PETER MUTAIRU V. MADAM ATOKE
(2011)LCN/4624(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 14th day of June, 2011
CA/I/48/99
RATIO
APPEAL ON SOME POINTS: WHAT IS AN APPEAL; EFFECT OF AN APPEAL ON SOME POINTS OF A DECISION
It is correct as stated by the Respondent in his preliminary objection that an appeal is simply the continuation of the case put forward in the court of first instance, the authorities of Edebiri vs. Edebiri (supra) Ajide vs Kelani (supra) are quite apt on this point, but in the present application before this court the Appellant is not caught by the fact of changing his case on appeal from the one filed at the lower court. The Appellant rightly exercised his right of appeal, against the ruling of the Lower Court of the 18/8/99 on a preliminary point raised by the respondent himself. The Supreme Court has since settled this position. The Apex Court stated that “It is the Law that where there is an Appeal on some points on a Decision, the Appeal stands or falls on those points Appealed against only while the other points or Decisions not appealed remain unchallenged. See: – Micheal vs. The State (2008) 5 – 6 S.C. (Pt.11) 203. PER SIDI DAUDA BAGE, J.C.A.
ADMISSIONS: WHETHER WHAT IS ADMITTED REQUIRES FURTHER PROOFS
An admission is a principle deeply enshrined in our jurisprudence that what is admitted do not require to be proved for the simple reason, among others that “Out of the abundance of the heart the mouth speaketh” and that no better proof is required than that which an adversary wholly and voluntarily owns up. See:- Chukwuemeka Odumegwu Ojukwu vs, Dr. Edwin Onwudiwe & ors (1984) 2 S,C, 15 at 88; Seismograph Service (Nigeria) Ltd, vs. Chief Keke Ogbenegweke Eyuage (1976) 9 & 10 S.C. 135 at 146; Adeyemi Ogunnaike vs. Taiwo Ofayemi (1987) 3 S.C, 213 at 247. PER SIDI DAUDA BAGE, J.C.A.
RES JUDICATA: WHO CAN PLEAD RES JUDICATA IN AN ACTION
The Supreme Court has settled this issue in its recent decision in Ikotun vs, Oyekanmi & Anor, (2008) 4 – 5 S.C. (Pt. 1) 1 wherein the Apex Court stated: It is settled law that only a Defendant or plaintiff in reply to Defendants pleading in Defence to an issue raised therein can plead Res – judicata ……”(underline mine) Also see: – FEI BUSINESS ENTERPRISES LTD & ANOR VS. CREDIBLE FINANCE AND INVSTMENTS LTD. (2002) 30 WRN 32; OLORIEGBE VS. OMOTOSHO (1993) 1 NWLR (Pt 270) 386; EZENYA V. OKEKE (1995) NWLR (PT.388) 142; ARO VS. FABOLUDE (1981) ANLR 1983; OKUKUJE VS. AKWIDO (2001) 10 WRN 1; ADONE VS. IKEBUDU (2001) 7 MJSC 170″. PER SIDI DAUDA BAGE, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
PETER MUTAIRU Appellant(s)
AND
MADAM ATOKE Respondent(s)
SIDI DAUDA BAGE, J.C.A., (Delivering the Leading Judgment): This is an appeal against the ruling of Delano C J, of the High Court of Justice Abeokuta Ogun State in Suit No. AB/147 98 – Peter Mutairu and anor vs. Akanbi Solomon and 2 ors delivered on the 18th of March, 1999. Briefly, the facts culminating in this appeal are as follows:-
The present Appellant in this appeal had claimed against the Respondents jointly and severally as follows:-
(1) “The sum of N10,000,000:00 (Ten Million Naira) being damages for the trespass committed by the Defendants, their agents, servants and privies when they unlawfully entered the plaintiffs land situate, lying and being at lbafo Village Ogun State and started clearing the land and destroying the crops thereon.
(2) Perpetual injunction restraining the Defendants, their agents, servants and privies from committing further acts of trespass on the said Land. ”
The Respondents as defendants replied the above claims of the Appellant by filing a Notice of preliminary objection dated and filed the 18th of August, 1998. The grounds for making the application are as follows:
(1) The issue raised in this action had been previously adjudicated upon between the parties by a court of competent jurisdiction in Suit No. 48/68/98 between Alhaji Modesola Taiwo & 2 ors (for themselves and on behalf of Mutairu Taiwo Family) versus Mr. Akanbi and 2 ors.
(2) Plaintiffs have appealed against the judgment in Suit No. AB/68/96 which appeals is still pending.
(3) This Suit is an abuse of court process.
The Learned trial judge at page 109 of the records the second (2nd) paragraph stated as follows:-
“Be that as it may, on the final analysis, since the respondents are caught in the web of the principle of res judicata, thus being estopped from bringing the action, the preliminary objection of counsel for the applicants succeeds as the court lacks jurisdiction “to entertain the suit for reason of res-judicata. The consequential effect of this is that the suits including the motions are liable to be dismissed, they are accordingly dismissed’91E2’9180’a6.”
The Appellants who were Respondents to the preliminary objection being dissatisfied with the ruling of the High Court, appealed to this court vide a Notice of Appeal dated the 22nd of March, 1999.
NOTICE OF APPEAL
TAKE NOTICE that the Appellants being dissatisfied with the Ruling of the High Court of justice, of Ogun State delivered on 18th March, 1999 doth hereby appeal to the: court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek relief set out in paragraph 4.
AND the Appellants further states that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5. (2) PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF:-
WHOLE DECISION
(3) GROUNDS OF APPEAL
(a) The Learned Chief Judge erred in law in holding as follows:-
On the final analysis, since the Respondents are caught in the web of the principle of res Judicata, thus being estopped from bringing the action, the preliminary objection of the applicants succeeds as the court lacks jurisdiction “to entertain the suit for reason of res iudicata
PARTICULARS
(i) There was no evidence to establish that the Land in dispute in Suit No. AB/68/96 is the same as the Land in dispute in Suit No. AB/147/98 (the action herein).
(ii) The Learned Chief Judge failed to consider and make a finding on the dispute plans marked Exhibits A and C attached to the 1st Appellants affidavit sworn to on 7th July, 1998 which were at all material time before the court.
(iii) The learned chief judge adopted a speculative approach in his conclusion that the parties in Suit Nos. B/68/96 and AB/147/98 are the same.
(iv) The claim in suit Nos. AB/68/96 and AB/117/98 are not the same.
(b) The Learned chief judge erred in Law in falling to call oral evidence to resolve the material issue of whether:
(i) The land in dispute in Suit No. AB/68/96 is the same as Suit No. AB/147/98 (the present action) and thereby came to a wrong decision when the deposition in the affidavit and counter-affidavit are irreconcilable on the issue.
(C) The Learned Chief Judge erred in Law in holding that an appeal has not been filed.
PARTICULARS
(i) Both parties agreed that an appeal is pending vide paragraph 3 of the 1st Respondents affidavit and paragraph 3 of the Appellant’s counter-affidavit.
(ii) What is admitted needs no further proof
(iii) The court gave a strained interpretation to the decision in ADENUGA vs. FATUNDE (1996) 7 NWLR (Pt. 462) 516 and thereby came to a wrong decision.
PARTICULARS
(i) Res-judicata being a special defence must be specifically pleaded.
(ii) Issues involved in the matter called for oral evidence and formal tendering of documents.
RELIEF SOUGHT FROM THE COURT OF APPEAL:-
To set aside the judgment of the court below delivered on 18th March, 1999 and allows the Appellant’s appeal.
When the appeal came up for hearing on the 29th of March, 2011 Appellant’s counsel Afolabi Fashanu Esq. adopted and relied on the Appellant’s Brief of Argument dated 14th of February, 2002 and filed on the 22/5/2002, as well as the Appellant’s Response to the objection raised in the Respondents’ Brief of argument filed on the 2nd of March, 2009 and urged this court to allow the appeal. Counsel to the Respondents O. Oyewo Esq. also adopted and relied on the Respondents’ Brief of argument dated 4th of February 2003, and filed same date, but it was deemed properly filed and served on the 14th of April 2003.
Arising from the four (4) Grounds of appeal contained in the Appellant’s Notice and Grounds of Appeal, the Appellant has distilled the following two (2) issues for determination of this court and which are contained in page 4 of the Appellant’s brief of argument viz:-
(1) Whether the learned trial judge was right to have decided the issue of Res judicata as a preliminary point of law without having filed and completed pleadings if the answer is in the affirmative (which is not conceded) whether the learned trial judge was right in upholding the plea of Res judicata.
(2) Was the learned trial judge right in law in failing to call oral evidence to resolve the irreconcilable conflicts that were manifested in the affidavit evidence of both parties on issues which were material for determination of the action before him?
The Respondent at page 4 of his brief of argument formulated the following three (j) issues for determination as follows:-
(1) Is it mandatory to file pleadings before a preliminary objection to jurisdiction can be raised (Ground b and d)?
(2) Whether issues raised and decided upon in suit No. AB/68/96 are same as in the present case as to give rise to a valid and sustainable plea of Res judicata and/or issue Estoppel (Ground (a)
(3) Whether the Court is bound to admit in evidence a photocopy of a document merely because parties consented to its admission (Ground C).
The Respondent at page 2 of his brief of argument raised a point of preliminary objection and urges this court to dismiss the appeal because:-
(1) Ground (a) of the appeal encompasses facts which were concealed by the appellants in the court below and upon which no decision was taken by that court.
Learned counsel to the Respondents further submitted that, the appellant cannot challenge the facts at this stage when they opposed the preliminary objection in the lower court strictly on point of Law that is the judgment relied upon was not a final judgment. Appellant’s counsel had the opportunity of establishing these facts but failed or neglected to utilize same and therefore denied the Lower Court the opportunity to consider them. The Lower Court itself commented on this approach in its ruling. Since leave was obtained to canvass those facts this court should strike out ground (a) of the appeal and the issue formulated there on. See:- Edebiri vs. Edebiri (1989) 1 NWLR (Pt. 498) 165 at 176; Oredoyin vs. Arowolo (1989) 4 NWLR (Pt. 114) 172′ Ajide vs. Kelani (1985) 3 NWLR (pt. 12) 248 at 169; Adegoke Motors Ltd vs. Adesanya & Aqor (1989) 3 NWLR (Pt. 109) 250 at 266.
Learned counsel further submitted that since it was not the case of the appellant that the depositions in the supporting affidavit could not sustain the relief sought in the Preliminary objection, it is now too late in the day to raise that issue on appeal.
Learned counsel further submitted that Grounds (b) and (d) raise fresh points not canvassed before nor considered by the lower court and leave was not obtained to raise them. Ground (b) offends the provisions of Order 3 rule 2 court of Appeal Rules 2002, the counter affidavit which was not served, is as good as not having been filed. The Lower Court ought not and would not have considered it if this fact had been brought to its attention before the ruling as service of process is a condition precedent to jurisdiction. As the respondents were denied the opportunity of responding to the counter-affidavit in the court below it will be unconscionable for the appellant to seek to rely on it now. And since the Lower Court considered the counter-affidavit in error this court is urge to strike it out under section 16 of the court of Appeal Act. In any event the counter-affidavit was not even referred to by counsel in his oral submission before the court and is therefore deemed abandoned. The effect is that the facts as presented by the respondent were admitted and consequently the finding of the court with respect to the facts is conclusive.
Learned counsel submitted further that, ground (C) has no effect whatsoever on the appeal even if conceded it amounts to a mere academic exercise. All the issues formulated by the appellants having been derived from these incompetent grounds are also incompetent. See; – Babalola vs. The State (1989) 4 NWLR (Pt.115) 264 at 270; Adegoke Motors Ltd. vs. Adesanya (supra); I.C. Osondu Ltd. vs. Soleh Boneh Ltd. (2000) 5 NWLR (Pt. 656) 322 at 355.
Learned counsel further submitted that the issue of resolution of conflicts in affidavit (appellant’s issue No. 2) presupposes the existence of a counter-affidavit which as pointed out earlier was neither served nor relied upon but was considered in error by the lower court.
Learned counsel further submitted that it is not the appellant’s case that they pointed out conflicts in the affidavits to the lower court and it failed to resolve them. Rather their case is that the court did not resolve conflicts therein, which would have amounted to descending into the arena.
The Appellant filed on the 2/3/09 what he captioned ‘Appellant’s Response to the ‘object ion raised in the Respondents’ brief of argument deemed properly filed and served on the 29/4/09.
Learned counsel to the Appellant submitted that the position of the Appellant at the High Court was that his case was not caught with the principle of Res judicata which was raised by the Respondent at the High Court upon which the Appellant case was dismissed.
Learned counsel submitted further that, the argument of the Respondents cases cited by the Appellant’s counsel Edebiri (supra) Oredoyin (supra) and Adegoke Motors (supra) are also misconceived in the sense that the position of the appellate court in the said cases is that counsel are not allowed to change their case at the appellate court from the position taken at the trial court, appellant’s case was not caught by the principle of res judicata. Consequent to the above he urge the court to discountenance the Respondents argument on the contention that the Appellant had change his case at the Appeal court and hold that the two cases cited by the Respondent’s counsel in his brief of argument has no relevance to this case.
Learned counsel further submitted that, the contention of the Respondents counsel is that he was not served with the counter-affidavit of the Appellant at the Lower Court; this is an act of crying when the head is off, the Respondent’s counsel failed to bring the attention of the court to the fact that they were not served with the counter-affidavit filed at the Lower Court and is deemed to have waived his right to complain of same. See:- definition of waiver by Black’s Law Dictionary (7th edition) page 1574; Fasade vs. Babalola (2003) 1 FWLR (Pt.161) 1707 at 1721 -1722.
Learned counsel submitted finally that the Respondents preliminary objection is unfounded and be dismissed and the case be heard on merit.
This court took a hard look at the submission made by the learned counsel to the Respondent, in arguing the Preliminary objection raised by him, dated and filed the 26/9/06, and the reply made by the appellant’s counsel, in response to the preliminary objection. It is very clear from the record of the court that, the issue which became the subject matter of this appeal, was first raised by the Respondents at lower court via a Notice of preliminary objection dated the 18th of August, 1998. For the purposes of clarity this court will reproduce that Notice of preliminary objection NOTICE OF PRELIMINARY OBJECTION
TAKE NOTICE that at the hearing of this suit the hearing of this suit the Defendant/Applicants will raise a preliminary objection notice whereof is given thus: –
“That the Honourable court lacks jurisdiction to entertain this suit for reason of res judicata.
GROUNDS FOR MAKING THIS APPLICATION
(1) The issues raised in this action had been previously adjudicated upon between the parties by a court of competent jurisdiction in Suit No. AB/68/96 between Alh. Modesola Taiwo & 2 ors (for themselves and on behalf of Mutairu Taiwo family) versus Mr. Akanbi and 2 Ors.
(2) Plaintiffs have appealed against the judgment in Suit No. AB/68/96 which appeals is still pending.
(3) This Suit is an abuse of court process,
DATED THIS 18TH DAY OF AUGUST, 1998
(SGP) OYESOLA OYEWO ESQ
DEFENDANT’S SOLICITOR,
4 MAIYEGUN AVENUE IDI-ARABA
ABEOKUTA.
The Plaintiff/Respondent filed a counter affidavit of 7 paragraphs to the preliminary objection, In his ruling of the 18th of March, 1999, based on the preliminary objection raised by the learned trial judge at the lower court contained at page 109 of the records stated:
“Be that as it may, on the final analysis, since the respondents are caught in the web of the principle or res judicata, thus being estopped from bringing the action, the preliminary objection of counsel for the applicants succeeds as the court lacks jurisdiction “to entertain the suit for reason of res judicata”. The consequential effect of this is that the suit including the motions are liable to be dismissed’.”
The Notice of Appeal filed by the Appellant before this court dated 22/3/99 states as follows:
NOTICE OFAPPEAL
TAKE NOTICE that the Appellant being dissatisfied with the Ruling of the High Court of Justice, of Ogun State delivered on 18th March, 1999 doth hereby appeal to the court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of appeal seek relief set out in paragraph 4 .”
This is exactly the appeal before this court. It is therefore not correct as argued by the learned counsel to the Respondent in his preliminary objection that the Appellant on this appeal had changed the case he made at the trial court. It is correct as stated by the Respondent in his preliminary objection that an appeal is simply the continuation of the case put forward in the court of first instance, the authorities of Edebiri vs. Edebiri (supra) Ajide vs Kelani (supra) are quite apt on this point, but in the present application before this court the Appellant is not caught by the fact of changing his case on appeal from the one filed at the lower court. The Appellant right exercised his right of appeal, against the ruling of the Lower Court of the 18/8/99 on a preliminary point raised by the respondent himself.
The Supreme Court has since settled this position. The Apex Court stated that “It is the Law that where there is an Appeal on some points on a Decision, the Appeal stands or falls on those points Appealed against only while the other points or Decisions not appealed remain unchallenged. See: – Micheal vs. The State (2008) 5 – 6 S.C. (Pt.11) 203.
On the whole the preliminary objection raised by the Respondents in their brief of argument dated 4/2/03, contained at pages 2 and 3 of their brief has no leg to stand upon and it is hereby dismissed by this court.
In consideration of the main appeal learned counsel to the appellant in arguing issue 1 submitted that, the only processes before the court at the stage the notice of preliminary objection was brought are writ of summons, applications for interim and interlocutory injunction. The party who is relying on Estoppels or Res judicata must specifically plead it. See:- Omotosho vs. Oloriegbe (1988) 4 NWLR (Pt.87) 227; Ukaegbu vs. Ugoji (1991) 6 NWLR (Pt.196) 127 at 156. The state of the law is that Estoppel or Res judicata can only be raised or pleaded in statement of claim or defence being a special defence. See: – Yoye vs. Olubode (1974) 1 ANLR (Pt. 2) 118. It was therefore premature for the learned trial judge to take the issue of Res judicata before pleadings particularly when the facts purportedly relied upon in support of the plea could not be succinctly set out under the relevant rules of pleadings.
Learned counsel submitted further that, the documents relied on by the Respondents in support of the plea were merely attached as Exhibits to the affidavit in support of the application without any evidence led thereon. It is not surprising that the court could not and indeed did not make any finding on any of the documents apart from speculations indulged upon by the court.
Learned counsel further submitted that, Res judicata can only be validly applied without in dept examination and consideration of pleadings filed in an earlier case: and the present one in which it is sought to bar. The issues involved here called for oral evidence and formal tendering of documents which could not be done at the preliminary stage at which the plea was raised since the issues involved would be better appreciated after trial than at the preliminary stage. See: – Ayuba Oduonosu vs, Taiwo Oluwole & Ors certified judgment of Court of Appeal (unreported suit No. CA/I/20/87 delivered on 9th January 1989.
Alternatively learned counsel to the Appellant submitted on the operation of Res judicata. It has been firmly established by long line of decided cases that the doctrine of Res judicata to operate, the party relying on it must establish the co-existence of the following conditions namely:
(i) That the’ parties or their privies, as the case may be are the same in the present case as in the previous one
(ii) That the issue and subject matter are the same in the previous suit as the present action.
(iii) The court which pronounced the judgment must be a court of competent jurisdiction and the decision must be final. See Nwaneri vs. Oriuwa & Ors. (1959) 4 FSC 132; Alase vs. Olori Ilu (1964) 1 All NLR 390; Adomba vs. Odiese (1990) 1 NWLR (Pt.25) 165 at 184; Olukoya vs. Fatunde (1996) 7 NWLR (Pt.462) 576; Etiti vs. Ezobibi (1976) 12 S.C. 123 and Ajuwon vs. Adeoti (1990) 2 NWLR (Pt.217) 286.
In reply to the submission of the Appellant’s counsel to their issue No. 1 Respondents counsel submitted that, it is trite law that objection to jurisdiction can be taken any stage of the proceedings but where raised timeously, it should bee considered in limine. See:- Order B Rule 1 High Court of Ogun State (Civil Procedure) Rules 1987.
Learned counsel further submitted that the jurisdiction of a court will be ousted on an upholding of a plea of estoppels, it is therefore absurd to suggest that the lower court should proceed to order pleadings or call for evidence as if the affidavit before the court was not evidence in itself. See:- NDIC vs. CBN. (2002) 7 NWLR (Pt. 776) 272 at 281.
A very convenient position to start by this court in the consideration of issue No. 1 argued from both sides is the admission made by the learned counsel to the Respondent in his brief of argument at page four (4), paragraph 5:00 lines 10 – 15 wherein he stated:
“Definitely the jurisdiction of a court will be ousted on an upholding of a plea of estoppels, it is therefore absurd to suggest that the lower court should proceed to order pleadings or call for evidence as if the affidavit before the court was not evidence itself.”
This is a clear admission to the argument of the Appellants, that at the time when the Notice of preliminary objection of the Respondents dated 18/8/1998 was filed, the only processes before the court are writ of summons, application for interim and interlocutory injunctions. The Respondents raised the plea of Res judicata in their Notice of preliminary objection as a determinant factor to the jurisdiction of the court to entertain the suit of the Appellant at the lower court. The appellant as plaintiff filed a counter affidavit challenging the competency of the Notice of preliminary objection and argued that their case at High court was not caught with the principle of Res judicata which their case was finally dismissed or by the lower court. This court is of the view that the arguments of both counsel to issue No. 1 is not on what the plea of Res judicata is in law, but rather at what stage of the proceedings can a party raise and rely on the plea of Res judicata. The Respondents admitted they raised the plea of Res judicata before pleadings were filed by the parties. This is an admission. An admission is a principle deeply enshrined in our jurisprudence that what is admitted do not require to be proved for the simple reason, among others that “Out of the abundance of ‘he heart the mouth speaketh” and that no better proof is required than that which an adversary wholly and voluntarily owns up. See:- Chukwuemeka Odumegwu Ojukwu vs, Dr. Edwin Onwudiwe & ors (1984) 2 S,C, 15 at 88; Seismograph Service (Nigeria) Ltd, vs. Chief Keke Ogbenegweke Eyuage (1976) 9 & 10 S.C. 135 at 146; Adeyemi Ogunnaike vs. Taiwo Ofayemi (1987) 3 S.C, 213 at 247,
The Appellants counsel had stated that the state of law is that estoppels or Res judicata can only be raised or pleaded in a statement of claim or defence being a special defence. Appellant relied on the authority of Yoye Otubode (1974) 7 ANLR (Pt. 2) 118. The Appellant’s counsel therefore submitted that it was premature for the learned trial judge to take the issue of Res judicata before pleadings particularly when the facts purportedly relied upon in support of the plea could not be succinctly set out under the relevant rules of pleadings.
The question is, at what stage of the case can a desirous party rely on the plea of Res judicata? The Supreme Court has settled this issue in its recent decision in Ikotun vs, Oyekanmi & Anor, (2008) 4 – 5 S.C. (Pt. 1) 1 wherein the Apex Court stated: –
“It is settled law that only a Defendant or plaintiff in reply to Defendants pleading in Defence to an issue raised therein can plead Res – judicata ……”(underline mine) Also see: – FEI BUSINESS ENTERPRISES LTD & ANOR VS. CREDIBLE FINANCE AND INVSTMENTS LTD. (2002) 30 WRN 32; OLORIEGBE VS. OMOTOSHO (1993) 1 NWLR (Pt 270) 386; EZENYA V. OKEKE (1995) NWLR (PT.388) 142; ARO VS. FABOLUDE (1981) ANLR 1983; OKUKUJE VS. AKWIDO (2001) 10 WRN 1; ADONE VS. IKEBUDU (2001) 7 MJSC 170.
The argument is now settled beyond doubt; the Appellant/Respondent is perfectly correct in his submission that at the time the trial court heard and determined the preliminary objection placed before it which raised the plea of Res judicata, the plea of the preliminary objection was premature, as the law is settled that such a plea can only be raised in the pleading of the plaintiff or defendant as the case may be. In the instant case the plea was raised, argued and acted upon by the learned trial court, which by law is premature, and thus goes to no issue. The raising of Res-judicata at that premature stage of the case at the lower court and for the court to have acted upon it was a void act. It is like putting something on nothing, and expects it to stay. See: – The Dictum of Lord Denning (of blessed memory) in U.A.C, vs. Macjoy (1962) A.C. 52; where the learned law Lord as he then was stated:-
“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado. Though it is sometimes convenient to have the court declared it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
There is nothing more to add, as the entire proceeding in suit No. AB/147/98 has collapsed on issue No.1. Issue No.2 of the Appellant’s brief of argument becomes a mere academic exercise.
In the final analysis, the appeal is allowed by this court. The ruling of Delano C.J. in suit No. AB/147/98 delivered on the 18th of March, 1999 is hereby set aside by this court.
2. This court has ordered that the Suit No. ABJ/147/98, the subject of this appeal; be remitted back to the High Court of Justice Abeokuta Ogun State, to proceed to trial.
3. By the order of this court, the Honourable Chief of Ogun State is to reassign the suit to another judge for adjudication.
MODUPE FASANMI; J.C.A: I have read the lead Judgment of my learned brother, S.D.BAGE,
J.C.A, and I agree with his reasoning and conclusions.
I too allow the appeal and set aside the ruling of the lower court in suit no, AB.147/98 delivered on the l8th of March, 1999. I abide by all the consequential orders made in the judgment.
JOSEPH SHAGBAOR IKYEGH, J.C.A: I read with satisfaction the advance copy of the judgment prepared by my learned brother, Bage, J.C.A., and adopt Same as mine.
The plea of res judicata is a special defence. A party intending to rely on it in courts pleadings are in use as the court below is required to raise the plea in the pleadings.
The court below was, with maximum respects, wrong to take the issue of res judicata on a preliminary objection based on a motion when issues were not joined by the parties on the pleadings.
The determination of the action at the preliminary stage of the proceedings was without doubt premature and contrary to established procedure – see the Supreme Court case of Amawo and Another v. Attorney-General North Central State & Ors (1973) N.N.L.R 118 at 124 – 125 where Coker, J.S.C., held in agreement with Fatayi-Williams and Irikefr3 J.J.S.C (all of blessed memory now) thus:
“We think it well established that where there should be pleadings res judicata should be properly set as a plea in de fence, and the particulars of such a plea should also be included in such a way as should be sufficient t o apprise the plaintiff of the matters being relied upon as stopping him from litigating or relitigating a particular issue or case. Where there are no pleading it is of utmost necessity that the evidence le clearly identified in order to establish and to make it clear the purpose of the evidence and what it is intended to establish by the evidence. In the present case neither of those courses was adopted and we are in agreement with learned counsel for the appellant who had rightly complained before us that in the determination of the application on res judicata the proceedings was misconceived to the detriment of the plaintiffs.
What we say in a nutshell is that where pleadings are filed res judicata beign a plea should be raised as such. Where pleadings are not filed then it should be raised by evidence at the earliest opportunity. In Spencer Bower: Res Judicata (2nd edition page 145 paragraph 410, the following statement of the procedural law and with which we are in full agreement, it set out:
“The pleading in which the estoppels must be raised, if it is pleadable at all, is that which answers the first pleading on the opposite side manifesting an unmistakable intention to” “canvass the merits of the res judicata, and containing allegations contradictory of any question of law or issue of fact thereby determined. If the issue of fact thereby determined. If the statement of claim (or declaration, or bill in former times) sets out matter of this character, then the defendant must plead the estoppels in this plea, answer, or defence, if such matter first appears in a plea, or defence, when it is for the plaintiff to plead the estoppels in his replication or reply; if the challenge is not made until the replication or reply, the defendant smut take it up in his rejoinder”.
So, it must be, for, as a plea, res judicata is a bar to any further action; and, as evidence, it is conclusive of the issue or points so raised. In the present case a great deal of the issues of fact were presented by way of affidavits before the learned trial judge but we are firmly of the view that the learned trial judge was in error of law in deciding such crucial and weighty issues on affidavits rather than on evidence viva voce.”
It is for the above given reason and the comprehensive reasons rendered in the judgment of my learned brother, Bage, J.C.A., I too would allow the appeal and abide by the consequential orders contained in the said judgment.
Appearances
S.O. Sanni Esq.,For Appellant
AND
S.O. Oyewo Esq;For Respondent
