UACN PROPERTY DEV. CO. PLC v. COUNTY & CITY BRICKS DEV. CO. LTD
(2020)LCN/15610(CA)
In the Court of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, April 23, 2020
CA/L/1073/2011(R)
Before Our Lordships:
Tijjani Abubakar Justice of the Court of Appeal
Gabriel Omoniyi Kolawole Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
UACN PROPERTY DEVELOPMENT CO. PLC APPELANT(S)
And
COUNTY & CITY BRICKS DEV. CO. LTD RESPONDENT(S)
EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgement): Before this Court is a motion filed 25/4/2019 by the Respondent/Applicant seeking for an order to strike out the Appellant/Respondent’s Notice of Appeal filed on 27/10/2011. The motion is supported by a 15 paragraphs affidavit. The motion was filed by Oluyele Delano, SAN.
The Appellant/Respondent filed a counter-affidavit of 8 paragraphs on 23/5/2019. Learned counsel for the Respondent/Applicant raised a single issue for determination while moving the motion thus:
“Whether the four issues for determination raised in the Appellant’s brief of argument have become academic and caught by issue estoppel as to be worthy of the deployment of the judicial time and resources of this Honourable Court in determining.”
On its lone issue for determination, it is counsel’s contention that from the above set of facts, the FGN through the Federal Ministry of Housing and Urban Development and the Attorney General was the real Defendant in the action at the lower Court; and that the case of the Appellant and the Defendants fell upon the outcome of any decision against the FGN because they derived their titles from the FGN, which was their predecessor in title. It is the submission of counsel that the findings of the lower Court against the FGN would be binding upon all successors in title, of which the Appellant is one of them. Counsel referred this Honourable Court to the four issues raised by the Appellant in its Notice of Appeal and that the issues relate to the findings made against the FGN; which findings have become determined to finality on account of the judgment of the Supreme Court in Suit No. SC/239/2011. It is the further submission of counsel that the decision is not only final against the FGN but also against all the successors in title which includes the Appellant. It is the argument of counsel that since the Appellant is a privy to the FGN and by virtue of the Supreme Court’s decision, the Appellant is caught by issue estoppel and prevented from continuing to litigate on the issue. He relied on Chief John Ehimigbai Omokhafe vs. Chief John Ilavbaoje Iboyi Esekhomo (1993) LPELR-2649 (SC).
It is the argument of counsel that the Supreme Court having decided against the FGN and its successors in title, proceeding with the determination of the issues in the substantive appeal will be tantamount to engaging in an academic exercise. He cited AR Security Solution Limited vs. Economic & Financial Crimes Commission (2018) LPELR-43828 (SC); Ardo vs. INEC & Ors. (2017) LPELR-41919 (SC) and Dahiru & Anor vs. APC & Ors (2016) LPELR-42089 (SC). He urged this Court to strike out the substantive appeal for the following reasons:
1. Because the four issues for determination in the Appellant’s brief of argument herein relate to the relationship between the Respondent and the FGN, which is the predecessor in title of the Appellant and which, by virtue of the Supreme Court judgment in SC/239/2011 of February 1, 2019, Exhibit UPDC2 attached to the counter affidavit of the Appellant, are deemed to have been finally decided between the Respondent and the FGN and the Appellant, its privy and the appeal is caught by issue estoppel.
2. Because proceeding with the substantive appeal which (sic) amount to engaging in an academic exercise.
The counsel that signed the written address of the Appellant/Respondent is Munirudeen Liadi Esq. In opposing the Respondent/Applicants’ motion, Appellant/Respondent also raised a sole issue thus:
“Considering all the facts and circumstances of this appeal and the instant application, whether the Applicant’s 040319 motion has any merit.”
It is the contention of counsel that the whole argument and submission of the Respondent/Applicant’s counsel is anchored on the Supreme Court’s judgment in SC/239/2011 and that same has finally decided the issues in dispute between the Applicant and the FGN and by extension divest the Respondent, being a successor in title to the FGN, of the right of appeal on the merit against the lower Court’s judgment. Counsel sees this as a misconception and that same cannot stand in the face of the relevant facts and the law. It is the submission of Appellant/Respondent counsel that the Respondent/Applicant was not a party in the Supreme Court appeal neither was any pronouncement of the Court made against it in regard to the merit of the instant appeal. Likewise also, the FGN is not a party in this appeal. It is the further submission of counsel that a person who is not a party to a suit cannot be bound by the decision of the Court. He relied on Ma’aji vs. Suleiman (2017) LPELR-43149 (CA) and Attorney General of the Federation vs. All Nigeria Peoples Party & Ors (2003) LPELR-630 (SC). It is therefore submitted by counsel that the Respondent/Applicant not being a party to the Supreme Court appeal, cannot be bound by the judgment delivered therein and that the said judgment cannot operate to impede the Respondent’s right to appeal the decision of the lower Court on the merit and he urged this Court to so hold.
It is the contention of counsel that the issue placed before the Supreme Court for determination was whether the FGN could appeal the lower Court’s decision out of time unlike this present appeal that deals on the ownership of the land in dispute and the jurisdiction of the lower Court in adjudicating upon the suit; which appeal was not before the Supreme Court for determination. He further contends that on the basis of this, the principle of estoppel per rem judicata relied upon by the Respondent/Applicant and other cases cited in support of same are inapplicable. Counsel argued that the Appellant/Respondent was a party who actively participated in the trial as a distinct and separate party from FGN in the suit leading to the instant appeal, and thereby has a constitutional right to appeal against the judgment of the lower Court that it is dissatisfied with. He cited Otti & Anor vs. Ogah & Ors (2017) LPELR-41986 (SC). It is the contention of counsel that the Appellant/Respondent’s argument that it originally instituted the suit against the FGN at the lower Court before other Defendants filed applications to be joined as Defendants does not change the fact that all the Defendants including the Appellant/Respondent were parties to the suit and therefore have the constitutional right of appeal against the judgment.
It is the submission of counsel that one of the issues submitted for determination in this appeal borders on jurisdiction of the lower Court to adjudicate upon the suit. He further submits that the issue of jurisdiction is a germane issue that must be decided one way or another in this appeal having been raised as same goes to the root of the suit. He referred to Okorocha vs. UBA Bank & Ors (2018) LPELR-45122 (SC). It is the final submission of counsel that where this Honourable Court comes to the determination that the lower Court whose jurisdiction the Appellant/Respondent is also challenging in this appeal lacks the jurisdiction to have entertained the suit in the first place, everything done at the lower Court and subsequently, at the Supreme Court becomes a nullity. On this note, he urged this Court to hear this appeal on the merit.
The Applicant in this application was the Plaintiff in the lower Court in Suit No. FKC/L/CS/368/2007 with the agency of the Federal Government as Defendants. Subsequently, the present Respondent who got the lease of the subject property from the FGN became Defendants. The lower Court in its judgment ruled in favour of the Plaintiff, now Applicant in this motion before this Court. The motion filed on 25/4/19 by the Applicant is to strike out the notice of appeal filed on 27/10/2011 by the Appellant who is the Respondent to this motion. The main ground of the motion is that the determination will amount to a mere academic exercise as the Supreme Court in SC/239/2011 had dismissed an appeal by the Federal Government of Nigeria on the same matter. Though the present Respondent to this motion UACN Property Development Co. Ltd was not a party to that appeal directly but since its title is derived from the Federal Government who were parties to that appeal, the decision in that appeal binds them. In the light of that, it is the case of the Applicant that the doctrine of estoppel per rem judicata is applicable in this case and so the motion should be granted. The Respondent to this application on the other hand is firm in its case that the doctrine cannot apply as the parties in both appeals are not the same and more especially that the appeal to the Supreme Court did not handle the merit of the real matter before this appeal. The appeal that the Supreme Court decided in SC/239/2011 was not on the ownership of the subject matter which this appeal of 17 grounds is all about but rather on the issue whether time could be extended for the Appellant /Applicant in that motion to appeal. The thrust of the Respondent’s case is that the real issues involved in the appeal to the Supreme Court and the real issues involved in this appeal are different and so the doctrine of estoppel per rem judicata is not applicable.
The issues for determination in this motion is therefore simple and clear. It is:
“Whether from the facts of the case the appeal lodged by the Appellant is entitled to be struck out as requested by the Application in the motion of 25/4/19.”
From the facts of the case, that is FHC/L/CS/368/2007, it is clear that several appeals were initiated. This includes the appeal to this Court and the Supreme Court. The substance of that appeal initiated by FGN was for extension of time to appeal against the judgment in that case. The Respondent to this motion was not a party to that appeal although a party to the suit at the lower Court. The lower Court and the Court of Appeal granted the motion for extension of time to appeal the judgment. There was an appeal to the Supreme Court which reversed the ruling of the Court of appeal. In other words, the Supreme Court allowed the appeal and refused the FGN the right to appeal as it is out of time. That obviously put an end to the appeal on extension of time to appeal. It is noteworthy that, the parties to that appeal to the Supreme Court are the Hon. Minister of Environment, Housing & Urban Development and the Attorney General of the Federation. The Respondent to this motion is not a party to that appeal. The law as stated by the Respondent is that only parties to an action will be bound by the decision and order of the Court. See Ma’aji vs. Suleiman (2017) LPELR-43149 (CA); In Re NDIC (2007) 7 NWLR (Pt. 1032) 54.
It is also settled law that a person who is an agent, servant or privy of a party to an action will be bound by the decision of a Court. In Madam Abusatu Agbogunleri vs. Mr. John Depo & Ors (2008) LPELR-243 (SC), the apex Court held:
“Therefore, the judgment against a testator operates downstream as the first suit ID/199/81, to operate against any fresh claim in respect of the same land or property by the same parties. This has been the position of the law for quite sometime. Thus, the general principle of the law relating to privy in title is that in transactions relating to land, any person who derives title from or takes an assignment from, or is let into possession by, or otherwise claims or “comes in” under the actual representator, is bound by the same representation, and consequent estoppel, as that which binds such actual representator. See: Tylor v. Needham (1810) 2 Taunt. 279; Spenser, Bower and Turner in their book: Estoppel by Representation, Third Edition, Butterworth, London, 1977, pages 123 – 124.”
One more case will not harm anyone. In Dr. M.O. Ofunwa vs. Oba Kabiru K. Adelaja Agbabiaka & Ors (2015) LPELR-25595 (CA), this Court per Tukur, JCA reiterating the Supreme Court’s position in Madam Abusatu Agbogunleri vs. Mr. John Depo & Ors (Supra) held:
“In the case of Maya v. Oshuntokun (Supra) this Court held that a privy is a person whose title is derived from and who claims through a party to a case. The Appellant having derived his interest in the land claimed from the Okota family (1st – 6th Respondents) and the 9th Respondents and who were both parties before the Lower Court is deemed to be a party to the case before the Lower Court and is bound by its decision. See: Madam Abusatu Agbogunleri v. Mr. John Depo & Ors (Supra) where the Supreme Court per Muhammed, JSC held:- “Thus, the general principle of the law relating to privy in title is that in transactions, relating to land, any person who derives title from or lack an assignment from or is let into possession by or otherwise claims or comes in under the actual representative is bound by the same representator and consegrent stopped as that which binds such … representator.”
Similarly, a person who has an interest in the outcome of a case should ordinarily be joined in the case otherwise he will be bound by the decision of the Court for standing by in not protecting his interest. See Iyimoga vs. Gov. Plateau State (1994) 8 NWLR (Pt. 360) 73.
The relationship between the Respondent in this motion and the Respondent in the case in the Supreme Court is that of a lessor and a lessee. This is based on the premise that the title of the Respondent is predicated on the FGN. This qualifies the Respondent as agent, servant or privy to the FGN. See Adone & Ors vs. Ikebudu & Ors (2001) 14 NWLR (Pt. 733) 385; Usman vs. ABM Oil (Nig) Ltd & Ors (2018) LPELR-46400 (CA).
In the circumstance therefore, the decision that affects the FGN will invariably affect the Respondent in this motion. The point therefore made that the decision of the Supreme Court in SC/239/2011 is not binding on the Respondent in this motion because they were not direct parties to that appeal will not fly.
Having settled this, the next issue is to determine whether the doctrine of estoppel per rem judicata applies to the facts of this case. For the doctrine to apply to any case there are certain conditions that must be satisfied. Those conditions are mutually inclusive and not exclusive. The implication is that for the doctrine to apply to this motion, the Applicant must prove that all the condition does exist. If one is missing, the doctrine will not apply. The purpose for the doctrine is to ensure that there is an end to litigation and indeed a Court should not encourage a re-litigation over a matter that a competent Court has litigated upon on the merit between the same parties or their privies over the same subject matter. See Olukoga vs. Fatunde (1996) 7 NWLR (Pt. 462) 516; Ogar vs. Igbe (2019) 9 NWLR (Pt. 1678) 534; Anwoyi vs. Shodeke (2006) 13 NWLR (Pt. 996) 34. What then are those conditions as set out in judicial authorities? I will look at a few of such cases. In Honda Place Ltd vs. Globe Motor Holdings Nig Ltd (2005) 7 SC (Pt. III) 152, the apex Court laid down the principles clearly in these words:
“It is judicially recognized by a long line of cases that for a plea of estoppel per rem judicatam to succeed, the party relying on it must establish the following requirements or pre-conditions, namely:
(1) That the parties or their privies are the same in both the previous and present proceedings.
(2) That the claim or issue in dispute in both actions is the same;
(3) That the res or the subject-matter of the litigation in the two cases is the same;
(4) That the decision relied upon to support the plea of estoppel per rem judicatam must be valid, subsisting and final; and
(5) That the Court that gave the previous judgment relied on to sustain the plea must be a Court of competent jurisdiction.
It needs to be emphasized that unless all the above constituent elements or requirements of the doctrine are fully established, the plea of estoppel per rem judicatam cannot be sustained: see Oke v. Atoloye (1985) 2 NWLR (Pt. 9) 578; Yoye v. Olubode & Ors (1974) 1 All N.L.R (Pt. 2) 118 at 122, (1974) 10 SC 209; Samuel Fadiora and Anor v. Festus Gbadebo and Anor (1978) 3 SC 219; Adone v. Ikebudu (2001) 14 NWLR (Pt. 733) 385 at 417.”
Similarly, the apex Court per Ogbuagu, JSC at page 21-22 in Balogun & Ors vs. Ode & Ors (2007) 1-2 SC 230; (2007) LPELR-719 (SC) in a similar vein held:
“For the plea of estoppel to succeed a party relying on it must establish certain facts. According to Iguh, JSC in the case of Achiakpa v. Nduka (2001) 14 NWLR (Pt.734) page 623 at page 648.
“At all events, it is trite law that for the plea of estoppel per rem judicatam to succeed the party relying on it must establish the following namely:
7. That the parties or their privies involved in both the previous and present proceedings are the same.
8. That the claim or issue in dispute in both proceedings are the same.
9. That the res or the subject matter of the litigation in the two cases is the same.
10. That the decision relied upon to support the plea is valid, subsisting and final; and
11. That the Court that gave the previous decision relied upon to sustain the plea is a Court of competent jurisdiction.
Unless all the above pre-conditions are established the plea of estoppel per rem judicatam cannot be sustained. See Oke v. Atoloye (No.2) (1986) 1 NWLR (Pt.15) 241 at 260; Yoye v. Olubode and Others (1974) 1 All NLR (Pt.2)118 at 122; Fadiora v. Gbadebo (1978) 3 SC 219 at 229 etc. The burden is on the party who sets up the defence of estoppel per rem judicatam to establish the above pre-conditions conclusively.”
Finally, on this point, I will also mention the case of Oshodi & Ors vs. Eyifunmi & Anor (2000) 7 SC (Pt. III) 145, where the apex Court also held:
“It ought to be stressed, however, that for the plea of estoppel per rem judicatam to succeed, the party relying on it must establish that –
(i) the parties or their privies are the same, that is to say, that –
the parties involved in both the previous and present proceedings are the same;
(ii) the claim or the issue in dispute in both the previous and present actions are the same;
(iii) the res, that is to say, the subject matter of the litigation in the two cases is the same;
(iv) the decision relied upon to support the plea of estoppel per rem judicatam must be valid, subsisting and final and (v) the Court that gave the previous decision relied upon to sustain the plea must be a Court of competent jurisdiction. Unless the above pre-conditions are established the plea of estoppel per rem judicatam cannot be sustained. See generally Oke v. Atoloye (1986) 1 NWLR (Pt.15) 241 at 260; Yoye v. Olubode and Ors (1974) 1 All NLR (Pt. 2) 118 at 122; (1974) 10 SC 209; Idowu Alashe and Ors v. Sanya Olori-Ilu (1965) NMLR 66; (1964) 1 All NLR 390; Fadiora v. Gbadebo (1978) 3 S.C. 219 at 229.
The burden is on the party who sets up the defence of res judicata to establish the above preconditions conclusively. Once they are established, such previous judgment is conclusive and estopps the plaintiff from making any claim contrary to the decision in the previous judgment.
In determining whether the plea of estoppel per rem judicatam or whether the issues, the subject of the two actions and the parties are the same, the Court is permitted to study the pleadings, the proceedings and the judgment in the previous proceedings. The Court may also examine the reasons for the judgment and other relevant facts to discover what was in issue in the previous case. See Fadiora v. Gbadebo (supra). It is therefore a question of fact whether the parties and their privies, the facts in issue and the subject matter of the claim are the same in both the previous and the present cases. “
The major condition for consideration in relation to the application is whether the issue disposed off at the Supreme Court is the same with the issues in the appeal. This is where we need to compare the real issues in both cases. The issues in the appeal sought to be struck out deals with jurisdiction and in fact the true ownership of the subject property. The question is whether, that was the real issue that the Supreme Court dealt with in the SC/239/2007. It is now necessary to look at the judgment of the Supreme Court delivered by his lordship Ejembi Eko, JSC. I have read the judgment of the Supreme Court attached to the counter affidavit as Exhibit UPDC 2. The appeal is obviously in relation to whether the FGN, applicants in the Federal High Court could be granted extension of time to appeal. The Federal High Court granted the application. The current Applicant, Respondent in that application appealed the order granting the FGN the extension of time to appeal. The Court of Appeal upheld the order and consequent upon that an appeal was filed at the Supreme Court. This is registered as SC/239/2007. The substance of that appeal which the Applicant here filed in the Supreme Court is to overturn the order granting the FGN extension of time to appeal. The effect of the decision of the Supreme Court is that the FGN, that, is 1st & 2nd Defendants right of appeal was denied since they were out of time allowed by law. That is the start and end of that appeal and the right of the FGN to appeal that decision. What is however clear is that the Supreme Court in that appeal did not deal with the issues of jurisdiction and the ownership of the property which are the substance of the appeal in this Court. The question therefore is whether the Supreme Court’s decision foreclosed the Appellant/Respondent from filing an appeal to the Court of Appeal on the merit of the judgment delivered by the lower Court. In my opinion, certainly not because in comparing the decision in the Supreme Court and the grounds of appeal, the issues are not the same. Though it is with respect to the same property but the issues canvassed in both cases are different. Looking at the totality of the facts of the case, it is obvious that the Applicant satisfied conditions 1.4 and 5 stated in the Oshodi vs. Eyifunmi (supra) case but could not satisfy conditions 2 and 3. Sounding very specific, the Applicant has been able to prove that the parties or their privies are the same, the judgment is from a competent Court being the Supreme Court and the judgment is valid, subsisting and final but could not prove that the issues are the same between those the Supreme Court decided on and the issues on appeal and by necessary implication the res or subject matter are not the same. In mathematical terms, the Application scored 3 out of 5 and this means 60 percent. This is a pass mark in mathematics but not sufficient to prove the condition of the application of the doctrine of estoppel per rem judicatam. This is because to succeed the Applicant must prove all 5 and score 100 percent. Anything short of that will not fly. The Supreme Court after stating the requirement to succeed in the plea of estoppel per rem judicatam stated in clear terms that all five must be proved before the party relying on it can succeed. This is what the Supreme said in Makun & Ors vs. Futminna & Ors(2011) 18 NWLR (Pt. 1278) 190 per Adekeye JSC:
“Unless all the above constituent elements or requirements of the doctrine are fully established the plea of estoppel per rem judicatam cannot be sustained.”
See also Ezeokonkwo & Ors vs. Okeke & Ors (2002) 5 SC (Pt. 1) 44.
The inability of the Applicant to prove all five clearly means that the application will fail as the Applicant has been unable to establish the doctrine of estoppel per rem judicatam. The sole issue is resolved in favour of the Respondent. This application fails and it is dismissed.
I award the cost of N100,000 (Hundred Thousand Naira) against the Applicant in favour of the Appellant/Respondent.
TIJJANI ABUBAKAR, J.C.A.: I had the privilege of reading before now the lead Ruling rendered in this appeal by my learned brother Ebiowei Tobi, JCA
I agree and adopt the Ruling as mine.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have been afforded the opportunity of reading in draft the ruling of my learned brother, Ebiowei Tobi. JCA., and agree with his reasoning and the conclusion reached therein. I also abide by the order for cost.
Appearances:
M.D. Liadi Esq., with him, T.O. Mudasiru Esq., Ibukun Fasoro (Mrs), and C.U. Nwabueze Esq. For Appellant(s)
Wale Adesokan (SAN) appears with him, Ayo Ogunlana Esq. For Respondent(s)
