MR. BABAGBEMIGA A.O. OLAIYA v. ENGR. ADETOKUNBO O.A. COKER (2014)

MR. BABAGBEMIGA A.O. OLAIYA v. ENGR. ADETOKUNBO O.A. COKER

(2014)LCN/7075(CA)

In The Court of Appeal of Nigeria

On Monday, the 31st day of March, 2014

CA/L/400/2012

RATIO

WORDS AND PHRASES: ABUSE OF COURT PROCESS

Abuse of Process of court is a term generally applied to a proceeding which is wanting in a bonafide and is, frivolous, vexatious and oppressive. It may occur when a party improperly uses judicial process to the harassment, irritation and annoyance of his opponent and to interfere with the administration of justice. The multiplicity of actions which involve the same parties and the same subject matter amount to abuse of the process of the court and a court has a duty to stop such abuse. See SEVEN UP BOTTTING CO. LTD v. ABIOLA AND SONS BOTTLING CO. LTD (1996) 7 NWLR (PT.75) 156 at 177; PAVEX INTERNATIONAL CO. LTD v. IBWA. (1994) 5 NWLR (PT.347) 685 and OKORO DUDU v. OKOROMADU (1977) 3 SC 21.

To determine whether an abuse of the process of court has occurred, the court will consider the content of the process filed in the first suit and compare them with those filed in the second one in order to ascertain whether they are aimed at achieving the same purpose. See AGWASIM v. OJOCHIE (2004) 10 NWLR (PT 882) 613.
In DINYADI v. INEC (2010) 44 NSCQR 301 at 340, the Supreme Court posited that:-
“The term “Abuse of Court Process” connotes simply the misuse of courts process and it includes acts which otherwise interfere with the course of justice. Clearly the acts include where without reasonable ground a party institutes frivolous, vexation and oppressive actions and also by instituting multiplicity of actions or i.e. seeking a favourable court to entertain a matter. It also includes depriving the court if its jurisdiction”.
Further elucidation on the issue of Abuse of Process of court is provided by the Supreme Court in SARAKI v. KOTOYE (1992) 11-12 SCNJ 2C or (1992) 9 NWLR (PT.264) 156 where it was held that:-
“It is recognised that the abuse of process may lie in both proper and 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 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 the same opponent on the some issues. See OKORODUDU v. OKOROMADU (1977) 3 SC 21; OYEGBOLA v. ESSO WEST AFRICAN INC. (1966) 1 All NLR 170; thus the multiplicity of actions on the same matter between the same parties even where there exists o right to bring the action is regarded as on abuse. The abuse lies in the multiplicity and manner of the exercise of right, perse. The abuse consists in the intention purpose and aim of the person exercising the right to harass, irritate and annoy the adversary and interfere with the administration of justice, such as instituting different actions between the same parties simultaneously in different courts, even though on different grounds”
Similarly, it was held in OKAFOR v. A.G ANAMBRA STATE (1991) 6 NWLR (PT 200) 659 that:-
“It is the law that multiplicity of actions on the same matter constitute an abuse of process of the court. But this is so only where the action is between the same parties with respect to the same subject matter”
See also IKINNE v. EDJERODE (2001)12 SC (PT.11) 94.
In the main, the abuse of court process would occur in one of the following situations:-
(a) Where the parties, subject matter and issue in a previous and a later suit are the same.
(b) Where different actions are filed in different or the same court simultaneously in respect to the same right and subject matter.
(c) Where a party litigates again on the same issue which has already been litigated upon between him and the same person by facts on which a decision has, already been reached, and
(d) where the proceedings is wanting in bonafide, and frivolous, vexation, oppressive or amounts abuse of legal procedure or improper legal process.
See U.B.N Ltd v. EDAMKUE (2004) 4 NWLR (PT.863) 221; UKACHUKWU v. UBA (2005) 18 NWLR (PT.956) 1 and JIMOH v. STARCO (NIG) LTD (1998) 7 NWLR (PT.558) 523. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

WHETHER A LEAVE OF COURT MUST BE SOUGHT WHERE A NOTICE OF APPEAL CONTAINS GROUNDS OF FACTS OR MIXED LAW AND FACTS

A notice of appeal containing grounds of facts or mixed law and facts requires the leave of court being sought and obtained before it can be filed. Thus a ground of appeal for which such leave is required, if filed without such leave being obtained is incompetent and if the virus of incompetence affects all the grounds of appeal filed by the appellant, the notice of appeal is rendered a nullity and the appeal stands dismissed but if even one ground survives, it is enough to sustain the appeal. See FIRST BANK OF NIG (LTD) v. NJOKU (1995) 3 NWLR (PT 384) 457; NSIRIM v. NSIRIM (supra) and KANO ILE V. GLOEDE AND HOFF LTD (2005) 22 NSCQR 3440.

I have carefully perused the three grounds of appeal filed by the appellant together with their particulars as contained at pages 178 to 181 of the Record and I cannot but agree with the Appellant’s counsel that the said three grounds of appeal which I had also earlier reproduced in this judgment are nothing but grounds of law especially going by the classification given by the Supreme Court in NWADIKE v. IBEKWE (1987) 4 NWLR (pt 67) 718 at 744-745 on when a ground of appeal is that of law or facts of mixed law and facts.
In the instant case, the appellants complaint is that the learned trial judge wrongly relied on section 6(6) of the 1999 constitution and also erred in her evaluation of the documents and process before the court as well as failed to consider counsel’s argument in coming to a conclusion that the suit No. ID/914/97 and ID/944/2007 are not the same and as such there was no abuse of process. In my view, the three grounds aforesaid are grounds of law and I so hold.
On the competence and incompleteness of the Record of Appeal. The fact is not challenged that the Registrar of the lower court invited counsel for both parties for settlement of records and that the Respondents counsel failed to honour the invitation. It is also not challenged that the Record of Appeal was compiled and transmitted by the Registrar of the lower court within sixty days after filing of the notice of appeal. This is evidenced in the Registrar’s statement as well as pages 183 and 185 of the Record.
It is also trite that once an appellant has deposited a money for the making up and forwarding of the Record of Appeal, he has performed his duty. The responsibility of the Registrar becomes stronger to satisfy the requirements of the Rules, moreso that a meeting for the settlement of records was summoned by him and attended by the parties. See AKAIDE V. THE STATE (1995) 8 NWLR (PT 468) 525.

Furthermore Order 8 rule 6 provides that:
“Where the Respondent considers that there are additional records which may be necessary in disposing of the appeal, he shall be at liberty. Within 15 days of the service on him of the records, to compile and transmit to the court such records to be known as the additional records of appeal”
In this case, the Respondent after noticing whatever defect or omission in the record served on him on 4-6-2012 did nothing to challenge or take necessary action to compile additional record, but waited patiently till 31-7-2012 to raise it by way of preliminary objection.
This no doubt is in clear breach of the rules of this court and having so gone contrary to the rules, he cannot be heard to complain of any anomaly in the record of appeal. Equity it is said helps the vigilant and not the indolent, and he that comes to equity must do so with clean hands.
It is also the law that the parties and even the court is bound by the record before it unless it is successfully challenged by the Respondent by way of affidavit evidence. Where therefore as in this case the party did not formally challenge the record of the appeal by way of filing an affidavit, the said record remains binding on the parties and the court.
See SOMMER V. FEDERAL HOUSING AUTHORITY (1992)1 NWLR (PT 219)548 at 557-558; and NWORA V. NWABUNZE (2011) 48 NSCQR 256. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

MR. BABAGBEMIGA A.O. OLAIYA Appellant(s)

AND

ENGR. ADETOKUNBO O.A. COKER Respondent(s)

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): The parties in this appeal are descendants of one Phillip Taiwo Coker. The appellant is the great grandson of the said Phillip Taiwo Coker while the Respondent is his grand Son.
During his life time, Phillip Taiwo Coker was seised of 84 acres of land and upon his demise, he was survived by two children namely, Mrs Ayodele Akpata, the grandmother of the appellant and Chief Adeniyi Coker, the father of the Respondent.
By the writ of summon filed in 1997 and amended statement of claim dated 5-2-2007 one Alhaji Lookman Adele Gafaru and five others instituted an action against the Appellant and the Respondent herein as Defendants. In paragraph 47 of the said amended statement of the claimants claimed as follows:-
(1) A declaration that the claimant are owners/holders and persons deemed entitled to the Statutory Right of Occupancy over and in respect of all that piece or parcel of land situate, lying and being at Oke Shasha
(Orisinbare) near Idimu Village in the Alimosho Local Government Area of Lagos State and more particularly described and delineated on plan No. KCO/902/MISC/008/2005/LA dated 25th October, 2005 prepared by K.C. OSHIN, licensed Surveyor extracted from plan No. CK/LS/347A/80 dated 22nd July, 1980 drawn by Chief Abolade O. Coker, Licensed Surveyor.
(2) A declaration that the purported terms of settlement dated 25th April, 1988 purportedly signed on behalf of Claimants in suit No, ID/709/84 J.O. Odeyale & others (v) Omotayo Alabi Olaiya & Another was/is without the consent of the Claimants family and it is therefore null and void and of no effect whatsoever.
(3) A declaration that the Defendants all and singular by themselves, servants, agents privies, assigns howsoever called have no interest, title or right in the said piece or parcel of land mentioned in one (1) above.
(4) The sum of N10, 000,000.00 (Ten million) as damages for the trespass committed by the Defendants, their servants, agent, privies or otherwise howsoever on the Claimants land aforesaid.
(5) An Order or perpetual Injunction restraining the Defendants, their servants or agent privies or assigns from entering or further trespassing or otherwise dealing with the said piece or parcel of land situate, lying and being at Oke Shasha (Orisunbare) near Idimu Village in Alimosho Local Government Area of Lagos State of Nigeria.
The suit No. is ID/914/97.
Records show that by an amended statement of defence dated 14-2-2007 the appellant and Respondent sought to defend the suit together. (See pages 81-87 of the Record).
This was however not to be as the 1st defendant subsequently filed a separate statement of defence dated 6th October 1999. The second statement of defence is dated 20th December 2011 and it is headed “Amended statement of defence of 2nd – 4th Defendants”, indicating that two other persons were tater joined as 3rd and 4th defendants in the suit.
However, by a writ of summons dated 27-7-2007 and an amended statement of Claim dated 5-11-2007, the Respondent as a Claimant in the lower court sued the Appellant as defendant wherein he claimed as per paragraph 83(a-c) of the said Amended statement of claim as follows:-
(A) A declaration that 46 acres of the Survey drawn by the licensed Surveyor as contained in the survey plan of Mr. Akin A.A. Williams signed and dated 29th June, 1982 is the Claimants Land.
(B) An order of perpetual injunction restraining the defendant or his agents, assigns, heir and anybody claiming through him from trespassing on the Claimants land surveyed by Mr. Akin A.A. Williams Signed and dated 29th June 1982.
(C) An order of this honourable court directing the defendant to pay the sum of N5, 000,000 (five million naira) as general damages to the claimant for trespass to the (sic) land”.
The Appellant as defendant subsequently filed a motion on notice dated 16-12-2011 wherein he sought the following reliefs:-
“An order striking out this suit on the ground that this Honourable Court lacks the competence to hear or entertain same”
Nine grounds were listed as justifying the application and it was supported by a 10 paragraph affidavit to which were attached exhibits BOA1 to BOA4.
The Respondent reacted by filing a counter affidavit of 19 paragraphs with Exhibits BOA1 to BOA4 attached therewith.
The Appellant also filed a reply to counter affidavit with three paragraphs and many sub-paragraphs. Written addresses were also filed, exchanged and eventually adopted.
In a ruling delivered on the 23-3-2012 the learned trial judge dismissed the application.
The appellant was dissatisfied with the outcome of the said ruling, and consequently filed a notice of appeal dated 2-4-2012.
The three grounds of appeal contained therein and shorn of their particulars read as follows:-
GROUND ONE
The learned Judge of the lower Court erred in law when she held that she can assume jurisdiction over Respondent/Claimant’s suit by virtue of Section 6(6)a of the Constitution of the Federal Republic of Nigeria, 1999, even though Suit No. ID/914/97 is subsisting.
GROUND TWO
The court below erred in Law when it held that the issues in dispute in suit No. ID/944/07 instituted by the Respondent/claimant are TRESPASS and SELLING of the land in dispute.
GROUND THREE
The learned trial judge erred in law when she held that the filing of the suit (ID/944/07) despite the pendency and or subsistence of Suit No. ID/914/97 is not an abuse of the process.
Briefs of argument were subsequently filed and served in accordance with the Relevant Rules of this court.
At the hearing of the Appeal on the 13th day of February 2014, parties duly adopted and relied on their respective briefs of argument.
The appellant’s brief was filed on the 12-7-2012 and his reply brief was dated and filed on 14-8-2012.
The Respondent’s brief is dated 31-7-2012 but filed on 1-8-2012. In the Appellant’s brief of argument two issues were formulated for determination as follows:-
(i) Whether or not the learned trial judge was right to invoke the provisions of Section 6(6) a of the constitution of the Federal Republic of Nigeria 1999, in assuming jurisdiction over Respondent’s suit, despite acknowledging the pendency of earlier suit No. ID/914/97, in which the radical Title of late Phillip Taiwo Coker, is being challenged through his grand and great grand children, the Respondent and Appellant herein, (GROUNDS 1 and 2).
(ii) Whether, considering subject matter of suit No. ID/944/2007 (between the Respondent/ Claimant and Appellant/ Defendant) vis-Ã -vis suit No. ID/914/1997 (Between Falade Ojisu family as claimant, against both Appellant and Respondent (1st and 2nd Defendants), the learned trial judge was right to hold that there is no abuse of court process in the institution of the suit No. ID/944/07 (GROUND 3).
In the Respondents brief two issues were also distilled for determination as follows:-
(1) Was the learned trial judge right to invoke the provision of section 6(6) of the 1979 (sic) constitution of the federation of Nigeria to assume jurisdiction to hear the suit when the subject matter of the suit were within the competence of the court? (Ground 1).
(2) Can suit No. ID/944/2007 he on abuse of the process of the court because suit No. ID/9174/97 which has different parties, different subject matter and different tissues pending in court (Ground 2 and 3).
However the Respondent had earlier filed a notice of preliminary objection dated 31-7-2012 wherein he mainly challenged the competence of the notice of appeal on the basis that the grounds of Appeal contained grounds of mixed law and fact for which leave of the court ought to have been obtained before the Notice of Appeal was filed.
Secondly, the Record of Appeal is incomplete, disorganised and some relevant materials omitted or left out deliberately.
His arguments in support of the preliminary objection is contained at pages 5-12 of the Respondents brief.
The appellant’s response to the preliminary objection is in his reply brief, particularly at pages 5 to 13 therein.
For the Respondent, reference was made to section 241 of the 1999 constitution to argue that once an appeal is not as of right as provided therein, then an appellant can only exercise such right to appeal if he has obtained leave of court to do so. He added that it is not the title or appellation that is given to the notice of appeal that ipso facto make it a ground of law. In other to determine whether the grounds of appeal are grounds of law or facts or mixed Law and facts, the particulars of the ground along with the grounds of appeal must be examined to reveal the nature of the ground.
Reference was made to the following cases:-
EHINLAWO v. OKE (2008) 6-7 SC (PT 2) 123 at 147; ABUBAKAR V. WAZIRI (2008) 6-7 SC (PT 2) 82 at 115-116; NNSC V. ESTABLISHMENT SIMA OF VADUZ (1990) 7 NWLR (PT 164) 526 at 536-537; OGUNLEYE V. MILITARY ADMINISTRATOR OF OYO STATE (1996) 9 NWLR (PT 471) 176 at 193; OBATOYINBO V. OSHATOBA (1996) 5 NWLR (PT 450) 531 at 549; TILBURY CONSTRUCTION CO. LTD v. OGUNNIYI (1988) 2 NWLR (PT 74) 64 at 70; FAITH ENGINEERING (ENT) LTD v. BAS F (NIG) LTD (2010) SC (PT 2) 186 at 202; and ADERIGBE V. ABIDOYE (2009) 4-5 SC (PT 3) 123.
He submitted that the three grounds of appeal filed by the appellant are of facts and at best mixed law and facts in which leave must be sought and obtained and where leave was not obtained before the appeal was filed; it renders it incompetent and liable to be struck out. See CENTRAL BANK OF NIGERIA V. OKOJIE (2002) 3 SC 99.
On the defective record of appeal, he submitted that it is the duty of the appellant to make available the record of appeal for the use of the court and he is obliged to place before the court all relevant materials. See UWECHIE V. OBI (1973) 2 SC 1; OBIAMALU V. NWOSU (1973) 2 SC 15 and NITEL LTD V. IKPI (2007) 8 NWLR (PT 1035) 96 at 108; ADESINA V. ADENIRAN (2002) 2 NWLR (PT 762) 84 at 92; EKPEMUPOLO V. EDREMUDA (2009) 8 NWLR (PT 1142) 166 at 196.
He submitted that the record before the court is incomplete and the court cannot hear the appeal on an incomplete record. See EKPEMUPOLO V. EDREMUDA (2009) 8 NWLR (PT 1142) 166 at 195 and NWANA V. FCDA II NWLR (PT 1044) 59 at 78-79; AULT AND WIBORD (NIG) LTD V. NIBEL INDUSTRIES LTD (2010) 11 NWLR (PT 1120) 486.
He added that it is the duty of the appellant to ensure that there is a proper compilation of record of appeal. See ADERIGBE V. ABIDOYE (2009) 4-5 SC 123 at 135-136.
Reacting to the preliminary objection, it was submitted for the appellant that since the classification of a ground of appeal being a ground of law or of facts or law and facts is tedious, the Supreme Court in the case of NWADIKE V. IBEKWE (1987) 4 NWLR (PT 67) 718 provided the classification of ERROR OF LAW as follows:-
(i) “It is an error of law if the adjudicating tribunal took into account some wrong criteria in reaching its conclusion.
(ii) Several issues that can be raised on legal interpretation of Deeds, documents, terms of arts and inferences drawn therefrom are grounds of law,
(iii) Where a ground deals merely with a matter of inference, even if it be inference of facts, a ground framed from such is a ground of law.
(iv) When a tribunal states a law on a point wrongly, it commits an error of law.
(v) Where the issue is that there was no evidence or no admissible evidence upon which a finding or decision was based, same is regarded as ground of law.
(vi) If a judge considers matters which are not before him and relies on them for exercise of his discretion, he will be exercising same on wrong principles and this will be a question of law”.
He then refer to the finding of the lower court at page 174 of the record where the said the lower court made erroneous inferences in suit No. ID/914/97 and ID/944/2007 and this necessitated grounds one and two of the notice of Appeal in which ground one also complained about application of the provisions of section 6(6) of the 1999 constitution.
As per ground 3, he argued that the complaint is that the lower court took into account wrong principles of law in coming to a conclusion that the filing of suit No. ID/944/2007 while suit No. ID/914/97 was still pending, is not an abuse of court process.
He added that grounds 1, 2 and 3 of the notice of Appeal read with the particulars do not call for the perception or evaluation of evidence but an invitation for the learned trial judge to read an averment contained in both suit No. ID/914/97 and ID/944/2007 as well as prayers endorsed thereon.
He concluded that since the grounds of appeal deals with the jurisdictional competence of the lower court to hear the suit when a similar one was pending, the appeal lies as of right without need for leave of appeal.
On the competence of the Record of Appeal, he referred to Order 8 Rules 1, 2(a) 3, 6 and 7 of the Court of Appeal Rules 2011 to submit that the registrar of the lower court complied with the said order 8 and also invited both counsel for the parties for settlement of Record but Respondents counsel failed to attend the meeting. The Registrar also compiled and transmitted the Record within the 60 days allowed by the rules.
Also relying on section 150 (1) and (2) of the Evidence Act he submitted that there is a presumption of regularity in the manner and steps taken by the Registrar. See OYAKHIRE V. STATE (2006) 7 SC (PT 11) 60 at 75.
On the other hand, he submitted that the Respondent is obliged under order 8 Rule 6 of the Rules to compile those missing records which in his opinion may be necessary in disposing of the appeal and since he failed to do so, he is stopped from complaining about the correctness of the record- more so that there is no miscarriage of justice.
He further pointed out that all the documents and processes necessary for the determination of this appeal are in the record that was compiled and transmitted by the Registrar within 60 days.
As regards the competence of the notice of appeal which three grounds contained therein are alleged to be mixed law and facts for which leave ought to be sought and obtained.
It is the law that where all the grounds of appeal are incompetent, the appeal is incompetent. AGBAKA V. AMADI (1998) 11 NWLR (PT 572) 16; BUZU v. GARABI (2000) 13 NWLR (PT 684) 228. NSIRIM v. NSIRIM (1990) 3 NWLR (PT 138) 285.

What is more, the relevant processes required for the resolution of the narrow issue whether the filing of suit No. ID/944/2007 while suit No. ID/914/17 is still pending are available in the record in which case there can be no apprehension of miscarriage of justice.
On the whole thereof, the notice of preliminary objection filed by the Respondent is hereby overruled and dismissed.
On the main appeal, the two issues formulated in the Respondents brief of argument are similar in content with the appellant’s two issues though they are differently couched. I will however adopt the two issues formulated in the appellant’s brief in the consideration of this appeal.
ISSUE ONE
Dwelling on this issue, learned counsel for the appellant submitted that the learned trial judge was wrong to have invoked the provision of section 6(6) of the 1999 constitution in assuming jurisdiction to hear the case when the issue whether or not the lower court had the judicial powers to decide whether or not it has the jurisdiction was not the basis of the appellant’s motion on notice dated 16th December 2011, but a challenge to the competence of suit No. ID/944/07 instituted by the Respondent.
He referred to the judgment of the lower court of page 175 of the Record to submit that in order to do justice to the hearing of the suit and the motion on notice, the court ought to first ascertain the issue of jurisdiction before the issue of judicial powers exercisable under the jurisdiction can arise because jurisdiction cannot be equated with powers.
He cited a number of authorities to contend that while jurisdiction is the right of the court to hear and determine disputes, the power of the court is the authority to make certain orders and decisions with respect to the matter before the court as per section 6(6) of the 1999 constitution. The authorities are AJOMALE v. YADUAT (ND1) 1991. 1 NSCC (VOL 22) (pt 1) 565 at 569, A.G. ANAMBRA STATE V. A. G. OF THE FEDERAL REPUBLIC OF NIGERIA (2005) 9 NWLR (PT 931) 527 at 645.
He referred to the appellant’s motion on notice dated 16/12/2011 to say that the competence of the lower court in entertaining the matter was being questioned on following grounds:-
(i) That the claimants action and or suit is premature in view of the pendency of the earlier suit No. ID/914/97 between Falade Ojisu family against both the claimant and defendants herein.
(ii) That the issue in controversy in the present suit No. ID/944/2007 is title to 46 acres port of the land comprised in and disputed in suit No. ID/914/97 aforesaid.
(iii) That the claimant right to action or assertion of ownership to the 46 acres of land or any part therefore would accrue and or crystallize only after a decision have been delivered against the Folade Ojisu family aforesaid and or suit No. ID/914/97 dismissed.
(iv) That suit No. ID/944/07 is speculative in nature and substance to the extent that the court does not have the competence to make any declaration of little and or any order for that matter in favour of the claimant, while suit No. ID/914/97 (Involving a larger portion of land which encompasses Coker Estate land originally owned by Phillip Taiwo Coker (late) is pending in court.
(v) That Suit No. ID/944/07 is an abuse of the processes of the court and its aim is to embarrass and oppress the applicant as well as the court, whereof the claimant is urging the court to exercise its adjudicatory powers “in futuro” urging it to make a declaration of title upon a right that has not accrued in fact and law.
It was his further submission that in order to entertain suit No. ID/944/2007 there is need to scrutinize the statements of claim in the two suits in question, that is ID/914/97 and ID/944/2007 and make a comparison.
He added that such comparison will reveal that the issue of the title to the same parcel of land is common to both. Therefore, he argues, the lower court failed to compare, properly, the originating processes highlighted above and thereby came to a wrong conclusion by stating that the issue for determination in suit No. ID/944/2007 is for act of trespass and selling of some portion out of 46 acres of land and this has occasioned miscarriage of justice against the appellant.
Reference was made to the case of ISAAC OBIUWEUBI V. CENTRAL BANK OF NIGERIA (2011) 2-3 SC (PT 1) 46 at 73 on the way to determine whether a court has jurisdiction to hear a matter which includes:-
(a) Whether the subject matter of the case is within the court’s jurisdiction.
(b) Whether there is any feature in the case which prevents the court from exercising its jurisdiction.
(c) Whether the case comes before the court initiated by the due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
He added that the 2nd principle was breached by the Respondent who did not wait for the outcome of an earlier suit No. ID/914/97 before filing suit No. ID/944/2007.
He then urged that this issue be resolved in favour of the appellant because the lower court lacks the competence to entertain suit No. ID/944/2007.
Responding on this issue, learned counsel for the Respondent referred to the criteria laid down in MADUKOLU V. NKEMDILIM (1962) 1 All NLR 587 on when a court is competent.
He however noted that the appellant did not in any part of his brief or argument address the issue of the competence of the court, rather his complaint was that the learned trial judge wrongly invoked the provisions of section 6(6) of the 1999 constitution.
He further submitted that it is trite law that it is the endorsement of the claims of the plaintiff on the writ of summons that determines whether the court has jurisdiction or not. See YALAJU AMAYE V. A.R.E.C LTD (1990) 4 NWLR (PT 142) 422 and KINFOLARIN V. AKINNOLA (1994) 4 SCNJ 30.
He referred to various paragraphs of the Respondent’s amended statement of claim to submit that the averment therein show that there is serious dispute between the Respondent and the appellant which only the court can resolve as it relate to the 46 acres of land and this is confirmed by numerous issues raised in the appellant’s statement of defence and counterclaim.
He further submitted that the issues in suit No. ID/914/97 has nothing to do with the issues in suit No. ID/944/2007, as can be shown in the Respondents amended statement of claim. He also referred to the Respondents counter affidavit filed in opposition to the appellant’s motion and which depositions therein were not challenged by the appellant in his reply affidavit, and as such he is deemed to have accepted them as true and established. Citing AJOMALE V. JADUAT (NO 2) (1991) 5 NWLR (PT 191) 266; LONG JOHN v. BLACK (1998)5 SCNJ 68 at 88. HENRY STEPHENS (NIG) LTD V. S.A. YAKUBU (NIG) LTD (2009) 5-6, SC (PT 1) 60 at 66; ALAGBE V. ABIMBOLA (1977) 2 SC 28; AGBAJE V. IBRU SEA FOOD LTD (1977) 5 SC (reprint) 32; EGBUNA v. EGBUNA (1989) 2 NWLR (PT 106) 773.
Learned counsel also submitted that if the circumstances of suit No. ID/914/97 and ID/944/2007 are placed side by side, the cause of action in both suits are not the same. In Exhibit BOA1 attached to appellant’s motion, the claimants therein are seeking to set aside the judgment of the court which was based on the terms of Settlement filed by the parties in suit No. ID/709/1984.Besides, he argues; it is not automatic that the claimants in suit No. ID/914/97 will succeed in their action as they are required by law to prove their claim.
He added that it is not possible for the Respondent to stay quiet waiting for the outcome of the suit while the appellant is busy selling the land claimed by the Respondent as his own portion of the family land. He therefore has the right to protect his interest in the land. A.G. ANAMBRA STATE V. EBOH (1992) 1 NWLR (PT 218) 491 at 509 and 510.Thus having fulfilled all the conditions precedent to vest jurisdiction in the court, it is proper for the court to assume jurisdiction and invoke the provisions of section 6(6) of the 1999 constitution to hear the dispute. He relied on UNION BANK OF NIGERIA PLC V. EDIONSERI (1988) 2 NWLR (PT 74) 93 at 105 and 106 and SHELL V. NWAKA (2003) 1 SC (PT 11) 127 at 133-133 to submit that the trial court has jurisdiction to invoke 6(6) of the 1999 constitution which vest judicial powers in the court to hear the suit No. ID/944/2007 filed by the Respondent.
The appellant submission on this issue in his reply brief of argument are well noted but suffice to state that they are substantially a repeat of his submission in the appellant’s brief.
This is not allowed because a reply brief is meant to do nothing else than to respond to new issues raised in the Respondent’s brief of argument. I will however as the need arises, bend backwards to extract or sift the wheat from the chaff.Now the portion of the judgment of the lower court being complaint about is at page 175 of the record and it reads thus:-
I have carefully gone through the Writ of Summons and Statement of Claim-suit NO: ID/914/97 and ID/944/07 and also all the Affidavit evidence on record together with all the Exhibits attached to the application dated the 16th day December, 2011, I am of the view that this court can invoke the provision of Section 6(6) of the 1999 Constitution of the Federation of Nigeria in assuming jurisdiction of suit NO:- ID/944/07 because issues to be determined in the suit is within the competence of this Court and I so hold even with the pendency of suit NO:ID/914/97.The appellant’s complaint is that the learned trial judge ought not to have invoked the provisions of section 6(6) of the 1999 constitution in assuming jurisdiction in the case when the issue in the appellant’s application was as to the competence of suit No. ID/944/2007 filed by the Respondent seeking a declaration of title to 45 acres of land part of the 88. 20 acres of land in dispute in an earlier pending suit No. ID/914/97 in which the parties to this appeal are 1st and 2nd defendants respectively. The finding of the lower court in that regard had been earlier reproduced in this judgment.Learned counsel had interestingly enough picked on that particular portion of the ruling of the lower court without regard to the whole gamut of the reasoning and conclusion on the issue in contention.The learned trial judge had earlier in the ruling found as follows:-
It is a fundamental principle that jurisdiction is determined by the plaintiffs claim and reliefs. In other words, it is the claim before the court that has to be looked at or examined to ascertain whether or not it comes within the jurisdiction conferred on the court.
To determine jurisdiction it is the plaintiffs claim in the Writ of Summons and the averment in the Statement of Claim that determines whether or not a given cases come within the jurisdiction conferred on a court.
The moment the relief sought comes within the jurisdiction of the Court as portrayed by the fads of relief, the court then has jurisdiction to do so.
See case of:-
AMAECHI V. INEC (2007) 9 NWLR (PART 1040) PAGE 504 AT PAGES 533-534 PARAGS. E.A.
In the case of OBI v. INEC (2007) 11 NWLR (PART 1046) PAGE 436 AT PAGE 520 PARAGS. F-H it was held that “a court is said to be competent or possess jurisdiction to entertain and determine a matter placed before it if:-
(a) It is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other.
(b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction.
(c) The case comes before the Court initiated by the due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction”
All the above-mentioned condition must co-exist for the court to be vested and clothe with proper competence and jurisdiction.
In the instant case in suit NO: ID/944/97 can it be said that the subject matter is within its jurisdiction and that there is no feature in the aforesaid case which prevents the court from exercising its jurisdiction.
(b) Can it also be said that the pendency of suit NO: ID/914/97 is a feature that can prevent the court from exercising its jurisdiction over suit NO: ID/944/07.
The issue in suit NO: ID/914/97 before Hon. Justice D.T Okwuobi are quite different from the issues in the present suit- ID/944/07 before the court in that the parties in suit NO: ID/944/07 are not the same parties in suit NO: ID/914/97. The issue for determination in the present suit No: ID/944/07 is for acts of trespass and selling of some portion of 46 acres of land which belonged to the grandfather and great grandfather of both Claimant/ Respondent and the Defendant/ Applicant herein and which 46 acres of land is alleged to belong to the Claimant/Respondent.
The issue for determination in the suit NO: ID/914/94 before Honouroble Justice Okwuobi is for the determination of the land situate, lying and being at Oke Shasha (Orisumbare) near Idimu village in Alimosho Local Govt Area, Lagos State which belonged to the grandfather and great grandfather- Chief Phillip Taiwo Coker of both the Claimant and Defendant in suit NO:ID/944/07 who acquired the land in 1924 pursuant to a judgment against the Claimants ancestor in suit No:56/1919: FALADE V SANBE is different from the present suit in that the claimants in aforesaid suit NO:ID/914/97 before Hon. Justice D. T. Okuwobi are not parties in the present suit NO: ID/944/07 – the parties are Engr Adetokunbo Adeniyi Oluwole Coker is the Claimant while Mr. Bababemiga Olatokunboh Alfred Olaiya is the Defendant.From the above findings of the Lower Court, it is my humble view that due regard was paid to the issues raised by the parties in their written address on the motion on notice filed by the appellant on 16-12-2011. For instance, the appellant in his written address in support of his motion in the Lower Court raised the issue of jurisdiction as shown in pages 70 and 71 of the record.
The same goes for the Respondent who raised it as his third issue in the written address in opposition to the appellant’s motion on notice.
The learned trial judge duly considered the issues in contention before arriving at his conclusion that the suit NO: ID/944/07 is competent and that confers on the court the jurisdiction to hear it.
Jurisdiction and judicial power are interwoven, hence it is only when a court has the jurisdiction over a matter that it can therefore proceed to exercise its judicial powers as conferred by the constitution or statutes.
See A.G LAGOS STATE V. HON. JUSTICE DOSUNMU (1989) SCNJ (PT.11) 134 at 172-173 the Supreme Court held that:-
“if a court has no jurisdiction, it cannot exercise the powers granted it by the constitution or law to enable it exercise the jurisdiction. If a court lacks the jurisdiction to entertain a matter, whatever merit the matter may have under other laws cannot be enquired into. Indeed the court that has no jurisdiction to entertain such a matter has no jurisdiction to inquire into it. The only jurisdiction it can exercise is jurisdiction to enquire into the question whether it has jurisdiction to hear the case. See BARCLAYS BANK OF NIGERIA LTD v. CENTRAL BANK OF NIGERIA (1976) 1 NLR 409.

The problem here is that the learned trial judge in making a finding whether the matter before him is competent and thus confers him with the jurisdiction to hear it made reference to section 6(6) of the constitution as one of the sources of the power and jurisdiction to do so. This however was after having made a finding that the suit before the court was competent.

I agree and indeed learned counsel for the Respondent also conceded that section 6(6) of the 1999 constitution does not confer jurisdiction on the court but power on the court.

I am however of the view that it is wrong use of word or section of the constitution by the court in asserting its power to assume jurisdiction on a matter it has after due scrutiny found that it has satisfied the test of competence. It however does not in anyway cause miscarriage of justice or alter the efficacy of the reasoning and conclusion of the Lower Court.
Comparisons were made between suit No: ID/944/07 and ID/914/07 with regards to the parties involved, the issues in contention and the subject matter of dispute with clear reliance on the writ of summon and statements of claim-and it was found that they are not the same. This was also a subject of attack by the Appellant on the ground that the findings are erroneous having regard to the similarities in the two claims and the fact that both parties in this appeal are defendants in the earlier suit.
For purposes of clarity and appreciation, therein below reproduce the claim as reflected in the two respective statements of claim.
In suit NO: ID/914/97 it was claimed as follows:-
(1) A declaration that the Claimants are the owners/holders and persons deemed entitled to statutory Right of Occupancy over and in respect of all that piece of parcel of land situate, lying and being at Oke Shasha (Orisinbars) of Lagos State and more particularly described and delineated on Plan No. KCO/902/MISC/008/2005/LA dated 25th October, 2005 prepared by K. C. OSHIN, licensed surveyor extracted from plan No.CK/LS/347A/80 dated 22nd July, 1980 drawn by Chief Abolade O. Coker, Licensed Surveyor.
(2) Declaration that the purported terms of settlement dated 25th April, 7988 purportedly signed on behalf of Claimants in suit No.ID/709/84 J. O. Odeyale & others v. Omotayo Alabi Olaiya & Another was/is without the consent of the Claimants family and it is therefore null and void and of no effect whatsoever.
(3) A declaration that the Defendant all and singular by themselves, servants, agents privies, assign howsoever called have no interest, title or right in the said piece or parcel of land mentioned in one (1) above
(4) The sum of N10,000,000.00 (Ten million) as damages for the trespass committed by the Defendants, their servants, agents, privies, or otherwise howsoever on the Claimant land aforesaid.
(5) An Order of perpetual Injunction restraining the Defendants, their servants or agents privies or assigns from entering or further trespassing or otherwise dealing with the said piece or parcel of land situate, lying and being at Oke Shasha (Orisunbare) near Idimu Village in Alimosho Local Government Area of Lagos State of Nigeria
For ID/944/07, the claim as per paragraph 83 of the amended Statement of Claim dated 5-11-2007 read thus:-
(A) A Declaration that the 46 acres of the survey drawn by licensed surveyor as contained in the survey plan of Mr. Akin A. A. Williams signed and dated 29th June, 1982 is the claimants land.
(B) An order of perpetual injunction restraining the defendant or his agents, assigns, heir and anybody claiming through him from trespassing on the claimant’s land surveyed by Mr. Akin A.A Williams signed and dated 29th June, 1982.
(C) An order of this honourable court directing the defendant to pay the sum of N5, 000,000:00 (Five Million Naira) as general damages to the claimant for trespass of the his land.
I have carefully and meticulously studied the two claims as reproduced above and I do not seem to observe any similarity between the claims as itemised therein. While in ID/944/07 the main claim is for declaration that the claimants are the owners/holders and person deemed entitled to statutory rights of occupancy over all that parcel of land lying at Oke Shasha (Orisumbare) near Idimu Village, in Alimosho Local Government Area, of Lagos State.
The claim in ID/944/2007 is for Declaration that the 46 acres of the survey drawn by the licensed Surveyor as contained in the survey plan of Akin A. A. Williams signed and dated 29th June 1982 is the Claimants land.While the claim in ID/914/97 refers mainly to all that piece or parcel of land situate, lying and being at Oke Shasha (Orisumbare). ID/944/2007 only referred to 45 acres of land as shown in a survey plan.
The appellant had in his brief and reply brief hammered constantly on an expanse of land of about 88.20 acres as the land referred to in suit No.ID/914/97, unfortunately it is not so stated in the claims and it cannot be imputed through the argument of the counsel. But granted that it has been so stated, it would not have changed the scenario given the fact that a party claiming for a portion of land measuring 88.20 and another claiming part of the same land measuring 46 acres cannot be said to be having a conclusive similar claim and worse still in this case where the claimants in ID/914/07 have nothing to do with suit No. ID/944/2007
Also claim No. 2 in ID/914/97 which seeks a declaration that a purported term of settlement made without consent of the Claimants family be declared null and void renders it an unwanted bed fellow with ID/944/2007 because such claim does not exist therein.
In UTUEDOR UTIH & ORS v. JACOB ONOYIVWE & ORS (1990) 1 SCNJ 25 at 63 the Supreme Court gave the following guideline on when and how a court can assume jurisdiction to entertain a suit before it.
It reads:-
“First, the question whether the court can exercise jurisdiction in an action would depend on the endorsement of the claim on the Writ of Summons and the relief in the Statement of Claim, thus where the endorsement on the court of Summons and the Statement of Claim discloses a cause of action, the court unless precluded by other Statutory provisions can exercise jurisdiction”.

Consequently, from the processes above reproduced, I fail to see or notice any portion of the Respondents Claim that will afflict it with the plague of incompetence as to deprive the Lower Court of the jurisdiction to entertain it. The said suit No. ID/944/2007 stands entirely on its own and its outcome has nothing to do with that of ID/914/97 as far as the hearing and determination of the conflict between the Respondent (as Claimant) and the appellant (as defendant) in the Lower Court is concerned. The issue of likelihood of conflicting judgments from the two different courts where the two suits are being heard does not hold water because the issues and subject matters of litigation are at variance with each other in the two aforementioned suits.

The learned trial judge was therefore right in his conclusion even though he might have relied on a wrong reason. This will not make this court to set aside his findings which has been adjudged to be correct having regard to available documentary evidence. It is the correctness of a decision and not necessarily the reason for such decision of a trial judge that the appellate court will strive to uphold. See JIKANTORO v. DANTORO (2004) All FWLR 390; A.G. LEVENTIS (NIG) PLC v. AKPU (2007) WRN 1 at 27 and ODUIRWE v. OGUNBIYI (1998) 8 NWLR (PT.561) 339.

In the circumstance this issue is resolved against the appellant.
ISSUE TWO
Dwelling on the issue, learned counsel for the appellant relied on the arguments in paragraph 2.0.1 to 2.0.8 of the appellant’s brief of argument. On the meaning of Abuse of process he cited AMAEFULE v. THE STATE (1988) 2 NWLR (PT.75) 156; ATTAHIRU v. BAGUDU (1998) 3 NWLR (PT 543) 656.
He submitted that the categories of what constitutes an abuse of court processes is not enclosed, but generally the court would consider whether the multiplicity of suit is between the same parties and involving the same subjects matter or issues. He relied on CHIEF VICTOR UMEH v. PROF. MAURICE IWU (2008) 2-3 SC (PT.1)135 at 152 and SARAKI v. KOTOYE (1992) 9 NWLR (PT.264) 156 at 188.
He added that a look at the endorsement on the originating process in both suit No.ID/914/97 and ID/944/2007 will show the following points.
(a) That suit No.ID/914/97 was filed earlier in time by accredited representatives of FALADE OJISU FAMILY, sometime in 1997 against the parties to this appeal.
(b)That suit No. ID/944/2007 was filed by the Respondent/claimant, later in time, against the appellant/defendant.
(c) That both parties in suit No.ID/944/2007 aforesaid are the 1st and 2nd defendants in suit No. ID/914/97 above.
(d)That the subject matter of suit No. ID/914/97 aforesaid, is dispute over title to 88.20 acres of land at Oke-Shaha Alimosho Local Government Area, Lagos State, otherwise known as Coker Estate, between the Falade Ojisu Family and the parties to this appeal (as grand and great grand children of late Phillip Taiwo Coker).
(e)That the parties to this appeal filed a joint amended statement of defence to suit No.ID/914/97 aforesaid at pages 81-87 of the record of appeal.
He then referred to the finding of the Lower Court at page 176 of the Record to submit that even though the Claimant in Suit No.ID/914/97 are not involved in the present suit but where as in this case the parties herein are also parties to that suit with respect to 88.20 acres of land subject of suit No.ID/914/97, the institution of suit No. ID/944/2007 by the Respondent during the pendency of the former suit constitutes an abuse of process of court. He cited the case of ACB PLC v. NWAIGWE (2011) 1-25 C (PT 11) 67 at 79-80.
Learned counsel further submitted that the Lower Court ignored the salient principles guiding courts which have been firmly established by various authorities to assume jurisdiction and eventually came to a wrong conclusion on the face of the endorsement on the original process in both suit.He submitted that the suit No.ID/944/2007 is both premature and pre-emptive of whatever decision to be reached by the court in suit No.ID/914/97 in view of the fact that the Respondent in one breathe is defending his grand fathers title to 88.20 acres along with the appellant and in another breathe, without waiting for the outcome of suit No.ID/914/97 is also claiming title to 47 acres of same parcel of land against a co-defendant.He then urged this court to resolve Issue Two in favour of the Appellant.Responding, it was submitted by learned counsel for the Respondent that for the appellant to succeed in his complaint that suit No.ID/944/2007 is an abuse of court process; the appellant must show the court that all the ingredients of what constitutes an abuse of the process of the court are present in suit No.ID/944/2007.He added that, for a suit to constitute an abuse of the process of the court inter parties, the appellant must show that:-
(a) The parties in the two suits are the same.
(b) The issue in the two suits are the same.
(c)The subject matter in the two suits are the same,
He cited the following authorities in support of this principle:- OJO v. OLAWORE (2008) 6-7-SC-(Pt.11) 54 at 66; ACB v. NWAIGWE (2011) 1-2-SC (PT.11) 67 at 88; ENYIBROS FOODS PROCESSING CO. LTD v. N.D.I.C (2007) 9 NWLR (PT.1039) 216 at 245; DINGYADI v. INEC (2010) 7-12-SC 105 at 170-171; TOMEC (NIG) LTD v. FEDERAL HOUSING AUTHORITY (2009) 12 SC (PT.111)162.Also relying on AGWASIM v. OJOCHEI (2004) 4 SC (PT.11) 160 at 167 and MOBIL PRODUCING UNLIMITED v. MONOKPO (2003) 18 NWLR (PT.832) 347 at 430-431. He submitted that before the court can determine whether an action is an abuse of court process, the second action must be compared with the first to see if they are aimed at achieving the same purpose with the first action.He pointed out that if the aforementioned principles which guide the court in determining the status of a process before the court are considered along with the statement of claim filed in suit No.ID/944/2007 with that of ID/914/97 it will be shown clearly that the issue of abuse of process does not arise because the parties, the issues and subject matter in the two suits are not the same. Therefore, the fact that the parties in ID/944/2007 are the defendants in ID/914/97 cannot make the filing of the former, an abuse of court process.He therefore concluded that the abuse of court process are not present in the Suit No.ID/944/2007 and this court should thus hold accordingly and dismiss the appeal for lack of merit. The appellant’s submission in the Reply brief on the two issues are well noted and as earlier stated, the relevant portions will be addressed in the course of this judgment as the need arises. Abuse of court process has been a subject of admonition, direction, elucidation, definition and explanation in a plethora of authorities.

In the instant case, as earlier found while considering issue one, the parties in the suit No. ID/914/97 are not the same with the parties in ID/944/2007.
The subject matter in both suits are not also the same.
In ID/914/97 the parties are listed as follows in the Writ of Summons and amended statement of claim dated 5-2-2007.
ALHAJI LOOKMAN ADELE GAFARU
(HEAD OF OJISU CHIEFTANCY FAMILY)
ALHAJI LATEEF BALOGUN
MR HAKEEM RASHEED
MR YEKEEN SAKA
CHIEF HAKEEB RAUFU
(BAALE OKE SHASHA ORISUNBARE VILLAGE)
PRINCE SARAJUDEEN ANIMASHAUN – CLAIMANT
(For themselves and as attorneys and accredited Representatives of Ojisu Chieftaincy Family)
(Formerly known Addressed and called Falade Ojisu Family)

AND

MR BABAGBEMIGA OLAIYA
TOKUNEO COKER – DEFENDANT
As regards Suit No. ID/944/2007 filed by the Respondent, the parties as shown in the Amended Statement of Claim dated 5-11-2007 are as follows:-

BETWEEN
ENG. ADETOKUNBO ADENIYI OLUWOLE COKER – CLAIMANT

AND

MR BABAGBEMIGA OLATUBOSUN ALFRED OLAIYA – DEFENDANT

It is very clear from the above that the parties in both suits are not the same at all and the only nexus connecting the two is that the appellant and Respondents in ID/944/2007 are both defendants in ID/914/97.
I had also earlier in the judgment reproduced the claims as made by the claimants in both suits. While in ID/914/97 the main claims are for:-
(1) A Declaration that the claimant are the owners/holders and persons deemed entitled to Statutory Right of Occupancy over and in respect of all that piece or parcel of land situate, lying and being at Oke Shasha (Orisunbare) near Idimu Village in the Alimosho Local Government Area, Logos and more particularly described and delineated on plan No. ICCO/902/MISE/008/2005/LA dated 25th October 2005 prepared by K. C. Oshin licensed surveyor, extracted from plan No.CK/IS/347A/80 dated 22nd July 1980, drawn by Chief Abolade O. Coker, Licensed Surveyor.
(2) A Declaration that ha purported terms of settlement dated 25th April 1988 purportedly signed on behalf of Claimants in suit No.ID/709/84. J. O. ODEYALE and others v. Omotaiyo Alabi Olaiya & another was/is without the consent al the Claimants family and it is therefore null And void and of no effect whatsoever.
(3)…
(4)…
(5)…
In suit No.ID/944/2007, the main reliefs claimed by the Respondent is for:-
“A Declaration that the 46 acres of the Survey drawn by the licensed Surveyor as contained in the Survey plan or Mr. Akin A. A. Williams Signed and dated 29th June, 1982”.
Like I earlier indicated while considering issue No. 1, and as can be gleaned from the both claims above reproduced, the parties in the two suits are not the same. The subject matter of dispute, in both suits are also not the same. While in ID/914/97 the subject matter relates to “all the piece of land Situate, Lying and being at Oke Shasha (Orisumbare) near Idimu Village in Alimosho Local Government Area; the claim in ID/944/2007 relate to 46 acres of survey claim by licensed surveyor as contained in the survey plan drown by one Mr. A. A. Williams”.
Furthermore, there is a major relief in ID/914/97 seeking a declaration that the terms of settlement entered into and signed in suit No. ID/709/84 is null and void.Learned counsel for the appellant had also argued that the 46 acres being claimed by the Respondent in ID/94/2007 is part of the 88.20 acre, subject matter of the claim in ID/914/97. Unfortunately no such size of land was stated or claimed in the said suit. But even if it was so claimed, I am of the view that it will not make the subject matter in both suits to be the same. Added to that is the issue of the parties not being the same.
In the circumstance, it is very glaring and I so hold that the filing of suit No. ID/944/2007 by the Respondent does not constitute an abuse of the process of the court. This issue is hereby resolved against the appellant.
On the whole, it is my finding that this Appeal lacks merit in its entirety and I so hold. It is accordingly dismissed.
The ruling of the Lower Court delivered on the 23rd day of March 2012 is hereby affirmed
I award N50,000 cost against the Appellant.

AMINA A. AUGIE, J.C.A.: I read in draft the lead Judgment delivered by my learned brother, Oseji, JCA, and I agree with his reasoning and conclusion. An abuse of Court process may lie in both a proper or improper use of the judicial process in litigation – see Saraki V. Kotoye (1992) 9 NWLR (Pt.264) 156 SC wherein it was held that –
“This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues – – 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. The abuse consists in the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice; such as instituting different actions simultaneously in different Courts, even though on different grounds”. It is also recognized and accepted that Courts guard their jurisdiction jealously. As Uwais, C.J.N. observed in A-G., Lagos State V. A-G., Fed. (2004) 18 NWLR (Pt.904) 1 at 89 – “It is a general principle of law that the Court will not readily deny itself jurisdiction unless the jurisdiction is expressly ousted by legislation”. In this case, the Lower Court may have based its decision on a wrong premise but there is no question at all that it was right to hold onto jurisdiction because the complaint that the said action is an abuse of process cannot stick.
The subject matter in both suits are not the same and the parties are not the same except that the Appellant and Respondent in Suit No ID/944/2007 are both Defendants in Suit No.ID/914/97. In the circumstances, also hold that the Appeal lacks merit and dismiss same. I also affirm the Ruling of the Lower Court and abide by the consequential orders in the lead judgment.

CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, SAMUEL CHUKWUDUMEBI OSEJI JCA. I agree with his Lordship’s reasoning and conclusions. In the case of ACB Plc v. Nwaigwe & Ors (2011) LPELR – 208 (SC) Onnoghen JSC observed:
“In the case of Adesokan v. Adegorolu (1991) 3 NWLR (Pt.293) 297, it was held that to institute an action during the pendency of another one claiming the same reliefs amount to abuse of process of court. It does not matter whether the matter is an appeal or not, for as long as the previous action has not been finally decided, the subsequent action constitutes an abuse of the process of the court……..It is not the existence or pendency of a previous suit that causes the problem but the institution of a fresh action between the same parties and on the same subject matter when the previous suit has not been disposed of that constitutes abuse of process of court – see Okafor v. A-G Anambra State supra.”
As well elucidated in the lead judgment, the parties in suit No ID/914/97 are not the same with the parties in ID/944/2007; the subject matter in the two suits is not the same. The filing of suit No.ID/944/2007 is consequently not an abuse of court process. I agree with my learned brother that the appeal lacks merit. I also dismiss the appeal. I abide by the consequential orders in the lead judgment including the order as to costs.

Appearances

A. O. GbadeboFor Appellant

AND

Toyin Pinheiro SAN with Ifeoluwa Adebambo Esq. and
C.A. ChanbangFor Respondent