ESOGWA & ORS v. NWOSU (2020)

ESOGWA & ORS v. NWOSU

(2020)LCN/14204(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Friday, May 29, 2020

CA/OW/21/2018

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

1. GORGE ESOGWA 2. SYLVANUS IWUOHA 3. SYLVESTER IWUOHA APPELANT(S)

And

CORNELIUS NWOSU (Head Nwosu Oleru Family Of Umuokwaraugo Umunabala Umuishie Village, Abajah) RESPONDENT(S)

RATIO

WHETHER OR NOT RAISING AN OBJECTION AGAINST ONE OR MORE GROUNDS OF APPEAL TRANSLATES TO A PRELIMINARY OBJECTION

It has been stated, several times, in leading Court decisions, that raising an objection against one or more grounds of appeal, in an appeal, does not translate to apreliminary objection against the hearing of the Appeal, as envisaged by Order 10 Rule 1 of the Court of Appeal Rules, 2016; that is, a Preliminary Objection is properly so called, when the determination of the same can terminate the Appeal, in limine, without the need to determine it on the merits. But an objection to a given ground of appeal will only affect the said ground of the Appeal, if successful, and the remaining grounds remain to give life to the Appeal, to be heard on the merits. See Alaribe Vs Okwuonu (2015) LPELR – 24297 (CA);Osuji Vs The State (2016) LPELR – 40042 (CA); Nwaolisah Vs Nwabufoh (2011) 14 NWLR (Pt.1268) 600; Mbata Vs Umezurike & Ors (2019) LPELR – 47331 (CA).
See alsoAdejumo Vs Olawaiye (2014) NWLR (Pt.1421) 252 at 265, where the Supreme Court said:
“A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal… Where a preliminary objection would not be the appropriate process to object or show to the Court defects in the processes filed before it, a motion on notice filed complaining about the grounds or defect would suffice.” The above decision was applied in the case ofOnuegbu & Ors Vs Gov., of Imo State &Ors (2015) LPELR – 25968 CA. PER MBABA, J.C.A.

WHETHER OR NOT FAILURE TO SERVE PROCESS IS A FAILURE WHICH GOES TO THE ROOT OF THE SUIT

In Kangnaan Vs Kangnaan (2019) LPELR – 46502 (CA), this Court held:
“It is trite that failure to serve process, where required… is a failure which goes to the roots of the Suit. It is a fundamental vice, because the service of such process is a condition precedent to exercise of jurisdiction by the Court… See Kalu Mark & Anor Vs Gabriel Eke (2004) 5 NWLR (Pt. 865) 54; Adeigbe & Anor Vs Kusimo & Anor (1965) NMLR 284; Skenconsult Nig Ltd Vs Ukey (1981) 1 SC 6; NBN Ltd Vs Guthrie Nig Ltd & Anor (1993) 3 NWLR (Pt.284) 643; Chief J. OlorunYolemi and Anor Vs Mrs. Helen Akhagbe (2010) 8 NWLR (Pt.1195) 48; Estate of late Chief Humphrey I.S. Idisi Vs ECODRIL Nig Ltd & Ors (2016) LPELR – 40438.” Per Oniyangi JCA The authorities are replete on this, especially with regard to the need to serve hearing notice on parties, which must stipulate when and where the case would be heard, to enable the parties to prepare and attend Court. See Abidogun Vs Ogunwale (2019) LPELR – 48202 (CA), which relied on the Supreme Court decision in the case of ENI Consortium Ltd Vs Shambilat Shelter Nig Ltd (2018) LPELR – 43902 SC, to the effect that:
“Serving of hearing notice on appellant is a pre-condition to the exercise of jurisdiction of the Court below, as it is basic to the exercise of jurisdiction of the Court. The flipside of the coin is that non-service of hearing notice therefore robs the Court of jurisdiction to hear and determine the matter and any order made against the party who should have been served with the hearing notice, becomes null and void.” Per Peter-Odili JSC. PER MBABA, J.C.A.
WHAT CONSTITUTES AN ABUSE OF COURT PROCESS

A case is said to be an abuse of the Court process, where and when it is filed to pursue mischief and/or to circumvent the course of justice, or to annoy, irritate, and infuriate the opponent, or to frustrate his case, or ridicule the Court, among other unsalutory reasons. See the case of Globe Motor Holdings Ltd Vs Honda Motor Co. Ltd (1998) 5 NWLR (Pt.550) 373 at 381, where the Supreme Court said:
“An instance of such (abuse)… is in the form of vexations and oppressive actions… when an action is instituted deliberately to circumvent the course of justice and bring the judicial process into ridicule and contempt… Any action or course of conduct that is seen designed to introduce anarchy into the judicial system must be dealt with appropriately.”
See also Onwueme & Anor Vs Customary Court Mbawsi & Ors (2018) LPELR – 44474 (CA), which adopted the above position of law.
In Edjerode Vs Ikine (2001) LPELR – 1479 SC, the Supreme Court held:
“The law is that abuse of Court Process in regard to multiple actions between the same parties in the same subject matter, may arise when a party improperly uses judicial process to the irritation, annoyance and harassment of his opponent, not only in respect of the same subject matter but also in respect of the same issues in the other actions.”
See also the case of Unamka Vs Ugochukwu & Ors (2019) LPELR – 47032 CA; Julius Berger Nig. Plc Vs Ugo (2020) LPELR – 49544 (CA); Okafor Vs A.G. Anambra State (1991) 6 NWLR (Pt.200) 659; Saraki Vs Kotoye (1992) 9 NWLR (Pt.264) 156; Nnolim Vs Nnolim (2017) LPELR – 41642 CA; Nwosu Vs PDP &Ors (2018) LPELR – 44386 SC. PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This Appeal is against the final decision of Imo State High Court in Suit No. HON/29/2006, delivered on 25th October, 2013 by Hon. Justice T.E. Chukwuemeka Chikeka, wherein the Learned Trial Judge held for the Claimant and granted the reliefs (a), (b) and (c) sought by the Claimant.

The Suit No. HON/29/2006, was filed as a cross action to Suit No. HON/25/2002: Cyprian Esogwa Vs Cornelius Ewuzie Nwosu & Anor, on the same subject matter. The two Suits were subsequently consolidated for hearing. In Suit No. HON/25/2002, filed on 11/4/2002 by late Cyprian Esogwa as Plaintiff and Cornelius Ewuzie Nwosu with Sylvanus Iwuoha, as Defendants, the Plaintiff was seeking, as follow:
(1) A declaration that the Plaintiff is entitled to redeem parcel of land known and called “URU UMUIKE” situate at Umuike Umunabala Village, Abajah Town within jurisdiction, which was pledged by late Ejiogu Nwauche of Plaintiff family to late Nwosu Oleru of the Defendants family several years ago for the supply of “Nkpajiabuonaotueghu” i.e. two pegs of staked yams and one goat, now valued

N10,000.00 (Ten Thousand Naira).
(2) An order of Court compelling the Defendants to accept from the Plaintiff a return of the said “Nkpajiabuonaotuegbu i.e. two pegs of staked yams and one goat valued the of N10,000.00 (Ten Thousand Naira) in redemption of the customary pledge aforesaid.
(3) An order of perpetual injunction restraining the Defendants, by themselves, their servants, agents or privies from further entry on the said land in dispute upon redemption of the customary pledge.” (Page 2 of the Records of Appeal).

But in HON/29/2006, where-of Elder Hillary Iwuoha and Cornelius Ewuzie Nwosu, were Plaintiffs (suing in a representative capacity) and Cyprian Esogwa, Sylvanus Iwuoha and Sylvester Iwuoha were Defendants, the claim was for:
(a) Declaration that the Plaintiffs are entitled to a grant of Customary Right of Occupancy over that piece or parcel of land called “AlaIkpa”, being and situate at Umunabalakindered Abajah in Nwangele L.G.A of Imo State, described by 1st Defendant as ‘Uhu Umuike’ in Suit No. HON/25/2002.
(b) N500,000.00 (Five Hundred Thousand Naira), being damages for trespass

quareclausumfregit committed by the defendants variously and in various occasions in the months of February/March 2006, when first defendant purported to sell the land to the 2nd and 3rd Defendants.
(c) Perpetual injunction restraining the defendants, their servants, agents, workmen or any other person, whosoever, from building concrete structure or any structure at all on the land or further trespassing on the land in dispute bonafide property of Plaintiffs.”

Appellants alleged that after pleadings had been filed and exchanged in Suit No. HON/25/2002, one Elder Hillary Iwuoha (the Head of Iwuoha family), in collaboration with the Respondent, instituted the cross action against Cyprian and the 2nd and 3rd Defendants (Appellants); that Elder Hillary Iwuoha sued for himself, and on behalf of the other members of Iwuoha Oleru family, while the Respondent sued for himself and on behalf of the other members of the Nwosu Oleru family. Appellant further alleged that, after filing the cross action, some Plaintiffs therein came to Cyprian, and pleaded with him, acknowledging the right of Cyprian to ownership of the land in dispute; they pleaded with him

to sell to them the portion of the land in dispute, for which Cyprian instituted the Suit No. HON/25/2002, against 2nd Appellant (who was 2nd Defendant in the said Suit (HON/25/2002); that Cyprian welcomed the plea (appeal) by the Plaintiffs in HON/29/2006 and duly sold the said portion of land in dispute for which 2nd Appellant was also a defendant – that is Suit No. HON/25/2002; that based on that development, Cyprian wrote to the Court, on 25/2/2006, informing the Court that he had settled the dispute with the 2nd Defendant in HON/25/2002, and the said letter was filed in Court on 15/3/2006 (Page 113 of the Records of Appeal).

Appellants’ Counsel referred us to pages 114 to 116 of the Records, carrying the terms of the partial settlement of Suit No. HON/25/2002, and that same was made partial judgment of the Court on 17/5/2006, in respect of the 2nd Defendant in HON/25/2002(Page 120 of the Records). (The said partial settlement adopt as judgment was marked Exhibit A in the case).

Counsel said that, when Cyprian (who later died and was substituted by 1st Appellant) was served with the writ of summons in HON/29/2006, he and other

defendants entered a conditional appearance to defend the Suit; that the Plaintiffs in HON/29/2006 filed their Statement of claim on 7/12/06. But on 1/3/07, the 1st Plaintiff, Chief Hillary Iwuoha, filed on his behalf notice of discontinuation of the Suit No. HON/29/2006, on the ground that the Plaintiffs had settled their case with the Defendants (Page 20 of the extra Pages of the Records of Appeal).

He said that, the Respondent, without filing a motion to recommence the Suit – HON/29/2006, filed his deposition and that of his witness on 9/10/2009, and also filed on that date a document titled “Copies of every document to be relied on at the trial”, but neglected to file the copies of the said documents, as claimed; Counsel said that, without the leave of Court, the Respondent filed on Amended Statement of Claim in the Suit No. HON/29/2006, on 24/5/2011, and proceeded to use the same to purport to prove his case, subsequently, and the trial Court glossed overall that – the fact that the said Amended Statement of Claim was not filed with the leave of Court and that they (Appellants) filed no defence.

Counsel said that when the

consolidated Suits came up for hearing on 15/5/2012, Appellants were not in Court, but Chief R.C. Ogu (Counsel for Plaintiff in HON/25/2002 and 1st Defendant HON/29/2006) told the Court that he could not account for the where-about of his Client. Consequently, the Court adjourned the case to 28/5/2012 and warned that if Appellants failed to be in Court on that day, she would proceed with the hearing of the consolidated cases, by closing the case of the Plaintiff and allow the defendant to prove his case. Counsel said the Suit No. HON/29/2006, was heard on 15/4/2013, behind the Appellants and their Counsel; that was when the Respondent adopted his deposition, filed on 24/5/2011, and tendered documents; he said that on 25/10/2013, the learned trial Judge delivered judgment in favour of the Respondent, and declared the Respondent to be entitled to the grant of the Customary Right of Occupancy over the land in dispute (Pages 247 – 249 of the Records).

The Respondent on his part said the trial Court was right to allow them (Respondent) to prove his case, as Appellants had filed no defence and would not come to Court to defend the Suit; that the Respondent

was therefore entitled to judgment, as delivered by the trial Court.

Dissatisfied with the decision, Appellants filed this Appeal, with the leave of this Court, granted on 7/12/2016. They filed the Notice of Appeal on 15/12/16, and Amended Notice of Appeal on 11/2/2020. They filed their Brief of Argument on the said 11/2/2020 and distilled 6 Issues for the determination of the Appeal, as follows:
(1) Whether the Appellants were given fair hearing by the learned trial Judge and if not whether the failure to do so resulted in miscarriage of justice. (Ground 1)
(2) Whether the learned trial Judge was right to have declared that the Respondent was entitled to the grant of Customary Right of Occupancy of the land in dispute, whereas he neither filed a survey plan of the land in dispute, nor did he call any boundary neighbor to support his claim. (Ground 2)
(3) Whether the learned trial Judge was right to have declared the Respondent to be entitled to the Customary Right of Occupancy of the land in dispute, notwithstanding the fact that the late Cyprian Esogwa had exercised an unchallenged act of ownership and possession over a portion of the

same land, by selling it to the 2nd Defendant and which sale was ratified in the judgment of the High Court dated 3/5/2011 (sic) (Ground 3)
(4) Whether the learned trial Judge was right in declaring the Respondent as being entitled to the Customary Right of the land in dispute and in making an order of perpetual injunction restraining the Appellants from entering the said land, notwithstanding the fact that the respondent admitted in his deposition that the 2nd and 3rd Appellants are members of his Umuokwaraugo family and that their family lands have not been shared (Ground 4)
(5) Whether the judgment of the learned trial Judge demonstrated, in full, a dispassionate consideration of the issues properly raised and heard and reflects the result of such an exercise, and if not, whether the failure to do so resulted in a miscarriage of justice. (Ground 5)
(6) Whether Suit No. HON/29/2006 is an abuse of Court process in view of the fact that the Plaintiff in the said Suit (who is now the Respondent) had filed a Counter claim in Suit No. HON/25/2002, against the same defendant (who is now 1st Appellant) claiming the same reliefs as he is claiming in

Suit No. HON/29/2006. (Ground 6).

The Respondent filed his brief on 14/02/2020 and adopted the Issues raised by the Appellants, but noted that Appellants raised their 6 Issues for the determination of the Appeal, from five Grounds of Appeal. Respondent also filed what he called a preliminary objection to the Appeal, which he also argued in his brief – pages 4 – 5 thereof.

In their reaction to the Respondent’s brief and his “preliminary objection”, Appellants filed a Reply brief on 27/3/2020, which was deemed duly filed on 21/5/2020, the day this Appeal was heard.

PRELIMINARY OBJECTION
The Respondent’s preliminary objection was actually a quarrel against ground 3 of the Appeal, namely: that “Ground three of the Appellants’ Grounds of Appeal does not relate to nor arise from the Suit – HON/29/2006 – the Judgment in (sic) which is on appeal herein, nor does it relate to the said judgment appealed against.”

It has been stated, several times, in leading Court decisions, that raising an objection against one or more grounds of appeal, in an appeal, does not translate to a

preliminary objection against the hearing of the Appeal, as envisaged by Order 10 Rule 1 of the Court of Appeal Rules, 2016; that is, a Preliminary Objection is properly so called, when the determination of the same can terminate the Appeal, in limine, without the need to determine it on the merits. But an objection to a given ground of appeal will only affect the said ground of the Appeal, if successful, and the remaining grounds remain to give life to the Appeal, to be heard on the merits. See Alaribe Vs Okwuonu (2015) LPELR – 24297 (CA);Osuji Vs The State (2016) LPELR – 40042 (CA); Nwaolisah Vs Nwabufoh (2011) 14 NWLR (Pt.1268) 600; Mbata Vs Umezurike & Ors (2019) LPELR – 47331 (CA).
See alsoAdejumo Vs Olawaiye (2014) NWLR (Pt.1421) 252 at 265, where the Supreme Court said:
“A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal… Where a preliminary objection would not be the appropriate process to object or show to the Court defects in the processes filed before it, a motion on notice filed complaining about the grounds or defect would suffice.”

The above decision was applied in the case ofOnuegbu & Ors Vs Gov., of Imo State &Ors (2015) LPELR – 25968 CA.

I have, however, taken a close look at the complaint raised against the ground 3 of the Appeal, and can find no substance in the objection by the Respondent as it is obvious, the two cases (HON/25/2002 and HON/29/2006) were consolidated and tried together by the Court; and there is also the issue of settlement of HON/25/2002 with the 2nd Appellant (2nd Defendant in HON/25/2002) which fact was acknowledged in the judgment appealed against, as shown on page 248 of the Records, wherein the trial Court noted, as follows:
“Briefly, the case of the Claimant is that he is the head of Nwosu Oleru family of Umuokwaraugo, Umunabala Umueshie, Village Abajah, in Nwangele L.G.A of Imo State. He said the land in dispute is known as alaIkpa and it is situate at Umunabala kindred… He said the land has been their inheritance since time immemorial, having devolved on them from their ancestor, Nabala who had six sons. He is the first son, while the 2nd and 3rd defendants are from the lineage of the last son.

He said that while the Suit was still pending, the Court granted an Order of injunction on the land, the 2nd and 3rd defendants negotiated with the 1st defendants (sic) to purchase the land and caused amicable settlement to be filed. He said he was not aware of the said settlement by Elder Hillary Iwuoha…” (Underlining mine)

With the above excerpt, it cannot be correct to say that the 3rd ground of Appeal does not arise from or relate to the judgment appealed against. The said ground 3 stated, as follows (without the particulars thereof):
“The learned trial Judge erred in law when she granted a Right of Occupancy of the land in dispute to the Claimant, without excising the portion of the same land in dispute in respect of which the same honourable High Court of Nkwere/Isu Judicial Division, presided over by her predecessor, P.C. Ikpeama J., had given judgment in Suit No. HON/25/2002 on 17th May, 2006, in favour of the 2nd and 3rd defendants and thereby created a serious clash of right and interest among the parties over the same land in dispute.”

I therefore dismiss the alleged preliminary objection and affirm the

competence of the ground 3 of the Appeal.

I should also note that Appellant raised 6 grounds of Appeal, not 5 (as per their Amended Notice and Grounds of Appeal, filed on 11/2/2020). The Amended Notice of Appeal was filed pursuant to leave of this Court granted on 3/2/2020. The Respondent’s Counsel was therefore wrong to say that Appellants raised 6 Issues for determination of the Appeal, from 5 grounds of Appeal.

Arguing the Appeal, on 21/5/2020, Learned Senior Counsel for Appellants, Chief R.C. Ogu, on Issue 1, said Appellants were not in Court on the day the Respondent testified and were not present on the day the Respondent adopted his written address. They were again not present on the day judgment was delivered by the Lower Court and were not represented on any of the dates/days stated above, as they had no notice of the said dates of hearing, adoption of address and judgment. Counsel said he represented the 1st Appellant in the consolidated Suits and had, on 15/5/2012 reported to the trial Court, that he could not account for the where-about of Cyprian (his Client), who was absent in Court on that day; that when the consolidated cases

came up on the next date – 20/11/2012, he (Counsel) applied to be discharged from further appearance, and his application was granted; Counsel said that the trial Court acknowledged this fact in her judgment. Counsel said the trial Court ought to have ordered for hearing notices, to issue to the Claimant in Suit No. HON/25/2002 and the Defendants in HON/29/2006, from the date of Counsel’s withdrawal, to inform them of the next hearing date, personally, since they were not in Court on the date the Counsel for 1st Appellant withdrew from the case; he said that the learned trial Court did not do so, but rather proceeded to hear the case and to deliver her judgment, behind the Appellants. Thus, he said the right of fair hearing of the Appellants was violated, having not given them (Appellants) notice of dates and place of hearing. He relied on the case of Emmanuel Ikeaja Mpam Vs First Bank of Nigeria Plc (2013) ALL FWLR (Pt.674) 129 at 146 – 147, 148; and Alhaji Abdullahi Baba Vs Nigeria Civil Aviation Training Centre & Anor (1991) 5 NWLR (Pt.192) 388, where he listed the factors to be considered in determining whether (or not) there was fair hearing:

(1) Has the person to be affected by the outcome of the case, been present all through the proceedings to hear all the evidence against him?
(2) Has he been given the right to cross-examine witnesses who gave evidence against him?
(3) Has he been granted access to and the opportunity to read all the documents tendered in evidence at the hearing and
(4) Has he been given opportunity to know the case he has to meet at the hearing, and to adequately prepare for his defence?

Counsel also relied on the case of Achuzia Vs Ogbomah (2016) ALL FWLR (Pt. 830) 1261 at 1291 – 1280, and urged us to resolve the first Issue for Appellants. He relied further on Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, on right to fair hearing.

On Issue 2, Counsel urged us to answer in the negative, saying that, having sought declaration of title to land in HON/29/2006, the Respondent had a duty to prove the exact area of the land he was claiming, and that required a Survey Plan and/or clear evidence to identify the said land. He relied on decided cases, including FBN Plc Vs Okelewu (2013) NWLR

(Pt.1372) 435; Otanma Vs Youdubagha (2006) 2 NWLR (Pt. 964) SC; Gbadamosi Vs Dairo (2007) ALL FWLR (Pt. 357) 812. Counsel said the Respondent failed to discharge this very important duty, as he did not file a Survey Plan and did not call any witness of boundary neighbors to the land, especially in view of the partial judgment for 2nd Appellant in HON/25/2002.

On Issue 3, Counsel answered in the negative, and said that the Respondent was the only one who testified in the case. He referred us to his (Respondent) statement on oath, on pages 196 – 201 of the Records, which the Respondent adopted on 15/4/2012. Counsel referred us particularly to paragraphs 34, 35, 41, 42, 43, 48 and 49 of the said Statement on Oath, which he (Counsel) said negated the judgment given by the trial Court; that those paragraphs acknowledged the sale of part of the land in dispute to the 2nd and 3rd Defendants in this case – HON/29/2006, for which amicable settlement was reached by the parties in HON/25/2002 (the Respondent being Plaintiff in HON/29/2006 and 1st Defendant in HON/25/2002, while the 2nd Defendant in HON/25/2002,(who settled with 1st Appellant) was also the

2nd Defendant in HON/25/2002!) And the settlement had been made partial judgment in the Suit HON/25/2002.

Counsel said the trial Judge cannot, therefore, correctly give a judgment, declaring Respondent and late Cyprian Esogwa (who was substituted by his son as 1st Appellant) as simultaneous owners of the land in dispute, as that is not tenable; as joint possession of land, by two adverse claimants, is not known to law. Counsel said that there is only one parcel of land in dispute in this case, which the Respondent calls AlaIkpa and Appellants call UHU Umuike; that Cyprian Esogwa (1st Appellant) is not from the family of the Respondent, and so a rival claimants; that 2nd and 3rd Appellants, who are of the family of the Respondent, had acknowledged the ownership of the said Cyprian Esogwa, and so bought the portion of land from Cyprian (as shown in the amicable settlement and partial judgment of the Court in HON/25/2002). He said that decision in HON/25/2002 was subsisting at the time the trial Court purportedly gave the judgment to Respondent in HON/29/2006!

On Issue 4, whether the trial Court, could, in the circumstances, declare the Respondent

owner of the land in Suit No. HON/29/2006, notwithstanding the rights of the 2nd and 3rd Defendants (now Appellants) (as per the transaction/settlement in HON/25/2002), Counsel answered in the negative. He referred again to some paragraphs of the Statement on Oath of the Respondent, who had acknowledged that 2nd and 3rd Appellants were members of his (Respondent’s) family, and were originally with him (in HON/25/2002) “before they cross carpeted” to the other side. In paragraphs 13, 29, 34, 40 and 48 of the Statement on Oath, the Respondent had averred:
(13) The second and third defendants in Suit No. HON/29/2006 are from Okwaraugo lineage and they were originally with us before they cross-carpeted.
(29) That the original first Claimant in Suit No. HON/29/2006, Elder Hillary Iwuoha is one of the sons of Iwuoha Oleru and the overall head of Umuokwaraugo, following the death of Thomas Iwuoha, who died on 18/1/2006 at the age of 116 years.
(34) That on or about the month of March, 2006 the Claimant, and others in Suit No. HON/25/2002 broke into the land in dispute and negotiated the sale by Claimant to the second and third defendants

in HON/29/2006, who bought the land from Claimant without my leave and or permission.
(40) That in the year 2000, Umuokwaraugo family allocated part of this AlaIkpa in dispute for building purposes to Eugene Iwuoha, the son of Sylvanus Iwuoha the 2nd Defendant in HON/29/2006, after the second defendant pleaded with my family with a carton of star beer and two gallons of palm wine.
(48) That when the second Defendant in HON/29/2006 told Umuokwaraugo family that he bought part of the land in dispute from the Claimant, (in HON/25/2002) Umuokwaraugo family summoned the second defendant to explain how he bought family property from the claimant, a stranger in the family.”

In paragraphs 49, 50 and 51 of the said Statement on Oath, of the Respondent, he further admitted that the 2nd Defendant (2nd Appellant), who is one of sons of Iwuoha Oleru, told their Umuokwaraugo family that he could not wait for the outcome of the case in HON/25/2002, and so had to buy the land from the Claimant in HON/25/2002, as the Claimant was harassing him and intimidating him over the building project.

Counsel submitted that even by the Respondents said

averments/evidence, the Court’s judgment in HON/29/2006 was incompetent and undeserving of the declaration made; that by that evidence, the ownership of the Claimant in HON/25/2002 was acknowledged by the Respondent and his family members, including the 2nd and 3rd Defendants (also Appellants) in HON/29/2006.

Counsel further said that the original 1st Respondent, Hillary Iwuoha (1st Claimant in HON/29/2006) had withdrawn the Suit, and that marked the end of the case. He referred us to page 20 of the Records – the extra pages.

On Issue 5, Counsel said the judgment occasioned a miscarriage of justice to the Appellants, as it failed to demonstrate, in full, a dispassionate consideration of the Issues properly raised and heard. He relied on Ojogbue & Anor Vs Nnubia & Ors (1972) ALL NLR 664; Adeyemo Vs Arokopo (1988) 2 NWLR (Pt.79) 703; Duru & Anor Vs Nwosu & Ors (1989) 4 NWLR (Pt.113) 24. Counsel said the judgment by the trial Court was not a good judgment, as the trial Court forgot that two Suits (HON/25/2002 and HON/29/2006) were consolidated and tried, together, and the judgment did not reflect on both Suits, and did not

consider the evidence, even as given by the Respondent!

On Issue 6, Counsel said the Suit HON/29/2006 was an abuse of the Court process, in view of the fact that the Respondent (who was the Claimant in the Suit) had earlier Counter-claimed (as Defendant) in HON/25/2002. He referred us to the Statement of defence dated 7/11/2005, filed on 9/11/2005 in HON/25/2002 (Page 105 of the Records of Appeal).

Counsel said the claims in HON/29/2006, by the Respondent, was exactly what he counter-claimed for in HON/25/2002. He relied on the case of Saraki Vs Kotoye (1992) 9 NWLR (Pt.264) 156, on what constitutes abuse of the Court process. He also relied on Babalola Vs Rufus (2010) ALL FLWR (Pt.515) 309, and urged us to hold that the Suit No. HON/29/2006 was an abuse of the Court process. He urged us to resolve all the Issues for Appellants and allow the Appeal.

The Senior Counsel, for the Respondent, Chidi B. Nworka Esq, (who settled the brief of the Respondent), on Issue one, agreed that the rule of fair hearing is fundamental and cannot be jettisoned, but argued that there cannot be question of breach of fair hearing in a situation where a party has not

satisfied the condition required to be heard; he said that the right to be heard, having not been earned, cannot be exercised and there cannot be any question of breach of a non-existing right. He relied on the case of Chime Vs Ude (1996) 7 SCNJ 81 at 91.

Counsel said Appellants were served with the writ of summons and statement of claim, but that, in the exercise of their inalienable right they elected not to react to the processes, served on them and filed no statement of defence; that, that alone entitled the Respondent to obtain judgment in default of pleading, pursuant to Order 20 Rule 6 of the Imo State High Court (Civil Procedure) Rules, 2017; he said that Appellants were not entitled to service of any further process and notice and were not entitled to complain. He relied on Johnson Ltd Vs Charles Moh Ltd (2002) 10 SCNJ 1 at 11.

Counsel argued that failure to deny or traverse facts pleaded in a statement of claim tantamounts to same being admitted by the defendant, and the Plaintiff would bear no burden of proof of same. He relied on Temile Vs Awani (2001) 8 SCNJ 190 at 206; Okposin Vs Assam (2005) 7 SCNJ 442; Honika Sawmill Vs HOFF (1994) 2 SCNJ.

That being the case, Counsel said the Respondent in this case had nothing to prove, and there was no need for any hearing, save for declaration of title. But in this case, Counsel said, the Respondent had to lead evidence, in view of the fact that a declaration of title cannot be granted upon admissions, alone.

He submitted that on 15/2/2012, after it became clear to the trial Court, that Appellants persistently refused appear to do the case, it granted one last adjournment to and ruled that should they still fail, the Respondent would be allowed to proof his case; he said Appellants’ Counsel, Chief R.C. Ogu, was in Court on that date; that on the next adjourned date, 2/10/2012, due to Appellants’ absence, their Suit, HON/25/2002 was deconsolidated from this one – HON/29/2006, and the trial Court directed the Respondent to prove his case (HON/29/2006) on the next adjournment date; that on that date 2/10/2012, Appellants’ Counsel urged the Court to issue hearing notice on his client and his request was granted. Counsel referred us to page 57 of what he called proper Records. He said that on 20/11/2012, when the Respondent was

to prove his case, Appellants’ Counsel, Chief R.C. Ogu, applied to withdraw from the case and was discharged; that subsequent to all the above, the Respondent gave his evidence and tendered requisite documents to prove his case. Counsel added that the address of the Respondent’s Counsel was served on the Appellants, but they failed to react; that the Court rightly proceeded to give judgment to Respondent; that there must be a limit to indulgence by the Court. Counsel relied on Petroleum (Special) Trust Fund Vs I.F.M.S. Ltd (2003) FWLR (Pt.155) 738; A.G. Rivers Vs Ude (2007) ALL FWLR (Pt.347) 598.

Counsel argued that all the time, Appellants’ Counsel had notice of hearing dates, and that was why he appeared; that it will be preposterous for them to be allowed, under the circumstances, to claim otherwise. He said that the Court cannot force a party to give evidence, and relied on Obmiami Bricks Vs ACB (1992) 3 SCNJ 1 at 38; Balogun Vs UBA (1992) 7 SCNJ (Pt.1) 61 at 66. Counsel said it is strange that the same Appellants’ Counsel, who appeared for them at the Lower Court and chose to abandon the proceeding, is also the one now

conducting this Appeal and arguing that his clients were not heard! Counsel urged us to resolve against Appellants.

On Issues 2, 4 and 5, which the Senior Counsel argued, together, he wondered whether any effort should be expended on these issues. He said that Appellants are not in any position to challenge the proceedings and procedure in the Suit before the trial Court, as they led no evidence and are bound by the evidence led by the Respondent. He relied onIbekendu Vs Ike (1993) 7 SCNJ (Pt.1) 50 a 63. He argued that Appellants filed no response to suit of the Respondent; did not appear at the hearing of the case and did not participate in same, despite the service of several hearing notices on them; that the Respondent gave evidence, in line with the pleading he made, adopted his statement on oath and tendered exhibits. He said that the deposition of Respondent provided all the answers which may be said to have been raised by Appellants in this Appeal, and adequately explained what transpired, with regard to the terms of settlement, filed by the erstwhile 1st Claimant and how the trial Court resolved same. He said that, that evidence was not

challenged; that Appellant cannot be heard to complain at this stage. He urged us to resolve the Issues against the Appellants and to dismiss the Appeal.

In his Reply Brief, Counsel for Appellants said it is not the law that if a party does not react to the Writ of Summons and Statement of claim in a civil suit, he is not entitled to the service of any other process or hearing notice in the proceedings.

On the alleged service of the Address of Respondent on Appellants, Counsel said the affidavit of service thereof (on pages 49 and 50 of the extra pages of the Records) shows the same were served on other persons, not the Appellants (one was served on the wife of 2nd Appellant, who said the husband was seriously sick, and the other, served on the brother of 1st Appellant!)

RESOLUTION OF THE ISSUES
I shall consider this Appeal on the 6 (six) Issues distilled by the Appellants, and shall take the Issues 1 and 6 separately and Issues 2, 3, 4 and 5, together. The Issue 6 being whether the Suit No. HON/29/2006 was not an abuse of the Court process, since the Respondent had earlier raised the reliefs therein in the Counter-claim to HON/25/2002,

and after the Respondent had filed a Notice of discontinuance of the Suit – HON/29/2006?

Was the Appellants granted fair hearing at the trial that resulted in the decision of the trial Court?

The Learned Senior Counsel for Respondent, Chidi B. Nworka Esq, had argued that because Appellant did not file any defence in the case and did not attend Court for the trial, though their lawyer did and later withdrew, with the leave of Court, that Appellants were not entitled to service of any process or hearing notice, again, since they had opted not to be part of the case, by not filing pleadings in the case.

With due respect to the Learned Senior Counsel, that is a misleading statement of the law. Even where a defendant fails to file a defence in a case, particularly one seeking declaratory reliefs, that does not entitle the Plaintiff (and the Court) to hear and dispose of the case, behind the Defendant, who must be served with all the processes filed by the Plaintiff, and given notice of the hearing of the case, religiously, until the case is disposed of, to afford him the opportunity to take part in the trial and be heard, if he so elects.

See Ihedioha & Anor Vs Okorocha & Ors (2015) LPELR – 40837 (SC).
In the case of EFCC Vs Okemuo & Ors (2018) LPELR – 45548 (CA), it was held:
“In the absence of any evidence of the service of the motion on notice and the requisite hearing notices, all the efforts made by both parties and the Lower Court came to naught and amounted to a nullity…” Per Tukur JCA
In Kangnaan Vs Kangnaan (2019) LPELR – 46502 (CA), this Court held:
“It is trite that failure to serve process, where required… is a failure which goes to the roots of the Suit. It is a fundamental vice, because the service of such process is a condition precedent to exercise of jurisdiction by the Court… See Kalu Mark & Anor Vs Gabriel Eke (2004) 5 NWLR (Pt. 865) 54; Adeigbe & Anor Vs Kusimo & Anor (1965) NMLR 284; Skenconsult Nig Ltd Vs Ukey (1981) 1 SC 6; NBN Ltd Vs Guthrie Nig Ltd & Anor (1993) 3 NWLR (Pt.284) 643; Chief J. OlorunYolemi and Anor Vs Mrs. Helen Akhagbe (2010) 8 NWLR (Pt.1195) 48; Estate of late Chief Humphrey I.S. Idisi Vs ECODRIL Nig Ltd & Ors (2016) LPELR – 40438.” Per Oniyangi JCA

The authorities are replete on this, especially with regard to the need to serve hearing notice on parties, which must stipulate when and where the case would be heard, to enable the parties to prepare and attend Court. See Abidogun Vs Ogunwale (2019) LPELR – 48202 (CA), which relied on the Supreme Court decision in the case of ENI Consortium Ltd Vs Shambilat Shelter Nig Ltd (2018) LPELR – 43902 SC, to the effect that:
“Serving of hearing notice on appellant is a pre-condition to the exercise of jurisdiction of the Court below, as it is basic to the exercise of jurisdiction of the Court. The flipside of the coin is that non-service of hearing notice therefore robs the Court of jurisdiction to hear and determine the matter and any order made against the party who should have been served with the hearing notice, becomes null and void.” Per Peter-Odili JSC.
It remains part of the wisdom of Court, that any time a party is not in Court, the Court must order for issuance of fresh hearing notice on him, and on the next adjourned date, the Court must satisfy itself that the hearing notice had been served on the

party, who was absent at the last date the matter came up. See Abidogun Vs Ogunwale (Supra); and Skye Bank Plc Vs Uwaleke (2018) LPELR – 45016 (CA), where my Lord, Lokulo-Sodipe JCA, said:
“When a matter comes up before a trial Court, it is its duty to fully satisfy (itself) that a party to the case was duly served and is aware that the matter is coming up before the Court that day. It is not for the trial Court to assume that the party is aware of the Suit when, in the first place, it had not issued any hearing notice to the party. The trial Judge is entitled to look into the Court’s record, to satisfy himself whether there is proof of service of any process on the parties or their legal representatives before embarking on several adjournments, which can lead to the unjust dismissal of the appellant’s case.”
The above admonition appears not to have been heeded by the Learned Trial Judge in this case. There is evidence that the Learned Counsel for the 1st Defendant, in HON/29/2006,Chief R.C. Ogu, (who also handles this Appeal for the same party – as Appellants), applied to trial Court on 20/11/2012, to be

discharged, when he complained to the Court that he could not account for the where-about of his client. The Court granted that prayer and promptly discharged him (see page 247 of the Records of Appeal) where the trial Court said:
“The defendants never filed any process in defence of their Suit. On the said adjourned date which was on 20/11/2012, Chief R.C. OguEsq (sic) for the defendants applied to be discharged from the Suit and his application was granted.”
There is no indication that after the discharge of the 1st Defendant’s Counsel on that date, 20/11/2012, that the Court made any effort to serve the Defendants, personally, with any further notice of hearing of the Suit. There is nothing to show that the Court ordered for fresh hearing notice to be issued to them (Defendants) after that, after the withdrawal of Counsel, to qualify the Court to sit on 15/5/13, to take evidence from the Respondent, who testified as CW1.
On that date 15/4/2013, the following proceedings had transpired:
“PARTIES: Parties are absent, except the claimant.
APPEARANCES: I.A. Onoja Esq with C.J. Ibeh Esq for the Claimant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

CW1 elects to speck in Ibo Language. The designated interpreter is the Assistant Registrar of the Court, Miss. Nkeiru Amakulo. No objection by both parties.
CW1 sworn on the Holy Bible and state in Ibo Language. My name is Cornelius Emezie Nwosu. Yes, on 24/5/2011, I deposed and filed my written deposition. I adopt my said deposition and urge the Court to so adopt as my testimony in chief before the Court.
Court: – Deposition of CW1, filed on 24/5/2011 is hereby adopted as CW1 evidence in Chief before the Court.
There are the documents I referred to in deposition.
Court: – As the defendants have decided to stay out of Court, the documents are hereby admitted in evidence as (sic) marked (sic) follows:
(1) Notice of Appeal in Suit No. CC/NG/7/2002 Appeal No. CCA/A/ /2002 EXH ‘A’
(2) Record of Proceeding of 9/10/2002 in Suit No. CC/NG/7/2002 EXH. ‘B’
(3) Record of Proceeding of 26/6/2006 in Suit No. HOW (sic) 25/2002 and HON/122M/2006 EXH. ‘C’
(4) Order of Court in Suit No. HON/25/2002 made of (sic) 17/5/2006 EXH. ‘D’
(5) Terms of Settlement in Suit No. HON/25/2002 made

on 4/3/2006 EXH. ‘E’
End of testimony.
Onoja Esq said it is the case for the Claimant. Written address is hereby ordered, each party have (sic) 21 days.
This Suit is adjourned to 10/6/2013 for adoption of final written address.” (See extra pages 53 – 54 of the Records – counting after the judgment – page)
On the 10/6/2013, parties were absent, but L.E. Njoku Esq., appeared for the Claimant and adopted the claimant’s Address and the case was adjourned to 23/10/2013, for judgment. The Address was re-adopted by Claimant’s Counsel, Elder I.A. Onoja Esq on 25/10/2013 and judgment was delivered same date (25/10/2013). See extra Pages 55 to 59 of the Records.
In each of the above sittings and hearing by the trial Court, it made no Order for hearing notice to be issued on the Appellants; and it made no enquiries whether they (Appellants) were issued with any hearing notice! Even when the CW1 was taken on 15/4/2013, when he adopted his statement on oath, the trial Court did not bother to call for any cross examination, and to adjourn the case for same. The Claimant proceeded to close his case, and

the Court adjourned for address, to be filed by the Claimant!
That, in my opinion, was a flawed, procedural absurdity, which went to the roots of the purported trial. It breached the avowed rules of fair hearing and made nonsense of the entire trial, rendering the same a nullity. The law is trite, that decision of Court founded on trial which denied the adverse party opportunity to be heard is a nullity. See Poroye & Ors Vs Makarfi & Ors (2017) LPELR – 42738 (SC); Alioke Vs Oye & Ors (2018) LPELR – 45153 (SC).

I resolve the Issue one for the Appellants.

The Issue 6, was on the competence of the Suit No. HON/29/2006, filed by the Respondent, after he (Respondent) had raised a Counter-Claim in the Suit No.HON/25/2002, filed by Cyprian Esogwa, against him (Respondent and one other person – Sylvanus Iwuoha, whom the Respondent later joined as 2nd Defendant on HON/29/2006).

I think everything was wrong with this Suit HON/29/2006, filed about 4 years after HON/25/2002, and while the Suit No. HON/25/2002 was still pending, and in which the parties had exchanged pleadings, and the Defendants therein (that is, the

Respondent and 2nd Appellant herein, who were together, then) had raised a Counter- claim.

On page 105 of the Records of Appeal, the Defendants in HON/25/2002, in their joint Statement of Defence, had Counter-claimed, as follows:
(1) Declaration by the Honourable Court that the defendants are entitled to the Customary Right of Occupancy to those pieces or parcels of land known as and called “AlaIkpa”, lying and situate at Umunabala kindred of Umuishie Village Abajah in Nwangele L.G.A of Imo State.
(2) N100,000.00 (One Hundred Thousand Naira) being damages for trespass
(3) Perpetual injunction restraining the Plaintiffs, their agents or privies from further acts of trespass on the land in dispute. Defendants shall rely on the facts in the Statement of defence.
(Signed)
I.A. Onoja Esq.”
(See also Pages 171 – 172 of the Records)

It was the same Onoja, Esq, who filed the Suit No. HON/29/2006 for the Respondent, (initially with Elder Hillary Iwuoha as 1st Plaintiff), against the Appellants (as Defendants) including his relations (Sylvanus Iwuoha and Sylvester Iwuoha (2nd and 3rd Appellants), who were in

his camp in HON/25/2002! I had earlier reproduced the claims/reliefs sought in HON/29/2006, and they are the same as in the Counter-claim, except for the amount of damages in this Suit, raised to N500,000. (See extra pages 1 – 2 of the Records of this Appeal).

I have never seen this type of skewed processes and practice, which clearly gives out the Respondent, and his Counsel, who filed the Suit – HON/29/2006, as desperate prevaricators, in my opinion. The Respondent appears to have embarked on this absurdity in HON/29/2006, simply because the 2nd Defendant in HON/25/2002 abandoned him and the Suit, and made peace with the Plaintiff in HON/25/2002; admitted and acknowledged the right of the said Plaintiff, Cyprian Esogwa, over the land, and opted to buy the land, wherein his son was building on, from the said Plaintiff! He (Respondent) even had the audacity to make oath and state the raw facts of his grievance in his evidence (Statement on oath), as per paragraphs 13, 29, 34, 40 and 48, wherein he stated why he filed the new Suit – HON/29/2006, namely because the relation, Sylvanus Iwuoha and 3rd Appellant broke camp, and acknowledged the

rights of Cyprian (1st Appellant) over the land!

Surprisingly, the same Court, which earlier allowed the exploration of amicable settlement of Suit No. HON/25/2002, and accepted the “Terms of Settlement”, making it a partial judgment in HON/25/2002, on 17/5/2006 (Page 120 of the Records) later turned round to engage in hearing the flawed Suit No. HON/29/2006!

On the page 120 of the Records, the trial Court, presided over by P.C. Ikpeama J. had held:
“Terms of settlement dated 4th March, 2006 is hereby admitted and marked Exhibit ‘A’. In accordance with the terms of settlement in Exhibit ‘A’, judgment is hereby entered in terms of Exhibit ‘A’ in respect of the 2nd Defendant. In spite of the Exhibit A the two parties should maintain the status quo. Adjourned to 20/10/06, 23/10/06 and 25/10/06.”

Of course, that judgment founded on Exhibit A in respect of 2nd Defendant, remains extant, as the Respondent in this case never appealed against it. Rather he adopted same Terms and Order as Exhibits D and E in this case.

At that point, the Learned trial Judge T.E. Chukwuemeka –

Chikeka J., should have seen the mischief in, and hopelessness of the Respondent’s Suit; that it was filed for mischief, to annoy, infuriate and get back at the Appellants, especially the 2nd and 3rd Appellants, who backed out of the Suit No. HON/25/2002 and settled with the Plaintiff, therein. And that, because the Respondent had filed a joint statement of defence and Counter-claim in that case HON/25/2002, with the said 2nd Appellant’s settlement, that settlement had spelt doom for Respondent’s cause in the HON/25/2002!

The text of the Terms of Settlement of HON/25/2002 is carried on pages 114 – 115 of the Records, as follows:
“TERMS OF SETTLEMENT IN SUIT NO. HON/25/2002:
(1) The Plaintiff and 2nd Defendant are blood relations
(2) The 2nd Defendant has approached the Plaintiff for settlement of the above Suit out of Court over and in respect of the portion in dispute where his son is building and the Plaintiff has conceded to settle same with the 2nd Defendant.
(3) The 2nd Defendant has agreed to perform the Customary rites to the Plaintiff over the portion his son is building, now in dispute, the Plaintiff

have (sic) accepted same having been fully performed by the 2nd Defendant.
(4) The Plaintiff hereby these present, crave the Honourable Court’s indulgence to withdraw this action against the 2nd Defendant, this 4th day of March, 2006.
(Signed)
Cyprian Esogwa
In the presence of
(1) Ignatius Igbokwe, Umuike Umunabala Umuishie, Mason
(2) Damian Echefu, Umunabala Umuishie, farmer
(Signed)
2nd Defendant
In the presence of
(1) Boniface E. Anosike,
14 Ogwa Street P.H. businessman
(2) Julius Dike
OkwumeInIsialaUmuozu,
Driver.”

The Suit No.HON/29/2006, having been filed on 3/5/2006, after the decision, on the terms of settlement, reached on 4/3/2006, was therefore a gross abuse of the Court process, in my opinion, as the Counter-claim in the Suit No. HON/25/2002 was still pending, and the reliefs sought in the HON/29/2006 were the same as that of the Counter-claim. Moreover, the Suit No.HON/29/2006, converted the party who fought with Respondent in HON/25/2002 to an adversary in the new case!

A case is said to be an abuse of the Court process, where and when it is filed to

pursue mischief and/or to circumvent the course of justice, or to annoy, irritate, and infuriate the opponent, or to frustrate his case, or ridicule the Court, among other unsalutory reasons. See the case of Globe Motor Holdings Ltd Vs Honda Motor Co. Ltd (1998) 5 NWLR (Pt.550) 373 at 381, where the Supreme Court said:
“An instance of such (abuse)… is in the form of vexations and oppressive actions… when an action is instituted deliberately to circumvent the course of justice and bring the judicial process into ridicule and contempt… Any action or course of conduct that is seen designed to introduce anarchy into the judicial system must be dealt with appropriately.”
See also Onwueme & Anor Vs Customary Court Mbawsi & Ors (2018) LPELR – 44474 (CA), which adopted the above position of law.
In Edjerode Vs Ikine (2001) LPELR – 1479 SC, the Supreme Court held:
“The law is that abuse of Court Process in regard to multiple actions between the same parties in the same subject matter, may arise when a party improperly uses judicial process to the irritation, annoyance and harassment of his

opponent, not only in respect of the same subject matter but also in respect of the same issues in the other actions.”
See also the case of Unamka Vs Ugochukwu & Ors (2019) LPELR – 47032 CA; Julius Berger Nig. Plc Vs Ugo (2020) LPELR – 49544 (CA); Okafor Vs A.G. Anambra State (1991) 6 NWLR (Pt.200) 659; Saraki Vs Kotoye (1992) 9 NWLR (Pt.264) 156; Nnolim Vs Nnolim (2017) LPELR – 41642 CA; Nwosu Vs PDP &Ors (2018) LPELR – 44386 SC.
In that recent case of Julius Berger Nig. Plc Vs Ugo (supra), the Appellant had filed another Suit, wherein they tried to introduce a fresh issue of fraud, to defeat an existing judgment of Court in another case decided for the Respondent and against the Appellant over the same subject matter and issues. This Court held:
The above shows that the attempt by Appellants to introduce fresh issues, alleging fraud and forgery by the Respondents to obtain the judgment in HOW/581/2007, was resisted by the Respondent, and refused by the Court of Appeal, especially as Appellants, in their pleadings at the trial Court in HOW/581/2007, did not plead the alleged fraud/forgery. See the Ruling

of 28/3/2013 in CA/OW/146/2010. Having therefore failed to plead the alleged fraud/forgery in their statement of defence in HOW/581/2007, and the case adjudged in favour of the Respondent, and Appellants having also failed in their attempt to invoke/introduce the alleged fraud/forgery at appeal level, to impeach the said judgment or to manipulate the legal process (by use of the police to charge the Respondent for fraud/forgery in Charge No. OW/373C/2011) wrongly, Appellants, in my view, was embarking on gross abuse of the judicial process, as the trial Court held, when they took out this suit (HOW/8O6/2017), seeking “declaration that the judgment… in suit No. HOW/581/2007, delivered by Honourable Justice N.B. Ukoha on October 26, 2009, was obtained by fraud (and) An order setting aside the judgment… for having been obtained by fraud.”
It is more so, and in my view, a demonstration of grass impunity and mischief by Appellants and their Counsel, to adopt this strange procedure, after the unsuccessful attempt to introduce that line of evidence of fraud/forgery at Appeal stage into the suit, failed, as per the Ruling of this Court

in CA/OW/146/2010, delivered on 28/3/2013! Appellant never appealed against that Ruling! Also the attempt to implicate the Respondent in the Magistrate’s Court in Charge No. OW.373C/2011 failed, being adjudged abuse of the Court process (Page 686 of the Records). And the substantive Appeal in CA/OW/146/2010, also failed, as the Respondent’s judgment in HOW/581/2007 was upheld and affirmed!
Appellants are currently in the Supreme Court, on Appeal, against the said decision of this Court, reached on 5/2/15 affirming the rights of the Respondent in the said suit No. HOW/581/2007. But rather than pursue that further appeal at the Supreme Court and/or wait for the determination of same, Appellants elected to file this fresh action (HOW/806/2017), over seven years after taking the option of appeal to set aside the judgment in HOW/581/2007, to impeach the same judgment of the trial Court in HOW/581/2007, determined since 2009!
I lack appropriate words to describe the depth of the depravity, impunity and abuse of the Court process, displayed by Appellants and their Counsel in this case! No lawyer worth his name should engage in this type of

practice, which appears as a deliberate act of mischief to frustrate, annoy and oppress a successful party in litigation, pretending to pursue a Court process.”

This case at hand appears to be in the category of the above case of Julius Berger Plc Vs Ugo (Supra).

It is also on record, see extra page 20 of the Record, that the Respondent had filed notice of discontinuance of the Suit No. HON/29/2006, on 1/3/07, and the same was granted on 29/10/08. I cannot see when or how the said Suit, which had been discontinued, was relisted, or re-filed, to warrant it being heard. Once a notice of discontinuance is filed in a Suit, the Suit ceases to exist. See the Vessel “Saint Roland” & Anor Vs Adefemi Osinloye (1997) LPELR – 3234 (SC); Aderibigbe Vs Akinyemi & Ors (2019) 47880 CA.

I resolve this Issue for the Appellants, too, holding that the Suit No. HON/29/2006 was an abuse of the Court process, and therefore incompetent and ought to have been dismissed. It is hereby dismissed.

Issues 2, 3, 4 and 5:
In the face of my decision, that the Suit No. HON/29/2006 was an abuse of the Court process, and ought to have

been dismissed, I do not think it is necessary to further waste precious judicial time to consider the Issues 2, 3, 4 and 5 again, in detail. But suffice it to say that the handling of this case by the Learned trial Court was, in my opinion, very disappointing, as it opted to hear and determine a Suit, filed in abuse of the Court process; and even when it had been withdrawn on 1/3/2007, as per the order made on 29/10/2008, the trial Court still heard the discontinued Suit, and determined it in favour of the Respondent, when Appellants were not heard or given opportunity to be heard! And when, going by the lone evidence of the Respondent, his claims had been defeated, by reason of the earlier decision of the Court in Suit No. HON/25/2002, held on 17/5/2006 (Page 120 of the Records), wherein the right of the 1st Appellant, over the land in dispute was recognized, affirmed and protected, in part. It was in consequent of that judgment that the Respondent deposed, as evidence in this Case, Suit No. HON/29/2006, as follows:
34) “That on or about the month of March, 2006 the Claimant and others in Suit No. HON/25/2002 broke into the land in dispute and

negotiated the sale by Claimant to the second and third defendants in HON/29/2006, who bought the land from Claimant, without my leave and or permission
40) that in the year 2000, Umuokwaraogu family allocated part of this ‘AlaIkpa’ in dispute for building purposes to Eugene Iwuoha, the son of Sylvanus Iwuoha the 2nd Defendant in HON/29/2006, after the 2nd Defendant pleaded with my family with a carton of beer and 2 gallons of palm wine.
48) that when the second defendant… told Umuokwaraogu family that he bought part of the land in dispute from claimant, Umuokwaraogu family summoned the 2nd defendant to explain how he bought family property from the Claimant.”
The above were obviously evidence and admission against interest, which should have been resolved against the Respondent. See Mohammed Vs APC &Ors (2019) LPELR – 48061 CA, where my Lord, Adefope – Okojie JCA relying on Ali Vs UBA Plc (2014) LPELR – 22635 said:
“It is presumed that no man would declare anything against himself unless it is true…
Thus, a party is entitled to rely on his opponent’s admission as an

admission against interest to defeat his opponent’s claim.”
See also Chief Kolawole Filani Vs Mr. Akinyemi Onipede & Ors (2019) LPELR – 48754 CA; Doherty Vs Sunmonu (2018) LPELR – 46725 and Kamalu Vs Umunna (1997) LPELR – 1657 (SC).

I therefore find merit in this Appeal, and so resolve all the Issues for the Appellants and dismiss the decision of the trial Court, and in fact, dismiss the Suit No. HON/29/2006, for being an abuse of the Court process.

The Respondent shall pay the cost of this Appeal, assessed at Fifty Thousand Naira (N50,000.00) only, to Appellants.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have read in draft the judgment just delivered by my learned brother HON. JUSTICE ITA GEORGE MBABA, JCA and I completely agree with his reasoning and conclusions. I abide by the orders made in the lead judgment.

Appearances:

CHIEF R.C. OGU For Appellant(s)

CHIDI B. NWORKA, ESQ., with him, D.C. EZEKWERE For Respondent(s)