Chief John Ehimigbai Omokhafe v. Chief John Ilavbaoje Iboyi Esekhomo

 I agree with the reasons for the judgment as given by my learned brother, Karibi-Whyte, J.S.C. for dismissing this preliminary objection. It must be emphasised that jurisdiction goes into the power of a court to adjudicate on a matter and it should be raised at any time in the journey of any suit from the first instance Court to the Court of final judicial remedy. This is because a matter tried by court lacking jurisdiction will be an exercise in nullity. Agu VS. vs. Ikewuibe (1991) 3 NWLR (Pt.180) 385; Ukaegbu v. Ugorji (1991) 6 NWLR (Pt.196) 127.Similarly res judicata can be raised at any stage of the proceedings, because if the issue being canvassed had been tried and decided by a court of competent or coordinate jurisdiction between the same parties or their privies, the subsequent trial will result in nullity. In the instant case the parties in the other case, still pending are not the same or privies to the present suit, thus the issue of res judicata does not arise.

It is for the above reasons and fuller reasons of my learned brother Karibi-Whyte, J.S.C., that I also dismissed the preliminary objection.

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On the 1st of February, 1993, after hearing learned counsel on both sides on the preliminary objection raised by the 5th respondent on the competency of the appeal, I dismissed the preliminary objection and reserved my reasons for doing so to today which I now proceed to do.

By a Writ of Summons taken out in the Auchi Judicial Division of the then Bendel State High Court sitting at Muze, the plaintiffs seek the following reliefs against the defendants:-

“1. A declaration that the order of rotation of Oruo Ruling Houses as contained in the draft Otuo Chieftaincy Declaration of 23rd January, 1957 which makes the rotation of Otuo Ruling Houses to be in accordance with the order of seniority of the Otuo Ruling Houses is the correct and appropriate order of rotation of the Ruling Houses according to Otuo Customary Law regulating the succession to the Traditional Ruler Title of the Ovie of Otuo.

2. A declaration that:

(a) the registered Otuo Chieftaincy Declaration of 1964

(b) the decisions contained in the Bendel State Government White Paper on the Report of the Ofili Commission of Inquiry into the Disturbances at Otuo, and

(c) the B.S.L.N. 141 of 1979 Declaration of the Customary Law regulating succession to the Traditional Ruler Title of the Ovie of Otuo are null and void in that they are contrary to the Oruo Customary Law regulating the order of rotation and the succession to the Traditional Ruler Title of the Ovie of Otuo.

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3. A declaration that the 17th December, 1973 appointments of the incoming Otuo Traditional Ruler and Traditional Chiefs whereby the First Plaintiff was appointed the Ovie-elect of Otuo by Otuo kingmakers presided over by the outgoing Ovie of OlOo, Chief Igbauma Idehai, are correct, proper, valid and in accordance with Oruo Customary Law regulating the succession to the Traditional Ruler Title of the Ovie of Otuo.
4. A declaration that the appointment and approval of the Fifth Defendant as the Ovie of Otuo by the First. Second. Third, and Fourth defendants are contrary to Otuo
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Customary Law regulating the succession to the Traditional Ruler Title of the Ovie of Otuo and that the said appointment and approval be declared null and void.

5. A declaration that the said appointment and approval of the Fifth defendant as the Ovie of Otuo are also contrary to and at variance with the decisions contained in the Bendel State Government White Paper on the Report of the Ofili Commission of Inquiry into the Disturbances at Otuo and the two Bendel State Traditional Rulers and Chiefs Edicts, 1979, Extraordinary Numbers 16 and B.S.L.N. 141, and the said appointment and approval be declared null and void.
6. A perpetual injunction restraining the First, Second, Third, and Fourth defendants and their agents, servants and/or successors from appointing, approving, recognising installing and/or gazetting the Fifth defendant as the Ovie of Otuo and also restraining the Fifth defendant from holding himself out as the Ovie of Otuo.”

The Writ of Summons was issued on 26th January, 1981 and the suit was also registered as HAU/4/81. Pleadings were filed and exchanged and parties adduced evidence in support of their respective cases. At the end of the trial, the learned trial Judge, Akpovi, J. gave judgment in the plaintiffs’ favour on 7th October, 1985.

Dissatisfied with the judgment of the trial court, the 4th and 5th defendants.

Chief Agbebaku Idehai and Chief John Ilavbaoje Iboi Esekhomo, appealed to the Court of Appeal, Benin Division.

In a judgment of that court delivered by Ogundare, J.C.A. (as he then was) with which Mustapher and Salami,

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J.J.C.A. agreed, the appeal was allowed, the judgment of the trial court was set aside and the plaintiffs claims were dismissed.

The plaintiffs have now appealed to this court after obtaining leave to do so.

In accordance with the provisions of Order 6 rule 5 of the Supreme Court Rules, 1985 (as amended), the parties to the appeal filed and exchanged briefs of arguments.

It is pertinent to state at this stage that after filing the appeal the 1st plaintiff (then the 1st appellant) died before filing brief. The 4th defendant (then the 1st respondent) also died before brief. It appears from the record in this appeal that the 2nd plaintiff (now the only appellant) and the 5th defendant (now the only respondent) proceeded with the appeal.

It should also be noted that white Suit No. HAU/4/81 was going on in the Auchi Division of the then Bendel State High Court, one Chief John Igbeoi Ovie a Chief from Amoya-Ohigba Ruling House, (the same Ruling House with the 4th and 5th defendants) sued the 1st plaintiff, Chief Peter Higo Ajakaiye in Suit No. HCN/8/85 claiming as follows:-

“(a) A DECLARATION that in accordance with Otuo Customary Law and recommendation as accepted by the Bendel State while paper on the commission of Inquiry into the Disturbances at Otuo vide official Document No.2 of 1979, it is now the turn of Amoya-Ohigba Ruling House to produce an Ovie.

(b) A DECLARATION that in accordance with the order of rotation of the Ovieship embodied in the 1979 Otuo Chieftaincy Declaration, CHIEF PETER HIGO AJAKAIYE

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of Olila-Orake Ruling House is not competent to contest the Ovieship of Otuo now.

(c) A DECLARATION that Chief John Igbeoi Ovie of Amoya-Ohigba Ruling House is the person entitled to be appointed the Ovie of Otuo under Otuo Customary Law and in accordance with the Traditional Rulers and Chiefs Edict No. 16 of 1979.

(d) AN INJUNCTION restraining the defendant from parading himself as the Ovie of Otuo.

(e) AN INJUNCTION restraining the defendant, his servants and/or agents from performing any customary ceremonies whatsoever in connection with the Traditional Chieftaincy title of the Ovie of Otuo or connected with his installation as Ovie of Otuo.”

It seems that the hearing of Suits Nos. HAU/4/81 and HCN/8/85 were held in different courts partly simultaneously. On 7th October, 1985 judgment in HAU/4/81 was delivered by Akpovi J, while that in HCN/8/85 was given on 4th July, 1986 by Akenzua J. In the latter case, the plaintiffs claim against the defendant was granted.

Before the judgment on HCN/8/85 was delivered, the plaintiff in that case – Chief John Igbeoi Ovie filed a notice of appeal against the decision in HAU/4/81. The notice was filed on 19th December, 1985. The Notice of Appeal was headed:

“BETWEEN:                            NO. HAU/4181

CHIEF JOHN IGBEOI OVIE –                      APPELLANT/APPLICANT

AND

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(1) CHIEF PETER HIGO AJAKAIYE         )

(2) CHIEF JOHN EHIMIGBAI OMOKHAFE)

(For themselves and on behalf of Orhirla)

Orake Ruling House and members of Otuo)       PLAINTIFFS/ RESPONDENTS

Clan community except the forth and fifth)

defendants and their supporters.             )

AND

(1)  THE MILITARY GOVERNOR OF             )

BENDEL STATE OF NIGERIA                )

(2) THE ATTORNEY-GENERAL OF                )

BENDEL STATE OF NIGERIA                  )

(3) THE COMMISSIONER OF LOCAL             )

GOVERNMENT AND CHIEFTAINCY           )          DEFENDANTS/ RESPONDENTS

AFFAIRS OF BENDEL STATE OF NIGERIA  )

(4) CHIEF AGBEBAKUN IDEHAI                     )

(5) CHIEF JOHN ILAVBAOJE IBOYI ESKHOMO”)

In the Notice of Appeal (supra), Chief John Igbeoi Ovie, was described as “APPELLANT/ APPLICANT”. I have gone through the record before me, and cannot trace where Chief Igbeoi Ovie applied for and was granted leave to appeal as an interested party against the judgment in HAU/4/81 delivered on 7th October, 1985.

Be that as it may, Chief Ovie did not prosecute the

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purported appeal. This was reflected in the proceedings of the Court of Appeal on 6th June, 1989 at page 498 lines 11 to 15 viz-

“Mr. Esemokhai says that the party who sought to be joined as an appellant in the Lower Court, that is, Mr. John Igbeoi Ovie did not file any brief even though he filed Notice of Appeal.”

It seems also, due to over-sight the Court of Appeal did not make any order in respect of incompetence or non-prosecution of the purported appeal by the applicant/appellant. Assuming that the applicant was rightly given leave to appeal as an interested party, he had abandoned it by failing to file brief. It is accordingly dismissed under Order 6 rule 10 of the Court of Appeal Rules, 1981 (as amended) under the general powers conferred on this court by Order 8 rule 12 of the Supreme Court Rules, 1985 (as amended) and Section 22 of the Supreme Court Act, 1960.

I shall now return to the complaint before this court which has been raised by way of preliminary objection to wit

“that the present appeal is incompetent and/or that the present appellant cannot pursue this appeal in view of the decision in Suit No. HCN/8/85: Chief John Igbeoi Ovie v. Chief Peter Higo Ajakaiye decided at the then Bendel State High Court Owan Judicial Division in 1986.”

In support of this preliminary objection, the 5th defendant/applicant filed brief. The 3rd plaintiff/respondent filed a brief in answer to the brief filed by the applicant.

In the brief filed by the 5th defendant/applicant, one issue was formulated for determination to wit –

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“…….can the judgment in suit No. HCN/8/85 operate as res judicata against the plaintiffs in this case? or can the plaintiffs herein relitigate the issue of the order of rotation of the Ovie of Otuo and the validity or otherwise of the 1979 Otuo Registered Chieftaincy declaration regulating the selection of the Traditional Ruler of the Ovie of Otuo in view of the subsisting judgment in HCN/8/85.”

The 2nd plaintiff/respondent also formulated one issue in his brief for determination by this court. It reads –

“Whether the respondent can at this stage now raise the issue of estoppel per rem judicatam, such issue not having been raised at the court of trial or in the court below and if it can now be raised, whether by the judgment of the High Court in Suit HCN/8/85, the appellant is barred from instituting this suit.”

For the simple understanding of the ruling to the preliminary objection, the 5th defendant/applicant would henceforth be referred to as the applicant while the 2nd plaintiff/respondent will be referred to as the respondent.

It was the submission of learned counsel for the applicant that since the 1st plaintiff (now deceased) was a party to HCN/8/85 as defendant, and that the order of rotation of the Ovie of Otuo Chieftaincy title was pronounced upon in favour of the Amoya-Ohigba Ruling House, and to which the present applicant, and respondent belong and the said judgment is still subsisting, it operates as res judicata against the respondent. He also submitted that the applicants as well as the respondent are privies to the judgment in HCN/8/85. He cited and relied on Ukaeghu & Ors. v. Ugoji & Ors.(1991) 6 NWLR (Pt.l96) 127 at

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145; Odadhe v. Okujeni (1973) 11 S.C. 343 at 353; Bassil v. Honger 14 WACA 569 at 572; Ndiribe v. Ogbogu (1989) 5 NWLR (Pt.123) 599 at 609; Oduka & Ors. v. Kasumu & Anor. (1968) NMLR 28 at 34 and Olufumise v. Falana (1987) 1 NWLR (Pt.47) 64 at 70. He urged this court to dismiss or strike out the appeal.

In answer to the submissions made on behalf of the applicant, learned counsel for the respondent submitted that before the doctrine of res judicata can operate it must be shown that the parties, the issues and the subject matter were the same in the previous case as those in the case to which the doctrine is being sought to apply and also that it must be pleaded before the trial court. He further submitted that it is now too late for the applicant even to ask for leave of this court to raise it. He cited several authorities to support his submissions amongst which are Oki & Anor. v. Akel 19 NLR 94; Ojikutu v. Fella & Anor. 14 WACA 628 and A.G. Oyo State v. Fairlakes Hotel Ltd (1988) 5 NWLR (Pt. 92) 1 at 29.

It is now trite law that before estoppel by res judicata can apply, the following conditions must be satisfied:-

1. Identity of the parties or their privies
2. Identity of the issues, and
3. Identity of the subject matter.

See ABIODUN V. FASANYA (1974) 11 S.C.61.

Can it be said that these conditions co-exist in Suit HAU/4/81 and Suit HCN/8/85?

In Suit No., HAU/4/81 the parties to the suit on 7th October, 1985, the date the judgment was given are:-

1. Chief Peter Higo Ajakaiye
2. Chief John Ehimigbai Omokhafe
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(For themselves and on behalf of Orlila, Orake Ruling House and Members of Otuo Clan Community except the 4th and 5th Defendants and their supporters).

(as plaintiffs)

v.

1. The Military Governor of Bendel State of Nigeria
2. The Attorney-General of Bendel State of Nigeria
3. The Commissioner for Local Government & Chieftaincy Affairs of Bendel State of Nigeria
4. Chief Agbebakun Idehai
5. Chief John lIavbaoje lboyi Esekhomo

(as Defendants);

While in the latter case, which is Suit No. HCN/8/85 the parties to the suit on 4th July, 1986, the date of judgment, are:-

Chief John Igbeoi Ovie

(as Plaintiff)

V.

Chief Peter Higo Ajakaiye

(as Defendant)

A perusal of the parties involved in the two suits (supra) will show the following:

1. The parties are not the same. The plaintiff in HCN/8/85 is not a party to HAU/4/81.
2. The defendant in HCN/8/85 was sued by the plaintiff in his own capacity.
3. While HAU/4/81 was instituted by the defendant in a representative capacity, Suit No. HCN/8/85 was prosecuted and defended by the parties thereto in their personal capacities.

A successful plea of res judicata operates not only against

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the parties whom it affects, but also ousts the jurisdiction of the court by the parties and their privies on the same issues and subject matter. See Salawu Yoye v. Lawani Olubode (1974) 10 S.C. 209 and Odadhe v. Okujeni (1973) 11 S.C. 343. As demonstrated above in the case on appeal before us, that is HAU/4/81 bearing the appeal No. S.C. 320/90, the parties are not the same as in HCN/8/85. In the former case it was a representative action while in the latter, it was a personal action. the Orhala-Orake Ruling House and Members of Otuo Clan Community were not parties to HCN/8/85.

As also pointed out by the learned counsel for the respondents, the issue of res judicata now being raised was not litigated upon in both the trial court and the Court of Appeal. The applicant is now raising it for the first time in this court without seeking leave to do so. See A.G. Oyo State v. Fairlakes Hotel Ltd. (1988) 5 NWLR (Pt..92) 1;Sken Consult (Nig) Ltd. v. Ukey (1981) 1 S.C. 6 and Agbaje v. Adigun (1993) 1 NWLR (Pt.269) 261.

It is for these reasons and the fuller reasons contained in the lead Reasons for Ruling of my learned brother, Karibi- Whyte, J.S.C., that I dismissed the preliminary objection of 1st February, 1993.

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The 5th respondent/applicant filed a notice of preliminary objection to wit –

“That the present appeal is incompetent and/or that the present appellant cannot now pursue this appeal in view of the decision in suit No. HCN/8/85. CHIEF JOHN IGBEOI OVIE VS. CHIEF PETER HIGO AJAKAlYE decided at the then Bendel State High Court, Owan Judicial Division in 1986”

The preliminary objection was dismissed with N1,000.00 costs against the applicant on 1/2/93 when it was heard and we adjourned to give full reasons for the decision today.

It was not disputed that Suit No. HAU/4/8l (now appeal No. S.C.320/90 in this court) was instituted in the High Court on 26/1/81 and judgment delivered therein on 7110/85. It was after that judgment that Suit No. HCN/8/85 was filed and judgment was not delivered until 4/8/86. The parties in the two cases are also clearly different. Under the circumstances it is impossible to see how the 1986 judgment could operate as a res judicata or estoppel against the earlier 1985 judgment as contended by the applicant herein.

It is simply for this reason and for the fuller reasons, given by my learned brother Karibi-Whyte, J.S.C. that I dismissed the application.

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Hon. Justice Shehu Usman Mohammed concurred with the leading judgment at the Chambers Conference of the Justices of the Supreme Court on this case. However, unfortunately, before the date of the delivery of the judgment, he died in ghastly motor accident.

Preliminary objection dismissed.

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