EZE FRANCIS UNAMKA v. CHIEF VICTOR ECHIBE & ORS
(2018)LCN/12042(CA)
In The Court of Appeal of Nigeria
On Friday, the 24th day of August, 2018
CA/OW/189/2011
RATIO
APPEAL: WHETHER THE DOCUMENT OF APPEAL IS BINDING
“It is well settled, beyond controversy, that the record of appeal is a binding document in respect of an appeal, as duly certified. And there is a presumption of correctness of the contents of the record of appeal, unless it has been successfully challenged or impugned. Thus, where there is no challenge to the contents of a record of appeal, its contents is presumed to be the entire record of events that occurred at the lower Court and it is accordingly binding on the parties. See the cases of Garuba v. Omokhodion (2011) 15 NWLR (Pt.1269) 145; Gonzee Nig. Ltd. v. N.E.R.D.C. (2005) 13 NWLR (Pt. 943) 634 and Orok v. Orok (2013) LPELR 20377. In the instant case, there is nothing on record of appeal before me with regard to the applications referred to above.” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
COURT AND PROCEDURE: A STAY OF COURT PROCEEDINGS
“A stay of a Court’s proceedings is not granted as a matter of course, it is granted only if the applicant has made a proper case on why it should be granted. That is, a stay of proceeding is only granted when the applicant has shown exceptional circumstance(s) on why the Court should exercise its discretion favourably to stay its proceedings. In addition and invariably, before a Court can stay its proceedings it must ensure that there is a valid appeal against its decision. See the cases of Abalaka v. Minister of Health & Ors. (2006) LPELR 5573; Abdulkareem v. Ayinla (2011) LPELR 9104; Nwabueze v. Nwosu (1988) 4 NWLR (Pt. 88) 257 and Josien Holdings Ltd. v. Lornamead Ltd. (1995) 1 NWLR (Pt. 371) 254.” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
EVIDENCE: WHERE THERE IS CONFLICTING EVIDENCE
“It is trite law that where a Court is faced with conflicting affidavits in respect of some set of facts dwelling on a certain subject matter, ordinarily the Court is not expected to prefer one party’s affidavit to the other. Thus, the Court is expected to call oral evidence to resolve the conflict. However, it is also well established position of our law, that where the perceived conflicts could be conveniently resolved by having recourse to the documents already attached to the affidavit as exhibit(s), then the Court can safely dispense with the need to call for oral evidence. See the cases of Adkins Scientific Ltd. v. Alade Toyinbo & Anor. (1995) LPELR 187; United Bank for Africa Plc. V. Okon Effiong (2011) LPELR 8934; Dana Impex Ltd. v. Awukam (2006) 3 NWLR (Pt. 968) 544 and Onagoruwa v. Adeniji (1993) 5 NWLR (Pt. 293) 317.” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
EZE FRANCIS UNAMKA – Appellant(s)
AND
1. CHIEF VICTOR ECHIBE
2. PATRICK EGBUHUZOR
3. SIR INNOCENT UGOCHUKWU
(For themselves and representing members of Amuzi Progressive Union, Amuzi, Ahiazu Mbaise L.G.A. excluding 1st Defendant) – FIRST SET OF RESPONDENTS
4. GOVERNOR OF IMO STATE
5. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, IMO STATE-SECOND SET OF RESPONDENTS – Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Imo State, sitting at Owerri, Coram: Hon. Justice A. O. H. Ukachukwu, J., (hereinafter referred to as the lower Court and learned trial judge, respectively). The said judgment was delivered on the 15th day of July, 2010.
The case which led to this appeal was commenced vide an originating summons dated and filed on the 2nd day of June, 2009, wherein the claimants/1st – 3rd respondents (hereinafter referred to as the 1st – 3rd respondents) raised the following questions for determination:
1. Whether the 2nd defendant, who is a party to the Appeal No. CA/PH/155/2001: Ambrose A. Ohaji & Ors. v. Chief Pius Unamka & Ors., involving a dispute as to whether or not Sir Innocent Ugochukwu (the 3rd claimant on record in this suit) is the duly elected Eze of Amuzi Autonomous Community in Ahiazu Mbaise Local Government Area of Imo State, has any right to recognize the 1st defendant as the Eze of Amuzi Autonomous Community while the said appeal is still pending in the Court of Appeal Port Harcourt.
2. Whether Suit No. HAM/70/2008 involving a dispute over the said Amuzi Autonomous Community Ezeship stool, is not an abuse of process of Court since the appeal in respect of the same subject matter is still pending in Court of Appeal, Port Harcourt, vide: Appeal No. CA/PH/155/2001.
3. Whether, by the doctrine of Lis Pendens, the 1st defendant acquired any interest in the Ezeship stool of Amuzi Autonomous Community to confer him with any right to bring Suit No. HAM/70/2008 in respect of the said Ezeship Stool.?
Upon answering the above questions, the 1st – 3rd respondents sought for the grant of the following reliefs:
(a) A declaration that the recognition of the 1st defendant as the Eze of Amuzi Autonomous Community in Ahiazu Mbaise Local Government Area, by the 2nd defendant while the dispute as to whether or not Sir Innocent Ugochukwu (the 3rd claimant on record) is the duly elected Eze of Amuzi Autonomous Community is still pending in the Court of Appeal Port Harcourt, vide; Appeal No. CA/PH/155/2001, is null and void and of no effect.
(b) A declaration that Suit No. HAM/70/2008 involving a dispute over the said Amuzi Autonomous Community Ezeship stool which is the subject matter of appeal No. CA/PH/155/2001, pending in the Court of Appeal, Port Harcourt, is an abuse of process of Court and liable to be dismissed.
(c) A declaration that by doctrine of Lis Pendens, the 1st defendant acquired no interest whatsoever over the Ezeship stool of Amuzi, Autonomous Community to confer him with any right to institute Suit No. HAM/70/2008, over the said Ezeship stool.
(d) Injunction restraining the 1st defendant by himself, his servants, agents or workers from parading and/or allowing himself to be paraded as Eze of Amuzi Autonomous Community in AhiazuMbaise Local Government Area.
The originating summons was supported by a 23 paragraph affidavit deposed to by Sir Innocent C. Ugochukwu, the 3rd respondent;documentary exhibits and written address. The 3rd respondent also deposed to a further affidavit which was accompanied by a reply on point of law, in response to the appellant’s/1st respondent’s (hereinafter referred to as the appellant) counter affidavit and written address. The appellant also filed a notice of preliminary objection challenging the jurisdiction of the lower Court to entertain the 1st – 3rd respondents’ suit, which as previously stated was brought by way of originating summons.
Furthermore, the appellant sought to file a further and better particulars vide a motion on notice filed on the 28th day of June, 2010. The 1st – 3rd respondents in opposition to the said motion on notice, also filed a notice of preliminary objection on the 6th day of July, 2010. In reply to the 1st – 3rd respondents’ preliminary objection, the appellant filed a reply address on the 14th day of July, 2010.
The learned trial judge after the giving of due considerations to all the processes filed by the parties, declined to grant the application made by the appellant to admit further evidence; dismissed the appellant’s preliminary objection and entered judgment in favour of the 1st – 3rd respondents herein and granted their reliefs (a) and (d). In his words, the learned trial judge entered judgment in favour of 1st – 3rd respondents in the following terms:
”the Recognition of the 1st defendant as the Eze of Amuzi Autonomous Community in AhiazuMbaise Local Government by the 2nd defendant while the Appeal on the issue was pending as No. CA/PH/155/2001 (on any number for that matter) is set aside as Null and Void and of no effect whatsoever.
(b) The 1st defendant is hereby restrained by himself, his servants, Agents or workers from parading or allowing himself to be paraded as the Eze of Amuzi Autonomous Community in AhiazuMbaise Local Government Area. There will be cost of N10,000.00 to the claimants.
The appellant as expected was not satisfied with the said decision of the lower Court and he has appealed against the same to this Court vide his notice of appeal which was filed on the 19th day of July, 2010. The said notice of appeal was later amended with the grant of leave by this Court and the amended notice of appeal was filed on the 20th day of September, 2013. It was deemed as having been properly filed and served by the order of this Court made on the 25th day of September, 2014. The appellant’s complaints against the decision of the lower Court were expressed in his four grounds of appeal. The said grounds of appeal are reproduced without their particulars as follows:
GROUND ONE:
”The learned trial judge erred in law by proceeding to enter judgment in the Suit when he lacked jurisdiction to entertain the matter.”
GROUND TWO:
”The learned trial judge erred in law when he denied the 1st Defendant/Appellant his right to fair hearing as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria 1999.”
GROUND THREE:
”The learned trial judge clearly manifested his bias against the appellant when he proceeded to deliver judgment in the case on the 15th day of July, 2010, despite the pending application for transfer of the case.”
GROUND FOUR:
”The learned trial judge erred in law by failing to call evidence to resolve vital issues in the conflicting affidavit of the parties.”
Towards the prosecution of this appeal, the learned counsel for the parties filed and exchanged their respective briefs of argument. Appellant’s amended brief of argument was filed on the 27th day of January, 2017. It was deemed as properly filed and duly served on the 27th day of April, 2017 by the order of this Court. The said appellant’s brief was settled by Ken C. Nwakamma Esq.
As for the respondents, the 1st – 3rd respondents’ brief of argument prepared by R. U. Okwuegu Esq., was filed on the 13th day of October, 2017. It was deemed as properly filed and duly served by the order of this Court on the 16th day of October, 2017. Also, the 2nd & 3rd respondents/4th & 5th respondents’ (hereinafter referred to as the 4th & 5th respondents) brief of argument was prepared by N. C. Eronini Esq., Senior State Counsel, Ministry of Justice, Imo State. It was filed on the 10th day of October, 2017 and deemed properly filed and duly served on the 16th day of October, 2017.
Additionally, the appellant filed a reply brief on the 11th day of December, 2017 and the said reply brief was deemed as properly filed and served by the order of this Court made on the 19th day of February, 2018.
Towards the determination of this appeal, the learned counsel for the appellant donated four issues for resolution. The issues are reproduced below as follows:
1. Whether the learned trial judge of the High Court was right to proceed to hear the originating summons and enter judgment therein in view of his apparent lack of jurisdiction.
2. Whether it did not amount to a denial of fair hearing when the learned judge bluntly refused to receive the judgment of the Court of Appeal as presented during trial by the appellant to show that Appeal No. CA/PH/155/2001 did not revolve around the Ezeship stool of Amuzi Autonomous Community as falsely projected by the respondents herein in their purported originating summons No. HOW/201/09.
3. Whether the learned judge had jurisdiction to proceed with the hearing of the originating summons and enter judgment there to in view of the pendency of a petition for transfer (endorsed to him by the CJ for his reaction) written by the Appellant, wherein the Chief Judge for Imo State had not taken a decision one way or the other.
4. Whether the learned trial judge was right in not calling oral evidence to resolve conflicting issues in the affidavit in the originating summons.
The learned counsel for the 1st – 3rd respondents on his own part distilled three issues for resolution in the course of determination of the appeal. The issues are as follows:
ISSUE NO. 1:
Whether the lower Court had jurisdiction to hear and determine the suit. Grounds One and Three.
ISSUE NO. 2:
Whether the appellant was denied fair hearing at the lower Court. Ground Two.
ISSUE NO. 3:
Whether there were conflicting affidavit evidence material to the determination of the originating summons. Ground Four.
The learned counsel for 4th & 5th respondents also distilled four issues for determination. The issues are:
1. Whether the learned trial judge had the jurisdiction to hear and determine the suit. Grounds one and three of the notice of appeal.
2. Whether the appellant was denied fair hearing at the lower Court. Grounds two and three.
3. Whether an application for transfer can operate as a stay to which invariably ousted the jurisdiction of the Court. Ground Three.
4. Whether there were conflicting affidavit evidence material to the determination of the originating summons. Ground Four.
The issues donated by the learned counsel for the parties are materially the same, save for the difference in drafting styles.
However, the set of issues donated by learned counsel for the 4th & 5th respondents are preferred by me and the same are adopted for resolution and subsequent the determination of this appeal.
ARGUMENTS ON ISSUES.
With respect to Issue No. 1, that borders on whether the learned trial judge of the High Court was right to proceed to hear the originating summons and enter judgment thereto in view of his apparent lack of jurisdiction, the learned counsel for the appellant submitted in essence that the issue of jurisdiction being radical; that the suit which led to this appeal was an abuse of the motion filed by the 1st ? 3rd respondents in Suit No. HAM/70/2008, as the reliefs which they sought by the said motion are the same with the ones that the 1st – 3rd respondents sought in the instant action, and the parties in the said Suit No. HAM/70/2008 and the instant case are the same. He maintained, that the instant action is an abuse of that motion and therefore has by that reason robbed the lower Court of its jurisdiction to entertain the 1st – 3rd respondents’ suit. He supported his position with the case of Anambra State Housing Development Corporation v. Sir. P. C. Ukpaka & 3 Ors. (2002) FWLR (Pt. 93) 2015 at 2017.
Also, the learned counsel for the appellant further contended, ‘that by virtue of an application for transfer’ initiated by the appellant (which had not been completely dealt with at the time the learned trial judge entered judgment in the suit), the trial Court ought to have stayed, pending the determination of the application, as the said application for transfer ordinarily operated as a stay more so when the then Chief Judge endorsed the petition to the trial judge for his reaction.’
The learned counsel then argued that by virtue of the application for transfer, the lower Court by inference no longer had the requisite jurisdiction to further entertain the 1st – 3rd respondents’ suit, save until when the Chief Judge had finally and completely dealt with the application for transfer. Furthermore, the learned counsel contended that ‘the learned trial judge had a mind set and or was biased against the appellant which propelled him to ignore the rules of justice and proceeded to hastily enter judgment in the matter even when the appellant’s counsel had applied that judgment be suspended to enable him exhibit the judgment of the purported case at the Court of Appeal which was the strong hold of the respondents Suit No. HOW/201/2009 that the recognition of the appellant as the Traditional Ruler of Amuzi Autonomous Community, be declared null and void’.
On Issue No. 2, the learned counsel for the appellant contended, that ‘the application by the appellant’s solicitor to be allowed to make use of the Court of Appeal judgment in Suit No. HOW/201/2009 is tantamount to seeking leave of Court to amend his pleadings in the circumstances of the case’. He stated, that the parties are allowed by the extant rules of the lower Court to amend their pleadings, at anytime during the proceedings before judgment, but the learned trial judge did not grant the appellant such opportunity.
He further argued, that had the lower Court admitted the said Court of Appeal judgment, it would have appreciated the appellant’s contention, that the appellant was not a party to Appeal No. CA/PH/2001 and the subject matter in the appeal is different from the 1st – 3rd respondents contention against the appellant, in the instant case. In addition, the learned counsel for the appellant submitted, that the appellant had made out a proper case that should have enabled the learned trial judge to exercise his discretion positively in favour of the appellant, to admit the said judgment of the Court of Appeal and the lower Court was wrong when it ignored the appellant’s application, and went ahead to deliver judgment in this case. He called in aid the decisions in the cases of Nemi v. Attorney General of Lagos State (2001) 1 CHR 168 and Hope Uzodinma v. Senator Osita B. Izunaso& 2 Ors. (2011) 9 NNSCLR 63 at 65.
Also, on Issue No. 3, the learned counsel for the appellant maintained, that the learned trial judge ought to have stayed the proceedings of this case at the lower Court in view of the appellant’s application to the Chief Judge of Imo State to have the case transferred from the learned trial judge’s Court to another Court of competent jurisdiction. He insisted that while the appellant’s application to transfer was still pending at the lower Court, the learned trial judge lacked the requisite jurisdiction to continue to entertain the 1st – 3rd respondents’ suit. He referred us to the case of Good Will and Trust Investment Ltd. & Anor. v. Witt & Bush Ltd (2012) 6 NNSCLR (Pt. 2) 89 at 92 – 93.
Finally, on Issue No. 4, the learned counsel for the appellant contended that this suit was wrongly commenced through an originating summons, because facts in the case are very contentious. He then submitted, that ‘the learned trial judge erred by not taking into cognizance the conflicting averments in the affidavit and counter affidavit which are of material importance’. The learned counsel further submitted, that ‘not withstanding the glaring conflicts in the affidavit and counter affidavit as well as the further affidavit in the originating summons, the learned trial judge failed to call oral evidence to resolve those conflicting depositions and never gave reasons in his judgment – for this fundamental and curious neglect.’
The learned counsel for the appellant thereby urged this Court to set aside the decision of the lower Court and restore the recognition of the appellant as the traditional ruler of Amuzi Autonomous Community in the Ahiazu Mbaise Local Government Area, Imo State, by resolving the issues formulated for resolution in the determination of this appeal in favour of the appellant.
In response, the learned counsel for the 1st – 3rd respondents stated, that ‘in determination of whether an abuse of judicial process has occurred, the Court will consider the content of the first process vis–vis the second one to see whether they are aimed at achieving the same purposes’. He referred us to the case of Agwasim v. Ojichie (2004) 10 NWLR (Pt. 882) 613. The learned counsel stated, that the subject matter in Suit No. HAM/70/2008 and the instant case are completely different. And the claims in the said Suit No. HAM/70/2008 and those herein are unrelated. Thus, he submitted that the instant suit is not an abuse of Court process.
On the issue of application for transfer, the learned counsel for the 1st – 3rd respondents contended, that the appellant’s application to have the case transferred to another Court was ill-fated as the same was made when hearing has already been concluded in the matter (which the appellant actively participated therein) and the case adjourned for judgment. He further stated, that an application to have a case transferred is not a legal ground upon which a Court is enjoined to stay its proceedings. Finally, on this issue, the learned counsel for the 1st – 3rd respondents drew the attention of this Court to the fact and or invited us to observe that, there was no indication or endorsement showing that the appellant’s letter which urged the Chief Judge to transfer the case, was received or attended to. He submitted that, ‘assuming but not conceding that the Chief Judge of the State endorsed the application for reaction of the learned trial judge, the position would still remain the same’. That is, the application would still not be regarded as a valid base to stay the proceedings of the lower Court, in the given circumstances of this case.
On the argument canvassed, that the learned trial judge denied fair hearing to the appellant by refusing to admit the judgment of the Court of Appeal in Appeal No. CA/155/2001, the learned counsel for the 1st – 3rd respondents submitted that the appellant’s allegation in this respect is ‘a clear misrepresentation of facts aimed at deceiving this Honourable Court’. The learned counsel stated, that the appellant’s counsel had in the course of proceeding on the 15th day of June, 2010 sought for an adjournment to enable him obtain the judgment but the learned trial judge declined because the appellant’s application was tantamount to seeking to adducing additional evidence, especially on facts which occurred after the filing of the instant action. The learned counsel stated and rightly so that ”if the appellant truly wanted to show the Court the cause of action (or in his words ‘what the appeal centered on’) he need not wait for the judgment for the Court of Appeal. It would have been sufficient to exhibit the statement of claim and notice of appeal in his notice of preliminary objection.”
The learned counsel for the 1st – 3rd respondents argued, that after the learned trial judge had already ruled and refused the appellant’s application when it was made orally, and thereafter the learned trial judge lacked the power to receive a similar application again from the appellant. He referred us to the case N.I.C.O.N. v. P.I.E. Ltd. (1990) 1 NWLR (Pt. 129) 701. He continued and opined, that ‘assuming but not conceding that the evidence (Judgment of the Court of Appeal in CA/PH/155/2001) was wrongfully excluded, would it had made any difference if it had been admitted. The answer is in the negative. Cause of action accrued at the time an action is instituted and not subsequent to the institution of an action. Therefore applying for the judgment of the Court of Appeal was unnecessary and made malafide’. He referred us to and quoted the provision of Section 251 (2) of the Evidence Act, 2011 and the case of Hope Uzodinma v. Senator Osita B. Izunaso& 2 Ors. (2011) 9 NSCLR 63. Thus, the learned counsel for the 1st – 3rd respondents submitted,that ‘having considered the circumstances of the case,’ the learned trial judge did not deny the appellant fair hearing when he refused his application in the given circumstances.
On the issue, which pertained to conflicting affidavit evidence, the learned counsel for the 1st – 3rd respondents submitted, that the ‘argument of the appellant’s counsel that the proceeding at the lower Court did not qualify to be instituted by originating summons is with respect a misrepresentation of law.’ He contended, that the principles enunciated in the case of Pam v. Mohammed (2008) 35 NSCQR 123, cited by the appellant’s counsel was misapplied by him. The learned counsel for the 1st – 3rd respondents stated, that a cursory look at the 1st – 3rd respondents’ pleadings would reveal that the suit was rightly brought vide originating summons. He maintained, that the alleged conflicts in the affidavits of the parties are not material and the lower Court did not have any reason to call oral evidence in respect thereof, because there was no material conflict to be resolved. Therefore, the learned counsel for the 1st – 3rd respondents urged us to resolve the issues raised in this appeal in favour of the 1st – 3rd respondents.
On his own part, the learned counsel for the 4th & 5th respondents submitted, ‘that to be able to determine the question of jurisdiction, it is the plaintiff’s processes that should be considered, because it is the plaintiff’s cause of action that determines his legal right to judicial relief.’
He supported his submission with the case of Ogunmokun v. Military Administrator, Osun State (1999) 3 NWLR (Pt. 594) 26 andOgara v. Asadu (2014) ALL FWLR (Pt. 754) 45. He also submitted, that ‘it is trite law that in determination of whether an abuse of the judicial process has occurred, the Court will consider the content of the first process vis–vis the second one to see whether they are aimed at achieving the same purpose.’
He also called in aid the case of Agwasim v. Ojichie (2004) 10 NWLR (Pt. 882) 613. The learned counsel further stated, that the issues in contention in the instant case, HOW/201/2009 and the reliefs sought therein are completely different from those of Suit No. HAM/70/2008. He argued, that the issue in contention in the instant case is with regard to the recognition of the appellant as Eze by the 4th respondent, during the pendency of an appeal in respect of a legal tussle in respect of the same Eze stool, while Suit No. HAM/70/2008 bordered on the conduct of plebiscite. Thus, he maintained that the instant action is not an abuse and urged this Court to so hold.
On the issue of application for transfer, the learned counsel for 4th & 5th respondents submitted, that ‘the powers to transfer any case is by fiat of the Chief Judge and it must be written and in the case where there is none, and until the Chief Judge exercises that power, the case continues to be in that Court where it originated from. Consequently, the Judge before whom the case is pending has the jurisdiction to continue and conclude the matter in the absence of such order.’ He referred us to the case of Patil v. Federal Republic of Nigeria (2015) ALL FWLR (Pt. 775) 228. In the light of the above, arguments and or contentions, the learned counsel for the 4th & 5th respondents submitted that the lower Court had the requisite jurisdiction to entertain this case as it did.
On Issue No. 2, the learned counsel for the 4th & 5th respondents submitted that fair hearing is not a one way traffic, that both the adverse parties are required to be given equal opportunities to put their respective cases to the Court before the said Court can determine it. He placed reliance on the cases of Omokhodion v. Federal Republic of Nigeria & Ors. (2006) ALL FWLR (Pt. 292) 18 and Jolabon Investment Nigeria Ltd. & Ors. v. Oyus International Co. Nig. Ltd. (2015) ALL FWLR (Pt. 788) 829. In addition, the learned counsel submitted, that ‘the contention of the appellant on the rejection of an adjournment sought on the 15th day of June while the matter was slated for hearing does not suffice in the instant case. Rather, it was an attempt by the appellant to further frustrate the 1st to 3rd respondents in their case. It is trite that no encouragement should be given to counsel who are not ready to prosecute their cases.’ He supported his submission with the case of Telepower Nig. Ltd. v. Chief Banna (2002) ALL FWLR (Pt. 95) 255. Thus, he urged us to resolve this issue in favour of the 4th & 5th respondents.
With regard to Issue No. 4, the learned counsel for the 4th& 5th respondents submitted, that in the instant case, ‘the originating summons initiated at the lower Court was clearly for construction of some questions of law and it is a right procedure consequent upon the actions of the 4th and 5th respondents.’
The trial Court was then correct to have proceeded to hear and determine the matter on the basis of affidavit evidence brought before him. The learned counsel then contended, that the perceived conflicts of facts in the affidavit of the parties with regard to this case can be resolved by documents attached to the affidavits, thus, the lower Court, properly determined this case and this Court is precluded from interfering with the decision of the lower Court. He referred us to the case of Barr. Jev & Anor. v. Sekav Iyortyom (2014) ALL FWLR (Pt. 747) 749. Thus, he also urged us to resolve this resolve in favour of the 4th& 5th respondents.
In his reply, the learned counsel for the appellant once again maintained, that the instant action is an abuse of Court process, in that the subject matter of this action and the parties are the same as that of Suit No. HAM/70/2008, which was still pending at a competent Court, and that the attitude of the 1st – 3rd respondents in filing this suit, especially outside the territorial jurisdiction where the cause of action arose, amount to forum shopping, which is highly prohibited.
He referred us to the cases of MainstreetBank Estate Co. Ltd. & 2 Ors. v. Turnmile Technologies Ltd. (2017) 1 WRN 1185 and Ogoejeofo v. Ogoejeofo (2006) 3 NWLR (Pt. 966) 205. Furthermore, the learned counsel argued that the suit which led to the instant appeal, was not initiated in accordance with due process of the law, because the suit was initiated or commenced outside the territorial jurisdiction of the main parties in the suit.
Once again, the learned counsel for the appellant submitted, that the lower Court erred by not admitting the appellant’s further evidence. He insisted that had the evidence been admitted, it would have changed the terms of the lower Court’s judgment. Again, the learned counsel did what could be referred to as a rehash of most of his arguments in the appellant’s brief of argument and once again, urged us to resolve the issues in this appeal in favour of the appellant.
Abuse of Court process generally means, that process of the Court has not been used bona fide and properly. A comprehensive definition of abuse of Court process was given in the case of Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156, (1992) LPELR 3016, where the Supreme Court, per Karibi-Whyte, JSC at pages 33 – 34 enunciated as follows:
”It is recognized that the abuse of the process may be in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See Okorodudu v. Okoromadu (1977) 3 SC 21, Oyegbola v. Esso West Africa Inc. (1986) 1 ALL NLR 170. Thus, the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right, perse.
The abuse consists in the intention, purpose, and aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice, such as instituting different actions between the same parties simultaneously in different Courts, even though on different grounds. See Harriman v. Harriman (1989) 5 NWLR (Pt. 119) 6.
Similarly so held was where two similar processes were used in respect of the exercise of the same right. Namely a cross-appeal and a respondent’s Notice. See Anyaduba v. N.R.T. Co. Ltd. (1990) 1 NWLR (Pt. 127) 307, Jadesimi v. Okotie Eboh (1986) 1 NWLR (Pt. 16) 278. This Court has also held as an abuse of the process, an application for adjournment by a party to an action to bring an application to Court for leave to raise issues of fact already decided by Courts below. See Alade v. Alemuloke (1988) 1 NWLR (Pt. 69) 207.”
See also the cases of Agwasim v. Ojichie (2004) 4 S. C. (Pt. II) 160, Okafor v. Attorney-General & Commissioner for Justice, Anambra State (1991) 6 NWLR (Pt. 200) 659 and Edjerode v. Ikine (2001) 12 S. C. (Pt. II) 94.
In the instant case, the appellant’s counsel contended that the case is an abuse of an application filed by the 1st – 3rd respondents in Suit No. HAM/70/2008. To properly determine or ascertain whether a suit or an application is an abuse of an earlier application or suit (as the case may be), the following factors must co-exist:
1. The parties (or the necessary parties) in both actions must be the same, and
2. The subject matter in both actions must be the same.
See the cases of African Continental Bank Plc. V. Nwaigwe (2011) LPELR 208 and Ojo v. Attorney-General of Oyo State (2008) 15 NWLR (Pt. 1110) 309.
To determine whether or not this instant case is an abuse of Court process, the reliefs being sought by/in this case and those of the other application, that is, the 1st – 3rd respondents’ motion on notice dated the 2nd day of June, 2009, and filed on the 3rd day of June, 2009 (hereinafter referred to as the Motion); had to be compared. It is not in dispute that the parties in both suit No: HAM/70/2008 and those in this case are the same. Thus, emphasis on this issue would be on the reliefs sought in the Motion and those sought by the 1st – 3rd respondents in the instant case. The reliefs sought in the former are as follows:
1. Dismissing this suit for being an abuse of process of Court;
OR
2. Striking out this suit for being grossly incompetent;
OR
3. Staying further proceedings in this suit pending the determination of the Originating Summons filed by the people of Amuzi Autonomous Community vide suit No. HOW/201/2009 seeking determination of the Honourable Court as to:
(a) Whether or not the Governor of Imo State has right to recognize the claimant as the Eze of Amuzi Autonomous Community while the dispute over the said Ezeship stool of Amuzi Autonomous Community is pending in the Court of Appeal Port Harcourt in Appeal No. CA/PH/155/2001.
(b) Whether or not the claimant acquired any interest whatsoever in the Ezeship stool of Amuzi Autonomous Community to confer him with any right to bring this suit.
(See pages 60 – 61 of the record of appeal).
A simple comparison or cursory look at the reliefs sought in the instant case (as earlier reproduced in this judgment) and those sought in the Motion, as reproduced above, would reveal that the reliefs are not in any way related. The reliefs are not by any means similar or dwelt on the same subject matter. In any event, even if the reliefs are considered the same (which they are not), the 1st – 3rd respondents’ suit herein would still not be considered as an abuse, this is more so because the case was first in time before the Motion. The 1st – 3rd respondents’ suit was filed on the 2nd day of June, 2009, while the motion was filed on the 3rd day of June, 2009. It is well settled beyond argument, that where two Court processes are considered an abuse of Court process, it is the second process (that is, the latter in time) that would be considered an abuse and liable to be struck out. See the case of Amachree v. Princewill (2008) 11 NWLR (Pt. 1098) 345. In the light of all that have been said above, Issue No. 1, is hereby resolved against the appellant.
With regard to Issue No. 2, the learned counsel for the appellant strenuously argued, that the learned trial judge dismissed its motion on notice to file further and better affidavit without considering it at all. He maintained that ‘the trial judge relied only on the claimant’s/respondents preliminary objection dated the 5th day of July, 2010 without any reference to the appellant’s reply dated the 13th day of July, 2010 as can be seen at pages 135 to 158 of the records, it is trite that defence however stupid must be considered’.
I have searched and searched and repeatedly too, the entire record of appeal placed before us, and I have been unable to see the ruling of the lower Court dismissing the appellant’s said motion on notice. That is, the record of appeal before us does not contain the ruling of the lower Court with regard to the said appellant’s motion on notice dated the 21st day of June, 2010 and filed on the 28th day of June, 2010, and 1st – 3rd respondents’ preliminary objection dated the 5th day of July, 2010 and filed on the 6th day of July, 2010. Thus, this Court has been denied the opportunity or benefit of seeing the said ruling of the lower Court in respect of this applications.
It is well settled, beyond controversy, that the record of appeal is a binding document in respect of an appeal, as duly certified. And there is a presumption of correctness of the contents of the record of appeal, unless it has been successfully challenged or impugned. Thus, where there is no challenge to the contents of a record of appeal, its contents is presumed to be the entire record of events that occurred at the lower Court and it is accordingly binding on the parties. See the cases of Garuba v. Omokhodion (2011) 15 NWLR (Pt.1269) 145; Gonzee Nig. Ltd. v. N.E.R.D.C. (2005) 13 NWLR (Pt. 943) 634 and Orok v. Orok (2013) LPELR 20377. In the instant case, there is nothing on record of appeal before me with regard to the applications referred to above.
Thus, any word from me would most definitely be speculative, which I am retrained from doing. My position in respect of this issue could have been different, if the appellant’s counsel contention was that all the applications/processes under reference were totality ignored, but he argued to the contrary, that only the 1st – 3rd respondents’ preliminary objection was given consideration. And I am not allowed to make out a case for any of the parties. Thus, the appellant’s contentions in respect of this issue are baseless and accordingly resolved against the appellant.
On Issue No. 3, the learned counsel for the appellant contended, that the learned trial judge acted wrongly when he went ahead to deliver judgment in this case notwithstanding the appellant’s application to the Chief Judge of Imo State to have the matter transferred. He contended, that the letter or petition ought to operate as a stay against the lower Court’s proceedings. I must admit, that the position canvassed above by the learned counsel is very strange, to say the least. It is most ingenious and interesting that the learned counsel for the appellant in making this argument neither referred to any law nor authority in support thereof.
A stay of a Court’s proceedings is not granted as a matter of course, it is granted only if the applicant has made a proper case on why it should be granted. That is, a stay of proceeding is only granted when the applicant has shown exceptional circumstance(s) on why the Court should exercise its discretion favourably to stay its proceedings. In addition and invariably, before a Court can stay its proceedings it must ensure that there is a valid appeal against its decision. See the cases of Abalaka v. Minister of Health & Ors. (2006) LPELR 5573; Abdulkareem v. Ayinla (2011) LPELR 9104; Nwabueze v. Nwosu (1988) 4 NWLR (Pt. 88) 257 and Josien Holdings Ltd. v. Lornamead Ltd. (1995) 1 NWLR (Pt. 371) 254.
The next question to be asked and answered herein is; whether the appellant has made out or establish a special circumstance(s) necessitating that the lower Court’s proceedings ought to have been stayed? I have considered the entire arguments of the learned appellant’s counsel in this regard and I am of the firm viewpoint that the appellant has completely missed the boat and failed to justify or establish a proper case to enable the lower Court to exercise its discretion in his favour by granting an order staying its proceedings. First, there is no application from the appellant or his counsel to the lower Court wherein they sought for an order staying further proceedings of the lower Court. Secondly, there is nothing on record to show that the purported application was received by the Chief Judge nor was the letter brought to the attention of the learned trial judge . See pages 184 A ? 184 D of the record of appeal. In sum, the appellant has failed to show any exceptional circumstances that justifies his contention that the proceedings of the lower Court ought to have been stayed. Thus, this issue too is resolved against the appellant.
On the last issue, that is Issue No. 4, I have carefully examined and re-examined the affidavits filed by the parties, and I do not agree with the learned counsel for the appellant that there are materially contradictory facts, contained in the pieces of affidavit evidence before the lower Court that would have necessitated the calling of oral evidence to which the lower Court failed to call.
It is trite law that where a Court is faced with conflicting affidavits in respect of some set of facts dwelling on a certain subject matter, ordinarily the Court is not expected to prefer one party’s affidavit to the other. Thus, the Court is expected to call oral evidence to resolve the conflict. However, it is also well established position of our law, that where the perceived conflicts could be conveniently resolved by having recourse to the documents already attached to the affidavit as exhibit(s), then the Court can safely dispense with the need to call for oral evidence. See the cases of Adkins Scientific Ltd. v. Alade Toyinbo & Anor. (1995) LPELR 187; United Bank for Africa Plc. V. Okon Effiong (2011) LPELR 8934; Dana Impex Ltd. v. Awukam (2006) 3 NWLR (Pt. 968) 544 and Onagoruwa v. Adeniji (1993) 5 NWLR (Pt. 293) 317.
In the instant case, apart from the fact that there is no conflicts in the material facts of this case, the seemingly conflicting facts as perceived can be conveniently and properly resolved by the learned trial judge placing reliance on documentary evidence attached to the parties’ affidavits. Once again, this issue is resolved against the appellant.
Having resolved the issues formulated for the determination of this appeal in the aforestated manner, this appeal is found by me to be incisively devoid of any merit whatsoever and it is accordingly dismissed. Consequently, the judgment of the lower Court in respect of the instant case, delivered on the 15th day of July, 2010 is thus affirmed by me. Costs in the sum of N50,000.00 is awarded in favour of the 1st – 3rd respondents.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree
TUNDE OYEBANJI AWOTOYE, J.C.A.: I agree
Appearances:
K. C. Nwakamma, Esq. with him, M. C. Eze, Esq.For Appellant(s)
L. C. Ugorji, Esq. – For the 1st – 3rd Respondent
Mrs. N.C. Eronini,Senior State Counsel, Ministry of Justice, Imo State-For the 4th & 5th Respondents
For Respondent(s)
Appearances
K. C. Nwakamma, Esq. with him, M. C. Eze, Esq.For Appellant
AND
L. C. Ugorji, Esq. – For the 1st – 3rd Respondent
Mrs. N.C. Eronini,Senior State Counsel, Ministry of Justice, Imo State-For the 4th & 5th RespondentsFor Respondent
