ALFRED BADARA TURAY AND KIM SUNG NYEONG & OTHERS (001)  SLHC 43 (30 July 2020);
Before this Court is an application by Notice of Motion dated 30th day of June, 2020 filed by Jabbi Associates of 17 Percival street, Freetown Solicitors for the 3rd Defendant/Applicant seeking for the following orders:
- That this Honourable Court grants leave for this Motion to be heard despite two clear days notice has not been given to the Respondents therein.
- That this Honourable Court strike out the Originating Summons dated 24th June, 2020 and all other processes herein for irregularities.
- That this Honourable Court lacks the jurisdiction to hear and determine this matter as the same issues herein have been heard and determined by a Court of concurrent jurisdiction
- That this matter amounts to an abuse of process
- Any other order that this Honourable Court may deem fit and just to grant
At the hearing of this application Counsel used the affidavit of Abdul Karim Koroma sworn to on the 30th day of June, 2020 and the exhibit(s) attached thereto and filed therein.
Paragraphs 4 to 6 as contained therein contains the gravamen of the issues to wit:
Paragraph “4” That prior to the institution of this matter, the 3rd Defendant herein instituted an action against the parties in this matter in respect of the same issues, and that matter had been fully determined before the Honourable Justice K. Kamanda (as he then was)
Paragraph “5” That the order of the Honourable Justice K. Kamanda dated 4th March 2020 is still valid and enforceable and the Plaintiff herein has taken no step to set it aside nor has it been overturned by the Appellate Court
Paragraph “6” That I verily believe that this Honourable Court is hereby “functus” of all the issues in this matter and this action amounts to an abuse of the Court process
In his submission, he notes that they intend to strike out the Originating Summons filed for and on behalf of the Plaintiff on the following grounds
- The application by itself is an abuse of process, because the issues raised therein has been heard and determined by a Court of concurrent jurisdiction.
Firstly he refers the Court to exhibit “AKK 2” – which is the Writ of Summonsissued by the 3rd Defendant/Applicant. He refers the Court to the reliefs in the statement of claim and the particulars thereof,
which exclusively outlines the interest of the 3rd Defendant/Applicant in this matter.
He also refers the Court to exhibit “AKK 3” which is the judgement of Justice Kamanda (as he then was) dated 4th day of March 2020.
He also submit and refers the Court to the Orders in that judgement, for the 3rd Defendant as judgement creditor. He submit that loan was given to the 3rd Defendant for which this judgement was obtained, which has never been challenged in any Court. He submit that what the Plaintiff is seeking to do with this Originating Summons is to attempt to rehear the issues that has already been determined by Justice Kamanda J. (as he then was), which is not proper at all.
He submit that if the order is challenged, the consent judgement the Plaintiff/Respondent ought to know the appropriate steps to take. He further submit that if the Plaintiff/Respondent has some issues or is dissatisfied with the 2nd Defendant, that should not and ought not to affect the “bona fides” interest of the judgement creditor. He reiterate therefore that the application is an abuse of process.
On the jurisdictional limb of his objection, he submits that this Court is not the appropriate forum to challenge the judgment of a Court of concurrent jurisdiction. In essence, he notes what the Plaintiff wants this Court to do is to rehear this matter already heard by Justice Kamanda J. (as he then was). The circumstances therefore, he submit that, the Originating Summons as is ought and should be struck out. He also refers this Court to the injunction granted and remarked that the injunction be vacated, so as not to jeopardise the legitimate interest of the 3rd Defendant/Applicant. He brings to the fore of the Court’s attention the irregularities contained in the Originating Summons which is that the CC No. is the same as the substantive matter in the Originating Summons and there should and ought to be different.
In opposing the application L.M. Baryoh Esq. Counsel for the Plaintiff/Respondent referred to the affidavit in opposition sworn to by Alfred Badara Turay on the 2nd of July, 2020 for which he said attached to the affidavit is one exhibit (exhibit ABT 1) which is a copy of Notice of Motion same dated 17th March, 2020.
He submit that they rely on the entirety of the affidavit in opposition, with particular emphasis placed on paragraphs 4-12 inclusive.
In answer to submissions made by AKK Esq. on the issue of “Res judicata”, he submit that the order that are prayed for in the Originating Summons does not any way amounts to an abuse of the process of the Court, as the application is regular and so proper.
He refer to the case of Johnson and Gorewood 2000 UK House of Lords 65 wherein the proposition of the Law is that you cannot litigate twice, and the matter are certainly in his view not the same.
He submit that they are completely different from what is contained in exhibit “ABT 1”, as referred to in their affidavit in opposition.
In distinguishing the matter, he referred to the Writ of Summons dated 3rd October, 2019, wherein the 3rd Defendant/Applicant was seeking for $ 4.5,000,000 (4.5 Million United States Dollars) which said sum they claimed were monies owed and payable to them (the 3rd Defendant company).
He further submit that in their Originating Summons dated 24th June, 2020, the Plaintiff herein Alfred Badara Turay was asking the Court to determine issues surrounding the representation of a Director of a company to service a loan for 4.5 Million United State Dollars, obtained without the knowledge, consent and approval of the Plaintiff who is the majority shareholder with 51% shares, and also without the concurrence of the Board of Directors.
He refers the Court to FTCC 060/17 between Mohamed Bangura and Delian Shanghai Ocean Fishing Co. (unreported), same before the Honourable Justice Samba, wherein she upheld and followed the proposition of Law as in Johnson V. Gorewood
On the issue of whether this Court lacks jurisdiction he submits and:
- Refers the Court to paragraph 7 of their affidavit in opposition and cross-referenced to AKK Esq. submissions that what is proper, to have appealed against the consent judgement, as not correct.
He refers the Court to exhibit “ABT 1” which was an application filed for and on behalf of the Plaintiff/Respondent, seeking to be added in that pending suit filed for and on behalf of the 3rd Defendant/Applicant.
He submits that it was argued then by the 3rd Defendant Solicitor that there was no way they could have been added as a party as their application was subsequently thrown out. He submits that for Counsel to have submitted that they never took steps to set aside the said judgement or appeal was misleading. He intimated that they cannot appeal a matter to which they were not a party. Now they are “fighting” for their rights as certain shareholder/members of the company have acted ultra vires and there is imminent fraud that has been committed and that they can prove same. Those actions he submitted have the prosperity to bring the company on its “knees”.
He further submit that the Originating Summons filed by the Plaintiff/Respondent before this Court is regular, as Counsel failed to show any proposition of Law that their application is irregular. He submits that in filing the Summons, they have complied stricto sensu with the Companies Act of 2009, and pertinent provisions on filing of same, as provided for by the Rules of 2007. Finally he submit that the application filed by Counsel for the 3rd Defendant/Applicant only seeks to have this matter determined summarily, and is a ploy to restrain this Court from delving into the substantive issues.
In his reply A.K.K Esq. refers this Court to paragraph 4 of the affidavit in opposition arguing that the point raised that the issues in the Originating Summons are different from those contained in exhibits in his application, he begs to differ. He refers the Court to the statement of claim in “AKK 2” which delves principally on recovery of sums are the same issues they have raised in their application, that they are seeking to strike out which is exhibited as “AKK 1”. He refers the Court to the reliefs they are seeking. All the issues he submit are bordering on the issue of the loan, which has been settled by the Judgement of Kamanda J. (as he then was). He submit that there is nothing new raised.
He refers the Court to Exhibit “AKK 3” and specifically read out the Orders as contained therein.
The 3rd Defendant he submit cannot be drag into whatever internal issues they have, as they are Judgement-creditors. He submit with reference to Counsel for the Plaintiff/Respondent point, that they took steps to set aside the judgement as not sufficient enough as setting aside the Judgement which are two different things.
Analysis of law
The thrust of this application questions the authority of this Court to proceed on the issues raised and paper filed by the Plaintiff/Respondent as it bothers on allegation contained in their Originating Summons, against the issue of “Res judicata” and estoppels on record raised by Counsel for the 3rd Defendant/Applicant.
In summation Counsel for the 3rd Defendant/Applicant is requesting this Court, not to touch and or discuss on issues bordering on ones already dealt with by a Court of concurrent /or co-equal jurisdiction.
It will be best however to set out the following undertones as a prelude however from the start which bothers on consent judgement:-
A Court will enter Judgement by consent of a party or both parties provided the consent is express, please and not presumed. A consent judgement is basically an
agreement by the parties, to the terms recorded in the consent judgement (emphasis mine) its juridical basis being contractual see: REPUBLIC HIGH COURT (COMMERCIAL DIVISION) ACCRA, EX-PARTE, THE TRUST BANK LTD DATED 12TH NOVEMBER, 2008 S.C. PERALUGUBA JSC).
Once it is entered, the Court will enforce it as a judgement (OWUSU V. KUMAH (1984-86 2 GLR 29 CA) It is also worth setting out the ratio reached in the case of UNITED ENGINEERNG WORKERS UNION V. DERANAYAGAM (1968) AC 356 at 390 CA as applied in ASAHN INDUSTRIES LTD V. KOFI BOAT BUILDING CO. LTD (1984-86) 1 GLR 453 C.A.
“A Court of Law has no doubt the formal power of refusing to make an order in accordance with a settlement reached by the parties, but it is a power which is exercised only in exceptional cases, as for example when one of the parties is under the protection of the Court. Otherwise the Court does not inquire whether the proposed settlement achieves a just result, it assures that it does. It assumes also that Counsel has authority to make a settlement on behalf of his client, if he has not, it is a matter that they must settle between themselves, the consent judgement of 4th day of March, 2020 which will hereinafter be referred to as the judgement are its terms precise and express, and are there minutes of same?
This Court must quick to point out that as correctly raised by Counsel for the 3rd Defendant/Applicant in his argument, this Court is of co-equal jurisdiction with the Court which reached the settlement of the terms therein the consent order and as such lacks authority to review and rule on same to all intent and purposes.
Both sides will agree that when once a consent order is entered it becomes the judgement of the High Court.
What this Court shall however confine itself to is whether the issues raised therein have been determined by a Court of concurrent jurisdiction and such other issues appertaining thereto. Order 43 Rule 9 of the High Court Rules 2007 is quite explicit on the issue of judgement by consent where Defendant appears by Solicitors.
“In any cause or matter where the Defendant has appeared by a Solicitor, no order for entering judgement shall be made by his consent unless the consent of the Defendant is given by the Solicitor or agent, but evidence of the consent shall be provided to the Court”
This set out the threshold/minimum requirements that must be satisfied and what needs to be done, in an event the terms of settlement reached and consent entered accordingly.
Is this application of the Plaintiff/Respondent on the 24th of March, 2020 viz, the Originating Summons and the affidavit in support therewith on all fours with the issues raise in FTCC 125/20 T. NO.16?
In paragraph 4 of the Originating Summons which is the substantive application, the prayers therewith (reasons requesting this Court to set aside the orders of the consent judgement dated 4th March, 2020 expressly made between the Defendant, be set aside as it was done without authority of the Board of Directors of the 2nd Defendant and knowledge of the Plaintiff.
This brings to the fore issues that ought to have pre-dated the minutes of the settlement and consequently consent judgement reached, or at best ought to have been brought to the notice of Kamanda J. (as he then was) prior to entering the terms of the settlement. Pertinent question the parties ought to have considered and a kind consideration of the learned Judge
- Was there a shareholders agreement prior to and after the they obtained the loan
- Minutes of the meetings of the Board of Directors and as to whether resolution were reached reflecting the consent of all the shareholders
- Or if at all no shareholders meetings was held, if it is established that if all shareholders who could also be the Director are present at a meeting and unanimously give their assent to a proposed, it does not matter that no formal resolution was put to the vote (see: EXPRESS ENGINEERING WORK (1920) 1 CH 466 CA)
- The Directors fiduciary responsibilities, in so far as a Director of a company is bound by fiduciary duties at Law, these duties are owed to the company only : PERCIVAL V. WRIGHT (1902) 2 CH 42
- Was there a resolution in writing signed by all Directors, which shall have the same effect as a resolution of the Directors passed at the meeting of the Directors duly convened?
- Or are there potential conflicts of interest that may have clashed with the fiduciary obligation of the Directors in obtaining the said loan: see
TRANSVAAL LANDS CO. V. NEW BELGIUM (TRANSVAAL LAND AND DEVELOPMENT CO. (1914) 2 CH 488 CA
Certainly Counsel for the Plaintiff/Respondent is aware that if they are dissatisfied with the judgement of the 4th March, 2020, they ought to have taken steps to Appeal against same and or file the necessary papers requesting for reliefs that might have been within the purview/jurisdiction of the High Court.
In the Nigerian case STAR PAPER MILL LTD & ANOR V. BASHIRU ADETUNJI & ORS (SUPREME COURT OF NIGERIA), the ratio decidendi of the case on consent judgement, the learned Justice has this to say:
“A consent thus by its nature, is first and foremost a contractual
agreement between the parties. Thus a consent judgement constitutes a final judgement of the Court and is only appealable with the leave of the Court”.
Reference to OTUNBA OJORA V. AGIP OIL PLC &ANOTHER (2005) 4 NWLR (PT 916) Mohamed JSC in RACE SUPPLY COMPANY LTD VS. AKIBU (SUPRS) stated the position beyond any doubt thus:
“In line with this definition where the parties before a Court have agreed on Law their dispute should be determined and ask the Court to enter judgement by consent and in accordance with their terms of settlement and the Court orders with their consent that a judgement be entered the product in a consent judgement, in this regard, it is necessary to point out that a consent judgement or order in as effective in Law in all respect of all the matters which are herein settled as any other judgement or order arrived at after the matter are fully fought at, to the end of a trial”
The judgement of the 4th of March, 2020 is not appealed against, nor is there on record given a ground of appeal for the Court of Appeal to, or the exercise of this Court’s discretion or if there is an application for stay, mindful of the timelines of when appeals are lodged for, the High Court’s consideration (see Court of Appeal Rules 1982 Rules 28,32 and 10(1) and 10(4) of same.
Counsel for the Plaintiff/Respondent has raised the issue of fraud, and other malfeasances, which might very well form the basis of strong grounds of Appeal as may be so corrected, but this Court been functus might be so contained to proceed therein
Counsel for the Plaintiff/Respondent is also reminded that a judgement remains valid and binding or all parties for all times until set aside by an appellate Court.
See: RASC LTD V. AKIB
Is the issue of ‘Res judicata’ as so clearly raised by Counsel for the 3rd Defendant/Applicant, and so seriously contended by the Plaintiff/Respondent been settled in any way?
We will take the classic definition of ‘Res judicata Per ADIO J.S.C in MADUKOLU V. NKEM DILIM (1962) 1 ALL NLR Pt 4 587 1962 2 SC NLR 341
“What the principle of Res judicata means is that where a competent Court has determined an issue and entered judgement thereon neither of the parties to the proceedings may relitigate that issue by formulateing a fresh claim, since the matter is Res judicata”
Principles of Law brought out clear in this case is that further, a plea of Estoppel per rem judicatam deprives the Court of jurisdiction to determine an issue to which it relates, if it succeeds. All the ingredients must therefore be proved. None of them can be presumed. (see IKE V. UKBOASA (1993) 6 NGLR 539.
There is no doubt that the aggregate of issues raised by the Plaintiff/Respondent in the Originating Summons of 24th June, 2020 on all fours with the terms of settlement reached on the 4th March, 2020.
One pertinent question, without the risk of going to the application of the 24th June, is whether the Plaintiff/Respondent was trying to relitigate the matters therein by formulating a fresh claim, mindful that there will be an abuse of the process of Court?
It is but important to remind Counsel that we bestride cautiously with the beckoning words of admonition by BELLGORE J.S.C in MADUKOLU V. NKEM DILIM (1962) SC NLR 341 (1962) 1 ALL NLR 567.
“When a matter is kept in litigation by constant suits in respect of the same subject matter and between the same parties and or their privies the Courts process of adjudicating may thereby be abused and scan
dalized. It is for this purpose that these must be an end to litigation. This led to the principle of res judicata. Once a matter is decided and it is final between the parties or their privies in respect of the same subject matter. Thus the matter is final and closed between the parties and their privies which include their successors or agents in respect of the same subject matter. It is a matter judicially decided. This is what res judicata is all about”
The sheer disregard of the Articles of association and its concommitant allegations of mal-administration could very well form a basis for an action or same good grounds of Appeal arguable before the Court of Appeal. But as no application is before this Court appertaining for a stay, this Court is so constrained.
To all intents and purposes the Plaintiff/Respondent is member of the 2nd Defendant; Chung Gang Fishing Company (however be it a majority shareholder thereof) the Defendant/Judgement Debtor of the consent settlement order granted on the 4th day of March, 2020. In furtherance to this Order a Receiver was appointed pursuant to paragraph (C) thereof with clearly delineated responsibilities in (D) of same (Ex “AKK 3”), certainly the 3rd Defendant/Applicant and the Plaintiff are privies in this regard.
The terms of the settlement are as contained in the Minutes of Judgement, which crystallised into a “Consent Judgement”
As I reiterated earlier, there is no application before me for leave to appeal, and or appeal filed therein, nor for a stay.
The gravamen of the issues in the Consent Judgement is in all material particulars the same issues and or ancillary thereof to the Originating Summons initiated and issued dated the 24thn June, 2020 by the Plaintiff/Respondent.
This brings to the fore of the Court and so well established in Law, a plea of Res juidicata or issues Estoppel on the satisfaction of the following test as so clearly laid out hereinbefore:-
- The question for decision in the current suit must have been decided in the earlier proceedings
- The decision upon to support the plea of issue estoppels must be final and given by a competent Court
- The parties involved in both proceedings must be the same person or by their privies
It is also well settled that once the above conditions are shown to co-exist the subject matter of litigation is caught by estoppel per rem judicatam and neither party nor his privy or her privy may relitigate that issue again by bringing fresh action on it. The matter is said to be res judicata and conclusive. (see OGBOBU V. NDIRIBE (1992) 9 NWLR (PT 245) 40, YOYE V. OLUBODE (1974) 10 S.C 209 at 220
Consequent upon the foregoing, I am satisfied in my mind, that to accommodate the Plaintiff/Respondent at this stage with his application as in the Originating Summons is to circumvent or determine the consent orders of a Court of co-equal jurisdiction, thus tacitly allowing them to relitigate by formulating a fresh claim in instituting same, which this Court cannot lend credence to.
This Court therefore orders as follows:
- Strike out the Originating Summons dated 24th June, 2020 and all processed therein for irregularities
- That this Court lacks the jurisdiction to hear and determine this matter as the same issues herein involving the same parties have been heard and determined by a Court of concurrent jurisdiction, and thus abuse of process.
- The Plaintiff/Respondent to pay Solicitor’s cost of Le 10,000,000 (Ten Million Leones).