Ahmadu Makun & Ors V Federal University Of Technology, Minna (2007) LLJR-SC

Ahmadu Makun & Ors V Federal University Of Technology, Minna (2007)

LAWGLOBAL HUB Lead Judgment Report

O. O. ADEKEYE , J.S.C. 

This appeal is against the judgment of the Court of Appeal Abuja Division delivered on the 25th of April 2002. The appeal argued before the Court of Appeal Abuja Division was against the judgment of the Niger State High Court sitting at Minna in Suit No. NSHC/MN/57M93 delivered on the 13th day of August 1993. The background facts of the case are that the appellants before this court as plaintiffs instituted an action at the Niger State High Court sitting at Minna in a representative capacity for themselves and on behalf of the entire members of Garatu, Gidan Kwano, Lunko, Ekpigi, Kwaida, Legbe and Bakin Pumpo villages that they are entitled to compensation for the acquisition of their entire land for public purpose, that is education, against the defendants now respondents in this appeal-the Federal University of Technology Minna, the Secretary of Land use and Allocation committee, the Director- General Lands, Survey And Town Planning Department in Suit No NSHC/MN/57M/93 filed on the 13th day of August 1993.

In their Writ of Summons and Paragraph 50 of their Statement of Claim the plaintiff/appellant claimed as follows:

(a) Declaration that the plaintiffs had at no time given authority to anyone to waive the sum of N 13.29 Million compensation for acquisition of their land and landed properties by the 1st Defendant and that they are entitled to the balance of N 13.29 million, the meeting of 7/8/84 being of no effect.

(b) An order on the 1st defendant to pay the sum of N 13.29m to the plaintiffs.

(c) An order referring the determination of payable compensation to Land Use and Allocation Committee (Niger State) by virtue of sections 30 and 47(2) Land Use Act.

The defendants/Respondents filed their defence, while the 1st defendant/respondent in addition filed a Notice of Motion praying the court for the following orders:

(a) Setting down for hearing at once the preliminary objection raised in the Statement of Defence in this suit particularly paragraphs 8 and 9 thereof

(b) Dismissing the suit on grounds of law viz:

(a) By way of preliminary objection that 1st defendant shall contend that this legal action is unsustainable on grounds of Res judicata

(b) Limitation of Action

(c) Abuse of court process

The plaintiffs/appellants resorted to legal action as the various communities/villages who owned, inhabited and cultivated the wide expanse of land acquired by the Niger State Government for the Federal university of Technology Minna. In the normal course of events they were the people entitled to be paid compensation for their land and the economic crops thereon. The appellants engaged the services of Messrs Yisa and A. H. Gimba of Summit Chambers Minna as their solicitors to negotiate with the authorities to facilitate the payments of the compensation. The appellants and Summit Chambers executed an agreement dated 23/1/84 to this effect. The appellants also appointed an Estate Valuer, Mr. Okolo of Okolo & Co. to determine the value of the compensation they were entitled to be paid by the authorities, which the Estate Valuer assessed as N19.76 million. The Federal University of Technology Minna through their Estate Valuer returned a value of N18.89 million. At a meeting of the Body set up on the payment of compensation for the University held on the 7th of August 1984, with Mr. Okolo in attendance, and Mr. A. H Gimba of Summit Chambers, it was argued that the total amount to be released by the acquiring authority would be N6.million – that is N5.6million for compensation (fees inclusive) and N.4 million for resettlement exercise vide Exh. FUT B. Summit Chambers claimed that they waived the sum of N13.29m and accepted only N5.6 for the appellants in the exercise of the power of attorney supposedly executed between the solicitors, and the appellants. This sum of N6 million was paid to the appellants through their solicitors, Summit Chambers. The appellants were still living with the expectation that the balance of N13.29 million would be released to them in the near future until the picture became clear that their solicitors had waived the balance of N13.29 million at a meeting held on the 7th of August 1984.

The Respondents predicated their preliminary objection on order 23 Rules (2) and (3) of the High Court Civil Procedure Rules Revised laws of Niger State 1989 and Section 83(2) High Court Law Cap 53 Revised Law of Niger State 1989. The appellants had however prior to this suit No NSHC/MN/57M/93 pursued two similar suits before two different judges of Niger State High Court in suits Nos. NSHC/MN/47/89 and NSHC/MN/160M/92. The two suits were variously dismissed by the two courts.

The objections were duly argued by counsel to the parties. In a considered ruling of the trial court delivered on the 13th of May 1992, the learned trial judge upheld the submission that the doctrine of res judicata applied to the substantive suit and furthermore that although the court had jurisdiction to the hear the prayer (a) of paragraph 9 in the Statement of Claim as to whether or not Summit Chambers had authority to waive N13.29 million on behalf of the plaintiffs, the court does not have jurisdiction to determine prayers (b) and (c) of paragraph 9. The learned trial judge subsequently declined jurisdiction to hear the entire suit.

The plaintiffs/appellants aggrieved by the decision of the trial court appealed against it to the Court of Appeal Abuja and filed three grounds of appeal which without their particulars read as follows –

1) The learned trial judge erred in law when he held that Res judicata applied (sic) in this case.

2) The learned trial judge erred in law when he held that sections 30 and 47 (2) of the Land Use Act ousted the jurisdiction of the High Court as to the reliefs sought by the appellants.

(3) The learned trial judge misdirected himself by relying on the cases of Akinlare v. Akinola (1994) 4 SCNJ 30 at Pg.43 and Agbu v. Odofu (1992) 3SCNJ 161 at Pg. 168 to decline jurisdiction when these cases are not on all fours with the matter at hand.

The Court of Appeal Abuja heard the appeal in their judgment held that ‘However, I have already indicated that the High Court of Niger State in Suit No NSHC/47/89 have previously considered the issue of the validity of the documents which the appellants conferred authority to Summit Chambers to deal with the issue of the compensation received by them and has ruled in favour of the validity thereof which has not been set aside or overruled. In consequence that decision stands and must be treated as valid -see page 45 of the Record of Proceedings’

Therefore the finding by the learned trial court in the case on appeal that it had competence to hear prayer (a) as to whether or not summit chambers have authority to waive N13.29m on behalf of the plaintiff must have been made per incuriam since the court had given due respect to all other earlier findings and decisions of the two earlier courts of which it was aware and treated them as res-judicata.

In the circumstance I confirm my earlier decision in this regard on the issue that the doctrine of Res judicata also applied to the issue whether or not Summit Chambers had valid authority to deal with the issue of compensation for land on behalf of the appellants. Having decided all the three issues in this appeal against the appellant I dismiss the

The plaintiffs/appellants were dissatisfied with the foregoing decision, and this prompted a further appeal to this court.

Parties exchanged briefs. When the appeal was heard on the 5th of April, 2011, the appellants adopted and relied on their briefs filed on 14/5/03 in which they distilled two issues for determination from the two grounds of appeal filed as follows –

(1) Whether the issue of the competence of the High Court and of the land use and allocation Committee to determine the present claims of the plaintiffs have been adjudicated upon in the two earlier suits and

(2) Whether the lower court was right when it held that the trial courts decision that it had jurisdiction to determine the 1st leg of plaintiff s claim was made per -incuriam.

The 1st respondent adopted and relied on the 1st Respondents brief filed on 18/12/03, wherein two issues were formulated for determination, which are –

(1) Whether the competence of the High Court and the Land use And Allocation Committee to determine the extent of the powers of summit Chambers in relation to compensation paid had been adjudicated in two previous suits numbers NSHC/MN/47/89 and NSHC/MN/160M/92.

(2) Whether the lower court was right when it held that the decision of the trial court that it had jurisdiction to determine the first leg of the plaintiffs claim was made per incuriam

The 2nd – 3rd Respondents adopted and relied on their joint brief deemed filed on 2/12/10 where they settled two issues for determination as follows –

(1) Whether the Court of Appeal was right in holding that the judgment of Dalhatu Adamu J. in suit No NSHC/47/89 and Musa Dattijo Mohammed J. in suit NSHC/160M/92 constitutes res judicata in this case.

(2) Whether the Court of Appeal was right in holding that the trial courts decision that it had jurisdiction to determine whether the appellants had at any time given authority to anyone to waive the sum of N 13.29 compensation for acquisition of the appellants land and landed properties by the 1st respondent and that they are entitled to the balance of N 13.29 million, the meeting of 7/08/84 being of no effect, was made per incuriam.

Since all the parties raised identical issues for the determination o f this appeal, I intend to be guided by the issues formulated by the appellants.

Issue One

Whether the issue of the competence of the High Court and of the Land Use and Allocation Committee to determine the present claims of the plaintiffs have been adjudicated upon in the two earlier suits. The appellant through their learned counsel Ibrahim Isiyaku – argued and submitted that the appellants commenced suit No SHC/47/89 claiming the balance of their compensation a sum of N13.29, which the respondents disputed and pleaded that the amount claimed had been waived by the solicitors acting for the plaintiffs. The respondents also invoked sections 30 and 47 (2) of the Land Use Act to oust the jurisdiction of the court in matters relating to compensation and to vest such power only in the land use allocation Committee. The court declined jurisdiction and made an order for reference to the Land Use And Allocation committee. The appellants wrote to this committee which refused to sit as a result of which the appellant filed another suit No NHSC/160/92 for an order of mandamus to compel the committee to sit. The court declined to grant this order of mandamus because the issues made out from the affidavit evidence filed by both parties did not relate to the reliefs sought.

This prompted the appellants to commence another suit No NSHC/MN/57/93 before the High Court. The learned trial judge found that – what had not been included in the suits before Justice Dalhatu and Justice Dattijo Mohammed is the leg of the claim before this court i.e whether summit Chambers have the authority of the plaintiff/respondents to waive N13.29 million. The learned trial judge held that he had jurisdiction to determine the 1st leg i.e the claim in para 9(a) of the Statement of Claim but that he was incompetent to determine either of the other alternative reliefs on the grounds that the latter were caught by Res judicata. The Court of Appeal held that the suit was caught by Res judicata and dismissed the appeal. The learned counsel maintained that the two earlier suits were not heard on the merit. None of the suits determined the competence of the High Court to look into whether a solicitor had been vested with power to waive his clients compensation. The learned counsel also submitted on this issue that where a trial court did not give any decision one way or the other on the claim before it even if directly in dispute the case will not have the effect of estoppel. The counsel referred to cases in support of this issue Ezeokonkwo v. Okeke (2002)11 NWLR Pt. 777 pg. 1, Ezenwa v. Kareem (1990) 21 NSCC Pt. 2 Pg. 284, Nwokedi v. Okugo (2002) 16 NWLR Pt. 794 Pg. 441.

The learned counsel for the 1st respondent submitted that if there had not been a waiver of N13.29 million the appellant would not have been in court to claim the balance of that sum. The waiver of N13.29 million formed the basis of the cause of action in the two previous suit particularly the reliefs sought. In all the cases filed by the appellant before the High Court of Niger State, suit Nos NSHC/MN 57M/93, NSHC/MN/47/89 AND NSHC/MN/160M/92 the facts are the same. All the three judges in their respective decisions alluded to the fact of compensation of N13.29 million, the appointment, the extent of authority of Summit Chambers and waiver thereof. The judges have rightly invoked section 83 (2) High Court Law Cap 53 Revised Laws of Niger State 1989, and order 23(2) and (3) of the High Court Civil Procedure Rules Cap 54 1989 Revised Laws of Niger State to decide that suit number NSHC/MN/57/93 i.e caught by res judicata. This court is urged to affirm the position. The orders of the two learned judges are final by virtue of section 318 of the 1999 constitution.

The learned counsel for the 2nd and 3rd respondents in his submission on this issue made reference to numerous decisions of this court for the definition and the conditions required to sustain or plea of estoppel per rem judicatam. He went through all the five conditions in the light of the facts of the cases in NSHC/47/89 before Dalhatu Adamu J, and NSHC/160M/92 Mohammed J. to conclude that the court had jurisdiction to entertain the suits, while the parties in the suits are the same with the parties in the present suit which resulted to this appeal. The 1st respondent held also that the subject-matter and issues joined by the parties had been adjudicated upon by courts of competent jurisdiction. The decision of the courts in suits No NSHC/47/89 and NSHC/160M/92 are final decisions, even where a court declined jurisdiction. Where such decisions were never appealed against they amount to final decision for the purpose of Res judicata. The same Court of Appeal held that the two suits constitute res judicata. The 2nd and 3rd respondents are now urging this court to hold that the concurrent findings of fact of the two lower courts, that the judgments of Dalhatu Adamu J. in suit No NSHC/47/89 and Musa Dattijo Mohammed J. in Suit No NSHC/160M/92 constitutes res judicata in this case and consequently dismiss the appeal. Cases cited are:

Igwego v. Ezeugo (1992) 6 NWLR Pt. 249 Pg. 561,

Osunrinde v. Ajamogun (1999) 6 NWLR Pt. 246 Pg. 156,

Udeze v. Chidebe (1990) NWLR Pt. 125 Pg. 141,

Okukuje v. Akwido.(2001) 3 NWLR Pt. 700 Pg. 261,

Ntuks v. NPA (2007) 13 NWLR (Pt. 1051) Pg. 292,

Ezenwa v. Kareem (1990) 3 NWLR Pt. 138,

Agbogunlari v. Depo (2008) 3 NWLR Pt. 11074) Pg. 217,

Balogun v. Ode (2007) 4 NWLR Pt.1023 Pg.l,

Abubakar v. B. O. &A. P. Ltd (2007) 18 NWLR Pt. 1066 pg. 319,

Ojo v. A. G. Oyo State (2008) 15 NWLR Pt. 1110 Pg. 309.

The central issue and bone of contention is a claim for the balance of a sum of N13.29 million payable to the appellants as compensation for the acquisition of their land by the 1st respondent. The amount became due following a waiver by their counsel Summit Chambers in the meeting where the decision as to the amount due to appellants as compensation was taken on the 7th of august 1984. I have gleaned through the cause of action in each of the claim before the three judges of the Niger State High Court of Justice in suit Nos NSHC/MN/47/89, NSHC/MN/160M/92 and NSHC/MN/57/M/93, they all relate to the amount of compensation payable to the appellants as villagers eking out their livelihood on the land acquired by the Niger State Government and other relevant authorities as the site for the Federal University of Technology Minna. That may be seen as the fundamental and underlying issue but interwoven and inseparable for the consideration of that main issue are other two important factors:

The extent of the authority given to the counsel they retained for the purpose of this acquisition as to:

(a) The amount of compensation collected by their counsel Summit chambers

(b) The amount waived pursuant to the authority granted thereof.

The facts and figures required to answer the foregoing issues are the same. They are undoubtedly the aggregate of facts which culminate into the appellants cause of action. In paragraphs 3 and 4 of the Statement of Claim at page 12 of the Record of Appeal the appellants pleaded as follows –

Paragraph 3

‘The plaintiffs by an agreement Messers Summit Chambers to cover the amount of the valuation of their landed properties put by the defendants valuer, Messers Alagbe and Partners at N18.89.

Paragraph 4

4(a) Specifically by an agreement dated 23/1/84 accredited representatives of the plaintiff (Abubakar Ahihu Bosso, KesdiriS/Homa Bossa, Doma Makama Ahmadu Makun, Dan Mallam Lunko) appointed A. M. Yisa and A. H. Gimba both of the Sumiit Chambers to represent them in matters concerning the recovery of the said compensation.

(b) To achieve the said recovery, plaintiffs conferred on the two solicitors power to take necessary steps including action in a court of law to recover the compensation.

(c) About N5.6m was recovered and paid to plaintiffs who after waiting in vain for the balance of N13.29m were then informed that they had waived same at a meeting on 7/8/84. Plaintiffs then instituted suit No NSHC/47/91 against 1st defendant and Honourable Commissioner, Ministry of Land and Survey

Paragraph 6 plaintiffs shall contend that:

(a) they at no time waived N13.29m either expressly or constructively

(b) they empowered solicitors by an agreement signed by five of them to recover compensation only.

(c) they did not empower anyone or indeed any meeting to, on their behalf waive or compromise any claim entitled to them and compensation by virtue of the said agreement or the purported Power of Attorney

(d) The 1st defendants valuer had valued compensation due to them at about N18.89 while their own valued same at about N19.76m and at worse they are entitled to N18.89 valued by the 1st defendants own valuer

(e) No one informed them of nor were they invited to (and did not attend) the meeting of 7/8/84 which discussed and took decision on their constitutional right.

(f) It was not within the province of anybody or group of persons outside the land use and allocation committee to decide on payable compensation by waiving plaintiffs right for whatever reason or interest’.

The facts of the case of the appellants are that:

(1) Five representative of the plaintiffs signed an Agreement appointing the solicitors to recover the amount of compensation payable to them

(2) The agreement empowered the solicitors to recover the said amount vide all necessary steps including court action.

(3) That the valuers appointed by the university made a valuation of N18.89m as the amount payable to the plaintiffs as compensation

(4) That out of this amount the solicitors recovered and paid to the plaintiffs the sum of N5.6m to leave a balance of N13.29m.

(5) That having waited in vain for the said balance, the plaintiffs made enquires and were informed that the solicitors had, at a meeting held on 7/08/84 waived the balance on behalf of the plaintiffs.

The appellants decided to enforce their right by civil action.

In the suit No NSHC/MN 47/87 the appellants claimed reliefs as follows –

N13.29m as balance of compensation Interest on (i) at 30 % per annum. On compensation sum for 7 years – N27.93m General Damages N.03 million Total: N41.03 million

In the course of the trial, the respondents raised a preliminary objection to the effect that –

(a) The court cannot competently entertain the suit in view of sections 28, 29, 30 and 47 of the Land Use Act which when read together show that this court lacks jurisdiction to enquire into the amount of compensation paid on land compulsorily acquired by the defendants.

(b) That the suit is statute barred in view of section 7 of the Limitation Decree 1966.

The learned trial judge raised four issues which were exhaustively considered. They are:

(a) Whether or not there was a waiver on the part of the respondents

(b) Whether or not this court lacks jurisdiction to entertain the suit i.e the substantive suit.

(c) Whether or not this suit is statute barred and

(d) Whether or not the 2nd applicant can avail himself of the provisions of the public officers protection law.

The court considered the averments of the appellants in paragraphs 4, 6, and of the Statement of Claim. The learned trial judge made findings to the effect that:

‘It should be pointed out that the respondents were represented at the meeting by both their valuer Mr. Peter H. C. Okolo who represented the firm of Okolo, Okolo & Co as well as Mallam A. H. Gimba who represented Summit Chambers who acted as the solicitor for the respondents. The denial on behalf of the respondents in the counter-affidavit to the effect that they (the respondents) did not authorize anybody to represent them at the meeting in question have been effectively and sufficiently controverted in the reply to the counter affidavit in which the copy of the power of attorney given by the respondents to the said counsel as well as the certificate and stamp of the Deeds register and annexed. The denial is therefore discountenanced. It is hereby held that Summit Chambers were legally appointed by the respondents and they represented the later at the meeting of 7/8/84.’

In the suit No NSHC/47/89 the trial court considered and determined the issue of the authority of summit chambers to represent and act on behalf of the appellants in respect of the compensation at the meeting of 7/8/84. The court declined jurisdiction on the ground that sections 30 and 47 (2) of the land Use Act ousted the jurisdiction of the High Court in matters relating to compensation and vested same only in the Land use and Allocation Committee.

In the suit NSHC/MN/160M/92 the appellants were praying the court for an order

(a) Of mandamus compelling the Land use allocation Committee to determine the extent of compensation payable to the appellants.

During the hearing of the application the learned trial judge identified the issues made out for determination from the facts before him in the affidavit evidence to be

(1) Whether the applicants had donated power of attorney to summit chambers in particular to deal the way they did regarding to the compensation payable to the applicants.

(2) Whether it was in exercise of such power that Summit Chambers negotiated and collected for and on behalf of the applicants the sum of N5.6m only as compensation.

Before declining jurisdiction in the application for reason that the affidavit evidence filed by both parties did not relate to the reliefs sought, the learned trial judge held in respect of the two foregoing issues as follows:

‘These issues, to mind (sic) cannot form the basis of the kind of public duty assigned the Land Use and Allocation Committee and the performance of which it can be compelled to carry out the dispute disclosed by the evidence before me squarely relates to the extent of authority given to Messrs Summit Chambers as attorneys to the applicants in negotiation pertaining to compensation accruable to applicants from the Federal university of Technology, Minna, for Land and property by the latter’

In view of the fact that the trial court in suit No NSHC/160m/92 ruled that he could not determine the extent of the solicitors authority, the plaintiffs commenced the suit No NSHC/MN/57M/93 before the High Court and claimed:

A declaration that plaintiffs did not authorise any one to waive the sum of N 13.29.

An order either compelling the university to pay the said balance or referring the determination of same to the Land Use and allocation committee.

The leaned trial judge in this suit held as follows:

‘I was privileged to go through Exhibit A and C. the rulings of Justice Dalhatu and Justice Dattijo. I have discovered that ruling in those two cases namely whether or not this court is competent to determine the issue of compensation to be awarded by Land Use and allocation committee as well as compelling them to sit by means of order of mandamus to determine the compensation payable these are the present claims as contained in paragraph 9(b) and 9(c) of the Statement of Claims. Vide page 98 lines 4 – 12 of the Record of Appeal. The learned trial judge further contended at page 99 hereafter 5 – 13 of the Record of appeal that:

‘A clear look at Exhibit A clearly shows that the parties are the same subject matter are the same, with the present suit now before me and the ruling that he had no-jurisdiction to handle the case before him is a valid and subsisting judgment unless it is set aside by the higher court to the best of my knowledge, this has not been done so the order of justice Dalhatu not having jurisdiction is a valid order of which I am not competent to reverse.’

The learned trial judge finally held that ‘ I wish to point out that this court cannot assume jurisdiction on the 1st leg of the prayers and abandon the 2nd and 3rd prayers as contained in paragraphs 9(b) and (c) of the statement of Claim. I cannot assume jurisdiction in part.

The Court of Appeal in the findings of fact held that:

(a) ‘I therefore find that the parties in all three cases are the same.’

(b) In the case under appeal, it is apparent that the issues posed for the determination of the court were again

(i) Issues of jurisdiction for compensation

(ii) For reference to the Land use and allocation Committee as well as the validity or competence of the authority given to solicitors-Summit Chambers in respect of the instruction on the claim for compensation. I also find that these too, have been effectively decided in the two suits.

(iii)The decisions of the two courts in respect of the two earlier suits which have not been appealed against to a higher court or been set aside by either of those two courts must be considered final.’

Vide page 224 lines 33 – 36, and page 225 lines 1 – 2 and lines 7 – 9 of the Record.

The poser now is whether the Court of Appeal was right in holding that the judgments in suit No NSHC/47/89 and in suit NSHC/160M/92 constitute res judicata. The question cannot be answered without a proper insight into the plea of estoppel per Rem judicatam or estoppel by Record. Estoppel per rem judicatam or estopel of record arises where an issue of fact has been judicially determined in a final manner between the parties or their privies by a court or tribunal having jurisdiction in the matter and the same issue comes directly in question in subsequent proceedings between the parties or their privies. It effectively precludes a party to an action, his agents and privies from disputing as against the other party in any subsequent suit, matters which had been adjudicated upon previously by a court of competent jurisdiction between him and his adversary involving the same issues.

Adone v. Ikebudu (2001) 14NWLR Pt. 733 Pg. 385,

Ukaegbu v. Ugoji (1991) 6 NWLR Pt. 196 Pg 127,

Ezeudu v. Obiagwu (1986) 2 NWLR Pt.21 Pg. 208,

Osunrinde v. Ajamogun (1992) 6 NWLR Pt. 246 Pg 156,

Iga v. Amakiri (1976) 11 SC 1,

Udeze v. Chidebe (1990) 1 NWLR 3 (Pt. 125) 141,

Lawal v. Dawodu (1972) 1 ALL NLR Pt. 2 Pg. 270,

Ezewani v. Onwordi (1986) 4 NWLR Pt. 33 Pg. 27,

Fadiora v. Gbadebo (1978) 3 SC 219.

There are two categories of estoppel per rem judicatam. They are –

(1) Cause of Action Estoppel – This precludes a party to an action from asserting or denying as against the other party, the existence of a particular cause of action-the non-existence or existence of which has been determined by a court of competent jurisdiction in a previous litigation between the same parties. This is because it is against the rule of public policy for anyone to be vexed twice on the same ground and for one and the same cause of action and or the same issues.

SC. 241/2002