AONDO IKYANN ORS v. CHIEF EMMANUEL AKOSU IYORDE & ORS (2019)

AONDO IKYANN ORS v. CHIEF EMMANUEL AKOSU IYORDE & ORS

(2019)LCN/13446(CA)

In The Court of Appeal of Nigeria

On Monday, the 10th day of June, 2019

CA/PH/21/2008

RATIO

ABUSE OF COURT PROCESS: CONSTITUENTS

On the constituents of an abuse of Court process, the Supreme Court stated in the case of ACB VS NWAIGWE (2011) VOL.1 (PT.1) MJSC1 AT PAGES 12 – 13 that Abuse of Court process have been variously defined by this Court over the years and includes a situation where a party improperly uses judicial process to irritation, harassment and annoyance of his opponent and to interfere with the administration of justice. Where two or more similar processes are issued by a party against the same party/parties in respect of the exercise of the same right and the same subject matter or where the process of the Court has not been issued bonafide and properly… In the case of ADESOKAN VS ADEGOROLU (1991) 3 NWLR (PT. 293) 297, it was held that to institute an action during the pendency of another one claiming the same reliefs amount to an abuse of Process of Court. It does not matter whether the matter is an appeal or not, for as long as the previous action has not been finally decided, the subsequent action constitutes an abuse of process of Court.PER ISAIAH OLUFEMI AKEJU, J.C.A.

JUSTICES

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria

Between

1. AONDO IKYANN
2. AGEE BERNARD
3. AJOKO MICHEAL
4. ZAWUA TERZUNGWE
5. IKOMBO JOHN
6. ABAGU DANIEL
7. TANKO ISA
8 .MICHEAL UNDE
9 .CORPORATE AFFAIRS COMMISSION (CAC) Appellant(s)

AND

1. CHIEF EMMANUEL AKOSU IYORDE
2. TERCHEMEN IYORDE
3. SAMUEL T. AKOSU
4. GBAGIR YEGHKA
5. DENNIS ALUMUN AKOSU
6. SIMON TERFA AKOSU
7. WONOV UKO
8. SIMON IYOZUA
9. DANIEL HENRY
10. IKYERNUM IMBOR
11. AKOSU IYORDE & SONS CO. LTD
12. INCORPORATE TRUSTEES OF GBOKO
YAM SHADE OWNERS ASSOCIATION Respondent(s)

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): The Respondents as the Plaintiffs commenced suit No. FHC/PH/CS/17/2003 at the Federal High Court, Port Harcourt by the Writ of Summons filed on 14/1/2003 for the following reliefs against the Appellants who were the defendants;
1. A declaration that the plaintiffs are the ones entitled to the administration and running of the 12th plaintiff.
2. A perpetual order of injunction restraining the 1st to 8th Defendants jointly and severally either by themselves or their agents, or privies from trespassing, encroaching in anyway disturbing the peaceable occupation, enjoyment, and the carrying out of lawful business/ activities of the plaintiffs as the Governing body and incorporated trustees of the 12th plaintiff operating at Gboko Yam Zone Creek Road, Port Harcourt.
3. A perpetual order of injunction restraining the 1st to 8th defendants jointly and severally, either by themselves or their agents or privies from applying to the 9th defendant to alter or change the composition of the Incorporated Trustees of the 12th plaintiff.
?4. A perpetual Order of injunction

restraining the 9th defendant from altering or changing the composition of the Incorporated Trustees of the 12th Plaintiff in any way howsoever requested by the plaintiffs herein.
5. An Order for the cancellation of any purported change in the composition of the Incorporated Trustees of the 12th plaintiff made by the 9th defendant.
6. General damages in the sum of N4,000,000.00 (Four Million Naira) as against the 1st to 8th defendants jointly and severally for meddling and inter meddling with the operations of the Incorporated Trustees of the 12th Plaintiff contrary to the rights and interest of the plaintiffs in respect thereof.

These reliefs were also stated in paragraph 24 of the statement of claim filed with the Writ of Summons.

By the motion exparte filed by the plaintiffs on same 14/1/2003 they prayed the Court for an order of interim injunction restraining the 1st to 8th Defendants jointly and severally either by themselves or their agents, or privies from trespassing, encroaching or in any way disturbing the peaceable occupation, enjoyment and the carrying out of lawful business/activities of the plaintiffs as the Governing

Body and the Incorporated Trustees of the 12th Plaintiff operating at Gboko Yam Zone Creek Road, Port Harcourt pending the determination of the motion on Notice. Also for order of interim injunction restraining the 1st to 8th Defendants jointly and severally either by themselves or their agents, or privies from applying to the 9th defendant to alter or change the composition of the incorporated trustees of the 12th plaintiff, as well as another order of interim injunction restraining the 9th defendant from altering or changing the composition of the Incorporated Trustees of the 12th plaintiff in anyway howsoever except as fully requested by the plaintiffs herein.

The motion on notice filed with the motion exparte contained the same prayers save that the orders sought were for interlocutory injunction.

The Appellants as the Defendants/Respondents filed a Counter Affidavit while the Applicants, now Respondents filed a Further Affidavit. The Defendants subsequently filed their statement of Defence after seeking and obtaining the order of Court extending the time to file same. They also made claims for declaration, restraining order and N10,000,000.00

being special and general damages for losses incurred by them.

The plaintiffs again filed a motion on notice on 10/2/05 for order of Court that four representatives each of the plaintiffs and the Defendants be nominated and appointed by the parties to run the business affairs/activities of the Incorporated Trustees of Gboko Yam Shade Owners Association, the 12th plaintiff pending the determination of the substantive suit, as well as an order that the proceed realized from the running of the business affairs/ activities of the Incorporated Trustees of the 12th Plaintiff be deposited in Court or in an interest yielding account in a reputable bank pending the determination of the substantive suit. Another motion for the same prayers was filed on 8th March, 2005.

By their motion on notice filed on 18/3/05, the defendants/Applicants sought orders striking out the motions on notice filed by the plaintiffs / Respondents on 10/2/05 and 8/3/05 on the ground that they both constituted an abuse of Court process.

The Plaintiffs /Respondents filed a Counter affidavit to the motion and the Court after taking written and oral submissions on the pending

motions delivered a Ruling on 23rd June, 2006, contrary to the contention of the Appellants that the motions sought to be struck out constituted abuse of Court process especially against suit No. PHC/1124/2002 at the Rivers State High Court held that the issues on both PHC/1124/2002 and the motions filed by the plaintiffs now Respondents are clearly not the same though they both relate to and affect the 12th Plaintiff. The Federal High Court (now called the lower Court therefore dismissed the Appellants application for lacking in merit.

Against this decision of the lower Court the Appellants commenced this appeal through the Notice of Appeal filed on 31/05/07 with two grounds of appeal which was subsequently amended after first seeking and obtaining the leave of Court to lodge the appeal and for the amendment.

In the Appellants Brief of Argument filed on 15/10/08 the learned counsel for the Appellants formulated two issues for determination thus:
1. Whether the learned trial Judge was right in holding that the motion on Notice filed on 8th day of March, 2005 is not an abuse of the process of Court having regard to the existence of suit

No. PHC/1124/2002 pending before the High Court of Rivers State.
2. Whether the Trial Judge was right when he held that a Motion in a pending suit cannot be an abuse to another suit without the suit in which the motion is pending being an abuse of the other suit.

It is quite pertinent to state that the Respondents did not file a Brief of Argument and therefore raised no issue in this appeal.
The failure by the Respondent to file a brief is however not material to the outcome of the appeal. The consequence of failure to file the Respondents? brief is that it will be deemed that the respondent is not interested in the appeal or it will be deemed that such a respondent has admitted the truth of all the appellant has stated in his own brief in so far as they are borne out by the records and the respondent has agreed to be bound by the outcome of the appeal. The Appellant will however succeed only on the strength of his own case. See SOFOLAHAN & ORS VS. CHIEF FOLAKAN (1999) 10 NWLR (PT. 621) 86; UNITY BANK PLC VS BOUARI (2008) 7 NWLR (PT. 1086) 372.

Arguing the two issues together, the learned counsel for the Appellants contended that

the issue in suit No. PHC/1124/2002 is one and the same with the issues raised in the motion filed by the Respondents on 8/3/2005 and the grant of the application will adversely affect the subject matter of suit No. PHC/1124/2002 which is the control of the Gboko Yam Sellers and Shade Owners Association and its management. It was further contended that an order allowing the Respondent to nominate and/or appoint four representatives to run the business of the incorporated Trustees of the Gboko Yam Shade Owners Association is an order contrary to the Appellants? 2nd, 3rd and 4th prayers in suit No. PHC/1124/2002 for declaration and injunction.

The Appellant contended that if the Respondents? prayer in their motion of 8th March, 2005 are granted, that would commission the Respondents to interfere with the business of the Appellants which is the gravamen of the claim in suit No. PHC/1124/2002, and an order allowing the Respondents to nominate or appoint four representatives to run the business of the Incorporated Trustees of the Gboko Yam Shade Owners Association will be contrary to Appellants? prayers 2, 3 and 4 in suit No. PHC/1124/2002

which are for declaration and injunction. It was contended that the motion of 8th March, 2005 is meant by the Respondents to enable them circumvent the judgment of the Rivers State High Court.

It was submitted that the subject matter of the Appellants? suit and the motion of the Respondents is the management and control of the business of the Gboko Yam Sellers/ Shade Owners Association and as such, the motion is clearly bereft of bonafide and accordingly constitutes an abuse of Suit No. PHC/1124/2002. It was argued that the learned trial judge misconceived the facts of Suit No. PHC/1124/2002 having regard to the reliefs 2, 3 and 4 therein when he held that the prayer in the Respondent?s motion seeking an order appointing them into the administration and management of the Incorporated Trustees of the Gboko Yam Sellers and Shade Owners Association will not interfere with the verdict of the Rivers State High Court if granted. It was submitted that where matters involving same issues are raised contemporaneously in different Courts it is desirable that the matter be heard in only one of those Courts; DUMEZ (NIG.) LTD VS UBA (2006) 14 NWLR (PT.1000)

515. It was further submitted that when the issues in the motion filed by the Respondents and Suit No.PHC/1124/2002 are actions compared with the consequences of the reliefs sought there is no doubt that there is abuse of Court Process; C.O.M. INC. VS COBHAM (2006) 15 NWLR (PT.1002) 283. It was further submitted that an abuse involves some bias, malice some deliberateness, some desire to misuse or pervert the system where malafide can be deciphered from the commencement of a process of Court; PLATEAU STATE VS A.G. FEDERATION (2006) 3 NWLR (PT.967) 346, that the institution of two suits will not amount to an abuse, where they are not between same parties and same reliefs but where they involve same parties and reliefs there is an abuse of Court process; KOLAWOLE VS. A.G. OYO STATE (2006) 3 NWLR (PT.966) 50.

It was submitted that contrary to the Ruling of the lower Court that a motion in a pending suit cannot be in abuse of the other suit is erroneous because an abuse of process is more in procedure than in substance and it is the proper or improper use of the Court?s process which is wanting in bonafide, what is taken into account is that the parties

and the reliefs are the same as well as the intent and purpose of issuing the process.

On the constituents of an abuse of Court process, the Supreme Court stated in the case of ACB VS NWAIGWE (2011) VOL.1 (PT.1) MJSC1 AT PAGES 12 ? 13 that ?Abuse of Court process have been variously defined by this Court over the years and includes a situation where a party improperly uses judicial process to irritation, harassment and annoyance of his opponent and to interfere with the administration of justice. Where two or more similar processes are issued by a party against the same party/parties in respect of the exercise of the same right and the same subject matter or where the process of the Court has not been issued bonafide and properly… In the case of ADESOKAN VS ADEGOROLU (1991) 3 NWLR (PT. 293) 297, it was held that to institute an action during the pendency of another one claiming the same reliefs amount to an abuse of Process of Court. It does not matter whether the matter is an appeal or not, for as long as the previous action has not been finally decided, the subsequent action constitutes an abuse of process of Court.

Also in OGBORU VS UDUAGHAN (2011) 12 (PT.II) MJSC 30 at 49 it was held that:
When an abuse of Court Process is said to occur, it showcases a situation where a party has instituted a Court process with the clear lack of bonafides leading to annoyance and irritation of other party, with an aim to over reach with the attendant of having the Court itself directly vexed.? See also DINGYADI V INEC (2011) VOL. 4 MJSC1?.

After hea