WILLIAM MADU NWAZOTA v. BENJAMIN NWOKEKE
(2010)LCN/4039(CA)
In The Court of Appeal of Nigeria
On Thursday, the 11th day of November, 2010
CA/PH/162/04
RATIO
WHETHER THE DOCTRINE OF ESTOPPEL PER REM JUDICATAM IS CREATED BY ALL DECISIONS OF COURTS OF COMPETENT JURISDICTION
The law is that the doctrine of estoppel per rem judicatam is created by all decisions of courts of competent jurisdiction even the decision of a Customary Court which has not been set aside. See LINUS OKEKE & ANOR. v. CHINYERE NWANKWO & ANOR. (2003) 4 SCNJ 211 . PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
PRIVY: WHO IS A PRIVY
According to Black’s Law Dictionary a “privy” in a suit or in the con of litigation means – “Someone who controls a law suit though not a party in it, someone whose interests are represented by a party in the law suit, and a successor in interest to anyone having a derivative claim.” A person also qualifies as a Privy when he is a privy in Estate which includes “a guarantor and guarantee” or “lessor and lessee” which can also extends to the term “Donor and Donee” of a legal interest in land. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
RES JUDICATA: MEANING OF THE TERM “RES JUDICATA”
Res judicata means that once a dispute has been finally and judicially pronounced upon or determined by a court of competent jurisdiction, neither party thereto or their privies can subsequently be allowed to relitigate such matter in court. A judicial decision properly handed down is conclusive until reversed by a superior court and its veracity is not open to challenge nor can it be contradicted. The term derives its force from that good policy which says that there must be an end to litigation. See SUARA YUSUF v. ADEGOKE (2007) 11 NWLR Pt. 1045 Pg. 332; AJIBOYE v. ISHOLA (2006) 13 NWLR Pt. 998 pg. 628. In AJIBOYE v. ISHOLA supra, the Supreme Court was clear on the law that where an issue of fact has been judicially determined in a final manner between the parties or their privies, such issue cannot be relitigated in a subsequent suit. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
RES JUDICATA: EFFECT OF THE PLEA OF RES JUDICATA ON THE JURISDICTION OF THE COURT TO RECEIVE EVIDENCE CONCERNING THE MERIT OF A SUBSEQUENT SUIT
The effect of the plea of res judicata when it is successful as in this case is to obviate the need for a court to receive evidence concerning the merit of a subsequent suit. See EKAETE BASSEY OKPOSIN & ORS. V. FLORENCE ASSAM & ORS. (2005) 7 SCNJ 442. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
WILLIAM MADU NWAZOTA Appellant(s)
AND
BENJAMIN NWOKEKE Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the Abia State High Court presided over by His Lordship Hon. Justice Ijeoma Offonry delivered at Osisioma on 1st July, 2002.
The Plaintiff/Appellant on the 17th day of July 2000 filed a writ of summons and statement of claim against the defendant/Respondent claiming the reliefs set out on pages 16-27 of the record of appeal.
The reliefs are stated below:
“(a) a declaration that the piece or parcel of land known as and called ALA OKPULO AMACHI is situate at Umuaduru Ngwa Local Government Area of Abia State of Nigeria.
(b) A declaration that the Plaintiff is entitled to a Statutory Certificate of Occupancy of the aforesaid parcel of land.
(c) An injunction restraining the Defendant his servants, agents, or privies from interfering with the rights and possession of the Plaintiff over the said land.”
The Defendant/Respondent filed his statement of defence on the 14th day of July 2004 and at the same time filed a Motion on Notice pursuant to Order 24 rules 2 & 3 of the High Court Rules praying the court to dismiss the claim on the grounds of functus officio, lis pendens and res judicata. The learned trial judge after considering the written addresses of both counsel struck out the action. Dissatisfied with the Ruling, the Plaintiff/Appellant has filed this appeal. Let us look at the facts I was able to glean from the Respondent’s affidavit and the exhibits attached thereto at the lower court.
The Respondent (as Plaintiff) had sued one Oji Oba Kalu and 9 others (as Defendants) in suit No. CC/OS/36/94 before the Customary Court Awor for declaration of title to Customary right of Occupancy over “Ala Okpulor Amachi” land; declaration that the purported revocation of the irrevocable Power of Attorney granted by the Defendants to the Respondents over the said land is null and void, and an injunction restraining the defendants from further trespass into the land.
While suit No. CC/OS/36/94 was pending, one of the Defendants, Oji Oba Kalu purporting to have been empowered by the other 9 Defendants, donated a Power of Attorney over the “Ala Okpulor” land (hereinafter called “the land in dispute”) to the Appellant.
The Appellant applied by Motion to be joined as an interested party to the suit. He then moved the motion while the Respondent was replying to it, withdrew it and same was accordingly struck out. The Appellant then testified as a witness to the Defendant that the land in dispute belonged to the Defendants.
The Respondent won the case as the court nullified the Defendant’s revocation of the Respondent’s Power of Attorney and granted customary right of Occupancy of the land in dispute to the Respondent.
On the 3rd day of June 1999, the Defendants appealed against the judgment to the Customary Court of Appeal, Umuahia in suit No. CCA/UM/2000.
While the Defendants’ appeal was pending, the Appellant on his own part filed a Certiorari Application in suit No. HOS/40M/99 at the High Court Osisioma against of the judges of the Customary Court Awor and the Respondent, asking the High Court to quash the judgment of the Customary Court, Awor on the ground that by virtue of the Designation of Urban Areas Order No. 1998 of Abia State, the land in dispute is located in an urban area outside the jurisdiction of the Customary Court Awor. The High Court Osisioma on 10/4/2000 dismissed the Appellant’s application.
Thereafter, the Appellant filed another suit by writ of summons in suit No. HOS/68/2000 at the same High Court, Osisioma against the Respondent contending in paragraphs 17 and 19 of his statement of claim that by the designation of Urban Area Order 1998 of Abia State, the land in dispute came within urban area and outside the jurisdiction of the Customary Court, Awor. He also asserted that the Customary Court had no jurisdiction to make the declaration in suit No. CC/OS/36/94. He claimed the reliefs already set out above. The Respondent filed a motion for dismissal on the grounds of lis pendens, functus officio and res judicata.
The lower court in a considered Ruling on 1st July 2002 held that the Appellant’s case was incompetent on the ground of res judicata and struck it out hence this appeal.
The Appellant’s brief is dated 14/9/2004 filed on 23/9/2004. The Respondent’s brief is dated 13/10/08 filed on 16/10/08.
The issues formulated in the Appellant’s brief settled by Chief E. T. O. Njoku and adopted by Respondent’s counsel are as follows:
“(1) Whether the learned trial judge was right in striking out Appellant’s claim on the ground of the doctrine of res judicata,
2) Whether the learned trial judge wasright when she struck out suit No.HOS/68/2000 on the ground that the parties, issues and subject matter were the same as in the Customary Court suit No. CC/OS/36/94 on the ground of res judicata and estoppel per rem judicatam?”
In my view, the two issues are a repetition of each other and the answer to the first issue is adequate answer to the complaints of the Appellant as set out in the grounds of appeal. I will consider the first issue as the sole issue in determining this appeal.
On this sole issue, Appellant’s counsel argued that the decision held up by the Respondent as res judicata was not a final decision by the court in suit No. HOS/49M/99 as to the situation of the land in dispute. He argued that the learned trial judge gave an option for further evidence in another trial and the suit in HOS/68/2000 was brought by the Appellant in the exercise of his further options in this matter. Counsel argued that admittedly the parties in HOS/40M/99 and HOS/68/2000 are the same, however, the adjudication in the previous suit HOS/49M/99 was by a competent court but the issues are not the same. While the issue in HOS/49M/99 was jurisdiction and location of the land ALA OKPULO AMACHI the main issue in HOS/68/2000 was the location of the land. What the court decided on the issue of location was that further evidence was required to establish whether the location is in an urban area or not. In other words, the location was not finally decided. The issue of jurisdiction was tied to the issue of location. He therefore submitted that the plea of res judicata or estoppels per rem judicatam was not established.
Learned Appellant’s counsel also argued that the Applicant in the motion at the lower court wanted the court to hold that the issues in HOS/68/2000 had been determined in the previous suit HOS/40M/99. However, counsel argued, the court refused to hold as prayed but went on to decide an issue not before the court viz that is whether the Customary Court suit No.CC/OS/36/94 operates as estoppel in respect of the Appellant’s action at the lower court. Counsel argued that the Appellant not being a party before the Customary Court cannot be bound by that judgment and it cannot operate as res judicata against him. He cited ODUTOLA v. ODERINDE supra; NKANU v. ONUN (1977) 5 SC.11 DZUNGWE v. GBISHE (1985) 2 NWLR Pt. 8 Pg. 528; UDO v. OBOT (1989) 2 NWLR Pt. 95 Pg. 59.
In the Respondent’s brief settled by B. N. Onuoha, the learned Respondent’s counsel argued that what weighed on the mind of the lower court in striking out suit no. HOS/68/2000 on the ground of res judicata was not the Ruling of Hon. Justice S. O. E. Nwanosike is suit no. HOS/49M/99, but the judgment of the Customary Court, Awor in suit No.CC/OS/36/94. That is what the lower court meant when it said
“In as much as I do not agree with the Applicant’s counsel that the suit had been determined in HOS/40M/99 but the decision of the lower court still stands.”
He referred to page 105 lines 17 to 29 of the record of appeal. He argued that the above position of the lower court supports its decision to strike out suit no. HOS/68/2000 on ground of res judicata.
Counsel argued that the Customary Court decision in suit No. CC/OS/36/94 which decided that the land in dispute is not in an urban area has not been set aside. Thus the Appellant’s suit is caught by the doctrine of res judicata. He cited SUARA YUSUF v. ADEGOKE & ANOR. (2007) 30 NSCOR Pg. 269 to Pgs 298-299; AJIBOYE v. ISHOLA (2006) 39 WRN 1 at Pg. 19, 40-45.
From the records of appeal, I can glean from the affidavits attached to the motion before the lower court that there is a subsisting judgment of the Customary Court in suit No. CC/OS/36/94. It is also clear that the appeal against that judgment was never concluded at the Customary Court of Appeal in suit No. CCA/UM/2000. Concurrent with the appeal filed by the Appellant’s privies was the certiorari proceedings in HOS/40M/99 filed by the Appellant. The Certiorari was to quash the decision of the Customary Court for lack of jurisdiction. The complaint of the Appellant is that the decision in HOS/40M/99 cannot form estoppel against suit HOS/OS/68/2000 which was the specific prayer before the lower court. I agree that the decision in HOS/40M/99 was in respect of certiorari proceedings and no claim was made nor declaration of title sought.
The learned trial judge was quite clear with regard to the motion in HOS/40M/99 before him. On pages 80-81 of the record, the court held as follows:
“If, as found by the lower court, Uruakpare mentioned in Exh. F is not an autonomous community or village in Osisioma Ngwa Local government Area, it seems to me therefore that Umuaduru or Umugwu where the land is said to be situate cannot be part of Umuakpara for the purpose of Exh.F as to exclude the jurisdiction of the lower court. The members of the lower court who are natives of the locality are in a better position than this court to know the boundaries of its towns and village for the purpose of Exh. F. This court will therefore be reluctant to upset that finding which is an issue of fact that requires further evidence to show that Umuakpara as contained in Exh.F is the same as Umuaduru or Umugwu as in the claim. This may be proved, may be, in another proceeding in a competent court, if the Applicant so desires.
He could take steps, if satisfied that the land is subject to a Statutory and not Customary Right of Occupancy to show that fact. But for this application, this court is not satisfied that the lower court had no jurisdiction over the subject matter before it. In the circumstance the application for the writ to issue is accordingly refused. The order nisi made by this court hereby discharged.”
In this case, the trial court at pages 94-106 of the record held as follows:
“In as much as I do not agree with the applicant’s counsel that the suit had been determined in HOS/40M/99 but the decision of the lower court still stands. It was not set aside. However, I agree that parties are the same; issues are the same and same subject matter as in CC/OS/36/94. The issue of previous judgment has been raised and such judgment is effective, conclusive and binding on the parties. It is an abuse of court process to refile this present case….”
“The Plaintiff/Respondent is caught by the doctrine of res judicata and estoppels per rem judicatam……. The advice of the learned trial judge does not mean that the parties litigate two times over the same issues and subject matter.”
The conclusion of the trial court in this appeal showed that it considered the judgment in suit No.CC/OS/36/94 and it was the basis of its decision to dismiss the suit on the grounds of res judicata.
The law is that the doctrine of estoppel per rem judicatam is created by all decisions of courts of competent jurisdiction even the decision of a Customary Court which has not been set aside. See LINUS OKEKE & ANOR. v. CHINYERE NWANKWO & ANOR. (2003) 4 SCNJ 211 .The lower court had to consider all the affidavit evidence before it in aid of its decision to grant or dismiss the motion before it. The argument of the learned Appellant’s counsel that the trial court was not called upon to consider the effect of suit CC/OS/36/94 is misconceived.
The Respondent at the trial court tendered evidence of all the legal antecedents of the dispute to raise the plea of res judicata to shield him from the current litigation. I think the learned trial judge was at liberty to consider all the antecedents. The evidence was clear that there is a subsisting judgment of the Customary Court between the parties which has not been set aside. The argument of the learned Appellant’s counsel that the Appellant was not a party to the Customary Court action is untenable. He was a privy to the Defendants in suit CC/OS/36/94 where he was one of the witnesses for the Defendants.
According to Black’s Law Dictionary a “privy” in a suit or in the con of litigation means –
“Someone who controls a law suit though not a party in it, someone whose interests are represented by a party in the law suit, and a successor in interest to anyone having a derivative claim.”
A person also qualifies as a Privy when he is a privy in Estate which includes “a guarantor and guarantee” or “lessor and lessee” which can also extends to the term “Donor and Donee” of a legal interest in land.Thus I am of the view that the Appellant as the donee of a power of attorney over the land in dispute is a privy of Oji Oba Kalu & Ors who were Defendants in suit No.CC/OS/36/94 at the Customary Court.
Res judicata means that once a dispute has been finally and judicially pronounced upon or determined by a court of competent jurisdiction, neither party thereto or their privies can subsequently be allowed to relitigate such matter in court. A judicial decision properly handed down is conclusive until reversed by a superior court and its veracity is not open to challenge nor can it be contradicted. The term derives its force from that good policy which says that there must be an end to litigation. See SUARA YUSUF v. ADEGOKE (2007) 11 NWLR Pt. 1045 Pg. 332; AJIBOYE v. ISHOLA (2006) 13 NWLR Pt. 998 pg. 628.
In AJIBOYE v. ISHOLA supra, the Supreme Court was clear on the law that where an issue of fact has been judicially determined in a final manner between the parties or their privies, such issue cannot be relitigated in a subsequent suit. The issue of the location of the land in dispute and who had right of occupancy to it had been litigated and determined in suit CC/OS/36/94 and having not been set aside is binding on the Appellant.
The effect of the plea of res judicata when it is successful as in this case is to obviate the need for a court to receive evidence concerning the merit of a subsequent suit. See EKAETE BASSEY OKPOSIN & ORS. V. FLORENCE ASSAM & ORS. (2005) 7 SCNJ 442.In the circumstances, the appeal lacks merit and it is hereby dismissed. The ruling of the trial court is hereby affirmed. N30,000.00 costs against the Appellant for the Respondent.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother OGUNWUMIJU JCA, I agree that the appeal lacks merit and I also hereby dismiss the appeal.
MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.
Appearances
E. T. O. NjokuFor Appellant
AND
B. N. OnuohaFor Respondent
