Oilserv Limited V. Global Gas And Refining Limited (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the Rivers State High Court of Justice, Port Harcourt Judicial Division delivered on the 22nd of May 2009 wherein the suit no. PHC/824/2008 was dismissed.

By an application filed on the 19th of September 2008, the Respondent at page 39 of the record sought an order of the lower court to dismiss the suit for want of jurisdiction on the ground that the suit is caught by the doctrine of estoppel per rem judicata.

In support of the application, Respondent filed an affidavit of ten paragraphs. The facts deposed therein, are to the effect that, the Appellant had in PHC/98/2008 between Oilserv Limited v. Global Gas and Refining Limited, prosecuted the Respondent in respect of the subject matter of this litigation and did obtain judgment against the Respondent in PHC/98/2008 before Diepiri J.

The Respondent averred that they had even paid the judgment debt in PHC/98/2008 to the Appellant. The Respondent annexed to the affidavit a certified true copy of the judgment of the court and other processes filed in suit no. PHC/98/2008: Oilserv Ltd v. Global Gas & Refining Ltd by the Appellant.

The Appellant in opposing the application, filed a counter-affidavit of eleven paragraphs on the 23rd September 2008. The facts of the counter affidavit evidence are to the effect that suit no. PHC/98/2008 between Oilserv Ltd v. Global Gas and Refining Limited is not the same with this suit. That in suit no. PHC/98/2008, the Appellant sued for the sum of $385,755.77 being the sum admitted by the Respondent while this suit is for the sum of $1,571,859.54 being the disputed sum the Respondent owed the Appellant.

The learned trial judge in a considered ruling was of the opinion that the Appellant is caught by the doctrine of estoppels per rem judicata and he is estopped from litigating any claim against the Respondent having gotten judgment in PHC/98/2008: between Oilserv Ltd v. Global Gas & Refining Limited in respect of the of the year 2003 agreement. The learned trial Judge thereafter dismissed the suit. Dissatisfied with the ruling, Appellant appealed to this Court on the 26th May 2009.

In compliance with the rules of this Court, Appellant’s brief of argument was filed on the 3rd of May 2010. It was deemed properly filed and served on the 7th of Dec. 2010 pursuant to an order of this Court granted on 7th Dec. 2010. By an order of this Court granted on the 6th of Nov. 2012, Respondent’s brief of argument was deemed properly filed and served same day i.e. 6th Nov. 2012. Appellant distilled a sole issue for determination from the sole ground of appeal. The sole issue goes thus:

“Whether the issues raised in suit no. PHC/98/2008 are one and the same as the issues raised in suit no. PHC/824/2008 such as to give rise to a valid and sustainable pleas of rem judicata and/or issue estoppel.”

Learned counsel for the Respondent distilled a sole issue for determination thus:

“Whether from the facts of the case, the trial Judge was right to have held that the suit was caught up by the doctrine of estoppels per rem judicata.”

The issue distilled by the Respondent appeared succinct and apt to the determination of the appeal on ground. The appeal will therefore be determined on the sole issue distilled by the Respondent which states:

“Whether from the facts of the case, the trial Judge was right to have held that the suit was caught up by the doctrine of estoppel per rem judicata.”

Learned counsel for the Appellant submitted that the issues in dispute in suit no. PHC/98/2008 and issues in this suit are not the same. He contended that the issue in suit no PHC/98/2008 is the sum $385,755.77 admitted by the Respondent out of the indebtedness of the sum of $1,957,606,31 being claimed by the Appellant. He submitted further that the issue in this suit is the sum of $1,571,859,54 being debt owed by the Respondent to the Appellant which the Appellant is disputing.