IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HER LORDSHIP HON. JUSTICE E. A. OJI, PhD
DATE: MONDAY APRIL 27TH 2020 SUIT NO: NICN/LA/539/2019
DR KOLAPO BABATUNDE ADEOGUN ……………………CLAIMANT
1. FEDERAL COLLEGE OF EDUCATION
2. CHAIRMAN, GOVERNING COUNCIL
FEDERAL COLLEGE OF EDUCATION……………..DEFENDANTS
3. REGISTRAR, FEDERAL COLLEGE OF
EDUCATION (TECHNICAL) AKOKA
Otumba M A Ogunleye appears for the Claimant
MO Akhuamheokhum appears for the Defendant
Introduction and Claims:
1. The Claimants filed this suit on the 29th day of October 2019 against the defendants seeking the following reliefs jointly and severally:
a) The sum of N7,865,229.25 being his total gross earnings for the months of July 2017 till October 2019 which earnings have been paid but illegally withheld by the defendants.
b) Interest on the said sum at the rate of 35% per annum from the date of judgment until the sum is paid.
c) An order of perpetual injunction to restrain the defendants from further withholding any of the claimant’s salaries or part thereof whilst his employment subsists.
2. In reaction to the suit, the defendant brought this application pursuant to Order 17 Rules 1(1) – (9) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 and under the Inherent Jurisdiction of this Honourable Court praying, in the main, for an Order dismissing Claimant/Respondent’s suit in its entirety, for want of jurisdiction, the suit being res judicata and consequently, constituting an abuse of court process.
3. The application is brought on the following grounds:
- The parties, subject matter and issues in Suit No. NICN/LA/419/2017 and in this present suit, are the same.
- The present claim of the Claimant/Respondent centres on issues already fully and finally decided and settled by this Honourable Court, in Suit No. NICN/LA/419/2017.
- This Honourable Court, having dismissed Claimant/Respondent’s reliefs Nos.1 and3 (which reliefs centred primarily on the issue of withholding of Claimant/Respondent’s salaries by the Defendants/Applicants) that issue has been fully and finally settled by this Court, between the parties, and therefore cannot give rise to any valid fresh claim, in this Court, in a subsequent suit, in respect of the same subject matter.
- It tantamount to abuse of court process for the Claimant/Respondent, in the face of the decision of this Court in Suit No. NICN/LA/419/2017, to claim (as he has donein this present suit) that the action of the Defendants/Applicants in withholding payment of his salaries is “wrongful and/or unlawful”, “prejudicial”, “oppressive”, “illegal” and “void”.
- Claimant/Respondent is estopped from maintaining this present claim against the Defendants/Applicants as same tantamount to re-litigating issues already fully and finally decided and settled by this Court in Suit No. NICN/LA/419/2017, between the Claimant/Respondent and the Defendants/Applicants.
- This Honourable Court, assuming jurisdiction over the claims/reliefs sought by the Claimant/Respondent in this suit, might result in absurdities and is likely to produce conflicting decisions by same court, on same issue, same subject matter, between same parties, the issue of the unlawfulness or otherwise of the withholding of Claimant/Respondent’s salaries by the Defendants/Applicants, havingalready been fully and finally decided and settled by this Honourable Court.
4/ The application is supported by a 31 paragraph affidavit deposed to by Marian Akhuamheokhun, Esq., a legal practitioner in the firm of Ambrose Nwabueze& Co., Counsel to the Defendants/Applicants. In support are two exhibits, marked as exhibits “MA1” (judgment of this Court in NICN/LA/419/2017), and “MA2” (Record of proceedings/Ruling of 15th January 2019 in NICN/LA/419/2017).In line with the Rules of this Court, the Defendant also filed a written address.
Arguments of Defendant:
5. In their argument, Defendants raised a lone issue for the determination, to wit;
“Whether Claimant’s suit against the Applicants is not liable to be dismissed in its entirety, for want of jurisdiction by this Honourable Court to entertain same, the suit being res judicata and consequently, constituting an abuse of court process?”
6. In their argument on the lone issue, Defendants restated the principle of res judicata and submit that where the plea is raised, it is irrelevant whether or not the judgment is correct, as the court will not go into the correctness or merits of a judgment on which a plea of res judicata is founded. They referred to Onyebuchi v. INEC (2002) 8 NWLR (Pt. 769) page 417 at page 435 – 436 paras. H – B.. The defendants submit that where a party sets up res judicata by way of estoppel as a bar to the other party’s claim, the following must be established:
- There must be a judicial decision;
- The court that rendered the decision must have had jurisdiction over the parties and the subject matter;
- The decision must be final and on the merits;
- The decision must determine the same question as that raised in the later litigation and;
- The parties to the later litigation were either parties to the earlier litigation or their privies or the earlier decision was in rem (see Dakola v. Dakolo (2011) 46 NSCQ (PT.2) 669 at p. 708.
7. The defendants argued that their application is meritorious and deserving of being granted because the conditions to be satisfied for a successful plea of res judicatahave been satisfied by them, as follows:
- There is a judicial decision (exhibit “MA1” (the judgment), by a competent court (this Honourable Court), after a full hearing and on the merits, which decided the subject matter of the suit;
- The parties in the earlier suit (Suit No. NICN/LA/419/2017) and the parties in the present suit, are the same; and,
- The subject matter of/in both suits are the same as they border primarily on the unlawfulness or otherwise of the withholding of Claimant’s salaries by the Applicants.
8. Defendants then submit that Claimant’s present suit is caught by estoppel per rem judicatamin view of the judgment of this court in Suit No. NICN/LA/419/2017 and that by operation of the doctrine of res judicata; this court lacks jurisdiction to entertain this suit.
9. In response to the Defendants’ Notice of Preliminary Objection, the Claimant filed a Reply. In it, the Claimant raised two issues for determination, as follows:
- Whether paragraphs 13, 17,20, 21,22, 23, 24, 28,29 and 30 of the affidavit deposed by Marian Akhuamheokhunin support of the preliminary objection offend Section 115(2) of the Evidence Act and must therefore be struck out.
- Whether this suit is caught by the doctrine of res judicata in view of the judgment of this court in Suit no. NICN/LA/419/2017?
10. The Claimant argued, on issue one that by the provisions of Section 115(2) of the Evidence Act, an affidavit to be used in court may not contain extraneous matter by way of objection, prayer or legal argument or conclusion. The claimant states that in this case, the defendants’ affidavit supporting the preliminary objection is riddled with legal arguments, prayers and objections. The claimant noted particularly paragraphs 13, 17, 20, 21, 22, 23, 24, 28, 29 and 30 as all being extraneous and offending the provisions of section 115(2) of the Evidence Act. He contends that these offending averments are liable to be struck out.
11. On issue two, the Claimant concedes that the parties, subject matter and issues in this suit and the earlier suit wherein judgment was delivered on 28/10/2019 (Exhibit MA1) are the same. He noted that a very narrow point however is whether that judgment decided, either finally or temporarily, the issues between the parties as they relate to non-payment of the claimant’s salaries; and submits that it did not. The claimant referred to Ranking Udo v. MbiamObot (1989) 1 S.C. (pt 1) 64 @ 73 where the apex court, (per OPUTA, JSC of blessed memory) held as follows that “A plea of res judicata can be maintained only when the same question as has been judicially decided was again raised between the parties”; and submit further that by reason of the paucity of facts as pointed out in the judgment (Exhibit MA1),there could not have been said to have been a final decision on the issue of non-payment of claimant’s salaries.
12, The claimant referred to the holding of the Court in the previous case that:
Claimant in his relief just sought for a declaration that certain acts of the defendants are illegal, unlawful and ultra vires without referring the court to the law, which the said acts violate or leading evidence to show the basis of the ultra vires action. I do not find evidence on which to rely to begin a consideration of illegality, unlawfulness or otherwise of the actions of the defendants.
13. The Claimant submits that based on the above, the judgment of this court in the previous suit did not determine the issues and thus amounted to a NON-SUIT; and in that circumstance enables the claimant to re-litigate the issues.
14. The Defendants filed a Reply on Points of Law. In it, they addressed the issue of the alleged defective paragraphs of their affidavit, and the judgment in the previous suit, being at best a non-suit. The defendants argued that the judgment did not have the effect of a non-suit as it categorically stated that “… In summary, the entire action fails and is hereby dismissed ……” That, it was not open to the Claimant (as he has done in his Reply), to foist on the court, a warped interpretation of the otherwise very clear judgment and return an interpretation of “NON-SUIT” in place of the order of dismissal, made by the court.
15. On the challenged paragraphs of the Defendants’ affidavit, the defendant submit that Claimant merely threw this objection at the court, without in anyway showing or demonstrating how the paragraphs, offended the provisions of the Evidence Act, as alleged.
16. What this Court has been called upon to determine is if the judgment in suit number NICN/LA/419/2017 constitute res judicata to this present suit. I have considered the processes filed and the argument of Counsel in this application; and set the following issues for determination:
- Whether the challenged paragraphs of the Defendants’ affidavit are defective and contrary to section 115 (2) of the Evidence Act 2011.
- Whether the judgment of this Court in NICN/LA/419/2017 was a non-suit.
- Whether the Defendants Objection has merit.
17. On issue one, I have considered Claimants challenge to paragraphs 13,17, 20,21,22, 23, 24, 28, 28, 29 and 30, of Defendant’s affidavit, for allegedly offending section 115(2) of the Evidence Act. That section provides that, “an affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion”. The Claimant, in making this objection to these paragraphs merely listed the said paragraphs without stating how each of them offends the said provision of the Evidence Act. It is not for the Court to begin to conjecture facts and arguments to support Claimant’s assertion - Agip (Nigeria) ltd v. AP International &Ors(2010) LPELR-250(SC).
18. Despite the position stated above, I have gone ahead to consider the said paragraphs and I do not find them to contain extraneous matters by way of objection, prayer or legal argument or conclusion. I find the facts averred therein as ones that necessarily follows the application made. An application founded on res judicata needfully would contain averments deriving from the judgment referred to. I agree with the Defendants that “the paragraphs referred to are a mere factual analysis of the content and the consequences of exhibit “MA1”, the judgment of this honourable court”. By this, I find that the Claimant did not establish any basis for striking out or discountenancing the listed paragraphs. I so hold.
19. Issue two iswhether the effect of the judgment of this Court is a non-suit. In Lawal v. Aliyu(2014) LPELR-24320(CA), the Court described non-suit as follows:
The expression non-suit is used in civil proceedings to describe the judgment of the court in a variety of circumstances. Generally it is the exercise of discretion to relieve the plaintiff who has not totally failed to prove his claim on the merit, but it would, in the circumstances, be unjust and inequitable to dismiss the action. See Dada v Ogunremi&Anor (1967) N.M.L.R. 181. The intention is to enable the plaintiff to re-litigate the claim subsequently. The rationale for the exercise of the discretion by the judge is that the defendant is not in any way overreached as a result of the second opportunity given to the plaintiff to prove his case." Per MUKHTAR, J.C.A. (P. 23, paras. B-E).
20. Order 46 (1) of the Rules of this Court, recognises when a Judge can non-suit a matter. It is stated that:
Where satisfactory evidence entitling the Claimant or Defendant to Judgment of the Court is not given, the Court maysuo-motu or on application non-suit the Claimant or the Defendant or the counterclaimant as the case may be. Provided that the counsel to the parties shall have the right and be given the opportunity to make submissions about the propriety or otherwise of making such an Order before it is made.
Provided further that an order of non-suit shall not be made where the claim or counter-claim as the case may be, partly succeeds.
21. The above cited dictum of the Court and the provision of Order 46(1) of the National Industrial Court Rules 2017 is clear on when a suit can be non-suited. In each case, it is the Judge who determines that and makes it clear in its Judgment or Ruling. It is not a matter for inference by any of the parties. The judgment of this Court in NICN/LA/419/2017 was decisive on the issues, and the matter duly dismissed, as the Claimant did not prove his entitlement to the reliefs he sought. In paragraph 14 of that judgment I held that:
14. It is a basic principle of law that a party seeking reliefs from the court has the duty to prove, to the satisfaction of the court, that he is entitled to such reliefs and where he fails to satisfactorily do so; his claims/reliefs are liable to be denied/refused. Claimant in his relief just sought for a declaration that certain acts of defendants are illegal, unlawful and ultra vires without referring the court to the law, which the said act violates or leading evidence to show the basis of the ultra vires action. I do not find evidence on which to rely to begin a consideration of the illegality, unlawfulness or otherwise of the actions of the defendants. None of the exhibits tendered by claimant seeks to establish these facts, nor is there any evidence to assist the court in making any finding on it. This court cannot begin to imagine and assume facts.
22. The effect of the above is that the Claimant did not prove his entitlement to the relief sought. Further in paragraph 15 of the judgment, I held that:
15. It is trite that he who approaches the Court has the burden of proving the entitlement to the reliefs sought. Both case law and statute support this proposition. See Chairman, EFCC &Anor. v. Littlechild&Anor (2015) LPELR-25199 (CA) &Section 131(1) & (2), Evidence Act, 2011.Except in relation to express and unambiguous admission, the burden of proof remains on he who asserts. In his evidence, Claimant tendered exhibits C1 - C5, which are letters inviting him to a meeting with the Provost of the 1st Defendant and subsequent letters from the 1st defendant to the claimant notifying him of the suspension of his salaries by the 1st defendant. These pieces of evidence, in no way, support the relief sought as it failed to establish the source of claimant’s rights allegedly breached by the defendants. In the absence of the laws breached by the defendants, and/or any instrument of agreement between the parties, like an instrument evidencing the terms and conditions of the employment relationship between parties, this Court is unable to relate the acts of the defendants to any legal instrument in order the gauge the unlawfulness, illegality or ultra vires nature of the acts. I therefore find and hold that the claimant has failed to prove that the actions of the defendants areillegal, unlawful and ultra vires their powers and to that extent are null and void. Accordingly, relief one is declined.
23. The above excerpts of the judgment, in no way implies a non-suit, rather, it shows that the matter was heard and conclusively determined to have failed, and was subsequently dismissed. I find and hold that the judgment was not a non-suit.
24. The third issue set down for determination responds to the preliminary objection brought by the Defendant; which challenges the jurisdiction of this Court to entertain this suit, the suit being resjudicata, and consequently constituting an abuse of court process.
25. The Supreme Court in the case ofNtuks v. Nigerian Ports Authority(2007) LPELR-2076(SC)defined Res judicata to mean:
A matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment. The rule is that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to the rights of the parties and their privies, and as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action.
26. The essence of the doctrine of res judicata is the judicially formulated proposition that a matter which has been adjudicated in a prior action cannot be litigated a second time. The policies which res judicata is designed to serve include the public interest in decreasing litigation, protection of the individual from the harassment of having to litigate the same cause of action or issue against the same adversary or his privy more than once, facilitation of reliance on judgments and to ensure that there is an end to litigation. Res judicata is intended to strike a balance between competing interests. Its primary purpose is to assure an efficient judicial system. A related purpose is to create "repose" and finality - Comer v. Murphy Oil USA, Inc., 718 F. 3d 460 (5th.Cir. 2015).
27. The doctrine of res judicata which is a rule of evidence has been incorporated into Nigerian law videSection 173 of the Evidence Act which provides that:
Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the court, and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action it is intended to be proved.
28. As aptly presented by both parties, conditioned on case law, the prerequisites to a successful plea of res judicata are:
- That the parties or their privies are the same in both the previous case and the present proceedings;
- That the claim or issues in dispute in both actions are the same;
- That the res or subject matter of litigation in the two cases are the same;
- That the decision relied upon to support the plea of estoppel per rem judicatamis valid, subsisting and final; and
- That the court that gave the previous decision relied upon to sustain the plea is a court of competent jurisdiction – See MichealOgbolosingha v. Bayelsa State Independent Electoral Commission (2015) 6 NWLR (Pt. 1455) 311.
28. There is no contention by the parties over conditions 1, 3, 4 and 5 of the conditions precedent for the application of the principle of res judicata as presented above;the condition which calls for determination is whether the claim or issues in the two cases are the same. In NICN/LA/419/2017, the Claimant sought for the following reliefs:
- A DECLARATION that the defendants’ directives contained in the internal memoranda dated 30th June and 21st July 2017 respectively and suspending payments of the claimant’s salaries are ILLEGAL, UNLAWFUL, ULTRA VIRES the powers of the defendants and to that extent are NULL and VOID.
- A DECLARATION that the directives directing the claimant to withdraw cases he has in court in respect of disputes over the management of Edutech Model Cooperative Society Limited are an infringement of the claimant’s rights to fair hearing as guaranteed in section 36(1) of the Constitution of the Federal Republic of Nigeria 1999.
- AN ORDER of PERPETUAL INJUNCTION to restrain the defendants jointly and severally from further interfering with the prompt payment of the claimant’s salaries and emoluments.
29. In this suit, the Claimant seeks for the following reliefs:
a) The sum of N7,865,229.25 being his total gross earnings for the months of July 2017 till October 2019 which earnings have been paid but illegally withheld by the defendants.
b) Interest on the said sum at the rate of 35% per annum from the date of judgment until the sum is paid.
c) An order of perpetual injunction to restrain the defendants’ from further withholding any of the claimant’s salaries or part thereof whilst his employment subsists.
30. Considering the reliefs sought in the two separate suits; it is not difficult to see that the first relief in suit No. NICN/LA/419/2017 and the first relief in this suit, relate to the same subject matter: the Claimant’s retained salary. What they Claimant has done is to re-couch the relief and now seeks the object of the action challenged in the previous suit, yet still asserting that its illegality.
31. From the Statement of Facts in this case, the subject matter continues to be Claimant’s ceased salary; and the issue continues to be the legality of the action of the Defendants in so ceasing the Claimant’s salary.
32. This Court had in suit NICN/LA/419/2017 held that the Claimant was not able to prove the illegality of the action of the Defendants’ action and had dismissed the suit. The Claimant in the previous suit had the opportunity to ventilate his grievances over the alleged illegal withholding of his salary, but failed to prove his allegations. If this Court is to entertain this matter, this Court will, in effect, resurrect the issue of Claimant’s withheld salary, which issue the Claimant could not prove in NICN/LA/419/2017. This Court has no such powers.
33. Again, it is seen that relief three (3) in both the previous suit and the present suit are seeking the same injunctive reliefs.
34. The Claimant in response to this application had emphasised the dictum in the previous judgment to the effect that the Claimant failed to present to the Court the instruments of his employment and of the operations of the Defendants to enable the Court determine the lawfulness or otherwise of the alleged withholding of salary. He then argues that the issue was not determined. It is my view that the issues in the previous case were fully determined, by a reasoned consideration of all the facts and arguments before the Court. The facts and documents which the Claimant seeks to rely on in support of the present case are essentially facts and documents which existed at the time of his earlier action in Suit No. NICN/LA/4192017. Claimant/Respondent had opportunity to place the said facts and documents before the court in the earlier Suit.The Claimant cannot be permitted to, through the commencement of another action, seek to remedy what he was unable to prove, in the previous suit. Lord Denning in Fidelitas Shipping Co. Ltd v. V/O Exportchled (1966) 1 QB 640 had restated that once an issue has been decided by court, it cannot be re-opened. The Law Lord noted that:
And within one issue, there may be several points available which go to aid one party or the other in his efforts to secure a determination of the issue in his favour. The rule then is that each party must use reasonable diligence to bring forward every point which he thinks would help him. If he omits to raise any particular point, from negligence, inadvertence, or even accident (which would or might have decided the issue in his favour), he may find himself shut out from raising that point again, at any rate in any case where the self-same issue arises in the same or subsequent proceedings.
35. In Ikeni v. Efamo, (2001) 10 NWLR (Pt. 720) 1, the Supreme Court held that:
A party is precluded from contending the contrary of any precise point which, having once been distinctly put in issue has been solemnly and with certainty determined against him. Even if the objects of the first and second actions are different, the finding on a matter which came directly (not collaterally or incidentally) in issue in the first action, provided it is embodied in a judicial decision that is final, is conclusive between the same parties and their privies.
36. Galadima JSC in Mr.Akinfela Frank Cole v. Mr.AdimJibinoh&Ors, (2016) LPELR-40662 (SC) had held that:
Where a Court of competent jurisdiction has finally settled a matter in dispute between parties, neither party or privy may relitigate that issue as 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 ???FlowFarm Industries Ltd v. University of Ibadan (1993) NWLR (Pt.290) 719 at 724.
37. The argument that the effect of the judgment is a non-suit is inapplicable; as that was never stated in the judgment. The Courts have held that an order for non-suit would never be made, and I dare say, intended where the plaintiff failed to lead appropriate evidence required to prove his claim. In such a situation the appropriate order to be made is that dismissing his claim as was made in suit No. NICN/LA/419/2017. See Jaiyeola v. Abioye(2002) LPELR-7169(CA).
38. I find that the legality or otherwise of the withholding of the Claimant’s salarywas directly in issue in NICN/LA/419/2017 and that issue having been determined with certainty, Claimant is precluded from seeking to re-litigate the issue of withholding of his salary illegally by the Defendants. If the Claimant was not satisfied with the finding in NICN/LA/419/2017, an appeal would have been the appropriate manner by which to challenge the judgment rather than trying to start a new trial on an issue already directly determined. The veracity of that decision or determination is also not open to a challenge nor can it be contradicted in this Court – See Captain Oleksandr&Ors v. Lonestar Drilling Company Ltd &Anor, (2015) 9NWLR (Pt. 1464) 337. The Supreme Court also held in Captain Oleksandr&Ors v. Lonestar Drilling Company Ltd &Anor (Supra) that “a decision of a court of competent jurisdiction not appealed against remains valid, subsisting and binding between the parties and is presumed to be acceptable to them.”
In conclusion, I find that all the conditions for the application of res judicata are present in the instant case. In Senator AlphonsusIgbeke v. Lady Margery Okadigbo(2013) LPELR-20664(SC), the Supreme Court per Galadima JSC held that ‘a plea of res judicat is a jurisdictional issue by which a court of law is being asked not to assume jurisdiction. A preliminary objection when successfully utilized is capable of determining the proceedings in limine"In the case of MichealOgbolosingha v. Bayelsa State Independent Electoral Commission (2015) 6 NWLR (Pt. 1455) 311, the Supreme Court held that:
The pleas of res judicata is of a special nature as it operates not only against the parties but also the Court itself and robs it of its jurisdiction to entertain the same cause of action on the same issue previously determined between the same parties by a Court of competent jurisdiction.
I therefore hold that by virtue of the finding that this case is caught by the principle of res judicata, this Court is divested of jurisdiction to hear this suit as presently constituted. I hereby dismiss this suit in its entirety.
Ruling is entered accordingly.
Hon. Justice Elizabeth A. Oji PhD