MR. CHETA NNAMANI v. MR. AFAM NNAJI & ORS (2013)

MR. CHETA NNAMANI v. MR. AFAM NNAJI & ORS

(2013)LCN/6668(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 18th day of December, 2013

CA/E/75/2011

RATIO

CONDITIONS TO SUSTAIN A CHARGE OF ABUSE OF COURT PROCESS

Therefore to sustain a charge of abuse of process, there must co-exist inter alia:-

(a) a multiplicity of suits;

(b) between same opponents;

(d) on the same issues.

All these pre-conditions are mutually inclusive as they are conjunctive. See Umeh v. Iwu (2008) 8 NWLR (Pt. 1089) 225; Okafor v. A.G. Anambra State (1991) 6 NWLR (Pt. 200) 659 and Ogoejeofo v. Ogoejeofo (2006) 3 NWLR (Pt. 966) 205. Per ADZIRA GANA MSHELIA, J.C.A.

WORDS AND PHRASES: ABUSE OF COURT PROCESS

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

MR. CHETA NNAMANI Appellant(s)

AND

1. MR. AFAM NNAJI (ALIAS OKITY)
2. MR. CHIKE NNAJI
3. MR. SUNDAY NNAJI
4. SUPOL MICHAEL ONU
(THE D.P.O. AGBANI POLICE STATION)
5. THE OFFICER IN CHARGE SPECIAL ANTI-ROBERRY SQAUD (SARS) ENUGU STATE
POLICE COMMAND
6. THE COMMISSIONER OF POLICE, ENUGU STATE POLICE COMMAND
7. THE ASSISTANT INSPECTOR GENERAL OF POLICE, ZONE 9, UMUAHIA, ABIA STATE
8. THE INSPECTOR GENERAL OF POLICE
9. POLICE SERVICE COMMISSION
10. THE MINISTER OF POLICE AFFAIRS Respondent(s)

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Federal High Court Enugu Division, coram D.V. Agishi J. delivered on the 27th day of July, 2010 in Suit No. FHC/EN/M/224/2009.

The appellant herein as applicant on 16th October 2009 filed a Suit at the Federal High Court Enugu for the Enforcement of his Fundamental Rights by the Court. Applicant sought for the following reliefs:-
(a) A DECLARATION that the Applicant is entitled to his rights to life, dignity of person, personal liberty, right to privacy, freedom of movement and to owe and acquire immovable property as provided in Sections 33, 34, 35, 37, 41 and 43 of the Constitution of the Federal Republic of Nigeria 1999 and Articles 2, 4, 5, 6, 12 and 14 of the African Charter on Human and Peoples Rights.
(b) A DECLARATION that the 4th and 5th Respondents acting for and on behalf of the 6th Respondent need not first arrest/detain the Applicant before he could be investigated upon an allegation of having committed any criminal offence and that the said Applicant may be investigated without being arrested/detained but so however that if the investigation reveals any “Prima Facie” proof of evidence that he committed any crime he be charged to court forthwith.
(c) A DECLARATION that the 4th & 5th Respondents acting for and on behalf of the 6th Respondent need not first arrest/detain the Applicant’s two buses before they could be investigated upon an allegation of having possess some discrepancies in plate number with that on one of the glasses or any other problem(s) associated thereto as the said buses may be investigated without being arrested/detained but so however that if the investigation reveals any “prima facie” proof of evidence that the Applicant committed any crime in relation to the buses he be charged to court forthwith.
(d) AN INJUCTIVE ORDER restraining the 1st – 3rd Respondents whether acting for themselves or through any of their agents of functionaries from instigating the 4th & 5th Respondents acting for and on behalf of the 6th – 7th Respondents to arrest, detain, torture, search the Applicant’s residence and or threaten his life in respect of a purely community problem between the 1st Respondent and some member of Amugo Autonomous Community and Hon. Barrister Ray. A. Nnaji (an indigene of the same community) of which the Applicant as a member of Amugo Youth Forum became a victim but without prejudice to their arraigning him in a court of competent jurisdiction for trial if there be any prima facie proof that he committed any crime.
(e) AN ORDER directing the Respondents to render an unreserved apology to the Applicant either severally or jointly for the gross violation of the Applicant’s fundamental rights as guaranteed by the Constitution of the Federal Republic of Nigeria1999 and African Charter on Human and Peoples Rights.
(f) AN ORDER compelling the Respondents either severally or jointly within 21 days or such time as may be ordered by this Honourable Court to pay to the Applicant the sum of FIVE MILLION NAIRA (N5,000,000) or any such sum as monetary compensation or aggravated general, special and exemplary damages for the infringement of the fundamental rights of the Applicant.
(g) AN ORDER restraining the 1st – 3rd Respondents or any of their agents, servants or functionaries from further threat to the life of the Applicant or writing fictitious petition to the police for purposes of punishing the Applicant unjustly.
(h) AN ORDER restraining the 4th – 9th Respondents from acting on the false allegation of the 1st – 3rd Respondents in respect of this matter towards the violation of the Applicant’s fundamental rights.”

In compliance with the Fundamental Rights (Enforcement Procedure) Rules, 1979, the said application is supported by a statement as well as verifying affidavit. Annexed to the application are six (6) Exhibits:

Upon being served with the leave and motion on notice, the 1st – 3rd respondents filed a Notice of Preliminary Objection on the 15th day of January 2010, urging the lower court to dismiss the application on the following grounds:-
1. The parties in the present suit are exactly the same as the parties in Suit No. FHC/EN/CS/115/2009 which was earlier in time with a few other parties which does not alter the intrinsic nature of the suit.
2. The ground in support, the reliefs and the facts culminating to the reliefs are the same with those in Suit No. FHC/EN/CS/115/2009.
3. That the cause of action that gave rise to the two Applications are exactly the same and the substratum of the cases are exactly the same.
4. That this present case, being later in time is a gross abuse of the judicial process.

The Notice of Preliminary Objection is supported by a 14 paragraph affidavit. Attached to the said affidavit is a certified true copy of Suit No. FHC/EN/CS/115/2005. The 1st – 3rd respondents equally filed a 28 paragraph counter affidavit to the substantive application on the 19th April, 2010.

In response to the Notice of Preliminary Objection, the appellant filed a 52 paragraph counter affidavit deposed to on the 18th day of January, 2010 and a 23 paragraph counter-affidavit filed on the 5th of February 2010.

Counsel for the 1st – 3rd respondents addressed the court (orally) on the 25th day of May 2010 in support of the Preliminary Objection. Applicant’s counsel opposed the application and urged the court to dismiss the preliminary objection of the 1st – 3rd respondents. In a considered ruling delivered on 27/07/2010, the learned trial judge concluded thus:-
“The cause of action that gave rise to the two suits are same. The parties too are not different. I am in agreement with learned counsel to the Respondent/Applicants that this action amounts to an abuse of the judicial process. And all the authorities or cases earlier cited by both counsels seriously support the application of the Respondent/Applicant. That this application brought by the applicant is calculated to harass, irritate and annoy.
Also I observe that if I do not do substantial justice by handling this application decisively, I will actually as submitted by Respondent/Applicant learned counsel be allowing myself to be set at collusion course with my learned brother handling a similar application in his court.
I hold the view that there are other ways of going about the matter. It is in this regard that I also agree with the learned SAN that Order 6 Rule 2 of the Fundamental Right Enforcement Procedure Rules, 2009 could have taken care of the problem or better still the suit in my brother’s court would have been withdrawn. The Preliminary objection is upheld and this suit is hereby dismissed”.

Being dissatisfied, appellant lodged an appeal to this court vide notice of appeal filed on 9/8/10 containing Eight (8) grounds of appeal.
In accordance with the practice of this Court, appellant filed his brief of argument which was dated 20.4.11 and filed on 11.10.11 but was deemed properly filed and served on 25.02.2013. The respondents failed or neglected to file their respondents brief of argument. Appellant was granted leave to hear the appeal on appellant’s brief alone.

When the appeal came up for hearing, appellant’s counsel adopted his brief of argument, and urged the court to allow the appeal. Appellant formulated four issues for determination as follows:-
i. Whether the lower court was right to dismiss the Appellant’s Suit on the ground of being an abuse of judicial process even when the characteristics of the two suits are not the same and whether the trial court was right to entertain the Respondent’s preliminary objection separate from the substantive application against the provision of the 2009 Rules.
ii. Whether the instant suit is a multiplication/duplication of Suit No. FHC/EN/CS/115/2009 by the Appellant and whether the presence/existence of the 2nd Respondent, alone in the two suits without more, constitute an abuse of court process even when the parties, cause of action and reliefs are not the same.
iii. Whether the instant suit imposes any forum of harassment, irritation and annoyance to the 1st – 3rd Respondents and whether the lower court could have awarded costs, to parties who neither participated in arguing the objection nor made any contribution to the said objection of the 1st – 3rd Respondents.
iv. Whether it is possible for the Appellant by virtue of Order 6 Rule 2 of the FREP Rules 2009 to amend the statement in support of the Suit No. FHC/EN/CS/115/2009 thereby incorporated new parties, new facts and reliefs to the said suit without filing fresh action.

Appellant argued issues i, ii, iii together. In his argument, learned counsel for the appellant submits that the position of the law is in serious conflict with the decision of the trial court as it is settled in law that, for a case to be an abuse of judicial process, it must be a process not used bonafide and properly. It is a term generally applied to a proceeding which is wanting in bonafide and is frivolous, vexatious or oppressive. It is the improper use of process. In other words, when a party improperly uses the issues of judicial process to the irritation and annoyance of his opponent, such as instituting a multiplicity of actions in the same subject matter against the same opponent on the same issue. Reliance was placed on Yakubu v. Ajaokuta Steel Company Ltd. (2010) 2 NWLR (Pt. 1177) 167 at 171 ratio 6.

The learned counsel for the appellant among his series of submissions contended that filing of two applications in different court at the same time does not ipso facto constitute an abuse of process of court.

For it to constitute an abuse, it must be compelled with an intention to harass, irritate and annoy the respondent and the intention or purpose to interfere with the administration of justice. Counsel referred to the case of B.O.N v. Abiola (2007) 1 NWLR (Pt. 1014) 23 at 27 ratio 7.
Counsel further contended that it is not the law that once a party files another suit before the court on the same subject matter, there is an abuse of court process. It is the law that an act can give rise to different suits. In other words, different suits can emanate from the same subject matter but with different rights and reliefs.
In sum, he urged the court to allow the appeal and order a retrial of same on merit by a different judge.

Learned counsel for the appellant argued issue iv at pages 14 – 16 of his brief of argument. He submitted that by virtue of Order 6 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, it is impossible for the appellant to amend suit No. FHC/EN/CS/115/2009, hence the only option to the appellant is to file a fresh action. That the new Rules makes provisions for the amendment of the statements in support of Fundamental Rights suit only and nothing more. In other words, it is only the statements that can be amended as expressly provided under Order 6 Rule 2. That any amendment of the entire suit outside the statement as provided under Order 6 Rule 2 of 2009 rules, is offending the provisions of the rules.

I have studied issues 1, 2, and 3 formulated by the appellant. The three issues are similar and can conveniently be treated under sole issue to wit:
“Whether the trial court was right to hold as it did that the action in Suit No. FHC/EN/M/224/2009 that precipitated to this appeal does amount to abuse of court process.”

Abuse of Court process has been variously defined by the Apex Court and this Court over the years and includes 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. Where two or more similar processes are issued by a party against the same party/parties in respect of the same right and same subject matter or where the process of the court has not been used bonafide and properly same constitutes abuse of court process. See Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188; Okorodudu vs. Okoromadu (1977) 3 SC 21; Okafor v. A.G. Anambra State (1991) 6 NWLR (Pt. 200) 63 at 681; Olutinrin v. Agaka (1998) 6 NWLR (Pt. 554) 366; Agwasim v. Ojichie (2004) 4 SC (Pt. 11) 160; African Continental Bank Plc v. Nwaigwe (2011) 7 NWLR 380 and V Ikine v. Edierode (2001) 12 SC (Pt. 11) 94.
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 an 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 constitute an abuse of 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.

Therefore to sustain a charge of abuse of process, there must co-exist inter alia:-
(a) a multiplicity of suits;
(b) between same opponents;
(c) on the same subject matter; and
(d) on the same issues.
All these pre-conditions are mutually inclusive as they are conjunctive. See Umeh v. Iwu (2008) 8 NWLR (Pt. 1089) 225; Okafor v. A.G. Anambra State (1991) 6 NWLR (Pt. 200) 659 and Ogoejeofo v. Ogoejeofo (2006) 3 NWLR (Pt. 966) 205.

It is against the backdrop of these conditions that one has on the issue of abuse of process in the instant matter to scrutinize the aforesaid Suits No. FHC/EN/CS/115/2009; MR. CHETA NNAMANI v. CHIEF LAWRENCE NNAJI & 4 ORS and FHC/EN/M/224/2009; MR. CHETA NNAMANI vs. MR. AFAM NNAJI (ALIAS OKITI) & 9 ORS.

As to whether the parties are the same, I have carefully examined the two suits under consideration and have come to the conclusion that the parties are not the same. The earlier suit filed on 26/9/2009 by the appellant bears No. FHC/EN/CS/115/2009 which same was annexed to Exhibit IKI. In that case there were five respondents. In the subsequent Suit No. FHC/EN/M/224/2009 there are ten (10) respondents. I have observed that the 2nd respondent is the only common party in the two suits. The 6th and 8th respondents are mere nominal parties whose presence in the two suits is by virtue of their office only. The introduction of the 1st, 3rd, 4th, 5th, 7th, 9th and 10th respondents is no doubt an evidence that parties are different and the mere presence of the 2nd respondent in both suits does not vitiate the validity of the subsequent suit on the grounds of same opponent. I agree with the submission of appellant’s counsel that the presence of the 2nd respondent in both suits as a result of different roles played is not enough to qualify the suit as an abuse.

It is not in doubt that the subject matter of both suits is technically the same i.e. the Enforcement of the Fundamental Rights of the Appellant herein. Though the appellant has made efforts to use different tenses and terminologies, I am inclined to hold that the subject matter is the same.

The most dicey condition precedent for an abuse of court process as it relate to this case has to do with question of whether both suits have the same issue.

Can it be said on a close look at the affidavit evidence before the lower court that the two suits have a common issue? From the record before this court, Suit NO. FHC/EN/CS/115/2009 was filed on the 3rd day of July 2009 while Suit No. FHC/EN/M/224/09 was filed on 16.10.09. That means, the cause of action relating to suit FHC/EN/CS/115/2009 are events which predated the said suit, including actions upon which the suit was predicated. A careful perusal of paragraph 4(xvii), (xviii), (xix), (xxii) and (xxiii) of the statement filed in support of the motion appearing at pages 13 to 14 of the record, showed that the cause of action leading to this present suit occurred after the appellant had already filed the earlier suit. Furthermore, an analysis of Exhibits IK, 2, 3, 4 and 5 as contained at pages 120 – 124 of the record clearly show the differences between the two suits. Also the report of the investigation of the police of 29/10/2009 as contained at pages 125 – 127 of the record supports the appellant’s submission that the two suits are not the same but quite distinct. The Police Investigation report relates to complaint of Armed Robbery and Receiving three stolen buses. Even if the reliefs sought in both suits appears to be similar the events that led to the filing of the two suits occurred on different dates.

It is my humble view that the learned trial judge was in error to hold that the cause of action that gave rise to the two suits are the same. I agree with appellant’s counsel that the issues in the two suits differ. Based on the careful appraisal of the two suits, the contending issues in both suits are not the same.

Having established that the issues in the two suits are different, the question now is, were there other options available to the appellant other than filing a fresh suit?
This takes us to issue No. iv raised by the appellant in his brief of argument. Appellant’s counsel had submitted in his brief of argument that Order 6 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 could not be used to amend Suit No. FHC/EN/CS/115/2009 in order to accommodate all the new parties, facts and reliefs in the instant suit as the 1st – 3rd Respondents had argued in the court below. For clarity, Order 6 Rule 2 is reproduced hereunder as follows:-
“The court may on the hearing of the application allow the statement to be amended and may allow further affidavit to be used if they deal with new matters arising from the counter affidavits of any party to the application”. (Underlining mine).

This provision is very clear. The rule does not contemplate fresh cause of action, rather it deals with new matters arising from the counter-affidavits of any party to the application. Suffice it to say that from the record of these cases, it is evident that at the time of filing the subsequent suit, the 2nd respondent had not filed any counter-affidavit to the earlier suit. To my mind, the appellant did not have any other option than filing a fresh action.

I wish to note that the employment or use of Judicial Process is only regarded generally as an abuse when a party improperly uses the judicial process to the harassment, irritation of his opponent and or to interfere with the efficient and effective administration of justice. See the case of Ojo v. A.G. of Oyo State (2008) 15 NWLR (Pt. 1110) 309 and Umeh v. Iwu (supra).

In the instant case, there is no place in the 1st to 3rd Respondent’s counter affidavit or affidavit in support of the Notice of Preliminary Objection where it states or avers that the subsequent suit is aimed at harassing, irritating or annoying them. There is no proof that the appellant intended to irritate or annoy the respondents by filing this action. The instant suit cannot therefore be said to be vexatious. The filing of the two suits by the appellant was not also based on improper motives wanting in bonafides. See Christian Outreach Ministries Inc. v. Cobham (2006) 16 NWLR (Pt. 1002) 268 at 306 – 307.

On the whole, I uphold unequivocally the appellant’s contention in this appeal, to the effect that the court below erred in law when it dismissed the appellant’s suit on the grounds of an abuse of judicial process. Accordingly, I resolve the two issues in favour of the appellant.

In the final analysis, therefore the appeal is meritorious and is hereby allowed. The decision of the Federal High Court delivered on 27.7.10 by Agishi J. is set aside. I make an order that Suit No. FHC/E/M/224/2009 be remitted back to the Federal High Court Enugu Division, for assignment to another judge of the said Court to hear and determine same afresh.
Parties to bear their own costs.

IGNATIUS IGWE AGUBE, J.C.A.: I agree.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had read the judgment just delivered by my Learned Sister, ADZIRA GANA MSHELIA JCA. I agree with the reasoning and conclusions therein. I agree that the appeal is meritorious and is therefore allowed. I also set aside the decision of the Federal High Court in Suit No FHC/E/M/224/2009 delivered on 27-7-2010. I abide by the other orders made in the judgment.

Appearances

R. A. Nnaji with O. C. Abalu Esq.For Appellant

AND

Respondents duly served (though absent).For Respondent