HRH EZE FRANCIS UNAMKA v. INNOCENT UGOCHUKWU & ORS
(2019)LCN/12736(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of February, 2019
CA/OW/340/2014
RATIO
COURT AND PROCEDURE: ABUSE OF COURT PROCESS
“Now, what is an abuse of the process of the Court and under what circumstances or instances can it be said that an action is an abuse of the process of the Court? It has been held that an abuse of the process of the Court may include a situation:- (a) Where a party improperly uses judicial process to the irritation, harassment and annoyance of his opponent and to interfere with the administration of Justice; (b) Where two or more similar processes are issued by a party against the same party/parties in respect of the exercise of the same right and same subject-matter; (c) Where the process of the Court has not been used bona fide and properly. See:- (i)A.C.B PLC VS. NWAIGWE & ORS. (2011) 7 NWLR (PT. 1246) 380 at 384 R. 1; (ii) OKAFOR VS. A – G ANAMBRA STATE (1991) 6 NWLR (PT. 200) 659; (iii) SARAKI VS. KOTOYE (1992) 9 NWLR (PT. 264) 156;and (iv) OKORODUDU VS. OKOROMADU (1977) 3 SC. 21” PER IBRAHIM ALI ANDENYANGTSO, J.C.A.
COURT AND PROCEDURE: WHERE ABUSE OF COURT PROCESS IS RAISED SUO MOTO
“It is submitted that the submissions of counsel on the issue of abuse of Court being raised suo motu are misconceived and the authorities of G. S. PASCUTTO V. ADECENTRIC NIGERIA LTD. (1997) 11 NWLR (PT. 529) 467, ADEBANJO V. BROWN (1990) 3 NWLR (PT.141) 661 CHIEF GODFREY ONYEKWULUNI & ORS V. AUGUSTINE NDOLOR & ORS (1997) 7NWLR (PT. 512) 250 cited by the Appellants counsel are not applicable in this Appeal. It is submitted that there was no breach of the right to fair hearing of any of the parties in this Appeal. The Honourable Court is most humbly urged to hold that the trial Court did not make any order suomotu and there was no breach of the right to fair hearing of any of the parties.” PER IBRAHIM ALI ANDENYANGTSO, J.C.A.
JUSTICES
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
HRH EZE FRANCIS UNAMKA – Appellant(s)
AND
1. INNOCENT UGOCHUKWU
2. HRH EZE SAMUEL OHIRI
3. HON. UCHE NWOSU
4. GOVERNOR OF IMO STATE
5. A. G. & COM. FOR JUSTICE IMO STATE – Respondent(s)
IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Imo State of Nigeria, Owerri Judicial Division, in Suit No. HOW/798/2013 delivered by the Hon. Justice P. O. Nnadi, J., on the 25th day of June, 2014, wherein the Court dismissed the suit of the claimant for being an abuse of Court Process.
Peeved by the decision, the claimant promptly filed his 5 ground notice of appeal on the 27th June, 2014.
By an Originating Summons dated 25/10/2013, the Claimant submitted the following questions for determination to wit:-
“1. Whether the 2nd to 5th Defendants under the nomenclature of Ezeship crises in Imo State or under any guise whatsoever, and without any legal/legislative backing, have the locus standi to withdraw the recognition of the claimant as the traditional Ruler of Amuzi Autonomous Community in Ahiazu Mbaise Local Government Area of Imo State.
2. Whether in view of the pending Appeal number; CA/OW/189/2011: EZE FRANCIS UNAMKA VS. CHIEF VICTOR ECHIBE AND 4 ORS concerning the Ezeship stool of Amuzi Autonomous Community, Ahiazu Mbaise Local Government Area of Imo State, wherein, the claimant, 1st 4th and 5th Defendants are parties; it is right for 2nd to 5th Defendants, under the guise of Ezeship Crises panel or any other name howsoever called, to strip the claimant of his recognition as the Traditional Ruler of Amuzi Autonomous Community in the Ahiazu Mbaise Local Government Area of Imo State of Nigeria and purport to recognize the 1st Defendant Innocent Ugochuckwu as the traditional ruler of the said community.
3. Whether the 1st to the 5th Defendants (sic) actions while purporting to be acting as Ezeship crises panel, Imo state, or under any other name howsoever called as complained above, does not amount to contempt of the Court in view of the pending Appeal NO: CA/OW/189/2011 wherein the parties are substantially the same as in the present case.
4. Whether the actions of the 2nd to 5th Defendants wherein they purported to have recognized the 1st Defendant as the Traditional Ruler of Amuzi Autonomous Community in the Ahiazu Mbaise Local Government Area of Imo State, in utter neglect of the procedure as enshrined in Sections 5, 6, 7, 8, 9 and 10 of Traditional Rulers and Autonomous Communities Law NO.11 of 1981 (as variously amended) for the recognition of an Eze, is proper in Law?
5. Whether the pronouncement of the 4th Defendant, Owelle Rochas Anayo Okorocha, on the 16th day of October 2013 at the Ahiajoku Convention Centre Owerri, that the claimant should refund all the arrears of his salaries received so far, has any effect whatsoever, in view of the crucial issues raised above.? (Pages 3 – 4 of the Record)
The Claimant then sought the following reliefs:-
1. A DECLARATION that 2nd to the 5th Defendants while sitting under the guise of Ezeship crises panel in Imo State or under any other name howsoever called, not being backed by any legislation cannot withdraw the recognition of the claimant as the traditional Ruler of Amuzi Autonomous Community as they LACK the LOCUS STANDI or necessary powers to do so.
2. A declaration that by virtue of the pendency of Appeal Number, CA/OW/189/2011: EZE FRANCIS UNAMKA VS. CHIEF VICTOR ECHIBE AND 4 ORS concerning the Ezeship stool of Amuzi Autonomous Community in the AhiazuMbaise Local Government Area of Imo State wherein the claimant, 1st, 4th and 5th Defendants are parties, the pronouncement by the 4th Defendant that the recognition of the claimant has been withdrawn and same given to the 1st Defendant as Eze/traditional Ruler of Amuzi Autonomous Community in AhiazuMbaise Local Government Area of Imo state, is null and void and of no effect.
3. A declaration that by virtue of the doctrine of lispendens, the 1st Defendant acquired no interest whatsoever over the Ezeship stool of Amuzi Autonomous community.
4. A declaration that by virtue of lack of Locus Standi, in addition to the doctrine of lispendens, the 4th Defendant?s pronouncement that the claimant should refund all arrears of his salary so far paid, is null and void and of no effect.
5. An injunction estraining (sic) the 1st Defendant by himself his servants, agents or workers from parading and/or allowing himself to be paraded as Eze of Amuzi Autonomous Community in AhiazuMbaise Local Government Area.
6. A declaration that the claimant remains the traditional Ruler of Amuzi Autonomous community in view of his recognition in 2007 as such, pending the hearing and determination of Appeal NO: CA/OW/189/2011: EZE FRANCIS UNAMKA VS. CHIEF VICTOR ACHIBE AND 4 ORS, at the Court of Appeal Owerri.? (Pages 4 ? 5 of the Record of Appeal).
The Defendants opposed the claim of the claimant by filing various processes (see pages 99 – 104 of Record). At the end, the learned trial Judge delivered judgment in favour of the Defendants, and piqued by the said judgment the claimant has appealed to this Court as earlier indicated. The Grounds of Appeal shorn of their Particulars are as follows:-
GROUND ONE: ERROR IN LAW
The Learned trial judge erred in law by deviating from the substance of the suit NO: HOW/798/2013 which is for him to determine the legal Questions as it (sic) concerns the lawfulness or otherwise of the Respondent’s action of the 16th day of October 2013, purporting to dethrone the Appellant as the traditional Ruler of Amuzi Autonomous community visa (sic)vis the doctrine of lispendens.
GROUND TWO: ERROR IN LAW
The learned trial judge erred in law when he failed to consider the issue of law raised in the originating summons on the erroneous manner with which the Appellant was purportedly dethroned and the 1st Respondent enthroned.
GROUND THREE: ERROR IN LAW
The learned trial judge erred in law when he failed to make a pronouncement on the instructions of the 4th Respondent sitting as Governor of Imo State that all arrears of salaries received by the Appellant during his recognition as traditional Ruler of Amuzi Autonomous Community must be refunded to the Government.
GROUND FOUR: MISDIRECTION IN LAW
The learned trial judge misdirected himself in law when he held that suit NO: HOW/798/2013 constituted an abuse of Court process.
GROUND FIVE: ERROR IN LAW
The trial judge erred in law when he failed to realize that suit NO: HOW/798/2013 does not have the same cause of action as in Appeal NO: CA/189/2011 when he pronounced in his judgment that the issues canvassed in former had better be argued in Court of Appeal in Appeal NO: CA/189/2011.? (Page 238 ? 243 of the Record of Appeal).
The claimant then sought these reliefs:-
(a) An Order allowing the Appeal.
(b) An Order setting aside the judgment of the Court below and restoring the recognition of the Appellant as the traditional Ruler of Amuzi Autonomous Community in Ahiazu Mbaise Local Government Area of Imo State.
Henceforth in this judgment, I shall refer to the parties as Appellant and Respondents respectively.
In accordance with the Rules of this Court, parties filed their respective Briefs of Argument. The Appellant filed his Brief of Argument, settled by Ken. C. Nwakamma Esq., on 12/12/2014 which, with the leave of Court, was amended and deemed filed and served on 10/5/2017. The 1st Respondent filed his Respondent’s Brief, settled by R. U. Okwuego Esq., on 27/5/2016, while the 2nd – 5th Respondents filed their Brief of Argument,settled by Mrs. E. C. Aguta, Director, Alternative Dispute Resolution, Ministry of Justice, Owerri, Imo State, on 2/7/2018.
The Appeal was heard on 26th November, 2018. Ken. C. Nwakamma Esq., appeared for and adopted the Appellant’s Brief of Argument and urged this Court to allow the appeal and grant the reliefs sought by the Appellant. O. Oriaku Esq., appeared for the 1st Respondent, adopted his brief and urged us to dismiss the appeal. And Mrs. E. C. Aguta appeared for 2nd-5th Respondents, adopted their Briefs of Arguments and also urged us to dismiss the Appeal.
In the Appellant’s Brief of Argument three issues were formulated for determination thus:-
1. Whether in view of the circumstances of the suit NO: HOW/798/2013 and the issues raised therein, the learned trial judge of the High Court was right to hold that ‘the originating summons is an abuse of the process of the Court and that same is incompetent and is accordingly struck out’
2. Whether the learned trial judge of the High Court was right when he stated in his judgment thus; “that whereas in this case, an Appeal has been entered and fixed for hearing at the Court of Appeal, all issues relating to and touching on the subject matter of that Appeal should be presented before the Court of Appeal seised(sic) with jurisdiction and control over the matter?, without recourse to the fact that what is placed before him is in essence a pronouncement on whether the action of the Respondents pronouncement on whether the action of the Respondents (sic) visa vis the doctrine of lispendens is right in the eyes of the law.”
3. Whether the learned trial judge of the High Court was Right (sic) in ignoring one of the issues raised in the originating summons to wit: whether the pronouncement of the 4th Defendant, Owelle Rochas Anayo Okorocha on the 16tht day of October 2013 at the Ahiajoku convention Centre Owerri, that the claimant should refund all the arrears of salaries received so far, has any effect whatsoever, in view of the doctrine of lispendens’, As (sic) well as not making a pronouncement on the issue of law raised in suit NO. HOW/798/2013 on the propriety or otherwise, of the 2nd to 5th Respondent’s action wherein they purportedly recognized the 1st Respondent herein as a traditional Ruler inutter neglect of the procedure to be followed in recognizing a traditional Ruler as enshrined in Sections 5, 6, 7, 8, 9 and 10 of the Imo State of Nigeria Traditional Rulers and Autonomous Communities law (sic) NO. 1 of 1981 (as variously amended).?
The 1st Respondent donated two issues for termination which are:-
ISSUE 1: Whether the learned trial judge was right when he held that suit NO. HOW/798/2013 was incompetent and an abuse of Court process and therefore, struck out same.?
ISSUE 2: Whether the doctrine of lispendens can avail the appellant in this appeal.?
The 2nd – 5th Respondents in their Brief of Argument formulated three issues for determination thus:-
1. Whether the trial Court was right in holding that the Originating Summons is an abuse of the process of the court and incompetent.?
2. Whether the trial Court was right in holding that in so far as the appeal in CA/OW/189/2011 has been entered, all issues relating to the questions and reliefs sought in the Originating Summons should be left for the Court of Appeal, vis a vis the doctrine of lispendens.?
3. Whether the Honourable Court was right in not making any decision on the issues of law raised in the Originating Summons.?
The issues raised by the parties are the same in material particulars except that those of the Appellant are a little bit verbose. I shall therefore use the issues donated by the 2nd ? 5th Respondents for the determination of this appeal.
ISSUE 1 (Grounds 1 & 4)
?Whether the trial Court was right in holding that the originating summons is an abuse of the process of Court and incompetent.?
The Learned Appellant’s Counsel, Ken. C. Nwakamma Esq., submitted that the Suit NO. HOW/798/2013, cannot by any stretch of imagination be described as an abuse of the process of Court vis a vis Appeal NO. CA/OW/189/2011 as it is not of the same bearing with Suit NO. HOW/798/2013 because the cause of action is not the same for both cases. He argued that the suit which originated Appeal NO. CA/OW/189/2011 basically challenged the jurisdiction of the trial Judge, Hon. Justice A. O. H. Ukachukwu J, while the Suit NO. HOW/798/2013 calls on the trial Judge, Hon. Justice Pascal O. Nnadi J, to interpret the legality or otherwise of the Respondents in the present Appeal, wherein they purportedly enthroned the present 1st Respondent, as the traditional Ruler of Amuzi Autonomous Community in the Ahiazu Mbaise Local Government Area of Imo State, in utter disregard of the pending Appeal NO. CA/OW/189/2011, despite being aware of the existence of the Appeal and despite being parties therein; that the cause of action in Appeal NO. CA/OW/189/2011 arose in 2009 while the cause of action in Suit NO. HOW/798/2013 arose in 2013, precisely on the 16th October, 2013; that the claims or reliefs in Suit NO. HOW/798/2013 are different from the reliefs sought in the Appeal NO. CA/OW/189/2011.
It is also submitted that the description of Suit NO. HOW/798/2013 as an abuse of Court process is a misdirection in law, and that the trial Judge suo motu raised this issue without inviting Counsel to address him on it, but based his judgment thereon, thereby making a different case for the parties which is not allowed in law, relying on G. S. PASCUTTO VS. ADECENTRO (NIG) LTD. (1997) 11 NWLR (PT. 529) 467 R.8. He submitted further that it is the duty of the Court to resolve dispute between the parties as presented by them and not to make out a case for the parties, relying on ADEBANJO VS. BROWN (1990) 3 NWLR (PT. 141) 661. Again, that a Court should not make an order not asked for or make an order against a person without hearing him, relying on CHIEF GODFREY ONYEKWULUNI & ORS. VS. AUGUSTINE NDOLOR & ORS. (1997) 7 NWLR (PT. 572) 250 at 281?282 paras H?A and page 276 paras C-D and page 281 para C. He finally submitted on this issue that when a Court raises a point suo motu, the parties must be given an opportunity to be heard on it, particularly the party that may be adversely affected as a result of the point so raised, and thus avoid any breach of the parties? right to fair hearing, relying on ABBAS v SOLOMON(sic) (2001) FWLR (PT. 67) 847, and then urged us to resolve this issue in favour of the Appellant by holding that this suit is not an abuse of Court process.
The learned Counsel for the 1st Respondent, R. U. Okwuego Esq., in his brief submitted that the learned trial Judge was right in holding that Suit NO. HOW/798/2013 was incompetent as it was an abuse of Court process and therefore struck out same. He referred to the ruling and judgment of the High Court of Imo State in Suits NOS.HAM/70/2008, and HOW/201/2009 given on 2nd June, 2009 (Exhibit LC1 at pages 70 – 73 of the Record) and 15th July, 2010 (Exhibit LC3 at pages 77 – 78 of the Record) respectively and submitted that in the two suits the High Court of Imo State had declared the recognition of the Appellant as the traditional Ruler of Amuzi Autonomous Community illegal and of no effect whatsoever. Furthermore, that apart from the Notice of Appeal in Suit NO. HOW/201/2009 which notice is incompetent, there is no any order of a competent Court which has set aside the decisions of the High Court in the two judgments, rendering them subsisting and binding.
Learned Counsel also submitted that judgments of Court take immediate effect unless for reasons stipulated otherwise, and that no matter how wrong a decision of a Court is, until it is set aside it remains extant and binding on all the parties. He referred to GONGOLA STATE VS. TUKUR (1989) NWLR (PT. 117) 608; ALH. IBRAHIM ABDUHAMID VS. HABEEB NIGERIA BANK LTD. & ANOR. (2001) FWLR (PT. 44) 527 at 535; DIAMOND BANK LTD. VS. NDUBUISI & ORS. (2002) FWLR (PT. 727) 736 and SAM-FAN FINANCIAL LTD. VS. MR. AINA (2001) FWLR (PT. 70) 1601 at 1609.
Learned counsel further submitted that by the Ruling and Judgment of the Imo State High Court delivered in Suits NOS. HAM/70/2008 and HOW/189/201/2009, the Appellant is no more the Eze of Amuzi Autonomous Community and therefore is stopped from bringing further actions in respect of this subject matter, as the Court’s jurisdiction to entertain same has been ousted by the two decisions, relying on AGBOGUNLERI VS. DEPO (2008) ALL FWLR (PT. 408) 240 at 256. He further submitted that the filing of the Suit HOW/798/2013 is tantamount to inviting the High Court to sit in judgment on appeal over its own decisions on the same subject matter which constitutes an abuse of Court process, relying on a foreign decision inWILLIAMS VS. HUNT (1905) IKB 512 and a Nigerian decision in NIGERIA INTERCONTINENTAL MERCHANT BANK LTD. VS. UBN & ORS (2004) MJBC 158 at 175 – 176.
Learned Counsel re-emphasized that by the provisions of Section 270 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) each State of Nigeria has only one High Court and therefore Suit NO. HOW/798/2013 brought by the Appellant, touching on the same subject matter (Ezeship of Amuzi Autonomous Community) is an abuse of Court process, and submitted that the Imo State High Court cannot be invited by the Appellant to overrule itself as the Appellant has done in Suit NO. HOW/798/2013, relying on ADIGHIJE VS. NWAOGU (2010) ALL FWLR (PT. 521) 1512 R. 3. Also, submitted Learned Counsel, the Imo State High Court cannot be invited to make any order that will derogate from the Ruling and Judgment in Suits NOS. HAM/70/2008 and HOW/201/2009 as the prayers in the two suits as well as the present suit which has culminated in this appeal are the same, relying on NIMB LTD. VS. UBN LTD. (2004) ALL FWLR (pt. 209) 1126 at 1131-1132.
Learned Counsel contended that even if it is argued that there is an appeal against the judgment in Suit NO. HOW/201/2009 (which is not conceded), the Ruling inSuit NO. HAM/70/2008 which has not been appealed against remains effective and binding. He referred us to the counter affidavit of the 1st Respondent on pages 79 – 84 of the Record, which is Exhibit LC4, and submitted that the Suit No. HOW/189/2013 is an abuse of Court process. He also submitted that even the appeal against the Suit No. HOW/201/2009 is incompetent, as the Appellant did not pay the requisite filing fees in respect thereof, referring toMEMORIAL FARMS LTD. VS. NIGERIAN AGRICULTURAL AND COOPERATIVE BANK LTD.& ANOR (2008) 4 SCNJ 436 at 448 and AYODEJI VS. AJIBOLA (2003) ALL FWLR (pt. 660) 1327 at 1345 paras A ? R.
Finally on this issue, we are urged to resolve same against the Appellant and in favour of the 1st Respondent.
For the 2nd – 5th Respondents, Mrs. E. C. Aguta submitted that the issue of abuse of Court process raised suomotu by the lower Court as canvassed by the learned Appellant’s counsel is misconceived as the lower Court did not suomoto raise any such issue, urging us to so hold, and that the authorities of G.S. PASCUTTO V ADECENTRO NIG. LTD. (1997) 11 NWLR (pt. 529) 467; ADEBANJO VS. BROWN (1990) 3 NWLR (pt. 141) 661 and CHIEF GODFREY ONYEKWULUNI & ORS VS. AUGUSTINE NDOLOR & ORS (1997) 7 NWLR (pt. 512) 250 relied upon by learned Appellant’s Counsel are inapplicable. She submitted that there was no breach of the right to fair hearing of any of the parties in this appeal caused by the lower Court, andurged us to so hold.
ISSUE 2 (GROUNDS 1 & 5) / 2 & 5
‘Whether the trial Court was right in holding that in so far as the appeal in CA/OW/2011 has been entered, all issues relating to the questions and reliefs sought in the Originating Summons should be left for the Court of Appeal, vis a vis the doctrine of lispendens.’
The learned Appellant’s Counsel contended that the trial Court was under the illusion that Suit NO. HOW/798/2013 is on all fours with Appeal NO. CA/OW/189/2011; that this misconception led the trial Court to deny the appellant fair hearing as it abandoned the fundamental issues of law raised in the Appellant’s Originating Summons filed at the lower Court in Suit NO. HOW/798/2013, chief among which is:-
‘the legality or otherwise of the pronouncement of the 4th Respondent herein, on the 16th day of October, 2013, to the effect that the Appellant had been dethroned as the traditional Ruler and that the 1st Respondent had been enthroned as the traditional Ruler of Amuzi Autonomous Community in the Ahiazu Mbaise Local Government Area of Imo State and Appellant should refund all the salaries he had received as a traditional Ruler, prior to the purported dethronement, vis a vis the doctrine of lispendens. Reference is made to the case of AFRO CONTINENTAL NIG. LTD VS. COOPERATIVE ASSOCIATION OF PROFS INC (2003) 5 NWLR (pt. 813) 303 R.1 where it was held that it is mandatory for a Court to pronounce on all or every application duly filed before it, failure of which will amount to a breach of the right to fair hearing.’
Learned Counsel submitted further that it is apparent that the Appellant has been denied fair hearing which has occasioned a miscarriage of justice. He then urged us to resolve this issue in favour of the Appellant.
For the 1st Respondent, it is contended that from the facts and circumstances of this case it is not in dispute that the Ruling and Judgment delivered in Suit Nos. HAM/70/2008 and HOW/201/2009 are still subsisting and binding and have not been set aside in any form or manner. Furthermore that the Appellant is indisputably in breach and contempt of both Ruling and Judgment as he has not obeyed anyone of the two decisions, thus he is still parading himself as the Ruler of Amuzi Autonomous Community.
Learned Counsel then queried: Can the doctrine of lis pendens avail the Appellant when he is still in breach and contempt of the Court’s Ruling and Judgment in Suits NOS. HAM/70/2008 and HOW/201/2009 respectively He answered this in the negative.
Learned Counsel then submitted that the substratum of the decisions of the Imo State High Court in the two suits is that in the eyes of the law, the Appellant has never been recognized as the traditional Ruler of Amuzi Autonomous Community. He relied on LADOJA VS. INEC (2007) 12 NWLR (pt. 104) 115 at 136 – 141 R. 7 and CHIBUIKE AMAECHI VS. INEC. (citation not supplied).
Learned Counsel submitted further that the Appellant’s recognition by the Governor of Imo State was null and void and of no legal effect ab initio.
Regarding the contention of the Appellant that his appeal against the decision in Suit NO. HOW/201/2009 has rendered the judgment ineffective, learned Counsel submitted that, that approach is not the correct position of the law; but that it is the law that a judgment of the Court is effective, solid and binding until set aside and no matter how fundamental vice that afflicts the judgment, it is still binding until set aside by a superior Court. He relied on GONGOLA STATE VS. TUKUR (supra); ALHAJI IBRAHIM ABDULHAMID VS. HABEEB NIGERIA BANK LTD. & ANOR. (supra); SAM-FAN FINANCIAL LTD. VS. MR. AINA (supra); DIAMOND BANK LTD. VS. NDUBUISI & ORS (supra) and AGBOGUNLERI VS. DEPO (supra).
It is contended further that assuming (without conceding) that the judgment in Suit NO. HOW/201/2009 is on appeal and so not binding, the Ruling in Suit NO. HAM/70/2008 still binds the parties therein. Counsel then submitted that it is trite that he who comes to equity must come with clean hands, and that in this case the Appellant should never be allowed by this Hon. Court to approbate and reprobate. He should not be allowed to invoke the doctrine of lispendensonly when it is favourable to him but vehemently repudiate and reject same when it is unfavourable. He drew our attention to the fact that the Appellant was recognized and appointed as the Eze of Amuzi Autonomous Community while Appeal NO. CA/PH/155/2001 was pending to his knowledge in respect of the same Ezeship stool of Amuzi Autonomous Community. He stated that at that same time the Appellant swept under carpet the doctrine of lispendens only to turn round now to invoke it, rendering his hands dirty and so this Court should not allow him to enjoy that. He submitted that the filing of this suit is contempt of Court which should not be treated lightly, referring to MILITARY GOVERNOR OF LAGOS STATE VS. CHIEF EMEKA ODUMEGWU OJUKWU (1986) ALL FWLR (pt. 33) 230 at 240 and NIGERIAN ARMY VS. GLORIA MOWARIN (1992) 4 NWLR (pt. 235) 345 at 358 and a host of other authorities. He then urged us to resolve this issue against the Appellant and in favour of the 1st Respondent.
For the 2nd – 5th Respondents, it was submitted that the trial Court considered all the processes placed before it and held that all the issues should be handled by the Court of Appeal.
In respect of the power of the 4th Respondent to suspend, it was submitted that Section 14 of the Imo State of Nigeria Traditional Rulers Autonomous Communities and Allied Matters Law, 2006, Law No. 6 of 2006 empowers the 4th Respondent to suspend or withdraw recognition. He submitted also that the proceedings of the Panel which looked into the issue of the Traditional Ruler of Amuzi were not placed before the Court and so it was not enough for the Appellant to state in an affidavit that the 4th Respondent made a pronouncement on 16th October, 2013 about removal or suspension of the traditional Ruler.
ISSUE 3
‘Whether the Honuorable Court was right in not making any decision on the issues of law raised in the Originating Summons.’
The learned Appellant?s Counsel cited many sections of the Imo State of Nigeria Traditional Rulers and Autonomous Communities Law No. 11 of 1981 (as variously amended), and submitted that the 4th Respondent did not follow the correct procedure for de-recognizing the Appellant in his action of 16th October, 2013, which rendered same null and void ab initio, yet the learned trial Judge did not carefully consider the materials placed before him in arriving at the decision he took, relying on CHIEF ELIJAH OMONIYI AJAYI VS. TOTAL NIG. PLC (2013) 7 KLR (pt. 334) 3333 at 3335. In the light of the above, it was urged upon us to resolve this issue in favour of the Appellant and allow the appeal and set aside the decision of the lower Court.
For the 1st Respondent, it was submitted that the de-recognition of the Appellant by the 4th Respondent is not a nullity as contended by the Appellant, as the 4th Respondent has power to recognize, de-recognize, suspend and/or withdraw the recognition of the Appellant. He referred to Section 14 (1) (a) of the Imo State Traditional Rulers Autonomous Community and Allied Matters Law No. 6 of 2006 and urged us to resolve this issue against the Appellant and in favour of the 1st Respondent and then dismiss the appeal as lacking in merit.
For the 2nd-5th Respondents, Mrs. E. C. Aguta submitted that the Imo State Traditional Rulers and Autonomous Communities Law 2006 is the extant law guiding traditional rulers and related matters, and that Section 47 of Law No. 6 of 2006 has repealed the 1981 and 1999 laws and so the Appellant’s Counsel cannot rely on repealed Law in urging this Court to hold in favour of the Appellant. She urged us to resolve this issue in favour of the 2nd?5th Respondents and against the Appellant, and then dismiss the appeal as unmeritorious.
RESOLUTION OF THE ISSUES
ISSUE 1
‘Whether the trial Court was right in holding that the Originating Summons is an abuse of the process of the Court and incompetent.’
The Appellant’s Learned Counsel Ken. C. Nwakamma Esq., has contended and submitted that the trial Court was wrong to have declared the Originating Summons and afortiori the Suit No. HOW/798/2013 an abuse of the process of the Court and therefore incompetent and that the lower Court suo motu raised the issue of abuse of the process of the Court without giving the parties, especially the Appellant the opportunity to address the Court on it, thereby infringing upon the Appellant?s right to fair hearing.
The 1st and 2nd – 5th Respondents’ Counsel on the other hand have argued vehemently that the trial Court was right to have so held that the Suit No. HOW/798/2013 was an abuse of the process of the Court and therefore incompetent; and that the lower Court did not suomotu raise the issue, without calling upon the parties to address the Court.
Now, what is an abuse of the process of the Court and under what circumstances or instances can it be said that an action is an abuse of the process of the Court?
It has been held that an abuse of the process of the Court may include a situation:-
(a) Where a party improperly uses judicial process to the irritation, harassment and annoyance of his opponent and to interfere with the administration of Justice;
(b) Where two or more similar processes are issued by a party against the same party/parties in respect of the exercise of the same right and same subject-matter;
(c) Where the process of the Court has not been used bona fide and properly.
See:-
(i)A.C.B PLC VS. NWAIGWE & ORS. (2011) 7 NWLR (PT. 1246) 380 at 384 R. 1;
(ii) OKAFOR VS. A ? G ANAMBRA STATE (1991) 6 NWLR (PT. 200) 659;
(iii) SARAKI VS. KOTOYE (1992) 9 NWLR (PT. 264) 156;and
(iv) OKORODUDU VS. OKOROMADU (1977) 3 SC. 21
It has also been held that to constitute an action during the pendency of another one, claiming the same reliefs, amounts to an abuse of process of Court. In this wise it does not matter whether the matter is an appeal or not, for as long as the previous suit or action has not been finally decided, the subsequent action constitutes an abuse of Court process. Hence it is not the pendency or existence of a previous suit that causes the problem but the institution of a fresh action between the same parties and on the same subject-matter when the previous suit has not been disposed of, that constitutes an abuse of the process of the Court. See:-
(a)ADESOKAN VS. ADEGOROLU (1991) 3 NWLR (PT. 179) 293;
(b) OKAFOR VS. A – G ANAMBRA STATE (supra);and
(c) A.C.B. PLC VS. NWAIGWE & ORS. (supra)
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Flowing from the above, an abuse of the process of Court will arise in the following instances:-
(a) When a party institutes several actions against the same party on the same subject-matter, and the same issues; and
(b) When a party institutes different actions between the same parties in different Courts at the same time, the grounds being different notwithstanding. See:-
(i) DIELI VS. IWUNO (1996) 4 NWLR (PT. 445) 622;
(ii) N. V. SCHEEP VS. M. V. ?S. ARAZ? (2000) 15 NWLR (PT. 681) 622;and
(iii) SARAKI VS. KOTOYE (1992) (supra)
Let me begin the resolution of this issue with the submissions of the Appellant?s Learned Counsel Ken. C. Nwakamma Esq., contained in paragraphs 2.09 ? 3.03, of the Appellant?s brief of argument to the effect that the learned trial judge misdirected himself in law when he suo moto raised the issue of the processes filed in Suit NO. HOW/798/2013 as an abuse of the process of the Court. These paragraphs are hereunder reproduced for clarity:-
?It is further submitted with due respect, that the judgment of the trial judge wherein he described suit NO: HOW/798/2013 as an abuse of Court process is a Misdirection in law.
It must be noted that the issue of the abuse of Court process was raised by the trial judge suo moto. He never asked counsel in the matter to address the Court, before making a pronouncement on it.
It is a well known principle of law that it is Incompetent for a Court to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case so formulated it. (sic) See G.S. PASCUTTO VS. ADECENTRO NIG. ERIA (sic) LTD. (1997) 11 NWLR (Pt. 529) 467 Ratio 8 SC.
It is the duty of the Court to resolve dispute between the parties as presented by them and not to make out a case for the parties. See ADEBANJO VS. BROWN (1990) 3 NWLR (Pt. 141) 661.
In the same token, it is trite that the Court shall not make an order not asked for or make an order against a person without hearing him. See CHIEF GODFREY ONYEKWULUNI AND ORS VS. AUGUSTINE NDOLOR AND ORS (1997) 7 NWLR (Pt. 512) 250 at 281 ? 282 paras H-A, also P 276 paras ‘C – D’, 281 para ‘C’.
It is trite that when a Court raises a point suomotu, the parties must be given opportunity to be heard on the issue particularly the party that may be adversely affected as a result of the point raised suomotu and thus avoid any breach of the parties right to fair hearing. See ABBAS SOLOMON (2001) FWLR (Pt. 67) 847. I therefore urge my lords to resolve this issue in favour of the Appellant. The suit is not an abuse of Court process.?
The 1st Respondent’s learned Counsel, R. U. Okwuego Esq., in his brief of argument did not respond to this point. But Mrs. E. C. Aguta for the 2nd – 5th Respondents responded in paragraphs 4.01B – 4.01C as follows:-
The facts of this case show that the issue of abuse of Court process was not raised by the Court suomotu. The 1st Respondent raised the issue as a preliminary issue; there is notice of preliminary objection and the first ground is that this suit is an abuse of process of Court and the honourable Court has no jurisdiction to entertain same (At page 86 of the Records). The other Respondents also raised objection. The Appellant reacted by filing a reply on points of law at page 199-203 of the Records.
It is submitted that the submissions of counsel on the issue of abuse of Court being raised suo motu are misconceived and the authorities of G. S. PASCUTTO V. ADECENTRIC NIGERIA LTD. (1997) 11 NWLR (PT. 529) 467, ADEBANJO V. BROWN (1990) 3 NWLR (PT.141) 661 CHIEF GODFREY ONYEKWULUNI & ORS V. AUGUSTINE NDOLOR & ORS (1997) 7NWLR (PT. 512) 250 cited by the Appellants counsel are not applicable in this Appeal. It is submitted that there was no breach of the right to fair hearing of any of the parties in this Appeal. The Honourable Court is most humbly urged to hold that the trial Court did not make any order suomotu and there was no breach of the right to fair hearing of any of the parties.
I have perused the Record of Appeal and found that the issue of the Originating Summons filed by the Appellant before the trial Court being an abuse of the process of Court, was first raised by learned Counsel to the 1st Respondent (as 1st Defendant) in the trial Court in his written address in opposition to the Appellant?s (as Claimant) Originating Summons. He captioned it ?NOTICE OF PRELIMINARY OBJECTION? and copiously addressed the issue of the Originating Summons being an abuse of the process of Court. (See page 86 paragraph 3.01 ? page 92 paragraph 5.01 of the Record).
The learned Counsel to the 2nd – 5th Respondents who were 1st – 5th Defendants in the Court below also addressed the issue of the Originating Summons being an abuse of the process of Court in her written address of Counsel for 2nd – 5th Defendants in opposition to the Originating Summons at page 111 paragraph 1.0 ? page 116 paragraph 4.10 of the Record of Appeal.
The Appellant’s Learned Counsel, Ken. C. Nwakamma Esq., replied on points of law to the issue of the Originating Summons being an abuse of Court process first raised by way of a preliminary objection (see page 199 paragraph 1.0 page 203 paragraph 3.09 of the Record).
From the foregoing, it is crystal clear that the learned trial Judge did not suo motu raise the issue of the Originating Summons being an abuse of Court process and decided the case based thereon. Counsel on all sides had adequately addressed the Court on it. Therefore the submissions of learned Appellant’s Counsel that the learned trial Judge suomotu raised the issue of the Originating Summons being an abuse of Court process and, without allowing parties, especially the Appellant to address him thereon, and thereby denied the Appellant the right to fair hearing, with due respect, does not represent the state of the proceedings at the lower Court.
Consequently, I hold that the Appellant was not denied his right to fair hearing, as he adequately addressed the Court on this issue vide his Counsel.
The cases of G. S. PASCUTTO VS. ADECENTRIC (NIG.) LTD. (1997) 1 NWLR (pt. 527) 467; ADEBANJO VS. BROWN (1990) 3 NWLR (pt. 141) 661, and CHIEF GODFREY ONYEKWULUNI &ORS VS. AUGUSTINE NDOLOR & ORS (1997) 7 NWLR (pt. 512) 7 NWLR 250, cited by the Appellant?s Counsel are not applicable in this case.
Now, as can be gleaned from the Record of Appeal, the Appellant was given recognition as the Eze of Amuzi Autonomous Community in the midst of litigation at the time the Appeal NO. CA/PH/155/2001 was pending. The parties were A. A. OHAJI & 4 ORS. VS. CHIEF PIUS UNAMKA & 2 ORS. There was also Suit NO. HOW/201/2009 which was decided against the Appellant stripping him of the recognition given to him as the Eze of Amuzi Autonomous Community, just as it was done in an earlier Suit NO. HAM/70/2008. In the Appeal NO. CA/PH/155/2001, Suits NOS. HAM/70/2008, and HOW/201/2009, the Appellant, the 1st Respondent, 4th and 5th Respondents were parties therein, just as in the present Suit NO. HOW/798/2013. The subject-matter of all the suits is the Ezeship of Amuzi Autonomous Community.
The learned Appellant’s Counsel has argued that the reliefs in the present suit are different from those in the previous suit. However the bottom line of all the suits including this present suit is the Ezeship of Amuzi Autonomous Community. The learned Appellant’s Counsel would appear to be under the wrong impression that the time the cause of action arose would remove an abuse of the process of Court. But this view, with due deference to learned Counsel, will not be of general application. Invariably suits are not normally filed simultaneously before they can be subject of abuse of the process of Court. Hence in some cases a process would be filed and proceedings concluded and an appeal would have been entered before the offensive process would be filed.
It will still be an abuse of Court process where the subsequent suit falls under the instances in the cases of A. C. B. PLC VS. NWAIGWE & ORS (2011) 7 NWLR (pt. 1246) 380; OKAFOR VS. A. G. ANAMBRA STATE (1991) 6 NWLR (pt. 200) 659; SARAKI VS. KOTOYE (1992) 9 NWLR (pt. 264) 156 and OKORODUDU VS. OKOROMADU (1977) 3 SC. 21.
It is therefore clear to me that this Suit NO. HOW/798/2013 is an abuse of the process of Court as far as the subject matter being the Ezeship of Amuzi is concerned. I so hold, resolving this issue in the affirmative.
ISSUE 2
‘Whether the trial Court was right in holding that in so far as the appeal in CA/OW/189/2011 has been entered, all issues relating to the questions and reliefs sought in the Originating Summons should be left for the Court of Appeal, vis a vis the doctrine of lispendens.’
I have perused through all the submissions of and the authorities cited by the learned Counsel for all the parties under this issue. It is clear to me that the Hon. trial Court, having correctly held the view that this suit is an abuse of the Court process, will have no alternative than to hold as it did, that all the questions and reliefs placed before it had to be handled by the Court of Appeal to which an appeal has been lodged and all the issues deal with one subject matter i.e. the Ezeship of Amuzi Autonomous Community of Ahiazu Mbaise Local Government Area of Imo State.
It is beyond question that in Suits Nos. HAM/70/2008 and HOW/201/2009 the Appellant’s recognition as the Eze of Amuzi Autonomous Community was declared null, void and of no legal effect. Even though the Appellant has appealed against the decision of the High Court in Suit NO. HOW/201/2011, he has not appealed against the decision of the High Court in Suit NO. HAM/70/2008. It was the decision of the lower Court in these two suits upon which the trial Court in the instant case based its decision and struck out the Suit NO. HOW/798/2013.
In my firm view, therefore, the trial Court could not have done otherwise in the circumstances of this case, as it would have been contemptuous on the part of the learned trial Judge. The learned trial Judge in my view was right to have held as he did. He was aware and in fact very conscious of the decisions of the High Court in the two previous suits which had declared as null and void the recognition of the Appellant as the Eze of Amuzi Autonomous Community, and so could not decide this case otherwise. The decisions of the High Court in the two suits are still subsisting and binding. There is an appeal only in respect of one – Suit NO. HOW/201/2009 and the second one .Suit NO. HAM/70/2008′ is still subsisting and no appeal has been filed against it.
This issue therefore is answered in the affirmative and is resolved against the Appellant and in favour of the Respondents.
ISSUE 3
‘Whether the Honourable Court was right in not making any decision on the issues of law raised in the Originating Summons.’
I have given a careful consideration to the submissions of Counsel in respect of this issue and hold the candid view that it was only logical and common sensical for the learned trial Judge to refuse to pronounce on the issues of law raised before him where and when he had reached the decision that the suit was an abuse of process of Court. He could not have done otherwise as to do that after having arrived at the decision he did, would have stood reasoning on its head.
The issue of law raised deals with the alleged illegality of the 4th Respondent in his pronouncement of 16th October, 2013, de-recognizing the Appellant as the Eze of Amuzi Autonomous Community and ordering that he refund all the salary arrears he had collected.
The provisions of the Imo State of Nigeria Traditional Rulers & Autonomous Communities Law No. 11 of 1981 cited and relied upon by the learned Appellant’s Counsel have been repealed by Section 47 of the Imo State of Nigeria Traditional Rulers & Autonomous Communities Law No. 6 of 2006, and therefore no more in use.
The act of the 4th Respondent on 15th October, 2013 was done under the new Law and therefore not in breach of any Legislation as contended by the learned Appellant’s Counsel. The approval of the House of Assembly of Imo State has been dispensed with by the new Law. Therefore the Governor has the power to act as he did.
It is to be noted that in the eyes of the Law there was nothing for the lower Court to pronounce upon, other than that the matter was within the jurisdiction of the Court of Appeal to handle, by virtue of the appeal NO. CA/OW/189/2011, pending before it.
As far as the trial Court is concerned and by virtue of the decisions of the High Court in Suits NOS. HAM/70/2008 (not appealed against) and HOW/201/2009 (appealed against) which declared the recognition of the Appellant by the 4th Respondent as illegal, null and void and of no effect, there was nothing for it to pronounce upon. This is because it is trite that when an act has been declared null and void the position is that from the angle of the law the act never took place. It is completely wiped off and considered as extinct and deemed never to have existed. See LADOJA VS. INEC (2007) LPELR – 1738 (SC) at pp. 39 – 40 paras E ? D and ADEFULU VS. OKULAJA (1996) 9 NWLR (pt. 475) 668 at 693.
I also answer this issue in the affirmative, resolving same against the Appellant and in favour of all the Respondents. On the whole, this appeal lacks merit and is hereby dismissed by me with cost assessed at N50,000.00 against the Appellant and in favour of the Respondents.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now the lead judgment just delivered by my Brother IBRAHIM ALI ANDENYANGTSO JCA.
I agree with his reasoning and conclusion.
The Appeal is devoid of merit and same is hereby dismissed by me.
I abide by the consequential order made as to costs.
ITA GEORGE MBABA, J.C.A.: I had the opportunity to read the draft of the lead judgment just delivered by my learned brother, l. A. Andenyangtso JCA and I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed.
In the face of the profound findings of the trial Court, I think Counsel for the Appellant should have known better in the circumstances, to save the Appellant all the troubles and expenses of this appeal, upon the Suit being adjudged and, clearly, an abuse of the Court process, as what it sought to determine had been raised and/or integrated an the Suits HAM/70/2008 and HOW/201/2009 and under review in the Appeal No. CA/OW/189/2011. See the case of Onwuneme & Anor. Vs Customary Court Mbawsi & Ors (2018) LPELR – 44474 CA, where we held, relying on the case of Edjerode Vs Ikine (2001) LPELR – 1479 (SC), as follows:
The law is that abuse of Court process in regard to multiple actions between the same parties on the same subject matter may arise when a party improperly uses judicial process to the irritation, annoyance and harassment of his opponent not only in respect of the same subject matter but also in respect of the same issues in the other actions.? See Okafor Vs A.G. Anambra State (1991) 6 NWLR (Pt.200) 659 at 681; Saraki Vs Kotoye (1992) 9 NWLR (Pt. 264) 156.
In Globe Motors Holding Ltd Vs Honda Motor Co., Ltd (1998) 5 NWLR (Pt. 550) 373 at 381, the Supreme Court said:
An instance of such (abuse)… is the form of vexatious and oppressive actions… when an action is instituted deliberately to circumvent the cause of justice and to bring the judicial process into ridicule and contempt… Any action or course of conduct that is seen designed to introduce anarchy into the judicial system must be dealt with appropriately… See also Dingyadi Vs INEC (No. 2) (2010) 18 NWLR (Pt.1224) 154 SC; (2010) LPELR – 952 SC.’
I too dismiss the appeal and abide by the consequential orders in the lead judgment.
Appearances:
K. C. Nwakamma, Esq.For Appellant(s)
O. Oriaku, Esq. for the 1st Respondent (whose brief was settled by R. U. Okwuego Esq.)
E. C. Aguta (Mrs) Director Alternative Dispute Resolution, Ministry of Justice Owerri, Imo State, for the 2nd ? 5th Respondents.For Respondent(s)
