Previous Court Decision and the Plea of Res Judicata

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 1st day of July, 2022

Before Their Lordships

Kudirat Motonmori Olatokunbo Kekere-Ekun

John Inyang Okoro

Abdu Aboki

Ibrahim Mohammed Musa Saulawa

Tijjani Abubakar

Justices, Supreme Court

Appeal No: SC/253/2010

Between

1.   NTOE PATRICK A. O. EDEM

2.  EDEM OKON AYITO

3.   MR OMIN E. AGBOR                                      APPELLANTS

4.   ASSIM O. A. ITA

     (For themselves and on behalf of Kasuk Qua Clans, Calabar)

                      And

1.    PRINCE EYO ISHIE

2.   CHIEF EKPENYONG AKPANIKA

3.    MR ETA EYO USO                                               RESPONDENTS

4.    MR BASSEY EKANEM

      (For themselves and on behalf of Ikot Ishie and/or Ishie Clan Council)

(Lead Judgement delivered by Honourable Tijjani Abubakar, JSC)

Facts

The Appellants as Plaintiffs commenced Suit No. C/88/76 at the High Court of Cross Rivers State against the Respondents (then Defendants) in a representative capacity, seeking declaration of title to land, forfeiture and damages for trespass. Judgement was entered in favour of the Appellants, whereupon the Respondents appealed to the Court of Appeal in Appeal No. CA/E/210/96, raising the issue of res judicata predicated on two judgements of the then Supreme Court, Calabar (a court of co-ordinate jurisdiction with the present High Court). The Court of Appeal allowed the appeal and set aside the judgement of the trial court, holding that two earlier decisions delivered on 16th October, 1918 and 16th June, 1925 which were tendered as Exhibits R and S, respectively, sustained the Respondents’ plea of res judicata.

Further to the above, the Appellants appealed to this Supreme Court in Appeal No. SC/92/2002. At the Supreme Court, the Appellants attempted to amend their Notice of Appeal to raise a fresh issue challenging the existence of Exhibits R and S, alleging that they were forged. The application to raise a fresh issue on appeal was refused, and the appeal proceeded to hearing. However, before the Supreme Court could deliver its judgement, the Appellants commenced another suit at the High Court in Suit No. HC/96/2003, wherein they contended that the purported judgement in Exhibit S was a forgery, inexistent, null and void and of no effect. They also contended that, the Respondents obtained the judgement in CA/E/210/96 by fraud.

In reaction to HC/96/2003, the Respondents filed a Preliminary Objection contending that the court lacked jurisdiction to entertain the suit because the said Exhibit S (judgement of Justice A. Webber) was the subject of SC/92/2002, pending at the Supreme Court. While the Preliminary Objection was still pending, the Supreme Court delivered judgement in SC/92/2002 dismissing the Appellant’s appeal on 17th June, 2005. Subsequently, on 3rd August, 2007, the trial court upheld the Preliminary Objection in HC/96/2003, and dismissed the Appellants’ suit. The Appellants’ appeal to the Court of Appeal was also dismissed, consequent upon which the Appellant brought the instant appeal.

Issues for Determination

The Supreme Court determined the following two issues raised by the Appellants: 

(i) Whether the court below, with respect, appreciated the case of the Appellants, which it was called upon to decide when it sustained the Respondents’ obligation that the doctrine of res judicata was applicable to this matter?

(ii) Whether the Appellants, just like every other litigant, can challenge a court judgement obtained by fraud, and/or upon reliance on a non-existing document/judgement?

Arguments

Arguing both issues together, the Appellants contended that a judgement obtained by fraud or collusion is void, and cannot sustain a plea of estoppel. Relying on the decision in VULCAN GASES LTD v GESELLSCHAFT FUR INDUSTRIES (2009) 9 NWLR (Pt. 719) 610 at 668, counsel contended further that challenging the judgement by a fresh action is allowed by law. The Appellants also contended the lower court did not allow them an opportunity to prove that the judgement was obtained by fraud, by calling the Registrar and the archivist to prove the non-existence of the judgement. The Appellants argued further that the lower court ought to have distinguished between a genuine document tendered which may no longer be challenged, and a fraudulent one tendered as decision of court. The Appellants also submitted that even if all the conditions of estoppel per rem judicatem were present in this case, the Appellants will still be entitled to show that the decision was obtained by fraud. Lastly, the Appellants argued that the judgement of the lower court authenticating the fraudulent document, occasioned miscarriage of justice.

On their part, the Respondents argued that the issue of fabrication, forgery, existence or authenticity of Exhibits R and S had already been determined with finality by the Supreme Court in SC/92/2002, and that the principle of res judicata rightly applied. Counsel for the Respondents relied on AYENI v ELEPO (2007) ALL FWLR (Pt. 383) 71 and submitted that parties are not only defined in terms of those on record, but include privies to the parties on record and those who may be interested in the outcome of the case, or ought to have been made parties. The Respondents noted that the 1st and 3rd Appellant in SC/92/2002, were also the 1st and 4th Plaintiff in Suit No. HC/96/2003. Counsel argued that the lower court did not only sustain the plea of res judicata, but also gave effect to the finality of the Supreme Court.

Court’s Judgement and Rationale

In resolving both issues, the Supreme Court considered its decision in ABIOLA & SONS BOTTLING CO. LTD v 7UP BOTTLING CO. LTD (2012) LPELR-9279(SC) wherein it held that a matter once judicially decided is finally settled, and that for the doctrine of res judicata to apply, the parties and the subject-matter must be the same. The court also noted its earlier decision in TORIOLA & ANOR v WILLIAMS (1982) LPELR-3258 (SC) where it held that estoppel per rem judicata is a rule of evidence whereby a party or his privy is precluded from disputing in subsequent proceedings, a matter which had been adjudicated upon previously by a competent court between him and his opponent.

In this instance, Their Lordships observed that the parties and issues are the same as in SC/92/2002, and held that where a court of competent jurisdiction has settled with finality the issues between parties, none of the parties or their privies has the right to re-litigate the issue by a fresh action, as same is res judicata. 

The court also disagreed with the Appellants’ argument that the subject-matter is C/88/76 which gave rise to SC/92/2002, is not the same with the subject-matter in HC/96/2003 which resulted in the instant appeal. The court held that in its judgement in SC/92/2002, one of the issues it determined was “whether the learned Justices of the Court of Appeal were right in treating exhibits R and S tendered by the 1st Defendant as evidence (offer) establishing res judicata in their favour”. The court also observed that in SC/92/2002, it gave an opinion as to whether or not Exhibits R and S were forged. HC/96/2003 and the instant appeal therefore, amount to re-litigating a matter that had been heard and determined to finality, which should not be encouraged as a cardinal principle of public policy. There must be an end to litigation.

The Supreme Court further observed that the instant appeal arose from two concurrent findings of fact by the courts below, and the Appellants did not advance any convincing reason to warrant an interference with such findings of fact by the trial and lower courts. The court held that to interfere with concurrent findings of fact, the circumstances must be such that the facts are patently erroneous, and it would be travesty of justice to allow the findings to remain.

As an aside, the Supreme Court observed by that the Appellants sought to unnecessarily engage the Respondents by commencing frivolous, vexatious and irritating claims. The court admonished that counsel must not surrender to the wish of their client by bringing needless matters, and that counsel must not act as willing tools in the hands of litigants, as such actions inflict damage on the dignity of the legal profession.

On the whole, the Supreme Court resolved the two issues against the Appellants, and upheld the decision of the Court of Appeal affirming the decision of the High Court. Costs in the sum of N2 million was awarded against the Appellants.

Appeal Dismissed.

Representation

Solomon E. Umoh, SAN with Santos O. Erajab Esq., U.J. Adam, Esq. and E.B. Okon, Esq.  for the Appellants.

Edidiong O. Usungura, Esq. for the Respondents.

No representation for the 2nd Respondent. 

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)