IN THE COURT OF APPEAL OF NIGERIA
ON FRIDAY, THE 4TH DAY OF MARCH, 2016
PETKEV NIG. LIMITED
MR. PETER JAMES OBINWANNE Appellant(s)
ELDER OBUMANYI OGBOGU
FEDERAL HOUSING AUTHORITY Respondent(s)
CHINWE EUGENIA IYIZOBA J.C.A.: (Delivering the Leading Judgment):
This is an appeal against the Ruling of Adah J. of the Federal High Court, Ikeja Judicial Division, Lagos in Suit No. FHC/IKJ/CS/72/2011, holding that the preliminary objection raised by the Appellants was a demurrer which is not allowed and striking out same. The 2nd Respondent herein as plaintiff in the lower Court claimed against the Defendants/Respondents as follows:
i. A declaration that the act of the 2nd Defendant in putting materials and constructing structures on Plot No. 1833A, Along Al Close, 7th Avenue, Festac Town, Lagos belonging to the Plaintiff amounts to trespass.
ii. A declaration that the purported allotment of the said land to the 2nd and 3rd Defendants amount to on infringement on the title of the plaintiff and thereof are illegal and null and void.
iii. An order of the Court nullifying the purported allocation to the 2nd and 3rd Defendants.
iv. A declaration that the judgment reached at the Federal High Court in Suit NO.FHC/L/CS/218/2007 does not in any way confer legal title to the 2nd and 3rd Defendants.
v. A declaration that the title to the land is vested in the Plaintiff.
vi. An order of Court granting possession and upholding the title to Plot NO.1 833A, Along Al Close, 7th Avenue, Festac Town, Lagos to the Plaintiff.
vii. An order of perpetual injunction restraining the 1st Defendant, its proxies, agents, representatives or anybody claiming or acting through or on behalf of the 1st Defendant from recognizing, allotting, transferring, assigning, alienating in any manner whatsoever any portion or interest in the said Plaintiff's land.
viii. An order of perpetual injunction restraining the 2nd and 3rd Defendants, its proxies, agents, representatives or anybody claiming or acting through or on behalf of the 2nd and 3rd Defendants from erecting, constructing or in any way transferring, or interfering with the ownership rights of the Plaintiff.
ix. An order of perpetual injunction restraining the 2nd and 3rd Defendants, its proxies, agents, representatives or anybody claiming or acting through or on behalf of the 2nd and 3rd Defendants from any further acts of trespass on the land.
x. Damages to the tune of Ten Million Naira only (N10,000,000.00) against the 2nd and 3rd Defendants for trespass.
After the Plaintiff had filed his processes to wit: writ of summons, statement of claim, list of witnesses, witness statements on oath, and fist of documents; the Defendants entered a memorandum of appearance and then filed a preliminary objection challenging the jurisdiction of the Court to hear the case. The Court heard the application and at the end struck it out holding that the objection is a demurrer which had been abolished; and that it should have been raised in the pleadings. Dissatisfied with the ruling, the 1st and 2nd Appellants appealed against it by Notice of appeal containing two grounds of appeal. out of the two grounds of appeal the Appellants formulated two issues as follows:
1. Whether in the circumstances of this case, the trial judge was right to hold that the 2nd and 3rd Defendants notice of preliminary objection was a demurrer and refused to decide the issue of jurisdiction raised before the Court.
2. Whether under Section 241 of the 1999 Constitution of the Federal Republic of Nigeria, a decision of HonourableýJustice Sharkarho of the Federal High Court in Suit NO.FHC/L/CS/218/2007 can be subjected to another Federal High Court for a review or for any declaration whatsoever.
The Respondent in his brief adopted the issues formulated by the Appellants.
APPELLANTS' ARGUMENT :
Learned counsel for the Appellants in his brief submitted that the 2nd and 3rd Defendants/Appellants challenged the jurisdiction of the Lower Court to entertain the matter upon three grounds namely:
i. That the present Suit (i.e. Suit NO. FHC/IKJ/CS/72/2011) is an abuse of Court process.
ii. That the judgment of Honouroble Justice J.E. Sharkarho in Suit NO. FHC/L/CS/218/2007 which decided all the issues which the Plaintiff seeks to re-open in suit NO.FHC/IKJ/CS/72/2011, being a decision between the parties on merit can only be reviewed by the Appeal Court.
iii. That the judgment in SuitýNo.FHC/L/CS/218/2007 estopped the Plaintiff from bringing a fresh action in any Court in the same cause and issue already pronounced upon by a Court of competent jurisdiction in the previous action.
Counsel submitted that the preliminary objection was not raised as a special defence to the action wherein they will be required to comply with Order 16 of the Federal High Court Civil Procedure Rules 2009. Counsel contended that there are features in the Plaintiff's claims which robbed the Court of jurisdiction to entertain the matter. He relied on MADUKOLU v. NKEMDILI (1962) SCHLR 341. Relying further on the cases of ATTORNEY GENERAL OF KWARA STATE VS OLAWALE (1993) 1 NWLR (pt. 272) at 677. NIGERIA DEPOSIT INSURANCE CORPORATION VS CENTRAL BANK OF NIGERIA & ANOR (2002) 7 NWLR (pt. 766) 272 and EGBUE VS ARAKA (1988) 3 NWLR (pt. 84) 598, counsel submitted that it is settled law that a preliminary objection to the jurisdiction of a Court is not a demurrer proceedings. He further submitted that the learned trial judge ought to have decided the issue of whether the mentioned features robbed the Court of jurisdiction or not and not to dismiss the preliminary objection as a demurrer. Counsel argued that once, issue of jurisdiction is raised in a matter, it must be determined first before taking further step in the matter.
Learned counsel further submitted that by Section 241 of the 1999 Constitution of the Federal Republic of Nigeria, appeals lie from the Federal High Court to the Court of Appeal. Counsel argued that Part of the claim of the plaintiff/respondent in the lower Court was for a declaration that the judgment reached at the Federal High Court in suit No.FHC/L/CS/L/218/2007 does not in anyway confer legal title to the 2nd and 3rd Defendants/Appellants.
This, he argued amounted to a review and/or on appeal. He contended that a person whose fundamental right to property pursuant to Section 43 and 44 of the 1999 Constitution of the Federal Republic of Nigeria has been enforced by the Court cannot be sued for trespass in respect of the some property. Counsel urged the Court to allow the appeal and to dismiss the 2nd Respondent's claims for want of jurisdiction.
Learned counsel for the 2nd Respondent in his brief submitted that the Appellants as second & third Defendants at the Federal High Court in Suit No. FHC/IKJ/L/CS/72/2011, rather than file their Defence to the aforementioned suit opted to raise a preliminary objection which basically bothers on estoppel per rem judicata.
Counsel submitted that a perusal of the grounds of the preliminary objection of the Appellants show that the gravamen of the objection is that the Federal High Court had earlier on in another suit adjudicated on the same subject matter of the present suit and that the preliminary of objection is consequently based on Estoppel per rem judicata. Counsel contended that estoppel per rem judicata is a rule of evidence which has to be specifically pleaded and proved as a defence to a suit. It cannot be invoked by way of preliminary objection. Counsel relied on the cases of ILONA v. IDAKUQ (2003) (12) NJSC at 35 and Oshodi v. Eyifunmi (2000) (13) NWLR Pt 684 at 326.
Learned counsel further submitted that Order 13, Rules 2(1) and 6(1) (3) of the Federal High Court Civil Procedure Rules 2009, make it mandatory for the Appellants to file their Defence first before they can successfully invoke the doctrine of Estoppel per rem judicata.
Counsel submitted that their preliminary objection is misconceived and was rightly dismissed by the lower Court. Counsel finally submitted that Order 16, Rules (1) and (2) of the Federal High Court Rules expressly prohibit demurrer and making pleading mandatory. The Appellants having failed to file their pleadings before raising the preliminary objection are in breach of the Rules of the Court. He urged the Court to dismiss the appeal as locking in merit and uphold the ruling of the lower Court.
Order 16 of the Federal High Court (Civil Procedure) Rules 2009 provides:
1. No demurrer shall be allowed. Points of law may be raised by pleadings.
2. (1) A party shall be entitled to raise by his pleadings any point of law, and any point so raised shall be disposed of by the Judge who tries the cause at or after the trial.
(2) A point of law so raised may, by consent of the parties, or by order of the Court or a Judge in chambers on the application of either party, be set down for hearing and be disposed of at any time before the trial.
Dismissal of action.
3. If in the opinion of the Court or a Judge in chambers the decision on the point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counter-claim, or reply therein, the Court or ,Judge in Chambers may thereupon dismiss the action or make such order therein as may be just."
Interpreting a similar provision in the High Court Civil Procedure Rules of Lagos
State, the Supreme Court in the case of Disu V. Ajilowura (2006) 14 NWLP (Pt. 1000) 783 held:
"There is no doubt, demurrer proceeding have been abolished in view of the clear provision of Order 23, Rule 1 of the High Court Civil Procedure Rules of Lagos State. I think it is settled that the issue of locus standi or jurisdiction being a point of law cannot properly be raised under Order 23, Rule 4, as was done by the Appellants in this case. However, the issue may be raised under Rules 2 & 3 by pleadings."
Learned counsel to the Appellant had submitted that the preliminary objection was not raised as a special defence to the action wherein they will be required to comply with Order 16 of the Federal High Court Civil Procedure Rules 2009, but that there are features in the Plaintiff's claims which robbed the Court of jurisdiction to entertain the matter. It is not in doubt that there is a distinction between raising the issue of jurisdiction and a demurrer. The rule is that the jurisdiction of a Court to entertain a suit is the lifeline of all trials and so can be raised at any stage of the proceedings, even on appeal: Petrojessica Enterprises Ltd v. Leventis Technical Co. Ltd (1992) 5 NWLR (pt. 244) 675 @ 693. If the Appellants' preliminary objection was indeed one on the jurisdiction of the Court to entertain the suit, it would be in order and there would be no need to comply with Order 16 of the Federal High Court (Civil Procedure) Rules 2009 by first filing the Statement of defence. In the case of Ajayi V. Adebiyi & Ors (2012) LPELR-781 (SC), Adekeye JSC observed:
"It is therefore noteworthy that an application or preliminary objection seeking an order to strike out a suit for being incompetent on the ground of absence of jurisdiction is not a demurrer and therefore can be filed and taken even before the defendant files his statement of defence or without the defendant filing a statement of defence. The reason being that issue of jurisdiction can be raised at any time"
As to what amounts to "jurisdiction" in this context, the judgment of the Supreme Court in Egbue v. Araka (Supra) is illuminating.
The SC observed:
"When a party pleads in objection that the writ of summons and the statement of claim be struck out on the ground that the High Court has no jurisdiction to hear and determine the suit, he means that:-
1. The matter or subject matter of the action is not one of the matters in respect of which jurisdiction has been conferred on the High Court and
2. That the matter occurred outside the territorial jurisdiction of the Court.
Jurisdiction in this respect is tantamount to competence and competence has a wide meaning. It relates to the composition of the Court, the territorial jurisdiction of the Court and the substantial jurisdiction of the Court."
All the cases referred to by learned counsel to the Appellant refer to jurisdiction in the sense adumbrated above. The Appellants had in their process stated the three grounds on which they were challenging the jurisdiction of the lower Court namely:
i. That the present Suit (i.e. Suit NO.FHC/IKJ/CS/72/2011) is an abuse of Court process.
ii. That the judgment of Honouroble Justice J.E. Sharkarho in Suit No.FHC/L/CS/218/2007 which decided all the issues which the plaintiff seeks to re-open in suit NO.FHC/IKJ/CS/72/2011, being a decision between the parties on merit can only be reviewed by the Appeal Court.
iii. That the judgment in Suit No.FHC/L/CS/218/2007 estopped the Plaintiff from bringing a fresh action in any Court in the some cause and issue already pronounced upon by a Court of competent jurisdiction in the previous action.
It is more than apparent that this is not a case of challenge of the jurisdiction of the Court as set out in Egbue's case. Learned counsel for the Respondent is right that a perusal of the grounds of the preliminary objection of the Appellants show that the objection is that the Federal High Court had earlier in another suit adjudicated on the some subject matter as the present suit and that the preliminary objection is consequently based on Estoppel per rem judicata. The question therefore is how do the Appellants expect the lower Court to decide whether estoppel per rem judicata is applicable without filing their statement of defence to give details of the parties, subject matter and issues in the two cases? In the case of Odi v. Iyala (2004) 8 NWLR (pt. 875) 293, the SC per Tobi JSC held that the law is elementary that estoppels per rem judicata is a special defence available to a defendant which must be specifically pleaded in the statement of defence. The Appellants come by way of demurrer and it is unacceptable as demurrers have been abolished. They should have complied with Order 16 of the Federal High Court (Civil Procedure) Rules 2009. Further, Order 13, Rule 2 (1) provides:
"(1) Subject to Sub-rule (2) of this Rule, a defendant who enters appearance and intends to defend the action shall, unless the Court gives leave to the contrary serve:
(a) A statement of defence which may include any preliminary objection he wishes to raise to the plaintiff's action;
(b) List of witnesses to be called at the trial;
(c) Written statement on oath of the witnesses:
(d) Copies of every document to be relied on at the trial:
(e) List of non-documentary exhibits at the time he files his memorandum of appearance"
The provisions of the Rules are quite clear. The Appellants should have complied with these Rules except where leave is given by the Court to the contrary. They should have filed their statement of defence and raised the preliminary objection therein. The learned trial judge was right in holding that the preliminary objection was truly a demurrer not allowed by the Rules of the Court and in striking same out. This appeal lacks merit and is hereby dismissed with N30,000.00 costs in favour of the Respondents.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading the judgment just delivered by my learned brother, CHINWE EUGENIA IYIZOBA, JCA in advance and I am in complete agreement with the reasoning and conclusion arrived at in the lead judgment.
In the case of MINISTER OF WORKS & HOUSING V. SHITTU (2008) ALL FWIR (PT. 401) 847 AT 863-864, the Court set out the conditions precedent to a Court's exercise of jurisdiction. It held as follows:
"A Court is generally competent to adjudicate over a matter only when all the conditions precedent for its having jurisdiction are fulfilled. A Court will be competent when:-
i. It is properly constituted as regards number and qualifications of the member of the bench, and no member is disqualified for one reason or another;
ii. the subject matter of the case is within its jurisdiction and there is no feature in the caseýwhich prevents the Court from exercising its jurisdiction and;
iii. the case comes before the Court initiated by the process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are nullity, however well conducted and decided. The defect is extrinsic to the adjudication"
A plea of estoppel per rem judicatem does not fall under any of these general parameters to the exercise of a Court's jurisdiction and a party who wishes to rely on this plea must raise such objection in his defence or after his defence has been filed. I therefore agree with the decision of the trial Judge in striking out the preliminary objection on the ground that it was a demurrer.
Consequently, I also dismiss the appeal. I abide by the consequential orders made in the lead judgment.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO J.C.A.:I have had the privilege of reading in draft, the judgment just delivered by my learned brother, CHINWE EUGENIA IYIZOBA, JCA. I am in agreement with the reasoning and conclusion therein.
In a line of decided authorities, it is now firmly settled that where a party invokes the rule of estoppel per rem judicatam, he thereby raises a defence to the subsequent action which is to the effect that there is an existing judgment on the same cause of action which had previously been decided by the Court. Quite rightly, the rule has been recognized by the supreme Court long before now that in civil cases, as a rule of evidence which bars a party from denying a fact that has already been settled. It is to this extent that Section 59 of the Evidence Act provides to the effect that previous judgments are admissible to bar a second suit or trial.
Having abolished proceedings in lieu of demurrer as per Order 16, Rule 1 of the Federal High Court (Civil) Procedure Rules, 2009, it is of utmost importance that the Appellant frontload his Statement of Defence incorporating the plea of res judicata and evidence of such earlier attached as exhibit.
It is for this and the more detailed reasons contained in the leading judgment that I find that this appeal lacks merit and is hereby dismissed. I abide by the consequential judgment made in the leading judgment.
E.C IGWEOKOLO, ESQ., WITH HIM, I. ONYEKA (MRS), Y. OGEDEMGBE (MRS) and I. KENECHUKWU (MRS) For Appellant
CHIBUZO AGUOCHA, ESQ. For Respondent