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CARAWAY VENTURES INTEGRATED NIG. LTD v. JAKANA & ORS (2022)

CARAWAY VENTURES INTEGRATED NIG. LTD v. JAKANA & ORS

(2022)LCN/16099(CA) 

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Friday, July 01, 2022

CA/G/6/2020

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

 

Between

CARAWAY VENTURES INTEGRATED NIG. LTD APPELANT(S)

And

1. ALHAJI UMAR IBRAHIM JAKANA 2. GOVERNOR OF BORNO STATE 3. COMMISSIONER FOR LAND & SURVEY, BORNO STATE 4. COMMISSIONER FOR WORKS & TRANSPORT, BORNO STATE 5. HON. ATTORNEY GENERAL, BORNO STATE RESPONDENT(S)

 

RATIO:                                                                                                                               

THE DOCTRINE OF RES JUDICATA AND ITS ELEMENTS

The doctrine of res judicata is a fundamental doctrine of all Courts that there must be an end to litigation. By res judicata, it means “a thing adjudicated”. In other words, it means “an issue that has been definitely settled by judicial decision”. The three essential elements of the doctrine therefore are:
(1) An earlier decision on the issue;
(2) A final Judgment on the merits; and
(3) The involvement of the same parties or parties in privy with the original parties.
See Adeyemi-Bero V LSDPC (2012) LPELR-20615(SC) 77, C-D, per Ariwoola, JSC, Coker V Sanyaolu (1976) LPELR-877(SC).
It ought to be borne in mind that the doctrine of res judicata serves the important purpose of putting an end to litigation by preventing parties from going through the agony of litigation twice on the same subject matter. What this means is that where a competent Court has determined a matter and entered final Judgment thereon, neither of the parties to the proceedings may relitigate that issue by formulating a fresh claim since the matter is res judicata – Cole V Jibunoh (2016) LPELR-40662(SC) 54, A-E, per Sanusi, JSC.

THE DOCTRINE OF ESTOPPEL PER REM JUDICATAM AND ITS EXPLANATION

In the case of Oleksandr V Lonestar Drilling Co. Ltd (2015) LPELR 24614(SC) 49-50, D-A, Kekere-Ekun, JSC held:
“The principle behind the doctrine of estoppel per rem judicatam was explained by this Court in Yusuf V Adegoke & Anor (2007) 11 NWLR (Pt. 1045) 332 at 361-362, H-A, per Aderemi, JSC thus:
“It has now become well entrenched in our civil jurisprudence that once a matter has been finally and judicially pronounced upon or determined by a Court of competent jurisdiction, neither the parties thereto nor their privies can subsequently be allowed to relitigate such matter in Court. A judicial decision properly handed down is conclusive until reversed by a superior Court and its veracity is not open to a challenge nor can it be contradicted. The term derives its force from good public policy which says there must be an end to litigation. The maxim is interest republicae ut sit finis litium.”

THE COURT CANNOT MAKE AN ORDER AGAINST A PERSON WHO IS NEITHER A PARTY OR PRIVY TO A PROCEEDING

The settled law is that the Court cannot make an order against a person who is neither a party or privy to a proceeding before it – Alioke V Oye (2018) LPELR-45153(SC) 18, A-D, per Bage, JSC; Kokoro-Owo V Lagos State Govt. (2001) LPELR-1699(SC) 14, B, per Wali, JSC. Therefore, the question which arose in this suit is: whether the 2nd, 4th and 5th Defendants are agents and/or privies of the 2nd Defendant (Ministry of Land & Survey Borno State) in the earlier suit?
THE MISCONCEPTION OF THE RELATIONSHIP BETWEEN A CORPORATION AND THE FEDERAL GOVERNMENT
Based on the above authority, this Court in Nigerian Postal Service V Mokwenye (2014) LPELR-24491(CA) 9-11, F-AA, per Ogunwumiju, JCA (as she then was) a case of similar facts, held –
“In line with the above authority, I am of the firm view that it will be a grave misconception to think and argue that because there does not exist an overt agent-principal relationship between a corporation and the Federal Government such corporation is not an agency of the Federal Government. Also, the argument that a body is incorporated and as such cannot be an agency of the Federal Government is highly misconceived. What is material is whether the body in question was created solely to further the cause of or give effect to a policy of the Federal Government and is subject to the control of the Federal Government.”
See also Olubukola V AG Lagos State (2016) LPELR-24491(CA) 34, B-D, FAAN V Bi-Courtney (2011) LPELR-19742(CA) 49-50, F-E.

THE NATURE OF ORIGINATING SUMMONS AND ITS PROCEDURE

In the case of Inakoju V Adeleke (2007) LPELR-1510(SC) 28-30, D-C, per Tobi, JSC held –
“Commencement of action by originating is a procedure which is used in cases where facts are not in dispute or there is no likelihood of their being in dispute. Originating summons is also reserved for issues like the determination of questions of construction and not matters of such controversy that the justice of the case could demand the setting of pleadings… In Famfa Oil Limited V Attorney General of the Federation (2003) 18 NWLR (Pt. 852) 453, Belgore, JSC (as he then was), said at page 467:
“The very nature of an Originating Summons is to make things simpler for hearing. It is available to any person claiming interest under a deed, will or other written instrument whereby he will apply by Originating Summons for the determination of any question of construction arising under the instrument for a declaration of interest… It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the pleadings of the parties to the suit. In such a situation, there is no serious dispute as to facts but what the plaintiff is claiming is the declaration of his rights.”

THE DUTY OF A COURT TO PROTECT VESTED RIGHTS IN STRICT COMPLIANCE WITH THE LAW

Courts have a duty to protect vested rights, as otherwise lawlessness will reign. So, they have always taken the view that any attempt by a competent authority to take away a citizen’s vested rights must be done in strict compliance with the law and any laid down procedure therefore.
As Lord Macnaghten put it in the case of Mayor, etc., of Westminister V London & North Western Railway Coy. (1905) AC 426, 430:
“… a public body invested with statutory power must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably.”
See Oyeyemi V Comm. LG Kwara State (1992) LPELR-2882(SC) 24-25, D-B, per Nnamaeka-Agu, JSC, Ojo V Gov., Oyo State (1989) 1 NWLR (Pt. 5) 1, Wilson V AG Bendel State (1985) 1 NWLR (Pt. 4) 1, Hart V Mil. Gov. Rivers State (1976) 2 FNLR 215.

THE DEFINITION OF A CAUSE OF ACTION AND ITS DETERMINATION

A cause of action is defined as the factual situation that determines the rights and liabilities before the Court. It is different from a right of action. A right of action precedes a cause of action. There is no cause of action without a right of action. See Oko vs A.G. Ebonyi State (2021) 14 NWLR (pt 1795) 63. The cause of action is referred to the dispute between the parties upon which the Court will have to determine the rights and liabilities between the parties. In defining what constitute a cause of action, the Supreme Court held in A. G. Federation vs A.G. of Abia State &Ors (2001) LPELR- 24862 (SC) thus:
“A cause of action has been defined to mean the fact or facts which establishes or gives rise to a right of action and that it is the factual situation which gives a person the right to judicial relief. (See Egbe v. Adefarasin ​(1987) 1 NWLR (Part 47) 1). It is sufficient for a Court to hold that a cause of action is reasonable once the Statement of Claim in a case discloses some cause of action or some questions fit to be decided by a Judge notwithstanding that the case is weak or not likely to succeed. The fact that the cause of action is weak or unlikely to succeed is no ground to strike it out.
(See Moore v. Lawson, 31 TLR 418 CA; Wenlock v. Moloney, (1965) WLR 1238 and Irene Thomas & others v. Olufosoye (1986) 1 NWLR (Part 18) 669).” EBIOWEI TOBI, J.C.A

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice Borno State in Suit No. BOHC/KDG/CV/10/2018 delivered on 15th October, 2019, Coram: M.S. Umara, J. It has been consolidated for hearing with Appeal No. CA/G/7/2020. They are sister appeals which arose from the same judgment of the Borno State High Court. On the application of the Appellants in appeal No. CA/G/7/2020, which was readily consented to by the Appellant in the instant appeal, Appeal No. CA/G/6/2020, the two appeals were consolidated for hearing. The appeals shall therefore be addressed separately but sequentially, starting with Appeal No. CA/G/6/2020.

The 1st Respondent herein, as Claimant, filed a suit before the lower Court against the 2nd – 5th Respondents, as well as the Appellant, (as 1st – 5thDefendants) vide an Originating Summons for the determination of the following questions:
1. “Whether by the provisions of Sections 176, 192, 193 of the Constitution of the Federal Republic of Nigeria, the 1st, 2nd, 3rd and 4th defendants are not jointly bound by the judgment of the Borno State High Court of Justice delivered on the 22nd March, 2018 to the extent that the 2nd and 3rd defendants are agents/agencies of the appointees/privies, agents of the 1st defendant and being Government of Borno State in accordance with Section 308 of the Constitution of the Federal Republic of Nigeria.
2. Whether by the provisions of Sections 176, 192, 193 read together with Section 308 of the Constitution of the Federal Republic of Nigeria, 1999 is not the judgment of the High Court of Borno State delivered on 22nd March, 2018 given against the 2nd Defendant is not binding on the Government of Borno State.
3. Whether by virtue of the judgment and order of the Borno State High Court of justice, the constructing of buildings on the land of the claimant as described in the order of this Honourable Court issued on 22nd March, 2018 (4,500 meters by 250 meters) by the 3rd defendant with the consent of the 1st defendant does not constitute further act of trespass by the defendants and subject to contempt of Court.”

He thereafter sought the following reliefs:
1. “A declaration that by virtue of Sections 192 and 193 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the 1st defendant being the Governor and Commissioners of Borno State Government in accordance with the provisions of the Constitution of the Federal Republic of Nigeria (as amended) are bound by the judgment of the Borno State High Court in Suit No. BOHC/KDG/CV/13/17 between Alhaji Umar Ibrahim Jakana Vs Shettima Mohammed Shettima (aka Abba Kolo) and Commissioner for Land and Survey Borno State.
2. A declaration that the 3rd defendant is not a separate entity not bound by the judgment of Borno State High Court in suit No. BOHC/KDG/CV/13/17 as it is part of Borno State Government established by Section 192 of the Constitution of the Federal Republic of Nigeria as it claims the land subject of litigation in Suit No. BOHC/KDG/CV/13/17 through the Borno State Government.
3. An order that the construction of building on the land measuring 500 meters by 250 meters covered by the Certificate of Occupancy No. BO/11478 situated at Auno/Kano Road under Konduga Local Government of Borno State is an act of further trespass and subject to contempt of Court.
4. An order or perpetual injunction restraining the defendants, their agents and/or privies, servants, staff and public servant, officer and whosoever claiming through them from further constructing building and any other or further act of trespass on the claimant property covered by certificate of occupancy No. BO/11478.
5. An order of this Honourable Court for demolition of the building or any constructions or structure and any improvement made there under by the defendants particularly 3rd defendant or their agents, servants or whosoever claiming through them.
6. A sum of N500,000,000 (Five Hundred Million Naira Only) damages as a result of the further act of trespass.
7. Cost of this suit.”

The parties to the suit joined issues on the claim by their various affidavits and numerous exhibits. The 5th Defendant, now Appellant, raised a preliminary objection to the hearing of the suit which was duly argued along with the substantive suit. Counsel for the respective parties adopted their written addresses. Thereafter, the lower Court delivered its ruling on the objection along with the Judgment. It dismissed the preliminary objection and entered judgment in favour of the 1st Respondent/Claimant, granting the declarations and orders sought, as well as awarding damages in the sum of 2, 000, 000.00, and the cost of the action.

Aggrieved by this decision, the Appellant filed an appeal to this Court vide a Notice of Appeal on 17th October, 2019 wherein he complained on two grounds. Thereafter, with the leave of this Court sought and obtained, the Appellant filed an Amended Notice of Appeal on 20-02-20 which was deemed duly filed and served on 23-09-21. This time the Appellant complained on four grounds. The grounds without their particulars are set out as follows:
“GROUND NO. 1
The learned trial Judge erred in law when he entertained Suit No. BOHC/KDG/CV/10/18 when the subject matter of the suit was also heard and determined by the same Court in Suit No. BOHC/KDG/13/17 and this occasioned a miscarriage of justice.
GROUND 2
The learned trial Judge erred in law when he delivered judgment in Suit No. BOHC/KDG/CV/10/18 against the Appellant when there was no cause of action against the Appellant and this has also occasioned a miscarriage of justice.
GROUND 3
The learned trial Court Judge erred in law when he granted an injunction and also awarded damages in a land matter based on affidavit evidence and this has also occasioned a miscarriage of justice.
GROUND 4
The learned trial Court Judge erred in law when he makes (sic) the Appellant liable to the judgment in Suit No. BOHC/KDG/CV/13/17 when the Appellant was not a party to such a suit and this has also occasioned a miscarriage of justice.”

Therefore, the Appellant seeks the following reliefs:
“To set aside the decision of the trial Court delivered on the 15th October, 2019 against the 5th Defendant/Applicant.”

At the hearing of the appeal on 23-05-22, learned Counsel for the Appellant, Usamatu Abubakar Esq., adopted the submissions in the Appellant’s Brief of argument filed on 01-11-21 and settled by B.S. Zanna Esq., in urging the Court to allow the appeal and set aside the judgment of the trial Court. In like manner, learned Counsel for the 1st Respondent, A.R. Abdusalam Esq., adopted the submissions in the 1st Respondent’s brief of argument filed on 17-01-22, deemed filed on 18-01-22 and settled by the same Counsel, in urging the Court to dismiss the appeal. On his part, learned Counsel for the 2nd – 5th Respondents did not file any Brief of argument.

In the Appellant’s brief of argument, learned Counsel for the Appellant crafted three issues for the determination of the Appeal, thus:
1. “Whether or not Suit No. BOHC/KDG/CV/10/18 is caught up by the doctrine of res judicata and issue estoppel. (Ground one)
2. Whether or not there was a cause of action against the Appellant having regard to the affidavit evidence in support of the 1st Respondent’s Amended Originating Summons and coupled with the fact that the Appellant was not a party to Suit No. BOHC/KDG/CV/13/17. (Grounds 2 & 4)
3. Whether or not an injunction and damages can be granted in a land dispute based on affidavit evidence. (Ground 3).”

Learned Counsel for the 1st Respondent adopted the issues for determination framed by the Appellant. The same issues shall therefore be addressed in the resolution of the Appeal.

ARGUMENTS
Under this issue, learned Counsel for the Appellant submits that the paragraphs 40 and 41 of the 1st Respondent’s affidavit in support of the Amended Originating Summons disclose that this suit was initiated after a similar case in Suit No. BOHC/KDG/CV/13/18 was heard and determined by the lower Court. He contends that, contrary to the argument of the 1st Respondent before the lower Court, the parties are the same. That the claimant in both suits is the same person and the 3rd Respondent herein was the 2nd Defendant in the earlier suit. That the mere addition of the 2nd, 3rd and 4th Respondents to the instant suit does not make the cases different. It is therefore argued that since there is a pending appeal against the judgment delivered in Suit No. BOHC/KDG/CV/13/17, the filing of the subsequent suit leading to this appeal by the 1st Respondent, amounts to an abuse of process of Court.

Under issue two, Counsel submits that there was no reasonable cause of action disclosed against the Appellant in the affidavit in support of the Originating Summons filed by the 1st Respondent, as the Appellant was not a party to Suit No. BOHC/KDG/CV/13/17.

Under issue three, Counsel submits that, since the 1st Respondent sought for an order of perpetual injunction, as well as damages, which claims are contentious, the suit should not have been commenced by way of an Originating Summons but by means of a Writ of Summons under Order 6 Rules 1 and 2 of the High Court (Civil Procedure) Rules of Borno State, 2017. Counsel relied on a host of decisions in support of his submissions. He finally urged the Court to resolve the issues in favour of the Appellant and allow the appeal.

In response to the submissions of the Appellant under issue one, learned Counsel for the Respondent submits that the suit before the lower Court is not caught by the doctrine of res judicata and issue estoppel. He argues that the parties in the case leading to this Appeal and those in the earlier case in Suit No. BOHC/KDG/CV/13/17 are not the same. He refers to the letter written by 4th Respondent (then 4th Defendant), Exhibit IB7 in response to the Appellant’s letter. His position in the letter is that one Government Ministry is not the privy of another in respect of actions in Court Therefore, that the 3rd Respondent being an independent Ministry is not bound by the Judgment in which the 4th Respondent (another Ministry) was adjudged a trespasser, and so the restraining order does not bind it.

Counsel submits that it was based on the letters, Exhibits IB6 and IB7, that the 1st Respondent went back to Court for the construction of Sections 176, 192, 193 and 308 of the Constitution (supra) and sought for consequential orders. He submits that the subject matter in this suit is the interpretation of Sections 176, 192, 193 and 308 of the Constitution, whereas the subject matter in the previous case, Suit No. BOHC/KDG/CV/13/17 was for:
(i) a declaration that the 1st Respondent, Claimant herein, is the rightful holder of the Statutory Right of Occupancy No. BO/11478 in respect of a farmland lying and situate at Auno-Kano Road in Konduga LGA;
(ii) a declaration that the 2nd Respondent trespassed by erecting a signpost on the claimant’s land;
(iii) a declaration that the 1st Defendant in that case, (who is not a party to the suit giving rise to this Appeal), is not entitled to hold the original certificate of occupancy no. BO/11478; and
(iv) that he has committed trespass by setting up a wall fence without the consent of the Claimant.

Counsel submits that the previous suit was commenced by way of a Writ of Summons. Based on this, Counsel argues that the subject matter is not the same. He also submits that the issues are not the same because in the instant case, the issue is whether the orders of the Court in the previous suit binds persons who the Appellant is a privy to. He argues that the 3rd Respondent was not a party to the previous suit and so it did not bind him, leading therefore to the necessity of the later suit. The 1st Defendant in the previous suit, who was ordered to return the Certificate of Occupancy No. BO/11478 to the 1st Respondent/Claimant, and is yet to do so, is not a party to the present suit and so the decision rendered would not bind him. Counsel therefore submits that the Appellant did not establish that the issues and parties are the same, and that the judgment of a Court of competent jurisdiction has decided the matter previously. Therefore, the suit is not res judicata.

In respect of issue two, Counsel submits that affidavit evidence discloses a cause of action against the Appellant, which is: the construction being carried on, on the land upon which there is a restraining order issued by a competent Court of law in the previous suit.

On issue three, Counsel submits that the trial Judge has power to grant consequential orders of injunction and damages in the event that the claim seeking the interpretation of the provisions of the Constitution succeeds. He also submits that the suit was rightly commenced by way of an Originating Summons since the facts presented by the 1st Respondent were not disputed by the Appellant. He relied on numerous decided cases to buttress these submissions. In addition, Counsel submits that issues two and three for determination are fresh issues raised in the Appeal without the leave of Court having been obtained. He therefore urged the Court to discountenance them. Finally, Counsel urged the Court to dismiss the Appeal for lacking in merit.

RESOLUTION OF ISSUES
In respect of the first issue, which is whether, in view of the decision of the same trial Court in Suit No. BOHC/KDG/CV/13/2017, the case leading to this appeal is caught by the doctrine of res judicata?

The doctrine of res judicata is a fundamental doctrine of all Courts that there must be an end to litigation. By res judicata, it means “a thing adjudicated”. In other words, it means “an issue that has been definitely settled by judicial decision”. The three essential elements of the doctrine therefore are:
(1) An earlier decision on the issue;
(2) A final Judgment on the merits; and
(3) The involvement of the same parties or parties in privy with the original parties.
See Adeyemi-Bero V LSDPC (2012) LPELR-20615(SC) 77, C-D, per Ariwoola, JSC, Coker V Sanyaolu (1976) LPELR-877(SC).
It ought to be borne in mind that the doctrine of res judicata serves the important purpose of putting an end to litigation by preventing parties from going through the agony of litigation twice on the same subject matter. What this means is that where a competent Court has determined a matter and entered final Judgment thereon, neither of the parties to the proceedings may relitigate that issue by formulating a fresh claim since the matter is res judicata – Cole V Jibunoh (2016) LPELR-40662(SC) 54, A-E, per Sanusi, JSC.
In the case of Oleksandr V Lonestar Drilling Co. Ltd (2015) LPELR 24614(SC) 49-50, D-A, Kekere-Ekun, JSC held:
“The principle behind the doctrine of estoppel per rem judicatam was explained by this Court in Yusuf V Adegoke & Anor (2007) 11 NWLR (Pt. 1045) 332 @ 361-362, H-A, per Aderemi, JSC thus:
“It has now become well entrenched in our civil jurisprudence that once a matter has been finally and judicially pronounced upon or determined by a Court of competent jurisdiction, neither the parties thereto nor their privies can subsequently be allowed to relitigate such matter in Court. A judicial decision properly handed down is conclusive until reversed by a superior Court and its veracity is not open to a challenge nor can it be contradicted. The term derives its force from good public policy which says there must be an end to litigation. The maxim is interest republicae ut sit finis litium.”

Thus, the issue here is fairly straightforward. Is the case before the trial Court caught by the doctrine of estoppel per rem judicatam in view of the decision in Suit No. BOHC/KDG/CV/13/2017? The learned trial Judge did not think so and after due analysis, said so in no unmistakable terms in his judgment. I have carefully considered the arguments of learned Counsel for the respective parties on this issue vis-à-vis the two suits referred to. The first point to consider is whether or not the parties in the two suits are the same? From the record of proceedings in Suit No. BOHC/KDG/CV/13/2017, the parties are clearly set out in the enrolled order of the Borno State High Court at page 88 of the record of appeal, thus:
“BETWEEN:
Alhaji Umar Ibrahim Jakana Claimant
And
1. Shettima Mohammed Shettima (aka Abba …) Defendants
2. Comm. For Land & Survey Borno State
The parties in the case leading to the instant appeal, Suit No. BOHC/KDG/CV/10/2018 are obvious, but for clarity of argument and ease of reference, they are set out hereunder:
“BETWEEN
ALHAJI UMAR IBRAHIM JAKANA CLAIMANT
AND
1. GOVERNOR, BORNO STATE DEFENDANTS
2. COMMISSIONER OF LAND & SURVEY, BORNO STATE
3. COMMISSIONER FOR WORKS & TRANSPORT, BORNO STATE
4. HON. ATTORNEY-GENERAL, BORNO STATE
5. CARAWAY VENTURES INTEGRATED NIGERIA LTD

It is evident from the above that the Claimant and 2nd Defendant in the later suit are the same as the Claimant and 2nd Defendant in the earlier suit decided by the same High Court in 2018.

The settled law is that the Court cannot make an order against a person who is neither a party or privy to a proceeding before it – Alioke V Oye (2018) LPELR-45153(SC) 18, A-D, per Bage, JSC; Kokoro-Owo V Lagos State Govt. (2001) LPELR-1699(SC) 14, B, per Wali, JSC. Therefore, the question which arose in this suit is: whether the 2nd, 4th and 5th Defendants are agents and/or privies of the 2nd Defendant (Ministry of Land & Survey Borno State) in the earlier suit?

Who then is an agent? The term “agent” includes any person who acts for another in the capacity of deputy, steward, rent collector or any agent or trustee. In Black’s Law Dictionary, 7th Edition, an agent is defined as a person authorized by another (principal) to act for or in place of him; one entrusted with another’s business – Cotecna Int. Ltd V Churchgate Nig. Ltd (2010) LPELR-897(SC) 58, B-C, per Adekeye, JSC, Osigwe V PSPLS Management Consortium Ltd (2009) LPELR-2807(SC) 30-31, B-A, per Ogbuagu, JSC, Bamgboye V Unilorin (1999) LPELR-737(SC) 36, A-C, per Onu, JSC.

In the case of Edosa V Ehimwenma (2022) LPELR-56869(SC) 15-16, F-C, Nweze, JSC held: “As a matter of general law of Agency, there are three ways an agency relationship may be created:
1. By agreement, whether express or implied, from the circumstances of the case;
2. Retrospectively, by subsequent ratification by the principal of acts done on his behalf;
3. By operation of law under the doctrine of agency of necessity and in certain other cases.”

In the same vein, who is a privy? The word privy refers to a person having a legal interest of privity with another in any matter, or property. Black’s Law Dictionary (9th Edition) at page 1320 explains that –
“A person having a legal interest of privity in any action, matter or property; a person who is in privity with another. Traditionally, there were six types of privies:
(1) Privies in blood such as an heir and an ancestor;
(2) Privies in representation, such as an executor and a testator or an administrator and an intestate person;
(3) Privies in estate, such as grantor and grantee or lessor or lessee;
(4) Privies in respect to control the parties to a contract;
(5) Privies in respect of estate and contract, such as a lessor and lessee where the lessee assigns an interest, but the contract between the lessor and lessee continues because the lessee does not accept the assignee;
(6) Privies in law, such as husband and wife. The term also appears in the context of litigation. In this sense, it includes someone who controls a lawsuit though not a party to it; someone whose interests are represented by a party to the lawsuit; and a successor in interest to anyone having a derivative claim.”
See also Ndulue V Obinaguoha (2013) LPELR-22576(CA) 51-52, D-A, per Agim, JCA (as he then was).
In Adalma Tankers Bunkering Services Ltd V CBN (2022) LPELR-57036(SC) 44-45, E-B, Peter-Odili, JSC held –
“The word ‘privy’ has also been defined to include all those who are privy to the parties on record in blood, title or interest and estoppel per rem judicatam operates against them all. See Musa Iyaji V Sle Eyi Gebe (1987) LPELR-1571 SC 1 at 22-23, G-A, per Oputa, JSC where this Court held thus:
“Who is a Privy? Are the parties to this appeal privies of the parties in Exhibit D1? In Carlzein-Stiftung V Rayner 4 Kueler Ltd (No. 2) (1996) 2 All E.R. 536 H.L. at P. 550, Lord Reid held that privies include all those who are privies to the parties, in blood or title or interest and estoppel per rem judicatam operates for or against, not only parties but also those privies above mentioned.”

Section 5(2) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides:
“Subject to the provisions of this Constitution, the executive powers of this Constitution, the executive powers of a State –
(a) Shall be vested in the Governor of that State and may subject as aforesaid and to the provisions of any law made by a House of Assembly be exercised by him directly or through the Deputy Governor or Commissioners of the Government of that State or officers in the public service of the State.”
The word “Government” is defined in Section 277(1) of the Constitution (supra) to include –
“The government of the Federation or of any State or of a Local Government or any person who exercises powers or authorities on its behalf.”

My considered view is that the Commissioner of Works and Transport cannot, under the various provisions of the Constitution, unilaterally take a decision without the endorsement of the Executive. Government in a democratic society is organized on the basis of collective responsibility. The act is the act of the Borno State Government collectively, not that of the Commissioner of Works & Transport only – Tende V AG Federation (1988) LPELR-20517(CA) 29-36, C-D. In the instant case, the 4th Respondent was part and parcel of the State Government and therefore subject to its control. He was therefore an agent of the Borno State Government – Nigerian Reinsurance Corp. V Cudjoe (2008) All FWLR (Pt. 414) 1455, 1551, E-F, per Adekeye, JSC.
Based on the above authority, this Court in Nigerian Postal Service V Mokwenye (2014) LPELR-24491(CA) 9-11, F-AA, per Ogunwumiju, JCA (as she then was) a case of similar facts, held –
“In line with the above authority, I am of the firm view that it will be a grave misconception to think and argue that because there does not exist an overt agent-principal relationship between a corporation and the Federal Government such corporation is not an agency of the Federal Government. Also, the argument that a body is incorporated and as such cannot be an agency of the Federal Government is highly misconceived. What is material is whether the body in question was created solely to further the cause of or give effect to a policy of the Federal Government and is subject to the control of the Federal Government.”
See also Olubukola V AG Lagos State (2016) LPELR-24491(CA) 34, B-D, FAAN V Bi-Courtney (2011) LPELR-19742(CA) 49-50, F-E.
Thus, in the circumstances of this case, vis-à-vis the provisions of the Constitution, the decision of the 4th Respondent to enter into the land awarded to the 1st Respondent through the 5th Respondent, was that of the Governor of Borno State who represents the Borno State Government and whose act can be properly described as the act of the Government of the State. The trial Court was therefore right to hold that, notwithstanding the fact that the 1st Respondent/Claimant complained about the overt acts of the 4th Respondent in constructing on the land awarded to him (1st Respondent) by the previous decision of the Court in which only the 2nd Respondent was a party, the other Respondents, being the Governor of Borno State, the Commissioner of Works and Transport Borno State and the Hon. Attorney General of Borno State, are all privies of the Commissioner of Land & Survey (2nd Respondent), who had been perpetually restrained from carrying out any further acts on the land in question. The Constitution says they are all part of the Government of the State and they exercise powers on behalf of the State. Thus, that makes them privies of each other.

By the same token, the Appellant also was a privy of the 4th Respondent who engaged him in the construction on the land, which he refused to stop even after having been notified of the valid and subsisting judgment of a competent Court of law awarding the land to the 1st Respondent. Therefore, I am of the view that the Appellant, as well as the 2nd – 5th Respondents, are agents and privies of the 3rd Respondent and therefore bound by the said Judgment of the Court.

On whether the subject matter and the issues in both suits are the same, I have examined the claim in the Writ of Summons in the previous case, BOHC/KDG/CV/13/2017 and the claim and reliefs in the Originating Summons in the instant case, BOHC/KDG/CV/10/2018. The claims in the previous suit filed by the 1st Respondent (as Claimant) against the 3rd Respondent, Commissioner of Land & Survey (and another party not included in this action), was for a declaration of title to land, among other consequential reliefs. The claim in this suit has been set out earlier in the body of this Judgment. It seeks the interpretation of Sections 176, 192, 193 and 308 of the Constitution (supra) vis-à-vis the Judgment of the Court in Suit No. BOHC/KDG/CV/13/2017. The necessity for the present action, as stated in the affidavit in support of the claim brought by way of an Originating Summons, was the undisputed fact that the 4th Respondent (Commissioner of Works & Transport) commenced construction (through the Appellant) on the land awarded by the Court to the 1st Respondent. When the 1st Respondent wrote to the 4th Respondent drawing his attention to the previous Judgment of the Court, the 5th Respondent (Hon. Attorney General) wrote back to the 1st Respondent/Claimant and stated that the 4th Respondent, not being a party to the previous proceedings, was not bound by the Court’s decision. It is basically these facts that gave rise to the instant suit.

Based on the above, I agree with the learned trial Judge that the subject matter of the two cases is not the same, neither are the issues and reliefs. Consequently, the lower Court was right when he found that the conditions for the application of the doctrine of res judicata were not met. For, whereas, the parties were the same, and the judgment was a final decision issued from a competent Court of law, the subject matter and issues were not the same.

The second issue for determination canvassed by the Appellant is that the claim in the Originating Summons does not disclose any cause of action against the Appellant. It is apparent that the Appellant was initially not a party to the suit at its inception. He was subsequently joined after the 1st Respondent discovered that he was involved in the ongoing construction on the land and he refused to stop even after the 1st Respondent, through his Solicitor, had informed him vide a letter that there was a Judgment of Court, which had been affirmed by the Court of Appeal, awarding the land to him (1st Respondent) – Exhibit AUIA 2 (page 143 of the record).

When the Amended Originating Summons was served on the Appellant, it (Appellant) responded via a counter-affidavit dated 18-12-19 through one of its Directors, Baba Gana Shettima Muste (pages 121-122 of the record). Therein, the facts contained in the supporting affidavit were denied. His defence to the claim was basically res judicata, that the case had been adjudicated upon and that the Judgment was already on appeal. Thereafter, the 1st Respondent/Claimant, in paragraph 3(v) & (vi) of the Further Affidavit to the Appellant’s Counter affidavit, responded as follows –
“(v) That despite the judgment of this Court and that of the Court of Appeal which is in favour of the Claimant the 5th Defendant are still making heavy construction on the Claimant land and the judgment of this Court and that of the Court of Appeal has been served on the 5th Defendant’s office.
“(vi) That on 22nd February, 2019 one Hamza Waziri Modu a staff of 5th Defendant acknowledged and received Claimant’s Counsel’s letter addressing (sic) to the management of the 5th Defendant. The letter dated 21st February, 2019 annexed and marked as Exhibit AUI A2.”

From the affidavits of the 1st Respondent/Claimant therefore, a proper cause of action was disclosed against the Appellant, which explains why he denied the claim and fought it to Judgment. I therefore endorse the finding of the lower Court on this.

In respect of the third issue for determination which challenges the order granting a perpetual injunction and awarding damages to the 1st Respondent, without much ado, I agree with Counsel for 1st Respondent that they are in the nature of consequential orders which a Court of law is entitled to make to meet the justice of the case. The apex Court and this Court have, in a plethora of decisions, held that a consequential order is an order that gives effect and meaning to a judgment already given. It is designed to do justice between the parties – Noekoer V Executive Gov. Plateau State (2018) LPELR-44350(SC) 41-42, C. per Peter-Odili, JSC, Awoniyi V Regd Trustees of the Rosicrucian Order, AMORC (Nig) (2000) LPELR-655(SC) 20-21, F-B, per Karibi-Whyte, JSC.

In the instant case, the 1st Respondent actually sought for those orders and the award in his reliefs. They were rightly granted by the lower Court, the Defendants to the claim having not denied the facts in the supporting affidavit and further affidavits that they indeed entered onto his land and were constructing on it. Their only defence was that they were not bound by the judgment of the lower Court in an earlier suit awarding the land to the 1st Respondent, and that the matter was on appeal.

On whether it was right for the 1st Respondent to have commenced the suit vide an affidavit, I agree completely with the learned trial Judge that the mode of initiating the action was right and proper. This is because, as aforesaid, facts were not in dispute. There was a previous judgment of the lower Court between the 1st Respondent and the 2nd – 5th Respondents in favour of the 1st Appellant, wherein the Court had granted declarations inter alia that vested ownership of the land in dispute in the 1st Respondent. This decision has since been confirmed by the Court of Appeal.
The 1st Respondent’s recourse to the lower Court in the instant suit was directly as a result of the letter by the 5th Respondent (Hon. Attorney General) to him stating that the 4th Respondent, (Ministry of Works & Transport Borno State), was not bound by the previous decision of the Court to which the 3rd Respondent, (Ministry of Land & Survey Borno State), was a party. The 1st Respondent therefore approached the lower Court for the interpretation of Sections 176, 192 and 193 of the Constitution (supra) on whether the judgment of the lower Court was indeed binding on agents, privies, etc., of the 3rd Respondent, which included the 2nd, 4th and 4th Respondents.
Thus, the questions on the face of the Originating Summons sought for the interpretation of Constitutional provisions vis-a-vis the judgment of the lower Court in the previous action, Suit No. BOHC/KDG/CV/13/2017. Facts were certainly not in dispute and so the action was not contentious. The procedure ensures a quick disposal of a suit which requires some urgency. However, where the proceedings are hostile, the Originating Summons procedure should not be used –Titilayo Plastic Inds. Ltd V Fagbola (2019) LPELR-47606(SC) 52054, C, per Peter-Odili, JSC, Jev V Iyortyom (2014) LPELR-23000(SC) 46, D-E, per Okoro, JSC, Elelu-Habeeb V AG Federation (2012) LPELR-15515(SC) 116-117, B-E, per Adekeye, JSC.
In the case of Inakoju V Adeleke (2007) LPELR-1510(SC) 28-30, D-C, per Tobi, JSC held –
“Commencement of action by originating is a procedure which is used in cases where facts are not in dispute or there is no likelihood of their being in dispute. Originating summons is also reserved for issues like the determination of questions of construction and not matters of such controversy that the justice of the case could demand the setting of pleadings… In Famfa Oil Limited V Attorney General of the Federation (2003) 18 NWLR (Pt. 852) 453, Belgore, JSC (as he then was), said at page 467:
“The very nature of an Originating Summons is to make things simpler for hearing. It is available to any person claiming interest under a deed, will or other written instrument whereby he will apply by Originating Summons for the determination of any question of construction arising under the instrument for a declaration of interest… It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the pleadings of the parties to the suit. In such a situation, there is no serious dispute as to facts but what the plaintiff is claiming is the declaration of his rights.”
Where facts are in dispute or riotously so, an Originating Summons procedure will not avail a plaintiff who must come by way of Writ of Summons… In other words, an originating summons will not lie in favour of a plaintiff where the proceedings are hostile in the sense of violent dispute. In originating summons, facts do not have a pride of place in the proceedings. The cynosure is the applicable law and its construction by the Court.”

Finally, before I conclude, it is pertinent to clarify that it is not in doubt that, by the provisions of the Land Use Act, 1978, all land is vested in the Government. However, by that same law, there are conditions that must be met before Government can take away land belonging to a citizen from him or compulsorily acquire land for public use. In the instant case, the land in question was litigated upon in Suit No. BOHC/KDG/CV/13/2017 between the 1st Respondent (as Claimant) and (1) Shettima Mohammed Shettima and (2) Commissioner for Land & Survey Borno State (as 1st and 2nd Defendants). At the close of trial, the land was awarded to the 1st Respondent. The matter went on Appeal to the Court of Appeal, in Appeal No. CA/J/197/2018, and the decision was affirmed. The Defendants have purportedly proceeded on appeal against the decision of the Court of Appeal to the Supreme Court. However, there is no order for stay of execution against the decision of the two Courts.

In view of these facts, for the Commissioner of Works and Transport (4th Respondent herein) to proceed to engage the Appellant (Caraway Ventures Integrated Nig. Ltd) to commence construction on the property of the 1st Respondent and then, in an attempt to extricate himself from responsibility, defend his action by claiming that he was not expressly a party to the previous suit, smacks of impunity. This defence was only an attempt by the 4th Respondent, as well as the 2nd, 3rd and 5th Respondents, to avoid obeying the subsisting order of Court in suit No. BOHC/KDG/CV/13/2017, which decision had been affirmed on appeal. For the avoidance of doubt, both the Commissioner of Land & Survey Borno State (3rd respondent) and the Commissioner of Works &Transport Borno State (4th respondent), as well as the Hon. Attorney General Borno State (5th respondent), are part of the Government of Borno State, of which the Governor (2nd respondent) is the head/Chief Executive. They are therefore agents and/or privies of the Borno State Government.

Courts have a duty to protect vested rights, as otherwise lawlessness will reign. So, they have always taken the view that any attempt by a competent authority to take away a citizen’s vested rights must be done in strict compliance with the law and any laid down procedure therefore.
As Lord Macnaghten put it in the case of Mayor, etc., of Westminster V London & North Western Railway Coy. (1905) AC 426, 430:
“… a public body invested with statutory power must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably.”
See Oyeyemi V Comm. LG Kwara State (1992) LPELR-2882(SC) 24-25, D-B, per Nnamaeka-Agu, JSC, Ojo V Gov., Oyo State (1989) 1 NWLR (Pt. 5) 1, Wilson V AG Bendel State (1985) 1 NWLR (Pt. 4) 1, Hart V Mil. Gov. Rivers State (1976) 2 FNLR 215.

Based on all the above findings, I resolve all three issues for determination against the Appellant and in favour of the 1st Respondent.

Consequently, the appeal is lacking in merit. It fails and is dismissed.

Accordingly, I affirm the judgment of the High Court of Justice, Borno State in Suit No. BOHC/KDG/CV/10/2018 delivered on 15th October, 2019, Coram: M.S. Umara, J.

I award the cost of this action assessed at N200,000.00 to be paid by the Appellant to the 1st Respondent.

IBRAHIM SHATA BDLIYA, J.C.A.: I read before now the leading judgment just delivered by my learned brother, JUMMAI HANNATU SANKEY, JCA. I agree with the reasoning and conclusion of my learned brother.

I also dismiss the appeal. I uphold the judgment of the Borno State High Court of Justice, in suit no: BOHC/KDG/CV/10/2018, delivered on 15th October, 2019. I abide by the order as to cost.

EBIOWEI TOBI, J.C.A.: The judgment just delivered by my learned brother, Jummai Hannatu Sankey, JCA, I heard the privilege to read in draft. My lord has adequately resolved the issue involved in this case, I therefore agree with the reasoning and the conclusion. I will just add by looking at the issue of the Appellant’s complaint that there is no cause of action against him.

A cause of action is defined as the factual situation that determines the rights and liabilities before the Court. It is different from a right of action. A right of action precedes a cause of action. There is no cause of action without a right of action. See Oko vs A.G. Ebonyi State (2021) 14 NWLR (pt 1795) 63. The cause of action is referred to the dispute between the parties upon which the Court will have to determine the rights and liabilities between the parties. In defining what constitute a cause of action, the Supreme Court held in A. G. Federation vs A.G. of Abia State &Ors (2001) LPELR- 24862 (SC) thus:
“A cause of action has been defined to mean the fact or facts which establishes or gives rise to a right of action and that it is the factual situation which gives a person the right to judicial relief. (See Egbe v. Adefarasin ​(1987) 1 NWLR (Part 47) 1). It is sufficient for a Court to hold that a cause of action is reasonable once the Statement of Claim in a case discloses some cause of action or some questions fit to be decided by a Judge notwithstanding that the case is weak or not likely to succeed. The fact that the cause of action is weak or unlikely to succeed is no ground to strike it out.
(See Moore v. Lawson, 31 TLR 418 CA; Wenlock v. Moloney, (1965) WLR 1238 and Irene Thomas & others v. Olufosoye (1986) 1 NWLR (Part 18) 669).”
At the risk of space but for emphasis sake one more case will not hurt anyone. This is the case of CIL Risking & Asset Management Ltd vs Ekiti State Govt & Ors (2020) LPELR-49565 (SC) where Eko, JSC held:
“A cause of action simply means the fact (not evidence) that will be necessary for the plaintiff to prove, if traversed, to support his right to judgment: THE SUPREME COURT PRACTICE (THE WHITE BOOK – English) 1991, vol. 1, pages 172 – 173 paragraph 15/1/23: states that “A cause of action” was held to mean “the subject-matter of grievance founding the action”: O’KEEFE V. WALSH (1903) 2, Ir. R.681 at 718, ANNS V. MERTON LONDON BOROUGH COUNCIL (1978) 2 ALL E.R. 492. In other words, it is the reason for the grievance and the complaint to the Court for redress. It includes every material fact the plaintiff must, or shall, prove to enable him succeed against the defendant: AFOLAYAN V. OGUNRINDE & ORS {1990) 2 SCNJ 62 at 70.
In other words, as Obaseki, JSC had put it, in THOMAS V. OLUFOSOYE (1986) 1 NWLR (pt. 18) 669, the cause of action is the factual situation, the existence of which entitles one to obtain from the Court a remedy against another person. See also Lord Esher, M. R in READ V. BROWN (1998) 2 QBD 128 at 131 & 151 – cited with approval by this Court in SPDC OF NIG LTD V. XM (2005) 7 SC (pt. 2) 189; (2006) 16 NWLR (pt. 1004) 27.
For so long as the Statement of Claim discloses the cause the plaintiff has to complain to the Court against the defendant for violation, infraction or imposition of undue burden on his legal rights or obligations, or raises some question fit to be decided by the Court or the Judge: a reasonable cause is disclosed thereby. See YUSUF & ORS V. AKINDIPE & ORS (2000) 8 NWLR (pt. 669) 376 (SC). In my view, a reasonable cause of action is disclosed once the Statement of Claim sets out the plaintiff’s legal right qua the defendant’s obligations towards him, and goes further to set out the facts constituting the infraction of the plaintiffs’ legal rights or failure of the defendant to fulfill his obligations towards the plaintiff.
RINCO CONSTRUCTION CO LTD V. VEEPEE IND. LTD & ANOR (2005) 9 NWLR (pt. 929). Once the Statement of Claim discloses a reasonable chance that the plaintiff will succeed, if not traversed, on his allegations as pleaded; a reasonable cause of action will be said to have been disclosed. That is the substance of the English decision in DRUMMOND-JACOKSON V. BRITISH MEDICAL ASSOCIATION (1970) 1 WLR 688; (1970) 1 ALL E. R. 1094 (CA) cited with approval in THOMAS & ORS V. OLUFOSOYE (supra). It is not material at this stage whether the case of the plaintiff is strong or weak. The only thing important at this stage is whether the Court can decipher from the Statement of Claim if there is either a prima facie triable case or issue or there is a reasonable chance of success if no defence were offered.”

The Appellant was joined in the suit and rightly so because he was the person carrying out the construction on the land who refused to stop despite been asked to do so. The Appellant was a privy to the 3rd Respondent, the lower Court was right in holding that there is a cause of action against him. See Adalma Tankers Bunkering Services Ltd & Anor v. CBN &Ors (2022) LPELR- 57036(SC).

In the circumstance, I have no difficulty like my learned brother, Jummai Hannatu Sankey, JCA in the leading judgment to dismiss this appeal for lacking in merit. It is dismissed while affirming the judgment of M. S. Umara J. of the Borno State High Court in suit no: BOHC/KDG/CV/10/2018 delivered on 15/10/2019.

Appearances:

Usamatu Abubakar, Esq, with him, Celestina Yauta, Esq., holding the brief of A.S. Zanna, Esq, For Appellant(s)

A.R. Abdulsalam, Esq, appears for 1st Respondent.

H.Y. Gana, Esq, DCR Borno State Ministry of Justice, with him, F.U. Kida Esq, and H. Umar, Esq, for 2nd, 3rd, 4th and 5th Respondents. For Respondent(s)