Octs Educational Services Ltd V. Padson Industries Ltd. & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBANDE OGBUINYA, J.C.A (Delivering the Leading Judgment)

This appeal is an offshoot of the judgment of the Kwara State High Court, coram Hon. Justice M. A. Folayan, delivered on 19/02/2008 wherein the respondents’ preliminary objection was upheld.

Flowing from the processes filed, the facts of that case, which led to this appeal, are far from being complicated. The appellant, as a claimant, sued the respondents, as defendants, in suit No.KWS/13/2007 claiming certain reliefs. The parties therein settled the matter out of court. The end product of that settlement was a 5 – paragraph terms of settlement, signed by the parties and their respective learned counsel and filed in court on 28/06/2007, which the lower court pronounced and made consent judgment for the parties on 02/07/2007.

Subsequently, precisely on 08/11/2007, the appellant, as a claimant, instituted another action against the respondents, as defendants in Suit No.KWS/131/2007 in the lower court. In that case, the appellant sought for, inter alia, an order to set aside the consent judgment in the earlier suit No.KWS/131/2007 in the lower court. The appellant followed up the action with two applications, motion ex-parte and motion on notice, in which it prayed for an order of injunction restraining the respondents from disposing its attached chattels.

In a swift reaction to that suit, the respondents filed a notice of preliminary objection wherein they prayed the lower court to strike out the appellant’s suit on grounds that:

”1. The claims sought by the claimant are substantially the same as in the Suit No.KWS/13/2007 already decided by the court.

2. The parties in the previous suit KWS/131/2007 are the same in the present suit.
3. The court lacks jurisdiction to entertain the suit having decided and given judgment thereupon in the previous suit.
4. The suit discloses no cause of action or no reasonable cause of action.
5. The suit is incompetent for not complying with the procedure for commencement of action
6. The court cannot set aside the consent judgment properly and duly entered and delivered.”

As required by law, the notice of preliminary objection was supported by a 21 paragraph affidavit with 12 annexures, exhibits A-L, attached thereto. Also, a written address was filed in support of it. On its part, the appellant filed a 16 paragraph counter-affidavit and a written address in stiff opposition to the preliminary objection.

The preliminary objection was duly heard and argued on 10/01/2008. Thereafter, the lower court delivered a considered ruling, on 19/02/2008, in which it ruled: ”There is merit in the preliminary objection raised by the defendants/objectors. The suit No.KWS/131/2007 as constituted is incompetent, the claimant is stopped from re-litigating the issues already decided in the suit No. KWS/13/07 and in whichever way the court looks at it, either as a judgment obtained by fraud, or the suit is seen as new suit based on earlier facts, or both considered together, the claimant is estopped and his remedy lies in appealing against the consent judgment.

Finally, I hold that this court lacks jurisdiction to entertain suit No. KWS/131/07 as it is constituted. The case is therefore struck out”

The appellant was aggrieved by that decision and it filed a notice of appeal hosting five grounds with their concomitant particulars therein. In keeping with the law, parties filed and exchanged their briefs of argument in the appeal. The appeal was heard on 20/02/2012. Prior to the adoption of briefs of argument by the respective parties, learned counsel for the respondents, Dr. J.O. Olatoke, drew the court’s notice to their notice of preliminary objection, filed on 20/04/2011, which they intended to rely on, with the arguments thereon encapsulated in their brief.

Thereafter, on that same 20/02/2012, the parties adopted their respective briefs of argument. Hence, learned counsel for the appellant, Chief P. A. O. Olorunnisola, SAN, adopted the appellant’s brief of argument and its reply brief of argument, filed on 20/04/09 and 15/02/2012 respectively, as representing his arguments in support of the appeal. He prayed the court to allow the appeal. Similarly, learned counsel for the respondents, Dr. J.O. Olatoke, adopted the respondents’ joint brief of argument, filed on 20/04/2011, but deemed filed on 02/02/2012, as being his arguments against the appeal. He drew the court’s attention to the list of additional authorities which the respondents filed on 20/02/2012. He intimated the court that case numbers 1 and 2, on the list, related to his arguments in paragraphs 4.01 – 4.08 of the respondents’ brief while case number 3 thereon touched on his submissions in paragraph 7.08 of the respondents’ brief. He referred to section 66 (3) and 70 of the Companies and Allied Matters Act in respect of his arguments in paragraph 7.08 of the respondents, brief of argument. He urged the court to uphold the respondents’ preliminary objection or, in the alternative, to dismiss the appeal.

The law mandates me to settle the preliminary objection first, particularly, as it seeks to terminate the appeal in limine on account of lack of jurisdiction. The essence of this is to determine the fortune of the substantive appeal, see Adelekan -vs- Elu-Line NV (2006) 12 NWLR (pt. 993) 33; Uwazurike v. A.G., Fed. (2007) 8 NWLR (pt. 1035) 1; Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421; Odedo v. INEC (2008) 17 NWLR (Pt.1117) 554; B.A.S.F. (Nig) Ltd v. Faith Enterprises Ltd (2010) 4 NWLR (pt. 1183) 104; SPDCN Ltd Amadi (2011) 14 NWLR (Pt. 1266) 157; Efet v. INEC (2011) 7 NWLR (Pt. 1247) 423; F.B.N. Plc v. T.S.A. Ind. Ltd (2010) 15 NWLR (Pt. 1216) 247. In consonance with the law, I will deal with the preliminary objection first.

– The preliminary objection.

As already noted, the respondents raised a preliminary objection to the competence of the appellant’s appeal because the notice of appeal was void and grounds 1, 2, 5 and 7 were incompetent and urged the court to strike out and/or dismiss same. The preliminary objection was predicated on the following grounds to wit: