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The claimant, by a General Form of Complaint filed on 25th August, 2015, with the accompanying frontloaded documents, approached the Court for the following reliefs: i) An Order of this Honourable Court directing that this case even though instituted on representative basis, be and is hereby consolidated in one case ii) An Order of this Honourable Court directing this 1st defendant to pay one year gross salary to all the affected staff as compensation. iii) An Order of this Honourable Court directing the 1st Defendant to pay their salaries from the date of unlawful terminated to date of settlement. iv) An Order of this Honourable Court directing the 1st defendant to pay the Claimants for breach of contract v) An Order of this Honourable Court directing the 1st and 2nd Defendants to jointly pay the sum of N2, 500,000.00 being the cost accessed for processing this case. The Defendants filed a NOTICE OF PRELIMINARY OBJECTION on 22nd February, 2016 praying the Court that the claimant’s action be struck out for being incompetent, an abuse of court process and frivolous. GROUNDS FOR THE OBJECTION 1. The Claimant’s action is an abuse of due process of court 2. The Honourable lacks jurisdiction to hear it 3 It is res judicata 4. Counsel’s Stamp and seal were not affixed to Complaint and all other processes thereto. The 2nd defendant raised the sole ISSUE Whether by the Complaint there is a cause of action against the 2nd Defendant? Learned Counsel for the 2nd defendant submitted that the 2nd Defendant cannot be subjected to the cost and time of litigation merely on the allegation in Paragraph 36 of the Statement of Facts that both the 1st and the 2nd Defendants have not communicated the terms of settlement and to him and others. Even if the allegation is correct, which is not conceded, the Claimant has not pleaded or shown any law or duty owed him as a member of the union breached to make the union liable to be sued. He stated that the instant suit is an abuse of court process as it is employed to irritate and annoy the 2nd Defendant and that it is clear that the Claimant and the other 42 persons by their action are saying that they have rejected the settlement and are keen on pursuing their case as individuals. On the issue of affixing the stamp and seal of the Claimant’s counsel, counsel submitted that the position is today settled as it is now mandatory. That non-fixing of stamp and seal on a legal document by counsel renders it bad in law and liable to be struck out. GENERAL BELLO YAKI & ANOR. V. SENATOR ABUBAKAR BAGUDU & ORS (2015)10— 11 MJSC 129 at 176 per Peter-Odili, JSC. The claimant filed a WRITTEN ADDRESS IN REPLY TO THE 2ND DEFENDANT/OBJECTOR’S PRELIMINARY OBJECTION on 3rd May, 2016. Wherein they raised the 5 ISSUES 1. Whether the Claimant’s action is an abuse of due process of court. 2. Whether this Honourable Court lacks jurisdiction to hear and determine this case. 3. Whether the Claimant’s action is res Judicata. 4. Whether the Claimant is entitled to claim costs from the 2nd Defendant/objector. 5. Whether failure to affix Counsel’s NBA stamp and seal is fatal to this case. ON ISSUE 1 Whether the Claimant’s action is an abuse of due process of court. Learned Counsel to the Claimants Tony Ogbulafor Esq. submitted that the Claimants’ action is not an abuse of court process as abuse of court process has been defined as “multiplicity of actions which involve the same parties and the same subject matter.” Pavex International Co. Ltd. V. IBWA (1 994)5 NWLR (pt.347) 685; Okorodudu v. Okoromadu (1977)3 SC 21 at 32, lines 4-14; COP v. Fasheun (1997)6 NWLR (pt.507) pp. 180-1 85. He submitted that Desirable parties have been defined as “those who have an interest or who may be affected by the result.” Green v. Green (1987) 3 NWLR (PT. 61) 480 Ratio 13. Claimant Counsel urged the court to so hold and discountenance the 2nd Defendant/Objector’s submission that its joinder in the suit amounts to abuse of court process, resolving issue one in favour of the Claimant. ON ISSUE 2 Whether this Honourable Court lacks jurisdiction to hear and determine this case. Counsel to the claimant also submitted that one of the factors determining the Jurisdiction of courts is that the proper parties are before the courts. CBN V. SAP NIG LTD (2005)3 NWLR (pt.911) paragraph 152, Ratio 2; MADUKOLU V. NKEMDILIM (1962)2 SCNLR 341; AJAO V. OBELE (2005)5 NWLR (pt.918)400 at pp. 414-415 paragraph 4-C Ratio 11; SKEN CONSULT V. UKEY (1981)1 SC6. He argued further that the 2nd Defendant/objector’s role in the “out of court settlement” shows its interest in the matter, urging the Honourable Court to assume Jurisdiction to hear and determine this case. ON ISSUE 3 Whether the Claimant’s action is res Judicata. Claimant’s Counsel submitted that this action is not res Judicata as the Law is trite that for an action to be res Judicata all the following pre-conditions must be established; and unless they are established, the plea of res Judicata cannot be sustained: 1. The parties or their privies involved in both previous and present proceedings are the same; 2. That the claim or issue in dispute in both proceedings is the same; 3. That the res or that the subject matter of the litigation in the two cases is the same; 4. That the decision relied upon to support the plea is valid, subsisting and final; 5. That the court that gave the previous decision relied upon to sustain the plea is a court of competent jurisdiction. OKE V. ATOLOYE (1985) I NWLR (pt.15) 241 at 260; YOYE V. OLABODE & ORS. (1974) 1 All NLR (pt.2) 118 at 22; FADIORA V. GBADEBO (1978) 3 SC 219 at 229. Counsel to the claimant further submitted further that the onus of proving the plea of estoppel res Judicatum is on the party who sets it up as a defence. Achiakpa v. Nduka (2001) 7 SCNJ 586 at 601; S.131 (1) of the Evidence Act 2011 as amended. It is Claimant’s counsel’s submission that the Law is trite that an issue or a preliminary objection in respect of which no argument is advanced in the brief of argument and therefore not canvassed before the court must be deemed abandoned. I. K.A. ONAMADE V. AFRICAN CONTINENTAL BANK LTD (1997) 1 NWLR (Pt. 480)123; LEMBOYE V. OGUNSUJI (1990) 6 NWLR (Pt.155)210; AJIBADE V. PEDRO (1992)5 NWLR (pt.241) 257; ARE V. IPAYE (1 986)3 NWLR (Pt.29)415. ON ISSUE 4 Whether the Claimant is entitled to claim costs from the 2nd Defendant/objector. Counsel to the claimant submitted that the principle guiding the award of cost is that cost is awarded as an indemnity to the person who has suffered some loss and that once the act of damnification is found, then, costs follows events. Furthermore, that the essence of costs is to compensate the successful party for part of the loss incurred in the litigation. Reg. Trustees of Ifeloju v. Kuku (1991) 5 NWLR (pt. 189) 65 Ratios 13 & 14. ON ISSUE 5 Whether failure to affix Counsel’s NBA stamp and seal is fatal to this case. Claimant counsel contended that failure of Claimant’s Counsel to affix his NBA stamp and seal does not render the action incompetent that the use of NBA stamp and seal is a condition precedent and as such the grant of their application will not prejudice the 2nd Defendant/Objector in any way. The 2nd defendant’s in reaction filed a REPLY ON POINTS OF LAW BY COUNSEL FOR 2ND DEFENDANT FOR THE NOTICE OF PRELIMINARY OBJECTION filed on 13th May, 2016. On the Claimant’s reliance in the Supreme Court decision in GREEN V. GREEN (1987) 3 NWLR (Pt. 61) 480 counsel submitted that there are no facts for the decision to apply in this case, stressing that decisions of Court are based on facts. He argued that the submission of the Claimant on the issue of wrong joinder of the 2nd Defendant is grossly misplaced as its basis is false and non-existent and ought to be discountenanced by the Court as one cannot put something on nothing and expect it to stand, for it will surely collapse. MACOY V. UAC (1962) AC 152 at 160, (2000) 15 WRN 185. On claimant’s issue 2, counsel submitted that jurisdiction is always founded on a true state of facts in a matter, which is not the position here. It is counsel’s submission that where due process is not followed in commencing an action, it will rob a Court of law the requisite jurisdiction to hear and determine the matter. M.ADUKOLU VS. NKEMDILIM (2001) 46 WRN 1 at 13. He argued that the submission of claimant’s counsel thus: “…………. that the use of NBA stamp and seal is a condition precedent……………..”, is an admission against interest and that the legal implication or effect of admission against interest is stated by the Court of Appeal in J. A. ADEMOYE & ORS V. NIGERIA MARITIME ADMINISTRATION AND SA1tW AGENCY (NIMASA) (2013) 48 WRN 36 at 55— 56. He contended that the Claimant’s counsel having admitted that it is a condition precedent, the Claimant has no defence and that being a condition precedent, it naturally follows that non-compliance with the provision to affix the NBA stamp and seal is fatal to a case. It renders a suit a nullity. Rule 10(1) of Legal Practitioners Rules of Professional Conduct; FBN PLC & ORS V. M NJAWADA (2012) 5 SC (Pt. 111), per Onnoghen, JSC. Counsel argued, noting that the key word in the rule is ‘shall’ which denotes mandatoriness. ENGR CHARLES UGWU & ANOR V. SENATOR IFEANYI ARARUME & ANOR [20071 31 WRN I at 65 at lines 30 – 45; FIRST BANK OF NIGERIA PLC & ORS V. SALMAN MAIWA (2013) 5 NWLR (Pt. 1348) 444 at 483 Paras B — C, per Fabiyi, JSC. On 9th February 2017 parties adopted their written addresses and adumbrated their respective positions. Court’s Decision Having carefully summarized the position of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this ruling and specific mention would be made to them where the need arises. I shall adopt the issues as formulated by the claimant’s five (5) issues as the issues for determining this application; 1. Whether the Claimant’s action is an abuse of due process of court. 2. Whether this Honourable Court lacks jurisdiction to hear and determine this case. 3. Whether the Claimant’s action is res Judicata. 4. Whether the Claimant is entitled to claim costs from the 2nd Defendant/objector. 5. Whether failure to affix Counsel’s NBA stamp and seal is fatal to this case. As regards issue 1, 2 and 3 the defendants in raising their objection argued that the claimants had not established a cause of action against the 2nd defendant and that the matter was res judicata hence the abuse of due process. The defendants have argued that the averment of the claimant in paragraph 36 ‘that both the 1st and the 2nd Defendants have not communicated the terms of settlement and to him and others’ and Relief v; An Order of this Honourable Court directing the 1st and 2nd Defendants to jointly pay the sum of N2, 500,000.00 being the cost accessed for processing this case. The position of the law as regards reasonable cause of action is that A cause of action is said to announce a conclusion of law i.e. that the known facts meet the requirements of a particular, recognized legal basis for obtaining relief from a Court. Cause of action is accordingly the aggregate of facts giving rise to or upon which an enforceable claim is anchored. It is the fact(s) that establish or give rise to a right of action. Cause of action, therefore, consists of all those things necessary to give a right of action. The things so necessary must have happened and so includes every material thereof that entitled the plaintiff to succeed that the defendant has the right to traverse. COMRADE ISHOLA ADESHINA SURAJUDEEN v. MR. ANTTHONY NTED & ANOR. Unreported Suit No. NICN/LA/114/2013 ruling delivered on July 10, 2014. See also S.P.D.C.N. LTD. v. AJUWA (2015) 14 NWLR (PT. 1480) C.A. 403 @ 431. Where the court defined Cause of action as “the fact or facts which establishes or gives rise to a right of action. It is the factual situation which gives a person a right to judicial relief. A cause of action is the right to enforce presently a cause of action … it is an aggregate of facts and circumstances giving rise to the right to file a claim in court for a remedy. It is the factual situation which a plaintiff relies upon to support his claim...” Relying on EGBE v. ADEFARASIN (1987) 1 NWLR (PT. 47) 1; ASABORO v. PAN OCEAN OIL (NIG.) LTD. (2006) 4 NWLR (PT. 971) 595. Also in EDMUND v. NIGEIAN CUSTOMS SERVICE BOARD (2014) 48 NLLR (PT. 157) 401 NIC @ 407. It was held that “a cause of action consists of two elements to wit: The wrongful act of the defendant which gives the plaintiff his cause of complaint. The consequential damage. And this court in the case of NNOSIRI & ORS. v. EASTERN BULKCEM CO. LTD. (2014) 44 N.L.L.R. (PT. 138) 113 It was held that “in determining whether or not a suit should be struck out due to non-disclosure of cause of action, the court must restrict itself to the facts pleaded in the Statement of Claim without resort to any extraneous facts….” MOHAMMED v. BABALOLA SAN (2011) LPELR-CA, per Tsammani, JCA referred to.] P. 136, paras. B-F. See also AG, FEDERATION V. AG, ABIA STATE & ORS [2001] 11 NWLR (PT. 725) 689 AT 733. The likelihood of success of the claimants case not a relevant consideration in determining a cause of action. Considering the above and the state of the pleadings I find that the claimants having made the claim against the 2nd defendant would in law be required to prove same by evidence, at this stage of the instant case, I find that in line with the Supreme Court authority that is the prerogative of the plaintiff to determine the defendant in a suit. CHIEF EMMANUELBELLO Vs. INEC & 2ORS [2010] 2-3 SC (PT. II) 128, I resolve this issue for the claimant. The defendants also raised the issue of abuse of process and res judicata, the position of the law is as was stated in FEDERAL AIRPORTS AUTHORITY v. NWOYE (2015) 53 NLLR (PT. 180) 446 CA @ 455 “Where a party improperly uses the judicial process, intentionally in order to irritate and annoy his opponent, it can be said that such amounts to an abuse of the process of the Court”. AFRICAN REINSURANCE CORP. v. JDP CONSTRUCTION NIG. LTD. (2003) 2-3 S.C. 47; (2003) 13 NWLR (PT. 838) 609 @ 635 Also in IKEME v. VC, UNIVERSITY OF NIG. & ORS. (2014) 40 NLLR (PT. 123) 466 NIC @ 470 this court also held that the fundamental criteria for determining that a case is an abuse of process is that there must exist a multiplicity of suits and such multiplicity of suits is intended to annoy or harass the opponent by so doing or temper with the judicial process. OGOJEOFOR V. OGOJEOFOR (2006) 3 NWLR (PT. 966) 205 @ 220; KOTOYE v. SARAKI (1992) 9 NWLR (PT. 264) 156 @ 188-189 This court went on in IKEME CASE Supra to state that the defendants or any party alleging an abuse of court process must place before the court concrete evidence such as the processes of the other pending case or any such material particulars to enable the court make a finding that would enable it reach a decision on whether or not the facts and circumstances of the case indeed amount to an abuse of court process. Also a requirements for the argument of doctrine of Res Judicata, is that as the claimant stated, certain pre-conditions must exist; 1. The parties or their privies involved in both previous and present proceedings are the same; 2. That the claim or issue in dispute in both proceedings is the same; 3. That the res or that the subject matter of the litigation in the two cases is the same; 4. That the decision relied upon to support the plea is valid, subsisting and final; 5. That the court that gave the previous decision relied upon to sustain the plea is a court of competent jurisdiction. OKE V. ATOLOYE (Supra); YOYE V. OLABODE & ORS. (Supra); FADIORA V. GBADEBO (Supra). See also MALLAM YUSUF JIMOH & ORS. v. MALLAM KARIMU AKANDE & ANOR. (2009) 5 NWLR (PT. 1135) 549 @ 575, PARAS. D-F; 557, PARAS. C-D; 578, PARAS. B-D. In the instant case the 2nd defendant, alluded to a consent judgement obtained in this court but failed to furnish the court with a copy of the said judgement to enable the court determine the question of Abuse of process, or consider whether the necessary pre condition to res judicata have been established, more so as the Supreme Court has held that the mere inclusion of a new defendant does not necessarily operate as a bar to res judicata. DONBRAYE v. PREYOR (2015) ALL FWLR (PT. 774) 127 @ 168, PARAS. A-H, per Yakubu, JSC @ PARA. E. I find that the 2nd defendant has not presented this court with sufficient evidence to support these issues, hence these issues being unsubstantiated accordingly fail. As regards issue 4; Whether the Claimant is entitled to claim costs from the 2nd Defendant/objector. The question as to whether the claimant is entitled to claim or can claim cost from the 2nd defendant I find is a triable issue not one capable of determination in limine. This is a matter to be proved by trial in the circumstances of this case. Issue 5, is whether failure to affix Counsel’s NBA stamp and seal is fatal to this case. This matter has been long established that the absence of the stamp and seal is merely voidable. See the case of SUIT NO: NICN/CA/47/2015 MR JAMES AHIDO ENYIA Vs. HON. JACOB OUT ENYA delivered on 21ST APRIL 2016 Where court considered the voidability of processes filed without the proper stamp and seal in this court and stated as follows “in NICN/UY/04/2015 INCORPORATED TRUSTEES OF THE ASSOCIATION FOR THE WELFARE OF RETIRED LOCAL GOVERNMENT STAFF, AKWA IBOM STATE. Vs. HON. COMMISSIONER FOR LOCAL GOVERNMENT & 3 Ors Vs. delivered on 16th February 2016 and NICN/AK/22/2015 CHIBUZOR ONYE-NSO Vs. FIRST MAXIMUM POINT INDUSTRIES LIMITED delivered on the 9th February 2016, considered that the National Industrial Court is not a court cut out for highly technical preserves especially as the court had taken judicial notice of the fact that many legal practitioners where yet to obtain the said stamp for sealing in line with the rules. This position stems from the practice direction notification issued by the President of this Court that evidence of Nigeria Bar Associations payment should be presented in lieu of the stamp and seal, thus the court has variously held for the time being at least the absence of a stamp and seal is voidable. The court went on in INCORPORATED TRUSTEES OF THE ASSOCIATION FOR THE WELFARE OF RETIRED LOCAL GOVERNMENT STAFF, AKWA IBOM STATE. Vs. HON. COMMISSIONER FOR LOCAL GOVERNMENT & 3 Ors to hold that “the document could be saved and its signing and filing regularized by affixing the approved seal and stamp on it. That failure to affix the stamp does not render the process incompetent but irregular or voidable”. The court went on to extend time within which the party must affix the said stamp and seal accordingly. In view of the above I find that the absence of a seal is not fatal to the claimants case. All in all I find that the 2nd defendant’s preliminary objection lacks merit and is hereby struck out, This is the court’s ruling and it is hereby entered. ………….............................. Hon. Justice E. N. Agbakoba Judge. The defendants raised their preliminary objection on the grounds that RESEARCHED AUTHORITIES On Impropriety of passing on the burden of solicitor’s fees on the opponent and On Whether solicitor’s fees can be claimed as part of damages It is unethical and an affront to public policy to pass on the burden of solicitor’s fees to the other party. It is an unusual claim and it is difficult to accept in this country as things stand today for party claiming solicitor’s fees from the opponent. The issue of damages as an aspect of solicitor’s fees is not on that lends itself to support in this country. In the instant case, the claimant claimed the sum of #3, 000, and 000.00 as legal fees and also as general damages and the situation is worse because the claimant did not give any evidence on the amount that his solicitor is claiming. S.P.D.C. v. OKONEDO (2007) ALL FWLR (PT. 368) 1104 @ 1137-1138, PARAS. E-D; NWAJI v. COASTAL SERV. (NIG.) LTD (2004) 11 NWLR (PT. 885): (2004) LPELR – SC.151/1999; (2004) 18 NSCQR 895 @ P. 18, PARAS. B-E referred to.] MEGA PROGRESSIVE PEOPLE’S PARTY (MPPP) V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & 3 ORS (NO.1) (2015)18 NWLR (1491)251, where Per I.T. Muhammad held that; This issue of bar stamp raised by Dr. Ayeni is a circular which has been issued by the Hon. Chief Justice of Nigeria to all Heads of Courts for the betterment of Legal Practice in Nigeria. The circular has not metamorphosed into a practice direction. It cannot be said to be compulsory requirement for filing court processes in a court of law as of now. Section 10 of Legal Practitioners Rules of Professional Conduct (Supra) relied upon ... is directory and not mandatory in nature. Failure to affix the NBA stamp cannot in my view invalidate processes filed in a court of law....’ ALL PROGRESSIVE CONGRESS (APC) V. GENERAL BELLO SARKIN YAKI (UNREP) delivered on October 27, 2015 in Appeal No: SC/722/15 On whether the documents filed by the Defence Counsel is incompetent without a seal or stamp of the NBA. Court held that “if without complying with the mandatory provision of Rule 10(1) Rules of Professional Conduct, 2007 a lawyer acting in his capacity as a Legal Practitioner or legal adviser of any Government department or Ministry or any Corporation, signs or files a legal document without a seal or stamp of the Nigerian Bar Association, The document so signed or filed shall be deemed not to have been properly filed or served.” In the instant case, the court held that the signing and filing of the legal document by a lawyer shall be incompetent if the NBA stamp is not affixed to it. REPORTED CASES ON RES JUDICATA/ESTOPPEL ALL PROGRESSIVES CONGRESS V. PEOPLES DEMOCRATIC PARTY (2015) 15 NWLR (PT. 1481) 1-204 P.60, PARAS.F-H On application of doctrine of issue estoppel- The doctrine of issue estoppel is that where an issue has been decided by a competent court, the court will not allow it to be relitigated by different parties. The rule of estoppel is a rule of evidence and the matters which will found an issue estoppel may be of law, fact or mixed law and fact. Issue estoppel apply only to issues. In this case, the issue of the 2nd respondent’s HND Certificate was laid to rest in A.D V.FAYOSE (2005) 10 NWLR (Pt. 932) 151 in which the Court of Appeal found that the 2nd respondent’s HND certificate was genuine. The decision was final. It laid to rest for all times any further consideration of the authenticity of the HND Certificate in question. S.P.D.C.N. LTD. v. AJUWA (2015) 14 NWLR (PT. 1480) C.A. 403 @ 431 On Whether unconstitutional act can sustain defence of estoppel An unconstitutional act cannot validate the defence of estoppel. The doctrine of estoppel cannot apply to validate an act founded on unconstitutional power. A.G. BENDEL STATE v. A.G. FEDERATION (1982) 3 NCLR 1, per Eko, J.C.A. @ P. 489, PARAS. E-F. On whether legislative action can operate as res judicata A mere legislative action, which usually is neither in personam nor ad hominem, does not operate for invocation of the principles of res judicata between parties. On whether mediation or arbitration operates as estoppel per rem judicatam in land dispute A settlement of resolution of a land dispute upon mediation or arbitration of a third party mutually appointed or invited by the parties themselves and which third party or mediator shared the disputed portion of land between the disputants operates as estoppel per rem judicatam. IGBINOKPOGIE v. OGEDEGBE (2001) 18 NWLR (PT. 745) 412 referred to.] p. 489, PARAS. G-H. OLOTU v. POWER HOLDING COMPANY OF NIGERIA (2014) 42 NLLR (PT. 132) 529 @ 534 On operation of Issue Estoppel – “Generally, within one cause of action there may be several issues raised which are necessary for the determination of the whole case. Once an issue has been raised and distinctly determined between the parties, neither party can be allowed to raise that issue all over again.” On conditions for successful plea of Estoppel – “For a plea of estoppel to succeed, the following must be present, that is: The parties or their privies must be the same in both the previous and present proceedings; The res of the subject matter of the litigation in the two cases must be the same; The decision relied upon to support the plea of estoppel must be valid, subsisting and final; and The court that gave the previous decision relied upon to sustain the plea must be a court of competent jurisdiction. All the above must be fully established before the plea can be sustained. TUKUR V. UBA (2013) 4 NWLR (PT. 1343) 90, HELD: On meaning of estoppel – “Estoppel is a bar which prevents one from asserting a claim or right that contradicts what one has said or done before or what has been legally established as trite is also a bar that prevents the re-litigation of issues.” On meaning of estoppel by silence – “Estoppel by silence means estoppel that arises when a party is under a duty to speak but fails to do so.” DAUDA V. A.G. LAGOS 46 NSCQR On the Doctrine of Res Judicata Estoppel – “Where a judgment, i.e. a final judicial decision has been pronounced on the merit by a court with the requisite jurisdiction over the parties and the subject matter, any party in such suit as against any other party is estopped in a subsequent suit from disputing such decision on the merits. Once it is a final decision on the same question and between the dame parties, it is binding until upset on appeal. Res judicata gives effect to the policy of the law that parties to a judicial decision should not afterwards be allowed to re-litigate the same question even if the decision is wrong. This is premised on the fact that a court has jurisdiction to decide wrongly as well as correctly, and if it makes any mistake, its decision is binding unless corrected on appeal.” Per Bode-Rhodes-Vivour, JSC at P. 180. On what a party setting up res judicata by way of Estoppel must establish – “Where a party sets up res judicata by way of estoppel as a bar to the other party’s claim, the following must be established: There must be a judicial decision; The court that rendered the decision must have had jurisdiction over the parties and the subject matter; The decision must be final and on the merits; The decision must determine the same question as that raised in the later litigation; and The parties to that later litigation were either parties to the earlier litigation or their privies, or the earlier litigation was in rem.” Per Bode-Rhodes-Vivour, JSC at P. 180. A.G. NASARAWA V. A.G. PLATEAU 50 NSCQR On the meaning of Estoppel Per Rem Judicatem – “Otherwise known as estoppel by record arises when an issue of fact has been judicially determined in a final matter between the parties by court or a tribunal having jurisdiction, concurrent or exclusive in the matter and the same issue comes directly in question in subsequent proceedings between the parties or their privies. The parties affected are estopped from bringing a fresh action before any court on the same case and on the same issue already pronounced upon by the court in a previous action.” Per O.O. Adekeye JSC at P. 375. On what a party pleading Estoppel per rem judicatem must prove to succeed: That the parties or their privies involved in both the previous and the current proceedings in which the plea is raised are the same; That the claim or issue in dispute in both proceedings are the same; That the res or the subject matter of the litigation in the two cases is the same; That the decision relied upon to support the plea is valid, subsisting and final; That the court that gave the previous decision relied upon to sustain the plea was a court of competent jurisdiction. The burden is on the party who sets up the force of estoppel per rem judicatem to establish the above pre-conditions conclusively.” Per O.O. Adekeye JSC at P. 375. On Estoppel Per Rem Judicatem – Purport of “The plea of Res Judicata is used as a shield and not as a sword. As a successful plea constitutes a bar to any fresh action as between the parties or their privies. It is as a plea, a bar and as evidence, it is conclusive. Once a plea of Res Judicata has been established, the jurisdiction of the court would be ousted.” O.O. Adekeye JSC at P. 376. D.T.T. ENT. (NIG.) CO. LTD V. BUSARI ( 2011) 8 NWLR (PT.1249) 387 S.C. held, “The doctrine of res judicata is grounded in public policy which stipulates that there must be an end to litigation as captured in the Latin maxim “interest republicae ut sit finis litum”. N.D.I.C. V. OKEKE (2011) 6 NWLR (PT. 1244) 445 C.A. “The test whether an issue has been finally decided for the purpose of establishing a valid plea of issue res judicata does not necessarily always need to be tied to the question whether or not there has been adjudication on the substantive suit on the merits. Since the question whether or not a court can reopen in a later case, or even at a later stage in the same case, a question it has decided on a previous occasion, arises in a variety of circumstance. The test most adequate for all occasions, is whether the court which gave the decision, can vary, reopen or set aside the decision. If it cannot, the decision is final.” Onyebuchi V. I.N.E.C. (2002) 8 NWLR (Pt. 769) 417 referred to.] (P. 457, paras. A-D) C.P.C. V. NYAKO (2011) 17 NWLR (PT. 1277) 451 S.C. “When it is said that res judicata applies in law, it should be borne in mind that a party is estopped from re-litigating the matter in hand by the fact that the same matter had already been the subject of a final judicial pronouncement between the two parties.” MAKUN V. F.U.T., MINNA (2011) 18 NWLR (PT. 1278) 190 S.C. A summary judgment of court wherein the court declined jurisdiction and which is not appealed against is a final judgment for the purpose of the plea of res judicata. There are 2 categories of estoppel per rem judicatam: Cause of Action Estoppel – this precludes a party to an action from asserting or denying, as against the other party, 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 same parties. This is because it is against the rule of public policy for anyone to be vexed twice on the same ground and for one and the same cause of action and on the same issues. It is also an application of the rule of public policy that there should be an end to litigation. In appropriate cases, the parties affected are estopped from bringing a fresh action before any court on the same cause or on the same issues already decided or pronounce upon by a court of competent jurisdiction in a previous action.” Issue Estoppel – The rule here 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 nor his agent or privy is allowed to re-litigate that or those decided issues all over again in another action between the same parties or their privies on the same issues.” ADONE V. IKEBUDU (2001) 14 NWLR (PT. 733) 385 referred to.] (P. 221, paras. A-G) ILUPEJU v. PZ CUSSONS NIGERIA (2014) 47 (PT. 152) 266 NIC @ 274 On Whether the award of cost is mandatory – Cost is discretionary and follows the event. MOBIL PROD. UNLTD. V. MONOKPO (NO. 2) (2001) FWLR (PT. 78) 1210; WORNO v. UAC LTD. (1956) 1 FSC 33 @ 34.