Sunday Ofoma & Anor V. Anthony Ifeanyi Obinwe & Anor (2016)
LawGlobal-Hub Lead Judgment Report
TOM SHAIBU YAKUBU, J.C.A.
The appellants were the 5th and 6th defendants at the High Court of Justice, Anambra State, holden at Onitsha, in the suit No.0/257/2007. In the said suit, the respondents had claimed the following reliefs:
(a) A declaration that the sale by the 1st, 2nd, 3rd and 4th Defendants of the land in dispute to the 5th Defendant without the knowledge and consent of the Plaintiffs is void.
(b) An order of this Honourable Court setting aside the sale of the land in dispute by the 1st, 2nd, 3rd and 4th Defendants to the 5th Defendant.
(c) A declaration that the 5th Defendant lacked the capacity to sell the land in dispute to the 6th Defendant.
(d) An order setting aside the purported sale of the land in dispute by the 5th defendant to the 6th defendant.
(e) A declaration that, the reversionary interest of the Obinwe family in the land in dispute is still subsisting and shall become vested in the said family upon the expiration of the last lease entered between Vincent Nwobu Obinwe (for Obinwe family) and the 5th defendant.
(f) N200,000,000.00 being general and punitive damages.
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The appellants, had filed a motion on notice No. 0/868m/2012 at the Court below praying that the suit No. 0/251/2007 be struck out or dismissed.
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The grounds for the application are that:
?(1) The Plaintiffs have no locus standi nor legal interest worthy of protection in the suit filed by the Plaintiffs.
(2) By a valid and subsisting judgment of the High Court of Anambra State in Suit No. 0/307/2005 BETWEEN PATRICK OBINWE vs. CHIEF AUGUSTINE OFOMA ANOR. Delivered on 30th day of October 2006, by Honourable Justice J. I. Nweze, it was held in respect of the land in dispute NO. 1 (now 3) Johnson Street Onitsha that
?It is clear the facts of this case that the Obinwe family can no longer claim an interest in the land in dispute?
(3) The Plaintiffs as members of Obinwe family of which late Vincent Nwobu Obinwe was a member cannot sue and claim any interest in respect of No. 1 (now 3) Johnson Street Onitsha.
(4) The Plaintiffs by the principles of issue estoppel and estoppel per rem judicatam, cannot re-litigate over the same land against the Defendants.
(5) The suit by the Plaintiffs is in the circumstances an
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abuse of the process of the Court.
(6) The Court has no jurisdiction in the circumstances to entertain the above suit.?
There were affidavits, counter affidavits and further affidavits filed by the appellants and the respondents in respect of the appellants? motion on notice. So also, written address were filed and exchanged between the parties. However, during the pendency of the hearing and determination of the appellants? motion on notice aforementioned, the respondents vide a motion on notice filed on 24th May, 2013 with No. 0/795/2013 sought the leave of Court to amend the plaintiffs? statement of claim. There was an affidavit and a written address filed in support of the aforementioned motion on notice No. 0/795/2013. The same was moved and having not been opposed by the appellants, it was granted. Thereafter, the appellants? motion on notice No. 0/868m/2012 was argued and opposed by the respondents. The learned trial judge in his ruling, dismissed the appellants? motion on notice No. 0/868m/2012. This was on 4th June, 2013.
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The appellants, not being satisfied with the decision against them, filed a
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notice of appeal containing five grounds on 17th June, 2013.
?In order to prosecute the appeal, the appellants? brief of argument, settled by O. J. Nnadi, Esq., SAN, filed on 28th October, 2014 was deemed by this Court, as properly filed and served on 11th February, 2015. In it, he nominated four issues for the resolution of the appeal, inter alia:
(1) Whether the trial judge was right midway in the argument of the motion on notice challenging the suit filed by the Plaintiffs/Respondents for inter alia being incompetent and for lack of jurisdiction of the Court to entertain the motion for the amendment of the Statement of claim which amendment rather than cure the suit by the additional reliefs sought clearly showed that the Court had no jurisdiction to entertain the suit.
(2) Whether the Court was right in holding that the decision of Nweze J. In suit No. 0/307/2005 was not binding on the Court being a Court of coordinate jurisdiction when the suit was not cited as an authority to be followed by the trial Judge but relied upon for the plea of issue estoppel, abuse of process of Court, lack of locus standi to institute the suit, res
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judicata, finding of fact and to show that the Respondents have no interest worthy of protection by the plaintiffs/Respondents and therefore have no locus standi to institute the suit. Ground 2 of the Notice of Appeal.
(3) Whether the trial Judge correctly interpreted and applied Order 22 Rules 1 and 2 of the High Court of Anambra State (Civil procedure) Rules 2006 which deals with demurrer, when the Court dismissed the Appellants? motion on notice in the ruling of the Court and at the same time held that suit No. 0/307/2005 does not create res judicata against the parties in suit No. 0/251/2007 (the subject of this appeal) (Grounds 3 and 4 of the Notice of Appeal).
(4) Whether the trial Judge was right on the face of the relief in the amended claim to order for pre-trial conference without allowing or giving the Appellants opportunity to amend their statement of Defence.
The respondents? brief of argument dated 19th March, 2015 and filed on 20th March, 2015 was deemed by this Court as having been properly filed and served on 23rd March, 2015. Three issues were nominated therein for the determination of the appeal, to wit:
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(1) Whether the learned trial judge rightly struck out Motion No. 0/868m/2012? (Ground 1)
(2) Whether the trial judge was right on the face of the reliefs in the amended claim to order for pre-trial conference in view of the circumstances of this case.
(3) Whether the issue of estoppel was properly raised in Motion No.0/868m/2012?
The appellants? reply brief dated 30th March, 2015 was filed on 1st April, 2015.
Having perused the motions on notice No. 0/868m/2012 and 0/795m/2013; the ruling of the Court below on each of them; the grounds of appeal against the ruling of 4th June, 2013 and the issues for the determination of the appeal, formulated by each counsel herein; I feel impelled to adopt the first three issues nominated by the appellants for the resolution of the appeal. They are to my mind, more concise and encompassing. I adopt them accordingly.
Issue 1
The contention of the appellants? learned senior counsel is to the effect that the learned trial judge ought not to have entertained the motion on notice No. 0/795m/2013 at the instance of the respondents, which sought for an amendment of their statement of claim
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when the appellants? motion on notice No. 0/868m/2012 which amongst other prayers challenged the jurisdiction of the Court to entertain the respondents? claim in suit No. 0/251/2007, had not yet been determined.
On his part, the respondents? learned counsel submitted that since there was no objection to the application No. 0/795m/2013 for amendment of the respondents? statement of claim, the same was rightly granted by the learned trial judge. Furthermore, he contended that as at 4th June, 2013, the two motions No. 0/868m/2012 and 0/795m/2013 were ripe for hearing and since there was no opposition to the latter, the same was granted.
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Resolution of issue 1
Jurisdiction is the authority that a Court has in order to decide any matter laid before it or even take cognisance of matters presented before it in a formal way for its decision on such matters. Therefore, where a Court lacks the jurisdiction to try any matter presented before it, such a decision amounts to nothing as it will be tantamount to an exercise in futility. To underscore the criticality and quitessence of jurisdiction to adjudication, the Supreme Court in a
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plethora of decided authorities, one of which is Hon. Ehioze Egharevba v. Hon. Crosby Osadulor Eribo & Ors (2010) 9 NWLR (pt. 1199) 411; (2010) LPELR ? 9716 (SC); (2010) 3 SCNJ (pt. 11) 441 at 453 ? 454, re-echoed the law succinctly, per Adekeye, JSC that:
?Jurisdiction is a term of comprehensive import embracing every kind of judicial action.
It is the power of a Court to decide a matter in controversy and presupposes the existence of a duly constituted Court, with control over the subject matter and the parties. Jurisdiction also defines the power of the Court to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which judges exercise their authority. Jurisdiction is equally to Court, what a door is to a house. That is why the question of a Court?s jurisdiction is called a threshold issue, because it is at the threshold of the temple of justice. Jurisdiction is a radical and fundamental question of competence, for if the Court has no jurisdiction to hear the case, the proceedings are and remains a nullity however well-conducted and brilliantly decided they might have been. A
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defect in competence is not intrinsic but rather extrinsic to adjudication. Oloba v. Akereja (1988) 3 NWLR (pt. 84) pg. 508; Oloriode v Oyebi (1984) 1 SCNLR pg. 390, Ezomo v. Oyakhire (1985) 1 NWLR pt. 2 pg. 105; Petrojessica Enterprice Ltd v. Leventis Technical Co. Ltd (1992) 2 SCNLR pg. 341, Barclays Bank v. Central Bank of Nigeria (1976) 6 SC pg. 175, African Newspapers of Nigeria v. Federal Republic of Nigeria (1985) 2 NWLR pt. 6 pg. 137, Adeleke v. OSHA (2006) 16 NWLR pt. 1006 pg. 608; Attorney General Anambra State v. A?G Federation (1993) 6 NWLR pt. 302 pg. 692, Saleh v. Monguno (2003) 1 NWLR pt. 801 pg. 221. The issue of jurisdiction being fundamental can be raised and challenged at any stage of the proceedings in the lower Court, in the Court of Appeal or even for the first time in the Supreme Court. The issue of jurisdiction being so pivotal can be raised suo motu by the Court so long as the parties are accorded the opportunity to react to the issue.?
The eminent jurist and revered Mohammed Bello, C.J.N. (now of blessed memory) in the judicial words on marble on jurisdiction, in Chief Utuedo Uttih & 6 Ors v. Jacob U.
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Onoyivwe & 5 Ors (1991) 1 SCNJ 25 at 49, had stated that:
?Jurisdiction is the blood that gives life to the survival of an action in a Court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it, would be an abortive exercise.?
The reason for this analogy is not farfetched. It is because the life of the flesh is in the blood. In other words, jurisdiction is the life in the action, placed before the Court, for adjudication.
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I have perused the record of appeal, with respect to the proceedings at the Court below on 24th April, 2013, whereat, Mr. Anijah, for the Plaintiffs now respondents, rightly informed the Court to the effect that the motion on notice questioning the jurisdiction of the Court be taken first, that is the motion No. 0/868m/2012. Mr. Nnadi, SAN for the appellants then started to move the said motion which had to be adjourned at the instance of Mr. Anijah, to 4th June, 2013 for continuation of hearing. However, on that day instead of a continuation of the hearing of the motion
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No. 0/868m/2012 which touched on the jurisdiction of the Court, Mr. Anijah was allowed to take his motion on notice 0/795m/2013 for amendment of respondents? statement of claim, which was granted. I think that was the error committed by the learned trial judge. He ought to have determined the motion No. 0/868m/2012 which he had started hearing on jurisdiction first, before calling on Mr. Anijah to move the motion No. 0/795m/2013 for the amendment of the respondents? statement of claim. That is, the motion on notice No. 0/868m/2012 bordering on the jurisdiction of the Court to entertain the suit No. 0/251/2007, had a primacy of place and priority over the motion on notice No. 0/795m/2013, for amendment of respondents? statement of claim. Ndaba (Nig) Ltd v. Union Bank Nig. Plc (2009) 13 N. W. L. R. (pt. 1158) 231 at 270.
Issue 1 is resolved in favour of the appellants.
Issues 2 and 3 together.
I have considered the submissions of the learned senior counsel to the appellants and those of the respondents? counsel on his issue 3.
Now, it is clear that the judgment of J. I. Nweze, J., in suit No. 0/307/2005, between
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Patrick Obinwe v. Chief Augustine Ofoma & Anor, delivered on 30th October, 2006 was with respect to the land situate at No. 1 Johnson Street, Onitsha. The said judgment is at pages 45 to 47 of the record of appeal. Can it be said that the cause of action in the suit No. 0/307/2005 and the parties in it are the same with the cause of action in the suit No. 0/251/2007 for the doctrine of estoppel per rem judicatam to operate in favour of the appellants as contended by the learned senior counsel for the appellants?
In law, estoppel is an admission or something which the law views as equivalent of an admission. By its very nature, it is so important and conclusive that the party whom it affects will not be allowed to plead against it or adduce evidence to contradict it. Yoye v. Olubode (1974) All NLR 657; Ukaegbu v. Ugoji (1991) 6 NWLR (pt. 196) 127; Koiki v. Magnusson (2001) FWLR (pt. 63) 167. It is a common law principle which has gained statutory acceptance in Nigeria, such as Section 169 of the Evidence Act No. 18 of 2011. It forbids a person or party who having shown that he agrees with a state of affairs, to later turn round and disclaim his act or
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omission. Hence both in common and statutory law, such conduct is not permitted. For example in Section 151 of the Evidence Act, 2004 which is in pari materia with Section 169 of the Evidence Act, 2011, the use of the phrase that:
?neither he nor his representative in interest shall be allowed? is emphatic. This was explained better by the apex Court in Ude v. Osuji (1998) 10 SCNJ 75 thus:
?The principle of estoppel by conduct is that where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relation between them and to be acted upon accordingly, then once the other party had taken at his word and acted on it, then the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance has been made by him. He must accept their legal relation as modified by himself even though it is not supported in point of law by any consideration, but only by his word or conduct. See Combe v. Combe (1951) 1 All ER 69 at 770.
There are principally, two kinds of estoppel. In Osunrinde &
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Ors v. Ajamogun & Ors (1992) 7 SCNJ 79; (1992) LPELR ? 2819 SC at 39, his Lordship, Ogundare, JSC (now of blessed memory) succinctly stated, to wit:
?Now, there are two kinds of estoppel by record inter partes or per rem judicatam as it is generally known. The first is usually referred to as ?cause of action estoppel? and it occurs where the cause of action is merged in the judgment, that is transit in rem judicatam. There is however, a second kind of estoppel inter partes and this usually occurs where an issue has earlier on been adjudicated upon by a Court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in these circumstances. ?issue estoppel arises.
Furthermore, on the effect of estoppel, his Lordship, at page 46 of the report, stated:
?The general rule of law undoubtedly is that no person is to be adversely affected by a judgment in an action to which he was not a party, because of the injustice in deciding an issue against him in his absence. But this general rule admits of two exceptions, one
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is that a person who is in privity with the parties, a ?privy? as he is called is bound equally with the parties, in which case, he is estopped by res judicata: the other is that a person may have so acted as to preclude himself from challenging the judgment in which case he is estopped by his conduct.?
Indisputably, for the doctrine of estoppel to operate in any particular case, it must be established that,
(i) The parties (or their privies as the case may be) in the previous case are the same as in the present case;
(ii) The issues and the subject matter or res litigated upon in the previous case is the same as in the subsequent or present case;
(iii) The previous action must have been determined by a Court of competent jurisdiction;
(iv) The said decision in the previous case, must have finally decided the issues between the parties.?
The four fold requirements for the applicability of the doctrine of estoppel, must co-exist, such that the failure of one damnifies its efficacy.
I have perused the judgment in suit No. 0/307/2005 and it is clear to me that the suit at the instance of the plaintiff therein was
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not in a representative capacity, as it is in the suit No. 0/251/2007. Furthermore, whereas the cause of action in the suit No. 0/307/2005 was with respect to some declarative reliefs touching on a leasehold contract on the Estate known and called as No. 1 Johnson Street, Onitsha and the sale or alienation of the same by the 1st defendant Chief Augustine Offormah to an unnamed 2nd defendant, therein, the cause of action in the suit No. 0/251/2007 is with respect to some declarative reliefs bordering on the sale of the land situate at No. 1 (now No. 3) Johnson street, Onitsha by the 1st, 2nd, 3rd and 4th defendants/respondents to the 5th defendants/respondents Augustine Ofoma. Furthermore, that the 5th defendant lacked the capacity to sell the said land to the 6th defendant, Chukwuma Njigha (Elias Okenku). It is clear to me that the suit NO. 0/251/2007 is more encompassing and holistic than the suit No. 0/307/2005 which cannot be said to have finally decided the controversies between the parties. Therefore, apart from the ingredient, that is that the previous suit No. 0/307/2005 was decided by a Court with competent jurisdiction that decided it, the three other
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requirements, analysed above, for the applicability of the doctrine of estoppel per rem judicatam, are non-existent, in respect of the instant suit No. 0/251/2007. I do not therefore, have any difficulty in resolving issues 2 and 3 against the appellants, with the exception that the question of jurisdiction, being a threshold issue can be raised at any time by any party or suo motu by the Court, hence it is not limited by any rule of Court with respect to demurrer proceedings. Indeed, the Supreme Court in Okereke v. Yar?Adua (2008) All F.W.L.R. (pt. 430) 626 at 660, per Tabai, JSC, was emphatic, when he stated that:
?The issue of jurisdiction cannot therefore be subjected to the dictates of any Statute, including rules of Court.?
Further see: All Progressive Grand Alliance (APGA) v. Anyanwu (2014) All F.W.L.R. (pt. 735) 243 at 256 (SC), to the effect that whenever there is a challenge to the jurisdiction of the Court to hear any matter, it must be dealt with and resolved first, before the Court takes any further step in the proceedings.
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In sum, the appeal succeeds in part only in respect of issue 1 but fails on issues 2
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and 3.
In consequence of the above, the ruling of V. N. Umeh, J., in re-suit No. 0/251/2007 delivered on 4th June, 2013 with respect to the motion on notice No. 0/795/2013 is hereby set aside. Hence, the suit is remitted to the Chief Judge, of Anambra State, for a re-assignment to another judge of that Court, for a trial de novo.
Each side to bear own costs.
Other Citations: (2016)LCN/8946(CA)
