DORE & ORS v. FEDERAL SUPERPHOSPHATE FERTILIZER CO. LTD & ORS (2020)

DORE & ORS v. FEDERAL SUPERPHOSPHATE FERTILIZER CO. LTD & ORS

(2020)LCN/14604(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Monday, September 14, 2020

CA/K/137/2017

RATIO

PLEADINGS: COURTS OF CO-ORDINATE JURISDICTION.

Therte is no doubt that the lower Court and the Federal High Court are Courts of Co-ordinate jurisdiction. See Titilayo Cole Vs Adim Jibunoh & 2 Ors (2016) 1 SCNJ 93 at 114. The Federal High Court had in suit No. FHC/KD/CS/05/2009 having ruled that the suit was abuse of Court process and statute barred against the 2nd Respondent herein. The Court, being of coordinate jurisdiction, rightly struck out the case predicated on substantially the same subject matter and same parties as incompetent by holding thus:

“I am of he opinion that the decision of the Court delivered on 4/03/2011 is still binding on the parties, and where any party is aggrieved that party can file. an appeal to the Court of Appeal.
The foregoing decision is in consonance with settled position of the law that a Court of co-ordinate jurisdiction has no power to sit as an appellate Court and review and/or adjudicate on a decision or order made by another Court of the same hierarchy. See Chief Gani Fawehinmi Vs Attorney General Lagos State No. 1 (1989) 3 NWLR (PT. 112), 707 at 774. The Appellants’ act in bringing about a fresh action involving the same parties and the same subject matter before the lower Court is caught up by the plea of estoppel per rem judicata and same was rightly dismissed by the lower Court. The remedy open for the Appellants after the decision of the Federal High Court in Suit No. FHC/KD/CS/05/2009 was to appeal against that decision. It was wrong for the Appellants to re-litigate the same matter between the same or substantially the same parties. See Alhaji Madi. Mohammed Abubakar Vs Bebeji Oil and Allied Products Ltd & 2 Ors (2007) 2 SCNJ 170 at 202. and Titilayo Cole Vs Adim Jibunoh & 2 Ors.Where a Court of competent jurisdiction has finally settled a matter in dispute between parties, neither party or privy may re-litigate that issue under the guise a fresh action. The general principle of the law is that it is the nature of the order made in a decision that determines whether it is interlocutory or final. Consequently, each case has to be determined on its own peculiarities and within the context and confines of the facts disclosed therein.
An interlocutory decision has been defined in plethora of judicial authorities to mean one in which the order therein did not finally depose of the rights of the parties in the case in which it was made. See Afuwape v. Shodipe (1957) 2 FSC 12; (1957) SCNLR 265: Ude v. Agu (1961) All NLR 65;Omonuwa v. Oshodin (1985) 2 NWLR (Pt. 10) 924 at 936, 938. The scope of a final decision, on the other hand, has been aptly captured by the vastly erudite Jurist Karibi Whyte, J.S.C. in the case of theOmonuwa v. Oshodin thus:
“All the cases cited agree on the proposition that a decision between the parties can only be regarded as final when the determination of the Court disposes of the rights of the parties (and not merely an issue) in the case. Where only an issue is the subject matter of an order or appeal the determination of that Court which is a final decision on the issue or issues before it which does not finally determine the rights of the parties, is in my respectful opinion interlocutory.” Per HUSSEIN MUKHTAR, J.C.A.

Before Our Lordships:

Hussein Mukhtar Justice of the Court of Appeal

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

KELLY DORE 2. ELDER OKON EDOHO 3. SAMUEL INETIENBOR 5. LUKA DAGA 6. YUSUF MOHAMMED 7. THOMAS JARO 8. UMARU GARBA 9. ISHAYA MODECAI 10. LUKA YASHIM 11. TANIMU WUYAH (For Themselves And On Behalf Of All The Under-Paid Retrenched Staffers Of Federal Superphosphate Fertilizer Company Limited [Now Privatized]). APPELANT(S)

And

FEDERAL SUPERPHOSPHATE FERTILIZER COMPANY LIMITED (PRIVATIZED) 2. BUREAU OF PUBLIC ENTERPRISES (BPE) 3. HEKIO CONSORTIUM RESPONDENT(S)

HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment):This appeal is against the decision of the National Industrial Court, sitting in Kano delivered on 17th March 2016 in Suit No: NICN/KN/36/2014.

The National Council on Privatization (NPC) represented by the 2nd Respondent (the Bureau of Public Enterprise – BPE) had, in 2005, privatized the 1st Respondent by the sale of 90% of its shares to the 3rd Respondent – Herkio Consortium, while the remaining 10% share of FSFC was for the then existing employees of the “enterprise to be privatised”. These were not realised by BPE which handled the retrenchment of staff, payments and the 10% shares for the workers.

The sum of N73 million “retirement” under payments which the Nigerian Senate ordered BPE to pay the Appellants but which BPE has not paid and the FSFC privatization are issues raised in the instant case.

The learned trial Judge, however, held that Claimants’ case is not only statute barred but also caught by res judicata. This appeal challenges that decision and is predicated upon five (5) grounds, from which the following four (4) issues were distilled by the Appellants for

determination:
1. Whether the Present case on Appeal was caught by the equitable doctrine of res judicata in view of the earlier case, suit. No. FHC/KD/CS/05/2009, which was struck out – not dismissed – by the Federal High Court Kaduna in its Ruling delivered on 4th April, 2011.
2. Whether the Appellants’ case is statute barred.
3. Whether the Arbitration clause in the Share Purchase Agreement (SPA) is a condition precedent before the institution of this suit.
4. Whether the Learned trial judge was right to have dismissed Appellants’ case at this stage.

The 1st Respondent, however, submitted a sole issue, founded on the five grounds of appeal, for determination thus:
Whether the decision of the trial lower court as delivered on the 17th day of March, 2016 is supportable in law as to warrant tampering with any part of the decision thereof.

On Issue one, which is very similar to the lone issue raised by the 1st Respondent, the learned counsel for the Appellants T. E. Mosugu, Esq argued that the Claimant’s suit is not only caught by the doctrine of res judicata but it also constitutes an abuse of Court process. It was earlier

decided that the 1st Defendant/Respondent was wrongly joined as a party to the previous similar suit against which the Claimant did not appeal but rather filed a fresh suit against the same party.

The share sale/purchase agreement was made between 1st Defendant Bureau of Public Enterprises and Federal Superphosphate Fertilizer Company Limited and Hekio Consortium, who was the purchaser.

It was argued that there is a covenant that events occurring after the coming into existence of the 1st Respondent are to be benefited by the Appellants.

The learned counsel for Appellants further argued that the subject matter in the present suit is different from the subject matter of the ruling delivered on 4/04/2011 at the Federal High Court Kaduna in the following ways:
a. The claim in the present suit includes the award by the Senate of the Federal Republic of Nigeria of N73 Million in favour of the Appellants against the Respondents.
b. There is a specific claim No. 3 in the present suit on 10% Shares held (in trust). .. held in favour of workers of FSFC (1st Defendant).
c. In view of (b) above, the SPA must be read along with

Section 5(3) of the Privatization and Commercialization Act, Cap P38, LFN, 2004
d. The Federal High Court Ruling of 4/03/201 1 did not involve, nor did it resolve the N73 million award by the Senate against the BPE, 2nd Respondent which did not contest the Senate’s interventions and award in the present case.

It was further argued for the Appellants that the dismissal of the Appellants’ suit without considering the fact of senate award of N73 million had denied Claimants/ Appellants their constitutionally guaranteed rights to fair hearing.
The Court was urged to resolve issue one in favour of the Appellant.

The learned counsel for the 1st Respondent P. Y. Garuba, Esq, however, argued a sole issue for determination, which is reproduced at risk of repetition, thus:
“Whether. the decision of the trial lower Court as delivered on the 17th day of March, 2016 is supportable in law as to warrant tampering with any part of the decision thereof.”

The 1st Respondent’s counsel submitted that the foregoing sole issue is the cornerstone of the instant appeal considering the fact that the subject of the instant appeal, was decided by the Kaduna

Division of the Federal High Court between the Appellants and the respondents herein in Suit No.FHC/KD/CS/05/2009, which still subsists and not appealed against. See Victor J. Rosseck & 2 Ors – vs – African Continental Bank Ltd & 2 Ors (1993) 10 SCNJ p. 20 at 43.

It was submitted for the 1st Respondent that the lower Court’s decision as delivered on the 17th day March. 2016 is supportable in law, and this Court need not tamper with any part thereof.

It was further argued that the matter decided by the Kaduna Division of the Federal High Court in Suit No. FHC/KD/CS/05/2009 is the same in all material respects with the suit litigated at the Court below that culminates into the instant appeal. It was submitted, for the 1st Respondent, that what the Appellants contested at the Federal High Court Kaduna is on all fours the same with the Appellants’ claim against the three Respondents before the Kano Division of the National Industrial Court of Nigeria. That the Appellants had caused a writ of summons to issue at their instance and against seven defendants including the Federal Superphosphate Fertilizer Company Limited (Privatised) Bureau Of Public

Enterprises (BPE), Hekio Consortium and 4 others at the Kaduna Division of the Federal High Court of Nigeria in suit No FHC/KD/CS/05/2009. Their claims against the defendants jointly and severally in the earlier suit are as enumerated in the writ of summons and statement of claim in the instant case.

On being served with the Writ of Summons and Statement of Claim, the 1st and 2nd Respondents. raised a Preliminary Objection to the competence of the suit on the ground that it is statute barred. In a considered ruling on the 4th day of March, 2011, the learned trial judge Honourable Justice M.L Shuaibu, J (as he then was) held amongst others as follows: (see page 358 of the printed record).
“… The action as regards the 2nd and 7th Defendants is caught up by the Statute of Limitation and no reasonable cause of action is disclosed against. the 1st and 4th Defendants. By and large, the action is incompetent and I so hold.
It is accordingly struck out”

The Appellants have not appealed against the foregoing decision of the Federal High Court but instead, instituted another action against the same 1st to 3rd defendants/

Appellants at the Court below claiming the same reliefs as in the previous suit No. FHC/KD/CS/05/2009.9

The learned counsel urged the Court to resolve the issue in favour of the 1st Respondent and strike out the appeal as incompetent.

The 2nd Respondent adopted the following four issues for determination as formulated by the Appellants:
1. Whether the Appellants claim/complaint was statute Barred by virtue of Section 2 (a) of the Public Officers (Protection) Act, CAP. P. 41 of the Laws of the Federation; and Section 23 of the Public Enterprises (Privatization and Commercialization) Act, Cap P 38, LFN, 2004.
2. Whether the claim/Complaint of the Appellants which was first filed and adjudicated upon at Federal High Court Kaduna, and an Appeal filed at the Court of Appeal Kaduna, can validly be filed at another court of co-ordinate jurisdiction.
3. Whether the Arbitration clause in the Share-Purchase Agreement (SPA) is a condition precedent to be met by the Appellants before instituting this claim/ complaint.
4. Whether the learned trial judge was right to have dismissed Appellants case at this stage.
Similarly, the learned

counsel for the 2nd Respondent T. T. Kyuga, Esq. argued extensively on the incompetence of the suit filed by the Appellants at the lower Court resulting principally from estoppel per rem judicata. The entire arguments, which are on all fours similar with the submissions of the 1st Respondent have been considered including the authorities cited in reaching the following findings and conclusion.

Decision:
There is no doubt that the lower Court and the Federal High Court are Courts of Co-ordinate jurisdiction. See Titilayo Cole Vs Adim Jibunoh & 2 Ors (2016) 1 SCNJ 93 at 114. The Federal High Court had in suit No. FHC/KD/CS/05/2009 having ruled that the suit was abuse of Court process and statute barred against the 2nd Respondent herein. The Court, being of coordinate jurisdiction, rightly struck out the case predicated on substantially the same subject matter and same parties as incompetent by holding thus:
“I am of the opinion that the decision of the Court delivered on 4/03/2011 is still binding on the parties, and where any party is aggrieved that party can file. an appeal to the Court of Appeal.
The foregoing decision is in

consonance with settled position of the law that a Court of co-ordinate jurisdiction has no power to sit as an appellate Court and review and/or adjudicate on a decision or order made by another Court of the same hierarchy. See Chief Gani Fawehinmi Vs Attorney General Lagos State No. 1 (1989) 3 NWLR (PT. 112), 707 at 774.

The Appellants’ act in bringing about a fresh action involving the same parties and the same subject matter before the lower Court is caught up by the plea of estoppel per rem judicata and same was rightly dismissed by the lower Court. The remedy open for the Appellants after the decision of the Federal High Court in Suit No. FHC/KD/CS/05/2009 was to appeal against that decision. It was wrong for the Appellants to re-litigate the same matter between the same or substantially the same parties. See Alhaji Madi. Mohammed Abubakar Vs Bebeji Oil and Allied Products Ltd & 2 Ors (2007) 2 SCNJ 170 at 202. and Titilayo Cole Vs Adim Jibunoh & 2 Ors.Where a Court of competent jurisdiction has finally settled a matter in dispute between parties, neither party or privy may re-litigate that issue under the guise a fresh action.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The general principle of the law is that it is the nature of the order made in a decision that determines whether it is interlocutory or final. Consequently, each case has to be determined on its own peculiarities and within the context and confines of the facts disclosed therein.
An interlocutory decision has been defined in plethora of judicial authorities to mean one in which the order therein did not finally depose of the rights of the parties in the case in which it was made. See Afuwape v. Shodipe (1957) 2 FSC 12; (1957) SCNLR 265: Ude v. Agu (1961) All NLR 65;Omonuwa v. Oshodin (1985) 2 NWLR (Pt. 10) 924 at 936, 938. The scope of a final decision, on the other hand, has been aptly captured by the vastly erudite Jurist Karibi Whyte, J.S.C. in the case of theOmonuwa v. Oshodin thus:
“All the cases cited agree on the proposition that a decision between the parties can only be regarded as final when the determination of the Court disposes of the rights of the parties (and not merely an issue) in the case. Where only an issue is the subject matter of an order or appeal the determination of that Court which is a final decision on the

issue or issues before it which does not finally determine the rights of the parties, is in my respectful opinion interlocutory.”

I have no doubt that the rights of the parties herein were finally determined by decision of the Federal High Court in suit No. FHC/KD/CS/05/2009. The issue is resolved in favour of the 1st and 2nd Respondents against the Appellants. This renders the remaining issues academic and totally insignificant. Suffice it to observe that abuses of due process like res judicate are visited with an order of dismissal irrespective of the nomenclature in the pronouncement of the lower Court. The right order in such circumstances is nothing other than dismissal. The instant appeal is totally bereft of merit and is hereby dismissed. No order as to costs.

OBIETONBARA O. DANIEL – KALIO, J.C.A.:
I have read the judgment of my learned brother, Hussein Mukhtar, JCA. and I agree with the reasoning and conclusions of my lord in the said judgment. I have nothing useful to add.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.:
I have read in draft the Judgment of my learned brother, HUSSEIN MUKHTAR JCA, I also dismiss this appeal as being

affected by the virus of res judicata.

Appearances:

E. MOSUGU, ESQ., WITH: l. N. ABOI, ESQ.
For Appellant(s)

Y. GARUBA, ESQ., WITH: A. Y. ALIYU, ESQ.
T. T. KYUGA, ESQ.,
(BRIEF OF J. A. AKO, ESQ) For Respondent(s)