CHIEF SAMPSON AKPAN MKPEDHM v. THE GOVERNOR OF AKWA IBOM STATE & Ors
(2010)LCN/3857(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 8th day of June, 2010
CA/C/80/2006
RATIO
EVIDENCE: ESTOPPEL; CONDITIONS FOR ISSUE ESTOPPEL TO OPERATE
For issue estoppel to operate, the parties and the subject matter in an earlier civil proceeding must be the same as in the later civil proceeding on the same principle of estoppel per rem judicatam. See SAMUEL FADIORA & ANOR v FESTUS GBADEBO & ANOR (1978) 3 SC 219 at 228 – 229 per Idigbe JSC where he stated the law as follows:
“… once it appears that the same cause of action was held to lie (or not to lie) in a final judgment between the same parties, who are litigating in the same capacity (and on the same subject matter), there is an end of the matter. They are precluded from re-litigating the same cause of action. There is however, a second kind of estoppel inter parties and this usually occurs when an issue had earlier been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in these circumstances, issue estoppel/arises. This is based on the principle of law that a party is not allowed to (i.e. he is precluded from) contending the contrary or opposite of any specific point which having been once specifically put in issue, has with certainty and solemnity been determined against him…………………………….. However, for the principle to apply in any given proceedings all the preconditions to a valid plea of estoppel/inter parties or per rem judicatam must apply.” PER KUMAI BAYANG AKAAHS, J.C.A.
ACTION: REQUIREMENT FOR SETTING ASIDE JUDGMENT OBTAINED BY FRAUD
In an action to set aside a judgment obtained by fraud, the judgment complained of must be a direct consequence of fraud, otherwise no basis or ground exist for setting it aside. See: OLUFINMISE v. FALANA (1990) 3 NWLR (pt.136) 1, ANATOGU v. IWEKA II (1995) 8 NWLR (pt.415) 547; AROWOLA v. IFABIYI (2002) 4 NWLR (pt.757) 356. PER KUMAI BAYANG AKAAHS, J.C.A.
LIMITATION LAW: SITUATION WHERE STATUTE OF LIMITATION WILL NOT APPLY TO A MATTER
In AROWOLA v. IFABIYI (2002) 4 NWLR (pt.757) 356 supra Iguh, JSC, held that the Statute of Limitation does not apply in cases of concealed fraud so long as the party defrauded remains in ignorance of the fraud without any fault of his own. He explained the rationale behind this proposition of law which was laid down by Lord James Hereford in the Privy Council case of BULLI COAL MINING CO. v. PATRICK HILL OSBORNE & ANOR (1999) A.C. 351 at 363 (P.C) thus:
“Now it has always been a principle of equity that no length of time is a bar to relief in the case of fraud, in the absence of laches on the part of the person defrauded. There is therefore no room for the application of the Statute (of Limitation) in the case of concealed fraud, so long as the party defrauded remains in ignorance without any fault of his own.” PER KUMAI BAYANG AKAAHS, J.C.A.
JUSTICES
KUHAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
JA’AFARU MIKAILU Justice of The Court of Appeal of Nigeria
NWALI S. NGWUTA Justice of The Court of Appeal of Nigeria
Between
CHIEF SAMPSON AKPAN MKPEDHM Appellant(s)
AND
1. THE GOVERNOR OF AKWA IBOM STATE
2. THE ATT-GEN. OF AKWA IBOM STATE
3. THE IKONO TRADITIONAL RULERS COUNCIL
4. THE COMMISSIONER FOR LOCAL GOVT & CHIEFTAINCY AFFAIRS
5. SUNDAY OTUNGUDO Respondent(s)
KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment): The Plaintiff now Appellant commenced the action in Suit No. HKN/6/2005 at the Ikono Judicial Division of the High Court of Akwa Ibom State by writ of summons filed on 21/2/2005. The claims of the appellant against the respondents were as follows:
“(a) A declaration that the Traditional Rulers (withdrawal of recognition from Chief Sampson Akpan Mkpedem) order 1995 dated 3rd October, 1995 being obtained by fraud, deceit and misrepresentation is null and void and of no effect whatever.
(a) A declaration that Chief Sampson Akpan Mkpedem the plaintiff was wrongfully removed from office as the Village Head of Nkara Obio village by fraud, deceit and misrepresentation.
(c) An order setting aside the said Traditional Rulers (withdrawal of Recognition from Chief Sampson Mkpedem) order, 1995 dated 3rd October 1995.
(d) An order restoring the said Chief Sampson Akpan Mkpedem to the position of Village Head of Nkara Obio village in Ndiya in Ikono Local Government Area.
(e) An order consequently removing and/or deposing Chief Sunday Otung Udo as the Village Head of Nkara Obio village and canceling the certificate of recognition as village head of Nkara Obio in Ndiya Clan in Ikono Local Government Area wrongly issued to Sunday Otung Udo, the 5th Defendant.
(f) An order of the court directing that the plaintiff Chief Sampson Akpan Mkpedem be paid the arrears of his stipends due with effect from 3rd October, 1995 to the date of restoration as the village head of Nkara Obio Village, Ndiya Clan, Ikono Local Government Area, Akwa Ibom State.”
Upon service of the said Writ of Summons all the defendants entered appearance by their counsel who filed memorandum of appearance on their behalf. On 4/4/2005, the plaintiff filed his statement of claim which was served on all the defendants. The 1st, 2nd and 4th defendants filed a joint statement of defence on 4/5/2005. The Statement of Defence is dated 20/4/2005 (See pages 38-40 of records). On 7/6/2005 a motion dated 3/6/2005 on behalf of 3rd Defendant praying for an order was filed
“dismissing plaintiff’s Suit No. HKN/6/2005 as it constitutes a serious abuse of court’s process in that plaintiff has commenced in 1997 Suit No. HT/20/97 with the similar reliefs against the defendants and same were dismissed.”
The application was supported by an affidavit of 15 paragraphs to which were annexed several Exhibits namely the Statement of Claim in Suit No. HT/20/97 marked Exh. ‘A’, Motion to dismiss Suit HT/20/97 for being statute barred marked Exh. ‘C’, Notice of Appeal against decision in Suit No. HT/20/97 marked Exh. ‘D’ and judgment in Appeal No. CA/C/90/99 marked Exh. ‘E’ which affirmed the lower court’s decision in HT/20/97 and Statement of Claim in Suit No HKN/6/2005 marked Exhibit ‘F’.
The motion was opposed by the Plaintiff who filed a 15 paragraph affidavit in opposition and annexed the Amended Statement of Claim marked Exh. ‘A’.
The motion was argued and in a reserved ruling delivered on 20/2/2006 the learned trial Judge observed as follows at page 158 of the records:
“I cannot explain what informed the plaintiff that an action that was time barred in 1997 would cease to be time barred in 2005.”
He thereafter held that the attempt by the plaintiff to re-litigate the matter is an abuse of the court’s process and ordered that Suit No. HKN/6/2005 be struck out. It is against this decision that the appellant appealed on three grounds of appeal contained in his Notice of Appeal dated 6/3/2006 which was later amended by a motion dated 20/10/2006 in which an additional ground was added. The appellant formulated the following four issues for determination:-
1. Whether the 3rd defendant/respondent’s motion dated 3rd of June, 2005 was competent in raising the plea of estoppel per rem judicatam when no statement of defence with the said plea raised therein was filed (GROUND ONE).
2. Whether the Limitation Law as contained in the Public Officers Protection Law Cap. 140 Laws of Akwa Ibom State 2000 can apply to remove the cause of action in Suit HKN/6/2005 whose basis and foundation is fraud specifically pleaded (GROUND TWO).
3. Whether the learned trial Judge misdirected himself in and misunderstood the case of the plaintiff/appellant by regarding the specifically pleaded deceit and misrepresentation as mere element of crime in this civil case (GROUND THREE).
4. Whether the principles of estoppel were established and correctly applied in the circumstances of this case.
Learned Counsel for 1st, 2nd and 4th Respondents also identified four issues for determination which are:-
1. Whether the 3rd defendant/respondent motion dated 3rd June, 2005 and filed on the 7th of June, 2005 amounted to a demurrer and therefore incompetent under Order 24 Rule 1 of the High Court (Civil Procedure) Rules, Cap 55 Vol. 3, Laws of Akwa Ibom State 2000 (GROUND 1.)
2. Whether the subject matter in Suit No. HU/6/2005 is caught up by the Public Officer Protection Law Cap 140, Laws of Akwa Ibom State, 2000 (GROUND 2).
3. Whether the trial court adopted the correct procedure in its consideration of the motion of the 3rd defendant/respondent dated 3rd June, 2005 and filed on 7th June, 2005 which challenged its jurisdiction to hear the matter as it was an abuse of court process in that Suit No.HU/6/2006 (Present Suit) was same as suit HT/20/97 which was dismissed (GROUND 3)
4. Whether the plea of estoppel per rem judicatam was raised in the 3rd defendant/respondent’s motion of 3rd June, 2005.
The 3rd Respondent did not file any brief while the 5th Respondent was reported dead. An oral application to delete his name from the appeal was granted on 7/7/09, the same date the Appellant’s reply brief was deemed filed and the motion to hear the appeal without the brief of 3rd Respondent was also granted.
On issue 1, Sir Nfon Inam, learned counsel for the Appellant submitted that the motion of 3rd June, 2005 was incompetent and should have been struck out since the procedure adopted was by way of demurrer which has been abolished by order 24 Rule 1 High Court (Civil Procedure) Rules of Akwa Ibom State 1989 and the only way a point of law can be validly raised it to do so in the pleadings. Learned counsel disagreed that the issue raised in the motion was that of jurisdiction. Mrs. Ibanga, learned counsel for the 1st, 2nd and 4th Respondents on the other hand maintained that the issue raised in the motion of 3/6/2005 was that of jurisdiction and no Statement of Defence was required to be filed before the motion could be maintained. Learned counsel for the appellant asserted in the reply brief that the issue raised in the motion was not an issue of jurisdiction simpliciter but was more complicated than that which required filing of pleadings.
On Issue 2, learned counsel referred to the Amended Statement of claim where the plaintiff specifically pleaded fraud, deceit and misrepresentation as contrived and concealed by the 3rd to 5th defendants and also the use of the said fraud, deceit and misrepresentation to secure from the 1st and 2nd defendants to order withdrawing the recongnition of the appellant as the village head of Nkara Obio Village. He said that the 3rd – 5th defendants also concealed the order from the plaintiff until his counsel applied in January, 2003 and was given a certified true copy. He submitted that there is no room for the application of the statute of limitation in the case of concealed fraud so long as the party defrauded remains in ignorance without any fault of his own and relied on AROWOLO v. IFABIYI (2002) FWLR (pt.95) 296. He also asserted relying on OLUFUNMISE v. FALANA (1990) 3 NWLR (pt.136) in that other reliefs that would flow from the order of nullification as pleaded in paragraph 17 of the Amended Statement of Claim could competently be claimed along with it. Learned counsel agreed that suit HKN/6/2005 is no doubt a civil suit like the one in Suit HT/20/97 but unlike it, Suit HKN/6/2005 is based completely on the issues of fraud, deceit and misrepresentation of the defendants. He submitted that in HT/20/97 there was no allegation of fraud and that the learned trial judge did not appreciate the nature of the case that was before him when he concluded that the plaintiff/appellant in HKN/6/2005 merely substituted “fraud” for “forgery” that was used in HT/20/97 and this has led to a miscarriage of justice.
Learned counsel for the 1st, 2nd and 4th respondents is in agreement with appellant’s submission that a judgment which has been obtained by fraud either on the court or one of the parties can be impeached or set aside by means of an action which can be brought without leave but argued that where a party bring, such an action, the position of the law is that it is only fraud and that fraud alone that should be put in issue as decided in ANATOGU v IWEKA II (1995) 8 NWLR (PC. 415) 547. Learned counsel pointed out that apart from the reliefs 1 & 2 of paragraph 17, reliefs 4, 5 and 6 do not deal with any fraud. He therefore disagreed with the argument that the basis or foundation of Suit HKN/6/2005 was fraud and consequently the Statute of Limitation will apply to disbar the claim.
On issue 4, learned counsel for the appellant dealt with principles on estoppel and submitted that since Suit No HT/20/97 was not decided on merit, the issues and the cause of action remained untried and that suit cannot be relied upon as estoppel to Suit No. HKN/6/2005.
The pith and marrow of this appeal is centered on whether the application by the 3rd Defendant praying for an order dismissing Plaintiff’s Suit No. HKN/6/2005 was a challenge on jurisdiction of the court to entertain the suit or it was a demurrer proceedings which have been abolished by Order 24 Rule 1 High Court (Civil Procedure Rules of Akwa Ibom State 1989. The arguments of learned counsel is that Suit No. HKN/6/2005 relates to fraud which the plaintiff just discovered whereas Suit No. HT/20/97 sought for declaratory reliefs and damages for libel.
A critical analysis of the pleadings in the two suits reveals that the issue of fraud or the use of forged papers was central in withdrawing the recognition of the appellant as the Village Head of Nkara Obio. The appellant was fully conscious of it when he instituted Suit No. KT/20/97. If there is any difference at all, it only relates to details as pleaded in paragraphs 11, 12, 13, 15, 16 and 16(a) of the Statement of Claim in Suit HKN/6/2005. Similar allegations were made in paragraphs 7, 8, 9, 10, 11, 12 and 13 of the Statement of Claim in Suit No. HT/20/97. If the alleged facts of the fraud or forgery came to light after the institution of Suit HT/20/97 the Respondents in this appeal will fail in raising issue estoppel in Suit HKN/6/2005.
For issue estoppel to operate, the parties and the subject matter in an earlier civil proceeding must be the same as in the later civil proceeding on the same principle of estoppel per rem judicatam. See SAMUEL FADIORA & ANOR v FESTUS GBADEBO & ANOR (1978) 3 SC 219 at 228 – 229 per Idigbe JSC where he stated the law as follows:
“… once it appears that the same cause of action was held to lie (or not to lie) in a final judgment between the same parties, who are litigating in the same capacity (and on the same subject matter), there is an end of the matter. They are precluded from re-litigating the same cause of action. There is however, a second kind of estoppel inter parties and this usually occurs when an issue had earlier been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in these circumstances, issue estoppel/arises. This is based on the principle of law that a party is not allowed to (i.e. he is precluded from) contending the contrary or opposite of any specific point which having been once specifically put in issue, has with certainty and solemnity been determined against him…………………………….. However, for the principle to apply in any given proceedings all the preconditions to a valid plea of estoppel/inter parties or per rem judicatam must apply.”
I think it is erroneous on the part of appellant’s counsel to think he could have a second bite at the cherry by dropping the claim for damages for libel and concentrating on the issue of fraud in the subsequent proceedings and hope to succeed this time around that it is the order dated 3rd October 1995 against the interest of the appellant which was concealed until a certified copy was obtained on application by appellant’s counsel through a letter dated 1st January, 2003. It is obvious from paragraph 11 of the Statement of Claim in Suit HT/20/97 that the forged record the appellant alluded to was the records of proceedings of adjudication of the Ikono Traditional Rulers Council. A party must take immediate steps after becoming aware that decision was based on forged information to set aside that decision. In an action to set aside a judgment obtained by fraud, the judgment complained of must be a direct consequence of fraud, otherwise no basis or ground exist for setting it aside. See: OLUFINMISE v. FALANA (1990) 3 NWLR (pt.136) 1, ANATOGU v. IWEKA II (1995) 8 NWLR (pt.415) 547; AROWOLA v. IFABIYI (2002) 4 NWLR (pt.757) 356. In AROWOLA v. IFABIYI (2002) 4 NWLR (pt.757) 356 supra Iguh, JSC, held that the Statute of Limitation does not apply in cases of concealed fraud so long as the party defrauded remains in ignorance of the fraud without any fault of his own. He explained the rationale behind this proposition of law which was laid down by Lord James Hereford in the Privy Council case of BULLI COAL MINING CO. v. PATRICK HILL OSBORNE & ANOR (1999) A.C. 351 at 363 (P.C) thus:
“Now it has always been a principle of equity that no length of time is a bar to relief in the case of fraud, in the absence of laches on the part of the person defrauded. There is therefore no room for the application of the Statute (of Limitation) in the case of concealed fraud, so long as the party defrauded remains in ignorance without any fault of his own.”
For the appellant to enjoy the benefit of this equitable principle, the claim in Suit HT/20/97 should have been to set aside the decision withdrawing the recognition of the appellant as the village head of Nkara Obio since it was taken on the forged information that was placed before the Ikono Traditional Rulers Council and not combine it with the claim for damages for libel. Since the appellant’s claim in Suit HT/20/97 was dismissed as being statute barred which decision was affirmed by this court in Appeal No. CA/C/90/99 and there was no further appeal to the Supreme Court; Suit No. HKN/6/2005 cannot be entertained on the same issue of fraud. The estoppel per rem judicatam subsists. It was an abuse of court process to commence Suit HKN/6/2005 after Suit HT/20/97 was affirmed on appeal. The objection raised went to jurisdiction and was not a procedure of demurrer. It was properly raised without the filing of pleadings.
The appeal lacks merit and it is accordingly dismissed. No order on costs is made.
JA’AFARU MIKA’ILU, J.C.A.: Having read in draft the lead Judgment of my learned brother Kumai Bayang Akaahs JCA, I agree with the same. Therefore the appeal lacks merit and therefore it is dismissed. I award no costs.
NWALI SYLVESTER NGWUTA, J.C.A.: I read in draft the lead judgment just delivered by my learned brother Akaahs, JCA. I agree that it was an abuse of judicial process to institute suit No. HKN/6/2005 after suit No. HT/20/97 had been affirmed in appeal.
I also dismiss the appeal and make no order on costs.
Appearances
Sir Mfon InamFor Appellant
AND
F.J. Ibanga, ADCL, Akwa Ibom StateFor Respondent
