OKADA WONDERLAND LTD v. OMOKARO (2021)

OKADA WONDERLAND LTD v. OMOKARO

(2021)LCN/15532(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Thursday, June 03, 2021

CA/B/325/2012

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Between

OKADA WONDERLAND LIMITED (SUING BY HIS ATTORNEY, MR. FELIX IFARAYE IGIEBOR) APPELANT(S)

And

PHILIP OMOKARO RESPONDENT(S)

 

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering The Leading Judgment): This Appeal is against the Ruling/Decision of the Edo State High Court of Justice (hereinafter referred to as: “the Court below”). Sitting at the Benin Judicial Division, Coram: E. O. AHAMIOJE, J delivered on the 23rd day of March, 2012, wherein the Court below dismissed/struck out the Appellant’s claims brought against the Respondent as Defendant. The Ruling/decision is copied at pages 35 – 49 of the printed record. The case at the Court below brought by the Plaintiff now Appellant, against the Defendant now Respondent in Suit No: B/213/2003 is for:
1. That between the Plaintiff and the Defendant the Plaintiff has better title to all that parcel of land measuring 50 feet by 100 feet lying and situate in Ward 42 Use Quarters, Benin City, and obtained by virtue of a purchase by Plaintiff from Mr. Dominic Ekodon Esangbedo dated 22nd February, 1978, and thus entitled to apply and obtain a Certificate of Occupancy, within the letters, spirit and intendment of the Land Use Act, 1978.
​2. N5,000,000.00 (Five Million Naira) as exemplary and aggravated damages for acts of trespass to the parcel of land to be properly described in a survey plan to be filed with the Plaintiffs Statement of Claim.
3. An Order of perpetual injunction restraining the Defendant, by himself, agents, servants and/or privies from further acts of trespass.
See page 4 of the records of Appeal.

​The Appellant had earlier on in Suit No: B/383/2001 also sued the Defendant/Respondent immediate predecessor in title over the same piece or parcel of land. The claim of the Appellant in the earlier or first case in Suit No: B/383/2001 in his Amended Statement of Claim is as follows:
a. A declaration that the Plaintiff is the person entitled to apply for and be granted a Certificate of Occupancy in respect of the adjoining parcels of land measuring 200 feet by 400 feet, 200 feet by 400 feet, 200 feet by 200 feet and 500 feet by 1,000 feet more particularly marked in Beacon Nos. BDPA 4142, 4122, 4123 & 4124, delineated in Survey Plan No: 43 at page 43 in volume 474 of the Lands Registry in Benin, situated and lying at Ward 42, Use Quarters, Benin City which parcel of land the Defendants have trespassed unto.
b. The sum of N50,000,000.00 (Fifty Million Naira) against the Defendants jointly and severally being general, special and exemplary damages suffered by the Plaintiff as a result of the Defendants’ trespass onto the Plaintiff said parcel of land.
c. An Order of perpetual injunction restraining the Defendants by themselves their agents, servants and privies from committing further acts of trespass on Plaintiffs said parcels of land. I refer the Court to page 12 of the record of Appeal.

When the two cases (Suit No: B/383/2001 & suit No: B/212/2003) were pending at the Edo State High Courts between the same parties and their privies with the same subject matter and issues, the Defendant/Respondent brought an application before the lower Court to dismiss this suit as same had amounted to an abuse of Court process. See page 8 of the record of Appeal. The Court below in its ruling granted the application and dismissed Suit No: B/213/2003 as abuse of Court process. See pages 35 to 49 of the record of Appeal.

​The Appellant being dissatisfied with the Ruling of the trial Court has Appealed to this Court vide Notice of Appeal dated and filed 24th July, 2020, containing 18 Grounds of Appeal and respectfully seeks the reliefs set – out therein. Notice of Appeal is copied at pages 50 to 51 of the printed record.

ISSUES FOR DETERMINATION:
The Appellant nominated a total of four (4) issues for the determination of this Appeal as follows:
1. Whether or not the Court considered at all or adequately the facts contained in the affidavit in opposition to the application under reference, as to be assured of a fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria 1999, (as amended)?
2. Whether or not the application under reference still had life and subsisting for which the Court can adjudicate upon and/or whether the Court was not functus officio, qua the application?
3. Whether or not, the issue of abuse of the Court’s processes was pleaded or sufficiently pleaded by the Respondent in accordance with the Edo State High Court (Civil Procedure) Rules as a defence to the claims of the Appellant as Plaintiff in the lower Court.
4. Assuming, but not conceding that the issues (i) – (iii) are resolved against the Appellant, whether or not the factors constituting an abuse of Court process exist in relation to the case formulated by the Appellant as Plaintiff as to warrant an order of dismissal.

On the part of the Respondent, a total of four (4) issues were nominated for the determination of this Appeal, thus:
1. Whether or not the Plaintiff/Appellant was given fair hearing to a motion filed by the Defendant/Respondent dated 28-1-2008 which gave rise to the dismissal order upon which this appeal is lodged.
2. Whether the Court was functus officio to have heard the application.
3. Whether or not the issue of abuse of Court processes being an issue of law need to be pleaded or sufficiently pleaded by the Respondent and whether the trial Court was right in dismissing this case as abuse of Court process in view of the pendency of this case (Suit No: B/213/2003) and Suit No: B/383/2001 as the two cases have the same parties, their privies and subject matter.
4. Whether or not the factor constituting an abuse of Court Processes exist in relation to the case formulated by the Appellant as Plaintiff to warrant an order of dismissal.

​Upon a close examination of the issues nominated across board by learned Counsel to the parties, it is rather clear that the issues nominated by both sides to the dispute, are identical except for reasons of differences in semantics. However, the issues nominated by the Appellant shall be the basis for the determination of this Appeal due to reasons of comprehensiveness. It is quite clear that the entire issues nominated by the Respondent are easily subsumed in the issues nominated by the Appellant. The brief of Argument of the Appellant, dated the 24-6-2015 was filed on the same date and settled by O. M. JAMGBADI ESQ.,. On the part of the Respondent, his brief of Argument dated the 5-10-2015 and filed on the same date was settled by P. O. UWAYA, ESQ.,. The Appellant’s Amended Reply Brief of Argument to the Respondent’s Brief was dated 22-2-2021 and filed on the 24-2-2021, but deemed properly filed on the 18-3-2021. On the 18-3-2021 at the hearing of this Appeal, learned Counsel for the parties adopted their respective briefs of argument on behalf of their clients with each urging upon this Court to resolve this Appeal in favour of their sides.

SUBMISSIONS OF LEARNED COUNSEL:
APPELLANT:
ISSUE ONE:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Whether or not the Court considered at all or adequately, the facts contained in the affidavit in opposition to the application under reference, as to be assured of a fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria 1999, (as amended)?

Counsel contended that, in the legal bid by the Appellant to persuade the Court below not to accede to the request of the Respondent to terminate the case on the ground that the same constituted an abuse of the process of the Court, the Appellant filed an affidavit in opposition. See pages 17-19 of the record of appeal. Counsel said that, in the Appellant’s written submission at the Court below he relied on his affidavit filed in opposition. (See page 29 of the record of appeal).

It was further contended by Counsel that the Respondent did not raise in his pleadings the issue, which formed the basis of the ruling complained of and that no issue was joined by the parties that the action did or did not constitute an abuse of Court process. He argued that parties are bound by their pleadings and that the pleadings will regulate the issues before the Court. See UKPAKARA vs. EBEVUHE (1996) 40/41 page 1481 at 1494 H. Counsel also referred to the Appellant’s claim as contained in paragraph 7 of the statement of claim wherein he alleged that he noticed the Respondent’s act of trespass and his agents in 2003, precisely the 1st March, 2003 almost two years after the institution of the related case in suit No: B/383/2001- OKADA WONDERLAND LTD vs. IZIEGBE OMO-EDIGIN & ORS, where the Respondent in paragraph 3 of its pleading averred he acquired his land from Mr. IZIEGBE OMOROGBE EDIGIN and that the land he acquired from the said Mr. EDIGIN measures 100ft by 100ft. Counsel referred Court to page 6 of the records of Appeal.

​It was further contended by Counsel, that the Respondent in his oral submission before IMOEDEMHE, J opined that the fact that we did not state when he bought from the 1st defendant in the other suit is immaterial to their application. See page 20F of the record of appeal. Against the backdrop of this position, Counsel submitted that the date of Respondent’s acquisition of the land is very material to a just determination of the issue whether this case on Appeal, as constituted amounted to an abuse of the process of the Court or not. He argued that the Court below appeared not to have taken into account the averment of the Appellant in paragraph 7 of the statement of claim, which appeared thus: “That sometimes in the year 2003, and/or about the 1st day of March, 2003, the defendant’s acts of trespass on its land was noticed by it”. (See page 3 of the record of appeal).

Learned Counsel also argued that the Appellant would have prejudiced his interest on the land in dispute if it had failed to challenge the purchaser for value who claimed to derive title from 1st defendant in the earlier case, because, once the 1st defendant divested himself of his title, albeit at a date unknown, it was the new buyer that is the proper party to be sued. SeeAMUDA vs. AJOBO (1995) 17 NWLR (PT. 406) 170, wherein this Court held thus:
“Once a party had disposed his interest in land, he has no interest whatsoever in the land to protect or defend and he is therefore not the proper party to be sued in respect of a dispute as to the title of the land but the person to whom the land was devolved.”

See also SANYAOLU vs. COKER (1983) 3 SC page 124 at 163 – 164. The further contention of Counsel is that, the defence raised by the Respondent was that the land in dispute was at Use Quarters, Benin-City and that he did not admit the Appellant’s description of the land and did not plead that the land for which he had been sued was the same land for which his supposed vendor had been sued in the earlier case of B/383/01. In addition, Counsel contended that he did not plead that his vendor had any remainder interest in the land he bought, which was the subject matter of the case on Appeal and did not relate the land he acquired to any land, the subject matter of dispute in the related case.

Counsel also argued that the Respondent indeed, put the identity of the land in dispute in paragraphs 2, 6, 7, 8, 9 and 10 of the statement of defence and that upon a very calm view of the pleadings and the issues defined therein, the dismissal by the Court below of the suit amounted to a denial of fair hearing. He said that all these matters were also raised in the opposing affidavit of the Appellant, which were also ignored by the Court below.

It was further argued by Counsel that the corollary of the above is that, in law, a party is not allowed to raise a case different from his pleadings, without an amendment of his pleadings. See SONEKAN vs. MILITARY GOV. OGUN (1995) 26 LRCN Pg. 110 at 122 – 123 where the Supreme Court restated the law thus;
“Each party is free to formulate his own pleadings case and once formulated, he is bound by this and cannot without necessary amendment urge a different case from that formulated in his pleadings.”

Learned Counsel further contended that, where a Court in its decision failed to address the pith and substance of a case as formulated by a party or same is improperly addressed, the Appellate Court will intervene. He argued that Section 16 of the Court of Appeal Act, Laws of the Republic of Nigeria, 2004 allows this.

On the test of fair hearing, Counsel cited the case of ASHIRU vs. AYOADE (2006) 6 NWLR (PT. 976) 405 at 430, where the Court stated
“In the determination of an allegation of denial of fair hearing as in this case, the complainant need not even establish that the proceedings complained of did in fact work to his prejudice. The very possibility of some miscarriage of justice is enough to vitiate the proceedings.”

See also, OLATUNBOSUN vs. NISER (1988) 3 NWLR (PT. 80) 25. Counsel urged this Court to resolve this issue in favour of the Appellant and thus allow the appeal on this score.

ISSUE TWO:
Whether or not the application under reference still had life and subsisting for which the Court can adjudicate upon and/or whether the Court was not functus officio, qua the application?

In arguing this issue, learned Appellant’s Counsel contended that the learned trial Judge, IMOEDEMHE, J along the line ordered the case to be returned to the Chief Judge so that same may be reconsolidated with the related case already pending in High Court 10 before AHAMIOJE, J. he said that this order was made by the said Court at a time when none of the Counsel in this matter had appeared before IMOEDEMHE, J, knowing the stage the related case had reached.

This further contention of Counsel was that the Court’s order was made after Respondent’s Counsel had finished his submission in urging the Court to dismiss the entire case. The submission of counsel therefore is that, the order so made is a decision on the application within the meaning and intendment of Sections 277 and 318(1) of the  Constitution of the Federal Republic of Nigeria, 1999, as amended. He said that upon the pronouncement of the said order, there was no life or nothing left in the Respondent’s application dated the 28th January, 2008, as the Court became functus officio thereafter. Counsel cited the case of BALOGUN vs. ADEJOBI (1995) 2 NWLR (PT. 376) 131 at 161; OYAWOLE vs. SHEHU (1995) 8 NWLR (PT. 414) 414.

According to learned Counsel, the Respondent’s Counsel did not object to the recommendation for a transfer as far as the printed record is concerned, he offered no objection. The argument of Counsel is that the implication was that the Respondent’s Counsel waived his rights on the merit of his application, which he had moved. Counsel added that having so done, it did not matter if on the record it was not stated that the application had been withdrawn by the Respondent, or that the Court had struck out the application. He enthused that an application may not necessarily be granted in the terms requested as the Court has discretion in the matter. Counsel also contended that, once that discretion has been exercised qua the application, the application is considered spent.

The argument of Counsel is that the Respondent abandoned his right to the success or failure of his application and that the Respondent voluntarily and intentionally surrendered and relinquished his right under the application and so cannot turn around to move the said application. See ONYEMOBI vs. PRESIDENT, O.C.C. (1995) (PT. 381) 50; ADIGUN vs. SECRETARY, IWO L.G. Page 1377 at 1395 CE. R. 4 where the apex Court per ACHIKE, J.S.C. had this to say on the subject:
“This Court, and any Court for that matter, which has fully determined the matter in controversy between the parties is rendered functus officio and any challenge to its judgment can only by way of an Appeal.”

​Counsel further cited the case of FAWEHINMI CONSTRUCTION CO. LTD. vs. OBAFEMI AWOLOWO UNIVERSITY (1998) 59 LRCN Page 3809 at 3822 FG where the apex Court per BELGORE, JSC had this to say on the subject:
“When a party has a right whether by way of agreement or under a statute he can exercise it at the earliest time and can equally waive it if the statutory right is not absolute and mandatory. The waiver must be clear and unambiguous like allowing all evidence to be taken or even decision taken before challenging the hearing. Such failure to take advantage must be so clear that there will be no other reasonable presumption than that the right is be let go.”

Counsel urged the Court to resolve this issue in favour of the Appellant and to consequently allow this Appeal on this score.

ISSUE THREE:
Whether or not, the issue of abuse of the Court’s processes was pleaded or sufficiently pleaded by the Respondent in accordance with the Edo State High Court (Civil Procedure) Rules as a defence to the claims of the Appellant as Plaintiff in the lower Court?

In arguing this Appeal, Counsel contended that when the Respondent filed his application, which decision is now appealed against, the governing rules of the lower Court was the Edo State High Court (Civil Procedure) Rules, 1988, but that when the application and decision returned, the operating rules of the lower Court was the Edo State High Court (Civil Procedure) Rules, 2012. It was further contended that, the rules governing pleadings in the former case was Order 25 Rule 17 while in the latter is Order 15, Rule 7(1), which learned Counsel took his time to reproduce, thus;
Order 25 Rule 17 of the 1988 Rules of Court provides thus;
“The defence of the defendant shall not debar him at the hearing from disproving any allegation of the plaintiff not admitted by the defence, or from giving evidence in support of a defence not expressly set up by the defence, except where the defence is such as in the opinion of the Court, ought to have been expressly set up by the defence or is inconsistent with the statements thereof, or is, in the opinion of the Court, likely to take the plaintiff by surprise or to raise new issues not fairly arising out of the pleadings as they stand and such as the plaintiff ought not to be then called upon meet.”

Order 15, Rule 7(1) of the 2012 Rules of the Court below provides, thus:
“All grounds of defence or reply, which makes an action not maintainable or if not raised will take the opposite party by surprise or will raise issues of facts not arising from the proceeding, shall be specifically pleaded”.

The contention of learned Counsel is that, the rules of Court are meant to be obeyed and that the two provisions reproduced point to the fact that a party pleading must specifically plead facts, which make a case not maintainable in his pleadings. Counsel therefore argued that in the pleadings of the Respondent, there is no where raised the issue specifically that the action as constituted was not maintainable, raising facts pointing to the issue, that the action as formulated and in relation to an existing case constituted amounts to an abuse of process of the Court. Counsel cited the cases of ASUQUO vs. ETIM (1995) 7 NWLR (PT. 405) 303; 7UP BOTTLING CO. LTD. vs. ABIOLA & SONS (NIG.) LTD. (1995) 3 NWLR (PT. 383) 257. Counsel urged this Court to resolve this issue in favour of the Appellant.

ISSUE FOUR:
Assuming, but not conceding that the issues (i) – (iii) are resolved against the Appellant, whether or not the factors constituting an abuse of Court process exist in relation to the case formulated by the Appellant as Plaintiff as to warrant an order of dismissal.

​In arguing this issue, learned Counsel began by adopting his arguments already canvassed in previous issues and in addition, submitted that in taking a careful look at the pleadings in the instant case as exchanged by the parties, it is clear that one of the salient conditions for dismissing an action as constituting an abuse of Court’s process was not made out and the Court below did not properly address itself to the condition. The salient condition Counsel contended is that, the issues in controversy must be the same. He said that the Respondent pleaded his root of title through IZIENGBE, who was the 1st defendant in the related case but did not admit the description of the land trespass upon. According to Counsel, a dispassionate reading of paragraph 2 of the statement of defence is very clear on the issue, which he said reads thus:
“The defendant admits paragraph 8 of the statement of claim only to the extent that the land in dispute is situate at Use Quarters, Benin-City and deny all other averment contained therein.”

In the related case, upon which the Court rested its view that the issues were the same, Counsel had argued in the amended statement of claim per paragraph 10 and pleaded inter-alia, at page 11 of the records of appeal thus;
“That as of date, the various Defendants have trespassed onto the said plaintiff’s parcel of adjoining land to the extent of 9 plots of 100ft x 100 ft each…”

As far as Counsel is concerned, the defendant having not pleaded that what he purchased from his vendor was one of the nine plots of 100 feet by 100ft in issue in the related case, that the subject matter and the issues in both cases were the same. He argued that, an action in trespass in 2001 in respect of 9 plots of land cannot be said to be the same in an action for trespass in 2003 for a plot of 100ft by 100ft that had by evidence not been shown to be part of the plots in contention in the case instituted in 2001. What is more, Counsel argued that the Appellant sued the Respondent for acts of trespass. Counsel contended that trespass is an actionable wrong against possession and that the Appellant by his pleadings said the Respondent trespassed on its land on the 1st March, 2003. It was further argued that every unlawful entry by anybody unto the land in the possession of another constitutes an actionable wrong, and thus liable to be sued for trespass. He cited the case of ONAGORUWA vs. ADENIJI (1993) 5 NWLR (PT. 293) 350, quoting with approval, the judicial definition of COLERIDGE C. J. in the English case of ELLIS vs. LOFTUS IRON CO. (1724) LR 10 cp. Page 10 at 12.
“…if a defendant placed a part of his foot on the plaintiff’s land unlawfully, it is in law as much a trespass as if he had walked half a mile on it”.

Counsel urged this Court to resolve this issue in favour of the Appellant.

RESPONDENT:
ISSUE 1:
Whether or not the Plaintiff/Appellant was given fair hearing to a motion filed by the Defendant/Respondent dated 28-1-2008 which gave rise to the dismissal order upon which this appeal is lodged?

In arguing this issue, learned Respondent’s Counsel submitted that the Plaintiff/Appellant was given fair hearing by its counter affidavit, which it filed on 9-7-2009. Counsel referred to pages 17 and 18 of the record of appeal and further submitted that the Plaintiff/Appellant was also given fair hearing when it filed and argued its written address in support of its Counter Affidavit. See pages 28 to 32 of the record of appeal.

​It was also submitted that issues were joined by the parties when the Defendant/Respondent filed a motion on notice and affidavit for preliminary objection to the jurisdiction of Court along with a written address at pages 24 to 27 of the record of appeal and the Plaintiff/Appellant filed its counter affidavit accompanied with a written address. Counsel argued in addition that the term: “fair hearing” has been defined to mean equal opportunities given to both parties. See the Supreme Court case of AUGUSTUS A. NDUKABA vs. CHIEF SILAS M. KOLOMO & ANOR. (2005) All FWLR (PT. 284) 1602 particularly at pages 1616 paragraphs C-F Ratio 1.

Learned Counsel contended that the Plaintiff/Appellant having taking steps in filing its Counter Affidavit to Defendant/Respondent motion on notice dated 28th January, 2008, and argued same cannot be heard to be complaining of fair hearing. Counsel referred Court to page 5 paragraphs 4.01 and 6.01 of the brief of argument of the Appellant where the Appellant copiously admitted that it filed a Counter Affidavit to the Plaintiff’s motion on notice and argued same. Counsel therefore submitted that all the authorities cited and relied upon by the Appellant on this issue are not in support of its case. He urged the Court to resolve this issue in favour of the Respondent.

ISSUE 2:
Whether the Court was functus officio to have heard the application?

In arguing this issue, learned Counsel submitted that the Court below was not functus officio, Counsel contended that when the Court made the order for the case file to be transferred to the Chief Judge for consolidation, the Court did not pronounce on the application dated January, 2008 and that the Court therefore did not also rule on the pending application. Counsel referred to page 41 lines 18 to 22 and page 42 lines 1 to 17 of record of appeal and cited the case of AYO vs. TIME AND TIDE TRANSPORT CO. LTD. (2009) ALL FWLR (PT.455) 1742 particularly at page 1750 paragraphs C-D.

The contention of learned Counsel is that, there are three things that may happen to an application seeking to dismiss a case:
1. It is either granted or
2. It is refused and/or struck out or
3. It may be withdrawn by the applicants

The argument of Counsel is that in this case, none of the above provisions applied and that it then means that the application dated 28th January, 2008 was still subsisting, alive and extant at the time it was argued and opposed to by the Plaintiff/Appellant before the Court below subsequently granted the application. According to learned Counsel, the cases cited and relied upon by the Appellant in this issue do not apply.
It was further contended that the Court below only made an order for the case to be transferred to the Chief Judge for re-assignment with the aim that if the cases are consolidated, the motion can be argued alongside the other case since the parties and the subject matter are the same. He argued that this does not amount to a waiver of right to continue the argument. Counsel referred to page 41 lines 12 to page 42 lines 1 to 18 of the record of appeal and further argued that in this case, the application of the Respondent was still extant and alive because, it has not been argued before it was transferred to the new panel, which gave its ruling on it.

Learned Counsel also contended that on the 27-4-2009 when suit No. B/213/2003 came up for mention the Appellant’s Counsel was in Court for the Plaintiff and told the Court below that:
“This is a transferred matter. Having regard to the order of his Lordship, I believe that the salient facts were not made to him regarding the stage reached in Suit No. B/383/2001, where there has been part judgment for 53 plots of land. We are only contesting 16 parcels of land. To consolidate this suit will be to reverse the steps already taken in this Court notwithstanding the stance of your Learned Brother”.

The argument of learned Counsel is that, based on the submission of the Appellant’s Counsel that he does not want a consolidation of the two suits, the Court subsequently ordered as follows:
“The application of the learned counsel for the Plaintiff is granted. This suit shall be determined independently”.
See page 46 of the records of appeal.

Learned Counsel therefore submitted that Counsel cannot approbate and reprobate over an issue. He said that the Appellant’s Counsel having opposed consolidation of Suit No. B/383/2001 and B/213/2003 cannot be heard to be arguing that the Court is functus officio or that he was not given fair hearing when the two cases were never consolidated and no application was made for the cases to be consolidated. He further argued that the submission of the Appellant’s Counsel that the cases were consolidated is not tenable in law. Counsel urged this Court to resolve issue 2 in favour of the Defendant/Respondent and accordingly uphold the decision of the lower Court.

ISSUE 3:
Whether or not the issue of abuse of Court processes being an issue of law need to be pleaded or sufficiently pleaded by the Respondent and whether the trial Court was right in dismissing this case as abuse of Court process in view of the pendency of this case (Suit No: B/213/2003) and Suit No: B/383/2001 as the two cases have the same parties, their privies and subject matter?

As it has to do with the question of abuse of Court processes, learned Counsel argued that it is an issue of law, which could be raised for the first time on appeal and that the position of the law is that parties are expected to plead facts and not law. He argued that the essence of pleadings is to narrow down the issue in controversy between the parties in a case and that the issue of abuse of Court process is not an issue in controversy between the parties before they came to the Court. Rather, that the issue of abuse of Court process will normally result after pleadings have been filed and exchange by parties.

​Counsel contended that a defendant who conceives on the fact of the pleadings of the Claimant that he has a good ground of law, which if raised, will determine the action is entitled to raise such ground of law and that a point of law or defence can be raised by preliminary objection or in a motion on notice.

Counsel further contended that the purpose of giving a notice of preliminary objection is to give the adversary an opportunity of reacting to the objection and to avoid any surprise. See the Supreme Court case of ALHAJI KABIRU ABUBAKAR & ANOR vs. JOHN JOSEPH & ANOR (2008) ALL FWLR (PT. 432) page 1065 particularly at page 1098 paragraphs F – G or R. 13. In the instant case, Counsel opined that a motion on notice was filed and served on the Appellant, which he responded to by filing a Counter Affidavit and a written address in support of same. Counsel therefore submitted that the purport of Order 25 Rule 17 of the Edo State High Court (Civil Procedure) Rules, 1988 and Order 15 Rule 7(1) of the Edo State High Court (Civil Procedure) Rules, 2012 are to the effect that only statement of facts are to be pleaded.

Although, conceded to the argument of the Appellant to the extent only that only Statement of facts are to be pleaded, he was however, quick in submitting that the issue of abuse of Court process is nevertheless that of an issue of law, which requires no pleading before a party can have it raised. Counsel argued that as an issue of law, it could be raised at the Appellate Court for the first time on Appeal. Counsel therefore urged this Court to discountenance the submissions and authorities cited by Counsel in this matter on this issue.

The submission of learned Counsel therefore, is that Court below was right when it dismissed this suit the subject matter of this appeal as an abuse of Court process. See page 45 lines 11 to page 46 lines 1 – 15 of the record of appeal. It was further contended by Counsel that the case of the Defendant/Respondent is that the two cases were never consolidated as the Plaintiff/Appellant through his oral argument opposed the consolidation saying that he had got judgment in 53 plots and that what was being contested at the material time were for the remaining 16 plots and that to consolidate will be to reverse the steps already taken in Court. See page 45 lines 17 to page 48 of the record of appeal.

The contention of Counsel is that, since no order was made to consolidate this suit with Suit No. B/383/2001, this suit amounts to an abuse of Court process. He defined an abuse of Court process to mean a multiplicity of action between same opponents and on the same subject matter and the issues to be decided are the same. See page 45, lines 10 to 16 of the record of appeal. Counsel cited the case of AFRICAN REINSURANCE CORPORATION vs. JDP CONSTRUCTION NIGERIA LTD. (2003) FWLR (PT. 153) page 251 particularly at page 270 paragraphs A- D.

On the submission of the Appellant that the Respondent did not raise in his pleading, the issues which formed the basis of the ruling, Counsel referred this Court to page 5 of the Appellant’s written brief of argument and submitted that an objection to the jurisdiction of Court can be raised at any time even the first time on Appeal. He further argued that, a point of law or defence can be raised on preliminary objection or in a motion if the point of law will be decisive of the whole litigation. Counsel referred to the case of OWNERS OF THE MV “ARABELLA” vs. N.A.I.C. (2008) ALL FWLR (PT. 443) page 1208 particularly at page 1232 Paragraphs D – H.

Learned Counsel also contended that the issue of abuse of Court process is fundamental, which goes to the jurisdiction of the Court to hear the matter. He also submitted that the Respondent does not need to plead the issue of jurisdiction before he can raise it by a motion on notice which was argued by both parties and the trial Court gave its ruling which forms the basis of this appeal. As far as Counsel is concerned, it is the Plaintiff’s case that determines the jurisdiction of the Court and not the affidavit of the Appellant as wrongly argued by the Appellant. See UMANAH vs. ATTAH (2007) ALL FWLR (PT. 346) page 402 particularly at page 434 paragraphs F – G.

It was also submitted by Counsel that, the authorities cited and relied upon by the Appellant on the issue of jurisdiction are not in support of its case and therefore urge this Court to discountenance the submission of the Appellant on this issue.

ISSUE 4:
Whether or not the factors constituting an abuse of Court Processes exist in relation to the case formulated by the Appellant as Plaintiff to warrant an order of dismissal?

​The submission of Counsel in arguing this issue is that the factors constituting an abuse of Court process existed in relation to the case formulated by the Plaintiff/Appellant to warrant an order of dismissal. He said that upon a calm perusal of paragraphs 4 & 5 of the Statement of Claim in suit No: B/213/2003 i.e. page 3 of the record of Appeal and paragraphs 4 & 5 of the Amended Statement of Claim in Suit No. B/383/2001 i.e. page 10 of the record of Appeal, will reveal that those paragraphs are the same. Counsel therefore reproduced the paragraphs for ease of reference, thus; Suit No. B/383/2001- Okada Wonderland Ltd (suing by its attorney – Mr. Felix Ifaraye Igiebor) vs. Mr. Iziegbe Omo – Edigin & Ors
Paragraph 4 therein:- The Plaintiff is the owner of adjoining parcels of land situate and lying at Ward 42, Use Quarters, Benin City, which parcel of land measure 200ftX 400 ft, 200ft X 400 ft, 200 ftX 200 ft and 500ft X 1,000ft respectively, containing a total of seventy (70) plots of 100ft X 100ft each.
Paragraph 5 therein:- The Plaintiff purchased the parcel of land in dispute from one Dominic Ekodun Esangbedo on 22nd of February, 1978.
Suit No B/21312003 – Okada Wonderland Ltd (suing its attorney Mr. Felix Ifaranye Igiebor) vs. Mr. Philip I. Omokaro.
Paragraph 4 therein:-
The Plaintiff avers that it is the owner of all lands/plots situate and lying at Ward 42, Use Quarters, Benin City, which measures 200ft X 400ft, (Two Hundred Feet by Four Hundred Feet) 200 ft X 400 ft, (Two Hundred Feet by Four Hundred Feet) 200ft X 200 ft, (Two Hundred Feet by Two Hundred Feet) and 500 ft X 1,000 ft, (Five Hundred Feet by One Thousand Feet) respectively containing plot numbering Seventy (70) of dimension of 100 ftX 100 ft (One Hundred Feet by one Hundred Feet).
Paragraphs 5 therein:-
The Plaintiff Company state that it acquired its interest on the whole Land from one Mr. Dominic Esangbedo on 22nd February, 1978. The contention of Counsel is that the Plaintiff sued the Defendant’s predecessor-in-title in Suit No. B/383/2001 and also sued the Defendant in another suit in Suit No: B/213/2003 over the said, same piece of Land. Counsel said that Counsel, they filed a notice of entry of appearance after leave was obtained and also filed a Statement of Defence on behalf of the Defendant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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He referred to pages 3, 4 & 5 of the record of Appeal and argued further that when they discovered that the Plaintiff had earlier on sued the Defendant’s predecessor in title in Suit No. B/383/2001, they then brought a motion on notice asking the Court for:-
“An Order dismissing or striking out this Suit as same constitutes an abuse of Court process. OR IN THE ALTERNATIVE, An Order staying proceedings in the suit pending the determination or to abide the result of Suit No: B/383/2001 – OKADA WONDERLAND LIMITED (Suing by his attorney Mr. Felix Ifaraye Igiebor) vs. MR. IZIEGBE OMO- EDIGIN & ORS pending in the High Court 10 Benin City.”

Counsel told Court that, at the point of moving the motion Relief No. ii above was withdrawn by Counsel. He referred to paragraph 1 of page 24 of the record of Appeal. Counsel said that the motion was supported by a five paragraphs affidavit wherein the deponent stated that the Plaintiff had earlier on in Suit No: B/383/2001 sued his predecessor-in-title and that his predecessor-in-title Mr. Iziegbe Omoregbe Edigin is the same person sued as the 1st Defendant in Suit No B/383/2001. Counsel referred to page 9 paragraphs 2 and 3 of the record of appeal. According to Counsel, the said Motion on Notice, Supporting Affidavits and Exhibit “A” i.e. Amended Statement of Claim in Suit No B/383/2001 were served on the Plaintiff/Appellant. See pages 10, 11, 12, 13, & 14 of the record of appeal. Learned Counsel told Court that the Plaintiff/Appellant filed his counter affidavit. And that Paragraphs 3 of the said Counter Affidavit states thus:
“That whilst B/383/2001 was filed and pending, the Defendant trespassed on the land now in dispute and he was the trespasser seen on the Land”.

See page 17 of the record of appeal.
While in Paragraph 4 of the said Counter Affidavit he states and I quote:
“That to the extent that Iziegbe Omoregbe Edigin (Defendant’s predecessor-in-title) has larger interest on the Land in dispute than he purportedly conveyed to the Defendant herein, hence, the retention of the said Omo-Edgin in Suit No B/383/20011”.

​Based on the forgoing, Counsel argued that the proper thing the Plaintiff/Appellant would have done was to join the alleged trespasser (Defendant) to the pending action i.e. Suit No: B/383/2001 instead of suing him separately in Suit No: B/213/2003, which constitutes an abuse of the Court process. Counsel referred this Court to page 46 lines 1 to 19 of the record of appeal where the Plaintiff/Appellant refused and objected to the consolidation of the two cases. He argued therefore that, the filing of Suit No: B/213/2003 while Suit No: B/383/2001 was still pending and subsisting is an abuse of Court process. See page 48 of the record of appeal. Counsel therefore urged this Court to refuse issue No. 4 as canvassed by the Plaintiff/Appellant.

RESOLUTION OF APPEAL
The first issue nominated for the determination of this Appeal deals with the question of whether or not the Court below considered at all or adequately, facts contained in the affidavit in opposition to the application under reference as to be assured of a fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria 1999, (as amended). In arguing this issue, Appellant’s Counsel contended that in opposition of the grant of the motion filed by the Respondent, the Appellant filed an affidavit in opposition, which the Appellant relied upon. See pages 17 -19 of the record of appeal and that there were no indications that the Court below accorded the parties a fair-hearing in the handling of the matter.

The question to perhaps, address here before resolving this issue one way or other, is whether the Appellant filed a Counter Affidavit in opposition of the grant of the motion on notice of the Respondent as defendant, urging the Court below to have the matter terminated in limine on the ground that the matter was an abuse of process? This question can only be rendered in the affirmative. Here is a situation, whereby Appellant’s own showing, filed a Counter Affidavit on the 9-7-2009 and cannot in all honesty claim not to have been given a fair hearing when it argued its written address in support of its Counter Affidavit. See pages 28 to 32 of the record of appeal.

​Here is a matter in which Learned Appellant’s Counsel seem to have made a heavy weather of the issue of fair-hearing where there happens to be no cause for any. The records show copiously that issues were joined by the parties when the Respondent filed a motion on notice and affidavit in support of a notice of preliminary objection to the jurisdiction of Court along with a written address at pages 24 to 27 of the record of appeal and the Appellant filed its Counter Affidavit accompanied with a written address. The expression: “Fair-hearing”, simply means giving equal opportunity to the parties to be heard in the litigation before the Court. See the case of MOHAMMED vs. KANO N. A. (1968) ALL NLR 411 AT 413 (Reprint) where the apex Court per ADEMOLA, CJN defined “fair-hearing” as thus:
“It has been suggested that a fair hearing does not mean a fair trial. We think that a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of fair hearing, it was suggested by counsel, is the impression of a reasonable person who was present at the trial whether from his observation; justice has been done in the case.”
​It is important to note that the right to fair hearing is a constitutionally guaranteed right under Section 36(1) of the Constitution of Nigeria, 1999 (as amended). The consequence of establishing a breach of fair hearing in any given proceedings is that it renders it a nullity, notwithstanding how meticulous the proceedings would have been or how sound the resultant decision would have been on the merit. They are all a nullity. Case book is replete with decided cases on this issue. The question of whether a right to fair hearing is breached or not is dependent on the facts and circumstances of each given case. In other words, whether the right to fair hearing was breached or not is a question of facts to be determined on the facts and circumstances placed before the Court. This is so because, fair hearing is primarily a matter of fact as it is only when the facts are ascertained that the law would be made to apply to the facts so established to see whether or not such established facts constituted a breach of the party’s right to fair hearing. See NEWSWATCH COMMUNICATIONS LIMITED vs. ALHAJI IBRAHIM ATTA (2006) 12 NWLR (PT. 993) 144.

​This Court is in agreement with learned Respondent’s Counsel that the Appellant having taking steps in filing its Counter Affidavit to the Respondent’s motion on notice dated 28th January, 2008, and argued same in Court, cannot be heard to complain of being denied a fair hearing. It is instructive to note that at page 5 paragraphs 4.01 and 6.01 of the brief of argument of the Appellant, he admitted quite copiously that it filed a Counter Affidavit to the Plaintiff’s motion on notice and argued same. Based on the foregoing, this Court therefore, finds it unable to agree with the Appellant that it was not accorded a fair hearing. The first issue is resolved in favour of the Respondent.

In respect of issue two, dealing with the question of whether the motion under reference still had any life in it and subsisting, for which the Court can adjudicate upon qua the motion, after the trial Judge along the line had ordered the case to be returned to the Chief Judge so that same may be consolidated with a sister case, the argument of Appellant’s Counsel is that, this being an order of Court made and which adorns the toga of a full-fledged decision under Sections 277 and 318(1) of the 1999 Constitution, as amended, automatically rendered the trial Court Functus Officio thereafter.

​The question that readily begs for an answer here is: whether the trial Court had by that order been rendered Functus Officio as postulated by Appellant’s Counsel?

A Court of law is said to be Functus Officio when its task is said to be performed with respect to a given matter pending before it. In the case of MOHAMMED vs. HUSSEINI (1998) 14 NWLR (PT. 584) 108 AT 163 the apex Court defined the expression, thus: “The Latin expression Functus Officio simply means: task performed”. What this translates in essence, is that once a Judge gives a decision or makes an order on a matter, he no longer has the competence or jurisdiction to give another decision or order on the same matter as he would be said to be Functus Officio, having given a judgment or decision on the merit in the matter.

​A careful examination of the printed records and following the submissions of learned Respondent’s Counsel shows that when the Court made the order for the case file to be transferred to the Chief Judge for consolidation, it is without doubt that the Court below did not pronounce specifically on the application dated 28th January, 2008 and consequently, did not rule on the pending application one or the other. A careful perusal once again of page 41 lines 18 to 22 and page 42 lines 1 to 17 of record of appeal is clearly and fairly instructive here on the issue. The motion on notice of the 28th of January, 2008, having not been granted or refused or struck out or even withdrawn, therefore means that the application was still subsisting, alive and extant until the matter was transferred to the new panel, which heard and gave its ruling on it.

It would be recalled that the Court below only made an order for the case to be transferred to the Chief Judge for re-assignment with the aim that where the cases are consolidated, then the motion can be argued alongside the other case since the parties and the subject matter are the same. See page 41 lines 12 to page 42 lines 1 to 18 of the record of Appeal. Against the backdrop of the foregoing, issue two is also resolved in favour of the Respondent.

​As it has to do with issue three (3) dealing with the question of whether or not the issue of abuse of the Court’s processes was pleaded or sufficiently pleaded by the Respondent in accordance with the Edo State High Court (Civil Procedure) Rules as a defence to the claims of the Appellant as Plaintiff in the lower Court, it is important to state here that the issue of abuse of Court’s process is one that is paramount to adjudication for a number of reasons, chief amongst which are the followings;
1. This may result in the ridicule of the judicial system, where there are multiplicity or suits;
2. This issue of ridicule may stem from the fact that there may be the possibility of conflicting judgments and orders emanating from the multiple actions.
3. Multiple suits which had become an abuse, may amount to a waste of judicial resources.

​The issue of abuse of process is indeed an issue of law, which borders and/or affects the jurisdiction of the Court and is therefore paramount to the adjudication of any dispute; hence, it can be raised at any stage of the proceedings, even on appeal for the first time. It can even be raised suo motu by the Court. For the avoidance of any doubt, the term; “abuse of process of Court”, generally, is one that is applied to a proceeding, which is wanting in bona fides and frivolous, vexatious, or oppressive. Abuse of process can also mean abuse of legal procedure or improper use of the legal process. It is usually a process, which involves some bias, malice, some deliberateness and some desire to misuse or pervert the course of justice. See AFRICAN RE-INSURANCE CORPORATION vs. JDP CONSTRUCTION NIG. LTD. (2003) 13 NWLR (PT. 838) at page 609 at 635 paragraphs F-G; USMAN vs. BABA (2005) 5 NWLR (PT. 917) 113 at 131 paragraphs E-G.
The categories of what amounts to an abuse of process are not closed. An abuse can manifest in a variety of ways one of which is the multiplicity of actions between the same parties on same issue, seeking the same reliefs. A Court of law, therefore frowns at such multiplicity of actions and once a Court is satisfied that any proceeding before it is an abuse of process it has the power, and indeed the duty to dismiss it. The Court, being the architect of its integrity and dignity must be ready and willing to protect all of its processes from being abused.

​All said and done, and in agreement with learned Counsel for the Respondent, while essence of pleadings is to narrow down the issue in controversy between the parties in a case, the issue of abuse of Court process is not usually an issue in controversy between the parties before they came to Court. Rather, the issue of abuse of Court process will normally result after pleadings have been filed and exchange by parties.
Again, the purpose of giving a notice of preliminary objection in an action is to give the adversary an opportunity of reacting to the objection and to avoid any surprises. See the case of AGBAKA & ORS vs. AMADI & ANOR. (1998) LPELR- 231 (SC) where the apex Court per OGWUEGBU, JSC had this to say on the subject;
“The purpose of giving notice of preliminary objection is to give the adversary an opportunity of reacting to the objection and to avoid any surprise.”
​In the instant case, a notice of Preliminary Objection brought by way of a notice of motion was filed and served on the Appellant, which he responded to by the filing of a Counter Affidavit and a written address in support of same. By virtue of the provisions of Order 25 Rule 17 of the Edo State High Court (Civil Procedure) Rules, 1988 and Order 15 Rule 7(1) of the Edo State High Court (Civil Procedure) Rules, 2012, only statement of facts are to be pleaded and unfortunately for the Appellant, the issue of abuse of Court process is nevertheless that of an issue of law, which requires no pleading before a party can have it invoked. This issue is also resolved against the Appellant and in favour of the Respondent.

In respect of the issue four (4) on the question of whether there were indeed in existence, factors constituting an abuse of Court process in relation to the case formulated by the Appellant as Plaintiff as to warrant an order of dismissal, learned Counsel for the Appellant contended that a careful study of the pleadings in the instant case as exchanged between the parties, would show clearly that some of the salient conditions for dismissing an action as constituting an abuse of Court’s process were not made out and that the Court below did not properly address itself to the conditions.

​In resolving this issue, it may be appropriate to state here that, after a careful perusal of the printed records, it is obvious that the factors constituting abuse of Court process existed in relation to the case formulated by the Appellant as Plaintiff to warrant an order of dismissal of his suit in limine. A close perusal of paragraphs 4 and 5 of the Statement of Claim in suit No: B/213/2003 i.e. page 3 of the record of Appeal and paragraphs 4 and 5 of the Amended Statement of Claim in Suit No: B/383/2001 i.e. page 10 of the record of Appeal show conclusively that the averment in the said paragraphs are the same.

Here is a matter in which Appellant, as Counsel had sued the defendant’s predecessor-in-title in Suit No: B/383/2001 and also sued the defendant in another suit in Suit No: B/213/2003 over the said, same piece of land. The fourth issue is resolved against the Appellant and indeed, this Appeal is moribund and it is accordingly dismissed. Consequently, the decision of the Court below, sitting at the Benin Judicial Division, Coram: E. O. AHAMIOJE, J delivered on the 23rd day of March, 2012 is hereby affirmed. Cost of N200,000.00 is hereby awarded in favour of the Respondent.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading judgment, in this appeal, just rendered by my learned brother, Dr. F.O. Oho, JCA.

I am in complete agreement with His Lordship’s line of reasoning and the conclusion reached by him in the leading judgment that the appeal is bereft of merits.

​In giving credence to the leading judgment, I have the following few words of affirmation to add.

​The Appellant had earlier sued the Respondent’s predecessor in Suit No. B/383/2001 and later sued the Respondent in Suit No. B/213/2003. The two suits which are in respect of the same subject were pending before two different Judges of the trial Court. The Respondent filed an application in the latter suit to have it dismissed, same being an abuse of Court process in view of the former suit. At the hearing of the said application, the Appellant made an oral application for the transfer of Suit No. B/213/2003 to Court No.10 whereat suit No. B/383/2001 was pending, for the two suits to be heard together. The oral application not opposed by the Respondent’s Counsel was granted and Suit No. B/213/2003 was returned to the Chief Judge of the trial Court who re-assigned the case to Court No. 10 to be heard along with the already pending Suit No. B/363/2001. It is pertinent to note that, at the time order of transfer was made, the application of the Respondent, the subject of this appeal had not been heard, determined and ruled upon. No pronouncement one way or another had been made on the application, hence, the trial Court could not be said to be “functus officio” therein. What is more, the transfer of one suit from one Judge to another Judge by the Chief Judge was in exercise of the Chief Judge’s administrative duty. The act of transfer did not dispose of the Respondent’s application at that stage.

A Court is said to be “functus officio” in respect of a matter if the Court has fulfilled or accomplished its function finally in respect of that matter and it thus, lacks the jurisdiction to review, re-open or revisit the matter. It is therefore settled law that once a Court delivers its judgment or makes any order which finally determines a matter before it, it becomes “functus officio” and the Court is precluded from reviewing or varying such judgment or order except to effect corrections of clerical mistakes or accidental slips or where such judgment or order was obtain by fraud, in which case, the judgment or order can be set aside upon a proper application of the adverse party. See amongst an army of judicial authorities, the cases of: (1) Edo-Osagie & Ors. v. Commissioner of Lands, Mid-Western State of Nigeria (1973) LPELR-24932 (SC;) (2) Nigerian Army v. lyela (2008) LPELR-2014 (SC); (3) Citec Int’l Estate Ltd. & Ors. v. Francis & Ors. (2014) LPELR-22314 (SC) and (4) Enterprises Bank Ltd. v. Aroso & Ors. (2015) LPELR- 24720 (SC).

Although, the Appellant’s Counsel had made a stink that the Appellant was not given fair hearing at the hearing of the application of the Respondent, none of Counsel’s submissions had revealed in what way the Appellant was denied fair hearing. I have perused the Record of Appeal and fail to see how the Appellant was denied fair hearing. In reaction to the motion of the Respondent served on him, the Appellant filed a Counter Affidavit and along therewith was its Counsel’s written addresses in opposition to the said application. In line with the evidential burden of proof, the position of the law is that it is the duty of the party alleging the breach of his right to fair hearing to prove the allegation from the record of proceedings of the Court in which the alleged breach or denial occurred, since a breach or denial usually occur in the procedure used or adopted in the conduct of the proceedings. Hence, once it is established that such a breach or denial occurred, the entire proceedings are rendered invalid and the appellate Court has a legally bounden duty to set aside such proceedings in its entirety as the proceedings will be prejudicial to and constitute an infringement of the inviolable fundamental human rights to fair hearing, of the party who had suffered the breach or denial, enshrined under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. However, as in the instant matter, it is not sufficient for a party to merely make an allegation of breach of denial of fair hearing in the conduct of proceedings of a Court without going further to show the manner in which the breach or denial occurred from the record of proceedings of the Court.

On what constitutes a breach or denial of fair hearing to a party in a case, the Supreme Court in the case of: Ejeka v. State (2003) 7 NWLR (Pt. 819) p.408 per Tobi, JSC (of blessed memory) reiterated the very trite legal position thus:
“The principle of fair hearing is breached where parties are not given equal opportunity to be heard in the case before the Court. Where the case presented by one party is not adequately considered, the affected party can complain that he was denied fair hearing. Fair hearing is not an abstract term that a party can dangle in the judicial process but one which is real and which must be considered in the light of and circumstances of the case. A party who alleges that he was denied fair hearing must prove specific act or acts of such denial and not a mere agglomeration of conducts which are merely cosmetic and vain”
See also the cases of: (1) Denloye v. Medical and Dental Practitioners Disciplinary Committee (1968) LPELR-255206 (SC); (2) Magaji v. Nigerian Army (2008) LPELR-1814 (SC); (3) Ukwuyok v. Ogbulu (2010) 5 NWLR (Pt. 1187) p.316 at p.346; (4) MFA & Anon v. Inongha (2014) LPELR-22010 (SC) and (5) Ardo v. INEC & Ors. (2017) LPELR-41919 (SC). From the facts of this case as can be gleaned from the Record of Appeal, it is crystal clear that the Appellant was given adequate opportunity to present its case by the trial Court and it actually utilised the opportunity.

​On the point of law raised by the Respondent in his motion on notice that, in view of the first action of the Appellant against the Respondent’s predecessor in Suit No. B/383/2001, the Appellant’s subsequent action against the Respondent in Suit No. B/213/2003 constitutes an abuse of the process of the Court. The argument of the Appellant’s Counsel that the issue of abuse of Court process raised in the motion of the Respondent ought to have been raised in the first instant as a defence in the pleadings of the Respondent. That failure to do so by Respondent was in breach of the relevant provisions of the Rules of the trial Court and was prejudicial to the interest of the Appellant who was thereby taken by surprise. The foregoing submissions for the Appellant are in my firm view quite inane and totally misconceived. In the first instance, the Respondent’s said motion was served on the Appellant who adequately responded thereto by filing a counter affidavit and its Counsel’s written address to verify its opposition to the point raised in the motion. Furthermore, the point of an abuse of the process of the trial Court raised by the Respondent being an issue of law can be raised anyhow and at any time, even on appeal for the first time. That is the trite position of the law. Moreover, the Appellant was given an opportunity to be and was actually heard on the issue at the trial Court.

Abuse of the use of judicial process is an improper use of judicial process in litigation. However, the employment of the judicial process is only regarded generally as an abuse when a party improperly uses the judicial process to the irritation on annoyance of his opponent; and to clog the wheels of the efficient and effective administration of justice. Thus, multiplicity of actions on the same subject-matter between the same parties even where there exists a right to bring the action is regarded as abuse of judicial process. The abuse thus lies in the multiplicity and manner of the exercise of the right, rather than “per se” the exercise of the right itself. Some of the well recognised features of an abuse of judicial process are succinctly reiterated again by the Apex Court in the case of: Allanah & Ors. v. Kpolokwu & Ors. (2016) LPELR -40724 per Sanusi, JSC (Rt.) as follows:
“Some of the features of abuse of Court process include the under mentioned features: even though they are by no means exhaustive. These features are: (i) Filing of multiplicity of actions on the same subject-matter against the same opponent on the same issues or numerous actions on the same matter between the same parties even where there is in existence, a right to commence the action; (ii) Instituting different actions between the same parties simultaneously in different Courts even though on different grounds. (iii) Where two or more similar processes are used in respect of the exercise of the same right, for instance, a cross appeal and Respondent’s notice. (iv) Where two actions are instituted in Court, the second one asking for relief which may however be obtained in the first, the second action is, prima facie vexatious and an abuse of Court process. See the cases Okorocha v. PDP (2014) 7 NWLR (Pt.4406) p.213; Saraki v. Kotoye (1992) 9 NWLR (Pt.264) p. 156; Ogoejeofo v. Ogoejeofo (2006) 3 NWLR (Pt. 996) p.206.”
See also the cases of: (1) Oyeyemi & Ors. v. Owoeye & Anor. (2017) LPELR-41903 (SC) and (2) PDP & Anor. v. Umeh & Ors. (2017) LPELR-42023 (SC).

The law is also firmly settled that, once a Court is satisfied that an action before it amounts to an abuse of judicial process, it has the legally bounden duty to invoke its coercive power to sanction the party which is in abuse of its process with the dismissal of the action which constitutes the abuse. See the cases of: (1) Arubo v. Aiyeleru (1993) 3 NWLR (Pt.280) p. 125; (2) Adesanoye v. Adewole (2000) 9 NWLR (Pt. 127) p.671; (3) Igbeke v. Okadigbo & Ors. (2013) 12 NWLR (Pt.1368) p.225 and (4) Lokpobiri v. ogola (2015) LPELR-40838 (SC). In the instant case, the second action of the Appellant is clearly an abuse of the process of Court in view of the subsistence of its first action. The two actions are both for declaration of title to the same parcel of land, general, special and exemplary damages for alleged trespass and an order of perpetual injunction. The actions are between the same parties so to speak. The decision of the trial Court dismissing the second action of the Appellant for being an abuse of judicial process was therefore properly given. This Court has no reason whatsoever to disturb the proper and just decision. It is for the foregoing reasons and very detailed elucidations contained in the leading judgment which I adopt as mine, that I also hold that this appeal is without a modicum of merit. I therefore dismiss the appeal accordingly.

I equally abide by the consequential orders made in the leading judgment including the order for costs.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been privileged to read in advance, a draft copy of the lead judgment just delivered by my noble lord Dr. Frederick Oziakpono Oho JCA and I am in complete agreement with the lucid reasoning and the impeccable conclusions reached therein which I hereby adopt as mine. I too hold that the appeal lacks merit and it is hereby also dismissed by me. I shall abide by the consequential orders made therein including the order as to cost.

Appearances:

O. M. JAMGBADI, ESQ. For Appellant(s)

P. O. UWAYA, ESQ. For Respondent(s)