THE EXECUTIVE GOVERNOR DELTA STATE, ASABA & ANOR v. STEVE OMOJAFOR (2011)

THE EXECUTIVE GOVERNOR DELTA STATE, ASABA & ANOR v. STEVE OMOJAFOR

(2011)LCN/4247(CA)

In The Court of Appeal of Nigeria

On Friday, the 21st day of January, 2011

CA/B/59/2003

RATIO

DOCTRINE OF ESTOPPELS: WHAT THE DOCTRINE OF ESTOPPELS ENTAILS

The doctrine of estoppel is very well known to our law of evidence and principles of civil litigation and adjudication. It seeks to re-inforce the public policy consideration and requirement that there should be an end to litigation. When a litigant is estopped from the further pursuit of a grievance or cause of action upon the application of the doctrine of estoppel, it is not a negation or denial of the constitutional provisions for unimpeded right of access to the courts and fair hearing but a re-inforcement of the public policy concern on the need that litigations must come to an end at a certain point in time. It is quite understandable, that an aggrieved litigant can continue to pursue the ventilation of a grievance or cause of action up to finality as provided in our appellate system. See IGA V. AMAKIRI (1976) II SC 1 and S.151 of the Evidence Act. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.

JUSTICES

AMIRU SANUSI Justice of The Court of Appeal of Nigeria

GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

Between

1. THE EXECUTIVE GOVERNOR DELTA STATE, ASABA
2. THE ATTORNEY-GENERAL DELTA STATE, ASABA Appellant(s)

AND

STEVE OMOJAFOR Respondent(s)

ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment).: This is an appeal the ruling of the Delta State High Court, Asaba Judicial Division, delivered by Akporido, J. in Suit No. A/M/9/2001 on 28th June, 2002. Upon an Ex-parte motion dated 26/6/2001 and brought pursuant to Order 43 rules 1, 2 (b), 2 (c) etc of the Bendel State High court civil procedure Rules 1988, applicable to Delta State High Court, the Respondent herein, as the Applicant sought for and obtained leave of the court to apply for judicial review. The substantive action for judicial review was concerned with and pertained to the following reliefs namely:
a) For an Order for judicial review for an declaration directed to the Executive Governor Delta State and Attorney-General Delta State that the Delta State Legal Notice No. 8 of 1998 which purports to charge transfer fee, charge or tax property assigned is in conflict with the Land Use Act 1990 and null, void and of no effect.
b) An Order that property at Agbor an urban area is subject to tenement rate based on value of the property and paid only to the Ika South Local Government Council.
c) Perpetual injunction restraining respondents from charging and/or collecting any transfer fee on properties assigned or otherwise.
d) A Declaration that the property of Applicant at Okwuokenye Street, Boji Boji, Agbor is not subject/entitled to any tax, fees charges whatsoever other than Ika South Local Government Council tenement rate.
e) An Order of Injunction restraining the Respondents by themselves, their agents, servants or otherwise howsoever called from leaving any tax, levy, charges fees or payment howsoever or whatsoever called.
f) A Declaration that the Respondents are not competent to promulgate Delta State Legal Notice No. 8 of 1998 which purport to charge transfer fee or tax on property assigned.
The grounds for these reliefs were also set out as follows: –
1) That the promulgation Delta State Legal Notice No.8 of 1998 which purports to charge transfer fee, charge or tax on property assigned is in conflict with the Land Use Act 1990 and is null, void and of no effect.
2) That the property at Agbor an urban area is only subject to tenement rate payable to Ika South Local Government Council.

The Order for leave and the processes in the substantive action were duly served on the Respondents, the appellants herein. The Respondents/Appellants sought to challenge the competence of the Local action filed by the Applicant/Respondent in a motion on notice dated 2/19/2001 brought pursuant to the inherent jurisdiction of the lower court. The motion sought for an order striking out or dismissing the action for judicial review for the following grounds: –
1) That the action was brought more that 3 months after the accrual of the cause of action against the Respondents/Appellants in contravention of S.2 (a) of the Public Officers Protection Law Cap 137 Laws of Bendel State applicable to delta State of Nigeria; and
2) That the act of the Respondent/Appellants complained of was not a judicial act and neither were the Respondent/Appellants expected to act judiciously and therefore the action not being properly constituted under Order 43 (supra).
This application of the Appellants was supported by an affidavit of 9 paragraphs deposed by Mr. Adigwe, a Legal Practitioner in the Delta State Ministry of Justice, Asaba. The Respondent replied with a 4 paragraph Counter-affidavit dated 7th March, 2002. Paragraph 3 of this Counter-affidavit introduced and incorporated Exhibit A which is the ruling of the Delta State High court, Agbor Division, delivered by Diai. J. on 21/07/2000 in Suit No.AG/19/99.

Issues now having been duly joined, the motion to strike out or dismiss Suit No.A/M/9/2001 was set down for hearing. At the end of the arguments and submissions of respective learned Counsel on 3/6/2002, the lower Court reserved its ruling. In its ruling of 28/06/2002, the lower Court observed, remarked and held as follows:-
“…… It is idle to argue as the Learned Assistant Chief Legal Officer has done, that the Court has not finally decided the issue of Public Officers Protection Law as it relates to the challenge to the validity of the Delta State Legal Notice No. 8 of 1998.
The next question to be examined is whether the present suit is a challenge to the validity of the said Legal Notice. The answer is simple. A look at the reliefs sought by the applicant in this suit reproduced above, shows that the applicant/respondent among other declaratory and injunctive reliefs is challenging the validity of the said Legal Notice No. 8 of 1998, promulgated by the Delta State Government. That being so, can this Honourable Court entertain the issue of the Public Officers Protection Law as it relates to the reliefs of the Applicant/Respondent? I am allowed to review or sit on appeal over that ruling.

The issue of Public Officers Protection Law as it affects the challenge to the validity of the Delta State Legal Notice No. 8 of 1998, having been finally decided by the High Court of Justice Agbor, in the same matter between the same parties herein the applicants are estopped from raising that issue all over again. Since the applicant has failed to appeal against that ruling the issue has been finally determined, by the Court in the previous suit.
In the circumstances this application must fail. It is hereby dismissed.”
The appellants were dissatisfied with this ruling and appealed to this Court in a notice of appeal dated 8/7/2002 and containing 4 grounds of appeal. The grounds and their particulars are as follows: –
GROUNDS OF APPEAL
1. The Learned trial judge erred in law in holding that the appellant were estopped by the decision of Hon. Justice T.O. Diai in Suit No. AG/19/99 from raising the issue that the case was statute barred having being commenced after 3 months against the appellants who are public offices.
PARTICULARS OF ERROR
i. The Decision of Hon. Justice T.O. Diai in Suit No.AG/19/99 Exhibit A in the Counter affidavit of the respondents) to the effect that respondents can bring a separate action to challenge the validity of Delta State Legal Notice No. 8 of 1998 is merely an orbiter dictum or at best a judicial dictum.
ii. The ratio decidendi of the Decision of Hon. Justice T. O. Diai in Suit No. Act 1999 upheld the submission of the appellant that the action was statute barred having been commenced against the appellants who are public officers in accordance with the provisions of the Public Officers Protection Law.
2. The Learned trial Judge erred in law when it held that challenging the validity of an edict was not one of those matters covered by section 2 (a) of the Public Officers Protection Law Cap 137 Laws of Bendel State as is applicable to Delta State.
PARTICULARS OF ERROR
Section 2(a) of the Public Officers Protection Law Cap. 137 Laws of Bendel State as applicable to Delta State of Nigeria covers the actions of Public Officers done in the pursuance or execution or intended execution of any law or any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority. It therefore covers an action brought against a Public Officer challenging the validity of an edict which he promulgates.
3. The learned trial Judge erred in law when he held that the respondents have applied only for a declaration to challenge the validity of Edict No. 8 of 1998 in the suit before it in accordance with the decision of Hon. T.O. Diai in Suit No. A.G/19/99 concerning same parties.
PARTICULARS OF ERROR
The case of the respondent before Justice Akporido prayed also for orders apart from declarations and so went over and above what Justice T.O. Diai permitted in Suit No. A.G/19/99.
Against these grounds, the appellants formulated 3 issues to argue this appeal in an undated brief of argument filed on 21/08/2003 but deemed to have been properly filed and served on 11/02/04.
The issues are: –
1) Whether the Appellant was estopped from raising the issue of the case being statute barred under the Public Officer’s Protection Law at the High Court, Asaba in view of the earlier decision of Diai J. at the Agbor High Court in Suit No.Ag/19/99.
2) Whether challenging the validity of an Edict is one of those matters covered by Section 2 (a) of the Public Officers Protection law.
3) Whether the Respondents applied only for a declaration to challenge the validity of Edict No. 8 of 1988 in accordance with the decision of Honourable T. O. Diai in Suit No. AG/19/99 or they went over and above what was allowed in that Suit.

In his own response to the brief of the Appellants, learned Counsel to the Respondent filed a brief of argument dated 7/03/2004 wherein he formulated and argued 2 issues. They are thus: –
1) Whether the trial Court was right in holding that issue estoppel is applicable to this matter.
2) Whether challenging the validity of the Edict/Law is caught by Section 2(a) of the Public Officers protection law CAP 137 of Bendel State applicable to Delta State.
In arguing his issue No. 1, learned Counsel to the appellants began with an assertion that the appellants were entitled to raise the issue of limitation of time under S.2 (a) of the Public Officers protection Law (supra) notwithstanding the ruling of Diai, J. in Suit No. AG/19/99. He then went on to explain that for the principle of estoppel to apply in any given situation the issue involved in a latter trial ought to have been fully determined with certainty in an earlier action. He supported this explanation with the case of IKENI V. EFAMO (2001) 87 LRCN 1960.
In another explanation, learned Counsel tried to distinguish the circumstances in Suit No. AG/19/99, which was struck out for being out of time against the instant matter in Suit No. A/M/9/2001. Upon this explanation and suggestion, learned Counsel to the Appellants argued that the comments of the learned trial Judge in Suit No. AG/19/99 that the validity of an Edict could be challenged in a separate action was an obiter dictum because despite that comment and observation the action was nonetheless struck out. He described an obiter dictum as a statement or comment by a Court which, however does not form an essential part of the main decision. He relied on the case of ONAGORUWA V. THE STATE (1993) 7 NWLR (PT.303) 49 at 100D as well as Page 465 of the 7th Edition of Blacks Law Dictionary. While contrasting obiter dictum with ratio decidendi, learned Counsel identified the ratio in AG/19/99 to only involve the decision that the action was statute-barred in view of the provisions of S.2(a) of the Public Officers protection Law (supra).
In conclusion learned Counsel argued that since Suit No.AG/19/99 was struck out including the declaratory reliefs, the Respondent cannot maintain a fresh action challenging the validity of the Edict. He then, upon this premise, urged this Court to hold that the Appellants are not estopped from raising the issue of limitation of time under the provisions of S.2 (a) of the Public Officers Protection Law (supra) as a result of the decision in Suit No. AG/19/99 against the facts and circumstances of the action in Suit No. A/M/19/2001. He also urged this Court to resolve issue No. 1 in favour of the appellants.

In his response, learned Counsel to the Respondent also argued the issue of estoppel in his issue No. 1. As a background, learned Counsel explained that Suit No.AG/19/99 was struck out on 21/07/2000 after certain issues were fully canvassed and argued. He then identified one of such issues as the competence of the action in view of the Provisions of S.2(a) of the Public Officers Protection Law (supra). Learned Counsel pointed out that neither the Appellants nor the Respondent appealed against any of the findings- and/or the whole decision in the ruling in Suit No. AG/19/99. With this as a springboard, learned Counsel maintained that the issue of limitation of time cannot be relitigated by these parties in any subsequent proceedings as it subsists as an issue estoppel. He relied on the decision in OGBOGU v. NDIRIBE (1992) 6 NWLR (PT.245) 43.
After having laid down the above foundation, learned counsel went further to explain that there are 2 kinds of estoppel by record known to law and according to learned Counsel they are cause of action estoppel and issue estoppel. In addition to this, he went on to set out the conditions necessary to ground a valid plea of estoppel and these are:-
a) The question or decision in the Suit must be final;
b) The decision relied upon to support the plea must be final; and
c) The parties must be the same.
Learned Counsel referred to some decided cases to support his argument that the circumstances and the facts of this case are such that the principle of estoppel ought to apply to deny the appellants the right to raise and argue the issue of limitation of time in Suit No.AG/9/2001 against the ruling in Suit No. AG/19/99. Learned Counsel strongly relied on the decision in the English case of HOLYSTEAD V. COMMISSIONER OF TAXATION (1926) AC 155 as per Lord shaw at 170 where it was held that if any Court of competent jurisdiction reached a decision in a matter none of the parties thereto shall be allowed to question such a decision in a new legal proceedings.
While focusing on the decision of the lower Court in Suit No.A/M/9/99 as per Akporido, J. learned Counsel pointed out that the decision was anchored on the observation of Diai, J. in AG/19/99 that the reliefs challenging the validity of the Edict were not in any way affected by S.2(a) of the Public Officers Protection Law (supra) and same reliefs could be pursued in a separate suit.

According to learned Counsel any aggrieved person can challenge the whole of any particular law or any of its provisions in a Court of competent jurisdiction without any time limitation and no matter the age of the law. He added further that the Respondent did no wrong by challenging Delta State Legal Notice No. 8 of 1998 in the year 2001 vide Suit No. A/M/9/2001. He urged the Court to hold that this appeal is an abuse of process of this Court and proceed to dismiss same for being unmeritorious.

I have carefully considered and weighed the foregoing arguments and submissions of respective learned Counsel. I have also focused on the 2 respective rulings of the Delta State High Court in issue in this appeal as referred to from time to time earlier in this judgment. In my view what appeared to have triggered and culminated the circumstances leading to this appeal can be traced to the findings of Diai, J. in his ruling of 21/07/2000.
Here, I am referring to the decision now contained at page 37 of the record of appear where the learned Judge Diai, J. heard that all the 3 Defendants were public officers within the meaning of S.2(a) of the Public Officers protection Law (supra). Furthermore, the Court held that since the Plaintiff/Respondent/Respondent did nor commence Suit No.AG/19/99 within 3 months from 19/4/99 it could not be maintained against the Appellant herein for being statute-barred. Also, the court decided that challenging the validity of an enactment/Edict was nor within the purview of the provisions of S. 2(a) of the public officers Protection Law (supra).
Having so decided His Lordship Diai, J. found himself in a dilemma as he contemplated on the appropriate order to make in the circumstance. He however ended his ruling as follows:
“It is the entire proceedings, action or prosecution that is statute-barred and not the reliefs or claims rising from such proceedings.
It is my view therefore, that in so far as the Plaintiff did not institute this action within 3 months next after the cause of action arose, the suit is statute-barred and I so hold. The Court is of the further view that though the validity of the Edict could be challenged, it ought to be done in a separate suit.
Having so said, the suit ought to be struck out and is hereby struck out accordingly.”
(See lines 4-15 at page 38 of record of appeal).
It was the endeavour of Diai, J. in distinguishing Suit AG/19/99 simpliciter and the reliefs contained therein that gave birth to Suit A/M/9/2001. In his ruling of 28/6/2002, Akporido, J. rightfully, in my view, gave full consideration and copiously referred to and quoted from the ruling of Diai, J.
There is no doubt at all that the findings of Diai, J. are very explicit and clear that the Appellants are Public Officers within the contemplation of S.2 (a) of the Public Officers Protection Law. In my view there is nothing wrong with this finding as it is properly anchored on the Supreme Court decision in IBRAHIM V. JSC (1993) 64 LRCN 5044. This much has been conceded by all the parties herein as none of them appealed against that decision. With this as a foundation, Diai, J. went further to hold that the entire proceedings in Suit No. AG/19/99 ought to abate for having been brought against Public Officers outside the period allowed by law and proceeded to strike out same for being statute-barred and incompetent. Also, none of the parties challenged this decision by way of an appeal. Moving to the next level, Diai, J. found that it was the entire proceedings in suit No. AG/19/99 that were statute-barred and not the reliefs or claims arising from the proceedings. There is also no appeal against this very crucial finding.
Without any doubt therefore the findings of the lower court as per Diai, I have remained those made by a court of competent jurisdiction and fury and absolutely binding on the parties. This appeal is not at all about the appropriateness or otherwise of those findings. This appeal is about the ruling of Akporido, J. in suit No. A/M/9/2001 wherein the findings of Diai, J. were put in focus in the light of the reliefs in Suit No. A/M/9/2001.

The remark by Diai, J. that the validity of Delta State Legal Notice No. 8 of 1998 could be challenged in a separate suit was a very serious one and should be taken as such. I do not see anything wrong in the Respondent availing himself of its benefit. Now, having considered all the main and collateral circumstances leading to the ruling of Akporido, J. now on appeal, and all the observations and findings therein, I am unable to see any merit at all in the arguments and submissions of learned counsel to the Appellants. It is a shear exercise in futility for the appellants to continue to have second bites at the cherry when it would not serve any useful purpose. I therefore agree with learned counsel to the respondent that to the extent that there had been no appeal against the ruling of Diai, J., the issue of limitation of time has been fully determined by a court of competent jurisdiction and cannot therefore be canvassed and arsued in Suit No.A/M/9/2001.

Also because issues 2 and 3 had, in my view, been fully decided in Suit No. AG/19/99 and also for the foregoing reasons, I do not see any compelling reasons to go into them in the circumstances of this appeal. The only issue having been considered and resolved against the appellants in this appeal is hereby dismissed for being devoid of any merit. No order for costs.
This appeal was heard on 21/10/2010 and judgment is being delivered today 21/01/2011, a day or two outside the 90 days provided by the 1999 Constitution of the Federal Republic of Nigeria.
What led to this was because of my recent transfer out of this Division of the Court and a slight administrative mix-up in the issuance of Hearings Notices to Counsel.
Instead of 18th January, 2011 hearing notice was erroneously issued against 21/01/2011. We are however fully satisfied slight delay had not occasioned any prejudice or justice to any of the parties herein.

AMIRU SANUSI, J.C.A.: I had a preview of the judgment prepared by my noble Lord, Gumel, JCA, just rendered.
All the salient issues raised and canvassed by learned counsel to the parties have been duty and adequately addressed in the leading judgment. I am in entire agreement with the reasoning and conclusion arrived at therein. I also adjudge the appeal meritless hence it must therefore fail. I accordingly dismiss it.

GEORGE OLADEINDE SHOREMI, J.C.A.: I have read the judgment of my learned brother Gumel JCA. I agree entirely with the consideration of the case and his conclusion therein I also agree that the doctrine of estoppel is very well known in our law of evidence and principle of civil litigation and adjudication when a party pleads judgment as estoppel what he is saying in essence is that the court should take the judgment into consideration in considering the totality of his case before the court. See IKOTUN V. OYEKANMI (2008) 10 NWLR (Pt 1094) 100 Page 117 Paras G-H.
For more detailed consideration in the lead judgment I agree that this appeal ought to be dismissed and it is hereby dismissed for lacking in merit.

Appearances

Chief V. E. Otomiewo, Hon. Attorney-General and Commissioner for Justice, Delta State, with Mr. C.O. Agbagu, Assist. Chief State Counsel and Mr. C. Umukoro Senior State Counsel Delta State Ministry of Justice, AsabaFor Appellant

AND

Mr. A.C. OluijiFor Respondent