INTERNATIONAL PAGEANTS & FILMS LTD & ANOR v. GTB & ORS
(2022)LCN/16872(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, May 05, 2022
CA/A/660/2016
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Muhammed Mustapha Justice of the Court of Appeal
Between
1. INTERNATIONAL PAGEANTS & FILMS LTD 2. PRINCE CHUDI CHARLES CHUKWUANI APPELANT(S)
And
1. GUARANTY TRUST BANK 2. ARIK AIR LIMITED (OWNERS OF WINGS INFLIGHT MAGAZINE). 3. STYLE HOUSE FILES LTD. RESPONDENT(S)
RATIO
THE PRIMARY PURPOSE OF A REPLY BRIEF
The apex Court in Oguanuhu & Ors vs. Dr Emmanuel I. Chiegboka (2013) LPELR – 19980 (SC), reiterated the fact that a reply brief as the name implies is not meant to be a repetition of the arguments in the appellants brief, nor is it an opportunity to reemphasize the arguments in the appellants’ brief. Its primary purpose according to the Apex Court is to respond to new issues raised in the respondent’s brief. See Alh. Ibrahim Abdullahi vs. The Military Administrator & Ors (2009) LPELR – 27 (SC). In the recent case of Mathew vs. the State (2019) LPELR – 46930 (SC), the Supreme Court speaking through Ariwoola JSC, emphasized the point that a reply brief is not meant to afford the appellant an opportunity for re- argument or another bite at the cherry, nor to repeat the arguments or to extend the scope of arguments. See also FRN vs. lweka (2013) 3 NWLR (pt. 1341) 285, Godsgift vs. The State (2016) LPELR – 40540 (SC), Idagu vs. The State (2018) LPELR – 4434 (SC). Clearly what the appellant did by introducing arguments bordering on demurrer proceedings, in the reply briefs, which arguments were never raised in the respondents’ brief smacks of introducing new arguments as contended by the learned counsel for the 1st and 2nd respondents, and I do agree that a reply brief is not a forum for introducing fresh arguments as the appellant tried to do. See Lasisi Ayanrinola Akayepe & anor vs. Ganiyu Ayanrinola Akayepe (2009) LPELR – 326 (SC). PER BARKA, J.C.A.
THE CONCEPT OF ABUSE OF COURT PROCESS
My Lords, permit me to be guided by the wisdom of my lord Ogunbiyi JSC in Chief Great Ogboru vs. Emmanuel Uduaghan & sons (supra) on what constitutes the concept of abuse of Court process. The erudite jurist did say that:
“The concept of abuse of Court process has been given a precise definition which is to say the process of the Court has not been used bona fide and properly. See CBN vs. Ahmed & Ors (2001) 5SC (pt. ii) 146; Ediorode vs. Ikine (2001) 12 SC (pt. 11) 125. It involves an improper use of judicial process by a party in litigation, see Agwasim vs. Ojichie (2004) 10NWLR (pt. 682) 613 AT 624-625. Furthermore, the concept is also characterized as an action initiated without a just or reasonable cause. It merely takes an undue advantage of the reason that the process is available for indulgence. It is also a situation where the law is wrongly interpreted for the purpose of accommodating actions in bad faith. It impugns the dignity of the Court, further still and in the legal parlance, the phrase abuse of judicial process is generally employed when a party improperly uses to the irritation and annoyance of his opponent the efficient and effective administration of justice. An example is where a multiplicity of actions on the same subject matter are instituted against the same opponents on the same issues. See Okorodudu vs. Okoromadu (1977) 3SC 21, Okafor vs. AG Anambra State (1991) 6NWLR (pt. 200) 659 and ACB vs. Nwaigwe (2011) 7NWLR (pt. 1246) 380. The concept of abuse therefore lies in the multiplicity and the manner employed for the exercise of the right. See Saraki vs. Kotoye (supra).”
See also Society Bic SA vs. Charzin Ind. Ltd (supra),Ogoejeofo vs. Ogoejeofo (supra), Dana Airlines Ltd vs. Bamaiyi & anor (2017) LPELR – 43054 (CA) and Central Bank of Nigeria vs. Saidu H. Ahmed & Ors (2001) FWLR (pt. 56) 670, where the Apex Court did state that:
“I venture to state quite concisely and clearly that an abuse of the process of Court is only possible by improper use of the issue of the judicial process or process already issued to the irritation and annoyance of the opponent. It is the law that multiplicity of actions on the same matter may constitute an abuse of the process of the Court. But it is so only where the action is between the same parties with respect to the same subject matter. The Court has a duty in such situation to interfere to stop an abuse of its process. See Okorodudu vs. Okoromadu (1977) 3SC 21.” PER BARKA, J.C.A.
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Federal High Court of Justice, Abuja Judicial Division, sitting in Abuja, in suit with Number FHC/ABJ/CS/467/14; between International Pageants & Films Ltd and one Or vs. Guaranty Trust Bank Plc and 2 Ors, delivered on the 30th day of September, 2015. By the said ruling, the trial Court struck out the suit for being frivolous, vexatious and an abuse of the Court process, further ordering that plaintiff and their counsel desist from filing any further actions relating to the alleged copyright infringement of the Lagos Fashion Week by the defendants particularly the 3rd defendant, Style House Files Ltd.
Being dissatisfied with the decision of the lower Court, appellant on the 12th of November, 2015 filed a Notice of Appeal predicated on three grounds of appeal, and the appeal having been entered to this Court on the 29th of November, 2016, though deemed properly transmitted on the 2nd day of March, 2021, appellant proceeded to file a brief of argument on the 3rd of March, 2021. Appellant also responded to the briefs filed by the respondents on the 31st of August, 2021, and on the 21st of February, 2022 when the appeal cropped up for hearing, Mr. Edem, the learned counsel who appeared for the appellants, identified the briefs filed by him, adopted the same and urged the Court to allow the appeal, and to order for the accelerated hearing of the suit before another Court.
In opposing the appeal, Mr. Aliu who appeared for the 1st respondent, filed a brief of argument on the 29th of June, 2021, though deemed properly filed on the 30th of June, 2021, and on the same 21st February, 2021, being the scheduled hearing date, learned counsel identified the brief filed and urged the Court to dismiss the appeal. In doing so, counsel went further to urge the Court to discountenance the reply brief filed by the appellant for having introduced a fresh issue and also for having been filed out of time.
The 2nd respondent also in opposition to the appeal, filed a brief settled by Ademola Ekundayo on the 25th of August, 2021, but deemed filed on the 9th of November, 2021, and on the scheduled hearing date, counsel identified the brief, adopted the same and urged the Court to dismiss the appeal with substantial costs. He further complained that the reply brief filed in respect of the brief filed by him was filed out of time, and thereby urged the Court to discountenance it.
The 3rd respondent also filed a brief on the 29th of June, 2021, deemed filed on the 30th of June, 2021. The brief settled and argued by Mr. Akinrinmade urged the Court to dismiss the appeal.
The brief facts germinating the appeal according to the appellants through their counsel, is that the appellants are the bona fide owners of a copy right literary work known as the “Lagos Fashion Week Events and Organizational Scheme” authored by the 2nd appellant and published in the year 1993, though reprinted in the year 2011 and deposited at the National Library Abuja. The complaint of the appellants pertains to the performance in public of the contents of the appellants’ copy righted works, i.e. Lagos Fashion Week Events & Organizational Scheme by different parties on different dates without their authorization or consent, thus infringing intellectual property rights of the appellants. With regards to the suit which gave rise to the instant appeal, it is the statement by the Appellants that the subject matter of the various suits filed by the appellants pertained to the infringement of the intellectual property rights of the appellants by different and distinct parties on distinct dates. Appellants alluded to the time when the 3rd respondent in partnership with MTN Nigeria Ltd and other corporate organizations performed in public the contents of the appellants copy righted literary work, illegally adapted and christened MTN Lagos Fashion and Design Week 2011 without the authorization of the appellants, which led to the action in FHC/ABJ/CS/848/2011. That while the suit was still pending, 1st and 2nd respondents as Chief Financial Sponsors of the respondents, still went ahead and organized a performance in public of the contents of the copy righted literary work, illegally adapted and christened as Guaranty Trust Bank Lagos Fashion and Design Week 2013, without the consent and authority of the appellants. He referred to the suit with No. FHC/ABJ/CS/686/2013 against corporate organizations that infringed and violated the intellectual property rights of the appellants, stating that the lower Court failed to determine the said suit on merit but rather struck it out on technical grounds, and when appellants appealed the decision striking out the suit, owing to the fact that appellants failed to transmit records in respect of the appeal, and a notice of discontinuance was filed in respect of the appeal. Those appellants then took out an action in respect of suit with No. FHC/ABJ/CS/467/2014 against the 1st and 2nd respondent, but the 3rd respondent was joined in the case as a respondent with the leave of Court. He stated that the subject matter and the parties in the two cases listed as FHC/ABJ/CS/686/2013 and FHC/ABJ/CS/848/2011 are not the same, nor is the suit with No. FHC/ABJ/CS/467/2014 on the same subject matter and parties. That on the 20th day of May, 2015, the Court of Appeal in appeal with Number, CA/A/284/M/2012, dismissed the appeal lodged by the 3rd respondents in suit no. FHC/ABJ/CS/848/2011 and ordered that the suit with No FHC/ABJ/CS/848/2011 be tried on the merit. That even though the order was brought to the attention of the trial Court, the lower Court nonetheless granted the preliminary objection by the 1st respondent, and struck out appellants’ suit with no. FHC/ABJ/CS/467/2014 on the basis of multiplicity of actions, notwithstanding the fact that suit with No. FHC/ABJ/CS/686/2013 was struck out at the Federal High Court with no appeal pending thereon. Premised on the above therefore, and displeased with the decision of the lower Court, thus the instant appeal.
For the determination of the appeal, earned counsel for the appellant submitted two issues for resolution as follows: –
i. Whether suit no. FHC/ABJ/CS/467/2014 can be said to be an abuse of Court process of suit no. FHC/ABJ/CS/686/2013 which was struck out by the lower Court and the appeal discontinued at the Court of Appeal Abuja or put differently whether a subject matter that was infringed upon on different dates by different and distinct parties constitutes abuse of Court process.
ii. Whether a Court can bar a litigant from ventilating its legal rights in a Court of law.
The 1st respondent also submitted the following two issues: –
i. Whether the lower Court was right in holding that suit before it, i.e suit no. FHC/ABJ/CS/467/2014 was filed in abuse of Court process and consequently striking out the suit.
ii. Whether in view of the continuous abuse of Court process by the appellants, the lower Court was right in ordering the appellants not to file any further actions relating to the infringement of its copyright in “Lagos Fashion Week”.
For the 2nd respondent, the following issues were crafted for resolution.
i. Whether suit no. FHC/ABJ/CS/467/2014 can be said to be an abuse of Court process of suit no. FHC/ABJ/CS/686/2013 which was struck out by the lower Court and the appeal discontinued at the Court of appeal Abuja or put differently whether same subject matter that was infringed upon on different dates constitutes abuse of Court process.
ii. Whether where there is obvious abuse of Court process the Court can bar a litigant from relitigating on the same subject matter.
Lastly, the 3rd respondent crafted a sole issue to wit; whether the trial Court acted correctly when it dismissed the appellants (as Plaintiffs) suit for constituting abuse of Court process, having regard to the entire material before the lower Court.
Accordingly, I have accorded all the issues a dispassionate consideration and my humble view is that all the issues turn on the resolution of a single question which is whether the lower Court was right or wrong in holding that the appellant’s processes constituted an abuse of Court process. That being the case, I am minded to adopt the two issues distilled by the appellants, being the complainant in the appeal, which in any case is not different from those issues formulated by the respondent counsels, all aggregating to the question whether the trial Court was wrong or right striking out appellants process on the basis of being an abuse of Court process.
ISSUE ONE
Whether suit no. FHC/ABJ/CS/467/2014 can be said to be an abuse of Court process of suit no. FHC/ABJ/CS/686/2013 which was struck out by the lower Court and the appeal discontinued at the Court of Appeal Abuja or put differently whether a subject matter that was infringed upon on different dates by different and distinct parties constitute abuse of Court process.
It was the submission of the learned counsel for the appellant that the trial Court was wrong holding that appellants suit with No. FHC/ABJ/CS/467/2014 constituted an abuse of Court process due to the pendency of appeal in respect of suit with number FHC/ABJ/CS/686/2013, and also argued that the suit with No. FHC/ABJ/CS/686/2013 was struck out for having not having been determined on the merit, and furthermore that the notice of appeal dated the 11th of March, 2014 in respect of the suit discontinued, which fact was brought to the attention of the Court, and drew the Courts attention to the ruling of the Court below at pages 1097 of the record to the effect that suit with No. FHC/ABJ/CS/686/2013 is no longer in existence, and thereby wondered why the Court turned round and somersaulted in holding that the suit constituted an abuse of Court process. He argued that the trial Court failed to take judicial notice of the fact that the appeal in respect of suit no. FHC/ABJ/CS/686/2013 upon which the preliminary objection of the 1st and 3rd respondents was predicated upon was discontinued, and therefore no appeal subsisting.
Submitting further, counsel contended that the three suits with suit numbers, FHC/ABJ/CS/848/2011, FHC/ABJ/CS/686/2013 and FHC/ABJ/CS/467/2014 are dissimilar with distinctively different parties and subject matter, and couldn’t have constituted any abuse of the Court process. Analyzing the parties in the three suits, learned counsel maintained that the parties are dissimilar and distinctively different, and heavily leaning on the cases of Ogoejeofo vs. Ogoejeofo (2006) 1SC (pt. 1) 157 AT 163, and In Society Bic SA vs. Charzin Ind. Ltd (2014) 4NWLR (pt. 1398) 497 AT 547, insisted that the suits were not instituted simultaneously, and that the acts complained of having occurred at different dates and the parties different, cannot amount to a multiplicity of actions. He is of the opinion that the 3rd respondent actually applied to be joined as a party to the suit in FHC/ABJ/CS/467/2014 with the sole aim of applying that the suit be struck out, since he was originally not a party to the suit and therefore has no right to so apply.
On the subject matter not being the same, learned counsel alluding to the holding of the lower Court at page 1097, still maintained that the subject matter in the various suits under consideration are dissimilar and distinctively different, and referred to the finding by the lower Court to the effect that suit FHC/ABJ/CS/686/2013 does not exist, but surprisingly held that same was an abuse of Court process constituting a gross miscarriage of justice.
On the dissimilarity of issues and reliefs claimed, counsel pleaded with the Court to note that the infringement acts complained of by the appellants were committed by different parties and with different timings. He urged the Court to be guided by the decision in the case of Saraki vs. Kotoye (1992) 9NWLR (pt. 264) 156 AT 189 on circumstances giving rise to abuse of Court process, learned counsel urged the Court to hold that no abuse of Court process can be said to have arisen or occurred, and thereby uphold the appeal and order for accelerated hearing.
In his response to the issue, learned counsel for the 1st respondent submitted that when a case is premised on multiplicity of suits, two similar suits suffice in establishing the issue of abuse. He argued in summary that the appeal ought to be dismissed for reasons which he tabled as follows: –
i. The lower Court rightly held that the suit before it i.e. suit no FHC/ABJ/CS/467/2014 was filed in abuse of Court process based on proper evaluation of the evidence before it.
ii. There was ample evidence to show that multiple actions filed by the appellants were in abuse of Court process and that all the elements required to sustain an objection on the ground of abuse of Court process were established and present in the case before the lower Court i.e. suit No. FHC/ABJ/CS/467/2014. The same cause of action against the same parties had been previously submitted to the lower Court in suit No. FHC/ABJ/CS/686/2013 and the Court had held the same to be an abuse of Court process by virtue of the subsistence of suit No. FHC/ABJ/CS/848/2011. Yet the appellants commenced yet another suit against the same parties on same subject matter while suit no. FHC/ABJ/CS/848/2011 subsists.
iii. The lower Court held in suit no. FHC/ABJ/CS/686/2013 that the facts did not disclose a reasonable cause of action, yet the appellants proceeded to institute another action in suit no. FHC/ABJ/CS/467/2014 on the same set of facts. That amounts to an abuse of Court process and the withdrawal of the Notice of Appeal against the decision in Suit No. FHC/ABJ/CS/686/2013 is incapable of curing the abuse.
iv. The lower Court was right to order the appellants to refrain from filling further actions to enforce its alleged copyright against the respondents because the right of access to Court should not be employed in a manner that is vexatious, irritating or oppressive.
Learned counsel from pages 9 – 30 of the brief, proceeded to expand on the issue as can be seen anon.
The 2nd respondent also on the issue argued, and also in determining the meaning of abuse of Court process, relied on CBN vs. Saidu H. Ahmed & Ors (2001) FWLR (pt. 56) 670, and Saraki vs. Kotoye (1992) 9 NWLR 156, and further made reference to the suits filed by the appellant, the prayers, and claim therein to argue that the holding of the lower Court to the effect that same amounted to an abuse of Court process was correct, and the Court rightly ruled by striking out the suit. He argued also that appellants’ contention that suit no. FHC/ABJ/CS/467/2014 and FHC/ABJ/CS/686/2013 being dissimilar and disjunctively different as not being correct and referred to the motion for withdrawal positing that as at the time the motion was moved and granted withdrawing the appeal, the other suit had been filed. Also relying on Nzei vs. University of Nigeria (2017) ALL FWLR (pt. 906) 1471 on what constituted an abuse to the instant appeals and the competence of lower Court, argued that 2nd respondent ought to have waited for the appeal filed before the Court of Appeal to be heard and determined before filing suit no FHC/ABJ/CS/467/2014, failing which, filing a suit when the appeal on the same issue is pending constituted an abuse.
The 3rd respondent also on the issue after chronicling the antecedents that led to the instant appeal, submitted that all the three suits listed, relate to the 3rd respondent on the same subject matter and on the same issue seeking similar reliefs and cited the cases of Chief Victor Umeh vs. Prof. Maurice Iwu (2008) LCN/3602 (SC) and Oyewo vs. Shekoni & Ors in CA/L/168/2015 NGCA 51, submitting that appellants contention under paragraphs 1.0 – 4.50 was grossly misconceived and should be discountenanced. He submitted that the holding of the trial Court to the effect that the 3rd suit is an abuse was in no way in connection with the 2nd suit, and thereby urged the Court relying on Dumez Nigeria Ltd vs. UBA Ltd (2006) 14 NWLR (pt. 1000) 515 @ 527 per Rhodes Vivour JCA, (as he then was), to be wary of situations that give birth to conflicting decisions on the same subject matter, in conclusion urged the Court to dismiss the appeal.
Appellant counsel responded to the submissions of the 1st, 2nd and 3rd respondents by filing appellant’s response on point of law to each of the process. In the reply to the 1st respondents brief filed on the 31st of August, 2021, counsel complained that the preliminary objection was filed in defiance of the abolition of demurrer which occasioned a miscarriage of justice. Learned counsel went further to state that from the record, 1st respondent filed a statement of defense and referred to pages 503 – 514 of the said record and argued that 1st respondent by that statement failed to raise the issue contained in the preliminary objection dated the 23rd of February, 2015, contending that by the provisions of Order 23 of the Federal High Court Civil Procedure Rules 2019, demurrer has been abolished, and the 1st respondent’s application dated the 23rd of February, 2015 incompetent having been filed in defiance of demurrer which had been abolished. He thus contended that the lower Court failed to consider the legal issue raised by the demurrer and thus relied on an incompetent application. The further submission of learned counsel at pages 3 – 5 of the reply brief, still harped on the issue of demurrer which the learned counsel maintained was wrongly relied upon by the lower Court in striking out the appellant’s suit. In similar vein, Appellant’s response on points of law to the 2nd and 3rd respondents followed the same pattern word for word, and I see no need repeating the submissions.
The apex Court in Oguanuhu & Ors vs. Dr Emmanuel I. Chiegboka (2013) LPELR – 19980 (SC), reiterated the fact that a reply brief as the name implies is not meant to be a repetition of the arguments in the appellants brief, nor is it an opportunity to reemphasize the arguments in the appellants’ brief. Its primary purpose according to the Apex Court is to respond to new issues raised in the respondent’s brief. See Alh. Ibrahim Abdullahi vs. The Military Administrator & Ors (2009) LPELR – 27 (SC). In the recent case of Mathew vs. the State (2019) LPELR – 46930 (SC), the Supreme Court speaking through Ariwoola JSC, emphasized the point that a reply brief is not meant to afford the appellant an opportunity for re- argument or another bite at the cherry, nor to repeat the arguments or to extend the scope of arguments. See also FRN vs. lweka (2013) 3 NWLR (pt. 1341) 285, Godsgift vs. The State (2016) LPELR – 40540 (SC), Idagu vs. The State (2018) LPELR – 4434 (SC). Clearly what the appellant did by introducing arguments bordering on demurrer proceedings, in the reply briefs, which arguments were never raised in the respondents’ brief smacks of introducing new arguments as contended by the learned counsel for the 1st and 2nd respondents, and I do agree that a reply brief is not a forum for introducing fresh arguments as the appellant tried to do. See Lasisi Ayanrinola Akayepe & anor vs. Ganiyu Ayanrinola Akayepe (2009) LPELR – 326 (SC). The appellant having sought to introduce a fresh issue at the point of reply, cannot be heard, and accordingly the reply brief is liable to be discountenanced and is hereby discountenanced. That having been done, I now agree with Mr. Akinrinmade, that the starting point in the resolution of the issue is to identify the various processes examined by the lower Court in reaching its decision, and in that case, the following processes become relevant:
i. Suit with No. FHC/ABJ/CS/848/2011, filed against the following respondents.
i. Nigeria Copyright commission
ii. British council
iii. MTN Nigeria Communications Ltd
iv. Style House Files Ltd.
ii. Suit with No. FHC/ABJ/CS/686/2013 filed against the following respondents.
i. Nigeria copyrights Commission
ii. British Council
iii. MTN Nigeria Communications Nigeria Ltd
iv. Guaranty Trust Bank
v. Arik Air (Wings Inflight Magazine)
vi. Style House Files Ltd.
iii. Suit with No. FHC/ABJ/CS/467/2014 filed against the following respondents.
i. Guaranty Trust bank Plc
ii. Arik Aior Limited
iii. Style House Files Ltd.
The record goes on to show that appellants having filed suit with No. FHC/ABJ/CS/467/2014, the 1st defendant filed a preliminary objection upon the following grounds:
i. The plaintiff/respondent had previously filed a similar suit in respect of the same cause of action as in the suit against the defendant/applicant and five others at the Abuja division of the Federal High Court in suit no. FHC/ABJ/CS/686/2013, International Pageant and Film Limited & Anor vs. Nigerian Copyrights Commission & 5 Ors presided over by Justice Ademola.
ii. Upon applications filed the defendants (including the applicant therein) challenging the competency of action on the ground inter alia that it did not disclose any reasonable cause of action against the defendant. This Honourable Court on 26th day of February, 2013 per Hon. Justice AFA Ademola struck out the respondent’s suit.
iii. Aggrieved by the Courts decision the respondents filed a notice of appeal on 11th March, 2013 against the decision of the Honourable Court in suit no. FHC/ABJ/CS/686/2013 International pageants and Film Ltd & One Or vs. Nigerian Copyrights Commission and 5 Ors, the Notice of Appeal is still pending before this Honourable Court. The said Notice of Appeal is attached to the affidavit in support of this application and marked Exhibit M03.
iv. The subject matter of and relief sought in suit no. FHC/ABJ/CS/686/2013 International pageants and Film Ltd & one One vs. Nigerian Copyrights Commission and 5 Ors is the same as subject matter and reliefs sought in the instant suit.
v. The plaintiff/respondent have now brought the instant suit to re-litigate the same cause of action which had been determined by this Court in suit no. FHC/ABJ/CS/686/2013 International pageants and Film Ltd & One Or vs. Nigerian Copyrights Commission and 5 Ors.
vi. In the light of the pending appeal in the instant action against the defendant who were parties to the other suit in respect of the same cause of action amounts to an abuse of Court process.
vii. The respondent’s statement of claim (in the same way) as suit no. FHC/ABJ/CS/686/2013 International pageants and Film Ltd & One Other vs. Nigerian Copyrights Commission and 5 Ors, in the instant suit does not disclose a cause of action against the applicant.
The records further bear out that arguments were taken before the lower Court, the 3rd respondent having aligned himself to the 1st respondent’s submissions, at the conclusion of which the Court agreed with the 1st and 3rd respondents, dubbed the suit filed as an abuse of Court process, and struck out the suit.
Appellant now complains that the lower Court was in error in holding that appellants suit no. FHC/ABJ/CS/467/2014 constituted an abuse of Court process owing to the pendency of appeal with No. FHC/ABJ/CS/686/2013.
The reasoning of the lower Court on the issue can be seen at pages 1097 – 1098 of the record, where he stated that:
“The Court has perused the processes filed by the parties in this suit and agrees with the submissions of the plaintiffs that the 1st defendants have not filed verifiable evidence to prove the existence of suit no. FHC/ABJ/CS/686/2013, which is the ruling of this Court at the Court of Appeal.
Before the Court is a notice of withdrawal dated 18th May, 2015 marked Exhibit A, attached to the plaintiff’s further affidavit in support of motion on notice dated 20/06/2015.
However, the Court shall note that suit no. FHC/ABJ/CS/848/2011, which was a ground for striking out suit No. FHC/ABJ/CS/646/2014 in the ruling marked MO@ attached to the 1st defendant/applicants affidavit in support to his preliminary objection of 23rd September, 2015 is still pending. Before the Court is a CTC (Certified True Copy) of the Court of appeal judgment in appeal no. CA/A/284/M/2012 dated 20/05/2015 where the Court of appeal dismissed the appeal affirming the decision of the lower Court. Exhibit C of the affidavit in support of the plaintiffs motion on notice dated 20/6/2012.
The Court holds the submissions of the 3rd defendants’ counsel as there is a common subject matter in the three matters i.e. this suit as presently constituted, suit with No’s FHC/ABJ/CS/848/2011 and suit no. FHC/ABJ/CS/686/2013 which is the alleged copyright infringement of the Lagos Fashion Week by the plaintiff and ownership of the Lagos fashion week. This can be seen in the ruling of my learned brother Justice Okorowo in suit No. FHC/ABJ/CS/848/2011 dated 28/10/2012. (Exhibited by the plaintiff in their amended writ of summons), dated the 23/10/2014 where the reliefs are reproduced and the 3rd defendants Exhibit 1.
It is also evident from page 7 of Exhibit M02 which is a ruling of this Court dated 26/04/2014. The same reliefs are sought at pages 2/3 of the plaintiff’s amended writ of summons dated 24/10/2014.
From the foregoing paragraphs of this ruling, the Court upholds the submissions of 1st and 3rd defendant’s counsels that this suit constitutes an abuse of Court process.”
My Lords, permit me to be guided by the wisdom of my lord Ogunbiyi JSC in Chief Great Ogboru vs. Emmanuel Uduaghan & sons (supra) on what constitutes the concept of abuse of Court process. The erudite jurist did say that:
“The concept of abuse of Court process has been given a precise definition which is to say the process of the Court has not been used bona fide and properly. See CBN vs. Ahmed & Ors (2001) 5SC (pt. ii) 146; Ediorode vs. Ikine (2001) 12 SC (pt. 11) 125. It involves an improper use of judicial process by a party in litigation, see Agwasim vs. Ojichie (2004) 10NWLR (pt. 682) 613 @ 624-625. Furthermore, the concept is also characterized as an action initiated without a just or reasonable cause. It merely takes an undue advantage of the reason that the process is available for indulgence. It is also a situation where the law is wrongly interpreted for the purpose of accommodating actions in bad faith. It impugns the dignity of the Court, further still and in the legal parlance, the phrase abuse of judicial process is generally employed when a party improperly uses to the irritation and annoyance of his opponent the efficient and effective administration of justice. An example is where a multiplicity of actions on the same subject matter are instituted against the same opponents on the same issues. See Okorodudu vs. Okoromadu (1977) 3SC 21, Okafor vs. AG Anambra State (1991) 6NWLR (pt. 200) 659 and ACB vs. Nwaigwe (2011) 7NWLR (pt. 1246) 380. The concept of abuse therefore lies in the multiplicity and the manner employed for the exercise of the right. See Saraki vs. Kotoye (supra).”
See also Society Bic SA vs. Charzin Ind. Ltd (supra),Ogoejeofo vs. Ogoejeofo (supra), Dana Airlines Ltd vs. Bamaiyi & anor (2017) LPELR – 43054 (CA) and Central Bank of Nigeria vs. Saidu H. Ahmed & Ors (2001) FWLR (pt. 56) 670, where the Apex Court did state that:
“I venture to state quite concisely and clearly that an abuse of the process of Court is only possible by improper use of the issue of the judicial process or process already issued to the irritation and annoyance of the opponent. It is the law that multiplicity of actions on the same matter may constitute an abuse of the process of the Court. But it is so only where the action is between the same parties with respect to the same subject matter. The Court has a duty in such situation to interfere to stop an abuse of its process. See Okorodudu vs. Okoromadu (1977) 3SC 21.”
The nagging question which must be determined is whether all or any of the attributes of an abuse of the process of Court had been shown to have been established, warranting the lower Court striking out the suit before it? I am not unaware nor have I lost sight of the fact of the appellant’s reliance on the decision of Society BIC SA vs. Charzin Ind. Ltd (supra) to argue that for a case to qualify as such abuse of process, the parties, subject matter and the issues involved must be the same, all co-existing to qualify the particular suit as an abuse. I do state that, an abuse of the process of Court may not all together and in all cases involve the co-existence of the parties, subject matter and issues. A situation arises where even if the three situations listed above do not co-exist, an abuse of Court process could equally occur. In finding answers to the question posed, therefore, and strictly guided by the decisions above listed, and the further decision of the Apex Court in Saraki vs. Kotoye (1992) 9 NWLR (pt. 156), which I find quite illuminating, having stated therein that:
“This Court dealt extensively with what constitutes abuse of process of Court. In his lead judgment in the case, Karibi – Whyte observed at pages 18 – 189 that “the concept of the abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. It is recognized that the abuse of process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. This will arise in instituting multiplicity of actions on the same subject matter against the same opponent on the same issues…. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right perse.” Interestingly, though the parties in the three actions are not exactly the same, the central theme in all the suits filed touches on the entitlement of the appellants as copyright owners, and whether those rights were infringed upon, and that apart, there is no denying that in all the actions filed, the central figure is the sponsor of the alleged malfeasance.
I have carefully studied the processes filed by the appellant having in mind the submissions of the learned counsel on both sides, more so since it is clear that where the end result of the two cases is the same, the slight difference in the parties is of no importance, and do accept the submission that an abuse of the Court process need not in all cases, relate to the complaint founded on multiplicity of actions between the same parties and on the same issues as not being in all situations correct. In Dana Airlines Ltd vs. Bamaiyi & Anor (2017) LPELR – 43054 (CA), per Abubakar JCA, now a Justice of the Supreme Court, it was held that:
“Now, the term ‘abuse of Court process’ is often seen to be synonymous with multiplicity of suits or of Court Processes, but through that in a way is a correct preposition of the law yet abuse of Court process is much more than mere multiplicity of suits or process is not the only way by which abuse of Court process could be constituted.
… what would constitute or amount to abuse of Court process is very diverse, imprecise and thus subject to infinite or indefinite considerations. In considering whether or not an action constitutes an abuse of Court process, the Court is critically consideration (sic) the peculiar facts and circumstances of each case in which the abuse of Court process is raised to determine whether in the peculiar circumstance of the affected case the act of the party complained of constitute an abuse of Court process includes but is not limited to situations where the same issues and subject matter are re-litigated.”
It is glaring therefore that appellant did file more than one suit in respect of the same subject matter before various Courts seeking the same reliefs, even though at different times and occasions. The finding of the lower Court on there being multiplicity of suits which constituted an abuse of Court process is well founded, and this Court cannot interfere with it. It is not an excuse for the appellant to have filed multiple suits on the same cause of action, merely because the Court of trial failed and or refused to obey or is in contempt of the orders of this Court that the suit be tried on the merit, thereby instituting a fresh suit before another Court as argued. On the whole, I see no merit in the appeal as it is hereby dismissed by me.
PETER OLABISI IGE, J.C.A.: I had the privilege of reading the leading judgment just delivered by my learned brother, BARKA, JCA.
I agree with the reasoning and conclusion of my learned brother. I adopt same as mine. I too agree that the Appellant’s appeal lacks merit and it is also dismissed by me.
MUHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment just delivered by my learned brother, HAMMA AKAWU BARKA, JCA.
I equally agree with the reasoning and the conclusion that the appeal lacks merit and it is accordingly dismissed.
Appearances:
…For Appellant(s)
…For Respondent(s)
