PRINCE JAMES ADELEKE OSAYOMI & ORS V. GOVERNMENT OF EKITI STATE & ORS
(2013)LCN/6397(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 10th day of July, 2013
CA/EK/35/M/2013
RATIO
WORDS AND PHRASES: NEMO DEBEL BIS VEXARI PRO UNA ET EADEM CAUSA
The principle of abuse of judicial process has its foundation in public policy expressed in the latin maxim “nemo debel bis vexari pro una et eadem causa” meaning no one shall be subjected to defend the same cause twice. The notion of abuse of judicial process is in the ballpark. It involves the consideration of situations with respect to circumstances and conditions of boundless multifariousness. The prevailing hallmark consists in the intention, purpose or aim of the person exercising the right to harass, irritate and annoy the adversary; and the use of judicial process to interfere with the due administration of justice. See: Saraki V. Kotoye (1992) 9 NWLR (Pt.264) 156; Pavex International Coy. Ltd. v. IBWA (1994) 5 NWLR (Pt.347) 685; Dingyadi V. INEC (2011) All FWLR (Pt. 581) 1426. PER ALI ABUBAKAR B. GUMEL, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
1. PRINCE JAMES ADELEKE OSAYOMI
2. CHIEF RUFUS AJIBOYE OBAOYE
3. JOHNSON AGBOOLA (FOR THEMSELVES AND ON BEHALF OF IJIGBE, ISALU AND IWOYE-ODO RULING HOUSES RESPECTIVELY OF OSAN-EKITI) Appellant(s)
AND
1. GOVERNMENT OF EKITI STATE
2. THE ATTORNEY GENERAL OF EKITI STATE
3. SPECIAL ADVISER TO THE GOVERNOR ON CHIEFTAINCY MATTERS
4. YUSUF BABATUNDE ANISU
5. CHIEF J. A. ABORISADE Respondent(s)
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Lead Ruling): The Appellants/Applicants brought a motion on notice pursuant to: Order 7 Rules (1) and (10) of the Court of Appeal Rules 2011 and under the inherent jurisdiction of the court. The application dated and filed 6th March, 2013 seeks the following reliefs:
1. “LEAVE of the Honourable Court for extension of time within which the Applicants shall seek leave to appeal against the ruling of the Ekiti State High Court sitting at Ado Ekiti, Coram Honourable Justice Akintayo, delivered on 4th day of August, 2011 in Suit No: HIJ/20/93 between Prince James Adeleke Osayomi & 2 Ors. V. Government of Ekiti State & 5 Ors.
2. AN ORDER of the Honourable Court granting leave to the applicants to appeal against the ruling of Ekiti State High Court sitting at Ado-Ekiti Coram Honourable Justice Akintayo, delivered on 4th day of August, 2011 in Suit No: HIJ/20/93 between Prince James Adeleke Osayomi & 2 Ors. V. Government of Ekiti State & 5 Ors.
3. AN ORDER of the Honourable Court extending the time within which the Applicants shall appeal against the ruling of Ekiti State High Court sitting at Ado-Ekiti Coram Honourable Justice Akintayo, delivered on 4th day of August, 2011 in Suit No: HIJ/20/93 between Prince James Adeleke Osayomi & 2 Ors. V. Government of Ekiti State & 5 Ors.
4. AND for such further order or other orders as the Honourable Court may deem fit to make in the circumstance of this case.
The two sets of Respondents severally opposed the application by filling relevant processes. When the motion came up for hearing on 17th April, 2013, the court ordered learned counsel for the parties to file written addresses.
Following the court’s directive, the Applicants filed their written address prepared by Mr. Ajibola Aruleba on 30th April, 2013. In response Mrs. Bolanle Wale Awe Director Civil Litigation, Ministry of Justice, Ekiti State for the 1st to 3rd Respondents filed their written address on 24th May, 2013. On their own the 4th to 6th Respondents represented by Mr. Akintayo Aluko filed their written address on 17th April, 2013. Thereafter, Mr. Aruleba filed a reply on point of law to 4th to 6th Respondents’ written address on 24th May, 2013.
The motion was finally heard on 11th June 2013. Mr. Aruleba in moving the motion said the motion is dated and filed on 6th March, 2013. He referred to the Grounds for the application, the affidavit in support with 13 paragraphs and the attached exhibits marked Exhibits 1, 2 and 3. He equally identified and referred to their further and better affidavit dated and filed on 30th April, 2013. The learned counsel stated that upon the directive of the court, the Appellants/Applicants filed a written address. Then again upon the receipt of the 4th to 6th Respondents’ written address, learned counsel said the Appellants filed a reply on 24th May, 2013. He adopted all the processes herein above referred to and relied on them as their argument on this motion. He finally moved in terms of the motion paper and urged the court to grant the application.
Mrs. Wale Awe said in response, the 1st to 3rd Respondents filed a written address on 24th May, 2013 but deemed property filed and served on 11th June, 2013. She adopted and relied on same as their argument on the motion.
Mr. Akintayo Aluko for the 4th to 6th Respondents said in opposition they filed a counter affidavit of 12 paragraphs on 2nd April, 2013. They also filed a written address on 13th May, 2013. He adopted and relied on the written address as their argument while urging the court to dismiss the application.
From the affidavit and counter affidavit evidence before the court, the brief facts of the case can be stated thus.
Consequent upon the ruling of the High court of Ekiti State, sitting at Ado Ekiti, delivered on 4th August, 2011, in Motion No: HIJ/29/1993 wherein the learned trial Judge struck out the Appellants/Applicants suit on the ground that the action was incompetent. The Appellants/Applicants being dissatisfied filed a Notice of Appeal on 19th August, 2011. On becoming aware of the Notice of Appeal of the Applicants, the 4th to 6th Respondents filed a Respondents’ Notice contending that the decision of the trial court be affirmed on grounds other than those relied upon by the trial court.
While the record of appeal was yet to be compiled, on 14th February, 2013 the Applicants filed an application seeking the grant of their trinity prayers for the purpose of filing another Notice of Appeal. The ground for the application being that the amount paid at the Registry of the lower court for filing the earlier Notice of Appeal was not the appropriate fees for filing a Notice of Appeal. This application was withdrawn and struck out on 4th March, 2013 with a cost of N20,000.00 awarded in favour of the 4th to 6th Respondents.
Then again on 6th March, 2013 the Appellants/Applicants filed this present application for the reliefs as already set out above.
Both the Applicants and the 1st to 3rd Respondents did not formulate any issue in their written addresses but simply argued the motion straight. The 4th to 6th Respondents formulated two issues for determination. The issues are:
i. “Whether the application dated 6th March, 2013 does not amount to abuse of the process of this honourable Court in view of the subsisting Notice of Appeal filed by the applicants on the 19th August, 2011.
ii. Assuming without conceding that the said application is not an abuse of the process of this Court; whether the applicants have met, satisfied or fulfilled the conditions for the grant of extension of time to file notice of Appeal in the circumstance of this case.”
With my grasp of the facts and grounds for the application, the sole issue relevant for the determination of the motion on notice is:
“Whether given the facts and circumstances of the case the application is grantable”
I shall determine the application based on this sole issue.
In the Appellants/Applicants’ argument, they submitted that where a process is incompetent, the resultant effect will be the striking out of same. It was further submitted that even when a notice of appeal had been argued by parties and later found to be incurably defective, it must be struck out. See: Bello V. Adamu (2012) 3 NWLR (Pt. 1287) 289 – 299; Order 6 Rule 6 Court of Appeal Rules, 2011. The Applicants strengthened by the above, argued that when in the instant case the Notice of Appeal was found to be incurably defective, it became imperative that a fresh Notice of Appeal which complies with the Rules of court had to be filed.
The 1st to 3rd Respondents argued that since the first Notice of Appeal filed on 19th August, 2011 has not been withdrawn and no formal application for withdrawal of same is before the Court; if the present application is granted, there will be two separate Notices of Appeal before the Court. They submitted therefore, that the present application amounts to an abuse of Court process and cited: 7up Bottling Company Ltd V. Abiola & Sons Bottling Company Ltd (1996) NWLR (Pt. 463) 714; J. C. Ltd V. Ezenwa (1996) 4 NWLR (Pt.443) 391 at 398.
Learned Counsel urged the Court to allow the applicants to do the needful before filing this application.
The 4th to 6th Respondents contended that since the Notice of Appeal earlier filed by the Appellants/Applicants on 19th August, 2011 still subsists it was unnecessary and an abuse of court process for the Applicants to bring the present application seeking for extension of time and leave to file another Notice of Appeal. Reliance was placed on: Dingyadi V. INEC (2011) All FWLR (Pt. 581) 1426 at 1455 – 1456.
On the Applicants’ reason that they did not pay the appropriate fees for the earlier Notice of Appeal, the herein Respondents submitted that failure to pay appropriate fees does not raise the issue of jurisdiction and is incapable of affecting the proceedings of the court including the process. They relied on: Akpaji V. Udemba (2009) All FWLR (Pt. 471) 811 at 830-831. The Respondents emphasized the Supreme Court’s position in the above mentioned case that the inadvertence of the Registrar of the court below to correctly assess a process cannot be visited on the Applicants.
They further argued that it was not the place of the Applicants to raise the issue of incorrect fees for the Notice of Appeal since the Respondents did not raise any objection. It was added that even in the event that the Respondents objected to any short fall of the fees paid, the remedy will tie in the court’s order that the appropriate fees be paid. They cited: Akpaji V. Udemba (supra); Jonpal Ltd V. Afribank Nigeria Ltd (2002) 8 NWLR (Pt. 822) 290 at 305; Eke V. Eluwa (2000) 14 NWLR (Pt.688) 560 at 568; Omojuyigbe v. NIPOST (2010) All FWLR (Pt. 543) 1907 at 1953.
The learned counsel for the 4th to 6th Respondents urged the court to hold that the present application seeking trinity prayers to file another Notice of Appeal when the one filed on 19th August, 2011 over the same decision of the trial court subsists constitutes an abuse of court process and same is liable to be struck out.
In the Applicants’ reply on points of law, they referred the court to instances where the court can hold that a process is an abuse of court process. See: Seven Up Bottling Company Ltd V. Abiola & Sons Bottling Company Ltd (1996) 7 NWLR (Pt.463) 714; Pavex International Company. Ltd V. IBWA (1994) 5 NWLR (Pt. 347) 685; Agwasim V. Ojichie (2004) 10 NWLR (Pt.882) 613.
The Applicants submitted that the Notice of Appeal dated 19th August, 2011 does not exist in the eye of the law since the requisite fees was not paid as provided for in Order 12 Rule 1 of the Court of Appeal Rules, 2011 as per the Third Schedule, The learned counsel argued that in the light of the above, no process of the court can be said to have been abused. He further urged the court to hold that lack of objection and no amount of consent of the Respondents can make the invalid legal Notice of Appeal filed on 19th August, 2011 valid. He referred to the Supreme Court decision in Madukolu V. Nkemdilim (1962) 1 All NLR 587 at 593, to say the condition precedent for the filing of the Notice in question was not fulfilled and as such the court is not competent to hear same. He also referred to: Onwugbufor & Ors V. Okoye & Ors (1996) 1 NWLR (Pt. 424) 252; Seven Up Bottling Co Ltd v Yahaya (2001) 4 NWLR (Pt.702) 47; Abia Transport Corporation & Ors V. Quorum Consortium Ltd (2009) 9 NWLR (Pt.1145) 1.
Learned counsel emphasized that subsequent to the Supreme court decision on 13th February, 2009 in Akpaji V. Udemba (2009) All FWLR (Pt. 471) 811, the apex court in Abia State Transport Corporation V. Quorum Consortium Ltd (supra) in a unanimous decision followed their earlier decision in Onwugbufor V. Okoye (supra); that the payment of prescribed fees by all litigants, except Government, is a precondition to the validity of any process filed in the court and unless the condition is satisfied, the court will tack jurisdiction to entertain the process.
Mr. Aruleba submitted that since this court in the instant is faced with two conflicting Supreme Court decisions, it is allowed to choose which one to follow between the two. He relied on: G.T.B V. Fadco Ind. Ltd. (2007) 7 NWLR (Pt. 1033) 325. Learned counsel urged the court to follow the apex court decision in Abia State Transport Corp. V. Quorum Consortium Ltd (supra).
Both parties are in consent that there is a subsisting Notice of Appeal filed on 19th August, 2011. Also, that this said Notice of Appeal does not comply with Order 12 Rule 1 of the Court of Appeal Rules 2011 and as such defective. Being defective, the Applicants’ contention is that they are expected in law to file another Notice of Appeal. For this they have come with the trinity prayers to be allowed by the Court to file another Notice of Appeal. On their own, the two sets of Respondents’ contention is not that the Applicants cannot file a fresh Notice of Appeal as their Notice of Appeal is incompetent. Their argument is that it is an abuse of court process for them to apply to be allowed to file another Notice of Appeal while there is a pending Notice of Appeal before the court.
From the issue under consideration, this is the material dispute that needs to be resolved as against the four of issue made by the parties.
The principle of abuse of judicial process has its foundation in public policy expressed in the latin maxim “nemo debel bis vexari pro una et eadem causa” meaning no one shall be subjected to defend the same cause twice. The notion of abuse of judicial process is in the ballpark. It involves the consideration of situations with respect to circumstances and conditions of boundless multifariousness. The prevailing hallmark consists in the intention, purpose or aim of the person exercising the right to harass, irritate and annoy the adversary; and the use of judicial process to interfere with the due administration of justice. See: Saraki V. Kotoye (1992) 9 NWLR (Pt.264) 156; Pavex International Coy. Ltd. v. IBWA (1994) 5 NWLR (Pt.347) 685; Dingyadi V. INEC (2011) All FWLR (Pt. 581) 1426.
Let me observe at this point that the Notice of Appeal filed on 19th August, 2011 is against the ruling of Ekiti State High Court sitting at Ado-Ekiti delivered on 4th August, 2011 in Motion: No. HIJ/29/1993 between Prince James Adeleke Osayomi V. Government of Ekiti State & Ors. The appeal is against the Government of Ekiti State, Attorney General of Ekiti State, Special Adviser to the Governor on Chieftaincy matters, Yusuf Babatunde Anisu, Chief J.A. Aborisade and Julius Ogunkayo. The said Notice of Appeal is currently pending before this court. The reliefs sought are as set out earlier this ruling.
I will pause here to note that the trinity prayers are not supported by the facts deposed to in the affidavit particularly Exhibit 1 attached. The prayers seek leave and extension of time to appeal against the ruling in Suit No: HIJ/20/93. Paragraphs 3, 4 and 11 of the affidavit in support of the motion refer to Exhibits 1, 2 and 3; the ruling sought to be appealed against, Notice of Appeal and Proposed Notice of Appeal respectively. Exhibit 1 is a ruling on Motion No: HIJ/29/1993, Exhibits 2 and Exhibit 3 relate to Suit No: HIJ/20/93. It follows that Exhibit 1 not the ruling of the lower court sought to be appealed against by virtue of the trinity prayers on the face of the motion paper, Notice of Appeal and the Proposed Notice of Appeal jointly and severally. The situation is more muddled up by the fact that Exhibit 1 does not contain the detailed names of the parties. The court is therefore left wanderlust for the decision of the lower court the Appellants/Applicants’ application relates to. Speculation is not part of the functions of the court. This court is a court of record and the record before it must at each point speak explicitly for itself. The record must speak in a way that the court will, with certainty; understand the point it is making and follow same to arrive at a just decision. The instant application lacks this flavour. The attached Exhibits do not speak with one voice; the speech of Exhibit 1 is inconsistent with that of Exhibits 2 and 3; and the trinity prayers.
It is my opinion that the Applicants have failed to show through their affidavit evidence the existence of a ruling of the lower court which they seek to appeal against. Consequently the application is incompetent and not grantable for the said reason.
In case the above position is based on technicality. Let me consider the issue. I had earlier set out the parties and the prayers in detail for the obvious reason which is to establish in absolute clarity that the Notice of Appeal filed on 19th August, 2011 has the same intent and purpose as the outcome of the present trinity prayers of the Appellants/Applicants when granted. In other words the Applicants want the court to grant them leave to file a fresh Notice of Appeal against the same ruling and parties as the pending Notice of Appeal.
The status or competence of the subsisting Notice of Appeal at this stage is immaterial. The relevant questions are: is the Notice of Appeal filed on 19th August, 2011 still pending, is the said Notice of Appeal against the same parties and ruling the fresh Notice of Appeal if filed will be appealing against? The answers are in the affirmative. This is to say the same ruling and parties already appealed against by the Appellants/Applicants are the same parties and ruling they are seeking leave and extension of time to appeal against for the second time. This is not allowed by the principle of abuse of judicial process. The Appellants are not permitted in law to appeal against the same ruling and parties twice. The fact that the pending Notice of Appeal is defective or incompetent does not alter the principle of abuse of judicial process, accordingly the authorities cited by counsel on both sides on this point are not relevant. Even where as in the instant application the pending notice of appeal is incompetent, the said notice ought to be struck out first, either upon the application of the Appellants or by the court suo motu before a fresh notice of appeal can validly be applied for and granted to be filed.
The decision of this court Per Orji-Abadua, J.C.A. in Bello v. Adamu (2012) 3 NWLR (Pt.1287) 289 cited by the Applicants’ counsel is of sound reasoning but does not in any way assist the Applicants in this application. The court in the referred case maintained that the resultant effect of an incompetent process will be the striking out of same to allow the affected party file a fresh Notice of Appeal if he so desires. In the instant, the incompetent Notice of Appeal has not been struck out. There is no application before the Court seeking that it be struck out. So there is therefore no room for a fresh Notice of Appeal to be filed. Any attempt to file a fresh Notice of Appeal while the Notice filed on 19th August, 2011 is still pending is an obvious abuse of judicial process.
In sum, I hold that the Motion of Notice dated and filed 6th March, 2013 by the Appellants is an abuse of court process. The sole issue is resolved in favour of the Respondents. The application lacks merit and is therefore dismissed. I award a cost of N20,000.00 (Twenty Thousand Naira) only, in favour of the 4th – 6th Respondents.
JIMI OLUKAYODE BADA, J.C.A.: I had the opportunity of reading in draft the lead Ruling of my Lord, UCHECHUKWU ONYEMENAM, J.C.A, just delivered.
My Lord has dealt with the issue in this application appropriately. I have nothing to add.
The application lacks merit and it is also dismissed by me. I endorse the order on costs.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the privilege of having a preview in draft of the elucidating lead ruling just delivered by my learned brother, Uchechukwu Onyemenam, JCA. I am in complete agreement with the review, reasoning and resolution of the sole issue raised in the instant application coupled with the final conclusion reached thereon. I adopt them as mine. Thus, I also find that the application is not grantable as it lacks merit and there is no sound basis whatsoever for bringing it in the first instance. The application being an abuse of court process is accordingly dismissed by me. I also abide by the order regarding costs.
Appearances
Ajibola Aruleba with Abayomi AkanleFor Appellant
AND
Mrs Bolanle Wale-Awe: Director Civil Litigation Ekiti State with Julius Ajibare: Chief Legal Officer,
Mrs Yetunde Kolawole: Senior Legal Officer Ministry of Justice, Ekiti State for 1st – 3rd Respondents
Akintayo Aluko with Olanrewaju Jayeoba, Oluwafemi Ojo for 4th – 6th RespondentFor Respondent
