H.R.M. OBA RILWAN OLUWALAMBE TAIWO & ANOR. v. MR. ISAAC AKINBOLAJI & ANOR. (2010)

H.R.M. OBA RILWAN OLUWALAMBE TAIWO & ANOR. v. MR. ISAAC AKINBOLAJI & ANOR.

(2010)LCN/3990(CA)

In The Court of Appeal of Nigeria

On Friday, the 16th day of July, 2010

CA/L/292M/2007

RATIO

ABUSE OF COURT PROCESS: WHETHER WHERE A LITIGANT IN THE EXERCISE OF HIS CONSTITUTIONAL RIGHT BRINGS AN ACTION, THE EXISTENCE OF A SIMILAR COURT ACTION WILL GIVE RISE TO AN ABUSE OF COURT PROCESS

Where a litigant in the exercise of his constitutional right brings an action, the existence of a similar action does not in law constitute abuse of court process. See: Amos Ogbe Yaro v. Salami Fabolude 1983) 3 SC 78, Jadesinmi v. Okotie Eboh (1986) 1 NWLR (Pt.16) 264. PER ADZIRA GANA MSHELIA, J.C.A.

INTERFERENCE WITH FINDINGS OF FACTS: WHETHER AN APPELLATE COURT WILL NOT INTERFERE WITH THE FINDINGS OF FACTS MADE BY THE LOWER COURT UNLESS AN APPELLANT SHOWS THAT THOSE FINDINGS WERE WRONGLY MADE

ABUSE OF COURT PROCESS: WHAT ABUSE OF COURT PROCESS ENTAILS

ABUSE OF COURT PROCESS: FACTORS THAT MUST CO-EXIST TO SUSTAIN A CHARGE OF ABUSE OF PROCESS

Therefore to sustain a charge of abuse of process there must co-exist inter alia (1) a multiplicity of suits (2) between the same opponents (3) on the same subject matter; and (4) on the same issues. See: Saraki v. Kotoye (1992) 9 NWLR (Pt 264) 156 at 188 – 189; Okorodudu v. Okoromadu (2002) 23 WRN 188; (1977) 3 SC 21; Umeh v. Iwu (2008) 41 W.R.N; African Re-Insurance Corn, v. T.B.P. Construction (Nig) Ltd (2003) 2-3 SC 47; 13 NWLR (Pt 838) 609; Mobil Producing Nigeria Unlimited v. Chief Monokno (2003) 12 SC (Pt 11) 50; Onyeabuchi v. Independent National Electoral Commission (2002) 4 SC (Pt 11) 27; Emyibros Foods Processing Company Ltd and Anor. v. Nigeria Deposit Insurance and Ors. (2007) 3 SC (Pt 11) 175 and Ikine & Ors. y. Edierode & Ors. (2001) 8 NSCQR 348 at 363. PER ADZIRA GANA MSHELIA, J.C.A.

ABUSE OF COURT PROCESS: CIRCUMSTANCE UNDER WHICH AN ABUSE OF COURT PROCESS WILL ARISE

The abuse arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See: Okorodudu v. Okorodudu (1977) 3 SC 21, Oyegbola v. Esso West Africa Inc. 1966 1 All NLR 170. The multiplicity of actions on the same matter between same parties even where there exists a right to bring the action is regarded as an abuse. The abuse has in the multiplicity and manner of the exercise of the right, rather than the exercise of the right perse. See: Saraki v. Kotove (supra) pages 188 – 189. PER ADZIRA GANA MSHELIA, J.C.A.

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

Between

1. H.R.M. OBA RILWAN OLUWALAMBE TAIWO
2. LT: COMMANDER WALE OJO RTD Appellant(s)

AND

1. MR. ISAAC AKINBOLAJI
2. TEMIDAYO AKINBOLAJI Respondent(s)

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): The Respondents were the claimants in suit ID/727/2005 at the High Court of Lagos State in which suit the respondents claimed against the defendants now appellants in the statement of claim paragraph 43 as follows:-
(i) A declaration order that the property No.1 Okegbenro Street, Jankara, Ojokoro Lagos State belongs to the 1st claimant who legitimately bought same from the rightful owner.
(ii) A declaratory order that the 1st claimant of statutory right of occupancy under the Land Use Act Cap 2002 Laws of the Federal Republic of Nigeria 1990 in respect of the land or parcel of land in dispute which is property No. 1, Okegbenro Street, Jankara, Ojokoro Lagos State.
(iii) A declaration that any purported purchase by the 2nd defendant of the land in dispute from the 1st defendant or any other person is illegal, unlawful null and void and of no effect whatsoever.
(iv) A declaration that any sale or purported sale of the said land by the 1st defendant is illegal, unlawful, null and void and of no effects whatsoever.
(v) An order of perpetual injunction restraining the defendants, their Agents and or servants from further entry and committing further acts of trespass and waste on the land in dispute.
(vi) ?47,000,000.00 as both special and general damages against the defendants jointly and severally for trespass and wanton destruction of the claimants and that of their defendants properties on the land in dispute.
Particulars of Special Damages.
(a) Cost of the 2nd claimant’s tools in trade carted away by the 1st defendant.   – N1,000,000.00
(b) Cost of the 2nd claimant’s personal effects     – N1,200.000.00.
(c) Cost of claimant’s wife and children personal effects – N1,720,000.00.
(d) Cost of 1st claimant’s wife and children personal   – N5,000,000.00
Effects carted away by the defendants.
Total           N5,000,000.00
General Damages for unlawful entry dispossessing the claimants of their properties, trespass N2,000,000.00 and
Nuisance committed by the defendant. –           N7,000,000.00
The Respondents filed a joint statement of claim, list of witnesses to be called at the trial; written statement on oath of the 5 witnesses listed by the Respondents; and list and copies of documents to be tendered at trial as exhibits. The 1st appellant in defence of the Respondents claims against him filed a statement of Defence and Counter-claim; list of his intending witnesses, written statement on oath of his set witnesses, list and copies of documents to be tendered at trial as exhibits. 2nd Appellant did not file any defence to the Respondents writ of summons and statement of claim. At the close of pleadings, Respondents and 1st appellant attended pre-trial conference, whereupon the parties formulated and submitted issues for determination in their respective opinion to the pre-trial judge. During the pre-trial conference 1st appellant brought an application dated 5th July, 2006, pursuant to Order 37 Rules 7(2) and (3) and Order 39 Rule (1) of the High Court of Lagos State (Civil Procedure) Rule, 2004, asking for:
“1. An order dismissing the Respondents suit for constituting abuse of process of court.
2. Or, an order staying proceedings in this suit pending the direction of the Honourable Chief Judge of Lagos State for the transfer and/or consolidating of this suit with suit no. ID/787/04:
H.R.M. Qba Rilwan Oluwalambe Taiwo v. Mr. Isaac Akinbolaii & Anor. now before the Honourable Justice K.O. Alogba sitting at High Court, Ikeja. (2) xxx xxx xxx
The Grounds for the application are as follows: –
(1) There is pending before the Honourable Justice K.O. Alogba suit no. ID/787/04:
H.R.M. Oba Rilwan Oluwalambe Taiwo v. Mr. Isaac Akinbolaji & Anor. which is first in time to this suit and bearing on the same subject matter, to its ownership of No.1 Okegbenro Street Ojokoro, Lagos State,
(2) The claimants in this suit who are defendants in suit no. ID/787/04 have a counter-claim for similar reliefs claimed in this suit.
(3) The parties in suit no. ID/787/04 are substantially the same as the parties in this suit.
(4) This suit by the combined effect of points (1) (2) and (3) translate to an abuse of the process of court,
(5) Being an abuse of process, this Honourable Court is divested of jurisdiction to entertain the action.
(6) The tendency of these similar suits has been brought to the attention of the Honourable Chief Judge of Lagos State for his direction.”
The Respondents filed a counter-affidavit to the 1st Appellant’s application. The learned trial judge in a considered ruling delivered on 29th day of November, 2006 dismissed the 1st appellant’s application.
Dissatisfied with the ruling of the lower court the appellants appealed to this court by filing notice of appeal on 25/4/07 containing three grounds of appeal. In accordance with the practice of this court parties exchanged briefs of argument.
Appellants’ brief of argument settled by Chief S.W. Baidi was filed on 27/2/08. While respondents brief settled by Sanya Ayeni Esq. was filed on 18/4/08. When the appeal came up for hearing Appellants’ counsel adopted appellants’ brief of argument and urged the court to allow the appeal. Similarly respondents’ counsel adopted respondents brief of argument and urged the court to dismiss the appeal. The appellants filed three grounds of appeal from which they distilled one issue for the determination of this court. The sole issue read thus: –
“Whether circumstances indicative of abuse were not present in suit no. ID/727/05, simply because the 2nd appellant who derived his title from the 1st appellant is not a party to suit no. ID/787/04” Respondents on the other hand distilled sole issue from the grounds of appeal filed by the appellants as follows:
“Whether in the light of the available evidence before the lower court, suit no. ID/727/05 constitutes an abuse of court process, which ought to lead to the respondents’ case dismissal in Limine?”
In arguing the appeal, appellants’ counsel referred to the guiding principle on abuse of process given by A.O. Ejiwunmi, JSC (of blessed memory) in the case of Ikine & Qrs. v. Edjierode & Ors. (2001) 8 NSCQR 348 at 363, lines D – F, where he said:
“For an action to be declared frivolous, vexatious, oppressive and an abuse of the process of court, it must bestow quite clearly that there are two or more actions between the same parties in respect of the same subject matter in one or more courts at the same time.”
Appellants’ counsel argued that there are two actions, that is ID/787/04 and ID/727/05, pending in respect of the same subject matter in two courts at the same time. The two respondents in this appeal who are 1st and 2nd claimants in suit no. ID/727/05 are 1st and 2nd defendants in suit no. ID/787/04. They have a counterclaim against the 1st appellant in that suit which was first in time. The subject matter in both suits is No. 1 Okegbnro Street, Ojokoro, and the issue in both suits is ownership of the said property. The reliefs claimed by both parties in the two suits are for declaration of title; damages for trespass; and injunction against repetition of trespass. It was argued that the above facts were confirmed by the learned trial judge in her ruling which is contained at page 123 of the record of appeal. After making the above observation, the learned trial judge proceeded to state that the circumstances indicative of an abuse were not present in the instant case and therefore dismissed the appellants’ application for the dismissal of the suit. Appellants’ counsel referred to the observation of the learned trial judge at pages 123 – 124 of the record. Learned counsel further contended that the learned, trial judge came to the erroneous conclusion because she failed to appreciate the status of the 2nd appellant in regard to the land in dispute. The fact that 2nd appellant was not named a party in Suit No. ID/787/04 is immaterial in law. Learned counsel cited the case of Maya v. Oshuntokun (2001) 11 NWLR (Pt 723) 62 at 67 ratio 9 to emphasize the fact that parties named on the writ includes privies. For types of privies, See: Coker v. Sanyaolu (1976) 9 – 10 SC 203; Gbadamosi v. Daira (2001) 6 NWLR (Pt.708) 137 at 141 – 142 and Agunmo v. Azubuike (1999) 5 NWLR (Pt.604) 649 at 653 ratio 8.
Furthermore, appellants’ counsel argued that the 2nd appellant derived his title to the said land through the 1st appellant. See paragraphs 35 and 36 of the statement of claim dated 18th July, 2005 filed by the respondents. Appellants also referred to relief 5 of respondents counter-claim dated 14th October, 2004 in Suit No.ID/787/04 wherein they claimed a perpetual injunction restraining the claimant either by himself, servant and/or privies. The effect is that if the counter-claim of the respondent in suit no. ID/787/04 is successful against 1st appellant, it will be binding on 2nd appellant as a privy. Appellants, therefore contended that the filing of suit no. ID/727/05 by the same respondents who are counter-claimants in suit no. ID/787/04 is an abuse of the process of court. Learned counsel referred to S.54 of the Evidence Act and contended that the judgment in the two suits ID/787/04 and ID/727/05 will be conclusive proof as against the parties named on the writ as well as their privies.
In reply, respondents’ counsel referred to the provision of the High Court of Lagos State Civil Procedure Rules 2004 under which the application which led to this appeal was brought. See: Order 37 rule (2) and (3) of the High Court Civil Procedure Rules 2004. Learned counsel argued that a party seeking a dismissal on the ground of abuse of court process must satisfy the court that the suit complained of is wanting in bonafide, frivolous, vexatious or oppressive. See: R. Benkav Nigeria Ltd. v. Cadbury Nigeria Plc. (2005) vol. 16 W.R.N. 117 at 124. It was contended that in one breath 1st appellant was asking for consolidation of this suit with another case and in another breath he said same constitutes abuse of court process. The application of 1st appellant was rightly dismissed. Furthermore, respondents’ counsel argued that 1st appellant had fully participated in the suit by filling all other requisite processes, taking part in pre-trial conference proceedings, submitting issues for determination in both his defence and counter-claim, before making a volte face to allege abuse of process. He stated that 1st appellant cannot blow hot and cold since he filed fresh action. He said respondents have not shown any bias, malice or desire to misuse or pervert the cause of justice or judicial process to his irritation or annoyance. Where a litigant in the exercise of his constitutional right brings an action, the existence of a similar action does not in law constitute abuse of court process. See: Amos Ogbe Yaro v. Salami Fabolude 1983) 3 SC 78, Jadesinmi v. Okotie Eboh (1986) 1 NWLR (Pt.16) 264.

An appellate court will not interfere with the findings of facts made by the lower court without an appellant showing that those findings were wrongly made. See: Ogundimu v. Kasunmu (2006) 41 WRN 1 and Enemuo v. Duru (2004) 39 WRN 66. Based on the facts made available to the lower court, the finding that there was no circumstance indicative of an abuse of process in the instant case ought and should not be interfered with by this court.
Furthermore, it was contended that the lower court had rightly observed that the parties in the two suits are not same, as the person named as the 2nd Defendant in suit no. ID/727/05 is not a party in suit no. ID/787/2004. Also, the reliefs sought in the two cases are not the same. Similarly, the claims in the two suits are not the same. While in ID/727/05 the respondents were asking for five (5) declarative reliefs and N7 million as special and general damages for trespass and an injunctive relief. In ID/787/04 no claims were made against the party listed as 2nd Defendant as he was not a party in that suit. Learned counsel submitted that 1st appellant has not shown that suit ID/727/05 constitute an annoyance, irritation and harassment to him. He said it is not in all cases where parties are the same that one can allege abuse of court process. It is in cases where the second suit is filed to annoy, irritate and harass the other party that the court will see same as multiplicity of action and will disallow same. In the instant case, the party listed as 2nd Appellant was not a party to one of the suits, the reliefs are not similar, and the courts will not terminate same for it is the duty of the court to do justice to the claims of the parties. See: Amos Ogbe Aro v. Salami Fabolude (1983) 3 SC 75.
The appeal is founded on abuse of process. The concept of abuse of judicial process is imprecise. It, involves circumstances and situations of infinite variety and conditions. 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 Niki Tobi JSC in Ntuks v. NPA (2007) 13 NWLR (Pt 1051) 392 at 419 – 420 thus: –
“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 malafide 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 cause. 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.”
Therefore to sustain a charge of abuse of process there must co-exist inter alia (1) a multiplicity of suits (2) between the same opponents (3) on the same subject matter; and (4) on the same issues. See: Saraki v. Kotoye (1992) 9 NWLR (Pt 264) 156 at 188 – 189; Okorodudu v. Okoromadu (2002) 23 WRN 188; (1977) 3 SC 21; Umeh v. Iwu (2008) 41 W.R.N; African Re-Insurance Corn, v. T.B.P. Construction (Nig) Ltd (2003) 2-3 SC 47; 13 NWLR (Pt 838) 609; Mobil Producing Nigeria Unlimited v. Chief Monokno (2003) 12 SC (Pt 11) 50; Onyeabuchi v. Independent National Electoral Commission (2002) 4 SC (Pt 11) 27; Emyibros Foods Processing Company Ltd and Anor. v. Nigeria Deposit Insurance and Ors. (2007) 3 SC (Pt 11) 175 and Ikine & Ors. y. Edierode & Ors. (2001) 8 NSCQR 348 at 363.
It is not in dispute that 1st appellant in the year 2004, filed suit no. ID/787/2004 against the 1st and 2nd respondents claiming ownership of the property known as No. 1 Okegbenro Street, Ojokoro Lagos, damages for trespass and perpetual injunction. The suit is still pending in court. See the statement of claim appearing at pages 102-104 of the record. The respondents filed a statement of defence in response to the statement of claim and they also filed a counter-claim dated 14th day of October, 2004. In the year 2005 the respondents instituted an action against 1st and 2nd appellants in suit no. ID/727/2005 claiming declaratory right to the same property known as No. 1 Okegbenro Street, Ojokoro, damages for trespass, and injunction against further trespass. See the respondents’ writ of summons at pages 1 – 3 and the statement of claim at pages 4 – 10 of the record of appeal. 1st Appellant also filled a statement of defence and counter-claim.
Appellants contention is that the second suit ID/727/05 filed by the respondents is a clear case of abuse of court process. Respondents on the other hand are contending that the parties are not the same since 2nd appellant was not a party in the suit filed in 2004 by the appellants. I have carefully examined the pleadings filed and exchanged by parties in the two actions: ID/787/04 and ID/727/05. In the suit filed by 1st appellant in 2004 2nd appellant was not a party. The subject matter in both suits is the property known as No. 1 Okegbenro Street, Ojokoro. The issue at stake in both suits is the ownership of the said property. The reliefs claimed in both suits are substantially the same. The reliefs are for declaration of title, damages for trespass and injunction against repetition of trespass.
From the facts and circumstances of the case, the question to be resolved is whether the filing of suit no. ID/727/05 by the respondents constitutes an abuse of court process. I would answer the question in the affirmative.
The abuse arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See: Okorodudu v. Okorodudu (1977) 3 SC 21, Oyegbola v. Esso West Africa Inc. 1966 1 All NLR 170. The multiplicity of actions on the same matter between same parties even where there exists a right to bring the action is regarded as an abuse. The abuse has in the multiplicity and manner of the exercise of the right, rather than the exercise of the right perse. See: Saraki v. Kotove (supra) pages 188 – 189. The respondents filed a defence/counter-claim in the suit no. ID787/04 instituted by the 1st appellant and claimed declaration of title, damages and injunction. Respondents did not discontinue the counter-claim before filing suit no. ID/727/05 wherein they claimed reliefs substantially the same as those claimed under the counterclaim. It is therefore improper for the respondents to resort to filing a fresh action. I agree with the appellants’ counsel that the joinder of the 2nd respondent is immaterial. The respondents after discovering that 2nd appellant was in possession of the property could apply to the court for amendment of their counterclaim so as to join the 2nd appellant as 2nd defendant to their counter-claim. It is to be noted that 2nd appellant derived his title from the 1st appellant. It would therefore not be out of place if 2nd appellant is made a party but it was unnecessary for respondents to file fresh suit which has reliefs substantially the same as what they asked for in the counter-claim in the suit instituted by the 1st appellant in 2004. Based on the above careful appraisal of the two suits I entirely agree with the submission of appellants’ counsel that it was erroneous for the learned trial judge to dismiss the application on the ground that the circumstances of the case did not disclose case of abuse of court process. As earlier discussed the conditions required to sustain a charge of abuse of process exists in the two suits and therefore the sole issue raised in this appeal has to be resolved in favour of the appellants.
In the final analysis, therefore, the appeal is meritorious and same succeeds. Appeal allowed. The ruling of the lower court delivered on 29th day of November, 2006 is set aside. In its place make an order dismissing suit No. ID/727/05 pending before Adefope-Okojie J. of the High Court of Lagos State as an abuse of process of court. Parties to bear own costs.

HUSSEIN MUKHTAR, J.C.A.: I was privileged to preview the judgment just rendered by my learned brother Mshelia, J.C.A and agree that the suit No. ID/727/05 instituted by the respondents against the defendants a, the court below constituted a clear abuse of court process. The order for dismissal of the 1st appellant’s motion dated 15/7/2006 by the court below in its ruling delivered on the 29th November, 2006 was erroneous.
The action in suit ID/727/2005 which is substantially between the same parties as suit No. 1D/787/04 on the same subject matter was tantamount to an abuse of court process being the one that was initiated later in time, the fact that one nominal party was added to it notwithstanding.
I therefore adopt all the reasons in the lead judgment and the conclusion that the appeal is meritorious as mine. Accordingly the appeal is allowed by me. I subscribe to the consequential orders made in the lead judgment and make no order as to costs.

ADAMU JAURO, J.C.A.: I have had a preview of the lead judgment just delivered by my learned brother, Mshelia J.C.A. I am in agreement with the reasoning and conclusions contained therein, which I also adopt as mine.
In view of suit No.ID/787/2004 instituted in 2004 by 1st appellant against 1st and 2nd respondents claiming same reliefs on the same subject matter, the second suit No. ID/727/2005 instituted by the respondents in the year 2005 amounts to an abuse of court process. The appeal is meritorious, it succeeds and is hereby allowed. The ruling of the lower court dated 29th November, 2006 is hereby set aside and suit No. ID/727/05 is accordingly dismissed.
There will be no order as to costs.

Appearances

Chief S.W BaidiFor Appellant

AND

Chief Sanya AyeniFor Respondent