Nigerian Industrial Development Bank & Anor. V. Limani (Nigeria) Enterprises Ltd. (1998)
LawGlobal-Hub Lead Judgment Report
MUHAMMAD, J.C.A.
At the Federal High Court. Sokoto, the respondent as plaintiff instituted a suit against the appellants as defendants. The plaintiff filed a statement of claim. The defendants meanwhile filed a motion on notice praying the court to strike out or dismiss plaintiff’s action as the court lacked jurisdiction and as the statement of claim did not show any reasonable cause of action. After considering the affidavit evidence from the respective parties the learned trial Judge. Abutu, J. hold that the statement of claim filed had disclosed no reasonable cause of action. Consequently he struck out the statement of claim and dismissed the suit. That was on the 12th day of December, 1991. The case bore suit No. FHC/S/2/90.
On the 30th day of May, 1994, the respondent as plaintiff took a writ of summons from the Federal High Court, Kaduna, against the appellants as defendants. A statement of claim was filed by the plaintiff. The defendants through their learned senior counsel filed a motion on notice praying the court among other things for an order of the court striking our the plaintiff’s suit on the ground that there was a subsisting order of dismissal of same suit made by the Federal High Court, Sokoto between same parties and on same subject matter thereby constituting an absolute bar to further proceedings before the Federal High Court of Nigeria (plea of res judicatem).
After taking arguments from learned counsel for the respective parties, the learned trial Judge, Okeke J., held that the ruling delivered by Abutu J. in suit No. FHC/S/2/90 of 12th December 1991. at Sokoto does not constitute a res judicata to the suit filed before him which bears No. FHC/KD/CS/11/94. This ruling was delivered on the 17th day of July, 1995.
Dissatisfied with the ruling of the Federal High Court Kaduna in suit No. FHC/KD/CS/11/94, the appellants filed a notice of appeal containing the omnibus ground. By leave of the court, three additional grounds were deemed properly filed and served on the 26th day of February. 1996. Parties filed and exchanged briefs of argument Learned counsel for the appellants formulated the following issues:
“2.1 Does Abutu J’s ruling in suit No. FHC/S/2/90 which dismissed the said suit on the ground that it disclosed no cause of action constitutes estoppel per res judicatam in suit No. FHC/KD/CS/11/94?
2.2 Does the ruling of Okeke J. in FHC/KD/CS/11/94 constitute a review and/or variation of Abutu J’s dismissal order in suit No. FHC/S/2/902. If the answer is in the affirmative, was Okeke J. competent to so review Abutu J’s decision??
Learned counsel for the appellant, after adopting and relying on his brief of argument, submitted that Abutu J’s order which dismissed suit No.FHC/S/2/90 constituted an estoppel per res judicata sufficient to warrant the dismissal of suit No. FHC/KD/CS/11/94 before Okeke, J. He cited the case of Adebayo v. Babalola (1995) 7 NWLR (Pt.408) 383 at 405; P.B Olatunde & Co. (Nig.) Ltd v. National Bank of Nigeria Ltd (1995) 3 NWLR (Pt. 385) 550 at 562. It was his argument that as the Kaduna Federal High Court did not consider that the Sokoto Federal High Court order could constitute estoppel per res judicata, the court was in grave error. Sokoto Federal High Court ruling, he submitted further, was on the merit as it was based on the appellant’s application which was supported by an affidavit and annexures which constituted the evidence and facts upon which the Sokoto Federal High Court ruled. That court’s ruling, according to learned counsel was quite conclusive as it decided to finality the rights of the parties.
On issue number two, the learned counsel for the appellant argued that the ruling of Federal High Court Kaduna amounted to a review of the ruling of Federal High Court, Sokoto which the former court had no power to do as both former and latter courts are not only of co-ordinate jurisdiction but also one and the same court, though operating in different judicial divisions. He urged us to allow the appeal.
In his submission, learned Senior Advocate for the respondent, after having adopted and relied on his brief of argument, argued that all the reasons given by the learned appellants counsel for the Kaduna Federal High Court to find in their favour on the existence of res judicata, were inapplicable to the facts, of the case on hand. After having quoted the reliefs asked as contained in the statement of claim before the Federal High Court Sokoto and some excerpts from that court’s ruling, the learned SAN argued that it is clear that the Federal High Court Sokoto’s ruling dealt with an interlocutory issue of whether the statement of claim filed before it disclosed any reasonable cause of action or not upon which the learned trial Judge resolved that the statement of claim did not contain any relief. The absence of reliefs rendered the entire proceedings inchoate and short-lived thereby making the statement of claim to disclose no reasonable cause of action. Learned SAN submitted further that the non-disclosure of a cause of action or reasonable cause of action by the statement of claim cannot sustain the plea of estoppel per rem judicatem as raised by the appellants. He argued further that the ruling relied upon by the appellants did not decide any issue to finality.
On issue number two, it is learned SAN’s submission that an order of dismissal of the suit granted by the Federal High Court Sokoto could not prevent or act as an estoppels on a new suit filed with reliefs contained now in the statement of claim. He urged us to dismiss the appeal.
Let me state, for the sake of easy reference, that since two divisions of the Federal High Court: (i) Federal High Court sitting at Sokoto and (ii) Federal High Court silting at Kaduna are involved in this appeal, I shall refer to them hereinafter as: “1st trial court” and “2nd trial court,” respectively and same shall extend to the trial Judges of the two courts. In dealing with the appeal, I shall follow the issues set out by learned counsel for the appellants as they are, in my view, properly formulated in relation to the grounds of appeal. Now, in considering issue number one. I find it necessary to define two phrases which I consider operative, used in the issue. These are: “cause of action” and “estoppel per res judicata. ”
A cause of action in a civil suit has been defined as “any facts or series of facts which are complete in themselves to found a claim or a relief.” It is, in other words, the right which a party has to institute a judicial proceeding. Thus a cause of action gives rise to a right of action which is accruable at the commencement of the suit.
An estoppel, on the other hand, is a bar or impediment which precludes allegation or denial of a certain fact or state of facts in consequence of a final adjudication of the matter in a court of law. Therefore, the doctrine of estoppel per res judicata (rem judicatem) is a plea of an estoppel against the losing party from again litigating matters involved in previous action, where res judicata is pleaded by way of estoppel to an entire cause of action as in the present appeal. It amounts to an allegation that the whole legal rights and obligations of the parties are concluded by the earlier judgment which may have involved the determination of questions of law as well as findings of facts. See: Badar Bee v. Habib Merican Noordin (1909) AC 615. For the doctrine to operate successfully, it is necessary to show not only that the cause of action was the same but must have also been determined on the merits by a competent court or tribunal: See; Badar Bee v. Noordin (supra); P. B. Olatunde & Co. (Nig.) Ltd v. N.B.N. Ltd (1995) 3 NWLR (Pt. 385) 550, p.562 D – G. Ladimeji v. Salami (1998) 5 NWLR (Pt. 548) 1 at page 11 B – C. In the appeal on hand, the appellants are complaining that the second trial Judge should not have entertained the new suit filed before him as same was competently, decided by the first trial Judge. I will agree with the submission of the learned counsel for the appellants as conceded also by the learned SAN for the respondents that the parties and subject matter in respect of the suit filed before the second trial court were the same. I agree also that the first trial court was competent to decide on the suit as it did. But the questions arising then are: what was the nature of the decision? Has the decision satisfied the conditions laid by law for the doctrine to operate?
At the risk of repetition and in an attempt to answer the questions posed above. I do hereby reiterate that the conditions upon which the doctrine of estoppels per rem judicatem thrives are:
- the parties were the same in the two suits in dispute;
- the subject matter in dispute was the same in both suits:
- the judgment upon which estoppel is pleaded is a judicial decision of a competent court or tribunal:
- the judgment was final in that it determines with finality the parties legal rights therein; and
- that in arriving at such a decision, the cause of action was determined on the merit.
See: Badar Bee v. Noordin supra; P.B. Olatunde & Co. (Nig.) Ltd v. N.B.N. Ltd (supra); Ofem v. Ejukwa (1994) 2 NWLR (Pt. 326) 303 at 315: Usman v. Kusfa (1997) 1 NWLR (Pt. 483) 525; Nwaneri v. Oriuwa (1959) SCNLR 316; Alao v. Akano (1988) 1 NWLR (Pt. 71) 431; Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141.
There was no dispute between the parties on conditions numbers 1-3 above. Conditions numbers 4 and 5 are the grey areas. I already have set out in summary, submissions of respective counsel on these points. I tend to agree with the submission of learned SAN that nothing was determined to finality by the decision of the first trial court. Further, it is clear from the proceeding of the first trial court that the suit was not heard on the merit. This has even been made clearer in the decision of the first trial Judge as there were no issues or reliefs upon which the court adjudicated. A suit is said to be determined on the merit when it is based on the legal rights of the parties as distinguished from mere matters of practice, procedure, jurisdiction or form. A judgment on the merit is therefore a judgment that determines, on an issue, either of law or fact which party is right. See: Cardoso v. Daniel & Ors. (1986) 2 NWLR (Pt. 20) 1 at 45. It is my view therefore, that a ruling holding that the suit before the trial court did not disclose a cause of action or a reasonable cause of action cannot sustain a plea of estoppel per rem judicatem and I so hold. The first issue is accordingly resolved in favour of the respondent.
The second issue formulated by the appellants is complaining that the second trial Judge reviewed the decision of the first trial Judge of which he lacked jurisdiction as the two courts were of co-ordinate jurisdiction. Let me first and foremost look at, briefly, what amounts to a review of judgment. A review is a re-examination or re-consideration for purposes of correction of an issue decided. A review of judgment as I understand it is a reconsideration of that judgment by an appeal court with a view of correcting where the trial court went wrong. Such a review, which is an appeal in other words, must be initiated through the due process of law for the appeal court to act judicially. The second trial court was not sitting on appeal on the suit filed before it. The suit was like any ordinary suit filed before the court. A motion on notice was filed by the defendants/appellants. The motion was moved and a ruling delivered thereafter where the second learned trial Judge, stated his view on the reliefs asked in the motion paper. I think the trial Judge was not only right in doing so but was duly bound to make his views known on the motion before him. See F.C.M.B. Ltd v. Abiola & Sons Bottling Co. Ltd (1991) 1 NWLR (Pt. 165) 14; U.B.A. Ltd v. Achoru (1990) 6 NWLR (Pt. 156) 254; Nwokoro v. Onuma (1990) 3 NWLR (Pt.136) 22. This position is analogous to that of jurisdiction. A trial judge can assume jurisdiction or decline it only after having scrutinized the subject matter brought before him. See: Olaniyi v. Aroyehun (1991) 5 NWLR (Pt. 194) 652. For the avoidance of doubt, the second trial Judge stated inter alia:
“The part of the ruling reproduced above clearly shows that the statement of claim was struck out because it disclosed no reasonable cause of action and the suit dismissed. It is my humble view that the said ruling did not determine judicially one way or the other the interest of the parties because there was nothing on which to base such a determination …. In the final analysis, I hold that the ruling of my learned brother, the Honourable Justice Dan D. Abutu in suit No. FHC/S/2/90 delivered on the 12th December, 1991 at Sokoto does not constitute a res judicata to the present suit.”
I am in entire agreement with the above holding. I have no cause to fault it. In my view, the holding or ruling does not amount to a review of the previous ruling delivered by the first trial court on 12/2/91. Accordingly, I find no merit in the appeal and same is hereby dismissed by me. The respondent is entitled to N2,000.00 costs from the appellants.
Other Citations: (1998)LCN/0398(CA)
