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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE JOS JUDICIAL DIVISION

HOLDEN AT JOS

BEFORE HIS LORDSHIP HON. JUSTICE I.S. GALADIMA

 

DATE: 26TH MAY 2026                                                   SUIT NO: NICN/JOS/51/2024

BETWEEN:

MR. AUGUSTINE DAUDA                       ----------        CLAIMANT/RESPONDENT

AND

  1. NIGERIA ELECTRICITY LIABILTY --------                  1st DEFENDANT

MANAGEMENT LIMITED/GTE.

2.    BUREAU OF PUBLIC ENTERPRISES -----                 2nd DEFENDANT/APPLICANT

 

REPRESENTATION:

  • F.A Onochie, D.U. Egbele, for the Claimant/Respondent.
  • E. Iyamu for the 2nd Defendant/Applicant.
  • 1st Defendant not represented. 

 

RULING:

  1. This ruling relates to the 2nd Defendant’s Motion on Notice dated 13 March 2025, brought pursuant to the relevant provisions of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, and under the inherent jurisdiction of this Honourable Court.
  2. The 2nd Defendant seeks for the following principal reliefs:
    1. An Order of this Honourable Court striking out the suit against the 2nd Defendant/Applicant (Bureau of Public Enterprises) for lack of jurisdiction.
    2. And for such further order (s) as the honourable court may deem fit to make in the circumstances. 
  3. The application is predicated on 5 grounds which are stated below:
    1. That the entire facts and reliefs sought by the Claimant have already been decided upon by both the Federal High Court and the Court of Appeal.
    2. That the parties, subject matter and issues in this suit are the same as those of the Federal High Court and the Court of Appeal in which both courts have given judgment against the Claimant, making this action before this Court (National Industrial Court) a clear violation of the doctrine of estoppel per rem judicata/res judicata.
    3. That the case of the Claimant is a flagrant abuse of court process and tantamount to forum shopping.
    4. That the Claimant’s case discloses no reasonable cause of action against the 2nd Defendant as seen in the reliefs sought in his statement of facts.
    5. In view of paragraphs (a) – (d) above, the suit against the 2nd Defendant ought to be struck out for lack of jurisdiction 
  4. In support of the motion is a 21-paragraph affidavit deposed to by one Martha Sewuese Ibu, a Transaction Officer in Bureau of Public Enterprises Abuja and a written address.  
  5. In the affidavit, she states that although the claimant demanded payment of pension and gratuity from the 2nd Defendant, the Defendant informed him that there was no record showing that he was an ex-staff of the defunct PHCN. According to her, the claimant failed to provide any evidence to establish his alleged employment or entitlement to such benefits but nonetheless proceeded to institute the present action.
  6. She further stated that the Claimant had earlier filed the same suit at the Plateau State High Court, which was later transferred to the Federal High Court because that court lacked jurisdiction. The Federal High Court then entered judgment against the Claimant, and the Court of Appeal affirmed the decision, also finding that the action was statute-barred.
  7. Finally, she contends that the present suit is an afterthought, reveals no reasonable cause of action against the 2nd Defendant, and that the Defendant was improperly joined. She further maintains that the Claimant is unknown to the 2nd Defendant and that the action is frivolous and constitutes an abuse of court process and therefore should be dismissed.
  8. In the written address the defendant/applicant raised two issues for determination:
  9.  Whether or not this suit is a violation of the doctrine of estoppel per rem judicata/res judicata?
  10. Whether or not this suit is an abuse of court process?

        

  1. On the first issue, it is argued that the claimant’s suit is a clear violation of the doctrine of res judicata, a well-established legal principle that bars parties from re-litigating issues that have already been finally determined by a court of competent jurisdiction. Rooted in the maxims nemo debet bis vexari pro una et eadem causa—meaning no one should be troubled twice for the same cause—and interest reipublicae ut sit finis litium—meaning it is in the public interest that litigation should come to an end—this doctrine is designed to ensure finality in judicial proceedings and uphold the sanctity of court judgments.

 

  1. The Defendant contends that the matters now before this Honourable Court have already been heard and conclusively determined by the Federal High Court, Jos, and were later upheld by the Court of Appeal, Jos. Instead of appealing further to the Supreme Court, the Claimant has chosen to file this new action before this Court. Citing authorities such as Ogunbiyi v. Ishola (1996) 6 NWLR (Pt. 4452) and Ishola v. Ajiboye (1997) LPELR 6264, the Defendant submits that the doctrine of res judicata applies where the parties, subject matter, and issues in both cases are identical, and where there exists a valid and subsisting judgment. The Defendant argues that all these requirements are present in the instant case.

 

  1.  In particular, the Defendant contends that the reliefs claimed by the Claimant before the Federal High Court—covering salaries, allowances, pension, and gratuity—are essentially the same as those now being pursued before the National Industrial Court. In view of the identical parties, issues, and subject matter, as well as the final decisions already delivered by courts of competent jurisdiction, the Defendant argues that this action is incompetent and amounts to an abuse of court process.

 

  1. On the second issue, the Defendant contends that the Claimant’s actions amount to a clear abuse of court process. Relying on the Supreme Court decision in Saraki v. Kotoye (1992) 9 NWLR (Pt. 264), the Defendant explains that abuse of court process involves the improper use of judicial proceedings, including filing multiple suits over the same subject matter or re-litigating issues already determined by a court. The Defendant submits that, since the Claimant had already pursued the matter unsuccessfully at both the Federal High Court and the Court of Appeal, he cannot now validly commence another action before the National Industrial Court.

 

  1. The Defendant further stresses the hierarchical nature of the Nigerian court system, pointing out that the National Industrial Court lacks the jurisdiction to sit on appeal over the decisions of the Court of Appeal. By instituting this action, the Claimant is, in effect, asking this Court to revisit and set aside the judgment of a superior court, a course of action that offends established legal principles and the doctrine of judicial hierarchy. In support of this position, the Defendant cites authorities such as A.G. Ogun State and Anor v. Dr. L.C. Egenty (1986) 1 C.A. (Pt. 11) and Dingyadi v. INEC (2001) 10 NWLR (Pt. 1255) 347, which affirm that decisions of superior courts are binding on inferior courts.

 

  1. Additionally, the Defendant describes the Claimant’s suit as forum shopping, meaning an attempt by a litigant to approach another court in search of a more favourable outcome after an adverse decision has already been made elsewhere. The courts have consistently disapproved of this conduct, as seen in Mailantarki v. Tongo (2017) LPELR 424767 and Idemudia v. Igbinedion University, Okada & Ors. (2017) LPELR 24514 (CA). The Defendant further points out that the Claimant admitted he did not appeal to the Supreme Court because of the expense and delay involved, which is not a lawful basis for bypassing proper legal channels.

 

  1. In conclusion, the Defendant contends that the Claimant’s suit is misconceived, frivolous, and vexatious. The dispute has already been finally determined by courts of competent jurisdiction, and the Claimant’s appropriate recourse was to appeal to the Supreme Court. By filing this action, the Claimant is attempting to re-litigate the same matter, contrary to the doctrine of res judicata, while also abusing the process of court and disregarding the principle of stare decisis. The Defendant therefore respectfully urges the Court to determine both issues in its favour, decline jurisdiction, and dismiss the suit in its entirety.

 

  1. In response, the Claimant’s counsel relied on a 21-paragraph counter-affidavit deposed to by Funmilyo Grace Sunday, a litigation secretary at F.A. Onochie & Associates. She averred that, contrary to the Applicant’s claims, liability for obligations arising from the defunct NEPA/PHCN lies with the 1st Defendant, which stated in its correspondence that the 2nd Defendant is responsible for settling outstanding terminal benefits. She further stated that the Claimant repeatedly wrote to both Defendants demanding payment of his pension and gratuity, and the replies received showed that the 2nd Defendant processes such liabilities when they are forwarded from PHCN. Nonetheless, the Claimant’s entitlements have remained unpaid.

 

  1. She further states that the present suit is different from the earlier action filed by the Claimant at the Plateau State High Court and later transferred to the Federal High Court, because the earlier case dealt with the Claimant’s compulsory retirement, while this action concerns the recovery of his terminal benefits. She also asserts that the parties in the former suit are not the same as those in the present case, since the 2nd Defendant was not involved in the earlier proceedings or in the appeal determined by the Court of Appeal.

 

  1. The deponent insists that the Claimant’s action reveals a proper cause of action against the 2nd Defendant, especially given the correspondence showing that the 2nd Defendant is liable for the payment of those benefits. She further contends that the 2nd Defendant was rightly joined in the suit and that the present case is neither frivolous nor an abuse of the court’s process.

 

  1. Finally, she contends that the Preliminary Objection lacks merit and urges the Court, in the interest of justice, to dismiss it and award substantial costs against the Applicant.

 

  1. The Counter-Affidavit is accompanied by a written address in which the Claimant contends that two issues arise for determination before this Honourable Court.

 

  1. Whether the Claimant’s suit is caught by the doctrine of estoppel per rem judicata, and 
  2. Whether the Claimant’s suit amounts to an abuse of court process. 
  1. On the first issue, it is argued that the present suit is not barred by res judicata and remains valid and competent. The Claimant submits that the Applicant’s reliance on Exhibit “A” — the judgment of the Federal High Court — does not strengthen, but rather weakens, the preliminary objection. A close examination of that judgment reveals that the earlier action was based on a claim for wrongful termination of employment, together with claims for accumulated benefits and damages flowing from the alleged wrongful termination.

 

  1. By contrast, the Claimant argues that this present action is materially different. Referring to Exhibit “B” attached to the Counter-Affidavit, particularly paragraphs 4 to 6, he contends that he is no longer contesting the termination of his employment. Rather, his claim is now for the payment of his accumulated terminal benefits following his compulsory retirement. He further maintains that all the materials before the Court concern only his demand for pension and gratuity, to which he is lawfully entitled, and that this suit became necessary because the Respondents failed and delayed in settling those benefits.

 

  1. The Claimant further contends that the reliefs claimed in the present suit are plainly different from those sought in the earlier Federal High Court action. According to him, the former case concerned wrongful termination and possible reinstatement, whereas this suit seeks declarations establishing his right to terminal benefits, including pension and gratuity, together with general damages for the hardship occasioned by the delayed payment. He therefore argues that the two claims are not identical and that the doctrine of res judicata does not apply.

 

  1. The Claimant also argues that the parties in the two actions are different. According to him, the earlier case was filed against the National Electric Power Authority (NEPA), while the present one is against Nigeria Electricity Liability Management Company Ltd/GTE and the Bureau of Public Enterprises. Since res judicata requires the parties to be the same, he maintains that this difference is enough to undermine the Applicant’s objection.

 

  1. Citing authorities such as Ugo v. Ugo (2008) 5 NWLR (Pt. 1079), N.H. Int’l S.A. v. NICON Hotels Ltd (2007) 15 NWLR (Pt. 1056) at pages 1 and 26–27, and Obasi Bros v. M.B.A.S Ltd (2001) FWLR, Pt. 40, at pages 1647 and 1659, the Claimant sets out the requirements for estoppel per rem judicata to succeed. These include the identity of parties, the identity of issues and claims, sameness of subject matter, a valid and final judgment, and a decision rendered by a court of competent jurisdiction. The Claimant emphasizes that all these elements must be present together, and that the absence of any one of them defeats the plea. In the present case, the Applicant has failed to prove both the identity of parties and the sameness of the issues and subject matter.

 

  1. The Claimant further contends that the burden of proving res judicata lies on the Applicant, and that the Applicant has failed to satisfy that burden. Relying on C.C.C.T.S Ltd v. Ekpo (2008) 6 NWLR (Pt. 1083) 330 at 395, the Claimant stresses that he who alleges must prove and argues that the Applicant has not placed enough evidence before the Court to establish the applicability of the doctrine.

 

  1. On the second issue, the Claimant contends that this suit does not amount to an abuse of court process. Instead, it is the Applicant’s preliminary objection that is said to be frivolous, misconceived, and aimed at delaying the proceedings. The Claimant submits that abuse of court process arises where there is a multiplicity of actions between the same parties in respect of the same subject matter, which, according to him, is not the situation here because both the parties and the cause of action are different. Reliance was placed on authorities such as Tomtee Nig. Ltd v. FHA (2010) All FWLR Pt. 508 p. 400 at 415 and CBN v. Ahmed (2000) 11 NWLR (Pt. 724) p. 369 at 409, to support the position that abuse occurs where judicial process is used improperly or oppressively, especially by duplicating actions over the same issues.

 

  1. In response to the Applicant’s contention that the claims in both suits are similar, the Claimant distinguishes between “similar” and “same,” arguing that mere resemblance does not amount to identity. Since res judicata requires the subject matter and issues to be the same, rather than merely similar, the Applicant’s argument cannot succeed. The Claimant also submits that the allegation of forum shopping is unfounded, because the present suit arises from a different cause of action and does not attempt to reopen the earlier dispute or ask this Court to act as an appellate court over the Court of Appeal’s decision.

 

  1. The Claimant maintains that the Applicant’s preliminary objection is baseless, deceptive, and intended to hinder the Claimant’s rightful claim. He argues that the present suit is different from the earlier action in both parties and subject matter, and is therefore neither barred by res judicata nor an abuse of court process. The Court is therefore urged to decide both issues in the Claimant’s favour, dismiss the preliminary objection with substantial costs, and permit the substantive suit to continue.

 

  1. The 2nd Defendant/Applicant filed a Further and Better Affidavit sworn to by Nomeh Emmanuella C., a Litigation Secretary in the law firm of Lawfield (Barristers & Solicitors), counsel to the Applicant. She stated that, having considered the Claimant’s counter-affidavit, the Applicant denies paragraphs 3 to 15 of that affidavit as false and misleading. She further averred that the earlier deponent did not deal with questions of law, but rather with facts within her personal knowledge. According to her, the affidavit originally filed in support of the Notice of Preliminary Objection was made by a Transaction Officer of the 2nd Defendant who was familiar with the facts of the matter and had examined the judgments of both the Federal High Court and the Court of Appeal, which were resolved against the Claimant.

 

  1. The deponent further averred that the Claimant was wrong to say the parties are different, since the present Defendants are privies of the defunct National Electric Power Authority (NEPA). She explained that the 1st Defendant was established as a special purpose vehicle to handle NEPA’s liabilities and non-core assets after privatization, while the 2nd Defendant oversaw the privatization exercise and the formation of the 1st Defendant. She added that the Claimant was aware that NEPA had ceased to exist, which is why he brought the present action against the 1st and 2nd Defendants.

 

  1. She further stated that the letters the Claimant relied on in his counter-affidavit were only written in 2024, long after the Federal High Court’s judgment in 2007 and the Court of Appeal’s decision in 2015. In her view, the letters amount to a mere fishing expedition and an attempt, in bad faith, to reopen a matter that has already been finally settled. She maintained that the Federal High Court had dismissed the Claimant’s suit as statute-barred and without merit, and that the Court of Appeal affirmed that decision, to which she attached a certified true copy of the appellate judgment.

 

  1. The deponent further observes that the Claimant admitted in his counter-affidavit that, after the Court of Appeal’s judgment, he did not appeal to the Supreme Court but instead instituted the present suit. She maintains that the Claimant’s denial of privity between NEPA and the current Defendants is unfounded, insisting that NEPA, PHCN, and Jos Electric Distribution Company are connected to the Defendants as successors-in-interest.

 

  1. Finally, she submits that the Claimant’s account of the proceedings at the State High Court is misleading, because the matter was not decided there; rather, it was transferred to the Federal High Court, where judgment was entered against the Claimant and later upheld on appeal.

 

  1. In response to the Claimant/Respondent’s arguments, the 2nd Defendant/Applicant, in its reply on points of law to the issues raised by the Claimant, submits that although the Claimant was right in stating that certain conditions must be met for a plea of estoppel per rem judicata to succeed, as laid down in authorities such as Oshodi v. Eyifunmi, Ugo v. Ugo, and Obasi Bros v. M.B.A.S. Ltd., those conditions are, according to the Applicant, fully present in this case. Relying on Oshodi v. Eyifunmi, the Applicant maintains that the required elements are identity of parties or their privies, sameness of subject matter and issues, a final and conclusive judgment, a valid and subsisting judgment, and a decision delivered by a court of competent jurisdiction.

 

  1.  On the question of whether the parties or their privies are the same, the Applicant contends that, even though the parties are not identically named, the Defendants in this case are privies of the defunct National Electric Power Authority (NEPA). Relying on judicial authorities defining a “privy,” the Applicant submits that a privy is anyone who acquires an interest in the subject matter through one of the original parties. It argues that the 1st Defendant was established by the 2nd Defendant to handle NEPA’s liabilities and non-core assets after privatization, and that this makes both Defendants privies of NEPA. Accordingly, their interests are said to be directly tied to, and affected by, the outcome of the earlier case between the Claimant and NEPA.

 

  1. On the question of whether the claims and issues are the same, the Applicant contends that the reliefs sought in the earlier suit before the Federal High Court and those in the present suit before the National Industrial Court are essentially the same. In the former case, the Claimant sought a declaration that he was entitled to pension and gratuity based on a specified grade level, whereas in the present action he is asking for declarations and payment of terminal benefits, including pension and gratuity. According to the Applicant, these claims are, in substance, identical. It further submits that the Court is permitted to look into the pleadings, proceedings, and judgment in the earlier case to ascertain the real issues decided, as recognized in Oshodi v. Eyifunmi and Fadiora v. Gbadebo. The Applicant also maintains that the Federal High Court had considered and dismissed those claims on the merits..

 

  1. The Applicant stresses that the Federal High Court’s decision was a final and conclusive judgment, not an interlocutory one. The Court specifically found the action to be statute-barred and without merit, and it dismissed all of the Claimant’s claims. That ruling was later upheld by the Court of Appeal, further confirming its finality. The Applicant cites Saraki v. Kotoye (supra) in support of the binding effect of such judicial pronouncements.

 

  1. It is further argued that the judgments of the Federal High Court and the Court of Appeal are still valid and subsisting, as neither has been set aside or reversed by the Supreme Court. Consequently, they remain binding on the parties and their privies. The Applicant further submits that both courts are courts of competent jurisdiction under the Constitution, and their decisions must be given full legal effect.

 

  1. In summary, the Applicant contends that every requirement for the application of estoppel per rem judicata has been met in this matter. Since the claims and issues have already been finally resolved by courts of competent jurisdiction, the present suit is a nullity. Citing the well-known principle in Macfoy v. UAC Ltd (1961) 3 All ER 1172—that nothing can be built on nothing—the Applicant submits that the Claimant’s case is fatally defective and cannot be sustained. The Court is therefore urged to hold that the action is barred by res judicata and to dismiss it with substantial costs in favour of the Applicant.

 

  1. Counsel for both parties adopted their respective processes on 3 March 2026, thereby necessitating this ruling today.

 

RESOLUTION

  1. After considering the arguments advanced by learned counsel on both sides, the only issue for determination is whether this Court has jurisdiction to hear this suit in light of the plea of res judicata and the allegation of abuse of court process.

 

  1. The Applicant argues that the matters now placed before this Honourable Court were already litigated and finally determined by the Federal High Court, Jos, and upheld by the Court of Appeal, Jos, so the Claimant is barred from reopening them. The Claimant, on the other hand, maintains that this suit is different in respect of both the parties and the subject matter, and is therefore not barred by res judicata.

 

  1. The law is settled that for a party to successfully rely on estoppel per rem judicata, certain conditions must be satisfied together. These include: identity of parties or their privies; identity of the subject matter and issues; a final and conclusive decision; a valid and subsisting judgment; and that the earlier decision was given by a court of competent jurisdiction. See Oshodi v. Eyifunmi (2000) 3 NSCQR 320; (2000) 12 NWLR (Pt. 684) 298; Obasi Bros. Merchant Ltd v. M.B.A.S Ltd (2001) FWLR (Pt. 40) 1647; Ugo v. Ugo (2008) 5 NWLR (Pt. 1079) 1. It is equally trite that all these requirements must exist cumulatively, and the absence of any one of them is fatal to the plea.

 

  1. On the question of identity of parties, the Claimant contends that the Defendants in this suit are not the same as the Defendant in the earlier action, which was filed against the defunct National Electric Power Authority (NEPA). However, the law is settled that estoppel applies not only to the parties themselves but also to their privies. A privy is a person whose interest in the subject matter of the litigation is derived through or from a party. See Ndulue v. Obinaguoha (2013) LPELR-22576 (CA); Emecheta v. Sowemimo & Ors (2018) LPELR-50399 (CA). From the affidavit evidence placed before the Court, it is evident that the 1st Defendant was created to assume NEPA’s liabilities and non-core assets upon privatization, while the 2nd Defendant played a key role in that process. In that sense, both Defendants are successors-in-interest and privies of NEPA. Consequently, the requirement of identity of parties or privies has been met.

 

  1. On the question of whether the subject matter and issues are the same, the Court carefully reviewed the pleadings and reliefs sought in both actions. In the earlier case before the Federal High Court, the Claimant, among other things, asked for declarations that he was entitled to pension and gratuity calculated on a specified grade level. In the present suit, he is again seeking declarations that he is entitled to payment of his terminal benefits, including pension and gratuity. The law allows the Court to look into the pleadings, proceedings, and judgment in the former case to determine whether the issues are identical. See Oshodi v. Eyifunmi (supra); Fadiora v. Gbadebo (1978) 3 SC 219. A proper comparison shows that the central issue in both cases is the Claimant’s entitlement to terminal benefits from his employment. Simply putting the claim in different words does not change its substance. I therefore find that the subject matter and issues in both suits are the same.

 

  1. As to the character of the earlier decision made since 26 June 2007, the Federal High Court, Jos, per Honourable Justice C.E. Achibong, dismissed the Claimant’s suit on the basis that it was statute-barred and lacked merit. That decision was not interlocutory; rather, it amounted to a final and conclusive determination of the parties’ rights. The Court of Appeal later affirmed it on 30 April 2015. A decision of a court of competent jurisdiction remains valid and binding until it is set aside. See Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156; Dingyadi v. INEC (2011) 10 NWLR (Pt. 1255) 347.

 

  1. There is nothing before this Court to show that the judgments of the Federal High Court in 2007 and the Court of Appeal in 2015 have been overturned by the Supreme Court. As such, those decisions remain valid, subsisting, and binding. Both courts are courts of competent jurisdiction under Section 6 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Consequently, the other requirements for the application of res judicata have also been met.

 

  1. The implication of the foregoing is that the Claimant is precluded from re-litigating the same issues before this Court. The Supreme Court has repeatedly affirmed that where a matter has been conclusively determined by a court of competent jurisdiction, the same parties or their privies cannot reopen it in subsequent proceedings. See Ogunbiyi v. Ishola (1996) 6 NWLR (Pt. 452) 12.

 

  1. On the issue of abuse of court process, filing a new action over the same subject matter after it has already been finally determined amounts to an abuse of court process. Abuse of court process has been described as the improper use of judicial procedure in a manner that obstructs the fair administration of justice. See Saraki v. Kotoye (supra); CBN v. Ahmed (2001) 11 NWLR (Pt. 724) 369. By commencing this action instead of appealing to the Supreme Court, the Claimant has attempted to relitigate matters that have already been resolved, and this Court cannot allow that.

 

  1. In the final analysis, I hold that the Notice of Preliminary Objection is well-founded. The Claimant’s suit is barred by the doctrine of estoppel per rem judicata and amounts to an abuse of court process and is therefore incompetent. Relying on the authority of Macfoy v. UAC Ltd (1961) 3 All ER 1169, nothing can stand on nothing.

 

  1. Accordingly, this suit is hereby dismissed for lack of jurisdiction.

 

RULING DELIVERED IN JOS THIS 26TH DAY OF MAY 2026

 

HON. JUSTICE I.S GALADIMA

JUDGE.

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