MRS. ELIZABETH ABIOLA ORIOYE & ORS v. MUTIU ABINA & ANOR
(2019)LCN/13547(CA)
In The Court of Appeal of Nigeria
On Monday, the 24th day of June, 2019
CA/L/255/2013
RATIO
CAUSE OF ACTION: INGREDIENTS
The phrase cause of action has been variously defined in a plethora of cases by our Courts as the fact or combination of facts which give rise to a right to sue. It consists of two elements, namely, the wrongful act of the defendant which gives the claimant the right to complain and the consequent damage due to the wrongful act. See AKIBU vs. ODUNTAN (2000) 13 NWLR (PT 685) 446 at 463, EGBUE vs. ARAKA (1988) 3 NWLR (PT 84) 598 at 613, EGBE vs. ADEFARASIN (1987) 1 NWLR (PT 47) 1 at 20 and ECOBANK (NIG.) PLC vs. GATEWAY HOTELS LTD (1999) 11 NWLR (PT 627) 397 at 418. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
CAUSE OF ACTION: DEFINITION
Cause of action is the factual basis or some factual situation, a combination of which makes the matter in litigation an enforceable right or an actionable wrong. See IBRAHIM vs. OSIM (1988) 1 NNSC 1184 at 1194 and TUKUR vs. GOVT OF GONGOLA STATE (1989) 4 NWLR (PT 117) at 581.
In THOMAS vs. OLUFOSOYE (supra) at 682, the Supreme Court adopted the dictum of Pearson, LJ in DRUMMONDJACKSON vs. BRITISH MEDICAL ASSOCIATION (1970) 1 WLR 688 at 696 where the phrase reasonable cause of action was defined thus:
…..no exact paraphrase can be given, but I think reasonable cause of action means a cause of action with some chance of success, when ….only the allegations in the pleadings are considered. If when those allegations are examined it is found that the alleged cause of action is certain to fail, the statement of claim should be struck out. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
CAUSE OF ACTION: REASONABLE CAUSE OF ACTION: WHETHER THERE IS A REASONABLE CAUSE OF ACTION
In determining whether a reasonable cause of action is disclosed, the Court needs only to look at and examine the averments in the statement of claim. See AJAYI vs. MILITARY ADMINISTRATOR, ONDO STATE (1997) 5 NWLR (PT 503) 237, 7UP BOTTLING CO. LTD vs. ABIOLA (2001) 29 WRN 98 at 116 and OTUBU vs. OMOTAYO (1995) 6 NWLR (PT 400) 247. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
ESTOPPEL: THE PRINCIPLE OF ESTOPPEL AND TYPES
Turning our attention to the principle of issue estoppel. The principle of estoppel was enunciated by Idigbe, JSC in FADIORA vs. GBADEBO (1978) LPELR (1224) 1 at 12 -14 in the following words:
“Now, there are two kinds of estoppel by record inter partes or per rem judicatam, as it is generally known. The first is usually referred to as cause of action estoppel and it occurs where the cause of action is merged in the judgment, that is, Transit in rem judicatam [see King Vs. Hoare (1844) 13 M & W 495 at 504]. Therefore, on this principle of law (or rule of evidence) once it appears that the same cause of action was held to lie (or not to lie) in a final judgment between the same parties, or their privies, who are litigating in the same capacity (and on the same subject matter), there is an end of the matter. They are precluded from relitigating the same cause of action. There is, however, a second kind of estoppel inter partes and this usually occurs where an issue has earlier on been adjudicated upon by a Court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in these circumstances, issue estoppel arises. This is based on the principle of law that a party is not allowed to (i.e. he is precluded from) contending the contrary or opposite of any specific point which having been once distinctly put in issue, has with certainty and solemnity been determined against him. [See Outram Vs. Morewood (1803) 3 East 346]. Issue estoppel applies whether the point involved in the earlier decision is one of fact or law or one of mixed fact and law. However, for the principle to apply, in any given proceedings, all the preconditions to a valid plea of estoppel inter partes or per rem judicatam must apply, that: (1) the same question must be for decision in both proceedings (which means that the question for decision in the current suit must have been decided in the earlier proceeding), (2) the decision relied upon to support the plea of issue estoppel must be final (3) the parties must be the same (which means that parties involved in both proceedings must be the same (per se or by their privies).
See also ODJEVWEDJE vs. ECHANOKPE (1987) LPELR (8049) 1 at 42, OSUNRINDE vs. AJAMOGUN (1992) LPELR (2819) 1 at 39-41, AJIBOYE vs. ISHOLA (2006) LPELR (301) 1 at 16, EBBA vs. OGODO (2000) LPELR (983) 1 at 27-35, ADAMS vs. FASASI (2018) LPELR (44379) 1 at 21-23, MAKUN vs. FUT MINNA (2011) LPELR (15514) 1 at 26-27 and OYEROGBA vs. OLAOPA (1998) LPELR (2878) 1 at 24. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
ABUSE OF PROCESS IN TRIAL
The term abuse of process is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. Abuse of process can only mean abuse of legal procedure or the improper use or misuse of legal process: AMAEFULE vs. THE STATE (1988) 2 NWLR (PT 75) 156 at 177 and ARUBO vs. AIYELERU (1993) 3 NWLR (PT 280) 126 at 142. The concept of abuse of judicial process is imprecise and involves circumstances and situations of infinite variety. See SARAKI vs. KOTOYE (1992) 9 NWLR (PT 264) 156 at 188 and OGBONMWAN vs. AGHIMIEN (2016) LPELR (40806) 1 at 11-12. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
ABUSE OF PROCESS: TYPES
The categories of abuse of process is not closed. An action which does not disclose a reasonable cause of action and which is caught by the doctrine of issue estoppel is definitely an abuse of Court process and the lower Court was correct when it held at page 159 of the Records that the Appellants action is a gross abuse of judicial process. In a coda, this issue number two is resolved against the Appellants. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
1. MRS. ELIZABETH ABIOLA ORIOYE
2. BOLAJI AKANJI SANYAOLU
3. OLUWEMIMO ADEBOWALE SANYAOLU
4. ADEBAYO ADEBOWALE SANYAOLU
5. ADEBOLA SANYAOLU
(for themselves and on behalf of the Estate and/or Family of W. A. Sanyaolu (Deceased) Appellant(s)
AND
1. MUTIU ABINA
(For himself and on behalf of the Estate and/or Family of Babatunde Badaru Abina (Deceased))
2. THE REGISTRAR OF TITLES LAGOS STATE Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): Interest rei publicae ut sit finis litium. This Latin maxim means that it is in the interest of the parties that there must be an end to litigation. The case of MAJEKODUNMI vs. ABINA is reported in (2002) 3 NWLR (PT 755) 729. It was decided by the Supreme Court on 18th January 2002. The property subject of the dispute in the case is No. 66 Karimu Street, Surulere, Lagos. More than seventeen years after the Supreme Court decision, the matter is yet to be interred. The property remains litigious. For clarity and ease of appreciation, we will start from the very beginning. That is, the disceptation that led to the decision in MAJEKODUNMI vs. ABINA. The predecessor of the Appellants in this appeal is one Williams Sanyaolu. While the matter was pending, he died and was substituted by Mrs. Grace Abiade Majekodunmi, the Appellant in the Supreme Court decision. The predecessor of the 1st Respondent in this appeal was Babatunde Badaru Abina. He equally died in the course of the proceedings and he was substituted with Mutiu Abina, the 1st Respondent in the Supreme Court decision and he
1
is also the 1st Respondent in this appeal.
It all started with the application made by the 1st Respondents predecessor to the Registrar of Titles, Lagos State, to be registered as the titleholder for No. 66 Karimu Street, Surulere, Lagos. The Appellantspredecessor opposed the application and the matter went to the Registrar of Titles Court, which upheld the right of the 1st Respondentspredecessor to be registered as the titleholder for the property. The Appellantspredecessor was dissatisfied with the decision. He appealed to the appellate division of the High Court of Lagos State. His appeal was dismissed. He further appealed against the decision of the High Court to the Court of Appeal. Once again his appeal failed. Finally, he appealed to the Supreme Court. His appeal was dismissed in the case of MAJEKODUNMI vs. ABINA which I have already referred to. But for the Appellants, the decision of the Supreme Court did not bring a closure to the dispute. On 26th April 2002, which was three months after the decision of the Supreme Court decision of 18th January 2002, they commenced another action before the High Court of Lagos
2
State in SUIT NO. LD/848/2002/MRS. ELIZABETH ABIOLA ORIOYE & ORS vs. MUTIU ABINA & ANOR. They claimed the following reliefs:
i) A DECLARATION that the 1st defendant and/or the family or estate of Babatunde Badaru Abina (deceased) cannot eject the plaintiffs or take possession from them of the property situate and being at No.66, Karimu Street, Surulere, Lagos except after due process resulting from a lawful execution of a Court Order after proceedings in which the plaintiffs have been duly served with process and given the opportunity to defend.
(ii) AN INJUNCTION restraining the 1st defendant and/or the family or estate of Babatunde Badaru Abina (deceased), their servants and/or agents from entering the property situate at No. 66, Karimu Street, Surulere, Lagos, letting or otherwise disturbing the possession thereof of the plaintiffs in any manner however except pursuant to a Court Order for such possession after due process with notice to the plaintiffs.
(iii) AN INJUNCTION restraining the 2nd defendant from registering any interest in the property situate at No.66, Karimu Street, Surulere, Lagos otherwise known at Title
3
MO11052 except with due Notice to the plaintiffs.?
Pleadings were filed and exchanged between the Appellants and the 1st Respondent. The 2nd Respondent did not file any pleadings at the lower Court. The Appellants called one witness in proof of their case and the witness, among other documents, tendered the certified copy of the Supreme Court decision in MAJEKODUNMI vs. ABINA, and it was admitted in evidence as Exhibit C2. The 1st Respondent elected not to call any witness and rested his case on that of the Appellants. At the conclusion of the trial, learned counsel filed written addresses which they adopted and in its judgment, the lower Court, Coram Judice: H. A. O. Abiru, J. (as he then was) dismissed the Appellantscase. The Appellants were dissatisfied and appealed. So here we are. The chafed judgment of the lower Court which was delivered on 19th April, 2007 is at pages 147 -161 of the Records.
The extant Notice of Appeal on which the appeal was argued is the Amended Notice of Appeal which was filed on 14th June 2016.
?In obeisance to the Rules of Court, the Records of Appeal were compiled and transmitted and briefs of argument
4
were filed by the Appellants and the 1st Respondent. The 2nd Respondent did not file any brief and was also not in Court at the hearing. The briefs of argument on the basis of which learned counsel urged the Court to uphold their respective submissions in the determination of the appeal are:
1. Appellants Brief of Argument filed on 18th October 2016 but deemed as properly filed on 24th May 2017.
2. 1st Respondents Brief of Argument filed on 20th February 2018 but deemed as properly filed on 6th March 2018.
3. Appellants Reply Brief filed on 20th March 2018.”
Three issues were formulated for determination in the AppellantsBrief as follows:
?(1) Whether the Lower Court had jurisdiction to consider the Statement of Defence and Written Argument of the Defendant in its Judgment?
(2) Whether the Lower Court was not wrong in holding that issue estoppel barred the suit and that the suit disclosed no reasonable cause of action?
(3) Whether the Lower Court did not deny the claimants of a fair hearing in its unsolicited attacks on their counsel in the Judgment
5
The 1st Respondent on his part distilled two issues for determination, namely:
?1. Whether the 1st Defendants reliance on the evidence given by the claimants but failed to call evidence in support of his pleading has not rendered his statement of defence immaterial in the decision reached by the lower Court.
or Otherwise
Whether the lower Court was right to hear and determine the suit having regards to the 1st defendants failure
