PRINCESS ENANG EPHRAIM ADAM & ORS v. MR. BASSEY EWA HENSHAW & ORS (2014)

PRINCESS ENANG EPHRAIM ADAM & ORS v. MR. BASSEY EWA HENSHAW & ORS

(2014)LCN/7508(CA)

In The Court of Appeal of Nigeria

On Thursday, the 6th day of November, 2014

CA/C/88M/2007

RATIO

EQUITABLE INTERESTS: MORTGAGE; THE OBLIGATION A MORTGAGEE OWES A MORTGAGOR

PRACTICE AND PROCEDURE: WRIT OF SUMMONS; THE CONSEQUENCE OF COMMENCING A PROCEEDING WITHOUT A WRIT OF SUMMONS

What it means is that the entire proceeding was commenced without a Writ of Summons which amounted to putting something on nothing which can not stand and is bound to be struck-out. A fortiori, any writ issued prior to grant of leave when leave is required is a nullity and same would render the entire proceeding incompetent. See Obaro v. Hassan (2013) ALL FWLR (Pt. 687) Page 677, Equity Bank v. Halico Nig Ltd. (2006) ALL FWLR (Pt. 337) page 438. per. PAUL OBI ELECHI, J.C.A.

PRACTICE AND PROCEDURE: PLEA OF ESTOPPEL; WAYS IN WHICH THE PLEA OF ESTOPPEL CAN BE CREATED, THE MEANING OF ESTOPPEL BY PER REM JUDICATAM AND WHAT A RESPONDENT MUST SHOW IN ORDER TO SUCCEED ON A PLEA OF ESTOPPEL BY JUDGMENT

The plea of Estoppel can be created in several ways. The common Law recognises three types which are:

Estoppel by Record or Quasi Record
B. Estoppel by Deed and
C. Estoppel in Pais

The one that concerns us in this appeal is Estoppel by Record. It is known as Estoppel by Per Rem Judicatam. The Blacks Law dictionary, 7th Edition defines estoppels thus:
“Affirmative defence barring a party from relitigating an issue determined against that party in an earlier action, even if the second action differs significantly from the first one. Also, tend issue preclusion, issue estoppels, direct estoppels, estoppels by judgment, estoppels by Record, estoppels by verdict, cause of action estoppels, estoppels Per rem judicatam.” Once a decision is pronounced between parties by a court of competent jurisdiction, the decision can not be contradicted by any of such parties in any subsequent litigation between them in respect of the same subject matter. See Agbogunlavi v. Depo & 3 Ors (2008) 1 SC 158 at 171 and Cardoso v. Daniel (1986) 3 NWLR Pt. 20 page 1.

On the other hand, in order for the Respondents to succeed on a plea of Estoppel by judgment as in the case at hand, it is necessary for them to show:

That the subject matter in dispute is the same, namely that every thing that is in controversy in the second suit as the foundation of the claim for relief was also in controversy or points to controversy in the first suit.
That it came in question before a Court of competent jurisdiction.
That the result was conclusive so as to bind every other Court. As a consequence therefore, it is incumbent on a party relying on a plea of Estoppels Per Rem Judicatam that he must establish the following:
i. The parties or their privies are the same, that is to say, the parties involved in both the previous and the present proceedings are the same;
ii. The claim or the dispute in both the previous and the present action are the same;
iii. The Res i.e. the subject matter of the litigation in the two cases is the same;
iv. The decision relied upon to support the plea must be valid, subsisting and final; and
v. The Court that gave the previous decision relied upon to sustain the plea must be a Court of competent jurisdiction.

Each of these requirements must be proved and it is not a matter to be drawn by inference. Once any of the requirements is not proved, the plea of Estoppel Per Rem JudicatamorRes Judicatam may be at large and inapplicable. See Oloriegbe v. Omotosho (1993) 12 NWLR (Pt. 270) 386, (1993) 1 SCNJ 30. The consequence of the above is that where the plea of the principle is proved, it oust the jurisdiction of the Court to go into the question already decided. And so, in the case of Okukuje v. Aknido (2001) 3 NWLR (Pt. 700) page 261 at 301, (2001) 1 SCNJ 245, the Supreme Court of Nigeria per Kutigi, JSC (as he then was and later CJN) held that:
“Where therefore any of these essential ingredients is missing, a plea of Estoppels Per Rem Judicatam must fail” See also Sava v. Suswan (2013) 2 WRN 63. per. PAUL OBI ELECHI, J.C.A.

ACTION: RELITIGATING AN ACTION AND ISSUES; WHETHER A SUIT THAT HAS BE LITIGATED AND DECIDED ON CAN BE RELITIGATED

Therefore the causes of action and issues raised in this suit have been litigated and decided in the two previous suits. The suits can not therefore be litigated again. The rationale behind not allowing a case previously litigated to be revisited again is to have an end to litigation. Also to prevent a mischief of allowing a party to be vexed twice upon the same ground. In Oshodi v. Eyifunmi (2000) 11 WRN 86, (2000) 13 NWLR (Pt. 684) p.298, (2000) FWLR (Pt. 8) page 127, (2000) 7 SCNJ 295 (2000) 7 SC (Pt. 2) 145 (2000) LRCN 2877, Adomba v. Odiase (1990) 1 NWLR (Pt. 125) page 165. per. PAUL OBI ELECHI, J.C.A.

COURT: ABUSE OF COURT PROCESS; THE MEANING OF THE ABUSE OF COURT PROCESSES

An abuse of court processes is an improper use of judicial process by a party in litigation. It may occur in many ways like instituting a multiplicity of actions on the same subject matter against the same opponent on the same issue or instituting different actions between the same parties in different courts even though on different grounds. See Okorodudu v. Okoromadu (2002) 23 WRN 188, Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) page 156. per. PAUL OBI ELECHI, J.C.A.

JUSTICES:

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria

JOSEPH JUDE JELLA Justice of The Court of Appeal of Nigeria

Between

1. PRINCESS ENANG EPHRAIM ADAM
2. ALHAJI EYO EPHRAIM ADAM
3. MR. AUGUSTINE B. ADAM
4. UMOH B. ADAM
5. GEORGE B. ADAM
(Suing as the Administratrix/Administrators and beneficiaries of the Estate of Edidem Bassey Eyo Ephraim Adam 111 deceased) Appellant(s)

AND

1. MR. BASSEY EWA HENSHAW
2. ITA OFFIONG OKOHO
3. ELDER ITA OFFIONG NSEMO
4. ICON (MERCHANT BANKERS IN LIQUIDATION)
5. NIGERIA DEPOSIT INSURANCE CORP Respondent(s)

PAUL OBI ELECHI, J.C.A. (Delivering the leading Judgment): This is an appeal against the judgment of the Federal High Court Calabar Division in suit No. FHC/CA/CS/102/2000 delivered on the 22nd day of February, 2007 dismissing the Plaintiffs/Appellants suit. Against the said decision, the Plaintiffs/Appellants have now filed a Notice and Grounds of Appeal to this court to enable them ventilate their grievances.

Hitherto, the plaintiffs by a Writ of Summons and Statement of Claim filed in Court on the 6th day of October, 2000 claims from the defendants jointly and severally as follows and set out in paragraph 28 (1) (2) (3) (4) (5) (6) (7) and (8) of the Amended Statement of Claim pursuant to an order of Court dated 10th July, 2002.

1) A Declaration that the purported sale of the property at No. 27 Edgerly Road Calabar by Icon Limited (Merchant Bankers) to Ita Offiong Okoho as evidenced by the Deed of Assignment dated 1st February 1995 and deed of Release dated 25th November, 1992 is wrongful, illegal, null and void on Grounds that Ita Offiong Okoho is a non existing person.

2) A Declaration that the Deed of Assignment dated 1st February, 1995 and the Deed of Release dated 25, November 1992 transferring the aforesaid property to Ita Offiong Okoho is shredded in fraud and therefore illegal, null and void.

3) An order setting aside the purported sale and the release of the property at No. 22 Edgerly Road Calabar by Icon Ltd (Merchant Bankers) to Ita Offiong Okoho.

4) An Order setting aside the purported Deed of Release dated 25th November, 1992 by Deed of Assignment dated 1st February, 1995 made by 4th Defendant with respect to No. 27 Edgerly Road Calabar for being irregular and improper.

5) A Declaration that Elder Ita Nsemo is not the same Person as Ita Offiong Okoho.

6) A Declaration that Elder Ita Offiong Nsemo is not the same Person as Ita Offiong Okoho.

7) Six Million Naira damages for trespass.

8) Perpetual injunction restraining the defendants particularly the 2nd defendant, their agents, servants, privies, assigns or otherwise howsoever from interfering with the Plaintiffs enjoyment of the property at No. 27 Edgerly Road Calabar.

The 2nd and 3rd Defendants/Respondent filed their own Amended Statement of Defence on the 21st September, 2004 while the 3rd and 4th Defendants/Respondents filed their joint Statement of Defence via a Motion on Notice for Extension of time on the 28th October, 2004. The plaintiffs also filed a Reply to the Statement of Defence of the 4th and 5th Defendants/Appellants. Worthy of note is that the plaintiffs/Respondents though served with the originating processes in the suit at the court below refused to enter appearance nor file any pleadings in defence of this suit. On the other hand, the 4th and 5th Defendants/Respondents only filed their Statement of Defence but did not call evidence in this case but rather through their counsel only cross-examined PW1 and nothing more.

The facts leading to this appeal are that on the 12th day of October, 2000, the trial court granted leave to the Appellants to sue in a representative capacity. Upon the grant of the said leave, no other Writ of Summons was presented to the Court for issuance apart from the one filed prior to the grant of leave and there is only one writ of summons for the entire suit. At the hearing of the suit, the trial court found the suit incompetent on grounds of being caught by the doctrine of Estoppel. No further decision was taken on the merit of the case. A consequential order of dismissal was also made by reason of finding the suit.

To argue the appeal, the Appellants distilled four issues for the just determination viz:

ISSUE No. 1
3.2 Whether the Learned trial Judge was right in law in holding that suit no. C/532/96 – Prince Val Adam 111 v. Ita Offiong Okoho & 3 Ors and suit no. C/440/96, Ita Offiong Okoho v. Icon Merchant Bank Ltd constituted Estoppel Per Rem Judicatam to the Plaintiffs’ case when the pre-conditions for the applicability of the said doctrine do not co-exist commutatively.

ISSUE No. 2
3.3 Whether the Learned trial Judge was justified in law in refusing to consider and pronounce upon some cardinal, fundamental germane and decisive issues raised and canvassed by the Plaintiffs’ Counsel of the court below but merely treated those issues as academic questions and arguments.

ISSUE No. 3
Whether in the circumstance of the case before the trial Court, the Plaintiffs could have been expected to prove the allegation of fraud against the 2nd or 3rd Defendant or 4th Defendant beyond reasonable doubt.

ISSUE No. 4
3.4.1 Whether by the very nature and circumstances of the case before the Court below, the dismissal of the Plaintiffs’ case did not occasion a grave miscarriage of justice.

In arguing issue No. 1 distilled from Ground One of the Grounds of Appeal, Learned counsel submitted that for the equitable defence of Estoppel Per Rem Judicatam to avail any party in any judicial proceeding, it must be shown by credible evidence that all the consideration or factors for the applicability of the principle must co-exist cumulatively, namely:

I. The parties or their privies must be the same in the earlier and present suit.

II. The issues and subject matter must be the same in the two suits.

III. The adjudication in that previous decision must be between the parties. See Olowo Okukuye v. Odedeminmo Akwido (2001) SCMR 113, Anthony Ehidi-mhen v. Alhamdu Musa & Anor (2002) SCQR (Pt. 1) page 367.

The above factors, Learned Counsel contended, were not present in the case before the trial judge for his Lordship to uphold that Estoppel Per Rem Judicatam applied. The parties, he said, are not the same for the principle to apply. See Balogun v. Ode (2007) 4 NWLR (Pt. 1023) Page 1, Achiakpa v. Nduka (2001) 14 NWLR (Pt. 734), Oke v. Atoloye (No. 2) (1986) 1 NWLR (Pt. 15) Page 241, Yoye v. Olubode & Ors (1974) 1 ALL NLR (Pt. 2) 118, Fadiora v. Gbadebo (1978) 3 SC 219. All the same, the burden of establishing the plea is on the party who set it up.

Learned Counsel submitted that Exhibits H, J and K tendered by the 2nd and 3rd Defendant/Respondents in suit No. C/534/96 at the lower Court to establish Estoppel Per Rem Judicatam do not show that the considerations or factors of Estoppel Per Rem Judicatam do not co-exist at all to warrant its application in the case before the Court. The parties, the issues and claim are not the same as could be seen on pages 51-53 of the Record of Appeal. The Record of Appeal shows that the reliefs claimed in suit No. C/532/96 i.e. Prince Val Adam III v. Ita Offiong Okoho, Exhibit H and when compared with the reliefs in suit No. FHC/CA/CS./102/2000 shown on Pages 121-122 of the Record of Appeal shows that the defence of Estoppel Per Rem Judicatum can not apply. As a result therefore, Learned Counsel submitted that the learned trial Judge was rather hasty in basing his decision on the sole consideration of Estoppel Per Rem Judicatam. The 2nd and 3rd Defendants/Respondents did not establish the pre-conditions between suits No. C/532/96 (Exhibit H) and suit No. C/440/96 (Exhibit K) and the case at the lower Court. The lower Court, he submitted, was therefore wrong in law to hold that Exhibits H and K constitute Estoppel Per Rem Judicatam to the Plaintiffs/Appellants’ case at the lower Court. He then urged this Court to set aside the judgment of the lower court on this Ground and resolve this issue in favour of the Appellant.

On issue No. 2 – Whether the Learned trial Judge was justified in law in refusing to consider and pronounce upon some cardinal, fundamental, germane and decisive issues raised, formulated and canvassed by the Plaintiff’s Counsel but merely treated the same issues as academic questions and arguments. Learned counsel here contended that the lower court did not consider or give dispassionate pronouncements on various issues raised on page 368 of the Record of Appeal but rather dismissed same with a wave of the hand as being merely academic voyage or argument even though they are not. This, he submitted, has occasioned a miscarriage of justice against the Plaintiff/Appellants and called on this Court to intervene. See Ojoh v. Kamah & Ors (2005) 18 NWLR (Pt. 523) Page 557.

The issues which the trial Court failed to consider include:
I. Whether the 1st Defendant acted within the confines of the power donated to him vide Power of Attorney dated the 18th day of May, 1982 by setting the foundation or the stage for the sale and or alienation of No. 27 Edgerly Road, Calabar.

II. Whether from the facts and circumstances of this case the 2nd or 3rd Defendants could qualify as bona fide purchaser without notice of any encumbrance or limitation on the property at No. 27 Edgerly Road Calabar as seen from pages 300-3006 of the Record of Appeal.

III. Whether the 4th Defendant acted in good faith and was justified in Law in the sale of the property at No. 27 Edgerly Road, Calabar. See pages 340-348 of the Record of Appeal.

It is Learned Counsel’s contention that the non-consideration of the live issues formulated and canvassed by the Appellants’ counsel was not only a serious omission but a deliberate attempt to commit a travesty of justice which the Court of Appeal ought to invoke its powers under Section 15 of the Court of Appeal Rules and set aside the decision of the lower Court delivered on the 22nd February, 2007 and enter judgment to the plaintiff/Appellants. The decision of the lower Court could have been different if the lower court had considered and pronounced upon the issue of good faith of the 4th Defendant/Respondent in the whole transaction leading to the sale or alienation of No. 27 Edgerly Road, Calabar, the trial Court could have come to the inevitable conclusion that the 4th Defendant/Respondent acted malafide especially in the face of Exhibit F- plaintiff’s solicitors letter demanding for particulars of the loan obtained from the 4th Defendant vide a tripartite Agreement and Exhibit G- Caveat Emptor published in paper on the 3rd August, 1992 which the 4th Defendant ignored and went ahead to sell the property in dispute.

The Law is that the only obligation which a mortgagee owes a mortgagor in the sale of a mortgaged property is that he should act in good faith. See Ekaette v. National Housing Dev. Society (1973) 6 SC 183 at 201, West African Breweries Ltd v. Savannah Ventures Ltd (2003) 100 LRCN 1758. Instead of the procedure taken, the 4th Defendant could have taken other options of invoking the jurisdiction of the High Court of Cross River State under section 272 (1) of the 1999 Constitution of the Federal Republic of Nigeria to recover the mortgage sum with interest.

In his further submission, Learned Counsel for the Appellant stated that if the trial Court had considered and pronounced upon the issue of the 1st Defendant in the transaction leading to the sale or alienation of No. 27 Edgerly Road, Calabar, the 1st Defendant/Respondent could not have given what he does not have. See Anyaduba v. N.R.T.C. Ltd (1992) 5 NWLR (Pt. 243) page 535 Exhibit B- is the Power of Attorney which shows that the 1st Defendant had no power or authority to alienate the property at No. 27 Edgerly Road, Calabar. See Universal Vilcanising Nig. Ltd v. I.U.T.T.C (1992) 9 NWLR (Pt. 266) page 388, Gregory Obi Ude v. Clement Nwara & Anor (1993) 2 NWLR (Pt. 278) P 638.

Again, the issue of whether in the circumstance of this case, the 2nd or 3rd Defendants can be said to be a bona fide purchaser for value without any encumbrance, which said issue was not considered and pronounced upon which has caused a miscarriage of justice. It is Appellants’ Counsel’s contention that if the 2nd or 3rd Defendant had been prudent in his investigation of the root of title of the 4th Defendant, he would have discovered at the Land Registry Calabar that there were some encumbrance on No. 27 Edgerly Road, Calabar and therefore could have refused to invest his money on it. The 2nd Defendant, he contended, cannot be said to be honest, sincere or that he never colluded or participated in the wrong doing of illegal alienation or sale of the property in dispute which is the main plank of the Appellant’s complain at the lower Court. See Sajere v. Ivetor (1991) 3 NWLR (Pt. 179) 340, Animashaun v. Olojo (1990) 6 NWLR (Pt. 154) 11 Idehen v. Olaye (1991) 5 NWLR (Pt. 191) Page 344, Ogujido v. Ajemba (1991) 4 NWLR (Pt. 184) Page 203, Purvis v. Rayer 1821 a price 488 at 518.

The 2nd Defendant voluntarily assumed the risk of any defect in the uninvestigated title of the mortgagee (4th Defendant) though the 1st Defendant voluntinon fit injuria (voluntary assumption of risk). The 2nd and 3rd are mere volunteers.

ON ISSUE No. 3
Whether in the circumstances of the case before the trial Court, the Plaintiff could have been expected to prove the allegation of fraud against the 2nd and 3rd Defendants or 4th Defendant beyond reasonable doubt. This issue is distilled from ground 3 of the Appellants’ Grounds of Appeal. Learned Counsel said that the issue of fraud as pleaded on the part of the 2nd and 3rd Defendants for using the name of Ita Effiong Okoho instead of Ita Offiong Nsemo (the name of the 3rd Defendant) the said 3rd Defendant only held himself out as Ita Offiong Okoho for the purchase of the property at No. 27 Edgerly Road, Calabar. The transaction in this matter is not a criminal one that requires proof beyond reasonable doubt as envisaged under section 138(1) of the Evidence Act. See Arowolo v. Ifabiyi (2002) FWLR (Pt. 95) page 296. Alliance for Democracy v. Ayodele Fayose (2004) 1 FWLR (Pt. 222) Page I719. The Plaintiffs/Appellants could not have been expected to prove fraud beyond reasonable doubt especially when the 4th and 5th Defendants Counsel did not cross-examine the plaintiff’s witness on the issue of fraud nor offered any evidence in rebuttal of the allegations and evidence against it. The evidence is therefore unchallenged and can be acted upon. See A.B.U. Zaria & Anor v. Molokun (2004) ALL FWLR (Pt. 238) page 664. Therefore, the evidence expected by the Plaintiffs at the trial is a minimum one as there is no evidence offered by the 4th Defendant in challenge. See Buraimoh v. Bamgbose (1989) 3 NWLR (Pt. 109) Page 352. He then urged the court to set aside the judgment of the lower court.

ISSUE No. 4
Whether by the very nature and circumstance of the case before the court below, the dismissal of the plaintiff’s case did not occasion a grave miscarriage of justice. This issue is distilled from ground 4 of the Grounds of Appeal. Learned Appellants’ Counsel’s submission that from the state of the pleadings and evidence made there to by the Plaintiff case without properly evaluating the evidence before him by placing the totality of evidence on an imaginary scale to see which way the evidential pendulum titled. See Mogaji v. Odofin (1978) 4 SC 91. He then urged this Court to invoke its powers under Section 15 of the Court of Appeal Act 2004 to re-evaluate same and enter judgment for the Plaintiff in terms of the relief in paragraph 28 (1) (2) (3) (4) (7) and (8) thereof. See A.G. Leventis Nig Plc v. Akpan (2007) 17 NWLR (Pt. 1063) page 416.

In conclusion, Learned Appellants’ counsel urged the court to set aside the judgment of the lower Court delivered on the 22nd day of February, 2007 and enter judgment for the Plaintiff’s/Appellants in terms of the reliefs sought in their amended statement of claim.

In opposition, the 1st Respondent filed his brief of argument on the 26th April, 2013 and later followed it with an amended 1st Respondent’s brief of argument filed on the 28th May, 2014. All the processes were duly deemed as properly filed and served. By way of introduction, Respondents’ Counsel stated that the 1st Respondent was never served with the Notice of Appeal or any other processes in this suit except the hearing notice dated 7/12/12 which brought the knowledge of the suit to the 1st Respondent for the first time. However, the 1st Respondent on the 10th April, 2013 obtained copies of the processes in this appeal from Counsel to the 4th and 5th Respondents.

As for the facts of this case on Appeal, learned 1st Respondent’s Counsel stated that the Appellant commenced this suit with a motion exparte filed on the 6th November, 2000 seeking leave of Court to sue the 4th Respondent (in liquidation) along with the 5th Respondent. The Writ of Summons and other originating processes were also paid for and filed on the same day.

On the 12th day of November, 2000, leave of Court was granted and from then, no other Writ of Summons was presented to Court for issuance apart from the one filed prior to the grant of leave that means that it was only one Writ that was issued for the entire suit.

At the hearing of the suit the trial Court found the suit incompetent on ground of being caught by the doctrine of estoppels. No further decision was taken on the merit of the suit, and the suit was consequently dismissed as reflected on page 368 of the Records of Appeal. From the foregoing, the Appellant formulated a sole issue for determination viz:

“Whether the Appellants’ suit was competent upon failure to obtain prior leave of Court before commencement or issuance of Writ of Summons and if so whether the suit ought to be struck-out.”

Learned Counsel commenced his argument with a prayer that in the event of this appeal being allowed, this Court can strike-out suit No.FHC/CA/CS/102/2000 for being incompetent upon the alternative Ground of failure to have obtained prior leave of Court pursuant to S. 417 CAMA before commencement or issuance of the Writ of Summons in the said suit now subject matter of this appeal.

However, from the finding of the court below, Appellants suit was incompetent having been caught by the doctrine of Estoppel. Consequently, the court did not go into the merits of the case but rather considered doing so as mere academic expedition. Instead, the suit was dismissed as could be seen in the judgment. He stated that at the threshold, it is settled Law that an order of dismissal not flowing from the merit of the case and more so from the finding of incompetence has the effect of striking out. See the case of Panalpina World Transport Ltd v. J.B. Oladean International (2011) ALL FWLR (Pt. 564) page.

According to him therefore, Appellant’s suit No. FHC/CA/CS/102/2000 having been found incompetent by the court below also stood struck-out, notwithstanding the dismissal order in the Record of Appeal. The alternative ground upon which Appellants suit was incompetent and would still have been struck-out or dismissed, was on the failure to obtain prior leave of Court to proceed against a company in Liquidation, to wit: the 4th Respondent before commencement or issuance of the Writ of Summons for the entire suit. The Record shows that leave was granted on 12th November, 2000 as could be seen on page 32 of the Records while the only Writ of Summons for the suit was filed on the 6th day of November, 2000 prior to the grant of leave as seen and observed on page 4 of the Records. What it means therefore is that no other writ was filed to be issued after the leave of court granted on 12th day of November, 2000. So it stands to say that the suit was conducted without a Writ of Summons upon grant of leave. Failure to have filed a Writ of Summons upon grant of leave to commence the action was a violation of order 2 Rule 1 of the Federal High Court Rules, 2000, which provided for the commencement of action by Writ of Summons.

Appellants’ Writ of Summons issued on the 6th day of November, 2000 remains a nullity. These set of facts and materials were available before the trial Court and are still extent. So it is never too late for jurisdiction as an issue to be raised. See Elebanjo v. Davodu (2006) ALL FWLR (Pt. 328) Page 604 at 639.

As a result therefore, Learned Appellants’ Counsel submitted that had the trial Court considered separately that the foundation of the suit was based on a fundamental flawed Writ of Summons or no Writ at all, the suit would still be that of striking out suit No. FHC/CA/CS/02/2000 subject matter of this appeal. It does not even matter and is immaterial that the Court arrived at a right decision with a wrong reason. See Master Holdings v. Okefiena (2012) ALL FWLR (Pt. 648) page 921.

Finally, Respondents’ Counsel then urged the Court that in the event of allowing the appeal, the order of Ajakaiye J. be varied to that of striking out of the suit No. FHC/CA/CS/102/2000 for being incompetent upon the Ground of a fundamentally invalid Writ of Summons which affected the entire case. The appeal is therefore to be dismissed on those grounds.

I will start the consideration of the issues formulated for determination from the side of the Appellant’s point of view as hereunder listed.

Whether the Learned trial Judge was right in Law in holding that suit No. C/532/96 Prince Val Adam III v. Ita Offiong Okoho & 3 Ors and Suit No. C/440/96 – Ita Offiong Okoho v. Icon Merchant Bank Ltd constitute Estoppel per Rem Judicatam to the Plaintiffs case when the preconditions for the applicability of the said doctrine do not co-exist commutatively.

The plea of Estoppel can be created in several ways. The common Law recognises three types which are:

A. Estoppel by Record or Quasi Record
B. Estoppel by Deed and
C. Estoppel in Pais

The one that concerns us in this appeal is Estoppel by Record. It is known as Estoppel by Per Rem Judicatam. The Blacks Law dictionary, 7th Edition defines estoppels thus:
“Affirmative defence barring a party from relitigating an issue determined against that party in an earlier action, even if the second action differs significantly from the first one. Also, tend issue preclusion, issue estoppels, direct estoppels, estoppels by judgment, estoppels by Record, estoppels by verdict, cause of action estoppels, estoppels Per rem judicatam.”

Once a decision is pronounced between parties by a court of competent jurisdiction, the decision can not be contradicted by any of such parties in any subsequent litigation between them in respect of the same subject matter. See Agbogunlavi v. Depo & 3 Ors (2008) 1 SC 158 at 171 and Cardoso v. Daniel (1986) 3 NWLR Pt. 20 page 1.

On the other hand, in order for the Respondents to succeed on a plea of Estoppel by judgment as in the case at hand, it is necessary for them to show:

A. That the subject matter in dispute is the same, namely that every thing that is in controversy in the second suit as the foundation of the claim for relief was also in controversy or points to controversy in the first suit.

B. That it came in question before a Court of competent jurisdiction.

C. That the result was conclusive so as to bind every other Court. As a consequence therefore, it is incumbent on a party relying on a plea of Estoppels Per Rem Judicatam that he must establish the following:
i. The parties or their privies are the same, that is to say, the parties involved in both the previous and the present proceedings are the same;
ii. The claim or the dispute in both the previous and the present action are the same;
iii. The Res i.e. the subject matter of the litigation in the two cases is the same;
iv. The decision relied upon to support the plea must be valid, subsisting and final; and
v. The Court that gave the previous decision relied upon to sustain the plea must be a Court of competent jurisdiction.

Each of these requirements must be proved and it is not a matter to be drawn by inference. Once any of the requirements is not proved, the plea of Estoppel Per Rem Judicatam or Res Judicatam may be at large and inapplicable. See Oloriegbe v. Omotosho (1993) 12 NWLR (Pt. 270) 386, (1993) 1 SCNJ 30.

The consequence of the above is that where the plea of the principle is proved, it oust the jurisdiction of the Court to go into the question already decided. And so, in the case of Okukuje v. Aknido (2001) 3 NWLR (Pt. 700) page 261 at 301, (2001) 1 SCNJ 245, the Supreme Court of Nigeria per Kutigi, JSC (as he then was and later CJN) held that:
“Where therefore any of these essential ingredients is missing, a plea of Estoppels Per Rem Judicatam must fail”

See also Sava v. Suswan (2013) 2 WRN 63.

In the light of the above it would be necessary to proceed and strive to see whether the above conditions have been fulfilled in this case having regard to the facts and circumstances of this case. The judgments pleaded by the 1st Respondent as constituting Estoppel Per Rem Judicatam against the claim of the Appellant are suits numbers C/440/96 heard and determined at the then Calabar Judicial Division of Cross River State on the 26th September, 1996 (Exhibit K) and C/532/96 determined by the State High Court in Calabar on the 31st March, 2000. The crux of the reliefs sought in the later case is that the judgment in the former case be set aside on account that it was obtained by fraud. The question then is how does the combined effect of the judgments in the two cases operate as Estoppel Per Rem Judicatam against the present suit (FHC/CA/CS/102/2000).

In suit No. C/440/96, the 2nd Respondent – Ita Offiong Okoho was the Plaintiff in that suit. The reliefs sought are:

A. That the Plaintiff is the bona fide owner of all that piece or parcel of land and appurtenances thereon lying and situate at No. 27 Edgerly Road, Calabar.

B. That the Plaintiff is entitled to the possession of the whole property lying and situate on No. CA/488/80 and registered as No. 4 at page 4 in volume 176 in the land Registry office, Calabar.

The court in an unequivocal term ordered in its Judgment as follows:

“It is hereby ordered that judgment shall be and is hereby entered in favour of the Plaintiff against the Defendant as follows:
a. That the Plaintiff is the bona fide owner of all the piece or parcel of land and appurtenances thereon lying and situate on No. 27 Edgerly Road, Calabar.
b. That the Plaintiff is entitled to the possession of the whole property lying and situate on No. CA/488/80 and registered as No. 4 at page 4 in volume 176 in the Lands Registry Office Calabar. Exhibit J of the court order further states:

“it is hereby ordered, that the claim of the Plaintiff be and is hereby struck-out and the present Suit No. C/532/96 is accordingly struck-out. It is further ordered that possession of the property at No. 27 Edgerly Road, Calabar brought by the 1st Defendant be delivered forthwith to him”

The defendant in that case is the 4th Defendant/Respondent in this appeal. In suit No. C/532/96 the 1st Appellant was the plaintiff (Prince Val Adam suing as the Administrator of the estate of Edidem Bassey Eyo Ephraim III deceased). The Defendants are the 2nd Respondent, the 1st Respondent, ICON Merchant Bankers as 4th Respondent and 4th Defendants at the lower Court. Also Knight, Frank & Rutley Nigeria was material in suit No. C/532/96. The reliefs set out in the suit are as follows:

“A Declaration that the purported sale of the property at No. 27 Edgerly Road, Calabar by ICON Ltd (Merchant Brokers) to Ita Offiong Okoho as evidenced by the Deed of Assignment dated 1st February, 1995 and Deed of Lease dated the 25th November, 1992 is wrongful, illegal, null and void on grounds that Ita Offiong Okoho is a non existing person.”

(2) A Declaration that the purported sale or alienation of the property situate and lying at No. 27 Edgerly Road, Calabar was a fundamental breach of the terms of the Power of Attorney dated the 18th May, 1982 as same was not authorized by the donor therein.

(3) A Declaration that the Deed of Assignment dated 1st February, 1995 and the Deed of Release dated 25th November, 1992 transferring the aforesaid property to Ita Offiong Okoho is shrouded in fraud and therefore illegal, null and void.

(4) An order setting aside the purported sale and the release of the property at No. 27 Edgerly Road, Calabar by ICON Ltd (Merchant Bankers) to Ita Offiong Okoho.

(5) An order setting aside the purported Deed of Release dated 25th November, 1992 by Deed of Assignment dated 1st February, 1995 made by the 4th Defendant in favour of the 2nd Defendant with respect to No. 27 Edgerly Road, Calabar for being irregular and improper.

(6) A Declaration that Elder Ita Offiong Nsemo is not the same person as Ita Offlong Okoho.

(7) N6m damages for trespass.

(8) Perpetual injunction restraining the defendant particularly the 2nd defendant, their agents, servants, privies, assigns, or otherwise howsoever from interfering with the plaintiff’s enjoyment of the property at No. 27 Edgerly Road, Calabar.

A close scrutiny of the two suits – No. C/440/96 and C/532/96 shows that they have a common feature i.e. that the crux of their actions centre principally on the alienation of the property at No. 27 Edgerly Road, Calabar which was purchased by the 2nd Respondent in this appeal as the main cause of action. Learned appellants’ counsel had argued in his appellant brief of argument, page 7 that the parties and the issues are entirely different. According to counsel a cursory look at the claims on pages 51-53 of the record of appeal which show the reliefs claimed in suit No. C/532/96 – Prince Val Adam III v. Ita Offiong Okoho (Exhibit H) and when compared with the reliefs in suit No. FHC/CA/CS/102/2000 contained at pages 121-122 of the record of appeal, shows that Estoppel Per Rem Judicatam does not apply in this case.

With respect to learned counsel, I do not agree with him in any way. Learned counsel appeared to be looking at the form under which the suits were brought instead of the substance. Parties to a suit in the context in which it is required that parties must be the same for the doctrine of Estoppel Per Rem Judicatam to apply also includes ‘privies’. See Afolabi & 2 Ors v. Governor of Osun State & 3 Ors (2003) NWLR (Pt. 836) page 119 at 129-130, Fadiora v. Gbadebo (1978) 7 SC 219, Bamishebi v. Faleye (1989) 2 NWLR (Pt. 54) page 51.

In suit No. C/532/96, the action was brought like suit No. FHC/CA/CS/102/2000 by parties as administrators of Edidem Bassey Eyo Ephraim III. The main complain in both suits is against Ita Offiong Okoho to whom the disputed property (which is common to both cases) was sold and assigned. In view of all the above, I hold that the subject matter and issues raised in those previous suits pertain to the same subject matter in contention in suit No. FHC/CA/CS/102/2000.

In the circumstance of this appeal, I shall therefore hold that suits No. C/440/96, C/532/96, having been pronounced a final judgment by the High Court of Cross River State (a court of competent jurisdiction), it is therefore deemed correct and binding since it has not yet been set aside by an appellate court. So they can not be relitigated in suit No. FHC/CA/CS/102/2000. Accordingly, the defence of Estoppel Per Rem Judicatam hereby applies. And I hold therefore that the Learned trial Judge was right in law in holding that suit No. C/532/96 – Prince Val Adam III v. Ita Offiong Okoho & 3 Ors and suit No. C/440/96 – Ita Offiong Okoho v. ICON Merchant Bank Ltd constituted Estoppel Per Rem Judicatam to the Appellants’ case herein, before mentioned. The Respondents have satisfied all the requirements for a successful plea of the defence of Estoppel Per Rem Judicatam. And so, I resolve issue No. 1 in their favour.

Having established a successful plea of Estoppel Per Rem Judicatam, a court of law is divested of the requisite jurisdiction to hear the matter under contest. The converse is also true, that is, where the defence fails, the court will be imbued with the jurisdiction to adjudicate over the matter in question. See Ajiboye v. Ishola (2006) 13 NWLR (Pt. 998) page 628, Adigun v. Governor, Osun State (1995) 3 SCNJ 1, (1995) 3 NWLR (Pt. 385) PAGE 513.

The consequence of the above is that suit No. FHC/C/CS/102/2000 dated 2nd September, 2000 and filed on the 6th October, 2000 is an abuse of court process.

In the instant case at hand, one may ask: “Which of the processes/suits is an abuse of court process?” For this court to determine same, the court will consider the contents and or reliefs claimed in the first two suits C/440/96 and C/532/96 and the present suit CA/CS/102/2000 (the subject matter in this appeal) to determine whether they are aimed at achieving the same purpose. Looking at suits No. C/440/96 and C/532/96 which were earlier on in time, determined and especially C/440/96 determined in favour of the 2nd Respondent in this appeal and FHC/CA/CS/102/2000 (the subject matter of this appeal) one could easily see that they all have the same objective to achieve and a common res (No. 27 Edgerly Road, Calabar) in focus and I so hold. This court in the exercise of its discretion has an inherent jurisdiction can prevent the abuse of court processes by frivolous or vexatious proceedings of this nature either in this court or any other court which is brought before it. See Agwasin v. Ojiche (2004) 26 WRN 1. Having so held that the Appellant’s suit No. FCH/CA/CS/102/2000 which came later in time after judgment had been delivered on the same subject matter that is relitigating on the same cause of action, this court will in consequence i.e. strike-out in said suit as being incompetent i.e. suit No. FHC/CA/CS/102/2000. The said suit is hereby struck-out.

One other important issue canvassed by the Appellant in his brief of argument is issue No. 2.

“Whether the Learned trial Judge was justified in Law in refusing to consider and pronounce upon some cardinal, fundamental issues raised and canvassed by the Plaintiff’s counsel of the court below but merely treated those issues as academic questions and arguments”

Some of these issues according to Appellants’ counsel include:

i. Whether the 1st Defendant acted with the confines of the powers donated him vide power of attorney dated the 18th day of May, 1982 by setting the foundation or the stage for the sale and/or alienation of No. 27 Edgerly Road, Calabar.

ii. Whether from the facts and circumstances of this case, the 2nd and 3rd Defendants could qualify as bona fide purchaser without notice of any encumbrance or limitation on the property at No. 27 Edgerly Road, Calabar.

iii. Whether the 4th Defendant acted in good faith and was justified in law in the sale of the property at No. 27 Edgerly Road, Calabar.

The issue now is whether the lower court can afford not to pronounce on them or to pronounce on them as stated in the case of Katto v. CBN (1991) 9 NWLR page 126 per Okpata, JSC. This issue in contention appears to be settled recently in the lead judgment of I. F. Ogbonagu, JSC in the case of Osunbade & 4 Ors v. Oyewunmi & 2 Ors (2007) 4 S.C. page 98 at 112 where the Supreme Court held;

“I agree with the Learned Counsel for the 1st to 5th Appellants that sometimes, it is advisable for the Court below to express an opinion on the substantive issue even when it holds that is lacks jurisdiction. See Katto v. CBN (1991) 11-12 SC 176, (1991) 9 NWLR (Pt. 214) page 126 at 149-150, (1991) 12 SCNJ 1 per Akpata, JSC i.e. it is always done in the alternative. See also the case of NPA v. Panalpina World Transport Nig. Ltd (1974) 1 NWLR 83 at 85…. As rightly held by Tabai, J.C.A. (as he then was) the determination of that issue, should have been the end of that appeal without the Court below going into other issues which I agree amounted with respect an academic exercise. As it stands I uphold the minority judgment of Tabai, J.C.A. (as he then was) I allow the appeal, set aside the majority judgment dismissing the suit instead of striking it out …”

With the above authority, it is my candid opinion that the learned trial Judge was justified in Law in refusing to consider and pronounce upon some cardinal, fundamental, germane and decision issues raised, formulated and canvassed by the Plaintiff’s counsel but merely treated the same issues as academic questions and arguments. In consequence therefore, I resolve issue No. 2 in favour of the Respondents and against the Appellants.

On the whole therefore, I find as a fact and hereby hold that the appeal has no merit as all the issues have been resolved against the Appellant. The Appeal therefore fails and it is accordingly dismissed. I make no order as to cost.

ONYEKACHI A. OTISI, J.C.A.: I had the opportunity of reading, in draft, the Judgment just delivered by my learned Brother, Paul Obi Elechi, JCA, in this appeal. The issues raised in this appeal have been comprehensively addressed. I am in complete agreement with his reasoning and conclusion in dismissing this appeal.
I abide by the orders made in the lead Judgment.

JOSEPH JUDE JELLA, J.C.A.: I have had the opportunity of reading in draft the reasons for judgment read by my learned brother PAUL OBI ELECHI, JCA. I entirely agree with the reasons and conclusion. His Lordship has exhaustively dealt with all the issues that call for determination in this appeal. I have nothing more to add.

Appearances

A. O. Arulugun – Appellants For Appellant

AND

Ekpedeme Iyoho – for 1st – 3rd Respondents

N. E. Nkanu – for 4th – 5th Respondents For Respondent