MBAS MOTEL LIMITED V. WEMA BANK PLC. (2013)

MBAS MOTEL LIMITED V. WEMA BANK PLC.

(2013)LCN/6048(CA)

In The Court of Appeal of Nigeria

On Friday, the 22nd day of March, 2013

CA/K/319/2007

RATIO

WORDS AND MEANING: “DISCRETION”

Discretion in the judicial and legal con means equitable decision of what is just and proper under the facts and circumstances of a particular case guided by the principles of law – Arta Industries (Nig) Ltd vs Nigerian Bank for Commerce & Industry (1998) 4 NWLR (Pt 546) 357 and Soyinka vs Oni (2011) 3 NWLR (Pt 1264) 294.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A

DISCRETIONARY JURISDICTION: WHAT IS A DISCRETIONARY JURISDICTION OF A COURT

The discretionary jurisdiction of the court forms part of the inherent power that is innate to the court once it is established. It is a jurisdiction that vests naturally in a court by virtue of its creation under the Constitution of the Federal Republic of Nigeria. Courts are the primary custodians of the Constitution and by reason of which they are inherently imbued with sacrosanct and far-reaching fundamental powers to preserve and uphold the rule of law – Gadi vs Male (2010) 7 NWLR (Pt 1193) 225.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A

DISCRETION: NATURE OF THE DISCRETIONARY POWERS OF A COURT

The court’s discretion transcends all legal and equitable, and enables the court to make such orders as it thinks fit. This means that the court is entitled to make such order as may be fair and just in all circumstances of the case – Olusola vs Trust Properties Ltd (2010) 8 NWLR (Pt 1195) 1.
Discretion is a very fluid situation and when a court is invited to exercise its discretion one way or the other, the court has to take cognizance of the very facts of the case before it- Bello vs Yakubu (2008) 14 NWLR (Pt 1106) 104. The court’s discretion must be exercised so as to do what justice and fair play may require having regards to the facts and circumstances of each particular case – Mamman Vs Salaudeen (2005) 18 NWLR (Pt 958) 478. A court must always exercise its discretion only on the basis of the materials placed before it and on no extraneous considerations – CFAO (Nig) Plc vs Sanu (2008) 15 NWLR (Pt 1109) 1.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A

DISCRETION: THE DISCRETION OF THE COURT IN GRANTING APPLICATIONS

DISCRETION: DISCRETION IS LIMITED TO THE PARTICULAR COURT IN QUESTION
In other words, where a matter involves the exercise of judicial discretion, only the court exercising the discretion can limit itself. The court is not bound to exercise the discretion in a particular way in accordance with an earlier or existing judicial decision. Each exercise of judicial discretion by a court must depend on the facts and peculiar circumstances of each case as previous exercise of judicial discretion has no binding effect – Odusote vs Odusote (1971) 1 All NLR 219, Institute of Chartered Accountants of Nigeria Vs Attorney- General, Federation (2004) 3 NWLR (Pt 859) 186, Kwankwanso vs Governor, Kano State (2006) 14 NWLR (Pt 1000) 444, Bello vs Yakubu supra, Oyegun vs. Nzeribe (2010) 16 NWLR (Pt 1220) 568, Okoh vs University of Lagos (2011) 14 NWLR (Pt 1268) 563.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A

RULES OF COURT: PURPOSE OF THEIR CREATION

JURISDICTION: IMPORTANCE

JUSTICES

ABDU ABOKI Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

MBAS MOTEL LIMITED Appellant(s)

AND

WEMA BANK PLC. Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Kano State in Suit No K/130/2006 contained in the Ruling delivered by Honorable Justice A. T. Badamasi on the 9th of October, 2006. By the consent of the parties, the lower Court, on the 24th of April, 2006, entered judgment in favour of the Respondent in the sum of N3,520,790.00 together with interest at the rate of 19% from 9th of Match, 2006 till date of judgment and thereafter at the rate of 10% until final liquidation. The Appellant willingly submitted to judgment.
On the 15th of May, 2006, the Appellant filed an application dated the 13th of May, 2006 before the lower Court praying for an order allowing it to liquidate the judgment sum in installments of N500,000.00 down payment and monthly sums of N100,000.00. The Respondent opposed the application and the lower Court took arguments thereon. In a considered Ruling delivered on the 15th of June, 2006, the lower Court granted the application but not in the terms sought by the Appellant. The lower Court directed the Appellant to make a down payment of N750,000.00 and monthly installments of N150,000.00 towards liquidating the judgment debt.
The Appellant was not satisfied and on the 19th of June, 2006, it filed another application before the lower court asking for a variation of the order contained in the Ruling of the 15th of June 2006 to read that it should liquidate the judgment sum by making a N500,000.00 down payment and monthly installment sums of N100,000.00. In reaction to the application, the Respondent filed an application dated the 21st of June, 2006 praying for an order striking out the application of the Appellant dated 19th of June, 2006 on the ground that the lower Court lacked jurisdiction to entertain the application and that the application was an abuse of process and also for an order rescinding the order on installmental payments made on the 15th of June, 2006 and giving the Respondent liberty to proceed against the assets of the Appellant in liquidation of the judgment debt. The lower Court heard the application of the Respondent first and in a considered Ruling delivered on the 9th of October, 2006, the lower court upheld the contention of the Respondent and it struck out the application of the Appellant dated the 19th of June, 2006 as incompetent. The Appellant was dissatisfied with the decision and it caused a notice of appeal dated the 10th of October, 2006 to be filed against it. The notice of appeal contained one ground of appeal.
In compliance with the Rules of this court, the Appellant filed a brief of arguments dated the 8th of October, 2007 and it consisted of eleven pages. The Respondent filed a brief of arguments consisting of nine pages and dated the 28th of November, 2008 in response but the brief of arguments was deemed proper on the 26th of May, 2010. At the hearing of the appeal on the 4th of February, 2013, counsel to the Appellant and to the Respondent relied on and adopted their respective briefs of arguments.
In his brief of arguments, counsel to the Appellant distilled one issue for determination and this was:
Whether the learned trial Judge without hearing the Appellant’s motion on notice dated the 19th of June, 2006 was right in striking it out as being incompetent?
This issue was adopted by the Counsel to the Respondent in his brief of argument as sufficient to determine this appeal.
In arguing the issue, Counsel to the Appellant submitted that every court of law has an inherent power and/or jurisdiction to entertain all applications pending before it and that such power and/or jurisdiction can only be removed by express words.
Counsel stated that one of the twin cardinal principles of fair hearing and of the administration of justice is that a party must be heard before his fate is determined and he submitted therefrom that it would amount to unfair hearing to ignore, pronounce on or determine an application before a court without a hearing. Counsel submitted that a motion, however stupid and even if it is an abuse of the judicial process, must be heard and determined one way or the other by a trial judge and that it cannot therefore be a judicial and judicious exercise of discretion to deny an applicant the right to move his motion for whatever reason. Counsel referred to the case of Okoro vs. Okoro (1998) 3 NWLR (Pt.540) 65.
Counsel submitted further that the order of instalmental payments made by the lower Court on the 15th of June, 2006 was an ancillary order which can be made, rescinded, or varied at any time after judgment upon certain principles and that it was not a final order that rendered the lower Court funtus officio the subsequent application of the Appellant dated the 19th of June, 2006. Counsel referred to the provisions of Order 40 Rule 8 of the High Court of Kano State (Civil Procedure) Rules and submitted that the lower Court had power to entertain the application of the Appellant dated the 19th of June, 2006 and this was more so as the terms of the order of instalmental payments sought on the application was different from the order granted by the lower Court on the 15th of June, 2006. Counsel referred to the case of Ukachukwu vs Uba (2006) All FWLR (Pt 300) 1736, amongst others. Counsel submitted that the application of the Appellant dated the 19th of June, 2006 was thus not incompetent and that the decision of the lower Court striking out the application lacked any legal basis.
In response, counsel to the Respondent stated that the learned trial Judge found in the Ruling that the application of 19th of June, 2006 was similar in content to the earlier application for instalmental payments determined in the ruling of 15th of June, 2006 and the lower Court held that it had no power to re-open the exact same issue it had decided earlier. Counsel submitted that the position taken by the lower Court was infallible in the circumstances and he referred to the case Chieshe Vs Nicon Hotel Ltd (2007) All FWLR (Pt 388) 1152. Counsel stated that the application of 19th of June, 2006 was a clear case of abuse of process and he referred to the case of Uba Vs Ukachukwu (2006) All FWLR (Pt.337) 515.
Counsel stated that reference to the concept of fair hearing by Counsel to the Appellant was completely inappropriate in the circumstances as the Appellant was fully heard before the lower court gave its ruling of the 15th of June, 2006. Counsel also stated that the submission of Counsel to the Appellant that a court was duty bound to hear all applications however stupid was misconceived as the court only had a duty to hear applications commenced by due process of law and not one commenced as an abuse of court process. Counsel further submitted that the Counsel to the Appellant obviously did not appreciate the meaning of the wordings of Order 40 Rule 8 of the High Court of Kano (Civil Procedure) Rules because the provisions talk of recission of an order of instalmental payment and not variation and the application of the 19th of June, 2006 cannot be subsumed under the provisions.
This appeal revolves around the application filed by the Appellant before the lower Court and dated the 19th of June, 2006. By the application, the Appellant requested the lower court to vary an order of instalmental payment of the judgment debt owed by the Appellant to the Respondent and made by the lower court on the 15th of June, 2006 on an earlier application also filed by the Appellant. It is without doubt that the application of the Appellant of 19th of June, 2006 was an appeal to the discretionary jurisdiction of the lower Court.
Discretion in the judicial and legal con means equitable decision of what is just and proper under the facts and circumstances of a particular case guided by the principles of law – Arta Industries (Nig) Ltd vs Nigerian Bank for Commerce & Industry (1998) 4 NWLR (Pt 546) 357 and Soyinka vs Oni (2011) 3 NWLR (Pt 1264) 294.

It was in recognition of the peculiarity of the discretionary jurisdiction of the court that the principle of law developed that where the court is invested with the discretion on whether or not to grant an application, and the grant of the application is not as a matter of right, no limit can be placed on the number of times that an applicant can approach the court on such application as each application will be considered on its own merits – Ogwajiofo vs Onyekagbu (1964) 1 All NLR 124, Folorunsho vs Shaloub (1994) 3 NWLR (Pt.333) 413,Mercantile Group A G vs Aiyela (1995) 8 NWLR (Pt 414) 450.
In other words, where a matter involves the exercise of judicial discretion, only the court exercising the discretion can limit itself. The court is not bound to exercise the discretion in a particular way in accordance with an earlier or existing judicial decision. Each exercise of judicial discretion by a court must depend on the facts and peculiar circumstances of each case as previous exercise of judicial discretion has no binding effect – Odusote vs Odusote (1971) 1 All NLR 219, Institute of Chartered Accountants of Nigeria Vs Attorney- General, Federation (2004) 3 NWLR (Pt 859) 186, Kwankwanso vs Governor, Kano State (2006) 14 NWLR (Pt 1000) 444, Bello vs Yakubu supra, Oyegun vs. Nzeribe (2010) 16 NWLR (Pt 1220) 568, Okoh vs University of Lagos (2011) 14 NWLR (Pt 1268) 563. Thus, if a party in a case approaches the court for an order of interlocutory injunction to restrain an act and the court refuses the application, this does not foreclose the party, where situations change and fresh facts evolve, from approaching the same court in the same suit at a later date to pray again for an order of interlocutory injunction. The fact that the court had refused an earlier application for injunction does not make the court functus of officio the latter application and neither does it mean that the court must automatically refuse the latter application. The court must, in such circumstances, consider the latter application on its own peculiar facts and merits and is empowered to grant it where it finds it just and fair to do so. The latter application must, however, be predicated on new and fresh facts and not on the same facts as the earlier application. This is the essence of the discretionary jurisdiction of the Court.

Order 40 Rule 8 of the High Court of Kano (Civil Procedure) Rules provides thus:
“(1) When any judgment or order directs the payment of money, the Court may, for any sufficient reason, order that the amount shall be paid by instalments with or without interest
(2) Such an order may be made at the time of giving judgment, or at any time afterwards, and may be rescinded upon sufficient cause at any time”.
Counsel to the Respondent suggested in his written address that the provisions of the Order does not empower the Court to entertain an application for variation of an order of instalmental payment. A close reading of the provisions show that there is nothing therein that forbids a court from varying an order of instalmental payment where the interest of justice so requires.

It is trite that the Rules of Court are handmaids to justice and were not designed to stultify justice. Therefore, the Rules of Court cannot circumscribe or delimit the discretionary powers of the court to grant or make just and fair orders where the circumstances so require. Order 40 Rule 8 did not thus preclude the court from entertaining the application of the Appellant dated the 19th of June, 2006.
Now, the ruling on appeal was the outcome of the lower Court’s deliberation on the application of the Respondent dated the 21st of June, 2006 praying that the application of the Appellant dated the 19th of 2006 be struck out and one of the grounds upon which the Respondent predicated his request was that the Appellant’s application was an abuse of process. The lower Court made the following findings in the ruling:
“It is trite law that its one (sic) empowered to look at the face of processes before them with a view to determining whether from the face of such Processes they have jurisdiction to entertain a matter or not. It is in the light of this that I had a thorough look at the 2 applications filed by the judgment debtor and the 2 affidavit accompanying the application and I discovered that the prayers in both motion are identical and the contained (sic) of the affidavits are the same except the later affidavit contained exhibit A & B which are demand letters from Nig. Breweries Plc and Intercontinental Bank Plc respectively.
Mere inclusion of exhibit A & B in this application in my view does not give me power to re-open this issue of instalmental payment when I had earlier ruled on as doing that is tantamount to this court sitting on appeal over its decision” (see page 71 of the records)
The two applications referred to by the learned trial Judge in the ruling were the earlier application for instalmental payments filed on the 15th of May, 2006 by the Appellant and which was decided in the Ruling of the lower Court delivered on the 15th of June, 2006 and the present application in issue dated the 19th of June, 2006. The lower Court found that the prayers on the two applications and the contents of the affidavits in support of the two applications were the same. The Appellant did not appeal against these findings of the lower Court and it will be deemed to have accepted the same as true and correct and the appellate Court will not interfere with it – Nwaolisah Vs Nwabufor (2011) 14 NWLR (Pt 1268) 600. So what the Appellant desired to do by the application of 19th of June, 2006 was to re-argue the very same application with the very same prayers on the very same facts that the lower Court had earlier taken and ruled upon. It was an attempt to re-litigate the same issues that had been distinctly raised and determined by a court of competent jurisdiction in a valid and subsisting Ruling between the same parties. The application of the Appellant dated the 19th of June, 2006 was caught by the doctrine of res judicatam and the law is that an application so caught is one of the recognized species of abuse of process of court – Usman Vs Baba (2005) 5 NWLR (Pt 917) 113, Offot Vs Leaders & Co Ltd (2007) 7 NWLR (Pt 1032) 1, Jimoh Vs Akande (2009) 5 NWLR (Pt 1135) 549, Yusuf Vs Ajaokuta Steel Co. Ltd (2010) 2 NWLR (Pt 1177) 167. The application of the Appellant dated the 19th of June 2006 was thus a clear abuse of process – Ali Vs Albishir (2008) 3 NWLR (Pt 1073) 94 and Umeh Vs Iwu (2008) 8 NWLR (Pt 1089) 225.
Counsel to the Appellant argued that notwithstanding that the application was an abuse of process, the lower Court was still obligated to hear the application and that the non-hearing of the application before striking it out amounted to a breach of fair hearing. Counsel, with respect, did not appreciate that one of the side effects of abuse of process by reason of res judicatam is that it robs the court of jurisdiction to entertain the matter or application in question – Ekennia Vs Nkpakara (1997) 5 NWLR (Pt.504) 152, Ito Vs Ekpe (2000) 3 NWLR (Pt 650) 678, Abubakar Vs Bebeji Oil and Allied Products Ltd (2007) 18 NWLR (Pt 1066) 319, Polyvalent (Nig) Ltd Vs Akinbote (2010) 8 NWLR (Pt 1197) 506, Dingiyadi vs Independent National Electoral Commission (2011) 10 NWLR (Pt 1255) 347.

It is settled law that where an issue is raised which questions or touches on the jurisdiction of the Court, it must be determined first before anything else Attorney-General, Rivers State vs Attorney-General, Akwa Ibom State (2011) 8 NWLR (Pt 1248) 31, Okpalauzuegbu vs. Ezemenari (2011) 14 NWLR (Pt.1268) 492, African Petroleum Plc Vs Adeniyi (2011) 15 NWLR (Pt.1271) 560.

Now, jurisdiction is fundamental to the exercise of power by a court in relation to matters before it. It is the lifeline of the adjudicatory powers of a court. Everything a court does without jurisdiction is a nullity. So immediately the Court found that it lacked the jurisdiction to entertain the application of the Appellant dated the 19th of June, 2006 because it was exactly the same as the earlier one it had decided, it would have amounted to a waste of time going ahead to hear the application – Dingiyadi Vs Independent National Electoral Commission supra, Okpalauzuegbu vs Ezemenari supra. The learned trial Judge was thus on very firm ground, in the circumstances, when he struck out the application without hearing same. This court cannot fault the decision taken by the lower Court. The sole issue for determination in this appeal is resolved against the Appellant.
There is an aspect of this case that this court finds a bit worrisome, particularly as it portrays the entire administration of justice system. There was no contest in this matter that the Appellant owed monies to the Respondent. The Appellant did not contest this fact before the lower Court and it submitted to judgment and judgment was entered in favour of the Respondent in the sum of N3,520,790.00 together with interest on the 24th of April, 2006.The Appellant did not pay the judgment sum that it expressly admitted that it owed. The Appellant caused his counsel, Messrs M N Dunr & Co, to file an application for instalmental payment of the judgment sum and he proposed to make a down payment of N500,000.00 and pay N100,000.00 monthly installments. The lower Court granted the prayer for instalmental payments but not in the terms sought by the Appellant, the lower court directed a down payment of N750,000.00 and monthly installments of N150,000.00. The Appellant thereafter changed Counsel to Messrs Gatba, Okeke & Co and the new Counsel filed the application dated the 19th of June, 2006 seeking to vary the order of instalmental payments. This application was struck out. The Appellant apparently thereafter engaged its present lawyers to prosecute this appeal on its behalf.
All these while and up till date, the Appellant neither paid to the Respondent the instalmental payment as directed by the court or even the down payment of N500,000.00 and N100,000.00 monthly installments that it had been proposing since 2006. There is nothing to show that the Appellant has paid a single kobo out of the amount it admitted owing and for which judgment was entered by consent since 2006, seven years ago, and it has used the machinery of the court and the services of “learned gentlemen of the Bar” to perpetuate this injustice. This is not right and it is unexplainable to the common man on the street. This cannot engender public confidence in our justice system. We must never lose sight of the fact that justice is rooted in public confidence and it is essential to social order and security. It is the bond of society and the cornerstone of human togetherness. Justice is the condition in which the individual is able to identify with society, feel at one with it and accept its rulings. The moment members of the society lose confidence in the system of administration of justice, a descent to anarchy begins.

Lawyers as operators of the administration of justice system owe a duty, to the society that nurtured them and made them what they are, to ensure that they conduct their activities in a manner that edifies and brings honor, respect and belief to the justice system. They should not allow themselves to be used by litigants to bring the justice system into disrepute. It is pertinent that this Court reminds Counsel of the eternal words of a great jurist J Wesley McWilliams who writing in an American Bar Association Journal in January 1955 (41 ABA 18) wrote in an article he titled “The Law as a Dynamic Profession” thus:
“We belong to an ancient, to a great, to an honored profession. The practice of Law is a worthy calling. It has rewarded us with financial success and with prestige and leadership in our communities. It has given us much happiness and the good life. From it we have received the gratitude and respect of our friends and neighbors whom we have served. Our word affords intellectual pleasure with dignity and independence, in competition with our fellow Lawyers with whom we have cemented warm friendships and enjoyed happy companionships. For these blessings, we cannot but have a sense of gratitude and of obligation. The most productive, unselfish and wholly satisfying repayment of the obligation is constructive work to increase the effectiveness of our judicial system and the welfare of the profession.”
In conclusion, this Court finds and holds that this appeal lacks merit and is totally misconceived. The appeal is hereby dismissed and the decision of the High Court of Kano State in Suit No K/130/2006 contained in the Ruling delivered by Honorable Justice A. T. Badamasi on the 9th of October, 2006 is affirmed. The Respondent is awarded the costs of this appeal assessed at N50,000.00. These shall be the orders of the Court.

ABDU ABOKI, J.C.A.: I have had the opportunity of reading before now the judgment just delivered by my learned brother H.A.O. Abiru, JCA.
I entirely agree with the reasoning and conclusion contained therein, that there is no merit in the appeal and it is hereby dismissed by me. I abide by the consequential order as to costs, contained therein.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree with my learned brother, Abiru, J.C.A, that this appeal filed against the decision of the lower Court made on 15/6/06 concerning the Motion dated 19/6/06 and filed by the Appellant after the lower Court delivered its decision in a similar Motion for liquidation of the judgment debt by instalments constitutes an abuse of process of Court.
Barely four days after the lower Court had determined the Appellant’s previous Motion for an order of instalmental payment, the Appellant filed a fresh motion before the lower Court praying for:
“(a) an order for leave to the Judgment Debtor/Applicant to apply to vary the order of this Honourable Court made on the 15th day of June, 2006; and
(b) for an order varying the order of this Honourable Court made on 15th day of June, 2006 liquidating the judgment Debt by making a down payment of N750,000.00 and monthly instalments of N150,000.00 to a down payment of N500,000.00 and monthly instalments of N100,000 until the judgment Debt is fully liquidated.”
A valid preliminary objection was raised against the said motion by the Respondent herein at the lower Court, via the Motion on Notice dated 21/6/06 and filed on the same date. In the said Motion, the Respondent sought for the following reliefs:
“(i) An Order of this honourable Court striking out the Motion on Notice dated 19th June, 2006 filed by the judgment Debtor/Respondent herein for lack of jurisdiction and entertain let alone granting same.
(ii) An Order of this honourable Court striking out the Motion on Notice dated 19th June, 2006 filed by the judgment Debtor/Respondent herein for being an abuse of the Court process.
(iii) An Order of this honourable Court rescinding its order on instalmental payment made on 15th June, 2006 and allow the judgment Creditor/Applicant to levy execution for the whole judgment sum, judgment Debtor/Respondent having disobeyed the order and resulted to abuse of the Court process.
(iv) Any Order or orders as the Court may deem fit to make in the circumstances of the Application.”
The said motion was heard and determined by the lower Court and, as a result it struck out the Appellant’s Motion for being incompetent. The Appellant, then appealed against the said decision striking out his action.
It is instructive to note that by the Appellant filing the new application, it then manifested it’s displeasure with the order made by the lower Court on the 15th June, 2006. In the latter application, the Appellant was insisting that the said order of 15/6/2006 be varied to synchronize with the terms it had previously suggested in it’s former application which had already been ruled upon by the lower Court on the said 15/6/2006.
The Supreme Court in Ovemseri vs. Osagiede (1998) 11 NWLR Part 572, per Iguh, J.S.C., on the extent of power of a court to vary its judgment and order held thus:
“It is however necessary to point out that this inherent power of the Court to amend or vary its judgment is limited only to situation where:-
(i) there is a clerical mistake in the judgment or order; or (ii) there is an error arising from an accidental slip or omission; or (iii) it is necessary to do so to carry out its own meaning and to make its intention plain. Such error or omission must be an error in expressing the manifest intention of the Court, as in the present case. It has also to be stressed that this inherent power does not extend to the Court’s mistakes of law even where this is apparent on the face of the order or judgment nor can it be invoked where the order or judgment correctly expresses the Court’s intention.”
It is, therefore, settled that except by way of appeal, “no court has the power to rehear, review, alter or vary any judgment or order, after it has been entered in an application made in the original action or matter or in a fresh action brought to review the judgment or order. The object or the rule is to bring litigation to finality, but it is subject to a number of exceptions.” See Bassey vs. Bassey (2009) 12 NWLR Part 1156 page 617 at 633.

It is, also, a settled principle that there should be finality in litigation and that a party should not be twice vexed in the same matter. The Civil law system has a method of preventing injustice to the parties in a case supposedly finished and helping to avoid unnecessary waste of resources in the Court system. lt is against the rule of public policy for anyone to be vexed twice on the same ground and/or the same issues. In an appropriate case, the parties affected are estopped from commencing a fresh action before any Court on the same cause and on the same issues already decided or pronounced upon by a Court of competent jurisdiction in a previous action or application.

Further, abuse of Court process has been defined by the apex Court in various cases to include a situation where a party improperly uses judicial process to the irritation, harassment and annoyance of his opponent and to interfere with the administration of Justice.
In the present appeal, the issue is not filing two or more similar processes at the same time in the same Court or different Courts, but, fundamentally, filing a fresh process where similar application containing the same prayers but slightly modified in the form of order for variation, had previously been filed by the same Applicant against the same Respondent, and, in respect of which the decision of the Court had been handed down. Rather than the Appellant appealing against the said ruling of the lower Court delivered on the 15th June, 2006, in respect of the previously decided application, the Appellant, in utter disrespect to the rule of law and procedure, and order of the Court, filed a similar Motion with similar prayers before the lower Court. This does not just seem irritating and annoying to the Appellant’s opponent, but, also, to the Court. What a subtle manner to spite a Court!
In Ansa vs. Cross Lines Ltd (2005) 14 NWLR Part 946 page 675, this Court held that it is an abuse of process to relitigate on an issue before the same Court. It was stated therein that the trial Court rightly dismissed the application as an abuse of process on having reached the conclusion that the issue had already been ruled upon. That has put a stop to the trial Court’s competence to hear the matter. I adopt the same view herein and I, equally dismiss this appeal and abide by the order of costs awarded in the main judgment.

Appearances

Adetayo Adeyemo (holding the brief of A. U. Musapha)For Appellant

AND

A. O. DadaFor Respondent