MR. BLESSING ODOCHA v. ENGINEER (CHIEF) EBERE I. UDEAGU
(2017)LCN/10386(CA)
In The Court of Appeal of Nigeria
On Friday, the 3rd day of November, 2017
CA/OW/245M/2017(R)
RATIO
LEAVE TO APPEAL: INSTANCES WHERE LEAVE OF COURT WILL BE REQUIRED TO APPEAL AGAINST A JUDGEMENT
In BEN ANACHEBE ESQ v KINGSLEY IJEOMA & ORS (2014) 14 NWLR (Pt. 1426) Page 168, Ngwuta JSC answered this question thus:
‘Leave to appeal is required only when the Judgment sought to be appealed is not a final judgment or the appeal is on grounds other than law. If the appeal is one that can be filed as of right then if the applicant is out of time he has to seek for extension of time to appeal and not leave to appeal.’ PER TUNDE OYEBANJI AWOTOYE, J.C.A.
APPEAL OF RIGHT: WHETHER APPEALS AGAINST THE FINAL DECISIONS OF THE FEDERAL HIGH COURT OR A HIGH COURT TO THE COURT OF APPEAL ARE OF RIGHT
By virtue of Section 241(1) (a) of the 1999 Constitution (as amended),
‘An appeal shall be from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following issues:
(a) final decision in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.’ PER TUNDE OYEBANJI AWOTOYE, J.C.A.
APPEAL: THE REASONS THAT MUST BE EXPLAINED IN AN APPLICATION FOR EXTENSION OF TIME
In E.F.P Co Ltd v NDIC (2007) 9 NWLR (Pt.1039) 216, Onnoghen JSC (as he then was) explained thus:
‘It is settled law that a grant or refusal of an application for extension of time within which to appeal involves the exercise of the discretion of the Court before which the application depends and that the said application must be supported by an affidavit which must state sufficient reasons to explain the delay; it must contain the judgment or ruling of the Court against which the applicant is seeking to appeal and the proposed grounds of appeal against such Judgment or ruling. It should however be noted that two instances of delay may be invited in an application for extension of time to appeal which must be explained. These are:
(a) The reason why the applicant could not appeal within the time statutory allowed to appeal and
(b) The reason why the application was not filed earlier than the time it was filed after the time statutorily allowed for the applicant to appeal’
I need to add that the proposed grounds of appeal must prima facie show good cause why the appeal should be heard. See ADELEKAN v ECU-LINE NV (2006) 12 NWLR (Pt. 993) 33. PER TUNDE OYEBANJI AWOTOYE, J.C.A.
ABUSE OF COURT PROCESS: MEANING AND NATURE OF ABUSE COURT PROCESS
In the case of Nnolim vs. Nnolim (2017) LPELR – 41641 CA, this Court said:
“An abuse of the Court process is usually considered in the con of wrongful use of the processes of Court to defraud, annoy, irritate and/or frustrate, or to clog/compromise the smooth administration of Justice. See Saraki & Anor v. Kotoye (1992) 11/12 SCNJ 26; (1992) NWLR (Pt.264) 156; Ogoejeofo vs. Ogoejeofo (2006) 3 NWLR (Pt.966) 205; Onuegbu & Ors v. Gov. of Imo State & Ors (2015) LPELR 25968 (CA). The concept is used to express disgust about wrong use of Court processes to circumvent the rules and principles of justice in a case.” PER ITA GEORGE MBABA, J.C.A.
JUSTICES
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
MR. BLESSING ODOCHA Appellant(s)
AND
ENGINEER (CHIEF) EBERE I. UDEAGU Respondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A.: (Delivering the Lead Ruling): This is the ruling on the Motion on Notice filed by the Appellant/Applicant seeking for the following orders.
1. An Order of this Honourable Court extending time within which the Applicant may seek leave to appeal against the ruling of the High Court, Imo State in Suit No: HOW/736/2011 (Coram: Nnadi, P.O. Chief (Judge) delivered on 27 March, 2017 refusing and dismissing the Motion on Notice dated 13th March, 2017 but filed on 15th March, 2017 seeking the transfer of Suit No: HOW/736/2011 to any other High Court sitting in Owerri or Imo State in the interest of justice and fairness.
2. Leave of the Honourable Court to Appeal against the Ruling delivered on 27th March, 2017 refusing and dismissing the Motion on Notice dated 13th March, 2017 but filed on 15th March, 2017 seeking the transfer of Suit No: HOW/736/2011 TO ANY OTHER High Court sitting in Owerri or Imo State in the interest of justice and fairness.
3. An Order of this Honourable Court extending the time within which the Applicant may file his Notice of Appeal, annexed as Exhibit NAC 1, against the
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Ruling of the High Court 1, Imo State delivered on 27th March, 2017 refusing and dismissing the Motion on Notice dated 13th March, 2017 but filed on 15th march, 2017 seeking the transfer of suit No: HOW/736/2011 to any other High Court sitting in Owerri or Imo State in the interest of justice and fairness.
4. An Order of Court for stay of proceedings in Suit No: HOW/736/2011 pending the determination of the application for leave to appeal.
?The grounds for the reliefs sought as per the motion paper are:
1. Sequel to the Ruling on 27th March, 2017 of the High Court 1, Imo State, the Applicant being dissatisfied therewith, filed Motion on Notice for leave to appeal against the said Ruling on 3rd April, 2017 but the motion has not been heard as at the time of filing this application in this Court.
2. On 3rd July, 2017 when the application came up for hearing at the Court of Appeal, the Notice of Appeal annexed to Motion dated May 2017 for leave to appeal the ruling of 27th March, 2017 was struck out because it was not signed by the Legal practitioner that prepared it.
3. The period for the notice of application for leave to appeal which is
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fourteen days as in this has since expired.
4. That the Notice and Grounds of Appeal raises a prima facie good and arguable Grounds of Appeal.
5. That the Notice of Appeal shows a substantial case on the merit and a point of law involved for determination by the Court.
The application is supported by 4 paragraph affidavit to which a certified true copy of the ruling delivered on 23rd March, 2017 by Nnaji C. J. of Imo State High Court was exhibited.
The Notice of Appeal (proposed) marked Exhibit NAC 2 also annexed to the affidavit.
The Applicant on 3/8/2017 further filed 8 paragraph further affidavits exhibiting the course list for 31/1/2017 and the order of Court of Hon. Chief Judge P. O. Nnadi made on 28/2/2016 granting C. O. Ahumibe Esq. leave to serve the motion on Notice for withdrawal on the Applicant by substituted service and some other documents.
The Respondents had on 10/7/2017 in reaction to the affidavit filed by the Applicant filed 11 paragraph Respondent counter affidavit in opposition to the Applicant Motion on Notice for leave to Appeal and stay of Proceedings filed on 3/7/2017.
?In arguing the application
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Azubuike Nwankenta for the Applicant withdrew prayer 4 of the Motion on Notice. He referred to the affidavit filed. He referred to the grounds of appeal. He urged the Court to grant the application.
In response learned Senior Counsel for the respondent J. T. U. Nnodum S.A.N. referred to the counter-affidavit filed by the respondent. He urged the Court to dismiss the application as it was not made in good faith. He cited BAKARE v. ACB LTD (1986) 3 NWLR PART 26 PAGE 47 at 59.
I have carefully considered the processes filed as well as the argument of counsel on both sides.
The facts relied upon by the Applicant to sustain this application can be gathered from the affidavit filed by him.
In the further affidavit deposed to by Oluwamuyiwa Shadrack, a legal practitioner of Nwankenta & Co, in support of the application, the deponent stated as follows in paragraphs 4 to 8.
1. ?Paragraphs 7(a), 7(b) and 7(c) are complete distortions of facts and untrue, in particular response I know as a fact that:
i. The business of the Court on 31st January, 2017 was for defence to open. However, the former defendant Counsel the Law Firm of C.
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O. Ahumibe Esq. moved his motion to withdraw representation for the defendant and same was granted by the Court without opposition by the Plaintiff counsel the learned SAN on record Attached and marked NAC 1 is the Cause list for 31st January, 2017 and the suit listed No: 2 thereat.
ii. The application by the Law Firm of Chris Ahumibe & Co to withdraw representation for the defendant was served on Defendant by substituted means in pursuance of the order of Learned trial Chief judge on 28th October, 2016. Attached and marked Exhibits NAC 2 & NAC 3 are the order of Court dated 28/10/2016 and the application for withdrawal filed on 11 October, 2016 by the Law Firm of Chris Ahumibe & Co.
2. Paragraphs 7(d), 7(e), 8(f) and 7(g) are untrue and factual distortions and in particular response I know as a fact that:
i. The defendant/Applicant was not part of the proceedings for hearing by adoption of the Plaintiff?s final address as the proceedings of 27th March, 2017 speaks for itself as follows at page 6 of Ruling.
ADOPTION OF FINAL ADDRESS OF COUNSEL
J. T. U. Nnodum, SAN adopts the final written address of counsel to the
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claimant and urged the Court to grant the reliefs sought.
AZUBUIKE NWANKENTA Esq. said in view of the Ruling of the Court on the application for transfer, the Defendant does not associate himself with the Final Address of the counsel to the Claimants (sic).
COURT: Case is adjourned to the 5th of May, 2017 for judgment. (Bold print supplied).
3. Paragraphs 7(h), 8(d), 8(e) and (f) of the Counter affidavit are manifestly untrue and further efforts at factual distortions and in response I know as a fact that:
i. From the ruling of the learned trial Chief Judge at paragraph 10 of page 4, the Court single-handedly foreclosed defence without any application from the Learned Senior plaintiff?s Counsel as there was no representation howsoever for the Defendant who was not present in Court in person.
ii. The Applicant?s proposed Notice and Ground of Appeal raises substantial case on the merit and good and arguable grounds of appeal.
iii. It was and still the proceedings before and that of 31st January, 2017 that ridiculed the judicial process and brought the civil justice delivery system to public opprobrium.
iv. The
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application for leave to appeal is made in faith and not meant to ?arrest? the ?judgment? of the Respondent which proceedings therefore are in total breach and neglect of fair hearing and fair trial at the altar of speedy trial.
v. In the absence of any reason for the non appearance of the defendant in Court whose counsel just withdrew representation in the matter, the Learned Chief judge was under a duty to order that hearing notice be issued and served on the Defendant and further opportunity be given to the Defendant to defend himself in person or engage the services of another Counsel.
vi. Further proceedings at the back of the Defendant is an over breach of the Defendant?s right to fair hearing and fair trial and manifestly absurd.
4. Paragraphs 8(g) and 10 of the counter affidavit are denied and in response I know as a fact that interest of justice will be served if this application is granted.
5. I know as a fact that:
a. It is in the interest of justice, fair hearing and fair trial to grant this Application and the Respondent would not be prejudiced howsoever thereby.?
?Further facts in
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respect of this application can also be gathered from the ruling of Nnadi C. J. (Imo State) delivered on 23rd March, 2017 Exhibit NAC 1 wherein his lordship captured the facts in this way:-
?This Court has considered the processes placed before it in this motion on Notice for transfer of this suit to another High Court including the written submissions of learned counsel on either side and noted in particular the following:
?1. That the Claimant/respondent had the services of a Counsel J.T.U. Nnodum SAN in the institution and prosecution/hearing of this suit.
2. That the Defendant/Applicant had the services of a counsel C.O. Ahumibe Esq. and entered appearance and filed his Statement of defence and counter claim and other processes in this suit.
3. That the Claimant and the Defendant were represented by counsel at the pre trial conference conducted in this case and fixture for hearing of the case.
4. That the Claimant and the Defendant were duly represented by counsel at the hearing of the evidence of the Claimant and his witness i.e. CW1, CW2 and CW3 and counsel to the Defendant cross examined the 3 witnesses who
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testified for the Claimant.
5. That on 1/6/2015 counsel to the defendant conducted the cross examination of the CW3, the Claimant closed his case and the case was adjourned at the instance of counsel to the Defendant for defence on 20th and 22nd of July, 2015.
6. That on 22nd of July, 2015, the defence was further adjourned at the instance of counsel to the Defendant to enable the Defendant come and give evidence.
7. That on 27/4/16 the defence in this case was adjourned because of the unexplained absence of the Defendant and his counsel from Court and on the 5th October, 2016, the defence in this case could not go on and counsel who appeared for the Defendant informed the Court of the intention of his Principal C.O. Ahumibe Esq. to withdraw from representing the Defendant because the Defendant no longer comes to their office for instructions and perfection of their brief in representing the Defendant.
8. The case was further adjourned to enable counsel to the Defendant withdraw his appearance for the Defendant and for defence.
9. That on 12th and 28th October, 2016, this case was further adjourned at the instance
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of counsel to the Defendant.
10. On 31st of January, 2017, counsel to the Defendant and in the absence of any reason for the non appearance of the Defendant in Court and having given the Defendant ample time and opportunity to put across his defence which he failed or neglected to do, the Court foreclosed the Defendant from giving any defence and adjourned the matter for adoption of final address of counsel.
11. On 3rd of March, 2017 the present counsel appeared for the Defendant and urged the Court to consider the letter for transfer written by the Defendant and after taking arguments from counsel on both sides, the Court refused the application and adjourned this case to the 17th of March, 2017 for adoption of final address of counsel.
12. That on 17/3/2017, counsel to the Defendant filed the present application asking for a transfer of this case to another High Court in the interest of justice and fair hearing.
13. That the cases of FAWEHINMI v. LPDC and ATIKU ABUBAKAR v. YARADUA cited by counsel to the Applicant do not apply to the case as the facts in those cases are not in pari materia with the facts of this
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case.
In the light of the foregoing and considering that this present application for transfer of this case to another High Court is similar to that made personally by the Defendant and which this Court refused as lacking in merit and that the Defendant had been given ample time and opportunity to put across his case but he failed or neglected to do and this is not an application to allow the Defendant to defend this case but only to have the case transferred to another Court, this Court is of the firm view and so holds that this application which merely seeks to have this case transferred to another High Court just for the sake of transfer is designed to forestall the expeditions disposal of the case.?
Exhibit NAC 2 is the proposed Notice of Appeal being sought to be filed and in respect of which extension of time and leave are being sought.
For ease of reference I hereby reproduce the proposed grounds of appeal (excluding the particulars) and the reliefs being sought from this Court in the proposed Notice of Appeal.
The pertinent question to ask in the consideration of this application are the prayers of the Applicant grantable in
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the face of the facts as shown in the various processes before the Court?
?GROUND 1: ERROR IN LAW
The Learned Trial Chief Judge erred in law when it relied on the cases of Ahmed v. S.M.B. Ltd (2015) 13 NWLR (Pt. 1476) and Nigeria Airport Authority v. Alhaji Y. A Adewale (1985) 3 NWLR (Pt. 13) 474 and held that the Defendant/Applicant did not present strong and cogent verifiable reasons warranting the request for such transfer and consequently refused and dismissed the application for transfer to any other High Court in the interest of justice and fairness thereby denied the Defendant/Applicant fair hearing and fair trial at the altar of quick dispensation of the case.
PARTICULARS OF ERROR.
1. The principles of law enunciated in the cases of Ahmed v. S.M.B. Ltd (2015) 13 NWLR (Pt. 14760) 403 and Nigerian Airport Authority v. Alhaji Y. A. Adewale (1985) 3 NWLR (Pt. 13) 474 supported the undisputed and settled facts that led to MOTION ON Notice dated 13 March, 2017 but filed on 15 March, 2017 seeking the transfer of SUIT NO HOW/736/2011 to any other High Court sitting in Owerri or Imo State in the interest of justice and fairness.
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2. On 31 January, 2017 C. O. Ahumibe?s motion for leave to withdraw representation for the Defendant was granted and he was discharged by the Honourable Court though the Defendant was not in Court and in his absence.
3. On the same 31 January, 2017, immediately after the motion for withdrawal was moved and granted, Learned Senior?. for the Plaintiff/Respondent there and then, in the absence in Court of the Defendant/Appellant, applied that the defence be foreclosed and further applied that the Honourable Court grants him leave to file his Written Address. The said application was granted on 31/01/2017 by the learned trial Chief Judge.
4. The matter was adjourned to the 03 March, 2017 for hearing by adoption of the final Written Address of the Plaintiff Counsel.
5. On 31 January, 2017 this Honourable Court on the application of the Learned Senior Plaintiff Counsel foreclosed defence without giving the Defendant the time and opportunity to either seek for the services of another Lawyer or to represent himself personally in the matter as litigant in person in a matter which the Defendant had always and for all purposes been
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represented by Counsel who was discharged.
6. On 08 February, 2017, Plaintiff/Respondent?s Counsel filed his Final Written Address.
7. Before the 03 March 2017 when the matter was adjourned for hearing by adoption of the Plaintiff/Respondent Final Written Address on 27 February, 2017 the Defendant?s new Counsel filed his Notice of change of Counsel.
8. On 03 March, 2017 the Defendant?s new Counsel Notice of change of Counsel filed on 27 February, 2017 was granted by this Court.
9. The defendant was not given time and adequate opportunity to present his contrary to principles and provisions of Section 30 of the 1999 Constitution of Nigeria as Amended.
10. The Honourable Trial Court misapplied the principle in Ahmed v. S.M.B. Ltd (2015) 13 NWLR (Pt. 14760) 403 and Nigerian Airport Authority v Alhaji Y. A Adewale (1985) 3 NWLR (Pt. 13) 474 wrongly to the settled facts that necessitated the application and consequently refused and dismiss the motion for transfer.
GROUND 2. MISDIRECTION IN LAW
The Learned Trial Chief Judge misdirected itself in law and fact by denying the Defendant/Appellant fair hearing and fair
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trial when it held that the facts and circumstances in Legal Practitioners Disciplinary Committee v. Chief Gani Fawehinmi (1985) 2 NWLR (Pt. 7) p. 300 and Alhaji Atiku Abubakar, GCON & 2 Ors v Alhaji Umaru Musa Yar?Adua & 5 Ors (2008) NWLR (Pt. 1078) p. 465 or LER (2008) S.C. 288/2007 are not in pari materia with the facts and circumstances of the Motion on Notice dated 13 March, 2017 but filed on 15 March, 2017 seeking the transfer of SUIT NO. HOW/736/2011 to any other High Court sitting in Owerri or Imo State in the interest of justice and Fairness and thereby dismissed the motion.
PARTICULARS OF ERROR.
1. The main issues(s) and particular but in Legal Practitioners Disciplinary Committee v. Chief Gani Fawehinmi (1985) 2 NWLR (Pt. 7) 300 was fair hearing and principles of natural justice.
2. The issue, facts and circumstances in Alhaji Atiku Abubakar, GCON & 2 Ors. v. Alhaji Umaru Musa Yar?Adua & Ors (2008) NWLR (Pt. 1078) p. 465 or LER (2008) S.C. 288/2007 was that fair hearing and fair trial cannot be sacrificed for speedy hearing of case as justice rushed is justice denied.
3. The events of 31 January 2017
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were sufficiently capable of creating fear and suspicion in the mind of the Appellant and the public as to the question of fair trial.
4. On 28 October, 2016 C. O. Ahumibe Esq former Learned Counsel for the Appellant was granted leave to serve his motion for withdrawal on the Appellant by substituted means i.e. by pasting same at the Appellant Plot No. 97 Housing Area Old D, New Owerri, Imo State property being the last known place of abode of the Appellant within the jurisdiction of the Honourable Court.
5. On 31 January 2017, Motion for leave to withdraw representation for the Appellant dated and filed 10 October, 2016 was granted and immediately after the motion for withdrawal was moved and granted, learned Senior Counsel for the Plaintiff/Respondent there and then, in the absence in Court of the Defendant, applied that the defence be foreclosed and further applied that the Honourable Court grants him leave to file his Written Address. The said applications were granted on 31/01/2017 by the Learned Chief Judge.
6. In the circumstances of the events prior to and that of 31 January, 2017 the Learned Chief Judge was duty bound in law and equity
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to order at least one hearing notice be issued and served on the Appellant who was not in Court when his former Counsel was granted leave to withdraw representation thereby giving the Appellant time and opportunity to either seek for the services of another Lawyer or to represent himself personally in the matter as litigant in person.
7. The order for foreclosure and consequent leave to file final written address granted to the Plaintiff/Respondent as the events of 31/01/2017 depict was in breach of Section 36 of the 1999 Constitution as Amended and the banal pillars of natural justice.
GROUND 3
The ruling is against the weight of evidence.
RELIEFS BEING SOUGHT FROM THE COURT OF APPEAL.
1. An Order setting aside the Ruling of 27 March, 2017 refusing and dismissing Motion on Notice dated 13 March, 2017 but filed on 15 March, 2017 seeking the transfer of SUIT NO. HOW/736/2011 to any other High Court sitting in Owerri or Imo State in the interest of justice and Fairness.?
2. An Order transferring SUIT NO. HOW/736/2011 to any other High Court sitting in Owerri Division of High Court of Imo State for trial de novo.
?As
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aforestated, the applicant seeks for three prayers.
(i) Extension of time to seek leave to appeal.
(ii) Leave to appeal.
(iii) Extension of time within which to appeal against the Ruling of the High Court refusing and dismissing the motion seeking the transfer of Suit No. HOW/736/200 to any other High Court.
When should a party seek for leave to appeal?
In BEN ANACHEBE ESQ v KINGSLEY IJEOMA & ORS (2014) 14 NWLR (Pt. 1426) Page 168, Ngwuta JSC answered this question thus:
?Leave to appeal is required only when the Judgment sought to be appealed is not a final judgment or the appeal is on grounds other than law. If the appeal is one that can be filed as of right then if the applicant is out of time he has to seek for extension of time to appeal and not leave to appeal.?
By virtue of Section 241(1) (a) of the 1999 Constitution (as amended),
?An appeal shall be from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following issues:
(a) final decision in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first
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instance.?
Is a decision refusing an application for a transfer of a Suit from one Court to the other an interlocutory or a final decision? A decision refusing an application for a transfer of a suit from one Court to the other is indeed a final decision since it has finally determined the right of the parties on the transfer of the case. See GLOBAL SCENE LTD. v THE REGISTRAR OF TRADE MARKS & ANOR (2011) ALL FWLR (Pt. 558) 877 as 895, ALOR v NGENE (2007) ALL FWLR (Pt. 362) 1836.
Such a decision arrived at after hearing the parties in Court is a final appealable decision under Section 241(1a) of the 1999 Constitution (as amended). See DIKE v DR OSITA ADOBA (2000) 3 NWLR Pt. 647 1, GLOBAL SCENE LTD v THE REGISTRAR OF COURT (Supra) No leave is therefore needed to appeal against such decision. Prayers 1 and 2 of the motion paper being not grantable are therefore struck out.
Prayer 3 seeks for extension of time to appeal against the decision of Nnaji C. J. delivered on 27/3/2017.
?What conditions must be met by the applicant in an application of this nature? In E.F.P Co Ltd v NDIC (2007) 9 NWLR (Pt.1039) 216, Onnoghen JSC (as he then
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was) explained thus:
?It is settled law that a grant or refusal of an application for extension of time within which to appeal involves the exercise of the discretion of the Court before which the application depends and that the said application must be supported by an affidavit which must state sufficient reasons to explain the delay; it must contain the judgment or ruling of the Court against which the applicant is seeking to appeal and the proposed grounds of appeal against such Judgment or ruling. It should however be noted that two instances of delay may be invited in an application for extension of time to appeal which must be explained. These are:
(a) The reason why the applicant could not appeal within the time statutory allowed to appeal and
(b) The reason why the application was not filed earlier than the time it was filed after the time statutorily allowed for the applicant to appeal?
I need to add that the proposed grounds of appeal must prima facie show good cause why the appeal should be heard. See ADELEKAN v ECU-LINE NV (2006) 12 NWLR (Pt. 993) 33. Has the applicant met the above conditions?
I have noted
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that the Ruling of the P. O. Nnaji C. J. in HOW. 736/2011 was delivered on 27/3/2017. The applicant filed this application on 3/7/2017 more than 3 months after the decision.
I have also noted from the ruling that the former counsel of the applicant was C. O. Ahumibe Esq. Ahumibe entered appearance and filed statement of Defence and counter claim on behalf of the applicant. He participated in the proceedings and cross-examined CW1, CW2 and CW3 on behalf of the applicant. Subsequently on 1/6/2015 the claimant closed his case after Ahumibe Esq had concluded the cross-examination of the Claimants witnesses.
The applicant failed to appear in Court on subsequent days of adjournments. This made Ahumibe Esq to withdraw his appearance for him.
?
The present learned counsel for the applicant after several adjournments later appeared for the applicant. He did not pray to be allowed to call witnesses for the defence. He just prayed for a transfer of the case to another High Court in the interest of justice and fair hearing. One would have thought the applicant should have applied to be allowed to give evidence and call witnesses in his own defence and given
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the Court the reasons for his long absence from Court. What is fair hearing or justice in the con of the application he made for a transfer of a part-heard matter to another Court to of course be commenced de novo? This application seems more to be an affront against the administration of justice and a deliberate attempt to frustrate and abort the proceedings at the lower Court. The applicant did not allege corruption or bias on the part of the trial Judge as the reason for seeking the transfer. Had the learned trial Judge refused to allow the applicant to give evidence after such application had been made then the grouse of the applicant would have been understandable? This application is in my respectful view an abuse of Court process. The applicant cannot dictate the Judge to try his case.
I have gone through the averments in affidavit in support of the application. I am dissatisfied with the reason given for the delay in bringing this application. I have also gone through the proposed grounds of appeal which I consider not to show good cause why the appeal should be heard.
?
This application is lacking in merit. It is accordingly
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dismissed.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree.
ITA GEORGE MBABA, J.C.A.: I agree with the reasoning of my learned brother, Awotoye JCA, that the application cannot be granted, as there is no valid legal basis, disclosed in the proposed grounds of appeal, to justify an appeal against the decision of the trial Court, refusing application to transfer the suit to another judge.
From all the transpired at the Court below, and after the time expanded waiting, in vain, for the Defendant to lead evidence to defend the suit, it is obvious this application is an abuse of the Court process, simply taken out to frustrate the determination of the suit, filed since 2011 and for which the plaintiff (Respondent) had closed his case on 1/6/15. Because Applicant never evinced any interest to defend the suit, and he never applied to be allowed to defend the suit, the application appears only a ploy to use the judicial process, wrongly, to defy the orders of the lower Courts. It is meant to enthrone and reward belligerence and rubbish the administration of justice, while also frustrating,
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vexing and annoying the adverse party. This, in my view, is another typical case of abuse of Court, or use of the judicial process of mischief. See the case of Saraki & Anor vs. Kotoye (1992) NWLR (Pt.264) 156, where the Supreme Court denounced the use of the judicial process to the irritation and annoyance of opponent and to hamper efficient and effective administration of justice. See also CBN Vs Ahmed (2001) 11 NWLR (Pt.724) 369 (SC) Dingyadi v. INEC (No.2) (2010) 18 NWLR (Pt.1224) 154 (SC).
In the case of Nnolim vs. Nnolim (2017) LPELR ? 41641 CA, this Court said:
?An abuse of the Court process is usually considered in the con of wrongful use of the processes of Court to defraud, annoy, irritate and/or frustrate, or to clog/compromise the smooth administration of Justice. See Saraki & Anor v. Kotoye (1992) 11/12 SCNJ 26; (1992) NWLR (Pt.264) 156; Ogoejeofo vs. Ogoejeofo (2006) 3 NWLR (Pt.966) 205; Onuegbu & Ors v. Gov. of Imo State & Ors (2015) LPELR 25968 (CA). The concept is? used to express disgust about wrong use of Court processes to circumvent the rules and principles of justice in a case.?<br< p=””
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I too dismiss the application for lacking in merit.
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Appearances:
Azubuike NwankentaFor Appellant(s)
J.T.U Nnodun, SAN with him, N.R. Chibuisi and E. M. AlinnorFor Respondent(s)
Appearances
Azubuike NwankentaFor Appellant
AND
J.T.U Nnodun SAN, with him, N.R. Chibuisi and E. M. AlinnorFor Respondent
