IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
THE LAGOS JUDICAL DIVISION
HOLDEN AT LAGOS
SUIT NO. NICN/LA/682/2018
BEFORE HIS LORDSHIP, HON. JUSTICE (Dr) l. J. ESSIEN
DATE: 17th OCTOBER, 2019.
BETWEEN
OLAMIDE TEMITOPE ADENIJI
(Suing as the Lawful Attorney of) ——————————– Claimant
MRS RACHEAL BUKOLA SONDE
AND.
UNION BANK OF NIGERIA PLC————————————– Defendant
RULING/JUDGMENT
By a notice of preliminary objection dated and filed on the 27/2/19, the defendant/ applicant in this suit sought the following orders upon the determination of the preliminary objection:
1) An ORDER of the Honourable Court declaring that the refiling or reincarnation of the instant suit after a final determination of and. Delivery of Judgment by this Honourable Court in Suit No: NICN/LA/263/2014 between the claimant (Mrs Racheal Bukola Sonde) and the defendant in this suit on the issue of gratuity, inter alia, constitutes a travesty by the claimant/Respondent, of the doctrine of Issue Estoppel.
2) An ORDER of the Honourable Court declaring that by virtue of the doctrine of Estoppel by Conduct, Mrs. Racheal Bukola Sonde is barred from filing this action whether in person or through a representative in interest.
3) A consequential Order of this Honourable Court dismissing and/ or striking out the subject suit in limine for want of jurisdiction.
4) AND for such further or other orders as this honourable court may deem it fit to make in the circumstances.
The defendant/ applicant counsel relied on 9 (nine) grounds of objection which are as stated on page 2 and 3 of the notice of objection which I have carefully read and which I will not reproduce here again.
In support of the objection is a 7 paragraph affidavit deposed to by one Busola Omolara Aboyeji. Attached to the affidavit is Exhibit 1, the certifies true copy of the judgment of this court in Suit No. NICN/LA/263/2010 delivered by my learned brother at Akure division of the court. Also in support of the preliminary objection is a written address of the applicant counsel.
In response to the preliminary objection, the claimant/ respondent counsel filed a 12 paragraph affidavit and a written address in opposition to the objection on the 13/3/2019. On being served with the respondent’s process, the applicant counsel filed a reply on point of law on the 18/3/2019.
On the 17/7/2019, the counsels for the parties adopted their processes in in the course of hearing of the preliminary objection and the matter was adjourned for ruling/ judgment today.
In his written argument the learned counsel for the defendant/applicant formulated 2 issues for determination. The claimant/respondent counsel formulated one issue for determination. I have read the issues for determination formulated by the counsels for the parties, this court however formulates the following issues for determination.
1) Whether the Judgment of this Honourable Court delivered on the 24th January 2017, in Suit No NICN/LA/263/2014 between the parties herein, operates as ‘issue estoppel’ on the issue of gratuity so as to act as a bar to this present action.
2) Whether the conduct of Mrs Racheal Bukola Sonde in accepting and appropriating the gratuity paid to her since 25/11/3013 which she admitted in the judgment in suit No NICN/263/2014 does not operate as estoppel by conduct thereby operating bar to instituting this present action in person or in a representative capacity.
The issues formulated above would effectively address all the issues in contention in this preliminary objection.
ON ISSUE NO 1
On this issue it is the contention of the defendant/applicant counsel that one of the issue for determination in Suit No NICN/LA/263/2014 which judgment was annexed as Exhibit 1, was whether or not the termination of the claimant’s appointment was lawful, that at page 32 of Exhibit 1, this court found that the termination of the employment was mutual, the having received her gratuity and one month salary in lieu of notice.’ Counsel also invited the attention of the court to paragraph 4 of page 4 of Exhibit 1, where the court found as a fact that Mrs Sonde has been paid her gratuity and that Mrs Sonde did not controvert the facts pleaded by the defendant in that case including that Mrs Sonde has been paid her gratuity. Counsel referred the court again to (paragraph 1, Page 13 of Exhibit 1, paragraph 3, page 29 of Exhibit 1, paragraph 2, page 30 of Exhibit 1 and the entire page 31 of Exhibit 1). Counsel also pointed out that in paragraph 2 of page 20 of Exhibit 1, the claimant counsel also acknowledged and accepted that her gratuity was paid to her by the defendant. Counsel argued that a party to a litigation is estopped from raising the issues addressed in a previous litigation in a subsequent one. He cited the Supreme Court decision in the case of Adigun V. The Sec, Iwo Local Government (1999) 8 NWLR (Pt. 613) 30 (SC.)
Counsel argued further that even though the respondent counsel may argue that though the issue of gratuity was decided in Exhibit 1, but it did not consider the quantum of gratuity. Counsel posited that the Supreme Court has decided in a number of cases that a party is estopped from bringing issues that properly belong to one cause of action say in a previous action in piecemeal which the party id he had exercised diligence would have brought all the issues in the same action. Aparty cannot split the issue and litigate them over and over in subsequent actions. He relied on the cases of
Ogbogu vs. Ugwuegbu (2003) FWLR (Pt 161) 1825 SC.
Oagaci of Dereus Dagaci of Ebtea (2006) All FWLR (Pt. 306) 786 SC.
Dzungwe vs, Gbishe (1985) 2 NWLR (Pt 8) 528 at 537 S.C,
Oloriegbe vs. Omotesho (1993) 1 NWLR (Pt. 270) 386 SC,
Lawal vs. Dawodu (1972) 1 All NLR (Pt. 2) 270 at 282
Counsel cited the case of Odeleye v. Adegbanke (2008) WRN (VoL 4) 44 at 50. pg 64: – 65; lines 45-10 (CA) the Court of Appeal held thus:
‘An issue that has been definitely settled by judicial decision or judgment is an affirmative defence barring the same parties from litigating a record on the same transaction or series of transactions and that could have been but was not raised in the first suit.’
Counsel also relied on the provisions of sections 59 and 169 of the Evidence Act 2011 and submitted that the present action is severally plagued by the doctrine of issue estoppel and same will give rise to pronouncement which may affect the decision of this court in Exhibit 1. He urged the court to dismiss this action on the authority of Ladega & Ors v. Durosimi & Ors (1978) 11 NSCC174. Counsel finally argued that not doing so would amount to this court sitting on, altering , revisiting or giving another decision on the same subject matter. See the case of Mohammed v Husseini (1998) 14 NWLR (Pt 584) P· 108 at 138-139 ParasH-A .
In response to the defendant/applicant’s counsel argument. The claimant/ respondent counsel has argued in his written address at paragraph 3.04 that the relief sought in Suit No NICN/LA/09/2010 and the instant suit clearly show that the reliefs in the two suits are different and the claimant have option as to how they can claim for earnings due to them prior to their dismissal. He argued that the Supreme Court in Dzungwe vs, Gbishe (1985) 2 NWLR (Pt 8) 528 at 537 S.C, referred to by the applicant counsel is distinguishable from the present suit. In that instant case the action is for payment of the claimant’s entitlement withheld on account of their dismissal which was declared wrongful by the National Industrial Court, while the previous action was for inter-alia for declaration that their dismissal was wrongful as due process was not followed. He submitted that this action is not caught up by res judicata. This is at best what I can decipher from the argument in the claimant/respondent counsel written submission.
First I must stat clearly here that I do not know which case the respondent counsel is referring to as Suit No NICN/LA/09/2010. Exhibit 1 to the affidavit in support of this preliminary objection is Suit No NICN/LA/263/2014, and the judgment in that suit delivered on the 24th January 2017, which is the suit this court is considering in this ruling.
The law is very recondite on the subject matter of issue estoppel. The Supreme Court in a plethora of decision have laid down the condition that must be fulfilled for a party who raises the defence of issue estoppel to succeed. In the case of Adigun Vs. Secretary Iwu Local Government [1999] 8NWLR (pt 613) 30 SC. The Supreme Court laid down 3 criteria for the application of the doctrine of issue estoppel to wit;
1) The parties must be the same in the previous as well as the present proceeding.
2) The same question that was decided in the previous action must arise in the present action in respect of the same subject matter.
3) A court of competent jurisdiction must have determined the issue in a final manner.
I have carefully examined Exhibit 1, the judgment of this court in Suit No NICN/LA/263/2014, the parties in that suit are the same with the parties in this suit. It is immaterial that the plaintiff in Exhibit 1 is now suing by his lawful attorney. It is also not in doubt that the judgment in Exhibit 1 was decided by this court which is a court of competent jurisdiction vested with the jurisdiction to hear the subject matter considered in that judgment.
Having said this, this leaves us with the 2nd criteria laid down in the authorities cited above. Counsel for the defendant/applicant Muhammad Sanni Umar Esq has argued that in Suit No NICN/LA/263/2014 which judgment was annexed as Exhibit 1, the issue was whether or not the termination of the claimant’s appointment was lawful, that at page 32 of Exhibit 1, this court found that the termination of ‘the employment was mutual, the plaintiff having received her gratuity and one month salary in lieu of notice.’ Counsel also invited the attention of the court to paragraph 4 of page 4 of Exhibit 1 where the court found as a fact that Mrs Sonde has been paid her gratuity and that Mrs Sonde did not controvert the facts pleaded by the defendant in that case including that Mrs Sonde has been paid her gratuity. Counsel referred the court again to (paragraph 1, Page 13 of Exhibit 1, paragraph 3, page 29 of Exhibit 1, paragraph 2, page 30 of Exhibit 1 and the entire page 31 of Exhibit 1). Counsel also pointed out that in paragraph 2 of page 20 of Exhibit 1, the claimant counsel also acknowledged that plaintiff accepted her gratuity paid to her by the defendant. Counsel argued that a party to a litigation is estopped from raising the issues addressed in a previous litigation in a subsequent one. The only argument put forward by the respondent counsel is that the relief sought in Suit No NICN/LA/09/2010 and the instant suit clearly show that the reliefs in the two suits are different and the claimant have option as to how they can claim for earnings due to them prior to their dismissal. If the respondent counsel intended to refer to the judgment in Suit No NICN/LA/263/2014 i. e Exhibit 1, the argument put forward here is flawed. As pointed out by the applicant counsel, at paragraph 4 of page 4 of Exhibit 1 the court found as a fact that Mrs Sonde has been paid her gratuity. Also in paragraph 3, page 29 of Exhibit 1, the present claimant who was the plaintiff in that suit admitted that he was paid her gratuity since 25/11/3013 and the court found as a fact at paragraph 2, page 30 of Exhibit 1 that the claimant in this suit was paid her gratuity. The argument by the respondent counsel that claimant have option as to how they can claim for earnings due to them prior to their dismissal and that the subject matter of this present suit is as to the quantum of gratuity which the claimant is entitled to, does not have the support of the law. The claimant accepted the gratuity paid by the defendant, the defendant had all the opportunity in Suit No NICN/LA/263/2014 to have raised a dispute as to the computation or the quantum of the gratuity he was entitled to but chose not to ventilate the issue in that suit, the law is that he cannot be allowed to re-litigate the issue of gratuity in piecemeal by instituting this action.
The House of Lords in Mills V. Cooper [1967]2 All E.R. 100 at 104 per Diplock LJ succinctly stated the principle stated the principle thus:
This doctrine so far as it affects civil proceedings may be stated thus; a party to a civil proceeding is not entitled to make as against the other party, an assertion, whether of facts or of legal consequences of facts the correctness of which is an essential element in his previous cause of action or defence in previous civil proceedings between the same parties or their predecessors in title and was found by a court of competent jurisdiction in such previous civil proceedings to be correct, unless further materials which is relevant to the correctness or incorrectness of the assertion and could not by reasonable diligence have been adduced by that party in the previous proceedings has since become available to him. The sound reasoning behind this principle is that a litigant is not permitted to nibble at his claim – breaking them down and taking them piecemeal. He is expected to bring his claims belonging to the same subject matter at one and the same time. If he chooses to bring them piecemeal he may be met by the doctrine of res judicata or where appropriate, issue estoppel.
In the case of Peter Pav Dzungwe V. Oram Gbishe & Anor. [1985]LPELR-978 (SC) The Supreme Court has held inter alia:
It is a principle of law now well settled that a party is estopped from re-litigating a matter which has been a subject of litigation between the same parties even where the party due to inadvertence or negligence failed to put forward every subject of his case. (Per Kazeem JSC. PP15-16 Paras G-A
It was held in Okorocha v. PDP (2014) 7 NWLR Part 1406 Page 213 at 290 Para B-E per M.D. Muhammad JSC, that any bid by a party to litigate the same issue in more than a single fora between the same parties and for the same or identical reliefs is an abuse of court process. See also Oloriegbe vs. Omotosho (1993) 1 NWLR (Pt. 270) 386 SC,
The duty of this court at this stage is not to determine whether the claimant can succeed in this new action but rather it is to see whether there have been previous decision of a court of record in respect of the subject matter now in dispute which would bar the plaintiff from raising this present claim. See the case of Nigeria Agip Oil Co. Ltd. Vs. Agbadakiri [2007] ALL FWLR (Pt. 385) 575 at 580; Paras F – G
On the strength of the analysis made in this ruling on this issue this court hereby holds that Judgment of this Honourable Court delivered on the 24th January 2017, in Suit No NICN/LA/263/2014 between the parties herein, operates as ‘issue estoppel’’ against the claimant in this present action. Mrs Racheal Bukola Sonde cannot institute this action in a representative capacity or in any other capacity to pursue the issue of gratuity. This issue is hereby resolve against the claimant respondent in favour of the defendant applicant to this preliminary objection.
ON ISSUE 2.
On this issue the applicant counsel contends that this present action instituted by the respondent is cut up by the doctrine of estoppel by conduct. Counsel submitted that the claimant was paid his gratuity in 2013 (6 years ago), she did not complain about the quantum of the gratuity, in fact she testified on oath that she accepted her gratuity. Then when the defendant had accepted the state of affairs, presumed rightly that Mrs Sonde’s chapter with the bank had closed for good, she resurfaces through a proxy complaining that her gratuity was not paid in full. Counsel relied on S. 169 of the Evidence Act and argued that by her conduct she and her representative in interest are barred from instituting this action. Counsel relied on the case of Attorney General of Rivers State V. Attorney General of Akwa Ibom State (2011) All FWLR (Pt 579) 1023 at 1054- 1055 SC.
The respondent counsel did not proffer any argument in opposition to the applicant counsel argument on the issue of estoppel by conduct. In his reply on point of law the applicant counsel argued that having not offered a contrary argument to the said submission on issue 2 in the defendant /applicant written submission the court should rely on the applicant argument as establishing the position on the issue under consideration. He relied on the case of Nwankwo Vs. Yaradua [2010]12 NWLR pt. 1209p. 556 Paras b-C
I have carefully considered the argument put forward by counsel for the parties. It is on record that all the averments contained in the affidavit in support of this preliminary objection were not contradicted. The law is that uncontradicted averments in affidavit must be accepted as establishing the facts contained in the affidavit. See Amgare & Anor. V. Sylva & Ors [2007] LPELR- 8089 (CA)
It is not in dispute that as admitted by Mrs Sonde in Exhibit 1 i.e. the judgment of this court in Suit No NICN/LA/263/2014, the defendant had paid the Mrs Sone her gratuity which she received. The provision of Section 169 of the Evidence Act 2011 which enforces estoppel by conduct provides:
When a person has, either by virtue of an existing court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief. Neither he nor his representative in interest shall be allowed, in-any proceeding between himself and such person or such persons representative in interest to deny the truth of that thing.
From the provision of the Evidence Act produced above, a representative action by whatever guise it is initiated is prohibited once a party is guilty of estoppel by conduct. It is clear from the conduct of Mrs Sonde that her conduct violets the extant provision of the evidence Act. It does appear that after receiving her gratuity she now uses her son as a proxy to institute this action which I have noted in this action amounts to an abuse of court process. See Oloriegbe vs. Omotesho ‘supra’
Apart from this it has long been established that where an employee at the point of determination of his employment, he receives the computation of his terminal benefit which includes his gratuity and he is silent on it and the employer subsequently goes ahead to make payments to the employee and he accepts same in good faith, he cannot subsequently dispute the entitlement by bringing an action to claim what he feels is the shortfall if any. In others words the employee must dispute the entitlement at the earliest possible time before he receives payment. In Begger Nig. Ltd PLC V. Nwagwu, [2006]LPELR-8223 (CA), the court held that where an employee receives his terminal benefit after his employment is brought to an end, he cannot be heard to complain latter that his contract of employment was not properly terminated. This is because the acceptance of payment by the employee renders the determination mutual. As regards this present action a claim of a supposed shortfall of gratuity after a period of over 6 years through an action filed by a proxy is certainly not what is in the contemplation of the law as earliest possible time to dispute terminal benefit.
On the strength of this authority the argument by the claimant/ respondent counsel that this present suit is as to the quantum of the gratuity payable to the Mrs Sonde is standing the law on its head, it is without any authority in law and must be discountenanced as not representing the position of the law.
It for the reason stated in the consideration of this issue that I hereby hold that this suit violets the doctrine of estoppel by conduct. Mrs Sonde and his lawful attorney who presents himself as the claimant in this action are hereby estopped from further litigating the issue of gratuity which the judgment of this court in Suit No NICN/LA/263/2014, brought to this proceedings as Exhibit 1 has already settled. Issue 2 is resolved against the claimant/respondent, and in favour of the defendant/applicant.
On the whole this preliminary objection succeeds . This suit is hereby dismissed.
The claimant shall pay a cost of N20,000 to the defendant. The cost shall be paid within 7 days from today.
Judgment is entered accordingly.
Sign ——————————————————
Hon. Justice (Dr.) I. J. Essien
(Presiding Judge)
