CHIEF DONATUS IBOR OFEM v. OBOL DENNIS ONEN DAVID & ORS
(2016)LCN/8499(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 20th day of April, 2016
CA/C/335/2013
RATIO
COURT: DUTY OF COURT; WHETHER COURTS ARE ALLOWED TO APPROBATE AND REAPPROBATE CONCURRENTLY
What it appears to mean is that the trial Court is approbating and reapprobating of the same time which is not allowed in Law. See Ude v. Nwara (1993) 2 NWLR (Pt. 278) P.638. PER PAUL OBI ELECHI, J.C.A.
EVIDENCE: ESTOPPEL; NATURE OF ESTOPPEL
It is trite that where a Court of competent jurisdiction has settled by a final decision, the matters in dispute between the parties neither party or his privy may relitigate that issue again by bringing a fresh action. The matter is said to be res judicata. See Ogbogu & Ors v. Ndiribe & Ors (1992) NWLR (Pt. 235) 1992 LPELR-2283 (SC).
However, there are two kinds of this estoppel. The first is called cause of action estoppels while the second is known as issue estoppels.
For a party to successfully invoke res judicata or the cause of action estoppels, namely estoppels per rem judicatum, it must be shown that the parties, the cause of action and the res (subject matter) are the same in the earlier as well as the case before the Court in which the plea is raised.
In Ezewani v. Onwordi (1986) 4 NWLR (Pt. 33) 27, the Supreme Court of Nigeria hold that issue estoppels applies to preclude a party from contending the contrary or opposite of any specific point which having once been distinctly put in issue has with certainty and solemnity been determined against him. PER PAUL OBI ELECHI, J.C.A.
ACTION: LOCUS STANDI; THE DOCTRINE OF LOCUS STANDI
There is a long line of authorities on the subject of locus standi or standing to sue and the general principle is that for a person to have a locus standi either to institute an action or prosecute an appeal, he has to show that he has special interest, that the interest is not vague or intangible, supposed or speculative or that it is not an interest which he shaves with other members of society. He also has to show that such interest has been adversely affected by the act or omission which he seeks to challenge.
The case of Senator Abraham Ade Adesana v. The President of the Federal Republic of Nigeria & Anor (1981) 2 NCLR 358 sums up the Law. Fatayi Williams CJN (as the then was) said on page 372 “the term locus standi denotes legal capacity to institute proceedings in a Court of Law. It is used interchangeably with terms like standing or title to sue…”
And Bello, JSC (as he then was) on page 380 defined the expression thus:
“Locus standi or standing may be defined as the right of a party to appear and be heard on the question before any Court or Tribunal?”
Obaseki, JSC (as he then was) on page 390 of the same report said.
Locus standi or standing to sue is an aspect of justiciability and as such the problem of locus standi is surrounded by the same complexities and vagaries inherent justiciability. The fundamental aspect of locus standi is that it focuses on the party seeking to get his complaint before the High Court not on the issue he wishes to have adjudicated. And Uwais, JSC opined and warned thus:
“It is of paramount importance and indeed most desirable to encourage citizens to come to Court in order to have the Constitution interpreted. However this is not to say, with respect that meddlesome interlopers, professional litigants or the like should be encouraged to sue in matters that do not directly concern them. In my view, to do that is to open the blood gate to frivolous and vexations proceedings. I believe that such latitude is capable of creating undersirable state of affairs.”
The facts of the Adesanya case briefly are that Abraham Adesanya a senator in the 2nd Republic, after losing a battle on the floor of the senate, filed an action in the High Court against the President of the Federal Republic of Nigeria, and Hon. Justice v. Ovie-Whiskey challenging the appointment of the later by the former as chairman of the Federal Electoral Commission and alleging that the appointment violated certain provisions of the Constitution. The High Court granted him the reliefs he sought and on appeal, the questions of Adesanya’s locus standi to institute the action was raised for the first time. The question was referred to the Supreme Court to answer. The reference was subsequently converted into an appeal and the Supreme Court unanimously held that Adesanya, in the peculiar circumstances of the case has no locus standi in the first instance. Applying all these principles to the instant issue on appeal, I am of the considered view that the 1st Respondent has no locus standi in this matter. PER PAUL OBI ELECHI, J.C.A.
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
Between
CHIEF DONATUS IBOR OFEM Appellant(s)
AND
1. OBOL DENNIS ONEN DAVID
2. ATTORNEY-GENERAL OF CROSS RIVER STATE
3. SPECIAL ADVISER ON CHIEFTAINCY & POLITICAL AFFAIRS, CROSS RIVER STATE
4. YAKURR TRADITIONAL RULERS COUNSEL Respondent(s)
PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Honourable Justice Eyo E. Ita of Cross River State holding at the Ugep Judicial Division. The Suit giving rise to his appeal was initiated by the 1st Respondent via an Originating Summons filed on the 18th of July, 2011 with the Appellant as 1st Defendant and the 2nd ? 4th Respondents as 2nd – 4th Defendants.
Upon service of the Originating processes on the Appellant, he entered a conditional appearance and filed a Counter Affidavit contesting the merits of the case. The Appellant in lieu of demurer also filed a Motion on Notice questioning inter alia the locus standi of the 1st Respondent and also raised against the suit, the doctrine of estoppels per res judicata on the basis of a Calabar High Court Judgment in C/490/96 and Obubra High Court Judgment in HB/2/2000. The 1st Respondent on the other hand filed an objection against the Appellants Motion in objection. The objections and the main action were consequently heard together on 16th July, 2013 and on the 18th of July, 2013, defendants thus “the trial Court found and
1
adjudged in favour of the claimant has no locus standi to institute this action against the 1st Defendant and other Defendants …”This objection is sustained and the Originating Summons is in consequence dismissed.” Even after judgment upholding the objection of the Appellant, the Learned trial Judge made an order of injunction against the Appellant.
Dissatisfied with the said order of injunction, the Appellant filed a Notice of Appeal on the 15th August, 2013 with three Grounds of appeal incorporated thereto.
To argue the appeal, two issues were distilled for determination:
1. Whether the Learned trial Judge was not in error of Law to have ordered injunction either “for the benefit of the whole world” or otherwise against the Appellant after dismissing the 1st Respondent’s action?” (Ground 2).
2. In the face of the 1st Respondent reliefs 9, 10 and 11 at the trial Court, whether the Court’s injunctive order restraining the Appellant’s from parading himself as Obol Lopon of a non-existent Ekori if that will leave the society in peace.” Was apt? (Ground 1 & 3).”
It may be recalled that the 1st Respondent was deposed as
2
village Head of Ukweze and Clan Head of Epenti in Ekori community of Ekori Group of Clans in the Yakurr Local Government Area of Cross River State which village and Clan he comes from. On the other, the Appellant comes from Ukpawen village and Lekpankom Clan still in Ekori Community or Ekori Group of Clans in the Yakurr Local Government of Cross River State where he is the certificated village head and Clan Head, Ukpawen village and Lekpankom Clan were both created by the Cross River State (Clans creations) Law No. 1 of 1996 as replicated at A152 S/No. 13 item 23 of the said Law.
Historically and traditionally according to Learned Counsel, what now constitutes Ekori group of Clans was just one community headed by a traditional Ruler called OBOL LOPON OF EKORI. With the enactment of the Cross River State (Clans Enactment Law No. 1 of 1966, Ekori Community was divided into a number of villages and Clans with its people still acknowledging and recognizing the holder of the traditional stool of Obol Lopon of Ekori as the overall head. Since 1996, there hove been different phases of disputes between the Appellant and 1st Respondent over that stool of Obol
3
Lopon of Ekori and in the process and of the instance of the 1st Respondent, Agube J. (as he then was) in Suit No. HB/2/2000 had held consequent upon the Cross River State (Clans creation) Law that the traditional stool of Obol Lopon of Ekori is unknown to Law. Also in the cause of the spate of litigations between the Appellant and 1st Respondent, there was the 1st Respondent action in Suit No. C/490/96 that ended in a dismissal of his claim over that stool of the Obol Lopon of Ekori.
With the background of the above that the 1st Respondent initiated the present action at the Court below seeking reliefs not only on the subject of Obol Lopon of Ekori but over Ukpawen village and Lekpankom Clan Headship where the 1st Respondent does not come from and was without any scintilla of right or interest.
Having considered the Preliminary Objection of the Appellant, the action of the 1st Respondent was dismissed but the Court ordered injunction – “for the benefit of the whole world” against the Appellant.
In arguing issue No. 1 which is whether the Learned trial Judge was not in error of Law to have ordered injunction either for the benefit of
4
the whole world” otherwise against the Appellant after dismissing the Appellant’s action, Learned Appellant’s Counsel stated that the relief of injunction may be granted even suo moto by the Court through the right, the existence and the establishment of a right to a substantive relief is of course a sine qua non. The relief of injunction are granted to protect the right adjudged in favour of the party in whose benefit the order is made. See Oluwole v. Abubahare (2004) All FWLR (Pt. 226) 289 at 301; A.G. Kwara State v. Alao (2000) 9 NWLR (Pt. 671) 84 at 101, Rector, Kwara Polytechnic v. Adefila (2008) All FWLR (Pt. 431) 914 at 969.
In the instant matter an appeal, the trial Judge found that the 1st Respondent was without right or interest to seek or establish on the matters of the reliefs sought and therefore no locus standi to institute the action against the Appellant and in consequence dismissed the action in its entirety. In addition, there was no existing, vested or established right or interest the protection of which the injunctive order made by the trial Court was aimed at. Also the injunction as ordered was not ancillary or consequential to
5
the Ruling or Judgment dismissing the Appellant’s action in its entirety.
In taking his argument and submission further, the Learned Appellant’s Counsel contended that the 1st Respondent action whether in relation to Ukpawen village and Lekpankom Clan headship was a personal action or the Obol Lopon of Ekori, was an action in personem. To him, it was a personal action by the 1st Respondent against the Appellant as a person. It therefore follows that if the 1st Respondent had failed in that his action against the Appellant and it is legally inapt to order injunction for the benefit of the 1st Respondent, it remains inequitable and legally wrong to have the same order of injunction made either “for the benefit of the whole world” which includes the 1st Respondent.
Learned Counsel finally urged the Court to hold that the trial Judge was in error in Law to have made an order injunction after dismissing the 1st Respondent’s action. He then urged the Court to resolve this issue in favour of the Appellant.
On Issue No. 2 which is on “in the face of the 1st Respondent’s reliefs 9, 10, and 11 of the trial Court, whether the Court’s injunctive
6
order restraining the 1st Defendant from parading himself as Obol Lopon of a non-existent Ekori, if that will leave the society in peace” was apt, Learned Appellant Counsel contended that the community reading of claims 9, 10 and 11 and the conclusion arrived by the Learned trial Judge that they mean that the Appellant be restrained from parading himself as the Obol Lopon of Ekori is misdirected and misconceived as none of the claims in 9, 10 and 11 is that the Appellant should be restrained from parading himself as Obol Lopon as found by the Court.
Worse still is that there is no evidence before the trial Court that it is by the Appellant parading himself as the Obol Lopon of Ekori that society has no peace. Rather, it is the monopoly claimed by the 1st Respondent that he alone parade himself as the Obol Lopon of Ekori and that he should be allowed to continue to parade himself even after the finding at his instance by Agube J. (as he then was) in Suit No. HB/2/2000. That the traditional stool of Obol Lopon of Ekori is unknown to Law and his action in Suit No. C/490/96 over the same stool of the Obol Lopon of Ekori ended in a dismissal.
7
The trial Judge was merely driven by the passion and sentiment that the injunctive order if made will bring about peace not knowing that societal peace can easily be attained by justice according to Law. He then urged the Court to resolve this issue in favour of the Appellant and to hold that the trial Court order of injunction against the Appellant was inapt and the Court to set aside the injunctive order and allow the appeal.
The 2nd – 4th Respondents did not file any appeal against the Judgment of the Lower Court delivered on the 18th day of July, 2013 but relies on the Appellant’s Brief of Argument for the determination of this appeal.
In his Cross-Appeal, the cross-appellant filed a cross-appeal against the Ruling of the High Court of Cross River State of Nigeria, Ugep Judicial Division, presided over by Hon. Justice Eyo Effiom Ita dated the 18th July, 2013 striking out Suit No. HUG/14/2011 on the ground that the Cross Appellant had no locus standi to institute the action.
The Cross-Appellant filed his Notice of Cross-Appeal after Leave was granted by the Court of Appeal on the 4th November, 2014. From the two grounds of the Notice of
8
Cross-Appeal, the Cross-Appellant has distilled two issues for determination thus:
(1) Whether the Learned trial Judge was correct when he held that Cross-Appellant was estopped from instituting the Suit in view of the finding of Agube J. (as he then was) in Suit No. HUG/30/2000 that Ekori does not exist in Law or is unknown to Law?
(2) Whether the Learned trial Judge was correct when he held that the Cross-Appellant had no locus to institute the action?
In arguing issue No. 1 above, Learned Cross-Appellant submitted that the Learned trial Judge was wrong when he held that the Cross-Appellant was stopped from instituting this action in the face of the finding in the Judgment of Agube J. (as he then was) in Suit No. HB/2/2000 (HUG/30/2000) that Ekori does not exist in Law. The findings of the Learned trial Judge according to Learned Counsel was not based on the evidence before him because it is perverse and liable to be set aside by the Appellate Court. What is in issue is not really a Judgment as contended by the Learned trial Judge is not a Judgment but a Ruling of the High Court of Cross River State, Ugep Judicial Division dated 31st
9
July, 2000 in Suit No. HUG/30/2000 which was premised on a Motion on Notice filed by the Cross Appellant praying the Court for the following reliefs.
(a) An Order discharging or vacating aside the interim order of injunction made on the 11th day of January, 2000.
(b) An order striking out this Suit for want of jurisdiction.
(c) Any further order(s) as the Court may deem fit to make in the circumstances of this case.
Learned Counsel then stated that in spite of the Ruling of the Court as per the Motion above, it is difficult to comprehend how the Learned trial Judge changed the Ruling in Suits No. HB/2/2000 and HUG/30/2000 into a Judgment that influenced his Judgment and to find that the Cross-Appellant was stopped from instituting this action because of the findings of Agube J. in Suit No. HB/2/2000 that Ekori does not exist of Law was a wrong finding in Law.
Learned Cross-Appellant Counsel submitted that the afore findings of the trial Judge was not based on evidence before him because what was called a Judgment by the Court was actually a Ruling delivered on the 31st July, 2000 in Suit No. HUG/30/2000 as could be seen from
10
the Records at page 206. The said Ruling was predicated on a Motion on Notice filed by the Cross-Appellant in Suit No. HUG/30/2000 praying the Court for the following reliefs.
(1) An order discharging or vacating or setting aside the interim order of injunction made on the 11th January, 2000 and
(2) An order striking out the Suit for want of jurisdiction.
(3) Any further order(s) as the Court may deem fit and proper to make in the circumstance of the case.
Learned Cross Appellant’s Counsel then wondered how the Learned trial Judge changed the Ruling in Suit No. HB/2/2000 (HUG/30/2000) into a Judgment and used it as the plank to find that the Cross Appellant was stopped from instituting this action because of the findings of Agube J. that Ekori does not exist in Law.
Learned Cross-Appellant Counsel then submitted that whatever Ruling, Judgment, or decision of the Court in the above Suits (HB/2/2000 (HUG/30/2000) cannot operate against the Cross-Appellant as an estoppels relying on Section 59 of the Evidence Act. The reason being that the Ruling did not determine the rights and obligations of the parties to the Suit being an
11
interlocutory Ruling.
In his further submission, Learned Cross Appellant Counsel submitted that the circumstances of this matter involves an issue estoppels or estoppel inter-parties which does not call for the type of reasoning by the trial Judge. Even what the Learned trial Judge relied to sustain the doctrine of issue estoppel is not a final decision. As on interlocutory Ruling, it did not determine the rights of the parties and the Ruling was not given based on the merits of the case. See Kossen (Nig.) Ltd v. Savannah Bank of Nig. Ltd (1995) 12 SCNJ 29 at 40, (1995) 9 NWLR (Pt. 420) 439, Commerce Assurance Ltd. v. Buraimoh Alli (1992) 4 SCNJ 154 at 253 (1992) 6 NWLR (Pt. 246) 132, Ebba v. Chief Warri Ogodo (2000) 10 NWLR (Pt. 675) 387.
For an interlocutory decision to operate as on issue estoppels, it must have been directly raised and distinctly determined as in Mackson Ikeni v. Chief William Akuma Efano (2001) 10 NWLR (Pt. 720) 1 at 11.
The Ruling of Agube J. in Suit No. HUG/30/2000 was the result of an application for the Court to vacate an interim injunction and an objection to the Court’s jurisdiction based upon affidavit
12
evidence which had not been tested by oral cross examination and the issue of whether or not the stool of the Obol Lopon of Ekori was non-existent or not or recognized by Law could not have been directly raised and distinctly determined as to constitute an issue properly contested and decided as between the parties.
More importantly also is that the decision contained in the Ruling of Agube J. did not have any legal force according to Learned Counsel because it was eventually struck out. See Urua Achiakpa v. Joshua Nduka (2001) 14 NWLR (Pt. 734) 623 at 632, Atungwu v. Ochekwu (2000) 1 NWLR (Pt. 641) 507 at 517, Oyede v. Olusesi (2005) 16 NWLR (Pt. 951) 341.
In the light of the above, Learned Cross-Appellant Counsel urged the Court to resolve this issue in their favour.
On issue No. 2 of the Cross-Appellant brief of argument, that is as to whether the Learned trial Judge was correct when he held that the Cross-Appellant had no locus standi to institute the action?, the Learned Cross Appallant Counsel contended that it appears that the Learned trial Judge glossed over the reliefs sought by the Cross-Appellant in is Originating Summons
13
otherwise he could not have decided that the Cross Appellant has no locus standi in the case, yet, the Learned trial Judge still turned round to find that the Cross-Appellant’s relief No. 9, 10 & 11 of his Originating Summons were proper and apt. The Lower Court he submitted cannot approbate and reprobate at the same time. See: Ikeanyi v. A.C.B (1991) 7 NWLR (Pt. 205) 626, Ajide v. Keloni (1985) 3 NWLR (Pt. 12) 248.
The crux of the Cross-Appellant’s case as can be gleaned from both the Originating Summons and the supporting affidavit is that while his case instituted in the High Court in Suit No. HUG/8/2010 was pending; the 2nd & 3rd Respondent in a frenzy and desperate bid to over-reach the Cross-Appellant’s case hurriedly issued a Certificate of Recognition to the 1st Respondent as the village Head of Ukpawen and Clan Head of Lekpankom with the title of Obol Lopon of Ekori.
On whether the Cross-Appellant has the locus standi to maintain the action, Learned Appellant’s Counsel answered the question in the affirmative as could be seen by scrutinizing the Statement of Claim.
The Reliefs sought by the Cross-Appellant in his
14
Originating Summons shows that the relies sought by the Cross-Appellant was claiming were for his own personal benefit. The Cross-Appellant’s aim for instituting the case was to prevent the 2nd & 3rd Respondents from using subterfuge to render Otiose the benefit the Cross-Appellant would have had in Suit No. HUG/8/2010. Learned Cross-Appellant Counsel stated that despite the fact that the Learned trial Judge had held that the Cross-Appellant did not have locus standi, he turned round to hold that reliefs No. 9, 10 & 11 of the Cross-Appellant’s Originating Summon were apt and proper and accordingly restrained the 1st Respondent from parading himself as the Obol Lopon of Ekori. According to Learned Counsel, if the Cross-Appellant did not have locus standi, how then can Reliefs Nos. 9, 10 & 11 of his Originating Summons be said to be apt and proper? If the Cross Appellants had the locus standi to seek reliefs 9, 10 & 11 of his Originating Summons, it therefore means that he had the locus standi to institute the action in the first place. The said findings of the trial Court he submitted is perverse, erroneous and liable to be set aside by the
15
Appellate Court. See: Wolucham v. Gudi (1981) 5 S.C. 291 at 295, Ebba v. Ogodo (1984) 1 SCNLR 372 at 378. He then urged the Court to set aside the finding of the Learned trial Judge that the Cross Appellant has no locus standi to institute the action.
In concluding his argument in the brief of argument filed by the Learned Cross-Appellant’s Counsel then called on the Court to use its Appellant jurisdiction under Section 15 of the Court of Appeal Act 2004 and assume the powers of the Court below and determine the Originating Summons filed by the Cross-Appellant and grant all the reliefs sought by the Cross-Appellant in line with the authorities of Jadesimi v. Okotie-Eboh (1986) 1 NWLR (Pt. 16) 264 and Okoyo v. Santili (1990) 2 NWLR (Pt. 130) 172 at 207. He then urged the Court to resolve this issue in their favour and allow the Cross-Appeal.
In reply, the 1st Cross-Respondent brief of argument distilled two issues for determination thus:
(1) In the face of a subsisting Ruling in Suit No. HB/2/2000 and the Judgment in C/490/96, whether the Judgment of the trial Court that the Cross-Appellant was estopped from initiating the action on appeal
16
claiming the title of “Obol Lopon of Ekori” is wrong?
(2) Being that the Cross-Appellant is not a person interested or claiming to be interested in the Headship of Ukpawen village and headship of Lokpankom Clan, whether the Judgment of the trial Court that he was without locus standi to institute the action on appeal is inapt?
In respect of issue No. 1 above on whether the Cross-Appellant was stopped from initiating the action on appeal claiming the title of Obol Lopon of Ekori’ is wrong, Learned 1st Cross Respondent Counsel there upon submitted that the Judgment of the trial Court is a Judgment founded on a subsisting Ruling in Suit No. HB/2/2000 per Agube, J (as he then was) that “Ekori” does not exist of Law and that the title of Obol Lopon of Ekori was not cognizable by the Traditional Rulers Low or the claims creation Law and therefore non justiciable. Also Learned 1st Cross Respondents Counsel also contends that the first cross respondent that there existed also another subsisting Judgment in Suit No. C/490/96 dismissing the claim of the Cross Appellant over the title of the “Obol Lopon of Ekori”. These subsisting Judgments go to show that
17
the Judgment of the Lower Court that the Cross Appellant was estopped from initiating the action on appeal claiming the title of the “Obol Lopon of Ekori” and the consequent order dismissing the action is apt. The Lower Court’s decision that the Cross Appellant lacked the locus standi to initiate the action on appeal was driven by the Cross Appellant’s manifest lack of interest, absence of a justiciable right, want of Civil right and obligation that could be or were in jeopardy of violation and even overt non claim of entitlement to the Headship Ukpawan village and headship of Lokpenkom Clan.
It is on the basis of the above that Learned 1st Cross-Respondent urged the Court to resolve all the issues against the Cross Appellant and in favour of the 1st Cross-Respondent and to dismiss the appeal in its entirety.
From the submissions of both Counsels, it appears that two issues appear germane for the determination of this appeal on its merit viz.
1. Whether the Learned trial Judge was not wrong in Law to have ordered injunction either “for the benefit of the whole world” or otherwise against the 1st Defendant/Appellant after dismissing the
18
claimant 1st Respondent’s action.” This issue is formulated from ground 2 of the notice of appeal.
2. Whether the Learned trial Judge was correct when he held that the Cross Appellant was estopped from instituting the Suit in view of the finding of Agube, J (as he then was) in Suit No. HUG/10/2000, that Ekori does not exist in Law or is unknown to Law and also that the Cross Appellant has no locus standi to institute the action.
It is Learned Appellants submission that though injunction can be granted suo moto by the Court, but the establishment of a vested or established right to the substantive relief is a sine qua non. Such injunctive orders are granted to protect the right adjudged in favour of the party in whose benefit the order was made. See Oluwole v. Abubakare (2004) All FWLR (Pt. 226) 289 at 301.
From the records in this action there has been series of litigations between the Appellant and the 1st Respondent one of such was the 1st Respondents Suit in C/490/96 which ended in a dismissal of the Suit over the 1st Respondents claim to the stool of Obol Lopon of Ekori.
Thereafter, the 1st Respondent instituted another action
19
in the Court below seeking reliefs not only on the subject of Obol Lopon of Ekori but over Ukpawen village and Lokpankom Clan Headship even though he does not come from there nor have any interest thereon.
However, on a Preliminary Objection of the Appellant, the said action of the 1st Respondent was dismissed but the Court made an order of injunction for the benefit of the whole world against the Appellant.
As stated earlier, even though the Court can suo moto order injunction but in this case, there was no interest or protection which the injunctive order was aimed at nor was it ancillary or consequential to the Ruling or Judgment dismissing the Appellants action in its entirely. Therefore, it was wrong on the part of the trial Judge to have made an order of injunction against the whole world which by implication includes the 1st Respondent.
What it appears to mean is that the trial Court is approbating and reapprobating of the same time which is not allowed in Law. See Ude v. Nwara (1993) 2 NWLR (Pt. 278) P.638.
?It is on the basis of the above that I tend to agree with the Appellant Counsel’s submission that the Learned trial
20
Judge was in error to have ordered injunction either “for the benefit of the whole world” or otherwise against the Appellant for dismissing the Claimant/1st Respondent action. In view of the above, I hereby resolve issue No. 1 in favour of the Appellant and against the Cross Respondent.
On issue No. 2, that is whether the Learned trial Judge was correct when he held that the Cross Appellant was stopped from instituting the Suit in view of the finding of Agube, J (as he then was) in Suit No. HUG/30/2000 that Ekori does not exist in Law.
It is trite that where a Court of competent jurisdiction has settled by a final decision, the matters in dispute between the parties neither party or his privy may relitigate that issue again by bringing a fresh action. The matter is said to be res judicata. See Ogbogu & Ors v. Ndiribe & Ors (1992) NWLR (Pt. 235) 1992 LPELR-2283 (SC).
However, there are two kinds of this estoppel. The first is called cause of action estoppels while the second is known as issue estoppels.
For a party to successfully invoke res judicata or the cause of action estoppels, namely estoppels per rem judicatum, it
21
must be shown that the parties, the cause of action and the res (subject matter) are the same in the earlier as well as the case before the Court in which the plea is raised.
In Ezewani v. Onwordi (1986) 4 NWLR (Pt. 33) 27, the Supreme Court of Nigeria hold that issue estoppels applies to preclude a party from contending the contrary or opposite of any specific point which having once been distinctly put in issue has with certainty and solemnity been determined against him.
There is no doubt and this is not in dispute, that the parties and the cause of action in the present proceedings are the same as in the earlier proceedings in Suit No. HB/2/2000 Suit No. C/490/96 and HUG/30/2000 over the same stool of Obol Lopon of Ekori which ended in a dismissal.
Before considering the eligibility of the Cross Appellant to institute the Suit, it may be necessary to take cognizance of the two Suits. No. HB/2/2000 and HUG/30/2000 which says that Ekori does not exist in Law as per Agube J (as he then was) According to Cross Appellant the findings of the trial Judge in those Suits were not based on evidence before the Court and as such, it is perverse
22
and liable to be set aside by the Appellate Court. To him in his contention what was delivered by the Court is not a Judgment but a Ruling premised on a Motion whether a Judgment or a Ruling, it is a Judgment founded on a subsisting Ruling in Suit No. HB/2/2000 per Agube J (as he then was) that ‘Ekori’ was not cognizable by the Traditional Rulers Law or the Clan creation Law and therefore non justiciable. Even the Suit filed by the 1st Respondent in Suit No. C/490/96 dismissing the claim of the Cross Appellant is still a subsisting Judgment over the title of Obol Lopon of Ekori. With the above set of Judgments; the Lower Court had no option than to order that the Cross Appellant was estopped from initiating the action on appeal claiming the title of Obol Lopon of Ekori.
It is on the basis of the above that the Lower Court held that the Cross Appellant lacked the locus standi to initiate the action on appeal in the presence of lack of interest, absence of justifiable right, want of civil right and obligation that could be or were in jeopardy of violation and even overt non claim of entitlement to the headship of Ukpawen village and headship of Lekpankom
23
Clan.
There is a long line of authorities on the subject of locus standi or standing to sue and the general principle is that for a person to have a locus standi either to institute an action or prosecute an appeal, he has to show that he has special interest, that the interest is not vague or intangible, supposed or speculative or that it is not an interest which he shaves with other members of society. He also has to show that such interest has been adversely affected by the act or omission which he seeks to challenge.
The case of Senator Abraham Ade Adesana v. The President of the Federal Republic of Nigeria & Anor (1981) 2 NCLR 358 sums up the Law. Fatayi Williams CJN (as the then was) said on page 372 “the term locus standi denotes legal capacity to institute proceedings in a Court of Law. It is used interchangeably with terms like standing or title to sue…”
And Bello, JSC (as he then was) on page 380 defined the expression thus:
“Locus standi or standing may be defined as the right of a party to appear and be heard on the question before any Court or Tribunal?”
Obaseki, JSC (as he then was) on page 390 of
24
the same report said.
Locus standi or standing to sue is an aspect of justiciability and as such the problem of locus standi is surrounded by the same complexities and vagaries inherent justiciability. The fundamental aspect of locus standi is that it focuses on the party seeking to get his complaint before the High Court not on the issue he wishes to have adjudicated. And Uwais, JSC opined and warned thus:
“It is of paramount importance and indeed most desirable to encourage citizens to come to Court in order to have the Constitution interpreted. However this is not to say, with respect that meddlesome interlopers, professional litigants or the like should be encouraged to sue in matters that do not directly concern them. In my view, to do that is to open the blood gate to frivolous and vexations proceedings. I believe that such latitude is capable of creating undersirable state of affairs.”
The facts of the Adesanya case briefly are that Abraham Adesanya a senator in the 2nd Republic, after losing a battle on the floor of the senate, filed an action in the High Court against the President of the Federal Republic of Nigeria, and Hon.
25
Justice v. Ovie-Whiskey challenging the appointment of the later by the former as chairman of the Federal Electoral Commission and alleging that the appointment violated certain provisions of the Constitution. The High Court granted him the reliefs he sought and on appeal, the questions of Adesanya’s locus standi to institute the action was raised for the first time. The question was referred to the Supreme Court to answer. The reference was subsequently converted into an appeal and the Supreme Court unanimously held that Adesanya, in the peculiar circumstances of the case has no locus standi in the first instance. Applying all these principles to the instant issue on appeal, I am of the considered view that the 1st Respondent has no locus standi in this matter.
What is more so for is that there is no appeal in the Judgments/Ruling above, I hereby resolve this issue in favour of the Appellant and against the cross Appellant even though as contended by the Cross-Appellant that the Ruling did not determine the rights and obligations of the parties in the Suit being an interlocutory Ruling.
?
I have considered the findings of the trial Judge in its
26
entirety. It must be noted that the evaluation of evidence and the ascription of probative value to the evidence are the primary duties of the trial Judge which had the opportunity of seeing hearing and assessing the evidence on record. In this appeal, the trial Court properly evaluated the evidence before it and therefore its findings are not perverse in my humble view. This is also not withstanding whether or not reliefs No. 9, 10 & 11 of the Cross Appellant’s Originating Summons were apt and proper as herein before submitted by Cross Appellant Counsel. As a result, this Court will not interfere with the findings of the trial Court.
In the final analysis, I shall and hereby resolve all the issue against the Cross-Appellant and in favour of the Appellant and 1st Cross Respondent. The Cross-Appeal fails and it is hereby dismissed.
I order cost of N50,000.00 against the Cross Appellant.
CHIOMA NWOSU-IHEME, J.C.A.: I had the advantage of reading before now the judgment delivered by my Learned brother, P. O. ELECHI, JCA.
I adopt the facts of this case as properly set down in the leading judgment. I
27
totally agree with the reasoning and conclusion.
I abide by the order as to costs made by ELECHI, JCA, in the leading judgment.
ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read in advance, a draft copy of the lead Judgment I this appeal just delivered by my learned Brother, Paul Obi Elechi, JCA. I am in complete agreement with his reasoning and conclusion in allowing the appeal and dismissing the cross-appeal.
I adopt his reasoning as mine and abide by the orders in the leading Judgment, including the orders as to costs.
28
Appearances
T. B. Isuwa, Esq.For Appellant
AND
I. U. Mgbe, Esq. for 1st and 3rd Respondents
B. U. Bassey, Esq. for 2nd – 4th RespondentsFor Respondent
