OLUMBA OLUMBA OBU v. J. O. OLUMBAMISE PRINTERS LTD.
(2013)LCN/6037(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of March, 2013
CA/C/08/2012
RATIO
PRACTICE AND PROCEDURE: DEFINITION OF THE TERM ABUSE OF PROCESS
The learned authors of Black’s Law Dictionary, 9th edition, page 11 define the term “abuse of process” as: “The improper and tortuous use of a legitimately issued Court process to obtain a result that is either unlawful or beyond the process’s scope – Also termed abuse of legal process; malicious abuse of legal process; wrongful process, wrongful process of law.” In Restatement of Torts, 2nd edition, 1977 paragraph 682 it is said that: “One who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed is subject to liability to the other for harm caused by the abuse of process.” Per. JOSEPH TINE TUR, J.C.A.
STATUTORY PROVISION OF THE TERM AGGREGATION OF CLAIMS
The existence of two or more lawsuits litigating the same issue may or may not constitute multiplicity of actions. But this may be called “aggregation of claims” a term defined by the learned authors of Black’s Law Dictionary, 9th edition, page 76 as “…an excessive number of claims that do not differ significantly in scope and are essentially duplicative.” It is to take care of such a situation that order 17 rule 26 and 27 of the High Court of Cross River State (Civil Procedure) Rules, 2009 provides as follows:
26. Where any defendant seeks to rely upon any ground as supporting a right of set-off or counter-claim, he shall in his defence state specifically that he does so by way of supporting a right of set-off or counter-claim.
27. Where a defendant by his defence sets up any counter-claim which raises questions between himself and the claimant along with any other persons, he shall add to the title of his defence a further title similar to the title in a statement of claim, setting forth the names of all persons who, if such counter-claim were to be enforced by cross action, would be defendants to such cross action, and shall deliver his defence to such of them as are parties to the action within the period which he is required to deliver it to the claimant.” Per. JOSEPH TINE TUR, J.C.A.
ABUSE OF PROCESS: WHETHER MULTIPLICITY OF ACTIONS ON THE SAME MATTER MAY CONSTITUTE AN ABUSE OF THE PROCESS OF THE COURT AND DUTY OF THE COURT TO INTERFERE TO STOP AN ABUSE OF ITS PROCESS
In Okafor & Ors. v. Attorney-General and Commissioner for Justice & ors. (1991) 7 SCNJ (pt. 11) 345 Karibi-Whyte, JSC held at page 363 that: “I venture to state quite concisely that an abuse of the process of the court is only possible by improper use of the issue of the judicial process or process already issued to the irritation and annoyance of the opponent… It is the law that multiplicity of actions on the same matter may constitute an abuse of the process of the court. But this is so only where the action is between the same parties with respect to the same subject matter. The court has a duty in such a situation to interfere to stop an abuse of its process. See Okorodudu v. Okoromadu 1977) 3 SC 21.”
In Okorodudu v. Okoromadu (1977) 3 SC 21 at 31 lines 10 to page 32 lines 1-25 appears the following principles of law by the Supreme Court:
“In the notice of discontinuance it was stated that the plaintiffs wanted to discontinue suit No. W/8/73, the subject matter of this appeal, because the suit “was not properly constituted” and the plaintiffs had “consequently instituted suit No. W/117/73 against the Defendants.” During his argument at the hearing of the appeal before us the learned counsel for the appellants frankly stated that the plaintiffs found it necessary to discontinue with the hope that the case would be struck out and thereafter to proceed with suit No. W/117/73 because they had made several applications to amend their pleadings which the learned Judge had refused to grant. It appears that the plaintiffs, having failed to secure amendments of their pleadings in suit No. W/8/73 proceeded to achieve what they had failed to obtain by amendments by filing therein Suit No. W/117/73 against the defendants while Suit No. W/8/73 was still pending in that Court. We consider the conduct of the plaintiffs in this regard as a fragrant abuse of judicial process of the Court. In addition to its inherent jurisdiction to stay proceedings which are clearly an abuse of its process, the court below has a duty under Section 16 of the High Court Law 1964, the Laws of the Midwestern State of Nigeria, 1964 to prevent multiplicity of proceedings between the same parties on the same subject matter. It seems that the learned Judge did not stay Suit No. W/117/73 because, as shown by his ruling, he thought the dismissal of the claims in suit No. W/8/73 would be a defence to the new suit. In view of our order remitting suit No. W/8/73 to the court below for hearing, we would follow the coarse taken in T.O. Oyegbola v. Esso West African Inc. (1966) 1 All NLR 170 and stay suit No. W/117/73 with direction that the stay shall not be removed until after suit No. W/8/73 has been determined.”
From these two authorities it seems to me that the mere fact that there is multiplicity of actions over the same subject matter does not constitute a suit an abuse of Court process if the parties and the reliefs claimed are not the same. The Court may have to examine the purport or intention that led to the institution of the action alleged to be an abuse of Court process and consider whether it was tortuous or was an improper use of a legitimately issued Court process to obtain a result that is either unlawful or beyond the process’s scope. Per. JOSEPH TINE TUR, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
OLUMBA OLUMBA OBU Appellant(s)
AND
J. O. OLUMBAMISE PRINTERS LTD. Respondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): The Respondent supplied a Heidelberg Speed Master 102 four Colour Printing Machine sometime in November, 2009 valued at N45,000,000.00 (Forty Five Million Naira) only to the appellant. The appellant made a deposit payment of N9,000,000.00 (Nine Million Naira) only and took possession of the machine. In the course of time the appellant would no longer complete payment on the ground that it was not new but second hand. In the course of the protracted argument that arose between the parties the Respondent invited the Economic and Financial crimes commission (EFCC) alleging that the appellant had obtained the printing machine from her under false pretences. The commission arrested and detained the appellant. Upon release the appellant took out a writ of summons against the Respondent, the Commission and one of her officer in the High Court of Justice, Calabar in suit No. HC/72/2011 on 8th day of March, 2011 claiming the following reliefs:
“31. By reason of several matters afore-stated claimants have suffered loss and claim jointly and severally against the Defendant as follows:
Against the 1st and 2nd Defendants Jointly and Severally:
1. The Sum of N9,000,000.00 paid to the 1st and 2nd Defendants for the supply of a brand new 2009 Heidelberg Speed Master 102-V printing Machine, four colour, which printing machine 1st and 2nd Defendants did not supply but supplied an outdated 1989 Heidelberg speed Master 102-v printing Machine which claimants rejected and continue to reject.
2. The sum of N2,500,000.00 paid to 1st and 2nd Defendants for the installation of the said printing Machine.
3. The sum of N1,500,000.00 being monies spent by Claimants for the sundry repairs of the said printing machine including procuring the services of experts to determine whether its improper functioning was due to defective or improper installation.
4. An order compelling 1st and 2nd Defendants to remove the said printing machine from the premises of claimants at No.34 Ambo Street, Calabar.
5. A declaration that the report by 1st and 2nd Defendants to 3rd and 4th Defendants that Claimants obtained goods from them under false pretences is in extreme bad faith, unconscionable and malicious.
Against 3rd and 4th Defendants Jointly and Severally:
6. A declaration that the threats to and likely breach of claimants fundamental right to personal liberty by their threatened arrest in Calabar and threatened detention in both Calabar and Lagos by 3rd and 4th Defendants in the matter of the botched contract between 1st and 2nd Defendants and claimants is contrary to section 35(1)(c) of the 1999 Constitution as 3rd and 4th Defendants cannot reasonably suppose that claimants have committed a criminal offence, and so unconstitutional.
7. An order restraining 3rd and 4th Defendants from arresting or detaining Claimants or from further inviting Claimants to Lagos or anywhere else for the purpose of arresting or detaining them in connection with the botched contract between Claimants and 1st and 2nd Defendants or in any way acting in a manner detrimental or prejudicial to Claimant in the matter of the supply of the Heidelberg Speed Master 102-V, Printing Machine (four colours) 1989 model or in the matter of the contract of the supply of the Heidelberg Speed Master 102-V Printing Machine, four colours, 2009 model.
Against all the Defendants Jointly and Severally:
8. The sum of N50,000,000 exemplary or aggravated damages for the wrongful, unlawful, malevolent, unconscionable and cruel conduct of Defendants in employing the law as an instrument of oppression, repression, coercion and terror against Claimants.”
The suit has the following parties:
BETWEEN:
1. TRIPLE STAR PRINTING PRESS LTD.
2. HIS HOLINESS, OLUMBA OLUMBA OBU – CLAIMANTS
AND
1. J.O. OLUMBAMISE PRINTERS LTD.
2. ALHAJI JAMIU K. ODUYE
3. ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC)
4. ZUBAIRU MUAZU
While suit No. HC/72/2011 was pending J. O. Olumbamise Printers Ltd. brought Suit No. HC/92/2011 against Olumba Olumba Obu in the High Court of Justice, Calabar under the Undefended List procedure supported by an 18 paragraph affidavit deposed by Ademola Kujore her Manager. The claimant sought the following reliefs against only the appellant:
“1. The sum of N31,000,000.00 Thirty One Million Naira) which represents the outstanding/balance sum due to the claimant by virtue of the supply of a Heidelberg speed Master 102-V colour machine to the defendant.
2. 10% post judgment interest on the judgment debt from the date of judgment until the entire judgment sum is liquidated.
The writ was issued by Napoleon Emeaso Nwachukwu, Esq. of Festus Keyamo Chambers whose address for service is 1 Festus Keyamo Lane off Adebayo Mokuolu Street, Behind Hotel Newcastle Anthony Village Lagos State. Addressed within jurisdiction c/o Engr. Felix Otuya, No.7A Odwyer Street off Target Street, Calabar, Cross River State.”
With this development the appellant filed Notice of Preliminary Objection on 12th day of May, 2011 praying for the following reliefs:
“(a) An order striking out suit No. HC/92/2011 as constituting an abuse of judicial process; or
(b) An order staying further proceedings in suit No. HC/72/2011 until the hearing and determination of Suit No. HC/72/2011 pending before Itam J.,
(c) Such further or other order(s) as this Honourable Court may deem fit to make in these circumstances.”
The affidavit in support of the preliminary objection by His Holiness, Olumba Olubma Obu reads as follows:
“I, His Holiness, Olumba Olumba Obu, male, Christian, Chairman, Board of Trustees of the Brotherhood of the Cross and Star, Nigerian, residing at No.34 Ambo street, Calabar make oath and states as follows:
1. That I am the Defendant in the substantive suit and Applicant herein by virtue of which facts I am conversant with the dispositions made herein.
2. That I filed an action together with Messrs Triple star printing press Ltd. as claimants in the Calabar High Court on 8th day of March, 2011 in suit No. HC/72/2011 against the J.O. Olumbamise Printers Ltd., Alhaji Jamiu K. Oduye, Economic and Financial Crimes Commission (EFCC) and Zubairu Muazu as Defendants. The originating processes filed including the written deposition of our only witness are attached herewith and marked Exhibit “AA”.
3. That claimants in suit No. HC/72/2011 also obtained orders to serve defendants in suit. No. HC/72/2011 amongst whom is the present claimant in this action through a reputable courier company which order is attached herewith and marked Exhibit “BB”.
4. That consequently the said court processes in Suit NO. HC/72/2011 including the written deposition of our only witness, were on Friday, 11th March, 2011 served on all the defendants including the present claimant in this suit through UPS. The waybill evidencing the delivery of the processes on all defendants are attached herewith and marked Exhibit “CC” and “DD” respectively.
5. That the present claimant through Mr. Napoleon Emeaso-Nwachukwu, Esq. of counsel has responded to the said processes served on defendants in suit No. HC/72/2011 by filing a Notice of Preliminary objection which Notice of Preliminary Objection is attached herewith and marked Exhibit “EE”.
6. That we have responded to Exhibit “EE” vide our Exhibit “FF” attached herewith and the matter adjourned to 19th May, 2011 for hearing before Hon. Justice Okoi Itam sitting in High Court No.2.
7. That in the said suit, we are claiming a refund of all monies so far paid to claimant amongst others in respect of the printing machine subject matter of this suit, a refund of the cost of N2,500,000.00 paid to claimant amongst others for the installation of the printing machine, the sum of N1,500,000.00 paid to 3rd parties to get the said printing machine working and above all an order compelling Alhaji Jamiu K. Oduye and the present claimant to remove the said printing machine from our premises at No. 34 Ambo Street, Calabar.
8. That it is while the action (filed by Messrs Triple Star Printing Press Ltd. and I against the present claimant amongst others in respect of the printing machine and in which we seek a judicial determination that we are not bound by the contract having repudiated same by reason of claimant supplying us with a wrong and defective printing machine we did not request for) is still pending determination that claimant commenced this action against me under the Undefended List in respect of the same printing machine.
9. That I depose to this affidavit conscientiously believing the contents to be true and correct and in accordance with the oaths Act, 2004.”
Learned Counsel to the parties submitted written addresses. His Lordship held that suit No. HC/92/2011 did not constitute an abuse of Court process.
Being aggrieved by this decision the appellant lodged an appeal on 27th October, 2011 challenging the ruling on five grounds. The Appellant’s Brief of Argument was filed on 5th day of March, 2012 and served on the Respondent who in turn filed brief on 11th day of April, 2012. This prompted the appellant to file a Reply Brief on 20th day of April, 2012. The appellant’s learned Counsel identified two issues for determination, namely:
“1. Whether having regards to suit No. HC/72/2011 and the entire circumstances, suit No. HC/92/2011 is not an abuse of Court process?
2. Whether having regards to all the circumstances of this case and especially having dismissed applicant’s application impugning Respondent’s suit as constituting an abuse of legal process, the learned trial Judge was justified in the ultimate orders he decreed?”
The Respondent’s learned Counsel formulated the following issues for determination:
“1. Whether with regards to the circumstances of suit No. HC/72/2011 and suit No. HC/92/2011, the court below was right to hold that the institution of suit No. HC/92/2011 did not amount to an abuse of judicial process.
2. Whether the lower court was right in making the orders it made sequel to holding that suit No. HC/92/2011 was not an abuse of judicial process.”
ISSUE ONE: ARGUMENT
The learned Counsel to the appellant contended that Suit No. HC/92/2011 was an abuse of Court process having regard to the fact that the same subject-matter was involved in suit No. HC/72/2011. Counsel cited authorities that defines what constitutes an abuse of process, namely, Ogoejofo v. Ogoejof (2007) FWLR (pt.63) 141 at 150; Amaefule v. The State (1989) 2 NWLR (Pt.75) 128 at 177; Ntuks v. NPA (2007) All FWLR (pt.387) 809 at 832 and Overseas Construction Ltd. v. Creek Enterprises Ltd. (1985) 3 NWLR (Pt.13) 407 at 418. It was argued that the two suits could be consolidated into one action and conveniently tried together, citing The Incorporation Trustees of the Grail Movement of Nigeria v. Lawson & Ors. (2007) All FWLR (Pt.371) 1697 at 1706 and Iloabuchi v. Ebigbo (2000) FWLR (Pt.17) 78 at 105. Learned Counsel to the appellant argued in the reply brief that a determination of suit No. HC/92/2011 in favour of the Respondent would render Suit No. HC/72/2011 redundant and hollow, citing Minister for Work and Housing v. Tomas Nig. Ltd. (2002) FWLR (pt. 124) 456.
The Respondent’s learned counsel replied that suit No. HC/92/2011 did not constitute an abuse of court process as neither the parties nor the reliefs sought in the two suits are the same. Counsel cited Seheep & Anor. v. Araza & Anor. 4 NSCQR 112 at 116; Accord Party v. Governor of Kwara State (2011) All FWLR (pt.555) 296; Awofeso v. Oyemuya (1996) 7 NWLR (Pt.460). The learned counsel urged that issue one should be resolved against the appellant.
The learned authors of Black’s Law Dictionary, 9th edition, page 11 define the term “abuse of process” as:
“The improper and tortuous use of a legitimately issued Court process to obtain a result that is either unlawful or beyond the process’s scope – Also termed abuse of legal process; malicious abuse of legal process; wrongful process, wrongful process of law.”
In Restatement of Torts, 2nd edition, 1977 paragraph 682 it is said that:
“One who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed is subject to liability to the other for harm caused by the abuse of process.”
The appellant’s claim in suit No. HC/72/2011 is for the refund of the sum of Nine Million Naira paid to the Respondent for the supply of a new Heidelberg Speed Master 102-v Printing Machine which the claimant alleged was not new but an old one coupled with damages; N2.5m paid to 1st and 2nd Respondents for the installation of the printing machine; N1.5m spent on repairing the machine including procuring of services of experts to determine whether its improper functioning was due to defective or improper installation; an order compelling the removal of the machine from the claimants’ premises; a declaration that the report by 1st and 2nd Respondents to 3rd and 4th Respondents that the claimants obtained goods from them under false pretences is in extreme bad faith, unconscionable and malicious. The claim against the 3rd and 4th Respondents is founded on breach of the claimants’ fundamental rights as enshrined under the constitution, injunctive relief against further arrest and N50,000,000.00 exemplary and aggravated damages.
However, in suit No. HC/92/2011 the Respondent claimed against the appellant the balance of N31,000,000.00 (Thirty One Million Naira) only as sums due but not paid by the appellant for the purchase of the Heidelberg Speed Master 102-V Colour machine to the defendant and 10% post judgment interest on the judgment debt from the date of judgment until the entire sum is liquidated. The question that readily comes to mind is this: Can the two suits be conveniently tried together or not? If it can, why split the two causes of action?
The existence of two or more lawsuits litigating the same issue may or may not constitute multiplicity of actions. But this may be called “aggregation of claims” a term defined by the learned authors of Black’s Law Dictionary, 9th edition, page 76 as “…an excessive number of claims that do not differ significantly in scope and are essentially duplicative.” It is to take care of such a situation that order 17 rule 26 and 27 of the High Court of Cross River State (Civil Procedure) Rules, 2009 provides as follows:
26. Where any defendant seeks to rely upon any ground as supporting a right of set-off or counter-claim, he shall in his defence state specifically that he does so by way of supporting a right of set-off or counter-claim.
27. Where a defendant by his defence sets up any counter-claim which raises questions between himself and the claimant along with any other persons, he shall add to the title of his defence a further title similar to the title in a statement of claim, setting forth the names of all persons who, if such counter-claim were to be enforced by cross action, would be defendants to such cross action, and shall deliver his defence to such of them as are parties to the action within the period which he is required to deliver it to the claimant.”
My humble view is that the reliefs sought by the Respondent in suit No. HC/92/2011 could have been claimed by way of a counter-claim in suit No. HC/72/2011 and conveniently tried together by Itam J., on the principle that where the equities are equal the first in time shall prevail. But does the failure of the claimant in Suit No. HC/92/2011 to counter-claim in Suit No. HC/72/2011 constitutes an abuse of Court process? I do not think so. In Okafor & Ors. v. Attorney-General and Commissioner for Justice & ors. (1991) 7 SCNJ (pt. 11) 345 Karibi-Whyte, JSC held at page 363 that:
“I venture to state quite concisely that an abuse of the process of the court is only possible by improper use of the issue of the judicial process or process already issued to the irritation and annoyance of the opponent…
It is the law that multiplicity of actions on the same matter may constitute an abuse of the process of the court. But this is so only where the action is between the same parties with respect to the same subject matter. The court has a duty in such a situation to interfere to stop an abuse of its process. See Okorodudu v. Okoromadu 1977) 3 SC 21.”
In Okorodudu v. Okoromadu (1977) 3 SC 21 at 31 lines 10 to page 32 lines 1-25 appears the following principles of law by the Supreme Court:
“In the notice of discontinuance it was stated that the plaintiffs wanted to discontinue suit No. W/8/73, the subject matter of this appeal, because the suit “was not properly constituted” and the plaintiffs had “consequently instituted suit No. W/117/73 against the Defendants.” During his argument at the hearing of the appeal before us the learned counsel for the appellants frankly stated that the plaintiffs found it necessary to discontinue with the hope that the case would be struck out and thereafter to proceed with suit No. W/117/73 because they had made several applications to amend their pleadings which the learned Judge had refused to grant.
It appears that the plaintiffs, having failed to secure amendments of their pleadings in suit No. W/8/73 proceeded to achieve what they had failed to obtain by amendments by filing therein Suit No. W/117/73 against the defendants while Suit No. W/8/73 was still pending in that Court. We consider the conduct of the plaintiffs in this regard as a fragrant abuse of judicial process of the Court.
In addition to its inherent jurisdiction to stay proceedings which are clearly an abuse of its process, the court below has a duty under Section 16 of the High Court Law 1964, the Laws of the Midwestern State of Nigeria, 1964 to prevent multiplicity of proceedings between the same parties on the same subject matter. It seems that the learned Judge did not stay Suit No. W/117/73 because, as shown by his ruling, he thought the dismissal of the claims in suit No. W/8/73 would be a defence to the new suit. In view of our order remitting suit No. W/8/73 to the court below for hearing, we would follow the coarse taken in T.O. Oyegbola v. Esso West African Inc. (1966) 1 All NLR 170 and stay suit No. W/117/73 with direction that the stay shall not be removed until after suit No. W/8/73 has been determined.”
From these two authorities it seems to me that the mere fact that there is multiplicity of actions over the same subject matter does not constitute a suit an abuse of Court process if the parties and the reliefs claimed are not the same. The Court may have to examine the purport or intention that led to the institution of the action alleged to be an abuse of Court process and consider whether it was tortuous or was an improper use of a legitimately issued Court process to obtain a result that is either unlawful or beyond the process’s scope. None of these factors are present in this appeal. Besides neither the parties nor the reliefs claimed in Suit No. HC/92/2011 and in suit No. HC/72/2011 are the same. I am of the humble opinion that His Lordship was right by holding at page 159 lines 23 to page 160 lines 1-2 of the printed record as follows:
“It may be that the course of action opens to the claimant in the instant case, in the face the claims in suit No. HC/72/2011, as argued by learned Counsel for the defendant was to counter-claim in that suit for the balance due to it for the supply of the printing machine.
This is because the two actions could conveniently be tried together, in the sense that the rights and obligations of the respective parties in the supply of the printing machine should be determined in one proceeding and/or by the same judex. The failure of the claimant in the instant case to avail itself of the option of a counter-claim in HC/72/2011 does not make the instant case an abuse of judicial process. This suit is therefore not liable to be struck out as it is not in abuse of judicial process.”
Applying these principles of law to the facts of this case, I resolve issue one against the appellant.
ISSUE TWO:
The argument in issue two is that having dismissed the appellant’s application that Suit No. HC/92/2011 was not an abuse of process the learned trial judge should not have made orders not sought by any of the parties, citing Iloabuchi v. Ebigbo (2000) FWLR (pt.17) 78 at 105; The Incorporated Trustees of the Grail Movement of Nigeria vs. Lawson & Ors. (supra); Toriola vs. Williams (1982) 15 NSCC 187 at 197. Neither could the learned trial Judge have granted them as consequential orders. Learned counsel urged this court to set aside the orders.
Learned Counsel to the Respondent referred the Court to Section 45 of the High Court Law of Cross River State which empowers a Judge to transfer a suit to a brother judge. Counsel argued that there was nothing wrong with what the learned trial Judge did in this circumstance. Counsel urged this court to resolve issue two against the appellant.
My humble view is that every party is bound by the reliefs claimed on the motion paper. See Okoya v. Santili (1990) 3 SCNJ 83; Commissioner for Works Benue State v. Devcon Construction Co. Ltd. (1988) 3 NWLR (pt.83) 407 at 420. The Court is also to either grant or refuse the prayers sought on the face of the motion. The reliefs sought on the motion paper in Suit No. HC/92/2011 were:
“(a) An order striking out suit No. HC/92/2011 as constituting an abuse of judicial process; or
(b) An order staying further proceedings in Suit No. HC/92/2011 until the hearing and determination of Suit No. HC/72/2011 pending before Itam J.
(c) Such further or other order(s) as this honourable Court may deem fit to make in these circumstances.”
When the learned trial Judge refused to strike out the suit as constituting an abuse of process the next was to consider the relief for stay of proceedings pending the determination of Suit No. HC/72/2011 before Itam J., His Lordship however ruled that:
“2. The defendant’s notice of intention to defend has raised triable issues and I hereby give him leave to defend.
3. This suit shall therefore be removed from the Undefended List and placed on the Ordinary Cause List for hearing and determination.
4. This suit shall be returned to the Hon. Chief Judge for reassignment to Court 2 where the claimant herein can neither counter-claim in suit No. HC/72/2011, which is earlier in time, or have the suit consolidated and tried together.”
See page 160 lines 14-21 0f the printed record.
These remedies were never sought nor claimed on the motion paper by the appellant. Accordingly, they are set aside. See the authorities cited by learned Counsel to the appellant in argument and Ekpenyong v. Nyong (1975) 2 SC 71 at 80; Onibudo v. Akibu (1982) 7 SC 60 and Atolagbe v. Shorun (1985) 4 SC 250 at 256. In the Notice of Appeal filed on 27th day of October, 2011 the appellant sought the following reliefs:
“To allow the appeal and grant the prayers in Appellant’s motion dated 11th day of May, 2011 and filed on 12th May, 2011 by striking out Suit No. HC/92/2011 as constituting an abuse of judicial process or staying further proceedings thereon.”
Having upheld the learned trial judge’s holding that Suit No. HC/92/2011 did not constitute an abuse of Court process there was no basis to order a stay of further proceedings. I resolve issue two in favour of the appellant.
Accordingly, this appeal is allowed in part. I make no order as to costs.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Joseph Tine Tur, JCA. I am in agreement that the court has a duty to protect itself from abuse and will not allow a litigant to abuse its process. See Ugese V. Siki (2007) 8 NWLR pt 1037 page 452, Saraki V. Kotoye (1992) 11/12 SCNJ.
Abuse of court process consists in the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with administration of justice such as instituting different actions between the same parties simultaneously in different courts even though on different grounds, where two similar processes are used in respect of the exercise of the same right for example a cross appeal and a respondent’s appeal.
In the present appeal, the appellant has not been able to convince the court that an abuse of court process has really occurred.
For this and the more robust reasoning and conclusion, I agree that this appeal succeeds in part. I abide by all the consequential orders in the lead judgment.
ONYEKACHI A. OTISI, J.C.A.: I have had the opportunity of reading in draft the Judgment just delivered by my learned Brother, Joseph Tine Tur JCA. I am in complete agreement with his conclusions. I will only add these few remarks in support.
This appeal arose from the Ruling of the lower court in respect of a motion filed by the Appellant in Suit No. HC/92/2011. The Appellant had sought the following reliefs:
(a) An order striking out suit No. HC/92/2011 as constituting an abuse of judicial process; or
(b) An order staying further proceedings in suit No. HC/92/2011 until the hearing and determination of suit No. HC/72/2011 pending before Itam J.,
(c) such further or other order(s) as this Honourable court may deem fit to make in these circumstances.”
The lower court ruled against the Appellant, hence this appeal.
The issues raised for determination by both parties are similar. Issue No. 1, as raised by the Appellant, is as follows:
Whether having regards to suit No. HC/72/2011 and the entire circumstances, suit No HC/92/2011 is not an abuse of Court process.
For the Respondent, issue No 1 was formulated thus:
Whether with regards to the circumstances of HC/72/2011 and HC/92/2011, the court below was right to hold that the institution of suit No. HC/92/2011 did not amount to an abuse of judicial process.
This issue was resolved in favour of the respondent, against the appellant, and I agree.
Abuse of court process simply denotes a situation where a party has instituted a multiplicity of suits against the same opponent in respect of the same subject matter and on the same issues. This manner of using Court process, which is obviously lacking in bona fide, leads to the irritation and annoyance of the other party and thus impeding due administration of justice. To institute an action during the pendency of another suit, claiming the same relief is an abuse of Court Process. To sustain a charge of abuse of process, there must coexist: (1) a multiplicity of suits; (2) between the same opponents; (3) on the same subject matter; and (4) on the same issues. See: NV SCHEEP VS. MV ‘ARAZ’ (2000) 15 NWLR (Pt.691) 622, UBA PLC V. MODE NIG PLC (2000) 12 NWLR (Pt.680) 16.
However, in circumstances where the subject matter is the same, different rights and reliefs may give rise to different suits. In such circumstance, no question of multiplicity of action arises. See: CHRISTIAN OUTREACH MINISTRIES INC. V. COBHAM (2006) 15 NWLR (Pt. 1002) 283 at 305 – 307; UMEH V. IWU (2008) 5 MJSC 175.
As rightly stated in the lead Judgment, the mere fact that there is multiplicity of actions over the same subject matter does not constitute a suit an abuse of court process, if the parties and the reliefs claimed are not the same. In the instant appeal, the parties and reliefs sought in HC/92/2011 are different from the parties and reliefs sought in HC/72/2011. It has not been shown that the actions were instituted mala fide, merely to cause the irritation and annoyance of the other party; and to impede the due administration of justice. The trial court therefore rightly held that HC/92/2011 did not constitute an abuse of court process, no matter that both actions arose from the same transaction.
Having so held, the learned trial Judge then proceeded to make orders upon which issue No 2 was formulated by the Appellant as follows:
Whether having regards to all the circumstances of this case and especially having dismissed Applicant’s application impugning Respondent’s suit as constituting an abuse of legal process, the learned trial Judge was justified in the ultimate orders he decreed.
For the Respondent, Issue No 2 is as follows:
Whether the lower court was right in making the orders it made sequel to holding that suit No HC/92/2011 was not an abuse of judicial process.
The Orders in issue are as follows:
“2. The defendant’s notice of intention to defend has raised triable issues and I hereby give him leave to defend.
3. This suit shall therefore be removed from the undefended list and placed on the Ordinary Cause List for hearing and determination.
4. This suit shall be returned to the Hon. Chief Judge for reassignment to court 2 where the claimant herein can neither counter-claim in suit No. 72/2011 which is earlier in time, or have the suit consolidated and tried together.”
These reliefs were not sought by the Appellant in the motion.
It is settled law that a court cannot grant to a plaintiff a remedy which has not been claimed and established by the pleading and the evidence respectively. See: EKPENYONG AND OTHERS V. NYONG AND OTHERS (1975) 2 SC 71.
KALIO AND OTHERS v. DANIEL KALIO (1975) 2 SC 15, NIGERIAN HOUSING DEVELOPMENT LTD AND ANOR. V. MUMINI (1977) 2 SC 57 at 81. UNIVERSITY OF LAGOS 244 AND 2 OTHERS V. DADA (1971) (Pt. 3) 34 and UNION BEVERAGES V. OWOLABI (1988) 1 NWLR (Pt. 68) 128 at 133; INTERNATIONAL MESSENGERS NIGERIA LIMITED V. ENGINEER DAVID NWACHUKU (2004) 6-7 S.C.88. Thus, a court cannot grant a relief which has not been specifically prayed for. See DYKYRAGE v. OMNIA (2000) 7 SC (pt. 1) 56 at 68. OYEKANMI v. NEPA (2000) 12 SC (pt. 1) 70.
The orders made by the trial court did not follow any remedies sought or claimed by the Appellant, upon whose application the trial court was adjudicating upon. As pointed out in the lead Judgment, the trial court should not have granted orders not sought by the Appellant. And, as held in the lead Judgment, I would also set aside the said Orders.
This appeal is therefore allowed on Issue 2 but dismissed on Issue No. 1. I abide with the Orders made in the lead judgment.
Appearances
D. Diegbe with U. Itam & U. EssienFor Appellant
AND
No representative for the Respondent though learned Counsel for the
Respondent was served hearing notice on 7th day of February, 2013.For Respondent
