HOT CLIMATE REFRIGERATION & AIRCONDITIONING LTD v. MINISTER OF THE FCT & ORS (2020)

HOT CLIMATE REFRIGERATION & AIRCONDITIONING LTD v. MINISTER OF THE FCT & ORS

(2020)LCN/14743(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, November 06, 2020

CA/A/502/2016

RATIO

APPEAL: RIGHT OF PARTIES TO APPEAL

The rights of parties to appeal against judgments and decisions of Courts are contained under Section 240 – 246 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
However, the provision of Section 243(1)(a) of the Constitution is what is applicable in this instant case. Section 243(1)(a) of the 1999 Constitution as amended provides as follows:
“243. Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be-
(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney General of a state to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed.” PER IDRIS, J.C.A.
PARTIES TO AN ACTION: DEFINITION AND NATURE OF AN INTERESTED PARTY

The Supreme Court per Rhodes-Vivour, JSC in ASSAMS & ORS VS. ARARUME (2015) LPELR – 40828 (SC) defined an interested party as:
“…a person who is not a party in a suit or to the decision on appeal. Any person who has interest in a case but is not a party is an interested party. See Green V. Green (1987) 2 NSCCP, 1115 Re: Madaki (1996) 7 NWLR (Pt. 459) p.153 Chukwu v. INEC (2014) 10 NWLR (Pt.1415) p. 385.”
An interested party must therefore show that the decision he proposes to appeal against is one that is against him or against his interest. The Apex Court in CHUKWU & ANOR VS. INEC & ORS (2014) – 250215 (SC) held that:

“…flowing from the community reading of Section 243(a) of the Constitution of the Federal Republic of Nigeria (1999) (as amended) and the plethora of the case law authorities on this point that only a person whose interest has been directly and not obliquely, affected by a decision that can validly seek leave to appeal as an interested party. This would not cover a person who has a general interest in the said decision to appeal against same…”
See also AKANDE VS. GENERAL ELECTRIC COMPANY & ORS (1979) LPELR-319 (SC). PER IDRIS, J.C.A.
JUDGMENT: DISTINCTION BETWEEN A JUDGMENT IN REM AND ONE IN PERSONAM

The Apex Court has in a plethora of cases including OKE & ANOR VS. ATOLOYE & 3 ORS (SUPRA) and SOSAN & ORS VS. Dr M.B. ADEMUYIWAS (1986) 3 NWLR 241 established the difference between a judgment in rem and one in personam. The Apex Court again in IKENYE DIKE & ORS VS. OBI NZEKA II & ORS (1986) LPELR-94 (SC) held as it relates to the distinction between judgment in rem and judgment in personam thus:
“It is therefore necessary to have a clear idea of the distinction between a judgment in rem and a judgment in personam. A judgment is said to be in rem when it is an adjudication pronounced upon the status of some particular thing or subject matter by a Tribunal having the jurisdiction and competence to pronounce on that status. Such a judgment is usually and invariably founded on proceedings instituted against or on something or subject matter whose status or condition is to be determined. It is thus a solemn declaration on the status of some persons or thing. It is therefore binding on all persons in so far as their interesting status of the properly or person is concern. That is why a judgment in rem is a judgment contramundum- binding on the whole world-parties and non-parties. A judgment in personam on the other hand is on an entirely different footing. It is a judgment against a particular person as distinguished from a judgment declaring the status of a person or thing. A judgment in personam will be more accurately called a judgment inter parties. A judgment in personam usually creates a personal obligation as it determines the rights of parties interse to, or in the subject matter in dispute whether, it be land or other corporeal property or a liquidated or unliquidated demand but does not affect status of either of the persons to the or the thing in dispute.”
Similarly, in G.A.R. SOSAN & ORS VS. DR M.B. ADEMUYIWAS (SUPRA) it was held:
“A judgment in a land case is sequel to an action filed not for the purpose of determining the status of the contesting parties (Plaintiff and Defendants) nor for the purpose of determining the status of land in dispute but for the purpose of determining the rights or interest of either of the Plaintiffs or the Defendants in the land the subject matter of the dispute. It simply decrees that as between the plaintiffs and the defendants then before the Court the land belongs to one party or the other.” PER IDRIS, J.C.A.
COURT: WHAT CONSTITUTES ABUSE OF COURT PROCESS

It must be noted that the law is fairly settled on what can be classified as an abuse of Court process. It entails multiplicity of suits between the same parties in regard of the same subject matter and on the same issue. Abuse of process of Court is therefore a term generally applied to a proceeding which is wanting in a bona fide and is frivolous, vexatious and oppressive. It may occur when a party improperly uses judicial process to the harassment, irritation and annoyance of his opponent and to interfere with the administration of justice. It is also the law that multiplicity of actions on the same matter constitutes an abuse of process of the Court. But this is so only where the action is between the same parties with respect to the same subject matter.
In ABUBAKAR VS. BEBEJI OIL AND ALLIED PRODUCTS LTD (2007) AFWLR (PT. 362) 1855, the Apex Court held that:
“The concept of abuse of Court or judicial process denotes a pervasion of the system by the use of a lawful procedure for the attainment of unlawful results. Abuse of judicial process manifests itself largely in the multiplicity of actions on the same subject matter between the same parties. It is not the existence of the right to institute these actions that are protested against, rather it is the manner of exercise of this right and the purpose of doing same that is abhorred. The term is generally applied to a proceeding which is lacking in bona fide, It has a tinge of malice.”

The Apex Court in the same ABUBAKAR VS. BEBEJI OIL AND ALLIED PRODUCTS LTD (SUPRA) outlined the circumstances in which abuse of Court process can arise and they include the following:
“a) Instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin that action.
b) Instituting different actions between the same parties simultaneously in different Courts even though on different ground.
c) Where two similar processes are used in respect of the exercise of the same right for example a cross appeal and a respondent notice.
d) Where an application for adjournment is sought by a party to an action to bring an application to the Court for leave to raise issues of fact already decided by Courts below.
e) Where there is no iota of law supporting a Court process or where it is premised on frivolity or recklessness. The abuse lies in the inconvenience and inequities involved in the aims and purposes of the action.”

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

HOT CLIMATE REFRIGERATION AND AIRCONDITIONING LIMITED (SUING THROUGH ITS ATTORNEY URASH ENTERPRISES LIMITED) APPELANT(S)

And

MINISTER OF THE FEDERAL CAPITAL TERRITORY 2. FEDERAL CAPITAL DEVELOPMENT AUTHORITY 3. KAFI DANTAMA AUTHORITY RESPONDENT(S)

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Appellant in this appeal, appealed on the 3rd day of June, 2016 against the decision/judgment of the High Court of the Federal Capital Territory, Abuja delivered on the 21st of day of March, 2016 by Honourable Justice S. E. Aladetoyinbo wherein the Court upon hearing the preliminary objection struck out the Appellant’s suit.

The facts of the case leading to this appeal as adduced from the pleadings and evidence tendered at the trial Court are to the effect that the Appellant commenced an action at the lower Court against the Respondents by writ of summons, claiming as follows:
a) A declaration that the property known as Plot 557 measuring 5093.14 square metres, situate at cadastral Zone AO Central Business District Abuja, with File No. MISC 1123 (New File No. MISC 52909) validly belongs to the Plaintiff, same having been lawfully and legitimately allocated/allotted to it via a Right of Occupancy dated 7th day of September, 1993 and Certificate of Occupancy dated 9th day of September, 1993.
b) A declaration that any subsequent purported allocation or re-allocation and grant of

Right of Occupancy or Certificate of Occupancy over the said Plot in favour of any other person including the 3rd Defendant notwithstanding the prior allocation in 1993 to the Plaintiff was unconstitutional, illegal, null and void and of no effect.
c) A declaration that 3rd Defendant’s entry on the Plaintiff’s Plot without it’s consent and approval is an act of trespass.
d) An order setting aside any purported revocation of the Plaintiff’s right of occupancy to the Plot, same being unconstitutional and contrary to the provisions of the Land Use Act.
e) An order setting aside any subsequent purported allocation or re-allocation and grant of statutory right of occupancy by the 1st and 2nd Defendants to any other person including the 3rd Defendant over said Plot, the same having been validly, lawfully and legitimately allocated or granted to the Plaintiff since 7th day of September 1993.
f) An Order mandating the 1st and 2nd Defendants to issue the Plaintiff the recertified Certificate of occupancy of the Plot.
g) An order directing the Defendants, their agents, privies, officers and any person howsoever described, deriving title,

instruction and authority from them to yield up vacant possession of the said Plot to the Plaintiff forthwith.
h) An Order of Perpetual injunction restraining the Defendants, their agents, privies, officers, and any person however described deriving title, instruction and authority from them from entering, trespassing or continuing to trespass and interfering with or in any way disturbing the Plaintiff’s quiet possession, occupation, use and enjoyment of the said Plot.

The writ of summons, statement of claim and supporting documents were duly served on the defendants. The 1st and 2nd Defendants filed no defence to the suit while the 3rd Defendant instead of filing a defence to the suit filed a preliminary objection praying that the Appellant’s suit at the lower Court be struck out for lack or want of jurisdiction to hear and determine same. The trial Court after entertaining arguments on the preliminary objection struck out the matter. The Appellant being dissatisfied with findings of the trial Court filed this appeal.

In the Appellant’s brief, one (1) issue was distilled for the determination of this appeal thus:
Whether the learned

trial Judge was justified striking out the case of the Appellant instead of dismissing the 3rd Respondent’s preliminary objection.

The Appellant in relation to this issue argued that the trial judge misconstrued the law when he concluded that the only option left to the Court was to strike out the Appellant’s suit. Counsel submitted that this case is not one that warrants the Court below to review the judgment in Suit No. FCT/HC/CV/219/12 as such the case of OKOYE VS. CONSTRUCTION & FURNITURE CO. LTD & ORS (1991) JELR 43056 referred to by the trial judge is inapposite.

Counsel then submitted that the trial Court fell into grave error because he unfortunately did not appreciate that there is a major difference between an action in rem and an action in personam. That had the trial judge been aware of the difference he would have appreciated that Suit No. FCT/HC/CV/219/12 was an action in personam and the judgment in the suit is a judgment in personam, binding only on the parties and their privies.

Counsel for the Appellant also submitted that he is within his rights to commence his action against the Respondents and that Suit

No. FCT/HC/CV/219/12, being an action in personam, leading to a judgment in personam, cannot be raised as res judicata against the Appellant. That the learned trial judge lost sight of the perfectly correct position of the law which he had previously stated to the effect:
“the legal right of the Plaintiff to plot 557 is still valid and subsisting notwithstanding the previous judgment delivered by Court No. 25, wherein the 3rd Defendant/Applicant was declared as the holder of the Right of Occupancy of the said plot, the plaintiff’s right to the said plot cannot be affected by the previous judgment because it was not made a party to the suit where the judgment emanated.” (See page 69 of the record lines 14 – 19).
And at page 70 of the record of appeal lines 3 – 5) where he held that:
“the previous judgment attached Exhibit KDM1 can never affect the right of the Plaintiff to Plot 557…”

Counsel argued that the option open to a person claiming title to land which had been previously adjudged in favour of someone else in a previous suit in which the person now claiming title was not a party was explained in the Supreme Court case

of SHAIBU VS BAKARE (1984) 12 S.C 187 @ 230. In this case Oputa, JSC restated the law thus:
“the judgment of Beckley, J (in this case) is a judgment personam binding only on the plaintiff/respondent and the defendant/appellant and their privies and no more. Any member of the Bakare family who is dissatisfied with the distribution was at liberty to join as a defendant and is at liberty to bring a fresh action against the plaintiff/respondent.”

Counsel for the Appellant then submitted that the Appellant could not have applied to join in Suit No. FCT/HC/CV/219/12 because as the trial judge found, the Appellant had no notice of the suit:
“The present suit filed by the Plaintiff cannot amount to abuse of Court process, because the present plaintiff was not a party to earlier Suit No. FCT/HC/CV/219/12, the plaintiff was not aware of the said suit as it was not serve with the originating processes of the said suit.” (See page 62 of the record, lines 4 – 8).

The Appellant submitted that he could not lawfully and reasonably appeal against the decision in Suit No. FCT/HC/CV/219/12 because no facts were placed before the Court in the suit

for determination and determined, affecting the Appellant. That no evidence was led for or against the Appellant in that suit and no order affecting the Appellant was made in the suit. The baseline therefore is that the Appellant has no legitimate complaint of an error committed in the determination of that suit by Justice D. Z. Senchi.

Finally, counsel submitted that the fact that the Appellant was not heard could not have been an error on the part of Hon. Justice D. Z. Senchi because, as the learned trial judge noted, the Appellant was not a party to the suit, Hon. Justice D. Z, Senchi was deceived to deliver the previous judgment. Counsel then urged the Court to resolve this lone issue in their favour.

The Respondent also formulated one issue for determination of this Appeal thus:
Whether the trial Court was right in its decision striking out the Appellant’s action based on the 3rd Respondent’s preliminary objection.

The Respondent argued regarding this issue that the trial Court’s decision to strike out the case is in conformity with the underlying principles guiding appeal by interested party in a matter that has been adjudicated

upon by a Court of competent jurisdiction. Counsel argued that had the trial Court assumed jurisdiction to hear and determine the Appellant’s suit, it would have amounted to reviewing the judgment of Hon. Justice Senchi J in Suit No. FCT/HC/CV/219/12.

Counsel argued that the trial Court was right in declining jurisdiction to entertain the matter by relying on the authority of OKOYE VS. NIGERIAN CONSTRUCTION FURNITURE CO. LIMITED (1991) 6 NWLR (PT. 199) 501 @ 532 where Akpata, JSC stated the position of law thus:
“In the view failure to join a necessary party is an irregularity which does not affect the competence or jurisdiction of the Court to adjudicate on the matter before it. However, the irregularity may lead to unfairness which may result in setting aside the judgment on appeal. Setting aside a judgment or making an order striking out the action or remitting the action for a retrial in such circumstance that will not be for lack of jurisdiction or on the basis of the judgment being a nullity. The trial Court itself is incompetent to review the judgment more so another Court of co-ordinate jurisdiction.”

Counsel for the Respondent then argued that the appropriate remedy is for the Appellant to appeal as a party interested against the previous judgment of Hon. D. Z. Senchi in Suit No. FCT/HC/CV/219/12 instead of filling a fresh action on the same subject matter.

Counsel then submitted that it is conceded that a judgment in personam binds the parties to the action unlike the judgment in rem which binds all non-parties to the action alike. However, that every rule permits some exceptions that permit a non-party that may be bound or affected by a decision of a Court is the constitutional provision of Section 243(1) (a) of the Constitution of the Federal Republic of Nigeria 1999. Counsel further argued that the dictum in OKE VS. ATOLOYE (1986) 1 NWLR (PT. 15) 241 is distinguishable from the judgment in Suit No. FCT/HC/CV/219/12 vis-a-vis the Appellant’s Suit No. FCT/HC/CV/2447/2015 as follows:
i. The parties in the previous judgment in the suit No. FCT/HC/CV/219/12 i.e. the Respondent in this appeal were not counter claiming for the title to plot 557 within Cadastral Zone AO, Central Business District, Abuja to bring it into contemplation of the above dictum especially the underlined portion.

The 3rd Respondent instituted the action against the 1st and 2nd Respondents as the custodian, trustees and Administrators of the Land in the Federal Capital Territory for and on behalf of the people as per the Land Use Act.
iii. The Court in its judgment made the following orders against the 1st and 2nd Respondent in favour of the 3rd Respondent amongst other:
a) It is hereby ordered that the Plaintiff (3rd Respondent) is the rightful owner/allottee or holder of the statutory right of occupancy over the Plot No. 557 lying, situate and being at Cadastral Zone AOO Central Area, Abuja measuring 5092.65M2 and covered by an offer of Statutory of Occupancy dated 15th February, 2010 with File No. MISC 103502.
b) An order of Injunction is hereby granted to Plaintiff restraining the defendants, either by themselves, agents, privies, assigns or whatsoever so called from interfering with or doing anything whatsoever including revocation, alienation, relocation of the Plaintiff’s right of enjoyment over Plot No. 557 lying, situate and being at Cadastral Zone AOO Central Area, Abuja.

Counsel argued that had the Court heard Suit No. FCT/HC/CV/2447/2015 and granted its reliefs without setting aside the decision in Suit No. FCT/HC/CV/219/12 how would the 1st and 2nd Respondent comply as compliance with the later judgment will amount to interfering with Plot 557. Additionally, counsel submitted that the judgment in Suit No. FCT/HC/CV/219/12 may appear as a judgment in personam but in actual fact it is a judgment in rem as it relates to the plot of land where the 1st and 2nd Respondents are custodians and administrators of the land. And that this judgment aforesaid binds and affects every person hence the only remedy an aggrieved person has is to appeal the judgment as an interested party.

The Respondent’s counsel stated that SHUAIBU VS. BAKARE (supra) is not applicable. Finally, it was argued that the appropriate remedy for the Appellant is to appeal against the subsisting judgment as a party interested and not a fresh action that will give rise to two conflicting decisions.

This case also has a cross-appeal and the cross-appellant formulated two issues for determination thus:
i) Whether, having regards to the circumstances of this case the trial Court was not in error when

it held that the Appellant/Cross Respondent’s suit No. FCT/HC/CV/2447/2015 cannot amount to abuse of Courts process because it was not a party to earlier Suit No. FCT/HC/CV/219/12. (Ground 1).
ii) Whether the findings of facts by the trial Court while considering the preliminary objection challenging the jurisdiction of the Court to hear and determine the Appellant’s/Cross Respondent’s aforesaid suit is justified, proper and does not amount to a review of the previous judgment of a Court of co-ordinate jurisdiction.

Counsel for the Cross Respondent argued that the trial Court in its judgment (at page 62 of the record) held that:
“The present suit filed by the plaintiff cannot amount to an abuse of Court process because the present plaintiff was not a party to earlier Suit No. FCT/HC/CV/219/12, the plaintiff was not aware of the said suit as it was not served with originating processes of the said suit.”

Counsel argued that the above decision should not have been the reason why the Appellant’s suit should be declared free from abuse of Court process. And that the use of judicial process for mala fide amounts to abuse of Court process.

Reference was made to the case of O.S.I.E.C. VS. NCP (2013) 9 NWLR (PT. 1360) @ 466. Additionally, counsel further submitted that the trial judge relied on ETTE VS. EDOHO (2009) 8 NWLR (PT. 1144) 601 @ 609, but from this authority it is crystal clear that abuse of Court process is not restricted or confined to cases where the parties and subject matter are the same but also where the proceedings amounts to abuse of legal procedure or improper legal process.

Counsel also submitted that example of abuse of legal process is where the circumstances of the matter are such that the proper procedure is for an aggrieved person to appeal as an interested party and instituting a fresh suit and it became an abuse when the Cross Respondent did that. Finally, counsel submitted that the trial Court would have arrived at the conclusion that the action of the Appellant/cross Respondent is an abuse of Court process had he averted his mind to UNITY BANK PLC VS. OLATUNJI (2013) 15 NWLR (PT. 1378) 503 @ 532 – 533. Counsel then urged the Court to resolve the issue in favour of the 3rd Respondent/Cross Appellant.

As it relates to issue two, the Cross-Appellant argued that the findings of the trial Court that the legal right of the Appellant/Cross Respondent was still valid and subsisting and that its fundamental right to fair hearing are issues for the substantive matter or appeal. Counsel submitted that by these findings the trial judge prejudged the substantive matter which is the respect untenable in law. Reference was made to the cases of ADEWALE VS. GOV. EKITI STATE (2007) 2 NWLR (PT. 1019) 634 and PDP VS. ABUBAKAR (2007) 3 NWLR (PT.1022) 515.

Counsel also argued that those aforesaid findings by the trial Court are very far reaching for which the justice of the case demands a proper and full blown hearing on the merits entailing the examination and cross examination of witnesses and culminating in the proper evaluation of evidence. Counsel urged the Court to resolve this issue in their favour.

The Cross Respondent on their part also formulated 2 (two) issues for the determination of the cross-appeal thus:
i) Whether the Appellant/Respondent’s suit FCT/HC/CV/2447/2015 is an abuse of Court process.
ii) Whether the Court below in the proceeding, in fact reviewed the judgment of a Court of coordinate jurisdiction.

In arguing issue one, counsel argued that the trial judge was perfectly justified when he held that:
“The present suit filed by the plaintiff cannot amount to an abuse of Court process because the present plaintiff was not a party to earlier Suit No. FCT/HC/CV/219/12, the plaintiff was not aware of the said suit as it was not served with originating processes of the said suit.”

Counsel further submitted that the Supreme Court in AG LAGOS STATE VS. AG FEDERATION (2003) 6 SCNJ 1 had made the point that non parties including persons who cannot in law be made parties to proceedings must not suffer any relief to be given against them, and that relief which when granted will affect them will not be granted. Counsel submitted that the trial judge was therefore right when he relied on EDET VS. EDOHO (2009) 8 NWLR (PT. 1144) 601 in holding that the Appellant/Cross Respondent’s suit was not an abuse of process. Additionally, that actions in personam before the suit would be held to be an abuse of process in relation to another, parties, subject matter and issues in both suits must be the same.

Counsel then submitted

that a plaintiff who decides to commence a suit without joining necessary and indispensable parties, is on a pipe-dream adventure and will only get an empty victory. Counsel then submitted that the trial Court in page 67 of the record of appeal held that:
“Despite the fact that the three defendants (in the present suit) have actual notice, constructive notice and imputed notice of the legal interest of the plaintiff in plot 557, they refused to join him during the proceedings in the previous suit, why? The three defendants conspired to obtain the judgment at the back of the plaintiff.”

Counsel then submitted that there is no appeal against the above finding and the learned trial judge proceeded to cite the decision of the Supreme Court in AWONIYI VS. REGISTERED TRUSTEES OF AMORC (2000) 10 NWLR (PT. 676) where it was held that it infringes Section 36 of the 1999 Constitution for a Court to make an order against a person who is not a party to the action and against whom no claim has been made.

Finally, counsel argued that paragraphs 4.01 – 4.10 of the 3rd Respondent/Cross Appellant’s brief are with respect misconceived. Counsel argued

that their arguments run counter to all known precedents which have established it as a firm principle that it is only when parties, issue and subject matter in a previous and subsequent suit are the same that the issue of abuse of process can arise. Counsel then submitted that the Appellant/Cross Respondent was not a party to any previous or other suit and that no issue arose in that suit concerning the Appellant.

As it relates to issue two, counsel argued that there is nothing in the decision of the Court below that amounts to sitting in judgment over the decision of any Court of concurrent jurisdiction. And that in paragraphs 5.01 – 5.06 the Respondent/Cross Appellant did not identify any instance where the Court below sat in judgment over a decision of any concurrent Court.

RESOLUTION OF THE MAIN APPEAL
The sole issue in this appeal as formulated by the Appellant again is reproduced hereunder thus:
Whether the trial Court was right in its decision striking out the Appellant’s action based on the 3rd Respondent’s preliminary objection.

The question that must be answered to deal with this issue is whether the only option

left to the Appellant was to appeal against the judgment in Suit No. FCT/HC/CV/219/12?
The Appellant was of the opinion that the trial judge was in error to have held that view as there is a difference between a judgment in rem and a judgment in personam. While the 3rd Respondent argued that had the trial Court assumed jurisdiction to hear and determine the Appellant’s suit as constituted, it would have amounted to reviewing the judgment of Hon. Justice Senchi J in Suit No. FCT/HC/CV/219/12. Additionally, the 3rd Respondent had argued that Suit No. FCT/HC/CV/219/12 may appear as a judgment in personam but in actual fact it is a judgment in rem as it relates to the 1st and 2nd Respondents as custodians and administrators of the land.
The lower Court held that the steps open to the Plaintiff in the circumstance are:
“a) To apply to the presiding Judge of the Court No. 25 FCT High Court who gave the judgment in suit no. FCT/HC/CV/219/12 to set same aside by a new suit?
b) To continue with this present suit for the determination of his right in Plot 557?
c) To appeal to Court of Appeal Abuja division to set aside the said previous judgment?”

As it relates to the three options above the trial judge then held at pages 71 – 74 of the record of appeal that:
“(a) This Court cannot refer the plaintiff to go and file another suit in the Court No. 25 that gave the previous judgment so as to set the judgment aside. The Court that gave the previous judgment has become functus officio, the previous judgment cannot be reviewed or set aside by Court No. 25 that delivered same… This Court cannot therefore order the Plaintiff to file a new suit in Court that gave the previous judgment for the purpose of setting the said judgment aside. (b) This case has to be struck out even though the plaintiff was not aware of the previous judgment in suit No. FCT/HC/CV/219/12 before it filed this suit. The reason why the suit is liable to be struck out is that the previous suit is not a nullity nor is it incomplete moreso, the Court that gave the previous judgment has jurisdiction to hear and determine and give judgment in the case. The only condition under which this Court can adjudicate on the matter is stated in the case of OKOYE V. NIGERIAN CONSTRUCTION (1991) 2 N.S.C.C Vol. 22 Pt 11 page 453

where the Supreme Court held as follows:
The conditions under which a High Court can adjudicate on the judgment of another High Court of equal jurisdiction are principally:
i. Where the judgment is obtained by fraud
ii. Where there is a serious procedural fundamental defects in the proceedings that led to the judgment and
iii. Where on the face of the record the proceedings that led to the judgment is a nullity.
None of the conditions enumerated above is present in this suit the only option left for this Court is to strike out this suit not for the purpose of the Plaintiff fling another suit rather for the Plaintiff to appeal the judgment in suit no. FCT/HC/CV/219/12 to the Court of Appeal…”
Indeed, I agree with the trial judge to the extent that one of the options available to the Appellant lies in appealing against the decision in Suit No. FCT/HC/CV/219/12 at the Court of Appeal. The rights of parties to appeal against judgments and decisions of Courts are contained under Section 240 – 246 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
However, the provision of

Section 243(1)(a) of the Constitution is what is applicable in this instant case. Section 243(1)(a) of the 1999 Constitution as amended provides as follows:
“243. Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be-
(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney General of a state to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed.”
The Supreme Court per Rhodes-Vivour, JSC in ASSAMS & ORS VS. ARARUME (2015) LPELR – 40828 (SC) defined an interested party as:
“…a person who is not a party in a suit or to the decision on appeal. Any person who has interest

in a case but is not a party is an interested party. See Green V. Green (1987) 2 NSCCP, 1115 Re: Madaki (1996) 7 NWLR (Pt. 459) p.153 Chukwu v. INEC (2014) 10 NWLR (Pt.1415) p. 385.”
An interested party must therefore show that the decision he proposes to appeal against is one that is against him or against his interest. The Apex Court in CHUKWU & ANOR VS. INEC & ORS (2014) – 250215 (SC) held that:

“…flowing from the community reading of Section 243(a) of the Constitution of the Federal Republic of Nigeria (1999) (as amended) and the plethora of the case law authorities on this point that only a person whose interest has been directly and not obliquely, affected by a decision that can validly seek leave to appeal as an interested party. This would not cover a person who has a general interest in the said decision to appeal against same…”
See also AKANDE VS. GENERAL ELECTRIC COMPANY & ORS (1979) LPELR-319 (SC).
From the facts of the case before me and from the interpretation of Section 243(1)(a) of the 1999 Constitution (as amended) regarding who an interested party is, it can be deciphered that the

Appellant is in fact an interested party in Suit No. FCT/HC/CV/219/12 and has the option to appeal. This is because Appellant claims that the land declared to be for the 3rd Respondent is actually his land, he therefore clearly has an interest in the case. However, it must be mentioned that an action such as in the instant case would warrant evidence to be adduced in order to establish the title to the land in question. This is best done at the trial Court and not at the Appellate Court.
The appeal option is therefore available to the Appellant. I however do not agree that appealing is the only option available to the Appellant. Now, the trial judge gave an option for the Appellant to continue with the present suit for the determination of his right in Plot 557, but he dismissed that notion in the same breath. The trial Court’s reason for dismissing this option was that the judgment in Suit No. FCT/HC/CV/219/12 was not a nullity or incompetent and that the Court which gave the previous judgment had jurisdiction to hear and determine the case. The Appellant however alleged that had the trial judge averted his mind to the fact that there is a difference

between an action in rem and an action in personam he would not have erred. And that had the trial judge averted his mind to it he would have appreciated that Suit No. FCT/HC/CV/219/12 was an action in personam binding only on the parties to the suit and their privies.
The Appellant then relied on OKE & ANOR VS. ATOLOYE & 3 ORS (1986) 1 (PT. 15) 241 where the Supreme Court held that:
“A judgment in rem is an adjudication pronounced upon the status of a particular subject matter by a Tribunal having competent authority for that purpose. It is founded on proceedings instituted to determine the status of a particular subject matter. A declaration by the Court that Shugaba Abdulrahman is a Nigerian citizen (a decree as to nationality) is a judgment in rem: see (1981) 2 N.C.L.R. 459. So is a decree of Divorce or a decree of Legitimacy. These decrees as to status are binding on all the world, parties as well as non-parties. They are contra mundum, A judgment in personam is a judgment inter partes. It is really a judgment against persons who are parties or privies to the particular proceedings as distinguished from a judgment against

“a thing” or “a right” or ‘Status”. In a land case, the judgment is usually for the plaintiffs or for the Defendants, it is never a judgment against the land itself. That is why there can be several land cases in respect of the same piece of land inspite of existing judgments pronouncing that as between the parties then before the Court, the land belongs to either the Plaintiffs or the Defendants; and that is also why in a land case parties can plead all sort of estoppel, because a judgment in personam is necessarily a personal obligation binding on the parties or their privies… I agree with Dosunmu, J.C.A. that judgments for declaration of title or for possession are merely judgments in personam and not judgments in rem.”
I am inclined to agree with the arguments of the Appellant. The Apex Court has in a plethora of cases including OKE & ANOR VS. ATOLOYE & 3 ORS (SUPRA) and SOSAN & ORS VS. Dr M.B. ADEMUYIWAS (1986) 3 NWLR 241 established the difference between a judgment in rem and one in personam. The Apex Court again in IKENYE DIKE & ORS VS. OBI NZEKA II & ORS (1986) LPELR-94 (SC) held as it relates to the distinction

between judgment in rem and judgment in personam thus:
“It is therefore necessary to have a clear idea of the distinction between a judgment in rem and a judgment in personam. A judgment is said to be in rem when it is an adjudication pronounced upon the status of some particular thing or subject matter by a Tribunal having the jurisdiction and competence to pronounce on that status. Such a judgment is usually and invariably founded on proceedings instituted against or on something or subject matter whose status or condition is to be determined. It is thus a solemn declaration on the status of some persons or thing. It is therefore binding on all persons in so far as their interesting status of the properly or person is concern. That is why a judgment in rem is a judgment contramundum- binding on the whole world-parties and non-parties. A judgment in personam on the other hand is on an entirely different footing. It is a judgment against a particular person as distinguished from a judgment declaring the status of a person or thing. A judgment in personam will be more accurately called a judgment inter parties. A judgment in personam usually creates a

personal obligation as it determines the rights of parties interse to, or in the subject matter in dispute whether, it be land or other corporeal property or a liquidated or unliquidated demand but does not affect status of either of the persons to the or the thing in dispute.”
Similarly, in G.A.R. SOSAN & ORS VS. DR M.B. ADEMUYIWAS (SUPRA) it was held:
“A judgment in a land case is sequel to an action filed not for the purpose of determining the status of the contesting parties (Plaintiff and Defendants) nor for the purpose of determining the status of land in dispute but for the purpose of determining the rights or interest of either of the Plaintiffs or the Defendants in the land the subject matter of the dispute. It simply decrees that as between the plaintiffs and the defendants then before the Court the land belongs to one party or the other.”
The above situation though not the same as the case before the trial Court in Suit Not FCT/HC/CV/219/12 is still applicable as the 3rd Respondent sought a declaration of land he claimed was revoked by the 1st and 2nd Respondents. The judgment in this case only affects the

ownership of the land. Clearly the decision in Suit No. FCT/HC/CV/219/12 is a judgment in personam which binds only the parties. This means that the Appellant can bring another suit to establish title against the same land as the decision is one binding only the two parties and not the status of the land or the rest of the world.
Additionally, in SHAIBU VS. BAKARE (1984) 12 SC 187, the Supreme Court came to the conclusion that a judgment for declaration of title is not a judgment in rem… as a decision inter parties, it operates as an estoppel, in favour of, and against, parties and privies only, not third parties or strangers. It unquestionably is not the general rule of law that a judgment obtained by B, is conclusive in an action by B against C. On the contrary, the rule of law is otherwise – a judgment inter parties is conclusive only between the parties and those claiming under them. The case above is not distinguishable from Suit No. FCT/HC/CV/219/12 as the 3rd Respondent sought to claim. It in fact gives aid to the Appellant’s argument that he may institute a fresh suit for the declaration of his title as he has done in the instant suit.

From the foregoing, I am of the firm opinion that the Appellant’s arguments are right. I therefore resolve this issue in favour of the Appellant against the Respondent.

This Appeal is upheld and parties are directed to go back to the trial Court and for a retrial of the case.
CROSS APPEAL
Upon reading and thoroughly digesting the processes filed by all the parties to this cross appeal, I shall adopt the issues for determination distilled by the Cross-Appellant. These issues are reproduced hereunder thus:
i) Whether, having regards to the circumstances of this case, the trial Court was not in error when it held that the Appellant/Cross-Respondent’s Suit No. FCT/HC/CV/2447/2015 cannot amount to abuse of Courts process because it was not a party to earlier Suit No. FCT/HC/CV/219/12.
ii) Whether the findings of facts by the trial Court while considering the preliminary objection challenging the jurisdiction of the Court to hear and determine the Appellant’s/Cross Respondent’s aforesaid suit is justified, proper and does not amount to a review of the previous judgment of a Court of co-ordinate jurisdiction:

ISSUE ONE
As it relates to whether suit No. FCT/HC/CV/2447/2015 filed by the Appellant is an abuse of Court process, the trial Court while citing ETTE VS. EDOHO (2009) 8 NWLR 1144 PG, 601 held that:
“the present suit filed by the Plaintiff cannot amount to abuse of Court process, because the present plaintiff was not a party to earlier Suit No. FCT/HC/CV/2447/2015, the plaintiff was not aware of the said suit as it was not served with the originating processes of the said suit.”

The Cross-Appellant has maintained that non-joinder of the Cross-Respondent should not be the reason why the Cross- Respondent’s suit should be declared free from abuse of Court process. And that the use or judicial malafide amounts to abuse of Court process. While the Cross-Respondent argued that only when parties, issues, subject matter in a previous and subsequent suit are the same that the issue can amount to an abuse of process.

It must be noted that the law is fairly settled on what can be classified as an abuse of Court process. It entails multiplicity of suits between the same parties in regard of the same subject matter and on the same issue. Abuse of process of Court is therefore

a term generally applied to a proceeding which is wanting in a bona fide and is frivolous, vexatious and oppressive. It may occur when a party improperly uses judicial process to the harassment, irritation and annoyance of his opponent and to interfere with the administration of justice. It is also the law that multiplicity of actions on the same matter constitutes an abuse of process of the Court. But this is so only where the action is between the same parties with respect to the same subject matter.
In ABUBAKAR VS. BEBEJI OIL AND ALLIED PRODUCTS LTD (2007) AFWLR (PT. 362) 1855, the Apex Court held that:
“The concept of abuse of Court or judicial process denotes a pervasion of the system by the use of a lawful procedure for the attainment of unlawful results. Abuse of judicial process manifests itself largely in the multiplicity of actions on the same subject matter between the same parties. It is not the existence of the right to institute these actions that are protested against, rather it is the manner of exercise of this right and the purpose of doing same that is abhorred. The term is generally applied to a proceeding which is lacking in bona fide, It has a tinge of malice.”

Now, what a Court is required to do when faced with the question of whether a suit constitutes an abuse of Court process is to look at the processes filed in the two actions and see whether they are between the same parties, on the same subject matter and on same or very similar issues. I have looked at both suits which in all honesty the suits are on the same subject matter. By the same subject matter, I mean the land. However, even the issues are not entirely the same as one case has to do with revocation of land by the 1st and 2nd Respondents while the other has to do with reallocation by the 1st and 2nd Respondents. Though both the Appellant and the 3rd Respondent ultimately all want a declaration of title for the same piece of land.
Now, the next question to be answered is whether the subject matter therein is between same parties? From the record of appeal, it can be gleaned that the Appellant was not a party to Suit No. FCT/HC/CV/219/12. More importantly, the Appellant’s suit does not fall within the five circumstances highlighted in ABUBAKAR VS. BEBEJI OIL AND ALLIED PRODUCTS LTD (SUPRA). Additionally, upon reviewing the Appellants case, I find that the elements

of malice, want of bona fide, frivolity, vexation and oppression are lacking. This is a case of one party proving better title to land and given that land cases are action in personam, the Appellant has every right to institute another action. This case is clearly not one which would be termed an abuse of Court process.

I therefore resolve this issue in favour of the Cross- Respondent against the Cross-Appellant.

ISSUE TWO
It is indeed settled law backed by a plethora of authorises from the Apex Court that a Court must settle a preliminary objection before it goes into the substantive matter. The Cross Appellant has argued that the trial Court’s findings that the legal right of the Cross Respondent was still valid and subsisting and its fundamental rights to fair hearing are issues for the substantive matter or the appeal. In order to ascertain if the Cross Respondent’s assertions are valid we must look at the questions posed and answered by the trial judge. The questions the trial judge formulated and answered include:
a) Whether the present suit by the Plaintiff constitute abuse of Court process as stated by the 3rd Defendant?<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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b) What is the duty of this Court in this application where the 3rd Defendant exhibited pervious judgment in Suit No. FCT/HC/CV/219/12 as res judicata?
c) Whether the present plaintiff should have been made a party in the previous suit No, FCT/HC/CV/219/12 where judgment was given in favour of the 3rd Defendant?
d) Why was the plaintiff not made a party in the suit No. FCT/HC/CV/219/12?
e) What is the effect of not joining the Plaintiff in the previous suit No. FCT/HC/CV/219/12 of which judgment was given in favour of the 3rd Defendant?
f) What is the effect of the previous judgment in suit No. FCT/HC/CV/219/12 on the legal rights of the plaintiff to plot 557 Cadastral Zone AO Central Area District Abuja FCT?
g) What is the step open to the plaintiff in the circumstance?

Now, I have examined and dissected the questions reproduced above and judgment of the trial judge and I have found that all the questions the trial judge posed and answered were in fact to aid him in coming to the conclusion of whether the case was an abuse of Court and should be struck out. None of the questions amounted to reviewing the decision in Suit

No. FCT/HC/CV/219/12. Moreover, I have already found that the trial judge was wrong in striking out the case as such this issue goes to no moment.
I resolve this issue in favour of the Cross Respondent.

Consequently, this appeal is upheld and I order that the case be sent back to the trial Court to be heard on its merits.

STEPHEN JONAH ADAH, J.C.A.: I was availed a draft copy of the judgment just delivered by my learned brother, Mohammed Baba Idris, JCA.

I agree with his reasoning and conclusion that the learned trial judge was wrong in striking out the case. This appeal therefore has merit. I too allow the appeal and I order that the case be sent back to the trial Court to be heard on its merits by another judge of the Court.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege of reading the draft of the lead judgment delivered by my learned brother, Mohammed Baba Idris, JCA.

I agree with the reasoning and conclusion reached therein. I abide by the orders made therein and make no order as to costs.

Appearances:

APOTUN, ESQ., with him, D. EBIZIMOH, ESQ. For Appellant(s)

E. TAIWO, SAN, with him, E. E. TAKUM, ESQ, O. OWEH, ESQ. and F. ADEPOJU, ESQ. for 3rd Respondent For Respondent(s)