AREPO & ORS v. SALAMI & ORS
(2022)LCN/16252(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Monday, June 20, 2022
CA/L/1092/2017
Before Our Lordships:
Onyekachi Aja Otisi Justice of the Court of Appeal
Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal
Peter Oyinkenimiemi Affen Justice of the Court of Appeal
Between
1. CHIEF WAHEED AREPO (The Baale Of Igando-Orudu) 2. CHIEF B.O OWUYE (Community Leader) 3. CHIEF TAIWO AGBAJE (Baale Of Alakun) 4. CHIEF GANIYU RAJI (Baale Of Ofiran) 5. ALHAJI L.A AGBAJE (Community Secretary) 6. CHIEF TAIWO OYAFUNKE APPELANT(S)
And
1. HIS ROYAL MAJESTY OBA RAFIU BAMIDELE SALAMI (The Onibeju Of Ibeju Land) 2. MR. SURAJU KAYODE BELLO ATERO 3. THE CHIEFTAINCY COMMITTEE IBEJU-LEKKI LOCAL GOVERNMENT 4. THE SECRETARY, CHIEFTAINCY COMMITTEE IBEJU-LEKKI LOCAL GOVERNMENT 5. HONOURABLE COMMISIONER AND CHIEFTAINCY AFFAIRS, LAGOS STATE 6. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, LAGOS STATE RESPONDENT(S)
RATIO
WHETHER OR NOT PARTIES CAN RE-LITIGATE AN ISSUE BY BRINING A FRESH ACTION WHERE IT HAS BEEN SETTLED BY A COURT OF COMPETENT JURISDICTION
Now, it is trite that where a Court of competent Jurisdiction has settled by a final decision, the issues in dispute between the parties, neither of the parties nor their privies may re-litigate that issue again by bringing a fresh action. The matter is said to be Res Judicata. The Estoppel created is one by record inter partes. There are two kinds of this Estoppel. The first is called Cause of Action Estoppel while the second is known as Issue Estoppel.
HIS LORDSHIP IDIGBE JSC distinguished the two types of estoppel by record inter partes in the case Law Authority of FADIORA VS GBADEBO (1978) 3 SC.219 228-229 in these words:
“Now, there are two kinds of Estoppel by Record Inter Partes or Per Rem Judicatam, as it is generally known. The first is usually referred to as ‘Cause of Action Estoppel’ and it occurs where the Cause of Action is merged in the Judgment, that is, Transit in rem Judicatam. See KING VS HOARE (1844) 13 M.& W 495 AT 504. Therefore, on this Principle of Law (or Rule of Evidence) once it appears that the same Cause of Action was held to lie (or not to lie) in a Final judgment between the same parties, or their privies, who are litigating in the same capacity (and on the same Subject Matter), there is an end of the matter. They are precluded from re-litigating the same Cause of Action. There is however a second kind of Estoppel Inter Partes and this usually occurs where an issue has earlier on been adjudicated upon by a Court of competent Jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their Privies); in these circumstances, ‘Issue Estoppel’ arises. This is based on the Principle of Law that a party is not allowed to (i.e. he is precluded from) contending the contrary or opposite of any specific point which having been once distinctly put in issue, has with certainty and solemnity been determined against him. See CUTRAM VS MOREWOOD (1803) 3 EAST 346. Issue estoppel applies whether the point involved in the earlier decision is one of fact or law or one of mixed fact and law.” PER BANJOKO, J.C.A.
THE POSITION OF LAW ON THE RE-EVALUTION OF EVIDENCE BY AN APPELLATE COURT
Re-evaluation of evidence by an Appellate Court is only done where the trial Court has erred in evaluating the facts found by it. This is where the Appellate Court can re-examine the whole facts and come to an independent decision from the Court of trial. The Apex Court summarised this in the Case Law Authority of ALI VS STATE (2015) LPELR-24711(SC) thus:
“Appeal Court can exercise the power/jurisdiction to re-evaluate evidence. Appeal Court can do so where the trial Court fails, neglects or refuses to do so or does it in an improper way. The appeal Court can conveniently embark on such re-evaluation where for instance: (a) The trial Court’s evaluation of the evidence is clearly perverse; (b) The trial Court drew wrong inferences from the totality of the evidence; (c) The trial Court applied wrong principles of the law to accepted facts in the case. Appellate Courts interfere to ensure that justice prevails only where the trial Court failed to draw the correct inferences from the evidence or arrived at a finding consequent upon its consideration of extraneous matters.”
See also FALEYE & ORS VS DADA & ORS (2016) LPELR-40297(SC), LASISI VS STATE (2013) LPELR-20183(SC). PER BANJOKO, J.C.A.
ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A. (Delivering the Leading Judgment): This appeal is against the Lagos State High Court judgment delivered by Hon. Justice T.A.O. Oyekan-Abdullai on 16th March, 2017, in the Suit No LD/1928/11, wherein she upheld the Preliminary Objection filed by the 5th & 6th Respondents and struck out the Suit.
Facts of the case relevant to this appeal is that the Appellants herein filed the suit at the lower Court on 29th day of October, 2011 by way of a Writ of Summons and sought the following reliefs:
a. A Declaration that the Chieftaincy Certificate dated 26th April, 2008 issued by the 1st Defendant to the 2nd Defendant recognizing the 2nd Defendant as Baale of Igando-Orudu and all other steps taken thereafter which conferred the Baaleship title of Igando-Orudu on the 2nd Defendant is illegal, unlawful, null and void.
b. A Declaration that the letter dated 15th September, 2011 written by the 1st Defendant to the 5th Defendant in pursuant to the Chieftaincy Certificate dated 26th April, 2008 issued by the 1st Defendant to the 2nd Defendant titled “RE: CONFIRMATION AND APPROVAL OF CHIEF SURAJUDEEN OLUKAYODE BELLO AS BAALE OF IGANDO ORUDU” which conferred the Baaleship title of Igando-Orudu on the 2nd Defendant is contrary to the tradition, customs and existing declaration regulating the selection and Appointment of a Baale of Igando-Orudu.
c. A Declaration that 1st Claimant having been duly Selected and Appointed as the Successor of Alhaji (Chief) Fatai Aribidesi Agbaje in accordance with the customs, tradition and existing Declaration of Igando-Orudu Town Chieftaincy is the incumbent and subsisting Baale of Igando-Orudu in Ibeju Lekki Local Government of Lagos State.
d. AN ORDER setting aside the Chieftaincy Certificate dated 26th April, 2008 issued by the 1st Defendant to the 2nd Defendant recognizing the 2nd Defendant as Baale of Igando-Orudu and all other steps taken thereafter which conferred the Baaleship title of Igando-Orudu on the 2nd Defendant.
e. AN ORDER setting aside the letter dated 15th September, 2011 written by the 1st Defendant to the 5th Defendant in pursuant to the Chieftaincy Certificate dated 26th April, 2008 issued by the 1st Defendant to the 2nd Defendant titled “RE: CONFIRMATION AND APPROVAL OF CHIEF SURAJUDEEN OLUKAYODE BELLO AS BAALE OF IGANDO ORUDU” and alleged meeting of 26/7/2011 which wrongly conferred the Baaleship title of Igando Orudu on the 2nd Defendant.
f. AN ORDER of Perpetual Injunction restraining the 2nd Defendant, from parading himself, signing any document or wearing the paraphernalia of Baale of Igando Orudu contrary to the tradition, customs and existing declaration regulating the selection and appointment of a Baale of Igando Orudu.
g. AN ORDER of Perpetual Injunction restraining the 1st, 3rd 4th 5th and 6th Defendants from Recognizing, Approving, Confirming or Conferring on the 2nd Defendant the title of Baale Igando-Orudu or otherwise giving effect or consent to the letter dated 15th September, 2011 written by the 1st Defendant to the 5th Defendant.
h. AN ORDER of Perpetual Injunction restraining the 1st, 3rd 4th 5th and 6th Defendants either by themselves, Privies, Assigns or Successors in Titles from appointing or conferring the title of Baale of Igando-Orudu or any transformation the headship of Igando-Orudu may acquire, on any person other than in accordance with the customs and tradition of Igando-Orudu community which recognizes such title to be available only to the descendants of the founders of the Igando-Orudu community who are Ijokobiri and Lagbaa.
The 5th – 6th Respondents, by a Notice of Preliminary Objection dated 8th May, 2012 which can be found on Page 956, Volume II of the Records of Appeal, at Pre-Trial Conference Stage, filed an Objection to the Hearing of the Suit. The said Objection was premised on Ground of Lack of Jurisdiction by the lower Court based on alleged Statutory Limitation Bar. The Objection was overruled and accordingly dismissed. See Page 1175 of Volume III of the Records of Appeal.
Mid-Trial, the 5th & 6th Respondents yet again brought another Notice of Preliminary Objection, which can be seen at Page 1705 of Volume VI of the Records of Appeal. In opposition thereto, the Appellants pointed out that not only was the Action not Statute Barred, both the parties and the Court itself were bound by the Subsisting Decision of the lower Court on the issue. The Court has identified when the Cause of Action accrued and this was not appealed against. The 5th & 6th Respondents or any of the parties, are estopped thereby from contending to the contrary. This is because the lower Court itself had become functus officio as regards this issue.
After hearing the motion, the learned trial Judge upheld the Notice of Preliminary Objection and struck out the Suit.
Being aggrieved by the decision, Appellants now filed the instant appeal via the Notice of Appeal dated 13th June, 2017, which can be seen on Page 1935 of Volume IV of the Records of Appeal. With the Leave of this Honourable Court, the Notice was amended and the Appellants’ brief was consequentially amended and filed 21st May, 2019, based on the said Amended Notice of Appeal in compliance with the Rules of the Court.
The 5th and 6th Respondent filed their Brief of Argument 4th February, 2019. The 1st Respondent filed his Brief of Argument 23rd December, 2019. The 2nd Respondent filed his Brief of Argument 29th September 2020. The Appellants filed Reply to the 5th & 6th Respondent’s brief, 5th January 2022 while they filed Reply to the 1st & 2nd Respondents Brief 3rd February 2022.
In the Appellants Brief, the Appellants raised three (3) Issues for Determination, which are:
1. Whether the procedure adopted by the Learned Trial Judge on 16th March, 2017, and the manner of the delivery of his ruling thereto by which he simply pronounced that he had upheld 5th & 6th Respondents’ Notice of Preliminary Objection, but while not considering all issues raised for determination in opposition to the Notice of Preliminary Objection, accord with the due process of law.
2. Whether in considering Paragraph 40 only of the Appellants’ Statement of Claim and in isolation of real and relevant paragraphs that depict the Appellants’ Case, the Learned Trial Judge in coming to the conclusion thereto that the Cause of Action was statute-barred, had not overlooked the case the Appellants made, leading to a miscarriage of justice.
3. Whether given the subsisting ruling of the lower Court dated 13th February, 2014, affirming when the Cause of Action arose to be 15th September, 2011, the lower Court had not become functus officio based on Issue Estoppel with no Jurisdiction to subsequently hold that the Cause of Action arose earlier in 2008, so as to adjudge the action herein to be Statute Barred.
The 1st Respondent on the other hand, raised two (2) Issues for Determination, which are: –
1. Whether the 5th and 6th Respondents’ Application dated 8th May, 2012 and 9th February, 2017 are the same.
2. Whether the lower Court look only on Paragraph 40 of the Statement of Claim or the whole Statement of Claim brought by the Appellants at the lower Court.
The 2nd Respondent in his Brief of Argument formulated four (4) Issues for Determination, which are:
1. WHETHER the learned trial Judge descended into the arena or merely advised parties in the circumstance of this case.
2. WHETHER the learned trial Judge was bound to consider every issue raised by parties and read the entire ruling before reading the conclusion.
3. WHETHER from the ruling of the lower Court dated 16th March, 2017, the learned trial Judge considered only Paragraph 40 of the Appellants’ Statement of Claim before arriving to conclusion.
4. WHETHER the issues decided in the ruling of the lower Court dated 13th February, 2014 are the same with the one dated 16th March, 2017 to render the lower Court functus officio or estopped from deciding the issues in the ruling of 16th April, 2017.
The issue formulated by the 5th & 6th Respondents in their brief, is an objection against the competence of this appeal, and is as follows: –
“Whether this matter is ripe for appeal in view of the pending Application dated 7th day of April, 2017, wherein the Appellants is praying the lower Court to set aside its judgment of 16th March, 2017 delivered by T.A.O Oyekan-Abdullahi J.”
Now, a close look at all the issues formulated by the parties above reveals that the issue formulated by the 5th and 6th Respondent is an objection to the competence of this appeal. An Appellate Court should first consider a Preliminary Objection raised during an appeal and express its opinion on whether it agrees or not because a Successful Preliminary Objection may have the effect of disposing of the Appeal. It does not matter if the Objection is frivolous or not, it should not be ignored. This is because it is a Cardinal Principle of Administration of Justice to let a party know the fate of his Application whether properly or improperly brought. See FIRST BANK VS T.S.A. INDUSTRIES LTD (2010) LPELR-1283 (SC), NWANTA VS ESUMEI (1993) 8 NWLR PART 563 PAGE 650, TAMBIO LEATHER WORKS LTD VS ABBEY (1998) 12 NWLR PART 579 AT PAGE 548.
Therefore, it is important for this Court to consider whether this appeal is truly competent before this Court or not before going into its substance.
THE 5TH & 6TH RESPONDENTS ’ OBJECTION
Whether this matter is ripe for appeal in view of the pending Application dated 7th day of April, 2017 wherein the Appellants is praying the lower Court to set aside its Judgment of 16th March, 2017 delivered by T.A.O Oyekan-Abdullahi J.
ARGUMENTS OF THE PARTIES
Learned Counsel to the 5th and 6th Respondents submitted on this issue that after the lower Court struck out the Appellants’ Suit on 16th March, 2017 for want of Jurisdiction based on the Preliminary Objection filed by the 5th and 6th Respondents, the Appellants on the 7th day of April, 2017, filed a Motion on Notice along with Affidavit in Supports and a Written Address.
The said Motion on Notice is praying the lower Court to set aside its judgment of 16th of March, 2017, that Motion is still pending before the lower Court. In response to the Motion, the 5th & 6th Respondents filed Counter-Affidavit dated 22nd May, 2017, along with a Written Address in support. The Appellants, rather than arguing the said Motion or ask the lower Court to strike it out, rushed to this Court and filed this Appeal. The Appellants ought to allow the lower Court to decide/make pronouncement on the Application of 7th April, 2017 before approaching this Court.
Learned Counsel to the 5th and 6th Respondents submitted further that by virtue of Section 241(1) of the 1999 Constitution, an appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in a Final Decision. Accordingly, this matter can only be ripe for appeal, where lower Court refused to set aside its Judgment of 16th March, 2017 or where the lower Court refused the Appellant’s Motion dated 7th April, 2017. Therefore, he argued that this appeal is an abuse of Court Process. He relied on AG (ONDO) VS AG (EKITI) (2001) 5 WRN 1 S.C at 148, OGOEJOFO VS EDAMIKUE (2000) 12NWLR (PART 780) 171, ONYEABUCHI VS INEC (2002) 29 WRN AT 64.
He therefore urged this Court to dismiss the appeal.
Learned Counsel to the Appellants on the other hand submitted that the 5th – 6th Respondents misconceived this present appeal because the appeal is properly brought and there is no inhibition to the determination of same by this Honourable Court. As submitted by the 5th & 6th Respondents, if same Motion on Notice under reference by the 5th and 6th Respondents had been withdrawn before the lower Court prior to the filing of this appeal, the appeal herein will not be incompetent. Learned Counsel referred to Pages 1923 – 1925 of Volume IV of the Records of Appeal, containing the Notice of Withdrawal of the said Motion from the lower Court filed on 8th June, 2017, prior to the subsequent filing of the Notice of Appeal commencing this appeal on 9th June, 2017 as found on Pages 1926-1934 of Volume IV of the Records of Appeal.
Learned Counsel therefore submitted that it is the law and it is also inherently conceded in the 5th & 6th Respondents’ Brief of Arguments that upon the said filing of Notice of Withdrawal, the said Motion on Notice stood withdrawn. He relied on EZOMO VS A-G BENDEL (1986) 4 NWLR (PART 36) 448 AT 462.
He urged the Court to discountenance the 5th & 6th submission and therefore consider the appeal on its merits.
RESOLUTION OF THE 5TH & 6TH RESPONDENTS’ OBJECTION
It is not in doubt that appeals are creatures of statutes. So, the Jurisdiction of the Court of Appeal to adjudicate on any matter brought before it is statutory and also guided by the rules of the Court. The failure by any Appellant or Appellants to comply with that Statutory Provision or Requirement prescribed by the Relevant Law/Laws or Rules will certainly deprive the Appellate Court of Jurisdiction to entertain and/or adjudicate on the appeal. See UWAZURIKE & ORS VS AG FEDERATION (2007) LPELR-3448(SC).
Now, the 5th and 6th Respondents have submitted that the Appellants have a pending Motion before the lower Court and therefore this Court is not yet seised of this Appeal. This Court has gone through the Records of this Appeal and found on Pages 1923 – 1925 of Volume IV of the Records of Appeal, the Notice of Withdrawal filed on 8th June, 2017 of the said Appellants’ Motion from the lower Court. This Notice of Withdrawal predated the Notice of Appeal filed 9th June, 2017 which can be seen at Pages 1926-1934 of Volume IV of the Records of Appeal commencing this appeal. Though the Appellants truly filed a Motion at the trial Court and they also filed a Notice of Withdrawal of that Motion before filing this appeal, there is no evidence in the Records before this Court that the trial Court had given any order in respect of that Withdrawal. Now is it safe to say that since the Appellants have filed the Notice of Withdrawal, the Motion has lost its life, despite the fact that the trial Court has not ruled on it?
To find answer to this question, this Court went through the High Court Civil Procedure Rules of Lagos State 2004, which is the applicable rules to this appeal, and it found that the rules does not actually provide a position for this kind of situation. However, this scenario no doubt can be likened to the situation of an Appellant willing to withdraw his appeal before that appeal is called to be heard. I will therefore draw wisdom from the decision of the Supreme Court held, as far back as the year 2000, in the Case Law Authority of AKUNEZIRI V OKENWA & ORS (2000) LPELR-393(SC), when interpreting ORDER 8 RULES 6 (1) TO (5) OF THE RULES OF THE SUPREME COURT, which are in pari materia with ORDER 11 RULES 1 TO 5 OF THIS COURT, 2016. His Lordship Ayoola, JSC held thus:
“In my judgment, interesting and ingenious as the Preliminary Objection may appear to be, it lacks merit. There is no provision in the rules, as they now stand, enjoining a party who wishes to withdraw his appeal to seek the leave of the Court so to do. Where he withdraws the appeal without the consent of the other parties to the appeal, signified as provided in Rule 6(2), the appeal shall remain on the list as provided for in Rule 6(4), merely for the hearing of any issue as to costs or otherwise remaining outstanding between the parties, and for making an order as to the disposal of any sum lodged in Court as security for the costs of the appeal. There is no provision in Rule 6 for hearing of any issue other than those specified. There appears, also, to be no provision in Rule 6 which enables a party to the appeal to oppose the withdrawal of the appeal.”
The Apex Court has reiterated this interpretation of the rules relating to the rights and responsibilities of the parties and the duty and function of the Court in a situation where an Appellant decides to withdraw his appeal before it is called upon for hearing in several case law authorities such as PDP & ORS V EZEONWUKA & ANOR (2017) LPELR-42563 (SC), DINGYADI VS INEC (NO. 2) (2010) 18 NWLR (PART 1224) 154 AT 205-206 H-C, EDOZIEN V EDOZIEN (1993) 1 NWLR (PT. 272) 678 AT 699, ADEAGBO V YUSUF (1990) 6 NWLR (PART 158 (588).
I agree with these decisions of the Supreme Court, even as I am bound. I am therefore fortified in finding that the consent of the parties to the withdrawal of an Application only serves to warrant the Registrar of Court to peremptorily remove the Application from the list of Motions before the Court without the necessity of the Application being brought before the Court. The Motion has actually lost its life as soon as the Notice of Withdrawal is filed. Where however there is no consent by the other Parties, as in the instant appeal, it is the Court that is clothed with discretion of hearing the Application only as it relates to matters of costs or deposits lodged as security for the costs of the Applicant.
Therefore, an Applicant may at any time before a Motion is called on for hearing, serve on the parties to the Motion and file with the Registrar a Notice to the effect that he does not intend to prosecute the Motion any further. A Motion which has been withdrawn in this manner, whether with or without an order of the Court, shall be deemed to have been dismissed. If all the parties to the Application consent to the withdrawal of the Application without an Order of the Court, the Applicant may file in the Registry the document or documents signifying such consent and signed by the parties or by their Legal Representatives and the Application shall thereupon be deemed to have been withdrawn and shall be struck out of the list of Motion by the Registrar. See PDP & ORS VS EZEONWUKA & ANOR (2017) LPELR-42563(SC), DINGYADI VS INEC (NO. 2) (2010).
With reliance on the above decisions of the Apex Court coupled with the fact of the filing of a Notice of Withdrawal, which was unopposed, the Motion stands dismissed without any further ado. That being the case, the said Motion on Notice filed on 8th June, 2017, by the 5th and 6th Respondents has been overtaken by events, this appeal having been entered after the withdrawal of the Motion, this Court is hereby validly seised of this matter. The appeal is competent and this issue is therefore resolved in favour of the Appellant.
I will now go into the substance of this appeal.
THE MAIN APPEAL
All the issues raised by the various parties in this appeal have been reeled out in the earlier part of this judgment. I have carefully looked into those issues and I found that the issues formulated by the Appellant will resolve all the contentions in this appeal coupled with the fact that the Appellant is the proponent of the appeal.
Issue 3 formulated by the Appellant bothers on the Jurisdiction of the trial Court, which is a threshold issue, and will therefore be treated as issue 1 in this judgment, because any party whom this issue is resolved against will surely record a Pyrrhic victory even if the remaining two issues are resolved in its favour. Therefore, this Issue will be considered as issue 1 for the purpose of this judgment.
ISSUE 1
Whether given the subsisting ruling of the lower Court dated 13th February, 2014, affirming when the Cause of Action arose to be 15th September, 2011, the lower Court had not become functus officio based on issue Estoppel, with no jurisdiction to subsequently hold that the Cause of Action arose earlier in 2008 so as to adjudge the action herein to be statute barred (Appellants’ Issue 3).
SUBMISSIONS OF THE COUNSEL
On this issue, learned Counsel to the Appellant submitted that the decision of the lower Court delivered on 16th March, 2017, which upturned its earlier decision, is tantamount to its sitting on appeal over its own earlier decision. This is because upon a Court of competent Jurisdiction taking a Decision in a matter, even if at an interlocutory stage or howsoever, that Court has become functus officio on that issue and cannot take a decision contrary to said earlier decision at any subsequent proceeding in the matter. To the Court, that issue had become res judicata. And if that issue decided is only on an aspect of the case, that issue to it had become issue estoppel. He relied on USMAN VS KADUNA STATE HOUSE OF ASSEMBLY (2008) ALL FWLR (PART 397) PAGE 78, NWOGA VS BENJAMIN (2010) ALL FWLR (PART 518) PAGE 924, S.P.& ASSOCIATES LTD VS M.R.C.A.G. (2003) FWLR (PART 177) PAGE 922.
Learned Counsel submitted further on this point by referring to Pages 1791-1792 of Volume IV of the Records of Appeal and pointed out that in an earlier Objection raised by the 5th & 6th Respondents, the lower Court on 13th February, 2014, had held that the Cause of Action in this suit, was based on the letter of the 15th of September, 2011, thus the trial Court had determined when the Cause of Action arose. That finding and decision is subsisting. This decision has become res judicata and constitutes an issue estoppel. It was never appealed against, nor in any manner, set aside. So, none of the parties can be allowed to contend to the contrary, or raise it again and the Court itself is bound by it. See AGAKA VS AYILARA (2012) ALL FWLR (PART 608) PAGE 899; TOMTEC NIG LTD VS F.H.A. (2010) ALL FWLR (PART 509) PAGE 400; DABUP VS KOLO (1993) 9 NWLR (PART 317) PAGE 269; ADIGHIJE VS NWAOGU (2010) ALL FWLR (PART 521) PAGE 112; DABUP VS KOLO (1993) 9 NWLR (PART 317) PAGE 269, MOGAJI VS NEPA (2003) FWLR (PART 153) PAGE 239.
Learned Counsel submitted further that raising objections in piecemeal is not permissible and the trial Court was not supposed to countenance the Latter Application. Unfortunately, the trial Court did not only consider the Application, but went ahead to come to a decision which is at variance with its earlier decision.
Learned Counsel finally submitted that assuming without conceding that the 1st Respondent is a Public Officer and covered by Obas and Chiefs Laws of Lagos State, the action complained about being embarked upon on 15th September, 2011, and the action herein taken out on 26th October, 2011, less than Two (2) Months after the accrual of same, it cannot be correct to hold that the action was taken outside three (3) months.
He therefore urged the Court to resolve this issue in favour of the Appellants.
On the other hand, learned Counsel to the 1st Respondent submitted on this issue that the 5th and 6th Respondent Application dated 8th May, 2012, is not the same with the Application dated 9th February, 2017. He referred to the 5th and 6th Respondent’s Notice of Preliminary Objection dated 8th May, 2012 which is contained in Page 956 Volumes II of the Record of Appeal as well as to the 5th and 6th Respondent’s 2nd Notice of Preliminary Objection dated 9th February, 2017, which is contained at Page 1705 Volume IV of the Record of Appeal and stated that the grounds and the reliefs sought in these two Applications are different.
Learned Counsel submitted further that the first Preliminary Objection was centered on failure of the Appellants to comply with the Statutory Remedy as provided for by Section 24(3) of the Obas and Chiefs of Lagos State Laws, while the 2nd Preliminary Objection was centered on the Action being Statute Barred, by virtue of SECTION 2(A) OF THE PROVISION OF PUBLIC OFFICERS (PROTECTION ACT) CAP P41 LAWS OF FEDERATION OF NIGERIA 2010 and he relied on UDOH VS ABEFE (2001) 11 NWLR, E 114.
Finally, learned Counsel submitted that the decision of the lower Court in the ruling delivered on 13th February, 2014 to the effect that the Cause of Action arose on the 15th February, 2011 when juxtaposed with the subsequent holding that the Cause of Action arose earlier in 2008, does not constitute Issue Estoppel. This is because the prayers sought by the 5th and 6th Respondents in the 1st and 2nd application of their Preliminary Objections dated 8th May, 2012 and 9th February, 2017 respectively and the two (2) applications brought by the 5th and 6th Respondents, are not similar to each other.
On the part of the 2nd Respondent, the submission of the learned Counsel to the 2nd Respondent on this issue is not dissimilar to the position taken and the submissions made by the learned Counsel to the 1st Respondent. In order to save our Judicial time, this Court will not reproduce this submission as the arguments of the party has been captured in the 1st Respondent’s submissions.
Other Respondents in this appeal did not make any submission on this issue.
The Appellant’s reply was a repetition of his arguments made earlier in his brief. It is trite law that a Reply Brief is a response to a new point of law raised in the Respondent’s Brief, and is not an opportunity for the Appellant to rehash the arguments in his brief. It is filed when an issue of law or arguments raised in the Respondent’s Brief, calls for a response. Therefore, this brief should only deal with new points arising from the Respondent’s Brief. In the absence of a new point, a Reply Brief is otiose and the Court is entitled to discountenance it. A Reply Brief is not a repair kit, to put right any lacuna or error in the Appellant’s Brief. See MOZIE & ORS VS MBAMALU & ORS (2006) LPELR-1922 (SC) and AWUSA VS NIGERIAN ARMY (2018) LPELR-44377 (SC).
RESOLUTION OF THE ISSUE
Now, it is trite that where a Court of competent Jurisdiction has settled by a final decision, the issues in dispute between the parties, neither of the parties nor their privies may re-litigate that issue again by bringing a fresh action. The matter is said to be Res Judicata. The Estoppel created is one by record inter partes. There are two kinds of this Estoppel. The first is called Cause of Action Estoppel while the second is known as Issue Estoppel.
HIS LORDSHIP IDIGBE JSC distinguished the two types of estoppel by record inter partes in the case Law Authority of FADIORA VS GBADEBO (1978) 3 SC.219 228-229 in these words:
“Now, there are two kinds of Estoppel by Record Inter Partes or Per Rem Judicatam, as it is generally known. The first is usually referred to as ‘Cause of Action Estoppel’ and it occurs where the Cause of Action is merged in the Judgment, that is, Transit in rem Judicatam. See KING VS HOARE (1844) 13 M.& W 495 AT 504. Therefore, on this Principle of Law (or Rule of Evidence) once it appears that the same Cause of Action was held to lie (or not to lie) in a Final judgment between the same parties, or their privies, who are litigating in the same capacity (and on the same Subject Matter), there is an end of the matter. They are precluded from re-litigating the same Cause of Action. There is however a second kind of Estoppel Inter Partes and this usually occurs where an issue has earlier on been adjudicated upon by a Court of competent Jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their Privies); in these circumstances, ‘Issue Estoppel’ arises. This is based on the Principle of Law that a party is not allowed to (i.e. he is precluded from) contending the contrary or opposite of any specific point which having been once distinctly put in issue, has with certainty and solemnity been determined against him. See CUTRAM VS MOREWOOD (1803) 3 EAST 346. Issue estoppel applies whether the point involved in the earlier decision is one of fact or law or one of mixed fact and law.”
Now, learned Counsel to the Appellants has submitted that the lower Court had earlier ruled on the accrual date of the Cause of Action in this suit in the ruling of 13th February, 2014, in respect of the Preliminary Objection dated 8th May, 2012, so the lower Court was wrong to have held a different date as the date of the accrual of the Cause of Action in its ruling of 16th March, 2017.
In Estoppel Per Rem Judicatam or Issue Estoppel, to determine whether 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 VS 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 lower Court had held in the ruling dated 13th February, 2014, in respect of the Preliminary Objection dated 8th May, 2012 thus:
“A perusal of the averments of the Respondents in Paragraph 43, 44, 45, 46, 47, 54, 55, 56 and 60 of their Statement of Claims reveals that the Respondents’ quarrel is with the manner in which the 1st Defendant purported to appoint the 2nd Defendant as Baale in his letter dated 15th September, 2011, in alleged disregard of the resolution of the 3rd Defendant and contrary to his own public declaration that the 2nd Defendant had been withdrawn as Baale with immediate effect at the 3rd Defendant meeting on the 9th day of July, 2008. This Court is being asked to inquire into the legality of that letter in view of the precedents. This Court has the Jurisdiction to do so and I so hold.”
The background fact to the above decision of the lower Court is that the Respondents (then as Defendants) had asked the lower Court through the Notice of Preliminary Objection dated 8th day of May, 2012, to dismiss the suit for failure of the Claimant to exhaust statutory remedies as provided under Section 24(3) of the Obas and Chiefs of Lagos State Law Cap 02 Volume 6 Laws of Lagos State 2003, before the institution of the present Suit. This section provides that where there is a dispute as to whether a person has been appointed in accordance with Customary Law to a Customary Chieftaincy, the Chieftaincy Committee may determine the dispute.
The basis on which the objection is raised is that the Onibeju of Ibeju Land had consented to the election and appointment of the 2nd Defendant as the Baale of Igando Orudu and had informed the 5th Defendant of the Approval by the 3rd Defendant of the Appointment by a Letter dated the 15th of September, 2011. The Respondents ought to have had recourse to the 3rd Defendant for resolution before instituting the present action.
The Appellant, as the Claimants, on the contrary, alleged that after the initial Confirmation, Recognition and Certification of the 2nd Defendant as Baale of Igando Orudu in 2008, they had protested to the 3rd Defendant, who summoned an emergency meeting and resolved to strip the 2nd Defendant of the Baale title. The 3rd Defendant protested, and set up an Ad-Hoc Committee, which recommended that the 2nd Defendant should stop parading himself as Baale. It was subsequent to these decisions that the 1st Defendant wrote the letter dated 15th September, 2011 stating that he had conferred the 2nd Defendant with the title. The Appellants then alleged that they had exhausted recourse to the 3rd Defendant.
In view of this background facts and of the Notice of Preliminary Objection, which gave birth to the Decision of the Trial Court quoted above, it is glaring that the trial Court clearly considered the date (15th September, 2011) as the date that Appellants’ Cause of Action accrued. Its Decision in that ruling was based on this date, 15th September, 2011.
However, in resolving the Latter Preliminary Objection raised before it, the trial Court on 9th February, 2017, relied on another date i.e. 2008 as the date that the Cause of Action accrued in this Suit. Having earlier relied on 15th September, 2011 in a proceeding involving same parties and same subject matter, the lower Court cannot swim backwards to take another date as the date that the Cause of Action arose. That is a clear case of double speaking. As far as the issue of when the Cause of Action arose is concerned before the lower Court, the lower Court was already functus officio by its ruling of 13th February, 2014. Therefore, 15th September, 2011, stands as the date that the Cause of Action arose for any proceeding of the Court that has to do with the date of the Cause of Action until appealed against. Reliance is placed on BAMGBEGBIN & ORS v. ORIARE & ORS (2009) LPELR-733(SC), ADONE & ORS v. IKEBUDU & ORS (2001) LPELR-191(SC), COKER & ANOR v. SANYAOLU (1976) LPELR-877(SC).
Now, in respect of the Latter Preliminary Objection raised by the Respondents dated 9th February, 2017, the Appellants have argued that if the trial Court had stuck to its earlier date of accrual of Cause of Action, which is 15th September, 2011, the lower Court would not have reached a wrong decision that the action of the Appellants is statute barred.
Re-evaluation of evidence by an Appellate Court is only done where the trial Court has erred in evaluating the facts found by it. This is where the Appellate Court can re-examine the whole facts and come to an independent decision from the Court of trial. The Apex Court summarised this in the Case Law Authority of ALI VS STATE (2015) LPELR-24711(SC) thus:
“Appeal Court can exercise the power/jurisdiction to re-evaluate evidence. Appeal Court can do so where the trial Court fails, neglects or refuses to do so or does it in an improper way. The appeal Court can conveniently embark on such re-evaluation where for instance: (a) The trial Court’s evaluation of the evidence is clearly perverse; (b) The trial Court drew wrong inferences from the totality of the evidence; (c) The trial Court applied wrong principles of the law to accepted facts in the case. Appellate Courts interfere to ensure that justice prevails only where the trial Court failed to draw the correct inferences from the evidence or arrived at a finding consequent upon its consideration of extraneous matters.”
See also FALEYE & ORS VS DADA & ORS (2016) LPELR-40297(SC), LASISI VS STATE (2013) LPELR-20183(SC).
Again, Section 15 of the Court of Appeal Act provides as follows:
“The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the Court below is authorised to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purpose of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.”
Now, having faulted the premise on which the trial Court based its ruling of 16th March, 2017, and going by the Judicial Authorities cited above, as well as Section 15 of Court of Appeal Act, this Court is empowered to consider on merit the 5th and 6th Respondents’ Notice of Preliminary Objection dated 9th February, 2017 and take a justifiable judicial position on same.
In the 5th and 6th Respondents’ Preliminary Objection dated 9th February, 2017, they had sought dismissal of this Suit at the lower Court on the ground that the action is statute barred by virtue of the provision of Section 2(a) of the Public Officers (Protection) Act, Cap P41, Laws of the Federation of Nigeria, 2010. The objection is supported with a four (4) Paragraph Affidavit sworn to by one Saka Agbedina, a Civil Servant of Lagos State Ministry of Justice, and a Written Address.
Section 2(a) of the Public Officers (Protection) Act, Cap P41, Laws of the Federation of Nigeria, 2010provides as follows:
“Limitation of Action; the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury within three months next after the ceasing thereof: Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison.”
The General Form of Writ of Summons taken out for the commencement of this Suit is part of the Records of Appeal before this Court as seen at Pages 1719-1723 of the Records of Appeal. By that General Writ, this Suit was commenced 27th October, 2011. In view of the earlier resolution made by this Court in the earlier part of this judgment that the right date of accrual of the Cause of Action of this Suit is 15th September, 2011, the date of commencing this Suit which is 27th October, 2011, still falls within the Three (3) Months Statutory Period mandated for commencement of an action against a Public Officer by provision of Section 2(a) of the Public Officers (Protection) Act, Cap P41, Laws of the Federation of Nigeria, 2010.
By the foregoing careful analysis, it can be seen that the trial Judge arrived at erroneous conclusion due to the consideration of a wrong date as the date of accrual of Cause of Action in this Suit.
As a result of this, this appeal is hereby allowed.
An order is hereby made setting aside the ruling of the lower Court delivered 16th March, 2017. In its place, an order is hereby made dismissing the Notice of Preliminary Objection by the 5th and 6th Respondents dated 9th February, 2017, which was premised on another date of accrual.
This Suit is hereby sent back to Chief Judge of Lagos State High Court to be re-assigned to another Judge for hearing de novo.
ONYEKACHI AJA OTISI, J.C.A.: I read in advance a draft copy of the judgment of my Lord, Adebukunola Adeoti Banjoko, JCA, in which this appeal was allowed. I am in agreement with the reasoning and conclusions therein, and adopt the same as mine.
I abide by the orders made in the lead judgment to remit the case back to the Hon. Chief Judge of the lower Court for re-assignment of the matter to another Judge of the lower Court for hearing de novo.
PETER OYINKENIMIEMI AFFEN, J.C.A.: My Lord, Adebukunola Adeoti Ibironke Banjoko, JCA obliged me with a draft of the leading judgment just delivered, and I had the privilege of reading it before now. I agree with the judicial reasoning and conclusions reached on the issues raised in this appeal, which I adopt as my own.
I hereby record my concurrence with the leading judgment allowing the appeal and remitting Suit NO. LD/1928/2011 back to the Chief Judge of Lagos State for re-assignment to another Judge for trial de novo.
Appearances:
M.O.A. OLAWEPO For Appellant(s)
A.A AGBOLUAJE FOR 1ST RESPONDENT
E.I MADUABUCHI FOR 2ND RESPONDENT
AFEEZ A. ABDULLAHI FOR 5TH AND 6TH RESPONDENT For Respondent(s)
