Jibril G. Yakubu V. Ajaokuta Steel Company Limited & Anor. (2009)
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JIMI OLUKAYODE BADA, J.C.A.
This is an appeal against the Judgment of the Federal High Court Abuja Division delivered on the 3rd day of May 2006 In Suit No: FHC/ABJ/CS/331/2005 – JIBRIL G. YAKUBU VS. (1) AJAOKUTA STEEL COMPANY LIMITED (2) THE HON. MINISTER OF POWER & STEEL
The Plaintiff/Appellant in the Court below had by a Writ of Summons claimed for the following reliefs:-
“(1) A declaration that since the Plaintiff’s appointment was terminated for “service no longer required”, on the 9th May 1989 and the 1st Defendant admitted on oath at the High Court of Justice at Ajaokuta on the 26th day of October 1995 in case No. KGS/AJ/10/93 that “service no longer required” is not among misconducts in her staff conditions of service that would earn an officer a termination, the 1st Defendant has tacitly withdrawn the Plaintiff’s termination of appointment as the same termination of appointment was for “service no longer required”,
(2) A declaration that since the 1st Defendant admitted on oath on 26/10/95 at the High Court of Justice at Ajaokuta in case No. KGS/AJ/10/93 that “termination of appointment” is not one of the conditions in her pension scheme under which pension are payable, such admission was a withdrawal of the 1st Defendant’s intention to put the Plaintiff on a future and undetermined pension consequent upon the Plaintiffs termination of appointment by the 1st Defendant on 9/5/89.
(3) A declaration that the 1st Defendant misled the Court of Appeal in appeal No. CA/A/51/98 in July 2001 when it falsely claimed before that Court that the Plaintiff has been receiving his pension ever before his termination of his appointment was declared unlawful by the High Court of Ajaokuta on 26/10/95. Whereas no such pension has ever been paid to the Plaintiff by the 1st Defendant as is quite apparent in the 1st Defendant’s letter No. ASCL/MD/CCSLA/468/VOL. 11/232 dated 15/10/2003 to the Hon. Commissioner, Public Complaints Commission, Lokoja, indicating her consistent intention to commence payment of pension to the Plaintiff when he clocks 45 years of age. And, in another letter No. ASCL/MD/CSLA/648 VOL. II/248 dated 29th April 2005, addressed to the Plaintiff’s Counsel requesting the Counsel to advise the Plaintiff to come and do some clearance so that the 1st Defendant can put the Plaintiff’s name on her Pension List.
(4) A declaration that the Public Complaints Commission relying on her enabling Laws of the Federation, has the right to have investigated into this matter, and concluded and recommended to the 1st and 2nd Defendants in a letter No KG/PCC/COM/292/03/50 that the Plaintiff is still a bonafide staff of the 1st Defendant as the 1st Defendant did not appeal against the Judgment of the High Court of Ajaokuta which declared the termination of the Plaintiff’s appointment as unlawful on 26/10/95.
(5) A declaration that the refusal of the 2nd Defendant, as a statutory supervisor of the 1st Defendant to call the Plaintiff to office as strongly and repeatedly recommended by the Public Complaints Commission vide letter No. DG/PCC/COM/292/03/84 of 30th September 2004 is an abuse of administrative process and a tacit approval of the 2nd Defendant over 1st Defendant’s recalcitrant posture to address the destruction of the carrier life of the Plaintiff.
(6) An order of the Honourable Court directing the 1st and 2nd Defendants to jointly and severally pay to the Plaintiff the sum of N250,000,000.00 (Two Hundred and Fifty Million Naira) as damages for:-
(a) The 1st Defendant to have refused and ignored to lawfully retire or terminate the Plaintiff’s appointment from her services up till date.
(b) The 1st Defendant to have misled Court of Appeal, in Abuja in July 2001 to believe that the Plaintiff was making a mockery of, and abusing the judicial process because the Plaintiff has been receiving his pensions.
(c) The 1st Defendant to have disregarded and ignored the Public Complaints Commission to return the Plaintiff to status quo in September 2001 thereby violating the enabling Laws of the Federation that established that commission.
(d) The 1st Defendant to have engaged in all sorts of falsehood which effects have culminated in the destruction of the Plaintiff’s carrier life as he is neither a retiree, a terminated officer, a pensioner nor dismissed from the services of the 1st Defendant.
(e) The 1st and 2nd Defendants to have subjected the Plaintiff, wife, aged parents and nine children to severe financial hardship and social embarrassment since 9/5/89 when his appointment was unlawfully terminated.
(7) Any other order or orders that this Court may deem fit in the interest of Justice.”
At the conclusion of the trial, the learned trial Judge struck out the Plaintiff’s Suit.
The Plaintiff now Appellant being dissatisfied with the Judgment of the lower Court now appealed to this Court.
The learned Counsel for the Appellant formulated three issues for determination as follows:-
(1) Whether the Hon. Judge of the Federal High Court has not erred in law and misdirected himself on the facts when he held that the cause of action and subject matter in the earlier suit No. KGS/AJ/10/93 i.e. Jibril G. Yakubu vs. Ajaokuta Steel Company Limited and Suit No. FHC/ABJ/CS/331/2005 i.e. Jibril G. Yakubu vs. Ajaokuta Steel Company Limited and The Hon. Minister of Power and Steel, are the same.
(2) Whether the trial Judge has not erred in law when he upheld the plea of res judicata when the parties to case No. KGS/AJ/10/93 and case No. – FHC/ABJ/C5/331/2005 is not the same.
(3) Whether the trial Judge has not erred in law when he upheld the plea of res judicata, when he held that the present action amounts to re-litigation which had earlier been the subject matter of litigation between the parties.
On 7/7/08 this Court made an order setting down this suit for hearing on the Appellant’s brief of argument alone in default of the Respondent filing his brief of argument within time as allowed by the rules. Also on 15/1/09 when this case came up and was adjourned till 7/4/09 for hearing, Counsel for the Respondents was present in Court.
In the circumstance, this appeal was heard on the Appellant’s brief of argument alone.
At the hearing, the learned Counsel for the Appellant adopted and relied on the Appellant’s brief of argument in urging that the appeal should be allowed.
Issues 1, 2, & 3 (Taken Together)
Learned Counsel for the Appellant submitted that doctrine of the plea of estoppel per rem judicatam does not apply in this case as the issues and the subject matter in both previous and present actions are not the same. He went further that to determine whether the plea of estoppel per rem judicatam applies the Court is permitted to study the pleadings, the proceedings and the Judgment in the previous suit. The Court may also examine the reasons for the Judgment and other relevant facts to discover what in fact was in issue in the previous proceedings. He relied on the case of:-
Okukuje vs. Odjenima Akwido (2001) 5 NSCQR Page 204 at 244.
It was contended on behalf of the Appellant that the cause of action in Suit No. KGS/AJ/10/93, was in respect of termination of his appointment on 9/5/89 by the 1st Respondent which the Ajaokuta High Court declared unlawful on the 26/10/95. The termination of appointment having been declared unlawful by a competent Court and since there has been no appeal against the Judgment, the issue of termination cannot therefore be revisited and in effect Suit No. KGS/AJ/10/93 cannot be re-opened.
It was also submitted on behalf of the Appellant that the cause of action in Suit No. KGS/AJ/10/93 which hinged on the employee/employer relationship is quite different from the cause of action in Suit No. FHC/ABJ/CS/331/05 which is anchored on the Appellant’s Civil and Constitutional position within the society.
It was also submitted on behalf of the Appellant that the first case with Suit No. KGS/AJ/10/93 was between Jibril Gabriel Yakubu vs. the 1st Respondent – the Ajaokuta Steel Company Limited whiles the second case with Suit No. FHC/ABJ/CS/331/05 was between Jibril G. Yakubu vs. Ajaokuta Steel Company Limited and The Honourable Minister of Power and Steel. In the present case he stated that there are two juristic bodies as co-defendants, he therefore submitted that the parties are not the same, He relied on the following cases:-
– Agbada vs. Amadi (1998) 61 LRCN Pages 4493 at 4517 Ratio II;
– Oshodi vs. Egifunmi (2000) SCNCR (2) Page 320 at 339 ratio 6;
– Mackson Ikemi & Another VS. Efamo & Others (2001) 6 NSCQR Page 456 at 464 – 465 ratios 1, 2, & 3.
Learned Counsel for the Appellant also submitted that the case No. FHC/ABJ/CS/33/05 is not an abuse of Court process as it does not amount to multiplicity of actions on the same matter. He relied on the following cases’-
– Okafor vs. Attorney General (1991) 7 (Part II) SCNJ Page 345 at 363 ratios 8, 9 & 10;
– Okorodudu vs. Okoromadu (1977) 3 SC Page 21.
I will start the analysis of the three issues under consideration in this appeal by agreeing with the submission of learned Counsel for the Appellant that the termination of appointment of the Appellant having been declared unlawful by a Court of competent jurisdiction in Suit No. KGS/AJ/10/93 and since there has been no appeal against the Judgment, the issue of termination cannot therefore be re-opened.
It is a rule of public policy that there should be an end to litigation and also that nobody should be sued twice on the same ground, See the following cases:-
– Joe Nwaru vs. Commissioner of Police, Kano & Another (1994) 5 NWLR Part 347 Page 722;
– Nnah George Onyeabuchi vs. Independent National Electoral Commission & 4 Others (2002) NWLR Part 103 Page 453.
It has been contended on behalf of the Appellant that the doctrine of Estoppel per rem judicatam does not apply in this case as the issues and the subject matters in both previous and present action are not the same.
Estoppel per rem judicatam 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 same issue comes directly in question in subsequent proceedings between the parties or their privies, See – Osunrinde vs. Ajamogun (1992) 6 NWLR Part 246 Page 156.
For the doctrine of estoppel per rem judicatam to apply, it must be shown that:-
(a) The parties
(b) The issues and
(c) The subject matter
In the previous action are the same as those in the action in which the plea is raised. Once these ingredients of res judicata are established, the previous Judgment estops the Plaintiff from making any claim contrary to the decision in the previous case. See the following cases:-
– Ezeanya vs. Okeke (1995) NWLR Part 388 Page 142;
– Odjewedje vs. Echanokpe (1987) 1 NWLR Part 57 at Page 633;
– Dokubo vs. Omoni (1999) 8 NWLR Part 616 Page 647.
Consequently, where an issue has been canvassed and adjudicated upon by a Court of competent jurisdiction between two parties, it is binding in a subsequent suit between the same parties or their privies. The parties are therefore not permitted to begin fresh litigation on the same course of action which had been decided by a Court of competent jurisdiction whose decision is final. If this is allowed, litigation will have no end except when the legal ingenuity is exhausted.
In the appeal under consideration it was contended on behalf of the Appellant that the cause of action and parties in Suit No. KGS/AJ/10/93 is quite different from that of Suit No. FHC/ABJ/CS/331/05.
A close perusal of the pleadings of the Appellant at the trial Court showed that in FHC/ABJ/CS/331/05. Reliefs Numbers 1, 2, 4 and 5 were decided upon one way or the other in Suit No, KGS/AJ/10/93.
As far as relief No.3 is concerned, it is my view that the Appellant should have appealed against the previous Judgment of the Court of Appeal to the Supreme Court instead of going to the High Court to ask for that relief.
Concerning relief No.6, it is my view that the Appellant due to inadvertence or negligence failed to put forward this part of his case which is a claim for damages in his earlier suit in KGS/AJ/10/93. In my humble view the Appellant is not permitted to nibble at his claims breaking them now and taking them piece meal. He is expected to bring all his claims belonging to the same subject matter at once and at the same time. If he chooses to bring them piecemeal, he may be met by the doctrine of res Judicata. See the case of:-
– Chief Francis Njokanma & 4 Others vs. Prince Thomas Mowete & Others (2002) FWLR Page 1536 at 1552 Paragraphs B – D.
On the issue of parties, Suit No. KGS/AJ/10/93 was between Jibril Gabriel Yakubu VS. The Ajaokuta Steel Company Ltd whereas Suit No. FHC/ABJ/CS 331/05 is between Jibril G. Yakubu vs. Ajaokuta Steel Company Limited and The Honourable Minister of Power and Steel. The learned Counsel for the Appellant contended that the parties are different in the cases as listed above but I do not agree with him because the Hon. Minister for Power and Steel joined as 2nd Defendant/Respondent is a privy to the Ajaokuta Steel Company limited i.e, the 1st Respondent, the parties are therefore constructively the same.
In view of the foregoing, the Doctrine of Estoppel per rem judicatam is applicable to this case under consideration.
The learned Counsel for the Appellant also contended that Suit No. FHC/ABJ/CS/331/05 is not an abuse of Court process as it does not amount to multiplicity of action on the same matter.
The pertinent question is – What is an abuse of Court Process?
Abuse of Court Process means that the process of the Court has not been used bonafide and properly. It is a term generally applied to a proceeding which is wanting in bona fide and is frivolous, vexatious or oppressive. It is the improper use of legal process. In other words, when a party improperly uses the issue of judicial process to the irritation and annoyance of his opponent, such as instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues.
Although different suits can emanate from the same subject matter but with different rights and reliefs: – See the case:-
– Ogoejeofo vs. Ogoejeofo (2006) 3 NWLR Part 966 at Page 205.
In the instant appeal under consideration, it has been shown that the parties, the issues and subject matters are the same as that in the previous suit therefore this Suit No FHC/ABJ/CS/331/05 is an abuse of Court process.
In view of all I have analysed in this appeal issues No.1, 2 and 3 are hereby resolved against the Appellant and in favour of the Respondents.
In the result, the decision of the trial Court striking out the Plaintiff/Appellant’s case is hereby affirmed.
Consequently, this appeal lacks merit and it is accordingly dismissed.
Other Citations: (2009)LCN/3357(CA)
