SUNDAY SOROYEUN & ORS v. CHIEF AUGUSTINE AJUEBOR
(2019)LCN/12713(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of February, 2019
CA/L/81/2016
RATIO
FUNDAMENTAL RIGHT: RIGHT TO FAIR HEARING
“The right to fair hearing is a very essential right for a person to secure justice. The basic attributes of fair hearing include: (a) That the Court shall hear both sides not only in the case but also on all material issues in the case before reaching decision which may be prejudiced to any party in the case.
(b) That the Court or Tribunal gives equal treatment, opportunity and consideration to all concerned.
(c) That the proceedings be heard in public and all concerned shall be informed of and have access to such place of hearing, (d) That having regard to all circumstances in every material decision in the case justice must not only be done but must manifestly and undoubtedly be seen to have been done. Usani v. Duke (2004) 7 NWLR (pt. 871) pg. 116; Fagbule v. Rodrigues (2002) 7 NWLR (pt. 765) pg. 188; Adeniran v. NEPA (2002) 14 NWLR (pt. 786) pg. 30; Bamgboye v. University of Ilorin (1999) 10 NWLR (pt. 622) pg. 290; Awoniyi v. The Registered Trustees of the Rosicrucian Order (AMORC) (2000) 4 SC (pt. 1) 103.” PER TOM SHAIBU YAKUBU, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
1. SUNDAY SOROYEUN
2. OLAGOKE AKINRINMADE
3. HASSAN TAYE MAYE
-3rd DEFENDANT/APPELLANTS
4. PERSONS UNKNOWN Appellant(s)
AND
CHIEF AUGUSTINE AJUEBOR Respondent(s)
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment):
The respondent had instituted an action against the 1st and 2nd defendants in respect of the property situate at No.13 Williams Udofia Street, Abule, Suberu-Oje, Lagos/Abeokuta Express Way, Agege Market Road (Covered by Plan No: ECE O48A/95-LA dated 17/10/95, vide the Suit No: ID/634/1999 at the Lagos State High Court, for a declaration of title to the aforementioned land. He had acquired the said land from the 1st defendant. He later discovered that the same land had been acquired by the Federal Government from the real land owners. He took necessary steps and ratified his title to the land with the Federal Government.
The 2nd defendant, who also claimed that he had acquired the same land from the 1st defendant, trespassed on the land. At the end of the trial, judgment was entered in favour of the respondent, who took steps and executed the judgment and thereafter took possession of the property. However, upon taking possession of the property, some thugs went to the property and chased him away from there.
Thereafter, the 3rd defendant/appellant commenced a fresh action vide the Suit No: ID/1357/2005, at the Court below, differently constituted, against the respondent. The 3rd defendant/appellant also claimed that he had acquired title in respect of the same land from the 1st defendant. The suit was dismissed for being an abuse of the process of Court on the ground that the ownership of the land in question had been determined vide the Suit No: ID/634/1999, which was not appealed against by any of the defendants.
The respondent took steps to commence contempt proceedings against the 3rd defendant/appellant who was in possession of the property in question. His efforts were to no avail because the case file on the matter was missing. He took further steps for a temporary case file to be opened for the matter. Again, that attempt was frustrated because the letter he wrote to the Chief Judge, also got lost. Nevertheless, the respondent visited the aforementioned property and discovered some other persons there on, who refused to tell him of the person who put them in possession of the property. Consequently, the respondent commenced a fresh action No: ID/61M/2011 at the Court below, again differently constituted, for recovery of possession of the property already for which possession was given to him vide the judgment in Suit NO: ID/634/1999.
The 3rd defendant/appellant’s application to be joined as a party to the fresh Suit NO: ID/61M/2011 was granted.
Thereafter, the suit proceeded to trial. However, despite several hearing notices served on the 3rd defendant/appellant, he did not attend the Court to defend the action. The matter was heard on 27th November, 2014 and adjourned for judgment. Meanwhile, on 24th February, 2015, the 3rd defendant/appellant, filed a Motion on Notice, pursuant to Order 48 Rules (2) &(3) of the Lagos State High Court (Civil Procedure) Rules, 2012, Section 36 (1) of the Constitution of the Federal Republic of Nigeria and under the Inherent Jurisdiction of the Court, for the change of his counsel. The application was not heard by the Court below. The learned trial judge rendered his judgment in favour of the respondent, on 21st October, 2015; which is the subject of this appeal. That is the chequered history of this matter.
The appeal is anchored on two grounds. They each complain, shorn of their particulars, thus:
GROUND ONE
The learned trial judge erred in law when he granted possession of the land the subject matter of this appeal to the respondent when the appellant has a motion on notice dated 24th day of February, 2015 for change of counsel which was not heard before the judgment delivered on the 21st day of October 2015 was delivered.
GROUND TWO
The learned trial judge erred in law when he proceeded to deliver judgment in favour of the respondent by granting possession of the land the subject matter of this appeal to the respondent when from the affidavit in support of the originating summons brought before him, it constitute an abuse of Court process.
In order to activate the prosecution of the appeal, the appellants’ brief of argument, which was prepared by Clement O. Bosa, Esq., was dated and filed on 26th February 2016. In response, the respondent’s brief of argument, settled by Jude Ehiedu, Charles Afolabi and Izuchukwu Oboko, was dated and filed on 30th March, 2016. Thereafter, the appellant’s reply brief, dated 29th April, 2016 was filed on same date.
The learned appellants’ counsel, identified two issues for the determination of the appeal. They are, to wit:
Whether the learned trial judge can proceed to deliver judgment in the suit leading to this appeal over a pending application without leading to a breach of the appellant’s right of fair hearing?(Ground one of the notice of appeal pages 310-316).
Whether the learned trial judge can proceed to deliver another judgment for possession in favour of the respondent, when there has been an existing judgment for possession in favour of the respondent which judgment has been executed by the respondent which makes the respondent’s originating summons before the lower Court an abuse of Court process? (Ground No. 2 of the notice of appeal, pages 310-316 of the records).
On his part, the learned respondent’s counsel also, nominated two issues for the determination of the appeal, namely:
Whether it can be said that the appellant’s application dated 24th of February, 2015 for change of counsel that was pending when the matter came up for judgment was not heard by the Court and if yes, whether in the circumstances of this case amounts to breach of the appellant’s right to fair hearing?
Whether the suit leading to this appeal can be said to be an abuse of Court process?
I should say that the two sets of issues suggested by both learned counsel herein, except for semantics, are the same. Therefore, I simply adopt the two issues formulated by the appellants’ learned counsel for the resolution of this appeal.
Appellants’ Arguments:
It is the submission of the appellants’ learned counsel that the delivery of the judgment by the trial Court over a live and pending application brought by the appellant was in breach of the appellants right to fair hearing. The appellant on the 24th of February 2015 filed an application for change of counsel which the learned trial judge had an obligation to consider before delivering his judgment. The application was filed on the 24th February, 2015, put in the Court’s record and the judgment appealed herein was delivered on the 21st of October 2015 which was a period of almost 9 months before the delivery of the judgment. The applicant’s chance to change his counsel to file a defence to the originating summons was therefore dashed. Even though the learned trial judge had already adjourned for judgment when the said application was filed, the fact that the application in question was filed, and it was existing in the Court’s file for a period of 9 months before judgment was delivered imposed a judicial obligation on the learned trial judge to pronounce on the application before proceeding to read his judgment. This error or omission had vitiated the judgment since the learned trial judge ought not to deliver his judgment over a live and extant and/or existing application.
Furthermore, it was submitted that it is settled point of law that the Court has a duty to hear and determine all pending applications, no matter how defective the application may be before judgment is delivered. The failure of which will render any judgment delivered a Nullity. Consequently, the failure of the trial Court to hear and determine the appellant’s motion on notice dated 24th day of February 2015, renders the judgment delivered by the trial judge on the 21st day of October 2015, a nullity. He relied on Faan v. Wamal Express Services Ltd (2011) NSC or Vol. 2 SC (Pt 11) 93, and Mobil Producing (Nig) Unlimited v. Monokpo (2004) All FWLR (Pt 195) 575 @ 628, where it was held that;
“a refusal of a Court to hear a motion is a breach of the right to fair hearing guaranteed under the Constitution” and that it is the duty of the Court to hear all pending applications, placed before it.
Arguing issue 2, the appellants’ learned counsel, contended to the effect that by the originating summons dated the 1st day of February 2011, the respondent commenced the action against the parties contained in Suit NO: ID/61M/2011. The parties and the subject matter contained in the originating summons are the same as in an earlier suit No. ID/634/99 decided by Hon. Justice A. OLATERU OLAGBEGI of High Court of Lagos State which judgment was delivered on the 25th day of October, 2005 in favour of the respondent. Learned counsel, referring to the affidavit in support of the originating summons filed before the Court below leading to the appeal, pointed out the following facts:
(a) That sometimes in 1999, the respondent noticed trespassers on his land which made him to commence suit No. ID/634/99;
(b) After the trial, the trial Court awarded judgment, in favour of the respondent;
(c) Based on the said judgment, the respondent applied to Court for warrant of possession; ?
(d) Pursuant to the warrant of possession, the respondent levied execution and possession was delivered to the respondent, and FORM “O” issued him;
(e) A week after, the defendants/judgment debtors and some other persons unknown forcefully re-took possession from the respondent;
(f) That the case file in suit No. ID/634/99 was missing and the respondent was unable to take further step to eject the defendants/judgment debtors and other persons unknown on the land and consequent upon that, he had to commence another fresh suit for re-possession.
He therefore contended that the commencement of another fresh suit against the same defendants whom the respondent had earlier obtained judgment against in respect of the same land in suit No. ID/634/99 constitutes an abuse of Court process and the learned trial judge based on the affidavit in support of the originating summons before him, ought to have struck out the suit in limine.
He further submitted that Order 53 of the High Court of Lagos State (Civil Procedure Rules) 2012, does not permit an action to be brought against persons against whom judgment had earlier been obtained. ?
The order does not also envisage a situation where the Order will be invoked for possession of a land in which there had been an existing judgment and possession delivered to the claimant/applicant. There cannot be two judgments in relation to the same land and execution, carried out twice vide two judgments in respect of the same land. The only legal remedy opened to the respondent was to commence a committal proceeding against the judgment debtor and their privies who can be regarded as persons unknown.
Respondent’s Arguments:
With respect to issue 1, the respondent’s learned counsel, submitted as follows: that at the commencement of this suit at the Court below, the Appellant was not initially a party to the suit but on his own volition and upon his application, he was joined as a party to the suit. After being joined and served with the originating process, he failed to file any process or take any further step in response to same. And that on the 2nd of October, 2014 when the matter came up for hearing, the Court discovered that the hearing notice was served on the Appellant by the Respondent but was not satisfied with the service.
The Court ordered the issuance and service of another hearing notice on the Appellant by the Registrar of the Court and the matter was adjourned to 20th of November 2014 for hearing. On this date, the Court did not sit and the matter was further adjourned to 27th of November, 2014 for hearing. Again, the Registrar of the Court issued and served the Appellant another hearing notice. On the 27th of November 2014 when the matter came up for hearing the Appellant was absent from Court. The Court after being satisfied that the Appellant was served with hearing notice, proceeded to hear the matter and adjourned same to 26th of February, 2015 for judgment. That it was while the matter was pending for judgment, when the Appellant filed the Notice/Application for change of counsel on the 24th of February 2015 i.e. two days to the day the matter was fixed for judgment. The judgment was not delivered by the Court until 21st of October, 2015. That the Appellant after filing the application for change of counsel did not file any Court process showing that he wanted to defend the action.
Hence, there was nothing more pending before the Court aside from the application for change of counsel. It was learned counsel’s submission that the Notice or application for change of counsel, as the case may be, is simply a notification to the Court and parties to the suit of change from one counsel to another and nothing more. That is, that whenever a Notice of Change or application for change of counsel is filed, the only purpose it serves is for the Court to take notice that the former counsel has ceased to represent the party on whose behalf it was filed. That what the Applicant for change of counsel needs to do on the date the matter came up for hearing is to inform the Court of his intention of changing his legal representation from the former counsel to a new counsel.
Apart from the Court taking notice of the change, there is nothing or no other business the Court is meant to perform. In fact, whether the Applicant was in Court or not, the Court will still take note of the change. The Appellant is not complaining that his counsel was in Court but was not heard by the Court as a result of the application not being taken. Neither the Appellant nor his counsel was in Court.
Furthermore, he submitted that by virtue of Order 48 Rule 2 of the Lagos State High Court (Civil Procedure) Rules, 2012 the application for change of counsel must be made at least 3 days before the date fixed for hearing.
In this case, the application for change of counsel was made after the matter was heard and 2 days before the date the matter was fixed for judgment. He insisted that before the matter was heard in Court, the Appellant was given series of opportunities to be heard but failed to take advantage these opportunities. He was served with series of Hearing Notices notifying him of the hearing date. He failed to appear in Court. Even in between the time of filing the application for change of counsel on the 24th of February 2015 and 21st of October 2015 when the judgment was delivered, the Appellant did not file any process in defence of the action. Furthermore, on the date the matter finally came up for judgment the Appellant was also not in Court.
Learned respondent’s counsel submitted that the position of the law is that where a party had been afforded requisite opportunity to put across his case but he failed to take advantage of such an opportunity, he cannot later on, turn around and complain that he was denied his right to fair hearing. He referred to Bill Construction Ltd. v. Imani & Sons ltd. (2006) 19 NWLR (pt. 1013) 1; Newswatch Communications ltd. v. Atta (2006) 12 NWLR (pt. 993) 144/171; and the Supreme Court decision in Sabiru Adebayo v. Attorney General of Ogun State (2008) 7 NWLR (pt. 1085) 201 at 222 paras H-C wherein it was he held that:
‘the fair hearing in the Constitution is machinery or locomotive of justice not a spare part to propel or vintage the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Courts to apply it to his advantage. On the contrary, it is formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases leave fair hearing constitutional provision alone because it is not available to them just for the asking.”
Responding to issue 2, the learned counsel to the respondent, submitted that there is no doubt that the two actions had to do with the property situate at No. 13 Williams Udofia Street Abule Suberu Oje Lagos/Abeokuta Express Way, Agege Market but, submitted that the reliefs sought in the two suits were totally different. The first action between Chief Augustine Ajuebor vs Sunday Soroyeun, Olagoke Akinkinmade with Suit No: 10/634/99 had to do with ownership of the property. As at when the previous action was commenced, the ownership of the property was in dispute. As a result of it, the Respondent approached the Court for a declaration of title. However, according to learned counsel, in the second suit leading to this appeal, the ownership of the property had been decided. The action had to do with a summary possession against persons in possession of the property without Respondent’s consent.
He placed reliance on; Order 53 (1) and (2) of the Lagos State High Court (Civil Procedure) Rules, 2012 to the effect that the Respondent who had been declared the owner of a property can bring a fresh action for a summary possession of the property where he alleges that the property is occupied by a person who is not a tenant, a tenant holding over, a licensee, or who had no consent to be on the property.
The action cannot by any sense of imagination be regarded as the same with the previous suit and as such an abuse of Court process. The Respondent had initially enforced the judgment in the previous suit by taking possession of the property. The Appellant organized thugs to chase him away and retake the possession of the property from the Respondent. The Respondent tried to commence contempt proceedings against the Appellant but the Court file could not be traced. He made several efforts to trace the file without success. He did a letter to the Chief Judge of Lagos State High Court requesting for a temporary file to be opened but the letter also got missing.
He therefore submitted that the only option open to the Respondent to retake the possession either from the Appellant or the person in occupation of the property without his consent is to commence a new suit since the former file cannot be traced and that is what the Respondent did since the issue of title had been put to rest. Furthermore, he submitted that the cases cited by the Appellant on abuse of Court process are inapposite because the Respondent has not used the machinery of justice to harass or intimidate the Appellant. The Respondent has not improperly employed the machinery of justice to oppress the Appellant. The action is simply for summary possession against unknown persons who were in possession of the land.
Resolution of issues
Fairness is the touchstone of justice, hence “the right to fair hearing, being a fundamental constitutional right guaranteed by the Constitution, the breach of it in any trial, investigation or inquiry, nullified the trial, investigation or inquiry and any action taken on it is also a nullity” – per Obaseki J.S.C. in Adigun v. Attor. Gen, Oyo State (1987) 1 NWLR (pt. 678) at 709.
The Supreme Court, more recently inS & D Construction Co. Ltd v. Chief Bayo Ayoku & Anor (2011) 6 SCNJ (pt. 1) 268 at 291 – 292; reiterated the essential attributes of fair hearing to the effect that: “The right to fair hearing is a constitutional right enshrined in Section 36 of the 1999 Constitution. The right to fair hearing is a very essential right for a person to secure justice. The basic attributes of fair hearing include:
(a) That the Court shall hear both sides not only in the case but also on all material issues in the case before reaching decision which may be prejudiced to any party in the case.
(b) That the Court or Tribunal gives equal treatment, opportunity and consideration to all concerned.
(c) That the proceedings be heard in public and all concerned shall be informed of and have access to such place of hearing,
(d) That having regard to all circumstances in every material decision in the case justice must not only be done but must manifestly and undoubtedly be seen to have been done.
Usani v. Duke (2004) 7 NWLR (pt. 871) pg. 116; Fagbule v. Rodrigues (2002) 7 NWLR (pt. 765) pg. 188; Adeniran v. NEPA (2002) 14 NWLR (pt. 786) pg. 30; Bamgboye v. University of Ilorin (1999) 10 NWLR (pt. 622) pg. 290; Awoniyi v. The Registered Trustees of the Rosicrucian Order (AMORC) (2000) 4 SC (pt. 1) 103.
The burden is on the party alleging breach of fair hearing in a case to prove the breach and he must do so in the light of the facts of the case. Maikyo v. Itodo (2007) 7 NWLR (pt. 1034) pg. 443.
The appellant cannot complain of breach of fair hearing where it was afforded the opportunity to present its case and to also defend the counter claim, but failed to avail itself of the opportunity. The appellant cannot blame the Trial Court for failure to prosecute its case. Okoye v. Nigerian Construction and Furniture Co. Ltd (1991) 6 NWLR (pt. 199) pg. 501; Omo v. Judicial Service Commission Delta State (2000) 12 NWLR (pt. 682) pg. 444; Ogolo v. Fubara (2003) 11 NWLR (pt. 31) pg. 231; Ossai v. Wakwah (2006) 4 NWLR (pt. 969) pg, 208.”
In the instant case, there is no dispute as to the fact that the appellant, had filed a Motion on Notice Pursuant to Order 48 Rules (2) and (3) of the Lagos State High Court of Justice (Civil Procedure) Rules, 2012, Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and under the Inherent Jurisdiction of the Court, for Change of his counsel. The application was supported with an affidavit and a written address. All these processes which were dated and filed on 24th February, 2015 are contained at pages 297-302 of the record of appeal. Unarguably, there is nothing in the record of appeal, which indicated that the said application was heard and determined by the learned trial judge before judgment on the case was delivered by his Lordship on 21st October, 2015. Therefore, there was a pending application which was not heard and determined by the learned trial judge before judgment on the case was rendered.
I have considered the submissions of the respondent’s learned counsel to the effect that, since the appellant’s motion on notice was merely for change of counsel, it did not matter that it was not formally heard by the learned trial judge. That appears to be the general belief by most legal practitioners. However, in the instant case, the appellant’s application was clearly in compliance with the provisions of Order 48 Rules (2) and (3) of the Lagos State High Court (Civil Procedure) Rules, 2012; which deal with applications for change of counsel and provide thus:
“48. 2. An application for a change of Legal Practitioner or withdrawal may be made by the Claimant or Defendant or the Legal Practitioner as the case may be, not less than three (3) clear days before the date fixed for hearing.
3. Where the application is made by a Legal Practitioner, it shall be served on all parties to the cause or matter and where applicable also on the outgoing Legal practitioner if he is not the Applicant.”
The above provision of the Lagos State High Court (Civil Procedure) Rules, 2012 is in accord with Rule 29 (2) of the Rules of Professional Conduct for Legal Practitioners, 2007, which provides that:
29. “(2) Where in litigation, a client changes his lawyer, both the old lawyer and new lawyer shall give notice of the change to the Court.”
And for the avoidance of doubt, “Lawyer” means legal practitioner as defined by the Legal Practitioners Act, as interpreted Rule 56 of the Rules of Professional Conduct for Legal Practitioners, 2007.
Furthermore, by virtue of Order 39 Rules 1(1)and (2) of the Lagos State High Court (Civil Procedure) Rules,2012, every application to be made to a Judge of the Court, must be on notice. It says:
39. “1. (1) Whereby these Rules any application is authorized to be made to a Judge, such application shall be made by motion which may be supported by affidavit and shall state under what Rule of Court or Law the application is brought.
(2) Every such application shall be accompanied by a written address in support of the relief sought.”
It is clear to me as crystal that the aforementioned appellant’s application for change of counsel has all the necessary trappings of and in full compliance with Order 39 Rules 1(1) and(2) read together with Order 48 Rules (2) and (3) of the Lagos State High Court (Civil Procedure) Rules, 2012. The aforesaid motion on notice, was a pending application, which was not heard by the learned trial judge before judgment on the case was delivered on 21st October, 2015. The law has remained well settled to the effect that where a motion on notice on any matter is duly placed before the Court for its consideration, whether it is foolish or childish, it must be heard, considered and determined by the Court. And where the Court, in its adjudicatory role failed to consider an application placed before it, but went ahead to render a judgment on the case, it is tantamount to a denial of fair hearing to the party who made the application and is adversely affected by the judgment. Dingyadi v. Independent National Electoral Commission & Ors (No. 2) 2010) 18 NWLR (pt.1224) 154; Mobil Producing Nig. Unlimited & Anor v. Chief Monokpo & Anor. (2003) 18 NWLR ( pt. 852) 346; (2003) 12 SCNJ 206 @ 238; NALSA & Team Associates v. Nigeria National Petroleum Corporation (1991) LPELR- 1935 (SC); (1991) 8 NWLR (pt. 212) 652 @ 676.
The consequences of a breach of the hallowed principle of fair hearing, is that the proceedings in which it occurred, is damnified and must be set aside. Salu v. Egeibon (1994) 6 NWLR (pt. 346) 23 @ 44; Ndukauba v. Kolomo (2005) 4 NWLR (pt. 915) 431; CITEC International Estate Ltd & Ors v. Francis & Ors (2014) LPELR- 22314 (SC).
In view of the foregoings, I am satisfied that issue 1 be and it is resolved for the appellant.
Issue 2, is with respect to the allegation of abuse of the process of Court. The use of the judicial process of the Court improperly by a party in an action deliberately to feather his own interest at the expense of the other party’s interest is a major feature of an abuse of the process of Court. Therefore, it is tantamount to an abuse of the process of the Court when a judicial process is issued by a party, primarily for the purpose of accomplishing the party’s interest willy nilly.
There are two suits to be considered in this matter in order to decipher whether the later suit is an abuse of the process of Court vis a vis the earlier suit. In the suit No: ID/634/1999, which was at the instance of the respondent, he had obtained judgment on 25th October, 2005 from the Court below per A. Olateru-Olagbegi, J., “for possession” of the land in dispute against the 2nd defendant in that suit. That is Olagoke Akinrinmade who was sued along with Sunday Soroyeun, as the 1st defendant therein. In order to fulfill the enjoyment of the order of possession of the said land, the respondent took steps and consequently obtained a warrant of possession of the same land and he levied execution thereon. Thereafter, possession of the said land was delivered to the respondent. The above scenario notwithstanding, a week after the respondent had taken possession of the said land, he was chased out from it by some unknown persons, who dispossessed him of the land. He took steps to eject the unknown persons, so that he could re-possess the land, all to no avail because the case file on the matter could not be found at the registry of the Court below.
In view of the foregoings, the respondent filed a fresh action, vide the suit No: ID/61M/2011, against Sunday Soroyeun and Olagoke Akinrinmade, as the 1st and 2nd defendants/respondents along with “Persons Unknown”. The 3rd defendant who is the appellant herein was joined to the action, upon his application to be so joined as an interested person in the action. The later action, that is, ID/61M/2011, was for:
“1. An Order for recovery of possession from the Defendants and every other person in occupation of the property situate at No. 13, Williams Udofia Street Abule Suberu Oje, Lagos/Abeokuta Express Way, Agege Market Road (Cover by plan No. ECE 048A/95-LA dated 17/10/95,
2. And for such further order(s) as this Honourable Court may deem fit to make in the circumstances.”
Unarguably, the two actions highlighted above, are in respect of the same land described above. The parties in the two actions are virtually the same, with the exception of the 3rd defendant/appellant and the Unknown Persons, as new parties in the later action. There is a subsisting judgment in Suit No. ID/634/1999 in favour of the respondent, for possession of the land in dispute. The later action in Suit No. ID/61M/2011 at the respondent’s instance, has to do with recovery of possession of the same land. The learned respondent’s counsel contends that the later action is not an abuse of the process of Court because the said action is permissible by virtue of Order 53 (1)and (2) of the Lagos State High Court (Civil Procedure) Rules, 2012, which provide thus:
53. 1. (1)This Order shall not apply where the person in occupation of land is:
(a) a tenant; or
(b) a tenant holding over after termination of his tenancy; or
(c) a licensee of the owner or person entitled to possession; or
(d) a person who had the consent of the predecessor in title of the person who is entitled to possession.
(2) Where a person claims possession of land which he alleges is occupied solely by a person not listed in Sub-rule (1) above, proceedings may be brought by Originating Summons in accordance with the provisions of this Order.”
The essence of the above Order of the Lagos State High Court (Civil Procedure) Rules, 2012 is for summary proceedings for possession of landed property occupied by squatters or without the owner?s consent.
Now, from the respondent’s showings, it is manifest that the 2nd and 3rd defendants had at one time or the other laid claim to the land in question and each separately traced their entitlement to it through the 1st defendant. In the respondent’s action vide Suit NO:ID/634/1999 against the 1st and 2nd defendants, the only relief he succeeded in obtaining from the Court below, was the possession of the land in question. His relief for a declaration of title to the said land was refused and struck out, meaning that the ownership of that land was not determined in respondent’s favour. In effect, he has no title to the said land. And there was no appeal by the respondent against the judgment in Suit NO: ID/634/1999 which denied him of the declaration of title to that land. I am unable to see how the provisions in Order 53, Rules 1 (1) and (2) of the Lagos State High Court (Civil Procedure) Rules, 2012 is available to the respondent’s action vide the suit NO: ID/61M/2011.
I am satisfied that the later suit by the respondent, that is, the Suit NO: ID/61M/2011, constitutes an abuse of the process of Court.
It is not acceptable as it clearly pollutes the judicial process and the cause of justice. I should end this judgment, by re-echoing the admonition by the cerebral jurist, Niki, Tobi JSC., in Agwasim v. Ojichie (2004) LPELR-256 (SC) @ page 14 thereof, thus:
“Litigation is not a game of chess where players outsmart themselves by dexterity of purpose and traps. On the contrary, litigation is a contest by judicial process where the parties place on the table of justice their different positions clearly, plainly and without tricks.”
Further see: Lokpobiri v. Ogola & Anor (2016) 3 NWLR (pt. 1499) 328; (2015) 11 S.C.N.J. 71; Falana v. Oloro (2013) 10 WRN 85.
In the end, issue 2 is resolved in favor of the appellant. Having resolved the two issues discussed in this appeal for the appellant, it follows that the appeal be and it is hereby allowed. Consequently, the judgment, rendered by S.O. Nwaka, J., in re-Suit NO: ID/61M/2011 on 25th October, 2015 at the Lagos State High Court, Ikeja Division, is hereby set aside. The said suit, stands dismissed. Each side shall bear own costs of the appeal.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother TOM SHAIBU YAKUBU JCA afforded me the opportunity of reading in draft before today the lead Judgment just delivered and I agree with the reasoning and conclusion contained therein, I adopt the Judgment as mine with nothing further to add.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have read the leading judgment of my learned brother, TOM SHAIBU YAKUBU, JCA which has just been delivered. I agree.
Appearances:
C. A. Bosa, Esq.For Appellant(s)
For Respondent(s)
