ABU v. OSENI (2021)

ABU v. OSENI

(2021)LCN/15172(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Wednesday, May 05, 2021

CA/B/120/2016

Before Our Lordships:

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

ABDULKAREEM ABU APPELANT(S)

And

ZIKA OSENI (For And On Behalf Of The Children Of Late Mrs. Umu Zika Of Aviele-Ughiole Community) RESPONDENT(S)

RATIO

THE CONCEPT OF ABUSE OF JUDICIAL PROCESS

In the case of Saraki v Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188 — 189 quoted in Ogoejeofo v Ogoejeofo (2006) 135 LRCN 786, 798 – 799, it was held that;
“The concept of abuse of judicial process is unprecise. It involves circumstances and situations of infinite varieties and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. It is recognized that the abuse of the process may lie in both proper or improper use of the judicial process in litigations. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issues of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See Okorodudu v Okoromadu (1977) 3 SC 21;Oyegbola v Esso West African Inc(1966) 1 All NLR 170. Thus, the multiplicity of actions on the same matter between the same parties even when there exists the right to bring the action regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right rather than the exercise of the right per se. The abuse consists in the intention, purpose and aim of the person to harass, irritate and annoy the adversary and interfere with the administration of justice, such as instituting different actions between the same parties simultaneously in different Courts, even though on different grounds. See Harriman v Harriman (1989) 5 NWLR (Pt. 119) 6. PER EKANEM, J.C.A.

CONDITIONS TO BE PRESENT FOR THERE TO BE AN ABUSE OF JUDICIAL PROCESS

Therefore, for there to be an abuse of judicial process on account of multiplicity of actions, there must be;
(i) Multiplicity of suits
(ii) Between the same opponents,
(iii) On the same subject matter, and
(iv) On the same issues.
See Conoil v Vitol S. A (2018) 9 NWLR (Pt 1625) 463, 497 and Ajaokuta Steel Co. Ltd v Greenbay Investment and Security Ltd (2019) 8 NWLR (Pt 1674) 213, 233. PER EKANEM, J.C.A.

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Edo State High Court of Justice, Auchi Judicial Division (the lower Court) delivered on 15th December, 2015 in suit NO. HAU/35/2013 by A. N. Ehigiamusoe, J. In the ruling, the lower Court dismissed the application of the Appellant for an Order striking out the suit for being an abuse of Court process.

The facts of the case relevant to this appeal are that the respondent (as claimant) took out a writ of summons endorsed with a statement of claim against the appellant (as defendant) seeking the following reliefs;
“(a) A DECLARATION that the Claimant is the owner in possession of all that piece or parcel of land known and called late MRS. UMU ZIKA’s family land and therefore entitled to the grant of a statutory right of occupancy over the said land measuring approximately 700ft by 1,500ft which is lying, situate and being on the left side at the Old Aviele — Auchi Road, when going from Aviele to Auchi which said land side by Maliki Momodu’s family land, at the top by Akoba river which is the boundary between Aviele

– Ughiole and Ubiane community and at the base by the Benin/Okene Road.
(b) AN ORDER OF PERPETUAL INJUNCTION restraining the Defendant by himself, Servants, Agents and/or privies from further trespassing unto the said MRS UMU ZIKA family land.
(c) N3,000,000. 00 (Three Million Naira) general damages for trespass unto the Claimant’s farmland.”

The Appellant (qua defendant) filed a statement of defence denying the claim of the Respondent. The Respondent in turn filed a reply to the statement of defence. The Appellant thereafter filed a motion on notice on 25th February, 2014 praying the Court to strike out the suit for:
(i) Want of jurisdiction; and
(ii) That the suit is an abuse of Court process.

The motion was supported by a 13 – paragraph affidavit deposed to by the Appellant, attached to which are three exhibits (Exhibits M, M1 and M2) and a written address. The Respondent filed a counter — affidavit of 13- paragraphs deposed to by him, opposing the application. A written address accompanied the counter – affidavit. The Appellant filed a further affidavit of twelve paragraphs to which he attached Exhibits M3 and

M4.
The lower Court, as earlier stated, dismissed the application for lacking in merit.

The Appellant appealed against the decision by filing a notice of appeal incorporating three grounds of appeal on 29th December, 2015.

At the hearing of the appeal on 17th February, 2021, A. Addeh, Esq. for the Appellant adopted and relied on Appellant’s brief of argument filed on 11th May, 2016 in urging the Court to allow the appeal and set aside the judgment of the lower Court.

A.O. F. Odigiri, Esq for the Respondent adopted and relied on Respondent’s brief of argument filed on 1st June, 2018 but deemed duly filed and served on 2nd June, 2020 in urging the Court to dismiss the appeal.

The following issues have been formulated in the Appellant’s brief of argument for the determination of the appeal;
“1. Whether the learned trial Judge was right to have held that this suit is not an abuse of Court processes thereby assuming jurisdiction to try the matter when the subject matter of this suit is also subject matter of Appeal No. CA/B/106/2010 pending before the Court of Appeal between the same parties or their representatives?

Whether the learned trial judge was not in breach of Section 294 (1) of the Constitution of Federal Republic of Nigeria 1999 when he delivered ruling on 15/12/2015 in a motion filed on 25/2/2014 and argued on 13/3/2014 and thereby occasioned a miscarriage of justice.”Respondent’s Counsel in his brief of argument has adopted the two issues above. I shall therefore adopt the two issues for the determination of the appeal but in a more concise form;
“1. Was the lower Court right in holding that the suit of the Respondent is not an abuse of Court process?”

Appellant’s Counsel contended that the lower Court erred in holding that the parties in the suit leading to this appeal and the parties in Appeal No, CA/B/106/2010 are not the same. He argued that in a representative suit, the named parties are not the only parties to the action, the others whom they represent are also parties to the action and shall be bound by the eventual decision of the Court. He contended that the lower Court ought to have determined from the facts before him whether or not the parties in this matter are from Aviele – Ughiole and Ubiane communities, respectively and

that if the answer is in the affirmative, he ought to have concluded that the parties are the same. He referred to the statement of claim in the suit leading to this appeal and the notice of appeal.

Counsel thereafter posited that the land in dispute in the case leading to this appeal forms part of the larger parcel of land which is the subject of litigation in Suit No. OEACCA/41T/2002 – Chief Abibu Kadiru V Chief Mutairu Buhari. He referred to the affidavit in support of the motion, the statement of defence and the reply. He submitted that if the lower Court had examined Exhibit M1 (the claim) it would have found that the course of Akoba stream or River Akoba is a reference point in both suits. He stated that the lower Court failed to consider Exhibit M1, the evidence of one Alhaji Oseni Umoru Enato in Suit No. OEACCA/41T/2002. He also referred to the evidence of the Respondent as PW2 in charge of NO. MCA/18C/2006.
He urged the Court to hold that there is abuse of process.

Respondent’s Counsel submitted that for there to be an abuse of Court process, there must be three factors as set out in Umeh v lwu (2008) 8 NWLR (Pt. 1089) 125. He

contended that the parties, the subject matter and the issues in the two suits are not the same. He referred to the reasoning of the lower Court at pages 237 — 240 of the record of appeal and posited that it is impeccable.

Resolution
In the case of Saraki v Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188 — 189 quoted in Ogoejeofo v Ogoejeofo (2006) 135 LRCN 786, 798 – 799, it was held that;
“The concept of abuse of judicial process is unprecise. It involves circumstances and situations of infinite varieties and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. It is recognized that the abuse of the process may lie in both proper or improper use of the judicial process in litigations. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issues of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the

same opponent on the same issues. See Okorodudu v Okoromadu (1977) 3 SC 21;Oyegbola v Esso West African Inc(1966) 1 All NLR 170. Thus, the multiplicity of actions on the same matter between the same parties even when there exists the right to bring the action regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right rather than the exercise of the right per se. The abuse consists in the intention, purpose and aim of the person to harass, irritate and annoy the adversary and interfere with the administration of justice, such as instituting different actions between the same parties simultaneously in different Courts, even though on different grounds. See Harriman v Harriman (1989) 5 NWLR (Pt. 119) 6. Similarly, so held was where two similar processes were used in respect of exercise of the same right. Namely a cross- appeal, and a respondent’s Notice. See Anyaduba v N.R.T Co. Ltd (1990) 1 NWLR (Pt. 127) 397, Jadesimi v Okotie — Eboh (1986) 1 NWLR (Pt. 16) 278. This Court has also held as an abuse of the process, an application for adjournment by party to an action to bring an application to Court for leave to raise

issues of facts already decided by Courts below – See Alade v Alemuloke (1988) 1 NWLR (Pt. 69) 207.”

There is no doubt that in this instance, there is a multiplicity of suits, namely: suit No. OEACCA/41T/2002 which is now the subject of appeal No. CA/B/106/2010 before this Court and Suit No. HAU/35/2013 which is the subject of the present appeal. I have read the processes in the record of appeal and it is my view that the subject matter (s) of the suits are not the same. The lower Court held the same view and I see no reason to disturb its position. The subject matter of Suit No OEACCA/41T/2002 is described as;
“…land situate, lying and being at Aviele – Ughiole which is bounded in the North by Adobi and immediately

after mile 70 in the Old Road and Kilometer 71 in the New Road (Auchi — Benin Express Way) in the South by Usuanina stream in the East by the course of Akoba stream down to between Edaemalakha and Okpoghede ponds and in the West by Ukolufio Stream…”
See the claim at the Etsako West Area Customary Court — Exhibit M1 at page 149 of the record of appeal.

In the statement of claim in Suit No. HAU/35/2013 leading to this appeal at pages 3 – 6 of the Record, the land in dispute is described to be situate at;
“…Oraokpa farmland on the left hand side and right hand side at Benin/Okone Road, when going from Avile — Ughiole to Benin which said land is measuring approximately 700ft by 1,500ft and bounded on the right hand side by Mr. Habib Nasiru’s family land, on the left hand side by Mr. Malixi Jimoh’s family land, at the top by Akoba river which is the boundary Aviele – Ughiole and Ubaine Community and at the base by Benin/Okone Road, when moving from Aviele — Ughiole to Benin…”

I fail to see how the two parcels of land are the same given the above descriptions. Contrary to the argument

of Appellant’s Counsel; the mere fact that Akoba River is a common denominator in the two parcels of land does not mean that the two parcels of land are one and the same.
A “River” has been defined as;
“A natural flow of water that continues in a long line across the land to the sea/ocean”
– Oxford Advanced Learner’s Dictionary 7th edition, Page 1265.

If the Appellant’s Counsel’s position is correct, it will imply that every parcel of land through or by which the said Akoba river flows must be part of the land in dispute in Suit No OEACCA/41T/2002, even if the land is located in a different local government area. How absurd.

I will not be drawn by the Appellant’s Counsel to consider the evidence of the Respondent as PW2 in Charge No. MCA/18C/2006. This is because criminal proceedings are irrelevant in civil proceedings. Furthermore, evidence in previous proceedings can only be used to cross examine the witness in a subsequent case only for the purpose of testing his credibility except the provision of Section 39 of the Evidence Act, 2011 (as amended) comes into play, which is not the case in this instance.

The subject matter of the two suits are not the same, the parties are also not the same. The parties in Suit No. OEACCA/41T/2002 sued and were sued as representatives of their communities while in the present matter, the Respondent sued on behalf of the children of the late Mrs. Umu Zika and the Appellant is sued in his individual capacity. The issues are not the same in the two suits.
I have no hesitation in entering an affirmative answer to issue 1.

Issue 2 — Did the lower Court give judgment in breach of Section 294 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and if so, did it occasion a miscarriage of Justice?
I have read the arguments of the Counsel on both sides. It is my view that this issue as argued by the Appellant’s Counsel has no foundation to stand. This is because it is his argument that the motion that led to the ruling of the lower Court was argued on 13th March, 2014 while the ruling was delivered on 15th December, 2015 contrary to Section 294 (1) of the Constitution of Nigeria, 1999 (as amended) which prescribed that every Court established under the Constitution shall deliver its decision

in writing not later than ninety days after the conclusion of evidence and find address. As rightly pointed out by Respondent’s Counsel, there is nothing on record to show when arguments on the motion were conducted or concluded so as to help this Court calculate the length of time that expired between the conclusion of argument and the ruling.
I therefore resolve issue 2 against the Appellant.

On the whole, I reach the conclusion that the appeal has no iota of merit. It fails and I accordingly dismiss same. I affirm the ruling of the lower Court.
I assess the costs of this appeal at N500, 000. 00 against the Appellant and in favour of the Respondent.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the benefit of reading in draft the leading judgment; the reasoning and conclusions therein just delivered by my learned brother JOSEPH EYO EKANEM, JCA and I agree with him.
I fully adopt the eloquent elaborate reasons so well set out in the lead judgment as mine and I have nothing more to add.
I abide by all consequential order(s) in the lead judgment.

BALKISU BELLO ALIYU, J.C.A.: I was privileged to read before today the draft of the judgment prepared by my learned brother, Joseph Eyo Ekanem, JCA that has just been delivered. I am in total agreement with the reasoning and conclusion reached therein and I adopt same as mine in finding no iota of merit in this appeal. I too dismiss it. I abide by the order of cost made in the lead judgment.

Appearances:

Addeh, Esq. For Appellant(s)

A.O.F Odigiri, Esq. For Respondent(s)