SKYBLIND (NIG) LTD v. NEW LIFE COOPERATIVE SOCIETY LTD & ORS
(2021)LCN/5151(SC)
In The Supreme Court
On Tuesday, December 07, 2021
SC.114/2014
Before Our Lordships:
Musa Dattijo Muhammad Justice of the Supreme Court of Nigeria
Chima Centus Nweze Justice of the Supreme Court of Nigeria
Helen Moronkeji Ogunwumiju Justice of the Supreme Court of Nigeria
Adamu Jauro Justice of the Supreme Court of Nigeria
Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria
Between
SKYBLIND NIGERIA LIMITED APPELANT(S)
And
1. NEW LIFE COOPERATIVE SOCIETY LIMITED 2. BELLO AHMED 3. ROTIMI FAMOLU 4. DR. DAPO OLADIMEJI RESPONDENT(S)
RATIO:
PRINCIPLE OF ESTOPPEL PER REM JUDICATA
The principle of estoppel per rem judicata, the appeal agitates, postulates that if the merit of an action between the parties have been tried by a Court of competent jurisdiction and a final decision given thereon, no person shall, in a subsequent litigation, be allowed to raise the very same questions that have earlier been decided. The doctrine insists on putting an end to litigation by estopping any party to the dispute or their privies to relitigate the matter which has been finally and judicially determined by a Court of competent jurisdiction. See YOYE V. OLUBODE (1974) 10 SC 209 and ALFRED ASAGBA & ANOR V. ONOWHA OGAJE & ANOR (1972) LPELR- 571 (SC). In the latter case this Court per Sowemimo, JSC (of blessed memory), cited with approval the decision of Fatayi-Williams J (as he then was) in FABUNMI FAMILY V. DELEGAN AND OTHERS (1965) N.M.L.R. 369 where at page 373 of the report his lordship set out the preconditions a Court applies in determining the success or otherwise of the plea of res judicata and the consequence of a successful plea of the defence thus:-
“The issue before the Grades B and A Customary Courts, to my mind, was one of law. It was whether the plea of estoppel based on the judgments in Exhibits C and E could be sustained or not, the factual evidence of ownership as given by both parties notwithstanding.
It is therefore immaterial whether the plaintiffs/applicants called their boundary man to give evidence or whether the defendants/respondents did not call such evidence.
In my view, the Grade B Customary Court was quite right in finding for the defendants/respondents on the issue of estoppel and consequently dismissing the plaintiffs/appellants’ claim. So also is the learned President of the Grade A Customary Court”. MUSA DAITIJO MUHAMMAD, J.S.C
MUSA DAITIJO MUHAMMAD, J.S.C. (Delivering the Leading Judgment): The appellant herein, as plaintiff, commenced suit No. KDH/KAD/117/2010 against the respondents, the defendants, at the High Court of Kaduna State for:-
“(i) A declaration that the act of the defendants constitutes trespass and continuous trespass against the plaintiff.
(ii) An order of injunction restraining the defendants, their agents, servants, employers and any other person(s) from obstructing or further obstructing, blocking, entering without consent, and interfering with the plaintiff’s use and occupation of the property consisting of the ground floor and all its appurtenances situate and lying at plot L5, Ahmadu Bello Way Kaduna which the plaintiff holds and occupies as a lawful tenant of the defendants.
(iii) N6 million only as general damages and
(iv) Cost of instituting the action”.
The respondents not only contested appellant’s claim, they counter-claimed thus:-
“a. A Declaration that the 1st Defendant is entitled to immediate, exclusive and outright possessions of the property situate, lying and being at plot No. L5 Ahmadu Bello Way Kaduna covered by certificate of Occupancy No. KD5155, dated 26th June 1998 and Registered as No. 16 at page 16 in volume 83 (Certificate of Occupancy) of the Kaduna State Land Registry Kaduna having lawfully purchase same from ALHAJI GIDADO IDRIS (the former owner) on 18/09/1009.
b. A Declaration that the Plaintiff is a tenant at sufferance and a Trespasser in the premises.
c. A CONSEQUENTIAL ORDER of this Honourable Court ejecting the Plaintiff forthwith from the 1st Defendant’s property or premises known situate, lying and being at plot No. L5 Ahmadu Bello Way Kaduna.
d. AND for such further order(s) as this Honourable Court may deem fit to make in the circumstances of this case.”
Pleadings were ordered, filed and exchanged. The respondents particularly averred and led evidence that appellant is seeking to relitigate the very claim heard and determined by the Federal High Court in suit No. FHC/KD/CS/33/2010 between the appellant’s Managing Director, as plaintiff, against the police and the 3rd to 5th respondents as defendants.
In its judgment at the end of trial, see page 147 of the record of appeal, the trial Court inter-alia held:
“Appellant’s claims have been a subject of previously concluded litigation and cannot be relitigated … the claim is incompetent while the defendants’ counter-claim is undefended and granted…” (Underlining supplied for emphasis).
Dissatisfied, the appellant appealed to the Court of Appeal, the lower Court, on a notice containing four grounds filed on 14th June 2012.
In dismissing the appeal and affirming the trial Court’s decision, the lower Court concluded its judgment at page 188 of the record, thus:-
“This Court finds and holds that the lower Court was correct in its finding that the judgment of the Federal High Court in suit No. FHC/KD/CS/33/2010 constituted res judicata in the present case.” (Underlining mine for emphasis).
The instant appeal, vide appellant’s amended notice deemed filed on 20/6/18, is against the foregoing concurrent findings of the two Courts.
Parties have filed, exchanged, adopted and relied upon their respective briefs of argument for and against the appeal. The two issues formulated at paragraph 3.1 of the appellant’s amended brief of argument as arising for the determination of the appeal read as follows:-
“(i) WHETHER the claim and parties to suit No. PHC/KD/CS/33/2010 are the same as this suit to constitute res judicata against the present suit as held by the lower Court. (Distilled from grounds 1 and 2 of the amended notice of appeal). (Underlining mine for emphasis).
(ii) WHETHER Appellant validly appealed the trial Court’s findings on trespass before the lower Court so as to be entitled to judgment reversing same in this Court. (Distilled from grounds 3, 4 and 5 of the amended notice of appeal).”
The two similar issues distilled at paragraph 2.00 of the respondents’ brief for the determination of the appeal are:-
“1. Whether the Appellant is entitled to the reliefs sought at the lower Court same having been determined and dismissed by the Federal High Court in Suit No. FHC/KD/CS/33/2010. (Underlining supplied for emphasis).
ii. Whether the Appellant appealed against the trial Court findings on trespass against the Respondents before the lower Court.”
Under its first issue, the appellant argues that for the plea of estoppel per rem judicatam to succeed, the party relying on it must prove:-
(1) The parties or their privies are the same in both the previous and present proceeding;
(2) The claim or the issue in dispute in both proceedings is the same.
(3) The res or subject-matter of the litigation in the two cases is the same.
(4) The decision relied upon to support the plea of estoppel per rem judicatam must be valid, subsisting and final; and
(5) The Court that gave the previous decision relied upon to sustain the plea must be a Court of competent jurisdiction.
The plea succeeds, it is submitted, only where these five preconditions are jointly met. Appellant inter-alia places reliance on EZEOKONKWO V. OKEKE (2002) FWLR (PT. 109) P. 1652 at 1674, OKE V. ATOLOYE (1985) 1 NWLR (PT. 15) P. 241 and OKPOSIN V. ASSIAM (2005) ALL FWLR (PT. 282) P. 1863 SC.
In the case at hand, learned appellant’s counsel submits, the two Courts below are wrong, given respondents’ failure to establish the first two preconditions, to sustain respondents’ plea of estoppel per rem judicatam. The appellant was neither a party to the previous suit nor, it is further contended, are the reliefs in the present suit same as in the former. Citing DIKE-OGU V. AMADI (2008) ALL FWLR (PT 438) 276, COKER V. SANYAOLU (1976) 9-10 SC, MEZU V. CO-OP & COMM BANK NIG PLC (2012) ALL FWLR (PT 655) 262 and ALADE V. ALIC NIG LTD (2011) ALL FWLR (PT 563) 1849, learned counsel submits that the appellant, a corporate personality, which has a separate and distinct existence from either its employees or alter ego, is never a privy of any of the two. The issue, learned counsel concludes, be resolved against the respondents.
On their 1st similar issue, learned respondents’ counsel agrees that a plea of res judicata succeeds only if the five preconditions the Supreme Court stipulates are conjunctively met. An appellate Court is permitted to peruse the pleadings, proceedings and judgment of the lower Court in deciding whether or not the plea succeeds. Learned counsel cites in aid OMIYALE V. MACAULAY (2009) 7 NWLR 597, DANIEL TAYAR TRANSPORT ENTERPRIESE NIG CO LTD V. BUSARI (2011) 8 NWLR (PT 1249) 387, AYUYA V. YONRIN (2011) NWLR (PT 1254) 135 and AGBASI V. OBI (1998) 2 NWLR (PT 531).
Learned counsel further submits that in the case at hand, parties in suit No. FHC/KD/CS/33/2010 are not only the same as those in the suit that brought about this appeal, same witnesses have testified in the two suits. The parties in both suits are privies to each other being of same and direct interest in the subject matter of the dispute. It is clear from the evidence on record, learned counsel further contends, that the appellant is a direct beneficiary of the reliefs in both suits and had had the opportunity of attending Court to protect its interest in the earlier suit.
The reliefs in the two suits, learned respondents’ counsel submits, even though differently couched, are substantially the same. It is immaterial, it is contended, as to the capacity in which a particular party feature in any of the two suits, whether as a plaintiff or defendant. It is the interest the party sets out to protect, vis-a-vis that of the rival party, that determines the sameness of the claims in the two suits. Once it is clear from the facts on record that same questions are substantially in issue in the two suits and between the same parties and/or their privies, estoppels subsists to rob the Court from proceeding on the subsequent suit same claims having been previously determined by a Court of competent jurisdiction. Further relying on FALEYE V. OTAPO (1995) 3 NWLR (PT 381) 1, MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341 and ABUBAKAR V. BEBEJI OIL AND ALLIED PRODUCTS LTD NWLR (PT 1066) 319, learned respondents’ counsel urges that both Courts below are right to have sustained respondents’ plea of res- judicatun in the instant suit. He prays that the issue be resolved against the appellant and the appeal be dismissed.
Now, the issue at hand is whether the lower Court’s affirmation of the trial Court’s decision declining jurisdiction to proceed on appellant’s suit because of a valid subsisting decision in an earlier action, suit No. FHC/KD/CS/33/2010, on the same subject matter between the same parties and/or their privies, is right. While learned appellant’s counsel contends that concurrent as the findings of the two Courts are, their decisions are perverse. Learned respondents’ counsel submits to the contrary. Certainly both cannot be right.
My lords, the principle of estoppel per rem judicata, the appeal agitates, postulates that if the merit of an action between the parties have been tried by a Court of competent jurisdiction and a final decision given thereon, no person shall, in a subsequent litigation, be allowed to raise the very same questions that have earlier been decided. The doctrine insists on putting an end to litigation by estopping any party to the dispute or their privies to relitigate the matter which has been finally and judicially determined by a Court of competent jurisdiction. See YOYE V. OLUBODE (1974) 10 SC 209 and ALFRED ASAGBA & ANOR V. ONOWHA OGAJE & ANOR (1972) LPELR- 571 (SC). In the latter case this Court per Sowemimo, JSC (of blessed memory), cited with approval the decision of Fatayi-Williams J (as he then was) in FABUNMI FAMILY V. DELEGAN AND OTHERS (1965) N.M.L.R. 369 where at page 373 of the report his lordship set out the preconditions a Court applies in determining the success or otherwise of the plea of res judicata and the consequence of a successful plea of the defence thus:-
“The issue before the Grades B and A Customary Courts, to my mind, was one of law. It was whether the plea of estoppel based on the judgments in Exhibits C and E could be sustained or not, the factual evidence of ownership as given by both parties notwithstanding.
It is therefore immaterial whether the plaintiffs/applicants called their boundary man to give evidence or whether the defendants/respondents did not call such evidence.
In my view, the Grade B Customary Court was quite right in finding for the defendants/respondents on the issue of estoppel and consequently dismissing the plaintiffs/appellants’ claim. So also is the learned President of the Grade A Customary Court”.
In ABUBAKAR V. BEBEJI OIL AND ALLIED PRODUCTS LTD (2007) 18 NWLR (PT 1066) 319 at 373-374 a case and passage alluded to by the lower Court, Tobi JSC proffered as follows:-
“In considering the application or applicability of the principle or doctrine, the Court should remind itself of the tricks the parties, at times, play to beat its application. This is the only way to meet such parties’ full length rather than half-length … There are times when parties play. with words to present a camouflage that the issues are different when in reality they are not. The trial Judge, in the use of the eyes of an eagle, will be able to remove the chaff from the grain and decide whether the principle or doctrine of res judicata is applicable or inapplicable.” (Underlining mine for emphasis).
See also DZUNGWE VS GBISHE (1985) 2 NWLR (PT 8) 528 and DAGACI OF DERE VS DAGACI OF EBWA (2006) 7 NWLR (PT 979) 382.
Learned appellant’s counsel insists that the parties in suit No. FHC/KD/CS/33/2010 and the instant suit No. KDH/KAD/177/2010, wherein the respondents raised the plea of res judicata, are not the same. He suggests also that the subject matter in the two suits are neither the same nor substantially so. Learned respondents’ counsel is on a firm terrain in contending that the appellant, on the authorities, cannot be taken seriously.
Who are the parties in the two suits and what are the reliefs they approached the Courts for?
Answers to these questions would determine whether or not the Court whereat the plea is raised has the jurisdiction to proceed to determine the action the parties place before it. The plea of res judicata is invariably a challenge to the Court’s jurisdiction the determination of which is done by comparing the claims in the two suits. If the plea succeeds, the subsequent action, suit No. KDH/KD/CS/33/2010 wherein the plea is raised, becomes incompetent as the claim it seeks to enforce has earlier been litigated and determined by a Court of competent jurisdiction and between the same parties or their privies. See AGNES DEBORAH EJIOFODOMI VS. H. C. OKONKWO (1982) LPELR-1070 (SC), AG FEDERATION V. GUARDIAN NEWSPAPERS LTD & ORS. (1999) LPELR-3162 (SC) and COLE V. JIBUNOH & ORS. (2016) LPELR-40662 (SC).
On the two overriding questions the trial Judge, see pages 143-146 of the record of appeal, inter-alia enthused thus:-
“l have seen case No. FHC/KD/CS/33/2010 and there is no doubt, it was between the same parties and the subject matter is the same. The reliefs are as follows.”
The Court particularly referred to reliefs 3, 4, 5 and 7 of the statement of claim in the earlier suit reproduced hereinunder for ease of reference:-
“3. A declaration that the forceful sealing and locking of the applicant’s place of business and blocking of the entrance to the said place of business with a truck by the 5th to 7th respondents with the active connivance of the 1st to 4th respondents, their agents and servants, constituted a violation of the applicant’s rights to privacy as enshrined in Section 37 of the Constitution of the Federal Republic of Nigeria 1999.
4. An order of perpetual injunction restraining the respondents, their agents, servants proxies and/or any person acting for or on their behalf from further interfering, arresting, detaining, threatening to arrest and/or detaining the applicant in connection with their use and occupation of the property at L5 Ahmadu Bello way or in furtherance of the complaints made by the 5th to 8th respondents for recovery of the said premises.
5. A further order restraining the respondents from further sealing locking, blocking or invading the business premises of the applicant and/or violating the privacy of the applicant without a valid Court order or in accordance with the provisions of the law.
7. Exemplary damages in the total sum of N2,000,000.00 (Two Million Naira) only against the 5th to 8th respondents for instigating 1st to 4th respondents and participating in the violation of the applicant’s fundamental rights as set out in paragraphs A-C herein.”
The Court then proceeded as follows:-
“From the above, it would appear the issue of sealing, locking sand invading the plaintiff’s premises was entertained and I agree with the submissions of learned counsel to the defendants that the issues in this case were presented to the Federal High Court by way of fundamental rights proceedings for breach of privacy dignity of person as well as injunction. The Federal High Court absolved the present defendants and only found against the police. I think that this issue cannot be relitigated here again.”
The lower Court in affirming the foregoing findings of the trial Court at page 185 of the record held firstly as follows:-
“It was not in dispute that the fifth to the eight defendants in suit No. FHC/KD/CS/33/2010 are the same Respondents in the present suit. It was also not in dispute that prayers (iii), (iv), (v) and (vii) in the suit were directed at the fifth to the eight defendants therein, the respondents herein, it is trite that the principle that for the defence of res judicata to succeed there must be sameness of parties does not mean that all the parties in the previous suit must be made parties in the later suit. It is sufficient, where there are several parties in the previous suit, that those of the parties who are necessary parties to the issues in the previous suit are the same as in the later suit … It is the view of this Court that the parties in the two suits are the same parties within the definition of ‘parties’ for the purpose of res judicata.” (Underlining mine for emphasis).
The Court further dwelt on parties’ pleadings in the two suits and added at page 186 of the record thus:-
“The bulk of these facts were the exact same facts relied upon by the Appellant to prosecute his claims before the lower Court in this matter and the issues stated above were the exact same issues presented for determination before the lower Court. It is trite that once it is made clear that the self same question was substantially in issue in the two suits, the precise form in which either suit is brought or the fact that the claimant in the one case was the defendant in the other is immaterial estoppel subsists between the parties …
Additionally, looking at the facts relied on in the two suits, it cannot be contested that the same evidence was required to prove the claims in both suits. The Courts have stated that one of the criteria of identity of two suits in considering a plea of res judicata is the enquiry whether the same evidence would support both.” (Underlining supplied for emphasis).
The Court’s concluding finding at page 188 of the record of appeal reads:-
“This Court finds and holds that the lower Court was correct in its finding that the judgment of the Federal High Court in Suit No. FHC/KD/CS/33/2010 constituted res judicata in the present case …”
Appellant’s first issue for determination of this appeal is against the foregoing concurrent findings of both Courts below which learned counsel insists should be set-aside as same are perverse. Are they? I think not.
Learned appellant’s counsel needs to be reminded that finding of fact or decision is said to be perverse when it runs counter to pleadings and evidence on record and/or where the Court wrongly applies legal principle to correctly ascertained facts, a lapse which amounts to miscarriage of justice. See UBN PLC V. CHIMAEZE (2014) LPELR – 22699 (SC) and ABEGUNDE V. ONDO STATE HOUSE OF ASSEMBLY & ORS (2015) LPELR-24588 (SC).
The concurrent findings the appellant seeks to overturned in the instant case, which, as demonstrated, draw from the pleadings, evidence on record and on account of correct application of legal principle, must persist. This explains why appellant’s first issue is hereby resolved against him.
I must stress in conclusion, the needlessness of considering appellant’s 2nd issue for determination. Appellant’s incompetent suit does not give rise to any issue worthy of our consideration. The 2nd issue is hereby struck out.
On the whole, the appeal lacks merit. Same is accordingly dismissed. Respondents are entitled to cost put at N300,000.00k against the appellant.
CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of reading before now, the draft of the leading judgment which my Lord, Musa Dattijo Muhammad, JSC, just delivered. I agree with His Lordship that, being unmeritorious, this appeal should be dismissed.
My Lords, I am worried: worried about the standard and quality of advocacy of most counsel who practise before this Court. The advocates in this category, almost always, forget the most elementary principles which the Nigerian Law, most diligently, taught them.
In the instant case, the appellant’s fourth Ground of Appeal was couched thus “[t]hat the decision is against the weight of evidence,” [page 150 of the record].
Pray, does this Court have to remind counsel for the appellant that the above Ground is an Omnibus Ground? I do not think so for there is a long line of decided cases to the effect that an Omnibus Ground cannot be used to raise questions in an appeal, Bhojsons Plc v Daniel-Kalio [2006] 5 NWLR (pt 973) 330; Akinlagun v Oshoboja [2006] 12 NWLR (pt 993) 60.
The net effect is the appellant’s refusal or failure to appeal against the concurrent findings of the lower Courts on the claims in trespass is that these findings are binding on it, Amale v Sokoto Local Government [2012] 5 NWLR (pt 1292) 181; SCC (Nig) Ltd v Anya [2012] 9 NWLR (pt 1305) 213; Uwazurike v Nwachukwu [2013] 3 NWLR (pt 1342) 503; Otuedon v Olughor [1997] 9 NWLR (pt 521) 355; Opara v Schlumberger [2006] 7 SCNJ 373, 378.
Against the background of the appellant’s failure to appeal against the said concurrent findings of the lower Courts, the futility of issue two becomes very evident. As it is well-known, this Court does not have the habit of interfering with concurrent findings of lower Courts except on certain grounds, Yusuf v Toluhi [2008] All FWLR (pt 437) 34, 39.
It is for these, and the fuller, reasons advanced in the leading judgment that I, too, shall enter an order dismissing this appeal.
Appeal dismissed.
HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have had the privilege to read in draft, the erudite judgment just delivered by my learned brother HON. JUSTICE MUSA DATTIJO MUHAMMAD, I agree that this appeal be dismissed.
This is an appeal against the judgment of the Court of Appeal, Kaduna Division in appeal No. CA/K/230/2012 Coram: Dalhatu Adamu, Abdu Aboki and Habeeb A. O Abiru, JJCA delivered on the 31st October, 2013 in which the Court below dismissed the appeal against the judgment of the Kaduna State High Court, Kaduna Judicial Division presided over by Honourable Justice H. Balogun, delivered against the appellant and in favour of the Respondent on the 25th day of April, 2012 in suit KDH/KAD/117/2010.
The Appellant’s claim before the High Court was for trespass and continuous trespass and for an order of injunction restraining the Respondents, the agents, servants, employers and any other person(s) from obstructing or further obstructing, blocking, entering without consent and interfering with the appellant’s use and occupation of the property consisting of the ground floor and all its appurtenances situate and lying at plot L5 Ahmadu Bello Way, Kaduna, which the appellant holds and occupies as a lawful tenant of the respondent. The appellant also claimed N6,000,000.00k (Six Million Naira), the respondents responded to the appellant’s claim by filling a Statement of Defence and counter-claim.
The case of the appellant on the pleadings was that it carried on business of the sale of electronics at Plot L5, Ahmadu Bello Way, Kaduna and that sometime in September 2009, the respondents served it with a quit notice and that on the 27th of October, 2009, the second to the fourth respondents were at its premises to commence renovation works on the building and to disrupt its business. It was its case that it reported the disturbance of its business by the respondents to the Police who advised the parties to find a solution by it was inconclusive. It was its case that on the early morning of 11/1/2010 the respondents sealed it premises with chains and padlock and they blocked its entrance with a crane tipper lorry and removed its sign post and canopy there from and that they thereafter caused three of its employees to be arrested by the Police and detained at the Police Station. It was its case that when its Managing Director turned up at the Police Station to secure the release of the employees, he was detained and that at about 5pm, the Managing Director, in the company of its employees, were taken to its premises and forced to open the office after the respondents had removed the lorry and the chains and padlock.
It was the case of the Appellant that the respondents forced their way into its office and rained insults on its employees, threatened and compelled its Managing Director to write an undertaking to vacate the premises by the 31/3/2010 and that notwithstanding the undertaking, the respondents continued to obstruct its business by carrying on reckless renovation works and other illegal activities thereby adversely affecting its business. The appellant gave particulars of the acts of trespass of the respondents and stated that it suffered loss of daily income by reason of the activities of the respondents.
The case of the respondents is that the 1st respondent was the owner of the premises known as Plot L5, Ahmadu Bello Way, Kaduna which it purchased from one Alhaji Gidado Idris and that the appellant ceased paying rents on the property at the time it was put up for sale. It is their case that the 1st respondent caused a notice to quit dated the 28th of September, 2009 as well as a notice of owner’s intention to recover possession dated 2nd of November, 2009 to be issued and served on the appellant. They denied commencing renovation works or disrupting the business of the appellant in the premises on the 27th of October or on any other day and it was their case that the appellant voluntarily opted to vacate the premises on the 31st of March, 2010 without any threat or coercion. They denied the other aspects of the appellant’s case and put the appellant to the strictest proof thereof and they averred that appellant had sued the 1st respondent and the Police before the Federal High Court and judgment had been entered by that Court. The respondents counter-claimed for a declaration that the first respondent was entitled to the immediate, exclusive and outright possession of the premises at Plot L5, Ahmadu Bello Way, Kaduna.
The matter proceeded to trial at the conclusion of which the lower Court dismissed the claims of the appellant and granted the counter-claim of the respondents. The appellant was dissatisfied with the judgment and it caused its Counsel to file a notice of appeal dated the 13th of June, 2012 against it at the Court of Appeal.
At the Court of Appeal, the issue of res judicata was contested, considered and determined in favour of the present respondents. The issue of whether the appellant proved its case of trespass against the respondents was contested and the issue was resolved in favour of the respondents. The counter-claim of the 1st respondent for immediate possession was upheld. This is a further appeal by the appellant against the two concurrent findings of facts by the two lower Courts.
On the issue of res judicata, I believe that facts are the fountain head of law. Chief Augustine Achilike, Emmanuel Achilike and Nnamdi Okorie, all of whom were parties in suit No FHC/KD/CS/33/2010 and also witnesses in suit No. KDH/KAD/117/2010 are privies in law to the appellant and had direct interest in the subject matter of the dispute and had the opportunity to attend and protect their interest in the proceedings in suit No. FHC/KD/CS/33/2010. See Omotesho vs Oloriegbe (1988) 4 NWLR (pt.87) 225, Osunrinde vs Ajamogun (1992) 6 NWLR (pt.246) 156 as parties rather than as witnesses.
The claims or the issues in dispute in both proceedings are the same. Thus, a cursory look at the claims in suit No. FHC/KD/CS/33/2010 and suit No. KDH/KAD/117/2010 clearly shows that they are the same claims only differently couched. I considered pages 2, 3, 54, and 55 of the Records of proceedings and relief a, b, 3, 4 and 5 thereof.
The law is that once it is made clear that the same question was substantially an issue in the two suits, the precise form in which suit is brought or the fact that the claimant in the one case was the Defendant in the other is immaterial, estoppel subsists between the parties. See Faleye vs Otapo (1995) 3 NWLR (Pt. 381) pg.1.
One of the issues donated for determination to the Court below by the appellant was the finding by the trial Court that the respondent was not a trespasser on the premises. Thus the argument of the respondent’s Counsel that the issue of trespass was not a live one at the Court below is completely misconceived.
Be that as it may, I find no merit in the arguments of the appellant’s counsel seeking to set aside the findings of the two lower Courts in that regard. Those findings were not perverse and did not lead to a miscarriage of justice.
For the fuller, erudite reasons in the lead judgment, I find no iota of merit in this appeal. It is hereby dismissed. I abide by all consequential orders in the lead judgment.
ADAMU JAURO, J.S.C.: I had the privilege of reading in draft, the lead judgment just delivered by my learned brother, Musa Dattijo Muhammad, JSC. I am in agreement with the reasoning and conclusion contained therein, to the effect that the appeal is unmeritorious and ought to be dismissed.
I adopt the judgment as mine and join my learned brother in dismissing the appeal. I abide by all consequential orders made in the lead judgment.
Appeal dismissed.
EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the judgment of my learned brother, Lord Justice, MUSA DATTIJO MUHAMMAD, JSC. I agree with the reasoning, conclusions, decisions, including the orders therein.
Appearances:
TAJUDEEN OLASENI OLADOJA, with him, FAUSAT O. ABDULSALAM, BARNABAS JOHN and ZAINAB Y. DOGARA For Appellant(s)
MURITALA O. ABDULRAHEED, with him, TEJUMOLA ABIOLA OLOKE, B. S. KPENKPEN and C. E. UMEOZOR For Respondent(s)
