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1
They could not be entertained as they were res judicata and
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2
It would amount to the high court adjudicating as an appeal court over its own decision.
The facts would be stated hereunder for a fuller understanding of the background of this appeal.
FACTS:
The original Appellant in this appeal was a former Permanent Secretary who was in the employment of the Lagos State Government and had initially been the owner of the landed properties located at Plot 177 Victoria Island. Lagos, and No. 25, Cooper Road, Ikoyi, Lagos. On the indictment of the original Appellant by an investigation panel set up by the Lagos State Government in 1976, these properties were forfeited to the Lagos State Government by virtue of the Public Officers and other Persons (Forfeiture of Assets Order) 1976 Legal Notice No. 23 of Lagos State 1976, Determination of Interests in State Lands (No.1) Order LSLN 9 of 1976 made pursuant to Section 1 of the Determination of Certain Interests in Land Edict No. 3 of 1976. The Lagos State Government, subsequent to the forfeiture of the said properties, vested the properties in the Lagos State Development and Property Corporation ("the 1st Respondent"). See: Pages 79-86 of the record for the copy of the certificate of occupancy vesting Plots 175-178 in the 1st Respondent. Sometime in 1993, the Federal Military Government of General Ibrahim Badamosi Babangida, the then Head of State, promulgated the Forfeiture of Assets (Release of Certain Properties) Decree No.54 of 1993 ("Decree No. 54 of (1993"), with a commencement date of 23rd August, 1993. By Section 1 of this Decree, several properties forfeited to the Federal and State Governments as identified in the second column of the schedule to the Decree, were released to the persons in the first column of the schedule. The original Appellant's name was included as Item 2 of the schedule with the corresponding properties of Plot 177 Victoria Island, Lagos, No. 25, Cooper Road, Ikoyi, Lagos and No. 1, Obanikoro Road, Ikoyi, Lagos.
After the promulgation of the said Decree, the original Appellant demanded the release of the afore-mentioned properties from the Lagos State Government, through an application made to the Military Administrator of the State. The Lagos State Government released one of the forfeited properties: No. 1, Obanikoro Road, Ikoyi, but declined to release the other two properties.
The original Appellant being dissatisfied with this instituted Suit No. M/415/95 against the Military Administrator of Lagos State, the Attorney General of Lagos State and the Registrar of Titles, by an originating summons filed on 7th July, 1995. By this originating summons, the original Appellant claimed principally for a declaration that under and by virtue of Decree 54 of 1993, the properties at Plot 177 Victoria Island, Lagos, and No. 25, Cooper Road, Ikoyi, Lagos had reverted to him and are vested in him as owner.
The Honourable Justice S. O. Ilori delivered judgment in that suit on the 11th day of June, 1996 and answered the question in the affirmative, thereby granting a declaration that the properties reverted to the original Appellant by virtue of the provisions of Decree 54 of 1993.
Subsequent to the delivery of this judgment on the 3rd of July, 1996, the Federal Military Government of General Sani Abacha, promulgated the Forfeiture of Assets (Release of Certain Forfeited Properties etc.) (Amendment) Decree No. 21 of 1996 ("Decree No. 21 of 1996)." This decree had a retrospective commencement date of 6th June, 1995, a date before the institution of the action in Suit No. M'415/95.
Decree No. 21 of 1996 amended Decree No. 54 of 1993 by deleting Item 2 of the earlier Decree. Item 2 contained the name of the original Appellant and the above-named properties. The Decree under Section 2 nullified any judgment delivered in civil proceedings brought in respect of the subject-matter of the Decree.
After the 1st Respondent had instituted Suit No. M/249/ 97, which has given rise to this appeal by an originating summons dated 14th May, 1997, leave to amend the originating summons was granted by order of the learned trial judge. Honourable Justice Ade Alabion 1st July, 1998.
By the amended originating summons, the 1st Respondent sought two main reliefs and other consequential reliefs. The first main relief being a declaration that the judgment in the earlier Suit No. M/415/95 is null and void by virtue of Decree No. 21 of 1996, while the second main relief was for a declaration that by virtue of Decree No. 21 of 1996, the ownership of the properties in question remains in the 1st Respondent. The other reliefs were, in substance, consequential declarations and injunctive reliefs.
The original Appellant initially filed a notice of intention to rely on preliminary objections dated 16th March, 1998 (see Page 26 of the record) to the summons, on the ground that the action is res judicata amounts to judicial review and is unconstitutional. However, on the 29th day of April, 1998, Mr. Kehinde Sofola, SAN., (now of blessed memory), counsel to the original Appellant informed the court that he no longer wished to move the notice of preliminary objection and was ready for the argument on the substantive application. The notice of preliminary objection was therefore struck out by the high court.
At the hearing of arguments on the originating summons, Mr. Sofola, SAN., in his response to the 1st Respondent's arguments in support of the originating summons, argued that the court had no jurisdiction to entertain the Respondent's claims for the reasons that it would amount to sitting on appeal over Ilori's judgment and that the claims were res judicata as a result of the previous judgment in Suit No. M/415/95.
Honourable Justice Ade Alabi dismissed the claims of the 1st Respondent in his judgment for the above reasons urged by Mr. Kehinde Sofola, SAN.
The 1st Respondent appealed to the Court of Appeal which allowed the 1st Respondent's appeal and held, among others, that the Honourable Justice Ade Alabi (as he then was) was wrong to have held that the doctrine of res judicata was applicable to the 1 st Respondent's case and for failing to hold that the effect of Decree 21 of 1996 was a reversal of the decision of Ilori's decision. The judgment of the Court of Appeal is at Pages 211-243 of the record.
Being dissatisfied with the said decision, the original Appellant appealed to this honourable court.
