Justice O. Thomas (Rtd) & Anor. V. Omoniyi Aderinokun (Suing by His Attorney) & Anor. (2008)

LawGlobal-Hub Lead Judgment Report

ISTIFANUS THOMAS, J.C.A.

At the Lower Court, the present respondent was the applicant in which he filed an originating summons against the present appellants seeking the following reliefs:

1. A declaration that having regard to the Infants Law of Oyo State, upon the death of MRS OLUTOBI ARAMIDE ADERINOKUN, the mother of MAYOWA and TEMILOLA ADERINOKUN, the plaintiff being their natural father, is by operation of Law, the guardian of the said children TEMILOLA ADERINOKUN, the plaintiff being their natural father, is by operation of Law, the guardian of the said children.
2. Order directing the respondents forth with to deliver up to the applicant by himself or through his Attorney, servant or agent, the actual custody of the above named children namely MAYOWA ADERINOKUN DOB 22/12/95 and TEMILOLA ADERINOKUN DOB 7/1/98.
3. Order that the International Travelling Passports of the said children be delivered to the applicant or his Attorney, servant or agent.
4. Order that the children being American citizens by birth be returned to the jurisdiction of the State of New York in the United States of America.
5. Such further or other orders as this Honourable Court may seen just and proper in the circumstance.

When the respondents, but now appellants were served with the originating summons, they filed a notice of Preliminary Objection, on the ground, that, similar application in an Ex-parte originating summons in Suit No. M/421/2001, was earlier granted on 7-10-2001 in their favour, which according to the appellants, is still live and binding and that, the Lower Court, had no jurisdiction to sit on appeal over the earlier decision of a court of co-ordinate jurisdiction.

The learned trial court judge coram Mashod A.A. Abass (J), considered the preliminary objection and the opposition of the parties, and on 08-01-2003, delivered a ruling dismissing the preliminary objection on the basis that suit No. M/421/2001 delivered on 7-10-2001 could not sustain a plea of res judicata suice the parties in the suit were not the same parties in suit No. M/330/1001 which was before the Lower Court. In other words, the applicant now respondent (in originating summon No. M/330/1001) was not a party in the other ex-parte originating summons No. M/421/2001. Based on the Lower Court’s decision, dismissing the preliminary objection, appellants have appealed on twelve (12) grounds of appeal.

It is however, important to know the relevant facts, that brought about the earlier decision in Ex-parte originating summons on which the appellants raised their preliminary objection in suit No. M/330/2002. It is also, the main ground in their briefs of argument formulated in their four issues for determination of this appeal. The relevant fact is at follows:-

The present respondent got married to OLUTOBI ARAMIDE who then was daughter of the present appellants. The respondent and his wife were blessed with the two infants. Disaster struck when the respondent’s wife was painfully murdered by armed robbers in Lagos. Before the death of respondent’s wife, there was a mutual agreement between the appellants and their son-in-law and their late daughter, whereby the two infants were moved from their residence of American citizenship to reside with their maternal grand parents, namely the appellants. The infants were enrolled into LIFE FORTE NURSERY AND PRIMARY SCHOOL in Ibadan and according to the appellants, the infants are now in the American Christian Academy in Ibadan.

When the death of the mother of the infants was committed, the respondent, per his affidavit evidence in Paragraph 24, was already in United States of America. At this point, it appears, the loss of appellants’ daughter, being also a loss to the respondent and the innocent infants, mistrust, and suspicion emerged. These mistrusts and suspicion are contained in the totality of 4S paragraph affidavit – evidence filed on 25-1- 2001, deposed to by the 2nd appellant in support of their Ex-parte Originating Summons in Suit No. M/ 421/2001, see Paragraphs 26-27 of the record. Similar mistrust and suspicion are also contained in the 68 paragraph affidavit evidence deposed to by the applicant/respondent in support of his Originating Summons in Suit No. M/330/2003 – See paragraphs.3-7 of the record of appeal. From the parties mistrusts and suspicions, this Court understands the deep sentiments and worries of the parties respectively. The present appellants had already received guardianship by the former trial Court’s decision delivered by Ige (J) on 7- 10-2001 as shown in Exhibit A2 in Suit No. M/421/2001 at Ibadan High Court. It is contained at page 43 of the record.

Exhibit A2 reads as follows:-

1. That there exists necessary circumstances warranting the appointment of the applicants as the guardians of the named infants.
2. That the applicants be appointed as the guardians for the above named infants.
3. That the custody of the above named infants be awarded to the applicants.

The guardians now appointed shall act always in the best interest and welfare of the said infants that is :

1. MAYOWA DEMI ADERINOKUN (F). 6 YEARS.
2. TEMILOLA BRIANNA ADERINOKUN (F) 3 YEARS.

ISSUED AT IBADAN Under the seal of the Court and the Hand of the Presiding Judge this 17th day of October, 2001.

Now coming to the main issues before this Court, appellant’s brief of argument was dully filed on 2-10-2003 in which they have raised four (4) issues for determination as follows:-

1. Whether the applicant/respondent can apply to the Lower Court for reliefs already granted by that Court to the respondents/appellants and whether that court is competent to entertain the application. (Grounds 1, 2 and 3).
2. Whether the learned trial Judge misdirected himself and thereby came to a wrong conclusion when he held that FORM 58 “is being used as a shield to deprive a necessary party to an action from being heard” when FORM 58 used in Exhibit A2 is in strict compliance with the High Court Civil Procedure Rules of Oyo State. (Grounds 4, 5, 7 and 9).
3. Whether in view of the Court’s finding that Exhibit A2 is a final order and the subject matter of this action and Exhibit A2 are the same, the learned trial Judge was right to have dismissed the Preliminary objection and assumed jurisdiction. (Grounds 6, 7, 8 and 12).
4. Whether or not the learned trial Judge could sit on appeal on a subsisting order of a Court of co-ordinate jurisdiction. (Grounds 6, 10, 11 and 12.)

In response, the respondent filed his written brief on 19-5-04 from which he raised Notice of Preliminary objection in respect of grounds 4, 5, 6 and 7 from which the appellants formulated issue NO.2 for determination.

I will later consider the respondent’s Preliminary objection in this judgment. The respondent has formulated two (2) in alternative order, issues for determination and they read as follows:

1. Whether Suit No. M/330/2002 commenced by the Respondent here in before the lower Court is caught by the doctrine of Estoppel per Rem Judicata in view of the decision contained in the Applicants Ex-parte order in Suit No M/421/2001.

OR

Whether an exparte order or decision obtained in an Ex-parte Originating Summons (as in Suit No. M/421/2001) could sustain an Estoppel rem per Judicata objection to the subsequent Originating Summons action which is on notice (as in Suit M/330/2002).

The respondent’s Notice of Preliminary objection in respect of appellants’ issue NO.2, is that, the sole issue for determination at the Lower Court, was whether the Lower Court could entertain the reliefs of the respondent as contained in his Originating Summons in Suit No. M/330/2002 having regards to the enrolment of Ex-parte order that was attached as Exhibit A2 to the appellants Notice of Preliminary objection, against the respondent’s Suit No. M/330/2002. Learned counsel for the respondent has submitted that, since the Lower Court was not sitting as an appellate Court over the proprietary or otherwise of the grant of the exparte order in Exhibit A2, the appellants’ grounds 4, 5 and 7 from which they formulated issue 2 do not reflect on the facts and law in dispute in the instant appeal, and that therefore the said appellant’s issue 2 has not raised any matter for determination. Counsel has urged this Court to strike out appellants issue No 2 and referred to the case of AFRICAN PETROLEUM LTD V. UOWODUN 48 (1991) 8 NWLR (Pt. 210) 391.

In response, the appellants having been dully served with the respondent’s brief containing the Preliminary objection they applied for extension of time to file reply brief, which was dully granted and filed on 2-11-2006. In their reply brief, appellants have referred to this Court’s Order 3 r 15 of 2002 and the case of NEPA Vs, ANGO (2001) 15 NWLR (Pt. 737) 627, 645 in which it is the position of law that a preliminary objection can only be taken against the hearing of an appeal and not against one or more grounds of appeal.

There is no doubt that, the respondent’s Notice of Preliminary objection, is grounded on appellants grounds 4, 5 and 7 of the appellants Notice of Appeal. But the position of law in raising Notice of Preliminary objection in accordance with Order 3 r. 15 of the Court of Appeal Rules, 2002 is that such preliminary objection can only be made against the hearing of an appeal and not just against one or more other grounds of appeal which are not capable of disturbing the hearing of the appeal. A competent preliminary objection should show the capacity of ending the matter on appeal if it is successful. To qualify for preliminary objection there should be serious argument on point of law which can be determined in conclusion as the end of litigation in the matter before the Court. It is the decision of this Court in NEPA VS. ANGO (2001) (supra) at page 645 that “In other words the purpose of Preliminary objection to an appeal is to contend that the appeal is in competent or fundamentally defective, which if it succeeds, would put an end to the appeal”.

In the instant appeal, respondents preliminary objection is not on the request that the Court should declare the appeal incompetent, but to hold that grounds 4, 5 and 7 including appellants’ issue NO.2 to be strike out. The respondent’s objection is hereby rejected being overruled. I am of the considered view that the appellants’ issue NO.2 is competent having been distilled from their grounds 4, 5 and 7.

Now having resolved the preliminary objection I have to pronounce on the issue of proliferation of issues distilled from the grounds of appeal relied and argued upon. In the instant appeal, appellants raised four (4) issues from this 12 grounds of appeal. Be that as it may, the appellants used ground No.6 in issues NO. 3 and 4. In the same manner, ground 7 has been distilled in formulating issues NO. 2 and 3; and not only that ground 12 has been distilled in issues No.3 and 4. From the above facts in relation to grounds 6, 7 and 12, it is clear that the appellants used two issues each in respect of each of grounds 6, 7 and 12 respectively. The position of the appellate Courts is that, it is needless formulating two issues from a single ground of appeal; See PURIFICATION TECH LTD VS. I.S.B.P. CORP (2001) 10 NWLR (pt 720), 86, 91 Para. E-G; CHITER IND. LTD V. O.B.I (NIG) LTD. (2005) 14 NWLR (Pt 945) 392: BABALOLA V. OBA OKU – OTE (2005) 8 NWLR (Pt 927) 386; FAYEMI V. L.G.S.C. OYO STATE (2005) 6 NWLR (Pt 921) 280. The appellants issues 3 and 4 are mere multiplicity and proliferation of issues from three separate grounds of appeal and are hereby strike out. I will consider appellants’ issues one and two along with respondent’s single issue NO.1 for determination.

The appellants’ fulcrum in their issue 1, is that, in the earlier application in suit No M/421/2001, which was in their favour, was a final decision, and that therefore, the latter trial court’s ruling in originating summons in suit No M/330/2002, is functus officio and can not revisit the judgment by giving a second bite. Counsel for the appellants has submitted that, the learned trial judge had erred in law, by dismissing their preliminary objection. That the trial judge had also erred by assuming that he had the jurisdiction to hear the respondent’s suit by giving a second judgment. Learned Counsel referred to the case of ALEX ONWUCHEKWA VS. CO-OPERATIVE COMMERCE BANK (1999) 5 NWLR (PT 603) 409, 415. AND BLACKS LAW DICTIONARY 5TH EDITION PAGE 606. Appellants still contend that the present responded should have appealed against the earlier decision in M/421/2001 being a final decision, and not to reopen the case; that an order of court is presumed to be correct until it is set aside by an appellate court, and relied in the cases of AUYASBUNAM VS. ATT/GENERAL ANAMBRA STATE (2001) 6 NWLR (PT 710) 532, 540; ALHAJI A. AHMED V. A.I.B LTD (2001) 10 NWLR (PT 721) 391, 405; SANUSI VS. AYOOLA (1002) 9 NWLR (PT 265) 275.

In concluding this issue, appellants have contended that the trial judge should have declined jurisdiction by allowing their earlier Preliminary objection, and have urged this court to decide this issue No 1 in their favour.

In appellants issue No 2, they have submitted that, it was wrong for the lower court’s holding that the order in Exhibit A2 denied the respondent the right to be heard on an issue affecting his interest. In other words, the trial court held that Form 58 of the High Court (Civil Procedure) Rules of Oyo State is being used as a shield to deprive a necessary party to an action, from being heard before a decision concerning his interest could be heard. On the trial court’s holding, appellants are of the view that there was no contention between them and the present respondent, and that giving an opportunity of being heard to the present respondent could not arise before determining the application; because it affected the guardianship of infants. Appellants further contended that, the trial court judge failed to consider the procedural steps used in Exhibits A2 by applying Form 52 of the afore said High Court Civil Procedure Rules of Oyo State. That rules of court are made to regulate proceedings by which reliefs sought are granted or refused. In conclusion, appellants have repeated their earlier arguments in issue No 1 and urged this court to allow the appeal in their favour.

The respondents’ alternative issue are identical and one is sufficient to contend the appellants two issues.

The respondent’s contention on the appellants’ preliminary objection at the lower court, was predicated on their sole ground that they had obtained an Ex-parte order in suit No M/421/2001), who were the only applicants and no other party or respondent.

Learned counsel for the respondent has submitted that the sole party in the Ex-parte originating summons was specifically (1) MRS. OLUFEMI OMOLOLU THOMAS AND (2) HON, JUSTICE OMOLOLU THOMAS (RTD) who were the sole two adults without any defendant or other party. Counsel then submits that for a defence of Estoppel per rem judicata or inter partes to succeed, definite preconditions ought to be established by the party relying on it. Counsel relied on the cases of OBASI BROTHERS MECHANIC LTD VS. M.B.A.S. LTD (2001) FWLR (PT 40) 1647. 1649; OSHODI VS. EYIFUNMI (2000) FWLR (PT 8 1271, 1323; OKE V. ATOLOYE (1985) FWLR (Pt. 15) 241.

Counsel further contends that in order to determine whether the plea of estoppels per res judicata subsists or whether the parties and the subject matter of the two actions are the same, the trial court is entitled to have jurisdiction to study the pleadings, the previous and trial courts’ proceedings before making its decision.

Learned counsel further referred this court to the reliefs of the appellants in their Ex-parte originating summon in M/421/2001 as contained in Exhibit A2; and the respondent’s reliefs in his originating summons in M/330/2002 and then submitted that a plea of estoppels per rem judicata in the appellants’ previous suit are miles apart from the present suit. In effect, counsel contends that the two originating summons are not the same. That the previous suit had no named defendant or respondent being an Ex-parte, whereas the respondent’s originating summons had the appellants as respondents, and the present respondent was the applicant. Learned Counsel however has conceded that the res in the two suits are the 2 infants. Respondent has submitted that the decision relied upon in M/421/2001 was never a valid subsisting final judgment nor was it on the merit because issues were not joined between the appellants and the respondent who was never made a party. It was determined solely on the appellants’ affidavit and exhibits, all determined in a sole appearance and on solo proceedings. Learned counsel still submitted that the only relevant issue that has arisen is whether suit No M/421/2001 could be said to have been determined on merit between the appellants and the instant respondent who is the only biological father of the infants to sustain a plea of estoppels per rem judicata, counsel referred to the decision of this court in OBASI BROTHERS V. MBAS KLTD (SUPRA), and SECTION 54 OF THE EVIDENCE ACT and urged this court to dismiss the appeal in their favour.

I have carefully considered the appellants’ reply brief in which I dealt with respondents’ preliminary objection and overruled same.

After a careful consideration of the parties respective briefs and arguments, I have found that the main complaint of the appellants is that the trial lower court had clearly stated that it had the requisite jurisdiction to hear the present respondents originating summons in suit No M/330/2002 in which he was seeking similar reliefs which Ige (J) had given to the appellants in M/421/2001. Before this appellate court, the appellants are insisting that the lower court (Coram-Abbas J) had not only lack of jurisdiction, but was sitting on appeal over the decision of another court of co-ordinate jurisdiction which had not been set aside. In my considered opinion, the appellants’ submission is misconceived, because, their ex-parte originating summons in Exhibit A2 was a one party application, namely there was no defendant or respondent in the matter. On the other side, the originating summons in suit M/330/2002 was between the present respondent and the two appellants. It is therefore a patent misconception to say that the lower court was sitting on appeal over M/421/2001 because, the present respondent, did not file his suit as an appellant, hence it was a new originating summons which was on notice and served on the appellants who then were respondents.

Secondly, for the appellants to succeed in their defence of estoppels per rem judicatum, they had to establish the specific pre-conditions which are as follows:-

(a) The parties or their privies are the same in both the previous and latter suits are the same. In other words, suits M/421/2001 and M/330/2002 should have contained the same parties. The appellants have failed pre-condition (a) as parties are not same.

(b) The claim or reliefs or the issue in dispute in the previous and latter suits must be the same. In the instant appeal there is a world of deference in claim No M/421/2001 with the claim in M/330/2002. The appellants’ reliefs in M/421/2001 was specifically to appoint the appellants as guardians of the two infants. This was what they prayed for and this was granted as contained in Exhibit A2. On the other hand, the respondent’s reliefs he applied for in M/330/2002 were (i) for a declaration that he was the natural father of the two infants by operation of law; (ii) order to direct the appellants to deliver the custody of the two infants to him. (iii) to deliver from the appellants, the international Passports of the children to him; (iv) that the two infants be returned to their country of birth in view of their citizenship of United States of America. From the above stated reliefs in suit M/330/2002, the appellants test for estoppels per rem judictum has also failed. The claim or reliefs are not identical with the previous case in M/421/2001.

(c) The res, that is the subject matter of the litigation in the two cases must be the same. In the instant matter, there is no dispute between the parties on the fact that the two infants are the main subject matter. Be that as it may, the respondent in the instant suit M/330/2002 had raise other res, i.e. international passports, and rights of citizenship of the two infants. It is therefore clear that the res are not the same in M/421/2001 and M/330/2002. In other word, the appellants have also woefully failed to test the denfence of res-judicata.

(d) The court that gave the previous decision relied upon, must be a court of competent jurisdiction. In the instant matter, there is no dispute that the court in M/421/2001 was of competent jurisdiction.

From the above findings in respect of the appellants’ misconception that they had a defence of res-judicata in respect of their ex-parte originating summons in M/421/2001, I am of the irresistible view that, the conditions precedent to successful plea has not been established. All the conditions listed above, must be presented in the previous and latter suits. See Supreme Court decision in OKPOSIN VS. ASSAM (2005) 14 NWLR (PT 945) 495; ADEBO VS. OMISOLA (2005) 2 NWLR (PT 909) 149; IDOGIERHIE V. DARE II (2005) 17 NWLR (PT 953) OBASI BROTHERS MECH. LTD VS. M.B.A.S. LTD. (SUPRA).

On the appellants’ contention that the lower court, had no right to hear respondent’s suit M/330/2002. on the ground that the court had no jurisdiction, is also a total misconception. Learned counsel for the appellants should have known that, the trial court, was at liberty (as submitted by the respondent) to study the pleadings if any in suits M/421/2001and M/330/2002 and know the proceedings and the previous judgment. In fact, it was the same appellants who wanted to defend the instant suit on the ground of res-judicata, and they had to tender their claim in its totality including Exhibit 7A2. There was no other way for the trial judge to consider their plea without considering the pleadings and proceedings in the previous and instant suits. It is therefore correct to say that, the trial court, was not sitting on appeal over a decision of a co-ordinate jurisdiction.

Section 54 of the Evidence Act in connection to plea of estoppels per rem judicata has clearly stated that every judgment is conclusive proof as against parties and privies of the facts directly in issue in the case actually decided by the court: and appearing from the judgment itself to be the ground on which it was based …”

I entirely agree with the submission of learned counsel for the respondent who said in their paragraph 7.2 of their brief that appellants ex-parte order in Exhibit A2 did not meet the requirements of section 54 of the Evidence Act because no facts directly in issue between the parties in originating Summons No M/330/220. It is therefore, unlawful, (as the learned trial judge in the instant appeal matter,) to use Exhibit A2 as a shield to prevent the respondent from instituting his claim in respect of his right to contest the custody of his children whose mother, albeit the deceased daughter of the appellants was no more alive. The ex-parte suit without a defendant or respondent can not be a final decision as it was incapable of determining any reasonable issue on merit. It was a solo application without an opposing party. The order in Exhibit A2 is of no relevance to any party except the appellants.

In conclusion, the trial lower court has inherent jurisdiction to hear the suit in M/330/2002, and this appeal being an interlocutory one, the appeal is unmeritorious and I dismiss the same in its entirety. Parties are to go back to the lower court who will determine on its merit. Sentiments should not be allowed to be cloud the relationships between the parents in law and their son in law.

I make no order on costs.

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Other Citations: (2008)LCN/2832(CA)