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JULIUS BERGER NIGERIA PLC & ANOR v. MRS. PHILOMENA UGO

(2020) LPELR-49544(CA)

In The Court of Appeal of Nigeria

On Friday, the 13th day of March, 2020

CA/OW/271M/2018


Before Their Lordships

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria


Between

1. JULIUS BERGER NIGERIA PLC
2. GODWIN OBADO - Appellant(s)

AND

MRS. PHILOMENA UGO - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on Civil Procedure.
FACTS:
This is an appeal against the judgment of Imo State High Court in Suit No. HOW/806/2017, delivered on 24th May, 2018, by Hon. Justice K.A. Ojiako, wherein the Court upheld the preliminary objection raised by the Respondent (in part) and dismissed the plaintiffs' suit on the ground that it was caught up by the doctrine of estopped and as such was an abuse of the Court process.

At the lower Court Appellants, as plaintiffs, had sought the following Reliefs:
(a) "A declaration that the judgment of this Honourable Court in Suit No. HOW/581/2007delivered by Hon. Justice N.B. Ukoha on October 26, 2009, was obtained by fraud.
(b) An order setting aside the judgment of this Honourable Court in Suit No. HOW/581/2007, delivered by Honourable Justice N.B. Ukoha on October 26, 2009, which was obtained by fraud Alternatively to A & B;
???An Order setting aside the part of the judgment of Honourable Justice N.B. Ukoha which awarded to the claimant in suit NO.HOW/581/2007 in the sum of N28,516,680.00 (Twenty Eight Million Five Hundred and Sixteen Thousand Six Hundred and Eighty Naira) as special damages for Nigerian treatment and the sum of 108,00.000 (sic) Lakh for her overseas treatment for having been obtained by fraud.
(c) An Order for refund of the sum of N62,924,608.00 (Sixty Two Million, Nine Hundred and Twenty- Four Thousand, Six Hundred and Eight Naira) deposited in the Registry of the Court of Appeal, including interest accrued thereon.
(d) An Order awarding special damages to the claimants."

The Appellants' claim at the Court below was that some of the receipts tendered by the Respondent (as claimant in Suit No. HOW/581/2007) were procured by fraud/forgery. Therefore, since those receipts which were obtained by fraud/forgery were the basis of the trial Court's award of special damages in favour of the Respondent, those damages awarded by the trial Court in its judgment should be set aside for the obvious fraud.

The Respondent was served the originating processes of this suit (How/806/2012) on the 6th of November, 2017 and instead of filing a defence to contradict the allegations of the Appellant that some receipts relied upon by the trial Court were obtained by fraud/forgery, the Respondent filed a Notice of Preliminary Objection dated 22nd January, 2018, challenging, in limine, the jurisdiction of the lower Court to adjudicate over the Suit on the ground that the Suit at the lower Court was based on the issue of fraud/forgery, which had been determined by the Court of Appeal in its interlocutory ruling (on an interlocutory application filed by the Appellants) in CA/OW/146/2010, on 28/3/2013.

Appellants had filed a counter affidavit to the preliminary objection, in opposition. The parties filed written addresses and after taking arguments on the preliminary objection, the trial Court, in a considered Ruling, delivered on 24/5/2018, upheld the preliminary objection, in part, agreeing with the Respondent, that Appellants' Suit as constituted, was caught up by the doctrine of issue estoppel. It also held that the suit was an abuse of the process of the Court. The lower Court proceeded to dismiss the suit and awarded cost of N350,000.00 (Three Hundred and Fifty Thousand Naira) to the Respondent as cost, against the Appellants.

Dissatisfied with the decision of the High Court, the appellant appealed to the Court of Appeal.

ISSUES:
The Court of Appeal determined the appeal by adopting issues two and three formulated for determination by the Respondents which are:
1. Having regard to the Ruling of this Honourable Court, delivered on 28/3/2013 in Appeal No. CA/OW/146/2010, whether the Trial Court was right to hold that Appellants' suit No. HOW/806/2017 was caught - up by issue estoppel and was an abuse of the Court process, and was an afterthought.
2. Whether the trial Court exercised its discretion judicially and judiciously when it awarded N350,000.00 as cost to the Respondent,

DECISION/HELD:
In conclusion, the Court of Appeal dismissed the appeal.


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