ADEGBANKE v. OJELABI & ORS (2021) LCN/4982(SC)
In The Supreme Court
On Friday, June 04, 2021
SC.115/2008
Before Our Lordships:
Mary Ukaego Peter-Odili – Justice of the Supreme Court of Nigeria
Kudirat Motonmori Olatokunbo Kekere-Ekun – Justice of the Supreme Court of Nigeria
Ejembi Eko – Justice of the Supreme Court of Nigeria
Ibrahim Mohammed Musa Saulawa – Justice of the Supreme Court of Nigeria
Adamu Jauro – Justice of the Supreme Court of Nigeria
Between
Moses Olayiwola Adegbanke – Appelant(s)
And
Dr. Toyin Ojelabi 2. Executive governor of oyo state 3. Director General ministry of lands
Respondent(s)
Appearances:
Oladipo Olasope (SAN) with him, Ebhodage Esq,. and Emmanuel Idahosa Esq. – For Appellant(s)
L.A. Folorunso Esq. – For the 1st Respondent.
2nd and 3rd Respondents were served but unrepresented. For Respondent(s)
Mary Ukaego Peter-Odili, J.S.C. (Delivering the Leading Judgment):
This is an appeal against the decision of the Court of Appeal, Ibadan Division or Court below or lower Court, Coram: M.D. Muhammad, J.I. Okoro JJCA (as they then were) and A.P.E Awala JCA. The Court below allowed the appeal of the respondents herein by its decision of 18/04/2007 and it is against that judgment that the appellant has come to the Supreme Court.
The grouse of the appellant was that Suit No. HOY/7/97 which had been terminated was the same as this suit and as such constituted an abuse of the process of Court. The learned trial judge in a ruling dismissed the application on the grounds that the previous Suit No. HOY/7/1997 which was dismissed in limine could not form the basis for res-judicata to prevent the filing of Suit HOY/6/1998. At page 44 of the record, the Learned Trial Judge held as follows:
“l am persuaded that the previous suit was dismissed on the ground that the Plaintiff instituted the action on behalf of Ajayi Family instead of Akinsanya Akanji Section of Ajayi Family. This was a procedural defect and the case itself was dismissed in limine and not on merit. I therefore do not consider the institution of the present action as either vexatious or an abuse of the process of Court.”
It is against that ruling that the respondents herein appealed to the Court of Appeal. In the Court of Appeal, the Learned Justices in considering the appeal, suo-motu raised the effects of Sections 287 and 270 of the 1999 Constitution, decided on it without affording the parties an opportunity to address on the point.
The justices did not consider the issue in the appeal which was the effect of a dismissal not on the merit. The argument before the Court of Appeal was that since No. HOY/7/1997 was dismissed on a preliminary point of law, such dismissal could not amount to a dismissal on the merit barring filing of a subsequent action i.e HOY/6/1998. The appellant felt that the Court of Appeal in this instance failed to follow the Supreme Court authorities of KOSSEN V SAVANNAH BANK (1995) 12 S.C.N.J 29 AT 40 AND OBASI BROTHERS v MBA SECURITIES (2005) ALL FWLR PT. 261 AT 232 which were brought to their notice to the effect that a dismissal not on the merit has the effect of a mere striking out.
It is against that decision of the Court of Appeal, that the appellant has decided to appeal to the Supreme Court. The notice of appeal is at pages 119 — 121 of the record. Leave to appeal on grounds other then law was obtained at the Court of Appeal on 19/6/2007 in compliance with Section 233(3) of the 1999 Constitution.
He went further to say for the 1st respondent that the Court as master of the Law and its Rules is bound to consider all issues based on facts and relevant law in reaching the justice in a matter before it. He cited Madam Helen Obulor & Ors v Linus Weso Oboro (2001) FWLR (pt.47) 1004 at 1007.
For the 1st respondent, it was submitted that the consideration of the Constitution of the Federal Republic of Nigeria had not occasioned a miscarriage of justice and does not constitute a reason for the Supreme Court to reverse the judgment of the Court below. He referred to Chief Johnson Imah & Anor v Chief Ajowele Okogbe & Anor (1993) 12 SCNJ 57 at 77.
Learned counsel for the 1st respondent stated further that the failure of the Court to give an opportunity to the parties to address on a subject does not always occasion a substantial miscarriage of justice, as each case depends on its own merit. He relied onOladejo Adewuyi Ajuwon & Ors v Fadele Akanni & Ors (1993) 12 SCNJ 32 at 52.
I posit most humbly that the Lower Court (Court of Appeal) rightly found that the Appeal before it bordered on the import of Sections 270 and 287 of 1999 Constitution of Federal Republic of Nigeria (reproduced above) as well as Order 24 Rules (2) (4) of the High Court Civil Procedure Rules of Oyo State.
In the case at hand, the appellant had filed the instant suit between the same parties in respect of the same subject matter and issues as in Suit HOY/7/97 that had been dismissed.
The issue before the lower Court is whether or not the dismissal of suit HOY/7/97 could act as a subsequent bar to filing of Suit HOY/6/98. The argument of both parties was whether or not HOY/7/97 was dismissed in limine or on the merits and what effect that dismissal had on the filing of a new suit. While the appellant herein contended that Suit HOY/7/97 was dismissed in limine and as such could not be a bar to a subsequent action, the respondents took a contrary view.
For the appellant, that what happened at the Court below could be cured by a simple amendment and so the dismissal of the action cannot translate to a dismissal on the merit. That the Suit No. HOY/7/97 was dismissed in limine without a hearing of the case on the merit hence its effect was a mere striking out. That the Court below had not considered the above position and had erroneously gone into raising the issues of Sections 287 and 270 of the 1999 Constitution without affording the parties an opportunity to address on the point. The appellant further contended that the dismissal of HOY/7/97 was not a bar to the filing of a subsequent action such as HOY/6/98 which did not constitute an abuse of the Courts process.
The opposing contention of the respondent being that the consideration of the provisions of Sections 270 and 287 of the Constitution of the Federal Republic of Nigeria by the Court of Appeal in arriving at its judgment has not occasioned any miscarriage of justice to the appellant. That the order of dismissal put an end to the claim of the appellant and created a bar to the subsequent suit hence the institution of Suit No. HOY/6/98 by the appellant, after that earlier dismissal of HOY/7/97 constitutes an abuse of Court process.
The Appellant had earlier instituted Suit No. HOY/7/97 against the Respondents in respect of the land, the subject matter of this Suit in which he claimed 8 reliefs including the ones being claimed by the Appellant in this case. Suit No. HOY/7/97 was dismissed by the High Court on 5th day of February, 1998 on the ground that the Statement of Claim which the Appellant filed did not disclose a reasonable cause of action.
The appellant filed an appeal against dismissal of Suit No. HOY/7/97 and later filed Suit No. HOY/6/98.
The 1st Respondent filed an application for dismissal of Appellant’s case in Suit HOY/7/97 and this suit is the land in dispute at Igbo-Ede. The trial Court also found that reliefs in the Suit No. HOY/ 7/97 includes the reliefs being claimed in this suit but nevertheless the action was held not to be vexatious or constitute an abuse of the process of the Court.
The reference by the Learned Justices of the Court of Appeal to Sections 270 and 287 of 1999 Constitution of the Federal Republic of Nigeria while arriving at their decision and judgment does not amount to raising a fresh issue which necessitated further addresses of counsel and that the reference has not occasioned miscarriage of justice.
The appeal clearly lacks merit and I dismiss it. I order costs of one Million (N1,000,000) to the 1st respondent to be paid by the appellant.
In conclusion, I hold that this appeal is devoid of merit and same is hereby dismissed. I abide by all the consequential orders made in the lead judgment.
