SEMIU LAWAL v. THE STATE
(2013)LCN/6618(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of December, 2013
AND
Abdulmumeen Busari (SSC)For Respondent
ABBAS BALARABE LAWAL v. ALHAJI IDRIS ZAGO & ORS
In The Court of Appeal of Nigeria
On Wednesday, the 25th day of June, 2014
CA/A/378/2009
RATIO
CONSIDERATIONS IN DETERMINING WHETHER A DECISION IS FINAL OR INTERLOCUTORY
The test for determining whether a decision is final or interlocutory as stipulated in the case of Alor v. Ngene (2007), 12 NWLR (Pt. 1062) 163 by the Supreme Court are;
(a) The nature of the application made to the Court
(b) The nature of the order made.
In the instant Appeal, the nature of the Application made to the Court in 2007 suit was a preliminary objection on the ground of locus standi of the plaintiff to institute the action. The order made by the Lower Court was striking out of the suit.
In order to determine whether the decision of a Court is final or interlocutory, the decision must relate to the subject matter in dispute between the parties and not the function of the Court making the order. Therefore the determining factor is not whether the Court has finally determined an issue, but whether or not it has finally determined the rights of the Parties in the claim between parties. If an order, decision or Judgment of a Court finally and completely determines the rights of the parties in the case, it if final. But if it does not, it is interlocutory. See Alor v. Ngene (supra)
A decision is said to be final where it determines the rights of the parties in the substantive subject matter in dispute and without leaving any option to either party to relitigate over the same subject matter. Thus a decision or order of Court which does not finally dispose of the right of the parties in the subject matter in dispute such as a decision in an issue or issues, or which does not for close the Parties from relitigating over the same subject matter, such as an order striking out a suit, is interlocutory. See Alor v. Ngene (supra)
It means therefore a final decision is the decision in which parties rights have been determined completely, unlike an interlocutory order where the right or claims of the parties in an action have not been looked into and determined by the Court. It follows also that where a decision only dispossess of an issue or issues in the case, leaving the parties to go back to claim other rights in the Court, then the decision is interlocutory.
Where a suit is struck out, the Plaintiff in most cases had another opportunity to commence action after curing the deficiency which resulted in the striking out of the action. See Alor v. Ngene (supra). PER TANI YUSUF HASSAN, J.C.A.
JUSTICE
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
MOORE A.A. ADUMEIN Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
Between
ABBAS BALARABE LAWAL – Appellant(s)
AND
ALHAJI IDRIS ZAGO & ORS – Respondent(s)
TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): The Appeal is against the decision of a High Court of Justice, FCT, Abuja (Coram S. E. Alade Toyinbo J.) delivered on the 30th day of June, 2009 in suit No. FCT/HC/CV/496/2009.
The facts of the case from the record are that, the 1st Respondent was the original allottee of Plot 852 Cadastral Zone A04 Asokoro District, Abuja (Municipally called Plot 62 Ali Akilu Crescent, Asokoro Abuja) having been originally earlier allocated to him by the 2nd Respondent in 2001.
He took the Right of Occupancy to AGIS for recertification in 2006, when it was purportedly revoked and re-allocated to the Appellant and issued him a Certificate of Occupancy.
The 1st Respondent through his authorized agent, Dr. T. E. Malumi filed a writ of Summons in suit No. FC/HC/CV/1371/2007 before Jamilu Y. Tukur J. on behalf of his Principal, the 1st Respondent. On the objection of the Appellant the suit was struck out for want of locus standi on Dr. Malumi and that the power of Attorney was not registered in accordance with section 15 of the Land Registration Act.
The 1st Respondent now instituted another action in his name by Originating Summons in suit No. FCT/HC/CV/496/2009 against the 2nd and 3rd Respondents and Appellant. The 2nd and 3rd Respondents filed two preliminary objections to the Originating Summons and a counter affidavit to the Originating Summons and attached exhibits. The Appellant also filed a preliminary objection to the Originating Summons but did not file a counter affidavit. The trial Court determined the preliminary objections and the Originating Summons together. He dismissed the preliminary objections and granted the Reliefs sought by the 1st Respondent. The decision gave rise to this Appeal.
In the Notice of Appeal dated the 3rd day of August, 2009, there are eight grounds of Appeal, but grounds 6, 7 and 8 are abandoned leaving grounds 1, 2, 3, 4 and 5 as contentious in this Appeal, with the Reliefs sought.
The grounds of Appeal shorn their particulars are.
GROUND 1
JURISDICTION
“That the learned trial Judge had no Jurisdiction or competence to review or sit on appeal over the earlier decision of another judge of concurrent or co-ordinate Jurisdiction which can only be appealed against to the Court of Appeal”.
GROUND 2
“That having held that the decision of Tukur J. in suit No. FCT/HC/CV/1371/2007 Dr. T. E. Malumi (suing as Donee and or authorized representative of Alhaji Idris Zago) v. The Honourable Minister, Federal Capital Territory & Ors is final and subsisting and the learned trial Judge erred in law when he held that the Plaintiff had locus standi to prosecute this suit the subject of this appeal”.
GROUND 3
“The learned trial Judge erred in law in holding that the doctrine of estoppel per rem Judicatam did not apply to bar or preclude the 1st Respondent from instituting the present suit when the Parties or their privies, the claim or issues in dispute and the subject matter in the previous suit are the same with those in the present suit and the final decision delivered by a Court of Competent Jurisdiction in the previous suit is still valid and subsisting”.
GROUND 4
“The learned trial Judge erred in law and acted without Jurisdiction when he held that the previous final decision given by another FCT High Court Judge of competent and co-ordinate Jurisdiction in an earlier suit No. FCT/HC/CV/1371/2007 over the same questions or issues did not constitute issue estoppel precluding the 1st Respondent from instituting this fresh suit on the sole ground that the Parties are not the same when Parties include their privies”.
GROUND 5
“The learned trial Judge having rightly held that the previous decision of another Judge of the same High Court in suit No. FCT/HC/CV/1371/2007 was a final decision acted without Jurisdiction in adjudicating over a fresh suit No. FCT/HC/CV/496/2009 involving the same issues and parties which amounted to an abuse of Court process on the part of the 1st Respondent who did not appeal to the Court of Appeal against the previous decision”.
RELIEFS SOUGHT
To allow the appeal, set aside the Judgment of the Lower Court delivered on the 30th day of June, 2009 and dismiss the plaintiff’s claims in their entirety for abuse of Court process.
In the Amended Originating Summons dated and filed 13/5/2009 the 1st Respondent (as Plaintiff at the Lower Court) claims against the 1st, 2nd Respondents and Appellant (as defendants at the Lower Court) jointly and severally as follows:
1) A declaration that by virtue of subsisting Right of Occupancy Contract, the Plaintiff is the lawful holder entitled (under section 5(1) of Land Use Act) to Statutory Certificate of Occupancy over the land comprising Plot 852 Cadastral Zone A04 Asokoro District, Abuja, (Municipally called Plot 62 Ali Akilu Crescent, Asokoro Abuja) same having been originally/earlier allocated to him by the 1st Defendant in replacement of an earlier grant.
2) A declaration that the purported revocation, re-allocation and issuance of Certificate Occupancy by the 1st Defendant (during the Mallam El-Rufari dispensation) to the 3rd Defendant (then FCT Chief of Staff,) of the said land originally allocated to the Plaintiff, being Plot 852 Cadastral Zone A04 Asokoro District, Abuja is arbitrary, oppressive, illegal, ultra vires, null and void being contrary to S. 28, 44 and 51 of the Land Use Act.
3) An Order cancelling and/or setting aside the purported revocation re-allocation and issuance of Certificate of Occupancy over the said Plot by the 1st Defendant to the 3rd Defendant, being in brazen disregard of the subsisting Right of Occupancy earlier granted to the Plaintiff.
4) An Order granting/restoring possession to the Plaintiff, and compelling the 1st/2nd Defendants to issue to the plaintiff, a recertified statutory Certificate of Occupancy (in pursuance of the said earlier Right of Occupancy Contract) over the subject plot.
5) An Order of injunction jointly and severally restraining the Defendants, their agents, servants, privies or workman from further building operations, entry or interference with the said plot 852 Cadastral Zone A04, Asokoro District, Abuja, Municipally called plot 62 Ali Akilu Crescent, Asokoro District, Abuja.
And seek for determination of the following questions:
i) Whether the 1st and 2nd Defendants were entitled within the purview at sections 5(1), 28, 44, 51 of the Land Use Act to re-locate the res to the 3rd Defendant during the subsistence of their earlier allocation to the Plaintiff.
ii) Whether the purported re-allocation of the res to the 3rd Defendant is valid and legally sustainable without prior revocation of the Plaintiff’s interest in the manner provided in sections 28, 44, 51 of the Land Use Act.
iii) Whether the purported revocation and re-allocation of the res to the 3rd Defendant, a private developer, was for “public purpose” as envisage under S. 28 of the Land Use Act.
iv) Whether the res is a developed land within the con of section 51 of the Land Use Act as at the time of the purported reallocation to the 3rd Defendant in 2006.
Learned Counsel for the Appellant S. Atung submitted that the Appellant’s Brief of Argument is dated and filed on 6/5/2014.
The 1st Respondent’s Brief of Argument is dated and filed on the 5th day of May, 2014.
The 2nd and 3rd Respondents’ Brief is dated and filed the 12th day of May 2014. All the Counsel adopted their Briefs as their argument in determining the Appeal.
Learned Counsel for the Appellant, formulated three issues for determination as follows
ISSUE NO. 1
“Whether or not the final decision earlier given by another Judge of the High Court of Justice of the Federal Capital Territory, Abuja, declining Jurisdiction and striking out suit No. FCT/HC/CV/1371/2007, created issue estoppel and/or estoppel per rem Judicata barring or precluding the 1st Respondent from instituting this fresh suit No. FCT/HC/CV/496/2009 to relitigate the Jurisdictional questions already decided upon in the earlier decision which had not been appealed against”. (2nd, 3rd and 4th grounds of Appeal).
ISSUE NO. 2
“Whether in the circumstances of this Appeal, another Judge of the same High Court of Justice of the Federal High Court of Justice of the Federal Capital Territory, Abuja, had the Jurisdiction and competence in the present case to re-open or set aside or review or sit on appeal on the earlier final and subsisting decision of another Judge of co-ordinate or concurrent Jurisdiction in suit No. FCT/HC/CV/1371/2007 declining Jurisdiction, which decision had not been appealed against (Ground 7 of Appeal)”.
ISSUE No. 3
“If the answer to issue 1 supra, is in the affirmative, whether it amounted to an abuse of Court process on the part of the 1st Respondent instead of appealing against the earlier decision of the same High Court declining Jurisdiction he decided to institute a fresh action before the same Court to relitigate the same questions or issues which had been decided upon by another Court of competent Jurisdiction”.
Learned Counsel for 1st Respondent Mr. A. B. Anachebe, SAN formulated one issue for determination to wit:
“Whether, on available facts and law, estoppel per rem Judicata can rightly operate against the 1st Respondent’s 2009 suit as constituted, on the premise of an earlier Ruling striking out his agent’s 2007 suit for purported lack of locus standi prior to any determination on the merits”.
Learned Counsel for the 2nd and 3rd Respondents also formulated sole issue for determination as follows:
“Whether in view of the facts of the suit subject of this appeal, the trial Court was seized with Jurisdiction to determine the suit”.
In determining issues in an appeal, issue in the grounds of appeal filed, to be argued, are meant to be identified. See Sanusi v. Ayoola (1992) NWLR (Pt. 265) 275. The issues for determination formulated by parties must be based on the grounds of appeal – see Udeh v. Okoli (2009) 7 NWRL (Pt. 1141) 571
The three issues formulated by the Appellant are inter-related with the issues formulated by the 1st, 2nd and 3rd Respondents Counsel. The lone issue of the 1st Respondent which reads
“Whether on available facts and law, estoppel per rem Judicata can rightly operate against the 1st Respondent is 2009 suit as constituted, on the premise of an earlier Ruling striking out his agent’s suit for purported lack of locus standi prior to any determination on the merits” relates to the 1st issue for determination of the Appellant.
While the 2nd and 3rd Respondents, sole issue for determination to wit.
“Whether in view of the facts of the suit subject of this appeal, the trial Court was seized with Jurisdiction to entertain and determine the suit”
is inter-related with the Appellant’s 2nd issue for determination I therefore marry the respondents issues with the appellants issues for determination in this Appeal. In the circumstance the issues as formulated by the Respondents having been married together with Appellants issues for determination, I shall be guided by the issues raised by the Appellant in this Appeal.
ISSUE No. 1 and ISSUE 3.
Learned Counsel for the Appellant argued issues 1 and 3 together because of their relationship in the following terms:
“If the answer to issue 1, supra, is in the affirmative whether it amounted to an abuse of Court process on the part of the 1st Respondent, instead of appealing against the earlier decision of the same Court declining Jurisdiction he decided to institute a fresh action to relitigate the same questions”.
Learned Counsel for the Appellant referred to the Judgment of the Lower Court at pages 217-219 concerning the plea of res Judicata as follows:
“What the defence Counsel raised in their objection is that the ruling of His Lordship Hon. Justice Jamilu Y. Tukur is final and that the only option left for the present Plaintiff is to appeal to the Court of Appeal and not file another suit which will amount to an abuse of Court process. I agree entirely with their submission that the ruling of Hon. Justice Jamilu Y. Tukur is final decision. Even though his Lordship did not adjudicate on the substantive suit, by the nature of the ruling he cannot go back to the case again, that is what makes the ruling a final decision. In other words he cannot vary, re-open or set aside the said decision”.
“The fact that the ruling of His Lordship delivered on the 4th day of November, 2008 had been adjudged as final decision by this Court does not affect the validity of the present suit in other words, the finality of the said ruling does not affect the validity of the present suit, the simple reason is that, the said ruling which was adjudged as final by this Court, the Plaintiff was indicated to be Dr. T. E. Malumi and in the present Originating Summons the Plaintiff is Alhaji Idris Zago; for plea of res Judicata to succeed the parties in the two cases must be the same, the issue of res Judicata raised by the two Counsel must fail, same is hereby dismissed”. See Ibenye v. Agwu (1998) 11 IVWLR (Pt. 575) 375.
Learned Silk submitted that from the above quotation the doctrine of res Judicata had been satisfied by the Appellant except for requirement that the Parties in the two cases must be the same. He said the meaning and application of doctrines of res Judicata, issue estoppel or estoppel per rem Judicata have been pronounced by the Supreme Court and the Court of Appeal to point to the same thing and are usually used in Court as a defence to an action. They are used to show that the issue or issues raised in an action in Court have been determined and adjudicated in previous action by a Court of competent Jurisdiction and cannot be relitigated in any Court. He referred to Anwoyi v. Shodeke (2006) 13 NWLR (Pt. 996) 34 – per Kalgo, JSC, He also referred to Adebati v. Babalola (1995) 7 NWLR (Pt. 408) 383 and Fadiora & Anor v. Gbadebo & Anor (1978) 3 SC 219 at 228-229.
He submitted that it is settled law by Plethora of authorities that a Plaintiff is caught by the plea of estoppel per rem judicatam where it is established by the defendants’.
1) That Parties or (their privies) in the previous case are the same as in the present case.
2) That the issue and subject matter or the res litigated upon in the previous action is the same as in the present action.
3) That the adjudication in the previous case must have been given by a Court of Competent Jurisdiction; and
4) The previous Judgment relied upon must have finally decided the issues between the parties.
That where any of these essential ingredients is missing, a plea of res Judicata must fail. He referred to Bamishebi v. Faleye (1987) 2 NWLR (Pt. 54) 51 among other cases.
The Learned Silk argued that the conclusion of the trial Judge that the parties in the two cases have not been proved to be the same is erroneous, because both Alhaji Idris Zago and his Privy/Agent/Attorney Dr. T. E. Malumi are parties and/or privies in both the previous suit and the present suit. He said Dr. Malumi’s standing in both proceedings is predicated on the power of Attorney exhibited and relied upon in both the previous suit and the subsequent fresh suit. He said the power of Attorney relied upon in both suits created an estate interest by Alhaji Idris Zago as Donor in favour of Dr. T. E. Malumi as Donee as manifested at pages 179-181, para 1-5 of page 180 of the Record. He argued that Dr. Malumi is therefore a privy to Alhaji Idris Zago. He relied on the case of Alhaji Madi Mohd Abubakar v. Bebeji Oil and Allied products Ltd & Ors (2007) 18 NWLR (Pt. 1066) 310 per Mukhtar, JSC (ASTW) at 366-369 par B-D which he said is similar to this case.
Learned Silk for the Appellant finally submitted on issue of estoppel that it is trite law that once an issue has been raised and distinctly determined between the parties, neither party can re-open the issue so decided. He referred to Ogbogu v. Ndiribe (1992) 6 NWLR (Pt. 245) 4 at 69 among other cases.
On the related issue of ABUSE OF COURT PROCESS in Issue 3, Learned Counsel submitted that the act of the 1st Respondent instituting a fresh action after the final and subsisting decision in the previous suit clearly amounted to an abuse of court process. He referred to Onyeabuchi v. INEC (2002) 8 NWLR (Pt. 769) 417. He urged the Court to allow the Appeal and uphold issues 1 and 3.
Learned counsel for the 1st Respondent argued that since the suit was not determined on the merit but only struck out for want of locus standi, the suit can be determined on the merit upon a fresh suit by a proper plaintiff. He referred to Adebayo v. Babalola (1995) 7 NWLR (Pt. 408) 383 and Isokwa Oil & Marketing Ltd v. UTC Plc (2003) FWLR (Pt. 173) 130 which affirmed this settled principle of law. He submitted that res Judicata cannot in the circumstance of this case apply to the suit of 2007 to operate as a bar to the subsequent suit of 2009, when the former was neither heard nor determined on merit. He argued that the person claiming res in 2009 suit is the original allottee, Alhaji Idris Zago not Dr. Malumi who was only his agent. He submitted that even if the Plaintiff’s agent Dr. Malumi in the 2007 suit lacked locus standi (though not conceded) same cannot be said of his principal, Alhaji Idris Zago who filed the 2009 suit.
1st Respondent’s Counsel argued further that the issue in the 2007 suit/Ruling was the locus of Dr. Malumi to sue in his name and not the locus of Alhaji Zago to sue or appoint Dr. Malumi to sue on his behalf. He said as the agent, Dr. Malumi in 2007 suit did not claim title or right of occupancy over the res, the power of Attorney donated to him by Alhaji Idris Zago need not be registered under the Land Instrument Registration Act being an exception to the requirements of section 15 thereof. He referred to Okoye v. Dumez (1985) 1 NWLR (Pt. 4) 783 at 803 SC and Ogwunedu v. Onwumere (1994) 1 NWLR (Pt. 321) 375 SC among others.
It is also his submission that even though the 2007 suit was initiated by writ of summons, pleadings had not closed, the Lower court hastily aborted the plaintiffs claim, when issues are yet to be joined as to the purpose for which Dr. Malumi sought to rely and tender the said power of Attorney donated to him by Alhaji Zago. He said the haste decision cannot be said to be valid, and estoppel per rem judicatam cannot properly operate on the invalid suit of 2007 to bar the subsequent 2009 suit. He relied on Omnia Nig Ltd v. DYK Trade Ltd (Supra)
He submitted that a crucial pre-condition for successful plea of res judicata is that the parties or their privies in both suits must be the same. But in the submission of the defence and the Ruling of the trial court in 2007 suit, Dr. Malumi and Alhaji Idris Zago were not the same. While Alhaji Idris Zago was adjudged the principal, Dr. Malumi was the agent and the Lower court never saw then as privies. On the contrary the Appellants counsel in his brief said Dr. Malumi and Alhaji Idris Zago are now the same privies, such that any action by either covers the other.
Learned counsel for the 1st Respondent also argued that the finding of the lower court that the Ruling of 2007 suit is final and distinguishing the 2007 and 2009 suit, the Lower court cannot sit on Appeal over a Ruling of a Court of co-ordinate Jurisdiction. He referred to Nicon v. P.I.E. Comp. Ltd (1990) 1 NWLR (Pt. 129) 697. He urged the Court to dismiss the Appeal as unmeritorious.
For a plea of estoppel per rem judicatam to succeed the party relying on it must establish the following requirement or pre-conditions namely.
(a) That the parties or their privies are the same in both the previous and the present proceedings.
(b) That the claim or issues in dispute in both actions are the same.
(c) That the res or the subject matter of litigation in the two cases is the same.
(d) That the decision relied upon to support the plea of estoppel per rem Judicata is valid, subsisting and final.
(e) That the Court that gave the previous decision relied upon to sustain the plea is a Court of competent jurisdiction.
Unless the above requirements of the doctrine are fully established, the plea of estoppel per rem-judicatam cannot be sustained. See Makun v. Federal University (2011) 6 SCNJ 296 at 300.
The contention of the Appellant is that the Ruling of the trial Court in suit No. FC/HC/CV/137/2007 is final and cannot be relitigated upon in the subsequent suit No. FCT/HC/CV/496/2009. The 1st Respondents Counsel argued that as the Ruling in 2007 suit was not on merit and issues have not been joined between the parties the Ruling is not final.
I have not seen the Judgment of the Lower court in the suit of 2007 and my attention has not been brought to it in the Record of Appeal. However the learned trial Judge in suit of 2009 which gave rise to his Appeal, quoted paragraph 3 of page 6 of the Ruling in 2007 suit attached to the Notice of preliminary objection in his Judgment at page 217 of the Record of Appeal, which reads.
“I have looked at the power of Attorney and by its provision I am satisfied that it is an instrument affecting Land and which by the provision of section 15 of the Land Registration Act Cap 515 laws of the Federation of Nigeria (Abuja) 1990, requires Registration”.
It is therefore clear from the above, that the writ of Summons filed in the suit of 2007 was challenged by way of preliminary objection, hence the said Ruling. It is also clear there is no adjudication on the substantive suit. The question now, is whether that suit of 2007 constitutes a bar to the suit of 2009.
The 1st Respondent’s contention that pleadings had not closed and issues having not been joined between the parties implies that there is no statement of defence to the Plaintiffs writ in the 2007 suit by the Appellant (as the defendant in that suit). Also in the suit of 2009, the trial Court at page 212 of its Judgment of Record of Appeal said:
“The 3rd defendant (Appellant in the Appeal) filed a preliminary objection to the Originating Summons of the plaintiff (1st Respondent in this Appeal), the 3rd defendant did not file any counter affidavit to the Originating Summons of the Plaintiff”
It means therefore in both suits the Appellant did not file his defence to be claims against him but challenged the suits by way of preliminary objection. The law is that where a defendant is served with the Writ of Summons and statement of claim without filing a statement of defence, he brought a preliminary objection to terminate the action on the main ground of law that the Plaintiff/Respondent lacked locus standi to institute the action. In taking this course the defendant/Appellant is deemed to have accepted and agreed with all the averments contained in the statement of claim. See Onafowokan v. Wema Bank (2011) 5 SCNJ 266 AT 282. As the Appellant failed to file a counter affidavit to the Originating Summons in 2009 suit, he is deemed to have admitted the averments of the 1st Respondent in the affidavit in support of the Originating Summons in the suit of 2009, the subject of this Appeal. The next question is whether the Ruling of 2007 as the Appellant’s Counsel wants us to believe is final, in line with the course adopted by the Appellant in challenging the suits against him.
In Omnia (Nig.) Ltd v. DYK Trade Ltd (2007) 15 NWLR (Pt. 1056) 576 – Mukhtar, JSC (ASTW) held that where the cause of action is really the same and has been determined on the merits, and not on some ground which has ceased to operate when the action is filed, the plea of res Judicata would succeed. In the instant case the claims in their earlier case stated in the particular of claim and based on a complaint of the use of an unregistered trade mark. Thereafter the trade mark complained of had been registered and the registration number stated in the statement of claim, doctrine of res Judicata did not apply.
The above decision of the Supreme Court is in all fours with this Appeal. This is because the objection of the Appellant in suit of 2007 is on the ground of locus standi of Dr. Malumi an agent of a disclosed principal in whose name the suit was filed and not in the name of the Principal. The 2009 suit filed by an Originating Summons is in the name of the Plaintiff (1st Respondent) as the Principal with this authorized agent Dr. Malumi. It follows therefore that the suit of 2009 in line with the decision of the Supreme Court above is a cure in the deficiency on the ground of objection in suit of 2007, in which case the doctrine of estoppel per rem judicatam will not apply. Not only that, the appellant’s counsel and 2nd and 3rd Respondents’ counsel in their brief of argument submitted that the appellant has the requirements of estoppel per rem Judicatam to apply except that the Parties are not the same in the previous case of 2007 suit. That admission that the parties are not the same in the previous suit means that the doctrine of estoppel will not apply having fall short of the requirements in the operation of estoppel per res Judicatam.
The test for determining whether a decision is final or interlocutory as stipulated in the case of Alor v. Ngene (2007), 12 NWLR (Pt. 1062) 163 by the Supreme Court are;
(a) The nature of the application made to the Court
(b) The nature of the order made.
In the instant Appeal, the nature of the Application made to the Court in 2007 suit was a preliminary objection on the ground of locus standi of the plaintiff to institute the action. The order made by the Lower Court was striking out of the suit.
In order to determine whether the decision of a Court is final or interlocutory, the decision must relate to the subject matter in dispute between the parties and not the function of the Court making the order. Therefore the determining factor is not whether the Court has finally determined an issue, but whether or not it has finally determined the rights of the Parties in the claim between parties. If an order, decision or Judgment of a Court finally and completely determines the rights of the parties in the case, it if final. But if it does not, it is interlocutory. See Alor v. Ngene (supra)
A decision is said to be final where it determines the rights of the parties in the substantive subject matter in dispute and without leaving any option to either party to relitigate over the same subject matter. Thus a decision or order of Court which does not finally dispose of the right of the parties in the subject matter in dispute such as a decision in an issue or issues, or which does not for close the Parties from relitigating over the same subject matter, such as an order striking out a suit, is interlocutory. See Alor v. Ngene (supra)
It means therefore a final decision is the decision in which parties rights have been determined completely, unlike an interlocutory order where the right or claims of the parties in an action have not been looked into and determined by the Court. It follows also that where a decision only dispossess of an issue or issues in the case, leaving the parties to go back to claim other rights in the Court, then the decision is interlocutory.
Where a suit is struck out, the Plaintiff in most cases had another opportunity to commence action after curing the deficiency which resulted in the striking out of the action. See Alor v. Ngene (supra).
It is equally a common ground that the principle of estoppel per rem Judicatam can only operate on a valid Judgment. The Judgment which is to operate as an estoppel must be final, valid and subsisting one. The argument of the learned counsel for the Appellant that the effect of the 2007 suit is final will not hold in line with the above decisions of the Supreme Court. The above decisions of the Supreme Court being the legal position it follows that the submissions of the Appellant’s Counsel will not hold.
On the issue estoppel relied by the Appellant’s Counsel in this Appeal, the Supreme Court in Makun v. Federal University (Supra) held that once one or more issues have been raised in a cause of action and distinctly determined or resolved between the parties in a Court of competent Jurisdiction, then as a general rule, neither Party nor his agent or privy is allowed to relitigate that or those decided issues all over again in another action between the same parties or their privies on the same issues.
The point here is that contrary to the submission of the Appellant’s Counsel in this Appeal that the parties in the instant case are the same as the parties in the 2007 suit and the subject matter are the same, in the suit of 2007, the said the parties are not the same, and the trial Court upheld their objection on the locus standi of the Plaintiff and the unregistered Power of Attorney of the Plaintiff to institute the action.
The law is that a Party should be consistent in stating its case and also consistent in proving it. He will not be allowed to take one stance in the trial Court and another stance on appeal. Such a shifty attitude must be condemned in strong terms. For the stream of Justice to remain pure, Counsel must at all times be consistent in the presentation of his case see Parcers v. Dancing Sister (2012) 1 SCNJ 1 and 6. It is baffling how the Appellant’s Counsel argued a direct opposite of their position at the Lower Court, Justice is much more than a game of hide and seek.
For issue estoppel per rem Judicatam to operate and succeed, the party relying on it must establish the requirements as stated above in the case of Omnia v. DYK Trade (Supra) where any of the requirements is not satisfied the claim must fail. The Appellant cannot therefore say he satisfied all the requirements for the doctrine to apply in his favour in view of their position in the 2007 suit that the parties are not the same.The doctrine of estoppel per rem Judicata does not therefore apply in the circumstance of this case to constitute a bar to the 2009 suit.
On the related issue of Abuse of Court process on ISSUE 3, Appellants Counsel submitted that the act of the 1st Respondent instituting a fresh action after the final and subsisting decision in the previous suit amounted to an abuse of Court process. The Supreme Court in the case of ACB v. Nwaigwe & Ors (2011) 1 LPELR 208 held that abuse of Court process includes a situation where a party improperly uses Judicial process to the irritation, harassment and annoyance of his opponent and to interfere with the administration of Justice, where two or more similar processes are issued by a party against the same Party/Parties in respect of the same subject matter or where the process of Court has not been used bona fide and properly.
With respect to the learned counsel, his submission will not hold in view of the fact that while the subject matter is the same in the previous case of 2007 and the present suit of 2009, the parties are not the same as adjudged by the trial Court predicated on the objection of the Appellant at the Lower Court. The Appellant cannot therefore summersault in this Appeal to say that the parties are the same to justify and satisfy the requirements of estoppel per rem judicata. I therefore resolve ISSUES 1 and 3 against the Appellant in favour of the 1st Respondent.
On ISSUE No. 2 married with the issue of the 2nd and 3rd respondent’s sole issue for determination as produced above, the learned counsel for the Appellant referred to Order 43 of the High Court of Federal Capital Territory (Civil Procedure) Rules, 2004 made pursuant to section 259 of the 1999 constitution of Nigeria, the High Court FCT, Abuja exercises appellate Jurisdiction in respect of only decisions from the District Courts etc. But there is no constitution or statutory provision that appeals would lie from the decision of the Judge of the High Court of the FCT, Abuja to another Judge of the same High Court. He submitted that Judicial powers and Jurisdiction of all the Judges of the High Court of FCT, Abuja are the same, concurrent and co-ordinate such that none of them supervises, reviews or sits on appeal over the decision of the other. He argued that it was wrong for the trial Judge to re-open and review the decision of his learned brother as if he was sitting on appeal over the same when the issue of estoppel per rem Judicatam was clearly raised before him. He referred to Onyebuchi v. INEC (Supra) among others. He finally submitted that a Court cannot sit on Appeal over its own Judgment nor reviews the Judgment of coordinate or concurrent Jurisdiction. He referred to Ali Vs AlBishir (2008) All FWLR (Pt. 415) 1681 at 1719-1720 paragraph E-B and Utuk Vs The official Liquidator (2009) All FWLR (Pt. 475) 1774 at 1788-1790 paragraph B-B. He said the issue of estoppel ousted the jurisdiction of the subsequent Court. He referred to Yoye v. Olubode (1974) 105C 2009 at 223-224.
Learned Counsel for the 1st Respondent argued that the finding of the Lower Court in the 2009 suit where he adjudged the Ruling of the 2007 suit to be final cannot be sustained, though it adjudged res Judicata as inapplicable distinguishing the 2007 from 2009 suit. He said Lower Court cannot sit on Appeal over the Ruling of a Court of co-ordinate Jurisdiction delivered in the 2007 suit. He referred to NICON v. P.I.E. Co. Ltd (1990) 1NWLR (Pt. 129) 697.
Learned Counsel for the 2nd and 3rd Respondents Ramalan Jibrin Abdullahi in his brief of argument submitted that the trial judge misconceived the law and facts as to the competence of the suit. He referred to Ex-parte Salami Adesina (1993) 4 NWLR 254 AT 263 paragraph E-G. He argued that the decision in suit of 2007 is a final decision and the only reason in refusing to uphold the principle of res Judicata was that the parties in two suits are not the same. He referred to Green v. Green (1987) 3 NWLR (Pt. 61) 48. He submitted further that assuming but not conceding that the Plaintiff in 2007 suit and the Plaintiff in the present suit, 2009, and Dr. Malumi’s standing in both suits is based on the Power of Attorney, Dr. Malumi can rightly fit into the position of a privy to Alhaji Idris Zago, thus to make the doctrine or res Judicata applicable in this appeal. He referred to Balogun v. Adejobi (1995) 2 NWLR (Pt. 396) 131 at 158-159 among other cases. He said 2007 suit is valid and subsisting because it has not been appealed.
He finally submitted that the subsisting Ruling in the 2007 suit which is valid and final cannot be reviewed by the Lower Court as it lacks Jurisdiction to entertain the suit again. He referred to Yoye v. Olubode (1974) 10 SC 209 at 223-224.
With regard to the submissions of the 2nd and 3rd Respondent’s Counsel on issue of estoppel res Judicatam, I have already dealt with that issue in response to the Appellant’s counsel submissions. I adopt my reasoning there in response to the 2nd and 3rd Respondents submissions.
On the issue of Jurisdiction and the trial Court sitting on Appeal over the Judgment of another Judge of the same co-ordinate Jurisdiction with him, Jurisdiction is the nerve centre of crucial question of competence because if the Court has no Jurisdiction to hear the case the proceedings are and remain a nullity ab initio, however well conducted and brilliantly decided. See Inajoku v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 at 479.
In determining whether the issues, the subject matter of the two actions and the parties are the same, the Court is permitted to study the pleadings, the proceedings and Judgment in the previous action. The Court may also examine other relevant facts to discover what was in issue in the previous case. See Makun v. Federal University (Supra).However not withstanding the fact that a Judge is allowed to study the proceedings and Judgment in the previous action, it is not a license for him to review and conclude on the said Judgment of another Judge with the same inherent Jurisdiction with him.
At page 217 of the Record of Appeal, the trial Judge in its Judgment said:
“I agree entirely with their submission that the Ruling of Hon. Justice Jamilu Y. Tukur is a final decision. Even though His Lordship did not adjudicate on the substantive suit, by the nature of the ruling he cannot go back to the case again, that what makes the ruling a final decision”.
He went further to distinguish the suits of 2007 and 2009 and adjudged that the ruling in 2007 suit as final. It goes to show that the trial Judge in 2009 suit sat over an appeal in the suit of 2007, a decision of a Judge with the same inherent Jurisdiction with him.
It is trite that a Court cannot sit on Appeal over its case. It is not within the Jurisdiction of a Court to interpret the Judgment of a Court of co-ordinate Jurisdiction. See Hydroworks Ltd v. Rimi Local Government (2002) NWLR (Pt. 749) 564 at 588.
Since the trial Judge has no jurisdiction whatsoever to interfere with the Judgment of a Judge of co-ordinate Jurisdiction his finding that the Ruling in 2007 suit is final decision is without Jurisdiction and amounts to a nullity.
I therefore resolve Issue 2 in favour of the Respondents against the appellant.
The Appeal is unmeritorious. It is dismissed.
A cost of N50,000.00k is awarded in favour of the 1st Respondent against the Appellant.
CROSS APPEAL
The Cross-Appeal is against the Judgment of the High Court of the Federal Capital Territory, Abuja Judicial Division (Coram S. E. Alade Toyinboh J.) dated 30/6/2009 in suit No. FCT/HC/CV/496/2009. The Notice of Cross-Appeal dated 26/9/2009 was filed on 10/2/2010.
Learned counsel A. B. Anachebe, SAN adopts the Cross Appellant’s brief of argument dated and filed on 5/5/2014. He urged the Court to allow the Cross-Appeal.
Counsel for the 1st Cross-Respondent S. Atung adopts the 1st Cross-Respondent’s brief of argument dated and filed on 12/5/2014.
Counsel to the 2nd and 3rd Cross-Respondent R. J. Abdullahi also adopts the 2nd and 3rd Cross-Respondents’ brief dated 12/5/2014.
The facts of the case are that the Cross-Appellant was the original allottee of plot 852 Cadastral Zone A04 Asokoro District, Abuja (Municipally called Plot 62 Ali Akilu Crescent, Asokoro Abuja) having been originally/earlier allocated to him by the 2nd Cross Respondent in the year, 2001. He took his Right of Occupancy to AGIS for re-certification in the year, 2006 when it was purportedly revoked and re-allocated to the Appellant and issued him with a Certificate of Occupancy.
The Cross-Appellant through his agent Dr. T. E. Malumi filed a Writ of Summons in suit No. FC/HC/CV/1371/2007 on behalf of his Principal, the Cross-Appellant. On the objection of the 1st Cross-Respondent the suit was struck out for want of locus standi on Dr. Malumi, and that the Power of Attorney was not registered in accordance with section 15 of the Land Registration Act.
The Cross Appellant now instituted another action in his name by Originating Summons in suit No. FCT/HC/CV/496/2009 against the 1st-3rd Cross-Respondents. The 2nd and 3rd Cross-Respondents filed two preliminary objections to the Originating Summons and counter affidavit with annexures attached. The 1st Cross-Respondent also filed a preliminary objection to the Originating Summons but did not file a counter affidavit.
The trial Court determined the preliminary objections and the Originating Summons together. He dismissed the preliminary objections and granted the reliefs sought by the Cross-Appellant. Part of the decision in the Judgment of the trial Court gave rise to this Cross-Appeal.
There is only one ground of Cross Appeal shorn its particulars:
GROUND OF CROSS APPEAL
“The learned trial judge erred in law when he interpreted the Ruling of Tukur, J. delivered on 4/11/2008 in suit No. FCT/HC/1371/2007 – Dr. T. E. Malumi (suing as authorized Attorney of Alhaji Idris Zago) v. Hon. Minister, FCT & ORS and adjudged same to be a final decision”.
RELIEFS SOUGHT
An order allowing the Cross-appeal and setting aside the decision of the lower Court which adjudged the ruling of Tukur J. in suit No. FCT/HC/CV/1371/2007 to be a final decision.
Learned Counsel for the Cross-Appellant Mr. A. B. Anachebe, SAN, formulated a lone issue for determination, in this Cross-appeal to wit:
“Whether the lower Court (in 2009 suit) Coram Alade Toyinbo, J, was called to interpret or rightly adjudged the Ruling of Tukur J. in the 2007 suit as a FINAL decision”
On this lone issue, the learned Silk referred to the Judgment of the Lower Court held in part at page 217 of the Record to wit:
“What the Defence raised in their objection is that the ruling of His Lordship, Hon. Justice Jamilu Y. Tukur is final and that the only option left for the present Plaintiff is to appeal to the Court of Appeal and not to file another suit which will amount to abuse of Court process. I agree entirely with their submission that the Ruling of Hon, Justice Y. Tukur is a final decision. Even though His Lordship did not adjudicate on the substantive suit, by nature of the Ruling he cannot go back to the case again, that is what makes the Ruling a final decision. In other words, he cannot vary, re-open or set aside the said decision”.
He submitted that a Court cannot sit on Appeal over its decision or interpret Judgment of another Court of co-ordinate Jurisdiction, as it does not lie within its Jurisdiction to do so. He referred to Hydroworks Ltd v. Rimi Local Government (2002) NWLR (Pt. 749) 464 at 588 paragraph A-B, NICON v. P.I.E. & Co. Ltd (1990) 1 NWLR (Pt. 129) 697 and Waghoreghor v. Aghenghen (1974) 1 SC 1 at 5
He submitted that it is extraneous to the Jurisdiction of the trial Court to review or interpret the decision of a Court of co-ordinate Jurisdiction but to restrict itself to assenting the obvious fact that the substantive issue in the 2007 suit was not adjudicated upon which precludes the operation of estoppel per rem Judicatam to bar the institution of the 2009 suit. He said it trite law that estoppel per rem Judicatam to operate to bar a subsequent suit, the decision in the earlier suit must be valid and final. He referred to Omnia (Nig) Ltd v. DYK Trade Ltd (2007) 15 NWLR (Pt. 1058) 576 per Mukhtar JSC, Igunbor v. Afolabi (2001) 11 NWLR (Pt. 723) 148 at 165 paragraph D per Karibi-Whyte, and Owon v. Asuk (2008) 16 NWLR (Pt. 1112) 113 at 129-130 paragraph H-A among others.
Learned Counsel, finally submitted that, having not been determined on the merits, the striking out of the 2007 suit cannot rightly be adjudged a final decision, the doctrine of res Judicata will not operate to bar the subsequent 2009 suit. He referred to Oronti v. Onibanjo (2004) 17 NWLR 60 (Pt. 903) at 613. He urged the Court to set aside part of the decision of the lower Court which adjudged the Ruling of Tukar J. in suit No. FCT/HC/CV/1371/2007 to be a final decision and uphold the Cross-Appeal.
Learned Counsel for the 1st Cross-Respondent also formulated sole issue for determination in this Cross-Appeal, which reads:
“Whether in the circumstances of this case the learned trial judge was right in holding the previous Ruling delivered by another learned Judge of the same FCT, High Court striking out an earlier case involving the same subject matter and parties as in this appeal for lack of Jurisdiction qualifies as a final decision”.
He submitted that the applicable law in Nigeria for resolution of the question as to whether a decision of a Court is final or interlocutory in highlighted in the Supreme Court case of Akinsanya v. U.B.A. Ltd (1986) 4 NWLR (Pt. 35) 273 per Kayode Eso, JSC. He submitted further that if the Court of first instance orders that a matter before it be terminated (struck out) for it has no Jurisdiction to determine the issue before it that is the end of all the issues arising in the cause or matter and there is no longer, any issue between the parties in that cause or matter that remains for determination in that Court.
He finally submitted that the trial Judge was right in placing reliance on the nature of the order made. He urged the Court to dismiss the Cross-Appeal and affirm this aspect of the decision of the learned trial Judge.
It is noted that the brief of argument of the 2nd and 3rd Cross-Respondents adopted in this Cross Appeal is the same brief argued in the main appeal. I adopt my earlier reasoning on their submission in the main Appeal.
The issues as formulated by the Cross-Appellant and the 1st Cross-Respondent are inter-related. I therefore marry them together and I adopt the Cross-Appellant’s issue, as the issue for determination in this Cross-Appeal.
In resolving this issue the contention of the Cross-Appellant’s Counsel is that the decision in the 2007 suit No. FC/HC/CV/1371/2007 is not a final decision, the rights of parties, having not, been determined. His argument is that it is only where the rights of the parties have been determined, that the case would be said to be on merit, and the decision therein is final. But where it is only an issue that is decided without hearing the substantive matter to determine the rights of the parties, the decision cannot be said to be final but interlocutory.
In response to the argument of the learned counsel for the Cross-Appellant, learned counsel for the 1st Cross-Respondent argued that if the Court of first instance orders that a matter before it be terminated or stuck out, for lack of Jurisdiction to determine the issue before it, it ends the issues arising in the matter as there is nothing between the parties to be determined before that Court.
In Omonuwa v. Oshodin (1985) 2 NWLR (Pt. 10) 924 at 938-939 Karibi-Whyte, JSC state the law thus:
“Where only an issue is the subject matter of an order or appeal the determination of that Court which is a final decision on the issue or issues before it, which does not finally determine the rights of the Parties, is in my respectful opinion is interlocutory. It can only assume the character of a final Judgment when it finally determines the rights of the parties”.
In view of the above decision of the Supreme Court, the contention of the 1st Cross-Respondent’s Counsel is a total misconception of the law. A final decision therefore is one which determines the right of the parties to conclusion. Having said this, whether the learned trial Judge has jurisdiction to interpret the decision of a Judge with the same inherent jurisdiction with him. Jurisdiction is a lifeline of all trial. A trial without jurisdiction is a nullity. It is not within the Jurisdiction of a Court to interpret, review or vary the decision of a Court of co-ordinate Jurisdiction. A Judge has no business interfering with the decision of another Judge with the same inherent Jurisdiction with him. It is therefore wrong for the learned trial judge in suit No. FCT/HC/CV/496/2009 to interfere with the decision in suit No. FC/HC/CV/1371/2007 and adjudged the decision therein as final. This amounts to sitting on Appeal over its case which he cannot do. The trial Court lacks Jurisdiction to make such interpretation/or finding. Its finding that the decision is final is a nullity. The Cross Appeal is meritorious and it succeeds.
The decision of the Lower Court which adjudged the ruling of Tukur J. in suit No. FCT/HC/CV/1371/2007 to be a “final decision” is hereby set aside.
The cost of N30,000.00k is awarded in favour of the Cross-Appellant against the 1st Cross-Respondent.
ABUBAKAR JEGA ABDULKADIR, J.C.A.: I have read in draft the lead judgment of my learned brother, TANI YUSUF HASSAN, JCA, just delivered.
For the reasons so ably stated by my learned brother, I entirely agree with the reasoning and conclusions therein that the appeal has no merit, I would also dismiss the appeal, the appeal is accordingly dismissed.
I abide by the order as to costs. I am also in full agreement with the reasoning and conclusions reached in the cross-appeal that the said cross-appeal is meritorious and therefore succeeds. The decision of the lower court which adjudged the ruling of Tukur J. in Suit No. FCT/HC/C4/1371/2007 to be a “Final decision” is hereby set aside.
I abide by the order as to costs.
MOORE A. A. ADUMEIN, J.C.A.: I previewed the judgment just delivered by my learned brother, Tani Yusuf Hassan, JCA. My learned brother has exhaustively considered the issues in this appeal and the cross appeal.
I agree that the appeal is devoid of merit, while the cross appeal is meritorious. I also dismiss the appeal and allow the cross appeal.
I abide by all the orders made by my learned brother including the order that the appellant/1st cross respondent pays to the 1st respondent/cross appellant costs totaling N80,000.00 (Eighty thousand naira only).
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Appearances
S. Atung for the Appellant/1st Cross-RespondentFor Appellant
AND
A. B. Anachebe, SAN with Mrs. F. C. Anachebe, C. Jibuaku, and U. Uche for 1st Respondent/Cross Appellant
R. J. Abdullahi for 2nd and 3rd Respondents/Cross-RespondentsFor Respondent
