Application of Plea of Res Judicata


CITATION: (2022) LPELR-57036(SC)

In the Supreme Court of Nigeria


Suit No: SC.205/2010

Before Their Lordships:MARY UKAEGO PETER-ODILI Justice of the Supreme Court EJEMBI EKO Justice of the Supreme Court MOHAMMED LAWAL GARBA Justice of the Supreme Court IBRAHIM MOHAMMED MUSA SAULAWA Justice of the Supreme Court TIJJANI ABUBAKAR Justice of the Supreme Court





The appellants as the plaintiffs commenced an action at the Federal High Court seeking various declaratory reliefs and orders. There were six defendants to the suit at its inception. That is the 2nd and 4th respondents as well as 2nd appellant and 4th, 5th and 6th respondents at the trial Court.The 1st defendant filed a defence to the suit while the other defendants filed no defence.While the trial was on-going, the 1st respondent declared the 2nd respondent (1st defendant) a distressed bank and bought it over for N1.00 for the purpose of its revitalisation. It then appointed 3rd respondent as its Manager for the purpose of this revitalisation.Following this development, the appellants joined the 3rd respondent and 1st respondent as 7th and 8th defendants to the suit respectively. Subsequently, the 3rd and 1st respondents were served with the process of court by courier services as ordered by the court, but did not appear in court.The trial judge delivered judgment and granted the appellants’ reliefs.Subsequently, the appellants took steps to enforce the judgment and it was at this stage that the respondents filed applications to set aside the judgment and/or declare it a nullity.The learned trial judge however dismissed the said applications in its ruling.Dissatisfied with the judgment entered in favour of the appellant, the 1st, 2nd and 3rd respondents lodged an appeal at the Court of Appeal.The Court of Appeal in allowing the appeal stated that the proceedings in the case under appeal should have abated immediately judgment in Appeal No. CA/E/80/88 was delivered on May 4, 1990 and especially when the Appeal to the Supreme Court in Appeal No. SC.46/93 had been abandoned and dismissed on February 22, 1995.The Court of Appeal held that the appeal of the respondents which raised the defence of res judicata was sustained. That thus, the proceedings and judgment by the Federal High Court were incompetent and same was accordingly struck out. The Court further held that the only valid judgment subsisting was that in Appeal No.CA/E/80/88.Dissatisfied with the judgment of the Court below, the appellants filed an appeal Supreme Court.


The Supreme Court determined the appeal on the following issues:1. Whether the learned Justices of the lower Court were right in relying on the principles of Res Judicata to strike out the case of the appellants.2. Whether the lower Court was right to have interfered with the findings of the trial Court and arrived at the conclusion that the judgment of the trial Court was shrouded in secrecy because the 2nd respondent was not given the opportunity to cross-examine PW2 and that the 1st respondent was not duly served with the writ of summons.3. Whether the 1st respondent is enjoined in law to formulate two issues from one Ground of Appeal.


The learned counsel for the appellants submitted that the 2nd respondent did not specifically plead the principle of res judicata in its amended statement of defence.That the 2nd respondent did not place before the trial Court any material to enable the Court consider the plea of res judicata.He further submitted that having regard to the parties, issues and the previous suit that is suit no. FHC/CA/3/85 upon which Suit No. CA/E/80/88 was decided. The principle of res judicata was not applicable. He cited the case of OSHODI V. EYIFUNMI (2000) 13 NWLR (PT. 684) 298 AT 326; (2000) LPELR-2805(SC).Counsel argued that it was wrong for the 1st respondent to distill two issues from one ground of appeal and so the said issues should be struck out.


Learned counsel for the 1st respondent submitted that the Court below never held as contended by the appellants that two issues could be formulated from one ground of appeal and that this is supported by the record. He cited the case of COKER V. U.B.A (1997) 47 LRCN 455.Counsel for the 2nd and 3rd respondents contended that the principle of res judicata applied in the instant case and so the Court of Appeal was correct to have held so. He cited the case of AYENI V. ELEPO (2007) ALL FWLR (PT. 383) 71.Counsel for the 4th respondent equally contended that the plea of res judicata was adequately raised by the 2nd respondent in the statement of defence.


In resolving issue 1, the Court gave a foundation of facts of how the 1st appellant had earlier on sued the 2nd respondent at the Federal High Court in suit no. FHC/CA/CS/3/83. The 2nd respondent equally filed a counter claim. That in the said suit, the trial judge entered judgment in favour of the 1st appellant while the counter claim of the 2nd respondent was held non suited. Dissatisfied with the said judgment, the 2nd respondent appealed to the Court of Appeal in Appeal No. CA/E/80/83.
At the Court of Appeal, the said appeal was allowed and consequently, the claims of the 1st appellant were dismissed while the counter claim of the 2nd respondent was granted. The 1st appellant being dissatisfied with the judgment of the Court of Appeal, lodged an appeal at the Supreme Court in No. SC/46/1993 which was however dismissed by the Supreme Court the effect being that the judgment of the Court below in Appeal No.CA/E/80/83 remained binding and subsisting.
The Court then pointed that the judgment of the Court of Appeal in No. CA/E/80/83 is that which constituted the basis of the respondents’ plea of res judicata at the Federal Court in the subsequent suit no. FHC/CA/4/87, which is the subject of the instant appeal.
The Court relying on the case of ODUTOLA V. ODERINDE & ORS (2004) LPELR – 2258(SC) stated the ingredients for the application of the plea of res judicata. In the said case, Per KUTIGI, J.S.C at P.10, held thus: “It is settled law that to sustain a plea of ‘res judicata’, the party pleading it must satisfy the following conditionalities, to wit: 1. The parties (or their privies as the case may be) the same in the present case as in the previous case.2. That the issue and subject matter are the same in the previous suit as in the present suit.3. That the adjudication in the previous case must have been given by a Court of competent jurisdiction.4. That the previous decision must have finally decided the issues between the parties.”On the first ingredient, the Court explained that the parties in Appeal No. CA/E/80/83 wherein the Court below gave a binding and subsisting decision on the merit, are the same, as those in suit no. FHC/CA/4/87. That the parties on record, were the present 2nd respondent and the extant 1st appellant while in the present appeal, both the appellant and respondent in the earlier appeal are still parties but now designated as 1st appellant and 2nd respondent respectively. The 4th respondent who was the managing Director/Chief Executive Officer of the 2nd respondent when it was still a going concern was in fact impleaded as the 2nd defendant in the earlier proceeding. The 3rd defendant in the earlier case was again made the 3rd defendant in suit no. FHC/CA/4/87. On his part, the 4th defendant in that case was sued on the 5th respondent in the subsequent suit.

The Court further stated that the remainder of the parties, that is, the 1st and 3rd respondents are privies to the parties in the earlier appeal, particularly the 2nd respondent (who was the appellant in appeal number CA/E/80/88) and accordingly deemed at law to have been parties to that proceeding.
The Court held that the judgment delivered in appeal number CA/E/80/88 is binding not only on the parties on record in that appeal but also on their privies now joined in the present appeal. See the case of AYENI V. ELEPO (2007) ALL FWLR (PT.383) 71.

On the second ingredient, the Court explained that the issue and subject matter in the previous suit are the same as those in the present suit. That the cardinal issue in suit no. FHC/CA/4/87 which were admitted by the appellants’ centered on the operations and or maintenance of the appellants’ account with the 2nd respondent, was one of the issues raised in suit no. FHC/CA/3/85.

On the third ingredient, the Court stated that the previous Appeal No. CA/E/80/88 was given by a Court of competent jurisdiction. That the Court of Appeal by virtue of SECTION 240 OF THE CONSTITUTION conferred with the jurisdiction to the exclusion of every other Court, to hear and determine appeals from decisions of the National Industrial Court, High Court of a State and that of the Federal Capital Territory, Federal High Court, Sharia Court of Appeal either of a State or of the Federal Capital Territory and Customary Court of Appeal either of a State or of the Federal Capital Territory.
Furthermore, the Court stated that the decision appealed against at the Court of Appeal in Appeal No. CA/E/80/88, emanated from the Federal High Court and in hearing that appeal, the Court below rightly assumed jurisdiction.
Lastly, on the fourth ingredient, the Court stated that the decision in Appeal No. CA/E/80/88 finally decided the issue in controversy between the parties subsequently re-litigated by the appellants. Thus, the Court held that all the conditions for the application of the plea of res judicata were satisfied and thus the Court of Appeal rightly applied same.

In response to the argument of the appellants that the res judicata was not pleaded by the 2nd respondent, the Court held same as incorrect and pointed that the 2nd respondent as the 1st defendant at the trial Court filed an amended statement of defence in which the 2nd respondent pleaded emphatically and specifically the defence of res judicata.
On issue 2, the Court relying on the records, stated that on August 5, 1997 when PW2 had concluded his evidence in chief, the trial Court adjourned the case to September 29, 1997 for addresses instead of adjourning proceedings to that date or any other for the respondents to cross-examine PW2 and ordering that hearing notices be served on them in the wake of their absence from Court on the day that PW2 testified in chief and thus aligned with the position of the Court of Appeal that the 2nd respondent was given opportunity to cross-examine PW2 or testify before the matter was adjourned for address.
On issues 3, the Court explained that the said issue had become academic and being an academic issue, the Court does not have jurisdiction to pronounce on same. See Dahiru and Anor V. APC & Ors (2016) LPELR-42089 (SC)HELDThe appeal was unanimously dismissed.

AYOOLUWA ODERINDE AND ESTHER JESUDUNNO LONGEOKOGBUJE ODION – For Respondent(s)EDIDIONG USUNGURUA WITH HIM, -For 1st Respondent(s)ITOTE DAMISA SAM-JOHN USANI, MARCEL EGBININEAND OGAKU KANU AGABI – For 2nd & 3rd Respondent(s)4th respondent absent though served on 16/11/2021

Compiled by LawPavilion


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