PASTOR OKECHI ONYENFORO v. ELDER IKECHI MARK OWUNNA & ORS
(2018)LCN/12013(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 25th day of July, 2018
CA/OW/216/2017
RATIO
ACTION: WHERE ACTION IS AN ABUSE OF COURT PROCESS
“The following circumstances have been held to amount or not, to abuse of Court process: Multiplicity of actions on the same subject matter between the same parties is abuse. [Okafor v. A. G., Anambra State (1991) NWLR (Pt. 200) 659 at 681]. It will still be an abuse even where there exists a right to begin the actions [Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) p. 156 at pp. 188 – 189]. Actions which amount to an abuse of Court process may vary but they are generally to the annoyance of the opponent. [Okafor v. A. G., Anambra State (1991) 6 NWLR (Pt. 200) 659 @ 681 referred to]. Clearly the multiplicity of the processes of Court activated by the 1st Defendant against the claimants in this suit delay the proceedings in this suit to the annoyance and chagrin of the claimants. This annoyance was clearly averred by the Claimant in paragraph 4(e) of their counter affidavit.
It is not the exercise of a right, per se, that constitutes an abuse of Court process but its improper and irregular exercise. It is the tinge of malice, the perversion of the system of proper administration of justice by the use of a lawful procedure for the attainment of unlawful results.” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
COURT AND PROCEDURE: THE PURPOSE OF PRELIMINARY OBJECTION
“The cases are clear as to the purpose of a preliminary objection in the litigation process. It is a challenge to the competence of a Court’s process, be it an appeal, a suit or motion, as the case may be, which primary objective is to terminate the proceedings at the stage the objection is raised. See in this regard the case of KENTE V. ISHAKU (2017) LPELR 42077 (SC) and particularly the case of AKPAN V. BOB (2010) LPELR 376 (SC) wherein the Supreme Court per Ibrahim Tanko Muhammad, JSC; said thus: – ‘An objection in law portrays a formal opposition of an objector against the happening of an event which has already taken place or is about to take place now or in the future and the objector seeks the Court’s immediate ruling or intervention on the point. A preliminary objection seeks to provide an initial objection before the actual commencement of the thing being objected to.'” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
COURT AND PROCEDURE: WHAT IS CERTIORARI PROCEEDINGS
“It is no doubt true that a certiorari proceeding is different from an appeal. However both an appeal and a certiorari proceeding are alternate modes of having a High Court exercise its supervisory jurisdiction in respect of decisions of Courts and/or bodies carrying out judicial or quasi- judicial acts, lesser in status than the High Court. See in this regard see the cases of NWAOBOSHI V. THE MILITARY GOVERNOR OF DELTA STATE; ACB PLC V. NWAIGWE (2011) 45 NSCQR (Pt. II) 1230 and ZENITH BANK PLC V. OMORODION (2013) LPELR 20755 (CA)” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
PASTOR OKECHI ONYENFORO Appellant(s)
AND
1. ELDER IKECHI MARK OWUNNA
2. MR. UGWUZOR DIMGBA OWUNNA
3. CHIEF CHINTUA DIMGBA OWUNNA
4. MR. UCHECHI IRONDI OWUNNA
5. MR. ONYEKACHI IRONDI OWUNNA
(For themselves and as representing Umuomasi Family inOhuru Amangwu Villiage in Obingwa L.G.A.)
AND
1. THE CHAIRMAN OBINGWA LOCAL GOVERNMENT COUNCIL
2. THE REGISTRAR OF DEEDS,MINISTRY OF LANDS AND SURVEY,ABIA STATE
3. THE PROBATE REGISTRAR, HIGH COURT OF ABIA STATE. Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment):
The appeal is against the ruling delivered on 7/3/2017 by the High Court of Justice, Abia State presided over by Hon. Justice L.T.C Eruba (hereafter to be simply referred to as ‘the lower Court’ and ‘learned trial Judge’ respectively). The matter in which the lower Court delivered the ruling appealed against was in a preliminary objection brought by the Appellant (who was the 1st Defendant in the substantive case) in which he sought for the adjournment to the said substantive sine die and which the lower Court struck out.
The events leading to the filing of the Notice of Preliminary Objection in which the lower Court delivered its ruling now appeal against by the Appellant would appear not to be in dispute; and are to the effect that the Respondents commenced Suit No. HOB/36/2013 before the High Court of Abia State holden at Obingwa Division, against the Appellant and others in relation to land situate at Ohuru Amangwu Village in Obingwa Local Government Area. The Appellant was the 1st Defendant in the said action.
The Respondents filed a statement of claim in the action and the process was accompanied by a list of their proposed witnesses and the written statements of the said witnesses. These processes were duly served on the Appellant. Before the Appellant responded to the processes served on him, seven cases including Suit No. HOB/36/2013 were transferred from the Obingwa Division of the lower Court, to the Aba Division of the said Court and with a directive that the Administrative Judge in Aba Judicial Division should assign the cases in question (including Suit No. HOB/36/2013) to any Court in the said Division. By a letter dated 21/2/2014 and received on 24/2/2014, addressed to the Ag. Chief Judge of Abia State, the Appellant subsequently protested against the transfer of Suit No. HOB/36/2013 and some of the others cases in which he was a party included in the list of cases transferred by the said Ag. Chief Judge.
Later, still in Suit No. A/33/2014 (which Suit No. HOB/36/2013 had become upon its transfer in compliance with the transfer order by the Ag. Chief Judge and its assignment to another Court in Aba Judicial Division), the Appellant on 18/3/2014 commenced a certiorari proceeding (i.e. Suit No. HU/54/2014) seeking for the quashing of the transfer order in question. The action was brought against Hon. Justice S.A. Nwakanma, the Ag. Chief Judge and 12 Others (and they include the learned counsel to the Respondents in the instant appeal; a Chief Magistrate Grade 1; and the Commissioner of Police, Abia State). The Respondents in the further prosecution of their case (i.e. Suit No. A/33/2014) filed a motion for judgment therein.
The hearing notice in respect of the said motion having been served on the Appellant, he filed before the lower Court a Notice of Preliminary Objection dated 15/5/2014 on 5/6/2014. Therein, the Appellant prayed for an order: ‘Adjourning Suit No. A/33/2014 sine die’ on the grounds that: –
(i) That this honourable Court lacks the jurisdiction to hear and determine this suit as the same is the same as a subsisting suit pending before the High Court Obingwa Division in Suit No. HOB/36/2013 between Owunna & 4 Ors vs Onyeforo & 3 Ors over issues connected to interest in land situate in Obingwa LGA.
(ii) That the purported transfer of suit No. HOB/36/2013 to Aba Division is not within the contemplation of the provisions Section 47 of the Abia State High Court Law and that the same is being challenged this (sic) claimant in Suit No. HU/54/2014 between Pastor Okechi Onyeforo vs Hon Justice S.A. Nwakamma & 17 Ors pending at High Court No 5 Umuahia.
(iii) That ex-facie the motion paper, this honourable Court lacks the jurisdiction to hear and determine this motion and the substantive suit as the same is the same as a subsisting suit pending before the High Court Obingwa Division in Suit No. HOB/36/2013 between Owunna & 4 Ors vs Onyeforo & 3 Ors over interest in land constituted and situate in Obingwa Local Government Area in terms of the provisions of the Rules of this Court and the High Court Law, Laws of Abia State.
(iv) That this suit cannot subsist while Suit No. HU/54/2014 is still subsisting and pending as the proceedings in this suit may render nugatory the proceedings and judgment in Suit No. HU/54/2014 aforesaid.
The ruling which the lower Court gave on the preliminary objection of the Appellant and which he has now appealed against is not too long; I therefore consider it expedient to re-produce the same. It goes thus: –
RULING
First defendant brought this amorphous notice of preliminary objection that ended up asking for this suit to be adjourned sine die. The substance of his objection is that this court lacks the jurisdiction to hear and determine this suit as it is the same with Suit No. HOB/36/2013 pending before the High (sic) Obingwa Division over issues affecting interest in land situate at Obingwa Judicial Division.
He further contended that the purported transfer of HOB/36/2013 from High Court Obingwa to High Court Aba Division is not within the contemplation of the provisions of Section 47 of the Abia State High Court Law. And that Suit No. HU/54/2014 between Pastor Okechi Onyenforo v. Hon. Justice S.A. Nwakanma & 17 others was brought to challenge the transfer order, which suit is pending at High Court No. 5 Umuahia.
First defendant further contended that this suit cannot subsist while Suit No. HU/54/2014 pending at Umuahia is still subsisting as this suit may render nugatory the proceedings and judgment in the Umuahia Suit aforesaid.
The Notice of Preliminary Objection dated 15/5/2014 was filed on 5/6/2014. It has a 6 paragraphed affidavit in support with some annexures including the Administrative order by the Acting Chief Judge, a Certiorari Process, Counsel’s letter for C.T.C of the Letter of Transfer, Forwarding Letter by which a certain number of case files were transferred from Obingwa Division to Aba Judicial Division, writ of summons in Suit No. HOB/17/2009 and more.
Obi Emuka Esq. learned counsel to the First Defendant filed a written address by which he argued the notice of preliminary objection.
In reaction to this Objection, Claimants filed a counter affidavit of 6 paragraphs on 12/04/2016. This was accompanied with a Reply Address filed on behalf of the Claimants by Sir. P.C. Uzoaga learned Counsel for the Claimants. The 1st Defendant followed up with a Further Affidavit of 8 paragraphs filed on 5/5/2016. And a Reply on Points of law dated 4/5/2016.
The summary of the facts in this Preliminary Objection is that following an Application to the Acting Chief Judge of Abia State, the said Chief Judge on 23/1/2014 transferred this suit amongst others from Obingwa Judicial Division to Aba Judicial Division.
Whilst at Obingwa the suit number of this case was HOB/36/2013. Upon the transfer to Aba Judicial Division it was changed to A/33/2014. The parties and subject matter remained the same. The case is still the same. It is only venue for the trial that has changed that is, territorial jurisdiction.
Irked by this transfer, the 1st Defendant filed Suit No. HU/54/2014 against the Chief Judge of Abia State by way of judicial review seeking to quash the administrative order of transfer on grounds that the Acting Chief Judge acted contrary to the law in transferring this case from Obingwa to Aba. The first Defendant then brought this Preliminary Objection to posit that the substantive suit to wit Suit No. A/33/2014 cannot go on while Suit No. HU/54/2014 challenging the order of transfer is pending. He therefore asked for Suit No. A/33/2014 to be adjourned sine die to await the result of suit No. HU/54/2014.
Neither the Applicant nor the Respondent formulated any issue for determination of the Preliminary Objection. Given the facts exposed in the affidavit and the argument of counsel in their respective addresses, I believe that the issue the calls for determination in this case is whether this Notice of Preliminary Objection is competent.
The issue of the competence of the Notice of Preliminary Objection is raised in paragraph 4(e) of the counter affidavit where the Respondent pointedly averred that the Objection is an abuse of the process of Court. Incidentally both in the Further Affidavit of the 1st Defendant and their reply on points of law this issue was not addressed. The Applicants failure to respond this issue must be seen as an admission of same.
This Preliminary objection challenges the jurisdiction of this Court to hear and determine the substantive suit. To do so the 1st defendant cited and relied upon Madukolu v. Nkemdilim (2001) WRN 46. Contending that the substantive suit came to this Court without complying with the due processes of law in that the administrative order by which the suit was transferred to this court is contrary to law.
Meanwhile the same defendant filed Suit No. HU/54/2014 to quash the order transferring this suit from Obingwa High Court to Aba High Court. The parties in these two processes are the same. The relief they are seeking are all to the effect that the transfer process is defective and that this suit remains in Obingwa Judicial Division to be heard and determined as suit No. HOB/36/2013.
As it is the 1st Defendant is using two different processes in two different Courts to achieve one purpose. This to my mind is abuse of process of Court. The machinations of the defendant in this case are clearly captured in the following authorities. Where two similar processes are used in respect of the exercise of the same right such as cross appeal and respondent’s notice, a case of abuse of the process of Court is founded (Umeh v. Iwu (2008) All FWLR (Pt. 418) 362, (2008) NWLR (Pt. 1030) (SC); Agwasim v. Ojichie, (2004) All FWLR (Pt. 212) 1600; (2004) 10 NWLR (Pt. 882) 613 (SC) referred to and adopted]. Global Soap and Detergent Industries Ltd. v. NAFDAC (2011) All FWLR (Pt. 599) 1025 @ 1048 para. E 1049 Para. a. (CA)].
In the Instant lase, Certiorari and Preliminary objection are two processes used by the 1st Defendant. They are similar in the sense that they are using the same grounds of lack of jurisdiction to attack a transfer decision. The intended result is the same and the parties are the same.
The following circumstances have been held to amount or not, to abuse of Court process: Multiplicity of actions on the same subject matter between the same parties is abuse. [Okafor v. A. G., Anambra State (1991) NWLR (Pt. 200) 659 at 681]. It will still be an abuse even where there exists a right to begin the actions [Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) p. 156 at pp. 188 – 189]
Actions which amount to an abuse of Court process may vary but they are generally to the annoyance of the opponent. [Okafor v. A. G., Anambra State (1991) 6 NWLR (Pt. 200) 659 @ 681 referred to]. Clearly the multiplicity of the processes of Court activated by the 1st Defendant against the claimants in this suit delay the proceedings in this suit to the annoyance and chagrin of the claimants. This annoyance was clearly averred by the Claimant in paragraph 4(e) of their counter affidavit.
It is not the exercise of a right, per se, that constitutes an abuse of Court process but its improper and irregular exercise. It is the tinge of malice, the perversion of the system of proper administration of justice by the use of a lawful procedure for the attainment of unlawful results.
[Ogoejofo v. Ogoejofo (2001) FWLR (Pt. 63) 142 @ 150, paras, E-G]. It is clearly irregular for the 1st Defendant to use both certiorari proceedings and notice of objection in two different courts to seek to stall the trial of the cause of action in the substantive suit.
Where a party duplicates a Court process, the more current of which results in the duplication is regarded as abuse of the Court process [P. 270 Para. a] A.R.C V. JDP Construction [Nig.] Ltd. [2003] FWLR. (Pt. 153) 251 @ 270 paras, a – d (SC). As can be seen Suit No. HU/54/2014 was filed on 18/3/2014. This preliminary Objection was filed on 5/6/2014. It is later in time and by the principles qualifies to be struck out.
Again this Preliminary Objection is asking for an adjournment sine die on grounds that the Court has no jurisdiction to hear and determine this suit. Where there is an objection with respect to the absence of jurisdiction the law is that the relief that follows that ground of objection is for the suit to be struck out. According to the Supreme Court, if the Court holds that it has no jurisdiction that is the end of the matter. The suit will be struck out and the plaintiff goes home in vanquish. He can only return after repairing the jurisdictional blunder. Att.-Gen., Federation v. Abubarkar (2009) All FWLR (Pt. 449)401 @ 424 – 425 paras. h – a, (SC).
Arguing this point the learned Respondent counsel in his written Address cited and relied on the authority of Tyonzughul v. A-G Benue State (2005) 5 NWLR (Pt., 918) 226 and contended that “a successful preliminary objection raised by a party on the jurisdiction of the Court to entertain an action will ultimately lead to a pronouncement by the Court. In the pronouncement, the Court must declare if it has jurisdiction or not. If the Court lacks jurisdiction the proper order to make is to strike out the action and not to adjourn same sine die.” Counsel went further to conclude that this type of relief is not known to law and urged the Court to refuse same.
Not only me but the authorities also agree with the learned Respondents counsel. To the extent that this preliminary objection is seeking an adjournment sine die when it is in substance saying that the Court has no jurisdiction the relief and the submissions are mutually inconsistent and it cannot stand.
The relief of adjournment sine die having been shown to be inappropriate in the circumstances, Court cannot of its own supply to the 1st Defendant a relief he did not seek by striking out this suit assuming it is in fact true that the Court has no jurisdiction. The Supreme Court has emphatically held that any order made in respect of a relief not claimed will infringe the basic and fundamental principles of the administration of justice in Nigeria, namely: notice to the other party and hearing the party to be affected. Akapo v. Hakeem-Habeeb (1992) 6NWLR (Pt. 274) 266 @ 297 para d. (SC).
Given the foregoing this notice of preliminary objection is incompetent and same is hereby struck out.
Being dissatisfied with the ruling of the lower Court, the Appellant initiated the instant appeal by lodging at the registry of the said Court on 20/3/2017 a notice of appeal bearing the same date. The process contains three grounds of appeal which with their respective particulars read thus: –
GROUNDS OF APPEAL:
GROUND ONE – OMNIBUS
The judgment is against the weight of evidence.
GROUND TWO – ERROR IN LAW : The trial honourable Judge of the Court below erred in law, when he held that the 1st Defendant/Applicant/Appellant ought to have applied for the striking out of the suit as against the pending application for adjournment sine die.
PARTICULARS
(i) The 1st Defendant/Applicant/Appellant has in the application before the Court below canvassed the issue that there is a pending suit at the High Court Umuahia in suit No HU/54/2014 between Pastor Okechi Onyeforo vs. Hon Justice S.A. Nwakanma & Ors. and attached as Exhibit A in the affidavit in support of the application, wherein the transfer of the case from Obingwa Division to Aba Division is being challenged.
(ii) The pendency (sic) No HU/54/2014 between Pastor Okechi Onyeforo vs. Hon. Justice S.A. Nwakanma & Ors. and attached as Exhibit A offers a good bar to the assumption of jurisdiction of the learned trial Judge to confer jurisdiction on himself to proceed to hear suit No A/33/2014.
(iii) Issues of law reside at the bosom of the Court and are not subject to be tendered in evidence.
(iv) The law in Abia State by Order 2 Rule 1 of the Abia State High Court (Civil Procedure) Rule 2014 all suit touching on claim on title to land shall be instituted in the division where the land (sic: is) situate.
(v) Suit No A/33/2014 was originally instituted in Obingwa Division as HOB/36/2016 and that the same was transferred under questionable circumstances warranting the filing of suit No HU/54/2014 which sought to set aside the transfer, which warranted the Applicant to file the motion which ruling is the subject of this interlocutory appeal.
GROUND THREE – ERROR IN LAW : The trial honourable Judge of the Court below erred in law by refusing the application challenging the jurisdiction of the Court to hear and determine suit No A/33/2014 (hitherto suit No HOB/36/2013) and to order pre-trial to commence despite being aware of Exhibit A which is a pending suit challenging the transfer of suit No HOB/36/2013 from Obingwa Division to Aba Division.
PARTICULARS
(i) All the landed properties being the subject matter of Suit No. A/33/2014 situate in Obingwa L.G.A.
(ii) By Order 2 Rule 1 suit No HOB/36/2013 now A/33/2014 ought to be instated (sic) and determined at Obingwa Division.
(iii) Suit No HU/54/2014 aforesaid which is challenging the transfer of HOB/36/2013 (now A/33/2014) from Obingwa Division to Aba Division is yet to be determined as the same is still pending at High Court Umuahia.
(iv) The trial Court below lacks the jurisdiction to proceed with suit No A/33/2014 against (sic) Order 2 Rule 1 of the High Court Rules and the pendency of suit No HU/54/2014.
The relief which the Appellant seeks from this Court as contained in the notice of appeal reads: ‘that the ruling of the trial Court (below), complained against be set aside and for the Court of Appeal to enter ruling in favour of the Appellant and to order for the adjournment suit (sic) No A/33/2014 sine die pending the outcome of suit No HU/54/2014.’
The appeal was entertained on 21/5/2018 without the participation of the 6th, 7th and 8th Respondents who though served on 15/5/2018, 14/5/2018 and 3/5/2018 respectively with notices of the hearing date of the appeal (and who in any event never filed briefs of argument in the appeal) were absent and not represented by counsel.
Onyenachi Chukwu in urging the Court to allow the appeal, adopted and relied on the Appellants’ brief of argument filed on 11/7/2017 and Appellants’ reply brief of argument filed on 11/10/2017.
In the same vein, learned leading counsel P.C. Uzoaga adopted and relied on the brief of argument of the 1st – 5th Respondents filed on 20/9/2017 but deemed as properly filed and served on 12/2/2018.
Under Part Three of the Appellants’ brief of argument and which was particularly headed ‘Issues for determination’ Appellants’ counsel stated thus: –
‘In arguing this brief the Appellant\s (sic) counsel shall raise three issues for determination namely’;
However as if in a trance, two issues were formulated in the said Appellants’ brief for the determination of the appeal. The two issue read thus: –
(i) Whether the trial Judge was right when he held that the Appellant’s application at the Court below ought to have been for the striking out of suit No A/33/2014 as against the adjournment sine die sought by the Appellant. Distilled from ground 2 of the Grounds of Appeal.
(ii) Whether the trial Judge of the Court below was right by overruling the application for adjournment sine die on the ground that the same application was an abuse of Court process and ordered pre- trial without due consideration of the pendency of suit No HU/54/2014 (attached as Exhibit C) which sought to challenge the jurisdiction of the trial Court to hear suit No A/33/2014. Distilled from ground 3 of the Grounds of Appeal.
In their brief of argument, the Respondents adopted the issues formulated by the Appellant as being apt for the determination of the appeal. The appeal will therefore be resolved on the issues formulated for its determination by the Appellant.
APPELLANT’S ISSUE 1:
In dwelling on this issue, the Appellant submitted that the lower Court operated under ‘a very (sic)misconception of the law’ when it held that the appropriate relief that he should have sought was that of the striking out of Suit No. A/33/2014. The Appellant contended that an application for an adjournment sine die is a relief like a stay of proceedings pending appeal and will apply where there is a subsisting proceeding challenging the jurisdiction of a trial Court.
That this is to save the Court before which the issue of jurisdiction is being contested, from being confronted with a fait accompli in the event the proceedings challenging the jurisdiction of the Court in question succeeded. Having also made submissions regarding the position a Court is expected to take when an issue of jurisdiction is raised, or when the Court becomes aware that there is a proceeding pending before another competent Court questioning the jurisdiction of the Court over a cause, the Appellant urged this Court to hold that his (Appellant’s) preliminary objection before the lower Court is ‘in the character of an application for stay of proceeding not withstanding being headed ‘preliminary objection’.”
It is also the stance of the Appellant on this issue, that the lower Court misdirected itself in holding that his notice of preliminary objection constituted an abuse of Court process when juxtaposed against Suit No. HU/54/2015 as the issue was not canvassed by the Respondents in their counter affidavit. That it was wrong of the lower Court to have held that Suit No. HU/54/2014 filed on 18/3/2014 was first in time against his notice of preliminary objection in A/33/2014 filed on 5/6/2014. This is because both processes seek different reliefs and do not constitute any abuse of Court process.
In dwelling on this issue, the Respondents submitted to the effect that the lower Court was right in the position it took in respect of the Appellant’s notice of preliminary objection inasmuch as it was predicated on the issue of lack of jurisdiction. That funny as the relief of the Appellant looked, instead of him to have asked that the suit be struck out for want of jurisdiction, he asked for same to be adjourned sine die pending the hearing and determination of another suit in yet another Court. The Respondents submitted that the type of relief sought by the Appellant is unknown to law and this Court was urged to so hold and resolve this issue in their (Respondents’) favour.
The Respondents having also devoted their energy to the submissions of the Appellant in respect of stay of proceedings in a pending case, submitted to the effect that a Court has jurisdiction to make an order to suspend further proceedings in a matter pending before it, only when there is a valid appeal against its interlocutory decision in the case in which further proceeding is being sought to be stayed. That the Appellant could not have hidden under a notice of preliminary objection to ask that an action validly pending before a Court be stayed or adjourned sine die because there is a suit in another Court.
That there was no evidence that there was an appeal pending in the case before the lower Court. That Suit No. HU/54/2014 pending before another High Court in the Umuahia Division, cannot constitute an appeal against the order of the Chief Judge on the basis of which the proceedings before the lower Court can be stayed. That if the Appellant was dissatisfied with the order of transfer by the Chief Judge, he ought to have appealed against it and not to apply for its review by a Judge of co-ordinate jurisdiction, by way of certiorari.
APPELLANT’S ISSUE 2:
In dwelling on this issue and having glaringly disclosure to the effect that his issue 1, somehow subsumed this issue (i.e. issue 2), the Appellant adopted a substantial part of the arguments on his issue 1 in respect of his issue 2. Furthermore, in arguing his issue 2, the Appellant who in paragraph 4.03 of his brief of argument, had initially accused the lower Court of going on a voyage of discovery by alluding to facts not submitted to it by the parties, (and apparently not realising that the lower Court had every power to look into Exhibit C which clearly threw up the issue the lower Court was accused of discovering while on a voyage of discovery), now turned around to accuse the lower Court of ignoring the same Exhibit C.
He thereafter went on to argue that the directive made in respect of the case that was re-numbered as A/33/2014, fell short of the exercise of power by the Chief Judge under Section 47 of the High Court Law of Abia State. It is the stance of the Appellant, that Suit No. HU/54/2014, which was still pending for determination at the High Court, Umuahia Division, to the knowledge of the lower Court stood a good chance of success as the directive of the Acting Chief Judge, was not an order made under the hand and seal of the Chief Judge and that the same strongly called to question the jurisdiction of the lower Court to hear Suit No. A/33/2014 which was originally Suit No. HOB/36/2013 instituted at the High Court, Obingwa Division, by virtue of Order 6 Rule 1 of the Abia State High Court (Civil Procedure) Rules 2009.
In dwelling on Appellant’s issue 2, the Respondents pointed out that the Appellant, as claimant in Suit No. HU/54/2014 which is an action for judicial review of the order made by the acting Chief Judge of Abia State pending in another High Court in Abia State, is challenging the transfer of Suit No. HOB/3612013 from Obingwa Judicial Division, to Aba Judicial Division, in Suit No. A/33/2014. That the Appellant was exploiting both suits in the preliminary objection with the aim of stopping the lower Court from hearing Suit No. A/33/2014 and for the same to be transferred back to Obingwa Judicial Division.
That as the certiorari action in Suit No. HU/5412014 filed on 18/3/14 and the preliminary objection in Suit No. A/33/2014 on 5/6/2014, respectively, are two Court processes initiated by the Appellant in different Courts, and both processes in substance, have one vital ground of lack of jurisdiction to query or challenge the transfer order made by the Chief Judge of Abia State, the lower Court was right when it held that using two different processes by the Appellant in two different Courts to achieve one purpose, constituted abuse of Court process.
That the position of the law as rightly stated by the lower Court is that where a party duplicates a Court process, the one filed later in time and which results in the duplication, is usually regarded as the one that constitutes the abuse of the Court process. That as Suit No. HU/54/2014 was filed on 18/3/2014 while the preliminary objection in Suit No. A/33/2014 was filed on 5/6/2014 and therefore later in time, (and which unarguably constituted an abuse), the lower Court was right in its decision.
I extensively reviewed the submissions of the Appellant in this judgment deliberately. This is because I am of the considered view that the said submissions glaringly expose the fact that it is actually the learned counsel who settled the brief of argument of the Appellant that is the one suffering from a very serious misconception of the law or labouring under serious misapprehension of the law, regarding the purpose of a preliminary objection in the litigation process and a fortiori the proper order that a Court is to make where the preliminary objection raised in a notice of preliminary objection is not sustainable or fails.
The cases are clear as to the purpose of a preliminary objection in the litigation process. It is a challenge to the competence of a Court’s process, be it an appeal, a suit or motion, as the case may be, which primary objective is to terminate the proceedings at the stage the objection is raised. See in this regard the case of KENTE V. ISHAKU (2017) LPELR 42077 (SC) and particularly the case of AKPAN V. BOB (2010) LPELR 376 (SC) wherein the Supreme Court per Ibrahim Tanko Muhammad, JSC; said thus: –
‘An objection in law portrays a formal opposition of an objector against the happening of an event which has already taken place or is about to take place now or in the future and the objector seeks the Court’s immediate ruling or intervention on the point. A preliminary objection seeks to provide an initial objection before the actual commencement of the thing being objected to.”
The preliminary objection brought by the Appellant and which was entertained by the lower Court, having regard to the relief sought therein, was glaringly not to terminate the case (i.e. Suit No. A/33/2014) being entertained by the lower Court. By the said preliminary objection, the Appellant was seeking to keep the case alive and for it to remain on the cause list of the said Court; even though he never asked for its adjournment to any specific date. In other words, the adjournment of a case sine die does not portend or prognosticate the end of the case. Clearly an objection which seeks for the retention of a matter on the cause list of a Court, for the purpose of the case being brought up sometime in the future pending the determination of a perceived issue of jurisdiction raised in another case before another Court, is not a proper matter to be pursued by way of preliminary objection notwithstanding the fundamental nature of jurisdiction.
It would appear that it is in the knowledge of the inappropriateness of the preliminary objection he (Appellant) brought for the attainment of his purpose, that it has been argued in the Appellant?s brief of argument to the effect that the Appellant’s preliminary objection was in the character of an application for stay of proceedings.
Suffice, it to say that I cannot fathom how this line of argument goes to show the prowess of Appellant’s counsel. It only goes to show that he actually does not clearly appreciate the circumstances put in place by the law over the years, in respect of stay of proceedings. The glaring desire of the Appellant was to truncate further proceedings in Suit No. A/33/2014 on the ground that the lower Court has no jurisdiction to entertain the case; not on the basis of any lapse intrinsic in the case, but on the perceived wrongness of the transfer of the said case to the lower Court for adjudication. It behoves the Appellant to have known that filing a notice of preliminary objection in the circumstances,was conspicuously antithetical to what he wanted to achieve.
I am of the considered view that the Appellant clearly expected too much of the lower Court in his stance that the said Court ought to have treated his preliminary objection, as one for stay of proceedings (even though the tendency these days is that the Courts in the bid to be seen as doing justice have often times engaged in doing for the parties what they ought to have thought of and done by themselves). Suffice, it to say that as the Appellant decided to utilise (whether out of ignorance of the law or out of what he considered to be an innovation), a process before the lower Court that cannot in law procure for him that which he desired, it certainly does not lie in the mouth of the said Appellant, to accuse the lower Court of acting under a serious misconception of the law, by not adjourning sine die, Suit No. A/33/2014 upon his notice of preliminary objection.
The Appellants as it can be seen predicated the preliminary objection by which he sought for the adjournment sine die of Suit No. A/33/2014 on the perceived lack of jurisdiction on the part of the lower Court to entertain the same, as a result of the pendency of Suit No. HU/54/2014(which is a certiorari proceeding) he instituted in respect of the transfer order made by the Chief Judge of the lower Court and as a result of which the lower Court came to be seised of the said Suit No. A/33/2014. The High Court Law of Abia State in Section 46 provides for ‘the power of transfer of Judge’ and Section 47 thereof clearly empowers the Chief Judge of the said State to transfer cases with or without application from any of the parties therein in respect of any cause or matter, before a Judge to any other Judge. Furthermore, the same Law in Section 49, expressly states that there shall be no appeal from any order made by the Court.
I am of the considered view that it is against the backdrop of the provisions of the High Court Law (supra) particularly Section 49 thereof, that the Appellant in a bid to sidetrack or avoid the express prohibition of an appeal against ‘the order of transfer of a case made by the Chief Judge or a Judge’ resorted to the certiorari proceeding in Suit No. HU/54/2014 to have the order of the Chief Judge pursuant to which the lower Court became seised of Suit No. A/33/2014, quashed. In other words, the Appellant apparently resorted to the certiorari proceedings in Suit No. HU/54/2014 to have the order of transfer made by the Chief Judge of Abia State to be reviewed by a judicial process in the belief or knowledge that a certiorari proceeding is different from an appeal.
The stance of the Courts in respect of the non-availability of review by way of appeal against an administrative order of transfer of a case made by a Chief Judge (in contradiction to an order of transfer made by a Court upon application for the exercise of its judicial powers in relation thereto) would appear to have been settled long ago in the case of DIKE V. ADUBA (2000) LPELR ? 944 (SC) wherein the Supreme Court dwelling on the power of administrative transfer of cases before a High Court said per Uwaifo, JSC; thus: –
‘…It follows, in my view that the mere inclusion of such a relief in the suit before Ononiba. J. was not a relevant consideration for Nwazota, J. in the circumstances of his granting or refusing the application to transfer. It was a routine administrative matter unsuited for the importation of the concept of judicious and judicial exercise of discretion as it was not a judicial or quasi-judicial function properly so-called. Consequently, a decision arrived thereat is not one that is appealable to the Court of Appeal.
Under Section 277(1) of the 1979 Constitution then applicable, the term ‘decision’ by definition means in relation to a Court, any determination of that Court and includes judgment, decree, order conviction, conviction, sentence or recommendation. In Kalu v. Odili (1992) 5 NWLR (Pt. 240) 130 at 189, Karibi-Whyte JSC observed that a decision within the meaning of Section 277(1) of the 1979 Constitution envisages any determination on an issue joined by or litigated by the parties before the Court. This of course does not exclude ex parte interim decisions that may be made by the High Court under the relevant Rules of Court or the Fundamental Procedure Rules that may be appealable by virtue of Section 220(1)(g)(ii) or (v) of the 1979 Constitution.
The said observation of Karibi-Whyte JSC is particularly attractive when related to the comparison between Rule 5 and Rule 8 of Order 19 of the Anambra State High Court Rules, 1988. That comparison reveals a distinction between the applications taken administratively and those taken as Court proceedings. It is then it is appreciated that the decisions taken in the latter circumstance qualify as decisions of a High Court from which an appeal may lie under Section 220(1) of the 1979 Constitution, whereas those taken administratively do not.
Karibi-Whyte, JSC; in his concurring judgment put the matter thus: –
”It seems to me that in exercising the power under Order 19 Rule 5(1), it is sufficient if the administrative Judge or Chief Judge as the case may be, is satisfied that there are good reasons for the transfer. It follows therefore that having made his decision either way, it is not subject to appeal. This is because a decision under Order 19 Rule 5(1)(2) does not fall within the definition of “decision” under Section 277(1) of the 1979 Constitution. Now Section 318(1) of the Constitution 1999 – See Kalu v. Odili (1992) 5 NWLR (Pt. 240) 130, 189. I hold therefore that the Court below was in error when it set aside the order of transfer made by Nwazola J. I therefore allow this appeal.”
See also the case of ORAJEAKA V. OWUAMALAM PHD (2011) LPELR 4883 (CA).
It is no doubt true that a certiorari proceeding is different from an appeal. However both an appeal and a certiorari proceeding are alternate modes of having a High Court exercise its supervisory jurisdiction in respect of decisions of Courts and/or bodies carrying out judicial or quasi- judicial acts, lesser in status than the High Court. See in this regard see the cases of NWAOBOSHI V. THE MILITARY GOVERNOR OF DELTA STATE; ACB PLC V. NWAIGWE (2011) 45 NSCQR (Pt. II) 1230 and ZENITH BANK PLC V. OMORODION (2013) LPELR 20755 (CA)
Therefore, it is obvious in my considered view that the bid of the Appellant to based his misguided, ill-advised and or misconceived challenge to the jurisdiction of the lower Court to entertain Suit No. A/33/2014 upon Suit No. HU/54/2014 which is to have the administrative order of transfer of a case at the instance of the Chief Judge of Abia State simply raises a glaring hollow or frivolous or meaningless issue of jurisdiction which cannot in law be the foundation of any challenge to the jurisdiction of the lower Court to entertain or to have continued to entertain Suit No. A/33/2014 which it became seised of pursuant to the transfer order made administratively by the Chief of Abia State. Indeed, the very fact that the Appellant has predicated his preliminary objection on an obviously or apparently hollow or meaningless issue of jurisdiction based on the apparently incompetent action to have the transfer order made by the Chief Judge of Abia State reviewed by a judicial process, shows the improper use of a judicial process (i.e. his preliminary objection) to achieve an equally unlawful result (i.e. to truncate the smooth and speedy administration of justice as expected of every Court).
The lower Court was therefore right in declaring the said preliminary objection as an abuse of Court process and would have been on firm grounds if it had dismissed it as such. After all, one of the positions of the law as enunciated in the case of IGBEKE V. OKADIGBO (2013) LPELR 20664 (SC) is to the effect that where a party to an action has not used the process of Court bona fide and properly, this constitutes an abuse of process of Court and the process in question is liable to dismissal.
Flowing from all that has been said therefore, is that the lower Court was not only right in holding that the relief the Appellant should have sought was one for the striking out of Suit No. A/33/2014 inasmuch as the challenge to its jurisdiction to entertain the case was based on lack of jurisdiction and also right in its finding that the preliminary objection of the Appellant constituted an abuse of Court process. Accordingly, the said Court having entertained the preliminary objection on the merit and particularly having found it to be an abuse of the process of Court ought to have dismissed the same and not to have struck it out as incompetent. However, as there is no appeal against the striking out of the preliminary objection by the Respondents, I am by law compelled to abide by same. The two issues formulated for the determination of the appeal by the Appellants are therefore resolved against him.
I cannot but note that, I find it totally incomprehensive why the learned counsel for the Appellant in any event still proceeded to argue the instant appeal when he must have been aware that the lower Court (i.e. the Court seised of Suit No. HU/54/2014 – the certiorari proceedings) had given judgment therein since 29/9/2017, and that the said suit was dismissed. Perhaps, learned counsel genuinely does not know the implication of the dismissal of the suit in question vis-a-vis the Appellant’s preliminary objection that was dismissed by the lower Court seised of it and the instant appeal. It may also be that he was being hopeful of creating a situation that this Court would have gone a different way from the decision given in the case by the lower Court seised of the said case. Learned counsel must know that they are duty bound not to create situation in which the administration of justice could be possibly put into disrepute by Courts going different ways. It is equally amusing that learned leading counsel for the Respondents (who disclosed the fact of the disposal of Suit No. HU/54/2014 in which he was a party), was comfortable in only disclosing this after the hearing of the appeal, and to have later forwarded a certified copy of the judgment in question to the registry of this Court. One would have thought that if the Respondents actually did not want the instant appeal heard, they could have filed appropriate process seeking for the striking out of the appeal as it had become academic. However, as they did not do this, and as the Appellant too, forged ahead to argue the appeal, the Court in my considered view could not have done otherwise than to have entertained the appeal lest it be accused of disposing of it on a point raised suo motu and to avoid petition writing.
In the final analysis, the appeal is unmeritorious as the two issues formulated by the Appellant for its determination have been resolved against him. The appeal against the ruling of the lower Court is accordingly dismissed and the said ruling affirmed.
Costs of N50,000.00 is awarded in favour of the Respondents (i.e. the 1st – 5th) and against the Appellant.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree
ITA GEORGE MBABA, J.C.A.: I agree
Appearances:
Onyenachi ChukwuFor Appellant(s)
P.C. Uzoaga with him, M.I. Obasi and Ojebe U. Ojebe – for 1st- 5th Respondents.
For Respondent(s)
