JANDUTSE v. IJABAH & ORS (2020)

JANDUTSE v. IJABAH & ORS

(2020)LCN/14580(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Tuesday, September 29, 2020

CA/S/29/2020

RATIO

PLEADINGS: ABUSE OF COURT PROCESS.

Since the decision in SARAKI & ANOR V. KOTOYE (1992) LPELR – 3016 (SC) the Supreme Court, while relying on its earlier decisions inOKORODUDU V. OKOROMADU (1977) 3 SC 21, HARRIMAN V. HARRIMAN (1989) 5 NWLR (PT. 119) 6 and OYEGBOLA V. ESSO WEST AFRICA INC. (1966) 1 ALL NLR 170, had continued to hold that the concept of abuse of judicial or Court process is imprecise. According to Karibi Whyte, JSC:-
“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 recognised that the abuse of the process may lie in both a proper or improper use of the judicial process in litigation.”
Against this scope of its definition and application, His Lordship went on to add:-
“…the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues.”
Then as a matter of judicial principle, policy and philosophy the apex Court went on to maintain that:-
“…multiplicity of actions on the same matter between the same parties even where there exist a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right per se. The abuse consists in the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice; such as instituting different actions between the same parties simultaneously in different Courts, even though on different grounds.”
This decision and its policy thrust has been consistently followed in a number of landmark decisions of the Supreme Court and this Court. See for example OGBORU & ANOR V. UDUAGHAN (2013) 5 – 6 SC (PT. 11) 145, DINGYADI & ANOR V. INEC & ORS (2010) 7 – 12 SC 105, ALLANAH & ORS V. KPOLOKWU & ORS. (2016) 6 NWLR (PT. 1507) 1, NABORE PROPS. LTD V. PEACE – COVER NIG. LTD & ORS (2014) LPELR – 22585 (CA) and ADVANCED COATING TECHNOLOGY NIG. LTD & ORS V. FIRST BANK NIG. PLC. (2008) LPELR – 3629 (CA).

In the circumstances of the instant appeal, the lower Court did not loose sight of the above hallowed principles when it reiterated and highlighted them at pages 16 – 17 of its judgment, now contained at pages 164 – 165 of the record of appeal. With this at the back of its mind the lower Court went on to observe that:-
“…the parties in motion No. KB/HC/M.295/2019 and those in KB/HC/M.223/2014, KB/HC/JG/10/2015 (and) KB/HC/JG/5M/2016 are not the same there is no abuse…“
(See lines 23 – 24 and 1 – 2 at pages 165 and 1666 of the record of appeal.).

The above observation, remark and finding of the lower Court is a total misdirection and manifestly factually wrong and was capable of occasioning a miscarriage of justice.

On Suit No. KB/HC/M.223/2014, the lower Court also observed at page 164 lines 3 – 8 that
“…in motion No. KB/HC/M.223/2014 (1st Applicant herein) filed on (sic) application before the Court to set aside the illegal execution of judgment against his immoveable property but such application was never heard or determined by any Court till date… and there is no any Court that has ever made any pronouncement on that application…“

If it is correct that this motion was not abandoned then it must be pending and a decision on it was still being awaited. To the extent that it was pending before a competent Court of co- ordinate jurisdiction and also to the extent that it involved the same subject matter between the same parties, the lower Court should have been more circumspect and less enthusiastic to take steps to overreach, prejudice and undermine the lawful business of a Court of co-ordinate competent jurisdiction. It smacks of perfunctoriness and off- handedness for the lower Court to gloss over and overlook some key, relevant and fundamental facts in the determination of the preliminary objection to the competence of Suit No KB/HC/M.295/2019. The lower Court should have seen through the shenanigans of counsel to take the Courts on a roller coaster ride and to pull a wool over their eyes. There was a very clear and manifest forum shopping.

Upon a proper consideration of the processes in Suits No KB/HC/JG/10/2015, KB/HC/M.223/2014 and KB/HC/M.295/2019, it is clear that the subject matter is the same, so also the issues and the parties. This amounts to multiplicity of actions on the same subject matter against the same parties to annoy or irritate them. It is vexatious and frivolous, indeed the height frivolity. I have no hesitation to hold that it was mere forum shopping by Mr. Zakariyya, of counsel. It was a clear case of abuse of judicial process. It was improper for counsel and the lower Court to overlook or suppress material and relevant facts in a matter. With respect to issue of Section 2 (a) of the Public Officers Protection Law of Kebbi State, I also agree with the arguments and submissions of learned counsel Mr. Lagalo for the Appellant that 3rd Respondent is a public officer within the contemplation of that law and decided cases in that behalf. The 3rd Respondent is fully entitled to the protection provided under Section 2 (a). The action remained outside the limitation period of 3 months next after the sale by auction of the attached property of the Judgment Creditor/Respondent. The attempt by learned counsel to distinguish what he termed judicial and administrative acts of the 3rd Respondent is baseless and totally lacking in substance.
I wish to also at this stage comment on the submissions of counsel to the Appellant that the 1st and 2nd Respondents’ brief of argument failed to meet the standard and definition of a proper Respondents’ brief of argument. The lone issue for determination in this appeal was argued at pages 14 to 22 of the brief of the 1st and 2nd Respondents. Right from the onset learned counsel showed his wanton obsession with Section 43 of the Sheriff and Civil Process Law of Kebbi State which he quoted in full at page 15, paragraph 1.47 and unnecessarily repeated at page 18. It is a totally misplaced obsession because the Judgment debtor has not shown in any manner whatsoever that he had any moveable property within jurisdiction.
From then on learned counsel without any qualms embarked on a systematic side stepping of the weighty issues of abuse of process, competence and jurisdiction of the lower Court to entertain Suit No. KB/HC/M.295/2019 and whether or not 3rd Respondent, was a public officer and entitled to the protection afforded his office under Section 2 (a) of the Kebbi State Public Officers’ Protection Law. Even by the most elastic stretching of judicial wisdom Section 43 (supra) cannot be said to be mandatory or that it must take effect willy – nilly. Added to that in the absence of any clear or manifest illegality, the acts of the 3rd Respondent is fully covered by the presumption of regularity of official acts. I therefore agree that the brief of argument of the 1st and 2nd Respondents totally failed to satisfy the essential requirements and features of a proper Respondents’ brief as required by Order 19 Rule 4 (2) of the Court of Appeal Rules, 2016 to the extent that it may be deemed to have fully conceded the weighty issues argued on behalf of the Appellant against the judgment of the lower Court in the instant appeal. This is in addition to what I have decided on the merits hereinabove.

I wish to agree with all the arguments and submissions of learned counsel to the Appellant on the effect of abuse of Court process on the competence of the action in which it arose and the jurisdiction of the Court in which the action constituting it was filed. Upon the decision of the Supreme Court inDINGYADI & ANOR V. INEC & ORS (2011) LPELR – 950 (SC) a Court was held to lack jurisdiction to entertain such an incompetent matter. Upon all the facts and the entire circumstances of this matter, the lower Court ought to have upheld the preliminary objection against Suit No KB/HC/M.295/2019. The decision to dismiss it was rendered without jurisdiction.
After considering all the arguments of respective learned counsel. I am of the view that the lower Court acted unjudicially by sitting on appeal over the earlier decision in Suit No. KB/HC/JG/10/2015 delivered on 16/5/2017. The originating motion in Suit No KB/HC/M.295/2019 was filed in gross and violent abuse of the process of the Court and the lower Court totally lacked jurisdiction to entertain it as constituted. The lone issue for determination is resolved in favour of the Appellant and this appeal is allowed and the judgment of the lower Court delivered on 9th December, 2019 in Suit No KB/HC/M.295/2019 is set aside. Suit No KB/HC/M.295/2019 is struck out. N100,000 costs against the 1st and 2nd in favour of the Appellant. Per ALI ABUBAKAR BABANDI GUMEL, J.C.A.

Before Our Lordships:

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

ALHAJI SAMAILA UBALE JANDUTSE APPELANT(S)

And

HASSAN YUSUF IJABAH 2. HUSSAINI YUSUF IJABAH 3. CHIEF SHERIFF OF KEBBI STATE 4. ATTORNEY GENERAL, KEBBI STATE RESPONDENT(S)

ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kebbi State delivered on 9th December, 2019 in Suit No. KB/HC/M.295/2019.
In an originating motion dated and filed before the Kebbi State High Court (lower Court), brought pursuant to Order 39 Rules 1 and 2 of the Kebbi State High Court Civil Procedure Rules 2017, Section 43 of the Sheriff and Civil Process Law of Kebbi State and under the inherent powers and jurisdiction of the lower Court, the Applicants (1st and 2nd Respondents herein) sought for the following 2 main reliefs against the 3rd and 4th Respondents herein on the one hand and the Appellant herein as the 3rd Respondent on that application, namely:
“1. An order of this Honourable Court setting aside the attachment of the immovable property of the judgment debtor/applicant in suit No. KB/HC/ M.75/2014 having not been done in accordance with the provisions of Section 43 of the Sheriff and Civil Process Laws of Kebbi State Cap 134 1996.
2. An order of this Honourable Court setting aside the attachment of the immovable property of the 2nd Applicant who

is not a party in suit No. KB/HC/M.75/2014 and having not been done in accordance with the provisions of Section 43 of the Sheriffs and civil process laws of Kebbi State Cap 134 1996.”

The application was supported by an 8 paragraph affidavit with so many copious annexures. Issues were duly joined on the application when the two sets of Respondents filed their respective counter affidavits. The application was argued via filed and exchanged written addresses.

In its judgment, the lower Court found in favour of the Applicants and proceeded to set aside the execution on their immovable property. As part of the judgment, the lower Court reasoned thus:-
“The law relating to the execution of judgment of immovable property is as provided in Section 43 of the Sheriff and civil process laws of Kebbi State Cap 134 of 1996 as interpreted in the decided case of ASRACO (NIG) LTD VS. TRADE BANK PLC (2003) 6 NWLR (PT. 815) 22. Based on the authority of AKINYEMI VS. SOYANWO (2006) 13 NWLR (PT. 998) 496 and the admission of the 1st and 2nd Respondent that the judgment creditor/the 3rd Respondent in Exhibit ‘A’ listed the 1st Applicant

properties for attachment with the properties attached, the Court in the exercise of its power sets aside the execution of the judgment in Suit No. KB/HC/M.75/2014 having been done not in accordance with the law.
The execution set aside as prayed by the applicants.”

The 3rd Respondent to that application and the Appellant herein was dissatisfied with the judgment and appealed to this Court in a notice of appeal dated and filed on 9th December, 2019. It contains two grounds of appeal. They are as follows:
“GROUND ONE: ERROR IN LAW
The lower Court erred in law when it assumed jurisdiction on the subject matter and thereby occasioned miscarriage of justice.
PARTICULARS OF ERROR
a. The case of the 1st Respondent before the trial Court is an abuse of Court process.
b. The subject matter was previously decided by a Court of competent jurisdiction, therefore robbed the trial Court with requisite jurisdiction.
c. The case of the 1st Respondent was a statute bar as the issue complaint of was completed in 2017.
GROUND TWO
The decision of the lower Court is against the weight of evidence.”

To argue

the appeal, learned counsel Mr. Lagalo, on behalf of the Appellant filed a brief of argument on 19th March, 2020. In response, on behalf of the 1st and 2nd Respondent, learned counsel filed a brief of argument on 13/05/2020. The Appellant’s reply brief was filed on 8th June, 2020. No briefs were filed on behalf of the 3rd and 4th Respondents.

At the hearing of the appeal, respective learned counsel identified, adopted and relied on their respective filed and exchanged briefs. While learned counsel to the Appellant urged on the Court to allow the appeal and set aside the judgment of the lower Court, learned counsel to the 1st and 2nd Respondents urged that the appeal be dismissed and the judgment of the lower Court be affirmed. Having filed no briefs the 3rd and 4th Respondents had nothing to urge on the Court in line with the rules in adjudication in appellate matters.

From the two grounds of appeal learned counsel to the Appellant formulated and argued the following lone issue for determination. It is:-
“Whether having regards to the facts and circumstances of this appeal on record, the trial Court had jurisdiction to entertain

Motion No. KB/HC/M 295/2019 filed on 21st October, 2019…”

Before proceeding with the determination of the lone issue in this appeal, I wish to recall some of the key underlining facts that gave rise to the whole matter. In a judgment delivered by Mairiga C. J. (as then was) in Suit No. KB/HC/M.75/2014, the learned C. J. remarked, observed and held thus:-
“In view of what the defendant/Respondent is required to do in response to the claims made against him under Order 11 Rules of this Court. I feel compelled to say with due respect to the learned counsel for the Respondent, that the defence as revealed upon the facts available are flimsy, and the counter – affidavit was oblivious in specifically denying the claims and it lacks condescension upon particular.
In conclusion, having regard to the facts of this case and the exhibits attached by the Applicant. I found that the Respondent is indebted to the Applicant to a liquidated sum of N6,900,000 which is the money collected by the Respondent from the Applicant in respect of the land transaction purportedly conducted by the Respondent for the Applicant.”

Suit No.

KB/HC/M.75/2014 was between the Appellant herein, as the Claimant and the 2nd Respondent herein as the Respondent and the judgment of the Learned Chief Judge was delivered on 22nd October, 2014. The 1st Respondent is the twin brother of the 2nd Respondent, the real judgment debtor. This judgment was executed against the immovable property of the judgment debtor by duly made order of attachment and sale. The sale of the attached property of the judgment debtor was made on 11th November, 2015. Earlier on 17th December, 2014, the judgment debtor had filed Motion No. KB/HC/M.223/2014 seeking for an order to set aside the attachment of his immovable property. Nothing was heard about this application as it was said to have been abandoned. Over a year after the abandonment of the motion of 17th December, 2014, (KB/HC/M.223/2014) the judgment debtor along with the 1st Respondent herein, filed Suit No. KB/HC/JG/10/2015 on 2nd December, 2015 seeking for the following reliefs:
“1. A declaration that by the tenor of Section 43 of the 1999 Constitution of the Federal Republic of Nigeria; the Claimant can own property in any part of the Country, including Jega

town of Jega Local Government Council.
2. A declaration that the Claimants right as a bona fide purchaser for value cannot be extinguished without any legal action challenging same.
3. A declaration that the attachment/auction of the Claimants property by the 1st Defendant is illegal, null and void and against the Claimants Constitutional right under Section 43 of the 1999 Constitution of the Federal Republic of Nigeria.
4. An order setting aside all the 1st Defendants acts towards the execution of the judgment in KB/HC/M75/2014 against the Claimants property located at G. R. A. Jega. Kebbi State.
5. An order of perpetual injunction preventing the 1st and 2nd Defendant from ejecting, attaching or interfering with the Claimant property located at G. R. A Jega, Kebbi State.”

In a judgment delivered on 16th May, 2017, the action in Suit No. KB/HC/JG/10/2015 was dismissed. In the course of dismissing the action, the learned judge of the Kebbi State High Court held thus:
“I have carefully gone through the processes before the Court and the Exhibits.
I have also considered the submissions of both counsel in their

respective written addresses. The cause that gave rise to this application is in respect of attachment of the Claimant/interpleader property located at G. R. A. Jega which the 1st Defendant levied execution in satisfying judgment sum in Suit No: KB/HC/M.75/2014. This Suit was instituted as interpleader proceedings.
It is important to state that they are two types of interpleader proceedings, these are stakeholder interpleader and Sheriff’s interpleader.
In the case at hand, the applicable interpleader is Sheriff’s proceedings.
This arises where a Sheriff carries out attachment pursuant to the judgment of a Court and a third party claim ownership or interest in the property.
In the instant case, it is not the claimant but the sheriff that ought to take out any interpleader.
This is usually done by the judgment debtor by applying to the Chief Sheriff or any official of the Court that the property sought to be attached was not his property.
It is important to state that Exhibit B notice of attachment was served on the judgment debtor in November, 2014.
The question is why didn’t the judgment Debtor notify the

Claimant/Interpleader that his property was about to attached.
Worthy to mention is that execution was levied on the property on 10/11/2015, this is almost a year after the judgment debtor was serve with Exhibit B.
Interpleader must be brought before the sale of the attached property.
In this case the interpleader was initiated after the sale of the attached property as the sale ordinarily forecloses any such application and the Sheriff have become functus officio.
It is my view that the Claimant/Inter pleader slept over his right and therefore interpleader proceedings is not available to him at this point in time to claim the property when the Sheriff has already levied execution and one Uzairu Muhammed has taken possession of the property in dispute.
In the final analysis the application is hereby dismissed.”

It was against the backdrop of these facts and circumstances that the 1st and 2nd Respondents herein filed the originating motion No. KB/HC/M.295/2019 of 21st October, 2019, predicated on 3 grounds and 8 paragraph affidavit with very copious documents attached as Exhibits.

Upon being served with the above

originating motion filed on 21st October, 2019, the Appellant herein as the Judgment Creditor/3rd Respondent thereto filed a motion on notice dated 13th November, 2019 seeking for 2 principal reliefs which include an order of the lower Court dismissing motion No. KB/HC/M.295/2019 for being an abuse of process and also for being statute – barred. Etc. This application was predicated on 7 grounds and an affidavit of 16 paragraphs with many Court processes attached as Exhibits.
The grounds are:-
“a. The Judgment Creditor/3rd Respondent herein got a judgment against the judgement Debtor/1st Applicant in Suit No: KB/HC/M.75/2014 sometime about the 22nd of October, 2014
b. The judgment was thereafter executed against the immovable property of the judgment Debtor/1st Applicant and in consequence, the said property was sold to one Uzairu Muhammed on the 11th of November, 2015.
c. The judgment Debtor/1st Applicant had on the 17th of December, 2014 filed an application in Motion No. KB/HC/M.223/2014 before the Kebbi State High Court of Justice seeking to set aside the attachment and sales of his immovable property in compliance and

execution of the judgment of Kebbi State High Court in Suit No. KB/HC/M.75/2014 but abandoned the application.
d. Similarly, the Applicants herein on the 2nd of December, 2015, approached the Kebbi State High Court of Justice via Suit No. KB/HC/JG/10/2015, seeking to nullify or set aside the attachment and sales of the immovable property of the judgment Debtor/1st Applicant in compliance and execution of a judgment of the Kebbi State High Court in Suit No. KB/HC/M.74/2014.
e. Suit No. KB/HC/JG/10/2015 above mentioned seeking to nullify and declare as null and void the attachment and sales of the immovable property of the judgment Debtor/1st Applicant was heard on the merit and dismissed by the Kebbi State High Court of Justice, Jega Judicial Division on the 16th of May, 2017 for lacking a merit.
f. On the 30th of March, 2016, the judgment Debtor/1st Applicant also filed an application before the Kebbi State High Court seeking an Order of Interlocutory Injunction to restrain the Respondents herein particularly the 1st and 2nd Respondents, but later abandoned the application.
g. The attachment and sales of the immovable property of the

judgment Debtor/1st Applicant in compliance and execution of the judgment of Kebbi State High Court of Justice in Suit No. KB/HC/M.75/2014 was carried out on the 11th of November, 2015, over four (4) years before the filing of this action on the 21st of October, 2019 and thus; the present action is statute barred by reason of the operation Section 2 of the Kebbi State Public Officers Protection Act.”

The 1st and 2nd Respondents herein filed an 18 paragraph counter affidavit to challenge the motion. Respective learned counsel to the judgment Creditor/Applicant and the 1st and 2nd Respondents/Judgments Debtors filed and exchanged written addresses. Learned counsel to the 3rd and 4th Respondents did not file any counter affidavit or written address. At the hearing of motion No. KB/HC/M.295/2019 and the preliminary objection to it on 14th November, 2019, respective counsel adopted and relied on their filed and exchanged written addresses. Though, learned counsel to the 3rd and 4th Respondents did not file any counter affidavit or written address, according to him due to time constraint, he sought to rely on the counter affidavit of the judgment

Creditor/3rd Respondent/Appellant as well the written address filed in that behalf.

Added to that, respective learned counsel took turns to highlight the key points in their respective written addresses. As pointed out above the lower Court dismissed the preliminary objection of the Judgment Creditor/Applicant and proceeded to decide the motion in Suit No. KB/HC/M.295/2019 and found in favour of the Judgment Debtors/Applicants. This appeal is against those findings and decisions of the lower Court.

At pages 2 to 14 of the brief of the 1st and 2nd Respondents, learned counsel raised and argued a preliminary objection to challenge the competence of this appeal and the jurisdiction of the Court to entertain it. It was predicated on the following ten grounds. They are:
“1. The Appellant’s appeal is against the dismissal of his preliminary objection filed by way of a motion.
2. The ruling on the Appellant’s preliminary objection was an interlocutory application in Suit No. KB/HC/M295/2019.
3. The Appellant did not seek the leave of Court to appeal against the interlocutory dismissal of his application.
4. Record of

appeal was transmitted out of time.
5. The Appellant did not also filed any counter affidavit to motion No. KB/HC/M295/2019.
6. The Appellant’s consented (agreed) to the ruling of the trial Court by not filing a counter affidavit to motion No. KB/HC/M295/2019.
7. Leave of Court is required to appeal a consent judgment.
8. Appellant did not seek the leave required.
9. The 3rd Respondent whose act was set aside has gone back to the status quo and has corrected and completed the act.
10. Appellants appeal is an academic exercise.”

Against the above grounds, learned counsel formulated 3 issues for determination in the preliminary objection. They are:-
“1. Whether Appeal No. CA/S/29/2020 against the interlocutory Ruling in a final judgment in KB/HC/M295/2019 can be filed without seeking the leave of Court.
2. Whether the Appellant who consented to Suit No. KB/HC/M295/2019 by not filing a counter affidavit; can file an appeal against the final judgment in KB/HC/M295/2019 without seeking the leave of Court.
3. Whether the 3rd Respondent act of execution of the judgment in KB/HC/M75/2014 which has

already been done rightly in compliance with the Order in KB/HC/M295/2019 will not make this appeal an academic.”

On behalf of the Appellant learned counsel responded at pages 1 to 9 of the Appellant’s reply brief.

In his opening arguments on the 1st issue for determination, learned counsel to the 1st and 2nd Respondents’, referred to and quoted the full text of Section 24 (3) of the Court of Appeal Act 2004 and explained that this is an interlocutory appeal from the decision of the lower Court on the motion in Suit No. KB/HC/M.295/2019. Sequel to this, learned Counsel pointed out that the notice of appeal giving rise to this appeal is incompetent to the extent that it was filed without the leave of the lower Court or this Court. He submitted that this appeal must to that extent remain incompetent. He cited and relied on the decision AJAYI V. OJOMO (2000) 14 NWLR (PT. 688) 447 and urged on the Court to so hold. While also relying and quoting very extensively from the decision in GBADAMOSI V. KABO TRAVELS LTD (2000) 8 NWLR (PT. 688) 243, learned Counsel maintained that the incompetence of the notice of appeal of the Appellant is such

a grave sin that this Court cannot overlook. He also relied on TIJANI V. AKINWUNMI (1990) 1 NWLR (PT. 125) 237 in urging the Court to strike out the notice of appeal.

With respect to issue two for determination learned Counsel referred to the provisions of Section 241 (2) (C) of the 1999 Constitution, as amended. The fulcrum on this issue is principally predicated on the explanation and observation of learned counsel that because the Appellant herein as the Respondent/Applicant at the Court below failed to file a counter affidavit to the action in Suit No. KB/HC/M.295/2019, he is deemed to have admitted the facts contained in the supporting affidavit thereto and thereby yielding to judgment to the Applicants by consent. He relied on the case of MODIBBO V. USMAN (2020) 3 NWLR (PT. 1712) 484 and urged on the Court to so hold. While also emphasising that facts not disputed are taken as admitted and therefore established, learned counsel referred to the case of FESTUS V. A. A. C (2020) 4 NWLR (PT. 1714) 276 at 279 and Section 241 (2) (c) on the meaning, effect and consequence of a consent judgment.

Learned counsel added that a consent judgment is a final

decision since it finally determines the issues in dispute between the parties. According to learned counsel, whichever it is, an interlocutory appeal or a consent judgement, the Appellant can only bring this appeal with leave and not as of right like he purported to have done. He relied and quoted extensively from the judgment in UMAH V. APC (2019) 5 NWLR (PT. 1666) 430 and urged on the Court to so hold.

On the 3rd issue for determination, learned counsel in paragraph 1.42 at page 13 of the brief of the 1st and 2nd Respondents explained that the 3rd Respondent herein reviewed his earlier execution of the judgment in Suit No. KB/HC/M.75/2014 by carrying out another execution in satisfaction of the judgment debt and the parties herein. It also came from the mouth of learned counsel that the Appellant has enjoyed the fruit of his judgment in KB/HC/M.75/2014 as executed by the 3rd Respondent after the order KB/HC/M.295/2019. Against the backdrop of this learned counsel cited the case of OKULATE V. AWOSANYA (2000) 2 NWLR (PT. 646) where it was held that a Court should not indulge in an academic exercise by considering an issue which is no longer necessary for

the proper determination of a case. He urged on the Court to so hold with respect to the facts and circumstances in the instant appeal.

In his response on behalf of the Appellant, learned counsel chose to argue issues one and two together. He set the ball rolling by defining what an interlocutory appeal or application is. He relied on Black’s Law Dictionary 9th Edition at page 115 where it was stated thus:-
“…a motion for equitable or legal relief sought before a final decision.”

With this definition at the back of his mind, learned counsel argued that the 1st and 2nd Respondents in this appeal cannot by any stretch of factual or legal imagination reduce an application which challenged an originating motion on the grounds that it did not only constitute an abuse of Court process but also statute barred, to be interlocutory application.

While referring to the decisions of this Court inKASHAMU V. ATT. GEN. FED. REP. OF NIG. (2013) LPELR 22357 (CA) and MOHAMMAD V. DANTATA & ORS (2014) LPELR 23465 (CA), learned counsel pointed out and explained that the issue of abuse of Court process is a complete defence that can

be raised by a party to challenge the competence of an applicant’s action or the jurisdiction of the Court to entertain same. Learned counsel also referred to the decision in HASSAN V. ALIYU & ORS (2010) LPELR – 1357 (SC) 82 amongst other decisions where it was emphatically held that a defence founded on a statute of limitation like the Public Officers Protection Act is a defence that a Claimant has no right of action and it is a defence which can be raised in limine without any evidence in support. Against the foregoing learned counsel maintained that the Appellant’s motion in the circumstances of the instant appeal was clearly a defence to the originating motion and not interlocutory application as misconceived by learned Counsel to the 1st and 2nd Respondents.

While being adventurous, learned Counsel argued that even if this appeal is against an interlocutory ruling of the lower Court on the Appellant’s motion, there would still be no need for any leave of this Court or the lower Court to be sought and obtained because Section 241 (1) (b) of the 1999 Constitution, as amended provides for appeals to lie as of right where the

ground of appeal involves questions of law alone. He further relied on the decision of this Court in IBRAHIM V. YAHAYA (2016) LPELR – 41810 (CA) per Oho, JCA at pages 18 – 19 C – B amongst other decisions of this Court and the Supreme Court. While turning to the instant matter, learned counsel maintained that the lone ground of appeal, without any doubt or speculation challenges the jurisdiction of the lower Court to entertain the motion of the 1st and 2nd Respondents. He referred to the case of G. E. C. V. AKANDE & ORS (2010) LPELR 9356 (SC) 17 at C – D where the Court held that challenging the jurisdiction of a Court is a ground of law. In his concluding arguments on these two issues learned counsel explained that whereas Section 24 (3) of the Court of Appeal Act, 2004 merely prescribes the procedures for seeking leave, it does not confer a right of appeal and therefore the cases of AJAYI V. OJOMO (supra) and GBADAMOSI V. KABO TRAVELS LTD (supra) are totally inapplicable to the facts in the instant appeal. He urged on the Court to so hold and resolve issues 1 and 2 against the preliminary objection.

In an effort to set the

record straight before going into the crux of his submissions and arguments on the 3rd issue for determination, learned counsel explained that an appeal is contested on the basis of the compiled and transmitted record of appeal and not on the weird imagination of parties or their counsel. Learned counsel went on to expatiate on the sanctity and bindingness of the record of appeal and pointed out that there is nowhere in the record of appeal to show that the judgment of the lower Court has been executed by the 3rd Respondent. He added that learned counsel to the 1st and 2nd Respondents cannot suddenly import or introduce extraneous matters that are not only incorrect but cannot be substantiated or vindicated by the record of appeal. He urged on the Court to resolve this issue against the preliminary objection and to proceed to dismiss it without much ado.

For the purpose of determining this preliminary objection it is important to understand and determine the processes leading to the decision rendered thereby. Also, in determining whether the decision of a Court is final or interlocutory it is important to determine either the nature of the proceedings

leading to that decision or whether the decision had determined the right of the parties with finality. In the circumstances of the instant matter there is no doubt that the application in Suit No. KB/HC/M.295/2019 was an originating motion. It was a substantive action. It was not proceeded by a Writ of summons or originating summons, etc. Also, the nature of the order made by the lower Court on the motion showed beyond any doubt that it had disposed of the matter completely and there was nothing again pending before it for any further decision. See AKINSANYA V. UBA LTD (1986) 4 NWLR (PT. 35) 273, ODUTOLA V. ODERINDE (2004) LPELR – 2258 (SC) and OGOLO V. OGOLO (2006) 5 NWLR (PT. 972) SC 163 at 186. Sequel to these decisions of the Supreme Court against the facts and circumstances in this appeal, there does not appear to be any merit in the argument that this appeal is against an interlocutory decision of the lower Court for which the Appellant needed leave of the lower Court or this Court to validate and render competent.

The mere fact of not filing a counter affidavit by the 3rd Respondent in Suit No. KB/HC/M295/2019 does not per se mean that the

decision thereby rendered in the action was a consent judgment in the context of so many decisions of this Court and the Supreme Court. InAFOLABI & ORS V. ADE KUNLE & ORS (1983) 8 SC 99 the Supreme Court re- emphasised and relied on its earlier decision in WOLUCHEM V. WOKOMA (1974) 3SC 153 to hold that a consent judgment arises when either party is willing to consent to or order against himself or if both parties agreed as to what judgment or orders to be. SeeAFEGBAI V. ATT. GEN. OF EDO STATE (2001) LPELR – 193 (SC), CHINEDU UDEGBUNA V. OKWONKWO & ANOR (2016) LPELR – 41013 (CA) and FALAKI & ORS V. FAGBUYIRO & ORS (2015) LPELR – 25848 (CA). It would therefore amount to taking the law and logic beyond any imagination or elasticity to find that there was any consent orders or judgment in the entire circumstances of this matter. I therefore hold and find that there was no consent judgment against which the appellant required leave of the lower Court or this Court to appeal against.

On whether this appeal has become academic, I fully agree with the arguments, submissions and explanations of learned counsel to the

Appellant on the important position of a record of appeal in the appellate adjudicatory process and its binding effect on the parties to an appeal. In that regard, there is nothing in the record of appeal before this Court that is supportive of the fact that the judgment of the lower Court had already been fully executed and anything emphasising that position is baseless and significantly misleading. Against all the foregoing, I am of the view that the preliminary objection of the 1st and 2nd Respondents is totally devoid of any merit and it is accordingly dismissed.

In arguing the lone issue for determination in this appeal, learned counsel to the Appellant began by strongly asserting that the lower Court in the instant matter clearly misapplied the law to the facts and wrongly assumed jurisdiction when it totally lacked the vires to do so because the action constituted an abuse of Court process and was generally res judicata and statute barred. While conceding that the lower Court correctly set out the key elements of what amounts to an abuse of process, but learned counsel was quick to point out that the lower Court failed to apply those well known and

accepted principles correctly to the facts and circumstances of the instant action. While relying on the decision of the Supreme Court in OJO & ORS V. OLAWORE & ORS (2008) LPELR – 2379 (SC), learned counsel added that the question as to what amounts to abuse of Court process was determined as the use of the judicial process to harass, irritate and annoy an adverse party in litigation. He then quoted very extensively from the leading judgment of Mohammed, JSC who referred to so many previous decisions of the apex Court to illustrate some of the steps that could be taken to amount to abuse of Court process. Learned counsel further relied on the decision of the Supreme Court in ATT. GEN. LAGOS STATE V. ATT. GEN. FEDERATION & ORS (2014) LPELR – 22701 (SC) 89 A – E for the same effect.

Arising from the foregoing established statements of the law, learned counsel opined that there is no gain saying that abuse of Court process connotes the filing of multiple Court process involving the same parties issues and subject matter in Court to the vexation of the adversary. He went on to focus on the details and facts in this appeal to

illustrate the ubiquitous presence of all the key factors in the definition of what amounts to abuse of process.

While more specifically referring and relying on Exhibits 3, 4, 5 and 6 attached to the affidavit in support of the motion of the Appellant, now contained at pages 52 to 101 of the record of appeal, learned counsel strongly maintained that there is no iota of doubt that the parties, issues and subject matter of the motion in Suit No. KB/HC/M.295/2019 and Exhibits 3 to 6 are the same. Learned Counsel added that this much was conceded by the 1st and 2nd Respondents in paragraphs 8, 9, 10, 11, 12 and 13 of their counter affidavit now contained at pages 128 – 131 of the record of appeal to the effect and proof of the fact that Exhibits 3 to 6 were actually filed by the 1st and 2nd Respondents. Against the backdrop of this, learned counsel on behalf of the Appellant resorted to and emphasised the principle that facts admitted needed no further proof that there was an abuse of Court process in the circumstance of this matter. For the full meaning and effect of the latter principle of the law of

evidence, learned counsel cited the case of AISHA & ANOR V. ISHAKU & ORS (2016) LPELR – 40083 (SC) 73 B – C to insist that any explanations by the 1st and 2nd Respondents that the parties, issues and subject matter of the motion now on appeal and the processes in Exhibits 3 to 6 are not the same is definitely of no moment and ought to be disregarded.

After an explanation of the significant position of the record of appeal in the appellate process, learned counsel commended pages 1 to 107 and 128 to 138 of the record to underscore, support and reinforce his views, arguments and submissions in the context of a number of decided cases that the parties, issues are subject matter in Exhibits 3, 4, 5 and 6 and motion in this appeal are similar in all material respects. He urged on this Court to so find.

Having laid this foundation, learned counsel took the liberty of the decision of Supreme Court in DINGYADI & ANOR V. INEC & ORS. (2011) LPELR – 950 (SC) and this Court in RASAKI L. OJUKERE VS. J. O. OYEBANJI (2017) LPELR – 42718 (CA) to suggest that where a Court finds that its process has been abused, such abuse goes to its jurisdiction and competence to proceed

with the matter as constituted. He added that no matter how meritorious the case of a party may be, once it is found to be an abuse of Court process; that is the end of the road for it. It cannot proceed any further thereby ousting the jurisdiction of the Court to hear and determine the matter as constituted.

Also, according to learned counsel, the issues surrounding the attachment and auction of the properties of the 1st and 2nd Respondents in satisfaction of the judgment sum in favour of the Appellant is res judicata by reason of Suit No. KB/HC/JG/10/2015, sequel to the judgment in exhibits 4 and 5 contained at pages 63 – 93 of the record of appeal.

Against the backdrop of this, learned counsel pointed out that the finding of the lower Court that the issue of res judicata was not established was erroneous in view of the action the 1st Respondent commenced against the Appellant and the 2nd, 3rd and 4th Respondents on 2nd December, 2015 seeking for about 7 declaratory and injunctive reliefs. Learned counsel set out these 7 reliefs in full and pointed out that they are substantially the same with those sought in the action leading to this

appeal. Learned counsel made reference to Suit No. KB/HC/JG/10/2015 and the action constituted in it and all the main and collateral circumstances up to its dismissal. He then cited the case of NIGERIA AIRWAYS LTD V. LAPITE (1990) LPELR – 1998 (SC) at 29 B – C on the meaning and effect of the dismissal of an action. Learned counsel added that to the extent that there was no appeal against that order of dismissal, every issue submitted for adjudication in that matter had been lost and had become res judicata between the parties. According to the learned counsel the issue of estoppel per rem judicata is an issue of jurisdiction and it constitutes an abuse of the process of the Court where a party seeks to re – litigate an issue that was previously decided by a Court of competent jurisdiction. He relied on the decision of this Court in KWAGE & ORS V. UPPER SHARIA COURT, GWANDU & ORS (2017 LPELR – 42508 (C) per Oho, JCA, OGBODU & ORS V. NDIRIBE & ORS (1992) LPELR – 2283 (SC) ad UGO V. UGO (2017) 18 NWLR (PT. 1597) 218 per Eko, JSC at 237 F – H amongst others.

In his further effort to illustrate circumstances

tending to show real intent and concrete abuse of process, learned counsel explained that the motion in Suit No. KB/HC/M.295/2019 and its supporting processes as set out at pages 1 – 41 of the record of appeal seeking to re – litigate the issues pertaining to the attachment and auction of the properties in dispute was incompetent for being res judicata and the lower Court lacking jurisdiction to entertain it because by Virtue of Exhibits 1 and 2 at pages 51 and 52 of the record of appeal, the attachment and auction now sought to be set aside were made and took place on 11th November, 2015, while Suit No. KB/HC/M.295/2019 was commenced on 21st October, 2019. Also, according to this period of time rendered the action in the motion to be statute-barred and incompetent and the lower Court bereft of jurisdiction to entertain same by Virtue of Section 2 (a) of the Public Officers, Protection Law of Kebbi State because, without any doubt, the 3rd and 4th Respondents are public officers within the meaning of the law. He relied on the case of IBRAHIM V. JSC (1998) 14 NLWR (PT. 584) and INEC V. OGBADIBO LOCAL GOVT. & ORS (2015) LPELR – 24839 (SC).

He then referred to other decisions on the meaning and effect of a limitation of time stipulation on the claim of a party. The implication of an action being statute – barred, according to one of the decisions cited by counsel is that a Claimant who ordinarily would have had a cause of action by judicial process but, because the period of time laid down by the Limitation Law for commencing such an action had elapsed, automatically looses that right to approach the Court to ventilate his grievance.

Before concluding his arguments, learned counsel submitted that the lower Court erroneously dismissed the objection of the Appellant and assumed jurisdiction to entertain the motion in Suit No. KB/HC/M.295/2019. He urged on this Court to so hold and resolve the lone issue for determination in this appeal in favour of the Appellant. While also relying on the decision of the Supreme Court in ADO IBRAHIM & CO. LTD V. BENDEL CEMENT CO. LTD. (2007) LPELR 188 (SC), learned counsel pointed out that this Court is vested with the necessary vires, jurisdiction and competence to assume the complete jurisdiction of the lower Court to determine the objection of the

Appellant to the motion of the 1st and 2nd Respondents in Suit No. KB/HC/M.295/2019 based on the duly compiled and transmitted record of appeal. He urged on the Court to so hold and assume the jurisdiction of the lower Court on this matter and to proceed to uphold the objection of the Appellant and set aside the judgment of the lower Court as well as to dismiss the motion in Suit No. KB/HC/M.295/2019.

In his response, learned counsel to the 1st and 2nd Respondents began by reproducing the full text of Section 43 of the Sheriff and Civil Process Law, CAP 134, Laws of Kebbi State. Further to that, learned counsel went on to explain that the 3rd Respondent in executing the judgment against the Judgment Debtor/2nd Respondent refused to follow the Provisions of Section 43 (supra), in that he failed to first and foremost attach the movable property of the 2nd Respondent before attaching his immovable property learned counsel added that there is nothing before this Court to show that the 3rd Respondent did what the law required of him. Against this initial explanation, learned counsel suggested that even on that alone the lower Court was right to have set aside

the execution that was not done according to law. In paragraphs 1.49 to 1.58 of the brief of argument of the 1st and 2nd Respondents, learned counsel tried to set out his understanding of the case argued by the Appellant before this Court. He concluded that the Appellant failed to understand the application of the doctrine of abuse of Court process to an administrative act and a judicial act. Whatever that means.

According to learned counsel the issuance of notice of attachment of property was an administrative act solely within the powers of the 3rd Respondent that was challenged by the 1st Respondent in Exhibits 4, 5 and 6 while the selling of the attached property was a judicial act. Learned counsel also complained that the 3rd Respondent wrongly attached the property of the 1st Respondent who was not the judgment debtor, instead of that of the 2nd Respondent who was the real judgment debtor. Also according to learned counsel, the 3rd Respondent sold the attached property without a formal Court order authorising him in that behalf. While further setting out the full text of Section 43 (supra)

and relying on the decision in ASRACO (NIG) LTD V. TRADE BANK PLC. (2003) 6 NWLR (PT. 815) 22 and quoting very extensively therefrom, learned counsel went on to explain that the law remains that an applicant for the execution of judgment must first apply for the attachment of the immovable property of the judgment debtor. He added that because the 3rd Respondent failed to attach any of the immovable property of the 2nd Respondent, he was wrong to have done so and the lower Court was quite right to set it aside. He cited and relied on the Supreme Court decision in AKINYEMI V. SOYANWO (2006) 13 NWLR (PT. 998) 496. He urged on the Court to so hold and resolve the issue for determination in favour of the 1st and 2nd Respondents to dismiss this appeal and affirm the judgment of the lower Court.

In his reply brief, more particularly at pages 9 to 11 thereof (paragraphs 5.1 to 5.3) learned counsel to the Appellant sought to rely on Order 19 Rule 3 (1), (4) (1) and (2) of the Court of Appeal Rules 2016 and the decision of the Supreme Court in the case of OGUNYE & ORS. V. THE STATE (1999) LPELR – 2356 (SC) 13 D – E in both of which the proper place and contents of a Respondents’ brief were

outlined. According to learned counsel in a further effort and while relying on the case ofAJOMALE V. YADUAT & ANOR (1991) LPELR – 306 (SC) 16 C – D it was held that;
“…a good Respondents’ brief has two broad functions. It is refutatory in that it answers the specific points upon which the Appellants’ brief is attacking the judgment appealed from. It is also supportive in that it advances arguments in support of the reasoning in the judgment appealed from…”

According to this decision, it is unsatisfactory for a Respondents’ brief to do one and neglect the other of these two complementary roles. Learned counsel typified and characterised the brief of the 1st and 2nd Respondents herein as unarguably bereft of all the legal characteristics or semblance of a brief of argument, because it remained silent on the weighty issues of jurisdiction and abuse of Court process. He then submitted that this conspicuous silence is an abdication of the duty of a Respondent to an appeal. While relying on the Order 19 Rule 4 of the Court of Appeal Rules 2016 and the case of PDP V. LAWAL (2012) LPELR –

7972, learned counsel submitted that the 1st and 2nd Respondents are deemed to have conceded to the submissions and arguments made on behalf of the Appellant on all the key and material points in the appeal.

In concluding his arguments, learned counsel to the Appellant pointed out that rather than answer or concede to the points of law raised by the Appellant, learned counsel to 1st and 2nd Respondents repeatedly expressed sentiments about the wrongfulness of the attachment and sale by auction of the properties of the 1st and 2nd Respondents by the 3rd Respondent while abandoning the issue of abuse of process, jurisdiction and competence. Learned counsel cited and relied on the decision on SULEMAN & ANOR V. COMMM. OF POLICE, PLATEAU STATE (2008) LPELR – 3126 (SC) where the apex Court deprecated the use of sentiments in litigation and adjudication. He urged on the Court to discountenance what he called the bogus contentions of the 1st and 2nd Respondents and to hold that this appeal is meritorious.

RESOLUTION OF LONE ISSUE FOR DETERMINATION
Before going into the resolution of the issue for determination, I think and believe that it is

important to highlight and focus on some key and material facts that have coalesced and had become, more or less, fully established. From the beginning, as part of the judgment of the lower Court in Suit No. KB/HC/M.75/2014, the judgment Creditor/Respondent was found not to be ordinarily resident within Kebbi State but was more in Abuja with his “business undertaking”. He was also found to have been in the habit of making and uttering fake land documents. Also, from the judgment, he was found to be involved in making false promises and pretences. These are facts not sentiments. His appeal against that judgment in appeal number CA/S/153/2014 was dismissed by this Court on 27th October, 2015. That order of dismissal has remained valid and subsisting as there was no appeal against it. See page 119 of the record of appeal. Related to this fact is the fact that the Judgment Creditor/Respondent has never shown to the lower Court that he had any moveable property within jurisdiction in any of the processes filed on his behalf.

Moving to the next level, learned counsel Mr. Zakariyya, commenced Suit No. KB/HC/JG/10/2015 on or about 2nd December, 2015

as an originating summons pursuant to Order 3 Rules 5 and 6 of the Kebbi State High Court. In its judgment, the lower Court dismissed the action. The reliefs in this action have already been set out in this judgment, so also the reasons advanced by the lower Court in dismissing the action. The judgment has remained valid and subsisting as no appeal whatever was filed against it. Therefore, the finding of the lower Court that Suit No. KB/HC/JG/10/2015 ought to have commenced by way of an interpleader summons, rather than originating summons was quite in order and in line with the extant laws and practice as far as the 1st Respondent claimed to be the rightful owner of attached and sold property and not the 1st Respondent as the judgment creditor. Another motion was filed and abandoned or deemed to have, in the circumstance, to have been abandoned. It is the originating motion in Suit No. KB/HC/M.223/2014.

The subject matter that started all the above events was the attachment and sale of property to satisfy a valid judgment debt. The bottom line in the complaints of the 1st and 2nd Respondents herein is that the lower Court ought to have first and foremost

had recourse to moveable property before any attachment and sale of immoveable property. The parties in Suit No KB/HC/JG/10/2015 as set out at page 63 of the record of appeal are the same as those set out at page 1 a parties in KB/HC/M.295/2019. None of the process filed at pages 1 – 41 in Suit No. KB/HC/M.295/2019 made any reference to Suit No. KB/HC/JG/10/2015. It was not mentioned at all as part of the written address in support of Suit No. KB/HC/M.295/2019, even though, Mr. Zakariyya, of counsel had continued to argue, though without any significant substance, that the property that was attached and sold to satisfy a judgment debt did not belong to the Judgment Debtor/Respondent. So also in his arguments in opposition to the preliminary objection of the Appellant before the lower Court, Mr. Zakariyya, of counsel never mentioned suit No. KB/HC/JG/10/2015. See for example all of his arguments in opposition at pages 144 to 145 of the record of appeal, inspite of the pungent arguments on the said action by Mr. Lagalo, of counsel at page 143. The feeble attempt of Mr. Zakariyya, of counsel to do the needful at page 147 failed to be as purposeful and

professional as it should have been because he still failed to mention anything about the status and effect of Suit No. KB/HC/JG/10/2015 on Suit No. KB/HC/M.295/2019. It is therefore reasonable to, in the circumstance, believe that learned counsel Mr. Zakariyya made a very bold attempts and efforts to derail this matter from its proper course. The attitude of counsel in totality pretending to be oblivious of the earlier actions he filed in Suit No. KB/HC/JG/10/2015 and KB/HC/M.223/2014, is infamous and to say the least misleading and unprofessional.

It is against some of these facts and circumstances that the issue and principle of abuse of Court process and its effect on the jurisdiction of a Court that must be examined, considered and determined in this appeal.

Karibi Whyte, JSC:-
“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 recognised that the abuse of the process may lie in both a proper or improper use of the judicial process in litigation.”
Against this scope of its definition and application, His Lordship went on to add:-
“…the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues.”
Then as a matter of judicial principle, policy and philosophy the apex Court went on to maintain that:-
“…multiplicity of actions on the same matter between the same parties even where there exist a right to bring the action is regarded as an abuse. The abuse lies in the

multiplicity and manner of the exercise of the right per se. The abuse consists in the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice; such as instituting different actions between the same parties simultaneously in different Courts, even though on different grounds.”
This decision and its policy thrust has been consistently followed in a number of landmark decisions of the Supreme Court and this Court. See for example OGBORU & ANOR V. UDUAGHAN (2013) 5 – 6 SC (PT. 11) 145, DINGYADI & ANOR V. INEC & ORS (2010) 7 – 12 SC 105, ALLANAH & ORS V. KPOLOKWU & ORS. (2016) 6 NWLR (PT. 1507) 1, NABORE PROPS. LTD V. PEACE – COVER NIG. LTD & ORS (2014) LPELR – 22585 (CA) and ADVANCED COATING TECHNOLOGY NIG. LTD & ORS V. FIRST BANK NIG. PLC. (2008) LPELR – 3629 (CA).

In the circumstances of the instant appeal, the lower Court did not loose sight of the above hallowed principles when it reiterated and highlighted them at pages 16 – 17 of its judgment, now contained at pages 164 –

165 of the record of appeal. With this at the back of its mind the lower Court went on to observe that:-
“…the parties in motion No. KB/HC/M.295/2019 and those in KB/HC/M.223/2014, KB/HC/JG/10/2015 (and) KB/HC/JG/5M/2016 are not the same there is no abuse…“
(See lines 23 – 24 and 1 – 2 at pages 165 and 1666 of the record of appeal.).

The above observation, remark and finding of the lower Court is a total misdirection and manifestly factually wrong and was capable of occasioning a miscarriage of justice.

If it is correct that this motion was not abandoned then it must be pending and a decision on it was still being awaited. To the

extent that it was pending before a competent Court of co- ordinate jurisdiction and also to the extent that it involved the same subject matter between the same parties, the lower Court should have been more circumspect and less enthusiastic to take steps to overreach, prejudice and undermine the lawful business of a Court of co-ordinate competent jurisdiction. It smacks of perfunctoriness and off- handedness for the lower Court to gloss over and overlook some key, relevant and fundamental facts in the determination of the preliminary objection to the competence of Suit No KB/HC/M.295/2019. The lower Court should have seen through the shenanigans of counsel to take the Courts on a roller coaster ride and to pull a wool over their eyes. There was a very clear and manifest forum shopping.

Upon a proper consideration of the processes in Suits No KB/HC/JG/10/2015, KB/HC/M.223/2014 and KB/HC/M.295/2019, it is clear that the subject matter is the same, so also the issues and the parties. This amounts to multiplicity of actions on the same subject matter against the same parties to annoy or irritate them. It is vexatious and frivolous, indeed the height

frivolity. I have no hesitation to hold that it was mere forum shopping by Mr. Zakariyya, of counsel. It was a clear case of abuse of judicial process. It was improper for counsel and the lower Court to overlook or suppress material and relevant facts in a matter.

With respect to issue of Section 2 (a) of the Public Officers Protection Law of Kebbi State, I also agree with the arguments and submissions of learned counsel Mr. Lagalo for the Appellant that 3rd Respondent is a public officer within the contemplation of that law and decided cases in that behalf. The 3rd Respondent is fully entitled to the protection provided under Section 2 (a). The action remained outside the limitation period of 3 months next after the sale by auction of the attached property of the Judgment Creditor/Respondent. The attempt by learned counsel to distinguish what he termed judicial and administrative acts of the 3rd Respondent is baseless and totally lacking in substance.

I wish to also at this stage comment on the submissions of counsel to the Appellant that the 1st and 2nd Respondents’ brief of argument failed to meet the standard and definition of a proper

Respondents’ brief of argument. The lone issue for determination in this appeal was argued at pages 14 to 22 of the brief of the 1st and 2nd Respondents. Right from the onset learned counsel showed his wanton obsession with Section 43 of the Sheriff and Civil Process Law of Kebbi State which he quoted in full at page 15, paragraph 1.47 and unnecessarily repeated at page 18. It is a totally misplaced obsession because the Judgment debtor has not shown in any manner whatsoever that he had any moveable property within jurisdiction.

From then on learned counsel without any qualms embarked on a systematic side stepping of the weighty issues of abuse of process, competence and jurisdiction of the lower Court to entertain Suit No. KB/HC/M.295/2019 and whether or not 3rd Respondent, was a public officer and entitled to the protection afforded his office under Section 2 (a) of the Kebbi State Public Officers’ Protection Law. Even by the most elastic stretching of judicial wisdom Section 43 (supra) cannot be said to be mandatory or that it must take effect willy – nilly. Added to that in the absence of any clear or manifest illegality, the acts of

the 3rd Respondent is fully covered by the presumption of regularity of official acts.

I therefore agree that the brief of argument of the 1st and 2nd Respondents totally failed to satisfy the essential requirements and features of a proper Respondents’ brief as required by Order 19 Rule 4 (2) of the Court of Appeal Rules, 2016 to the extent that it may be deemed to have fully conceded the weighty issues argued on behalf of the Appellant against the judgment of the lower Court in the instant appeal. This is in addition to what I have decided on the merits hereinabove.

I wish to agree with all the arguments and submissions of learned counsel to the Appellant on the effect of abuse of Court process on the competence of the action in which it arose and the jurisdiction of the Court in which the action constituting it was filed. Upon the decision of the Supreme Court inDINGYADI & ANOR V. INEC & ORS (2011) LPELR – 950 (SC) a Court was held to lack jurisdiction to entertain such an incompetent matter. Upon all the facts and the entire circumstances of this matter, the lower Court ought to have upheld the preliminary objection against

Suit No KB/HC/M.295/2019. The decision to dismiss it was rendered without jurisdiction.
After considering all the arguments of respective learned counsel. I am of the view that the lower Court acted unjudicially by sitting on appeal over the earlier decision in Suit No. KB/HC/JG/10/2015 delivered on 16/5/2017. The originating motion in Suit No KB/HC/M.295/2019 was filed in gross and violent abuse of the process of the Court and the lower Court totally lacked jurisdiction to entertain it as constituted. The lone issue for determination is resolved in favour of the Appellant and this appeal is allowed and the judgment of the lower Court delivered on 9th December, 2019 in Suit No KB/HC/M.295/2019 is set aside. Suit No KB/HC/M.295/2019 is struck out. N100,000 costs against the 1st and 2nd in favour of the Appellant.

FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment just delivered by my learned Brother, ALI A. B. GUMEL, JCA and I am in agreement with the reasoning and conclusions reached in allowing the Appeal as meritorious. In the instant appeal, upon receiving a copy of the originating motion filed by the 1st and 2nd Respondents pasted

at pages 1-41 of the printed records, filed a motion urging the Court below to have the originating motion dismissed for being an abuse of process, it would be recalled that the 1st and 2nd Respondents had earlier on filed other processes against the Appellant and the 3rd and 4th Respondents; and which the Appellant had to bring to the attention of the Court below by annexing these processes to his motion.

It would also be recalled that the subject matter of the originating motion in Suit No: KB/HC/M.295/2019, which is the subject of this Appeal, in terms of the issues raised therein, are conterminous with earlier processes in Suit Nos: KB/HC/JG/10/2015 and KB/HC/M.233/2014 all dealing with the request to have set aside, the attached and auctioned properties of the 1st and 2nd Respondents by the 3rd and 4th Respondents in satisfaction of a judgment sum in favour of the Appellant. What is even more irksome in the instant case is the fact that the 1st and 2nd Respondents failure to deny the striking similarities in terms of subject matter of these processes at pages 128 – 131 of their Counter Affidavit, paragraphs 8, 9, 10, 11, 12 and 13 of the printed

records of Appeal.

It is instructive to note that upon a calm and close examination of these processes pasted at pages 1-107 and 128 – 138 of the printed record, I am unable to disagree with learned Appellant’s Counsel that the parties, issues and subject matter of KB/HC/JG/10/2015 and KB/HC/M.233/2014 are not the same as those of KB/HC/M.295/2019.

Generally, the term; “abuse of process of Court”, is one that is applied to a proceeding which is wanting in bona-fides and frivolous, vexatious, or oppressive. Abuse of process can also mean abuse of legal procedure or improper use of the legal process. An abuse of process always involves some bias, malice, some deliberateness or misplaced bravado and some desire to misuse or pervert the course of justice. See AFRICAN REINSURANCE CORPORATION vs. JDP CONSTRUCTION NIG. LTD (2003) 13 NWLR (PT. 838) at page 609 at 635 paragraphs F-G; USMAN vs. BABA (2005) 5 NWLR (PT. 917) 113 at 131 paragraphs E-G. Usually, the category of what amounts to an abuse of process is not closed. An abuse can manifest in a variety of ways, one of which is the multiplicity of actions between the same parties on same issues,

seeking the same reliefs. A Court of law will always frown at such multiplicity of actions for the following reasons; a. This may result in the ridicule of the judicial system.

This issue of ridicule may stem from the fact that there may be the possibility of conflicting judgments and orders emanating from the multiple actions.
c. It amounts to a waste of judicial resource.

As a matter of practice the ground of abuse of Court process, has since become an omnibus ground in the real sense of the word, usually invoked by a party to litigation to put an end to a remedy sought by an opponent. What, perhaps, should be said in addition here is that a litigant cannot invoke the ground at will or by the spontaneous exercise of his whims. He cannot even urge the Court to invoke the ground without cause. There must be a clear legal cause, the proof of which lies on the party seeking the invocation of the ground. The party seeking the invocation of the ground must put it beyond doubt on his supporting affidavit and or his exhibits, that the proceedings in question are an abuse.

Where the multiple actions constitute an abuse of process and

the Court is satisfied that the proceeding before it is an abuse of process, it has the power, and indeed the duty to dismiss it. See ARUBO & ORS vs. AIYELERU & ORS (1993) 3 NWLR (PT. 280) 126, 142 A – B, per NNAEMEKA – AGU, JSC. The Court, being the architect of its integrity and dignity, must be ready and willing to protect all of its processes from being abused. The question that therefore begs to be answered here is whether the Appellant has by its supporting affidavit and exhibits at the Court below put it beyond a doubt that the subsequent processes/proceedings filed by the 1st and 2nd Respondents constituted an abuse of process? Here is a situation in which the 1st and 2nd Respondents did not mince words in admitting the similarities at pages 128 – 131 of their Counter Affidavit, paragraphs 8, 9, 10, 11, 12 and 13 of the printed records of Appeal.
In the case of AGWASIM & ANOR vs. OJICHIE & ANOR (2004) 10 NWLR (PT. 882) 613 AT 624, TOBI, JSC had this to say:
“A litigant has no right to pursue pari passu two processes which will have the same effect in two Courts at the same time, with a view of obtaining victory in one of

the processes or in both. …The two processes were in law not available to the appellants simultaneously. Only one was available and the choice of these two was exclusively the appellants… one of the processes is clearly an abuse of the judicial process.”
By the subsequent filing of the said originating motion in Suit No: KB/HC/M.295/2019, by the 1st and 2nd Respondents, which process are on all force with the parties, issues and subject matter of KB/HC/JG/10/2015 and KB/HC/M.233/2014; no doubt a condemnable judicial indiscretion to say the least and which has resulted in the sacrilegium of allowing Court below sit on Appeal over its, this Court cannot but wield the judicial big stick as it is enjoined by law to do. To the end, the decision of the Court below delivered on 9-12-2019 in Suit No: KB/HC/M.295/2019, which is akin to the proverbial fruit of the poisoned tree is hereby set aside. The act of getting a Court sit on Appeal over a previous decision, between the same parties in respect of the same subject matter cannot in anyway be condoned by this Court. I rely on all other consequential orders made in the lead judgment.

ABUBAKAR MAHMUD TALBA, J.C.A.: I read before now the lead judgment just delivered by my learned brother ALI. A.B. GUMEL, JCA. He has dealt exhaustively with all the live issues canvassed in this appeal.

After considering all the arguments of respective learned counsel, my learned brother held the view that the Lower Court acted unjudicially by sitting on appeal over the earlier decision in Suit No.: KB/HC/JG/10/2015, delivered on the 16/5/2017. The Originating Motion in Suit No.: KB/HC/M.295/2019 was filed in gross and violent abuse of the process of the Court and the Lower Court totally lacked jurisdiction to entertain it as constituted. I want to observe that this is a classical case of judicial impertinence and arrogance on the part of the trial judge. It is crystal clear that the learned trial judge fished or hunted for jurisdiction. The learned trial judge abdicated his duty in not considering the processes in Suit No.: KB/HC/JG/10/2015, KB/HC/M.223/2014 and KB/HC/M.295/2019. It was crystal clear that the subject matter is the same, so also the issues and the parties. It was clearly an abuse of judicial process.

I too resolve the lone issue in favour of the

Appellant and I also allow the appeal. I abide by the consequential orders in the lead judgment.

Appearances:

LAGALO D. LAGALO For Appellant(s)

HUSSAINI ZAKARIYYAU for 1st and 2nd Respondents
MR. A. R. AMINU DDCL, KEBBI STATE MINISTRY OF JUSTICE BIRNIN KEBBI for 3rd and 4th Respondents For Respondent(s)

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