KABIRU MOHAMMED LIYAFA & ANOR v. ABDULMALIK ZUBAIRU & ORS (2015)

KABIRU MOHAMMED LIYAFA & ANOR v. ABDULMALIK ZUBAIRU & ORS

(2015)LCN/7852(CA)

In The Court of Appeal of Nigeria

On Thursday, the 30th day of April, 2015

CA/S/61/2013

RATIO

PRACTICE AND PROCEDURE: RES-JUDICATA; THE MEANING OF RES-JUDICATA, WHEN IT CAN BE RAISED AND THE FACTS THE PARTY RELYING ON IT MUST ESTABLISH

It is necessary to first examine what is meant by res-judicata. In Attorney-General of Nasarawa State V Attorney – General of Plateau State (2012) LPELR – SC. 214/2007 Adekeye JSC explained it thus:
“…in what circumstance can a plea of Res judicata be raised? Estoppel per rem judicatam otherwise known as estoppel by record arises where an issue of fact has been judicially determined in a final manner between the parties by a court or a tribunal having jurisdiction, concurrent or exclusive in the matter and the same issue comes directly in question in subsequent proceedings between the parties or their privies. The parties affected are stopped from bringing a fresh action before any Court on the same case and on the same issue already pronounced upon by the court in a previous action. For the plea to succeed, a party relying on it must establish the following facts – a) That the parties or their privies involved in both the previous and the proceedings in which the plea is raised are the same. b) That the claim or issue in dispute in both proceedings are the same. c) That the Res or the subject matter of the litigation in the two cases is the same. d) That the decision relied upon to support the plea is valid, subsisting and final. e) That the court that gave the previous decision relied upon to sustain the plea was a court of competent jurisdiction. The burden is on the party who sets up the defence of estoppel per rem judicatam to establish the above pre-conditions conclusively Balogun v. Ode (2007) 4 NWLR (Pt.1023) pg.1. Dagaci of Dere v. Dagaci of Ebuwa (2006) 7 NWLR (Pt.979) pg. 382. Igwego v. Ezeugo (1992) 6 NWLR (pt. 249) pg.501. Dakubo v. Omoni (1999) 8 NWLR (Pt.616) pg. 647. Oshodi v. Eyifunmi (2000) 7 SC (pt.11) pg.145. Ogunride v. Ajamogun (1992) 6 NWLR (Pt.246) pg. 156. The plea of Res judicata is used as a shield and not as a sword. As a successful plea constitutes a bar to any fresh action as between the parties or their privies. It is a plea, a bar and as evidence it is conclusive. Once a plea of Res judicata has been established, the jurisdiction of the court would be ousted. Where the plea of estoppel per rem judicatam is raised, the court in determining whether the issues, the subject matter of the two cases and the parties are same is permitted to study the pleadings, the proceedings and the judgment in the previous proceeding. The court may also examine the reasons for the judgment and other relevant facts to discern what was in issue in the previous case. It is therefore a question of fact whether the parties and their privies, the fact in issue and the subject matter of the claim are the same in both the previous and the present case.” per. TUNDE O. AWOTOYE, J.C.A.

PRACTICE AND PROCEDURE: THE DOCTRINE OF LIS PENDENS; WHAT THE DOCTRINE OF LIS PENDENS ENTAILS
Again AMAECHI V INEC [2008] 5 NWLR (PT.1080) 227 at 445-446 Oguntade JSC, while delivering the leading judgment of the Supreme Court stated as follows:
“The doctrine of lis pendens finds expression in the assertion that it prevents any transfer of any right or the taking of any steps capable of foisting a state of helplessness and/or helplessness on the parties or the court during the pendency in court of an action or even after. By that doctrine, the law does not allow litigating parties or give to them during the currency of the litigation involving the rights in it so as to prejudice any of the litigating parties. The doctrine negates and disallow any transfer of rights or interest in any subject matter that is being litigated upon during the pendency of litigation in respect of the said subject-matter. The well known maxim is “pendent elite nihil innovetur” meaning: during a litigation nothing new should be introduced. Going by the facts of this case that doctrine applies. The declaration of the respondent as the Governor of Rivers State founded upon an illegal and/or unlawful election was null and void [DAN-JUMBO V. DAN JUMBO (1999) 11 NWLR (PT 627) 445 referred to and applied]”
The offending elections in OBI’s case (supra) and AMECHI’S case respectively were nullified by the Apex Court. No order needed to have been made or served on the Respondent before lis pendens became operative. per. TUNDE O. AWOTOYE, J.C.A.

APPEAL: NOTICE OF CONTENTION; WHAT THE NOTICE OF CONTENTION MUST SPECIFY
Order 9 of the Court of Appeal Rules 2011 provides for Respondent’s Notice of Contention must specify “The precise form of the order which he proposes to ask the court to make or to make in that event, as the case may be.” See Order 9 Rule 1 of the Rules.
In my respectful view, a Notice that fails to specify the order proposed for the court to make is defective and cannot be relied on.
One is more fortified in this view when one considers the provision of Order 9 Rule 3 of the Rules of this Court which reads thus: –
“Except with the leave of the Court, a Respondent shall not be entitled on the hearing of the appeal to contend that the decision of the court below should be varied upon grounds not specified in a notice given under this Rule, to apply for any relief not so specified or to support the decision of the court below upon any grounds not relied upon by that court or specified in such a notice.” per. TUNDE O. AWOTOYE, J.C.A.

Juctice

PAUL ADAMU GALINJE Juctice of The Court of Appeal of Nigeria

TUNDE O. AWOTOYE Juctice of The Court of Appeal of Nigeria

MUHAMMED L. SHUAIBU Juctice of The Court of Appeal of Nigeria

Between

KABIRU MOHAMMED LIYAFA & ANORAppellant(s)

AND

ABDULMALIK ZUBAIRU & ORSRespondent(s)

TUNDE O. AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the appellants on 22/8/2012 vide their Notice of Appeal.

The 6 grounds of appeal (shorn of the particulars) are:-

“GROUND 1

The decision of the trial court is unreasonable, unwanted, and unsupportable and against the weight of evidence adduced.

GROUND 2

The learned trial Judge misdirected himself and consequently arrived at a wrong decision which has occasioned a grave miscarriage of Juctice when he held that: –

“Though exhibits 3 and 4 were exhibited in support of the Originating processes, no court order was exhibited in respect of the motion No.ZMS/GS/M.121/2012 and that there was no submission in respect of the court order drawn up as regards to the said Motion. A party can be held liable to disobedience of a court order, if the conduct precedes the order of court. In the latter situation, there is no disobedience because there is in law and in fact nothing to disobey as there was no order to disobey. See AKINPELU V. ADEGBORE (2008) NSCQR Volume 34 page 434 at 431.”

GROUND 3

The learned trial Judge erred in law in holding that the plea of res judicata was applicable to the instant case and thereby came to a wrong conclusion, occasioning a serious miscarriage of Juctice.

GROUND 4

The learned trial Judge erred in law in dismissing the Appellants’ case after upholding the plea of res judicata, thereby occasioning a miscarriage of Juctice against the Appellants.

GROUND 5

The learned trial Judge erred in law, in suo motu raising the issue of the competence of the question for determination formulated by the Appellants and dismissing the suit based on the issue without hearing from the parties and thereby occasioned a miscarriage of Juctice.

GROUND 6

The learned trial court erred in law in failing to pronounce on the Appellants’ complaint on the propriety of the Respondents conducting an election during the pendency of the actions in Exhibits 3 and 4, thereby abdicating its judicial responsibility.”

This appeal is against the judgment of Hon. Juctice Bello M. Tukur of High Court 4 Gusau Zamfara State delivered on 23/07/2012.

The plaintiffs had instituted an action at the lower court by originating summons claiming as follows: –

“1. A declaration that the election of the 1st – 7th Defendants as the State Executive Council of Nigeria Union of Local Government Employees (NULGE), Zamfara State Branch under the supervision of the 8th Defendant on 10th July, 2010 is unconstitutional, illegal, unlawful, null and void and of no legal effect whatsoever.

2. An order of this Hon. Court nullifying the election of the 1st – 7th Defendants as the State Executive Council of Nigeria Union of Local Government Employees conducted on the 10th July, 2010.

3. An order mandating the Defendants to forthwith render account of all check-off dues belonging to NULGE which they received from the Zamfara State Ministry of Local Government and Chieftaincy Affairs and the loan of N30,000,000.00 (Thirty Million Naira) or any other amount collected by the Defendants and to deposit the total sum collected since July, 2010 till date with the Chief Registrar of High Court of Juctice, Zamfara State pending the determination of Suit No: ZMS/GS/62/2009.

4. An order restoring forthwith the Plaintiffs as the State Executive Council of Nigeria Union of Local Government Employees (NULGE), Zamfara State Branch.

5. An order of perpetual injunction restraining the Defendants from whosoever parading, holding out, presenting, addressing and or referring to themselves as the State Executive Council of NULGE, Zamfara State Branch.”

After hearing the parties, the learned trial Judge gave judgment inter-alia thus:

“I have carefully gone through the amended originating summons particularly the endorsement; there was no prayer as to the validity or otherwise of the election of 10th July, 2010. Be that as it may, if the election was held during the pendency of motion No.ZMS/GS/M/121/2010 such conduct is detested and must be condemned as rightly done by learned brother. However, relying on the authority of Akupelu Supra, I hold that this case lacks merit and it is accordingly dismissed.”

The Respondents also filed NOTICE THAT THE DECISION OF COURT BELOW BE AFFIRMED ON GROUNDS OTHER THAN THOSE RELIED ON BY THE COURT BELOW. The said notice was deemed filed on 1/12/2014.

The record of appeal in this appeal was deemed compiled and transmitted to this court on 28/5/2013. Subsequently, parties filed and exchanged briefs.

The appellant’s brief of argument was deemed filed on 24/6/2014. The Respondents’ brief of argument was later deemed filed on 5/11/2014. The Appellants’ Reply brief was filed on 6/11/2014.

In their brief, the learned counsel for the appellants, PWAHOMDI L.M. formulated three issues for determination; to wit: –

“1. Whether the learned trial Judge was right having regard to Exhibit 9 to have upheld the plea of res judicata and dismissing the Appellants’ case in the circumstances (Grounds 3 and 4 of the appeal)

2. Whether having regard to the affidavit and documentary evidence before the learned trial Judge, the Appellants were not entitled to judgment? (Grounds 1, 2 and 6 of the Grounds of Appeal)

3. Whether it was competent for the learned trial Judge to raise the issue as to competence of the question for determination suo motu and proceeded to dismiss the Appellants’ case on the same without allowing parties to address on the said issue? (Ground 5 of the Grounds of Appeal)”

On issue No.1, learned appellant’s counsel submitted that the learned trial judge fell into grave error to have sustained the plea of res-judicata; urged the court to hold that the Respondents having failed to meet the conditions to sustain their plea of res-judicata, the learned trial Judge erred to uphold the plea of res-judicata. He submitted further that the plea of res-judicata went to the jurisdiction of the trial court and that it was trite law that when a court came to the conclusion that it had no jurisdiction to entertain the suit, it would strike out and not dismiss the suit. He cited:

1. NEPA V EDEGBERO & 15 ORS [2002] 18 NWLR (PT.798) 79 etc.

2. JIMOH V AKANDE (2009) 18 WRN 1 at 27

3. UDO V CROSS RIVER STATE NEWSPAPER CORPORATION [2001] 14 NWLR Pt. (732) 116.

He contended further that the learned trial Judge was in grave error to proceed with the consideration of the Appellant’s claim after upholding the plea of res judicata. He urged the court to resolve issue No.1 in favour of the Appellants.

On issue No.2, learned appellant’s counsel submitted that the decision of the learned trial Judge on the validity or otherwise of the election of 10/7/2010 was out of time with the evidence placed before the court resulting from the failure of the learned trial Judge to evaluate and assess the affidavit of the originating summons, the counter- affidavit and the reply.

He added that from the affidavit and documentary evidence from the printed record, it was not in dispute that parties had submitted to the jurisdiction of the court when the Respondents went on to conduct the election of 10/7/2010. He contended that it was trite law that once the court was seized of a matter, no party had a right to take the matter into his own hands. He cited MILITARY GOVERNOR LAGOS STATE V OJUKWU (1986) 1 NWLR (Pt 18) 621 etc.

He submitted that the rule against self-help was to the effect that when parties to a dispute had submitted their disputes to a court for adjudication, none of them could resort to a right of self-help or do anything to suggest an attempt to destroy the res in dispute. He relied on AGWAR AMGBO V UBN [2001] 4 NWLR (Pt 702) 1 at 23 and other cases.

He urged the court to resolve issue No.2 in favour of the appellants.

On issue No.3, Mr. Pwahomdi for the appellants submitted that the learned trial Judge erred when he raised suo motu, the issue for determination and without hearing the parties, dismissed the appellants’ claims. He cited

1. SPASCO VEHICLE & PLANT HIRE CO. V. AIRLINE (NIG) LTD (1995) 8 NWLR (PT 416) 655 at 669

2. SAUDE V ABDULLAHI (1989) 4 NWLR (PT 116) 387

3. AYORINDE V AYORINDE (2011) 17 WRN 74 at 92-93

4. NIG. PORTS PLC V DUNCAN M.V. [NIG] LTD (2011) 6WRN 88 at 122 – 123

5. EJEZIE V ANUWU (2008) 47 WRN 1 at 28

He urged the court to resolve the issue in favour of the appellants.

The Respondents’ brief of argument was settled by MRD LABARAN, Learned counsel for the Respondents. He adopted the issues formulated by the appellants’ counsel and proceeded further to formulate another issue out of the sole ground contained in the Respondents’ notice of intention to contend that the decision of the court below be affirmed dated 11/6/2013.

This other issue is: –

Whether the appellants were in disobedience of a lawful, valid subsisting order of High Court of Juctice Zamfara State as at the time they instituted suit N. ZMS/GS/17/2011 which gave rise to this Appeal and therefore the matter was not justifiable on account of having lost the right to be heard by the court on account of the said disobedience.

On issue No.1, learned Respondent’s counsel submitted that the learned trial judge was right in upholding the preliminary objection and dismissing the suit on ground of res-judicata.
He referred to several judicial authorities including MUDA ANWOYI & ORS V JOHN BANKOLE SHODEKE & ORS [2006] 6SCM 1 and submitted that a further consideration of ZAS/GS/39/2010 (Exhibit 9) and suit No. ZMS/GS/17/2011 would show that all the conditions for res-judicata were satisfied by the Respondents. He urged the court to look at the 2 suits and the reliefs.

He further submitted that the formulation of a fresh claim as done by the Appellants could not defeat the operation of principles of res judicata. He contended that the Appellants were rightly stopped from re-litigating the same cause under the guise of instituting a new claim. He referred to:

i. MADUKOLU & ORS V NKEMDILIM [1962] 1 ALL NLR 587 at 595

ii. EKAETE BASSEY OKPOSIN & ORS V ASSAM (MRS) [2005] 10-11 SCM 283 and other cases.

He contended further that the finding in Suit No. ZMS/GS/39/2010 could not ground suit No. ZMS/GS/17/2011 as the appellants did not relate their claims to the subsistence of motion suit No.ZMS/GS/M121/2010. He submitted that the appellants presented their case in total disregard of the findings of the learned trial Judge in Suit No.ZMS/GS/39/2010.

He concluded that the lower court was right in dismissing the claim. He cited further MUDA ANWOYI & ORS V JOHN SHODEKE [2006] 6 SCM 1.

On issue No.2, Learned Respondents’ counsel submitted that courts are bound by the pleadings before them and should confine themselves to the case presented by the parties – He referred to CHUKWU V A-G RIVERS STATE [2012] 2 MJSC (PT 11) 65 at 73. Learned counsel referred to Sections 134, 135 and 137 of the Evidence Act 2011 as amended and contended that the decision of the learned trial Judge was right and valid pointing out that evidence which was at variance with claims put forward by a party could not be the basis of determining the claim of the parties. He cited AGBO OLA V BANK FOR AFRICA PLC & ORS [2011] 4 SCM 31 at 35.

He submitted that the appellants did not come to equity with clean hands and so the rule against self help would not be available to them. He cited IBRAHIM V OSUNDE & ORS [2009] 2SCM 80 at 82; ENEKWE V INTERNATIONAL MERCHANT BANK (2006) 28 NSC QLR 594 at 599.

On issue No.3, Learned counsel conceded that it was wrong for the learned trial Judge to raise and determine the issue of competence of the only question for determination without calling parties to address the court. He however submitted that this was not the basis for the dismissal of the appellant’s case. He cited SAUDE V ABDULLAHI (1989) 7 SCNJ 216 at 229; EJEZIE V ANUWU [2008] 6SCM 85 at 115.

He urged the court to resolve the issue in favour of the Respondents.

On issue No.4, learned Respondents’ counsel referred to the earlier order of High Court IV granted on 30/10/2009 restraining the appellants from conducting the election of 3/11/2009. He pointed out the said election was conducted despite the order. He noted also that the products of the election were the appellants.

He referred to the findings and pronouncements of the learned trial Judge in Suit No.ZMS/GS/39/2010 at pages 184-185 which was to the effect that the appellants’ conduct was “illegal, null, void and of no legal effect”.

He submitted that the appellants ought to have challenged the said decision on appeal but they did not. Instead they proceeded to file ZMS/GS/17/2011 which brought this present appeal.

Learned counsel submitted that the appellants by choosing to disobey a valid subsisting order of court of competent jurisdiction had shut themselves out from the court. He cited OSULA V LAWAL (1995) 3 NWLR (PT 382) 130; MILITARY GOVERNOR, LAGOS STATE & ORS V OJUKWU [1986] NWLR (PT 18) 621 and other cases.

He submitted further that an act which was illegal, null and void could never give rise to any interest or right beneficial to a party who was guilty of such conduct.

He cited AGIP PETROL INTERNATIONAL & ORS V AGIP [NIGERIA] LTD (2010) 12 SCM 1 and KOLAWOLE V OLONI (2009) 11 WRN 27.

He urged the court to resolve this issue in favour of the Respondent.

As afore stated, the Respondents filed Notice of Intention to contend the decision of court below be affirmed on grounds other than those relied on by the court below, on 13/6/2013 but deemed filed on 1/12/14.

By the notice, the Respondents raised one ground on which they relied to wit: –

“GROUND ONE

By the Appellants’ then Plaintiffs’ act of refusing to obey the Order of the High Court of Juctice, Zamfara State presided over by Juctice M. Ibrahim Anka dated 30th October, 2009 which restrained the Appellants from conducting the election, which purportedly produced the Appellants/then Plaintiffs as officials of Nigerian Union of Local Government Employees (NULGE) Zamfara State branch on, the 03/111 2009 on the basis of which Suit No.ZMS/GSI17/2011 was prosecuted wherein the Appellants/then Plaintiffs sought for amongst others, to be restored and the Defendants election be nullified has robbed the Appellants/Plaintiffs of, not only the cause of action but also any right to approach the Court for the reliefs sought without purging themselves of the contemptuous act which brought them (Appellants/ then Plaintiffs) to Office.”

Learned counsel orally argued the ground in the Notice.

He submitted that the appellants were contemnors who should purge themselves before coming to court. He added that they had, by reason of their disobedience of a subsisting court order shut themselves out of the temple of Juctice. He urged the court to affirm the decision of the lower court.

The Appellants’ Reply brief dated 6/11/2014 was filed on the same date.

Learned appellants’ counsel submitted that the Respondents’ Notice was not properly before the court. He urged the court to discountenance the process. He submitted that where a Respondent did not file a cross-appeal nor Respondents’ Notice he would not have the freedom to raise issues for determination which had no relevance to the grounds of appeal. He cited ONIFADE V OLAYIWOLA (1990) 7 NWLR (PT 161) 130 at 157; EZUKWU V UKACHUKWU (2004) 17 NWLR (PT 902) 227 and some other cases.

Learned appellants’ counsel further submitted that the Respondents were seeking to vary the specific holding and finding of the trial court on a point which could not be done in law, by way of Respondents’ notice. He relied on

1. AKAOSE V NWOSU (1997) 1 NWLR (PT 482) 478 and others
He urged the court to hold the Notice incompetent.

He further replied to points of law raised in the Respondents’ brief. He submitted that the Respondent had not answered all the material points of substance contained in the Appellants’ brief of argument which amounted to conceding the issues. He cited EVARWODOKE V UNIVERSITY OF BENIN TEACHING HOSPITAL MANAGEMENT 1993 2 NWLR (PT.277) 590.

He submitted that the key issue in this appeal is that the election of 10/7/2010 was conducted by the Respondents despite the fact that they had submitted to the jurisdiction of the court in ZMS/GS/39/2010 and Motion No.ZSM/GS/M121/2010.

He finally urged the court to allow the appeal.

I have carefully considered the submissions of learned counsel on both sides as well as the contents of the record of appeal.

I have deeply considered the issues formulated by both parties. I shall take issues as formulated by the parties for the determination of this appeal in sequence as follows: –

ISSUE NO.1

Whether the learned trial Judge was right having regard to Exhibit 9 to have upheld the plea of res-judicata and dismissed the Appellants’ case in the circumstances?

What is Exhibit 9? Exhibit 9 is the judgment in ZMS/GS/39/2010 KABIRU MOH’D LIYAFA & ANOR V ABDUL MALIK ZUBAIRU & 8 ORS.

In Suit ZMS/GS/39/2010, the plaintiffs sought the following reliefs against the Defendants jointly and severally.

“a) A declaration that the purported 4th Quadrennial State delegates Conference of Nigerian Union of Local Government Employees (NULGE) Zamfara State Branch held on 10th July, 2010 is Ultra Vires, null and void as it negates the provision of both NULGE Constitution and the 1999 Constitution of the Federal Republic of Nigeria.

b) A declaration that it is unconstitutional, illegal and unlawful for the 15th – 18th Defendants to be elected in an election conducted under the supervision of the 9th Defendant on 10th July, 2010 after the Plaintiffs had been duly elected and Sworn in at the 4th State Quadrennial Delegate Conference of Nigerian Union of Local Government Employees (NULGE) Zamfara State Branch on 3rd November, 2009 in accordance with Rule 10 (ix) and (xiv) of the Reviewed NULGE Constitution 2005.

c) A declaration that the Plaintiffs, having been duly elected and sworn in at 4th State Quadrennial Delegates Conference of NULGE Zamfara State Branch held on 3rd November, 2009 are the only lawful State Executive Council to run the affairs of NULGE in Zamfara State in the next four years from 3rd November, 2009 pursuant to Rule 10 (ix) and (xiv) of the Reviewed NULGE Constitution, 2009.

d) An order of perpetual injunction restraining the Defendants jointly and severally by themselves, their agents, privies or assign whatsoever called from interfering with the running of the affairs of NULGE Zamfara State Branch by the Plaintiffs until the effluxion of their tenure in accordance with Rule 10 (ix) of the Reviewed NULGE Constitution 2005.” (sic)

The learned trial Judge in suit, Gummi J. on 26/1/2011 gave judgment as follows:

“In the final analysis I hold that: –
The November 3rd, 2009 election which provided the base upon which the Plaintiffs claim to the reliefs sought having been conducted in violation of a subsisting order of High Court IV Gusau which was granted on 30th October, 2009 cannot provide a legal basis for the grant of reliefs A, B, C & D claimed by the Plaintiff.
On that basis, I answer the 3 questions posed for my determination as follows: –
No – if the 3rd November election was validly conducted
No – if the 3rd November election was validly conducted
No.
The Plaintiffs’ Counsel have asked me to nullify the 10th 2010 election of the Defendants because it was conducted while Motion on Notice suit No.ZMS/GS/M.121/2010 was pending before this court. No doubt this fact was reflected in paragraph 2(xi) of the Plaintiffs affidavit in support. In fact this court have also taken judicial notice of that fact, but nevertheless courts do not operate like Father Christmas, granting reliefs not asked. The originating process never asked for that relief or made that fact an issue for determination. But the Plaintiffs are at liberty to ventilate that issue in a separate proceedings if they so wish. Suffice to say, the conduct of the Defendants is more reprehensive, rash and unbecoming of persons seeking elective office for service not personal gain. I condemn their conduct for being ungentlemanly.
In the end, reliefs A, B, C & D refused and Suit dismissed for lack of merit.”

The Learned trial Judge in case No.ZMS/GS/17/2011, now on appeal, had held in his judgment thus;

It is instructive to note that the relief sought on exhibit 1 which is the originating summons and reliefs set out in exhibit 9 which is the judgment of the High Court II, Gusau, Holden at Gusau on 26th January, 2011 delivered by Hon Juctice N.U. Gummi, the parties are the same, the same question was decided and the decision said to create the estoppel was final. The above is a finding of facts which are based on credible and reliable evidence and neither perverse nor can they be faulted. Accordingly the plea of res-judicata is hereby sustained/upheld.

The only issue not affected by the plea of res-judicata is determination of the validity or otherwise of the election of 10th July, 2010 having regard to the pendency of suit No.ZMS/GS/121/2010. It is clear from exhibit 4 i.e. counter affidavit of the Respondent/Defendants against exhibit 3 which is the Motion of the Plaintiffs that the Defendants are aware of the pendency of Motion No:ZMS/GS/M.121/2011. A Defendant having being notified of the pendency of a suit seeking an injunction against him, even though a temporary injunction be not granted he acts at his peril, see Military Governor LAGOS STATE VS. OJUKWU (2001) FWLR part 50 page. 1779.

Though exhibit 3 & 4 were exhibited in support of the originating process, no court order was exhibited in respect of the Motion No:ZMS/GS/M.121/2011 and that there was no submission in respect of the court order drawn up as regards to the said Motion. A party can be held liable to disobedience of court, if the disobeying conduct comes after the order of court. A party can not be held liable of disobedience of a court order, if the conduct precedes the order of court. In the latter situation, there is no disobedience because there is in law and in fact nothing to disobey as there was no order to disobey. See AKINPELU VS. ADEGBORE (2008) NSCQR Volume 34 page 434 at 437.

Furthermore, a close examination of the relief sought by the Plaintiffs on the originating process, it is quite clear that the issue formulated for determination was not formulated from the prayers. For an issue for determination to be competent, it must be related to a relief sought: where this is not so, such issue and argument based on it are incompetent. See OGUDU VS. THE STATE (2011) 48 NSCQR page 39. I have carefully gone through the amended originating summons particularly the endorsement there was no prayer as to the validity or otherwise of the election of 10th July, 2010. Be that as it may, if the elections was held during the pendency of Motion No ZMS/GS/M.121 12010 such conduct is detested and must be condemned as rightly done by my learned brother. However, relying on the authority of Akinpelu Supra.
I hold that this case lacks merit and it is accordingly dismissed.” (Sic)

Was the learned trial Judge right to have upheld the plea of res-judicata and dismissed the Appellants’ case? It is necessary to first examine what is meant by res-judicata.
In Attorney-General of Nasarawa State V Attorney – General of Plateau State (2012) LPELR – SC. 214/2007 Adekeye JSC explained it thus:
“…in what circumstance can a plea of Res judicata be raised? Estoppel per rem judicatam otherwise known as estoppel by record arises where an issue of fact has been judicially determined in a final manner between the parties by a court or a tribunal having jurisdiction, concurrent or exclusive in the matter and the same issue comes directly in question in subsequent proceedings between the parties or their privies. The parties affected are stopped from bringing a fresh action before any Court on the same case and on the same issue already pronounced upon by the court in a previous action. For the plea to succeed, a party relying on it must establish the following facts – a) That the parties or their privies involved in both the previous and the proceedings in which the plea is raised are the same. b) That the claim or issue in dispute in both proceedings are the same. c) That the Res or the subject matter of the litigation in the two cases is the same. d) That the decision relied upon to support the plea is valid, subsisting and final. e) That the court that gave the previous decision relied upon to sustain the plea was a court of competent jurisdiction.
The burden is on the party who sets up the defence of estoppel per rem judicatam to establish the above pre-conditions conclusively Balogun v. Ode (2007) 4 NWLR (Pt.1023) pg.1. Dagaci of Dere v. Dagaci of Ebuwa (2006) 7 NWLR (Pt.979) pg. 382. Igwego v. Ezeugo (1992) 6 NWLR (pt. 249) pg.501. Dakubo v. Omoni (1999) 8 NWLR (Pt.616) pg. 647. Oshodi v. Eyifunmi (2000) 7 SC (pt.11) pg.145. Ogunride v. Ajamogun (1992) 6 NWLR (Pt.246) pg. 156. The plea of Res judicata is used as a shield and not as a sword. As a successful plea constitutes a bar to any fresh action as between the parties or their privies. It is a plea, a bar and as evidence it is conclusive. Once a plea of Res judicata has been established, the jurisdiction of the court would be ousted. Where the plea of estoppel per rem judicatam is raised, the court in determining whether the issues, the subject matter of the two cases and the parties are same is permitted to study the pleadings, the proceedings and the judgment in the previous proceeding. The court may also examine the reasons for the judgment and other relevant facts to discern what was in issue in the previous case. It is therefore a question of fact whether the parties and their privies, the fact in issue and the subject matter of the claim are the same in both the previous and the present case.”

I have gone through the originating summons filed in each of the cases, the issues formulated the names of the parties, the averments in the affidavit and the essence of the two judgments i.e. suit 25M/GS/39/2010 and Suit No.25M/GS/17/2011.

The reliefs sought in the two suits and the issues formulated in each of the suits must be juxtaposed and compared in order to determine whether or not the plea of res judicata should have been upheld by the lower court.

The issue formulated by counsel for the plaintiff in the case now on appeal gave the suit a distinct different flavour from the suit in ZMS/GS/39/2010.

The issue formulated was:

“Whether having regard to the pendency of the suit No.ZSM/GS/M/21/2010 and suit No. ZMS/GS/62/2009 the purported election of the 1st – 7th Defendants as the State Executive Council of Nigeria Union of Local Government Employees [NULGE] Zamfara State Branch under the suspension of the 8th Defendants on 10/7/2010 is not unconstitutional, illegal, unlawful, null and void and of no effect whatsoever.”

This made ZMS/GS/39/2010 different and distinct from the case now on appeal. It seems ZMS/GS/17/2011 was filed as a follow up to the decision in ZSM/GS/39/2010.

Order 6 of the Sokoto State High Court Civil Procedure Rules provided for the originating summons procedure Order 6 Rule 3 of the said Rules provide
“Every originating summons shall include a statement of the questions on which the plaintiff seeks the determination or the direction of the court or as the case may be, concise statement of the relief or remedy claimed in the proceedings begun by the originating summons with sufficient particulars to identify the cause or causes of action in respect of which the plaintiff claims that relief or remedy.”
The sufficient particulars as required by the Rules are provided for in an affidavit supporting the summons. According to Belgore JSC in FAMFA OIL LTD V A – G FEDERATION (2003) 18 NWLR (PT 852) 453 the originating summons must be supported by affidavit of facts. It is therefore my respectful view that in identifying the issues for determination in an action commenced by originating summons, the endorsement on the summons as well as the averments in the affidavit filed by both parties have to be considered. Had the lower court in this appeal done this it would not have had any difficulty in creating a distinction between ZMS/GS/39/2010 which was earlier determined and ZMS/GS/17/2011 now on appeal. The issues are different.

The question sought to be determined as per the amended originating summons is:

“Whether having regard to the pendency of suit No. ZMS/GS/M.121/2010 and suit No.ZMS/GS/62/2009 the purported election of the 1st – 7th Defendants as, the State Executive Council of Nigeria Union of Local Government Employees (NULGE) Zamfara State branch under the supervision of the 8th Defendant on 10/7/2010 is not unconstitutional, illegal, unlawful, null and void and of no legal effect whatsoever.”

In consequence, the plaintiffs sought the following reliefs:

2. An order of this Hon. Court nullifying the election of the 1st – 7th Defendants as the State Executive Council of Nigeria Union of Local Government Employees conducted on the 10th July, 2010.

4. An order resorting forthwith the Plaintiffs as the State Executive Council of Nigeria Union of Local Government Employees (NULGE), Zamfara State Branch.

Clearly the plea of res judicata was wrongly, with due respect, upheld by the lower court. I resolve this issue in favour of the appellants.

ISSUE NO.2

Whether having regard to the affidavit and documentary evidence before the learned trial Judge the Appellants were not entitled to judgments?
I have deeply considered reasons given by the learned trial Judge and the averments in the various affidavits filed as well as the submissions of counsel. It is not in dispute that the election of 10/7/2010 was conducted during the pendency of suit No. ZMS/GS/3121/2010. ZMS/GS/M121/2010 was in respect of a motion on notice filed by the plaintiffs seeking as follows:
“An order of interlocutory injunction restraining the respondents whether by themselves or through their representatives, servants, agents, privies or any name whatsoever called from conducting election into the offices of Nigerian Union of Local Government Employees, Zamfara State Branch on 17/6/2010 or any other date whatsoever pending the determination of suit No. ZMS/GS/62/2009 now pending before High Court 2 Gusau.”
A similar situation arose in OBI V INEC & ORS [2007] 11 NWLR part 1046 page, 436. on page 561, KATSINA – ALU JSC (as he then was) held while delivering the leading judgment of the Apex Court:
“I now consider the orders to make. The plaintiff/appellant had in his claim before the High Court sought both declaratory and injunctive reliefs directed at protecting his four year term of office. In its effect, the claim is another way that his term of office extends beyond May, 2007. However the 1st respondent in spite of its awareness that the case was still pending in court went on to conduct the purported election.
This court and indeed any court ought not to permit its processes to be treated with disdain. I therefore have the duty to ensure that the plaintiff/appellant’s appeal is not rendered nugatory. I therefore make the following declaration and order –
1) That the office of Governor of Anambra State was not vacant as at 29/05/2007
2) It is ordered that the 5th Respondent, Dr. Any Uba should vacate the office of the Governor of Anambra State with immediate effect to enable the plaintiff/appellant Mr. Peter Obi to exhaust his term of office.”
Again AMAECHI V INEC [2008] 5 NWLR (PT.1080) 227 at 445-446 Oguntade JSC, while delivering the leading judgment of the Supreme Court stated as follows:
“The doctrine of lis pendens finds expression in the assertion that it prevents any transfer of any right or the taking of any steps capable of foisting a state of helplessness and/or helplessness on the parties or the court during the pendency in court of an action or even after. By that doctrine, the law does not allow litigating parties or give to them during the currency of the litigation involving the rights in it so as to prejudice any of the litigating parties. The doctrine negates and disallow any transfer of rights or interest in any subject matter that is being litigated upon during the pendency of litigation in respect of the said subject-matter. The well known maxim is “pendent elite nihil innovetur” meaning: during a litigation nothing new should be introduced. Going by the facts of this case that doctrine applies. The declaration of the respondent as the Governor of Rivers State founded upon an illegal and/or unlawful election was null and void [DAN-JUMBO V. DAN JUMBO (1999) 11 NWLR (PT 627) 445 referred to and applied]”
The offending elections in OBI’s case (supra) and AMECHI’S case respectively were nullified by the Apex Court. No order needed to have been made or served on the Respondent before lis pendens became operative.
I need at this juncture to consider the submission of learned counsel for the Respondent on the Notice of Intention to Contend the Decision of Court Below Be Affirmed on GROUNDS OTHER THAN THOSE RELIED UPON.
Order 9 of the Court of Appeal Rules 2011 provides for Respondent’s Notice of Contention must specify “The precise form of the order which he proposes to ask the court to make or to make in that event, as the case may be.” See Order 9 Rule 1 of the Rules.
In my respectful view, a Notice that fails to specify the order proposed for the court to make is defective and cannot be relied on.
One is more fortified in this view when one considers the provision of Order 9 Rule 3 of the Rules of this Court which reads thus: –
“Except with the leave of the Court, a Respondent shall not be entitled on the hearing of the appeal to contend that the decision of the court below should be varied upon grounds not specified in a notice given under this Rule, to apply for any relief not so specified or to support the decision of the court below upon any grounds not relied upon by that court or specified in such a notice.”
It follows from the above that the Respondent cannot apply for a relief not so specified in the Notice; such a Respondent is so far as it concerns the Notice of Contention becomes incapacitated, handicapped and the Notice itself is incompetent and cannot be helped. This unfortunately shall be the fate of the Notice of Contention of the Respondents in this appeal. There is no specified relief applied for. The Notice therefore becomes still-born.
In view of the decisions of the Supreme Court in OBI’s case (Supra) and Amaechi’s case (Supra), I have no hesitation in resolving issue No.2 in favour of the appellants. If the election, and I so hold, of 10/7/2010 is illegal and void, then other reliefs 1, 2, 3 & 5 sought by the plaintiffs/appellants must be upheld, since they are intertwined and inter related as Respondents were not validly in office.

Issue No.3

Whether it was competent for the learned trial Judge to raise the issue as to competence of the question for determination suo motu and proceeded to dismiss the appellant’s case on the same without allowing parties to address on the said issue.

The practice of a court raising a point suo motu and deciding the issue without first hearing the parties on it has been deprecated by the court in numerous cases. See OBAWOLE & ANOR V WILLIAMS (1996) 10 NWLR (PT 477) 146; UNIVERSITY OF CALABAR V ESSIEN (1996) 10 NWLR (PT 477) 225; YARADUA & ORS V YAN DOMA & ORS [2014] LPELR SC 4/2014 [CONSOLIDATED].

The learned trial Judge raised the issue of competence of the only question for determination without allowing the parties to address on it. This in my respectful view was wrong.

However it was not the reason for the dismissal of the suit at the lower court.

I resolve this issue in favour of the Respondent.

In the circumstance, this appeal succeeds in part. The judgment of the court below delivered on 23/7/2012 is hereby set aside. In its place I hereby grant reliefs 1, 2, 3, and 5 of the originating summons. Relief No.4 is hereby refused having regard to the decision of Gummi JSC in ZMS/GS/39/2010 (Exhibit 9).

By virtue of the powers conferred upon this Court under Section 15 of the Court of Appeal Act 2004, I hereby order that the appropriate organ under the Constitution of NULGE (Nigeria Union of Local Government Employees) is hereby ordered to organize fresh constitutional election into the offices of NULGE Zamfara State Branch having regard to the invalid elections of 3/11/2009 and 10/7/2010 respectively.

No order as to costs.

PAUL ADAMU GALINJE, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, Awotoye JCA and I agree with the reasoning contained therein and the conclusion arrived thereat.

I have nothing useful to add as my learned brother has sufficiently and efficiently treated all the issues submitted for consideration.

I allow the appeal in part and endorse all the consequential orders made therein, including order as to cost.

MUHAMMED L. SHUAIBU, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother, Tunde O. Awotoye JCA.

I am in full agreement with reasoning and conclusion therein.

I also allow the appeal in part and hereby set aside the decision of the court below delivered on 23/7/2012. Consequently, the Nigeria Union of Local Government Employees, NULGE is hereby ordered to organize fresh election into the offices of NULGE, Zamfara State Branch in view of the invalidity of the previous elections held on 3/11/2009 and 10/7/2010.

Appearances

PWAHOMDI L.M. For Appellant

AND

MRD LABARAN For Respondent