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Emanuel Onalaja For Himself & Anor V. E. A. Oshinubi (1949) LJR-WACA

Emanuel Onalaja For Himself & Anor V. E. A. Oshinubi (1949)

LawGlobal Hub Judgment Report – West African Court of Appeal

Actions struck out for want of jurisdiction—No appeal—Fresh and identicalactions instituted between same parties also struck out—Inherent jurisdictionof Supreme Court to prevent abuse of its process.

Dismissal of an action for want of jurisdiction is no bar to a plaintiff suing again in any Court which has jurisdiction to entertain the suit, but where an action is dismissed (or, as in this case, struck out) for want of jurisdiction and the same plaintiff institutes a fresh and identical action against the same defendant, the inherent jurisdiction is rightly exercised by striking out the second action.

Case referred to:

(1) London Corporation v. Cox (1867), L.R. 2 H.L. 239; 36 L.T. Ex. 225. Appeal from the Supreme Court of Nigeria.

Williams for Appellant (plaintiff below).

Taylor for Respondent (defendant below).

The following judgment was delivered:

Verity, C.J. In this appeal there is but one point for determination. On 1st July, 1946, two actions were brought by the appellant against the respondent and on 2nd December, 1946, these actions were struck out by Rhodes, J., for want of jurisdiction. Eight days later the appellant instituted identical actions against the respondent. These fresh actions came before Jibowu, J., on 23rd March, 1948, and were also struck out, the learned Judge holding that this Court could not be made a Court of Appeal over the decisions in the previous cases which had not been set aside.

It was submitted on behalf of the appellants that, in so far as the decision of Jibowu, J., was based upon the doctrine of res judicata, this should have been pleaded by way of defence, and not having been pleaded it could not be relied upon by the respondent. For the respondent it was contended that in pleading ” jurisdiction ” the defence of res judicata was sufficiently raised.

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Whatever may be the merits or demerits of pleading want of jurisdiction by the mere use of the solitary word “jurisdiction ” in the statement of defence (and, in my view, it has no merits of any kind) it requires great hardihood to argue that the use of that word states the matter constituting estoppel per rem judicatam in such a manner as to show that the party pleading relies upon it as a defence, for of course it does nothing of the sort, and no party reading the word “‘jurisdiction ” appearing by itself in a defence could possibly be expected to imagine that it was intended to show that the party so pleading intended to rely upon a .defence of estoppel, which has nothing whatever to do with jurisdiction.It is to be observed, however, that the learned Judge in the course of his brief judgment refrained from using either the word ” estoppel ” or the phrase “res judicata ” and I conclude that in striking out these actions he was exercising the inherent jurisdiction of the Court to dismiss proceedings which are shown to constitute an abuse of its process, for, as stated by the learned author of Spencer Bower on Res Judicata (1924 Edition, p. 211),

to base uses of a bare right to re-open matters already litigated in cases where no estoppel per rem judicatant … has been strictly established.”

The learned author adds:—

” Thus, where estoppelper rem judicatasn has not been sufficiently pleaded or made out but nevertheless the circumstances are shch as to render re-agitation of the questions formerly adjudicated upon a scandal and an abuse, the Court will not hesitate to dismiss the action.”

The question arises, therefore, whether in the present case the learned Judge rightly exercised his inherent jurisdiction. It is apparent that estoppel per rem judicatam was not sufficiently pleaded and it may even be open to doubt whether it was made out in so far as the previous decisions did not adjudicate the substantive issues raised by the suits but merely decided that the Court had no jurisdiction to adjudicate.

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No authority directly in point was cited by Counsel, nor have I been able to refer to any. It is clear that the appellants are not estopped from litigating the Matters at issue in the present suits before a Court of competent jurisdiction, if they can find one, for dismissal of an action for want of jurisdiction is no bar to a plaintiff suing again in any Court which has jurisdiction to entertain the suit (London Corporation v. Cox (1)).

The question here is whether, when an action has been struck out for want of jurisdiction only, another identical action can be brought in the same Court, and whether if it is so brought the Court is justified in exercising its inherent jurisdiction by dismissing it as an abuse of the process of the Court.

It is true that the appellant may thus be debarred from litigating the substantive issues between him and the respondent in the Supreme Court although they have never been adjudicated therein, though it is possible as suggested by Counsel for the respondent in the Court below that there is an appropriate Native Court in which action might be brought. It is equally true, however, that the decisions of Rhodes, J., were open to appeal and that no appeal was brought therefrom. Counsel for the appellants stated that no such appeal was brought because the learned Judge stated a further ground for his decision in regard to which the appellant was advised the appeal might fail. This may or may not have been a good reason, but the fact remains that no appeal was brought and that the decisions of Rhodes, J., have not been set aside.

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In view of the fact that the decisions of the Court below preclude the parties from seeking in the Supreme Court a determination of the real issues in dispute, it is with some reluctance that I have come to the conclusion that Jibowu, J., rightly exercised his inherent powers in striking out these actions, for it appears to me that, if where a Judge has held that the Supreme Court has no jurisdiction this point may in identical proceedings be argued before another Judge who might hold the same view, there would be nothing to prevent the unsuccessful plaintiff from bringing a fresh suit before every Judge who might thereafter preside over the Supreme Court in that Division in the hope that eventually he might find one who held a different view, until at last his claim was barred by the Statute of Limitations.

It is obvious that such a course of proceedings would constitute a scandal and an abuse of the process of the Court, yet if one such attempt were to be permitted I do not-see how its repetition could be prevented.

I think, therefore, that the learned Judge rightly struck out the proceedingin these suits, and that this appeal should be dismissed with costs, fixed at i14 11s. Od.


Appeal dismissed.

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