National Insurance Commission & Anor. V. First Continental Insurance Company Ltd. (2006)
LawGlobal-Hub Lead Judgment Report
SOTONYE DENTON-WEST, J.C.A.
This is an appeal against the ruling of the Federal High Court (Lagos Division) of the 22nd day of July, 2003 per Abutu, J. wherein the trial court refused to dismiss suit No. FHC/L/CS/854/99 for being estoppel barred and an abuse of the process of court.
The appellants, who were the defendants at the court below being dissatisfied with the ruling filed a notice of appeal in this court dated the 1st day of August, 2003 and raised three grounds of appeal;
- Ground One
The honorable trial court erred in law when it held that the parties and the issues in suit No. FHC/L/CS/26/99 and suit No. FHC/L/CS/854/99 are not the same whereas the parties and the issues in the two suits are essentially and circumstantially the same with each other.
- Ground Two
The honorable trial court rightly found as a fact that the two suits (suit No. FHC/L/CS/26/99 and suit No. FHC/L/CS/854/99) have a common cause of action, was wrong in law to suddenly turn around to hold that the issues and the parties in the two suits are still different.
- Ground Three
The honorable trial court erred in law when it held that the Institution of suit No. FHC/L/CS/854/99 is not an abuse of court processes.
The appellant sought for an order of this court setting aside the ruling of the lower court of the 22nd day of July, 2003 and dismissing the respondent’s suit for being an abuse of the process of court.
The appellant filed its brief of argument on the 15th of March, 2004 and formulated two issues for determination:
Issues for determination
- Whether the honorable court was right in holding that suit No. FHC/L/CS/26/99 does not operate as estoppel against the present suit No. FHC/L/CS/854/99.
- Whether the institution of suit No. FHC/L/CS/854/99 does not constitute an abuse of the court process in view of the earlier court decision in suit No. FHC/L/CS/26/99.
The first issue formulated by the appellant is distilled out of the first and second ground of appeal while the second issue formulated is distilled out of the third ground of appeal.
The respondent filed its brief of argument on the 17th of September, 2004 and adopted the two issues for determination formulated by the appellants.
The appellants stated that the conditions precedent to estoppel per res judicata had been met as set out in the case of Maya v. Oshuntokun (2001) 11 NWLR (Pt.723) 62 at 67 R. 7 thus;
a) the parties or their pri vies are the same that is to say the parties involved in both the previous and present proceedings are the same.
b) the claim or the issue in dispute in both the previous and the present actions are the same.
c) the res that is to say, the subject matter of the litigation in the two cases is the same.
d) the decision relied upon to support the plea must be valid, subsisting and final; and
e) the court that gave the previous decision relied upon to sustain the plea must be a court of competent jurisdiction.
The appellants submitted that the parties in the two suits are the same and that it didn’t matter that the present respondent singled himself out of the 117 plaintiffs in the first case and that the Attorney-General was not made a party to the second action. The appellants relied on the cases of; Ikeni v. Efamo (2001) 10 NWLR (Pt. 720) 1 at 7 R 8 and Maya v. Oshuntokun (2000) 11 NWLR (Pt. 723) 62 at 67 respectively. The appellants submitted that the claim in the two cases were the same.
The respondent in its brief of argument filed on the 17th of September, 2004 argued that the parties in the two suits in question are not the same in that it claimed not to have been involved in the previous case but was merely listed as a party and that the present case was instituted by it alone in its corporate capacity. The respondent urged this court to affirm the findings of the learned trial Judge in it’s ruling when it held that the parties were the same.
The respondent argued further that the issues in dispute in the two suits are different and not the same, it is the contention of the respondent that while the issue in the previous case was the competence and or authority of the appellants to issue the order via a letter dated 10th December, 1998 to all insurance companies to pay up the increased share capital or have their licenses withdrawn, the issue in the present case concerned the order of certiorari concerning the same said letter.
The respondent also contended that the res in the two cases are not the same. According to the respondent the res in the previous suit is the letter of the appellant dated 10th December, 1998 while the res in the present suit is the imminent threat of the defendant to revoke the license of the respondent for non compliance with the Insurance Decree.
The respondent stated that the appellants having failed to establish the existence of the strict conditions laid down by the Supreme Court in the case of Oshodi v. Eyifunmi (2000) 13 NWLR (Pt. 684) at 298 the appellants plea of res judicata should be refused and the appeal should be dismissed.
The appellants filed a reply brief on the 4th of October, 2004 and challenged the position of the respondent in claiming not to have participated in the previous action despite being listed as the 35th defendant and being represented by counsel. The appellants stated that it was late in time for the respondent to now excuse itself from the suit it would have benefited from if it had been successful and that even if the appellant was not listed as a party specifically it still would have been caught by the principle of standing by. The appellants contended that the respondent was bound by the judgment of the case. The appellants relied on the case of Dokubo & Anor. v. Bob Manuel & Ors. (1967) NSCC 119 at 125, Kpokpe v. Usilo (1978) NSCC 413 at 414, and Amida & Ors. v. Oshobayo (1984) NSCC 531 at 532; (1984) 7 sc. 68. All in prove of the position of the law that a party for the purpose of estoppel per rem judicata need not be a named party but includes a sleeping party who knew about the case and looked on and who ultimately would be affected by the outcome of the action.
The appellants argued in prove of the fact that the actions were substantially on the same issues that; if the previous suit had succeeded it would hardly be necessary for the respondent to bring the present action. In other words the same issue would have been settled had the court found in favour of the respondent in the previous suit.
The appellants urged this court to discountenance the argument of the respondent on the issues of a winding up petition, the rulings of Odunnowo, J. and Jinadu, J. the interlocutory injunctions and all other issues not forming part of the issues of the present appeal.
The issue before me in this appeal is whether the lower court was right in holding that suit No. FHC/L/CS/26/99 do not operate as estoppel against the present suit No. FHC/L/CS/854/99 and consequently whether the present suit do not constitute an abuse of the process of court.
It is pertinent to make clear what estoppel per rem judicata is and how it operates. The case of Oshodi v. Eyifunmi (2000) 13 NWLR (Pt. 684) at 298 is succinct on the issue of estoppel. The Supreme Court held in that case;
On scope of operation of res judicata;
“the plea of res judicata operates not only against the parties but also against the jurisdiction of the court itself and robs the court of its jurisdiction to entertain the same cause of action on the same issues previously determined by a court of competent jurisdiction previously determined between the same parties. The parties affected are estopped per rem judicatam from bringing a fresh action before any court on the same cause and on the same issues already pronounced upon by the court in a previous action.”
In effect, if it is herein determined that the case of the respondent is caught up by the doctrine of res judicata it would inadvertently mean that the court has no jurisdiction to hear the present case. The court held further in the same case, on conditions precedent to a successful plea of estoppel per rem judicatam;
For the plea of estoppel per rem judicatam to succeed the party relying on it must establish that:
a) the parties or their privies are the same, that is to say, that the parties involved in both the previous and the present proceedings are the same;
b) the claim or the issue in dispute in both the previous and the present actions are the same;
c) the res that is to say the subject matter of the litigation in the two cases is the same;
d) the decision relied upon to support the plea of estoppel per rem judicatam must be valid, subsisting and final;
e) the court that gave the previous decision relied upon to sustain the plea must be a court of competent jurisdiction.
It was further held in the same case that unless the above conditions are met the plea of estoppel per rem judicata cannot be established. It therefore follows that unless the appellant can prove that the case of the respondent satisfies the five conditions listed above its plea of estoppel per rem judicata must fail, since it is the position of the law that the party who raises the plea carry the burden of proof. The conditionalities listed above were reiterated in the case of Afolabi v. Gov. of Oyo State (2002) 13 NWLR (Pt. 836) at 119 where it was held per Kutigi, JSC that unless all of the above conditionalities were all met the defense of estoppel per rem judicata must fail. It therefore follows that the conditions must be satisfied conjunctively and that the failure of anyone of them is fatal to the plea of the appellant in the present case. His Lordship Kutigi, JSC reiterated the same position of the law in the case of Odutola v. Oderinde (2004) 12 NWLR (Pt. 888) at 574; that the failure of a party relying on the plea of res judicata to meet any of the conditions means failure of the plea in its entirety.
Two kinds of estoppel have been identified by the court; issue estoppel and cause of action estoppel. See Oshodi v. Eyifunmi (supra) see also the holding of Ejiwunmi, JSC in the case of, on types of estoppel by record inter-parties Ito v. Ekpe (2000) 3 NWLR (Pt. 650) at 678and per rem judicata;
a) cause of action estoppel – this occurs where the action is merged in the judgment, that is transit in remjudicata. Thus, on this principle of law or rule of evidence once it appears that the same cause of action was held to lie (or not to lie) in a final judgment between the same parties or their privies who are litigating in the same capacity (and on the same subject matter), there is an end to the matter. They are precluded from relitigating the same cause of action.’
b) issue estoppel – this usually arises where an issue has earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies). This is based on the principle of law that a party is not allowed to contend the contrary or opposite of any specific point which having been once distinctly put in issue, has with certainty and solemnity been determined against him…”
In his ruling, the learned trial Judge held that the parties and the issues were not the same even though there appeared to be a common cause of action. The relevant portion of the ruling appealed against at pages 86 and 87 is hereunder reproduced;
“The plaintiff has not contested the application. This application is predicated on the decision in suit No. FHC/L/CS/26/99 while the ruling in which one of the set of two documents annexed to the affidavit in support as exhibit ‘court decision’. As in the schedule annexed to the second further and better affidavit, as exhibit P/R1A the plaintiff in the instant case is one of the 117 plaintiffs in suit No. FHC/LC/26/99 While the 1st defendant in the instant case is the 2nd defendant out of the three defendants in suit No. FHC/L/CS/26/99. The action in suit No. FHC/L/CS/26/99 was commenced by an originating motion for an order of certiorari to bring into the court for the purpose of being quash, the decision made by the defendants, firstly directing that all Insurance Companies to deposit 100% of their share capital with the Central Bank of Nigeria on or before the 10th of January, 1999 and secondly directing that all Insurance Companies registered before 1997 be re-registered before they could be given certificate of authority to continue in business. The action was not successful. In the present action the plaintiff who was the 35th plaintiff in the suit No. FHC/L/CS/26/99 has sued the 1st defendant in the said suit No. FHC/L/CS/26/99 along with the Commissioner for Insurance claiming the following:
“1. A declaration that the intention to revoke the registration of any Insurance Company that fail to comply with the S. 11 of the Insurance Decree No.2 of 1997 after May 15, 1999 by the Commissioner for Insurance (Commission) and/or National Insurance Commission (NAICOM) is ultra vires and/or illegal.
- A declaration that failure to comply with S.11 of the Insurance Decree No.2 of 1997 after May 15, 1999 is not one of the instances under which the Commissioner and/or NAICOM have/has the power to revoke the plaintiff’s registration as an Insurer.
- A perpetual Injunction restraining the Commissioner and/or NAICOM or their agents or privies from revoking the plaintiff’s registration as an insurer otherwise than in accordance with the Insurance Decree No.2 of 1997.”
Clearly, even though in the suit No. FHC/L/CS/26/99 and the present suit there appears to be a common cause of action the issue in the two cases are not the same. The parties are also not the same. As settled by the authorities instituting multiplicity of action on the same subject matter against the same opponent on the same issues constitutes an abuse of court process. See Sarah v. Kotoye (1992) NWLR (Pt. 26) 156 at 188-189, Oyegbola v. Eso West Africa Incorporated (1966) 1 All NLR 170 and Alade v. Alemaloke (1988) 1 NWLR (Pt. 69) at 207.
In the instant case, the issue and the party in the suit No. FHC/L/CS/26/99 not being the same as the parties and the issues in the instant case it cannot be said that the present suit is an abuse of court process. It is my firm view that the present suit is not an abuse of court process. The objection is overruled and the motion on notice is hereby dismissed.”
The lower court held that the issues and the parties of the present appeal are not the same as those of the previous suit. I will start by considering the parties before the court in the suit No. FHC/L/CS/26/99 as against the parties before the court in the present suit.
It is common place that the respondent to the present appeal who is the plaintiff before the lower court was the 35th plaintiff in the previous suit amongst 117 Co-plaintiffs while the two appellants who are the defendants in the lower court are the second and third defendants in the previous suit with the Attorney-General being the first defendant therein. I can only assume that the absence of the 116 other plaintiffs and the Attorney-General from the present suit led the learned trial Judge to the conclusion that the two suits don’t have the same parties. The issue for my consideration in the present appeal therefore is whether the fact that the Attorney-General was not joined by the respondent in the present action and that the respondent sued individually and not severally alongside the other co-plaintiffs in the previous case will mean that the pm1ies in the two suits are different and distinct. Better put; if a co-plaintiff in an action instituted by several plaintiffs severally and jointly, brings an action against a co-defendant in the same previous action, which action is for the same claim, has the same issue for the determination of the court and for which a competent court had given a final, subsisting and binding judgment in the previous action, will the doctrine of estoppel avail such a defendant? Or will the court re-litigate on the same issue for the same claim arising out of the same cause of action for the reason that the plaintiff has sued individually and singularly as against severally amongst other plaintiffs in the previous suit?’
It is worthy of note, that the respondent has not introduced a new party to the present action but has excluded some parties involved in the previous suit. Had the respondent introduced a new party to the present action or had it been that the respondent was represented or sued in a representative capacity in any of the two suits, I would not embark on this analysis, I would most likely hold without hesitation, that the parties were different. The parties in the previous suit being present on the same sides in the present case satisfy the first condition of the parties being the same in my firm view. I am encouraged in this position by the Supreme Court in the case of Ikeni v. Efamo (2001) 10 NWLR (Pt. 720) 1 at 7 see ratio 8 therein. I therefore answer the questions raised above in the negative and hold that the parties to the two suits are the same, contrary to the finding of the learned trial Judge.
The second condition of estoppel per rem judicata, against which I shall test the facts of the appellants’ plea, is whether the same claim/dispute exists in the two suits. In the interest of justice, I shall reproduce the claim in both suits for the ease of my consideration.
In the previous suit with No. FHC/L/CS/26/99 the claim of the plaintiff is as follows;
“4. Reliefs sought from the Federal High Court:- (a) for an order of certiorari to remove into the Honorable Court for the purpose of being quashed the following orders of the defendants contained in their letter to the plaintiffs dated 10th December, 1998:-
(i) …
(ii) …
- Grounds on which relief is sought are as follows:-
i) …
(ii) …
(iii) …
(iv) …
(ix) that the defendants jointly and severally have no power to give any directive mandating or requiring the plaintiffs to re-register as insurers under Decree No.2 of 1997, and have no power to authorize them to continue to be in business as they are validly registered as such under Decree No.2 of 1997.
(x) the defendants jointly and severally exceeded their powers and violated the provisions of the insurance decree of 1997, in requiring the plaintiffs being insurers registered pre-1997 and having been deemed as such under the decree to deposit in the Central Bank of Nigeria 100% of their paid up capital as if each of them were not entitled to the benefit of section 12 of the Decree.”
In summary, it suffice to say, that the plaintiffs in the previous suit one of whom is the plaintiff in the present case challenged the authority of the defendants to revoke their licenses as threatened in the letter of 10th December, 1998 and as per Decree No.2 of 1997.
The claim of the plaintiff in the present suit at the court below as set out in page 29 of the record of appeal is as follows:-
- a declaration that the intention to revoke the registration of any insurance company that fails to comply with section 11 of the Insurance Decree No.2 of 1997 after May 15, 1999 by the Commissioner for Insurance (Commission) and or National Insurance Commission (NAICON) is ultra vires and or illegal.
- a declaration that failure to comply with section 11 of the Insurance Decree of 1997 by May 15, 1999 is not one of the instances under which the Commissioner and or NAICON have/has the power to revoke the plaintiff’s registration as an insurance.
- a perpetual injunction restraining the Commissioner and or NAICON or their agents and or privies from revoking the plaintiff’s registration as an insurer otherwise that in accordance with the Insurance Decree No.2 of 1997.
Without doubt, the plaintiff in the present case just like in the case before also challenged the authority of the defendants who are the appellants herein to revoke the licensees) of the plaintiff as threatened in the same letter of the plaintiff dated 10th December, 1998 for the same reasons as in the previous suit and as per Decree No.2 of 1997. I hold per force; that the issues/dispute in suit No. FHC/L/CS/26/99 and FHC/L/CS/854/99 are the same in con and purport. Suffice for me to add, that if the previous suit had succeed in all it’s prayers, it most certainly would have been needless for the respondent to institute the present action since the issues involved would have therein be resolved in its favor.
The third condition of the law against which I shall now test the plea of the appellant, is whether a common res/subject matter exist in the two actions. The respondent urged me to hold that the letter of the appellants dated 10th December, 1998 is the res of the previous action while the corporate existence of the respondent is the res in the present action. I find this argument to be desperate and contradictory, even on the face of the respondent brief of argument at paragraphs 1.3, page 9 of the said brief. I align myself with the learned trial Judge in finding that a common cause of action existed between the parties in the two suits and in my firm view the cause of action is obviously the letter of the appellants dated 10th day of December, 1998; both suits apparently arose out of the said letter, but by no stretch of jurisprudence could the letter itself be rightly held to be the res in any of the two actions.
The res of course is what is being litigated upon, it is the subject matter of the action which both parties seek to preserve for itself, it is what the Courts have a duty to preserve its existence in order to give the judgment of court an effect. In the present case as in the previous suit, it is the corporate existence of the respondent or the power/authority of the appellants to revoke the license/registration of the respondent. I therefore agree with the appellants, that the two suits in question have the same res.
The next condition of the law against which the plea of estoppel per rem judicata made by the appellants must be tested is whether the decision relied upon in making the plea is valid subsisting and final.
In his argument under this point of law the respondent introduced a lot of extrinsic issues such as the ruling of Jinadu, J., the winding up petition filed by the appellants in Abuja the subsisting interlocutory injunction, the contents of the ruling of Abutu, J. and its effect/purport and whether the decisions in the two relevant suits were the same or not. The respondent even submitted that the decision of Abutu, J. in suit No. FHC/L/CS/854/99 is final subsisting and valid. The said decision of Abutu, J. is certainly not the one with which to test the law, rather it is the decision of Odunowo, J. in the previous suit which the appellant relies upon in its plea of estoppel per rem judicata. Like I said earlier, these are extrinsic issues which in my sincere view are not relevant to the present issue. The issue is; is the decision relied upon in the plea of estoppel valid, subsisting and final. Simpler put, it is whether the decision is void/voidable or not, whether the decision has been appealed against and or overturned or vacated/varied by the same court and whether the decision is interlocutory/nissi or final.
In my perusal of the record of appeal, the briefs of argument of both parties and upon hearing the learned counsel adopt their respective briefs the ruling sought to be relied upon which is the ruling of the 15th day of April, 1999 of his Odunowo, J. in suit no. FHC/L/CS/26/99 is neither void nor voidable it has neither been varied or vacated by the lower court nor been appealed against. The said ruling is decisive of the issues involved in the application of the applicants therein not being interlocutory (the prayer for an injunction having been refused). The ruling is therefore valid, subsisting and final. The appellants in my candid view have scaled over the fourth condition for the survival of its plea.
The last condition which the appellants must satisfy to succeed in their plea of estoppel per rem judicata is whether the court has made the decision which the appellants rely upon in their defence of estoppel was made by a court of competent jurisdiction. This fact is not contested by the respondents herein. It is therefore not in issue between the parties. I do not intend to belabor the obvious by dwelling on the said last condition, but for the benefit of doubt, the abundance of caution and for the records. I would like to state that; the defendants in the previous suit being relied upon by the appellants in the present case, being the appellants themselves and the Attorney-General, are agents of the Federal Government and the administrative decision of the said agents of government was being challenged in the said previous suit by the respondents herein amongst others, the case falls within the exclusive jurisdiction of the Federal High Court under section 251 of the Constitution of the Federal Republic of Nigeria, 1999. The ruling sought to be relied upon by the appellants is therefore the ruling of a court of competent jurisdiction.
In my firm view, the case of the appellants satisfy the legal conditions for the plea of estoppel per rem judicata as repeatedly enunciated by the Supreme Court in the cases of; Oshodi v. Eyifunmi (2000) 13 NWLR (Pt. 684) at 298, Afolabi v. Gov. of Oyo State (2002) 13 NWLR 836 at 119, Odutola v. Oderinde (2004) 12 NWLR (Pt. 888) at 574, Ikeni v. Efamo (2001) 10 NWLR (Pt. 720) 1 at 7 R 8 and Maya v. Oshuntokun (2000) 11 NWLR (Pt.723) 62 at 67.
The first issue canvassed in this appeal is hereby resolved in favor of the appellant and against the respondent, I hold contrary to the lower court, that the case of the respondent in suit No. FHC/L/CS/854/99 is barred by the doctrine of estoppel per rem judicata.
The second issue canvassed in the present appeal flows out of the first issue, in other words, the resolution of the second issue depends on the resolution of the first. The issue is; whether the present suit filed by the respondent, which I have held to be barred by the doctrine of estoppel per rem judicata constitutes an abuse of the process of court.
This court and the court above have consistently held; that instituting multiplicity of action on the same subject matter against the same opponent on the same issues constitutes an abuse of court process. The rationale of the law is that there must be an end to litigation and a litigant should not be made to suffer the same rigor/jeopardy for the same purpose twice. See the cases of; Sarah v. Kotoye (1992) 9 NWLR (Pt. 26) 156 at 188-189, Oyegbola v. Eso West Africa Incorporated (1966) 1 All NLR 170 and Alade v. Alemaloke (1988) 1 NWLR (Pt. 69) at 207. In view of the above, the present suit instituted by the respondents herein constitutes an abuse of the process of court. The second issue for determination in the present appeal is hereby resolved in favour of the appellants.
In view of the foregoing, I find this appeal to be meritorious and I accordingly allow same, the ruling of the trial court herein appealed against is hereby set aside, the case of the respondent at the lower court is accordingly dismissed. Each party to bear its cost.
Other Citations: (2006)LCN/2020(CA)
