Comrade Oyinlola Adesoji & Ors V. Federal University of Technology & Ors (2016)

LawGlobal-Hub Lead Judgment Report

SOTONYE DENTON-WEST, J.C.A.

This is an appeal against the Ruling of the Hon. Justice G. C. Okeke of the Federal High Court, Akure delivered on the 2nd day of March, 2011.

On the 4th June 2009, an action was commenced by the Plaintiffs, now Appellants vide a writ of summons in the suit FHC/AK/CS/35/2009, the Defendants, now Respondents, in response, filed an application seeking a dismissal of the case of the plaintiffs/Appellants in limine. The grounds for the dismissal were on the premise that the Federal High Court lacked jurisdiction in the matter as the case had been litigated upon before.

The lower Court delivered its Ruling on 22/3/2011, striking out the entire suit for being an abuse of Court process and having been robbed of jurisdiction.

The Plaintiffs being dissatisfied with the said judgment of the trial Court filed a Notice of Appeal challenging the whole Ruling as contained on pages 88 – 90 of the record of proceedings.

The parties filed and exchanged their respective briefs in this appeal.
The plaintiffs/Appellants’ counsel in his Brief of Argument dated 22/07/2011

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and filed 24/8/11 formulated two (2) Issues for determination reproduced as follows:
(1) whether the issue of Estoppel per rem judicata can be decided through motion without being pleaded vide statement of Defence.
(2) Whether my respected learned Judge of the lower Court could raise the issue of abuse of Court process suo muto without allowing parties to address on it.

On the part of the Respondents??? counsel, a lone issue was submitted for determination in their Respondents’ Brief of Argument dated and filed 26/03/2015. The lone issue reads thus:
(1) Whether the learned Judge of the trial Federal High Court was right or not in holding as His Lordship did, that the action brought by Appellants as Plaintiffs constitute an abuse of the process of Court; the issue(s) raised therein having been determined once by the Court.

In the determination of this appeal, the issues raised and argued by the Appellants’ counsel will be adopted for covering the grounds of this appeal. Thus the issues for determination in this appeal are:
(1) Whether the issue of Estoppel per rem judicata can be decided through motions being pleaded vide

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Statement of Defence.
(2) Whether my respected learned Judge of the lower Court could raise the issue of abuse of Court process suo muto without allowing parties to address on it.
ARGUMENT OF ISSUE 1
Whether the learned Judge of the trial Federal High Court was right or not in holding as His Lordship did, that the action brought by Appellants as Plaintiffs nnstitute an abuse of the process of Court, the issue(s) raised therein having been determined by the court.

At the hearing on 08/03/2016, counsel for the Respondents, O. AGBONIKA applied for a colleague – O. O. OLABIWONNU to address the Court, and without any objection from the other party, the Court granted leave for the counsel to proceed with the address when necessary.

Thereafter, M. P. OGELE (Esq.), counsel for the Appellants sought for the adoption of the Appellants’ Brief of Argument dated and filed on 26th day of February 2015, with a Reply Brief dated 19/05/2015 and filed on 21/05/2015. This Court was urged to set aside the Ruling and order a retrial of the matter at the lower Court.

Also O. O. OLABIWONNU (Esq.), counsel for the Respondents sought for the adoption of

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the Respondents’ Brief of Argument dated and filed on 26/03/2015, pursuant to the order of Court directing parties to refile their briefs. Counsel urged this Honourable Court to dismiss the appeal as being lacking in merit.

The Appellants’ counsel submitted that the issue of Estoppel per rem judicata is an issue that ought to be raised in the Respondents’ Statement of Defence and must be specifically pleaded, counsel argued that this requirement of being specifically pleaded was because it is a shield and not a sword and it necessitated evidence to be led to establish the issues therein in the Respondents’ Statement of Defence and not otherwise or by raising a motion to determine it. The cases of Supreme Court ??? TIJANI IKOTUN VS. OBA SAMSON OYEKANMI & 1 OR. (2008), ALL FWLR (PT. 443) PALL 1227 @ 1273 – 1274; NIGERGATE LTD. VS. NIGER STATE GOVT. & 22 ORS. (2008) ALL FWLR (PT. 406) PG. 1938 – 1944; PRINCE VAL BASSEY ADAM VS. ITA OFFIONG OKOHO & 2 ORS. (2008) ALL FWLR (PT. 415) PAGE 1732 @ 1736; HON. EMMANUEL BWACH VS. HON. JOEL DANLAMI IKENTA & 2 ORS. (2011) ALL FWLR (PT.572) PAGE 1674 @ 1677 were referred to.

???On the part of the

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Respondents, his counsel submitted on page 2 of the Respondents’ Brief that in view of the judgments referred to on page 7 – 20 of Records containing the judgment of the Federal High Court in FHC/AK/CS/64/2001 and FHC/AK/CS/95/2001 on the notice of Respondents before the issue of benefits/allowances payable to all Senior Staff Association of Nigerian Universities (SSANU) including those engaged as members of staff of FUTA Staff Secondary School, the lower Court was right in holding that the action of Appellants as Plaintiffs constitute an abuse of Court’s process.

Counsel for the Respondents submitted that the lower Court was right in holding that the Appellants’ action in suit FHC/AK/CS/35/09 constitute an abuse of Court’s process and it lies in the multiplicity of the action rather than the exercise of the right. OKORODUDU VS. OKOROMADU (1977) 3 SC, PG. 21 @32; KOTOYE VS. SARAKI (1992) 9 NWLR (PT.264) PG. 156; FRN VS. ABIOLA (1977) 2 NWLR (PT.448) PG. 444, were referred to.

Counsel argued that it constitutes an abuse of process of Court for the Appellant to commence as members of SSANU an action in Court on same subject and parties after partaking

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in the judgment favour, the same subject of litigation in previous proceedings of the Association in suit FHC/AK/CS/64/2001 and FHC/AK/CS/95/2001.

On the two major arguments by the Appellants vis-d-vis:
(i) That the issue of Estoppel cannot be articulated except a defence is filed first.
(ii) That the lower Court suo motu raised the issue of abuse of process without calling Parties.

The learned counsel submitted that the question that was brought before the lower Court by the application filed by the Respondent was primarily on lack of jurisdiction arising from issue of Estoppel and that was what led the Court of law to as a matter of duty interfere and stop the abuse of its process and therefore it cannot be held to have raised abuse of Court’s process suo motu. Counsel referred to the cases of FADEWE VS. A. G. OYO STATE (1982) 4 SC. PAGE 1 @ 5 – 6; BWC VS. UDOMISIR (2001) 35 WRN PAGE 153 @ 171 – 172; FOKO VS. FOKO (1968) NMLR PAGE 441 @ 444.

Learned counsel for the Respondents submitted that a party who conceives ex-facie or in-facie that he has a good ground of law which if raised may determine an action in limine may raise such

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ground of law without filing a statement of Defence and where such arises the ground may be taken as a preliminary point which if it succeeds, puts an end to the action of the Plaintiffs. Also referred to are the case of HABIB VS. PRINCIPAL IMMIGRATION OFFICER (1958) SCLNR P.372; CHIBUEZE IBEDIRO & ORS. (1989) 3 NWLR (PT. 594) PAGE 206 @213.

It was the Respondents’ counsel’s first submission that res judicata is not confined to issues which the Court is actually asked to decide as it also covers issues or facts which are so clearly part of the subject matter of litigation and so could have been raised since it would constitute an abuse of process of Court to allow a new proceeding on it. Reference was made to the case of FABUNMI VS. OYEWUSI (1970) 6 NWLR (PT. 159) PAGE 726 @740 PARA G-H.

In the Appellants’ Reply Brief, counsel for the Appellants submitted that the Respondents’ Brief of Argument was filed out of time and therefore having in regard to Section 9(b) of the Court of Appear Practice Direction 2013, it should be struck out. Counsel argued that their Appellants’ Brief was served on the Respondents on the 4th day of March 2015 while the

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Respondent’s Brief was filed on 26th day of March 2015.

Counsel also submitted that the Arguments as canvassed by the Respondents in Paragraph 402 of the Respondents’ Brief in respect of the allowances payable to all staff amounted to a fresh issue and therefore ought to be struck out except it is aided by application by grant of a leave of Court to bring it up.

RESOLUTION OF ISSUE 1 (ONE)
Whether the issue of Estoppel per rem judicata can be decided through motion without being pleaded vide statement of Defence.

The Black’s Law Dictionary, 7th Edition defines Estoppel as ???affirmative defence barring a party from re-litigating an issue determined against the party in an earlier action, even if the second action differs significantly from the first one. Also, tend issue preclusion, issue estoppels, direct estoppels, estoppels by judgment, estoppels by record, estoppels by verdict, cause of action estoppels, estoppels per rem judicatam”. This is to the effect that once a decision is pronounced between the parties by a Court of competent jurisdiction, the decision cannot be contradicted by any of such parties in any subsequent litigation

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between them in respect of the same subject matter.

An abuse of Court processes constitutes an improper use of judicial process by a party in litigation. It may occur in many ways like instituting a multiplicity of actions on the same subject matter against the same opponent on the same issue or instituting different action between the same parties in different Courts even though on different grounds. See SARAKI VS. KOTOYE (1992) 9 NWLR (PT. 264) PAGE 156;
OKORODUDU VS.OKOROMADU (2002) 23 WRN 188.

Now, in order for the Respondents to succeed on a plea of Estoppel by judgment as in the case at hand, it is necessary for the party to show:
(a) That the subject matter in dispute is the same, namely that everything that is in controversy in the second suit as the foundation of the claim for relief was also in controversy or points to controversy in the first suit.
(b) That it came in question before a Court of competent jurisdiction.
(c) That the result was conclusive so as to bind every other Court. As a consequence therefore, it is incumbent on a party relying on a plea of Estoppel per rem judicatam that he must establish the

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following:
(i) That the parties or their privies are the same, that is to say, the parties involved in both the previous and the present Proceedings are the same;
(ii) The claim or the dispute in both the previous and the present action are the same;
(iii) The Res i.e. the subject matter of the litigation in the two cases is the same;
(iv) The decision relied upon to support the plea must be valid, subsisting and final; and
(v) The Court that gave the previous decision relied upon to sustain the plea must be a Court of competent jurisdiction.
It is foremost and settled in law that each of these requirements must be proved and it is not a matter to be drawn by inference. Once any of the requirement is not proved, the plea of Estoppel per rem judicatam may be at large and inapplicable. See: OLORIEGBE VS. OMOTOSHO (1993) 12 NWLR (PT.270) 386, (1993) 1 SCNJ 30.
However, the consequence of the above is that when the plea of the principle is proved, it oust the jurisdiction of the Court to go into the question already decided. And so, in the case of OKUKUYE VS. AKINDO (2001) 3 NWLR (PT.710) PAGE 261 @ 301, (2001) 1 SCNJ 245, the

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Supreme Court of Nigeria per Kutigi, JSC (as he then was and later CJN) held that:
“Where therefore any of these essential ingredients is missing, a plea of Estoppels per rem judicatam must fail”
See also SAVA VS. SUSWAN (2013) 2 WRN 63.

The Appellants crux of argument on Issue One (1) was basically questioning if the issue of Estoppel per rem judicatam/issue of jurisdiction could arise through a motion application without it being specifically pleaded in the statement of Defence and several cases was cited to buttress this Point.
On the part of the Respondents, he replied that a Defendant could raise a preliminary point of law after receipt of the statement of claim and before filing a statement of Defence. While referring to the cases of ONIBUDO VS. AKBU (1982) 1 ALL NLR (PT. 1) 194, W.A.P.G.M.C. VS. OKOJIE (2004) 2 NWLR (PT. 857) PG. 232 @ 247 PAPAS F – G, he also pointed that a Defendant who conceives ex-facie that he has a good ground of law which if raised will determine the action in limine is entitled to raise such ground of law without filing a defence and the ground would then be argued on a preliminary point which if

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successful terminates the action.
This prolix of the Appellants tends to explore technicality of justice over the now avowed stance substantive justice of the Courts, in any case having highlighted earlier that the principle of Estoppel per rem judicatam when successfully invoked ousts the Courts of its jurisdiction, which an indisputable point of law, when raised or involved, the Courts are still bound to look at and consider the points of objection. See: IGBOKWE PATRICK IKE & ANOR VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS. (2010) LPELR – 4293 (CA); DAIRO VS. UBA PLC (2007) 16 NWLR (PT. 1059) 99 @ 130.
The Respondents as Defendants filed a Motion on Notice application in response to the Appellants/Plaintiffs thus:
GROUNDS
1. (a) Relief sought by Plaintiffs/Respondents in this action is speculative. It is not tied to any particular event. This Honourable Court cannot speculate therefore.
(b) Going by the pleadings of Plaintiffs, no issue has arisen between parties on relief one which this Honourable Court can be invited to adjudicate upon or/and resolve.
2. (a) Relief Two has once been articulated and

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determined by this Court as per the judgment in Suit No. FHC/AK/CS/95/2001 - COMRADE ESO VS. FUTA & ORS. (NO.1) Coram Hon. Justice Lambo Akanbi on the 7th day of April, 2005. lt is caught by the doctrine of Estoppel per rem judicatam.
(b) This Honourable Court cannot assume jurisdiction in this action as plaintiffs are barred from re-litigating the issue raised because the Relief sought relates to the issue of allowances due/payable to SSANU members by 1st Defendant.
From the above reproduced, the Respondents/Defendants’ application as stated is to the conjunctive effect that:
(i) There was no joint issues between parties
(ii) The Court was lacking in jurisdiction.
Therefore in the light of the above, was it consequential whether the Defendants pleaded the issues of Estoppel per rem judicatam/jurisdiction via a Statement of Defence. The Appellant has made so much weather on the application of a Notice or Motion as done by the Respondent.
In recourse to the Blacks’ Law Dictionary, 7th Edition, MOTION was defined as “a written or oral application requesting a Court to make a specified Ruling or order.” see also PEOPLES DEMOCRATIC

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PARTY VS. PROF. STEVE TORKUMA UGBA & ORS. (2011) LPELR - 4838 (CA).
It is instructive to note that the question of the Appellants as to whether the issue of Estoppel per rem judicatam/jurisdiction could arise through the said motion without it being specifically pleaded in the statement of Defence had been answered in the Nigerian case of WURA BOGGA NIGERIA LIMITED & ANOR VS. HON. MINISTER OF FEDERAL CAPITAL TERRITORY & ORS. (2009) LPELR – 20032 (CA), where it was held thus:
???An objection that a Court has no jurisdiction to entertain a matter or action is not on ordinary point of law contemplated under Order 22 Rule 2 of the High Court of the Federal Capital Territory Civil Procedure Rules 2004.
As I said earlier the issue of jurisdiction is very fundamental. It can be raised at any stage of the proceedings in the High Court, Court of Appeal or even the Supreme Court???
It has been held in ELABANJO VS. DAWODU (SUPRA) that it is a misconception to hold that objection to jurisdiction should be taken after filing of a statement of Defence. When the objection can be taken depends entirety on what materials are available

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before the Court. It could be taken on the basis of the Statement of Claim, evidence received or even by a Motion on Notice supported by an affidavit giving the fact upon which reliance is placed. In fact, it could be taken even on the face of the writ of summons before filing statement of Claim.???
See also KASIKWU FARMS LTD. VS. ATTORNEY GENERAL OF BENDEL (1986) 1 NWLR (PT. 19) @ PAGE 695; ATTORNEY GENERAL OF KWARA STATE VS. OLAWALE (1993) 1 NWLR (PT.272) PAGE 645; ARJAY LTD. VS. AIRLINE MANAGEMENT SUPPORT LTD.

The above reproduced shows that the issue of jurisdiction could be brought before the Court in several of the mentioned forms inclusive via a Motion on Notice supported by an Affidavit, which the Respondents duly complied with (see pages 32 – 35 of the record).

It is clear therefore that the issue of Estoppel per rem judicatam/jurisdiction as raised by the Respondents via a Motion on Notice application was in tandem in the face of the law; lssue 1 is thereby resolved in favour of the Respondents and against the Appellants.

ISSUE TWO (2)
Whether my respected learned Judge of the lower Court could raise the issue of abuse of

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Court process suo motu without allowing parties to address on it.
It was the learned counsel for the Appellants’ submission that none of the four grounds of preliminary objections as indicated in Respondents’ Motion on Notice at the lower Court raised the issue of abuse of Court process. Learned counsel referred to page 85 of the record wherein trial Court Judge raised the issue of abuse of Court process without allowing parties to address on it. Counsel queried why the lower Court ruled on an issue (abuse of Court) which was not canvassed by any of the parties and even if a Court can raise an issue suo motu, counsel argued that parties ought to be given an opportunity to address the Court on the new issue raised.

The counsel for the Respondent in response to this issue as captured under their sole issue submitted that an abuse of Court’s process lies in the multiplicity of the actions rather than in the exercise of the right. Counsel referred to the cases of OKORODUDU VS. OKOROMADU (1977) 3 SC PG. 21 @ 32, KOTOYE VS. SARAKI (1992) 9 NWLR (PT. 264) PG. 156, FRN VS. ABIOLA (1997) 2 NWLR (PT. 448) PG. 444.

Counsel for the Respondent submitted that

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it constitutes an abuse of the process of Court for the Appellants (SSANU) to commence with the proceeding at the High Court the subject of this appeal after having taken the benefits adjudged due to the Association in the prior cases of FHC/AK/CS/64/2001 and FHC/AK/CS/95/2001. Counsel referred to M. V. SCHEEP VS. MV S. ARAZ (2001) FWLR (PT. 34) PAGE 543.

RESOLUTION OF ISSUE TWO (2)
On this issue, the Appellants has yet again made so much weather of lines 21, page 85 of the record by quoting or referring albeit out of context, the averments of the learned trial Judge when he queried thus.
“Having reproduced the above from the considered judgment does the suit not constitute an abuse of Court process?”

As can be seen from the wordings, this statement was on offshoot/summation of an earlier reproduced, wherein the trial Judge in proving that the instant case had been earlier litigated upon by same parties and on same issue had reproduced some excerpts of the judgment held in FHC/AK/CS/64/01 to further buttress the reason why the lower Court lacked the jurisdiction as it would constitute an abuse of Court process to proceed in that wise.<br< p=””>

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The mere fact that the learned trial Judge rightly referred to the instant case as constituting an abuse of Court process does not mean that he was raising a fresh issue suo motu. No!

The application of the Respondents vis a Motion on Notice as earlier reproduced herein was explicitly clear as to their gravamen which is to the effect that the case had been re-litigated upon prior by same parties on same issues and therefore by invocation of the principle of Estoppel per rem judicatam, the lower Court was seized of jurisdiction in the matter, period!

What the lower trial Judge only did was to take it further by showing that the consequence to once again re-litigate the matter would amount to an abuse of Court process. In fact the trial Court was only stating the obvious; there is plethora of cases in consonance with his averments.

In SARAKI VS. KOTOYE (1992) 11/12 SCNJ 26, the Supreme Court summed what constitutes an abuse of Court process thus:
???…this will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues.???
In OKAFOR VS. A.G. ANAMBRA (1991) 2 SCNJ

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345, the Supreme Court said:
???It is the law that multiplicity of action on the same matter may constitute an abuse of the process of the Court. But this is so only where the action is between the same parties with respect to the same subject matter. The Court has a duty in such a situation to interfere to stop an abuse of its process.”
See also OKORODUDU VS. OKOROMADU (1977) 3 SC, OYEGBOLA VS. ESSO WEST AFRICAN INC. (1966) 1 ALL NLR 17O, ALHAJI UMAR MUSA YAR-ADUA & ORS. VS. ALHAJI ATIKU ABUBAKAR (GCON) & ORS. (2008) 12 SC. (PT. 1)

From the foregoing, it’s therefore crystal clear that the learned trial Judge at the lower Court was only stating the obvious when he said in his Ruling that to allow this instant action would constitute an abuse of Court process and indeed went ahead to define what constitutes an abuse of Court process (see pages 85 – 86).

Issue Two (2) is hereby resolved against the Appellants and in favour of the Respondents.

APPELLANTS’ REPLY
The learned counsel for the Appellants raised two Issues in their REPLY to the Respondents’ Brief, namely:
1. Whether the Respondents filed his Brief within

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time
2. Whether Paragraph 4.02 of the Respondents’ Brief is not a fresh issue.
1. Whether the Respondents filed his Brief within time, learned counsel or the Appellants submitted that the Respondents’ Brief of Argument was filed out of time and therefore being incompetent ought to be struck out.
Counsel made reference to Section 9(b) of Court of Appeal Practice Direction 2013 which states thus:
“In response (a) above, the Respondents shall also within 10 days of the service of the Brief for the Appellants on him file the Respondents’ Brief of which shall duly endorse with an address for service.”

Learned counsel or the Appellants contended that their Brief was served on the Respondent on the 14th day of March, 2015 while the Respondents filed their Brief on 26th day of March, 2015.

RESOLUTION
Firstly, I must reiterate that our Courts have in the interest of justice saddled itself and rightly so with the responsibility of seeking substantive justice over technical justice. See the cases of Maerskline vs. Addida Investment Ltd. (2006) 13 NWLR (pt. 997) 401,414 – 15, Niger Delta Devt. Commission (NDDC) vs. Precision Association

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Ltd. (2002) 11 NWLR (pt. 778) 317. lf indeed this appeal as brought by the Appellants was in true quest for justice, I then wonder why, it would seek to clog it with an issue which even if it succeeds would only deny the Respondents a fair hearing and in the instant case would not swing the Court’s overall decision in the favour of the Appellants, vis-??-vis the two previous issues.

In any case, I have gone through the said Section 9(b) of the Court of Appeal Practice Direction 2013 which actually states that a Respondent shall in response of cases listed in 3(a)(i) and (ii) above file the Respondent’s Brief within 10 days.

At this juncture, the question is whether the instant appeal falls within cases listed in 3(a)(i) and (ii).
Section 3(a) (i) and (ii) reads thus:
3 (a) The Presiding Justice of each division, in conjunction with the Deputy Chief Registrar of the division shall ensure that their various Registries give priority to the listing, consideration and determination of all applications and substantive appeals related to the items listed in (i) below and in respect of the Rulings and Judgments of the Court below related thereto.<br< p=””>

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(i) All Criminal Appeals originating from or involving the EFCC, ICPC or any other statutorily recognized prosecution agency or person, or where the offence relates to Terrorism, Rape, Kidnapping, Corruption, Money Laundering and Human Trafficking.
(ii) interlocutory appeals challenging the Ruling of the Court below on an interlocutory application heard in that Court.

Clearly, the instant case finds no shelter under Section 3 (a) (i) and (iii).

The Ruling of the lower Court on the application made by the Respondents in my case is to be treated as final because there is nothing pending in that Court or any other Court to which the parties would go to in order to claim any rights. See AJUTA II VS. NGENE (2002) 1 NWLR (PT. 748) 278; NASCO MGT. SERV. LTD. VS. A. N. AMAKU TRANS LTD. (2003) 2 NWLR (PT. 804) PG/ 290.

I hereby resolve this issue against the Appellants and in favour of the Respondents.

On the second leg of this Appellants’ Reply, the issue raised was:
???Whether Paragraph 4.02 of the Respondents’ Brief is not a fresh issue.”

In the interest of justice, the mentioned paragraph as painstakingly reproduced, reads

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thus:
???4.02 My Lords, the radical issue now before this court is whether in view of the judgments above referred to which settled the issue of benefits/allowances payable to all Senior Staff Association of Nigeria Universities (SSANU) including those engaged as members of staff of FUTA staff secondary school, the lower Court was right in holding that the action of Appellants as Plaintiffs constitute an abuse of Court???s process.???

Sadly, I do not see how this sentence constitutes a fresh issue since it was not raised as an issue in the first place. Therefore it needs no further mention.

In totality of all that I have said, I am strengthened in my resolve to dismiss this appeal for lacking in merit and hereby uphold the Ruling of the learned trial Judge- Hon. Justice G. C. Okeke delivered on the 22nd day of March, 2011. I make no order as to costs.

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Other Citations: (2016)LCN/8634(CA), (2016) LPELR-41366(CA)