BAKO & ANOR v. DANTATA INVESTMENT & SECURITIES CO
(2022)LCN/16036(CA)
In the Court of Appeal
(KANO JUDICIAL DIVISION)
On Monday, July 04, 2022
CA/K/478/2019
Before Our Lordships:
Ita George Mbaba Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
1. ARC. ABUBAKAR AUDU BAKO 2. ALHAJI KABIRU AUDU BAKO (For Themselves and Heirs and Members of The Family of Late Alhaji Audu Bako) APPELANT(S)
And
DANTATA INVESTMENT AND SECURITIES COMPANY RESPONDENT(S)
RATIO
PRINCIPLE OF LAW RELATING TO PRIVY IN TITLE
The law is trite, that every party in or privy to a suit is bound by the decision of the Court reached at the determination of their suit. See the case of Agbogunleri Vs Depo & Ors (2008) LPELR 243 (SC), where it was held:
“Therefore, judgment against a testator operates downstream as the first suit ID/199/81, to operate against any fresh claim in respect of the same land or property by the same parties. This has been the position of the law for quite sometime. Thus, the general principle of the law relating to privy in title is that in transactions relating to land, any person who derives title from or takes an assignment from, or is let into possession by, or otherwise claims or “comes in” under the actual representor, is bound by the same representation, and consequent estoppel, as that which binds such actual representator. See Tylor v. Needham (1810) 2 Taunt. 279; Spenser, Bower and Turner in their book: Estoppel by Representation, Third Edition, Butterworth, London, 1977, pages 123 – 124.” Per MUHAMMAD, JSC. -PER ITA GEORGE MBABA, J.C.A.
MEANING OF THE WORD “PRIVY”
On the meaning of the word “privy”, the authorities are replete, as in RE: Agboyi-Ketu Local Development Area & Anor (2017) LPELR-41955 CA, where this Court, per Georgewill, JCA, held:
“In relation to the facts and circumstances of this application, the word “Privy” has been defined so succinctly as “A person who is in privity with another. One who is a partaker or has any part or interest in any action or matter or thing. In connection with the doctrine of Res Judicata, one who after the commencement of the action has acquired interest in the subject matter affected by the judgment through or under one of the parties as by inheritances succession, purchase or assignment.” See Blacks Law Dictionary 6th Edition at p. 1200. See also Daniel v. Kadiri (Supra), Chief Oyelakin Balogun v. Pastor Moses Afolayan (2005) All FWLR (Pt. 85) 331 at p. 334, Kola Adedeji & Anor v. Otunba Segun Adebayo & Ors (2012) LPELR 7990 (CA).”
See also Agbogunleri Vs Depo & Ors (supra), where it was held:
“But, who is a privy? In Arabio v. Kanga (1932) 1 WACA 253 at p. 254, a privy was defined as that person whose title is derived from and who claims through a party. It may also imply identity of successive interest or persons having interest in property.” Per MUHAMMAD, JSC.
In the case of R.T. NA & Ors Vs H.W.U.N. & Ors (2008) LPELR- 3196 (SC) (cited by Appellant):
“…Under our law, a person whose interest is involved or is in issue in an action and who knowingly chose to stand by and let other fight his battle for him, is equally bound by the result in the same way as if he were a party.” -PER ITA GEORGE MBABA, J.C.A.
REQUIREMENTS FOR THE PRINCIPLE OF RES JUDICATA
To satisfy the requirement for the principle of res judicata, the law requires that the parties, subject matter and the cause of action in the two suits (previous one and current suit) should be the same, and that the previous suit was, finally, determined. See Sani Vs The President FRN & Anor (2020) LPELR – 50990 (SC), where my Lord Nweze JSC held:
“The doctrine is grounded on public policy which stipulates that there must be an end to litigation as captured in the Latin maxim ‘interest rei publicae ut sit finis litium.’ The plea of res judicata is only employed by a plaintiff as a sword as the legal effect to the effect that the Court before which it has been raised has no jurisdiction to entertain the matter. As indicated above, the counsel cited Aborisade v Abolarin (2000) 10 NWLR (pt 671) 41, 51-52 as an authority to confirm if the conditions of estoppel per rem judicatam exist before it can be applied. Such cases like Ogbolosingha and Anor v B.S.I.E.C and Ors (2015) Vol 245 LRCN 140, D.T.T ENT (NIG) Co. Ltd v Busari (2011) 8 NWLR (pt.1249) 387, Bwacha v Ikenye (2011) 3 NWLR (pt 1235) 610 confirm the proposition that the conditions listed below must exist before the doctrine of res Judicata can apply; -PER ITA GEORGE MBABA, J.C.A.
See also the recent decision of this Court in Al-Sultahir Co. Ltd Vs Unity Bank Plc (2022) LPELR-57836 CA:
“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.”
The rationale for the principles of res judicata has always been explained. See the case of Adiukwu Vs Enwereji (2016) LPELR-40504 CA, where we held:
“The principles of estoppels or plea of res-judicata is meant to stop a party from relitigating over a matter or issue that has enjoyed conclusive or effective adjudication and determination by a competent Court of law. -PER ITA GEORGE MBABA, J.C.A.
EFFECT OF ABUSE OF COURT PROCESSES
Where a suit is brought in abuse of the Court process, the correct order to make is to dismiss the suit. See the case of Ogbonmwan Vs Aghimien (2016) LPELR-40806 CA:
“Any case which is an abuse of process must go under the hammer in order to halt the drift by the abuse and it is settled law that where there is an abuse of process the proper order is the dismissal of the process that is the abuse: AFRICAN REINSURANCE CORPORATION vs. JDP CONSTRUCTION NIG. LTD (supra) and IGBEKE vs. OKADIGBO (2013) LPELR (20664) 1.” Per OGAKWU, JCA. -PER ITA GEORGE MBABA, J.C.A.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal, emanating from the ruling of the High Court of kano State in Suit No. K/586/2018, delivered on 17th July, 2019 by Hon. Justice A. T. Badamasi, whereof the learned trial Judge dismissed the preliminary objection raised by the Defendants (Appellants herein) to the trial of the suit.
At the trial Court, the plaintiff (now Respondent) had sought the following reliefs (as per the writ of summons, filed on 19/12/2018):
(1) Declaration of this Hon. Court that piece of land consisting of 0.3272 hectares at No. 14 situate at Ahmadu Bello Way, Kano covered by Certificate of Occupancy No. LKN/RES/82/392 dated 9th November, 1983, belongs to the plaintiff.
(2) Declaration of this Honourable Court, that the defendants or any person claiming from them have no any title or interest in or over the said piece of land situate at No. 14 Ahmadu Bello Way, Kano covered by Certificate of Occupancy No. LKN/RES/82/392, dated 9th November, 1983.
(3) An order of this Hon. Court granting writ of possession to all that property known as No. 14 Ahmadu Bello Way, Kano covered by Certificate of Occupancy No. LKN/RES/82/392 of 9/11/1983.
(4) An order of perpetual injunction restraining the defendants either by themselves, their agents, staff, servants, privies, assigns or any person by whatever name called from entering, remaining, trespassing and/or carrying out any construction and/or renovation on the property at No. 14 Ahmadu Bello Way, Kano, by Certificate of Occupancy No. LKN/RES/82/392 of 9/11/1983.
(5) Damages, cost and any other reliefs in the interest of justice. (See page 4 of the Records of Appeal).
Upon being served with the processes, including motion for injunction, the Defendants filed a preliminary objection on 19/1/2019, seeking the following reliefs:
(1) That the subject matter in dispute had already been adjudicated upon in Suit No. K/190/2014 between ARC. ABUBAKAR AUDU BAKO & 1 ANOR VS THE EXECUTIVE GOVERNOR OF KANO STATE & 3 ORS by the High Court of Justice, kano, presided over by the Hon. Justice P. A. Mahmud (now Justice of the Court of Appeal).
(2) That the property No. 14 Ahmadu Bello Way, Kano was subject of litigation in Suit No. K/190/2014 before the High Court of Justice, Kano and a judgment delivered by the Court on 24th July, 2017 and a writ of possession over the subject property granted in favour of the objectors who have long taken possession.
(3) That the plaintiff herein, through Bebeji Oil & Allied Products Ltd had filed an appeal to the Court of Appeal, Kaduna Division against the decision of the Kano State High Court Suit No. K/190/2014, through Appeal No. CA/K/84/2018 and same is currently pending.
(4) That this suit is a gross abuse of the process of this Court.
(5) That the Court with due respect lacks the jurisdiction to entertain and adjudicate over the instant suit. (See pages 78-79 of the Records)
After hearing arguments on the preliminary objection, and considering the addresses of Counsel, the learned trial Judge dismissed the preliminary objection and directed that the originating process be served on the 1st Respondent (who had said he was not properly served). The trial Court said:
“The plaintiff/respondent on the other hand aver that the parties in the previous case are different from the parties in this suit all (sic) the subject matter in this suit is also different from the subject matter in this (sic) suit, hence there is nothing like abuse of Court process.
In determining whether (sic) constitute an abuse of Court process, the Court will consider the contempt (sic) of the first process visa (sic) a vis the second one, to see whether they are aimed at achieving the same purpose. See Agwacim & Anor Vs Ojichie & Anor LPELR 256. Suit No. K/190/2014 is the case that was filed first when (sic) was determined by Hon. Justice P. A. Mahmud (now JCA) in that suit the parties were:
(1) Alhaji Abubakar Audu Bako
(2) Alhaji Kabiru Audu Bako
(Both suing for themselves or behalf of heirs and family of Late Alhaji Audu Bako as plaintiff (sic)
AND
(1) The Executive Governor of the State
(2) Attorney General of Kano State
(3) Ministry of Land & Physical Planning
(4) Bebeji Oil and Allied Products, that as Defendants.
The subject matter in this suit is No. 14B Ahmadu Bello Way, Kano covered by of Certificate of Occupancy No. LNK/RES/82/392. The reliefs as per the judgment of the Hon. Justice P. A. Mahmud (now JCA) is in relation to property No. 14B Ahmadu Bello Way, Kano. <br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
From the writ of summons all (sic) the statement of claim in this suit before this Court, the parties are:
Dantata Investment and Securities Ltd as plaintiffs
AND
(1) Arch. Abubakar Audu Bako
(2) Alhaji Kabiru Audu bako – For themselves and heirs of the family of Late Alhaji Audu Bako as Defendants.
The subject matter is the property No. 14 Ahmadu Bello Way, Kano, covered by Certificate of Occupancy No. LNK (sic)/82/392 (sic). It is glaring from the 2 writs, that the parties in this (sic) 2 suits was not a party in the first suit. Similarly, the subject matter in the 1st suit is not (sic) 14B as opposed to the property in the 2nd suit, which is property No. 14 Ahmadu Bello Way. In the case of Ogbogu Vs Ndiribe (1992) 6 SCNJ 301, the apex Court held that for a party to successfully invoke res-judicata or the cause of action estoppel, namely estoppel per nom (sic) judicatum, it must be shown that the parties are the same in the earlier as well as in the case before the Court in which the plea is raised.
In the instant case, the parties and the subject matter are not the same, hence neither the doctrine of res-judicate, now (sic) the principle of abuse of Court process is applicable here…” (See pages 268-270 of the Records of Appeal).
The trial Court also upheld the service of originating process on 2nd Defendant, and set aside the service on 1st Defendant, for improper service.
That is the decision Appellants appealed against, as per the Notice of Appeal, filed on 31/7/2019. (See pages 275 of the Records of Appeal). Appellants filed their Brief of Arguments on 20/9/2019 and donated two (2) issues for the determination of the Appeal, namely:
(1) Whether the suit at the Court below does not constitute an abuse of the processes of the Court, in view of an earlier suit, filed over the same subject property, for which an appeal is currently pending before this Court. (Ground one)
(2) Whether, the service on the Appellants of the originating Court process at the lower Court was proper in law. (Ground 2)
The Respondent filed its brief on 17/9/2020 and raised two (2) issues too for the determination of the appeal, as follows:
(1) Whether Suit No. K/586/2018 constitute an abuse of Court processes, in view of the earlier Suit No. K.190/2014, allegedly filed over the same subject property for which judgment had been delivered and which is subject of an appeal by a different party before this Honourable Court.
(2) Whether the service of the originating process on the Appellants was improperly done in the whole circumstances and the ruling of the trial Court delivered on 17th July, 2019?
The Appellants filed a Reply Brief on 22/9/2020, in reaction to the Respondent’s brief. The appeal was argued on 2/6/2022.
Arguing the issue one, Appellants’ Counsel, Sule Shu’aibu Esq., said that the Respondent abused the Court’s process by filing the suit, having been a party to the earlier Suit No. K/190/2014 (by proxy), already determined by the lower Court, for which appeal is pending in this Court. Counsel said that the Respondent herein was agent or ally of the 4th Defendant in the previous Suit. He referred us to the Exhibits A, B, C, D, D1 and E, attached to the preliminary objection (pages 95-199 of the Records of Appeal).
Thus, Counsel said the parties and the subject matter are the same in the two cases. He said that the main intention as could be seen in both cases is aimed at achieving the same goal or purpose, and that is precisely what the judicial authorities on abuse of Court process seek to check. He said that the Respondent’s Suit seeks to secure the property No. 14 Ahmadu Bello Way Kano, which is one and the same fruitless effort in the earlier Suit K/190/2014, already decided, and on appeal. He cited some cases against such practices leading to abuse of Court process, including Seven Up Bottling Co. Ltd Vs Abiola & Sons Bottling Co. Ltd (1996) 7 NWLR (Pt 463) 714.
Counsel called the attention of this Court to the property in issue – (No. 14 Ahmadu Bello Way, kano), subject matter of Certificate of Occupancy No. LKN/RES/82/392, comprising a block of 6 flats, which had been shown to had been subdivided into 14A and 14B Ahmadu Bello Way, Kano, with 14B now covered by a Certificate of Occupancy, No. LKN/RES/RC/93/39 (see pages 95-103 of the Records of Appeal); Counsel said that the judgment in K/190/2014 left no one in doubt, that the subject matter in the judgment, is the one before the lower Court, in this case – K/586/2018.
Counsel referred us to paragraphs 2.3 – 2.5 of the Appellants’ brief (summary of facts), and argued that it will be absurd for the trial Court to hear and determine the case, as constituted, after it had already been done, and an appeal pending on that decision. He relied on the case of Abana Vs Obi & Ors (2004) LPELR-7429, Utuk Vs The Official Liquidator (Utuks Constructions & Marketing Co. Ltd) (2008) LPELR-4323, AKporue & Ors Vs Okei & Ors (supra); Onwuka Vs Maduka (supra). He also relied on the case of Soyinka Vs Oni & Ors (2011) LPELR-4096.
On issue 2, whether the service on the Appellants of the originating Court processes at the lower Court was proper, in law, counsel answered in the negative. He said that the failure to serve the 1st Appellant, and even the service at night of 2nd Appellant, was not only defective, but also robbed the lower Court of jurisdiction to continue with the suit. He relied on Emeka Vs Okoroafor & Ors (2017) LPELR-41738 (SC). Counsel said that the affidavit of Appellants on the point, in support of the preliminary objection, was not disputed by the Respondent; he said that 1st Appellant was not served at all, and that the 2nd Appellant, who was served, collected service at night, for himself and for the 1st Appellant. He prayed for the setting aside of the service.
Counsel urged us to resolve the issues for the Appellants and to allow the appeal.
The Respondent’s Counsel, Salisu Sule Esq., on Issue one, said that by virtue of the subject matter and parties in Suit No. K/190/2014 and K/586/2018, Appellants’ contention that Suit No. K/586/2018 was an abuse of the Court process, cannot be further from the truth; he said that no abuse occurred and there was no issue of res judicata, because:
(1) The Suit No. K/190/2014 was about the landed property known as 14B, Ahmadu Bello Way Kano, covered by Certificate of Occupancy No. LKN/RES/RC/93/39, dated 29/3/1996. Whereas, the Suit No. K/586/2018 by the Respondent, claimed title and possession to the property known as 14 Ahmadu Bello Way Kano, covered by Certificate of Occupancy No. LKN/RES/RC/93/39 (sic) of 9/11/1983.
(2) That in the judgment of the Court in Suit No. K/190/2014, the trial Court never made any pronouncement that the landed properties known as No. 14B and 14 Ahmadu Bello way Kano, were one and the same property, but only made a declaration in respect of No. 14B Ahmadu Bello Way, Kano, covered by Certificate of Occupancy No. LKN/RES/RC/93/39.
(3) He added that the parties in the two cases are different. He underlined the 4th defendant in K/190/2014 – BEBEJI OIL & ALLIED PRODUCTS LTD, and the name of plaintiff in K/586/2018 – DANTATA INVESTMENT AND SECURITIES LTD, as distinct and separate persons (parties).
Counsel relied on the authors of Halsbury’s Law of England, 4th Edition, page 860, paragraph 975, on the applicability of the doctrine of res judicata, and cited the case of Oshoboja Vs Amida (2009) 40 NSCQR 657, on the applicability of res-judicata and issue estoppel, which stated, thus:
“The conditions for the application of the doctrine have been stated as being that:
(1) The said question was decided in both proceedings
(2) The judicial decision said to create the estoppels 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 estoppels is raised or their privies.” Counsel cited other cases on the issue, including, Nkanu & Ors Vs Onun & Ors (1977) 5 SC 13, Iyaji Vs Eyigebe (1987) 3 NWLR (Pt. 61) 523 and Alapo VS Agbokere (2014) ALL FWLR (Pt 524) 40, Ekpoke Vs Usilo (1978) 6-7 SC.
Counsel added that the parties in SUIT Nos. /190/2014 and K/586/2018, are different; that BEBEJI OIL & ALLIED PRODUCTS LTD and DANTATA INVESTMENT AND SECURITIES LTD, as Defendant and plaintiff, respectively, are clearly two different legal entities and the Appellants have not been able to establish, by any stretch of imagination, that Bebeji Oil and Allied Products Ltd in Suit No. K/190/2014 is a proxy of Dantata Investments & Securities Company Ltd in Suit No. K/586/2019, to make the plea of res judicata applicable, as a defence in Suit No. K/586/2018.
Counsel also said that Appellants have not been able, by way of credible evidence, to establish that the subject matter of both Suits, K/190/2014 and K/586/2018, are the same, Appellants can only succeed, if the land in that Suit No. K/190/2014 concerned the land at No. 14 Ahmadu Bello way, kano, covered by Certificate of Occupancy No. LKN/RES/82/392 of 9/11/1983, which is the subject matter of K/586/2018.
He re-stated that the subject matter in K/190/2014 was the land at No. LKN/RES/RC/93/39 of 29/3/1996, which incidentally, is now the subject matter of Appeal No. CA/K/84/2018, before this Court.
On the issue 2, Counsel said that Appellants were never able to establish that the originating processes in Suit No. K/586/2018 were improperly served on the two Appellants, and if it was, what miscarriage of justice they suffered. He said that the trial Court was right to say that Appellants were served at night (about 8pm) and the 1st Appellant, served, through the 2nd Appellant, who endorsed service on 24/9/2018. Counsel argued that Appellants were therefore served, personally, going by the decision in Mohammed Vs Salaudeen (2018) ALL FWLR (Pt 932) 779 at 821, where it was held:
“Personal service does not necessarily mean that the bailiff must himself, give the process to the person they are meant for. What personal service means is that the person to be served must personally get it.”
Counsel said that Appellants in this case got all the requisite processes, personally and appeared in Court, through Counsel to contest the suit; that the trial Court was therefore right to hold that 2nd Appellant was served, personally on 24/9/18 and had also collected service for 1st Appellant; and that the Court was right for also directing that the 1st Appellant be served again, personally. Counsel urged us to resolve the issues against Appellants and to dismiss the appeal.
In their reply, on Points of Law, Appellants said that the Respondent had pleaded the property No. 14 Ahmadu Bello Way, Kano, in their Counter-Claim in Suit No. K/190/2014 and stated that the property No. 14 and 14B were vested in Dantata Investment & Securities Co. Ltd. Counsel reproduced parts of the said counter-claim in K/190/2014, as follows:
“b) Declaration of the Hon. Court that rights and interest in and over No. 14. Ahmadu Bello Way, Kano which include No. 14a and 14b are now vested with Dantata Investment and Securities Co. Ltd.
c) Declaration of Court that the Plaintiffs Certificate of Occupancy No. LKN/RES/RC/93/39 was not issued in respect of No. 14 Ahmadu Bello Way but in respect of piece of land at Ahmadu Bello Way, Kano.
c) (i) Declaration of Court that the landed property situate at No. 14 Ahmadu Bello Way, Kano covered by Right of Occupancy No. LKN/RES/82/392 belongs to the 4th Defendant.
d) Declaration of Court that if at all, the said plaintiffs Certificate of Occupancy was issued in respect of No. 14 Ahmadu Bello Way, then the Certificate of Occupancy No. LKN/RES/RC/93/39 cannot be issued over an existing Right of Occupancy No. LKN/RES/82/392 and same is void.
e) An order of Court allowing the Dantata Investment and Securities Co. Ltd to continue with renovation work over its properties for benefit of its staff and tenants. (Underlining by Counsel).
Counsel argued that the above counter-claim in K/190/2014, shows that the Respondent in this appeal had earlier anticipated (this case) in the Suit No. K/190/2014, through the counter-claim therein, where judgment was given in finality and against the Respondent herein and to which there is a valid, pending and subsisting appeal before this Honourable Court by the said Respondent herein against the judgment of that Court. Thus, Counsel said that with the counter-claim linking the 4th Defendant in K/190/2014 (Bebeji Oil and Allied Products Ltd) with Dantata Investment and Securities Co. Ltd (Plaintiff in this case) as the owner of the property, and identifying the property as No. 14 Ahmadu Bello Way Kano, comprising No. 14a and 14b, it was obvious the attempt to present the parties (4th Defendant in K/190/2014 and Plaintiff in K/486/2018) as different persons, is misleading and dishonest, as the Respondent was trying to play a fast game. Counsel relied on R. T. NA & Ors Vs H.W.U.N & Ors (2008) LPELR-3196, where it was held:
“Indeed, under our law, a person whose interest is involved or is in issue in an action and who knowingly chose to standby and let others fight his battle for him, is equally bound by the result in the same way as if he were a party.” Per Ogbuagu, JSC.
On the issue 2, Counsel said the Respondent appeared to have misunderstood the issue; that having not filed a Cross-Appeal or Respondents’ Notice, as to the decision of the lower Court, allowing the objection on the non-service of all the processes on the 1st Appellant, the Respondent merely dissipated energy trying to argue that there was proper service on the 1st Appellant as it was with the 2nd Appellant, that their argument amounted to disagreement with the decision of the trial Court.
RESOLUTION OF ISSUES
I shall consider this appeal on the two issues distilled by the Appellants, which are the same as the Respondent’s, except for semantics, and I think the real critical issues is the 1st issue:
“Was the trial Court right to hold that the Suit No. K/586/2018 did not constitute abuse of the Court process, in view of the facts of an earlier Suit No. K/190/2014, over same subject property, for which final judgment had been delivered, and appeal on the same, currently pending before this Court of Appeal in CA/K/84/2018?”
A brief of facts of the case at the lower Court shows that the Respondent, as plaintiff, filed the Suit No. K/586/2018 on 19/12/2018, seeking the Reliefs therein, which were a claims over the land/property at No. 14 Ahmadu Bello Way, Kano subject matter of Certificate of Occupancy No. LKN/RES/82/392 of 9th Nov. 1983, against the Appellants (as Defendants). Prior to the suit, the Appellants herein, as plaintiffs, had earlier sued the (1) Governor of Kano State, (2) Attorney General of Kano State (3) Ministry of Land and Physical Planning, Kano as well as (4) Bebeji Oil and Allied Products Ltd, over ownership of the landed properties known as No. 14B and 14 Ahmadu Bello Way, Kano, subject matter of Certificate of Occupancy No. LKN/RES/RC/93/39, in Suit No. K/190/2014. They obtained judgment on 24/7/2017 and a writ of possession over the property was granted to them (Appellants herein) in the suit. Dissatisfied, the 4th Defendant (Bebeji Oil & Allied Products Ltd) filed appeal against the judgment, which is still pending in this Court in CA/K/84/2018.
It is noteworthy, that the 4th Defendant, Bebeji Oil & Allied Products Ltd, had filed a Counter-Claim in the Suit No. K/190/2014, laying claims to the same property, and seeking declaration of that: “rights and interest in and over No. 14 Ahmadu Bello Way, Kano, which include No. 14a and 14b are now vested with Dantata Investment and Securities Co. Ltd.” The counter-claim also said “that the land and property situate at No. 14 Ahmadu Bello Way, Kano covered by Right of Certificate No. LKN/RES/82/392, belongs to the 4th Defendant.” It also sought “An order of Court allowing the Dantata Investment and Securities Co. Ltd to continue with its renovation work over its properties for the benefit of its staffs and tenants.”
The Case No. K/190/2014 (as earlier stated) was adjudged for the Plaintiffs (Appellants herein) and the trial judge P. A. Mahmud (now JCA) had reprimanded the 4th Defendant, saying that its action on the property, amounted to self-help and had awarded ₦2,000,000.00 to the plaintiffs against the said 4th Defendant. See page 173 of the Records of Appeal. That was on 24/7/2017, and 4th Respondent filed an appeal, against that decision – CA/K/84/2018.
Surprisingly, on 19/12/2018, the Respondent (as plaintiff), while the appeal is pending, filed a new Suit No. K/586/2018 seeking to be declared the owner of the same property No. 14 Ahmadu Bello Way, Kano, subject matter of Certificate of Occupancy No. LKN/RES/82/392 of 9th Nov. 1983, which they claimed in the counter-claim in K/190/2014, though Bebeji Oil and Allied Products Ltd.
Apparently, the Plaintiff (Respondent herein), forget that it had expressed interest and right in/over the same property, through the 4th Defendant in K/190/2014 (Bebeji Oil & Allied Products Ltd), when in the counter-claim, the Plaintiff herein (Respondent) stated clearly and claimed “right and interest in and over No. 14 Ahmadu Bello Way Kano, which include No. 14a and 14b are now vested with Dantata Investment and Securities Co. Ltd” that the land and property situate at No. 14 Ahmadu Bello Way, Kano, covered by Right of Occupancy No. LKN/RES/82/392 belongs to the 4th Defendant, and seeking: An order of Court allowing the Dantata Investment and Securities Co. Ltd to continue with its renovation work over its properties for the benefit of its staff and tenants!”
Of course, the above claims in the counter-claim by the 4th Respondent, Bebeji Oil & Allied Products Ltd, shows that both the 4th Respondent in K/190/2014 and the Plaintiff (Respondent) in K/586/2018 are, together, and in the same camp, as a corporate family, and so the plaintiff in this case (Respondent herein) was very much a party in the Suit No. K/190/2014, and beneficiary or privy to the said Suit No. K/190/2014, which was determined on 24/7/2017, against them, and for which an appeal is still pending in this Court. The Respondent in this appeal was therefore bound by the decision of the Court in the previous Suit No. K/190/2014, as a party or privy to that suit, and they cannot therefore be expected to file or institute a fresh Suit (K/586/2018) over the same matter that has been contested and determined, with active participation of the Respondent, and for which appeal against that Judgment is pending in this Court.
The law is trite, that every party in or privy to a suit is bound by the decision of the Court reached at the determination of their suit. See the case of Agbogunleri Vs Depo & Ors (2008) LPELR 243 (SC), where it was held:
“Therefore, judgment against a testator operates downstream as the first suit ID/199/81, to operate against any fresh claim in respect of the same land or property by the same parties. This has been the position of the law for quite sometime. Thus, the general principle of the law relating to privy in title is that in transactions relating to land, any person who derives title from or takes an assignment from, or is let into possession by, or otherwise claims or “comes in” under the actual representor, is bound by the same representation, and consequent estoppel, as that which binds such actual representator. See Tylor v. Needham (1810) 2 Taunt. 279; Spenser, Bower and Turner in their book: Estoppel by Representation, Third Edition, Butterworth, London, 1977, pages 123 – 124.” Per MUHAMMAD, JSC.
On the meaning of the word “privy”, the authorities are replete, as in RE: Agboyi-Ketu Local Development Area & Anor (2017) LPELR-41955 CA, where this Court, per Georgewill, JCA, held:
“In relation to the facts and circumstances of this application, the word “Privy” has been defined so succinctly as “A person who is in privity with another. One who is a partaker or has any part or interest in any action or matter or thing. In connection with the doctrine of Res Judicata, one who after the commencement of the action has acquired interest in the subject matter affected by the judgment through or under one of the parties as by inheritances succession, purchase or assignment.” See Blacks Law Dictionary 6th Edition at p. 1200. See also Daniel v. Kadiri (Supra), Chief Oyelakin Balogun v. Pastor Moses Afolayan (2005) All FWLR (Pt. 85) 331 at p. 334, Kola Adedeji & Anor v. Otunba Segun Adebayo & Ors (2012) LPELR 7990 (CA).”
See also Agbogunleri Vs Depo & Ors (supra), where it was held:
“But, who is a privy? In Arabio v. Kanga (1932) 1 WACA 253 at p. 254, a privy was defined as that person whose title is derived from and who claims through a party. It may also imply identity of successive interest or persons having interest in property.”
Per MUHAMMAD, JSC.
In the case of R.T. NA & Ors Vs H.W.U.N. & Ors (2008) LPELR- 3196 (SC) (cited by Appellant):
“…Under our law, a person whose interest is involved or is in issue in an action and who knowingly chose to stand by and let other fight his battle for him, is equally bound by the result in the same way as if he were a party.”
It is therefore, obvious, that all the necessary elements required by law to sustain the arguments of Appellants on the principles of res judicata, were present in the arguments presented at the lower Court, at the hearing of the preliminary objection, but the trial Court chose to hold differently, and even hurriedly granted interim injunction in the case against the Appellants, on ex-parte application of the Respondent! See page 750 of the Records, showing the said order of interim injunction, dated 20/12/2018.
To satisfy the requirement for the principle of res judicata, the law requires that the parties, subject matter and the cause of action in the two suits (previous one and current suit) should be the same, and that the previous suit was, finally, determined. See Sani Vs The President FRN & Anor (2020) LPELR – 50990 (SC), where my Lord Nweze JSC held:
“The doctrine is grounded on public policy which stipulates that there must be an end to litigation as captured in the Latin maxim ‘interest rei publicae ut sit finis litium.’ The plea of res judicata is only employed by a plaintiff as a sword as the legal effect to the effect that the Court before which it has been raised has no jurisdiction to entertain the matter. As indicated above, the counsel cited Aborisade v Abolarin (2000) 10 NWLR (pt 671) 41, 51-52 as an authority to confirm if the conditions of estoppel per rem judicatam exist before it can be applied. Such cases like Ogbolosingha and Anor v B.S.I.E.C and Ors (2015) Vol 245 LRCN 140, D.T.T ENT (NIG) Co. Ltd v Busari (2011) 8 NWLR (pt.1249) 387, Bwacha v Ikenye (2011) 3 NWLR (pt 1235) 610 confirm the proposition that the conditions listed below must exist before the doctrine of res Judicata can apply; The parties or their privies are the same in both the previous and present proceeding; The claim or the issue in dispute in both actions is the same; The res or the subject matter of the litigation in the two cases is the same; The decision relied upon to support the plea of estoppel per rem judicatam is valid, subsisting or final; The Court that gave the previous decision, upon which to sustain the plea, is a Court of competent jurisdiction. However, with respect to the learned appellant’s counsel point, I find the above submission to be erroneous. It is not true that the lower Court erred in law by upholding the decision of the trial Court relying on paragraph 63 of Exhibit 1 as it forms part of the evidence submitted to it by parties and it forms part of the record of proceedings, I.F.A. INT’L Ltd v L.M.B. Plc [2005] 9 NWLR (pt. 930) 247, 291. According to the record of appeal, for this instant case, paragraph 63 of Exhibit 1 attached to the further affidavit in support of the originating summons constitutes the pleadings and the proceedings in this instant appeal since evidence is not allowed to be led in an action instituted by Originating Summons which the Court is not bound to call parties to address it since the documents were in Court before argument were taken. The Court therefore has the power to look at all the documents in its file. Winlyn Ltd v N.A.C.B and FIN Co. Ltd (2000) 8 NWLR (pt. 670) 594, 600. The Court has the power to study the proceedings and the judgment in the previous action, even if the subject matter and parties are not the same. Adone v lkebudu [2001] 14 NWLR (pt. 733) 385. As seen in the records, the subject matter of the suits FHC/KD/2812003 and FHC/ABJ/CS/247/2003 or CA/A/221/2003 and the subject matter in this suit as contained in pages 4-7 are identical. The reliefs claimed are not only similar but also identical. In view of the above reasoning, it is fair to say that I find no merit in the misguided submission of the appellant’s counsel. I hereby resolve the above issue against the appellant.”
See also the recent decision of this Court in Al-Sultahir Co. Ltd Vs Unity Bank Plc (2022) LPELR-57836 CA:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
“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.”
The rationale for the principles of res judicata has always been explained. See the case of Adiukwu Vs Enwereji (2016) LPELR-40504 CA, where we held:
“The principles of estoppels or plea of res-judicata is meant to stop a party from relitigating over a matter or issue that has enjoyed conclusive or effective adjudication and determination by a competent Court of law. I believe it was evolved to ensure the certainty of the law and enforce acceptance of Court decisions, to ensure that there is an end to litigation over a given issue or subject matter between the same parties and/or their privies. Section 169 of the Evidence Act, 2011, says: “When one person has, either by virtue of an existing Court judgment, deed or, agreement, originally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative, in interest, shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.” Sections 173 and 174 of Evidence Act 2011, stipulate, as follows: (173) “Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the Court, and appearing from the Judgment itself to be the 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 the judgment is intended to be proved. (174) (1) if a judgment is not pleaded by way of estoppels, it is as between parties and privies, deemed to be a relevant fact, whenever any matter which was or might have been decided in the action in which it was given, is in issue, or is deemed to be relevant to the issue, in any subsequent proceeding. (2) Such judgment is conclusive proof of the facts which it decides, or might have decided, if the party who gives evidence of it had no opportunity of pleading it as an estoppel.”
Also in Alao Vs Akano (1988) LPELR-410 SC, it was held:
“The principle behind this rule, is that where a competent Court has determined an issue, and entered judgment thereon, neither party may relitigate that issue by formulating a fresh action on what has already been decided. Madukolu v. Nkemdilim (1962) 1 All NLR 587. But it is important to note that when a plea of a res judicata is made, it is necessary to show not only that the cause of action is the same, but also that the plaintiff has had an opportunity to recover in the first action that which he seeks to recover in the second. Re Hilton ex p. March (1892) 67 L.T. 594.” Per CRAIG, JSC.
I think the Respondent was only trying to be clever, by instituting a fresh suit (K/586/2018) on the same subject matter and property, at Ahmadu Bello Way, Kano, (comprising Nos. 14a and 14b, thereof) covered by Certificate of Occupancy No. LKN/RES/82/392 of 9th November, 1983 (also pleaded as Certificate of Occupancy No. LKN/RES/RC/92/39 in K/190/2014), after the Respondent herein had (in the name of Bebeji Oil and Allied Products Ltd), litigated on the same, to conclusion in Suit No. K/190/2014, wherein it staked claim in the counter-claim, as 4th Defendant, in the case. The 1st to 3rd Defendants in that Suit (K/190/2014), that is, the Governor, Attorney-General and Ministry of Lands and Physical Planning, Kano, were only nominal parties in that case, as damages was ordered against the 4th Defendant, only, and it was the same 4th Defendant who appealed against the said judgment in Appeal No. CA/K/84/2018, as agent or proxy of the Respondent herein.
The learned trial Court was therefore wrong in my view, to dismiss the preliminary objection, raised by the Appellants in the circumstances, and to insist on going on to hear the case, again, after the facts of the previous Suit (K/190/2014), with the counter-claim of the 4th Respondent, had been clearly produced before the learned trial judge, as well as the facts of the pending appeal against the said judgment.
I see merits in this appeal as I resolve the issue one for the Appellants and allow the appeal.
I do not see the need to consider the issue two, in the circumstance that the appeal has succeeded on the issue one, save to add that, issue of service of originating processes of Court on defendants, personally, always appears strange to me, where/when the person complaining, about service is before the Court, upon being served, and is the one who engaged counsel to appear for him, in the Suit, but to contest or protest the service!
In the case of Nwarie Vs Nwankwo (2022) LPELR-57656 (CA), in my Lord, Owoade JCA, relying on my earlier decision in the case of Zaria Local Govt. Council & Anor Vs Kwastan (2014): CA/K/151/2009 of 17/1/2014, had stated as follows:
“Indeed, a defendant improperly served with Court processes has a duty to promptly protest. The Appellant/Defendant having not objected to the nature of service on her at the earliest opportunity agrees or he is deemed to agree that the Court has the power to bind her by its actions and waives the right to raise any jurisdictional defects afterwards i.e by claiming that the service was improper. See Dickson v. Okoi (2003) 16 NWLR (Pt. 846) 379, Ariori v. Elemo (1983) 1 SCNLR 1, Job Charles v. Okonkwo (2002) FWLR (Pt. 117) 1067, First Inland Bank Plc v. Gilbert Fiddi (2013) LPELR-20832 (CA) 20. The judgment of this Court per Mbaba, JCA in the case of Lt. Col. Eric Oseni (Rtd) v. Dele Oloje Esq. & Anor (2014) LPELR-22919 (CA) pp. 15-16 tellingly puts the matter of waiver of irregularity of service beyond doubt: “This point was made recently by the Court in the case of Zaria Local Government Council and Anor v. Alh. Salihu Ali Kwastan: CA/K/151/2009, delivered on 17/1/2014, where we held: “for me, it sounds ridiculous as it beats every sense of logic and reasoning, for a man, who has been served with the process of Court and for which he responded by entering his appearance and filing processes in his defence to contest the case, and at the end of the case, to turn around and seek to nullify the judgment, on the grounds that there was no due service of the originating process on him, particularly that no affidavit of service was deposed to by the Plaintiff, that he had not been served with the process of the Court that originated the case. That is pondering to ridiculous level to use of technicalities to frustrate justice! Having come to Court and taken part in the proceedings, without complaint of any sort, I believe the Appellants cannot, in good conscience, raise any issue of non-compliance with Order 2 Rule 1 (4) of the Fundamental Rights (Enforcement Procedure) Rules, 1979, since their appearance and taking part in the case were conclusive evidence of compliance with the law relating to service. After all, the purpose of that provision of the law was to ensure that a Respondent is duly served with the process of Court, before a Court can hear the Applicant.” In the instant case, having filed processes and/or participated in the proceedings the Appellant cannot now complain of improper service of originating process.”
Such arguments against service, in such circumstances do not add any value to the course of justice in our jurisprudences in my view.
On the whole, I hold that the learned trial Court was wrong to dismiss the preliminary objection, and to proceed to hear the suit. I set aside the said Ruling of the trial Court, and dismiss the claim of the Respondent (Suit No. K/586/2018) at the lower Court, for being an abuse of the Court process.
Where a suit is brought in abuse of the Court process, the correct order to make is to dismiss the suit. See the case of Ogbonmwan Vs Aghimien (2016) LPELR-40806 CA:
“Any case which is an abuse of process must go under the hammer in order to halt the drift by the abuse and it is settled law that where there is an abuse of process the proper order is the dismissal of the process that is the abuse: AFRICAN REINSURANCE CORPORATION vs. JDP CONSTRUCTION NIG. LTD (supra) and IGBEKE vs. OKADIGBO (2013) LPELR (20664) 1.” Per OGAKWU, JCA.
The Respondent shall pay the cost of this appeal assessed at One Hundred Thousand Naira (N100,000.00) to the Appellants.
BOLOUKUROMO MOSES UGO, J.C.A.: I had the privilege of reading in draft the leading judgment of my learned brother, ITA G. MBABA, J.C.A. I am in agreement with his reasoning and conclusion. I also allow the appeal.
I abide by the consequential orders in the leading judgment, including costs.
USMAN ALHAJI MUSALE, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, ITA G. MBABA, JCA. I am in agreement with the issues considered and resolved by His Lordship. I have nothing more to add. I abide by the conclusions reached therein.
Appearances:
SULE SHUAIBU, ESQ. For Appellant(s)
SALISU SULE, ESQ. For Respondent(s)