- CL|Breach of Contract|Foreign Currency|Malpractice
C.B.N & ANOR V. OLAYATO ARIBO
MUSA DATTIJO MUHAMMAD
CLARA BATA OGUNBIYI
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN
SIDI DAUDA BAGE
1. CENTRAL BANK OF NIGERIA
2. DIRECTOR, BANKING SUPERVISION CENTRAL BANK OF NIGERIA
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC: This appeal is against part of the judgment of the Court of Appeal, Lagos Division delivered on 22/3/2010 allowing the appeal of the respondent against part of the judgment of the Federal High Court, Lagos Division delivered on 14/7/2008 by setting aside the order blacklisting him.
The facts that gave rise to the appeal are as follows: The respondent was the Divisional Head of the department in charge of foreign exchange documentation at Equity Bank of Nig. Ltd. Sometime in 2002 the 1st appellant (the Central Bank of Nigeria -CBN) revoked the bank's licence to conduct foreign exchange transactions when it was discovered that it was selling foreign exchange in breach of laid down procedures. The bank was also penalised in the sum of N293.129 million. As a result, the bank's board of directors advised the respondent and two other employees to resign their appointments. The respondent accordingly tendered his letter of resignation on 10th October 2002.
The 1st appellant set up a Special Board Committee to look into the foreign exchange transactions of the bank. Based on the report, the 1st appellant advised the bank to terminate the employment of the respondent and other employees found to be complicit in the illegal foreign exchange transactions. The 1st appellant deemed the actions of the respondent and other affected employees to constitute serious misconduct, which entitled the bank under Section 44(2)(d) of the Banks and Other Financial Institutions Act 1991 (BOFIA) (as amended) (now Section 48(2)(d) of the Banks and other Financial Institutions Act Cap. B3, Laws of the Federation of Nigeria, 2004) to blacklist him. His appointment was accordingly terminated vide a letter dated 5th February, 2003. Consequently he instituted an action before the Federal High Court vide suit no. FHC/L/CS/163/2003 coram Abutu, J against Equity Bank as 1st defendant and the Central Bank of Nigeria (1st appellant) as 2nd defendant challenging the termination of his appointment for the purpose of blacklisting him under Section 44(4) of BOFIA (now Section 48(4) of BOFIA, LFN 2004) even though the bank had accepted his letter of resignation and had paid him his entitlements. The bank had purported to reject the letter of resignation with a letter of termination.
Abutu, J. entered judgment in the respondent's favour as follows:
1. It is declared that the Plaintiff not having been dismissed and his appointment not having been terminated for reasons of fraud, dishonesty or conviction for an offence involving fraud or dishonesty, the 2nd defendant cannot invoke the provisions of Section 44 (4) of the Banks and other Financial Institutions Act, 1991 (as amended) against the plaintiff to blacklist him.
2. It is further declared that the 1st defendant having accepted the resignation of the plaintiff and paid him his entitlements cannot subsequently validly terminate the appointment of the plaintiff.
3. The 1st defendant's letter dated 5th February 2003 for the termination of the appointment of the plaintiff is hereby declared null and void and of no effect. The said letter is hereby set aside."
After the success of the action, the respondent sought employment in other financial institutions. He was unsuccessful because, having regard to his position as a management staff in the banking industry, he required clearance from the CBN before any bank or financial institution could employ him. The 1st appellant refused to grant the clearance on the ground that he had been blacklisted.
In an attempt to overcome this roadblock, he instituted a fresh action against the appellants herein by way of originating summons filed on 31/3/2008 before the Federal High Court, Lagos (the trial court) vide suit no. FHC/L/CS/305/2008. He sought the following reliefs:
1. A mandatory order directing the defendants, particularly the 2nd defendant to de-blacklist the plaintiff and to delete his name from the list of blacklisted persons.
2. An order directing the defendants, particularly the 2nd defendant to comply with the declaration of Hon. Justice D.D. Abutu in the judgment delivered on 11/4/2005.
3. An order directing the defendants, particularly the 2nd defendant, to notify the plaintiff in writing [of] the removal of his name from the blacklisted list.
4. An order for payment of exemplary and aggravated damages in the sum of N40, 000, 000.00 for loss of employment and earnings from 2005 to date of judgment in this suit.
5. The cost of this suit.
The following documents were attached to the supporting affidavit:
i. Exhibit DM1 - Certified True Copy of the Judgment of Abutu, J. dated 11/4/2005;
ii. Exhibit DM2 - Respondent's letter of appeal to the 2nd appellant dated 28/7/2005;
iii. Exhibit DM3 - 2nd appellant's letter dated 19/9/2005 notifying the respondent that his name had been blacklisted; and
iv. Exhibit DM4 - Respondent's solicitor's letter dated 26/9/2005 to the 2nd appellant.
The appellants filed a counter affidavit in opposition to the summons.
At the conclusion of the hearing and relying on the findings of Abutu, J. in Exhibit DM1, the trial court per Hon. Justice Okechukwu J. Okeke, in a considered judgment delivered on 14/7/2008, upheld the blacklisting of the respondent. In reaching his decision, His Lordship relied on findings made by Abutu J. in Exhibit DM1 to the effect that the respondent was indicted in the report of the Special Board Committee tendered before him which found him guilty of foreign exchange malpractices. The respondent was dissatisfied with the decision and filed an appeal before the lower court. He formulated 3 issues for determination. In its judgment delivered on 22/3/2010 the court struck out two of the issues formulated on the ground that they did not arise from the decision of the trial court. It allowed the appeal in part as follows:
"I set aside the decision of the learned trial Judge on the 14/7/08 in respect of reliefs 1 & 3 on the Originating Summons. In its place, I order that the name of the Appellant be de-blacklisted by the respondent I award costs ofN30, 000.00 in favour of the Appellant."
The appellants are dissatisfied with the part of the judgment directing that the respondent's name be de-blacklisted, hence the instant appeal. The parties duly filed and exchanged their respective briefs in compliance with the rules of this court. At the hearing of the appeal on 20th February, 2017, ELUBODE B. OMOBORIOWO ESQ. adopted and relied on the appellant's brief filed on 26/2/2013, settled by CHIEF TUNDE OLOJO, in urging the court to allow the appeal, A.M. MAKINDE ESQ. leading Messrs S.J. ODUMOSU and M. GAMBO, adopted the respondent's brief filed on 15/5/13, settled by him, urging the court to dismiss the appeal.
The appellants formulated 2 issues for the determination of the appeal as follows:
1. Whether the appellants were entitled to rely on the findings of fact in an earlier judgment in the later action as a defence in the later action?
2. Whether there was sufficient evidence before the Court of Appeal to justify the reversal of the decision of the trial court and consequently grant of the relief of de-blacklisting sought by the respondent?
The respondent also identified 2 issues for determination thus:
1. Whether the court below was correct when it reversed the decision of the learned trial Judge on the ground that the appellants did not justify the blacklisting of the respondent from the evidence before the trial court?
2. Whether the court below was right when it held that the trial Judge was in error when he relied upon the findings of Abutu, J. in another judgment in arriving at its own decision especially when the evidence to support the decision was neither produced nor the issues in both cases the same?
The issues formulated by both parties are substantially the same. I shall adopt the issues formulated by the appellants is determining the appeal.
Whether the appellants were entitled to rely on the findings of fact in an earlier judgment in the later action as a defence in the later action?
This issue is the same as the respondent's issue 2.
Learned counsel for the appellant commenced his submissions by contending that the finding of the lower court to the effect that the parties did not plead estoppel or res judicata is not supported by the evidence before that court. He noted that the case before the trial court was predicated mainly on the judgment of Abutu, 3. in FHC/L/CS/163/2003 exhibited by the respondent as Exhibit DM1 in support of his originating summons, as his complaint was that the appellants had failed to comply with the said judgment. He submitted that a judgment includes not only the conclusion reached therein but also the findings of fact upon which the conclusion is based. He referred to the definition of "decision" as stated in Section 318 (1) of the 1999 Constitution of the Federal Republic of Nigeria, 1999 (as amended). He also referred to the definition of "finding of fact" as contained in Black's Law Dictionary, 7th edition, to wit: "a determination by a Judge, Jury or administrative agency of a fact supported by evidence on record usually presented.at a trial or hearing", and submitted that a finding of fact contained in a judgment qualifies as a decision of that court, which remains subsisting until set aside. He submitted that in the course of the hearing of the originating summons, learned counsel for the appellants identified salient findings of Abutu, J. in Exhibit DM1 and related them to the issues in contention in the suit before Okeke, J. He contended that the averments in the counter affidavit and the submissions of learned counsel raised the principle of issue estoppel. That issue estoppel need not be pleaded in any particular form so long as the matters constituting estoppel are stated in such a manner as to show that the party relies on it as a defence or answer. He relied on: Alakija & Ors. Vs Abdullai (1998) 6 NWLR (Pt.552) 1 @ 15 A - B. He urged the court to find and hold that the parties duly raised and argued the issue of issue estoppel/res judicata.
He argued further that even if the court does not agree that the parties raised issue estoppel, the judgment in Exhibit DM1 remains relevant and binding on the parties by virtue of Section 174 (1) & (2) of the Evidence Act 2011. He submitted that the lower court correctly stated the principle that evidence in an earlier case cannot be relied upon in a later case but erroneously went on to hold that while the final decision of Abutu, J. could constitute evidence by producing his judgment, the evidence led therein could not be relied upon by the court in another case to grant the reliefs sought on a different cause of complaint. He submitted that the principles were misapplied in the circumstances of this case, having regard to the fact that the respondent had approached the trial court seeking an order compelling the appellants to obey the decision reached in Exhibit DM1. He submitted that Exhibit DM1 contained several findings of fact and considerations of the law from which a conclusion was finally drawn and that the appellants relied on those findings of fact and not the evidence. He referred to paragraph 6 of the appellants' counter affidavit at pages 35 - 36 of the record.
In addition to Section 174 (1) and (2) of the Evidence Act, he also relied on sections 59 and 173 to buttress his submission that a judgment is conclusive proof of what it decides. He submitted that where a party relies on a judgment against which he has not appealed, he is deemed to rely on every part of the judgment including the findings leading to the ultimate conclusion reached. He submitted that the respondent was not entitled to rely on the aspects of the judgment favourable to him and jettison those parts which are not. He referred to: A.C.B. Pic. Vs Losada (Nig.) Ltd. (1995) 7 NWLR (Pt.405) 26 @ 53 D. On the effect of a judgment not appealed against he relied on: K.T. & Ind. Pic. Vs The Tugboat "M/V JAPAUL B" (2011) 9 NWLR (Pt.1251) 133 @ 157 B - G. He submitted further that the questions raised by the respondent in the earlier suit were fully decided by Abutu, 1 in Exhibit DM1 and the trial court was therefore entitled to rely on the findings therein. He contended that to act otherwise would have amounted to Abutu, J. sitting on appeal over the decision of a court of concurrent jurisdiction. He relied on: Okoye Vs Nigerian Furniture Co. Ltd. (1991) 6 NWLR (Pt.199) 501 @ 538 C - D. He urged the court to resolve this issue in favour of the appellants.
In reaction to the above submissions, learned counsel for the respondent submitted that the cause of action in the two suits before the Federal High Court were different and that the trial court was wrong to have relied on the judgment in Exhibit DM1 in reaching its decision. He contended that while the issue before Abutu, J. was the termination of the respondent's employment bordering on Section 44(4) of BOFIA and the threat to blacklist him, the issue in the later suit before Okeke, J. was the blacklisting of the respondent under Section 44(2)(d) of BOFIA which, in his view, is a completely different issue. He submitted that the court below was right in upholding the respondent's contention that the learned trial Judge was in error to have relied on the findings of Abutu, J. in Exhibit DM1 to the effect that the respondent was involved in illegal foreign exchange transactions when the Special Committee Report was not before him. He relied on the case of: David Itauma Vs Akpe Ime (2000) 12 NWLR (Pt.680) 156. He stoutly rejected the contention of learned counsel for the appellants that a finding of fact may qualify as a decision of the court. He posited that the evidence led in the suit before Abutu, J. could not be relied upon as evidence in the suit before the learned trial Judge, having regard to the fact that the cause of action before Okeke, J. arose after the decision of Abutu, J. upon the issuance of the letter of de-listing to the respondent by the appellants.
He submitted that learned counsel for the appellants misapplied the provisions of Section 174 (1) and (2) of the Evidence Act, as the facts and circumstances of this case and the issues before Abutu, J. were not the same and therefore could not constitute issue estoppel between the parties and the findings of Abutu, J. could not constitute evidence in the instant case. While conceding that an appellate court is usually reluctant to set aside the findings of fact made by a trial court, he submitted that the findings in the instant case were rightly set aside by the lower court, as the findings were perverse, the trial court having taken into account matters which it ought not to have taken into account. He also contended that the findings of the trial court ran counter to the evidence before it. He relied on: Yaro Vs Arewa Construction Ltd. (2007) 17 NWLR (Pt.1063) 333.
In resolving this issue, I am of the view that it is necessary to determine what is meant by the phrase "findings of fact/' Black's Law Dictionary, 8th edition defines it as:
"A determination by a judge, jury or administrative agency of a fact supported by the evidence in the record, usually presented at the trial or hearing."
This court in the case of Egbe Vs Adefarasin (1987) 1 NWLR (Pt.47) 1 @ 20 F - H gave further elucidation on the issue as follows:
"A finding is a result of deliberations of a jury or a court. It is a decision upon a question of fact reached as a result of judicial examination or investigation by a court, jury, referee, coroner, etc. It is more appropriately called a finding of fact and as the name implies it is a determination from the evidence of a case concerning facts averred by one side and denied by the other side. Findings of fact are the results of reasoning from evidentiary facts. They are conclusions drawn by the court from the facts without the application of law or exercise of legal judgment. A trial court must first find the facts or make appropriate Findings of fact on the issues in dispute before applying the relevant and applicable law. Findings of fact fall within the peculiar preserve of the trial Judge. Conclusions or inference from those facts can be drawn by any court, including appellate courts: See: Bannmax Vs Austin Motor Auto Co. Ltd. (1955) A.C. 370 at page 375; (1955) 1 All ER 326 at pp. 327/328."
See also: Fointrades Ltd. Vs Universal Association Co. Ltd. (20021 8 NWLR (Pt.770) 699: Edosa & Anor. Vs Oaiemwanre (2010) LPELR-8618 (C/A).
Thus findings of fact are made by a trial Judge after carefully reviewing the evidence before the court and conclusions or inferences can be drawn from those facts by any court. It is settled law that an appellate court is always loth to interfere with findings of fact made by a trial court unless the decision of the court is shown to be unreasonable, perverse, not supported by the evidence or where such decision is not the result of a genuine exercise of judicial discretion and has resulted in a miscarriage of justice. See: Kodilinye Vs Odu (1935) 2 WACA 336: Yesufu Vs Adama (2010) 5 NWLR (Pt.1188) 522. The law is also settled that a decision of a court of competent jurisdiction is valid and subsisting unless set aside by an appellate court. It follows therefore that a vital finding of fact upon which a judgment is predicated, which is not appealed against remains intact. It remains valid and binding on the parties. See: Kraus Thompson Org. Ltd. Vs UNICAL (2004) 9 NWLR (Pt.879) 631 @ 642: Okonkwo Vs INEC (2004) 1 NWLR (Pt.554) 242 @ 256: Amale Vs Sokoto Local Government & Ors. (2012) LPELR-7842 (SCI) Anyanwu Vs Ogunewe & Ors. (2014) LPELR-22184 (SC) @ 47 C - F.
Now, in the originating summons that led to this appeal, the respondent specifically sought an order "directing the defendant, particularly the 2nd defendant to comply with the judgment of Hon. Justice D.D. Abutu in the judgment delivered on 11th April, 2005." The judgment was annexed to the affidavit in support as Exhibit DM1. In a trial on originating summons, the averments in the affidavit in support and the exhibits annexed thereto constitute the evidence upon which the court will rely in reaching its decision. In paragraph 9 of the affidavit in support the respondent averred that there was no appeal filed against the judgment by the 1st defendant i.e. the 1st appellant herein. It is also evident that having obtained judgment in his favour, the respondent was satisfied with the judgment in all respects and did not deem it necessary to appeal against any of the findings made. Thus the judgment delivered by Abutu, 1 in suit no. FHC/L/CS/163/2003 is valid, subsisting and binding on the parties thereto.
His Lordship, Okeke, J.made some findings based on Exhibit DM1 as follows:
"On page 16 of Exhibit DM1, Honourable Justice D.D. Abutu held thus: -
The evidence on both sides, which I accept is that the plaintiff was an employee of the 1st defendant and that the plaintiff took part in the foreign exchange transactions in respect of which the 1st defendant was penalised in the sum of N293.129 million for illegal foreign exchange transactions and its dealership licence suspended indefinitely.
Exhibit 2 is the 2nd defendants query letter to the plaintiff. The plaintiff's reply to Exhibit 2 is Exhibit 7. Exhibit 9 is the minute of the Special Board Committee before which the plaintiff admittedly appeared and Exhibit 10 is the report of the committee wherein the plaintiff. Messrs Kalu and Adegboye were adjudged guilty of forex malpractices. The evidence is that notwithstanding the findings of the committee that the three officers were guilty of malpractices, the 1st defendant merely advised them to resign."
It is not in dispute that the plaintiff herein and its (sic) erstwhile employer, Equity Bank of Nigeria Limited were involved in foreign exchange transactions for which the Central Bank of Nigeria can impose sanctions. Equity Bank of Nigeria Limited (plaintiff's erstwhile employer) was penalised in the whopping sum of N293,129 million and its dealership licence suspended indefinitely. It is my humble view the plaintiff's involvement in the illegal foreign exchange is serious misconduct in relation to his duties while in the services of Equity Bank of Nigeria Ltd. It is also my view that the condonation of the plaintiff's serious misconduct in the illegal foreign exchange transactions by a fellow culprit is no bar to the Central Bank of Nigeria exercising its power to sanction the plaintiff." (Underlining supplied for emphasis)
The court below rejected the findings above on the following grounds:
a. That the learned trial Judge should not have arrived at his decision on the respondent's involvement in illegal foreign exchange transactions without looking at the Special Committee Report.
b. That in the absence of the report there was insufficient evidence upon which the court could have decided whether or not to grant the prayer to. de-blacklist him or not.
c. That the decision of Abutu, J. was not based on the issue of illegal transactions.
d. That the parties did not plead issue estoppel or res judicata.
It should be reiterated that it was the respondent who exhibited and relied upon the judgment of Abutu, J. in FHC/L/CS/163/2003 as part of his evidence in the suit, in support of his prayer for an order of the court directing the defendants to comply therewith among other reliefs. As can be seen from the excerpt of the judgment of Abutu, J. reproduced in the judgment of Okeke, J., His Lordship considered the entirety of the evidence before him, which he accepted, before arriving at the final decision made in that suit. In concluding the judgment he held thus:
"The misconduct of the plaintiff arising from the illegal foreign exchange transactions for which the plaintiff was adjudged guilty by the committee set up by the board of the 1st defendant in this case appears to have been condoned by the 1st defendant. I hold that the plaintiff validly resigned his appointment."
The decision was based on findings of fact, which have not been appealed against. The findings were referred to and relied upon by the appellants in paragraphs 5, 6 and 7 of their counter affidavit to the originating summons at pages 35 - 36 of the record wherein it was averred as follows:
"5. That further to the averments in paragraph 4 thereof, while it is true to state that the honourable Court kept within the scope of the issues before it, it is clear that after considering the evidence at the trial and the arguments of all counsel, the court further held that any bank officer who has been found guilty of misconduct in relation to his duties, can be validly blacklisted by the CBN.
6. The trial court specifically found as FACTS the following: -
(i) that the Plaintiff appeared before a Board Committee set up to investigate illegal foreign exchange transactions by Foreign Exchange Documentation Department of which he, the plaintiff, was Head;
(ii) that the said committee submitted a report which found the (three) officials, including the plaintiff, guilty of misconduct in relation to their duties;
(iii) that the trial court held the Committee's report as having adjudged the plaintiff guilty of misconduct arising from the illegal foreign exchange transactions;
(iv) that the Central Bank of Nigeria can invoke the provisions of Section 44 (2) (d) of BOFIA to "blacklist" a bank officer who has been found guilty of misconduct in relation to his duties;
(v) that the plaintiffs resignation was not voluntary but induced by his employers following the Committees report of his misconduct, thus foisting a stalemate and state of helplessness and inability of the plaintiff to retain his job and/or sustain his career any further.
7. That the plaintiff has not appealed against any of the above findings of the trial court."
Those findings are quite damning. There is no appeal against them. They remain binding on the parties until set aside by an appellate court. Both judgments are judgments of the Federal High Court. His Lordship Okeke, J., in the absence of any appeal against the judgment of Abutu, J. could not have done otherwise than adopt the findings and conclusions made therein since he was being called upon to direct the defendants to comply with it.
Section 174 (1) & (2) of the Evidence Act, 2011 provides:
174 (1) If a judgment is not pleaded by way of estoppel, it is as between the parties and privies deemed to be a relevant fact, whenever any matter, which was or might have been decided in the action in which it is given, is in issue or is deemed to be relevant to the issue in any subsequent proceeding.
(2) Such judgment is conclusive proof of the facts which it decides, or might have decided, if the party who gives evidence of it had no opportunity of pleading it as an estoppel."
Suit No. FHC/L/CS/163/2003 before Abutu, J. was predicated on the respondent's contention that having accepted his letter of resignation and paid his entitlements, which had determined the master/servant relationship between him and Equity Bank of Nig. Ltd., the bank was not entitled to. terminate his appointment. The reliefs sought in the statement of claim are reproduced in Exhibit DM1. He sought, inter alia, a declaration against the 2nd defendant (1st appellant herein) that he had not breached any of the provisions of the Banks and other Financial Institutions Act 1991 and a declaration that the 2nd defendant could not rely on the purported letter of termination dated 5th February, 2003 to blacklist him under Section 44(4) of BOFIA, having resigned his appointment on 10th October, 2002. The section provides:
"44 (4) Any person whose appointment with a bank been terminated or who has been dismissed for reasons of fraud, dishonesty or conviction for an offence involving dishonesty or fraud shall not be employed by any bank in Nigeria."
At the trial before Abutu, J, the respondent had contended that he was not aware of the reason for his disengagement, that he was not aware that the committee produced a report containing findings and recommendations and he denied being indicted by the committee. In its defence the 2nd defendant relied on Exhibit 9, the proceedings of the committee, which showed that the respondent participated in the proceedings and Exhibit 10, the report of the committee, which indicted the respondent and two other officers. After considering the evidence led by both sides the court found and held that the report showed that the respondent was guilty of serious misconduct arising from illegal foreign. exchange transactions. In order to determine the circumstances and legal effect of the respondent's resignation vis a vis the subsequent purported termination, the court had to consider the facts that gave rise to it. It found that the resignation was not voluntary. That the respondent was compelled to resign as a result of his indictment by the committee. The learned trial Judge frowned at the fact that the illegal activity was apparently condoned since the respondent was merely asked to resign. It however concluded, as stated earlier, that having accepted his resignation the defendants could no longer terminate his appointment.
The respondent contends that the issues in FHC/L/CS/163/2003 are not the same as in FHC/L/CS/205/2008 as the former was predicated on the provisions of Section 44(4) of BOFIA while the latter arose from facts that occurred after the judgment of Abutu, J. and was predicated on Section 44(2)(d) of the Act. Sections 44(1) & (2)(d) of the Act provide:
"44. (1) Every bank shall, before appointing any director or chief executive, seek and obtain the Bank's written approval for the proposed appointment.
(2) No person shall be appointed or shall remain a director, secretary or an officer of a bank who
(d) is guilty of serious misconduct in relation to his duties."
By Section 1(1) of the Act, "the Bank" (as underlined) means the Central Bank of Nigeria.
Issue estoppel arises in a subsequent suit when the issue involved in the later suit has been raised and distinctly determined in a previous suit between the same parties or their privies. The decision relied upon for the plea of estoppel must be final and the parties must be the same. See: Anwoyi Vs Sodeke (2006)13 NWLR (Pt.996) 34: Udo Vs Obot (1989) 1 NWLR (Pt.951) 59, Issue estoppel may arise where a plea of res judicata could not be established because the causes of action are not the same. See: Adedayo Vs Babalola (1995) 7 NWLR (Pt.408) 383 where this court at pages 402 H and 405 B - C held:
"Even if the objects .of the first and second actions are different, as in the instant case, the finding on a matter which came directly in issue in the first action - whether the Agbonbifa family is a ruling family for the purpose of the Elesie Chieftaincy Stool - was embodied in the earlier decision. That decision is final and conclusive in this second action which involves the parties or their privies.
A party is precluded from contending in perpetuity any precise point, which, having been once distinctively put in issue has been properly determined against him. And even if the objects of the first and second actions are different (as in this case), the finding on a matter which came directly (not collaterally or incidentally) ... in issue in the first action, provided it is embodied in a judicial decision that is final (also as in this case), is conclusive in a second action between the same parties and privies. It has been held that this principle would apply whether the point involved in the earlier decision and to which the parties are estopped, is one of law or one of mixed law and fact.
In the circumstances of this case, the judgment of Abutu, J. in FHC/L/CS/163/2003, is a final one, not appealed against. The 1st appellant and the respondent were parties to both suits. The 2nd appellant herein is a privy of the 1st appellant. The circumstances of the respondent's resignation from Equity Bank of Nigeria Limited were specifically in issue in that suit and finally determined by Abutu, J. The general rule is that a plea of estoppel must be specifically pleaded. However, it is not necessary to plead it in any particular form so long as the facts constituting estoppel are stated in such a manner as to show that the party pleading relies on it as a defence or answer. See: Alakija Vs Abdulai (1998) 6 NWLR (Pt.552) 1 (5) 15 A - B: Ezewani Vs Onwordi (1986) 4 NWLR (Pt.33) 27. Suit no. FHC/L/CS/163/2003 before Abutu, J. was initiated by way of originating summons where pleadings are not filed. However in paragraph 6 of the appellants' counter affidavit the intention to rely on issue estoppel was clearly indicated. I am of the view that even though the two suits were predica