CORAM
PARTIES
UNITED BANK FOR AFRICA
ALHAJI ISIYAKU YAKUBU
AREA(S) OF LAW
SUMMARY OF FACTS
The Respondent commenced this action at the Adamawa State High Court as Plaintiff, against the Appellant as Defendant for wrongful detention of his original Customary Certificate of Occupancy No YLG 000842. The lower court delivered its Judgment in favour of the Respondent. Dissatisfied, the Appellant filed his Notice of Appeal. The Respondent filed a Preliminary Objection on grounds that the Appellant did not plead the defence (if any) of estoppel per res judicata as required by the Rules governing pleadings and Order 25 Rule 4(i) of the Adamawa State High Court (Civil Procedure) Rules 2013, and the issue is being raised for the first time in this appeal, without the leave of this court thus incompetent.
HELD
Preliminary Objection Dismissed, Appeal Allowed, Cross Appeal Dismissed
ISSUES
MAIN APPEAL Whether the Suit No. ADSY/52/2019 filed and tried before the lower court was competent based on the doctrine of Res Judicata or not CROSS APPEAL Whether the Trial Judge was not wrong to have refused the grant of General Damages in favour of the Cross – Appellant
RATIONES DECIDENDI
PRELIMINARY OBJECTION – WHETHER OR NOT A PRELIMINARY OBJECTION IS AN APPROPRIATE STEP IN CHALLENGING SOME GROUNDS OF APPEAL
“Preliminary Objection is an inappropriate step to an appeal where only some of the grounds are being challenged. This is because the essence of a Preliminary Objection is to render the entire appeal incompetent, whereas raising objection to some grounds of appeal only, does not render the appeal incompetent. In the case of Bank of Industry Ltd v. Awojugbagbe Light Industries Ltd (2018) LPELR-43812(SC) 7-8 Paras. B-C the Supreme Court held as follows:
“This Preliminary Objection is against the hearing of this suit. In Isah v. INEC & 3 Ors (2014) 1-2 SC (Pt. IV) Page 101. I explained Preliminary Objections and when to file them and when not to file them. I said that: “A Preliminary Objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. The purpose of a Preliminary Objection is to convince the Court that the appeal is fundamentally defective in which case the hearing of the appeal comes to an end if found to be correct. Where a Preliminary Objection would not be the appropriate process to object or show to the Court the defects in processes before it, a motion on notice filed complaining about a few grounds or defects would suffice. See Dakolo & 2 Ors v. Dakolo & 3 Ors (2011) 6 – 7 SC (Pt.iii) p.104 Obatoyinbo v. Oshatoba (1996) 5 NWLR (Pt.450) p.531.” Both sides are ad idem that the Notice of Appeal filed in the Court of Appeal was signed in the name of a Law Firm, Oluwole Aluko & Co. and so fundamentally defective, consequently the judgment delivered by the Court of Appeal was given without jurisdiction and a nullity. The Preliminary Objection has achieved its purpose as the hearing of this appeal comes to an end, as both sides are correct.”
Furthermore, in Lumatron (Nig) Ltd & Anor v. FCMB (2016) LPELR-41409 (CA) 4, Paras. B-F it was held thus:-
“I should point out before a consideration of the merit or otherwise of the objection, that the current position of the law on objection(s) to some grounds of an appeal leaving out other/s which is/are capable of sustaining the appeal, is that a motion on notice is separately filed to challenge the competence of such grounds and not to raise preliminary objection by way of notice of Preliminary notice of objection or raising and arguing the objection in the Respondent’s brief of argument. The Notice of Preliminary Objection or an objection can only properly be raised in the Respondent’s brief, against the hearing of an appeal and not against some grounds only. See: Dada v. Dosunmu (2006) 18 NWLR (Pt. 1010) 134; Odunukwe v. Ofomata (2010) 8 NWLR (Pt. 1225) 404; N.N.D.C. v. Famfa Oil Limited (2012) 5-7 M.J.S.C (Pt. 1) 1 at 29.”
ESTOPPEL PER RES JUDICATA – WHEN DOES ESTOPPEL PER RES JUDICATA ARISE?
“Estoppel per res judicata or estoppel of record arises where an 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 issue comes directly in question in subsequent proceedings between the parties or their privies. The principle of res judicata effectively precludes a party to an action or his privies from disputing 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 the same issues. See Igwego Vs Ezeugo (1992) 6 NWLR (Pt.249) 561, Osunrinde V. Ajamogun (1992) 6 NWLR (Pt.246) 156.”
PLEA OF RES JUDICATA – CONDITIONS PRECEDENT TO A SUCCESSFUL PLEA OF RES JUDICATA
“The conditions precedent to a successful plea of res judicata are as follows:
There must be an adjudication of the issues joined by the parties;
(a)The parties or the privies as the case may be must be the same in the present case as in the previous case.
(b)The issue and subject matter must be the same in the previous case as in the present case.
(c)The adjudication on the previous case must have been by a Court of competent jurisdiction.
(d)The previous decision must have finally decided the issues between the parties, that is the rights of the parties must have been finally determined.”
See Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499 at 531 Paras D-F and Honda Place Ltd. v. Globe Motors Ltd. (2005) 14 NWLR (Pt. 945) 273”.
RES JUDICATA – PRINCIPLE OF RES JUDICATA
“The law is further well entrenched in Sections 169 and 173 of the Evidence Act, 2011 as well as in plethora of cases that an existence of a binding judgment between parties or their privies will constitute res judicata, which legal effect is to operate as an estoppel or a bar to further litigious proceedings between the same parties. As a general rule, once one or more of any such issues have been distinctly raised in a cause of action and determined between the same parties in a Court of competent jurisdiction, neither party, his privies, agents servants is allowed to re-open or re-litigate any of such issues all over again in another action between the parties, agents or privies… This is so because where a cause of action or issue has been determined in a previous issue between the same parties, the said parties are, as a matter of public policy and in the interest of common good to the effect that there should be an end to litigation, estopped from bringing a fresh-action in any Court in the same cause on issues already pronounced upon by a Court of competent jurisdiction in the previous action. This in a nut-shell is the principle of res judicata. See further the cases of Agbaje v. INEC (2016) 4 NWLR (Pt. 1501 151 at 167 Paras. A-E and Ajiboye v. Ishola (2006) 13 NWLR (Pt. 998) 628 at 643-645, Paras. H-A.”
AWARD OF DAMAGES – PURPOSE OF AN AWARD OF DAMAGES
The purpose of an award of damages is to compensate the plaintiff for the damage loss and injury suffered as a result of the act or inaction or negligence of the defendants. The guiding principle in the award of damages is a captioned in the latin maxim ‘restituto in intergrum’ which is that a party who has been damnified by the act of which is in issue must be put in a position in which he would have been at the status quo ante had he not been so injured and suffered the damage. Award of damages either special or general is not made as a matter of course or on speculation or sentiment, but on sound and solid legal principles.
It is not made out of sympathy borne out of extraneous consideration but on legal evidence of probative value adduced in root of an actionable wrong or injury. See further on this Union Bank v. Innoson (Nig.) Ltd (2017) LPELR-4272 (CA). Where a party claims damages for loss of profit or business as with the Cross-Appellant in the instant case, then there must be facts in the pleadings and evidence on the issue. Without such information, the Court cannot help the party.
AWARD OF DOUBLE COMPENSATION – POSITION OF THE LAW ON THE AWARD OF DOUBLE COMPENSATION
“In the case of U.T.C. (Nig.) Plc v. Phillips (2012) 6 NWLR (Pt. 1295) 136 at 184 Paras. A-B, it was held thus:-
“The law frowns at award of double compensation. It is the law that where a party had been compensated fully under specific claims, it would be most inappropriate to compensate him again under general damages as that would amount to double compensation. It is an established principle, that if a plaintiff recovers in full under special damages, he cannot be entitled to general damages for that would amount to double compensation. In the instant case, the N1,000,000.00 general damages awarded in favour of the respondent after he had been awarded N12,000,000 as special damages was double compensation and is not justified.”
CASES CITED
Not Available
STATUTES REFERRED TO
Evidence Act, 2011|