IWEANYA & ORS v. IGUEGBE & ORS
(2022)LCN/16944(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Thursday, March 31, 2022
CA/OW/227/2014
Before Our Lordships:
Rita Nosakhare Pemu Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Ibrahim Wakili Jauro Justice of the Court of Appeal
Between
1. REV. LINUS IWEANYA 2. CHARLES ONYEAKA 3. EMEKA 4. UCHECHUKWU OKORIE 5. ONYEWUCHI UKAEGBU 6. OKWUDILI UKAEGBU APPELANT(S)
And
1. HRH EZE BASIL IGUEGBE 2. STANLEY IGUEGBE 3. DARLINGTON IGUEGBE 4. MADUABUCHI IGUEBGE – 1ST SET OF RESPONDENTS 5. MRS. NWANERI (Asst. Chief Registrar High Court Owerri) 6. NWOGU EKE (Asst. Chief Registrar High Court Okigwe) 7. MORGAN ONWUVUARIRI (Chief Bailiff, High Court Okigwe) – 2ND SET OF RESPONDENTS RESPONDENT(S)
RATIO
WHETHER R NOT IT IS AN ABUSE OF COURT PROCESS TO FILE TWO PROCESSES SEEKING THE SAME RELIEFS IN DIFFERENT COURTS
This Court, per Mukhtar, JCA (as he then was) in Olawore v Olanrewaju (1998) 1 NWLR Part 534 Page 436 at 455 Para D-E upheld the decision of the trial Judge in the appeal before them, where he held:
“Thus, I hold that it is an abuse of process in this case for the plaintiffs to file their notice of discontinuance so that they may have their way in the new suit No. HOY/32/85 proposed”
Not only do I hold it to be an abuse to file two processes seeking substantially the same reliefs in different Courts, whether one is discontinued or not, it is also an abuse of the Court’s process to indulge in forum shopping.
This term refers to the reprehensible practice of choosing the most favourable Court or territorial jurisdiction in which a matter or cause may be entertained or adjudicated upon. This practice has been deprecated severally. See Johnson v Eze (2021) 2 NWLR Part 1759 Page 90 at 109 Para G-H per Shuaibu, JCA; Slok Nigeria Ltd v Chief Judge of the Federal High Court (2020) 11 NWLR Part 1735 Page 338 at 376 Para G-H per Ige, JCA; Pali v Abdu (2019) 5 NWLR Part 1665 Page 320 at 336 Para A per Ejembi Eko, JSC.
Rather than have the Court that delivered judgment in the matter and before whom the Motion to set aside the execution was filed, to adjudicate on same, the 1st set of Respondents, hurried to another Court outside that judicial division to file an entire action, only to hurriedly terminate the application before the initial Court seised with the matter. PER ADEFOPE-OKOJIE, J.C.A.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of the High Court of Imo State sitting at Okigwe, delivered by his Lordship Hon. Justice P.C. Ikpeama on the 25th of April 2012 in Suit No: HO/31/2011 dismissing the preliminary objections of the defendants (the Appellants and the 2nd set of Respondents herein). Aggrieved, the Appellants appealed to this Court by a Notice of Appeal filed on 25/11/2013 but amended by leave of the Court on 21/9/2015.
BRIEF STATEMENT OF FACTS:
The Appellants, as Applicants, had instituted Suit No: HOW/120/2011 against the 1st set of Respondents for the enforcement of their Fundamental Rights to Liberty at the High Court of Imo State sitting at Owerri. At the end of the proceedings, Hon. Justice Duruoha Igwe gave judgment in favour of the Appellants on the 14th of June, 2011.
The judgment was executed on the 1st of August 2011. Subsequently, the 1st set of Respondents filed a motion on the 8th of August, 2011 at the High Court of Imo State, Owerri division seeking to set aside the wrongful execution of the judgment. Whilst this motion was still pending, the same set of Respondents instituted a suit in the Court below, in Suit No HO/31/2011, at the Okigwe Judicial Division of the High Court of Imo State, seeking the same reliefs as in their motion filed in HOW/120/2011. Preliminary Objections were filed by both the Counsel to the Appellants and the 2nd set of Respondents contending that the Court lacked jurisdiction to hear the Originating Summons and that the suit was an abuse of Court process.
On the 5th of September 2011, the 1st set of Respondents filed a Notice of Discontinuance of their motion pending before Duruoha Igwe J in HOW/120/2011. The trial judge, Ikpeama J in his ruling on the Preliminary Objections held that the Notice of Discontinuance had cured the abuse and that he had jurisdiction to hear the matter. Dissatisfied with this ruling, the Appellants filed the instant appeal.
ISSUES FOR DETERMINATION
The Appellant’s Brief of Arguments filed on 31/03/2016 was settled by Iwu Nnamdi Edward Esq. wherein the Appellants raised three (3) issues for determination to wit;
a) Whether the learned trial Judge was right when he held that there was no abuse of Court process again after the 1st set of Respondents purported to have filed a Notice of Discontinuance to their motion pending in the High Court at Owerri with similar reliefs as in their Originating Summons before the learned trial Judge long after issues had been joined.
b) Whether the learned trial Judge was right when he held that Order 2 Rule 1 of the Imo State High Court (Civil Procedure) Rules 2008 availed the 1st set of Respondents in bringing their Originating Summons before him seeking to set aside the execution of the judgment of another Court of co-ordinate jurisdiction and whether indeed he possessed the jurisdiction ab initio to hear the matter.
c) Whether the learned trial Judge was right when he failed to strike out completely the 2nd set of Respondents after finding that 1st set of Respondents did not comply with Section 42 (1) (a) and (b) of the Sheriffs and Civil Process Act in bringing the action against them.
The 1st set of Respondents filed their Brief of Arguments on 18/07/2016, settled by R.A. Madu Esq in which the issues formulated by the Appellants were adopted.
The 2nd set of Respondents filed no Brief of Arguments.
The Appellants filed their Reply Brief on 02/05/2017.
I shall adopt the issues formulated by the Appellants, with amendments for succinctness.
The 1st issue for determination, is:
Whether the learned trial Judge was right to hold that there was no abuse of Court process after the 1st set of Respondents filed a Notice of Discontinuance to their motion pending in the High Court at Owerri with similar reliefs as in their Originating Summons before the lower Court, after issues had been joined.
APPELLANTS SUBMISSIONS:
Learned Appellants’ Counsel has submitted that the trial Judge was wrong when he held that there was no more abuse of Court process following the filing of the Notice of Discontinuance by the 1st set of Respondents in HOW/120/2011. This, he submitted, is because by virtue of Order 23 Rule (1) & (2) of the High Court of Imo State (Civil Procedure) Rules, 2008, the discontinuance ought to have come before the filing of the Originating Summons in the case before the lower Court and not after. In consequence, the discontinuance did not cure the abuse, as the damage had already been done, citing the case of Olawore V. Olarewaju (1998)1 NWLR (Part 534) 455 para D–E.
Counsel also submitted that the execution sought to be set aside emanated from the Imo State High Court, Owerri Division, and that it is the High Court that gave the judgment that possesses the jurisdiction to ascertain if the judgment was properly executed or not and not another Court, as it would be challenging the judgment of a brother judge of coordinate jurisdiction in the same state.
1ST SET OF RESPONDENT’S SUBMISSIONS:
Learned Counsel submitted that the material consideration is whether the abuse is still present at the time of the “hearing” of either of the two suits. If one of the suits had been discontinued as at the time of the hearing, then the earlier abuse ceases and the suit subsisting can be competently heard. He cited the case of Yisau v. Wema Bank (2001)11 WRN 93 at 104, Ratio 30 – 35 per Onalaja, JCA.
RESOLUTION
On the 14th day of June, 2011, in the High Court of Imo State, Owerri Judicial Division, the Appellants herein, instituted an action against the 1st of Respondents for the violation of their fundamental human rights. Granting their application, the Court, per Duroha Igwe J, ordered as follows:
1. “The arrest and detention of the applicants since the 10-3-2011, till they were granted bail by the Magistrate by the Respondents and/or their agents on grounds of malice and hatred is unlawful, unconstitutional and constitute a violation of the Applicants rights to liberty is unlawful.
2. Respondents are to tender a written apology to the applicants for violation of their fundamental rights.
3. The sum of N1m being general damages jointly and severally against Respondents for the violation of the applicants’ fundamental rights.
4. Respondents, either by themselves, servants, agents or privies are restrained from further violation of the Applicants’ fundamental rights and further arresting or detaining them over the subject matter of this suit”.
Following the execution of the judgment, the 1st set of Respondents filed a Motion on 8/8/2011 before the said Judge, Duroha Igwe J, seeking the following:
1. An order setting aside the execution of 1/8/2011
2. An order compelling the 7th, 8th and 9th Defendants to return the properties upon which execution was levied
Without the determination of this application, the said Respondents filed an Originating Summons on 12/9/2011, dated 6/9/2011 seeking the following reliefs:
1. A declaration that the execution of judgment levied against the properties of the Claimants by the Defendants on 1/8/2011 is wrongful and improper in law.
2. An order of Court setting aside the said wrongful levying of execution by the Defendants.
3. An order of Court setting aside the said wrongful levying of execution by the Defendants.
4. The sum of Twenty Million Naira (N20m) in damages jointly and severally against the Defendants and in favour of the Claimants.
The lower Court, in its ruling, agreed that the suit before him and the Motion filed before Duroha Igwe J, pending before both Courts and having substantially the same reliefs, constituted an abuse of Court process.
It however held that:
“By discontinuing the matter before the Owerri High Court, the ingredients of vexation, annoyance and irritation caused by the 2nd suit will no longer be present at the hearing and there cannot be any abuse…..I cannot see how this suit will amount to sitting on appeal over the Owerri High Court when there is nothing before that Court now and how the issue of execution of its judgment will amount to sitting on appeal over the Court. The Claimants were within their rights to choose whether to pursue the motion to set execution aside in that Court or to take a separate action like the present one to set aside the execution. In the circumstances, this suit is not an abuse of Court process and the motion to dismiss the suit is hereby dismissed.”
While I agree with the lower Court that where a process has been discontinued before a Court, that party, in appropriate circumstances, can file a similar process before another Court, where however, the discontinuance is speedily done to truncate the objection raised by the opposing party to this abuse, the same cannot be merely waived away as having cured the abuse, I hold. The instant case is thus distinguished from the facts in Yisau v. Wema Bank (2001)11 WRN 93 at 104, Ratio 30-35 per Onalaja, JCA cited by the Counsel to the 1st set of Respondents.
The abuse, I hold, lies in the manipulation of the processes of the Court by the said Respondents, in order to have their way at all costs.
This Court, per Mukhtar, JCA (as he then was) in Olawore v Olanrewaju (1998) 1 NWLR Part 534 Page 436 at 455 Para D-E upheld the decision of the trial Judge in the appeal before them, where he held:
“Thus, I hold that it is an abuse of process in this case for the plaintiffs to file their notice of discontinuance so that they may have their way in the new suit No. HOY/32/85 proposed”
Not only do I hold it to be an abuse to file two processes seeking substantially the same reliefs in different Courts, whether one is discontinued or not, it is also an abuse of the Court’s process to indulge in forum shopping.
This term refers to the reprehensible practice of choosing the most favourable Court or territorial jurisdiction in which a matter or cause may be entertained or adjudicated upon. This practice has been deprecated severally. See Johnson v Eze (2021) 2 NWLR Part 1759 Page 90 at 109 Para G-H per Shuaibu, JCA; Slok Nigeria Ltd v Chief Judge of the Federal High Court (2020) 11 NWLR Part 1735 Page 338 at 376 Para G-H per Ige, JCA; Pali v Abdu (2019) 5 NWLR Part 1665 Page 320 at 336 Para A per Ejembi Eko, JSC.
Rather than have the Court that delivered judgment in the matter and before whom the Motion to set aside the execution was filed, to adjudicate on same, the 1st set of Respondents, hurried to another Court outside that judicial division to file an entire action, only to hurriedly terminate the application before the initial Court seised with the matter.
In addition to this, is the non-compliance by the said Respondents with Section 51 of the High Court Law of Imo State, which provides as follows:
“Subject to the provisions of this or any other enactments and subject to any rules of Court, all Civil and Criminal causes or matters and all proceedings in the High Court and all business arising thereat shall so far as is practicable and convenient be tried, heard and disposed by a single Judge, and all proceedings in an action subsequent to the hearing or trial down to and including the final judgment or order shall so far as is practicable and convenient be taken before the Judge before whom the trial or hearing took place.”
An identical provision is Section 60 of the High Court Law of Lagos State, which came up for interpretation before the Supreme Court in the case of International Bank for West Africa Ltd v Pavex International Co. (Nig) Ltd (2000) 7 NWLR Part 663 Page 105.
The lower Court in that appeal had considered a similar situation as the present, where it was a different Judge from the one that delivered the judgment who entertained the motion challenging the writ of execution issued pursuant to the judgment. Declaring the order made by the subsequent Judge null and void, the Court, per Uwaifo, JCA (as he then was) held that provision to mean that “all proceedings in an action subsequent to the hearing or trial of the action shall be heard by the Judge who determined the action…all business arising thereat in all causes or matters must include the issue of the writ of execution and any application to have it set aside..”
The trial Judge was held to have “no colour of competence and jurisdiction …to have entertained the motion and made any order thereon”
Affirming this decision, the Supreme Court, in the appeal to them, in the lead judgment of Ejiwunmi, JSC at Pages 126-128 Para H-E, interpreted this law thus:
(i) “All causes or matters, be they civil or criminal, shall be tried by a single Judge.
(ii) All proceedings in the High Court and all business arising thereat shall be tried by single Judge.
(iii) All proceedings in an action subsequent to the hearing or trial down to and including the final judgment or order shall be heard by the same judge who heard the case.
The Court thereupon held:
“It is also clear that by S.60 of the Act, the jurisdiction of a High Court as analysed above is predicated in each case, upon whether it is practicable and convenient for a single Judge to hear and determine the matter. Similarly, it can be stated that it is only where it is not practicable and convenient that a civil or criminal cause or matter, proceedings, before and subsequent to final judgment, would such matters not be heard by the same Judge… As I have tried to show above, the fact that Adeniji J. was the Judge who determined the earlier suit between the parties is one thing. In order to meet the proviso of Section 60 (supra) so as to excuse the Judge from being assigned to hear the motions in the instant case, it must be shown that it was not convenient and practicable for the Judge to hear the motions. Upon that understanding of the proviso in Section 60 (supra), it is my respectful view that Balogun Ag. CJ. ought to have shown in the record that he had made the necessary enquiries which led him to conclude that the motions could not be assigned to Adeniji J. as he was unavailable to hear them. It is evident that Balogun Ag. CJ did not advert to Section 60 before he assigned the motions to himself, and therefore failed to make the enquiries which he ought to have made before assigning the motions to himself. The Court below surely cannot be faulted for recognising that Balogun Ag. CJ fell into error when he failed to consider the provisions of Section 60 of the High Court Law of Lagos State before assigning the motions to himself.” Underlining Mine
It is thus clear that the Appellants violated Section 51 of the High Court Law of Imo State in discontinuing the Motion filed before Duruoha-Igwe only to file a process seeking the same relief before another Judge of the same State High Court. The lower Court was similarly in error, I hold, to have assumed jurisdiction in the case without enquiries reflected in the records as to why the trial Judge could not entertain the challenge to the execution carried out. The Originating Summons filed subsequently before the lower Court was thus an abuse of the Court’s process. The 1st issue for determination is accordingly resolved in favour of the Appellants.
Having so resolved, I find it unnecessary to proceed with the other issues formulated. In consequence, this appeal is allowed. The ruling of the lower Court delivered on 25th day of April 2012 in HO/31/2011 by Ikpeama J, is accordingly set aside. The Preliminary Objection filed by the Appellants before the lower Court accordingly succeeds and the Originating Summons filed by the 1st set of Respondents is struck out. The parties are to bear their respective costs.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my brother, OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA.
I agree with his reasoning and conclusions.
I allow the appeal.
I set aside the ruling of the Court below delivered on the 25th day of April, 2012 in Suit No: HO/31/2011. Parties to bear their respective costs.
IBRAHIM WAKILI JAURO, J.C.A.: I read in draft, the judgment just delivered by my learned brother Adefope-Okojie, JCA. I consequently subscribe to the reasoning and conclusions reached by my learned brother and that the appeal is meritorious and is therefore allowed. I abide by the consequential orders made therein.
Appearances:
E.E. Chukwuka For Appellant(s)
…For Respondent(s)