OILSERV LIMITED V. GLOBAL GAS AND REFINING LIMITED
(2013)LCN/6268(CA)
In The Court of Appeal of Nigeria
On Thursday, the 6th day of June, 2013
CA/PH/169/2010
RATIO
WHETHER THE SAME PARTIES MAY RE-OPEN THE SAME SUBJECT MATTER OF LITIGATION IN RESPECT OF THE SAME MATTER WHICH OUGHT TO HAVE BEEN FORWARD BUT WAS NOT BROUGHT BECAUSE THEY OMITTED PART OF THEIR CASE
The principle of law is that where a given matter becomes the subject of litigation and of adjudication before a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case. It will not permit the same parties to re-open the same subject matter of litigation in respect of the same matter which ought to have been brought forward as part of the subject in contract but which was not brought forward only because they have by inadvertence or deliberately omitted part of their case.
Thus, Estoppel as a defence is to ensure that a litigation which has been prosecuted to conclusion cannot be resuscitated. The rationale behind this is to ensure that there is an end to litigation. The claim in PHC/98/2008: Oilserv Ltd v. Global Gas & Refining Ltd was in respect of the same parties, same issues and on the same subject matter which was owed by the Respondent for contract executed by the Appellant for the Respondent in March, 2003.PER MODUPE FASANMI, J.C.A.
INGREDIENTS TO BE PROVEN FOR A CASE TO QUALIFY AS ESTOPPELS PER REM JUDICATA
Generally speaking, several issues may be raised within one cause of action which is necessary for the determination of the whole case. In order for a case to qualify as estoppels per rem judicata, the party relying on it must establish the followings:
(1) That the parties or their privies in both the earlier case and the case in which it is raised are the same.
(2) That the judgment relied upon is valid, subsisting and final.
(3) That the claim or issue in dispute in the proceedings is the same.
(4) That the subject matter of the litigation in both cases is the same.
(5) That the court that decided the previous suit is a court of competent jurisdiction.
All the foregoing requirements of the doctrine must be fully established before the plea can be sustained. See Alase v. Olorii-Ilu (1965) N.M.L.R. page 66, Iga v. Amakiri (1976) II S.C. page 1, Fadiora v. Gbadebo (1978) 3 S.C. 219, Oke v. Atoloye (1985) 2 N.W.L.R. Part 9 page 578, Omnnia (Nig.) Ltd. v. Dyktrade Ltd. (2007) 15 N.W.L.R. Part 1058 page 576 at 609 – 610 paras F – C and 624 paras F – G and Abiola & Sons. Bottling Company Ltd. v. 7up Bottling Co. Ltd. (2012) 15 N.W.L.R. Part 1322 page 184 at 196 – 197 paras C – A.PER MODUPE FASANMI, J.C.A.
JUSTICES
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
C.E. NWOSU-IHEME Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
OILSERV LIMITED Appellant(s)
AND
GLOBAL GAS AND REFINING LIMITED Respondent(s)
MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Rivers State High Court of Justice, Port Harcourt Judicial Division delivered on the 22nd of May 2009 wherein the suit no. PHC/824/2008 was dismissed.
By an application filed on the 19th of September 2008, the Respondent at page 39 of the record sought an order of the lower court to dismiss the suit for want of jurisdiction on the ground that the suit is caught by the doctrine of estoppel per rem judicata.
In support of the application, Respondent filed an affidavit of ten paragraphs. The facts deposed therein, are to the effect that, the Appellant had in PHC/98/2008 between Oilserv Limited v. Global Gas and Refining Limited, prosecuted the Respondent in respect of the subject matter of this litigation and did obtain judgment against the Respondent in PHC/98/2008 before Diepiri J. The Respondent averred that they had even paid the judgment debt in PHC/98/2008 to the Appellant. The Respondent annexed to the affidavit a certified true copy of the judgment of the court and other processes filed in suit no. PHC/98/2008: Oilserv Ltd v. Global Gas & Refining Ltd by the Appellant.
The Appellant in opposing the application, filed a counter-affidavit of eleven paragraphs on the 23rd September 2008. The facts of the counter affidavit evidence are to the effect that suit no. PHC/98/2008 between Oilserv Ltd v. Global Gas and Refining Limited is not the same with this suit. That in suit no. PHC/98/2008, the Appellant sued for the sum of $385,755.77 being the sum admitted by the Respondent while this suit is for the sum of $1,571,859.54 being the disputed sum the Respondent owed the Appellant.
The learned trial judge in a considered ruling was of the opinion that the Appellant is caught by the doctrine of estoppels per rem judicata and he is estopped from litigating any claim against the Respondent having gotten judgment in PHC/98/2008: between Oilserv Ltd v. Global Gas & Refining Limited in respect of the of the year 2003 agreement. The learned trial Judge thereafter dismissed the suit. Dissatisfied with the ruling, Appellant appealed to this Court on the 26th May 2009.
In compliance with the rules of this Court, Appellant’s brief of argument was filed on the 3rd of May 2010. It was deemed properly filed and served on the 7th of Dec. 2010 pursuant to an order of this Court granted on 7th Dec. 2010. By an order of this Court granted on the 6th of Nov. 2012, Respondent’s brief of argument was deemed properly filed and served same day i.e. 6th Nov. 2012. Appellant distilled a sole issue for determination from the sole ground of appeal. The sole issue goes thus:
“Whether the issues raised in suit no. PHC/98/2008 are one and the same as the issues raised in suit no. PHC/824/2008 such as to give rise to a valid and sustainable pleas of rem judicata and/or issue estoppel.”
Learned counsel for the Respondent distilled a sole issue for determination thus:
“Whether from the facts of the case, the trial Judge was right to have held that the suit was caught up by the doctrine of estoppels per rem judicata.”
The issue distilled by the Respondent appeared succinct and apt to the determination of the appeal on ground. The appeal will therefore be determined on the sole issue distilled by the Respondent which states:
“Whether from the facts of the case, the trial Judge was right to have held that the suit was caught up by the doctrine of estoppel per rem judicata.”
Learned counsel for the Appellant submitted that the issues in dispute in suit no. PHC/98/2008 and issues in this suit are not the same. He contended that the issue in suit no PHC/98/2008 is the sum $385,755.77 admitted by the Respondent out of the indebtedness of the sum of $1,957,606,31 being claimed by the Appellant. He submitted further that the issue in this suit is the sum of $1,571,859,54 being debt owed by the Respondent to the Appellant which the Appellant is disputing.
Learned counsel for the Appellant submitted further that the finding of the learned trial Judge is erroneous became Appellant pleaded in paragraph 15 of her statement of claim in suit no. PHC/824/2008 that the sum of $385,755.76 is part of various Appellant’s claims relating to the completed milestone. This fact pleaded by the Appellant was copiously admitted by the Respondent vide paragraph 2 of Respondent’s statement of defence.
Learned counsel for the Appellant referred to plethora of decided cases when issue estoppel per rem judicata can operate and succeed. He referred to the cases of Omiyale v. Macauley (2009) 7 N.W.L.R Part 1141 page 597, Omnia Nig. Ltd v, Dyktrade Ltd (2007) 15 N.W.L.R Part 1058 page 576 and Oloruntoba-Oju v. Abdul-Raheem (2009) 13 N.W.L.R. Part 1157 page 83 paragraph B-E. He submitted further that the findings of the learned trial Judge which necessitated the trial Court to decline jurisdiction and dismiss the suit at the Court below is perverse and cannot be sustained considering the contents of the Appellant’s Statement of Claim, Respondent’s Statement of Defence in suit no. PHC/824/2008. He urged the Court to allow the appeal and set aside the ruling of the Lower Court delivered on 22nd of May 2009.
Learned counsel for the Respondent submitted that the learned trial Judge was right when he held that the suit was caught by the doctrine of estoppel per rem judicata. Learned counsel referred to the factors that should be present before a court can hold that a matter was caught by the doctrine of estoppel per rem judicata. The factors are:
(1) That the parties or their privies in both earlier and instant case are the same.
(2) That the judgment relied upon is valid, subsisting and final.
(3) That the claim or issue in dispute in the proceedings are the same.
(4) That the subject matter of the litigation in both cases is the same.
(5) That the court that decided the previous suit is a court of competent jurisdiction.
He cited the case of Omnia Nig. Ltd v. Dyktrade Ltd (2007) All F.W.L.R Part 394 at 225 to 226 paras H-A.
He submitted that the parties in both suits i.e. PHC/98/2008 and PHC/824/2008 are the same. He submitted further that the judgment in PHC/98/2008 is valid, subsisting and final. Submitted that he would argue the factors of claim and subject matter jointly as they are related. He urged the court to compare the Statement of Claim in PHC/824/2008 with the undefended list affidavit in PHC/98/2008. He contended that a careful perusal of these documents clearly shows that in both cases there is only one subject matter which is the amount owed the Appellant by the Respondent over the year 2003 contract between the parties.
He contended further that nowhere in PHC/98/2008 did the Appellant state that the said sum of $385,755.76 is a part payment of the total sum owed. Rather it claimed the amount as the sum owed for the year 2003 contract.
He submitted further that the claim or issue in dispute is the same. If the Appellant had wanted to claim the sum of $385.755.76 as part payment of the total amount owed, it would have so stated in PHC/98/2008. Learned counsel for the Respondent submitted that paragraph 2 of the Respondent’s Statement of Defence cannot be read in isolation of the entire Statement of Defence. Submitted that the judgment obtained by the Appellant in PHC/98/2008 on 16/04/2008 was in full and final payment of the sum due to the Appellant in respect of the year 2003 contract. Learned counsel for the Respondent urged the Court to resolve the sole issue in favour of the Respondent and dismiss the appeal as lacking merit.
Generally speaking, several issues may be raised within one cause of action which is necessary for the determination of the whole case. In order for a case to qualify as estoppels per rem judicata, the party relying on it must establish the followings:
(1) That the parties or their privies in both the earlier case and the case in which it is raised are the same.
(2) That the judgment relied upon is valid, subsisting and final.
(3) That the claim or issue in dispute in the proceedings is the same.
(4) That the subject matter of the litigation in both cases is the same.
(5) That the court that decided the previous suit is a court of competent jurisdiction.
All the foregoing requirements of the doctrine must be fully established before the plea can be sustained. See Alase v. Olorii-Ilu (1965) N.M.L.R. page 66, Iga v. Amakiri (1976) II S.C. page 1, Fadiora v. Gbadebo (1978) 3 S.C. 219, Oke v. Atoloye (1985) 2 N.W.L.R. Part 9 page 578, Omnnia (Nig.) Ltd. v. Dyktrade Ltd. (2007) 15 N.W.L.R. Part 1058 page 576 at 609 – 610 paras F – C and 624 paras F – G and Abiola & Sons. Bottling Company Ltd. v. 7up Bottling Co. Ltd. (2012) 15 N.W.L.R. Part 1322 page 184 at 196 – 197 paras C – A.
To determine whether the facts in issue and subject matter in the instant case are the same with suit no. PHC/98/2008, this Court will critically examine the facts pleaded in suit no. PHC/98/2008 Oilserv Ltd v. Global Gas & Refining Ltd and the documents the Appellant relied upon whereby the Court gave judgment in its favour in PHC/98/2008: Oilserv Ltd v. Global Gas & Refining Ltd.
At page 27 of the record of appeal, Appellant claimed thus:
“(1) Claimant hereby claims the sum of $385,755.77 (Three Hundred and Eighty-Five Thousand, Seven Hundred and Fifty-Five Dollars and Seventy-Six cents) only or its naira equivalent at the prevailing exchange rate being the sum of money owed by the Defendant to the Claimant as a result of the contract made between the Claimant and the Defendant within the year 2003.
(2) The Claimant further claims 10% interest on the said outstanding sum from the date of the judgment until the total sum is liquidated.”
The Appellant’s averments in the supporting affidavit to Suit No. PHC/98/2008: Oilserv Ltd v. Global Gas & Refining Ltd., at paragraphs 4, 5, 6, 7, 8, 9, and 10 are reproduced hereunder as follows: :
“4. That claimant and defendant entered into pipeline contract in Port, within the month of March 2003, within the jurisdiction of this Honourable Court, the said claimant duly executed the said contract.
5. That after due execution of the said contract which was duly acknowledged by the defendant, claimant wrote defendant requesting for the payment of the agreed contract sum by the defendant. Claimant’s letter dated 12th August, 2005 addressed to the defendant, is hereby exhibited and marked Exhibit ‘A’.
6. That as a result of the due execution of the said contract, by the claimant, defendant wrote to the claimant acknowledging indebtedness of the sum of $385.755.76 (Three Hundred and Eighty-Five Thousand, Seven Hundred and Fifty-Five Dollars and Seventy-Six Cents to the claimant.
7. That the defendant’s letter erroneously dated 23rd August, 2004 instead of 2005, duly signed by the defendant’s Managing Director acknowledging owing claimant the said sum is hereby exhibited and marked Exhibit ‘B’.
8. The claimant has been patiently waiting for the payment of the said sum of $385,755.76 (Three Hundred and Eighty-Five Thousand, Seven Hundred and Fifty-Five Dollars, and Seventy-Six Cents) or its Naira equivalent at the prevailing exchange rate from the defendant, which is the sum acknowledged by the defendant vide Exhibit ‘B’, erroneously dated 23rd August, 2004 and duly signed by the defendant’s Managing Director, but the defendant has persistently refused or neglected to pay the said outstanding sum to the claimant.
9. The defendant is indebted to the claimant to the sum of $385,755.76 (Three Hundred and Eighty-Five
Thousand, Seven Hundred and Fifty-Five Dollars, and Seventy-Six Cents) or its Naira equivalent at the prevailing exchange rate.
10. That the claimant hereby claims the sum of $385,755.76 (Three Hundred and Eight-Five Thousand, Seven Hundred and Fifty-Five Dollars, and Seventy-Six Cents) or its Naira equivalent at the prevailing exchange rate from the defendant as well as 10% interest from the date of judgment until total sum is liquidated.
By exhibit ‘A’ dated 12th of August 2005, the total sum demanded by the claimant i.e. Appellant as outstanding debt was $1,957,606.31. By exhibit ‘B’ the Respondent did not admit owing $1,957,606.31 but accepted liability for $385,755.76 as the total debt. The last Paragraph of Exhibit ‘B’ states:
“In conclusion we accept a liability of final settlement in the sum $385,755. 76 only as arrived at in the attached reconciliation statement”.
The judgment order states of B.G. Diepiri J. of 16th April, 2008 states:
“It is ordered that judgment be and is hereby entered in favour of the Claimant against the Defendant in the sum of $385,755.76 (Three Hundred and Eight-Five Thousand, Seven Hundred and Fifty-Five Dollars, Seventy-Six Cents) only or its Naira equivalent at the prevailing exchange rate, being the sum of money owed by the Defendant to the Claimant as a result of the contract made between the claimant and the defendant within the year 2003”.
Appellant filed suit no. PHC/98/2008: Oilserv Ltd v. Global Gas & Refining Ltd after the Respondent wrote Exhibit B denying owing the sum of $1,957,606.31 claimed by the Appellant wherein the Respondent categorically stated their liability to the Appellant was only for the sum of $385,755.76. Exhibit B was the final correspondence between the parties before the claimant instituted Suit no. PHC/98/2008 and got judgment for $385,755.76.
From the contents of exhibit ‘GG1’ the only claim in suit no. PHC/98/2008 and paragraphs 7, 8 and 9 of the supporting affidavit clearly infer that the Appellant was very explicit that the claim was based on $385,755.76 as outstanding indebtedness by the Respondent. The learned trial Judge rightly held that the Appellant accepted the sum of $385,755.76 as the amount the Respondent was owing him for which he filed PHC/98/2008 and got judgment. Appellant never disclosed both in his writ or the affidavit in support of the claim in suit no. PHC/98/2008 that the sum of $385,755.76 was only a fraction or part of a total sum of $1,957,606.31 he wanted to claim therein or in anther suit with respect to the same 2003 contract.
Can the Appellant after obtaining judgment for the sum of $385,755.76 cents against the Respondent institute another cause of action in respect of the same year 2003 contract on the same set of facts obtain another judgment from the court? The answer is no because the facts in issue as constituting Estoppel per rem judicata is properly resolved. The doctrine of Estoppel rem judicata is based upon two theories. Firstly the general interest of the community is the termination of disputes and secondly the right of the individual to be protected from vexatious multiplication of suits. The principle significantly aims at avoiding or preventing duplicity, multiplicity, or proliferation of litigation which arguably tends to bastardize the adjudication process vis-a-vis the administration of justice system as a whole. See Abubakar v. B.O. & A.P. Ltd (2007) 18 N.W.L.R Part 1066 page 319 and Margi v. Yusuf (2009) 17 N.W.L.R. Part 1169 page 162 at 191 paras C-E.
In the instant case, Appellant is estopped from saying that there is outstanding balance more so that his claim in suit no PHC/98/2008: Oilserv v. Global Gas & Refining Ltd was for the sum of money the Respondent admitted that they were liable for Respondent clearly notified the Appellant in Exhibit B that its total indebtedness was for the sum of $385,755.76 and not $1,957,606.31 as claimed in Exhibit A, the demand letter for payment in suit no. PHC/98/2008: Oilserv Ltd v. Global Gas & Refining Ltd. Appellant persuaded the Court to grant the relief sought in PHC/98/2008: Oilserv Ltd v. Global Gas & Refining; Ltd for the sum of $385,755.76 as the total indebtedness of the Respondent and they got judgment as per their claim. Appellant ought to have in the same PHC/98/2008 claimed for two reliefs; one which could have been for the admitted sum of $385,755.76 and the other relief as an outstanding balance of $1,571,850.00 if that was their sincere intention, to avoid litigating the same suit in piece meal in respect of the same parties and the same set of facts giving rise to the cause of action on the same subject matter.
The principle of law is that where a given matter becomes the subject of litigation and of adjudication before a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case. It will not permit the same parties to re-open the same subject matter of litigation in respect of the same matter which ought to have been brought forward as part of the subject in contract but which was not brought forward only because they have by inadvertence or deliberately omitted part of their case.
Thus, Estoppel as a defence is to ensure that a litigation which has been prosecuted to conclusion cannot be resuscitated. The rationale behind this is to ensure that there is an end to litigation. The claim in PHC/98/2008: Oilserv Ltd v. Global Gas & Refining Ltd was in respect of the same parties, same issues and on the same subject matter which was owed by the Respondent for contract executed by the Appellant for the Respondent in March, 2003. Having taken the benefit of the judgment in suit no. PHC/98/2008: Oilserv. Ltd v. Global Gas & Refining Ltd. for the sum claimed, Appellant cannot be allowed to re-litigate this suit claiming the sum of $1,571,850.54 as debt in respect of the same contract that was executed in March, 2003 in this suit.
The doctrine of Estoppel does not allow the Appellant to litigate their claim piece meal; there must be an end to litigation.
Appellant is also estopped by conduct having accepted the sum of $385,755.76 as total indebtedness in suit no. PHC/98/2008; Oilserv. Ltd. v. Global Gas & Refining Ltd. for the sum claimed. He cannot turn round to re-litigate the claim of $1,571,850.54. He is estopped under Section 151 of the Evidence Act 1990, Laws of the Federation of Nigeria which states that:
“When one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such persons or such representative in interest to deny the truth of that thing.”
Appellant who deliberately omitted to put forward his entire claim in PHC/98/2008; Oilserv. Ltd. v. Global Gas & Refining Ltd. will not be allowed to split the cause of action into two or more and litigate same as second part in respect of the same subject matter on the same issue.
The findings of the learned trial Judge are not perverse. They are based on the evidence before the Court. Appellant has failed to show that there was a basis for interfering with the findings of the lower court. See Balogun v. Labiran (1988) 3 N.W.L.R. Part 80 page 66, Anaeze v. Anyaso (1993) 5 N.W.L.R. Part 291 page 1, Seatrade G.B. v. Awolaja (2002) 4 N.W.L.R. Part 758 page 520 and Resin v. Adebayo (2012) 15 N.W.L.R. Part 1322 page 125 at 142 paras C – D.
The finding of the lower court was based on credible evidence before the trial court. In the circumstance, this Court cannot interfere or disturb the ruling based on the said finding of fact. The sole issue is hereby resolved against the Appellant.
Finally the appeal lacks merit and it is hereby dismissed. The ruling of the lower court delivered on the 22nd of May, 2009 is hereby affirmed. Cost of N30,000.00 is hereby awarded against the Appellant and in favour of the Respondent.
M.L. TSAMIYA, J.C.A.: I have had the advantage of reading in draft, the judgment of my learned brother, MODUPE FASANMI, J.C.A., which has just been read. I am in entire agreement with his reasons and conclusions and for the reasons stated in the said judgment, I also dismiss the appeal and affirm the Ruling of the trial court made on the 22nd of May 2009 dismissing Suit No. PHC/824/2008. Costs of N30,000.00 is hereby awarded to the respondent.
CHIOMA E. NWOSU-IHEME (Ph.D), J.C.A.: My learned brother, MODUPE FASANMI, JCA had before now availed me in draft form the judgment delivered. I have nothing further to add to the judgment. I am in agreement with, and I hereby adopt, the judgment including all the consequential orders therein.
Appearances
Frank A. Chukuka, with D. OnyemaFor Appellant
AND
Martins AchuonyeFor Respondent
