JOSEPH AJALI & ANOR v. E.C.P. OKURI-EZE & ORS
(2013)LCN/6679(CA)
In The Court of Appeal of Nigeria
On Friday, the 20th day of December, 2013
CA/E/307/2009
RATIO
WHEN AN ALLEGATION OF ABUSE OF COURT PROCESS BY MULTIPLICITY OF SUIT WILL FAIL
An allegation of abuse of court process by multiplicity of suits will fail if the suits in question do not have similar parties, subject matter and issues. These three similarities must co-exist for such an allegation to be sustained. See UMEH V. IWU (supra). So that if one does not exists the allegation must fail. Per EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES
ADZIRA G. MSHELIA Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
1. JOSEPH AJALI
2. BARNABAS ANYIM (For themselves and on behalf of Oshoghi family of Amaiyi Akaezeukwu) Appellant(s)
AND
1. E.C.P. OKURI-EZE
2. ODIEGWU AJALI
3. OGBONNAYA NWANGWU
4. OGBONNAYA OKORO Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): On the 13th July 2006, the appellants herein as plaintiffs commenced a civil suit No CC/KZ/8/2006 in the Customary Court of Akaeze in Ebonyi State against the 1st set of respondents herein as defendants. On the 29th of November 2006, the 1st defendant wrote to the President of Ebonyi State Customary Court of Appeal at Abakaliki applying for the transfer of the said suit No CC/KZ/8/2006 from Akaeze Customary Court to any other Customary Court for hearing because the defendants feared or suspected that one of the members of the Court, Mr Moses O. Chukwu was likely to be biased against them and might influence other members of the Court to become equally biased against them. On the 30th November 2006 when the case came up for hearing, the defendants through their Counsel drew the attention of the Customary Court to the letter. The Customary court considered the letter and ruled that it will continued hearing the case until an order is sent to it from the President of the Customary Court of Appeal telling it what to do. Following this ruling, the defendants withdrew from participation in the proceedings. The Customary Court then proceeded with the hearing of the case that same day. After taking the evidence of PW1, the matter was adjourned to 28th December 2006 for continuation of hearing.
On the 30-1-2007 by motion ex-parte the defendants applied to the High Court of Ebonyi State at Ivo Division in Suit No HSK/6m/2007 for-
“AN ORDER granting leave to the applicant to apply for an order of certiorari to do the following:-
(a) To command the Chairman and members of the Customary Court, Akaeze to bring to this Honourable Court its records and orders of 30th November, 2006 and subsequent proceedings in respect of this Suit No. CC/KZ/8/2006 to be reviewed and quashed.
(b) AN ORDER staying further proceedings by the respondents in suit No. CC/KZ/8/2006 pending the determination of this application.
2. AND for such further order or other orders as this Honourable Court may deem it to make in the circumstances.”
On the 31-1-2007 the said High Court granted the application in the following terms –
“It is hereby Ordered as follows –
(1) That the application for leave to apply for an order of certiorari dated 30/1/2007 be and is hereby granted in terms of the motion paper.”
The defendants had also filed a motion on notice praying for “an order of certiorari to issue against the respondents, reviewing and equasluing their records and orders of 30th November 2006 and all subsequent proceedings in respect of suit No CC/KZ/8/2006”. This motion on notice was listed as suit No HSK/10m/2007.
On 24-1-2007, the 1st respondent herein, commenced, as plaintiff, Suit No HSK/1/2007 against the appellants herein, as representing themselves and the family of Ndibe Osuo of Amaiyi Akaezeukwu Akaeze in the High Court of Ebonyi State at Ivo Division, claiming for –
1. “Declaration that the plaintiff is entitled to the Customary Right of Occupancy and user of that piece or parcel of land known as and called “Aliebo land” lying, situate and being at Amaegunta – Akaezeukwu, Akaeze within jurisdiction of this Honourable Court
2. Perpetual injunction restraining the defendants by themselves, agents, privies workmen or whatever assigns from trespass into the said land.”
On 19-2-2007, the respondents herein as defendants in the Akaeze Customary court Suit No CC/KZ/8/2006 applied by motion on notice in CCA/9m/2007 to the Customary Court of Appeal for ;
1.”FOR AN ORDER of this Honourable Court transferring suit no. CC/KZ/8/2006 pending before the Customary Court, Akaeze to another Customary Court for hearing and determination.
2. AND FOR such further order or orders as this Honourable court may deem fit and proper to make in the circumstance.”
While the Application in Suit No HSK/10m/2007 was pending, proceedings in CC/KZ/8/2006 continued at Akaeze Customary Court and final judgment was delivered therein by that court on 15-2-2007 in the following terms-
1. The plaintiffs are the lawful occupier/possessor/owner and inherited all the piece or parcel of lands and its immediate environs known as and called Ogbakume (which include Ososukwa, Ebonkwu and Ebo-efi situate and lying at Amiyi Akaezeukwu from their Late father and therefore entitled to the Customary right of occupancy over same.
2. The sale of the aforesaid land or any part thereof in No.1. of the claim to the 1st defendant by the 2nd, 3rd and 4th defendants is null and void.
3. The defendants unlawful entry into the aforesaid land amounted to trespass.
4. This court makes an order of perpetual injunction restraining the defendants by themselves, agents, workmen, assigns and or privies from further entry into the aforesaid land.”
On 24-1-2008, the respondents to the application in suit No HSK/10m/2007, (appellants herein filed a notice of preliminary objection praying for –
1. “AN ORDER dismissing this suit against the Respondents/Applicants for constituting an abuse of court process on the ground that the subject matter is already being litigated upon in suit Nos. CC/KZ/8/2006, HSK/1/2007 and CCA/9m/2007.
2. AND FOR such further order(s) as this Honourable court may deem fit to make in the circumstance.”
It is listed as motion No. HSK/2m/2008. The trial court considered the affidavit evidence of both sides and arguments of Counsel to both sides and delivered its ruling on 9-4-2009 overruling the preliminary objection and dismissing the said motion No. HSK/2m/2007. On the 28-4-2009, the appellants herein applied to the trial High court for an order granting them “leave to file and serve notice of appeal against the ruling of the Honourable court delivered on the 9th April, 2009 in Notice No: HSK/2m/2008”.
On 11-5-2009, the same appellants herein also applied by motion on notice to the same high court for –
1. “AN ORDER staying proceedings in the hearing of Motion No. HSK/10m/2007 pending the determination of the appeal filed against the ruling of the Honourable court delivered on 9th April, 2009 in Notice No. HSK/2m/2008.
2. AN ORDER Deeming the Notice of Appeal attached to this application as having been properly filed and served, the necessary fees having been paid.
3. AND FOR SUCH FURTHER ORDER(s) as the Honourable court may deem fit to make in the circumstance.”
Both applications were heard and granted as prayed by the trial High court on the 17th June 2009. The notice of appeal by which this appeal No. CA/E/307 /2009 was commenced was deemed as properly filed by the order of the trial High court of 17-6-2009. The said notice of appeal contains 2 grounds of appeal.
The record of the proceedings of the trial court were compiled and received in this court, as the endorsement on its face shows, on 14-8-2009. On 17-9-2009 the appellants brief dated same day was filed. Following its service on the respondents and their refusal or failure to file their brief of argument, the appellants, by motion on notice dated and filed on 1-8-2011, accompanied by an affidavit to which was annexed the record of service of the appellants’ brief on the respondents, applied for an order that appeal No. CA/E/307/2009 be set down for hearing on the appellant’s brief as the respondents have failed to file their brief. The application was heard and granted by this court on 18-4-2013 and the appeal set down for hearing on the 17-9-2013. It was subsequently heard on 23-10-2013 after this court had satisfied itself from its record of proof service of hearing notice on the respondents that the appeal will be heard that day, that the respondents were served with such hearing notice.
The appellants raised the following issues for determination –
l. “Whether going by Exhibits marked ‘D’, ‘E’ and ‘F’ attached to the affidavit in support of the Notice of preliminary objection, Motion No. HSK/10m/2007 does not amount to an abuse of the process of court.
2. Whether in the circumstance of Motion Nos. HSK/10m/2007 and CCA/9m/2007 the order of the trial court in Motion No. HSK/6m/2007 was not obtained per incuriam.
3. Whether the learned trial judge was right to have relied on the oral submissions of the 1st respondent in his address in place of the affidavit evidence of the parties in Motion No. and HSK/2m/2008 placed before the court.”
Considering the judgment of the trial court, the grounds of appeal, the issues for determination in the appellants’ brief and the arguments thereon, I think that the three issues raise one central issue for determination, to wit, whether the trial court was right to have overruled and dismissed the appellants’ preliminary objection to motion No. HSK/10m/07.
I will proceed straightaway to determine this issue.
The judgment of the trial court from which this appeal arose is contained in two and one quarter type-written pages of single spacing at pages 124, 125 and 126 of the record of this appeal. Two of the pages of the judgment contain a recap of the content of the notice of preliminary of objection and the addresses of both counsel during the argument of the objection . The decision of the trial court after the said recap is contained in 12 lines as follows- “I have carefully considered the objection of learned counsel to the 2nd and 3rd respondents applicants as well as the submissions of counsel to the 1st applicant/respondent. I am satisfied that the subject matter of the suits/motions and parties therein are not the same and where they were, the issues for trial and determination differed. Besides, it is on record that this court granted the 1st applicant/respondent leave on 31-01-2007 prior to Motion No. HSK/10m/07 which leave has the effect of staying further proceedings in Suit No. CC/KZ/8/2006. In the light of the foregoing, the preliminary objection by counsel to the 2nd and 3rd respondents/applicants is hereby overruled. Notice No. HSK/m/2007 is therefore dismissed. I make no order as to costs.”
The appellants by their notice of preliminary objection contend that in view of the facts that the proceedings in CC/KZ/8/2006, the subject of the motion No. HSK/10m/2007, had been concluded and determined by the Akaeze Customary Court, that suit Nos. HSK/1/2004 and CCA/9m/2007 are the same with motion No. HSK/10m/2007 in terms of parties, subject matter issues and reliefs, Motion No HSK/10m/2007 which seeks a certiorari to quash the orders and proceedings in suit No. CC/KZ/8/2006 then pending at Akaeze Customary court is an abuse of court process. It is obvious from the part of the judgment reproduced above that the trial court overruled the objection because it held that it was satisfied that “the subject matter of the suit/motions and parties therein are not the same and where they were, the issues for trial and determination differed.” This reason was one of the grounds for the objection as argued at the trial court by Counsel for the appellants. I have calmly and carefully read exhibits D, E and F annexed to the affidavit in support of the objection. They contain the record of the proceedings of the respective matters in CC/KZ/8/2006, CCA/9m/2007 and HSK/1/2007. I agree with the holding of the trial court that the said matters are not the same with motion No. HSK/10m/2007 in certain respects. Between motion No. HSK/10m/2007 and suit No. HSK/1/2007, the parties and subject matters are different. The parties in HSK/1/2007 are Chief E.C.P. Okuri-Eze as plaintiff v. I. Mr Joseph Ajali, 2. Mr. Barnabas Anyim (For themselves and as representing Ndibo Osuo family of Amaiyi-Akaezeukwu Akaeze) as defendants while the parties in HSK/10m/2007 are 1. E.C.P. Okuri-Eza, 2. Odiegwu Ajali, 3. Ogbonnaya Nwangwu, 4. Ogbonnaya Okoro as applicants v. 1. The Chairman and members of the Customary Court, Akaeze, 2. Joseph Ajali, 3. Barnabas Anyim (For themselves and on behalf of Oshoghi family in Amaiyi Akaezeukwu as respondents. The parties in the two cases are clearly different.
The subject matter in each of the two cases are different. The subject matter of motion No. HSK/10m/2007 is the proceedings in suit No. CC/KZ/8/2006 pending at Akaeze Customary Court for declaration of title and other reliefs relating to a parcel of land called Ogbakume” situate and lying at Amaiyi, Akaezeukwu. The subject matter of suit No. HSK/1/2007 is a parcel of land called “Aliebo” land lying and situate at Amaegunta – Akaezeukwu.
The reliefs sought for in the two cases are obviously different. The relief sought for in motion No. HSK/10m/2007 is for an order of certiorari to quash the order and proceeding in suit No CC/KZ/8/2006 pending at Akaeze Customary Court. The reliefs sought for in Suit No. HSK/1/2007 is for declaration of Customary right of occupancy to the land referred to above and an order of perpetual injunction restraining the defendants from trespassing into the said land.
The issues raised by the two cases are totally different. The issues in HSK/10m/2007 were whether the Akaeze customary court was right to continue proceedings in suit No CC/KZ/8/2006 when the defendants had applied for transfer of the proceedings to another Customary court, which application was yet to be considered by the President Customary Court of Appeal and whether there was real likelihood that the judges of Akaeze Customary court will be biased against the defendants. The issue in suit No HSK/1/2007 is whether the plaintiff is entitled to the customary right of occupancy to the suit land and to an order of perpetual injunction against the defendants.
There is no doubt that the parties and subject matter in suit No CCA/9m/2007 are the same with those in HSK/10m/2007. But the reliefs and issues are different. The relief in CCA/9m/2007 is for an order transferring suit No CC/KZ/8/2006 from Akaeze customary court to any other customary court. This is clearly different from the relief in HSK/10m/2007 already referred to above. The issue in CCA/9m/2007 is whether there is real likelihood that the judges of Akaeze Customary court will be biased against the defendants. The issues in HSK/10m/2007 went beyond that issue to include whether the Order to continue proceedings in suit No CC/KZ/8/2006, pending the outcome of the defendants application to the President of Ebonyi State Customary Court of Appeal for transfer of the suit to another customary court was valid.
It is obvious that the parties in CC/KZ/8/2006 and those in HSK/10m/2007 are the same. But the subject matters, reliefs and issues are different. The subject matter of CC/KZ/8/2006 is a parcel of land called “Ogbakume”. The reliefs in that case are for declaration of title to the right of occupancy of the land and other reliefs in respect of the land. The issue in that case is whether, the plaintiffs as against the defendants are the owners of the title to the right of occupancy of the said Suitland. I have already highlighted the subject matter, reliefs and issues in HSK/10m/2007. They are clearly different from those n CC/KZ/8/2007.
It is beyond argument that the determination of an allegation of abuse of process by multiplicity of suits must start with a consideration of whether the suits are similar in terms of parties,subject matter and issues. Where the parties, subject matter and issues in the pending multiple suits are similar the machinery of the court is said to be abused in the sense that it has been put to a use other than the attainment of justice. The multiplicity of the same case against the same party over the same subject matter and issues no doubt increases his financial expenditure and takes more of his time and attention and deprives him of other useful engagements. This is a very high opportunity cost that is clearly reasonably foreseeable as likely to result from such multiplicity of similar actions against a person. A reasonable person must know that this impact is likely to result from the multiplicity of suits. The law which presumes that every person is reasonable will treat him as having intended such adverse consequences on his opponent and therefore regard such employment of the court machinery as lacking in bona fide as it has the obvious effect of irritating, diminishing or oppressing the other party. This is the philosophy underlying the almost unanimous view that such multiplicity of similar suits against the same party constitutes an abuse of court process. Examples of such decisions include UMEH & ANOR V. IWU & ORS (2008) 2-3 SC (PT.1) 135, SARAKI V. KOTOYE (1992) 9 NWLR (PT.264) 156 AT 186-189 AND MESSRS NV SCHEEP & ANOR V. THE MV “S. ARAZ” & ANOR (2000) 12 SC (PT.1) 164.
An allegation of abuse of court process by multiplicity of suits will fail if the suits in question do not have similar parties, subject matter and issues. These three similarities must co-exist for such an allegation to be sustained. See UMEH V. IWU (supra). So that if one does not exists the allegation must fail. Therefore, the allegation in our present case could not have been sustained in the light of the above highlighted dissimilarities between the suits mentioned. The trial court was right to have overruled the objection on the ground of multiplicity of suits.
The second ground for the objection as is obvious from the argument of Learned Counsel for the appellants at the trial court is that the proceedings in CC/KZ/8/2006 before Akaaeze Customary Court had been concluded and final judgment delivered as is contained in exhibit H attached to the affidavit in support of the notice of preliminary objection. Learned Counsel then submitted that the said decision “having not been appealed against since delivered on 15-2-2007, the said application for an order of certiorari filed on 7-2-2007 in an anticipation of an unfavourable judgment of a customary court amounts to an abuse of process because several applications seeking to transfer same failed.”
The arguments of Learned counsel for the respondents at the trial court in relation to the above argument of Learned counsel for the appellants is stated at pages 99 of the record of this appeal thus –
“before filing Motion No. HSK/10m/07, they had earlier obtained the leave of this court via Exparte Motion No. HSK/6m/2007 which was heard and granted on 31/01/2007. Urges the court to look at the ruling of this court delivered on 31/01/2007. Counsel states that in the order made, this court stayed proceedings of Customary Court, Akaeze in respect of suit No. CC/KZ/8/2006. Adds that the Applicants/Respondents were duly served with the said order of the court. States that the judgment of Customary court Akaeze attached to the affidavit of the Respondents/Applicants (Exhibit ‘H’) is said to have been given on 15/02/2007 in disobedience of the order of this High Court and they are now coming through the back door to quash the same order of this court thereby approbating and reprobating at the same time.”
The trial court in its judgment did not make a clear pronouncement on these arguments. It simply stated in its judgment that “it is on record that this court granted the 1st applicant/respondent leave on 31-1-2007 prior to motion No. HSK/10m/2007 which leave has the effect of staying further proceedings in suit No. CC/KZ/8/2006.” I do not think that this terse pronouncement of the trial court addresses the question raised in the above submission of learned counsel for the appellants before it. Implicit in this submission is the question whether an application for an order of certiorari to quash the record, orders and all subsequent proceedings in a suit pending before a customary court can be validly brought.
It is beyond argument that a party who desires to stop an inferior court or tribunal from continuing with the trial of a case pending before it on ground of lack of fair hearing shall apply for the issue of the writ of prohibition and not the writ of certiorari. This is because certiorari can only issue to quash completed judicial or quasi judicial acts or proceedings. Certiorari is not the appropriate writ to stop the further proceedings of an inferior or lower court or tribunal. Furthermore it cannot issue to quash future or anticipated acts, decisions or proceedings. The proper and competent process to stop the further proceedings in a case and stop the operation of all processes therein is the writ of prohibition. The said application for the issue of a writ of certiorari was premature and incompetent. This view is supported by the Learned Author Fidelis Nwadialo in Civil Procedure in Nigeria (2000 Edition) P. 1055
Let me come back to the matter of whether the subject matter of motion No HSK/10m/2007 had ceased to exist by the conclusion of the proceedings in CC/KZ/8/2006. Since motion No. HSK/10m/2007 seeks to quash the proceedings pending in CC/KZ/8/2007 and it could not do so before the proceedings was concluded by the court, with the rendering of a final judgment determining on merit the right of the parties, is there anything pending any longer as part of the facts that constitute the cause for the action in suit NO. CC/KZ/8/2006 as at the date it was filed? I do not think so. What useful purpose will the continuation of suit No HSK/10m/2007 serve?
It has become over taken by events and rendered irrelevant, academic and vain. It amounts to an abuse of court process to insist on the continuation of proceedings in a matter that would yield no practical and useful result, that would amount to a sheer waste of the court’s time and the time and resources of the other party. The proper course of action is to strike out the said motion No. HSK/10m/2007 as it was no longer competent before the trial Court. Courts have jurisdiction to entertain live issues and not spent issues or academic and vain questions. See IMEGWU V. OKOLOCHA (2013) 9 NWLR (PT 1359) 347.
The question of what effect the leave to apply for an order of certiorari had on the proceedings and the validity of the judgment in CC/KZ/8/2006 is a matter that can be properly raised in a separate action challenging the proceedings and judgment in CC/KZ/8/2006. I therefore hold that the trial court was wrong not to have upheld the objection on the ground that final judgment having been rendered by the customary court in the case, it will amount to abuse of court process to continue with the application seeking to stop the Akaeze Customary Court from proceeding with the case. The trial court was therefore wrong to have overruled and dismissed the preliminary objection of the appellants.
For the above reasons, I hold that this appeal has merit and is hereby allowed. The decision of the High Court of Ebonyi State at Ivo division overruling and dismissing the appellants’ preliminary objection that Motion No. HSK/10m/2007 is an abuse of process of court is hereby set aside. The said motion No HSK/10m/2007 pending before the said High court is hereby dismissed for abuse of court processes.
I make no order as to costs.
ADZIRA GANA MSHELIA, J.C.A.: I have had the opportunity of reading in draft the judgment read by my learned brother Agim, JCA. For the reasons contained in the said judgment, I too will dismiss the appeal and it is hereby dismissed. I subscribe to the order of costs as assessed.
IGNATIUS IGWE AGUBE, J.C.A.: I agree.
Appearances
O.B. Akinola EsqFor Appellant
AND
For Respondent
