PAPERSACK (NIGERIA) LTD v. ALHAJI J.A. ODUTOLA & ANOR.
(2010)LCN/3638(CA)
In The Court of Appeal of Nigeria
On Friday, the 19th day of March, 2010
CA/L/329/02
RATIO
COURT: WHAT CONSTITUTES ABUSE OF COURT PROCESS
“What constitutes abuse of process has been most thoroughly articulated by NikiTobi JSC in Ntuks vs. NPA (2007) 13 NWLR (Pt.1051) 392 at 419-420 thus:-
ABUSE OF PROCESS
“Abuse of process generally means that a party in litigation takes a most irregular, unusual and precipitate action in the judicial process for the sake of action qua litigation, merely to waste valuable litigation time. It is an action which is one (or more) too many; an action which could be avoided by the party without doing any harm to the matter in dispute. The process of the court is used ma la fide to overreach the adversary to the direct annoyance to the court. The court process is initiated with malice or in some premeditated or organized vendetta, aimed at frustrating either the quick disposal of the matter or the abatement of the matter for no good course. The court process could also be said to be abused where there is no iota of law supporting it. In other words, the court process is premised or founded on frivolity or recklessness.” PER R. C. AGBO, J.C.A.
ACTION: EFFECT OF FAILURE TO FOLLOW A PROCEDURE FOR COMMENCEMENT OF AN ACTION
The position of the law is that where a statute provides for a procedure for the commencement of an action, failure to follow that procedure renders any suit commenced other than in the procedure incompetent. See Agip Nigeria Ltd vs. Agip Petroli International (2010) 5 NWLR (pHS7) 348; PER R. C. AGBO, J.C.A.
Justice
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
Justice
PAPERSACK (NIGERIA) LTDAppellant(s)
AND
ALHAJI J.A. ODUTOLA
2. J. A. ODUTOLA PROPERTY DEVELOPMENT AND INVESTMENT CO. LTDRespondent(s)
R. C. AGBO, J.C.A. (Delivering the Leading Judgment): The respondents in this appeal by a writ of summons dated 26th October, 1994 instituted Suit No. LD/4831/94 against the appellant claiming N5 million general damages for trespass committed and still being committed by the defendant on the plaintiff’s land known as Plot 44 Block (d) Eric Moore Road, Iganmu industrial Estate Lagos. They also claimed perpetual injunction restraining the defendant from further trespassing on the said plaintiff’s property. The parties exchanged pleadings. The appellant thereafter in a motion on notice dated 28th February 2000 prayed the trial High Court as follows:-
“An order dismissing this action for lack of jurisdiction in this honourable court to entertain or determine the reliefs claimed by the plaintiff herein.”
The grounds upon which the above prayer was sought were:-
“(i) The plaintiff instituted this action against the defendant not withstanding an earlier action in Suit No. Ld/2209/93 instituted by the said plaintiff against the same defendant based on the same subject matter as the action herein;
(ii) The reliefs and the present action could have been adequately accommodated in Suit No. LD/605/99.
(iii) The instant action of the plaintiff is a gross abuse of the process of this Honourable Court.
(iv) The suit is filed by the plaintiff against the defendant in bad faith.”
In a considered ruling the trial court dismissed this application. This appeal is against that dismissal.
The appellant filed two grounds of appeal from which it distilled two issues for determination in its appellant’s brief of argument. The issues distilled are:-
“1. Whether the court below erred in law in dismissing the defendant/appellant’s application having held that in both actions the parties and the subject matter were one and the same?
2. Whether the court below misdirected itself in considering the doctrine of res judicata in reaching its decision given the fact that the sole ground relied upon by the defendant/appellant in its application was gross abuse of process?”
On the other hand the respondents distilled a sole issue for determination which is:-
“Is the court below not right in law in dismissing the defendant/appellant’s application?”
In arguing the appeal, the appellant sought for and was granted leave to lead further evidence. It however decided later not to. In its brief of argument the appellant argued that the respondent at the time they filed their suit the subject matter of this appeal, they already had in court Suit No. LD/2209/93 claiming possession of the same property the subject matter of Suit No. LD/4831/94 and that the respondents cannot maintain an action for possession and damages for trespass against the same person in relation to the same property. The appellant relied on Tijani vs. Akinwumi (1990) 1 NWLR (pt.125) 237 and Akano vs. Okunnade (1978) 3 SC 129. They argued further that an abuse of process occurs when claims in different actions based on the same facts between the same parties are filed in different courts in respect of the same right and subject matter. They relied on Ukachukwu vs Uba (2005) 18 NWLR (pt 956) 1. Appellant’s counsel finally argued that the later suit was contrived mala fide to harass the appellant and to interfere improperly in the administration of Justice by seeking to obtain two courts proprietary/ownership rights on the same property. It relied on Saraki vs. Kotoye (1992) 9 NWLR (pt. 264) 156 and African Renaissance Corporation vs. JDP Construction Nigeria Ltd (2003) 13 NLWR (pt 838) 609. The respondents on the other hand argued that the two suits are fundamentally different claims in respect of different causes of action and that two suits cannot conveniently be taken together. The respondents are right. The application is founded on abuse of process. The power of the court to ward off the abuse of its processes is founded on its inherent powers which it exercises to maintain the sanctity of its processes and dignity. “What constitutes abuse of process has been most thoroughly articulated by NikiTobi JSC in Ntuks vs. NPA (2007) 13 NWLR (Pt.1051) 392 at 419-420 thus:-
ABUSE OF PROCESS
“Abuse of process generally means that a party in litigation takes a most irregular, unusual and precipitate action in the judicial process for the sake of action qua litigation, merely to waste valuable litigation time. It is an action which is one (or more) too many; an action which could be avoided by the party without doing any harm to the matter in dispute. The process of the court is used ma la fide to overreach the adversary to the direct annoyance to the court. The court process is initiated with malice or in some premeditated or organized vendetta, aimed at frustrating either the quick disposal of the matter or the abatement of the matter for no good course. The court process could also be said to be abused where there is no iota of law supporting it. In other words, the court process is premised or founded on frivolity or recklessness.”
In the instant case the respondents has taken out Suit No. LD/2209/93 against the appellant for recovery of premises, a suit brought pursuant to the Recovery of Premises Law. During the pendency of that suit, the respondents claimed that on 8th and 9th December 1993 servants of the appellant demolished its fence at No.44 Eric Moore Road. As a result they instituted Suit No. LD/4831/94. Both the holding over and the damage to the fence constitute distinct causes of action for which the appellants are entitled to go to court. The appellant’s argument that because both suits are in trespass the appellant cannot sue for the different acts of trespass hold no water. The appellant from its statement of defence is not challenging the proprietary right of the respondents to No. 44 Eric Moore Street. The suit the subject matter of this appeal is in relation to a physical structure, a fence, constructed by the respondents which they claim was destroyed by the appellant’s agents. The two suits may be claims in trespass between the same parties over the same property but totally different. Suggesting that the respondents have to choose between one and the other has no basis in law. The respondent has argued that the two suits cannot be conveniently taken together. We had cause to ask the parties to address us on the effect of the provisions of Recovery of Premises Law Cap 118 Laws of Lagos State 1973, the extant law in Lagos State in relation to Suit No. LD/2209/93. The position of the law is that where a statute provides for a procedure for the commencement of an action, failure to follow that procedure renders any suit commenced other than in the procedure incompetent. See Agip Nigeria Ltd vs. Agip Petroli International (2010) 5 NWLR (pHS7) 348; S. 10(1) of the Recovery of Premises Law Cap 118 Laws of Lagos State 1973 which is the extant law for actions for recovery of premises in relation to commercial property in Lagos State makes special provisions for commencing recovery of premises suits. The special provision is for the recovery of premises, arrears of rent and mesne profits. It cannot accommodate any other claims. In a similar suit in Oku vs. Awana (1961) 1 All NLR 107 at 108 De lestang C. J. had this to say:-
“The Recovery of Premises Ordinance provides a special procedure for the recovery of possession of premises; it provides for claims for arrears of rent and mesne profits but it does not contemplate the joinder of any claim for damages.” It is clear from the above that the two suits cannot be conveniently taken together.
This appeal fails and it is hereby dismissed N30,000.00 costs to the respondents.
ADZIRA GANA MSHELIA, J.C.A.: I had the opportunity of reading in draft the judgment of my learned brother, Agbo, JCA, just delivered. I subscribe to the reasons given by him and hereby dismiss the appeal for lack of merit. There will be N30, 000.00 costs to the respondents.
ADAMU JAURO, J.C.A.: I have been privileged before today to read in draft the judgment just delivered by my learned brother, Agbo, JCA. I am in agreement with the reasoning and conclusions contained therein, which I also adopt as mine.
For the reasons adumbrated in the lead judgment, I also hold that the appeal has no merit and must therefore be dismissed.
The appeal is hereby dismissed by me and I abide by the order as to costs.
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Appearances
AYODELE AKINTUNDE with him MISS U. IJOMAFor Appellant
AND
G. G. ADAOTANFor Respondent
