JACOB ONAJI & ANOR v. AGADA AGBO
(2019)LCN/12733(CA)
In The Court of Appeal of Nigeria
On Thursday, the 21st day of February, 2019
CA/A/110/2008
RATIO
COURT AND PROCEDURE: TO SUSTAIN PLEA OF RES JUDICATA
“To sustain a plea of res judicata, the party pleading it must satisfy the following conditions to wit:-
a. That the parties (or their privies as the case may be) are the same in the present case as in the previous case.
b. That the issue and subject matter are the same in the previous suit as in the present suit,
c. That the adjudications in the previous case must have been given by a Court of competent jurisdiction, and
d. That the previous decision must have finally decided the issues between the parties. Failure to satisfy any of these conditions means failure of the plea in its entirety. (NKANU V ONUN (1977) 5 SC 13; DZUNGWE V GBISHE (1985) 2 NWLR (PT. 8) 528; UDO V OBOT (1989) 1 NWLR (PT. 95) 59 per KUTIGI, J5C at page 508 paras. G – H” PER PETER OLABISI IGE, J.C.A.
COURT AND PROCEDURE: RES JUDICATA
“I am of the view that where there are before the Court Certified True Copies of previous judgments of Courts of competent jurisdiction showing or encapsulating the ingredients of res judicata as between the parties the subject matter or privies to the parties; the Court can utilize them to compare with the processes filed in the current action between the parties, or their privies in order to discern if the cause of action in the current action has been adjudicated upon to finality against one of the parties, and the Court can thereby find that res judicata is proved or established rendering the current action incompetent without any need to lead or call oral evidence. See the case of MALLAM YUSUF JIMOH V MALLAM KARIMU AKANDE & ANOR (2009) 5 NWLR (PART 1135) 549 AT 575 E per CHUKWUMA-ENEH, JSC who said:- ‘It is established in the case of Nwajuebo v. Alubua Anor (1974) NSCC (Vol. 9) 617; (1974) 12 SC 21 and, if I may restate, that where the principle of res judicata applies to conclude the plaintiff’s case that it would serve no useful purpose for the plaintiff to continue to lead further evidence in the case, It is not an uncommon practice in that instance for the defendant relying on the principle of res judicata to move the Court to have the plaintiff’s claim dismissed peremptorily on the ground of res judicata even without the court having to hear oral evidence at all from the defendants. In this matter, I have in addition to the record of appeal the advantage of both the briefs of the parties and their oral submissions in Court'” PER PETER OLABISI IGE, J.C.A.
JUSTICES
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
1. JACOB ONAJI
2. SUNDAY AGBAKA EGBOYI Appellant(s)
AND
AGADA AGBO Respondent(s)
PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Justice, Kogi State delivered by Hon. Justice R. O. OLORUNFEMI, JP and SALIHU, J., on the 27th day of July, 2007 dismissing the suit of the Appellant as Plaintiffs at the lower Court.
The Plaintiffs had appealed to the Kogi State High Court vide their Notice of Appeal dated 7th day of October, 2004 containing two grounds of appeal stated as follows:-
“GROUND 1
That the decision of the trial Upper Area Court, Okpo, was unwarranted and unreasonable and cannot be supported having regards to the weight of evidence adduced at the trial.
GROUND 2
The trial Upper Area Court erred in law for holding that Res Judicata applied to the Plaintiff/Applicant’s action.
The lower Court found that the Respondent has firmly established a defence of Res Judicata and it affirmed the decision of the trial Court.
The Appellant being aggrieved by the judgment of the lower Court has by his Notice of Appeal dated and filed on the 21st day of September, 2007 appealed to this Court on three grounds which without their particulars are as follows:-
GROUND 1:
The appellate Court below erred in law when it held that the trial Upper Area Court of Okpo was right in upholding the Defendant/Respondent’s Defence of Res judicata and striking out the Plaintiff/Appellant’s suit.
GROUND 2:
The appellate lower Court erred in law for erecting its judgement on its belief when its said, quote:
“At the locus evidence were given by the parties. We believed that the Respondent have made out a defence of Res judicata and the lower court was right when it held so and upheld the preliminary objection of the learned counsel for the Respondent. The lower court have overwhelming evidence and exhibits to confirm the truth of the defence of Res Judicata made out by the Respondent” unquote.
GROUND 3:
The Appellate Court below erred in law for its failure to consider the legal authorities cited to it in the Plaintiff/Appellant’s. counsel’s written Brief for its consideration before entering its judgement.”
The Amended Appellant’s Brief of Argument dated 29th day of October, 2018 was filed on 1st day of November, 2018 while the Amended Respondent’s Brief of Argument dated 5th day of November, 2018 was filed on 16th day of November, 2018. The Amended Appellant’s Reply Brief is also dated 29th day of October, 2018 and filed on 1st day of November, 2018.
The appeal was heard on 26th day of November, 2018 when the learned Counsel to the parties adopted their Briefs of Argument. The learned Counsel to the Appellant distilled two issues for determination as follows:-
“ISSUE 1
Whether the appellate Court below was right when it affirmed the trial Court’s Ruling that the Defendant/Respondent has established his defence of Res Judicata plea notwithstanding that the trial Court did not hear and take any oral evidence from any person or persons to prove the ingredients of the Defendant’s defence of Res Judicata allegedly contained in the documentary Exhibits he tendered to prove his defence”?
ISSUE 2
Whether the appellate Court below was right when it failed or declined to consider the legal authorities which the Plaintiff/Appellant’s Counsel cited in his Brief for its consideration before deciding on the Defendant/Respondent’s controversial defence of Res Judicata Plea ”
The learned Counsel to the Respondent distilled a sole issue for determination of this appeal as follows:-
“Whether upon the consideration of Exhibit A, B, D1, and D1B and tile authorities placed before the Lower Court, the Court was right to have upheld the plea of res Judicata upon which the appeal was refused?”.
The appeal will be considered on the two issues formulated by the Appellant which I will take them together.
“ISSUE 1
Whether the appellate Court below was right when it affirmed the trial Court’s Ruling that the Defendant/Respondent has established his defence of Res Judicata plea notwithstanding that the trial Court did not hear and take any oral evidence from any person or persons to prove the ingredients of the Defendant’s defence of Res Judicata allegedly contained in the documentary Exhibits he tendered to prove his defence”?
ISSUE 2
Whether the appellate Court below was right when it failed or declined to consider the legal authorities which the Plaintiff/Appellant’s Counsel cited in his Brief for its consideration before deciding on the Defendant/Respondent’s controversial defence of Res Judicata Plea.”
The learned Counsel to the Appellant M. I. BALOGUN, ESQ submits that the Exhibit the Defendant/Respondent is relying upon to establish his defence of Res Judicata have not established the ingredients of Res Judicata. That throughout the trial proceedings at the Upper Area Court of Okpo and those of the lower Court no witness(es) adduced any oral evidence to establish the ingredients of Res Judicata from the contents of the Exhibits.
He further submits that it was not proved by any oral evidence (with respect to Exhibit P1) That the parties there in namely APEH AGADA (the Plaintiff) and ABUH ONAJI (the Defendant) were the same parties or relations of parties in the present appeal of SUNDAY AGBAKA EGBOYI (the Plaintiff/Appellant) and AGADA BABA AGBO (the Defendant/Respondent).
That it was also not established by any oral evidence that in the earlier appeal case in Exhibit P2 the Appellant named therein as JAMES ITODO was the same party or the relation of the Plaintiff/Appellant SUNDAY AGBAKA EGBOYI in this appeal.
That the land concerned with the three Exhibits P1, P2 and P3 was not proved by any oral evidence to be the same land concerned with the land of this appeal. He relied on:-
1. OLOWO OKUKUJE VS ODEJENIMA AKWIDO (2001) FWLR pages 1487,1501 – 1523 paras. G-A;
2. EZEKWUHIE IKOKU & 3 ORS VS REUBEN EKEUKWU (1995) 9 SCNJ page 180 at paras 9 – 10.
Learned Counsel further urged this Court to set aside the decision of the lower Court for failure to consider the legal authorities cited by the Appellant’s Counsel.
In response learned Counsel to the Respondent DR. MAIYAKI THEODORE BALA, ESQ. submits that for a Respondent who raised preliminary objection principally premised on the operation of the doctrine of Res Judicata to succeed, such a Respondent must satisfy the Court that:-
i. The parties to the proceedings both previous and present must be the same;
ii. The subject matter litigated upon and issues arising therefrom must be the same in the previous and present proceedings, and
iii. There must be a valid and subsisting judgment of a Court of competent jurisdiction.
He cited:-
1. OGBESUSI VS FAGOLUDE (1983) 2 SC 75 AT 84;
2. CARDOSO VS BANKOLE DANIEL & ORS (1986) 2 NWLR (PT. 20) 1.
3. ISHOLA VS AJIBOYE (1998) 1 NWLR (PT. 532) 71 pp. 77 – 78.
That the effect of raising the issue of res judicata in any case as in the present appeal is a challenge to the jurisdiction of the Court from hearing the matter the second time. He cited OYEGBOLA VS AREMU (1992) 8 NWLR 9PT. 259) 326 pp 333 – 334.
That from the exhibits and the visit of the Court to the land, it is clear that the principle of res judicata applies. That the parties or their privies are the same, the subject matter is the same and the judgments in Exhibits A, and D1B are subsisting and a final judgment that was not appealed against. That the issue on the present case as well as that of Exhibits A and D1B are the same.
That the Respondent in prove of his plea/defence of res judicata chose to rely on the content of the judgments and proceedings. That by the combined effect of Section 76 and 132(1) of the Evidence Act the Respondent is precluded from leading oral evidence on the content of the said judgment and proceedings.
That once the documentary evidence placed before the Court to justify the plea of res judicata is a judgment of proceedings of a Court of law, oral evidence of its content is inadmissible.
He relied on OKPALUGO VS ADESHOYE (1996) 10 NWLR (PT. 476) PG 77 AT PG. 82.
A plea of res judicata arises where an issue that had earlier been adjudicated upon by a Court of competent jurisdiction comes up again in any subsequent proceedings between the same parties or their privies. This applies whether the point involved in the earlier decision is one of fact, or of law, or of mixed facts and law.
The basic principle in a plea of res judicata is that where a party brings an action against another for a particular cause of action, and judgment is given thereon, the party cannot bring another action against the same party for the same cause of action. In other words, estoppels per rem judicata operates in the case of a final judgment or decision of a Court or judicial tribunal of competent jurisdiction between the same parties or their privies. See OBLA V OTAGOYI (2007) 5 NWLR p. 306 – 307.
The doctrine of res judicata applies that only against a party but also against the jurisdiction of the Court itself in the sense that where a party is stopped per rem judicatam from bringing the same case before the Court, the jurisdiction of the Court is ousted.
He urged this Court to hold that the lower Court rightly upheld the plea of res judicata as contained in the ruling of the Upper Area Court, Okpo and accordingly dismiss this appeal as lacking in merit.
The Appellant’s Reply Brief on the arguments of Respondent’s in two issues formulated is a reharsh of the main Brief.
A Reply Brief is not an opportunity or gateway to another bite, at the Cherry. By Order 19 Rule 5 of Court of Appeal Rules, 2016 a Reply Brief is only to be filed to deal with raw points arising from Respondent’s Brief. The Appellant’s Reply Brief is hereby discountenanced.
To sustain a plea of res judicata, the party pleading it must satisfy the following conditions to wit:-
a. That the parties (or their privies as the case may be) are the same in the present case as in the previous case.
b. That the issue and subject matter are the same in the previous suit as in the present suit,
c. That the adjudications in the previous case must have been given by a Court of competent jurisdiction, and
d. That the previous decision must have finally decided the issues between the parties.
Failure to satisfy any of these conditions means failure of the plea in its entirety. (NKANU V ONUN (1977) 5 SC 13; DZUNGWE V GBISHE (1985) 2 NWLR (PT. 8) 528; UDO V OBOT (1989) 1 NWLR (PT. 95) 59 per KUTIGI, J5C at page 508 paras. G – H;
“I have carefully read through the record myself and agree entirely with the Court below that the plea of res judicata relied upon by the defendants in this case was made out. The issue and subject matter in the previous suit No. C/30/65 and the present suit No. HE/C/3/75 are the same. The parties and or their privies are also the same. The judgment of the Supreme Court (exhibit H) affirming the judgment of Calabar High Court (exhibit F) was the final judgment in the previous sit…”
Again from the two issues formulated by the Appellant the Appellant is of the vehement opinion that there can be no proof of res judicata when the lower Court did not take oral evidence from any person or persons to prove the elements of the defence of res judicata and because the lower Court did not consider the cases cited the judgment of the lower Court ought to be set aside.
I am of the view that where there are before the Court Certified True Copies of previous judgments of Courts of competent jurisdiction showing or encapsulating the ingredients of res judicata as between the parties the subject matter or privies to the parties; the Court can utilize them to compare with the processes filed in the current action between the parties, or their privies in order to discern if the cause of action in the current action has been adjudicated upon to finality against one of the parties, and the Court can thereby find that res judicata is proved or established rendering the current action incompetent without any need to lead or call oral evidence. See the case of MALLAM YUSUF JIMOH V MALLAM KARIMU AKANDE & ANOR (2009) 5 NWLR (PART 1135) 549 AT 575 E per CHUKWUMA-ENEH, JSC who said:-
“It is established in the case of Nwajuebo v. Alubua Anor (1974) NSCC (Vol. 9) 617; (1974) 12 SC 21 and, if I may restate, that where the principle of res judicata applies to conclude the plaintiff’s case that it would serve no useful purpose for the plaintiff to continue to lead further evidence in the case, It is not an uncommon practice in that instance for the defendant relying on the principle of res judicata to move the Court to have the plaintiff’s claim dismissed peremptorily on the ground of res judicata even without the court having to hear oral evidence at all from the defendants. In this matter, I have in addition to the record of appeal the advantage of both the briefs of the parties and their oral submissions in Court.
Again, I think it would be correct to say here that where the principle of res judicata has been pleaded in a case that its full effect is to oust the jurisdiction of the Court to hear the present matter before it as it is predicated on issue(s) or subject matter that has been adjudicated upon previously, In Such cases, it is permissible where the cases of parties are as clear as here that the issue of res judicata ought to be disposed of first as it would save valuable time of the Court as it touches on the jurisdiction of the Court. And this is moreso where it disposes of the entire matter and even as here, the appeal completely.”
And at page 578 F-H to 579 A – H his Lordship said:-
“On the issue of the instant land in dispute being the same as in the previous suit, an issue which must be satisfied, the appellants have raised the absence of a plan for a clearer identity of the land in dispute and its boundaries. I agree, in this respect, with the court below that the record have showed that the parties at the locus in quo have been ad idem on the identity of the land in dispute even though differently called Jaaju Olosunde by the appellants and Jaaju Gbagede by the respondents. The parties visited the locus with the trial court which observed thus:-
“Plaintiff conveyed us round the whole land. We saw the farms lands the economic trees and the villages mentioned in evidence. Witnesses showed us all they spoke about. We then returned to write our findings.”
The above remark is a clear pointer that both sides to this matter are ad idem as to the land in dispute and its boundaries inspite of the different names given by the parties to the land in dispute and its boundaries. The question in this instance is whether this issue should still stir up such a storm in this matter and in this Court as the appellants are urging. I have dealt with the question later on.
And, I think the dictum per Achike, JSC in Odofin v. Oni (2001) FWLR (Pt. 36) 807 at 818; (2001) 3 NWLR (Pt.701) 488 at 502 paras. C-D has summarized the attitude of the Court in circumstances as in this case. He said and I agree with him that:
‘… Of course, where both parties are familiar with, or know the land in dispute, the question of its identity or its certainly will cease to perplex the trial Court so also the appellate Court and neither party will be allowed to place a clog in the wheel of justice by mischievously raising the issue of identity in order to becloud what is otherwise a piece of land that is well-known to both parties.”
This admonition could not have come at a better time considering its aptness to the circumstances in this matter. The land in dispute here as far as demonstrated in the evidence before the trial court has been showed to be certain in its identity.
I agree with the lower Court that although a plan would have put more precision and save posterity much headache as to the subject-matter and its boundaries, the identity of the said land suffices as in this matter where the parties know the land in dispute and have in addition visited the locus in quo with the trial Court which took notes and made a sketch of the land and the parties have been ad idem on it. The identity of the land in dispute is in my opinion certain, it is duly settled. I have therefore not seen any justification for requiring a plan here. Afterall, the appellants, the plaintiffs at trial Court have not filed any plan in this case, nor have they raised any irregularities in the conduct of the locus in quo or otherwise challenged or faulted it i.e. as regards the identity of the land in dispute. Nor have the appellants cross-appealed the decision of the Upper Area Court on this issue. It cannot now be raised as an issue; it does not lie in their mouth to do so. It is belated.”
On failure of the lower Court to consider the authorities cited according to the Appellant’s learned Counsel I am of the solemn view that no miscarriage of justice has been shown to have arisen thereby. ?What is more an Appellate Court is only interested to see from the record whether the findings of the lower Court is amply supported by the evidence on record. I have calmly read through the record, the Appellants Brief of Argument and the Respondent Brief and I am of the solemn view that the judgment of the lower Court is supported by the evidence on the printed record. There is no miscarriage of justice. See ALHAJI UMARU SANDA NDAYAKO & ORS v. DANTORO & ORS (2004) 13 NWLR
“An appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons are, Where the judgment of the Court is right but the reasons are wrong, the appellate Court does not interfere, It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate court will interfere: see Abaye v. Ofili (1986) 1 NWLR (Pt. 15) 134 at 179; Ukejianya v. Uchendu 19 WACA 46. Since in the instant case, there was evidence on record to support the finding of service of exhibit NB/1 on the appellants the giving of a wrong reason by the court below in arriving at the same conclusion is of no moment.”
Issues 1 and 2 are resolved against the Appellant. The Appellant appeal is hereby dismissed. In the final analysis the judgment of the lower Court is hereby affirmed.
There will be no Order as to costs.
TINUADE AKOMOLAFE-WILSON,J.C.A.: I had the preview of the lead judgment of my learned brother, PETER OLABISI IGE, JCA.
I am in agreement with his reasoning and conclusion and orders reached therein.
EMMANUEL AKOMAYE AGIM J.C.A.: I had a preview of the judgment just delivered by my Learned brother, Lord Justice PETER OLABISI IGE, JCA.
I agree with the reasoning, conclusions and orders therein.
Appearances:
M. I. Balogun, Esq.For Appellant(s)
Dr. Maiyaki Theodore BalaFor Respondent(s)
