TONY-ANTHONY HOLDINGS LIMITED & ANOR v. COMMERCIAL BANK FOR AFRICA (2013)

TONY-ANTHONY HOLDINGS LIMITED & ANOR v. COMMERCIAL BANK FOR AFRICA

(2013)LCN/5879(CA)

In The Court of Appeal of Nigeria

On Monday, the 28th day of January, 2013

CA/L/631/09

RATIO

RES JUDICIATA: WHERE DOES THE PRINCIPLE APPLY
Ogbuagu JSC also held as follows in the same case – Ntuks v. NPA (supra) –
“The principle of res judicata applies where a final judicial decision has been pronounced by a judicial tribunal/court, having competent jurisdiction over the cause or matter in litigation and over the parties thereto, disposes once for all, of the matters decided so that they cannot afterwards, be raised for re-litigation between the same parties or their privies. — This is why it is firmly established that estoppels per rem judicatum or estoppels of records, is said to arise, where an issue of facts, has been judicially determined in a final manner, between the parties or their privies by a Court or Tribunal of competent jurisdiction in the matter and same issue, comes directly in question in a subsequent proceeding between the parties or their privies.”

RES JUDICATA: WHAT DOES IT ENTAIL
So, where a Court of competent jurisdiction has settled the matters in dispute between the parties, none of them are allowed to re-litigate same again by bringing a fresh action. The matter is said to be res judicata. Thus, a successful plea of res judicata ousts the jurisdiction of the court in which it is raised.
The doctrine of res judicata rests on the principle that there must be an end to litigation. A party must not be allowed to re-litigate a matter that has been settled in a final decision of a court of competent jurisdiction – see The Honda Place Ltd. v. Globe Motors Nig. Ltd. (supra) Nigergate Ltd. v. Niger State Govt. (2007) LPELR-8847(CA), wherein Omoleye, JCA, explained that –
“The doctrine has been structured on two pronged rules of public policy expressed in two Latin maxims – (a ) “interest rei publica it set finis litium” – that it is for the common good that there should be an end to litigation or that it concerns the state that there should be an end of law suits or that it is for the general welfare that a period or an end be put to litigation, and (b) “nemo debet bis vexari proeadem causa” – that no one ought to be proceeded against twice if it be proved to the court that it be for one or the same cause or that no one should be sued or vexed twice on the same ground, on the same set of facts, if there has been a final decision of a competent Court”.

ESTOPPEL CREATED BY A SUCCESSFUL PLEA OF RES JUDICATA

RES JUDICATA: ISSUE ESTOPPEL AND CAUSE OF ACTION ESTOPPEL: DIFFERENCE
Be that as it may, issue estoppel and cause of action estoppel are both species of res judicata estoppel – see Ikeni v. Efamo (supra), and it is well settled that for the principle to apply, the following pre-conditions must be present –
(a) The parties/privies must be the same in both the previous and present proceedings;
(b) The claim or the issues in dispute in both proceedings must be substantially the same;
(c) The “res” or subject matter of the litigation in the two cases must be the same;
(d) The decision relied upon to support the plea of res judicata must be valid, subsisting and final; and…
(e) The court that gave the previous decision relied upon to sustain the plea must be a court of competent jurisdiction – see Nigergate Ltd. V. Niger state Govt. (supra).
In this case, it is abundantly clear from the material before the lower court that the Respondents claims in Suit No:LD/274/95 filed at the Lagos State High Court and the Application for Recovery of Debt filed at the said Tribunal are the same; the subject matter is the same and it arose out of the same transaction. The parties are the same, the Lagos State High Court that decided it is a Court of competent jurisdiction and its Judgment was a final judgment. The action is, therefore, res judicata – See Ikeni v. Efamo (supra), Achibong v. Ita (2004) 2 NWLR (pt.858) 590 SC; Afolabi v. Govt. of Osun State (2003) 13 NWLR (Pt.836) 119, Onajoko v Odulami (2000) 8 NWLR (Pt.667) 71.

RES JUDICATA: WHETHER A CONSENT JUDGMENT CAN MAINTAIN A PLEA OF RES JUDICATA

The first Judgment may have been a “Consent Judgment”, but the law accepts that it can sustain a plea of res judicata – see The Honda Place Ltd. v. Globe Motors Ltd. (supra), Oseni v Dawodu (1994) 4 NWLR (Pt.339) 390, and Talabi v. Adeseye (1972) All NLR 692, where G.B.A. Coker, JSC, held that –
“A consent judgment or order is as effective in respect of the matters, which are thus settled as any judgment after the matters are fully fought out to the end and Lord Herschel, L. C., In re South American and Mexican Company ex parte Bank of England [1895] 1 Ch. 37 at page 50, states –
“The truth is, a judgment by consent is intended to put a stop to litigation between the parties just as much as is a judgment, which results from the decision of the Court after the matter has been fought out to the end. And I think it would be very mischievous if one were NOT to give a fair and reasonable interpretation to such judgments, and were to allow questions that were really involved in the action to be fought over again in a subsequent action”.(Emphasis mine)

ABUSE OF COURT PROCESS: DEFINITION

The answer to this question is as stated in Offor v. Leaders & Co. Ltd. (supra)-
“The definition of abuse of process of the court is quite trite and age hallowed. It simply means a proceedings lacking in ‘bona fides’, frivolous, vexatious or oppressive. It is also said to mean misuse of legal process. An example of such is re-litigation of issues previously settled, compromised or decided in a matter – – The issue of abuse of court process is also an issue of jurisdiction (and) it is settled that once a court is satisfied that any proceeding before it is an abuse of court process, it is empowered and it behoves it to dismiss such a proceeding”. [Per Omoleye, JCA]
See also Amaefule v. The State (1988) 1 NSCC (Vol.19) 669. Where Oputa, JSC, observed -“Abuse of process is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. Abuse of process can also mean abuse of legal procedure or improper use of process.”

On res judicata, they referred us to the decision of the Supreme Court in The Honda Place Ltd. v. Globe Motors Nig. Ltd. (2005) 14 NWLR (Pt. 945) 273 and Ntuks v. Nigerian Ports Authority (2007) 19 NWLR (Pt.1051) 392, and submitted that the Respondent’s claims in suit No: LD/274/95 land this suit are the same, the subject matter is the same, it arose from the same transaction, the parties are the same, the Lagos High Court that decided the suit is a Court of competent jurisdiction, and its judgment in the suit was a final judgment, therefore, this is res judicata. They further submitted that it is also clear that the institution and continued prosecution of this case is in direct violation of the maxim nemo debet bis vexari pro eadem causa, as they have been troubled twice or have suffered double jeopardy for the same cause; that it is unjust, unfair and contrary to equity, natural justice and good conscience for the Respondent to sue them twice for the same cause of action, and compel them to use their scarce resources to defend the same suit twice in two different Courts; and that not only did the Respondent obtain final judgment in suit No: LD/2749/95, it also reaped the fruits of the said judgment and or executed the said final judgment prior to commencing the suit at the Failed Banks Tribunal.
They further argued that in so far as the Respondent had executed the final judgment of the Lagos High Court both by pre-judgment execution and by post judgment execution, by virtue of which, they have been denied access to and the use of their numerous properties, chattels and assets since July 1995, it is unfair, unjust, contrary to equity, natural justice and good conscience for the Respondent to institute this suit and make the same claims against them; that once it is established that a case is res judicata the Court’s jurisdiction to entertain the suit is automatically ousted, citing Ntuks v. NPA (supra); and that this case has not been commenced in accordance with due process of law.

The Respondent did not address the issue of res iudicata in its brief, rather it premised its arguments on its contention that the substantive matter before the lower court was an Application to enforce terms of a concluded Judgment of the Failed Bank Tribunal delivered on 24/2/1998, and that the Application filed by the Appellants at the lower Court “is, therefore, strange”. It also argued that the lower Court was right to hold that the application was misconceived since there is a final judgment before the court to be enforced; that the lower Court was saying the suit had been decided by the Tribunal and the Appellants jumped the gun in not acknowledging that there is an existing judgment; and that the grounds for bringing the application “is a spectacular attempt to do what the Supreme Court clearly said cannot be done; to wit; set aside or challenge the final judgment of a Failed Banks Tribunal”.

Obviously, the Respondent missed the point of the Application filed at the lower Court, which is to the effect that the Failed Banks Tribunal and later the Federal High Court had no jurisdiction to entertain the suit in the first place because the matter had already been decided by the Lagos State High Court in Suit No.LD/2794/95 before the Respondent went to the Failed Banks Tribunal. Thus, the Appellants’ contention is that ab initio the Failed Banks Tribunal had no jurisdiction to deliver the Judgment of 24/2/1998, which the Respondent contends is a final Judgment that cannot be set aside or challenged by them.
What the Respondent appears to forget or overlook is that jurisdiction is the lifeline of any action, so, any Court without jurisdiction automatically lacks the competence to try the case in the first place – see Utih v. Onoyivwe (1991) 1 NWLR (pt.166) 166 SC, where Bello, JSC (as he then was) stated as follows- –
“Jurisdiction is blood that gives life to the survival of an action in a Court of law and without jurisdiction, the action will be like an animal drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be abortive exercise”.
It is because jurisdiction is so vital to the life of a case that the law insists that the issue can be raised at anytime and anywhere, even at the appeal stage – see Ijebu-Ode L.G. v. Adedeji (1991) 1 NWLR (Pt. 166) 136 SC and Olutola v. Unilorin (2004) 18 NWLR (pt.905) 416 SC where Ejiwunmi, JSC, observed that-
“The issue of jurisdiction being a fundamental issue, it can be raised at any stage of the proceedings in the Court of first instance or in the appeal Courts. This issue can be raised by any of the parties or by the Court itself suo motu. When there are sufficient facts ex facie on the record establishing a want of competence or jurisdiction in the Court, it is the duty of the Judge or Justices to raise the issue suo motu if the parties fail to draw the Court’s attention to it”.

The Respondent did not canvass any arguments on this issue in its brief, however, it did admit in its Application for Recovery of Debt filed at the Failed Bank Tribunal after it obtained Judgment at the Lagos State High Court that –
“The action was fully prosecuted and Judgment given in favour of the Applicant on the 26th September, 1995, for the sum of N39,000,000.00 with consent”.
Nevertheless, the said Failed Bank Tribunal proceeded to order as follows –
“– The Respondents have no defence whatsoever to the claim filed against them by the Applicant. In the circumstances and in view of the fore-going, I hereby order as prayed and find the Respondents liable, jointly and severally to the claim filed against them by the Applicant Bank. Accordingly, I hereby enter final judgment against the Respondents, jointly and severally, in the sum of N40,462,826.90- –

Obviously, the Appellants have every reason to be horrified at the thought that the Respondent has two final Judgments in respect of the same claim arising from the same transaction but from two different Courts”, and that it can “pick and choose” which one to enforce, or come after them again in another court; that cannot be allowed to happen. Surely, the law does not operate that way, and it is a clear anathema to the concept of justice itself to allow it to happen. The Respondent had a final Judgment in its hands when it filed the action at the said Tribunal for the same claims that arose out of the same transactions between the same parties, and the Appellants are right that it employed the Tribunal as a forum to oppress them, which is an abuse of court process – see Saraki v. Kotoye (1992) – NWLR (Pt.264) 156, where Karibi-Whyte, JSC, said –
“–The abuse of the process may lie in both a proper and improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues”.
In this case, the Tribunal was not even seised of jurisdiction when it arrogated to itself the jurisdiction to deal with the action, and it was an abuse of court process for the Respondent to bring it before the Tribunal that had no jurisdiction in the first place – see Ishola-Noah V. High Commissioner (1980) 8 – 11 SC.

Issue 2 is also resolved in favour of the Appellants. Issue 3, questions whether the Respondent has locus standi to institute and prosecute this suit. Section 11(1) of the Failed Banks Decree of the 1994 as amended, provides –
“An application for the recovery of a debt owed to a failed bank shall be brought before the Tribunal by the Receiver or Liquidator of the failed bank and where there is no Receiver or Liquidator, by a person appointed by the CBN or NDIC”.
The Appellants submitted that the suit can only be commenced by a person appointed by CBN or NDIC, and the Respondent, having not brought itself within the provision of Section 11 (1) of the said Decree, has no locus standi to commence this suit; that the person appointed by NDIC is Chief Chuks Ikokwu, but it illegally and unlawfully usurped his position and commenced the suit, which means it lacked locus standi, and the lower Court also had no jurisdiction to entertain the suit, citing Att. Gen., Anambra State v. Att. Gen., Fed. (2007) 12 NWLR (Pt.1047) 4, Emezi v. Osuagwu (2005) 12 NWLR (Pt.939) 340 and Ekiti State v. Daramola (2005) 10 NWLR (Pt.827) 104. Furthermore, that even if the Respondent was appointed by NDIC, it will still lack locus standi to recover its debts at the Tribunal because Section 11 (1) of the Decree only becomes operative if a bank has failed, and where a bank is not a failed bank, NDIC cannot appoint any person pursuant to Section 11 (1) to recover its own debts, citing Vico Agro Allied Industries Ltd. V. Orient Bank (1998) 1 FBTLR 11, decided by the Special Appeal Tribunal that heard appeals from the Tribunals. They further submitted as follows at page 17 of their brief of argument –
“The Respondent cannot be legally and lawfully as a Liquidator or a Receiver in respect of its own affairs. Just as it is not possible for a dead man to organize his own funeral and bury himself, it is also not possible for a failed bank to be a Liquidator or Receiver in respect of its own affairs. Since the Respondent is a failed bank, a person other than the Respondent has to be appointed by NDIC under S.11 (1) of the Failed Banks Decree to lawfully and properly commence proceeding for recovery of debts at the Failed Banks Tribunal. It is therefore submitted that the appointment of the Respondent by NDIC to commence this suit at the Failed Banks Tribunal is illegal, null and void. Accordingly, the Respondent has no locus standi to commence this suit. I urge your Lordships to so hold”.

The Respondent did not address this issue, and having found that the Tribunal lacked jurisdiction to entertain the suit because it is res judicata and an abuse of court process, the issue is, essentially, academic, and I will simply adopt the reasoning of Agbaje, JSC, in Vico Agro Allied Ind. Ltd. v. Orient Bank (supra)-
“- – A Liquidator or a Receiver performs his functions in relation to the properties of another person other than himself. The corollary to this – is that a person cannot be appointed a Liquidator or a Receiver in respect of his own property. In other words, a company in liquidation can never be appointed a liquidator to wind up the affairs of that company. Nor can a company in liquidation be appointed a receiver to take possession of and protect the property of the company in winding up proceedings. – – It is the contemplation of the Decree that a person appointed under S.11(1) of the Decree by CBN or NDIC will be performing the duties of a Liquidator or a Receiver in relation to the recovery of a debt owed to a failed bank in the Failed Banks Tribunal. – – The Respondent has been appointed by the NDIC under S.11 (1) of the Decree to recover the debts owed to it by the Appellants in a Failed Banks Tribunal. It is a “person.” An artificial person, within the meaning of that word in Section 11 (1) of the Decree – – But it is being called in to perform the duties of a Liquidator or a Receiver in respect of its own affairs.” Palmers Company Law Volume 1 23rd Edition says as regards, duties and powers of a liquidator – –
In general terms the duties of the Liquidator are to take control of the assets of the Company; to make out list of creditors and contributors; to resolve disputes; to realize assets and to apply the proceeds in payments of the Company’s debts and liabilities in due course of administration”
As to the legal status of a Receiver appointed by court the same work says —
The Receiver appointed by the court is (1) an officer of the court (2) is neither agent of the debenture holders nor the company, (3) entirely supersedes the powers of the company and the authority of its directors in the conduct of its business which remains in abeyance during the appointment. (4) is a fiduciary.”
As to the legal status of a Receiver appointed out of a Court: The officer is not an officer of the court. (2) is agent of the appointor although this is commonly varied by agreement. (3) entirely supersedes the powers of the Company and the authorities of its directors. (4) is a fiduciary. – – The Respondent – – cannot legally or properly be appointed as a Liquiditor or a Receiver in respect of its own affairs. – -The Respondent cannot be appointed by the NDIC under Section 11(1) of the Decree to commence proceedings in a Failed Banks Tribunal to recover the debts owed to it – – If the Respondent is a failed bank, a person other than the Respondent has to be appointed by the NDIC – – If the Respondent is not a failed bank, then it has no business – – to go to a Failed Bank Tribunal to recover the debt owed to it – – it is a failed bank, the Respondent has no locus standi to commence proceeding in the lower Tribunal”.
Either way, whether it was appointed by NDIC or it was not appointed by NDIC, the Respondent had no locus standi to commence the action at the Tribunal.

Issue 3 is, therefore, resolved in favour of the Appellants. Issues 4 and 5, question whether the lower court was right to dismiss the said Application challenging the jurisdiction of the Court on the ground that it is misconceived, and whether it denied the Appellants their Constitutional right to fair hearing. Without sounding like a broken record, I will repeat what I said under issue 2. The “Consent Judgment” entered by the Lagos State High Court on 26/9/95, was a final Judgment of a Court of competent jurisdiction, and the decision of the Failed Banks Tribunal dated 24/2/98 over the same matter involving the same parties was a nullity. The Appellants were, therefore, on solid grounds when they filed the Application challenging the jurisdiction of the Lower Court, which still had Applications pending before it, including the one for committal.

I agree with them that it was wrong to dismiss their Application without considering the issue of jurisdiction, and ruling on same one way or the other. The Appellants raised weighty issues that robbed it of jurisdiction, but the Lower Court dismissed the application on the ground that it was misconceived, and adjourned the matter to another date for the hearing of an application, which is a clear indication that the Appellants were truly denied a fair hearing.
The Lower Court did not even attempt to look into the issues they raised and a matter that should have ended in 1995 has dragged on till today in 2013. This is an unfortunate turn of affairs, and one that must be deplored by us.
The end result is that the appeal succeeds, and it is, therefore, allowed. There will be no order as to costs.

SIDI DAUDA BAGE, J.C.A.: I had the privilege of reading in draft the Judgment of his Lordship, Hon. Justice A. A. Augie (JCA). I am in complete agreement with it. This appeal is meritorious and thus allowed by me.
I abide by the order made as to costs contained in the lead Judgment.

RITA NOSAKHARE PEMU, J.C.A.: I have before now been afforded a draft of the Judgment just delivered by my learned brother AMINA ADAMU AUGIE JCA, and I agree with her opinions and conclusions.
I adopt same, and allow the appeal.
I also subscribe to the consequential order made that there should be no order as t costs.

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

Between

1. TONY-ANTHONY HOLDINGS LIMITED
2. CHIEF TONY – MARIA OPIAH Appellant(s)

AND

COMMERCIAL BANK FOR AFRICA
(Appointed by Nigeria Deposit Insurance Corporation [NDIC]) Respondent(s)

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): This case has a chequered history; it started in 1995, and traversed through the Lagos State High Court, Ondo State High Court, Cross River State High Court, Failed Banks Tribunal, Lagos, and Federal High Court, Lagos, before it ended up in this Court with an appeal against the Federal High Court’s decision to dismiss the Appellants’ Application challenging its jurisdiction to entertain the suit. Jurisdiction is a threshold issue that strikes at the root of a case, and to find our way in this appeal, we have to trace the background facts the very beginning.
The 1st Appellant obtained credit facilities from the Respondent Bank, and when it “refused and/or neglected” to clear its indebtedness to the Bank, the Respondent as Plaintiff filed Suit No. LD/2749/95 at the Lagos High Court, wherein it claimed the sum of N37,917,653.08 being the outstanding debt owed as at “31st day of May, 1995″, and interest thereon from 1/6/95, etc.
Before the High Court, Lagos, delivered its Judgment, the Respondent filed Applications in the nature of mareva injunctions at the High Court, Akure and High Court, Ikom, for the purpose of preserving properties, chattels and assets of the Appellants, so that same could be used to satisfy any Judgment the Respondent would obtain in its favour in the Said suit No: LD/2749/95. The Lagos High Court entered a Consent Judgment on 26/9/1995, that reads –
UPON THE TERMS OF SETTLEMENT being filed at the High Court Registry, Lagos on the 25th day of September, 1995; AND AFTER HEARING Mr. E. A. Oyebanji Counsel for the Plaintiff/Applicant. Plaintiff Counsel informing the Court that Plaintiff and 1st Defendant had settled and filed terms of settlement.
JUDGMENT IS HEREBY ENTERED AS FOLLOWS:-
1. That the total outstanding indebtedness of the Defendants to the Plaintiff as at 31st day at July, 1995 is the sum of N39,000,000.00
2. That the Defendants shall pay an initial sum of N4,500.00 on or before the 30th day of September, 1995.
3. That the Defendants shall pay the sum of N4,500, and 00.00 on or before the 31st day of October, 1995.
4. That the Defendants shall pay the sum of N6,500,000.00 on or before the 31st of November, 1995
5. The installment payment of the outstanding sum of N2,500,000’00 every other month until the total liquidation of the whole sum.
6. That the asset of the Defendant being held by M/S Commerce Bank PLC shall be held on paripasu basis of 30% to C.B.A. and 70% to Commerce Bank PLC in accordance with the memorandum of understanding.
7. That the Defendant undertakes to sign mortgage based on 30: 70% ratio.
8. Upon payment of the 1st installment in the sum of N4,500,000.00 all the proportion of the Defendant attached shall not be disposed off and upon the payment of the 3rd installment totaling N16, 000,000.00 the proportions shall be released accordingly. Dated this 26th day of September, 1995.”
When the Appellants failed to pay the Judgment debt, the Nigeria Deposit Insurance Corporation [NDIC] appointed Chief Chuks Ikokwu, Esq., to recover the debt at the Failed Banks Tribunal, and the Application he filed states that –
“[The 1st Appellant] had in the course of normal Banker/Customer relationship taken benefit of various credit facilities from the [Respondent] between 1993 and 1995 in furtherance of its export trade transactions which facilities having been retired and unpaid, leaving the [Appellant] indebted to the [Respondent] to the tune of N40,462,826.90 as at 11/2/97. The [Respondent] also claims interest at the rate of 21% per annum on the principal sum from 11/2/97 till the entire debt is liquidated.
Paragraphs 4 to 12 of the FURTHER PARTICULARS OF INDEBTEDNESS states –
4. The [Respondent] and the [Appellants] started a Banker/Customer relationship sometime in 1992
5. In 1993, the [1st Appellant] started taking benefit of the granting of various credit facilities from the [Respondent], and by 1995, the [1st Appellant] had taken, and retired over N100,000,000.00 Million. The particulars of the facilities granted the [1st Appellant] by the [Respondent] include the following – – –
6. Further to the above facilities granted the [1st Appellant], it has at various times requested and granted the financing of its point shipments by the [Respondent].
7. The credit facilities were secured among others by a continuing guarantee of the (2nd Appellant] and letters of set off from the export proceeds could not settle the
8. The sets off from the export proceeds could not settle the entire indebtedness hence by 1995, the Appellants] were stilt indebted to the [Respondent] to the tune over N37,000’000.00.
9. Giving the [Appellants]’ continued indebtedness and the attendant effect on the fortunes of the [Respondent]’ the latter caused an action to be brought against the Respondents at the High Court of Lagos for the [Appellants]’ outstanding indebtedness of N37,917,653.08.
10. The action was fully prosecuted and judgment given in favour of the [Respondent] on the 26th of September, 1995, for the sum of N39,000,000.00 with consent
11. Since the consent judgment, [they] have refused to settle the indebtedness and as 11th of February, 1997, the [Respondent]’s statement of [1st Appellant]’s account showed the indebtedness standing at N40,462,826.90.
12. The [Appellants] have by themselves and through their Solicitors admitted the indebtedness – – – hence they have no defence whatsoever to this action”.

The Respondent later filed an Application dated 15/1/98 for the following –
AN ORDER OR LEAVE OF THE HONOURABLE TRIBUNAL to enter final judgment against the [1st Appellant] for the sum of N40,462,826,90 being the balance outstanding as at 11/2/97 on the [1st Appellant]’s credit facilities and overdrafts obtained from the [Respondent] in the course of normal Banker/Customer relationship to service its export trade transactions and interest at the rate of 21% per annum on the principal sum from 11/2/97 till the entire debt is liquidated

GROUND – DEFAULT OF DEFENCE”.
In its Ruling delivered on 24/2/98, the Failed Banks Tribunal held as follows –
Having not filed their Reply within 6 days of entering appearance as they were enjoined to do under schedule 1, paragraph 10 (1) of the Procedure for the Recovery of Debts at the Tribunal, Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No.18 of 1994 as amended, I agree – – – that the Respondents have no defence whatsoever to the claim filed against them by the Applicant. In the circumstances and in view of the foregoing, I hereby order as prayed and find the Respondents liable, jointly and severally to the claim filed against them by the Applicant Bank. Accordingly, I hereby enter final judgment against the Respondents, jointly and severally, in the sum of N40,462,826.90 – – at the interest rate of 21% per annum from 11/2/97 until the entire indebtedness is completely liquidated. It is further ordered that the Respondents shall pay the said sum of N40,462,826.90 at 21% per annum from 11/2/97 not later than 7 days from today. The Respondents shall pay N3,000.00 as costs in favour of the Applicant Bank”

Upon an Application dated 10/6/98 to commit the 1st Appellant to prison, the Failed Banks Tribunal ordered as follows in its Ruling dated 15/4/99 –
“In view of the prayer No. iv – – to confiscate the properties of the 2nd Judgment Debtor/Respondent and for his committal to prison, this case has moved from the realm of being in entirety civil matter to being a criminal matter and accordingly. I hereby order that bench warrant shall issue forthwith for the apprehension of the 2nd Judgment Debtor/Respondent, Chief Tony Mariah Opiah of Plot 67 GRA Phase 1 Diobu Port Harcourt Rivers State and he is to be brought to this Tribunal to show cause why the provision of Section 19 (4) of the Failed Banks – – Decree No.18 of 1994, as amended should not be invoked against him. A copy of this order shall be served forthwith on the Police at the Force CID, Failed Banks inquiry – – as well as the NDIC – – – for reason of the failure of the 1st Judgment Debtor/Respondent Company and 2nd Judgment Debtor/Respondent to comply with the order this Tribunal made on 24/2/98 for the sum of N40,462,826.90 at the interest rate of 21% per annum from 11/2/97 till the entire indebtedness was completely repaid, within 7 days from the date of this Judgment. It is further ordered that the 2nd Judgment Debtor/Respondent, Chief Tony Mariah Opiah upon his being arrested by the Police at Port Harcourt shall be produced before this Tribunal on 3/5/99 – – -”

With the return of democracy on 29/5/99, the Federal High Court became seised of the matter. The 2nd Appellant was arrested and remanded in prison custody by an order of the Federal High court. After several months in prison, he was granted bail by the Federal High Court. When they still failed to pay the Judgment debt, the Respondent filed an Application dated 8/5/2002 for –
1. An order directing the confiscation of the immovable properties of the 1st [Appellant]/Judgment Debtor as hereunder listed (3 properties listed)
2. An order of this Hon. Court directing that all the properties listed in paragraph 1 (a-c) above be sold by either private treaty or public auction and the proceeds be used in liquidating the [Appellants]’ indebtedness to the [Respondent].
3. An order directing the winding up of the [1st Appellant]/Judgment Debtor Company.
4. An order committing the [2nd Appellant]/Judgment Debtor to imprisonment for a term not exceeding three years without option of fine.

The Application had not been heard when the Appellants changed Counsel on 4/5/07, and the new Counsel filed the following Application dated 30/5/07 for –
“AN ORDER dismissing or striking out this suit because the Respondent lacks the Locus standi to commence this suit. IN THE ALTERNATIVE
AN ORDER dismissing or striking out this suit because this Honourable Court lacks the jurisdiction to entertain this suit”
AN ORDER dismissing or striking out this suit because the institution and continued prosecution of this suit amounts to an abuse of Court process.

GROUNDS FOR THIS APPLICATION
(i) By virtue of S.11(1) of the Failed Banks–Decree No.18 of 1994 as amended, the Respondent–cannot be appointed by NDIC to recover debts owed to it at the Failed Banks Tribunal.
(ii) The Respondent has no locus standi in law to commence this suit.
(iii) The claims of the Respondent in this suit had been previously litigated upon by the parties herein at the Lagos High Court in Suit No.LD/2749/95 – Commercial Bank for Africa V. (1) Tony Anthony Holdings Ltd. (2) Chief Tony Maria Opiah wherein the Lagos High Court delivered its final judgment in the suit on 26th September, 1995.
(iv) The judgment debt of N39,000,000.00 in suit No.LD/2749/95 at the Lagos High Court has since been fully settled by the [Appellants] prior to the commencement of this suit at the Failed Banks Tribunal on 23rd May, 1997.
(v) The claims, the parties, and the subject matter of Suit No. LD/2749/95 are the same as those in this suit.
(vi) It is an abuse of Court process for the Respondent after it commenced Suit No. LD/2749/95, obtained final judgment therein and fully reaped the fruits of the said judgment to commence and prosecute his suit against the [Appellants] thereby harassing vexing and oppressing the Applicants and subjecting them to double jeopardy.
(vii) This Hon. Court lacks the jurisdiction to entertain a suit in which the Respondent’s claims had been previously determined by a Court of competent jurisdiction in a final judgment and which judgment the Respondent had already reaped the fruits thereof.

The Application is supported by a 44-paragraph Affidavit deposed to by one Kenna Oku, Esq., who averred as follows in paragraph 42 of the said Affidavit –
That upon a review of this matter in Chambers and after conducting a search into this Honourable Court’s file, I am informed by Andy Igboekwe Esq of Counsel and I verily believe him as follows
a) That the Respondent lacks the locus standi to commence this suit.
b) That the appointment of the Respondent by NDIC to recover debts due to it – – is unlawful, illegal, null and void.
c) That this Hon. Court lacks the jurisdiction to entertain this suit.
d) That this suit has not been commenced in accordance with due process of law.
e) That there are several features in this suit which prevents this Hon. Court from exercising its jurisdiction.
f) That it is a condition precedent before this Hon. Court can entertain this suit that the claims in the suit will not have been previously litigated upon by the parties and final judgment delivered thereon.
g) That the institution and continued prosecution of this suit is an abuse of Court process.

The Deponent further averred as follows in paragraph 43 of the Affidavit
“That I am also informed by the 2nd Applicant and I verily believe him as follows:
(a) That this suit was commenced by the Respondent in utmost bad faith,
(b) That as a result of this suit, the Applicants have suffered double jeopardy being compelled to defend the same claims twice in different Courts.
(c) That the commencement and continued prosecution of this suit is oppressive and highly vexatious on the Applicants.
(d) That the commencement and continued prosecution of this suit has occasioned untold hardships on the Applicants particularly the 2nd Applicant who has had to be incarcerated in consequence thereof.
(e) That the Applicants have suffered huge losses and irreparable damages in consequence of this suit.
(f) That it is in the interest of justice that this suit be dismissed or struck out.
(g) That unless this Hon. Court dismisses or strikes out this suit the Applicants will continue to incur losses and damage.
(h) That the Respondent has a pending application dated 8th May, 2002 before this Hon. Court seeking inter-alia an order committing the 2nd Applicant to imprisonment for a term not exceeding three years without option of fine.
(i) That it is in the interest of justice that there should be an end to litigation.
(j) That the Respondent will not be prejudiced in anyway whatsoever by the grant of this application having already reaped the fruits of its final judgment in Suit No.LD/2749/95”.

The Respondent opposed the Application with 20-paragraph counter-Affidavit, deposed by one Omotade Seyidara, a legal practitioner, who averred that –
16. Contrary to paragraphs 42 and 43 of the Judgment Debtors’ Affidavit, this suit was regularly constituted at the Failed Banks Tribunal. It is the Judgment creditor that has suffered severe hardship arising from the huge Judgment debt, which adversely affected its operation as a Bank. The Judgment Debtors have worsened the Judgment creditor’s hardship by not allowing it to reap the fruits of the Judgment of the Failed Banks Tribunal due to the unending frivolous applications of the Judgment Debtors before this court.
17. It is the Judgment Debtor who have been acting in bad faith.
Notwithstanding their unequivocal and clear admission, after the Judgment of the Failed Banks Tribunal and before this Federal High Court that they are owing the Judgment creditor and have plans for finally setting the huge debt, the Judgment Debtors have relished in throwing in very vexatious and spurious applications so as to deny the Judgment Creditor the opportunity of realizing the huge sum of money owed to it by the Judgment Debtor’s. The Judgment creditor shall found on the letter from Judgment Debtor’s Counsel to my Chambers dated 24/5/1999 as well as the Judgment creditor’s letter to my Chambers dated 18/6/1999.
18. It is in the interest of justice to dismiss the Application of the Judgment Debtor with substantial cost and thereby restrain the judgment Debtors from surreptitiously keeping this case indefinitely in Court.
19. The Judgment creditor will be irreparably prejudiced if the Judgment Debtor’s Application is granted.
20. I make this Affidavit in good faith.

Parties filed and adopted their respective written addresses on 16/7 /2008.
In his Ruling dated 16/10/2008, Abutu, J. (as he then was) held as follows –
“The present application is for an Order dismissing or striking out the suit for want of locus standi, want of jurisdiction and for being an abuse of Court process. It is not an application for the setting aside of the judgment of the Failed Banks Tribunal which is sought to be enforced in this Court. The application be for the dismissal or a striking out of an already concluded case is patently misconceived. It is after the judgment is set aside and the matter set down for a retrial that an application to dismiss or strike out the suit can be brought, not while the judgment is subsisting. The application is misconceived. It is hereby dismissed on the ground that it is misconceived”.

Dissatisfied with the Ruling, the Appellant appealed to this Court with a Notice of Appeal containing Grounds of Appeal, and they distilled Issues for Determination in their brief of argument prepared by A. C. Igboekwe, Esq.; –
7. Whether from the facts and circumstances of this case, the Court below had the jurisdiction to entertain this suit.
2. Whether from the facts and circumstances of this case, the institution and prosecution of this suit by the Respondent is an abuse of Court process in law
3. Whether from the facts and circumstances of this case, the Respondent (Commercial Bank for Africa Ltd.) has the locus standi in law to institute and prosecute this suit
4. Whether from the facts and circumstances of this case, the Learned Trial Judge was right in dismissing the Appellants application challenging the jurisdiction of the Court on the ground that it is misconceived.
5. Whether from the facts and circumstances of this case, the Learned Trial Judge denied the Appellants their Constitutional right to fair hearing.

The Respondent, however, submitted in its own brief of argument prepared by Lekan Awogbemila, Esq., that the issues for Determination are as follows –
(1) Whether there was a suit or action pending as at the time the Appellant’s application was brought.
(2) Assuming there was a suit, whether an application seeking to strike out or dismiss the suit in which there is a subsisting judgment is not misconceived.
(3) Whether a suit already concluded by the Failed Banks Tribunal can be challenged in anyway whatsoever by the Appellants

In my view, the Appellants’ issues captures the essence of their complaints in the said Grounds of Appeal, and I will adopt them in dealing with this appeal.
The Appellants’ contention, Madukolu V. Nkemdilim (1962) SCNLR 347, is that the Lower Court had no jurisdiction to entertain the suit for 3 reasons – first, the suit is res judicata; secondly, the institution and prosecution of this suit is an abuse of court process in law, and thirdly, the Respondent has no locus standi to commence this suit, and we shall consider them in that order.

In this case, the Appellants raised a plea of res judicata – Latin for “a thing adjudicated” and means “an issue that has been definitively settled by judicial decision, and “an affirmative defence barring the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions” – see Black’s Law Dictionary, 9th Ed. See also Ntuks v. NPA (supra), where the Supreme Court per Tobi, JSC, observed –
“Res judicata, a Latinism, means a matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment. The rule is that a final judgment rendered by a Court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies and, as to them, constitutes an absolute bar to a subsequent action involving the same claims, demand or cause of action”.
Ogbuagu JSC also held as follows in the same case – Ntuks v. NPA (supra) –
“The principle of res judicata applies where a final judicial decision has been pronounced by a judicial tribunal/court, having competent jurisdiction over the cause or matter in litigation and over the parties thereto, disposes once for all, of the matters decided so that they cannot afterwards, be raised for re-litigation between the same parties or their privies. — This is why it is firmly established that estoppels per rem judicatum or estoppels of records, is said to arise, where an issue of facts, has been judicially determined in a final manner, between the parties or their privies by a Court or Tribunal of competent jurisdiction in the matter and same issue, comes directly in question in a subsequent proceeding between the parties or their privies.”
So, where a Court of competent jurisdiction has settled the matters in dispute between the parties, none of them are allowed to re-litigate same again by bringing a fresh action. The matter is said to be res judicata. Thus, a successful plea of res judicata ousts the jurisdiction of the court in which it is raised.
The doctrine of res judicata rests on the principle that there must be an end to litigation. A party must not be allowed to re-litigate a matter that has been settled in a final decision of a court of competent jurisdiction – see The Honda Place Ltd. v. Globe Motors Nig. Ltd. (supra) Nigergate Ltd. v. Niger State Govt. (2007) LPELR-8847(CA), wherein Omoleye, JCA, explained that –
“The doctrine has been structured on two pronged rules of public policy expressed in two Latin maxims – (a ) “interest rei publica it set finis litium” – that it is for the common good that there should be an end to litigation or that it concerns the state that there should be an end of law suits or that it is for the general welfare that a period or an end be put to litigation, and (b) “nemo debet bis vexari proeadem causa” – that no one ought to be proceeded against twice if it be proved to the court that it be for one or the same cause or that no one should be sued or vexed twice on the same ground, on the same set of facts, if there has been a final decision of a competent Court”.

The estoppel created by a successful plea of res judicata, is a bar that prevents one from asserting a claim or right that contravenes what one has said or done before or what has been legally established as true; it is a bar that prevents the re-litigation of issues – see Black’s Law Dictionary. 7th Ed., Oyede v. Olusesi (2005) 16 NWLR (Pt.951) 341, Okposin v. Assam (2005) 14 NWLR (Pt. 945) 495 SC and Ikeni v. Efamo (2001) 10 NWLR (pt.720) 17 SC where Ayoola, JSC, also made the distinction between issue estoppel and cause of action estoppel –
“For cause of action estoppel to arise, the cause of action in the latter proceedings must be identical with the cause of action in the earlier proceedings. When a defence of cause of action estoppel is raised, the defence connotes that the legal rights and obligation of the parties in respect of the subject matter of the action are conclusively or deemed to have been conclusively determined by the earlier action. Cause of action estoppel requires identity not only of the subject matter but also of parties and issues in the latter and earlier proceedings. However, where a plea of cause of action estoppel cannot be raised because the causes of action in the two proceedings are not the same, a party can still plead that the other party is precluded from contending the contrary of any precise point; provided that the point in question (i) has been distinctly put in issue, and (ii) has been necessarily determined directly and certainly in the first action. The principle is stated thus in Volume 16 Halsbury’s Law of England (4th Ed.) para. 977 –
“- – Even if the objects of the first and second actions are different, the finding on a matter, which come directly (not collaterally or incidentally) in issue in the first action, provided it is embodied in a judicial decision that is final, is conclusive between the same parties and their privies”.
Be that as it may, issue estoppel and cause of action estoppel are both species of res judicata estoppel – see Ikeni v. Efamo (supra), and it is well settled that for the principle to apply, the following pre-conditions must be present –
(a) The parties/privies must be the same in both the previous and present proceedings;
(b) The claim or the issues in dispute in both proceedings must be substantially the same;
(c) The “res” or subject matter of the litigation in the two cases must be the same;
(d) The decision relied upon to support the plea of res judicata must be valid, subsisting and final; and…
(e) The court that gave the previous decision relied upon to sustain the plea must be a court of competent jurisdiction – see Nigergate Ltd. V. Niger state Govt. (supra).
In this case, it is abundantly clear from the material before the lower court that the Respondents claims in Suit No:LD/274/95 filed at the Lagos State High Court and the Application for Recovery of Debt filed at the said Tribunal are the same; the subject matter is the same and it arose out of the same transaction. The parties are the same, the Lagos State High Court that decided it is a Court of competent jurisdiction and its Judgment was a final judgment. The action is, therefore, res judicata – See Ikeni v. Efamo (supra), Achibong v. Ita (2004) 2 NWLR (pt.858) 590 SC; Afolabi v. Govt. of Osun State (2003) 13 NWLR (Pt.836) 119, Onajoko v Odulami (2000) 8 NWLR (Pt.667) 71.

Issue 1 is, therefore, resolved in favour of the Appellants. As for their Issue 2, they contend that since the Respondent’s claims had been finally determined in Suit No: LD/2479/95, the institution and continued prosecution of this suit is vexatious, oppressive and, therefore, constitutes an abuse of court process. They referred us to paragraphs 7-43 of their Affidavit, and cited the cases of – Sir Emeka Offor v. Leaders & Co. Ltd. (2007) 7 NWLR (Pt.1032) 1, Ntuks v. NPA (supra), Otto v. Mabamije (2004) 17 NWLR (Pt.903) 489; UBN Nig. Plc. v. Emole (2001) 18 NWLR (pt.745) 501, Bank Mellat v. Kazmi (1998) Q.B. 541, CBN v. Ahmed (2001) 11 NWLR (Pt.724) 369, and The Honda Place Ltd. v. Globe Motors Holding Nig. Ltd. (supra). They had a lot to say about this issue, but the gist of their grouse on this ground is captured at page 11 of their brief-
“The question to be asked is if it is proper or permissible in law for a Plaintiff to commence two suits, one after the other, against the same Defendants, in respect of the same claim, arising from the same transaction, such that in the end he has two final judgments in its hands from the different suits he instituted. In other words, is it in tune with proper judicial process for a Plaintiff to have in his hands two final judgments against the same Defendants in respect of the same claim with the result that the plaintiff can pick and choose which of the two judgments he wants to enforce, or as in this case, he decides to enforce both judgments. Clearly, this is an abuse of court process which the law abhors. In fact, law, equity and good conscience will not allow such a Plaintiff to unduly oppress the Defendants and subject them to double jeopardy. It is trite law that there must be an end to litigation and that a man ought not to be twice vexed of one and the same cause”.