ALHAJI OSENI OLANIYI TAILOR & ORS. v. ALHAJI SHITU BALOGUN & ORS.
(2012)LCN/5667(CA)
In The Court of Appeal of Nigeria
On Thursday, the 22nd day of November, 2012
CA/IL/1/2012
RATIO
ABUSE OF COURT PROCESS: WHAT CONSTITUTES ABUSE OF COURT PROCESS
“Authorities are replete on what constitutes abuse of the judicial process or abuse of court process. In the case of SARAKI V. KOTOYE (1992) 11-12 SCNJ it was held that: “The abuse consists in the intention, purpose and aim of the person exercising the right of issue (of judicial process) to harass, irritate and annoy the adversary, and interfere with administration of justice, such as instituting different actions between the same parties simultaneously in different courts even though on different grounds?” See also the case of DINGOLI vs. BARA’U (2012) ALL FWLR (pt.609) 1156 at 1175, where this Court held as follows: “Abuse of process of the court is a term generally applied to a proceeding which is wanting in bona fide and is frivolous, vexations or oppressive. It can also mean abuse of legal procedures or improper use of judicial process. (Amaefulu v. State (1988) 2 NWLR (Pt.75) 156; Adefulu v. Secretary, Ikene Local Government (2002) 42 WRN 68; African Reinsurance Corporation v. J.D.P. Construction (Nig.) Ltd. (2003) FWLR (Pt.176) 667; (2003) 2 – 3 SC 47 referred to (p.1173), paras F – G.” Per MBABA J.C.A
NOTICE OF DISCONTINUANCE: WHETHER A PLAINTIFF WITHOUT LEAVE OF COURT
“In the case of EKUDANO vs. KEREGBE (2008) 4 NWLR (pt.1077) 422, ratio 2, the Supreme Court said: : “A plaintiff may, without leave of court, discontinue a suit against all or any of the defendants or withdraw any part of his claim before the date fixed for hearing. In such a situation, the notice of withdrawal automatically terminates the proceedings and a formal order striking-out, the suit may be made by the Court” (SOETAN v. TOTAL (NIG). LTD. (1972) 1 ALL NLR (Pt.1); IZIEME VS. NDOKWU (1976) NMLR 280; AGHADIUMO VS. ONUBOGA (1998) 5 NWLR (Pt.548) 16 referred to) In that case of EKUDANO vs. KEREGBE (supra) at 430-431 the Supreme Court went on to state the principle underlying requirement of leave to discontinue action and when leave is required thus: “That after proceedings have reached certain stage, the plaintiff should not be allowed to escape by the side door and avoid the contest… Where the request for discontinuance of action is made after the date fixed for the hearing of the suit, the plaintiff may discontinue only with the leave of court and subject to conditions imposed by the Court?” In the case of IKINE VS. EDJERODE (2002) FWLR (Pt.92) 1775 AT 1812, where the notice of withdrawal was even filed after the plaintiff had filed a new suit, which was not served on the defendant until the notice of the withdrawal was served on him, the Supreme Court, per Ogundare JSC, held: “On the facts of the present case I think the court below decided rightly, when it held that there was no abuse of judicial process by the plaintiff.” Per MBABA J.C.A.
NOTICE OF DISCONTINUANCE: WHETHER ONCE FILED BRINGS THE MATTER TO AN END
“In the case of EMEGHARA vs. HEALTH MANAGEMENT BOARD, IMO STATE (1957) 2 NWLR (PT.56) 330 at 339-344 this Court held that a Notice of discontinuance is not a motion to be formally argued and that once it is filed, the whole suit is deemed to have come to an end.” Per MBABA J.C.A.
JUSTICES
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
OBANDE O. F. OGBUINYA Justice of The Court of Appeal of Nigeria
Between
1. ALHAJI OSENI OLANIYI TAILOR
(for himself and on behalf of Take/Keke family, Offa)
2. ALHAJI KARIMU OLAGUNJU ADE
(Chairman, Land Committee)
3. ALHAJI WAHAB OLOLADE
4. ALFA MOMONU SANNI
5. MR. FATAI FOLARANMI BALOGUN
6. ALHAJI LAYIWOLA KAYOGBOLA BALOGUN
7. ALHAJI LASISI JIMOH OLOKO Appellant(s)
AND
1. ALHAJI SHITU BALOGUN
(For Himself and on behalf of Magaji lineage of Balogun Family, Offa)
2. ALHAJI SHUAIBU BALOGUN
3. HIS ROYAL HIGHNESS OBA MUFUTAU
(GBADAMOSI ESUWOYE II, OLOFA.OF OFFA) Respondent(s)
ITA G. MBABA J.C.A.: (Delivering the Leading Judgment): This is an appeal against an interlocutory decision of the High court of Kwara State, Offa Judicial Division, in Suit No. KWS/OF/18/2010, delivered on 31/5/2011 whereof the learned trial judge, S. M. Akanbi J. dismissed the preliminary objection by the defendants (Appellants herein) and held that the Suit did not constitute an abuse of court process (page 530 of the Record).
The events that led to the Suit and to the application which culminated in the Ruling appealed against, paint a pathetic story of venue shopping to commence Court action, made worse by aggressive, moves to stall the suit.
The 1st and 2nd Respondents, as plaintiffs in the High Court had filed a writ of summons on 2/7/2010, seeking some reliefs relating to chieftaincy matter. Before taking out the writ in the High Court, the 1st Respondent had instituted an action at Upper Area Court, Ilorin, in 2008 (Suit No: UACII/CVF/58M/2008) against the Appellants (especially 1st Appellant), and an order of injunction was made on 15/9/2008 against 1st Appellant restraining him. The 1st Respondent also filed another Suit (UACII/CVF/60M/2008) in the same Upper Area Court on 22/9/2008 against 1st Appellant and 3 others over the same subject matter. The Appellants (as defendants in the Upper Area Court) raised objection to the trial of the Suit by Ilorin Upper Area Court, upon which the suit was transferred to Upper Area Court, Offa, in Suit No.UACF/CVFI/2009. Appellants (particularly 1st Appellant) again filed an application challenging the jurisdiction of the Upper Area Court, Offa, on the basis that the claims bothered on chieftaincy matter which they said was outside the competence of Upper Area Court. While the challenge to the jurisdiction of the Upper Area Court was still pending, the 1st Respondent (as plaintiff in the Upper Area Court) applied through his Counsel, on 19//2010, to the Director of Area Court, seeking transfer of the Suit to the High Court. Appellants again wrote a letter of objection to the Respondents’ letter, ground that there was a pending application challenging the jurisdiction Upper Area Court, which ought to be taken first and disposed of.
The Respondents then filed “NOTICE TO DISCONTINUE SUIT” in the Upper Area Court on 2/7/2010. Appellants again, filed an objection to the Notice to discontinue the Suit, on the ground that the pending challenge to the jurisdiction of the Upper Area Court ought to be taken first.
The Respondents then filed,their writ of summons in the High court on same 2/7/10, seeking the same reliefs sought in the Upper Area Court. Appellants further raised a preliminary objection to the writ of summons at the High Court. The objection, filed on 5/1/2011, challenged the jurisdiction of the High Court to entertain the Suit. (KWS/OF/18/2011) on the grounds that it was an abuse of the court process, in view of suit No.UACF/CVFI/2009.
The Ruling of the learned trial judge thereto brought about this appeal. He held that the Notice to discontinue the Suit had automatically terminated the case at the Upper Area Court. “‘Therefore I hold that this suit does not constitute an abuse of court process” (Pages 530 and 531 of the Records).
Appellants obtained the leave of the trial Court on 14/6/2011 to file this interlocutory appeal, and they filed Notice and grounds of Appeal on that date (14/6/2011) raising 3 grounds of Appeal, as shown on pages 549 to 553 of the Records. Appellants filed their Brief of arguments on 18/4/2012 and the same was deemed duly filed on 30/5/12. They distilled two (2) issues for determination. namely:
(1) Whether the learned trial judge was right in holding that “NOTICE TO DISCOUNTINUE SUIT” filed by the 1st Respondent automatically brings an end to the case before the Uppe Area Court, Offa (Ground 1)
(2) Whether, considering the suit pending before the Upper Area Court, Offa the learned trial judge was right in holding that the 1st and 2nd Respondents present suit before him does not constitute an abuse of the Court process.” (Ground 2 and 3).
The 1st and 2nd Respondent filed their Respondents’ Brief on 31/5/2012 and also distilled 2 issues for determination:
(1) Whether the learned trial Judge was right in his conclusion that the suit before him as constituted is not an abuse of Court process liable to be dismissed in limine. (Grounds 1 and 2).
(2) Whether the learned trial judge misapplied the principles of law in the cases of JADESINMI . OKOOTIE EBOH and AKILU v. FAWEHINMI to the facts and circumstances of this case while dismissing the Appellants’ objection.” (Ground 3).
The 3rd Respondent filed no Brief and so did not contest the appeal. The appeal was heard on 31/10/2012 when the counsel adopted their briefs and urged us accordingly.
Arguing Issue 1, Learned counsel for the appellants, Tunde Falola Esq. (who settled the Brief) submitted that the trial judge was wrong in coming into conclusion that the NOTICE TO DISCOUNTINUE SUIT, filed by the Respondents completely avoided an irritation or multiplicity of the case of the Respondents as abuse of Court process. He submitted that as at the time the said Notice To Discontinue the Suit was filed at the Upper Area Court, there was a pending application filed on 28/7/2009, challenging the jurisdiction of the said Court to entertain chieftaincy matter; that the said motion had not been heard and determined by the time the Notice to discontinue the Suit was filed; that apart from the motion challenging the jurisdiction of the Upper Area Court, the Notice to Discontinue the Suit cannot be said to have terminated the said Suit, unless and until the issue of jurisdiction raised vice the Exhibit C (Motion challenging jurisdiction) had been heard and determined.
Counsel further said that the issue of the jurisdiction, once raised supercedes any other step which the court, as well as the parties, may subsequently take; that the issue of jurisdiction goes to the root of the case. He relief on the case of Western Steel Works Ltd vs. Iron & Steel Workers Union (1956) (sic) (pt.30) 617, where Oputa JSC said:
“But because it is regarded as threshold issue and a life line for continuing any proceeding, objection to jurisdiction ought to be taken at the earliest opportunity for the Court to consider it decision reached on it before any other step in the proceeding is taken”
Counsel submitted that the phrase “before any other step in the proceedings is taken” includes the attempt by the Respondent to discontinue the suit before the Upper Area Court Offa: that the Upper Area Court will have to determine first whether or not if has jurisdiction to determine the 1st Respondent’s suit, and if at the end of the day the court discovers or rules that it has no jurisdiction to entertain the master, then there would be nothing to discontinue. He further submitted that, where the Court lacks jurisdiction to hear a matter the same would be struck out or dismissed; that the trial Court was wrong to have regarded the NOTICE TO DISCONTINUE SUIT as a determination of the case before the Upper Area Court Counsel’ further argued that assuming (without conceding) that the effect of the NOTICE TO DISCONTINUE SUIT was to bring an end to the suit before the Upper Area Court, that the Appellants had timeously raised an objection to the said NOTICE TO DISCONTINUE SUIT, as the Appellants’ motion which had been argued and was awaiting a ruling at the time the new suit was filed in the High Court; that if the trial Court had considered the submission of the Appellant to that effect, it would have held differently; that the court had a duty to consider all evidence placed before it, no matter how silly. He relied on the case of Adelenwa vs. The State (1992) 7 NSCC 591 at 594.
He added that discontinuance of the suit could not be automatic termination of that matter, because of the pending motion, and that the plaintiff needed the leave of court to discontinue the suit. He relied on the case of OLAYINKA ROADIQUES AND ORS. VS. THE PUBLIC TRUSTEE & ORS. (1977) 4 SC. 29.
On Issue 2, Appellants’ Counsel submitted that the trial Court was wrong in coming to conclusion, that the suit did not constitute abuse of the process, as that cannot be supported by avalanche of documentary evidence presented to it by the Appellants, namely, the pending similar suit at the Upper Area Courts on the same subject matter as the case before the trial Court. He referred to suit No.UACII/CVF/58M/2008, from which injunction was made on 15/9/2008 at the Upper Area court, Ilorin, and suit No:UACII/CUF/60M/2008 at Upper Area Court Ilorin suit No. VACF/CVF1/09 (which he said was a transfer of the suit (No.UACII/CVF/60M/2008) from the Upper Area Court, Ilorin, to upper Area, Offa). Counsel also referred to the letters on the application to transfer the case from the Upper Area Court, Offa to the High Court and the Notice to discontinue the suit, and the motions challenging jurisdiction, and asserted that going by the pendency of those processes, the case at High Court was an abuse of the process; that the Respondents should have waited for the outcome of the ruling on the objection to discontinue the suit at the upper Area Court, Offa, before filing the suit in the High Court; that considering Exhibit D, which sought to transfer the said suit No: UACF/CVF1/09, the Respondents’ Notice to discontinue the suit constituted abuse of the process of court, ex-facie; that abuse arises, where a party improperly uses the judicial process to the irritation and annoyance of his opponent; that the abuse of court process manifests itself largely, in the multiplicity of actions on the same subject matter as was done in this case.
He relied on the case of Ogoejofo vs. Ogoejafo (1977) 3 SC 21 at 32; NNPC vs Obi (2009) All FWLR (Pt.456) counsel also cited the case of Emeghara vs. Health Management Board Imo State (1987) 2 NWLR (pt.56) 330 at 339 – 340, where this court held that a notice of discontinuance, once filed, the whole suit came to an end, but added that the present suit is quite different and unique from that of Emeghara vs. HMBIS (supra), because of the pending challenge to the jurisdiction of the Upper Area court at that court.
Counsel further submitted that it is a misconception of law to argue that Notice of discontinuance of suit operates automatically, to terminate the suit, and relied on the case of Olawore vs. Olanrewaju (1998) 1 NWLR (Pt.534) 436 where Mukhtar JCA said:
“It seems the learned counsel for the plaintiff was under the misconception that the Notice of ‘Discontinuance should automatically operate to strike out the suit”
Counsel submitted that, where a notice of discontinuance was filed, as in this case, to enable the plaintiff to repair his case, the Court is entitled to dismiss the case. He relied on (Ikudano & Anor vs. Keregbe & Ors. (2003) FWLR (pt.148) 1384 at 1398-9
He urged us to resolve the issues in favour of the Appellants and allow the appeal.
The Respondents’ counsel, Adewale Olatunde Esq. (who settled the Brief of the 1st and 2nd Respondents), on their Issue I, submitted that the lower court was right in holding that the suit was not an abuse of the process of Court. He relied on the Black’s law Dictionary 9th Edition for the definition of “abuse of Court process” to mean!
“Improper and tortuous use of a legitimate issued court process to obtain a result that is either unlawful or beyond the process is scope”.
Counsel also relied on the case of: Saraki vs. Kotoye (1992) 11-12 SCNJ (pt.1) 26 at 48, where the apex Court held:
“The abuse consists in the intention purpose and aim of the person exercising the right to harass, irritate annoy the adversary…”
He also relief on Ikine vs. Edjerode (2002) FWLR (Pt.92) 1775 at 1812; CBN v. Ahmed (2001) FWLR (Pt.56) 670; ANPP v. Haruna (2005) All FWLR (Pt.242) 549 at 570 and said that the common feature, permeating abuse of Court process, is the improver uses of the judicial process by party in litigation to interfere with the due administration of justice.
Counsel submitted that the Respondent had filed Exhibit F (Notice of discontinuance of the Suit which was attached to Appellants motion at the lower Court) which content stated that “the discontinuance is with immediate effect.”
He submitted further that the substantive suit leading to the case on appeal was filed on 2/7/2010; that Exhibit F was immediately served on the Appellants; that it was after the Appellant; had been served with the Notice of discontinuance of the suit at the Upper Area Court, that the 1st Appellant’s Counsel filed the motion – the preliminary objection in the High Court on 9/8/2010 to challenge the discontinuance of the suit; that was an act of approbating and reprobating, as the same Counsel had earlier filed an objection challenging the jurisdiction of the Upper Area Court to hear the Respondents’ Suit. Counsel further said that the same Appellant had earlier written to oppose the application to transfer the case to the High Court which they always maintained, had jurisdiction to hear the case; That Appellants were, infact, the persons, who used the process of court to irritate, harass and annoy the Respondents, and that this appeal is part of that process of abuse of the Court process by the Appellants.
Counsel relied on the case of IKINE Vs. EDJERODE (SUPRA) at 1812, to say that the Respondents’ process (the new suit) at the High Court was not abuse of the process, as the suit in the Upper Area Court was deemed to have been withdrawn on 2/7/2010 when the Notice of withdrawal was filed. He also relied on the case of EMEGHARA VS. HEALTH MANAGEMENT BOARD IMO STATE (SUPRA) at 339-340, where this Court held that a Notice of discontinuance is not a motion to be formally, argued, and that once it is filed, the whole suit is deemed to have come to an end, as the plaintiff, who filed same cannot, subsequently, revive it; that the court, before which the notice of discontinuance is filed has no – power to refuse the withdrawal, as it is the notice that terminates the case and not the act of the Court.
Counsel further submitted that the act of filing an objection to the withdrawal of a suit is a futile act, and relied on the case of EMEGHARA VS. HEALTH MANAGEMENT BLARD OF IMO STATE (supra) at 340, per Aseme JCA, who said:
“Consequently, the motion to dismiss the action was filed on 13th June 1983, after the motion to withdraw the suit had been filed, was utterly misconceived; in that the motion to dismiss was based on a suit which “no longer existed. It was a procedural act in nullity.”
Thus, Counsel submitted that both the objection to withdraw the suit before the Upper Area Court and the motion filed at the High Court to dismiss the suit at the High Court, based on the erroneous belief that the suit in the Upper Area Court was still subsisting after the notice of discontinuance, were all procedural acts in nullity; that the authorities are replete that, Where no date has been fixed for as he is only required to give written Notice to the Court and to parties. He relied on the case of ODJE & ORS v. OVIEN & ORS (1992) 7 NWLR (pt.253) 309 at 323; and EKUKANO vs. KEREGBE (2008) ALL FWLR (Pt.405) 1641 AT 1646 – where Akintan JSC held that notice of discontinuance automatically terminates the suit. See also OGUNKUNLE Vs: C & S.. CHURCH & ORS (2001) 6 NSCQR (PT.) 789 AT 797; MESSRS NU SCHEEPS V. THE NUSARZA (200) 12 SC. (Pt.1) 164) 204-205 THE YOUNG SHALL GROW MOTORS LTD V. OKONKWO (2010) All FWLR (Pt.528) 803.
Counsel submitted that the Appellants did not proof that the case at the Upper Area Court had been fixed for hearing and added that the above authorities had impliedly overruled the decision of this Court in OLAWORE VS. OLANREWAJU (1998) 1 NWLR (PT.534) 436, which the Appellants heavily relied on.
He urged us to hold that the learned trial Judge was right in his conclusion, that the Notice to Discontinue the suit had automatically ended the case at the Upper Area Court.
On their Issue 2, learned counsel for the Respondents submitted that the learned trial judge neither misdirected himself nor misapplied the principles of law enunciated in the cases of JADESINMI VS. OKOTIE EBOH (SUPRA) and AKILU VS. FAWEHINMI (SUPRA); that in AKILU v. FAWEHINMI, the summary of the principle of law as that it is an abuse of court process for a plaintiff, after filing an action against the defendant, and during the pendency of that action, proceeds to file another action against the same defendant on the same subject matter; that the defendant can invoke the inherent jurisdiction of the court to stay such proceedings, being vexation, frivolous and harassing.
And in the case of JADESINMI vs. OKOTIE EBOH, the court held that when an action is frivolous, it constitutes an abuse of the process; that those 2 authorities, and the case of OKORODUDU V. OKOROMADU (1977) 2 SC. 21 at 32-33, also cited by the trial court, expounded the principles of law on what constitutes an abuse of court process, and what the court should do in such a circumstance. He submitted that the trial court, after all the considerations, correctly held, in the absence of the elements constituting abuse of court process, that the suit of the Respondents in the High Court did not constitute an abuse of the court process, since Notice of Discontinuance filed on 2/7/2010 had effectively ended the suit at the upper Area court. Counsel also urged us to note that the parties at the upper Area Court were not the same as parties at the in the High Court.
He asserted, again, that upon the filing of the Notice of discontinuance on 2/7/2010 and its service of same on the 1st Appellant (before the writ of summons in the case on appeal was served on the Appellants), the lower Court was right in holding that, having regards to the authorities on abuse of court process (which include Okorodudu vs. Okoromadu, Jadesinmi vs. Okotie Eboh and Akilu vs, Fawehinmi), the Respondents’ suit at the High Court did not constitute abuse of the process.
Counsel further submitted that, upon the filing of the Notice of Discontinuance of the Respondents suit at the Upper Area Court, the Appellants’ preliminary objection to the’ jurisdiction of the Upper Area Court, became an academic exercise, which did not require the consideration of the Court any longer, as there court is enjoined to deal only with live issues. He relied on the case of SHETTIMA vs. G0NI (2012) ALL FWLR (Pt.609) 1007 at 1046 & 1066: CPC vs. INEC (2012) ALL FWLR (Pt.617) 605 at 651-652.
Again, Counsel for the Respondent submitted that the case of OLAWORE VS, OLANKEWAJU (SUPRA)’ is inapplicable, because, in that case, the suit had been fixed for hearing several times. Also he said that the decision of the Court of Appeal in UKUDANO vs. KEREGBE (2003) FWLR (Pt.148) 1384 was corrected by the Supreme Court (on appeal) in the same case reported in (2008) All FWLR (Pt 405) 1641 at 1646, when the apex Court restated the right of a plaintiff to discontinue a suit, not set down for hearing.
Counsel urged us to hold for the Respondents and dismiss the appeal.
RESOLUTION OF ISSUES
I think the two issues distilled by the Appellants are similar to the two also distilled by the Respondents (though they tended to swap positions). But ultimately, the two issues on both sides appear to argue the same point, that is, whether the learned trial judge was right in holding that the Notice of Discontinuance, filed by the Respondents in the Upper Area Court on 2/7/2010, had terminated their case in that court, and so the suit on appeal was not an abuse of the Court process?
I shall, therefore, consider the two issues together (as one) as modified, by me, thus:
Was the trial court right in holding that the NOTICE TO DISCONTINUE SUIT, filed by the in Respondent at the Upper Area Court on 2/7/2010 had ended the suit at the Upper Area Court and so the suit of the 1st and 2nd Respondents at the High Court, also filed on 2/7/2010, did not constitute abuse of the process?
To resolve this issue, the position of the law, particularly, judicial authorities on effective way of terminating a suit in Court by filing notice of discontinuance have to be examined, vis a vis the Respondents’ Notice to discontinue the suit, filed on 2/7/2010 and the decision of the trial Court, and also considering what constitutes abuse of the Courts process, or abuse of the judicial process, in the con of filing multiple suits against the same defendant on the same subject matter.
Learned Counsel on both sides were generous in supplying decided authorities on the termination of suits by means of Notice of discontinuance and on what constitutes abuse of court process, and I commend them.
Of course, authorities abound to the effect that a suit, that is yet to be fixed for hearing, can be withdrawn,readily, even without the leave of Court, by filing a Notice of discontinuance of the same in the Court where the suit is pending, and the Notice to discontinue the suit, automatically, brings the suit to an end, from the moment it is filed. The logic for this appears simple: the plaintiff who filed a suit, cannot be compelled to pursue the suit, if he elects to withdraw the same, prior to the fixture of same for hearing and prior to commencement of hearing which would have compromised the rights/interest of the opponent.
In the case of EMEGHARA vs. HEALTH MANAGEMENT BOARD, IMO STATE (1957) 2 NWLR (PT.56) 330 at 339-344 this Court held that a Notice of discontinuance is not a motion to be formally argued and that once it is filed, the whole suit is deemed to have come to an end.
In that case (above cited), even where the Respondent had filed a motion for the dismissal of the suit after being served with the Notice to discontinue the suit, the appellate Court said that application “was utterly misconceived in that the motion to dismiss was based on a suit which no longer existed, (and that) it was a procedural act in nullity” (per Aseme JCA as he then was).
In the case of EKUDANO vs. KEREGBE (2008) 4 NWLR (pt.1077) 422, ratio 2, the Supreme Court said: :
“A plaintiff may, without leave of court, discontinue a suit against all or any of the defendants or withdraw any part of his claim before the date fixed for hearing. In such a situation, the notice of withdrawal automatically terminates the proceedings and a formal order striking-out, the suit may be made by the Court” (SOETAN v. TOTAL (NIG). LTD. (1972) 1 ALL NLR (Pt.1); IZIEME VS. NDOKWU (1976) NMLR 280; AGHADIUMO VS. ONUBOGA (1998) 5 NWLR (Pt.548) 16 referred to)
In that case of EKUDANO vs. KEREGBE (supra) at 430-431 the Supreme Court went on to state the principle underlying requirement of leave to discontinue action and when leave is required thus:
“That after proceedings have reached certain stage, the plaintiff should not be allowed to escape by the side door and avoid the contest… Where the request for discontinuance of action is made after the date fixed for the hearing of the suit, the plaintiff may discontinue only with the leave of court and subject to conditions imposed by the Court…”
In the case of IKINE VS. EDJERODE (2002) FWLR (Pt.92) 1775 AT 1812, where the notice of withdrawal was even filed after the plaintiff had filed a new suit, which was not served on the defendant until the notice of the withdrawal was served on him, the Supreme Court, per Ogundare JSC, held:
“On the facts of the present case I think the court below decided rightly, when it held that there was no abuse of judicial process by the plaintiff. It is on record that the plaintiff filed their present action on 25/1/88 and filed the notice of discontinuance of their previous action (UHL/34/87) on 19/2/88. The defendant was not served with the writ of summons in the second action until 16/2/88. I cannot see there has been an abuse of judicial process or harassment of the defendants as contended by them.”
In the instant case, it is clear that the Notice to discontinue the suit at the Upper Area Court was filed by the Respondents on 2/7/2010 and served on the Appellants, before the suit, which is the subject matter of this appeal, following the Appellants’ persistent fight against the suit at the Upper Area Court, on the ground that the Respondents’ claim, being a chieftaincy matter, was outside the jurisdiction of the Upper Area Court. See Appellants’ Notice of preliminary objection (Exhibit C) on page 431 of the Record of Appeal.
Of course, it can be seen that the Appellants were those who educated and helped the Respondents to take the correct step, to find the correct venue for their letter, for transfer of the matter to the High Court, they were still blocked by the Appellants (See paragraph 1.05 and 1.06 of Appellants brief). The Respondents were then made wiser and so filed the Notice to discontinue Suit! Surprisingly, the Appellants still fought that move, on the lame excuse that the Upper Area Court must first hear the objection to jurisdiction and rule before the Respondents could withdraw the action. That cannot be a correct position of law. By applying to withdraw the suit at the Upper Area Court, I think, the effect of the Applicants’ objection to jurisdiction had been achieved, even without their moving their motion! After all, the legal effect of Applicants’ preliminary objection, challenging the jurisdiction of the upper Area Court, would have been the striking out of the Respondents’ Suit at the upper Area court, (if the motion had been argued and tip held). What else was the Appellants looking for?
To fight against the Respondents’ new suit at the High Court, after the withdrawal of the case at the upper Area court, was therefore ill advised and, in fact, an indulgence in the very wrong doing they (Appellants) Respondents of, that is, abuse of the use of court process!
Authorities are replete on what constitutes abuse of the judicial process or abuse of court process. In the case of SARAKI V. KOTOYE (1992) 11-12 SCNJ it was held that:
“The abuse consists in the intention, purpose and aim of the person exercising the right of issue (of judicial process) to harass, irritate and annoy the adversary, and interfere with administration of justice, such as instituting different actions between the same parties simultaneously in different courts even though on different grounds…”
See also the case of DINGOLI vs. BARA’U (2012) ALL FWLR (pt.609) 1156 at 1175, where this Court held as follows:
“Abuse of process of the court is a term generally applied to a proceeding which is wanting in bona fide and is frivolous, vexations or oppressive. It can also mean abuse of legal procedures or improper use of judicial process. (Amaefulu v. State (1988) 2 NWLR (Pt.75) 156; Adefulu v. Secretary, Ikene Local Government (2002) 42 WRN 68; African Reinsurance Corporation v. J.D.P. Construction (Nig.) Ltd. (2003) FWLR (Pt.176) 667; (2003) 2 – 3 SC 47 referred to (p.1173), paras F – G.
In OGOEJEOFO V. OGOEJEOFO (2006) 3 NWLR (Pt.966) 205, it was held
“The circumstances that will give rise to abuse of court process include:
(a) Instituting multiplicity of a actions, on the same subject matter against the same opponent on the same issues or multiplicity of actions on the same matter ;
(b) Instituting different actions between the same parties, simultaneously, in different courts, even, though on different grounds;
(c) Where two similar processes are used in respect of the exercise of the exercise of the same right;
(d) Where an application for adjournment is sought by a party to an action to bring an application to court for leave to raise issues of facts already decided by the court;
(e) Where there is no law supporting a Court process or where it is premised on frivolity or recklessness”
Of course, the Appellants’ position would have been justified, if the Respondents’ action in the Upper Area Court were subsisting at the time the Appellants brought the application to dismiss the suit at the High Court.
The fact that the suit at the Upper Area Court (Suit No UACF/CVFI/2009 which, by admission of the appellants; earlier replaced suits No UAC11/CVF/58M/2008 and UAC/11/CVF/60M/2008) had been withdrawn, as per the Notice to discontinue the same, filed on 217/2010 (which had automatic effect on the suit at the Upper Area Court); the Respondents could not of abusing the judicial process, in the circumstance, by filing multiple the same matter against the same defendants.
The Appellants should rather be blamed for not knowing when to halt their ill-conceived pursuit of the case of the Respondents to kill it and deny them a hearing. After the Respondent had filed a notice of discontinuance of the action at the Upper Area Court, which was not due for hearing, the coast became clear for them to come to the High Court, which had jurisdiction to hear their case, as that was that the Appellants were, indirectly, pressurizing the Respondents to do. And from the moment of filing the NOTICE TO DISCONTINUE (the) Suit on 2/7/2010, the Appellants’ motion at the Upper Area Court, challenging the jurisdiction of that court to hear the case, Respondents, expired, as it would be a mere academic exercise to hear the motion, as the Appellants insisted.
In the case of OGUNLEYE vs AINA (2012) 28 WRN 41, we deprecated the waste of judicial time on academic issue which enures no profit not even to the applicant. See also the case (ODEDO V. INEC) (2008) 17 NWLR (PART 1117) 554; SHETTIMA vs GONI (2012) ALL FWLR (Pt.609) 1007; CPC VS INEC (2012) ALL FWLR (Pt.617) 605 at 651 – 652.
I hold that the learned trial judge was right in his findings and conclusion that the Respondents’ case was not an abuse of the court process.
I resolve the issue against the Appellants and hold that the appeal is devoid of merit and ought to be dismissed. It is, accordingly, dismissed as I uphold the ruling of the Lower court in the Suit No.KWS/OF/18/2010, delivered on 31/5/2011.
The Appellants shall pay the cost of this action, assessed at N30,000.00 (Thirty thousand naira) only, to the 1st and 2nd Respondents.
PAUL ADAMU GALINJE, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother Mbaba JCA and I entirely agree that the suit at the lower court does not constitute an abuse of court process.
For the same reasons ably articulated in the lead judgment, which I adopt as mine, I too dismiss the appeal and endorse the order on costs.
OBANDE OGBUINYA, J.C.A.: I had read, in draft, the judgment delivered by my learned, Ita G. Mbaba J.C.A. and I agree with his reasons and conclusions therein.
The law is firmly established that a notice of discontinuance, when filed in the registry of the Court where a matter is pending, puts an end to its existence. There is no evidence that the respondents’ matter in the Upper Area Court was fixed for hearing or part-heard before it to necessitate the leave of that court in respect of the notice of discontinuance, see Umeanadu v. A. G. Anambra State (2008) 9 NWLR (Pt.1091) 175; Onwuka v. Ononuju (2009) 11 NWLR (Pt.1151) 774.
It follows that the very moment the first respondent filed the notice of discontinuance in the upper Area Court, on 02/07/2010, that court lost its dominion over the respondents’ matter pending before it. On that score, there was nothing pending before the Upper Area Court for the respondents’ action the lower court to abuse. The law, heavily, counts against the appellants in this appeal.
For the above reason, coupled with more elaborate ones marshalled in the leading judgment, I, too, dismiss the appeal and abide by the consequential orders made therein.
Appearances
Appellants: Tunde Falola Esq with him Ayironde Ishola Esq.For Appellant
AND
1st & 2nd Respondents: Adewale Olatunde Esq with him A. B. Adesina Esq
3rd Respondent: Saheed Uthman Esq:For Respondent
