ISAAC DORSU & ORS v. BENSON EYEGBANGHAREN & ORS (2019)

ISAAC DORSU & ORS v. BENSON EYEGBANGHAREN & ORS

(2019)LCN/13924(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 25th day of June, 2019

CA/B/47/2009

RATIO

EVIDENCE: ESTOPPEL PER REM JUDICATAM: INGREDIENTS  FOR A SUCCESSFUL PLEA

The law is that for a plea of estoppel per rem judicatem to lie, the following conditions must be fulfilled or shown to be present:-
i. that parties or their privies and the claim/issue in dispute in both proceedings are the same.
ii. that the res judicata or the subject matter of the litigation in the two cases is the same.
iii. that the decision relied upon, to support the plea is valid, subsisting and final; and
iv. that the Court that gave the previous decision relied upon to sustain the plea is a Court of competent jurisdiction. See Salawu Yoye v. Olubode & Ors. (1974) 1 All NLR (Pt. 2) 118; Odadhe v. Okujeni (1973) 11 SC. 343 p. 353.?
– Bosinde Ayuya & Ors. v. Chief Naghan Yonrin & Ors. (2011) 10 NWLR (Pt. 1254) 135 at 180-181, Per Galadima, JSS. See also Odadhe v. Okujeni (1973) 11 SC 343; Yoye v. Olubode (1974) 1 All NLR (Pt. 2) 118; Fadiora v. Gbadebo (1978) 3 SC 219; Oke v. Atoloye (No.2) (1986) 1 NWLR (Pt. 15) 241 and Alhaji Madi Mohammed Abubakar v. Bebeji Oil & Allied Products Ltd. & Ors. (2007) 18 NWLR (Pt. 1066) 319. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A

EVIDENCE: ESTOPPEL PER REM JUDICATAM:WHEN ESTOPPEL PER REM JUDICATA MUST BE PLEADED

In the case of Clay Industries (Nig.) Ltd. v. Adeleye Aina & Ors. (1997) 7 SCNJ 491 at 509, per Iguh, JSC, the Supreme Court stated the law in respect of estoppel succinctly as follows:-
It is a general principle of law that estoppel must be pleaded before the trial Court.
See also the cases of Obanye v. Okwunwa (1930) 10 NLR 8; Sowa v. Amachree (1933) 11 NLR 82 and Dedeke v. Williams (1944) 10 WACA 164. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A

JUSTICES

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria

Between

1. ISAAC DORSU
2. MATTHEW ITSEKURE
3. GODWIN AMITA
4. SUNDAY URUNMATSOMA
5. JACKSON ENEJUERI
(For themselves and on behalf of
Uwangue family, Ajamita Community). Appellant(s)

 

AND

1. BENSON EYEGBANGHAREN
2. WILSON MENE
3. SAMSON OGBODUWA
4. RICHARD OMARE
(For themselves and on behalf of Aloba Uwangue family of Udo community).
5. DEAN O.T. EDAH
6. J.A.Y. OJUMEDE
7. A.O. OFOYENO
(For themselves and on behalf of Ifie
Uwangue family of Tebu Community).
8. CHEVRON NIGERIA LIMITED Respondent(s)

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellants were the plaintiffs in Suit No. EHC/4/2000 instituted in the High Court of Delta State, holden at Effurun and in which suit they sought the following relief in the writ of summons they took out or issued:-
?1. A declaration that the plaintiffs being descendants of Uwangue who founded Olero creek area have equal ownership title to Olero creek area with the other descendants of Uwangue including 1st and 2nd sets of defendants.
2. A declaration that the plaintiffs have exclusive right of possession to the part and/or area of the Olero creek, where the plaintiffs found their community, have their farms, fish ponds, economic trees, shrines, sacred bushes, graves, artificial canals, burial ground to the exclusion of other Uwangue descendants including the 1st and 2nd sets of defendants and their communities and that the plaintiffs? community and their community properties are for the plaintiffs alone.
THE PLAINTIFFS CLAIM AGAINST THE 3RD SET OF DEFENDANT CHEVRON NIGERIA LIMITED AS FOLLOWS:-
3. That the 3rd set of defendant, Chevron Nigeria Limited by its crude oil exploration and exploitation activities in the Olero creek damaged the plaintiffs? farms, fish ponds, economic trees, shrines, sacred bushes, graves, artificial canals and burial grounds all valued N98, 000,000.00 (Ninety Eight Million Naira) which Chevron Nigeria Limited should pay to the plaintiffs as compensation to the exclusion of 1st and 2nd sets of defendants.
4. A perpetual injunction restraining the 3rd defendant, its agents, servants or privies from paying any money or monies to the 1st and 2nd sets of defendants in respect of the plaintiffs properties damaged by the 3rd defendant in Olero creek, and the 1st and 2nd set of defendants should also be restrained from receiving such money or monies due to the plaintiffs as compensation.?

The 1st?4th respondents, who were the 1st-4th defendants (or 1st set of defendants) filed a motion on notice on 22/03/2004 in which they sought the following order:
AN ORDER striking out this action i.e. Suit No. EHC/4/2000, on grounds of jurisdiction and competence.?

The 1st -4th respondents anchored their application on the following grounds:-
1. That the plaintiffs? claim as indorsed in relief 3 of their writ of summons dated the 10th day of January, 2000, relate to damages from crude oil exploratory activities of the 4th defendant (Chevron Nig. Ltd.) which is within the exclusive jurisdiction of the Federal High Court by virtue of Decree No. 60 of 1991.
2. That relief as indorsed in the said writ of summons of 10/01/2000, constitute gross abuse of process of this Court as the plaintiffs/respondents have already been made parties in Suit No. W/129/96.
3. Consequent on the above, this honourable Court lacks the jurisdiction to entertain this suit.?

The 1st?4th respondents? application was opposed by the appellants who filed a counter affidavit of 15 paragraphs. The trial Court heard the parties on the said application and, in a ruling delivered on 30/07/2008, upheld the 1st?4th respondents? objection. This appeal is against the said ruling.

PRELIMINARY OBJECTION
The 1st to 4th respondents raised and argued a preliminary objection in their amended brief filed 15/08/2017 but deemed as filed on 22/10/2018.The grounds for their preliminary objections are:-
i. That the grounds of facts are filed without the leave of Court.
ii. The particulars do not relate to the grounds.
iii. The particulars are narrative and argumentative.
iv. The grounds of appeal do not relate to the ruling of the trial Court.
v. The grounds of appeal are verbose and disclose no reasonable grounds.?

Learned counsel for the 1st ? 4th respondents argued that the appellants? grounds of appeal are not in compliance with Section 248 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Order 7 Rules 2 (2) & (3) and 3 of the Court of Appeal Rules, 2016. Counsel urged the Court to strike out the grounds of appeal.

The learned counsel contended that ground 1 is against an obiter dictum of the trial Court and not the ratio decidendi of the ruling appealed against. Counsel submitted that the particulars to grounds 2, 3, 4, 5 and 6 are argumentative and narrative and that the grounds are liable to struck out. Learned counsel stated that ground 4 and particular 2 to ground 6 do not relate to the decision appealed against.

In urging the Court to uphold the preliminary objection, learned counsel referred to Sections 14 (1) and 24 (2) (a) of the Court of Appeal Act, 1976 (as amended) and the case of Global West Vessel Specialist (Nig.) Ltd. v. Niger NLG Ltd. & Anor. (2017) All FWLR (Pt. 881) 1119 at 1151, per Ariwoola, JSC and submitted that being an interlocutory appeal, it ought to have been filed within 14 days.

In response to the preliminary objection, learned counsel referred to the case of Clement Odunukwu v. Dennis Ofomata & Ors. (2010) 12 SCNJ 516 and argued that:-
?The preliminary objection against the competence of a ground or grounds of appeal will not terminate the appeal where there is a ground or other grounds in order which can sustain the appeal. Where there is a ground or grounds that are in order to sustain the appeal, the respondent can only bring motion to strike out the incompetent ground or grounds in the notice of appeal.?

The ruling appealed against by the appellants covers pages 271 to 274 of the record of appeal and, by the said ruling, the trial Court declined jurisdiction for the reasons advanced therein. The trial Court then made the following orders:-
Accordingly I make the following order:
1. Claim 1, cutting the jurisdiction because it should be a claim in the Federal High Court fails and is hereby dismissed.
2. The reliefs endorsed in the writ of summons earlier on here quoted constitutes an abuse. The plaintiffs/respondents cannot relegate the same issue by virtue of Estoppel.
3. Consequently, this Court lacks jurisdiction to entertain this claim, it having litigated and consent judgment given.
The avenue open to the plaintiffs/respondents is to challenge the order made in Suit No. W/129/96 in an appellate Court rather than file a fresh suit as they have done.?

From the decision and orders of the trial Court, the rights of the appellants were finally decided and/or determined by a ruling on an interlocutory motion on notice. Since the appellants? rights were finally decided upon in the said ruling, albeit on an interlocutory application, the decision of the trial Court is a final decision which the aggrieved appellants could appeal against as of right under

Section 241 (1) (a) of the  Constitution of the Federal Republic of Nigeria, 1999 (as amended). See Chief L.L.B. Ogolo v. Joseph T. Ogolo (2006) 5 NWLR (Pt. 972) 163; (2006) All FWLR (Pt. 313) 1.
In any case, a ground of appeal relating to the Court?s jurisdiction is a ground of law, in respect of which no leave of Court is required even if the appeal is against an interlocutory decision. See Section 241 (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Lovleen Toys Industries Ltd. v. Femi Adewale Komolafe (2013) 14 NWLR (Pt. 1375) 542.

One point that should be mentioned is that a preliminary objection is inappropriate where some of the grounds of appeal are competent and can sustain the appeal. A preliminary objection is only appropriate where the notice of appeal or the appeal