HIS HOLINESS OLUMBA OLUMBA OBU V. APOSTLE EKANEM B. EKANEM & ORS.
(2010)LCN/3786(CA)
In The Court of Appeal of Nigeria
On Thursday, the 13th day of May, 2010
CA/C/131/09
RATIO
ACTION: MEANING OF AN ISSUE IN DISPUTE
An issue in dispute between the parties is an assertion of a right, claim or demand on one side, met by contrary claims or allegations on the other side. See Erhunmwunse v. Ehanire (2003) 13 NWLR (Pt 837) 353 at 373. The issue must be specific and not left to speculation. “ETC” and other suits between the parties, pending and disposed of will send the Court on a wildgeese chase. PER NWALI SYLVESTER NGWUTA, J.C.A.
COURT: DUTY OF A COURT IN DETERMINING A PRELIMINARY OBJECTION
In determining a preliminary objection to the hearing of a suit the Court must limit itself to the writ of summons and the statement of claim. PER NWALI SYLVESTER NGWUTA, J.C.A.
COURT: THE CONCEPT OF ABUSE OF COURT PROCESS
The concept of abuse of Court process is not amenable to a precise definition. It encompasses situations and circumstances of infinite variety but it has as a common feature: improper use of judicial process to the irritation and annoyance of the adverse party with adverse effect on efficient and effective administration of justice. See Agwasim v. Ojichie (2004) 10 NWLR (Pt 882) 613 at 624-625. It has an element of malice. See Amaejfula v. State (1988) 2 NWLR (Pt.75) 156 at 177 (sic). It will rise in a multiplicity of actions on the same subject matter against the same Appellant on the same issue. See Saraki v. Kotoye (1992) 9 NWLR (Pt.75) 156 at 188, Okorodudu v. Okorodudu (1977) 3 SC 21. Implicit in the above is that the entire suits constituting a multiplicity of suits are instituted by the plaintiff. PER NWALI SYLVESTER NGWUTA, J.C.A.
JUSTICES
JAFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
JEAN OMOKRI Justice of The Court of Appeal of Nigeria
Between
HIS HOLINESS OLUMBA OLUMBA OBU Appellant(s)
AND
1. APOSTLE EKANEM B. EKANEM
2. QUEEN IBUM OLUMBA OBU Respondent(s)
NWALI SYLVESTER NGWUTA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Ita J. of the Cross River State High Court of Justice sitting at Calabar. The ruling was delivered in suit No HC/388/2008 on 30th day of March 2009.
In the spate of protracted litigations in various Courts in the Land involving the leadership of the Brotherhood of Cross and Stars world wide the Plaintiff commenced an action by way of originating summons, seeking the interpretation of some sections of the Constitution of the Federal Republic of Nigeria 1999 and S.51(1) of the Vexatious Actions Act 1896. In the light of the decision of Ita J. in suit No HC/106/2008 and Rules 15(3) (b), 24(3) and 32 (3) (1c) of the Rules of Professional Conduct for Legal Practitioners the Plaintiff sought declaratory and injunctive reliefs as well as the sum of N15,000,000.00 general damages against the Defendants for instituting, maintaining or continuing vexatious or frivolous actions against the Plaintiff notwithstanding the decision of Ita J. in suit No HC/106/2008. Upon service on them of the originating processes the defendants entered a conditional appearance and subsequently filed a notice of preliminary objection to the suit on grounds that:
“(a) There is no Plaintiff. The Plaintiff in the suit is unknown or at most, the name is distorted and no consent/authority to use or sue by the name misrepresented the masquerader’s name is Bassey Olumba Obu or Roland Olumba Obu.
(b) There is no cause of action whatsoever.
(c) Multiplicity of suits as in FHC/CA/CS/69/2008, HC/378/07, HC/400/07 etc.
(d) The present suit is non-justiceable and absurd.”
(See page 50 of the records). This was followed by a 10 paragraphs affidavit in support.
In what is titled, further and better Affidavit of His Holiness Olumba Olumba Obu (perhaps in reference to the 11 paragraph affidavit in support of the originating summons) the plaintiff deposed to a 4 paragraph affidavit and exhibited in paragraph, 3 there of Exhibits HH1, HH2, HH3, HH4 and HH5 as processes filed by the defendants against him in his name as His Holiness Olumba Olumba Obu.
Learned Counsel for the parties filed written addresses with the Defendants filing a rejoinder on point of Law. Learned Counsel adopted their addresses on 16/3/09 and the Court adjourned the matter to 30/3/09 for ruling.
In the ruling delivered as scheduled the trial Court held:
“I agree with Counsel for the Defendants that if 2 (two) actions are commenced the 2 (sic) second asking for a relief which may have been obtained in the first, that the 2(Sic) second action is prima facie Vexations and Constitutes an abuse of the process of Court. Exhibit HH1 attached to the further and better affidavit filed on 11th February, 2009 has its no 1 claim as “N10.000.00 damages for instigating frivolous suit.” Looking at Exhibits HH2, HH3, HH4 and HH5 I am of the view that the declaration herein could, for completed cases and for pending cases be exacted in any of Exhibits HH1-HH5. The present suit therefore constitutes abuse of judicial process and is hereby dismissed.”
See, pages 95-96 of the records.
Aggrieved by the ruling the Appellant (then Plaintiff) appealed to the Court on two grounds from which the following lone issue was distilled for resolution:
“Whether having regards to the nature of Appellant’s action when the cause of action arose and the material before Ita J. was correct in holding that Appellant’s suit (HC/388/2008) constituted an abuse of judicial process in the light of pending and previous suits litigated between the same parties?”
In their brief of argument the Respondent sought a resolution of the following issue:
“Whether the Learned trial Judge Eyo Ita J. erred in declaring that the Plaintiff/Appellant’s case as constituted in HC/388/2008 was abuse of Judicial process with regards to dispensed and pending suits between the parties.”
In substance there is hardly any difference between the Appellant’s issue and that presented by the Respondents in their brief of argument. I will therefore determine the appeal on the issue in the Appellant’s brief.
In his argument in his brief of argument Learned Counsel for the Appellant drew attention to the ground of objection upon which the trial Court declared suit No HC/388/2008 abuse of process of Court:
“(C) Multiplicity of suits as in FHC/CA/CS/69/2008 (Sic), HC/373/07, HC/400/07 etc” and submitted that the trial Court was limited to a consideration of whether or not the subject matter and parties in the listed suits are the same as in suit No HC/388/2008. Taking the three suits seriatim, Learned Counsel contended that the subject matter and parties in suit No FHC/CA/CS/69/2008 were different from the subject matter and parties in HC/388/2008. In HC/373/07 the reliefs sought as per the statement of claim are not the same as the reliefs in HC/388/2008 and in HC/400/07 the reliefs are neither similar nor identical with the reliefs in HC/388/2008. He said that the Respondents exhibited in their affidavit in support of their notice of preliminary objection drawn up orders in suits Nos HC/10/2004, p.58 of records, HC/1254/2006 (P.59), HC/501/2003 (P.60) and FHC/HC/CV/508/2002 (p.61) and relied on them in their argument that suit No HC/388/2008 constituted abuse of process at pp 74-77 of the records. Learned Counsel submitted that the parties were not the same as in suit No HC/388/2008 adding that the Respondents failed to exhibit the writ of summons and statements of claim in the said suits to enable the trial Court verify their claim that the reliefs therein claimed were the same as the reliefs in HC/388/2008.
Counsels said the reliefs set out in FHC/HC/CV/508/2002 and the parties therein are different from the parties and reliefs sought in suit No. HC/388/2008. Learned Counsel referred to Messrs No Scheep Vaatmu Undor Willie Mstad v. The MV “S Araz” Karay Shipping and Trading Ino (Owners of the MV.”S Araz (2000) 12 SC (Pt.1) 164 at 205-206, Okafor vs. A.G. Anambra State (1991) 6 NWLR (Pt.200) 659 and submitted that in the light of the claims and parties in the listed suit No. HC/388/2008 did not constitute abuse of process of Court. He referred to Henderson v. Henderson (1943) 3 Hare, 100 at 114, Yat Tung Investment Co. Ltd. v. Dao Heng Bank Ltd. (1975) A.C. 581 at 589 – 590, “Piecemeal Litigation” by Awogu JCA (as he then was) P.55, Udo v. Etok and Ors. (1934) 11 NWLR 136 Otuya & Anor v. Gwato Nig. Ltd. (1977) NCLR 606 and submitted that the principles expatiated in the said cases do not apply to the facts in suit No HC/388/2008. He argued that the suits Exhibits HH1-HH5 were filed by the Respondents against the Appellant who could claim the reliefs in HC/388/2008 in the said suits by a counter claim only and since a counter claim is separate and distinct from the main claim it can not constitute an abuse of process to file a separate action.
He argued that the nature of suits Nos HH1-HH5 Vis-a-vis suits No HC/388/2008 excludes a counter-claim. Counsel pointed out that some of the suits referred by the trial Court are declared incompetent and so there can be no counter-claim founded on an incompetent suit. In any case counsel argued that the cause of action in HC/388/2008 arose upon the decision of Ita J. that the power of Attorney upon which the several suits were brought did not vest the Respondents with power to initiate the actions. He said the Appellant did not have a cause of action at the pendency of suits Nos HH1-HH5 and Appellant could not have exacted the remedy sought the latter suit No HC/388/08 in the early suits.
Learned Counsel argued that the Appellant’s exhibits suit No HH1-HH5 only go to show that the Respondents accepted the name of the Appellant as His Holiness Olumba Olumba Obu and that the Respondents relied only on HH3 in their preliminary objection.
In conclusion Learned Counsel submitted it was wrong in law for Ita J. to hold that suit No HC/388/2008 is abuse of process and argued the Court to allow the appeal and set aside the ruling of the lower Court.
In his own brief of argument Learned Counsel for the Respondent reproduced the trial Court’s ruling on page 75 of the records and sought to justify the ruling on the alleged knowledge of the cases gained by the trial Judge who handled them. Learned Counsel wondered how “in the face of over fifteen suits in different High Court in Calabar, Port Harcourt, Abuja etc how can the subject matter between same parties be different when all the suit revolves around money, property, power and control.”
He said each suit centres on power tussle between the Appellant and his sister 2nd Respondent over the Brotherhood of the Cross and Star and since the trial Judges in Calabar know the historical background of the cases none of them could be deceived by the colouration of the suits with any design toga or gloves. Counsel faulted as an attempt to mislead the Court the argument
“that all the numerous suits spread across Courts in Nigeria does not amount to abuse of process because they are not similar but different in nature.”
He relied on Okafor & ors v. A.G Anambra State & 4 ors (1991) 6-9 NCLR 108 at 110 H.8 for the concept of abuse of process. He referred to FHC/CA/CS/69/2008 and HC/10/04 wherein the Appellant sued the 2nd Respondent as Queen Ibum Olumba Obu and Helen Johnson Udoh respectively so as to cover up the fact that he sued the same person in the two suits. He referred to FCT/HC/CV/508/2002 and said it is contemptuous and a naked abuse of Court processes for the Appellant who was restrained by the Court in Abuja from using the name “Olumba Olumba Obu to return to Calabar to sue in the same name. Counsel referred to HC/388/2008 and argued that the Appellant conceded that the issue he canvassed in the suit had been determined in extent and scope by the same trial Judge in HC/106/08 and this according to Counsel is abuse of process. He referred to FHC/CA/CS/69/08 which he said was filed less than one week before HC/388/08 and said that while the former sought to restrain the Respondents from suing on the power of Attorney the latter sought a cancellation of the same power of Attorney and argued that the two reliefs on the power of Attorney could have been claimed in one suit.
Learned Counsel ran down a list of cases from (a) to (m) and said the suits are similar to HC/388/2008 as each touches on the power tussle between the parties. He said he provided the particulars and writ of summons in the suits to enable the Court determine that the reliefs and parties are the same with HC/388/2008. He maintained that the Appellant could enforce the judgment in HC/106/08 or exact his reliefs in the pending cases as determined by the trial Court. He argued that the trial Court having struck out suit No HC/106/2008 based on the power of Attorney it would amount to double compensation to grant the reliefs in HC/388/08, adding that the declarations sought in HC/388/08 had been already granted in HC/106/08 Learned Counsel urged the Court to dismiss the appeal with substantial costs.
In his reply brief Learned Counsel for the Respondents replied to allegations bordering on impropriety contained in the Respondents brief. He then replied seriatim to all the arguments in the Respondent’s brief which he described as hollow and devoid of any legal substance. He urged the Court to uphold his own argument.
The ground of preliminary objection upon which the trial Court dismissed the Appellant’s suit as abuse of process of Court is “Multiplicity of suit as in FHC/CA/CS/69/2008, HC/373/07, HC/400/07 etc.”
In the issues in the briefs of argument Learned Counsel referred to unspecified cases between the parties disposed of and pending. In the preliminary objection the trial Court, by the use of “etc”, was left on an open ended track. The same thing was done in the briefs by the reference to cases between the parties, pending and disposed of.
In resolving the issue in this appeal I will limit myself to the three cases listed in the 3rd ground of preliminary objection and ignore the words ‘etc’ which implies other cases between the parties but not included in the list as well as reference to unnamed cases between the parties whether pending or disposed of. An issue in dispute between the parties is an assertion of a right, claim or demand on one side, met by contrary claims or allegations on the other side. See Erhunmwunse v. Ehanire (2003) 13 NWLR (Pt 837) 353 at 373. The issue must be specific and not left to speculation. “ETC” and other suits between the parties, pending and disposed of will send the Court on a wildgeese chase.
In determining a preliminary objection to the hearing of a suit the Court must limit itself to the writ of summons and the statement of claim.
The objection is to the suit as it is constituted in the writ and statement of claim. Subsequent or additional processes filed by the plaintiff and any process filed by the defence other than the notice of preliminary objection cannot be considered in the determination of whether to sustain the objection or deny it it therefore fellows that the suits marked Exhibits HH1-HH5 introduced by the Appellant in paragraph 3 of answer to the issue of the name of the Appellant are not material to the determination of the preliminary objection. The Court was therefore in error in dismissing the suit as abuse of process of Court based on what claim the Appellant could have made in suits marked Exhibits HH1-HH5 whether pending or determined.
The said order dismissing the suit No HC/388/2008 is hereby set aside as wrong in law. The trial Court ought to have limited its consideration to the three cases specifically stated in the 3rd ground of objection. Be that as it may rather than send back the case for hearing on the issue de novo, I will invoke the power of the Court under S.15 of the Court of Appeal Act 2004 to determine the preliminary objection on the material available to the Lower Court.
The concept of abuse of Court process is not amenable to a precise definition. It encompasses situations and circumstances of infinite variety but it has as a common feature: improper use of judicial process to the irritation and annoyance of the adverse party with adverse effect on efficient and effective administration of justice. See Agwasim v. Ojichie (2004) 10 NWLR (Pt 882) 613 at 624-625. It has an element of malice. See Amaejfula v. State (1988) 2 NWLR (Pt.75) 156 at 177 (sic). It will rise in a multiplicity of actions on the same subject matter against the same Appellant on the same issue. See Saraki v. Kotoye (1992) 9 NWLR (Pt.75) 156 at 188, Okorodudu v. Okorodudu (1977) 3 SC 21. Implicit in the above is that the entire suits constituting a multiplicity of suits are instituted by the plaintiff.
Though the frontier of the concept of abuse of process of Court appears not closed I do not subscribe to the view expressed by the trial court that suit no. HC/388/2008 constitutes abuse of process because
“I am of the view that the declarations sought herein could for completed cases and can, for pending cases be exacted in any of the exhibits HH1-HH5.”
See page 96 of the records.
The first step is to examine the parties, the subject matter and issues in suit No HC/388/2008 and compare them with the parties subject matter and issues in each of suits Nos. FHC/CA/CS/69/2008, HC/373/07 and HC/400/07 listed in the 3rd ground of objection. See Saraki v. Kotoye (supra).
I will start with a table showing the parties in suit No. HC/388/08 alleged to constitute abuse of Court process and the three cases FHC/CA/CS/69/08, HC/373/07, and HC/400/07 on the basis of which the allegation was made.
S/NO SUIT NO PLAINTIFF(S) DEFENDANT(S)
1. HC/388/2008 Olumba Olumba Obu Apostle Ekanem E. Ekanem and Queen
Ibum Olumba Obu
2/ FHC/CA/CS/69/2008 Registered Trustees of Helen Johnson Udo aka Queen Ibum
Brotherhood of Cross Olumba Obu.
and Star.
3. HC/378/07 Queen Ibum Olumba Bishop Roland Obu aka His Holiness
Obu Apostle Ekanem E. Olumba Obu; Peter Ekpo Nsa Ekeng
Ekanem Apostle
Augustine Esu
4. HC/400/07 Queen Olumba Obu, Bishop Olumba Olumba Obu,
Apostle Ekanem Apostle Peter K. Danson.
E. Ekanem.
From the table below the Plaintiff in suit No. HC/388/08 was not the plaintiff in any of the three cases listed in the notice of preliminary objection. He was not a party to suit no. FHC/CA/CS/69/08, he was the first defendant in each of suits Nos. HC/373/07 and HC/400/07. The threshold issue of institution of multiple suits between the same parties is not proved and it becomes a mere academic exercise to determine whether the subject matter and the issues are the same or the issue of annoyance and irritation of a party and detriment to the efficient and effective administration of justice. Learned Eminent Counsel for the Respondent submitted that in dismissing suit no: HC/388/08 as abuse of process the learned trial judge tapped from his knowledge of the numerous cases he handled between the parties. With respect to learned counsel if this is so, it is an irregularity and a departure from the rules of procedure that can render the whole proceedings a nullity. A judge is not allowed to resort to his personal knowledge in the resolution of any fact in contention before him. If his personal knowledge of the facts in issue can be of any use in the judicial process he has to rescue himself from conducting the proceedings and become a witness in the case.
Learned counsel for the respondent listed a Plethora of cases by which he sought to convince the Court to affirm the decision dismissing the Appellant’s suit as abuse of process.
As I said earlier the Court cannot go beyond the three cases specifically listed in the notice to determine the issue n contention.
At this point I would like to remind Learned Counsel with profound respect, that any derogatory remark, particularly bordering on unethical conduct made in one brief on the quality of another brief or argument therein is directed not at the party on behalf of whom the brief was settled but on the Counsel who settled the brief.
Learned Counsel as gentlemen colleagues and brothers at Bar have no personal issue one against the other. Win or lose the case they remain learned friends and colleagues. This is a necessary relationship that transcends, and enhances the conduct of, the cases they handle. Civility in spoken and written language is a lubricant that prevents law suits from degenerating into combat, and by which the participants emerge from our adversary process without blisters and swollen faces.
Let us bear in mind that in Appellate brief the authors exray themselves by their use of language, append their signatures and leave same for the present and generations unborn.
If Learned gentlemen must quarrel in print and describe each other in unflattering terms they can do that in their private communications, not in their briefs because it distracts from issues in contention.
In conclusion it is my humble view that in the con of suits Nos FHC/CA/CS/69/2008. HC/373/07 and HC/400/07 taken together or separately suit No HC/388/08 does not constitute abuse of process of Court. Accordingly the preliminary objection on the ground of abuse of process of Court is not sustainable and it is hereby dismissed.
There will be costs of N25,000 in favour of the Appellant and against the Respondent.
JAAFARU MIKA’ILU, J.C.A.: I have read in draft the lead judgment of my learned brother, N.S. Ngwuta, J.C.A. I agree with all the reasons given in it and the conclusion reached thereof. Suit No:; NE/388/08 does not constitute abuse of court process. Therefore the preliminary objection on the ground of abuse of process of court is not sustainable and is dismissed. I award the same costs as in the lead judgment.
JEAN OMOKRI, J.C.A.: Hon. Justice Jean Omokri, J.C.A (of blessed memory) participated in this Appeal and agreed in conference that the Appeal should be allowed, with costs in favour of the Appellant. Pursuant to the proviso to Section 294 (2) of the Constitution I hereby pronounce his opinion allowing the Appeal.
Appearances
V. Itam Esq holding brief for Deigbe EsqFor Appellant
AND
Dr. Tony Ukam;
Atim Ekpe Atom Ikpri;
I. Abam;
Linus Mobrey Amaka
Nwakwo (Miss, George Jack)For Respondent
