Imisi Awolona V. Nigerian Deposit Insurance Corporation (2007)
LawGlobal-Hub Lead Judgment Report
ALFRED P. E. AWALA, J.C.A.
This is an appeal against the Ruling of Yahaya J of the Federal High Court, Ibadan Division delivered on 23/7/02 in Suit No.FHC/IB/CS/149/2001. The Appellant, who was Plaintiff at the lower court, claimed against the Respondent, the Defendant thereat by originating summons the following reliefs:
- “Declaration that upon the issuance of liquidator’s certificate (creditors) by the defendant to the plaintiff the defendant had accepted responsibility for the judgment debt of the liquidated Allied Bank Plc.
- An order directing the defendant to pay forthwith to the plaintiff the sum of One Million and Seven Thousand Two hundred and Seventy Six Naira Thirty Six kobo (1,007,276.36k) and 5% thereon from 15/5/96 until the total debt is liquidated with 10,000.00 awarded as costs in suit No. 1/135/97.
- AND FURTHER ORDER(S) as the Honourable Court may deem fit to make in the circumstances.
For an apt comprehension of this appeal, I will tell the story as told at the lower court.
The Appellant sued Allied Bank of Nigeria Plc (now in liquidation and currently being managed by the Respondent) to the High Court of Justice of Oyo State, holding at Ibadan, to recover the outstanding balances in his two accounts totaling N1,007,276.36k on 5/5/97 and he won but the judgment was not executed. In 1998, the Central Bank of Nigeria revoked the license of the Allied Bank of Nigeria Plc and by the instrument of Revocation vested its management on the Respondent.
The Appellant, subsequently in 2001 filed an action with suit number as aforesaid at the lower court, the Federal High Court, Ibadan Division against the Respondent as liquidator by way of an originating summons dated 7/11/01 for the court’s determination of the following questions:-
(1) Whether upon the liquidation of Allied Bank Plc the Defendant/Respondent inherits its assets and liabilities?
(2) Whether in answering question No 1 in affirmative, the judgment in Suit No. 1/135/97 between the plaintiff herein and Allied Bank Plc is binding on the Defendant?
(3) Whether upon the issuance of liquidator’s certificate (creditors) by the defendant, the plaintiff is not entitled to the payment of the judgment debt forthwith?
The Respondent, in opposition, filed an application dated 26/2/02 for an order of the said lower court dismissing the suit on the ground that the court lacks jurisdiction to adjudicate on the matter as the same is concluded by res judicata.
Upon hearing the application filed by the Respondent on 19/6/02 the Appellant’s suit was dismissed on the ground that the action was a relitigation of Suit No. I/135/97 which is still valid and is substituting thus upholding the plea of res judicata raised by the Respondent.
Aggrieved, the Appellant appeal to this court by a Notice of Appeal dated 18/10/02 formulating two grounds. In accordance with the rules of this court, parties’ Counsel filed and exchanged their respective Briefs of Argument: Appellant’s and Respondent’s Briefs. No Reply Brief was filed.
In the Appellant’s brief two issues are couched for determination as follows:-
(1) Whether the trial court was right to have upheld the plea of Res judicata raised by the Responded bearing in mind the difference of parties involved in Suit No. 1/135/97 and FHC/IB/CS/149/2001, subject matter and reliefs claimed in the two cases.
(2) Whether the lower court lacks jurisdiction to entertain the claim as constituted in the originating summons of the Appellant.
The Respondent adopted the 2 issues distilled by the Appellant as above with slight modifications, thus:-
(1) Whether the lower court was right in holding that the plea of res judicata succeeded on the basis of the judgment of the Oyo State High Court.
(2) Whether the lower court has jurisdiction to entertain the Appellant’s claim as constituted in the originating summons
I will adopt and utilize the Respondent’s modified two issues, as they are apt and more germane for the resolution of this appeal.
whether the lower court was right in holding that the plea of res judicata (sic) successful on the basis of the judgment of the Oyo State High court, the Appellant’s learned Counsel N. O. O. Oke, SAN argued that the plea of res judicata can not avail the Respondent to preclude him from reacting to the claims and issues raised in the originating summons dated and filed on 7/11/01 by the Appellant because it is on record that the parties in Suit No.1/135/97 Imisi Awolana v. Allied Hank of Nigeria Plc are different from those in FHC/IB/CS/149/2001 Imisi Awolana v. Nigerian Deposit Insurance Corporation (N.D.I.C.). That it is very obvious and unambiguously patent, that Allied Bank of Nigeria Plc that was the defendant in the earlier case is not the defendant in the matter Suit No.FHC/IB/CS/149/2001. He cites Ishie v. Mowanso (2002) 13 NWLR (pt. 684) 279 wherein it is held
“where an action is brought against a person personally and is prosecuted to judgment and later a further action is brought against him in a representative capacity by the plaintiff in the original action, the judgment is not res judicata as the parties to the respective actions are not the same; since in one action the defendant is sued personally and in the other as representative of a class of persons”
He cites also Owners of NV LACON v. OS (Nig.) Ltd (2000)13 NWLR (pt.685) 512 – 513 where it is held by the Supreme Court that “to sustain the plea, the party relying on it must show: (a) that the parties in the previous case relied upon as creating res judicata and the parties in the case in which the plea is raised are the same. (b) that the subject matter of the litigation in the two cases are identical. (c) and that the claim and issue in the two cases are the same”.
He then submits that the issues in the first case and in the present, the subject matter of this appeal, are not the same. Whereas, in the former, it is for a liquidated monetary demand upon which judgment was given, in the latter the reliefs sought are (1) for a declaration as above, (2) for an order directing the defendant to pay forthwith as above. That the reason for filing Suit No. FHC/IB/CS/149/2001, the subject of this appeal, is not to determine the genuiness of the money claimed by the Plaintiff/Appellant but rather to determine whether upon the liquidation of the bank, a valid and subsisting judgment against it can not be enforced against its Provisional Liquidator?
In answering this question himself the Learned Senior Counsel submits that it is now a trite principle of law that a judgment given by a court of competent jurisdiction inures, it remains final and subsisting until set aside either by the court itself where it lacks jurisdiction or by an Appellate court. He cites Kamalu v. Munna (1997) 5 NWLR (pt. 505) 321 at 325. And that since the High Court judgment in Suit No. 1/135/97 was communicated to the defendant (Allied Bank Plc) before its liquidation in 1998 and the judgment was not appealed against it remains binding on it. The Senior Counsel then refers to Order 2 Rule 17 of the Sheriff and Civil Process Act Cap 407 LFN 1990 which provides thus:-
“If any person against whom a judgment has been given shall die before execution has been fully had thereon, application for execution thereof may be made against the legal representative or the estate of the person so dying as aforesaid, and if the court shall think proper to grant such application the judgment may be executed accordingly.” [emphasis by counsel]
He opined therefore that the Ruling of the lower court appealed against is a misconception of the law, and that the Appellant is not estopped by res judicata from enforcing the valid legally delivered judgment by a court of competent jurisdiction,
He urges us to resolve issue one in favour of the Appellant and against the Respondent.
Replying and arguing issue one, Learned Respondent’s counsel submits that she agrees with the proposition of the law relating to res judicata as submitted at page 3 of the Appellant’s Brief. She Cites Oloriegbe v. Omotosho (1993) 1 NWLR (pt. 270) 386 and Oshodi v. Eyifunmi (2000) 13 NWLR (pt. 684) 298 in addition, but argues that it is in the application of the principles to the facts that the Appellant’s counsel erred. Counsel then submits that for a proper consideration of a plea of res judicata, the term ‘parties’ is to include ‘privies’, Contending further counsel submits there are three types of privies in law – privies by blood (such as successors-in-title, ancestors, and heirs), privies in law (such as executors and testators) and privies in estate (such as vendors and purchasers). Counsel cites Coker & Anr v. Sanyaolu (1976) 9-10 SC 293 in support.
Contending further Respondent’s counsel submits that the previous suit, that is, Suit No. 1/135/97 was between the Appellant and Allied Bank of Nig. Plc and that by instituting the action leading to this appeal against the Respondent at the lower court (Federal High Court), the appellant had acknowledged that the Respondent is privy to Allied Bank of Nig. Plc She cites Iyavi v. Eyigebe (1987) 3 NWLR (pt. 61) 532.
Contending further counsel submits that in determining whether the plea of estoppel per rem judicatam inures or is relevant to the issues, the subject matters of the two actions and the parties are same, the court is permitted to study and or peruse the pleadings, the proceeding and the judgment in the previous proceeding. In addition the court may also examine the reason for the judgment and other relevant facts to discover what was in issue in the previous case. She cites Fadiora v. Gbadebo (1978) 3 SC 219 at 229.
Arguing further counsel submits that it is not in dispute that after the revocation of the license of Allied Bank of Nigeria Plc by the Central Bank of Nigeria vide the official gazette No. 485 of 16/1/98 that the Respondent was appointed by the same instrument as a Provisional Liquidator of Allied Bank Plc with authority to institute and defend any action for and on behalf of Allied Bank of Nigeria Plc. This makes N.D.I.C. a privy to Allied Bank of Nigeria Plc, Counsel cites Akpan v. Utin (1996) 7 NWLR (pt. 463) 634 where the Supreme Court held
“that parties under the law of estoppel per rem judicatam include not only the parties named on the writ but also their privies.”
Counsel then submits that the Respondent being a privy of Allied Bank of Nig. Plc, as conceded by the Appellant, by suing them to the court below leading to the ruling appealed against, is bound by the judgment entered in suit No.1/135/97 which is enforceable at the State High Court which gave the judgment against it (NDIC). Cites Olawuyi v. Adeyemi (1990) 4 NWLR (pt. 147) at 755.
The learned Respondent’s counsel then submits that it is important to reiterate that the Appellant’s claim was filed at the Oyo State High Court for the sum of N1,007,276.36k being the balance in the two accounts maintained by the Appellant with Allied Bank of Nigeria Plc and is enforceable thereat. That the appellant seeking the payment of the same amount from the Respondent as the liquidator at the lower court, Federal High Court, pursuant to Order 2 Rule 17 of the Sheriff and Civil Process Act Cap 407 LFN 1970 is very wrong. That Order 2 Rule 17 is not applicable in the Court below at all, it is to the Appellant’s disadvantage. The Appellant’s remedy in enforcing the said judgment obtained at the state High court, it should have been against the Respondent as a banker (privy of Allied Bank of Nigeria Plc) at the said State High Court.
Therefore that this suit resulting in this appeal filed in the court below is no more than an effort to replay or re-litigate this matter all over again, a matter already decided since 1997 by Adekola J. There must be an end to litigation, she contended. And she states that the case of Ishie v. Mowanso (supra) relied on by the Appellant (at page 2 of his brief) is not relevant, as that case relates to suits instituted and defended in a representative capacity.
Arguing yet further, counsel asked, what would have been the effect of the pronouncement of the Federal High Court if the action had not been dismissed? If the orders sought for example (reproduced at page 3 of the Appellant’s brief) were granted by the lower court would that have given effect to enforcing the judgment of the State High Court? Certainly not, Counsel submits. That that would have been a clear cut case of double jeopardy or relitigating the issues already decided on by the State High Court. She cites Hale v. A.G. Leventis (1961) All NLR 702 and Houstead & Ors. v. Commissioner of Taxation (1926) AC 155. Submitting further still, counsel contends, it is not in dispute that a judgment had previously been entered by the State High court in respect of Accounts Numbers S/B5602054436 and S/B5602068135 in suit No..1/135/97 in Imisi Awolana v. Allied Bank of Nigeria Plc in 1997. The Federal High Court is now in effect being asked to enforce the judgment of the State High Court a court of coordinate or of concurrent jurisdiction with the lower court. It is now trite that no court has jurisdiction to entertain or sit as an Appeal Court on a matter that has been decided by a court of coordinate or concurrent jurisdiction. Counsel cites, Akanbi v. Durosaro (1998) 12 NWLR (pt. 577) at 284. Akporue v. Okei (1973) 12 SC 137.
She urged us therefore to resolve issue one in favour of the Respondent and against the appellant.
On Issue 2, “Whether the lower court has jurisdiction to entertain the Appellant’s claim as constituted in the originating summons?”
The Learned SAN submits it is a trite principle of law that an originating summons can be used to commence action in the following instances:
(a) Where the sole or principal question at issue is, or is likely to be, one of construction of a written law or of any instalment made under any written law, or any deed, will, contract or other document or some other question of law.
(b) There is unlikely to be any substantial dispute of facts.
And he therefore argues as follows:-
Firstly, that the appellant instituted the action at the Federal High Court for the determination of the question raised in page I of the record earlier reproduced above. He then argued that the questions raised thereat are within the jurisdiction of the court below as the learned trial Judge himself observed in his Ruling delivered on 23/7/02 at page 27 of the record as follows:-
“I am in total agreement with the learned counsel for the defendant/applicant that the Federal High Court has jurisdiction to adjudicate on the matter in dispute between an individual customers and his bank in respect of transaction between them” I therefore hold and rule that the provision of S. 251 (i) (d) of the 1999 Constitution confers jurisdiction on both federal High Court and State High Court in dispute arising from a hanker/customer relationship in respect of the transaction between them.” (Emphasis by counsel.)
Appellant’s counsel then submits that the underlined extracts from the ruling above shows clearly that the Appellant was properly before the court below with his originating summons and the issues herein can form what can confer jurisdiction on that court. He cites Wakwah v. Ossai (2002) 2 NWLR (pt.752) 548 at 551.
Secondly, that a part from Section 251(1)(d) supra, Section 6(6) b of the 1999 Constitution also confers judicial jurisdictional powers on the court below.
The judicial powers vested in accordance with the foregoing provisions of the Constitution that is to say 6 (6) b reads:-
“….shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for determination of any question as to the civil rights and obligations of that person.”
(emphasis by Counsel)
Counsel then concludes that the 1999 Constitution empowers all Superior Courts of record including the court below to entertain matters between parties and it is never the intendment of the Legislature to shut the gate of justice to any aggrieved party in a litigation. Thus the Appellant had the constitutional right to move the court below to determine his civil right against the Respondent.
Counsel cites Abehke v. NDIC (1995) 7 NWLR (Pt. 406) 288 at 240 – 214. Supreme Court held.
“The purpose of appointing a liquidator for a company is not to conduct legal proceedings in winding up a company. That would be a very restricted function and one which would be rather unproductive in the interest of all concerned. In my view, the real purpose of appointing a liquidator, put in a nutshell, is for him to take control of the company, collect its assets, pay his debts and finally distribute any surplus among the members in accordance with their rights” (Emphasis by counsel.)
The Senior Counsel then stressed that the above roles are the primary responsibilities of the provisional liquidator. Therefore, the trial court constitutionally ought to have looked at the originating summons and make pronouncement on it as per the enactment in s.6(6) (b) (supra).
In the premises Learned SAN urged us to resolve issue two in favour of the Appellant and against the Respondent.
On the other hand, the Respondent Learned Counsel in arguing issue two submits as follows:-
First, that the constitutional right of the Appellant as entrenched in the Constitution [section 6 (6) (b) and 251(1) (d) (supra)] is to move the court to determine the civil right and obligation of the Appellant against the Respondent subject of course to the limitation that the court is competent or has jurisdiction to do so; but not where a considered judgment by a court of coordinate jurisdiction subsists is concerned. Therefore the issue stated in paragraph 4.05 of the Appellant’s Brief is not relevant to this appeal, it ought not to have been raised in the brief at all. For ease of reference paragraph 4.05 of the Appellant Brief reads:-
“4.05 It is worthy of mentioning here that the argument of the Appellant is that the Defendant/Respondent being a provisional liquidator to the former Allied Bank of Nigeria Plc the defendant inherits the assets and liabilities of Allied Bank of Nigeria Plc. Therefore the taking over of the management of Allied Bank of Nig. Plc, the defendant/respondent ought to give preference to the payment of judgment legally obtained before consideration should be accorded to the Depositor.”
(Emphasis mine)
Respondent’s Counsel submits that in paragraph 4.05 as above, the issue of priority of settlement of claim was raised which was not in issue at the court below. Counsel urges us to disregard that submission as incompetent. She cites Fadiora v. Gbadebo (1978) 3 SC 219 and Obatovinbo v. Oshataba (1996) 2 NWLR (pt.450) 531 at 550.
Secondly, contending further learned Respondent’s counsel submits that the Respondent being the Provisional Liquidator of Allied Bank of Nigeria Plc in liquidation is duty bound to perform its responsibilities strictly in compliance with laws that set it up: that is to say, (1) Nigerian Deposit Insurance Corporation Act 1988 and (2) Banks Other Financial Institutions Act 1991.
Counsel refers to Section 26 of the N.D.LC. Act 1988 which states:-
“A depositor shall receive from the corporation as provided under sub-section (i) (c) of Section 5 of this Decree a maximum amount of N50,000.00 of assessable deposit of an insured Rank in the event of failure,” (Emphasis by counsel)
Thirdly, that by forwarding a creditor’s liquidator’s claim form to the Respondent, (see page 9 of the record) and the Appellant accepted and completed same, he had elected to be regarded and be treated as a Judgment Creditor which makes him an uninsured creditor, and as such payment on creditor’s liquidators’ certificate can only be considered after the insured depositors of the Bank (Allied Bank) have been fully paid. Counsel also refers to section 50 of the Bank and Other Financial Institutions Act 1991 which stipulates:-
“Where a bank is unable to meet its obligations or suspends payments, the assets of the bank in the Federation shall be available to meet all the deposit liabilities of the bank and such deposit liabilities shall have priority over all other liabilities of the bank.” (Emphasis by counsel)
She reiterated her earlier position that in law any payment made in excess of the insured amount is dependent upon dividends declared from the proceeds or disposal of the defunct bank’s assets. She maintained that all deposits (both insured and excess) would have to be settled in full first before other creditors (including judgment creditors) can be considered. That this state of law was communicated to the Appellant (see page 15 of the Record of Appeal). This means that the Appellant is aware that the deposit liabilities of the Bank (Allied Bank in liquidation) have not been fully settled before his.
Now, I have endeavoured to consider in full the submissions of counsel on issues one and two as above to see quickly where the imaginary scale of justice tilts in this matter and it is obviously in favour of the Respondent. See Magaji v. Odofin (1978) 4 SC 91 and Odofin v. Ayoola (1994) NSCC 711 for the following reasons:-
Firstly, the Appellant did not deem it proper or appropriate to file a Reply Brief in response to the many new issues raised in the Respondent’s Brief of Argument which I have painstakingly considered fully above. It is now trite where an Appellant fails to file a Reply brief as in this appeal, in my view, where one is necessary the Appellant is deemed to have conceded all the new points or issues arising from the Respondent’s Brief. See Okoye & Drs v. Nigerian Construction and Furniture Co. Ltd. (1991) 6 NWLR (pt.199) 501. Oran v. Nyam (1992) 1 NWLR (Pt.217) 279, Popoola & Ors v. Adeyemo & Anr (1992) 8 NWLR (pt 275) 1. Shuaibu v Alhaji Maihodu (1993) 3 NWLR (pt 284) 748.
Secondly, the Appellant counsel did not consider the Rule in Akpan case (supra) where the Supreme Court held that:-
“under the law of estoppel per rem judicatam parties include not only the parties named on the writ but also their privies.”
The Respondent therefore being a privy of Allied Bank of Nigeria Plc, as argued by the Respondent’s Learned Counsel and conceded by the Appellant by suing the Respondent to the Court below leading to the Ruling appealed against is bound by the judgment entered in Suit No. 1/135/97 I hold the view, therefore that by filing the said originating summons at the court below it is an attempt to relitigate the matter all over again. There must be an end to litigation.
In consequence I resolve issue one in favour of the Respondent and against the Appellant.
On issue two I agree with the Respondent’s Counsel that the Appellant’s constitutional right as entrenched in Section 6 (6) (b) and Section 251 (1) (d) of the 1999 Constitution is to empower any superior court recognized by the constitution, including the court below, subject to the competency of the court in question(s) brought by persons, corporate or otherwise, before it. I am of the firm view, the court below is not competent to read judicate on a matter already adjudicated upon by a court of concurrent jurisdiction which the court below is with the State High Court, In the circumstances the plea of res judicata does concludes the Appellant’s originating summons dated 7/11/01 as it is of no moment before the court below.
I could justifiably have ended this judgment at this juncture, but It is an opportunity for me to elucidate and explain this very important and crucial equitable concept or doctnne of res judicata as it affects civil as well as criminal litigations in our jurisprudence or adjudication system in this country.
The Learned Authors of Black’s Law Dictionary Eighth Edition at page 1336 defines the tern), ‘res judiciata’ otherwise fully known as res judicata pro veritate accipitur (meaning in Latin “a thing adjudicated is received as the truth) as follows:-
“An issue that has been definitively settled by judicial decision or judgment is an affirmative defence barring the same parties from litigating a second law suit on the same claim or any other claim arising from the same transaction or series of transactions and that could have been – but was not raised in the first suit (Emphasis mine)
From the above decitation three essential elements are involved in the plea. They are:-
(1) An earlier decision on the issue
(2) A final judgment on thc merit
(3) The involvement of the same parties or partics in privity with the original parties.
Next point is; what are the effects of a successful plea of the doctrine? They are first of all, it has the effect of fore closing or concluding any litigation of matters that never have been litigated, because of the determination that they should have been advanced in the earlier suit.
Secondly, the effect or foreclosing relitigation of the matters that have once been litigated and decided upon
Please note, the first of these elements that is, preclusion of matters that were never litigated goes under the name or term “true res judicata or the name and style “merger and bar”. The second clement, that is the preclusion of matters that have once been decided is usually called “collateral estoppel.”
The two combined, depending on the meaning or rationale of it, is termed ‘res judicata’ for short or fully as afore said res judicata proveritate accipitur, as translated earlier from Latin to mean “a thing adjudicated is received as the truth. (Emphasis mine)
Another point it behooves me to elaborate upon is that it (the plea) must be specifically pleaded or deposed to in the supporting affidavit raising the defence by the party who want to invoke it. Otherwise it goes to no issue. See Chukwurah v. Ofochebe (1972) 12 SC 189, Owoniyi v. Omotosho (1961) All NLR 304.
In Kwasi Agvako v. Nazir Zok & Co, (1941) 10 WACA 277. it is held that estoppel per res judicata should be pleaded but if it is obvious it will succeed in concluding a matter although not pleaded.
It is essential to conclude this analysis of the plea of res judicata by stating that the burden is on the party who sets up the defence to sustain the plea conclusively. If the plea is established, such previous judgment is conclusive and it stops the plaintiff from any claim contrary to the decision of the previous decision. See Oshodi v. Eyifunmi (2000) 13 NWLR (pt. 684) 28.
In the final analysis, I dismiss this appeal as unmeritorious. I assess the costs of the appeal at N4,000.00 against the Appellant and in favour of the Respondent.
Other Citations: (2007)LCN/2456(CA)
