NIGERIAN PORTS AUTHORITY v. ATTORNEY-GENERAL OF CROSS RIVER STATE & ORS (2014)

NIGERIAN PORTS AUTHORITY v. ATTORNEY-GENERAL OF CROSS RIVER STATE & ORS

(2014)LCN/7391(CA)

In The Court of Appeal of Nigeria

On Thursday, the 10th day of July, 2014

CA/C/64/2011

RATIO

PRACTICE AND PROCEDURE: THE DOCTRINE OF ESTOPPEL PER REM JUDICATA; THE INGREDIENTS OF THE DOCTRINE OF ESTOPPEL PER REM JUDICATA

PRACTICE AND PROCEDURE: ESTOPPEL PER REM JUDICATA; WHEN DOES ESTOPPEL PER REM-JUDICATA ARISES

Now estoppel per rem-judicata or estoppel by record arises where the issues of fact has been judicially determined in a final manner between the parties or their privies by a court or tribunal having jurisdiction in the matter and the same issue comes directly in question in subsequent proceedings between the parties or their privies. lt effectively precludes a party to an action, his agent and privies from disputing, as against the other party in any subsequent suit, matter which had been adjudicated upon previously by a court of competent jurisdiction between him and his adversary involving the same issues. It is entirely a question of fact whether the parties and their privies and the subject matter of the claim are the same in both the previous and present Suits. See UKAEGBU VS. UKOJI (1991) 6 NWLR (PT.196) 127; OSUNRINDE VS. AJAMOGUN (1992) 6 NWLR (PT 246) per. JOSEPH JUDE JELLA, J.C.A.

APPEAL: ISSUES FOR DETERMINATION; WHETHER THE COURT IS ENTITLED TO RE-FORMULATE ISSUE OR ISSUES FORMULATED BY PARTIES AND THE PRPOSE OF REFRAMING ISSUE OR ISSUES

In the case of Unity Bank Plc. V. Bouari (2008) 2-3 S.C. (PT.II) 1, the Supreme Court, per Ogbuagu, JSC, said:
Of course, it is now firmly settled that a court, can and is entitled to re-formulate issue or issues formulated by a party or parties or Counsel in order to give it precision and clarity. See the cases of Okoro v. The State (1988) 12 S.C. 191; (1988) 12 SCNJ 191; Latunde & Anor v. Bella Lajunfin (1989) 5 S.C. 59; (1989) 5 SCNJ 59; Awojugbagbe Light Industries Ltd. v. P.N. Chinukwe & Anor (1995) 4 NWLR (Pt.390) 379; (1995) 4 SCNJ 162; Osunbiyi v. Ishola (1996) 6 NWLR (Pt.452) 12 at 24; (1996) 5 SCNJ. 143 and Lebile v. The Registered Trustees of Cherubim & Seraphim Church of Zion of Nigeria Ugbobla & 3 Ors. (2003) 2 SCM, 39; (2003) 1 SCNJ 463.
It is now firmly settled that the purpose of reframing issue or issues, is to lead to a more judicious and proper determination of an appeal. In other words, the purpose, is to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity. See the case of Musa Sha (Jnr) & Anor. V. Da Ray Kwan & 4 Ors. (2000) 5 SCNJ 101. Per. ONYEKACHI AJA OTISI, J.C.A.

JUSTICES

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

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria

JOSEPH JUDE JELLA Justice of The Court of Appeal of Nigeria

Between

NIGERIAN PORTS AUTHORITY Appellant(s)

AND

1. ATTORNEY-GENERAL OF CROSS RIVER STATE

2. COMMISSIONER FOR LANDS AND HOUSING

3. DR. SAMA EKPO SAMA Respondent(s)

JOSEPH JUDE JELLA, J.C.A.(Delivering the Leading Judgment): In the Federal High Court Calabar the Plaintiff/Appellant by originating summons raised three questions for determination as follows:

1. Whether the Plaintiff’s proprietary interest in the land in dispute and his development thereon known lying and situate at Ekorinim Calabar. Cross River State (Harbour Village) measuring approximately 11.04 hectares which vest in the Plaintiff under and by virtue of Section 125(3)(b) paragraph 9(3)(b) of third schedule of Nigeria Ports Act No 28 of 1999 and section 317 of 1999 Constitution are capable of being revoked and extinguished by the 1st and 2nd Defendants.

2. Whether the Plaintiff’s land lying and situate at Ekorinim (Harbour Village) Calabar Gross River State is having regard to the status of the Plaintiff as an Agency of the Federal Government exempted from the provisions of the Land Use Act 1978.

3. Assuming the provisions of the Land Use Act are applicable to the land in dispute. Whether the 2nd Defendant is empowered to revoke the Plaintiff’s proprietary interest in the said land situate at Ekorinim (Harbour village) Cross River State and without reasons to vest same simultaneously in the 3rd Defendant through a revalidation public notice.

The reliefs of the action set out in the originating summons are as follows:

(a) A deliberation that all the pieces or parcel of land and the developments thereon lying being and situate at Ekorinim measuring approximately 11.018 hectares otherwise known as the Harbour village vest absolutely in the Plaintiff under and by virtue of the provisions of s.125(3)(b) paragraph 9(3) third schedule of Nigeria Ports Act No. 38 of 1999 and section 317(1) of the 1999 Constitution of the Federal Republic of Nigeria.

(b) A declaration that all the piece or parcel of land and the development thereon lying and situate at Ekorinim measuring approximately 11.018 hectares otherwise known as Harbour Village Calabar constitute part and parcel of the Federal Ports under the control and management of the Plaintiff (An Agency of the Federal Government) and the Federal Government and therefore exempted from the provisions of the Land Use Act 1978.

(c) A declaration that the Defendants lack the statutory and constitutional powers to revoke the subsisting proprietary right of occupancy of the plaintiff in respect of the land situate at Ekorinim (Harbour Village) in Calabar, Cross River State (sic) measuring approximately 11.048 hectares.

(d) A declaration that the purported revocation of the Plaintiffs proprietary Statutory right of Occupancy over the land situate at Ekorinim Harbour Village and the purported simultaneous vesting of same land in the 3rd Defendant via a purported revalidation notice dated 26th November 2007 under the land of the 2nd respondent is null and void, ultra vires a gross violation of the provisions of the Land Use Act 1978 and contrary to the plaintiff proprietary rights guaranteed by the 1999 Constitution of the Federal Republic of Nigeria.

(e) An order setting aside the purported revocation by the 2nd Defendant of the Plaintiffs proprietary interest right of occupancy in the land in dispute situate at Ekorinim (Harbour Village) Calabar, Cross River State and the purported revalidation of the 3rd Respondents interest on the said land.

(f) An order or perpetual injunction restraining the Defendants, their Agents, servants, privies all persons claiming through them or in trust for them and all other persons not authorized by the Plaintiff from entering into, remaining thereon, taking possession, taking any steps towards possessing any part of the Plaintiff’s land.

The originating summons was supported by 19 paragraph affidavit. I think this matter will be better understood if a brief history of the matter is given. The Appellant was the Plaintiff at the Federal High Court Calabar in Suit No: FHC/CA/CS/93/2007. The then South Eastern State Military Administrator acquired the 3rd Respondent’s land comprising 46 units houses at Ekorinim called the Harbour Village measuring approximately 11.048 hectres and vest same in the Plaintiff now Appellant in 1979.
Aggrieved by such a revocation the 3rd Defendant filed a Suit No: C/104/84 at the Calabar High Court challenging the acquisition and vesting of the said land on the Plaintiff/Appellant. The High Court of Cross River State Calabar nullified the said acquisition of the land by the Military Governor and subsequent vesting of same on the Plaintiff/Applicant and that there was no appeal against judgment. When the State Government revalidated the 3rd Defendant’s title to the property vide Cross River State Government Gazette No. 4 of 2007.
The notice of revocation of the Plaintiff/Appellant title over the said land was communicated to the Plaintiff/Appellant which brought the action to the Federal High Court, Calabar.

In its judgment of 25th October, 2010 the said Federal High Court presided by Justice C. J. Aneke, all the reliefs sought by the Plaintiffs were refused. He said:

“On the whole the issues are resolved in favour of the Defendants against the Plaintiffs. For avoidance of doubt, I find and hold that having regard to the valid and subsisting judgment of the Calabar High Court in Suit No. C/104/84 the disputed land is still vested on the 3rd Defendants and not by virtue of the subsequent revocation of the Plaintiffs title thereto and revalidation of the 3rd Defendant’s title by the 1st and 2nd Defendant’s. Accordingly all the reliefs (i), (ii), (iii), (iv), (v) and (vi) are hereby refused”

The Appellant felt aggrieved with this decision it therefore appealed to this Court. The notice of Appeal contains 8 Grounds of Appeal. Contained in Vol. II or in Vol. II of the Record of Appeal. In compliance with the rules of this court, the parties filed and exchanged briefs of argument. The Appellant formulated 4 issues for determination, the issues are:

1. Whether Learned trial Judge properly directed or misdirected himself, when after holding that the issue for determination was the scope and exercise of revocation powers of Governor of Cross River State and still held that;

“the disputed land is still No. C/104/84 and not by virtue of the subsequent revalidation of 3rd Defendants title by the 1st and 2nd Defendants” (Grounds 1 and 6)

2. Whether the Learned trial Judge rightly or wrongly held that the Appellant is bound by judgment in Suit No. C/104/84 notwithstanding that the Appellant was not a party to and was not aware of pendency of proceedings in the said Suit. (Grounds 2 and 4).

3. Whether learned trial Judge was right or wrong to have held that Appellant was guilty of standing by and that record/issue estoppel cannot be-utilized against the 3rd Respondent despite the Judgment/Ruling in Suit No. CA/E/139/89 and FHC/C/CS/27/2006 Grounds 2, 3, 4, 5 and 7.

4. Whether learned trial Judge rightly or wrongly held that Appellant who was not shown to have been aware of Suit No: C/104/84 ought to have applied to join the suit (Ground 8).

The above issues formulated by the Appellants were adopted by the 1st and 2nd Respondents. The 3rd Respondent identified the following issues for determination.

i. whether the trial Court was right in holding as the decision of the Calabar High Court in Suit No. C/104/84: DR SAMA EKPO SAMA VS. ATTORNEY GENERAL OF CROSS RIVER STATE & ANOR, subsist and validates the 3rd Respondent’s title to the land in dispute (Grounds 1, 2, 4 and 6 of the Grounds of Appeal in Notice of Appeal filed on 12th November, 2010.

ii. Whether in view of the subsisting decision of Calabar High Court in Suit No. C/104/85 – DR. SAMA EKPO SAMA VS. ATTORNEY GENERAL OF CROSS RIVER STATE & ANOR, there was nothing for the Appellants declaratory reliefs to be anchored upon (Ground 1 of the Grounds of Appeal in the Notice of Appeal filed on 12th November, 2010.

iii. Whether the 3rd Respondent challenged the legality of the acquisition of his property by the 1st and 2nd Respondents in this Suit by the lower Court (Ground 3 of the Grounds in the Notice of Appeal filed on 12th November, 2010.

iv. Whether the Appellant was guilty of standing by in this Suit (Grounds 5 & 8 of the grounds in the Notice of Appeal filed on 12th November, 2010.

v. Whether the issues in Suit NO. FHC/CA/27/2006 CHIEF DR. SAMA EKPO SAMA VS. NIGERIA PORT AUTHORITY & OTHER AND CA/E/139/89; ROYAL WITHERLAND HARBOUR WORKS COMPANY & NIGERIA PARKS AUTHORITY VS. DR. SAMA EKPO SAMA (R.N.H.W VS. SAMA (1991) 2 NWLR (PT 171) 64, IS THE SAME WITH SUIT NO. C/104/84. DR SAMA EKPO SAMA VS. ATTORNEY GENERAL OF CROSS RIVER STATE & ANOR (see Ground 7 of the Notice of Appeal filed on 12th November, 2010.

I have already stated that the 1st and 2nd Respondents have adopted the issues formulated by the Learned Senior counsel. Issue 1 of the Appellants issue will be discussed with issue 1 of the 1st and 2nd Respondents issue. I will as well take 3rd Respondents issue No.1 and 2 together with the Appellants issue No.1 and 1st and 2nd Respondents issue No.1.

In arguing issue No.1 learned senior counsel submitted that the learned Judge dismissed the appellants claim on account of perceived impeachment of the appellants title as a result of declaration granted in favour of the 3rd Respondent in Suit No C/104/84. It is then stated that after the trial Federal High Court correctly decided that the issue for determination was the scope of revocation power or improper exercise of such powers. Counsel referred to pages 314 – 315 of the records of appeal and that the lower Court thereafter based his decision on a ground entirely different from the issue for determination. It is submitted citing, DADA VS. BANKOLE (2008) ALL FWLR (PT 403) 1209 @ 1222 PARA E – G; MV GONGOLA HOPE VS. SMURFIT CASES LTD (2007) ALL FWLR (PT 388) 1005 @ 1018 that the parties and indeed the court are bound by the issues formulated by parties. It is again stated that the court is incompetent to formulate issues for the parties. That where the court formulates issues parties must be called to address the court on that. Reference was made to MOHAMMED VS. STATE (1999) 5 NWLR (PT 1992) 438 PARAS A – B.

In his own submission the counsel for the 3rd Respondent submitted that the court had unfettered discretion to rearrange or formulate issues for determination. We were referred to SHSMB VS. GOSHINE (2013) 2 NWLR (PT 1338) 383.

I must state that the purpose of issue for determination is to narrow down the issues in controversy in the interest of accuracy.
I am in agreement with learned counsel for the 3rd Respondent that the counsel had inherent powers to suo motu reframe issue or issues formulated by a party or parties or their counsel in other to give precision and clearly if it will lead to more judicious and properly determination of the case. See UNITY BANK PLC VS. BOAURI (2008) 7 NWLR (PT 1086) 372; ERESIA EKE vs. ERIKOHA (2010) 8 NWLR (PT.1197) 421; OMOWORARE VS. OMISORE (2010) 3 NWLR (PT 1180) 50.

I however disagree with the learned senior counsel that it is incumbent on the court framing the issue to call on parties to address the court. While the court has a duty to give parties an opportunity to be heard on any issue it raises suo motu, a failure to do so does not necessarily lead to a reversal of the decision. The appellant must go further to show that the failure to hear him on the part occasioned a miscarriage of justice. See OLUBODE VS. SALAMI (1985) 2 NWLR (PT 7) 282, IMAH VS. OKOUBE (1993) 9 NWLR PT 316 159; EFFIOM VS. CRSIEC (2010) 14 NWLR (PT 1213) 106.

In another submission learned counsel for the appellant quarreled seriously with the learned trial Federal High Court for agreeing with the action of the Governor of Cross River State for revocation of land the property of an agency of the Federal Government. It is submitted that the provision of the Land Use Act precisely section 28 rest the power of revocation only on the governor to be exercised by him alone, which should equally be signed by him only. That there was no evidence that the revocation was signed by a delegate of the governor. Learned counsel has urged upon as to hold citing MAIYAGUN & ORS VS. GOVERNOR OF LAGOS STATE that the notice of revocation was not signed by or on behalf of the Governor of Cross River State.

Learned Counsel for the 1st and 2nd Respondent in response to this point stated that in compliance with the provision of the Land Use Act the Governor of Cross River State delegated His Commissioner for Land to act on his behalf and that this is in accordance with the Land Use Act. We were referred to PIP LTD VS. TRADE BANK NIG. LTD (2009) 13 NWLR (PT 1159) 577, 624-625; UBN PLC VS. AYODARE & SONS LTD (2007) 13 NWLR (PT 1052) 567.

I agree that the appointment of the Commissioner for Lands is in accord with the true tenants of the Land Use Act more especially acting on behalf of the Governor of Cross River State in accordance with Section 28 of the Land Use Act.
Appellants issue 2 and 3, and 3rd Respondent issue No 4.

Arguing issues 2 and 3 together learned senior counsel submitted that reliance was placed on record estoppel as well as estoppel by conduct in support of the case in the lower Court. It is then stated that the lower Court suo motu raised estoppel by standing by against the appellant and concluded that appellant stood by and allowed the battle to be fought in suit No C/104/84. Quoting page 315 of the records of Appeal where learned trial Judge stated:

“Plaintiff has not denied being aware of suit No: C/104/84 but was content to stand by and allow the 1st defendant herein to fight its battle in a litigation that fundamentally touches on its own interest” page 315 Record of Appeal.

The foregoing is or to which learned senior counsel submitted that the learned trial Judge had no legal or factual basis for the above finding. He said there was also no legal basis for the application of estoppel by standing by against the appellant. It is contended that there was no plea for Standing-By by any of the Respondents. It is again stated that parties never raised, joined issues on Standing By or address the Court on estoppel by Standing By.
In further submission learned counsel for the appellant stated that estoppel by Standing By must be specifically raised/pleaded by the party relying on it reliance was placed on. We were referred to BELLO VS. FAYOSE (1999) 11 NWLR (PT 627) 510 AT 518-519 PARAS H.A, CHELLARAMS & SONS VS. G. B OLLIVANT LT (1944) 10 WACA; IN NWAORU VS. UDEAJA (1990) 1 NWLR PT 125 PP 188 @ 213-214 AGBOR JSC held:

“For a previous judgment to operate as estoppels per rem judicatam on the principles of Standing By, the party sought to be estopped must know what was passing and be content to stand by while someone else in the interest champions his cause and fight his battle “standing By Principles ought to be confined to cases in which participation in “battle is proved up to the hilt” (Alashe Vs. Ilu (1964) 1 All NWLR 390…

Submitting on issue No. 4 learned counsel for the 3rd Respondent as to whether the appellant was guilty of standing by in this suit, submitted that from the affidavit evidence before the lower court, the appellant did not in anyway deny not being aware of suit No C/104/84 DR SAMA EKPO SAMA VS. ATTORNEY GENERAL OF CROSS RIVER STATE & ANOR was against the appellant grantor, through whom the appellant derived its title. It is submitted that the only inference to be made from the conduct of the appellant before the lower court was that he stood by and allowed its grantor to fight its fight.
It is then stated that standing by can be implied from conduct. We have been urged to hold:

In AJIBOYE VS. ISITOLA (2006) 13 NWLR (PT 998) ONNOGHEN JSC held that:
It is settled law that the ingredients of the doctrine of estoppel per rem judicata are as follows:
(a) Parties
(b) The issues
(c) The subject matter in the previous action were the same as those in the action in which the plea is raised. See ODJEUWEDJE VS. ECHANOKPE (1987) 1 NWLR PT 52, 633, EZEAMYE VS. OKEKE (1995) 4 NWLR (PT 388) 47 DOKUBO VS. ONOMI (1999) 8 NWLR (PT 616) 647.
Therefore contrary to the decision of the court below, the appellant had as duty to appeal against the decision of the High Court of Cross River State in Suit No. C/104/84 on the issue of validity of the acquisition. See ODJEVWEDJE VS. ECHANOKPE (1987) 1 NWLR (PT 52) 633. Contrary to submission of learned senior counsel no issue in Appeal No. CA/E/134/89 was resolved against the 3rd Respondent.

It is then submitted that the appellant was bound by the decision in Suit No. C/104/84 since he did not appeal against the decision.

In his own issues 2, 3 and 4 learned counsel for the 1st and 2nd Respondent submitted that the learned trial Judge was legally justified in holding that the appellant is bound by the judgment in C/104/84 delivered on the 18th April, 1985 and that the judgment took effect from that date notwithstanding that the appellant was not a party thereto and claimed not to be aware of the pendency of suit No C/104/84.

The 4th issue contained in the appellant’s brief of argument related to the decision of the learned trial Judge that the appellant ought to have applied to the court in Suit No. C/104/84 to be joined as a party the way she applied to be joined in C/105/78. Learned counsel further contended that there was no evidence before the court below that the appellant was. served with the processes in suit No C/104/84 and refused to join as a party.
There is no doubt that the decision in suit No C/104/84 is a subsisting judgment of the Calabar High court which voided the revocation of the Respondents land by the 1st and 2nd Respondent. Learned counsel for the appellant submitted that the appellants were neither aware nor were they parties to the suit. The appellants expressed willingness if they knew about the pendency of Suit No. C/104/84 and they were equally served they would have joined the Suit.

Learned counsel for the 3rd Respondent submitted that there was no need to serve the appellants with any notice of a pending case. This they said is so because the people which the derived their title through them were served. This learned counsel submitted made them as agent of the defendants in Suit No C/104/84 and so as stated in AMADIUM VS. IBOK (2006) 6 NWLR (PT 975) 158 @ 177 PER OMOKRI J. that:

Where the principal of An Agent is known or disclosed the “proper party to sue or be sued for everything done or omitted to be done by the agent is the principal”

The facts remain that the judgment in C/104/84 is a subsisting judgment which declared the action of the Cross River State Government in respect to the revocation of the 3rd Respondents land null and void. This is a judgment of a competent court. The law is trite that a judgment of a court remains valid and binding until it is set aside by a competent court, usually on Appeal. See AYOADE VS. SPRINK BANK (2014) (PT 1396) 93 @ 127 B-C.

Learned counsel to the appellants submission that they were not parties to Suit No C/104/84 and therefore it can not bind them can not be true. The appellant had the option to appeal as an interested party not to file a fresh case as was in this case.
I therefore have no hesitation holding as did the lower court that the judgment in C/104/84 is binding on the appellant as a privy to the Cross River State Governor since the appellant derived title from the acquisition by the Cross River State Governor whose acquisition was nullified by the judgment in C/104/84 of 18th April, 1985 in favour of the 3rd Respondent.

The foregoing not with standing, joining the Attorney General of Cross River State and the Commissioner for Lands, the Nigerian Ports Authority had constructive notice which is binding on it. The Nigeria Ports Authority therefore had constructive notice and was bound by what affected the 1st and the 2nd Respondent as their grantor See GOLDMARK (NIG) LTD VS. IBAFON CO. LTD (2012) 10 NWLR (PT 1308) 291 @ 343 – 344 PARAS H-G.
Before I am done, I would like to place on record that the submission of learned counsel for the 3rd respondent regarding the case can not be faulted. I have read all the cases ranging from suit No. FHC/CA/27/2006; CHIEF DR. SAMA EKPO SAMA VS. NIGERIA PORTS AUTHORITY AND ORS TO CA/E/139/89, ROYAL NETHERLANDS HABOUR WORKS COMPANY B.V AND NIGERIA PORTS AUTHORITY VS. DR. SAMA EKPO SAMA AND SUIT NO. C/104/84 the cases are entirely different. There is none who gave title to or voided title of any person other than Suit No. C/104/84 which declared the acquisition of the Harbour village by the 1st and 2nd Respondent null and void.

By the forgoing judgment which is still subsisting the 3rd Respondent Dr. Sama Ekpo Sama is the authentic title holder of the Harbour village.
Having exhausted all the issues submitted to this court for adjudication, for the purpose of emphasizes starting from Appellants.

ISSUE 1: Which is whether learned trial Judge properly directed or misdirected himself when after holding that the issue for determination was the scope and exercise of revocation powers of Governor of Cross River State and still held that:

“the disputed land is still vested in the 3rd Defendant by suit No C/104/84 and not by virtue of subsequent revocation of 3rd Defendant’s title by the 1st and 2nd Defendant”

The simple answer is that the court can formulate issues and decide them even without calling on parties to address it on. This issue is answered against the Appellant.

ISSUE 2: As to whether learned trial Judge rightly or wrongly held that the Appellant is bound by the judgment in suit No C/104/84 notwithstanding that the Appellant was not a party to and was not aware of pendency of proceedings in the said Suit”

The issue is answered in the positive. By suing the 1st and 2nd Respondents, the Appellant has constructive knowledge of the pendency of the suit.

ISSUE 3: Is answer in the positive.

ISSUE 4: The appellant ought to have applied to appeal in the suit as an interested party even after the suit has been concluded.

All issues submitted by learned counsel for the 3rd Respondent is resolved in his favour.

Finally, I hold as did the Federal High Court that the disputed land is still vested in the 3rd Respondent by virtue of the valid and subsisting judgment of Calabar High Court in Suit No C/104/84; which judgment did not go on Appeal. This appeal is hereby dismissed.

I award the sum of N50,000.00 in favour of the 3rd Respondent.

ONYEKACHI AJA OTISI, J.C.A.: My learned Brother, Joseph Jude Jella, JCA, made available to me a draft copy of the Judgment just delivered, dismissing this appeal. I am in agreement with his reasoning and conclusions. I will only make few comments, for emphasis.

The Appellant raised four issues for determination. In Issue No 1, it was contended that the learned trial Judge, having identified the issue for determination as articulated by the Appellant, was estopped from going outside the identified issue for determination, and basing his judgment on a ground entirely different from the issue for determination which he had earlier identified.

The trial Judge said at page 314 of the Record of Appeal

…This Court has no difficulty in agreeing with the submissions of the Learned Senior Advance that the issue at stake in this action is not the title of the Plaintiff to the Land in dispute but whether the Governor of Cross River State is empowered under the Land Use Act to revoke the Plaintiff’s statutory Right of occupancy having regard to the fact that the Plaintiff as an Agency of the Federal Government and assuming that the Governor has such power. Whether the power was purportedly exercised and for a purpose recognized by the Land Use Act.

The learned trial Judge, at page 317 of the Record of Appeal, now held:

There is no doubt that under the Land Use Act, that where land is properly and legally acquired by the Governor of a State for overriding public purpose and vested in the Federal Government or any of its agencies that such land cannot subsequently be revoked/acquired by the State Government. But whereas in the instant case the acquisition of the disputed land by the State Government (i.e. the 1st Defendant herein) for the use and benefit of the Plaintiff had been adjudged by a court of competent jurisdiction to be null, void and of no effect, the question whether the Governor of Cross River State is empowered under the Land Use Act to revoke such a Plaintiff’s Statutory Right of Occupancy having regard to the fact that the Plaintiff is an agency of the Federal Government and whether such power was properly exercised and for a purpose recognized by the Land Use Act becomes mere (sic) academic.

In the case of Unity Bank Plc. V. Bouari (2008) 2-3 S.C. (PT.II) 1, the Supreme Court, per Ogbuagu, JSC, said:
Of course, it is now firmly settled that a court, can and is entitled to re-formulate issue or issues formulated by a party or parties or Counsel in order to give it precision and clarity. See the cases of
Okoro v. The State (1988) 12 S.C. 191; (1988) 12 SCNJ 191;
Latunde & Anor v. Bella Lajunfin (1989) 5 S.C. 59; (1989) 5 SCNJ 59;
Awojugbagbe Light Industries Ltd. v. P.N. Chinukwe & Anor (1995) 4 NWLR (Pt.390) 379; (1995) 4 SCNJ 162; Osunbiyi v. Ishola (1996) 6 NWLR (Pt.452) 12 at 24; (1996) 5 SCNJ. 143 and Lebile v. The Registered Trustees of Cherubim & Seraphim Church of Zion of Nigeria Ugbobla & 3 Ors. (2003) 2 SCM, 39; (2003) 1 SCNJ 463.
It is now firmly settled that the purpose of reframing issue or issues, is to lead to a more judicious and proper determination of an appeal. In other words, the purpose, is to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity. See the case of Musa Sha (Jnr) & Anor. V. Da Ray Kwan & 4 Ors. (2000) 5 SCNJ 101.

In the same vein, a trial court may reframe an issue or issues, as formulated by the parties, to lead to a more judicious and proper determination of the matter before it. The learned trial Judge herein first identified and resolved the issue of whether the Governor of Cross River State is empowered under the Land Use Act to revoke a Statutory Right of Occupancy over land properly vested in the Appellant, a Federal Government agency. The learned trial Judge then went on to address the real issue at the core of the controversy, which was whether or not the powers of the Governor of Cross River State under the Land Use Act to revoke a Statutory Right of Occupancy over land properly vested in the Appellant, a Federal Government agency, could be or were indeed affected by the subsisting decision in Suit No C/104/84 delivered by a court of competent jurisdiction, in respect of the land in dispute.
In the said C/104/84, the trial court had declared, inter alia, that the Notice of Revocation of the Right of Occupancy of the 3rd Respondent was void and of no effect, in that the said Notice was “indefinite, vague, ambiguous and uncertain with regard to the particular purpose. for which the property of the plaintiff was required(sic) …the purported revocation of the plaintiff’s right of occupancy over his said property was not for over-riding public interest as contemplated by Section 28 of the Land Use Act and is therefore void and of no effect…That the right of occupancy of the property reverts to the plaintiff who is declared entitled to take appropriate steps to evict any person from the said property and use same for his own purpose.”
In other words, there was no valid and effectual revocation of the plaintiff’s right of occupancy ab initio; the purported revocation being declared null and void. Following this judgment, the Statutory Right of Occupancy in favour of the 3rd Respondent over the land in dispute, was revalidated.
The matter submitted for adjudication before the trial court had its genesis in the ensuing revocation of the Statutory Right of Occupancy over the land in issue, which had already been granted in favour of the Appellant, a Federal Government agency by the Governor of Cross River State. The Learned Senior Advocate for the Appellant had argued that the revocation notice made no reference to the judgment in C/104/84 as the reason for its issue. In my view, the revocation notice need not give that detail. By that said judgment, the grant of the Right of Occupancy to the Appellant was held to have been founded on a null act. There was no appeal over that judgment. The subsisting position was therefore that the grant of any Right of Occupancy to the Appellant was grounded on nothing. The matter before the trial court for adjudication could not have been comprehensively resolved without frontally addressing the issue of the subsisting judgment in C/104/84. I would therefore resolve this issue against the Appellant.

The Appellant contended in Issue No 2 that it was wrong for the learned trial Judge to hold that they were bound by the judgment in C/104/84, because they were not parties to the suit. It was also contended in Issue No 4, that the trial Judge was wrong to have held that the Appellant ought to have applied to be joined in the said C/104/84 when they were not shown to have been aware of its pendency.

The learned trial Judge found at page 315 that:

From the affidavit evidence before the Court the Plaintiff has not denied being aware of Suit No C/104/84 but was content to stand by and allow the 1st Defendant herein to fight its battle in a litigation that fundamentally touches on its interest to its peril. The Plaintiff knew or ought to have known but chose to stand on the fence.

I see no reason to disturb this finding by the lower Court.

When a judgment has been pronounced by a court of competent jurisdiction, whether rightly or wrongly, it has the force of law; so long as it has not been set aside. In Amos v. Olatunji (2000) 2 S.C.9, Kalgo, JSC in his concurring opinion said:

There is no doubt at the time Exhibit 1 was made, it was not a valid decision as no court in Nigeria could validly entertain any chieftaincy matter under Section 161(3) of the 1963 constitution. But since that decision had not been set aside by any court of law in Nigeria, and Ilorin High Court being a court of unlimited jurisdiction, its judgment in Exhibit 1 is still valid and subsisting and should not be discountenanced, ignored or disobeyed. See Isaacs v. Robertson (1984) All E.R. 140 at 143; Rosek v. A.C.B Limited (1993) 8 NWLR (Pt.312) 382; Aladegbemi v. Fasanmade (1988) 3 NWLR (Pt.81) 129; Akinfolarin v. Akinnola (1994) 3 NWLR (Pt.335) 659 at 676-677.
In my humble view, upon becoming aware of the judgment in C/104/84, the proper course of action for the Appellant to have taken was to seek leave to appeal against the judgment as an interested party, under section 243 of the 1999 constitution, as amended. The option of bringing a fresh action by originating summons before a court of coordinate jurisdiction was not, in my respectful opinion, an option that would, as it were, heal the wound. That option would merely be skirting around the gnawing sore wound. The fundamental question is this – does a trial court have the necessary vires to either pronounce that a subsisting judgment of another court of coordinate jurisdiction was given in error, or, to otherwise reverse the decision? It most certainly does not. Imagine what chaos would result in the instant circumstance if the learned trial Judge proceeded to make a pronouncement that would undermine in any way the subsisting judgment in C/104/84. Only an appellate court is well positioned to upturn a subsisting judgment of a lower court. Until that is done, or until the subsisting judgment is otherwise set aside, it remains valid and binding.
An appeal against the judgment in C/104/84 was therefore the proper option for the Appellant, as an interested party, Enyibros Foods Processing Company Ltd. v. N.D.I.C. (2007) 3 S.C. (PT II) 175; Ademola v. Sodipo (1992) 7 SCNJ 417. This option would still hold even if the Appellant became aware of the judgment after the fact.
On the operation of issue estoppel, Karibi-Whyte, JSC made it clear in Udo v. Obot (1989) 1 S.C. (Pt. 1) 64:
It is important to emphasize the fact that the law is not that the issue of title in the current case should be substantially similar to the issue of title raised in the earlier case even if distinctly decided in the latter. Similarity of issues is not the thing. The issues distinctly decided to constitute estoppel in subsequent litigation must be identical – See Lawal v. Dawodu (1972) 1 ALL N.L.R. (Pt. 2) 270 at 282

See also: Fadiora v. Gbadebo (1978) 3 SC 219 228 – 229;
Adebayo v. Babalola (1995) 7 NWLR (Pt. 408) 383.
The issues that arose for adjudication in Appeal No CA/E/139/89, Royal Netherlands Harbour Works Co. B.V & Nigeran Ports Authority v. Dr. Sama Ekpo Sama (pages 69 – 90 of the Record of Appeal); in FHC/C/CS/27/2006, Chief (Dr) Sama Ekpo Sama v. Nigerian Ports Authority & Ors. (pages 31 – 36 of the Record of Appeal); and in C/104/84, Dr. Sama Ekpo Sama v. Attorney General of Cross River State & Anor (pages 106-122 of the Record of Appeal), were fundamentally different. Appeal No CA/E/139/89 arose from a claim for breach of contract in Suit No C/105/78. In suit No FHC/C/CS/27/2006, the plaintiff therein had sought compensation for compulsory acquisition of the land in issue. The trial court therein struck out the suit on the grounds that the proper parties were not before it and for want of jurisdiction. In C/104/84, the 3rd Respondent sought declaration that the purported revocation of his right of occupancy over the land in issue by the cross River State Government was null and void.
The subject matter may be the same but the issues that arose for determination in these matters were by no means the same. The ingredients to enable elevation to issue estoppel against the 3rd Respondent do not arise. I would therefore resolve Issue No 3 against the Appellant.
For these and for the fuller reasons in the lead Judgment, I also dismiss this appeal and abide by the Orders made in the lead Judgment, including the order as to costs.

PAUL OBI ELECHI, J.C.A.: I have had the privilege of reading the draft judgment just delivered by my Learned brother Joseph Jude Jella, JCA, dismissing the appeal. Having considered all the life issues in the appeal. I do not have anything to add. I am in complete agreement with his reasoning and conclusion. I also dismiss the appeal and abide by the consequential orders as to cost in the lead judgment.

Appearances

Taiwo Osipitan, SAN, I. E. Ikona with himFor Appellant

AND

Margarete Bassey SSC II,
C. O. Itan SC II FOR 1st and 2nd Respondents
T. O. Orunur for 3rd RespondentFor Respondent