UGBOR v. OKECHUKWU
(2021)LCN/15749(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, May 06, 2021
CA/A/151/2015
Before Our Lordships:
Abubakar Datti Yahaya Justice of the Court of Appeal
Uchechukwu Onyemenam Justice of the Court of Appeal
Peter Olabisi Ige Justice of the Court of Appeal
Between
IGNATIUS MONDAY UGBOR APPELANT(S)
And
ENGR. OZUIGBO OKECHUKWU RESPONDENT(S)
RATIO
THE POSITION OF LAW ON A JUDGEMENT ON THE MERIT
Now a judgment on the merits arises, when it is based on the evidence led by the parties or law applicable, thus determining their legal rights. It is to be distinguished from matters of procedure, practice, form or jurisdiction. So if a Court strikes out a case because a condition precedent to instituting it is absent, thus denying the Court jurisdiction to entertain it, that is not a determination on the merits. See CARDOSO VS. DANIEL & ORS (SUPRA) AT 45 AND U.T.C. (NIG) LTD VS PAMOTEI 1989 20 NSCC (PT.1) 523 AT 559. It does not matter what language the Court used in terminating the suit i.e. it does not matter, that the Court said it dismissed the suit. In law, it amounts to a striking out of the suit and can never operate as a res judicata. See OBASI MERCHANTS CO. LTD. VS. M.B.A. SECURITIES LTD (SUPRA) AT PAGE 279, where Pats – Acholonu JSC held that
“Indeed where a case is said to have been dismissed in the High Court but the circumstances show that such dismissal could not possibly connote or denote the determination as to put a finality to the cases, the Court views such a dismissal as a mere striking out”. PER YAHAYA, J.C.A.
WHETHER OR NOT IT IS AN ABUSE OF COURT PROCESS WHEN LEAVE TO FILE AN APPLICATON IS NOT SOUGHT OR OBTAINED
When leave to file an application or a matter is required as a condition precedent, or an extension of time is required to file a process, but such leave or extension of time is not sought for or obtained and the process is struck out, it can be presented again on fulfilling the condition precedent. That does not in anyway, amount to an abuse of Court process. PER YAHAYA, J.C.A.
ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): This appeal is from the Ruling of the High Court of the Federal Capital Territory, delivered on the 5th November 2014 wherein it dismissed an application filed by the Appellant herein, to set aside an Arbitral Award on the grounds that the same application had been determined by the FCT High Court earlier.
The brief facts show that the parties herein, entered into an agreement whereby the Respondent was to take the place of the Appellant in respect of a house, block of flats, No. 26 Panasonic Estate, Maitama Abuja, which the Federal Government sold to the Appellant. Along the way, disagreements arose and as a result of Arbitration, an award was made against the Appellant. The Appellant then filed an application about seven months after the award, to set it aside. The Appellant did not seek for extension of time to file the application. The Court held that a similar application had been determined by the Court earlier, with the same subject matter and same parties. It held that it had no jurisdiction to entertain it and it dismissed same. Hence this appeal. The Appellant’s brief was filed by Mr. K. Maduka on 22nd January, 2015 but deemed filed on 9th April 2019. Therein, he distilled one issue —
“Whether an application which is incompetent can be dismissed”
The Respondent’s brief was filed on 30th October 2020 by Mr. Maduakolam Igwe but deemed filed on 16th November, 2020. He also identified one issue —
“Whether or not the learned trial Judge was right to have dismissed the Appellant’s application before him for being an abuse of Court process”.
The Respondent also filed a Notice of Preliminary Objection on 30th October, 2020. The Appellant then filed a Reply brief on 8th February 2021.
PRELIMINARY OBJECTION
The Notice of Preliminary Objection is predicated on two grounds —
1. That the entire grounds of appeal in the Appellant’s Notice of Appeal offend the provisions of Order 7 Rule 2(3) Court of Appeal Rules 2016, for being vague, argumentative or narrative.
2. The Appellant failed to obtain leave of Court to file an appeal against the Ruling of the Trial Court delivered by Hon. Justice L. H, Gummi (CJ)(RTD) on the 16th of March 2008 as contained in ground two of the Appellant’s Notice of Appeal.
In arguing the Preliminary Objection in the brief, learned counsel referred to ATUYEYE VS. ASHAMU (1987) 1 NWLR (PT. 49) 267 on vagueness of a ground of appeal which makes it uncertain, incapable of being understood. He argued that the grounds here are vague argumentative and that the particulars do not relate or flow from the grounds of appeal. He referred to PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD VS. ABAYOMI BABATUNDE (2008) 8 NWLR (PT. 1089) 267 AT 286 AND OSASONA VS. AJAYI & 3 ORS. (2004) 14 NWLR (PT. 894) 527 AT 544. On ground 2, counsel argued that it is an attack on the Ruling of the Court presided over by Justice L. H. Gumi delivered on 16th March, 2008 dismissing the application and that it is not in order.
I have considered the Reply of the Appellant to the Preliminary Objection and the grounds of appeal vis-a-vis the Notice of Appeal. I am of the view that the grounds of appeal are neither vague nor argumentative. The grounds are clear and they convey clearly, the complaints against the Ruling appealed against. The particulars are directly on point. In respect of objection No. 2, learned counsel got it completely wrong as the appeal is not against the Ruling of the Court delivered on 16th March 2008 by Justice L. H. Gummi (CJ) (RTD). The Notice of Appeal at page 199 of the record shows that it is against the Ruling delivered on 5th November, 2014. This Objection is therefore totally at variance with the Notice of Appeal and it is discountenanced. Again, since the grounds of appeal are not vague but clear and lucid, the objection on that ground is also discountenanced. The result is that the Preliminary Objection is without any merit and it is discountenanced.
On the appeal, the issue raised by the Appellant is apt and I shall utilise it.
LONE ISSUE
“Whether an application which is incompetent can be dismissed”.
Learned counsel for the Appellants submitted that an application which is incompetent for procedural non compliance cannot be dismissed but only struck out as a Court has no jurisdiction to determine an incompetent process — TAOFEEK ALAO VS. AFRICAN CONTINENTAL BANK LTD. 2000 6 SCNJ 63 AT 77. Counsel submitted that the application in issue was not brought within the six days required by rules of Court and there was no extension of time to do so; it was therefore incompetent and that was the feature that prevented the Court from exercising jurisdiction to hear and determine it. He referred to the Ruling of the trial Court at page 106 of the record, which shows that the Court made a finding that the application to set aside the Arbitral Award, was incompetent. In such a situation, the Court should have struck out the application. He placed reliance on TSOKWA MOTORS (NIG) LTD. VS. U.B.A PLC (2008) 1 SCNJ 323 AT 347 AND FASAKIN FOODS (NIG) LTD. VS. MARTINS SHOSANYA (2006) 4 SCNJ 229 AT 240. Counsel submitted that the application was not heard on the merits and should therefore have been struck out, not dismissed since the right of the parties as to whether the plaintiff (Appellant) was entitled to the reliefs he sought or not, had not been decided — OBASI MERCHANT CO. LTD VS. MERCHANT BANK OF AFRICA SECURITIES LTD (2005) 2 SCNJ 277 AT 278 AND BUDO NUHU VS. ISOLA OGELE (2003) 12 SOW 158 AT 166. He argued that the Ruling in contention, was not a final decision but an interlocutory one and so cannot sustain a plea of res judicata – AGBOGUNLERI VS. DEPO (2008) 1 SOW 522 AT 534. Counsel also submitted that where there is a procedural incompetence, a process should be struck out but that even if a Court dismissed it, in a situation where there was no final determination on the merit, it is taken as a mere striking out -OBASI MERCHANTS CO. LTD VS M. B. A. SECURITIES LTD. (SUPRA) AT 278 – 279. He argued that the Ruling of L. H. Gummi J was not a determination that was final and on the merits and therefore could not be relied upon to prevent the application in contention from being heard. He urged us to allow the appeal.
In his reaction, learned counsel for the Respondent argued that the trial Judge was right when he held that the Appellant’s application is an abuse of process and so declined jurisdiction and dismissed it. On abuse of Court process, he referred to OWONIKOKO & ORS. VS. AROWOSAIYE 1997 10 NWLR (PT. 523) 61: AFRICANA LTD. & ANOR VS. ROS JOS LTD. & ORS. (2017) LPELR – 43499 (CA); ARUBO VS. AIYELERU (1993) 3 NWLR (PT. 280) 126 AT 142 AND DINGYADI VS. INEC (NO. 2) (2011) 18 NWLR (PT. 1224) 154. Counsel referred to paragraphs 32-33 of the Appellant’s affidavit in support of the application and argued that they disclose abuse of process of Court and so the application was rightly dismissed. He argued that what the Appellant needed to do, was to appeal against the decision of L.H. Gummi J, not file another application to revise or review same – ELEAZOR OBIOHA VS. INNOCENT IBERO & ANR. (1994) 1 NWLR (PT.322) 503: AKIN OLUGBADE VS. ONIGBONGBO COMMUNITY (1974) 6 SC 1; ADIGUN VS. A.G. OYO STATE (1987) 2 NWLR (PT.56) 197 AND CHUKWUKA VS. EZULIKE (1986) 5 NWLR (PT.45) 892. He argued that by the Ruling delivered on 16th March 2008, the Court was funtus officio. He urged us to dismiss the appeal.
Now, I find it necessary to look at the Ruling of L.H. Gummi (CJ) (RTD) delivered on 16th March 2008, which the Ruling leading to this appeal referred to, and held that it had no jurisdiction to re-open the issue, since it had been decided, arguing that the principle of res judicata applied. I must however at this stage, observe that the argument and submissions of learned counsel for the Respondent that the trial Court held that the Appellant application is an abuse of process, was his argument before Gummi CJ, but not held by Court. The trial Judge never held that the application was an abuse of Court process. Instead, it held that it had no jurisdiction to entertain it, as it would have amounted to re- litigating what Gummi (CJ) decided.
The Ruling of Gummi CJ delivered on 16th March, 2008 is at pages 142-171. At page 154 of the record, the trial Judge said —
“On the 2nd issue formulated for determination, i.e. whether the Court can set aside the arbitral award dated 18/12/2006 … under Section 29(1)(a) of the Arbitration and Conciliation Act Cap. A.18 LFN 2004, a party who is aggrieved by an arbitral award may within three months from the date of the award, apply to the Court to set it aside, The instant case is clearly one that falls within the purview of Section 29(1)(a) (supra). The question here is, was the present application made within three months after the award was made? The answer is obviously in the negative…
I am of the humble view that since the Applicant herein filed the present motion seeking to set aside the arbitral award almost seven months after the award was made, the prayer to set aside the award is incompetent and ought to suffer no lesser fate than a dismissal and it is accordingly dismissed, On the 3rd issue as to whether this Court can set aside its order of judgment made…
It is pertinent to note that this Court made the Order recognizing the arbitral award… on March 2007. I have further observed that the present applicants filed motion seeking to set aside that order or judgment on 7th September, 2007… and another filed on 31st October 2007…..Both were filed more than five months from the date the order or judgment was made, clearly more than the six days time frame prescribed by Order 35 Rules 5.
The Applicants did not deem it fit to apply for leave of this Court for extension of time within which they can apply to set aside the Order.
Under Order 20 Rules 2 and 3 of the Rules of this Court, the parties cannot consent to enlarge time fixed by the Rules….from the foregoing, it is quite plain that the 3rd prayer on the present motion paper seeking to set aside the order of this Court made on 12/3/2007 is incompetent and liable to be struck out for non compliance with the Rules of this Court”.
Now a judgment on the merits arises, when it is based on the evidence led by the parties or law applicable, thus determining their legal rights. It is to be distinguished from matters of procedure, practice, form or jurisdiction. So if a Court strikes out a case because a condition precedent to instituting it is absent, thus denying the Court jurisdiction to entertain it, that is not a determination on the merits. See CARDOSO VS. DANIEL & ORS (SUPRA) AT 45 AND U.T.C. (NIG) LTD VS PAMOTEI 1989 20 NSCC (PT.1) 523 AT 559. It does not matter what language the Court used in terminating the suit i.e. it does not matter, that the Court said it dismissed the suit. In law, it amounts to a striking out of the suit and can never operate as a res judicata. See OBASI MERCHANTS CO. LTD. VS. M.B.A. SECURITIES LTD (SUPRA) AT PAGE 279, where Pats – Acholonu JSC held that
“Indeed where a case is said to have been dismissed in the High Court but the circumstances show that such dismissal could not possibly connote or denote the determination as to put a finality to the cases, the Court views such a dismissal as a mere striking out”.
It is clear, that the Ruling of Gummi (CJ) on the 16th March 2008, was not a Ruling that determined the rights of the parties therein, in the sense that it did not decide the controversy presented therein, as to whether the Appellant was infact entitled to the reliefs he sought or not. It was a Ruling that declined to entertain the application and grant the prayers sought because it was brought out of time, without a prayer for extension of time to bring it. In law, the dismissal amounts to a striking out, even if “dismissal” was stated.
It follows therefore, that when a matter is not decided to finality, i.e. on the merits, determining the rights of the parties therein, it can never be a bar to a further similar application on the same subject matter and the same parties. It cannot operate as a res judicata. See AGBOGUNLERI VS. MR. JOHN DEPO & ORS (SUPRA) AT 546-547; AND CBN VS. AUTO IMPORT EXPORT (2013) 2 NWLR (PT. 1337) 80 AT 117.
The trial Judge in the Ruling leading to this appeal was therefore off the mark, when he held that
“the said application has been rested by my learned brother Hon. Justice L. H Gummi (CJ) (RTD) when it (sic) delivered its (sic) ruling on the 16th day of March, 2008 and the Honourable Court is of the view and holds that it cannot re-litigate over a subject matter with the same parties which has been adjudicated upon and decided by the High Court of the Federal Capital Territory Abuja, since this Honourable Court cannot sit on appeal over the decision which has been decided by my learned brother Judge, hence for want of jurisdiction to entertain the said matter the Honourable Court decline (sic) Jurisdiction and so order the case is hereby dismissed..”
The “decision” by Gummi (CJ) (RTD) on 16th March 2008, is not such that a similar application cannot be presented again, provided that an extension of time is sought for and obtained.
It is also clear that all the arguments of learned counsel for the Respondent being on abuse of Court process, did not feature in the reasons of the Court declining to entertain the application. Certainly there was nothing like an abuse of Court process simply because application was filed “without leave for extension of time and the application was refused…” or that he “instructed that another application be filed and that was done on the 15th day of May 2008 but has not been heard”
When leave to file an application or a matter is required as a condition precedent, or an extension of time is required to file a process, but such leave or extension of time is not sought for or obtained and the process is struck out, it can be presented again on fulfilling the condition precedent. That does not in anyway, amount to an abuse of Court process.
I find error in the trial Judge declining to entertain the application (I am not saying to grant the prayers), and I set it aside. Again, he ought not to have dismissed the application. I regard the dismissal as one of striking out. In the premise, I find that this appeal has merit and it succeeds. I allow it. I set aside the Ruling of the trial Court delivered on the 5th November 2014 in suit No. FCT/HC/CV/2697/12. I order the application filed by the Applicant/Appellant on 14th December 2012, to be heard and determined by the High Court of the FCT, differently constituted, timeously. I remit same to the Chief Judge of the FCT High Court for his necessary action. N50,000 costs to the Appellants against the Respondent.
UCHECHUKWU ONYEMENAM, J.C.A.: I have read before now the lead Judgment just delivered by my learned brother, ABUBAKAR DATTI YAHAYA, JCA.
I fail to fault the decision of my learned Brother that when a matter is not decided on the merit, determining the right of the parties therein, it cannot be a bar to a further similar application on the same subject matter and the same parties.
I too hold that the appeal is meritorious and the same is accordingly allowed. I also set aside the Ruling of the trial Court delivered on the 5th November, 2014 in Suit No. FCT/HC/CV/2697/12 and I remit the case file back to the Chief Judge of FCT High Court to be re-assigned to another judge for hearing.
I abide by the Order made as to costs.
PETER OLABISI IGE, J.C.A.: I agree.
Appearances:
OBA MADUABUCHI SAN WITH HIM FRANK MAMEDA For Appellant(s)
M. IGWE WITH HIM EMMANUEL ANI For Respondent(s)