MAGAJI v. IDRIS & ANOR (2022)

MAGAJI v. IDRIS & ANOR

(2022)LCN/17060(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, November 24, 2022

CA/A/223/2019

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

BAWA MAGAJI APPELANT(S)

And

1. YAKUBU IBRAHIM IDRIS 2. AHMADU IKKO RESPONDENT(S)

RATIO

THE POSITION OF LAW ON THE TERM “ABUSE OF COURT PROCESS”

The term abuse of process of a Court is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. Abuse of process can only mean the abuse of legal procedure or the improper use or misuse of the legal process. See AMAEFULE vs. THE STATE (1988) 2 NWLR (PT 75) 156 at 177. The Court under its inherent jurisdiction or power has the duty to ensure that the machinery of justice is duly lubricated and that it is not abused. Abuse of process simply means that the process of Court must be used bona fide and properly and must not be abused: ARUBO vs. AIYELERU (1993) 3 NWLR (PT 280) 126 at 142.
In SARAKI vs. KOTOYE (supra) at 188 Karibi-Whyte, JSC stated:
“The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. It is 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. But the employment of judicial process is only regarded generally 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 a multiplicity of actions on the same subject matter against same opponent on the same issues. See OKORODUDU vs. OKOROMADU (1977) 3 SC 21; OYEGBOLA vs. ESSO WEST AFRICA INC. (1966) 1 ALL NLR 170. Thus, the multiplicity of actions on the same matter between the same parties even where there exists 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, rather than the exercise of the right, per se”.
(Emphasis supplied)
See also the cases of OKAFOR vs. A-G (1991) 6 NWLR (PT 200) 659 at 681; CBN vs. AHMED (2001) 28 WRN 38 at 60-61 and MOGAJI vs. NEPA (2003) 8 WRN 42 at 53.
As stated by Edozie, JSC in AGWASIM vs. OJICHIE (2004) 18 NSCQR (PT 1) 359 at 367:
“It is trite law that the abuse of judicial process is the improper use of the judicial process by a party in litigation. It may occur in various ways, such as instituting a multiplicity of action on the same subject matter against the same opponent on the same issue or a multiplicity of action on the same matter between the same parties. It also occurs by instituting different actions between the same parties simultaneously in different Courts even though on different grounds, where two similar processes are used in exercise of the same right…” PER OGAKWU, J.C.A.

WHETHER OR NOT THE COURTS HAVE THE POWER TO PUT AN END TO AN ACTION WHICH IS AN ABUSE OF COURT PROCESS

THE POSITION OF LAW WHERE PERPETUAL INJUNCTION AND GENERAL DAMAGES ARE CLAIMED BY A RESPONDENT

The reliefs of perpetual injunction and general damages claimed by the Respondents and granted by the lower Court are like leeches as their success is dependent on the success of the principal relief for declaration of title. Given the fact that the relief for declaration of title was wrongly granted, the said other reliefs would equally fail. The legal principle being sublato principali tollitur adjunctum (Co. Litt 389) [the principal being taken away, its adjunct is also taken away]: ADEGOKE MOTORS vs. ADESANYA (1989) 3 NWLR (PT 109) 250 at 269, SIMEON vs. COLLEGE OF EDUCATION, EKIADOLOR (2014) LPELR (23320) 1 at 39 and OLUSANYA vs. UBA PLC (2017) LPELR (42348) 1 at 32. PER OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The disputed land in this matter is a piece of farmland at Kuwyi in Niger State. The Respondents herein claim ownership of the land, being inheritance from their respective fathers, who are brothers; and who had inherited the land from their grandfather. From the facts pleaded by the Respondents, there had been previous litigation over the land before the Gwada Area Court which entered judgment in favour of the Appellant, but on further appeal to the Upper Area Court, Minna, the judgment of the Gwada Area Court was set aside and a retrial was ordered.

With the success at the Upper Area Court, the 1st Respondent commenced another action against the Appellant at the Sharia Court, Gwada. While the said action was pending, the Respondents instituted the proceedings which spawned this appeal before the High Court of Niger State in SUIT NO. NSHC/MN/220/2011: ALHAJI IBRAHIM IDRIS & ANOR. vs. BAWA MAGAJI. The Respondents claimed the following reliefs:
“Whereof the plaintiffs claim from the defendant a declaration of title to the land Kuwyi, an order of perpetual injunction restraining the defendant his servant assign and privies from trespassing further trespassing on the land; they also claim the sum of N1,000,000.00K general damages for trespass to the land since 2001 plus substantial costs.”

The Court processes were served on the Appellant and learned counsel filed a Memorandum of Appearance on Protest for the Appellant. (See page 16 of the Records). In the said Memorandum of Appearance, the Appellant’s address for service was stated to be through his Solicitors. Aside the filing of the Memorandum of Appearance, the Appellant did not file any other process or take any steps to defend the action. The Respondents consequently filed a motion for judgment in default of defence. The said motion which was filed on 12th February 2013 is at pages 114-117 of the Records of Appeal. The lower Court upon being satisfied that the motion and hearing notice were served on the Appellant at the address for service supplied in the Memorandum of Appearance proceeded to hear the motion for judgment in default of defence; and in its judgment which was delivered on 25th March 2013, the lower Court entered judgment for the Respondents as follows:
“It is thus hereby ordered that judgment is hereby entered in favour of the plaintiff/applicant against the defendant/respondent, in terms of plaintiffs’ statement of claim.
The plaintiffs are hereby declared as owners of title to the land called KUNYI. It is hereby Ordered that perpetual Injunction is granted to the plaintiffs restraining the defendant, his servants, assigns and privies from trespassing and further trespassing on the said land.
It is further Ordered the defendant to pay the sum of N100,000.00 (One Hundred Thousand Naira) only as general damages to the plaintiffs for the trespass.”

The Appellant was dissatisfied with the decision of the lower Court and with the leave of this Court granted on 17th January, 2019, he filed his original Notice of Appeal on 24th January 2019. The said Notice of Appeal is at pages 136-142 of the Records, while the judgment of the lower Court is at pages 122-123 of the Records. However, the extant Notice of Appeal on which the appeal was argued is the Amended Notice of Appeal filed on 22nd September 2021, pursuant to the order of this Court made on 16th September 2021.

The Records of Appeal was compiled and transmitted on 21st March 2019 and briefs of argument were filed and exchanged, which briefs learned counsel adopted and relied upon at the hearing of the appeal. The Appellant filed his brief on 28th March 2019 and Reply Brief on 13th May 2019; while the Respondent’s Brief was filed on 30th April 2019.

Even though the Respondents incorporated a preliminary objection in their brief of argument (see pages 2-3 of the Respondents’ Brief); they however failed to move the same at the hearing of the appeal. Accordingly, the said preliminary objection is deemed as abandoned and consequently discountenanced. It is struck out and would play no part in the resolution of this appeal. See CAREW vs. OGUNTOKUN (2011) LPELR (9355) 1 at 28-29, NSEFIK vs. MUNA (2013) LPELR (21862) 1 at 36-37 and THE REGD TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA vs. NAMA (2014) LPELR (22372) 1 at 26-28.

Let me further state that an appeal is by way of rehearing vide Order 7 Rule 2 (1) of the Court of Appeal Rules, 2021. See IHUNWO vs. IHUNWO (2013) 8 NWLR (PT 1357) 550 at 571, DPP vs. INEC (2008) LPELR (4044) 1 at 43 and ONUKOGU vs. ONUIGBO (2015) LPELR (24574) 1 at 54-55. The rehearing is based on the materials on which the lower Court arrived at the decision appealed against; except in situations where leave had been granted for further evidence to be adduced on appeal. After the judgment of the lower Court subject of this appeal, the Appellant made a futile attempt for the lower Court to set aside the judgment. The processes in respect of the application to set aside the judgment has been incorporated in the Records of Appeal and the parties have freely made reference to the same in their respective briefs of argument. I am unable to follow learned counsel on that route as the said processes were not before the lower Court as at the date of judgment and did not form part of the materials on which it arrived at its judgment. Accordingly, I would disregard all submissions about processes, proceedings and rulings that occurred after 25th March 2013 when the judgment appealed against was delivered.

Additionally, in the prolegomenon, I stated that the decision of the lower Court was based on a motion for judgment in default of defence. No evidence was adduced in proof of the reliefs claimed. The Appellant has however gone to town with submissions on the sufficiency vel non of the traditional history pleaded by the Respondents and the character or quality of evidence required to prove traditional history, as well as the duty of the Court in evaluation of evidence. In the light of the fact that no evidence was adduced in the matter, the said submissions are otiose and are not deserving of review and consideration in the diacritical circumstances of this matter.

The Appellant distilled three issues for determination in his brief of argument, scilicet:
“1. Whether the Honourable trial Court was right in refusing to dismiss Suit No: NSHC/MN/220/2011 whereas by the depositions and admissions of the Respondents, the said suit constituted an abuse of the process of Court?
2. Whether the learned trial Judge was right in refusing to dismiss Suit No: NSHC/MN/220/2011 whereas the plaintiffs/respondents failed woefully to prove their case?
3. Whether the learned trial Judge was right in refusing to dismiss the case of the plaintiffs/respondents whereas they relied solely on the perceived weakness of the defendant’s case in the suit?”

On their part, the Respondents formulated two issues for determination in their brief of argument, videlicet:
“1. Whether the lower Court has the jurisdiction to deliver judgment in favour of the respondent in this case.
2. Whether the learned trial Judge was right to have refused to dismiss the respondent’s case because it does not in any way constitute an abuse of the process of the Court.”

I will presently review the relevant submissions of learned counsel on the respective issues crafted by them and then seamlessly resolve the appeal en bloc.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
It is the Appellant’s submission that the lower Court ought to give regard to all the circumstances of the case in order to arrive at a proper determination of the case. It was stated that the Respondents’ processes disclosed that the action was an abuse of process and so the lower Court ought to have dismissed the case for being an abuse of process. The cases of SARAKI vs. KOTOYE (1992) 9 NWLR (PT 264) 156 at 188, AJUWA vs. SPDCN LTD (2008) 10 NWLR (PT 1094) 64 at 91 and UMEH vs. IWU (2008) 8 NWLR (PT 1089) 125 at 243-244 were referred to on the concept of abuse of process.

It was posited that the averments in paragraphs 16 (b) and 17 of the Respondents’ Statement of Claim show that the action was pending in three different Courts at the same time, which is multiplicity of actions, in consequence of which the last action filed is in abuse of process vide ETTE vs. EDOHO (2009) 8 NWLR (PT 1144) 601 at 609-610, DINGYADI vs. INEC (2011) 18 NWLR (PT 1224) 1 at 74-75 and 130, A-G ANAMBRA vs. UBA (2005) 15 NWLR (PT 947) 44 at 68, SARAKI vs. KOTOYE (supra), AFRICAN REINSURANCE CORPORATION vs. J.D.P. CONSTRUCTION NIG LTD (2003) 4 SCM 1 at 17 or (2005) [sic] 13 NWLR (PT 838) 609 at 635 and TSA INDUSTRIES LTD vs. FBN PLC (2012) 14 NWLR (PT 1320) 326 at 345. This Court was consequently urged to dismiss the case for being an abuse of process. The cases of TSA INDUSTRIES LTD vs. FBN PLC (supra), KODE vs. YUSSUF (2001) 4 NWLR (PT 703) [no page stated], USMAN vs. BABA (2005) 5 NWLR (PT 917) 113 at 20-21 [sic] and ONYEABUCHI vs. INEC (2002) 8 NWLR (PT 769) 417 at 441-442 and 444 were relied upon.

The Appellant’s contention on his second issue is that the lower Court was wrong in entering judgment for the Respondents for a declaration of title without evidence being led to prove the declaration sought by any of the five ways of proving title to land. The cases of OLUBODUN vs. LAWAL (2008) 17 NWLR (PT 1115) 1 at 37 and OBAWOLE vs. COKER (1994) 5 NWLR (PT 345) 416 at 43 [sic] were called in aid.

On the third issue, it was maintained that Order 20 Rule 9 of the High Court of Niger State Civil Procedure Rules, 2012 which the lower Court relied upon to enter judgment, enjoins the lower Court to consider whether the plaintiff is entitled to the relief claimed, before entering judgment in default of defence; more so as the Respondents are to succeed on the strength of their case and not on the weakness of the defence. The cases of OMISORE vs. AREGBESOLA (2015) ALL FWLR (PT 813) 1673 at 1771, BELLO vs. EWEKA (1981) 1 SC [no page stated] and OLUBODUN vs. LAWAL (supra) were cited in support.

It was further submitted that there was no proper service of hearing notice for the hearing of the application for judgment in default of defence as the affidavit of service states that the Appellant’s counsel refused service, since he had lost contact with the Appellant. It was opined that the lower Court, in the circumstances, ought to have adjourned the matter pursuant to Order 39 Rules 6 and 7 of the High Court of Niger State Civil Procedure Rules, 2012; so that the Appellant could be properly served. Still in argument, it was contended that though by Order 7 Rule 2 of the High Court of Niger State Civil Procedure Rules, 2012 service of the motion can be affected on Appellant’s counsel, but that in the circumstances, it was necessary to serve the Appellant personally. Furthermore, that the motion was not served within five days of filing as mandatorily required by Order 39 Rule 1 of the High Court of Niger State Civil Procedure Rules, 2012. It was therefore asserted that the service was irregular and that the lower Court was wrong to entertain the application without confirming that service was properly effected on the Appellant. The cases of ENE vs. ASIKPO (2010) 10 NWLR (PT 203) [sic] 477 at 515-516 and IBEZIM vs. IBEZIM (2015) ALL FWLR (PT 813) 1783 at 1818-1819 were referred to.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondents submit that the lower Court had the jurisdiction to entertain the Respondents’ action and that the Court processes were duly served on the Appellant as stipulated in Order 7 Rules 1 and 3 of the High Court of Niger State Civil Procedure Rules, 2012. It was stated that rules of Court are to be followed and obeyed and that the lower Court duly obeyed the rules of Court for the smooth and speedy dispensation of justice vide OYEGUN vs. NZERIBE (2010) 1 SCNJ 127 at 129 ratio 2. It was asserted that by Order 20 Rule 9 of the High Court of Niger State Civil Procedure Rules, 2012, the lower Court was empowered to enter judgment since the Appellant had failed to file his Statement of Defence.

The Respondents’ submission on their second issue is that abuse of process is the improper use of the judicial process which can come in infinite variety and conditions. The case of R-BENKAY vs. CADBURY (2012) 3 SCNJ 150 at 152 ratio 1-3 was referred to. It was posited that there was no abuse of process in this matter and it was asserted that the case was never pending in three different Courts at the same time as an order was made for a retrial of the case and the pursuit of the retrial was a proper and bona fide use of the judicial process. It was conclusively opined that the Appellant did not prove abuse of process. The case of UKACHUKWU vs. PDP (2013) 12 SCNJ 253 at 256 ratio 12 was relied upon.

APPELLANT’S REPLY ON LAW
The Appellant contends in the Reply Brief that the Respondents’ Brief was not a proper brief as it did not answer to the material points raised in the Appellant’s Brief; on account of which the said points are deemed to have been conceded. The cases of AJOMALE vs. YADUAT (NO. 2) (1991) 5 NWLR (PT 191) 266 at 285, ENGINERRING ENTERPRISES OF NIGER CONTRACTOR CO. OF NIG. vs. A-G KADUNA (1987) 2 NWLR (PT 57) 381 at 396 and ATIKU vs. THE STATE (2010) 1 NWLR (PT 1199) 241 at 282 were called in aid. The Appellant opined that issue number one distilled by the Respondent was incompetent and he proceeded to rehash the submissions that had already been made in the Appellant’s brief.

RESOLUTION
The Appellant has, inter alia, contended that there was no proper service of hearing notice on him for the date when the Respondents’ application for judgment in default of defence was heard. Now, the service of hearing notice occupies a pre-eminent position in legal proceedings. In SKENCONSULT NIG LTD vs. UKEY (1981) 1 SC 6 the apex Court held that service of process is to enable a party appear to defend the matter and due appearance by the party is a fundamental condition precedent before the Court can have competence and jurisdiction. This accords with the requirement of fair hearing and the principle of audi alteram partem. See also NWAOSU vs. NWAOSU (2000) 4 NWLR (PT 653) 351 at 359. The service of hearing notice is an essential aspect of our procedural law. It is a jurisdictional issue and a condition precedent to the competence of a Court to assume jurisdiction and adjudicate over the rights of the litigants in the matter: AKINMOSIN vs. MAKINDE (2012) LPELR (19686) 1 (CA), FIRST BANK vs. UDEOZO (2017) LPELR (43263) 1 at 12-15 and DARMA vs. ECOBANK (2017) 9 NWLR (PT 1571) 480 at 504.
The law is that a hearing notice is the only means of getting a party to appear in Court. But for proceedings to be invalidated on grounds of non-service of hearing notice, it has to be established that hearing notice was in fact not served on the party. Is the Respondent correct in the assertion that he was not served hearing notice? We will find out anon.

In the exordium, I stated that at the lower Court, learned counsel filed a memorandum of appearance for the Appellant and it was therein stated that:
“The Defendant’s address of service shall be through his solicitors, Messrs The Jurist Consult, Advocates & Legal Consultants, No. 150 Bosso Road, Minna, Niger State”
(See page 16 of the Records)

By the memorandum of appearance, Court processes for service on the Appellant were to be served on him through his Counsel. Let me state that at no time during the pendency of the matter at the lower Court did the said learned counsel withdraw his representation for the Appellant as eminently conveyed in the Memorandum of Appearance. Order 7 Rule 1 (2) of the Niger State High Court Civil Procedure Rules, 2012, which was the extant Rules at all times material to this action at the lower Court, provides as follows:
“(2) Where a party is represented by a Legal Practitioner, service of Court process of which personal service is not required may be made on such legal practitioner or his Law Chambers.”
The Respondents’ application for judgment in default of defence as well as hearing notice for the hearing of the said application are not processes which are required to be served on the Appellant personally under the Rules of Court. Appearance hearing been entered by learned counsel for the Appellant, Court processes could be properly and validly served on the said legal practitioner or his Law Chambers pursuant to the aforesaid Order 7 Rule 1 (2).

The contention of the Appellant is not that hearing notice was not served on his legal practitioner. The argument is that the legal practitioner refused service on the ground he had lost contact with the Appellant. So, the legal practitioner was duly notified of the hearing date as undertaken in the Memorandum of Appearance but he declined the service on the ground that he had lost contact with the Appellant. That is not right. The learned counsel remains an officer of Court and the least he could have done in the circumstances is to appear in Court and acquaint the Court with the position and if necessary withdraw representation for the Appellant. The dog-in-the-manger attitude exhibited by learned counsel is disrespectful to the Court. This is what the lower Court rightly stated of such conduct at page 123 of the Records:
“This attitude of Counsel to say the least is wrong. Once counsel has accepted brief of a litigant, he becomes the agent of that client and is bound to properly represent him/her until he/she withdraws by following due process of the law. This learned counsel has failed to do, it is therefore taken that he has knowledge of this suit and have been dully [sic] served.”

In the diacritical circumstances of this matter, the Appellant had due notice of the hearing date for the Respondents’ application for judgment in default of defence.

The Appellant makes a kerfuffle of the fact that the application for judgment in default of defence was not served on him within five days of filing as stipulated in Order 39 Rule 1 of the Niger State High Court Civil Procedure Rules, 2012. The Appellant did not state when he was served the application. I have also gone through the Record of Appeal, the holy grail for this appeal, with the finery of a judicial toothcomb and I am unable to see anything on the date the application was served, on the basis of which it can be held that the said Order 39 Rule 1 of the rules of the lower Court was not complied with. It is abecedarian law that the parties and the Court are bound by the Records of Appeal. It is the Records of Appeal that the Court will rely upon in the determination of an appeal. The Court will not depart from the Records of Appeal and any extraneous facts and submissions which are not borne out by the Records would be feckless and the Court cannot rely or act on the same: GARUBA vs. OMOKHODION (2011) 15 NWLR (PT 1269) 145 at 180, ARUM vs. NWOBODO (2013) 10 NWLR (PT 1362) 374, NNALIMUO vs. ELODUMUO (2018) LPELR (43898) 1 at 22, GWAGWALADA SPECIALIST HOSPITAL vs. KWADO (2022) LPELR (57618) 1 at 12-13 and ERIAYE vs. EREMIENYO (2022) LPELR (58095) 1 at 20-21. Accordingly, I will not join the Appellant’s counsel in the conjecture which is not borne out by the Records that the motion for judgment in default of defence was not served in the manner stipulated by Order 39 Rule 1 of the Niger State High Court Civil Procedure Rules, 2012.

The Appellant forcefully argued that the Respondents’ action was an abuse of process of Court on account of multiplicity of actions. The term abuse of process of a Court is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. Abuse of process can only mean the abuse of legal procedure or the improper use or misuse of the legal process. See AMAEFULE vs. THE STATE (1988) 2 NWLR (PT 75) 156 at 177. The Court under its inherent jurisdiction or power has the duty to ensure that the machinery of justice is duly lubricated and that it is not abused. Abuse of process simply means that the process of Court must be used bona fide and properly and must not be abused: ARUBO vs. AIYELERU (1993) 3 NWLR (PT 280) 126 at 142.
In SARAKI vs. KOTOYE (supra) at 188 Karibi-Whyte, JSC stated:
“The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. It is 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. But the employment of judicial process is only regarded generally 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 a multiplicity of actions on the same subject matter against same opponent on the same issues. See OKORODUDU vs. OKOROMADU (1977) 3 SC 21; OYEGBOLA vs. ESSO WEST AFRICA INC. (1966) 1 ALL NLR 170. Thus, the multiplicity of actions on the same matter between the same parties even where there exists 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, rather than the exercise of the right, per se”.
(Emphasis supplied)
See also the cases of OKAFOR vs. A-G (1991) 6 NWLR (PT 200) 659 at 681; CBN vs. AHMED (2001) 28 WRN 38 at 60-61 and MOGAJI vs. NEPA (2003) 8 WRN 42 at 53.
As stated by Edozie, JSC in AGWASIM vs. OJICHIE (2004) 18 NSCQR (PT 1) 359 at 367:
“It is trite law that the abuse of judicial process is the improper use of the judicial process by a party in litigation. It may occur in various ways, such as instituting a multiplicity of action on the same subject matter against the same opponent on the same issue or a multiplicity of action on the same matter between the same parties. It also occurs by instituting different actions between the same parties simultaneously in different Courts even though on different grounds, where two similar processes are used in exercise of the same right…”
In his own contribution, Niki Tobi, JSC (of blessed memory) at page 369 put the legal position as follows:
“The above factual position creates a scenario of the appellant pursuing the same matter by two processes. In other words, the appellants, by the two processes, are involved in some gamble or game of chance to get the best in the judicial process… 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 to obtaining victory in one of the processes or in both. Litigation is not a game of chess where players outsmart themselves by dexterity of purpose and traps. On the contrary, litigation is a contest by judicial process where the parties place on the table of justice their different positions clearly, plainly and without tricks.”
It is hornbook law that instituting several actions on the same subject matter against the same opponent on the same issues even when there is a right to bring the action is an abuse of process of Court: OKORODUDU vs. OKOROMADU (1977) 3 SC 21 and OYEGBOLA vs. ESSO WEST AFRICA INC. (1966) 1 ALL NLR 170. Where there is an abuse of process, it is the action which is later in time that constitutes the abuse of Court process. See NWEKE vs. UDOBI (2001) 5 NWLR (PT 706) 445 at 461-462 and AFRICAN REINSURANCE CORPORATION vs. JDP CONSTRUCTION NIG. LTD (2003) FWLR 251 at 270.

While it is inherent in the power of a Court to put an end to an action which is an abuse of process, the Court must exercise its power judicially and judiciously and with great circumspection: FASAKIN FOODS NIG CO. LTD vs. SHOSANYA (2003) 17 NWLR (PT 849) 237 at 247-248.
The Appellant’s contention that the Respondents’ action is an abuse of process is based on multiplicity of actions. Let me restate that evidence was not adduced before the lower Court so the previous actions from which the parties, issues and subject matter could be gleaned are not in evidence. I am not in oblivescence of the averments in the Respondents’ Statement of Claim which the Appellant referred to. It is rudimentary law that pleaded facts do not constitute evidence: AJUWON vs. AKANNI (1993) LPELR (311) 1 at 20, ELEGUSHI vs. OSENI (2005) LPELR (1111) 1 at 28 and EYIGEBE vs. IYAJI (2013) LPELR (20522) 1 at 16. Accordingly, in the absence of evidence establishing the multiplicity of actions on the same subject matter against the same opponent on the same issues, conventional wisdom dictates circumspection in holding that this matter is an abuse of process. I am therefore unable to agree with the Appellant, in the absence of relevant and appropriate evidence, that the Respondents’ action is an abuse of Court process.

I have already set out the reliefs claimed by the Respondents. The reliefs are for declaration of title to land, perpetual injunction and damages for trespass. The Respondents did not adduce any evidence to establish their entitlement to the declaration sought. The lower Court entered judgment in their favour for default by the Appellant in filing his Statement of Defence. In granting the Respondents’ application and entering judgment for them, the lower Court stated as follows at page 123 of the Records:
“Be that as it may, there is failure on the part of defendant to file defence to this suit and must be taken he has no defence to it. By virtue of Order 20 Rule 9 thereof the application of applicant to enter final judgment I find is well grounded in law and meritorious. It is thus granted as prayed”.

Order 20 Rule 9 of the Niger State High Court Civil Procedure Rules, 2012 which the lower Court applied in entering final judgment for the Respondents stipulates as follows:
“9. In all actions other than those in the preceding rules of this Order, if the defendant makes default in filing a defence, the plaintiff may apply to a Judge for judgment, and such judgment shall be given upon the statement of claim as the Judge shall consider the plaintiff to be entitled to.”

The above pericope from the judgment of the lower Court is lucent that the lower Court did not consider whether the Respondents were entitled to judgment for the reliefs claimed in their Statement of Claim as enjoined on it to do under the aforesaid Order 20 Rule 9. The lower Court proceeded on the premise that there having been a default in filing a statement of defence, it would be slavishly followed by judgment in default of defence without any consideration to whether the reliefs claimed can be granted without evidence being adduced.

Let me iterate that the Respondents claimed declaration of title to land. The law is settled beyond peradventure that declarations of right are not made either on mere admission or in default of defence without hearing appropriate evidence and being satisfied that the evidence established the entitlement to the declaration sought. See BELLO vs. EWEKA (1981) 1 SC 101, OKEDARE vs. ADEBARA (1994) 6 NWLR (PT 349) 157 at 185, AKANINWO vs. NSIRIM (2008) LPELR (321) 1 at 20-21 and AIYEOLA vs. PEDRO (2014) LPELR (22915) 1 at 38-39. In the words of Obaseki, JSC in FABUNMI vs. AGBE (1985) 1 NWLR (PT 2) 299 at 318:
“A claim for declaration of title is not established by admissions as the plaintiff must satisfy the Court by credible evidence that he is entitled to the declaration. The Court does not grant declaration on admission of parties. It has to be satisfied that the plaintiff owns the title clamed.”

On the settled state of the law, the lower Court erred in law when it entered judgment for the Respondents without hearing appropriate evidence and being satisfied that the Respondents were entitled to the declaration they sought.

The reliefs of perpetual injunction and general damages claimed by the Respondents and granted by the lower Court are like leeches as their success is dependent on the success of the principal relief for declaration of title. Given the fact that the relief for declaration of title was wrongly granted, the said other reliefs would equally fail. The legal principle being sublato principali tollitur adjunctum (Co. Litt 389) [the principal being taken away, its adjunct is also taken away]: ADEGOKE MOTORS vs. ADESANYA (1989) 3 NWLR (PT 109) 250 at 269, SIMEON vs. COLLEGE OF EDUCATION, EKIADOLOR (2014) LPELR (23320) 1 at 39 and OLUSANYA vs. UBA PLC (2017) LPELR (42348) 1 at 32.

The concatenation and conflating of the foregoing is that this appeal succeeds. The judgment of the lower Court delivered on 25th March 2013 is hereby set aside. The case is hereby remitted to the lower Court for venire de novo. The Chief Judge of the High Court of Niger State is to assign the matter to a Judge for expeditious hearing and determination. The parties are to bear their respective costs of this appeal.

PETER OLABISI IGE, J.C.A.: I have read in advance, the leading judgment of my learned brother, OGAKWU, JCA. I agree with his reasoning and conclusion that the appeal succeeds.

The judgment of the lower Court delivered on 25th March, 2013 is hereby set aside. The Appellant’s case shall be assigned to another Judge by the Chief Judge of the High Court of Niger State for expeditious hearing and determination of the suit.
There shall be no Order as to costs.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA.

I equally agree with the reasoning and the conclusion that the appeal succeeds. The judgment of the lower Court delivered on 25th March 2013 is hereby set aside.
I abide by the consequential orders therein.