CORAM

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COKER, CHIEF JUSTICE, NIGERIA

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PARTIES

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MR. ABODURIN KEHINDE

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MR. OSITA ENEH

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Respondent instituted a suit against the Appellant before the District Court Kaduna, in respect of the front space of his property situate at No.28 Aliyu Makama Road, Opposite Living Faith Church, Barnawa Kaduna, and vide an amended Civil Summons, he sought for an order of Court ejecting the Appellant from the front space rented him; the sum of N100, 000.00, as arrears of rent; 10% judgment interest and cost of litigation. In response, the Appellant counter-claimed for the refund of the sum of N364, 000.00 paid the Respondent, as the land did not belong to him and 10% post judgment interest. The trial Court in its judgment dismissed the Respondent’s claims and the Appellant’s counter-claim, directing the Respondent to seek the rectification of his legal status with the Kaduna South Local Government. Dissatisfied with the judgment of the District Court, the Respondent instituted another similar suit No. KDC/37cv/2014 at the Principal District Court against the Appellant. At the hearing of the said suit, the Appellant raised a preliminary objection to the competency of suit, relying on res judicata. The parties filed affidavit and counter affidavit, which was considered, by the Court, and the preliminary objection was dismissed on the ground that suit No. KDC/7cv/2013 did not finally resolve the dispute between the parties, therefore the doctrine of res judicata could not be applied to render suit No. KDC/37cv/2014 incompetent as abuse of Court process. Aggrieved, the Appellant filed an appeal vide his Notice of Appeal to the High Court of Justice challenging the decision of the Principal District Court. The High Court in its appellate jurisdiction after the hearing, affirmed the decision of the Principal District Court. Further aggrieved, the Appellant appealed to the Court of Appeal vide his Notice of Appeal challenging the decision of the lower Court.

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HELD

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Appeal Allowed

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ISSUES

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Whether the learned Judges of the High Court of Kaduna State were right when they held that the final decision in CASE NO.KDC/7CV/2013 did not finally determine the rights and liabilities of the parties and therefore was not final, to operate res judicata, in relation to suit No.KDC/37cv/2014.

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RATIONES DECIDENDI

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DOCTRINE OF RES JUDICATA – WHEN CAN THE DOCTRINE OF RES JUDICATA BE APPLICABLE TO RENDER A SUBSEQUENT SUIT INCOMPETENT?

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“What is the principles of res judicata? Or put it in another way when can the doctrine of res judicata be applicable to render a subsequent suit incompetent. In Makun & Ors v. Federal University of Technology, Minna &Ors (2011) 7 MJSC (Pt.3) P.140 @ 171, the Apex Court had this to say:
“Estoppel per rem judicatam or estoppel of record arises where all issue of fact has been judicially determined in a final manner between the parties or their privies by a Court or Tribunal having jurisdiction in the matter and the same issues comes directly in question in subsequent proceedings between the parties and their privies. It affectively precludes a party to an action, his agents or privies from disputing as against the other party in any subsequent suit, matters which had been adjudicated upon previously by a Court of competent jurisdiction between him and his adversary involving same issues.”
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PLEA OF ESTOPPEL PER REM JUDICATA – FACTS A PARTY RELYING ON A PLEA OF ESTOPPEL PER RES JUDICATA MUST ESTABLISH TO SUCCEED

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“For a plea of estoppel per rem judicatam to succeed, a party relying on it must establish the following facts:
(a) that the parties or their privies involved in both the previous and the proceedings in which the plea is raised are the same;
(b) that the claim or issue in dispute in both proceedings are the same;
(c) that the res or the subject matter of the litigation in the two cases is the same;
(d) that the decision relied upon to support the plea is valid, subsisting and final;
(e) that the Court that gave the previous decision relied upon to sustain the plea was a Court of competent jurisdiction.
The burden is on the party who sets up the defence of estoppel per rem judicatam to establish the pre-conditions conclusively. (Balogun v. Ode (2007) of Ebwa (2006) 7 NWLR (Pt.979) 382). –

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PLEA OF ESTOPPEL PER REM JUDICATA – EFFECT OF A SUCCESSFUL PLEA OF ESTOPPEL PER REM JUDICATAM

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“This Court in Liyafa v. Zubairu (2015) 9 NWLR (Pt.1465) P.557 @ 578, enunciated that, a successful plea of estoppel per rem judicatam constitutes a bar to any fresh action as between the parties or their privies. Where a plea of res judicata has been established, the jurisdiction of the Court would be ousted. Where the plea is raised, the Court in determining whether the issues, the subject matter of the two cases and the parties are same is to study the pleadings, the proceedings and the judgment in the previous proceeding. The Court may also examine the reasons for the judgment and other relevant facts to discern what was in issue in the previous case. It is a question of fact whether the parties and their privies, the fact in issue and the subject matter of the claim are the same in both the previous and the present cases. See Balogun v. Ode (2007) 4 NWLR (Pt.1023) 1; Dagaci of Dere v. Dagaci of Ebwa (2006) 7 NWLR (Pt.249) 501. –

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PLEA OF ESTOPPEL PER REM JUDICATA –CONDITION PRECEDENT FOR A SUCCESSFUL PLEA OF ESTOPPEL PER REM JUDICATAM

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“Before a plea of res judicata or estoppel per rem judicata will be upheld, the following conditions must be satisfied, namely:
1. The parties (or their privies) must be the same in the present case as well as in the previous case;
2. The issues and subject matter in both cases must be the same;
3. The decision in the previous suit must have been given by act of competent jurisdiction; and
4. The previous decision must have finally decided the issues between the parties.
See Ayuya v. Yonrin (2011) All FWLR (Pt.583) Pg.1859.
The four (4) conditions enumerated supra must be satisfied in order for a decision of a Court to be final which determined the rights of the parties finality. There is no disputes as to (i) the parties, (ii) the subject – matter (iii) the competence of the District Court in adjudicating on the suit between the parties. The only issue is, has the decision of the District Court finally decided the dispute between the parties. To resolve this issue, it is pertinent to find if the decision of the District Court is a final, which finally resolved the dispute or not. What then is a final judgment. In the case of Alor v. Ngene (2007) 17 NWLR (Pt.1062) page 163 @ 178, the Supreme Court stated that the test for deciding whether any order, decision or judgment of a Court is final or interlocutory is, does the order or decision made dispose of the rights of the parties? If it does, then it is a final one, it is does not, it is an interlocutory one. Where a decision of a Court clearly and wholly disposes of all the rights of the parties in the case, that decision is final. But where the decision only disposes of an issue or issues in the case leaving the parties to go back to claim other rights in the Court, then the decision is interlocutory. In Union Bank Plc v. Boney Marcus Industries Ltd &Ors (2005) 7 SCNJ P. 406 @ 411, the Supreme Court per KatsinaAlo JSC (as he then was) when dealing with the question of what is a final or interlocutory decision said :
“… This area of the law in the Nigerian context need not raise any confusion the ingenuity of counsel notwithstanding. There are cases galore decided by this Court on this point to the effect that a decision of this Court is final where it determines the right of the parties, it seems to me therefore that the real test for determining this question ought therefore to be this: Does the judgment or order as made finally dispose of the rights of the parties? If the judgment or order has determined the rights of the parties, then it is unquestionably a final order but if it does not, it is then an interlocutory order.”
Tobi, JSC on page 17, put in these words:
“The real test for determining whether the decision of Court is final or interlocutory ought to be by answering the question: does the judgment or order as made finally dispose of the rights of the parties? If it does, it ought to be treated as a final one, but if is does not, it is an interlocutory order. Where a decision of a Court clearly and wholly disposes of all the right of the parties in the case, that decision is final. But where the decision only disposes of a issue or issues leaving rights in the Court, then it is interlocutory.”
This Court in Olateju v. Comm. For Lands & Housing, Kwara State (2010) 14 NWLR (Pt.1213) P.1297 @ 318 had an occasion to state the position of the law on when a judgment or order is final or interlocutory per Adamu JCA thus:
“What is important to determine is whether the order or judgment passed by the Court has finally determined the rights of the parties in the proceedings in question. If the rights of the parties have been finally determined, the result and order should be regarded as final, if otherwise, it will then be an interlocutory…”
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OBITER DICTUM- MEANING OF AN OBITER DICTUM

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“For as pointed out in Nguma v. A.G. Imo State (2014) 2 MJSC P.109 @ 136.
“An obiter dictum is a by the side remark made or expressed by a judge in his decision upon a case which remark or opinion is incidental or collateral and not directly upon the question before the Court.”
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NON-SUIT- CONDITIONS THAT MUST BE PRESENT FOR A COURT TO NON-SUIT PARTIES

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“The law is trite, before a Court can non-suit, two (2) conditions must be existing (i) the parties must be invited to address the Court and both parties claiming same relief(s). See the case of Chief Balogun & Ors v. Akanji & Ors(2005) All FWLR (Pt.262) P.405 @ 427, where the Apex Court held thus:
“It is not in dispute that according to the evidence at the trial, the traditional evidence adduced by the parties in support of their cases was contradictory in each case and not be relied upon. The trial Court was therefore right to reject them both and so none of the parties was entitled to judgment on the claim for declaration of title or right of occupancy to the land in dispute. But he was wrong to non-suit the parties without hearing from them as was settled in Craig v Craig (1967) NMLR 52 and so the Court of Appeal was perfectly right to strike out the order of non-suit as incompetent.” (Underlining mine for emphasis).
See also Chukwu & Ors v. Akpelu (2013) 12 MJSC P. 58 @ 110 and Divine Ideas Limited v. Hajia Mero Umoru (2007) All FWLR (Pt.380) P. 1468 @ 1507, wherein this Court enunciated the principles of non-suit thus:
“The power to enter a non-suit rather than making an order dismissing a party’s claim is discretionary, At all times, a Court must exercise its discretion judicially and judiciously. The power to enter a non-suit will therefore depend on the circumstances arising from the facts or the state of evidence presented or conceded in each particular case. It has been held that before exercising that discretion and delivering its judgment in respect thereto, Courts are enjoined to invite parties to address them on the propriety or otherwise of non-suiting any or both parties.”
(Underlining mine for emphasis). –

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DOCTRINE OF RES JUDICATA- WHEN IS A JUDICIAL DECISION DEEMED TO BE FINAL?

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“In the case of Samuel Fadiora & Anor V. Festus Gbadebo (1978) ALL NLR 42, the Supreme Court adopted the statement of the learned authors of Spencer Bower and Turner on the Doctrine of Res Judicata (1969 Edition) in Article 164 at p. 134 where the Learned authors stated as follows:-
“A judicial decision is deemed to be final when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution and is absolute, complete and certain and when it is not lawfully subject to subsequent decision, review or modification by the tribunal which pronounced it.”
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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 Rules, 2016

 

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