ABAYOMI FABUNMI V. THE REGISTERED TRUSTEES FOURSQUARE GOSPEL CHURCH IN NIGERIA
(2011)LCN/4983(CA)
In The Court of Appeal of Nigeria
On Monday, the 12th day of December, 2011
CA/I/315/09
RATIO
ABUSE OF COURT PROCESS: WHAT AN ABUSE OF COURT PROCESS ENTAILS; WHAT MUST BE SHOWN TO SUSTAIN A CHARGE OF ABUSE OF PROCESS
What then is “abuse of court process” in the context of the matters under consideration? In the case of Umeh V. Iwu (2008) 8 NWLR (Pt. 1089) 225, the Supreme Court observed: “Generally, abuse of process contemplates multiplicity of suits between the same parties in regard to the same subject matter and on the same issues. To institute an action during the pendency of another suit claiming the same relief is an abuse of court process, and the only course open to the court is to put an end to the suit. It does not matter whether the suit is on appeal, the subsequent action would constitute an abuse of process. The attitude of the court is to strike out the suit filed in abuse of process. Abuse of court process therefore simply, in practical sense denotes a situation where a party has instituted a multiplicity of suits against the same opponent in respect of the same subject matter and on the same issues. This manner of using court process which is obviously lacking in bona fide leads to the irritation and annoyance of the other party and thus impedes due administration of justice. Therefore to sustain a charge of abuse of process there must coexist inter alia: (a) A multiplicity of suits (b) Between the same opponents (c) On the same subject matter; and (d) On the same issues. All these pre-conditions are mutually inclusive as they are conjunctive… Ogoejeofo v. Ogoeieofo [2006] 3 NWLR (Pt. 966) 205, Okafor v. A.G. Anambra State (1991) 6 NWLR (Pt. 200) 659…”Per Chukwuma-Eneh JSC, @ 243- 244 C-A. It is important to note that the conditions are mutually inclusive and conjunctive. For the suit to be classified as abuse of court process, all the conditions must co-exist. If one condition is missing, then there is no abuse of court process. PER CHINWE E. IYIZOBA, J.C.A.
ORIGINATION SUMMONS: NATURE OF AN ORIGINATING SUMMONS
In the case of Famfa Oil Limited v. Attorney-General of the Federation (2003) 9-10 SC 31 referred to by Mr. Fabunmi, the Supreme Court per Belgore JSC (as he then was) observed: “The very nature of an Originating Summons is to make things simpler for hearing. It is available to any person claiming interest under a deed, will or other written instrument whereby he will apply by originating summons for the determination of any question of construction arising under the instrument for declaration of his interest…..It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to facts but what the plaintiff is claiming is the declaration of his rights. If there are serious dispute as to facts then a normal writ must be taken out and not originating summons…” See also the following cases: Doherty v. Doherty (1968) NMLR 241: National Bank of Nigeria v. Ayodele Alakija (1978) 9 & 10 SC 591 Din v. Attorney-General of the Federation (1986) 1 NWLR (Pt. 17) 471: Inakoju v. Adeleke (2007) 1 SC (part 1) 1. From the many authorities cited and discussed in the briefs, it is obvious that as far as what the law is as regards when originating summons is appropriate for the commencement of an action, the parties are ad idem. PER CHINWE E. IYIZOBA, J.C.A.
RULES OF COURT: WHETHER WHERE RULES OF COURT ARE IN LINE WITH THE FAIR HEARING PRINCIPLES ORDER A SPECIFIC CONDUCT ON THE PART OF THE PARTIES THE COURT HAS A DUTY TO ENFORCE THE RULES
The Supreme Court case of M.M.S. Ltd v. Oteiu (2005) 14 NWLR (Pt. 945) referred to by Mr. Agboola is very apposite: “A court of law can indulge a party only within the confines of its rules. In otherwords a court of law can indulge a party in so far as its rules permit. Where rules of court in line with the fair hearing principles order a specific conduct on the part of the parties, the court has a duty to enforce the rules. In such a situation, the defence of fair hearing is not available to the aggrieved party because the rule itself has complied with fair hearing. In the instant case, the trial judge accommodated the respondents in many respects; all in a genuine effort to do justice but the counsel did not take advantage of the fair mind of the trial judge. No party has the right to hold a court of law to ransom and from the totality of the conduct of the respondents; this is what they tried to do. PER CHINWE E. IYIZOBA, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A.A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
ABAYOMI FABUNMI
(For himself and on behalf of the Estate of late Chief Ayo Martins) – Appellant(s)
AND
THE REGISTERED TRUSTEES FOURSQUARE GOSPEL CHURCH IN NIGERIA – Respondent(s)
CHINWE E. IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Onibokun J. of the Osun State High Court, Ile-Ife Judicial Division delivered on the 21st day of May 2009 in an undefended and uncontested originating summons filed by the respondent herein. The facts of the case are that the respondent Church bought a piece of land from one Chief Ayo Martins (deceased) in the year 2001 and went into possession but was challenged by a sitting tenant who filed an action against the respondent, Chief Ayo Martins and two others to protect his tenancy. The present appellant initially represented the respondent and Chief Martins in the suit until the respondent found out that the appellant was working hand in gloves with the tenant and then briefed another counsel. According to the respondent, the tenant later left the premises long after his tenancy expired and abandoned the suit which was struck out. Along the line Chief Martins died. The appellant claiming to be an executor of the will of Chief Martins decided to take over the property on the land alleging that the property earlier sold to the respondent, a sale which the appellant defended at a point is now part of the estate of Chief Martins in his will. The respondent then filed this originating summons against the appellant as executor of the estate asking the lower court to interpret both the agreement for the sale of the land and the will and to determine the following questions of law:
(a) Whether having voluntarily entered the agreement of sale made between himself and the plaintiff on 24th April 2001 upon consideration furnished by the plaintiff the late Chief Ayo Martins or anyone claiming through him could further deal with the said property.
(b) Whether the defendant is by law entitled to take possession of the aforementioned property or deal with same in any manner prejudicial to the plaintiff by the sole (assumed) privilege of being named an executor in the purported will of late Ayo Martins.
In consequence of answers to the above questions, the respondent as plaintiff in the lower court claimed the following reliefs:
1. A declaration that the plaintiffs are entitled to take possession of the property lying, being and situate at No. 38 Chief Ayo Martins Close, off Ebenezer Baptist Church Road, opposite Ife Girls High School, Eleyele, Ile-Ife consisting of a bungalow building and an open land demarcated by the Plaintiffs’ survey pillars no. SAP 7216, SAP 7217, SAP 7218 and SAP 7219 dated 22/3/2001.
2. A declaration that the defendant is not entitled to deal with the aforesaid property in any manner prejudicial to the interest of the plaintiffs.
3. An order that as successor of late Chief Ayo Martins the defendant shall specifically perform the agreement of sale dated 24th April, 2001 by taking all/any steps required at law equity or statute to carry out the intentions of the parties expressed in the said agreement.
A written address in support of the originating summons was filed by the plaintiff/respondent on 14/4/08. The defendant/appellant did not file a counter affidavit or written address by way of defence to the originating summons. Rather on 12/3/07, he filed a preliminary objection, praying the court to strike out the suit on three grounds: (1) that the suit has the same features as suit no. HIF/34/05 between himself and (a) Commissioner of Police Osun State, (b) Mr. Olaoluseni Osho (Area Commander Moore Police Station Ife) (c) Pastor Ife Adwunmi (Pastor Four Square Gospel Church Ile-Ife); (2) that this suit (originating summons) was commenced by wrong procedure; (3) that the determination of suit no. HIF/34/05 which was first filed would resolve all the issues being raised in this suit, so that this suit is an abuse of court process. After the parties had joined issues on the preliminary objection, the learned trial Judge gave a considered ruling on 4/12/08 dismissing the objection on the ground that the plaintiff in this suit is not a party in HIF/34/05 as the Registered Trustees of Foursquare Gospel Church is a distinct legal personality from Pastor Ife Adewunmi and that the reliefs are not the same. On the procedure for commencing the suit, the learned trial judge ruled that what he had before him in the originating summons is the construction of the agreement and the will and that the suit is not an abuse of court process. Thereafter, the suit suffered several unnecessary adjournments, all at the instance of the appellant. At a point, the appellant moved a motion to adjourn the case sine die which was opposed by the respondent. The judge wrote a short ruling refusing the application and ordered the appellant to file his written address to the originating summons and adjourned the case for the adoption of his address. The appellant did not file his counter affidavit and address; and further frustrated the hearing of the case by failing to attend court on other adjourned dates. Finally, the Judge fixed a definite date for judgment in the matter. On that date, the appellant brought applications to arrest the judgment and to have the case transferred to another Judge.
The trial judge after hearing the appellant dismissed the applications and delivered judgment in the originating summons. The learned Judge answered the two questions in the originating summons in the negative and granted reliefs 1 & 2 in the originating summons. The appellant has now appealed to this court against the judgment. Out of his 7 grounds of appeal, the appellant formulated the following issues for determination:
(1) Whether the originating summons procedure is suitable to decide title to land when the facts are seriously disputed and the proceedings are hostile and controversial proceedings so called. Ground 1.
(2) Whether it is not abuse of court process for the respondent (plaintiff at the lower court) to file this case originating summons on appeal at the lower court, high court 2, Ile-Ife Osun State when the suit No HIF/34/2005; writ of summons and statement of claim was still pending before the same court, seeking to decide title on the same bungalow building, at the same time and between the same parties. Ground 2.
(3) Whether it is not denial of fair hearing to the appellant for the lower court to decide this suit on appeal HIF/M61/05, between The Registered Trustees Foursquare Gospel Church in Nigeria v. Abayomi Fabunmi before Suit No. HIF/34/2005, between Abayomi Fabunmi v. Commissioner of Police and 2 ors which was filed earlier; both suits seeking to decide title on the same bungalow building at the same time, and between the same parties. Ground 3.
(4) Whether it is right for the lower court to assume jurisdiction to deliver judgment in this case on the 21st of May 2009 after objection had been raised to the court assuming further jurisdiction via an application dated the 20th of May 2009.
Ground 4.
(5) Whether the lower court was right to grant the respondent relief at the lower court to the effect of granting orders on the house No 38 Ayo martins close, off Ebenezer Baptist Church Road, opposite Ife Girls High School, Eleyele, Ile-Ife, the disputed bungalow building with its adjoining frontage, while the respondent’s prayers were actually on the house No 1 and 2, Chief Ayo martins Close, off Ebenezer Baptist Church Road, Ile-Ife which is a non-existing house. Ground 7.
(6) Whether the lower court was right to grant order to the effect that the appellant (defendant in the lower court) is not entitled to deal with the aforesaid property in any manner prejudicial to the interest of the plaintiff when the same court granted order for possession in favour of the respondent (plaintiff at the lower court) at the same time. Ground 5.
Out of the appellant’s 7 grounds of appeal, the respondent formulated the following issues for determination:
(a) Whether the originating Summons procedure adopted in this suit is proper.
(b) Whether the suit is an abuse of court process
(c) Whether the High court had jurisdiction to entertain the suit
(d) Whether the judgment/decision of the lower court was right in view of the materials placed before it
(e) Whether this appeal has any merit in view of the attitude of the appellant at the lower court and the fact that the case stood undefended at the lower court.
The appellant in his reply brief criticized the respondent’s issues (d) and (e) as incompetent. He observed:
“The issues numbered (d) and (e) are clearly incompetent, being issues that did not arise from the Appellant’s issues for determination or from the grounds of appeal.”
Counsel urged us to discountenance the issues. It is not the law that issues formulated by the respondent must arise from the appellant’s issues. What is required is that the respondent’s issues if he chooses to formulate his own issues without filing a cross appeal must be based on the appellant’s grounds of appeal. Arguments on issues not based on grounds of appeal are liable to be discountenanced by the court and the issues struck out. Ibator v. Barakuro (2007) 4 SC (Pt 1) 1; Eloichin Nigeria Ltd. v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47: Momodu v. Momoh (1991) 2 SCNJ 15 @ 24. Issue (e) as framed by the respondent does not arise from the appellant’s grounds of appeal. It is hereby struck out. The points arising there from were argued in the other grounds of appeal.
I have examined carefully the two sets of issues formulated by the parties. They are basically the same except that the issues as formulated by the respondent are simpler and shorn of the disputed additives in the appellant’s issues. I shall therefore adopt the respondent’s issues in determining this appeal.
ISSUE ONE:
Whether the originating summons procedure adopted in this suit was proper.
Mr. Fabunmi in his argument on this issue set out the provisions of Osun State High Court Civil Procedure Rules on originating summons and submitted that the so called sale agreement which Chief Ayo Martins purportedly executed in favour of the respondent transferring title to the respondent is seriously disputed and challenged as a valid document capable of transferring title. Relying on a number of authorities, counsel submitted that the proceedings commenced by the respondent were hostile proceedings and that originating summons is inappropriate where the facts are likely to be in dispute. Counsel submitted that the lower court ought to have struck out the originating summons as inappropriate in commencing the proceedings.
Mr. Agboola for the respondent in his brief on this issue submitted that this suit was filed on 18/11/05 when the High court Rules Osun State 1988 was in operation and that by virtue of Order 38 of the said rules, originating summons procedure may be used where the suit involves mainly construction of documents and when the facts are largely undisputed. Counsel submitted that the rules merely summarize the general law in Nigeria on the use of originating summons. Counsel cited the cases of Odukwe v. Achebe (2008) All FWLR (Pt. 427) and Doherty v. Doherty (1968) NWLR @ 241.
Counsel further submitted that what fell to be decided in the originating summons are the rights of a testator under a will to deal with properties already disposed inter vivos by testamentary instrument. The document evidencing the disposition inter vivos, the agreement of sale and the testamentary document, the will under which the appellant claimed were put before the court. Counsel argued that the originating summons procedure was properly used because all that the court had to do was to interpret the above documents exhibited before it. Counsel submitted that the facts in this case were not disputed as the appellant did not file a counter affidavit to the affidavit filed by the respondent and must therefore be deemed to have admitted those facts.
It is my view that Counsel, Mr. Fabunmi and Mr. Agboola stated correctly with authorities the law as to when originating summons is appropriate in the commencement of a suit. In the case of Famfa Oil Limited v. Attorney-General of the Federation (2003) 9-10 SC 31 referred to by Mr. Fabunmi, the Supreme Court per Belgore JSC (as he then was) observed:
“The very nature of an Originating Summons is to make things simpler for hearing. It is available to any person claiming interest under a deed, will or other written instrument whereby he will apply by originating summons for the determination of any question of construction arising under the instrument for declaration of his interest…..It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to facts but what the plaintiff is claiming is the declaration of his rights. If there are serious dispute as to facts then a normal writ must be taken out and not originating summons…”
See also the following cases: Doherty v. Doherty (1968) NMLR 241: National Bank of Nigeria v. Ayodele Alakija (1978) 9 & 10 SC 591: Din v. Attorney-General of the Federation (1986) 1 NWLR (Pt. 17) 471: Inakoju v. Adeleke (2007) 1 SC (part 1) 1.
From the many authorities cited and discussed in the briefs, it is obvious that as far as what the law is as regards when originating summons is appropriate for the commencement of an action, the parties are ad idem.
They are however miles apart as to whether it is appropriate in the instant case. Applying the principles in the authorities cited above to this appeal, it is not in doubt that the case at the lower court called for the interpretation of the agreement of sale of the property in dispute and the will of Chief Ayo Martins and then the declaration of the interest of the respondent. There are instances when from merely looking at the affidavit filed in support of the originating summons it will be obvious that the case is not one that should have been brought by originating summons. This is where it is obvious from the processes filed by the plaintiff that the issues are contentious or hostile. In the case of Ejura v. Idris (2006)4 NWLR (Pt. 971) 538, where the Appellant sued the Respondent at the Federal High Court by originating summons seeking the nullification of his election as the Governor of Kogi State on grounds that he gave false information on INEC FORM CF 001, Court of Appeal, Abuja Division per Rhodes-Vivour JCA (as he then was) observed:
“Where it is obvious from the state of the affidavits that there would be an air of friction in the proceedings then an originating summons is not appropriate. A writ of summons would suffice in such circumstances… The appellant seeks the removal of an elected Governor on the ground that form filled by him for the gubernatorial election contained false information…Surely the appellant never expected the 1st respondent to agree to or concede to all the damaging facts to his person in the affidavit in support.
A look at the questions for determination on the face of the originating summons, the reliefs sought and the affidavit in support show beyond doubt that if trial proceeded at the court below, it would have been hostile proceedings which would involve contentious issues and questions of fact which can only be resolved by oral evidence from the parties and their witnesses.” pp560-561 H-B.
See also Standard Cleaning Service Company v. The Council of Obafemi Awolowo University Ile-Ife (unreported judgment of Court of Appeal Akure in CA/I/M211/07 delivered on 7/12/10.
In the instant case however it is not apparent from the questions for determination in the face of the originating summons, the reliefs sought and the affidavit in support that the issues will be contentious. It appears to be a simple case of interpretation of the relevant documents agreement of sale and the will. If the appellant had filed a counter-affidavit raising contentious issues, the court would then have had to assess the situation to see whether originating summons was appropriate.
By failing to file a counter-affidavit, the defendant is presumed to have demurred and admitted the facts deposed to in the affidavit filed in support of the originating summons. From the record of appeal, the learned trial Judge gave the appellant every opportunity to file his counter affidavit and written address, the appellant stubbornly refused to do so. What then did he expect the trial Judge to do? The Judge rightly took the only option available to him; treat the case as undefended. It is simply too late in the day for the appellant to come to this appeal court to tell us in his brief of argument that the agreement of sale is seriously disputed and challenged as a valid document capable of transferring title; or that the respondent cannot bring the document from its own custody, a document which the opponent has serious objection to and expect the court to interpret it. These are all matters that should have been raised in a counter-affidavit in the lower court. See Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt. 50) 350. The originating summons procedure adopted in this suit is appropriate from the processes filed as there was no counter-affidavit to support the appellant’s contention that the facts were disputed. This issue is resolved against the appellant.
ISSUE TWO
Whether the suit was an abuse of courts process
On issue 2, Mr. Fabunmi submitted that it is an abuse of court process for the appellant to have filed this suit when suit No. HIF/34/05 instituted earlier between the same parties and same subject matter is pending in the same court. Counsel submitted that suit No HIF/34/05 had been on appeal after the learned trial Judge refused to grant his prayer for interlocutory injunction restraining the respondent’s members from going on the property pending the determination of the suit. Counsel further claimed that because all the necessary materials are before the Court of Appeal, they are also seeking from the Court of Appeal title to the bungalow in addition to injunction and all to the knowledge of the lower court and the respondent. Citing some authorities Counsel submitted that the trial judge ought to have struck out the suit as an abuse of court process. Counsel argued that both the respondent and the trial Judge committed serious error of law in their view that the parties in the suit are different in that the respondent herein Registered Trustees of Foursquare Gospel Church is a different legal entity from the Pastor of the Church. Counsel submitted that it is a “funny argument” to say that the pastor, the head of a Church branch cannot be sued as representing his church just as the appellant herein was sued as representing the estate of late Chief Ayo Martins. Counsel discussed at length with authorities the incidence of representative actions and opined that since the pastor of the respondent church Pastor Ife Adewumi was sued as representing his church and church members; it means that the respondent as a church is automatically made a party to the suit.
Mr. Agboola on this issue (2) submitted that the issue had been determined by the lower court in an interlocutory ruling dated 4/12/08 which had not been challenged by way of appeal and no leave had been sought and obtained to now raise the issue with the substantive appeal. He further submitted that the suit was not an abuse of court process in that the plaintiff in the present suit was not a party to in HIF/34/05.
Mr. Agboola’s contention that leave should have been obtained is with all due respect misconceived. Order 4 rule 5 of the court of Appeal Rules 2011 provides that the powers of the Court in respect of an appeal shall not be restricted by reason of any interlocutory order from which there has been no appeal. See Okobia v. Ajanya (1998) 6 NWLR (Pt. 554) 348. This court is therefore not precluded from considering the issue of abuse of court process notwithstanding that the appellant did not appeal against the ruling of the lower court. It is also not necessary that he should obtain leave as the issue is still very germane to the final decision of the lower court appealed against.
What then is “abuse of court process” in the con of the matters under consideration? In the case of Umeh V. Iwu (2008) 8 NWLR (Pt. 1089) 225, the Supreme Court observed:
“Generally, abuse of process contemplates multiplicity of suits between the same parties in regard to the same subject matter and on the same issues. To institute an action during the pendency of another suit claiming the same relief is an abuse of court process, and the only course open to the court is to put an end to the suit. It does not matter whether the suit is on appeal, the subsequent action would constitute an abuse of process. The attitude of the court is to strike out the suit filed in abuse of process. Abuse of court process therefore simply, in practical sense denotes a situation where a party has instituted a multiplicity of suits against the same opponent in respect of the same subject matter and on the same issues. This manner of using court process which is obviously lacking in bona fide leads to the irritation and annoyance of the other party and thus impedes due administration of justice. Therefore to sustain a charge of abuse of process there must coexist inter alia:
(a) A multiplicity of suits
(b) Between the same opponents
(c) On the same subject matter; and
(d) On the same issues.
All these pre-conditions are mutually inclusive as they are conjunctive… Ogoejeofo v. Ogoeieofo [2006] 3 NWLR (Pt. 966) 205, Okafor v. A.G. Anambra State (1991) 6 NWLR (Pt. 200) 659…”Per Chukwuma-Eneh JSC, @ 243- 244 C-A.
It is important to note that the conditions are mutually inclusive and conjunctive. For the suit to be classified as abuse of court process, all the conditions must co-exist. If one condition is missing, then there is no abuse of court process.
The parties in suit No HIF/34/05 are Abayomi Fabunmi (Executor of the estate of Late Chief Ayo Martins) as Plaintiff (1) Commissioner of Police Osun State (2) Mr. Laolusemi and (3) Pastor Ife Adewunmi (Pastor Four Square Gospel Church, Ile-Ife) as defendants. It is quite obvious here that Pastor Ife Adewunmi was sued in his personal capacity and not as representing Foursquare Gospel Church. If the suit was in a representative capacity, it would have read, “Pastor Ife Adewunmi (for and on behalf of Foursquare Gospel Church Ile-Ife). But the Church being an incorporated body with its own legal personality cannot hide behind an individual. To be a party in a suit the suit must be in the name of the Registered Trustees of Foursquare Gospel Church as in the present suit. The bottom line therefore is that the plaintiff herein “The Registered Trustees Foursquare Gospel Church in Nigeria was not a party in suit HIF/34/05. Mr. Fabunmi knows fully well that the Church was not a party in the suit. The Agreement for sale of the land at page 7 of the record of appeal shows the parties as Chief Ayo Martins (vendor) and The Board of Trustees, Foursquare Gospel Church in Nigeria as Purchaser. What is more, when the sitting tenant took out action to protect the unexpired term of his tenancy, he sued four persons; (1) Chief Ayo Martins (2) The Registered Trustees of Foursquare Gospel Church (3) Mr. Ife Adewunmi (4) Mr. Emmanuel Oriade. See page 12 of the record. Initially, Mr. Fabunmi represented all the defendants. So Mr. Fabunmi cannot claim not to know the procedure if he had wanted to sue the Church, the actual Purchaser of the land. The point therefore is that the church is a distinct legal personality from the pastor and further the reliefs are not quite on all fours. The primary objective in this suit is the interpretation of the documents. The lower court was right in its ruling that this suit is not an abuse of court process here. The issue is resolved against the appellant.
ISSUE (3)
Whether the High Court has jurisdiction to entertain the suit: Appellant’s issue (4)
His contention here is that the court had no jurisdiction to hear the matter in view of the application he brought to arrest the judgment on the eve of the date fixed for judgment and the refusal of the lower court to transfer the case to another court. It is not easy to understand the appellant’s argument here. The appellant had applied every tactic in the books to frustrate the hearing of the case. He defied all efforts by the learned trial Judge to get him to file his counter-affidavit and address. The case was adjourned on many occasions at his instance. The only times Mr. Fabunmi appeared in court was to move one motion or the other aimed at grounding the case. The court did hear the motion he brought to arrest the judgment and to have the case transferred to another court. A ruling was delivered refusing the application, after which the court proceeded to deliver judgment in the case. There is no substance to this issue as the lower court definitely had jurisdiction to hear the case. The issue is resolved against the appellant.
ISSUES (4)
Whether the judgment/decision of the lower court was right in view of the materials placed before it.
The processes filed for the determination of the originating summons consist of the following:
(a) The originating Summons page 1-2 of the record
(b) The affidavit in support page 3-5 of the records
(c) The survey plan of the property page 6 of the records
(d) The agreement of sale
(e) Exhibits to the affidavit in support (including Exhibit P3, a counter-affidavit sworn to by Chief Ayo Martins in which he deposed in paragraph 19 that he had sold the property to the respondent); the will under which the appellant claimed to have become the executor of Late Chief Ayo Martins giving him right to deal with the property.
(f) The Plaintiffs written address in support of the originating summons. All the lower court needed to do was to interpret these documents. There was nothing on the face of the documents in support of the appellant’s contention that the issues were contentious or hostile. Originating summons procedure was therefore quite in order. The only way the appellant could have dislodged the position was by filing a counter-affidavit pointing out the areas of discord but he refused to file his defence in spite of the spirited efforts of the learned trial Judge to get him to do so. Rather the appellant spent the entire period bringing one application after the other with the aim of frustrating the case. Then to add salt to injury, the appellant under his issue no (3) queried whether it was not denial of fair hearing to him for the lower court to decide this suit before suit no HIF/34/05 which was filed earlier. To start with, the appellant was responsible for the grounding of HIF/34/05. The suit was filed in 2005. We are in the last month of 2011; the suit has still not taken off. The appellant went on appeal when the lower court refused to grant him an injunction. This was exactly what he tried to do with this case but for the firm stand taken by the trial Judge. Now how can the appellant be talking about fair hearing when he chose not to be heard. The Supreme Court case of M.M.S. Ltd v. Oteiu (2005) 14 NWLR (Pt. 945) referred to by Mr. Agboola is very apposite:
“A court of law can indulge a party only within the confines of its rules. In otherwords a court of law can indulge a party in so far as its rules permit. Where rules of court in line with the fair hearing principles order a specific conduct on the part of the parties, the court has a duty to enforce the rules.
In such a situation, the defence of fair hearing is not available to the aggrieved party because the rule itself has complied with fair hearing. In the instant case, the trial judge accommodated the respondents in many respects; all in a genuine effort to do justice but the counsel did not take advantage of the fair mind of the trial judge. No party has the right to hold a court of law to ransom and from the totality of the conduct of the respondents; this is what they tried to do.
The trial judge did all that was humanly possible to hear the case of the respondents but they bluffed the court. A party who has the temerity to bluff the court at the trial stage, without justification, cannot be heard on appeal to seek redress on the subject matter of the bluff.” Per Tobi JSC. @ 541 E-H
Elsewhere in the judgment, the Court observed:
“Where a party to a suit has been accorded a reasonable opportunity of being heard and in the manner prescribed under the law and for no satisfactory explanation it fails or neglects to attend the sitting of the court or boycotts same, that party cannot thereafter be heard to complain about lack of fair hearing…In the instant case where the defendants were given ample opportunity to file their defence and participate in the trial but for reasons best known to them they flouted the orders by the trial court to file their defence and in addition boycotted the trial, they cannot be heard to complain about denial of hearing on the ground that their application for enlargement of time to file a defence was not heard. I am satisfied that the defendants were not only tardy in presenting their case but deliberately endeavoured to stifle the proceedings…” Per Edozie JSC @ 543 G-H, 544 B-C
I have reproduced the above extensively as set out in the respondent’s brief because of its relevance to the instant appeal. The appellant in this appeal indeed held the lower court to ransom. From page 62-64 of the record of appeal, the learned trial Judge narrated the antecedents of the case and at page 65 concluded thus:
“I have gone this far to give a catalogue of the history of this case to show how far the patience of the court was tasked by the defendant, Mr. Fabunmi, who chose to conduct the case himself”
Even if Mr. Fabunmi honestly believed he had a good case and that this suit was indeed an abuse of court process, that is no reason why he should be dribbling the court and refuse to file his defence. He should have filed his counter-affidavit and written address with the confidence that if he lost in the lower court; he could always go on appeal. Now he has shot himself in the foot because not having filed his defence, the case remained undefended. There is no foundation on which to canvass the issues he is now canvassing in this appeal. From the documents exhibited by the respondent, it is not in doubt that Chief Ayo Martins transferred his interest in the property in dispute to the respondent for valuable consideration, to the knowledge of the appellant. The fact that there was a sitting tenant at the time the property was sold does not in any way vitiate the terms of the agreement such as to void the sale. In such situations, the purchaser takes subject to the interest of the sitting tenant. That is all. Having disposed of his interest in the property, Chief Martins can no longer dispose of same by will and there is no indication in the will that he did. This is simple logic. Why is the appellant having difficulty understanding these simple rules of equity? It is interesting to note that in his battle to keep the property already disposed of by Chief Ayo Martins, no where did the appellant refer to the consideration of N400,000.00 paid by the respondent and accepted by the vendor. Is it right for Mr. Fabunmi to be fighting to keep the property knowing that the consideration was never returned to the respondent? At any rate there is also the counter-affidavit Exhibit P3 deposed to by Chief Martins confirming that he sold the property to the respondent. Everything concerning the sale of the property to the respondent was concluded before the demise of the vendor and the respondent was in fact put in possession. That was why the sitting tenant went to court to protect the remaining term of his tenancy. I imagine that the appellant is fully aware that no court of law would assist him achieve his objective, hence the use of delay tactics to frustrate the hearing of the cases. I sincerely commend the learned trial Judge for withstanding the onslaught by the appellant. I daresay that there are quite a number of cases all over the country suffering similar faith of never seeing the light of day to the utter consternation and frustration of the litigants. Mr. Fabunmi tried to hang on to whatever straw he could lay his hands on. His submission about the wrong address given in the process is of no moment because the property in dispute is well known to the parties and there is no dispute as to its identity. Besides a survey plan of the property was part of the processes filed before the court and it was not challenged. The appellant also raised issues with the grant of possession to the respondent and the injunction restraining him from dealing with the said property in any manner prejudicial to the interest of the respondent. The respondent had deposed in his affidavit in support of the originating summons that the defendant (appellant) had been trying to forcefully take over the premises sold to the church. The averment was not denied. The respondent consequently instituted the action for a declaratory pronouncement on its entitlement to the possessory right which the appellant was trying to jeopardize by forcible entry using the instrumentality of his claimed position as the executor of the will of Chief Ayo Martins, the vendor of the property.
Having resolved all the issues herein against the appellant, there is totally no merit in this appeal. I accordingly dismiss it with N50, 000.00 costs in favour of the respondent.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the benefit of a preview of the judgment just delivered by my learned brother, C.E. Iyizoba, J.C.A. For the well considered reasons ably advanced therein I agree that that the appeal lacks merit and should be dismissed.
In recent times a relentless spotlight has been beamed on the administration of justice in this country and in particular the slow pace of disposal of matters before our courts. It requires dedication, sincerity and cooperation among all stakeholders to reverse the trend. As Judges, we have a responsibility to dispose of matters before us as expeditiously as possible. Learned counsel who appear before us have a commensurate duty to ensure diligent prosecution of their cases and not to resort to various tactics to stall the hearing or frustrate the other side. This was indeed one of the reasons that gave rise to the front-loading concept in the new civil procedure rules in operation in many states of the federation today. The aim is to ensure that a claimant does not file an action in court merely on a fishing expedition. He must be fully ready to prosecute his claims by placing all his cards on the table from the beginning. In the same vein, the defendant must also front load his defence so that the plaintiff is fully seised of the facts upon which he intends to rely for his defence. This would allow him to throw in the towel at an early stage where he finds that he is unlikely to succeed at trial. What I am trying to say in effect is that a defendant, such as the appellant herein, who had every opportunity to present his side of the case at the trial court and failed to take advantage of it cannot be heard at the appeal stage to complain against the decision reached on the basis of unchallenged evidence. See: Okike V. L.P.D.C. (2005) 15 NWLR (949) 471 @ 537 C – E; Otapo V. Sunmonu (1987) 2 NWLR (58) 597; Olaniyan V. University of Lagos (1985) 2 NWLR (9) 599; M.M.S. Ltd. V. Oteju (2005) 14 NWLR (945) 517 @ 541 E – H; 543 G – H; 544 B-C.
For these and the more detailed reasons given in the lead judgment, I also find no merit in the appeal and dismiss it accordingly; I award costs of N50, 000.00 in favour of the respondent.
MOORE A. A. ADUMEIN, J.C.A.: I had the privilege of reading before now the judgment just delivered by my learned brother – CHINWE EUGENIA IYIZOBA, JCA. His Lordship has painstakingly analysed the issues in this appeal and I agree with the conclusions reached.
I agree that this appeal lacks merit. I too dismiss the appeal with N50, 000. 00 costs in favour of the respondent against the appellant.
Appearances
Mr. ABAYOMI FABUNMIFor Appellant
AND
M.O. AGBOOLA ESQ.For Respondent
