CHIEF SAMPSON ANIAGU & ORS. v. STEPHEN UGWU & ORS
(2010)LCN/4154(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of December, 2010
CA/E/375M/2006
RATIO
DOCTRINE OF PER REM JUDICATAM: OPERATION OF THE DOCTRINE OF RES JUDICATA AND WHAT MUST BE SHOWN BEFORE THE DOCTRINE OF ESTOPPED PER REM JUDICATAM CAN OPERATE
Now it is trite 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 rem judicatam from bringing a fresh claim before the court. At the same time the jurisdiction of the court to hear such claim is ousted. See ODADHE VS OKUJANI (1973) 11 SC 343, and UKAEGBU VS UGOJI (1991) 6 NWLR (PT 196) 127. But before the doctrine of estopped per rem judicatam can operate, it must be shown that the parties, issues and subject matter were the same in the previous case as those in the subsequent action in which the plea of Res judicata is raised. See DAGACI OF DERE vs. DAGACI OF FEBWA (2006) All FWLR (PT 306) 7 786 at 820 and IYAJI VS EJIYEGBE (1987) 3 NWLR (PT 51) 523. It is also settled that in a plea of Res judicata the question whether all the preconditions are satisfied by a party raising it is that of fact. See AWONIYI VS SHODEKE (2006) 13 NWLR (PT 996) 34, ETIM VS OBOT (2008) 12 NWLR (PT 1102) 754. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
DOCTRINE OF PER REM JUDICATAM: WHAT THE CONCEPT AND DOCTRINE OF PER REM JUDICATAM ENTAILS
In OSHODI VS EYIFUNMI (2000) 13 NWLR (PT 684) 298, the Supreme Court per Iguh JSC provided a clear elucidation of the concept and doctrine of Estoppel per rem judicatam in Ratios 2 and 4 as follows:- (2) On scope of operation of res judicata: The plea of res judicata operates not only against the party 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. The parties affected are estopped per rem judicatam from bringing a fresh action before any court on the same cause and on the same issues already pronounced upon by the court in previous action. (BALOGUN VS ADEJOBI (1995) 2 NWLR (PT 376) 131 referred to (page 325 paragraph E-F), “4. On condition precedent to successful plea of Estoppel per rem judicatam:- For the plea of estoppel per rem judicatam to succeed, the party relying on it must establish that:- (a) the parties or their privies are the same, that is to say, the parties involved in both the previous and present proceedings are the same. (b) the claim or the issue in dispute in both the previous and present action are the same; (c) the res, that is to say, the subject matter of litigation in the two cases is the same. (d) the decision relied upon to support the plea must be valid, subsisting and final; and (e) the court that gave the previous decision relied upon to sustain the plea must be a court of competent jurisdiction. Unless the above conditions are established the plea of estoppel per rem judicatam cannot be sustained. OKE VS ATOLOYE (No.2) (1986) 1 NWLR (pt.15) 241; YOYE VS OLUBODE (L974) 1 All NLR (PT 2) 118; ACASJ VS PIRO-ILO (1964) 1 All NLR 390 (196s) NMLR 66; FADIORA VS GBADEBO (1978) 3 S.C. 219; EKO VS UGUOMA (1940) 6 WACA 206; LATEIU VS IYANDA (1959) SCNLR 634; UDE VS AGU (1961) 1 SCNLR 98; (1961) 1 All NLR 65; MICHELIN (NIG) LTD VS GEORGE (1973)1 NMLR 107; ADIGUN VS GOV. OSUN STATE (1995) 3 NWLR (PT 385) 513; BALOGUN VS ADEJOBI (1995) 2 NWLR (PT 376) 131 referred to (pages 326 paragraph A – D; 349, Paragraph F – H.)”. See also the case of MARGI VS YUSUF (2009) where this court, in Jos Division, per Saulawa JCA held inter alia that:- “It is well settled principle however, that whenever the plea of res judicata, issue estoppel et al, is raised the question whether the parties, the parties, privies (Party in Privity), the facts, issues and the subject matter of the claim in the previous matter are the same with those in the current (later) case, is one of fact. See ADIGUN VS. GOV. of OSUN STATE No.3 Supra 513; ANWOJI VS SHODEKE Supra at 59 paragraphs C – D; ETIM VS OBOT supra respectively. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
PRELIMINARY OBJECTION: DUTY IMPOSED ON A COURT WHEN HEARING A PRELIMINARY OBJECTION
It must be borne in mind that preliminary objections are not granted as a matter of course or just for the asking – not even when it challenges the jurisdiction of the court to entertain a Suit. A court hearing such a preliminary objection is obliged to look at the merit of the issue raised therein and apply the relevant principles of law before reaching a decision whether or not to uphold the preliminary objection. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
FAIR HEARING: WHAT ARE THE BASIC CRITERIA AND ATTRIBUTES OF FAIR HEARING
The basic criteria and attributes of fair hearing has been held to include:- 1. That the court shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case. 2. That the court or tribunal shall give equal treatment, opportunity and consideration to all concerned. 3. That the proceeding shall be held in public and all concerned shall have access to and be informed of such a place of public hearing; and 4. That having regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done. See AWUSE VS ODILI (2005) All FWLR (PT 253) 720 at 728; DEDUWA VS OKORODUDU (1976) 9-10 SC 320 and ADIGUN vs A.G. OYO STATE (1987) 1 NWLR (Pt.53) 578. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
CLAIM OF BREACH OF RIGHT OF FAIR HEARING: POSITION OF THE LAW ON RAISING A CLAIM FOR BREACH OF RIGHT OF FAIR HEARING
It must be emphasized that the claim for breach of right of fair hearing is not meant to be raised as a matter of course or just for the asking. Cogent and substantial grounds for the breach ought to be clearly identified before such a complaint should be presented to a court for adjudication. In SABURI ADEBAYO VS A-G. OGUN STATE (2008) 33 NSCQR 1. The Supreme Court per NIKI TOBI JSC at pages 25 – 26 made the point very clear on the issue of complaints on fair hearing as follows:- “The fair hearing provision in the Constitution is the machinery or locomotive of justice not a spare part to propel or invigorate the ease of the user. It is not a casual principle of law available to a pari to be picked up at will in a case and force the court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case.” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
CHIEF SAMPSON ANIAGU & ORS. Appellant(s)
AND
STEPHEN UGWU & ORS Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of I. A. Umezulike (OFR) Chief Judge of Enugu State delivered on 5th day of July, 2006.
The Brief fact of the case is as follows:-
The Respondents as Plaintiffs in the lower Court instituted an action by way of Writ of Summons dated 3rd June 2002 claiming from the appellants as defendants:-
(1) Declaration that the plaintiffs are entitled to Customary/Statutory Rights of Occupancy over the pieces or parcels of land known as “NGENE UKWA” and or “AGU UWANI” Land situate at Akwuke in Enugu South Local Government Area of Enugu State.
(2) N100,000,000 (One hundred Million Naira damages for trespass.
(3) Injunction restraining the defendants, their servants, Agents and/or privies from any act of trespass on the pieces or parcels of land known as “Ngene Ukwa” and “Agu Uwani” situate at Akwuke in Enugu South Local Government Area of Enugu State.
Pleadings were subsequently ordered, filed and exchanged.
The defendants now (appellants) thereafter filed a Notice of preliminary objection dated 16/1/2006 wherein they objected to the hearing of the suit on the ground that the lower court had no jurisdiction to entertain same. The reason being that:-
(a) The subject matter in dispute has been litigated upon before, between the plaintiffs and the 1st set of defendants.
(b) The suit is thereby affected by Res JUDICATA
(c) The Plaintiff in the suit has neither right of action nor locus standi in the suit.
The Notice of preliminary objection was supported by a 10 paragraph affidavit and one exhibit attached therewith.
The Plaintiffs reacted by filing an 11 paragraph Counter affidavit, Written addresses were subsequently proffered by both parties and the Chief Judge in a considered Ruling delivered on 5/7/2006 concluded thus:-
“As I hinted above, the application seems premature at this stage and I decline it.
I rather order accelerated hearing and make no order as to costs.”
Dissatisfied with the ruling, the appellants then filed a Notice of Appeal containing two grounds on 30/11/2006. An amended Notice of Appeal bringing the number of grounds of appeal to three was subsequently filed with the leave of this Court vide a motion on Notice granted on 24/10/07.
From the appellants’ brief of argument deemed filed by order of this Court made on 24/10/07, three issues were formulated for determination. To Wit:-
(1) Was the learned trial Chief Judge right to hold that the preliminary objection was premature?
(2) Where the appellant’s right to fair hearing violated by the learned trial Chief Judge in the consideration of the preliminary objection?
(3) Is the Suit frustrated by the legal principle of of Res Judicata.
The Respondents in their own brief of argument filed on 9/5/2008 also raised 3 issues for determination, namely:-
(1) Whether the defendants/Appellants/Applicants established that the Suit is incompetent under the legal principles of Res Judicata
(2) Whether the trial judge was in error in wanting to hear the whole case before determining the issue of jurisdiction.
(3) Whether the decision of the Honourable Chief Judge was a final judgment on the issue of Res Judicata.
The issues raised by both parties are similar in con and are capable of properly disposing off this appeal but I will prefer to adopt the three issues as raised in the Appellants brief of argument for the consideration of this appeal.
On issue 1, learned counsel for the appellants submitted that the parties in the suit never locked horns on the issue whether judgment from the archives dated 10-3-52 operated as Res Judicata. He referred to paragraph 7, 23, and 24 of the Statement of defence, and paragraph 8 of the reply to statement of defence to show that the appellants did raise therein, the issue of Res Judicata but the respondents merely denied it without answering the material points raised by the appellants and that amounts to an admission. Also citing Nwosu Vs. Imo Statement Environmental Sanitation Agency (1990) 2 NWLR (PT 135) 688 learned counsel argued that Affidavit evidence is still evidence and the one filed in Support of the Preliminary Objection was not discredited by the trial Chief Judge before seeking for other evidence.
He submitted further that once Res Judicata is pleaded a judgment which creates Estoppel per Rem judicatam needs no further proof at the trial in which it is sought to be relied upon by such person. He referred to ODUKA VS KASUMU (1967) All NLR 293.
He concluded that since pleadings have been filed and served, the trial Chief Judge was in error to hold that the preliminary objection of the appellants was premature.
For the Respondents, their learned Counsel submitted inter alia, on this issue, that the trial Chief Judge did not dismiss the application of the appellants but only stated as follows in the Ruling:-
“The Court will prefer to take evidence on this crucial matter that may be dispositive of this action at the end of the day. The applicants without evidence cannot satisfactorily at this level show that there is an existing judgment of court over the subject matter of the Suit which parties in this Suit were bound”.
(see page 33 of the Record of proceedings)”
Learned Counsel further argued that an applicant for preliminary objection to dismiss a suit on grounds of Res Judicata must lead evidence to show that:-
(1) Parties are the same. See Ikem & Ors. Vs. Efamo & Ors. (2001) 10 NWLR (Pt.720) 1.
(2) Issue and subject matter must be the same.
(3) That the Court is court of competent jurisdiction.
(4) The previous decision must have finally decided the issue between the parties:
He then added that the four conditions must be satisfied through cogent, credible reliable, admissible and relevant evidence which the appellants could not provide in their affidavit in support as shown in page 15 of the record of proceedings.
Now for purposes of clarity, I will reproduce below, the portion of the Ruling of the lower court that has engendered this appeal. It reads:-
“The defendants by their statement of defence dated 5th May 2005 have clearly joined issues on quite a number of questions, which deserves to be examined upon the merits. The defendants averment under paragraphs 23 and 24 of the Statement of Claim that there was a subsisting judgment as respects the subject matter of the suit and the parties were roundly demanded (sic) in the plaintiffs reply to the defendants’ Statement of defence dated 9th March 2004. The implication is that the parties have locked horns on the question of whether the certified true copy of the judgment from the Archives dated 10/3/52 operated as Res Judicata. The contest therefore deserves to be critically examined upon the merits.
The court will prefer to take evidence on this crucial matter that may be dispositive of this action at the end of the day. The applicants without evidence cannot satisfactorily at this level show that there is an existing judgment of court over the subject matter of the suit which parties in this Suit are bound. As I hinted above, the application seems premature at this state and I decline it.
I rather order accelerated hearing and make no order as to costs.”
Now it is trite 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 rem judicatam from bringing a fresh claim before the court. At the same time the jurisdiction of the court to hear such claim is ousted. See ODADHE VS OKUJANI (1973) 11 SC 343, and UKAEGBU VS UGOJI (1991) 6 NWLR (PT 196) 127.
But before the doctrine of estopped per rem judicatam can operate, it must be shown that the parties, issues and subject matter were the same in the previous case as those in the subsequent action in which the plea of Res judicata is raised. See DAGACI OF DERE vs. DAGACI OF FEBWA (2006) All FWLR (PT 306) 7 786 at 820 and IYAJI VS EJIYEGBE (1987) 3 NWLR (PT 51) 523.
It is also settled that in a plea of Res judicata the question whether all the preconditions are satisfied by a party raising it is that of fact. See AWONIYI VS SHODEKE (2006) 13 NWLR (PT 996) 34, ETIM VS OBOT (2008) 12 NWLR (PT 1102) 754.
In OSHODI VS EYIFUNMI (2000) 13 NWLR (PT 684) 298, the Supreme Court per Iguh JSC provided a clear elucidation of the concept and doctrine of Estoppel per rem judicatam in Ratios 2 and 4 as follows:-
(2) On scope of operation of res judicata: The plea of res judicata operates not only against the party 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. The parties affected are estopped per rem judicatam from bringing a fresh action before any court on the same cause and on the same issues already pronounced upon by the court in previous action. (BALOGUN VS ADEJOBI (1995) 2 NWLR (PT 376) 131 referred to (page 325 paragraph E-F),
“4. On condition precedent to successful plea of Estoppel per rem judicatam:-
For the plea of estoppel per rem judicatam to succeed, the party relying on it must establish that:-
(a) the parties or their privies are the same, that is to say, the parties involved in both the previous and present proceedings are the same.
(b) the claim or the issue in dispute in both the previous and present action are the same;
(c) the res, that is to say, the subject matter of litigation in the two cases is the same.
(d) the decision relied upon to support the plea must be valid, subsisting and final; and
(e) the court that gave the previous decision relied upon to sustain the plea must be a court of competent jurisdiction.
Unless the above conditions are established the plea of estoppel per rem judicatam cannot be sustained. OKE VS ATOLOYE (No.2) (1986) 1 NWLR (pt.15) 241; YOYE VS OLUBODE (1974) 1 All NLR (PT 2) 118; ACASJ VS PIRO-ILO (1964) 1 All NLR 390 (1965) NMLR 66; FADIORA VS GBADEBO (1978) 3 S.C. 219; EKO VS UGUOMA (1940) 6WACA 206; LATEIU VS IYANDA (1959) SCNLR 634; UDE VS AGU (1961) 1 SCNLR 98; (1961) l All NLR 65; MICHELIN (NIG) LTD VS GEORGE (1973)1 NMLR 107; ADIGUN VS GOV. OSUN STATE (1995) 3 NWLR (PT 385) 513; BALOGUN VS ADEJOBI (1995) 2 NWLR (PT 376) 131 referred to (pages 326 paragraph A – D; 349, Paragraph F – H.)”.
See also the case of MARGI VS YUSUF (2009) where this court, in Jos Division, per Saulawa JCA held inter alia that:-
“It is well settled principle however, that whenever the plea of res judicata, issue estoppel et al, is raised the question whether the parties, the parties, privies (Party in Privity), the facts, issues and the subject matter of the claim in the previous matter are the same with those in the current (later) case, is one of fact. See ADIGUN VS. GOV. of OSUN STATE No.3 Supra 513; ANWOJI VS SHODEKE Supra at 59 paragraphs C – D; ETIM VS OBOT supra respectively.”
Now the appellants’ grouse is that the trial court ought to have upheld their plea of res judicata in their notice of preliminary objection and strike out the Suit instead of ruling that it was brought prematurely.
A critically review of the ruling of the trial Chief Judge, part of which was reproduced above showed that he painstakingly went through the processes filed by the parties which includes, the Statement of Claim; Statement of Defence as well as the Affidavit in Support of the notice of preliminary objection and the counter affidavit before reaching the conclusion as reflected in his ruling.
It must be borne in mind that preliminary objections are not granted as a matter of course or just for the asking – not even when it challenges the jurisdiction of the court to entertain a Suit. A court hearing such a preliminary objection is obliged to look at the merit of the issue raised therein and apply the relevant principles of law before reaching a decision whether or not to uphold the preliminary objection.
It is also apposite to ephasise here that there is yet to be provided any clear cut guideline as to the stage of a proceeding when a plea of res judicata can be raised. It thus depended on the facts and circumstances of each case. See FEI BUSINESS ENTERPRICES LTD VS CREDIBLE FINANCE AND INVESTIMENTS LTD (2002) 30 WRN 32 where this very court per AKPABIO JCA held as follows:-
“The important thing to note in all the cases cited above is that whether one goes by the detailed law expounded by the Supreme Court or by the abridged version given by Appeal Court Justices, there is no specification about the stage in the proceedings at which the plea of “res judicata” can or must be raised, i.e. whether as preliminary objection or at the completion of pleadings. In my respectful view, everything depends on the facts and circumstances of each case.
Learned counsel for the appellants had relied heavily on paragraph 7 of their Statement of Defence and paragraph 5 of the affidavit in support of their Notice of Preliminary Objection to show that they raised the issue of res judicata which was not claimed by the Respondents either in their reply to statement of defence or their Counter affidavit. I however found this to be on the contrary and for clarity I will reproduce paragraphs (1 to 6) of the Plaintiffs (respondents) counter affidavit. It reads:-
(1) That the plaintiffs are not a party to Awkunanaw Native court Suit Nos.14-16/60.
(2) That the defendants/applicants are very much aware of the above and took out Suit No.E/520/98 which was withdrawn.
(3) That thereafter the applicants filed suit No. E/817/2000 claiming the land.
(4). That the 5 – 8 defendants took out Suit No.E/631/2000 against the plaintiffs claiming the land.
(5) That the plaintiff/Respondents sued 1 – 4 defendants and 5 – 8 defendants claiming the land.
(6) That in Suit No.4/42 stated in Awkunanaw Native Court the defendants were ordered not to intefere with the plaintiffs’ ownership of the land by the Resident.”
To my mind, the above averments constitute enough denial and challenge to the applicants’ affidavit in support and having noticed the contentious nature of the issue and pleadings having been closed, the trial Chief Judge had to conclude that
“The contest therefore deserves to be critically examined upon the merit. The court will prefer to take evidence on this crucial matter that may be dispositive of this action at the end of the day. The applicants without evidence cannot satisfactorily at this level show that there is an existing judgment of court over the subject matter of the Suit which parties in this suit were bound.”
I agree entirely with the above conclusion. What I can glean from it is that the issue of res judicata has not been for closed but that more evidence is required to show that all the preconditions have been satisfied before the court can decide whether a plea of res judicata will be sustained. In this regard, issue No.1 is answered in the affirmative and is resolved against the appellants.
On issue No.2, it was the submission of learned counsel for the appellants that the learned trial Chief Judge at page 33 of records held the court will prefer to take evidence on this crucial issue that may be dispositive of this action at the end of the day”.
He added that the learned trial Chief Judge found it convenient to seek for evidence elsewhere without considering the available evidence presented before him in the proceedings by the appellants and the non consideration of the affidavit evidence is really fatal because an aspect of it is the judgment which is the basis of the plea of Res judicata.
Learned Counsel further submitted that the trial Chief Judge did not consider the written addresses in his ruling. Consequently, he added, the appellants’ right of fair hearing was violated in which case the said ruling should be set aside.
The basic criteria and attributes of fair hearing has been held to include:-
1. That the court shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case.
2. That the court or tribunal shall give equal treatment, opportunity and consideration to all concerned.
3. That the proceeding shall be held in public and all concerned shall have access to and be informed of such a place of public hearing; and
4. That having regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done.
See AWUSE VS ODILI (2005) All FWLR (PT 253) 720 at 728; DEDUWA VS OKORODUDU (1976) 9-10 SC 320 and ADIGUN vs A.G. OYO STATE (1987) 1 NWLR (Pt.53) 578.
I have placed the above criteria side by side the complaint of the appellants to identify the area or scope of defiance by the learned trial Chief Judge in violating their right to fair hearing but unfortunately I could only end up looking askance at the propriety of their allegation.
I have carefully perused the considered ruling of the learned trail Chief Judge as contained in pages 31 to 33 of the record of proceedings and found that he dealt with the issue as appropriate.
For purposes of justification I will here in below reproduce the relevant portion of the ruling that provided ready answer to the appellants complaint, Viz:-
At page 21 of record it was recorded as follows:-
“I have read closely the written arguments filed by the parties. The objection of the defendants/applicants is essentially that the action was res judicata.”
At page 32 lines 16 to 20 and page 33 lines 1 to 5. It continued thus:-
“The defendants by their Statement of defence dated 5th May 2003 have clearly joined issues on quite a number of questions, which deserve to be examined upon the merits. The defendants averment under paragraph 23 and 24 of the Statement of claim that there was a subsisting Judgment as respects the subject matter of the Suit and the parties were roundly demanded (sic) in the plaintiffs’ reply to the defendants Statement of defence dated 9th March 2004. The implication is that the parties have locked horns on the question of whether the certified true copy of the judgment from the Archives dated 10/3/52 operated as res judicata. The contest therefore deserves to be critically examined upon the merit.”
In the light of the above, there is, to my mind nothing to show that the appellants were denied their right to fair hearing. It must be emphasized that the claim for breach of right of fair hearing is not meant to be raised as a matter of course or just for the asking.
Cogent and substantial grounds for the breach ought to be clearly identified before such a complaint should be presented to a court for adjudication. In SABURI ADEBAYO VS A-G. OGUN STATE (2008) 33 NSCQR 1. The Supreme Court per NIKI TOBI JSC at pages 25 – 26 made the point very clear on the issue of complaints on fair hearing as follows:-
“The fair hearing provision in the Constitution is the machinery or locomotive of justice not a spare part to propel or invigorate the ease of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case.”
In this case the appellant want to pick it up at will and force this Court to apply it. This unfortunately cannot be allowed.
Issue No.2 is equally answered in the negative and also resolved against the Appellants.
That brings us to Issue No.3 which is whether the Suit was frustrated by the legal principle of res judicata. Now having regard to the issue discussed and the conclusion reached in issues 1 and 2 above, it seems to me that any answer given on issue No.3 will be speculative at this stage of the proceedings until relevant evidence is made available to the trial Chief Judge to enable him reach a proper decision on the merit.
Let me quickly observe here that this appeal was filed since 2007 and the time wasted in pursuing it at this level would have been enough to conclude the substantive suit at the lower court on the merit. The idea of rushing to the Court of Appeal at the slightest dissatisfaction with the ruling of a lower court does not urgur well for a smooth and efficient system of administration of Justice and can be termed to be an indirect way of slowing down the machinery of justice. This should be discouraged.
In conclusion, having regard to the three issues raised for determination and duly considered. I find that this appeal lacks merit and is hereby dismissed. I award a cost of N10,000.00 against the appellants.
AMINA A. AUGIE, J.C.A.: I have read the lead Judgment just delivered by my learned brother, Oseji, JCA, and I agree with him that the appeal should be dismissed. As he pointed out, it is not every time a party cries lack of fair hearing after leaving a trial Court that this Court will respond to rescue him – see Adebayo v. AG. Ogun State (2008) 7 NWLR (pt.1085) 201 SC.
In this case, it is quite clear that the open door to justice has not been shut in the face of the Appellants. All that the lower Court decided is that issues were joined by the parties, which deserves a closer look.
There is nothing ambiguous or complicated about what it said. I repeat-
“The Defendants by their Statement of Defence – – have clearly joined issues on quite a number of questions, which deserved to be examined on the merits. The Defendants’ averment – – that there is a subsisting Judgment as respects the subject matter of the Suit and the parties were roundly (denied) in the Plaintiffs’ Reply to the Defendants’ Statement of Defence – -. The implication is that parties have locked horns on the question of whether the certified true copy of the Judgment from the Archives – – operated as res judicata. The contest therefore deserves to be critically examined upon the merit.
No more need be said. There is no question that the appeal lacks merit. It therefore fails and is also dismissed by me. I abide by the consequential orders in the lead Judgment including that as to costs.
ABDU ABOKI, J.C.A: I agree.
Appearances
H. A. Orji (Mrs) with Bright Ngene and Ijeoma UzowuruFor Appellant
AND
U. O. UgwuFor Respondent
