⦿ CASE SUMMARY OF:
Noga Hotels International S.A. v. Nicon Hotels Limited & Ors. (2007) – CA
by PipAr Chima
⦿ NOTABLE DICTA
* ISSUE: NATURE OF ISSUE & GROUNDS OF APPEAL
It is trite that a Respondent may not formulate issues outside the grounds of appeal contained in the Appellant’s Notice of Appeal, in this case contained in Pages 337 – 346 of the printed records of Appeal. Issues for determination must be based on and correlate with the grounds of appeal and should be an answer to the grounds of appeal. An issue may encompass one or more grounds of appeal, it is incompetent where the issues are not based on the grounds of appeal, they are irrelevant. Issues for determination in an appeal is akin to pleadings in the lower Court, hence adherence to the strict observance of the rules on formulating issues for determination. If all the above constituent elements or requirements of the doctrine are not fully established, the plea of estoppel per rem judicatam can not be sustained. – Nwaoma Uwa, JCA. NOGA v. NICON (2007)
Issues for determination must therefore be based on, correlate and be tied to a ground of appeal. The grounds of appeal must reflect the grievance of the appellant against the judgment of the trial court. In the absence of a valid ground of appeal any issue formulated is necessarily incompetent and is liable to be struck out. Likewise any ground of appeal not related to any issue is deemed abandoned – becomes irrelevant to the appeal and is likely to be struck out. – ADEKEYE, JCA. NOGA v. NICON (2007)
* INTERPRETATION: WHERE AMBIGUITY EXIST
On the other hand where the literal interpretation of the provision of a Statute will result in some ambiguity or injustice, the Court may seek internal aid within the body of the statute itself or external aid from statutes which are in pari materia in order to resolve the ambiguity or to avoid doing injustice in the matter. – Nwaoma Uwa, JCA. NOGA v. NICON (2007)
* INTERPRETATION: SPECIFIC THINGS MENTIONED
It is note worthy that where a Statute mentions specific things, those things not mentioned are not intended to be included. – Nwaoma Uwa, JCA. NOGA v. NICON (2007)
* ESTOPPEL: ISSUE & CAUSE OF ACTION ESTOPPEL
Two types of Estoppel by record are:- (a) Cause of Action Estoppel – which precludes a party to an action or his agents and privies from disputing as against the other party in any subsequent proceedings, matters which had been adjudicated upon previously by a court of competent jurisdiction between him and his adversary and involving same issue. (b) Issue Estoppel which precludes a party his servant, agent or privy from re-opening or relitigating as against the other party or his agents and privies in any subsequent proceedings, issues which were distinctly raised in a cause of action and appropriately resolved or determined in any suit between the parties in a court of competent jurisdiction. – ADEKEYE, JCA. NOGA v. NICON (2007)
Noga Hotels International S.A.
NICON HOTELS LIMITED & ORS.
⦿ LEAD JUDGEMENT DELIVERED BY:
Chjdi Nwaoma Uwa, J.C.A.
* FOR THE APPELLANT
– Professor S.A. Adesanya (SAN).
* FOR THE RESPONDENT
– Mr. Mahmoud SAN (3rd Resp.).
⦿ CASE HISTORY
The appeal is against the judgment of the Federal High Court, Abuja (hereafter referred to as the trial Court) delivered on the 27th day of May 2004 in Suit No. FHC/ABJ/PET/1/2002. The Suit was commenced by way of Petition by the appellant as Petitioner pursuant to Section 300 of the Companies and Allied Matters Act, 1990 dated 10th April, 2002 and filed on the 11th day of April 2002 against the Respondents.
⦿ ISSUE(S) & RESOLUTION
(1) Whether the doctrine of res judicata applies to the present case?
A. From the claims of the parties earlier reproduced it is clear that the subject matter of the claims in the earlier Suit and the suit that led to this appeal, are not the same. While the present suit challenged the offer for sale or sale of the 1st Defendant, the claims in the present suit are extensive and relates to the bank accounts, and sale of 1st defendant to the public. The earlier suit challenged the deconsolidation of the assets of the 1st defendant by the defendants, for instance, by separating under the directive of the Federal Government of the assets of NICON Insurance Corporation from assets which do not belong to Insurance business which should be transferred. The Judgment in the previous suit was not final, it could be varied, re-opened of set aside by the same Court or any Court of coordinate jurisdiction but, may be appealed against to a Court of higher jurisdiction as was done in that Suit, the suit having been dismissed for want of diligent prosecution. In the suit there was an application subsequently brought to set aside the order of dismissal and to relist the suit for hearing.
B. As rightly argued by the appellant’s learned senior counsel, the parties in the two suits are not the same. There are ten defendants in the present suit whereas there were six in the former, suit. The 3rd Respondent who raised the issue of estoppel was not one of the six defendants to the earlier suit. The Attorney-General of the Federation, the Minister of the Federal Capital Territory (FCT) and the Minister of Finance, parties in the earlier suit were not parties to the present suit, 2nd – 9th Respondents in the present suit were not parties in the earlier suit, the parties not being the same estoppel cannot apply to the present case.
(2) if the doctrine of res judicata does not apply whether there is sufficient evidence from the records of the trial Court that the NICON HILTON HOTEL ABUJA is part of the business of the 1st Respondent (the joint venture) to which Article 82 of the Articles of Association applies?
A. In the present case there is no ambiguity to necessitate internal or external aid from other statutes to resolve any ambiguity. The words of Article 82 are clear and unambiguous. Article 82 would be and is applicable if it had been determined for sure in the suits before the courts that the hotel NICON Hilton Hotel Abuja is part of the business of the 1st Respondent. Neither in the earlier suit nor the present was it determined that the 1st Respondent owned or is part owner of the Hotel, then sub paragraph (a) of Article 82 would be applicable. Business of the company would be taken to mean a business owned by the company (1st Respondent). Similarly, other assets of the company in sub paragraph (b) means property or other assets of the Company, that is property and assets owned by the Company (1st Respondent).
B. There is insufficient evidence from the records of the trial court that the NICON Hilton Hotel Abuja is part of the business of the 1st Respondent to which Article 82 of the Articles of Association applies, as urged by the learned appellant’s Counsel. Since it has not been determined that the NICON HILTON Hotel, Abuja is owned or partly owned by the 1st Respondent, Article 82 of the Articles of Association does not, and cannot apply. I therefore hold that NICON HILTON Hotel Abuja, is not part of the business of the 1st Respondent NICON HOTELS LIMITED, to which Article 82 applies.
(3) Whether the activities of the 1st Respondent cover ownership and management of hotel as contended by the appellant or it is restricted to managing the hotel as contended by the 3rd Respondent?”
A. ‘Run and manage’ is clear and unambiguous and cannot be interpreted to mean or imply ‘ownership’. Article 3(1) is specific as to the object of the 1st Respondent’s function in respect of the Federal Capital Territory, (F.C.T.) Abuja, that is to run and manage an Hotel situate at the F.C.T. Abuja.
B. I am of the opinion that the activities of the 1st Respondent do not cover ownership and management of hotel as contended by the appellant, but restricted to managing the hotel as contended by the 3rd Respondent and I so hold.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
In agreement with the learned Senior Counsel’s argument in respect of the rules/requirements for the doctrine of res judicata, it is necessary to outline the conditions for application of estoppel per rem judicatum. For the plea of estoppel per rem judicatum the following must be established: 1. The Parties or their privies are the same in both the previous and present proceedings; 2. The claim or issue in dispute in both actions is the same; 3. That the res or the subject matter of the litigation in the two cases is the same; 4. That the decision relied upon to support the plea of estoppel per rem judicatam is valid, subsisting and final; and 5. That the Court that gave the previous decision relied upon to sustain the plea is a Court of competent jurisdiction. – Nwaoma Uwa, JCA. NOGA v. NICON (2007)
⦿ REFERENCED (OTHERS)
⦿ SIMILAR JUDGEMENTS