MALLAM TANKO WANZAMI & ANOR v. ALHAJI ISA SALISU & ORS
(2014)LCN/6787(CA)
In The Court of Appeal of Nigeria
On Thursday, the 23rd day of January, 2014
CA/K/3/2006
JUSTICES
THERESA N. ORJI-ABADUA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
1. MALLAM TANKO WANZAMI
2. MALLAM GARBA JANZAMA – Appellant(s)
AND
1. ALHAJI ISA SALISU
2. MALLAM ABUBAKAR MUHAMMED
3. BARWA TRADA
4. KADUNA SOUTH LOCAL GOVERNMENT – Respondent(s)
RATIO
THE PURPOSE OF PARTICULARS OF ERROR TO A GROUND OF APPEAL
On the second and fourth grounds of objection complaining about the nature of the particulars of grounds one and four, it is trite law that the essence of particulars of error in law is to project the reason for the ground of appeal in point and that as such the fact that a particular or the particulars to a ground of appeal are inelegantly drafted does not invalidate the ground from which it flows – New Nigeria Bank Plc v. Imonikhe (2002) 5 NWLR (Pt. 760) 294 and Apapa v. Independent National Electoral Commission (2012) 8 NWLR (Pt.1303) 409. Thus, once the error or misdirection complained of is identified and properly oriented in a ground of appeal, the fact that the particulars to the ground are argumentative, repetitive or narratives is not sufficient to deny an appellant his right of appeal. This is in line with the activist approach to adjudication of matters which is to avoid technicality, as the principal duty of a court is to do justice – Dakolo v. Rewane-Dakolo (2011) 16 NWLR (Pt. 1272) 22. In fact, in Best (Nig.) Ltd v. Blackwood Hodge (Nig) Ltd (2011) 5 NWLR (Pt. 1239) 95, the Supreme Court held that where the complaint on a ground of law in a ground of appeal is clear and succinct, particulars of the error in law are unnecessary. It is not the complaint of the second Respondent that the errors in law alleged in grounds one and four of the notice of appeal are not clear and succinct therefore the issue of whether or not the particulars were inelegantly drafted is of no moment. PER ABIRU, J.C.A.
DEFINITION OF ABUSE OF COURT PROCESS
Now, abuse of process is a concept; it is an idea or a general notion formed by generalization from particular examples. It is a concept that is imprecise. It involves circumstances and situations of infinite variety and conditions. In Messrs NV Scheep & Anor v. The MV’S Araz’ & Anor. (2000) 15 NWLR (Pt. 691) 622 at page 664 Kabiri-Whyte, JSC said of the concept thus:
“The legal concept of the abuse of the judicial process or the abuse of the procedure of the court is very wide. The scope and content of the circumstances of the material facts and conduct, which will result in such abuse, are infinite in variety. It does not appear that the category can be closed. New unforeseen conduct from the stratagem of the plaintiffs can give rise to the abuse. An abuse may be constituted through a proper and legitimate conduct in bringing actions even in the exercise of an established right in the manner or time of instituting actions. It may be constituted by irregularities in the pursuit of actions.”
The concept of abuse of process has been dealt with in a myriad of cases in our courts. In several cases, the courts have looked at the concept from the perspective of what amounts to an abuse and have itemized certain circumstances that will give rise to an abuse of judicial process as:
(a) Instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues, or a multiplicity of action on the same matter between the same parties even where there exists a right to begin the action.
(b) Instituting different actions between the same parties simultaneously in different courts, even though on different grounds.
(c) Where two similar processes are used in respect of the exercise of the same right, for example, a cross appeal and a respondent’s notice.
(d) Where an application for adjournment is sought by a party to an action to bring an application for leave to raise issues of fact already decided by courts below.
(e) Where there is no iota of law supporting a court process or where it is premised on frivolity or recklessness.
See the cases of Jadesinmi v. Okotie-Eboh (1986) 1 NWLR (Pt. 16) 264, Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156, Jimoh v. Starco (Nig) Ltd (1998) 7 NWLR (Pt. 558) 523, Abubakar v. Bebeji Oil and Allied Products Ltd (2007) 18 NWLR (Pt. 1066) 319, Tomtec (Nig.) Ltd v. Federal Housing Authority (2009) 18 NWLR (Pt. 1173) 358. A common feature of all the cases on abuse of process is that the concept is the improper use of the judicial process by a party in litigation to interfere with the efficient and effective administration of justice to the irritation and annoyance of his opponent. An abuse of process does not lie in the right to use a judicial process but rather in the manner of the exercise of the right. It consists of the intention, purpose or aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice; it is the inconveniences and inequities in the aims and purposes of the action – Saraki v. Kotoye supra, Ogoejeofo v. Ogoejeofo (2006) 3 NWLR (Pt.966) 205, Ali v. Albishir (2008) 3 NWLR (Pt.1073) 94, Igbeke v. Okadigbo (2013) 12 NWLR (Pt. 1368) 225. PER ABIRU, J.C.A.
WHETHER OR NOT WHERE THE SUBJECT MATTER IN THE EARLIER SUIT WAS A SMALLER AREA OF LAND AND THE SUBJECT MATTER IN THE LATER SUIT WAS A MUCH LARGER PARCEL OF LAND, THE SUBJECT MATTER OF THE TWO SUITS CAN NOT BE SAID TO BE THE SAME
It is trite that where the subject matter in the earlier suit was a smaller area of land and the subject matter in the later suit was a much larger parcel of land, the subject matter of the two suits cannot be said to be the same – Okukuje v. Akwido (2001) 3 NWLR Pt. 700) 261, Anwoyi v. Shodeke (2001) 6 NWLR (Pt. 709) 321, Biariko v. Edeh-Ogwuile (2001) 12 NWLR (Pt. 726) 235. This point was made by Onu, JSC in Dokubo v. Omoni (1999) 8 NWLR (Pt. 616) 647 at pages 661-662 thus: “It is glaring that in the land concerned in the 1934 Suit vide Exhibit ‘B’, it is only the cemetery that was involved, whilst the subject matter of the Present Suit is a much larger piece of land on which a burrow put far away from the cemetery and whose excavation led to a demand for the payment of compensation as depicted on the plans (Exhibits ‘A’ and ‘E’) and amply described in the evidence of DW6 …., is what we are here concerned. In Exhibit ‘B’ (the 1934 Suit) the parties were only concerned with the felling of trees on the grave yard of the Respondents which they regarded as a desecration of the grave yard. The District Officer sitting as a Court of Appeal visited the locus on June 9, 1936, and made a note that he was only concerned with the land where trees were felled. He (the District Officer) emphasized that the whole matter rested on where the actual felling of trees took place. He then proceeded to hold that the felled trees were ‘well within the area which was granted by Appellants to Respondents.’… Therefore, in my respectful view, the plea of estoppel should not have been upheld by the court below.” PER ABIRU, J.C.A.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Kaduna State in Suit No. KAD/KDH/520/2003 delivered by Honorable Justice J. S. Abiriyi (as he then was) on the 23rd of March, 2005 dismissing the suit as an abuse of process. The facts of the case leading up to this appeal are pretty straight forward. By an amended statement of claim dated 30th of March 1998 and taken out in Suit No. KDH/KAD/80/97, the first Respondent herein, Alhaji Isa Salisu, as plaintiff, claimed against the second Respondent herein, Mallam Abubakar Muhammed, one Alhaji Tanko Wanzami, not the Appellant herein, and the fourth Respondent herein, Kaduna South Local Government, as first to the third defendants, thus:
i. A declaration of title over a piece of land measuring 50 feet by 100 feet situate, lying and being described as Plot No. LA 10 Zango Road Extension contained in Certificate of Occupancy No. 028303 dated the 18th of March, 1981 and registered as No. 028303 Vol. X page 74 at former Kaduna Local Government Administrator’s Office now Kaduna South Local Government, Makera, Kaduna.
ii. A declaration that the first Defendant’s entry into the said plot and the demolition of the development thereon, which had reached roofing level, amounted to trespass.
iii. A perpetual injunction restraining the first and second Defendants, their agents and privies howsoever from entering into and doing any act in the said Plot No. LA 10 Zango Road Extension, T /Wada, Kaduna.
iv. General and special damages against the first Defendant in the sum of N150.000.00.
v. Any other relief the Honorable Court may grant in the circumstances of this case.
The amended statement of claim contained averments of nineteen paragraphs in support of the claims. The second Respondent herein and the said Alhaji Tanko Wanzami, as first and second defendants in the suit filed a statement of defence and counterclaim dated the 26th of March, 2002 and their claims by the counterclaim were for:
i. A declaration that the second defendant is the legal and rightful owner of a piece of land situate and known as Plot No. LA 10 Zango Road, Extension Tudun Wada, Kaduna covered by Certificate of Occupancy No. 031642 dated 15th of December 1982 and registered in Volume X at Page 278 of the Lands Register, Kaduna.
ii. A declaration that the purported allocation of the right of occupancy by the Kaduna South Local Government, Kaduna of the piece of land known as Plot No. LA 10 Zango Road, Extension Tudun Wada, Kaduna or in whatever name to the plaintiff is null and void.
iii. A declaration that the first defendant is now the equitable and/or bona fide owner of the Plot No. LA 10 Zango Road, Extension Tudun Wada, Kaduna based on the sale agreement and/or purchase receipt dated 9th of March, 1983 between the two defendants coupled with assumption of undisturbed and continuous possession of the said property until sometime in December, 1996 by the first defendant.
iv. An order of perpetual injunction restraining the plaintiff, his agents, servants and/or privies whomsoever from further committing acts of trespass upon the aforementioned piece of land or doing any other acts incompatible and inconsistent with the first defendant’s rights or interest thereon.
v. N50,000.00 being damages against the plaintiff for trespassing unto the aforementioned piece of land.
vi. Such further or other order or orders or reliefs as the Honorable Court may deem fit and just to make in the circumstances of this case.
Trial apparently commenced in the matter and in the course of which the person sued as Alhaji Tanko Wanzami, the second defendant therein, died. The first Appellant filed an application dated the 28th of July, 2003 seeking to be joined in the suit as the second plaintiff on the ground that he was the beneficial owner of the Plot No. LA 10 Zango Road, Extension Tudun Wada, Kaduna and the holder of the Certificate of Occupancy No. 031642 dated, 15th of December, 1982. The first Respondent herein, as the plaintiff in that suit, filed a counter affidavit in opposition to the application and consequent on which, according to the first Appellant, he withdrew the application and it was struck out by the Court on the 27th of September, 2004.
The Appellants, as the first and second plaintiffs, commenced the suit leading up to this appeal against the four Respondents, as the first to the fourth defendants, and this is suit No. KDH/KAD/520/2003 and their claims were for:
i. A declaration that the first plaintiff is the beneficial owner of a piece of land situate and known as Plot No. LA 10 Zango Road, Extension Tudun Wada, Kaduna covered by Certificate of Occupancy No. 031642 dated 15th of December 1982 and registered in Volume X at Page 278 of the Lands Registry at Kaduna to the exclusion of the defendants.
ii. A declaration that the second plaintiff is the beneficial owner of piece of land situate and known as Plot No. LA 6, Zango Road, Extension Tudun Wada Kaduna covered by Certificate of Occupancy No. 030763 of the defendant.
iii. A declaration that the purported allocation of the right of occupancy by the Kaduna South Local Government Kaduna, the piece of land known Plot No. LA 10 and LA 6 Zango Road, Extension Tudun Wada Kaduna or in whatever name to the defendants is null and void.
iv. A perpetual injunction restraining the defendant, their agents and privies whomsoever from entering into or doing any acts on the said Plots No. LA 10 and LA 6 both at Zango Road, Kaduna and from further committing acts of trespass upon the aforementioned piece of land or doing any other acts thereon incompatible and inconsistent with the plaintiffs’ right or interest thereon.
v. General damages against the defendants jointly and severally in the sum of N200,000.00
The amended statement of claim contained averments of thirty nine paragraphs in support of the claims of the Appellants. The first Respondent, as the first defendant, filed a statement of defence dated the 5th of April, 2004 while the second Respondent, as the second defendant, filed a statement of defence and counterclaim. The counterclaim of the second Respondent was specifically against the first Appellant and his claims were for:
i. A declaration that the Counterclaimant is the customary and beneficial owner of a piece of land situate and known as Plot No. LA 10 Zango Road, Extension Tudun Wada, Kaduna covered by Certificate of Occupancy No. 031642 dated 15th of December, 1982 and registered in Volume X at Page 278 of the Lands Register, Kaduna.
ii. A declaration that the purported allocation of the right of occupancy by the Kaduna South Local Government, Kaduna of the piece of land known as Plot No. LA 10 Zango Road, Extension Tudun Wada, Kaduna or in whatever name to the first plaintiff is null and void.
iii. A declaration that the Counterclaimant is now the equitable and/or bona fide owner of the Plot No. LA 10 Zango Road, Extension Tudun Wada, Kaduna based on the sale agreement and/or purchase receipt dated 9th of March, 1983 between the late Alhaji Tanko Wanzami and the Counterclaimant and coupled with assumption of undisturbed and continuous possession of the said property until sometime in December, 1996 by the plaintiff.
iv. An order of perpetual injunction restraining the plaintiff, his agents, servants and/or privies whomsoever from further committing acts of trespass upon the aforementioned piece of land or doing any other acts incompatible and inconsistent with the Counterclaimant’s rights or interest thereon.
v. N100,000.00 being damages against the first plaintiff by the Counterclaimant for trespassing unto the aforementioned piece of land.
vi. Such further or other order or orders or reliefs as the Honorable Court may deem fit and just to make in the circumstances of this case.
The first Respondent thereafter filed a motion on notice dated the 8th of February, 2005 praying the lower Court to dismiss the suit as an abuse of process. The second Respondent also filed an application dated the 16th of February, 2005 praying for an order striking out the suit as it constitutes an abuse of process and was designed to overreach the second Respondent. The Appellants filed a motion on notice dated the 28th of February, 2005 praying for an order consolidating the hearing of Suit No. KDH/KAD/80/97 with the hearing of the suit, Suit No. KDH /KAD/520/2003. The records of the Court show that the attention of the lower Court was drawn to the three pending applications and that on the 15th of March, 2005, the lower Court took arguments on the application of the second Respondent and it granted the application in a Ruling delivered on the same day and it dismissed the case of the Appellants as an abuse of process. The Appellants were dissatisfied with the decision and they caused to be filed a notice of appeal dated the 17th of March, 2005 against it. The notice of appeal contained four grounds of appeal.
In arguing the appeal before this Court, the Counsel to the Appellants presented an amended brief of argument dated and filed on the 17th of May, 2013 and it consisted of sixteen pages. In response, Counsel to the first Respondent presented an amended brief of arguments dated the 15th of July, 2013 and filed on the 30th of August, 2013 and it consisted of five pages. Counsel to the second Respondent relied on a brief of arguments dated the 7th of March, 2006 and filed on the 8th of March, 2006 and it consisted of eleven pages. The brief of arguments of the third Respondent was dated and filed on the 28th of June, 2013 and it consisted of eleven pages. The brief of arguments of the fourth Respondent was dated and filed on the 20th of June 2013 and it consisted of thirteen pages. Counsel to the Appellants filed an amended reply brief to the briefs of arguments of the first and second Respondents and it was dated the 17th of May, 2013 and it consisted of ten pages. At the hearing of the appeal, Counsel to the parties adopted their respective briefs of arguments.
Counsel to the Appellants formulated two issues for determination in this appeal and these were:
i. Whether it was proper for the trial Court to foreclose the right of the Appellants to be heard by dismissing their case when the Appellants were not in default or suit heard on merit.
ii. Whether the trial Court was right to first hear a motion to dismiss the suit despite the presence of and the move by the Appellant to present an application for consolidation.
Counsel to the first Respondent formulated no issue for determination in his brief of arguments and neither did he present any arguments therein. Counsel to the first Respondent adopted wholesale the contents of the brief of the arguments of the second Respondent. Counsel to the second Respondent prefaced his submission with a notice of preliminary objection and he thereafter adopted the two issues for determination formulated by the Counsel to the Appellants.
Counsel to the third Respondent formulated one issue for determination and this was:
Whether or not from the totality of the facts leading to this appeal, the Appellants’ suit in Suit No. KDH/KAD/520/2003 amounted to an abuse of process.
Counsel to the fourth Respondent agreed that there was indeed only one issue for determination in this appeal and that it was as formulated by Counsel to the third Respondent.
This Court will commence the consideration of this appeal from the notice of preliminary objection of the second Respondent and adopted by Counsel to the first Respondent. The grounds of objection were:
a. That the Appellants’ notice of appeal dated the 17th of March, 2005 was defective as it was not signed by either the Appellants or by their Counsel.
b. That the particulars (a) and (b) in support of the first ground of appeal were not related to the ground of appeal.
c. That the second and third grounds of appeal were incompetent as they did not challenge the ratio decedendi of the Ruling appealed against, were not based on issues canvassed before the lower Court and were repetitive, narrative, argumentative and highly conclusive.
d. That the fourth ground of appeal was incompetent as the particulars were repetitive, narrative and argumentative and highly conclusive and that the issue for determination formulated from the ground of appeal encompassed an incompetent ground of Appeal.
Counsel presented arguments on the notice of preliminary objection from pages 3 to 6 of the brief. Counsel stated that the notice of appeal was not signed and that a Court process once filed became a public document and that an unsigned document has no probative value and ought to be discountenanced and disregarded; he referred to the cases of Okeke v. A. G. Anambra State (1992) 1 NWLR (Pt. 215) 60 and A. G. Kwara State v. Alao (2000) 9 NWLR (Pt. 671) 84. Counsel stated further that particulars (a) and (b) to the first ground of appeal were not related to the said ground and that the law is that where that happens, the other particulars serve no useful purpose and the ground of appeal is incompetent and ought to be struck out; he referred to Kachia v. Yazid (2001) 17 NWLR (Pt. 742) 431, Stirling Civil Engineering Nig. Ltd v. Yahaya (2002) 2 NWLR (Pt. 750) 1 and Honika Sawmill Nig. Ltd v. Mary Okojie Hoff (1994) 2 NWLR at 326) 252.
Counsel stated that the second and third grounds of appeal complained against the refusal of the lower Court to hear the application for consolidation of the hearing of the two suits before hearing the application for striking the suit as an abuse of process. Counsel stated that this issue did not arise from the decision being appealed against and did not challenge the ratio decedendi of that decision and as such the two grounds of appeal were incompetent and he referred to the case of Stirling Civil Engineering Nig. Ltd v. Yahaya supra. Counsel stated that the issue of the refusal of the lower Court to first hear the motion for consolidation was not raised or canvassed before the lower Court and cannot now be canvassed before this Court and that as such the two grounds of appeal predicated on the issue should be struck out and he referred to the case of Jimoh v. Star Company (Nig) Ltd (1998) 7 NWLR (Pt. 558) 523.
Counsel stated further that the particulars of the fourth ground of appeal were narratives and were argumentative and that the ground of appeal was thus liable to be struck out as incompetent and he referred to the case of Ezewusim v. Okporo (1993) 5 NWLR (Pt.294) 478. Counsel stated that since the first issue for determination was distilled from the fourth ground of appeal as well as the first ground of appeal, it had become tainted and was liable to be struck out and he referred to the case of Ayalogu v. Agu (1998) 1 NWLR (Pt.532) 129. Counsel urged the Court to uphold the preliminary objection.
In response, Counsel to the Appellants stated in the reply brief that the first ground of objection about the notice of appeal not being signed was incorrect as it was duly endorsed with the name of Counsel and it was signed by that Counsel. On the second ground of objection about the particulars (a) and (b) of the first ground of appeal and the fourth ground of objection on the particulars of the fourth ground of appeal, Counsel stated that the arguments thereon were not well founded as the particulars in question were related to the their respective grounds of appeal and were neither argumentative nor were they narratives. Counsel said that the complaint of the second Respondent was not that he did understand not purport of the two grounds of appeal and that as such the grounds, even if defective, were still competent grounds of appeal and he referred to the cases of Sosanya v. Onadeko (2005) 8 NWLR (Pt. 926) 213 and Bhojsons Plc v. Daniel-Kalio (2006) 2 SNJ 156. On the objection to the second and third grounds of appeal, Counsel stated that it was incorrect that the grounds were repetitive and argumentative and that the motion for consolidation was before the lower Court and it was brought to the attention of the lower Court by Counsel and this foisted an abiding constitutional duty on the lower Court to entertain the application and decide it one way or the other before pronouncing final orders dismissing the suit. Counsel referred to the case of Wema Bank Ltd v. International Fishing co. Ltd (1998) 6 NWLR (Pt. 555) 557. Counsel urged the Court to dismiss the notice of preliminary objection.
On the first ground of the preliminary objection of the second Respondent that the notice of appeal filed by the Appellants was neither signed by the Appellants nor by their Counsel, the records of appeal show that the assertion is incorrect. The notice of appeal contained in the records of appeal carries the name and signature of the Counsel to the Appellants and it is trite law that the records of appeal and its contents are binding on the parties, Counsel and on the Court. Therefore neither the parties nor the Counsel or an appellate Court can read into the record what is not there and they cannot also read out of the record what is there. They must read the record in the exact content and interpret it – Oguntayo v. Adelaja (2009) 15 NWLR (Pt. 1163) 150, Commissioner of Police v. Okoye (2012) 14 NWLR (Pt. 1320) 396. It is the notice of appeal in the records of appeal that governs and not the copy served on the second Respondent. This ground of objection was thus not well founded.
On the second and fourth grounds of objection complaining about the nature of the particulars of grounds one and four, it is trite law that the essence of particulars of error in law is to project the reason for the ground of appeal in point and that as such the fact that a particular or the particulars to a ground of appeal are inelegantly drafted does not invalidate the ground from which it flows – New Nigeria Bank Plc v. Imonikhe (2002) 5 NWLR (Pt. 760) 294 and Apapa v. Independent National Electoral Commission (2012) 8 NWLR (Pt.1303) 409.
Thus, once the error or misdirection complained of is identified and properly oriented in a ground of appeal, the fact that the particulars to the ground are argumentative, repetitive or narratives is not sufficient to deny an appellant his right of appeal. This is in line with the activist approach to adjudication of matters which is to avoid technicality, as the principal duty of a court is to do justice – Dakolo v. Rewane-Dakolo (2011) 16 NWLR (Pt. 1272) 22. In fact, in Best (Nig.) Ltd v. Blackwood Hodge (Nig) Ltd (2011) 5 NWLR (Pt. 1239) 95, the Supreme Court held that where the complaint on a ground of law in a ground of appeal is clear and succinct, particulars of the error in law are unnecessary. It is not the complaint of the second Respondent that the errors in law alleged in grounds one and four of the notice of appeal are not clear and succinct therefore the issue of whether or not the particulars were inelegantly drafted is of no moment.
With regards to the third ground of objection that the second and third grounds of appeal did not arise from the decision appealed against, a reading of the two grounds of appeal show that they complained against the non-hearing of the Appellants motion for consolidation by the lower Court before entertaining the motion of the second Respondent and dismissing the case of the Appellants. The records of appeal show that motion for consolidation was duly filed by the Appellants on the 28th of February, 2005 and was fixed for hearing on the 4th of March, 2005. The records show that when the matter came up before the lower Court on the 11th of March, 2005, Counsel to the Appellants pointed the attention of the lower Court to the fact that there were three pending applications before the Court and these applications, from the records, were the respective applications of the first and second Respondents to strike out/dismiss the case of the Appellants as an abuse of process and the motion of the Appellant for consolidation. The records show that on the 15th of March, 2005 when the matter came up, the lower Court entertained only the application of the second Respondent to strike out the suit and it ruled thereon dismissing the case of the Appellants. Thus, the complaints in the two grounds of appeal emanated from what transpired in the lower Court at the hearing of the motion leading up to the ruling appealed against. They cannot thus be said to be unrelated to the ruling of the lower Court which in issue in this appeal. The law is that a ground of appeal that arises from the judgment of a court is competent even if it does not challenge the decision of the court – George v. Omokhodion (2011) 15 NWLR (Pt. 1269) 145 and Ugwu v. State (2013) 4 NWLR (Pt. 1343) 172. The two grounds of appeal are thus proper in this appeal.
This Court finds no merit in the notice of preliminary objection of the second Respondent and same is hereby dismissed.
Reading through the various processes in this appeal and the briefs of arguments of the parties, it is the view of this Court that there are two issues for determination in this appeal. These are:
i. Whether the lower Court was correct in its finding that the action of the Appellants in Suit No. KDH/KAD/520/2003 amounted to an abuse of process in the circumstances of this case.
ii. Whether it was improper for the lower Court to have entertained the second Respondent’s application to strike out the suit as an abuse of process without first hearing and determining the Appellants’ motion for consolidation.
The two issues shall be treated seriatim.
On the first issue for determination, Counsel to the Appellants stated that multiplicity of actions means instituting multiple actions on the same subject matter against the same opponents on the same issue or multiple actions on the same matter between the same parties. Counsel stated that looking at the two suits in issue in this appeal, it is obvious that the parties are not the same and the subject matter is not the same and that as such the action cannot be said to be caught by multiplicity of action and did not amount to an abuse of process. Counsel referred to the cases of Arubo v. Aiyeleru (1993) NWLR (Pt. 280) 126, Doma v. Adamu (1994) 4 NWLR (Pt. 598) 311 and Idoko v. Ogbukwe (2003) FWLR (Pt. 149) 1530. Counsel stated further that even assuming that the suit amount to an abuse of process, the order of dismissal of the suit in limine was a strong punishment and way too harsh in the circumstances of the case as it amounted to foreclosing the right of the Appellants to ever pursue their substantive claims against the Respondents and he again referred to the case of Idoko v. Ogbukwe supra on the distinction between an order of dismissal and an order of striking out. Counsel stated that the position of the law is that where an order of dismissal will work injustice in a matter and an order of striking will be more just, then the proper order for a Court to make is an order of striking out; he referred to the cases of Awosanya v. Algata & Eko (1965) 1 All NLR 228, African Continental Bank v. Yesufu (1980) 1 – 2 SC 49. Counsel urged this Court resolve the issue in favour of the Appellants and set aside the order of dismissal.
In his response, Counsel to the second Respondent stated that the Appellants admitted in their counter affidavit to the motion of the second Respondent before the lower Court that the issues and the subject matter in the two suits were the same and that as such the assertion needed no further proof and he referred to the case of Gambari v. Ilori (2002) 14 NWLR (Pt. 786) 78. Counsel stated that with the exception of the second Appellant and the third Respondent, the parties in the two suits were the same and that the suit constituted an abuse of process notwithstanding that there were additional parties and he referred to the case of Ministry of Works v. Thomas (Nig.) Ltd (2002) 2 NWLR (Pt. 752) 740. Counsel stated that the Appellants filed an application in the first suit, Suit No.KDH/KAD/80/97, seeking to join the first Appellant as a party but that they curiously withdrew the application without stating a reason and filed Suit No. KDH/KAD/520/2003 when he could have conveniently joined in the first suit. Counsel stated that the position of the law is that where a Court finds that a suit amounts to an abuse of process, the proper order to make is one of dismissal and not striking out and he referred to the cases of Arubo v. Aiyeteru (1993) 3 NWLR (Pt. 280) 126, Kode v. Yusuf (2001) 4 NWLR (Pt. 703) 392, amongst others. Counsel urged this Court to resolve the issue in favour of the Respondents.
In his brief of arguments, Counsel to the third Respondent stated that an abuse of judicial process may be occasioned when a party improperly uses a court process resulting in the annoyance and intimidation of his opponent and interference with the administration of justice and that a typical example is where two similar processes are used against the party in respect of the exercise of the same right and subject matter; he referred to the cases of Okoreaffia v. Agwu (2008) All FWLR (Pt. 445) 1601 and Owonikoko v. Arowosaiye (1997) 10 NWLR (Pt. 523) 61. Counsel stated that it is an abuse of court’s process for a party to file two actions concurrently against the same party on the same subject matter and that abuse of process always involves some bias, malice, some deliberateness, some desire to misuse or pervert the system of administration of justice and he referred to the cases of Okorodudu v. Okoromadu (1997) 3 SC 21, Olutinrin v. Agaka (1998) 6 NWLR (Pt. 554) 366 and Umeh v. Iwu (2008) 4 SCM 191. Counsel stated that the Appellants were aware of the pendency of Suit No.KDH/KAD/80/97 before they commenced the present action leading up to this appeal on the same subject matter, to canvass the same issues and between the same parties. Counsel submitted that this was a multiplicity of suits and was thus an abuse of process and he referred to the cases of Amaefule v. State (1988) 2 NWLR (Pt.75) 156 and Saraki v. Kotoye (1992) NWLR (Pt. 246) 156. Counsel concluded by saying that where a court comes to the conclusion that an action is an abuse of process, the proper order to make is one of dismissal and he cited African Recorp v. JDP Construction Nig. Ltd. (2003) 13 NWLR (Pt. 838) 609.
On his own part, Counsel to the fourth Respondent stated that abuse of process generally means that a party in litigation takes a most irregular, unusual and precipitate action in the judicial process for the sake of action qua litigation, merely to waste valuable litigation time and that it is an action which could be avoided by the party without doing harm to the matter in dispute; he referred to the case of Sodipo v. Lemminkainen OY (1992) 8 NWLR (Pt. 258) 229. Counsel stated that an abuse of process occurs when different actions based on the same facts between the same parties are filed in different courts or even the same court simultaneously in respect of the same right and subject matter and that once an abuse of process is apparent, a Court will not hesitate to nip it in the bud as a court of law will always prevent the improper use of its machinery; he referred to the cases of Harriman v. Harriman (1989) 5 NWLR (Pt. 119) 6, Benaplastic Industries Ltd v. Vasilyev (1999) 10 NWLR (Pt. 624) 620 and CBN v. Ahmed (2001) 11 NWLR (Pt. 724) 369. Counsel stated that from the printed record of the appeal, it was not far-fetched that the parties, the subject matter and the issues in the suit before the lower Court were the same as those canvassed in Suit No. KDH/KAD/80/97 and that this was a classic case of duplication of law suits and thus a clear example of abuse of process. Counsel urged this Court to uphold the finding of the lower Court.
The question on this issue for determination is whether this suit leading up to this appeal, Suit No. KDH/KAD/520/2003 constitutes an abuse of process. In answering this question, the lower Court stated in its ruling thus:
“I have considered the affidavit evidence before this Court and arguments of learned counsel for the Defendants and Plaintiffs and it appears to me too that the subject matter is the same. See also paragraph 5 (iii) of the counter affidavit of the plaintiffs. The parties also in my view are the same.
In the circumstances, I do not see any need for this suit being filed again when the issue of the ownership of plot LA 10 Zango Road T/Wada, Kaduna is already before the court.
Instead of this suit the plaintiffs could at best apply to be joined in the earlier suit. It is surprising that they did apply to be joined and withdrew the application. Since that application was only struck out, I think it can still be filed and heard by that court.
In the circumstances, I am of the view that the instant suit should be dismissed.” (See pages 75 to 76 of the records)
Now, abuse of process is a concept; it is an idea or a general notion formed by generalization from particular examples. It is a concept that is imprecise. It involves circumstances and situations of infinite variety and conditions. In Messrs NV Scheep & Anor v. The MV’S Araz’ & Anor. (2000) 15 NWLR (Pt. 691) 622 at page 664 Kabiri-Whyte, JSC said of the concept thus:
“The legal concept of the abuse of the judicial process or the abuse of the procedure of the court is very wide. The scope and content of the circumstances of the material facts and conduct, which will result in such abuse, are infinite in variety. It does not appear that the category can be closed. New unforeseen conduct from the stratagem of the plaintiffs can give rise to the abuse. An abuse may be constituted through a proper and legitimate conduct in bringing actions even in the exercise of an established right in the manner or time of instituting actions. It may be constituted by irregularities in the pursuit of actions.”
The concept of abuse of process has been dealt with in a myriad of cases in our courts. In several cases, the courts have looked at the concept from the perspective of what amounts to an abuse and have itemized certain circumstances that will give rise to an abuse of judicial process as:
(a) Instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues, or a multiplicity of action on the same matter between the same parties even where there exists a right to begin the action.
(b) Instituting different actions between the same parties simultaneously in different courts, even though on different grounds.
(c) Where two similar processes are used in respect of the exercise of the same right, for example, a cross appeal and a respondent’s notice.
(d) Where an application for adjournment is sought by a party to an action to bring an application for leave to raise issues of fact already decided by courts below.
(e) Where there is no iota of law supporting a court process or where it is premised on frivolity or recklessness.
See the cases of Jadesinmi v. Okotie-Eboh (1986) 1 NWLR (Pt. 16) 264, Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156, Jimoh v. Starco (Nig) Ltd (1998) 7 NWLR (Pt. 558) 523, Abubakar v. Bebeji Oil and Allied Products Ltd (2007) 18 NWLR (Pt. 1066) 319, Tomtec (Nig.) Ltd v. Federal Housing Authority (2009) 18 NWLR (Pt. 1173) 358.
A common feature of all the cases on abuse of process is that the concept is the improper use of the judicial process by a party in litigation to interfere with the efficient and effective administration of justice to the irritation and annoyance of his opponent. An abuse of process does not lie in the right to use a judicial process but rather in the manner of the exercise of the right. It consists of the intention, purpose or aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice; it is the inconveniences and inequities in the aims and purposes of the action – Saraki v. Kotoye supra, Ogoejeofo v. Ogoejeofo (2006) 3 NWLR (Pt.966) 205, Ali v. Albishir (2008) 3 NWLR (Pt.1073) 94, Igbeke v. Okadigbo (2013) 12 NWLR (Pt. 1368) 225.
The specie of the abuse of process canvassed by the Respondents before the lower Court was multiplicity of actions – that Suit No KDH/KAD/520/2003 was a multiple action of Suit No. KDH/KAD/80/97. The question is – when is there said to be a multiplicity of actions? This Court in its decision in Unity Bank Plc v. Olatunji (2013) 15 NWLR (Pt. 1378) 503 at 534 C-F answered this question thus:
“In Okafor v. Attorney General, Anambra State (1988) 2 NWLR (Pt. 79) 736, the Supreme Court said that “it is the law that multiplicity of action on the same matter may constitute an abuse of process of the court, but that this is so only where the action is between the same parties with respect to the same subject matter.” In Saraki v. Kotoye supra, the Supreme Court also stated that multiplicity of actions arise where a second action is commenced “on the same subject matter against the same opponent on the same issues.” In Ikhine v. Edjerodje (2001) 18 NWLR (Pt. 745) 466, the Supreme Court reiterated on page 488 that “the law is that abuse of court process in regard to multiple actions between the same parties on tire same subject matter may arise when a party improperly uses judicial Process to the irritation, annoyance and harassment of his opponent not only in respect of the same subject matter but also in respect of the same issues in the other action.”
What these cases require a Court to do when faced with an issue of multiple actions constituting an abuse of process is to look at the processes filed in the two actions and see whether they are between the same parties on the same subject matter and on same or very similar issues…” These principles were reiterated by the Supreme Court in Igbeke v. Okadigbo (2013) 12 NWLR (Pt. 1368) 225. Applying these principles and looking at the processes filed in two suits, Suit No. KDH/KAD/80/97 and KDH/KAD/520/2003 part of the contents of which have been earlier reproduced in this judgment, it is obvious that the parties in the two suits are not the same. The two Appellants, who are the two plaintiffs in Suit No. KDH/KAD/520/2003 and the third Respondent, who is the third defendant in the same suit, were not parties to Suit No. KDH/KAD/80/97 and there was nothing in all the processes filed showing or implying that they were privies, servants and/or agents of the parties in that suit. All the parties were agreed that the first Appellant was not the same person sued as Alhaji Tanko Wanzamiin Suit No. KDH/KAD/80/97 and that the Person so sued is dead; the points were emphatically made by the second Respondent in the affidavit in support of his motion to strike out the suit as an abuse of process.
Further, the subject matter in Suit No. KDH/KAD/520/2003 is two plots of land, one known as Plot No. LA 10 Zango Road, Extension Tudun Wada, Kaduna covered by Certificate of Occupancy No. 031642 dated 15th of December, 1982 and registered in Volume X at Page 278 of the Lands Registry at Kaduna, and the other as Plot No. LA 10 Zango Road, Extension Tudun Wada Kaduna covered by Certificate of Occupancy No. 030763. While the subject matter in Suit No. KDH/KAD/80/97 was only the plot of land known as Plot No. LA 10 Zango Road, Extension Tudun Wada, Kaduna covered by Certificate of Occupancy No. 031642 dated 15th of December, 1982. It is trite that where the subject matter in the earlier suit was a smaller area of land and the subject matter in the later suit was a much larger parcel of land, the subject matter of the two suits cannot be said to be the same – Okukuje v. Akwido (2001) 3 NWLR Pt. 700) 261, Anwoyi v. Shodeke (2001) 6 NWLR (Pt. 709) 321, Biariko v. Edeh-Ogwuile (2001) 12 NWLR (Pt. 726) 235. This point was made by Onu, JSC in Dokubo v. Omoni (1999) 8 NWLR (Pt. 616) 647 at pages 661-662 thus:
“It is glaring that in the land concerned in the 1934 Suit vide Exhibit ‘B’, it is only the cemetery that was involved, whilst the subject matter of the Present Suit is a much larger piece of land on which a burrow put far away from the cemetery and whose excavation led to a demand for the payment of compensation as depicted on the plans (Exhibits ‘A’ and ‘E’) and amply described in the evidence of DW6 …., is what we are here concerned. In Exhibit ‘B’ (the 1934 Suit) the parties were only concerned with the felling of trees on the grave yard of the Respondents which they regarded as a desecration of the grave yard. The District Officer sitting as a Court of Appeal visited the locus on June 9, 1936, and made a note that he was only concerned with the land where trees were felled. He (the District Officer) emphasized that the whole matter rested on where the actual felling of trees took place. He then proceeded to hold that the felled trees were ‘well within the area which was granted by Appellants to Respondents.’… Therefore, in my respectful view, the plea of estoppel should not have been upheld by the court below.”
It is crystal clear that the only thing in common between the two suits is that the first, second and fourth Respondents sued as first, second and fourth defendants in Suit No. KDH/KAD/520/2003 were the plaintiff and defendants in suit No. KDH/KAD/80/97 and this fact alone does not make Suit No. KDH/KAD/520/2003 a multiple action of Suit No. KDH/KAD/80/97 and it cannot thus constitute an abuse of process – Nwaigwe v. Federal Republic of Nigeria (2009) 16 NWLR (Pt. 1166) 169.
It is apparent from the contents of the two applications filed by the first and second Respondents praying that suit No. KDH/KAD/520/2003 be dismissed or struck out as an abuse of process that the only reason for the application was that the Appellants herein could have applied to join in suit No. KDH/KAD/80/97 to ventilate their grievances rather than commencing a fresh suit. This was also the reasoning of the lower court in its Ruling. The law, however, is that where a party to a suit is, by law, given the option or choice of exercising his right by different ways, his adversary cannot prescribe the particular method by which the party must exercise his right and he cannot complain that there is an abuse of process if the party exercises his right in any of the permitted ways – R-Benkay (Nig) Ltd. v. Cadbury Nig. Plc (2012) 9 NWLR (Pt. 1306) 596. The Appellants, in the instant case, had the option of either joining in Suit No. KDH/KAD/80/97 or commencing a new suit to ventilate their grievance, their exercise of the right to commence a fresh action cannot amount to an abuse of process.
They would only have been guilty of abusing the process of court if they had decided to exercise the two options concurrently, at the same time – Saraki v. Kotoye supra. It was not in contest amongst the parties that though the first Appellant filed a motion to join as a party in suit No. KDH/KAD/80/97, he withdrew the application and same was struck out. Suit No. KDH/KAD/520/2003 cannot thus amount to an abuse of process – Tomtec (Nig) Ltd v. Federal Housing Authority supra. The lower Court was in error when it found that the suit was an abuse of process. The first issue for determination is resolved in favour of the Appellants.
With this resolution of the first issue for determination in favour of the Appellants, the second issue for determination, on whether the lower Court ought to have first heard the Appellants’ motion for consolidation before hearing the motion to dismiss the suit as an abuse of process, becomes an academic question. It is not in the habit of Court to entertain and resolve academic questions – Shettima v. Goni (2011) 18 NWLR (Pt. 1279) 413, Uduaghan v. Ogboru (2012) 1 NWLR (Pt. 1282) 521.
In conclusion, this Court finds merits in this appeal and it is hereby allowed. The decision of the High Court of Kaduna State in suit No. KAD/KDH/520/2003 delivered by Honorable Justice J. S. Abiriyi (as he then was) on the 23rd of March, 2005 dismissing the suit as an abuse of process is hereby set aside. The suit is remitted to the Chief Judge of Kaduna State for assignment to a trial Judge for hearing on the merits. It was the application of the second Respondent that led to the dismissal of the suit by the lower Court and he should bear the Appellants’ cost of this appeal. The Appellants are awarded the cost of this appeal assessed at N30,000.00 against the second Respondent. These shall be the orders of this Court.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had read in advance a copy of the judgment of my learned brother, Abiru, J.C.A., just delivered and I agree with him that the suit commenced by the Appellants before the Kaduna state High Court in suit No. KDH/KAD/520/2003 does not constitute an abuse of process of court in that the parties and the subject matters are not completely the same.
In suit No. KDH/KAD/80/1997, it was the 1st Defendant in the suit giving rise to this appeal that sued as the only Plaintiff against the present Plaintiff, 2nd Defendant and the 4th Defendant. The present 2nd Plaintiff, i.e. Mallam Garba Janzama and the 3rd Defendant were not parties in the suit commenced by the present 1st Defendant in suit No. KDH/KAD/80/1997. In the Amended Statement of claim filed in the present suit, the said Mallam Garba Janzama is equally seeking for an order of declaration of title against all the Defendants in respect of his land situated and known as Plot No. LA. 6 Zango Road, Extension T/Wada Kaduna, whereas in suit No. KDH/KAD/80/1997, only Plot No. LA 10 Zango Road Extension was described as the land in dispute. In the present suit, two different lands are in dispute. The Appellants in this appeal have different interests and, by their assertions, they inherited their respective lands from their respective ancestors. It is glaring that the parties, the issues and subject matters are not the same. Abuse of process in this con occurs when a party improperly and tortuously uses a legitimately issued court process to obtain a result that is either unlawful or beyond the process’s scope. It consists of multiplicity of actions on the same subject matter against the same opponent on the same issue, or a multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action. As was stated in the leading judgment, the present suit does not constitute an abuse of process of court because no multiplication of suits has occurred, therefore, the trial Court was in complete error to have so found. I, too, allow this appeal and abide by the consequential orders made therein.
ITA A. MBABA, J.C.A.: I have read the draft of the lead judgment just delivered by my learned brother, H. A. O. ABIRU, JCA and I agree with his reasoning and conclusions, that there is merit in the Appeal.
I too, allow the appeal and abide by the consequential orders in the lead judgment.
Appearances
Fausat AbdulSalaamFor Appellant
AND
Miss M. A. Okpe – 1st Respondent
Kayode Faturiyele – 2nd Respondent
E. Ulebe with
M. B. Yusuf – 3rd Respondent
Tajudeen Oladoja with
M. T. Rashid & I. AbdurRahaman – 4th RespondentFor Respondent
