In the absence of such evidence, the counter-claim would not succeed. In my conclusion, I find it difficult to place any reliance or credibility on the two statements of account because of the confusion created in combining them together without proper clarification from the two branches of the 1st Defendant as if the two accounts belonged to the same person.” (Emphasis mine)

It was on account of the foregoing finding of fact and or decision by the trial Court that his Lordship non-suited the 2nd Respondent’s counter-claim in that case.

Dissatisfied with the judgment, the 2nd Respondent as Appellant appealed vide Appeal No. CA/E/80/88 to the Court of Appeal, Enugu Division which at that time was seized of jurisdiction over appeals emanating from Cross River State. In a considered judgment, their Lordships upheld the 2nd Respondent’s counter-claim and in effect, set aside the above findings and or decision.

The Appellants in a bid to circumvent the import of the decision of the Court below in Appeal No. CA/E/80/88, elected to institute a fresh action vide suit number FHC/CA/4/87.

Evidently, the operation of Account No. 1671, subject of the 2nd Respondent’s successful counter-claim in Appeal No. CA/E/80/88 was re-litigated by the Appellants.

Clearly, suit numbers FHC/CA/3/85 set aside in Appeal No. CA/E/80/88 and suit no. FHC/CA/4/87 revolved around both the broad subject matter of alleged wrongful seizure and takeover of the M.V. Adalma and the narrow issue of the alleged wrongful take-ovperaer and otion of the 1st Appellants’ account No. 1671 with the 2nd Respondent. These issues were earlier raised in suit number FHC/CA/3/85 and it was immaterial the form, the stage of proceedings and by whom they were raised. The pertinent point is that they were raised and a judicial pronouncement made on them. See further the proceeding of the trial Court at page 188 of the record which further shows that the subject matter of the operation of the 1st Appellants’ account was earlier litigated.

Indeed what the Appellants simply did was to lift an issue in the earlier proceedings, amplified same into the status of a fresh case just to make up for the lacuna and or lapses in the previous case which judgment was set aside on appeal.

c. The adjudication in the previous case must have been given by a Court of competent jurisdiction

There is no doubt whatsoever that the judgment in Appeal No. CA/E/80/88 was given by a Court of Competent jurisdiction. The Court below is by virtue of Section 240 of the Constitution conferred with the jurisdiction to the exclusion of every other Court, to hear and determine appeals from decisions of the National Industrial Court, High Court of a State and that of the Federal Capital Territory, Federal High Court, Sharia Court of Appeal either of a State or of the Federal Capital Territory and Customary Court of Appeal either of a State or of the Federal Capital Territory.

The decision appealed against to the Court below in Appeal No. CA/E/80/88, emanated from the Federal High Court, Calabar Division, and in hearing that appeal, the Court below rightly assumed jurisdiction.

d. The previous decision must have finally decided the issues between the parties.

The decision in Appeal No. CA/E/80/88 finally decided the issue in controversy between the parties subsequently re- litigated by the Appellants. In that case, the Court below in allowing the appeal and granting the counter-claim, held per Oguntade JCA (as he then was) at pages 768-769, pages A-G held thus:

“The appellant is also contending that the lower Court erred to have non-suited it on the counter-claim in the counter-claim, the appellant prayed for an order of fore-closure of the mortgage and an order to sell the vessel or alternatively that the sum of N1,640,837.43 outstanding against the plaintiff in the books of the 1st Defendant be paid by the plaintiff. It is to be noted that the claim for N1,640,837.42 was in the alterative.

In order words, the Court would only need to consider it if for any reason, it found it could not grant the principal claim for an order of foreclosure. The plaintiff in its reply to the counter-claim pleaded that it was not liable on the counter-claim for N1,640,837.42 for two reasons, namely (1) that the accounts of the plaintiff with the 1st defendant – No.1671 were muddled up with another Account No. 8115 belonging to another company and (2) that the 1st Defendant was in breach of the deeds of mortgage and covenant which covered the transaction of loans made to the plaintiff by the 1st defendant.

Throughout the plaintiffs case before the lower Court, it was crystal clear that the plaintiff obtained loans and or overdraft from the 1st defendant to purchase the ship. It was to secure the loans and interest that Exhibits 6 and 7 were executed I have said that it was plaintiff’s duty to register the ship. The basis of plaintiffs resistance to the counter-claim for money granted to it as loan has therefore disappeared. The lower Court however found that he statements of accounts tendered in support of the alternative counter-claim were muddled up. At pages 329-330 of the record, the lower Court said:

As regards the statement of Account No. 1671 (Exhibit 47) and 8115 (Exhibit 48) prepared by the 1st defendant for the purpose of this case, I found them unreliable in establishing a claim of outstanding indebtedness against the plaintiff, the 1st Defendant’s counter-claim. As Account No. 1671 was opened and operated by the Plaintiff in the Lagos branch of the 1st Defendant, that branch as solely responsible for keeping the account or the plaintiff and sending periodic statement of account to the plaintiff, and in case of any dispute in the account, it is the responsibility of the Lagos branch of the 1st defendant to produce all the relevant bank books such as ledger cards, advise Debit Ships, and bank’s copies of statement of account etc to establish the indebtedness of the plaintiff. The production of the statement of Account No. 1671 in a book form hurriedly compiled by the 2nd and 3rd DWs in the Calabar branch which was not the keeper left to be desired. And it is the same thing with Account No. 8115. It is the responsibility of the Calabar Branch to give evidence about the keeping of the account. The evidence of each of the branches will then show how the error made by the 1st Defendant in the two accounts for the past seven years was rectified. In the absence of such evidence, the counter-claim would not succeed. In my conclusion, I find it difficult to place any reliance or credibility on the two statements of account because of the confusion, created in combining them together without proper clarification from the two branches of the 1st Defendant as if the two accounts belonged to the same person.

I think that it would have been distinctly unjust to have dismissed the 1st defendant’s alterative counter-claim when it was so clear that the plaintiff obtained a loan to purchase the ship from the 1st defendant. The plaintiff also took other sums of money as overdraft and for the purpose of repairing the ship. The Court expressed that there was mix-up in the preparation of the statements of account by the 1st defendant. The Court then decided to non-suit the 1st defendant. But before making the order of no-suit the lower Court did not call on parties’ counsel to address it on such order. This was an error. CRAIG v CRAIG (1966) 1 All NLR 173 the Supreme Court observed:

It seems to us, when considering our judgment that this might be a proper case for a non-suit but we thought that we ought first to hear learned counsel. And we pause here to observe that when the propriety of a non-suit has been argued, if a trial Judge should think of entering non-suit, it is desirable that he should first ask counsel for parties for their submission.

Having pointed out the above, I am of the view that the claim for N1,640,837.42 was only an alternative to the claim for foreclosure, I should first consider whether the principal claim ought to have succeeded, if I hold that it should have succeeded, then need for considering further the significance of the error made by the lower Court in making the order of non-suit without hearing counsel would no longer arise.

By the terms of Exhibits 6 and 7, the 1st Defendant has the right to take possession of the ship and sell it in order to realise the amounts advanced to the plaintiff and interest thereon. As at the time the lower Court gave judgment in this case on 28 December, 1986, the Plaintiff had not paid a kobo out of the loan and interest. Rather the lower Court on 5/12/1986 ordered that the ship be released to the plaintiff conditionally. On 18/12/1986, the ship was released unconditionally to the plaintiff. In the light of what I have said earlier in this judgment as to who of the parties had the duty to register the ship under Exhibit 7, I think the lower Court was wrong to have ordered the release of the ship to the plaintiff. The 1st defendant’s principal claim on the counter- claim therefore succeeds, I make an order for of foreclosure and sale of the ship Adalma 1 by the 1st defendant unless the plaintiff pays over to the 1st defendant on or before the expiration of 21 days from the date of this judgment the amount owing to the 1st Defendant representing loans and interest thereon granted to the plaintiff and which were secured by exhibits 6 and 7.”

From the foregoing, it is seen clearly that the issues arising from the operation, maintenance and or running of the 1st Appellant’s account was a subject of litigation in the earlier proceedings. In fact, the trial Court in non-suiting the counter-claim of the 2nd Respondent, made specific findings on these issues. Those findings were however reversed by the Court below in allowing the counter-claim of the 2nd respondent.

It is demonstrably shown that all the conditions for the application of the plea of res judicata were satisfied and the Court below rightly applied same.

The plea of res judicata was specifically pleaded by the 2nd Respondent as 1st Defendant at the trial Court.

It is incorrect that the principles of res judicata was not pleaded as the appellants are contending. At the trial of Suit No. FHC/CA/4/87 before the Federal High Court, Calabar Division, the 2nd Respondent as 1st Defendant filed an Amended Statement of Defence. In its Defence dated the 19th day of March, 1997 but deemed properly filed on the 25th day of March, 1997, particularly at paragraph 5, the 2nd Respondent pleaded emphatically and specifically the defence of res judicata in the following words:

“Paragraphs 12 and 13 are denied. In further answer to the paragraphs, the 1st Defendant states that there is no appeal presently pending at the Supreme Court in respect of Appeal No. CA/E/80/88. The Supreme Court had on 22/2/1995 dismissed the appeal in favour of the 1st Defendant. Then only subsisting judgment in the matter now is that of the Court of Appeal of 4th May, 1990 which reversed the judgment of this Honourable Court where the issues raised in paragraph 15 and 16 of the plaintiff’s statement of Claim were exhaustively canvased.”

See pages 1212-1213 of the record.

From the above, the pleadings of the 2nd Respondent in respect of res judicata was not only specific but in fact laced with particulars of the judgment grounding the plea itself. The appeal number was supplied to be Appeal No. CA/E/80/88, the date on which the Court of Appeal delivered judgment in that appeal was given as the 4th day of May, 1990 and the date of the dismissal by the Supreme Court of the Appellants’ appeal against it stated to the 22nd day of February, 1995.

The Appellant’s reliance on the authority of Oshodi v. Eyifunmi (2000) 13 NWLR (pt. 684) 98 at 326 para F is unavailing in that although it is a correct statement of the law to say that estoppel per rem judicatam should be specifically pleaded by the party seeking to rely on it, in the instant case, the 2nd Respondent indeed discharged that duty.

Similarly, the Appellants’ reliance on the authority of Achiakpa v. Nduka (2001) 14 NWLR (Pt. 734) 623 at 647 is equally unavailing. The facts of that case are totally and completely distinguishable from those of the present case. In Achiakpa’s case the party that sought to rely on the doctrine did not supply any details of the case sought to be relied on. The suit number or case number was not supplied. The particulars of the Court that delivered the judgment were not given and even the date of the delivery of the judgment was not supplied. That situation is distinct from the case in hand as the necessary particulars and details were made available.

The trial Court having been given particulars of the decisions of the Court of Appeal grounded the plea of estoppel and in fact, intimated of the outcome of the appeal against same to this Honourable Court, was entitled to take judicial notice of that judgment. In OKONKWO & ORS V. OKONKWO & ORS (2010) LPELR-9357(SC), this Court Per Adekeye, J.S.C at Pp.33- 34, stated thus:-

“The learned trial judge relied on the case of Adisa v. Oyinwola to reinforce his stand that the Onitsha High Court could exercise jurisdiction on hand in non-urban areas of the State. The stand of the learned trial judge was appropriate as he could take judicial notice under Section 73 of the Evidence Act of the latest decision of the Supreme Court on the controversial issue of land situate in non-urban areas of the State. The judgment came into force before the Court delivered its judgment in this case at the end of July 2000.”

In the persuasive authority of Idris v. A.N.P.P. (2000) 8 NWLR (pt. 1088) 1 at 155, the Court below held per Owoade, JCA that:

“A Court of law is perfectly entitled to take judicial notice of all laws, including the pronouncement of the Supreme Court. In the instant case, the existence of the judgment of the Supreme Court in Action Congress v. INEC (2007) 12 NWLR (Pt. 048) 222 was a fact in issue under Section 52 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990, and the Tribunal rightly took judicial notice of the pronouncement of the Supreme Court in the case to the effect that INEC had no powers to disqualify any candidate from contesting an election on the basis of an indictment not made by a Court of law.”

​In the instant case, there was a pronouncement of this Court dismissing the appellant’s appeal against the judgment of the Court of Appeal in Appeal No. CA/E/80/88 to which the attention of the trial Court was drawn vide the 2nd Respondent’s pleadings. His Lordship was entitled to and in fact ought to have taken judicial notice of that judgment by this Honourable Court.

The Appellants cannot be availed by the argument that no evidence was led in support of the 2nd Respondent’s defence because that Amended Statement of defence of the 2nd Respondent formed part and parcel of the processes before the trial Court for which his Lordship is enjoined to take judicial notice of having particular regard to the fact pleaded as to the decision of this Court dismissing the appeal against Appeal No. CA/E/80/88. In GARUBA & ORS V. OMOKHODION & ORS (2011) LPELR -1309(SC) Per CHUKWUMA-ENEH, J.S.C. P.40. This Court emphasised this point thus:-

“…it is trite that the Court before whom a proceeding is pending or has been completed takes judicial notice of all the processes filed in the proceeding as well as the proceeding itself including the judgment as the case may be and so following from this proposition of law all the processes to be relied upon in any application made before that Court in the proceeding are judicially noticed.”

The Appellants have argued albeit in error that the issue of estoppel rem judicata was not raised by any of the Respondents at the trial Court and no leave was obtained from the Court below to raise same as a fresh point of law to which end, the decision of their lordships should be set aside. They rely on the case of Bello v. Aruwa (1999) 8 NWLR (Pt. 615) 454, and Nigeria Breweries Ltd v. Obioha (1999) 6 NWLR (Pt. 605) 115.

The arguments of the appellant are certainly from a wrong place. It has been demonstrated that the issue of res judicata was raised by the 2nd respondent and being an issue of jurisdiction, it can be raised at anytime. In IGBEKE v. OKADIGBO & ORS (2013) LPELR-20664(SC) Per GALADIMA, J.S.C, the Supreme Court held thus:

“A plea of res judicata is a jurisdictional issue by which a Court of law is being asked not to assume jurisdiction. A preliminary objection when successfully utilized is capable of determining the proceedings in limine. See AYUYA v. YONRIN (2011) 10 NWLR (Pt.1254) 135 AT 160-160, UKAEGBU v. UGOJI (1991) 6 NWLR (Pt.196) 127 at 44 and KWARI v. RAGO (2000) FWLR (Pt.22) 1121 at 1142.

In OMOKHAFE V. ESEKHOMO (1993) LPELR-2649(SC) Per Karibi Whyte, JSC at P.25, this Court held thus:

“A successful plea of res judicata operates not only against the parties whom it affects, but also ousts the jurisdiction of the Court by the parties and their privies on the same issues and subject matter.” (Emphasis mine)

Similarly, in UKAEGBU & ORS V. UGOJI & ORS (1991) LPELR- 3338(SC) Per BABALAKIN, J.S.C. at P.23, this Court held that:-

“Res judicata on the other hand, operated not only against the party whom it affects, but also against the jurisdiction of the Court itself. The party affected is estopped per rem judicatam from bringing a fresh claim before the Court. At the same time, the jurisdiction of the Court to hear such claim is ousted.”

On the question, having regard to the record, the Court below was not right in holding that there was nothing showing that the 1st Respondent was given the opportunity of cross-examining PW2 or the opportunity to in fact testify in its defence before the case was adjourned for address and that the date of judgment was shrouded in secrecy. And whether the Court below was right to have dismissed the Appellants’ preliminary objection on the ground that two issues were not raised from the same ground of appeal as wrongly contended and that even if the objection succeeded as it relates to issues 2 and 3 raised by the 1st Respondent in its Appellants’ brief at the Court below, such success would be pyrrhic in that the same issues were competently raised by the 2nd and 3rd Respondents as their issues 2 and 3 in their own brief. (Distilled from ground 5).

Courts do not exercise jurisdiction in vain or on academic/moot points:

The Appellants’ objection to issues 2 and 3 of the 1st Appellant at the Court below (now 1st Respondent) was indeed academic in that, had the objection succeeded as against that party, the present 2nd and 3rd Respondents would still have competently canvassed the same issues sought to be struck out having been competently raised by them as issues 2 and 3 in their Appellants’ brief.

That objection was therefore in effect moot, theoretical and or academic because had it been resolved in their favour, such victory would have been pyrrhic or having no value. In the circumstance, the jurisdiction of the Court below in respect thereto would only have been exercised in vain. At page 1199 of the record, their Lordships held thus:-

“Even if the preliminary objection were to succeed, this will only affect issues 2 and 3 in the 1st Appellant’s brief. But the same issues were raised in the 2nd and 3rd Appellants’ appeal in their issues 3 and 2 respectively. A cursory look at the two notices of appeal filed by the 1st Appellant on 30/7/1999 and 23/11/1999 will reveal that two issues were never distilled from one ground of appeal … the Court will strike out an issue only when it does not relate to the ground of appeal filed. The preliminary objection has no substance and it is hereby dismissed.”

As correctly held by the Court below, the present 2nd and 3rd Respondents had competently raised the same issues as their issues 2 and 3. The Appellants in fact concede this point when at pages 24-25, paragraph 6.05, lines 6-9 of their Brief, they submit thus:

“We urge your Lordships to so hold and strike out issues 2 and 4 of the 1st Respondent’s brief regardless of the fact that the same issues were raised by the 2nd and 3rd Respondents in their Brief of Argument before the lower Court…”

It is to be noted that under our adversarial legal system, one of the most firmly ingrained principles of law is that the Courts do not exercise their jurisdiction in vain. Thus, where a party presents to the Court a moot point or point which if resolved in its favour will be of no practical utilitarian value as the situation in hand. As to when an issue, appeal or suit constitutes an academic exercise, this Honourable Court in Dahiru and Anor V. APC & Ors (2016) LPELR-42089 (SC) at page 25 held as follows:-

“A suit is academic where it is thereby theoretical, makes empty sound and of no practical utilitarian value to the plaintiffs even if judgment is given in his favour. A suit is academic if it is not related to practical situation of human nature… Once a suit no longer has live issue for determination such a suit can be said to be academic. Courts should on no account in such an instance spend judicial time… in academic exercise. Courts are to determine only live issues.” (emphasis supplied) Similarly, in Odedo v. INEC (2008) 17 NWLR (Pt.1117) 554, (2008) LPELR-2204(SC) Per Niki Tobi, JSC at P. 36, the Supreme Court held thus:-

“l now go to the merits of the appeal and that takes me to what is an academic matter. In Plateau State v. Attorney General of the Federation (2006) 3 NWLR (Pt.967) 346, I said at page 419: “A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situation of human nature and humanity”. An academic issue or question is one which does not require answer or adjudication by a Court of law because it is not necessary to the case on hand. An academic issue or question could be a hypothetical or moot question. An academic issue or question does not relate to the live issues in the litigation because it is spent as it will not inure any right or benefit on the successful party.” (emphasis supplied)

I shall not end without referring to the case of Ardo V. INEC & Ors (2017) LPELR-41919 (SC), this Court per Amina Augie JSC, likened an appeal which is academic to the salt that has lost its taste or seasoning. In the words of his Lordship:

“An action becomes hypothetical or raises mere academic point when there is no live matter in it to be adjudicate upon or when its determination holds no practical or tangible value for making a pronouncement upon it, it is otherwise an exercise in futility. When an issue has become defunct, it does not require to be answered … and leads to making bare legal postulations which the Court should not indulge in; it is like the salt that has lost its seasoning. And like the salt in that term, an academic issue or question does not relate to the live issues in the litigation because it is spent as it will not enure any right or benefit on a successful party.”

It follows that a preliminary objection which determination holds no practical value or tangible gain to the objector upon its favourable adjudication is without doubt, academic. The Apex Court held further.

“A plea by a party that a Court declines from assuming jurisdiction in respect of a matter, where it enjoys same, because doing so is academic and useless is akin to an objection that the Court lacks jurisdiction in the first place. As correctly argued by learned respondent’s counsel, a Court does not proceed in vain. A Court exercises its jurisdiction, where approached, in order to resolve a dispute, address an injury and provide relief. Where as in the instant case the exercise of the Court’s jurisdiction would not resolve any dispute and confer any relief arising from the injury occasioned by the dispute between the parties then, indeed, proceeding will be in vain and useless. Lacking in utility, assumption of jurisdiction in that situation should be avoided by the Court…” per Augie JSC in Ardo v. INEC (supra).

It has now become elementary that the record of proceedings transmitted to the appeal Court form the basis on which an appeal is determined. It is the records of proceedings that authenticate the proceedings and the documented account of events that transpired during trial. To this end, all the parties to an appeal are bound by the contents of the record of the Court. In the same vein, the Appellate Courts are bound by its contents and cannot act outside of or give decisions at variance with the contents of record or proceedings. In Veepee Ind. Ltd. V. Cocoa Ind. Ltd (2008) NWLR (Pt.1105) 486 S.C; (2008) LPELR-3461(SC) Per Muhammad JSC, this Court held thus:

“It is the law that a Court of law has no right to act outside the four walls of the record of appeal placed before it. See Funduk Engr. Ltd V. McArthur (1995) 4 NWLR (Pt. 392) 640; (1995) 4 SCNJ 240.”

In the instant case, the record before this Court shows that on the 5th day of August, 1997 when PW2 had concluded his evidence in Chief, the trial Court adjourned the case to the 29th day of September, 1997 for addresses instead of adjourning proceedings to that date or any other for the Respondents to cross-examine PW2 and ordering that hearing notices be served on them in the wake of their absence from Court on the day that PW2 testified in chief. This is the record before the Court and the Court below was certainly right in so holding. See page 189 of the record.

In the words of their Lordships:

“It is curious to note that on 5/8/1997 after PW2 has concluded his evidence, the Court adjourned to 28/9/1997 for redress and the written address of G.A Udousoro of 6th October, 1997 was filed on 7/10/1997. See page 193 of the record. The records do not show that the 1st Defendant was given opportunity to cross-examine PW2 or testify before the matter was adjourned for address.” (See page 1213 of the record)

There is nothing from the record to show that the 1st Respondent was foreclosed from cross-examining PW2 after the conclusion of his evidence. But assuming without conceding that it was indeed foreclosed, the business of the next adjourned date ought to have been for the 1st Respondent as 1st Defendant to open its case or testify in its defence.

What I have been labouring at conveying is that the appellants have set on this journey on appeal from very flawed grounds, particularly where attempts were made at mixing the facts and confusing reality from the truth in order to persuade the Court to go along with the baseless position of the appellants. The records made a lie of that attempt and it is not difficult to see that there is no merit in this appeal. I therefore dismiss it. I award the sum of N5,000,000 to each of the respondents and to be paid by the appellants.

Appeal dismissed.

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SC.205/2010