ALH. UMARU BAKO & ORS v. YAU ABUBAKAR (2014)

ALH. UMARU BAKO & ORS v. YAU ABUBAKAR

(2014)LCN/6825(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 5th day of February, 2014

CA/K/219/2012

RATIO

REQUIREMENTS FOR A PLEA OF ESTOPPEL PER REM JUDICATAM TO SUCCEED

Now, it is settled law that for a plea of estoppel per rem judicatam to succeed, the party relying on it must establish the following requirements or preconditions, namely:

that the parties or their privies are the same in both the previous and present proceedings;
that the res or the subject matter of the litigation in the two cases is the same;

iii. that the claim, in case of cause of action estoppel, or the issue or issues in dispute, in case of issue estoppel, is the same;

that the decision relied upon to support the plea is valid, subsisting and final; and
that the court that gave the decision relied upon is a court of competent jurisdiction.

Unless all these constituent elements or requirements of the doctrine are fully established, the plea cannot be sustained. They must be satisfied conjunctively and failure of any of them is fatal to the plea of res judicata – Omnia (Nig) Ltd Vs Dyktrade Ltd (2007) 15 NWLR (Pt 1058) 576, Abubakar Vs Bebeji Oil and Allied Products Ltd (2007) 18 NWLR (pt 1066) 319, Agbogunleri Vs Depo (2008) 3 NWLR (Pt 1074) 217, Ikotun vs Oyekanmi (2008) 10 NWLR (pt 1094) 100, Daniel Tayar Transport Enterprises Nig Co Ltd Vs Busari (2011) 8 NWLR (Pt 1249) 387, Ayuya Vs Yonrin (2011) 10 NWLR (pt 1254) 135.

The burden is on the party who sets up the plea of cause of action estoppel or issue estoppel to conclusively establish that all the pre-conditions for its application exist. He has to marshal facts that would convince the court that the new action instituted by the claimant is not merely a waste of time of the court but equally an abuse of the process of court. The court must steer clear of giving judgment in a case where a defence of res judicata is raised and there are no strong cogent and convincing evidence glaringly clear as to persuade the court to act in the manner the proponent of the defence pleads – Bruce-Akumngio v. Harry (2001) 11 NWLR (pt 723) 88, Dagaci of Dere Vs Dagaci of Ebwa (2006) 7 NWLR (Pt 979) 382, Gege Vs Nande (2006) 10 NWLR (Pt 988) 256, Dike-Ogu Vs Amadi (2008) 12 NWLR (Pt 1102) 650, Polyvalent (Nig) Ltd vs Akinbote (2010) 8 NWLR (pt 1197) 506. All the pre-conditions must be proved and none can be presumed – Ike Vs Ugboaja (1993) 6 NWLR (Pt 301) 539.

A court before whom a plea of estoppel per rem judicatam is raised has a duty to carefully investigate the matter in order to decide whether the plea applied; a superficial or perfunctory investigation may lead to grave injustice – Oseni Vs Oniyide (1999) 13 NWLR (pt 634) 258. Thus, in Olokotintin Vs Sarumi (1997) 1 NWLR (pt 480) 222, where there was no clear cut evidence showing the description of the land in dispute in the earlier suit, the Court of Appeal held that though the parties and the claim in the earlier suit and the present one were the same, the plea of res judicata was not sustainable. In determining whether the issues, the subject matter of the two actions and the parties are the same, the court is permitted to study the pleadings, the proceedings and the judgment in the previous action. The court is entitled to look at the Judge’s reason for his decision and his notes of the evidence and is not restricted to the record. It may also examine other relevant facts to discover what was in issue in the previous case. It is entirely a question of fact – Agbasi Vs Obi (1998) 2 NWLR (Pt 536) 1, Okukuje vs Akwido (2001) 3 NWLR (Pt 700) 261, Bruce-Akumngio v. Harry (2001) 11 NWLR (pt 723) 88, Adone vs Ikebudu (2001) 14 NWLR (Pt 733) 385, Ekong vs Udo (2002) 16 NWLR (pt 792) 1, Anwoyi vs Shodeke (2006) 13 NWLR (Pt 996) 34, Makun vs Federal University of Technology, Minna (2011) 18 NWLR (Pt 1278) 190.

Thus, where a party fails to tender the record of the proceedings of the court that decided the matter relied on to plead estoppel per rem judicatam, the plea is doomed to fail – Agumuo vs Azubuike (1999) 5 NWLR (pt 604) 649. Also, in the absence of the certified true copies of the judgments in the previous cases being relied upon in support of the plea of res judicata, there will be nothing to compare with the present case in determining if any or all the conditions were met to sustain the plea – Akayepe Vs Akayepe (2009) 11 NWLR (pt 1152) 217. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

CONSIDERABLE FACTORS IN DETERMINING WHETHER AN ABUSE OF JUDICIAL PROCESS

Now, dealing with the issue of abuse of process, it has been stated that the critical factors in the determination of whether an action is an abuse of the judicial process are, considerations of the circumstances for bringing the suit, the reasons for doing so, the grounds relied upon for instituting the action and the desirability for instituting the action. See A.G. Federation vs. A.G., Abia State (2001) 11 NWLR Part 725 page 773-774, per Karibi-Whyte J.S.C.

JUSTICES

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

ITA G. MBABA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

1. ALH. UMARU BAKO
2. ALH. HASSAN BAKO
3. LAMI BAKO
4. FATU BAKO
(FOR THEMSELVES & ON BEHALF OF HEIRS OF LATE ABDUL AZIZ BAKO) Appellant(s)

AND

YAU ABUBAKAR Respondent(s)

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): The Appellants, (for themselves and on behalf of heirs of late Abdul Aziz Bako) instituted a legal proceeding against the Respondent before the Kaduna State High Court by a Writ of Summons dated the 10th January 2011. Then, by the Statement of Claim dated the 3rd January, 2011 the Appellants sought the following reliefs against the Respondent:
“1. A declaration that the Plaintiffs, being the heirs of late Abdulazeez Bako, are the ones entitle (sic) to the exclusive possession enjoyment and title to that marshy land situate at Shika village, Igabi Local Government of Kaduna State which shares boundaries thus: to the East is a stream; to the West is a River; to the South is River and to the North is farm land of Mallam Sule.
2. A perpetual injunction restraining the defendant, his agents, servants, privies or anyone claiming from or through him from entering or further entering the said farm land.
3. Sum of N250,000.00 being general damages for trespass or unlawful entry unto the said land without the Plaintiffs consent.”

Upon being served with the Writ of Summons, the Respondent filed a Notice of Preliminary Objection challenging the jurisdiction of the lower Court to entertain the suit on the ground that the matter is an abuse of Court process and for lack of jurisdiction. The said objection was supported by the facts averred in a nine paragraph affidavit deposed to by one Khadija Abdulrasheed, the Litigation Secretary in the Chambers of Idris Ibrahim & Co, Solicitor to the Respondent.

In their reaction, the Appellants filed a fourteen paragraph counter-affidavit sworn to by one Rahim Haruna, the Litigation Secretary in the Respondent’s counsel’s law firm.
The learned trial Judge considered the preliminary objection particularly the facts in support of the Respondent’s contention and the contrasting facts of the Plaintiffs, now the Appellants, in their counter-affidavit, and then expressed at pages 84-86 as follows:
“While the Objector says the marshy land has been shared as evidenced by Exhibit A, he annexed to the affidavit in support, the Respondents claim that the marshy land belongs to them and has never been shared. The Respondents are also contesting the Exhibit A calling it fake and obtained by fraud.
The said Exhibit A is a certified true copy of a writ of possession issued by the Upper Sharia Court II Zaria City sharing land between the Objector and Alhaji Abdu Ibrahim. If my understanding of the paragraph 12 of the Respondents deposition quoted above is right, then it seems to me that what the Respondents are saying is that the Exhibit is not genuine and that the said Abdu Ibrahim is not a joint heir with the Respondents. Firstly, it is my view that if that be the case, the Respondents ought then to have challenged that decision of Upper Shariah Court II by challenging the award/allocation of part of the land to Abdu Ibrahim since he is not an heir and further still furnish this Court with evidence from the Upper Sharia Court denying the said Exhibit A. I am certain that learned Counsel for the Respondents Mr. M. T. Mohammed is aware that such an allegation as made by them is not made in vaccum and that such must be proved to the standard required by law; it being criminal in nature. There is no such ingredients put before me as proof that a Court process, that on the face of it is certified as true, can be deemed by this Court to be otherwise.
The Respondents’ deposition that they are not aware of the marshy land having been shared does not per se and in my view then become proof that it was not in act shared more so, in the light of Exhibit A. I would say that it is deductible from the depositions of parties, that it is the same marshy land that was shared that is the subject matter of this suit. In the light of this therefore, and in the absence of proof of fraud as alleged, the said Exhibit A is and remains a valid, subsisting and binding order of Court same having not been appealed against, nor the order set aside.
In the light of my view as expressed above that the marshy land in issue is one and the same as in the Exhibit A, and in view of the subsistence of a suit before the High Court of Zaria filed by the Objector, albeit a civil claim in respect of damages caused to his crops planted on part of the land in issue; I do agree with learned Counsel for the Objector Mr. Attah G. A., that this suit is lacking in good faith and in my opinion rightly constitutes an abuse of court process as contemplated by law; see for instance, the case of Njokanma vs. Mowete (2002) FWLR Part 108 page 1536 at 2556 and Olutinrin vs. Azaika (1998) 6 NWLR Part 554 366 at 368 cited by learned Counsel for the Respondents and Applicant respectively.
On the whole therefore, I am of the opinion that the Objector’s application that this suit is an abuse of Court process has been established and thus the objection is sustained. In consequence therefore, this suit is accordingly struck out.”

The preliminary objection was sustained and the Appellants’ said suit was struck out. They filed an appeal against the said decision.
In this Court, the parties filed their respective Briefs of Argument. The Appellant formulated two issues in like manner;
“1. Whether Exhibit A or any other evidence is of any evidential value which the learned trial Judge could rely on so heavily to sustain the Respondent’s allegation.
2. Whether the learned trial Judge was right that the Appellants’ case was an abuse of Court process in view of the materials placed before the Court.”

In the Respondent’s Brief of Argument settled by his learned Counsel, H. Idris Ibrahim, Esq; two issues were postulated for the consideration of this Court. They are as follows:
“a) Whether the filing of the suit KDH/Z/4/11 was not an abuse of the Court process?
b) Whether Exhibit ‘A’ was a document properly place before the Court?

In respect of issue No. 1, it was contended by the Appellants’ learned counsel, M. T. Mohammed Esq; that the earlier judgment being relied upon for the preliminary objection ought to have been produced by the Contender, i.e., the Respondent to prove the issue of abuse of process. All he produced was one Writ of Possession attached to his Notice of Preliminary Objection as Exhibit A. He stressed that no order or judgment of any Court was placed before the lower Court.

He contended that the lower Court ought not to have attached any importance to the said Exhibit A, because, firstly, it was written in Hausa language and its translation was never done and was never produced before the lower Court yet the lower Court relied on it to reach a decision that the land was shared. He stated that it was the Hausa version of it that contained the description of the land. Counsel cited the cases of Iwambe vs. Swande (2002) FWLR Part 85 page 355; and Ali vs. Audu (2005) All FWLR Part 269 page 1909 at 1921 paragraphs E – G, and submitted that if such document was admitted but not translated the Court will disregard it; secondly, being a public document, a certified true copy of it ought to have been produced. There is no indication as to where and how the said Exhibit A was certified by High Court 2, Zaria. The name of the officer who allegedly certified it is conspicuously absent and that gave it away as a dubious document. The cases of Ali vs. Audu (supra); Dale Power Systems Plc vs. Witt & Bush Ltd (2007) All FWLR Part 394 page 353 and Yakubu vs. Ida (2009) All FWLR Part 465 page 1833 at 1845 – 1848 paragraphs E – G were made reference to vis-a-vis the remarks of the trial Court at page 84 of the record. He contended that Exhibit A did not mention the sharing of any land therein nor give description of boundaries of the land allegedly shared therein, that the portion written in English language only talked about possession. He further pointed out that there was no nexus between the land contained in Exhibit A and the land, the subject matter in the present suit.

It was equally argued that Exhibit A is self contradictory; on the one hand, i.e., in the first part written in English, it says that a land had been ordered to be delivered to one Alh. Abdu Ibrahim, and on the other hand, i.e., in the part directly below the Hausa portion it commanded a land to be given to one Alh. Ya’u Abubakar. He also drew attention to the trial Court’s finding at page 84 of the record that there exists some dispute between the parties as it relates to both some marshy land and the hilly land also, and reiterated that Exhibit A did not mention the same, and, as such, it was erroneously acted upon by the trial Court. He further contended that there is no evidence to show that the marshy land, subject matter of suit No. KDH/KAD/4/2011 has been litigated upon or shared or awarded to anyone, there was no description of the land litigated upon at the Upper Sharia Court, Zaria City in Exhibit A or that the land share in Exhibit A is the same with the subject matter in suit No. KDH/KAD/4/2011 leading to this appeal. He stated there was no nexus between the Alh. Abdu Ibrahim mentioned in Exhibit A and the Appellants herein, and then posed the question, is it not fraudulent for the Respondent to litigate on a farm with Alh. Abdu Ibrahim when it is clear that only the Appellants are in possession of the land and claiming absolute titles? He, therefore, urged this Court to resolve issue No. 1 in favour of the Appellant.

Dealing with the second issue, on abuse of Court process, learned Counsel stated that due to the manner in which the Respondent’s Counsel muddled the connotations and principles of abuse of process, and res judicata, he would dwell on the two interchangeably. Counsel relied on Atuyeye vs. Ashamu (2009) ALL FWLR Part 455 page 1770 at 1778 paragraphs E-G, and submitted that there is difference between abuse of Court process and res judicata. He illustrated his points with the cases of Ekong vs. Udo (2003) FWLR Part 139 page 1875 at 1899, and Nigergate vs. Niger State Government (2008) All FWLR Part 406 page 1938 at 1952 paragraphs A – F and submitted that before a plea of estoppel will be successful, the party relying on it must establish that the parties or their privies are the same, (2) the claim or the issue are the same, (3) the res i.e., the subject matter are the same; (4) the decision relied on to invoke the doctrine of res judicata is valid, subsisting and the final; and (5) the Court that gave the previous decision must be a Court of competent jurisdiction. He also mentioned the book titled “An Almanac of Contemporary Judicial Restatements with Commentaries at page 305 by Lai Oshitokunbo Oshisanya” and emphasized that the necessity to place before the Court a copy of the Judgment in the previous suit is sound, logical and unassailable. It enables the Court to do justice and examine if all the requirements of the law have been satisfied.

He contended that the burden is on the Respondent to produce the judgment and satisfy the Court how the latter case is an abuse of Court process. He pinpointed that the Respondent did not file his Statement of Defence before raising the objection. He argued that a party must first plead the defence of res judicata as a defence in his statement of defence before arguing it. He cited Nigergate case (supra) in support. He noted that the affidavit evidence of the parties differ greatly on all those conditions needed to establish the issue of an abuse of Court process. He stated that the parties in Exhibit A are different from the parties in the present suit. In Exhibit A, the suit was between the Respondent herein and one Alh. Abdu Ibrahim. The Appellants denied any relationship with the said Abdu Ibrahim who is not one of the heirs of late Abdulazeez Bako. They also denied sharing the subject matter, i.e., the marshy land with the anybody. All these were averred at paragraphs 5, 6, 7, 8 and 12 of their Counter-affidavit to the affidavit in support of the preliminary objection. He referred to page 85 where the lower Court referred to the subject matter of the action leading to this appeal and that mentioned in Exhibit A and submitted that the suit before the Zaria High Court was only for damages whereas, in the instant case, the relief is for declaration of title. The parties are not the same, therefore, it can never be the basis for sustenance of an allegation of abuse of process since the judgment itself was not produced. He argued that the land mentioned in Exhibit A is unknown to them and neither the description of the land nor identification of the same was made. He then argued that no attempt whatsoever was made by the Respondent to establish the conditions necessary to sustain res judicata or esstopel or an allegation of abuse of Court process. He then urged that this issue be resolved in their favour and the appeal be allowed.

Learned Counsel for the Respondent referenced the ruling on the lower Court shown at pages 82 lines 14, and 85 lines 18-24 of the record and submitted that what was determined by the lower Court was issue of the Court process, and not res judicata. He also stated there is a whole word of difference between an abuse of Court process and res judicata, and Counsel cited the case of Osutinri vs. Agaka (1998) 5 NWLR Part 544 366 at 375 – 306 paragraphs H – C, per Abdullahi (as he then was) in support. He also cited Oluturin vs. Agaka (1998) 8 NWLR Part 544 page 375 for definition of the term “abuse of Court process.”

He referred to paragraph 4 (a) – (e) of the affidavit in support of the preliminary objection contained in page 35-36 of the record, the contention of the Defendant/Respondent that the Plaintiffs were part of the proceedings at the lower Court (USC) which produced Exhibit A, and submitted that the contention of the Respondent that Exhibit A was obtained by fraud could not be established as required by Section 138 of the Evidence Act. He stated that Exhibit A stood out clearly and was not impeached, and cited the case of Nkokanma vs. Mowete (2002) FWLR Part 108 page 365 at 368.

Regarding issue No. 2, Learned Counsel referred to the contention of the Appellants that Exhibit A relied upon by the lower Court to give judgment was partly couched in English and partly in Hausa, and submitted that a document placed before a Court not couched in the language of the Court should not be countenanced, the case of Ali vs. Audu (supra) and Iwambe vs. Swande (supra) relied on by the Appellants’ Counsel submitted that a closer look at Exhibit A, reveals that all the major portions were couched in English language except the names of the boundaries of the land which was subject matter of inheritance. He stressed that the names of the parties on Exhibit A are clearly written in the language of the Court. He argued that days of technicalities are gone with the winds of injustice, the trend now is to do substantial justice.

Learned counsel submitted that documents written in a language other than the language of the Court need to be translated and used by Court, and should not be rejected. He cited in support, the cases of Damian vs. C. O. P. (1995) 8 NWLR Part 415 p. 513 at 539 at 540; Damian vs. C.O.P. (supra) at 545 at paragraphs C – E, and then urged this Court to dismiss this appeal.

I have carefully studied the facts of this case, the processes filed by the parties at the lower Court and all the legal arguments tendered on their behalf by their respective counsel and would not hesitate to acknowledge that Exhibit A attached to the affidavit in support of the preliminary objection filed by the Respondent and shown at page 44 of the record of this appeal, is a mere copy of writ of possession. It is titled, ‘Writ of Possession’ Upper Sharia Court II, Zaria City dated 12/6/2009 and was written partly in Hausa language and partly in English language.

The part written in English says:
“Whereas by an Order of this Court dated the 22/06/2009, one Alh. Ya’u Abubakar was ordered to deliver to Alh. Abdu Ibrahim possession of the land and premises hereinafter mentioned, that is to say.”
I think the portion of the said document written in Hausa contains apparently the description and substance of the land and premises the said Alh. Ya’u Abubakar was commanded to hand over to Alh. Abdu Ibrahim. Then the latter part of the Writ of Possession, i.e., the said Exhibit A written in English language stated thus:
“You are hereby commanded to give possession of the said land and premises to the said Alh. Ya’u Abubakar and to make a report of what you have done under this Writ immediately after execution thereof and to bring that report and this Writ to this Court.”

In this latter part, whoever was commanded to give possession to Alh. Ya’u Abubakar was not stated. There is obvious conflict in the content of the parts of Exhibit A written in English. There is no doubt Exhibit A was in respect of a matter between one Alh. Abdu Ibrahim and one Alhaji Ya’u Abubakar. The names of the Appellants herein are “(1) Alhaji Umaru Bako (2) Alh. Alhassan Bako, (3) Lami Bako and (4) Fatu Bako.” None of the Appellants’ names appeared on the said Exhibit A attached to the Respondent’s affidavit in support of his preliminary objection. Further, the documents shown at pages 52 – 58 of the record, Exhibit D, being copies of the Writ of Summons and the Statement of Claim filed in the suit No. KDH/Z/186/2010 portrayed the names of the parties therein as: “Between: Alh. Ya’u Abubakar and (1) Alh. Audu Ibrahim (2) Alh. Umaru Abdu (3) Kasuwa Abdu (4) Sale Abdu (5) Aliyu Kasuwa (5) Alh. Tata Abdu (7) Shuaibu Abdu (8) Dangana Abdu (9) Hassan Abdu (10) Mamuda Kasuwa.” Again none of the names of the Appellants appeared as parties in the said suit. Furthermore, the reliefs sought therein by the said Alh. Ya’u Abubakar who sued as Plaintiff therein were: (a) The sum of Three Million Naira (N3, 000,000.00) from the Defendant for damages; and (b) cost of filing the action.

Then, in the matter leading to this appeal, the Appellants who were the Plaintiffs at the lower Court against Ya’u Abubakar, sought for a declaration that they, being the heirs of late Abdulazeez Bako are the ones entitled to the piece of land clearly described therein, a perpetual injunction, and, the sum of N250,000.00 being general damages for trespass, or unlawful entry into the said land without the Plaintiffs’ consent.

In Exhibit A, it is clear, that whichever land or property was contested between Alh. Abdu Ibrahim and Alhaji Ya’u Abubakar, the said order made therein was for possession to be delivered up.
It is glaring on the aforementioned documents that the parties therein, the subject matter of the actions, and, issues contested by them were not the same as the ones in the present suit, though this Court did not enjoy the benefit of knowing the identities of the lands and their sizes mentioned in Exhibit A due to non translation of the Hausa language portion to English language.

The worrisome aspect of the decision of the lower Court was its reliance on Exhibit A that was partly written in Hausa language with the translated English version of it not being tendered before it.

The description and boundaries of the lands which Alh. Abdu Ibrahim was ordered by the Upper Sharia Court Zaria City, to hand over to Alh. Ya’u Abubakar were presumably contained in the portion of Exhibit A written in Hausa language. The lower Court was not given the benefit of knowing the lands described therein except, may be, the learned trial Judge, presumably, being a Northerner, used his knowledge of Hausa language to interpret the said portion. This procedure has been condemned in its entirety and had indeed led to voiding of many decisions since vernacular language is not the language of the Court. The official language of superior Courts of record in Nigeria is English. In Ojengbede vs. Esan (2001) 18 NWLR Part 746 page 271 at 790 paragraphs A – D, Iguh, J.S.C., opined that:
“If documents written in any language other than English are to be tendered properly or used in evidence, they must be only translated into English language and to be tendered and properly used in evidence, they must be only translated into English either by a competent witness called by the party to the proceedings who needs them to prove his case or by the official interpreter of the Court. A Court cannot on its own engage in the translation in interpretation of a document written in a language other than English once it is precluded from performing the role of a witness and the arbiter at the same time in the same proceeding. In the instant case, the trial Judge is Yoruba and must have made use of his private and personal knowledge of the Yoruba language to translate the minutes in which the issue of partition was discussed by the Respondents’ family. This however, he was not entitled in law to engage in. The said minutes was not written in the language of the Court and there being no translation of it into English in the course of the proceedings, the trial court was in error to have taken notice of it in its judgment.” (Underlined for emphasis.)

In the light of the above, it is clear the lower trial Judge was in complete error to have used his knowledge of Hausa language to come to the conclusion that it was the same piece of land mentioned therein that were being litigated upon by the Appellants herein. This Court cannot confirm the opinion expressed by the lower Court regarding the identities and sizes of the lands since the English version of the portion written in Hausa was not produced and tendered. I, therefore, resolve issue No. 1 in favour of the Appellants.

I would refrain from commenting on the uncertified nature of the said Exhibit A, since the trial Court that had the opportunity of examining it held that on the face of it, it is certified. The question is; ‘How could the Appellants have challenged the decision in the so called order contained in Exhibit A when the Appellants were not named parties in that suit and had no nexus with the said suit. Besides, Exhibit A was not the Judgment of the said Upper Sharia Court II, Zaria City. The judgment ought to have been produced to aid the Court in ascertaining the actual decision that led to the making of Exhibit A.

There is said to be an abuse of the process of the Court when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent such as instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. It is not the existence or pendency of a previous suit that causes problem, rather, it is the institution of a fresh action between the same parties and on the same subject matter, when the previous suit has not yet been disposed of that constitutes the abuse of process of court. See Nweke vs. Udobi (2001) 5 NWLR Part 706 page 445 at 461 where Okafor vs. A.G. Anambra State (1991) 6 NWLR Part 200 page 659 at 681 paragraphs C-D, a Supreme Court decision that was referred to and applied. See also the case of Ikine vs. Edjerode (2001) 18 NWLR Part 745 page 446 at 500 paragraphs D-G, page 479 paragraphs G-H and 488 paragraphs G-A, where the Supreme Court held that for an action to be declared frivolous, vexatious, oppressive and an abuse of the process of court, it must be shown quite clearly that there are two or more actions between the same parties in respect of the same subject matter in one or more Courts at the same time.
Furthermore, in the case of Idoko vs. Ogbeikwu (2003) 7 NWLR Part 819 page 275 the circumstances which may give rise to an abuse of process were summarized as follows: –
“(1) Instituting a multiplicity of actions on the same subject matter against the same opponent on the same issue, or a multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action.
(2) Instituting different actions between the same parties simultaneously in different courts even though on different grounds.
(3) Where two different processes are used in respect of the exercise of the same right for example a cross-appeal and a respondent’s notice.
(4) Where an application is sought by a party to an action to bring an application to court for leave to raise issues of fact already decided by courts below.
(5) Where there is no iota of law supporting a court process or where it is premised on frivolity or recklessness. See Saraki vs. Kotoye (1992) 9 NWLR Part 264 Page 156.”

The question now is does the present suit constitute an abuse of the process of court or could it be said to have been improperly employed by the Plaintiffs to the irritation and annoyance of the Defendant?

In R-Benkay Nig. Ltd. vs. Cadbury Nig. Ltd. (2012) LPELR-7820(SC), Adekeye, J.S.C., opined;
“The concept of abuse of court process relying on numerous decided authorities is imprecise. It involves circumstances and situation of infinite variety and conditions. But a common feature of it is the improper use of judicial process by a party in litigation to interfere with the due administration of justice. The circumstances which will give rise to abuse of court process include:-
a) Instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues on multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action.
b) Instituting different actions between the same parties simultaneously in different courts, even though on different grounds.
c) Where two similar processes are used in respect of the exercise of the same right for example a cross-appeal and a respondent’s notice.
d) Where an application for adjournment is sought by a party to an action to-bring an application to court for leave to raise issues of fact already decided by the lower court.
e) Where there is no law supporting a court process or where it is premised on frivolity or recklessness
f) Where a party has adopted the system of forum-shopping in the enforcement of a conceived right.
g) It is an abuse of court process for an appellant to file an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal. When the appellants application has the effect of over reaching the respondents application.
h) where two actions are commenced, the second asking for a relief which may have been obtained in the first, the second action is Prima facie vexacious and an abuse of court process.” Per ADEKEYE, J.S.C. (Pp. 25-26, paras. F-G) To constitute an abuse of Court process all the ingredients must be present in the instant case.

I have already carried out the analysis at pages 11, 12 and 13 of this judgment and concluded that the parties and the subject matter are not the same. Exhibit A is a photocopy of the Form 17 for Writ of Possession, filled, presumably, pursuant to the order of the Upper Sharia Court Zaria City made on 12/6/2009, on the one hand, commanding Alhaji Ya’u Abubakar to deliver up possession of a certain land to Alh. Abdu Ibrahim, and, on the other hand, for possession to be given to Alhaji Ya’u Abubakar. I am afraid there is nothing in the present suit depicting that the Appellants herein sought for a relief(s) which may have been obtained in the suit in respect of which Exhibit A was issued by the Upper Sharia Court Zaria City. In view of the foregoing, I hereby resolve issue No. 2 formulated by the Appellants in their favour. Accordingly, I find this appeal meritorious and hereby allow this appeal. The judgment of the lower Court is hereby set aside. Consequently suit No. KDH/KAD/4/11 is hereby remitted to the Chief Judge of Kaduna State for re-assignment to another Judge of the State for hearing on the merits. I make no order as to costs.

ITA G. MBABA, J.C.A.: I agree with the reasoning and conclusions of her Lordship Orji-Abadua JCA. I abide by the consequential orders in the lead judgment.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Orji-Abadua, JCA. His Lordship has considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein.

The application of the Respondent, the grant of which by the lower Court led to this appeal, was predicated on the concept of abuse of process. The gravamen of the application was that the present suit filed before the lower Court was caught by the doctrine of estoppel per rem judicatam in that a similar matter on the same subject matter had been determined by the Upper Sharia Court II in Zaria City. It is not in dispute that an action caught by a plea of estoppel per rem judicatam is one of the recognized species of abuse of process of court – Usman vs Baba (2005) 5 NWLR (pt 917) 113, Offor Vs Leaders & Co Ltd (2007) 7 NWLR (pt 1032) 1, Jimoh Vs Akande (2009) 5 NWLR (Pt 1135) 549, Yusuf Vs Ajaokuta Steel Co. Ltd (2010) 2 NWLR (pt 1177) 167.

Now, it is settled law that for a plea of estoppel per rem judicatam to succeed, the party relying on it must establish the following requirements or preconditions, namely:
i. that the parties or their privies are the same in both the previous and present proceedings;
ii. that the res or the subject matter of the litigation in the two cases is the same;
iii. that the claim, in case of cause of action estoppel, or the issue or issues in dispute, in case of issue estoppel, is the same;
iv. that the decision relied upon to support the plea is valid, subsisting and final; and
v. that the court that gave the decision relied upon is a court of competent jurisdiction.
Unless all these constituent elements or requirements of the doctrine are fully established, the plea cannot be sustained. They must be satisfied conjunctively and failure of any of them is fatal to the plea of res judicata – Omnia (Nig) Ltd Vs Dyktrade Ltd (2007) 15 NWLR (Pt 1058) 576, Abubakar Vs Bebeji Oil and Allied Products Ltd (2007) 18 NWLR (pt 1066) 319, Agbogunleri Vs Depo (2008) 3 NWLR (Pt 1074) 217, Ikotun vs Oyekanmi (2008) 10 NWLR (pt 1094) 100, Daniel Tayar Transport Enterprises Nig Co Ltd Vs Busari (2011) 8 NWLR (Pt 1249) 387, Ayuya Vs Yonrin (2011) 10 NWLR (pt 1254) 135.

The question whether or not a previous judgment operates as estoppel per rem judicatam in a later action is entirely a matter of law as applied to the established facts – Ezeanya V. Okeke (1995) 4 NWLR (Pt 388) 142, Okukuje Vs Akwido (2001) 3 NWLR (pt 700) 261.
The burden is on the party who sets up the plea of cause of action estoppel or issue estoppel to conclusively establish that all the pre-conditions for its application exist. He has to marshal facts that would convince the court that the new action instituted by the claimant is not merely a waste of time of the court but equally an abuse of the process of court. The court must steer clear of giving judgment in a case where a defence of res judicata is raised and there are no strong cogent and convincing evidence glaringly clear as to persuade the court to act in the manner the proponent of the defence pleads – Bruce-Akumngio v. Harry (2001) 11 NWLR (pt 723) 88, Dagaci of Dere Vs Dagaci of Ebwa (2006) 7 NWLR (Pt 979) 382, Gege Vs Nande (2006) 10 NWLR (Pt 988) 256, Dike-Ogu Vs Amadi (2008) 12 NWLR (Pt 1102) 650, Polyvalent (Nig) Ltd vs Akinbote (2010) 8 NWLR (pt 1197) 506. All the pre-conditions must be proved and none can be presumed – Ike Vs Ugboaja (1993) 6 NWLR (Pt 301) 539.

In the instant case, the only document produced before the lower Court by the Respondent in support of his application was a certified true copy of a writ of possession allegedly issued by the said Upper Sharia Court II, Zaria City. The Respondent neither produced the record of proceedings or the certified true copy of the judgment of the said Upper Sharia Court II, Zaria City. There was nothing in the said writ of possession showing that the parties, the cause of action and/or the subject matter in the suit that was determined by the Upper Sharia Court and in the suit before the lower court were the same or substantially similar. There were thus no materials before the lower court upon which it could have based the copious findings it made on the issue of estoppel per rem judicatam canvassed by the Respondent. The findings were mere speculations and conjectures and a court of law is enjoined to shun speculations in arriving at its decisions.

It is for this reason, and fuller reasons contained in the lead judgment, that I too find merits in this appeal and I hereby allow the appeal. I also hereby set aside the Ruling of the High Court of Kaduna State in Suit No KDH/KAD/4/2011 delivered on the 11th of May, 2011, by HonoUrable Justice E. Y. B. Lolo striking out the suit of the Appellant as constituting an abuse of process. I too make no order on costs.

Appearances

S. Abdulqadi (Mrs.);
M. T. Mohammed Esq;
Zainab Sambo (Miss);
S. T. Zailani Esq.For Appellant

AND

A. T. Abubakar Esq;
A. Adamu Esq;
H. Idris Ibrahim Esq.For Respondent