National Directorate of Employment (NDE) V. Mrs. Abimbola Folasayo & Ors (2007)

LawGlobal-Hub Lead Judgment Report

AUGIE, J.C.A.

The Appellant, a statutory body established to give loans to unemployed Graduate Youths, was granted leave by the High Court, Ibadan, Oyo State to file an action under the undefended list against the Respondents, wherein it claimed N12, 403.66, being balance of the loan granted to the 1st Respondent and guaranteed by her husband, the 2nd Respondent and the 3rd Respondent, and interest on the sum at the rate of 9% per annum from January 1996.

The Respondents filed their Notice of Intention to Defend supported by a 12 paragraph Affidavit and a Further Affidavit of 6-paragraphs, to which was attached as Exhibit “AO1” – a Consent Judgment dated 24th January 1996, which the Appellant had obtained in an earlier action under the undefended list against the 1st Respondent and two other Defendants in Suit No. 1/596/95.

They later filed a Motion on Notice praying the lower Court for “an order dismissing/striking out the – suit for abuse of the process of the Court.

The Motion was supported by a 13-paragraph Affidavit wherein they averred-

7. That the claim in the said Suit No. 1/596/95 was the same with the present suit now before this Court.
8. The Defendants in Suit No. 1/596/95 disputed the Plaintiff’s claim under “Administrative and legal Charges”
9. That the Defendants pleaded liable to the sum of N26, 707.38K, which the Plaintiff consented to.
10. That on 24th January 1996 Judgment was entered against the Defendants in the sum of N26,707.38k.
11. That the Judgment (attached as Exhibit A) was a consent Judgment.
12. That the plaintiff is estopped from bringing the present action.

The Motion came up for hearing on the 9th of April 1997, and after counsel addressed the court, the learned trial Judge, M.O. Adio, J., held as follows-

“I therefore accept the submission of Chief Odunlade that the judgment of 24/1/96 is a consent judgment and the parties are estopped from relitigating the issue. Even though the 2nd & 3rd Defendants are different in the two case, the Plaintiff cannot split out action into several action on the same issue. It is trite that the court is under a duty to discourage proliferation and prolongation of disputes. In my view the issue in this case has been put to sleep in the judgment in I/596/95 of 24/1/96. the Application succeeds and the action is accordingly struck out. No order as to cost.”

Being dissatisfied with the Ruling, the Appellant appealed to this court with a Notice of Appeal containing two Grounds of Appeal and in the Appellant’s Brief settled by Prince Abioye A. Oloyede Assanike, it was submitted that the sole issue that calls for determination in this appeal is simply whether the-

“Judgment entered in I/596/95 was a consent judgment and constitute estoppel between the parties”.

The Respondent however submitted in their own Brief of Argument settled by Chief Obiyera Odunlade that the Issues for Determination are as follows-

(1) Whether the Appellant can bring a fresh case after the determination of suit I/559/95.

(2) Whether the Appellants could re-litigate on the subject matter of suit I/559/95 in which suit final judgment had been delivered.

In my view, the Respondents merely split the appellant’s issue into two; there is not much difference in the points canvassed that cannot be covered by the Appellant’s Issue, I will therefore adopt it in dealing with this appeal. The Appellant referred the court to the judgment in suit No. I/559/95, and citing Ajakaiye v. Mil. Gov. of Bendel State (1993) 9 SCNJ 242 submitted that the plea of estoppel cannot avail the Respondents because though the 1st Respondent was the 1st Appellant, the action was withdrawn against Oba Okunade Sijuade, Oni of Ife and Chief (Mrs.) Teju Alakija – the 2nd & 3rd Defendants in that case; that the judgment was not a consent judgment, citing Osobajo v. Amoda 91992) 7 SCNJ 317; that the sums being claimed in the two suits are different; and going in the alternative, that the judgment giving rise to estoppel can only be against the 1st Appellant.

The Respondents on their part simply argued that the parties in both Suits are the same; that the claims in both Suits are the same; and that the Appellant cannot split its action to several actions on the same Issue since the Issue in Suit No, I/413/96 has been put to sleep by the Judgment in Suit 1/596/95.