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ACHALLA & ORS v. OKAFOR & ORS (2022)

ACHALLA & ORS v. OKAFOR & ORS

(2022)LCN/15981(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Wednesday, June 01, 2022

CA/K/443/2018

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1. NGOZI ACHALLA 2. EUGENE OKAFOR 3. PATRICK OKAFOR 4. KELVIN OKAFOR 5. OSITA OKAFOR 6. MAUREEN OKAFOR 7. VERONICA OKAFOR 8. NWAMAKA OKAFOR 9. CHIKA OKAFOR APPELANT(S)

And

1. IFEOMA ROSEMARY OKAFOR 2. CHIDERA OKAFOR 3. MARYANN OKAFOR 4. CHUKWUEMEKA OKAFOR 5. CHISIMDI OKAFOR (2nd-5th Respondents Suing By Their Next Of Friend, Ifeoma Rosemary Okafor) 6. PROBATE REGISTRAR, KADUNA STATE RESPONDENT(S)

 

RATIO

PROCEEDINGS PROVIDED FOR UNDER THE MATRIMONIAL CAUSES ACT

Again, it is important to state that Matrimonial Causes cannot apply to the instant case as same involves proceedings provided for under Section 114(1)(a)–(e) of the Matrimonial Causes Act. For the meaning of matrimonial causes, the Act provides as follows:
“Proceedings for a decree of –
(i) dissolution of marriage;
(ii) nullity of marriage;
(iii) judicial separation;
(iv) restitution of conjugal rights; or
(v) jactitation of marriage;
(b) proceedings for a declaration of the validity of the dissolution or annulment of a marriage by decree or otherwise or of a decree of judicial separation, or for a declaration of the continued operation of a decree of judicial separation, or for an order discharging a decree of judicial separation;
(c) proceedings with respect to the maintenance of a party to the proceedings, settlements, damages in respect of adultery, the custody or guardianship of infant children of the marriage or the maintenance, welfare, advancement or education of children of the marriage, being proceedings in relation to concurrent, pending or completed proceedings of a kind referred to in paragraph (a) or (b) of this subsection, including proceedings of such a kind pending at, or completed before, the commencement of this Act;
​(d) any other proceedings (including proceedings with respect to the enforcement of a decree, the service of process or costs) in relation to concurrent, pending or completed proceedings of a kind referred to in paragraphs (a), (b) or (c) of this subsection, including proceedings of such a kind pending at, or completed before, the commencement of this Act; or
(e) proceedings seeking leave to institute proceedings for a decree of dissolution of marriage or of judicial separation, or proceedings in relation to proceedings seeking such leave;”
However, in the instant case, it cannot apply since Late Paul Abuchi who is a necessary party to a matrimonial cause is late and the reliefs sought by the Respondents are only as to entitlement to the Estate of the deceased and nothing more.
PER IDRIS, J.C.A.

THE POSITION OF LAW IN DETERMINING WHETHER OR NOT A PLANTIFF HAS LOCUS STANDI TO INSTITUTE A MATTER BEFORE IT

Moving forward, to have the locus standi to institute an action, the statement of claim must disclose the plaintiff’s sufficient legal interest and show how such interest arose in the subject matter of the action. Therefore, in order to determine whether a plaintiff has locus standi, the Court is required to look at the writ of summons and statement of claim. See generally, the cases of A. G. OF FED VS. A. G. OF ABIA STATE & ORS (2001) 89 LRCN 2413; HIS PRE-EMINENCE RAJI VS. REV. BAMGBOSE (1985) 4 NWLR (PT. 73) 632 and A. G. OF BENDEL STATE VS. A. G. OF FED. (1981) 9 S. C. 1. The Court shall then consider whether there is a justiciable issue before the Court. See also the cases of LADEJOBI VS. OGUNTAYO (2001) FWLR (PT. 45) 780; THOMAS VS. OLUFOSOYE (1988) 2 SC 325 and ELENDU VS. EKWOABA (SUPRA) (PP. 30–31, PARAS A–A) per Sankey, JCA.
In the case of B. B. APUGO & SONS LTD VS. O.H.M.B. (2016) 13 NWLR (PT. 1529) 206 AT 269–270 PARAS G–A, the Court held that a plaintiff has locus standi if he can show that there is a nexus between his action and the defendant’s conduct. Therefore, a person has locus standi to sue if he is able to show to the satisfaction of the Court that his civil rights and obligations have been or are in danger of being infringed by another person. The law is trite that before a person can institute an action in Court, he must ensure that there is a dispute between the parties, and the dispute is justiciable. See the case of JUKOK INT’L LTD VS. DIAMOND BANK PLC (2016) 6 NWLR (PT. 1507) 55 AT 94 PARA A.
PER IDRIS, J.C.A.

CIRCUMSTANCES WHICH GIVES RISE TO AN ABUSE OF COURT PROCESS

The common feature of the concept of abuse of Court process is simply “the improper use of judicial process by a litigant to interfere with the administration of justice.” Therefore, the circumstances which would give rise to an abuse of Court process include any of the following:
i. Instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues, or a multiplicity of action on the same subject matter between the same parties even there exists a right to begin the action.
ii. Instituting different actions between the same parties simultaneously in different Courts even though on different grounds.
iii. Where two similar processes are used in respect of the exercise of the same right. For example, a cross-appeal and a respondent notice.
iv. Where an application for adjournment is sought by a party in an action to bring an application to Court for leave to raise issues of facts already decided by the lower Court.
v. Where there is no law supporting a Court process or where it is predicated on frivolity or recklessness.
vi. Where there are appeals on the same judgment and against the same parties and also on the same subject matter.
vii. Where a party goes forum-shopping, hoping to achieve a conceived right.
viii. Where an action is between the same parties and their allies on the same subject matter, even if differently worded but with the same result, the later suit filed is an abuse of Court process. See PDP VS. SHERIFF (SUPRA) 219 AT 265–266 PARAS G–B.
ix. Where two actions are commenced, the second asking for a relief which may have been obtained in the first, the second action is prima facie vexatious and an abuse of Court process. SEE: LOKPOBIRI V. OGOLA (2016) 3 NWLR (PT. 1499) 328 AT 367-368 PARAS E-B
x. It constitutes an abuse of Court process where there are multiple actions on the same subject matter between the same parties and in different Courts, and the suits may not have to be filed by the same party in the actions. For instance, an action subsequently instituted by an opposing party as defendant in an earlier action on the same subject matter between same parties will definitely constitute an abuse of Court process. The reason being that the defendant could have, conveniently and appropriately, in the exercise of his right of action against the plaintiff, instituted in the same action, a counter-claim, and validly sought his reliefs against his adversary, otherwise the Court will take the subsequent action to be meant to annoy, irritate and harass the opponent and it will constitute an abuse of Court process.
The law is trite that abuse of Court process does not lie in the exercise of the right per se but in the multiplicity and manner of the exercise of the right. The abuse consists the intention, purpose and aim of the person exercising the right to harass, irritate, intimidate and annoy the opponent and interfere with the administration of justice. This position is not prejudice to the fact that it is not the law that once a party files another suit before another Court on the same subject matter, there is an abuse of Court process. This is because an act can give rise to different suits. A subject matter may very well give rise to different rights. In other words, different suits can emanate from the same subject matter but with different rights and reliefs. See N.D.I.C. VS. U. B. N. PLC (2015) 12 NWLR (PT. 1473) 246. PER IDRIS, J.C.A.

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By a writ of summons dated the 9th day of April, 2018, the 1st–5th Respondents herein, as Plaintiffs at the trial Court claimed jointly and severally against the Appellants herein and 6th Respondent as Defendants as follows:
1. Declaration that the 1st Plaintiff is the lawful married wife and the 2nd to 5th Plaintiff are the legitimate children of late Paul Abuchi Okafor (Deceased). Plaintiffs are entitled to the Estate of late Paul Abuchi Okafor (Deceased).
2. A Declaration that the first Plaintiff being the lawful wedded wife of the deceased is entitled to be granted the letter of administration to the estate of the deceased for herself and her next of friend.
3. An Order Restraining the Defendants or their agents from tempering, meddling, taking possession of or disposing of the properties of late Paul Abuchi Okafor.

It is the claim of the 1st Respondent at the trial Court that she is the lawfully wedded wife of Late Paul Abuchi Okafor (Deceased) and the mother of the 2nd to the 5th Respondents who are the legitimate children of Late Paul Abuchi Okafor (Deceased) and that the 1st Appellant is the secretary and mistress of Late Paul Abuchi Okafor (Deceased) and the 2nd to 9th Appellants are the siblings of the deceased.

​It is also the claim of the 1st Respondent that she got married to the deceased in the year 1996 under the native law and custom of Igbukwu and under the Act and that her marriage with the deceased produced 4 (four) children ages 16, 14, 12 and 6 respectively, and acquired properties together with the deceased which she is entitled to be issued with the letter of administration to the exclusion of all the Defendants in the suit. She also claims that there is an underground plan by the Appellants to sell, dispose and share late Paul Abuchi Okafor’s properties and money with the intention to disinherit the Respondents of their late husband and father’s possession and properties.

The Appellants at the trial Court also filed a Statement of Defence and a Notice of Preliminary Objection challenging the competence of the suit and the jurisdiction of the Court to grant the reliefs sought therein.

​On the 24th day of May, 2018 the Appellants’ Counsel moved the Notice of Preliminary Objection in the matter and urged the Court to grant the application. The Respondents’ Counsel on the other hand argued against the application and urged the Court to dismiss same.

Upon a consideration of the arguments of Counsel to the parties, the Court gave its ruling on the same 24th day of May, 2018 dismissing the said Notice of Preliminary Objection.

Dissatisfied with the said ruling delivered on the 24th day of May, 2018 by the learned trial Judge, Honourable Justice H. A. L. Balogun in Suit No: KDH/KAD/334/2018, the Appellants filed their Notice of Appeal. Consequently, parties to the appeal filed their respective briefs of argument.

The Appellants’ Brief of Argument was filed on the 6th day of December, 2018 and settled by their Counsel Iroagalachi Anthony Auditz, Esq raising 5 (five) issues for determination as follows:
1. Whether the Court was right to have simply held that the Respondents’ suit was a probate matter and based on that alone sustained jurisdiction over the suit without considering all the issues raised by the Appellants regarding the legitimacy, proceedings and appropriateness of a writ of summons as a mode of commencing the action instead of a petition or an application as provided by the Rules of Court. (Distilled from Ground One of the Notice of Appeal)
2. Whether the reliefs sought by the Respondents in their suit are probate. (Distilled from Ground Two of the Notice of Appeal)
3. Whether the Respondents have locus standi to sue the Appellants and seek the reliefs sought in the suit against them. (Distilled from Ground three of the Notice of Appeal)
4. Whether the Respondents’ Suit No. KDH/KAD/334/2018 is not an abuse of Court Process in view of the Pendency of Suit No. KDH/KAD/469/2013 and non-compliance with the relevant laws/Rules of Court on the subjects. (Distilled from Ground Two of the Notice of Appeal)
5. Whether the conditions precedent were met by the Respondents before the commencement of Suit KDH/KAD/334/2018. (Distilled from Ground Three of the Notice of Appeal)

​On issue one the learned Appellants’ Counsel submitted that it was wrong for the Respondents to have employed an ordinary writ of summons as in Order 3 Rule 1 of the Kaduna State High Court Civil Procedure Rules in commencing the action seeking the declaration of the legitimacy of the 2nd–5th Respondents and that the trial Court was also wrong when it simply ruled on probate only without considering this issue and that the effect of deploying the wrong mode, as in this case, is fatal and renders the suit invalid as it deprives the Court of its jurisdiction. Counsel cited Order 5 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules, 2007 and the cases of LAGOS STATE JUDICIAL SERVICES COMMISSION & ANOR VS. MUUSBAU OLUBANKOLE KAFFO (2007) LPELR–8594; DONGTOE VS. CIVIL SERVICE COMMISSION PLATEAU STATE (2001) 9 NWLR (PT. 717) 132 and SEA TRUCKS NIG. LIMITED VS. ANIGBORO (2001) SC PART 1 PAGE 45.

On issue two, the Appellants’ Counsel argued that the trial Court was wrong when it held that the Respondents’ suit was a probate matter based on Section 33 of the High Court Law simplicita, without relating its finding to how it came under Section 55 of the High Court Rules.

​On issue three, the Appellants’ Counsel submitted that it is not the case of the 1st Respondent that the said Executrix, Mrs. Esther Chika Okonkwo, has taken steps prejudicial to the interests of the beneficiaries to the said will as to give rise to a cause of action on the will and the Respondents’ suit is not contesting the validity of the said will either. The Appellants’ Counsel further argued that in the presence of a will, the 1st Respondent cannot be heard asking that she be issued a letter of administration as she ought to apply for the said will to be read first or challenge the validity of same and that her action on this issue is premature and lacking in locus standi.

On issue four, the Appellants’ Counsel argued that the Respondents did not put any material before the lower Court to counter any of the facts and laws stated by the Appellants about the lack of jurisdiction of the Court over their case and thus urged the Court to agree with the Appellants and overrule the lower Court. Counsel then cited the case of N. A. B. KOTOYE VS. MRS F. M. SARAKI & ANOR (1991) 8 NWLR (PT. 211) PAGE 638 AT 646–647 PARAGRAPH H ON PAGE 646 TO PARAGRAPH A ON PAGE 647.

​On issue five, the Appellants’ Counsel argued that the case of the Respondents in Suit No. KDH/KAD/334/2018 is that the 1st Respondent is the lawful married wife and the 2nd–5th Respondents, the legitimate children of late Paul Abuchi Okafor which issues were the subjects of a marriage petition in Suit No. KDH/KAD/469/2013 and that the Respondent ought to have obtained a favourable judgment from the said suit before asking for the declaration that she is the lawful married wife of the deceased in Suit No. KDH/KAD/334/2018 which the Appellants brought to the notice of the Court and of which the Court gave its ruling but that the ruling is contrary to the record of the Court.

In conclusion, the Appellants’ Counsel urged the Court to set aside the ruling of the Court dismissing the Appellants’ preliminary objection over the jurisdiction of the Court and strike out the suit for lack of jurisdiction.

On the other hand, the 1st–5th Respondents filed a Respondent Brief of Argument on the 30th day of January, 2019 which was settled by their counsel Chinyere Josephine Nnaji, Esq. wherein they adopted the issues for determination raised by the Appellants. The Respondents argued issues one and two together while arguing issues three, four and five separately.

On issues one and two, the learned Respondents’ Counsel argued that the writ of summons and the statement of claim purely shows that the suit is a probate suit and that it is clear that probate proceedings do not qualify under Section 114 of the Matrimonial Causes Act. Counsel cited the case of ATTORNEY GENERAL OF THE FEDERATION VS. ATTORNEY GENERAL OF LAGOS STATE (2017) 8 NWLR (PT. 1566) PAGE 20 AT PAGE 57 PARAGRAPH F.

The learned counsel for the Respondents also submitted that Suit No. KDH/KAD/469/2013 which the Appellant raised was prematurely terminated and died with the death of the Late Paul Abuchi Okafor, and thus, cannot be a basis for asking the lower Court to strike out the suit because there was no judgment in that case capable of determining the Respondent in this suit. The Respondents’ Counsel further argued that the ruling of the trial Court did not offend Sections 33 and 34 of the High Court Laws of Kaduna State. Counsel submitted further that what Order 55 Rule 1(1) of the Kaduna State High Court (Civil Procedure) Rules, 2007 requires is that if any person wants to be granted letters of administration of the deceased, that person must bring an application to the Probate Registrar of the High Court.

The Respondents’ Counsel also submitted that the 1st Respondent’s claim for a declaration is one for which the 1st Respondent is entitled and thus what the Respondents are seeking in paragraph 9(2) of their statement of claim is for the Court to declare that the 1st Respondent has a right to be granted letters of administration and that this claim precedes Order 55 of the Kaduna State (Civil Procedure) Rules and that the Respondents are not yet applying for the grant of letter but they are rather seeking for the Court’s declaration that they have a right to apply for the grant and it is after the grant of the declaration order, that the Respondents will apply for the letters of administration and then the provision of Order 55 Rule 1(1) will apply.

On issue three, the learned Respondents’ Counsel argued that all the ingredients and test of locus standi are present in the suit. Counsel cited the case of GAMIOBA & ORS VS. ESEZI II & 11 ORS (1961) 1 ANLR PAGE 584 AT 588. The Respondents’ Counsel further submitted that the 1st Respondent is the mother of the other Respondents and that the Respondents also averred that the 1st Respondent and the Late Paul Abuchi Okafor labored to acquire the properties listed in the suit and that the Appellants were trying to sell and dispose of the properties and money acquired by the deceased and the 1st Respondent, share same to the exclusion of the Respondents and thus a claim to stop the Appellants from selling, disposing and sharing the properties belonging to the deceased and his immediate family to the exclusion of the Respondents as stated in paragraph 8, raised a justiciable issue and also, a dispute between the Appellants and the Respondents. Counsel further submitted that the Respondents have shown sufficient interest in the properties and money listed.

​On issue four, the Respondents’ Counsel argued that by virtue of paragraphs 1, 3, 4, 5, 6, 7 and 9 of the Plaintiffs’ statement of claim, this suit falls under probate proceeding as provided for in Section 33 of the High Court Law, Laws of Kaduna State 1991 Cap 67 and also submitted that Section 34 will apply where the nature of the marriage was contracted under native law and custom alone, which is not the same in this case.

The Respondents’ Counsel further argued that what is required under Order 55 Rule 1(1) of the Kaduna State High Court (Civil Procedure) Rules is an application for the grant of letters of administration of the estate of the deceased person and if there is no dispute as to the person entitled to his estate and where there is a dispute as in this case, Rule 1(1) of Order 55 shall not apply because it only deals with the procedure for the application for grant of letters of administration and does not deal with resolution as to who is entitled to apply for the grant.

Finally, the Respondents’ Counsel submitted on issue four that Section 33 of the Kaduna State High Court Laws is the substantive law which has given jurisdiction to the lower Court to determine the suit.

On issue five, the Respondents’ counsel submitted that paragraphs 4.5.1–4.5.14 of the Appellants’ arguments on issue five are totally misconstrued because in arguing issue five, the Appellants relied on their statement of defence and witness deposition. That the Appellants failed to appreciate that at the stage of preliminary objection, what the Court looks at are simply the papers filed by the Plaintiffs. On this point, counsel cited the case of A. D. OGUNMOLA VS. MARI MOHAMMED KIDA (2002) FWLR (PT. 86) PAGE 559 AT 568 PARAGRAPH H.

The Respondents’ Counsel also argued that Suit No. KDH/KAD/469/2013 was a divorce petition between late Paul Abuchi Okafor and the 1st Respondent which was not concluded before his death and that both the parties and the cause of action in that case are different from that in the matter leading up to this appeal.

In conclusion, the Respondents’ Counsel urged this Court to dismiss this appeal.

RESOLUTION OF THE ISSUES
Having summarized the arguments of the parties herein, I shall now proceed to determine the issues in this appeal and in doing so I shall adopt the issues for determination raised by the Appellants in their Brief of Argument. The said issues are again reproduced hereunder as follows:
1. Whether the Court was right to have simply held that the Respondents’ suit was a probate matter and based on that alone sustained jurisdiction over the suit without considering all the issues raised by the Appellants regarding the legitimacy, proceedings and appropriateness of a writ of summons as a mode of commencing the action instead of a petition or an application as provided by the Rules of Court.
2. Whether the reliefs sought by the Respondents in their suit are probate.
3. Whether the Respondents have locus standi to sue the Appellants and seek the reliefs sought in the suit against them.
4. Whether the Respondents’ Suit No. KDH/KAD/334/2018 is not an abuse of Court process in view of the Presidency of Suit No. KDH/KAD/469/2013 and non-compliance with the relevant laws/Rules of Court on the subjects.
5. Whether the conditions precedent were met by the Respondents before the commencement of Suit KDH/KAD/334/2018.

ISSUE ONE
Whether the Court was right to have simply held that the Respondents’ suit was a probate matter and based on that alone sustained jurisdiction over the suit without considering all the issues raised by the Appellants regarding the legitimacy proceedings and appropriateness of a writ of summons as a mode of commencing the action instead of a petition or an application as provided by the Rules of Court.
It is trite law that the issue of jurisdiction is a threshold matter and a Court in determining whether it has jurisdiction to entertain the Respondents’ suit as in this case, is required to look into the claims or reliefs sought by the Plaintiff. See the cases of BAMISELE VS. OSANYI (2018) ALL FWLR (PT. 423) 130 and WEST AFRICAN EXAMINATION COUNCIL VS. AKINKUNMI (2008) ALL FWLR (PT. 427) 28.

The reliefs sought by the Respondents in their statement of claim are reproduced hereunder as follows:
1. Declaration that the 1st Plaintiff is the lawful married wife and the 2nd to 5th Plaintiff are the legitimate children of late Paul Abuchi Okafor (Deceased). Plaintiffs are entitled to the Estate of late Paul Abuchi Okafor (Deceased).
2. A Declaration that the first Plaintiff being the lawful wedded wife of the deceased is entitled to be granted the letter of administration to the estate of the deceased for herself and her next of friend.
3. An Order restraining the Defendants or their agents from tempering, meddling, taking possession of or disposing of the properties of late Paul Abuchi Okafor.

It is clear from the above reliefs that the claim of the Respondents is against the Estate of the Late Paul Abuchi Okafor. The first relief is a claim of entitlement to the Estate of the deceased, the second relief is based on the fact that if they are entitled, then the first Respondent should be declared so entitled and given the letter of administration to the Estate of the deceased and the third relief to my mind, is against any contrary claims on the said Estate of the deceased.

It is at this point that I will not hesitate to agree with the learned trial Judge that the matter relates to the Estate of the deceased and is therefore a probate matter and not marriage. The issue of legitimacy of the 2nd–5th Respondents is a matter for consideration during the substantive suit upon materials placed before the Court. All that the Court was required to do at the stage of hearing the Notice of Preliminary Objection was to determine whether it has jurisdiction to proceed with the substantive case and nothing more.

​Again, it is important to state that Matrimonial Causes cannot apply to the instant case as same involves proceedings provided for under Section 114(1)(a)–(e) of the Matrimonial Causes Act. For the meaning of matrimonial causes, the Act provides as follows:
“Proceedings for a decree of –
(i) dissolution of marriage;
(ii) nullity of marriage;
(iii) judicial separation;
(iv) restitution of conjugal rights; or
(v) jactitation of marriage;
(b) proceedings for a declaration of the validity of the dissolution or annulment of a marriage by decree or otherwise or of a decree of judicial separation, or for a declaration of the continued operation of a decree of judicial separation, or for an order discharging a decree of judicial separation;
(c) proceedings with respect to the maintenance of a party to the proceedings, settlements, damages in respect of adultery, the custody or guardianship of infant children of the marriage or the maintenance, welfare, advancement or education of children of the marriage, being proceedings in relation to concurrent, pending or completed proceedings of a kind referred to in paragraph (a) or (b) of this subsection, including proceedings of such a kind pending at, or completed before, the commencement of this Act;
​(d) any other proceedings (including proceedings with respect to the enforcement of a decree, the service of process or costs) in relation to concurrent, pending or completed proceedings of a kind referred to in paragraphs (a), (b) or (c) of this subsection, including proceedings of such a kind pending at, or completed before, the commencement of this Act; or
(e) proceedings seeking leave to institute proceedings for a decree of dissolution of marriage or of judicial separation, or proceedings in relation to proceedings seeking such leave;”
However, in the instant case, it cannot apply since Late Paul Abuchi who is a necessary party to a matrimonial cause is late and the reliefs sought by the Respondents are only as to entitlement to the Estate of the deceased and nothing more. Thus, Order 3 Rule 1 of the High Court of Kaduna State (Civil Procedure) Rules, 2007 is applicable in this situation and a writ of summons is the appropriate form for instituting the action subject matter of this appeal, and I so hold.
​In this regard therefore, the learned trial Court was right to have simply held that the Respondents’ suit was a probate matter and based on that, sustained jurisdiction over the suit without considering all the issues raised by the Appellants regarding the legitimacy proceedings as same was one clearly to be determined in the substantive suit which would precede the grant or refusal of the reliefs sought by the Respondents in the suit.

This issue is thus therefore resolved in favour of the Respondents against the Appellants.

ISSUE TWO
Whether the reliefs sought by the Respondents in their suit are probate.
The Appellants’ Counsel has cited Section 33 of the High Court Law of Kaduna State and has submitted that from the provisions of the said Section, the jurisdiction of the High Court is not automatic but must be exercised in conjunction with Section 34 of the same law. The said Section 33 provides:
“the jurisdiction of the High Court in probate cases and proceedings may subject to the provisions of the law and especially Section 34 and to the rules of Court be exercised by the Court in conformity with laws in force at the time in force in England.”
​Firstly, looking at the said Section 33, it is subject to Section 34 where it applies. Section 34 applies when the marriage was contracted under customary law alone. However, in this case, the 1st Respondent has stated in paragraph 4 of the statement of claim that the marriage between the deceased and herself was done both under native law and custom and under the Act. It is thus clear that only Section 33 will apply in this regard as it is not subject to Section 34 as it relates to this case. It is on this ground that I base my view on this first point, to say that the trial Court did right to rely on only Section 33 as Section 34 does not apply in this scenario.

Secondly, the Appellants’ Counsel has also argued, citing Order 55 1(1), 3, 4, 8 and 11 that the trial Court was overly wrong when it held that the Respondents’ suit was a probate matter based on Section 33 of the High Court Law alone and that such probate matter must conjunctively comply with Section 34 as well as the Rules of Court.
Reading Order 55 of the Kaduna State (Civil Procedure) Rules, it is clear that the provision is all encompassing as referring to both the grant of probate and application by those entitled to the grant of probate. In this case, the Respondents were not applying for a grant of probate but asking as per their reliefs sought, that they are entitled to the Estate of the deceased to be granted the letters of administration and maintaining the Estate of the deceased. These are all part of the probate proceedings, and I so hold. Therefore, the reliefs sought by the Respondents in their suit are probate.

This issue is thus resolved against the Appellants in favour of the Respondents.

ISSUE THREE
Whether the Respondents have locus standi to sue the Appellants and seek the reliefs sought in the suit against them.
I have looked at the argument of the learned counsel for the Appellants as contained in paragraphs 4.3.1–4.3.7 of the Appellants’ brief, the findings of this Court as contained under issue one hereof has catered for these arguments and thus it will not be necessary to over flog same here and from all the arguments of the Appellants’ Counsel, I will not agree less with the Respondents’ Counsel that the Appellants’ Counsel delved into the merit of the substantive suit.

​Moving forward, to have the locus standi to institute an action, the statement of claim must disclose the plaintiff’s sufficient legal interest and show how such interest arose in the subject matter of the action. Therefore, in order to determine whether a plaintiff has locus standi, the Court is required to look at the writ of summons and statement of claim. See generally, the cases of A. G. OF FED VS. A. G. OF ABIA STATE & ORS (2001) 89 LRCN 2413; HIS PRE-EMINENCE RAJI VS. REV. BAMGBOSE (1985) 4 NWLR (PT. 73) 632 and A. G. OF BENDEL STATE VS. A. G. OF FED. (1981) 9 S. C. 1. The Court shall then consider whether there is a justiciable issue before the Court. See also the cases of LADEJOBI VS. OGUNTAYO (2001) FWLR (PT. 45) 780; THOMAS VS. OLUFOSOYE (1988) 2 SC 325 and ELENDU VS. EKWOABA (SUPRA) (PP. 30–31, PARAS A–A) per Sankey, JCA.
In the case of B. B. APUGO & SONS LTD VS. O.H.M.B. (2016) 13 NWLR (PT. 1529) 206 AT 269–270 PARAS G–A, the Court held that a plaintiff has locus standi if he can show that there is a nexus between his action and the defendant’s conduct. Therefore, a person has locus standi to sue if he is able to show to the satisfaction of the Court that his civil rights and obligations have been or are in danger of being infringed by another person. The law is trite that before a person can institute an action in Court, he must ensure that there is a dispute between the parties, and the dispute is justiciable. See the case of JUKOK INT’L LTD VS. DIAMOND BANK PLC (2016) 6 NWLR (PT. 1507) 55 AT 94 PARA A.

Looking at the writ of summons and statement of claim, and as I already mentioned under issue one, the first relief is claim of entitlement to the Estate of the deceased, the second relief is based on the fact that if they are entitled, then the first Respondent should be declared so entitled and given the letter of administration to the Estate of the deceased and the third relief to my mind, is against any contrary claims on the said Estate of the deceased.

The Respondents, in stating how they have become so entitled to the properties of the deceased had made statements as clearly contained in the statement of claim particularly at paragraphs 1–8 thus indicative of the fact that there is a dispute between the Respondents and the Appellants in dealing with the properties of the deceased and which can only be determined during the substantive suit. However, upon looking at the statement of claim, it is clear to me that there is a dispute between the Respondents and Appellants for which the Respondents called upon the trial Court to resolve and it is also justiciable as before the trial Court as the Court is a competent one to hear the matter and also the mode in which the matter was brought before the Court being a competent one as well, just as I have already considered under issue one.

The question of whether a plaintiff has locus standi to bring an action in the first place does not depend on the success or the merit of the case, but on whether the plaintiff has sufficient interest or legal right in the subject matter of the dispute to entitle him to institute the action. It is on this note that I agree with the trial Court’s decision when it held that:
“On locus standi, the Plaintiffs are claiming to be heirs of the deceased. At this stage, the Court cannot make any holding on whether they are or not. Suffice to say that in the originating process they so claim. In the circumstance, I hold that they have shown that they have locus.”

From my findings therefore, it is the opinion of this Court that the Respondents have the locus standi to sue the Appellants and seek the reliefs sought in the suit against them.

This issue is thus therefore resolved against the Appellants in favour of the Respondents, and I so hold.

ISSUE FOUR
Whether the Respondents Suit No. KDH/KAD/334/2018 is not an abuse of Court process in view of the pendency of Suit No. KDH/KAD/469/2013 and non-compliance with the relevant laws/Rules of Court on the subjects.
The learned counsel for the Appellants has argued that the Respondents’ suit is an abuse of Court process and an aberration same having been initiated without any iota of laws or Rules of Court supporting it and thus, the trial Court was wrong to have assumed jurisdiction over same.

​It is trite that this Court is empowered to look at its record and in doing so, I have clearly seen from the Record of Interlocutory Appeal and as contained in the written address in opposition to the Appellants’ preliminary objection particularly at page 4, that the Respondents actually relied on Section 33 of the High Court Laws of Kaduna State in arguing that it is within the jurisdiction of the trial Court to entertain the matter and thus, the argument of the Appellants’ Counsel as contained in paragraphs 4.4.1–4.4.4 of the Appellants’ Brief of Argument is totally misconceived and just as the Respondents’ Counsel has argued, the proceedings falls under one which the trial Court can handle by virtue of the said Section 33 which in this case is not subject to Section 34 of the same law as by paragraph 4 of the statement of claim of the Respondents, the 1st Respondent averred that she got married to the Late Paul Abuchi Okafor in the year 1996 under the native law and custom of Igbukwu and under the Act. It is thus at this point, that I will say that the Respondents’ Suit No. KDH/KAD/334/2018 is not an abuse of Court process as they complied with the relevant laws/Rules of Court on the subjects as I already dealt with under issue two.

This issue is hereby resolved in favour of the Respondents against the Appellants.

ISSUE FIVE
Whether the conditions precedent were met by the Respondents before the commencement of Suit No. KDH/KAD/334/2018.
Even as this Court cannot be persuaded to delve into the substantive suit, it is clear that the argument of the Appellants’ Counsel on this issue is that the case of the Respondents in the suit leading to this appeal is that the 1st Respondent is the lawful married wife of the Late Paul Abuchi Okafor and the 2nd–5th Respondents are the legitimate children of the said Late Paul Abuchi Okafor, and the issues were the subjects of a marriage petition in Suit No. KDH/KAD/469/2013 wherein it was fully heard and judgment reserved. The Appellants’ Counsel has also argued that apart from pleading that Suit No: KDH/KAD/469/2013 is still pending, they also frontloaded the marriage dissolution petition itself thus the ruling of the Court that the Appellants did not show the Court any case that is pending between the present parties in any other Court on the same issue and subject matter is contrary to the record.

Looking at pages 110–123 of the Record of Appeal, it is clear to me that there was a case of petition for dissolution of marriage between the Late Paul Abuchi Okafor and the 1st Respondent and no other party. To my mind, since the matter was not determined before the death of the deceased, the matter ceases to exist as same cannot be maintained by the 1st Respondent against any other party other than the deceased. Even the said Cross-Petition cited No. 1 against the 1st Appellant seeking an order declaring the said party an adulterer cannot be maintained without the deceased. However, the stand of this Court still remains that the action leading up to this appeal is different from the one being referred to which can only be maintained by petition under the Matrimonial Causes Act and whether the 1st Respondent is an executrix is not one for this Court to determine but the duty of the trial Court during the hearing of the merit of the substantive suit. Thus, the argument of the Appellants’ Counsel under 4.5.14 of the Appellants’ Brief of Argument does not hold water as the Respondents’ claim at the trial Court, especially reliefs 1 and 2 are for declaration as being entitled to the Estate of Late Paul Abuchi Okafor and to be granted the letter of administration to the Estate of the deceased.

The common feature of the concept of abuse of Court process is simply “the improper use of judicial process by a litigant to interfere with the administration of justice.” Therefore, the circumstances which would give rise to an abuse of Court process include any of the following:
i. Instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues, or a multiplicity of action on the same subject matter between the same parties even there exists a right to begin the action.
ii. Instituting different actions between the same parties simultaneously in different Courts even though on different grounds.
iii. Where two similar processes are used in respect of the exercise of the same right. For example, a cross-appeal and a respondent notice.
iv. Where an application for adjournment is sought by a party in an action to bring an application to Court for leave to raise issues of facts already decided by the lower Court.
v. Where there is no law supporting a Court process or where it is predicated on frivolity or recklessness.
vi. Where there are appeals on the same judgment and against the same parties and also on the same subject matter.
vii. Where a party goes forum-shopping, hoping to achieve a conceived right.
viii. Where an action is between the same parties and their allies on the same subject matter, even if differently worded but with the same result, the later suit filed is an abuse of Court process. See PDP VS. SHERIFF (SUPRA) 219 AT 265–266 PARAS G–B.
ix. Where two actions are commenced, the second asking for a relief which may have been obtained in the first, the second action is prima facie vexatious and an abuse of Court process. SEE: LOKPOBIRI V. OGOLA (2016) 3 NWLR (PT. 1499) 328 AT 367-368 PARAS E-B
x. It constitutes an abuse of Court process where there are multiple actions on the same subject matter between the same parties and in different Courts, and the suits may not have to be filed by the same party in the actions. For instance, an action subsequently instituted by an opposing party as defendant in an earlier action on the same subject matter between same parties will definitely constitute an abuse of Court process. The reason being that the defendant could have, conveniently and appropriately, in the exercise of his right of action against the plaintiff, instituted in the same action, a counter-claim, and validly sought his reliefs against his adversary, otherwise the Court will take the subsequent action to be meant to annoy, irritate and harass the opponent and it will constitute an abuse of Court process.
The law is trite that abuse of Court process does not lie in the exercise of the right per se but in the multiplicity and manner of the exercise of the right. The abuse consists the intention, purpose and aim of the person exercising the right to harass, irritate, intimidate and annoy the opponent and interfere with the administration of justice. This position is not prejudice to the fact that it is not the law that once a party files another suit before another Court on the same subject matter, there is an abuse of Court process. This is because an act can give rise to different suits. A subject matter may very well give rise to different rights. In other words, different suits can emanate from the same subject matter but with different rights and reliefs. See N.D.I.C. VS. U. B. N. PLC (2015) 12 NWLR (PT. 1473) 246.
​From the above authorities, and considering the instant case, it is clear that there is no abuse of Court process by the Respondents. The materials which is before this Court as per the record of appeal is not indicative of that fact, thus it is at this point that I will have to agree with the trial Court when it held that:
“whether the suit is an abuse of Court’s process, the applicant has not shown the Court any case that is pending between the present parties in any other Court or the same issues and subject matter.
The applicant has faulted to show how this suit constitutes an abuse of Court’s process and what conditions to the matter that is to be met by law that has not been met.”

In conclusion, there is no condition precedent that is required to be met before the commencement of the suit leading to this appeal which the Respondents failed to comply with as argued by the Appellants.

This issue is therefore thus resolved against the Appellants in favour of the Respondents.

​In the final analysis, and in consideration of all my findings on this issue, it is my unshaken opinion that the trial Court rightly held that the preliminary objection lacked merit and dismissed same.

In the circumstances, I find no merit in this appeal and it is therefore hereby dismissed. The decision of the trial Court made on the 24th day of May, 2018 in Suit No: KDH/KAD/334/2018 is hereby upheld.
I make no further order as to cost.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft, the judgment delivered by my learned brother Mohammed Baba Idris, JCA.

I agree with the reasoning and conclusion reached in the judgment. I also agree that the appeal lacks merit and ought to be dismissed. I abide by the consequential order and the order as to costs.

ABUBAKAR MAHMUD TALBA, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, MOHAMMED BABA IDRIS, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

Appearances:

A. A. Iroagalachi, Esq. For Appellant(s)

C. J. Nnaji, Esq. For Respondent(s)