CHIEF RUFUS JAIYEOBA & ANOR v. MRS. OGUNTEMOSO GBADEBO & ORS
(2016)LCN/8586(CA)
n The Court of Appeal of Nigeria
On Wednesday, the 11th day of May, 2016
CA/AK/39/2014
RATIO
COURT: ABUSE OF COURT PROCESS; WHAT AMOUNTS TO AN ABUSE OF COURT PROCESS
The institution of an action during the pendency of another one claiming the same reliefs amounts to an abuse of Court process. As long as the previous action has not been finally determined, the subsequent action constitutes an abuse of Court process. It is not the existence of a previous suit that causes the problem but the institution of a fresh action between the same parties on the same subject-matter when the previous suit has not been disposed of that constitutes the abuse of process. See African Continental Bank Plc v. Nwaigwe (2011) LPELR – 208 per Onnoghen JSC. PER JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
1. CHIEF RUFUS JAIYEOBA
2. CHIEF KUNLE JAIYEOBA
(For himself and on behalf of Jaiyeoba Family of Ilara Mokin) Appellant(s)
AND
MRS. OGUNTEMOSO GBADEBO
MR. S.I AKINLOSOSE
MR. SUNDAY OGUNRIBIDE
MR. ADEKUNLE FATODUN
(For themselves and on behalf of Sao Oluwalokun Family, Ilara-Mokin) Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling delivered on 30th October, 2013 in the High Court of Justice Ondo State sitting at Akure dismissing the action of the Appellants who were plaintiffs in the High Court for being an abuse of Court process.
The Respondents who were Defendants in the action instituted at the High Court had earlier filed an action in the Customary Court of Ondo State in the Ilara-Mokin Customary Court District sitting at Ilara-Mokin claiming for a declaration that they (respondents) are entitled to the Customary Right of Occupancy of the piece or parcel of land at Ojajere (Onikoro) farm Ilara-Mokin and N10,000 damages for trespass.
After service of the processes of the Customary Court on the Appellants particularly the claim against them, the Appellants appeared in that Court. At the next adjournment of the suit at the Customary Court, the Appellants wrote a letter to that Court. In the meantime, they instituted the action which the lower Court dismissed against the same parties that sued them in the Customary Court on the same subject-matter in the
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High Court. Expectedly the Respondents objected to the suit instituted in the High Court by the Appellants on the following grounds:
1. This suit is between the same parties and on the same subject matter with suit. No: ILR/CC/14/2012 which is still pending before Customary Court Ilara-Mokin.
2. The suit No AK/409/12 is an abuse of the process of this Court.”
The preliminary objection was supported by an affidavit to which was annexed, the claim of the Respondents at the Customary Court Ilara-Mokin, a letter from Appellants’ Counsel to the Customary Court Ilara-Mokin seeking for an adjournment of the case, the writ of summons and statement of claim in Suit No: AK/409/2012 filed by the Appellants at the High Court.
The Respondents also filed a written address on the preliminary objection.
The Appellants file a counter affidavit in opposition.
After considering the affidavit evidence and written addresses of learned counsel for both parties the lower Court upheld the preliminary objection of the Respondents and dismissed Suit No: AK/409/2012 filed by the Appellants at the High Court.
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This was what prompted the Appellants to
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approach this Court. On the 13th November 2013 they filed a notice of appeal dated the same day containing four grounds of appeal from which they formulated the following issues for determination:
1. Was it right for the trial Court to grant order/reliefs that were not prayed/sought by the parties?
2. Was there any competing claim of the appellants against the respondents before any Court whatsoever to justify the holding of the trial Court that suit No AK/409/2012 constitutes abuse of process of Court.
3. Whether the Customary Court can adjudicates on a special monetary damages N950,000 and a general damages of N100,000,000 when its power is restricted to claim of N50,000 only.
The Respondents on the other hand formulated the following lone issue for determination:
Whether considering the fact of this case, the trial Court has the jurisdiction to entertain the suit having been aware that the same suit is pending at the Customary Court?
The appeal was contested on the following briefs:
1. Appellants’ brief dated and filed 16th April 2015 settled by Sir Goke Adurota KSJ JP.
2. Respondents brief dated 12th October 2015,
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filed on 13th October 2015 and deemed duly filed and
served on 10th October 2016 settled by B.D Asani Esq.
3. Appellants’ reply brief to Respondents’ brief of argument dated and filed on 19th October 2016 settled by Sir Goke Adurota KSJ JP.
I will determine this appeal on the lone issue formulated by the Respondents notwithstanding the fact that they are not the Appellants because it is more concise and comprehensible.
It was submitted by learned counsel for the Appellants that the lower Court is not empowered by law to grant more than what is sought for by a party.
He pointed out that the Respondents prayed for an order striking out the suit instituted by the Appellants at the High Court.
The order of dismissal of the Suit, it was submitted, was wrong and ought to be set aside.
It was pointed out that it was at address stage that the Respondents’ counsel asked for the order of dismissal of the suit instituted at the High Court.
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It was contended that where a matter is not determined on the merits, the proper order to make is an order striking out the suit. It was further argued that a dismissal of the suit instituted
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in the High Court in this case was a denial of fair hearing contrary to the Constitution FRN 1999. We were referred to Olumesan v. Ogundapo (1996) 2 NWLR (Pt 133) 628 and Dam & Co Ltd v. JMI Ltd (2007) ALL FWLR -1530.
It was submitted that an order of striking out will enable the Appellants to file their action in the appropriate Court of competent jurisdiction.
It was the further contention of the Appellants that what was before the lower Court was not before any other Court within or outside the territorial jurisdiction of the Court.
Learned counsel for the Respondents on his part pointed out that the Appellants instead of defending the action at the Customary Court, Ilara-Mokin and counterclaiming if there was need, proceeded to the High Court to institute a separate suit between same parties on the same subject matter. The Court was referred to Saraki v. Kotoye (1992) 9 NWLR (Pt 264) 156 at 188-189.
It was submitted that the Customary Court and the High Court have concurrent jurisdiction over land matters in the rural area irrespective of any monetary value attached to the land, hence any of the Courts can be approached but the two
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Courts cannot be determining the issue at the same time as this will amount to abuse of judicial process.
It was submitted that once an action had been instituted at the Ondo State Customary Court, Ilara-Mokin the High Court cannot assume jurisdiction.
It was further submitted that the act of the Appellants in instituting Suit No: AK/409/2012 is an abuse of process.
From the record before the Court, the Appellants, it was contended, were aware of the pendency of the suit at the Customary Court Ilara-Mokin before instituting the suit at the lower Court purposely to frustrate the administration of justice in this case. We were referred to Udeoroh v. Nluakonobi (2003) 4 NWLR (pt 811) 643. The Appellants’ counsel, it was further pointed out appeared at the Customary Court, Ilara-Mokin for the Appellants and sought for an adjournment only to file a separate suit at the lower Court.
The Court, it was submitted has a duty to discourage such unethical act in order to put an end to litigation.
On the argument of learned counsel for the Appellants that the lower Court ought to have struck out Suit No: AK/409/2012 having found the suit to be an abuse
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of process, it was submitted that that submission was wrong in law. The consequence of abuse of process, it was submitted, is a dismissal of the suit that constitutes the abuse. We were referred to Arubo v. Aiyeleru (1993) 3 NWLR (Pt 280) 126 at 142.
The institution of an action during the pendency of another one claiming the same reliefs amounts to an abuse of Court process. As long as the previous action has not been finally determined, the subsequent action constitutes an abuse of Court process. It is not the existence of a previous suit that causes the problem but the institution of a fresh action between the same parties on the same subject-matter when the previous suit has not been disposed of that constitutes the abuse of process. See African Continental Bank Plc v. Nwaigwe (2011) LPELR – 208 per Onnoghen JSC.
Paragraphs 5(c), (d) and (e) of the affidavit in support of the objection to the suit instituted by the Appellants in the High Court reproduced immediately hereunder read as follows:
“(c) That the Defendants/Appellants instituted Suit No: ILR/CC/14/12 on 8th November 2012, against the Claimants/Respondents at the Customary Court
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Ilara-Mokin and they were served with these processes immediately. A Photo copy of the said Civil Summon and Claim is attached hereto as Exhibit ?A?.
(d) That the 1st Claimant/Respondent came to the Court on the 22nd November, 2012 while the 2nd Claimant/Respondent counsel wrote letter for an adjournment, A photo copy of the said letter of adjournment dated 22nd November, 2012 is attached here to as Exhibit ?B’
(e) That the Claimants/Appellants filed a Writ of Summons in this Suit No. AK/409/12 on the 13th December, 2012. A photo copy of the said claim is attached here to as Exhibit ‘C’.”
The lower Court found the counter affidavit incompetent.
There is no appeal against that finding. Paragraphs 6 and 12 of the said counter affidavit reproduced immediately hereunder read as follows:
“6. That our relief is very much different
12. The substance and the end result are not the same due to difference in parties as indicated on the two processes in AK/409/2013 (sic) and ILR/CC/14/2012 in the Customary Court, Ilara-Mokin.”
As I pointed out earlier the lower Court held that the counter affidavit of the Appellants was
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incompetent. As that finding has not been challenged, it subsists and the position of the law is that the affidavit in support of the objection is unchallenged and the lower Court was supposed to deem the averments admitted by the Appellants. It is in the light of the foregoing that I endorse the finding of the lower Court at page 143 of the record of appeal as follows:
“From the facts as averred by the defendants/applicants in their affidavit in support of this application, which facts the claimants/respondents never bothered to countermand, it is settled that the defendants/applicants were the first to file their claim before the Ilara-Mokin Customary Court in Suit No. ILR/CC/12/12 on 08/11/2012 and served same on the claimants/respondents. In other words, the claimants/respondents had notice of the pendency of the said suit at the Ilara-Mokin Customary Court before they rushed to this Court to file their Suit No AK/409/12 on 13/12/2012, a date learned counsel for the 2nd claimant/respondent in his letter for adjournment in Suit No. ILR/CC/14/12 suggested that the said suit be adjourned to for hearing. It has become glaring that the claimants/respondents
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rushed to this Court to filed (sic) Suit No. AK/409/12 in order to frustrate the hearing of Suit No. ILR/CC/14/12 at the Ilara-Mokin Customary Court in what one can term a flagrant abuse of the process of this Court.”
I also endorse the finding and holding of the lower Court at page 144-145 of the record of appeal thus:
“In the circumstances of this application, I am of the view and so hold that the filing of Suit No. AK/409/12 by the claimants/respondents in this Court despite their knowledge of the pendency of Suit No. ILR/CC/14/12 at the Ilara-Mokin Customary Court on the same subject matter is an abuse of the process of Court and an attempt to frustrate the course of justice at the Ilara-Mokin Customary Court that is seize (sic) of the matter and an attempt to bring the administration of justice to disrepute. In my own view, Suit No. AK/409/12 filed by the claimants/respondents constitutes an abuse of judicial process and ought to be terminated forthwith to bring sanity back to the judicial process.
Since nothing precludes the claimants/respondents from filing whatever process they deem fit at the Customary Court, Ilara-Mokin to ventilate
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their grievance over the land in question, it is advised that they return to the said Court.
Consequently, this application succeeds and Suit No. AK/409/2012, filed by the claimants/respondents is hereby dismissed forthwith.”
Although the application was for the striking out of the suit instituted in the High Court for being an abuse, learned counsel for the Respondents at address stage seemed to have realized that the proper order ought to be an order dismissing the suit. He at that stage urged the Court to dismiss the suit instead. The lower Court in its ruling dismissed the suit filed in the High Court. That was the proper order to make when the Court found that there was an abuse of Court’s process. See Arubo v. Aiyeleru (supra).
Learned counsel for the Appellant’s argued that an order striking out the suit merely would enable them to file a fresh suit. I cannot see how. The suit was not struck out for want of jurisdiction. If it were an order striking it out would have been the appropriate order.
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It appears to me from all that I have stated above that the only issue for determination should be resolved in favour of the Respondents.<br< p=””
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I therefore resolve the lone issue in favour of the Respondents.
In the circumstances the Appeal is dismissed.
SOTONYE DENTON-WEST, J.C.A.: I have had a preview of the lead judgment of my learned brother, Hon. Justice James Shehu Abiriyi, JCA with which I agree.
For the same reasons contained in the lead judgment, I also endorse the finding and holding of the lower Court at page 144 ? 145 of the Record of Appeal.
As plethora of cases have shown that the abuse of Court processes may lie in either 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 issues. See: Saraki vs. Kotoye (1992) NWLR (Pt. 264) 156, Okorodudu vs. Okorodudu (1977) 3 S.C. 21, Oyegbola vs. Esso West Africa Inco. (1996) 1 ALL NLR 170; Okafor vs. A.G. Anambra
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(1991) 6 NWLR (Pt. 200) 659; Alhaji Umar Musa Yar-Adua & Ors. Vs. Alhaji Atiku Abubakar, GCON & Ors. (2008) 12 SC. (pt. 1).
From the record of Civil Appeal before this Court, it was glaring that the Appellants after being served process of the Customary Court, entered appearance in Court where they even sought for an adjournment only for them to go ahead to institute another action in Court on the same subject matter and with same parties at the State High Court. An act which I would term as a flagrant abuse of the Court process.
In the light of the above I hereby also dismiss this appeal.
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MOHAMMED AMBI-USI DANJUMA, J.C.A.: I had read in draft the lead judgment of my learned brother, Abiriyi, JCA and agree with his lordship that the appeal should be dismissed.
The Suit was an abuse of Court process as it cannot be concurrently pursued in the High Court when same subject matter and parties were competently the subject of an action pending at the Customary Court. A land matter. The dismissal of the action on the basis of abuse of Court process was correct. It wasn?t a dismissal based on want of
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jurisdiction; which if it were, would have been an order striking out the suit.
That not being the situation, as rightly held by the trial Court and upheld in the lead judgment. I too concur that the appeal fails.
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Appearances
Sir Goke Adurota KSJ JP with K. AnifaloyinFor Appellant
AND
B. D. Asani with V. Adeleke (Mrs)For Respondent
