DAGAZU CARPETS LTD & ANOR v. BORIK INTL COMPANY LTD & ORS (2020)

DAGAZU CARPETS LTD & ANOR v. BORIK INTL COMPANY LTD & ORS

(2020)LCN/14215(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Tuesday, May 19, 2020

CA/K/127/2017

Before Our Lordships:

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

1. DAGAZAU CARPETS LTD 2. ALHAJI ALI DAGAZAU APPELANT(S)

And

BORIK INTERNATIONAL COMPANY LTD 2. UNITED BANK FOR AFRICA PLC (Acquired The Liability Of Liberty Bank Plc) 3. MINISTRY OF LANDS, SURVEY AND COUNTRY PLANNING 4. DANSA FOODS LIMITED RESPONDENT(S)

RATIO

WHETHER THE DOCTRINE OF ESTOPPEL PER RES JUDICATA WOULD AFFECT THE JURISDICTION OF THE COURT

Where a party is prevented from bringing an action on account of Estoppel per res judicata, the Court automatically has no jurisdiction to entertain the suit, once the claim has been ascertained. The jurisdiction of the Court is ousted. See the case of Oluwole vs. Margaret (2012) 12 NWLR (Pt. 1318) 629-631. Ladimeji & Anor. vs. Suara Salami & Ors(1998) 5 NWLR (Pt. 548) 1, 13; Oshodi vs. Eyifunmi (2009) WRN 36 or (2009) 13 NWLR (Pt. 684) 298. Questions relating to the exercise of jurisdiction by the Courts can be taken at any time in the course of proceedings. Since there is no specific format prescribed for raising the issue of jurisdiction, it is absurd to insist that raising such issue (s) has to be in the pleadings only. See: Akegbejo & Ors v. Alega (1998) 1 NWLR (Pt. 534) 459, 468. Once issue of Estoppel per res judicata, is raised (as done in this case on appeal) it has direct relevance to the exercise of Jurisdiction by the Courts in a subsequent claim hence the same can be raised by way of Preliminary Objection, or via a Motion on Notice with a view to terminating the new case at its infancy. Once raised, the Court where the objection is taken is bound to address that objection in lamine and nip the case in the bud if the circumstances of the case so permit it. See: Ntuk v. NPA (2007) 13 NWLR (Pt. 1651) 392, 413 (SC). The apex Court in Ladimeji & Ors v. Suara Salami(1988) 5 NWLR (Pt. 548) 1, 13 (SC) has held that:
“Res judicata operates not only against the party whom it affects but also against the jurisdiction of the Court itself. The party affected is estopped per res judicatam from bringing a fresh claim before the Court and at the same time the jurisdiction of Court to hear such claims is ousted”.
It is thus a misconception of the law to submit that issue of Estoppel per res judicata cannot be raised and taken in lamine. This is far from the truth, given the authorities on this point and as referred to earlier. This Court in Adeniji v. FUTA (2011) 9 NWLR (Pt. 1570) 208, 223 – 224 (CA) has on this point also held thus:
“It has been held in Elabanjo v. Dawodu (supra) that it is a misconception to hold that objection to jurisdiction should be taken after filing a statement of defence; When the objection can be taken depend entirety on what materials are available before the Court. It could be taken on the basis of the Statement of claim, evidence received or even by a motion on Notice supported by an affidavit giving the fact upon which whence is placed. In fact, it could be taken even on the face of the Writ of Summons before filing statement of claim”
See further, the decisions in W.A.P.G.M.C v. Okoye (2004) 2 NWLR (Pt. 857) 232, 247 (C.A); Oluwole v. Margaret (2012) 12 NWLR (Pt. 1318) 629, 631, APC v. INEC (2015) 8 NWLR (Pt. 1462) 531; Efet v. INEC (2011) 7 NWLR (Pt. 1247) 423, 444 NJC v. Agumagu (2015) 10 NWLR (Pt. 1467) 367, 402. PER HUSSAINI, J.C.A.

WHAT CONSTITUTES AN ABUSE OF COURT PROCESS

Abuse of Court process, is a concept of limitless and imprecise definition but it involves the use of judicial process to the irritation and annoyance of the opposite party and the efficient and effective administration of Justice. See the decision in Saraki vs. Kotoye (Supra) and a host of other decided cases including; Barigha vs. PDP (2013) 6 NWLR (Pt. 1349) 108; CBN vs. Ahmed (2001) 11 NWLR (Pt. 724) 369; Dingyadi vs. INEC (2010) 18 NWLR (Pt. 1224) 154; Ogoejoefor v. Ogoejoefor (No. 2) (2006) 3 NWLR (Pt. 966) 205; Okonkwo v. FRN (2011) 11 NWLR (Pt. 1258). Abuse of Court or judicial process will arise in instituting a multiplicity of actions on the same subject-matter against the same opponent. It is also an abuse of Court of process to re-litigate a suit on the same subject-matter over which a Court of competent jurisdiction had made a pronouncement and is pending before an appellate Court. When that occurs, the Courts in exercise of its powers can stop the abuse by declining jurisdiction over that new suit or matter and terminate the suit in Lamine. See: National Hospital, Abuja v. National Commission for Colleges of Education (2014) 11 NWLR (Pt. 1418) 309, 334; Shettima & 3 Ors v. Goni & Ors (2011) (SC) 92, 126. It is for this and other reasons discussed before that issue No. 1 be and same is hereby resolved or favour of the Respondents. PER HUSSAINI, J.C.A.

THE DOCTRINE OF ESTOPPEL PER RES JUDICATA

Estoppel per res judicata, is an important and fundamental concept of law which postulates that no person or party has the vires to relitigate over a matter or suit which has been decided by a Court of competent jurisdiction in respect of the same subject-matter between the same parties or their privies hence the jurisdiction of the Court is ousted relative to the new suit before it. This concept is also founded on public policy which demands that there should be an end to litigation as parties are not allowed to reopen matters or questions over which a Court of competent jurisdiction has decided. See: Cole vs. Jibunoh (2016) 4 NWLR (Pt. 1503) 499, 540 (SC). Additionally, the Courts will intervene to scuttle any attempt being made by a party or parties to reopen a matter or re-litigate same, on account of the new suit being an abuse of the Process of Court. Abuse of Court process, is a concept of limitless and imprecise definition but it involves the use of judicial process to the irritation and annoyance of the opposite party and the efficient and effective administration of Justice. See the decision in Saraki vs. Kotoye (Supra) and a host of other decided cases including; Barigha vs. PDP (2013) 6 NWLR (Pt. 1349) 108; CBN vs. Ahmed (2001) 11 NWLR (Pt. 724) 369; Dingyadi vs. INEC (2010) 18 NWLR (Pt. 1224) 154; Ogoejoefor v. Ogoejoefor (No. 2) (2006) 3 NWLR (Pt. 966) 205; Okonkwo v. FRN (2011) 11 NWLR (Pt. 1258). PER HUSSAINI, J.C.A.

THE CONDITIONS UNDER WHICH THE DOCTRINE OF ESTOPPEL PER RES JUDICATA WOULD OPERATE

The Court observed thus: “From the process filed by the Defendants/Objector; it is clear that this Court had earlier adjudicated on a matter on the same subject-matter in suit No. KDH/KAD/549/98–BORKIR INTERNATIONAL COY. LTD. DAGAZAU CARPETS LTD. (IN RECEIVERSHIP) & 1 OR. The matter went on appeal at the Court of Appeal, Kaduna Division and is presently in the Supreme Court in suit No. SC/325/11 – DAGAZAU CARPETS LTD V. BOKKIR INTERNATIONAL COY. LTD &1 OR…”
By those remarks the Court below clearly alluded to the doctrine of Estoppel per res judicata. However, the conditions under which the doctrine will operate or apply are as follows:
(a) The parties in the previous action and the present one must be the same.
(b) The subject-matter of litigation in the previous action must be the same as the one in the present or new action.
(c) The claim in the previous action must be the same as the one in the present action.
(d). The decision in the previous action must be given by a Court of Competent jurisdiction.
(e) The decision given in the previous action must be final or it must have finally deposed the rights of the parties.See:Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499 (SC) at page 539. See further the decisions in The Honda Place Ltd v. Globe Motors Ltd (2005) 14 NWLR (Pt. 948) 273; Oshodi v. Eyifunmi (2000) 13, NWLR (Pt. 684) 298; Dakolo v. Rewane – Dakolo (2011) 16 NWLR (Pt. 1272) 22, 54; Dauda v. Attorney General, Lagos State (2011) 13 NWLR (Pt. 1265) 427. PER HUSSAINI, J.C.A.

THE FUNCTIONS OF A RECEIVER IN A COMPANY

“The law is that once an existing registered company is in receivership and a receiver or manager is appointed, the former ceases to have any right to deal with its assets. The receiver/manager is thereafter regarded as the agent of the company for the purpose of sealing with the assets in receivership… it is true however that, although the receiver has no title to the assets in receivership, (which still vests in the company), he is the only one who can sue or be sued in respect of the assets while the receivership lasts.”
The provisions of the Companies and Allied Matters Act has made it clear under Section 393(3) that it is the Receiver that has the vires to bring action on behalf of the Company under Receivership. The Section provides thus:
“Without prejudice to Subsection (1) or (2) of this Section, where a Receiver or Manager is appointed for the whole or substantially the whole of a company’s property, the powers conferred on him by the debentures by virtue of which he was appointed shall be deemed to include (except in so far as they are inconsistent with any of the provisions of those debentures) the powers specified in Schedule 11 of this Act.”
By Paragraph 5 of the 11th Schedule to the Companies and Allied Matters Act, the Receiver/Manager has the power to bring or defend any action or any legal proceedings in the name and on behalf of the Company. Issue No. 3 accordingly, is similarly resolved against the appellants and in favour of the Respondents. PER HUSSAINI, J.C.A.

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the High Court of Kaduna State over a point of Preliminary Objection raised before it. The 1st & 4th Respondents, herein, then the objectors before that Court, challenged the competence of Suit No. KDH/KAD/617/2014 instituted by the appellants as Plaintiffs on the grounds that:
(a) The trial Court lacked jurisdiction to entertain the suit against the 1st Respondent.
(b) The suit was an abuse of the process of the Court.
(c) Proper parties were not before the Court
(d) The service of the writ on the 1st & 2nd Respondents out of jurisdiction was incompetent for non-compliance with Section 97 of the Sheriffs and Civil Process Act.

The objectors, in consequence of the above points of objection, sought the order of the Court below to set aside the issuance of that Writ and an Order dismissing suit No. KDH/KAD/617/2014 for lack of jurisdiction.

In the Ruling delivered on the 15th June, 2016, the trial Court declined jurisdiction over the said suit and thus upheld the Preliminary Objection for the reason that the Appellants were

estopped by the consent Judgment in suit No. KDH/KAD/549/98 between BORIK INTERNATIONAL CO. LTD VS. DAGAZAU CARPETS LTD & ANOR. (in Receivership) by virtue of Section 169 of the Evidence Act, 2011.
By the Notice of appeal dated and filed on the 15th September, 2016 the Appellants have appealed to this Court against that Ruling on four (4) Grounds. The grounds without the particulars are as follows:
GROUNDS OF APPEAL
GROUND 1
The learned trial judge erred in law by holding that the assets of the 1st Appellant was still in receivership and that the receiver was the proper person to sue despite the fact that the 1st Appellant was no longer in receivership and the court below so erred when it held in particulars thus:
“The law is quite clear on the issue of receivership and it is clear that the receiver manager appointed by the 2nd Defendant is the right person to maintain this action… it is clear that his action relates to an asset of the 1st Plaintiff which continues to be in receivership and concerns the property that was the subject of this suit at the Supreme Court. Since the property which was sold to the 1st

Defendant formed part of the receivership to which a receiver was appointed (Mr. Dipo Onifade) he should have been the proper person to sue.”
GROUND 2
The learned trial judge erred in law by holding that the Appellants are estopped from maintaining this action when it held in particular thus:
“That the fact that gave rise to the present action arose from the latter as such the Plaintiff is stopped from maintaining this action. From the processes filed by the Defendant/Objectors, it is clear that this Court had earlier adjudicated on a matter on the same subject matter…”
GROUND 3
The learned trial judge erred in law by declining jurisdiction when he upheld a plea of estoppel raised by way of preliminary objection without recourse to trial to ascertain by pleadings and evidence the merit of the plea.
GROUND 4
The decision is against the weight of evidence.
The Appellants, the 1st & 4th Respondents and the 2nd Respondent filed and exchanged their briefs of argument and adopted same at the hearing on 25/2/2020. The 3rd Respondent did not file any brief.

The three (3) issues formulated in the Appellants’ brief of argument which the 1st & 4th and the 2nd Respondents respectively have adopted in their briefs of argument as live issues for determination are as follows:-
(1) Whether the lower Court did not err in law by determining and upholding a plea of estoppel per res judicata solely on a preliminary objection without recourse to trial to ascertain by pleadings and evidence, the merit of the plea before declining jurisdiction? (Distilled from Ground 3 of the Grounds of Appeal.
(2) Whether from the processes filed before the lower Court, the Court was right to have held that the subject matter in this action with Suit No. KDH/KAD/617/2014 is the same with an earlier determined case with suit No. KDH/KAD/549/1998? (Distilled from Ground 2 of the Grounds of Appeal).
(3) Whether the lower Court was right when it held contrary to material fact presented before the Court that the 1st Appellant was under receivership and thus the proper person to initiate this action was the receiver and not the Appellants? (Distilled from Ground 1 of the Grounds of Appeal).

A Summary of the submission made for the Appellants in their

brief relative to issue No. 1 above is that the Court below ought not to have determined the plea of estoppel per res judicata on a preliminary objection without recourse to trial. It is argued that a party relying on the plea of estoppel per res judicata as a defence must plead same and lead evidence over it at trial to prove his defence of estoppel per res judicata. To this end, reliance was placed on the cases of Ezewani v. Onwordi (1986) 4 NWLR (Pt. 33) 27, 43; Alakija & Ors. v. Abdulai (1998) 6 NWLR (Pt. 552) 1, 15; Amawo & Alaka v. AG, North Central State & Ors (1973) All NLR 598, 604; Awofeso v. Oyenuga (1996) 7 NWLR (Pt. 460) 360; AG, Anambra State v. Eboh (1993) 1 NWLR (Pt. 218) 491, 509. It was submitted that a plea of estoppel cannot be defeated by a Preliminary Objection and without trial. He also cited the decision inExparte Adeshina (1993) 4 NWLR (Pt. 442) 254, 262. We were urged to resolve issue No.1 in favour of the Appellant.

Relative to issue No. 2, that is, whether the subject – matter in suit No. KDH/KAD/617/2014 between Dagazau Carpets Ltd & Ors is the same with the earlier suit No. KDH/KAD/549/1998, between

Bokkir Inter Coy. Ltd vs. Dagazau Carpets Ltd (In Receivership) & Anor; it was argued for the Appellants that the parties in the two cited suits are/were not the same. It is argued that although the 1st Appellant appeared in Suit No. KDH/KAD/549/1998 as Respondent, the 1st Appellant was sued as a Company in receivership, which is no longer the position in the current or present suit i.e suit No. KDH/KAD/617/2014.

It has also been argued that issues in suit No. KDH/KAD/617/2014 and suit No. KDH/KAD/519/1998 are different, given the reliefs sought and the grounds for seeking them. In reference to the ruling of the Court, it was argued that the Court below wrongly concluded that the Appellant’s case was caught by estoppel per res judicata because both cases involve the same parcel of land. That the Court below did not consider that the facts and circumstances in both cases are different, in that, more than one cause of action can arise from the same subject – matter. He argued that the evidence proffered to prove the two suits are different. On the principles to be relied upon to sustain the plea of Estoppel per res judicata, we were referred to

the decisions in Dakolo v. Rewame – Dakolo (2011) 16 NWLR (Pt. 1272) 22154; Dauda v. AG, Lagos State (2011) 13 NWLR (Pt. 1265) 427, 442 – 443.

Under issue No. 3 the question is whether or not the Court below was right when it held that the proper person to initiate the action leading to this appeal, was the Receiver and not the Appellants. Learned counsel speaking on behalf of the appellants, faulted this finding of the Court below arguing that the 1st Appellant is not in receivership, given the facts and evidence before the Court that the tenure of the Receiver had elapsed, hence the 1st Appellant was no longer in receivership. In the circumstance, it is argued, that a Receiver who does not exist cannot initiate action but the appellants themselves as they did when action commenced at the Court below by them. We were urged to re-evaluate the facts and evidence on record to arrive at a just conclusion and resolve Issue No. 3 in favour of the appellants.

I have indicated before that, the 1st & 4th Respondents filed a joint brief of argument and at pages 3-12, of their brief, they addressed all the three(3) issues nominated for

determination of Court. In the same vein, the 2nd respondent has addressed all the three (3) issues in their brief of argument at pages 8-31.

The 1st & 4th respondents in their brief of argument applauded the trial Court when it declined jurisdiction over Suit No. KDH/KAD/617/2014 for being an abuse of Court process. Secondly, it was argued that the new suit in suit No. KDH/KAD/617/2014 raised issues or questions which had been decided against the appellants. Citing the decisions in Okonkwo vs. FRN (2011) 11 NWLR (Pt. 1258); Saraki vs. Kotoye (1992) 9 NWLR (Pt. 264); CBN vs. Ahmed (2001) 11 NWLR (Pt. 724) 369; Dingyadi vs. INEC (2010) 18 NWLR (Pt. 1224) 154; Ogeojeofor vs. Ogoejeofor (No. 2) (2006) 3 NWLR (Pt. 966) 205, it was argued that suit No. KDH/KAD/617/2014 is an abuse of Court process, and a Court under those circumstances has a duty to decline jurisdiction over such matters, in reference to the decision in Barigham vs. PDP (2013) 6 NWLR (Pt. 1349) 108, 135; Shettima & 3 Ors vs. Goni & Ors. (2011) 92, 126 (SC).

Learned respondents’ counsel further alluded to the impropriety in the procedure in bringing the action as it is

like asking the Court below to sit on appeal over and determine what a Court of co-ordinate jurisdiction had decided on the same subject matter, which is now pending on appeal at the Supreme Court. In justifying the attitude of the trial Court declining the jurisdiction over the new case, the learned respondents’ counsel argued that a Court cannot sit on appeal over the decision of another Court of co-ordinate jurisdiction. He argued that since suit No. KDH/KAD/549/1998 had been decided and now pending at the Supreme Court, the appellants cannot turn around to open or institute a fresh case (as in KDH/KAD/617/2014) on the same subject matter. We were further referred to the decision in National Hospital Abuja vs. National Commission for Colleges of Education (2014) 11 NWLR (Pt. 1418) 309, 334 (E-G).

In response to Issue No. 2, learned counsel for the 1st & 4th respondents again applauded the stance of the Court below when it held that the subject matter in Suit No. KDH/KAD/617/2014 is the same with the earlier determined Suit No. KDH/KAD/549/1998, hence the Court below was right to have declined jurisdiction on the principle of estoppel per res

judicata. He relied on The Honda Place Ltd vs. Globe Motors Ltd (2005) 14 NWLR (Pt. 945) 273; Oshodi vs. Eyifunmi (2000) 13 NWLR (Pt. 684) 298 on the requirements for establishing estoppel per res judicata. He further argued and submitted that, it does not matter that a new party was included in the new suit No. KDH/KAD/617/2014 since the issue was on the assets of the appellants sold to the 1st and 4th respondents. In other words, the issue in both cases was on the ownership of the property sold to the 1st and 4th respondents. We were referred to Ojiako vs. Ogueze (1962) 1 SCNR 112; Onisango vs. Akinwumi (1955-56) WRNLR 39. Estoppel res judicata, if successfully established, it is argued, obviate the need to call evidence on the merit in a subsequent suit. He relied on Okposin vs. Assam (2005) 14 NWLR (Pt. 945) 495, Learned counsel for the 1st and 4th respondents urged us to resolve issue No. 2 in their favour.

On the issue of receivership, which is Issue No. 3, learned counsel again applauded the finding made at the Court below to the effect that it is the Receiver and not the appellant that can sue in respect of acts perpetrated during receivership, so

far as the tenure of the Receiver had not been withdrawn or shown to have elapsed. In that case, it was argued that, the 1st appellant was still under receivership. We were urged to so hold and resolve issue No. 3 in favour of the 1st and 4th respondents.

For the 2nd respondent, the submissions made on its behalf over issues 1, 2 and 3 are, to a large extent, the same or similar to those contained in the 1st – 4th respondents’ brief of argument. There is no need to repeat it but I take note of them.

RESOLUTION OF ISSUE NOS. 1, 2 AND 3
I will begin with issue No. 1 and the basic question is whether estoppel per res judicata can be raised by way of Preliminary Objection rather than by pleading where evidence can be led at trial.
It is settled, no doubt, given the long line of decided cases that a party who relies on Estoppel per res-Judicata as a defence must plead facts that constitute that defence even when it is not necessary to plead Estoppel in any particular form. See decisions in: Ezewani v. Onwordi (1986) 4 NWLR (Pt. 33) 27, 43; Alakija & Ors v. Abdulai & Ors (Supra);

Amawo & Alaka v. Attorney General, North Central State & Ors (Supra); Wofesy v. Oyenuga (Supra); Anambra State v. Eboh (Supra).
Given those circumstances, the law requires of the person or party who relied on those facts to lead evidence of trial to establish that defence. See: Ayuya v. Yonrin & Ors (2011) LPELR – 686 (SC); Obumseli v. Uwakwue (2009) 8 NWLR (Pt. 1142) 55.
The case now on appeal, has on the facts, presented a different scenario. Given the printed record before us, it is apparent that the 1st & 4th Respondents did not file any defence to the claim of the Appellants at least, as at the time the Notice of Preliminary Objection was filed by them on 16th September, 2014. This Notice of Objection was in response to the claim of the Appellants. I wish to refer to the record of Appeal at pages 228 – 230.
The Appellants as Plaintiffs had before then taken out a Writ of Summons which they filed along with their Statement of Claim on 18/8/2014. In absence of any defence filed by them, the necessity of having to plead facts as would constitute Estoppel per res Judicata should not arise. Invariably, there should be no obligation on the 1st & 4th Respondents

(as defendants) to lead any such evidence to establish that defence, as it does not also arise.
By the said Notice of Preliminary Objection, the 1st and 4th Respondents are seem to have challenged suit No. KDH/KAD/617/2014, i.e the new suit filed by the Appellants on four (4) grounds, namely:
(a) That the Honourable Court lacks jurisdiction to entertain the suit.
(b) The suit is an abuse of the Court process.
(c) Proper parties are not before the Court.
(d) The service of the Writ on the Respondent out of Jurisdiction of this Honourable Court is defective, the same not being in compliance with Section 97 of the Sherriff and Civil Process Act;
The above stated grounds or complaints no doubt, all revolve around the question of Court’s exercise of jurisdiction in the manner the suit was brought, given the facts contained or deposed to in the affidavit in support of the Preliminary Objection at pages 228 – 232 of the record.
Although, a counter affidavit to the Notice of Preliminary Objection was filed, the trial Court after the review of the case, nonetheless declined jurisdiction in the Ruling delivered by it as at

pages 571 – 578 of the record when it held thus:
“From the processes filed by the Defendants/Objectors, it is clear that this court had earlier adjudicated on a matter in Suit No. KDH/KAD/549/98 – BORKIR INTERNATIONAL COY LTD vs. DAGAZAU CARPETS LTD IN RECEIVERSHIP & OR. The matter went on appeal at the court of Appeal, Kaduna Division and is presently in the Supreme Court in Suit No. SC/325/11 – DAGAZAU CARPETS LTD vs. BORKIR INTERNATIONAL COY LTD & 1 OR.
The law is quite clear on the issue of receivership, and it is clear that the Receiver Manager appointed by the 2nd Defendant is the right person to maintain this action. A receiver is the only party that can sue and be sued in respect of the acts perpetrated during the receivership. See the case of INTERCONTRACTORS (NIG) LTD vs. UTC (1988) 2 NWLR (Pt. 76) 303 and O. B. I Ltd vs. UBN PLC (2009) 3 NWLR (Pt. 1127) 129 @ 157 Paragraphs B.
It is clear that this action relates to an assets of the 1st Plaintiff which continues to be in receivership and concerns the property that was the subject of this suit at the Supreme Court. Since the property which was sold to the

1st Defendant formed part of the Receivership to which receiver was appointed (Mr. Dipo Onifade) he should have been the proper person to sue. This action at best, is an abuse of processes as it is inviting me (this court) to share jurisdiction on a matter which is currently at Supreme Court. I will be the last person to venture into that line of action. For singular fact above, I must give respect to the Apex Court and avoid a situation where I shall be thrown into a situation I never thought of.
In conclusion, and in view of above, I hold that I lack the jurisdiction to entertain this suit and same is accordingly dismissed.”
From this extract of the Ruling of the Court below, it is clear to me that the Court below was constrained to decline jurisdiction mainly on account of the new suit in KDH/KAD/617/2014 being:
(a) An abuse of court’s process
(b) The subject-matter in the suit had been adjudicated upon in the earlier Suit No. KDH/KAD/549/98 between the same parties and for which reason the new suit was caught by the doctrine of Estoppel per res judicata.
Where a party is prevented from bringing an action on account of

Estoppel per res judicata, the Court automatically has no jurisdiction to entertain the suit, once the claim has been ascertained. The jurisdiction of the Court is ousted. See the case of Oluwole vs. Margaret (2012) 12 NWLR (Pt. 1318) 629-631. Ladimeji & Anor. vs. Suara Salami & Ors(1998) 5 NWLR (Pt. 548) 1, 13; Oshodi vs. Eyifunmi (2009) WRN 36 or (2009) 13 NWLR (Pt. 684) 298. Questions relating to the exercise of jurisdiction by the Courts can be taken at any time in the course of proceedings. Since there is no specific format prescribed for raising the issue of jurisdiction, it is absurd to insist that raising such issue (s) has to be in the pleadings only. See: Akegbejo & Ors v. Alega (1998) 1 NWLR (Pt. 534) 459, 468. Once issue of Estoppel per res judicata, is raised (as done in this case on appeal) it has direct relevance to the exercise of Jurisdiction by the Courts in a subsequent claim hence the same can be raised by way of Preliminary Objection, or via a Motion on Notice with a view to terminating the new case at its infancy. Once raised, the Court where the objection is taken is bound to address that objection in lamine and nip the case

in the bud if the circumstances of the case so permit it. See: Ntuk v. NPA (2007) 13 NWLR (Pt. 1651) 392, 413 (SC). The apex Court in Ladimeji & Ors v. Suara Salami(1988) 5 NWLR (Pt. 548) 1, 13 (SC) has held that:
“Res judicata operates not only against the party whom it affects but also against the jurisdiction of the Court itself. The party affected is estopped per res judicatam from bringing a fresh claim before the Court and at the same time the jurisdiction of Court to hear such claims is ousted”.
It is thus a misconception of the law to submit that issue of Estoppel per res judicata cannot be raised and taken in lamine. This is far from the truth, given the authorities on this point and as referred to earlier. This Court in Adeniji v. FUTA (2011) 9 NWLR (Pt. 1570) 208, 223 – 224 (CA) has on this point also held thus:
“It has been held in Elabanjo v. Dawodu (supra) that it is a misconception to hold that objection to jurisdiction should be taken after filing a statement of defence; When the objection can be taken depend entirety on what materials are available before the Court. It could be taken on the basis of

the Statement of claim, evidence received or even by a motion on Notice supported by an affidavit giving the fact upon which whence is placed. In fact, it could be taken even on the face of the Writ of Summons before filing statement of claim”
See further, the decisions in W.A.P.G.M.C v. Okoye (2004) 2 NWLR (Pt. 857) 232, 247 (C.A); Oluwole v. Margaret (2012) 12 NWLR (Pt. 1318) 629, 631, APC v. INEC (2015) 8 NWLR (Pt. 1462) 531; Efet v. INEC (2011) 7 NWLR (Pt. 1247) 423, 444 NJC v. Agumagu (2015) 10 NWLR (Pt. 1467) 367, 402.
It follows therefore that the Court below was right when it entertained respondent’s Preliminary Objection and dismissed suit No. KDH/KAD/617/2014 based on facts analogous, to Estoppel per res judicata and deposed to at paragraph 3 of the supporting affidavit at pages 231-232 of the record of appeal.
Estoppel per res judicata, is an important and fundamental concept of law which postulates that no person or party has the vires to relitigate over a matter or suit which has been decided by a Court of competent jurisdiction in respect of the same subject-matter between the same parties or their privies hence the

jurisdiction of the Court is ousted relative to the new suit before it. This concept is also founded on public policy which demands that there should be an end to litigation as parties are not allowed to reopen matters or questions over which a Court of competent jurisdiction has decided. See: Cole vs. Jibunoh (2016) 4 NWLR (Pt. 1503) 499, 540 (SC). Additionally, the Courts will intervene to scuttle any attempt being made by a party or parties to reopen a matter or re-litigate same, on account of the new suit being an abuse of the Process of Court.

instituting a multiplicity of actions on the same subject-matter against the same opponent. It is also an abuse of Court of process to re-litigate a suit on the same subject-matter over which a Court of competent jurisdiction had made a pronouncement and is pending before an appellate Court. When that occurs, the Courts in exercise of its powers can stop the abuse by declining jurisdiction over that new suit or matter and terminate the suit in Lamine. See: National Hospital, Abuja v. National Commission for Colleges of Education (2014) 11 NWLR (Pt. 1418) 309, 334; Shettima & 3 Ors v. Goni & Ors (2011) (SC) 92, 126. It is for this and other reasons discussed before that issue No. 1 be and same is hereby resolved or favour of the Respondents.

ISSUE NO. 2
Was the case instituted by the Appellant vide suit No. KDH/KAD/617/2014 caught up by the doctrine of Estoppel per res judicata?

The trial Court in the Ruling delivered on the 15th June, 2016 did not mince words when it held stating affirmatively at page 577 of the record that the fact that the subject – matter in suit No. KDH/KAD/617/2014 had been adjudicated upon in a previous suit.

The Court observed thus:
“From the process filed by the Defendants/Objector; it is clear that this Court had earlier adjudicated on a matter on the same subject-matter in suit No. KDH/KAD/549/98–BORKIR INTERNATIONAL COY. LTD. DAGAZAU CARPETS LTD. (IN RECEIVERSHIP) & 1 OR. The matter went on appeal at the Court of Appeal, Kaduna Division and is presently in the Supreme Court in suit No. SC/325/11 – DAGAZAU CARPETS LTD V. BOKKIR INTERNATIONAL COY. LTD &1 OR…”
By those remarks the Court below clearly alluded to the doctrine of Estoppel per res judicata. However, the conditions under which the doctrine will operate or apply are as follows:
(a) The parties in the previous action and the present one must be the same.
(b) The subject-matter of litigation in the previous action must be the same as the one in the present or new action.
(c) The claim in the previous action must be the same as the one in the present action.
(d). The decision in the previous action must be given by a Court of Competent jurisdiction.
(e) The decision given in the previous action must be final or it must have finally deposed

of the rights of the parties.See:Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499 (SC) at page 539. See further the decisions in The Honda Place Ltd v. Globe Motors Ltd (2005) 14 NWLR (Pt. 948) 273; Oshodi v. Eyifunmi (2000) 13, NWLR (Pt. 684) 298; Dakolo v. Rewane – Dakolo (2011) 16 NWLR (Pt. 1272) 22, 54; Dauda v. Attorney General, Lagos State (2011) 13 NWLR (Pt. 1265) 427. The contention of the Appellants in their brief of argument is that, the doctrine of Estoppel per res judicata was applicable to the new case, in that the parties and the reliefs sought in the new case i.e suit No. KDH/KAD/617/2014 are not the same, as in the suit No. KDH/KAD/549/1998. Appellants have further argued that even assuming that the subject – matter is the same in the old and in the new case, the right of the party to maintain another case will not be extinguished on a different cause of action and where the evidence required to prove the case was also different from the evidence in the earlier case. I intend to take a look at those submissions.

In terms of who the parties are in the two (2) cases under reference, it can be noted that the parties in

suit No. KDH/KAD/617/2014 are:
“(1) Dagazau Carpets Ltd
(2) Alhaji Ali Dagazau – Plaintiffs
AND
(1) Bokkir International Company Limited
(2) United Bank for Africa – Defendants
(3) Ministry of Lands, Survey and Country Planning
(4) Dansa Foods Limited”
In the earlier suit that is, suit No. KDH/KAD/549/1998, the parties on record are:
“(1) Bokkir International – Plaintiff
Company Limited.
AND
(1) Dagazau Carpets Limited (In Receivership) – Defendants
(2) Wipo Onifade”
Refer to page 196 of the record of Appeal. There is no doubt that in the latter case i.e suit No. KDH/KAD/617/2014, there is the inclusion of new names i.e the 2nd – 4th Respondents who were not parties to the earlier case in suit No. KDH/KAD/549/1998, but this inclusion notwithstanding, the nature and character of the case remain the same in both cases. In both suits the claims are in respect of the assets, i.e the movable and immovable properties situated on the piece of land along Western Bye-pass in Kaduna South. I refer to the claim in the Originating Summons at pages 196 – 198 of record of

Appeal in suit No. KDH/KAD/459/98 and at pages 12 – 14 of the record of appeal in relation to suit No. KDH/KAD/617/2014. The properties in question originally belonged to the 1st appellant but now sold to the 1st Respondent by reason of the approval of sale given by the Kaduna State Government. So, the inclusion of the 2nd – 4th Respondents as parties to suit No. KDH/KAD/617/2014, does not change the complexion of the suit so far as the 1st Respondent i.e Bokkir International Company Limited was included as a party in the new suit, the plea of Estoppel per res judicata can still be raised and sustained. The apex Court has held in the case of Ikeni v. Efomo (2001) 10 NWLR (Pt. 720) 1, 17 that: “The principle that for a defence of issue estoppel to succeed. There must be identity of parties does not mean that all the parties in the previous suit must be made parties in the latter suit. It is sufficient where there are several parties in the previous suit, that those of the parties who were necessary parties to the issue in the previous suit are the same parties as in the other suit”. (Words Underlined for Emphasis)

It follows therefore that the inclusion of the 2nd – 4th Respondents as parties in the new suit would not prevent the invocation and application of the defence of res judicata. See: Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499 (SC).
In any case, the judgment and order made or given at the trial Court, delivered on the 25th August, 1998 vide suit No. KDH/KAD/547/1998 directing the handover of both movable and immovable properties to the present 1st Respondent being a Judgment in rem, it binds all persons whether party to the previous proceedings or not hence the Appellants cannot be heard to say that parties in the new and the old case are not the same. They are estopped from doing so. See Cole v. Jibunoh (supra); Olaniyan v. Fatori (2003) 13 NWLR (Pt. 837) 273, 287.
It is for this reason that the judgment of the trial Court in suit No. KDH/KAD/549/1998 and as affirmed by this Court vide the decision delivered on 22/2/2011 as at pages 115 – 219 of the record of appeal remain conclusive and binding decision on all parties unless and until the same is set aside by the apex Court. The same Constitutes estoppel per res judicata to suit No. KDH/KAD/617/2011, so far

as the parties the issues and the subject-matter are the same.
Talking about the subject-matter of the claim, in the two cases, the claim relates to the movable properties and the land situate at Western Bye-Pass, Kaduna. The 1st Respondent had acquired title over those properties by virtue of a deed of assignment which the Court below, in its judgment had acknowledged and confirmed same vide suit No. KDH/KAD/549/1998 delivered on the 25th August, 1998. See page 40 of the record of appeal.
Upon the completion of sale transaction, the 1st Respondent sought for and was issued with a new Certificate of Occupancy (C of O) No. KD8059 in the name of the 1st Respondent, i.e Bokkir International Company Limited. See page 32 of the record of appeal. However by their claim vide suit No. KDH/KAD/617/2014, the Appellants herein seek for a declaratory order over the same property or land covered by the certificate of occupancy No. 8059 as per their claim at paragraph 21(1) of their statement of claim at page 12 of the record of appeal. This being the position, the subject-matter in the two cases, I hold, is the same hence the latter case in suit No.

KDH/KAD/617/2014 is/was caught by the doctrine of Estoppel per res judicata and it remains so unless some extenuating circumstances are shown to suggest that the latter case has disclosed good or reasonable cause of action to survive, notwithstanding that the subject-matter in the two cases are the same. The Appellant has not shown any reasonable cause of action by the new suit. The filing of suit No. KDH/KAD/617/2014 is in breach of the principle of estoppel per res judicata. The decision in Okorocha v. PDP (2014) 7 NWLR (Pt.1406) 213, 278 is on point. The apex Court has hold per Ogunbiyi, JSC thus:
“The effect of the ruling by the Court below to re-litigate an existing judgment in rem, is tantamount to a breach of the principle of res judicata which should operate as an Estoppel”
Such action is not competent, same not having been brought by due process of the law. See: Gafar v. Government of Kwara State (2007) LPELR – 8093 (SC); Madukolu & Ors v. Nkemdilim (1962) 2 SCNLR 341. See further, Section 169 of the Evidence Act. Issue No. 2 is thus, resolved in favour of the Respondents and against the Appellants.

Issue No. 3 flow from issue No. 2, so far as it relates to the status and the capacity by which the new suit was maintained or instituted. The position of the Appellants has been that the 1st Defendant in suit No. KDH/KAD/549/1998 was sued. (In Receivership), and for which reason the parties and issues in the old and new cases are not the same given the fact that those circumstances under which the Defendants in suit No. KDH/KAD/549/1998 no longer obtain, in that the 1st Plaintiff in suit No. KDH/KAD/617/2014 did not maintain or institute the suit as a Company In Receivership hence the Court below was wrong when it held that the proper person to initiate the action was the Receiver and not the Appellants. It is argued that the tenure of the Receiver had ceased after its expiration on the 3/6/1999. Reliance was placed on Exhibit ‘C’, a document attached to the 1st & 4th Respondents’ Notice of Preliminary Objection (pages 460 – 463 of record of appeal).

Appellants further relied on Exhibits 2 and 3 annexed to their counter–affidavit to the 1st & 4th Respondents Notice of Preliminary Objection (at pages 552 – 556) of the record

of appeal given the fact that the defunct Liberty Merchant Bank (now UBA, the 2nd Respondent) had direct negotiation with the Appellants after the expiration of the tenure of the Receiver and thereby repurchased their property sold by the Receiver during his tenure as Receiver.

I have considered the submissions made by counsel in this appeal case. By dint of Exhibit C, attached to the 1st & 4th Respondents’ Preliminary Objection, there is no doubt that a Receiver was appointed for the 1st Appellant whose tenure was subsequently extended by a series of addendum to the deed of his appointment.
The Receiver/Manager of the 1st Appellant in the course of his appointment as such Receiver, executed a deed of assignment with the 1st Respondent Company on the 14th July, 1998, and same registered with the Kaduna State Lands Registry as No. KDR 127 at Page 127, Vol. 101, a fact which indicate clearly that the property which hitherto belonged to the 1st appellant was sold by the Receiver Manager when he was on seat to the 1st Respondent. It follows therefore, that if issues relating to the mandate of the Receiver are to be litigated in the new suit

KDH/KAD/617/2014, it is the Receiver, in this case, Mr. Onifade, that can institute that action, so far as the action relates to the mandate of his office and not the appellants. The appellants cannot initiate action over the subject-matter which is the mandate of the Receiver. The only person who can institute or defend an action against the company (1st appellant) is the Receiver/Manager, not the appellants.
This Court has held, Per Sankey, JCA in O.B.I Ltd vs. UBN (2009) 3 NWLR (Pt. 1127) 129, 159 thus:
“The law is that once an existing registered company is in receivership and a receiver or manager is appointed, the former ceases to have any right to deal with its assets. The receiver/manager is thereafter regarded as the agent of the company for the purpose of sealing with the assets in receivership… it is true however that, although the receiver has no title to the assets in receivership, (which still vests in the company), he is the only one who can sue or be sued in respect of the assets while the receivership lasts.”
The provisions of the Companies and Allied Matters Act has made it clear under Section 393(3) that it

is the Receiver that has the vires to bring action on behalf of the Company under Receivership. The Section provides thus:
“Without prejudice to Subsection (1) or (2) of this Section, where a Receiver or Manager is appointed for the whole or substantially the whole of a company’s property, the powers conferred on him by the debentures by virtue of which he was appointed shall be deemed to include (except in so far as they are inconsistent with any of the provisions of those debentures) the powers specified in Schedule 11 of this Act.”
By Paragraph 5 of the 11th Schedule to the Companies and Allied Matters Act, the Receiver/Manager has the power to bring or defend any action or any legal proceedings in the name and on behalf of the Company. Issue No. 3 accordingly, is similarly resolved against the appellants and in favour of the Respondents.

All the three (3) Issues having thus been resolved in favour of the Respondents, the appeal necessarily fails and same is dismissed. The decision (Ruling) of the High Court of Kaduna State, stands on a very strong wicket and the same is affirmed with cost assessed in the sum of

N100,000.00 against the appellants.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother Saidu Tanko Hussaini, JCA and I agree that the appeal has no merit. I too dismiss it and affirm the Ruling of the lower Court. I abide by my lord’s order as to costs.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother SAIDU TANKO HUSSAINI JCA, where the facts and issue in contention have been set out and distinctly determined. I agree with my learned brother that this appeal lacks merit. I also dismiss it with the costs as ordered.

Appearances:

O. ISIRAMEN, ESQ., with him, IFEANYI CHUKWURAH, ESQ and B. Y. DANGANA For Appellant(s)

O. AHOHAI, ESQ., – for the 2ND RESPONDENT.
MOHAMMED MONGUNO, ESQ., – for the 1ST and 4TH RESPONDENTS. For Respondent(s)