Oliver Akujobi & Anor V. Patrick Ekeman & Ors (1998)
LawGlobal-Hub Lead Judgment Report
IBRAHIM TANKO MUHAMMAD, J.C.A
A Writ of Summons with the following indorsement was taken out by the Appellants from High Court No.3 of Kano state against the Respondents:-
“1. An Order of perpetual injunction restraining the defendants, their servants or agents from parading themselves as Executive Members, Officials or accredited representatives of Nguru Development Union Kano;
- An Order of perpetual injunction restraining the defendants from carry (sic) out the proposed “N75,000.00 CONSOLIDATION FUND LAUNCHING” at Randezvous Hotel, No.31, Aitken Road, Kano or any other venue within Kano State, on Sunday, 2nd May, 1991 or any other day, and;
- A Declaration that any such Launching or other activities with the name of Nguru Development Union Kano by the Defendants, their agents or servants is illegal, null and void and of no effect whatsoever.”
On the 31/5/91, learned counsel for the plaintiffs moved the trial court on an Ex-Parte motion asking for an interim injunction against the defendants, their agents, assigns or servants from carrying out the proposed Launching of N75,000.00 “Consolidation Fund Launching” at Randezvous Hotel, No.31, Aitken Road, Sabon-Gari Kano taking place on Sunday, 2nd June, 1991 in the name of Nguru Development Union or any other day. The ex-parte motion was granted and that the order was to be served on all the respondents jointly or severally while the motion on Notice was adjourned to the 24/6/91 for hearing. From the printed record of appeal before me there is no record of what transpired on the 24/6/91, but on 17/7/91, the matter was adjourned further to the 9/9/91. Equally too, the ex-parte order granted on 31/5/91 was revoked by the learned trial Judge in view of the vacation that was to commence.
On 9/9/91 the case was struck out but relisted on 30/9/91. On this very day, learned counsel for the respondents, Mr. Ezeatah moved his preliminary objection as to the competence of the motion. After hearing him and Mr. Atei for appellants/applicants, the learned trial Judge in a reserved ruling which was delivered on 7/10/91 upheld the preliminary objection of the respondents and the motion for committal was struck out. It is on record also that all moves to settle broke down. Accordingly, pleadings were filed and exchanged. Meanwhile, before the commencement of hearing, learned counsel for the respondents filed an application praying the court under Order 5 Rule 20 of the High Court Rules, to strike out paragraphs 18 and 20(b) of the new statement of claim as it amounted to an abuse of court process. This application was heard on 27/9/93. Ruling on same was delivered on 1/8/94.
The appellants herein who were the plaintiffs at the trial court were dissatisfied with both rulings of 7/10/91 and 1/8/94 and they appealed against same. Two notices of appeal were filed: Notice filed on 31/1/95 which has three grounds of appeal is in respect of the ruling delivered on 1/8/94 and Notice filed with leave of this Court granted on 6/5/98 with three grounds too, is in respect of the ruling delivered on 7/10/91.
Parties filed and exchanged written briefs of argument. Learned counsel for the appellants formulated in his amended brief the following issues:-
“(i) Whether the decision reached by the learned trial Judge in his Ruling dated 7th October 1991 can be sustained having regard to the conflicting affidavit evidence before the court.
(ii) Whether the learned trial Judge was right in holding in his Ruling dated 1st August 1994 that the issues raised in paragraphs 18 and 20(b) of the statement of Claim has been settled once and for all in his Ruling dated 7th October 1991 and can no longer be litigated upon by the parties.”
Learned counsel for the respondents formulated only one issue:-
“Whether the learned trial Judge was right in his Ruling of 1st August, 1994 that he had indeed reached a decision on the issues sought to be raised in paragraph 18 and 20(b) (sic) of the statement of claim and so whether it is permissible to allow a relitigation of those issues.”
Arguing the appeal, the learned counsel for the appellants submitted that from the contents of the averments in the several affidavits before the trial court in connection with the motion for contempt of the court’s order, the affidavits were conflicting and that even the learned trial Judge conceded in his ruling of 7th October that there were conflicts in the various affidavits which would require oral evidence. Learned Counsel cited several authorities including: FALOBI V FALOBI (1976)9-10 SC 1 AT 14-15 arguing that oral evidence was the only determinant as to whether or not the ceremony held by the respondents at the Bukavu Barracks of the Nigerian Army Kano was a send-off party or the Launching of the Consolidated Fund. He submitted further that the question of whether the ceremony which took place at the Army Barracks was a Launching of the N75,000.00 Consolidated Fund or a Send-Off party was purely one of fact and not law. He urged us not to allow the decision to stand.
On Issue No.2, the learned counsel argued that paragraphs 18 and 20(b) of the new statement of claim, which the respondents, sought to expunge from the statement of claim, had direct link with the question of the Launching the Consolidated Fund, upon which the trial court had ruled. Learned Senior Advocate conceded that by allowing the paragraphs to stand, the appellants would have been permitted to relitigate a matter which had been adjudicated upon. His main contention on this issue however, is that the issue of whether the respondents held a launching of a consolidated fund was raised and decided in a contempt proceeding which was interlocutory and that such a decision was taken at a time when pleadings had not been filed in the case. Further, that, none of the deponents to the various affidavits filed in court gave oral evidence nor did they call witnesses. Inspite of all these, the learned trial Judge went ahead to deliver his ruling which touched on the substantive matter.
In his submission before the Court on the 5th day of October 1998, learned counsel for the respondents stated that he initially formulated only one issue relating to the decision of 1/8/94. However, on page 7 of the respondents’ brief, learned counsel advanced an alternative argument which covered the other points raised in the appellants’ brief on the ruling of 7/10/91. Learned counsel argued in the brief that once the issue of Launching the N75,000.00 Nguru Development Union Fund had been distinctly raised and determined, then the general rule embedded in ISSUE ESTOPPEL shall operate against relitigating the issue. He cited NWOPARA OGBOGU & ORS V NWONUMA NDIRIBE & ORS (1992)6 NWLR (PT.245)40 AT 67. In his alternative argument, learned counsel for the respondents submitted that there were no material conflicts in the affidavit and that the averments upon which the lower court relied were never denied and were thus deemed admitted. He finally argued that there was documentary evidence, i.e. Exhibit A4 upon which the lower court relied to make its decision. He urged us to dismiss the appeal. Now I have set out the facts of this case supra. I think my spring board for considering this appeal should start from the appellants’ application for committal of the respondents to prison for contempt of the trial court’s order granted per an ex-parte motion on the 31st day of May, 1991. The motion for contempt committal was struck out on 7/10/91 when a preliminary objection as to the competence of the motion was taken. Relief one of that motion paper reads as follows:
“1. An Order committing the respondents to prison for non-compliance with the Order of the interim injunction of Honourable Court dated 31st May, 1991 restraining them individually or collectively, their respective or joint agents, servants and assigns from Launching the “N75,000 CONSOLIDATION FUND” scheduled to take place at Rendezvous Hotel Sabon Gari, Kano on 2nd June, 1991 or any other day in the name of Nguru Development Union.”
In the Notice of preliminary objection filed on 28/8/91, learned counsel for the respondents prayed for the dismissal of the motion for contempt on the grounds that it is incompetent, filed out of malice, and not properly before the court negatively affecting the jurisdiction of the court. In his reserved ruling, the learned trial Judge upheld the preliminary objection and struck out the motion for committal.
While striking out the motion for committal, the learned trial Judge did observe:-
“It is necessary to ask if a Send Off Party could be regarded as the same thing as Launching of Funds. Without bordering to look up (sic) the definitions of the two phrases the two could not be same. The defendants/respondents could not have been able to defend their action for holding a Send Off party. If the terms of the order had been to prevent them from holding any other ceremony which may have the character of Launching of a fund on that day. Since the terms of the order did not include any other ceremony having the character of a Launching of fund, I cannot see how the respondents could be held liable for an offence which they are not asked not to commit.”
This holding has clearly, in my view, stated that the defendants/respondents did not breach the terms of the order granted on 31/5/91.
However, learned counsel for the appellants quoted in his brief of argument, some paragraphs from the several affidavits before the learned trial Judge that such affidavits were in conflict and that the learned trial Judge ought to have called for oral evidence to resolve the conflict before arriving at a decision. Yes! the law is firmly settled that a court of law has no competence to SUO MOTU and willy-nilly reconcile conflicting affidavit without calling for oral evidence. See: PHARMACISTS V ADEBISIRI (1978)5 SC 43; NATIONAL BANK V ARE BROTHERS (1977) 6 SC 97; FALOBI V FALOBI (1976) 9 & 10 SC AT PAGE 15; EBOH V OK1 (1974)1 SC 179; OLU-IBUKUN V OLU-IBUKUN (1974) 2 SC 41; UKU V OKUMAGBA (1974) 3 SC 35; NWOSU V IMO STATE ENVIRONMENTAL AUTHORITY (1990) 2 NWLR (PT.135) 688; GOVERNMENT OF ASHANTE V ADJUAH KORKOR (1938) 4 WACA 83 AT 85; AKUSETE V AKINDUTIRE (1966)1 ALL NLR 147 AT 148; GARBA V UNIVERSITY OF MAIDUGURI (1986)1 NWLR (PT.18) 350 AT 579; FALUYI V ODERINDE (1987) 4 NWLR (PT.64)155 AT 165; ATANDA V OLARENWAJU (1988) 4 NWLR (PT.89) 394 AT 404; OLOYE V LAGOS STATE GOVERNMENT (1990) 3 NWLR (PT.136) 115 AT 123 – 124; DEGBEKUN V OMOLEYE (1990) 5 NWLR(PT.153) 679 AT 689; NIGERIA ARAB BANK LTD. V OGUERI (1990) 6 NWLR (PT.159)751 AT 760. The learned trial Judge himself appreciated that position of the law. However, is that position of the law applicable in all situations? My answer is in the negative. The law has made some exceptions.
Thus, it is not in every conflict in affidavit evidence that the trial court must call oral evidence in resolution thereof. Such exceptional circumstances include inter alia:
a situation where there is sufficient documentary evidence upon which the court shall rely to resolve the conflict.
See: NWOSU V IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (PT.135) 688 AT 718; EZEGBU V FIRST AFRICAN TRUST BANK LTD. (1992) 1 NWLR (PT.220) 699 AT 720; KANNO V KANNO (1986) 5 NWLR (PT.40) 138; LIJADU V LIJADU (1991) 1 NWLR (PT.169) 627 AT 649; MAGNUSSON V KOIKI (1991) 4 NWLR (PT.183) 119 AT 129.Analysing the submission of learned counsel for the respondents that the decision of the lower court not to call oral evidence and to find that the respondents did not Launch the N75,000.00 Nguru Development Union Fund was because the learned trial Judge relied on Exhibit A4 (Police Report) is so potent a submission which I cannot but agree with. Exhibit A4 (Police Report) was exhibited in paragraph 32 of- the counter affidavit filed by the respondents and reliance was made on it by the learned trial Judge. The decision of the learned trial Judge in his ruling of 7th October, 1991 is, in my view, unassailable.
In dealing with issue two of the appellants’ issues, I find it necessary to quote herein below, paragraphs 18 and 20(b) of the statement of claim placed before the trial Court:-
“18. The plaintiffs. further aver that no account of the proceeds of the Launching of the Consolidated Fund of the Nguru Development Union, Launching by the defendants at the Bukavu Army Barracks of the Nigerian Army Kana has been rendered to them by the defendants and the defendants had no permission either from the plaintiffs or from the parent body of the Nguru Development Union to hold the said Launching.
- Whereof the plaintiffs claim against the defendants :-
(b) An Order directing the defendants to render an account to the plaintiffs of the collections made by them at the Launching of the Nguru Development Union Kano State Branch held at the Bukavu Barracks of the Nigerian Army Kano on the 2nd day of June, 1991.”
It is important to note from the outset that the learned counsel for the appellants conceded in his amended brief of argument (page 9 last paragraph) that these averments are dependent on whether or not the respondents held a Launching of the NGURU DEVELOPMENT UNION CONSOLIDATED FUND.”
The finding of the learned trial Judge was that the respondents held a “Send-Off Party” in honour of one of their members at the Bukavu Army Barracks and not a Launching of the Nguru Development Union Consolidated Fund and he did not find the respondents guilty of breach of the court’s order.
Thus, as far as the learned trial Judge was concerned, there was no launching of the Nguru Development Union Consolidated Fund. Thus, the learned trial Judge had decided, in my view, the issue of launching the said Fund and any issue that is capable of generating a further decision or reconsideration of the said launching will be academic and a ruse. To allow the issue to be reconsidered will tantamount to negating the principle of ISSUE ESTOPPEL. It has been recognised for long that when a fact has been agreed on, or decided in a court of record, neither of the parties shall be allowed to call it in question and have it retried at any time thereafter, so long as the decision stands unreversed by an Appellate Court. It also applies to final adjudication, as is the case in this appeal, of material material issue by a court of competent jurisdiction and it binds parties in any subsequent proceeding between or among them irrespective of difference-in forms-or causes of action. So, where a party brings an action against another for a particular cause and judgment is given upon it, there is a strict rule of law that he cannot bring another action against the same party for the same cause. This is estoppel by judgment. But where within one cause of action several issues have arisen and each has been distinctly decided between the parties then the general rule that neither party can be allowed to relitigate that issue(s) allover again reigns supreme. The same issue cannot be raised by either of the parties again in the same or subsequent proceedings except where special circumstances exist. This is ISSUE ESTOPPEL. See: BADAR BIE V HABIB M. NOORDIN (1909) AC 618; OGBOGU & ORS V NDIRIBE & ORS (1992) 6 NWLR (PT.245) 40.
In the final result I find no merit in this appeal and IT IS ACCORDINGLY HEREBY DISMISSED. The two rulings of the lower court appealed against by the appellants id est: (1) the Ruling of 7/10/91 and (2) that of 1/8/94 ARE HEREBY AFFIRMED. The respondents are entitled to N3,000.00 costs from the appellants.
Other Citations: (1998)LCN/0471(CA)
