ALFA LANRE HAMANDA & ORS v. SAADU OJUEKUN
(2018)LCN/11836(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of July, 2018
CA/IL/85/2017
RATIO
COURT AND PROCEDURE: ESTOPPEL PER REM JUDICATA
“Estoppel per rem judicatam or estoppel of record arises where an issue of fact has been judicially determined in a final manner between parties by a Court or Tribunal having jurisdiction, concurrent or exclusive in the matter and the issue comes directly in question in subsequent proceedings between the parties or their privies. Thus, the parties affected are estopped from bringing a fresh action before any Court on the same case and on the same issue already pronounced upon by the Court in a previous action. See: OSUNRINDE VS. AJAMOGUN (1992) 6 NWLR (PT. 246) 156;
IGWEGO VS. EZEUGO (1992) 6 NWLR (PT. 249) 561; DOKUBO VS. OMONI (1999) 8 NWLR (PT. 616) 647; OSHODI VS. EYIFUNMI (2000) 7 SC (PART 11) 145.” PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
Between
1. ALFA LANRE HAMANDA
2. USMAN OLORI
3. ALFA ABDULGANIYU QUAZE
4. RASAQ BOLAJI
5. TUNDE GUDU Appellant(s)
AND
SAADU OJUEKUN Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment):
This is an Appeal against the decision/ruling of the Kwara State High Court, Ilorin Judicial Division in Suit No. KWS/44M/2012 presided over by Hon. Justice M. A. Folayan delivered on 17/01/2017. In the said Ruling, the learned trial Judge dismissed the application dated and filed on 04/07/2016 which challenged the competence, jurisdiction of the Court to entertain the committal proceeding initiated by the Respondent against the Appellants.
By reason of Judgment in Suit No. UACL/CV.2/74 between SAADU OJUEKUN VS. KURANGA AKANBI AND AMINU AKANO, the Respondent’s family obtained Judgment for title over a vast parcel of land located within an area called Oke Moro and Odo – Weru in Asa Local Government Area of Kwara State against the appointed Caretaker Families namely: Kuranga Akanbi and Aminu Akano.
At the commencement of the said Suit No. UACL/CVF/2/74 the first 1st Defendant therein i.e. Kuranga Akanbi conceded to the Respondent?s Family claim to title while the 2nd Defendant therein Aminu Akano contended the case to the Supreme Court where their Appeal was eventually dismissed.
When the Appellants as Respondents were served with committal proceeding for failure to comply with an order to vacate the land, MALLAM ISIAKA AJAO and MALLAM MOHAMMED A. A. MAGAJI claiming as MAGAJIs of Alalubosa and Asunnara Families, who are the Landlords of the present Appellants brought an application to be joined as parties to the committal application, the application was refused by the Court below on 18/12/2004.
On the said application for joinder of the said Landlords of the Appellants, the learned trial Judge held inter alia on Pages 257 to 258 of the Record that:
”It is in evidence before this Court that the case was fought up to the Supreme Court. By Exhibits A and B attached to the Applicants affidavit in support to this motion the two Applicants/Mogajis have sold and transferred the land to the Respondents in the committal proceeding. By Exhibits A and B, the legal titles of the land now reside in the 10 Respondent (sic) 10 persons the Respondent found in occupation of the adjudged land. I therefore agree with the learned Counsel for the Respondent (Ojuekun Saad) that having sold the land as attested to by Exhibits A and B the interests of the Applicants have been extinguished.
The enforcement order of the Judgment for possession of the adjudged land should be between the judgment creditor and the alleged illegal occupants of the land. The matter between the Respondent, herein and the Applicants’ families had already been settled at the Upper Area Court, High Court, Court of Appeal and the Supreme Court which struck out the Applicants’ appeal for failure to prosecute same. I also agree with the Respondent’s Counsel that a committal proceeding is a quasi criminal proceeding, their culpability will stem out of their disobedience to the order of the Court served on them. Those who were not served with the enforcement order of the Court cannot be in disobedience of the order. It is the acts of disobedience to the order of the Court served on the occupants of the adjudged land that brings about the committal proceedings or application.
I do not agree with the argument of the learned Counsel for the Applicants that because the Applicants are the owners of the lands connected to the adjudged land that should make them necessary parties to the committal proceedings.”
And concluded at the said Page 258 of Record that:
”I therefore do not consider the Applicants as necessary parties who can be joined in this committal proceeding. I hold that this application is misconceived and it is hereby refused.”
Upon refusal of the application for joinder, Mallam Mohammed Magaji instituted a case in Suit No. KWS/123/2015 while Mallam Isiaka obtained an order for joinder of the Respondent?s Family in Suit No. KWS/20M/2011 as Claimant therein.
The Appellants then filed preliminary objection on 04/07/2016 challenging the competence of the Court to commence proceedings against the Respondents.
The said Notice of Preliminary Objection and the Grounds for the Application are reproduced as contained on Pages 28 – 29 of the Record of Appeal.
NOTICE OF PRELIMINARY OBJECTION
The Court lack competence to commence contempt proceedings against the Respondents in this case in view of the following:
1. Ground 2 of the proposed ground of Appeal against the ruling of the Court delivered on 18th day of December, 2014 if succeeds on Appeal will strip the Court of competence.
2. In the face of conflicting decision in Suit No. UACL/CVF 10/74 Ibrahim Baba Alapa Rep. Ojuekun family V. Salimonu Sosoki & 1 Ors which was subject of Appeal No. KWS/30A/1977 affecting the same parcel of land sought to be enforced by contempt proceeding, and which was later in time, the Judgment in Suit No. UACL/CVF04/74 cannot be enforced.
3. Without first determining who were privies to the Judgment sought to be enforced in Suit No. KWS/20M/2011 Isiaka Ajao Alalubosa V. Mr. Hakeem Lawal & 1 Or. and Suit No. KWS/123/2015 Mohammed Awwal Ayinla Magaji Vs. Mallam Saadu Ojuekun which are pending between Alalubosa and Asunnara families and the Respondent’s family, this Court cannot continue with this proceeding as it is presently constituted.
GROUNDS FOR THE APPLICATION
1. One of the Grounds of Appeal as contain in the proposed Notice of Appeal which is pending if succeeds will rob this Court of competence to entertain this application.
2. Decision in Suit No. UACL/CVF10/74 which is in respect of the same parcel of land by the same Respondent in Suit No. UACL/CVF04/74 is later in time and will create estoppels.
3. The question of whether the Alalubosa and Asunnara families are parties or privies of parties to Suit No. UACL/CVF04/74 is a question of fact which are presently before different Courts for determination, determination of which will give a way forward.
Dated 4th Day of June, 2016.
The Appellants exhibited a Judgment obtained against the Respondent’s Family which they Appellants claimed is on the same land on which the Respondent filed his committal proceeding while the Respondent claimed is on a parcel of land contiguous to the land adjudged the property of the Respondent’s Family. The Judgment relates to Suit No. UACL/CVF/10/74. Between: IBRAHIM BABA ALAPA (representing OJU-EKUN Family) Vs. SALIMONU MAGAJI SOSOKI.
The Appellants contend that by the said Judgment, the Respondent’s Family is stopped from claiming title, over all the parcel of land adjudged the property of the Respondent’s Family in Suit No. UAC/CVF/2/74 upon which the committal application is hinged. The Appellants further contended in their preliminary Objection that by the existence of Suit No. KWS/123/2015 and KWS/20M/2011 filed by their Landlords and the Judgment in Suit No. UACL/CVF/10/74 the competence of the Court below to hear the contempt proceeding is forestalled.
On 17/01/2017, the learned trial Judge dismissed the Appellants’ Preliminary Objection and held inter alia at Pages 281 – 282 of the Record as follows:
”I have no hesitation in holding that this Preliminary Objection is completely off the track and very absurd in view of the history and records of this Court on the matter brought before this Court for adjudication. It should be noted that the Judgment sought to be enforced upon which the appeal went up to the Supreme Court is valid and subsisting. The ruling and order of this Court granting the enforcement the said Judgment is also valid and has not been set aside by any Superior Court see MOBIL OIL NIGERIA LTD. VS. ASSAN (1995) 8 NWLR (PART 412) PAGE 129 cited by the Respondent?s Counsel which held that an order made by a Court of competent jurisdiction against a person is to be obeyed by that person and all other persons sharing interest with him within the purview of that order whether the order is irregular or void in so far as that order has not been set aside, the order must be obeyed. I therefore hold that the said cases pending before the said various Courts and the Suit No. KWS/20M/2011 cannot be used to strip this Court of the jurisdiction over the application pending before it. The case of: BABATUNDE VS. OLATUNJI (2000) 1 SCNQR 210 at 218 cited by the Respondent’s Counsel is apposite and relevant.
This Court is not going to be dragged into the issue of estoppel canvassed by the Applicants’ Counsel which he said will apply if their case in the various Courts succeeds, that is speculative and erratic adventure or self-imposed journey of the wilderness. I hold that this Preliminary Objection lacks merit and it is hereby dismissed.”
Dissatisfied with the above Ruling, the Appellants filed a Notice of Appeal containing five (5) Grounds of Appeal in this Court on 15/03/2017.
The relevant Briefs of Argument for this Appeal are as follows:
1. Appellants’ Brief of Argument dated 14/08/2017 and filed on 17/08/2017 was deemed filed on 07/05/2018. It is settled by Saka Rasak Ayodeji.
2. Respondent’s Brief of Argument (incorporating Notice of Preliminary Objection) is dated and filed on 05/06/2018. It is settled by S. K. Akande, Esq.
3. Reply on point of law to the Respondent’s Brief of Argument is dated and filed on 11/06/2018. It is settled by Saka Rasak Ayodeji, Esq.
Learned Counsel for the Appellants nominated two (2) Issues for determination as follows:-
1. Whether the trial Court can validly adjourn the contempt proceedings for hearing considering the knowledge and the effect of Ground 2 of Appeal No. CA/IL/07/2017) and without 1st determine (sic) whether the Appellants and or their Landlords were parties, agents, or Privies of parties, to the Judgment sought to be enforced, especially when issue was joined by the parties on it.
2. Whether the Court properly consider the application when it failed to consider the rule on the effect of the Judgment in Suit No. UAC/1/CVF. 10/74 between Ibrahim Baba Alapa (Rep. Ojuekun Family) Vs. Salimonu Magaji Sosoki which in respect of the same subject matter and was later in time on Suit No. UACL/CVF/2/74 between Saadu Ojuekun vs. Kuranga Akanbi and Aminu Akano which the Respondent want to enforce by committal proceeding, when issue was joined by parties on same.
According to learned Counsel for the Appellants, Issue One relates to Grounds 2, 4 and 5 of the Notice of Appeal. Issue Two relates to Grounds 1 and 3 of the Notice of Appeal.
Learned Counsel for the Respondent on the other hand formulated a sole Issue for the determination of the Appeal. It is:-
”Whether the lower Court is right in dismissing the Appellants? Preliminary Objection to the committal proceeding.?
THE PRELIMINARY OBJECTION
There are two legs to the Respondent?s Preliminary Objection. The first is that in a flagrant breach of the provision of Section 240 of the 1999 Constitution and Section 15 (1) of the Court of Appeal Act, the Notice of Appeal under consideration ascribed decision appealed against as ”— the Judgment of Hon. Justice M. A. Folayan” without more. Thus, giving the impression that the decision is a personal decision of the Presiding Judge of the lower Court.
He submitted that Hon. Justice M. A. Folayan does not have Judgment/Ruling of his own, rather it is the Court (in this case, the High Court of Kwara State with specified Suit Number) under which the learned Judge made decision the subject of the Appeal that is recognized by Section 240 of the 1999 Constitution and Section 15(1) of the Court of Appeal Act.
He submitted that this Court cannot entertain any Appeal that is not in compliance with the above stated provisions. That the non-compliance constitute substantial irregularity which renders the said Notice of Appeal invalid and incompetent to initiate an Appeal to this Court for when a law prescribes a particular method of exercising a statutory power any other method of its exercise is excluded.
He referred to the cases of: TIZA VS. BEGHA (2005) 22 NSCQR (PT. 2) 42 at 55;
MADUKOLU VS. NKEMDILIM (1962) SCNLR 341; ONYEAMA VS. OPUTA (1997) 6 SC 362 at 407;
FUMUDOL VS. ABORO (1991) 9 NWLR (PT. 214) 210; OGUALAJI VS. A-G, RIVERS STATE (1997) 5 SCNJ 240 at 251. and urged us on this ground to strike out the Appeal.
The second Ground of the Respondent’s Preliminary Objection is that Grounds 1, 2, and 5 of the said Notice of Appeal are not related to the decision of the lower Court.
He referred to the case of: MERCHANT BANK VS. NWOBODO (2005) 7 SCNJ 569 at 573 and submitted that the law is that Ground of Appeal must of necessity arise from Judgment, ruling or decision or any pronouncement of the Court.
Respondent’s Counsel submitted that the particulars of Grounds 1, 2 and 5 of the Appellants Notice of Appeal copiously referred the decision of the lower Court in considering Issue based on the Ground of Appeal in Appeal No. CA/IL/7/2017 as it affects the decision of the lower Court. He submitted that there is no single place in the decision of the lower Court the subject matter of this Appeal where the Issues in Appeal No. CA/IL/7/2017 was ever pronounced upon by the lower Court or where the Court expresses a view or decision on same. In such a situation, said Counsel, the Supreme Court in MERCHANT BANK VS. NWOBODO (Supra) at PAGES 572 – 573 held that the Appellant has only set-up a case not in existence and the inevitable conclusion is that there is no Appeal on such Grounds.
He submitted that in applying the above statement of law to the Appellants’ Appeal, that since Grounds 1, 2, and 5 of the said Notice of Appeal gave rise to the Two Issues raised by the Appellants in their Brief of Argument, the Two Issues are thereby incompetent and the Appeal is liable to be dismissed.
In reply to Paragraph 4.01 of the Respondent’s Brief of Argument, the Appellants submitted that the Provisions of Section 240 of the 1999 CFRN and Section 15 (1) of the Court of Appeal Act did not specify what a competent Notice of Appeal should contain but that Order 7, Rule 2 (1) of the Court of Appeal Rules 2016 does. That the Notice of Appeal filed by the Appellant complied with the said Order.
He submitted that the Appellants’ Notice of Appeal was not prepared to portray that the Judgment was that of the Presiding Judge, as reference by Counsel to the decision appealed against contained in various places of the Notice of Appeal referenced like ‘The Court erred in law” ”the trial Court.”
He further submitted that a careful perusal of the Notice of Appeal will reveal that there is Suit No. of the decision appealed against as Suit No. KWS/44M/2012 and the names of parties involved in the proceeding in the Notice of Appeal, thus, the Appellants’ Notice of Appeal substantially comply with Order 7, Rule 2 (1) of the Court of Appeal Rules 2016 as to the content of a valid Notice of Appeal.
On the second leg of the Respondent’s Preliminary Objection as contained in Paragraph 4.04 of the Respondent’s Brief of Argument, Appellants submitted that assuming without conceding that Grounds 1, 2 and 5 of the Notice of Appeal are not borne out of the decision of the trial Court appealed against, the existence of other valid Grounds in the Notice of Appeal is enough to sustain the Appeal. He submitted that Grounds 1, 2 and 5 are not the only Grounds that culminated into the two Issues of the Appellants but that there is Ground 4. On Issue 1 and Ground 3 on Issue 2, thus the Notice of Appeal remains valid as an Appeal can be sustained on only one valid Ground of Appeal.
He submitted that Ground One (1) is as a result of the Judgment of the Court which only considered part of the Issues leaving out other, while Grounds 2 and 5 are as a result of prayers No. 1 and 3 of the Notice of Preliminary Objection as contained on Page 28 of the Record and upon which the trial High Court delivered its Ruling and as such competent for the consideration and determination by this Honourable Court.
On the 1st leg of Respondent’s Preliminary Objection, I agree with the learned Counsel for the Appellants that the Notice of Appeal was in substantial compliance with the Provision of Order 7, Rule 2(1) of the Court of Appeal Rules 2016. If there was any irregularity, it is clearly not fundamental as to vitiate the Notice of Appeal.
In considering the 2nd leg of the Respondent’s Preliminary Objection, I reproduce Grounds 1, 2 and 5 of the Appellants together with their particulars below for ease of reference;
GROUNDS OF APPEAL
GROUND ONE
The Court erred and misdirected itself in law when it dismissed the Notice of Preliminary Objection when the Issues considered are not enough to determine the objection.
PARTICULARS
1. The Appellants filed a Notice of Preliminary Objection to contest the legality or otherwise of the hearing of contempt proceedings against the Respondents based on Three (3) different Issues.
2. The Court only considered Two Issues, one of which was based on the 2nd Ground of Appeal in Appeal No. CA/IL/7/2017 which effect will affect the hearing of the contempt proceeding by the trial Judge if the Appeal is in favour of the Appellants in that Appeal while the 2nd Issue is on different cases in other Courts predicated on the subject of the contempt proceedings but the trial Judge ignore the last Issue raised which can also independently lead to dismissal or striking out of the contempt proceedings.
3. Failure of the trial Court to consider other issue occasioned miscarriage of Justice on the Appellants.
GROUND TWO
The Court erred and misdirected itself in law when in the face of Exhibit E attached to the Notice of Preliminary Objection; the Court still held that there was no pending appeal against the ruling subject of Appeal No. CA/IL/7/2017 which may temporarily halt the hearing of the contempt proceeding.
PARTICULARS
1. Ground Two of the Notice of Appeal in Suit No. CA/IL/7/2017 borders on the legality and effect of the trial Court to decide at interlocutory stage, matters in the substantive trial.
2. Relying on the case of Globe Fishing Industries LTD. V. Coker (1990) 7 NWLR (Pt. 162) 265 at 280, the appellants in Suit No. CA/IL/7/2017 who are the Landlords of the Appellants herein in the affidavit for joinder claimed that they were not parties, privies or witnesses of parties to the Judgment subject of enforcement and that they ought to be joined in the matter which consequences will affect them.
3. The Court while delivering its Judgment on joinder held that the matter had been decided between the Respondent’s Ojuekun family and Alalubosa and Asunnara families who are landlords of the present appellants.
4. A critical look at the Judgment sought to be enforced will revealed that the case subject of enforcement by contempt proceeding was contested between the Respondent’s Ojuekun family and one Aminu Akano who was/is from different village from those of the Appellants’ landlord.
5. The Appellants herein while contesting the jurisdiction of the Court to proceeds to hearing the Appeal attached Exhibit E to the further affidavit of the Appellants in reply to the Respondent’s counter-affidavit filed to mislead the lower Court which content of the counter-affidavit was to the effect that there was no pending appeal as application for extention of time within which to appeal had been struck-out, to show that the Appeal still subsist.
6. In the face of Exhibit E attached, the trial Court still held that there was nothing before it to show that there was pending appeal and on that basis refused the Appellants’ application.
7. The decision of the trial Court occasioned miscarriage of justice on the Appellants.
GROUND FIVE
The Court erred and misdirected itself in law when it adjourn the application for committal proceeding for hearing in the face of Ground 2 of Appeal No CA/IL/7/2017 which is pending before the Court of Appeal which effect is to strip the Court of its Jurisdiction.
PARTICULARS
1. The trial Court had earlier refused an application for joinder filed by the Alalubosa and Asunnara families who are landlords of the appellants and while delivering its ruling, the trial Court decided at interlocutory stage matters of substantive trial which is now subject of Appeal in Appeal No. CA/IL/7/2017.
2. In line with the decision in Globe Fishing Industries LTD. VS. Coker (1990) 7 NWLR (PT. 162) 265 at 280, the Court that decided at interlocutory stage matter of substantive trial cannot continue with the hearing of the substantive trial but same heard by another Court.
3. Appeal No. CA/IL/7/2017 has not being (sic) decided by the Appeal Court in order to determine whether the statement in the ruling constitute a decision of substantive matter at interlocutory stage.
4. Failure of the trial Court to rule and consider the effect of that ruling on the substantive trial occasioned miscarriage of justice on the Appellants.
It is obvious that Grounds 2 and 5 in particular do not derive from the Ruling of the Court below appealed against as they were concerned with the Ruling in Appeal No. CA/IL/07/2017 which does not form part of the pronouncements and or subject matter of the Ruling appealed against.
It is trite that an Appeal is generally regarded as a continuation of an original suit rather than an inception of a new action. An Appeal should be a complaint against the decision of a trial Court. Thus, in the absence of such a decision on a point, there cannot possibly be an appeal against what has not been decided against a party. NDIC VS. S. B. N. PLC (2003) 1 NWLR (PT. 801) 311;
OREDOYIN VS. AROWOLO (1989) 4 NWLR (PT. 114) 172; BABALOLA VS. THE STATE (1989) 4 NWLR (PT. 115) 264; JUMBO VS. BRYANKO INT. LTD. (1995) 6 NWLR (PT. 403) 545 at 547; and
NGIGE VS. OBI (2006)14 NWLR (PT. 999) 1.
Clearly, Grounds 2 and 5 of the Appellants’ Notice and Grounds of Appeal do not arise from the decision appealed against. Appellants Grounds 2 and 5 of the Notice and Grounds of Appeal are accordingly struck out.
The Respondent’s Notice of Preliminary Objection is sustained in part.
THE MAIN APPEAL
First, as a result of my above decision on the Respondent’s Preliminary Objection, the 1st leg of Appellant’s Issue One solely based on Grounds 2 and 5 of the Grounds of Appeal and dealing with the effect of Ground 2 of Appeal No. CA/IL/07/2017 cannot be sustained and it is accordingly struck out.
Secondly, still in relation to Appellants’ Issue One the second leg as to . … without first determining whether the Appellants and or their landlords were parties, agents or privies of parties to the Judgment sought to be enforced, especially when issue was joined by parties to it? does not arise from the ruling of the Court or even from the Grounds of Appeal donated by the Appellants. Rather, the Appellants’ remaining Grounds 1, 3 and 4 only cover prayer 3 of the Appellants’ Notice of Preliminary Objection to wit:-
”Without first determining who were privies to the Judgment sought to be enforced in Suit No. KWS/20M/2011 ISIAKA AJAO ALALUBOSA VS. MR. HAKEEM LAWAL & 1 OR. and Suit No. KWS/123/2015 MOHAMMED AWWAL AYINLA MAGAJI VS. MALLAM SAADU OJUEKUN which are pending between Alalubosa and Asunnara families and the Respondent?s family, this Court cannot continue with this proceeding as it is presently constituted.”
It seems to me therefore that on a careful perusal of the Notice and Grounds of Appeal as well as the Record of Appeal including the Ruling appealed against, the two Issues whose determination would be in the interest of justice in this case are:-
1. Whether without first determining who were privies to the Judgment sought to be enforced in Suit No. KWS/20M/2011 ISIAKA AJAO ALALUBOSA VS. MR. HAKKEM LAWAL & 1 OR. AND SUIT NO. KWS/123/2015 MOHAMMED AWWAL AYINLA MAGAJI VS. MALLAM SAADU OJUEKUN which are pending between Alalubosa and Asunnara families and the Respondent’s family, this Court cannot continue with this proceeding as it is presently constituted.
2. Whether the Court properly consider the application when it failed to consider and rule on the effect of the Judgment in Suit No. UAC/I/CVF.10/74 between Ibrahim Baba Alapa (Rep. Ojuekun family) vs. Salimonu Magaji Sosoki which is in respect of the same subject matter and was later in time on Suit No. UACL/CVF/2/74 between SAADU OJUEKUN VS. KURANGA AKANBI & AMINU AKANO which the Respondent want to enforce by committal proceeding.
On Issue One, learned Counsel for the Appellant’s submitted that by the processes filed in counter to the application for contempt proceedings the Appellants and their Landlords were not parties to the proceedings which the Respondent wants to enforce.
He submitted that parties to Suit No. UACL/CVF/2/74 which is the Judgment the Respondent herein wanted to enforce as can be seen are SAADU OJUEKUN VS. KURANGA AKANBI AND AMINU AKANO but that the names of Kuranga Akanbi was later struck out having admitted liability.
He submitted that the trial Court failed to properly analyze the processes before it to see that in the Judgment which the Respondent wants to enforce there was/is only one party from each side which prosecute the case to conclusion and the Judgment debtor therein was from only one family in Yowere, but there are two different families that are involved in the application for joinder.
The Appellants submit that parties to civil proceedings are the Plaintiff and the Defendant, and as such the trial Court is duty bound to look at the processes filed before the Court.
He referred to the cases of:
OUR & CO. LTD. VS. DICK (2004) ALL FWLR (PT. 444) 1403 at 1424 TO 1425; and CHIEF ABOLADE COKER VS. CHIEF ADEKOYA OKE OLUSOGA AND ORS. (1994) 2 NWLR (PT. 329) 648 at 660.
He reiterated that when the Appellants Landlords deposed to facts to the effect that they were not parties, privies or witness to any of the parties to Suit No. UACL/CVF/2/74, then the Court is under the duty to look at the parties in the proceeding sought to be enforced and compared it with the parties before the Court or for the Respondent to show how the Appellants or their Landlords are privies of parties to the proceeding so as to be bound by the proceeding subject of enforcement. Thus, where the Court considered that parties in the case are not the same and not privies of parties to the previous case, then the Court is duty bound to strike out the contempt proceedings.
Learned Counsel for the Respondent submitted on Issue One that the Appellants’ Preliminary Objection was hinged on the expected outcome of Suit No. KWS/123/2015 and Suit No. KWS/20M/2011. He submitted that the trial Court in law cannot concoct evidence or imagine the outcome of the two (2) cases pending before other Courts to deprive itself of its jurisdiction in the case before it. This, he said is because a Court is to interpret a situation as per the cold facts before it, and not as per what he would have preferred the facts to be.
He referred to the case of THE STATE VS. AIBANGBEE (1988) 7 SCNJ 128 at 150. To hold otherwise, according to Respondent’s Counsel would mean a decision based on legal presumption/hypothetical where the basis upon which the assumed albeit improper legal issue presented by the Appellants’ Preliminary Objection as formulated would be taken as proved when the same remains to be proved and clearly therefore a conclusion arrived at after such wrongful assumption would be wrong.
It seems to me that the problem with Appellants’ Issue One is that the learned Counsel for the Appellants now tries to present a different case on Appeal outside of the case presented in the Court below. This is not permissible. An Appeal being a continuation of an original suit is generally limited to the consideration of the issue canvassed in the trial Court with a view to determining whether on a careful consideration of the material placed before the trial Court, it arrived at a correct decision on the issue. An Appellate Court therefore is not a place to adduce fresh testimony to canvass new issues at large. See. KADZI INTL. LTD. VS. KANO TANNERY CO. LTD. (2004) 4 NWLR (PT. 864) 545
As noted earlier in this Judgment, either from the Notice of Preliminary Objection which led to the Ruling appealed against or the Ruling itself, no issue arose as to ”whether the Appellants or their Landlords are parties or privies of parties to the proceeding subject of enforcement” rather the issue raised in the Appellants’ Notice of Preliminary Objection is ”whether the expected outcome of Suit No. KWS/123/2015 and Suit No. KWS/20M/2011 would not debar the competence of the proceeding before the trial Court.”
More importantly, it is clear from the Record of Appeal that the said Court below had already determined the question of the parties and privies to Suit No. UAC/CVF/04/74 which the Respondent sought to enforce by committal proceeding in an earlier Ruling of the Court delivered on 18/5/2012 when the application to enforce the Judgments were granted.
In the Ruling appealed against, the learned trial Judge explained thus:
”For the purpose of clarity, I restate the history of this matter before this Court as contained in the records of the Court in this case. The Judgment creditor/Respondent Saad Ojuekun by his application dated and filed on 1/5/2012 sought the leave of this Court to enforce the Judgment declaring him as the owner of a large parcel stretching from the area called Oke – Moro up to the area called Odo – Woru, and leave to issue writ of possession against the Respondents over the said parcel of land. The grounds for the application are that all the Appellate Courts affirmed the Judgment of the trial Court granting the title over the land to Saad Ojuekun’s family. The Judgments of the trial Court, (Upper Area Court) the High Court, the Court of Appeal affirming the Judgments of the lower Courts and the Judgment of the Supreme Court dismissing the Appeal of the Appellant for want of prosecution under Order 6, Rule 3(2) of the Supreme Court Rules were attached to the application. Leave of this Court was sought exparte to enforce the Judgment because the final Ruling on the case was delivered over 6 years ago. In the considered Ruling of this Court dated 18/5/2012, the application to enforce the Judgments was granted.”
There is no gainsaying that the learned trial Judge could not possibly have waited for the outcome of Suit No. KWS/123/2013 and Suit No. KWS/20M/2011 pending in some co-ordinate Courts to enforce valid and subsisting Judgments of the Court of Appeal and the Supreme Court arising from UACL/CVF/2/74 pending before his Court.
A Court cannot rely on a pending Judgment of another Court yet to be decided in taking a decision on a matter before it.
Kekere – Ekun, JSC in the case of ONYEKWULUJE & ANOR VS. BENUE STATE GOVT. & ORS. (2015) LPELR 24780 (SC) adopted the dictum of Kutigi, JSC in the case of ZAMANI LEKWOT VS. JUDICIAL TRIBUNAL ON CIVIL AND COMMUNAL DISTURBANCES IN KADUNA STATE & ANOR (1997) 8 NWLR (PT. 515) 22 at 34 to say that:
”…. No Court in this country can set aside, nullify or quash any proceedings or decisions not before it. Courts rely on concrete facts before them and not on guess, work and to ask a Court to make a decision on guess ? work and matters not exhibited before it is unjust and can depending on the circumstances of the case, amount to an abuse of Court process.”
Issue One is resolved against the Appellants.
On Issue Two, learned Counsel for the Appellants submitted that the Court erred and misdirected itself in law when it failed to consider and rule on the effect of the Judgment in Suit No. UAC/I/CVF.10/74 between IBRABHIM BABA ALAPA (Rep. Ojuekun Family) VS. SALIMONU MAGAJI SOSOKI (which is in respect of the same subject matter) and was later in time on Suit No. UACL/CVF/2/74 between SAADU OJUEKUN VS. KURANGA AKANBI & AMINU AKANO which the respondent wants to enforce by committal proceedings.
Learned Counsel for the Appellants conceded that the order of Court in Suit No. UACL/CVF/2/74 is that ”Orders: The land in dispute from Moro River is awarded to Ojuekun family—”
In relation to Suit No. UACL/1/CVF.10/74, Appellants? Counsel submitted that the Court (Upper Area Court) in its Judgment delivered on 6th day of September, 1977 at Page 86 of the Record of Appeal concluded that:
”Considering the above facts we find the Plaintiff has failed to establish his superior title to, or his ownership of the piece of land extending from Moro stream to Weru stream. We therefore dismiss the Plaintiff’s claim to the land against the defendant.”
Appellants’ Counsel submitted that the Appeal by the Respondent in this Appeal (Ojuekun) as Appellant to the High Court in Appeal No. KWS/30A/1977 as contained on Pages 88 to 106 of the Record of Appeal held at Page 106, that:
”Order: Appeal allowed, the decision of the trial Court is set aside. Appellant also failed to prove ownership over the land, his claim to title fails and is dismissed.”
Appellants’ Counsel submitted that Judgment in Suit No. UAC/I/CVF.10/74 delivered on 6th day of September, 1977 was later in time to the Judgment in favour of the Respondent (herein) in UAC/CVF/2/74 delivered on 31st day of March 1977. He referred to the case of MACKSON IKENI & 1 ORS. VS. CHIEF WILLIAM AKUMA EFAMO & 2 ORS. (2001) 10 NWLR (PT. 720) 1 at 16 ? 17 to say that the Judgment in Suit No. UACL/CVF/2/74 and Judgment in Suit No. UACL/CVF.10/74 conflicts, and that the position of the law is that where 2 (Two) Judgments conflict, the later in time prevails.
He submitted that the effect of the order of dismissal made in Suit No. UACL/CVF.10/74 subject of appeal – Appeal No. KWS/30A/1977 is that it operates as estoppel per rem judicatam and bars the losing party from re-litigating the subject matter.
He referred on this to the cases of:
EJIOFOR VS. ONYEKWE & ORS. (1972) 1 ALL NLR (PT. 2) PAGE 527;
OKPALA VS. IBEME (1989) 2 NWLR (PT. 102) 208 at 223;
DOSUNMU VS. AJAGUN (1978) 11 NSCC 32 at 33; HASSAN & ORS. VS. REGISTERED TRUSTEES, BAPTIST CONVENTION & ORS. (1993) 7 NWLR (PT. 308) 679 at 690;
MACKSON IKENI & 1 OR. VS. CHIEF WILLIAM AKUMA EFAMO & 2 ORS. (2001) 10 NWLR (PT. 720) 1 at 16 – 17.
Appellants’ Counsel submitted that the orders made by the High Court Appellate Session, Court of Appeal and Supreme Court in respect of Suit No. UACL/CVF/2/74 were made after and in ignorance of the decision in Suit No. UACL/CVF.10/74 which declared the Respondent?s family as a caretaker over the land they had earlier obtained judgment as the real owner in Suit No. UACL/CVF/2/74.
He referred to the case of MUDASHIRU KOKOROOWO & ORS. VS. LAGOS STATE GOVERNMENT & ORS. (2001) 11 NWLR (PT. 723) 237, (2001) 5 SC 50 at 56 – 57 and added that as at 9th day of May, 1978 when Judgment in Appeal No. KWS/30A/1977 which was an appeal on Suit No. UACL/CVF.10/74 was delivered, the claims of the Respondent’s family over the land between Oke -Moro and Odo – Weru as extinguished cannot be resuscitated by appeals in Suit No. UACL/CVF/2/74, as the Respondent’s family has ceased to be the owner of the lands between Oke ? Moro and Odo – Weru but in the respective occupiers who were not parties to the proceedings in the 2 (two) Suits No. UACL/CVF/2/74 and No. UACL/CVF.10/74.
He referred to the cases of: UME VS. NIGERIA RENOWNED TRADING CO. (1997) 8 NWLR (PT. 516) 344 at 353; and
EBIMOTUREH VS. INEKEMBAGHA (1998) 3 NWLR (PT. 543) 548 at 558.
Appellants’ Counsel submitted that, the questions that will be begging for answers are that after the Judgment in Appeal No. KWS/30A/1977 which was an Appeal on Suit No. UACL/CVF.10/74, can the Respondent’s family rely on the traditional history which he relied on in Suit No. UACL/CVF/2/74 to challenge anybody on any land between Oke – Moro and Odo – Weru can the Respondent lay claim of ownership to the land in dispute in the face of the Judgment dismissing his claims relying on the traditional history which was against him? Can the Respondent’s family enforce the Judgment in Suit No. UACL/CVF/2/74 when the traditional history which was the basis for his claim had been knocked off by his own witness in a subsequent case in Suit No. UACL/CVF.10/74.
Appellants’ Counsel submitted that the Respondent intends to subvert the effect of the order of dismissal of his case in Suit No. UACL/CVF.10/74 which is later in time to Suit No. UACL/CVF/2/74 contrary according to Counsel to the decision in DOSUNMU VS. AJAGUN (1978) 11 NSCC 32 at 33.
He submitted that the Court did not consider this vital issue before it eventually dismissed the application of the Appellants. And, that where the Court failed to consider the entire evidence before giving Judgment, such Judgment will not stand.
He referred to the cases of:
BARR. EDWARD EHIMWENNA OSIFO VS. OKOGBO COMMUNITY BANK LTD. (2007) ALL FWLR (PT. 372) 1803 at 1824; ALHAJI ATIKU ABUBAKAR & ORS. VS. ALHAJI UMAR MUSA YAR’ADUA (2009) ALL FWLR (PT.457) 1 at 146.
He submitted that by Order 4, Rules 1 to 9 of the Court of Appeal Rules, this Honourable Court has the power to do what the lower Court failed to do by allowing the Appeal of the Appellants and set – aside the Judgment in Suit No. UACL/CVF/2/74 the effect of which has been whittled down by the order of Dismissal in Suit No. UACL/CVF.10/74 and Appeal No. KWS/30A/1977.
On Issue Two, learned Counsel for the Respondent referred to the case of INTER CONTRACTOR VS. N.A.F. (1988) 4 SCNJ 154 at 163 that it is not desirable or permissible in adjudicating process to consider irrelevant and/or unnecessary issue not properly arising for determination.
He submitted that the learned Counsel to the Appellants got mixed – up with his laws in failing to realize that by decision in CARRENA VS. AKINLADE (2006) 35 SCNQR 318 – 319, a fresh action instituted against a subject matter of a suit already decided cannot foreclose the latter Court?s power to Order for the execution of the Judgment in the already decided case. That the import of the decision in Suit No. KWS/30A/1977 cannot debar the trial Court from enforcing the Judgment obtained by the Respondent. The decision in Suit No. KWS/30A/1977 cannot act as estoppels to prevent enforcement of Judgment obtained by the Respondent?s family in Suit No. UACL/CVF/2/1974 as the subject matter of the two Suits are not the same. Further, said Counsel, there is no evidence of counter claim for title in Suit No. KWS/30A/1977 to support any inference of issue estoppels against the Respondent’s family as urged by the Appellants.
He submitted that it is instructive that the Appellate Court in the said suit KWS/30A/1977, at Page 106 of the Record, allowed the Appeal of the Applicants therein and dismissed the Respondent’s family’s claim to title for failure to prove same.
He submitted that the lower Court was right in failing to countenance the said decision as constituting issue estoppels against the Respondent?s family not only because parties are not the same, but fundamentally because the subject matter of the said suit is not the same, as the one in which Judgment the lower Court’s jurisdiction was challenged by the Appellants’ Preliminary Objection. That the said decision is irrelevant for consideration by the lower Court, and by no stretch of legal prism can same constitute estoppels against the Respondent?s family in the present case. He concluded that the Appellants’ Preliminary Objection constitute abuse of Court process.
The long and short of the submissions of the learned Counsel for the Appellants on Issue Two is that the Judgment of the High Court in Appeal in Suit No. UACL/CVF.10/74 and KWS/30A/1977 creates estoppel per rem judicatam to the previous Judgments in favour of the Respondent?s family in Suit No. UACL/CVF/2/74 as according to Counsel the subject matter of the two suits are the same and thereby debars the learned trial Judge from proceeding with the committal proceedings against the Appellants based on the enforcement of Suit No. UACL/CVF/2/74.
In the first place, the parties here dispute the question whether the subject matter in suit No. UACL/CVF/2/74 is the same with that in UACL/CVF.10/74 and KWS/30A/1977.
Also, some passages in UACL/CVF.10/74 and KWS/30A/1977 would suggest that the claims of the parties in the two suits are not exactly the same. And, it is clear from the names of the parties in the record of proceedings that the parties to the two suits are not the same.
Estoppel per rem judicatam or estoppel of record arises where an issue of fact has been judicially determined in a final manner between parties by a Court or Tribunal having jurisdiction, concurrent or exclusive in the matter and the issue comes directly in question in subsequent proceedings between the parties or their privies. Thus, the parties affected are estopped from bringing a fresh action before any Court on the same case and on the same issue already pronounced upon by the Court in a previous action.
See: OSUNRINDE VS. AJAMOGUN (1992) 6 NWLR (PT. 246) 156;
IGWEGO VS. EZEUGO (1992) 6 NWLR (PT. 249) 561; DOKUBO VS. OMONI (1999) 8 NWLR (PT. 616) 647; OSHODI VS. EYIFUNMI (2000) 7 SC (PART 11) 145.
Also, for a plea of estoppel to succeed, a party relying on it must establish the following facts, namely:
a. That the parties or their privies involved in both the previous and the proceedings in which the plea is raised are the same;
b. That the claims in issue in dispute in both proceedings are the same.
c. That the res or the subject matter of the litigation in the two cases is the same,
d. That the decision relied upon to support the plea is valid, subsisting and final; and
e. That the Court that gave the previous decision relied upon to sustain the plea was a Court of competent jurisdiction.
The burden is on the party who sets up the defence of estoppel per rem judicatam to establish the above pre – conditions conclusively.
See: BALOGUN VS. ODE (2007) 4 NWLR (PT. 1023) 1;
DAGACI OF DERE VS. DAGACI OF EBWA (2006) 7 NWLR (PT. 979) 382;
EKONG VS. UDO (2002) 16 NWLR (PT. 792) 1
Perhaps more important to Appellants’ Issue Two in this case is the point made by the learned Counsel to the Respondent through the case of CARENA VS. AKINLADE (2006) 35 SCNQR 318 – 319 that a fresh action instituted against a subject matter of a suit already decided cannot foreclose the latter Court’s power to order for the execution of the Judgment in the already decided case.
In the instant case, the effect of Suit No. KWS/30A/1977 on Suit No. UACL/CVF/2/74 has not been pronounced upon. The Appellants by his Preliminary Objection against the Respondent?s committal proceedings did not and could not have in that committal proceedings raise a plea of estoppel per res judicatam based on Suit No. KWS/30A/1977 in relation to Suit No. UACL/CVF/2/74.
The learned trial Judge was not expected as a matter of law to pronounce or decide on the applicability or otherwise of the doctrine of estoppel per res judicatam in between the parties in respect of the two decisions, because simply put, the matter before him was his jurisdiction to conclude committal proceedings based on a valid and subsisting Judgment in UACL/CVF/2/74.
Consequently, the learned trial Judge was right to have ignored the decision in UACL/CVF.10/74 in dismissing the Appellants’ Preliminary Objection against the committal proceedings based on the previous leave granted to the Respondent to enforce the Judgment in Suit No. UACL/CVF/2/74.
Issue Two is resolved against the Appellants.
Having resolved the Two Issues in this Appeal against the Appellants, the Appeal lacks merit and it is hereby dismissed.
The sum of Thirty Thousand Naira only (N30,000.00) Costs is awarded in favour of the Respondent.
CHIDI NWAOMA UWA, J.C.A.: I had the privilege of reading before now the judgment of my learned brother, MOJEED ADEKUNLE OWOADE, JCA. I agree with his reasoning and conclusion arrived at and adopt same as mine in holding that the appeal is lacking in merit. I also dismiss it and abide by the order made as to costs in the leading judgment.
HAMMA AKAWU BARKA, J.C.A.: The Judgment of my learned brother MOJEED ADEKUNLE OWOADE JCA, just read, was made available to me in draft form. Having also studied the record of proceedings and the submissions of learned counsel, I cannot but agree that the issues argued upon in the appeal were well taken care of to my satisfaction. I do agree with the lead judgment that the appeal lacks merit and it is hereby dismissed by me. I abide on all orders made including order made as to costs.
Appearances:
Saka Rasak Ayodeji, Esq.For Appellant(s)
Abdulrasheed Isiaka, Esq. with him, Goke Akande, Esq.For Respondent(s)
