THE REGISTERED TRUSTEES OF NIGERIAN ASSOCIATION OF PATENT & PROPRIETARY MEDICINE DEALERS v. PHARMACIST COUNCIL OF NIGERIA & ANOR
(2019)LCN/13135(CA)
(2019) LPELR-47540(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 17th day of April, 2019
CA/B/48/2015
JUSTICE
SAMUEL CHUKWUDUMEBI OSEJI justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE justice of The Court of Appeal of Nigeria
MOORE ASEIMO AB RAHAM ADUMEIN justice of The Court of Appeal of Nigeria
Between
THE REGISTERED TRUSTEES OF NIGERIAN ASSOCIATION OF PATENT & PROPRIETARY MEDICINE DEALERSAppellant(s)
AND
1. PHARMACIST COUNCIL OF NIGERIA
2. FEDERAL MINISTER OF HEALTHRespondent(s)
RATIO
DEFINITION AND FACTORS THAT CONSTITUTES AN ABUSE OF COURT PROCESS
The Blacks Law Dictionary, 9th Edition at page 10 defined the phrase 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 processs scope.
In the recent decision of the Supreme Court in ALLANAH & ORS. VS. KPOLOKWU & ORS (2016) LPELR 40724 (SC), the features of abuse of Court process were detailed as follows per Sanusi JSC:
The common feature of abuse of Court process centres on improper use of judicial process by a party in litigation aimed or targeting on interference with due administration of justice. To my mind, some of the features of abuse of Court process include the undermentioned 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 opponents on the same issues or numerous actions on the same subject 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 a Respondents 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 OKOROCHA VS. PDP (2014) 7 NWLR (PT. 1406) 213; SARAKI VS. KOTOYE (1992) 9 NWLR (PT. 264) 156; OGOEJEOFO VS. OGOEJEOFO (2006) 3 NWLR (PT. 966) 206.
See also the case of AFRICAN REINSURANCE CORPORATION VS. JPD CONSTRUCTION (NIG) LTD (2003) LPELR 215 (SC) where the apex Court per Niki Tobi JSC (now of blessed memory) gave the meaning of abuse of Court judicial process as:
Where a party duplicates a Court process, the more current one which results in the duplication is regarded as an abuse of Court process. Abuse of process of Court is a term generally applied to a proceeding which is wanting in bonafide and is frivolous, vexatious or oppressive. Abuse of process can also mean abuse of legal procedure or improper use of legal process as is in this case. See AMAEFULE VS. THE STATE (1988) 2 NWLR (PT. 75) 156. An abuse of process always involves some bias, malice, some deliberateness, some desire to misuse or pervert the system. See EDET VS. THE STATE (1988) 4 NWLR (PT. 91) 722. There is said to be an abuse of process of the Court when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, such as instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues, as in the instant case.
See also PML (NIG) LTD VS. F.R.N. (2017) LPELR 43480 (SC); OSUN STATE INEC & ANOR. VS. NATIONAL CONSCIENCE PARTY & ORS.(2013) 9 NWLR (PT. 1360) 451; IKINE VS. EDJERODE (2001) 92 LRCN 3288; OKORODUDU VS. OKOROMADU (1978) SC 21.
In UKACHUKWU VS. PDP & ORS. (2013) LPELR 21894 SC, the Apex Court also held that, to institute an action during the pendency of another one claiming the same relief amounts to an abuse of Court process and it does not matter whether the matter is an appeal or not as long as the previous action has not been finally disposed of. It is the subsequent action that is an abuse of process of Court. PER OSEJI, J.C.A.
WHETHER OR NOT A PARTY WILL BE ALLOWED TO RELITIGATE ANY OF THE ISSUES ALREADY LITIGATED UPON
It is trite that a party will not be allowed to relitigate any of the issues already litigated upon as he will be estopped from doing so. Hence the Supreme Court in Ebba Vs. Ogodo (2000) 10 NWLR Pt. 675 P. 378 at 420 (Ejiwunmi JSC) held that where a party brings an action against another for a particular cause and judgment is given upon it, there is a strict rule that he cannot bring another action against the same party of the same cause. Furthermore, that once an issue has been raised and distinctly determined between parties then as a general rule, neither party can be allowed to fight that issue all over again. The same issue cannot be raised by either of them again in the same or subsequent proceedings except in special circumstances which circumstances has not been satisfactorily canvassed by this Plaintiff. Furthermore, in Daggash Vs. Bulama (2004) All FWLR Pt. 212 at P. 1723 the Court on issue estoppels held that when the question is whether the doctrine of issue estopped is applicable to a case or not, the important question to ask are whether the parties are the same, whether the issues are the same, whether the issues are material to the cause of action in the previous and in the later case and whether that issue has been resolved in the previous case. This principle is founded in other to prevent parties from relitigaing the same issue over and over again. Ikeni Vs. Efamo (2001) 87 LRCN p. 1690 at p. 1714 paragraph G.” PER OSEJI, J.C.A.
WHETHER OR NOT A COURT HAS THE DUTY TO PRONOUNCE ON ALL ISSUES RAISED BEFORE IT
It has been emphasised in a number of authorities that there is need for every Court or Tribunal to make findings and pronounce on material or fundamental issues canvassed before it by the parties because failure to do so may result in a miscarriage of justice. Consequently, a Court has the duty to pronounce on all issues raised before it. See OKPALA & SONS LTD. VS. NIGERIA BREWERIES PLC (2017)LPELR 43826 (SC); KATTO VS. CBN (1991) 9 NWLR (PT. 240) 126; HONEYWELL FLOURMILLS PLC VS. ECOBANK (NIG) LTD (2018) LPELR 45127 (SC); 7UP BOTTLING COMPANY VS. ABIOLA SONS BOTTLING COMPANY LTD. (2001) 6 SC 73; ADESINA & ANOR VS. OJO & ORS. (2012) LPELR 13750 (CA); STATE VS. AJIE (2000) 11 NWLR (PT. 679) 434; AGBO VS. STATE (2006)1 SC (PT 4) 73; OYEFOLU & ORS. VS. DUROSINMI (2001) 16 NWLR (PT. 738) page 1. PER OSEJI, J.C.A.
WHETHER OR NOT AN OBJECTION TO THE JURISDICTION OF A COURT GOES TO THE ROOT OF ADJUDICATION
It has been held via numerous authorities that an objection to jurisdiction of the Court is a threshold issue. It goes to the root of adjudication, and touches on the competence of the Court to entertain the matter. Thus, where it is raised, it must be taken first before any further step is taken in the matter, because, where a Court lacks jurisdiction to entertain a matter, the whole proceedings becomes a nullity. See OJUKWU VS. OJUKWU (2008) 18 NWLR (PT. 1119) 439; OPARA & ANOR VS. AMADI & ANOR (2013) 12 NWLR (PT. 1369) 512; ISHOLA VS. AJIBOYE (1994) 6 NWLR (PT. 352) 506. PER OSEJI, J.C.A.
WHETHER OR NOT A PARTY CAN INSTITUTE AN ACTION AGAINST THE SAME PARTY FOR THE SAME CAUSE WHERE JUDGEMENT HAS BEEN GIVEN ON IT
The law is that if a party brings an action against another for a particular cause and judgment is given on it, he cannot institute another suit against the same party for the same cause. However, within one cause of action, there may be several issues once an issue has been raised in a case and is determined between the parties, the same issue cannot be raised again by either of the parties in the same or subsequent proceedings. See Ladegha Vs. Durosinmi (1978) 3 SC 82; Bamishebi Vs. Faleye (1987) 2 NWLR (pt. 54) 51; Adigun Vs. Governor of Osun State (1995) 3 NWLR (pt. 385) 513.
See also IKENI VS. EFAMO (2001) 10 NWLR (PT. 720) 17 (SC). PER OSEJI, J.C.A.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court sitting in Benin Judicial Division and delivered by P.I. Ajoku J. on the 12th day of January, 2015 wherein the plaintiffs (now Appellant) case was struck out for constituting an abuse of Court process.
The facts and circumstances that led to this appeal are that the Appellant herein instituted an action against the two defendants (now Respondents) at the Federal High Court, Asaba in 2001. The suit No. is FHC/ASB/CS/209/2011. The reliefs claimed in the said suit are as follows:
i. An order of this Court declaring the 2nd Defendants delegation of authority to issue propriety and patent medicines vendors license to the 1st Defendant improper.
ii. An order of this Honourable Court mandating the 2nd Defendant to take up its responsibilities of issuance of patent and propriety medicine vendors license to members of the Plaintiff.
iii. An order of this Honourable Court enforcing the said agreement between the 2nd Defendant and the Plaintiff made on 22nd day of
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December 1997.
iv. An order of this Honourable Court declaring the incessant raid and invasion of the Plaintiffs members shops in Asaba and Warri thereby carting away drugs and non drug items illegal, null and void.
v. An order of this Honourable Court declaring the documents entitled Approved patent medicine list and the Guideline on the issuance of license to the Plaintiff by the 1st Defendant null and void and of no effect as same is calculated to keep the members of the Plaintiff out of business.
vi. Declaration that Section 1(1) of the Pharmacists Council Act, Cap 17 Laws of the Federation of Nigeria 2004 does not empower the 1st Defendant to issue license on the members of the Plaintiff.
vii. An order of this Honourable Court declaring Section 1(1) (a e) of the Pharmacist Council Act Cap 17 Laws of the Federation 2004 null and void.
viii. The sum of N10,000,000.00 (Ten Million Naira) being general and exemplary damages in that the 1st Defendant invaded and raided the shops of the Plaintiffs members thereby carted away drugs and non-drug items therein.
ix. An order of Injunction restraining the 1st
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Defendant, its agents, servants, privies or otherwise howsoever from further interfering with the business of the Plaintiff and its members.
While the matter was still pending in the aforementioned Court another action was filed by the Appellant in Benin Division of the same Court in suit No. FHC/B/CS/64/2013. Wherein the following reliefs were claimed against the Respondent as defendants:
i. An order of this Honourable Court declaring the conducts and or acts of the 1st Defendant compelling the members of the Plaintiff to relocate their patent medicine stores from the urban areas to the interior or rural areas in order to give way to the medicine vendor pharmacist, unlawfully null and void and of no effect.
ii. An order of this Honourable Court declaring the relocation order issued the members of the Plaintiff by the 1st Defendant null and void and of no effect.
iii. An order of this Honourable Court compelling the 1st Defendant to return and or refund to the members of the Plaintiff all the money and or monies collected from them purporting same to be for sign posts and or licenses, which was never issued or given.
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iv. An order of this Honourable Court enforcing the Agreement made between the Plaintiff and the 2nd Defendant on the 22nd day of December 1997 regarding the issuance, renewal of licenses and control of the patent medicine dealers.
v. An order of injunction restraining the 1st Defendant, itself, agents, servants, privies or, otherwise howsoever from further interfering in any form or manner with the business of the members of the Plaintiff.
Subsequently, the 1st Respondent filed a notice of preliminary objection dated 4/12/2013 and brought pursuant to Section 6(6) and 15(5) of the 1999 Constitution; and Order 26 Rule (1) of the Federal High Court Rules 2009 praying the Court for the following orders:
An order of this Honourable Court dismissing and/or striking our this suit in its entirety.
The grounds for the preliminary objection are stated as follows:
(1) That this suit constitutes an abuse of Court process.
(2) That this suit is incompetent and amounts to forum shopping.
(3) That this Honourable Court lacks the jurisdiction to entertain this suit as the subject matter in suit No. FHC/CS/209/2011 was decided
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at the Federal High Court, Asaba on 5//11/2013, a Court of concurrent jurisdiction.
The said preliminary objection was supported by a 10 paragraph affidavit and a copy of the judgment was attached as Exhibit A.
The Appellant also filed a counter affidavit of 17 paragraphs and the 1st Respondent also responded with a reply to the counter affidavit.
Upon the adoption of the parties written addresses, the trial Court delivered a ruling on the 12th day of January, 2015 wherein it was held thus:
Having reviewed as above, I have no doubt in my mind that the instant suit constitutes an abuse of the process of this Court. I accordingly strike same out. I make no order as to costs.
Aggrieved with the outcome of the said ruling, the Appellant filed a notice of appeal containing five grounds on 16/2/2015.
Briefs of argument were subsequently filed and served by the parties who adopted and relied on their respective briefs at the hearing of the appeal on 6/2/2019.
In the Appellants brief of argument settled by O.G. Izevbuwa Ph.D and Q.F Akharekhandia (Mrs) and filed on 9/2/2016 the following two
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issues were formulated for determination.
(1) Whether reliefs 1, 2 and 3 in suit No. FHC/B/CS/64/2013 are reliefs which can be said to have been resolved in an earlier suit No. FHC/CS/209/2011 for same to constitute an Estoppel and thus an abuse of court process. (Grounds 1, 2 and 3)
(2) Whether Respondents failure to comply with the provision of Order 16 Rule (1) (2) has not occasioned miscarriage of justice in this case. (Ground 4).
In the Respondents brief of argument settled by Ehinon Okoh Esq., and filed on 10/10/2017, the following sole issue was distilled for determination:
Whether or not there is any merit in the Appeal to warrant the setting aside of the Ruling of the trial Judge by the Court of Appeal.
I will adopt the two issues as raised by the Appellant in the consideration of this appeal.
ISSUE NO. 1
Dwelling on this issue learned counsel for the Appellant referred to the nine reliefs claimed in suit No. FHC/CS/209/2011 by the Appellant and compared it with the five reliefs claimed in suit No. FHC/CS/64/2013 to submit that a careful perusal of the two sets of reliefs will show
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that the issues and or subject matter are substantially different without much ado.
On the three conditions to be satisfied for a valid plea of estoppels per rem judicata to apply he cited the cases of EBBA VS. OGODO & ORS. (2000) 10 NWLR (PT. 675) 387 at 407; ABUBAKAR VS. BEBEJI OIL & ALLIED PRODUCTS LTD & ORS. (2007) 147 LRCN 1091 at 1128; IKOKU VS. EKEUKWU (1995) 7 NWLR (PT. 410) 637 at 652.
He added that the three conditions must co-exist for a plea of estoppel to succeed. He noted also that the judgment in suit No. FHC/CS/209/2011 is a final judgment and the parties are the same but contended that the issues or subject matter in both cases are not the same especially as it relates to reliefs 1, 2 and 3 in suit No. FHC/CS/64/2013 which borders on the activities of the 1st Respondent in Edo State while relief 4 in Suit No. FHC/CS/209/2011 relate to the act of the 1st Respondent in raiding the Appellants medicine shops in Asaba and Warri and such has no bearing with the acts complained of in Suit No. FHC/CS/64/2013.
While noting that the learned trial Judge rightly posed the question whether the issues raised in the earlier
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case are the same in the instant suit, learned counsel submitted that the learned trial Judge however gave the wrong answer not backed by the available facts in the printed records because in suit No. FHC/Cs/209/2011 what the Court was invited to decide is different from the issue in the present case. He cited in support the following cases: AFRIKBANK (NIG) PLC VS. VESA FOODS AGENCIES LTD & ORS. (2006) 2 WRN 66 at 90 and WESTERN STEEL WORKS LTD. VS. IRON & STEEL WORKERS UNION (1986) 3 NWLR (PT. 30) 617.
Also referring to paragraphs 11, 12 and 13 of the 1st Respondents statement of defence, counsel submitted that therein they admitted collecting money from the Appellants members for licensing but denied ever asking them to relocate except those who are yet to register and this further confirms that the issues between the parties in both suits are not the same in which case issue estoppel cannot be called in aid by the 1st Respondent vide ABIA STATE & ORS. VS. CROSS RIVER STATE PROPERTY & INVESTMENT LTD. (2007) 28 WRN 150 at 176.
Further in support of the contention that reliefs 1, 2 and 3 in the present suit were not
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decided in the previous suit thereby rendering the subject matters at variance with each other, counsel cited the following cases. IKENI & ANOR. VS. EFAMO & ORS. (2001) 87 LRCN 1690 at 1697; OLAYINKA VS. ADEPARUSI & ANOR. (2012) 43 WRN 128 at 155.
Learned counsel however conceded that reliefs 4 and 5 in suit No. FHC/CS/64/2013 are the same with reliefs 3 and 9 in suit No. FHC/CS/209/2011 but argued to the effect that such situation will not justify the coming into play of estoppel because it cannot be rightly posited that the trial Court in such a situation has correctly decided on the rights of the parties. Alternatively, it was contended that at best the offending reliefs should be struck out while reliefs 1, 2 and 3 are given proper hearing because they are reliefs not present in the previous suit.
On issue 2, learned counsel relied on the case of ADEYEFA & 2 ORS. VS. BAMGBOYE (2014) 35 WRN 1 at 22 to submit that the 1st Respondent did not specifically plead estoppel in their statement of defence neither was the said judgment in suit No. FHC/CS/209/2011 pleaded anywhere to justify it being raised by way of an objection.<br< p=””>
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Learned counsel further referred to Order 16 Rules 1, 2(1) and (2) of the Federal High Court (Civil Procedure) Rules 2009 to submit that demurrer has been abolished therein and any party shall only be entitled to raise by his pleadings any point of law and where so raised, it shall be disposed of by the Judge before or after trial.
He added that the trial Court refused or neglected to make a pronouncement on such essential point of law which is hinged on obedience to the specific Rules of Court especially where such provisions use the mandatory word shall. In support, he cited the following cases: ADELAKUN VS. ORUKU (2007) 17 WRN 89; OCTS EDUCATIONAL SERVICES LTD. VS. PADSON INDUSTRIES LTD. (2012) 47 WRN 102 and G.M. NWORAH & SONS LTD. VS. AKPUTA ESQ (2011) 191 LRN 153 at 181.
Counsel then urged this Court to resolve the two issues in favour of the Appellant.
Replying as per their own sole issue, learned counsel for the Respondents noted that the Appellant instituted suit No. FHC/CS/209/2011 in the year 2011 against the Respondents at the Federal High Court Asaba and on 15/5/2013, while the said suit was pending, the present
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suit was filed in the Federal High Court, Benin Division with respect to the same subject matter and by 5/11/2015 judgment was delivered against the Appellant in the first suit.
It was therefore submitted that by filing the present suit while another one was pending in another Court amounts to abuse of Court process and this rob the Court of the jurisdiction to entertain same.
On what constitute abuse of Court process, learned counsel cited the following cases: AKINWALE VS. AKINWALE (2010) 31 WRN 127; ABUBAKAR VS. BEBEJI OIL & ALLIED PRODUCTS LTD. (2007) All FWLR (PT. 362) 1855; DINGYADI & ANOR. VS. INEC & 2 ORS. (2001) 201 LRCN; OKAFOR VS. A.G. ANAMBRA STATE (1991) 6 NWLR (PT. 200) 659; OGOEJEOFO VS. OGOEJEOFO (2002) 12 NWLR (PT 780) 171.
On the Appellant counsels contention that the issues in the previous and present suit are different, learned counsel relied on the case of SARAKI VS. KOTOYE (1992) 9 NWLR (PT. 264) 156 to submit that instituting different actions between the same parties simultaneously in different Courts even though on different grounds would amount to abuse of Court process.
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Furthermore, it was submitted that this suit is caught by issue estoppel. On the conditions to be satisfied for a successful plea of estoppel, counsel relied on the following cases. OKE VS. ATOLOYE (NO. 2) (1986) 1 NWLR (PT. 15) 241; YOYE VS. OLUBODE (1974) 1 All NLR (PT. 2) 118; FADIORA VS. GBADEBO (1978) 3 SC 219.
Learned counsel also submitted that the reliefs sought in the present suit basically challenged the authority of the 1st Respondent to regulate the conduct of the Appellant and in the previous judgment the Court had resolved the issue wherein it held that the 2nd Respondent acted within its powers by delegating the issuance of patent and proprietory medicine license to members of the Appellant to the 1st Respondent. He added that though couched differently, the reliefs in the two different suits are the same and this amounts to relitigating an issue already resolved by a Court of competent jurisdiction. He relied on the case of EBBA VS. OGODO (2000) 10 NWLR (PT. 675) 378 at 420.
On the Appellant counsels contention that estoppel was not specifically pleaded by the Respondents in their statement of defence, it was submitted that where the jurisdiction
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of a Court is being questioned, it does not require that it must be pleaded before it can be raised because even the trial Judge can raise it suo motu. On the other hand, it was argued that abuse of process having been identified as an issue of jurisdiction, the Court reserves the right and jurisdiction to protect itself from abuse of its process, vide DINGYADI VS. INEC (2011) 4 SC (PT. 1) page 1 and ODEDO VS. INEC (2008) 7 SC 25.
It was then urged on this Court to resolve the issue in favour of the Respondents and dismiss the appeal.
The basis for the preliminary objection which was upheld with the resultant dismissal of the suit filed by the Appellant in the trial Court are on two grounds. Firstly, that the said suit was an abuse of Court process and secondly, that it was caught by issue estoppel.
On the aspect of abuse of Court process, the Respondent had relied on a number of authorities to contend that having filed suit No. FHC/CS/209/2011 in the year 2011 and the parties being the same, the Appellant ought not to file another suit No. FHC/CS/64/2013 two years later in Benin Division of the same Federal High Court.
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The Appellant is however of the stance that the reliefs claimed in the two suits are not the same, especially reliefs 1, 2 and 3 in the present suit which are entirely at variance with those claimed in the previous suit.
The Blacks Law Dictionary, 9th Edition at page 10 defined the phrase 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 processs scope.
In the recent decision of the Supreme Court in ALLANAH & ORS. VS. KPOLOKWU & ORS (2016) LPELR 40724 (SC), the features of abuse of Court process were detailed as follows per Sanusi JSC:
The common feature of abuse of Court process centres on improper use of judicial process by a party in litigation aimed or targeting on interference with due administration of justice. To my mind, some of the features of abuse of Court process include the undermentioned 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 opponents on the same issues or numerous actions on
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the same subject 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 a Respondents 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 OKOROCHA VS. PDP (2014) 7 NWLR (PT. 1406) 213; SARAKI VS. KOTOYE (1992) 9 NWLR (PT. 264) 156; OGOEJEOFO VS. OGOEJEOFO (2006) 3 NWLR (PT. 966) 206.
See also the case of AFRICAN REINSURANCE CORPORATION VS. JPD CONSTRUCTION (NIG) LTD (2003) LPELR 215 (SC) where the apex Court per Niki Tobi JSC (now of blessed memory) gave the meaning of abuse of Court judicial process as:
Where a party duplicates a Court process, the more current one which results in the duplication is regarded as an abuse of Court process. Abuse of process of
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Court is a term generally applied to a proceeding which is wanting in bonafide and is frivolous, vexatious or oppressive. Abuse of process can also mean abuse of legal procedure or improper use of legal process as is in this case. See AMAEFULE VS. THE STATE (1988) 2 NWLR (PT. 75) 156. An abuse of process always involves some bias, malice, some deliberateness, some desire to misuse or pervert the system. See EDET VS. THE STATE (1988) 4 NWLR (PT. 91) 722. There is said to be an abuse of process of the Court when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, such as instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues, as in the instant case.
See also PML (NIG) LTD VS. F.R.N. (2017) LPELR 43480 (SC); OSUN STATE INEC & ANOR. VS. NATIONAL CONSCIENCE PARTY & ORS.(2013) 9 NWLR (PT. 1360) 451; IKINE VS. EDJERODE (2001) 92 LRCN 3288; OKORODUDU VS. OKOROMADU (1978) SC 21.
In UKACHUKWU VS. PDP & ORS. (2013) LPELR 21894 SC, the Apex Court also held that, to institute an action during the pendency of another one claiming the
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same relief amounts to an abuse of Court process and it does not matter whether the matter is an appeal or not as long as the previous action has not been finally disposed of. It is the subsequent action that is an abuse of process of Court.
Based on the above decision of the Supreme Court inclusive of the ones earlier referred to in this judgment, the major factor constituting an abuse of Court process is the existence of two different actions filed by a party to a suit either in the same or another Court on the same subject matter or seeking the same relief as the first suit against the same party. In other words, there must be the existence of a pending action in the Court between the same parties on the same issue or subject matter and one of the parties proceeds to commence one or more other actions in another Court based on the same facts and circumstance before it can be termed as an abuse of Court process for being vexatious, irritating and intimidating to both the other party and the Court.
It seems however, that where the previous or original action has been disposed of it will no longer be a case of abuse of Court process because there are
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no two pending actions in existence on between the same parties on the same subject matter. Where only the subsequent action is found to be pending between the same parties on the same issue or relief, what will come into play in the circumstance is issue estoppel or estoppel per judicata. By definition, it has gone beyond the realm of multiplicity of action leading to abuse of process.
In the instant case a perusal of the record show that the preliminary objection seeking the order of Court to dismiss or strike out the suit No. FHC/CS/64/2013 on the ground that it is an abuse of process was filed on 8/12/2013.
Judgment on the previous suit No. FHC/CS/209/2011 was delivered on 5/11/2013. The notice of preliminary objection was filed on 8/12/2013 at which time the only pending suit was FHC/Cs/64/2013. To my mind therefore and given the features of an abuse of Court process as highlighted in the authorities earlier referred to in this judgment, particularly UKACHUKWU VS. PDP supra where the Supreme Court held that as long as the previous suit has not been disposed of, the subsequent suit between the same parties on the same issue is an abuse of
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process. The decision of the trial Court dismissing suit No. FHC/CS/64/2013 on the ground of abuse of Court process seem not to be borne out of the records and accordingly misplaced because the suit on which the alleged abuse was premised has been disposed of via a judgment delivered on 5/11/2013 before the objection was filed.
Hope seem not however lost given the third ground for the preliminary objection which is premised on the fact that the lower Court lacks the jurisdiction to entertain the suit because the subject matter was decided in a previous suit No. FHC/CS/209/2011 by the Federal High Court, Asaba on 5/11/2013. In order words that suit No. FHC/Cs/64/2013 is caught by estoppel per rem judicata.
Interestingly, the lower Court briefly considered and pronounced on this point in its ruling at pages 480 to 481 of the record of appeal wherein it was held as follows:
It is trite that a party will not be allowed to relitigate any of the issues already litigated upon as he will be estopped from doing so. Hence the Supreme Court in Ebba Vs. Ogodo (2000) 10 NWLR Pt. 675 P. 378 at 420 (Ejiwunmi JSC) held that where a party brings an action
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against another for a particular cause and judgment is given upon it, there is a strict rule that he cannot bring another action against the same party of the same cause. Furthermore, that once an issue has been raised and distinctly determined between parties then as a general rule, neither party can be allowed to fight that issue all over again. The same issue cannot be raised by either of them again in the same or subsequent proceedings except in special circumstances which circumstances has not been satisfactorily canvassed by this Plaintiff. Furthermore, in Daggash Vs. Bulama (2004) All FWLR Pt. 212 at P. 1723 the Court on issue estoppels held that when the question is whether the doctrine of issue estopped is applicable to a case or not, the important question to ask are whether the parties are the same, whether the issues are the same, whether the issues are material to the cause of action in the previous and in the later case and whether that issue has been resolved in the previous case. This principle is founded in other to prevent parties from relitigaing the same issue over and over again. Ikeni Vs. Efamo (2001) 87 LRCN p. 1690 at p. 1714 paragraph G.”
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The Appellant however raised the complaint in issue 2 that though the parties set out and argued on the effect of noncompliance with the provisions of Order 16 Rule 1, 2(1) and (2) of the Federal High Court (Civil Procedure) Rules 2009. The learned trial Judge did not however make any finding or pronouncement on the said issue.
A careful reading of the Ruling delivered by the learned trial Judge reveal that as stated by the Appellant no finding or pronouncement was made on the aforementioned order even though it was an issue in contention in the written address of the parties.
It has been emphasised in a number of authorities that there is need for every Court or Tribunal to make findings and pronounce on material or fundamental issues canvassed before it by the parties because failure to do so may result in a miscarriage of justice. Consequently, a Court has the duty to pronounce on all issues raised before it. See OKPALA & SONS LTD. VS. NIGERIA BREWERIES PLC (2017)LPELR 43826 (SC); KATTO VS. CBN (1991) 9 NWLR (PT. 240) 126; HONEYWELL FLOURMILLS PLC VS. ECOBANK (NIG) LTD (2018) LPELR 45127 (SC); 7UP BOTTLING COMPANY VS. ABIOLA
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SONS BOTTLING COMPANY LTD. (2001) 6 SC 73; ADESINA & ANOR VS. OJO & ORS. (2012) LPELR 13750 (CA); STATE VS. AJIE (2000) 11 NWLR (PT. 679) 434; AGBO VS. STATE (2006)1 SC (PT 4) 73; OYEFOLU & ORS. VS. DUROSINMI (2001) 16 NWLR (PT. 738) page 1.
However given the nature of the issue in contention, which borders on non compliance by the Respondent with Order 16 Rule 1, 2(1) and (2) of the Federal High Court Rules, this Court shall in the interest of justice and expeditious determination of this matter have recourse to the provisions of Section 15 of the Court of Appeal Act 2004 to do that which the trial Court ought to have done but did not do. The general powers vested in the Court of Appeal under the said section are designed to enable the Court clear whatever technical mistakes or impediments which may constitute a stumbling block to a fair determination of the appeal on the merits or of determining the real question in controversy. See DANGOMBE VS. LASSANJANG (2016) LPELR 40791 (CA); OBI VS. INEC (2007) 4 NWLR (PT. 1046) 465; AMAECHI VS. INEC (2008) 5 NWLR (PT. 1080) 227.
Now Order 16 Rule 1, 2(1) and (2) of the Federal High Court (Civil
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Procedure) Rules 2009 provides thus:
16:1. No demurrer shall be allowed.
16:2(1) A party shall be entitled to raise by pleadings any point of law, and any point so raised shall be disposed of by the Judge who tries the cause at or after the trial.
(2) A point of law so raised may, by consent of the parties or by order of the Court or a Judge in chambers on the application of either party, be set down for hearing and disposed of at any time before the trial.
The Appellants argument on the above set out rule of the Federal High Court is that, the word shall as used in Order 16 Rule 2(1) and (2) makes it mandatory for a party who wishes to invoke the power of the Court to comply with the requirements of the Rules of Court which are not meant to be treated with disdain but strictly complied with.
The response by the counsel for the Respondent is that where the jurisdiction of a Court is being questioned, there is no requirement of the law that it must be pleaded before it can be raised. Furthermore that abuse of Court process have been identified as an issue of jurisdiction.
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I had earlier in this judgment held that abuse of Court process does NOT arise in the instant case having regard to the fact that there was no previous pending action as at 8/12/2013 when the Respondent filed the notice of preliminary objection. The only matter pending as at that date was the instant suit No. FHC/CS/64/2013 in which case the complaint about multiplicity of action does not arise. However the third ground to sustain the said preliminary objection is that of issue estoppel based on the Respondents claim that the reliefs claimed in the instant case are the same in the previous case on which judgment was delivered on 8/11/2013.
In this regard, the issue in contention now is the effect of the Respondents failure to comply with Order 16 Rule 2(1) and (2) of the Federal High Court (Civil Procedure) Rules 2009 earlier set out in this judgment.
The straight and succinct answer to the issue is found in the case of LIVERPOOL AND LONDON STREAMSHIP PROTECTION AND INDEMNITY ASSOCIATION LTD VS. M/T TUMA & ORS. (2011) 15 NWLR (PT. 1271) 612, wherein this Court per Okoro JCA (as he then was) while considering Order 25 Rules 1, 2 and 3 of the Federal High Court
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(Civil Procedure) Rules 2000 which is similar to the 2004 Rules, held inter alia at page 626 of the report as follows:
By the above rule of the Federal High Court, Demurrer proceedings have been abolished. The rules now provide for proceedings in lieu of demurrer. What this means is that an applicant who desires to raise a point of law as a preliminary issue, is required to set out such issue in the statement of defence before such application in lieu demurrer can be raised. Failure to set out such an issue in the statement of defence will render the application in lieu of demurrer incompetent. See Mobil Oil Nigeria Plc Vs. IAL 36 Inc. (2000) 6 NWLR (Pt. 659) 146.
(Underlining is for emphasis)
Explaining further, His Lordship continued in paragraphs (E G) as follows:
Under demurrer proceedings, the party raising same contends that even if all the allegations in the statement of claim are true, it still does not in law disclose a cause of action for the party contending to answer. It follows that the party who demurred would not proceed to file statement of defence but having raised the point of law as to whether any
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case had been made out in the plaintiffs pleadings for him to answer, he awaits the decision of the Court on that point. See Bambe Vs Aderinola (1977) 1 SC 1. The simple difference between the now abolished demurrer proceedings and proceedings in lieu of demurrer is that in the former, the defendant need not file statement of defence but in the later, a statement of defence is a sine qua non for an applicant wishing to raise preliminary issues for trial. See OKOYE VS. N.C. & F CO. LTD. (1991) 6 NWLR (PT. 199) 501.
The above set out decision of this Court provides an excellent elucidation on the provisions of Order 16 Rule 1, 2(1) and (2) of the Federal High Court (Civil Procedure) Rules 2009 and as such needs no further explanation.
However, the third ground of the preliminary objection challenged the jurisdiction of the trial Court to entertain the suit because the subject matter had been decided upon by the Federal High Court, Asaba in suit No. FHC/CS/209/2011.
It has been held via numerous authorities that an objection to jurisdiction of the Court is a threshold issue. It goes to the root of adjudication, and touches on the
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competence of the Court to entertain the matter. Thus, where it is raised, it must be taken first before any further step is taken in the matter, because, where a Court lacks jurisdiction to entertain a matter, the whole proceedings becomes a nullity. See OJUKWU VS. OJUKWU (2008) 18 NWLR (PT. 1119) 439; OPARA & ANOR VS. AMADI & ANOR (2013) 12 NWLR (PT. 1369) 512; ISHOLA VS. AJIBOYE (1994) 6 NWLR (PT. 352) 506.
It follows therefore that in the instant case, the issue of the jurisdiction of the trial Court to entertain the suit can be raised at any time even when there are no pleadings filed and the party raising the objection need not follow Order 16 Rule 2(1) & (2) before doing so. See ELABANJO VS. DAWODU(supra). It must therefore be emphasised that an issue of jurisdiction need not be pleaded once there are materials before the Court and it could be raised either by party or the Court suo motu. Accordingly, it should not be confused with proceedings in lieu of demurrer. It can therefore be stated here that non compliance by the Respondent with the provisions of Order 16 Rule 2(1) and (2) is not fatal to the preliminary objection which
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contains a challenge to the jurisdiction of the trial Court to entertain the suit.
I will now deal with the contention whether the instant suit is caught by issue estoppel as to deprive the Court the jurisdiction to entertain same. I had earlier set out the reliefs sought by the Appellant in the previous suit No. FHC/CS/209/2011 in which judgment was delivered on 8/11/2013 as well as the reliefs sought in the present suit.
For the Respondents, the reliefs in both suits are the same, that is to say that the subject matters are the same as well as the parties and the judgment delivered on 8/11/2013 is a final one from a Court of competent jurisdiction.
For the Appellant however, the subject matter is not the same with particular reference to reliefs 1, 2 and 3 in the instant suit and for which the Appellant ought to be heard.
In the case of ADONE & ORS. VS. IKEBUDU & ORS (2001) 14 NWLR (PT.733) 385, the Supreme Court relying on its earlier decision in UKAEGBU & ORS. VS. UGOJI & ORS (1991) 6 NWLR (PT. 196) 127 clearly expounded on the distinction between cause of action estoppel and issue estoppel as follows:
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The distinction between cause of action estoppels and issue estoppels is long standing and has been pronounced upon in several cases coming before this Court. Both are regard as specie of doctrine of Res judicata. In Ukaegbu & Ors Vs. Ugoji & Ors. (1991) 6 NWLR (pt. 196) 127 at 168; Akpata JSC, stated the distinction between the two thus: the classification of estoppels under estoppel by judgment is related to the purpose for which the judgment is used. If it is intended to be used to prevent another suit founded on the same cause of action as the original suit, the decision in the original action is said to constitute res judicata. If, on the other hand, the subsequent proceedings are based on different cause of action as in the instant case, issue estoppels can operate only to prevent certain issues which were decided in the original action from arising for further consideration by the Court. See also Idigbe JSC in Fadiora & Anor. Vs. Gbadebo & Anor. (1978) 3 SC 219.
Also in the case of IGP & ANOR VS. UBAH & ORS. (2014) LPELR 23968 (CA) this Court per Iyizoba JCA held at page 50 that:
The law is that if a party
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brings an action against another for a particular cause and judgment is given on it, he cannot institute another suit against the same party for the same cause. However, within one cause of action, there may be several issues once an issue has been raised in a case and is determined between the parties, the same issue cannot be raised again by either of the parties in the same or subsequent proceedings. See Ladegha Vs. Durosinmi (1978) 3 SC 82; Bamishebi Vs. Faleye (1987) 2 NWLR (pt. 54) 51; Adigun Vs. Governor of Osun State (1995) 3 NWLR (pt. 385) 513.
See also IKENI VS. EFAMO (2001) 10 NWLR (PT. 720) 17 (SC).
With the above decisions in mind, I have scanned through the pleadings and claims of the Appellant in the two suits and what is discernible therefrom is that in the previous suit No. FHC/CS/209/2011 the main issues in contention which formed the basis of the judgment of the lower Court is whether the 2nd Respondent therein can delegate its powers to the 1st Respondent with respect to the issuance of patent and proprietory medicine license to members of the Appellant and secondly whether the trial Court can make an order to enforce the
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agreement made between the Appellant and the 2nd Respondent on 22/1/1997. Hence the nine reliefs sought by the Appellants as per their statement of claim.
In the instant case, the Appellant are challenging the acts of the 1st Respondent in compelling the members of the Appellant to relocate their patent medicine stores from the urban to rural areas. They also seek the order of Court to compel the 1st Respondent to return or refund all the monies collected from members of the Appellant for the production of signposts and issuance of licenses which were never produced or issued.
This is reflected in reliefs 1, 2 and 3 of paragraph 20 of the Appellants statement of claim.
Reliefs 4 and 5 as rightly conceded by the Appellant are related to issues already decided upon in the previous judgment delivered on 8/11/2013 and as such they are caught by issue estoppel. The Appellant are therefore estopped from commencing or continuing any proceedings in respect of the issues connected with reliefs 4 and 5 of paragraph 20 of the Appellants statement of claim at page 8 of the record of appeal given that the issues have been raised and decided
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between the parties in suit No. FHC/CS/209/2011 delivered on 8/11/2013. See OSHODI VS. EYIFUNMI (2000) 13 NWLR (PT. 684) 298; FADIORA VS. GBADEBO (1978) 3 SC 219, IGP & ORS. VS. UBAH & ORS supra. Reliefs 4 and 5 are hereby struck out.
Accordingly, having resolved issue No. 1 partly in favour of the Appellant, I hold that this appeal succeeds in part and it is hereby allowed in part.
The Ruling of the Federal High Court delivered on 12/1/2015 whereby Suit No. FHC/CS/64/2013 was struck out for being an abuse of process of Court is hereby set aside.
It is ordered that the suit be restored to the cause list and to be heard and determined expeditiously on the basis of the issues connected with reliefs 1, 2 and 3 only as claimed in the Appellants statement of claim.
I make no order as to cost.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading the draft of the Judgment just delivered by my learned brother SAMUEL CHUKWUDUMEBI OSEJI, JCA.
I am in full agreement with the reasoning and conclusion therein. I also resolve Issue No. 1 partly in favour of the Appellant.
I agree that the
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Ruling of the Federal High Court delivered on 12/1/15 where Suit No. FHC/CS/64/2013 was struck out for being an abuse of Court process should be set aside. The said Suit No. FHC/CS/64/2018 is to be relisted and heard unto finality on the basis of reliefs 1, 2, and 3 as claimed by the Appellant in his statement of claim.
I abide by the order as to cost in the lead judgment.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the privilege of reading before now the judgment just delivered by my learned brother Samuel Chukwudumebi Oseji, JCA.
My learned brother has advanced very elaborate reasons for the decision in the leading judgment. I adopt the reasons given by my learned brother and I hereby allow the appeal.
I abide by all the orders made in the leading judgment.
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Appearances:
Ehinon OkohFor Appellant(s)
Respondents not representedFor Respondent(s)
>
Appearances
Ehinon OkohFor Appellant
AND
Respondents not representedFor Respondent