H.R.H. OBA JIMOH OYEBISI FASEYE v. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE OSUN STATE & ORS
(2014)LCN/7478(CA)
In The Court of Appeal of Nigeria
On Thursday, the 30th day of October, 2014
CA/AK/249/2013
RATIO
ACTION: CAUSE OF ACTION AND RIGHT OF ACTION; THE DIFFERENCE BETWEEN A CAUSE OF ACTION AND A RIGHT OF ACTION
A cause of action constitutes a set of facts or fact which gives a person a right to claim a judicial redress where he is wronged. A right of action, on the other hand, entitles him to maintain an action on the wrong alleged with a view to getting a judicial redress. See Yusuf v. Co-Op. Bank Ltd (1994) 7 NWLR (pt. 359) 676; U.B.A Ltd v. Micheal O. Abimbolu & Co. (1995) 9 NWLR (pt. 419) 371. per. MOJEED ADEKUNLE OWOADE, J.C.A.
COURT: FINAL AND INTERLOCUTORY JUDGMENT; THE TEST FOR DETERMINING WHETHER A JUDGMENT OR ORDER IS FINAL OR INTERLOCUTORY
It must first be noted in relation to issue No. 5 that a “final judgment” and “interlocutory judgment” are not defined in any statute or the rules of court and must therefore be seen through case law as interpreted by the Courts. The test for determining whether a judgment or order is final or interlocutory is whether that judgment or order has finally and completely disposed of the rights of the parties in the case, so much so that if it is given for the Plaintiff it is conclusive against the Defendant and if it is given for the Defendant, it is conclusive against the Plaintiff, and no further reference can be made to the court in respect of the judgment or order. Falola V U.B.N Plc. (2005) 7 NWLR (pt. 924) 405; Omonuwa v Oshodin (1995) 2 NWLR (pt. 10) 924; Ogolo V Ogolo (2006) 5 NWLR (pt 972) 163. The above position of law does not derogate from the provision of section 318 of the constitution of the Federal Republic of Nigeria 1999 (as amended) which only defines and therefore reckons with “decision” in relation to courts not making a distinction between “Judgments” and “Rulings” in relation to “decisions”. The said section 318 of the constitution defines “decision” to mean —- “in the relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation”. The logic of the provision of section 318 of the 1999 constitution (as amended) is that both “Judgment” and “Rulings” are decisions of a court of law and therefore, I believe that tagging or labeling one for the other cannot be fatal to the proceedings of a Court of law. per. MOJEED ADEKUNLE OWOADE, J.C.A.
COURT: ABUSE OF COURT PROCESS; WHAT IS THE ABUSE OF COURT PROCESS AND THE CIRCUMSTANCES THAT WILL GIVE RISE TO ABUSE OF COURT PROCESS
It is granted that the concept of abuse of judicial process is imprecise and involves circumstances and situations of infinite variety and conditions. However, a common feature of it is the improper use of judicial process by a party in litigation to interfere with the due administration of justice. See Ugesi v Siki (2007) 8 NWLR (pt.1037) 452; Ogoejeofo v. Ogoejeofo (2006) 3 NWLR (pt. 966) 205. The circumstances that will give rise to abuse of court process include (a) instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues or a multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action or (b) instituting different actions between the same parties simultaneously in different Courts, even though on different grounds, (c) where two similar processes are used in respect of the exercise of the same right, for example, a cross-appeal and a Respondent’s notice or (d) where an application for adjournment is sought by a party to an action to bring to an application to court for leave to raise issues of fact already decided by a lower court; or (e) where there is no law supporting a Court process or where it is premised on frivolity or recklessness. See Opekun v. Sadiq (2003) 5 NWLR (pt. 841) 475; ANPP v Haruna (2003) 14 NWLR (pt. 841) 546. per. MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMED A. DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
H.R.H. OBA JIMOH OYEBISI FASEYE
(for himself and on behalf of Osuntedo Community via Ejigbo Osun State) – Appellant(s)
AND
1. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE OSUN STATE
2. COMMISSIONER FOR LAND AND PHYSICAL PLANING OSUN STATE
3. SURVEYOR GENERAL OSUN STATE – Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision (Ruling) of J.O. Ogunleye J. of the Osun State High Court delivered on 4th October 2013 in the Ejigbo Judicial Division. The antecedent to the action which led to this appeal was a criminal matter charge No. MEJ/3C/2011 then at Ejigbo in the Ejigbo Magisterial District of Osun State. The charge, between the Commissioner of Police V (1) Ajitena Isa Lawal (2) Adesina Asimiyu Isa Lawal was for unlawful entry into land and willfully destroying yams, palm trees and blocks contrary to section 81 and 451 of the Criminal Code of Osun State. In the course of the criminal trial, the prosecution tendered a previous judgment on a land matter in Suit No. HOG/19/86 and there arose the question of the relevance of the survey plans tendered by the parties in the said Suit No. HOG/19/86 to determine the extent of land owned by the contesting parties in suit No. HOG/19/96.
Meanwhile, in the same Chief Magistrate Court, Mr. Soji Oyetayo acting on the instructions of Oba Kamil Ajadi Ojelabi II (Olusongbe of Songbe) (apparently as an interested party-applicant) brought a motion on notice dated 22/8/2012 praying the court for an “order directing the Surveyor General of Osun State to determine the extent of the land in dispute in Survey Plan No. LAY/LD/009/87 prepared by Licensed Surveyor L.A. Animasaun and dated the 29th day of July 1987 which was used to determine the case in Appeal No. CA/I/3/90 decided by the Court of Appeal Ibadan on the 20th day of March, 1996”.
A counter affidavit to the above application was filed by the 2nd accused in charge No. MEJ/3C/2011 that is Alhaji Asimiyu Adesina, a subject of the Olosuntedo of Osuntedo (Oba Jimoh Oyebiyi Faseye II) (Claimant/Appellant). In a ruling based on the application of the Olusongbe of Songbe in a related suit No. MEI/M.6/2012, the learned Chief Magistrate in Ejigbo pronounced as follows:
“I have considered the application before the Court. I have equally perused the affidavit in support and the counter affidavit of the Respondent. It is my view that the interest of justice will be better served if the survey plans of the two communities used in deciding the case at the Court of Appeal Ibadan is considered by the Surveyor General of the state in determining the extent of the land of the two communities.
On the last adjourned date. I gave an oral advice that since the judgment of the Court of Appeal Ibadan is not in contention, that the two communities should approach the Surveyor General of the State with the dispute surveys relied upon by the upper Court to determine the case. In view of this, I hereby order as follows: The Surveyor General of Osun State is hereby directed to consider the two survey plans that is survey plan number LAY/LD/009/87 and survey plan number FA-12-130 which were the dispute survey plans the two communities involved in Appeal Number CA/I/90 and upon which the Court of Appeal based its judgment dated 20th day of March, 1996 in determining the boundary extent of the land of Osuntedo and Songbe Communities”.
Following the above order, the Surveyor General Osun State wrote to Mr. N.O. Sanusi of counsel to the Olosuntedo of Osuntedo to inform him of the court order and demanded some routine service fees for the project. He (Surveyor-General) nevertheless sent his men to the area in dispute to carry out the survey as directed by the learned Chief Magistrate.
Consequent on these developments, the claimant/Appellant – H.R.H Oba Jimoh Oyebisi Faseye (The Olosuntedo of Osuntedo) filed an originating summons on 9th April 2013 naming as Defendants (1) Attorney General and Commissioner for Justice, Osun State (2) Commissioner for Land and Physical Planning Osun State (3) Surveyor General, Osun State.
In the said originating summons, the Claimant asked for the determination of the following questions:
1. Whether, it is within the power of the office of Surveyor General, Osun State to determine or deal with Inter-Community boundary dispute (if any) within the Local Government Area, in Osun State, having regard to section 3, 5, 6, 7 and 8 of the Local Government and Community Boundaries Settlement Law, cap. 73 Law of Osun State 2003 and Section 10, 11, 12 and 13 of the Osun State Boundary Committee Law cap.77 Laws of State, 2013.
2. Whether the issue of title/ownership to land can be effectively, determined in the Magistrate Court having regard to section 20 of the Magistrate Court Law cap. 77 Laws of Osun State 2003.
3. Whether, the ruling of Magistrate Court sitting on 19th day of September, 2012 is to the effect, that the Surveyor General Osun State should determine the common boundary and/boundary dispute (if any) between Osuntedo town and Songbe town in Ejigbo Local Government Osun State rather than to determine the extent of the land in dispute in Suit No. HOG/19/86 between the claimant town and Songbe Town.
4. Whether an order of Court (if any) can confer on an officer of a state, to perform the duty or function which statutory (sic) provided for another officer or office in a state.
5. Whether statutory provision can be waived.
The application sought the following reliefs:
1. An order of this Honourable Court declaring that Surveyor General of Osun State or office of Surveyor General Osun State cannot determine or deal with inter-community boundary disputes.
2. An order of this Honourable Court declaring that, it is only Boundary settlement commission establish (sic) established under section 3 of the Local Government and Community Boundaries Settlement Law Cap. 73 Laws of Osun State and/or a Local Government boundary committee establish (sic) established under section 10 of the Osun State Boundary committee Law cap 91 laws of Osun State that statutory (sic) empowered to settle or deal with inter-community boundary dispute within a given Local Government in Osun State.
3. An order of this Honourable Court setting aside (if any) order of Court purporting to have empowered the surveyor General, Osun State, to determine any boundary between Osuntedo town and Songbe town, the two town (sic) towns having located (sic) with Ejigbo Local Government Area of Osun State.
4. An order of this Honourable Court restraining the Surveyor General, his agents, privies and anybody claiming through the Surveyor General from further entering the Osuntedo farmland, located at Osuntedo town for purpose of determining the common boundary and/or boundary dispute between Osuntedo town and Songbe town in Ejigbo Local Government Area of Osun State.
5. An order of this Honourable Court restraining the 3rd Defendant, that is, the surveyor General Osun State from making, producing or drawing any chart, sketch and/or map purporting for the demarcation of boundary between Osuntedo community and Songbe community all in Ejigbo Local Government Area of Osun State having not fall within the scope of the function or duty of the office of the Surveyor General of Osun State.
And for such further or other orders as this honourable Court may deem fit to make in the circumstance.
In support of the application, the Claimant/Appellant filed a 22 paragraph affidavit and attached Exhibits Nos “A” to Nos “J” to the application. He also filed a written address as required by Osun State High Court Amended (Civil Procedure) Rules 2008. The Respondents filed a counter-affidavit. The Appellant then filed a Further Affidavit and attached Exhibit NOS ‘P’ that is the Ruling of the Magistrate Court Ejigbo and a further written address on 27th May 2013. On 8th July 2013, Counsel adopted their respective written addresses and the case was thereby adjourned for judgment.
On 4th October 2013, the learned trial judge delivered his decision in a Ruling in the said Suit No. HEJ/4/2013 whereby he dismissed the claims of the Claimant/Applicant.
The reasoning of the learned trial judge in dismissing the Claimant’s claims could be found at page 121 of the records where he concluded thus:
“From all indications, the order made by the Learned Magistrate is the foundation and basis of this Originating Summons.
I agree with the Learned Counsel to the Respondents that if the Applicants Claimants were not satisfied with the order of the learned magistrate, he should have appealed against same. This is more so as orders of Court or Tribunal are not made in vain and as such a Court order must be obeyed. Please see Babington Ashaye V. Amag. Ent. Nig. Ltd. 2011 (pt. 1256) 10 NWLR page 479 at 540. The failure of the claimant to appeal the said order of the Magistrate is fatal to the Originating Summons. Apart from this the Claimant/Applicant failed to attach the record of proceedings of the Learned Magistrate in the said case before the order was made. He merely attached only the order of that court. This again is fatal. It is my humble opinion that since Originating Summons procedure is only suitable for proceedings in which questions of law rather than disputed facts are involved, looking at the facts, the procedure is not suitable. I therefore dismiss the claims of the Claimant Applicant as they are misconceived in law and an abuse of the process of this court.”
Dissatisfied with the above decision (Ruling) the Claimant/Appellant filed a Notice of Appeal (containing five grounds of appeal) before this court on 23/10/2013.
Briefs were filed and exchanged. The relevant briefs of argument for this appeal are:
(a) Appellant’s brief of argument dated and filed on 30/12/13.
(b) 1st – 3rd Respondent’s brief of argument dated 19/2/14 filed on 20/2/14 but deemed filed on 02/04/14.
(c) Appellant’s Reply brief dated 10/4/14 and filed on the same day.
Learned Counsel for the Appellant nominated five (5) issues for determination. They are:
1. Whether the learned trial judge was right when he said failure of the claimant to appeal against the order of the Magistrate court is fatal to the Originating Summon.
2. Whether the judge was justified in hording that the claimant merely attached order of the Learned Magistrate without attaching record of proceeding of that Magistrate court which he said is fatal to Originating Summons.
3. Whether having regard to the affidavit evidence and questions submitted for determination in this case, the learned trial judge was right to have said that, originating summons is not suitable for this suit.
4. Whether the Claimant/Appellant suit constitute an abuse of process.
5. Whether the decision of the learned trial judge delivered on 4th October 2013 was final judgment or interlocutory decision of the Court below.
Learned Counsel to the 1st – 3rd Respondents in like manner formulated five (5) issues as follows:
(i) Whether failure of the Appellant to appeal against the order of the Chief Magistrate Court in contention is fatal to the Originating Summons brought before the trial High Court.
(ii) Whether it is also fatal to the said Originating Process for the Appellant not to have attached as Exhibits the Record of proceeding of the Magistrate Court complained of.
(iii) Whether Originating summon is suitable for the commencement of this suit considering the circumstances of the case.
(iv) Whether the suit as presently constituted is an abuse of Court process.
(v) Whether the trial court was right in tagging its decision as “Ruling” and not “Judgment”.
I have carefully gone through the record of proceedings, and the briefs of argument in this case. I am of the humble opinion that Appellant’s Issue No. 5 does not reflect the formulation in Ground 5 of the Notice and grounds of appeal on which issue No. 5 was based.
Consequently and in the interest of justice, this appeal shall be decided by Issues 1 – 4 as formulated by the Appellant and Issue 5 as formulated by the Respondents and which adequately reflects the complain in ground 5 of the Appellant’s Notice and grounds of appeal.
On issue 1, Learned counsel for the Appellant submitted that both the claimant/Appellant and the Respondents are not parties at the Magistrate Court Ejigbo in Osun State in charge No. MEJ/3c/2011 before the said Magistrate Court Ejigbo in Osun State. That the Claimant Appellant who happens to be the traditional ruler of Osuntedo town in Ejigbo Local Government Area of Osun State through his lawyer got a letter from the office of surveyor General Osun State, the 3rd Respondent in this appeal demanding for sum of N1,482,250.00 (one million, four hundred and eighty two thousand, two hundred and fifty naira only) for purpose of carrying out the boundary demarcation between the Appellant town that is Osuntedo town and Songbe community. That by this action, the Claimant Appellant sought for interpretation of the relevant Laws of Osun State governing boundary demarcation in the state. That, such laws include the Local Government and Community Boundaries Settlement Law cap.77 Laws of Osun State 2003, Survey Law cap. 154 Laws of Osun State 2003.
Learned Counsel submitted that the Claimant/Appellant need not appeal against the order of the magistrate court, because the Claimant/Appellant was not a party before the said Magistrate Court. And, also because the order of the said Magistrate Court is to the effect that, 3rd Respondent should determine the extent of land in suit No. CA/1/3/90 and not to determine the common boundary of the two communities i.e. Osuntedo Community which the Appellant represented and Songbe Community all in Ejigbo Local Government area of Osun State.
Learned counsel referred to the provision of section 6 (6) (b) of the constitution of the Federal Republic of Nigeria 1999 and also to the case of Alhaji Ramonu Musendiku V. Fatai Liadi & 8 Ors (2012) All FWLR (pt. 611) 1609 at 1619 and submitted that the uninhibited right of every person to go to court seeking a determination of any question as to his civil rights and/or obligations is guaranteed under the said constitution and that it is not the law that until such person appeal against the decision of which he is not even a party thereto before he can exercise such right or approach the Court for determination.
Learned Counsel further emphasized that the Appellant in this appeal was not a party to the criminal trial in charge No. MEJ/3C/2011 and was not also a party to the application in suit no. MEJ/M.6/2912 that was brought during the hearing of the criminal trial.
Learned Counsel for the Respondents on the other hand submitted on Issue No. 1 that the failure of the Appellant to appeal against the order of Chief Magistrate Court made on the 19th day of September 2012 in Charge No. MEJ/3c/11 which is the foundation/basis of the Originating Summons is fatal to the case of the Appellant.
Learned Counsel further submitted that court orders are not made in vain and as such a court order must be obeyed until the aggrieved party who is not satisfied appeals the order. That in the instant case, the Appellant even complied with the said order by submitting their dispute survey plans along with that of the Respondent to the Surveyor General of Osun State. And, that the surveyor General not minding the failure of the parties to comply with the financial implications of the process went ahead to interpret and determine the boundary extent of the two affected communities (Osuntedo and Songbe) as reflected in the judgment of the Court of Appeal an CA/1/3/90 delivered on 20th day of March 1996.
Learned Counsel referred to the case of Babington Ashaye V Emmang Ent. Nig. Ltd. (2001) (pt. 1256) 10 NWLR 479 at 540.
The Claimant Appellant in this case has brought an action by way of Originating Summons in which he sought interpretation of laws but also complained among others for “An order — setting aside (if any) order of the Court purporting to have empowered the Surveyor General, Osun State to determine any boundary between Osuntedo town and Songbe town, the two towns having location within Ejigbo local Government Area of Osun State.”
It is obvious from a holistic reading of the questions for determination, the prayers in the Claimant’s/Appellant’s Originating Summons and the attached Exhibits that the real issue in controversy between the parties arose in the first instance from the criminal charge No. MEJ/3C/2011 and perhaps more immediate the Ruling of the Learned Chief Magistrate on the motion on Notice in suit No. MEJ/ME/2012.
The above position of the parties is better confirmed by the affidavit and further and better affidavit in support of the substantive matter by the Claimant/Appellant himself. For example, paragraphs 19 and 20 of the affidavit in support of the Originating Summons read thus:
19. That, I later reached my Solicitor office at Oshogbo on the same 28th March 2013 and my Solicitor N. Olalekan Sanusi informed me in his office, at No. 20 Owode Street, Igbona Oshogbo at about 3.30p.m and I am verily believed him as follows:
(a) that, the order of Magistrate Court is to determine extent of land in dispute in Suit No. HOG/19/86.
(b) that, even if my town and Songbe town is indeed fight (sic) over the boundary between us, then the law specifically provide for particular entity for that purpose and not Surveyor General office.
(c) that, it is not part of Surveyor General duty (sic) or function to determine inter community boundary dispute (if any) within the local government, like my town in Ejigbo Government Area, of Osun State.
(d) that, the matter before the Magistrate Ejigbo is a criminal matter and that, the said Court cannot determine the title or ownership of the land.
(e) that, this honourable Court has power to restrain the said surveyor General and his officers from further entering Osuntedo land for purpose of determine (sic) the common boundary and/or boundary dispute between Osuntedo and Songbe community (sic) which is not in dispute for now.
(f) that, it is committee headed by vice chairman of Ejigbo Local Government Council, that, saddle (sic) with responsibility of determine (sic) Inter-community boundary dispute (if any) within Ejigbo Local Government in Osun State and not the surveyor General of the state.
20. That, the said officers from the surveyor General officer did not even bother to invite us or our surveyor who drew, prefer and signed our dispute survey plan for them to know the extent and particulars of the land in dispute in suit No. HOG/19/86 as requested by the Magistrate Court Ejigbo.
Also, by paragraphs 12, 13 and 14 of the further and Better Affidavit, the Claimant Appellant deposed as follows:
12. That, my counsel Mr. N.O. Sanusi informed me at my palace Osuntedo on 27th May 2013 at about 2.30p.m and I verily believed him as follows:
i. that, it is not true that the purport of Magistrate Court order is to determined (sic) issue of possession which never canvassed before the Chief Magistrate Court Ejigbo, and whose jurisdiction is to determined (sic) criminal matter and not land matter.
ii. that, whether title or possession over the land it is only this Court with other Court clothe with jurisdiction to determine same and not Chief Magistrate Court.
iii. that, none of the parties before the Chief Magistrate Court Ejigbo canvassed issue of the community boundary.
13. That, I know as a fact, suit No. HOG/19/86 now Appeal No. CA/1/3/90 has nothing to do with my present farmland where I am farming along with my subjects, now which complainant in charge No. MEJ/3C/11 now sent his bricklayer to construct building upon.
14. That, if we are fighting over boundary dispute both community have counsel who can apply to appropriate quarter who are saddle with responsibility to determine same.
Now, in general terms, Originating Summons is used for non-contentious actions, that is, those actions where facts are not likely to be in dispute. See Inakoju V. Adeleke (2007) 4 NWLR (pt. 1025) 423; Osunbade v Oyewunmi (2007) All FWLR (pt. 368) 1004.
By the same token Originating Summons is not meant as a substitute for an appeal on issues that have already been decided by a court of law.
In the instant case, the complaint of the Appellant could in the circumstances of the case only be remedied by an appeal as an interested party or perhaps by certiorari proceedings to quash the decision of the learned Chief Magistrate as it affected him (Claimant/Appellant).
Another way of approaching the same issue 1 is to say that the Claimant/Appellant has a cause of action but not a right of action. This is because a cause of action differs from a right of action. A cause of action constitutes a set of facts or fact which gives a person a right to claim a judicial redress where he is wronged. A right of action, on the other hand, entitles him to maintain an action on the wrong alleged with a view to getting a judicial redress.
See Yusuf v. Co-Op. Bank Ltd (1994) 7 NWLR (pt. 359) 676; U.B.A Ltd v. Micheal O. Abimbolu & Co. (1995) 9 NWLR (pt. 419) 371.
In the instant case, there are facts and circumstances which show that the Appellant was wronged but his cause of action is circumscribed as he does not have a right of action to redress by the commencement of a fresh proceeding by way of Originating Summons having regard to the fact that his cause of complaint had been dealt with rightly or wrongly by a court of competent jurisdiction.
To allow a fresh action on the subject matter in the circumstance in which the Claimant Appellant found himself will certainly open a floodgate to litigation which would not augur well for the administration of justice.
The rationale here is akin to the same public policy which does not allow or encourage the relitigation of an issue or cause of action that has been decided by a court of law between the same parties or their privies. The doctrine which dresses in the latin maxims “interest rei publicae ut sit finis litium” and “nemo debet bis vexavi proccadem causa” is rooted in public policy namely that it is for the common good that there should be an end to litigation.
I therefore agree with the learned Counsel for the Respondent that the failure of the Claimant to appeal the said order of the magistrate is fatal to the Originating Summon.
Issue 1 is resolved against the Appellant.
On Issue 2, Learned Counsel for the Appellant submitted that the Appellant submitted that one of the Reliefs sought at the lower court by the Claimant/Appellant is for an order setting aside order of the Magistrate Court purporting to have empowered the 3rd Respondent to enter the Claimant/Appellant’s town for purpose of determining the boundary between the Appellant town and the adjourning town i.e. Songbe town. That, because of this relief, the Appellant attached the Ruling of the Magistrate Court which contained the order sought to be set aside. That the Appellant did not seek for setting aside of proceeding of the Magistrate Court, which is a criminal matter to warrant him to attach proceeding of the Magistrate Court.
He submitted that since the Appellant exhibited the purported ruling of the Magistrate Court containing the order sought to set aside, the motion sought to set aside, the motion on notice and counter affidavit which was used before the said order was granted, the Appellant has placed sufficient materials before the lower Court to exercise jurisdiction to set aside.
He referred to the case of Towoju V. Governor of Kwara State. (2006) All FWLR (pt. 321) 1365 at 1387.
Learned Counsel for the Respondents simply submitted without more that the failure of the Appellant to attach the record of proceedings of the trial Magistrate Court as Exhibit before the High Court is also fatal to the Originating Summons.
It flows logically from my decision on issue 1, that Issue 2 be resolved against the Respondents. This is because, if the Claimant/Appellant could not in fact pursue his cause of action via the procedure of Originating Summons, any holding on whether or not he (Appellant) was bound to attach the record of proceedings of the Chief Magistrate Court becomes super fluous and unnecessary.
Issue 2 is resolved against the Respondents.
On issue 3, Learned Counsel for the Appellant submitted that the main issue in this case is the construction of the statutes which regulates the Issue on boundary demarcation of two towns in a given Local Government in Osun State. Counsel referred to the case of Pam V Mohammed (2008) All FWLR (pt. 436) 1 at 1933 for the view that it is not the law that once there is dispute on facts, the matter should be commenced by Writ of Summons. That the law is that the dispute on facts must be substantial, material, affecting the live issues in the matter. But, that where disputes are peripheral, not material to the live issues, an action can be sustained by originating summons. Because, after all, there can hardly be a case without facts. Facts make a case and it is the dispute in the facts that give rise to litigation.
He urged us to hold that Originating Summons is appropriate in the instant case contrary to the position taken by the learned trial judge.
On Issue 3, Learned Counsel for the Respondents submitted that Originating Summons procedure is not suitable for initiating this suit in the court below.
I do agree with the learned trial judge in the instant case that Originating Summons procedure is not suitable for the suit instituted by the Appellant. The reason for this is not merely because there are issues of disputed facts as suggested by the learned trial judge but more significantly in terms of my decision on issue No. 1 because the claimant Appellant has a cause of action without a right of action. I adopt my decision on Issue No. 1 to resolve Issue No. 3 and accordingly Issue No. 3 is also resolved against the Appellant.
In arguing that the suit does not constitute abuse of Court process, Learned Counsel for the Appellant submitted on Issue No 4 that abuse of court process may occur when a party uses judicial process to harass, irritate or to annoy his opponent, particularly when two similar processes are used against the same party in respect of the exercise of the same right and subject matter. He submitted that the Appellant in this case only sought for what seems not clear to him as to who has the competence to determine the boundary dispute (if any) or boundary demarcation in a given Local Government between two towns in Osun State.
He referred to the cases of Ukachukwu v UBA (2005) 18 NWLR (pt. 965) 1; African Insurance Corporation v JDP construction Ltd (2003) 2 SCNJ 28; Accord Party V Governors of Kwara State (2011) All FWLR (pt. 555) 220 at 300.
Counsel submitted that what emerges from the above judicial authorities is that to constitute abuse of court process a plaintiff must Institute more than one suit on the same subject matter, the same issue (s) and between the same parties with intent to annoy, irritate and in a reckless and frivolous manner for the sole purpose of obstructing the efficient administration of justice. He submitted that in the instant case, neither the Appellant nor the Respondents were parties to the criminal trial at the Chief Magistrate Court Ejigbo, Osun State. Neither were they parties to the subsequent application which directly led to the Ruling in which the surveyor General was ordered to measure boundaries between Songbe and Osuntedo.
Counsel finally submitted on this issue, that the case is on construction or interpretation of statutes hence the issue of abuse of Court process does not arise at all because the elements or criteria for abuse of court process are not present in the circumstance.
Learned Counsel for the Respondents on the other hand referred to the cases of Seven Up Bottling Company Ltd. v Abiola (1996) 7 NWLR (pt. 463) 714; Okafor v A.G. Anambra State (1991) 6 NWLR (pt. 200) 659 and Pavex International Co. Ltd. V JBWA (1994) 5 NWLR (pt. 347) 685 and submitted that abuse of process equally applies to a proceeding which is wanting in bonafide and is frivolous, vexatious and oppressive.
That the Appellants and the complainants having complied with the order of the Chief Magistrate Court Ejigbo of 19th September, 2012 by submitting their respective dispute surveys on the land in dispute to the Surveyor General, Osun State and the later having completed the survey as ordered by the court, the suit by the Claimant Appellant constitutes abuse of process.
In deciding Issue No. 4, I do not have any hesitation in agreeing with the Learned Counsel for the Appellant that the Claimant’s Appellant’s suit did not constitute abuse of process. It is granted that the concept of abuse of judicial process is imprecise and involves circumstances and situations of infinite variety and conditions. However, a common feature of it is the improper use of judicial process by a party in litigation to interfere with the due administration of justice.
See Ugesi v Siki (2007) 8 NWLR (pt.1037) 452; Ogoejeofo v. Ogoejeofo (2006) 3 NWLR (pt. 966) 205.
The circumstances that will give rise to abuse of court process include (a) instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues or a multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action or (b) instituting different actions between the same parties simultaneously in different Courts, even though on different grounds, (c) where two similar processes are used in respect of the exercise of the same right, for example, a cross-appeal and a Respondent’s notice or (d) where an application for adjournment is sought by a party to an action to bring to an application to court for leave to raise issues of fact already decided by a lower court; or (e) where there is no law supporting a Court process or where it is premised on frivolity or recklessness.
See Opekun v. Sadiq (2003) 5 NWLR (pt. 841) 475; ANPP v Haruna (2003) 14 NWLR (pt. 841) 546.
In the instant case, the Claimant Appellant merely pursued his cause of action by proceeding in an unrightful manner having regard to the fact that the Originating Summons procedure is not suitable nor available to a litigant who claims to be aggrieved by a judgment or order of a competent court of law. This, on its own cannot constitute abuse of the judicial process.
Issue No. 4 is resolved in favour of the Appellant.
On issue No 5, Learned Counsel for the Appellant submitted the decision by the learned trial judge of 4th October 2013 is a Judgment rather than Ruling as the court termed same. This, he said is because the decision of the said learned trial judge is not on interlocutory application but on the Originating Summons employed by the Appellant. That the parties adopted their respective written addresses on 8th July 2013 and the trial judge adjourned for Ruling rather than Judgment. Counsel argued that since the decision of the Court is on substantive suit brought by Originating Summons and not on mere application, the decision ought to be termed Judgment” and not “Ruling”.
He referred to the cases of Kasandudu V Ultimate Petroleum Ltd (2008) All FWLR (pt. 417) page 155 at 177; Odutola V Oderinde (2004) All FWLR (pt. 217) 615.
Learned Counsel for the Respondent submitted on issue No. 5 that by virtue of order 3 Rule 7 of Osun State High Court Amended (Civil Procedure) Rules 2008, the trial Court shall not be bound to determine any such question of construction if in his opinion it ought not to be determined on Originating Summons, but may make any such orders as he deems it. That, given the above cited order of Osun State High Court Civil procedure Rules and the fact that the criminal matter from which this matter arose was/is still pending before the Chief Magistrate Court, the High Court was right to have tagged his decision as “Ruling” instead of “Judgment”
It must first be noted in relation to issue No. 5 that a “final judgment” and “interlocutory judgment” are not defined in any statute or the rules of court and must therefore be seen through case law as interpreted by the Courts. The test for determining whether a judgment or order is final or interlocutory is whether that judgment or order has finally and completely disposed of the rights of the parties in the case, so much so that if it is given for the Plaintiff it is conclusive against the Defendant and if it is given for the Defendant, it is conclusive against the Plaintiff, and no further reference can be made to the court in respect of the judgment or order. Falola V U.B.N Plc. (2005) 7 NWLR (pt. 924) 405; Omonuwa v Oshodin (1995) 2 NWLR (pt. 10) 924; Ogolo V Ogolo (2006) 5 NWLR (pt 972) 163.
The above position of law does not derogate from the provision of section 318 of the constitution of the Federal Republic of Nigeria 1999 (as amended) which only defines and therefore reckons with “decision” in relation to courts not making a distinction between “Judgments” and “Rulings” in relation to “decisions”.
The said section 318 of the constitution defines “decision” to mean —- “in the relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation”.
The logic of the provision of section 318 of the 1999 constitution (as amended) is that both “Judgment” and “Rulings” are decisions of a court of law and therefore, I believe that tagging or labeling one for the other cannot be fatal to the proceedings of a Court of law.
Issue No. 5 is resolved against the Appellant.
The appellant in this appeal nominated five (5) issues. Issues Nos. 2 and 4 were decided in favour of the Appellant while issues Nos. 1, 3 and 5 were decided against the Appellant.
Consequently, this appeal is allowed in part. However, the substance of the appeal lies in the issues resolved against the Appellant to the effect that while the Claimant appellant may indeed have a cause of action, he does not possess the correlate right to institute a fresh action by way of Originating Summons.
For this reason, the Claimant’s/Appellant’s action in suit No. HEJ/4/2013 was incompetent and ought to have been struck out rather than been dismissed by the learned trial judge.
Consequently, the order of dismissal by the learned trial judge is hereby set aside and substituted with an order striking out Suit No. HEJ/4/2013 in the Court below.
Parties to this appeal are to bear their respective costs.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have had the benefit of reading in draft the leading judgment of my Lord, Mojeed Adekunle Owoade JCA, and agree that the appeal be allowed and an order striking out the suit No. HEJ/4/2013 as filed in the trial court be entered in substitution of the order of dismissal as made by the trial Judge.
My Lord had so clearly stated the facts, captured and treated the submissions and applied the law such that I cannot do better.
JAMES SHEHU ABIRIYI, J.C.A.: I agree.
Appearances
N. Olalekan Sanusi Esq.For Appellant
AND
Ayoola Babalola Esq. Principal State Counsel Min. of Justice OshogboFor Respondent
