CORAM

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PARTIES

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JULIUS BERGER (NIG) PLC & ANOR APPELLANTS

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MRS. PHILOMENA UGO RESPONDENTS

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AREA(S) OF LAW

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Not Available

 

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SUMMARY OF FACTS

At the Imo State High Court, the Respondent sued the Appellants wherein the lower Court in it judgment awarded to the Respondent the sum of N28, 516,680.00 (Twenty Eight Million Five Hundred and Sixteen Thousand Six Hundred and Eighty Naira) as special damages for Nigerian treatment and the sum of 108, 00.000 Lakh for her overseas treatment. Aggrieved by the decision, the Appellants appealed to the Court of Appeal, Owerri, on the grounds that the judgment of the lower Court was obtained by fraud and same should be set aside as some of the receipts tendered by the Respondent were procured by fraud/forgery, therefore, since those receipts were the basis of the trial Courts award of special damages in favour of the Respondent, those damages awarded by the trial Court in its judgment should be set aside for the obvious fraud. The appeal was dismissed and while it allowed in part, the Respondents Cross Appeal. The Appellant later returned to the High Court in suit HOW/806/2017, seeking to nullify of the decision in HOW/581/2007 on grounds that it was obtained by fraud/forgery. The Respondent did not contradict the allegations of the Appellants on the issue of the receipts but filed a Notice of Preliminary Objection, challenging, in limine, the jurisdiction of the lower Court to adjudicate over the suit on the ground that the suit at the lower Court was based on the issue of fraud/forgery, which had been determined by the Court of Appeal in its interlocutory ruling which interlocutory application was filed by the Appellants. In reaction, the Appellants filed a counter affidavit to the preliminary objection and the trial Court upheld the preliminary objection in part, agreeing with the Respondent, that the Appellants suit as constituted was caught up by the doctrine of issue estoppel. It also held that the suit was an abuse of the process of Court. The lower Court proceeded to dismiss the suit and awarded cost of N350, 000.00 (Three Hundred and Fifty Thousand Naira) to the Respondent as cost, against the Appellants. It is the decision in HOW/806/2017 that the Appellant has appealed against in this present Appeal.

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HELD

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Appeal Dismissed

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ISSUES

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Having regard to the Ruling of this Honourable Court, delivered on 28/3/2013 in Appeal No. CA/OW/146/2010, whether the Trial Court was right to hold that Appellants suit No. HOW/806/2017 was caught – up by issue estoppel and was an abuse of the Court process, and was an afterthought. Was the Suit No. HOW/806/2017 caught-up by issue estoppel, abuse of the Court process and an afterthought?

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RATIONES DECIDENDI

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COURT

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ABUSE OF COURT PROCESS –WHAT CONSTITUTE AN ABUSE OF COURT PROCESS?
“I lack appropriate words to describe the depth of the depravity, impunity and abuse of the Court process, displayed by Appellants and their Counsel in this case! No lawyer worth his name should engage in this type of practice, which appears as a deliberate act of mischief to frustrate, annoy and oppress a successful party in litigation, pretending to pursue a Court process. In the case of Edjerode V. Ikine (2001) LPELR – 1479 SC, it was held:
The law is that abuse of Court process in regard to multiple actions between the same parties on the same subject matter may arise when a party improperly used judicial process to the irritation, annoyance and harassment of his opponent, not only in respect of the same subject matter, but also in the same issues in other actions. See also Okafor V. AG Anambra State (1991)6 NWLR (Pt.200) 659 at 681; Saraki V. Kotoye (1992) 9 NWLR (Pt.264) 156.
In Globe Motors Holdings Ltd Vs Honda Motor Co. Ltd (1998) 5 NWLR (Pt.550) 373 at 381, the Supreme Court said:
An instance of such (abuse) is in form of vexatious and oppressive actions When an action is instituted deliberately to circumvent the cause of justice and to bring the judicial process into ridicule and contempt. Any action or course of conduct that is seen designed to introduced anarchy into the judicial system must be dealt with appropriately See also Dingyadi V. INEC (No.2) (2010)18 NWLR (Pt.1224) 154 SC; (2010) LPELR – 952 SC”.
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JUDGMENT AND ORDER, COURT, PRACTICE AND PROCEDURE

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SETTING ASIDE A JUDGMENT OF COURT- OPTIONS AVAILABLE TO A PARTY WHO SEEKS TO SET ASIDE A JUDGMENT OF COURT ON ACCOUNT OF IT BEING OBTAINED BY FRAUD
“As argued by the learned Senior Counsel for Respondent, a party who seeks to set aside a judgment of the Court, for having been obtained by fraud, can do so by either of two ways, namely by means of appeal against the said judgment, or by means of a fresh action (for motion in the same Court) seeking to set aside the said judgment. See Vulcan Gases Ltd V. Gesellschaft Fur Industries A.G. (2001) 9 NWLR (Pt.719) 610 at 668.
The party, in my opinion, cannot take the two option simultaneously, or after the failure of the other. The above scenario seemed to have played out in the case of Onwuneme & Anor V. Customary Court Mbawsi & Ors (2018) LPELR – 44474 CA, where Appellant, while pursuing an appeal against a decision of the Customary Court at the Customary Court of Appeal, also filed a motion at the High Court, seeking to quash the said same judgment of the Customary Court. We held as follows:
Surprisingly, Appellants abandoned their appeal at the Customary Court of Appeal and went on a frolic to the High Court, with what I consider a ridiculous prerogative writ to quash a legitimate decision of the Customary Court, which they were also appealing against in CC/UM/A/5/2002 at the Customary Court of Appeal formally. I think that was a gross abuse of the Court process. Appellant should have pursued the appeal against that decision of the customary Court of Appeal, or make the decision of the Customary Court of Appeal the subject matter of the prerogative writ as was the case of CCA Edo State V. Aguele & Ors (supra).
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RES-JUDICATA, ESTOPPEL

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PRINCIPLE OF RES-JUDICATA – APPLICABILITY OF THE PRINCIPLE OF RES-JUDICATA AND ESTOPPEL
“The case of Ntuks & Ors V. NPA (2007) All FLWR (Pt.387) 809 is quite instructive, on issue estoppel and the principles of res-judicata, generally, when the Supreme Court said:
It is now firmly settled that, where a Court of competent jurisdiction has settled by final decision, the matter in dispute between parties, none of the parties or 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-parties. Thus, a successful plea of res judicata ousts the jurisdiction the jurisdiction of the Court in the proceedings in which it is raised.
See the case of Ukaegbu & Ors V. Ugoji & Ors (1991) 6 NWLR (Pt.196) 127; Osunrinde & Ors V. Ajamogun & Ors (1992) 6 NWLR (Pt.246)156 at 183 – 184 and Alhaji Ladimeji & Anor Vs Salami &Ors (1998) 5 NWLR (Pt.548) 1 at 13. 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 and for all of the matters decided, so that they cannot after wards be raised for re-litigation between the same parties or their privies. See Agu V. Ikewibe (1991)4 SCNJ 56.
That, of course remains the law, and no party is expected to re-litigate a suit which had been heard and determined finally by a competent Court by any guise simply because he may have discovered something which he failed to employ at the time the case was heard which if applied, would have tilted the balance of the case to favour him. Appellants attempt to resort to claims of fraud/forgery against the Respondent, for which they sought to lead fresh evidence on appeal (CA/OW/146/2010) , to change the judgment of Court in HOW/581/2007 clearly shows the motive for embarking on this ill-fated suit HOW/606/2017. They (Appellants) are not happy with the judgment in HOW/581/2007 and want it frustrated and defeated, at all cost! Of course, having taken part in the trial of the suit (HOW/581/2007) to conclusion, and having also used Appeals to defeat that decision unsuccessfully thus far, Appellants must bow to the outcome of the existing judicial process in the case, which are binding on them. See Tukur V. Umar UBA & Ors (2012) LPELR – 9337 SC:
“Generally, estoppel means a bar that prevents one from asserting a claim or right that contradicts what one has said or done before or what has been legally established as true. A bar that prevents the re-litigation of issues.” Per Ariwoola JSC
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APPEAL, CONSTITUTIONAL LAW, JUDGMENT AND ORDER, PRACTICE AND PROCEDURE

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RIGHT OF APPEAL – WHETHER AN APPEAL SHALL LIE FROM ANY ORDER MADE EX-PARTE, OR BY CONSENT OF THE PARTIES OR AS TO COST ONLY
“Where, in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall with the leave of that Court or of the Court of Appeal lie to the Court of Appeal, but no appeal shall lie from any order made ex-parte or by consent of parties, or relating only as to cost.
That is a throw back to Section 241 (2)(c) of the 1999 Constitution of the Federal Republic the 1999 Constitution of the Federal Republic of Nigeria as amended which says:
2) Nothing in this section shall confer any right of appeal-
c) without the leave of the Federal High Court or a High Court or the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to cost only.
See the case of SPDC Vs Registrar of Business Premises Abia State (2015) LPELR 24285 CA; (2015)3 CAR – 433 at 451, where it was held:
Thus, apart from the Appellant trying to preempt the Respondents case by raising that issue, it also lacks power to raise the complaint as that would be an attempt to fault ex-parte order of the Trial Court, or appeal against it contrary to Section 14(1) of the Court of Appeal Act, 2004 , which says but no appeal shall lie from any order made ex-parte, or by consent of the parties or relating only to cost.
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COURT, PRACTICE AND PROCEDURE

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AWARD OF COST – AN AWARD OF COST IS AT THE DISCRETION OF THE COURT
“But the issue of cost to be awarded is always at the discretion of the trial Court (or Court making the award) and can only be faulted, if it was not exercised judicially and judiciously. See Mbonu & Ors V. Nwagbara & Ors (2018) LPELR – 44711 CA; Nwawka V. Adikamkwu(2014) LPELR – 22927 CA Shanusi &Ors V. Odugbemi & Anor (2017) LPELR 43377 CA; Saeby v Olaogun , Akinbobola V. Plisson Fisko Nig. Ltd (1991)1 NWLR (Pt.167)270 (SC). –

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Court of Appeal Act, 2004|

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