Oliver Akujobi & Anor V. Patrick Ekeman & Ors (1998)

LawGlobal-Hub Lead Judgment Report

IBRAHIM TANKO MUHAMMAD, J.C.A 

A Writ of Summons with the following indorsement was taken out by the Appellants from High Court No.3 of Kano state against the Respondents:-

“1. An Order of perpetual injunction restraining the defendants, their servants or agents from parading themselves as Executive Members, Officials or accredited representatives of Nguru Development Union Kano;

2. An Order of perpetual injunction restraining the defendants from carry (sic) out the proposed “N75,000.00 CONSOLIDATION FUND LAUNCHING” at Randezvous Hotel, No.31, Aitken Road, Kano or any other venue within Kano State, on Sunday, 2nd May, 1991 or any other day, and;
3. A Declaration that any such Launching or other activities with the name of Nguru Development Union Kano by the Defendants, their agents or servants is illegal, null and void and of no effect whatsoever.”

On the 31/5/91, learned counsel for the plaintiffs moved the trial court on an Ex-Parte motion asking for an interim injunction against the defendants, their agents, assigns or servants from carrying out the proposed Launching of N75,000.00 “Consolidation Fund Launching” at Randezvous Hotel, No.31, Aitken Road, Sabon-Gari Kano taking place on Sunday, 2nd June, 1991 in the name of Nguru Development Union or any other day. The ex-parte motion was granted and that the order was to be served on all the respondents jointly or severally while the motion on Notice was adjourned to the 24/6/91 for hearing. From the printed record of appeal before me there is no record of what transpired on the 24/6/91, but on 17/7/91, the matter was adjourned further to the 9/9/91. Equally too, the ex-parte order granted on 31/5/91 was revoked by the learned trial Judge in view of the vacation that was to commence.

On 9/9/91 the case was struck out but relisted on 30/9/91. On this very day, learned counsel for the respondents, Mr. Ezeatah moved his preliminary objection as to the competence of the motion. After hearing him and Mr. Atei for appellants/applicants, the learned trial Judge in a reserved ruling which was delivered on 7/10/91 upheld the preliminary objection of the respondents and the motion for committal was struck out. It is on record also that all moves to settle broke down. Accordingly, pleadings were filed and exchanged. Meanwhile, before the commencement of hearing, learned counsel for the respondents filed an application praying the court under Order 5 Rule 20 of the High Court Rules, to strike out paragraphs 18 and 20(b) of the new statement of claim as it amounted to an abuse of court process. This application was heard on 27/9/93. Ruling on same was delivered on 1/8/94.

The appellants herein who were the plaintiffs at the trial court were dissatisfied with both rulings of 7/10/91 and 1/8/94 and they appealed against same. Two notices of appeal were filed: Notice filed on 31/1/95 which has three grounds of appeal is in respect of the ruling delivered on 1/8/94 and Notice filed with leave of this Court granted on 6/5/98 with three grounds too, is in respect of the ruling delivered on 7/10/91.

Parties filed and exchanged written briefs of argument. Learned counsel for the appellants formulated in his amended brief the following issues:-

“(i) Whether the decision reached by the learned trial Judge in his Ruling dated 7th October 1991 can be sustained having regard to the conflicting affidavit evidence before the court.

(ii) Whether the learned trial Judge was right in holding in his Ruling dated 1st August 1994 that the issues raised in paragraphs 18 and 20(b) of the statement of Claim has been settled once and for all in his Ruling dated 7th October 1991 and can no longer be litigated upon by the parties.”

Learned counsel for the respondents formulated only one issue:-

“Whether the learned trial Judge was right in his Ruling of 1st August, 1994 that he had indeed reached a decision on the issues sought to be raised in paragraph 18 and 20(b) (sic) of the statement of claim and so whether it is permissible to allow a relitigation of those issues.”

Arguing the appeal, the learned counsel for the appellants submitted that from the contents of the averments in the several affidavits before the trial court in connection with the motion for contempt of the court’s order, the affidavits were conflicting and that even the learned trial Judge conceded in his ruling of 7th October that there were conflicts in the various affidavits which would require oral evidence. Learned Counsel cited several authorities including: FALOBI V FALOBI (1976)9-10 SC 1 AT 14-15 arguing that oral evidence was the only determinant as to whether or not the ceremony held by the respondents at the Bukavu Barracks of the Nigerian Army Kano was a send-off party or the Launching of the Consolidated Fund. He submitted further that the question of whether the ceremony which took place at the Army Barracks was a Launching of the N75,000.00 Consolidated Fund or a Send-Off party was purely one of fact and not law. He urged us not to allow the decision to stand.

On Issue No.2, the learned counsel argued that paragraphs 18 and 20(b) of the new statement of claim, which the respondents, sought to expunge from the statement of claim, had direct link with the question of the Launching the Consolidated Fund, upon which the trial court had ruled. Learned Senior Advocate conceded that by allowing the paragraphs to stand, the appellants would have been permitted to relitigate a matter which had been adjudicated upon. His main contention on this issue however, is that the issue of whether the respondents held a launching of a consolidated fund was raised and decided in a contempt proceeding which was interlocutory and that such a decision was taken at a time when pleadings had not been filed in the case. Further, that, none of the deponents to the various affidavits filed in court gave oral evidence nor did they call witnesses. Inspite of all these, the learned trial Judge went ahead to deliver his ruling which touched on the substantive matter.

In his submission before the Court on the 5th day of October 1998, learned counsel for the respondents stated that he initially formulated only one issue relating to the decision of 1/8/94. However, on page 7 of the respondents’ brief, learned counsel advanced an alternative argument which covered the other points raised in the appellants’ brief on the ruling of 7/10/91. Learned counsel argued in the brief that once the issue of Launching the N75,000.00 Nguru Development Union Fund had been distinctly raised and determined, then the general rule embedded in ISSUE ESTOPPEL shall operate against relitigating the issue. He cited NWOPARA OGBOGU & ORS V NWONUMA NDIRIBE & ORS (1992)6 NWLR (PT.245)40 AT 67. In his alternative argument, learned counsel for the respondents submitted that there were no material conflicts in the affidavit and that the averments upon which the lower court relied were never denied and were thus deemed admitted. He finally argued that there was documentary evidence, i.e. Exhibit A4 upon which the lower court relied to make its decision. He urged us to dismiss the appeal. Now I have set out the facts of this case supra. I think my spring board for considering this appeal should start from the appellants’ application for committal of the respondents to prison for contempt of the trial court’s order granted per an ex-parte motion on the 31st day of May, 1991. The motion for contempt committal was struck out on 7/10/91 when a preliminary objection as to the competence of the motion was taken. Relief one of that motion paper reads as follows: