FCMB v. J. A. ODUTOLA PROPERTY & INVESTMENT LTD (2021)

FCMB v. J. A. ODUTOLA PROPERTY & INVESTMENT LTD

(2021)LCN/15020(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, February 19, 2021

CA/L/1147/2015

RATIO

ESTOPPEL: DOCTRINE OF RES JUDICATA

Res judicata is a legal doctrine meant to bar or preclude re-litigation of a claim between the same parties in a case where there has been a final judgment. In Ranking Udo & Ors v. Mbiam Obot & Ors (supra), also reported in (1989) LPELR-3297(SC), the Supreme Court, per Oputa, JSC explained, page 15 of the E-Report:
“A plea of res judicata can be maintained only when the same question as has been judicially decided was again raised between the parties. If therefore an action is brought, and the case is discussed on its merits and a filial judgment is obtained by either party then the parties are concluded and they cannot canvass the same question again in another action inter parties.”

In Makun v Federal University of Technology, Minna (supra) also reported in (2011) LPELR-15514(SC) the Supreme Court, per Adekeye, JSC restated the doctrine of res judicata in the following manner, pages 24 – 29 of the E-Report:
“Estoppel per rem judicatam or estopel of record arises where an issue of fact has been judicially determined in a final manner between the parties or their privies by a Court or Tribunal having jurisdiction in the matter and the same issue comes directly in question in subsequent proceedings between the parties or their privies. It effectively precludes a party to an action, his agents and privies from disputing as against the other party in any subsequent suit, matters which had been adjudicated upon previously by a Court of competent jurisdiction between him and his adversary involving the same issues.
Adone v. Ikebudu (2001) 14 NWLR Pt.733 Pg.385.
Ukaegbu v. Ugoji (1991) 6 NWLR Pt.196 Pg.127,
Ezeudu v. Obiagwu (1986) 2 NWLR Pt.21 Pg.208.
Osunrinde v. Ajamogun – (1992) 6 NWLR Pt.246 Pg.156.
Iga v. Amakiri (1976) 11 SC 1,

Udeze v. Chidebe (1990) 1 NWLR 3 (Pt.125) 141,
Lawal v. Dawodu (1972) 1 All NLR Pt.2 Pg.270.
Ezewani v. Onwordi (1986) 4 NWLR Pt.33 Pg.27,
Fadiora v. Gbadebo (1978) 3 SC 219. PER ONYEKACHI AJA OTISI, J.C.A.

ESTOPPEL: CATEGORIES OF ESTOPPEL PER REM JUDICATAM

There are two categories of estoppel per rem judicatam. They are –

(1) Cause of Action Estoppel -This precludes a party to an action from asserting or denying as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a Court of competent jurisdiction in a previous litigation between the same parties. This is because it is against the rule of public policy for anyone to be vexed twice on the same ground and for one and the same cause of action and the same issues. It is also an application of the rule of public policy that there should be an end to litigation. In appropriate case, the parties affected are estopped from bringing a fresh action before any Court on the same cause and on the same issues already decided or pronounced upon by a Court of competent jurisdiction in a previous action.

(2) Issue Estoppel – The rule being that once one or more issues have been raised in a cause of action and distinctly determined or resolved between the same parties in a Court of competent jurisdiction, then as a general rule, neither party nor his agent or privy is allowed to relitigate that or those decided issues all over again in another action between the same parties or their privies on the same issues.
Adomba v. Odiese (1990) 1 NWLR Pt.125 Pg.165
Omokhafe v. Esekhomo (1993) 8 NWLR Pt. 309 Pg.58,
Balogun v. Adejobi (1995) 2 NWLR Pt.375 Pg.131,
Lawal v. Dawodu (1972) 1 ALL NLR Pt.2 Pg.270,
Ezewani V. Onwordi (1986) 4 NWLR Pt.33 Pg.27,
Adone v. Ikebudu (2001) 14 NWLR Pt.733 Pg.385 For a plea of estoppel per rem judicatam to succeed, the party relying on it must establish the following requirements or pre- conditions namely –

(a) That the parties or their privies are the same in both the previous and the present proceedings
(b) That the claim or issues in dispute in both actions are the same.
(c) That the res or the subject matter of the litigation in the two cases is the same.
(d) That the decision relied upon to support the plea of estoppel per rem judicatam is valid, subsisting and final.
(e) That the Court that gave the previous decision relied upon to sustain the plea is a Court of competent jurisdiction.
Unless all the above constituent elements or requirements of the doctrine are fully established, the plea of estoppel per rem judicatam cannot be sustained.
Adigun v. Governor of Osun State (1995) 30 NWLR pt. 385 Pg. 513, Oke v. Atoloye (1985) ALL NLR (pt.9) pg.578,
Yoye v. Olubode (1974) ALL NLR (pt.2) pg.118,
Alashe v. Olori-ilu (1965) NMLR Pg.66,
Fadiora v. Gbadebo (1978) 3 SC 219,
Odjevwedje v. Echanokpe(1987) 1 NWLR Pt.52 Pg. 633.
Nwaneri v. Oruiwa (1959) SC NLR Pg.316,
Dokubo v. Omoni (1999) 8 NWLR Pt. 616 Pg.647,
Nkanu v. Onun (1977)5 SC 1.
Udo v. Obot (1989) 2 NWLR Pt. 95 Pg.59 PER ONYEKACHI AJA OTISI, J.C.A.
ESTOPPEL: DUTY OF THE COURT IN DETERMINING WHETHER THE ISSUES, THE SUBJECT MATTER OF THE TWO ACTIONS AND THE PARTIES ARE THE SAME

In determining whether the issues, the subject matter of the two actions and the parties are the same, the Court is permitted to study the pleadings, the proceedings and the judgment in the previous action. The Court may also examine other relevant facts to discover what was in issue in the previous case. It is entirely a question of fact whether the parties and their privies, the facts in the issue and the subject matter of the claim are the same in both the previous and the present suits. The plea of res judicata applies except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment but to every point which properly belonged to the subject-matter of litigation and which the parties exercising reasonable diligence might have brought forward. Standard Bank of Nigeria Ltd v. Ikomi(1972) 1 SC Pg. 164. Ijale v. A. G. Leventis & Co. Ltd (1965) 2 SCNLR Pg. 386. The plea of res judicata operates not only against the parties but also against the jurisdiction of the Court itself and robs the Court of its jurisdiction to entertain the same cause of action on the same issues previously determined by a Court of competent jurisdiction between the same parties.” See also: Fadiora & Anor v. Gbadebo & Anor (1978) 3 SC 219, (1978) LPELR-1224(SC); Ogbolosingha & Anor v. Bayelsa State Independent Electoral Commission & Ors (2015) LPELR-24353(SC); Cole v. Jibunoh & Ors (2016) LPELR-40662(SC). PER ONYEKACHI AJA OTISI, J.C.A.

ESTOPPEL: PURPOSE OF THE DOCTRINE OF RES JUDICATA

As explained by the above judicial pronouncements, the purpose for the doctrine is two pronged:
(i) Interest reipublicae ut sit finis litium – It is form the common good that there should be an end to litigation.
(ii) Nemo debet bis vexari pro una et eadem causa – No one should be sued twice on the same ground. No one shall be twice vexed for one and the same cause. PER ONYEKACHI AJA OTISI, J.C.A.

ACTION: WHAT IS AN ISSUE IN DISPUTE

An issue in dispute is the subject of litigation. It is a matter for which the suit is brought and parties join issues for the determination of the dispute; Trade Bank Plc v. Benilux (Nig.) Ltd (2003) LPELR-3262(SC) 6. An issue arises in a suit where a fact is alleged by one party and denied or admitted in part, either expressly or by necessary implication, by the other party. Issues emerge in a civil suit where the plaintiff asserts a fact and the defendant denies, traverses or refuses to admit the fact; Okonkwo v Kpajie (1992) LPELR-2483(SC).
Now, in every litigation a number of issues of fact may arise but unless they have a bearing on the principal question for determination, they do not by themselves or together form “an issue”. On the meaning of the word issue in this regard, the Supreme Court in Messrs Lewis and Peat (N.R.I) Ltd v. Akhimien (1976) LPELR-1864(SC), per Idigbe, JSC, cited with approval the decisions in Fidelitas Shipping Co. Ltd v. V/C Exportchleb (1965) 2 A.E.R 4, and Howell v Dering (1915) 1.K.B. 54 at 62 as follows:
“As was stated in a case in which it was necessary to consider the true meaning of the expression “issue”.
“… Litigation is concerned only with legal rights and duties of the parties thereto. It is concerned with facts only in so far as they give rise to legal consequences. The final resolution of a dispute between the parties as to their respective legal rights or duties may involve the determination of a number of different “issues” that is to say, a number of decisions as to the legal consequences of particular facts, each of which decisions constitutes a necessary step in determining what are the legal rights and duties of the parties resulting from the totality of the fact. To determine an ‘issue’ in this sense, which is that in which I shall use the word ‘issue’ throughout this judgment, it is necessary for the person adjudicating on the issue first to find out what are the facts, and there may be a dispute between the parties as to this. But while an issue may thus involve a dispute about facts, a mere dispute about facts divorced from their legal consequences is not an ‘issue’.”
See Fidelitas Shipping Co. Ltd Vs. V/C Exportchleb (1965)2 A.E.R4 per Diplock L.R. at Pp. 9 & 10. Although, the case of Howell v Dering deals with the expression ‘issue’ as used in the Rules of the Supreme Court (England) 1883, Order LXV Rule 1 (now revoked) it is useful to note the observations of Buckley L.J. According to him.
”It is impossible to say that every question of fact which is in dispute between a Plaintiff and a Defendant is ‘an issue’. The word can be used in more than one sense. It may be said that every dispute, question of fact is an issue. It is in a sense, that is to say, it is in dispute. But every question of fact which is ‘in issue’ and which a jury has to determine is not necessarily an issue within the meaning of the rule. I shall define ‘issue’ for the purposes of this rule in some such words as these: An issue is that which, if decided in favour of the Plaintiff, will in itself give a right to relief, or would, but for some other consideration, in itself give a right to relief: and if decided in favour of the Defendant will in itself be a defence.” (underlining supplied) – See Howell v Dering (1915) 1.K.B. 54 at 62.” (Emphasis mine).

The res is an object, a subject matter, or a status against which legal proceedings have been instituted; Ogbogu v Ndiribe (1992) LPELR-2283(SC). Although, several issues can arise over the same res, to constitute estoppel, the issues distinctly decided in earlier litigation and canvassed in the subsequent litigation must be identical, not merely similar; Udoh v Obot (supra); Fadiora & Anor v. Gbadebo & Anor (supra). PER ONYEKACHI AJA OTISI, J.C.A.

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Tani Yusuf Hassan Justice of the Court of Appeal

Between

FIRST CITY MONUMENT BANK LIMITED APPELANT(S)

And

A. ODUTOLA PROPERTY & INVESTMENT LIMITED RESPONDENT(S)

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This appeal was lodged against the Ruling of the High Court of Lagos State Coram: F. Bankole-Oki, J. delivered on October 27, 2015.

The facts leading to this appeal can be summarized in this manner: The Respondent, as claimant before the lower Court, by an Amended Writ of Summons and Amended Statement of Claim filed on 26/3/2015, pages 344 – 364 of the Record of Appeal, sought these Orders:
i. An order directing the Defendant to comply with the Claimant’s instruction contained in the Claimant’s letter dated 22nd July, 2013 to the Defendant that the Defendant transfer the sum of N522,807,000.00 (Five Hundred and Twenty-two Million, Eight Hundred and Seven Thousand Naira only) being the sum standing to the credit of the Claimant’s Accounts No: 0129425044 and 0129425037 with the Defendant’s branch at 44, Marina, Lagos to Zenith Bank Plc., Redemption Camp Mowe, Ogun State which instructions the Defendant has up till date failed, refused or neglected to obey.
ii. An Order directing the defendant to pay to the claimant the percentage of the sum of

N522,807,000.00 (Five Hundred and Twenty-two Million, Eight Hundred and Seven Thousand Naira only) withheld by the defendant without the consent and against the instructions of the Claimant representing the rate of devaluation of the Claimant’s money with the Defendant which percentage is calculated in the following manner:
Official rate of N to $ at the time of close of evidence minus official rate of N to $ as at 22nd July, 2013 divided by official rate of N to $ as at 22nd July, 2013 multiplied by 100.
iii. The sum of N1,000,000,000 (One Billion Naira) being general damages payable to the Claimant by the Defendant for the Defendant’s failure or refusal to comply with the Claimant’s instruction contained in the Claimant’s letter dated 22nd July, 2013 aforesaid.
iv. Interest at the rate of 12% per annum from 22nd July, 2013, until Judgment is delivered which rate of interest was due and payable by agreement of the Claimant and Defendant for keeping the Claimant’s money with the Defendant in an interest yielding account.
v. Interest on the total sum awarded by this Honourable Court at the rate of 10% per annum from the date Judgment is delivered until final payment by the Defendant.

In its pleadings and evidence, the Respondent admitted the existence and content of a previous judgment, delivered by O. A. Taiwo, J., on 12/7/2013 in Suit No ID/ADR/92/13, between the same parties as the present suit and concerning the same subject matter as the present suit, in which the Respondent was also the claimant while the Appellant was the defendant. Both suits also concerned the same two bank accounts. In Suit No ID/ADR/92/2013, the trial Court gave judgment in favour of the Respondent and made the specific orders. The Appellant, being of the view that the orders in Suit No ID/ADR/92/13 were the same as or of similar effect to the main relief claimed by the Respondent in the present suit, filed a Motion on Notice on 12/5/2015, seeking the striking out of the action on grounds that the lower Court lacked jurisdiction to entertain the suit by reason of res judicata. The lower Court heard arguments on the said Motion and dismissed it. Dissatisfied with the decision of the lower Court, the Appellant lodged this appeal by Notice of Appeal on 9/11/2015. An Amended Notice of Appeal was filed on 31/10/2017 but deemed properly filed and served on 19/9/2018 on three grounds of appeal.

The parties filed Briefs of Argument, pursuant to the Rules of this Court. The Appellant’s Amended Brief was filed on 31/10/2017. The Respondent’s Brief was filed on 18/10/2017. The Appellant’s Reply Brief was filed on 6/3/2018. All these Briefs were deemed properly filed and served on 19/9/2018. At the hearing of the appeal on 9/12/2020, the Briefs were respectively adopted by Oladapo Ademola, Esq., with Yetunde Awhanbe, Esq., for the Appellant, and by S.G. Adeotan, Esq., for the Respondent.
Counsel for the Appellant distilled a sole issue for determination from the three grounds of appeal:
Whether the plea of res judicata was made out in the present case.
The Respondent adopted this issue, which I shall also adopt for the determination of this appeal.

Arguments
The lower Court found that the plea of res judicata was not made out because the cause of action and the subject-matter in the two cases were different. The elements of res judicata which were set out in the case of Makun v Federal University of Technology, Minna (2011) 18 NWLR (PT 1278) 190 at 221 -222 were cited and relied on.

It was not in dispute that the parties were the same in both the previous and the present proceedings. It was also not in dispute that the Court that gave the previous decision relied upon to sustain the plea was a Court of competent jurisdiction. The Appellant accepted that the earlier judgment was valid, subsisting and final. The contention herein was whether the claim or issues in dispute in both actions were the same; and, whether the res or the subject matter of the litigation in the two cases was the same. It was submitted that once it is shown that either that the claim in both cases was the same or that the issues in dispute in the two cases were the same, a plea of res judicata could be made out. The cause of action was not a relevant consideration, relying on Makun v Federal University of Technology, Minna (supra).

The Appellant’s case was that the issues in dispute and the subject matter were the same in both cases. The key issue in dispute in both cases was whether the Appellant ought to allow the Respondent, acting through its directors, to

withdraw any or all of the funds in the two bank accounts. In both cases the Appellant had declined to honour instructions from the Respondent, signed by its directors, to withdraw funds from the Respondent’s accounts with the Appellant. By the ruling of the lower Court, there was some fundamental difference in the issues in both suits based on the instrument that the Respondent chose. While conceding that in the previous judgment it was two cheques that were not honoured, whereas in the lower Court it was an instruction in letter form that was declined, it was submitted that this was a distinction without a difference. The orders made in the previous judgment referred to the Respondent’s accounts generally and to all instruments drawn or instructions given on those accounts, and not specifically to any particular cheques or any particular instruments of withdrawal. Counsel argued that the main relief in the present suit read like an attempt to enforce the previous judgment. He queried: if the previous judgment had already ordered the Appellant to honour all instructions drawn on the Respondent’s accounts, how could a further order in the

terms claimed by the Respondent raise a different issue? The previous judgment ordered the Appellant to allow withdrawals and honour instructions, while the main claim in the present suit seeks an order directing the Appellant to honour an instruction about a withdrawal. It was submitted that the wording of the previous judgment would cover the instruction relied on by the Respondent in this Appeal. Most pertinent was that in both cases the Appellant declined to honour an instruction from the Respondent to withdraw from its account with the Appellant, and that the correctness or otherwise of this was the issue in dispute between the parties in both cases.

In the Ruling on appeal, the Lower Court found that the subject-matter was different in the two cases in that the main grouse of the Respondent as claimant in the previous suit was the freezing of its two accounts with the Appellant as defendant, which resulted in two cheques being dishonoured by the Appellant, while the claim in the instant case was predicated solely on an instruction to transfer an amount to another account of the Respondent. Counsel relied on the case of

National Insurance Commission v. First Continental Insurance Company Limited [2007] Pt. 1019 610 (incomplete citation) to submit that the res or subject-matter of a case is the legal right or bundle of legal rights that the case seeks to enforce as opposed to the means by which such rights may be exercised. Applied to the present Appeal, it was reasoned that the res in both cases was the funds the Respondent’s Bank Accounts and the right of the Respondent to access those funds acting through its directors as opposed to any instruments, whether cheques or letters, by which the Respondent may have attempted to exercise those rights. The Court was urged to hold that the subject-matter or res in the two suits under consideration was the same.

It was posited that the case of Udo v. Obot (supra) relied on by the trial Court, supported the arguments for the Appellant in this case where the claims did not raise different issues, rather both claims seek to enforce the same right to make withdrawals from the same bank accounts. The purpose of the res judicata doctrine is to create an end to litigation and to prevent Courts of co-ordinate jurisdiction from reaching contradictory

conclusions in the same case, citing Abubakar v. Bebeji Oil & Allied Products Ltd. [2007] 18 NWLR (Pt. 1066) 319 at 373; Dakolo v. Rewane-Dakolo [2011] 16 NWLR (Pt. 1272) 22 at 44. Counsel posited that if the lower Court had found in favour of the Appellant in the present suit, it would have directly contradicted the previous judgment. It was posited further that the present case was an attempt by the Respondents to circumvent the Appellant’s appeal against the previous judgment which was still pending before this Court. On the premise that the issues before the lower Court in the present case had already been decided by the previous judgment, the Court was urged to resolve this sole issue in favour of the Appellant. In conclusion, the Court was urged to allow the appeal with costs to the Appellant, set aside the ruling and orders of the lower Court, and to strike out the suit.

In response, the Respondent’s Counsel urged the Court to discountenance the arguments of Appellant. The only complaint of the Appellant was the holding that the issues in dispute in Suit No ID/ADR/92/2013 were different from the issues in dispute in the instant

case; and that the res or subject matter in both suits are different. The other holdings of the lower Court were conceded by the Appellant and were binding on the parties; relying on Oleksandr v Lone Star Drilling Co. Ltd (2015) 9 NWLR (PT 1464) 337; CGG (Nig) Ltd v Aminu (2015) 7 NWLR (PT 1459) 577. Relying on the meaning of issue as defined in Ehimare v Emhonyon (1985) 1 NWLR (PT 1) 177, it was submitted that the issues in dispute in Suit No ID/ADR/92/2013 and the present suit were those matters, whether of fact or law, occurring in the pleadings of these suits which are affirmed on one side but denied on the other side. It was submitted that the Appellant had failed to establish that the issues in dispute in both suits were the same. To succeed in its application, the burden to prove all the ingredients of res judicata was on the Appellant, citing Ibero v Ume-Ohana (1993) 2 NWLR (PT 277) 510; Adomba v Odiese (1990) 1 NWLR (PT 125) 165. The Appellant that alleged that the issues in Suit No ID/ADR/92/2013 and the present suit were the same, did not place sufficient material before the lower Court. The pleadings in Suit No ID/ADR/92/2013 were not brought

before the lower Court. It was argued that, having failed to bring pleadings in the previous suit before the lower Court, the Appellant must be bound by the facts summarized by the lower Court, as contained in the judgment in Suit No ID/ADR/92/2013. Further reliance was placed on Fidelitas Shipping v V/O Exportchleb (1965) ALL ER 4 at 10; Fadiora v Gbadebo (1978) NSCC 121; AIB Ltd v Purification Tech. Ltd (2000) 10 NWLR (PT 676) 552. Counsel for the Respondent listed difference in both suits in urging the Court to hold that the issues in both suits were not the same.

Counsel for the Respondent further contended that the argument that the key focus of res judicata is either the claim or the issues in dispute and not the cause of action is contrary to settled principles of law. There are two types of estoppel: res judicata, also known as cause of action estoppel and issue estoppel. The Appellant had relied on res judicata. Reliance was placed on the decisions in Ogbogu v Ndiribe (1992) 6 NWLR (PT 245) 40 in which the case of Fadiora v Gbadebbo (1978) 3 SC 219 was relied on; Okugo v Nwokedi (1997) 8 NWLR (PT 517) 467; Agbogu v Agbogu (1995) 1 NWLR (PT 372) 411.

The Appellant did not challenge the holding of the lower Court that the cause of action in Suit No ID/ADR/92/2013 and the present suit were not the same. The Court, for this reason, was urged to hold that in order for the plea of res judicata to be sustained, the cause of action in both suits must be the same. The decisions in Osunrinde v Ajamogun (1992) 6 NWLR (PT 246) 156; NIDB v Limani (Nig) Ent Ltd (1998) 10 NWLR (PT 568) 97 were also cited and relied on.

It was further submitted that the fact that the lower Court used the words subject matter and cause of action interchangeably was not of consequence. On the meaning of the word res, reliance was placed on Buhari v Obasanjo (2003) 17 NWLR (PT 850) 587; Oyefeso v Omogbehin (1991) 4 NWLR (PT 187) 596 at 612. Counsel posited that the lower Court rightly identified the res in both suits as the bank accounts of the Respondent. The Court was urged to uphold the finding that while the res in the previous judgment and in the instant case were the same, the cause of action was not the same in both suits. It was submitted that the lower Court rightly relied on Udo v Obot (supra). Different causes of action can arise from the same res.

In the Reply Brief, Counsel for the Appellant issue estoppel is a specie of res judicata and that the term res judicata can also refer to issue estoppel, citing Ogbobu v Ndiribe (supra); Dakolo & Ors v Rewane-Dakolo & Ors (2011) 16 NWLR (PT 1272) 54; and that the Appellant had relied on issue estoppel by arguing that both cases are the same.

Resolution
The main issue in this appeal is whether the doctrine of res judicata is applicable to the facts of this case. Res judicata is a legal doctrine meant to bar or preclude re-litigation of a claim between the same parties in a case where there has been a final judgment. In Ranking Udo & Ors v. Mbiam Obot & Ors (supra), also reported in (1989) LPELR-3297(SC), the Supreme Court, per Oputa, JSC explained, page 15 of the E-Report:
“A plea of res judicata can be maintained only when the same question as has been judicially decided was again raised between the parties. If therefore an action is brought, and the case is discussed on its merits and a filial judgment is obtained by either party then the parties are concluded and they cannot canvass the same question again in another action inter parties.”

Udeze v. Chidebe (1990) 1 NWLR 3 (Pt.125) 141,
Lawal v. Dawodu (1972) 1 All NLR Pt.2 Pg.270.
Ezewani v. Onwordi (1986) 4 NWLR Pt.33 Pg.27,
Fadiora v. Gbadebo (1978) 3 SC 219. There are two categories of estoppel per rem judicatam. They are –

(2) Issue Estoppel – The rule being that once one or more issues have

been raised in a cause of action and distinctly determined or resolved between the same parties in a Court of competent jurisdiction, then as a general rule, neither party nor his agent or privy is allowed to relitigate that or those decided issues all over again in another action between the same parties or their privies on the same issues.
Adomba v. Odiese (1990) 1 NWLR Pt.125 Pg.165
Omokhafe v. Esekhomo (1993) 8 NWLR Pt. 309 Pg.58,
Balogun v. Adejobi (1995) 2 NWLR Pt.375 Pg.131,
Lawal v. Dawodu (1972) 1 ALL NLR Pt.2 Pg.270,
Ezewani V. Onwordi (1986) 4 NWLR Pt.33 Pg.27,
Adone v. Ikebudu (2001) 14 NWLR Pt.733 Pg.385 For a plea of estoppel per rem judicatam to succeed, the party relying on it must establish the following requirements or pre- conditions namely –

estoppel per rem judicatam is valid, subsisting and final.
(e) That the Court that gave the previous decision relied upon to sustain the plea is a Court of competent jurisdiction.
Unless all the above constituent elements or requirements of the doctrine are fully established, the plea of estoppel per rem judicatam cannot be sustained.
Adigun v. Governor of Osun State (1995) 30 NWLR pt. 385 Pg. 513, Oke v. Atoloye (1985) ALL NLR (pt.9) pg.578,
Yoye v. Olubode (1974) ALL NLR (pt.2) pg.118,
Alashe v. Olori-ilu (1965) NMLR Pg.66,
Fadiora v. Gbadebo (1978) 3 SC 219,
Odjevwedje v. Echanokpe(1987) 1 NWLR Pt.52 Pg. 633.
Nwaneri v. Oruiwa (1959) SC NLR Pg.316,
Dokubo v. Omoni (1999) 8 NWLR Pt. 616 Pg.647,
Nkanu v. Onun (1977)5 SC 1.
Udo v. Obot (1989) 2 NWLR Pt. 95 Pg.59
In determining whether the issues, the subject matter of the two actions and the parties are the same, the Court is permitted to study the pleadings, the proceedings and the judgment in the previous action. The Court may also examine other relevant facts to discover what was in issue in the previous case. It is entirely a question

of fact whether the parties and their privies, the facts in the issue and the subject matter of the claim are the same in both the previous and the present suits. The plea of res judicata applies except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment but to every point which properly belonged to the subject-matter of litigation and which the parties exercising reasonable diligence might have brought forward. Standard Bank of Nigeria Ltd v. Ikomi(1972) 1 SC Pg. 164. Ijale v. A. G. Leventis & Co. Ltd (1965) 2 SCNLR Pg. 386. The plea of res judicata operates not only against the parties but also against the jurisdiction of the Court itself and robs the Court of its jurisdiction to entertain the same cause of action on the same issues previously determined by a Court of competent jurisdiction between the same parties.” See also: Fadiora & Anor v. Gbadebo & Anor (1978) 3 SC 219, (1978) LPELR-1224(SC); Ogbolosingha & Anor v. Bayelsa State Independent Electoral Commission & Ors (2015) LPELR-24353(SC); Cole v. Jibunoh & Ors (2016) LPELR-40662(SC).

In the instant appeal, it is not disputed that the parties are the same in both the previous proceedings, Suit No ID/ADR/92/2013 and the present proceedings. It is also not in dispute that the decision relied upon is valid, subsisting and final; and that the Court that gave the previous was a Court of competent jurisdiction. In contention is whether the claims or issues in dispute in both actions are the same; and whether the res or the subject matter of the litigation in the two cases is the same.

alleged by one party and denied or admitted in part, either expressly or by necessary implication, by the other party. Issues emerge in a civil suit where the plaintiff asserts a fact and the defendant denies, traverses or refuses to admit the fact; Okonkwo v Kpajie (1992) LPELR-2483(SC).
Now, in every litigation a number of issues of fact may arise but unless they have a bearing on the principal question for determination, they do not by themselves or together form “an issue”. On the meaning of the word issue in this regard, the Supreme Court in Messrs Lewis and Peat (N.R.I) Ltd v. Akhimien (1976) LPELR-1864(SC), per Idigbe, JSC, cited with approval the decisions in Fidelitas Shipping Co. Ltd v. V/C Exportchleb (1965) 2 A.E.R 4, and Howell v Dering (1915) 1.K.B. 54 at 62 as follows:
“As was stated in a case in which it was necessary to consider the true meaning of the expression “issue”.
“… Litigation is concerned only with legal rights and duties of the parties thereto. It is concerned with facts only in so far as they give rise to legal consequences. The final resolution of a dispute between the parties as to their respective

legal rights or duties may involve the determination of a number of different “issues” that is to say, a number of decisions as to the legal consequences of particular facts, each of which decisions constitutes a necessary step in determining what are the legal rights and duties of the parties resulting from the totality of the fact. To determine an ‘issue’ in this sense, which is that in which I shall use the word ‘issue’ throughout this judgment, it is necessary for the person adjudicating on the issue first to find out what are the facts, and there may be a dispute between the parties as to this. But while an issue may thus involve a dispute about facts, a mere dispute about facts divorced from their legal consequences is not an ‘issue’.”
See Fidelitas Shipping Co. Ltd Vs. V/C Exportchleb (1965)2 A.E.R4 per Diplock L.R. at Pp. 9 & 10. Although, the case of Howell v Dering deals with the expression ‘issue’ as used in the Rules of the Supreme Court (England) 1883, Order LXV Rule 1 (now revoked) it is useful to note the observations of Buckley L.J. According to him.
”It is impossible to say that every question of fact which is in dispute between a

Plaintiff and a Defendant is ‘an issue’. The word can be used in more than one sense. It may be said that every dispute, question of fact is an issue. It is in a sense, that is to say, it is in dispute. But every question of fact which is ‘in issue’ and which a jury has to determine is not necessarily an issue within the meaning of the rule. I shall define ‘issue’ for the purposes of this rule in some such words as these: An issue is that which, if decided in favour of the Plaintiff, will in itself give a right to relief, or would, but for some other consideration, in itself give a right to relief: and if decided in favour of the Defendant will in itself be a defence.” (underlining supplied) – See Howell v Dering (1915) 1.K.B. 54 at 62.” (Emphasis mine).

In Suit No ID/ADR/92/2013, the following orders were made:
1) An order directing the Defendants forthwith unfreeze the Claimant’s Account No. 0129425037 and Deposit Account No. 001212012925001 operated in the Defendant Bank and allow normal operation to resume on both accounts (without prejudice to the generality of the foregoing) is hereby granted.
2) An order directing the Defendants, its servants/agents and/or privies to allow withdrawals from, transfers-in and out-lodgments into the Accounts is hereby granted.
3) The Defendant is ordered to honour all instruments drawn/instructions given on the Accounts by the Claimant.

Although, the pleadings in Suit No ID/ADR/92/2013 were not placed before the lower Court, the res or subject matter therein was two of the Respondent’s Accounts: No. 0129425037 and Deposit Account No. 001212012925001, which were domiciled with the Appellant Bank. The issue therein was the refusal of the Appellant to allow normal operations of both accounts by the Respondent by honouring the instructions of the Respondent given on both accounts. It must be understood that the

instruments employed to operate the said accounts was not the issue, and, indeed, was not important. The Appellant was ordered to honour all instruments drawn and or instructions given on the said accounts by the Respondent. The Appellant was directed to allow withdrawals from, transfers-in and out-lodgements into the said accounts.

In the Amended Writ of Summons and Amended Statement of Claim filed on 26/3/2015, pages 344 – 364 of the Record of Appeal, the Respondent sought these Orders:
i. An order directing the Defendant to comply with the Claimant’s instruction contained in the Claimant’s letter dated 22nd July, 2013 to the Defendant that the Defendant transfer the sum of N522,807,000.00 (Five Hundred and Twenty-two Million, Eight Hundred and Seven Thousand Naira only) being the sum standing to the credit of the Claimant’s Accounts No: 0129425044 and 0129425037 with the Defendant’s branch at 44, Marina, Lagos to Zenith Bank Plc., Redemption Camp Mowe, Ogun State which instructions the Defendant has up till date failed, refused or neglected to obey.
ii. An Order directing the defendant to pay to the claimant the

percentage of the sum of N522,807,000.00 (Five Hundred and Twenty-two Million, Eight Hundred and Seven Thousand Naira only) withheld by the defendant without the consent and against the instructions of the Claimant representing the rate of devaluation of the Claimant’s money with the Defendant which percentage is calculated in the following manner:
Official rate of N to $ at the time of close of evidence minus official rate of N to $ as at 22nd July, 2013 divided by official rate of N to $ as at 22nd July, 2013 multiplied by 100.
iii. The sum of N1,000,000,000 (One Billion Naira) being general damages payable to the Claimant by the Defendant for the Defendant’s failure or refusal to comply with the Claimant’s instruction contained in the Claimant’s letter dated 22nd July, 2013 aforesaid.
iv. Interest at the rate of 12% per annum from 22nd July, 2013 until Judgment is delivered which rate of interest was due and payable by agreement of the Claimant and Defendant for keeping the Claimant’s money with the Defendant in an interest yielding account.
v. Interest on the total sum awarded by this Honourable Court at the rate of 10% per annum from the date Judgment is delivered until final payment by the Defendant.

The issue in the instant appeal had to do with instructions given by the Respondent’s letter of 22/7/2013 directing the Appellant to transfer the sum of N522,807,000.00 from the self-same accounts. Now, if the said accounts had been unfrozen and the Appellant allowed to recommence normal banking operations on both accounts, all instructions of the Respondent on the said accounts, by whatever means conveyed, would certainly be honoured by the Appellant. In other words, in both suits, the res remained the funds in the Respondent’s Accounts domiciled with the Appellant and the right of the Respondent to access the said funds.
The issue in both suits was therefore, the refusal by the Appellant to allow normal operations of the said accounts by honouring the instructions of the Respondent, through its Directors, whether conveyed by cheque or by other written instructions. By the issue already decided on in Suit No ID/ADR/92/2013, it is clear that there was issue estoppel.

As already noted above, the two categories of estoppel per rem judicatam are – Cause of Action Estoppel, precludes a party to an action from asserting or denying as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a Court of competent jurisdiction in a previous litigation between the same parties; and Issue Estoppel. The rule guiding issue Estoppel is that once one or more issues have been raised in a cause of action and distinctly determined or resolved between the same parties in a Court of competent jurisdiction, then neither party nor his agent or privy is allowed to relitigate that or those decided issues all over again in another action between the same parties or their privies on the same issues; Fadiora v. Gbadebo (supra); Makun & Ors v FUT, Minna & Ors (supra).
In taking the contrary position, the Respondent’s Counsel had pointed out some alleged differences between the previous suit and the instant suit. One of these was that the cause of action in both suits arose on different dates. Whilst the cause of action in Suit No: ID/ADR/92/2013 arose on 30th and 31st August, 2012 when the Respondent’s two cheques

were dishonoured the cause of action in this case arose on 22/7/2013 when the Appellant refused to comply with the Respondent’s instructions. I do not see this as a difference affecting the operation of the doctrine. Cause of action has been defined to mean the facts which when proved will entitle a plaintiff to a remedy against a defendant. It consists of every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment; Oshoboja v Amuda (1992) LPELR-2804(SC); Afolayan v Ogunrinde (1990) LPELR-198(SC). Any act on the part of the defendant which gives to the plaintiff his cause of complaint is a cause of action; Bello v AG, Oyo State (1986) LPELR-764(SC), (1986) 1 SC 1-76. This is different from the res, which is the subject matter of complaint, being in this case, the funds in the Respondent’s two accounts domiciled with the Appellant and the right of the Respondent to access those funds, employing any instrument to convey its instructions. There can be different causes of action arising on different dates from the same res; Udoh v Obot (supra).

Another alleged difference was that whilst Suit No: ID/ADR/92/2013 involved third parties presenting cheques to the Appellant which were dishonoured, this suit is based on the instruction made directly by the Respondent to the Appellant. Again, I see no difference here. I agree with the Appellant’s Counsel that it is a distinction without a difference. I already made the point that the order of the previous Court was for the Appellant to allow normal banking operations to resume on both accounts of the Respondent by honouring all instructions. The instrument employed by the Respondent to convey the instruction is not tied. The order sought in the present suit, if granted, would have the same effect of having the Appellant unfreeze the Respondent’s Accounts domiciled with them, and honour the Respondent’s instructions on the said accounts.
Another difference was argued to be that the reasons why the Respondent’s accounts at the time of the filing of Suit No: ID/ADR/92/2013 were frozen, were stated in the pleadings whilst there is no contention in this suit that the Respondent’s account is frozen. There again is no difference here. Principally, there was a bar to normal operations on

both accounts of the Respondent by the Appellant. The instant suit has arisen because that said order of Court given in the previous suit had not been complied with.
The Respondent’s Counsel also highlighted facts that differed in the two matters. It is important to emphasize that it is not every question of fact which is in dispute between a plaintiff and a defendant that constitutes ‘an issue’; Messrs Lewis and Peat (N.R.I) Ltd v. Akhimien (supra). The fundamental problem was that the Respondent’s cheque and or instructions were not honoured, which issue had already been settled by the Court in the previous suit, with an order made to the Appellant to, inter alia, honour all instructions of the Respondent. Once a Court has decided an issue of fact or law necessary to its judgment, that decision precludes relitigating of the same issue in a suit on a different cause of action involving a party to the first case. This is issue estoppel.
The Appellant’s Counsel rightly reasoned that a grant of the orders sought in the present suit would have the backdoor effect of execution of the orders given in the previous suit, which are on

appeal. This is simply because the accounts of the Respondent would need to be unfrozen and normal banking operations resumed for the orders sought in the present suit to take effect. Further, once the orders sought in the present suit are made, the wind will be taken off the sail of any appeal in Suit No ID/ADR/92/2013, as the orders made therein would now be executed. It is for this reason that, in my considered view, instituting the instant suit in the face of the subsisting orders made in Suit No ID/ADR/92/2013, amounted to improper use of the judicial process, which is an abuse of Court process; Agwasim v Ojichie (2004) LPELR-256(SC); Ikine v Edjerode (2001) LPELR-1479(SC).
The elements required to be proved to bring into operation the principle of estoppel per rem judicatam were therefore in place. The parties are the same in both the previous and the present proceedings; the issue in dispute in both actions, which was for the Appellant to allow the Respondent to resume normal banking operations on both accounts domiciled with the Appellant, is the same; the res or the subject matter of the litigation in the two cases, which was the funds in the

Respondent’s Accounts domiciled with the Respondent, and the Respondent’s right to those funds, is the same; the decision relied upon to support the plea of estoppel per rem judicatam is valid, subsisting and final; and the Court that gave the previous decision in Suit No ID/ADR/92/2013 was a Court of competent jurisdiction. The sole issue distilled for determination is thus resolved in favour of the Appellant and against the Respondent.

I find merit in this appeal. It is hereby allowed. The Ruling of the High Court of Lagos State made in Suit No LD/881/2013 on 27/10/2015 is hereby set aside. The said Suit No LD/881/2013 is, in consequence, hereby struck out.
Parties shall bear their costs.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have read the leading judgment prepared by my learned brother ONYEKACHI AJA OTISI, JCA.

The sole issue distilled for determination in the appeal has been comprehensively dealt with in the leading judgment and resolved with admiration. There is nothing meaningful that I can add to the leading judgment by way of contribution.

In the circumstances, I adopt the leading judgment as mine and equally hold that the appeal is meritorious and allow the same. I abide with the consequential orders made in the leading judgment, including the order in relation to costs.

TANI YUSUF HASSAN, J.C.A.: I have had the preview of the judgment just delivered by my learned brother, ONYEKACHI AJA OTISI, JCA and I agree the appeal has merit and it is also allowed by me. I abide by the consequential order made therein.

Appearances:

Oladapo Ademola, Esq.,with him,Yetunde Awhanbe, Esq. For Appellant(s)

S.G. Adeotan, Esq. For Respondent(s)