KANTOMA vs. WUTA(2022)LCN/16984(CA)
PRINCIPLE:
“At the outset, I stated that the Appellant had raised the issue of estoppel per rem judicatam as a preliminary objection before evidence was adduced. The lower Court in its ruling held that the doctrine of estoppel per rem judicatam was inapplicable. The Appellant, I iterate, did not appeal against the said ruling. I have already set out the grounds and particulars on which the preliminary objection was predicated. The issue which the Appellant distilled for determination on the preliminary objection and which was adopted by the lower Court (see page 206 of the Records) is “whether or not the instant suit constitutes an abuse of Court process and liable to be dismissed.”
Notwithstanding the manner in which the preliminary objection was resolved, the Appellant trudged on without appealing against the same. After adduction of evidence at the trial, the Appellant in his final address formulated the first issue for determination in the trial, as follows:
“Whether from the pleadings and totality of evidence before the Court, the plaintiff’s claim does not constitute an abuse of Court/judicial process and liable to be dismissed.”
It is rudimentary law that the part of the judgment which constitutes the decision of the Court and which is appealable is the ratio decidendi. It is the principle decided that is the important thing and it constitutes the ratio decidendi which can be appealed against. The manner in which the Court argues or reasons the case in arriving at its decision is not important. See UTC (NIG) LTD. vs. PAMOTEI (1989) 2 NWLR (PT. 103) 244; AFRO CONTINENTAL NIG. LTD. vs. AYANTUYI (1995) 9 NWLR (PT. 420) 411; AIC LTD. vs. NNPC (2005) LPELR (6) 1 at 24-25; OLEKSANDR vs. LONESTAR DRILLING CO. LTD. (2015) LPELR (24614) 1 at 22-23 and SAIPEM CONTRACTING NIGERIA LTD. vs. FIRS (2018) LPELR (45118) 1 at 64.
Now, how did the lower Court resolve this issue number one distilled by the Appellant in his final address before the lower Court. This is what the lower Court stated at page 312 of the records:
“I agree with the submission of the plaintiff’s Counsel that by virtue of the aforesaid ruling in respect of the preliminary objection, this Court is functus officio as far as the ground of objection i.e. abuse of Court process is concerned.”
The lower Court then conclusively held as follows at pages 313-314 of the Records:
“In conclusion, I agree absolutely with submission of the Plaintiff’s Counsel that the 1st issue is a non-issue. It is indeed a dead issue as far as this Court, as a trial Court, is concerned. It can only be resuscitated by appeal.
The only live issue before the Court therefore is issue No. 2 …”
From the above extract from the judgment of the lower Court, the decision of the lower Court on the said issue is that based on the ruling on the preliminary objection, it had become functus officio and could no longer revisit the said issue and that the Appellant’s recourse ought to be by way of appeal against the Ruling on the preliminary objection. Before I consider whether the lower Court was correct in holding that it was functus officio, let me state that the Appellant is not correct in his contention that the lower Court misapplied the ratio in FIRST BANK vs. T. S. A. IND. LTD. (supra). This is what the lower Court said at page 313 of the records: “More specifically, in FIRST BANK OF NIGERIA PLC V. T.S.A. INDUSTRIES LIMITED (supra), the Supreme Court held that once an issue has been decided one way or the other by the Court in a matter between the same parties, it cannot revisit or review the said decision except under certain conditions. In other words unless there are established grounds before the Court to set aside its decision, such as fraud, lack of jurisdiction or deceit, the Court lacks jurisdiction to determine an issue when it is functus officio in respect of the issue or where the proceedings relating to the issue constitute an abuse of Court process. “
In the above pericope, the lower Court made reference to the instances where a Court can set aside its decision. Quite apart from the fact that the said instances are not present in this matter, the Appellant did not urge the lower Court in his final address to set aside the decision it reached on the preliminary objection. The Appellant raising the issue of abuse of process which had been decided in the preliminary objection, rather than be an invitation for the lower Court to set aside its decision on the issue, is in actual sense an invitation for the invocation of the doctrine of issue estoppel against the Appellant. The lower Court properly applied the decision in FIRST BANK vs. T.S.A. IND LTD. (supra).
Now, was the lower Court correct in holding that it was functus officio? The Latinism functus officio, literally means “having performed his or her office”. In the context of a Judge, it means that the duty or function that the Judge was legally performed or charged to perform, has been wholly accomplished and that the Judge has no further authority or legal competence to revisit the matter. See ALOR vs. NGENE (2007) 17 NWLR (PT. 1062) 163 at 170-180; OGOLO vs. OGOLO (2006) 5 NWLR (PT. 972) 173 at 187 and UGO vs. UGO (2017) LPELR (44809) 1 at 25-26. In the instant case, the lower Court, having decided in the preliminary objection that the doctrine of estoppel per rem judicatam was not applicable, could not revisit the same when the Appellant raised the issue again in his final address. The lower Court, having performed the duty or function it was legally empowered or charged to perform in its decision on the matter in the preliminary objection, had no further authority or legal competence to revisit the matter. Indeed, it was functus officio; the recourse open to the Appellant was to appeal against the Ruling of the lower Court on the preliminary objection which he failed to do.
The principle of issue estoppel is an estoppel inter partes which is applicable where an issue had previously been decided upon by a Court of competent jurisdiction and the issue comes up again in the same or subsequent proceeding between the same parties (or their privies), a party is precluded from contending the contrary or opposite of the issue that had been so decided. In the circumstance of this matter, the lower Court having decided the Appellant’s preliminary objection in the manner in which it did, the Appellant cannot be had to again contend in his final address that the Respondent’s action was caught by the doctrine of estoppel per rem judicatam. The lower Court was therefore correct when it held that the issue as raised by the Appellant again, was a “non issue” and “dead issue” which “can only be resuscitated by appeal”. See generally FADIORA vs. GBADEBO (1978) LPELR (1224) 1 at 12-14; ODJEVWEDJE vs. ECHANOKPE (1987) LPELR (8049) 1 at 42; ORIOYE vs. ABINA (2019) LPELR (47864) 1 at 30-38 and PROJECT VISION ACTUALIZERS LTD. vs. ILUSHIN ESTATES LTD. (2021) LPELR (55629) 1 at 37.
I have not lost sight of the Appellant’s submissions on why the decision of the lower Court on the preliminary objection is not correct. Unfortunately, the Appellant did not appeal against the Ruling of the lower Court on the preliminary objection. This appeal is not against the ruling on the preliminary objection which was delivered on 17th March, 2016. The Notice of Appeal at page 331 of the records clearly records that the Appellant’s dissatisfaction and appeal is against the judgment/decision of the lower Court delivered on 10th November, 2017. That is the decision in which the Notice of Appeal has activated the jurisdiction of this Court to adjudicate upon. Any defects in the decision arrived at in the ruling of 17th March, 2016 would await when, and if, there is a competent appeal in that regard. In a coda, this issue number one is resolved against the Appellant.” Per OGAKWU, JCA.