MR. EZEKIEL ALABA AJAYI V. MR. OLAWALE OLOWU
(2010)LCN/4187(CA)
In The Court of Appeal of Nigeria
On Friday, the 16th day of April, 2010
CA/L/284/09
RATIO
PARTICULARS OF GROUND OF APPEAL: POSITION OF THE FORMULATION OF PARTICULARS OF GROUND OF APPEAL
…a Ground of Appeal does not necessarily have to set out particulars except where the Ground is on misdirection or error in law. What is paramount is that the particulars set out under the Grounds must be clear and explicit to communicate the highlight of the complaints and the conceptual flaws in their views in the Judgment. Thus there is no rigid rule on how particulars must be phrased. It depends on each case and the nature of the complaint. Of course the particulars must be set out in a manner that is devoid of ambiguity and preferably in paragraphs setting out the nature and purport of the complaint in such a manner that the Respondent and the court will appreciate the grievance and this will avert an element of surprise. See Ayua v. Aclas (1992) 3 N.W.L.R. (pt.231) pag.59B. In Osasona v. Ajayi (2004) All F.W.L.R. (pt.216) pg 43, the Supreme Court had this to say: “It is the particulars of the error of law or misdirection alleged that will ensure that the ground of appeal is sufficiently set out. Where appropriate, those particulars should be set out or tabulated, particularly where a passage is quoted from the Judgment appealed from as representing the error of the law or misdirection alleged. However the particulars need not always be separately set out but may be embodied or incorporated in the ground of appeal itself, provided the ground is so framed as to leave no one in doubt as to the error complained of”. PER REGINA OBIAGELI NWODO, J.C.A.
ATTITUDE OF THE COURT TOWARDS A NOTICE OF APPEAL THAT ITS PARTICULARS ARE INELEGANTLY DRAFTED
The courts are reluctant to strike out a Notice of Appeal on the grounds that the particulars are inelegantly drafted See SCOA (Nig.) Plc. v. Alhaji Nasiro Mohammed & Anor. (2004) N.W.L.R. (pt.862) pg. 20. PER REGINA OBIAGELI NWODO, J.C.A.
RES JUDICATA : AIM OF THE PRINCIPLE OF RES JUDICATA
The principle of res judicata is one aimed at avoiding duplicity or multiplicity of litigation. The essence of the principle is that a previous Judgment previously handed down will constitute a bar to a present action if certain conditions are satisfied. PER REGINA OBIAGELI NWODO, J.C.A.
RES JUDICATA : CONDITIONS THAT MUST BE SATISFIED BY A PARTY PLEADING RES JUDICATA
…it is trite law that to sustain a plea of res judicata, the party pleading it must satisfy the following conditions to wit: (1) that the parties (or their privies as the case may be) are the same in the present case as in the previous case; (2) that the issue and subject-matter are the same in the previous suit as in the present suit; (3) that the adjudication in the previous case must have been given by a court of competent jurisdiction; and (4) that the previous decision must have finally decided the Issues between the parties. See for example Nkanu & Ors. v. Onun & Ors (1977) 5 SC 13; Ikpang v. Edoho (1978) 6-7 SC 221; Ozungwe v. Gbishe (1985) 2 N.W.L.R (pt.8) 528; Udo v. Obot (1989) 1 N.W.L.R. (pt.95) 59. The failure to satisfy this condition means failure of the plea of res judicata in its entirety. See Afolabi v. Gov. Osun State (2003) 13 N.W.L.R (pt.836) SC 119, Abubakar v. B.O. & AP Ltd. (2007) 18 NWLR (pt.1066) SC 319. These conditions must all coexist, in effect all must conjunctively be established. PER REGINA OBIAGELI NWODO, J.C.A.
RES JUDICATA : DUTY IMPOSED UPON A COURT BEFORE WHOM A PLEA OF RES JUDICATA IS RAISED
The duty of the court before whom a plea of res judicata is raised is to carefully investigate the matter in order to decide whether the plea applies to the current circumstance. The rationale of the plea of Res judicata is founded on the principle that a party is precluded from contesting the contrary of any precise point which has once been distinctly put in Issue and with certainty determined. See William Ladega & Ors. v. Shittu Durosimi & Ors. (1978) 3 SC, 91 at 101, 4th Edition Halsburys Laws of England Vol. 16 para. 1530. What the court should look at is the Issue raised and the cause that gave rise to the dispute. The cause of action in both Suits should be ascertained This is because the right and capacity in which the previous suit and a current Suit are contested may not be the same. See Raphael Udeze & Ors. V. Paul Chidebe & Ors, (1990) 1 N.W.L.R (pt.125) 141 Supreme Court. In the previous Suit No. ID/2072/98, 2 Issues raised for determination reads as follows: “(1) Whether the title of the Plaintiff’s grantor and by logical extension the Plaintiff’s title to land in dispute was established. (2) Whether having regard to the pleadings and evidence Plaintiff proved his claims and thereby discharged the general burden imposed upon him by law”. In the current Suit the Appellant’s claim is on declaration as to his entitlement to the grant of statutory right of occupancy as reflected on Survey Plan No. AB/244/251/2007/LA dated 2nd March, 2007. Looking at the current pleadings of the Appellant, it is clear from the fact that the relief is founded on a different cause of action, title and evidence. A cause of action arises from different facts that give rise to a claim that can be enforced in a court of law and thus lead to the right to sue a person responsible for that existence directly or indirectly. For plea of res judicata to succeed the cause of action in the later proceedings must be identical with the cause of action in the earlier proceedings. The defence connotes that the legal rights of the parties in respect of the subject matter of the action are conclusively determined by the earlier action. See Ikeni v. Efamo (2001) CLR 6(1) SC. PER REGINA OBIAGELI NWODO, J.C.A.
Before Their Lordships
RAPHAEL CHIKWE AGBOJustice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWAJustice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODOJustice of The Court of Appeal of Nigeria
Between
MR. EZEKIEL ALABA AJAYIAppellant(s)
AND
MR. OLAWALE OLOWURespondent(s)
REGINA OBIAGELI NWODO, J.C.A. (Delivering the Leading Judgment): The Appellant as the claimant initiated proceedings filed 28-6-07 in the High Court of Lagos State against the Respondent as the Defendant at the court below wherein he claims the following:
“(a) A declaration that the Claimant is the person entitled to the grant of statutory right of occupancy in respect of all that landed property lying, being and situate at Iju Road, Ifako Ijaiye and more particularly reflected on Survey Plan No. AB/244/2007/LA dated 2nd March, 2007.
(b) An Order of perpetual injunction restraining the Defendant whether by himself, servants, agents, privies, representatives from entering upon, further, entering upon the Claimant’s aforesaid landed property aforesaid in a way and manner inconsistent with the Claimant’s proprietary rights in the aforesaid land.
(c) N2,000,000.00 (two million naira) being legal cost of this action .
(d) Further and other reliefs”.
Appellant filed the written depositions of his witnesses and copies of documents in support of his case in line with the High Court Rules of Lagos State. The Respondent entered a conditional appearance on the 21st day of August 2007 and filed a Notice of Preliminary Objection dated and filed 21st August 2007 wherein he raised the following objection. I reproduce:
“The Honourable Court lacks jurisdiction to entertain the Suit for the following reasons, to wit:
(a) The Suit is caught by the principles of res Judicata.
(b) The Suit is an abuse of court process.
GROUNDS FOR PRELIMINARY OBJECTION
(1) The subject matter and issues raised had been previously decided upon between the parties by this court in Suit No. ID/2072/98 E.A. Ajavi v. O. Olowu.
(2) The Judgment in Suit No. ID/2072/98 denied both parties title but found the defendant’s father to be entitled to possession of the land in dispute.
(3) Claimant did not appeal against the judgment but rather has been disobeying it.
(4) In Appeal No. CA/L/307M/2007 the applicant is seeking to set aside the decision in Suit No. ID/2072/98 on the issue of title.
(5) In Suit No. ID/344M/2007 the applicant is also seeking to protect the decision in Suit No. ID/2072/98 on the issue of possession.
(6) Appeal No. CA/L/307M/2007 and Suit No. ID/344M/2007 are still pending.
The learned counsel filed written addresses wherein they argued the 1 objection. The learned Trial Judge heard the arguments on 3rd November, 2008 and in a considered Ruling on the 5th of February, 2009 held:
“…I find and hold that there is merit in the Defendant’s Preliminary Objection and same is hereby upheld. This court thus declines to exercise her jurisdiction in this present Suit as none exists for the reasons elucidated above. The claims in Suit No. ID/813/07 is accordingly struck out in its entirety”.
Dissatisfied with the decision of the learned Trial Judge in the court below, the Appellant filed a Notice of Appeal on 12/2/09 containing one Ground of Appeal. In accordance with the Rules and Practice of this court parties filed their respective Briefs of Argument. The Respondent also filed a Notice of Preliminary Objection on 6/7/09 pursuant to Order 10 Rule 1 of the Court of Appeal Rules 2007.
At the hearing of the Appeal on the 26/1/10 the learned counsel for the Respondent Mr. Victor Opara adopted and relied on pages 2 – 9 of his Reply Brief and Argument in response to the Notice of Preliminary Objection. Ruling on the objection was reserved and the Appeal heard on the basis of determining the objection before the consideration of the Appeal.
Mr. Opara argued the Appeal relying on the Notice of Appeal filed 12/2/09 and adopting the Appellant’s Brief filed on 12/5/09 and the Reply Brief filed on 15/7/09 and urged the court to allow the Appeal. Learned counsel Mr Oyewo, adopted the Respondent’s Brief filed 6th July, 2009 and relied also on the Respondent’s Notice filed on 25th February, 2009 where they contend that the Suit ought to have been dismissed by the court below and not strike out order. He urged the court to dismiss the Appeal.
I will proceed to consider the Notice of Preliminary Objection filed and argued by the Respondent. The grounds for the objection as set out in the Notice reads as follows:
“GROUNDS FOR PRELIMINARY OBJECTION
(1) The particulars in support of the single ground of appeal are narrative, argumentative and not numbered consecutively as enjoined by order 6 rule 2(3) of the Court of Appeal Rules 2007.
(2) The particulars are unrelated to the ground of appeal and are thus liable to be struck out pursuant to order 6 rule 3.
(3) The single ground of appeal will be incompetent without relevant particulars under order 6 rule 2(2).
(4) The notice of appeal is liable to be struck out pursuant to order 6 rule 6”.
Learned counsel to the Respondent Mr. O. Oyewo in the Respondent’s Brief contends that the single particulars of error in the Notice of Appeal dated 11/2/2009 are narrative and consist of independent complaints and arguments not numbered consecutively as enjoined by the provisions of Order 6 Rule 2(3) of the Court of Appeal Rules 2007.
It is his further submission that the particulars are unrelated to the single Ground of Appeal and therefore cannot be said to form part of the ground and liable to be struck out pursuant to Order 6 Rule 3 of the Rules of Court.
Learned counsel’s further submission is that when the particulars are struck out then the single Ground of Appeal will become incompetent without relevant particulars under Order 6 Rule 2(2) and the Notice of Appeal itself will be liable to be struck out pursuant to Order 6 Rule 6 because there are no valid grounds to sustain the appeal. Learned counsel to the Appellant responding argued that the Respondent’s counsel did not give notice of the Preliminary Objection in his Brief of Argument before he went ahead to argue the Preliminary Objection in his Brief of Argument. It is the learned counsel’s contention that for the Respondent’s counsel to argue his objection in the Brief without the notice he needs the leave of this court which he has not obtained on the law as it relates to the procedure to be followed by a party who intends to argue his Notice of Preliminary Objection. He referred to the cases of Fagbule v. Rodriguez (2003) FWLR. (pt.137) pg. 1171, Nabaruma v.Offodile (2004) 13 N.W.L.R. (pt.891) pg. 599 and Alhaji v. Ma’ji (2002) 4 N.WL.R. (pt.756) pg. 46. He urged the court to discountenance all submissions thereto but if the court overrules his argument on the incorporating argument in the Brief without leave, it is his submission that the Particulars of Error in support of the sale Ground of Appeal in the Notice of Appeal is not narrative and argumentative.
It is his contention that Order 6 Rule 2(3) of the Court of Appeal Rules 2007 relates to Grounds of Appeal and not particulars of Error. Learned counsel further submits that it is not the law that Particulars of Error in a Ground of Appeal must be separately set out distinctively and in numbered paragraphs. He submits that the Court of Appeal would not strike out a Ground of Appeal only for the reason that the Particulars of Error were not separately numbered. It is his further submission that where a Ground of Appeal performs the dual role of setting out the Grounds simpliciter, as well as stating the Particulars of Error thereof, in such a way that both the court and the Report are not misled or there is no ambiguity, the Court of Appeal will be reluctant to strike out the Ground of Appeal. He cited Adeleke V. Asani (2002) 8 N.WL.R (pt.768) pg26, National Bank of Nigeria v. Opeola (1994) 1 N.WL.R (pt.319) pg 126.
It is his contention that in the instant Appeal the Ground of Appeal performs the dual role of setting out the Ground of Appeal simpliciter as well as the Particulars of Error, but that assuming without conceding that the Particulars of Error in support of the Appellant’s ground of Appeal are vague, the Court of Appeal in the case of SCOA (Nig.) Plc. v. Alhaji Nasiru Mohammed & Anor. (2004) NWL.R (pt.862) pg.20 has held that where Grounds of Appeal contain enough information about the complaint the ground would not be described as vague or struck out simply because the particulars are inelegantly drafted.
It is the final submission of Mr. Opara that the Particulars of Error in the Notice of Appeal are delivered from and related to the sale Ground if Appeal. The Rules of this court has stipulated the procedure to adopt when a party desires to raise a preliminary objection against an Appeal. Order 10 Rule 1 & 3 of the Court of Appeal Rules 2007 is apposite in the circumstance Order 10 Rule 1 stipulates as follows:
“A respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registrar within the same time”
and Rule 3 provides:
“If the respondent fails to comply with this Rule, the Court must refuse to entertain the objection or may adjourn the hearing thereof at the costs of the respondent or may make such other order as it thinks fit”.
Under Rule 1, a Respondent that intends to rely upon a preliminary objection to the hearing of the appeal shall give notice of the objection containing the grounds by filing such notice not less than three days before the hearing of the objection. Rule 3 gives the court the discretion to make an appropriate Order when there is non compliance to the provision under Rule 1. The Respondent in the instant appeal filed a Notice of Preliminary Objection dated and filed 6/7/09 at the Registry of this court as endorsed on the Notice the arguments in respect of the objection are clearly set out in the Respondent’s Brief. This procedure is in compliance with the Rules. It is not mandatory for him to set out the Notice of Objection in his Brief of Argument. He can do so and argue same if he so wishes. By the Rules once the Notice is filed independently the arguments in respect of same should be embedded in the Respondent’s Brief. He does not need any other leave to argue rather than to raise the point timely before Appeal is heard that there is a preliminary objection filed and argue same. There is nothing wrong with the procedure adopted by the Respondent, there is a Notice of Objection filed, same is in the court’s file. Learned counsel for the Appellant did not raise the point of non service on them at hearing of the Objection and Appeal. Furthermore, he reacted to the Objection.
The Appellant has a sole ground in the Notice of Appeal. The contention of the learned counsel for the Respondent is that the particulars are narrative containing arguments independent from the ground and not numbered consecutively. For purpose of emphasis, I believe it is appropriate to reproduce the sole ground and particulars hereunder:
“Ground of Appeal
The learned Trial Judge erred in law when she held that Suit No. ID/813/2007 is caught up by the doctrine of estoppel per rem judicata in that the parties, issues and subject matter in Suit NO/813/2007 are the same with the subject matter in a previously disposed Suit (i.e. Suit Number 10/2072/98. Ezekiel Alaba Ajayi v. Olarenwaju Olowu)
Particulars of Error:
(1) In Suit Number 10/2072/98, the Appellant herein sued the father of the Respondent herein, for Trespass to land and Perpetual Injunction. The Respondent’s father did not counter-claim for either Title or Possession of the land in dispute;
The Title documents of both the Appellant and the Respondent’s father were specifically voided and invalidated by the trial Court; in that the landed property was purportedly sold to the Appellant and the Respondent’s father during the pendency of Suit Number IK/103/71;
The learned Trial Judge in Suit Number ID/2072/98 thus held that both the Appellant and the Respondent’s father acquired nothing as their respective vendors had nothing to vend during the pendency of Suit Number ID/103/71;
Title to the landed property in dispute was thus denied the Appellant and the Respondent’s father; Upon the disposal of Suit Number IK/103/71 James Olugboyega Coker and Others v. Acceptance Engineering Company Limited and Others, by Honourable Justice Candide-Johnson of the High Court of Justice of Lagos State, (Suit Number IK/103/71 James Olugboyega Coker and Others vs. Acceptance Engineering Company Limited and Others was struck out for want of diligent prosecution) the Appellant herein re-approached his vendors; the Obawole Aina-Arupe Family of Lagos State and repurchased the property subject of litigation in Suit Number ID/2072/978.
Thus whilst the issue in Suit Number ID/2072/98 relates to the non acquisition of title to land (at all on grounds to lis pendens, the issue in Suit Number ID/813/07 relates to a proper acquisition of Title or land after disposal of Suit Number IK/103/71 James Olugboyega Coker and Others v. Acceptance Engineering Company Limited and Others in that the Appellant herein acquired judicially cognizable title to land.
The Respondent never denied the fact that Suit Number IK/103/71 has been disposed of, let alone deny that the Appellant repurchased the landed property in dispute after the disposal of Suit Number IK/103/71 James Olugboyega Coker and Others v. Acceptance Engineering Company Limited and Others.
Where a Court holds that a party cannot acquire landed property which is subject to litigation, there is nothing preventing the party from acquiring the same property upon the disposition of the case in court.
Thus,the issues in ID/813/07 and ID/2072/98 are dissimilar.
(2) Further Grounds of Appeal may be filed upon the receipt of the Record of Proceedings at the lower Court. ”
What then does the Rules provide as regards setting out the Notice of Appeal. Order 6 Rule 2(3) of the Rules of this court stipulates as follows:
“The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative, and shall be numbered consecutively”.
The aforesaid Rule 2(3) must be construed literally as the language therein is clear and unequivocal. The rules specifically provide that the Grounds of Appeal must have distinct heads without any argument or narration. This requirement is restrained to Grounds of Appeal under Order 6 Rule 2(2) where a Ground of Appeal alleges misdirection or error in law. The particulars and the nature of the misdirection or error shall be clearly stated. Therefore, a Ground of Appeal does not necessarily have to set out particulars except where the Ground is on misdirection or error in law. What is paramount is that the particulars set out under the Grounds must be clear and explicit to communicate the highlight of the complaints and the conceptual flaws in their views in the Judgment. Thus there is no rigid rule on how particulars must be phrased. It depends on each case and the nature of the complaint. Of course the particulars must be set out in a manner that is devoid of ambiguity and preferably in paragraphs setting out the nature and purport of the complaint in such a manner that the Respondent and the court will appreciate the grievance and this will avert an element of surprise. See Ayua v. Aclas (1992) 3 N.W.L.R. (pt.231) pag.59B.
In Osasona v. Ajayi (2004) All F.W.L.R. (pt.216) pg 43, the Supreme Court had this to say:
“It is the particulars of the error of law or misdirection alleged that will ensure that the ground of appeal is sufficiently set out. Where appropriate, those particulars should be set out or tabulated, particularly where a passage is quoted from the Judgment appealed from as representing the error of the law or misdirection alleged. However the particulars need not always be separately set out but may be embodied or incorporated in the ground of appeal itself, provided the ground is so framed as to leave no one in doubt as to the error complained of”.
I have looked at the Particulars of Error set out under the sole Ground of Appeal. It is explanatory in nature setting out in brief the facts that lead to the appeal to support the sole Ground of Appeal which is based on the doctrine of estoppel per rem judicata. These facts are set out in paragraphs but not numbered. These particulars are ancillary to the Ground and not inconsistent with the Ground of Appeal as submitted. It is narrative and argumentative in nature but these particulars are not the Ground of Appeal for me to hold, it is not in compliance with the rules of court barring narration and argument in the Ground. I agree with the learned counsel that the rule against argument and narration is limited to the Ground of Appeal.
What is fundamental is that the particulars must flow from the Ground of Appeal which must arise from the decision appealed against Learned counsel for the Appellant in his reply brief para 2.35 to 2.38 referred the court to the areas in the Judgment and the pleadings where the particulars were lifted from.
I must emphasis that Particulars of Error cannot arise from pleadings but the decision of the learned Trial Judge. The sole Ground of Appeal in the instant appeal raised a complaint of law. All the Appellant need do under particulars is to elucidate on the complaint against the Judgment not on a point not decided unless with the leave of court.
The Ground of Appeal in the instant appeal is clear on the error of law. It is straight to the point and a mere cursory look alone reflects the error and misdirection complained against. The absence of the numbering of the particulars is as to form and choice. In the instant Notice, it is my view that the particulars are related to the ground. Some of the particulars under the ground no doubt contain arguments but this is not sufficient to strike out the particulars as I do not see nor did the Respondent state they were mislead by the argument and narrative manner, in which some of the particulars were set out and that such form did occasion a miscarriage of Justice. The courts are reluctant to strike out a Notice of Appeal on the grounds that the particulars are inelegantly drafted See SCOA (Nig.) Plc. v. Alhaji Nasiro Mohammed & Anor. (2004) N.W.L.R. (pt.862) pg. 20. The modern approach to adjudication is to avoid strict adherence to technicality at the expense of substantial justice in hearing the merit of the application. In view of the foregoing the preliminary objection fails and it is hereby dismissed. The Appellant raised one Issue for determination which is ‘Whether suit ID/813/2007 is caught up by the doctrine of estoppel per rem judicata’, that is to say whether parties, issues and subject matter in suit 10/813/2007 are the same with the parties issues and subject matter in a previously disposed suit (ie., suit No ID/2072/98) Ezekiel Alaba Ajayi v. Olarenwaju).
It is the submission of the learned counsel that with the absence of the Record of Proceedings of the court in suit No. ID/2072/98 the Respondent’s Preliminary Objection is bereft of facts which may assist the court in coming to a decision one way or the other as regards the plea of res Judicata.
It is his contention that the court in dealing with the plea of res judicata has to study the pleadings, the proceedings and the Judgment in the previous action to be able to examine the relevant facts and discover what was in issue in the previous case. The learned counsel Mr. Opara then submitted that the learned Trial Judge erred in law when despite the absence of the requisite Record of Proceedings in suit No. ID/2072/98 she was able to arrive at a conclusion that suit No ID/813/2007 is caught up by the principles of res Judicata.
This submission of the learned counsel that the court erred in law to arrive at its decision in the absence of the requisite Record of Proceedings is not in support of an Issue distilled from a Ground of Appeal. It is settled law that Issues are distilled from the Grounds of Appeal. Equally trite is that, the arguments under the Issues must be based on the Issue distilled from the Ground and related to the particulars under that ground. Once a complaint is on misdirection or error in law the particulars of such error should be set out as required by the Rules. The essence is to give sufficient notice to the Respondent and the court. See N.B.N. v. Opeola (1994) 1 N.WLR (pt. 319) 126, Ogbuli v. Ogbuli (2008) 1 N.WL.R (pt.1068) CA 258.
The learned counsel to the Appellant in para 4.26 of the Appellant’s Brief decided to raise an error of law that is not a Ground of Appeal in the Notice of Appeal. The Rules of the court are clear that all complaints on misdirection or error in law should form a Ground of Appeal. Once an Appellant is dissatisfied with a particular decision of the trial court and he desires to complain about same it cannot be raised in the Brief of Argument but in the Notice of Appeal.
The Appellant’s counsel’s submission that the learned Trial Judge erred in law because the Record of Proceedings was not looked at, is not part of the Notice of Appeal and cannot be in the Appellant’s Brief unless where leave has been obtained to add additional ground to the Notice. I therefore discountenance Appellant’s argument on the requisite Record of Proceedings.
Mr. Opara’s submission is that on a proper investigation of the Statement of Claim in suit No. ID/813/2007 and all accompanying documents it will reveal that the evidence which are relevant to suit No. ID/813/2007 are radically different from the ones led in suit No. ID/2072/98. It is his further submission that the Issues for determination in both suits are different. Mr. Opara argued that in suit No. ID/2072/98 the learned Trial Judge voided the titles of both the Appellant and the Respondent’s father on the basis of the doctrine of ‘lis pendens’. It is his contention that there was no pronouncement in the said Judgment to the effect that the original Obawole Aina-Arupe family are not the owners of the land in dispute as the court only held that the family cannot rely on the Judgment in suit No. IK/103/71 to establish such title since the Judgment has been overturned by the Court of Appeal.
Learned counsel to the Respondent in his submission stated that in deciding whether the Issues are the same the court has to consider whether the evidence adduced in both suits are the same and whether the questions for decision in both are the same. It is his contention that in suit No. ID/2072/98, Appellant claimed damages for trespass and injunction relying on title documents that is the Judgment in Suit No. IK/103/71 of his Vendors without leading evidence of the family traditional history. He contended title was denied the Appellant in that suit but he still wants to rely on fresh title documents in the present suit He submits that the issue of title had already been decided on and the twin principle of estoppel apply first that there must be an end to litigation and second, a person cannot be vexed twice on the same cause. It is his further submission that, it is against public policy for a person to be vexed twice over the same cause. He strongly argued that the Appellant cannot relitigate the same cause merely by formulating fresh claims that is why S54 of Evidence Act provides facts directly in issue in the case and actually decided by the court. He cited Abubakar v. B.O. & AP Ltd. (2007) 18 N.W.L.R. (pt.1066) 319 at 373 to 374.
The issue distilled for determination is whether the doctrine of res judicata is applicable to suit No. ID/813/2007. In brief, the facts that lead to the present appeal are as follows: –
The Appellant initiated an action in the High Court in suit No. ID2072/98 against the Respondent’s father for trespass to land and perpetual injunction. The Respondent’s father did not counter-claim for either title or possession of the land in dispute. The land in issue is said to be assigned to the Appellant in 1977 by Obawole Aina-Arupe family, the family was in court in respect of a vast expanse of land inclusive of the land in dispute in suit No. IK/103/71. The Appellant in the previous suit instituted an action on trespass on the basis of the assignment in 1977. The learned Trial Judge in suit No. ID/2072/98 held that the Appellant failed to show his title is superior to that of the Respondent’s father, that he has not proved possession, and that he was not entitled to damages for trespass. The learned Trial Judge also held that the transaction of the 4th of March 1977 by the Appellant was caught by the doctrine of lis pendens. Thereafter, the case in Suit No. IK/103/71 wherein the Obawole Aina-Arupo family were involved on the issue of same land. No title was declared in that case. The Appellant then went back to Obawole Aina-Arupe family of Lagos State and purchased the same landed property the subject matter of litigation in Suit No. ID/2072/98. The same plots of land on 15th Dec, 2006 were resold and assigned to the Appellant by the Obawole Aina-Arupe family who issued a receipt of payment and executed a Deed of Assignment in favour of the Appellant. Appellant from the pleadings was put in possession and caused a survey plan to be drawn up. Based on the petitions to the Nigeria Police in respect of the land the Appellant instituted the present Suit No. ID/813/2007 wherein he sought the Relief’s earlier reproduced in this Judgment.
The sole question arising in this Appeal is whether the learned Trial Judge was correct to hold that the previous suit is the same as the current suit in the court below. The principle of res judicata is one aimed at avoiding duplicity or multiplicity of litigation. The essence of the principle is that a previous Judgment previously handed down will constitute a bar to a present action if certain conditions are satisfied.
In a galaxy of decided cases the Appellate court has set out this condition that it is now settled law. Therefore, it is trite law that to sustain a plea of res judicata, the party pleading it must satisfy the following conditions to wit:
(1) that the parties (or their privies as the case may be) are the same in the present case as in the previous case;
(2) that the issue and subject-matter are the same in the previous suit as in the present suit;
(3) that the adjudication in the previous case must have been given by a court of competent jurisdiction; and
(4) that the previous decision must have finally decided the Issues between the parties.
See for example Nkanu & Ors. v. Onun & Ors (1977) 5 SC 13; Ikpang v. Edoho (1978) 6-7 SC 221; Ozungwe v. Gbishe (1985) 2 N.W.L.R (pt.8) 528; Udo v. Obot (1989) 1 N.W.L.R. (pt.95) 59.
The failure to satisfy this condition means failure of the plea of res judicata in its entirety. See Afolabi v. Gov. Osun State (2003) 13 N.W.L.R (pt.836) SC 119, Abubakar v. B.O. & AP Ltd. (2007) 18 NWLR (pt.1066) SC 319. These conditions must all coexist, in effect all must conjunctively be established.
I will proceed to examine the above conditions in seriatium as it relates to the sole Issue raised in this appeal for determination. Parties include privies in blood and estate. Executors, trustees, beneficiaries, assignors, lessors are some of the examples of parties.
The Appellant in both the previous and current Suits are the same though the Respondent in the first Suit was the father of the Respondent and in Suit No. ID/813/2007 was the Respondent. Clearly, the requirement that parties be the same is satisfied. The second condition is whether the Issue and subject matter in the present Suit and the past Suit are the same. Both parties are not contesting that the subject matter is not the same, the subject that is the Res is the same.
The duty of the court before whom a plea of res judicata is raised is to carefully investigate the matter in order to decide whether the plea applies to the current circumstance. The rationale of the plea of Res judicata is founded on the principle that a party is precluded from contesting the contrary of any precise point which has once been distinctly put in Issue and with certainty determined. See William Ladega & Ors. v. Shittu Durosimi & Ors. (1978) 3 SC, 91 at 101, 4th Edition Halsburys Laws of England Vol. 16 para. 1530.
What the court should look at is the Issue raised and the cause that gave rise to the dispute. The cause of action in both Suits should be ascertained This is because the right and capacity in which the previous suit and a current Suit are contested may not be the same. See Raphael Udeze & Ors. V. Paul Chidebe & Ors, (1990) 1 N.W.L.R (pt.125) 141 Supreme Court.
In the previous Suit No. ID/2072/98, 2 Issues raised for determination reads as follows:
“(1) Whether the title of the Plaintiff’s grantor and by logical extension the Plaintiff’s title to land in dispute was established.
(2) Whether having regard to the pleadings and evidence Plaintiff proved his claims and thereby discharged the general burden imposed upon him by law”.
In the current Suit the Appellant’s claim is on declaration as to his entitlement to the grant of statutory right of occupancy as reflected on Survey Plan No. AB/244/251/2007/LA dated 2nd March, 2007.
Looking at the current pleadings of the Appellant, it is clear from the fact that the relief is founded on a different cause of action, title and evidence. A cause of action arises from different facts that give rise to a claim that can be enforced in a court of law and thus lead to the right to sue a person responsible for that existence directly or indirectly.
For plea of res judicata to succeed the cause of action in the later proceedings must be identical with the cause of action in the earlier proceedings. The defence connotes that the legal rights of the parties in respect of the subject matter of the action are conclusively determined by the earlier action. See Ikeni v. Efamo (2001) CLR 6(1) SC.
The Appellant in para. 23 to 33 of his pleading averred to facts in support of his claim. These facts may be new but certainly gave rise to a new set of cause that were not in existence at the time the Suit in ID/2072/98 was heard and determined.
In the present case, the new cause of action that is the facts averred in the pleading as conferring title on the Respondent was not an issue distinctively put to the court for determination, thus not directly determined with certainty. Generally, parties cannot begin fresh litigations because of new views they may entertain of the law the case, or new versions which they present as to what should be a proper apprehension by the court of the legal result either of construction of the documents or the weight of certain circumstances See Odevwedje & Anor. v. Echanokpe (1987) CLR 3(d) SC.
I therefore hold that the issue of new title averred by the Respondent was not determined in the previous case. It is imperative to note that there is a difference between raising issue of re-litigation on the basis of new views on different assumption of facts or new version and on the basis of new cause of action.
In the current case the pleading shows clearly the action was commenced in a different capacity from the previous Suit. See Ishie v. Mowanso (2000) CLR 11 CA where this court held that when an action is brought by a Plaintiff in a representative capacity against another person personally and the action is prosecuted whereby the Defendant succeeds, the Judgment in that action is res judicata to the extent that it determines the personal right of the Defendant in the subject but not res judicata in respect of any interest the Defendant may later represent in an action in a representative capacity.
The learned Trial Judge found in the previous case on page 51 as follows:
“It follows therefore that all of the documents tendered by the clamant in proof of his title to the disputed land are caught by the doctrine of lis pendens and so are void and I cannot therefore countenance any of them. The same applies to the Defendant as his receipt Exhibit ’01’ is dated 25/4/81 and is also caught by the lis pendens doctrine. He also has bought nothing as his vendor had nothing to sell”
It is indisputable from the above reproduced portion of the Judgment in the previous Suit that the claimed title was caught up with the doctrine of lis pendens and no valid title was determined. Under the third condition whether the adjudication in the previous case was by a court of competent jurisdiction. The Appellant and Respondent have not raised that point as an issue in con. Ex-facie looking at the Judgment on page 36 of the Record of Appeal, have no reason to doubt the decision was by a competent court.
The fourth condition is whether the previous decision have finally decided the Issues between the parties The Issues in the previous decision Suit No. ID/2072/98 were based on facts in support of the Reliefs sought. The Appellant relied on the Certificate of Occupancy No. 83/83/1997N of 24 August, 1997. In the current Suit as per the pleadings the Appellant has referred to a Deed of Assignment dated 2nd March, 2007 a Survey Plan dated 2nd March, 2007.
These facts arose after the Issues raised in the previous Suit were determined. Consequently, the issues cannot be the same. The ingredients of estoppel per rem judicata must be conclusively established for the plea to be sustained Having carefully perused the averments in the Statement of Claim in the present Suit and the Judgment, Suit No. ID/2072098, there is no doubt in my mind that the parties are the same, the previous Judgment was by a court of competent Jurisdiction, the subject matter that is the land is the same but the Issues are not the same and the previous Judgment did not finally determine the claim in the current Suit in view of the fact that the pleaded facts therein and documents to be relied on postdated the previous Judgment.
The Appellant averred he repurchased the same land in 2006 at that stage a new set of averred rights arose. I have no hesitation in arriving at the conclusion that the plea of res judicata cannot succeed in the circumstance. The learned Trial Judge erred in upholding the defence. There is no question of relitigating same Issue on same facts. I therefore resolve the single Issue for determination in the appeal in favour of the Appellant. There is merit in this appeal and same should succeed.
The Respondent filed a Notice of intention as reflected in the Record of Appeal and argued in his Brief. This Notice fails in view of the success of the Appeal. From the totality of the forgoing this appeal succeeds, I set aside the decision of the High Court of Justice Lagos State delivered on the 5th of February 2009 in Suit No. ID/813/2007 and I further order same Suit be remitted to the Chief Judge of High Court of Lagos State for assignment to another Judge for adjudication.
The Appellant is entitled to cost assessed at N30,000.00 against the Respondent.
RAPHAEL CHIKWE AGBO, J.C.A.: I have read before now the lead judgment just delivered by NWODO J.C.A and I adopt it as mine. It has properly articulated the issues arising therefrom and proffered the answers. I have nothing useful to add. I must however comment on the prolixity of the particulars of error contained in the notice of appeal and state that there is real danger of such prolix particulars unnecessarily confusing the respondent. Where such confusion is established, such prolix particulars will be struck out and the effect on the ground of appeal may be very unpleasant. In the instant case however, such confusion was not suggested. The ground of appeal therefore survives. This appeal succeeds. The ruling of the trial court delivered in 5/2/09 is hereby set aside. The Chief Judge of Lagos State is hereby ordered to assign the suit to another judge for hearing De novo. The respondent is condemned to N30,000.00 costs in favour of the appellant.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I was privileged to have read, before now, the lead judgment prepared and just delivered by the Hon. Justice Nwodo, J.C.A. I concur with the reasoning and conclusion reached therein, to the effect that the appeal is meritorious. Consequently, I hereby allow the appeal and set aside the ruling of the court below, dated 05/02/08, in suit No. ID/813/2007. I abide by the consequential orders remitting the said suit to the lower court for that by another judge thereof, and the N30,000.00 costs awarded to the Appellant.
Appearances
Mr. Victor OparaFor Appellant
AND
Mr. Oyesola OyewoFor Respondent
