CHIEF ADIO LIASU & ORS V. ALHAJI MUDASHIRU SALAU & ORS
(2011)LCN/4476(CA)
In The Court of Appeal of Nigeria
On Friday, the 15th day of April, 2011
CA/L/18/09
RATIO
PRELIMINARY OBJECTION: WHEN IS IT SATISFACTORY TO RAISE A PRELIMINARY OBJECTION
The procedure by way of preliminary objection on point of law is generally only satisfactory when whichever way it is decided, it is conclusive of the whole matter before the Court. See AINA V. TRUSTEES OF THE NIGERIA RAILWAY CORPORATION PENSION FUND 1970, 1 ALL NLR.281. PER RITA NOSAKHARE PEMU, J.C.A
LOCUS STANDI: MEANING OF THE TERM “LOCUS STANDI”
LOCUS STANDI denotes legal capacity to initiate proceedings in a Court of Law. Right of a party to appear and be heard on the question before any Court or tribunal. – See ADESANYA V. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA & ANOR 1981-. S.C. 112 at 748 at 128-129. PER RITA NOSAKHARE PEMU, J.C.A
AMENDED PLEASING: WHEN DOES AN AMENDED PLEADING TAKE EFFECT
It is trite that an amended pleading speaks from the date of the original pleadings – See ROTIMI V. MCGREGOR 7974 S.C.133. GOV. OF MIDWEST Y. MID MOTORS 1977 10 S.C.43. PER RITA NOSAKHARE PEMU, J.C.A
JURISDICTION OF THE COURT: WHAT DETERMINES THE JURISDICTION OF THE COURT TO ENTERTAIN A SUIT
It is the claim that determines jurisdiction. IZEUKWE V. NNADOZIE 14. W.A.C.A.362 at 363. ADENUGA V. ODUMERU 2001. FWLR Pt. 37, 7056. Ratio 5. ADEYEMI V. OPEYORU 1976 9-10 SC 37 at 57, TUKUR V. GOVERNMENT OF GONGOLA STATE 1980. 4, NWLR Pt. 117 at 577.(sic) EGBUONU V. BRTC. 1997 12 NWLR Pt. 537 at 43. PER RITA NOSAKHARE PEMU, J.C.A
ISSUE ESTOPPEL: CIRCUMSTANCES WHERE THE RULING OF A COURT WILL OPERATE AS ISSUE ESTOPPEL ON A SUBSEQUENT PROCEEDING
From records, the parties in this case are the same, so are the issues involved. The Ruling of Okuwobi J. therefore operates as issue estoppel having been adjudicated upon by a Court of coordinate jurisdiction. It is trite that Issue Estoppel binds the parties as well as the Court. See WITT V. BUSCH LTD V. DALE POWER SYSTEM PLC 2007.17 NWLR Pt. 1062. 1 at 25-26 paragraphs e-b. FRANCIS SHAWN & ANR V AFRIBANK NIGERIA PLC. 2002.17 NWLR Pt.795 at 185. PER RITA NOSAKHARE PEMU, J.C.A
RES JUDICATA: IMPLICATION OF THE DEFENCE OF RES JUDICATA; WHETHER THE DOCTRINE OF RES JUDICATA APPLIES IN ALL COURTS OF COMPETENT JURISDICTION
Where res judicata is pleaded by way of estoppel to an entire cause of action, 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 question of law as well as findings of fact. BANAR BEE V. HABIB MERICAN NOORDIN 1909. AC 615. Res Judicata is no technical doctrine. It has been applied to an order, interlocutory in form, which was meant to be a declaration of the rights (as in this case) of the parties See PEARETH V. MARRIOT 1882 22 CH. D. 182. CA; BANAR BEEN v. HABIB MERICAN NORDIN (supra). The doctrine applies equally in all Courts, and it is immaterial in what Court the former proceedings was taken, provided only that it was a Court of competent jurisdiction or what form the proceedings took, provided it was really for the same cause. PER RITA NOSAKHARE PEMU, J.C.A
JUSTICE
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
OLUKAYODE ARIWOOLA Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
1. CHIEF ADIO LIASU
(HEAD OF KUDAKI AKEJA FAMILY)
2. CHIEF ASHIMIYU DADA OTTA
3. CHIEF AMBALIU SUNMOLA
4. CHIEF MUTAIRU ODUNRAN
5. CHIEF GANIYU OSEGBERE
6. CHIEF AINA BELLOAppellant(s)
AND
1. ALHAJI MUDASHIRU SALAU
2. HIS HIGHNESS OBA MUDASHIRU TIJANI OPELOYERU
3. HIS HIGHNESS OBA LASISI GBADAMOSI
(For Himself and members of Alimosho Local Government Chieftaincy Committee)
4. THE COMMISIONER IN CHARGE OF CHIEFTAINCY MATTERS, LAGOS STATE.Respondent(s)
RITA NOSAKHARE PEMU, J.C.A (Delivering the Leading Judgment): The Appellants were claimants, while the Respondents were the Defendants at the lower court.
By Writ of Summons dated and filed 26th May 2003 and in Paragraph 18 of their Statement of Claim of same date, the claimants claim the following:
1. A Declaration that by the Agreement between the Plaintiff, the 2nd Defendant, Kudaki Akeja Family on the one hand and the 1st Defendant on the other hand, the 1st Defendant is not entitled to and is estopped from presenting himself or applying for upgrading as an Oba or Part II Bale of Agodo Area of Egbe, Lagos State.
2. A Declaration that by the same Agreement the 1st Defendant is not entitled to and is estopped from selling land or dealing in land belonging to the Kudaki Akeja Family of Egbe, Lagos state.
3. An order of Injunction restraining the 1st Defendant from applying to the 2nd, 3rd and 4th Defendants for upgrading to Part II Chief or an Oba; or continuing with such an Application or in whatsoever manner presenting himself for consideration as Bale or Oba for Agodo in Egbe Town.
4. An order of Injunction restraining the 2nd, 3rd and 4th Defendants from entertaining or approving any application in whatsoever manner for upgrading to the status of Part II Bale or Oba for Agodo area of Egbe Town from the 1st Defendant or his Agents or Privies.
This present appeal is as a result of the Claimants/Appellants dissatisfaction with the Ruling of the High Court of Lagos State, delivered by the Honourable Justice L.G.A. Marsh dated 2nd day of April, 2008 in Suit No. ID/901/2002 (Pages 503-516 of Record of Appeal). I shall refer to the said Ruling as I go on in this Judgment.
The Appellants had filed Two Notices of Appeal but on the 29th of September 2010, the Court observed that the Notice of Appeal dated 10tr, April 2008 at Page 520 of the Record of Appeal is the one already entered in this instant Appeal No CA/L/1809. This is because the motion for extension of time to compile the Record of Appeal was granted on the 26th of March 2009.
It was noted that the Appellants had filed another Notice of Appeal and this Court, on the 29th of September 2010, in its wisdom advised learned Counsel for the Appellants J.J. Ogunyemi Esq., of the need for it to be entered and filed separately, with a different Appeal No. by this Courts’ Registry.
In the Notice of Appeal relevant to this Appeal, it encapsulates three (3) Grounds of Appeal without particulars- Pages 520-522 of the Record of Appeal. They are that:
Ground1. “The learned trial Judge erred in law when he considered the same issues of locus standi of the claimants and lack of reasonable cause of action and therefore struck out claims 1, 3 and 4 as contained in the claimants’ statement of claim dated 26th May 2003 when the same issues had been considered and determined against the 4th Defendant in the Ruling of the same High Court of Lagos State dated 22nd day of September delivered by Hon. Justice D.T. Okuwobi (Mrs.)”
Ground 2. The learned trial Judge having held thus:
“In ascertaining whether a Plaintiff in an action has locus standi, his Statement of Claim must disclose a cause of action vested in the Plaintiff. The averments in the pleadings must also disclose the rights and obligations or ht interest which have been violated, In other words, the averments must disclose that the Plaintiff has sufficient legal interest in seeking relief in Court, that is that he has suffered s wrong or a threat to his civil right and obligation for which redress can only be sought in court and it does not matter that this action may not succeed.”
Erred in law when he proceeded to use extraneous materials still to be tendered at the trial such as the Agreement and proceedings before the Hon. Justice Silver Commission of Inquiry in the determination of the issue of locus standi and lack of cause of action.
Ground 3. The learned trial judge erred in law, when he held that the transfer of Okuwobi J. who delivered the ruling dated 22nd September 2006 from the Lands Division to the Commercial Division of the High Court removed the suit from the jurisdiction of the Court or Judge thus making all previous proceedings including orders and findings made in the suit by Okuwobi, J. vacated and swept clean when:
(a) “Locus standi and lack of cause of action as raised by the 4th Defendant in the motion dated 18th October 2007 are caught by the principle of Issue estoppel which cannot be affected by the transfer of the suit to another Judge within jurisdiction.
(b) It is not within the competence of the learned trial Judge to overrule a determination of a coordinate Judge of the same High Court;
(c) There is only one High Court in Lagos State and the creation of Division is purely an administrative matter which does not add or derogate from the jurisdiction of the Court as prescribed by law.
(d) The fact that Okuwobi, J. took on a national assignment could not derogate from the jurisdiction of the High Court which jurisdiction she exercised at the date of her ruling on the issues determined.”
The Appellants had filed a motion on the 14th of September 2009 seeking extension of time within which to file their brief of argument and this application was granted with a deeming order on the 9th of December 2009. The Appellants brief was therefore deemed filed and served on the 9th of December 2009.
on the 29th of September 2010, the 1st-3rd Respondents sought extension of time, within which to file their Respondents brief of argument, and same was granted on the 29th of September 2010 with a deeming order as being filed and served on that date.
On his part, the 4th Respondent filed his brief of argument on the 7th of December 2009.
In the Appellants brief of argument, filed on the 17/6/09 but deemed filed on the 9th of December 2009, he had distilled two issues for determination from the three Grounds of Appeal in the Notice of Appeal.
They are:
(1) Whether in view of the earlier Ruling of Okuwobi J. delivered on the 22nd of September 2006 it was open to Marsh, J. to reopen the same issue and thereby by his ruling dated 2nd day of April 2008 overturned the earlier ruling of Okuwobi J. (Grounds 1 and 3.)
(2) Whether in the determination of the issue of Locus Standi, it was open to the learned trial judge (Marsh, J.) to consider extraneous material not disclosed in the statement of Claim i.e. the Agreement and Proceedings before the Hon. Silver Commission of Inquiry (Ground 2.)
It is pertinent to be well informed that issues for determination must flow from the Grounds of Appeal. Therefore any issue for determination which fails the litmus test must suffer the consequences of the relevant Ground of Appeal being deemed abandoned by this Court and accordingly struck out.
Before I return to the consideration of the Grounds of Appeal, suffice to state that the 1st – 3rd Respondents in their brief of Argument had formulated two (2) issues for determination. They are:
(1) Whether the transfer of the suit from Justice D.T. Okuwobi to Justice L.G.A. Marsh is not a transfer that requires a hearing De novo. This issue arises from ground one of the Notice of Appeal.
(2) Whether the 4th Respondent application on Locus Standi is not an objection to jurisdiction in respect of which the applicant may rely on affidavit evidence outside of the Statement of Claim, jurisdiction being a threshold issue extrinsic to the facts of a case. This issue arises from Grounds two and three of the Appellants Notice of Appeal.
The 4th Respondent had also distilled two (2) issues for determination from the three Grounds of Appeal filed. They are:
(a) Whether in view of the transfer of the case from Okuwobi J. to Marsh, J. all proceedings are not to start de-novo.
(Grounds 1 and 3.)
(b) Whether a purported agreement which contents are pleaded and basis of the Appellants’ relief and attached to their application for injunction can be regarded as extraneous materials as not be (sic) considered by the lower court while determining Locus Standi of the Appellants.
The issues for determination of the respective Parties can rightly be and are similar, but I am inclined to adopting that formulated by the Appellants.
Noteworthy is that the 4th Respondent filed a notice of preliminary objection dated 22nd of September 2003 on the ground that the Claimants’ case does not disclose any reasonable cause of action See Page 16 of Record of Appeal. The motion was refused on the 22nd of September 2006 by Honourable Justice Okuwobi (Pages 470-482 of Record of Appeal).
The Claimants’ locus standi to institute the suit was also challenged by the 1st – 3rd Respondents, vide motion on notice dated 5th December 2006, Again, this application was refused by Honourable Justice Okuwobi on the 9th of March 2007 (Pages 483-492 of Record of Appeal).
A cursory look at the Grounds of Appeal and the respective issues distilled therefrom by the respective parties, it seems to me that these issues aptly flow from the Appellants Grounds of Appeal.
The Gravamen of the Appellants case as gleaned from his Brief of Argument is whether in view of the fact that Okuwobi J. had litigated on the issues of locus standi and reasonable cause of action in the preliminary objection brought before it by the Respondents, in their respective capacities, these matters can be resolved again before Honourable Justice Marsh?
The Appellants had taken pains to show the proceedings before Honourable Justice Okuwobi and Honourable Justice Marsh respectively as shown at Pages 2 to 4 of their Brief of Argument, deemed filed and served on the 9th of December 2008.
The 4th Defendant had in paragraphs 12 and 13, of his Statement of Defence dated 22nd September 2003 and in reply to the Statement of Claim pleaded as follows:
12 “Whereof the Defendant also avers that the suits as presently constituted by the Plaintiffs disclose no reasonable cause of action is incompetent, premature and speculative as well as being an abuse of Court process and should be dismissed with substantial costs.
1.3 The Honourable Court would be so moved to determine the point of law raised before the hearing of the substantive suit.”
In the meantime, the Claimants filed and served a motion for interlocutory injunction dated 21st October, 2004 – Pages 102-125 of the Records which was listed before Okuwobi J. on the 3rd of March 2005.
Pages 126-127 of the Record of Appeal.
The Notice of preliminary objection of the 4th Respondent was taken by Okuwobi J and on the 22na of September 2006, dismissed same on the Grounds of it lacking in merit – Pages 470-482 of Volume II of the Record of Appeal.
The Respondents did not appeal this Ruling.
The 1st 3rd Respondents changed Counsel and on the 5th of December 2006 filed a motion challenging the LOCUS STANDI of the Appellants. They also filed along with the said motion a Statement of Defence dated 5th December 2006.
The motion of the 1st-3rd Respondents challenging the Locus STANDI of the Appellants was ruled on, on the 9th of March 2007 dismissing same – pages 483-492 of the Record of Appeal. Again there was no appeal against this Ruling.
The 4th Defendant in an application dated 16th April, 2007 sought to amend its Statement of Defence, and on the proposed amended Statement of Defence of the 4th Respondent, paragraphs 12 and 13 of the former defence were dropped in the new defence ostensibly in recognition of the Ruling of Okuwobi J. dismissing the preliminary objection of the 4th Respondent raised in the said paragraphs.
O. Ayanlaja Esq. SAN had argued that it is apparent from the Court proceedings, at pages 351-355 of the Record of Appeal that the last issue agitated by all Counsel before Okuwobi J. on the 30th of April 2007 had to do with the motion of the Appellants for injunctive relief pending trial, particularly in view of the fact that the Appellants had applied to Court that the status quo be maintained until 9th March 2007.
Learned Counsel had contended that from the foregoing, it is indisputable that the issues whether the claims of the Appellants disclose a cause of action and whether the Appellants have locus standi to institute the claims have been finally determined by Okuwobi J. at the High Court level in the hierarchy of courts.
After the issuance of the pre trial conference hearing notice, the case was listed before Marsh J. of the same Lagos State High Court on the 8th of October 2007 whereby Marsh J. adjourned the case to the 31st of October 2007 for argument of the motion for interlocutory injunction which had earlier been argued before Okuwobi J. but Ruling was not delivered in respect of it on the 18th of May 2007.
But between 8th of October and 30th of October (the next adjourned date) as fixed by Marsh J., the 4th Respondent on the 18th of October 2007 filed an undated Motion on Notice seeking the following orders:
(1) “Striking out claims 1, 3 and 4 contained in paragraph 18 of the Claimants Statement of Claim dated 26th May 2003 on the grounds of:
(a) Lack of Locus Standi of the Claimants;
(b) Lack of reasonable cause of action disclosed;
(c) Incompetence, frivolous, vexatious and an abuse of the process of the Court.
(d) And for such further and other orders as this Honourable Court may deem fit to make in the circumstances.”
Let me quickly say here that Claims 1, 3 and 4 in paragraph 18 of the Claimants Statement of Claim are predicated on paragraphs 9, 10 and 11 of the Statement of Claim.
Learned Counsel contends that the point of law above, having been determined by Okuwobi J., against the 4th Defendant was no more raised in the amended Statement of Defence reproduced at pages 336-339 of the Record of Appeal.
The 1st – 3rd Respondents Counsel, Bisi Ade-Ademuwagun Esq. had argued in his brief of Argument, deemed filed and served on the 29th of September 2010 that the transfer of the suit from Justice D.T. Okuwobi to Justice I.G.A. Marsh is a transfer that requires hearing de novo, and that the 4th Respondent’s application on Locus Standi is an objection to jurisdiction in respect of which the Applicant may rely on affidavit evidence outside of the Statement of Claim, jurisdiction being a threshold issue extrinsic to the facts of a case.
He argues that jurisdiction, being of fundamental nature can be raised at any stage of the proceedings, even on appeal to the Supreme Court for the first time, citing MADUKOLU V. NKEMDILIM 1992 ANLR. 587.
He posited that the Appellants second issue is based on the erroneous equation of proceedings in lieu of demurer with preliminary objection to jurisdiction of a Court based on several factors including LOCUS STANDI which was the 4th Respondent’s application in the lower court.
ln essence the 4th Respondent’s line of argument is similar to that of the 1st – 3rd Respondents. Learned Counsel for the 4th Respondent in his Brief of Argument argues that the transfer of the case to Marsh J was as a result of the transfer of the former Presiding Judge, Okuwobi J. to the Commercial Division of the Lagos Judicial Division of the High Court of Lagos State, and not due to the commencement of the pre-trial conference as contended by the Appellants, which fact was not reflected in their Notice of Appeal.
Referring to an Agreement exhibited as Exhibit “LASG 1” attached to the Claimants’ motion for injunction, he posits that that Agreement formed the Ground of preliminary objection before Marsh J.
A cursory look at the Appellants Issue No. 1 for determination refers to the Ruling of Marsh J. of 2nd April 2008 and this is reflected at page 508 of the Record of Appeal.
Let me quickly say here that the proceedings whereon Okuwobi J. presided over were all in the High Court of Lagos State, Ikeja Division.
To my mind, the issue here is not whether Okuwobi J. was transferred from one court to another, but whether the issues determined by him were caught by Issue Estoppel, and never to be resurrected. Were all previous proceedings including orders and findings made in the suit by Okuwobi J. swept clear?
In his Judgment at page 5 (pages 512-513 of the Record of Appeal), Marsh J. had this to say inter alia
“I agree entirely with the submission of Learned Director of Civil Litigation that there was no appeal against the Ruling of Okuzuobi J. and no pending application in any court between the parties and therefore no multiplicity of action in respect of the same subject matter and between same parties hence, there is to abuse of process, the action is therefore not caught by the doctrine of Estoppel Per Rem juridicatem.”
Curiously, Marsh J. went on to consider the motion dated 18th October 2007 which had already been determined by Okuwobi J. against the 4th Defendant in the Ruling of the same High Court of Lagos State Ikeja Judicial Division on the 22nd of September 2006 (pages 470-482 of the Record of Appeal).
The same issues of Locus Standi of the Claimants, and lack of reasonable cause of action, were those considered and determined, with all the Grounds of the preliminary objection dismissed.
For purposes of elucidation, I deem it necessary, indeed pertinent to reproduce the reliefs sought in the 4th Respondent’s application before Okuwobi J, as stated in the said Ruling.
In the beginning part of the Ruling of Okuwobi J. on 22nd September 2006, had this to say:
“By notice of preliminary objection dated 22nd September 2003, the 4th Defendant objector has raised the under listed grounds of objection in this suit as follows:
(a) The court has no jurisdiction to entertain the suit.
(b) The suit as presently constituted discloses no reasonable cause of action.
(c) The suit is incompetent being premature and speculative and this due to failure to comply with the condition precedent to the filing of this suit.
(d) The suit as constituted is an abuse of court processes,”
Pages 470-477 of the Record of Appeal.
Ground No (c) (about the action being merely speculative and premature boarders on Locus Standi), because the contention was that the Plaintiffs (Claimants) cannot bring this action – because a step for the creation of the promotion of a recognized Chief is not in place for Agodo.
At the tail end of his Ruling the learned trial Judge said
“I find no merit in all grounds of objection raised by the 4th Defendant/Objector Counsel and the grounds of objection are accordingly hereby dismissed as lacking in merit.”
In the Ruling of Marsh J. of the High Court of Lagos State, Ikeja Judicial Division of 2nd April 2008) where also Okuwobi J. was, he had in the introductory part said inter alia:
“The 4th Defendant/Applicant in the application filed on the 18th of October 2007 seeks the following reliefs:
Striking out claims 1, 3, 4 contained in paragraph 18th of the Claimants’ Statement of Claim dated 26th May 2003 on the grounds of:
(a) Lack of Locus Standi of the Claimants.
(b) Lack of reasonable cause of action disclosed.
(c) Incompetence, frivolous, vexatious and abuse of the Process to the Court…….”
What are claims 1, 3 and 4 in the Claimants’ Statement of Claim of 26th of May 2003 as reflected in paragraph 18?
These had earlier been reproduced at the beginning of this Judgment, but for purposes of emphasis, I deem it pertinent to reproduce the entire claims. They are:
Relief 1. “A Declaration that by the Agreement between the Plaintiff, the 2nd Defendant, Kudaki Akeja Family on the one hand and the 1st Defendant on the other hand, the 1st Defendant is not entitled to and is estopped from presenting himself or applying for upgrading as an Oba or Part II Bale of Agodo Area of Egbe, Lagos State.
Relief 2. A Declaration that by the same Agreement the 1st Defendant s not entitled to and is stopped from selling land or dealing in land belonging to the Kudaki Akeja Family of Egbe, Lagos State.
Relief 3. An order of Injunction restraining the 1st Defendant from applying to the 2nd, 3rd and 4th Defendants for upgrading to Part II Chief or an Oba; or containing with such an Application or in whatsoever manner presenting himself for consideration as Bale or Oba for Agodo in Egbe town.
Relief 4. An order of injunction restraining, the 2nd, 3rd and 4th Defendant from entertaining or approving any application in whatsoever manner for upgrading to the statue of Part II Bale or Oba for Agodo Area of Egbe Town from the 1st Defendant or his Agents or Privies.
The procedure by way of preliminary objection on point of law is generally only satisfactory when whichever way it is decided, it is conclusive of the whole matter before the Court. See AINA V. TRUSTEES OF THE NIGERIA RAILWAY CORPORATION PENSION FUND 1970, 1 ALL NLR.281.
Therefore the Courts do not give decision for purely academic interests.
LOCUS STANDI denotes legal capacity to initiate proceedings in a Court of Law. Right of a party to appear and be heard on the question before any Court or tribunal. – See ADESANYA V. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA & ANOR 1981-. S.C. 112 at 748 at 128-129.
It is trite that an amended pleading speaks from the date of the original pleadings – See ROTIMI V. MCGREGOR 7974 S.C.133. GOV. OF MIDWEST Y. MID MOTORS 1977 10 S.C.43.
It is the claim that determines jurisdiction. IZEUKWE V. NNADOZIE 14. W.A.C.A.362 at 363.
ADENUGA V. ODUMERU 2001. FWLR Pt. 37, 7056. Ratio 5. ADEYEMI V. OPEYORU 1976 9-10 SC 37 at 57, TUKUR V. GOVERNMENT OF GONGOLA STATE 1980. 4, NWLR Pt. 117 at 577.(sic)
EGBUONU V. BRTC. 1997 12 NWLR Pt. 537 at 43.
Jurisdiction already assumed cannot be divested on the strength of a valid defence to the action.
It is correct to say that, not only the 4th Respondent filed a notice of preliminary objection before Okuwobu J., but the 1st-3rd Respondents on grounds of challenging inter alia Locus Standi, which application was also dismissed.
The Point of Law having been determined by Okuwobi J. against the 4th Defendant, it was no more raised in the amended Statement of Defence (pages 336-339 of the Records of Appeal).
When Okuwobi J. delivered his Ruling on the 22nd day of September 2006, it was a final Ruling of an interlocutory application. The issues canvassed bordered on jurisdiction and the aim of preliminary objection is to decide a matter one way or the other at its preliminary stage.
Therefore Okuwobi J. having delivered its Ruling on the 22nd day of September 2006 on the issue of Locus Standi, reasonable cause of action (issues which border on the jurisdiction of the court), it was not open to Marsh J., who is a Judge of a Court of coordinate jurisdiction as Okuwobi J., to re-open the issue. His overruling the earlier Ruling of Okuwobi J. was of no moment. That amounted to him sitting on appeal on a matter that has been determined by a Court of coordinate jurisdiction. There is only one High Court in Lagos State. No Judge can set aside or vary the order/orders of any brother Judge of the same High Court, except of course where the earlier one is a nullity. I had earlier observed that the Rulings of Okuwobi J. were never appealed by either the 1st-3rd Respondents or the 4th Respondent.
From records, the parties in this case are the same, so are the issues involved. The Ruling of Okuwobi J. therefore operates as issue estoppel having been adjudicated upon by a Court of coordinate jurisdiction. It is trite that Issue Estoppel binds the parties as well as the Court. See WITT V. BUSCH LTD V. DALE POWER SYSTEM PLC 2007.17 NWLR Pt. 1062. 1 at 25-26 paragraphs e-b.
FRANCIS SHAWN & ANR V AFRIBANK NIGERIA PLC. 2002.17 NWLR Pt.795 at 185.
There is nothing on Record to show that the Chief Judge of Lagos State transferred the case to Marsh J, neither was he given the power to set aside a Ruling of a brother Judge. There was no order from the Chief Judge that the matter already determined be re-opened, neither is there any appeal. Marsh J, had no business re-opening that case as he did.
Issue No. 1 is answered in the negative and same is therefore resolved in favour of the Appellants and against the Respondents.
Learned Counsel had contended, (rightly in my view) in arguing Issue No. 2, that in deciding whether there exists a reasonable cause of action, a look at the Statement of Claim becomes necessary, and indeed imperative.
That the Court is not to consider extraneous matters not contained in the Statement of Claim and which are outside it.
He argues that the reference to an Agreement and the Proceedings of the Justice Silver Commission and the determination of the locus standi of the Claimants was an error on the part of the learned trial Judge.
Where res judicata is pleaded by way of estoppel to an entire cause of action, 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 question of law as well as findings of fact. BANAR BEE V. HABIB MERICAN NOORDIN 1909. AC 615.
Res Judicata is no technical doctrine. It has been applied to an order, interlocutory in form, which was meant to be a declaration of the rights (as in this case) of the parties See PEARETH V. MARRIOT 1882 22 CH. D. 182. CA; BANAR BEEN v. HABIB MERICAN NORDIN (supra).
The doctrine applies equally in all Courts, and it is immaterial in what Court the former proceedings was taken, provided only that it was a Court of competent jurisdiction or what form the proceedings took, provided it was really for the same cause.
Now, was any “Agreement” and “Proceedings of Justice Silver Commission” pleaded in the Statement of Claim as part of the case of the Claimants/Appellants.?
At page 61 of the Record of Appeal, the “Agreement” dated 21st April, 1995 between Kudaki Akeja and Mudashiru Salau was listed as one of the Exhibits to be tendered by the Claimants’ witnesses at the trial and this was to have been at the stage of the trial proper.
The parties and issues before Okuwobi J. were the same who came before Marsh J.
The 4th Respondent had argued that upon being seized with further facts he filed a motion on notice for an order to strike out claims 1, 3 and 4 in paragraph 18 of the Claimants’ Statement of Claim.
This may be so, but the preliminary objection earlier argued and determined is based on issues that had been entertained by a Judge of coordinate jurisdiction. The 4th Defendant ought not to have brought such an application which had been entertained and decided by a High Court Judge to another High Court Judge in the same jurisdiction.
The question therefore, is not about documents considered by Marsh J but that he lacked the jurisdiction to entertain the Preliminary Objection of the 4th Respondent as he did. Issue No. 2 must therefore be answered in the negative and is therefore resolved in favour of the Appellants and against the Respondents. In the proceedings before Okuwobi J, which entertained the Notice of preliminary objection, it is headed in the Ikeja Judicial Division holden at Ikeja.
In the proceedings before Marsh J. it was before the same Judicial Division in Ikeja and had the same parties with the same issues canvassed.
At page 5 of the Ruling of Marsh J. of the 2nd of April 2008 – page 512 of the Records, Marsh J. had this to say inter alia
“On Ground one, it is necessary to determine first and foremost whether or not the Claimants have some justicable right, interest or privilege to defend in the present case.”
This was the same issue before Okuwobi j. in respect of the same parties, and she had ruled on it.
The decision arrived at by Marsh J. was manifestly and patently made without jurisdiction. This is because he disregarded and misapplied the general law, including statute law governing its Jurisdiction and he disregarded and failed to appreciate the fact that the issues before him had been entertained in a Court of coordinate jurisdiction, which fact affected its jurisdiction. He had means of knowing of it.
A Court has inherent jurisdiction to determine whether it has jurisdiction or not and then decide in proper cases (as in the present case) that it lacks the competence or authority to entertain an incompetent application if that is the case.
Previous ruling by Okuwobi J. creates Issue Estoppel or res judicata against the raising of similar point before another Judge, moreso in the same jurisdiction.
Here, a new trial was never directed
The striking out of Reliefs 1, 3 and 4 of paragraph 18 of Claimants Statement of Claim was a total misconception by Marsh J. Indeed the
This makes the order of Marsh J. of the 2nd of April 2008 liable to be set aside and same is hereby set aside while the Appeal succeeds in its entirety with N50, 000.00 cost in favour of the Appellants and against each of the two sets of Respondent.
RAPHAEL CHIKWE AGBO, J.C.A: I had the privilege of reading before now the judgment delivered by PEMU, JCA and I agree with both her reasoning and conclusions. I abide by all the consequential orders made therein
OLUKAYODE ARIWOOLA, J.C.A: I had the opportunity of reading the draft of the lead judgment prepared and just read by my learned brother, PEMU, JCA. I am in agreement with the reasoning and conclusion in the said judgment.
The appeal is meritorious and it is hereby allowed by me.
I abide by the consequential orders including the order on costs.
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Appearances
O. AYANLAJA (SAN) J.J. OGUNYEMI AND A.R. SANGOBANWOFor Appellant
AND
LAWAL PEDRO (SAN), A.O. ADEBAYO (PSC) (MRS), OLABISI ADE-ADEMUWAGUN, EVELYN OSESA AND OLUFEMI AJIBOSO,For Respondent
