D.D Zhidu & Co.

07/01/2025

*A.G. BAYELSA STATE v. ODOK (2024) LPELR-63035(SC)*

*-Whether a law firm registered as a business name can enter into business contracts*

_"...I have failed to find the principle that a law firm registered as a business name cannot carry on business. As the name implies and as defined under Companies and Allied Matters Act (Section 868 (1) of CAMA, 2020), a "business name" is the name under which "any business is carried on", either by an individual, firm or a corporation. Business is carried on by agreements. The day to day transactions of a law firm is to accept briefs from clients and get paid for its legal services rendered. Is each of those briefs not a contract? Of course it is! To be frank, appellant's contention does not hold water and by prudence it is not expected to be argued among learned counsel."_ Per JOHN INYANG OKORO, JSC (Pp 19 - 20 Paras C - A)

AI & TECH | Lawyers Hub

21/12/2024

*NGEME vs. INSPECTOR-GENERAL OF POLICE & ORS.(2022)LCN/17204(CA)*

*ISSUE:* ARREST-Whether an arrest properly made by the police can constitute a breach of fundamental rights; Whether a decision to pay back to a person money fraudulently obtained erases criminal liability against the perpetrator and makes the money a debt owed for which police action cannot lie(Issue is mine)

*PRINCIPLE:*
"By the combined effects of Section 35(1) and 46 (1) of the Constitution every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with the procedure permitted by law, for the purpose of bringing him before a Court in ex*****on of the order of Court or upon such reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence. It follows therefore, any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress. Also, by Order II Rules 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act and to which he is entitled, has being, is being or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur for redress. This is the protection afforded to every citizen of this Country, and which must never be toyed with and therefore, can only be derogated from in accordance with the permissions stipulated by the provisions of the Constitution itself. See Air Vice Marshal Emmanuel Ejeh (Rtd) V. Chief George Ali & Ors. (2022) LPELR-57593 (CA) per Sir Biobele Abraham Georgewill, JCA.
It is therefore, the law that for every proven act of infringement of the fundamental right of the citizen the consequences should be an award of damages against the violator, and indeed the time has come for such damages to be exemplary in character for the purpose of making the breach of the fundamental right of the citizen very unattractive and an unenviable venture in appropriate cases in Nigeria. See Inspector General of Police & Ors. V. Peter O. Ikpila & Anor. (2015) LPELR-40630 (CA) Sir Biobele Abraham Georgewill, JCA. See also Jim-Jaja V. COP, Rivers State (2013) 6 NWLR (Pt. 1350) 225 AT pp. 244 - 245; Igweokolo V. Akpoyibo & Ors. (2017) LPELR-41882 (CA); Dasuki V. Director, General State Security & Ors. (2019) LPELR-48113 (CA); Okonkwo V. Ogbogu (1996) 5 NWLR (Pt. 489) 420 AT p. 435.
​Now, before the lower Court, the Appellant filed an Affidavit and a Reply Affidavit. In response, the 1st - 4th Respondents filed a Counter-Affidavit, annexed to which were five documents marked as Exhibits NPF 1, NPF 2, NPF 3, NPF 4 and NPF 5. Now, Exhibit NPF2, NPF 2 is the extra-judicial Statement of the Applicant at the Life Camp, Abuja Police Station, and it shows clearly that the Appellant was arrested on 6/3/2018, an arrest which the 1st - 4th Respondent described simply as an invitation as if the Appellant had any choice in the matter, whether to honour or not to honour the invitation of the 1st - 4th Respondents. Then, Exhibits NPF 3 and NPF 4, are the bail application and bond and evidence of deposit of the sum of N500,000.00 by the Appellant on 8/3/2018 with an undertaking to make available a further sum of N1,000,000.00 to the 5th Respondent between 8/3/2018 and August, 2018. So, why was the Appellant invited as claimed by the Police or arrested as claimed by the Appellant? Was it merely for the purposes of recovery of debt owing to the 5th Respondent by the Appellant as claimed by the Appellant or was it for the purpose of investigating the fraudulent obtaining of the sum of N6,400,000.00 from the 5th Respondent by the Appellant and his alleged cohort, one Eric? See pages 1-5, 17-18, 19-25, 26-29; 37-40, 41-45, 51-69, 70-77 of the Record of Appeal.
In the judgment appealed against, the lower Court thoroughly reviewed and evaluated the entirety of the affidavit, counter affidavit and reply affidavit of the parties, as well as scrutinized the documentary Exhibits placed before it and came to the finding that the arrest, detention and release on bail of the Appellant by the 1st - 4th Respondents acting upon the complaint of the 5th Respondent against the Appellant was justified by law and therefore, did not constitute any infringement of any of the fundamental rights of the Appellant as guaranteed in Chapter IV of the Constitution of Nigeria, 1999 (as amended). To my mind, and to my understanding too, this is the real crux of this appeal.
I have taken a closer look at the succinct provisions of Section 46(1) of the Constitution of Nigeria, 1999 (as amended) and Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, and immediately apparent to me from these provisions is the settled position of the law that, unlike in other civil actions in which the remedy is attached to the wrong done, in actions for enforcement of fundamental right as guaranteed in Chapter IV of the Constitution of Nigeria, 1999 (as amended), which is the basic law of the land, a breach need not have occurred or taken place before an application can be commenced to secure the protection and/or enforcement of the fundamental right of the citizen from being breached. Thus, in fundamental rights enforcement, the mere likelihood of arrest would suffice to ground an action. See Section 46(1) of the Constitution of Nigeria, 1999 (as amended). See also Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, and the African Charter on Human and Peoples Right Ratification and Enforcement Act. See further Air Vice Marshal Emmanuel Ejeh (Rtd) V. Chief George Ali & Ors. (2022) LPELR-57593 (CA) per Sir Biobele Abraham Georgewill, JCA.
​However, by Section 4 of the Police Act, CAP. P19, LFN 2004, which provides as follows:
“The Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or outside Nigeria as may be required of them by, or under the authority of this or any other Act.”
My Lords, whilst it is not and would never be the duty of the Police, as represented by the 1st - 4th Respondents, to either directly or acting under the guise of any subterfuge to facilitate and/or collect or aid the recovery of debt owed a citizen by another as the law Courts are there and well equipped for the citizen to ventilate his civil grievances against another without resort to the Police as a form of self-help in a purely civil matter, yet it is the very fundamental duty of the Police to be saddled with the duty of prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged by law. See Section 4 of the Police Act, CAP. P19, LFN 2004. See also Dr. Nwafor V. EFCC (2021) LPELR-52949 (CA), per Sir Biobele Abraham Georgewill, JCA. See also Olusegun & Anor. V. EFCC & Ors. (2018) LPELR-45825 (CA), per Sir Biobele Abraham Georgewill, JCA; Imoh & Anor. V. EFCC & Anor. (2018) LPELR-46579 (CA), per Sir Biobele Abraham Georgewill, JCA; EFCC V. Diamond Bank Plc & Ors. (2018) LPELR-44217 (SC).
There is evidence before the lower Court, which was not even denied by the Appellant, that he had in cohorts, making plan with and in collusion with one Eric Melius to defraud the 5th Respondent of the princely sum of N6,400,000.00 for Eric Melius to supply 36,000 litres of gasoline product to the 5th Respondent, which turned out to be a hoax, and out of which the Appellant admittedly benefited to the tune of N1,500,000.00. Thus, looking at the facts and circumstances of this case as in the Record of Appeal, it seems very clear to me, and I so hold, that there were enough grounds of reasonable suspicions, amounting even to clear prima facie evidence of the commission of crime against the Appellant as reported by the 5th Respondent to the 1st - 4th Respondents, and for which the 1st - 4th Respondents were, in law, both empowered and justified to put into full motion and operation their machinery of investigation against the Appellant to investigate him for the alleged offence of fraudulent obtaining as was reported against him by the 5th Respondent. I also do not see any evidence of any money paid as a condition for bail of the Appellant as there is no such indication in Exhibits NPF 3 and NPF 4 which are the application and bail bonds.
Honestly, I cannot but agree with the apt and unassailable submission of the learned counsel for the 1st - 4th Respondents, as well as learned counsel for the 5th Respondent that the lower Court was impeccably right when it held that the Appellant’s suit was aimed merely at stopping the 1st - 4th Respondent’s from investigating the case reported against him by the 5th Respondent. Thus, the finding by the lower Court that the Appellant failed woefully to prove any breach of any of his fundamental rights is unimpeachable and must therefore, be allowed to stand. I do hereby, and without much ado, so allow it to stand. We as appellate Court do not make an habit of interfering with the correct findings of the lower Court, but rather we affirm them as correct and end the matter. See Adamu V. Ashaka Cement Co. Plc (2015) LPELR-25610 (CA) per Sir Biobele Abraham Gcorgewill, JCA.
Indeed, the powers of the Police include the detection of crime, the apprehension of offenders, the preservation of law and order amongst several others, and the 1st - 4th Respondents, on the proven evidence before the lower Court as in the Record of Appeal, acted strictly in line with their statutory duty in arresting, detaining and investigating the allegation of fraud reported against the Appellant by the 5th Respondent, of which there was strong prima facie evidence against the Appellant, including his own voluntary admission. See Section 4 of the Police Act, 2020. See also Atakpa V. Ebetor (2015) 3 NWLR (Pt. 1447) 569. See also Hassan V. EFCC (2014) NWLR (Pt. 1389) 630.
My Lords, what, if I may ask, was the Appellant even thinking of? A person colludes with another and rips off another of the princely sum of N6,400,000.00 and get his princely share of N1,500,000.00 of the loot and then returns to the victim and inform him that armed robbers had robbed, but I think the proper description should have been ‘re-looted' his own share of the allegedly swindled sum of N1,500,000.00 whilst he was in transit from Port Harcourt to Abuja. The Appellant really needed and looked forward, perhaps, to a medal of honour, or is it dishonour, from the 5th Respondent as well as the 1st - 4th Respondent, whose investigation revealed that the story of armed robbery on the highway against the Appellant was also a hoax. I find neither any evidence of any duress nor of any debt recovery activity on the part of the 1st - 4th Respondents. The sum of N6,400,000.00, of which a part thereof amounting to N1,500,000.00 was collected by the Appellant are not product of any debt but of crime, which is subject to the investigative powers of the Police. The Appellant must be ready to face the consequences of his wrong choices in life! He can neither put the blame on others or on the society or even on the Police for taking action against him, if so moved by a valid complaint, as was done by the 5th Respondent against him, within the confines and limits of their powers under the law. See Section 4 of the Police Act, 2020.
​It follows therefore, that in law arrest properly made by the Police or any of the Law Enforcement Agencies cannot constitute a breach of fundamental Rights. Thus, a citizen arrested by the Police in the legitimate exercise of their duty and on grounds of reasonable suspicion of having committed an offence cannot sue the Police in Court for the breach of his fundamental rights, and if he does so he cannot succeed in such a claim against the Police. See Sambo V. Nigerian Army Council (2017) 7 NWLR (Pt. 1565) 249, where it was stated inter alia thus: "No citizen of Nigeria no matter his status is above the laws of the land and is subject to the powers of arrest and detention upon reasonable suspicion of having committed a criminal offence”
See also Udo V. Essien (2015) 5 NWLR (Pt. 1451) 103.
​In the light of all I have stated above, I thought I should make it abundantly clear there is no initial onus on the Police to prove the negative that the Appellant’s fundamental rights were not breached unless and until the Appellant has presented at least prima facie evidence of the alleged breach or threatened breach of his fundamental right against the Police. Thus, in law the burden of proof lies on anyone who asserts to prove what he asserts, and in cases of enforcement of fundamental rights, the burden is on the Applicant to prove that his fundamental rights was breached or in danger of being breached. See Atakpa V. Ebetor (2015) 3 NWLR (Pt. 1447) 569; Sambo V. Nigerian Army Council (2017) 7 NWLR (Pt. 1565) 249.
I have scanned through the entire Record of Appeal and I cannot find or see where the parties joined any issues either on the failure of the Police to charge the Appellant to Court within any specified time or whether the Appellant was invited rather than arrested, both of which amounts in my view to one and the same, and therefore, these not being issues canvassed by any of the parties, cannot become issues in this appeal by their parties mere wishful thinking and/or belief without the requisite prior leave of this Court sought and obtained to do so. These issues are hereby discountenanced as going to no issue in this appeal." Per GEORGEWILL, JCA.

01/12/2024

"...in every litigation a number of issues of fact may arise but unless they have a bearing on the principal question for determination, they do not by themselves or together form 'an issue'... while an issue may thus involve a dispute about facts, a mere dispute about facts divorced from their legal consequences is not an ‘issue’.”
*FIRST CITY MONUMENT BANK LTD. vs. J. A. ODUTOLA PROPERTY & INVESTMENT LTD.(2021)LCN/15020(CA)*

*ISSUE:* ESTOPPEL PER REM JUDICATAM/RES JUDICATA-Whether the doctrine of estoppel per rem judicatam would apply where alleged differed facts between a previous suit and a subsequent suit are a distinction without a difference; Whether once a Court has decided an issue of fact or law necessary to its judgment the decision precludes relitigating of the decided issue all over again by a party to the suit(Issue is mine)

*PRINCIPLE:*
"The main issue in this appeal is whether the doctrine of res judicata is applicable to the facts of this case. Res judicata is a legal doctrine meant to bar or preclude re-litigation of a claim between the same parties in a case where there has been a final judgment. In Ranking Udo & Ors. v. Mbiam Obot & Ors. (supra), also reported in (1989) LPELR-3297 (SC), the Supreme Court, per Oputa, JSC, explained, page 15 of the E-Report: “A plea of res judicata can be maintained only when the same question as has been judicially decided was again raised between the parties. If therefore an action is brought, and the case is discussed on its merits and a final judgment is obtained by either party then the parties are concluded and they cannot canvass the same question again in another action inter parties.”
In Makun v. Federal University of Technology, Minna (supra) also reported in (2011) LPELR-15514 (SC) the Supreme Court, per Adekeye, JSC, restated the doctrine of res judicata in the following manner, pages 24 - 29 of the E-Report: "Estoppel per rem judicatam or estopel of record arises where an issue of fact has been judicially determined in a final manner between the parties or their privies by a Court or Tribunal having jurisdiction in the matter and the same issue comes directly in question in subsequent proceedings between the parties or their privies. It effectively precludes a party to an action, his agents and privies from disputing as against the other party in any subsequent suit, matters which had been adjudicated upon previously by a Court of competent jurisdiction between him and his adversary involving the same issues.
Adone v. Ikebudu (2001) 14 NWLR Pt.733 Pg.385; Ukaegbu v. Ugoji (1991) 6 NWLR Pt.196 Pg.127; Ezeudu v. Obiagwu (1986) 2 NWLR Pt.21 Pg. 208; Osunrinde v. Ajamogun (1992) 6 NWLR Pt.246 Pg.156; Iga v. Amakiri (1976) 11 SC 1; Udeze v. Chidebe (1990) 1 NWLR 3 (Pt.125) 141; Lawal v. Dawodu (1972) 1 All NLR Pt.2 Pg.270; Ezewani v. Onwordi (1986) 4 NWLR Pt.33 Pg.27; Fadiora v. Gbadebo (1978) 3 SC 219. There are two categories of estoppel per rem judicatam. They are -
(1) Cause of Action Estoppel -This precludes a party to an action from asserting or denying as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a Court of competent jurisdiction in a previous litigation between the same parties. This is because it is against the rule of public policy for anyone to be vexed twice on the same ground and for one and the same cause of action and the same issues. It is also an application of the rule of public policy that there should be an end to litigation. In appropriate case, the parties affected are estopped from bringing a fresh action before any Court on the same cause and on the same issues already decided or pronounced upon by a Court of competent jurisdiction in a previous action.
(2) Issue Estoppel - The rule being that once one or more issues have been raised in a cause of action and distinctly determined or resolved between the same parties in a Court of competent jurisdiction, then as a general rule, neither party nor his agent or privy is allowed to relitigate that or those decided issues all over again in another action between the same parties or their privies on the same issues.
Adomba v. Odiese (1990) 1 NWLR Pt.125 Pg.165; Omokhafe v. Esekhomo (1993) 8 NWLR Pt. 309 Pg.58; Balogun v. Adejobi (1995) 2 NWLR Pt.375 Pg.131; Lawal v. Dawodu (1972) 1 ALL NLR Pt.2 Pg.270; Ezewani v. Onwordi (1986) 4 NWLR Pt.33 Pg.27; Adone v. Ikebudu (2001) 14 NWLR Pt.733 Pg.385. For a plea of estoppel per rem judicatam to succeed, the party relying on it must establish the following requirements or pre-conditions namely -
(a) That the parties or their privies are the same in both the previous and the present proceedings
(b) That the claim or issues in dispute in both actions are the same.
(c) That the res or the subject matter of the litigation in the two cases is the same.
(d) That the decision relied upon to support the plea of estoppel per rem judicatam is valid, subsisting and final.
(e) That the Court that gave the previous decision relied upon to sustain the plea is a Court of competent jurisdiction.
Unless all the above constituent elements or requirements of the doctrine are fully established, the plea of estoppel per rem judicatam cannot be sustained.
Adigun v. Governor of Osun State (1995) 30 NWLR Pt. 385 Pg. 513; Oke v. Atoloye (1985) ALL NLR (Pt.9) Pg.578; Yoye v. Olubode (1974) ALL NLR (Pt.2) Pg.118; Alashe v. Olori-ilu (1965) NMLR Pg.66; Fadiora v. Gbadebo (1978) 3 SC 219; Odjevwedje v. Echanokpe (1987) 1 NWLR Pt.52 Pg. 633; Nwaneri v. Oruiwa (1959) SC NLR Pg.316; Dokubo v. Omoni (1999) 8 NWLR Pt. 616 Pg.647; Nkanu v. Onun (1977)5 SC 1; Udo v. Obot (1989) 2 NWLR Pt. 95 Pg.59.
​In determining whether the issues, the subject matter of the two actions and the parties are the same, the Court is permitted to study the pleadings, the proceedings and the judgment in the previous action. The Court may also examine other relevant facts to discover what was in issue in the previous case. It is entirely a question of fact whether the parties and their privies, the facts in the issue and the subject matter of the claim are the same in both the previous and the present suits. The plea of res judicata applies except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment but to every point which properly belonged to the subject-matter of litigation and which the parties exercising reasonable diligence might have brought forward. Standard Bank of Nigeria Ltd. v. Ikomi (1972) 1 SC Pg.164; Ijale v. A.G. Leventis & Co. Ltd. (1965) 2 SCNLR Pg. 386. The plea of res judicata operates not only against the parties but also against the jurisdiction of the Court itself and robs the Court of its jurisdiction to entertain the same cause of action on the same issues previously determined by a Court of competent jurisdiction between the same parties.” See also: Fadiora & Anor. v. Gbadebo & Anor. (1978) 3 SC 219, (1978) LPELR-1224 (SC); Ogbolosingha & Anor. v. Bayelsa State Independent Electoral Commission & Ors. (2015) LPELR-24353 (SC); Cole v. Jibunoh & Ors. (2016) LPELR-40662 (SC).
As explained by the above judicial pronouncements, the purpose for the doctrine is two pronged:
(i) Interest reipublicae ut sit finis litium - It is from the common good that there should be an end to litigation.
(ii) Nemo debet bis vexari pro una et eadem causa - No one should be sued twice on the same ground. No one shall be twice vexed for one and the same cause.
In the instant appeal, it is not disputed that the parties are the same in both the previous proceedings, Suit No: ID/ADR/92/2013 and the present proceedings. It is also not in dispute that the decision relied upon is valid, subsisting and final; and that the Court that gave the previous decision was a Court of competent jurisdiction. In contention is whether the claims or issues in dispute in both actions are the same; and whether the res or the subject matter of the litigation in the two cases is the same.
An issue in dispute is the subject of litigation. It is a matter for which the suit is brought and parties join issues for the determination of the dispute: Trade Bank Plc v. Benilux (Nig.) Ltd. (2003) LPELR-3262 (SC) 6. An issue arises in a suit where a fact is alleged by one party and denied or admitted in part, either expressly or by necessary implication, by the other party. Issues emerge in a civil suit where the plaintiff asserts a fact and the defendant denies, traverses or refuses to admit the fact: Okonkwo v. Kpajie (1992) LPELR-2483 (SC).
Now, in every litigation a number of issues of fact may arise but unless they have a bearing on the principal question for determination, they do not by themselves or together form “an issue”. On the meaning of the word issue in this regard, the Supreme Court in Messrs Lewis and Peat (NRI) Ltd. v. Akhimien (1976) LPELR-1864 (SC), per Idigbe, JSC, cited with approval the decisions in Fidelitas Shipping Co. Ltd. v. V/C Exportchleb (1965) 2 AER 4 and Howell v. Dering (1915) 1 KB 54 at 62 as follows: “As was stated in a case in which it was necessary to consider the true meaning of the expression “issue”.
“… Litigation is concerned only with legal rights and duties of the parties thereto. It is concerned with facts only in so far as they give rise to legal consequences. The final resolution of a dispute between the parties as to their respective legal rights or duties may involve the determination of a number of different “issues” that is to say, a number of decisions as to the legal consequences of particular facts, each of which decisions constitutes a necessary step in determining what are the legal rights and duties of the parties resulting from the totality of the fact. To determine an ‘issue’ in this sense, which is that in which I shall use the word ‘issue’ throughout this judgment, it is necessary for the person adjudicating on the issue first to find out what are the facts, and there may be a dispute between the parties as to this. But while an issue may thus involve a dispute about facts, a mere dispute about facts divorced from their legal consequences is not an ‘issue’.”
See Fidelitas Shipping Co. Ltd. v. V/C Exportchleb (1965) 2 AER 4 per Diplock LR at Pp. 9 & 10. Although, the case of Howell v. Dering deals with the expression ‘issue’ as used in the Rules of the Supreme Court (England) 1883, Order LXV Rule 1 (now revoked) it is useful to note the observations of Buckley LJ. According to him: "It is impossible to say that every question of fact which is in dispute between a Plaintiff and a Defendant is ‘an issue’. The word can be used in more than one sense. It may be said that every dispute, question of fact is an issue. It is in a sense, that is to say, it is in dispute. But every question of fact which is ‘in issue’ and which a jury has to determine is not necessarily an issue within the meaning of the rule. I shall define ‘issue’ for the purposes of this rule in some such words as these: An issue is that which, if decided in favour of the Plaintiff, will in itself give a right to relief, or would, but for some other consideration, in itself give a right to relief: and if decided in favour of the Defendant will in itself be a defence.” (underlining supplied) – See Howell v. Dering (1915) 1 KB 54 at 62.” (Emphasis mine).
The res is an object, a subject matter, or a status against which legal proceedings have been instituted: Ogbogu v. Ndiribe (1992) LPELR-2283 (SC). Although, several issues can arise over the same res, to constitute estoppel, the issues distinctly decided in earlier litigation and canvassed in the subsequent litigation must be identical, not merely similar: Udoh v. Obot (supra); Fadiora & Anor. v. Gbadebo & Anor. (supra).
In Suit No: ID/ADR/92/2013, the following orders were made:
1) An order directing the Defendants forthwith unfreeze the Claimant’s Account No. 0129425037 and Deposit Account No. 001212012925001 operated in the Defendant Bank and allow normal operation to resume on both accounts (without prejudice to the generality of the foregoing) is hereby granted.
2) An order directing the Defendants, its servants/agents and/or privies to allow withdrawals from, transfers-in and out-lodgments into the Accounts is hereby granted.
3) The Defendant is ordered to honour all instruments drawn/instructions given on the Accounts by the Claimant.
Although, the pleadings in Suit No: ID/ADR/92/2013 were not placed before the lower Court, the res or subject matter therein was two of the Respondent’s Accounts: No. 0129425037 and Deposit Account No. 001212012925001, which were domiciled with the Appellant Bank. The issue therein was the refusal of the Appellant to allow normal operations of both accounts by the Respondent by honouring the instructions of the Respondent given on both accounts. It must be understood that the instruments employed to operate the said accounts was not the issue, and, indeed, was not important. The Appellant was ordered to honour all instruments drawn and or instructions given on the said accounts by the Respondent. The Appellant was directed to allow withdrawals from, transfers-in and out-lodgements into the said accounts.
In the Amended Writ of Summons and Amended Statement of Claim filed on 26/3/2015, pages 344 - 364 of the Record of Appeal, the Respondent sought these Orders:
i. An order directing the Defendant to comply with the Claimant’s instruction contained in the Claimant’s letter dated 22nd July, 2013 to the Defendant that the Defendant transfer the sum of N522,807,000.00 (Five Hundred and Twenty-two Million, Eight Hundred and Seven Thousand Naira only) being the sum standing to the credit of the Claimant’s Accounts No: 0129425044 and 0129425037 with the Defendant’s Branch at 44, Marina, Lagos to Zenith Bank Plc, Redemption Camp Mowe, Ogun State which instructions the Defendant has up till date failed, refused or neglected to obey.
ii. An Order directing the defendant to pay to the claimant the percentage of the sum of N522,807,000.00 (Five Hundred and Twenty-two Million, Eight Hundred and Seven Thousand Naira only) withheld by the defendant without the consent and against the instructions of the Claimant representing the rate of devaluation of the Claimant’s money with the Defendant which percentage is calculated in the following manner:
Official rate of N to $ at the time of close of evidence minus official rate of N to $ as at 22nd July, 2013 divided by official rate of N to $ as at 22nd July, 2013 multiplied by 100.
iii. The sum of N1,000,000,000 (One Billion Naira) being general damages payable to the Claimant by the Defendant for the Defendant’s failure or refusal to comply with the Claimant’s instruction contained in the Claimant’s letter dated 22nd July, 2013 aforesaid.
iv. Interest at the rate of 12% per annum from 22nd July, 2013 until Judgment is delivered which rate of interest was due and payable by agreement of the Claimant and Defendant for keeping the Claimant’s money with the Defendant in an interest yielding account.
v. Interest on the total sum awarded by this Honourable Court at the rate of 10% per annum from the date Judgment is delivered until final payment by the Defendant.
The issue in the instant appeal had to do with instructions given by the Respondent’s letter of 22/7/2013 directing the Appellant to transfer the sum of N522,807,000.00 from the self-same accounts. Now, if the said accounts had been unfrozen and the Appellant allowed to recommence normal banking operations on both accounts, all instructions of the Respondent on the said accounts, by whatever means conveyed, would certainly be honoured by the Appellant. In other words, in both suits, the res remained the funds in the Respondent’s Accounts domiciled with the Appellant and the right of the Respondent to access the said funds.
The issue in both suits was therefore, the refusal by the Appellant to allow normal operations of the said accounts by honouring the instructions of the Respondent, through its Directors, whether conveyed by cheque or by other written instructions. By the issue already decided on in Suit No: ID/ADR/92/2013, it is clear that there was issue estoppel.
As already noted above, the two categories of estoppel per rem judicatam are - Cause of Action Estoppel, precludes a party to an action from asserting or denying as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a Court of competent jurisdiction in a previous litigation between the same parties; and Issue Estoppel. The rule guiding issue Estoppel is that once one or more issues have been raised in a cause of action and distinctly determined or resolved between the same parties in a Court of competent jurisdiction, then neither party nor his agent or privy is allowed to relitigate that or those decided issues all over again in another action between the same parties or their privies on the same issues; Fadiora v. Gbadebo (supra); Makun & Ors. v FUT, Minna & Ors. (supra).
In taking the contrary position, the Respondent’s Counsel had pointed out some alleged differences between the previous suit and the instant suit. One of these was that the cause of action in both suits arose on different dates. Whilst the cause of action in Suit No: ID/ADR/92/2013 arose on 30th and 31st August, 2012 when the Respondent’s two cheques were dishonoured the cause of action in this case arose on 22/7/2013 when the Appellant refused to comply with the Respondent’s instructions. I do not see this as a difference affecting the operation of the doctrine. Cause of action has been defined to mean the facts which when proved will entitle a plaintiff to a remedy against a defendant. It consists of every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment: Oshoboja v. Amuda (1992) LPELR-2804 (SC); Afolayan v Ogunrinde (1990) LPELR-198 (SC). Any act on the part of the defendant which gives to the plaintiff his cause of complaint is a cause of action: Bello v. AG, Oyo State (1986) LPELR-764 (SC), (1986) 1 SC 1-76. This is different from the res, which is the subject matter of complaint, being in this case, the funds in the Respondent’s two accounts domiciled with the Appellant and the right of the Respondent to access those funds, employing any instrument to convey its instructions. There can be different causes of action arising on different dates from the same res; Udoh v. Obot (supra).
Another alleged difference was that whilst Suit No: ID/ADR/92/2013 involved third parties presenting cheques to the Appellant which were dishonoured, this suit is based on the instruction made directly by the Respondent to the Appellant. Again, I see no difference here. I agree with the Appellant’s Counsel that it is a distinction without a difference. I already made the point that the order of the previous Court was for the Appellant to allow normal banking operations to resume on both accounts of the Respondent by honouring all instructions. The instrument employed by the Respondent to convey the instruction is not tied. The order sought in the present suit, if granted, would have the same effect of having the Appellant unfreeze the Respondent’s Accounts domiciled with them, and honour the Respondent’s instructions on the said accounts.
Another difference was argued to be that the reasons why the Respondent’s accounts at the time of the filing of Suit No: ID/ADR/92/2013 were frozen, were stated in the pleadings whilst there is no contention in this suit that the Respondent’s account is frozen. There again is no difference here. Principally, there was a bar to normal operations on both accounts of the Respondent by the Appellant. The instant suit has arisen because that said order of Court given in the previous suit had not been complied with.
The Respondent’s Counsel also highlighted facts that differed in the two matters. It is important to emphasize that it is not every question of fact which is in dispute between a plaintiff and a defendant that constitutes ‘an issue’: Messrs Lewis and Peat (NRI) Ltd. v. Akhimien (supra). The fundamental problem was that the Respondent’s cheque and or instructions were not honoured, which issue had already been settled by the Court in the previous suit, with an order made to the Appellant to, inter alia, honour all instructions of the Respondent. Once a Court has decided an issue of fact or law necessary to its judgment, that decision precludes relitigating of the same issue in a suit on a different cause of action involving a party to the first case. This is issue estoppel.
​The Appellant’s Counsel rightly reasoned that a grant of the orders sought in the present suit would have the backdoor effect of ex*****on of the orders given in the previous suit, which are on appeal. This is simply because the accounts of the Respondent would need to be unfrozen and normal banking operations resumed for the orders sought in the present suit to take effect. Further, once the orders sought in the present suit are made, the wind will be taken off the sail of any appeal in Suit No: ID/ADR/92/2013, as the orders made therein would now be executed. It is for this reason that, in my considered view, instituting the instant suit in the face of the subsisting orders made in Suit No: ID/ADR/92/2013, amounted to improper use of the judicial process, which is an abuse of Court process: Agwasim v. Ojichie (2004) LPELR-256 (SC); Ikine v. Edjerode (2001) LPELR-1479 (SC).
The elements required to be proved to bring into operation the principle of estoppel per rem judicatam were therefore in place. The parties are the same in both the previous and the present proceedings; the issue in dispute in both actions, which was for the Appellant to allow the Respondent to resume normal banking operations on both accounts domiciled with the Appellant, is the same; the res or the subject matter of the litigation in the two cases, which was the funds in the Respondent’s Accounts domiciled with the Respondent, and the Respondent’s right to those funds, is the same; the decision relied upon to support the plea of estoppel per rem judicatam is valid, subsisting and final; and the Court that gave the previous decision in Suit No: ID/ADR/92/2013 was a Court of competent jurisdiction. The sole issue distilled for determination is thus resolved in favour of the Appellant and against the Respondent.
I find merit in this appeal. It is hereby allowed. The Ruling of the High Court of Lagos State made in Suit No: LD/881/2013 on 27/10/2015 is hereby set aside. The said Suit No: LD/881/2013 is, in consequence, hereby struck out.
Parties shall bear their costs." OTISI, JCA.