Chief John Ehimigbai Omokhafe V. Chief John Ilavbaoje Iboyi Esekhomo (1993)
LawGlobal-Hub Lead Judgment Report
KARIBI-WHYTE, J.S.C.
This preliminary objection against the competence of this appeal was raised by the 5th Respondent on the 1st February, 1993 when the appeal came up for hearing. After hearing counsel for and against the preliminary objection, the same day, I summarily dismissed the preliminary objection and indicated that my reasons for so will be stated later. This I now proceed to do.
The appeal from the Court of Appeal is still pending in this court. The history of the case is relevant to the determination of this objection. But only so much as is necessary for this ruling will be stated. It is sufficient to say that the only surviving parties to this litigation are the 2nd plaintiff, who is now the Appellant, and the 5th Defendant, who is now the Respondent.
The ground on which the objection to the competence of this appeal rests is clearly formulated in applicant’s notice of preliminary objection which states as follows-
“that the present appeal is incompetent and/or that the present appellant cannot pursue this appeal in view of the decision in suit No.HCN/8/85; Chief John Igbeoi Ovie v. Chief Peter Higo Ajakaiye decided at the then Bendel State High Court Owan Judicial Division in 1986.”
Concisely stated, the preliminary objection is found on a plea of res judicata, that the issues in the appeal before us have been decided in the High Court between appellant and another party to who respondents are privies. This is clearly borne out by the only issue formulated for determination in the brief of the applicant.
The 5th defendant/applicant formulated the question thus;
“…….can the judgment in suit No.HNC/8/85 operate as res judicata against the plaintiffs in this case Or can the plaintiffs herein relitigate the issue of the order of rotation of the Ovie of Otuo and the validity or otherwise of the 1979 Otuo Registered Chieftaincy declaration regulating the selection of the Traditional Ruler of the Ovie of Otuo in view of the subsisting judgment in HCN/8/85.”
The 2nd plaintiff/respondent in his own brief of argument also formulated only one issue for determination in the following terms –
“Whether the respondent can at this stage now raise the issue of estoppel per rem judicatam, such issue not having been raised at the court of trial or in the court below and if it can now be raised, whether by the judgment of the High Court in Suit No. HCN/8/85, the appellant is barred from instituting this suit.”
It seems obvious from the facts before this court that there has been a series of litigation between the two families contesting the coveted title of Ovie of Otuo. At the time of this action which has come on appeal before us was decided in the High Court. Suit No. HCN/8/85 now being relied upon as res judicata had not been instituted.
A short account of the geneaology of the actions is as follows-
In 1981 Chief Peter Ajakaiye & Ors., in Suit No. HAU/4181 instituted an action against the Military Governor of Bendel State and some others. Chief John Igboei Ovie was not a party to the case. Akpovi, J. gave judgment for the plaintiffs on October 7, 1985. Soon after, Chief John Igboei Ovie, who was not a party to the action, sought and was granted leave to appeal against the judgment of Akpovi, J. as a person interested. He did not proceed with the appeal. Rather he instituted another action in Suit No. HCN/8/85 against Chief Peter Ajakaiye before Akenzua, J. Chief Peter Higo Ajakaiye pleaded estoppel per rem Judicata relying on the judgment of Akpovi, J. in HAU/4/81. Akenzua, J. gave judgment in favour of Chief John Igboei Ovie. Chief John Igboei Ovie, as I have already stated gave notice of appeal against the judgment of Akpovi J in HAU/4/81.
The notice of appeal filed by Chief John Igboei Ovie who was granted leave to appeal as a person interested was dismissed by the Court of Appeal for want of prosecution. The appeal was continued by the 4th and 5th defendants. The Court of Appeal allowed the appeal against the judgment of Akpovi, J, and set it aside. Chief Peter Higo Ajakaiye & Ors., in whose favour Akpovi, J. gave judgment, appealed to this court. 5th Respondent in whose favour the Court of Appeal gave judgment is now relying on the judgment of Akenzua, J. in Suit No. HCN/8/85 instituted by Chief John Igboei Ovie against Peter Higo Ajakaiye as res judicata against the appeal before us.
The 5th respondent was not a party to HCN/8/85.
The preliminary objection is based on the submission that the judgment of Suit No. HCN/8/85 decided by Akenzua, J. now operates as res judicata against the appellant.
It is necessary to state clearly the composition of the parties in the two cases.
In HAU/4/81, Chief John Igboei Ovie was not a party. The defendants were-
- The Governor
- Commissioner for Local Govt. & Chieftaincy Affairs
- Attorney-General.
Chief Peter Higo Ajakaiye & Chief John Ehimigbai Omokhafe, were plaintiffs in the action in a representative capacity. The sued for themselves and on behalf of Orhirla Orake Ruling House and members of Otuo clan community, except the fourth and fifth defendants and their supporters. The 4th & 5th defendants were Chief Agbebakun Idehai and Chief John Ilavbaoje Iboyi Esekhomo.
On the other hand the parties in HCN/8/85 are Chief John Igboei Ovie as plaintiff, whilst Chief Peter Higo Ajakaiye is the defendant. The defendant here was sued alone, and in his personal capacity. He did not defend the action in a representative capacity as was the case in HAU/4/81.
I shall now refer to the preliminary objection and the submissions of counsel. I have already set out the issues formulated in the briefs of argument of counsel.
I have considered the issues formulated by counsel. I regard the formulation of learned counsel to the respondent more appropriate and consistent with the facts of this case.
The submission of the applicant before us was that the deceased 1st plaintiff was a party to Suit No. HCN/8/85 as plaintiff. The order of rotation of the Ovie of Otuo, Chieftaincy title was made in favour of the Amoya-Ohigba Ruling House, to which the present applicant and respondent belong. The said judgment is subsisting and operates as res judicata against the respondent. It was also submitted that both applicant and the respondent are privies to the judgment in HCN/ 8/85. Learned counsel cited and relied on Ukaegbu & Ors. v. Ugorji & Ors. (1991) 6 NWLR (Pt. 196) 127, 145; Odaje v. Okujeni (1973) 11 SC.343 at 353 the West African Court of Appeal decision of Basil v. Hanger 14 WACA 569 at 572; Ndiribe v. Ogboga (1989) 5 NWLR (Pt.I23) 599, at P. 609; Oduka & Ors. v. Kasumu & anor (1968) NMLR 28 at p. 34; Olufunmise v. Falana (1987) 1 NWLR. (Pt. 47) 64 at P. 70. Learned counsel urged us to dismiss or strike out the appeal.
In his reply, Mr. Kayode Sofola for the respondent submitted that the application of the doctrine of res judicata is predicated on the fulfillment of the following pre-conditions. These are (a) the issues and the subjection-matter must be the same in the case relied upon as in the case sought to be dismissed. (b) It must be pleaded before the trial court. It was submitted that it was now too late for applicant even to seek leave of the court to raise it. Mr. Kayode Sofola, cited and relied on Oki & anor. v. Akel 19 NLR. 94; Ojikutu v. Feella & anor. 14 WACA 628; Attorney-General, Oyo State v. Fair Lakes Hotel Ltd. (1988) 5 NWLR, (Pt.92) 1 at p. 29 and other cases.
It is common ground that the preliminary objection of the applicant is founded on the fact that judgment having been decided in his favour in respect of the subject matter now being litigated in the appeal before us, it was unnecessary to continue to decide the same matter again which has already been decided between the parties in the previous action. Concisely stated, the preliminary objection is based on a plea of res judicata.
The plea of res judicata is based on the principle of public policy, that since the adverse party has no cause of action against him, the court lacks the requisite jurisdiction. The principle is usually referred to as estoppel by record. There are two kinds of them. There is the “cause of action” estoppel which prevents 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 parties. This referred to as the cause of action estoppel and is what concerns us in this ruling. The principle is rooted in public policy, namely, that it is for the common good that there should be an end to litigation. The principle is dressed in the Latin Maxims of “interest rei publicae ut sit finis Iitium, and “nemo debet bis vexari proceadem causa.”
The second type of estoppel per rem judicatam known as issue estoppel, does not concern us in this ruling. It is however important to state that the distinction between the two is that issue estoppel is concerned only with an issue or issues determined in the litigation, it is immaterial that the litigation has not proceeded to finality. Estoppel per rem judicatam operates only where there is a final decision on the subject matter.
In Nwaneri & Ors. v. Oriuwa (1959) 4 FSC. 132; (1959) SCNLR 316, Abbot F.J. giving the conditions necessary for the operation of the doctrine of estoppel by record, put it succinctly thus
“It is well known that before this doctrine (of estoppel per rem judicatam) can operate, it must be shown that the parties, issues and subject matter were the same in the previous case as those in the action in which the plea of res judicata is raised.”
This principle has been applied in the early case of Brobbery v. Kyere 3 WACA, 106, and the more recent decisions of this court in Alase & Ors. v. IIu & Ors. (1965) NMLR 66.
Thus the three essential prerequisites which constitute the pillars for the application of the principle are, first, that the parties must be the same in the two case or their privies. See Odua & Ors.v. Nwanze (1934) 2 WACA, 98; Shonekan v. Smith (1964) 1 All NLR, 68. Secondly, the issues and subject matter must be the same. It is not sufficient merely that the parties are the same – See Chiekwe v. Obiora (1960) 5 FSC. 258; (1960) SCNLR 566. Thirdly, there must be a valid subsisting judgment- See Eko v. Ugwuomo & Ors. (1940) 6 WACA, 206; Ogiamen v. Ogiamen (1967) 1 All NLR, 191. It is immaterial that the judgment was obtained by default – See Odu v. John Holt & Co. Ltd. (1950) 19 NLR, 127.
For applicant to succeed to succeed in his preliminary objection, he must show that the judgment in HCN/8/85 relied upon for the objection has satisfied the preconditions stated above. See Bankole v. Pelu (1991) 8 NWLR (Pt.211) 523. Even a cursory examination of the two cases immediately discloses that the parties are not the same. The plaintiff in HCN/8/85 is not a party to HAU/4/81. The defendant in HCN/8/85 was sued by the plaintiff in his personal capacity. In suit No. HCN/8/85 the defendants were sued and defended the action in their personal capacities. The action in HAU/4/81 was defended in a representative capacity. There is no doubt that the parties in the two actions are not the same – See Bankole v. Pelu (1991) 8 NWLR (Pt.211) 523.
Learned counsel to the respondent submitted that having not pleaded the estoppel at the trial, applicant is precluded from raising it on appeal. The cases of Obanye v. Chukwuma & Ijoma (1930) 10 NLR, 8; Sowa v. Amachree (1933) 11 NLR. 82; Dedeke & Ors. v. Williams & Anor. (1944) 10 WACA., 164; Owonyin v. Omotosho (1961) 2 All NLR. 304, were cited and relied upon.
Learned counsel pressed heavily on the failure of applicant to raise the defence of estoppel in his pleading. I think the peculiar facts of this case are sufficient answer to the criticism. At the time of the institution of HCN/8/85 in the High Court, the judgment in HAU/4/81 had not been delivered and could not have been relied upon in the pleadings.
It is a well-settled principle of law that a challenge to the jurisdiction of the court can be raised at any stage of the trial, and even on appeal. See Ukaegbu v. Ugorji (1991) 6 NWLR (Pt.196) 127; Agu v. Ikewuibe (1991) 3 NWLR (Pt.180) 385. A plea of estoppel per rem judicatam is a challenge to the jurisdiction of the court. As I have already said in this ruling, a plea of res judicata is an admission that the judgment is valid and that the subject matter in the present action has been determined in the judgment relied upon.
I will adopt the statement in Smith’s Leading cases (12th Edition) 754, at p. 767, citing a passage from the notes to the Duchess of Kingston’s Case (1776) where it was said:
“An estoppel, therefore, is an admission; or something which the law treats as equivalent to an admission, of an extremely high and conclusive nature – so high and conclusive, that the party whom it affects is not permitted to aver against it or offer evidence to controvert it.”
See MacNair J. in Bell v. Holmes (1956) 3 All E.R. 449. In Nwaneri v. Oriuwa (supra) Abbot F.C.J. delivering the judgment of the Federal Supreme Court, held that the fact that judicial finding is made during the pendency of the action in which the plea of res judicata is raised does not prevent it operating as an estoppel.
In Nwaneri v. Oriuwa (supra), as in the appeal before us, the writ was issued and proceedings begun and concluded during the pendency of the High Court proceedings, the contention that the decision could not operate as res judicata was rejected. In this case the appeal against HAU/4/81 was still pending when the HCN/8/85 was decided. The distinction between Nwaneri v. Oriuwa (supra) and the appeal before us is that whereas in Nwaneri v. Oriuwa all the essential ingredients for the application of res judicata were present; the parties in the instant case are not the same, the principle is therefore not applicable.
It is for the reasons I have given above that I dismissed the preliminary objection of the respondent/applicant seeking to dismiss/strike out this appeal.
SC.320/1990
