ETINYIN J. L. E. DUKE (FOR AND ON BEHALF OF IKOT EDEM ODO VILLAGE) V. CHIEF E. O. EPHRAIM & ANOR
(2018)LCN/12059(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of January, 2018
CA/C/206/2012
RATIO
INTERPRETATION: THE DOCTRINE OF FUNCTUS OFFICIO
“It is a trite fundamental doctrine, that once a Court has given a final decision on any matter before it, it becomes functus officio. Thus, the Court is precluded from reviewing or varying the term of the judgment or order given, apart from the permissible correction of clerical mistakes or accidental slip. This principle has been enunciated in a plethora of authorities. See NIGERIAN ARMY VS. IYELA [2008] 7 – 12 SC 35; [2008] LPELR – 2014 [SC]; INTERCONTRACTORS NIG. LTD. VS. UACN LTD [1988] 1 NSCC 737 @ 752; BANK OF WEST AFRICA VS. NIPC LTD. [1962] LLR 31; OLAYINKA VS. ELUSANMI [1971] 1 NWLR 227; DINGYADI VS. INEC [2011] ALL FWLR [pt.581] 1462.” PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
CHIEF (MAJOR) G. O. O. DUKE (RTD)
[suing by ATTORNEY CHIEF (AIR COMMODORE J.O.O. DUKE (RTD)] Appellant(s)
AND
1. ADMINISTRATOR GENERAL, PUBLIC TRUSTEE
2. ATTORNEY-GENERAL, CROSS RIVER STATE
3. EFFANGA EYO ASUQUO HOGAN Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment):
The appeal is against the judgment of the Cross River State High Court holden at Calabar Judicial Division, delivered on October 17, 2011 in suit No.HC/53/2010. By the said judgment, the Court below, coram Okoi I. Itam, J. [of blessed memory as he then was), dismissed the Appellant’s suit on ground of being an abuse of process.
BACKGROUND FACTS
On March 23, 2010, the Appellant filed the said suit in the Court below vide a writ of summons seeking some declaratory reliefs against the Respondents. By the statement of claim thereof, the Appellant sought against the Respondents the following reliefs:
1. An Order setting aside the judgment order of this Honourable Court as delivered by Hon. Justice E. E. Ita, on the 2nd day of February, 2007 on grounds of fraud and suppression of facts.
2. A Declaration that the claimant is by virtue of parentage and as a beneficiary entitled to the estate of late Chief Okon Ekpo Duke with all the appurtenances thereto situate at and for identification purposes called No.4 Harcourt Street/3 Trenchard Street, Calabar, more particularly delineated and further described in Survey Plan No.IN/3140 with survey beacon stone Nos. SEC17732; EP2060; SEC 17734; SEC 17735; SEC17736; SED266; SED265; SEC17729; SEC17730.
3. A Declaration that slave trade and slavery had long been abolished before 1925 and that an emancipated slave by any means is a human being fully and constitutionally entitled to all privileges of family membership without discrimination.
4. Perpetual injunction restraining the Defendant, their cohorts, privies and or agents from entering, trespassing and or doing anything adverse to the Claimant’s interest respecting the aforementioned land better described in survey plan No.IN/3140 forever.
On the part thereof, the 3rd Respondent [3rd Defendant] promptly filed a Notice of Preliminary objection on July 26, 2010, praying for:
1. An Order that the Plaintiff herein lacks the locus standi, hence the action is incompetent.
2. An order that the fundamental issues in this suit i.e the heritable right and ownership of the estate, No. 4 Harcourt Street/No. 3, Trenchard Street, in Calabar South Local Government Area now before this Honourable Court has been effectively tried and determined in suit No. HC/334/2004 by a Court of competent jurisdiction presided by Hon. Justice E. E. Ita and judgment delivered on 02/02/07 in favour of the 3rd defendant/applicant and this honourable Court is not competent to sit in judgment over the said decision when the said judgment was not a nullity ab initio.
3. The plaintiffs in suit No. HC/334/2004 having lost at the trial High Court, exercised their Constitutional right of appeal and appealed to the Court of Appeal (Calabar Division) in Appeal No.CA/C/143/07 and also lost and the plaintiff has now belatedly appealed to the Supreme Court and the power of judicial review under the Nigeria Legal System is only exercisable by the Appellate Courts.
4. An order that this suit as presently constituted is monumentally an abuse of the Court process and that same should be dismissed.
Issues were joined on the 3rd Respondent’s [3rd Defendant?s] notice of preliminary objection. On November 15, 2010, the 3rd Respondent moved the preliminary objection. Parties adopted their respective written addresses.
Eventually, the vexed judgment was delivered on the said October 17, 2011 by the Court below to the conclusive effect:
In my humble conclusion, I entirely agree with the objection that this instant suit is an ingenuous attempt to re-litigate a settled matter and therefore an abuse process.
In the event, the instant suit ought to be and is accordingly hereby firmly dismissed with N5,000.00 costs each to 1st and 2nd defendants jointly and to the 3rd defendant separately.
ORDER: Case dismissed with costs.
The appeal having been entered on September 27, 2012, the parties proceeded to file their respective briefs of argument. The Appellant’s brief filed on 16/01/15, spans a total of 9 pages. At pages 1-2 of the said brief, three issues have been couched:
(1) Whether the Lower Court was justified in resolving the issue of suit No. HC/334/2004, having been obtained by fraud without hearing on merit and/or affording the Appellant the opportunity to lead oral/Viva voce evidence.
(2) Whether the matter as instituted by the appellant constituted an abuse of Court process.
(3) Whether failing to hear the evidence of the appellant in the circumstances of this case constituted his constitutional right.
The first issue is canvassed at pages 2 – 6 of the brief, to the effect that the Court founded its judgment based upon the principle of estoppels per rem judicata. Further submitted, that the Appellant became aware of the fraud was not specifically determined but founded on speculation, which is not allowed by Section 196 of the Evidence Act, 2011.
It was contended, that fraud should be proved by fresh proceedings. See Sections 64, 128(1) of the Evidence Act, 2011; ADIMORA VS. AJUFO [1988] 3 NWLR [Pt.80] 1 @ 13; SAFETI vs. SAFETI [2007] 2 NWLR [Pt.1017] 61 @ 69 G – H; NWAUKONI vs. BIELONWU [2009] NWLR [pt.1135] 484 @ 601 G-H; et al.
The Court is urged to resolve the first issue in favour of the Appellant.
Both the 2nd and 3rd issues have been canvassed together at pages 6-7 of the brief, to the effect that the Court below ignored the High Court (Civil Procedure) Rules of Cross River State, 2004, which dispensed with demurrer trial proceedings, all parties must file pleadings, after which during pretrial proceedings, issue of res judicata can be raised. See Order 20 Rule 1 of the High Court Rules, 2008; LAWAL vs. AKANDE (2009) 2 NWLR (Pt.1126) 429 @ 452 – 453 E-B; SECTION 173 EVIDENCE ACT, 2011. It was contended that by its ruling the Court below has foreclosed and prevented the Appellant from proving his claims as guaranteed by Section 36, 1999 Constitution. See ENEKWE VS INT. MERCHANT BANK LTD. (2007) 1 MJSC 193 @ 216 G.
The Court is urged to resolve both issues 2 and 3 in favour of the Appellant.
On the whole, the Court is urged to set aside the ruling [Judgment] of the Court below, and send the case back thereto for hearing on the merits.
Contrariwise, the 1st and 2nd Respondents’ Amended Brief was filed on 08/10/15. It spans a total of 7 pages. At page 2 of the brief, a sole issue has been raised:
WHETHER THE COURT BELOW WAS RIGHT TO HOLD THAT SUIT NO. 53/2010 IS AN ABUSE OF COURT PROCESSES?
It is submitted in the main, that the claims in HC/334/2004 and HC/53/2010 were basically the same as they affect the ownership and control of the property in dispute.
Further submitted, that the Court below was right in holding that the suit now on appeal was an abuse of Court process, because the issues in the [said] suit had earlier been dealt with in an earlier suit No. HC/334/04 and CA/C/143/2007. See MAGAJI VS. N.A. [2008] 8 NWLR [pt.1089] 338; EMMA AMANCHUKWU vs. FRN [2009] 8 NWLR [Pt. 2 – 3] SC [pt.1144] 475 SC, et al.
The case of ARE vs. JDPC [2003] 5 MJSC 104 @ 108, was equally cited and relied upon, to the effect that where a Court comes to the conclusion that its process is abused, the proper order [to make] is that of dismissal of the process.
Conclusively, the Court is urged to dismiss the appeal, and affirm the judgment of the Court below.
The 3rd Respondent’s brief was filed on 31/5/16. It spans a total of 28 pages. At pages 1 – 2 thereof, a notice of preliminary objection is raised upon three grounds:
1. That this matter now on appeal was determined on a preliminary objection of abuse of Court process upheld by the trial Court which originates from suit No.HC/334/2004 instituted by appellants against respondents herein, on same issues, subject matter and determined by a Court of competent jurisdiction in favour of 3rd respondent. An appeal No.CA/C/143/2007 against the judgment was dismissed by the appellate Court and a further appeal to the Supreme Court twice as Appeals Nos.SC.207/2010 and SC.307/2012 were struck out. This present appeal, therefore, no matter how craftily dressed and presented under the guise of fraud cannot be brought again before the Court of Appeal for a fresh or further adjudication as this honorable Court has become functus officio.
2. That this appeal is grossly incompetent as the appellant has no locus standi to institute and persecute this appeal being a privy to the donor of the Power of Attorney [1st Appellant herein] and so, he [donee] is bound as the donor to the decisions in suit No.HC/334/2004 of 02/02/2007 and of the Court of Appeal judgment in CA/C/143/2007 of 08/12/2009 affirming the decision of the Lower Court which dismissed the appeal of the donor in favour of the 3rd respondent.
3. That since there is no ground of appeal specifically challenging the judgment in Suit No.HC/334/2004 and of the Court of Appeal judgment in Appeal CA/C/143/2007 affirming it, to be set aside, being appellants principal relief [No.1] page 14 of the record and since the said judgment is a valid, extant and subsisting judgment, therefore, all the arguments in the appellants brief are incompetent and unconstitutional by virtue of Section 240 of the 1999 Constitution of the Federal Republic of Nigeria [as amended].
At page 8 of the brief, three issues have been set out for determination of the preliminary objection:
(1) Whether this honorable Court can entertain and determine this matter a second time when same matter now on appeal which emanated from suit No.HC/334/2004 was dismissed by this Court in Appeal No. CA/C/143/2007 on 8/12/2009 and therefore this Court has become functus officio.
(2) Whether the appellant [donee] of power of Attorney has the locus standi to prosecute this case because as a privy he is bound by the results in Suit No.HC/334/2004 and of the Court of Appeal dismissing same in CA/C/143/2007, and if so, is this appeal not hopelessly incompetent.
(3) Whether the failure of the appellant to specifically challenge that suit No.HC/334/2004 be set aside in any of his Amended Notice of Appeal of 7/11/2012 and as the said suit is a relevant reference point from which this appeal emanates, therefore, are all the arguments thereon in respect of the said suit in appellants Brief of Argument not incompetent and a mere academic exercise?
The first issue of the preliminary objection is canvassed at pages 8 – 13 of the brief, to the effect that the Court below was right to hold that the instant suit is merely a belated and wrongful attempt to re-examine, or reconsider, or rehear the same case between them, after it has been already fully considered, decided and adjudged on its own merits.
Further submitted, that the Court of Appeal cannot now review or sit on appeal on its own judgment in CA/C/143/2007 of 8/12/2009 from Exhibit ‘A’ or enrolled order [p.135]. See NA vs. IYELA [2008] 1 – 12 SC 35 @ 48 – 57, et al.
The Court is urged to resolve the first issue in favour of the 3rd Respondent.
The second issue is canvassed at pages 13 – 15 of the brief, to the effect that it is beyond argument, that the judgment of the Court of Appeal in CA/C/143/2007 dismissing the Appellant’s appeal which arose from the suit No.HC/334/04, which has not been set aside by the Supreme Court, exists forever between the parties and their privies- including the Appellant [Donee of Power of Attorney]. See ODJEVWEDJE VS. ECHANOKPE [1987] 1 NWLR [pt. 52] 633; [1987] 3 SC 47; ROSSEK vs. ACB LTD. [1993] 8 NWLR [pt.312] 382; [1993] 10 SCNJ 20.
The court is urged to resolve the second issue in favour of the 3rd Respondent.
The third issue is canvassed at pages 15 – 17 of the brief, to the effect that it is the Court of Appeal that has jurisdiction to hear the case or any application pertaining thereto and not the Court below that gave the judgment and the res has automatically passed into the custody of the appellate Court in Appeal No. CA/C/143/2007. See Order 4 Rules 10 and 11 of the Court of Appeal 2007 which is in pari material with Order 4 Rules 10 & 11 of the Court of Appeal Rules 2011. See UAC V. MACFOY (1962) AC 150, et al.
The Court is urged to resolve the third issue in favour of the 3rd Respondent.
Conclusively, the Court is urged to dismiss the appeal in its entirety for being vexatious, an abuse of Court process and grossly incompetent, with deserved cost to the 3rd Respondent.
The Appellant’s reply brief to the 1st and 2nd Respondents’ filed on 16/10/15. It spans three pages. By the said reply brief, the Appellant has conclusively urged upon the Court to resolve the issues in favour thereof and allow the appeal. Contrariwise, the Appellant’s response to the 3rd Respondent’s preliminary objection was filed on 08/9/16. It spans a total of nine pages.
On ground 1 of the preliminary objection, it is submitted that on 25/03/13, this Court granted the Appellant’s application to amend his notice of appeal and to deem the Amended notice of Appeal, filed on 07/11/12 as properly filed. That grounds 1, 2 and 3, therein are complaints about suit No.HC/53/2010, herein resolved without viva-voce evidence and on judgment in HC/334/2004, having been obtained by fraud. That the main issue being whether or not suit No. HC/334/2004 was obtained by fraud; which is not an issue in Appeal No. CA/C/143/2007. Ground 1 is allegedly misleading.
On ground 2, it is submitted that the power of Attorney now complained of is the same instrument used to commence suit No.HC/53/2010. See pages 1, 5 and 118 of the Record regarding the summons, the statement of claim and Respondents notice of preliminary objection which talk of lack of locus standi. It is submitted, that the same issue considered during the main trial cannot be raised on appeal.
The Court is urged to dismiss the preliminary objection for being misplaced.
On the 3rd ground of the objection, it is submitted that Appellants have exercised their right by [filing] suit No.HC/53/2010, to show that the judgment in suit No.HC/334/2004, was obtained by fraud. It can only therefore appeal against the judgment suit No.HC/53/2010 and not that of HC/334/2004.
The Court is urged to dismiss the preliminary objection.
In response to the 1st issue of the 3rd Respondent’s preliminary objection, the Appellant submitted that the issue was formulated without recourse to the Amended Notice of Appeal regularized on 25/03/13. That sentiment would not help resolve this matter as expressed in the 3rd Respondent’s brief. And that the cases relied upon are therefore not applicable.
Regarding 2nd issue of the preliminary objection, it is submitted that whether or not the Appellant has necessary locus should be the issue of proper ground of appeal or cross-appeal, and not to be suddenly thrust upon the Appellant clothed in the veil of preliminary objection. That crucial is the fact that the locus of the Appellant [donee] was reflected in the amended notice of appeal by this Court on 25/3/13. See MELWANI VS. FIVE STAR IND. LTD [2002] 3 NWLR [PT.758] 217.
Regarding the 3rd issue of the objection, it is submitted that the Appellant never denied that there was judgment against him in suit No.HC/334/04, which he challenged for having been obtained by fraud in suit No.HC/5312010. Thus, this appeal is against the said suit HC/53/2010. And the Court must confine its decision to the parties and the claim. See LEBILE VS. THE REGISTERED TRUSTEES OF CHERUBIM AND SERAPHIM CHURCH [2003] 2 NWLR [Pt.804] 399.
On the whole, the Court is urged to dismiss the preliminary objection.
DETERMINATION OF THE 3RD RESPONDENT’S
PRELIMINARY OBJECTION
It is a trite law, that where a Respondent intends to rely upon a preliminary objection to the hearing of the appeal, he shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection. And that where the Respondent fails to give the three days mandatory notice to the Appellant, the Court may refuse to entertain the objection or adjourn the hearing thereof at the costs of the Respondent.
See Order 10 Rules 1 and 2 of the Court of Appeal Rules, 2016.
In the instant case, the notice of preliminary objection was incorporated in the 3rd Respondent’s brief of argument filed on 31/05/16. The appeal itself was not heard [argued] until on 17/10/17. Thus, there is every cogent reason to hold the 3rd Respondent’s preliminary objection is within the ambit of the law.
Instructively, it is a trite fundamental doctrine, that a preliminary objection is objectively antithetic to the intendment of determination of an appeal on the merits. In the sense that a preliminary objection crucially tends to forestall and abort the determination of the appeal in limine. Thus, where upheld by the Court, the preliminary objection ultimately results in the termination [aborting] the appeal, in limine. That is to say, it automatically puts an end to the appeal, without necessarily determining the rights of the respective parties thereto on the merits. See ODUNZE vs. NWOSU [2007] 13 NWLR [pt.1050] 1; [2007] ALL FWLR [Pt.379] 1295 @ 1314 – 1315 paragraphs G – B; ANPP vs REC. AKWA IBOM STATE [2008] 8 NWLR [Pt.1090] 453 @ 506 paragraphs E – G; EKPEMUPOLO vs. EDREMODA, CA/B/230/2010, dated 07/07/2014 @ 36.
Hence, I have deemed it most imperative to adopt the three issues formulated by the 3rd Respondent in the brief thereof as apt for the determination of the preliminary objection.
ISSUE NO. 1 OF THE PRELIMINARY OBJECTION
The first issue of the preliminary objection raises the very vexed question of whether or not the Court can entertain and determine this matter a second time when same now on appeal, which emanated from suit No. HC/334/2004, was dismissed by this Court in Appeal No.CA/C/143/2007 on 08/12/2009 and therefore this Court has become functus officio.
It is not at all in doubt, that the Appellant had initially instituted suit No.HC/334/2004 at the High Court, Calabar Judicial Division on 07/10/04 claiming a declaration of title of property known and called No. 4 Harcourt/3 Trenchard Street, Calabar, originally owned by late Chief Okon Ekpo Duke who died intestate in 1925. By the statement of claim thereof, the Appellant sought against the Respondents the following reliefs:
1. A DECLARATION of title to all that piece or parcel of land situate at No. 4 Harcourt Street, Calabar South LGA.
2. A DECLARATION that the defendants are not entitled in law or otherwise to purport to manage or control the properties rightfully belonging to the plaintiffs at No.4 Harcourt Street, Calabar South LGA.
3. AN ORDER OF perpetual injunction restraining the 1st, 2nd and 3rd defendants their agents, privies, assigns, etc. from further entering or trespassing into the aforesaid No. 4 Harcourt Street, Calabar South LGA.
4. AN ORDER declaring the Letters of Administration dated 13th October, 1977 and purportedly granted in favour of the 1st Defendant null, void and of no effect especially as it concerns No. 4 Harcourt Street, Calabar South LGA.
5. AN ORDER declaring as null, void and of no effect the letter of the 1st and 2nd defendants’ dated 13th February 2004 with Reference No.MJ/ADG:1562D/Vol.1/99 to take charge of No. 4 Harcourt Street, Calabar South LGA.
Parties therein filed and exchanged pleadings. The suit proceeded to trial, at the end of which the Court below delivered judgment on 02/02/07. [Pages 83 – 103] of the Record.
The Appellant’s case was dismissed, while the 3rd Respondent’s counter claim succeeded with N1 million [One Million Naira] general damages and costs of N100,000.00 awarded in favour thereof.
The Appellant was dissatisfied with that judgment, thus appealed to the Court of Appeal upon ten grounds in Appeal No.CA/C/143/2007. On 08/12/2009, this Court coram; Kumai Bayang Akaahs, Nwali S. Nguta and Jean Omokri, JJCA, in a unanimous judgment dismissed the Appellant’s appeal to the following conclusive effect:
On the whole, I find no merit in the appeal as all the issues are resolved against the Appellant. Accordingly, the appeal is dismissed, I award N30,000.00 as costs in favour of the 3rd Respondent against the Appellants.
The judgment of this Court in question was duly published and reported by the Nigerian weekly Law Reports as Chief [Major] G.O.O. Duke & Anor vs. Admin. General, Cross River State [2010] 15 NWLR [Pt.1217] 442 – 462; [2011] ALL FWLR [pt.592] 1786 – 1801.
Both the judgment and the enrolled order dismissing the Appellant?s appeal [CA/C/143/2007] in question have been copiously alluded to by the Court below in the vexed judgment thereof: pages 181 – 182 of the Record.
Interestingly, the Appellant’s Notice of Appeal to the Supreme Court against the judgment of this Court in Appeal No.CA/C/143/2007 was withdrawn and struck out by the Apex Court [SC.307/2012] on 30/9/14 vide a motion filed on 02/8/2012 by the Appellants. See page 183 of the Record.
Now, by the suit No.HC/53/2010 in question, the Appellants have sought against the Respondents the following reliefs:
1. An order setting aside the judgment order of this honorable Court as delivered by Hon. Justice E. E. Ita on the 2nd day of February, 2007 on grounds of fraud and suppression of facts.
2. A declaration that the claimant is by virtue parentage of and as a beneficiary entitled to the estate of late Chief Okon Ekpo Duke with all the appurtenances thereto situate at and for identification purposes called No. 4 Harcourt Street/3 Trenchard St. Calabar more particularly delineated and further described in survey plan No.IN/3140 with survey beacon stone Nos.SEC 17732; EP 2060; SEC 17734; SEC 17735; SEC 17736; SED265; SEC 17729; SEC 17730 and SEC 17731.
3. A declaration that slave trade and slavery had long been abolished before 1925 and that an emancipated slave by any means is a human being fully and constitutionally entitled to all privileges of family membership without discrimination.
4. Perpetual injunction restraining the defendant, their cohorts, privies and or agents from entering, trespassing and or doing anything adverse to the claimant’s interest respecting the aforementioned land better described in survey plan No.IN/3140 forever.
It is obvious, from the above, that relief 1 seeks an order to set aside the earlier judgment of the Court below delivered by Ita, J; on 02/02/2007 [in Suit No.HC/334/2004]. Relief 2 seeks a declaration that by virtue of the parentage and as a beneficiary, the claimant [Appellant] is entitled to the estate known as No. 4 Harcourt Street/3 Trenchard Street, Calabar. Relief 3 seeks a declaration that slave trade and slavery had long been abolished. Relief 4 seeks a declaration for perpetual injunction against the Respondents from trespassing into the property in dispute, which the Appellants had already been found to be trespassers in 1961. It was aptly found by this Court in the said judgment [Appeal No.CA/C/143/2007];
In his judgment, the learned trial judge granted the declaration and injunction being sought. As to the trespass, he said:-
For trespass since 1961, the harassment by the plaintiffs soldiers, sourcing alternative accommodation outside the property in issue since 1967, the shame of a man running away from another man like 3rd defendant did for dear life, and a lot more, I award to the 3rd defendant N1 million damages. Plaintiffs shall vacate the premises forthwith.
This Court further aptly held:
As a result of the forceful takeover of the disputed property and threat to his life, the 3rd respondent had to relocate to Ghana. In the 1st plaintiff’s own words he had been in occupation of the property since 1961 albeit illegally and had been collecting rent despite the judgment in suit No.MC/5A/1963 which was delivered on 29/10/63.
Per Akaahs, JCA [as he then was].
Not unexpectedly, the Court below in the present suit [HC/53/2010] which led to the instant appeal in the determination of the 3rd Respondent’s preliminary objection upon hearing argument of the respective parties, came to the most inevitable far-reaching findings:
From all the fore-going, it seems –
1. That the parties in the present suit are the same as in suit No.HC/334/2004.
2. That the subject matter in both suits between the said parties is also the same, namely, the right of inheritance and the ownership of the estate or property known as and ling at No.4 Harcourt St./No. 3 Trenchard Street, Calabar, originally owned by Chief Okon Ekpon Duke (deceased) who died intestate in 1925.
3. That in suit No. HC/334/2004 the parties fully actively and litigated this cause or matter as claimant and counter/claimant respectively, to conclusion before Ita, J; on merits.
4. That the claimant’s claims were dismissed in their entirety for lack of merit, whilst, the 3rd defendant’s claims were upheld and judgment entered in his favour with costs, on 2/2/2007 by Ita, J.
5. The claimant appealed to the Court of Appeal and lost.
6. The claimant applied for leave to appeal out of time to the Supreme Court, and again lost.
7. The claimants judicial enterprise has reached it journey’s end legally.
8. As matters now positively stand, the position, situation and status of the claimant in relation to the land in dispute is that he has been found, held and adjudged in unequivocal terms to be a stranger, a busybody and a trespasser thereon.
9. On a proper consideration and appreciation of the affidavit evidence and the numerous exhibits exchanged by the parties in respect of the instant application before this Court, it seems pretty loud and clear that:
a) all the relevant and material averments relied upon by the 3rd defendant/objector are either expressly admitted or clumsily/poorly evaded. It is now trite that a clumsy or poor evasion of a direct averment amounts to an admission.
b) all the particulars of alleged fraud now belated being propounded by the claimant in respect of suit No. HC/334/2004 in dispute, according to him occurred before, during or in the alleged course of the suit itself. It clearly makes very irrelevant or no sense whatsoever, that the claimant who had full and ample opportunity to raise and canvass them at the said trial or on his appeals, refused or neglected to do so. In the event, I find, hold and declare that the claimant merely wants to have a second bite at the apple or to eat his cake and still have it. That, with respects, the law does not allow or encourage.
10. The claimant’s case failed and was dismissed, whilst the 3rd defendant/counter claimant won his own case fair and square in the trial Court and at the Appeal Courts.
11. The instant suit is merely a belated and wrongful attempt to re-examine or re-consider or re-hear the same case between them, after it has been already fully considered, decided and adjudged on its own merits.
Against the backdrop of the foregoing postulation, it is obvious that this Court is devoid of jurisdictional competence to now review or sit on [a further] appeal on its judgment delivered on 08/12/2009 in the appeal No. CA/C/143/2007. By virtue of the provision of Section 233 of the Constitution of the Federal Republic of Nigeria, 1999 as amended, it is only the Supreme Court that has the jurisdiction, to the exclusion of any other Court in Nigeria, to entertain and determine appeals from the Court of Appeal. What’s more, by virtue of the provision of Order 20 Rule 4 of the Court of Appeal [which is in pari materia with the provisions of Order 18 Rule 4 and Order 19 Rule 4 of the defunct Court of Appeal Rules 2007 and 2011, respectively], the Court of Appeal: Shall not review any judgment once given and delivered by it save to correct any clerical mistake or some error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order Shall not be varied when it correctly represents what the Court decided nor shall the operative substantive part of it be varied and a difficult form substituted.
It is a trite fundamental doctrine, that once a Court has given a final decision on any matter before it, it becomes functus officio. Thus, the Court is precluded from reviewing or varying the term of the judgment or order given, apart from the permissible correction of clerical mistakes or accidental slip. This principle has been enunciated in a plethora of authorities. See NIGERIAN ARMY VS. IYELA [2008] 7 – 12 SC 35; [2008] LPELR – 2014 [SC]; INTERCONTRACTORS NIG. LTD. VS. UACN LTD [1988] 1 NSCC 737 @ 752; BANK OF WEST AFRICA VS. NIPC LTD. [1962] LLR 31; OLAYINKA VS. ELUSANMI [1971] 1 NWLR 227; DINGYADI VS. INEC [2011] ALL FWLR [pt.581] 1462.
In DINGYADI VS. INEC [2011] LPELR- 950 [SC], the Supreme Court aptly held:
“A Court is said to be functus officio in respect of a matter if the Court has fulfilled or accomplished its function in respect of that matter and therefore lack the potency to review, re-open or revisit the matter. Thus, once a Court delivers its judgment on a matter, it cannot revisit or review or set aside the said judgment except under certain conditions. More importantly, a Court lacks jurisdiction to determine an issue when it is functus officio in respect of the issue or where the proceedings relating to the issue is an abuse of Court process. UKACHUKWU vs. UBA [2005] 18 NWLR [Pt.956] page 1; ANYAEGBUNAM VS. A-G, ANAMBRA STATE [2001] 6 NWLR [Pt.710] pg. 532; MOHAMMED VS. HUSSEINI [1998] 14 NWLR [Pt.584] K pg. 108 per Adekeye, JSC @ 44-45 paragraphs E – A.”
In the circumstance, the first issue of the 3rd Respondent’s preliminary objection ought to be, and it is hereby answered in the negative, and accordingly resolved in favour of the 3rd Respondent.
Hence, against the backdrop of the resolution of the 1st issue of the preliminary objection in favour of the 3rd Respondent, I have no hesitation in coming to the most in-evitable conclusion, that the instant preliminary objection is meritorious and ought to be granted. It is equally my considered view, that it would amount to a wasteful academic exercise for me to determine the two other issues of the preliminary objection due to the fact that they are spent, otiose and would not thus accord any utilitarian value to the 3rd Respondent. See THE NATIONAL BOUNDARY COMMISSION vs. AG, ONDO STATE & ORS: [2015] LPELR ? CA/B/135A/2008 @ 4 paragraphs B – E; per Saulawa, JCA; OKOROCHA vs. OHAKIM [2014] LPELR – 22005 [SC]; OHAKIM vs PDP [2014] LPELR – 22058 [SC]; PLATEAU STATE GOVT. vs AG. FED. [2006] 3 NWLR [pt.967] 346 @ 419; ODEDO vs. INEC [2008] LPELR – 2204 [SC].
Most instructively, in the case of ODEDO V. INEC [supra], the Supreme Court aptly reiterated the trite fundamental doctrine: An academic issue does not relate the live issues in the litigation because it is spent, as it will not enure any right or benefit on the successful party.
Per Niki Tobi, JSC @ 36 paragraphs C – G.
Having effectively resolved the 1st issue of the preliminary objection in favour of the 3rd Respondent, there is no gain-saying the fact that the Court has no option at this crucial stage and point in time other than to dismiss the appeal for being an abuse of process of the Court.
Instructively, an abuse of judicial [Court] process is invariably the improper use of Court process by a party in litigation. It may occur in various ways, such as instituting a multiplicity of action on the same subject matter against the same party [parties] regarding the same issue, or multiplicity of action of the same subject matter between the same parties.
In the case of SARAKI VS. KOTOYE [1992] 9 NWLR [Pt.264], the Supreme Court reviewed its previous decisions on the issue thus: The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice.
It is recognized that the abuse of process may lie in both proper or improper use of judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues … thus, the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right rather than the exercise of the right per se. Per Karibi-Whyte, JSC @ 188 – 189 paragraphs E-B.
See also OGOEJEOFO V. OGOEJEOFO (2006) 3 NWLR (PT. 966) 205 @ 220 ? 221 paragraphs C-F; OKAFOR vs. AG. ANAMBRA STATE [1991] 6 NWLR [Pt.200] 659 @ 681 paragraphs C-D; AG. ONDO vs. AG, EKITI STATE [2001] 17 NWLR (Pt.743) 706 @ 771: MOBIL PRODUCING NIG. UNLTD. VS. MONOKPO [2003] 18 NWLR [pt.852] 346 @ 430 – 431 paragraphs E – B; KOLAWOLE VS. AG, OYO STATE [2006] 3 NWLR [Pt.966] 50 @ 74 paragraphs B – D.
Afortiori, in the case of ARUBO vs. AIYELERU, the Supreme Court held that the relitigation of already determined [decided] case or issues tantamount to an abuse of Courts process, even if the matter is not strictly res judica.
See [1993] 3 NWLR [Pt. 280] 126. See also STEPHENSON VS GARNET [1898] 10 QB 677; ADIGUN VS. IWO LOCAL GOVT. [1999] 8 NWLR [Pt.613] 30; AKINWALE VS. AKINWALE [2010] LPELR- 3690 [CA] @ 15 paragraphs E – G, per Ogunbiyi, JCA [as the learned Lord then was].
I have deemed it expedient to reiterate, that a preliminary objection is fundamentally antithetic to the hearing and determination of the appeal on the merits. This is absolutely so, because by the nature and objective thereof, a preliminary objection essentially tends to foreclose or abort the appeal in limini, and where upheld by the Court as in the instant case, it effectively terminates the appeal. That is to say, where upheld, a preliminary objection automatically puts an end to the appeal, without necessarily determining the issues raised therein on the merits. See ODUNZE VS. NWOSU [2007] 13 NWLR [Pt.1050] 1; [2007] ALL FWLR [Pt. 379] 1295 @ 1314-1315; ANPP VS. REC. AKWA IBOM STATE [2008] 8 NWLR [Pt.1090] 453 @ 506 paragraphs F G; CHIEF THOMAS EKPEMUPOLO VS. GODWIN EDREMODA [CA/C/230/2010], judgment delivered on 07/7/2014.
CONSEQUENTIAL ORDERS:
The doctrine is well settled, that once a Court arrives at the most inevitable conclusion that any proceedings or process is an abuse of judicial [Court] process, it has the onerous duty to dismiss it. See WILLS vs. EARL OF BEAU CHAMP [1886] 11; ONYEABUCHI vs INEC [2002] 4 ELR – 2726 [SC] @ 20 paragraphs B – D, per Ayoola, JSC:
Once a Court is satisfied that the proceedings before it amounts to an abuse of process, it has the right in fact the duty, to invoke its coercive powers to punish the party which is in abuse of its process. Quite often, that power is exercisable by a dismissal of the action which constitutes the abuse.
In my considered view, the duty of the Court to exercise its coercive powers is not limited to merely dismissing the action vis-a-vis appeal on ground of abuse of judicial process. Undoubtedly, the Court equally has the unfettered power to impose punitive costs on the recalcitrant party and or the counsel thereof. See Section 11 of the Court of Appeal Act [2004] [2010 Amendments]:
The Court of Appeal shall have power to award costs in all civil proceedings in the Court of Appeal and subject to the provisions of any other law and to rules of Court, it shall be in the discretion of the Court of Appeal to determine by whom and to what extent the costs shall be paid.
See also Order 20 Rule 7 of the Court of Appeal Rules, 2016.
Indeed, it’s a fundamental principle, that a legal practitioner has a far-reaching onerous duty to uphold and observe the rule of law, promote and foster the veritable cause of justice, maintain a high standard of professional conduct throughout his active practice. Thus, a legal practitioner shall not in any way and under whatever circumstance, engage in any conduct which is unbecoming of a member of the honourable and highly prestigious learned profession. See the Legal practitioners Act; The Rules of Professional Conduct for Legal Practitioners; ANPP VS REC, AKWA IBOM STATE [2008] 8 NWLR [pt.1090] 453 @ 526 paragraphs E – G and 528 paragraphs E – H, per Saulawa, JCA; ANOZIA VS. AG, LAGOS STATE [2010] LPELR CA/L/140/08 @ 41 – 42 paragraphs C – C, per Saulawa, JCA.
As aptly found by the Court below; The instant suit is merely a belated and wrongful attempt to re-examine or reconsider or re-hear the same case between them, after it has been already fully considered, decided and adjudged on its merits …
In my humble conclusion, I entirely agree with the objection that this instant suit is an ingenuous [sic] attempt to relitigate a settled matter and therefore an abuse of process.
See pages 184, lines 28 – 30 and 196, lines 22 – 23, of the Record of Appeal.
It is my considered view, that the behavioural disposition of the Appellants’ learned counsel, Chief Orok I. Ironbar, leaves so much to be desired. The ingenious “attempt to relitigate a settled matter as aptly found by the Court below is undoubtedly attributed to the Appellants’ learned counsel who unwittingly allowed himself to be misled by the Appellant to resort to what could aptly be termed a sharp practice.
Instructively, a sharp practice denotes unethical action or trickery, most especially by a lawyer. See BLACKS LAW DICTIONARY 8TH EDITION @ 1409. As was once aptly held by this Court:
It has always been the responsibility of the Courts to check sharp practice by counsel. In RE SWIRE; MELLOR vs SWIRE [1882] LR 21 CD 649 where BACON V. C. stated thus: It is the duty of the Court to repress sharp practice. See AGORO V. AROMOLARAN (2011) LPELR CA/A/223/2003, per ADUMEIN, JCA @ 22 – 23 paragraphs F – A. See also BAWA VS. BALARABE (1999) 6 NWLR (Pt. 605) 51; KWAPTOE V. TSENYIL (1999) 4 NWLR (pt. 600) 571; PERE ROBERTO NIG. LTD VS. ANI (2000) 13 NWLR [Pt. 522] @ 535; SC.950/2016: PRINCE BIYI POROYE & ORS V. PDP & ORS.
There is every reasonable cause for me to reiterate the trite fundamental rule, that as an officer in the hallowed temple of Justice, the Appellant’s counsel, is under an onerous duty not to resort to any conduct in any manner that may obstruct, delay or adversely affect the administration of justice, or abuse the judicial process of the Court.
Hence, having arrived at the inevitable conclusion that the instant appeal tantamounts to a gross abuse of the judicial process of this Court and the Court below, the said appeal is hereby dismissed by me. The vexed judgment of the Court below, coram the Hon. O. l. Itam, Chief Judge [of blessed memory] delivered on October 17, 2011 in suit No. HC/53/2010, is hereby affirmed.
Consequently, I have considered it imperative to levy costs of N500,000.00 against the Appellant’s counsel, Chief Orok I. Ironbar, favour of the 3rd Respondents.
STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft the judgment just delivered by my learned brother, I. M. M. Saulawa, JCA. His Lordship has elaborately rendered the facts of this case which I hereby adopt wholesale.
The law views abuse of Court process seriously. In the case of DINGYADI & ANOR. VS. INEC & ORS. (2010) 7 ? 12 SC 165, Adekeye, JSC held as follows:
“This Court in DINGYADI vs. INEC (No. 2) stated categorically that abuse of Court is not merely an irregularity that can be pardoned but constitutes a fundamental defect, the effect of which will lead to dismissal of the process which is abusive. In the case of ARUBO VS. AIYELERU (1993) 3 NWLR (PT. 280) PG. 125, the Supreme Court took the stand that: ‘Once a Court is satisfied that the proceeding before amounts to an abuse of process, it has the right, in fact the duty to invoke its coercive powers to punish the party which is in abuse of its process. Quite often, that power is exercised by a dismissal of the action which constitutes the abuse.'” ADESANOYE VS ADEWOLE (2000) 9 NWLR (PT.127) PG.671.
The stand of the Court as expressed in this and several decisions is that it is offensive for a party to deploy judicial process to vex or offend another party. See CBN vs. AHMED & ORS. (2001) 11 NWLR (PT.724) 369; NIMB LTD. vs. UBN LTD. & ORS (2004) 12 NWLR (PT.888) 599; OGOEJEOFO VS. OGOEJEOFO (2006) 3 NWLR (PT.966) 205 (PT.966) 205.
Where, therefore, a party improperly deploys a judicial process to the irritation of his opponent and subject the efficient and effective administration of justice to stress and ridicule or clandestinely deploy judicial process to oppress his opponent, the Court must rise up to the challenge and deal squarely with such an unwholesome and an unorthodox practice. It is well known that it is in the public interest that there should be an end to litigation hence the Latin maxim, interest Reipublicae ut sit finis litium. Every Court it is trite, has adequate capacity and vires to deal with the abuse of its process. This case as was found in the lead judgment is an abuse of the process and the only option for this Court is to dismiss this appeal.
I am therefore in total agreement with my learned brother that this appeal is an abuse of the process of the Court and it must be dismissed. I accordingly dismiss this appeal and I abide by the consequential orders inclusive of the order as to costs made in the lead judgment.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother I.M.M. SAULAWA, JCA.
I equally agree that the preliminary objection is meritorious. I consequently hold that this appeal is absolutely incompetent and totally undeserving of any meritorious consideration. It is in fact a gross abuse of the judicial process and must be so treated.
It is accordingly dismissed.
Appearances:
Chief Orok I. IronbarFor Appellant(s)
Ama E. Ekpo, Esq.,Senior State Counsel, MOJ Cross River State for 1st & 2nd Respondents
Sir Kingley Ekpe for 3rd Respondent.
For Respondent(s)
