MR. EMMANUEL OLUMUYIWA AKINWALE V. MRS. BOSEDE OLAOGUN AKINWALE
(2010)LCN/3705(CA)
In The Court of Appeal of Nigeria
On Thursday, the 15th day of April, 2010
CA/L/251/05
RATIO
COURT: MEANING OF ABUSE OF COURT PROCESS
In the case of C.B.N. v Ahmed (2001) 11 NWLR(Pt.724) p.369, their Lordships of the apex court at page 408 had this to say, on what is meant by the terminology an abuse of process of court, wherein Ogundare JSC(of blessed memory) had this to say as the definition:-
“It simply means that the process of the court has not been used bona fide and properly. In Amaefule v The State (1988) 2 NWLR (Pt.75) 156 at 177, Oputa JSC defined the expression ‘abuse of process of the court’ thus:
“Abuse of process of the court is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. abuse of process can also mean abuse of legal procedure or improper use of legal process.” PER CLARA BATA OGUNBIYI, J.C.A.
COURT: POWER OF THE COURT WHERE A PROCEEDING IS AN ABUSE OF PROCESS
It is also trite law that once a court is satisfied that any proceeding before it is an abuse of process, it has the power and duty to dismiss it. The court therefore has a duty in such a situation to interfere to stop an abuse of its process. See the case of Aruba v Aiyeleru under reference supra and Okafor v Attorney General of Anambra State (1991) 6 NWLR (Pt.200) 659. PER CLARA BATA OGUNBIYI, J.C.A.
COURT: WHEN IS A COURT SAID TO BE FUNCTUS OFFICIO
Furthermore and as rightly concluded by the lower court, by the very nature of the two applications, the learned trial judge had certainly also become functus officio of the case and cannot sit on appeal on his own decision. See the case of Olowu v Abolore (1993) 5 NWLR (Pt.293) p.255 at 270-271 wherein the apex court held thus and said:-“It is well settled, and it is unnecessary citing of decided cases that after finally deciding a matter before it, the Court of Appeal becomes functus officio, and lacks jurisdiction to deal with the matter. This is essentially because the court cannot sit on appeal on its own decisions, having not been vested with any power so to do. The constitutional and statutory jurisdiction of the Court of Appeal is to hear appeals from the lower court. It cannot hear appeals from its own decisions. Thus having finally decided a case before it, becomes functus officio as to that case.”
Tobi JCA (as he then was) in his contribution in the case of Megwalu v Megwalu (1996) 2 NWLR (Pt.428) p.104 also had the following to say at page 120:-
“It is elementary law that once a court of law delivers judgment or ruling it becomes functus officio and the only remedy available to an aggrieved party is to proceed on appeal, unless the judgment or ruling is that of the Supreme Court, in which case, the party has no further right of appeal.” PER CLARA BATA OGUNBIYI, J.C.A.
JUSTICES
CLARA BATA OGUNBIYI 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
MR. EMMANUEL OLUMUYIWA AKINWALE Appellant(s)
AND
MRS. BOSEDE OLAOGUN AKINWALE Respondent(s)
CLARA BATA OGUNBIYI, J.C.A. (Delivering the Leading Judgment): The appeal at hand is against the Ruling of the Lagos High Court, presided over by Honourable Justice Adefope Okojie dated 17th November, 2004 wherein he dismissed the applicant’s application dated 23rd March, 2004 on the ground that the court is funtus officio and that the only remedy to the applicant, if aggrieved is to appeal against his ruling of 5th November, 2002.
The brief facts of this case was that the appellant by his motion dated 23rd March, 2004 sought to set aside the order of writ of attachment and sale of his immorable property situate at 34, now 42, Adeniyi Street Alakuko, Lagos State dated 16th March, 1999 on the ground of fraud and gross misrepresentation of facts in the way and manner the order itself was obtained, and in the said sale of the property. For the comprehensive understanding of this case, regard must be had to the historical background of same that gave rise to the state of the appeal now before us. The relevance of going down the memory lane is therefore very significant.
By a motion on notice dated 10th December, 1997 at page 19 of the record of appeal, the present respondent before us who was the plaintiff/applicant at the lower court sought for an;
‘order for writ of attachment and sale to be issued Against the IMMOVABLE PROPERTY of the DEFENDANT/RESPONDENT in this suit situate and being at No. 34 Alhaji Hammed Adeniyi Street Alakuko, Lagos State for the purpose of recovering the sum of N351,450.00 being debt owed the plaintiff together with 5% per annum from February 1994, until the sum is fully liquidate by the defendant’.
The said application was supported by an affidavit of 12 paragraphs and against which the appellant at hand as the respondent filed an 11 paragraphs counter affidavit at page 24 of the record. The lower court on the 16th March, 1999, and after having heard the applicant’s learned counsel and in the absence of the defendant who was on notice but unrepresented, made the following order and said thus at page 23 of the record of appeal:
“THAT an order for writ of attachment and sale to be issued against the immovable property of Respondent/Judgment Debtor situate and being at No. 34 Alhaji Hammed Adeniyi Street, Alakuko, Lagos State for the purpose of recovering the judgment debt of N351,450.00 with interest of 5% per annum from February 1994 until the date of sale;
THAT any sum realized at the sale in excess of this Judgment sum shall immediately be paid to the Defendant”.
Consequent to the order of attachment and sale made by the lower court, the appellant filed a motion on notice dated 30th day of May, 2001 and sought for the following seven reliefs as shown at page 47 of the record of appeal:
“1. AN ORDER SETTING ASIDE the EX-PARTE ORDER obtained by the Plaintiff/Respondent and the second Respondent against the Defendant/Applicant on 9th April, 2001.
2. AN ORDER SETTING ASIDE THE EXECUTION of the said order and/or judgment pending the determination of this motion.
3. AN ORDER SETTING ASIDE the purported SALE of The Applicant’s property at 42, Adeniyi Street, Alakuko, Lagos State to the second Respondent.
4. AN ORDER IN ALTERNATIVE to prayer 3 that the purported sale of the Applicant’s property worth more than Five Million Naira was INEQUITABLY sold for One Million Naira.
5. AN ORDER IN ALTERNATIVE also that the property be VALUED by a Quantity Surveyor agreed by both parties to determine the correct and reasonable price for the property. Thereafter the difference paid to the Applicant and/or the Applicant be at liberty to liquidate the judgment debt so that the Purchaser/Respondent can collect back his purchase amount.
6. AN ORDER RESTORING the Applicant back in possession forthwith and that STATUS QUO be maintained pending the determination of this motion.
7. And for such order or further orders as this Honourable court may deem fit to make in the circumstances.”
By its ruling delivered on the 5th November, 2002 which is contained at pages 111 – 123 of the record of appeal, the said application was refused on the grounds inter alia that the judgment debtor’s application challenging the sale should have been filed within 21 days as stipulated in S.47 of the Sheriffs and Civil Process Act Cap. 407 Laws of Lagos State of Nigeria 1994. It is pertinent to mention that there is no appeal against the said ruling. Rather, the appellant by another application dated and filed on the 23rd March, 2004 and evidenced at pages 140 – 141 of the record sought for the following relief:
“AN ORDER of this Honourable Court setting aside the order for WRIT OF ATTACHMENT AND SALE of the Immovable Property of the Defendant/Applicant/Judgment Debtor situate at 34, now 42 Adeniji Street, Alakuko, Lagos State, dated 16/3/1999 on the ground of FRAUD and GROSS MISREPRESENTATION of facts in the way and manner the order itself was obtained and in the purported sale of the property.
PARTICULARS OF FRAUD
(i) The Plaintiff willfully and fraudulently deposed To an affidavit dated 10th December 1997 paragraph 7 of which says there is no movable Property of the defendant.
(ii) FORM 38 dated 9/8/1999 for writ of attachment And sale against immovable property and the one for Goods/Chattels dated 14/5/2001 were Fraudulently issued and smack of dishonesty.
(iii) That a Certified True Copy of an order made Pursuant to a Motion-Ex-parte dated 9/4/2001 Contains irreconcilable, defective and questionable dates. The said C.T.C. contains (1) Motion and Affidavit by one Olorunshola Bamiyo dated 23/4/2001 but also irregularly contained a dated 12/4/2001 whereas the order is dated 9/4/2001.
(iv) A process left with the Defendant/Respondent i.e. Defendant/Applicant herein purportedly directing him that his MOVABLE property has been attached contains two different addresses 5, Awe Crescent, Shomolu and 42, Adeniji Street, Alakuko, Lagos. The two forms (Recovery of Premises) show clear irreconcilable, irregular and fraudulent assertions;these are:-
(a) Form No. 2432 dated 26/4/2001.
(b) Form No. 2485 dated 15/11/2002.
AND any further order or orders as this Honourable Court may deem fit to make in the circumstances.”
The said motion is supported by an affidavit of 20 paragraphs. In its ruling on the application at pages 220 – 224 of the record, the lower court on the 17th November, 2004 at pages 224 had the following to say:-
“The present application, I find, is substantially the same as the former one, which this court had dismissed. The grounds relied upon in the affidavit in support of both applications are also substantially the same.
Rearguing the former application by filing the present one, albeit by a different counsel, I hold is an abuse of the court’s process. See the case of CBN v Ahmed (2001) 11 NWLR (Part 724), p.369 (SC).
This court, I further hold, cannot review a decision it has made as it would otherwise be sitting as an appeal court over its own decision.
This court is functus officio. The only remedy to the purchaser, if aggrieved, is to appeal against my ruling of 5/11/02. I thus dismiss the Judgment Debtor’s Application, a similar application having been decided by this court.”
Being dissatisfied with the decision of the court made on the 17th November, 2004, the appellant filed a notice of appeal on the 1st December, 2004 which was also dated the same day and containing seven grounds of appeal. With the leave of this court sought and obtained on the 27th January, 2009, the appellant was granted 14 days within which to file his amended brief dated 30th September, 2005. The said amended brief was consequently filed on the 6th February, 2009. Mr. A.R. Fatoki of counsel represented the appellant and on the 16th February, 2010 in the course of arguing the appeal, adopted and relied on their brief reference supra. The counsel therefore urged in favour of allowing the appeal and as a consequence set aside the ruling of the lower court delivered on the 17th November, 2004.
From the affidavit of service before us, there is evidence by the bailiff to the effect that the respondent was duly served hearing notice in respect of this appeal personally on the 8th January, 2010 but that he refused to acknowledge same. The said notice was left with the respondent and which I hold amounts to good service. The respondent neither filed any brief of argument nor did he eventually turn up in court to defend the appeal.
From the seven grounds of appeal filed, the appellant distilled two issues for determination as follows:-
“1. Whether the learned trial judge was right in holding that the application dated 23rd March, 2004 is identical with the earlier application dated 30th May, 2001 such as to render the latter application an abuse of the process of court.
2. Whether the trial court was right in dismissing the second application as an abuse of process of court when it was premised on the grounds that the application of the plaintiff/judgment creditor was afflicted with a fundamental vice, to wit, a failure to serve necessary court processes and that it was obtained by fraud and misrepresentation.”
The appellant’s counsel related issue 1 and distilled same from grounds 1, 2 and 3 of the grounds of appeal and cited the case of Minister of Works vs Tomas Nig. Ltd. (2002) 2 NWLR Pt.752 page 740 at page 778 to 779 where this court defined the phrase ‘an abuse of the process of court’ Counsel submitted that the ingredients as to when a suit or application will constitute an abuse of the process of court are lacking. Counsel also re-iterated that the two applications are dissimilar because, while the former was basically premised upon setting aside the Ruling of the trial judge on the ground mainly that the property i.e. 42, Adeniji Street Alakuko was grossly under-valued, the latter application was seeking an order setting aside the writ of attachment and sale of the immovable property of the appellant on the ground of fraud and gross misrepresentation of facts.
Furthermore the learned counsel argued that the proper manner of assailing a judgment alleged to have been obtained by fraud is by way of a fresh action as done by the appellant by his application of 23rd March, 2004 and not by filing an appeal as concluded by the learned trial judge. That a party cannot seek rehearing of his case on appeal if his ground for rehearing of his case on appeal is that the judgment was obtained by fraud. The counsel to buttress his submission further relied on the cases of Olufunmise v Falana (1999) 3 NWLR (Pt.136) p.1, 10 Anatogu v Iweka (1995) 8 NWLR (Pt.415) p.547 and N. A. Engineering Co. Ltd. vs Ezenduka (2002) 1 NWLR (Pt.74) p.490-491.
The 1st issue relates to the similarity or not of the applications dated 23rd March, 2004 with that dated 30th May, 2001 such as to render the latter an abuse of the process of court. This court, per Bulkachuwa JCA in the case of Minister of Works vs Tomas Nig. Ltd. cited by the learned appellant’s counsel supra, at pages 778 to 779 of the report in the course of defining what amounts to an abuse of the process of court had this to say:-
“There is said to be an abuse of the process of the court when a party improperly uses the issue of judicial process to the irritation and annoyance of his opponent such as instituting a multiplicity of actions on the same subject matter against the same opponent on the same issue. It is not the existence or pendency of a previous suit that causes the problem. Rather it is the institution of a fresh action between the same parties and on the same subject matter when the previous suit has not yet been disposed of, that constitute abuse of process of court. For a case therefore to be said to be an abuse of the process of court it must contain all the above ingredients.”
The two applications dated 23rd March, 2004 and the previous dated 30th May, 2001 have both been reproduced earlier in the course of this judgment. In other words having regard to the two as evidence at pages 47 with the supporting affidavit at pages 48 and 49 and also the one at pages 140-141 with the supporting affidavit at pages 142- 143 of the record of appeal respectively, can the error attributed to the trial court be correct as submitted by the learned appellants’ counsel? For the proper determination of the issue at hand, both the reliefs sought on the applications as well as the affidavits in support would for this reason be analysed for comparative purpose. In other words, on a closer examination and reading of the two reliefs, both seek for an order setting aside the order of attachment and sale of the applicant’s property at 42, Adeniji Street, Alakuko, Lagos State. While relief 4 of the earlier application alleges gross under-valuing of the sale of his property in question, the grounds of allegation on the latter application was a result of fraud and gross misrepresentation of facts. The said two grounds cannot in the circumstance be seen as dissimilar in nature, but are evidently closely related and portraying similar intentions.
In further consideration, certain aspects of the paragraphs of the affidavits in support of the two applications are also revealing and therefore relevant. In other words the reproduction of paragraphs 7, 15 and 16 of the affidavit in support of the earlier motion dated 30th May, 2001 state as follows:-
“7. That I had all assurances from my sister, and sometimes in 1999 I travelled for a course which lasted for many months. When I came back my sister still assured me that the reconciliation move was still intact.
15. That the sale of my immovable property was not called for because I have movable properties worth up to two Million Naira. I shall pay the judgment debt to court so that the purchaser/respondent can collect back his purchase money.
16. That my junior sister the Plaintiff/Respondent was desperate to displace me from my property inspite of our blood relationship.”
Also in respect of the other motion, paragraphs 3, 5 and 6 of the affidavit in support at pages 142 of the record had this to say:-
“3. That the judgment/creditor is my full blood sister and she used to regularly visit my house prior to the time of executing this attachment and the sale.
5. That as at the time of filing the motion for attachment and sale of my immovable property, my sister knew and still knows that I have movable properties a list of which are hereto attached and marked Exhibit ‘A’.
6. That my sister in her affidavit in support of the motion on notice for the attachment of my property dated 10/12/1999 willfully and fraudulently deposed to the fact that I have no movable properties to satisfy the judgment sum. Attached herewith and marked Exhibit ‘B’ is the photo-copy of the Certified true Copy of the Affidavit in support of the motion.”
Deducing from the summary of the two affidavits reproduced supra, both seek to relate the same sets of facts and the intention which was that the applicant’s sister acted in bad faith; It is pertinent to state that the earlier application was, on the 5th November, 2002 refused and dismissed. The lower court’s findings and conclusions in respect of the latter application, the subject of this appeal which is contained at page 224 of the record, had been earlier reproduced in the course of this judgment.
In the case of C.B.N. v Ahmed (2001) 11 NWLR(Pt.724) p.369, their Lordships of the apex court at page 408 had this to say, on what is meant by the terminology an abuse of process of court, wherein Ogundare JSC(of blessed memory) had this to say as the definition:-
“It simply means that the process of the court has not been used bona fide and properly. In Amaefule v The State (1988) 2 NWLR (Pt.75) 156 at 177, Oputa JSC defined the expression ‘abuse of process of the court’ thus:
“Abuse of process of the court is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. abuse of process can also mean abuse of legal procedure or improper use of legal process.”
In the case of Arubo v Aiyeleru (1993) 3 NWLR (Pt.280) 126, for instance, the Supreme Court held that the relitigation of already decided issues is an abuse of court’s process, even if the matter is not strictly res judicata: see the case of Stephenson v Garnett (1898) 10 QB 677. Also in support is the case of Adigun & Ors. V Sec. Iwo Local Government & Anor. (1999) 8 NWLR (Pt.613) 30.
From the foregoing deduction, it follows that the multiplicity of actions on the same matter between the same parties is regarded as an abuse. The abuse therefore lies in the multiplicity and manner of the exercise of the right. Also further and relevant is the case of Saraki v Kotoye (1992) 9 NWLR (Pt.264) page 156.
It is also trite law that once a court is satisfied that any proceeding before it is an abuse of process, it has the power and duty to dismiss it. The court therefore has a duty in such a situation to interfere to stop an abuse of its process. See the case of Aruba v Aiyeleru under reference supra and Okafor v Attorney General of Anambra State (1991) 6 NWLR (Pt.200) 659.
Furthermore and as rightly concluded by the lower court, by the very nature of the two applications, the learned trial judge had certainly also become functus officio of the case and cannot sit on appeal on his own decision. See the case of Olowu v Abolore (1993) 5 NWLR (Pt.293) p.255 at 270-271 wherein the apex court held thus and said:-“It is well settled, and it is unnecessary citing of decided cases that after finally deciding a matter before it, the Court of Appeal becomes functus officio, and lacks jurisdiction to deal with the matter. This is essentially because the court cannot sit on appeal on its own decisions, having not been vested with any power so to do. The constitutional and statutory jurisdiction of the Court of Appeal is to hear appeals from the lower court. It cannot hear appeals from its own decisions. Thus having finally decided a case before it, becomes functus officio as to that case.”
Tobi JCA (as he then was) in his contribution in the case of Megwalu v Megwalu (1996) 2 NWLR (Pt.428) p.104 also had the following to say at page 120:-
“It is elementary law that once a court of law delivers judgment or ruling it becomes functus officio and the only remedy available to an aggrieved party is to proceed on appeal, unless the judgment or ruling is that of the Supreme Court, in which case, the party has no further right of appeal.”
The appellants learned counsel went further to consider the same issue 1, which he submitted and argued same flowing from grounds 4 and 7 of the appellant’s notice of appeal. It is indeed very absurd that counsel having argued issue 1 would turn around and resubmit again on the same issue but relate to grounds 4 and 7 which did not have any bearing or relationship with the said issue.
In other words while issue one relates to question of similarity of applications, grounds 4 and 7 of the grounds of appeal allege fraud in the proceedings of the lower court. This is a complete confusion and a dire mix up of the entire appeal and it is not for the court to aid a party to sort out his case as it would amount to taking sides against the other party and therefore prejudicial to him. The court is to act on the materials placed before it and does not have the power to stray away therefrom. An analogy can be drawn from the case of Governor of Gongola State v Tukur (1989) 4 NWLR (Pt.117) 592 where the apex court said:
“The Court of Appeal cannot go outside the terms of the motion however misconceived it is. It is bound by the terms or prayers in the motion filed.”
There is no submission by counsel on issue 2 which formulation cannot be sustained in the absence of any submission in substantiation. It also follows that the further submission on issue 1 relating grounds 4 and 7 is a total misnoma as there is no relationship whatsoever. Issues are to be formulated based on grounds of appeal. The subsequent submissions under grounds 4 and 7 therefore have no basis and same is accordingly struck out. Grounds 5 and 6 of the grounds of appeal in the absence of any issue formulated therefrom are also struck out.
Having concluded on the said issue one supra, the deductive summary is that it is resolved against the appellant. On the totality of the appeal before us, it is devoid of dire merit and accordingly dismissed. I therefore make an order upholding the ruling of the Lagos High Court presided over by Hon. Justice Adefope Okojie delivered on the 17th November, 2004 where he dismissed the applicant’s application dated 23rd March, 2004 on the ground that the court is functus officio thereof.
Appeal is dismissed with no order as to costs.
ADZIRA GANA MSHELIA, J.C.A.: I have read in advance the judgment just delivered by my learned brother Ogunbiyi, JCA. I am i in entire agreement with her reasoning and the conclusion reached that this appeal lacks merit. For the reasons stated in the lead judgment, I also dismiss the appeal and abide by the order made as to costs.
ADAMU JAURO, J.C.A.: I have been privileged before today to read In draft the judgment just delivered by my learned brother, Ogunbiyi, JCA. I am in complete agreement with the reasoning and conclusion 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 whatsoever and must therefore be dismissed.
The appeal is hereby dismissed, and there will be no order as to costs.
Appearances
Mr. A. R. FatokiFor Appellant
AND
Respondent not represented.For Respondent
