CASE SUMMARY OF:
Julius Berger Nigeria Plc & Anor v. Mrs. Philomena Ugo (2020) - CA
by NSA PaulPipAr
AREA OF LAW
- Administrative Law
- Judicial discretion.
- Res judicata.
1. Julius Berger Nigeria PLC
2. Godwin Obado
1. Mrs. Philomena Ugo
Court of Appeal
LEAD JUDGEMENT DELIVERED BY:
Ita George Mbaba, J.C.A.
* FOR THE APPELLANT
- Abisola Aarinola (MRS)
* FOR THE RESPONDENT
- Emeka Ozoani Esq SAN
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FACT (as relating to the issues)
This is an appeal against the judgment of Imo State High Court in Suit No. HOW/806/2017, delivered on 24th May, 2018, by Hon. Justice K.A. Ojiako, wherein the Court upheld the preliminary objection raised by the Respondent (in part) and dismissed the plaintiffs' suit on the ground that it was caught up by the doctrine of estoppel and as such was an abuse of the Court process.
The summary of Appellants' claim at the Court below was that some of the receipts tendered by the Respondent (as claimant in Suit No. HOW/581/2007) were procured by fraud/forgery. Therefore, since those receipts which were obtained by fraud/forgery were the basis of the trial Court's award of special damages in favour of the Respondent, those damages awarded by the trial Court in its judgment should be set aside for the obvious fraud.
The Respondent was served the originating processes of this suit (How/806/2012) on the 6th of November, 2017 and instead of filing a defence to contradict the allegations of the Appellant that some receipts relied upon by the trial Court were obtained by fraud/forgery, the Respondent filed a Notice of Preliminary Objection dated 22nd January, 2018, challenging, in limine, the jurisdiction of the lower Court to adjudicate over the Suit on the ground that the Suit at the lower Court was based on the issue of fraud/forgery, which had been determined by the Court of Appeal in its interlocutory ruling (on an interlocutory application filed by the Appellants) in CA/OW/146/2010, on 28/3/2013.
Appellants had filed a counter affidavit to the preliminary objection, in opposition. The parties filed written addresses and after taking arguments on the preliminary objection, the trial Court, in a considered Ruling, delivered on 24/5/2018, upheld the preliminary objection, in part, agreeing with the Respondent, that Appellants' suit as constituted, was caught up by the doctrine of issue estoppel.
It also held that the suit was an abuse of the process of the Court. The lower Court proceeded to dismiss the suit and awarded cost of N350,000.00 (Three Hundred and Fifty Thousand Naira) to the Respondent as cost, against the Appellants.
Dissatisfied, hence this appeal by the plaintiff.
1. Having regard to the Ruling of this Honourable Court, delivered on 28/3/2013 in Appeal No. CA/OW/146/2010, whether the Trial Court was right to hold that Appellants' suit No. HOW/806/2017 was caught up by issue estoppel and was an abuse of the Court process, and was an afterthought?
2. Was the Suit No. HOW/806/2017 caught-up by issue estoppel, abuse of the Court process and an afterthought?
RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANTS BUT IN FAVOUR OF THE RESPONDENT.
i. Appellants' attempt to resort to claims of fraud/forgery against the Respondent, for which they sought to lead fresh evidence on appeal (CA/OW/146/2010), to change the judgment of Court in HOW/581/2007 clearly shows the motive for embarking on this ill-fated suit HOW/606/2017. They (Appellants) are not happy with the judgment in HOW/581/2007 and want it frustrated and defeated, at all cost! Of course, having taken part in the trial of the suit (HOW/581/2007) to conclusion, and having also used Appeals to defeat that decision unsuccessfully thus far, Appellants must bow to the outcome of the existing judicial process in the case, which are binding on them.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANTS BUT IN FAVOUR OF THE RESPONDENT.
i. But the issue of cost to be awarded is always at the discretion of the trial Court (or Court making the award) and can only be faulted, if it was not exercised judicially and judiciously. I do not see any reason to disturb the cost awarded by the trial Court, I resolve this issue too against the Appellants.
S. 14(1) of the Court of Appeal Act;
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Bank: Zenith Bank.
Name: Branham Paul Chima.
Account No.: 2178756839.
Appellants elected to file this fresh action (HOW/806/2017), over seven years after taking the option of appeal to set aside the judgment in HOW/581/2007, to impeach the same judgment of the trial Court in HOW/581/2007, determined since 2009! I lack appropriate words to describe the depth of the depravity, impunity and abuse of the Court process, displayed by Appellants and their Counsel in this case! No lawyer worth his name should engage in this type of practice, which appears as a deliberate act of mischief to frustrate, annoy and oppress a successful party in litigation, pretending to pursue a Court process. - Mbaba, JCA. Berger v. Ugo (2020)
As argued by the learned Senior Counsel for Respondent, a party who seeks to set aside a judgment of the Court, for having been obtained by fraud, can do so by either of two ways, namely by means of appeal against the said judgment, or by means of a fresh action (for motion in the same Court) seeking to set aside the said judgment. See Vulcan Gases Ltd V. Gesellschaft Fur Industries A.G. (2001) 9 NWLR (Pt.719) 610 at 668. The party, in my opinion, cannot take the two option simultaneously, or after the failure of the other. - Mbaba, JCA. Berger v. Ugo (2020)
The end of this brief.
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