Ebonyi State University & Anor V. Mr. Nwudele Ifeanyi & Anor (2016)
LawGlobal-Hub Lead Judgment Report
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
This is an appeal against the ruling of the Ebonyi State High Court sitting at Abakaliki (hereinafter referred to as the ?Lower Court?), delivered by Hon. Justice John Igboji, J., on the 28th day of February, 2013. The suit which gave rise to this appeal, was instituted by the plaintiff/respondent vide a writ of summons and statement of claim, both filed on the 21st day of June, 2012; wherein the plaintiff/respondent claimed against the defendant/appellant for the following reliefs:
(a) AN ORDER entering judgment in favour of the plaintiff: directing the 1st and 2nd defendants to pay to the plaintiff jointly and severally, the sum of N3,146, 000.00 (Three Million, One Hundred and Forty-Six Thousand Naira only) inclusive of the N350,000.00 (Three Hundred and Fifty Thousand) cost of the additional 50 iron protectors/balustrades used in perimeter concrete fencing of CAS,) being the total outstanding unpaid balance of the debt the defendants owe the plaintiffs for the various building materials and allied products the plaintiff supplied to the
1
defendants on demand which the defendants ordered and were supplied through the 1st defendant?s Project Management Committee under the chairmanship of the 3rd defendant who officially acknowledged those supplies.
(b) An Order directing the 1st and 2nd defendants to pay the plaintiff jointly and severally the sum of N10,000.000.00 (Ten Million Naira), being special damages arising from losses of profit/incomes the plaintiff ought to have realised in using that money in carrying on his business if the defendants has paid the said debt to the plaintiff as and when fallen due; the service charges the plaintiff paid to the counsel to prosecute this action; the interest rate the plaintiff pays to his bankers monthly on the bank loan he procured to effect those supplies to the defendants since 2008, the contract between the parties started.
(c) An Order directing the 1st and 2nd defendants to pay to the plaintiff jointly and severally the sum of N2,000,000.00 (Two Million Naira), being general and exemplary damages against the mischievous refusal of the 1st and 2nd defendants to pay to the plaintiff for the goods the 3rd defendant (an accredited agent
2
of the 1st and 2nd defendants fully acknowledged in writing).
(d) AND for such order or other orders as this Honourable Court may deem fit to make in the circumstance.?
?The facts of the case were that; the plaintiff/1st respondent asserted that pursuant to an offer, he supplied building materials worth N6,003, 860.00 (Six Million, Three Thousand, Eight Hundred and Sixty Naira). The plaintiff/1st respondent averred that defendants after several pleas and demand letters, grudgingly paid him the sum of N3,207,860.00 (Three Million, Two Hundred Thousand, Eight Hundred and Sixty Naira), leaving the balance of N2,796,000.00 (Two Million, Seven Hundred Thousand and Ninety Six Thousand Naira) unpaid. The plaintiff/1st respondent further averred that pursuant to a separate order/demand, he supplied the 1st defendant/appellant another set of goods worth N350,000.00 (Three Hundred and Fifty Thousand Naira), which said sum also has not been paid to him. He averred that the total debt being owed to him by the defendants amounted to N3,146,000.00 (Three Million, One Hundred and Fifty-Six Thousand Naira). Consequent to the said claims, the defendants filed their
3
respective statement of defence. The 1st and 2nd defendants/appellants statement of defence was filed on the 11th day of July, 2012, wherein they denied the said debt and pleaded that the claim of the plaintiff/1st respondent was statute barred; and the defence of res judicata. The 3rd defendant/2nd respondent on his own part filed his statement of defence on the 5th day of November, 2012, wherein he admitted all the averments of the plaintiff/1st respondent.
?The 1st and 2nd defendants/appellants brought a motion on notice, filed on the 11th day of July, 2012 and thereby challenged the Lower Court?s jurisdiction to hear the said suit on the ground that the plaintiff/1st respondent?s claim was statute barred and that the case has been previously heard by another High Court Judge and determined on the merit (that is, he raised the plea of res judicata); wherein it was found that the claim of the plaintiff/1st respondent was statute barred, pursuant to Section 31 (2) of the Ebonyi State University Law, 2009. The parties duly filed their respective affidavits, counter affidavits and written addresses in support and opposition to the said motion.
4
After due consideration of all the processes filed before him, the learned trial judge dismissed the said application/ motion.
The 1st and 2nd defendants/appellants were not satisfied with the said ruling. They caused an appeal to be lodged against the same, vide a notice of appeal filed on the 12th day of March, 2013. They appealed against the said judgment on five (5) grounds of appeal, which are reproduced below without their particulars.
?GROUND ONE:
The learned trial Judge erred in law when he held that the action of the 1st Respondent was not statute barred having regard to Section 9 of the Limitation Law (Cap 102) Laws of Ebonyi State of Nigeria, 2009.
GROUND TWO: The learned trial Judge erred in law when it held that Suit No. HAB/49/2012 does not in any way amount to re-litigation of Suit No. HAB/24/2012.
GROUND THREE ? MISDIRECTION IN LAW
That the learned trial judge misdirected himself when he held that by reason of Section 9 of the Limitation Law, Laws of Ebonyi State of Nigeria 2009, Section 31 (2)1 of the Ebonyi State University Law was not applicable to Suit No.
5
HAB/49/2012.
GROUND FOUR: MISDIRECTION IN LAW
The learned trial Judge misdirected himself when he dismissed the application of the first and second defendants and assumed jurisdiction to hear Suit No. HAB/49/2012 on the basis that a party whose action was determined in limine without hearing on its merit, reserves the right to appeal thereto, apply for re-listment or file a fresh action altogether.
?GROUND FIVE: ERROR IN LAW
The learned trial judge erred in law when he held that he has jurisdiction to entertain Suit No. HAB/49/2012 when by the valid and subsisting ruling of Hon. Justice Eze Udu J. of High Court No. 3 Abakaliki in Suit No. HAB/24/2012, the High Court of Ebonyi State has no jurisdiction to determine the suit by reason of Section 31 (2) of the Ebonyi State University Law as amended.?
Henceforth in this judgment, the 1st & 2nd defendants/appellants would be referred to as the appellants. The plaintiff/1st respondent on the other hand would be referred to as the 1st respondent, while the 3rd defendant/2nd respondent would be referred to as the 2nd respondent.
?In accordance with the rules
6
of this Court, the parties duly filed and exchanged their respective briefs of argument. The appellants? brief of argument was prepared by RT. Hon. A. N. Nwankwagu, Esq. The said brief was filed on the 17th day of July, 2013. It was deemed by this Court as having been properly filed and duly served on the 1st day of July, 2014. The 1st respondent?s brief of argument was filed by Onugha J. E. Onugha, Esq. The said brief of argument was filed on the 14th day of August, 2013. It was deemed as having been properly filed and duly served by order of this Court made on the 29th day of October, 2014. The 2nd respondent?s brief of argument was prepared by V.C. Okechukwu, Esq. The said brief of argument was filed on 20th day of June, 2014. It was deemed as having been properly filed and duly served with leave of this Court which was granted on the 29th day of October, 2014. In response to the respondent?s brief of argument, the appellants filed the appellants? reply brief on the 29th day of October, 2014.
?Towards the determination of this appeal, the learned counsel for the appellants distilled three (3) issues. The said issues are as
7
follows:
?1. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE HELD THAT THIS SUIT WAS NOT STATUTE BARRED IN THAT THE APPLICABLE LAW WAS SECTION 18 OF THE LIMITATION LAW (CAP 102 LAWS OF EBONYI STATE 2009 AND NOT SECTION 31(2) OF EBONYI STATE UNIVERSITY LAW (CAP 81) LAWS OF EBONYI STATE 2009, AS AMENDED (Distilled from grounds 1 and 3).
2. WHETHER THE DOCTRINE OF ESTOPPEL PER REM JUDICATEM IS APPLICABLE TO THIS SUIT HAVING REGARD TO THE EARLIER JUDGMENT OF HON. JUSTICE EZE UDE, J. (Distilled from grounds 2 and 5).
3. WHETHER THE LEARNED TRIAL JUDGE HAS JURISDICTION TO HEAR AND DETERMINE THIS SUIT (Distilled from ground 4).
The learned counsel for the 2nd respondent in the same vein distilled three (3) issues for the determination of this appeal. The issues are as follows:
?1. Whether the learned trial Judge was right when he held that this suit was not statute barred in that the applicable law was Section 18 of the Limitation Law (Cap 102) Laws of Ebonyi State, 2009 and not Section 31 (2) of Ebonyi State University Law (Cap 81) Laws of Ebonyi State 2009, as amended? (Distilled from grounds 1 and 3)
2. Whether the
8
doctrine of Estoppel Per Rem Judicatm (sic) is applicable to this suit having regard to the earlier judgment of Hon. Justice Eze Udu? (Distilled from grounds 2 and 5).
3. Whether the learned trial Judge has jurisdiction to hear and determine this suit? (Distilled from ground 4).?
The learned counsel to the 1st respondent on his own adopted and argued on the issues as formulated by the appellants.
Having properly considered the record of appeal placed before us and processes filed by the parties in this Court, I am of the firm viewpoint that the central issue that calls for determination in this appeal is:
1. Whether the Lower Court was right to have held that it has jurisdiction to hear and determine this suit.
RESOLUTION/LEGAL ARGUMENTS
In the Supreme Court?s case ofNdaeyo v. Ogunaya (1977) 1. S. C. 7, jurisdiction was defined to mean:
?the authority which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by Statute, charter or commission under which the Court is constituted, and
9
may be extended or restricted by similar means.?
See also the case of Attorney-General of the Federation v. Guardian Newspapers Ltd. & Ors. (1999) 9 NWLR (Pt. 618) 187.
For the determination as whether or not a Court has jurisdiction, the proper or main document to be examined is either the writ of summons or the statement of claim. See Hasan v. Aliyu (2010) 17 NWLR (Pt. 1223) 547.
It is also trite that a Court of law is only competent to exercise jurisdiction in respect of any matter where:
1. It is properly constituted as regards numbers and qualification of the members and no member is disqualified for one reason or the other;
2. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction;
3. The case comes before it by due process of law and upon fulfilment of any condition precedent to the exercise of its jurisdiction;
See the cases of Madukolu & Ors. v. Nkemdilim & Ors. (1962) 2 S.C.N.L.R., 341 and Nwankwo v. Yar?adua (2016) 12 NWLR (Pt. 1209) 518.
?In the instant case, the appellants? contention was to
10
the effect that the Lower Court lacks jurisdiction to entertain this suit based on the following:
1. That the claim of the 1st respondent is statute barred; and
2. That the case is also caught by estoppel of res judicata, the suit having been heard and struck out earlier by another High Court in the same division.
I will consider the grounds of the appellant?s challenge or complaint as raised in reverse order. The doctrine of res judicata has its foundation in the legal maxim? nemo debet bis vexari pro una et eadem causa? (meaning no man ought to be twice vexed or harassed, that is tried for one and the same cause). Thus, if an action is brought and the merits of the question for determination was examined by a Court of competent jurisdiction between the parties and a final judgment obtained by either party, the parties (and/or their privies) cannot bring an action again on the same issue, even if some other ground(s) of objection or argument might have been raised against the first trial which would have led to different judgment. See Ojema & Ors. v. Momodu & Ors. (1983) 3 S.C. 173; LPELR – 2371; and Bamishebi v.
11
Faleye (1987) 2 NWLR (Pt. 54) 51. Thus, no party is allowed to (that is, he is precluded from) contending the contrary or opposite of any specific point which having been once distinctly put in issue, has with certainty and solemnity been determined against him. This principle applies whether the point involved in the earlier decision is one of fact or law; or one of mixed fact and law. See the case of Bamishebi v. Faleye, (supra).
For a defence of res Judicata to succeed, the following must be conjunctively established:
1. The parties in the previous action and the present action must be the same;
2. The subject matter of litigation in the previous action, must be the same as the one in the present action;
3. The claim in the previous action must be the same as the one in the present action;
4. The judgment in the previous case must be given by a Court of competent jurisdiction; and
5. The decision must be final, in other words, it must have finally disposed of the rights of the parties.
See the cases of Ajuwon v. Adeoti (1990) NWLR (Pt. 132) 271 and Adebayo v. Babalola (1995) 7 NWLR (Pt. 408) 383.
?The parties in this suit
12
are ad idem that the first four ingredients are present in this case. The only point of dispute lies in the fifth ingredient. The learned counsel for the appellants contended that the suit that culminated into this appeal had previously been litigated in Suit No. HAB/24/2012 and determined on the merits. Thus, he submitted that the Lower Court was (with due respect) wrong to have held that this suit was not caught by the plea of res judicata. The respondents on the other hand, argued that the ruling delivered in the said suit No. HAB/24/2012 was not a final judgment. They further maintained that the said suit was merely struck out, and can in law be relisted or refiled as the 1st respondent has done in this case.
It is instructively significant to point out here, that the said Suit No. HAB/24/2012 was struck out by Hon. Justice Eze Udu, J., of the Ebonyi State High Court, where the learned trial judge held that the suit was statute barred (that is the case was caught by Section 31 (2) of Ebonyi State University Law). What then is statute bar and of what effect is it? It simply means a suit barred by provisions of a statute. It is usually circumscribed
13
with regard to time, that is, the bar gives a time limit during which certain actions or steps should be taken, and thereafter the party concerned is barred from taking action after the period specified in the statute. Any action taken after or outside the specified limit or period is of no avail and has no valid or utility effect. The bar can be lifted or the limit extended only if the statute allows it to be done. Where there is no such extension, the action if carried out would be invalid. See the case of Araka v. Ejeogwu (2000) 12 SC (Pt. 1) 99. The Supreme Court, per Kalgo in the case of P. N. Udoh Trading Co. Ltd. v. Abere (2001) 11 NWLR (Pt. 723) 144, while reiterating the position pronounced in the case of Eboigbe v. NNPC (1994) 5 NWLR (Pt. 347) 649 @ 659, wherein the Apex Court held as follows:
?Where an action is statute-barred a Plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of limitation laid down by the limitation law for instituting such an action has elapsed. See Odubeko v. Fowler (1993) 7 NWLR (Pt 308) 637. An action commenced after the expiration
14
of the period, within which an action must be brought, stipulated in statute of limitation is not maintainable. See Ekeogu v. Aliri (1991) 3 NWLR (Pt. 179) 258. In short when the statute of limitation in question prescribes a period within which an action must be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. See Sanda v. Kukawa Local Govt. (1991) 2 NWLR (Pt. 174) 379.?
Let me reiterate and instructively significantly too, that when a defence of statute bar has been raised and sustained, the case is held to have been determined on the merit. See the cases of Nigeria Ports Authority Plc v. Lotus Plastics Ltd. & Anor (2005) 19 NWLR (Pt. 959) 158; and Olagunju & Anor v. PHCN (2011) LPELR – 2556. Thus, it is immaterial whether the Court pronounced, that such an action is struck out or dismissed. Both expressions in this circumstance would have the same effect. That is, dismissal on the merit.
Flowing from the above, I hereby agree with the learned counsel for the appellants that this suit has been squarely caught by the doctrine of estoppel per rem judicatem, and it is no
15
longer maintainable in law. I also agree with the said learned counsel that the proper option available to the 1st respondent is to lodge an appeal against the ruling delivered in Suit No. HAB/24/2012, and not to re – file another suit as it was done in the instant case (if he so wish).
Having resolved this issue in favour of the appellants as done in the manner stated above, I feel no need to further consider the other ground of challenge or complaint as mentioned earlier in this judgment. This appeal is hereby found by me to be meritorious and it is accordingly allowed. The ruling of the Lower Court delivered by Hon. Justice John Igboji, J. on the 28th day of February, 2013 is hereby set aside. In its place, it is hereby ordered that Suit No. HAB/49/2012 be and it is hereby dismissed for want of jurisdiction. No order is made with regard to costs.
Other Citations: (2016)LCN/8936(CA)
