Chief Vincent Olie & Ors V. Chief Paul Otuyah & Ors (2007)

LawGlobal-Hub Lead Judgment Report

STANLEY SHENKO ALAGOA J.C.A

At the High Court of Justice Kwale in the Kwale Judicial Division of Delta State of Nigeria the 1st, 2nd and 3rd Respondents as Plaintiffs took out a writ of summons against the 1st, 2nd and 3rd Appellants and the 4th Respondents as Defendants jointly and/or severally for the following reliefs which are also contained in paragraph 29 of their statement of claim dated the 15th day of January 1988-

1. A Declaration that the 1st to 3rd Defendants consistently violate the fundamental terms of the consent Judgment in the consolidated Suit Nos. UHC/43/71, UHC/50/71 and UHC/70/71.
2. A Declaration that the 1st to 3rd Defendants while consistently obtaining benefits under the consent judgment in the consolidated Suits UHC/70/71 have refused declined and/or neglected to perform their legal obligations to Plaintiffs in relation to the burdens therein contained.
3. A Declaration that the 1st to 3rd Defendants did not ever intend to perform their obligations to Plaintiffs under the said consent judgment in Suit Nos. UHC/43/71, UHC/50/71 and UHC/70/71.
4. A Declaration that Plaintiffs were induced to subscribe to the consent judgment in Suits Nos. UHC/43/71, UHC/50/71 and UHC/70/71 by Defendants’ misrepresentation/fraud that 1st to 3rd Defendants would honour their legal obligations to Plaintiffs under the said consent judgment.
5. An Order setting aside the said consent judgment in consolidated Suits Nos. UHC/43/71, UHC/50/71 and UHC70/71 dated 19th day of October 1992.

The 1st 2nd and 3rd Appellants as Defendants filed a joint statement of defence dated 29th December 1988 while the Nigerian Agip Oil Company as 4th Defendant filed a separate statement of defence dated 27th June 1988.

Pleadings were duly exchanged as between the parties and by a Motion on Notice dated 28th May 1989 (Pages 45-49 of the Records of Appeal) the 1st – 3rd Appellants as 1st – 3rd Respondents prayed the Hon. trial court for the following orders:

(i) Setting down for hearing and determination the points of law raised in paragraph 32(a), (c) and (d) of the Defendants/Applicants’ statement of defence filed in the above- mentioned Suit No HCK/13/87 by the 1st, 2nd and 3rd defendants/applicants namely:

32(a) Estoppel per rem judicatam on the ground that the issues raised in this action and the reliefs therefrom are the same or substantially the same issues which were raised, canvassed and dismissed in suit nos. HCK/26/76, CA/148/84 and HCK/20/81.

The present action is therefore only a surreptitious (sic) way of reawakening a settled suit between the same parties and on the same facts and before the same court.

(c) Jurisdiction: Since the issues raised in the Suit are the same or substantially the same as the issues canvassed in the above mentioned suits this Honourable court has no jurisdiction to entertain the present suit.

(d) This action is an abuse of the process of court in view of the reasons given in (c) above.

(ii) Dismissing or striking out the above mentioned Suit No. HCK/13/87 on the grounds set out above AND for such further order or orders as the Honourable court may deem fit to make in the circumstances.

This application praying the court to dismiss or strike out Suit NO. HCK/13/87 was heard and in a ruling dated 30th May 1996 was dismissed with N600 costs in favour of the plaintiffs/Respondents. (See pages 73-97 of the Records of Appeal).

Dissatisfied with this ruling of the trial court dated 30th May 1996, the 1st – 3rd Defendants/Applications at the lower court have appealed to the Court of Appeal with leave granted on 13th June 1996 against the said Ruling as 1st – 3rd Appellants upon seven Grounds of appeal contained in the Notice of Appeal dated 13th June 1996 which can be found on pages 103-105 of the Records of Appeal. The said Notice and Grounds of Appeal with attendant particulars are reproduced hereunder –

IN THE COURT OF APPEAL CIVIL FORM 3 NOTICE OF APPEAL

(Order 3 Rule 2)

Court of Appeal Suit No ….

Kwale High Court Suit No. HCK/13/87

BETWEEN: CHIEF VICENT C. OLIE AND TWO OTHERS APPELLANTS

AND

CHIEF PAUL OTUYAH AND TWO OTHERS RESPONDENTS

TAKE NOTICE that the 1st, 2nd and 3rd defendants being dissatisfied with the decision more particularly stated in paragraph 2 of the Kwale High Court contained in the judgment/order of the Honourable Mr. Justice T.C. Nakwe dated the 30th day of May, 1996 doth hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the relief set out in paragraph 4.

AND the appellants further state that the names and addresses of the persons directly affect by the appeal are those set out in paragraph 5.

2. Part of decision of the lower court complained of: whole decision.
3. Grounds of Appeal:
4. The ruling of the trial court is against the weight of affidavit evidence.
5. The trial court erred in law in holding that the parties in suit Nos. HCK/26/76, HCK/20/81 and HCK/13/87 are not the same

PARTICULAR

(i) The parties in the three suits are the same

(ii) The plaintiffs in the three suits are Benekuku Community and the plaintiffs on record fought the suits in a representative capacity.

(iii) The first set of defendants in the three suits are Umusadege Community and the defendants on record fought the suits in a representation capacity.

(iv) The last set of defendant I the three suits is Nigerian Agip Oil Company limited.

(v) Chief Paul Otuyah who was trickishly made a defendant in suit No.HCK/26/76 is a member of Benekuku Community and his position in HCK/26/76 does not prevent the parties the three sits from being the same.

(vi) The estoppel is brought against Benekuku Community as plaintiffs and not Chief Paul Otuyah as a person.

3. The trial court erred in law in dismissing the appellants application who no new cause of action of claim has arisen since the filing of suit No. HCK/20/81.

PARTICULARS

(i) Comparism of the pleadings in suits No. HCK/20/81 and HCK/13/87 show that no new cause of action arose since the filing of suit No.HCK/20/81.

(ii) Reliefs Nos. 1 & 2 (breach) in suit No. HCK/13/87 are covered by relief No.1 in suit No. HCK/20/81.

(iii) Reliefs Nos. 4 & 5 in suit No. HCK/l3/87 are covered by relief No. 8 in HCK/20/81.

(iv) Relief NO.3 in HCK/13/87 is speculative and does not disclose cause of action.

(v) If the plaintiffs/respondents had any claim the same should have been combined with the claims in suit No. HCK/20/81.

4. The trial court erred in law in failing to consider the pleadings in Suit Nos. HCK/26/76, HCK/20/81 and HCK/13/87 and be thereby come to a wrong decision that the claims in suit No. HCK/13/87 are not the same as claims in suits Nos. HCK/26/76 and HCK/20/81.

PARTICULARS

(i) The trial court compared only the claims in the three suits comparing the pleadings in support of the claims.

(ii) Comparism of the pleadings clearly show that the claims are the same or substantially the same.

(iii) In his ruling in HCK/20/81 Mr. Justice Omosun (as he then was) compared the pleadings in suit NO. HCK/26/76 with the pleadings in HCK/20/81 paragraph by paragraph and came to the conclusion that the parties, the subject matter and the issues in the suits are the same and ruled that the plaintiffs/respondents were estopped from bringing suit No. HCK/20/81.

(iv) Comparism of the pleadings in suit No. HCK/20/81 and HCK/13/87 show clearly that they are the same; the entire pleading in suit No. HCK/20/81 was lifted into HCK/13/87 and renumbered.

5. The trial court did not evaluate or assess the entire affidavit evidence and this has led to a miscarriage of justice.

PARTICULARS

(i) Evaluate or consideration of the entire evidence clearly show that the ingredients to sustain estoppel per rem judicatem are in the affidavit evidence.

(ii) Judgment in suit No. HCK/26/76 of ruling in suit No. HCK/20/81 can sustain estoppel per rem judicatem.

6. The trial court erred in law in holding that the claims in suit No. HCK/13/87 are sustainable “since it is based on breach of the consent judgment and/or non compliance with the consent judgment” and that the judgment of the Court of Appeal supports the claim.

PARTICULARS

(i) The claims in suits No. HCK/26/76, HCK/20/81 and HCK/13/87 are the same, there are no new breaches and/or non compliance with the consent judgment.

(ii) The suit (HCK/13/87) seeks to set aside the consent judgment

(iii) No pleading to support consist violation of consent judgment

(iv) The judgment of Court of Appeal does not support setting aside consent judgment; all that it says is that the plaintiffs/respondents can sue to claim their rights.

7. The trial court erred in law in holding that the parties, subject matter and issues in suit No. HCK/26/76 and HCK/20/81 are not the same when his learned brother (Mr. Justice Omosun) has held that they are the same.

PARTICULARS

The trial court has no jurisdiction to over rule the decision of a Court of concurrent jurisdiction.

8. Further grounds of Appeal shall be filed when the record of appeal is received.
9. Relief sought from the Court of Appeal:

That Ruling of Kwale High Court delivered on the 30th day of May, 1996 in suit No. HCK/13/87 be set aside and an order dismissing or striking out suit No. HCK/13/87 be substituted therefore and any order or orders as the Honourable court may deem fit to make in the circumstances.

5. Persons directly affected by the appeal:

NAME ADDRESS

1. CHIEF PAUL OTUYAH ) RESPONDENTS Umusadege Quarters Utagba-Ogbe,
2. PIUS ANOCHIE ) Ndokwa West Local
3. OKPOR OKWAGEU ) Government Area.
4. CHIEF VINCENT OLIE )APPELLANTS Umusadege Quarters Utagba-Ogbe, Ndokwa West Local
5. CHIEF SILVANUS ODINI EJECHI ) Government Area
6. SYLVESTER OJI
7. NIGERIAN AGIP OIL COMPANY LIMITED )RESPONDENT Enerhe Road Udu, Warri.

NOTE: 1 eave (sic) to appeal against the ruling of Kwale High Court dated the 30th day of May, 1996 was granted by the court on the 13th day of June, 1996.

DAED at Boji Boji Owa, this 13th day of June, 1996.

(SGD) ? ?

J.I. OJEH, ESQ.,

SOLICITOR FOR THE 1ST, 2ND AND 3RD

DEFENDANTS/APPELLANTS WHOSE ADDRESS FOR SERVICE IS

NO.6 UGBAJA STREET,

BOJI BoJI OWA.

When this appeal came up for hearing on the 27th November 2006 J.I. Ojeh counsel for the Appellants referred to the Appellants’ amended Brief of argument which was filed via a motion dated the 2nd May 2003 for an order granting the Appellants/Applicants an extension of time to file their Amended Brief out of time and to deem the said Amended Brief of argument which was exhibited as exhibit C as duly filed and served on the parties the appropriate filing fees having been paid. The said motion was granted on the 9th March 2004. This fact is borne out by our records. Mr. Ojeh adopted and relied on the said Brief and urged this court to allow the appeal and set aside the ruling of the Kwale High Court delivered on the 30th May 1996 in Suit No. HCK/13/87 and that an order dismissing or striking out Suit No. HCK/13/87 be substituted therefore. A. Akpomudje SAN counsel for the 1st 3rd Respondents also referred this court to the 1st – 3rd Respondents Brief of argument dated the l0th May 2004 which was also filed via a motion dated 14th June 2001 for further extension of time to file the Respondents/Applicants’ Brief and to deem the said Respondents Brief as properly filed ad served the appropriate filing fees having been paid. Mr. Akpomudje adopted and relied on the said 1st-3rd Respondents’ Brief of Argument. He urged this court to dismiss the appeal with costs and affirm the ruling of the learned trial Judge dated 30th May 1996.

I shall next deal with the facts of this case as stated in the respective Briefs of argument of the Appellants and the Respondents. According to the Appellants (pages 6-8 of the Appellants amended Brief of argument) the history of this case started with the consent judgment in the consolidated Suit Nos. UCH/43/71. UCH/50/71 and UCH/70/71 dated the 19th October 1972. In April 1975 the Respondents in this appeal (Plaintiff in Suit NO. HCK/13/87) filed Suit No. U CH/26176 at U ghelli High Court against the Appellants and the Nigerian Agip Oil Company and the said Suit was later transferred to Kwale High Court and renumbered HCK/26/76. In the said Suit No. HCK/26/76 the plaintiffs therein – Respondents in this appeal claimed against the Appellants and the 2nd set of Respondents – Agip Oil Company, a number of reliefs including setting aside the consent judgment. Suit No. HCK/26/76 was dismissed by the Kwale High Court and it went on appeal as appeal No. CA/B/148/82 and it was equally dismissed. There was no appeal to the Supreme Court. In 1981 the Respondents in this appeal (Plaintiffs in Suit No. HCK/13/87) again filed Suit No. HCK/20/81 against the Appellants and the second set of Respondents – Agip Oil Company, claiming against them a number of reliefs including setting aside the consent judgment. The parties in the two Suits – HCK/26/76 and HCK/20/81 are the same, the subject matter and the issues for determination in the two Suits are the same according to the Appellants. After pleadings had been exchanged in Suit No. HCK/20/81 the appellants filed a motion praying that the Suit be dismissed or struck out on the ground that the present Respondents in this appeal (Plaintiffs therein) were estopped per rem judicatam from bringing Suit No. HCK/20/81. The learned trial Judge after comparing the parties, the subject matter, the issues for determination and the pleadings in the two suits i.e. Suit Nos. HCK/26/76 and HCK/20/81 ruled that they are the same.

On the 12th April 1983 he struck out Suit No. HCK/20/81 on the ground that he was estopped from entertaining the said Suit. There was no appeal against the order of dismissal or striking out of the said Suit No. HCK/20/81 on the ground of estoppel per rem judicatam. The present Respondents (Plaintiffs in Suit No. HCK/13/87) have again filed for the third time Suit No. HCK/13/87 claiming against the Appellants and the second set of Respondent – Agip Oil Company a number of reliefs including setting aside the consent judgment. After pleadings had been settled in the present Suit No. HCK/13/87 the Appellants compared the same with statements of claim, proceedings and/or judgment in the two previous Suits and came to the conclusion that the parties, the subject matter and the issues for determination in the three suits (HCK/26/76, HCK/20/81 and HCK/13/87 are the same or essentially the same. The Appellants said that the reliefs claimed in Suit No. HCK/26/76 or Suit No. H CK/20/81 cover the reliefs claimed in Suit No. HCK/13/87. The Appellants also contended that a comparison of statements of claim in Suit No. HCK/20/81 and Suit No. HCK/13/87 shows that the statement of claim in Suit No. HCK/20/81 was lifted into Suit No. HCK/13/87 and renumbered. As the parties the subject matter and issues for determination in the present Suit HCK/13/87 are the same as in Suit No. HCK/26/76 or HCK/20/81, the Appellants on the 28th May 1989 filed a motion praying the Kwale High Court to dismiss or strike out Suit No. HCK/13/87 on the ground that the Plaintiffs – Respondents in this appeal were estopped per rem judicatam from bringing Suit No. HCK/13/87. The Motion was dismissed by Kwale High Court on the 30th May 1996. Against the order of dismissal the Appellants have appealed to the Court of Appeal.

The 1st -3rd Respondents have stated in their Brief of argument (pages 4 and 5) that attention should drawn to the fact that the ruling in HCK/20/81 dated 12/4/83 was delivered more than three years before the Court of Appeal judgment in FCA/B/148/82 delivered on 2/12/86 where the Court of Appeal held as follows: “Above everything else, since it has been held that the consent judgment or order – Exhibit 4G is extant and binding upon the parties thereto, that is the Umusadege and the Benekuku people, it follows that the right of both parties now fall to be decided strictly in accordance with the terms and conditions of settlement to which their representatives subscribed their assent as well as their signatures and/or marks in July to October 1972.

In view of all the foregoing and particularly as the consent judgment enures and is binding on both parties, I hold that the learned trial Judge was correct in dismissing the claim of the Plaintiffs as set out under the four heads in their Further Amended Statement of Claim for the avoidance of doubt, the order of dismissal made by the High Court in this matter shall not apply to the rights of the parties to sue under the consent judgment or order. The 1st and 2nd Respondents are entitled to the costs of this appeal assessed at N100.00 to each against the Appellants.

The 3rd Respondent shall bear its costs”. The 1st-3rd Respondents submitted that it is of tremendous importance that when the Ruling was delivered in HCK/20/81 on the 12th April 1983 relying on the judgment of the trial court in HCK/26/76 on 17/7/81, the Judge did not have the benefit of significant legal pronouncements made by the Court of Appeal more than three years later in FCA/B/148/82 while giving judgment in HCK/26/76.

Flowing from the Notice and grounds of Appeal already referred to the Appellants have formulated the following three issues for the determination of the Court of Appeal –

(i) Whether the trial court has jurisdiction to overrule the decision of a court of concurrent or co-ordinate jurisdiction (Ground of Appeal No.7)

(ii) Whether the parties, the subject matter and issues in Suit No. HCK/26/76 and HCK/20/81 (or any of the Suits) are the same as the parties, the subject matter and issues in the present Suit No. HCK/13/87. And if yes, whether the 1st set of Respondents are estopped per rem judicatam from instituting (or bringing) the present Suit No. HCK/13/87 (Grounds of Appeal Nos. 1, 2, 4 and 5).

(iii) Whether exhibit “C” (the Court of Appeal judgment in Appeal No. CA/B/148/82 is an authority to institute the present Suit No. HCK/13/87 when no new cause of action has arisen since the conclusion of Suit No. HCK/26/76, Appeal No. CA/B/148/82 or Suit NO.HCK/20/81 (Grounds of Appeal Nos. 3 and 6) (See pages, 5 and 6 of the Appellants Amended Brief of Argument).

The 1st-3rd Respondents have on their own part formulated the following sole issue for the determination of this court on page 4 of the 1st – 3rd Respondents Brief of Argument – Whether the learned trial Judge was right in Ruling that the doctrine of estoppel per rem judciatam was not applicable in the peculiar circumstances of this case.

I think the sole issue formulated by the 1st-3rd Respondents covers all the grounds in the Notice of Appeal and is sufficient to determine this appeal.

What calls for determination in this appeal as far as I can fathom is whether the parties, issues and reliefs in the earlier decided Suits – HCK/26/76, and HCK/20/81 are the same or substantially the same with those in HCK/13/87. In RAPHAEL EGWUONWU NKWO & 3 ORS V. S.A. UCHENDU & ANOR (1996) 3 NWLR PART 434 page 1, the Supreme Court adjudicating on the conditions for a successful plea of estoppel per rem judicatam outlined the following: –

(a) That the parties or their privies in the previous and the present suits are the same.

(b) That the claim and the issue in both cases are the same.

(c) That the subject matter of litigation in the previous and present suits is identical.

See also the following cases ALASE V. OLORI (1965) NMLR 66; NWANERI V. ORIUWA (1959) SCNLR 316; YOYE V. OLUBODE (1974) 1 All NLR (PART 2) page 118; OKE V. ATOLOYE (No.2) (1986) 1 NWLR PART 15 page 241, DZUNGWE V. GBISHE (1985) 2 NWLR PART 8 page 582, IGE V. FARINDE (1994) 7 NWLR PART 354 page 42. Thus where an issue has been canvassed and adjudicated upon by a Court of competent jurisdiction between two parties, it is binding in a subsequent suit between the same parties or their privies. See FADIORA V. GBADEBO (1978) 3 SC 219; EZENWANI V. ONWORDI (1986) 4 NWLR PART 33 page 27. Parties are therefore not permitted to begin fresh litigations on the same cause of action which had been decided upon by a Court of competent jurisdiction to finality. That the issue must be settled to finality in the previous suit before it can constitute a bar to a subsequent suit is supported by the following cases – ALHAJI HARUNA USMAN V. UMAR GARBA KUSFA (1997) 1 SCNJ 133 OR (1997) 1 NWLR PART 483 page 525; AMBROSE EKENNIA V. BENEDICT NKPAKARA & 7 ORS (1997) 5 SCNJ 70 at page 83, (1997) 5 NWLR PART 504 page 152; There is the need to compare the three Suits in this appeal viz (1) HCK/26/76 the claim of which is contained at pages 82-84 of the Record of Appeal (2) HCK/20/81 the claim of which is contained at pages 84-85 of the Record of Appeal; and (3) HCK/13/87 the Statement of claim of which is contained at pages 85-86 of the Record of Appeal. All three suits HCK/26/76; HC/20/81 and HCK/13/87 were brought in a representative capacity on behalf of the Benekuku family as Plaintiffs although the persons that represented that Community were not always the same. In the same vein Umusadege family and/or quarters are the Defendants in all three Suit Nos. HCK/26/76; HCK/20/81 and HCK/13/87.

Here again the defendants fought all three suits in a representative capacity. Just like the Plaintiffs the characters or persons who represented the defendants were not necessarily the same. The 1st-3rd Respondents have made heavy weather of this on page 10 of their (Respondents) Brief of argument contending that the parties in suit Nos. HCK/26/76 are not the same with parties in Suit No. HCK/20/81 and HCK/13/87.

They contended that there are three sets of defendants in Suit No. HCK/26/76 while in HCK/20/81 and HCK/13/87 there are two sets of defendants. I do not think that reasoning is sound for the very simple reason that in a representative action persons are brought in or substituted as and when the need arises. Although Chief Paul Otuya occupies an ambiguous position, that in itself does not derogate from the fact that the three Suits HCK/26/76; HCK/20/81 and HCK/13/87 were fought in a representative capacity by Benekuku Community as Plaintiff on the one hand and Umusadege family and/or quarter on the other hand. It is thus clear and I so hold that the parties in the three Suits – HCK/26/76, HCK/20/8l and HCK/13/87 are the same. This position is further buttressed by the fact that Nigerian Agip Oil Company Ltd is a defendant in all three Suits. The learned trial Judge was therefore clearly in error in holding that the parties in the three Suits are not the same.

What about the reliefs in the three Suits? Are they the same or are they are different? There is no doubt that the consent judgment in the consolidated Suit Nos. UHC/43/71, UHC/50/71 and UHC/70/71 is the subject matter in all three Suit Nos. HCK/26/76, HCK/20/81 and HCK/13/87 as all the reliefs sought in the three suits are for the setting aside of the consent judgment.

Therefore the reliefs in suit Nos. HCK/26/76, HCK/20/81 and HCK/13/87 are the same. The pleadings in support of the reliefs in Suit Nos. HCK/20/81 and HCK/13/87 are essentially the same. The decisions in Suit Nos. HCK/26/76 and HCK/20/81 are final decisions of courts of competent jurisdiction. Much has been made by the 1st-3rd Respondents of the pronouncement of the Court of Appeal in Appeal No. FCA/B/148/82 that “For the avoidance of doubt the order of dismissal made by the High Court in this matter shall not apply to the rights of the parties to sue under the consent judgment”. I do not think and this should not be interpreted to mean that matters can be relitigated over and over. That certainly was not what the court of appeal meant, having dismissed the Respondent’s claim in HCK/26/76 under the four heads in their further amended statement of claim, which is of the same subject matter with HCK/13/87 the subject matter of the present appeal. Accordingly the sole issue for determination in this appeal as to whether the learned trial Judge was right in ruling that the doctrine of estoppel per rem judicatem was not applicable in the peculiar circumstances of this case must be answered in the negative. That issue is therefore resolved in favour of the Appellants.

The Appeal is therefore allowed and the Ruling of the learned trial Judge in Suit No. HCK/13/87 dated 30th May 1996 is hereby set aside and in its place an order for the dismissal of the said Suit No. HCK/13/87 be and is hereby entered. There shall be N5000 costs in favour of the appellants against the 1st-3rd Respondents.

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Other Citations: (2007)LCN/2246(CA)