JOSEPH ENYINNAYA OGOM IGWEH & ORS v. CYPRIAN OKECHUKWU IGWEH & ANOR
(2019)LCN/12717(CA)
In The Court of Appeal of Nigeria
On Friday, the 15th day of February, 2019
CA/A/95/2017
RATIO
COURT AND PROCEDURE: WHETHER A COURT IS ENTITLED TO LOOK AT ITS ON NOTICE
“It is trite that a Court is entitled to look at its own record and proceedings on any matter and take notice of their contents although they may not be formally brought before the Court by the parties. Per Ba’aba JCA (of blessed memory) in Ado Vs. Mekara (2009) 9 NWLR (Pt 1147) 491.” PER EMMANUEL AKOMAYE AGIM, J.C.A.
COURT AND PROCEDURE: ABUSE OF COURT PROCESS
“Abuse of Court process by multiplicity of actions exists where two or more actions between the same parties, claiming for the same reliefs and or involving the same issues are pending in one or more Courts. The earliest process or action is said to be abused by the later or subsequent action or actions. So to establish abuse of Court process it must be shown that the later action or process has parties, issues, subject and reliefs similar to the parties, issues, subject matter and reliefs of an already existing and pending process or action. See Igbeke v. Okadigbo (2013) LPELR 20664 (SC).” PER EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES
COURT AND PROCEDURE: JUDGMENT BY CONSENT
“Let me add that a judgment by consent is intended to put a stop to litigation between the parties just as much as is a judgment which results from the decision of the Court after the matter has been fought out to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgments, and were to allow questions that were really involved in the action to be fought over again in a subsequent action. Per Coker, JSC in Talabi Vs. Adeseye (1972) LPELR 3134 (SC).” PER EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES
ADAMU JAURO Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
1. JOSEPH ENYINNAYA OGOM IGWEH
2. CHUKWUMA KRISTOPHER IGWEH
3. CHIJIOKE EDWIN IGWEH
4. MRS. STELLA IFEOMA IGWEH-ODILI
(Suing as beneficiaries of the Estate of Chief Joseph Uchechukwu Igweh) Appellant(s)
AND
1. CYPRIAN OKECHUKWU IGWEH
(Sued as sole Administrator of the Estate of Chief Joseph Uchechukwu Igweh (Deceased)
2. THE PROBATE REGISTRAR, HIGH COURT OF THE FEDERAL CAPITAL TERRITORY Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment):
This appeal No. CA/A/95/2017 was commenced on 9-12-2016 when appellants herein filed a notice of appeal against the judgment of the High Court of Federal Capital Territory delivered on 29-9-2016 in Suit No. FCT/HC/CV/330/2013 by U.A. Musale J. The notice of appeal contains 3 grounds for the appeal.
The appellants and 1st respondent filed, exchanged and adopted their briefs as follows- appellant’s brief and 1st respondent’s brief.
Appellant’s brief raised one issue for determination as follows-
1. Having regard to the fact that the cause of action in this suit arose from the letters of administration granted to the 1st Respondent by the 2nd Respondent on 14th December, 2006 and 22nd January, 2007 and failure of the 1st Respondent to discharge the duties of an administrator, whether the learned trial was wrong to hold that Suit No. FCT/HC/CV/330/2013 is an abuse of Court process based on the pending application in Appeal No. CA/A/546M/2013 seeking leave to appeal and the lower Court?s omission to pronounce on all the issues raised by the Appellants in their written address in opposition to the 1st Respondent?s Notice of Preliminary Objection as well as the Appellants’ final address? (Distilled from grounds 1, 2 and 3 of the Notice of Appeal).?
1st respondent’s brief raised two issues for determination as follows-
1. Having regards to the position taken by the parties in the issuance of the letters of Administration over the estate of their late father to the 1st respondent, the Appellants are not estopped to converse to the contrary. (Distilled from grounds 3 of the Notice of Appeal)
2. Having regards to the fact that the cause of action in this suit arose from the letters of administration granted to the 1st Respondent by the 2nd Respondent on 14th December, 2007 and 22nd January, 2007 and failure of the 1st Respondent to discharge the duties of an administrator whether the learned trial Judge was wrong to hold that SUIT NO. FCT/HC/CV/330/2013 is an abuse of Court process based on the pending application in Appeal No. CA/A/546M/2013 seeking leave to appal and the lower Court’s omission to pronounce on all the issues raised by the Appellants in their written address in opposition to the 1st Respondent’s Notice of preliminary Objection as well as the Appellants’ final address? (Distilled from grounds 1 and 2 of the Notice of Appeal).
I will determine this appeal on the basis of the issue raised for determination in the appellant’s brief.
On 3-10-2013, the appellants herein as plaintiffs commenced suit No FCT/HC/CV/330/2013 in the High Court of the Federal Capital Territory at Abuja by filing a writ of Summons accompanied by a statement of claim, list of plaintiffs’ witnesses, witness statement on oath, list of documents to be relied upon at the trial and photocopies of the documents.
In paragraph 54 of their statement of claim, the plaintiffs claimed for the following reliefs-
1. A declaration by this Honourable Court that the 1st Defendant acted fraudulently in obtaining the letters of Administration dated 22/01/2007 in respect of the estate of Late Chief Joseph Uchechukwu Igweh without the consent knowledge and authorization of the Plaintiffs, who are the beneficiaries of the estate, to that effect.
2. A declaration that the 2nd Defendant acted fraudulently, recklessly and negligently in issuing to the 1st Defendant, 2 Letters of Administration dated 14/12/2006 and 22/01/2007 respectively, in respect of the estate of Chief Joseph Uchechukwu Igweh (deceased).
3. An order of this Honourable Court setting aside the Letters of Administration dated 22/01/2007 issued by the 2nd Defendant to the 1st Defendant in respect of the estate of Chief Joseph Uchechukwu Igweh (deceased).
4. A declaration that the 1st Defendant is not a fit and proper person to administer the estate of Late Chief Joseph Uchechukwu Igweh and/or continue to act in that capacity.
5. An order of this Honourable Court granting the Plaintiffs leave to retract the renunciation of their respective rights to administer the estate of Late Chief Joseph Uchechukwu Igweh.
6. An order of this Honourable Court setting aside the appointment of the 1st Defendant as the Sole Administrator of the estate of Chief Joseph Uchechukwu Igweh (deceased).
7. An order of this Honourable Court directing the 1st Defendant to render a full, proper, updated, true and correct account of his administration of the estate of Late Chief Joseph Uchechukwu Igweh from 14/12/2006 to the date of judgment to the Plaintiffs.
8. An order of this Honourable Court appointing 1st to 4th Plaintiffs as the Administrators and Administratrix of the estate of Chief Joseph Uchechukwu Igweh (deceased).
9. An order of this Honourable Court substituting the name of the Plaintiffs with that of the 1st Defendant as Administrators and Administratrix of the estate of Chief Joseph Uchechukwu Igweh (deceased) on the Letters of Administration dated 14/12/2006.
10. An order of this Honourable Court directing that upon their appointment as Administrators of the estate of Chief Joseph Uchechukwu Igweh (deceased), the estate shall be distributed by the 1st to 4th Plaintiffs equally amongst all the children of the deceased.?
The 1st respondent as 1st defendant on 17-3-2014 filed a statement of defence accompanied by his witness statement on oath and documents to be relied on at the trial.
In paragraphs 1 to 6 of the said statement of defence, he raised a preliminary objection to the suit and the jurisdiction of the trial Court to entertain the suit thusly- ‘BY WAY OF PRELIMINARY OBJECTION the 1st Defendant shall raise a preliminary objection on the competence of this suit and the jurisdiction of the Honourable Court to entertain same and pray this Honourable Court to Dismiss and/or Strike out the suit on the following grounds:
1. The plaintiffs lack the requisite Locus Standi to institute and maintain this suit.
2. The suit is an Abuse of Court process in view of the Pendency of Appeal No. CA/A/546/M/2013.
3. The suit is not properly constituted as the requisite and necessary parties are not joined and they are directly affected by this action including its eventual outcome;
a. In paragraph 9 of the statement of claim the name of Chizoba Lydia Igweh the 4th Daughter of Chief J.U. Igweh was mentioned yet she was not joined as a party to this action despites the fact that relief 10 seeks the distribution of estate.
b. In paragraph 18, 19 and 20 of the statement of claim demining allegations were made against one Sulaiman Usman Esq yet he is not joined in the suit as a party.
c. Dr (Mrs) Bekky Igweh was mentioned in paragraph 15 of the statement of claim as the Widow of Late Chief J.U. Igweh and curiously she is not joined in this action.
4. The subject matter in the suit is Res judicata having been determined to finality by the Federal High Court of Nigeria in consent judgment of the Federal High Court delivered by BFM Nyako in suit no. FHC/ABJ/CS/237/06 delivered on 11th October 2006.
5. The Plaintiff is time barred by laches and acquisance of the Plaintiffs
6. The Honourable Court has no jurisdiction to hear, entertain and determine this suit.?
On 20-10-2014, the 1st defendant filed a notice of preliminary objection to the suit and the jurisdiction of the trial Court to entertain the suit on the same terms and grounds stated in the statement of defence.
The plaintiffs elicited evidence in support of their case through PW1 their sole witness (1st appellant herein). The 1st respondent elicited evidence through two witnesses (DW1 and DW2) in defence of the case made out by the plaintiffs.
Following the filing, exchange and adoption of written addresses, the trial Court rendered final judgment. In its judgment it first considered and determined the preliminary objection of the 1st defendant. It upheld the objection and held that it was satisfied that the success of the objection substantially disposed of the whole action and that no useful purpose would be served dealing with the issues in the substantive case.
The exact of the part of the judgment complained against in this appeal reads thusly- The next issue is abuse of Court process. Abuse of Court process simply means that the process of the Court has not been used bonafide and properly. It also connotes the employment of judicial process by a party in improper use to the irritation and annoyance of his opponent and efficient and effective administration of justice. Per Bage JCA in Ojomo VS. Adalemo (2010) LPELR-9012.
It was argued for the 1st defendant that a look at the entire suit and the prayers sought amount to abuse of Court process as the claims had already been determined by the Federal High Court in consent judgment delivered by Nyako J. in suit No. FHC/ABJ/CS/237/2006 delivered on 11th October, 2006.
The argument of the plaintiffs was that the preliminary objection is not supported by facts. That the processes filed in Appeal No. CA/A/546/M/2013 were not placed before the Court to enable the Court determine whether this action constitute abuse of judicial process. That what is before the Court of Appeal is whether the 1st and 2nd plaintiffs are entitled to leave to appeal against the judgment of the Federal High Court Per Nyako, J. delivered on 11th October, 2006 on the grounds that the Federal High Court lacked jurisdiction to made orders with respect to probate. That the issue before this Court has to do with the duty of the 1st defendant as the Sole Administrator of the estate of Late Chief Joseph Uchechukwu Igweh and the fact that the 2nd defendant issued 2 letters of administration in favour of the 1st defendant.
The Supreme Court in Senator Igbeke Vs. Okadigbo (2013) LPELR- 20664 (SC) per Galadima JSC inter alia held- This Court has said in a plethora of decisions that multiplication of actions on the same matter can constitute an abuse of the process of the Court as long as the parties to the actions and the subject matter are the same.
It is trite that a Court is entitled to look at its own record and proceedings on any matter and take notice of their contents although they may not be formally brought before the Court by the parties. Per Ba’aba JCA (of blessed memory) in Ado Vs. Mekara (2009) 9 NWLR (Pt 1147) 491. From the record before the Court, is not in dispute that the 1st and 2nd plaintiffs herein filed on 3rd October, 2013 application before the Court of Appeal No. CA/A/546/M/2013 seeking leave to appeal against the consent judgment sought and obtained from the Federal High Court on the 11th October, 2006. On that same date, 3rd October, 2013, this suit was filed before this Court by the same 1st and 2nd Plaintiffs with 2 Ors.
When does abuse of Court process occur?
Where 2 similar processes are used in respect of the exercise of the same right. Thus the processes need not be the same, however the must be in respect of the exercise of the same right. See Eleburuike Vs. Tawa (2010) LPELR-4098 (CA).
Let me elaborate. Whether rightly or wrongly, the Federal High Court per Nyako J., gave a consent judgment in a matter the present 1st and 2nd plaintiffs and 1st defendant herein were all defendants. In the consent judgment, it was inter alia ordered:-
That Mr. Cyprian Okechukwu Igweh who is the head of the family solely handles the administration of the estate. He will be transparent and fair in his role as Administrator of the family. That Mr. Cyprian Okechukwu Igweh shall assume the leadership of the family. This is without prejudice to the position of other members of the family.
Before the Court of Appeal, the appellants are seeking the following reliefs:-
1. An order of this Honourable Court setting aside the consent judgment of the Federal High Court, Abuja delivered by the Honourable Justice B.F.M. Nyako on the 11th October, 2006 in suit No. FHC/ABJ/CS/237/2006: Bolingo Hotel and Towers Ltd & Anr Vs. Joseph Ogom Igweh & 4 Ors.
2. An order of this Honourable Court dismissing the said suit No. FHC/ABJ/CS/237/2006. Bolingo Hotels and Towers Ltd and Anr Vs. Joseph Ogom Igweh and 4 Ors.
In my view, nobody can fault the appellants for seeking that order from the Court of Appeal. Now the appellants with others are seeking inter alia the following reliefs from this Court-
1. An order of this Hon. Court setting aside the appointment of the 1st defendant as the Sole Administrator of the estate of Chief Joseph Uchechukwu Igweh (deceased)
2. An order of this Honourable Court appointing the 1st to 4th plaintiffs as the Administrators and Adminitratrix of the estate of Chief Joseph Uchechukwu Igweh (deceased)
3. An order of this Honourable Court substituting the name of the plaintiffs with that of the defendant as Administrators and Administratrix of the estate of Chief Joseph Uchechukwu Igweh (deceased) on the letters of Administration dated 14th December, 2006.
4. An order of this Honourable Court directing that upon their appointment as Administrators of the estate of Chief Joseph Uchechukwu Igweh (deceased), the estate shall be distributed by the 1st to 4th plaintiffs equally amongst all the children of the deceased.
The above reliefs to my mind have the tendency of achieving the same result from those sought from the Court of Appeal. I must say that this Court cannot sit in judgment over the decision of the Federal High Court. That consent judgment remains subsisting until the Court of Appeal says otherwise. The Supreme Court in Mrs. Ekpuk Vs. Mrs. Okon (2005) 22 NSCQLR 840 made a pronouncement regarding multiplication of cases before the same Court. It says- the decision of the Court of Appeal in the first case is subsisting and subsisted when the Court of Appeal considered the appeal in the second case started with originating summons. The decision of the Court of Appeal in the first case remains unambiguous that the respondent now before us was persuaded from administering the estate in issue. She has not appealed that decision and to start another case on the same subject matter of administration of her late husband’s estate, seems to me an abuse of process.
In the same vein, the consent judgment delivered by the Federal High Court is still subsisting and calling on this Court to remove the 1st defendant as the sole administration to the estate of Chief Joseph Uchechukwu Igweh (deceased) and to appoint the 1st to 4th plaintiffs as Administrators and Administratrix of the same estate will amount to setting aside that consent judgment. I am afraid this Court has no jurisdiction to do that. The Court of Appeal is the proper Court for that. This Court and the Federal High Court are Courts of Co-ordinate jurisdiction and none has the jurisdiction to vary or nullity the decision of the other. See N.I.M.B. Ltd Vs. UBN Ltd (2004) 12 NWLR (Pt. 888) 599 and Seamarine Int’l Ltd. Vs. Ayetoro Bay Agency (2015) LPELR 24785 (CA).
Let me add that a judgment by consent is intended to put a stop to litigation between the parties just as much as is a judgment which results from the decision of the Court after the matter has been fought out to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgments, and were to allow questions that were really involved in the action to be fought over again in a subsequent action. Per Coker, JSC in Talabi Vs. Adeseye (1972) LPELR 3134 (SC).
I am satisfied that this point substantially dispossess off the whole action. It will not serve any further purpose to go beyond here. The matter is accordingly dismissed.
Learned Counsel for the appellant argued that the notice of preliminary objection at the trial Court was not supported by an affidavit, that therefore it was an objection on points of law, that the processes filed in Appeal No. CA/A/546/M/2013 were not placed before the trial Court to enable it actually determine whether the suit vis-a-vis the application for leave to appeal pending at the Court of Appeal constitute abuse of judicial process, that the reliefs sought for in CA/A/546/M/2013 and the issue to be determined therein are different from the reliefs claimed for and the issues for determination in the suit leading to this appeal, that CA/A/546/M/2013 is seeking leave to appeal to set aside the consent judgment of the Federal High Court on the ground of fraud and nullity for lack of jurisdiction of the Federal High Court over administration of estate, that the present suit is seeking to remove the 1st respondent as sole administrator for flagrant disregard of his obligation as administrator of the Estate of late Chief Joseph Uchechukwu Igweh, that the parties in CA/A/546/M/2013 are the directors of Bolingo Hotel and Towers Ltd and the Corporate Affairs Commission, that the parties in the present suit are beneficiaries of the Estate of Late Chief Joseph Uchechukwu Igweh and the Probate Registrar, that even if leave to appeal is granted in CA/A/546/M/2013 and the consent judgment set aside in the ensuing appeal, it would not result in the removal of the 1st respondent as administrator of the said Estate nor would it result in the appointment of the appellant as administrators in his place, that the trial Court should not have relied on a proposed notice of appeal (an exhibit) attached to the application for leave to appeal in deciding the objection, that the trial Court failed to give reasons why the present suit constitute an abuse of the process in CA/A/546/M/2013, that there is nothing in the record to show which between this suit and CA/A/546/M/2013 was first in time, that there is nothing in the consent judgment that suggest that the 1st respondent cannot be removed as administrator of the estate if he fails in the discharge of his duties, that both sides have concluded their evidence in the case, that the trial Court did not pronounce on all the issues raised by the parties before it in the case, that the 1st respondent in his address at the trial court did not proffer any argument on abuse of process and did not mention Appeal No. CA/A/546/M/2013, that it is worrisome how the trial Court came to the conclusion that the suit is an abuse of Court process in the light of Appeal No. CA/A/546/M/2013.
Learned Counsel for the appellants further submitted that this court can exercise its power under S.15 of the Court of Appeal Act to determine the merit of the substantive suit since the parties hard concluded their evidence and final addresses and have nothing more to do. He followed this submission with an analysis of the pleadings and urged this Court to grant the reliefs sought by the appellants in their statement of claim.
Learned Counsel for the 1st respondent argued that the appellants are under the mistaken view that the trial Court declined jurisdiction and dismissed their claim solely on the ground of abuse of process, that the issues that emanated from the consent judgment are the appointment of an administrator of the estate of the late father of the parties and the control and management of the estate, that the present suit seeks reliefs that amount to inviting the trial Court to sit on appeal over the said consent judgment of the Federal High Court, that hence the trial Court held it has no jurisdiction to do so, that the consent judgment until set aside constitutes res judicata, that the consent judgment being the subject of a pending Appeal No. CA/A/685/2017, is lis pendens, that the trial Court correctly declined jurisdiction to try the suit.
Learned Counsel for the 1st respondent submitted under issue No. 1 that the appellants are estopped from challenging the grant of the letters of administration to the 1st respondent having consented to the said grant and benefitted from the 1st respondent’s acts of removing the control and management of the estate of their deceased father from their late father’s wife, Dr. (Mrs) Bekky Igweh, their common adversary.
Let me now determine the merits of the above arguments of both sides.
The judgment of the trial Court held that the processes abused by the suit before it is Appeal No. CA/A/546/M/2013 which is a pending application for leave to appeal against the consent judgment of the Federal High Court in Suit No. FHC/ABJ/CS/237/2006 and the said subsisting consent judgment that had appointed the 1st respondent the Sole administrator of the estate of Late Chief Joseph Uchechukwu Igweh.
The trial Court, after holding that the application for leave to appeal in CA/A/546/M/2013 against the consent judgment of the Federal High Court and the suit before it were filed same day, 3-10-2013, did not consider how the suit before it is an abuse of the process in Appeal No. CA/A/546/M/2013. It rather proceeded to juxtapose the reliefs sought for in the appeal leave was sought to bring by the application in CA/A/546/M/2013 and the reliefs sought for in the suit before it and held that “the above reliefs to my mind have the tendency of achieving the same result from those sought from the Court of Appeal.” The implication of this holding is that the suit abused the process of Court by multiplicity of actions.
Abuse of Court process by multiplicity of actions exists where two or more actions between the same parties, claiming for the same reliefs and or involving the same issues are pending in one or more Courts. The earliest process or action is said to be abused by the later or subsequent action or actions. So to establish abuse of Court process it must be shown that the later action or process has parties, issues, subject and reliefs similar to the parties, issues, subject matter and reliefs of an already existing and pending process or action. See Igbeke v. Okadigbo (2013) LPELR 20664 (SC).
The application for leave to appeal in CA/A/546/M/2013 and Suit No. FHC/HC/CV/330/2013 were filed on the same day. The parities, subject matter, issues and the reliefs sought in the application for leave to appeal are obviously different from the parties in suit No. FHC/HC/CV/330/2012. The relief sought for in CA/A/546/M/2013 is leave to appeal against the consent judgment of the Federal High Court in suit No. FHC/ABJ/CS/237/2006. The reliefs claimed for in suit No. FCT/HC/CV/330/2013 are reproduced in pages 4 to 5 of this judgment. The reliefs seek the setting aside of the appointment of the 1st respondent as sole administrator of the estate of late Chief Joseph Uchechukwu Igweh and his replacement with the appellants as the administrators and administratrix of the said estate. The issue in CA/A/546/M/2013 which is whether the applicants therein are entitled to be granted leave to appeal against the said consent judgment is different from the issue in suit No. FHC/ABJ/CS/237/2006 which is whether the 1st respondent abused his power as sole administrator of the said estate and thereby breached the trust vested in him by that office and is therefore liable to be removed as such sole administrator
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and be replaced by the appellants as administrators and administratrix of the estate. The parties to the application for leave to appeal are the directors of Bolingo Hotels and Towers Limited and the Corporate Affairs Commission, while the parties to suit No. FHC/ABJ/CS/237/2006 are the beneficiaries of the estate of Late Chief Joseph Uchechukwu Igweh and the Probate Registrar of the High Court of Federal Capital Territory.
The reliefs sought for in CA/A/546/M/2013 do not include an order to set aside the consent judgment in suit No FHC/ABJ/CS/237/2006 and an order dismissing suit No FHC/ABJ/CS/237/2006. No such reliefs were sought for in CA/A/546/M/2013. Those reliefs were contained in the proposed notice of appeal attached as an exhibit to the affidavit in support of the application for leave to appeal against the consent judgment. That appeal and the reliefs sought for therein would come into existence only when leave to bring the appeal is granted and the appeal is filed. Before then, there would be no appeal pending. As it is the trial Court wrongly relied on the said proposed notice of appeal as evidence of a pending appeal and the reliefs sought
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for therein. So the conclusion it reached that the reliefs sought for in suit No. FCT/HC/CV/330/2013 has a tendency of achieving the same result as the reliefs sought from the Court of Appeal has no valid basis and is therefore wrong.
In the light of the foregoing, I hold that the decision of the trial Court that suit No. FCT/HC/CV/330/2013 is an abuse of Court process because of the pendence of CA/A/546/M/2013 is wrong. There is nothing in the record of this appeal that shows the existence of such abuse of Court Process.
Let me consider the decision of the trial Court that since the consent judgment that determined that ?Mr Cyprian Okechukwu Igweh who is the head of the family solely handles the administration of the estate. He will be transparent and fair in his rule as administrator of the family is subsisting, Suit No. FCT/HC/CV/330/2013 by asking the trial Court to remove the 1st respondent as sole administrator and replace him with the appellants as administrators and administratrix seeks the setting aside of that consent judgment by the trial Court, that the trial Court being of coordinate jurisdiction with the Federal High Court
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that gave the consent judgment lacks the jurisdiction to set it aside, vary or nullify it, that only the Court of Appeal can interfere with it, that the issue of who should be the administrator of the estate having been settled by the consent judgment cannot be relitigated between the parties.
The principle that a Court lacks the jurisdiction or power to review its own decision or that of a Court of co-ordinate jurisdiction presupposes that the issue earlier decided by that Court or a Court of co-ordinate status has been reopened before the same Court or another Court of co-ordinate jurisdiction to be decided again between the same parties and over the same subject matter. The principle that the issue have been decided by a Court of competent jurisdiction cannot be relitigated again except by way of an appeal against that decision also proceeds on the same basis. So for the above two principles to apply, the issue decided in the consent judgment must be the same with the issue to be decided in the present case and the parties and subject matter in both cases must be the same.
The trial Court was wrong to have invoked and applied those two principles in deciding that it lacks the jurisdiction to entertain and determine suit No. FCT/HC/CV/330/2013 because, as I have already held above, the parties in FHC/ABJ/CS/237/2006 are different from the parties in FCT/HC/CV/330/2013, whereas the consent judgment in FHC/ABJ/CS/237/2006 appoints 1st respondent as sole administrator, the subject matter and issue in suit No. FCT/HC/CV/330/2013 is how he has been administering the estate and whether he has been transparent and fair in doing so and if he has not been transparent and fair, whether he should not be removed as administrator and replaced by the appellants as co-beneficiaries of that estate. What the consent judgment decided is clearly different from the issues raised for decision in FCT/HC/CV/330/2013 and the reliefs are different. So Suit No. FCT/HC/CV/330/2013 does not seek a review of the consent judgment of the Federal High Court in Suit No. FHC/ABJ/CS/237/2006 and is not relitigating any issue already settled by that consent judgment.
It is not in dispute that the trial Court did not decide the merit of the subject matter of Suit No. FCT/HC/CS/330/2013 and the issues raised therein for determination as it held that it has no jurisdiction to do so for the reasons restated above. Both parties herein have invited us to exercise our power under S.15 of the Court of Appeal Act 2004 to determine the merit of the subject matter of suit NO. FCT/HC/CS/330/2013. There is no doubt that by virtue of S.15 of the Court of Appeal Act 2004, this Court has the discretionary power to do what the trial Court should do but failed to do in the trial proceedings. But where the trial Court declined jurisdiction to determine and decide a case, I think that, upon the finding of this Court that the trial Court wrongly declined jurisdiction to determine the matter before it, it would be a better practice to return the case to the trial Court to be tried or completely tried and determined, so that this Court would be restricted to dealing with how the trial Court dealt with the evidence and the issues before it on the merit of the case.
In the light of the foregoing, the sole issue for determination in the appellant’s brief is resolved in favour of the appellants.
On the whole, this appeal succeeds as it has merits. It is accordingly allowed. The judgment of the High Court of Federal Capital Territory in Suit No. FCT/HC/CV/330/2013 delivered on 29-9-2016 by U.A. Musale J., is hereby set aside. Suit No. FCT/HC/CV/330/2013 is remitted back to the High Court of the Federal Capital Territory for retrial. The Rt. Hon. The Chief Judge of the High Court of the Federal Capital Territory shall reassign the suit to another judge of that Court for retrial.
The respondents shall pay costs of N400,000.00 to the appellants.
ADAMU JAURO, J.C.A.: I had the benefit of reading in advance the judgment just delivered by my learned brother, Emmanuel Akomaye Agim, JCA. I am in complete agreement with the reasoning and conclusions contained therein to the effect that the appeal is meritorious and ought to be allowed.
I adopt the said judgment as mine in allowing the appeal. I abide by all consequential orders made therein.
STEPHEN JONAH ADAH, J.C.A.: I was privileged to read the draft of the judgment just delivered by my learned brother, Emmanuel Akomaye Agim, JCA
I am in agreement with the reasoning and conclusion that the appeal is meritorious. I too allow the appeal and order the judgment of the lower Court set aside as ordered in the lead judgment of my learned brother.
Appearances:
Chief F.O. Fagbohungbe, SAN with him, Dapo Oduwole, Esq. and Oluwasegun Ayinde, Esq.For Appellant(s)
S.I. Ameh, SAN, FCIArb, FCIMC with him, Dr. Maiyaki Theodore Bala, Esq, D.M. Idoko, Esq., F.U. Emmanuel, Esq., Ekele Atadoga Esq., A.O. Nwankwere, Esq. for the 1st RespondentFor Respondent(s)
