IDOWU TAYO ONAOPEMIPO v. UNION BANK OF NIGERIA PLC
(2018)LCN/12296(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 18th day of December, 2018
CA/EK/23/2016
RATIO
COURT AND PROCEDURE: RES JUDICATA- WHETHER THERE MUST BE AN END TO LITIGATION
“Res judicata comes from the Latin maxim, nemo debet bis vexaripro eadem causa which means that, a Plaintiff cannot by formulating a fresh claim, re-litigate the same causa. Bairamian FJ. In the case of MADUKOLU V. NKEMDILIM 1962 LPELR-FSC 344/1960, explained it as follows: If the res-the thing actually and directly in dispute- has been already adjudicated of course by a competent Court it cannot be litigated gain. The reason behind this principle of law is in pursuit of public interest, interest republicae ut sit finis litium, which means that, there must be an end to litigation.’ See also the case of ADESINA & ORS V. COM., IFON-ILOBU BOUNDARY COMMISSION, OSHOGBO & ANOR 1996 LPELR-SC 45/1990, wherein, Belgore JSC.” PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
COURT AND PROCEDURE: WHEN IS A DECISION FINAL
“What then is a final decision? There is no clear definition of a final decision in any Statute save a description of it in Section 318 of the 1999 Constitution of the Federal Republic states as follows: any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation. The Courts, however, have provided interpretation thereto as a guide and for the purposes of clarity. The apex Court in the case of OMONUWA V. OSHODIN 1985 2 NWLR PT. 10 294 SC ” PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
JUSTICES
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria
Between
IDOWU TAYO ONAOPEMIPO
(Trading under the name and style of Idowu T. Onaopemipo Ventures) Appellant(s)
AND
UNION BANK OF NIGERIA PLC Respondent(s)
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.(Delivering the Leading Judgment):
This appeal emanated from the decision of the Ekiti State High Court, Ado-Ekiti, delivered by Hon. Justice J. O. Adeyeye on September 28th 2018, wherein the Court struck out the Suit no. HAD/48/2014, filed by the Appellant (the Claimant at the Court below), when it declined jurisdiction in its Ruling on the Preliminary Objection filed by the Respondent (the Defendant at the Court below).
The Appellant claimed against the Respondent as per its Writ of Summons in the main that, the refusal by the Respondent to make available his statement of account in spite of various requests from 2011 is a breach of their contractual relationship, prayed for an order compelling the supply of the statement of account, payment of #30,987,142. 83. as excess bank charges on the account with 25% interest on the said sum, #10,000,000. 00 general damages and #500,000. 00 as costs of the action. See pages 5-10 of the printed Record before this Court.
The facts that culminated into this appeal are briefly that, the Appellant, a customer of the Respondent, was granted overdraft facility in 2006 of #5,000,000. 00 (Five Million Naira) only which was increased later to #15,000,000.00 in 2008 and further renewed in 2009. As a condition precedent to the 2009 renewal, the Appellant was expected to have the account balance in the sum of #15, 000, 000. 00. The Appellant found the figure demanded as balance by the Respondent high and from the use of auditors, found arbitrary and excess charges which amounted to #30,987, 142. 83. The Appellant requested the Respondent to regularize his account according to his findings, his statement of account for 2011 in order to ascertain the actual indebtedness and a refund of the said sum, plus interest thereon. When there was no response the Appellant instituted an action against the Respondent in Suit HAD/48/2010 and sought the following reliefs:
A. A declaration that the defendant is only entitled to charge the approved banking interest and commission on the overdraft facilities granted to and for services rendered for the plaintiff in respect of her current account no 8071020002843.
B. An order directing the Defendant, her agents or privies not to charge and collect more than the interest rate and commission approved by the Central Bank of Nigeria on the overdraft or loan facilities granted the Plaintiff in respect of her current account No 8071020002843 with the Defendant.
C. An order suspending the charging of further interest on the outstanding balance of the overdraft facilities granted the Plaintiff by the Defendant in respect of the said account pending final liquidation or payment of the plaintiff certified debt with the Defendant.
D. An Order directing the Defendant, her agents, assigns or privies to grant the Plaintiff a moratorium of nine months after certifying the Plaintiff (sic) indebtedness to her, to enable the Plaintiff pay her certified debt.
E. An Order directing the Defendant to allow the Plaintiff to pay her certified debt installmentally after deducting excess charges, interest and commission on the said account.
The Respondent in answer to the foregoing Appellant’s claim filed a Notice of Preliminary Objection challenging the jurisdiction of the Court on the ground of res judicata. The Court, in its considered ruling found in favour of the Respondent, sustained the objection and struck out the Appellant’s suit.
Being dissatisfied, the Appellant filed his Notice of Appeal with three (3) grounds of appeal, dated December 28th, 2015, on December 29th, 2015. He sought the following relief:
To allow the appeal set aside the decision of the lower Court and restore the Suit No: HAD/48/2014 back to the cause list for trial by another judge of the Ekiti State High Court, Ado- Ekiti.
Both parties, in accompliance with the Rules of this Court, filed and exchanged their briefs of argument. At the hearing of the appeal, Mr. P. P. Monde Esq. adopted the Appellant’s amended brief of argument, dated January 29th, 2018, filed January 30th, 2018 which was deemed as properly filed and served on March 12th, 2018. The Respondent’s brief, dated August 14th, 2017, filed August 22nd, 2017 and deemed March 12th, 2018, was adopted by Mr. E. A. Akindolie Esq.
ISSUES SUBMITTED BY BOTH PARTIES
APPELLANT’S ISSUES
1. Whether the grouse of the appellant has (sic) endorsed in the statement of claim about the refusal of the Respondent to avail the appellant his statement of account from 2011 till date was the same issue tried by the Court in HAD/48/2010 (Ground 1).
2. Whether the appellant (sic) case at the trial Court can only be enforced by a different action considering the continuous nature of the injury suffered by the appellant and the fact that the judgment in HAD/48/2010 was a declaratory judgment that only a separate proceedings/action can enforce (Grounds 2 and 3).
RESPONDENT’S SOLE ISSUE
Was the trial Court was right that the parties, issues and subject matter decided in the previous case are the same as in this present action to sustain the doctrine of res judicata.
Having very carefully considered the two sets of issues by both sides, one is of the view and humbly that a sole issue as follows will justly and fairly determine this appeal given the facts that culminated thereto:
Whether or not the Court was right when it found and held that the doctrine of res judicata was applicable to Suit No. HAD/48/2014 by the Appellant.
Before considering the singular issue as adopted, I shall consider the submissions made on behalf of both parties.
PARTIES’ SUBMISSIONS
The learned Counsel for the Appellant, Mr. P. P. Monde Esq., submitted that, the trial Court was wrong to have found the doctrine of res judicata applicable to the Appellant’s suit, having found that Suit No. HAD/48/2014 is the same with Suit HAD/48/2010. He argued that, Suit HAD/48/2010 did not cover matters that occurred between the parties after 2010 and that the Court was in clear violation of the principle of judicial precedent and stare decisis by not following the decision of the apex Court in the case of A-G NASARAWA STATE V. A-G PLATEAU STATE 2012 3 MJSC PT. III 118. That, the nature of the Appellant’s case is a continuous one as his grouse was the Respondent’s refusal to make the Appellant’s statement of account available since 2011 till the date of the suit and his claim for a refund of the overcharge of about #30, 987, 142. 83 (Thirty Million, Nine Hundred and Eighty Seven Thousand, One Hundred and Forty – Two Naira and Eighty Three Kobo). That, those issues were not discussed in HAD/48/2010 and so a fresh suit was the answer in the circumstance and which should not be hampered by the doctrine of res judicata.
Therefore, he added that, the Court erred in law to have declined jurisdiction even when the Respondent failed to satisfy the necessary condition for the application of res judicata. He referred the Court to the Statements of claim for the two Suits and contended that they are not the same that, Suit no. HAD/48/2010 dealt with issues between the parties from 2006 -2010 and Suit no. HAD/48/2014 was on issues from 2011 till the filing of the suit and for the enforcement of the declaratory Judgment delivered in HAD/48/2010 as well as the payment of the excess interest, #30, 987, 142. 83 deducted from the Appellant’s account without justification.
In support, he cited the cases of OSHO V. A-G EKITI STATE 2002 FWLR PT. 100 1308 and OYEYEMI V. IREWOLE LOCAL GOVT. 1993 1 NWLR PT. 270 470. He asserted that, it was in pursuit of a legal remedy, following the said declaratory judgment and the continuous refusal of the Respondent, that the Appellant commenced Suit No. HAD/48/2014. That, it was erroneous for the Court to have terminated it and cited in support the case of ODE V. BALOGUN 2002 1 FWLR PT. 115 693 as the second suit was for consequential relief which the Court ought not to close its doors to, he argued. In conclusion, the learned Appellant’s Counsel urged that, the Ruling by the Court be set aside and the suit restored back to the cause list to be tried on its merit.
In response and on the contrary, the learned Respondent’s Counsel, Mr. Akindolie Esq., submitted that, the Appellant’s Suit no. HAD/48/2014 was caught by the plea of res judicata and that the Court was right to have so held as it lacked the jurisdiction to entertain it. He cited in support, the cases of LAWAL V. DAWODU 1972 1 ALL NLR PT. 2 270, EZEWANI V. ONWORDI 1986 4 NWLR PT 33 27, FADIORA V. GBADEBO 1978 3 SC 219, OSHODI V. EYIFUNMI 2000 13 NWLR PT. 684 298 and ADONE V. IKEBUDU 2001 14 NWLR PT. 733 385.
He contended that, paragraphs 3, 4, 5, 6 -15 of the Appellant’s Statement of claim in Suit No. HAD/48/2014 contain the same facts with paragraphs 6-28 in Suit no. HAD/48/2010 and that, the parties, issues and subject matter are the same. Further that, the substratum of the Appellant’s case in both Suits bothers on the alleged illegal deductions, arbitrary/unilateral charges and excess charges and non -production of the Appellant’s statement of accounts by the Respondent.
The learned Counsel submitted that, the case of A-G NASARAWA STATE V. A-G PLATEAU STATE supra, cited by the learned Appellant’s Counsel is not applicable. He argued that, the Appellant’s position that, that there is need for new and fresh action is misconceived and erroneous in law and it would amount to a second bite at the cherry by the Appellant, if he is allowed. In support, he cited the case of NIGERGATE LIMITED V. NIGER STATE GOVERNMENT & 2 ORS 2008 ALL FWLR PT. 406 1938 1964. In conclusion, he urged that, the subtle invitation by the Appellant to disturb the findings of the trial Court should not be allowed and the appeal be dismissed as unmeritorious.
THE POSITION OF THE COURT
I have very carefully in the foregoing paragraphs considered the arguments by both parties, for and against the instant appeal. Having very carefully so done, I shall proceed with the consideration of the sole issue which is hereunder reproduced for ease of reference:
SOLE ISSUE
Whether or not the Court was right when it found and held that the doctrine of res judicata was applicable to Suit No. HAD/48/2014 by the Appellant.
Res judicata comes from the Latin maxim, nemo debet bis vexaripro eadem causa which means that, a Plaintiff cannot by formulating a fresh claim, re-litigate the same causa. Bairamian FJ. In the case of MADUKOLU V. NKEMDILIM 1962 LPELR-FSC 344/1960, explained it as follows:
“If the res-the thing actually and directly in dispute- has been already adjudicated of course by a competent Court it cannot be litigated gain.
The reason behind this principle of law is in pursuit of public interest, interest republicae ut sit finis litium, which means that, there must be an end to litigation. See also the case of ADESINA & ORS V. COM., IFON-ILOBU BOUNDARY COMMISSION, OSHOGBO & ANOR 1996 LPELR-SC 45/1990, wherein, Belgore JSC. as he then was stated thus:
When a matter is kept in litigation by constant suit in respect of the same subject matter and between the same parties and or their privies, the Courts process of adjudicating may thereby be abused and scandalized. It is for this purpose that there must be an end to litigation. This led to the principle of res judicata. Once a matter is decided and it is final in the sense that all remedies of the appeal have been exhausted or where no appeal is lodged that decision is final between the parties or their privies in respect of the same subject matter. Thus the matter is final and closed between the parties and their privies which include their successors or agents in respect of the same subject. It is a matter already judicially decided. That is what res judicata is all about.
See further, the cases of ABUBAKAR V. BEBEJI OIL AND ALLIED PRODUCTS LTD. & ORS 2007 LPELR-SC 110/2001, DAKOLO & ORS V. REWANE 2011 LPELR-SC 169/2004, ODJEVWEDJE V. ECHANOKPE 1987 1 NWLR PT. 52 P. 633, OKPURUWU V. OKPOKAM 1988 4 NWLR PT. 90 P. 554, UDO V. OBOT 1989 1 NWLR PT. 95 P. 59 and RAPHAEL AGU V. CHRISTIAN IKEWIBE 1991 LPELR-SC 107/1988. It is necessary to note that a plea of estoppel per rem judicatam deprives the Court of jurisdiction to determine an issue to which it relates if it succeeds once all the ingredients necessary to establish the principle are proved and none can be presumed. See the case of IKE V. UGBOAJA 1993 6 NWLR PT. 301 539.
The Courts over time, in the question whether or not the plea of res judicata is applicable, call in aid the following guiding principles:
1. There must be an earlier final decision which has disposed of the rights of the parties.
2. The earlier judgment must have been given by a competent Court.
3. The parties must be the same in both the new and earlier suits which include their privies.
4. It must be the same claim as in the previous suit.
5. The same subject matter as in the previous suit.
See the cases of AJUWON V. ADEOTI 1990 NWLR PT. 132 271, IHENACHO NWANERI V. ORIUWA & ORS 1959 4 FSC 132, WILLIAM UDE & ORS V. JOSIAH AGU & ORS 1961 1 ALL NLR 65 and WILSON ETTI & ORS V. PETER EZEOBI OF UMUOSHA OGUTA 1976 12 SC 123.
The next necessary step now herein would be to compare the two Suits, HAD/48/2014 and HAD/48/2010 in terms of the issues that were considered and determined therein and as stated in the case of MADUKOLU V. NKEMDILIM by the apex Court, if the res-the thing actually and directly in dispute has been already adjudicated ?.it cannot be litigated again. As in Section 53 of the Evidence Act, it is the facts that are directly in issue. What then were the issues in the two Suits. The genesis or the root cause of the discord between the parties began in Suit no. HAD/48/2010, when an overdraft facility of #5,000,000.00 from the Respondent to the Appellant was renewed to #15,000,000. 00 and arbitrary and excess charges which amounted to #30,987,142.83 (Thirty Million, Nine Hundred and Eighty-seven, One Hundred and Forty-two Naira Eighty-three Kobo) were found by the Appellant’s auditors in respect of his account from 2006-December 2011. The Appellant therefore, requested the Respondent to avail him with his statement of account from 2011, regularize his account according to his findings to enable him know the actual indebtedness and a refund plus interest of the excess charges.
When there was no response, he sought the orders of the Court as already stated. The Court on November 29th, 2013, in its Judgment and wisdom granted reliefs A and B and declined C, D and E. The case of the Appellant, therefore, succeeded in part. The Counter-claim of the Respondent failed in its entirety. See pages 98-106 of the Record. In 2014, the Appellant filed another Suit no. HAD/48/2014 and sought the following reliefs:
a. A declaration that the refusal, failure and neglect of the defendant to provide the claimant his statement of account from 2011 to date despite various request, is a breach of the contractual duty the defendant owes the claimant
b. An Order compelling the defendant to avail the claimant his statement of account number 0034638739 from August 2011 till date for scrutiny and examination by his firm of auditors/accountants.
c. The payment of the sum of N30, 987, 142. 83 (Thirty Million, Nine Hundred and Eighty Seven Thousand, One Hundred and Forty Two Naira, Eighty Three Kobo) only as a refund being the total amount charged the claimant account as excess bank charges and illegally and without justification whatsoever and arbitrarily deducted from the claimant account which were not approved by the Central Bank of Nigeria guide to bank charges.
d. 25% interest on the N30, 987, 142. 83 (Thirty Million, Nine Hundred and Eighty Seven Thousand, One Hundred and Forty Two Naira, Eighty Three Kobo) only illegally deducted from the claimant account as excess bank charges and other charges not approved by the CBN guide to bank charges
e. N10, 000, 000. 00 as general damages to the claimant for the breach of contractual duty owed to the clamant and the unlawful and illegal deductions of his account thereby putting the claimant to psychological trauma and stress.
f. N500, 000. 00 as the cost of this suit.
See page 21 of the Record.
The Court found and correctly that the parties in the two Suits are the same: ?..It is therefore not in doubt that the parties in the two cases are the same. See page 222 of the Record. Further, the Court on pages 229 of the Record found thus:
“(1) That the parties in both cases are the same, the rephrasing or reframing the name of the claimant notwithstanding, the fact remains that it is still the same Idowu T. Onaopemipo. The defendant in both cases is Union Bank of Nigeria Plc.
(2) That the subject matter of the dispute in the two cases is the alleged over charging of interest in respect of the overdraft facilities granted the claimant by the defendant.
(3) That the issues involved in the two cases which centered on the alleged excess charges of interest on the overdraft facilities granted to the claimant by the defendant and none release of statement of account are the same.
It is instructive to note that the previous case was heard on its merit and judgment delivered in the suit on 29th November, 2013. There is therefore a valid and subsisting judgment of a Court of competent jurisdiction on the case. The law is settled that where a Court of competent jurisdiction has settled, by a final decision, the matter in dispute between the parties, neither party, or his privy may relitigate that issue again by instituting a fresh action on the same matters.
With respect, one fails to agree with the foregoing position of the Court particularly number (3) thereof.
The issues in Suit no. HAD/48/2014, that is “the thing (things, addition mine) actually and directly in dispute’? in my view and humbly, were not the same as that determined in Suit no. HAD/48/2010. In Suit no. HAD/48/2014 given the Appellant’s grievance or grouse, the issues included the question whether or not there had been a breach of the contractual relationship between the two parties given the non-production of the Appellant’s statement of account by the Respondent in spite of the claimed several requests for same, order for its production as well as the refund of the sum of #30,987,142.83, with 25% interest, being the excess charges on the Appellant’s account and claim for damages.
It is necessary to note that, the production of the Appellant’s statement of account was never an issue between the parties earlier, as the statement of account for 2006 – December 2011 was made available for his auditor’s use. The parties are the same and the subject matter, as it is the grant of the overdraft facilities to the Appellant and the operations of the Respondent over the Appellant’s account no. 8071020002843 (old) and new no. 0034638739, as a result of the facilities.
From the finding and conclusion of the Court, a question that begs for answer is, indeed, was there or could it be found that, a final decision of the matters in dispute between the parties in Suit no. HAD/48/2010 was given, for which reason the Appellant may justly and fairly be stopped from pursuing the claims in Suit no. HAD/48/2014. What then is a final decision?
There is no clear definition of a final decision in any Statute save a description of it in Section 318 of the 1999 Constitution of the Federal Republic states as follows: any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation. The Courts, however, have provided interpretation thereto as a guide and for the purposes of clarity. The apex Court in the case of OMONUWA V. OSHODIN 1985 2 NWLR PT. 10 294 SC per Karibi-Whyte JSC as he then was, stated as follows:
“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 interlocutory.
“A judicial decision is deemed to be final, when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution, and is absolute, complete and certain and when it is not lawfully subject to subsequent decision, review or modification by the Tribunal which pronounced it.”
See the case of SAMUEL FADIORA & ANOR IN RE SAMUEL FADIORA V. FESTUS GBADEBO & ANOR. 1978 LPELR-1224 SC. It is the nature of the orders given in a decision and not the nature of the proceedings therein that can assist to decipher whether or not a decision is final. See the case of BLAY & ORS V. SOLOMON 1947 12 WACA 175.
In answering this question, recourse must be to the Judgment of the Court in Suit no. HAD/48/2010, wherein, the Court resolved the issue of overcharging of interest rate and commission on Appellant?s account in respect of the overdraft facility given to him. It granted reliefs A and B to the effect that, the Respondent was entitled only to charge the approved banking interest and commission on the overdraft facility and ordered the Respondent not to charge and collect more than the interest rate and commission approved by the Central Bank of Nigeria. It declined reliefs C, D and E which sought, the suspension of charging of interest on the outstanding balance of the sum owed by the Appellant, the grant of period of moratorium of nine months to the Appellant and instalmental payment of the outstanding balance. See pages 98-106 of the Record. The answer, in my considered view is that there is no final decision that should estop the Appellant, given the issues in the two Suits as already considered in the foregoing paragraphs.
Having so very carefully considered and compared the Appellant’s two Suits with respect to the issues therein, I am of the respectful view and humbly, that the doctrine of res judicata does not and cannot apply herein. One is unable therefore, to agree with the finding and conclusion reached by the Court.
Ordinarily, it is not the function of an appellate Court to disturb the findings and conclusion of the trial Court. Be that as it may, the law is and as reiterated by the apex Court, where genuine case has been made out by any of the parties which will warrant interference by a higher Court then the higher Court has every latitude to exercise its power of stepping into the shoes of the trial Court with a view to correcting the wrongs committed by the trial Court in the interest of justice. Per Nnamani JSC in the case ofWOLUCHEM V. CHIEF SIMON GUDI 1981 5 SC 178, KUFORIJI V. V.Y.B LTD. 1981 6-7 SC 25. See also the case of KAYDEE VENTURES LTD. V. THE HON. MIN. OF FEDERAL CAPITAL TERRITORY & ORS 2010 LPELR-SC 264/2002. It is trite that an appellate Court will interfere where there are special circumstances justifying such or where the findings would occasion injustice to the Appellant, or are unsound. See the cases of OMOREGIE V. IDUGIEMWANYE 1985 2 NWLR PT. 5 41, ANYANWU V. MBARA 1992 5 NWLR 386 AKULAKU V. YONGO 2002 5 NWLR PT. 759 133 and ENANG V. ADU 1981 11-12 SC 25.
Having found as expressed in the foregoing paragraphs in respect of the sole issue in favour of the Appellant, this appeal therefore, qualifies eminently for success. It hereby succeeds. The Ruling of the Court below delivered on September 28th 2015 by Hon. Justice J. O. Adeyeye of the Ekiti State High Court, is hereby set aside. It is hereby ordered that, the Appellant’s Suit no. HAD/48/2014 be re-assigned by the Hon. Chief Judge to another Judge of the Ekiti State High Court to be heard on its merit.
AHMAD OLAREWAJU BELGORE, J.C.A.: I had read in draft the judgment just delivered by my learned brother, E. O. WILLIAMS-DAWODU, JCA and I agree with his reasoning and conclusions. The appeal succeeds and it is upheld.
The ruling of the Court below delivered on September 28th, 2015 by Hon. Justice J. O. Adeyeye of the Ekiti State High Court, is hereby set aside.
I also allow the appeal and abide by the consequential orders therein.
FATIMA OMORO AKINBAMI, J.C.A.: I agree.
Appearances:
P.P. Monde, Esq. with him, A.L. Olowofela, Esq.For Appellant(s)
E.A. Akindolie, Esq.For Respondent(s)
