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AL-SULTAHIR CO. LTD v. UNITY BANK (NIG.) PLC (2022)

AL-SULTAHIR CO. LTD v. UNITY BANK (NIG.) PLC

(2022)LCN/16172(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Friday, June 24, 2022

CA/K/24/2018

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

AL-SULTAHIR COMPANY LIMITED APPELANT(S)

And

UNITY BANK NIGERIA PLC RESPONDENT(S)

 

RATIO

WHETHER OR NOT A PARTY CAN SPLIT A GROUND OF APPEAL TO DISTILL SEVERAL ISSUES FOR DETERMINATION OF APPEAL

We have stated this principle of law, several times, that one cannot split a ground of appeal, to distill several issues for determination of appeal. And that where a party combines a defective ground of appeal with a valid one, to argue an issue for determination of appeal, the defective ground of appeal pollutes the entire argument and renders the argument, incompetent. There are many decided authorities on this, including the recent cases of North West Petroleum & Gas Co. Ltd and Anor Vs Chigozie Iloh & Ors (2021) LPELR – 55509 CA, where we held:

“…The law is trite that arguing a valid ground(s) of appeal (or issue distilled therefrom) together with a defective ground(s) (or issue(s)) is not permitted, as it makes the argument incompetent. This is because, the inclusion of the defective ground(s) or issue(s) in the argument, vitiates the entire submission, as the virus of defective ground(s) or issue(s) has infected the valid ground or issue, and the entire argument. See the case of Augustine & Anor Vs Apugo & Ors (2019) LPELR – 48822 (CA), where it was held: “1st Respondent argued issues 2 and 3 together, and I think that corrupted the issue 2, having earlier held that the issues 3 and 5 for determination (of the appeal) are incompetent for proliferation of issues. A party, in my view, cannot argue an invalid issue for determination of appeal with a valid one. See Ezuma & Anor Vs FRN (2017) LPELR – 43382 (CA). Even by joining the said ground two with ground one, to argue the 1st issue, that joining has corrupted the said issue and the argument thereon… Uzoho vs. Asugha (2017) LPELR -42073 (CA)… The law is trite, that combining an incompetent ground of appeal with a valid one, to raise and argue issue in appeal, is a serious legal blunder, and renders the issue incompetent, as the defective/incompetent ground has infected the valid ground with its virus of incompetence.” See Akpan vs. Bob & Ors (2010) LPELR – 376 SC; (2010) 17 NWLR (pt. 1223) 42. I therefore discountenance the said argument of issues 2 and 3, argued together by the 1st Respondent.” See also the case of Godwin Loke Vs IGP & Anor (1997) 11 NWLR (Pt. 527) 57. See also Garba Vs Gov. of Kano State & Ors (2022) LPELR-57540 (CA). PER MBABA, J.C.A.

THE ESSENCE OF THE PRINCIPLE OF RES JUDICATA

The essence of the principle of res judicata was captured in the case of Ike Vs Ugboaja (1993) LPELR-1476 SC where the Supreme Court held:
“A plea of res judicata robs the Court of its jurisdiction and that explains why in practice, the plea has always been used only as a defense. It is a formidable weapon which may be pleaded in the statement of defense or in the plaintiff’s reply to the statement of defense should the need arise. But by its very nature, res judicata should have no place in the statement of claim. It is unreasonable for the plaintiff to embody in his own claim the plea of res judicata… Such a course of action would lead to absurdity……”
See also Section 173 of the Evidence Act, 2011:
“Every judgment is conclusive proof, as against parties and privies of facts directly in issue in a case, actually decided by the Court, and appearing from the judgment itself to be ground on which it was based unless evidence was admitted in the action in which the judgment was delivered, which is excluded in the action in which that judgment is, intended to be proved.” PER MBABA, J.C.A.

FACTORS TO BE PRESENT FOR THE DOCTRINE OF ESTOPPEL PER REM JUDICATA TO APPLY

And the case of Yanaty Petro Chemical Ltd Vs EFCC (2017) LPELR – 43473 (SC):
“For the doctrine of estoppel per rem judicata to apply, it must be shown that (a) the parties; (b) the issues; and (c) the subject matter in the previous action were the same as those in the action in which the plea is raised. Once these ingredients of res judicata are established, the previous judgment stops the plaintiff from making any claim contrary to the decision in the previous case. See Odjevwedje Vs Echanokpe (1987) 1 NWLR (Pt 52) 633, Ezeanya Vs Okeke (1995) NWLR (Pt 616) 476.
See also case of Ladimeji Vs Salami (1998) LPELR-1735 (SC), where it was held:
“It is well settled that once the plea is made out by the party seeking to rely on it, the claim filed by the other party would be dismissed on the ground that the Court lacks jurisdiction to allow parties to relitigate the same issues again. The plea of res judicata therefore robs the Court of its jurisdiction; and that explains why, in practice, the plea has always been used only as a defence. It is formidably weapon which may be pleaded in the statement of defence, should the need arise. But, by its very nature, res judicata should have no place in the statement of claim. it is unreasonable for the plaintiff to embody in his own claim the plea of res judicata.”
In the case of Cole Vs Jibunoh & Ors (2016) LPELR – 40662 (SC) it was held, as follows:
“Where a Court of competent jurisdiction has finally settled a matter in dispute between parties, neither party or privy may relitigate that issue as under the guise of bringing a fresh action, since the matter is said to be res judicata. The judgment in Suit No. ID/1082/90 is a final judgment of a competent Court, which is a judgment in rem. The finding of Martins J. in Suit No. ID/1082/90 is binding on the Appellant in this case and estops her from raising in Suit No. ID/3228/94 the issue that have been finally decided in that earlier case. See Hi-FLOW FARM INDUSTRIES LTD V. UNIVERSITY OF IBADAN (1993) NWLR (Pt.290) 719 at 724.” Per GALADIMA, JSC.
 PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the decision of Kano State High Court in Suit No. K/283/2014, delivered on 20th July, 2017 by Hon. Justice Ibrahim Musa Mohammed, wherein the learned trial Judge dismissed the claim by the Plaintiff (now Appellant).

At the trial Court, Appellant had sought the following reliefs, as per the Writ of Summons, filed on 9/6/2014:
(1) A declaration that the Plaintiff is entitled to the interest on the value of seven cheques paid into the Plaintiff’s account with the Defendant No.400005 but not credited by the Defendant and which the Kano State High Court in Suit No. K/755//2005 decided that the Plaintiff is entitled to the value of the said Cheque (sic) in its judgment of 11/10/2013 in favour of the Plaintiff.
(2) An order of Court directing the Defendant to pay over to the Plaintiff all the interest that accrued from value of seven cheques lodged with the Defendant and which the Defendant refused, failed and neglected to credit the Plaintiff’s account no. 400005 maintained by the Plaintiff with the Defendant.

(3) The sum of N308,512,427. 87k (Three Hundred and Eight Million, Five Hundred and Twelve Thousand Four Hundred and Twenty-Seven Naira, Eighty-Seven Kobo only) being that interest that accrued on the sum of N16,800,000.00k (Sixteen Million Eight Hundred Thousand Naira) lodged with the Defendant in 1999 which was not credited into the Plaintiff’s account and which the Kano State High Court in Suit No. K/755/2005 confirmed that the Plaintiff is entitle (sic) to the value in its judgment dated 11th October, 2013.
(4) General damages.
(5) The cost of this action and any other relief(s) in the interest of justice.

The parties had filed and exchanged pleadings, called witnesses and tendered exhibits. After the hearing and consideration of the evidence and addresses of Counsel, the learned trial Judge dismissed the suit, and said (among other things):
“On the issues as I have stated earlier, all the parties herein by their pleadings and evidence agreed that there was a valid judgment between the parties in Suit No. K/755/2005, delivered by this Hon. Court presided over by Hon. Justice Wada Abubakar Omar (Rtd) in respect of the issue N16,800,000.00 bank cheques deposited in the Plaintiff’s account no. 400005 with the Defendant. The law in respect of a situation of this nature is very clear. Where a competent Court has determined on (sic) issue and entered judgment there on, neither of the parties to the proceedings may relitigate that issue, formulating a fresh claim since the matter is resjudicate (sic). This applies to every point which properly belonged to the subject matter of this litigation and which the parties exercising reasonable diligence might have brought forward at the time but have failed to do so due to their negligence, inadvertence or even by accident… based on the above. Therefore, despite the fact that the Plaintiff has been (sic) failed to include the claim of interest from 1999 to the date of judgment before the Court, as he stated, due to the inadvertence of his Counsel, I completely agree with the learned Counsel to the Defendant that the claim was sought (sic) by issue estoppels and res-judicate (sic). He cannot be allowed, I hereby hold to relitigate the issue again. And this Court lacks the requisite jurisdiction to entertain same and has therefore became (sic) functus officio.
Furthermore, the claim of the Plaintiff of N308,512,427.87k from 1999 to the date of judgment and how he arrived at that, with all material particulars, have not been specifically pleaded in his pleading. Contrary to the submission of learned Counsel to the Plaintiff, this Court is unable to find sufficient particulars of the Plaintiff’s claim therein, being in the realm of special damages. And it is trite that claim of special damages must be specifically pleaded and strictly proved by the oral and documentary evidence…
In fact, PW1 has specifically stated under cross-examination, that “the CBN gives yearly monitoring guidelines on lending and deposits interest, the Central Bank gives prime interest rate and allows the Bank to increase the interest to a certain margin…
Based on all the above, I hereby hold that this case… filed by the Plaintiff is an abuse of the Court’s process and lacks merit.
All issues therefore are decided in favour of the Defendant. And this Hon. Court lacks the requisite jurisdiction to grant the reliefs sought by the Plaintiff as it has became (sic) functus officio. Consequently, the case is hereby dismissed…” (See Pages 153 – 155 of the Records of Appeal)

Dissatisfied with the above, Appellant filed this appeal, as per the Notice of Appeal, filed on 28/8/2017 (Pages 157 to 161 of the Records of Appeal), which raised 5 grounds of appeal. Appellant filed brief of argument on 9/2/2018. Appellant distilled two (2) issues for the determination of the appeal, as follows:
(1) Whether in the exact context of the claims of the Appellant before the trial Court, the learned trial Judge was right to have held that the claims of the Appellant were caught by none (sic) estoppel and res-judicata thereby depriving the trial Court of jurisdiction to determine the said claims? (Grounds 1, 3 and 4)
(2) Whether the trial Court was right to have similarly dismissed the Appellant’s claims totaling N308.512.427.87 in the manner it did despite the existence of unchallenged evidence that established this claim in favour of Appellant? (Grounds 2 and 4)

The Respondent filed amended brief of arguments on 31/5/2018, which was deemed duly filed on 18/2/2022, with 2 issues for determination, namely:
(1) Whether the Appellant’s action is caught by the doctrine of Estoppel per Rem judicata (Grounds 1, 3 and 4)
(2) Whether the Appellant has discharged the burden of proving the interest in the sum of N308,512,427.87 against the Respondent. (Ground 2)

I shall consider this appeal as per the issues distilled by the Respondent, which are, however, identical with those of the Appellant, but more pungent.

Arguing the appeal on 10/5/2022, Appellant’s Counsel Salisu Sule Esq., who settled the brief, on the issue 1, answered in the negative, saying that the suit was not caught by the doctrine of Estoppel per Rem Judicata. Counsel recounted the brief facts of the case, to the effect that Appellant’s earlier Suit No. K/755/2005, against the Respondent, ended successfully in favour of Appellant on 8/10/2013, whereof the trial Court granted the relief of N16,800,000 to Appellant with 10% interest thereon and N50,000.00 cost; that this Suit K/283/2014 (on appeal) was meant to claim interest in the said sum of N16,800,000 from the 1999, till the date of judgment in the case.

Counsel argued that in spite of the fact that the Respondent had raised issue of Res Judicata in her pleadings, Appellant did not deem it necessary to file a reply to the statement of defence.

He relied on the definition of estoppel as per the case of Ex-parte Salami Adeshina (1993) 4 NWLR (Pt. 442) 254, Nwaneri Vs Oriuwa (1995) SCNLR 336, to argue that the suit was not caught by the doctrine of res judicata and issue estoppel. He admitted that the Issue of interest (21% interest on the N16.8M) was not part of the previous case, but was the fulcrum of the Suit No. K/283/2014! He urged us to resolve the issue 1 for Appellant.

On issue 2, whether the learned trial Judge was right to dismissed Appellant’s claim of N308,512,427.87 in the manner he did, Counsel answered in the negative.

DEFECTIVE/PROLIFERATION OF ISSUES
The issue 2 by Appellant is defective and incompetent, as Appellant’s Counsel claimed to have distill the said issue from grounds 2 and 4 of the Appeal, after having used the ground 4, together with grounds 1 and 3, to distill issue 1, which he argued. The said ground 4 was therefore no longer available to combine with the ground 2, to distill the said issue 2!
We have stated this principle of law, several times, that one cannot split a ground of appeal, to distill several issues for determination of appeal. And that where a party combines a defective ground of appeal with a valid one, to argue an issue for determination of appeal, the defective ground of appeal pollutes the entire argument and renders the argument, incompetent. There are many decided authorities on this, including the recent cases of North West Petroleum & Gas Co. Ltd and Anor Vs Chigozie Iloh & Ors (2021) LPELR – 55509 CA, where we held:

“…The law is trite that arguing a valid ground(s) of appeal (or issue distilled therefrom) together with a defective ground(s) (or issue(s)) is not permitted, as it makes the argument incompetent. This is because, the inclusion of the defective ground(s) or issue(s) in the argument, vitiates the entire submission, as the virus of defective ground(s) or issue(s) has infected the valid ground or issue, and the entire argument. See the case of Augustine & Anor Vs Apugo & Ors (2019) LPELR – 48822 (CA), where it was held: “1st Respondent argued issues 2 and 3 together, and I think that corrupted the issue 2, having earlier held that the issues 3 and 5 for determination (of the appeal) are incompetent for proliferation of issues. A party, in my view, cannot argue an invalid issue for determination of appeal with a valid one. See Ezuma & Anor Vs FRN (2017) LPELR – 43382 (CA). Even by joining the said ground two with ground one, to argue the 1st issue, that joining has corrupted the said issue and the argument thereon… Uzoho vs. Asugha (2017) LPELR -42073 (CA)… The law is trite, that combining an incompetent ground of appeal with a valid one, to raise and argue issue in appeal, is a serious legal blunder, and renders the issue incompetent, as the defective/incompetent ground has infected the valid ground with its virus of incompetence.” See Akpan vs. Bob & Ors (2010) LPELR – 376 SC; (2010) 17 NWLR (pt. 1223) 42. I therefore discountenance the said argument of issues 2 and 3, argued together by the 1st Respondent.” See also the case of Godwin Loke Vs IGP & Anor (1997) 11 NWLR (Pt. 527) 57. See also Garba Vs Gov. of Kano State & Ors (2022) LPELR-57540 (CA).
I therefore strike out Appellant’s issue 2, together with the arguments thereon, for incompetence.

Learned Counsel for the Respondent N.A. Dangiri Esq., S.A.N, on whether the Appellant’s action was caught by the doctrine of Estoppel per rem judicata, answered in the affirmative. He argued that after obtaining judgment in Suit No. K/755/2005 on 11/10/2013, for the claim of N16.8m and 10% interest thereon, from the date of the judgment and cost of N50,000.00, Appellant cannot originate a fresh case on the same subject matter between the same parties, in Suit No. K/283/2014, on a purported interest on the said N16.8m. He relied on the case of Ukaegbu Vs Ugoji (1991) 6 NWLR (Pt.196) 127 and Sections 169 – 174 of the Evidence Act for the definition of Estoppel; that there must be some previous act, declaration, act or omission, intentionally, made by a person which caused or permitted the other person to believe to be true and upon which the latter acted to his detriment. He relied on the case of Osunrinde Vs Ajamogun (1992) 6 NWLR (Pt.246) 156.

Counsel said it was clear from the trial Court, and substantial paragraphs of the pleadings of the Defendant in the Statement of defence, that the case being litigated by the Plaintiff (Appellant) had been caught by the doctrine of res-judicata and issue estoppel. He said that Appellant did not even care to file a Reply to the said Statement of defence on the point! He relied on Section 173 of the Evidence Act, 2011, to the effect that:
“Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in a case, actually decided by the Court, and appearing from the judgment itself to be ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered, which is excluded in the action in which that judgment is, intended to be proved.”

Counsel also relied on the case of Alashe Vs Olori-Ilu (1964) LPELR – 25161 SC, Yoye Vs Olubode (1974) LPELR – 3531 SC and Yanaty Chemical Ltd Vs EFCC (2017) LPELR – 43473 SC, where the Supreme Court held:
“For the doctrine of estoppel per rem judicata to apply, it must be shown that (a) the parties; (b) the issues; and (c) the subject matter in the previous action were the same as those in the action in which the plea is raised. Once these ingredients of res judicata are established, the previous judgment stops the plaintiff from making any claim contrary to the decision in the previous case. See Odjevwedje Vs Echanokpe (1987) 1 NWLR (Pt 52) 633, Ezeanya Vs Okeke (1995) NWLR (Pt 616) 476.”

Counsel also relied on Ike Vs Ugboaja (1993) LPELR – 1467 (SC) where it was held that:
“A plea of res judicata robs the Court of its jurisdiction and that explains why in practice, the plea has always been used only as a defense. It is a formidable weapon which may be pleaded in the statement of defense or in the plaintiffs reply to the statement of defense should the need arise. But by its very nature, res judicata should have no place in the statement of claim. It is unreasonable for the plaintiff to embody in his own claim the plea of res judicata… Such a course of action would lead to absurdity……”

Counsel noted that while Respondent had pleaded the res judicata prominently, in his defense, the Appellant, itself, supplied the decision thereof as per Exhibits B and B1, being the judgment in the previous suit no. K/755/2005, which the learned trial Court in this case (K/283/2014) relied upon to dismiss Appellant’s claim for being caught by the doctrine of res judicata.

Counsel asserted that having disposed of the suit no K/755/2005, on the said claim of ₦16.8 Million Naira by Appellant against the Respondent on 8/10/2013, in favour of Appellant, with interest of 10%, from the date of judgment, the plaintiff (Appellant) cannot be allowed to bring another case on the same complaint, and cannot bring his case in instalment! He relied on the case of Tukur Vs Uba (2012) LPELR – 9337 SC, where Ariwoola, JSC held:
“Generally, estoppels means “a bar that prevents one from asserting a claim or a right that contradicts what one has said or done before, or what has been legally established as true. A bar that prevents the re-litigation of issues”. Therefore, estoppels by silence means “estoppels that arises when a party is under a duty to speak but fails to do so”. See Black’s Law Dictionary, Ninth Edition pages 629 and 630, respectively.”

Counsel said it was not enough for Appellant’s Counsel to raise and argue in their paragraph 15 of the statement of claim (page 7 of the Records), that it was the fault and negligence of the former Counsel for Appellant in the previous suit that led to the omission to claim the 21% interest in the said previous suit, on the said claim of ₦16.8M, hence the new suit! He relied on Jimoh Vs Akande (2009) 1 SCNJ 107 at 128 and Ebba Vs Ogodo (2000) LPELR – 983 (SC) where it was held:
“The rule is that each party must use reasonable diligence to bring forward every point which he thinks would help him. If he omits to raise any particular point from negligence, inadvertence or even accident (which would or might have decided in his favour) he may find himself shut out from raising the point again, or at any time, in any case where the self-same issue arises in the same or subsequent proceedings.” Per Ejinwunmi, JSC

Counsel submitted that the issues decided in the previous suit, having been decided by the Court, cannot be re-litigated before another judge or umpire. He relied on Ezeani Vs Onwordi (1986) 4 NWLR (Pt 33) 27. He urged us to resolve the issue against Appellant and to dismiss the Appeal.
RESOLUTION OF THE ISSUE
I shall consider this appeal on the remaining Appellant’s issue one (as better expressed by the Respondent’s Counsel): Whether Appellant’s action was caught by the Doctrine of Estoppel pre rem judicata.

The facts of this suit at the lower Court were simple and straight forward. Appellant had successfully maintained an action against the Respondent in Suit NO. K/755/2005, claiming the sum of ₦16.8 Million for failure of the bank to credit Appellant’s cheques (7 of them). The trial judge, Hon. Justice Wada Omar Rano had given judgment to Appellant and ordered the Respondent to pay the said sum of ₦16.8million to Appellant and a post-judgment interest thereon, at the rate of 10% per annum, from the date of judgment, being 11/10/2013. The Court also ordered costs of ₦50,000.00 against the Respondent, to the Appellant.
Appellant appeared not to have claimed pre-judgment interest in that suit no. K/755/2005, but appeared to have been emboldened by the success of the suit, to remember it should have claimed a pre-judgment interest in the suit, and so opted to file a fresh suit (No. K/283/2014) to seek the interest that would have accrued on the said ₦16.8 million in the covers of the Bank (Respondent) from 1999 till the date of the judgment – calculated by Appellant at speculated rate of 21%, per annum, amounting to ₦308,512,427.87 (Three Hundred and Eight Million, Five Hundred and Twelve Thousand, Four Hundred and Twenty-Seven Naira, Eighty-Seven Kobo). See Reliefs 1-3 of the Reliefs on pages 2-3 and 16-17 of the Records of Appeal.
​The Relief 3, clearly documents the source and motive of the Suit No. K/283/2014, thus:
“The sum of ₦308,512,427.87k… being the interest that accrued on the sum of ₦16,800,000.00 (Sixteen Million, Eight Hundred Thousand Naira) lodged with the Defendant in 1999, which was not credited into the plaintiff’s Account and which the Kano State High Court in Suit No. K/755/2005 confirmed that the plaintiff is entitled to the value in its judgment, dated 11th October, 2013.”
That said relief did not state the basis of Appellant’s calculation of the alleged accrued interest, to the tune of the ₦308,512,427.87, claimed. But it was obvious the suit was predicated on the earlier successful Suit No. K/755/2005, delivered on 11/10/2013. Thus, even the 21% interest touted in the evidence as the basis of the calculation of the alleged special damages was not pleaded in the Reliefs sought!
The Appellant appears to have been the one that introduced the idea of res-judicata in the claim, when it founded the new suit (No. K/283/2014) on the earlier Suit No. K/755/2005, delivered on 11/10/2013!
The Respondent had taken up the Appellant, timeously, in their statement of defence that Appellant cannot be allowed to relitigate the same case that had already been determined in Appellant’s favour, by taking out an issue in the case (accrued interest), which if Appellant had observed due diligence, could have been part of the original reliefs sought in the previous suit! See paragraph 8-9 of the statement of defence by Respondent. (Pages 33 of the Records).
I think the Respondent’s Counsel was right and the learned trial judge was in the right course, when he ruled that Appellant was caught by the doctrine of Issue Estoppels and res judicata. It said:
“The law in respect of a situation of this nature is very clear. Where a competent Court has determined on (an) issue and entered judgment thereon neither of the parties to the proceedings may relitigate that issue by formulating a fresh claim since the matter is res judicate (res judicata). This applies to every point which properly belonged to the subject matter of litigation and which the parties exercising reasonable diligence might have brought forward at the time but have failed to do so due to their negligence, inadvertence or even by accident.” (See pages 153-154 of the Records)
I cannot fault that sound finding and reasoning of the trial Court. If Appellant had shown due diligence and/or was interested in the said interest in Suit No. K/755/2005, over the said sum of ₦16.8 million, which subsequently became the judgment sum in the case on 11th October, 2013, Appellant would have asserted such claim as one of the reliefs sought in that case even as it sought the post-judgment interest of 10% per annum, which the Court granted in the judgment of 11/10/2013.
The essence of the principle of res judicata was captured in the case of Ike Vs Ugboaja (1993) LPELR-1476 SC where the Supreme Court held:
“A plea of res judicata robs the Court of its jurisdiction and that explains why in practice, the plea has always been used only as a defense. It is a formidable weapon which may be pleaded in the statement of defense or in the plaintiff’s reply to the statement of defense should the need arise. But by its very nature, res judicata should have no place in the statement of claim. It is unreasonable for the plaintiff to embody in his own claim the plea of res judicata… Such a course of action would lead to absurdity……”
See also Section 173 of the Evidence Act, 2011:
“Every judgment is conclusive proof, as against parties and privies of facts directly in issue in a case, actually decided by the Court, and appearing from the judgment itself to be ground on which it was based unless evidence was admitted in the action in which the judgment was delivered, which is excluded in the action in which that judgment is, intended to be proved.”
And the case of Yanaty Petro Chemical Ltd Vs EFCC (2017) LPELR – 43473 (SC):
“For the doctrine of estoppel per rem judicata to apply, it must be shown that (a) the parties; (b) the issues; and (c) the subject matter in the previous action were the same as those in the action in which the plea is raised. Once these ingredients of res judicata are established, the previous judgment stops the plaintiff from making any claim contrary to the decision in the previous case. See Odjevwedje Vs Echanokpe (1987) 1 NWLR (Pt 52) 633, Ezeanya Vs Okeke (1995) NWLR (Pt 616) 476.
See also case of Ladimeji Vs Salami (1998) LPELR-1735 (SC), where it was held:
“It is well settled that once the plea is made out by the party seeking to rely on it, the claim filed by the other party would be dismissed on the ground that the Court lacks jurisdiction to allow parties to relitigate the same issues again. The plea of res judicata therefore robs the Court of its jurisdiction; and that explains why, in practice, the plea has always been used only as a defence. It is formidably weapon which may be pleaded in the statement of defence, should the need arise. But, by its very nature, res judicata should have no place in the statement of claim. it is unreasonable for the plaintiff to embody in his own claim the plea of res judicata.”
In the case of Cole Vs Jibunoh & Ors (2016) LPELR – 40662 (SC) it was held, as follows:
“Where a Court of competent jurisdiction has finally settled a matter in dispute between parties, neither party or privy may relitigate that issue as under the guise of bringing a fresh action, since the matter is said to be res judicata. The judgment in Suit No. ID/1082/90 is a final judgment of a competent Court, which is a judgment in rem. The finding of Martins J. in Suit No. ID/1082/90 is binding on the Appellant in this case and estops her from raising in Suit No. ID/3228/94 the issue that have been finally decided in that earlier case. See Hi-FLOW FARM INDUSTRIES LTD V. UNIVERSITY OF IBADAN (1993) NWLR (Pt.290) 719 at 724.” Per GALADIMA, JSC
A party is not allowed to sue his opponent by installments, as that would amount to abuse of the Court process. And so a party cannot take an action to recover a debt from his debtor and after the successful recovery of the debt, takes another action to recover the interest accrued on the debt, which he failed to claim at the time of suing for the debt. Because, he was silent on the interest at the initial claim, it would be presumed he abandoned same or was not interested in the interest. See the case of Tukur Vs Uba (2012) LPELR – 9337 (SC) on estoppels by silence:
“Generally, estoppels means “a bar that prevents one from asserting a claim or a right that contradicts what one has said or done before, or what has been legally established as true. A bar that prevents the re-litigation of issues”. Therefore, estoppels by silence means “estoppels that arises when a party is under a duty to speak but fails to do so”. See Black’s Law Dictionary, Ninth Edition pages 629 and 630, respectively.”
See also Abubakar Vs Bebeji Oils Allied Products Ltd & Anor (2007) LPELR-55 SC, where it was held:
“It is now firmly settled in a long line of decided authorities, that where a Court of competent jurisdiction has settled, by a final decision the matters in dispute between the parties, none of the parties or his privy/privies may re-litigate that issue again by bringing a fresh action. The matter is said to be res judicata. The estoppel created is said to be by record inter parties. See the case of Osunrinde & 7 Ors v. Ajamogun & 5 Ors (1992) 6 NWLR (Pt. 246) 156 at 183-18: (1992) 7 SCNJ (Pt. 1) 79 at 106. In other words, the rule of estoppel per res judicata, requires that where a final decision is given by a Court of competent jurisdiction, the parties thereto, cannot be heard to contradict that decision in any subsequent litigation between them respecting the same subject-matter. As a plea, the decision operates as a bar to a subsequent litigation and as evidence, it is conclusive between the parties to it. See Sections 57 and 55 of the Evidence Act. See the case of Alhaji Oloriegbe v. Omotesho (1993) 1 SCNJ 30; (1993) 1 NWLR (Pt. 270) 386.”
Per OGBUAGU, JSC

I cannot therefore see any merit in this appeal as I resolve the issue against Appellant and dismiss the appeal.

Appellant shall pay the cost of this appeal assessed at One Hundred Thousand Naira (₦100,000.00) only, to Respondent.

ABUBAKAR MU’AZU LAMIDO, J.C.A.: My learned brother, ITA GEORGE MBABA, JCA obliged me a copy of his judgment. I have gone through same and agree with the reasoning and conclusion that there is no merit in the appeal. I adopt same as mine and have nothing more to add. For the same reasons, I also dismiss the appeal and abide by the order as to cost.

USMAN ALHAJI MUSALE, J.C.A.: I have read in draft the judgment delivered by my learned brother, ITA G. MBABA, JCA in this appeal. I entirely agree with the judgment and the way the issues were treated by My Lord. I adopt the reasoning and conclusion reached as mine and find that the appeal is unmeritorious. The appeal is equally dismissed by me.

I abide by the consequential orders made therein.

Appearances:

SALISU SULE, ESQ For Appellant(s)

N. A. DANGIRI, SAN, with him H. I. MAI-ULU, ESQ, A. A. BARDE, ESQ AND A. M. KARAYE, ESQ For Respondent(s)