National Insurance Commission & Anor. V. First Continental Insurance Company Ltd. (2006)

LawGlobal-Hub Lead Judgment Report

SOTONYE DENTON-WEST, J.C.A.

This is an appeal against the ruling of the Federal High Court (Lagos Division) of the 22nd day of July, 2003 per Abutu, J. wherein the trial court refused to dismiss suit No. FHC/L/CS/854/99 for being estoppel barred and an abuse of the process of court.

The appellants, who were the defendants at the court below being dissatisfied with the ruling filed a notice of appeal in this court dated the 1st day of August, 2003 and raised three grounds of appeal;

1. Ground One

The honorable trial court erred in law when it held that the parties and the issues in suit No. FHC/L/CS/26/99 and suit No. FHC/L/CS/854/99 are not the same whereas the parties and the issues in the two suits are essentially and circumstantially the same with each other.

2. Ground Two

The honorable trial court rightly found as a fact that the two suits (suit No. FHC/L/CS/26/99 and suit No. FHC/L/CS/854/99) have a common cause of action, was wrong in law to suddenly turn around to hold that the issues and the parties in the two suits are still different.

3. Ground Three

The honorable trial court erred in law when it held that the Institution of suit No. FHC/L/CS/854/99 is not an abuse of court processes.

The appellant sought for an order of this court setting aside the ruling of the lower court of the 22nd day of July, 2003 and dismissing the respondent’s suit for being an abuse of the process of court.

The appellant filed its brief of argument on the 15th of March, 2004 and formulated two issues for determination:

Issues for determination

1. Whether the honorable court was right in holding that suit No. FHC/L/CS/26/99 does not operate as estoppel against the present suit No. FHC/L/CS/854/99.
2. Whether the institution of suit No. FHC/L/CS/854/99 does not constitute an abuse of the court process in view of the earlier court decision in suit No. FHC/L/CS/26/99.

The first issue formulated by the appellant is distilled out of the first and second ground of appeal while the second issue formulated is distilled out of the third ground of appeal.

The respondent filed its brief of argument on the 17th of September, 2004 and adopted the two issues for determination formulated by the appellants.

The appellants stated that the conditions precedent to estoppel per res judicata had been met as set out in the case of Maya v. Oshuntokun (2001) 11 NWLR (Pt.723) 62 at 67 R. 7 thus;

a) the parties or their pri vies are the same that is to say the parties involved in both the previous and present proceedings are the same.

b) the claim or the issue in dispute in both the previous and the present actions are the same.