Tende Samuel -VS- West Africa Container Terminal Nigeria Limited

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN — JUDGE

DATE: 22^nd MAY, 2018 SUIT NO: NICN/YEN/200/2016

BETWEEN:

TENDE SAMUEL ——————– CLAIMANT/RESPONDENT

AND

WEST AFRICAN CONTAINER TERMINAL

NIGERIA LIMITED DEFENDANT/APPLICANT

REPRESENTATION:

O. Ndubuisi for the Defendant/Applicant

No representation for the Claimant/Respondent

RULING/JUDGMENT

By a Complaint and Statement of Facts dated 18^th October, 2016 and filed on the 1^st November, 2016, the Claimant initiated this suit against the Defendant by way of Summary Judgment Procedure claiming the following reliefs:

An Order of this Honourable court directing the Defendant to immediately compute and pay to the Claimant his terminal/severance benefit as provided by the terms and condition of the Claimant’s contract of employment under the Defendant’s Staff Hand Book.

And for such further other order or orders as this Honourable court may deem fit to make in the circumstances.

The suit is supported by an affidavit of 20 paragraphs deposed to by Tende Samuel (the Claimant in this suit) together with a Written Address, and some annexed documents marked as Exhibits SJ-A, SJ-B, and SJ-C.

Upon service of the originating processes on the Defendant, the Defendant filed Statement of Defence together with a List of Witnesses, Written Deposition on Oath, Counter-Affidavit in Opposition to the Claimant’s Summary Judgment Application, Written Address in Reply to the Claimant’s Application for Summary Judgment and some annexed documents marked as Exhibits ‘WACT 1’, ‘WACT 2’ and ‘WACT 3’. These defence processes though dated 18^th January, 2018 and filed on 19^th January, 2018, were deemed properly filed and served by order of court on 7^th March, 2018.

It is pertinent to point out at this juncture that, by a Notice of Preliminary Objection dated 18^th January, 2018 and filed on 19^th January, 2018, the Defendant/Applicant challenged the jurisdiction of this court to hear and determine this suit on the following grounds:

The matter is res judicata.

There is no life issue(s) which calls for the Honourable Court’s determination.

This Honourable Court is functus officio as regards this suit.

This suit constitutes an abuse of court process.

In support of the Notice Preliminary Objection is an Affidavit of 7 paragraphs deposed to by one Aniedi Linus Isong, a Litigation Secretary in the Law Firm of Messrs. Udo Udoma & Bello Osagie, the Solicitors to the Defendant/Applicant. Annexed to the Application is one document marked exhibit ‘WACT 1’. The Defendant/Applicant equally supported the Notice of Preliminary Objection with a Written Address wherein they canvassed arguments in support of the application. The Defendant/Applicant distilled this sole issue for the determination of this Court, to wit:

Whether this suit constitutes a re-litigation of the same subject and therefore caught up by the principle of res judicata which robs this Honourable court of the jurisdiction to entertain the suit.

It is crucial to state at this juncture that, from the proof of service in the case file, the Defence processes including the Notice of Preliminary Objection were served on the Claimant’s counsel on 19^th January, 2018 at about 3:57pm.

The processes were received by one Bakpo Joy who signed as the Secretary in the Law Firm of the Claimant’s counsel. Despite the service of the processes, the learned Claimant’s counsel did not file any court process in opposition to the Defendant/Applicant’s Notice of Preliminary Objection.

In fact, at the hearing of this matter on the 22^nd of January, 2018, the learned counsel who appeared for the Claimant, V. N. Nwike acknowledged service of the Defendant’s processes including the Notice of Preliminary Objection on the 19^th of January, 2018, and pleaded for more time to enable them study the processes and respond accordingly. The case was consequently adjourned to 14^th February, 2018 for hearing.

On the 14^th of February, 2018 when the case came up for hearing the learned Claimant’s counsel was not in court and the court further adjourned the matter to 7^th March, 2018 for hearing.

On the 7^th of March, 2018, the Claimant was again not in court and his Counsel was nowhere to be found. The learned Claimant’s counsel again stayed away from the court without proffering any reason at all. Despite the evidence in the case file that the Claimant’s counsel was duly served with Hearing Notice for the day’s proceedings, the court graciously further adjourned the matter to 19^th April, 2018 for hearing.

When the matter came up on the 19^th of April, 2018 for hearing, neither Claimant nor the Claimant’s counsel was in court and no reason whatsoever was given for their absence. The court therefore having been satisfied that Hearing Notice was duly served on the Claimant’s counsel, proceeded to hear the Defendant/Applicant’s Notice of Preliminary Objection, more so that the learned counsel for the Defendant/Applicant was ready and prepared to argue same.

I now move to the analysis of the sole Issue submitted for determination by the learned counsel for the Defendant/Applicant which is whether the suit is a re-litigation of the same subject matter that has been decided by this court, and therefore caught up by the principle of res judicata which robs the court of the jurisdiction to entertain the suit.

While arguing this lone Issue, learned counsel posited that, a court of law can only exercise jurisdiction where the following pre-conditions are satisfied:

It is properly constituted as regards numbers and qualification of members of the bench and no member is disqualified for one reason or another;
The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction;

iii. Where the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.

See Madukolum V. Nkemdilim (1962) 25 CNLR 341 and Magaji V. Matari (2008) 8 NWLR (Pt. 670) 722 – 735, paras. D – F, 736, paras. D – E.

That jurisdiction being the life wire of any adjudicatory proceeding is so fundamental that without the requisite jurisdiction to try a case, the proceedings no matter how well conducted will amount to a nullity. See Gbagbarigha V. Toruemi (2013) 6 NWLR (Pt. 1350) 289 at 311 para. D; Ajayi V. Adebiyi (2012) 11 NWLR (Pt. 1310), 137 at 181 paras. B – E and Western Steel Works Ltd V. Iron and Steel Workers Union (1986) 3 NWLR (Pt. 30) 617.

It was further submitted by the Defendant/Applicant that the instant suit as presently constituted is an abuse of court process because the subject matter or cause of action is res judicata having been fully and finally determined by the Owerri Judicial Division of this court coram O. Y. Anuwe J. in Suit No. NICN/OW/65/2014: Samuel Tende V. West Africa Container Terminal Nigeria Limited.

That a successful plea of res judicata constitutes a bar to any fresh action as between the parties or their privies, thereby divesting the court with jurisdiction to entertain and determine a suit that had been fully and finally determined by a court of competent jurisdiction. See the case of Eze V. Nwaubani (2003) 7 NWLR (Pt. 818) 50 at 66 Paras. E – F, where the appellate court held as follows:

“A successful plea of judicata constitutes a bar to any fresh action as between the parties or their privies. The rule of res judicata is derived from the latin maxim, “nemo debet bis vexeri pro eadem causa.” It is the cause that matters, and a plaintiff cannot by formulating a fresh claim re-litigate the same cause. Res judicata is as a plea a bar, and as evidence it is conclusive. Therefore, once the plea of res judicata has been established, the jurisdiction of the court would be ousted.”

See also Dauda V. A.G. Lagos State (2011) 13 NWLR (Pt. 1265) 427 at 447 Paras. C – G; Olanibi V. Ohara (2006) 10 NWLR (Pt. 988) 297; Abe V. Adeniyi (2007) 4 NWLR (Pt. 1023) 191 at 218, and Obla V. Otagoyi (2007) 5 NWLR (Pt. 1027) 304 at 318 para. H.

It was further submitted that, in order to successfully establish a plea of res judicata as a bar to a subsequent suit, the party raising the plea must establish or prove the existence of the conditions as enunciated by the Supreme Court in the case of Abiola & Sons Bottling Co. Ltd V. 7Up Bottling Co. Ltd (2012) 15 NWLR (Pt. 1322) 184 at 196 – 197 Paras. C – A as follows:

It must be a judicial decision and it must have been delivered;
The court that heard the matter must have had jurisdiction over the parties and the subject matter;

iii. The decision must have been final and on the merits;

The decision must have determined the same question as that raised in the subsequent case;
The parties in the subsequent case must have been either parties to the earlier case or their privies.

The learned counsel for the Defendant/Applicant therefore argued that, since the issues and parties in the previous suit (Exhibit WACT 1) are the same as the issues and the parties in the instant suit, and the Owerri Judicial Division of this court having delivered judgment in the previous suit, there is no life issue left for this court to determine. That the Honourable Court is functus officio and therefore lacks the jurisdiction to entertain and determine the subject matter of this suit as same constitutes an abuse of court process.

The learned Defendant/Applicant’s counsel therefore urged the court to resolve the lone issue in favour of the Defendant/Applicant and to hold that, the suit is caught by the operation of res judicata, decline jurisdiction and dismiss the suit with substantial cost against the Claimant/Respondent.

COURT’S DECISION

Before I delve into the consideration of the issues in this application, may I reiterate the fact that despite the service of this application on the Claimant’s counsel, and opportunities afforded to the Claimant and the counsel by the court to appear and defend the application, they neither filed any process in opposition to the application nor made any effort to defend the Notice of Preliminary Objection filed before the court.

After a careful consideration of the processes filed in respect of this application, and the arguments and submissions of counsel for the Defendant/Applicant, I am of the humble view that the sole issue distilled for determination by the Defendant/Applicant is comprehensive enough to address the issues in contention in this application. The court therefore adopts the said Defendant/Applicant’s sole issue which is:

The contention of the Defendant/Applicant in this application is that, this suit as presently constituted is a re-litigation of the issues and subject matter which have been decided to finality by this Honourable Court per Hon. Justice O. Y. Anuwe in Suit No. NICN/OW/65/2014, between Samuel Tende V. West Africa Container Terminal Nigeria Limited, thereby constituting res judicata the consequence of which robs this court of the jurisdiction to hear and determine same.

In determining this Issue, it is pertinent to first and foremost consider what estoppel per rem judicatam is, as well as the elements of the plea in order to determine whether from the facts and the circumstances of this case, the said plea of res judicata is applicable to the instant suit.

One of the cardinal principles of common law and every adjudicatory proceeding is that public interest requires an end to litigation. The latin maxim is ‘interest reipublicae ut sit finis litium.’ It is therefore on this premise that the plea of estoppel per rem judicatam becomes an important plea in litigations whereby any cause of action that has been litigated upon and decided to finality by a court of competent jurisdiction cannot be the subject of subsequent litigation between the same parties and subject matter. The plea essentially forestalls protracted litigation in courts of law.

The apex court per Rhodes-Vivour, J.S.C. put the legal position succinctly as follows in the case of Chief Imam Busari Idowu Dauda & Anor. V. The Hon. Attorney-General of Lagos State & 5 Ors. (2011) 13 N. W. L. R. (Part 1265) 427 at 447 paras. D – G, “Where a judgment, i.e. a final judicial decision has been pronounced on the merits by a court with the requisite jurisdiction over the parties and the subject matter, any party in such suit as against any other party is estopped in a subsequent suit from disputing such decision on the merits. Once it is a final decision on the same question and between the same parties it is binding until upset on appeal. Res judicata gives effect to the policy of the Law that parties to a judicial decision should not afterwards be allowed to relitigate the same question even if the decision is wrong. This is premised on the fact that a court has jurisdiction to decide wrongly as well as correctly, and if it makes a mistake its decision is binding unless corrected on appeal.”

The same position was enunciated by the Supreme Court in the case of Mojeed Suara Yusuf V. Madam Idiatu Adegoke & 1 Anor. (2007) 30 NSCQR (Part 1) 269 at 298 – 299 paragraphs H – C, where P. O. Aderemi, J.S.C. held as follows on the meaning of res judicata:

“Let me quickly make a pronouncement on the terms “RES JUDICATA”, it has now become well entrenched in our civil jurisprudence that once a dispute or matter has been finally and judicially pronounced upon or determined by a court of competent jurisdiction, neither the parties thereto nor their privies can subsequently be allowed to relitigate such matter in court. A judicial decision properly handed down is conclusive until reversed by a superior court and its veracity is not open to a challenge nor can it be contradicted. The term derives its force from the good public policy which says that there must be an end to litigation. The maxim is INTEREST REIPUBLICAE UT SIT FINIS LITIUM.”

See also Nigeria Civil Service Union V. Association of Senior Civil Servants of Nigeria (2012) 26 N.L.L.R. (Part 73) 94 at 107 paras. B – D. and P. B. Olatunde & Co. (Nig.) Ltd. & 1 Anor. V. National Bank of Nigeria Ltd. (1995) 3 N.W.L.R. (Part 385) 550 at 562 para. B.

May I at this point reiterate the position of the law which has for a long period of time been settled that for a plea of res judicata to succeed, it must be shown and established that the parties, the subject matter and the issues in the previous case must be the same with those in the instant case in which the plea is raised. The previous case must not only be conclusive but must have also made an order or granted a relief which is certain and capable of being enforced.

See the case of Ahmadu Makun & 6 Ors. V. Federal University of Technology, Minna & 2 Ors. (2011) 18 N. W. L. R. (Part 1278) 190 at 232 – 233 paras. H – D, where the apex court per Galadima, J.S.C. (as he then was) held as follows on the pre-conditions for establishing estoppel per rem judicatam:

“In this regard, the law is firmly established that for the plea of estoppel per rem judicatam to succeed, the party relying on it must provide that:

the parties or their privies are the same in both previous and present proceedings;

the claim or the issue in dispute in both proceedings is the same;
the res or subject matter of the litigation in the two cases is the same;

the decision relied upon to support the plea of estoppel per rem judicatam must be valid, subsisting; and

the court that gave the previous decision relied upon to sustain the plea must be a court of competent jurisdiction.

Unless the above pre-conditions are established, the plea of estoppel per rem judicatam cannot be sustained. It is entirely a question of fact whether the parties and their privies, and the subject matter of the claim are the same in both the previous and present suits. The plea operates not only against the parties but also against the jurisdiction of the court itself and robs the court of its jurisdiction to entertain the same cause of action on the same issues previously determined by a court of competent jurisdiction between the same parties.”

See also John Bankole & 3 Ors. V. Mojidi Pelu & 3 Ors. (1991) 8 N.W.L.R. (Part 211) 523 at 543 paras. A – B, the apex court put it succinctly thus:

“Did Exhibit J create an estoppel against the appellants in this case? It is trite law that to constitute estoppel against the appellants the parties in Exhibit J – Alimosho Customary Court Suit No. 47/69- and in the present action (Lagos High Court Suit No. IK/21/67) must be the same, the cause of action or issue in both actions must be the same and must have been litigated to finality vide Iyowuawi V. Iyowuawi (1987) 4 N.W.L.R. (Pt. 63) 61. “parties” in this context also include the “privies” vide Fadiora V. Gbadebo (supra); Bamishebi V. Faleye (1987) 2 N.W.L.R. (Pt. 54) 51; Udo V. Obot (1989) 1 N.W.L.R. (Pt. 95) 59 at 61.”

These pre-conditions required for a successful plea of res judicata were reiterated by the Supreme Court in the case of Mr. Akinfela Frank Cole V. Mr. Adim Jibunoh & 2 Ors. (2016) 4 N.W.L.R. (Part 1503) 499 at 539 paras. A – D, where the Supreme Court per Sanusi J.S.C. held as follows:

“Having analysed the similarity of the two suits, I am of the firm view, that this is a clear example of a case in which doctrine of res judicata applies. For purpose of clarity, for the defence of res judicata to be successfully raised, the following conditions must co-exist or be met, namely:

(1) That the parties in the previous action and the present one must be the same.

(2) That the subject matter of litigation in the previous action must be the same as the one in the present or new action.

(3) The claim in the previous action must be the same as the one in the present action.

(4) The judgment in the previous case must be given by a court of competent jurisdiction; and

(5) The decision must be final or it must have finally disposed of the rights of the parties.See Ihenacho Nwaneri V. Oriuwa & Ors (1959) 4 FSC 132 or (1959) SCNLR 316; William Ude & Ors V. Josiah Agu & Ors. (1961) All NLR 65, (1961) 1 SCNLR 98; Etiti Alh. Latifu Ajuwon & Ors. V. Madam Alimotu Adeoti (1990) 2 NWLR (Pt. 132) 271, (1990) 3 SC (III) 76.”

See also the following cases:

Professor Folarin Shyllon V. Mrs. Judith Asein (1994) 6 N.W.L.R. (Part 353) 670 at 698 paragraphs B – D.
Ex Captain Charles Ekeagwu V. The Nigerian Army & Anor. (2006) 11 N.W.L.R. (Part 991) 382 at 394 – 395 paras. H – C.
Ezewuihe Ikoku & 3 Ors. V. Reuben Ekeukwu & 3 Ors. (1995) 7 N.W.L.R. (Part 410) 637 at 652 paras. C – F.
Registered Trustees, National Association of Community Health Practitioners of Nigeria V. The Medical and Health Workers & 3 Ors. (2016) 64 N.L.L.R. (Part 228) 626 at 646 paras. F – A.

Guided by the position of the law as enunciated in the authorities cited above, it is pertinent at this juncture to embark on the exercise of analyzing the previous case in Suit. No. NICN/OW/65/2014 (exhibit WACT 1) and juxtapose same with the instant suit in order to ascertain whether or not those pre-conditions/conditions have co-existed for a successful plea of res judicata.

On the pre-condition or condition that the parties in the previous suit and the instant or present suit must be the same, I have carefully looked at Suit No. NICN/OW/65/2014 (Exhibit WACT 1) and it is clear that the previous suit was between Tende Samuel V. West Africa Container Terminal Nigeria Limited. It is therefore not in doubt that the parties in the previous suit (exhibit WACT 1) annexed to the Notice of Preliminary Objection and the parties in the instant suit are the same. I so find and hold.

On the second and third pre-conditions or conditions of the subject matter of litigation and claims in the previous action being the same as in the instant suit, it is important to examine the claims and reliefs in the two suits to determine whether or not they are the same.

The reliefs claimed in the previous suit (exhibit WACT 1) are reproduced hereunder:

A declaration that the termination of the Claimant’s contract of employment is unlawful and illegal.
The payment of the Claimant’s severance benefits to the tune of N10, 000.000.00 (Ten Million Naira) calculated fairly as a Senior Staff of the Defendant.

iii. The payment of the Claimant’s one month salary in lieu of notice as stipulated in the Claimant’s letter of termination.

The payment of the sum of N215, 000.00 (Two Hundred and Fifteen Thousand Naira) being the Claimant’s year-end bonus for 2013 approved by the Defendant’s management.

The sum of N5,000,000.00 (Five Million Naira) as general damages for the loss, inconvenience and expenditure for breach of contract of employment.

The reliefs being claimed by the Claimant in the instant suit as captured in the Originating Process filed on 1^st November, 2016 are as follows:

“An Order of this Honourable Court directing the defendant to immediately compute and pay to the Claimant his terminal/severance benefit as provided by the terms and condition of the claimant’s contract of employment under the defendant’s Staff Hand Book.

And for such further other order or orders as this Honourable court may deem fit to make in the circumstances.”

It is clear from the reliefs reproduced above that the main grievances of the Claimant in the two suits have to do with the termination of the Claimant’s contract of employment with the Defendant and the payment of the Claimant’s severance benefits. It is therefore my humble view that the subject matter of litigation as well as the claims in the previous suit are the same as the ones in the instant suit. These issues were duly analysed by my learned brother the Hon. Justice O. Y. Anuwe in EXHIBIT ‘WACT 1’, wherein it was held that since the defendant neither gave one month notice of termination to the Claimant nor paid one month salary in lieu of notice to the Claimant, the termination of the Claimant’s employment was wrongful. In the final analysis, the court held as follows as reflected on page 22 of the Judgment (exhibit WACT 1):

“In the final result, it is my judgment that the termination of the claimant’s employment was wrongful and he is consequently entitled to one month salary as damages for the wrongful termination of his employment. He is also entitled to the sum of N215, 000.00 being the 2013 year-end bonus. All other reliefs sought by the claimant are dismissed.

The defendant’s counter claim for the sum of N1,091,166.77 succeeds. The defendant’s claim for pre-judgment interest is refused but the claim for post judgment interest at 10% per annum is granted. The amount of the claimant’s one month salary in lieu of notice and the sum of N215,000 will be used by the defendant as part payment of the claimant’s debt. The balance must be paid by the claimant to the defendant within 3 months from the date of this judgment after which it will attract 10% interest per annum until fully paid.”

It is therefore obvious that, the claimant’s main relief in the instant suit which is for the payment of his terminal/severance benefit is the same as relief 2 in the previous suit (exhibit WACT 1) which was duly pronounced upon by the court and declined or refused. I am therefore of the humble view that the issues and subject matter in both the previous suit and the instant suit are the same. I so find and hold.

On the competency of the jurisdiction of the court that decided the previous suit (exhibit WACT 1), there is no doubt that the court was properly constituted within its jurisdiction as provided for in section 254(C) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The judgment which was given by this court is valid and subsisting having been given by a court of competent jurisdiction. In any case, there was never an objection to the jurisdiction of this court by either of the parties to exhibit ‘WACT 1’.

On the pre-condition or condition that the previous judgment must have disposed of the rights of the parties finally and conclusively, it is pertinent to state the position of the law regarding the determination of whether a judgment is final or interlocutory. The deciding factor is whether the rights of the parties have been finally and conclusively decided and disposed of by the judgment. In the case of Nnah George Onyeabuchi V. Independent National Electoral Commission (INEC) & 4 Ors. (2002) LPELR-2726(SC), the Supreme Court per E. O. Ayoola, J.S.C. (as he then was) held as follows on what determines the finality of a decision: “A judicial decision is deemed to be final, when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution, and is absolute, complete, and certain, and when it is not lawfully subject to subsequent decision, review or modification by the tribunal which pronounced it.” See also the case of Chief Olisa Metuh v. Federal Republic of Nigeria & 1 Or. (2017) 4 N.W.L.R. (Part 1554) 108.

It is clear that, the judgment in the previous suit (exhibit WACT 1) has finally and conclusively decided and disposed of the rights of the parties in the suit. In other words, the issues have been definitively settled by this court in the previous suit (Exhibit WACT 1). While the court granted some of the reliefs claimed by the Claimant and refused some of the claims, the Defendant’s Counter-Claim before the court was upheld by the court after which consequential pronouncements were made by the court. It is therefore my humble view that the judgment in the previous suit (exhibit WACT 1) is a final decision of this Honourable Court. I so find and hold.

In the final result, I am of the considered view that based on the reasons advanced above and on the strength of the legal authorities cited and relied upon, the instant suit instituted by the Claimant herein is an abuse of court process meant to vex the Defendant/Applicant twice on the same issues already decided by this Honourable Court. The instant suit is not a post-judgment proceeding and I cannot sit in judgment over the decision of my learned brother O. Y. Anuwe, J. The right of the Claimant lies on appeal as this court is functus officio in the circumstance of this matter. The instant suit is clearly caught up by the doctrine of estoppel per rem judicatam, being a relitigation of the issues already determined in Suit No. NICN/OW/65/2014. That being the case, this court has no jurisdiction to hear and determine this suit as it is clearly an abuse of court process.

The sole Issue distilled for determination is therefore resolved in favour of the Defendant/Applicant.

For the avoidance of doubt, it is the decision of this court that the Defendant/Applicant’s Notice of Preliminary Objection challenging the jurisdiction of this court to entertain this suit succeeds and same is hereby upheld.

Consequently, the appropriate order to make in the circumstance is to dismiss the suit, and same is hereby dismissed.

I make no order as to costs.

Ruling is entered accordingly.

Hon. Justice P. I. Hamman

Judge