Effect of Court’s Reliance on Authorities Not Cited by Parties

Facts
The Appellant had earlier instituted Suit No. HOY/7/97 against the Respondents, in respect of a land known as Igbo Ede Iyin in Afijo Local Government Area of Oyo State. However, the said suit was dismissed by the trial court on the ground that the Statement of Claim failed to disclose any reasonable cause of action. Thereafter, by a Writ of Summons filed on March 17, 1998, the Appellant instituted Suit No. HOY/6/98 against the Respondents, in respect of the same land. Subsequently, the Respondents filed an application seeking to strike out the suit, on the ground that the said suit constituted an abuse of the process of court. In its ruling, the trial court dismissed the application on the basis that the previous suit had only been dismissed in limine, and as such, could not form the basis of res judicata to bar the subsequent filing of the present suit. The court held further that, the present suit did not constitute an abuse of court process.

Dissatisfied with the said ruling, the Respondents appealed to the Court of Appeal, which court upturned the decision of the trial court. In considering the appeal, lower court, suo motu, raised the applicability of Sections 270 and 287 of the Constitution of the Federal Republic of Nigeria, 1999, without calling on parties to address it on the point.
The Appellant, who was unhappy with the decision of the appellate court, appealed to the Supreme Court. It was the Appellant’s grouse that the lower court did not also consider the effect of a dismissal not on the merit which was the issue in the appeal, and failed to take cognisance of the Supreme Court decision in (KOSSEN (NIG.) LIMITED & ANOR v SAVANNAH BANK OF NIGERIA LTD (1995) NWLR (Pt. 420) 439), which held that a dismissal not on the merit, has the effect of a mere striking out.

Issues for Determination
In its resolution of the appeal, the Supreme Court considered the following issues:

1. Whether the Court of Appeal was right when it suo motu raised and decided the issue of Sections 270 and 287 of the 1999 Constitution, without giving the parties the opportunity to address it on the point.
2. Whether the Court of Appeal properly identified the main issue before it.
3. Whether the Court of Appeal was right in holding that the dismissal of Suit No. HOY/7/97 in limine constituted a bar to a subsequent action, that is,. HOY/6/98.

Arguments
On the first issue, counsel for the Appellant argued that the main contention before the lower court, was whether the dismissal of a suit at the very start could form the basis of res judicata which had the effect of preventing the filing of a subsequent action. In resolving this issue, the Court of Appeal suo motu raised and determined the applicability or otherwise of the provisions of Sections 270 and 287 of the 1999 Constitution, without allowing parties address it on the said point, and that such failure occasioned a miscarriage of justice. He relied on the decision of OSHODIN v EYIFUNMI (2000) NWLR (Pt. 360) 1273 at 1305, in support of his assertion. Reacting to the submission, counsel for the 1st Respondent argued that reference to the provisions of Sections 270 and 287 of the 1999 Constitution did not have the effect of a ratio decidendi, as the reference was made in the course of an obiter dictum. He contended further that a court of law as a master of its court is not confined to only the legal authorities cited by counsel, and is not obligated to give counsel notice of the legal authorities it intends to rely on. He relied on MADAM HELEN OBULOR & ORS v LINUS WESOBORO (2001) FWLR (Pt. 47) 1004 at 1007.

On the second and third issues, counsel argued on behalf of the Appellant that the Court of Appeal did not properly identify the main issue before it (i.e. whether the Suit No. HOY/7/97 was dismissed in limine or on the merits and the effect of such dismissal on filing a new suit), but rather erroneously, on its own tangent, raised the issue of the applicability or otherwise of Sections 270 and 287 of the 1999 Constitution, in holding that a judgment is valid and binding until set aside, and that the judgment had the effect of a dismissal. He relied on EBBA v OGODO (1984) 1 SCNLR 372. He contended that the dismissal in Suit No. HOY/7/97 was in limine, which only had the effect of a mere striking out and could not act as a subsequent bar to the filing of Suit No. HOY/6/98 – KOSSEN v SAVANNAH BANK (1995) 25 SCNJ 29 at 40. Arguing on the contrary, counsel for the 1st Respondent contended that the dismissal of Suit No. HOY/7/97 had not only put an end to the Appellant’s claim, but had also created a subsequent bar to claims, even though oral evidence had not been led in support of the Appellant’s pleadings in the said suit. He relied on OGBECHIE & ORS v ONOCHE & ORS (1988) 1 NWLR (Pt. 70) 370 at 395 in support of his position. He submitted that the commencement of Suit No. HOY/6/98 by the Appellant after the earlier dismissal of HOY/7/97, constitutes an abuse of court process.

Court’s Judgement and Rationale
Regarding the first issue, the Supreme Court held that the Court of Appeal rightly found that the appeal before it bordered on the import of Sections 270 and 287 of the 1999 Constitution, which position does not require calling of parties to address it, even though the court raised the issue suo motu. A court of law is entitled to take judicial notice of all laws and enactments and any subsidiary legislation made thereunder, having the force of law in any part of Nigeria – Section 74(1) of the Evidence Act; T.M. ORUGBO & ANOR v BULANA UNA & ORS (2000) 9 SCNJ 12 at 32-33.

The Court also held that a court of law has no legal duty to confine itself only to authorities cited by the parties. It can, in an effort to improve its judgment, rely on authorities not cited by the parties, and this is not per se breach of fair hearing, not even in the twin rules of natural justice. The court held further that it is not every error of law that justifies the reversal of a judgement, as the error must have occasioned the miscarriage of justice for such reversal to take place – CHIEF JOHNSON IMAH & ANOR v CHIEF AJOWELE OKOGBE & ORS (1993) 12 SCNJ 57 at 77. Applying the principle above, Their Lordships held that no miscarriage of justice had occurred, as the main issue in contention before the court was whether the judgment in the previous suit could prevent the filing of the subsequent action, and not on the applicability or otherwise of Sections 270 and 287 of the 1999 Constitution as to whether the judgment was binding and valid until set aside. As such, parties need not address the court on that point. It is not in all instances of failure of the court to give opportunity to parties to address it, that automatically occasions a miscarriage of justice as each case depends on the merits. Reference to Sections 270 and 287 of the 1999 Constitution while arriving at their decision and judgement, did not amount to raising a fresh issue which necessitated a further address of counsel.

Deciding the second and third issues, the court held that multiplicity of actions with the same parties, even where there is a right to bring the actions is an abuse of court process, and the abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right per se. Abuse of the process of court will arise where multiple actions are instituted on the same subject-matter against the same opponent, on the same issues – SARAKI v KOTOYE (1992) 9 NWLR (Pt. 264) 156 at 188. Applying the principle above, the Supreme Court held that the dismissal of Suit No. HOY/7/97 had put an end to the Appellant’s claim, and had also created a bar to subsequent claims on the same issue. The court reasoned further that though oral evidence was not led in support of the previous suit, that does not justify the assumption that the suit was dismissed in limine and not on merit, as “hearing” a case is not only by oral evidence. The court cited TOMTEC NIGERIA LIMITED v FEDERAL HOUSING AUTHORITY (2009) 12 SCNJ 190 at 201-202.

Regarding the applicability of the decision of KOSSEN (NIG.) LIMITED & ANOR v SAVANNAH BANK OF NIGERIA LTD (1995) NWLR (Pt. 420) 439, the Supreme Court held that the case can be distinguished from the present appeal. Their Lordships stated that a court, after the dismissal of a suit, lacks the competence to delve into the matter inasmuch as the court is being presided by another Judge, and that the court lacks the jurisdiction to re-phrase the judgement of a court of co-ordinate jurisdiction – NGWO v MONYE (1970) 1 All NLR 91.

Appeal Dismissed.

Representation
Oladipo Olasope, SAN with I.B. Ebhodage, Esq. and Emmanuel Idahosa, Esq. for the Appellant.

L.A. Folorunsho, Esq. for the 1st Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)