ALHAJI TIAMIYU ELEBURUIKE V. ALHAJI RAHIM AKANO TAWA
(2010)LCN/4213(CA)
In The Court of Appeal of Nigeria
On Monday, the 12th day of July, 2010
CA/IL/97/2009
RATIO
GROUND OF APPEAL / PARTICULARS OF GROUND OF APPEAL : WHETHER FOR A GROUND OF APPEAL TO BE PROPER AND VALID IT MUST RELATE TO ITS PARTICULAR
The particulars are basically the reasons given by the appellant for the grounds of appeal. The particulars are aids to a better appreciation of the grounds of appeal and as such cannot be deemed to be stricto senso, the actual ground for the appeal. I am in tandem, with the view of the Appellant that for a ground of appeal to be proper and valid, it must relate to its particular, as was stated in HONIKA SAWMILLS LTD. VS. MARY OKOGIE HOFF (1994) 2 NWLR (Pt.326) 252 at 261. The above principle of law was further stated by SALAMI JCA as he then was, in the case of STRIPPING CIVIL ENGINEERING LTD. VS. YAHAYA (2002) FWLR (Pt. 114) 552 at 561, where it was held that:- “A ground of appeal to be proper and valid must relate to its particular. The penalty for the particulars not flowing from or relating to ground of appeal is striking out of the unrelated particulars.” Furthermore, in S.C.O.A. (NIG.) PLC. VS. MOHAMMED (2004) 4 NWLR (PT.862) 20, it was held that “Where the substantive grounds of appeal filed by an appellant contain enough information about the complaint of the appellant, the ground would not be described as vague or struck out simply because the particulars in support of the grounds of appeal are inelegantly drafted.” PER SOTONYE DENTON WEST J.C.A.
RULES OF INTERPRETATION OF STATUTES: HOW THE PROVISION OF THE STATUTE AND THE RULES OF COURT SHOULD BE READ
I am in agreement with the Appellant, that in interpreting and applying the provision of the statute and the rules of court, such rules cannot be read disharmoniously. The statute or rules must be read not only as a whole but in such a way that it will not defeat the purpose and objective of the makers, as stated by Karibi Whyte JSC (as he then was) in MATARI VS. DANGALADIMA (1993) (PT 281) PG. 266 at 281. PER SOTONYE DENTON WEST J.C.A.
RULES OF COURT: PURPOSE OF THE RULES OF COURT
I also agree that the Rules of court are made to do justice to the parties as was stated by Oputa JSC in NNEJI & ORS. VS. CHIEF NWANKWO & ORS. (1988) 3 NWLR (PT.81) 184 at 20167. PER SOTONYE DENTON WEST J.C.A.
PRELIMINARY OBJECTION : WHEN IS THE PROPER STAGE AT WHICH A DEFENDANT MAY RAISE A PRELIMINARY OBJECTION TO THE CLAIMANT SUIT
The plea/claim of the Appellant that the case being determined without being heard on the merit has breached their fundamental rights to fair hearing contrary to section 36 of the constitution of the Federal Republic of Nigeria, 1999 does not come into play in this case because as stated by the trial judge on page 200 of the record of proceedings. “The proper stage at which a defendant may raise a preliminary objection to the claimant suit should either be at the beginning or early-stage of the proceeding. CARLEN (NIG) LTD. VS. UNIVERSITY OF JOS (1994) 1 NWLR (PT 323) 631; CHIEF YAKUBU SANI VS OKENE LOCAL GOVERNMENT TRADITIONAL COUNCIL AND 1 OTHER (2008) 56 SC (PT 11) PG 131… PER SOTONYE DENTON WEST J.C.A.
DOCTRINE OF ISSUE ESTOPPEL: CIRCUMSTANCES WHERE ISSUE ESTOPPELS WILL ARISE; CONDITIONS THAT MUST EXIST FOR THE APPLICATION OF THE DOCTRINE OF ISSUE ESTOPPEL
The dictum of Oguwegbu JSC (as he then was) in JACOB OYEROGBA AND ANOR VS EGBEWOLE OLOPA (1998) 12 SCNJ 115 AT 129, where he stated thus- “Issue estoppel arises where an issue had earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in a subsequent proceeding between the same parties or their privies. The conditions for the application of the doctrine are that: 1. The same question was decided in both proceedings. 2. The judicial decision said to create the estoppel was final, and 3. The parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies…” PER SOTONYE DENTON WEST J.C.A.
PRIVY: DEFINITION OF THE WORD “PRIVY”
The concise law dictionary (sixth edition) page 264 defined privy as “One who is a party to or had a share or interest in something”. While the blacks law dictionary (eight editions) defined a privy as- “a person having a legal interest of privity in any action, matter, or property, a person who is in privity with another-privies in law such as-the term also appears to the content of litigating, in this sense, it includes someone who controls a law suit though not a party to it, someone whose interests are represented by a party to the law suit.” In the case of IYAYI VS. EYIGEBE (1987) 7 SCNJ 148 AT 152, privy was held to include all those who are privy to the parties in blood or title or interest, and estoppel per rem judicatum operates for, or against, not only parties but also those privies. PER SOTONYE DENTON WEST J.C.A.
Before Their Lordships
SOTONYE DENTON-WESTJustice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBEJustice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZEJustice of The Court of Appeal of Nigeria
Between
ALHAJI TIAMIYU ELEBURUIKEAppellant(s)
AND
ALHAJI RAHIM AKANO TAWARespondent(s)
SOTONYE DENTON WEST J.C.A., (Delivering the Leading Judgment): This appeal stems from the ruling of Honourable Justice Haliman Saleeman of the Kwara State High Court of Justice delivered on 3rd day July, 2009 striking out suit NO. KWS/148/2009 between Alhaji Tiamiyu Eleburuike, the appellant and Alhaji Akano Taiwo, the respondent on 18/1/2007. The appellant took out a writ of summons against the respondent. The claims in the writ of summons, are as follows.
1. A declaration that the claimant is the lawful owner of the piece or parcel of land situate directly opposite international Airport, Ogbomoso Road, Ilorin consisting of 356285 square metres covered by a certificate of occupancy NO KWS/0729.
2. A declaration that the entering unto the land by the defendant and his agent and making at cement blocks therein without the consent or authority of the claimant amount to trespass and is unlawful.
3. An order of perpetual injunction restraining the defendant by himself, agents, servants and privies from entering or doing anything whatsoever on the land that is adverse to the interest of the claimants.
4. N1,000,000. 00 Damages for trespass.
Thereafter the two parties filed and exchanged pleadings. The matter was thereafter slated for pre-trial conference. It was at the pre-trial conference that the defendant now respondent applied that the case be (treated as a special case under Order 34 at the Kwara State High Court Civil Procedure Rules, 2005. The learned trial judge struck out the suit on the ground that Certificate of Occupancy relied upon by the appellant is issue estoppel and that the matter is an abuse of court process.
Flowing from the above, the plaintiff now appellant filed a notice of appeal containing five grounds of appeal. Similarly, the appellant formulated three issues for determination as follows:
1. Whether the learned trial judge was right in striking out the claimant/appellants suit at preliminary stage of pre-trial conference without allowing the claimant/appellant to state his case.(grounds 1 & 2).
2. Whether the said judgment in suit NO. KWS/240/1997 which was subsequently affirmed by the court of appeal NO.CA/IL/38/2002 constitutes an issue estoppel before the learned trial judge, (grounds 3 & 4).
3. Whether the appellant’s suit before the lower court which culminated into this appeal constitutes an abuse of the court processes against case NO. KWS/240/1997 and Appeal NO. CA/IL/38/2002 and suit NO CVF/45/2006 relied upon by the learned trial judge. (Grounds 5 & 6).
The respondent on his own adopted the issues as formulated by the appellant with little modification. For ease of reference the issues are highlighted below.
1. whether the trial court was right when he held that the certificate of occupancy constitutes issue estoppels (grounds 3 & 4)
2. Whether the trial court was right when he held that the defendant is a privy in law to the defendant in the previous case as long as the issue relating to interest in land covered by the invalid certificate of occupancy is concerned, (grounds)
3. Whether the trial court was right when he held that the case before him constitutes an abuse of court process. (Grounds 1, 2 & 6).
The appellants vide his counsel adopted his appellant’s brief of argument and reply on point of law; praying this court to allow the appeal, while the respondents vide their counsel adopted the respondent brief of argument.
In determining this appeal, this court will appraise all the issues raised by parties where after all the issues will be determined. The issues as raised by the appellant’s will first be reviewed before that of the respondents.
APPELLANT’S ISSUE NO. 1
Whether the learned trial judge was right in striking out the claimant/appellants suit at the preliminary stage of pre-trial conference without allowing the claimant/appellant to state his case. (Grounds 1 & 2)
The Defendant/Respondent’s application before the lower court was premised on the provisions of Order 26! Rule 2 and Order 34 rule 1 of the Kwara State High Court (Civil Procedure) Rules 2005 praying the court for an order setting down for hearing of the special case raised by the Defendant/Respondent in paragraphs 7, 8 and 21 of his statement of defence.
The High Court Judge, in resolving the application in Respondent’s favour, held at pages 199, 200 and 210 of the record of proceedings that “This case is struck out”.
The Applicant’s counsel conceded, that based on a plethora of decided cases, a party can raise a point of law at the preliminary state of the case to challenge the jurisdiction of the court.
However, the situation in this present case is different, as the Appellant’s counsel submits that, the provision of the said Order 26 Rule 2 and Order 34(1) of the Kwara State High Court Civil Procedure Rule 2005 can not be read in isolation with the provision of other rules, particularly the provisions of Order 1 Rule 4(2) of the said Kwara State High Court Civil Procedure Rule 2005.
The Appellant’s counsel submits with greatest respect that the ruling of the trial judge in striking out the Appellant’s suit is in sharp contradiction of the above provision of the rules. The ruling of the trial judge would have been justified, supposing the Respondent was a party to the earlier proceeding in Suit No. KWS/240/1997, which eventually culminated into Appeal No. CA/IL/39/1997, therefore failure of .His Lordship to draw His attention to the foregoing, has led to a grave miscarriage of justice.
Appellant’s counsel, Tunde Falola Esq., further submits that the Kwara State High Court (Civil Procedure) Rules 2005 was made pursuant to the provision of Section 274 of the Constitution of the Federal Republic of Nigeria 1999 which empowers the Chief Judge of the state to make them. The Rules of court have a force of law.
He further stated that the provision of such statute or rule for the matter must be read in such a way that it will not defeat the purpose and objective of the makers. Counsel relied on the decision of the Supreme Court in MATARI VS DANGA LADIMA (1993) (PT. 281) PG. 266 @ 281.
In light of the above, appellant’s counsel submitted that the application of the provision of Order 26 Rules 2 and Order 34(1) of the Kwara State High Court (Civil Procedure) Rules 2005 without recourse to the provision of Order 1 rule 4(2), by the learned trial judge, has denied the Appellant his right to fair hearing. Also, in the interpretation of the above section(s), the striking out of the Appellant’s suit at the pre-trial conference stage, by the trial judge is a mere technical application of the rules of interpretation, which are not admissible in law; stating that the learned trial judge should have applied the provision of the rules holistically, as the rules are mere hand maids to do justice and the inflexibility of the rules will only render justice grotesque.
Appellant’s counsel further submits that assuming his Lordship has the power to so strike out the Appellant’s suit under the provision of Order 24 of the High Court (Civil Procedure) Rules 2005, the judge’s duty therein is discretionary arid such discretionary power ought to be exercised judicially and judiciously. Furthermore, Order 26 Rule 3 allows the learned trial judge, if in his opinion the decision on a point of law raised at the pre-trial conference disposes the whole action or any cause of action.
The decision to strike out the Appellant suit flows from both the Respondent’s Application dated, 26/03/2009 and the interpretation and application of the above provision. This assertion is supported by the learned trial judge’s findings at page 200 of the record when he held thus:
“The proper stage at which a Defendant may raise a preliminary objection to the claimant suit should either be at the beginning or early stage of the proceedings”
The word “or” make such other order, therein in Order 26 rules 3 makes the power of the learned trial judge to strike out the appellant suit discretionarily. Such discretion, the Appellant’s counsel submits, has not been exercised judicially and judiciously.
Counsel relied on the case of NNEJI & ORS VS. CHIEF NWANKWO & ORS. (1988) 3 NWLR (PT 81) 184 @ 20/27.
The learned counsel further submits that the trend before our superior courts now-a-days is that substantial justice should be done at the expense of undue adherence to rules of court and technicalities. Therefore, the learned trial judge ought to have given the appellant the opportunity of conducting his case(s) at full trial rather than relying on a procedural technicality(s), he cited the case of F.M.B VS ADU (2000) 23 WRN 1-191, 65 @ 73 per 15-30, where His Lordship Hon. Justice Muritala Aremu Okunlola (JCA as then was) puts the issue thus:
“therefore the supreme court has held in the case of NNEJI vs CHUKWU (1988) 3 NWLR (PT. 81) that the attitude of the supreme court has always been that whenever it is possible to determine a case on the merit, the court should not cling to mere technicalities.
ALSO, ANI VS NNA (1996) 4 NWLR (PT 440) 101; CHIME VS CHIME (1995) 6 NV^LR (PT. 404) 734 P 750-751.
Furthermore, to admonish both the parties and the court on the need to ensure compliance with the cause of justice in applying the rules of court, see F.S.B V. IMANO (2000) 6 WRN pages 12-13 per 40-5.
The Appellant’s counsel urged the learned trial judge, to hold that by not allowing the appellant to proceed to prosecute his case on the merit, has impeded the cause of justice in the appellant’s suit. He further reiterate that assuming without conceding however, that the court can strike out the appellant’s suit at the preliminary stage of pre-trial conference, based on the provision of Order 26 Rules 2 and Order 45 Rules (1), such practice negates the principle of Fundamental Right to fair hearing as enshrined in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria.
Counsel further stated that the duty to observe the rules of fair hearing is as old as jurisprudence; it has been given judicial interpretation and application by all superior courts of record and, in modern times, codified as Fundamental Human right under section 36 of the 1999 constitution of the Federal Republic of Nigeria and this has become trite. Fair hearing in the con of section 36 encompasses the plenitude of natural justice in the narrow technical sense of the twin pillars of natural justice audi alterem patem and nemo judex in causa sua. The principle, audi alterem patem which is germane to this issue, means that the other party must be heard.
The Appellant’s counsel relied on BABA VS NCATC (1991) 5 NWLR (PT 191) PG. 388 @ 403 holding 25 and ADIGUN VS AG OYO STATE (1987) 2 NWJLR (PT 53) 678. to submit that the decision of the learned trial judge not to hear and determine his case on the merit has denied the appellant of his right to fair hearing and the breach of S. 36 of the Constitution of the Federal Republic of Nigeria, 1999.
This court was urged to resolve the 1st issue in favour of the Appellant.
APPELLANT’S ISSUE NO. 2
Whether the judgment in Suit No. KWS/240/1997 which eventually culminated into Appeal No. CA/IL/38/2002, constitute issue estoppel before the learned trial judge.
Appellant’s counsel stated that the learned trial judge while reviewing the submission of learned counsels on both side, held as follows:
“from the above pronouncements as contained in the judgment of the previous case instituted by Alhaji Tiamiyu Eleburuike who is also the claimant in the present case before this court and which judgment was affirmed by the court of appeal, it means the certificate of occupancy relied upon by the claimant in this case cannot stand, same having been declared a nullity in the previous proceeding on the same subject matter. The principle of issue estoppel is that once an issue has been raised and distinctly determined between the parties, neither party as a general rule can be allowed to fight the issue all over again.”
The Appellant’s counsel submits that the judgment of the previous proceeding in Suit No. KWS/240/1997 which culminated into Appeal No. CA/IL/38/2002 can not be said to have created issue estoppel before the present Appellant and the respondent herein. The Appellant herein is also the claimant, but the respondent herein was never a party at all in those cases. This assertion was corroborated by the learned trial judge at page 207 of the record.
The Appellant’s counsel submits further, that before a judgment can operate as an estoppel per rem judicata, the parties to the two proceedings must be the same. Counsel cited the cases of VINCENT OKORIE & ORS VS PHILIP UDOM & ORS (1960) SC NLR 326, IDIGBE JSC in FADIORA VS GBADEBO (1978) 3SC @ 219 @ 228 NURENI OLALEKAN MAYA VS. MOSES OWOLABI (2001) FWLR (PT 81) 1777 @ 1978 – 1799 per H-C to support his claim, and further stated that, the present Appellant in the present suit was only a party in the previous proceedings in Suit No. KWS/240/1997. He similarly referred the court to the case of LAWAL VS SALAMI (2002) 2 NWLR (PT. 752) 687 @ 717, In support of his argument.
The Appellant’s counsel submitted, that the learned trial judge was wrong to have applied the doctrine of issue estoppel to the Appellant’s case, when the parties are not the same in the previous and present case most especially the weight attached to the case of BEBEJI VS ABUBAKAR by the lower court was erroneous .
Tunde Falola Esq, counsel to the appellant submitted that in suit No. KWS/240/1997 the plaintiff was ALHAJI TIAMIYU ELEBURUIKE the present Appellant, the defendant was one MR. PETER OYEWOLE whom the present defendant testified in favour of.
The Appellant’s counsel submits that throughout the proceeding in question, there was no where the present respondent claimed to have derived his title from either the present Appellant or the defendant in the said suit. Though judgment was given in favour of the benefit of the defendant/respondent in those cases; it can not endure for the good and benefit of the present respondent because he was neither a party nor a privy but a mere witness who has nothing to loose/benefit if he hasn’t testified.
Judgment of court is only binding on the parties/privies, he cited the cases Of NURENI OLALEKAN MAYA VS MOSES OWOLABI OSHUNTOKUN (SUPRA) at page 1800 per E & H. to buttress his point.
Thus, since the present respondent did not derive any title or claim through any of the parties in Suit No. KWS/240/1997 the judgment therein does not create issue estoppel between him and the present Appellant. He argued that for issue estoppel to arise,
(a) The same question must be decided in both proceedings
(b)The judicial decision which creates estoppel be final
(c) The parties to the judicial decision or their privies were the same as the parties (privies to the proceeding in which estoppel is raised).
Counsel cited the following decision to buttress his submission above; ALHAJA ASIFAT AKANBI VS. GBEMISOYE OYEWALE & 10R (2009) ALL FWLR (PT. 456) 1992 @ 1932-1933; par G-A FADIORA VS GBADEBO (SUPRA) also ALHAJI LASISI OTAPO & OR VS ZACHEUS FALEYE & (1995).
This court was urged to hold that judgment in suit No. KWS/240/1997 and subsequently Appeal No. CA/IL/38/2002 as per exhibits A and D respectively do not create issue estoppel.
APPELLANTS ISSUE NO. 3
Whether the Appellants suit which culminated in to this appeal constitutes an abuse of the court process against Case No. KWS/240/1997 and Appeal No. CA/IL/38/2002 and suit No. CVF/45/2006 relied upon by the trial court.
Appellant counsel submitted that the decision of the learned trial judge in striking out the appellant’s suit was argued by the appellant counsel, as not been supported by any legal authority. He then urged this court to note the following questions which will aid a proper determination of this issue, to wit:
1. Who are the parties -in Suit No. KWS/240/97 which culminated into Appeal No. CA/IL/38/02.
2. Who are the parties in suit No. CVF/45/06 before the Upper Area Court?
Counsel stated that a cursory look into the above questions will show that in suit No. KWS/240/97 the parties are:
1. ALHAJI TIAMIYU ELEBURUIKE PLAINTIFF
2. MR. PETER OYEWOLE RESPONDENT
In Appeal No. CA/IL/38/02, the parties are:
1. ALHAJI TIAMIYU ELEBURUIKE APPELLANT
2. MR. PETER OYEWOLE RESPONDENT
The parties before the Upper Area Court Ilorin in suit No. CVF/45/06 are:
1. RAHIM AKANO ALHAJI TAWA PLAINTIFF
2. ALHAJI TIAMIYU ELEBURUIKE DEFENDANT
The Appellant’s counsel submitted that apart from suit No. CVF/45/2006, where the respondent sued the appellant as a defendant, there is no meeting point between them in the other two proceedings relied upon by the court. And the appellant argued that his processes are not abuse of court process. Counsel then cited the case of PAVEX INT. CO. LTD. VS. I.B.W.A. (1994) 5 NWLR (PT 346) 645 @ 699 per Uwaifo JCA, where the concept of abuse of court process was defined as
“… ..when a party improperly uses judicial process to the harassment, irritation and annoyance of his opponent and to interfere with the administration of justice…”
And also OKAFOR VS ANAMBRA STATE (1991) 6 NWLR (PT 200) 659 @ 618, SARAKI VS KOTOYE (1992) 9 NWLR (PT 264) 159 @ 188-189.
Appellant further argued that the Appellant herein had never instituted any previous suit against the respondent on the same subject matter, the subject matter of this appeal. And that it is strange, to however, declare the Appellant’s suit an abuse of the process of the court. He cited the case of NWOBOSHI VS. STATE (1998) 10 NWLR (PT.568) 131 @ 165 to buttress his position.
The Appellant’s counsel submits with greatest respect, that
1. The relief before the High court of Justice which culminated into the appeal is based on declaration of title to land which is anchored on a Certificate of Occupancy No. KWS/0729 while the relief sought by the respondent of the Upper Area Court could not have been predicted on a Certificate of Occupancy as the Upper Area Court has no jurisdiction over a land the subject matter of certificate of occupancy.
2. Secondly, the commencement of a similar proceeding in different court per se may not constitute an abuse of court process.
He cited the case of NGIGE VS ACKUKWU (2004) 8 NWLR (PT. 875) @ 362. to buttress his point.
The Appellant’s counsel finally urged the court to allow this, appeal, set aside the decision of the learned trial judge as contained in the ruling of His Lordship delivered on 3rd July, 2009 and remit this case back to another High Court Judge of Kwara State to be heard and determined on the merit.
RESPONDENT’S AND CROSS-APPELLANT’S BRIEF OF ARGUMENT
The Respondent commenced his argument by raising a preliminary objection. The preliminary objection was brought pursuant to Order 10 Rule 1 of the Court of Appeal Rules 2007 and the objection was based on, inter alia.
OBJECTION
Ground one and two of the original Notice of Appeal filed by the Appellant on 3/8/09 continued on pages 211 to 216 of the record are incompetent and is therefore null and void.
While the grounds of objection was that-
“The particulars of errors to grounds 1 and 2 of the Notice of Appeal filed by the Appellant are argumentative.
On arguing the preliminary objection, the Respondent cited the case of ADE COKER VS. UNITED BANK FOR AFRICA PLC. (1987) 2 SCNJ 130 to contend that grounds 1 and 2 of the grounds of appeal are argumentative and as such liable to be struck out for being an incompetent ground of appeal. He further contended, that it follows that where the grounds of appeal are struck out for being incompetent, all issues formulated there from are also incompetent and should be struck out, he relied on the case of OBA FELIX ABIDOYE & 4ORS. VS. OBA JACOB ALAWODE & 4 ORS. (2001) 3 SC.
Respondent’s counsel argued that the argumentative nature of Grounds 1 and 2 of the Grounds of Appeal offends the provision of Order 6 Rule 2(3) of the Rules of this honourable court.
He further submitted that in construing a ground of Appeal, it must be construed together with its particulars to ascertain whether such ground is a ground of law or of fact or mixed law and fact. He relied on the cases of P.N. UDOH TRADE CO. LTD VS ABERE (2001) 5 SC (PT.11) 64, EHINLANWO VS. OKE (2008) 36 NSCQR, 1 at 31.
Respondent’s counsel then stated that the particulars to grounds one and two of the grounds of appeal as contained on pages 212 to 213 of the record of proceedings are argumentative and are better contained in the brief of argument than in the particulars of error, and as such, this court was urged to strike out the two grounds from the ground of Appeal filed by the Appellant. He further stated that appeals generally are creation of statute and failure to comply with statutory requirement is fatal to the case of the Appellant. He cited the case of MKREN YIZA & 1 OR V. IORAKPEN BEGHA (2005) 22 NSCQR 642 at 655-666 to make his point.
He finally concluded by stating that from the above, this honourable court is rubbed of jurisdiction to hear this appeal; this Court was urged to so hold and to strike out the two grounds from the grounds of appeal.
However, Respondent’s counsel stated that if this court does not find merit in the Respondent’s preliminary objection argued above, that the Respondent concedes to the issues for determination formulated by the Appellant with modifications as follows:-
ISSUES FOR DETERMINATION
1. Whether the trial court was right when he held that the Certificate of Occupancy constitutes issue estoppel (Grounds 3 & 4).
2. Whether the trial court was right when he held that the defendant is a privy in law to the defendant in the previous case as long as the issue relating to land covered by the invalid Certificate of Occupancy is concerned. (Ground 5).
3. Whether the trial court was right when he held that the case before him constitutes an abuse of court process and consequently struck out same for being an abuse of court process (Grounds 1, 2 & 6).
RESPONDENT’S ISSUE NO. 1
On arguing issue one, which is on the principle of estoppel, Respondent’s counsel stated that it is
trite law that to sustain the principle of issue estoppel, there are conditions which must be fulfilled by the party raising same as was stated in the case of JACOB OYEROGBA and ANOR VS EGBEWOLE OLOPA (1998) 12 SCNJ 115 at 129.
Where Oguwegbu JSC stated the conditions as follows:-
“Issue estoppel arises where an issue had earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in a subsequent proceeding between the same parties or their privies. The conditions for the application of the doctrine are that:
(i) The same question was decided in both proceedings.
(ii) The judicial decision said to create the estoppel was final, and
(iii) The parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies…”
Respondent’s counsel also relied on the cases of OLOWO OKUKUJE VS ODEJENIMA ADKWIDO (2001) 1 SC (PT. 11) 80 at 90 and MACKSON IKENI & 1 OR VS. CHIEF WILLIAMS AKUMA EFAMO and 2 OTHERS (2001) 5 SC (PT. 1) 160 at 169.
On the first condition, Respondent’s counsel stated that the Appellant’s claim at the trial court is that he is the lawful owner of a place of land situate directly opposite Ilorin International Airport, Ogbomosho Road, Ilorin consisting of 3562.85 square metres covered by a Certificate of Occupancy No. KW/0729, an injunction to restrain the Respondent and claim of damages for trespass of which the claim is in pari material with his claim in suit No. KWS/240/97 between him and one MR. PETER OYEWOLE. Respondent’s counsel concluded that from the above, Appellant is re-litigating on the same subject matter, and as such, this court should so hold.
On the condition, Respondent’s counsel submitted that the judgment in suit No. KWS/240/97 is a final judgment of a court of competent jurisdiction. That the Appellant did appeal against the decision of the Kwara State High Court to the Court of Appeal, in Appeal No. CA/IL/38/2002 and lost, of which the judgment of the Appeal court remains unchallenged. Counsel to the Respondent then submitted by the authorities of SARAKI VS. KOTOYE (1992) 11/12 SCNJ 26 at 46 and AKIN AKINYEMI VS. PROF. MOJISOLA SONAWO & 1 OR (2006) 27 NSCQR 302 at 31, that a judgment of court that is not challenged and set aside remains the law notwithstanding whether it is perceived to be a wrong judgment. He therefore held that the second condition is met, and urged this court to hold so.
On the third condition that the parties or their privies must be the same. Respondent’s counsel submitted that from the document filed at the trial court. In suit no. KWS/240/97 between Alhaji Tiamiyu Eleburuike and one Mr. Peter Oyewole; and in his pleadings and statement on oath of witnesses, established that he owns four (4) plots of land beside Mr. Peter Oyewole’s title, and the document presented before the court in the case between the Appellant and Mr. Peter Oyewole was a Certificate of Occupancy No. KW/0729 covering the area of land measuring 3562.85 square metres.
Respondent’s counsel stated that it is still this same document that the Appellant sought to use against the Respondent, a privy to the Defendant in the previous case; because, if the Appellant had won the case, it would have affected his title to the four (4) plots which is a boundary between the Appellant’s vendor’s 14 plots and two (2) plots belonging to the Defendant in the previous case.
counsel submitted that the doctrine of issue estoppel requreid that issues decided in a previous case or action can not be raised in a latter case between the same parties or their privies. He cited the cases of EZEKIEL ADEDAYO VS ALHAJI YAKUBU AND 7 OTHERS (1995) SCNJ 306 at 319, OKAFOR ADONE AND 2 OTHERS VS. OZO GABRIEL IKEGUDU & 5 OTHERS (2001) 7 SC (PT 111) 22 at 29, AND ESWUIHE IKOJU & 3 ORS VS REUBEN EKEUKWU & 3 ORS (1995) SCNJ 180 at 190 to make his point, that the respondent as a, result of his testimony is a privy to the defendant in the previous case.
Respondent’s counsel further stated that there can be no interest rooted in the Certificate of Occupancy sought to be used by the Appellant at the trial court, same having been annulled in the case between the Appellant and Mr. Peter Oyewole, he cited the case of ABILAWON AYISA VS OLAOYE AKANJI & 5 OTHERS (1995) 7 SCNJ 245 at 257 to adumbrate his position.
Respondent counsel then urged this court to hold that the trial court judge rightly held that the Certificate of Occupancy sought to be used at the trial by the Appellant is caught by the principle of issue estoppel and cannot be used in this case. He further cited the case of JACOB OYEROGBA AND ANOR VS. EGBEWOLE OLAOPA (1998) 115 at 123. And prayed this court to so hold.
RESPONDENT’S ISSUE NO.2
Respondent’s counsel commenced issue 2 by defining the word privy, according to the concise law Dictionary (Sixth Edition) on page 264 as
“One who is a party to or had a share or interest in something”
While Blacks Law Dictionary (Eight Edition) defined privy as:
“A person having a legal interest of privity on any action, matter, or property, a person who is in privity with another- privies in law such as – the term also appears in the con of litigating this sense, it includes someone who controls a law suit through not a party to its someone whose interests are represented by a party to the law suit”
Respondent counsel stated that the Respondent is a privy to the previous case because he has interest in the area of land covered by the invalid Certificate of Occupancy sought to be used by the Appellant in this case; counsel relied on the case of JACOB OYEROGBA & 1 OR V EGBEWOLE OLAOPA (1998) 12 SCNJ 115 at 122.
Respondent’s counsel then urged this court to hold that the respondent would have been affected by the result of proceedings in the previous case and as such, he is a privy in law to the subject matter in that case. This court was further urged to resolve this issue in favour of the Respondent and affirm the decision of the trial court.
RESPONDENT’S ISSUE NO. 3
Respondent’s counsel stated that it is the inherent duty of court to protect its processes from being abused by litigant, and he cited the case of JOSIAH CORNELIUS LIMITED & 3 ORS. VS. CHIEF CORNELIUS OKEKE EZENWA (1996) 4 ACNJ 124 at 140 to state that the case instituted by the Appellant is vexatious and with the intent to harass the Respondent who had earlier instituted both civil and criminal actions against the appellant before an Upper Area Court 1, Ilorin, that the Appellant ought to have waited for the determination of the case at the Upper Area Court, because the Upper Area Court case and the trial court case are the same. Counsel then urged this court to so hold that this amounts to an abuse of court process and is vexatious.
Respondents counsel further stated that the case at the trial court was also an abuse of court process against Suit No. KWS/240/97 between the Appellant and one Mr. Peter Oyewole, as it is in relation to the same subject matter. He relied on the case of ASHEY AGWASIM AND ANOR VS. DAVID OJICHE AND ANOR (2004) 18 NSCQR 359 at 36. And this court was urged to so hold.
Respondent’s counsel then submitted that having been shown to be an abuse of court process, it is the duty of court to dismiss any matter it is satisfied to be an abuse of court process. Counsel cited the case of CHIEF KARIMU AJAYI ARUBO VS. FATAI AYINLA AIYELERU & 6 ORS. (1993) 2 SCNJ 90 at 102 (lines 26 to 41) to buttress his point. Counsel then urged this court to so hold and dismiss the case of the appellant in its entirety.
Respondent’s counsel submitted that the issue of fair hearing, does not arise in this case at all this is due to the fact that the two parties were given opportunity to address the court on points of law raised by the Respondent at the trial court, and counsel adopted their addresses to the court.
Respondent’s counsel stated that by Order 26 Rules 2 and 3 and Order 34 Rules (1) and (2) of the Kwara State High Court (Civil Procedure) Rules 2005, parties were adequately given fair treatment and it prevented the unnecessary prolongation of an issue which could be dealt with without going to full trial.
Respondent’s counsel further submitted that the argument proffered by the appellant that the trial court ought to have waited till the time when parties testified and documents tendered and cross-examined on them before giving his ruling is nothing but a judicial acrobat.
He further argued that an issue was raised, via the pleadings of the parties, which was envisaged in Order 26 Rule 2 of the Kwara State High Court (Civil Procedure) rules 2005; this required the parties to address the court on it, where after the parties argued their case and the court ruled on it. That it would be wrong for the appellant to expect the court to waste its time by going into full trial when the issue raised substantially disposed of the whole case. Respondent’s counsel concluded that the court was liberal in striking out the case of the Appellant instead of dismissing it as prescribed for by Order 26 Rule 3 of the Rules of trial court.
Respondent’s counsel further argued that Order 34 Rules 1 and 2 allows the parties to raise questions of law arising in their case by way of special case for the opinion of the judge during the pre-trial period, and the judge is empowered to hear and determine such special case during the pre-trial conference period. That the above procedure was followed and the court ruled and struck out the case of the Appellant’s. Counsel stated that the principle of fair hearing demands that parties should be heard on matters before the court and not that every matter should go to full trial regardless of whether there is need for it or not.
Respondent’s counsel distinguished between the case of F.S.B. VS. IMANO (2000) 6 WRN cited by Appellant’s counsel from this case by stating that the issue in that case was the summary judgment given in that case while an application for extension of time within which to file statement of defence was pending; but in this case, an issue of law was raised, the parties argued the issue and the court ruled that there was no denial of hearing on merit. This court was urged to hold so and to resolve all the issues in favour of the respondent.
Respondent’s counsel summarized by urging this court to dismiss this appeal in its entirety and affirm the findings of the trial court. That this court should hold that the trial court was correct in ruling that the Respondent is a privy to the previous case as an interested party. That the trial court was correct in ruling that the case instituted by the appellant before the trial court constituted an abuse of court process and was liable to be dismissed. That the trial court ought to have dismissed the case of the appellant having found same to be abuse of court process.
Also, that this court should hold that the Appellant is caught by the principle of issue estoppel and that there was no denial of fair hearing in the case of the Appellant.
This court was urged to dismiss this appeal in its entirety.
REPLY TO THE PRELIMINARY OBJECTION
TO GROUNDS 1 AND 2 OF THE GROUNDS OF APPEAL
The Appellant’s counsel began his argument in his reply to the preliminary objection to the grounds 1 and 2 of the grounds of appeal by submitting that none of the two grounds of appeal complained of by the respondent as being argumentative, contains argument, rather, what the respondent did was to attack particular (i) and (ii) of ground 1 and particular III of ground two of the grounds of appeal.
Appellant’s counsel submitted that the particulars given in any ground of appeal are mere addendum to consolidate expatiate and support the grounds of appeal. That the Appellant’s couching of the particulars was done in other to relate the grounds of appeal with those particulars. Appellant’s counsel then cited the cases of HONIKA SAWMILLS LTD. VS. MARY OKOGIE HOFF (1994) 2 NWLR (Pt.326) 252 at 262 and in STRIKING CIVIL ENGINEERING LTD. VS. YAHAYA (2002) FWLR (Pt. 114) 552 at 561 to state the principle that a ground of appeal to be proper and valid, it must relate to its particular. Appellant counsel further submitted that the essence of the particulars of the ground of appeal is to enable the court to determine the value of error complained of by the Appellant, counsel further submitted that once a ground of appeal clearly states what the appellant is complaining about and there is compliance with rules of court, such ground cannot be described as bad and therefore incompetent, he cited the case of NATIONAL BANK OF NIGERIA LTD. VS. OPEOLA (1994) 1 NWLR (Pt. 319) 126.
Appellant’s counsel stated that assuming though not conceding, that particulars I and III in ground one of the Notice of Appeal and particulars III in ground two of the Notice of Appeal contravened the rules of appellate procedure relating to ensure fairness to the other side. Counsel emphasized that the application of such rules should not be reduced to the form rather than the substance.
Counsel further submitted that the prime purpose of the rules in both the Supreme Court and the court of appeal is that the notice of appeal should have set forth concisely the grounds, also, that the grounds are not vague or general but disclose reasonable grounds of appeal without argument; in other to give sufficient notice and information to the other side of the precise nature of the complaint. Therefore, any ground of appeal that satisfies that purpose, should not be struck out, notwithstanding non-compliance to a particular form. Counsel then submitted that the complaint in both grounds one and two of the grounds of appeal touch on fundamental right to fair hearing which is too important to be sacrificed on the altar of technicality, he cited the case of ADERONMU VS. OLOWU (2000) 25 SCNJ 180.
Appellants counsel cited the case of HAMBE VS. HUEZE (2001) FWLR (PT 42) AT 11-12 paragraph H-C to buttress his point and further urged, this court to discountenance the Respondent’s preliminary objection and hold that the two grounds of appeal complained of by the Respondent are valid and competent.
Appellant’s counsel concluded his argument by urging this court to dismiss the preliminary objection on the grounds that:-
(i) None of the two grounds of appeal complained of by the respondent is vague and argumentative.
(ii) The particulars of ground one and two attacked by the respondent are not argumentative but act as addendum to the two grounds of appeal.
(iii) The essence of particulars of grounds one and two of the notice of appeal is to give sufficient notice to the respondent so as to prepare his brief and to help the court in determining the nature of the Appellant’s complaint in the notice of appeal.
REPLY BRIEF
The appellant stated that the argument in paragraph 3.08 at page 12 of the Respondent brief, to the effect that since it is the same Certificate of Occupancy No. KW/0729 used in suit No. KWS/240/97 that the Appellant herein intended to use before the lower court, then the Respondent herein automatically became a privy to the Defendants in that suit. Appellant counsel submitted that this argument is strange and unthinkable,
Counsel further stated that the authority of EZEKIEL ADEBAYO VS ALHAJI YAKUBU BABALOLA & 7 others cited by the Respondent favours the position of the Appellant; in that, it was decided that once an issue has been raised and distinctly determined between the parties, then as a general rule, neither party can be allowed to fight that issue all over again.
Appellant’s counsel further stated that the issue of validity or otherwise of the Certificate of No. KW/0729 is purely between the Appellant and the said Mr. Peter Oyewole, while the Respondent was a mere witness and not a party Appellant’s counsel then submitted that such issue has not been determined between the present Appellant and the Respondent. He urged the court to discountenance the respondent’s argument, and allow this appeal.
Counsel further submitted that the Respondent is not a privy because the Respondent has no legal interest or relationship with the said Mr. Peter Oyewole in the earlier proceeding in suit No. KWS/240/97 and he cited the case of NURENI OLALEKAN MAYA VS. MOSES OWOLABI OSHUN TOKUN (2001) FWLR (PT 81) 1777 AT 1978-1999.
The Appellant’s counsel submitted on the issue of abuse of court process that in Suit No: KWS/240/97 the Plaintiff was Alhaji Tiamiyu Eleburuike while the Defendant was Mr. Peter Oyewole. The present Respondent was never a party nor a privy to the said suit as erroneously submitted by the Respondent in his brief of argument, and as such the appellant cannot be said to be guilty of re-litigating in this suit.
The Appellant counsel then submitted that the Respondent made a copious submission that the Appellant has not challenged the decision of the Court of Appeal, in Appeal No. CA/IL/38/2002 thus the judgment binds the parties. The appellant submitted that the decision of the court of appeal can ensure for the good and benefit of the Respondent.
Counsel concluded by urging this court to allow this appeal and set aside the decision of the learned trial judge and remits this case back to another High Court of Justice, Kwara State to be tried on the merit.
CROSS-APPELLANT’S BRIEF OF ARGUMENT
ISSUES FOR DETERMINATION
1. Whether the learned trial judge was right in striking out the case of the Appellant/Cross-Respondent instead of dismissing it, having found same to be an abuse of court process. (The sole ground of the cross-appeal).
ISSUE 1
Cross-Appellant’s counsel stated that issue 1 is premised on the fact that the argument before the trial court established that the case of the cross- Respondent constituted an abuse of court process, same having been instituted a:; a counter-action against the cases instituted against the Cross-Respondent at the Upper Area court, No. 1, Ilorin in suit No. CVF/45/06 and case No. CRF/100/106 and that of suit No. kWS/240/197 with its appeal CA/IL/28/2008 in respect of previous case between the Appellant and one Mr. Peter Oyewole.
Cross-Appellant’s counsel stated that a court is duty bound to prevent abuse of its process and cited the case of ARUBO VS AIYELERU & 5 ORS (1993) 2 SCNJ at 104.
Cross-Appellants counsel further stated that the trial judge disobeyed the above cited authority which was cited before the learned trial judge and the provision of Order 26 Rules 3 and 4 (particularly Rule 3) of Kwara State High Court (Civil Procedure) Rules 2005.
Cross-Appellant’s counsel argued that although the provision of Order 26 Rule 3 states that “the judge may thereupon dismiss the action…” in the circumstance if this case, the word “may” should read ‘shall’ because making a different order, other than dismissal would afford the claimant at the trial court an opportunity to abuse the process of court. This court was urged to hold that the trial judge was wrong in striking out the case of the Cross-Respondent having found same to be an abuse of court process. He cited the case of ELABANJO VS. DAWODU (2007) 27 NSCQR 318 at 372 where the Supreme Court recommends a dismissal in a proceeding of this nature.
Cross Appellant further urged this court to hold that the order of striking out of the Cross-Respondent’s case is improper having regard to the pronouncement of the supreme court in the case of ARUBO V AIYELERU & ORS (SUPRA).
Cross Appellant’s counsel concluded by stating that since there must be an end to litigation, and having presented the short coming of the learned trial court in not making the proper order, this court was urged to make the proper order, which is that of dismissal.
Cross Appellant’s summarized by the stating that, the trial court failed to realize the power conferred on him to prevent abuse of court process. Counsel further stated that the trial court failed to give proper order in respect of the case before him having found same to be an abuse of court process and also been caught by the principle of issue estoppel. Cross-Respondent finally summarized by stating that there must be an end to litigation and urged this court to dismiss the Appellant’s case in its entirety and to allow this cross-appeal.
CROSS-RESPONDENT BRIEF OF ARGUMENT
ISSUE FOR DETERMINATION
The cross-respondent basically adopted the same issue that the cross-appellant formulated, although the issue was adopted by assuming and not conceding that the trial court was right.
The cross-Respondent submitted that the exercise of discretion of the trial court, was made pursuant to the provision of Order 26 Rule 2 and 3 of the Kwara State High Court (Civil Procedure) Rules 2005, and the trial judge acted on the discretionary power granted by the court rules by deciding to strike out the suit, rather than to dismiss it.
Cross-Respondent counsel further submitted that the rule of court is like a statute and where the word used in a statute is plain and unambiguous; there is no need to give them any other meaning other than what their ordinary natural and grammatical construction would permit. He cited the case of NATIONAL BANK OF NIGERIA LTD VS WADE & CO. (NIG) LTD (1996) 8 NWLR (PT 465) 150.
Counsel further submitted that the use of the word ‘May’ under the provision of Order 26 Rule 3 makes the duty of the judge discretionary as to whether to dismiss or strike out the action. Furthermore, the phrase
“Or make such other order therein as may be just” has clearly removed doubt as to the discretional power of the learned trial judge under the provision of the Rule. He cited the case of FCSC & ORS V. LAOYE (1989) 2 NWLR (PT 106) 652 AT 723 to state the position of the law that where there is obscurity or doubt as to any particular word, such doubt can be resolved by reference to associated words.
Counsel further argued that all rules of court are made for the aid of justice and as such, the interest of justice will have promontory position over any rules of which compliance to it would lead to outright injustice. He cited the cases of SHELL PETROLEUM DEVELOPMENT VS. NWAKWKA (2001) FWLR (PT 48) AND OLOBU VS AKEREJA (1988) 3 NWLR at 508. Cross-Respondent counsel urged this court to discountenance the submission of the Cross-Appellant.
Cross-Respondent counsel also stated that a court of law has discretion in choosing between a wide or narrow meaning in the interpretation of a statute. He cited the case of EGBE VS ALHAJI & ORS (1990) 1 NWLR (PT. 128) 546 at 600.
Finally, cross-Respondent’s counsel submitted that an Appellate court would not interfere with the exercise of the trial court’s discretion unless it is shown that same was not exercised judicially and judiciously. Counsel then cited the case of SALU VS. AGEIBON (1994) 6 NWLR (Pt. 348) 23 and urged this court to hold that the trial court exercised its discretionary power in striking out the case rather than dismissing same.
Cross-Respondent’s counsel urged this court to dismiss the cross-appeal and remit the case to another High Court Judge of Kwara State for a proper trial on the merit.
RESOLUTION OF ISSUES
On a succinct appraisal of the issues raised by both Appellant counsel and the Respondent counsel, it is my view that the issues raised by the Appellant also reflects the same issues as raised by the Respondent. Thus, Appellant’s issues will be used in resolving the issues.
However, before resolving the issues as raised by the Appellant, I will first resolve the preliminary objection brought by the Respondent.
The sole objection brought by the Respondent is inter alia:-
“Ground one and two of the original notice of appeal filed by the appellant on 3/8/09 contained on pages 211-216 of the record are incompetent and is therefore null and void.”
While the grounds of the objection was that:-
“The particulars of errors to grounds 1 and 2 of the notice of appeal filed by the appellant are argumentative.”
An appreciation of the objection of the Respondent would require the reproduction of the relevant provision of the Court of Appeal Rules.
Order 6 Rules 2(3)
“The Notice of Appeal shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the Appeal without any argument or narrative and shall be numbered consecutively.”
I agreed with the submission of the Respondent’s counsel that appeals are generally the creation of statute and failure to comply with statutory requirement is fatal to the case of the Appellants as was stated in the case of MKREN YIZA & 1 OR VS. IORAKPEN BEGHA (2005) 22 NBCOR 642 AT 655-666.
However, a thorough understanding and appreciation of order 6 rule 2(3) of the Court of Appeal rules, is clear, to a discerning mind that upon a liberal interpretation of the provision of Order 6 rule 2(3) of the Court of Appeal rules, the emphasis is on the “grounds upon which the Appellant intends to rely at the hearing” and not on the particulars.
The particulars are basically the reasons given by the appellant for the grounds of appeal. The particulars are aids to a better appreciation of the grounds of appeal and as such cannot be deemed to be stricto senso, the actual ground for the appeal.
I am in tandem, with the view of the Appellant that for a ground of appeal to be proper and valid, it must relate to its particular, as was stated in HONIKA SAWMILLS LTD. VS. MARY OKOGIE HOFF (1994) 2 NWLR (Pt.326) 252 at 261. The above principle of law was further stated by SALAMI JCA as he then was, in the case of STRIPPING CIVIL ENGINEERING LTD. VS. YAHAYA (2002) FWLR (Pt. 114) 552 at 561, where it was held that:-
“A ground of appeal to be proper and valid must relate to its particular. The penalty for the particulars not flowing from or relating to ground of appeal is striking out of the unrelated particulars.”
Furthermore, in S.C.O.A. (NIG.) PLC. VS. MOHAMMED (2004) 4 NWLR (PT.862) 20, it was held that
“Where the substantive grounds of appeal filed by an appellant contain enough information about the complaint of the appellant, the ground would not be described as vague or struck out simply because the particulars in support of the grounds of appeal are inelegantly drafted.”
The poser is, did the ground of appeal as filed by the appellant contain enough information about the complaint of the appellant? My answer to the above is in the affirmative.
Finally, by the principle of stare decisis, I am bound by the dictum of Oguntade JSC (as he then was) in the case of HAMBE VS. HUEZE (2001) FWLR (PT.42) 7 at 11-12 paragraph H-C, inter alia.
“The rules of our appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of technicality whereby the court will look at the form rather than the substance. The prime purpose of the rules of appellate procedure, both in this court and in the court of appeal, that the appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon on the appeal and that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal is to give sufficient notice and information to the
other side of the precise nature of the complaint of the Appellant…
On this score, I hold that the ground of appeal of the appellant has disclosed a reasonable ground of appeal, and is valid and competent.
The preliminary objection of the Respondent is hereby wholly dismissed.
RESOLUTION OF MAIN APPEAL
As earlier stated, the issues as formulated by the appellant will be used in the resolution of this appeal.
ISSUE NO. 1
Whether the learned trial judge was right in striking out the Claimant/Appellants suit at preliminary stage of pre-trial conference without allowing the claimant/appellant to state his case.
To my mind, the resolution of issue No. 1 solely rests on the answer to the question that whether on the construction of the provisions of Order 26 Rule 2 and 34 rule 1 of the Kwara State High Court (Civil Procedure) Rules 2005, the trial court had the authority to strike out the Appellant’s suit at the preliminary stage of pre-trial conference without allowing the appellant to state his case. This would require the reproduction of the above mentioned provisions.
Order 26 rule 2
“Any party shall be entitled to raise by his pleading any point of law, and any points so raised shall be disposed of by the judge before or at the trial.
Order 34 Rule 1
“At the pre-trial conference parties may concur in stating the questions of law arising in their case in the form of a special case for the opinion of the judge. Every such special case shall be divided into paragraphs numbered consecutively and shall concisely state such facts and documents as may be necessary to enable the court to decide the questions. Upon the argument of such case the judge and the parties may refer to all the contents of such documents and the judge may draw from the facts and documents stated in any special case any inference, whether of fact or law, which might have been drawn from them if proved at a trial.
I am in agreement with the Appellant, that in interpreting and applying the provision of the statute and the rules of court, such rules cannot be read disharmoniously. The statute or rules must be read not only as a whole but in such a way that it will not defeat the purpose and objective of the makers, as stated by Karibi Whyte JSC (as he then was) in MATARI VS. DANGALADIMA (1993) (PT 281) PG. 266 at 281.
I also agree that the Rules of court are made to do justice to the parties as was stated by Oputa JSC in NNEJI & ORS. VS. CHIEF NWANKWO & ORS. (1988) 3 NWLR (PT.81) 184 at 20167.
However, when a party is claiming injustice based on a reliance on the rules, the power now is, is justice a sole prerogative of a party or should it be justice as should be done in a case?
Another boggling question in this case is, the rules of court and statutes to what ends do they serve? Is it tailored towards justice or is it just a bunch of rules as formulated by the courts for the pleasure of one party and to the injustice of the other party?
It is a well established principle that the object of the court is to decide the right of parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. I know of no kind of error or mistake which if not fraudulent or intended to over reach, the court ought not to correct if it can be done without injustice to the other party. See CHIGBU V. TONIMAS (NIG.) LTD. (1999) 3 NWLR (PT.593) 115 PG. 140.
It is my considered view that rules of court are not just made to ensure that the affairs of the court are carried out in an orderly fashion but are also made to serve the ends of justice. Rules of court should be interpreted in such a way as to ensure justice to the parties.
However, as it relates to this case, it is clear that the trial judge cannot be faulted for adhering with the direct provisions of order 26 rule 2 which enabled the Respondent to raise by his pleading any point of law, which must be disposed by the trial judge before or at the trial.
The sequel to order 26 rule 2 is order 26 rule 3 which states that-
“if in the opinion of the judge the decision on the point of law substantially disposes of the whole action, or of any cause of action, ground of defence, set-off, counter-clam, or reply therein, the judge may thereupon dismiss the action or make sure other order therein as may be just”
From the above, it is self explanatory. The plea/claim of the Appellant that the case being determined without being heard on the merit has breached their fundamental rights to fair hearing contrary to section 36 of the constitution of the Federal Republic of Nigeria, 1999 does not come into play in this case because as stated by the trial judge on page 200 of the record of proceedings.
“The proper stage at which a defendant may raise a preliminary objection to the claimant suit should either be at the beginning or early-stage of the proceeding.
CARLEN (NIG) LTD. VS. UNIVERSITY OF JOS (1994) 1 NWLR (PT 323) 631; CHIEF YAKUBU SANI VS OKENE LOCAL GOVERNMENT TRADITIONAL COUNCIL AND 1 OTHER (2008) 56 SC (PT 11) PG 131…
The defendant/applicant has not gone outside what was filed and served on the claimant/respondent; to which the claimant/respondent replied thereto. There has been no breach of any rule of natural justice as the situation here is res i loquitor. The documents speak for themselves.”
Based on the above and a succinct appraisal of the record of proceedings, I therefore hold that the authority of ADIGUN VS A.G. OYO STATE (1987) 1 NWLR (PT53) 678 is inapplicable in this case, as there is and has been no breach of natural justice in this case.
I hold that the learned trial judge was right in striking out the claimant/appellant’s suit at the preliminary stage of pre-trial conference without allowing the appellant to state his case.
Issue number 1 is resolved against the appellant and in favour of the Respondent.
ISSUE NO. 2
Whether the said judgment in suit No KWS/240/1997 which was subsequently affirmed by the Court of Appeal in Appeal No. CA/IL/88/2008 constitutes an issue estoppel before the learned trial judge.
Issue no. 2 borders solely on the whether or not issue estoppel can be sustained in this case.
To get to the root of this issue would necessitate a proper understanding of what issue estoppel is: The dictum of Oguwegbu JSC (as he then was) in JACOB OYEROGBA AND ANOR VS EGBEWOLE OLOPA (1998) 12 SCNJ 115 AT 129, where he stated thus-
“Issue estoppel arises where an issue had earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in a subsequent proceeding between the same parties or their privies. The conditions for the application of the doctrine are that:
1. The same question was decided in both proceedings.
2. The judicial decision said to create the estoppel was final, and
3. The parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies…”
From the Appellant’s brief of argument, his contention is not with the first two conditions applicable to the doctrine of issue estoppel. It seems his bone of contention is solely focused on the 3rd condition; which is
“That the parties to that decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised.”
Therefore, this court will assume that there is an implied agreement on concurrence with the fulfilment of this case with the 1st two conditions, and that the resolution of the 3rd condition determines whether or not issue estoppel is applicable to this case or not.
This further narrows the issue down to whether from the definition of a privy; the parties in this case can be sued to be the same parties in line with the 3rd condition for issue estoppel.
The concise law dictionary (sixth edition) page 264 defined privy as
“One who is a party to or had a share or interest in something”.
While the blacks law dictionary (eight editions) defined a privy as-
“a person having a legal interest of privity in any action, matter, or property, a person who is in privity with another-privies in law such as-the term also appears to the content of litigating, in this sense, it includes someone who controls a law suit though not a party to it, someone whose interests are represented by a party to the law suit.”
In the case of IYAYI VS. EYIGEBE (1987) 7 SCNJ 148 AT 152, privy was held to include all those who are privy to the parties in blood or title or interest, and estoppel per rem judicatum operates for, or against, not only parties but also those privies.
From the record of proceedings, the respondent who is also called Alhaji Tawakalitu in suit no. KW/240/1997 and who testified) at that suit acknowledge that he has four plots of land between the land of the defendant sold to the claimant (Alhaji Eleburuike) by the vendor in the person of one Mr. Akinyemi.
The Respondent was also a witness in suit no. KWS/240/1994 and gave evidence to the effect that-
“I know the land in dispute between the plaintiff and the defendant. The defendant’s two plots of land are situate next to my own four plots while Mr. Akinyemi’s 14 plots are after my own land…Mr. Akinyemi also has a quarrel with me over my four plots of land. Mr. Akinyemi claimed that my land falls within his own land. It was the head of Magaji family that settled us by showing Mr. Akinyemi that his land is not anywhere near the defendant’s two plots (Mr. Peter Oyewole) or my own 4 plots. I’m aware that if the plaintiff succeeds in his claim against the defendant it will also affect my own land”.
In light of the above, it is my considered view that the evidence of the respondent in suit no. KW/240/1997, has clearly portrayed him as a privy, because he did and still has an interest in the 3562.85 sq.m expanse of land which included the 2 plots of Mr. Peter Oyewole and the 4 plots of the respondent, for which the appellant claims as per Certificate, of Occupancy No. KW/10729.
I therefore hold that the respondent is a privy and that all the conditions applicable to issue estoppel apply to this case.
Therefore, the trial judge was right to hold that suit No. KWS/240/1997, also affirmed by the Court of Appeal in Appeal no.1 CA/IL/38/2002 constitutes an issue estoppel, and I so hold.
This second issue is resolved against the appellant and in favour of the respondent.
ISSUE NO. 3
Whether the Appellants suit before the lower court which culminated into this appeal constitutes an abuse of the court processes against case no. KW/240/97 and Appeal No. CA/IL/38/2002 and suit No. CVF/45/2006 relied upon by the trial court.
It is not in doubt that the appellant instituted suit No. KWS/240/97, which culminated into an appeal in appeal no. CA/14/38/02, against one Mr. Peter Oyewole, which this honourable court has held that the respondent is a privy.
It is also not in dispute that the respondent had instituted both civil and criminal actions against the appellant before an Upper Area court 1, Ilorin. Also, that the appellant instituted this case against the respondent while the civil and criminal actions against the appellant where pending at the Area Court.
The poser now is what is an abuse of court process?
The Supreme Court jurist, Ogundare JSC (as he then was) stated in CENTRAL BANK OF NIGERIA VS. AHMED AND ORS (2001) 7 SCM 85 that, an abuse of court process.
“Simply means that the process of court has not been used bona fide and properly”
While Oputa JSC in AMAEFULA V THE STATE (1988) defines it as-
“Abuse of process of the court is a term generally applied to a proceeding, which is wanting in bona fide and is frivolous, vexatious or oppressive. Abuse of process can also mean improper use of legal process.”
In the recent case of ASHEY AGWASIM AND ANOR VS. DAVID OJICHIE AND ANOR (2004) 18 NSCQR 359 AT 36, the Supreme Court held thus:
“It is trite law that the abuse of judicial process is the improper use of the judicial process by a party in litigation. It may occur in various ways, such as instituting a multiplicity of action on the same subject matter against the same opponent on the same issue or in multiplicity of action on the same matter between the same parties, it also occurs by same parties, simultaneously in different courts even though on different grounds, where two similar processes are use in respect of the exercise of the same right.
I agree in toto with the submission of the Appellant the commencement of a similar proceeding in different courts per se may not constitute an abuse of court process. It will depend on the facts and circumstance of each case.
However, I do not agree with the fact that the appellant instituted this case before the High court has nothing to do with the Respondent’s suit before the Upper Area court* because the High court is a superior court of record whose decision is binding on the Upper Area Court.
I also do not subscribe to the reasoning that the High Court suit and the Area court case cannot constitute an abuse of court process because the Upper Area Court does not have jurisdiction over the land the subject matter of the Certificate of Occupancy because, as stated in the ASHEY AGWASIM AND ANOR VS DAVID OJICHIE AND ANOR (2004) 18 NSCQR 359 AT 36.
Abuse of court process occurs-
“Where two similar processes are use in respect of the exercise of the same right’
Thus, the processes need not be the same, however they must be in respect of the exercise of the same right.
It is curious though, that although appellant is alleging that the suit before the Area Court is not the same with the High Court suit, he has however tacitly refused to mention what the suit at the Area Court is for. This is contrary to the position of the respondent who is stating that there is an abuse of court process.
It is sad that abuse of court process has become so rampant that instead of dissatisfied parties going on appeal in respect of a judgment they would rather proceed to file new suits in other jurisdictions. This practice must be discouraged. Thus in Odonigi v. Oyeleke (2001) 6 NWLR (Pt.708) or (2001) 2 S.C 194 @ 0age 15-16. Kalgo JSC observed as follows ” The principles or doctrine of res judicata also applies where a final decision is pronounced by a court or judicial tribunal having competent jurisdiction over the cause or matter and over the parties thereto and which disposes of all the matters decided therein so that the parties or their privies cannot thereafter raise any of the matters for re-litigation between them”.
Consequently as was held by the apex court in the above case; and in applying the same principle to the instant appeal, the certificate of occupancy referred to in this appeal could constitute an issue estopel and the fact that the lower court held inter-alia that the defendant therein referred to as the respondent is privy in law to the defendant referred to in the previous crises relating to the land covered by the certificate of occupancy herein. See also the cases of Iyaji v. Eyigebe (1987) NWLR (Pt. 61) 523, Odhevwedje v. Umurhurhuvwe (1987) NWLR (Pt. 52) 633, Osunrinde v. Ajamogun (1992) NWLR (Pt. 246) 156, Ukaegbu v. Ugoji (1991) 6 NWLR (Pt.196) 127.
Further the conditions necessary for a successful plea of estopel by the respondent has been met before the lower court hence the findings of the trial court in his favour. The apex court held “In Ihenacho Nwaneri & Ors. v. Nnadikwe Oriuwa & Ors (1959) 4 F.S.C. 132 that before the doctrine of estoppel per rem judicatam can operate, it must be shown that the parties, issues and subject-matter were the same in the previous case as those in the action in which the plea of res judicata is raised. This Court in Idowu Alase & Ors. v. Sunya Olori Ilu & Ors. (1965) N.M.LR. 66 repeated what the Federal Supreme Court said in Ihenacho Nwaneri’s case supra viz same parties, same issue, same subject-matter.”
After a considered and thorough evaluation of this issue, the brief of arguments and the record of proceeding, I hold that the trial court was right in holding that the appellant’s suit before the lower court culminated into this appeal constitutes an abuse of the court processes against case no KW/240/97 and Appeal No. CA/IL/38/02 and Suit No. CVF/45/06.
This issue No. 3 is thereby resolved against the appellant and to favour of the respondent.
RESOLUTION OF CROSS APPEAL
The Respondent cross appealed against the decision of the trial court. The Cross-Appellant’s Brief of Argument had a sole issue for determination. This hereunder reproduced:
“Whether the learned trial judge was right in striking out the case of the Appellant/Cross-Respondent instead of dismissing it, having found same to be an abuse of court process.”
In the resolution of this issue there is need for a reproduction of order 26 rule 3 of the Kwara State High Court (Civil Procedure) Rules 2005 which provides to with:-
“If in the opinion of the judge the decision on the point of law substantially disposes of the whole action. The judge may thereupon dismiss the action or make such other order therein as may be just.”
Am in agreement with the submission of the Cross-Respondent that the rule of court is like a statute and where the word used in a statute is plain and unambiguous then their ordinary natural and grammatical construction would be used.
I also agree that the use of the word “May” under the provision of order 26 rules 3 makes the duty of the learned trial judge discretionary as to whether to dismiss or strike out the action. Furthermore, I do agree that the phrase
“Or make such other order therein as may be just”
Adds more credence to the discretionary power of the learned trial judge under the provision of the rule.
However, where the trial court, had found that there has been an abuse of court process, as was found in this case of which abuse is not only as to multiplicity of cases, but as to an abuse of the process of the court, where there is a judgment in existence from a court of competent jurisdiction, such an abuse cannot be stemmed by simply striking out the case where the trial court had found that there had been an abuse of court process and held thus:-
“I hold that the present case before me constitute an abuse of court process against Case No. KWS/240/97 and Appeal No. CA/IL/38/02 and even against suit No. CVF/45/06…”
The trial court judge ought to have taken a permanent step in preventing the abuse of the court process, this is because, by holding that there is an abuse of court process against a valid and subsisting judgment of a court of competent jurisdiction (KWS/240/97 and Appeal No. CA/IL/38/02) the only permanent way of protecting the court against a subsequent abuse in the future is by dismissing the suit.
The dismissal of a suit in law puts an end to such suit. While a case that is struck out, is a temporal end to the suit due to some technicality or procedural defect.
The Supreme Court, per Nnaemeka-Agu in the case of ARUBO VS. AIYELERU & 5 Ors held on the Court’s duty to prevent the abuse of its processes stated that:-
“Inherent jurisdiction or power is a necessary adjunct of the powers conferred by the rules and is involved by a court of law to ensure that the machinery of justice is duly applied and properly lubricated and not abused. One most important head of such inherent powers is abuse of process, which simply means that the process of the court must be used bonafide and properly and must not be abused. Once a court is satisfied that any proceeding before it is an abuse of process it has the power and duty to dismiss it.”
Thus, not only was the trial court statutory mandated (albeit in a discretionary manner) but also, under the legal principle of stare decisis the trial court was required to dismiss this suit (such ARUBO V. AIYELERU (SUPRA) was brought to the attention of the trial court).
Sadly, the trial court became impasse when faced with an opportunity to nip in the bud future abuse of court process by the Cross-Respondent.
Therefore, I hold that the proper order that ought to be made by the trial court after finding that there was an abuse of court process is to dismiss the action and not to strike it out.
The Cross Appeal is meritorious and succeeds. This cross appeal is allowed.
The result is that this appeal is unmeritorious and it is accordingly dismissed.
The decision of Saleeman (J) contained in the ruling delivered is hereby upheld, except for its decision relating to the cross appeal, which is hereby upturned.
In conclusion, I find this appeal unmeritorious and it is accordingly dismissed.
There is no order as to costs.
IGNATIUS IGWE AGUBE J.C.A: I was opportuned to read the draft of the lead judgment just delivered by my Lord Denton West J.C.A. and I agree totally with the well articulated reasoning and conclusion reached in both the preliminary objection and the substantive appeal.
It is now trite and the authorities abound in superfluity on the vexed issue of the nature of Grounds that will animate an appeal. My Lord has aptly stated the law on the authorities cited beginning from the Rules of Court as to what a valid Ground of appeal should look like and where for instance, a Ground of Appeal is argumentative and narrative in nature, such a Ground ought to be struck out for non compliance with the Rules.
Moreover, the particulars of the Ground should also flow from the Ground as my Lord has rightly held- on the authorities of Honika Saw Mills Ltd. v. Mary Okogie Hoff and Stirring Civil Engineering Ltd. v. Yahaya (2002) FWLR (Pt.114) 552 at 561 per Salami J.C.A (as he then was). See also Nwaigwe v. Okere (2008) 34 NSCQR 1325.
There is also considerable force in the holding of my Lord that the Ground of appeal pillaried by the Respondent contains sufficient information so as not to mislead him as to the case he was going to meet. In recent times there has been an upsurge of frivolous preliminary objections on Ground of Appeal and it is gratifying that our emeritus legal titan Oguntade, J.S.C, has brought succour to those litigants whose legal representatives may be guilty of inelegance in the drafting of their grounds of appeal and perhaps the particulars thereof.
In line with our current jurisprudential posture, this court should at all times jettison unnecessary adhered to technical rules of procedure. Though they are meant to obeyed, they should be interpreted such that willing litigants do not suffer the loss of their constitutional rights to appeal on the altar of technical and mechanical justice. I agree therefore with my Lord that the Ground of Appeal which has been so questioned by the Respondent is reasonable, succinct and comprehensive enough to apprise the Respondent with the case he was to meet and tackle in this Court. I also endorse the dismissal of the preliminary objection intoto.
On the other issue, Order 26 Rule 2 and 3 of the Kwara State High Court (Civil Procedure) Rules, 2005, incorporates the abolition of demurrer proceedings and where a party raises by his pleadings any point of law, the court is empowered to dispose of that point before proceedings to trial. If the judge after considering the point of law decides that such a point substantially disposes of the case or any defence, set-off, counter-claim and/or reply therein, the trial judge may dismissed the action or make any order that may be just in the circumstances of the case. The provisions of Order 34 Rule 1 are merely complimentary and should not be misunderstood. Where, as in this case the Respondent raised the defence of estoppel per rem judicatem and Court discovered in the cause of pre-trial that the parties, subject matter or issue sought to be litigated were the same and the issue in question had been decided by Court of competent jurisdiction, then proceedings could be terminated in line with provisions of the Rules.
I agree therefore that the Court was right to have struck out the claim of Plaintiff/Appellant if the plea of estoppel was successful as , by the same token, if the Appellant filed several suits in different Co arts, definitely, these constituted a flagrant abuse of court process and the court below had the bounding duty to wield the big stick and punish him with the striking out of his case. See Amaefule & Anor.v. The State (1988) 2 NWLR 156 at 117; Saraki v. Kotove (1991) 9 NWLR (pt 264) 156 S.C and Ntuks v. N.P.A. (2007) All FWLR (pt. 387) 809 S.C.
For these and the fuller analyses of the issues so formulated in the lead judgment of my able and learned brother, I also dismiss the Appellant’s Appeal and affirm the decision of the Lower Court. I abide by all other consequential orders as made by my Lord.
CHIMA CENTUS NWEZE, J.C.A: I agree.
Appearances
Tunde Falola EsqFor Appellant
AND
Yusuf F. ZubairFor Respondent
