CHIEF A. A. WORLU v. CHIEF W.J. WOCHA (JP)
(2010)LCN/3849(CA)
In The Court of Appeal of Nigeria
On Monday, the 7th day of June, 2010
CA/PH/36/2005
RATIO
APPEAL: INSTANCES WHERE APPEALS WILL LIE AS OF RIGHT FROM THE DECISION OF THE HIGH COURT
The only instances where appeals lie as of right from the decision of the High Court to this court are listed in section 241 of the Constitution are as follows:-
(b) where the ground of appeal involves questions of law alone, decisions in any civil criminal Proceedings;
(c) decisions in any civil or criminal proceedings on questions at to the interpretation or application of this Constitution;
Most interlocutory appeals, not all, fall outside section 241 (1) of the constitution. Appeals under section 241 (1) of the constitution are filed or lodged as of right. Appeals under section 242 (1) of the Constitution are not as of right. They require leave of either this court or the court below. Appeals brought under section 241 (1) (b) & (c) of the Constitution particularly, though interlocutory, do not require leave. These are appeals in respect of decisions in any civil or criminal proceedings before a High Court on interpretation or application of the constitution, and where the ground of appeal against such decisions involves question:; of law alone. The grounds of appeal in the instant appeal appear to be one of law alone. As stated by this court (per Lokulo-Sodipe, JCA) in MIN.FED CAPITAL TERRITORY v. ABDULLAHI (2000) ALL FWLR (pt.507) 179 relying inter alia on MADUABUCHUKWU v. MADUABUCHUKWU (2006) ALL FWLR (pt.318) 695; ADETONA v. EDET (2001) 3 NWLR (pt.699) 186 etc a party appealing against an interlocutory decision, where the ground of appeal involves question of law alone, need not seek leave of court to appeal: section 241 (1) (b) of the Constitution.
However, he exercises the right of appeal strictly under section 24 Court of Appeal Act 2004 which prescribes the periods for filing notices of appeal. The period for giving notice of appeal, where the appeal is against interlocutory decision, is 14 days. PER EJEMBI EKO, J.C.A
APPEAL: HOW DOES THE COURT DETERMINE IF AN APPEAL IS FINAL OR INTERLOCUTORY
In determining whether an appeal is final or interlocutory the Supreme Court, from a number of decisions including AKINSANYA v. U.B.A. (1986) 4 NWLR (pt.35) 273; NAWL NIG LTD v. SPDC NIG LTD (2004) 6 NWLR (pt.869) 286 etc, has settled the applicable test. That is, by looking at the nature “of the decision/order being appealed, and not at the nature of the application or the relief sought. Therefore, applying that test, by looking at the order dismissing the application to dismiss the suit no PHC/240/2002 on the ground of abuse of court process and setting down the suit for hearing and determination on the merits, I have no difficulty holding that this appeal is against the interlocutory decision of the trial court on 12th July, 2004. This much was conceded by the appellant’s counsel when he submitted that since the trial court did not agree with their contention its derision was interlocutory. An order or decision which disposes of only an issue (s) without determining finally the rights of the parties to the suit is merely interlocutory: OMONUWA v. OSHODI (1985) 2 NWLR (pt.10) 924. PER EJEMBI EKO, J.C.A
COURT PROCESS: EFFECT OF A PROCESS FILED OUTSIDE THE PRESCRIBED TIME
A process filed outside the prescribed time is a nullity and liable to be struck out: INEC v. OKORONKWO (2009) ALL FWLR (pt.a88) 227. PER EJEMBI EKO, J.C.A
PROCEDURE: ABUSE OF COURT PROCESS; WHAT AMOUNTS TO ABUSE OF COURT PROCESS
I have painstakingly considered the briefs of argument filed by the parties and I agree with the respondent that to amount to abuse of process of court, a party must have got more than one case pending in the same court or different courts on the same subject matter and between the same parties or their proxies or privies. The plaintiff must be going in and out of the courts and thus bringing himself within the meaning of a vexatious litigant who should be restrained by the law on grounds of public policy. It is clearly an abuse of the process of the court when a party brings to court frivolous and vexatious suits to the annoyance of his adversary. Filing a suit as a substitute for a pending one which the party intends to withdraw against his adversary is not an abuse of the process of the court. Each case, of course, depends on its own peculiar facts and circumstances. Generally, as the supreme court in EDJEROME v. IKINE (2010 12 SCNJ 184 at 224 stated:
It can not amount to abuse of court process if what is done was that the plaintiff filed another action to substitute it for the one already pending. He may decide to do this instead of seeking amendment of the earlier suit. PER EJEMBI EKO, J.C.A
JUSTICES
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
Between
CHIEF A. A. WORLU – Appellant(s)
AND
CHIEF W.J. WOCHA (JP) – Respondent(s)
EJEMBI EKO, J.C.A (Delivering the Leading Judgment): This appeal is against the Ruling of the High Court of Rivers State (Coram E.N.T. Ebete, J) delivered on 12th day of June 2004 dismissing the application of the Appellant, as the defendant/applicant thereat, seeking inter alia an order dismissing the suit against him on the ground that the suit was an abuse of court process. The Contention of the Appellant was that the respondent, as the plaintiff, had abused the process of the trial court by his filing of multiple suits involving the same parties over the same subject at the same time. The respondent, as the plaintiff, replied that his suit filed as a substitute for the one already pending could not amount to abuse of process.
The Appellant filed the motion praying for dismissal of the respondent’s suit No PHC/240/2002 on grounds of abuse of process of the court on 21st February, 2002. The 11 paragraph affidavit in support avers inter alia –
4. That I was sued to court by the plaintiff in suit No PHC/30/2002 CHIEF W.J. WOCHA (JP) v. CHIEF A.A. WORLU.
5. That the subject matter of that suit is a exactly (sic) same as this one. A certified true copy of the writ of summons and al it’s attachments are hereby attached and marked as Exhibit ‘A’.
6. That the suit No. PHC/30/2002 is currently pending at High Court No.5 Port Harcourt ‘wherein the presiding Judge adjourned the matter to the 5th day of March 2002 at the same instance of the plaintiff for motion for interlocutory injunction.
7. That while that suit is pending at High Court No.5 Port Harcourt the plaintiff filed the same matter in this court.
In response the respondent, as plaintiff, on 1st March 2002 filed his counter-affidavit averring that on 11th February 2002 he filed his Notice of Withdrawal of the suit no. PHC/30/2002 to discontinue the suit, and that the Notice dated 8th February 2002 and filed on 11th February 2002 was served on the defendant, this present appellant, on the same 11th February 2002. The said Notice of Intention to withdraw suit No PHC/30/2002 was attached as Exhibit ‘A’ to the counter-affidavit. The suit No PHC/30/2002 on the application of the respondent’s counsel in open court was struck out on 5th March 2002.
I notice from the record of the appeal that the motion, the subject of this appeal, was moved on 17th April, 2002, more than 32 days after suit no PHC/30/2002 had been struck out and that on 5th March 2002 Mr. Uchendu, counsel for the appellant, as the defendant, did not oppose the respondent’s application that the suit no PHC/30/2002 be struck out as he did not intend to proceed with it any further. He did this to pave way for the suit no PHC/240/2002.
The nature of the application to dismiss suit no. PHC/240/2002 on ground of abuse of court process was too dear decisively and finally, with the said suit as the suit no PHC/30/2002 had been withdrawn and struck out. The learned trial Judge was not convinced that suit no PHC/240/2002 constituted an abuse of the process of the trial court. On 12th July, 2002 the learned trial Judge ruled in favour of hearing suit no PHC/240/2002 on merit and consequently dismissed the appellant’s application; hence this ,appeal. The appeal was filed on 28th July, 2004 – 16 days after the decision/order dismissing the application.
At the hearing of the appeal on 28th April, 2010 we asked the counsel for the parties if the appeal was an interlocutory or final appeal? We asked this question quite cognissant of the rule of law that where the court raises any issue suo motu, the parties must be heard on the issue: OJUKWU v. YAR’ADUA (2009) ALL FWLR (pt.482) 1065 at 1143.
Mr. Uchendu for the appellant submitted that if the trial court agreed with their submission it was a trial appeal; that if the trial court did not agree with them then it was an interlocutory appeal, and that in the circumstance the appeal was against the final decision of the trial court. Mr. Nyenke for the respondent was more forthright.
He submitted that as the appeal was against the ruling dismissing an interlocutory application it was an interlocutory appeal and therefore ought to have been commenced only upon leave sought and granted. He urged us to dismiss the appeal.
The only instances where appeals lie as of right from the decision of the High Court to this court are listed in section 241 of the Constitution are as follows:-
(b) where the ground of appeal involves questions of law alone, decisions in any civil criminal Proceedings;
(c) decisions in any civil or criminal proceedings on questions at to the interpretation or application of this Constitution;
Most interlocutory appeals, not all, fall outside section 241 (1) of the constitution. Appeals under section 241 (1) of the constitution are filed or lodged as of right. Appeals under section 242 (1) of the Constitution are not as of right. They require leave of either this court or the court below. Appeals brought under section 241 (1) (b) & (c) of the Constitution particularly, though interlocutory, do not require leave. These are appeals in respect of decisions in any civil or criminal proceedings before a High Court on interpretation or application of the constitution, and where the ground of appeal against such decisions involves question:; of law alone. The grounds of appeal in the instant appeal appear to be one of law alone. As stated by this court (per Lokulo-Sodipe, JCA) in MIN.FED CAPITAL TERRITORY v. ABDULLAHI (2000) ALL FWLR (pt.507) 179 relying inter alia on MADUABUCHUKWU v. MADUABUCHUKWU (2006) ALL FWLR (pt.318) 695; ADETONA v. EDET (2001) 3 NWLR (pt.699) 186 etc a party appealing against an interlocutory decision, where the ground of appeal involves question of law alone, need not seek leave of court to appeal: section 241 (1) (b) of the Constitution.
However, he exercises the right of appeal strictly under section 24 Court of Appeal Act 2004 which prescribes the periods for filing notices of appeal. The period for giving notice of appeal, where the appeal is against interlocutory decision, is 14 days.
The next question is whether this appeal is against interlocutory “or final decision? In determining whether an appeal is final or interlocutory the Supreme Court, from a number of decisions including AKINSANYA v. U.B.A. (1986) 4 NWLR (pt.35) 273; NAWL NIG LTD v. SPDC NIG LTD (2004) 6 NWLR (pt.869) 286 etc, has settled the applicable test. That is, by looking at the nature “of the decision/order being appealed, and not at the nature of the application or the relief sought. Therefore, applying that test, by looking at the order dismissing the application to dismiss the suit no PHC/240/2002 on the ground of abuse of court process and setting down the suit for hearing and determination on the merits, I have no difficulty holding that this appeal is against the interlocutory decision of the trial court on 12th July, 2004. This much was conceded by the appellant’s counsel when he submitted that since the trial court did not agree with their contention its derision was interlocutory. An order or decision which disposes of only an issue (s) without determining finally the rights of the parties to the suit is merely interlocutory: OMONUWA v. OSHODI (1985) 2 NWLR (pt.10) 924.
Since the decision appealed is interlocutory section 24 (2) of the Court of Appeal Act, 2004 applies. Therefore, in the light of the said provision, the period for giving notice of appeal or application for leave to appeal against such an interlocutory decision is 14 days. The date of the decision appealed is 12th July 2004. The notice of appeal was filed on 28th July, 2004 – 16 days after the decision. By dint of section 24 (2) of Court of Appeal Act, 20)4 the notice of appeal filed on 28th July 2004 (i.e. 16 days after the decision appealed) is incompetent. There has been no application for extension of time within which to appeal and none has been granted to the appellant.
A process filed outside the prescribed time is a nullity and liable to be struck out: INEC v. OKORONKWO (2009) ALL FWLR (pt.a88) 227.
Accordingly, by virtue of the powers conferred on this Court to strike out an incompetent notice of appeal by Order 6, Rule 6 of the Court of Appeal Rules 2007 this appeal shall be and is hereby struck out.
This is enough to dispose of the appeal. I will, however, briefly consider the merits of the appeal for whatever it is worth. On 28th April 2010 the parties, through their respective counsel, adopted their briefs of argument.
The indisputable facts on the record of appeal clearly establish that the respondent, as the plaintiff, first filed suit no PHC/30/2002 against the appellant, as the defendant. He thereafter filed suit no PHC/240/2002 against the same defendant. On 11th February 2002 he filed Notice of Intention to withdraw suit no PHC/30/2002.
Pursuant to this Notice of Intention to withdraw suit no PHC/30/2002 the respondent, as the plaintiff in both suits nos. PHC/30/2002 and PHC/240/2002, through his counsel Mr. Njoku, announced in open court at the hearing of suit no PHC/30/2002 on 5th March, 2002 that he no longer intended to prosecute suit no PHC/30/2002 and therefore applied to have it struck out. The appellant, as the defendant, through his counsel, Mr. Uchendu, not opposing the application, the suit was there and then struck out on the said 5th March, 2002. It is noteworthy that the application to dismiss suit no PHC/240/2002 for abuse of process v/as filed in that suit on 21st February, 2002, 10 days after the Notice of Intention to withdraw suit no PHC/30/2002 was filed. Thereafter on 5th March, 2002 suit no PHC/30/2002 struck out with concurrence or acquiescence of the appellant/applicant. The ground for this application was the tendency of suit no PHC/30/2002 this application was pending when suit no PHC/30/2002 was on 5th March, 2002 was withdrawn and struck out by consent of the present appellant and his counsel, Mr. Uchendu At all hearings of the application for dismissal of suit no PC/240/2002 subsequent to the striking out of suit no PHC/ 30/2002 only one suit between the parties was pending. It is, therefore, clear beyond doubt that suit no PHC/240/2002 was to be substituting for suit no PHC/30/2002, which was no longer pending when the application to dismiss suit no PHC/240|2002 was heard.
I have painstakingly considered the briefs of argument filed by the parties and I agree with the respondent that to amount to abuse of process of court, a party must have got more than one case pending in the same court or different courts on the same subject matter and between the same parties or their proxies or privies. The plaintiff must be going in and out of the courts and thus bringing himself within the meaning of a vexatious litigant who should be restrained by the law on grounds of public policy. It is clearly an abuse of the process of the court when a party brings to court frivolous and vexatious suits to the annoyance of his adversary. Filing a suit as a substitute for a pending one which the party intends to withdraw against his adversary is not an abuse of the process of the court. Each case, of course, depends on its own peculiar facts and circumstances. Generally, as the supreme court in EDJEROME v. IKINE (2010 12 SCNJ 184 at 224 stated:
It can not amount to abuse of court process if what is done was that the plaintiff filed another action to substitute it for the one already pending. He may decide to do this instead of seeking amendment of the earlier suit.
This case is one of such.This appeal, on the merits, lacks substance. The appeal being frivolous, smacks of an abuse of process; the ulterior motive of which is merely to delay the trial of suit no PHC/240/2002. The respondent is entitled to costs which I hereby assess at N40,000.00 in his favour against the appellant.
ISTIFANUS THOMAS, J.C.A. I have had the privilege of reading in advance the lead judgment of my learned brother, Eko, JCA, just delivered and I entirely agree that the appeal lacks merit and is ought to be dismissed being an abuse of court process. I affirm the decision of the trial court in which it dismissed the appellants’ application.
I abide with consequential orders including costs in the lead judgment.
TIJJANI ABDULLAHI J.C.A: I have had the advantage of reading in draft the lead judgment of my learned brother, EKO, JCA Just delivered in this appeal. I agree with him entirely that there is no merit at all in this appeal and it ought to be dismissed.
For the reasons which were given in the said judgment, which I adopt as mine, I also dismiss this appeal and abide by the order as to costs contained therein’
Appearances
V.M. Uchendu, Esq. with Okechukwu NwoguFor Appellant
AND
J.O. NyenkeFor Respondent
