IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP: HON. JUSTICE I.S. GALADIMA
Date: 17th May, 2018. SUIT NO: NICN/YEN/57/2016
BETWEEN:
P.C. GODSPOWER ENOCH
P.C. EVANS NWIDAG CLAIMANTS/RESPONDENTS
AND
COMMISSIONER OF POLICE,
RIVERS STATE
POLICE SERVICE COMMISSION DEFENDANTS/RESPONDENTS
THE SHELL PETROLEUM
DEVELOPMENT COMPANY
OF NIGERIA LIMITED DEFENDANT/APPLICANT
REPRESENTATION:
– C.E. AMAKIRI, ESQ. FOR THE CLAIMANTS/RESPONDENTS
– O.N. ESIEVOADJE, ESQ. FOR THE 3rd DEFENDANT/APPLICANT
RULING/JUDGEMENT:
This motion was filed on the 23rd of February, 2018 pursuant to Order 11 Rule 1 of the NICN Rules 2007 (sic) [Order 17 rule 1 (1) NICN 2017] seeking for the following orders:
- An order setting down the points of law pleaded in paragraph 18 of the 3rdDefendant’s/Applicant’s Statement of Defence for hearing and determination.
- An order striking out the Claimants’ claims for being an abuse of the process of this honorable court.
The grounds upon which the reliefs are sought are as follows:
- Claimants instituted suit no. PHC/200M/2004 – P.C. GODSPOWER ENOCH AND ANOR. V. SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED AND 2 OTHERS at the High Court of Rivers State.
- The aforementioned case had the 1stand 3rd Defendants herein as Defendants.
- Judgment/Ruling in the said case was delivered on the 27/7/06 by Hon. Justice J.M. Kobani.
- The said judgment/ruling of the Honorable Court was in favour of the Claimants.
- Defendant/Applicant has fully complied with the orders made by the Court in the said judgment.
- Claimants by this suit, seek to enforce the judgment/ruling delivered in suit no. PHC/200M/2004 – P.C. GODSPOWER ENOCH & ANOR V. SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED & 2 ORS against the Defendant/Applicant by instituting this fresh action against it.
- This instant action is an abuse of the process of this honorable court.
The application is supported by a 13 paragraph affidavit duly deposed to as well as a brief of arguments.
The Claimants/Respondents challenge the application and filed a joint counter affidavit of 7 paragraphs on the 6th of March, 2018 as well as brief of arguments supporting it.
The 1st and 2nd Defendants/Respondents neither put up any appearances nor challenge the said motion.
With issues properly joined, the matter was adjourned to the 25th of April on which date both counsel adopted and argued their positions as shall be considered shortly.
The 3rd Defendant/Applicant raised a sole issue for determination thus: “Whether this action by the Claimants/Respondents filed on the 17/3/2016 is not an abuse of Court process”. He seeks for the suit to be struck out accordingly. His argument is hinged on the fact that by their reliefs sought, the Claimants herein seek to enforce the judgment/ruling of the High Court of Rivers State in suit number PHC/200M/2004 between P.C. GODWIN ENOCH AND ANOR V. SHELL PETROLEUM DEVELOPMENT COY. OF NIGERIA LIMITED pronounced on the 27th of July, 2006. That it was a case in which these same Claimants had sued particularly the 3rd Defendant/Applicant herein and judgment obtained against it. It is argued further that by filing this suit, the Claimants have taken a step which is unknown in law in their bid to in essence, enforce the valid judgment of a competent Court of Law. That the judgment of the High Court can neither be reviewed nor varied by this court as same is binding on the parties. It can also not be set aside by this court as doing so will amount to sitting on appeal against the decision of another court of coordinate jurisdiction. The case ofASSOCIATED DISCOUNT HOUSE LIMITED V. AMALGAMATED TRUSTEES LIMITED (2007) ALL FWLR (PART 392) 1781 was cited.
Furthermore, that one of the declarations sought for and which was granted by the Rivers State High Court was as follows:
“A declaration that the Applicants are still members of the SPY Police of the Nigeria Police attached to the 2nd Respondent and entitled to their benefits, salaries, emoluments and allowances thereof and a further order directing the 2nd Respondent to pay forthwith, all arrears of salaries, benefits, emoluments, and allowances of the Applicants outstanding to their credit since their unlawful and illegal dismissal from the SPY Police of the 2nd Respondent”.
Counsel for the Applicant argued that there must be an end to litigation as the filing of a fresh suit to enforce the valid decision of a court is not a process contemplated under the Sheriffs and Civil Process Act, LFN 2004. The case of GOVERNMENT OF GONGOLA STATE V. TUKUR (1989) ALL NLR 647 @ 660 was cited and relied upon.
Accordingly, this suit amounts to an abuse of the Court’s process as may be gleaned from one of the decisions made by the Supreme Court in OGOEJEOFO V. OGOEJEOFO (2006) ALL FWLR (PART 301) 1792. This matter was instituted to embarrass, irritate and annoy the 3rd Defendant in particular. Learned Counsel for the Applicant went on to state that from paragraph 8 of the Statement of Facts, the Claimants have even admitted that the 3rd Defendant complied with the order of the High Court of Rivers State even though it failed to comply with the 4th Order contained in the said ruling/judgment. That while this isn’t in doubt, the procedure undertaken by the Claimants in filing this fresh suit is not recommended by the law and it cannot be the process to compel obedience of the valid orders of the High Court of Justice. Counsel enjoins me to strike out this suit as same amounts to an abuse. He also needs this court to note that the 3rdDefendant/Applicant paid the sum of N 5, 093,752.62 respectively to the Claimants as arrears of salaries, emoluments, and allowances they were entitled to. That if there is any default in complying with any of the orders of the High Court of Rivers State, the Claimants should secure the appropriate legal means but certainly not by instituting a fresh suit. Learned Counsel implores this court to grant his prayers.
RESPONDENTS’ ARGUMENTS:
The Claimants’/Respondents’ Counsel, relying on his 7 paragraphs affidavit, raised two issues for determination thus:
- Whether the Claimants’/Respondents’ suit is maintainable?
- Whether the Claimants’/Respondents’ suit is an abuse of process of the court.
On issue one, the Claimants’ counsel stated that this action was instituted for the purpose of enforcing the declaratory judgment in suit no PHC/200M/2004 and thus being the case, this court has the requisite jurisdiction to entertain and determine this suit as it is currently constituted. Also, and arising from the fact that the Orders granted by the High Court of Justice Port Harcourt are allegedly declaratory in nature, this suit cannot be regarded as an abuse of Court process. It is argued on, that since the passage into law of the 3rd Alteration Act 2010 which granted this Court exclusivity in handling employment matters in Nigeria, it is not doubtful that the High Courts no longer enjoy concurrent jurisdiction over employment matters and as such the appropriate venue for the Claimants to come for their reliefs is this court. Learned Mr. Tuduru U. Ede of Counsel for the Claimants/Respondents submitted on that this Court should take judicial notice of the enrolled Judgment Order as well as the Judgment attached to the originating processes by the Claimants in arriving at a fair conclusion. He went on to state that it has been established copiously in the Statement of Facts filed before this Court – which fact was also admitted by the 3rd Defendant/Applicant – that the judgment delivered in suit number PHC/200M/2004 was declaratory in nature. That the said judgment merely proclaimed the Claimants/Respondents rights, the existence of legal relations between them and the 3rd Defendant/Applicant but does not contain any specific orders which may be carried out in execution against the Defendants. The necessity for filing this action is therefore apparent and lends support from the decision in CARRENA V. AKINLASE (2008) 14 NWLR (PART 107) 262. According to learned Counsel also, a declaratory Judgment which is an embodiment of the recognition of particular rights, may be the basis for subsequent proceedings to enforce such rights particularly where such rights are threatened or violated. As such a declaratory order or judgment remains a dormant right until subsequent proceedings have been taken to protect the threat to or violation of the rights so declared in the judgment or order. The case of OBI V. INEC (2007) 11 NWLR (PART 1046) 565 was again relied upon to support the suggestion that since the judgment is declaratory, it’s enforcement by this subsequent action is proper and within the jurisdiction of this Honorable Court. For the distinction between Declaratory and Executory Orders of Courts, I have been referred to the decisions in GOVERNMENT OF GONGOLA STATE V. TUKUR and OKOYA V. SANTILLI (citations supplied).
On the possible abuse of this court’s process, the Claimants/Respondents argued that given the position of the law in respect of declaratory orders, there can be no doubt that the filing of this here suit is completely legal and not improper as alleged by the Applicant herein. That this suit does not constitute improper use of the judicial process to irritate or annoy the 3rd Defendant/Applicant or the other Defendants. He relied on the decision in OSUN STATE INEC V. NCP (2013) 9 NWLR (PART 1360) 451 to establish what amounts ordinarily to an abuse of court’s processes. It was argued further that the Defendants are yet to comply with the order to recall and reinstate the Claimants as per the subsisting judgment of the Rivers State High Court as well as the payment of outstanding salaries, entitlements and allowances as declared therein. It was also submitted that this Court can enforce the decisions of the Rivers State High Court given its status as declared in the 3rdAlteration Act 2010.
He finally urged this Court to disregard the application for striking out this cause.
In his oral response, Mr. O.N. Esievoadje tersely remarked that the Claimants have not made any claims for reinstatement and that all they now seek are monetary claims which had already been complied with following the judgement of the Rivers State High Court of Justice.
COURT’S DECISION:
I have gone through the entire application, the processes, authorities as well as arguments proffered for and against same. In my honest opinion, there is a lone issue for determination which is “whether the suit filed by the Claimants is an abuse of Court Process”.
It is important to first state that this case was filed before this court on the 17th of March, 2016 seeking the following reliefs jointly and or severally against these Defendants:
- A declaration that having regard to the terms of the judgment/ruling of the High Court of Rivers State sitting at Port Harcourt dated the 27thDay of July, 2006 in suit number PHC/200M/2004 – P.C GODSPOWER ENOCH AND ANOR V. C.O.P AND 2 ORS, the Claimants being Supernumerary Policemen (SPY POLICE) of the Nigeria Police Force of the 1st and 2nd Defendants attached to the 3rd Defendant, the Claimants are entitled to their monthly benefits, salaries, emoluments, and allowances.
- An order directing the Defendants particularly the 3rdDefendant to pay forthwith to the Claimants, the sum of N 36,917,213.46 (N 18,458,606.73 apiece/to each of the Claimants) at 21% interest being arrears of/outstanding salaries, benefits, emoluments, and allowances of the Claimants falling due since March 2008, January – March 2016 after the payment of the sums embodied in the letter of 3rd March, 2008 and Cheque serial numbers HC 55441202 and HC 55441203 of 3/3/08 respectively and or any current higher or any applicable improved or higher current monthly salaries, allowances, emoluments and benefits.
- An order directing the Defendants particularly the 3rdDefendant to pay over to the Claimants, the sum of N109, 304, 841. 13 (at N54,652,420.56 apiece) being Claimants’ current or any applicable improved or higher current monthly salaries, allowances, emoluments, and benefits, inclusive of 15% pay off for the outstanding 18 years of service or attainment of the satisfactory retirement age or attainment of retirements by length of service (effective April 2016 – 2035) to the Defendants.
- N5,000,000.00 being cost of this suit.
The facts of this case briefly are that these Claimants, aggrieved by their purported dismissal as Supernumerary Police Officers attached to the 3rd Defendant, filed a suit before the High Court of Rivers State as suit no PHC/200M/2004 which in turn quashed their said dismissal and ordered their reinstatement including the payment of outstanding salaries, allowances, benefits, emoluments and other perquisites to them. Consequent upon the decision granted by the High Court, the 3rd Defendant herein (who was the 2ndDefendant at the High Court), complied with the fourth order of that Court wherein they paid some of the benefits of the Claimants but have failed to comply with the third order of the judgment/ruling which is for the redeployment of the Claimants to their original duty posts. Read paragraphs 6, 8 and 9 of the Statement of Facts dated 14/3/2016.
There is no doubt whatsoever that there is a subsisting judgment of the Rivers State High Court whereat certain declarations and orders were made in the judgment/ruling pronounced on the 27th of July, 2006. There is compelling need to reproduce the Orders of the Court per Justice J. M. Kobani for the sake of making the appropriate findings on the issue raised.
IN THE HIGH COURT OF RIVERS STATE OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT
SUIT NO: PHC/200M/2004
BETWEEN:
- P.C. GODSPOWER ENOCH
- P.C. EVANS NWADIG
AND
- COMMISSIONER OF POLICE
RIVERS STATE
- SHELL PETROLEUM DEV.
COMPANY OF NIG. LTD.
- ATTORNEY GENERAL
RIVERS STATE
ORDER:
UPON this matter coming up before this Court for hearing and determination, AND AFTER HEARING Tuduru Ede, Esq. of Counsel for the Applicants, L.A. Wilkey, Esq., of Counsel for the 2nd Respondent, the 1st and 3rd Respondents not represented but served,
(1) IT IS hereby declared that the preferment of 3 Count Criminal Charges against applicants to wit collecting the sum of N 17,290 bribe, acceptance of gratification and failure to report illegal oil bunkerers and orderly room trial of the Applicants on 23/2/2001 on the said charges, the punishment and recommendation of punishment therein as well as dismissal/discharge of the Applicants from the SPY Police Service attached to Shell Petroleum Development Company of Nigeria Limited therefore is unlawful, illegal, unconstitutional, null and void without jurisdiction.
(2) IT IS HEREBY declared that the preferment and subsequent trial of the Applicants on the said charges in (1) above by orderly room proceedings and consequent punishment awarded therein by the respondents, is unlawful, illegal, unconstitutional, null and void and without jurisdiction.
(3) IT IS HEREBY declared that the Applicants are still members of the SPY Police of Nigeria Police of the 1st Respondent attached to the 2nd Respondent and entitled to all the benefits, salaries, emoluments, allowances, etc.
(4) IT IS ORDERED that the 1st and 2nd Respondents be and are hereby directed to pay forthwith all arrears of salaries, benefits, emoluments, allowances of the Applicants outstanding to their credit since their unlawful and illegal dismissal from the SPY Police of the 2nd Respondent.
(5) IT IS ORDERED that the proceedings of the orderly room trial in (1) above conducted by the 1st and 2nd Respondents or their privies or agents be and is hereby quashed.
GIVEN AT PORT HARCOURT under the Seal of the Court and the Hand of the Presiding Judge this 27th day of July, 2006.
…………………………
HON. JUSTICE J. M. KOBANI.
The 3rd Defendant/Applicant now questions the propriety of filing a fresh suit in the face of a subsisting order of the High Court of Rivers State made over 12 years ago. To this question, the Claimants/Respondents have responded that the Orders of the High Court were merely declaratory orders against which a subsequent suit may be filed for their enforcements.
As persuasive as the assertion of the learned Counsel for the Claimants/Respondents seem to be in regards to this issue, I do in fact, find it difficult to accept that the orders made by my learned brother, Kobani, J. were all declaratory in nature. As may be gleaned from the order which was painstakingly reproduced above, the aspects of it where these Claimants were declared to be members of the SPY Police attached to the 3rdDefendant/Applicant herein and where their salaries, emoluments, benefits etc outstanding to them were ordered to be paid forthwith, are orders that are both declaratory and executory in nature. As such, Order numbers 3 and 4 of the High Court of Rivers State Judgment in suit number PHC/200M/2004 are both capable of being executed against the Defendants.
It is the Supreme Court’s view that “the end result of an action, whatever its nature and no matter how framed, is that the party who approaches the Court obtains the order he seeks; the order he seeks may be declaratory or executory. It is executory where the order declares the rights of the parties before the Court and then proceeds to enjoin the defendant to act in a certain way. It is declaratory where it merely proclaims the existence of a legal relationship, but contains no specific order to be carried out by, or enforced against, the defendant. In the first class of order (executory) it is necessary to have the assistance of the law enforcement agencies to carry out the order, if the order of the Court is disregarded; there is hardly any need for this in the second class of order (declaratory).” See CHIEF A. AKUNNIA V. ATTORNEY GENERAL, ANAMBRA STATE (1977) LPELR-394(SC).
In the case of OGUNLADE V. ADELEYE (1992) LPELR-2340(SC) the Supreme Court per OMO, J.S.C (on Pp. 9-10, paras. F-B) held that:
The decision in OKOYA V. SANTILLI (SUPRA) is relevant because it deals with the nature of declaratory and executory judgments, and the differences between them. Whilst the latter declare the respective rights of the parties and then proceed to order the defendant to act in a particular way, and is therefore immediately enforceable; the former merely proclaims or declares the existence of a legal relationship and do not contain any order which may be enforced against the defendant. See also GOVERNMENT OF GONGOLA STATE V. TUKUR (1989) 4 NWLR (PT.117) 592. Such declaratory judgments may be the ground or basis of subsequent proceedings in which the rights having been violated, receive enforcement (per Agbaje, J.S.C. at p. 199 of OKOYA V. SANTILLI (SUPRA).
I seem to be in awe of the fact that the Claimants/Respondents will find it convenient to now argue that the subsisting judgment of the High Court of Rivers State is merely declaratory in nature since they admit that they were paid certain sums of money by the 3rd Defendant to the tune of N 5, 093,752.62 each by cheques issued on the 3rd of March, 2008. (See paragraph 8 of their joint Statement of Facts filed on 17th March, 2016. If that aspect of the judgment were merely declaratory, how were they able to execute it then? Would it be correct to say that without the filing of a subsequent suit, the order by the High Court will remain dormant? The Claimants stated that several attempts were made by them to have the judgment of the High Court of Rivers State executed against particularly the 3rd Defendant/Applicant herein and although they were only given cheques for the amounts above quoted, they still believe they have further claims to make and as such they filed this action here for the various sums stated in their originating process being that the judgment obtained at the High Court was declaratory.
In describing whether an order by a Court to a Defendant to pay amount of money to the judgment creditor is either a declaratory or executory judgment, the Supreme Court overruling the pronouncement of the Court of Appeal per Galadima, JCA (as he was then) held per F.F. Tabai, J.S.C. (as he was then) in CARRENA V. AKINLASE (Supra) pages 14 – 15 as follows:
I have at the introductory part of this judgment, reproduced the three reliefs claimed. The first relief is clearly declaratory and there is no dispute about that. But what about the second and third reliefs? In the second and third reliefs the Plaintiffs/Appellants sought orders of the Court directing the Defendants/Respondents to pay damages for trespass and a perpetual injunction restraining them from any further acts of trespass. The Court granted these reliefs in the judgment. There was the specific order for the payment of damages for trespass to be carried out by or enforced against the Defendants/Appellants/Respondents. Similarly there is the order of injunction to be carried out by or enforced against them. In my consideration, the judgment of Fernandez, J on the 13th of November 1987 is not just declaratory but also executory. The court below, was, with respect therefore clearly in error when it held that the judgment was merely declaratory, containing no specific orders to be carried out by or enforced against the Defendant. It was, in addition to being declaratory also executory containing orders against the Defendants.
The matter begging for determination therefore is whether this current suit should be regarded as an abuse of court process?
I had already stated above that the judgment of the Rivers State High Court ordering the payments to these Claimants of all their outstanding salaries, benefits, allowances and emoluments is an executory judgment. Thus being the case, it will seem right to outrightly state that that judgment remains subsisting and capable of enforcement since it was valid as at the time it was made. The filing of a subsequent suit for the purpose of executing that judgment, does become an illegal step and indeed an abuse of this Court’s judicial process.
My opinion is further strengthened by the fact that what the Claimants are indeed attempting to do here, amounts to forum shopping. They seek for extraordinary monetary claims beyond what they had accepted from the Applicant herein. I agree with the Applicant also that the Claimants have not applied for an order of reinstatement as is obviously seen from their reliefs sought in their Complaint before me. The judgment of the High Court of Rivers State in respect to their individual rights to be reinstated, was clearly declaratory in nature but not in respect of the payment of their outstanding benefits and salaries. I do in fact, find ample reason to believe that they have been paid their outstanding salaries, benefits, and other allowances as translated in the sums of over N 5 Million each admittedly received by cheques since March 2008.
I quizzed myself about the reason why the Claimants have taken so long to come to Court in purported pursuit of any rights flowing from a valid decision of a competent Court of law. While this isn’t my kettle of fish as it was never raised in this application, however, assuming I even agree that these Claimants are public officers, wouldn’t they be time barred from instituting an action against their employers over 12 years after the cause of action arose?
Do I therefore find this matter to be an abuse of judicial process?
Without a doubt, the answer is in the affirmative!
On what amounts to an abuse of Court process, this Court has maintained that:
“…the circumstances that will give rise to abuse of process are not closed. Several other situations can give rise to abuse of court process. Whether a suit constitutes abuse of court process is a matter of the facts of each case. See NV SCHEEP vs. MV “S.ARAZ” (SUPRA) at589. The Supreme Court put it this way in R-BENKAY NIG. LTD vs. CADBURY NIG PLC (2012) All FWLR (Pt. 631) 1450 at 1466 Per Adekeye JSC-
The concept of abuse of court process is imprecise. It involves circumstances and situations of infinite variety and condition. But a common feature of it is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice.
His Lordship went on to observe that some circumstances which would constitute an abuse of court process include:
- Where a party has adopted the system of forum shopping in the enforcement of a conceived right;
- Where two actions are commenced, the second seeking for a relief which may be obtained in the first, the second action is vexatious and an abuse of court process.
See the NICN case of MR. CHIDI AKWARANDU V. BAKER HUGHES NIGERIA LIMITED (UNREPORTED) SUIT NO. NIC/PHC/78/2013 per Anuwe, J.
On what the Court should do when it finds that a suit is an abuse of Court process?
Once a court is satisfied that any proceedings before it is an abuse of court process, it has the power, indeed the duty, to dismiss it. See ARC vs. J.D.P CONSTRUCTION NIG. LTD (2003) FWLR (Pt. 153) 251 at 270.
The application is therefore allowed. This suit is accordingly dismissed.
No order as to cost. Judgment is entered accordingly.
Delivered this 17th day of May, 2018.
Hon. Justice Ibrahim Suleiman Galadima
Presiding Judge.
