MR. CALEB ADETUNJI BODUNRIN KUJU v. MR. VICTOR EKA (2013)

MR. CALEB ADETUNJI BODUNRIN KUJU v. MR. VICTOR EKA

(2013)LCN/6461(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of November, 2013

CA/L/67/08

JUSTICE

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

MR. CALEB ADETUNJI BODUNRIN KUJU Appellant(s)

AND

MR VICTOR EKA Respondent(s)

RATIO

THE APPLICATION OF THE DOCTRINE OF RES JUDICATA

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Candide Johnson J. of the High court of Lagos State in suit no.ID/1145/2005 delivered on the 1st of December 2006 striking out the appellant’s suit as an abuse of court process.
The facts of this case are as follows: In a previous action (suit no.ID/2146/99), the Appellant by a writ of summons dated the 13th of August 1999, sued the Respondent at the High court of Lagos state in the Ikeja Judicial Division claiming as follows:
i. A Declaration that he is entitled to the statutory Right of occupancy of all the large piece or parcel of rand being at Block N12 Ogudu G.R.A. in the Kosofe Local Government Area of Lagos state and covered by certificate of occupancy dated 7th day of February 1979 Deeds kept the Lands Registry Lagos.
ii. Perpetual Injunction restraining the Defendant by himself, his servants, agents, privies and otherwise howsoever from continuing to trespass on the parcel of Land.
iii. Damages in the sum of N500,000.00 (Five Hundred Thousand Naira only) for the trespass committed by the Defendant on the said Land.
By an Amended statement of Defence dated the 16th of April 2003, the Respondent defended the action on the grounds that there was a valid contract between the Appellant and the Respondent in respect for the sale of the land. After the conclusion of the trial, Obadina J of the High court of Lagos state in a judgment delivered on the 24th of March 2004 held that there was no consideration and therefore no valid contract capable of being enforced by the parties. He further held that the Appellant was entitled to the Statutory Right of Occupancy of ail the large piece of land being at Block N, Plot 12, Ogudu G.R.A. in Kosofe Local Government Area of Lagos state and covered by certificate of occupancy dated the 7th of February 1979 and registered as No.13 at page 13 in volume 1800 of the Register of Deeds kept at the Lands Registry, Lagos.
Dissatisfied with the judgment,the Respondent herein appealed against the decision by a notice of appeal dated and filed on 17/5/04.
After the judgment of Obadina J, the Appellant herein brought a Motion for a “Consequential” order for Possession dated the 22nd of April 2004 seeking to regain possession of the property. By a Ruling dated the 28th of January 2005, Obadina J refused to grant the “Consequential” Order for Possession on the ground that the relationship that existed between the parties is that of Licensor and Licensee and that issue of possession was not contested at the trial of the action. Following the refusal of Obadina J. to grant the consequential order for possession, the Appellant served on the Respondent a Notice of Owners Intention to recover possession and thereafter commenced an action (Suit No.ID/1145/2005) against the Respondent in the High court of Lagos State claiming inter alia as follows:
i) Possession of the piece or parcel of land Ogudu known as Block N plot 12 Ojota GRA in the Kosofe Local Government Area of Lagos state covered by Certificate of Occupancy dated 7th February 1979 and registered as No.13 at page 13 Volume 1800 of the Register of Deed kept at the Lands Registry, Alausa.
ii) Payment for occupation and use at N100,000 per annum from December 1988 till date of judgment herein.
The Respondent filed a statement of Defence and Counter-claim in which he claimed inter alia a declaration that there is a valid contract of sale of the land in dispute between him and the Appellant. The Respondent also filed a Preliminary objection dated 10/5/06 challenging the jurisdiction of the High court of Lagos state to entertain the grounds Appellant’s action on the inter alia that that the Appellants application for consequential order of possession had been refused by Obadina J, a court of coordinate and concurrent jurisdiction and that he, the Respondent filed an appeal against the judgment of Obadina J in suit No ID/2146/99 which appeal is still pending. He contended therefore that the suit was an abuse of court process.
The Appellant filed a Defence to the counterclaim and thereafter filed a Motion dated 9/6/06 praying the court to dismiss the Respondents counter-claim on the ground inter alia that the subject matter of the Respondent’s counter-claim had been determined in favour of the Appellant in the judgment of Obadina J. in Suit No.ID/2146/99.
After hearing arguments on the Respondent preliminary 10/5/06 and the Appellant’s objection of Motion of 9/6/06, Candide Johnson J of the High Court of Lagos State in a ruling delivered on the 1/12/06 struck out the Appellants suit as well out as the Respondents counter-claim. The appellant then appealed against the part of the decision of Candide Johnson, J. striking out his suit. The notice of appeal filed on 23/2/07 has four grounds of appeal. The parties filed and exchanged briefs of argument. Out of his four grounds of appeal, the Appellant formulated the following two issues:
1. Whether the learned trial judge was right to hold that the decision in the case of Owonikoko v. Arowosaiye (1997) 10 NWLR (Pt.523) p.63 denies the Appellant reliance on the finality of the judgment of Obadina J. delivered on the 24th of March 2004 in suit No.ID/2146/99.
2. Whether the learned-trial judge was right Not to have struck out suit No.ID/1146/99 for being an abuse of court process when in his ruling he agreed with the Appellant’s counsel that the claim for possession in Suit No.ID/1146/99 is not a re-litigation of any identical issue for possession in suit No.ID/1146/99.
The Respondent in his brief of argument dated 15/12/09 and filed on 19/1/10 but deemed properly filed and served on 6/2/12 also formulated two issues for determination thus:
1. Whether suit No. ID/1145/05 involving same parties and same subject matter (sic as suit no ID/2146/99 which) was struck out on the 1st of December, 2006, is not an abuse of court process?
2. Whether the court was right in dismissing the action?
The issues as formulated by both parties are somewhat confusing and are unnecessarily verbose. Further, references were made to matters which are strictly not relevant in the determination of this appeal. In view of the fact that there was no appeal against the striking out of the counter-claim, the sole issue which in my view is adequate for the determination of this appeal is as follows:
Whether the learned trial Judge was right in striking out suit ID/1146/99 in view of the pending appear in ID/2146/99?
The Appellant’s brief of argument was settled by Ayodele Akintunde Esq. Therein he submitted that it is not in dispute that after the conclusion of the trial in Suit No.ID/1146/99 (sic suit No.ID/2146/99) Obadina J on the 24th of March 2004 gave judgment in favour of Appellant and held that the Appellant was entitled to the statutory Right of occupancy over the land in dispute. Learned counsel citing various authorities contended that the Judgment is a final judgment and became effective from the date of delivery. Learned counsel deprecated the reliance of the Lower Court on the case of Owonikoko v. Arowosaiye (1997) 10 NWLR (Pt.523) 63 and attempt to draw a distinction between that case and the present case thus:
“It is submitted and we urge this Honourable Court to hold that the facts and circumstances of the case of Owonikoko v. Arowosaiye (supra) are different from that of this appeal. In Owonikoko’s case the Defendant raised the plea of estoppels per rem judicata in his statement of defence and one of the grounds upon which the plea was rejected was that the judgment was on appeal and was inoperative as basis for the defence of estoppels.”
In the instant case, the Appellant brought an action for amongst other things possession of the piece or parcel of land known as Block N Plot 12 Ojota Ogudu GRA in the Kosofe Local Government Area of Lagos state covered by certificate of occupancy dated 7th day of February 1979 and registered as No.13 at page 13 Volume 1800 of the Register of Deed kept at the Lands Registry, Alausa. (A copy of the writ of summons and statement of claim is at pages 7 to 5 0f the record).
In paragraph 7, 8 and 9 of his statement of claim at page 4 of the record, the Appellant relied on the judgment of Obadina J. delivered on the 24th of March 2004 in suit no. ID/1146/99 (sic ID/2146/99) wherein she held that there was no consideration and there was no valid contract capable of being enforced by the parties and further held that the Appellant was entitled to the statutory Right of occupancy of all the large piece or parcel of land being at Block N, Plot 12, Ogudu G.R.A in Kosofe Local Government Area of Lagos State. In the Appellants main suit (No.ID/145/2005). The Appellant did not use the judgment of Obadina J in suit No.ID/1146/99 (SIC ID/2146/99) as the basis of a defence for estoppel as was done in the case of Owonikoko v. Arowosaiye (supra) but as a Legal basis for claiming Possession…………………….
It is submitted and we urge this Honourable court to hold that setting aside until the judgment of the High court of Lagos State (coram: Obadina J) delivered on the 24th of March 2004 in suit No.ID/1146/99 (sic ID/2146/99) remains in full force and effect and the Appellant had a legal foundation in the judgment in suit No.ID/1146/99 (SIC ID/2146/99).”
Learned Counsel relying on Agbogunleri v. Depo (2008) 3 NWLR (Pt.1074) 217 @ 247, Ngwo v. Monye (1970) 6 N.S.C.C. 70 @ 76; and Udo v. State (2005) 8 NWLR (Pt.928) 521 urged the court to hold that the judgment of Obadina J delivered on the 24th of March 2014 in suit No.ID/2146/99 is a final judgment and remains in full force and effect until set aside and that the Appellant can rely on the finality of the judgment as a legal foundation to bring suit No.ID/1145/05. Counsel finally urged the court to hold that the learned trial judge was in grave error when he struck out the Appellant’s action (suit No.ID/1145/05) based on the decision in the case of Owonikoko v. Arowosaiye (1997) 10 NWLR (Pt.523) 61.
Chief Adedeji Adekoya for the Respondent in his brief submitted that in suit ID/2146/1999 involving same parties, the Appellant claimed a right to statutory right of Occupancy on a parcel of land along with some other reliefs. The Respondent defended the action on the ground that there is a contract of sale between the parties but the court ruled that no consideration passed in respect of the contract and therefore, there was no contract to be enforced by the Respondent declaring that the relationship that existed between both parties is that of a LICENSEE AND LICENSOR. The Court however admitted that there was an offer and acceptance between the parties and the cheque issued by the Respondent in favour of the Appellant was not cashed and was not returned by the Appellant though it was received by the Appellant. Counsel contended that the Appellant by filing another Suit No.ID/1145/05 before HON. JUSTICE CANDIDE JOHNSON involving same parties sought to re-litigate the matter between the same parties on possession of the land in dispute. Counsel contended relying on OLUKOGA VS FATUNDE (1996) 7 NWLR (PT.462-516) @ 531 that the court rightly struck out the action and upheld the plea of res judicata raised by the Respondent.
Learned counsel submitted that the Respondent herein filed four (4) grounds of appeal against the judgment of OBADINA J. in ID/2146/99 delivered on the 24th day of March, 2004 which appeal was duly served on the Appellant. The Appellant proceeded to filed ID/1145/05 even after this notification. Counsel contended that the record of Appeal has been compiled and that the appeal is now pending at the Court of Appeal. He submitted relying on MESSRS NV SHEEP VS M. V. ARAZ 2000 12 SC (PT.1) PG. 164 that it is abuse of court and judicial process for the Appellant to have gone ahead to file a fresh suit without waiting for the outcome of the appeal. Learned counsel submitted that if the court had not struck out the suit ID/1145/05, the outcome of the appeal filed by the Respondent may be rendered nugatory and could occasion injustice because the Appellant would have taken possession of the disputed property before the Respondent’s Appeal is determined in the court of Appeal. Counsel urged the court to uphold the decision of the lower court striking out suit no ID/1145/05 as an abuse of court process and to dismiss the appeal as lacking in merit.
I have read carefully the submissions of counsel and the ruling lower of the court. To break down the issue here in simple language; the Appellant’s case is that he sued for declaration of right to certificate of occupancy etc in suit no. ID/2146/99 and got judgment. He now filed this fresh suit ID/1145/05 for the court to grant him possession of the land he was adjudged owner of in 2146/99 and of which the Respondent is wrongfully in possession of.
The Respondent’s case is that he appealed the judgment in ID/2146/99, that there is a valid contract of sale contrary to the decision of the lower court, that it is an abuse of court process for the Appellant being fully aware of the pending appeal to bring this action asking for possession when no one is sure yet what the outcome of the appeal would be. After hearing the parties, the learned trial Judge observed:
“I therefore would have no option, in hierarchical deference to the court of Appeal’s decision in OWONIKOKO VS. AROWOSAIYE (supra) to hold that since CA/L16/05 (CA/L/770/05) is a pending appeal in respect of the judgment of Obadina J. in ID/2146/99 the said judgment in the words of the court of Appeal (supra) ,is no longer final as it is liable to be set aside or nullified on appeal thereby rendering it in-operative as a basis for the defence of estoppel.” The significance of this is to be found in paragraph 10 of the Counter/Affidavit of Maureen Mobuogwu (Miss) filed on behalf of Claimants as follows:
“10.The Claimant/respondent in a bid to regain possession of the property by due process issued and served the Defendant herein with the requisite statutory notices and instituted this action pursuant to the rights of the Claimant as confirmed by the judgment of Obadina J in suit No.ID/2146/99.”
From even a pure stand point of practical logic if the Court of Appeal Lagos in CA/L/16/05 (CA/L/770/08) were to uphold the Defendant’s appeal against the decision of my learned brother Obadina J. if that happened, then the present suit would be overtaken by that event and would die a natural and inevitable death. In other words this suit to survive must rely on the finality and/or estoppel of the judgment in ID/2146/99. This is because ID/2146/99 dismissed the Defendant’s assertion of a valid contract for the sale by the claimant to the Defendant of the disputed land and did not order specific performance but rather upheld the continuing ownership and title of the Claimant over the disputed land,
Since OWONIKOKO’S CASE supra denies to the claimant reliance on the finality of ID/2146/99 or reliance on estoppel as to the effect of the judgment therein, in my view, by necessary implication present this suit amounts unwittingly, to an abuse of court process to the extent that it has no legal foundation in the judgment in ID/2146/99 unless and until the Court of Appeal, Lagos hears and determines CA/L/16/05 (CA/L/270/05) and I so hold.”
The views of the learned trial Judge are sound and cannot be faulted. If the appeal in CA/L/16/05 which later became CA/770/08 succeeds and the view of the Respondent herein is upheld that there was a valid contract of sale between the parties, then hearing the Appellant’s suit for possession and possibly granting same would amount to travesty of justice. The learned trial Judge was right in striking out the suit on the ground that it is unwittingly an abuse of court process. The proper thing to do was to wait for the outcome of the appeal in order to determine the next line of action. As pointed out by the learned trial Judge, if the appeal is successful, then the suit would be overtaken by events and would die a natural and inevitable death.
The distinction between this case and OWONIKOKO’S CASE which the Appellant went to a lot of trouble to point out is misleading of the actual reason why the learned trial judge relied on the case. It is true that OWONIKOKO’S case concerns estoppel as a defence while the instant case is for possession based on the judgment of the Lower Court in ID/2746/99 which has been appealed against. The reliance the learned trial Judge placed in OWONIKOKO’S case is the fact that once a case is on appeal, then it cannot be considered a final judgment for the purpose of using it as a basis for applying to the court for enforcement of a right conferred by the judgment. Subject to this it remains a final judgment until set aside by the court. On this basis the cases of Agbogunleri v. Depo (2008) 3 NWLR (Pt.1074) 217 @ 247, Ngwo v. Monye (1970) 6 N.S.C.C. 70 @ 76; and Udo v. State (2005) 8 NWLR (Pt.928) 521 relied on by learned counsel for the Appellant are not apposite.

In respect of the application of the doctrine of res judicata, an appeal does not derogate from the incidence of the finality of the decision of the trial court. If the conditions for the successful of plea of estoppel are satisfied, it will be of no consequence that there is a pending appeal. But that is not the same when the claimant is trying by a fresh action to enforce a right granted in an earlier suit on appeal. It is indeed common sense to insist that the claimant’s suit should abide the outcome of the Appellate proceedings. It will lead to a ridiculous situation if in spite of the pending appeal, the court went ahead to hear the Appellant’s case and to grant him possession and the Appeal court nullifies the judgment and holds that there was an enforceable contract between the parties, thereby protecting the right of the Respondent to remain in possession, It is obvious then, that it makes better sense and protects the integrity and hierarchy of the courts to exercise patience and await the outcome of the appellate proceedings. The learned trial Judge was also right in his view that the claim for possession is not a re-litigation of any issue determined in ID/2146/99. Possession was not in issue nor even canvassed in the earlier case. The plea of Res Judicata does not therefore arise in this case. However the need to avoid rendering nugatory the decision of the appellate court makes it expedient that the suit should abide the outcome of the appellate proceedings. The lower court was right in striking out the suit. This appeal lacks merit. It is hereby dismissed with costs of N20,000.00 in favour of the Respondent.

SIDI DAUDA BAGE, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother CHINWE EUGENIA IYIZOBA, JCA.
I agree with the reasoning and conclusion reached therein and have nothing extra to add.
This appeal lacks merit. It is also hereby dismissed by me with N20,000 in favour of the Respondent.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother Chinwe Eugenia Iyizoba ICA. I agree with the reasoning and conclusion reached therein and have nothing extra to add.
I too dismiss the appeal and also abide by the consequential orders made in the lead judgment.

Appearances

Ayodele Akintunde Esq. with A. Gbadebo (Miss) and N. E. Ebeleju (Mrs)For Appellant

AND

Respondent not representedFor Respondent