DUNGUL v. SORO (2020)

DUNGUL v. SORO

(2020)LCN/14138(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Friday, April 24, 2020

CA/J/358/2018

Before Our Lordships:

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

SHEHU USMAN SHAGARI DUNGUL APPELANT(S)

And

ALHAJI UMAR MANU SORO RESPONDENT(S)

RATIO

WHEN IS AN ACTION COMPETENT

Based on the foregoing, the narrow question which I consider should be answered is whether or not the suit number BA/24/2015 by the Appellant is competent and maintainable. First I pose the question, when is an action competent. In order to ascertain the competence of a suit, the determining factor is the claim of the Plaintiff. The Court has a duty to carefully examine the relief claimed to ascertain what the claim is about. See the case of WEST AFRICAN EXAMINATION COUNCIL V AKINOLA OLADIPO AKINKUNMI [2008] 9 NWLR [Pt. 1091] 151. In the case of REV. RUFUS IWUAJOKU ONUEKWUSI AND ORS V THE REGISTERED TRUSTEES OF THE CHRIST METHODIST ZION CHURCH [2011] LPELR- 2702 [SC], Muhammad JSC now Chief Justice of Nigeria said thus:
“For an action to be clothed with competence the following criteria must among others, be complied with. They are as follows:
(1) Existence or accrual of a cause of action.
(a) There must be a cause of action before an intending litigant can seriously think of initiating proceedings in a Court. For the purpose of litigation, a cause of action has been comprehensively defined to entail the fact(s) or combination of fact(s) which gives rise to a right to sue and it consist of two elements; the wrongful act of the Defendant which gives the Plaintiff his cause of complaint and the consequent damage. It is thus constituted by the aggregate bundle of fact which the law will recognize as giving the Plaintiff a substantive right to make a claim for remedy or relief against the Defendant. See FADARE AND ORS V. A.G. OF OYO STATE [1982] 4 SC 1 at 6-7, EGBE V ADEFARASIN [1985] 5 SC 50 at p.87; ALESE V ALADETUYI [1995] 7 SCNJ 40 at 50, SAVAGE V UWECHIA [1972] 1 ALL NWR [Pt. 1] 251 at p. 257, EGBUE V ARAKA [1988] 2 NWLR (Pt. 84] 598; ADESOKAN V ADEGOROLU [1997] 3 SCNJ 1 at p.16. Thus, existence of cause of action is an indispensable prerequisite. This presupposes that for the claimant to establish a cause of action there must be before the Court juristic or judicial person(s) who can make the claim and against whom the Court can make an enforceable order. See A.G. KWARA STATE V. OLAWALE[1993] 1 SCNJ 208 at p. 235.
(b) Each of the factual elements making up the cause of action should have come into being before any proceedings are commenced otherwise the proceedings will be premature and consequently unsustainable. See ESIN V. MATZEN AND TIMIN NIG. LTD. [1966] 1 ALL NLR 233, MOHAMMED V. U.B.A. [1976] 2 FRN 21.
(c) As a cause of action can give rise to more than one remedy and where this is so, all the remedies must be claimed in the same action and not to be pursued by way of separate actions. If one remedy had been claimed in one separate action, the claim for the other is barred by the plea of RES JUDICATA see SAVAGE V UWECHIA (supra), FADARE V. A.G. LEVENTIS & CO LTD [1961] ALL NLR 762, FADARE V. A.G. OYO STATE (supra). A plea of Res Judicata divest a Court of jurisdiction.
(d) An action can be defeated by limitation of time where its time begins to run from the moment of accrual of cause of action. See FADARE V. A.G. OYO STATE (supra).
(e) A cause of action is governed by the applicable law in force at the same time the cause of action accrued and not the law at the time the jurisdiction of the Court is involved. See MUSTAPHA V GOVERNOR OF LAGOS STATE [1987] 2 NWLR [Pt. 58] 539, G OVERNOR OF OYO STATE V. FOLAYAN (supra), KASIKWU FARM LTD V. A. G. BENDEL STATE [1986] 1 NWLR [Pt. 19] 695, OMISADE V AKANDE [1987] 2 NWLR [Pt. 55] 158.
(2) Locus standi of a party suing
(a) A person who intends to litigate must ensure that he/it has the locus standi, i.e. the right or competence to institute proceedings in a Court for redress or assertion of a right enforceable at law. The person whom this right resides as his personal right is the one having locus standi to sue. The law does not recognize busy body with no locus standi to sue. See A.G. KADUNA STATE V HASSAN [1985] 2 NWLR [Pt.8] 453 at 496, ADEFULU V OYESILE (supra), OLORIODE AND ORS V OYEBI AND ORS [1984] 5 SC 1 at p. 16, SENATOR ADESANYA V PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA AND ANOR [1981] 5 SC 112 @ pp. 128-129, OGUNSANYA V DADA [1992] 4 SCNJ 162 at p. 168. A Court will loose jurisdiction if a party has no locus standi. See the case of THOMAS V OLUFOSOYE [1986] 3 NWLR [Pt. 18] 63, BOLAJI V BAMGBOSE [1986] 4 NWLR [Pt. 37] 633.
(b) In the realm of Company/Corporate Law, the principle of law enunciated in the case of FOSS V HARBOTTLE [1943] 2 461 in relation to locus standi, that, subject to certain exceptions, the proper Plaintiff in an action in respect of a wrong alleged to be done to a company as association of persons in the company or the association of persons itself and not a shareholder or member of the association. Such a shareholder or member of the association would only be fighting the suit of company or the association for which he has no locus standi. See GOMBE V P.W. (NIG) LTD [1995] 7 SCNJ 19” [underline is mine]
The foregoing decision of the apex Court of the country is bounding on this Court. To me all the questions posed in the submission of the learned Counsel representing the Appellant are squarely answered by the foregoing pronouncement of the Supreme Court. Those questions on cause of action, Res Judicata and competency of an action are also provided with answers. Most relevant to the fact of this case is the pronouncement where the law lord said thus:
“… As a cause of action give rise to more than one remedy and where this is so, all the remedies must be claimed in the same action and not to be pursued by way of separate actions. If one remedy had been claimed in one separate action, the claim for the other is barred by plea of RES JUDICATA, see SAVAGE V. UWECHIA (supra), FADARE V. A.G. LEVENTIS AND CO. LTD [1961] ALL NLR 762, FADARE v. A. G. OYO STATE (supra). PER ONIYANGI, J.C.A.

WHETHER OR NOT A PLEA OF RES JUDICATA DIVEST A COURT OF JURISDICTION

A plea of Res Judicata divest a Court of jurisdiction.
(d) An action can be defeated by limitation of time where its time begins to run from the moment of accrual of cause of action. See FADARE V. A.G. OYO STATE (supra).
(e) A cause of action is governed by the applicable law in force at the same time the cause of action accrued and not the law at the time the jurisdiction of the Court is involved. See MUSTAPHA V GOVERNOR OF LAGOS STATE [1987] 2 NWLR [Pt. 58] 539, GOVERNOR OF OYO STATE V. FOLAYAN (supra), KASIKWU FARM LTD V. A. G. BENDEL STATE [1986] 1 NWLR [Pt. 19] 695, OMISADE V AKANDE [1987] 2 NWLR [Pt. 55] 158.
(2) Locus standi of a party suing
(a) A person who intends to litigate must ensure that he/it has the locus standi, i.e. the right or competence to institute proceedings in a Court for redress or assertion of a right enforceable at law. The person whom this right resides as his personal right is the one having locus standi to sue. The law does not recognize busy body with no locus standi to sue. See A.G. KADUNA STATE V HASSAN [1985] 2 NWLR [Pt.8] 453 at 496, ADEFULU V OYESILE (supra), OLORIODE AND ORS V OYEBI AND ORS [1984] 5 SC 1 at p. 16, SENATOR ADESANYA V PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA AND ANOR [1981] 5 SC 112 @ pp. 128-129, OGUNSANYA V DADA [1992] 4 SCNJ 162 at p. 168. A Court will loose jurisdiction if a party has no locus standi. See the case of THOMAS V OLUFOSOYE [1986] 3 NWLR [Pt. 18] 63, BOLAJI V BAMGBOSE [1986] 4 NWLR [Pt. 37] 633.
(b) In the realm of Company/Corporate Law, the principle of law enunciated in the case of FOSS V HARBOTTLE [1943] 2 461 in relation to locus standi, that, subject to certain exceptions, the proper Plaintiff in an action in respect of a wrong alleged to be done to a company as association of persons in the company or the association of persons itself and not a shareholder or member of the association. Such a shareholder or member of the association would only be fighting the suit of company or the association for which he has no locus standi. See GOMBE V P.W. (NIG) LTD [1995] 7 SCNJ 19” [underline is mine]. PER ONIYANGI, J.C.A.

MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the High Court of Justice, Bauchi State in Suit No. BA/24/2018 delivered on the 3rd day of August, 2018 Coram Hon. Justice Lamido Kabiru Umar. In the suit of the Appellant before the trial Court which is under the undefended list, the following reliefs were sought [See the endorsement on the Writ of Summons filed on 29th day of January, 2018 on pages 26-30 of the Record of Appeal].
(a) The sum of Five Million Eight Hundred Naira only [N5,800,000.00] being the monthly profit accruable to the Plaintiff for 29 months from September, 2015 to January, 2018.
(b) 10% interest on the date (sic) of judgment and subsequently 10% interest yearly until the final liquidation of the entire sum.
(c) Cost of action.

The summary of the fact that led to litigations before the trial Court is that the Appellant and the Respondent in August, 2013 voluntarily entered into an agreement of buying and selling of petroleum product which is the business engaged in by the Respondent. By the terms of the agreement, the Appellant advanced the Respondent with the

sum of N4,000,000.00 for the petroleum product business and they agreed that the Respondent who is the active partner in the business will pay to the Appellant N50,000.00 profit on every N1,000,000.00 monthly. By this, the Appellant would be paid N200,000.00 monthly profit on the N4,000,000.00 advanced and being the dormant partner.

It is the case of the Appellant that the Respondent started complying with the terms of the agreement but after sometimes started defaulting in paying the agreed monthly profit despite repeated demands. [See Exhibit “B” and page 10 of the record of Appeal]. Consequently, the Appellant filed suit No. BA/15/2015 at the High Court of Bauchi State seeking for the following reliefs [See pages 11-25 of the Record of Appeal and paragraph 21 of the statement of claim in particular] thus:-
PARAGRAPH 21:-
“WHEREOF THE PLAINTIFF SUFFERED AND WHEREFORE CLAIM AGAINST THE DEFENDANT AS FOLLOWS:
(i) AN ORDER directing the Defendant to pay to the Plaintiff the sum of N6,000,000.00 [Six Million Naira], only being the Plaintiffs’ contribution and all the accrued cumulative profit which is due for the

Plaintiff(sic) as at 1st August, 2015.
(ii) The sum of N700,000.00 [Seven Hundred Thousand Naira] only being solicitor’s professional fees for prosecuting this suit.
(iii) N1,000,000 being general damages for breach of contract.
(iv) Cost of this action.”

The matter went through full trial and in the end, the learned trial judge entered judgment for the sum of N630,000.00 [Six hundred and thirty Thousand naira only admitted by the Respondent and non-suited the Appellant on the rest of the claims denied by the Respondent.

Aggrieved by the outcome of the trial, the Appellant filed an appeal against the judgment at the Court of Appeal Jos Division. Upon hearing of the appeal, the appellate Court allow the appeal, set aside the judgment of the trial Court and entered judgment in favour of the Appellant as per his claim before the trial Court plus N50,000.00 cost against the Respondent. [See the enrolled order of the Court of Appeal marked Exhibit “D” on page 15 of the Record of Appeal].

Regardless of the foregoing, the Appellant was still not done with the Respondent hence he filed suit No. BA/24/2018 against

the Respondent on the 29th day of January, 2018 under the Default Summons procedure claiming as follows [See page 27 of the Record of Appeal].
(a) The sum of Five Million Eight Hundred Naira only [N5,800,000.00] being the monthly profit accruable to the Plaintiff for 29 months from September, 2015 to January, 2018.
(b) 10% interest on the date of judgment (sic) and subsequently 10% interest yearly until the final liquidation of the entire sum.
(c) Cost of action.

The Respondent joined issues with the Appellant on the later suit, denied liability and also filed a notice of preliminary objection challenging the competence of the suit and the jurisdiction of the Court on the following grounds [See pages 57 and 58 of the Record Appeal].
(1) That the Plaintiff/Respondent’s action as presently constituted is res judicata (sic) as same has already been determined by competent Court of jurisdiction.
(2) That no cause of action exists for the Plaintiff/Respondent to maintain this action.
(3) That this action is incompetent and constitutes an abuse of Court process.
(4) That this Court lacks the requisite jurisdiction to

hear and entertain this suit.
RELIEF SOUGHT
(1) An order of this Hon. Court striking out the suit for want of jurisdiction.
(2) And for such further order as the Honourable Court may deem fit to make in the circumstance of the case.

Upon hearing of the Notice of Preliminary Objection, the learned trial Judge in his considered Ruling upheld the objection and struck out the suit by the Appellant. Against that Ruling hence this appeal which is predicated on the Notice of Appeal dated 6th day of August, 2018 and filed on the 7th day of August, 2018.

It has three grounds and seeking for the following reliefs. [See pages 104-106 of the Record of Appeal].
RELIEFS SOUGHT
(a) An order allowing the appeal and setting aside the ruling of the lower Court.
(b) An order assuming jurisdiction and determining the substantive suit, all the necessary materials for doing so having been duly filed.
(c) An order granting all the reliefs sought by the Plaintiff.

Consequent upon the transmission of the Record of Appeal on the 4th day of September, 2018, the Appellant’s brief of argument authored by Patrick Owoicho Esq. and

dated 14th day of September, 2018 was filed. In the said adopted brief of argument, the following lone issue was formulated for the determination of the appeal.
“Whether the trial Judge was right in declining jurisdiction and striking out the plaintiff’s case” [Grounds 1, 2 and 3]

On behalf of the Respondent, the lone issue formulated by the Appellant was adopted for the determination of this appeal. That issue will therefore be adopted by me for the determination of the appeal.

The contention of the learned Counsel representing the Appellant is that the learned trial judge was wrong in holding that what was left for the Plaintiff is to apply for execution of the previous judgment. He argued that the conclusion of the learned trial judge was a gratuitous opinion which did not flow from the case presented because in nowhere in the twelve pages of the Ruling did the trial judge give any opinion why the Plaintiff cannot maintain a fresh suit for the interest that accrued after August, 2015 and hence no reason advanced for upholding the preliminary objection. He therefore submitted that all the learned trial judge did was to

reproduce the arguments of Counsel and concluded that what is left to the Plaintiff is to apply for the execution of the judgment of the Court of Appeal in his favour. The Court neither expressly say that the suit constituted an abuse of Court process nor that it was caught up by the doctrine of Res Jdicata. He contended that there is no nexus between the previous suit and the subsequent suit by the Appellant. He added that the previous suit sought for a refund of the principal sum contributed into the business and all the accrued profit as at 1st August, 2015 whereas in the later suit, the claim is limited to the profit that had accrued after 1st August, 2015 till January, 2018. It is his case that the claims are not the same even if they arose from the same fact. He added that the proper thing was for the trial Court to look at the merit of the case and determine from the affidavit and facts presented by either party whether or not the contract had been terminated. The trial Court’s conclusion that the Plaintiff has terminated the contract by the previous suit was in error of rewriting the agreement between the parties [Exhibit “A”] which

did not specify when the contract would end. He relied on the case of ZAKHEM V. NNEJI (2006) 26 NSCQR page 314 at 317. He contended that it is not in doubt that Exhibit ‘A’ upon which the Plaintiff built his case did not specify the date for the termination of the agreement and that the termination of the agreement is an issue of fact which must be proved by evidence whether oral or documentary. It is his contention that the trial Court merely speculated on the termination of the contract which was never proved in the Preliminary Objection and struck out the case of the Plaintiff. He added that it is the pleading of parties that determines whether or not the Court has jurisdiction over the matter or case before it. He relied on the case of ONI V. CADBURY NIG. LTD [2016] 9 NWLR [Pt. 1516] page 80 and that it is the law that no cause or matter is prima facie deemed to be beyond the jurisdiction of a superior Court unless it is specifically or expressly shown to be so. He relied on the case of MUSACONI LTD V. ASPINALL [2013] 14 NWLR [Pt. 1375] page 453 at 404.

On the applicability or otherwise of the doctrine of Res judicata, contended by the

Respondent, he submitted that the relevant factor is that the claim in the two suits must be same. He relied on the case of COLE V. JIBUNOH [2016] 4 NWLR [Pt. 1503] page 499 at 539. He added that the issue of abuse of Court process is equally not applicable. He argued that abuse of Court process is the misuse of judicial process to the annoyance and irritation of another. The case of LADOJA V. AJIMOBI [2016] 10 NWLR [Pt. 1519] page 87 at 128-129 was relied upon. Considering the dissimilarity between the reliefs sought in the two cases and also in view of the fact that the earlier case had been concluded before the latter case was instituted, it cannot be said that the Plaintiff case constitute an abuse of Court process. It is his contention that since the appeal bothers entirely on the affidavit filed by both parties and Exhibit annexed and not on the demeanor or witnesses, this Court is perfectly entitled to intervene and reconsider the exhibits with a view to arriving at different verdict. He cited the case of GEORGE ABI V. CBN [2012] 3 NWLR [Pt. 1286] page 1 at 27, ONWUZURUIKE V. EDOZIEM [2016] 6 NWLR [Pt. 108] page 215 at 239. He submitted that the failure

of the trial judge to properly evaluated the documentary evidence ultimately led to the decision of striking out the case of the Appellant despite the existence of a triable issue which should have necessitated the consideration of the case on its merit to ascertain whether indeed there was evidence on the record to buttress the claim of the Plaintiff that the contract was subsisting. This occasioned a miscarriage of justice. He queried the issue of profit of the business between the date the Plaintiff predicated his previous claim [1st August, 2015] up till the date the Plaintiff finally won at the Court of Appeal as per Exhibit “D” at page 41 [12th January, 2018]. He added that it is this profit that accrued lis pendis that the Plaintiff want the Respondent to account for. He argued that the Defendant should not benefit from his breach of the contract and should not lure the innocent Plaintiff into a trap in the guise of a business venture and in an attempt to deny him of his own share of the business he frustrated which made the Plaintiff to approach the Court and which the trial lasted for three years. He submitted that the learned trial judge

did not consider that situation. He added that throughout the period between September, 2015 to January, 2018, the period of the later claim, the Defendant was still ineffective possession of both the principal contribution and even the accrued profit due to the Plaintiff and still in the business of buying and selling of fuel, further that since there is evidence on the existence of the contract and no evidence of its termination, the Appellant can seek for the relief sought. He argued that the Defendant’s position on this agreement changes from Court to Court depending on what is at stake. When the agreement formed the fulcrum of the Plaintiff’s case before the previous Court he was quick to challenge its voluntariness. Having agreed that there was such voluntary agreement which he said has been overtaken by events, he submitted that the Courts do not allow parties to change their case in Court. He cited the following cases U.T.B. Vs. DOLME TSCH [2007] 16 NWLR [Pt. 106] page 520 at 529 Ratio 8, EMENIKE V. PDP [2012] 12 NWLR [Pt. 1315] page 556 at 593. He urged the Court not to believe the wavering and inconsistent party who has never wanted the

Plaintiff to get his due from the agreement beyond the six hundred and twenty thousand naira which he reluctantly admitted at the previous Court. Further he urged the Court to hear the substantive application on its merit as if it were the trial Court by virtue of Section 15 of the Court of Appeal Act which gives the Court wide power to assume jurisdiction like the Court of first instance. He referred to the case of BENSON V. COP [2016] 12 NWLR [Pt. 1527] page 445 at 455. He urged the Court to hear the application on its merit, allow the appeal and grant all the reliefs sought in the Writ of Summons.

On behalf of the Respondent, it is submitted that the trial judge was right to have declined jurisdiction and struck out the Appellant’s suit. He contended that the Appellant’s suit is predicated on Exhibits “A” & ”A1” being the agreement between the Appellant and the Respondent wherein the former advanced the sum of N4,000,000.00 with the understanding that he will be entitled to N50,000.00 at the end of every month on each One Million. It is his contention that the Appellant’s action can only survive if only

Exhibits “A” and “A1” is still in existence and which is not. He submitted that the Appellant cannot benefit from a non existing agreement or an agreement which he has personally chose to terminate by Exhibit “B” through which the Appellant demanded from the Respondent his principal contribution plus the accumulated profit. He submitted that it is trite law that notwithstanding the principle of sanctity of contract that the Court has duty to construe the surrounding circumstances of the parties in order to discover the intention of the parties. He referred to the case BFI GROUP CORPORATION V. BUREAU FOR PUBLIC ENTERPRISE [2012] 7 SC [Pt. 111] 1. Conceding to the submission by the Appellant that Exhibits A & A1 are silent on how the agreement between the parties would be terminated. In the absence of that he submitted the Court cannot close its eyes to the conduct of the parties. He added that the Court is duty bound to construe the surrounding circumstance including written or oral statement so as to disclose the intention of the parties. The Appellant from the surrounding circumstance of this case among many option open

to him after the Respondent had failed to perform his obligation, has chosen to terminate the agreement by Exhibit “B”. He argued that the position of the law is that if one party to a contract commit a breach thereon, if that breach is something that goes to the root of the contract, the other party has the option, to treat the contract as existing and sue for specific performance or may elect to hold the contract as ended; i.e. no longer binding on him while retaining the right to sue for the breach. See MANYA V. IDRIS [2000] FWLR [Pt. 23] 1237 R. 6. It is his case that in the case at hand, the Respondent did not hesitate in choosing the later option hence the contractual relationship of buying and selling petroleum product and monthly profit of N50,000.00 on each One Million ceased to exist the very day the Appellant caused his solicitor to issue Exhibit B to the Respondent, demanding for the principal contribution plus the accumulated profit which was due but unpaid. The Appellant has by implication terminated the existence of Exhibits A & A1 having done that, the Appellant cannot claim any benefit therein. He submitted that an agreement

cannot continue to exist in perpetuity where one party to the agreement has specified his intention not to be interested again. He relied on BFI GROUP CORPORATION V. BUREAU OF PUBLIC ENTERPRISE (supra). It is his argument that if assuming the agreement was still existing, the previous action with suit No. BA/15/2015 filed by the Appellant had frustrated the agreement. He cannot be in Court for his principal plus accumulated profit and at the same time be expecting the Respondent to be doing business with the same let alone expecting the monthly profit of N50,000.00k on each One Million. He added that the submission of the Appellant that the Respondent was doing business during the pendency of the pervious action suit No. BA/51/2015 to be entitled to N50,000.00 monthly profit is misconceived having not placed anything before the trial Court or this Court to show that the Appellant was doing business while the previous action was pending. He submitted that he who assert must prove. He referred to S. 135-137 of the Evidence Act, 2011 Cap. E14 LFN and the case of ONOVO V. MBA AND ORS [2014] 12 SCM [Pt. 2] 576 at 581 R. 1. The submission, he said amount to

speculation and hence he urge the Court to discountenance same because, speculation has no place in law. He referred to the case of FRN V. NASIRU YAHAYA [2018] LPELR – 46379.

On the issue of res-judicata, and in respect of which the Appellant argued that the relief in the present suit is different from the relief in the previous suit and that the principle cannot apply, he submitted in response that the main relief in the previous suit is the same in that the main relief in the previous action with suit number BA/15/2015, that is the principal contribution of the Appellant cannot be severed from the relief in the present suit because the present suit derived its existence from the main relief in the previous action, in that they are the same. He relied on the case of COLE V. JIBUNOH [2016] 4 NWLR [Pt. 1503] at pg. 505 Ratio 3. It is his argument that in the case at hand the Appellant is not disputing the existence of all but one of the conditions for the applicability of the plea of Res Judicata is not present i.e. that the claim in the previous action is not the same as the one in the present action. He argued that the Appellant in order to avoid the

applicability of the doctrine of res judicata, refused to include the relief for the principal sum which is the main relief in the previous action. He added that the present relief sought for accumulated profit cannot stand on its own because they are interwoven and inseparable. He added that the relief for the accumulated profit during the pendency of the previous action which is the only relief in the present suit is ancillary to the main relief in the previous action because it breaths through it and cannot survive alone. The main relief in the previous action gave birth to the relief in the present action and it is caught by the doctrine of res judicata, the relief in the present action is also caught by the doctrine of res judicata, the relief in the present action will also be a victim of the doctrine. He argued that if this is allowed to sail through, the implication would be that the Appellant may again proceed against the Respondent for the accumulated monthly profit while this appeal is pending up to the time of judgment. This will allow matters to proceed on and on and endlessly and in negation of the principle of res judicata which is aimed at

bringing an end to litigation.

He submitted that the learned trial Judge rightly declined jurisdiction. He added that the position of the law is that the Court will not have jurisdiction over the ancillary claims where the principal reliefs fail. He relied on the case of JIMOH V. JIMOH [2018] LPELR – 25941, FGN V OSHIOMHOLE [2004] 3 NWLR [Pt. 860] and L.S.D.P.C V. ADEYEMO BERO [2005] 8 NWLR [Pt. 927] 330. Based on the foregoing, he urged the Court to resolve the issue in favour of the Respondent and dismiss the Appellant’s appeal and affirm the ruling of the trial Court.

Based on my understanding of the fact of this case, the issue culminating into this appeal is very narrow and simple. Looking at the facts leading to this appeal wherein both the Appellant and the Respondent went into a business relationship of selling petroleum product. The Appellant provided a capital of N4,000,000.00 (Four Million Naira) and gave same to the Respondent who already is in the business of selling petroleum product. They both agreed on the terms that the Respondent would pay the Appellant a sum of N50,000.00 monthly as profit on every N1,000,000.00 of the

N4,000,000.00 given by the Appellant. By that agreement the Respondent would pay a total sum of N200,000.00 to the Appellant monthly. The business took off and the Respondent was complying with the terms of the agreement. Later, the Respondent started defaulting in payment of the profit due to the Appellant. This could not be resolved and hence the Appellant initiated the suit number BA/5/2015 against the Respondent and claimed as follows:
(i) AN ORDER directing the Defendant to pay the Plaintiff the sum of N6,000,000.00 [Six Million Naira] only being the Plaintiff’s contribution and all the accrued cumulative profit which is due for(sic) the Plaintiff as at 1st August, 2015.
(ii) The sum of N700,000.00 [Seven Hundred Thousand Naira only] only being solicitor’s professional fees for prosecuting this suit.
(iii) N1,000,000.00 being general damages for the breach of contract.
(iv) Cost of this action.

The suit was initiated sometimes in 2015. Respondent denied liability of the claims. Trial Court entered judgment on the admitted part. Piqued by the decision of the trial Court, an appeal was filed at the Court of Appeal Jos.

The appeal by the Appellant No. CA/J/125/2017 was allowed. The Court of appeal ordered as follows: [See page 41 of the Record of Appeal].
(1) That the appeal succeeds and is hereby allowed.
(2) That the decision of the High Court of Bauchi State in suit No. BA/151/2015 delivered on 29th March, 2017 is set aside.
(3) That I enter judgment for the Appellant as per his reliefs at paragraph 21(i) and (ii) of the statement of claim at the trial Court at page 33 of the record.
(4) That fifty Thousand Naira (N50,000.00) cost is awarded in favour of the Appellant.

Again by a motion dated 26/1/2018 and filed on the 29th day of January, 2018, the Appellant again sought leave of Court to file another suit under the undefended list procedure against the Respondent. The order was granted. [See pages 54 to 55 of the Record of Appeal]
(a) The sum of Five Million Eight Hundred Thousand Naira only [N5,800,000.00] being the monthly profit accruable to the Plaintiff for 29 months from September, 2015 to January, 2018.
(b) 10% interest on the date of judgment and subsequently 10% interest yearly until the final liquidation of the entire sum.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

Upon being served with the processes in the aforementioned suit, the Respondent filed a Notice of Preliminary Objection dated 21st February, 2018 challenging the competence of the action on the ground that it offends the principle of Res Judicata, lack of cause of action and that it constitutes an abuse of Court process and hence the trial Court lacked jurisdiction to entertain the suit.

After hearing the notice of preliminary objection, the learned trial judge in his wisdom upheld the objection and struck out the suit of the Appellant. Against that order of striking out of the Appellant’s suit hence this appeal.

9 NWLR [Pt. 1091] 151. In the case of REV. RUFUS IWUAJOKU ONUEKWUSI AND ORS V THE REGISTERED TRUSTEES OF THE CHRIST METHODIST ZION CHURCH [2011] LPELR- 2702 [SC], Muhammad JSC now Chief Justice of Nigeria said thus:
“For an action to be clothed with competence the following criteria must among others, be complied with. They are as follows:
(1) Existence or accrual of a cause of action.
(a) There must be a cause of action before an intending litigant can seriously think of initiating proceedings in a Court. For the purpose of litigation, a cause of action has been comprehensively defined to entail the fact(s) or combination of fact(s) which gives rise to a right to sue and it consist of two elements; the wrongful act of the Defendant which gives the Plaintiff his cause of complaint and the consequent damage. It is thus constituted by the aggregate bundle of fact which the law will recognize as giving the Plaintiff a substantive right to make a claim for remedy or relief against the Defendant. See FADARE AND ORS V. A.G. OF OYO STATE [1982] 4 SC 1 at 6-7, EGBE V ADEFARASIN [1985] 5 SC 50 at p.87; ALESE V ALADETUYI [1995] 7 SCNJ 40 at 50,

SAVAGE V UWECHIA [1972] 1 ALL NWR [Pt. 1] 251 at p. 257, EGBUE V ARAKA [1988] 2 NWLR (Pt. 84] 598; ADESOKAN V ADEGOROLU [1997] 3 SCNJ 1 at p.16. Thus, existence of cause of action is an indispensable prerequisite. This presupposes that for the claimant to establish a cause of action there must be before the Court juristic or judicial person(s) who can make the claim and against whom the Court can make an enforceable order. See A.G. KWARA STATE V. OLAWALE[1993] 1 SCNJ 208 at p. 235.
(b) Each of the factual elements making up the cause of action should have come into being before any proceedings are commenced otherwise the proceedings will be premature and consequently unsustainable. See ESIN V. MATZEN AND TIMIN NIG. LTD. [1966] 1 ALL NLR 233, MOHAMMED V. U.B.A. [1976] 2 FRN 21.
(c) As a cause of action can give rise to more than one remedy and where this is so, all the remedies must be claimed in the same action and not to be pursued by way of separate actions. If one remedy had been claimed in one separate action, the claim for the other is barred by the plea of RES JUDICATA see SAVAGE V UWECHIA (supra), FADARE V. A.G. LEVENTIS & CO LTD [1961]

ALL NLR 762, FADARE V. A.G. OYO STATE (supra). A plea of Res Judicata divest a Court of jurisdiction.
(d) An action can be defeated by limitation of time where its time begins to run from the moment of accrual of cause of action. See FADARE V. A.G. OYO STATE (supra).
(e) A cause of action is governed by the applicable law in force at the same time the cause of action accrued and not the law at the time the jurisdiction of the Court is involved. See MUSTAPHA V GOVERNOR OF LAGOS STATE [1987] 2 NWLR [Pt. 58] 539, GOVERNOR OF OYO STATE V. FOLAYAN (supra), KASIKWU FARM LTD V. A. G. BENDEL STATE [1986] 1 NWLR [Pt. 19] 695, OMISADE V AKANDE [1987] 2 NWLR [Pt. 55] 158.
(2) Locus standi of a party suing
(a) A person who intends to litigate must ensure that he/it has the locus standi, i.e. the right or competence to institute proceedings in a Court for redress or assertion of a right enforceable at law. The person whom this right resides as his personal right is the one having locus standi to sue. The law does not recognize busy body with no locus standi to sue. See A.G. KADUNA STATE V HASSAN [1985] 2 NWLR [Pt.8] 453 at 496, ADEFULU V OYESILE (supra),

OLORIODE AND ORS V OYEBI AND ORS [1984] 5 SC 1 at p. 16, SENATOR ADESANYA V PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA AND ANOR [1981] 5 SC 112 @ pp. 128-129, OGUNSANYA V DADA [1992] 4 SCNJ 162 at p. 168. A Court will loose jurisdiction if a party has no locus standi. See the case of THOMAS V OLUFOSOYE [1986] 3 NWLR [Pt. 18] 63, BOLAJI V BAMGBOSE [1986] 4 NWLR [Pt. 37] 633.
(b) In the realm of Company/Corporate Law, the principle of law enunciated in the case of FOSS V HARBOTTLE [1943] 2 461 in relation to locus standi, that, subject to certain exceptions, the proper Plaintiff in an action in respect of a wrong alleged to be done to a company as association of persons in the company or the association of persons itself and not a shareholder or member of the association. Such a shareholder or member of the association would only be fighting the suit of company or the association for which he has no locus standi. See GOMBE V P.W. (NIG) LTD [1995] 7 SCNJ 19” [underline is mine]
The foregoing decision of the apex Court of the country is bounding on this Court. To me all the questions posed in the submission of the learned Counsel representing the

Appellant are squarely answered by the foregoing pronouncement of the Supreme Court. Those questions on cause of action, Res Judicata and competency of an action are also provided with answers. Most relevant to the fact of this case is the pronouncement where the law lord said thus:
“… As a cause of action give rise to more than one remedy and where this is so, all the remedies must be claimed in the same action and not to be pursued by way of separate actions. If one remedy had been claimed in one separate action, the claim for the other is barred by plea of RES JUDICATA, see SAVAGE V. UWECHIA (supra), FADARE V. A.G. LEVENTIS AND CO. LTD [1961] ALL NLR 762, FADARE v. A. G. OYO STATE (supra). A plea of Res Judicata divest a Court jurisdiction.”
Considering the fact of the case at hand, it can be confidently and positively answered that there is a cause of action subsisting between the parties, there are proper parties before the Court but the failure of the Appellant to pursue all his remedy emanating from same cause of action in one action has rendered his second suit which is the subject of this appeal for the other reliefs sought

i.e. monthly profit that accrued from September, 2015 to January, 2018 barred by the plea of Res Judicata. On that note, Suit number BA/24/2018 by the Appellant against the Respondent is rendered incompetent and not maintainable. Therefore the answer to the question is in the negative and hence, I resolve the lone issue in this appeal against the Appellant.
Accordingly the appeal lacks merit and same be and is hereby dismissed.

The Ruling of the High Court of Bauchi State in Suit No. BA/24/2018 delivered on the 3rd day of August, 2018 is hereby affirmed
Parties to bear their cost.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Mudashiru Nasiru Oniyangi, JCA. His Lordship has considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide the conclusions reached therein.

The facts of the case leading up to this appeal are that the Appellant and Respondent entered into an agreement in August of 2013 whereby the Appellant gave the sum of N4 Million to the Respondent for the purpose of enhancing the

Respondent’s business of buying and selling of petroleum products and in return for which the Respondent was to pay the Appellant the sum of N200,000.00 monthly as his share of profits. The Respondent made the monthly payments for a period of time and thereafter defaulted and did not make the payment despite repeated demands by the Appellant. This prompted the Appellant to write a letter to the Respondent, Exhibit B, wherein he demanded for his initial contribution of N4 Million together with all the outstanding monthly payments of profits.

When the Respondent failed to heed the demand, the Appellant commenced an action in Suit No BA/15/2015 claiming for (i) the sum N6 Million representing the initial principal sum of N4 Million together with the due monthly payment of profits as at 1 August, 2015; (ii) the sum of N700,000.O0 being his Solicitor’s fees, and (iii) the sum of N1 Million as general damages for breach of contract. This matter went from the trial Court to this Court and judgment was entered in favour of the Appellant by this Court on the 12th of January, 2018.

Now, with the belief and understanding that the contract between

him and the Respondent continued to exist during the duration of case, Suit No BA/15/2015, from the High Court to its completion in this Court in January, 2018, the Appellant commenced the present action in Suit No BA/24/2018 claiming for the sum of N5.8 Million which he said represented the profit accruable to him on the basis of the agreement between him and the Respondent for the months of September 2015 to January 2018, together with pre judgment and post judgment interest at the rate of 10% per annum. The Respondent objected to the action by joining issues with the Appellant and filing a notice of preliminary objection on the grounds of res judicata, no reasonable cause of action and abuse of Court process. The lower Court took arguments on the application and it upheld same and struck out the action. The Ruling of the lower Court is the focus of this appeal.

In berating the lower Court for upholding the preliminary objection, Counsel to the Appellant argued that there was no nexus between the earlier suit and the present suit and that the earlier suit sought for the principal sum contributed to the business plus the accrued profits as at 1st of

August 2015 while the present suit is limited to a claim for the accrued profits from 1st of August 2015 and January 2018. Counsel stated that the claims were not the same though they arose from the same set of facts and that the finding of the lower Court that the Appellant terminated the agreement between him and the Respondent by commencing the earlier suit was wrong and it amounted to the lower Court rewriting the agreement between the parties as the agreement did not specify a terminal date to the payment of profits by the Respondent.

With respect to Counsel to the Appellant, this entire case and his contentions in this appeal were predicated on a misconception of the principles governing the law of contract. The law is that where there is a contract that is both valid and enforceable and one of the parties thereto defaults in the performance of the contract, the other party has one of two options opened to him and these are (i) to regard the contract as still subsisting and sue for specific performance of the contract or for an injunction where the obligation is a negative one; or (ii) to regard the contract at an end and sue for damages for the

breach of it — Anaeze Vs Anyaso (1993) 5 NWLR (Pt 291) 1, Liman Vs Mohammed (1999) 9 NWLR (Pt 617) 116, Mmegwa Vs Texaco (Nig) Ltd (2005) 18 NWLR (Pt 957) 279, Chabasaya Vs Anwasi (2010) 10 NWLR (Pt 1201) 163.

By suing for the sum N6 Million representing the initial principal sum of N4 Million together with the due monthly payment of profits as at 1st August, 2015 and the sum of N1 Million as general damages for breach of contract in the earlier suit, Suit No BA/15/2015, the Appellant treated the agreement between him and the Respondent as being at an end on the date of commencement of the action. The agreement between him and the Respondent ended from that date and the Respondent owed him no further obligation under the agreement. The lower Court was thus very correct when it found that the Appellant terminated the agreement between him and the Respondent by commencing the earlier suit. The Appellant constituted all his claims against the Respondent in respect of the said agreement into the earlier suit and the decision of this Court thereon in January, 2018 constituted res judicata against any and all the claims that the Appellant might have

against the Respondent under the agreement.

The Appellant having opted to end the agreement between him and the Respondent by suing for breach of contract in the earlier suit, this present suit was predicated on a mirage. The present action is a clear abuse of Court process by the Respondent. It is an improper use of the judicial process by a party in litigation to interfere with the efficient and effective administration of justice to the irritation and annoyance of his opponent which is a common feature of all the cases on abuse of process. An abuse of process does not lie in the right to use a judicial process but rather in the manner of the exercise of the right. It consists of the intention, purpose or aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice; it is the inconveniences and inequities in the aims and purposes of the action —Saraki Vs Kotoye supra, Ogoejeofo Vs Ogoejeofo (2006) 3 NWLR (Pt 966) 205 and Ali Vs Albishir (2008) 3 NWLR (Pt 1073) 94. It is trite law that an action caught by a plea of res judicata is one of the recognized species of abuse of

process of Court — Usman Vs Baba (2005) 5 NWLR (Pt 917) 113, Offor Vs Leaders & Co Ltd (2007) 7 NWLR (Pt 1032) 1, Jimoh Vs Akande (2009) 5 NWLR (Pt 1135) 549, Yusuf Vs Ajaokuta Steel Co. Ltd (2010) 2 NWLR (Pt 1177) 167.
The lower Court was on a very strong wicket when it threw out the present action of the Appellant. It is settled law that where a Court finds that a suit filed by a party amounts to an abuse of the process of the Court, it has the duty to dismiss it or to put a final stop, at least as far as that Court is concerned, to the abuse of its process – Onyeabuchi Vs INEC (2002) 8 NWLR (Pt 769) 417. This is the law enunciated by the Supreme Court in the case of Arubo Vs Aiyeleru (1993) 3 NWLR (Pt 280) 126 where it held that once a Court is satisfied that any proceeding before it is an abuse of Court process, it has the power, indeed the duty, to dismiss it. That is to say that once a Court is satisfied that the proceedings before it amount to abuse of process, it has the right, in fact the duty, to invoke its coercive powers to punish the party which is in abuse of its process. Such power is often exercisable by a dismissal of the action

which constitutes the abuse.

It is for these reasons and the fuller exposition of the law in the lead judgment that I too find no merit in the appeal and I hereby dismiss same. I affirm the decision contained in the Ruling of the High Court of Bauchi State delivered in Suit No BA/24/2018 by Honorable Justice Lamido Kabiru Umar on the 3rd of August 2018. I abide the order on costs in the lead judgment

BOLOUKUROMO MOSES UGO, J.C.A.: I agree.

Appearances:

Patrick Owoicho Esq. For Appellant(s)

Mohammed Esq. For Respondent(s)