HAJIYA UMMU AMINU v. DR.MOHAMMED JULDE SULEIMAN (2019)

HAJIYA UMMU AMINU v. DR.MOHAMMED JULDE SULEIMAN

(2019)LCN/13809(CA)

In The Court of Appeal of Nigeria

On Friday, the 18th day of October, 2019

CA/YL/75/2016

RATIO

ABUSE OF COURT PROCESS: NATURE

The concept of abuse of Court process is imprecise. Abuse of Court process contemplates multiplicity of suits between the same parties in regard to the same subject matter on the same issue. The common feature of abuse of process of Court centres on the improper use of judicial process by a party in litigation aimed at interference with the due administration of justice. Some of the features of abuse of Court process include:
1) Filing of multiplicity of actions on the same subject matter against the same opponents on the same issues or numerous actions on the same matter between the same parties even where there is in existence a right to commence the action.
2) Instituting different actions between the same parties simultaneously in different Courts even though on differentgrounds.
3) Where two actions are instituted in Court, the second one asking for relief which may however be obtained in the first, the second action prima facie is vexatious and an abuse of Court process.
The claims or reliefs may be worded differently but it still amounts to an abuse of process where the end result of the two or more actions is the same. A litigant has no right to pursue two processes together which will have the same effect in two Courts at the same time. See R-Benkay Nigeria Limited V. Cadbury Nigeria Limited (2012) LPELR-7820 SC; Justice Oyeyemi (Rtd) V. Owoeye & Anor (2017) LPELR 41903 SC, Allanah & Ors V. Kpolokwu (2016) LPELR-40724 SC and Umeh & Anor V. Iwu & Ors (2008) LPELR 3363 SC.PER JAMES SHEHU ABIRIYI, J.C.A.

ABUSE OF COURT PROCESS: EFFECT OF A COURT PROCESS BEING ABUSIVE

The effect of abuse of Court process is the dismissal of the process which is abusive. See Dingyadi & Anor V. Independent National Electoral Commission (2011) LPELR 950 SC.PER JAMES SHEHU ABIRIYI, J.C.A.

ABUSE OF COURT PROCESSES: WHEN 2 OR MORE CLAIMS HAVE THE SAME RESULT THEN IT IS AN ABUSE OF COURT PROCESS REGARDLESS OF WHETHER OR NOT THEY ARE WORDED THE SAME WAY

The claims or reliefs may be worded differently but it still amounts to an abuse of process where the end result of the two or more actions is the same. A litigant has no right to pursue two processes together which will have the same effect in two Courts at the same time. See R-Benkay Nigeria Limited V. Cadbury Nigeria Limited (2012) LPELR-7820 SC; Justice Oyeyemi (Rtd) V. Owoeye & Anor (2017) LPELR 41903 SC, Allanah & Ors V. Kpolokwu (2016) LPELR-40724 SC and Umeh & Anor V. Iwu & Ors (2008) LPELR 3363 SC.PER JAMES SHEHU ABIRIYI, J.C.A.

JUSTICES

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria

Between

HAJIYA UMMU AMINU Appellant(s)

AND

DR. MOHAMMED JULDE SULEIMAN Respondent(s)

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling delivered on 16th February, 2016 in the High Court of Adamawa State sitting at Yola.

The Appellant was the Defendant in the High Court (Court below). The Respondent was the Plaintiff.

By a writ of summons and statement of claim, the Respondent claimed against the Appellant the following:
(a) An order of this Honourable Court directing the Defendant to return the Plaintiffs title document in respect of the Plaintiffs House at Dougirei, particularly Statutory Certificate of Occupancy No. GS/7641.
(b) An order of this Honourable Court directing the Defendant to immediately vacate the Plaintiff?s house at Dougirei Quarters in Jimeta Yola.
(c) A perpetual injunction restraining the Defendant from entering the plaintiff?s house and premises at Dougirei Quarters in Jimeta Yola, covered by the Statutory Certificate of Occupancy No. GS/7641.
(d) An order directing the Defendant to immediately return the Plaintiff?s official car (Honda Accord) with Registration No. BQ

787RSH Chasis No. JHMCM46707202091 and Engine No. K20A85001922, to the Plaintiff.
(e) Ten Million Naira, general damages for trespass to the Plaintiff?s house and loss of use of the Plaintiff?s official vehicle.

The Appellant raised a preliminary objection to the claim of the Respondent at the Court below upon the following grounds:
1. That there is a similar Suit before the Upper Area Court No. 1, Yola in Suit No. UAC1Y/CV/FI/236/11 between Engr. Ummu Aminu Vs. Dr. Mohammed Julde Suleiman & 2 Ors in respect of land at Dougirei drive;
2. The Plaintiff/Respondent had raised a Preliminary Objection on grounds of jurisdiction as to the land but was overruled and he has not appealed.
3. The car with Registration No. BQ 787 RHS was a gift to the defendant by the Plaintiff during the subsistence of Islamic Law marriage between the parties;
4. The Hon Court lacks jurisdiction to entertain the issue of a gift under Islamic Law.?

The notice of preliminary objection of the Appellant was supported by an affidavit of six paragraphs to which two Exhibits were annexed.

The Respondent filed a counter affidavit of four paragraphs in opposition.
After considering the affidavit evidence of the parties and addresses of their counsel, the Court below dismissed the notice of preliminary objection of the Appellant as lacking in merit.

Displeased with the dismissal of the preliminary objection, the Appellant has appealed to this Court by a notice of appeal dated and filed 29th February, 2016. The notice of appeal contains four grounds of appeal.

From the four grounds of appeal, the Appellant presented the following lone issue for determination.
Whether based on the Writ of Summons, statement of Claim, the Applicant?s affidavit in support of the Preliminary Objection as well as the Exhibits and the Respondent?s Counter-affidavit the High Court has jurisdiction to entertain the Respondent suit. (grounds 1, 2, 3 and 4).

The Respondent did not file any brief. He was served with the Appellant?s brief on 27th July, 2019. On the 23rd September, 2019 when the appeal was heard, the Respondent was absent from Court despite service of hearing notice on him.

Arguing the sole issue for determination, learned counsel

for the Appellant submitted that abuse of process means having a multiplicity of actions on the same subject matter between the parties before the same or different Courts. The Court was referred to Unity Bank Plc V. Olatunji (2013) 15 NWLR (Pt. 1378) 507 at 533-534.

It was submitted that in considering abuse of Court process by multiplicity of actions, the Court will look at the affidavit in support of the motion, the statement of claim and the counter affidavit. It will not matter whether the defendant filed a defence or not. The Court was referred to Usman V. Baba (2005) 6 NWLR (Pt. 917) 94 at 133.

It was pointed out that before the Respondent filed the suit at the High Court there was a pending suit in the Upper Area Court, No. 3 Yola in Suit No. UAC3Y/CV/FI/31/11 in respect of the same property which was later transferred to Upper Area Court No. 1 Yola in Suit No. UAC1Y/CV/FI/236/2011 in which the Attorney-General and Adamawa State Ministry of Land and Survey were nominal parties in respect of the same subject matter. The Court was referred to Exhibit A attached to affidavit in respect of the preliminary objection particularly the reliefs sought.

It was pointed out that Respondent raised a preliminary objection to the suit at the Upper Area Court on the ground that the Upper Area Court had no jurisdiction to entertain the matter as the house in dispute is covered by a Certificate of Occupancy No. GS/7641. That the Upper Area Court dismissed the preliminary objection of the Respondent and assumed jurisdiction over the matter which is presently pending at the Upper Area Court No. 1 Yola.

That the Respondent did not appeal against the ruling of the Upper Area Court No. 1. Instead he filed a suit in respect of the same subject matter, that is the house covered by Certificate of Occupancy No. GS/7641 before the High Court in Suit No. ADSY/48/13 while the suit in the Upper Area Court No. 1 Yola is pending.

It was submitted that it is not in dispute that Suit No. ADSY/48/13 in the High Court Adamawa State was filed during the pendency of suit No. UAC1Y/FI/236/2011 between the parties in Upper Area Court No. 1 Yola. It was submitted that when a Court is faced with this type of situation, what the Court should do in the circumstance is to compare the two processes before it. In this case, the Court

should look at the claim of the Respondent before the High Court and the claim of the Appellant before the Upper Area Court No. 1 Yola to see whether the two suits are the same.

The two suits in both cases are the same, it was submitted, except for the nominal parties in the Upper Area Court whose names were later struck out by Upper Area Court No. 1 Yola. The Court was urged to hold that the parties are the same and the subject matter is the same matter.

It was submitted that when two cases are pending in respect of the same subject matter, the latter constitutes an abuse of Court process. The Court was referred to Daniel v. FRN (2014) 8 NWLR (Pt. 1410) 570 618. By the record of the Court, the High Court case is the latter case, it was argued and it should be dismissed.

The Respondent, it was pointed out, raised a preliminary objection before the Upper Area Court on the ground that it is only the High Court that has jurisdiction to try the suit because of the nature of the property. The Upper Area Court overruled the Respondent. Instead of appealing the ruling of the Upper Area Court, the Respondent filed a fresh suit before the High Court.

It was submitted that the suit filed before the High Court is an abuse of Court process. The Court was referred to Eleburuike v. Tawa (2010) LPELR-4098 CA 56.

It was submitted that the basis of the rule regarding abuse of Court process is to avoid multiplicity of proceedings that give rise to conflicting decisions of Courts. It was submitted that if the High Court sitting as a Court of first instance gives a different judgment from that of Upper Area Court on the same issue, there would be confusion. There would be two conflicting decisions and each party will follow the one he considers favourable to him and this will bring a state of anomie in the system. The Court was referred to Dumez (Nig.) PLC V. U.B.A. Plc. (2006) 14 NWLR (Pt. 1000) 515 at 526.
It was submitted that abuse of Court process should be visited with a dismissal of the case that constitutes the abuse.

It was further submitted that only the Area Court and the Sharia Court have jurisdiction over the subject matter of the suit anyway. It was submitted that the High Court has no jurisdiction to entertain the issue of gift under Islamic Personal Law. The Court was referred to

jiji V. Abare (1999) 1 NWLR (Pt. 586) 243 at 249.

It was further submitted that the act of the Respondent is synonymous with forum shopping because the ruling of the Upper Area Court did not favour him he ran to the High Court. It was submitted that this act is an abuse of Court process. The Court was referred to Dingyadi v. INEC (2010) 18 NWLR (Pt. 1224) 154 at 207.

grounds.
3) Where two actions are instituted in Court, the second one asking for relief which may however be obtained in the first, the second action prima facie is vexatious and an abuse of Court process.
The claims or reliefs may be worded differently but it still amounts to an abuse of process where the end result of the two or more actions is the same. A litigant has no right to pursue two processes together which will have the same effect in two Courts at the same time. See R-Benkay Nigeria Limited V. Cadbury Nigeria Limited (2012) LPELR-7820 SC; Justice Oyeyemi (Rtd) V. Owoeye & Anor (2017) LPELR 41903 SC, Allanah & Ors V. Kpolokwu (2016) LPELR-40724 SC and Umeh & Anor V. Iwu & Ors (2008) LPELR 3363 SC.

The effect of abuse of Court process is the dismissal of the process which is abusive. See Dingyadi & Anor V. Independent National Electoral Commission (2011) LPELR 950 SC.

The claim of the Respondent in the High Court has been reproduced elsewhere in this judgment. The claim of the Appellant at the Upper Area Court 3 Yola which was later transferred to the Upper Area Court 1 Yola is reproduced immediately

hereunder.
(i) An Order of Court confirming the gift of the house located at Dougirei residential layout Jimeta/Yola covered by C of O No. GS/7641 made by the 1st Defendant to the Plaintiff;
(ii) An Order of Court declaring the gift of the house in (i) above as valid and subsisting under Sharia;
(iii An Order restraining the 1st Defendant, his agents, servants or privies or howsoever from entering, remaining, ejecting, renovating or adversely dealing with the house located at Dougirei residential layout, Jimeta-Yola covered by C of O GS/7641 subject matter of gift until the final determination of this suit;
(iv) An order restraining the 2nd Defendant, its agents, servant or any person acting through it from processing title documents by way of Deed of Assignment in respect of house covered by C of O No. GS/7641 until the final determination of this suit;
In the alternative above.
(v) An order of this Hon Court that the 1st Defendant should pay the sum of N23,038,440.00 to the plaintiff as monies spent in developing the property to its present condition and/or the value of the developments made by the Plaintiff on the

property;
(vi) Any other order(s) the Court may deem fit to make in the circumstances.

Paragraphs 2, 5, 6, 17 and 18 of the ?Amended ?particulars of claim? of the Appellant at the Upper Area Court reproduced immediately hereunder read as follows:
2. The Plaintiff and the 1st Defendant were husband and wife married under Islamic Law at the time the gift of the subject matter of this Suit was made to the Plaintiff.
5. The Plaintiff avers that sometime in 2006, the Defendant made a gift of a 2 bedroom flat (hereinafter called the house) located at Dougirei residential layout, Jimeta-Yola covered by C of O of GS/7641 to the Plaintiff.
6. The Plaintiff accepted the gift of the house as a result of which the 1st Defendant handed over the original copy of C of O GS/7641 to the Plaintiff which copy is still in the Plaintiff?s possession.
17. The Plaintiff also avers that the gift of the subject matter was made to her by the 1st Defendant as her husband during the subsistence of Islamic Law marriage.
18. The 1st Defendant has not revoked the gift of the house made to the Plaintiff.

Paragraphs 3, 4 and 8 of the Respondents statement of claim in the High Court read thus:
3. The Plaintiff and the Defendant were at one time husband and wife but the Plaintiff has since divorced the Defendant under Islamic Law.
4. While the Plaintiff and the Defendant were husband and wife, the Defendant pleaded with the Plaintiff to allow her use the Plaintiff house at Dougirei Quarters as a collateral or security for a loan facility the Defendant obtained from the Nigerian Agricultural, Cooperative and Rural Development Bank Limited, which request was granted by the plaintiff.
8. Despite being divorced from the plaintiff, the Defendant has taken over the Plaintiff?s house at Dougirei Quarters and will not allow the Plaintiff or anyone acting through the plaintiff to enter the premises.?

It is clear from the reliefs sought and the averments in the pleadings of both parties reproduced in part above, that both parties are claiming a house at Dougirei. If the Respondent was dissatisfied with the ruling of the Upper Area Court clothing itself with jurisdiction to entertain the suit, his remedy was in an appeal to the High

Court against that ruling and not to institute a similar suit at the High Court while the suit at the Upper Area Court was pending.
I agree entirely with learned counsel for the Appellant that the suit before the High Court, Suit No. ADSY/48/2013 instituted by the respondent is an abuse of process. The suit before the High Court is hereby dismissed. Appeal allowed.
Parties shall bear their respective costs of the appeal.

CHIDI NWAOMA UWA, J.C.A.: I read in advance the judgment of my learned brother, JAMES SHEHU ABIRIYI, JCA.

I agree with the decision of my learned brother allowing the appeal and dismissing the action instituted at the High Court which is between the same parties over the same subject matter that was pending at the Upper Area Court. The Courts have always frowned at forum shopping by litigants, moreso where a matter is pending before another Court. It is an abuse of Court process, which is not merely an irregularity that could be pardoned or overlooked but, it constitutes a fundamental defect, the effect of which would lead to a dismissal of the process that is abusive. In the case of ARUBO VS. AIYELERU (1993) 3 NWLR (PT. 280) Page 125,

the Supreme Court held that once a Court is satisfied that the proceeding before it amounts to an abuse of process, it has the right or duty to invoke its powers to punish the party which is in abuse of its process. The resultant effect is a dismissal of the action which constitutes the abuse, in the present case, the action instituted at the High Court. See, ADESANOYE VS. ADEWOLE (2000) 9 NWLR (PT. 127) Page 671 and DINGYADI & ANOR VS. INEC & ORS (2011) LPELR ? 950 (SC). For the fuller reasons in the leading judgment, I also dismiss the suit before the High Court in Suit No. ADSY/48/2013 for being an abuse of Court process. I abide by the order made as to costs in the leading judgment.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in draft the Judgment just delivered by my learned Brother JAMES SHEHU ABIRIYI JCA. I agree entirely with the reasoning and conclusion therein that if the Respondent was dissatisfied with the Ruling of the Upper Area Court clothing itself with jurisdiction to entertain the Suit, his remedy is to Appeal to the High Court against it and not instituting a similar suit before the High

Court. I also allow the Appeal and dismiss the Suit Number ADSY/48/2013 instituted by the Respondent before the High Court. I abide by the order as to costs.

Appearances:

V.G. Abasiodiong
For Appellant(s)

Respondent not representedFor Respondent(s)

Appearances

V.G. AbasiodiongFor Appellant

AND

Respondent not representedFor Respondent