CHRISTOPHER CHIBUZOR UMEANIA v. UNIVERSITY OF UYO & ORS (2013)

CHRISTOPHER CHIBUZOR UMEANIA v. UNIVERSITY OF UYO & ORS

(2013)LCN/6564(CA)

In The Court of Appeal of Nigeria

On Monday, the 2nd day of December, 2013

CA/C/139/2013

RATIO

WHEN ESTOPPEL OF RECORD ARISES

Estoppel per rem judicatam or estoppels of record arises where an issue of fact has been judicially determined in a final manner between parties by a court or tribunal having jurisdiction, concurrent or exclusive in the matter and the same issue comes directly in question in subsequent proceedings between the parties or their privies. Thus, the parties affected are stopped from bringing a fresh action before any court on the same case and on the same issue already pronounced upon by the court in a previous action.

Osunrinde v. Ajamogun (1992) 6 NWLR (Pt. 246) 156 SC,

Igwego v. Ezeugo (1992) 6 NWLR (Pt. 249) 561 SC,

Dokubo v. Omoni (1999) 8 NWLR (Pt. 616) 647 SC,

Oshodi v. Eyifunmi (2000) 7 SC (Pt. II) 145. Per UZO I. NDUKWE-ANYANWU, J.C.A.

WHETHER A PLAINTIFF CAN ENFORCE A CAUSE OF ACTION AFTER THE LAPSE OF THE PERIOD PRESCRIBED IN THE STATUTE OF LIMITATION

Where an action is statute-barred, a plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the limitation clause for instituting such an action had elapsed. See CBN v. Ukpong (2006) 13 NWLR (Pt. 998) page 555, Emiator v. Nigeria Army (1999) 12 NWLR (Pt. 631) page 362. Per UZO I. NDUKWE-ANYANWU, J.C.A.

WHEN THE ISSUE OF JURISDICTION CAN BE RAISED IN A PROCEEDING

The question of jurisdiction is very fundamental that it should be determined first by the courts before starting any proceedings. It is trite law that the issue of jurisdiction can be raised at any time by a party even on appeal in the Supreme Court. However, it is important that issues of jurisdiction must be raised timeously and resolved first before embarking on further proceedings. See Ukwu v. Bunge (1997) 8 NWLR (Pt. 518) page 527, Jeric Nig. Ltd v. UBN Plc (2000) 12 SC (Pt. II) page 133, Attorney General of Lagos State v. Dosunmu (1989) 3 NWLR (Pt. III) page 552, Nnonye v. Anyichie (2005) 2 NWLR (Pt. 910) page 623. Per UZO I. NDUKWE-ANYANWU, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

Between

CHRISTOPHER CHIBUZOR UMEANIA – Appellant(s)

AND

1. UNIVERSITY OF UYO

2. THE VICE CHANCELLOR, UNIVERSITY OF UYO

3. THE REGISTRAR, UNIVERSITY OF UYO

4. COMMISSIONER OF POLICE, AKWA IBOM STATE – Respondent(s)

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court sitting in Uyo delivered on 18th May, 2013 dismissing the suit No. FHC/UY/CS/72/2012.

The Appellant was the Applicant in that suit. The Appellant claimed against the Respondent as defendant by a motion on notice filed on 13th October, 2012 for the enforcement of the Fundamental Rights of the Applicant in terms of the Reliefs set out in paragraph 2 of the statement accompanying the Application to wit.

(a) DECLARATION that the rustication of the Applicant by the 1st-3rd Respondents vide the Respondents letter with Ref. UV/REG/DAA/SNT/VOL. 11/14 DATED Jan. 24, 2002 without fair hearing and further by the 1st – 3rd Respondents letters dated 16th September, 2008 and 27th November, 2008 in defiance of Judicial proceedings is an infraction of the Applicant’s constitutional rights to fair hearing, presumption of innocence, personal liberty, free movement and freedom from discrimination as guaranteed by Section 35, 36, 41 and 42 of chapter 4 of the 1999 Constitution as amended in 2011.

(b) An ORDER setting aside and nullifying the restriction of the Applicant by the Respondents vide letter herein above referred.

(c) A declaration that the Respondents are in breach of the constitutional/fundamental rights of the Applicant as guaranteed by Section 35, 36, 41 and 42 of chapter 4 of the 1999 Constitution as amended in 2011 by refusing to reinstate the Applicant for the award of graduate degree of Bachelors of Science in applied chemistry when the Applicant was not given opportunity to make representations to the Respondents and he was not in fact invited to make representations to the Respondents before he was allegedly rusticated and the Applicant is being subjected to in human and degradation treatment for being required to prove his innocence.

(d) A declaration that the Applicant not having been convicted by a Court of competent jurisdiction of committing any criminal offence and should not accordingly have been rusticated by the 1st -3rd Respondents thereby precluding the Applicant from being awarded a degree of Bachelors of Science in Applied Chemistry.

(e) An Order of Court directing permanently that the Applicant be reinstated as a graduate student for the award of a Bachelors degree in Applied Chemistry and an order restraining the Respondents, their agents, servants, privies Legal representatives, any person or group of person acting for and on their behalf from further refusing to reinstate the Applicant as a graduate student for the purposes of award of a Bachelors of Science degree in Applied Chemistry.

(f) N100,000,000.00 (One Hundred Million) Naira only jointly and severally against the Respondents for the torture, emotional stress and or psychological trauma and breaches of Applicant’s Fundamental Rights aforesaid occasioned by the Acts of the Respondents against the Applicant and or as a result of the Respondents breaches of the Fundamental Rights of the Applicant.

The grounds upon which these Reliefs are sought are as follows:

(a) Under the Constitution of the Federal Republic of Nigeria 1999 as amended every citizen including the Applicant is entitled to have his fundamental rights guaranteed under Sections 35, 36, 41 and 42 protected and shall not be deprived of his rights to personal liberty, fair hearing, freedom of movement and freedom from discrimination save as provided for in the said Constitution.

(b) The torture, emotional stress and psychological trauma caused against the Applicant by the Respondents by their refusal to reinstate him for the sole purpose of graduating him for the award of Bachelors of Science degree in applied chemistry after being discharged by the Court constitutes a breach of the Fundamental Right of the Applicant guaranteed by the Constitution.

(c) The actions of the Respondents acting in concert and or unilaterally were arbitrary and fragrant abuse of the Fundamental Rights of the Applicant as enshrined in the Constitution.

(d) There is no law in Nigeria permitting the Respondents to impose on the Applicant the responsibility of preferring charge in court against himself where the prosecution refuses to do so. Also there is no law that presumes the Applicant guilty until he is so found upon a charge by a Court of competent jurisdiction.

(e) It is a breach of the Fundamental Rights of the Applicant to be subjected to all this torture, emotional stress and psychological trauma when he has not been found guilty and convicted of a criminal offence by a Court of competent jurisdiction.

The Appellant also set out the facts upon which the application is made in a 19 paragraphs affidavit.

The Respondents filed a counter affidavit of 11 paragraphs with their supporting exhibits. Written addresses were filed and adopted. The learned counsel in his concluding paragraphs of his address on behalf of the 1st – 3rd Respondents stated thus:

5.1.1 The Applicant is stopped from bringing this application by virtue of the fact that he has earlier brought the same application against the same parties and that that application was heard on the merits and dismissed.

5.1.2 The implication of this Application is to cause this Honourable court to sit on appeal against its own judgment, an utterly illegal, illegitimate and unconstitutional enterprise under our jurisprudence.

5.1.3 The Applicant’s cause of action arose in 2002. The law applicable at the time for the redress of any fundamental right infringement was/is the FREP 1979. Under FREP 1979, he was statute-barred when he brought his earlier suit, and he therefore remains statute barred from bringing this application. He cannot now resurrect his dead rights and try to enforce them under FREP 2002.

5.1.4 The Applicant is not entitled to any of the reliefs he seeks in this suit.

5.1.5 The 2nd and 3rd Respondents are not juristic personalities and their names should accordingly be struck out from this action.

After the closing arguments of parties, the learned trial Judge delivered his considered judgment and held thus:

For the above reasons, all the reliefs sought by the Applicant are hereby rejected as he still has a criminal charge pending against him and does not become statute barred so as to extinguish the right of action. I so hold.

The Appellant was dissatisfied with the said judgment and thereafter filed his notice with four grounds of Appeal on 8th May, 2013.

The Appellant filed his Appellant’s brief on 15th September, 2013 and articulated four (4) issues for determination. They are namely:

ISSUES FOR DETERMINATION

i. Whether the Appellant is under an obligation by law to compel the police to file or prefer criminal charge against him in court or complain to the Attorney General of the State or of the Federal to enter a nolle prosequi to a case struck out by a court of competent jurisdiction several years ago and the Appellant discharged in respect thereof before the presumption of innocence could avail the Appellant over the allegations made against him in the said charge struck out (this issue relates to ground one).

ii. Whether the lower court was right when it held that the criminal charge and its proceedings in the case in focus are still pending against the Appellant and that “when a person commits an offence, a criminal cause of action arises against that person” (This issue relates to ground two).

iii. Whether the lower court misdirected himself in law when he unilaterally imported extraneous matters, facts and issues and utilized same to make adverse findings against the Appellant in his judgment (this issue relates to ground three).

iv. Whether the lower court’s judgment is against the weight of evidence adduced before it. (This issue relates to ground four).

Also filed is the Appellant’s Reply brief on 12th September, 2013. The 1st-3rd Respondents filed their joint brief on 15th August, 2013 and articulated two issues for determination. The 4th Respondent is unrepresented and filed no brief but he has been served with all the court processes including the hearing notice for the hearing of this appeal.

The Respondents filed a Respondent’s notice to contend that judgment should be affirmed on grounds other than those relied on by the court below. The Respondents relied on the following grounds:

Ground 1

The suit of the Appellant herein had been caught by the principle and doctrine of estoppel per rem judicatam or issue estoppel, and the Appellant could not therefore lawfully proceed against the 1st, 2nd and 3rd Respondents in the manner in which he purported to do in the suit now on appeal.

Particulars

(a) The Appellant herein earlier, in the year 2003, had sued the Respondents before the same Federal High Court, Uyo, in Suit No. FHC/UY/CS/140/03.

(b) The parties, the claims or issues, and the subject matter in Suit No. FHC/UY/CS/140/03 are all the same as in Suit No. FHC/UY/CS/72/2012 now appealed from.

(c) Suit No. FHC/UY/CS/140/03 was heard and judgment was delivered thereon (coram the Honourable Justice G. K. Olotu) on 7th April, 2005. The judgment ‘dismissed’ the Appellant’s Suit No. FHC/UY/CS/140/03.

(d) The judgment in Suit No. FHC/UY/CS/140/03 is valid, subsisting and final, and the court that gave the judgment was of competent jurisdiction.

Ground 2

The Appellant’s suit now appealed against, required the court below to, in effect, sit on appeal over its own subsisting judgment.

(a) The Suit No. FHC/UY/CS/140/03 was brought and determined at the Federal High Court, Uyo.

(b) The Suit No. FHC/UY/CS/72/2012 now appealed against was also brought and determined at the same Federal High Court, Uyo.

(c) The Appellant was therefore, by and in Suit No. FHC/UY/CS/72/2012, asking the Federal High Court to sit on appeal over its own earlier judgment in Suit No. FHC/UY/CS/140/03.

Grounds 3

The Appellant’s claims in the court below were, in any event, statute barred and accordingly not maintainable under the provisions of the Fundamental Rights Enforcement Procedure Rules (2009) (‘the 2009) Rules’) under which he purported to come.

Particulars

(a) The appellant was rusticated from the 1st Respondent with effect from 24th January, 2002 and his cause of action arose then.

(b) The applicable law to the Appellant’s case therefore the law then in force, namely, the Fundamental Rights Enforcement Procedure Rules, 1979 (FREP, 1979), not the 2009 Rules.

(c) By Order 1 Rule 3 (1) of FREP, 1979, the Appellant’s Suit No. FHC/UY/CS/140/03 was time barred since it was not brought within 12 months from 24th January, 2002.

(d) The Appellant’s Suit No. FHC/UY/CS/72/2012 now appealed from was brought outside the limitation period specified by FREP, 1979, which is the law applicable to his cause of action.

(e) The Appellant’s earlier Suit No. FHC/UY/CS/140/03 was in fact dismissed because it was statute barred.

(f) The 2009 rules are not retrospective in their application.

(g) The 2009 rules do not operate to resurrect a dead cause of action, especially such as the one in the Suit FHC/UY/CS/72/2012 now appealed from, which had specifically been earlier adjudged time barred in FHC/UY/CS/140/03.

Grounds 4

The Appellant is not entitled, in all the circumstances of this case, to the reliefs he sought, as claimed or at all, against the 1st, 2nd and 3rd Respondents, or indeed, any other Respondent.

(a) The 2nd and 3rd Respondents are not legal personalities and therefore cannot sue or be sued.

(b) The matter now appealed against had been litigated to its conclusion in Suit No. FHC/UY/CS/140/03. The dismissal in that Suit, whether it was right or wrong, has not been appealed against, has not been set aside, and is therefore subsisting.

(d) Suit No. FHC/UY/CS/72/2012 was brought more than seven years after the dismissal of Suit No. FHC/UY/CS/140/03, and more than ten years after the rustication of the Appellant of the Appellant on 24th January 2002. Delay defeats equity. Also, equity aids the vigilant, not the indolent.

(e) The legal maxim interest reipublicae ut sit finis litium also applies to this case and Appeal, as does the maxim interest reipublicae res judicatas non rescindi.

These four grounds are grounds on jurisdiction and as such must be treated first before getting into the substantive matter of this appeal. The Appellant counsel raised a Preliminary Objection challenging the 1st – 3rd Respondent’s notice of intention to contend that judgment be affirmed on grounds other than those relied on by the Court below.

The Appellant’s counsel submitted that the 1st – 3rd Respondents’ notice is incompetent. A preliminary objection to this notice can be raised at any stage of the proceedings. The same preliminary objection to a notice of intention to affirm judgment on other grounds was raised and upheld by the Supreme Court in the case of F.R.A. Williams v. Daily Times (1990) 1 BMLR page 131 per Coker, JSC on page 169-170.

“Another characteristics of Order 7 Rule 13 (1) of the Supreme Court Rules 1961 (Equivalent to Order 9 Rule 2 Court of Appeal Rules) is that its applicable only where the Respondent intends to retain the judgment but at the same time wants it varied, so where a Respondent intents for instance to dispute the jurisdiction of the Court of trial or to contest the competence of the entire proceedings or to maintain the absence of a fundamental prerequisite, it seems he cannot come under this Rule. In that case he has to file a substantive appeal. The basis for this is clear for a man cannot at the same time obtain an advantage by marinating a particular standpoint whilst keeping the advantage” (Parenthesis and underlining mine) A fortiori, the Respondent in the present case cannot say by way of Respondent Notice that the Court of Appeal awarded the Appellant excessive aggravated damages by reducing the award of N100,000.00 (One Hundred Thousand Naira) only made by the trial court to N60,000.00 (Sixty Thousand Naira) only. Accordingly the preliminary Objection raised by the Appellant succeeded and I too would strike out the Respondent Notice filed by the Respondent (underlining mine)”

Counsel submitted further that the trial Judge did not dismiss the Appellant’s application but rather held that it could not order for a re-instatement of the Applicant and the enforcement of his Fundamental Rights as prayed for by him because of the fact that those prosecuting him have failed to institute a new or fresh charge against the Applicant. The trial Judge advised the Applicant to make a formal complaint to the Attorney-General Akwa Ibom State or Attorney-General of the Federation. Counsel submitted further that a Respondent cannot come by Respondent’s notice to affirm, or vary decisions or findings of the lower court as they did in this appeal. This can only be done by a cross appeal. See Ehiochin Nig. Ltd v. Mbadiwe (1986) NWLR pg.47 per Oputa JSC.

“I do not think that there is any doubt that an appeal will include any proceeding taken to rectify an erroneous decision of a Lower court by a Higher Court. It may be an error in evaluating the facts or an error in understanding the pleadings and thus in appreciating the live issues raised on those pleadings. The latter example of error was Chief Onyiuke’s mainstay and trump card. It may even be an error in applying the law to the facts as found. The error may also be a misapprehension by the Lower court as to what the antecedent to presumptions were and therefore on whom the onus of proof lay. All these are errors which can be committed by a trial court.

The Appellate court – here the Court of Appeal, Lagos Division can itself be in error and that is why Section 213 of the 1979 Constitution conferred this Court Appellate jurisdiction to correct any error committed by the Court of Appeal, i.e. to say to review the proceedings of that Court either as to law or facts or mixed law and facts. In my humble view, where as in this case, Respondent seeks to vary the findings of the court of Appeal, he should do so by wav of Cross Appeal because it is on those findings that any decision in the Appeal one way or the other can correctly be made” (underlining mine).

Learned counsel submitted further that the 1st – 3rd Respondents can only challenge the decisions/findings of the lower court placing Reliance on estoppel, being statute barred and lack of jurisdiction of the lower court to entertain the suit by way of a cross appeal and not Respondent’s notice. Counsel therefore urged the court to hold that the said notice of intention to confirm or affirm the decision of the lower court on other grounds is incompetent and therefore this notice should be discountenanced.

In Reply, the Respondents’ counsel observed that it is a Respondent, not an Appellant who is expected to raise or rely on a Preliminary Objection in an appeal before this court. Counsel referred the court to Order 10 Rule 1 of Court of Appeal Rules, 2011 which provides as follows:

“A Respondent intending to rely upon a Preliminary Objection.”

The rules therefore do not appear to anticipate an appellant raising a Preliminary Objection in his own appeal. Counsel urged the court to discountenance this Preliminary Objection of the Appellant.

The 1st-3rd Respondent’s counsel submitted that the Preliminary Objection is without merit. The Appellant had argued that the grounds set out in the Respondent’s Notice did not arise from the judgment appealed from. Counsel submitted that such Respondent’s Notice is filed when the Respondent wants inter alia

“the judgment affirmed on grounds other than that or those upon which the lower court based its decision.”

Counsel referred the court to Order 9 Rule 2 of the Court of Appeal Rules 2011 and Bob-Manual v. Briggs (2003) 5 NWLR (Pt. 815) pg. 323.

The question of filing a cross appeal arises when the Respondent wants to challenge and reverse the decision of the court below, wholly or partially.

The court below only made one substantive decision, namely the dismissal of the Appellant’s case. Counsel argued that he was not challenging the decision. Counsel stated that the court had the singular duty of pronouncing on all the issues and questions raised before it, even if it believed that only one or few of those issues were sufficient to dispose of the matter. See the Supreme Court case of Tanko v. UBA Plc. (2010) 17 NWLR (Pt. 1221) pg.80. Counsel argued that, had the lower court considered those issues, the court below would still have dismissed the Appellant’s Application. Counsel therefore contended that:

Our Respondent’s Notice therefore does not contest the decision; rather, it contends ‘that the judgment is correct but that there are other grounds which could either be in substitution for some of the reasons given for it or in addition to the grounds for the judgment’.

See Bob-Manuel v. Briggs (supra) American Cyanamid Co. Ltd v. Vitality Pharmaceuticals Ltd (1992) 2 NWLR (Pt. 171) pg.15.

Counsel submitted further that, the very essence and the traditional role of a Respondent’s notice is to address grounds not relied upon or mentioned in the judgment just as in the instant appeal.

Counsel referred the court to S.15 of the Court of Appeal Act Cap. C36 LFN 2004. This court is in a position to make any decision which the trial court ought properly to have made. See A. C. v. Jang (2009) (Pt. 1132) pg. 475, A.G. Leventis Nig. Plc v. Akpu (supra). Counsel urged the court to consider those issues and pronounce on them as this suit was fought on affidavit evidence and addresses of counsel.

Counsel urged the court to hold that the Respondents’ Notice was valid and that the Preliminary Objection should be dismissed.

In reply, the Appellant’s counsel submitted that a Respondent who does not or fails to file a cross appeal where a cross appeal is necessary cannot distill issues for determination outside the Appellant’s substantive appeal. Where such a failure exists, the issues articulated by the Respondents go to no issue and ought to be struck out by the appellate court and the appeal determined on issues articulated by the Appellant. Counsel urged the court to strike out the 1st-3rd Respondents issues and their brief. Counsel also urged, the court to strike out the two issues distilled from the Respondents’ notice and resolve this issue for the appellant.

Let me first of all state here that the Respondents’ notice is an application brought by the Respondents as Applicants. It can also be taken as a cross appeal. Where the Appellant is also a cross Respondent. It therefore places the Appellant as Respondent to that application or Respondent to the cross appeal and therefore foists him with the necessary vires to challenge the application or cross appeal of the Respondents/Appellants to the Respondents’ notice.

It appears that from a plethora of cases, that, where a respondent is also aggrieved by the outcome of a judgment, he has an option to either file a cross appeal or file a Respondent’s notice. A Respondent who has filed a cross appeal cannot at the same time file a respondent’s notice.

B.C.E. Consulting Eng. v. NNPC (2004) 3 NWLR (Pt. 859) pg.1.

“A Respondent who did not file a cross appeal or a respondent’s notice cannot raise issues for determination which are outside the grounds of appeal filed by the Appellant. He can only either adopt the issues as formulated by the Appellant based on the grounds of appeal before the court or recast the Appellant’s issues by giving them a glance favourable to his defence of the appeal without departing from the complaint in the grounds of appeal” Osazuwa v. Isibor (2004) 3 NWLR (Pt. 859) pg.16.

It would be taken that the 1st – 3rd Respondents filed a Respondents’ notice so they are within their rights to articulate any issue(s) from their notice outside the grounds of the Appellant’s notice.

The 1st – 3rd Respondents are within their Constitutional rights to articulate issues from the grounds of their Respondents’ notice.

See American Cyanamid Co. Ltd v. Vitality Pharmaceuticals Ltd (supra).

I, therefore, hold that the Respondents’ notice is valid. The Appellants preliminary objection is without merit and, therefore, dismissed.

The 1st-3rd Respondents’ notice has 4 grounds. The four grounds are issues bordering on the jurisdiction of this court to hear this appeal as it is constituted.

Counsel submitted that the Appellant’s suit ought to have been dismissed in the lower court for

“cause of action estoppel”.

By this doctrine, once a cause of action has been litigated upon to judgment by the same parties and on the same subject matter, the parties are estopped from re-litigating the same cause of action. See Odjevwedge v. Echanokpe (1987) 1 NWLR (Pt. 52) pg.653, Okafor Adone v. Ozo Gabriel Ikebudu (2001) 14 NWLR (Pt. 733) pg. 385.

The plea is a complete defence to any subsequent action. See Muda Anwoya & Ors v. John Bankole Shodeke (2006) 13 NWLR (Pt. 996) pg.34. Makun v. Federal University of Technology, Minna (2011) 18 NWLR (Pt. 1278) pg.190 where the Supreme Court held as follows:

Cause of action estoppel.

“precludes a party from asserting or denying as against the other party, the existence of a particular cause of action the non-existence or existence of which of which has been determined by a court of competent jurisdiction in a previous litigation between the same parties. This is because it is against the rule of public policy for anyone to be vexed twice on the same ground for one and the same cause of action and or the same issues. It is also an application of the public policy that there should be an end to litigation. In appropriate case, the parties affected are stopped from bringing a fresh action before any court on the same cause…”

As if in anticipation of this Appeal, the apex Court further held, at page 227 (paragraphs F-G) of that report that;

“The plea applies where a court has given a final decision on the matter like deciding that it has no jurisdiction to entertain a matter and there is no appeal against it.”

Counsel submits, that the cause of action in the previous suit No. FHC/UY/CS/140/1003 and this suit No. FHC/UY/CS/72/2012 appealed on are the same. The cause of action is the rustication of the Appellant from the 1st Respondent in circumstances the Appellant considers as unfair and unconstitutional. The parties in both cases are also the same. Counsel, therefore, urged the court to resolve this issue in favour of the Respondent.

The court below ought to have dismissed the suit, it being statute-barred for years before instituting this suit on 15th October, 2012. Counsel re-iterated that the law in force at the time of the accrual of the cause of action determined the merit of the case. See Prof. Aderemi Dada Olulola v. UNILORIN (2004) 18 NWLR (Pt. 905) pg. 416, Issac Obiuweubi v. CBN (2011) 7 NWLR (Pt. 1247) pg. 465. The Supreme Court recently held in Hope Democratic Party v. Peter Obi & 5 Ors (2011) 18 NWLR (Pt. 1278) pg. 80 where it was held;

“the applicable law in respect of a dispute is the law existing or that existed at the time the cause of action arose, not when the action was instituted or decision reached. Applying this position of the law to this case.

Counsel argued that it means the cause of action i.e. the rustication of the Appellant, having accrued on 24th January, 2002, it is the law in force at the time, that will determine his right and obligations. The Appellant has brought this cause of action as a violation of his fundamental rights under the (1999) Constitution. The law applicable is the Fundamental Rights Enforcement Procedure Rules (1979) which was the prevailing law on 24th January, 2002. This law will govern or is the applicable law to the Appellant’s claim at the time. However, the 2009 Rules is now in existence. By Order III Rule 1 there is really no statute of limitation. The Appellant was already statute barred in 2003 not to think of another action instituted in 2012. Counsel submitted that the Appellant cannot still have a cause of action.

“Nearly ten years after his right of to the courts had extinguished,” see Hope Democratic Party v. Peter Obi (supra).

The question of issue estoppel had caught up with the Appellant as the court below in the first suit FHC/UY/CS/140/03 held that the suit was statute-barred. The issue had been raised; adjudicated upon and determined in the first suit by a court of competent jurisdiction. It cannot be re-litigated again.

Agbogunleri v. Dapo (2008) 3 NWLR (Pt. 1074) pg. 217. The plea of issue estoppel is a complete defence to any subsequent action. Muda Anwoyi & Ors v. John Bankole Shodeke (2006) 13 NWLR (Pt. 996) pg. 34, Okafor Adone v. Ozo Gabriel Ikebudu (2001) 14 NWLR (Pt. 733) pg.385 where the Supreme Court sets the requirements for issue estoppel as follows:

a. That the parties or their privies are the same in both the previous and present proceedings;

b. That the claim or issue in dispute in both actions is the same;

c. That the res or the subject matter of the litigation in the cases is the same;

d. That the decision relied upon to support the plea of estoppels per rem judicatam is valid, subsisting and final; and

e. That the court that gave the previous decision relied upon to sustain the plea is a court of competent jurisdiction.

However the Supreme Court also in the case of Dakolo v. Rawane-Dakolo (2011) 16 NWLR (Pt. 1272) page 22 expressed the requirements slightly differently thus:

a. The parties or their privies must be the same with those in the previous suit;

b. The issues for determination must be the same;

c. Adjudication in the previous case must have been by a court of competent jurisdiction; and

d. Previous decision must have fairly decided the issues between the parties.

The listed requirements are substantially the same. Counsel submitted that the requirements listed by the Supreme court in both cases of Dakolo v. Rewane – Dakolo (supra) and Adone v. Ikebudu (supra).

Counsel submitted that the previous suit FHC/UY/CS/140/2003 and the present suit which is on appeal FHC/UY/CS/72/2012 are between the same principal parties i.e. The Appellant, Christopher Chibuzo Umeania and University of Uyo. See the cases of UNIJOS v. Carlen (Nig) Ltd (1992) 5 NWLR (Pt. 241), Perm Sec. Ministry of Works v. Balogun (1975) Vol. 9 NSCC page 292.

The claims and issues in both suits are the same; See Exh. E in the first suit and pages 2-3 of the Record of Appeal. In summary, the Appellant’s complaint in both suits is that the Appellant’s rustication was without fair hearing and that he had not been found guilty of any crime. The Appellant claimed in both suits for an order setting aside and nullifying his rustication by the 1st Respondent and for a declaration that the respondents are in breach of the fundamental rights of the Appellant as guaranteed by the Constitution.

Counsel submitted also that the respondent is the same in both suits. There is also a valid, subsisting final judgment in suit no FHC/UY/CS/140/03. The Appellant did not appeal against this judgment before embarking on this suit. The first judgment was given on merit and the Supreme Court in Chief L. L. B. Ogolo v. Joseph T. Ogolo (2006) 5 NWLR (Pt. 972) page 163 held as follows:

“a judgment given at the end of a normal trial, after hearing evidence of both parties and submissions of Counsel on the relevant issues of facts and law”

The Federal High Court that delivered the judgment in the first suit was a court of competent jurisdiction. This judgment has not been appealed upon and, therefore, it is still valid and subsisting.

Counsel urged the court to hold that the issue of statute barred dealt in that first suit is still valid and subsisting.

Counsel submitted that the Federal High Court cannot sit on appeal over a final judgment of a court of competent and concurrent jurisdiction. See Silas Bounwe v. REC, Delta State (2006) 1 NWLR (Pt. 961) page 286.

This can only happen where the judgment has been obtained by fraud or that there was a fundamental defect which goes to the jurisdiction and competence of the court.

Counsel submitted again that the Appellant had delayed a lot: from the first suit in 2003 and the second suit in 2012. The maxim delay defeats equity is very apt in the instant case. Counsel argues that, if initially some equity was to be urged on behalf of the Appellant it had been defeated by delay. It took the Appellant more than 7 years after the dismissal of the first suit to bring the second suit now on appeal.

Counsel submitted finally that upon all the evaluation of the evidence before the court below, the only verdict available to that court was a dismissal of the suit.

Counsel finally urged the court to dismiss this appeal on the issues canvassed by the 1st – 3rd Respondents.

The learned counsel to the Appellant vehemently argued that the Respondents came by a Respondent’s notice instead of a cross appeal to challenge the judgment of the court below. Counsel referred the court to F.R.A Williams v. Daily Times (supra) Eliochin Nig. Ltd v. Mbadiwe (supra).

Counsel re-iterated that all those estoppels per rem judicatum and statute-barred are not issues to be submitted for adjudication on a Respondents’ notice. Counsel argued that it should be by a cross appeal.

Counsel urged the court to discountenance all the arguments on the Respondent’s notice and deal with the issues in the substantive appeal.

The two issues articulated by the 1st-3rd Respondents are namely thus:

2.1.1 Issue No. 1: Was the federal High Court right when it dismissed the suit of the Plaintiff?

2.1.2 Issue No. 2: In the circumstances of this case, and upon all the processes before that Court, were there other or further grounds upon which the Federal High Court should also have dismissed the Appellant’s suit?

The two issues are both bordering on jurisdiction.

“The question of jurisdiction of court is a radical and crucial question of competence because if a court has no jurisdiction to hear and determine a case, the proceedings are and remain a nullity ab initio no matter how well conducted and brilliantly decided they might be”

Dapianlong v. Dariye (2007) 8 NWLR (Pt. 1036) page 332.

The Applicant was rusticated by a letter dated 24th January, 2002 by the 1st Respondent. The Appellant filed a suit in the Federal High Court Uyo on 24th January, 2003. The learned trial Judge held in her judgment inter alia.

“This action was instituted on 24th January, 2003 which is the date the motion ex-parte was filed. I have earlier on held that the act complained of or the cause of action occurred on 24th January, 2002. It is on this dated that the time prescribed in the rules will begin to run. See Jallco Ltd v. Owoniboys Tech. Services Ltd (1995) 4 NWLR (Pt. 391) page 534. Twelve months from that day would run out on midnight of 23rd January, 2003.”

With the foregoing, it is clear that the Appellant was already out of time when he filed the first suit as rightly held by the trial Judge.

“For the purposes of limitation action, time begins to run from the moment the cause of action arose or accrued. A cause of action accrues from the date on which the incident which gave rise to the cause of action accrued. In determining whether an action is statute barred or not, it is pertinent to ask when time begins to run. And time begins to run when there is a party who can sue and another to be sued and all the facts have happened which are material to be proved to entitle the plaintiff to succeed. N.I.I.A. v. Ayanfulu (2007) 2 NWLR (Pt. 1018) page 246, Fadare v. Attorney General of Oyo State (1982) 4 SC page 1, Humbe v. Attorney General Benue State (2000) 3 NWLR (Pt. 649) page 419”

The burden of proving that an action is statute-barred lies on the party who asserts that the action is statute-barred. See N.I.I.A. v. Ayanfulu (supra).

In the instant case, the Respondents raised it in the first suit and the second suit. In the first suit, the trial Judge held that the suit was statute-barred having been filed outside the limitation period of 12 months.

This first suit was statute-barred at the time of filing it. There was no appeal against the judgment in that suit. It is mind buggling that counsel will in 2012, nine years after the first suit, file another suit between the same parties, same subject matter and before the same court. If the suit was statute-barred in 2003, what would be its status in 2012?

This second suit is bad. It is even an abuse of court process. Like the learned counsel for the 1st – 3rd Respondent has submitted, this second suit is bad for issue estoppel. The issue in both suits are for the purported unlawful rustication of the Appellant.

The Respondents in the second suit and on appeal set up a plea of Res judicata and estoppels.

For a plea of estoppels to succeed, a party relying on it must establish the following facts, namely:

(a) That the parties or their privies involved in both the previous and the proceedings in which the plea is raised are the same;

(b) That the claim or issue in dispute in both proceedings are the same;

(d) That the decision relied upon to support the Plea is valid, subsisting and final; and

(e) That the court that gave the previous decision relied upon to sustain the plea was a court of competent jurisdiction. The burden is on the party who sets up the defence of estoppels per rem judicatam to establish the above pre-conditions conclusively, Balogun v. Ode (2007) 4 NWLR (Pt. 1023) 1 SC, Dagaci of Dere v. Dagaci of Ebwa (2006) 7 NWLR (Pt. 979) 382 SC, Igwego v. Ezeugo (1992) 6 NWLR (Pt. 249) 561 SC.

A successful plea of Res judicata constitutes a bar to any fresh action as between the parties or their privies. Res judicata is, as a plea, a bar, and as evidence it is conclusive. Therefore, once the plea of Res judicata has been established, the jurisdiction of the court would be ousted. See Eze v. Nwaubani (2003) 7 NWLR (Pt. 818) page 50.

There is also the problem of issue estoppels. It has been proved that the parties in both suit are the same. The issue of rustication of the Appellant had been agitated and adjudicated upon by Federal High Court Uyo, a court of competent jurisdiction. This same issue was again brought up in the second suit between the same principal parties. See Oyerogba v. Olaopa (1998) 13 NWLR (Pt. 583) page 509, Akujobi v. Ekanem (1999) 1 NWLR (Pt. 585) page 96, Ito v. Ekpe (2000) 2 SC page 98, Ebba v. Ogodo (2000) 6 SC (Pt. 1) page 133.

Osunrinde v. Ajamogun (1992) 6 NWLR (Pt. 246) 156 SC,

Igwego v. Ezeugo (1992) 6 NWLR (Pt. 249) 561 SC,

Dokubo v. Omoni (1999) 8 NWLR (Pt. 616) 647 SC,

Oshodi v. Eyifunmi (2000) 7 SC (Pt. II) 145.

The suit No FHC/UY/CS/140/03 has created estoppels per rem judicatum. The same issue has been litigated between the same principal parties and has been pronounced upon. The first suit should act as estoppels for the second suit which has culminated in this appeal.

With the foregoing, therefore, I hold that the first suit No. FHC/UY/CS/140/03 is a valid judgment of a court of competent jurisdiction and still subsisting. There is no appeal against that judgment. The judgment held inter alia that the suit of the Appellant, Christopher Chubuzo Umeania, is statute-barred. The second suit no FHC/UY/CS/72/2012 is also statute-barred and an abuse of court process. The plea of Res judicata is sustained so also is the issue estoppels. No other suit with this same issue of the rustication of Christopher Umeania can be maintained against the parties to this two suits and their privies.

The issues articulated by the 1st – 3rd Respondents in their Respondents’ notice are upheld. This appeal is, therefore, unmeritorious and hereby dismissed.

I make no order as to costs.

MOHAMMED LAWAL GARBA, J.C.A.: A draft of the lead judgment delivered by my learned brother, Uzo I. Ndukwe-Anyanwu, J.C.A., in this appeal was read by me before now.

For the reasons set out in the lead judgment which I adopt, the appeal is wanting in merit and so I join in dismissing it.

Parties shall bear their respective costs of prosecuting the appeal.

ONYEKACHI A. OTISI, J.C.A.: I had the privilege of reading, in draft, the Judgment just delivered by my learned brother, Ndukwe-Anyanwu JCA, dismissing this appeal.

The essential position of a Respondent who files a Respondent’s notice is that the judgment is correct but that there are other grounds which could either be in substitution for some of the reasons given for it or in addition to the grounds for the judgment. See: American Cyanamid Company v. Vitality Pharmaceuticals Ltd. (1991) 2 NWLR (Pt. 171) 15; Bob-Manuel v. Briggs (2003) 3 MJSC 122, (2003) 1 SC (Pt. 1) 95.

The issues raised in the Respondents’ Notice, which border on the jurisdiction of the lower court have been comprehensively addressed: and, I am in complete agreement with the reasoning and conclusions of my learned brother, upholding the said issues.

This appeal is therefore without merit; and, is hereby dismissed.

I abide by the Orders made in the lead Judgment.

Appearances

For Appellant

AND

For Respondent