Nigergate Limited V. Niger State Government & Ors (2007)

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OYEBISI FOLAYEMI OMOLEYE, J.C.A.

This is an appeal against the ruling of the High Court of Justice, Niger State per Hon. Justice F. L. Abubakar which was delivered on 27/9/05,

STATEMENT OF FACTS

The Appellant was awarded a contract by the 1st Respondent for the management of the Control Posts located at Jebba, Mokwa, Suleja and Wuse for the purpose of collecting taxes in respect of all livestock, grains produce and other goods passing through Niger State vide a contract agreement executed on 22/6/01. The contract was for a term of five years commencing from the 1st day of February, 2001 and terminating on the 31st day of January, 2005.

The 1st Respondent unilaterally terminated the agreement inter alia based on an alleged irregular remittance of the contractual monthly dues by the Appellant. As a result of this, the Appellant instituted a suit against the Respondents in the Niger State High Court on 7/5/2002 to enforce the terms of the agreement. The suit was dismissed for being unmeritorious. Dissatisfied with the judgment, the Appellant appealed against it to this Court. The appeal was allowed in a well-considered judgment of this Court which was delivered on the 29th day of June, 2004 restoring the Appellant to the management of the said Control Posts in accordance with the terms of the agreement by effluxion of time. I will in the course of this judgment state the full details of the specific reliefs sought by and granted to the Appellant by this Court in the said judgment.

On 24/11/2004, the Appellant instituted another action in the High Court of Niger State by way of Originating Summons for a declaration to continue to manage the Control Posts till the 31st day of January, 2008. In the interim, the Appellant sought and obtained an order of interlocutory injunction restraining the Respondents from taking over possession of the Control Posts. In the Originating Summons, the Appellant sought the following reliefs:

“1. A DECLARATION that the Plaintiff is entitled to performance of the contract as contained in the Agreement between the Plaintiff and the 1st Defendant dated 22nd June 2001, for a term of 5 years, which would expire or determine on 31st January 2008.

2. A DECLARTION that by 31st January2005 the Agreement between the Plaintiff and the 1st Defendant dated 22nd June 2001 would only have been performed for a period of 1(one) year 10 (ten) months.
3. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants by themselves, their servants, agents, and/or privies howsoever from disturbing the Plaintiff’s management and control of the Produce Control Posts located at Jebbo, Mokwo, Suleja and Wuse as particularized in the Agreement and for the purpose contained in the Agreement until the term of 5 years granted by the Agreement between the Plaintiff and the 1st Defendant dated 22nd June, 2001 would have-expired on 31st January 2008.”

The Respondents in response to the Appellant’s suit filed a Notice of Preliminary Objection on 11/5/2006 wherein they challenged the jurisdiction of the High Court of Niger State to hear and determine the issues and the prayers of the Appellant. The objection was predicted on the ground that the issues have been considered and finally determined by this Court in its earlier judgment of 29/6/04 and therefore caught by the doctrine of “res judicata” Both counsel made their submissions for and in opposition to the objection. The trial Court in its ruling delivered on 27/9/05 upheld the preliminary objection, declined jurisdiction to adjudicate upon the suit, vacated its earlier order of interlocutory injunction granted against the Respondents and dismissed the suit of the Appellant. Aggrieved by the ruling, the Appellant lodged this appeal to this Court challenging the propriety of same.

As stipulated in the relevant provisions of the Court of Appeal Rules, 2002, parties complied with the procedure of appeal. Briefs were filed and exchanged.

On 12/3/07 when the appeal was heard, learned counsel for the Appellant, Ms. Maureen Onyiuke adopted and relied on the Appellant’s brief of argument which was deemed filed on 10/7/06.

She urged the Court to allow the appeal and set aside the ruling of the trial Court. In the brief, the Appellant distilled three issues from the three grounds of appeal as contained in the Amended Notice of Appeal fried on 5/7/06. The three issues are as follows:

“1. Whether the Lower Court was right in pre-emtively holding that adjudicating on the issues for determination as contained in the Originating Summons would be tantamount to reviewing the decision of the Court of Appeal. (Ground 1).

2 Whether the Lower Court was right in declining jurisdiction to entertain the Appellant’s claim on the grounds that the issues submitted for determination by the Originating Summons had been decided upon by the Court of Appeal and was therefore caught up by the doctrine of res judicata. (Ground2)

3 Whether the Defence of res judicata can be properly raised by way of a preliminary objection without a supporting affidavit providing the factual basis for the plea. (Ground3)’