Fidelis Mgbenwa & Ors V. Kingsley Nnagu & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment)

The motion seeking the High Court of Rivers State (coram G.C. Aguma, J) to strike out the suit no OHC/45/2008 for being incompetent on the ground that the claimant, now Respondent, was estopped, or the principle of estoppel per rem judicatam, from bringing the suit no OHC/45/2008 against the Appellants, who were the 1st-5th Defendants, was argued on 12th May, 2009.

The Appellants had contended that the subsisting judgment in the suit no PHC/80/1972 operated to bar the Respondent from bringing the suit no OHC/45/2008 against them.

The learned trial Judge, G.C. Aguma, delivered a very short bench ruling and dismissed the application. The Ruling at pages 76 and 77 of Record of Appeal is as follows:

“RULING

It is clear from paragraph 5 of the counter affidavit that the judgment relied on by the Applicant is not being challenged. Rather the Claimant/Respondent are seeking for their right as derivable from the same judgment.

In paragraph 7 of the counter affidavit, it is deposed that the Claimant/Respondent are not re-litigating ownership of the land. These averments have not been challenged.

I have seen from the records and the judgment attached in support of preliminary objection i.e. PHC/80/1972. It is obvious that the parties sued individually whereas in the present suit, the parties are in a representative capacity.

Again, I do not even find the names of the parties in the present suit in the one that is annex to the affidavit in support of preliminary objection.

On the whole, I do not find the parties to be the same. The doctrine of res judicata can not therefore apply.

The objection is misconceived and therefore dismissed. The case is adjourned to 1/6/09 for mention.

(Sgd) G.C. AGUMA),

JUDGE

12/5/2009.”