MAKOSHI DANIEL v. SENATOR (DR) ALEX KADIRI & Anor
(2010)LCN/4203(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 16th day of June, 2010
CA/A/95/04
RATIO
PARTY: WHETHER A PERSON WHO IS NOT A PARTY TO A SUIT CAN BE BOUND BY THE RESULT OF THE ACTION
The position of the law is very clear on the fact that a person who is not a party to a suit is not bound by the result of the action. Thus, no person is to be adversely affected by a Judgment, order or decree of a Court in an action to which he is not a party. This is partly because of the injustice in deciding an issue against him in his absence. However, a person who is in privity with a party, is equally bound with the party In Reynolds Construction Company vs. R. B. B. (supra) at Page 130 Uwaifor JCA (as he then was) said- “It is the law that as a general rule a Judgment cannot be given against a person who was not a party to an action. This derives from the following known principles (a) Audi altarem partem-hear the other party- as no one should be condemned or damnified unheard (b) civil cases are decided on issues joined or admitted or conceded by parties to the respective suits. So the position is that no person is to be adversely affected by a Judgment given in an action to which he was not a party, apart from the known technical exceptions. See Osunrinde vs. Ajamogun (1992) 6 NWLR Part 246 at 156 at 187 per Ogundare JSC. PER JIMI OLUKAYODE BADA, J.C.A.
RES JUDICATA: WHETHER ANY JUDGMENT AGAINST A PERSON THROUGH WHOM ANOTHER PERSON DERIVES TITLE IS BINDING ON THAT OTHER PERSON; CLASSIFICATION OF PRIVIES IN RELATION TO THE DOCTRINE OF RES JUDICATA
Once a party derives his interest from another, he becomes privy to that person and any Judgment against that person is binding on the Purchaser or Privy. In Coker & Another vs. Sanyaolu (supra) at Page 574 lines 34 – 43 Idigbe JSC (as he then was) stated that:- “If, and this is the law, Alatishe (and his privies) cannot in a subsequent case against the Respondent contend that the land he claimed in Exhibit “N” is the land sold to him by the present Appellant then, on the established principle That “estoppel must be mutual,” the Respondent is also precluded from contending the same………………………………………” Privies in relation to the doctrine of Res Judicata could be classified into three namely:- (1) Privies in blood (as ancestors and heirs); (2) Privies in law (as testator and administration); (3) Privies in estate (as vendor and purchaser, lessor or lessee). PER JIMI OLUKAYODE BADA, J.C.A.
WHETHER A PRIVY WILL BE BOUND BY THE JUDGMENT AGAINST THE INTEREST OF THE PERSON THROUGH WHOM HE CLAIMS TITLE IF THE SUBJECT MATTER IS THE SAME PROPERTY OR PIECE OF LAND
It is the law that a privy is bound by a Judgment against the interest of the person through whom he claims title if the subject matter is the same property or piece of land. PER JIMI OLUKAYODE BADA, J.C.A.
LEAVE OF COURT: WHETHER LEAVE IS REQUIRED TO FILE AND ARGUE A FRESH POINT NOT CANVASSED IN THE LOWER COURT IF IT IS TO BE CONSIDERED ON APPEAL AND WHETHER SUCH LEAVE IS WITHIN THE DISCRETION OF THE COURT
The general rule is that leave is required to file and argue any fresh point not canvassed in the lower Court if it is to be considered on appeal and the Court has the discretion to grant or refuse such leave. See the following cases:- – Jatau vs. Ahmed (2003) 1 SCNJ Page 382: – Kate Enterprises Ltd vs. Daewoo Nig. Ltd (1985) 2 NWLR Part 5 Page 116. PER JIMI OLUKAYODE BADA, J.C.A.
Before Their Lordships
MARY U.PETER-ODILIJustice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADAJustice of The Court of Appeal of Nigeria
ABDU ABOKIJustice of The Court of Appeal of Nigeria
Between
MAKOSHI DANIELAppellant(s)
AND
1. SENATOR (DR) ALEX KADIRI
2. SOCIETE GENERALE BANK NIG. LIMITEDRespondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment) This is an Appeal against the Judgment of the High Court of the Federal Capital Territory Abuja in Suit No: FCT/HC/CV/755/2001- Senator (Dr) Alex Usman Kadiri vs. Societe Generale Bank Nigeria Ltd.
Briefly, the facts of the case are that the 1st Respondent was the owner of two bungalows on Plot No: 2617, Maitama, Abuja and same was covered by a Certificate of Occupancy No: FCT/ABU/BN/264. He applied and obtained a loan from the 2nd Respondent. As security for the loan, he mortgaged one of the bungalows by depositing the Certificate of Occupancy in respect of the Plot with the 2nd Respondent. Being unable to repay the loan and the accrued interests, and in exercise of its powers under the Mortgage Agreement, the 2nd Respondent on the orders of the High Court of Justice Abuja, auctioned the mortgaged bungalow to the Appellant in 1998.
In 2001, the 1st Respondent commenced this suit as Plaintiff against the 2nd Respondent as Defendant. The Appellant was not a party and was not aware of the existence of the suit. At the end of the trial, Judgment was entered in favour of the 1st Respondent and against the 2nd Respondent. The 2nd Respondent later brought an application on notice before the lower Court in which he asked for an order that the Appellant should hand over the Certificate of Occupancy in question to the 1st Respondent.
The said application even though on Notice, the Appellant stated that he was not served with same. The lower Court granted the application.
However, in January 2003, the Appellant was by substituted means served with Form 49 by pasting same on his residential house in Maitama, Abuja.
The said Form 49 was accompanied with the following Exhibits:-
1. A copy of Certificate of Judgment.
2. Copy of Order of Court dated 6th October, 2003 against the Appellant.
3. Motion Ex-parte for substituted service.
4. Copy of the Court’s Order for substituted service of the said Form 49.
After the service of Form 49 the Appellant brought an application on notice where he prayed amongst others to set aside the order made against him without notice and strike out his name from the suit. After hearing the application, the lower Court held that the Appellant is a privy to the 2nd Respondent and that he is bound by the order made after the Judgment against him. The application was therefore dismissed.
The Appellant dissatisfied with the Ruling now appealed to this Court.
The learned Counsel for the Appellant formulated three issues for determination set out as follows:-
“(1) Whether the Court’s Order against the Appellant in this case is not in breach of the Appellant’s constitutional right to fair hearing.
(2) Whether the trial Court was right to suo motu raise an issue before it.
(3) Whether the decision in the case of Osunrinde vs. Ajamogun (1992) 6 NWLR Part 246 Page 156 applies to this case.”
The learned Counsel for the 1st Respondent also formulated a lone issue for determination set out as follows:-
“Whether a Judgment against a party in the sale of a landed property binds his privies who were not parties.”
The 2nd Respondent even though duly served failed to file a Respondent’s brief of argument in this matter.
At the hearing, the learned Counsel for the Appellant referred to the Appellant’s Brief of Argument filed on 13/3/2006 and the Reply Brief of Argument filed on 3/11/2006. He adopted the said briefs of argument in urging that the appeal be allowed.
The learned Counsel for the 1st Respondent also referred to the brief of argument filed on 26/9/2008. He adopted the said brief in urging that the appeal should be dismissed.
I have carefully examined the issues formulated for determination on behalf of the parties in this appeal and it is my view that the issue set out on behalf of the 1st Respondent is considered relevant in that it would settle the issues in controversy.
“Whether a Judgment against a party in the sale of a landed property binds his privies who were not parties.”
The learned Counsel for the Appellant stated that when the suit was commenced and up to Judgment stage that the Appellant was neither a party nor was he aware of the existence of this suit. He submitted that the Courts lack jurisdiction to make an order against a person who is not a party to an action. He relied on the following cases:-
– Koiki vs. First Bank of Nigeria Plc (1994) 8 NWLR Part 297;
– Reynolds Construction Company vs. R. B. B. (1993) 6 NWLR Part 297 Page 122;
– Awoniyi vs. Amorc (2000) 6 SCNJ Page 141 at 144;
– Udo-Akagha vs. Pako Ltd (1993) 4 NWLR Part 288 Page 434 at 437.
He also submitted that the Appellant is not a privy to the 2nd Respondent because privies are those who are related to the parties in blood, interest and title or subject matter. He relied on the case of:-
– Balogun vs. Adejobi (1995) 1 SCNJ Page 242 at 245.
It was also contended on behalf of the Appellant that there is no dispute that the Appellant bought the house in question in 1998 before the commencement of this suit in 2001.
It was also submitted by learned Counsel for the Appellant that the case of: Osunrinde vs. Ajamogun (supra) is not applicable to this present case under consideration.
He finally urged this Court to allow the appeal.
The learned Counsel for the 1st Respondent submitted that privies are bound by Judgments affecting the party from whom their title derives positively or negatively. He relied on the following cases:-
– Reynolds Construction Company vs. R. B. B. (supra):
– Osunrinde vs. Ajamogun (supra);
– Coker & Another vs. Sanyaolu (1976) NSCC Page 566 at 574;
– Nana Ofori Atta II vs. Nana Abu Bonsra (1958) A.C. Page 95.
It was also stated on behalf of the 1st Respondent that the record of proceedings in the appeal has deliberately omitted some vital processes to the suit. Those processes are:-
(a) The motion of the 2nd Respondent that sought to enforce the Judgment of the lower Court against the Appellant.
(b) The day to day proceedings before the lower Court and oral argument of Counsel.
(c) All the applications for substituted service at the lower Court because of his evasion of service of all Court processes.
The learned Counsel for the 1st Respondent submitted that the burden is on the Appellant to ensure the accuracy of the record of appeal forwarded to the Appellate Court. He relied on the case of:-
– Ajayi vs. Omoregbe (1993) 6 NWLR Part 301 Page 512 Ratio 10:
– Fagbola vs. Titilayo Plastic Industry Ltd (2005) 2 NWLR Part 909 Page 1.
It was contended on behalf of the 1st Respondent that the Appellant used a false name. Learned Counsel referred to the affidavit dated 7th December, 2005 before the Federal Capital Territory High Court where the Appellant deposed in the name of Navy Captain M. D. Yakusa and not Makoshi Daniel which he answers in this Court. It was stated further that the Appellant deliberately omitted the said affidavit in the record of proceedings.
He finally urged that this appeal should be dismissed.
The Appellant in the Reply to the 1st Respondent’s brief of argument submitted that the record of appeal was compiled and forwarded to this Court by the FCT High Court and not the Appellant.
On the issue of fraud raised by the 1st Respondent, the Appellant stated that it was not raised at the lower Court and that the 1st Respondent cannot raise it now without the leave of the Court.
The learned Counsel for the Appellant finally urged that the appeal be allowed.
The issue under consideration in this Appeal is whether a Judgment against a party in the sale of a landed property binds his privies who are not parties.
The position of the law is very clear on the fact that a person who is not a party to a suit is not bound by the result of the action. Thus, no person is to be adversely affected by a Judgment, order or decree of a Court in an action to which he is not a party. This is partly because of the injustice in deciding an issue against him in his absence. However, a person who is in privity with a party, is equally bound with the party In Reynolds Construction Company vs. R. B. B. (supra) at Page 130 Uwaifor JCA (as he then was) said-
“It is the law that as a general rule a Judgment cannot be given against a person who was not a party to an action.
This derives from the following known principles (a) Audi altarem partem-hear the other party- as no one should be condemned or damnified unheard (b) civil cases are decided on issues joined or admitted or conceded by parties to the respective suits. So the position is that no person is to be adversely affected by a Judgment given in an action to which he was not a party, apart from the known technical exceptions. See Osunrinde vs. Ajamogun (1992) 6 NWLR Part 246 at 156 at 187 per Ogundare JSC.
In Osunrinde vs. Ajamogun (supra) at Page 187, Ogundare JSC said:-
“The general rule of law undoubtedly is that nobody is to be adversely affected by a Judgment in an action to which he was not a party, because of the injustice in deciding an issue against him in his absence. But this general rule admits of two exceptions, one is that a person who is in privity with the parties, a “privy” as he is called is bound equally with the parties, in which case he is estopped by Res Judicata; the other is that a person might have so acted as to preclude himself from challenging the Judgment in which case he is estopped by his conduct.”
On Page 188 he stated further”
The 1st Defendant in this present action is a privy in estate to the 2nd to 8th Defendants in that he derived his title from them. – Coker vs. Sanyaolu (1976) 9-10 S.C. Page 203, and being a privy he is bound equally with the parties. Consequently I have no hesitation whatsoever in holding that the finding of Agoro J. in ID/418/76 to the effect that Muse Gbadamosi Ajamogun was at the relevant period the head of the Ajamogun/Olukotun family was binding on all the Defendants in the present action and that finding constitutes issue estoppel against them.”
Once a party derives his interest from another, he becomes privy to that person and any Judgment against that person is binding on the Purchaser or Privy.
In Coker & Another vs. Sanyaolu (supra) at Page 574 lines 34 –
43 Idigbe JSC (as he then was) stated that:-
“If, and this is the law, Alatishe (and his privies) cannot in a subsequent case against the Respondent contend that the land he claimed in Exhibit “N” is the land sold to him by the present Appellant then, on the established principle
That “estoppel must be mutual,” the Respondent is also precluded from contending the same………………………………………”
Privies in relation to the doctrine of Res Judicata could be classified into three namely:-
(1) Privies in blood (as ancestors and heirs);
(2) Privies in law (as testator and administration);
(3) Privies in estate (as vendor and purchaser, lessor or lessee).
It is the privies in estate that is applicable to this case under consideration
As could be seen from the facts of this case, it was the 2nd Respondent that auctioned the mortgaged bungalow belonging to the 1st Respondent to the Appellant in 1998. But the 1st Respondent in an action against the 2nd Respondent obtained Judgment in his favour.
It is the law that a privy is bound by a Judgment against the interest of the person through whom he claims title if the subject matter is the same property or piece of land.
The Appellant in this case derived his title to the bungalow in issue from the 2nd Respondent against which Judgment was delivered.
Therefore the Appellant as a Privy to the 2nd Respondent is bound by the Judgment against the 2nd Respondent.
It was contended on behalf of the 1st Respondent that the record of proceedings in this appeal deliberately omitted some vital processes to the suit. But learned Counsel for the Appellant submitted that the record of appeal was compiled and forwarded to this Court by the Appeal Section of the High Court of the Federal Capital Territory, Abuja and not the Appellant.
It is my view that even though it is the duty of the Appellant to ensure the accuracy of the record of appeal forwarded to the, appellate Court but in this case, the Appellant was not a party to the suit at the lower Court. If truly the documents omitted were vital, the 1st Respondent should have applied to the Court to come by way of supplementary record to enable him bring those documents before the Court. The documents brought before the Court by the Appellant are that he needed to prosecute his appeal. Therefore, the absence of the documents mentioned by the Counsel for the 1st Respondent cannot render the appeal incompetent.
The 1st Respondent also raised the issue of fraud and interchanging of Appellant’s name. My view on this is that this issue was not raised at the lower Court and before it could be raised in this Court, leave of Court must be obtained and no leave was sought nor obtained. The general rule is that leave is required to file and argue any fresh point not canvassed in the lower Court if it is to be considered on appeal and the Court has the discretion to grant or refuse such leave. See the following cases:-
– Jatau vs. Ahmed (2003) 1 SCNJ Page 382:
– Kate Enterprises Ltd vs. Daewoo Nig. Ltd (1985) 2 NWLR Part 5 Page 116.
On the whole, this issue is resolved in favour of the 1st Respondent and against the Appellant.
In the final analysis, it is my view that this appeal is unmeritorious, it fails and it is accordingly dismissed.
The 1st Respondent is entitled to costs which is fixed at =N=50,000:00 (Fifty Thousand Naira) against the Appellant.
MARY U. PETER-ODILI, (J.C.A) I had the privilege of reading the draft judgment of my learned brother, Jimi Olukayode Bada, J.C.A. I agree totally with the decision and reasonings thereof.
I abide the orders my brother made.
ABDU ABOKI, J.C.A. I have had the privilege of reading before now the draft of the Judgment of my learned brother JIMI OLUKAYODE BADA, J.C.A. just delivered. I agree with my Lord that this appeal is unmeritorious and therefore should fail It is accordingly dismissed.
I also abide by all consequential orders made therein including the order as to costs.
Appearances
VALENTINE OGARFor Appellant
AND
CHARLES UCHEGBU
No Legal RepresentationFor Respondent
