ADEBANJO OLAYINKA v. ADEBOLA ADEPARUSI & ANOR

(2011) LPELR-8691(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 13th day of December, 2011

CA/EK/6/2011

Before Their Lordships

SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

Between

ADEBANJO OLAYINKA Appellant(s)

AND

1. ADEBOLA ADEPARUSI

2. OLUBUNMI BABATUNDE Respondent(s)

RATIO DECIDENDI

1. WORDS AND PHRASES - "ABUSE OF COURT PROCESS": Definition of "Abuse of court process"

"Abuse or gross abuse of court process does not have a definitive interpretation, but it can be defined as

an improper use of Judicial process see ABUBAKAR v. BEBEJI OIL AND ALLIED PRODUCTS LTD & 2 ORS

(2007) 18 NWLR (pt. 1066) SARAKI V KOTOYE (1992) 9 NWLR (Pt.264) 156 and OGUEIOFO v. OGUEJOFO

(2002) 12 NWLR (Pt.780) 171 of 185. Mohammed JSC in Chief Victor UMEH & ORS v. PROFESSOR

MAURICE IWU & ORS (2008) 8 NWLR (Pt 1089) 225 at 260 - 261 held thus:- "The terms 'abuse of court

process' and 'abuse of Judicial process' are one and the same thing. Abuse of court process simply

means that the process of the court has not been used bonafide and properly. It also connotes the

employment of judicial process by a part in on improper use to the irritation and annoyance of his

opponent and efficient and effective administration of justice" Per DENTON-WEST, J.C.A. (Pp. 40-41,

paras. F-C) (...read in context)

2. WORDS AND PHRASES - "ESTOPPEL": Definition of the word "Estoppel"

"The Black's Law dictionary 7th edition defines estoppels thus: "Affirmative defence barring a party from

relitigating an issue determined against that party in an earlier action, even if the second action defers

significantly from the first one. Also tend issue preclusion; issue estoppel; direct estoppel; estoppel by

judgment; estoppel by record; estoppel by verdict; cause of action estoppel; estoppel per rem

judicatam". Once a decision is pronounced between parties by a court of competent jurisdiction, the

parties cannot be contradicted by any of such parties in any subsequent litigation between them in

respect of the same subject matter. See AGBOGUNLERI v. DEPO & 3ORS (2008) 1 SC 158 at 171 and

CARDOSO V DANIEL (1986) 3 NWLR (Pt. 20)" Per DENTON-WEST, J.C.A. (P. 30, paras. C-E) (...read in

context)

3. WORDS AND PHRASES - "PRIVY": Definition of a "Privy"

"The first thing that comes to my mind is whether the appellant in this case was a party or privy to the

1st case and this brings us to the issue of who is a privy. A privy was defined as that person whose title is

derived from and who claims through a party. See ARABIO v. KANGA (1932) 1 WACA 253 at 254. Thus,

the appellant cannot be a privy to the previous suit and it cannot be binding on him." Per DENTON-

WEST, J.C.A. (Pp. 31-32, paras. G-A) (...read in context)

4. EVIDENCE - ESTOPPEL: Scope and operation of estoppel per res judicata

"The other salient point is that, the issue in suit HCR/ID/2007 is Dissolution of ' Marriage while that of

HAD/139/2009 is Paternity. Dissolution of marriage and paternity can never be the same thing and so it

is pertinent to make clear what estoppel per rem judicatam is and how it operates. The case of Oshodi

Vs. Eyifunmi (2009) 13 W.R.N. 36; (2000) 13 N.W.L.R. (Pt.684) at 298 is succinct on the issue of estoppel.

The Supreme Court held in that case; On scope of operation of res judicata; "the plea of res judicata

operates not only against the parties but against the jurisdiction of the court itself and robs the court of

its jurisdiction to entertain the same cause of action on the same issues previously determined by a

court of competent jurisdiction, previously determined between the parties. The parties affected are

estoppel per rem judicata from bringing a fresh action before any court on the same cause of action and

on the same issues already pronounced upon by the court in a previous action." Per DENTON-WEST,

J.C.A. (P. 32, paras. A-F) (...read in context)

5. EVIDENCE - ESTOPPEL PER RES JUDICATA: Conditions under which the doctrine of estoppel per res

judicata can apply

"The Doctrine of Estoppel per Res Judicata can apply when a decision has been given in a previous suit

by a court of competent jurisdiction on an issue of fact affecting the same subject matter which is

intended to be raised again in a later action between the same parties or privies. See UDEZE V CHIDEBE

(1990) 1 NWLR (Pt.125) 111 at 155 and OKEKE V A.G. ANAMBRA STATE (1992) NWLR (Pt.215) 60 at 81."

Per DENTON-WEST, J.C.A. (P. 29, paras. A-B) (...read in context)

6. CONSTITUTIONAL LAW - FAIR HEARING: Whether fair hearing is the falcrum and standard base on

which justice stands and effect where a suit is devoid of fair hearing

"Fair hearing is the fulcrum and standard base on which justice stands, a suit or matter that is devoid of

fair hearing will collapse as it cannot stand the wave of justice. Section 36(1) of the 1999 Constitution

provides that a person shall be entitled to fair hearing within a reasonable time by a court or other

tribunal established by law and constituted in such a manner as to secure its independence and

impartiality: see WAEC V ADEYANJU (2008) 9 NWLR (Pt 1092) 270 at 304, Paragraphs D-E. It is trite that

the principle of fair hearing is fundamental to all court procedure and proceedings and like jurisdictions,

the absence of it vitiates the proceedings no matter how well conducted. See ALSTHOM V SARAKI (2005)

3 MJSC 125; SALU V. EGEIBON (1994) 6 NWLR (Pt 348) 23 and CEEKAY TRADERS V GM COMPANY LTD

(1992) 2 NWLR (Pt 222) 132." Per DENTON-WEST, J.C.A. (Pp. 36-37, paras. G-C) (...read in context)

7. CONSTITUTIONAL LAW - FAIR HEARING: Effect of a denial of fair hearing in a proceedings

"Fair hearing is not all about hearing the whole parties before it but that they should be given equal

opportunities and privileges but it is clear that the lower court failed in this angle and the ruling

dismissing the case of the appellant read on that date being a premeditated act is unjust. MUSDAPHER

JSC in TSOKWA MOTORS (NIG) LTD v. UNITED BANK FOR AFRICA PLC (2008) All FWLR (pt.403) 1255 Para

A-B held thus; "A denial of fair hearing is a fundamental issue and when such a denial exists, the entire

proceedings will be rendered a nullity." Per DENTON-WEST, J.C.A. (P. 38, paras. C-F) (...read in context)

8. COURT - GRANT OF AN ADJOURNMENT: Whether a court must balance its discretion in granting or

refusing to grant an adjournment and by endeavoring to give an appellant an opportunity of obtaining

substantial justice

"It must be noted that the Court must balance its discretion to grant or refuse an adjournment with its

duty to endeavor to give an appellant the opportunity of obtaining substantial justice in the sense of its

appeal being granted a fair hearing or even in the Court above. This is because of the need that in

granting hearing on the merits no injustice is done to the other party where that opportunity or fair

hearing existed in the Court below, the appellate Court has no business interfering. See PAM v.

MOHAMMED (2008) 16 NWLR (PT.1112)." Per DENTON-WEST, J.C.A. (Pp. 37-38, paras. G-B) (...read in

context)

9. JURISDICTION - ISSUE OF JURISDICTION: Effect of a court taking upon itself to exercise power under

jurisdiction which it does not possess

"The issue of jurisdiction is sacrosanct and germane to any case, where a Court takes upon itself to

exercise power under jurisdiction which it does not possess, its decision is tantamount to nothing see

OBI V INEC (2007) 7SC 168. " Per DENTON-WEST, J.C.A. (P. 21, paras. B-F) (...read in context)

10. JURISDICTION - ISSUE OF JURISDICTION: Whether the issue of jurisdiction can be raised at any stage

of the proceedings

"The issue of jurisdiction can be raised at any stage of the proceedings in the High Court, Court of Appeal

or in the Supreme Court. Whenever this is raised, it must be considered first as it is the fulcrum upon

which a case is determined. See OLORIODE v. OYEBI (1984) 1 SCNCR 390, OLOBA V AKEREJA (1938)

3NWLR (PT84) 508, ENECHUKWU Vs NNAMANI (2009) 5 EPR 638, NNAJI Vs N.F.A (2010) 11

N.W.L.R.PART 1206 PAGE 438." Per DENTON-WEST, J.C.A. (P. 21, paras. C-F) (...read in context)

11. COURT - JURISDICTION: Whether it is the claim or petition that determine the competence of a court

to entertain a matter

"Recently the apex court in Malam Abubakar & 2 ors Vs Saidu Usman Nasamu & 5 ors (2011) L.P.E.L.R.-

SC. 350/2011, HCD PER Tabai, JSC said thus "Jurisdiction is a creation of the constitution and statute and

the settled principle of law is that it is the claim or petition that determine its competence. The claim or

petition must come within the ambit of the law that has conferred the jurisdiction. In this case there is

no challenge of the competence of the petition to entertain the petition." Per DENTON-WEST, J.C.A. (P.

22, paras. C-F) (...read in context)

12. COURT - JURISDICTION: Factors to be considered by the court in determing whether it has

jurisdiction to entertain a matter

"Thus in NNAJI Vs N.F.A. (supra), Aboki JCA observed thus" It is a fundamental principle of law that in

considering whether a court has jurisdiction to entertain a matter, the court is guided by the claim

before it by critically looking at the writ of summons and the statement of claim. See AMAECHI Vs.

I.N.E.C.(No.1) (2007) 18 N.W.L.R (Pt.1065) page 42; GAFAR Vs. GOVERNMENT of Kwara State (2007) 4

N.W.L.R (Pt.978) page 375; Lufthansa Airlines Vs. Odiese (2006) 7 N.W.L.R. (Pt. 978) page 34; Nkuma Vs.

Odili (2006) 6 N.W.L.R. (Pt.977) page 587; Onuorah Vs. K.R.P.C Ltd. (2005) 6 N.W.L.R. (Pt.921) page 393;

Onyenucheya Vs. Mil. Administrator, Imo State (1997) 1 N.W.L.R. (Pt.482) page 429." Per DENTON-

WEST, J.C.A. (Pp. 21-22, paras. G-C) (...read in context)

13. FAMILY LAW - PATERNITY OF A CHILD: Whether where a party is claiming paternity a court of Law

should be allowed to determine same on proof of evidence relating to paternity

"To my mind the paternity of the disputed res has not been determined, anybody can be awarded

custody of a child but the most important thing is that if a party is claiming paternity it is trite that a

court of Law should be allowed to determine same on proof of evidence relating to paternity, which

could only be done by referral for a DNA test of the parties involved. After such test the court has a duty

to declare the actual father of the child in dispute, in consonance with the evidence at its disposal." Per

DENTON-WEST, J.C.A. (Pp. 42-43, paras. F-A) (...read in context)

14. EVIDENCE - PLEA OF ESTOPPEL: What must be proved by the 1st respondent to succeed on the plea

of estoppel by judgment

"Once a decision is pronounced between parties by a court of competent jurisdiction, the parties cannot

be contradicted by any of such parties in any subsequent litigation between them in respect of the same

subject matter. See AGBOGUNLERI v. DEPO & 3ORS (2008) 1 SC 158 at 171 and CARDOSO V DANIEL

(1986) 3 NWLR (Pt. 20) In order for the 1st respondent to succeed on the plea of estoppel by judgment,

it is necessary for the 1st respondent to show:- 1. The subject matter in dispute is the same namely that

everything that is in controversy in the second suit as the foundation of the claim for relief was also in

controversy or points to controversy in the 1st suit. 2. It came in question before a court of competent

jurisdiction. 3. The result was conclusive so as to bind every other court." Per DENTON-WEST, J.C.A. (Pp.

30-31, paras. E-B) (...read in context)

15. EVIDENCE - PLEA OF ESTOPPEL PER REM JUDICATA: What must a person relying on the plea of

estoppel per rem judicata plead inorder to succeed

"In NATIONAL INSURANCE COMMISSION & ANOR vs. FIRST CONTINENTAL INS. CO. LTD (2006) Vol. 51

W.R.N. Page 85 at Page 101, I held inter-alia that for a plea of estoppel per rem judicata to succeed, the

party relying on it must establish that; A) The parties or their privies are the same, that is to say, the

parties involved in both the previous and the present proceedings are the same, B) The claim or the

dispute in both the previous and the present action are the same; C) The res that is to say the subject

matter of the litigation in the two cases is the same; D) The decision relied upon to support the plea

must be valid, subsisting and final; and E) The court that gave the previous decision relied upon to

sustain the plea must be a court of competent jurisdiction I further held in the same case that unless the

above conditions are met, the plea of estoppel per rem judicatam cannot be established. It therefore

follows that unless the appellant can prove that the case of the respondent satisfies the five conditions

listed above, its plea of estoppel per rem judicatam must fail, since it is the position of the law that the

party who raises the plea caries the burden of proof. The conditionalities listed above were reiterated in

the case of Afolabi Vs. Gov. of Oyo State (1985) 2 N.W.L.R (Pt.9) 734 (1985) 9 S.C 117 at 119 where it

was held per Kutigi JSC that unless all of the above conditionalities were all met, the defence of estoppel

per rem judicatam must fail." Per DENTON-WEST, J.C.A. (Pp. 33-34, paras. A-A) (...read in context)

16. ACTION - PLEADINGS: Whether it is the plaintiff claims in the writ that determines whether or not a

particular case comes within the jurisdiction of a Court

"It is trite that it is the plaintiffs claims in the writ that determines whether or not a particular case

comes within the jurisdiction of a Court see OHMB V GARBA (2002) 14 NWLR (PT.788) 538, TRADE BANK

PLC V BENILORE (NIG.) LTD (2003) NWLR (PT.825) 416, BABALE V ABDULIADIR (1993) 3 (PT.281) 253,

ATTORNEY GENERAL OYO STATE V NCC (2003) 8 NWLR (PT.821) 1, WESTERN STEEL WAORKS LTD V.

IRON AND STEEL WORKERS UNION OF NIGERIA (1957) 1 NWLR (PT.49) 284, FASHOGBON V ADEOGUN

(2001) ALL FWLR (PT.396) 661 AT 678 - 679 AND ADEYEMI V OPEYORI (1978) 9-10 SC 31." Per DENTON-

WEST, J.C.A. (P. 23, paras. C-E) (...read in context)

17. EVIDENCE - TYPES OF ESTOPPEL: Ways in which estoppel can be created

"it is trite that a party is not allowed to say that a certain statement of fact is not true, in whatever way.

Estoppel can be created in several ways. The common law recognizes three types which are; i. Estoppel

by record or quasi record. ii. Estoppel by deed and, iii. Estoppel in pais." Per DENTON-WEST, J.C.A. (P. 30,

paras. A-B) (...read in context)

SOTONYE DENTON-WEST, J.C.A. (Delivering the Leading Judgment): It is an unusual matter in which the

issue of Res Judicata was strongly focused upon and so in this appeal against the ruling of Honourable

Justice A. K Fowe of the Ekiti State High Court of Justice, Ado-Ekiti Division, Ekiti State delivered on the

27th day of January, 2011, in which the learned trial judge inter-alia held thus:

"Now the claim of the plaintiff in this suit as set out earlier seeks to relitigate the same issue which has

been earlier on decided. The parties are the same except in this case the plaintiff who is now suing the

two defendants claiming paternity of a son whose paternity and custody has been decided in the

previous suit. The subject matter is the same in the sense that there is nothing more which this latter

case can decide upon which has not been decided by judgment of Hon. Justice D. O. Jegede. Public

policy demands that there should be an end to litigation once a court of competent jurisdiction has

settle, by a final decision, the matters in contention between the parties. Not only must the court not

encourage prolongation of a dispute, it must discourage proliferation of litigation. Also well established

in our law...that no one ought to be twice vexed, it if is proved to the court that it is for one and the

same cause. See: Fadiora vs. Gbadebo (1978) 3 SC. 219 at 228. I have now come to the conclusion that

the plea of res jud icata raised by the 1st defendant's learned counsel, Dapo Agbede is well raised and

upheld. This suit i.e. HAD/139/2009 Debayo Olayinka Vs. Adebola Adeparusi & 1 or is a gross abuse of

the process of the court and it is hereby dismissed with the cost of N10,000.00 awarded in favour of the

1st defendant and against plaintiff."

The appellant by his writ of summons claimed against the respondent as follows;

a. Declaration that the plaintiff is a bonafide and biological father of cosmos Gregory Adegbenro.

b. Declaration that the plaintiff is entitled to the custody of his biological son Cosmos Gregory

Adegbenro.

c. Declaration that the action of the first defendant taking custody of cosmos Gregory Adegbenro at the

expense of his biological father is improper, fraudulent, strange, gold-digging, illegal, unlawful,

unconstitutional, irregular, invalid, null and void.

d. An order of court mandating 1st and 2nd defendant to release the boy in issue cosmos Gregory

Adegbenro to the custody of the plaintiff being real biological father.

e. A perpetual injunction restraining 1st and 2nd defendants, their agents and servants from doing

anything derogatory or harmful to the welfare, health, well-being of the child in issue - Cosmos.

The appellant filed his Notice of Appeal against the judgment of the Lower Court. The Notice of appeal

contained five grounds of appeal On the 25th day of October 2011, the parties adopted their briefs of

argument. The appellant's counsel was absent but the Appellant's Brief dated the 14th day of April, 2011

and Appellant's Reply Brief to the 1st Respondent's Brief dated the 14th day of June 2011 and filed same

date were deemed adopted.

The 1st Respondent was represented by Chief Dapo Agbede and Bamidele Adodo. Chief Agbede

adopted the 1st Respondent's Brief dated 6th of June 2011 and filed same date he accordingly prayed

the Court to dismiss the appeal. The 2nd Respondent was absent and not represented, her Respondent

Brief dated the 14th day of June 2011 and filed same date was also deemed adopted, in accordance with

the Court of Appeal Rules 2011.

The appellant was the plaintiff at the Lower Court while the two Respondents were the defendants.

The matter before the lower Court was dismissed by the trial judge when the 1st Respondent raised the

issue of Res Judicata. In the appellant's brief of argument earlier adopted by this Court, five issues were

highlighted for determination. The issues are:-

1. Whether or not the learned trial judge was right to have entertained the preliminary objection of the

1st Respondent's instead of taking evidence on merit.

2. Whether or not the learned trial judge was right to have upheld the plea of Res Judicata raised by the

1st Respondent.

3. Whether or not the learned trial judge was right in refusing to give the appellant therein fair hearing.

4. Whether or not learned trial judge was right in holding that the appellant's suit constitutes a gross

abuse of court process (sic).

5. Whether or not the learned trial judge was right in dismissing the appellant's suit as he did.

The 1st Respondent deduced three issues for determination thus:-

1. Whether a trial court should first consider/ determine the issue of its jurisdiction in a matter when

raised by the 1st Respondent/Defendant.

2. Whether the suit is ensnared by the Doctrine of Estoppel per Res Judicata

3. Whether the trial court has violated the principle of fair hearing in conducting this matter.

The 2nd Respondent adopted and aligned herself with the introduction, agreement and submissions of

the appellant. She argued only one issue to wit:

Whether or not the learned trial judge was right to have upheld the plea of Res Judicata raised by the

1st Respondent. The issues raised by the Appellant in this appeal is all embracive thus the appeal will be

determined vide the issue as raised by the appellant.

Issue One for Determination

Whether or not the learned trial judge was right to have entertained the preliminary objection of the 1st

Respondent instead of taking further evidence.

I can observe that this issue one of the appellant has the same resemblance with to Respondent's issue

one.

The appellant argued that the lower court should not have entertained the preliminary objection as filed

by the 1st Respondent but that further evidence should have been taken on merit. He referred this

court to the case of FAYEMI v. ONI (2010) 48 WRN 30 at 55-56 to support his position.

He argued that the respondent was deemed to have waived his right because the respondent have

taken further steps after becoming aware of his right to take further steps in the proceeding. He

referred to the case of ONWARD ENT. LTD V MATRIC (2009) 4 WRN 103 at 103-109 to buttress his

argument, he further contended that taking steps or further steps constitute waiver. He further defined

"waiver" and referred to the Black's Law Diction, 8th edition pg.1611.

Appellant further stated that the Lower Court ought to have taken evidence and heard the matter on

the merit. He thereafter argued that the learned trial judge misconceived the nature of the preliminary

objection and consequently came to a wrong conclusion which occasioned a miscarriage of justice. He

quoted the Supreme Court in LADEJOBI v. OGUNTAYO (2005) WRN that:

"It is an established principle of law arising from the logic of reasoning, that when a court misconceives

the nature of what it is called upon to decide, it will in all probability arrive at a wrong conclusion".

The 1st Respondent argued that he filed a Statement of Defence and that he specifically pleaded the

issue of Estoppel per Rem Judicata and that he thereafter challenged the jurisdiction of the court in a

Motion on Notice. That he raised the issue of Estoppel per Rem Judicata because the status of the

subject matter had been adjudicated upon by a competent court of record that sat thereon and was

presided over by Hon. Justice D.O. Jegede.

The 1st Respondent Counsel contended that issue of jurisdiction can be raised at any stage of the

proceedings and the court must determine the issue of jurisdiction first before embarking on any trial,

he referred this court to the case of NADABA NIG LTD v. UBN PLC (2009) 13 NWLR (Pt 1158) 256 at 299

and ODEH v. AMEH (2004) 4 NWLR (Pt 863) pg. 309 at 321 to buttress his  argument.

The 1st Respondent reiterated that to avoid taking the appellant by surprise he ensured that the issue of

Estoppel per Rem Judicata was raised in the Statement of Defence. He further argued that in

consonance with Order 24 Rules 2 and 3 of the Ondo State Rules of the High Court as applicable in Ekiti

State, he has the right to raise by his pleading any point of law and same shall be disposed off by the

Judge whenever it suits the court. He further referred this court to Order 25 Rule 6(1) of the Ondo State

Rules of the High Court as applicable in Ekiti State which provides that the opposite side should not be

taken by surprise by the action of the other part and that he complied with the rules of court. He

referred this court to the case of ESSA v. OGODO (2000) 10 NWLR (Pt 675) 381; UKAEGBU v. OGOJI

(1991) 6 NWLR (Pt 196) 127, CHUWENDU V MBAMAL 1980 3 SC 21; IKOTUN V. OYEKANMI (2005) 10

NWLR (Pt 1094) 100 at 111 and OGBEDE v. OSIFO (2007) 3 NWLR (Pt 1022) 423 at 447 to buttress his

position.

1st respondent further argued that jurisdiction is divided into two namely, procedural jurisdiction and

substantive jurisdiction and referred this court to the case of NDAYAKO V DANTORO (2004) 13 NWLR (Pt

889) 187 at 219. He surmised that procedural jurisdiction of the Court is a mere irregularity and

technicalities which can be cured or waived but issues which touches on substantive jurisdiction of the

court can neither be waived nor cured and it goes to the root of the matter, he referred to the case of

NDAYAKO V DANTORO (supra) to support his position.

Still on jurisdiction, 1st Respondent contended that consent of parties cannot confer jurisdiction where

it affects the substantive jurisdiction of court, he referred this court to the cases OKOLO Vs. UBN LTD

(2004) 3 NWLR (Pt 859), 108-110 and UGWUANYI Vs. NICON INSURANCE PLC 15 NWLR (2004) (Pt 397)

612 at 618 and 619 to support his position. He thereafter contended that the issue of Estoppel per Rem

Judicata touches on issue of substantive law and the 1st Respondent submitted that the issue of

Estoppel per Rem Judicata cannot be waived since it touches on the substantive law and that it must

first be determined since the issue as formulated by the appellant is a gross misconception of the law

when he argued that the 1st Respondent had waived his right by filing Statement of Defence and

Counter-Affidavit, he said it goes to the root of the matter, it cannot be waived and he referred this

court to case of NDAYAKO V DANTORO (supra) OKOLO v. UBN LTD (supra). The 1st Respondent further

submitted that the issue of jurisdiction can be raised at any stage of the proceedings and that it must

first be determined without taking any further evidence. He referred this court to the case of CHIEF

ADAODEH Vs. JOHN ENYIME AMEH (supra) and JANG Vs INEC 12 NWLR (pt 886) Pg 46 at 84-87. The 1st

Respondent therefore urged this Court to hold that the Lower Court did the right thing by deciding on

whether it has jurisdiction or not. He thereafter submitted that the Lower Court did the right thing by

first determining the issue of jurisdiction rather than the matter on the merit. The 1st Respondent urged

this court to dismiss the appeal.

DETERMINATION OF ISSUE ONE

The issue of jurisdiction is sacrosanct and germane to any case, where a Court takes upon itself to

exercise power under jurisdiction which it does not possess, its decision is tantamount to nothing see

OBI V INEC (2007) 7SC 168.

The issue of jurisdiction can be raised at any stage of the proceedings in the High Court, Court of Appeal

or in the Supreme Court. Whenever this is raised, it must be considered first as it is the fulcrum upon

which a case is determined. See OLORIODE v. OYEBI (1984) 1 SCNCR 390, OLOBA V AKEREJA (1938)

3NWLR (PT84) 508, ENECHUKWU Vs NNAMANI (2009) 5 EPR 638, NNAJI Vs N.F.A (2010) 11

N.W.L.R.PART 1206 PAGE 438.

In this appeal, the trial Judge in considering whether it has jurisdiction proceeded to consider the

defendants/Respondent defence in the Court below instead of being guided by the claim before it. Thus

in NNAJI Vs N.F.A. (supra), Aboki JCA observed thus" It is a fundamental principle of law that in

considering whether a court has jurisdiction to entertain a matter, the court is guided by the claim

before it by critically looking at the writ of summons and the statement of claim. See AMAECHI Vs.

I.N.E.C.(No.1) (2007) 18 N.W.L.R (Pt.1065) page 42; GAFAR Vs. GOVERNMENT of Kwara State (2007) 4

N.W.L.R (Pt.978) page 375; Lufthansa Airlines Vs. Odiese (2006) 7 N.W.L.R. (Pt. 978) page 34; Nkuma Vs.

Odili (2006) 6 N.W.L.R. (Pt.977) page 587; Onuorah Vs. K.R.P.C Ltd. (2005) 6 N.W.L.R. (Pt.921) page 393;

Onyenucheya Vs. Mil. Administrator, Imo State (1997) 1 N.W.L.R. (Pt. 482) page 429.

Recently the apex court in Malam Abubakar & 2 ors Vs Saidu Usman Nasamu & 5 ors (2011) L.P.E.L.R.-

SC. 350/2011, HCD PER Tabai, JSC said thus "Jurisdiction is a creation of the constitution and statute and

the settled principle of law is that it is the claim or petition that determine its competence. The claim or

petition must come within the ambit of the law that has conferred the jurisdiction. In this case there is

no challenge of the competence of the petition to entertain the petition." The challenge here is non-

compliance with paragraph 18(1) of the first schedule to the Electoral Act."

Even though I am in tandem with the 1st Respondent that once the issue of jurisdiction was raised vide

the Statement of Defence and a motion to determine whether the Lower Court has jurisdiction to hear

the matter, the Lower Court still did the right thing by determining the issue of jurisdiction rather than

take further evidence.

The enabling Law vesting jurisdiction in the Court has to be examined to the light of the relief or reliefs

sought by the plaintiff. The moment the relief sought by the plaintiff comes within the jurisdiction of the

Court as disclosed by the facts and the relief sought, the Court must assume jurisdiction as it then has

competence to do so. On the other hand, the moment the relief sought does not come within

jurisdiction of the Court as disclosed by the facts, the Court must decline jurisdiction as it has no

competence to adjudicate on the matter. It is trite that it is the plaintiffs claims in the writ that

determines whether or not a particular case comes within the jurisdiction of a Court see OHMB V

GARBA (2002) 14 NWLR (pT.788) 538, TRADE BANK PLC V BENILORE (NIG.) LTD (2003) NWLR (PT.825)

416, BABALE V ABDULIADIR (1993) 3 (PT.281) 253, ATTORNEY GENERAL OYO STATE V NCC (2003) 8

NWLR (PT.821) 1, WESTERN STEEL WAORKS LTD V. IRON AND STEEL WORKERS UNION OF NIGERIA

(1957) 1 NWLR (PT.49) 284, FASHOGBON V ADEOGUN (2001) ALL FWLR (PT.396) 661 AT 678 - 679 AND

ADEYEMI V OPEYORI (1978) 9-10 SC 31.

As I earlier on held that the issue of jurisdiction can be raised anytime and when raised, it should be

determined as it is the threshold of a case. If a court lacks jurisdiction to hear any case and it goes

ahead, it is a sheer waste of time, wisdom depicts that it is determined first. See OLOTOLA V UNILORIN

(2004)18 NWLR (PT.905) 416 AND ADEKAIWE V COMPTROLLER OF PRISONS (2000) 12 NWLR (PT.682)

563.

In all, I hold that the Learned trial Judge was right to have entertained the preliminary objection of the

1st Respondent rather than take further evidence on merit. Issue one is resolved against the Appellant

and the 2nd Respondent in favour of the 1st Respondent to the extent that the Learned trial judge was

right to determine first the issue of jurisdiction as raised by the 1st Respondent.

ISSUE TWO

Whether or not the learned trial judge was right to have upheld the plea of Rem Judicata raised by the

1st Respondent.

The appellant counsel submitted that for the plea of Rem Judicata to succeed, the following conditions

must be met;

I. That the parties are the same in the present case, as in the previous case.

II. That the issue and subject matter are same in the previous suit as in the present suit.

III. That the adjudication in the previous case must have been given by a Court of competent jurisdiction

and

IV. That the previous decision must have finally decided the issues between the parties. Failure to satisfy

this condition means failure of the plea of Rem Judicata in its entirety. These conditions must all co-

exist, in effect all must conjunctively be established. He referred to the cases of AJAYI V OLOWU (2010)

51 WRN CA, 152 AT 157 AND AKOLE V ALONGE (2009) 43 WRN to buttress his position.

Appellant contended that parties in suit HAD/139/2009 are entirely different from the parties suit

HCR/4D/2007. That there are two parties in the previous suit and three in this present suit, that the

appellant herein was not a party in the previous suit and never had knowledge of the previous suit at

the material time.

That in the previous suit HCR/4D/2007, the subject matter was Dissolution of Marriage and Custody

while suit No.HAD/139/2009 deals with Paternity. He further contended that the paternity of Cosmos

Gregory Adegbenro has never been the subject matter of any previous suit, proceedings or litigation.

Appellant contended that dissolution of marriage, custody and paternity are three separate and distinct

issues or subject matter under the Law.

Appellant thereafter submitted that the ingredients for a successful plea of Rem Judicata are missing as

they do co-exist as required by the Law and that the trial Court failed to consider all this facts and this

made her to come to a wrong conclusion. He prayed that issue to be resolved in his favour.

The 1st respondent on his own, averred that upon a critical look at the judgment in suit NO.

HCR/ID/2008 between the 1st respondent and 2nd respondent delivered by Hon. Justice D.O. JEGEDE of

the Ekiti state High Court it is evident that marriage was dissolved and custody of the child was awarded

to the father.

That in the present suit, the appellant wants custody of Cosmos Adegbenro to be granted to him against

what had earlier been granted by a Court of co-ordinate jurisdiction. The 1st Respondent further argued

that the relief sought by the appellant is to circumvent the judgment of a Court of a co-ordinate

jurisdiction so that same will not be ensnared by the Doctrine of Estoppel per Rem Judicata. He referred

this Court to the case of ADEBOYE V OLOWOLAGBA (1996) 12 SCNJ 95 AT 120 to buttress his position.

The 1st Respondent contended that re-styling or re-christening a case in order to circumvent the earlier

judgments of the Court, will not be allowed and he referred this Court to the cases of BASSEY V EKANEM

(2001) 1 NWLR (Pt.694) 316 AT 373-374, FALAYE V OLAPO (1995) 2 SCNJ 195 AT 218 AND DIKE v. NZEKA

(1986) 4 NWLR (PT.144) to buttress his argument. He further contended that Judgment in Rem is binding

on the whole world and parties as well as non parties, while a Judgment in Personal on the other hand is

a judgment against a particular person.

The 1st Respondent therefore prays this court to dismiss the appeal as lacking in merit. He further

argued that no person is to be adversely affected by a judgment in an action to which he was not a

party, because of the injustice in deciding an issue against him in his absence. He cited the case of

OSUNMIDE V AJAMOGUN (1992) 6 NWLR (PT. 246) 156 AT 184 to buttress his argument but that there

are two exceptions to the principle above.

i. A person who is in privy with the parties in which case he is estopped by Rem Judicata.

ii. A person may have so acted to preclude himself from challenging the judgment in which case he is

stopped by his conduct.

He went ahead to state that to ascertain cause of action, the immediate material a court should look at

are writ of summons and the averments in the statement of claim. He referred this court to the case of

DANTATA V MOHAMMED (2000) 7 NWLR (PT.664) 179, ADIMORA V AJUFO (1955) 3 NWLR (PT. 80);

AKIBO V. ODUNTAN (2000) 13 NWLR (PT.685) 446 and ABUBAKAR V B.O. and A. P. LTD (2007) 18 NWLR

(PT.1066) 319 at 361-362 to support his position.

He further argued that the appellant was aware of the litigation for divorce and custody of the res. He

referred this court to paragraph 48 and 49 of the Appellant's Statement of Claim on pages 3-8 of the

record of proceedings. Also, that this current action is a ploy by the appellant and the 2nd respondent to

circumvent the judgment of the court. He thereafter prayed this court to dismiss this appeal.

The 2nd respondent on their own argued that Rem Judicata cannot be disposed off by affidavit evidence

and that the onus is on the party pleading Rem Judicata to plead same. He said this cannot be done via

affidavit evidence, he referred this court to the cases of ADEBO V ONISOLA (2005) 2 NWLR (PT.900) 149

and EFFION V. IRONBAR (2000) 3 NWLR (PT. 650) 545 at 555 to buttress his argument.

The 2nd Respondent further argued that the lower court misconstrued the fact that what is expected to

be raised for determination based on the preliminary objections by way of motion on notice supported

by an affidavit shows that it was purely an issue of law but looking at it critically shows that it is purely

issue of fact. He referred this court to the case of INTERNATIONAL BANK OF WEST AFRICA v. SASEGBON

(2005) 16 WRN 115 to buttress his position.

He further argued that to determine whether a court is seized with jurisdiction to entertain a particular

case, it is the claim of the plaintiff as endorsed on the writ or as in this case the affidavit in support of

the motion and the relief sought that ought to be considered, he cited the case of ACCORD PARTY V

GOVERNOR OF KWARA STATE (2010) 12 WRN 59 at 64 ratio 1 to buttress his position, she concluded

that the initial case was for divorce and the issue of custody was an ancillary and not the real subject

matter, she prayed that this appeal should succeed.

The appellant in his reply to the 1st respondent brief argued that the judgment in HCW/15/2007 as a

judgment in rem is grossly misplaced and that judgment binds only parties to it. He relied on the cases

of DANIEL V KADIR (2011) 14 WRN 163, BRIGHT MOTORS LTD v. HONDA MOTORS COMPANY LTD (2008)

12 NWLR (pt. 577) 230 AT 239, OKONKWO v. OKEKE (1996) 3 NWLR (Pt 435) 181 and OSUNRINDE v.

AJAMOGUN (1992) 6 NWLR (Pt.246) 156 to buttress his point. He prayed this court to discountenance

the argument and submission of the 1st respondent.

RESOLUTION OF ISSUE TWO

The Doctrine of Estoppel per Res Judicata can apply when a decision has been given in a previous suit by

a court of competent jurisdiction on an issue of fact affecting the same subject matter which is intended

to be raised again in a later action between the same parties or privies. See UDEZE V CHIDEBE (1990) 1

NWLR (Pt.125) 111 at 155 and OKEKE V A.G. ANAMBRA STATE (1992) NWLR (Pt.215) 60 at 81.

To determine the issue of Estoppel in this suit I will reproduce the claims of the 1st suit and that of the

2nd suit.

In this suit, the claims are as follows:-

1. Declaration that the plaintiffs the bona fide and biological father of Cosmos Gregory Adegbenro.

2. Declaration that the plaintiff is entitled to the custody of his biological son Cosmos Gregory

Adegbenro.

3. Declaration that the action of the 1st defendant taking custody of Cosmos Gregory Adegbenro at the

expense of his real biological father is improper, fraudulent, strange, gold digging, illegal, unlawful,

unconstitutional, irregular, invalid, null and void.

4. An order of court mandating 1st and 2nd defendants to release the boy in issue-Cosmos Gregory

Adegbenro to the custody of the plaintiff being the real biological father.

5. A perpetual injunction restraining 1st and 2nd defendants, their agents and servants from doing

anything derogatory or harmful to the welfare, health, well being of the child in issue- Cosmos Gregory

Adegbenro.

Now back to the issue at hand, it is trite that a party is not allowed to say that a certain statement of fact

is not true, in whatever way. Estoppel can be created in several ways. The common law recognizes three

types which are;

i. Estoppel by record or quasi record.

ii. Estoppel by deed and,

iii. Estoppel in pais.

The one that concerns us in this appeal is Estoppel by record it is known as Estoppel per Rem Judicata.

The Black's Law dictionary 7th edition defines estoppels thus:

"Affirmative defence barring a party from relitigating an issue determined against that party in an earlier

action, even if the second action defers significantly from the first one. Also tend issue preclusion; issue

estoppel; direct estoppel; estoppel by judgment; estoppel by record; estoppel by verdict; cause of action

estoppel; estoppel per rem judicatam".

Once a decision is pronounced between parties by a court of competent jurisdiction, the parties cannot

be contradicted by any of such parties in any subsequent litigation between them in respect of the same

subject matter. See AGBOGUNLERI v. DEPO & 3ORS (2008) 1 SC 158 at 171 and CARDOSO V DANIEL

(1986) 3 NWLR (Pt. 20)

In order for the 1st respondent to succeed on the plea of estoppel by judgment, it is necessary for the

1st respondent to show:-

1. The subject matter in dispute is the same namely that everything that is in controversy in the second

suit as the foundation of the claim for relief was also in controversy or points to controversy in the 1st

suit.

2. It came in question before a court of competent jurisdiction.

3. The result was conclusive so as to bind every other court.

The judgment which was pleaded by the 1st respondent as Rem Judicata against the claim of the

appellant is the judgment delivered by Hon. Jusfice D. O. Jegede. It came as a result of Suit NO

HCR/D/2007 and the parties were

CHARLES ADEBOLA AREWA ADEPARUSI......... PETITIONER

VS

MARY BUNMI ADEPARUSI....................... RESPONDENT

And in the suit giving rise to this Appeal, the parties are:-

ADEBANJO OLAYINKA...................... PLAINTIFF

V

ADEBOLA ADEPARUSI

OLUBUNMI BABATUNDE..............DEFENDANTS

In the first suit the cause of action is Divorce petition between the Petitioner and Respondent while this

current suit is for paternity.

The first thing that comes to my mind is whether the appellant in this case was a party or privy to the 1st

case and this brings us to the issue of who is a privy. A privy was defined as that person whose title is

derived from and who claims through a party. See ARABIO v. KANGA (1932) 1 WACA 253 at 254. Thus,

the appellant cannot be a privy to the previous suit and it cannot be binding on him.

The other salient point is that, the issue in suit HCR/ID/2007 is Dissolution of ' Marriage while that of

HAD/139/2009 is Paternity. Dissolution of marriage and paternity can never be the same thing and so it

is pertinent to make clear what estoppel per rem judicatam is and how it operates. The case of Oshodi

Vs. Eyifunmi (2009) 13 W.R.N. 36; (2000) 13 N.W.L.R. (Pt.684) at 298 is succinct on the issue of estoppel.

The Supreme Court held in that case;

On scope of operation of res judicata;

"the plea of res judicata operates not only against the parties but against the jurisdiction of the court

itself and robs the court of its jurisdiction to entertain the same cause of action on the same issues

previously determined by a court of competent jurisdiction, previously determined between the parties.

The parties affected are estoppel per rem judicata from bringing a fresh action before any court on the

same cause of action and on the same issues already pronounced upon by the court in a previous

action."

Shun of all embellishment the crux of this issues and other issue before me in this appeal is to determine

whether the lower court was right in holding that suit No.HCR/ID/2007 operated as estoppel against

HAD/139/2009 and consequently whether the present suit that gave rise to this appeal constitute an

abuse of court process.

In NATIONAL INSURANCE COMMISSION & ANOR vs. FIRST CONTINENTAL INS. CO. LTD (2006) Vol.51

W.R.N. Page 85 at Page 101.

I held inter-alia that for a plea of estoppel per rem judicata to succeed, the party relying on it must

establish that;

A) The parties or their privies are the same, that is to say, the parties involved in both the previous and

the present proceedings are the same.

B) The claim or the dispute in both the previous and the present action are the same;

C) The res that is to say the subject matter of the litigation in the two cases is the same;

D) The decision relied upon to support the plea must be valid, subsisting and final; and

E) The court that gave the previous decision relied upon to sustain the plea must be a court of

competent jurisdiction

I further held in the same case that unless the above conditions are met, the plea of estoppel per rem

judicatam cannot be established. It therefore follows that unless the appellant can prove that the case

of the respondent satisfies the five conditions listed above, its plea of estoppel per rem judicatam must

fail, since it is the position of the law that the party who raises the plea caries the burden of proof. The

conditionalities listed above were reiterated in the case of Afolabi Vs. Gov. of Oyo State (1985) 2

N.W.L.R (Pt.9) 734 (1985) 9 S.C 117 at 119 where it was held per Kutigi JSC that unless all of the above

conditionalities were all met, the defence of estoppel per rem judicatam must fail.

Consequently suit No. HCR/ID/2007 deals mainly with dissolution of marriage and an ancillary order of

custody of the child of the marriage whilst suit No. HAD/139/2009 is paternity involved. I therefore hold

that dissolution of marriage and paternity are not one and the same thing and I so hold.

The other issue is that the judgment must be conclusive, I hold that the judgment in Suit HCR/ID/2007

and HAD/139/2009 are not interwoven and cannot be conclusive of the other. See ODUA vs. NWEZE

(1934) 2 WACA 98; SHONEKAN V. SMITH (1964) 1 NLR 168, and MOAFE V. ESEKHOMO (1993) 8 NWLR

(Pt.309) 58.

The argument and submission of the 1st respondent does not hold water and it is off the point.

For the reasons highlighted above, I resolve issue two in favour of the appellant and 2nd respondent

against the 1st respondent as the lower court should not have upheld plea of Rem Judicata on an issue

that deals with paternity.

ISSUE THREE

Whether or not the learned trial judge was right in refusing to give the appellant herein fair-hearing.

Appellant submitted that the learned trial judge failed to give the Appellant fair hearing throughout the

proceedings, that there was nothing on the record to show that the appellant was given fair hearing.

That the motion of the 1st respondent challenging the jurisdiction of the Lower Court was served on him

in the court room, that on the date the motion is to be heard, appellant raised an issue of law viva-voce

and same was adjourned to 20/12/2010 for argument. That he was absent from the court for the very

first time and that the Lower Court allowed the Respondent to move his motion on Res Judicata. Also,

that appellant thereafter filed a motion on notice praying the court to arrest the ruling and allow the

appellant to reply on point of law and the 1st respondent filed a preliminary objection to the hearing of

the motion that the motion was struck out and the preliminary objection sustained, the Lower Court

proceeded to read our ruling that a motion on notice for arrest was earlier struck out. That there was

nothing on record to show that the appellant was heard on the fundamental and jurisdictional issue of

Rem Judicata. The appellant counsel argued that a court of law must determine all pending applications

before judgment is delivered he referred to the cases of OGBORU V IBORI (2005)13 NWLR (Pt 943) 420

and DINGYADI V. INEC (2010) 49 WRN AND SECTTON 36 (1) 1999 CONSTITUTION OF THE FRN to support

his position.

Appellant further argued that the Lower Court rushed the delivery of the judgment and even before

listening to his application on arrest of judgment he has made up his mind. He referred this court to the

case of CBN V AYODEJI (2005) 26 WRN and ALI VALBISHIR (2008) 31 WRN to buttress his position, he

further submitted that the Lower Court heard one side and did not hear the other and this led to

miscarriage of justice. He prayed this court to resolve this issue in favour of the appellant.

The 1st respondent admitted the facts as stated by the appellant but that on the date the application

was fixed for hearing the applicant deliberately refused to attend the court proceedings without excuse

and the court was right in hearing his application. That the lower court was right in overruling the

appellant's application for arrest because it was novel. He further submitted that the Lower Court acted

rightly within the ambit of the law in that a counsel cannot hold the court to ransom. The 1st

respondent further argued that adjournment is not automatic and when not granted is not a breach of

fair hearing. He referred the court to the cases of JOEL CO. LTD V SKYE BANK PLC (2009) 6 NWLR

(pt.1138) 518 at 541 & 542 and NDABA NIG LTD V. SKYE BANK PLC (2009) 13 NWLR (Pt.1158) 256 at 319

and 322 to support his argument. He finally argued that the appellant was given ample opportunity to

react to the application but he chose not to argue his motion. He thereafter prayed this court to dismiss

the appeal.

The 2nd respondent adopted the appellant's argument and submission.

RESOLUTION OF ISSUE THREE

Fair hearing is the fulcrum and standard base on which justice stands, a suit or matter that is devoid of

fair hearing will collapse as it cannot stand the wave of justice. Section 36(1) of the 1999 Constitution

provides that a person shall be entitled to fair hearing within a reasonable time by a court or other

tribunal established by law and constituted in such a manner as to secure its independence and

impartiality: see WAEC V ADEYANJU (2008) 9 NWLR (Pt 1092) 270 at 304, Paragraphs D-E.    It is

trite that the principle of fair hearing is fundamental to all court procedure and proceedings and like

jurisdictions, the absence of it vitiates the proceedings no matter how well conducted. See ALSTHOM V

SARAKI (2005) 3 MJSC 125; SALU V. EGEIBON (1994) 6 NWLR (Pt 348) 23 and CEEKAY TRADERS V GM

COMPANY LTD (1992) 2 NWLR (Pt 222) 132.

On whether or not the Lower Court was not fair, some salient points will be touched. I agree that a

litigant or party should not hold the court to ransom by his unpreparedness or indolence and

adjournment will not be granted as a matter of course. Counsel and litigants have been warned to be

serious with their cases. However from the record of proceedings that will be the very first time the

appellant's counsel will be absent in court and I think the lower court should be cautious so as not to

visit the sin of a counsel on a client though it is on record that the lower court gave the appellant right

and opportunity to make all his applications. It must be noted that the Court must balance its discretion

to grant or refuse an adjournment with its duty to endeavor to give an appellant the opportunity of

obtaining substantial justice in the sense of its appeal being granted a fair hearing or even in the Court

above. This is because of the need that in granting hearing on the merits no injustice is done to the

other party where that opportunity or fair hearing existed in the Court below, the appellate Court has

no business interfering. See PAM v. MOHAMMED (2008) 16 NWLR (PT.1112).  The attitude of the

court in striking out a motion to stop a matter and within few minutes of striking it out to give ruling on

a previous application that was argued on an earlier date shows that the court has made up its mind on

what to do and the appellant's application was not given fair hearing. Fair hearing is not all about

hearing the whole parties before it but that they should be given equal opportunities and privileges but

it is clear that the lower court failed in this angle and the ruling dismissing the case of the appellant read

on that date being a premeditated act is unjust. MUSDAPHER JSC in TSOKWA MOTORS (NIG) LTD v.

UNITED BANK FOR AFRICA PLC (2008) All FWLR (pt.403) 1255 Para A-B held thus;

"A denial of fair hearing is a fundamental issue and when such a denial exists, the entire proceedings will

be rendered a nullity."

I will commend the lower court for given the matter expeditious hearing; and indeed a court that would

not tolerate the lethargy or indolence of counsel. It is often the case that when a counsel loses a case,

automatically, the court is accused of not having granted a fair hearing to the party that lost the suit or

the appeal. In the court below, the appellant who is complaining of lack of fair hearing also admitted

that indeed he was absent from court on the day in question which was his fault.

The court I repeat must progress with the business of the court and must not wait for indolent, lazy or

unprepared counsel, and so the lower court did the right by proceeding with the applications. Even in

this court, as appellant in this appeal, neither the appellant nor his counsel are present. They were

conspicuously absent without the permission of the court, even though they have been duly served, and

this appeal had to proceed in accordance with the Court of Appeal Rules, 2011. I would not agree that

the appellant have been robbed of fair hearing. No, he had all the opportunity to participate but he

went to sleep, but the trial court conscious of the fact that Justice delayed is Justice denied proceeded

with the matters to its ultimate conclusion without delay by refusing to be fettered by unnecessary

applications aimed at delaying the cause of Justice.

Consequently, I am obliged from the foregoing to resolve issue three in favour of the respondents

against the appellant who is still in slumber even in this court.

ISSUES FOUR AND FIVE

The 2nd respondent did not join issues with the appellant on issues four and five; thus, issues four and

five will be taken together and determined.

'Whether or not the learned trial judge was right in holding the appellants suit constitute a gross abuse

of court process". Whether or not the learned trial judge was right in dismissing the appellant suit as he

did.

On issue four, the appellant argued that he has locus standi to institute and maintain this suit and that

the appellant was not a party or privy to any other suit apart from the instant suit and that there was no

duplicity or multiplicity of actions by the same parties and on same issue/ subject matter of paternity.

He further contended that this suit is not vexatious or oppressive and that his matter could not have

been an abuse of court process and he prayed this court to resolve issue four in his favour.

On issue five, the appellant submitted that the learned trial judge erred to have dismissed the

appellant's suit. He contended that what the lower court should have done is to strike out and not to

dismiss the appellant's suit, he referred to the case of INAKOJU v. ADELEKE (2005) 30 WRN to support

his position. He thereafter submitted that the lower court misapplied the law and it has led to

miscarriage of justice and he prayed this court to uphold issue five in his favour.

RESOLUTION OF ISSUES FOUR AND FIVE

Notwithstanding the fact that the 2nd respondent has admitted issues four and five, I will have to look

at it and resolve it one way or the other. Abuse or gross abuse of court process does not have a

definitive interpretation, but it can be defined as an improper use of Judicial process see ABUBAKAR v.

BEBEJI OIL AND ALLIED PRODUCTS LTD & 2 ORS (2007) 18 NWLR (pt. 1066) SARAKI V KOTOYE (1992) 9

NWLR (Pt.264) 156 and OGUEIOFO v. OGUEJOFO (2002) 12 NWLR (Pt.780) 171 of 185. Mohammed JSC

in Chief Victor UMEH & ORS v. PROFESSOR MAURICE IWU & ORS (2008) 8 NWLR (Pt 1089) 225 at 260 -

261 held thus:-

"The terms 'abuse of court process' and 'abuse of Judicial process' are one and the same thing. Abuse of

court process simply means that the process of the court has not been used bonafide and properly. It

also connotes the employment of judicial process by a part in on improper use to the irritation and

annoyance of his opponent and efficient and effective administration of justice"

Now to the matter at hand, in view of the decision in respect of issue two in this suit, that the

preliminary objection should not have been granted in view of the fact that the new matter is not

caught by the principle of Rem Judicata. Thus, this matter does not amount to a gross abuse of the

process of the court and this takes me to issue five and the lower court should not have dismissed the

suit. See OJO V. AG OYO STATE (2008) 15 NWLR PT.1110, CBN V AMED (2001) 11 NWLR PT 7204 PG 369

AT 409 AND SARAKI V. KOTOYE (1992) 9 NWLR PT.264 PG. 156.

This matter does not constitute a gross abuse of court process and it's not frivolous vexatious or

oppressive. On the contrary it is a matter that calls for serious sober reflections for the paternity of an

innocent child is in dispute and the traumatic effect of all these litigations on the welfare and stability of

the child can only be imagined and therefore, I urge parties and the court not to trivalise the matter nor

this appeal.

Assuming that the court rightly observed that it has no jurisdiction, it should have struck out the matter

and not a dismissal. A dismissal of action is adjudication on the merits and there can be no adjudication

on the merits where there is no jurisdiction or competence to adjudicate. See DIN V ATTORNEY

GENERAL OF THE FEDERATION (1998) 12 NWLR (Pt.17) 471; AMOBI V NZEGWU (2008) 12 NWLR (PT.

938) 120 and EGWASIM v. ODICHIE (2004) 10 NWLR (Pt. 882) 613

Issue five is resolved in favour of the appellant and the 2nd respondent to the extent that the

appellant's matters should not have been dismissed. Shorn of any embellishment, the crux of this

matter which is whether dissolution of marriage has determined the paternity of a child is sacrosanct,

glossing over the record of proceedings and part of the Judgment in suit HCM/4D/2007, the 1st

respondent said "after the marriage we lived together for one week" similarly the court too held that

"having listened to the uncontroverted evidence of the petitioner and since the parties lived for only

one week after wedding"

To my mind the paternity of the disputed res has not been determined, anybody can be awarded

custody of a child but the most important thing is that if a party is claiming paternity it is trite that a

court of Law should be allowed to determine same on proof of evidence relating to paternity, which

could only be done by referral for a DNA test of the parties involved. After such test the court has a duty

to declare the actual father of the child in dispute, in consonance with the evidence at its

disposal.Ordinarily, much as it is desirable for this court to invoke Section 16 of the Court Of Appeal

Rules 2011, this court will hesitate to do so as it will be proper for a court to go into the evidence before

such declaration if need be and therefore in view of the fore going, and in order to do ultimate justice in

this case, it will be best to send this suit back to the Chief Judge of Ekiti State to re assign same to a

different judge for the determination of paternity issue.

In view of the foregoing, the appeal is not lacking in merit and it therefore succeeds

There is no order as to costs.

CHIDI NWAOMA UWA, J.C.A.: I agree

TOM SHAIBU YAKUBU, J.C.A.: Having had the privilege of reading the draft of the judgment, just

delivered by my learned Brother- Sotonye Denton West, JCA, which I agree with, I too allow the appeal.

It is meritorious.

I therefore abide by the consequential orders, including that as to costs contained in the leading

judgment, accordingly.

>

Appearances

Dapo Agbede with Bamidele Adodo for 1st Respondent.

2nd Respondent not representedFor Appellant

AND

Appellant not represented For Respondent