H.R.H. OBA E.A. SAIKI & ORS v. ESHEVESHE NIG. LTD. (2013)

H.R.H. OBA E.A. SAIKI & ORS v. ESHEVESHE NIG. LTD.

(2013)LCN/6034(CA)

In The Court of Appeal of Nigeria

On Friday, the 19th day of April, 2013

CA/B/361/2006

RATIO

ABUSE OF COURT PROCESS: WHAT CONSTITUTES ABUSE OF COURT PROCESS

JUSTICES

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

Between

1. H.R.H. OBA E.A. SAIKI
2. MALLAM AUDU BALOGUN
3. MALLAM IBAYI MOMOH
4. HON. E.O. BOKESHIMI
5. HON. A.A. AMUNE
6. ALH. S.A. UKANA
(SUED FOR AND ON BEHALF OF IGARRA COMMUNITY) Appellant(s)

AND

ESHEVESHE NIG. LTD. Respondent(s)

SIDI DAUDA BAGE, J.C.A (Delivering the Leading Judgment): This is an appeal against the Ruling of Hon. Justice A. Edodo-Eruaga, sitting at the High Court of Edo State, at Igarra Judicial Division delivered on 8th day of February, 2006 in which the Appellants were the Defendants. The Notice of Appeal filed by the Appellants to initiate this action is dated the 21st of February, 2006 and contains two (2) Grounds of Appeal.
The background facts in this action are as follows:
1.1. By a statement of claim dated 26th dry of September, 2005 the Plaintiff in Suit Number HIG/7/2005 claimed two reliefs against the Defendants, namely Trespass and injunction in respect of a piece or parcel of land meant for quarry, lying, situate and being at Sasaro Village in Edo State.
1.2. The Defendants filed a preliminary objection challenging the jurisdiction of the High Court of Justice Igarra to entertain the suit based on section 251 (n) of the 1999 constitution of the Federal Republic of Nigeria.
1.3. The trial Court after receiving argument from both parties struck out the claim for want of jurisdiction on 25/10/2005.
1.4. Aggrieved by the ruling the Plaintiff filed a Notice of Appeal against the said ruling dated the 31st day of October, 2005.
1.5. Before the parties were invited to settle records, the Plaintiff filed a notice to withdraw the Appeal on the 15th day of November, 2005.
1.6. After withdrawing the appeal, the Plaintiff commenced another suit against the Defendants, this time claiming three reliefs, namely; Declaration of title, trespass and injunction in respect of the piece of parcel of land.
1.7. The Defendants/Appellants herein filed a Motion on Notice asking the court to dismiss the claim as an abuse of court process. The Trial Court after receiving argument from both parties struck out the application as lacking in merit, upon which they appealed to this Honourable Court.
The Appellants brief of argument, settled by Chief S.S. Obaro, dated the 19th of January 2007, filed on the 21st of February 2007, but deemed as properly filed on the 8th of May, 2012. The Respondents brief of argument was settled by D.A. Alegbe Esq., dated the 39th of May 2012, filed on the 25th of September, 2012, but deemed as properly filed on the 27th of September, 2012.
From the two (2) Grounds of Appeal contained in the Notice of Appeal, the Appellants have formulated the following two (2) issues for determination as follows:
(1) Whether or not the learned trial Judge was right in holding that the institution of this suit (i.e. HIG/15/2005) did not constitute an abuse of court process?
(2) Whether or not the learned trial Judge was right in assuming jurisdiction in this suit notwithstanding that she had declined jurisdiction in Suit No. NIG/7/2005, a suit between the same parties in respect of the same subject matter and same issues?
On the other hand the Respondent adopts the issues for determination in Appellants Brief at page 2.
After a careful perusal of the two issues as formulated by the Appellants, and adopted by the Respondent, for ease of the management of the appeal, the two issues can conveniently be determined together and so decided by this court.
Learned counsel to the Appellants in arguing issues No.1 and No.2 submitted that, the institution of the Suit No. HIG/15/2005 had constituted an abuse of the court process relative to Suit No. HIG/7/2005 which Ruling was still valid and subsisting.
Learned counsel submitted further that Appellant who had filed an appeal against the Ruling in Suit No. HIG/7/2005 had withdrawn the appeal under Order 3 Rule 18(2) of the Court of Appeal Rules 2002. Notice of withdrawal filed. The effect on the Ruling originally appealed against by the Respondents (Appellants) is the same, which is that the Ruling remains subsisting and binding on all the parties. See Order 3 Rule 18(5) Court of Appeal Rules 2002. Also see: Edozien V. Edozien (1993) 1 NWLR (Pt. 272) 678 at 699 Para. D. The consequence of a valid withdrawal is that the appeal is deemed to have been dismissed. See: NAL Merchant Bank V. Laff Laferri Ltd. (2005) ALL FWLR (pt. 289) 1396 at 1403 Para E.
Learned counsel further submitted that the learned trial Judge had ruled that she had no jurisdiction in Suit No. HIG/7/2005. The Respondent could not therefore apply to relist the same case or to start the same action de novo in the same court. The learned trial Judge later decided that the Respondents commencement of the case de novo in her court per Suit No. HIG/15/2005 was not an abuse of court process. With respect that is not the correct position of the law. See: Arubo v. Aiyeleru (1993) 3 NWLR (Pt. 288) 126 at 142 paras B – C; Egwu V. Madunkwu (1977) 4 NWLR (pt. 501) 574 at 584; Western Steel Workers Ltd. V. Iron and Steel Workers Union (1986) 3 NWLR (pt. 30) 617 (1986) 2 NSCC 786 at 798.
Learned counsel submitted further that the Respondent legally presumed admission of paragraph 10 of the Appellants Affidavit in support of their application at the lower court, wherein the Appellants deposed that the Respondent deliberately refilled this suit to annoy, harass, embarrass and intimidate them. See: Amaefule V. The State (1988) 2 NWLR 156 at 177, Saraki V. Kotoye (1992) 8 NWLR (pt. 264) 156 of 188 Paras F – H.
Learned counsel further submitted that, it is settled law that once a court has decided an issue (even in the same proceedings) it is functus officio in respect of that issue and cannot reopen the matter or substitute a different decision in place of the one which has been recorded. See: Unakalamba V. Police (1958) 3 FSC 7; Alao V. ACB Ltd. (2000) 79 LRCN 1899 at 1947 Parag D; A.I.C. Ltd. V. NNPC (2005) AII FWLR (Pt. 270) 1945 Para B; Western Steel Works Ltd. V. Iron & Steel Workers Union (Supra); Nwankwo V. Ononoze-Madu (2005) All FWLR (Pt. 289) 1258 at 1265 Paras C – D; Okorodudu V. Okorodudu (1977) 3 SC 21; Abubakar V. Bebeji Oil & Allied Product Ltd. (2007) All FWLR (Pt.362) 1855 at 1894 Paras B-C.
Learned counsel further submitted that the jurisdiction of the court below was successfully challenged on the ground that the subject matter is “Mining Land” which is under Section 251(1)(n) of the Constitution of the Federal Republic of Nigeria 1999, within the exclusive jurisdiction of the Federal High Court. See: Shell Petroleum Development Company Ltd. V. Isaiah (2001) 87 LRCN 1909 ratios 2, 3, 8 and 9; S.P.D.C. Ltd. V. Tiebo VII (2005) ALL FWLR (pt. 265) 990 at 1003 – 1007; C.G.G.(Nig.) Ltd. v. Asaagbara (2000) (pt. 17) 110.
Learned counsel submitted finally that the learned trial judge was functus officio, and cannot ignore her Ruling in that Suit to assume jurisdiction in HIG/15/2005 and we urge this court to hold so.
In reply to all the submissions of learned counsel to the Appellants above, learned counsel to the Respondent submitted that, the trial court struck out the Plaintiff (Respondents) claim in Suit No. HIG/7/2005 for want of jurisdiction. The fact for which the plaintiff claims for trespass and injunction is a land meant for quarrying business. Dissatisfied with the Ruling, the Plaintiff filed a Notice of Appeal Exhibit SO3 dated 30-10-2005. Before the parties were invited to settle records for the appeal, the Plaintiff filed a Notice of Withdrawal of the Appeal Exhibit SO4 dated 14-11-2005 and filed on the 17-11-2005. After the Notice of Withdrawal, the Plaintiff filed a fresh action against the Defendant claiming three reliefs namely, Declaration of Title, Trespass and injunction against the Defendants.
The Defendants filed a Motion on Notice asking the court to strike out and/or dismiss the action as an abuse of court process and that the trial court had in a similar matter declined jurisdiction.
Learned counsel further submitted that though the suit in HIG/7/2005 and the present action had the same parties and the same subject matters, the reliefs were not the same. In the instant case, the Plaintiff asked for declaration of title to land which relief was absent in Suit No. HIG/7/2005. See: Mobil Producing Nig. Ltd. V. Monokpo (2004) 9 WRN 1 at 80 – 81 lines 35 – 40, (2003) 18 NWLR (pt. 852) – Ogoejeofo v. Ogoejeofo (2006) 1 FWLR (pt. 306) 1750 at 1763.
Learned counsel submitted further that, abuse of court process lies in the multiplicity of actions rather than the exercise of the right. Ogoejeofo V. Ogoejeofo (supra).
Learned counsel further submitted that Suit No. HIG/15/2005 is the only one pending in court, appeal in respect of HIG/7/2005 having been withdrawn. Notice of Withdrawal with or without an order of court, appeal shall be deemed to have been dismissed. Suit No. HIG/15/2005 does not therefore constitute an abuse of process. See: N.V. Scheep V. MU “S” ARAZ (2001) FWLR (pt. 34) 543 para C – D.
Learned counsel further submitted that an order of striking out does not put an end to the claim of the party but keeps the claim alive. As a plea of res judicata or estoppels per rem judicata only apply to dismissed case and not to a case struck out. See: Egwu V. Modunkwu (1977) NWLR (pt. 501) 582 at 584 paras D – G.
Learned counsel submitted further that in the instant case Respondent took out a different action bearing a different suit number claiming different reliefs against Defendants/Appellants and did not relist the old action HIG/7/2005. The trial Judge was perfectly right to assume jurisdiction over the claim as filed, the right of the Respondent (Plaintiff) having not been extinguished by an order of dismissal.
Learned counsel submitted further that, it is settled law that where a court lacks jurisdiction the proper order to make is striking out.
A Judgment or an order or court which touches on the competence of an action Vis-‘E0-vis the jurisdiction of court to hear it is a find decision. See: Akinsanya V. UBA (1986) 4 NWLR (Pt. 35) 273; Mbakwe V. R.M.S. Africa (Rhein Naas) (2001) 4 NWLR (pt. 704) 575.
Learned counsel submitted further that it is conceded that it is a correct proposition of the law that a court on disposing off a matter becomes functus officio; it ceases to have legal competence in respect of such matter. In this case, the court ceases to have Legal competence as it relates to suit number HIG/7/2005.
Learned counsel further submitted that, the court having struck out for want of jurisdiction the order did not conclude the right of the parties for all purpose. See: Idoko V. Ogbeikwu (2003) 7 NWLR (pt. 819) 275 of 292 – 293 Paras E – F. Also where a court lacks jurisdiction, the order to strike it out to enable that party commence the action de novo in a competent court of jurisdiction. See: Fasmun Foods Nig. Ltd. V. Shosanya (2006) 40 WRN 138 at 171 Lines 35 – 40; Ibok V. Honesty II (2007) 6 NWLR (Pt. 1029) 55 at 68 – 69 Paras H – A and paras B – C.
Learned counsel submitted further that an order to strike out the suit is not a Judgment on the merit which affects the rights of parties to institute an action on the same subject matter. See: U.B.N. Plc. V. B.M. IMD Ltd. (2001) 13 NWLR (Pt. 731) 517 at 538 paras E – H; Alhaji Ado Ibrahim v. Eldestien (Nig.) Ltd (2002) 1 NWLR (pt. 747) 50 at 72 Paras A – C.
Learned counsel finally submitted that the trial court rightly assume jurisdiction in Suit No. HIG/15/2005. See: Okafor V. Okwonkwo (2002) 17 NWLR (pt. 796) 262 at 295 – 296.
On the part of this court, the submissions of counsel are carefully examined. An absurdity which this court has observed is the absence of the ruling of the trial court in HIG/7/2005, wherein the court had declined jurisdiction in respect of the subject matter which gave rise to Suit No. HIG/15 /2005, from the record of appeal transmitted to this court. However, the rescue mission from the said absurdity could be found both on the Ruling of the trial court in HIG/15/2005 contained on pages 33 – 45 of the records, and on the submissions made by the Respondent in his brief of argument. The learned trial Judge on page 44 of the records particularly paragraph 25 stated as follows:
“Learned counsel to the Defendant/Applicant Chief S.S. Obaro had submitted that this court is functus officio as it had ruled on this matter on the 25/10/2005. It is settled that after a court hears evidence from both sides in a matter, or is taken on the undefended list the matter is said to have been decided on its merit and that court cannot sit on appeal over its own decisions. In the instant matter, pleadings have not been settled and neither has any evidence been taken. The Defendant/Applicant raised preliminary objection before the difference was even filed on the issue of jurisdiction and this court ruled. This cannot be said to be a decision on the merit of the case before court before it was struck out.”
The Respondent in his brief of argument at page 4, paragraph 2.06 stated as follows:
“It is pertinent of this junction to point out that though the suit in HIG/7/2005 and the present action had the same parties and same subject matter, the reliefs were not the same. In the instant case, the Plaintiff asked for declaration of title to land which said relief was absent in Suit No. HIG/7/2005…”
Before going any further, the Respondent has admitted that the Suit No. HIG/7/2005 and the present action HIG/15/2005 had the same parties, and the same subject matter. The only difference is the relief of the declaration of title to the land introduced in the latter suit (HIG/15/2005). The above fact is admitted by the Respondent, it does not require any proof. The law is already trite that, anything admitted, need no further proof. See: Nigerian Bottling Company Plc V. Stephen Oboh (2000) 9 WRN 114; Hauwa Ubudu V. Bulama Abdul Razak (2001) 7 NWLR (Pt. 713) 669; Mohammed Sani Abacha v. The State (2002) 9 MJSC 1; A.G. Fed. V. A.G. Adamawa & Ors. (2002) NSCQR 163; A.G., Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552; N.I.D.B. Ltd. V. Olalomi Ind. Ltd. (2002) 28 WRN 66.

What therefore constitute an abuse of court process? The law is already trite that what constitutes an abuse of court process is the multiplicity of suits or proceedings by the parties in respect of the same subject matter and issues whether in the same court or different courts. See: Adesokan V. Adegorola (1991) 3 NWLR (pt. 293) 297; Okafor V. A. G. Anambra State (1991) 6 NWLR (Pt. 200) 699 at 681; Nnama & ors. v. Nwanebe & Ors. (1991) 2 NWLR (pt. 172) 181; C.O.P.V. Fasehan (1997) 6 NWLR (Pt. 507) Olutinrin V. Agaka (1998) 6 NWLR (Pt. 554) 366.
The point as to what constitutes an abuse of court process was further stressed by the Supreme Court of Nigeria in Kotoye V. Saraki (1992) 9 NWLR (pt. 264) 156, it was said that:
“An abuse of court of process is the institution of multiplicity of actions on the same subject matter against the some opponent on the some issue.”
One can apply the breaks even at this stage, were the Respondent in the present appeal admitted categorically that both parties and subject matter in the two suits, HIG/7/2005 and HIG/15/2005 are the same. The difference is to be found only in an additional relief for a declaration of title to the same land in HIG/15/2005.
Now the question remains, whether the trial court, which consequent upon a considered ruling, had declined jurisdiction over the subject matter, the piece of land, later turn around to assume jurisdiction over the same subject matter, to determine title. The Supreme Court of Nigeria had pronounced on a similar circumstance and maintained neither the Supreme Court nor any other Court for that matter would have no jurisdiction to sit on appeal over its Judgment. The suit leading to this appeal is an abuse of court process. The Supreme Court in the case of Adigun V. the Secretary, Iwo Local Government (1999) 8 NWLR (Pt. 613) 30 at 38-39 stated as follows:
“The claim of the Plaintiffs/Appellants is no more than another futile attempt to have the judgment of this court given on 20th day of March 1987 reversed notwithstanding the ruling of this court given on 14th day of April 1987 to the effect that it had no jurisdiction to do so. This court or any other court for that matter would have no jurisdiction to sit on appeal against the judgment of this court. See section 215 of the constitution of Federal Republic of Nigeria 1979. Consequently, it is equally my view that the suit leading to this appeal is an abuse of process of court and was rightly dismissed by the two courts below.”
I find the instant appeal in all fours with this Supreme Court’s case in Adigun V. The Sec, Iwo Local Government (Supra). In that case, the Supreme Court struck out the suit for lack of jurisdiction on a subject matter. The Appellant brought back the same parties and the same subject matter from the two courts below to the Supreme Court. The apex court maintained that the later suit was an abuse of court process. In the instant appeal, it was exactly similar. The trial court had declined jurisdiction on the subject matter of the dispute on the piece of land. The Respondent as Plaintiff dissatisfied with the ruling of the court, appealed to the Court of Appeal. He again on his own withdrew his appeal at the Court of Appeal. He went back to the same trial court, file another fresh suit against the same parties and the same subject matter, the piece of land which the same court had declined jurisdiction upon previously but now introduced a new relief which hitherto was absent in the first suit, a declaration of title to the land which trial court ruled it had no jurisdiction upon. This no doubt by the decision of the Supreme Court in Adigun’s case (Supra) had amounted to an abuse of court process. The trial court, unfortunately fell into a grave error by assuming jurisdiction on the subsequent suit which is the subject of this appeal.
Also per Belgore JSC (as he then was) in Adigun V. The Sec. Iwo Local Government (Supra):
“What the Plaintiffs are claiming is no more than the original claims that culminated in this appeal that was finally decided in 1987 in this court on 20th day of March, 1997. It seems the suit was meant to pre-empt issuance of a new declaration based on the Report of Bolanle Awe’s Administrative panel. The “accrued right” the Plaintiff claimed was to the effect that only Ogunmakunde Ande Ruling House was the sole Ruling House, a matter finally decided by this court in 1987. If all the new suit was meant to achieve was to maintain Ogunmakunde Ande’s family as the Sole Ruling House, it was certainly on abuse of court process because it disregarded the clear pronouncement of this court that it was not the Sole Ruling House. It is for this reason of abuse of court process that I on 23rd of February, 1999 dismissed this appeal.”
Going by the reasoning of the Supreme Court above, if the relief sought by the Respondent (then Plaintiff) for a declaration of title to the same land, which the trial court had pronounced it had no jurisdiction upon, it was an abuse of court process. The Respondent had chosen the most honourable path after the trial court’s Ruling on HIG/7/2005, to appeal. He did appealed to this court, but later withdrew the appeal. He then went back to the same court to file suit HIG/15/2005. Unfortunately, the trial Judge fell into this serious error by going back to sit on appeal over its own decision on the guise that it only struck out the first suit for lack of jurisdiction. Quite unfortunate again that there was nothing in the record before this court, which showed a new situation restoring such jurisdiction on that court which was initially declined.
On the whole therefore, the two issues argued together in this appeal are resolved in favour of the Appellants and against the Respondent. The Appeal is meritorious and it is hereby allowed.
The Ruling of Hon. Justice A. Edodo-Eruaga of the High Court Edo State, sitting at Igarra in Suit No. HIG/15/2005 delivered on the 8th day of February, 2006 is set aside. Consequentially, the entire Suit No. HIG/15/2006 is hereby struck out by this court.
Parties to bear their own Costs.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, SIDI DAUDA BAGE, JCA. I am in complete agreement with his lordship’s reasoning and conclusions.
I agree that the appeal is meritorious and it is hereby allowed. Accordingly, I too, set aside the ruling delivered on 8/2/2006 by the lower court appealed against. I also abide by the order made in the lead judgment relating to costs.

TOM SHAIBU YAKUBU, J.C.A: The draft of the judgment just delivered by my learned brother, SIDI D. BAGE, JCA, was read by me before now.
I am in complete agreement with the in depth reasoning and conclusion reached by his Lordship, that this appeal has merits and must be allowed.
In support of my Lord, I add a few words of my own. It is amazing that the learned trial judge having first declined jurisdiction over the respondent’s action and struck it out, later made a volt de face and assumed jurisdiction over the respondent’s action when the parties and the subject matter in the earlier and later actions were the same.
Multiciplicity of actions on the same matter may constitute an abuse of the process of the Court. This is mainly so where the action is between the same parties and with respect to the same subject matter.
See: Miss Ifeyinwa Ogoejeofo V. Daniel Chiejina Ogoejeofo (2006) 1 SCNJ 69 at p. 80; Okafor V. Ag. Anambra State (1991) 6 NWLR (pt.200) 659 at 581 per Karibi Whyte, JSC; Doma V. Adamu (1991) 4 NWLR (pt.598) 311; Bena Plastic V. Vasilyer (1999) 10 NWLR (pt.624) 620; Ag. Ondo State V. Ag. Ekiti State (2001) 17 NWLR (pt. 734) 706 at 771; African Re Insurance Corp. V. JDP Construction Nig. Ltd (2003) 13 NWLR (pt. 838) 6 & 9 at pp. 635 – 636.

An abuse of process always involves some bias, malice, some deliberateness, some desire to misuse or pervert the system. – See Edet V. The State (1988) 4 NWLR (Pt.91) 722.

Furthermore “there is said to be an abuse of the process of the court when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent.” per Niki Tobi, JSC in African Insurance Corp v. JDP Constr. Nig. Ltd (2003) 2-3 SC 47.
Therefore, “Succinctly put, abuse of judicial process is misuse of judicial procedure intentionally to feather one’s interest to the detriment of one’s adversary.” per Onalaja, JCA in Timothy Adefula V. Secretary, Ikenne Local Govt. & ors (2002) WRN 68.
“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 judicial process” per Oputa, JSC in Amaefule V. The State (1988) 3 NWLR (Pt. 75) 156 at Pg. 177.
It is for these few words on judicial marble by the above mentioned learned law Lords and the fuller reasons adumbrated in the lead judgment that I, too allow this appeal.
I subscribe to the orders contained in the lead judgment and adopt them, as mine.

Appearances

CHIEF S.S. OBARO with CHIEF S.S. JOSEPHFor Appellant

AND

O.B. UADEFor Respondent