OLUGBENGA ADENIYI V. FEDERAL REPUBLIC OF NIGERIA
(2011)LCN/4325(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of February, 2011
CA/AE/90/C/2010
RATIO
ABUSE OF COURT OF PROCESS: WHAT THE TERM “ABUSE OF COURT PROCESS” ENTAILS
…Abuse of Process is a term generally applied to a proceeding which is wanting in bona fide, and therefore frivolous, vexatious and oppressive. It also means the improper use of the legal process. 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, and the efficient and effectual administration of justice. It may also mean employing or invoking the judicial process or procedure by issuing it in bad faith for the purpose of gaining advantage against or to the detriment of his adversary. The abuse is not in the exercise of the right per se, but in the manner or purpose for which such right is exercised. One instance of abuse of process of the Court is when a party institutes a multiplicity of actions on the same subject matter against the same opponent in the same issues. thus, where two processes are between the same parties in respect of the same subject matter, and are actions or processes in which common questions of law and facts arises or the alleged right to relief are in respect of or arises out of the same transaction or series of transactions, suit or process filed later in time would constitute an abuse of process. See NYAH V NOAH (2007) 4 N.W.L.R. (PT 1024) P. 320; N.I.W.A. VS S.T.B. PLC (2008) 2 N.W.L.LR (PT. 1072) P. 483; ALI V. ALBISHIR (2008) 3 N.W.L.R (PT. 1073) P. 94; DUMEZ (NIG) PLC V UBA PLC (2006) 3 N.W.L.R (PT. 1000) P. 515 and OGOEJEOFO V OGOEJEOFO (2006) 3 N.W.L.R (PT 966) P.205. See also UMEH V IWU (2008) 8 N.W.L.R (Pt. 1089) P. 255 at P. 243 Paragraphs D-H per Chukwuma-Eneh, J.S.C. PER HARUNA MOH’D TSAMMANI, J.C.A.
JUSTICES:
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA MOH’D TSAMMANI Justice of The Court of Appeal of Nigeria
Between
OLUGBENGA ADENIYI – Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA – Respondent(s)
HARUNA MOH’D TSAMMANI, J.C.A. (Delivering the lead ruling): The Appellant/Applicant and others were arraigned before the Federal High Court, Ado-Ekiti on an eight (8) count charge alleging that they committed offences contrary to Sections 43(a), 43(b), 43(e), 44(d), 44(e) of the Federal Inland Revenue Service Act, No: 13 of 2007, which are offences which if proved, carry punishments of imprisonment for a period not exceeding 3 years with an option of fine. Upon his arraignment, the Appellant/Applicant applied for his bail and which application was refused by the learned Trial Judge of the Federal High Court, Being dissatisfied with the Ruling of the lower court, he filed a Notice of Appeal against that Ruling. The said Notice of Appeal has been annexed to the affidavit in support of this application as exhibit F.I.R 4. Upon the filing of the Notice of Appeal, the Appellant/Applicant filed the instant application seeking for the following reliefs:
1. AN ORDER of this Honourable court admitting the Appellant/Applicant person to bail upon such terms and conditions as this Honourable Court may deem fit to impose Pending the determination of his Appeal against the decision of the Federal High Court, Ado-Ekiti, delivered by Hon. Justice Emmanuel A. Obile on 27th day of July, 2010, in charges No: FHC/AD/14c/2010, between Federal Republic of Nigeria Vs Apanisile Idowu and 3 ORS.
2. AND FOR SUCH FURTHER or other orders as this Court may deem necessary to make in the circumstances of this case.
The ground upon which the application is predicated is that:
(i) The charge NO: FHC/AD/14c/2010 was preferred against the applicant in this Court.
(ii) The offences disclosed on the face of the charge are ordinarily bailable.
(iii) The lower court ordered that the Applicant and 2 others named in this charge be remanded in prison custody.
(iv) The Court ordered that, it would not countenance, oral application for bail, hence this application.
(v) The lower court after considering a formal application for bail refused same on the ground that the evidence attached to the charge is strong.
The Appellant/Applicant supported this application with an affidavit of 23 paragraphs deposed to by his wife, Mrs. Bosede Adeniyi, to which he exhibited Certified True Copies of the Charge Sheet, List of Exhibits, or Proofs of Evidence, the Bail application before the lower court, the Ruling of the lower court thereon and the Notice of Appeal. He marked them as exhibits FIR1, FIR2A, FIR2B, FIR3 and FIR4 respectively. The Appellant/Applicant also filed a written Address in Support of the Application.
The Respondent opposed this application and in so doing filed a counter Affidavit of 18 paragraphs deposed to by one Bashir Muhammed Hamis, a staff of the Federal Inland Revenue service (FIRS); Investigation and Enforcement Unit (Abuja). The Respondent also filed a written Address in support of her opposition to the application.
At the hearing of the application, Mr. R.O. Balogun of Learned counsel for the Appellant/Applicant adopted the Appellant/Applicant’s; written Address dated the 20/10/2010 and filed the 22/10/2010, and urged us to grant the application. The cases of OKOYE V CENTRE-POINT MERCHANT BANK LTD (2008) ALL F.W.L.R (Pt. 441) P.810 at P. 834 PARAGRAPHS B-C and ODUSOTE V ODUSOTE (1971) 1 ALL W.L.R., P.219 were further cited in support of the application, similarly; Miss I.M Salihu of learned counsel for the Respondent; adopted and relied on the Respondent’s written Reply Address dated the 29/10/2010 and filed the 01/11/2011 and urged us to dismiss the application.
In arguing the application, the Appellant/Applicant formulated two issues for determination as follows:
1. Whether or not this court is by statute and by the Rules of Court can (sic) entertain this application.
2. whether or not the Appellant/Applicant had placed sufficient facts and materials before the Court that will entitle him to the relief sought on his application
The respondent on the other hand formulated three issues for determination. They are:
1. Whether uncontroverted evidence of the threats to the live Or limbs of material prosecution witnesses before the lower court is a crucial factor to be considered by this Honourable, Court in the determination of the Appellant/Applicant’s motion on Notice filed on the 9th day of August, 2010.
2. Whether or not the interim relief sought by the Appellant/Applicant’s motion on Notice filed 9th August, 2010 are not the same with or pre-empt the determination of the reliefs sought in the main Appeal in this case.
3. Whether there are features in the Appellant/Applicant’s motion on Notice filed 9th August, 2010 to rob this Honourable Court of the jurisdiction to hear and determine it.
I have carefully studied the issue as formulated by the parties in this application. After such consideration, I am of the view that, issue two (2) of the Respondent can be considered alongside issue one (1) as formulated by the Appellant/Applicant, while issue one (1) of the Respondent can go along with the Appellant/Applicant’s issue two (2).The 3rd issue formulated by the Respondent appears to challenge the competence of, the motion itself for the reasons stated in the argument of counsel. Since it seems to touch on the jurisdiction of this Court to hear and determine the application, I propose to consider it first. I shall adopt the two issues as formulated by the appellant/Applicant in determining this application
Now, in arguing the 3rd issue as formulated by the Respondent, learned counsel for the Respondent had submitted at pages 7 – 9, paragraphs 5.1 – 5.7 that: the issue of Service of Court process is an essential aspect of our procedural law as it is a jurisdictional issue. That service of process is a condition precedent to the competency of Court in assuming jurisdiction and adjudicating over the legal rights of litigants and that any matter or proceeding affected by lapse in the service of process suffers a fundamental flaw. That it is the fulfillment of such condition precedent such as service of process that clothes the Court with competency. The cases of OKAFOR VS A.G, ANAMBRA STATE (1991) 7 S.C. (Pt. 2) at P.38; WEMA BANK LTD VS ODULAJA (2000) S.C at P83 and AGIP (NIG) LTD and 8 ORS VS EZENDU and 8 ORS (2010) 1 S.C (Pt.11) P.98 at paragraphs 103 – 104 per Adekeye, J.S.C were cited in support. Learned counsel then contended that, the Appellant/Applicant listed the 2nd – 4th Respondents as Co-Respondents in the Appeal, but that the said 2nd – 4th Respondents have not been served. That, rather than serve all the parties, the Appellant/Applicant resorted to the short-cut of a Notice of Discontinuance of the Appeal against the 2nd – 4th Respondents, which Notice of Discontinuance is dated the 21st and filed the 22nd of October, 2010. It is therefore his submission that, failure, refusal or neglect to serve all the parties listed as Respondents in the Appeal with the instant application has robbed this Court of the jurisdiction to entertain the application. We were in the circumstances urged to decline jurisdiction to entertain this application.
I have noticed that the Appellant/Applicant did not respond to the submissions of the Respondent on the issue. I have however noted that when this application came before us on the 01/11/2010, Mr. Oso Adetunji who appeared for the Appellant/Applicant sought to, withdraw the application against the 2nd -4th Respondents and further informed us that a Notice of Discontinuance to that effect had been filed on the 22/10/2010. Miss Salihu of learned counsel for the Respondent also informed us that they had been served with the Notice of Discontinuance and that they were not opposing the application for Discontinuance. Consequently, the application to withdraw the application against the 2nd – 4th Respondents was granted. The names of the 2nd – 4th Respondents were accordingly struck out of this application. The consequence is that the 2nd – 4th Respondents and the arguments therein have become moot. I accordingly discountenance with issue 3 formulated by the Respondent and the arguments thereon.
I now consider issue No. 1 as formulated by the Appellant/Applicant.
That issue is:
Whether or not this Court is by statute and by the Rules of Court can (sic) entertain this application.
In arguing this issue, learned counsel for the Appellant/Applicant contended that this application has been brought pursuant to Sections 118 (2) and 3 of the Criminal Procedure Act, Sections 35 (4) and 35 (5) of the Constitution of the Federal Republic of Nigeria, 1999; Section 28 of the Court of Appeal Act, 2004 and Order 7 Rule 3 of the Court of Appeal Rules, 2007. That while some of the provisions under which the application is brought are general and the scope of application had been tested and settled, Section 28 of the Court of Appeal Act, 2004 and Order 7, Rule 3 of the Court of Appeal Rules, 2007 will be examined as they relate to an, application of this nature. Learned counsel then contended that, all an applicant needs to show to come within the ambit of Section 28 of the Court of Appeal Act, 2004 is that he has filed an appeal, while for such an applicant to have recourse to Order 7, Rule 3 of the Court of Appeal Rules, 2007, he must show that the application has been brought within 15 days of its refusal by the lower court He then quoted and relied on the case of ORJI Vs F.R.N (2007) 13 N.W.L.R (Pt.1050) P.55 at P.70 paragraphs D.E per Salami, J.C.A (as he then was), to submit that the nature of the appeal filed is of no moment, as once an applicant can show that he has an appeal of any kind pending before the Court, this Court will consider the application. Accordingly, learned counsel, submitted that, in the instant case, the Appellant/Applicant having shown that he has an appeal pending, this Court is competent to consider the application on the merit.
Now, though the response of learned counsel for the Respondents does not seem to answer directly the argument of learned Counsel for the Appellant/Applicant, it has in my view, some bearing to it. Learned counsel had contended that a calm perusal of the relief sought by the Appellant/Applicant at page 3, paragraphs 4 (i) and (ii) of his Notice of Appeal filed on 04/08/2010 would show that they are the same with the relief now being sought by the Motion on Notice filed the 9th of August, 2010 and which is the subject of this Ruling. That, while the main appeal seeks to set aside the Ruling of the lower court delivered on the 27/7/2010 which denied the Appellant/Applicant bail, the Appellant/Applicant has now brought the instant motion seeking the same reliefs as in the main appeal instead of pursuing the main appeal. That, since the purpose of the appeal is to set aside the Ruling of the lower court refusing bail, a determination of the instant motion will pre-empt the outcome of the judgment in the appeal. Learned counsel for the Respondent submitted therefore that, the law is settled that where a relief sought in an interlocutory application is the same as the relief sought in the, substantive case, the Court shall refuse the application. That in the context of this application, since the appeal seeks to set aside the Ruling of the lower court, refusing bail pending trial, if the present application is granted, it will go to decide the relief sought in the substantive appeal. He relied on the cases of ACKATEL CABLE MERCHANTS NIG. PLC VS OJUEBELE, (2003) 2 N.W.L.R (pt. 805), P.429 at P. 460; OJUKWU VS GOVERNOR LAGOS STATE, (1986), 2 N.W.L.R (Pt.26) P. 39; NDIC Vs CBN, (2002) 3 S. C, P.1 and AGIP (NIG) LTD VS EZENDU AND 8 ORS (Supra), at PP. 160 – 161 per Adekeye, J.S.C. He accordingly urged us to decline the invitation of the Appellant/Applicant to delve into making pronouncements that will pre-empt the issues in the appeal by way of granting the interlocutory application.
Now, it is not in doubt that Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1991 guarantees to all persons accused of having committed a crime, the right to be presumed innocent until proven guilty. To safeguard that presumption and to ensure that no person is incarcerated unless convicted after having been found guilty by a Court of competent jurisdiction, the constitution has further guaranteed to persons arrested and detained upon reasonable suspicion of having committed a crime, the right to bail by virtue of Section 35(4) of the Constitution (supra). However, there are statutory and procedural laws put in place governing the grant or refusal to grant such bail. That is why we have provisions such as Sections 118(2) and (3) of the Criminal Procedure Act (C.P.A) and 28 of the Court of Appeal Act, 2004.
For the purpose of this application, the relevant law under consideration as raised by learned counsel for the Appellant/Applicant is Section 28 of the Court of Appeal Act, 2004. For easier resolution of the issue thereon, I propose to reproduce same here. Section 28(1) of the Court of Appeal Act, 2004 provides thus:
“Court of Appeal may, if thinks fit, on the application of an Appellant, admit the appellant to bail pending the determination of his appeal.
The Appellant/Applicant now contends that by virtue of the above, stated provision, once he has an appeal before this court, he is competent to file an application for his bail. That it does not matter that the substantive appeal is against the Ruling of the lower court refusing him bail. He bases his argument on the decision of Salami, J.C.A (as he then was) in the case of ORJI V F.R.N (supra) where my lord held that this court may in the exercise of its discretion grant bail irrespective of whether the applicant had been convicted and sentenced or not provided there is a pending appeal before the Court at the time of hearing the application. My lord stated at page 79, paragraphs E – F of the report thus:
“It seems to me that the nature of the appeal pending before the Court should be immaterial. It could be an appeal against conviction and sentence. It could be an appeal against granting or refusing, granting an application for bail. It could also be, as in the instant case, appeal against refusal to quash charge or charges. If the application for bail is brought by an appellant who had not been convicted the Court’s consideration would specifically be confined to the provision of Section 29(1). But where the applicant is a person who had been convicted and sentenced it would be necessary for the Court to fall back upon Subsections (2) and (3) of Section 29 of the Court of Appeal Act to make some consequential order or orders.”
It should be noted that Section 29 of the Court of Appeal Act 1976 is now Section 28 of the Court of Appeal Act, 2004. It would appear that His lordship in applying the liberal principle of interpretation in the ORJI v F.R.N in (supra) restricted himself in the circumstances of that case to section 28 (1) of the court of Appeal Act, 2004 in arriving at his decision. He also reviewed various judicial authorities on the issue and came to the conclusion that section 29 (now section 28 (1) of the court of appeal Act, 2004) admits of literary interpretation. That specifically on the decision of the Supreme Court in MOHAMMED V OLAWUMI (1993) 4 N.W.L.R (pt. 287) p. 254 at pp. 275 and 279, this court is competent to, entertain an application for bail whether or not the applicants had been convicted and sentenced. I am aware that this court is bound by its own decision. At the same time, I have carefully studied the decision of the Supreme Court in MOHAMMED v OLAWUMI (1993) (supra) which is the authority upon which my lord, salami, J C A (as, he then was) based his decision in ORJI Vs F.R.N (Supra).
I have carefully studied the case of MOHAMMED Vs OLAWUMI (supra). The facts and circumstances of that case can be distinguished from the facts of this case in the sense that, the Appellant/Applicants in that case had already been tried and convicted of contempt by the trial Court. The Supreme Court then in interpreting Section 29 (1) of the Court of Appeal Act, 1976, held that there is nothing in the Section 29 (1) of the Court of Appeal Act, (which is in pari materia with Section 28(1) of the Court of Appeal Act, 2004) to suggest or require that an application for bail pending appeal must be made in the High Court first before being made in the Court of Appeal. The main thing in that case is that the pending appeal upon which the application for bail was premised was against the Appellant’s conviction for contempt. Similarly, the appeal grounding the application for bail before the Court of Appeal in the case of ORJI Vs F.R N was against the refusal of the lower court to quash the count or charges against the Appellant/Applicants. In the instant case, the Appellant/Applicant had applied for his bail at the lower court which was refused. He then filed an appeal before this Court against the refusal of the lower court to grant him bail. Instead of pursuing the said appeal predicated on the refusal to grant him bail; he has now filed this application seeking that he be released on bail pending the hearing and determination of the appeal against the dismissal of his application for bail by the lower court. That is what distinguishes this case from those of ORJI Vs F.R.N (Supra), MOHAMMED V OLAWUMI (Supra) and indeed all the other cases cited and relied on in ORJI VS F.R.N (Supra).
In ORJI VS F.R.N. (Supra), the Appellant/Applicant did not appeal against the refusal of the lower court to grant him bail. The issue as to whether he could still file a fresh application for bail under Section 28 (1) of the court of Appeal Act, 2004, if he had filed an appeal against the refusal of the trial Court to grant him bail did not therefore arise in that case. The pronouncement of Salamin, J.C.A. (as he then was) on that point, was in my humble view, obiter dictum. In the same token, the Supreme Court did not hold in the case of MOHAMMED V OLAWUMI (Supra), that an Appellant may invoke the original jurisdiction of that Court on the issue of bail, even where he has a pending appeal before it on the refusal of the lower court to grant him bail. Indeed, I am of the view also Section 28 (1) of the court of Appeal Act, 2004 should be accorded a liberal interpretation so as to give effect to the spirit of the constitution on the issues of bail. However, each case must in my view be considered based on its peculiar facts and circumstances. In the peculiar circumstance of this case, I am of the view that, to consider a fresh application under Section 28(1) of the court of Appeal Act, 2004, while there is a pending appeal on the issue of bail, has the potential to over-reach the substantive appeal. In other words, there is no way this court will determine this application without pronouncing on the issues which are germane to the determination of the substantive appeal.
This is evident from the affidavit deposed to in support of this application and that in support of the application before the lower court. In that respect, I hold the view that the instant application amounts to an abuse of judicial process and therefore cannot be supported by Section 28(1) of the Court of Appeal Act, 2004. Section 28(1) of the Court of Appeal Act, 2004 cannot therefore be used to perpetrate the abuse of Judicial Process.
Now, Abuse of Process is a term generally applied to a proceeding which is wanting in bona fide, and therefore frivolous, vexatious and oppressive. It also means the improper use of the legal process. 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, and the efficient and effectual administration of justice. It may also mean employing or invoking the judicial process or procedure by issuing it in bad faith for the purpose of gaining advantage against or to the detriment of his adversary. The abuse is not in the exercise of the right per se, but in the manner or purpose for which such right is exercised. One instance of abuse of process of the Court is when a party institutes a multiplicity of actions on the same subject matter against the same opponent in the same issues. thus, where two processes are between the same parties in respect of the same subject matter, and are actions or processes in which common questions of law and facts arises or the alleged right to relief are in respect of or arises out of the same transaction or series of transactions, suit or process filed later in time would constitute an abuse of process. See NYAH V NOAH (2007) 4 N.W.L.R. (PT 1024) P. 320; N.I.W.A. VS S.T.B. PLC (2008) 2 N.W.L.LR (PT. 1072) P. 483; ALI V. ALBISHIR (2008) 3 N.W.L.R (PT. 1073) P. 94; DUMEZ (NIG) PLC V UBA PLC (2006) 3 N.W.L.R (PT. 1000) P. 515 and OGOEJEOFO V OGOEJEOFO (2006) 3 N.W.L.R (PT 966) P.205. See also UMEH V IWU (2008) 8 N.W.L.R (Pt. 1089) P. 255 at P. 243 Paragraphs D-H per Chukwuma-Eneh, J.S.C.
As stated earlier in the course of this Ruling, upon arraignment before the lower court, the Appellant/Applicant applied for bail which was refused. He then filed an appeal against the refusal of the lower court to grant him bail and prayed that the Ruling of the lower court thereon be set aside. Instead of pursuing the appeal, he filed this motion seeking that he be granted bail pending determination of the said appeal. The affidavit filed in support of the application at the lower court and that filed in support of the instant appeal raise the same or common question of law and facts. In other words, the relief sought in the substantive appeal and that in the instant application is the same and arise out of the same transaction. A determination of this application will pre-empt or invariably lead to a determination of the issues of facts and law that will arise in the substantive appeal. That being so, the instant application being later in time amounts to an abuse of judicial process.
Having found that this application is an abuse of judicial process, the proper Order to make in circumstance, in my view, is that of dismissal. Consequently, I hereby Order that the Appellant/Applicant motions dated the 06/08/2010 and filed the 09/08/2010 wherein he seeks an Order of this Court admitting him to bail pending the determination of his appeal against the Ruling of the lower court dated 27/07/2010 refusing him bail, be dismissed. It is hereby dismissed being an abuse of judicial or Court process.
UWANI MUSA ABBA AJI, J.C.A.: I was privilege to read in draft the ruling of my learned brother H. M. Tsammani JCA, just delivered and I agree with his reasoning and conclusion that the application, the subject of the present ruling in as abuse of judicial Process.
The Appellant along with others whose names were struck out in this application were arraigned before, the lower court on offences bordering on Federal Inland Revenue. The Appellant applied for bail pending trial which application was refused by the trial court. The Appellant aggrieved, appealed against the said decision refusing him bail. While the appeal was pending, the Appellant by a motion on notice filed on the 9th/8/10 prayed the court for an order admitting him to bail upon such, terms and conditions as this Hon. Court may deem fit to impose pending the determination of his appeal.
A careful perusal of the Appellant’s Notice and Grounds of Appeal filed on the 4th/8/10, at page 3 paragraphs 4(i) and (ii) shows that the reliefs are the same with the relief how being sought by the motion filed on the 9th/8/2010, which is the subject of this ruling. In effect, the main appeal seeks to set aside the ruling of the lower court delivered on 27th/7/2010, which denied the Applicant bail, and the Applicant brought the instant motion seeking the same relief as in the main appeal as against pursuing the main appeal. If the present application is granted, it will go to decide the relief sought in the substantive appeal.
It is clear therefore that the Appellant application for bail pending trial which was refused by the lower court, the subject of the substantive appeal, and the present application seeking for bail pending the determination of the case is the same thing as a determination of the present application will also determine the main appeal pending before this court. This therefore makes the subsequent application an abuse of judicial process. I agree with my learned brother, Tsammani, JCA that the case of Mohammed Vs Olawumi (1993) 4 NWLR (Pt. 287) 254 which was relied upon in the case Orji Vs. FRN (2007) 13 NWLR (Pt. 1050) 55 @ 70 are not on all four with the facts and circumstance of this appeal and are clearly distinguishable which makes them inapplicable to the present circumstance of this case.
Generally, abuse of court process contemplates multiplicity of suit between the same parties in regard to the same subject matter and on the same issues to institute an action during the pendency of another suit claiming the same relief as an abuse of court process and the only course open to the court is to put a stop to suit. It does not matter whether the suit is on appeal, the subsequent action would constitute an abuse of process. The attitude of the courts is to strike out filed in abuse of process.
Abuse of court process simply, in practical sense, denote a situation where a party has instituted a multiplicity of suit against the same opponent in respect of the same subject matter and on the same issue. This manner of using court process which is obviously lacking in bonafide leads to the irritation and annoyance of the other party and thus impedes.
CHIDI NWAOMA UWA, J.C.A.: I read in advance the Ruling delivered by my learned brother H.M. Tsammani, JCA. I agree that the application seeking an Order admitting the applicant to Bail pending the determination of this appeal against the ruling of the lower court refusing him bail be and is also dismissed by me.
Appearances
Adetunji Oso Esq., For Appellant
AND
I.M. Salihu (Miss) For Respondent
