DOWELL SCHLUMBERGER NIGERIA LIMITED v. MR. NOAH ANIEKAN
(2012)LCN/5825(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 3rd day of July, 2012
CA/PH/103/2010
RATIO
“It is the law that regular and legitimate use of court process, although with bad intention does not amount to abuse of court process.” Per GALINJE, J.C.A.
“My duty at this juncture is to decide whether the notice of appeal herein is an abuse of court process. In order to do so it is pertinent to set out what constitutes an abuse of court process. In OGOEJEOFO v. OGOEJEOFO (2006) 25 NSCQLR 58 at 67, the Supreme Court per Mahmud Mohammed JSC. Set out what an abuse of court process is in the following words:- “It is recognized that the abuse of the process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issue.” see OKORODUDU v. OKOROMADU (1977) 3 SC 21. It is therefore very clear that an abuse of court process consists in the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary and interfere with the administration of justice such as instituting different actions between the same parties simultaneously on the same subject matter. It also consists of repetition of litigation on the same subject matter that have been settled by the courts. See AFRICAN REINSURANCE CORPORATION v. JDP CONSTRUCTION NIG LTD (2003) 13 NWLR (pt.838) 609 at 635 paragraph G – H, OKAFOR V. ATTORNEY GENERAL ANAMBRA STATE (1991) 6 NWLR (pt.200) 659. However in PRIEST v. UNION AGENCY 174 TENN. 304, it was held that regular and legitimate use of the court process, although with bad intention is not an abuse of court process.” Per GALINJE, J.C.A.
“The right to be heard is a two edged sword. The plaintiff as well as a defendant in a case have a right to be heard timeously. Event though both parties must be heard the court is not a slave to time that must wait indefinitely for a party to decide when to present his own case. For to delay the hearing of a case deliberately is an abuse of court process which in turn defeats justice. No reasonable tribunal or court will allow a case before it to drag on indefinitely. See NEWSWATCH COMMUNICATIONS LTD V ALHAJI ALIYU IBMHIM ATTA (2006) 26 NSCQLR 438, (2006) 4 SC (PT.11) 114. Fair hearing lies in the procedure followed in the determination of the case and not in the correctness of the decision. It is synonymous with trial and implies that every reasonable and fair minded observer who watches the proceedings should be able to come to the conclusion that the court has been fair to all the parties. In the instant case, the appellant has been accorded a reasonable opportunity of being heard and in the manner prescribed under section 36 of the 1999 Constitution of Nigeria, and for no satisfactory explanation it failed and/or neglected to calf its last witness for several years. It cannot therefore be heard to complain about lack of fair hearing. See MAGNA MARITIME SERVICES LTD. & ANOR v. S. A. OSEJU & ANOR (2005) 4 NWLR (PT.945) 517; (2005) 22 NSCQLR 295 at 320. The action of the lower court in foreclosing the appellant’s case is in accordance with Order 30 rule 11(2) of its rules. This is in accord with the expression, “‘fair hearing.” For fair hearing means a trial conducted in accordance with all the legal rules formulated to ensure that justice is done to the parties in a case.” Per GALINJE, J.C.A.
“There are so many case law and precedents that clearly frown on proliferation of issues. In IYANDA v LAMBA (2003) 8 NWLR (pt.801) 267 at 284 paragraph C – E, this court per Onalaja said:- “Though an issue under the rules of brief writing may encompass one, or two or three grounds of appeal in one issue, but it is incompetent and inelegant to formulate more issues than the grounds of appeal as the appellate courts deprecates and frown on proliferation of issues more than the grounds of appeal.” See NWANKO V. F.R.N (2003) 4 NWLR (pt.809) 1 at 25 paragraph D – E, IBRAHIM V. INEC (1999) 8 NWLR (PT. 614) 334, ISHIE V. MOWANSO (2000) 13 NWLR (PT. 684) 279, OYEKAN V. AKINRINWA (1996) 7 NWLR (PT. 459) 128. The law however is trite that where there is proliferation of issues, the court is at liberty to formulate its own issues or select among the issues, one that is relevant to the ground of appeal as such proliferation does not render the appeal incompetent. It is therefore appropriate that the court seized with that appeal determines same on the merit.” Per GALINJE, J.C.A.
Before Their Lordships
MUSA DATTIJO MUHAMMADJustice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJEJustice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYEJustice of The Court of Appeal of Nigeria
Between
DOWELL SCHLUMBERGER NIGERIA LIMITEDAppellant(s)
AND
MR. NOAH ANIEKANRespondent(s)
PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment): The Respondent in this appeal was an employee of the Appellant, a company registered in Nigeria and carries on the business of Oil servicing and other ancillary contracts.
On the 7th of July, 1999 the Respondent aforesaid was involved in a major industrial accident in which he sustained injuries on his left hand at the Appellant’s Eleme Grading Plaint. He was hospitalized for quite sometime.
On the 6th of July, 2002 the respondent was disengaged from the services of his employer through a letter dated the same date which declared him redundant. In reaction to the letter of disengagement, the respondent by a writ of summons filed on the 12th of May, 2004 at the Rivers State High Court, claimed against the appellant the following reliefs:-
“1. A declaration that the callous, unjust and inhuman disengagement from the employment of the plaintiff by the defendant is unjust, wrongful and therefore null and void.
2. A declaration that the plaintiff is entitled to reinstatement with full payment with effect from 6th December, 2002 when the plaintiff was served with the letter of redundancy by the Defendant until judgment in this suit in given.
3. The sum of N50,000,000 (Fifty Million Naira) as reasonable damages for the personal injuries suffered by the plaintiff while on duty on the 7th July, 1999 in the defendant’s premises and due to defendant’s negligence.”
Pleadings were filed, amended and exchanged and the case was set down for trial. The respondent herein, as plaintiff at the lower court, called only one witness who adopted his written testimony and the 24 exhibits in support. Thereafter he closed his case.
The appellant’s two witnesses that were listed for defence were called and they adopted their testimonies. Thereafter, the appellants brought a motion dated 7/11/2008 and filed on the 10/11/08 in which it sough for leave to file additional witness deposition of Tunde Adebayo. The Court heard that application and refused it. That refusal led to an appeal by the Appellant herein. However, the lower court allowed the appellant to file the additional witness deposition when the objection raised by the respondent against the filing of the witness deposition was withdrawn. Instead of calling the additional witness, the appellant decided to pursue the appeal which it filed. The appeal finally heard by this court and was accordingly dismissed on the 14/01/2010 on the ground that it was an abuse of court process.
In the interim, the appellant failed and/or refused to call its last witness, despite several adjournment and several warning by the lower court that it would close the appellant’s case if its last witness was not produced.
Finally on the 16th February, 2010 the appellant’s application for further adjournment was refused and the appellant’s case was foreclosed in accordance with Order 30 Rule 11 (2) of the High Court of Rivers State (Civil Procedure) Rules 2006. The present appeal is against the order of foreclosure. The notice of appeal dated 24/2/2010 and filed on the 25/2/2010 contains one ground of appeal.
Parties filed and exchanged briefs of argument. Two issues have been formulated on behalf of the Appellant for determination of this appeal. They read thus:-
“i. Whether the learned trial judge in pre-emptorily foreclosing the appellant from further giving evidence in the suit exercised his discretion judicially and judiciously and not to occasion a miscarriage of justice to the appellant.
ii. Whether having regard to the circumstances of this case, the foreclosure of the appellant from further giving evidence in the suit amounts to a denial of the appellant’s right to fair hearing.”
Mr. G. B. Ukiri learned counsel for the respondent issued a notice of preliminary objection to the competence of the appeal, which he argued at pages 4 – 10 of the respondent’s brief of argument. Thereafter, one issue only is formulated for determination of this appeal on behalf of the respondent. This issue, is hereunder reproduced as follows:-
“(i) whether the Learned trial judge execised its discretion to close the case of the appellant violated the appellant’s right to fair hearing”
It is trite that where there is a preliminary objection to the competence of an appeal, such objection must be heard and determined before the appeal in considered. I will therefore proceed to consider the preliminary objection first.
The preliminary objection against the competence of present appeal is founded on the following grounds:-
“(i) This appeal is a gross abuse of the process of court in that the appellant is merely using the same to frustrate the determination of suit No. PHC/802/2004 and to further circumvent the directive of this Honourable court given on 14/1/2010 in CA/PH/519/2009 for the conclusion of suit No.PHC/802/2004
(ii) There is no validly filed notice of appeal as:
(a) the purported notice of appeal, exhibits “DNSL 1”, on pages 81 – 83 of the records was merely an exhibit to the motion for stay of proceedings filed on 25/2/2010.
(b) On the face of exhibit “DNSL 1″, there is no evidence of assessment and payment of any filing fees.
(c) A community reading of the solitary ground of appeal and its particulars thereof show that at the very best, it is of mixed law and fact, prior leave of court is, therefore required to file the said Notice of appeal.”
These grounds of objection in themselves are argumentative as they are self explanatory. However, Mr. U. B. Ukiri, learned counsel for the respondent/objector argued that since this court had in appeal No.CA/PH/519/2009 which was dismissed on 14/01/2010 advised parties to go back to the trial court for the continuation of the trial that has been stalled because of the appeal, the present appeal by the appellant, despite that advice, constitutes an abuse of court process. In a further argument, learned counsel submitted that the appeal is completely frivolous as it is intended to vex, frustrate and irritate the adverse party. In aid, learned counsel cited the cases of CBN V. AHMED (2001) 11 NWLR (PT.724) 369 at 409 paragraphs B – C, TOMTEC NIG. LTD. V. FHA (2009) 18 NWLR (PT.1173) 358 at 377 paragraphs E – G. Finally learned counsel urged this court to summarily dismiss the appeal for constituting an abuse of court process.
On the notice of appeal, learned counsel argued that the notice of appeal marked exhibit “DNSL 1” at page 83 of the Record of Appeal is only an exhibit to motions on pages 77 – 87 and it bears no assessment of fees. This being so, learned counsel submitted that it is not a valid notice of appeal, and the appellant’s reliance on this notice of appeal in preparing its brief of argument has rendered the appeal incompetent. Still in argument, learned counsel submitted that because the appellant formulated two issues from the single ground of appeal on the purported notice of appeal, the brief of argument is rendered incompetent and should be struck out. Learned counsel urged the court to strike out the brief and dismiss the appeal.
Lastly, learned counsel argued that the sole ground of appeal is of mixed law and fact and the failure of the appellant to obtain leave to appeal is fatal to the appeal. In aid learned counsel cited section 25 of the Court of Appeal Act and section 242 of the Constitution of the Federal Republic of Nigeria. Also cited in support are authorities in BOWAJE V. ADEDIWURA (1976) 6 S.C. 143 at 146 – 147, AFRIBANK (NIG.) PLC V. KWARA (2006) 5 NWLR (PT.974) 619 at 636 – 637, paragraph F – C.
Learned counsel has also canvassed argument in support of his complaint that the appellant has argued two purported appeals together. This complaint did not form part of the grounds upon which the preliminary objection was issued. It can therefore not be smuggled into the submission of learned counsel in support of the preliminary objection. It is hereby discountenanced.
In reply to the issue of abuse of court process, Mr. Dinwoke, learned counsel for the appellant submitted that considering the facts of the case, this appeal does not in any way constitute an abuse of the process of this court as the appellant is merely exercising its genuine right of appeal. Learned counsel urged this court to discountenance the submissions of the learned counsel for the respondent as lacking factual and legal basis.
On the validity of the notice of appeal, learned counsel draw the court’s attention to the Supplementary Record of Appeal which was transmitted through motion on notice dated 26/10/11 and filed on 27/10/11 as exhibit A. According to the learned counsel the Supplementary Record so transmitted in the notice of appeal bears the assessment of fees.
In a further argument learned counsel submitted that there is no law that prohibits the formulation of two issues from one ground of appeal and that since the two issues formulated by him arose from the sole ground of appeal, they are competent.
On the submission by the learned counsel for respondent that the sole ground of appeal is of mixed law and fact for which the leave of court is required before the notice of appeal is filed, learned counsel for the appellant submitted that the lone ground of appeal on the notice of appeal filed on the 25/2/10 is a ground of law alone as such the leave of either the lower court or this court is not required before same is filed. In aid learned counsel cited BOARD OF CUSTOMS V. BARAW (1982) 10 S.C. 48, OLARENWAJU V. OGUNLEYE (1997) 2 NWLR (PT.485) 12 at 21 paragraphs G – H, METAL CONSTRUCTION (WA) LTD v. MIGLIORE (1990) NWLR (PT.126) 299, OGBECHIE V. IBEKWE (1986) 2 NWLR (PT.70) 370.
My duty at this juncture is to decide whether the notice of appeal herein is an abuse of court process. In order to do so it is pertinent to set out what constitutes an abuse of course process. In OGOEJEOFO v. OGOEJEOFO (2006) 25 NSCQLR 58 at 67, the Supreme Court per Mahmud Mohammed JSC.
Set out what an abuse of court process is in the following words:-
“It is recognized that the abuse of the process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issue.”
see OKORODUDU v. OKOROMADU (1977) 3 SC 21. It is therefore very clear that an abuse of court process consists in the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary and interfere with the administration of justice such as instituting different actions between the same parties simultaneously on the same subject matter. It also consists of repetition of litigation on the same subject matter that have been settled by the courts. See AFRICAN REINSURANCE CORPORATION v. JDP CONSTRUCTION NIG LTD (2003) 13 NWLR (pt.838) 609 at 635 paragraph G – H, OKAFOR V. ATTORNEY GENERAL ANAMBRA STATE (1991) 6 NWLR (pt.200) 659. However in PRIEST v. UNION AGENCY 174 TENN. 304, it was held that regular and legitimate use of the court process, although with bad intention is not an abuse of court process.
Now, in the instant case, was there a decision by the lower court in which a party could be aggrieved. From the proceedings before the court, there was an application by the Appellant for adjournment to call its last witness. There was objection by the adverse party. In its ruling, the court did not only refuse the application, but went on to close the appellant’s case. There was therefore a decision capable of giving rise to this appeal. Even though it may be speculated that the intention of the appellant is to further delay the determination of the case at the lower court. That remains a speculation and no more.
There is no multiplicity of appeals against the same party and the same subject matter before this court, as the previous appeal was entirely on a different subject matter. It is the law that regular and legitimate use of court process, although with bad intention does not amount to abuse of court process.
The respondent’s counsel has admitted in argument at page 6 of the respondent’s brief of argument that this court advised parties to go back to the trial court for the continuation of the trial that has been stalled because of the appeal. This was only an advice and not an order of this court. It is clearly not binding on the parties to this appeal, especially when that advice was given in appeal in which judgment had since been delivered. I have therefore not found evidence of abuse of the process of this court by the Appellant, and so I hold.
On whether the notice of appeal was properly filed and the correct fees paid, Mr. Dinwoke, Learned counsel for the appellant drew this court’s attention to the Appellant’s motion which was filed on the 27/10/11. This motion which was subsequently granted by this court, conveyed the notice of appeal as supplementary record of this appeal. I have sighted a notice of appeal on which assessment of necessary fees was properly endorsed. It is therefore not correct that this appeal is incompetent by reason of the failure of the appellant to pay the required fee for filing of the notice of appeal.
However the argument of the learned counsel for the appellant that there is no law that prohibits a party from formulating two issues from a ground of appeal is canvassed out of ignorance. There are so many case law and precedents that clearly frown on proliferation of issues. In IYANDA v LAMBA (2003) 8 NWLR (pt.801) 267 at 284 paragraph C – E, this court per Onalaja said:-
“Though an issue under the rules of brief writing may encompass one, or two or three grounds of appeal in one issue, but it is incompetent and inelegant to formulate more issues than the grounds of appeal as the appellate courts deprecates and frown on proliferation of issues more than the grounds of appeal.”
See NWANKO V. F.R.N (2003) 4 NWLR (pt.809) 1 at 25 paragraph D – E, IBRAHIM V. INEC (1999) 8 NWLR (PT. 614) 334, ISHIE V. MOWANSO (2000) 13 NWLR (PT. 684) 279, OYEKAN V. AKINRINWA (1996) 7 NWLR (PT. 459) 128. The law however is trite that where there is proliferation of issues, the court is at liberty to formulate its own issues or select among the issues, one that is relevant to the ground of appeal as such proliferation does not render the appeal incompetent. It is therefore appropriate that the court seized with that appeal determines same on the merit. That is what I shall do in the instant appeal.
Finally I am of the firm view that the sole ground of appeal is a ground of law alone, By the provision of section 25 of the Court of Appeal Act and section 242 of the Constitution of the Federal Republic of Nigeria, the Appellant does not require the leave of either the lower court or this court to file this appeal.
On the whole, I find no merit in the preliminary objection which I hereby overrule accordingly. Now, I will proceed to determine the main appeal. In doing so, I will adopt the sole issue formulated by the respondent since it seems to be in conformity with the sole ground of appeal and it is adequate enough to determine the real issue in controversy. Even at the risk of repetition, I hereby reproduce the said issue hereunder as follows:-
“Whether the trial court’s exercise of its discretion to close the case of the Appellant violated the appellant’s right to fair hearing.”
Mr. Nelson Dinwoke, learned counsel for the appellant submitted on this issue that the invocation by the trial judge of his power to foreclose the appellant from further giving evidence in the suit before the trial court on the account of the delay the matter has suffered in court, cannot by any stretch of imagination be said to have been a judicial and judicious exercise of the court’s discretion, as such delay was not occasioned by either the appellant or its counsel. In a further argument, learned counsel submitted that the lower court, descended into the arena by making reference to an earlier appeal in the same case and such reference influenced the court’s decision to foreclose the appellant’s case. Finally, learned counsel urged this court to hold that the learned trial judge was in error when he made the order of foreclosure which has deprived the appellant the right to fair hearing as provided for under section 36 of the 1999 Constitution of the Federal Republic of Nigeria.
Mr. E. B. Ukiri, learned counsel for the respondent in his argument submitted that the appellant’s right to fair hearing was not breached. According to the learned counsel, the lower court acted in the spirit of Order 30 Rule 11(2) of the Rivers State High Court (Civil Procedure) Rules 2006 which was primarily promulgated to aid efficient and speedy disposal of cases pending before the courts. In support thereof learned counsel cited OLAMIJAN V. OYEWOLA (2008) ALL FWLR (PT.399) 503 at 530 – 531 AND PRINCE AROJOYE V. UBA LTD & ANOR. (1986) 2 NWLR (PT.20) 101 at 111 paragraph H. In conclusion, learned counsel urged this court to dismiss the appeal.
The appellant’s reply brief only highlighted areas where the appellant’s counsel thought the respondent misrepresented some facts. Nothing much changed the position of the appellant.
From the facts of this case, it would appear that the appellant herein created conditions which led to inordinate delay in the disposal of the case at the lower court. The suit at the lower court commenced on the 12th May, 2004. It is still pending there in 2012 a period of 8 years. After the conclusion of the respondent’s case, the appellant through several applications and two interlocutory appeals, failed to continue with its case despite several adjournments granted to it to do so by the court. The frustration is expressly set in the ruling of 16th February, 2010 at page 63 of the record of this appeal as follows:-
“The records do show that on 29th October, 2009, the defendants were given this as their last opportunity to call this witness, inspite of all the red herring drawn by the defendant’s counsel by tracing the dates that the court did not sit this is indeed the day that the court has made to be their last opportunity. Inspite of that they have sent the witness out of the jurisdiction and counsel in talking glibly about circumstances beyond the defendant’s control when they realized that being their employee if they Order him to come back to appear in court he must obey, first as he obeyed when they asked him to go….”
It is on this note the lower court closed the appellant’s case. It is even instructive that the witness that was required to appear in court is an employee of the Appellant who sent him away because it did not attach much importance to the case in court. I am satisfied that the appellant was given all the right to be heard in this case by the lower court. The right to be heard is a two edged sword. The plaintiff as well as a defendant in a case have a right to be heard timeously. Event though both parties must be heard the court is not a slave to time that must wait indefinitely for a party to decide when to present his own case. For to delay the hearing of a case deliberately is an abuse of court process which in turn defeats justice. No reasonable tribunal or court will allow a case before it to drag on indefinitely. See NEWSWATCH COMMUNICATIONS LTD V ALHAJI ALIYU IBMHIM ATTA (2006) 26 NSCQLR 438, (2006) 4 SC (PT.11) 114. Fair hearing lies in the procedure followed in the determination of the case and not in the correctness of the decision. It is synonymous with trial and implies that every reasonable and fair minded observer who watches the proceedings should be able to come to the conclusion that the court has been fair to all the parties. In the instant case, the appellant has been accorded a reasonable opportunity of being heard and in the manner prescribed under section 36 of the 1999 Constitution of Nigeria, and for no satisfactory explanation it failed and/or neglected to calf its last witness for several years. It cannot therefore be heard to complain about lack of fair hearing. See MAGNA MARITIME SERVICES LTD. & ANOR v. S. A. OSEJU & ANOR (2005) 4 NWLR (PT.945) 517; (2005) 22 NSCQLR 295 at 320. The action of the lower court in foreclosing the appellant’s case is in accordance with Order 30 rule 11(2) of its rules. This is in accord with the expression, “fair hearing.” For fair hearing means a trial conducted in accordance with all the legal rules formulated to ensure that justice is done to the parties in a case.
For all I have said, the sole issue upon which this appeal is determined is resolved against the appellant and in favour of the respondent.
Having so resolved the sole issue against the appellant, this appeal is hereby dismissed. The respondent is entitled to the cost of this appeal which I assess at N60,000.00 against the Appellant.
M. DATTTJO MUHAMMAD, J. C.A.: I agree
T. O. AWOTOYE, J.C.A.: I entirely agree.
Appearances
N. O. DinwokeFor Appellant
AND
E. B. Ukiri with O. A. ArakaFor Respondent
