IKEME & ANOR v. SULAYMAN & ORS
(2022)LCN/16895(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Thursday, July 28, 2022
CA/B/317/2018
Before Our Lordships:
Uchechukwu Onyemenam Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
1. CHIEF (MALLAM) AUDU MONEY HAND IKEME 2. MR. EGBEFUE EGBAKHUME (FOR THEMSELVES AND ON BEHALF OF ANWULO RULING HOUSE) APPELANT(S)
And
1. MALLAM ALI SULAYMAN 2. JEROME KASIMU KHANOBA (FOR THEMSELVES AND ON BEHALF OF IGBINOKO RULING HOUSE) 3. THE GOVERNOR OF EDO STATE 4. THE EDO STATE EXECUTIVE COUNCIL 5. THE ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, EDO STATE 6. THE COMMISSIONER FOR LOCAL GOVERNMENT & CHIEFTAINEY AFFAIRS, EDO STATE 7. ETSAKO EAST LOCAL GOVERNMENT TRADITIONAL COUNCIL RESPONDENT(S)
RATIO
WHETHER OR NOT A COURT CAN LOOK AT DOCUMENTARY EVIDENCE IN ITS FILE TO RESOLVE ISSUES BEFORE IT
Now the question: Is the signature on the Amended Notice of Appeal that of Esemokhai Goodluck Ojo who has his NBA Stamp on the document? To answer or resolve this issue, this Court shall proceed to consider other documents filed by the Appellants Counsel and signed by Esemokhai Goodluck Ojo as contained in the Record of Appeal and determine whether these signatures on the documents are similar to the signature on the Amended Notice Appeal being contested by the Respondents Counsel. In doing this, this Court takes coverage and derives authority from settled principles and case laws to the effect that a Court or Judge has a right to look at a document in the file and in this case the record book. See Agbahomovo V. Eduyegbe (1999) 3 NWLR (Pt. 594) 170 at 183. Without doubt, our Courts have held in a plethora of decided cases that a Court can look at documentary evidence in its file to resolve issues before it. See Akinola V. V.C. Unilorin (2004) 11 NWLR (Pt. 885) 610; Agbaisi V. Ebikorefe (1997) 4 NWLR (Pt. 502) 630; Nwabude & Anor V. Ugodu & Ors (2011) LPELR 9173 (CA). It is therefore trite that a Judex has a right to look at all the documents and process filed so long as it would assist him in the proper adjudication of the issues before him. See Abiodun V. AG. Federation (2007) LPELR – 8550 (CA). PER BOLA, JC.A.
THE POSITION OF LAW ON WHAT CONSTITUTES AN ABUSE OF COURT PROCESS
Does the above constitute abuse of Court process! Abuse of Court process generally means that a party in litigation takes a most irregular, unusual and precipitate action in the judicial process for the sake of action and litigation, merely to waste valuable litigation time. It is an action which would be avoided by the party without doing any harm to the matter in dispute. The process of Court is used merely to overreach the adversary to the direct annoyance of the Court. The Court process is initiated with malice or in some premeditated or organized vendetta aimed at frustrating either the quick disposal of the matter or the abatement of the matter for no good cause. The Court process could also be said to be abused when there is no iota of law supporting it. In other words, the Court process is premised or founded on frivolity or recklessness.
It is settled law that generally, abuse of Court process contemplates multiplicity of suits between the same parties in regard to the same subject matter and on the same issue. The bottom line of these principles in regard to abuse of process is that, to institute an action during the pending of another suit claiming the same relief is an abuse of Court process and the only course open to the Court is to put an end to the suit. See Oyeyemi V. Owoeye (2017) 12 NWLR (Pt. 1580) Page 364 at 397 – 398, Ntuks V. NPA (2007) 13 NWLR (Pt. 1051) 392, Victor Umeh V. Professor Maurice Iwu & Ors (2008) Vol. 41 WRN 1 at 18. PER BOLA, JC.A.
WHETHER OR NOT AN AWARD OF COST IS AT THE DISCRETION OF THE JUDGE
It is settled principle of law that the award of cost is always at the discretion of the Judge, of course guided by laid down principles and not by private opinion. See Akpela V. Chukwu (2005) All FWLR (Pt. 268) 1885. The Court’s discretion must be exercised judicially and judiciously. Usually, cost follows event and are often not awarded as a punitive measure nor are they designed or meant to be a bonus to the successful party. PER BOLA, JC.A.
ADEMOLA SAMUEL BOLA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling delivered on 21st March, 2018 by Honourable Justice S.A. Omonwa sitting at the Edo State High Court of Justice holding at Agenebode dismissing suit no. HAG/1/2018 upon the Appellants’ application for leave to withdraw the suit.
Dissatisfied with the said ruling, the Appellants filed two grounds of appeal contained in their Notice of Appeal dated 11th May, 2018 and filed on 14th May, 2018 which Notice of Appeal was subsequently amended with the leave of this Honourable Court. The Record of Appeal was compiled and transmitted to this Court on 28/06/2018.
The Appellants’ Brief of Argument settled by A.E. Ainabor Esq., was filed on 9/8/2018. The 3rd – 6th Respondents‘ Amended Brief of Argument dated 27th day of April, 2022 was filed on 28/4/2022 and deemed properly filed and served on 14/6/2022. The Appellants Reply Brief to 3rd – 6th Respondents’ Amended Brief of Argument was filed on 26/5/2022. The 3rd – 6th Respondents Brief was settled by Ohiogwehei Esq.
The 1st, 2nd and 7th Respondents filed no Brief of Argument.
BACKGROUNDS FACTS TO APPEAL
INTRODUCTION:
The Appellants on 28/7/2015 filed an action seeking for a number of declarations in a Chieftaincy matter and the Respondents in response filed a statement of defence in which they raised the issue of jurisdiction. The motion for jurisdiction was taken and on 9/10/2017, the learned trial Judge gave a ruling declining jurisdiction.
The Appellants being dissatisfied filed an appeal at the Court of Appeal on 13/12/2017 challenging the ruling of the lower Court. in No. HAG/1/2028 (Subject of this Appeal) on 1/2/2018 in the same Court. The 3rd – 6th Respondents in response to the Appellants’ case filed a number of processes including a counter-affidavit in which the issue of abuse and the incompetence of the Claimants’ action were raised. The Claimants did not file a reply to this counter-affidavit to the motion fixed for 2/5/18. The Appellants instead of going on with their motion applied to withdraw their entire suit to which the Counsel to the Respondents did not object to but applied that the matter be dismissed for abuse of Court process with costs.
The Appellants being dissatisfied with the order filed a Notice of Appeal dated 11/5/2018 and filed on 14/5/2018. The Appellants’ brief was served on the Respondents on 24/8/2018.
ISSUES FOR DETERMINATION
1. Whether the learned trial Judge was right in dismissing the Appellants’ case instead of striking it out in view of the peculiar facts of this case.
2. Whether the learned trial Judge exercised his discretion properly and judiciously in awarding N75,000 costs in favour of the Respondent.
PRELIMINARY OBJECTION
The 3rd – 6th Respondents by way of preliminary objection raised in their Amended Brief of Argument contended that the Appellants Amended Notice of Appeal dated 29/5/2019 and filed on 31/5/2019 was incompetent on the following grounds:
(a) The signature on the Amended Notice of Appeal filed on 31/05/2019 did not disclose who signed it.
(b) There is no indication on the face of the Amended Notice of Appeal or by any other revelation that the Amended Notice of Appeal was signed by any of the names listed on the Amended Notice of Appeal.
(c) The Amended Notice of Appeal has on it on the signature column a signature that cannot be ascribed to any of the four persons who are named therein.
(d) The appeal of the Appellant’s is incompetent in that Amended Notice of Appeal was neither signed by the Appellant nor by a legal practitioner acting on their behalf.
(e) One Esemokhai Goodluck Ojo presumably a lawyer whose stamp was affixed to the Amended Notice of Appeal did not sign same.
It was Counsel’s submission that the Amended Notice of Appeal filed by the Appellants having not been signed by any identifiable legal practitioner for any known Appellant. The Amended Notice of Appeal was purportedly signed for Esemokhai and Company who is not the Appellant.
It was submitted that the non-disclosure of identity of the person who physically signed the Amended Notice of Appeal on behalf of an undisclosed Appellant was not a mere irregularity but a fundamental vice. He referred to Order 7 Rules 4 and 6 of this Court. He referred to the case FMB Ltd B. NDIC (2011) 12 NWLR (Pt. 1261) 253 at 265.
It was argued that the NBA Stamp affixed has the name Esemohai Goodkluck Ojo who is presumably a lawyer but he did not feature as one of the Counsel listed in this appeal. So the signature on the Amended Notice of Appeal is by unknown person on behalf of an unknown Person. So the Amended Notice of Appeal is incompetent. Referred to Mamman V. Bwacha (2017) 1 NWLR (Pt. 1547) 425 at 460, GTB. V. Innoson Nig. Ltd (2017) 16 NWLR (Pt. 1591) 181 at 196, SLB Consortium Ltd V. NNPC (2019) 9 NWLR (Pt. 1252) 317 at 337.
It was submitted the Appellants have flouted the mandatory provisions of Section 24(1) of the Court of Appeal Act, Order 7 Rule 4 of the Court Appeal Rules, Section 2 (1) of the Legal Practitioner Act and Section 243(b) of the Constitution (as amended). The consequence of the above was that the Amended Notice of Appeal of the Appellants was incompetent and should be struck out.
Responding in the Appellant’s Reply Brief, the Appellant’s Counsel submitted that the preliminary objection, of the 3rd – 6th Respondents was misconceived, frivolous and a calculated attempt to cause unnecessary delay to the hearing and determination of this appeal.
It was submitted that the Amended Notice of Appeal substantially met the requirement for signature as the NBA Stamp clearly indicate to anyone looking at the document who amongst the Counsel signed the Amended Notice of Appeal. It was submitted that the signature on the Amended Notice of Appeal complied with the provisions of Section 24(1) of the Court of Appeal Rules 2021, Section 2(1) of the Legal Practitioners Act.
It was submitted that the signature on the amended Notice of Appeal meets the requirement set forth in SLB CONSORTIUM Ltd. V. NNPC (2009) 9 NWLR (Pt. 1229) 317 at 337 as follows:
(a) There is a signature on the Amended Notice of Appeal.
(b) The name of the Counsel “Ojo Eshiemokha” is clearly written.
(c) Whom the Counsel represents is not in doubt, he is a Counsel to the Appellant who also affixed his NBA stamp, showing that he is a Counsel to the Appellant. The Counsel also supplied his GSM Number as well as his e-mail address.
It was submitted that the identity of the Counsel who signed the Amended Notice of Appeal was very pronounced and visible on the Notice of Appeal, sufficient to give notice of the signatory on the amended Notice to anyone and was incapable of misleading anyone as to who the Counsel was. That the Preliminary Objection raised was more of technicality rather than substantial justice.
He urged the Court to refuse the preliminary objection and consider the substantial appeal.
RESOLUTION OF PRELIMINARY OBJECTION
The Amended Notice of Appeal was filed an 31/5/2019. On the Notice is the NBA Stamp and seal of Esemokhai Goodluck Ojo.
On the process are the names of Ojo Esemohai (Jnr), A.E. Ainabor Esq, H.A. Murtala Esq.
On the process is a signature which the Appellants’ Counsel Ojo Esemokhai (Jnr) claimed to be his. The Respondent’s Counsel argued that the signature on the amended notice of appeal did not disclose who signed it amongst the three legal practitioners listed on the process acting on behalf of the Appellants. It was the Respondents’ Counsel contention that one Esemokhai Goodluck Ojo presumably a lawyer whose stamp was fixed to the affixed Amended Notice of Appeal did not sign same.
It is the Appellants Counsel’s assertion that the signature on the Amended Notice of Appeal was his.
Now the question: Is the signature on the Amended Notice of Appeal that of Esemokhai Goodluck Ojo who has his NBA Stamp on the document? To answer or resolve this issue, this Court shall proceed to consider other documents filed by the Appellants Counsel and signed by Esemokhai Goodluck Ojo as contained in the Record of Appeal and determine whether these signatures on the documents are similar to the signature on the Amended Notice Appeal being contested by the Respondents Counsel. In doing this, this Court takes coverage and derives authority from settled principles and case laws to the effect that a Court or Judge has a right to look at a document in the file and in this case the record book. See Agbahomovo V. Eduyegbe (1999) 3 NWLR (Pt. 594) 170 at 183. Without doubt, our Courts have held in a plethora of decided cases that a Court can look at documentary evidence in its file to resolve issues before it. See Akinola V. V.C. Unilorin (2004) 11 NWLR (Pt. 885) 610; Agbaisi V. Ebikorefe (1997) 4 NWLR (Pt. 502) 630; Nwabude & Anor V. Ugodu & Ors (2011) LPELR 9173 (CA). It is therefore trite that a Judex has a right to look at all the documents and process filed so long as it would assist him in the proper adjudication of the issues before him. See Abiodun V. AG. Federation (2007) LPELR – 8550 (CA).
Against this background, I proceed to consider the documents with the signatures of Esemokhai Goodluck Ojo in the Record Book and compare same with the signature on the Amended Notice of Appeal. The documents and processes in the record of Appeal consist of the following amongst others.
1. Motion on Notice filed at the lower Court on 20/5/2019.
2. Notice of Discontinuance of Appeal filed on 28/2/2018
3. Notice of Appeal filed on 13/12/2017
4. Notice of Appeal filed on 14/5/2018
5. Written Address to the Motion on Notice for interlocutory injunction filed on 9/2/2018.
6. Motion Exparte filed as 19/2/2018
7. Letter with Reference OE/OEJ/50/2017 dated 14/11/2017 addressed to the Executive Council of the Edo State Government in respect of the Chieftaincy of Emiegba.
The above documents and processes contain the signatures of Esemokhai Goodluck Ojo. I have compared the signature to that contained in the Amended Notice of Appeal. It is unequivocal that the signature of Esemokhai Goodluck Ojo on these documents is the same with that on the Amended Notice of Appeal. In doing this, I take solace in Section 101 (1) of the Evidence Act. 2011 which provides:
“In order to ascertain whether a signature, writing, seal or finger impression is that of a person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose.”
In the case Gboko V. State (2007) 17 NWLR (Pt. 1063) 272, at the Court of Appeal the issue arose whether the trial Court was right in comparing the signatures of the 1st Appellant in Exhibits 1, 1A, and 4 by invoking the provision of Section 108(1) of the Evidence Act (now Section 101 (1) of the Evidence Act 2011) without calling for the addresses of Counsel. The Appellate Court held Section 108 (1) of the Evidence Act now Section 101(1) of the Evidence Act 2011 gave the Court the power to make the comparison. It was held that there was no provision that before the Court can invoke that power parties must first address it. It was further held that the Court is entitled to examine all disputed writings and from its own opinion without the necessity of calling on parties to address it on that point. The apex Court also considered the statement in issue and came to the conclusion as was done by the lower Court there were similarities therein.
The comparison is further fortified by the NBA Stamp of Esemokhai Gookluck Ojo affixed to the Amended Notice of Appeal. Unequivocally it leads to the conclusions:
(a) That there is a signature on the Amended Notice of Appeal.
(b) That the signature belong to Esemokhai Goodluck Ojo who is the Counsel to the Appellant.
There is no doubt as to the identity of the Counsel who signed the Amended Notice of Appeal and he is Counsel of the Appellant as revealed above – Esemokhai Goodluck Ojo (Jnr). This settles the preliminary objection raised by the Respondents’ Counsel.
This appeal is therefore considered competent. The preliminary objection is accordingly dismissed.
Having dismissed the preliminary objection, I now consider the Appeal on its merit.
APPELLANTS’ BRIEF OF ARGUMENT: ISSUES DISTILLED
1. Whether in the circumstances and facts of this case, the trial Court ought not to have struck out the Appellant’s case after granting leave to them to withdraw the suit instead of dismissing it out rightly.
2. Whether the cost of N75,000.00 awarded by the trial Court against the Appellants in the circumstances of this case was not arbitrary, punitive and excessive going by the fact that the trial Court acted on the leading information supplied to it by the Counsel to 3rd – 6th Respondents.
ISSUE 1.
It was submitted that by the provision of Order 23 Rule 1 of the Edo State High Court (Civil Procedure) Rules, 2012, a Claimant may at any time withdraw or discontinue his action against any or all the Defendants before receipt of the statement of defence. However, the mere filing of notice of discontinuance does not bring the matter to an automatic end. It is still desirable for the Court to grant leave for the suit to be withdrawn or discontinued to enable the Court decide on the issue of cost to be awarded to the Defendant.
That the above position was affirmed by this Court in Stabilini Visioni (Nig) Ltd V. Standerton Ventures Ltd (2011) ALL FWLR (Pt. 602) 1735 at 1749.
That in this appeal, the Appellants sought and obtained the leave of the trial Court to withdraw their suit and the Court made an order as to cost after granting the Appellants leave to withdraw their suit. That the complaint of the Appellant in this appeal is that the trial Court, having awarded cost to the Defendants, ought not to have dismissed the suit since none of the Defendants had filed a statement of Defence to the suit. Refer to the case APGA & Anor V. Okorie & 13 Ors (2011) ALL FWLR (Pt. 577) 625 at 643.
It was submitted that in line with the above decision the appropriate order he should have made in the circumstance of this case was to have struck out the matter. Counsel referred to the case Abayome Babatunde V. Pan Atlantic Shipping & Transport Agencies Ltd & 2 Ors (2007) ALL FWLR (Pt. 372) 1721 at 1751 – 1752.
It is submitted that the only instance when a Court seised of jurisdiction to entertain a suit may order a dismissal of same other than on the merits of the case is where the case was initiated by abusing the Court process. Cited Believers Fisheries Dredging Nig. Ltd & Anor V. U.T.B Trustees Ltd (2010) ALL FWLR (Pt. 545) 317 at 333.
Concluding on this issue, Counsel argued that the trial Judge acted arbitrarily by taking into account extraneous consideration in dismissing the suit instead of striking it out. He urged the Court to resolve the issue in favour of the Appellant.
2nd ISSUE
The second issue is in respect of the cost of N75,000:00 awarded by the trial Court against the Appellant. It was submitted that cost follows events and are awarded at the discretion of the Court. The discretion has to be exercised judicially and judiciously. Counsel cited the cases ACB & Anor V. Ifeanyi Ajugwo (2012) ALL FWLR (Pt. 607) 697 at 720, Umo V. Udonwa (2014) ALL FWLR (Pt. 721) 1608 at 1622 – 1623.
Submitted that when trial Court exercised its discretionary power judicially and judiciously, an Appellate Court will not interfere. Before it could be said that a Judge exercised his discretion judiciously and judicially, that is to say with sufficient, correct and convincing reasons and not on his whims and caprices, he must have examined and considered all materials before him side by side with the applicable Rules of Court.
It was argued that had the trial Court in the circumstances of this case exercised its discretion judicially and judiciously in awarding the cost of N75,000:00 against the Appellants and in favour of the 3rd to 6th Respondents when no pleadings had been filed by them or any of the Respondents to this case and when Counsel for the 3rd – 6th Respondents appeared only thrice in Court before the dismissal of the suit. Submit that the cost of N75,000:00 awarded to the 3rd – 6th Respondents was arbitrary, punitive and excessive in the circumstance of the case.
That it was erroneous of the Court to have dismissed the suit and award a whopping cost of N75,000 when same had not even proceeded to hearing. Refer to the case Nigerian Construction Consortium Ltd. V. Scoa (Nig) Ltd. (1991) 7 NWLR (Pt. 201) 80 at 97.
Counsel urged the Court to hold that the cost of N75,000 awarded by the trial Court against the Appellants founded on an erroneous belief that this suit on appeal constituted an abuse of Court processes to the appeal filed in suit No. HAK/3/2015 is excessive, arbitrary against the Appellant was arbitrary, punitive and excessive.
3RD – 6TH RESPONDENTS BRIEF AND ISSUES
Two issues were fashioned out by the 3rd – 6th Respondents for determination by this Court.
“1. Whether the learned trial Judge was right in dismissing the Appellants case instead of striking out in view of the peculiar facts of the case.
2. Whether the learned trial Judge exercised his discretion properly and judiciously in awarding N75,000 cost in favour of the Respondent.
Arguing the First Issue, Respondent’s Counsel submitted that a close look and examination of Suit No. HAG/1/2018, the Notice of Appeal, and suit HAG/3/2015 and the ruling at pages 255-274 of the record show that the Respondents were subjected to defending the same cause twice. Refer to the case Arubo v. Aiyeleru (1993) 3 NWLR (Pt. 280) 126 at 142. That an abuse of Court process simply means that the process of the Court has not been made or used bonafide and properly. That it is a fundamental vice which is usually punished with a dismissal.
Counsel submitted that assuming without conceding that the suit of the Appellant did not manifest abuse, that the order of dismissal by the learned trial Judge was proper in view of the facts of the case – the Appellants made application to withdraw Suit No. HAG/1/2018 on 2/5/2018 to which the Counsel to the Respondent consented. The Counsel asked for costs and a dismissal of the action. Thus, in the absence of any reason for withdrawing, the proper order to make in the circumstance, was an order of dismissal. He cited the case In Re: Apeh (2017) 11 NWLR (Pt. 1576) 252 at 276.
Urges the Court to resolve the issue in favour of the Respondents.
On the second issue in respect of the cost of N75,000, it was submitted that cost follows event. That costs are awarded to the successful litigant, which is always at the discretion of the Court. Refer to Order 47 Rule 3 and 7 of the Edo State High Court (Civil Procedure) Rules 2012.
In fixing the amount of cost, the principle to be observed is that the party who is right is to be indemnified for the expenses to which he has been put in establishing his claim, defence or counter-claim but the Court may take into account all the circumstances of the case. That the Appellant merely offered the sum of N5000 having conceded that the Respondents were entitled to cost.
The Respondents set out the special circumstance warranting the grant of N75,000 to them. These circumstances included the filing of processes, numerous adjournments at the instance of the Appellants, Appellants flouting the order of the lower Court to amend their processes. Further to these, the claimant had earlier filed a similar action that was struck on 9/10/2017 with a cost of N40,000 awarded against the Appellant by the lower Court which remain unpaid. Also the Appellants filed an appeal against the other of 9/10/2017. That while the appeal against the ruling of 9/10/2017 was pending the claimants filed a fresh suit which is HAG/1/2018.
Accordingly, Respondents’ Counsel urged the Court not to disturb the award of N75,000.00 made by the lower Court. The Appellate Court will not interfere with the exercise of such discretion unless the lower Court embarked on wrong principles of law or that such an exercise was not judicious and judicial. Refer to the case of Wurno V. UAC Ltd (1956) 1 FSC 33.
In the circumstance, Counsel urges the Court to resolve the second issue in favour of the Respondents, and dismiss the appeal and uphold the ruling of the lower Court.
Flowing from the background of the issues canvassed by the parties and the submissions thereon, this Court adopts the issues formulated by the Respondents for consideration and determination in this appeal:
“1. Whether the learned trial Judge was right in dismissing the Appellant’s case instead of striking out.
2. Whether learned trial Judge exercised his discretion properly and judiciously in awarding the sum of N75,000 cost in favour of the Respondent.”
The Appellants’ argument is that their Suit should not have been dismissed by the lower but struck out. While it is the contention of the Respondents that the Appellants’ action rightly deserved being dismissed.
In considering whether it was appropriate to have dismissed the Appellant action at the lower Court or strike out same, the background to the dismissal is pertinent.
The Appellants on 28/7/15 filed an action HAG/1/2015 in respect of a chieftaincy matter. The Defence raised issue of jurisdiction and it was set down for hearing. The learned trial Judge heard the motion challenging the jurisdiction. The trial Court ruled and declined jurisdiction. The Appellants aggrieved with the ruling filed an appeal challenging the ruling of the lower Court. While this appeal was pending, the Appellants filed a similar suit no. HAG/1/2018. The subject of this appeal. The 3rd – 6th Respondents filed a number of processes against the fresh suit in which the issue of abuse and the incompetence of the claimant’s action were raised. The claimant did not challenge the processes filed including a motion on notice. The Appellants withdrew their suit. The Respondent raised no objection against the withdrawal but applied that the matter be dismissed for abuse of Court process. The suit was consequently dismissed. Not satisfied with the order of dismissal, the Appellants, filed this appeal.
From the above, it is glaring that the Appellants filed two actions at different times in respect of the same subject matter. These suits were withdrawn due to incompetence.
Does the above constitute abuse of Court process! Abuse of Court process generally means that a party in litigation takes a most irregular, unusual and precipitate action in the judicial process for the sake of action and litigation, merely to waste valuable litigation time. It is an action which would be avoided by the party without doing any harm to the matter in dispute. The process of Court is used merely to overreach the adversary to the direct annoyance of the Court. The Court process is initiated with malice or in some premeditated or organized vendetta aimed at frustrating either the quick disposal of the matter or the abatement of the matter for no good cause. The Court process could also be said to be abused when there is no iota of law supporting it. In other words, the Court process is premised or founded on frivolity or recklessness.
It is settled law that generally, abuse of Court process contemplates multiplicity of suits between the same parties in regard to the same subject matter and on the same issue. The bottom line of these principles in regard to abuse of process is that, to institute an action during the pending of another suit claiming the same relief is an abuse of Court process and the only course open to the Court is to put an end to the suit. See Oyeyemi V. Owoeye (2017) 12 NWLR (Pt. 1580) Page 364 at 397 – 398, Ntuks V. NPA (2007) 13 NWLR (Pt. 1051) 392, Victor Umeh V. Professor Maurice Iwu & Ors (2008) Vol. 41 WRN 1 at 18.
From the record of appeal, it is revealed that the two actions instituted by the Appellant (Claimant) at the lower Court were instituted at different times even though on the same subject matter and between the same parties. The first suit HAG/1/2015 was struck out for want of jurisdiction. This culminated to the filing of another suit HAG/1/2018. This action was withdrawn by the Appellant (Claimant) on 2/5/2018. This action was dismissed upon the application of the 3rd – 5th Defendants, that the matter be dismissed.
In the matter before hand, no two actions were filed simultaneously. Suit No. HAG/1/2018 was filed after HAG/1/2015 was struck out. Invariably HAG/1/2018 was withdrawn thereafter. I do not consider this an abuse of Court process. The filing of two suits at different times in the opinion of this Court does not constitute multiplicity of actions. HAG/1/2018 was not instituted during the pendency of HAG/1/2015 but after suit HAG/1/2015 had been struck out. It is of importance to note that the first suit had not proceeded to hearing or was part heard before it was withdrawn.
It is equally pertinent to note that Suit HAG/1/2018 was withdrawn before a date for the hearing of the matter had been fixed. In any case, the Defendants had not filed their statement of Defence at the material time the action was withdrawn. In a situation of this nature, where an application for discontinuance or withdrawal is made, one of the things to be considered by a trial Court is the stage the application was made. If it is made before a hearing date has been fixed, the proper order to make is one of striking out. This is because there is no litis contestatio and a determination on the merit has not been made after hearing evidence of either the whole or fundamental part of the claim – All Progressive Grand Alliance v. Umeh (2011) 8 NWLR (Pt. 1250) 544 at 567 per Tabai JSC:
“Against this background, it is firm view of this Court and accordingly holds that the appropriate decision the lower Court should have taken upon the withdrawal of the complainant action at the lower Court was to have struck out the matter instead of it being dismissed. The circumstances surrounding the action did not deserve dismissal of same. This cannot stand. Issue one is accordingly resolved in favour of the Appellant.
ISSUE NO. 2
Issue two is whether the trial Court exercised its discretion properly and judiciously in awarding the sum of N75,000 cost to the Respondent.
It was argued by the Appellant’s counsel that in awarding the cost the trial Court did not take into consideration the guiding principles on the assessment and award of costs highlighted in the case of ACB Ltd & Anor V. Ifeanyi ajugwo (Supra) but merely dwelt on the misleading submissions of learned Counsel for the 3rd – 6th Respondents.
The Respondent Counsel submitted that in fixing the costs of N75,000 the learned trial Judge took into consideration the special circumstances of the case.
It is noted that the lower Court had earlier awarded the sum of N40,000 against the Appellants which they failed to pay.
It is settled principle of law that the award of cost is always at the discretion of the Judge, of course guided by laid down principles and not by private opinion. See Akpela V. Chukwu (2005) All FWLR (Pt. 268) 1885. The Court’s discretion must be exercised judicially and judiciously. Usually, cost follows event and are often not awarded as a punitive measure nor are they designed or meant to be a bonus to the successful party.
In this case, I do not think the lower Court exercised its discretion arbitrarily or mala fide or influenced by irrelevant considerations, at the expense of relevant consideration.
I have no doubt the lower Court was guided by the principles of law exercised its discretion judicially and judiciously in awarding the sum of N75,000 to the 3rd-6th Respondents. It should nor be forgotten that that was the second action instituted by the Appellants and terminated upon their application. I do not consider the sum of N75,000 awarded as cost as excessive or punitive. It is appropriate in the circumstance.
For the above reason, the second issue is resolved in favour of the 3rd -6th Respondents.
In the final analysis, this appeal succeeds in part. It succeeds to the extent that the dismissal of the Suit No. HAG/1/2018 is wrong in law and is accordingly commuted to striking out. The appeal fails in respect of the second issue regarding the award of the cost of N75,000 in favour of the 3rd – 6th Respondents which award is sustained by this Court.
Parties to bear their respective costs.
UCHECHUKWU ONYEMENAM, J.C.A.: I had the privilege of reading before now the draft of the lead judgment just delivered by my learned brother, SAMUEL ADEMOLA BOLA, JCA.
I adopt the reasoning and conclusion reached in allowing the appeal. I also allow this appeal and dismiss the ruling of the High Court of Edo State delivered on 21st March, 2018 by S. A. Omonwa, J. in Suit No. HAG/1/2018.
JAMES GAMBO ABUNDAGA, J.C.A.: I have been availed a draft of the judgment delivered by my learned brother, Samuel Ademola Bola, JCA. The reasoning and conclusion are agreeable to me, and I therefore adopt it as mine.
I shall however make a few remarks.
The challenge to the competence of the amended Notice of Appeal seemed hinged on the fact that even though the stamp of a counsel was affixed on it, the signature of the particular counsel who signed it was not linked to any of the four persons whose name appears on it as counsel for the appellants. This kind of scenario is not new to this Court. The Court, faced with a similar situation in the case of N. C. Angus (W.A.) Ltd & Ors v. FRN (2021) LPELR- 52837 (CA), held:
“The appellant’s contention on the first issue is that the respondent’s motion on notice had the names of Nwandu K. Ukoha Esq., and Agbo S. Abuh (Mrs.) and the NBA seal of Agbo Sophia Abuh was fixed without indicating among the two of them who actually signed the motion paper. Furthermore, the written address in support of the said motion was unsigned. The appellants therefore argued that such lapses rendered the processes incompetent. Jurisdiction is fundamental to adjudication. It is a radical and crucial and where a Court proceeds without jurisdiction to hear the case, the proceedings so embarked upon by the Court are a nullity ab initio however well conducted the proceedings and brilliantly decided the issues agitated therein are. As rightly posited, defect in the Court’s competence is intrinsic and not extrinsic to the entire adjudicatory process. See ONYEKWULUJE V. ANIMASHAUN (2019) 4 NWLR (Pt. 1662) 242. The appellants’ first complaint relates to affixing the approved seal and stamp of the NBA on the respondent’s motion on notice filed on 2/4/2019. The contention is not that the NBA stamp was not affixed but that it was unclear who among the two legal practitioners affixed it because none ticked against his name. It is pertinent to state that the purpose of the Nigerian Bar Association stamp and seal is to ensure that legal practitioners who file processes in Court have their names on the roll of legal practitioners in Nigeria and that imposters or quacks do not infiltrate the legal profession. Unlike in the cases being relied upon by the learned appellants counsel, the motion on notice in the present case was duly signed and stamped by the counsel for the respondent. In compliance with Rule 10 (1) of the Rules of Professional Conduct, the seal of Agbo Sophia Abuh was affixed beside the names of two counsel for the respondent. The first name is Nwandu K. Ukoha, Esq., while the second name is Agbo S. Abuh (Mrs.) and above which is the signature. It is settled that the failure to affix the approved seal and stamp of the NBA on a process does not render the process null and void. It is an irregularity that can be cured by an application for extension of time and a deeming order. See YAKI V. BAGUDU (2015)18 NWLR (Pt. 1491) 288, WAYO V. NDUUL (2019)4 NWLR (Pt 1661) 60 and EMECHEBE V. CETO INTERNATIONAL (NIG) LTD (2018) 11 NWLR (Pt 1631) 520. In MAINA V. E.F.C.C. (2020) 2 NWLR (Pt. 11708) 230 at 241 – 242, this Court was confronted with similar argument of the appellants and it emphatically held that where there is a seal on a Court process, it is otiose to tick the name of counsel whose name is in the seal as the signatory on the document or process. I wholeheartedly subscribed to that view and state further that the appellants’ submission that the signature on the motion on notice filed on 2/4/2019 is not traceable to any of the persons whose name appeared as counsel to the respondent lacks substance.”
Per SHUAIBU, JCA (Pp. 7-9, paras. A-D).
His Lordship in this appeal even took the issue further in comparing the signatures on processes filed in the matter which were evidently filed by the said Esemokhai Goodluck Ojo (alias Ojo Esemokhai).
Therefore the contention that the amended Notice of Appeal was not endorsed or signed by a qualified legal practitioner in accordance with Sections 24 (1) and 2 (1) of the Legal Practitioners’ Act lacks substance. There is indeed a competent appeal.
The other issues on the substance of the appeal were well considered in the leading judgment. The resolution cannot be faulted.
In the result, the appeal succeeds in part.
In consequence, I abide by the order that parties bear their costs.
Appearances:
M. E. OKOJIE, ESQ. For Appellant(s)
I.M.C. OHIOGWEHEI For Respondent(s)
