MR. I. O. A. FADAIRO & 2ORS VS PETERS A. ADEYEMI [JP] [General

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

Date: 11th December 2018

SUIT NO. NICN/IB/27/2016

BETWEEN

MR. I. O. A. FADAIRO
MR. A. A. EKUNDAYO
MRS. I. A. OLADIPUPO

CLAIMANTS/ RESPONDENTS

AND

PETERS A. ADEYEMI [JP]

[General Secretary, NASU Headquarters

MR. F. I. AJAYI

[Senior Deputy General Secretary, NASU

Headquarters] [For themselves and on behalf

of non-Academic Staff Union of Education and

Associated Institutions, Orita U.I. Ibadan

MR. ODUNJO ISIAKA OLAJIDE

[MEMBER, NASU, FUNAAB]

NON-ACADEMIC STAFF UNION OF EDUCATIONAL

AND ASSOCIATED INSTITUTIONS [NASU]]

DEFENDANTS/ APPLICANTS

REPRESENTATION:

OlaJesu Oluwaseyi Bakare Esq. for the Claimants/Respondents

Quadri Ganiyu Esq. for the Defendants/Applicants

RULING/JUDGMENT

By notice of preliminary objection dated and filed on 7th March 2018 the Defendants/Applicants [“the Defendants”] prayed the Court for an order dismissing this suit for lack of jurisdiction and incompetence and for such orders or further orders [sic] this Honourable Court may deem fit to make in the circumstances. The ground of the objection is that the suit has already been heard and determined by a Court of concurrent jurisdiction and judgment on the merit delivered and as such this Court lacks the jurisdiction to sit and determine this suit and the said suit is incompetent. The objection is supported with 12 paragraphs affidavit deposed to by Clement Bassey Esq. of Benjamin A. Ogunleye & Co. Legal Practitioners representing the Defendants. Attached to the affidavit are three exhibits, exhibits A, B and C and a written address dated 7th March 2018. The Defendants filed a memorandum of appearance and their defence processes dated 4th May 2016 but did not raise the issue of res judicata in their statement of defence. In response to the notice of preliminary objection, the Claimants/Respondents [“the Claimants”] filed three paragraphs counter affidavit dated 5th October 2018 and a written address of the same date.

The case came up on 26th November 2018 for hearing of the preliminary objection. Learned Counsel for the Defendants, Mr. Ganiyu, relied on the affidavit and written address in support of the application and urged the Court to dismiss the suit for lack of jurisdiction. In opposition to the application, learned Counsel for the Claimants, Mr. Bakare, adopted the Claimants’ counter affidavit and written address dated 5th October 2018 and urged the Court to dismiss the application. By way of reply on point of law, learned Counsel for the Defendants submitted that the counter affidavit is incompetent and contrary to section 115[3] Evidence Act. He contended that the authorities cited by learned Counsel for the Respondents are not relevant to the application and referred to Young Shall Grow Motors Ltd. v. Okonkwo & Anor. [2010] 15 NWLR [pt.1217] 12 at 14, on what a striking out means. He urged the Court to discountenance the counter affidavit and uphold the preliminary objection.

I have listened to the submissions of learned Counsel for the parties and considered the affidavits and exhibits filed by the Defendants and authorities cited by the parties. First, let me state that some of the cases cited and relied on by learned Counsel for the Claimants are not relevant to this application. The facts and decision in Alhaja Barakat Alafia & 5 Ors. v. Gbode Ventures Nigeria Limited & 3Ors. [2016] EJSC vol. 38 at page 75 at 94 have no bearing to this application and the Court did not make any pronouncement on whether a suit struck out after trial can be re-litigated. Also, in Peoples Democratic Party & 4Ors. v. Barrister Orji Chinenye Godwin & Ors. [2017] EJSC vol.70, page 128 at 155, the issue before the Court was a motion. Muhammad, JSC, observed that where a suit has been considered on its merit to finality and found to be worthless, it is subject to a dismissal order. The same is true of Aboyomi Babatunde v. Pan Atlantic Shipping Transport Agencies Ltd & 2Ors. [2007] 13 NWLR [pt.1050] 113. The issue before the Court was the effect of discontinuance of an action. This is equally true of Panalpina World Transport [Nig.] Ltd v. J. B. Olandeen International & 3Ors. [2010] NSCQR vol.44, page 613 which dealt with striking out of a motion. So much for the cases cited by the Claimants. The thrust of the preliminary objection is set out in paragraphs 3, 4, 5, 6 and 7 of affidavit in support of the preliminary objection. The paragraphs are reproduced below:

“3. That the Claimants took out a complaint against the Defendants at the National Industrial Court of Nigeria, Ibadan Division in Suit no. NICN/AB/02/2013 and when same was served on the Defendants, they appeared and filed their defence. The Claimants equally filed a reply to the Defendants’ statement of defence. A copy of the Claimants’ Complaint and statement of facts are herewith attached and marked as exhibit ‘A’.

“4. That after the Court had disposed of all applications and objections, the matter was set down for hearing.

“5. That at the hearing of the said suit, the 1st Claimant gave evidence as CW1 and he was later cross-examined by the Defendants’ Counsel, and thereafter closed their case.

“6. The Defendants did not give evidence, instead rested their case on the evidence/case of the Claimants. At the end of trial, parties filed and served final written addresses and adopted same. Judgment was thereafter delivered on the 13th January 2016 striking out the case of the Claimants against the Defendants. A copy of the Court’s judgment is hereby attached and marked as exhibit ‘B’.

“7. That this instant suit is substantially the same with that of NICN/AB/02/2013 both in form, substance, cause of action, issue, facts and parties.”

The Defendants’ contention is that this suit is caught by the plea of res judicata, which if successful, operates as a bar to this action and robs the Court of jurisdiction to entertain it. See Michael Ogbolosingha & Anor. v. Bayelsa State Independent Electoral Commission & Ors. [2015] LPELR-24353[SC] at page 29. For the Claimants, this suit is not caught by res judicata as the rights and liabilities of parties were not determined in NICN/AB/02/2013. A resolution of this application will, therefore, depend on the interpretation of the decision of this Court in Suit no. NICN/AB/02/2013 delivered on 13th January 2016 by Honourable Justice F. I. Kola-Olalere attached to the application and marked exhibit B. I observe that in striking out Suit no. NICN/AB/02/2013 my Lord, Honourable Justice F. I. Kola-Olalere, found on page 13 of the certified true copy of the judgment thus:

“I have found earlier in this judgment that the claimants did not state what they are claiming against the defendants in their amended statement of facts. This means that the claimants have abandoned their reliefs itemized on their amended complaint because the position of the law is that the averments in the amended statement of facts supersede their endorsements on their amended Complaint. In addition, on September 29, 2015 the 1^st claimant, Mr. Fadairo testified in this case on behalf of all the claimants. He adopted his written statement on oath which he made on March 9, 2015 and his additional statement, made on June 26, 2015. See pages 235 to 239 and 411 to 414 of the processes’ file respectively. The claimants did not state the reliefs they are seeking for in these statements. The Law is that the Court can only grant reliefs sought for or those incidentals [sic] thereto.” [Underlining mine]

The learned trial Judge further held:

“Consequent upon these findings, I hold that the claimants have abandoned their reliefs as itemized on their amended complaint in this case. I further hold that there is no claim upon which this Court can adjudicate or grant relief in this action. On the whole I hold: … 2. Because the claimants did not include their reliefs in their amended statement of facts and their witness’ written statements on oath, they have abandoned their reliefs as endorsed on their amended complaint.” [Underlining mine]

The word ‘abandoned’ appears three times on page 13 of the judgment. The issue, therefore, is not that there were no reliefs before the Court, but that the reliefs itemized in the amended complaint were abandoned by operation of law having not been specified in the amended statement of facts and witness’ statement on oath. There was therefore, in my respectful view, a specific finding of fact by the learned trial Judge that the Claimants abandoned the reliefs claimed in their amended complaint. This finding, in my considered opinion, fixes the rights of the parties and the Claimants cannot re-litigate this issue. It has been held that a judgment which determines an issue of law is a judgment on the merits and a final judgment. See the case of Western Steel Works Ltd. v. Iron & Steel Workers Union & Anor. [1986] 3 NWLR [pt.30] 617. The character that identifies a decision as final is the lack of power of the Court that gave that decision to re-decide or re-open it. See Patrick Oguowere & 4Ors. v. Joseph Udeh & 2 Ors. [2016] LPELR-41028[CA] at pages 35-36. It is also the law that the fact that the suit was struck out does not remove the character of finality of the decision or invariably confer on the Claimants the power to re-litigate it. In fact, there are situations where a case can no longer be re-opened even though it was struck out. See Patrick Oguowere & 4Ors. v. Joseph Udeh & 2Ors. [supra] at pages 37-38. The instant case is one of such cases. The Claimants gave evidence in proof of their case and the Defendants rested their case on that of the Claimants. At the end of the trial, the parties addressed the Court extensively on issues raised in their final written addresses. In issue three of the Defendants’ issues for determination, the Defendants posed this question: “Having regards to the amended statement of facts of the Claimants dated and filed on the 9th March 2015 whether there exist [sic] any claim or relief sought against the Defendants that this Honourable Court can competently grant?” This issue formed the basis of the finding of the Court above resulting in the striking out of the case.

The question then is, can this fact sustain a plea of res judicata? I think it can. The law is now fairly settled that for a plea of res judicata to succeed, the following conditions must be satisfied:

The parties or their privies must be the same in both the previous and present suit.
The claim or issue in dispute in both actions must be the same.
The res of the subject matter of the litigation in the two cases must be the same.
The decision relied upon to support the plea of estoppel must be valid, subsisting and final.
The Court that gave the previous decision relied upon to sustain the plea is a Court of competent jurisdiction.

See the cases of Taiye Oshoboja v. Alhaji Surakatu Amida & 2 Ors. [2009] 12 SC [pt.11] 107 at 129 and Dr. Taiwo Oloruntoba-Oju & 4 Ors. v. Professor Shuaibu O. Abdul-Raheem & 3 Ors. [2009] 5-6 SC [pt.11] 57 at 95-98. There is no doubt that this suit satisfies the above conditions. The question is in striking out that suit did the Court decide the rights of the parties? If it did, then the plea of estoppel per rem judicatam will be well grounded but if it did not decide the rights of the parties, the order of striking out will not have that effect even though the case went to trial. See Ranking Udo & 5 Ors. v. Mbiam Obot & 2 Ors. [1989] 1 NWLR [pt. 95] 59 at 71-72, where Oputa, JSC, held:

“A plea of res judicata can be maintained only when the same question as has been judicially decided was again raised between the parties. If therefore an action is brought, and the case is discussed on its merits and a final judgment is obtained by either party then the parties are concluded and they cannot canvass the same question again in another action inter parties…. For the plea of estoppel per rem judicatam to apply there must have been a judicial determination of a cause agitated between the real parties, upon which a real interest has been settled…. Finality is basic and crucial in pleas of estoppel per rem judicatam. It is not the mere raising of an issue that is binding on the parties. Rather it is the fact that such issue has been adjudicated upon and decided one way or another.”

The overriding consideration in a plea of res judicata, in my view, is that the Court must have decided the issue one way or the other. The learned jurist, Oputa, J.S.C., in Ranking Udo & 5Ors. v. Mbiam Obot & 2Ors. [supra] posited that there must have been a judicial determination of a cause agitated between the real parties, upon which a real interest has been settled. It is indisputable that Suit no. NICN/AB/02/2013 was agitated between real parties and a judicial determination was made that there was no relief against the Defendants which the Court could adjudicate upon. That decision puts a finality to this case. Neither the Judge in Suit no. NICN/AB/02/2013 nor I can re-open the issues painstakingly canvassed by the parties. This informed exhibit C attached to the preliminary objection. The only remedy available to the Claimants is an appeal against that decision.

On the objection to the counter affidavit pursuant to section 115[3] of the Evidence Act 2011, I hold the view that paragraph 2 of the counter affidavit is manifestly not an averment of fact but a legal argument or conclusion and offends section 115[2] of the Evidence Act, 2011; which provides that “An affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion.” It is consequently struck out.

In the circumstance, the notice of preliminary objection succeeds and it is upheld. This suit is caught by the plea of res judicata and thus incompetent. The issues raised in this case have been considered by a Court of concurrent jurisdiction and I do not have the competence to sit on an appeal over the decision of my learned brother. Consequently, this suit is dismissed with N20, 000 cost awarded against the Claimants in favour of all the Defendants. Judgment is entered accordingly.

……………………………………….

IKECHI GERALD NWENEKA

JUDGE

11/12/18