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NATIONAL EAR CARE CENTRE v. ASUKU & ORS (2022)

NATIONAL EAR CARE CENTRE v. ASUKU & ORS

(2022)LCN/17178(CA) 

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Monday, November 21, 2022

CA/K/363/2015(R)

Before Our Lordships:

Amina Audi Wambai Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

NATIONAL EAR CARE CENTRE APPELANT(S)

And

1. DR. M. E. ASUKU 2. DR. A. Y. UKWENYA 3. DR. S. O. AJIKE 4. DR. D. S. ADEOLA 5. DR. A. A. OROGADE 6. DR. A. O. KOLAWOLE 7. MRS B. WHYGOM 8. MR. M. A. OMOLE 9. MR. M. S. UGABAWA 10. MR. B. ROTIMI 11. DR. G. SUFIANU 12. DR. U. ETIM 13. DR. I. A. YUSUF 14. DR U. E. AMANYEIWE 15. DR. M. A. ANKAMA 16. DR. A. O. ADESUNYI 17. DR. A. O. OJABO 18. DR. C. N. ONONIWU 19. DR. A. IBRAHIM 20. DR. R. R. ABAH 21. DR. F. BELLO SANI 22. DR. E. A. ANDEYANTSO 23. DR. M. A. OGBE 24. MR. E. O. ADEKEYE 25. MR. K. OGUNGBEMI 26. MR. M. OYIWE 27. MRS E. B. T. FAGBEMI 28. DR. B. FOMETE 29. DR. A. SULEIMAN 30. DR. I. O. OKPE 31. DR. B. AUGUSTINE 32. DR. J. O. OBANDE 33. DR. K. OBIKWE 34. DR. O. B. OLANIYI 35. DR. J. JIBRIN 36. DR. S. LAFIYA 37. DR. A. I. BELLO 38. DR. A. AMAK 39. DR. J. G. MAKAMA 40. DR. A. SALIHU 41. DR. ISMAIL 42. DR. YAKUBU 43. DR. AHMED 44. MR. C. COSMOS THOM 45. MRS B. YUNUSA 46. MR. OJONGBEDE 47. MR. ALUKO 48. MR. G. CHUKUDO 49. MR. PETER MAKAMA 50. AHMADU BELLO UNIVERSITY TEACHING HOSPITAL MANAGEMENT BOARD 51. PROF. ABDU-AGUYE (CHIEF MEDICAL DIRECTOR, ABUTEACH) 52. NTUNKAE DR MRS. GRACE ITA EYO (CHAIRPERSON ABUTEACH MANAGEMENT BOARD) 53. ABUBAKAR LADAN (CHAIRMAN COMMITTEE TO FORMALLY TAKEOVER THE STRUCTURES OF ABUTEACH) 54. THE A. G. OF THE FEDERATION 55. THE A. G. OF KADUNA STATE 56. THE MINISTER OF HEALTH RESPONDENT(S)

 

RATIO

THE CONCEPT OF ABUSE OF COURT PROCESS

The concept of abuse of Court process takes different forms and it is imprecise. It involves circumstances and situations of infinite variety and conditions. But a common feature of abuse of Court process is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. One of such circumstance is where a Court process is premised on frivolity or recklessness. See generally, the cases of SARAKI VS. KOTOYE (1992) 9 NWLR (PT. 264) PG. 156; OKOROMADU VS. OKOROMADU (1977) 3 SC 21; OYEGBOLA VS. ESSO WEST AFRICA INC. (1966) 1 ALL NLR 170; ARUBO VS. AIYELERU (1993) 3 NWLR (PT. 280) PG. 126 and OGOEJEOFO VS. OGOEJEOFO (2006) 3 NWLR (PT. 966) PG. 205. PER IDRIS, J.C.A.

WHETHER OR NOT IT IS AN ABUSE OF COURT PROCESS WHERE A PARTY INITIATES TWO OR MORE SIMILAR PROCESS ON THE SAME SUBJECT MATTER

​It is an abuse of Court process where as in the instant appeal a party initiates, institutes and prosecutes two or more similar processes on the same subject matter seeking the same or similar relief at the same time and without staying or drawing one or more of the actions. See TORIOLA & ORS V. WILLIAMS (1982) NSCC 187 AT 189.
The subsequent action(s) which constitute(s) the abuse is/are liable to be appropriately punished with a dismissal, see DINGYADI & ANR V. INEC & ORS (2011) LPELR – 950 (SC).
PER WAMBAI, JC.A.

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgement): This is a motion on notice brought pursuant to Order 6 Rule 9 of the Court of Appeal Rules 2022 dated the 30th day of September, 2022 praying for the following orders:
“1. AN ORDER of this Honourable Court striking/dismissing APPEAL NO. CA/K/363/2015 between National Ear Care Centre v M. E. Asuku & 56 Ors for lack of jurisdiction.
2. AN ORDER if this Honourable Court striking out/dismissing APPEAL NO. CA/K/363/2015 Between National Ear Care Centre v M. E. Asuku & 56 Ors as same has become academic.
3. AND for such other order or orders as this honourable Court may deem fit to make in the circumstances.”

The grounds upon which the Motion is brought are:
“1. Houses Nos. GCC1-6 I & J known as Nos. 1, 2, 3, 4, 5 and 6 Golf Course Road, Kaduna which are the subject matter of this Appeal have been demolished by the Kaduna State Government to make way for expansion and dualization of Golf Course Road, Kaduna;
2. The Appellant is alleging that the houses belong to the Kaduna State Government through the Kaduna State Development and Properties Company (“KSDPS”), its investment vehicle.
3. The ownership of the houses has undergone several transfers from Ahmadu Bello University Teaching Hospital to the 44th – 49th Respondents who later sold to private individuals before the subsequent demolition;
4. The Appellant does not have locus to claim the houses having admitted by its pleadings before the trial Court that the houses belong to Kaduna State Government;
5. And if the houses belong to the Kaduna State Government as alleged by the Appellant and they were eventually demolished by the same Kaduna State Government to make way for road expansion, neither the Appellant, nor the 44th – 49th Respondents is entitled to compensation; and
6. The appeal has become an academic exercise and is liable to be struck out and dismissed for lacking merit.”

​The application was supported by a 6 paragraph affidavit deposed to on the 30th day of September, 2022 by Faith Nnamani. Also attached thereto is a Written Address in support also filed on the 30th day of September 2022. In the said written address, two issues for determination were raised as follows:
1.The Appellant having admitted in its counterclaim that the said houses subject of this appeal were gifted to it by the Kaduna State Government and the Kaduna State Government having not appealed against the judgment of the trial Court, the Appellant has a right of appeal?
2. Whether or not this appeal has become academic in view of the fact that the subject matter has been destroyed?

On issue one, it was argued that the right of appeal as enshrined in Section 241, 242 and 243 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) inures to only those mentioned under the sections. The case of ALL PROGRESSIVE CONGRESS & ANOR VS. ALHAJI ABU ADEJARE GBADAMOSI & ANOR (2022) LPELR – 58083 (CA) was referred to. It was submitted that a person can only appeal against a decision if he is directly aggrieved by the decision and not a meddlesome interloper who wants to cry more than the bereaved. It was then argued that the judgment affected only the 55th and 56th Respondent who did not appeal against that decision and that the Appellant is a rabble-rouser meddlesome interloper who wants to reap where it did not sow.

​It was then submitted that the Appellant having admitted by its counterclaim that these houses belong to the Kaduna State Government, lacks the locus standi to appeal on behalf of the 55th and 56th Respondents when the 55th and 56th Respondents did not appeal against the judgment. It was submitted further that the 55th and 56th Respondents having accepted that the houses belong to the hospital and did not form part of the properties handed over by the Federal Government, the Appellant who is claiming based on the claims of the 55th and 56th Respondents has lost the right to claim ownership of the said houses. The case of MOBIL PRODUCING (NIG) UNLIMITED & ANOR VS. MONOKPO & ANOR (2003) LPELR – 1886 (SC) was cited in support.

​On the second issue, it was argued that houses GCCI 1 – 6 Golf Course Road, Kaduna, which are the subject matter of this appeal have been demolished by the Kaduna State Government to make way for the expansion and dualization of the Golf Course Road, Kaduna and as such the appeal has become academic since the subject matter has been destroyed. The cases of PLATEAU STATE GOVERNMENT VS. ATTORNEY GENERAL OF THE FEDERATION (2006) 3 NWLR (PT. 967) PP. 364 and APC VS. ENWEREM & ORS (2022) LPELR – 57816 (SC) were relied on. It was then submitted that the only live issue is the issue of compensation and that since the Kaduna State Government is the owner of the houses as alleged by the Appellant, and it was the same Kaduna State Government that demolished the houses for the purpose of road expansion, it means that no compensation will be paid to anybody including the Appellant since it is a case of an owner of property destroying it to construct a road. The case of APC VS. ENWEREM & ORS (2022) LPELR – 57816 (SC) was cited in support.

On the whole, the Court was urged to dismiss the appeal with punitive cost.

The Respondent on its part, filed a 6 paragraph Counter-Affidavit deposed to on the 12th day of October, 2022 by Lafifat Sanusi and one document marked as Exhibit A was attached to the said Counter-Affidavit. Also attached to the Counter-Affidavit was a Written Address dated the 12th day of October, 2022. In the said written address, the following 3 (three) issues were formulated for determination:
1. Whether in the circumstances of this case, the 1st–43rd Respondents/Applicants are not liable of abuse of Court process?
2. Whether the Appellant has interest in the subject matter of this appeal as to have been affected by the judgment of the trial Court?
3. Whether this appeal has become academic by reason of acquisition of a section of the subject matter of this appeal by the Kaduna State Government?

On issue one, it was submitted that the 1st – 43rd Respondents/Applicants are liable of abuse of Court process for adopting two similar processes to exercise the same right. The case of LADOJA VS. AJIMOBI & ORS (2016) LPELR – 40658 (SC). It was then submitted that counsel for the 1st – 43rd Respondents/Applicants first filed a Notice of Preliminary Objection challenging the competence of the instant appeal on the ground that (a) the Appellants lack the locus standi to institute this appeal and (b) that the appeal has become academic and spent. That upon being served with the said brief of argument, Counsel opposed the preliminary objection and argued same in the Appellant’s reply brief. However, that the Counsel to the 1st – 43rd Respondents/Applicants having been served with the reply quickly filed the instant application seeking the same reliefs based on the same grounds and supported by the same argument as contained in the Notice of Preliminary Objection. It was then submitted that the consequence of a process which abuses the process of Court is dismissal. The case of NWOSU VS. PDP & ORS (2018) LPELR – 44386 (SC) was relied upon in support.

On issue two, it was argued that contrary to the submission of learned counsel for the 1st-43rd Respondents/Applicants, the Appellant’s interest in the subject matter of this appeal and how same was affected by the judgment of the trial Court is demonstrated by the grounds of appeal as contained in the Appellant’s Amended Notice of Appeal. Additionally, it was submitted that in demonstrating how it acquired its interest in the subject matter of this appeal, the Appellant tendered Exhibit M as proof of gift/allocation. Furthermore, it was submitted that the 55th and 56th Respondents who represented the Kaduna State Government at the trial Court never denied the pleadings and evidence on the issue of the gift nor did they counter-claim. It was then contended that the 55th and 56th Respondents’ interest in the subject matter of this appeal terminated or subsided from the time the Kaduna State Government gifted the houses to the Appellant. Finally, learned counsel for the Appellant/Respondent distinguished the case of ALL PROGRESS CONGRESS & ANOR VS. ALHAJI ABU ADEJARE GBADAMOSI & ANOR (SUPRA) relied upon by the Respondents/Applicants from the instant case.

​On issue three, it was argued that acquiring a section of the land on which houses Nos. GCC1 1 – 6 I and J known as Nos. 1, 2, 3, 4, 5 and 6 Golf Course Road were built by the Kaduna State Government does not automatically truncate the outcome of this appeal as the Constitution of the Federal Republic of Nigeria, 1999 (as amended) mandates the government to pay compensation to owners of landed property forcefully acquired by it. It was submitted further that the Counter Affidavit deposed to by the legal officer of the Appellant states categorically that the Kaduna State Government only acquired a section of the land and is planning to pay compensation to the successful party upon determination of this appeal, and that there is a section of the land not acquired by the government on which a private individual has started digging foundation despite the pendency of this suit.

On the whole, the Court was urged to dismiss the application for lack of merit.

RESOLUTION OF THE ISSUES
I have read carefully and summarized the arguments of learned counsel to the parties contained in their respective written addresses. Looking at the issues for determination and the arguments proffered thereon, the attention of this Court has been drawn to the argument of the learned Respondents’ Counsel on the issue of abuse of Court process which is a jurisdictional one. Flowing from the trite position of law that issues of jurisdiction should be determined first, I shall now go ahead and determine the issue of whether in the circumstances of this case, the 1st – 43rd Respondents/Applicants are not liable for abuse of Court process?

​I have looked at the processes filed before this Court and it is clear to me that the Applicants had filed a Notice of Preliminary Objection challenging the competence of the appeal and that the appeal has become academic and spent which was argued in the Respondents’ Brief of Argument.

The issues for determination argued in the written address in support of the Motion on Notice filed by the 1st – 43rd Respondents/Applicants are as follows:
1. The Appellant having admitted in its counterclaim that the said houses subject of this appeal were gifted to it by the Kaduna State Government and the Kaduna State Government having not appealed against the judgment of the trial Court, the Appellant has a right of appeal?
2. Whether or not this appeal has become academic in view of the fact that the subject matter has been destroyed?

​On the other hand, the Notice of Preliminary Objection filed by the 1st – 43rd Respondents/Applicants is reproduced hereunder as follows:
a. The Appellant lacks the locus to appeal against the judgment of the trial Court since the 55th and 56th Respondents who allegedly gifted it Houses Nos. GCCI-1-6 I & J known as Nos. 1, 2, 3, 4, 5 and 6 Golf Course Road, Kaduna which are the subject matter of this appeal have accepted the judgment of the trial Court;
b. The judgment was against the internet of the 55th and 56th Respondents through whom the Appellant claimed to have derived its title to the said houses by virtue of a gift;
c. The 55th and 56th Respondent against whom the judgment was given accepted the judgment of the trial Court that Houses Nos. GCCI I-6 I & J known as Nos. 1, 2, 3, 4,5 and 6 Golf Course Road, Kaduna did not belong to it and did not form part of the core structures of the Hospital;
d. Houses Nos. GCCI I-6 I & J known as Nos. 1, 2, 3, 4,5 and 6 Golf Course Road, Kaduna which are the subject matter of this appeal have been demolished by the Kaduna State Government to make way for expansion and dualization of Golf Course Road, Kaduna.
e. The Appellant is alleging that the houses belong to the Kaduna State Government through the Kaduna State Development and Properties Company (KSDPC) its investment vehicle, even though no evidence was led to establish this claim and
f. The appeal has become an academic exercise and liable to be dismissed for lacking merit.

​Two legal issues were formulated from the grounds above as follows:
i. The Appellant is not affected by the judgment
ii. The appeal has become academic as the subject matter of the appeal has been destroyed.

Looking at these arguments, it is clear that the arguments of the 1st – 43rd Respondents seek to achieve the same result. The argument does not have to be word for word, rather it is sufficient that the 1st – 43rd Respondents intended to achieve same result from this Court and in my opinion, it is clear from the arguments in both applications that the 1st – 43rd Respondents/Applicants seeks to achieve same result.

The concept of abuse of Court process takes different forms and it is imprecise. It involves circumstances and situations of infinite variety and conditions. But a common feature of abuse of Court process is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. One of such circumstance is where a Court process is premised on frivolity or recklessness. See generally, the cases of SARAKI VS. KOTOYE (1992) 9 NWLR (PT. 264) PG. 156; OKOROMADU VS. OKOROMADU (1977) 3 SC 21; OYEGBOLA VS. ESSO WEST AFRICA INC. (1966) 1 ALL NLR 170; ARUBO VS. AIYELERU (1993) 3 NWLR (PT. 280) PG. 126 and OGOEJEOFO VS. OGOEJEOFO (2006) 3 NWLR (PT. 966) PG. 205.

I have microscopically perused the processes filed before this Court and I agree with the argument of the Appellant/Respondent that this motion filed by the 1st – 43rd Respondents constitutes an abuse of Court process. It is trite that where a Court comes to the conclusion that its process has been abused, the appropriate order to make in the circumstance is one of dismissal of the process. See the cases of CHIEF ARUBO VS. AIYELERU (1993) 3 NWLR (PT. 260) 126 and KODE VS. ALHAJI YUSSUF (2001) 4 NWLR (PT. 703) 392; (2001) 3 SCM 62.

​Before I conclude, this ruling will not be complete without registering my displeasure with the learned counsel for the 1st – 43rd Respondents who as a minister in the temple of justice, should have known not to bring unnecessary applications before the Court. Why would counsel bring this application when there already exists a Notice of Preliminary Objection on same issue for determination yet to be determined by the Court? This action smacks of abuse of this Court’s process and a waste of the precious time of this Court. Counsel, as it is presumed should know the law and as an officer of Court should know better and should not do or perform any act which may amount to an abuse of the process of the Court. I shall say no more on the issue.

In the circumstances, I hold that this application lacks merit and same is therefore hereby dismissed. I award the sum of N50,000 (Fifty Thousand Naira) as cost against the Counsel to the 1st – 43rd Respondents Counsel, Mohammed Kabir Abdullahi in favour of the Appellant.

AMINA AUDI WAMBAI, J.C.A.: I have read the lead ruling just delivered by my learned brother, Mohammed Baba Idris, JCA and I am in agreement that the motion of the 1st – 43rd Respondents/Applicants filed on 30th September 2022 while the Preliminary Objection to the Appellant’s appeal on similar grounds and seeking virtually the same reliefs is still pending constitutes an abuse of Court process.

​It is an abuse of Court process where as in the instant appeal a party initiates, institutes and prosecutes two or more similar processes on the same subject matter seeking the same or similar relief at the same time and without staying or drawing one or more of the actions. See TORIOLA & ORS V. WILLIAMS (1982) NSCC 187 AT 189.
The subsequent action(s) which constitute(s) the abuse is/are liable to be appropriately punished with a dismissal, see DINGYADI & ANR V. INEC & ORS (2011) LPELR – 950 (SC).

In the circumstance, I also dismiss the motion of the 1st – 43rd Respondents/applicants which constitutes a flagrant abuse of Court process and abide by the order as to cost.

ABUBAKAR MAHMUD TALBA, J.C.A.: I have had the benefit of reading in draft the lead ruling of my learned brother, MOHAMMED BABA IDRIS, JCA, and I agree with the reasoning and conclusion.

Appearances:

A. M. Salihu, Esq. For Appellant(s)

M. K. Abdullahi, Esq. – for 1st – 43rd Respondents

M. A. Jalomi, Esq. with him, E. D. Izu, Esq. – for 44th – 48th Respondents

S. S. Gadau, Esq. – for 49th Respondent

B. Y. Dangana, Esq. – for 50th – 52nd Respondents

S. Usman, Esq. – for 53rd, 55th – 56th Respondents For Respondent(s)