Litigaship Series

Litigaship Series Summary 2020 Week 6

Where an issue is raised in the course of the entire hearing and determination of a suit after which a final judgment is delivered, all subsequent parties are precluded from bringing up such issue in a subsequent suit before any competent Court of law. This preclusion is in the form of an “Estoppel” while this legal situation is legally referred to as Issue Estoppel. Issue Estoppel can be raised as a defence by an appropriate party.

This was the crux of the decision in Ebba & Ors. v. Ogodo & Ors. (2000) LPELR-983(SC). In this case, the Supreme Court distilled three (3) salient conditions for a plea/defence of Issue Estoppel to apply, viz:

  1. The same question must be of decision in both proceedings (which means that the question for decision in the current suit must have been decided in the earlier proceeding);
  2. The decision relied upon to support the plea of issue estoppel must be final; and
  3. The parties must be the same (which means that parties involved in both proceedings must be the same, per se or by their privies)

See also, the cases of:
Adebayo v. Babalola (1995) 7 NWLR (pt.408) 383; Fadiora & Anor v. Gbadebo & Anor. (1978) 3 SC 219

As a general rule, illegal contracts are, as the name implies, invalid and unenforceable. A party seeking to enforce an illegal contract will be precluded from so doing. This is basically reference to the Latin maxim, lex non cogit ad impossibilia, meaning “the law does not compel the doing of impossibilities”. It is generally impossible for the law to lend its hand to the protection of illegalities.

However, some situations pertaining to illegal contracts have moved the Courts to make a very important distinction. This distinction is between a contract illegal as formed and a contract illegal as performed. Thus, in Dunalin Investment Limited v. BGL Plc. & First Inland Bank (2016) 18 NWLR (Pt. 1544) 262 at 317, the Court distinguished both situations as follows:

“There is distinction between a contract that is illegal as formed and a contract which is illegal or could be illegal as performed. In the first case, where a contract is illegal as formed, the contract is absolutely void and no person can claim any right or remedy whatsoever under it. But where a contract is merely illegal as performed, only the party who knowingly or willfully performs it in an illegal manner suffers the penalty of being denied any right or remedy under the contract. The innocent party is entitled to all the rights and remedies under the contracts.”

In conclusion, not all contracts are unenforceable due to the presence of an illegality. Circumspection is required in making this crucial distinction for the purpose of properly enforcing a right deriving from a reasonable cause of action.

Edited by:
Olukolade O. Ehinmosan

About the Editor
Olukolade is the Editor-in-Chief of Law Axis 3600 and the Co-Team Lead of Litigaship Series, the Dispute Resolution Editorial Segment of Law Axis. He is an Associate in the dispute resolution department of S.P.A. Ajibade & Co. Olukolade and a freelance legal advisor at AfriArtisans Limited. He offers competent advisory services and legal content in diverse areas including corporate and business formation, deal and transaction, football law, taxation and intellectual property.

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