Abiola & Sons Bottling Company Ltd Vs Seven-up Bottling Company Ltd & Ors (2012) LLJR-SC

Abiola & Sons Bottling Company Ltd Vs Seven-up Bottling Company Ltd & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report


The 3rd Respondent/cross-appellant is one of the Appellants Bankers. It granted loans amounting to 3.5 Million (three Million and five hundred thousand Naira) to the Appellant. The loan was secured by a Debenture Deed dated the 27th of November 1986 in favour of the 3rd respondent. Owing to the appellants default in repaying the loan with interest, the 3rd respondent/cross-appellant relied on a provision in the Debenture Deed, and appointed the 2nd respondent/cross-appellant the Receiver/Manager over the assets of the; appellant. In performing his duties the 2nd respondent/cross-appellant sold some of the assets of the


appellant to the 1st respondent.

Alarmed by the sale of its assets the appellant, as plaintiff took out a Writ of Summons in a Kwara State High Court, Ilorin Division, against the respondents/cross-appellants for:

A DECLARATION that the removal, sale, disposal of and/or sharing by the defendant of the (subject matter) 44 vehicles and/or plants in total disregard of a subsisting court order restraining them from so doing is illegal, null and void and of no effect whatsoever.


A DECLARATION that the removal, sale, disposal of and/or sharing of the said 44 vehicles and/or plants during the pendency of Suit No.KWS/215/88 is illegal, null and void and of no effect whatsoever


A DECLARATION that the removal, sale, and/or disposal of the said 44 vehicles and/or plants by the defendants without compliance with the provisions of the Auctioneers Law, Cap 10 Laws of Northern Nigeria applicable to Kwara State is illegal, null and void and of no effect whatsoever.

RESTITUTION OF THE SAID 44 VEHICLES AND PLANTS in the working conditions they were before the defendants illegally sold them


A SUM OF N18,O31,890.00K being the market value of the said 44 vehicles and plants illegally sold, disposed of and/or shared by the defendants.

GENERAL DAMAGES of a sum of N132,919.181. 00K


Gbadeyan J (as he then was) of the Ilorin High Court, Kwara State presided. On 28/5/98 the defendants urged the trial court to strike out the suit on the ground that it was caught by the doctrine of estoppel per rem’ judicatam in view of the judgment in KWS/122/91 delivered on 2/4/98. The learned trial judge dismissed the defendants’ application. Before hearing the defendants application trial had been concluded after nine witnesses gave evidence for the plaintiff and two for the defendants and several documents admitted as exhibits.

After dismissing the defendants’ application the learned trial judge entered judgment for the plaintiff/appellant in these words:

Consequently the plaintiff’s claim succeeds in its entirety. The three defendants jointly and severally shall pay to the plaintiff the sum of N18, 031,980.00 as special damages and N 132,000.000 as general damages.

Aggrieved by the judgment the respondents appealed against the Ruling and the judgment. On the 19th day of May, 2004 the Court of Appeal allowed both appeals and set aside the decision of the trial court. This appeal is against the Ruling and judgment of the Court of Appeal. In accordance with well settled practice and rules of this court briefs were filed and exchanged. The appellant, who was the plaintiff in the trial court and respondent in the Court of Appeal filed its brief on the 8th of August 2005. The respondents filed a respondents/cross-appellants brief deemed duly filed and served on the 22nd of November 2006. The appellant filed a reply brief on the 28th of April 2011.

The appellant formulated six issues for determination. They

See also  Alhaji W. Elias v. Alhaji B. A. Suleimon & Ors (1973) LLJR-SC


Whether, in view of the decision of this Honourable Court in the case of 7 up Bottling Co. Ltd & 2 ors v. Abiola & Sons Bottling Co. Ltd 2001 6 SC p. 73, the lower court was still right in applying estoppel per rem judicatam in striking out the plaintiffs suit OR whether this suit is/was caught by estoppel per rem judicatam.


Whether the lower court was right in its failure, neglect and/or refusal to strike out Ground 2 of the Grounds of Appeal against the ruling and Grounds 5, 6, 7, 8 and 9 of the Grounds of Appeal against the final judgment before it for being incompetent.

Whether the lower court was right in allowing the appeal before it on the basis that disobedience to or court order does not give rise to an independent cause of action when apparently the plaintiff’s cause of action is a claim in tort of conversion.

Whether Exhibit D5 and D6 which relate to committal proceedings, constitute issue estoppel to this case, which is a claim in tort of conversion


Whether the lower court was right in holding that the parties and the subject matter do not have to be the same in the earlier and later case for issue estoppel to operate.

Whether the trial court relied on the doctrine of lis pendens as a basis for its judgment.

Whether, having regard to the circumstances of this case, the lower court rightly set aside the decision of the trial court when the subject matter assets are not envisaged by a purported Debenture Deed.

The respondents adopted the six issues formulated by the appellant. At the hearing of the appeal on the 30th of April 2012 learned counsel for the appellant Dr. S.O. Olatoke adopted the appellants brief filed on the 8th of August 2005 and the reply brief filed on the 28th of April 2011. He urged the court to allow the appeal and restore the judgment of the trial court and dismiss the cross-appeal.

Learned counsel for the respondents, Mr. A.A. Adegbonmire adopted the respondents brief deemed filed on the 22nd of November 2006. He urged this court to dismiss the main appeal


and allow the cross-appeal.

I have carefully considered the six issues formulated by the appellant and adopted by the respondents, and find that the first issue is very important and crucial. If it succeeds there would be no need considering the other issues, which cover the main appeal.

See also  Chief Emmanuel Eze Onuwka V. Engr Samuel Ononuju (2009) LLJR-SC

In the trial court the respondents /cross-appellants were the defendants. They brought an application to strike out the suit. Their ground for bringing the application was that the entire suit, the plaintiff/appellants claims became the victim of estoppel by res judicata when judgment was delivered in a sister case by the High Court at Offa, Kwara State on the 1st of April, 1998. That suit is KWS/122/91. On this aground the learned trial judge dismissed the application after finding that the plaintiff/appellant was not precluded from proceeding with their case. That Ruling went on appeal to the Court of Appeal. The Court of Appeal set aside the decision of the learned trial judge. The meaning of that Ruling is that the plaintiff/appellants case was caught by the doctrine of estoppel per rem judiciatam. Being the penultimate court, the Court of Appeal went on to consider the main appeal. This is to afford this court to benefit of its views on the main appeal should it be found that its Ruling was wrong.

Learned counsel for the appellant observed that the subject matter in this suit is different from that in Suit No. KWS/122/91. Relying on 7UP Bottling Company Ltd & 2 ors v. Abiola & Sons Bottling Co. Ltd 2001 6 SC p.73

Odutola v. Oderinde 2004 12 NWLR pt.888 p.574

He further observed that suit No. KWS/122/91 cannot support the plea of estoppel per rem judicatam since it is on appeal. According to him it is thus not a final judgment for the purpose of the plea.

Learned counsel for the respondents/cross-appellants observed that the Court of Appeal was correct in its decision. Reliance was placed on Fadiora v. Gbadebo 1978 3 SC p. 219

Honda Place Ltd v. Globe Motors Ltd 2005 14 NWLR pt.445 p.273

He submitted that suit No KWS/270/89 from which this appeal emanates is caught by the doctrine of Res judicatam


Res judicatam can be explained as follows. If a plaintiff seeks to litigate a claim that has been adjudicated upon all over again, the defendant may answer it with the plea of re judicata. That is to say exactly the same matter has already been decided. Judgment was delivered in suit KWS/122/91 on 1/4/98 by the trial court, while judgment of the trial court was delivered in this suit (KWS/270/89) on 28/7/98.

KWS/122/91 is on appeal to this court. It is SC.88/05 and it has been fixed for hearing on the 21st of January 2012. The question is whether suit No.KWS/122/91 operates as res judicata.

The following must be established for res judicata by way of estoppel as a bar to the adverse parties claim to be sustained.

It must be a judicial decision and it not have been delivered.

See also  J.B Atunrase & Ors. v. Federal Commissioner for Works and Housing & Ors. (1975) LLJR-SC

The court that heard the matter had jurisdiction over the parties and the subject matter.

The decision was final and on the merits

It determined the same question as that raised in the subsequent case.

The parties in the subsequent case were either parties to the earlier case or their privies.

In KWS/270/89, now SC/87/2005 (this appeal) the parties are Abiola & Sons Bottling Co. Ltd V.

7up Bottling Co. Ltd

Ademola Somorin (Trading under the name and style of Ademola Somorin).

First City Merchant Bank Ltd.

In KWS/122/91, now SC.88/2005 (pending in this court and slated for hearing on 21/1/2013) the parties are:


Abiola & Sons Bottling Co. Ltd

Samuel Abiola & Sons Co. (Nig) Ltd.


First City Merchant Bank Ltd

Ademola Somorin

7up Bottling Co. Ltd.

It is clear that the parties in both suits are the same notwithstanding the inclusion of Samuel Abiola and Sons Co. (Nig) Ltd in KWS/122/91. The fact that a new name was included would not make Res judicatam inapplicable. See Ojiako v. Ogueze 1962 1 ALL NLR p. 58

Onisango v. Akrinkunmi & ors 1955-56 WRLR p.39 .

After examining the statement of claim in both suits it is clear that the issue is the assets of Abiola & Sons Bottling Company.

Now, can a judgment on appeal operate as res judicata. Res judicata gives effect to the policy of the Law that parties to a case should not afterwards be allowed to relitigate the same question even if the decision is wrong. See Crown Estate Comrs v. Dorset CC 1990 Ch p. 297 at 305.

This is premised on the fact that a court properly constituted has jurisdiction to decide a case wrongly as well as correctly.

Consequently once a decision is final on the same question and between the same parties it will be binding on them until upset on appeal.

The judgment in KWS/122/91 was delivered before the judgment in KWS/270/89 (from where this appeal emanates). That judgment has not been upset on appeal. It is binding on the parties and it operates as estoppel to bar the parties from relitigating in KWS/270/89. The Court of


Appeal was correct. In the light of the fact that suit KWS/122/91 operates as estoppel per rem judicatam considering the main appeal from KWS/270/89 would amount to an academic exercise as the issues therein have already been decided m KWS/122.91. A judgment on appeal can operate as re judicata provided it has not been upset on appeal. Res judicata operates to prevent this court from hearing the main appeal. Appeal is hereby dismissed.

SC. 87/2005

Leave a Reply

Your email address will not be published. Required fields are marked *