Nigergate Limited V. Niger State Government & Ors (2007)

LawGlobal-Hub Lead Judgment Report

OYEBISI FOLAYEMI OMOLEYE, J.C.A.

This is an appeal against the ruling of the High Court of Justice, Niger State per Hon. Justice F. L. Abubakar which was delivered on 27/9/05,

STATEMENT OF FACTS

The Appellant was awarded a contract by the 1st Respondent for the management of the Control Posts located at Jebba, Mokwa, Suleja and Wuse for the purpose of collecting taxes in respect of all livestock, grains produce and other goods passing through Niger State vide a contract agreement executed on 22/6/01. The contract was for a term of five years commencing from the 1st day of February, 2001 and terminating on the 31st day of January, 2005.

The 1st Respondent unilaterally terminated the agreement inter alia based on an alleged irregular remittance of the contractual monthly dues by the Appellant. As a result of this, the Appellant instituted a suit against the Respondents in the Niger State High Court on 7/5/2002 to enforce the terms of the agreement. The suit was dismissed for being unmeritorious. Dissatisfied with the judgment, the Appellant appealed against it to this Court. The appeal was allowed in a well-considered judgment of this Court which was delivered on the 29th day of June, 2004 restoring the Appellant to the management of the said Control Posts in accordance with the terms of the agreement by effluxion of time. I will in the course of this judgment state the full details of the specific reliefs sought by and granted to the Appellant by this Court in the said judgment.

On 24/11/2004, the Appellant instituted another action in the High Court of Niger State by way of Originating Summons for a declaration to continue to manage the Control Posts till the 31st day of January, 2008. In the interim, the Appellant sought and obtained an order of interlocutory injunction restraining the Respondents from taking over possession of the Control Posts. In the Originating Summons, the Appellant sought the following reliefs:

“1. A DECLARATION that the Plaintiff is entitled to performance of the contract as contained in the Agreement between the Plaintiff and the 1st Defendant dated 22nd June 2001, for a term of 5 years, which would expire or determine on 31st January 2008.

2. A DECLARTION that by 31st January2005 the Agreement between the Plaintiff and the 1st Defendant dated 22nd June 2001 would only have been performed for a period of 1(one) year 10 (ten) months.
3. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants by themselves, their servants, agents, and/or privies howsoever from disturbing the Plaintiff’s management and control of the Produce Control Posts located at Jebbo, Mokwo, Suleja and Wuse as particularized in the Agreement and for the purpose contained in the Agreement until the term of 5 years granted by the Agreement between the Plaintiff and the 1st Defendant dated 22nd June, 2001 would have-expired on 31st January 2008.”

The Respondents in response to the Appellant’s suit filed a Notice of Preliminary Objection on 11/5/2006 wherein they challenged the jurisdiction of the High Court of Niger State to hear and determine the issues and the prayers of the Appellant. The objection was predicted on the ground that the issues have been considered and finally determined by this Court in its earlier judgment of 29/6/04 and therefore caught by the doctrine of “res judicata” Both counsel made their submissions for and in opposition to the objection. The trial Court in its ruling delivered on 27/9/05 upheld the preliminary objection, declined jurisdiction to adjudicate upon the suit, vacated its earlier order of interlocutory injunction granted against the Respondents and dismissed the suit of the Appellant. Aggrieved by the ruling, the Appellant lodged this appeal to this Court challenging the propriety of same.

As stipulated in the relevant provisions of the Court of Appeal Rules, 2002, parties complied with the procedure of appeal. Briefs were filed and exchanged.

On 12/3/07 when the appeal was heard, learned counsel for the Appellant, Ms. Maureen Onyiuke adopted and relied on the Appellant’s brief of argument which was deemed filed on 10/7/06.

She urged the Court to allow the appeal and set aside the ruling of the trial Court. In the brief, the Appellant distilled three issues from the three grounds of appeal as contained in the Amended Notice of Appeal fried on 5/7/06. The three issues are as follows:

“1. Whether the Lower Court was right in pre-emtively holding that adjudicating on the issues for determination as contained in the Originating Summons would be tantamount to reviewing the decision of the Court of Appeal. (Ground 1).

2 Whether the Lower Court was right in declining jurisdiction to entertain the Appellant’s claim on the grounds that the issues submitted for determination by the Originating Summons had been decided upon by the Court of Appeal and was therefore caught up by the doctrine of res judicata. (Ground2)

3 Whether the Defence of res judicata can be properly raised by way of a preliminary objection without a supporting affidavit providing the factual basis for the plea. (Ground3)’

The Respondents’ brief of argument was deemed filed on 16/1/07. Learned counsel for the Respondents, Mr. Ola Olanipekun adopted the brief and urged the Court to dismiss the appeal. The Respondents submitted two issues for determination of the appeal.

These are:

“1. Whether the issues raised by Suit No. NSHC/MN/174/04 had been adjudicated upon by the Court of Appeal in Appeal No. CA/A/149/2002, and if so whether in the circumstances, the learned trial judge was right to have declined jurisdiction to entertain the Suit.

2. Whether the documents in the records before the lower Court were sufficient to decide one way or the other, the issue of Res judicata raised by the Respondents. ”

In my view, the issues as formulated by the parties properly cover and address the real compliant -in this -appeal. I will-however adopt the issues presented by the Appellant. Albeit, I will take issues 1 and 2 together because they are intertwined.

ISSUES 1 &. 2

“1. Whether the Lower Court was right in pre-emtively holding that adjudicating on the issues for determination as contained in the Originating Summons would be tantamount to reviewing the decision of the Court of Appeal (Ground 1).

2. Whether the Lower Court was right in declining jurisdiction to entertain the Appellant’s claim on the grounds that the issues submitted for determination by the Originating Summons had been decided upon by the Court of Appeal and was therefore caught up by the doctrine of res judicata. (Ground 2). ”

Learned counsel for the Appellant submitted that the trial Court was in grave error when it pre-emptively held that adjudicating on the issues raised and reliefs sought by the Appellant would be tantamount to reviewing the earlier decision of the Court of Appeal.

This is because by the claim of the Appellant, the trial Court was merely invited to entertain and determine on the merits and proclaim the success or failure of same. The decision of the trial Court can not therefore legally or factually have the effect of reviewing the earlier decision of the Court of Appeal. The Court of Appeal has powers to hear and determine appeals from the Federal High Court, High Courts of States and the FCT, Sharia Courts of Appeal of States and the FCT, Customary Courts of Appeal of States, Court Martial and other Tribunals pursuant to the provisions of Section 240 of the Constitution of the Federal Republic of Nigeria, 1999. This is distinguished from the mandate of the trial Court to hear and determine the claims sought by the Appellant on the merits. It is trite and well settled that the duty of all Courts is to do substantial justice by ensuring that cases are determined based on their merits and not on mere technicalities. Reference was made on this position of law to the case of: Ivie Ejinwumi Vs. Costain (West Africa) Plc & 2Ors. (1998) 12 NWLR (Pt. 576) p. 149 at pgs. 167 -168.

Learned counsel for the Appellant posited that the trial Court was consequently wrong to refuse to hear the Appellant on the merits of its claim.

It was further contended by the learned counsel for the Appellant that the issues submitted for determination by the Appellant and granted by this Court in Appeal No. CA/A/149/2002 are different from those in the Originating Summons errorneously dismissed by the trial Court. The issues involved in the first appeal are namely:

“(a) Whether the Respondent was able to prove beyond reasonable doubt that the Appellant committed a criminal offence by mounting Road Blocks in the process of collecting taxes and levies at the control Posts.

b. Whether the Appellant was, having regard to the circumstances of the case and the evidence before the court granted a fair hearing.

c. Whether there was sufficient material evidence before the trial court to have justified its having reached a decision that the Appellant breached the contract in the method of performance and was-therefore debarred from enforcing the contract.”

While, the issues sought to be determined in the trial Court are as follows:

“1. Whether the Plaintiff is entitled to a Term of 5 Years granted by the Agreement between the Plaintiff and the 1st Defendant dated 22nd June, 2001 having regards to Clause 1. 13, 2 (e) and 3 (a) of the Agreement and the Judgment of the Court of Appeal between the parties in respect of Appeal No. CA/A/149/2002 which inter alia decided as follows:

‘It is hereby declared that the Plaintiff/Appellant is entitled to the discharge of its obligations under the Agreement until same is validly determined by affluxion of time and/or, in accordance with the terms of the Agreement

2. Whether the Plaintiff can be held to have exhausted the 5(Five) Year term of the contract or executed the contract as contained in the Agreement between the Plaintiff and the 1st Defendant dated 22nd June 2001 for a Term of 5 Years, If possession is demanded of the Plaintiff by the Defendants, their agents, privies or servants on or before the 31st day of January 2005, when it has been determined by the Court of Appeal that the Plaintiff was unlawfully and wrongfully deprived of management and control of the various livestock and produce Control Posts at Jebba, Mokwa, Suleja and Wuse between 2nd May 2002 and 2nd July, 2004
3. If the answer to question No.1 is in the affirmative and answer to question No.2 is in the negative whether the Plaintiff is entitled to performance of the contract as provided by the Agreement between the Plaintiff and years which would only determine by exfluxion (sic)of time on 31st January 2008. ”

According to the learned counsel for the Appellant, the ingredients that must be present before a successful plea of “estoppel per rem judicatam” can be established are trite law. The ingredients are:

a) The parties in the previous and subsequent suits are the same;

b) The subject matter of litigation in the two suits are identical; and

c) The claim and the issues in the two suits are the same.

None of the three ingredients must be missing lest a plea of “res judicata” will automatically fail. Reliance on this position of law was placed on the cases of:

(1) Andrew Basser & 6 Ors. Vs. Solomon Ekanem & Anor. (2001) 1NWLR (pt. 694) p. 360 and

(2) Paul Cardoso Vs. John Bankole Daniel & 11 Ors. (1986) 2 NWLR (Pt. 20) p. 1at p. 5.

It was argued by the learned counsel for the Appellant that this Court in the earlier appeal did not make a specific finding that the contract between the Appellant and the 1st Respondent would terminate in January, 2005 but rather that the Appellant is entitled to the discharge of its obligations under the Agreement until same is validly determined by effluxion of time and / or in accordance with the terms of the said Agreement. The Agreement is to the effect that the Appellant is to manage and control the various control posts named therein for an initial period of five years, that is, sixty months with an option to renew for another period of five years.

Learned counsel for the Appellant contended that the period when the Appellant was deprived having been declared unlawful and illegal by this Court, the Appellant is well within its rights in instituting the action to give effect to the intention of the parties to have the Appellant perform within the specified period of five years as it did in the trial Court. A grave miscarriage of justice was therefore occasioned to the Appellant by the refusal of the trial Court to hear and determine its claim on the merits. It was proper for the Appellant to seek for a declaration that it was entitled to continue with the management of the said control posts until January, 2008 when the Agreement would have run for five years as contemplated, intended and agreed by the parties and specifically enforced by the orders of this Court in its judgment of 29/6/04. It is trite law that Courts do not make for but only enforce contracts agreed to by parties. Reference was made on this point of law to the case of; Texaco Nig. Plc Vs. Adegbile Kehinde(2001) 6 NWLR (Pt.708)p. 224 at p. 245

In the instant case, the contract would only have run for a period of four years in January, 2005 if it had not been interrupted. The learned counsel for the Appellant contended that there was an obvious Intention to renew the contract for another term of five years after the expiration of the first term of five years from January, 2001 when the Agreement was executed. However, there was a manifest error in clause 1.13 of the Agreement which is to the effect that it shall be for a term of five years commencing from the 1st day of February, 2001 and terminating on the 31st day of January, 2005.

Hence the order of this Court that the Appellant be enabled to continue to discharge its obligation under the contract until the contract is determined by effluxion of time In January, 2005 was not intended to create a new contract for parties short of the five year term agreed by them. Reference was made to the cases of;

(1) Afrotech Technical Services Nig. Ltd Vs. M.I.A. & Sons Ltd & Anor (2002) 15NWLR (Pt. 692) p. 730 at p. 772 and

(2) Baba Vs. NCATC(1991)5 NWLR (Pt. 192) p.388.

It was further submitted that the question of the tenure or tenor of the contract was not an issue before this Court, hence this Court in its said previous judgment could not have decided the issue so as to create the basis for a plea of estoppel. The trial Court therefore apparently misconstrued the con and spirit of the judgment and errorneously concluded that the issue of tenure had been determined.

In reply, the learned counsel for the Respondents argued that the issues before the trial Court in the instant case were Indeed same as those previously decided by this Court in Appeal No. CA/A/149/2002.The judgment remains valid and subsisting for it has neither been appealed against nor set aside and therefore remains binding on the parties. It is established that a party who has not appealed against a finding of a court on an issue is not entitled to be heard on the issue. Reference was made to the cases of:

(1) Adebayo Vs. Babalola 0995) 7NWLR (pt. 408)p. 383 at p. 391 and Mil. Admin. Benue State Vs. Uleggede (2001) 17NWLR (Pt. 741) p. 194 at R. 199

Learned counsel for the Respondents submitted that there is but one single subject of litigation in both suits and that is, the Contract Agreement of 22/6/2001 entered into by the Appellant and the 1st Respondent. He opined that it is the cause of action in a suit that dictates the issues to be established and determined for a successful litigation. It is the cause of action and the issues occasioned thereby that constitute a bar to subsequent proceedings and not the grounds of appeal and or the issues to be determined by the Court of Appeal in the course of that appeal as listed by the Appellant. In the instant suit, the three questions raised for determination in the trial Court and the three reliefs sought there from touch upon and concern the issues of the tenure, provisions, purport and effect of the said Agreement of 22/6/2001. These same issues were raised and eventually determined by this Court in the referred Appeal No. CA/A/149/2002. In Suit No. NSHC/MN/41/2002 which led to that appeal, the Appellant raised the issue of the tenure of the Agreement, for it sought an order restoring the 1st Respondent and the Appellant to the ‘status quo’ before 30/4/2002 to enable the Appellant to continue to discharge its obligations under the contract until the contract is determined by effluxion of time in January, 2005.

This Court granted the relief sought by the Appellant in that regard on the basis of the agreement between the parties which put the Agreement’s terminal date at January, 2005. The Appellant returned to the trial Court on some scrabbled issues, the bottom-line of which is whether-the-tenure of the Appellant’s occupancy or management of the Control Posts has expired or the determination of which date it will expire. This Issue has been decided by this Court in Appeal No. CA/A/149/2002.

Continuing, the learned counsel for the Respondents stated that the question whether the parties are entitled to continue to perform the contract has also been answered by this Court in its said earlier judgment wherein it was declared that the contract was valid and subsisting and can only be discharged by effluxion of time and or in accordance with the terms of the agreement. It was also contended by the learned counsel for the Respondents that pertaining to the period when the Appellant had been deprived of the performance of the contract, this Court equally made an order of mandatory injunction compelling the 1st and 2nd Respondents to among other things render accounts to the Appellant for the unlawful management of the Control Posts from 2/5/2002 until the control and management of the posts were surrendered to the Appellant. The first relief sought by the Appellant in the instant suit before the trial Court that it is entitled to the performance of the contract as contained in the Agreement in question for a term of five years by this Court is to the effect that the Appellant should continue to discharge its obligations under the contract until the contract is determined by effluxion of time and or in accordance with the terms of the agreement. The said decision not having been appealed against subsists and can not be overruled by the trial Court. The trial Court indeed lacks the jurisdiction to interpret the Contract Agreement at all and especially to accommodate the extension of its tenure to January, 2008 as it is being sought by the Appellant. This Court had extensively interpreted the Contract Agreement accordingly.

Learned counsel for the Respondents argued further that the instant suit before the trail Court is caught by the doctrine of “res judicata” as rightly held by the learned trial Judge. For the decision relied upon to support the plea was a final judgment, the parties involved in both proceedings are the same and the tenure of the contract or its expiration, which came up for determination, although singled out and couched differently in the instant suit, was already decided in the earlier proceedings. Reliance was placed on the case of:

Oseni Vs. Oniyide (1999)13 NWLR (Pt. 634)p. 258 at p. 262.

Furthermore, it was contended by the learned counsel for the Respondents that the Appellant unavoidably exhibited the Contract Agreement, made the tenure of the contract an issue in establishing whether the contract was interpreted in the previous suit to cover the issue of tenure. The Appellant having not then contended that there was an error in the Agreement can not now raise that issue. The Appellant’s former prayer to be reinstated to possession till January, 2005 was granted, an order was made and complied with In that regard. That amounted to a final determination of the issue of the tenure of the contract between the parties. It is established that within a single cause of action, there may emerge several issues raised which are necessary for the determination of the whole case.

Once any of such issues has been distinctly raised and determined between the parties by the court, neither party as a general rule is permitted to relitigate the same issue all over again in a subsequent suit between them. A party is therefore precluded from contending in perpetuity any precise point which having been once distinctively put in issue, has been properly determined against him. Even if the objects of the first and second actions are different, the finding on a matter which came directly in issue in the first action provided it is embodied in a judicial decision that is final, is conclusive and precluded from being put in issue in a second action between the same parties and their privies. Thus once an issue has been settled by a court of competent jurisdiction, the parties are bound by the determination of the issue. Reliance was placed on this position of law on the cases of:

(1) Ikoku Vs. Eleukwu0995) 7NWLR (pt. 410) p. 637 at p. 641;

(2) Adebayo Vs. Babalola Supra.

(3) Adone Vs. Ikebudu (2001) 4 NWLR (Pt. 733)p. 385 at p. 392 and

(4) Njokanma Vs. Mowete (2001) 6 NWLR (Pt. 709)p. 351 at p. 354.

Indeed, even if a party omitted to raise any particular point from negligence, inadvertence or accident, he may be shut out from raising that point again if the same issue arises in that same or subsequent proceedings. The Appellant is estopped from raising the question of the tenure of the agreement in the instant proceedings even assuming but not conceding that the question was not raised and decided in the earlier proceedings. The learned trail Judge was therefore right to pre-emptively decline jurisdiction to entertain the suit having established that the Appellant is caught by the doctrine of “estoppel per rem judicatam”. Reference was made on this point to the cases of:

(1) Adigun Vs Osun State (1995) 3 NWLR (Pt-385) p. 513 at p. 518;

(2) Ishie Vs. Mowanso (2000)13 NWLR (Pt. 684)p. 279 at p. 283 and

(3) Hi-Flow Farm Ind Nig. Ltd v. Univ. of Ibadan (1993) 4 NWLR (Pt. 290)p. 719at p. 734.

It is settled law that once a court lacks jurisdiction, it acts in vain and in nullity no matter how well conducted the proceedings were.

The crux of this appeal is the determination of the question: had the issues raised by the Appellant in the trial Court vide its Originating Summons indeed been adjudicated upon by this Court in the earlier appeal No. CA/A/149/2002? In resolving this poser, it is pertinent to reiterate the issues submitted for determination in the two separate matters. In the earlier suit No. NSHC/MN/41/2002 which culminated in the appeal No. CA/A/149/2002, the Appellant sought the following reliefs:

“i. A DECLARATION that the purported termination of the contract between the ft Defendant and the Plaintiff is ultra vires the Agreement dated 22nd June, 2001 and therefore arbitrary, oppressive, illegal, wrongful, null and void and of no effect.

ii. A DECLARATION that the contract between the 1st Defendant and the Plaintiff dated 22nd June, 2001 is valid and subsisting and can only be discharged by effluxion of time and/or in accordance with the terms of the Agreement.

iii. AN ORDEROF-MANDATORY INJUNCTION compelling the 1st Defendant, its agents, servants and privies to abide by the contract in accordance with the terms of the Agreement dated 22nd June 2001

iv. AN ORDER OF MANDATORY INJUNCTION compelling the 1st and 2nd Defendants, their servants, agents and privies to restore the Plaintiff to the control and management of the control posts at Jebba, Mokwa, Suleja and Wuse as specified in the Agreement dated 22nd June, 2001

v. AN ORDER OF MANDATORY INJUNCTION directing the 4th Defendant, its servants, agents and privies to vacate and deliver up to the Plaintiff the management and control of the Control posts at Jebba, Mokwa, Suleja and Wuse as contained in the Agreement and to render account to the Plaintiff for its unlawful management of the Control Posts from 2nd May, 2002 until surrender of Control and management of the Posts to the Plaintiff

vi. AN ORDER restoring the f’ Defendant and the Plaintiff to the Status Quo before 30th April, 2002 enabling the Plaintiff to continue to discharge its obligations under the contract until the contract is determined by effluxion of time in January, 2005

vii. AN ORDER of specific enforcement of the contract between the r Defendant and the Plaintiff as contained in the Agreement dated 22nd June, 2001

viii. A DECLARATTON that the Plaintiff is entitled to the discharge of its obligations under the Agreement until same is validly determined by effluxion of time and/or in accordance with the terms of the Agreement

ix. A DECLRATTON that the purported award of a new contract to the 4th Defendant or to any other person by whatever name called or known for the management and Control of the live stock and produce control posts at Mokwa, Suleja, Jebba and Wuse in the circumstance of the case is arbitrary, oppressive, unlawful, wrongful, illegal and an exercise in executive recklessness and Anti democratic”.

All the reliefs were granted by this Court in that previous appeal in the following terms:

“1. It is hereby declared that the purported termination of the contract between the 1st Defendant/1st Respondent and the Plaintiff/Appellant is ultra vires the agreement dated 22nd June 2001 and therefore arbitrary, oppressive, illegal and void and of no effect.

2. It is hereby declared that the contract between the 1st Defendant/1st Respondent and the Plaintiff/Appellant dated 22nd June 2001 is valid and subsisting and can only be discharged by effluxion of time and or in accordance with the terms of the agreement.
3. An order of mandatory injunction is hereby made compelling the 1st Defendant/1st Respondent, its agents, servants and privies to abide by the contract in accordance with the terms of the agreement dated 22nd June 2001.
4. An order of mandatory injunction is hereby made compelling the 1st and 2nd Defendant/1st Respondents their servants, agents and privies to vacate and deliver up to the Plaintiff the management and control of the Control Posts at Jebba, Mokwa, Suleja and Wuse as contained in the agreement and to render account to the Plaintiff/Appellant for its unlawful management of the Control Posts from 2nd May 2002 until the surrender of the control and management of the posts to the plaintiff/Appellant.
5. It hereby ordered that the 1st Defendant/1st Respondent is restored to the status quo before 30th

April 2000, and the Plaintiff/Appellant be enabled to continue to discharge its obligations under the contract until the contract is determined by effluxion of time in January 2005

6. It is hereby ordered that the terms of the agreement of 22nd June 2002 between the 1st Respondent/1st Defendant and the Plaintiff/Appellant be specifically enforced.
7. It is hereby declared that the Plaintiff/Appellant is entitled to the discharge of its obligation under the agreement until same is validly determined by effluxion of time and/or, in accordance with the terms of the agreement.
8. It is hereby declared that the purported award of the contract to any other company or to any other person by whatever name called or known for the management and control of the Livestock and Produce Control Posts at Mokwa, Suleja, Jebba and Wuse in the circumstances of the case is arbitrary, unlawful, wrongful and illegal”

The Appellant after the success of the previous appeal in its favour went back to the trial Court and sought the following reliefs:

“1. A DECLARATION that the Plaintiff is entitled to performance of the contract as contained in

the Agreement between the Plaintiff and the 1st Defendant dated 22nd June 2001, for a term of 5

years, which would expire or determine on 31st January 2008.

2. A DECLARATION that by 31st January 2005, the Agreement between the Plaintiff and the 1st

Defendant dated 22nd June2001 would only have been performed for a period of 1(one) year and 10 (ten) months.

3. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants by themselves, their servants, agents and/or privies howsoever from disturbing the Plaintiff’s management and control of the Produce Control Posts located at Jebba, Mokwa, Suleja and Wuse as particularized in the Agreement and for the purpose contained in the Agreement until the term of 5years granted by the Agreement between the Plaintiff and the 1stDefendant dated 22nd June 2001 would have expired on 31st January 2008.”

On a close scrutiny of the reliefs sought by the Appellant in the both suits, it is patent that all the reliefs were predicted and border on the interpretation of the Contract Agreement executed between the Appellant and the 1st Respondent on 22/6/2001. In the first suit, reliefs (i) – (v) relate to the legality and enforcement of the contract.

While reliefs (vi) – (viii) relate to the period or duration or time limit of the contract. The substratum of the second suit which gave birth to the present appeal is principally the determination of the time limit of the same contract by reason of the time lag between when it was executed and when it was illegally terminated on the one hand and the time the Appellant was restored – see reliefs 1 and 2 of the instant suit. The contention of the Appellant is that in its estimation, because of the initial illegal termination of the contract by the 1st Respondent, there is a long time lag between when the contract was illegally terminated and when it was restored to continue with the management of the-control-posts,-the-subject matter of the contract.

It is the opinion of learned counsel for the Appellant that the Appellant had only performed for a total period of one year and ten months out of the five year duration of the contract as agreed between both parties. By the Appellant’s calculation, the contract ought to extend to and expire on 31/1/2008 and not 31/1/2005. It is pertinent however to go back in time to look at the exact relief

sought by the Appellant in the earlier suit in this regard. Before proceeding on this point, it is apposite to state here that I am in agreement with the learned counsel for the Respondents that not

withstanding the couching of the various reliefs sought by the Appellant in both the previous and the instant suits, the one major subject matter of both litigations touches upon and concerns the question of the tenure of the contract in dispute.

Specifically, under relief (vi) of the previous suit, the Appellant prayed to be restored with the 1st Respondent to the Status Quo before 30/4/2002 and for it to be enabled to continue to discharge its obligations under the contract until the contract was determined by effluxion of time in January, 2005. This relief or prayer was accordingly granted by this Court – see paragraph 5 of the judgment at page 49 to page 50 of the record. Put in other words, this Court in the said earlier appeal on the suit awarded to the Appellant the specific relief sought by it. This relief sought by and grant to the Appellant clearly relates to the issue of the tenure or duration or time limit of the contract in dispute.

The next important question to ask is: Can the issue of tenure which had earlier on been determined be resurrected as is being sought to be done by the Appellant in the instant suit which has given birth to the present appeal? The Respondents raised an objection to the suit of the Appellant before the trial Court that the Appellant is in law estopped from commencing the said suit, the subject matter of which suit in their opinion had been tackled in a previous action between them as parties. Put differently, the Respondents predicated their objection on the plea of “estoppel per rem judicatam”.

By the provisions of Section 151 of the Evidence Act, when one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any subsequent proceedings between himself and such other person or such other person’s representative in interest, to deny the truth of that thing. This is the doctrine of “estoppel”.

Estoppel prohibits a party from proving anything which contradicts his previous acts or declarations to the prejudice of a party who relied upon the acts or declarations. The issue of ‘estoppel’ operates in subsequent suits between the same parties in which the same issue arises. A party cannot and will not be allowed to re-open an issue already determined merely on the ground that he can now produce better and further evidence.

Therefore, where a given matter becomes the subject of litigation in, and of adjudication by a Court of competent jurisdiction, parties are required and they shall put forward their entire case and the courts will not permit the same parties to reopen the same subject of litigation in respect of the matter which ought to have been brought forward as part of the subject in contest, but which was not brought forward by reasons of negligence, inadvertence or even accident.The plea of resjudicata’ applies to points upon which the court was actually required by parties to form an opinion and pronounce a judgment as well as all points which properly belong to the subject of litigation and which the parties, exercising reasonable diligence and care, might have put forward originally.

It is an established principle of law that in order for a plea of “estoppel per rem judicatam” to succeed, the party relying on it must prove that:

(a) the parties or their privies are the same in both the previous and present proceedings;

(b) the claim or the issues in dispute in both proceedings are substantially the same,

(c) the “res” or subject matter of the litigation in the two cases is the same;

(d) the decision relied upon to support the plea of “estoppel per rem judicatam” must be valid, subsisting and final; and

(e) the Court that gave the previous decision relied upon to sustain the plea must be a court of competent jurisdiction.

The above are pre-conditions which must all together be established in order to sustain the plea of “estoppel per rem judicatam” Once they are established, such previous judgment is conclusive and “estops” a plaintiff from making any claim contrary to the decision in the previous judgment. See the cases of:

(1) Balogun Vs. Ode (2007) All FWLR (Pt. 358) p.1050;

(2) Akpan Vs. Regtd Trustees Q.I.C.N. (2001) 15 NWLR (Pt. 736) p. 328;

(3) Tsokwa Oil & Marketing Co. Vs. U.T.C. (Nig.) Plc. (2002) 12 NWLR (Pt 782) P 437;

(4) Onyeabuchi Vs. INEC. (2002) 8 NWLR (Pt. 769) p.417;

(5) O. Ezeokonkwo & 2 Ors Vs. N. Okeke & 2 Ors (2002) 11 NWLR (Pt. 777) p. 1;

(6) Afolabi Vs. Gov., Osun State (2003) 13 NWLR (Pt. 836) p.119;

(7) Archibong Vs. Ita (2004) 2 NWLR (Pt. 858)p. 590;

(8) Akoma Vs. Osenwokwu(2004) 11NWLR (Pt. 883)p. 98;

(9) Obasi Bros. Co. Ltd V. M.B.A.S. Ltd (2005) 9 NWLR (Pt.929) p. 117 and

(10) Long – John Vs. Blakk (2005) 17 NWLR (Pt. 953)p. 1.

I have diligently examined and compared the claims or reliefs sought by the Appellant in both the previous and the instant suits, the subject matter and the issues involved in them are substantially the same. The subject matter of both suits is the Contract Agreement entered into by the Appellant and the 1st Respondent on 22/6/200l.

The issue in contention is the duration or tenure or time limit of the contract. The issue and indeed the subject matter had been distinctly and finally decided in the previous suit which culminated in the appeal heard and determined by this Court in appeal NO.CA/A/149/2002. It can also be seen and I hold that in the instant case, the parties in the two suits are the same, likewise, the issue and the subject matter of them both, not withstanding the precise form in which they were brought or instituted.

It is therefore not open to the Appellant to argue that the duration or tenure or period or time limit of the contract must be computed in any other way different from that sought by him and granted to him by this Court previously. The Appellant can not be heard now to argue that there was an error in the Agreement which was turned in earlier by it for interpretation and which was duly interpreted by this Court, a Court of competent jurisdiction. The Respondents were right to employ and use the plea of “resjudicata” as a defence to the present suit of the Appellant before the trial Court, that is, suit No NSHC/MN/174/2004.TheRespondents could rightly use the judgment in appeal No. CA/A/149/2002 in support of their defence. The plea of “resjudicata” avails them accordingly. The trial Court therefore properly and correctly concluded and found that it is the same matter that was being relitigated by the Appellant and that there was a valid defence of “estoppel per rem judicatam” against the Appellant and in favour of the Respondents.

As a general rule of law, once one or more of any issues have been distinctly raised in a cause of action and determined between the same parties in a court of competent jurisdiction, neither party is allowed to reopen or relitigate or fight any of such issues all over again in another action between the same parties. See the cases of:

(1) Tsokwa Oil & Marketing Co. Vs. U.T.C. (Nig.) Plc. Supra and

(2) F. Shanu & Anor Vs. Airibank Nig Plc (2002) 17NWLR (Pt. 795) p.185.

It is in fact an abuse of court process for a party to seek to relitigate an issue previously litigated and decided upon. See the case of:

Adigun Vs. The Sec. Iwo Local Govt. (1999) 8NWLR (Pt. 613)p. 30

The only option open to the Appellant in this matter is to appeal against the earlier judgment of this Court in appeal No. CA/A/149/2002 if it is not satisfied with the decision therein. For that judgment remains binding on the Appellant and the Respondents until appealed and set aside or reversed by a superior court of jurisdiction. See the case of:

Fasade Vs. Babalola (2003) 11NWLR (Pt. 830) p. 26.

If the Appellant chose not to appeal against any error perceived by it in the judgment, then the matter must lie and remain there. This is the basis of the doctrine of “estoppel per rem judicatam” to ensure certainty of litigations; were it otherwise, no judgment of a court would enjoy respect of dignity, sanctity and inviolability. The doctrine has been structured on two pronged rules of public policy expressed in two Latin maxims viz:-

(a) “Interest rei publica it set finis litium’ – That it is for the common good that there should be an end to litigation or that it concerns the State that there be an end of law suits or that it is for the general welfare that a period or an end be put to litigation, and

(b) “Nemo debet bis vexari proeadem causa”- That no one ought to be proceeded against twice if it be proved to the court that it be for one or the same cause or that no one should be sued or vexed twice on the same ground, on the same set of facts, it there has been a final decision of a competent court.

See also the cases of:

(1) Obikpong Vs. Offiong supra and

(2) Mba Vs. Agu (999) 12 NWLR (pt. 629) p. 1.

(3) Offor Vs. Leaders & Co. Ltd (2007) 7NWLR (pt. 1032) p.1.

In the instant case, to allow the Appellant reopen the case between it and the Respondents under the guise of the proposed pro-rata computation of the tenure or time limit of the contract is to denigrate the time hallowed doctrine of “estoppel per rem judicatam” which is founded on good sense and logic that there must be an end to litigation. The doctrine is to prevent a plaintiff from having a second bite of the cherry which is an opportunity to improve on the case previously made out by him. A judgment no matter its quality is the solemn findings and conclusions of the court based on facts and law. It remains validly so until it is set aside in accordance to the law of hierarchy of courts as provided by the Constitution of the Federal Republic of Nigeria, 1999. What is more, one of the reliefs sought by and granted to the Appellant in the previous suit was its restoration and the rendition of accounts to it in respect of all the activities at the Control Posts in dispute during the period of its illegal deprivation from the performance of the contract by the Respondents.

I have no doubt in agreeing with the learned trial Judge that adjudicating upon the issues sought to be determined by the Appellant in its Originating Summons would legally and factually be tantamount to reviewing the previous decision of this Court on those self-same issues already determined in appeal No. CA/A/149/2002.

This is beyond the realm of mere technicality as errorneously hypothesized by the learned counsel for the Appellant. Having found that those issues have been conclusively and decisively determined by this Court, the Appellant’s claim is definitely caught up by the doctrine of “estoppel per rem judicatam” I am satisfied that the trial Court was correct and right in dismissing the Appellant’s case against the -Respondents accordingly. The trial Court properly declined jurisdiction. It is established that the issue “estoppel” binds not just the parties concerned but also the court. In which case the jurisdiction of the Court is ousted on a successful plea of the defence of “res judicata” in the subsequent suit. See the cases of:

(1) Ehidimhen Vs. Musa (2000) 8 NWLR (Pt. 669) p. 540.-

(2) Obiokpong Vs. Offiong (2000) 3NWLR (Pt. 648) p.324:

(3) Ughutevbe Vs. Shonowo (2004) 16 NWLR (Pt. 899) p. 300 and

(4) Ogbogu Vs. Ugwuegbu(2003)16 NWLR (Pt. 827) p.189.

It is trite that the jurisdiction of a court is very fundamental to the adjudication of the matter before it. It is so much radical that it forms the foundation of adjudication. It is the cornerstone of all litigations. If a court lacks jurisdiction, it lacks the necessary competence to entertain the claim before it. Where an objection is raised to the jurisdiction of the trial court to try an action, the court at that stage has to enquire whether in fact its jurisdiction has been ousted. See the cases of:

(1) Madukolu Vs.Nkemdilim0962) 1All NLR p. 588;

(2) Olobo Vs. Akereja 0988) 3NWLR (Pt. 84)p. 508;

(3) Nwosu Vs. Imo State Environmental Sanitation Authority (990) 2 NWLR [Pt. 135)p. 688;

(4) Aremo II Vs. Adekanye (2004) 13 NWLR (Pt. 891) p.572 and

(5) Ebhodagbhe Vs. Okoye (2004) 18NWLR (Pt. 905) p.472

In considering therefore whether the court has jurisdiction to entertain an action, it is the plaintiff’s claim that the court has to consider. It is the plaintiff’s cause of action that determines the legal right of a party to judicial relief(s). The all-embracing subject matter, that is, all the features entitling the court to its exercise of jurisdiction must be intact for the court to assume adjudication thereon. See the cases of:

(1) Ogunmokun Vs. Milad Osun State 0999) 3 NWLR (Pt. 594) p. 261:

(2) Ajibola Vs. Sogeke (2003) 9NWLR (Pt. 826) p. 494;

(3) B.B. Apugo & Sons Ltd Vs. Orthopeadic Hospital Management Board (2005) 17 NWLR (Pt. 954) p. 305 at p. 334 – 335;

(4) Okumodi Vs. Sowunmi (2004) 2 NWLR (Pt. 856) p. 1 at p. 24 and

(5) Plateau State Vs. A.-G, Federation (2006) 3 NWLR (Pt. 967) p. 346 at p. 430.

In the instant case, the reliefs sought by the Appellant in its Originating Summons relate to those which this Court had already adjudicated upon and founded in his favour. The Appellant in essence is asking the trial Court to judge what has already been judged, this in law is regarded as a contradiction in terms. Parties as well as the court are forbidden from engaging in such an illegal exercise. See the cases of:

(1) Ukaegbu Vs. Ugoji (1991) 6 NWLR (Pt. 196) p. 127 and

(2) Achiakpa Vs. Nduka (2001) 14NWLR (pt. 734) p. 623.

Both the trial Court and indeed this Court lack the jurisdiction to determine the reliefs now being sought by the Appellant. A court is not permitted to reverse itself upon taking-a decision on an issue and subject matter of an action. After a court has made an order in an interlocutory matter or given a final judgment in a cause not appealed, it becomes “functus officio” and can not change or reverse the same except under the very restricted slip rule. Such an order or a judgment can only be amended or reversed, if need be, by way of an appeal. Thus, a court is bound by an issue it has distinctively decided as in the instant matter and even within the same cause of action. Seethe cases of:

(1) Lawal Vs. Dawodu (1972) 8-9 S.C p. 83;

(2) Ukaegbu Vs. Ugoji Supra:

(3) Shanu Vs. Afribank (Nig.) Plc. Supra and

(4) Begha Vs. Tiza (2000) 4 NWLR (Pt 652) p. 193.

Consequent upon my foregoing deductions and conclusions, Issues 1 and 2 are hereby resolved in favour of the Respondents.

ISSUE 3

“Whether the Defence of res judicata can be properly raised by way of a Preliminary Objection without a supporting affidavit providing the factual basis for the plea.”

learned counsel for the Appellant submitted that the plea of “res judicata” can only be properly raised, articulated and sustained on the basis of affidavit evidence exhibiting relevant processes and documents before the Court. For the plea necessarily involves questions of fact which can only be provided “viva voce”. In the instant case, the trial Court did not have the benefit of seeing the originating process, reliefs and issues submitted for adjudication in the previous proceedings to enable it come to an informed decision as to whether the plea of “res judicata” had been made out. Reliance was placed on the case of:

Alh. Haruna Usman Vs. Umaru Garba Kusfa & Anor. (1992) 8 NWLR (Pt. 258) p.247

According to learned counsel for the Appellant and rightly, the general principle of law governing the doctrine of “res judicata” is well settled. It applies where on the facts, the subject matter of a dispute has already been adjudicated upon to conclusion by a competent court between parties or their privies. It is a rule of evidence that a party or his privy is not allowed to dispute in any subsequent proceedings a matter which had been adjudicated upon previously by a court of competent jurisdiction between him and another or their privies where the issues and subject matter are the same in the previous action as those in the action in which the plea is raised. In the previous proceedings the Appellant challenged the termination of the Contract in dispute and its subsequent award to a non-existent third party. The subsequent proceedings which gave rise to this appeal is concerned with how the period of five years was to be computed with regard to the contract in question vis-a-vis the relevant facts. The trial Court therefore erred in upholding the defence of “resjudicata” raised by the Respondents.

Replying, learned counsel for the Respondents submitted that the basis of the preliminary objection raised by the Respondents in the trial Court is that the previous judgment of this Court in appeal No. CA/A/149/2002 operates as estoppel against the issues and prayers raised by the Appellant before the trial Court. The said judgment was duly exhibited to the Originating Summons and was part of the records of the trial Court. The history of the dispute as well as the grounds of appeal between the parties were enumerated in the said judgment. This is the only relevant document and it is not necessary to tender pleadings and affidavit of the previous suit in order to sustain a plea of “resjudicata” Reference was made to the provisions of Section 55(1) of the Evidence Act and the cases of:

(1) Hi- Flow Farm Ind Vs. Unibadan Supra at p. 736;

(2) Oyebamiii Vs. S.C.S.C. (1997) 5 NWLR (Pt. 503) p. 113 at p. 116:

(3) Ikoi Vs. Ibiang (2002) 10 NWLR (pt. 776) p. 455:

(4) A.-G., Fed Vs. ANPP (2004) FWLR (Pt. 190) p. 1458 at p. 1460 and

(5) Ezeanya Vs. Okeke (1995) 4 NWLR (pt. 388) p. 142 at p. 147.

The question therefore whether or not a previous judgment operates as estoppel in a later action is entirely a matter of law. The Respondents in the matter of preliminary objection properly raised that matter of law. The Appellant was not taken by surprise in respect thereto. What is more, a court can rely on any document or fact already before it or forming part of its records in the determination of any issue before it. The trial Court was therefore right to find in favour of the Respondents in its ruling under challenge.

Generally, a party who relies on “estoppel per rem judicatam” must plead it specifically. However, it is not necessary to plead it in any particular form so long as the matter constituting the estoppel is stated in such a way to show that the party pleading relies upon it as a reference or defence or answer. Seethe cases of:

(1) Abisi Vs. Ekwealor (1993) 6 NWLR (Pt. 302)p. 643 and

(2) Obikpong Vs. Offiong Supra.

In the instant case, the Appellant did not file a Statement of Claim so as to warrant and necessitate the Respondents filing a Statement of Defence in response. The reliefs sought by the Appellant were endorsed on the Originating Summons filed by it. In response to this, the Respondents filed a Notice of Preliminary Objection which was argued by the Respondents’ counsel and duly opposed by the Appellant’s counsel. I am favourably disposed to the submissions of the Respondents’ counsel that all the points of both law and facts submitted upon are embedded in the judgment of this Court in appeal No. CA/A/149/2002 relied upon in the plea by the Respondents. The judgment was attached to the Notice of Preliminary Objection as an exhibit. The judgment in my view constitutes enough material, the legal and factual basis to enable the trial Court determine the objection of the Respondents one way or another. Indeed, when the judgment of a court is tendered in support of the plea of “estoppel per rem judicatam”, the court before which it was tendered would examine the judgment with a view to discovering the parties, the issues and the subject matter of the dispute in the previous case. The court would have to satisfy itself that the judgment is regular on the face of it, that is, that the previous dispute was decided by a court with jurisdiction to determine that class of dispute and the judgment of that court is final as between the parties before it. This was exactly what the learned trial Judge did in this matter as can be gleaned from the printed record.

I am of the humble but firm view that there is nothing wrong with the way that the estoppel was pleaded in the- preliminary objection filed by the Respondents in the trial Court. Also, I find it hard to and really I can not fault the finding of the trial Court and its rejection to assume jurisdiction in the case. The ruling of the trial Court as perceived by me is sound and appropriate in the given circumstances of this case. It was not the duty of the trial Court and it lacks the competence to review or depart from but to give effect to the earlier judgment of this Court in appeal No. CA/A/149/2002.

More so that the said judgment was a final judgment. The trial Court did right by refusing to review but rather gave effect to the judgment.

Both this Court and the trial Court should not and could not treat that judgment as if it was an appeal before them. Indeed that duty or functions the exclusive preserve of a court higher in jurisdiction than them both.

In conclusion, I hold that the earlier judgment of this Court in appeal No. CA/A/149/2002 being known and ascertained is sufficient material for the purpose of the plea of “resjudicata” relied upon by the Respondents in this matter. It was absolutely unnecessary for an affidavit of facts to be submitted with the Notice of Preliminary Objection of the Respondents. For the correctness or the merits of a judgment on which a plea of “res judicata” is founded is not an issue in the case in which the judgment is produced as the basis for the plea. Once the judgment is final, whatever it decided as between the parties thereto is binding on them save that and until it is set aside on appeal by a court of higher jurisdiction. I am of the view and I hold that the said earlier judgment of this Court operates as an estoppel to bar the Appellant from instituting the suit, the subject matter of the instant appeal. See the case of: S.P.D.C. (Nig.) Ltd Vs. XM Fed Ltd (2006) 16 NWLR (Pt. 1004)p. 189.

For the above line of reasoning and conclusion, issue 3 is also resolved in favour of the Respondents.

On the whole, I find that the plea of “estoppel per rem judicatam” was successfully pleaded by the Respondents and correctly upheld by the trial Court. I also hold that the reliefs sought vide the Originating Summons of the Appellant in the trial Court was in abuse of process. Consequent upon my above articulated findings, it behoves me in exercise of my right and duty in law to hold inevitably and concomitantly that the appeal suffers the fate of dismissal. This appeal is declared lacking in merit and dismissed accordingly. The ruling of the trial Court is hereby affirmed.

I make no order as to costs.

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Other Citations: (2007)LCN/2415(CA)