GUKAS v. REGD TRUSTEES OF THE HILLCREST SCHOOL, JOS & ANOR
(2020)LCN/14661(CA)
In The Court Of Appeal
(JOS JUDICIAL DIVISION)
On Friday, October 09, 2020
CA/J/128/2019
RATIO
ACTION: WHAT CONSTITUTES A CAUSE OF ACTION
Cause of action is said to be constituted by the bundle or aggregate of facts which the law will recognize as giving the Plaintiff a substantive right to make the claim against the relief or remedy being sought. That is to say that the factual situation relied upon must constitute the essential ingredients of an enforceable right or claim. Put in another way, it is an act on the part of the Defendant which gives the Plaintiff his cause of complaint. See the following case BELLO V A.G. OYO STATE (1986) 5 NWLR (Pt. 45) 828 at 876, AKILU V FAWEHINMI (No. 2) (1989) 3 SC (Pt. 11) 1. In the case of IBRAHIM V OSIM (1988) 1 NSCC 184 at 194 Uwais JSC, (Former Chief Justice of Nigeria) said thus on meaning of the expression “reasonable cause of action”:
“The question therefore is what is a reasonable cause of action? The words “cause of Action” without the adjective ‘reasonable’ had been defined by this Court in Savage & Ors V Uwechia (1972) 3 SC (Reprint) 206, (1972) 1 ALL NLR (Pt. 1) 251 at 256, (1972) 3 SC 24 at 221 where Fatai –Williams JSC, (as he then was) said: “A cause of action is defined in Stroud’s judicial dictionary as the entire set of circumstances giving rise to an actionable claim. To our mind, it is, in effect, the fact or combination of facts, which gives rise to a right to sue and it consists of two elements – the wrongful act of the Defendant which gives the Plaintiff his cause of complaint and the consequent damage. As Lord Esther said in COOKE V GILL (1873) LR 8 CP. 107 and later in READ V BROWN (1888) 22 QBD 128 (CA) it is every fact that would be necessary for the Plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. (See KUSADA V SOKOTO NATIVE AUTHORITY (1968) 1 ALL NLR 377 where the definition in READ V BROWN (supra) was referred to with approval. See also CHEVRON NIG LTD V LONESTAR DRILLING NIG LTD (2007) 7 SC (Pt. 11) 27 at 33-37 & 45 – 46.”
See also RINCO CONSTRUCTION CO. LTD V VEEPEE INDUSTRIES LTD (2005) 3-4 SC 1 at 3-5, MILITARY ADMIN EKITI STATE & 6 ORS V ALADEYELU & 3 ORS (2007) 4-5 SC. 201 at 234 -235, MILITARY GOVERNOR OF ONDO STATE & 5 ORS V KOLAWOLE & 4 ORS (2008) 4-5 SC (Pt. 11) 158 at 184-185, OJUKWU V YAR’ADUA & 4 ORS (2009) 4-5 SC (Pt. 1) 13 at 71-73.
On what constitute cause of action, it is trite that a cause of action arises from circumstances containing different fact that gives rise to a claim that can be enforced in a Court of law, and thus lead to the right to sue a person responsible for the existence of such circumstances. There must therefore be a wrongful act of a party sued which has injured or given the Plaintiff a reason to complain in a Court of law of consequent damage to him. See LABODE V OTUBU (2001) 3 SC 15, CAPITAL BANCORP LTD V SHELTER SAVINGS LOAN LTD & ANOR (2007) 1 SC (Pt. 11) 1 at 12. PER ONIYANGI, J.C.A.
COURT PROCESS: THE CONCEPT OF ABUSE OF COURT PROCESS
The term “Abuse of Court process” simply connotes the misuse of Court’s process and it includes acts which otherwise interfere with the course of justice. The act of Abuse of Court process includes but not limited to acts where without reasonable ground a party institutes frivolous, vexatious and oppressive actions and also by instituting multiplicity of actions as in the present appeal at hand or is on a frolic act of forum-shopping again as in this appeal, seeking for favourable Court to entertain a matter. Such matters ordinary should be dismissed. See DINGYADI & ANOR V INEC & 2 OR (2010) 7 – 12 Sc 10 at 134-135. Let me add, that an abuse of Court process may occur when a party improperly uses the judicial process to the harassment, irritation and annoyance of his opponent and or to interfere with the administration of justice such as where two similar processes are issued against the same party in respect of the exercise of the same right and subject. See OJO AND 3 ORS V OLAWORE & 5 ORS (2008) 6-7 SC (Pt. 11) 54. PER ONIYANGI, J.C.A.
Before Our Lordships:
Tani Yusuf Hassan Justice of the Court of Appeal
Mudashiru Nasiru Oniyangi Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Between
RINRET YUSUF GUKAS (MINOR) SUING THROUGH HIS NEXT FRIEND, STEVE GUKAS APPELANT(S)
And
(1) THE REGISTERED TRUSTEES OF THE HILLCREST SCHOOL JOS (2) MRS. ANNE LUCASSE RESPONDENT(S)
MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): The Appellant in this appeal was the Applicant before the Federal High Court Jos Judicial Division herein after referred to as the trial Court. His action before the trial Court against the Respondents was by way of an Originating Motion initiated pursuant to Order 1 Rules 1 &2 and Order 2 Rules 1, 2, 3, 4 and 5 of the Fundamental (Enforcement Procedure) Rules, 2009, Articles 2, 3, 4, 7, 11, 14, 18 and 20 of the African Charter on the Rights and Welfare of the Child 1999, and Articles 17(1) & 18(3) of the African Charter on Human and Peoples’ Right 1986 and through which he sought for the following Declaratory orders:
(1) A DECLARATION that the Applicant is entitled to an unhindered, unfettered and unobstructed enjoyment of their fundamental rights, as enshrined under and by virtue of the African Charter on the Right and Welfare of the Child 1999 and the African Charter on Human and Peoples’ Rights, 1986 particularly the right not be discriminated against as specifically protected under Articles 3, 11, 14 and 20 of the African Charter on the Right and Welfare of the Child 1999
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which extends to other status of the child and that the rescinding of the Applicant’s admission on the ground of his health condition is therefore discriminatory.
(2) A DECLARATION that under and by virtue of Article 20 of the African Charter on the Rights and Welfare of the Child 1999 the best interest of the Applicant should and ought to be the Respondent’s primary or paramount consideration in all its dealing, action and undertakings with the Applicant and therefore the unilateral rescinding of the Appellant’s admission due to his health status was not in the best interest of the Applicant and as such, discriminatory and a breach of his right as protected under the Charter.
(3) A DECLARATORY that the sudden unilateral rescinding of the admission given to the Applicant on manageable health ground is arbitrary and discriminatory as same is an infraction and a flagrant breach of the clear and unambiguous protection guaranteed under the African Charter on the Right and Welfare of the Child, 1999 regarding the rights of a Child and how his best interest must be taken into consideration whenever such rights are brought
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to question.
(4) A DECLARATION that the decision of the Respondents to rescind the admission of the Applicant after the Applicant had resumed school and was fully settled in school for over a month, under the pretext of the Respondent’s inability to manage “Nut allergy” which was duly disclosed ahead of the Applicant’s resumption, is without regards, arbitrary, insensitive, high-handed, vicious, malicious, reprehensible, capricious, obnoxious, immoral, unjust, unjustifiable, unconscionable, condemnable, despicable, wrecked, preposterous inhuman, unwarranted, primitive and not in the best interest of the Applicant.
(5) A DECLARATION that the unilateral decision of the Respondents to single out the Applicant and rescind his admission with effect from Sunday 10th September, 2017 is illegal and imposes undue hardship on the Applicant, physically and mentally as the Applicant self-esteem has been greatly negatively impacted on and his personality greatly diminished.
(6) A DECLARATION that the applicant’s parents acted in the best interest of the Applicant in returning him to Nigeria to further his cultural
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integration.
(7) A DECLARATION that the decision of the Respondents to disrespect, jettison and or refuse to give effect to the Review of the Applicant’s Medical Report by the Jos University Teaching Hospital showing that the Applicant medical condition is not an immediate risk for the school is inconsiderate, discourteous, deceptive, unconscionable, manifestly reprehensive, outright condemnable and against the best interest of the Applicant.
(8) AN ORDER SETTING ASIDE the letter dated September, 8th 2017 written by the 2nd Respondent and addressed to the Applicant’s parents and by which the decision of the Respondents’ to rescind the admission of the Applicant was conveyed for being discriminatory and against the best interest of the Applicant.
(9) AN ORDER reinstating the Applicant admission which was legitimately given and unlawfully rescinded to discriminatory reason by the Respondents.
(10) AN ORDER OF MANDATORY INJUNCTION restraining or prohibiting the Respondents either by themselves, their agents, staff, officers, or any person howsoever called or described and acting through them or at their behalf, from
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discriminating against, dehumanizing, maltreating or otherwise victimizing the Applicant or in any way treat him in such manner as may be injurious, harmful, obnoxious or prejudicial to his training, health, educational development and social interaction in the Respondents’ school as a result to this Court action.
(11) AN ORDER mandating the Respondents to give effect to the medical advice given by the Jos University Teaching Hospital and take the needed precautions in managing the stated allergy in the best interest of the Applicant.
(12) AN ORDER commanding the Respondents to publish in three (3) National Newspapers and not later than 7 days after judgment is entered in this suit. AN APOLOGY for the unlawful, unjust, unjustifiable, arbitrary, conscionable and discriminatory rescinding of the Applicant admission on the 8th of September, 2017.
(13) AN ORDER OF MANDATORY INJUNCTION COMPELLLING the 1st and 2nd Respondents to jointly and severally immediately pay to the Applicant the sum of N100,000,000 (One Hundred Million Naira) only, being general and exemplary damages for the unlawful, illegal, immoral, discriminatory and unjustifiable
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rescinding of the Applicant’s admission and the physical and mental torture that the Applicant has to undergo as a result of which his personal esteem has been greatly depleted.
(14) The cost of this action assessed at N10,000,000.00 (Ten Million Naira) only.
(15) Such further order or other orders as this Honourable Court may deem fit to make in the circumstance of this case.
The grounds upon which the application is predicated are stated on pages 10 – 13 of the Record of Appeal wherein the following can be found:
(1) The statement made pursuant to Order II Rule 3 of the Fundamental Right (Enforcement Procedure) Rules 2009.
(2) An affidavit in support of the application of 26 paragraphs.
(3) Exhibits marked as RYG1- RYG9.
(4) Written address.
Consequent upon the service of the foregoing processes on the Respondents, they filed a counter affidavit of 36 paragraphs deposed to by the 2nd Respondent MRS. ANNE LUCASSE. Annexed to the said Counter affidavit are documents marked Exhibit HS1 and HS2. Also a written address was filed. Regardless of the foregoing counter processes filed by the Respondents they also
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registered a Notice of Preliminary Objection challenging the competence of the action by the Applicant/Appellant and the jurisdiction of the trial Court to entertain it – pursuant to Order VIII of the Fundamental Right (Enforcement Procedure) Rules 2009.
The grounds of the objection as can be captured in the Record are:
(1) The application is incurably incompetent pursuant to the provisions of Section 173 of the Evidence Act, 2011. The facts directly in issue between the parties in the instant application (GHC/J/CS/24/2018. MOTION NO. FHC/M/99/2018) are the same with the facts in suit No. FHC/J/43/2017 between the same parties wherein the Court made a decision on the merit on the 23rd day of February, 2018.
(2) The jurisdiction centered on the Federal High Court by Section 251(1) is a special jurisdiction which is limited to the categories of matters listed in Section 251(1) (a-s); (2); (3) and (4) of the 1999 Constitution of the Federal Republic of Nigeria (As amended); and Section 7 of the Federal High Court Act, Chapter 134, Laws of the Federation, 2004.
(3) Neither of the parties nor the subject matter of the application before
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the Court falls into the categories of the matter in which the Federal High Court is vested with the jurisdiction granted by Section 251(1) (c-s); (2); (3) and (4) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)
Issues were joined by the parties on the Preliminary Objection raised by the Respondents and in the end, the trial Court in its considered Ruling delivered on 8th November, 2018 concluded as follows (See pages 222 – 223 of the Record of Appeal) thus:
“(1) The parties in this case the former (sic) case decided by my learned brother are same.
(2) The prayers are the same.
(3) The grounds are the same.
(4) This Court had already heard and decided upon this case that it has no jurisdiction.
(5) I have no jurisdiction to sit on a case already decide by my learned Brother.
In conclusion, I hold in favour of the Respondents against the Applicant and consequently hold further that the Respondent’s Preliminary Objection succeeds. This case is hereby struck out for want of merit.”
Peeved by the foregoing outcome of the preliminary objection by the Respondents against the
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application by the Appellant hence this appeal. The Notice of Appeal is dated and filed on the 9th day of February, 2019. (See pages 224 – 227 of the Record of Appeal). It has two grounds. Therein the Appellant in paragraph 4 sought for the following reliefs.
(1) An Order allowing the appeal and reversing the judgment of Honourable justice M. H. Kurya sitting in the Federal High Court, Jos judicial Division delivered on 8th of November, 2018 by entering judgment in favour of the Respondents.
Respective Counsel filed and exchanged their brief of argument. The Appellant’s brief of argument was authored by Silas Joseph Onu Esq., the following issues are presented for the determination of the appeal.
APPELLANT’S ISSUES FOR DETERMINATION
(1) In view of the contents of Exhibit “ROI” which was duly tendered by the 1st and 2nd Respondents before the trial Court, will it be correct to hold that the prayers and grounds as contained in suit No. FHC/J/CS/43/2017 are, in fact, one and the same with the prayers and grounds as contained in suit No. FHC/J/CS/24/2018 as held by the trial Court? (Ground 1)
(2) Considering that
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the decision striking out suit No. FHC/J/CS/43/2017 was occasioned by Ground 4 and Reliefs 5, 6, 7, 10, 11 and 15 of the said suit being contractual in nature and thereby did not fall within the ambit of the facts, also, that the suit was not heard on the merit, as clearly agreed by the trials Court(sic) in suit No. FHC/J/CS/24/2018. Upon the complete removal of the offensive ground and reliefs in the subsequent suit No. FHC/J/CS/24/2008, will it be correct to hold that the proper step to be taken by the Applicant/Appellant was only to appeal and striking out of suit No. FHC/J/CS/43/2017? (Ground 2). See Exhibit “RO2” in pages 101 to 126 and pages 203 to 223 of the record of Appeal, respectively.
The Respondents’ brief written by Labaran Tijjani Sule Esq. dated 10th June, 2019 was filed on 11th June, 2019. Therein, he formulated the following two issues but in the alternative for the determination of this appeal thus:
RESPONDENTS’ ISSUES FOR DETERMINATION
(a) Is the cause of action in Application No. FHC/J/CS/43/2017 BETWEEN RINRET YUSUF GUKAS (suing through his next friend YUSUF GUKAS) AND THE REGISTERED TRUSTEES OF THE
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HILLCREST SCHOOL, JOS & 1 OR, the same with the cause of action in Application No. FHC/J/CS/24/2018 BETWEEN RINRET YUSUF GUKAS (Suing through his Next friend YUSUF GUKAS) AND THE REGISTERED TRUSTEES OF THE HILLCREST SCHOOL, JOS & 1 OR?
If the answer to the above issue is in the affirmative, then
(b) Was the learned trial judge, Hon. Justice Kurya M.H. right, in law, when he struck out the case of the Appellant for want of jurisdiction in view of the judgment delivered by Hon. Justice Agishi D. V. of the Federal High Court 1 sitting in Jos in Application No. FHC/J/CS/43/2017 BETWEEN RINRET YUSUF GUKAS (suing through his next friend YUSUF GUKAS) AND THE REGISTERED TRUSTEES OF THE HILLCREST SCHOOL, JOS & 1 OR?
Let me put on record that the learned Counsel representing the Appellant also filed a reply brief dated 17th day of June, 2019 and filed on the 18th day of June, 2019.
Respective Counsel adopted their briefs of argument. Upon a careful reading of the respective issues presented by parties, I have decided to settle with the issues formulated by the Appellant for the determination of this appeal. I have also observed that the
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two issues formulated by the Appellant are toiling round the same objective goal. For that purpose I have decided to redraft the issues and fusing them into one thus:
Whether the learned trial judge was right in striking out the Appellant’s suit No FHC/J/CS/24/2018 for want of jurisdiction vide its ruling of 8th day of November, 2018 having regard to the decision of the Court in suit No. FHC/J/CS/43/2017 between the same parties delivered on the 23rd day of February, 2018.
The contention of the learned Counsel to the Appellant after reproducing the reliefs sought by the Appellant in his suit before the Federal High Court 1 Jos Division in suit No. FHC/J/CS/43/2017 and that in suit NO/ FHC/J/CS/24/2018 is that the learned trial judge was wrong in holding that the reliefs sought in the two suits are same materially. He argued that a careful comparison of the two processes will reveal that suit No. FHC/J/CS/24/2018 contains clear improvements and was carefully drafted to avoid the pitfalls contained in Suit NO. FHC/J/CS/43/2017 that led to its eventual striking out for not falling within the ambit of Fundamental Right (Enforcement Procedure)
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Rules, 2009. It is his case that his response to the objection raised by the 1st and 2nd Respondents to his suit was tailored pursuant to Section 173 of the Evidence Act, 2011 (as amended). According to him, by his argument, there is no rationale for holding that the grounds and reliefs in suit Nos. FHC/J/CS/24/2018 and FHC/J/CS/43/2017 are the same as both are materially different from each other, even as the parties and subject matters are the same. He submitted that it bothers on undue technicality on the part of the trial Court to strike out suit No. FHC/J/CS/24/2018 for the reasons stated in the Ruling/Judgment. He added that for the foregoing this Court ought not allow the Ruling/Judgment of the trial Court to stand. He urged the Court to resolve the question in favour of the Appellant.
Further he contended that at the trial Court the 1st and 2nd Respondents created their own reality by asserting that the decision in suit No. FHC/J/CS/43/2017 was one made on the merit and relied on the cases of PANALPINA WORLD TRANSTPORT (NIG) LTD VS J.B. OLADEEN INTERNATIONAL & 4 ORS (2010) 19 NWLR (Pt. 1226) 1 at 20 paras. B-E; CHIEF OZO NWANKWO ALOR & 1 OR VS CHRISTOPHER NGENE & 7 ORS
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(2007) 17 NWLR (Pt. 1062) 163 at 175 – 176 paras. F – A with the sole aim of misleading the Court as they imagined and contended that the decision in that suit No. FHC/J/CS/43/2017 was delivered for which they further cited the cases of OJEMEN & ORS VS MOMODU & ORS (1983) 3 SC 173, LPELR – 2371; BAMISEBI VS FALEYE (1987) NWLR (Pt. 54) 51. Referring to the pronouncement of the Supreme Court in the case of PANALPINA WORLD TRANSPORT (NIG) LTD VS J.B. OLADEEN INTERNATIONAL & ORS (2010) 19 NWLR (Pt. 1226) 1 to 20 on effect of striking out. He contended that it is not clear if the conclusion reached by the trial judge in suit being appealed against was influenced by the misleading argument of the 1st 2nd Respondents. He added that it is however clear in the Ruling appealed against that the Court in suit No. FHC/J/CS/34/2017 did not consider the merit of the case before it for want of jurisdiction. Therefore, the order striking out the suit was not and could never have amounted to a determination of the suit on merit as wrongly argued by the Respondent and erroneously held in self-contradiction by
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the trial Court. Further he argued that the trial Court in suit No. FHC/J/CS/43/2017 was never heard or determined on the merit. The trial Court in suit No. FHC/J/CS/43/2017 heard and considered the preliminary objection of the 1st and 2nd Respondents and in its Ruling on the objection struck out the suit without going further. It is his case that the lower Court acted in error and therefore, handed down a perverse Ruling/Judgment by wrongly applying the provision of Section 173 of the Evidence Act, 2011 (as amended) in reaching the conclusion that
“(4) The Court had already heard and decided upon this case that it has no jurisdiction.
“(5) I have no jurisdiction to sit on a case already decided by my learned brother.”
He submitted that the foregoing decisions are unprecedented in law and should not be allowed to fester in the interest of justice.
He concluded that the decision of the lower Court on this issue, should not be allowed to take root and that this Court is on strong legal wicket to right the wrong and enter the correct verdict which any reasonable man will agree with as being one which serves the interest
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of justice. He urge the Court to resolve this issue in favour of the Appellant, allow the appeal and set aside the judgment of the lower Court and order the Court to hear and determine the suit FHC/J/CS/24/2018 on the merit.
On behalf of the Respondents, it is submitted that the cause of action in suit No. FHC/J/CS/43/2017 BETWEEN RINRET YUSUF GUKAS (suing through his next friend YUSUF GUKAS) AND THE REGISTERED TRUSTEES OF THE HILLCREST SCHOOL, JOS & 1 OR is the same with the cause of action in Application No. FHC/J/CS/24/2018 BETWEEN RINRET YUSUF GUKAS (suing through his next friend YUSUF GUKAS) AND THE REGISTERED TRUSTEES OF THE HILLCREST SCHOOL, JOS & 1 OR notwithstanding the cosmetic amendment to the reliefs sought by the Appellant in Application No. FHC/J/CS/24/2018 BETWEEN RINRET YUSUF GUKAS (suing through his next friend YUSUF GUKAS) AND THE REGISTERED TRUSTEES OF THE HILLCREST SCHOOL, JOS & 1 OR. He submitted that the cause of action in the two suits are same. On meaning of cause of action he referred to the case of MILITARY ADMINISTRATOR, EKITI STATE & 6 ORS VS PRINCE BENJAMIN ADENIYI ALADEYELU & 3 ORS (2007) 14 NWLR (Pt.
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1055) at 169 particularly at 652 paras. E-F. He submitted that the cause of action in the two suits by the Appellant against the Respondents are the same and based on the rescission of the Appellant’s admission to the 1st Respondent’s school. He urge the Court to so hold. The trial Court was right in striking out the suit for want of jurisdiction. He argued further that for the trial Court to entertain the second suit will amount to reopening the suit between the parties which has been determined on its merit. He added that the learned trial judge in the case appealed against is functus officio and lacked the jurisdiction to hear the application. He relied on Section of the Evidence Act, 2011 and the following cases; OJEMEN & ORS VS MOMODU AND ORS (1983) LPEPR – 2371; BAMISEBI V FALEYE (1987) (Pt. 54) 51; OGBORU VS IBORI (2005) 13 NWLR (Pt. 942) 319; SUN INSURANCE VS LMBS LTD (2005) 12 NWLR (Pt. 940) 608; UKACHUKWU VS UBA (2005) 18 NWLR (Pt. 956) 1; UBENG V USUA (2006) 12 NWLR (Pt. 994) 224; ONYEKWELI VS INEC (2009) 6 NWLR (Pt. 1136) 13. He added that the order of striking out in the first application and suit is tantamount to dismissing the
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case of the Appellant in that the decision was on its merit. He relied on the following cases:PANALPINA WORLD TRANSPORT (NIG) LTD VS J.B. OLADEEN INTERNATIONAL & 4 ORS (2010) 19 NWLR (Pt. 1226) 1 at 20 paras. B-E; CHIEF OZO NWANKWO ALOR & 1 OR VS CHRISTOPHER NGENE & 7 ORS (2007) 17 NWLR (Pt. 1062) 163 @ (175 – 176). Paras. F-A. It is his contention that the decision in the 1st suit estopped the Appellant from reopening the same issue before another Court. He cited the case of WILLIAM LADEGA & ORS VS SHITTU DOROSIMI & ORS. Reported in LC at 355 at 356 paras. C- F. He added that the finding of the trial Court attacked squarely and uprooted the case of the Appellant before Court that first entertained the Appellant’s suit. He added that the only option the Appellant was left with was to have appealed against the decision in the first suit to ventilate his 1st suit. It is his contention that a litigant is not at liberty to cherry pick different reliefs and urge them before different Courts based on the same set of facts as the facts that constitutes the case of the litigant are more important than the reliefs sought by such
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litigant. He added that the reliefs sought are not independent of the facts. He urge the Court to hold that the appeal lacked merit and should be dismissed.
The pertinent question that agitates the mind is whether the cause of action in suit No. FHC/J/CS/43/2017 and FHC/J/CS/2018 are same and between the same parties. Cause of action is said to be constituted by the bundle or aggregate of facts which the law will recognize as giving the Plaintiff a substantive right to make the claim against the relief or remedy being sought. That is to say that the factual situation relied upon must constitute the essential ingredients of an enforceable right or claim. Put in another way, it is an act on the part of the Defendant which gives the Plaintiff his cause of complaint. See the following case BELLO V A.G. OYO STATE (1986) 5 NWLR (Pt. 45) 828 at 876, AKILU V FAWEHINMI (No. 2) (1989) 3 SC (Pt. 11) 1. In the case of IBRAHIM V OSIM (1988) 1 NSCC 184 at 194 Uwais JSC, (Former Chief Justice of Nigeria) said thus on meaning of the expression “reasonable cause of action”:
“The question therefore is what is a reasonable cause of action? The words
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“cause of Action” without the adjective ‘reasonable’ had been defined by this Court in Savage & Ors V Uwechia (1972) 3 SC (Reprint) 206, (1972) 1 ALL NLR (Pt. 1) 251 at 256, (1972) 3 SC 24 at 221 where Fatai –Williams JSC, (as he then was) said: “A cause of action is defined in Stroud’s judicial dictionary as the entire set of circumstances giving rise to an actionable claim. To our mind, it is, in effect, the fact or combination of facts, which gives rise to a right to sue and it consists of two elements – the wrongful act of the Defendant which gives the Plaintiff his cause of complaint and the consequent damage. As Lord Esther said in COOKE V GILL (1873) LR 8 CP. 107 and later in READ V BROWN (1888) 22 QBD 128 (CA) it is every fact that would be necessary for the Plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. (See KUSADA V SOKOTO NATIVE AUTHORITY (1968) 1 ALL NLR 377 where the definition in READ V BROWN (supra) was referred to with approval. See also CHEVRON NIG LTD V LONESTAR DRILLING NIG LTD (2007) 7 SC (Pt. 11) 27 at 33-37 & 45 – 46.”
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See also RINCO CONSTRUCTION CO. LTD V VEEPEE INDUSTRIES LTD (2005) 3-4 SC 1 at 3-5, MILITARY ADMIN EKITI STATE & 6 ORS V ALADEYELU & 3 ORS (2007) 4-5 SC. 201 at 234 -235, MILITARY GOVERNOR OF ONDO STATE & 5 ORS V KOLAWOLE & 4 ORS (2008) 4-5 SC (Pt. 11) 158 at 184-185, OJUKWU V YAR’ADUA & 4 ORS (2009) 4-5 SC (Pt. 1) 13 at 71-73.
On what constitute cause of action, it is trite that a cause of action arises from circumstances containing different fact that gives rise to a claim that can be enforced in a Court of law, and thus lead to the right to sue a person responsible for the existence of such circumstances. There must therefore be a wrongful act of a party sued which has injured or given the Plaintiff a reason to complain in a Court of law of consequent damage to him. See LABODE V OTUBU (2001) 3 SC 15, CAPITAL BANCORP LTD V SHELTER SAVINGS LOAN LTD & ANOR (2007) 1 SC (Pt. 11) 1 at 12. For the foregoing, the cause of action in both suits of the Appellant as can be gleaned from the respective Originating Motions, Grounds, and the affidavit in support is predicated on the decision of the Respondents to rescind the admission of the
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Appellant into the Hillcrest School Jos based on health ground and inability to “manage Nut allergy” of the Appellant by the School authorities i.e. the Respondents. See pages 2-32 for the Originating processes in suit No. FHC/J/CS/24/2018 which decision is the subject of this appeal and suit No. FHC/J/CS/43/2017 decided on 23/2/2018. (See pages68-126 of the Record of Appeal). It is also on record that the learned trial judge, Hon. Justice D.V. Agishi in suit No. FHC/J/CS/43/2017 and in his wisdom concluded as follows (See pages 125 -126 of the Record of Appeal) thus:
“On the whole it is my humble opinion and view that this action as constituted by the Applicant does not fall within the ambit of the Fundamental Rights (Enforcement Procedure) Rules, 2009. This Court lacks the jurisdiction to adjudicate over the subject matter of this suit therefore cases is struck out for being incompetent.”
The Appellant was not happy with the outcome hence his decision to file the action which is subject of this Appeal against the same Respondents. From the foregoing it is clear and unambiguous that the cause of action of the Appellant in
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both suits before the respective trial Court is based on the decision of the Respondent to rescind the admission of the Appellant into Hillcrest School Jos and that both suits are between the same parties i.e.
“BETWEEN RINRET YUSUF GUKAS (Minor suing through his next friend YUSUF GUKAS)
AND
(1) THE REGISTERED TRUSTEES OF THE HILLCREST SCHOOL, JOS
(2) MRS. ANNE LUCASSE”
The Appellant did not challenge the outcome of his first action in suit No. FHC/J/43/2017 in any appellate Court. Rather he decided to file another suit before the same Court but presided over by another judge (Hon. Justice M. H. Kurya). In the considered judgment of his Lordship, Kurya J. concluded as follows (See pages 222 – 223 of the Record of Appeal.)
(1) “The parties in this case the former case decided by my learned brother are the same.
(2) The prayers are the same.
(3) The grounds are the same.
(4) This Court had already heard and decided upon this case that it has no jurisdiction to sit on a case already decided by my learned brother.”
To me, all what the trial Court is saying in the main is that the suit
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by the Appellant before the Court constitutes an abuse of Court process and hence the Court lacks the jurisdiction to entertain it.
The term “Abuse of Court process” simply connotes the misuse of Court’s process and it includes acts which otherwise interfere with the course of justice. The act of Abuse of Court process includes but not limited to acts where without reasonable ground a party institutes frivolous, vexatious and oppressive actions and also by instituting multiplicity of actions as in the present appeal at hand or is on a frolic act of forum-shopping again as in this appeal, seeking for favourable Court to entertain a matter. Such matters ordinary should be dismissed. See DINGYADI & ANOR V INEC & 2 OR (2010) 7 – 12 Sc 10 at 134-135. Let me add, that an abuse of Court process may occur when a party improperly uses the judicial process to the harassment, irritation and annoyance of his opponent and or to interfere with the administration of justice such as where two similar processes are issued against the same party in respect of the exercise of the same right and subject. See OJO AND 3 ORS V OLAWORE & 5 ORS
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(2008) 6-7 SC (Pt. 11) 54.
The Appellant herein did nothing to the decision in his earlier suit No. FHC/J/43/2017. That decision is potent and subsisting against the Appellant and binding on all the parties. The step taken by Appellant of carrying out what I describe as surgical operation by removing and amending reliefs and the grounds in his suit before the trial Court does not help matters and neither does it remove his suit which is subject of this appeal from being an abuse of Court process.
For all the foregoing, I resolve this issue against the Appellant. In consequence, the appeal is adjudged unmeritorious and same be and is hereby dismissed.
The Ruling of the High Court of Justice Plateau State in Suit No FHC/J/CS/24/2018 delivered on 8th day of November, 2018 Coram KURYA J. is hereby affirmed save for the order striking out the suit which is hereby set aside and in its place substituted with an order dismissing suit No. FHC/J/24/2018. This order is made in exercise of the power of this Court pursuant to Order 20 Rule 11(1) & (2) of the Court of Appeal Rules, 2016 and Section 15 of the Court of Appeal Act, 2004.
Parties to bear their respective costs
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TANI YUSUF HASSAN, J.C.A.: I read before now the lead judgment just delivered by my learned brother, MUDASHIRU NASIRU ONIYANGI, JCA. I agree with the lead judgment and abide by the consequential orders made.
BOLOUKUROMO MOSES UGO, J.C.A.: I had the benefit of reading in draft the lead judgment of my learned brother MUDASHIRU NASIRU ONIYANGI, J.C.A. and I am in agreement with his reasoning and conclusion dismissing the appeal.
I abide by all consequential orders in the lead judgment including that as to costs.
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Appearances:
C. Ayuba, Esq. holding the brief of Silas Joseph Onu Esq. For Appellant(s)
Professor Dakas C. J. Dakas, SAN, with him, L. T. Sule Esq. and D. Appolos Esq. For Respondent(s)
