Comrade Oyinlola Adesoji & Ors V. Federal University of Technology & Ors (2016)

LawGlobal-Hub Lead Judgment Report

SOTONYE DENTON-WEST, J.C.A.

This is an appeal against the Ruling of the Hon. Justice G. C. Okeke of the Federal High Court, Akure delivered on the 2nd day of March, 2011.

On the 4th June 2009, an action was commenced by the Plaintiffs, now Appellants vide a writ of summons in the suit FHC/AK/CS/35/2009, the Defendants, now Respondents, in response, filed an application seeking a dismissal of the case of the plaintiffs/Appellants in limine. The grounds for the dismissal were on the premise that the Federal High Court lacked jurisdiction in the matter as the case had been litigated upon before.

The lower Court delivered its Ruling on 22/3/2011, striking out the entire suit for being an abuse of Court process and having been robbed of jurisdiction.

The Plaintiffs being dissatisfied with the said judgment of the trial Court filed a Notice of Appeal challenging the whole Ruling as contained on pages 88 – 90 of the record of proceedings.

The parties filed and exchanged their respective briefs in this appeal.
The plaintiffs/Appellants’ counsel in his Brief of Argument dated 22/07/2011

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and filed 24/8/11 formulated two (2) Issues for determination reproduced as follows:
(1) whether the issue of Estoppel per rem judicata can be decided through motion without being pleaded vide statement of Defence.
(2) Whether my respected learned Judge of the lower Court could raise the issue of abuse of Court process suo muto without allowing parties to address on it.

On the part of the Respondents??? counsel, a lone issue was submitted for determination in their Respondents’ Brief of Argument dated and filed 26/03/2015. The lone issue reads thus:
(1) Whether the learned Judge of the trial Federal High Court was right or not in holding as His Lordship did, that the action brought by Appellants as Plaintiffs constitute an abuse of the process of Court; the issue(s) raised therein having been determined once by the Court.

In the determination of this appeal, the issues raised and argued by the Appellants’ counsel will be adopted for covering the grounds of this appeal. Thus the issues for determination in this appeal are:
(1) Whether the issue of Estoppel per rem judicata can be decided through motions being pleaded vide

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Statement of Defence.
(2) Whether my respected learned Judge of the lower Court could raise the issue of abuse of Court process suo muto without allowing parties to address on it.
ARGUMENT OF ISSUE 1
Whether the learned Judge of the trial Federal High Court was right or not in holding as His Lordship did, that the action brought by Appellants as Plaintiffs nnstitute an abuse of the process of Court, the issue(s) raised therein having been determined by the court.

At the hearing on 08/03/2016, counsel for the Respondents, O. AGBONIKA applied for a colleague – O. O. OLABIWONNU to address the Court, and without any objection from the other party, the Court granted leave for the counsel to proceed with the address when necessary.

Thereafter, M. P. OGELE (Esq.), counsel for the Appellants sought for the adoption of the Appellants’ Brief of Argument dated and filed on 26th day of February 2015, with a Reply Brief dated 19/05/2015 and filed on 21/05/2015. This Court was urged to set aside the Ruling and order a retrial of the matter at the lower Court.