S.O. Ntuks & Ors V Nigerian Ports Authority (2007)

LAWGLOBAL HUB Lead Judgment Report

I. F. OGBUAGU, J.S.C

This is an appeal against the decision of the Court of Appeal, Lagos Division, (hereinafter called “the court below”), delivered on 9th January, 2003, allowing the appeal of the respondent and setting aside the ruling of Akinsanya, J. of the Lagos State High Court sitting in Lagos delivered on 7th December, 2001 dismissing the suit of the plaintiff/respondent on the ground of estoppel per rem judicatam and remitting the matter to the High Court of Lagos for trial by another Judge.

Dissatisfied with the said decision the defendants/appellants, have appealed to this court on four (4) grounds of appeal which without their particulars, read as follows ”

1). The learned Justices of the Court of Appeal, erred in law when they held that the that subject matter in both suits are not the same.

2) The court below misdirected itself in law when it held that the respondent were Right to have commenced the process of setting aside the judgment in suit No. LD/1827/92 by way of substantive action in suit No. LD/1021/99.

3). The learned Justices of the court below erred in law then (sic)(meaning when) they adopted the Issues as formulated by the respondents, but failed to address the issue raised therein

4). The learned Justices of the court below erred in law when they held that the plea of estoppel per rem judicatam did not apply to the suit”

The facts of the case leading to the instant appeal briefly stated, are that sometimes in 1992, the appellants sued the respondent at the Lagos High court, in sitting in Lagos in suit No LD/1827/92 and in their amended statement of claim,-claimed the following reliefs:

“1. A declaration that all the staff particularly those plaintiffs who put in a service period of between 5 to 91/2 years with the defendant corporation are entitled to gratuity

2. A declaration that those plaintiffs who have served the defendant for a period of 10 to 141/2 years qualify for pension and redundancy benefits under the Pensions Act (sic)1990 as amended by circular ref No. B63216/S1/X/6I8 of 13th September, 1991 and the plaintiff’s condition of service.
3. A declaration that each of the staff is entitled to productivity bonus which was approved when the plaintiffs were in service.
4. A declaration that each of the staff are entitled to 28 loads as contained in their Condition of serviced
5. An order compelling the defendants to comply with the circular”

In his judgment delivered on 12th July 1996, Sahid, J., noted that the plaintiffs are ten (10) in number and at page 19 of the record the following appeared inter alia

“In the result only the 1st and the 2nd reliefs claimed succeed. The 3rd and 4th are dismissed.

Accordingly it is hereby declared:

1. That all the plaintiffs and the persons they represent who served the defendant Up to 5 years but not less than 10 years are entitled to gratuity

2 That all those plaintiffs and the persons they represent who served the defendant For a period of 10 years and above are entitled to pension and redundancy benefits Under the pensions act 1990 as amended by circular ref No B63216/SI/X/618 of 13th September 1991 and the plaintiff’s condition of service.”

And it is hereby ordered that the defendant do comply with the Federal Government Circular ref No. B63216/SI/X/618 of 13th September 1991 in accordance with the foregoing declaratory judgment.”

The defendant appealed to the court of Appeal, Lagos in appeal No. CA/L/425/97 note than at page 20 of the records, ‘the drawn order of 16th February, 1998, shows that the appeal, was dismissed for want of diligent prosecution and the failure of the appellant, to :file its brief of argument within the prescribed time/period. I also note that there was no appeal to this court against the said decision of the Court of Appeal Now in suit No. LD/102/99, the respondent sought as plaintiff in the said Lagos High Court to set aside the said judgment in suit No LD/1021/99 the respondent sought as plaintiff in the said judgment in suit No. LD/1827/92 on the ground of an alleged fraud. The writ of summons endorsement appear as follows:

Whereas the plaintiff claims against the defendants jointly and severally for an order setting aside wholly the judgment of the Lagos High Court in suit No. LD/1827/92 delivered on the 12th July as the judgment was obtained by fraud.”

In its statement of claim at page 33 of the records the particulars of fraud were stated. At page 35 thereof,I note that the defendants filed a statement of defense where they stated/averred inter alia that the suit was/is an abuse of court process and pleaded and relied on the doctrine of res judicata . They also averred the dismissal of the respondents said appeal and that the respondent’s said appeal and that the respondent’s suit is tantamount to asking the court, to sit on appeal on the first instance on the judgment of the court with co-ordinate jurisdiction. The defendants had filed an application/motion seeking/praying for the following:

“1. An order dismissing the plaintiff’s suit as being caught by the doctrine of res judicata in relitigating the-issues already decided between the same parties in suit No. LD/1827/92.

2. An order that this court lacks jurisdiction to hear and determine this suit.
3. An order that this action is an abuse of court process and
4. For further or other orders as this court may deem fit to make in the circumstance.”

In a considered ruling delivered on 7th December, 2001, Adesanya, J., upheld the plea and dismissed the said suit. Dissatisfied with the said decision, the respondent appealed to the court below that allowed the appeal and set aside the said ruling. It then remitted the matter to the said High Court for hearing by another Judge. It is against the said decision that the appellants have appealed to this court. The appellants, have formulated four (4) issues for determination, namely:

“1. Whether the court below was right in holding that the issues in suit No. LD/1827/92 and LD/1021/99 were not the same.

2. Whether the allegation of fraud in relation to admitted document now raised by the respondent in suit No. LD/1021/92 is not an after thought in the light of the decision of the court below in suit No. CA/Ll425/97 to defeat a successful plea of res judicata and entitle the respondent to file this new suit.
3. Whether the court below having adopted the issues formulated by the appellants ought to have pronounced on the effect of its earlier decision in suit No. CA/L/425/97 vis-a-vis this appeal in suit No. CA/L/99/2002 relating to same judgment.
4. Whether the court below was right to have provided a new platform for the respondent to challenge the decision of the trial court in suit No. LD/1827/92 in suit No. LD/1021/99 on an issue which was not challenged in its earlier appeal dismissed in suit No. CA/L/425/97.

2.1″ On its part, the respondent, formulated three (3) issues for determination, namely:

2.2 Whether a judgment that was obtained by fraud could create an estoppel particularly against a suit filed to set aside the same judgment.

2.3 Whether the subject matter in suit Nos. LD/1827/92 and LD/1021/99 are the same, for the purpose of creating a record for estoppel.

Whether the court can summarily dismiss a case founded on fraud without investigating the allegation of fraud.”

I will deal firstly with issue 1 of the appellants and issue 2.2 of the respondent. In a line of decided authorities, it is now firmly settled that where a court of competent jurisdiction, has settled by a final decision, the matters in dispute between the parties, none of the parties or his privy, may re-litigate that issue again by bringing a fresh action. The matter is said to be res judicata. The estoppel created, is one by record inter parties. Thus, a successful plea of res judicata, ousts the jurisdiction of the court in the proceedings in which it is raised. See the case of Ukaegbu & 7 ors. v. Ugorji & 3 Ors. (1991) 6 NWLR (Pt. 196) 127; (1991) 7 SCNJ. (Pt. 11) 244 at 254,256; Osurinde & 7 ors. v. Ajamogun & 5 Ors. (1992) 6 NWLR (Pt. 246) 156 at 183-184; (1992) 7 SCNJ. (Pt. 1) 79 at 106 and Alhaji Ladimeji & Anor. v. Salami & 2 Ors. (1998) 5 NWLR (Pt. 548) 1 at 13; (1998) 4 SCNJ 1 – per Ogundare, J.S.C of blessed memory). The principle of res judicata, applies where a final judicial decision has been pronounced by a judicial tribunal/court, having competent jurisdiction over the cause or matter in litigation and over the parties thereto, disposes once for all, of the matters decided so that they cannot afterwards, be raised for re-litigation between the same parties or their privies. See Agu v. lkewibe (L991) 4 SCNJ 56; (L991) 3 NWLR CPt. 180) 385. This is why it is firmly established that estoppel per rem judicatam or estoppel of record, is said to arise, where an issue of fact, has been judicially determined in a final manner, between the parties or their privies by a court or tribunal of competent jurisdiction in the matter and the same issue, comes directly in question in a subsequent proceeding between the parties or their privies. See recently, the cases of Ebba & 3 Ors. v. Chief Ogodo & 2 Ors. (2000) 6 SCNJ 100 at 1I7,121;(2002) 10 NWLR (Pt. 675) 387 – per Ogundare, J.S.C and Ajiboye v. Alhaji Ishola (2006) 6 SCNJ 180 at 190; (2006) 13 NWLR (Pt. 998) 628 -per Onnoghen, J.S.C.

In order to satisfy such a plea of res judicata,’ the parties or their privies as the case may be, are the same in the present case as the previous case; the issues and: subject matter are the same in the previous case as in the present case; the adjudication in the previous case, must have been given by a court of competent jurisdiction and the previous decision, must have finally, decided the issues between the parties. See the cases of Fadiora v.Gbadebo ( 1978) 3 S.C. 219; (1978) 1 LRN 106; Ekpoke v. Osilo (1978)’6-7 S.C.187; Ezenwa v. Kareem (1990) 3 NWLR (Pt. 138) 258; (1990) 5 SCNJ 165 at 169-170; Chief Adomba & 3 Ors:v.Odiese & 3 ors. (1990) I NWLR (Pt. 125) 165 at 178; (1990) 1SCNJ 135 and: recently; Chief Blakk & 2 Ors; v.Long John v. Chief lboroma & Anor: , (vice versa) (2005) 10 SCNJ 1 at 8 – 9; (2005)10 SC1(2005)17 NWLR (Pt. 953)1- per Oguntade, J.S.C Ajiboye v. Alhaji Ishola (supra) and many of he cases’s including- the cases of Omidokun Omoniyi v. Omotosho (1961) All NLR 304, (1961) 2 SCNLR ’57; and Omeazu Chukwura v A .J Ofochebe (1972) 12 SC 189 at 195 cited and relied on in the respondent’s brief. It is’ said to be an application or public policy that no man shall be vexed twice for one and the same cause on the same issue. See the case of Ekennia Nkpakara & 7 ors (1997) 5 SCNJ 70 at 83;(1997) 5 NWLR Pt. 504) 152.) This is why once has been raised and distinctly decided between he parties then as a general rule, neither party can be allowed to fight the issue all over again. See the cases of Fidelitas Shipping Co. Ltd. V. Exportchled (1996) 1 Q.B. 630; Lawal v. Chief Dawodu & Anor. (1972) 1 All NLR (Pt. 2) 270 at 280; Fadiora v. Gbadebo (supra) and Cardoso v. Daniel & Ors. (19986) 2 NWLR (Pt. 20) 1 at 17.

Having regard to the above firmly established principles, in the present case, it is stated in the respondent’s brief in paragraph 3.3 of the said brief, it is stated as follows:

“In the present suit, the plaintiff’s respondent’s claim against the defendant appellant jointly and severally is for an order setting aside wholly the judgement of the Lagos High Court in suit No. LD/1827/92 delivered on the 12th of July, 1998 as the judgement was obtained by fraud”.

Which judgment I or one may ask. It must be stressed and of: course borne in mind that, the judgment, is that of Sahid, J. which was a well considered judgment which the respondent, appealed against and the appeal was dismissed. There was no further appeal by the respondent: to this court. The effect in law, is that the said judgment of the High Court by Sahid, J. was final and remained valid and subsisting. The said judgment became binding on all the parties including the respondent. The next question by me or one, is what was the subject matter that gave rise to the said judgment. In other words, what was the issue in controversy The answer; is that it was about the payment of gratuity and pension to the appellants and those, they represented. The trial court found in favour of the appellants. The respondent has not challenged the jurisdiction or the competency of the court or the, learned trial Judge, to entertain and determine the case. The third question is, who are/were the parties in that suit and the present suit of the respondent The answer, is that the parties are the same. In effect, all the ingredients for the defence of res judicata to succeed, are present in this case leading to, this appeal. I have shown above, the statement in the respondent’s brief and it is bound by it. The respondent, concedes that it is pertinent to note that the judgment upon which the appellants based their plea res judicata

– suit No. L/1827/92 delivered on 12th July, 1996, is the same judgment the; respondent, seek an order of the same court with coordinate jurisdiction, to set aside.

I note that at page 135, paragraph 1.6 of the appellant/respondent’s brief in the Court below, this same statement appears -i.e.

1.6 It is, pertinent to note at this point that the judgment, upon” which the defendants. ,based their plea of res judicata, LD/1827/92 delivered on the ,12th July, 1996, is the same judgment the plaintiffs seek to, set aside in this suit.”

By these admissions both at the court below and in this court, I am bound to rest this appeal ,in, favour of the appellants. What is admitted, it is settled, need no further proof .For the, avoidance, of doubt, let me, emphasize the point.. In suit No. LD/1827/92, the appellants, were the plaintiffs while the respondent, was the defendant. In suit No. LD/1021/99, the position, was reversed. While the plaintiff was/is the respondent, the appellants were/are the defendants. Both the writ of summons and the statement of claim and the statement of defence in suit No. LD/1827/92 speak eloquently about this fact. In the appeal of the respondent, the suit No. is CA/L/425/97. In suit No. LD/1021/99, the order sought, is for the setting aside of the decision/judgment of Sahid, J. for the payment of pension and gratuity in favour of the appellants. The issue, is the result of a subsisting judgment. As noted by Adesanya, J., in his/her said ruling at page 41 of the records, rather than the respondent appeal against the said decision of the Court of Appeal dismissing its appeal, it filed the said suit which she rightly held in my respectful view, is an abuse of the process of his/her court. The application to set aside the said judgment, should have come/filed before the said appeal. The effect of the dismissal of the appeal, is that the judgment of the trial court, subsists. To conclude these issues, in the case of Ord v. Ord (1923) 2 K.B. 432, the following appear inter alia: “If the res – thing actually and directly in dispute – has been already adjudicated, of course by a competent court, it cannot be litigated upon.” See also the cases of Bell v. Holmes (1956) 3 All E.R. 449 at 454 and Hunter v. Steward (1861) De G.F.& J. 168; 45 E.R. 1148 at 1152 where in the later case, the following appear, inter alia: “One of the criteria of the identity of two suits, in considering a plea of res judicata, is the inquiry whether the same evidence would support both.” The rule of res judicata, is derived from the maxim of nemo debet bis vexari pro eadem causa (No one should be twice troubled for the same cause). Of course, it is the causa that matters and therefore, a plaintiff cannot, be formulating a fresh action/claim, re-litigate the same cause. I think I have “flogged” the point. I therefore, resolve issues 1 and 4 of the appellants, and issue 2.2 of the respondent, in favour of the appellants.

Now, coming to the alleged issue off raud, Great! All the decided authorities cited and relied on in the respondent’s brief in respect thereof, are firmly settled. See also the cases of Flower v. Lloyd (1877) 6 Ch. 297 and Talabi v.Adeseye (1973) NMLR 8 at 17, (1972) 8-9 SC 20 – per Coker, J.S.C, just to mention but a few. But I will add briefly, on the issue of plea of fraud. But before that, the issue is founded on exhibits P4 and D1 which were tendered, admitted into evidence without any objection by any of the parties. The said exhibits were issued by the Ministry of Establishment and Management Services for the implementation by the respondent.

I note that on 13th February, 2007 when this appeal came up for hearing, the learned leading counsel for the respondent – Balogun (Mrs.), stated that the Schedule or Act, cannot be a fraud. She stated inter alia, as follows: “I admit that the exhibit was tendered and that we did not object but we thought it will go for trial. We thought that fraud was the substratum of the case.” I also note that this issue of fraud was raised many years (i.e. three (3) years after the documents were tendered and admitted in evidence without objection as I noted before in this judgment and it was after the said judgment of the trial court. In respect of what Mrs. Balogun told the court, I observe that he/she did not state and even in their brief, that the documents, were inadmissible in evidence. In any case, it is now firmly settled that where in the trial court, a document or evidence was not strictly admissible and not being that on which the court can properly act, if the person against whom it is read does not object, but treats it as admissible then, before the Court of Appeal, he is not at liberty to complain of the order on the ground that the evidence or document was not admissible. See the cases of Akunne v.Ekwuno& Ors. (1952) 14 WACA 59 at 60 referring to the case of Gilbert v. Endean (1878) 9 Ch.D. 259 at 269 – per Cotton, L.J.; Chief Bruno Etim & Ors. v. Chief Okon Udo Ekpe & Anor. (1983) 3 S.C. 12 at 36 – 37; (1983) 1 SCNLR 120.

I will add quickly, that it is also settled that if a document is however, wrongly admitted/received in evidence before a trial court, an appellate court, has the inherent jurisdiction, to exclude it although counsel at the lower court, did not object to its going in. See the cases of Alashe v. Ilu (1964) 1All NLR 390; Mallam Yaya v.Mogoga 12 WACA 132 at 133; and Kale v. Coker (1982) 12 SC 252. Also settled, is that where a document is wrongly admitted in evidence, its wrong admission per se is not sufficient to vitiate the judgment. See section 227(1) of the Evidence Act and the cases of Ajayi v. Fisher (1956) 1 FSC 90 at 92, (1956) .SCNLR 279; Ugbala v. Okorie & Ors (1975) 9NSCC 429; (1975) 12 SC 1; and Idundun v. Okumagba (1976) 9- 10 SC 277 a 245 just to mention but a few.

I have deliberately gone this far, because of the reliance of the respondent on the said exhibits as a basis for the plea of an alleged fraud.

I will now deal with issue 2 of the appellants and issue 2.3 of the respondent which was the same issue and argument raised in the court below. The same arguments proffered in its brief in the court below, are substantially if not in fact the same arguments as in its brief in this court. I observed and as also conceded at page 4 in the respondent’s brief that the respondent filed a statement of claim averring fraud in respect of the said exhibit 4. The appellants after service of same, filed a motion on notice dated and filed on 29th January, 2001, praying for an order dismissing the respondent’s suit as being caught by the doctrine of res judicata and that the court lacked jurisdiction to hear and determine the said suit and before sought an order that the action is an abuse of court process. The trial court, struck out the motion on the ground that it amounted to a demurer. The appellants then filed a statement of defence where in they raised the same plea of res judicata and averring that the action, was an abuse of court process. It was a special defence or pursuant to Order 42(1) of the High Court of Lagos State (Civil Procedure) Law, 1994, challenging the competence of the suit and the jurisdiction of the trial court to entertain it. The appellants followed their said statement of defence with a motion on notice dated 13th March, 2001 and raised the same objection to the respondent’s suit.

I note that the respondent filed a notice of preliminary objection dated 21st March, 2001 praying for the dismissed of the application on the ground that the court had “dismissed” a similar application and therefore, that the court lacked jurisdiction to entertain same. That if the appellants were not satisfied with the said ruling, that the only option open to them, was to appeal and that the court could not act as an appellate court on its own ruling. (see pages 90 to 92, 107 to 108 of the records). (supplementary). I have noted earlier in this judgement, that in the respondent’s brief, it is conceded that the earlier application of the appellants was struck out, contrary to the averment in paragraph (b) of its affidavit in support of its own

As I also noted hereinabove, the trial Judge – Akinsanya, J., in a considered ruling; upheld the plea or objection, and dismissed the respondent’s said suit. It is therefore, with respect, misleading to say the least, to state as has appeared under this issue and to submit that the learned trial Judge,

“summarily dismissed a case founded on fraud without investigating the allegation of fraud.”

I also note that the court below, with respect, on this misleading and misconceived statement, gave its decision setting aside the decision of the trial court. Certainly, the said ruling, dealt with the objection(s) and came to a final decision. Now, it is firmly settled in a number of decided authorities, that a point of law, can be raised on a preliminary objection by a party to a suit, if the point of law, will be decisive of the whole litigation. Since demurer has been abolished by the Rules/Law of the Lagos State High Court, any defence to a suit, raised in the statement of defence, can be disposed off. Under Order 23 rule 2, any party, shall be entitled to raise by his pleading, any point of law and any point so raised, shall be disposed of by the trial Judge.

Rule 3, provides that if in the opinion of the court, the decision of such point of law, substantially dispose of the whole action, or of any distinct cause of action, ground of defence, the court or Judge may thereupon dismiss the action. These Rules are clear and unambiguous. Therefore, where there is a point of law which if decided one way, is going to be decisive of the whole litigation (as in the instant case leading to this appeal), it is settled that advantage ought to be taken of the facilities afforded by the Rules of court, to have disposed of at the close of pleadings or very shortly afterwards the said point of law. See the case of Messrs NV Saheep & Anor: v. The MV “S. Araz.” & Anor. (2000) 12 SCNJ 24 at 50; (2000) 15 NWLR (Pt. 691) 622 – per Karibi-Whyte, J.S.C, citing the cases of Everett v. Ribbands (1952) 2 Q.B. 198 at 206; Addis v. Crocker (1961) 1 Q.B. 11; and Kingsley Madu v.Victoria Onunoju & Anor: (1986) 3 NWLR (Pt.26) 23 just to mention but a few. See also the case of Yeorman Credit Ltd. v. Latter (1961) 2 All E.R. 281 at 299. This is what happened in this case. The learned trial court, was, in my respectful view, right in his/her approach to the objection and in his/her final decision. I agree with him/her that the present action of the respondent, was/is, an abuse of the court’s process. Raising of the issue of fraud, with respect, was an afterthought, a fluke or ruse by the respondent realizing or knowing fully well years after, that its appeal, had been dismissed. Since he did not challenge the said decision in suit LD/1827/92 by filing an application to set it aside on the ground of alleged fraud and voluntarily decided or opted to appeal against it, having lost the appeal and it did not further appeal to this Court,the respondent, is estopped from challenging the said decision through his said suit. Let me emphasize that a defendant like the appellants, who conceives that ex facie, he has a good ground of law which if raised, will determine the action even in limine, is entitled to raise such ground of law. See the case of Martins v. Administrator General., Federation & Anor: (J 962) 1 All NLR 120, (1961) 1 SCNLR 209. The appellants did exactly this and won. The court below, with profound humility and respect, was wrong to start considering any imagined fraud which ought to be investigated. It is with respect, really a misconception. There was no need to go into that issue having regard to the state of the law about raising an objection as to the competence of the respondent’s suit which objection, was upheld by the trial court. I therefore, resolve this issue against the respondent. I agree with the appellants that the said allegation of fraud, is an after-thought and in fact, a gimmick to say the least. Having dealt with the relevant issues in this appeal, it will serve no useful purpose in my dealing with issue 3 of the appellants and issue 2.1 of the respondent. They are non-issues from all that I have said above in this judgment. In conclusion, this appeal is meritorious and it succeeds. I allow it and hereby set aside the said decision of the court below. I affirm the said decision of the said trial court. Costs follow the event. The appellants are entitled to costs in the court below which I assess and fix at N5,000.00 (five thousand naira) and N10,000.00 (ten thousand naira) costs in this court payable to them by the respondent.

Note: I note that in the respondent’s brief, the plaintiffs/ appellants are erroneously, described as “defendants/appellants” while the respondent, is described as “plaintiff/respondent.”

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SC.190/2003