CORAM

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PARTIES

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1. TASSALLAH UMARU MBEDA2. ALHAJI SALIHU GARBA SINTALI

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ABUBAKAR SARKIN FULANI

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AREA(S) OF LAW

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SUMMARY OF FACTS

The 1st Appellant sued the Respondent at the Upper Area Court, Gombi for declaration of title to the property situated in Angwan Faransa in Gombi Local Government Area, Adamawa State. The Upper Area Court gave judgment in favour of the 1st Appellant. The Respondent was dissatisfied with the said judgment and filed an appeal against it to the High Court of Adamawa State. Although the 1st Appellant did not defend the appeal, the Respondents’ brief of argument in the appeal and hearing notices were duly served on him. The lower Court allowed the appeal and the judgment of the Upper Area Court, Gombi and its writ of possession sequentially issued in favour of the 1st Appellant were accordingly set aside. However, before the final determination of the said appeal, the 1st Appellant vide a sale agreement dated the 25th of April, 2013 sold the property in dispute to the 2nd Appellant. Therefore, sequel to the said appeal, the 1st and 2nd Appellants jointly in another fresh action before the trial Court took a Writ of Summons/Statement of Claim wherein they sought “inter alia” declaration of title to the same property, perpetual injunction and general damages against the Respondent. The action is Suit No. ADSY/132/2016, the subject of this appeal. The Respondent filed a conditional appearance and by a Notice of Preliminary Objection challenged both the competence of the said action and jurisdiction of the trial Court over same. The trial Court upheld the objection of the Respondent, declined jurisdiction to entertain the Appellants’ action and forthwith struck out same. Aggrieved, the Appellants had appealed against same by their Notice of Appeal containing three Grounds of Appeal.

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HELD

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Appeal Dismissed

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ISSUES

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Whether the trial Court was not right to have upheld the preliminary objection of the Respondent and struck out the Appellants’ suit for being caught by “estoppel per rem judicatam”?

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RATIONES DECIDENDI

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DOCTRINE OF ESTOPPELS PER REM JUDICATAM – MEANING, EFFECT AND APPLICATION OF THE DOCTRINE OF ESTOPPELS PER REM JUDICATAM

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“The doctrine of “estoppels per rem judicatam”, a latin maxim, connotes that, where a court of competent jurisdiction has settled by a final decision, the issues in controversy between the parties to an action, neither the parties nor their privies may relitigate those issues again by bringing a fresh action. See the cases of: (1) Adegun Vs. AG, Osun State & Ors. (1995) 3NWLR (Pt.385) p.513 at 533-534 and (2) Osunmade Vs. Ajamogun (1992) 6NWLR (Pt.246) p.156 at p.183. The rationale behind the doctrine was long ago underscored by Aniagolu JSC (of blessed memory) in the case of: Aro Vs. Fabolude (1983)1 SCNLR p.58 in the following words:
There must be an end to litigation. Parties are not permitted to bring fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the court of the legal result either of the construction of the documents or the weight of certain circumstances. If those were permitted, litigation would have no end except when legal ingenuity is exhausted.
Black’s Law Dictionary Eighth Edition defines “res judicata” as- “a thing adjudicated”. In other words, the phrase means “an issue that has been definitely settled by judicial decision”. It is an affirmative defence barring the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been, but was not, raised in the first suit. 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.” Therefore, “estoppel per res judicata” is a doctrine barring a party from litigating an issue determined against that party in an earlier action. See pages 1336 to 1337 and 589 of Black’s Law Dictionary (supra) and the cases of: (1) Cole v. Jibunoh (2016) LPELR-40662 (SC); (2) Tukur v. Uba (2013) 4NWLR (Pt.1343) p.90; (3) Makun v. FUT Minna (2011) 18NWLR (Pt.1278) p.190 and (4) Bologun v. Adejobi (1995) LPELR-724 (SC). In the case of: Dagaci of Dere v. Dagaci of Ebwa (2006) 7NWLR (Pt.979) p.382, the Apex Court restated the rationale behind the doctrine as follows:
The doctrine of estoppels (per rem judicatam) is only founded on considerations of justice and good sense. If an issue, has been distinctly raised and decided in any action in which the parties are represented it is unjust and unreasonable to permit the same issue to be litigated afresh between the same parties or persons claiming under them.
The doctrine under discourse was equally reiterated by the Supreme Court in the case of: Cole v. Jibunoh (supra) as follows:
Where a Court of competent jurisdiction has finally settled a matter in dispute between parties, neither party nor his privy may litigate that issue under the guise of bringing a fresh action, since the matter is said to be res judicata. The judgment in Suit No. ID/1082/90 is a final judgment of a competent court, which is a judgment in rem. The finding of Martins J. in Suit No. ID/1082/90 is binding on the Appellant in this case and estops her from raising in Suit No. ID/3228/94 the issue that have been finally decided in that earlier Case-See: K Flow Farm Industries Ltd. V. University of Ibadan (1993) NWLR (Pt.290) 719 at 724.
In the earlier decision of the Apex Court in the case of: Makun v. FUT Minna (supra), which was also aptly relied upon and cited with approval by learned counsel for both parties herein, the doctrine of “res judicata” was exposited in the following succinct words:
It is a foregone conclusion in law that based on the doctrine of res judicata, where a court of competent jurisdiction has settled, by a final decision the matters in dispute between the parties none of the parties or his privies may re-litigate that issue again by bringing a fresh action. The estoppel created is said to be by record inter parties. The rule of estoppel per rem judicatam requires that where a final decision is given by a court of competent jurisdiction, the parties thereto cannot be heard to contradict that decision in any subsequent litigation between them respecting the same subject-matter. As a plea, the decision operates as a bar to a subsequent litigation and as evidence; it is conclusive between the parties to it. The plea applies where a court has given a final decision on the matter like deciding that it has no jurisdiction to entertain a matter and there is no appeal against it.
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DOCTRINE OF ESTOPPELS PER REM JUDICATAM – CONDITIONS WHICH MUST EXIST FOR A PLEA OF ESTOPPEL PER REM JUDICATAM TO BE SUCCESSFUL

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“The application of the doctrine of “estoppel per rem judicatam” is based on the four conditions which must exist cumulatively for the plea to be successful. The conditions are as follows:
1.The parties must be the same in the earlier action as in the second action;
2.The issue or the subject-matter must be the same in the earlier action as in the second action;
3.The judgment or decision in the earlier action must be a final one; and
4.The court which adjudicated upon the earlier suit must possess the requisite jurisdiction over same.
See the cases of: (1) Manson Vs. Halliburton Energy Services Ltd (2007) 2NWLR (Pt. 1018) p. 211 at p.243; (2) Makun Vs. F. U. T. Minna (supra); (3) Madukolu Vs. Nkemdilim (supra) and (4) Omokhafe Vs. Esekhomo (1993) 8NWLR (Pt.309) p.58 at p.68. –

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DOCTRINE OF ESTOPPELS PER REM JUDICATAM – WHETHER THE REQUIREMENT OF SAMENESS OF PARTIES AS ONE OF THE CONDITIONS WHICH MUST EXIST FOR A PARTY TO SUCCEED INCLUDES PRIVIES OF EITHER IN BLOOD OR LAW OR ESTATE OF ANY OF THE PARTIES

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“The law is trite that, the requirement of sameness of parties in the legal principle under discourse is not limited only to the actual parties involved in the action but includes privies of either in blood or law or estate of any of the parties. For instance, it includes privies in estate matters such as a purchaser in the position of the 2nd Appellant in the instant matter. See the cases of: (1) Nwosu v. Udeaja, (1990) 1NWLR (Pt.125) p.188 at p.220; (2) Long-John v. Blakk (2005) 17NWLR (Pt.953) p.1: (3) Odi v. Iyala (2004) 8NWLR (Pt.875) p.283; (4) Odutola v. Oderinde (2004) 18NSCQR p.577; (5) Igwego v. Ezengo (1992) 6NWLR (Pt.249) p.561; (6) Adigun v. Gov., Osun State (1995) 3NWLR (Pt.385) p.513; (7) The Honda Place Ltd. V. Globe Motors Ltd. (2005) 14NWLR (Pt.945) p.273 and (8) Ajiboye v. Ishola (2006) 13NWLR (Pt.998) p.628. In the case of: Igwego v. Ezeugo (supra), the Supreme Court reiterated that:
Where res judicata is pleaded by way of estoppel to an entire cause of action, it amounts to an allegation that the whole legal rights and obligations of the parties are concluded by the earlier judgment, which may have involved the determination of questions of law as well as findings of fact. For the plea to succeed therefore, the following must be established-1. That the issues and subject-matter were the same in the earlier as in the second action or that the plaintiff has had an opportunity of recovering and, but for his own fault, might have recovered in the first action. The cause of action must have been determined on the merits…2. The parties must be the same. Parties include their privies either in blood, law or estate. 3. The judgment in the earlier action must be a final one. The plea of res judicata is a shield rather than a sword; it is not open to a plaintiff in his statement of claim as he would thereby be impugning the jurisdiction of the court to which he has brought his action. A successful plea of estoppels per rem judicatam ousts the jurisdiction of the court before which it is raised. (The underlining is supplied by me for emphasis).
See also the case of: Daniel Tayar Trans. Ent. Nig. Co. Ltd. V. Busari (2011) LPELR – 923(SC). It is my firm view and I hold that, the parties in both the earlier suit and the suit the subject of this appeal are indistinguishable. –

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DOCTRINE OF ESTOPPEL PER REM JUDICATAM – IMPORT OF THE REQUIREMENT OF THE LAW ON SAMENESS OF SUBJECT MATTER IN DISPUTE IN A PLEA OF ESTOPPEL PER REM JUDICATAM

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“The second requirement that, the issue or subject-matter in dispute must be the same both in the earlier and second actions, postulates that once the issue in dispute has been raised and distinctly determined between the parties, the general rule, is that, neither party is allowed to fight that issue, irrespective of the facts or law involved or mixture of the two, all over-again. Hence, a party is precluded from re-litigating all over again a cause of action that has been previously determined. See the cases of: (1) Adedayo v. Babalola (1995) 7NWLR (Pt.408) p.383 at pgs. 404 – 405 and (2) Igwego v. Ezengo (supra). –

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DOCTRINE OF ESTOPPEL PER REM JUDICATAM – IMPORT OF THE REQUIREMENT FOR THE FINALITY OF THE DECISION IN THE EARLIER JUDGMENT IN A PLEA OF ESTOPPEL PER REM JUDICATAM

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On the third requirement that, the judgment or decision in the earlier action must be a final one, what this entails is that, the earlier decision must be one that is final, regarding the determination of the rights of the parties. See the case of: Ezenwa v. Kareem (1990) 3NWLR (Pt.138) at p.266. –

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JURISDICTION – MEANING AND THE FUNDAMENTAL NATURE OF JURISDICTION

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“The law is rock solid that the issue of jurisdiction of a court to adjudicate over matters is very pivotal. The word “jurisdiction” simply means, the authority, which a court has to decide matters brought before it or take cognizance of matters presented to it in a formal way for its decision. In the case of: Egharevba v. Eribo (2010) 9 NWLR (Pt. 1199) p. 411, the Supreme Court succinctly restated again the meaning and fundamental nature of jurisdiction of court in the following words:
Jurisdiction is a term of comprehensive import embracing every kind of judicial action. It is the power of a court to decide a matter in controversy and presupposes the existence of a duly constituted court, with control over the subject-matter and the parties. Jurisdiction also defines the power of the court to inquire into facts, apply the law, make decisions and declare judgments. It is the legal right by which judges exercise their authority. Jurisdiction is to a court what a door is to a house. The question of a court’s jurisdiction is called a threshold issue because it is at the threshold of the temple of justice. Jurisdiction is a radical and fundamental question of competence, for if the court has no jurisdiction to hear the case, the proceedings are and remain a nullity, however well conducted and brilliantly decided they might have been. A defect in competence is not intrinsic but rather extrinsic to adjudication. Oloba v. Akereja (1988)3 NWLR (Pt.84)508; Oloriode v. Oyebi (1984) 1 SCNLR 390; Ezomo v. Oyakhire (1985) 1 NWLR (Pt. 2) 105; Petrojessica Ent. Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) 675; Barclays Bank v. C.B.N. (1976) 6 SC 175; African Newspapers (Nig.) Ltd. v. F.R.N. (1985) 2 NWLR (Pt. 1006) 608; A.-G., Anambra State V. A.-G., Fed. (1993) 6 NWLR (Pt. 302) 692; Saleh v. Monguno (2003) 1 NWLR (Pt. 801) 221. (The underlining is supplied by me for emphasis).
Under the Nigerian legal system, courts are creations or creatures of statutes or legislations such as the grundnorm itself, that is, the Constitution or Decrees or Acts or Laws or Edicts. Hence, it is the legislations themselves that cloak the courts with powers or adjudicatory jurisdiction.
Therefore, if the Constitution, Decrees, Acts, Laws and Edicts do not grant jurisdiction to a court, the court itself and or parties cannot by agreement endow the court with jurisdiction. For once there is a defect in the competence of a court to adjudicate upon an action, the proceedings in the action no matter how otherwise so well, properly and brilliantly conducted would amount to a nullity and an exercise in futility. Hence, since courts are creatures of Statutes, their jurisdiction is confined, limited, restricted and circumscribed by the statutes creating them. Consequently, a court must study the Statute which created it and must not misconstrue same to exercise jurisdiction not donated to it thereby. See also the cases of: (1) Ndaeyo v. Ogunnaya (1977) 1 SC p. 11; (2) National Bank of Nigeria v. Shoyoye (1977) 5 SC p. 181 and (3) A.-G., Fed. v. Guardian Newspapers Ltd. (1999) 9 NWLR (Pt. 618) p. 187. –

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JURISDICTION OF COURT – DETERMINANTS OF THE JURISDICTION OF COURT

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“The law is equally very well settled that, it is only the claim of the plaintiff that the court must consider in determining whether it has jurisdiction to adjudicate upon a matter brought before it. This is because, it is the plaintiff, in the bid to have his or her rights determined, who invokes the court’s constitutional or statutory power for such determination. Accordingly, the exercise of judicial powers is vested in the courts by the Constitution and other relevant Statutes. To put it in different words, the jurisdiction of a court is determined by the plaintiff’s claim as disclosed in the endorsement on the writ of summons cum statement of claim or originating summons cum its supporting affidavit and not the averments contained in the statement of defence or counter affidavit to the originating summons, or in the law which confers the appellate jurisdiction, as the case may be. That is to say, it is the claim of the plaintiff before the court that has to be examined in ascertaining whether or not it falls within the jurisdiction conferred on the court by the Constitution or Statute which established the court and prescribed its jurisdiction. See the cases of: (1) Adeyemi v. Opeyori (1976) 6-10 SC p. 31 and (2) A.-G., Fed. v. Guardian Newspapers Ltd. (Supra); (3) Tukur v. Gov. of Gongola State (1989) 4 NWLR (Pt. 117) p. 517 and (4) C.B.N. v. SAP (Nig.) Ltd. (2005) 3 NWLR (Pt. 911) p. 152. –

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JURISDICTION OF COURT – DETERMINANTS OF THE JURISDICTION OF COURT AND THE EFFECT WHERE ANY ONE OF THEM IS LACKING

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“In the “locus classicus” case of: Madukolu v. Nkemdilim (1962)1 All NLR p.587, Bairaman FJ, laid down the conditions, which have become the leading light in matters of jurisdiction or for the competence of a court to adjudicate as follows:
A court can only be competent when (i) it is properly constituted as regards the numbers and qualification of the members of the bench and no member is disqualified for one reason or another; and (ii) the subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and (iii) the case comes before the court initiated by due process of law, and upon the fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided, the defect is extrinsic to the adjudication. (The underling is supplied by me for emphasis).
Also in the case of: Ohakim v. Agbaso (2010) 19 NWLR (Pt. 1226) p. 172 at pgs. 243 – 244, paras. H-B, the Supreme Court restated the purport of the above set out determinants of jurisdiction of court and the effect where any one of them is lacking, per Muhammad, JSC, as follows:
In addition, all law courts or tribunals, while exercising their powers must be guided by the general determinants of jurisdiction –
(a)The statute establishing the Courts/Tribunal.
(b)The subject-matter of litigation.
(c)The litigating parties.
(d)The procedure by which the case is initiated.
(e)Proper service of process.
(f)Territory where the cause of action arose or, as the case may be, where the defendant resides.
(g)Composition of the Court/Tribunal.
If any of the above is lacking, then the subject matter, the parties or the composition of the Court/Tribunal is defective which may lead to a nullity. (The underlining is supplied by me for emphasis).
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DECISION OF COURT – WHETHER THERE IS A PRESUMPTION OF THE VALIDITY AND BINDINGNESS OF A PREVIOUS JUDGMENT UNTIL IT IS UPTURNED ON APPEAL

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“Hence, the decision rendered by High Court in the said appeal Suit No. ADSM/4A/2013 is presumed in law to be a valid and subsisting decision. What is more, the plea of “estoppel per rem judicatam” presumes the correctness of the decision relied upon and competence or jurisdiction of the court which delivered the judgment or decision sought to be made the basis of the plea. See the case of: Okeke v. A.-G., Anambra State (1992) 1NWLR (Pt.215) p.60 at 81.
In the case of: Captain Shulgin Oleksander & Ors. v. Lonestar Drilling Company Limited & Anor. (2015) LPELR-24614, the Apex Court on the subject under discourse recently restated that:
The principle behind the doctrine of estoppel per rem judicatam was explained by this court in: Yusuf vs. Adegoke & Anor. (2007) 11NWLR (Pt.1045) 332 at 361-362 H-A per Aderemi JSC thus:
It has now become well entrenched in our civil jurisprudence that once a matter has been finally and judicially pronounced upon or determined by a court of competent jurisdiction, neither the parties thereto nor their privies can subsequently be allowed to re-litigate such matter in court. A judicial decision properly handed down is conclusive until reversed by a superior court and its veracity is not open to a challenge nor can it be contradicted. The term derives its force from good public policy which says there must be an end to litigation. The maxim is interest reipublical ut sit finis litium.
See also the cases of: (1) Witt & Busch Ltd. V. Dale Power System Plc. (2007) 17NWLR (Pt.1062) p.1, (2) Babatunde v. Olatunji (2000) 2SC. P.9. In the latter case, the Supreme Court held as follows:
The judgment of a court of competent jurisdiction subsists unless and until it is set aside even where the person affected by it believes it to be void or irregular. The procedure for setting it aside is simple. The party affected must appeal against the judgment. The position clearly therefore is this. That a person, who knows of a judgment, whether null or valid given against him, by a court of competent jurisdiction cannot be permitted to disobey it. His unqualified obligation is to obey it unless and until that judgment has been set aside. (The underlining is supplied by me for emphasis).
The Supreme Court in the case of: Nidocco Ltd. V. Gbajabi-Amila (2013) LPELR-20899(SC), again pungently stated that:
An order made by a Court of competent jurisdiction is valid until it is declared void by a court of competent jurisdiction……. a party who perceives that an order of Court by which he is bound or which affects his interest, is null and void ought, to seek a Court declaration to that effect. If he ignores the Court or proceeds to rely on his own personal perception that the order is a nullity, he does so at his own risk. (The underlining is supplied by me for emphasis).
In the instant matter, the two Appellants had the opportunity of recovering the “res”, the subject-matter in dispute in the appeal, Suit No. ADSM/4A/ 2013 but for their own fault in failing or refusing to defend the said appeal. See the case of: Igwego v. Ezengo (supra). The submission of the Appellants’ counsel that the Appellants did not defend the appeal against them in appeal Suit No. ADSM/4A/2013 because they were of the view that the judgment of the Upper Area Court, Gombi, which was in their favour and the subject of the appeal was invalid, is not in the best sense, but blameable.
See also the cases of: (1) Ofunne v. Okoye (1966) 1All NLR p.94; (2) Uwazurike v. Nwachukwu (2013) 3NWLR (Pt.1342) p.503 and (3) Nsirim v. Amadi (2016) LPELR-26053 (SC).
In the case of: Ikotun v. Oyekanmi (2008) 10NWLR (Pt.1094) p.100, the Supreme Court held that where the earlier decision is a final decision given by a court of competent jurisdiction, it is conclusive as to the cause of action and all the issues that are germane and decided in directly establishing the cause of action as between the parties or their privies. A party so affected by it is estopped as “per rem judicatam” from re-litigating the matter all over again. To put it in different words, there is a presumption of the validity and bindingness of a previous judgment until it is upturned on appeal. See also the cases of: (1) Kamalu v. Umunna (1999) 5NWLR (Pt.505) p.321; (2) Nwanwata v. Esumei (1998) 8NWLR (Pt.563) p.650; (3) Babatunde v. Olatunji (2000) 2SC p.9; (4) Oguigo v. Oguigo (2001) 1WRN p.131 and (5) Obineche v. Akusobi (2010) 12NWLR (Pt.1208) p.383.
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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)|

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