Ahmadu Makun & Ors. V. Federal University Of Technology, Minna (2011)

LAWGLOBAL HUB Lead Judgment Report

O. ADEKEYE. J.S.C.

This appeal is against the judgment of the Court of Appeal Abuja Division delivered on the 25th of April 2002. The appeal argued before the Court of Appeal Abuja Division was against the judgment of the Niger State High Court sitting at Minna in Suit No. NSHC/MN/57M93 delivered on the 13th day of August 1993.

The background facts of the case are that the appellants before this court as plaintiffs instituted an action at the Niger State High Court sitting at Minna in a representative capacity for themselves and on behalf of the entire members of Garatu, Gidan Kwano, Lunko, Ekpigi, Kwaida, Legbe and Bakin Pumpo villages that they are entitled to compensation for the acquisition of their entire land for public purpose, that is education, against the defendants now respondents in this appeal-the Federal University of Technology Minna, the Secretary of Land use and Allocation committee, the Director- General Lands, Survey And Town Planning Department in suit No NSHC/MN/57M/93 filed on the 13th day of August 1993.

In their Writ of Summons and Paragraph 50 of their Statement of Claim the plaintiff/appellant claimed as follows –

(a) Declaration that the plaintiffs had at no time given authority to anyone to waive the sum of N13.29 Million compensation for acquisition of their land and landed properties by the 1st Defendant and that they are entitled to the balance of N13.29 million, the meeting of 7/8/84 being of no effect.

(b) An order on the 1st defendant to pay the sum of N13.29m to the plaintiffs.

(c) An order referring the determination of payable compensation to Land Use and Allocation Committee (Niger State) by virtue of sections 30 and 47(2) Land Use Act.

The defendants/Respondents filed their defence, while the 1st defendant/respondent in addition filed a Notice of Motion praying the court for the following orders –

(a) Setting down for hearing at once the preliminary objection raised in the Statement of Defence in this suit particularly paragraphs 8 and 9 thereof

(b) Dismissing the suit on grounds of law viz –

(a) By way of preliminary objection that 1st defendant shall contend that this legal action is unsustainable on grounds of Res judicata

(b)Limitation of Action

(c)Abuse of court process

The plaintiffs/appellants resorted to legal action as the various communities/villages who owned, inhabited and cultivated the wide expanse of land acquired by the Niger State Government for the Federal university of Technology Minna. In the normal course of events they were the people entitled to be paid compensation for their land and the economic crops thereon. The appellants engaged the services of Messrs Yisa and A. H. Gimba of Summit Chambers Minna as their solicitors to negotiate with the authorities to facilitate the payments of the compensation. The appellants and Summit Chambers executed an agreement dated 23/1/84 to this effect. The appellants also appointed an Estate Valuer, Mr. Okolo of Okolo & Co. to determine the value of the compensation they were entitled to be paid by the authorities, which the Estate Valuer assessed as N19.76 million. The Federal University of Technology Minna through their Estate Valuer returned a value of N18.89 million. At a meeting of the Body set up on the payment of compensation for the University held on the 7th of August 1984, with Mr. Okolo in attendance, and Mr. A. H Gimba of Summit Chambers, it was argued that the total amount to be released by the acquiring authority would be N6.million – that is N5.6million for compensation (fees inclusive) and N.4 million for resettlement exercise vide Exh. FUT B. Summit Chambers claimed that they waived the sum of N13.29m and accepted only N5.6 for the appellants in the exercise of the power of attorney supposedly executed between the solicitors, and the appellants. This sum of N6 million was paid to the appellants through their solicitors, Summit Chambers. The appellants were still living with the expectation that the balance of N13.29 million would be released to them in the near future until the picture became clear that their solicitors had waived the balance of N13.29 rnillion at a meeting held on the 7th of August 1984.

The Respondents predicated their preliminary objection on order 23 Rules (2) and (3) of the High Court Civil procedure Rules Revised laws of Niger State 1989 and Section 83(2) High Court Law Cap 53 Revised Law of Niger State 1989. The appellants had however prior to this suit No NSHC/MN/57M/93 pursued two similar suits before two different judges of Niger State High court in suits Nos. NSHC/MN/47/89 and NSHC/MN/160M/92. The two suits were variously dismissed by the two courts.

The objections were duly argued by counsel to the parties. In a considered ruling of the trial court delivered on the 13th of May 1992, the learned trial judge upheld the submission that the doctrine of res judicata applied to the substantive suit and furthermore that although the court had jurisdiction to the hear the prayer (a) of paragraph 9 in the Statement of Claim as to whether or not Summit Chambers had authority to waive N13.29 million on behalf of the plaintiffs, the court does not have jurisdiction to determine prayers (b) and (c) of paragraph 9. The learned trial judge subsequently declined jurisdiction to hear the entire suit.

The plaintiffs/appellants aggrieved by the decision of the trial court appealed against it to the court of Appeal Abuja and filed three grounds of appeal which without their particulars read as follows –

1) The learned trial judge erred in law when he held that Res judicata applied (soc) in this case.

2) The learned trial judge erred in law when he held that sections 30 and 47 (2) of the Land Use Act ousted the jurisdiction of the High court as to the reliefs sought by the appellants.

(3) The learned trial judge misdirected himself by relying on the cases of Akinlare v. Akinola (1994) 4 SCNJ 30 at Pg.43 and Agbu v. odofu (1992) 3SCNJ 161 at Pg. 168 to decline jurisdiction when these cases are not on all fours with the matter at hand.

The Court of Appeal Abuja heard the appeal in their judgment held that “However, I have already indicated that the High court of Niger state in suit No NSHC/47/89 have previously considered the issue of the validity of the documents which the appellants conferred authority to summit chambers to deal with the issue of the compensation received by them and has ruled in favour of the validity thereof which has not been set aside or overruled. In consequence that decision stands and must be treated as valid -see page 45 of the Record of Proceedings”

Therefore the finding by the learned trial court in the case on appeal that it had competence to hear prayer (a) as to whether or not summit chambers have authority to waive N13.29m on behalf of the plaintiff must have been made per incuriam since the court had given due respect to all other earlier findings and decisions of the two earlier courts of which it was aware and treated them as res-judicata.

In the circumstance I confirm my earlier decision in this regard on the issue that the doctrine of Res judicata also applied to the issue whether or not summit chambers had valid authority to deal with the issue of compensation for land on behalf of the appellants. Having decided all the three issues in this appeal against the appellant I dismiss the appeal.”

The plaintiffs/appellants were dissatisfied with the foregoing decision, and this prompt a further appeal to this court.

Parties exchanged briefs, when the appeal was heard on the 5th of April, 2011, the appellants adopted and relied on their briefs filed on 14/5/03 in which they distilled two issues for determination from the two grounds of appeal filed as follows –

(1) Whether the issue of the competence of the High Court and of the land use and allocation Committee to determine the present claims of the plaintiffs have been adjudicated upon in the two earlier suits and

(2) Whether the lower court was right when it held that the trial court’s decision that it had jurisdiction to determine the 1st leg of plaintiff s claim was made per incuriam.

The 1st respondent adopted and relied on the 1st Respondents brief filed on 18/12/03 wherein two issues were formulated for determination, which are –

(1) whether the competence of the High court and the Land use And Allocation Committee to determine the extent of the powers of summit Chambers in relation to compensation paid had been adjudicated in two previous suits numbers NSHC/MN/47/89 and NSHC/MN/160M/92.

(2)Whether the lower court was right when it held that the decision of the trial court that it had jurisdiction to determine the first leg of the plaintiffs claim was made per incuriam.

The 2nd – 3rd Respondents adopted and relied on their joint brief deem filed on 2/12/2010 where they settled two issues for determination as follows –

(1) Whether the Court of Appeal was right in holding that the judgment of Dalhatu Adamu J. in suit No NSHC/47/89 and Musa Dattijo Mohammed J. in suit NSHC/160M/92 constitutes res judicata in this case.

(2) whether the court of Appeal was right in holding that the trial court’s decision that it had jurisdiction to determine whether the appellants had at any time given authority to any one to waive the sum of N13.29 compensation for acquisition of the appellants’ land and landed properties by the 1st respondent and that they are entitled to the balance of N13.29 million, the meeting of 7/08/84 being of no effect, was made per incuriam.

since all the parties raised identical issues for the determination of this appeal, I intend to be guided by the issues formulated by the appellants.

Issue One

Whether the issue of the competence of the High court and of the Land use and Allocation committee to determine the present claims of the plaintiffs have been adjudicated upon in the two earlier suits. The appellant through their learned counsel Ibrahim Isiyaku – argued and submitted that the appellants commenced suit No NSHC/47/89 claiming the balance of their compensation a sum of N13.29, which the respondents disputed and pleaded that the amount claimed had been waived by the solicitors acting for the plaintiffs. The respondents also invoked sections 30 and 47 (2) of the Land Use Act to oust the jurisdiction of the court in matters relating to compensation and to vest such power only in the land use allocation Committee. The court declined jurisdiction and made an order for reference to the Land Use And Allocation committee. The appellants wrote to this committee which refused to sit as a result of which the appellant filed another suit No NHSC/160/92 for an order of mandamus to compel the committee to sit. The court declined to grant this order of mandamus because the issues made out from the affidavit evidence filed by both parties did not relate to the reliefs sought.

This prompted the appellants to commence another suit No NSHC/MN/57/93 before the High court. The learned trial judge found that – what had not been included in the suits before Justice Dalhatu and Justice Dattijo Mohammed is the leg of the claim before this court i.e whether summit Chambers have the authority of the plaintiff/respondents to waive N13.29 million. The learned trial judge held that he had jurisdiction to determine the 1st leg i.e the claim in para 9(a) of the Statement of Claim but that he was incompetent to determine either of the other alternative reliefs on the grounds that the latter were caught by Res judicata. The Court of Appeal held that the suit was caught by Res judicata and dismissed the appeal. The learned counsel maintained that the two earlier suits were not heard on the merit. None of the suits determined the competence of the High Court to look into whether a solicitor had been vested with power to waive his client’s compensation. The learned counsel also submitted on this issue that where a trial court did not give any decision one way or the other on the claim before it even if directly in dispute the case will not have the effect of estoppel. The counsel referred to cases in support of this issue Ezeokonkwo v. Okeke (2002)11 NWLR Pt.777 Pg.1, Ezenwa v. Kareem (1990) 21 NSCC Pt.2 Pg.284, Nwokedi v. Okugo (2002) 16 NWLR Pt. 194 Pg.441. The learned counsel for the 1st respondent submitted that if there had not been a waiver of N13.29 million the appellant would not have been in court to claim the balance of that sum. The waiver of N13.29 million formed the basis of the cause of action in the two previous suit particularly the reliefs sought. In all the cases filed by the appellant before the High Court of Niger State, suit Nos NSHC/MN/57M/93, NSHC/MN/47/89 AND NSHC/MN/160M/92 the facts are the same. All the three judges in their respective decisions alluded to the fact of compensation of N13.29 million, the appointment, the extent of authority of Summit Chambers and waiver thereof. The judges have rightly invoked section 83 (2) High court Law Cap 53 Revised Laws of Niger State 1989, and order 23(2) and (3) of the High Court Civil Procedure Rules Cap 54 1989 Revised Laws of Niger State to decide that suit number NSHC/MN/57/93 i.e caught by res judicata. This court is urged to affirm the position. The orders of the two learned judges are final by virtue of section 318 of the 1999 constitution.

The learned counsel for the 2nd and 3rd respondents in his submission on this issue made reference to numerous decisions of this court for the definition and the conditions required to sustain or plea of estoppel per rem judicatam. He went through all the five conditions in the light of the facts of the cases in NSHC/47189 before Dalhatu Adamu J, and NSHC/160M/92 Mohammed J. to conclude that the court had jurisdiction to entertain the suits, while the parties in the suits are the same with the parties in the present suit which resulted to this appeal. The 1st respondent held also that the subject-matter and issues joined by the parties had been adjudicated upon by courts of competent jurisdiction. The decision of the courts in suits No NSHC/47/89 and NSHC/160M/92 are final decisions, even where a court declined jurisdiction. Where such decisions were never appealed against they amount to final decision for the purpose of Res judicata. The same Court of Appeal held that the two suits constitute res judicata. The 2nd and 3rd respondents are now urging this court to hold that the concurrent findings of fact of the two lower courts, that the judgments of Dalhatu Adamu J. in suit No NSHC/47/89 and Musa Dattijo Mohammed J. in SuitNo NSHC/160M/92 constitutes res judicata in this case and consequently dismiss the appeal. Cases cited are:

Igwego v. Ezeugo (1992) 6 NWLR pt.249 pg. 561,

Osunrinde v. Ajamogun (1999) 6 NWLR pt. 246 pg. 156,

Udeze v. Chidebe (1990) NWLR pt. 125 pg.141,

Okukuje v. Akwido-(2001) 3 NWLR pt.700 pg.261,

Ntuks v. NPA (2007) 13 NWLR (pt.1051) pg.292,

Ezenwa v. Kareem (1990) 3 NWLR pt.138,

Agbogunlari v. Depo (2008) 3 NWLR pt. 11074) pg.217,

Balogun v. Ode (2007) 4 NWLR pt.1023 Pg.1,

Abubakar v. B. O. & A. P. Ltd (2007) 18 NWLR pt. 1066 pg.319,

Ojo v. A. G. Oyo State (2008) 15 NWLR pt.1110 pg. 309.

The central issue and bone of contention is a claim for the balance of a sum of N13.29 million payable to the appellants as compensation for the acquisition of their land by the 1st respondent. The amount became due following a waiver by their counsel Summit Chambers in the meeting where the decision as to the amount due to appellants as compensation was taken on the 7th of august 1984. I have gleaned through the cause of action in each of the claim before the three judges of the Niger State High Court of Justice in suit Nos NSHC/MN/47/89, NSHC/MN/160M/92 and NSHC/MN/57/M/93, they all relate to the amount of compensation payable to the appellants as villagers eking out their livelihood on the land acquired by the Niger State Government and other relevant authorities as the site for the Federal University of Technology Minna. That may be seen as the fundamental and underlying issue but interwoven and inseparable for the consideration of that main issue are other two important factors – The extent of the authority given to the counsel they retained for the purpose of this acquisition as to-

(a) The amount of compensation collected by their counsel Summit chambers

(b) The amount waived pursuant to the authority granted thereof.

The facts and figures required to answer the foregoing issues are the same. They are undoubtedly the aggregate of facts which culminate into the appellant’s cause of action. In paragraphs 3 and 4 of the Statement of Claim at page 12 of the Record of Appeal the appellants pleaded as follows –

Paragraph 3

“The plaintiffs by an agreement Messers Summit Chambers to cover the amount of the valuation of their landed properties put by the defendant’s valuer, Messers Alagbe and Partners at N18.89.

Paragraph 4

4(a) Specifically by an agreement dated 23/1/84 accredited representatives of the plaintiff (Abubakar Ahihu Bosso, KesdiriS/Homa Bossa, Doma Makama Ahmadu Makun, Dan Mallam Lunko) appointed A. M. Yisa and A. H. Gimba both of the Summit Chambers to represent them in matters concerning the recovery of the said compensation.

(b)To achieve the said recovery, plaintiffs conferred on the two solicitors power to take necessary steps including action in a court of law to recover the compensation.

(c) About N5.6m was recovered and paid to plaintiffs who after waiting in vain for the balance of N13.29m were then informed that they had waived same at a meeting on 718/84. Plaintiffs then instituted suit No NSHC/4/91 against 1st defendant and Honourable Commissioner, Ministry of Land and Survey.

Paragraph 6 plaintiffs shall contend that –

(a) they at no time waived N13.29m either expressly or constructively

(b) they empowered solicitors by an agreement signed by five of them to recover compensation only.

(c) they did not empower anyone or indeed any meeting to, on their behalf waive or compromise any claim entitled to them and compensation by virtue of the said agreement or the purported Power of Attorney

(d)The 1st defendant’s valuer had valued compensation due to them at about N18.89 while their own valued same at about N19.76m and at worse they are entitled to N18.89 valued by the 1st defendant’s own valuer

(e) No one informed them of nor were they invited to (and did not attend) the meeting of 7/8/84 which discussed and took decision on their constitutional right.

(f) It was not within the province of anybody or group of persons outside the land use and allocation committee to decide on payable compensation by waiving plaintiffs right for whatever reason or interest”.

The facts of the case of the appellant’s are that –

(1) Five representative of the plaintiffs signed an Agreement appointing the solicitors to recover the amount of compensation payable to them

(2) The agreement empowered the solicitors to recover the said amount vide all necessary steps including court action.

(3) That the valuers appointed by the university made a valuation of N18.89m as the amount payable to the plaintiffs as compensation

(4) That out of this amount the solicitors recovered and paid to the plaintiffs the sum of N5.6m to leave a balance of N13.29m.

(5) That having waited in vain for the said balance, the plaintiffs made enquires and were informed that the solicitors had, at a meeting held on 7/08/84 waived the balance on behalf of the plaintiffs.

The appellants decided to enforce their right by civil action.

In the suit No NSHC/MN/47/87 the appellants claimed reliefs as follows –

N13.29m as balance of compensation

Interest on (i) at 30% per annum. On compensation sum for 7 years -N27.93m

General Damages N.03 million

Total ……N41.03 million

In the course of the trial, the respondents raised a preliminary objection to the effect that –

(a) The court cannot competently entertain the suit in view of sections 28, 29, 30 and 47 of the Land Use Act which when read together show that this court lacks jurisdiction to enquire into the amount of compensation paid on land compulsorily acquired by the defendants.

(b) That the suit is statute barred in view of section 7 of the Limitation Decree 1966. The learned trial judge raised four issues which were exhaustively considered. They are –

(a) Whether or not there was a waiver on the part of the respondents

(b) Whether or not this court lacks jurisdiction to entertain the suit i.e the substantive suit.

(c) Whether or not this suit is statute barred and

(d)Whether or not the 2nd applicant can avail himself of the provisions of the public officers’ protection law.

The court considered the averments of the appellants in paragraphs 4, 6, and of the Statement of Claim. The leamed trial judge made findings to the effect that –

“It should be pointed out that the respondents were represented at the meeting by both their valuer Mr. Peter H. C. Okolo who represented the firm of Okolo, Okolo & Co as well as Mallam A. H. Gimba who represented Summit Chambers who acted as the solicitor for the respondents. The denial on behalf of the respondents in the counter-affidavit to the effect that they (the respondents) did not authorize anybody to represent them at the meeting in question have been effectively and sufficiently controverted in the reply to the counter affidavit in which the copy of the power of attorney given by the respondents to the said counsel as well as the certificate and stamp of the Deeds register and annexed. The denial is therefore discountenanced. It is hereby held that Summit Chambers were legally appointed by the respondents and they represented the later at the meeting of 7/8/84.”

In the suit No NSHC/47/89 the trial court considered and determined the issue of the authority of summit chambers to represent and act on behalf of the appellants in respect of the compensation at the meeting of 7/8/84. The court declined jurisdiction on the ground that sections 30 and 47 (2) of the land Use Act ousted the jurisdiction of the High Court in matters relating to compensation and vested same only in the Land use and Allocation Committee.

In the suit NSHC/MN/160M/92 the appellants were praying the court for an order (a) Of mandamus compelling the Land use allocation Committee to determine the extent of compensation payable to the appellants.

During the hearing of the application the learned trial judge identified the issues made out for determination from the facts before him in the affidavit evidence to be

(1) whether the applicants had donated power of attorney to summit chambers in particular to deal the way they did regarding to the compensation payable to the applicants.

(2) Whether it was in exercise of such power that Summit Chambers negotiated and collected for and on behalf of the applicants the sum of N5.6m only as compensation.

Before declining jurisdiction in the application for reason that the affidavit evidence filed by both

parties did not relate to the reliefs sought, the learned trial judge held in respect of the two foregoing issues as follows –

“These issues, to mind (sic) cannot form the basis of the kind of public duty assigned the Land Use and Allocation Committee and the performance of which it can be compelled to carry out the dispute disclosed by the evidence before me squarely relates to the extent of authority given to Messrs Summit chambers as attorneys to the applicants in negotiation pertaining to compensation accruable to applicants from the Federal university of Technology, Minna, for Land and property by the latter”

In view of the fact that the trial court in suit No NSHC/160m/92 ruled that he could not determine the extent of the solicitors authority, the plaintiffs commenced the suit No.NSHC/MN/57M/93 before the High Court and claimed-

A declaration that plaintiffs did not authorise any one to waive the sum of N13.29.

An order either compelling the university to pay the said balance or referring the determination of same to the Land Use and allocation committee.

The leaned trial judge in this suit held as follows –

“I was privileged to go through Exhibit A and C. the rulings of Justice Dalhatu and Justice Dattijo. I have discovered that ruling in those two cases namely whether or not this court is competent to determine the issue of compensation to be awarded by Land Use and allocation committee as well as compelling them to sit by means of order of mandamus to determine the compensation payable these are the present claims as contained in paragraph 9(b) and 9(c) of the Statement of Claims. Vide page 98 lines 4 – 12 of the Record of Appeal. The learned trial judge further contended at page 99 hereafter 5 – 13 of the Record of appeal that –

“A clear look at Exhibit A clearly shows that the parties are the same subject matter are the same, with the present suit now before me and the ruling that he had no-jurisdiction to handle the case before him is a valid and subsisting judgment unless it is set aside by the higher court to the best of my knowledge, this has not been done so the order of justice Dalhatu not having jurisdiction is a valid order of which I am not competent to reverse.”

The learned trial judge finally held that “I wish to point out that this court cannot assume jurisdiction on the 1st leg of the prayers and abandon the 2nd and 3rd prayers as contained in paragraphs 9(b) and (c) of the state of claim. I cannot assume jurisdiction in part.

The Court of Appeal in the findings of fact held that –

(a) “I therefore find that the parties in all three cases are the same.”

(b) In the case under appeal, it is apparent that the issues posed for the determination of the court were again.

(i) Issues of jurisdiction for compensation

(ii) For reference to the Land use and allocation committee as well as the validity or competence of the authority given to solicitors-submit chambers in respect of the instruction on the claim for compensation. I also find that these too, have been effectively decided in the two suits.

(iii) The decision of the two courts in respect of the two earlier suit which have not been appealed against to a higher court or been set aside by either of those two courts must be considered final.”

Vide page 224 lines 33 – 36, and page 225 lines 1 – 2 and lines 7 – 9 of the Record.

The poser now is whether the Court of Appeal was right in holding that the judgment in suit No NSHC/47/89 and in suit NSHC/160M/92 constitute res judicata. The question cannot be answered without a proper insight into the plea of estoppel per Rem judicatam or estoppel by Record. Estoppel per rem judicatam or estopel of record arises where an issue of fact has been judicially determined in a final manner between the parties or their privies by a court or tribunal having jurisdiction in the matter and the same issue comes directly in question in subsequent proceedings between the parties or their privies. It effectively precludes a party to an action, his agents and privies from disputing as against the other party in any subsequent suit, matters which had been adjudicated upon previously by a court of competent jurisdiction between him and his adversary involving the same issues.

Adone v. Ikebudu (2001) 14 NWLR Pt.733 Pg.385.

Ukaegbu v. Ugoji (1991) 6 NWLR Pt.196 Pg.127,

Ezeudu v. Obiagwu (1986) 2 NWLR Pt.21 Pg.208.

Osunrinde v. Ajamogun-(1992) 6 NWLR Pt.246 Pg.156.

Iga v. Amakiri (1976) 11 SC 1,

Udeze v. Chidebe (1990) 1 NWLR 3 (Pt.125) 141,

Lawal v. Dawodu (1972) 1 ALL NLR Pt.2 Pg.270.

Ezewani v. Onwordi (1986) 4 NWLR Pt.33 Pg.27,

Fadiora v. Gbadebo (1978) 3 SC 219.

There are two categories of estoppel per rem judicatam. They are –

(1)Cause of Action Estoppel -This precludes a party to an action from asserting or denying as against the other party, the existence of a particular cause of action-the non-existence or existence of which has been determined by a court of competent jurisdiction in a previous litigation between the same parties. This is because it is against the rule of public policy for anyone to be vexed twice on the same ground and for one and the same cause of action and or the same issues. It is also an application of the rule of public policy that there should be an end to litigation. In appropriate case, the parties affected are estopped from bringing a fresh action before any court on the same cause and on the same issues already decided or pronounced upon by a court of competent jurisdiction in a previous action.

(2) Issue Estoppel – The rule being that once one or more issues have been raised in a cause of action and distinctly determined or resolved between the same parties in a court of competent jurisdiction, then as a general rule, neither party nor his agent or privy is allowed to relitigate that or those decided issues all over again in another action between the same parties or their privies on the same issues.

Achemba v. Odiese (1990) 1 NWLR Pt.125 Pg.165

Omokhafe v. Ezekhome (1993) 8 NWLR Pt. 309 Pg.58,

Balogun v. Adejobi (1995) 2 NWLR Pt.75 Pg.131,

Lawal v. Dawodu (1972) 1 ALL NLR Pt.2 Pg.270,

Ezewani v. Onwurdi (1986) 4 NWLR Pt.33 Pg.27,

Adone v. Ikebudu (2001) 14 NWLR Pt.733 Pg.385

For a plea of estoppel per rem judicatam to succeed, the party relying on it must following requirements or pre- conditions namely –

(a) That the parties or their privies are the same in both the previous and establish the the present

proceedings

(b) That the claim or issues in dispute in both actions are the same.

(c) That the res or the subject matter of the litigation in the two cases is the same.

(d) That the decision relied upon to support the plea of estoppel per rem judicatam is valid, subsisting and final.

(e) That the court that gave the previous decision relied upon to sustain the plea is a court of competent jurisdiction.

Unless all the above constituent elements or requirements of the doctrine are fully established the plea of estoppel per rem judicatam cannot be sustained. Adigun v. Governor of Osun State (1995)30 NWLR Pt. 385 Pg. 513, Oke v. Atoloye (1985) ALL NLR (pt.9) pg.578,

Yoye v Olabode (1974) ALL NLR (pt.2) pg.118,

Alase v. Olori-Ilu (1965) NMLR Pg.66,

Fadiora v. Gbadebo (1978) 3 SC 219,

Odjewedje v. Echanokpe (1987) 1 NWLR Pt.52 Pg. 633.

Nwaneri v. Oruiwa (1959) SC NLR Pg.316,

Dokubo v. Omoni (1999) 8 NWLR Pt. 616 Pg.647,

Nkanu v. Onum (1977)5 SC 1 .

Udo v. Obot (1989) 2 NWLR Pt. 95 Pg.59

In determining whether the issues, the subject matter of the two actions and the parties are the same, the court is permitted to study the pleadings, the proceedings and the judgment in the previous action. The court may also examine other relevant facts to discover what was in issue in the previous case. It is entirely a question of fact whether the parties and their privies, the facts in the issue and the subject matter of the claim are the same in both the previous and the present suits. The plea of res judicata applies except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment but to every point which properly belonged to the subject-matter of litigation and which the parties exercising reasonable diligence might have brought forward. Standard Bank of Nigeria Ltd v. Ikomi (1972) 1 SC Pg. 164.

Ijale v. A. G. Leventis & Co. Ltd (1961) 2 SCNLR Pg. 386.

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 between the same parties.

Looking at the facts of the case in this appeal from the foregoing, and applying the foregoing yardsticks- there is no doubt about it that the parties in the previous suits NSHC/47/89 and NSHC/160M/92 are same with the parties in this present suit, and that both courts had jurisdiction and are thereby competent to hear the suits.

The issues and subject -matter in the two previous suits and in this present suit are the same the central issue in the suits is the amount of compensation payable to the appellants and flowing from that major issue are the extent of the authority granted to their solicitors with regards to the amount of compensation collected on behalf of appellants and finally whether the authority they had permitted them to exercise the right to waive the compensation.

The issues were examined in the two earlier suits, while it was the subject of litigation in this present suit. Though the decisions in suit Nos NSHC/47/89 and NSHC/160M/92 are summary judgments being that the courts declined jurisdiction, and no appeals were lodged against them, they are equally final judgment for the purpose of res judicata. Abubakar v. B. O. & A. P. Ltd (2007) 18 NWLR Pt. 1066 Pg. 319 at Pg.369, Agbogunlari v. Depo (2008) 3 NWLR Pt. 107 4 Pg.217, Balogun v. ode (2007) 4 NWLR Pt. 1023 Pg. 1.

In the case of Ajiofor v. Onyekwe & ors (1972) 1 ALL NLR (pt.2) pg 527. It was held that “an order of dismissal operates as an estoppel per rem judicatam and Ipso facto bars the losing party for all times re-litigating the same subject matter.”

I agree with the respondents that the judgments of the courts in suit No.NSHC/47/89 and NSHC/160M/92 constitutes res judicata in this case.

We now have before this court in this appeal concurrent finding of facts by two lower courts, which are not perverse, where there is no miscarriage of justice or the violation of some principles of law or procedure. The decisions based on them remain unimpeachable, as we have no reason to interfere with them. I resolve this issue in favour of the respondents.

Issue Two

Whether the lower court was right when it held that the trial court’s decision that it had jurisdiction to determine the 1st leg of plaintiff’s claim was made per-incuriam.

The appellants on this issue referred to the judgment of the lower court where it held that the trial court’s decision that it had jurisdiction to hear the prayer (a) as to whether or not summit Chambers have authority to waive N13.29m on behalf of the plaintiffs must have been made per incuriam- which is Latin for “through inadvertence” The lower court predicated the findings on the observation of the trial court on the agreement between the appellants and their solicitor-the summit chambers and ruled on its validity. The appellants submitted that in the preliminary objection, the respondents did not raise the issue of validity of the agreement or refer to the purported power of attorney. They did not from part of the reliefs sought before the trial court. The lower court did not at any time consider or decide on the issue of the validity of the instruments. The trial court was correct in its findings that the 1st leg of the plaintiffs was not previously decided upon, and its decision that it had jurisdiction to determine same as proper and was not made “through inadvertence’” As there was no cross-appeal against this finding the Court of Appeal was wrong to have taken the point. The appellants concluded that the decision of the trial court that it had jurisdiction on the 1st leg of the claim was not made per incuriam.

The 1st respondents restated that aspect of the decision of the trial court where it held that “I wish to point out that this court cannot assume jurisdiction in the 1st leg of the prayers and abandon the 2nd and 3rd prayers as contained in paragraphs 9(b) and 9(c) of The Statement of Claim. I cannot assume jurisdiction in part and then decline jurisdiction in part. When the court considers the totality of the claim and discloses that he has jurisdiction, it is his duty to assume jurisdiction but where he has jurisdiction in part only, he should decline it. With all these that have been stated I am entitled to hold and I so hold that I have no jurisdiction to hear this.”

The respondent explained that a situation where a court confidently states that it has jurisdiction to hear a particular prayer but lacks jurisdiction to hear and determine other reliefs in the same suit or where a court holds that it has jurisdiction to hear and determine a certain prayer in a suit and lacks jurisdiction to hear the entire suit speaks of a decision that is reached per incuriam. The decision of the High Court as rightly affirmed by the lower court was made per incuriam even though the court seems to have adverted its mind to the appropriate authorities. The 1st respondent referred to the case of Adisa v Oyinwola (2000) 6 SC (pt. 11) pg.47 at page 78. The 2nd – 3rd respondents submitted that the bone of contention is whether the appellant had at any time given authority to anyone to waive the sum of N13.29m compensation for acquisition of the appellants land and landed properties by the 1st respondent and that they are still entitled to the balance of N13.29m. The meeting of 7/8/84 being of no effect. The learned trial judge in the Suit NSHC/47/89 made and took final decision on the issue. The subject matter of Suit No NSHC/47/89 is claim or compensation for the compulsory acquired land and the landed properties belonging to appellants by the respondents and this is also the subject matter in Suit No NSHC/57M/93. The findings and final decision of court in Suit No NSHC/47M/89 is that of a court of competent jurisdiction in a matter that the parties are the same with the parties in suit No NSHC/57M/93. The decision in suit No NSHC/47M/89 was never challenged on appeal. The matter raised in Suit No NSHC/47M/89 is now res judicata. The appellants cannot relitigate that same issue again by bringing a fresh action by way of NSHC/57M/93. If the learned trial judge had adverted his mind to the findings and decision of the court in Suits No.NSHC/47M/89 and the principle of law, he would not have ruled that he has jurisdiction in the matter. This Court of Appeal was therefore right in their decision to hold that the decision of trial court that it had jurisdiction on the 1st leg of the claim was made per incuriam, while this court is urged to dismiss this appeal.

The proper approach in considering this issue is to first and foremost define when a case is said to be decided per incuriam. Sequel to the definition in decided authorities, per incuriam is a Latin phrase which generally means “through inadvertence.” In the case of Adisa v. Oyinwola (200) 6 SC.Pt.11 page 47 at page 48 the supreme court in their exposition of the law held that –

“the principle appears to be that a decision can only be said to be per incuriam if it is possible to point to a step in the reasoning and show that it was faulty because of a failure to mention a statute, a rule having statutory effect or an authoritative case which might have made the decision different from what it was.”

In the case of Buhari v. INEC (2008) 19 NWLR pt.1120 pg.246 at page 372, the Supreme Court held that per incuriam in law means the judge giving a judgment in ignorance or forgetfulness of an enabling statues or some binding authority on the court. A case decided per incuriam includes a situation where the court forgot to take into consideration a previous decision which the doctrine of stare decisis applies. Such decisions given per incuriam usually contradict a settled principle of law by a superior court. It is also a situation where a statute or rule having statutory effect or other binding authority, which would have affected the decision, had not been brought to the attention of the court. Rossek v. ACB Ltd (1993) 8 NWLR pt.312 pg.382, African Newspaper v. Federal Republic of Nigeria (1985) 2 NWLR pt. 6 pg. 137, Cross on precedent in English Law (1961 at page 139.

In the circumstance of this case, the decision of the trial court in suit No NSHC/MN/57M/93 inter alia was that (on the issue of competence of this court to hold that the plaintiffs are entitled to be compensated the sum of N13.29m and to direct the Land use and Allocation Committee to sit, I am of the view that I am not competent to hold that the plaintiffs are entitled to compensation of N13.29m because if I venture to give that order then I am usurping not the powers of the Land use and Allocation committee who in view section 30 and 47(2) of the land Use Act 1978 which have ousted the jurisdiction of this court determining such issue. The only competent body to determine what to pay and what the plaintiff are entitled to is to be determined by this body and not the High Court. From the foregoing reasons therefore, I am not competent to go on with the suit now before me since I have no jurisdiction to handle the 2nd and 3rd prayers as contained in paragraph 9(b) and (c) of the statement of Claim. But I have jurisdiction to hear the Ist prayer namely whether or not Summit have authority to waive N13.29m on behalf of the plaintiffs or not.

I wish to point out that this court cannot assume jurisdiction on the 1st leg of the prayers and abandon the 2nd and 3rd prayers as contained in paragraphs ((b) and 9(c) of the Statement of Claim. I cannot assume jurisdiction in part and then decline jurisdiction in part. when the court considers the totality of the claim and discloses that it has jurisdiction, it is its duty to assume jurisdiction but where he has jurisdiction in part only, he should decline it.

See Akintolare v. Akinola (1994) 4 SCNJ pg. 30 at 43,

Agbu v. Onofin (1992) 3 SCNJ.

With all these that have been stated I am entitled to hold and I so hold that I have no jurisdiction to hear this case. Objections raised by the applicant /defendant counsel are hereby sustained”

In gleaning through the Record of Appeal, the cause of action and the issues considered in the suit NSHC/MN/47/89, and the order sought and issues raised in suit No NSHC/MN/160M/92 are predicated on

(a) The amount of compensation payable to the appellants on the compulsory acquisition of their land by the 1st respondent.

(b) The extent of authority given to their counsel, summit Chambers with regards to the claim of the amount of compensation.

(c) The amount waived pursuant to the authority.

All the issues were considered, and brought to finality in the two previous judgments though the two courts declined jurisdiction. It is a foregone conclusion in law that based on the doctrine of res judicata, where court of competent jurisdiction has settled, by a final decision the matters in dispute between the parties none of the parties or his privies may re-litigate that issue again by bringing a fresh action. The estoppel created is said to be by record inter parties. The rule of estoppel per rem judicatam requires that where a final decision is given by a court of competent jurisdiction, the parties thereto cannot be heard to contradict that decision in any subsequent litigation between them respecting the same subject-matter. As a plea, the decision operates as a bar to a subsequent litigation and as evidence; it is conclusive between the parties to it. The plea applies where a court has given a final decision on the matter like deciding that it has no jurisdiction to entertain a matter and there is no appeal against it. Against this background are facts like –

(1) The decisions contained in the rulings in Suits No NSHC/47/89 and NSHC/160M/92 before the Niger State High Courts were decision of courts of competent jurisdiction.

(2) The parties in all the three suits are the same-NSHC/47/89, NSHC/160M/92 and NSHC/57M/93.

(3) The court in Suit No NSHC/47/89 made a finding on the same issue of waiver of compensation and the extent of the authority given to Summit Chambers counsel of the appellants to take such step to accept N5.6 million and N.4 million instead of N18.89 million.

(4) The subject matter and issues in the suit Nos. NSHC/47/89, NSHC/160M/92 and NSHC/57M/93 are same.

(5) The decisions in the two previous suits were all final decisions and the claims of the appellants in the said suits were dismissed.

(6) In the circumstance, the decision in suits Nos. NSHC/47/89 and NSHC/160M/92 constitute estoppel per rem judicatam to the claims in suit No NSHC/57M/93.

Obviously if the learned trial judge in suit No NSHC/57M/93 had adverted his mind to the principles of law as regards res judicata, he would never have come to the conclusion that he has jurisdiction. The judgment of the trial court is a bundle of contradiction in terms, while the case was decided per incuriam. The issue is resolved in favour of the respondents.

I cannot allow this case to be disposed off without ventilating my feeling in respect of the conduct of the affairs of the appellants by their counsel, the summit Chambers. The appellants by an agreement executed between both parties on the 23rd of January 1984, appointed them as their legal representative to represent them in all matters concerning the recovery of the said compensation particularly, that Summit Chambers shall take all necessary steps including action in a court of law to recover all or any compensation due to the community. In giving literal, simple and straightforward interpretation to this agreement it connotes that their solicitors must take every legal step to ensure that the communities were adequately compensated for their land being their only means of livelihood and subsistence. There were seven villages affected and dislodged by the acquisition. Legal valuations were carried out by the two sides. There was no evidence that the figures submitted were inflated. The figure of N6 million offered and paid was made single handedly within the whims and caprice of the Vice-Chancellor. The Summit Chambers failed to rise to the defence of the peasant farmers in their claim for compensation. Whereas the law is clear that when an issue of payment of compensation is at such cross road reference must be made to land Use and allocation Committee. The disparity in the amount of valuation and the amount offered had given cause to a dispute by virtue of section 30 of the Land Use Act. While a government cannot acquire land from an individual without payment of adequate compensation. The gap between N18.89 million and Six Million to communities of rural areas is suicidal.

NHRI v. Ayoade (1997) 11 NWLR Pt.530 Pg.541,

Kukoyi v. Aina (1999) 10 NWLR Pt.624 Pg.633.

What further appears to be odd, and I am sincerely taken aback by is that throughout the entire meeting where a decision highly detrimental to its client was hatched, summit Chambers did not utter a word of protest or consent. The minutes of the meeting Exhibit FUT B reflected at page 71 of the Record that it was Mr. Okolo, an estate valuer, holding brief for Summit Chambers, who expressed that the consultants were not fair to their client. Mallam A. H. Gimba a lawyer by profession, of Summit Chambers even though in attendance decided to keep mute. More disturbing is that Summit Chambers which appeared for the communities at the time of payment of compensation now appears as counsel in defence of the 1st Respondent – the Federal College of Technology Minna. This is to say the least offends against professional ethics. The whole episode leaves a sour taste in the mouth. Even the so call power of attorney on the face of it lies about itself as an authentic document yet it was registered and stamped. The law is indeed an ASS!!!!

In the final analysis this appeal lacks merit and it is hereby dismissed. The judgment of the lower court is affirmed. I make no order as to costs.

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SC.241/2002