IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP:  HON. JUSTICE M. N. ESOWE

 

DATE: APRIL 24, 2024                            

SUIT NO.: NICN/LA/75/2023

 

BETWEEN

UNION OF TIPPERS & QUARRY

EMPLOYERS OF NIGERIA                         CLAIMANT/RESPONDENT

 

AND

1.   UNION OF TRUCKS TIPPERS

WORKERS ASSOCIATION OF               DEFENDANT/APPLICANT

NIGERIA (UTTAWAN)

2.   MINISTRY OF TRANSPORTATION,

LAGOS STATE

3.   LAGOS STATE GOVERNMENT             DEFENDANTS/RESPONDENTS

4.   ATTORNEY GENERAL OF LAGOS

STATE

 

REPRESENTATION

Esq for the Claimant

Esq for the 1st Defendant

Esq for the 2nd to 4th Defendants

 

RULING

1.   INTRODUCTION

2.   This is the ruling of this Honourable Court on the Notice of Preliminary Objection brought by the 1st Defendant/Applicant seeking the following:

 

a)     AN ORDER of this Honourable Court dismissing the Claimant’s suit in its entirety as this Honourable Court lacks jurisdiction to hear and entertain same on the ground that the prayers and reliefs sought by the Claimant in its Writ of Summons and Statement of Facts dated 15.03.2023 are caught by (sic) doctrine of estoppel per rem judicatem.

b)    AN ORDER of this Honourable Court dismissing the Claimant’s suit in its entirety as this Honourable Court lacks jurisdiction to hear and entertain same on the ground that the prayers and reliefs sought by the Claimant in its Writ of Summons and Statement of Facts dated 15.03.2023 with Suit No.: NICN/LA/75/2023 is a re-litigation of Suit No.: NICN/LA/49/2015 already determined by the Honourable Justice O. A. Obaseki-Osaghae of the NICN, Lagos Judicial Division on 09.12.2021.

c)     AN ORDER of this Honourable Court dismissing the Claimant’s suit in its entirety as this Honourable Court lacks jurisdiction to hear and entertain same on the ground that the prayers and reliefs sought by the Claimant in its Writ of Summons and Statement of Facts dated 15.03.2023 with Suit No.: NICN/LA/75/2023 is a re-litigation of Suit No.: NICN/MKD/04.2019 already determined by the Honourable Justice S. H. Danjidda of the NICN, Makurdi Judicial Division on 27.06.2019.

 

3.   The last prayer is the omnibus relief. The application is supported by an affidavit deposed to by Comrade Rahmon Baduru, Lagos State Chairman of the 1st Defendant, annexed to the affidavit are four documents marked as exhibits A-D respectively. In its written address, the 1st Defendant/Applicant raised the following issues for determination, to wit:

 

a)     Whether or not the prayers and reliefs sought by the Claimant in its Writ of Summons and Statement of Facts dated 15.03.2023 are caught by the doctrine of res judicata rem and re-litigation of Suit No.: NICN/LA/49/2015 already determined by the Honourable Justice O. A. Obaseki-Osaghae of the NICN, Lagos Judicial Division on 09.12.2021.

b)    Whether or not the prayers and reliefs sought by the Claimant in its Writ of Summons and Statement of Facts dated 15.03.2023 are caught by the doctrine of res judicata rem and re-litigation of Suit No.: NICN/MKD/04/2019 determined by Honourable Justice S. H. Danjidda of the NICN, Makurdi Judicial Division on 27.06.2019.

 

4.   Learned Counsel to the Applicant submits that upon a close examination of the Claimant’s Writ of Summons and Statement of Facts it reveals that the reliefs and prayers sought in this suit are one and the same with those already determined in Suit No.: NICN/LA/49/2015 on 09.12.2021. So, the instant suit is caught up by the doctrine of res judicata rem and re-litigation of Suit No.: NICN/LA/49/2015 and Suit No: NICN/MKD/04/2019. That for a plea of estoppel per rem judicatam to succeed, the party relying on it must establish: (a) that the parties or their privies are the same in both the previous and present proceedings; (b) that the claim or issue in dispute in both actions is the same; (c) that the res or 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 must be valid, subsisting and final; and (e) that the Court that gave the previous judgment relied upon to sustain the plea must be a Court of competent jurisdiction – Ogunsakin & Ors v Balogun & Anor (2015) LPELR-40279(CA), Honda Place Ltd v Globe Motor Holdings Nig. Ltd (2005) 14 NWLR (Pt. 495) 273. Counsel urged the Court to dismiss this suit with substantial cost.

 

5.   CLAIMANT/RESPONDENT’S SUBMISSIONS

6.   In opposition to the 1st Defendant/Applicant’s Notice of Preliminary Objection, the Claimant/Respondent filed a Counter-affidavit deposed to by Thompson Armstrong E., a litigation assistant in the Law Firm of Lawlinks Legal Practitioners, Counsel to the Claimant/Respondent and a written address, wherein the Claimant raised a sole issue for determination, to wit:

 

a)     Whether or not the prayers and reliefs sought by the Claimant in its Writ of Summons and Statement of Facts dated 15.03.2023 are caught by the doctrine of res judicata rem and re-litigation of Suit No.: NICN/LA/49/2015 and NICN/MKD/04/2019 already determined by Honourable Justice O. A. Obaseki-Osaghae of the NICN, Lagos Judicial Division on 09.12.2021, and Honourable Justice S. H. Danjidda.

 

7.   Learned Counsel to the Claimant argued that this Court has the jurisdiction to adjudicate the instant case in line with the authority of Nkemdilim v Madukolo (1962) NSCC 374 at 379 and that this case is not affected by the doctrine of estoppel res judicata. That the onus is on the party that raises the doctrine of estoppel per rem judicata to establish or prove it. That the current suit and Suit No: NICN/MKD/04/2019 and NICN/LA/49/2015 are not the same neither are the parties.

 

8.   RESOLUTION

9.   Having regards to the facts and circumstances of this suit, the pleadings before the Court, and the processes filed in support and in opposition to the grant of the instant application, the Court distils the issue below for determination, namely:

 

a)     Has the 1st Defendant/Applicant established the ingredients for the invocation of the doctrine of res judicata in this suit to rob the Court of jurisdiction to entertain same.

 

10.   The gravamen of the 1st Defendant/Applicant’s application is that this Court lacks jurisdiction to entertain the instant suit as it is basically a re-litigation of Suit No.: NICN/LA/49/2015 delivered by Honourable Justice O. A. Obaseki-Osaghae on 09.12.2021 and Suit No.: NICN/MKD/04/2019 delivered by Honourable Justice S. H. Danjidda on 27.06.2019, a position the Claimant/Respondent vehemently opposes. It is no gainsaying that jurisdiction is the life-blood of any adjudicatory process, such that in the absence of it, any proceedings, however ably and well conducted will amount to a nullity. In determining whether or not the Court is seised with requisite jurisdiction in a matter, the Court is required to examine carefully the Originating processes filed by the Claimant. According to the 1st Defendant/Applicant, the issues and cause of action before the Court have been litigated upon by a competent Court of law that delivered a final thereon, so the Claimant cannot re-litigate or institute a fresh suit on matters already litigated.

 

11.   As rightly pointed out by Counsel the doctrine of estoppel per rem judicatam is an expression that aptly captures a settled principle of law that a party or its privies are estopped from litigating on a thing judicially acted upon or decided. That is, the expression, “res judicata” means “a thing adjudicated; a thing judicially acted upon or decided; a thing or matter settled by judgment.” The principle encapsulated in the term res judicata is derived from the Latin maxim “nemo debet bis vexari si constecuriae quod sit pro una et eadem causa” which literally means no man ought to be twice vexed, if it is proven to the Court that it is for one and the same cause – Oshoboja v Dada (2009) 18 NWLR (Pt. 1172) 188, Yakubu v Ajaokuta Steel Co. Ltd (2010) 2 NWLR (Pt. 1177) 167. The doctrine of estoppel per rem judicatam is in two (2) categories: the first being cause of action estoppel which occurs where the cause of action is merged in the judgment, that is, in res judicatam. The other is issue estoppel.

 

12.   In the case of the former, once it appears that the same cause of action was held to lie (or not to lie) in a final judgment between the same parties who are litigating in the same capacity, that is the end of the matter. In other words, it precludes a party to an action from asserting or denying, as against the other, 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 parties. issue estoppel, on the other hand occurs where an issue had earlier on been adjudicated upon by a Court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the parties. The rule 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, as a general rule, neither party is allowed to re-litigate that or those decided issue(s) all over again in another action between the same parties.

 

13.   Those issues are in law considered to be dead and can never be resurrected. A party raising a plea of estoppel per rem judicatam is in fact urging the Court before which it was raised not to consider the issues in the case anew, the issues having been previously adjudicated upon by a Court of competent jurisdiction – Okosim v Assam (2005) LPELR-2521(SC). In Skyblind (Nig.) Ltd v Newlife Co-op Society (2020) 9 NWLR  (Pt. 1730) 541, it was held that the law requires a party relying on estoppel per rem judicatam to establish the following conditions to succeed: (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 subject matter of litigation in the two cases are the same; (d) that the decisions 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.

 

14.   Estoppel per rem judicatam is based on the principle of the necessity to have an end to litigation in respect of the same res and between the same parties or privies – Ntuk v NPA (2007) LPELR-2076(SC), Baro v Lagos State Property Development Corp (2012) LPELR-2015(SC), Olokoga v Fatunde (1996) LPELR-2623(SC), Ajiboye v Ishola (2006) 13 NWLR (Pt. 998) 628. Having given a surmise of the doctrine, the issue for determination is, does the doctrine of estoppel per rem judicatam apply to this case and has the Applicant successfully established the pre-conditions for its applicability?

 

15.   A careful look at the decisions of this Court attached to the 1st Defendant/Applicant’s application in Suit No.: NICN/LA/49/2015 and Suit No.: NICN/LA/04/2019 alongside the Claimant’s Originating process in this suit reveal that other than the Claimant all the other parties in the above listed suits are distinct and different from the instant suit. The 1st Defendant seem to be saying that though it was not a party to these suits, its privies were since it is conglomeration of some of the other Associations that were parties to these suits.

 

16.   But on the reverse side of such stance, as may be gleaned from the 1st Defendant/Applicant’s processes, it is silent on the issue of whether or not it assumed the liabilities and not just assets of these other Associations that merged to form the 1st Defendant. Litigation respectfully is not a game of hide and seek or one where a party can use the instrumentality of the law to dislodge liabilities or claims bothering on breach of civil obligations with the wave of hand like a wand with interlocutory applications. It is settled law that he who comes to equity must do equity or come with clean hands. While it is true that equity sees as done that which ought to be done, it is equally the law that a document speaks for itself and where its wordings are clear and unambiguous, it should be given its plain and simple meaning.

 

17.   It is thus the considered view of this Court that the 1st Defendant/Applicant has not satisfactorily shown that the parties in the instant suit are one and the same with the parties in Suit No.: NICN/LA/49/2015 and Suit No.: NICN/MKD/04/2019. The 1st Defendant/Applicant has equally not satisfactorily and successfully shown that the parties in Suit No: NICN/LA/49/2015 and Suit No.: NICN/MKD/04/2019 are privies to the parties in the instant suit. In the light of this, the submissions of Learned Counsel to the Applicant on this issue is accordingly discountenanced. I so find and I so hold.

 

18.   On the issue of claims, subject matter or cause of action, a careful examination of the decisions attached to this application in Suit No.: NICN/LA/49/2015 and Suit No.: NICN/MKD/04/2019 reveals that the claims, subject matter therein are not one and the same with those in the instant suit. That is, they are not at all fours with the claims, subject matter of this suit, except for relief three in the instant suit with Suit No.: NICN/LA/75/2023 which has more or less the same import with relief one in Suit No.: NICN/LA/49/2019. The said relief three in the instant suit, Suit No.: NICN/LA/75/2023 is accordingly struck out for being based on an issue that has been successfully adjudicated upon and judicially decided in Suit No.: NICN/LA/49/2015. I so find and I so hold. Since there is nothing before the Court showing that the decision of this Court in Suit No.: NICN/LA/49/2015 has been set aside on appeal, the declaration of this Court on the said issue still subsists and the Claimant can bring an action to enforce the said declaration but not re-litigate the same issue that gave rise to the declaration or seek another declaration with the same import other than for the words “legally guaranteed” and “jurisdictional scope”.

 

19.   Going through the Claimant’s pleadings, that is, its General Form of Complaint and Statement of Facts, it may be garnered that the Claimant’s cause of action, claims and or subject matter of the instant suit is distinct from those in Suit No.: NICN/LA/49/2015 and Suit No.: NICN/MKD/04/2019 though with certain allegations of facts that appear similar. To my mind, the similarities of such allegations of facts do not in itself constitute or amount to sameness of cause of action or claims to invoke the doctrine of estoppel per rem judicata as doing so will affect the Claimant’s right to fair hearing as constitutionally guaranteed, which this Court like others are mandated to protect within the purview of legally permissible circumstances.

 

20.   In other words, I cannot safely come to the same conclusion as suggested by the 1st Defendant/Applicant that all the reliefs in the instant suit are barred by the plea of estoppel per rem judicata. The Claimant’s grudge in the instant suit against the 1st to 4th Defendants is that it considers the actions of the 2nd to 4th Defendants which resulted in the creation of formation of the 1st Defendant a threat to its existence and a usurpation of its powers as a Union duly registered under our laws. See paragraphs 2, 3, 4, 9 to 22 of the Claimant’s Statement of Facts. In Chevron Nigeria Limited v Lonestar Drilling Nig. Limited (2001) 11 NWLR (Pt. 723) 116, it was held that a reasonable cause of action means either a single fact, or combination of facts averred by a Plaintiff in his pleadings which the law recognizes as giving him a right to make claim against a Defendant and seeking judicial remedy from the Court. See also Thomas v Olufosoye (1986) 1 NWLR (Pt. 18) 669. A Claimant who feels its rights have been or is being trampled upon has a right to ventilate its grievance before a Court of competent jurisdiction and at that stage the Court is not concerned with whether or not the Plaintiff will succeed in proving his claim.

 

21.   There is no doubt that the decisions in Suit No.: NICN/LA/49/2015 and Suit No.: NICN/MKD/04/2019 are final decisions of a competent Court of law which are subsisting but in the considered view of this Court, the 1st Defendant/Applicant has not satisfactorily and successfully established the pre-conditions for the invocation of the doctrine of estoppel per rem judicata as the law is that unless all these constituent elements or requirements of the doctrine are fully established, the plea cannot be sustained. The conditions must be satisfied conjunctively and failure to establish any of them is fatal to the plea of res judicata – Omiyale v Macaulay (2009) 7 NWLR (Pt. 1141) 597, Daniel Tayar Transport Enterprises Nig. Co. Ltd v Busari (2011) 8 NWLR (Pt. 1249) 387.

 

22.   On the whole, the Court finds merit in part in the instant application having found the Claimant’s relief three in the instant suit to have the same import with its relief one in Suit No.: NICN/LA/49/2015 thereby robbing this Court of jurisdiction to entertain same. For purpose of reiteration, the 1st Defendant/Applicant’s objection with respect to the Claimant’s relief three is upheld and the Claimant’s relief three in Suit No.: NICN/LA/75/2023 is accordingly struck out. The other legs of the 1st Defendant/Applicant are overruled and Learned Applicant’s Counsel submissions accordingly discountenanced for wanting in merit. I so find and I so hold. The matter is set down for trial.

 

23.   No order as to cost, parties to bear their respective costs.

 

24.   Ruling is accordingly entered.

 

 

Hon. Justice M. N. Esowe, FCIArb

Presiding Judge