OKORO & ANOR v. NNEBOCHA (2020)

OKORO & ANOR v. NNEBOCHA

(2020)LCN/15221(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Friday, March 13, 2020

CA/B/69/2015

Before Our Lordships:

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Between

1. JOSEPH OKORO 2. EMMANUEL OPARAOCHA APPELANT(S)

And

EMMANUEL OZOEMENA NNEBOCHA RESPONDENT(S)

RATIO

WHETHER OR NOT THE ISSUE OF ABUSE OF COURT PROCESS IS AN ISSUE CHALLENGING THE COMPETENCE OF A SUIT

The above is so because the issue of abuse of Court process, being an issue challenging the competence of a suit, is as well an issue of jurisdiction. It is important to note that the issue of abuse of Court process is not an equitable relief, like the issue of limitation of actions, which by law must be raised in the pleadings. It is rather an issue of law elevated to issue of competence and by implication jurisdiction, for which a Court of law has the inherent powers to ensure the sanctity of its process and to stop the abuse of its process by any of the parties. Thus, an abuse of Court process is not an issue exclusive to a Defendant and which can only be raised by the defense. It can also be raised by a Claimant against the processes filed by the defense. It is for the Court before whom it is raised to consider and resolve it timeously, so that only competent matters are taken to full hearing and determination on the merit by the Courts. See Bessoy Ltd V. Honey Legon (Nig.) Ltd &Anor (2010) All FWLR (Pt. 503) 1380, where it was stated inter alia thus: .
“The application was founded on three legs; want of reasonable cause of action, want of jurisdiction and abuse of Courts process. While want of reasonable cause of action and want of jurisdiction do not need affidavit evidence to establish, and can be determined only on the Plaintiff’s statement of claim, abuse of process cannot be so determined without affidavit evidence presenting facts that constitute the abuse”
See also Ngere V. Okuruket XIV (2017) All FWLR (Pt. 882)1302 @ p. 1342; Arubo V. Aiyeleru (1993) 1 NSCC 255 @ p. 265; Awojobi V. Ogbemudia (1983) 8 SC 92 @ p. 96; Okoreaffia V. Agwu (2008) All FWLR (Pt. 445) 1601 @ p. 1623. PER GEORGEWILL, J.C.A.

THE TERM “ABUSE OF COURT PROCESS”

WHETHER OR NOT THE COURT CAN MAKE PRONOUNCEMENTS ON ACADEMIC ISSUES

See Charles Oke & Anor V. Dr. Rahman Mimiko & Ors (2013) All FWLR (Pt. 693) 1853, where the full Court of the Supreme Court per Muhammad JSC, had this to say on this issue:
“It is a principle of law long settled that the general attitude of the Courts of law is that they are loathe in making pronouncements on academic/hypothetical issues as it does not serve any useful purpose”
See Oke V. Mimiko (No. 1) (2014) 1 NWLR (Pt. 1388) 225 @ pp. 254 – 255. See also Mbachu V. Anambra – Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (Pt. 342) 1482 @ p 1497. PER GEORGEWILL, J.C.A.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.(Delivering the Leading Judgment): This is an Appeal against the Ruling of the High Court of Delta State, Coram: E. I. Oritsejafor J., in Suit No. EHC/161/2013: Emmanuel Ozoemena V. Joseph Okoro & Anor delivered on 26/5/2014, wherein the Appellants’ application seeking the dismissal of the Respondent’s suit on the ground that it was an abuse of Court’s process was dismissed.

The Appellants were peeved with the said ruling and had appealed against it to this Court vide their Original Notice of Appeal filed on 9/6/2014 on One ground of appeal at pages 148 – 150 of the Record of Appeal. The Record of Appeal was transmitted to this Court on 16/4/2015 but was deemed properly filed on 25/2/2019. With the leave of this Court, the Amended Notice of Appeal was filed on 19/6/2019 on two grounds of appeal. The Appellants’ brief was filed on 5/4/2019. The Respondent’s brief was filed on 9/5/2019. The Appellants’ reply brief was filed on 17/6/2019.

At the hearing of this appeal on 30/1/2020, M. I. Okoro Esq., learned counsel for the Appellants adopted the Appellants’ brief and reply brief as their arguments and urged the Court to allow the appeal and set aside the ruling of the Court below and to dismiss the Respondent’s suit. On their part, K. O. Onyebuolise Esq., learned counsel for the Respondent adopted the Respondent’s brief as their arguments and urged the Court to dismiss the appeal and affirm the ruling of the Court below.

By a Writ of Summons filed on 11/7/2013, the Respondent as Claimant claimed against the Appellants as Defendants the following reliefs, namely:
a. Declaration that the Claimant is the person entitled to the Statutory Right of Occupancy over that piece or parcel of land measuring approximately 667.413 Square Metres in Survey Plan No. HAILlDT/1190/2005 drawn by O. T. Dabiri, a Registered Surveyor and bounded…
b. N5, 000, 000.00 (Five Million Naira), general damages for trespass committed by the Defendants on the Claimant’s Land.
c. Perpetual Injunction restraining the Defendants, their servants, agents or privies from trespassing or further trespassing on the Claimant’s Land. See pages 8 – 9 of the Record of Appeal.

Earlier on 5/7/2013 in Suit No. EHC/157/2013: Recozee Hotels Ltd V. Emmanuel Ozoemena Nnebocha, the Respondent herein was sued as Defendant, wherein the Claimant, Recozee Hotels Limited, claimed the following reliefs, namely:
a. A Declaration that the Claimant is the person, entitled to Statutory Right of Occupancy over all that piece or parcel of land measuring approximately 2,634.392 Square Meters lying, being and situate at Off Kilometre One Refinery Road, Effurun Uvwie Local Government Area of’ Delta State of Nigeria bounded ….
b. b) A Declaration that the Claimant is entitled to enjoy his aforesaid piece or parcel of land measuring approximately 2634.392 Square Metres together with its appurtenances including its access to Pinnacle Close and the garden abutting Pinnacle Close, Off Kilometre One (1) Refinery Road, Effurun, Delta State.
c. An Order of Perpetual Injunction restraining the Defendant, his agents, privies, servants, workmen, thugs and/or successors-in-title from further interfering, trespassing, entering into, building, further building and or developing on all that portion of the Claimant land and/or access to the Claimant’s land abutting unto Pinnacle Close measuring approximately 10ft by 150ft lying, being and situate at, Off Kilometre One Refinery Road, Effurun, Uvwie Local Government Area of Delta State of Nigeria.
d. An Order of this Hon Court directing the Defendant to pull down and or remove the fence and other structures erected by him on the Claimant’s land and/or its appurtenances without his consent and authority whatsoever.
e. The sum of N10, 000, 000. 00 being damages for trespass on the Claimant’s land aforesaid.

In the said earlier Suit No. EHC/157/2013, the Respondent herein as Defendant therein had filed his statement of defense/counter claim, claiming against the Recozee Hotels Limited, the Claimant as follows, namely:
a. A Declaration that the Defendant is the person entitled to the Statutory Right of Occupancy over that piece or parcel of land measuring approximately 667.413 Square Metres in Survey Plan No. HAILIDT/119012005 drawn by O. T. Dabiri, a Registered Surveyor and bounded…..
b. N20, 000, 000.00 general damages for trespass committed by the Claimant on the Defendant’s Land.
c. Perpetual Injunction restraining the Claimant, her servants, agents or privies and especially Chief Joseph Okoro from trespassing or further trespassing on the Defendant’s Land. See pages 104 – 116 of the Record of Appeal.

Upon service of the Respondent’s Suit No. EHC/161/2013, the Appellants as Defendants before the Court below filed on 4/9/2013 an application seeking to dismiss the Respondent’s Suit on the ground that it constitutes an abuse of Court’s process in that there is an earlier suit pending between the parties and/ or their privies over the same land in dispute. The parties filed and exchanged affidavit and counter affidavit together with written addresses. The written addresses were adopted by counsel and on 26/5/2014, the Court below delivered its ruling dismissing the Appellants’ application, hence this appeal. See pages 125 – 147 of the Record of Appeal.

BRIEF STATEMENT OF FACTS
As can be garnered from the pleadings and affidavit evidence of the parties as in the printed record, the relevant facts in this appeal in relation to the Appellants are that the 1st Appellant is one of the Directors of one Recozee Hotels Limited, the bona – fide owner of the land in dispute. The 2nd Appellant is the vendor who transferred title of the said land to Recozee Hotels Limited, which had, before the instant suit was filed by the Respondent on the same subject matter, instituted Suit No: EHC/157/2013: Recozee Hotels Ltd V. Emmanuel Nnebocha. However in gross abuse of the Court’s process, the Respondent filed the instant suit claiming the same reliefs, over the same subject matter and that both suits are predicated on the same subject matter, which is a land dispute and the Respondent seeks the same reliefs both in his Counter Claim and in the instant suit. See pages 8 – 9; 38 – 80; 115 – 116 of the Record of Appeal.

On the other hand, the facts relevant to this appeal in relation to the Respondent are that on 11/7/2013 the Respondent instituted Suit No. EHC/161/2013 against the Appellants claiming declaration of title to a parcel of land, perpetual injunction and damages. The Respondent is the owner in possession of the said land since 1995, which was part of the access road to his residence and was created by one Chief J.T. Kodesoh, the Respondent’s predecessor in title. The said land shares boundary on one side with 2nd Appellant, demarcated by a dwarf fence of the 2nd Appellant prior to 1991. However, the 2nd Appellant first trespassed on the said land by dropping caravan thereon sometimes in 2006 but was successfully repelled by the Respondent. The 1st Appellant informed the Respondent sometime in 2008 that he acquired the land in dispute from the 2nd Appellant and the Respondent told the 1st Appellant that he is the owner of the land and that he bought nothing from the 2nd Appellant. The 1st Appellant challenged the Respondent’s ownership and possession of the said land sometimes in 2008, when the Respondent was repairing the said boundary fence and in 2013 when the Respondent built a new concrete fence beside to the said boundary fence since the old fence was weak, which precipitated the filing of Suit No. EHC/161/2013, and that the subject matter, the parties and reliefs are distinct and different from those in Suit No. EHC/157/2013, contrary to the false claim by the Appellants that they are the same. See pages 1 – 33; 83 – 84 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellants’ brief, two issues were distilled as arising for determination from the two grounds of appeal, namely:
i. Whether the Court below was right when he held that the issue of abuse of Court process could only be raised in the Appellants’ statement of Defense and whether the later suit filed by the Respondent at the Court below constitutes an abuse of Court process? (Distilled from Ground one)
ii. Whether the Court below was right when he held that the suit of the Respondent discloses a reasonable cause of action. (Distilled from Ground Two)

In the Respondent’s brief, two issues were also distilled as arising for determination in this appeal, namely:
i. Whether the Respondent’s Suit No. EHC/161/2013 constitutes an abuse of Court process and if it does, whether objection on the ground that a suit constitutes an abuse of Court process is an issue of jurisdiction that can be taken without first raising same in a Statement of Defense as to warrant the reversal of the decision of the Court below?
ii. Whether the Respondent’s Suit does not disclose a reasonable cause of action against the Appellants, as to warrant the reversal of the decision of the Court below?
I have taken time to look at the relief claimed in the Appellants’ Motion on Notice filed on 4/9/2013 seeking a dismissal of the Respondent’s suit on the ground that it constitutes an abuse of Court process. I have also taken time to review the affidavit and counter affidavit evidence of the parties as well as the pleadings of the parties in both suits. I have also considered the submissions of counsel for the parties in their respective briefs in the light of the findings in the ruling of the Court below, and it does appear to me that the only real issue for determination in this appeal is Appellants’ issue one touching on the only relief contained in the Appellants’ application before the Court below. However, upon a due consideration and resolution of issue one, and if need be, I shall proceed to consider and resolve issue two, albeit briefly, and bring this judgment to a close.

ISSUE ONE
Whether the Court below was right when he held that the issue of abuse of Court process could only be raised in the Appellants’ statement of Defense and whether the later suit filed by the Respondent at the Court below constitutes an abuse of Court process?

APPELLANTS’ COUNSEL SUBMISSIONS
On issue one learned counsel for the Appellants had submitted that the Court below erred when it held that the objection on the ground that the suit constitutes an abuse of Court process can only be raised in the statement of defense and contended that in law the issue of abuse of Court process is such that goes to the jurisdiction of the Court and as such may be raised at any time even without filing a statement of defense and urged the Court to hold that the Appellants’ Motion on Notice filed on 4/9/2013 was in order and the Court below was in grave error when it declined to determine it on its merit and to allow the appeal, grant the Appellants’ application and dismiss the Respondent’s suit for being an abuse of Court process. Counsel relied on Ogoejofo V. Ogoejofo (2001) All FWLR (Pt. 63) 141, @ p. 151; Anyaduba V. NRTC Ltd (1990) 1 NWLR (Pt. 127) 397; Bank of Ireland V. UBN Ltd (1998) 10 NWLR (PT. 569) 53; Shitta Bey V. A.G., Federation (1998) 10 NWLR (PT. 570) 392 Erhunmunse V. Ehanire(1998) 10 NWLR (PT.568) 53; Oketade V. Adewunmi (2010) All FWLR (Pt. 526) 511 @ p.518; Okorodudu V. Okoromadu (1977) 3 SC 13; Ogun V Akinyelu (1999) 10 NWLR (Pt. 624)’671 @ pp. 692 – 693.

It was also submitted that in law where an abuse of Court process is discovered the Court, upon an application made by a party or on its own motion, has the power to dismiss the entire case or the affected part of it even before the filing and exchange of pleadings and contended that the refusal by the Court below to consider the issue of abuse of Court process submitted to it by the Appellant was wrongful in that it amounted to a breach of the right to fair hearing of the Appellants as well as the duty on the Court below to determine all applications pending before it and urged the Court to hold that the Court below was in error and to allow the appeal and grant the Appellants’ application and dismiss the Respondent’s suit for being an abuse of Court process. Counsel relied on Arubo V. Aiyeleru (1993) 1 NSCC 255 @ p. 265; Awojobi V. Ogbemudia (1983) 8 SC 92 @ p. 96; Okoreaffia V. Agwu (2008) All FWLR (Pt. 445) 1601 @ p. 1623; Dingyadi V. INEC (2010) All FWLR (Pt. 550) 1204 @ pp. 1233-1234; Emirate Airline V. FRN (2015) All FWLR (Pt. 773) 1865.

It was further submitted that the filing of the instant suit by the Respondent during the pendency of a subsisting suit over the same subject matter constitutes an abuse of Court process in that in law the improper use of judicial process by a party in litigation to interfere with the due of administration of Justice amounts to abuse of Court process and contended that the filing of the Respondent’s Suit amounted to the use of multiple processes in the purported exercise of the same right for which he already filed a counter claim in Suit No. EHC/157/2013: Recozee Hotels Limited V. Emmanuel Nnebocha premised on the same subject matter and same issues with the present Suit and urged the Court to hold that the Respondent’s suit was an abuse of Court process and ought to be dismissed and to allow the appeal, set aside the perverse ruling of the Court below and to dismiss the Respondent’s suit for being an abuse of Court process. Counsel relied onIkine V. Edjerode (2002) FWLR (Pt. 92) 1775 @ p. 1819; Tomtec Nigeria Limited V. FHA (2010) All FWLR (Pt. 509) 400 @ pp. 415 – 416; Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156; Akpan V.Julius Berger (Nig.) Plc.

(2002) 17 NWLR (Pt. 795) 1; Okonkwo V. Cooperative &Commerce Bank (Nig.) Plc. (2003) FWLR (Pt. 154) 457 @ p. 508.

RESPONDENT’S COUNSEL SUBMISSIONS
On his issue one, learned counsel for the Respondent had submitted that Suit No. EHC/161/2013 does not constitute an abuse of Court process and contended that at any rate the issue of abuse of Court process is not an issue of ex facie want of substantive jurisdiction that can be raised vide a Motion on Notice without firstly filing a Statement of Defense and raising same therein and urged the Court to hold that the issue of abuse of Court process is a point of law, at best an issue of procedural jurisdiction as opposed to substantial jurisdiction, which must first be raised in a Statement of Defense as rightly held by the Court below and to dismiss the appeal and affirm the Ruling of the Court below. Counsel relied on CBN V. Ahmed (2001) FWLR (Pt. 56) 670 @ p. 672; ARC V. JDP Construction (Nig.) Ltd. (2003) FWLR (Pt. 153) 251 @ p. 254.

It was also submitted that the facts and circumstances as disclosed in all the processes filed in both suits before the Court below, the subject matter are not the same, neither are the parties, reliefs or issues in both suits the same and contended that the complaint of abuse of Court process by the Appellant was lacking in merit as the Respondent’s Suit No. EHC116112013 does not constitute an abuse of Court process in relation to Suit No. EHC/157/2013 since in law it is not enough to merely allege multiplicity of action but mala fide must also be shown and the urged the Court to hold that the Court below has the constitutional unlimited substantive and territorial jurisdiction to hear and determine the Respondent’s suit which is competent in that the Appellants’ application before the Court below seeking to dismiss the Respondent’s suit lacked merit and to dismiss the appeal for lacking in merit. Counsel referred to Sections 6(6)(b) and 272 (1) of the 1999 Constitution (as amended), Section 39 (1)(a) of the Land Use Act and relied on Christian Outreach Ministries Inc. &2 Ors V. Cobham & Anor (2006) 15 NWLR (Pt. I002) 283; Opekun V. Sadiq (2013) FWLR (Pt. 150) 1654 @ pp. 1656 -1657; SPDC Ltd V. Isaiah (2001) FWLR (Pt. 56) 608 @ p. 617; Asupaka V. Onukaba (2001) FWLR (Pt. 77) 957 @ p. 959;Ndaeyo v Ogunaya (1977)1 SC 11; Kim V. Emefo (2001) FWLR (Pt. 66) 792 @ p. 796; Zangina V. Commissioner for Works and Housing, Borno State (2001) FWLR (Pt.79) 1368 @ p. 1371; Amodu V. Ajiboye (2001) FWLR (Pt.46) 845 @ p. 848; Egbue V. ARAKA (1988) 3 NWLR (PT. 84) 1595 @ p. 600; Petkev Nigeria Limited V. Ogbogu (2016) All FWLR (Pt. 837) 604 @ p. 605; NIPOST V. Mordi (2008) All FWLR (Pt.424) 1544 @ p. 1546; Mobil producing Nig. Unltd. V. LASEPA (2003) FWLR (Pt. 137) 1029 @ p. 1052.

It was further submitted that the Appellants’ application amounted in law to demurrer, which has been abolished in that the Appellants ought to have raised it as a point of law in their defense and then move the Court to hear and determine it in limine and contended that the Appellant having resorted to demurrer which has been outlawed, the Court below was right when it held that the Appellants’ objection that the Respondent’s suit constituted an abuse of Court process can only be raised in a statement of defense before it could be raised in application to dismiss the Respondent’s suit and to dismiss the appeal for lacking in merit. Counsel referred to Order 22 Rule 2 of the Delta State High Court (Civil Procedure) Rules 2009, and relied on Idachaba V. Ilona (Supra); Petkev Nig Ltd V. Ogbogu (Supra) @ p. 607; Mobil Oil Plc. V. IAL 36 Inc. (2000) FWLR (Pt. I0) 1632.

APPELLANTS’ COUNSEL REPLY SUBMISSIONS
In what the learned counsel for the Appellants termed and filed as reply brief, he not only reiterated virtually all the argument in the main brief but also proceeded to re argue the entire appeal, quite contrary to the limited scope and function of a reply brief as set out in Order 19 Rule 5 of the Court of Appeal Rules 2016. However, I shall in the interest of justice recap some of these submissions that are response to issues raised in the Respondent’s brief, having taken time to consider the entire reply submissions.

It was submitted that the issue of abuse of Court process being an issue of jurisdiction is one which can be raised via a Motion on Notice supported by an Affidavit setting out the facts which demonstrates the abuse in the suit being
challenged and contended that the Respondent’s suit constitutes a clear abuse of the Court process and urged the Court to so hold and to allow the appeal and dismiss the Respondent’s Suit No. EHC/161/2013 for being incompetent having been filed in abuse of the Court process on the face of the already pending Suit No.EHC/157/2013.

Counsel relied on Bessoy Ltd V. Honey Legon (Nig.) Ltd &Anor (2010) All FWLR (Pt. 503) .1380 @ p. 1380; Ngere V. Okuruket XIV (2017) All FWLR (Pt. 882) 1302 @ p. 1342; Nigerian Intercontinental Merchant Bank Ltd. V. Union Bank of Nigeria Ltd. & Ors. (2004) All FWLR (Pt. 209) 1126 @ p. 1145.

RESOLUTION OF ISSUE ONE
My lords, the crucial question begging for answer in the consideration of issue one in this appeal is simply this: whether on the state of the facts and processes before the Court below, the Respondent’s Suit No. EHC/161/2013 constituted an abuse of Court process on the face of the pendency of Suit No. EHC/157/2013 and therefore, ought to have been dismissed by the Court below?

Now, while on the one hand the Appellants had contended vehemently that the Respondent’s suit constitutes an abuse of court process and the Court below was thus wrong not to have dismissed it, on the other hand, the Respondent had contended vehemently too to the contrary that his suit did not constitute an abuse of Court process as was rightly found by the Court below and was thus competent to be heard and determined on the merit by the Court below.

By a Motion on Notice filed on 4/9/2013, the Appellants as Defendants, prayed for an Order dismissing and/or striking out this Suit in its entirety in that it constitutes a contemptuous abuse of the process of the Court. The Motion was supported by an Affidavit of 7 paragraphs, annexed to which are several documents as Exhibits. In opposition, the Respondent filed his counter affidavit. In response, the Appellants filed a further affidavit. The parties then proceeded to file and exchange written address of their respective counsel, which were duly adopted. See pages 34 – 79, 85 – 97, 102- 123 of the Record of Appeal.

On 26/5/2014, the Court below delivered its ruling, in which it held that that the Appellants’ prayer for dismissal of the Respondent’s suit on the ground of abuse of Court process without first filing and pleading the issue of abuse of Court process in their Statement of defense was fatal to their prayers, while proceeding to consider ground two on the motion paper relating to the issue of failure of the Respondent’s suit to disclose any reasonable cause of action and dismissing the Appellants’ application for lacking in merit. In its said ruling, the Court below had reasoned and held inter alia thus:
“…In effect, while I agree with learned counsel that the point of law contending that no reasonable cause of action has been disclosed can be properly taken before a statement of defense is filed the objection on the ground that the suit constitutes an abuse of court’s process can only be raised in the statement of defense. Accordingly, this court will only consider the submissions of learned counsel on the alleged nondisclosure of a reasonable cause of action….The wrongful act of the defendants complained of are the alleged acts of trespass and the wrongful interference by defendants with claimant’s ownership of land in dispute while the consequent damage suffered by claimant is the imminent loss of ownership of the land in dispute. Accordingly, it cannot be seriously contended as the defense counsel has done that the statement of claim of the claimant discloses no reasonable cause of action. For the reasons stated above, the application fails and is accordingly hereby dismissed.” See pages 125 – 237 of the Record of Appeal.

My lords, it is in the light of the above facts and circumstances of this appeal and the findings above in the ruling of the Court below that I shall consider the question whether the Respondent’s Suit No. EHC/161/2013 constituted an abuse of Court process as vehemently contended by the Appellants or did not constitute an abuse of Court process as equally vehemently contended by the Respondent?

But first, was the Court below right when it held that a complaint of abuse of Court process must first be raised in the pleadings before it can be raised by way of an application by the party so alleging? Regrettably, on the above basis alone the Court below merely brushed aside and thereby declined to consider and determine the issue arising from the complaint of abuse of Court process, which was the sole relief contained in the Appellants’ Motion on Notice filed on 4/9/2013 and proceeded rather to consider and determine the issue of failure to disclose reasonable cause of action, which though not part of the relief claimed by the Appellants was the second ground for their application.
A complaint capable of terminating a suit in-limine on ground of incompetence is, to my mind, clearly one touching on jurisdiction of the Court below and which in law can be raised by a Defendant at any stage of the proceedings and in any manner and either before or after filing the statement of defense. It is not an issue of demurrer at all that has been outlawed under the High Court Rules of Delta State. In most cases, the issue or fact constituting an abuse of Court process is extrinsic to the issues of fact in contention between the parties in the substantive suit on which the parties are to join issues in their pleadings. It is thus one which can be raised by way of an application challenging the suit on the ground that it is an abuse of Court process before even the filing of the statement of defense.
The above is so because the issue of abuse of Court process, being an issue challenging the competence of a suit, is as well an issue of jurisdiction. It is important to note that the issue of abuse of Court process is not an equitable relief, like the issue of limitation of actions, which by law must be raised in the pleadings. It is rather an issue of law elevated to issue of competence and by implication jurisdiction, for which a Court of law has the inherent powers to ensure the sanctity of its process and to stop the abuse of its process by any of the parties. Thus, an abuse of Court process is not an issue exclusive to a Defendant and which can only be raised by the defense. It can also be raised by a Claimant against the processes filed by the defense. It is for the Court before whom it is raised to consider and resolve it timeously, so that only competent matters are taken to full hearing and determination on the merit by the Courts. See Bessoy Ltd V. Honey Legon (Nig.) Ltd &Anor (2010) All FWLR (Pt. 503) 1380, where it was stated inter alia thus: .
“The application was founded on three legs; want of reasonable cause of action, want of jurisdiction and abuse of Courts process. While want of reasonable cause of action and want of jurisdiction do not need affidavit evidence to establish, and can be determined only on the Plaintiff’s statement of claim, abuse of process cannot be so determined without affidavit evidence presenting facts that constitute the abuse”
See also Ngere V. Okuruket XIV (2017) All FWLR (Pt. 882)1302 @ p. 1342; Arubo V. Aiyeleru (1993) 1 NSCC 255 @ p. 265; Awojobi V. Ogbemudia (1983) 8 SC 92 @ p. 96; Okoreaffia V. Agwu (2008) All FWLR (Pt. 445) 1601 @ p. 1623.
It seems clear to me that the Court below was gravely in error both in the manner of approach to the issue of abuse of Court process as to how and when it could be raised and also for the failure to determine such a key issue placed before it by the Appellants, on which both parties had joined issues on their affidavit evidence and in the written submissions of their counsel. I have no difficulty, therefore, holding that the Court below erred when it, against all the known principles of law guiding consideration of issues duly submitted by parties, declined to consider and determine the crucial issue of abuse of Court process placed before it by the Appellants but rather unfortunately and highly regrettably merely brushed same aside on a very tenuous and erroneous ground. The Court below, no matter how strongly it must have felt about the position of the law it towed, ought to have exercised some form of caution, by way of ex – abudandiicautela, – for the avoidance of doubts – and proceeded even if briefly to consider and determine the crucial issue of abuse of Court process as duly placed before it by the Appellants.
The above has been the constant admonitions of the apex Court to all Courts below it in the hierarchy of Courts to avoid brushing aside crucial issues and leaving the parties without justice! I hold therefore, that the Appellants’ Motion on Notice filed on 4/9/2013 was in order and ought to have been determined on the merit by the Court blow. Thus, the Court below was in grave error when it declined to determine it on its merit. See Dingyadi V. INEC (2010) All FWLR (Pt. 550) 1204 @ pp. 1233-1234; Emirate Airline V. FRN (2015) All FWLR (Pt. 773) 1865; Arubo V. Aiyeleru (1993) 1 NSCC 255 @ p. 265; Awojobi V. Ogbemudia (1983) 8 SC 92 @ p. 96; Okoreaffia V. Agwu (2008) All FWLR (Pt. 445) 1601 @ p. 1623.

My lords, having firmly resolved that the issue of abuse of Court process was properly before the Court below but regrettably left unresolved by that Court, let me now proceed to consider it in the light of the facts as amply contained in the record of appeal and as allowed us by law so to do under and by virtue of Section 16 of the Court of Appeal Act 2004.

Now, the term ‘abuse of Court process’ is often seen to be synonymous with multiplicity of suits, but though that in a way is a correct proposition of the law, yet abuse of Court process is not only about multiplicity of suits. In other words multiplicity of suits is not the only way by which abuse of Court process could be constituted. Simply put, and for lack of a precise or concise definition of the term, ‘abuse of Court process’ denotes the improper use of the process of Court to achieve unlawful ends or the employment of the judicial process to the annoyance or irritation or injury of the person of another and thus it can safely pass as a doctrine of law without any precise or concise definition. This is rightly and arguably so because what would constitute or amount to abuse of Court process is very diverse, imprecise and thus subject to infinite or indefinite considerations.
In considering whether or not an action constitutes an abuse of Court process, the Court is to critically consider the peculiar facts and circumstances of each case in which the issue of abuse of Court process is raised to determine whether in the peculiar circumstances of the affected case, the act of the party complained of constitutes an abuse of Court process. Happily, over the years authorities have become legion, as are replete in the law reports, providing some form of guide in carrying out the consideration of whether or not an abuse of Court process has been occasioned by the process of a party. See Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156. See also Daniel V. FRN (2014) 8 NWLR (Pt. 1410) 570; Harriman V. Harriman (1989) 5 NWLR (Pt. 1199) 6; Ukachukwu V. PDP (2014) 4 NWLR (Pt. 1396) 65; CPC V. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; Chime V. Onyia (2009) 2 NWLR (Pt. 1124) 1; Abubakar V. Bebeji Oil and Allied Products Ltd. (2007) 18 NWLR (Pt. 1066) 319; Adesokan V. Adegorolu (1991) 3 NWLR (Pt. 179) 293; Umeh V.Iwu (2008) 8 NWLR (Pt. 1089) 225.
The corollary to the above fluid state of uncertainty and imprecise definition of the term ‘abuse of Court process’ is ironically the settled certainty that the factual situations or categories of facts or circumstances that may constitute or amount or give rise to abuse of Court process are never closed and therefore, have no exhaustive list thereof and thus would largely depend on the peculiar facts and circumstances of each case. See Ette V. Edoho (2009) 3 NWLR (Pt. 1144) 601 @ p. 609. See also PDP V. Obi (2009) 3 NWLR (Pt. 1128) 327 @ pp. 339 – 340; Umeh V. Iwu (2008) 8 NWLR (Pt. 1089) 225; Benkay Nig. Ltd. V. Cadbury Nig Plc. (2006) 6 NWLR (Pt. 976) 338.

Let me now set out the salient facts and circumstances as put forward by the parties before the Court below as in the printed record. In the statement of claim in EHC/161/2013, the Respondent as Claimant has averred inter alia as follows:
1. The Claimant owns and resides at No. 1 Pinnacle Close, Off Adidi Street, Off Kilometre 1, Refinery Road, Effurun, which is adjacent, contiguous and connected with the Land in dispute in this case.
2. The 1st Defendant is the Managing Director of Recozee Hotels Ltd., Off Adidi Street, Off Kilometre 1, Refinery Road, Effurun, though far from and unconnected with the land in dispute, but within the Layout of late Chief J. T. Kodesoh, wherein also lies the land in dispute in this case.
3. The 2nd Defendant was the owner of a piece of land bounded while standing inside the said land, backing Adidi Street, on the North by the Land by Afrogus Ltd; on the South by Adidi Street, on the West by Refinery Road and on the East 1 the Claimant’s land- the land in dispute herein, which said land the 1st Defendant acquired from the 2nd Defendant sometime in 2008. The Claimant avers that the 2nd Defendant acquired the said parcel of land from Patrick Urumojiri Emore sometimes in May, 1977 vide a Deed of sublease. The Claimant further avers that the said land was part of a larger parcel of land measuring approximately 1.156 Hectares, that Patrick Urumojiri Emore acquired from the Orieje and Ogbe Families of Effunm, vide a Deed of Lease (headlease )for 99 years dated 7-02-1977.
4. The Land in dispute is part only of the parcel of land measuring approximately 667.413 square meters, situate, lying and being along Adidi Street, Off Kilometer 1, Refinery Road, Effurun, within the Jurisdiction of this Honourable Court, verged Pink/Red in Survey Plan No. HAILIDT/1190/2005 drawn by O. T. Dabiri, a Registered Surveyor, dated 25-05-2005, bounded on the North, while standing inside the land, backing Adidi Street, by part of the Residence of the Claimant, known as No. 1 Pinnacle Close, Off Adidi Street, Off Kilometre 1, Refinery Road, Effurun, not in dispute herein; on the South by Adidi Street; on the East, by the Access Road to the Claimant’s Residence, christened Pinnacle Defendants and Afrogus Ltd. The Claimant further avers that the planting of the trees and flowers, harvesting of the economic trees, putting of a barbed wire fence on the Eastern side of the land in dispute while standing on Adidi Street, excavation of the land in dispute and maintenance of the garden all the way from 1995 till date by the Claimant, without let or hindrance from anybody, constitute acts of ownership and exclusive possession of the land in dispute. The Claimant adds that the Defendant; were never and are not in possession of the land in dispute up till date. See pages 1 -9 of the Record of Appeal.

However, earlier in Suit No. EHC/157/2013, the Respondent had been sued as Defendant by Recozee Hotels Ltd, wherein in the statement of claim it was averred inter alia as follows:
1. The Claimant is a Registered Company duly incorporated under the laws of the Federal Republic of Nigeria with its Head Office situate at No.2 Okoro Close, Off Obimma Street, Off Refinery Road, Effurun, Della State of Nigeria.
2. The Defendant is a Nigerian and a retired staff of Shell Petroleum Development Company (SPDC) West Limited and resides at Pinnacle Close, Off Refinery Road Effurun, Delta State.
3. The Claimant avers that the land measuring approximately 2,634.302 square meters lying, being and situate at Off Kilometre One (1) Refinery Road, Effurun in Uvwie Local Government Area of Delta State, Nigeria, bounded to the North by Refinery Road, to the West by Esiekpe Street (also referred to as Adidi Street and/or Casa De Pedro Hotels Annex Road), to the South by Pinnacle Close and to the East by a developed property owned/occupied by Afrogus Limited and delineated on Survey Plan No: HAILIDT/6232/2007 with Survey Pillars/Beacons No: PQ 4710, SC/DT/ A3454H, SCIDT/A 3455H, and PQ 4711 prepared by Registered Surveyor O. T. Dabiri on 29/3/2007 and covered by the Claimant’s Deed of Assignment made in 2007 originally formed a portion of a very large expanse of land owned by the ORIEJE and OGBE families of Effurun, in Uvwie Local Government Area of Delta State whose ancestors founded the land and who has held the land since time immemorial.
4. The Claimant avers further that by virtue of a Deed of Lease dated 7/2/1977 and Registered as No. 36 at page 36 in volume 426 at the Lands Registry, Benin City (Now at Lands Registry Asaba) the said Orieje and Ogbe families granted a leasehold interest over an area of 1.156 hectares within the said large expanse of the ORIEJE and OGBE Family Land to one Patrick Urumojiri Emore for a term of 99 (Ninety-Nine) years. The Claimant shall find and rely on a copy of the said Deed of Lease.
5. The Claimant avers that by virtue of a Deed of sub-lease dated 2002 made between the said Patrick Urumojiri Emore as sub-lessor of the One part and One Mr. Emmanuel Oparaocha as sub-lessee of the other part, Patrick Urumojiri Emore granted a sub-lease in respect of an area measuring approximately 2,634.352 square meters out of his larger landholding lying, being and situate at Off Kilometre One (1) Refinery Road, Effurun.

In the affidavit in support it was clearly deposed that the 1st Appellant, the 1st Defendant/Applicant is the alter ego of Recozee Hotels Limited, who is the Claimant in Suit No. EHC/157/2013: Rcozee Hotels Limited V. Emmanuel Nnebocha filed on 5/7/2013 before the Court below and duly served on the Respondent. There is no contrary deposition from the Respondent save the bare denial in the counter affidavit showing how it is not true that the 1st Appellant is the alter ego of the Recozee Nig. Ltd., the Claimant in Suit No. EHC/157/2013. It is the law that fact not effectively denied and or traversed is deemed to have been admitted and thus requires no further proof, notwithstanding that the law is and has always been that it is he who alleges that must prove what he alleges. See MTN Nigeria Communications Limited V. Mundra Ventures (Nig) Ltd. (2016) LPELR – 40343 (CA), were I had reiterated inter alia thus:
“The law is that any fact admitted by one party need not be proved by the other party, thus facts of which the parties do not dispute are taken as duly established and therefore, no onus lies on either party to further prove such facts on which the parties are agreed. See Smurfit Ltd V. M.V. Gongola Hope (2002) 22 WRN 30.”
See also Alagbe V. Abimbola (1978) 2 SC 39. See also Egbuna V. Egbuna (1989) 2 NWLR (Pt. 106) 773; Yahaya V. FRN (2007) 23 WRN 127.

I have calmly but critically looked at the entirety of the processes filed before the Court below by the parties, including the reliefs sought by the Respondent in Suit No. EHC/161/2013, the reliefs sought by the Claimant in Suit No. EHC/157/2013, the reliefs claimed by the Respondent as the Counter Claimant in Suit No. EHC/157/2013, the subject matter in both Suit Nos. EHC/157/2013 and EHC/161/2013, as well as the issues as joined in the pleadings in Suit No. EHC/157/2013, as copiously set out earlier in this judgment. I have also looked at and considered the facts and circumstances as disclosed in the Appellants’ Motion on Notice filed on 4/9/2013 and the Respondent’s counter affidavit, as well as all the documents annexed thereto. I have also calmly scrutinized the entirety of the pleadings of the Respondent on the subject matter, issues and parties in this appeal and the parties in the Suit No. EHC/157/2013 between Recozee Hotels Limited and the Respondent, which is still pending before the Court below.

I have also averted my mind sufficiently to the essential ingredients or elements that would constitute an abuse of Court process, namely: A. there must be, at least, two matters filed in two different Courts; B. the said different suits are instituted with the goal of pursuing the same rights, even though on different grounds; C. the subject matter and or the questions for determination in the two suits must be substantially the same; D. frivolous and scandalous use of a lawful Court process to the irritation and embarrassment of another party. See Ogoejeofo V. Ogoejeofo (2006) 3NWLR (Pt. 966) 205.
Now, in law an allegation of abuse of Court process is a very serious allegation, which must be established by the person so alleging with sufficient materials placed before the Court before which the allegation is made. The sufficient materials need not be in an affidavit if on the face of the processes filed it is obvious that the party by his own showing is guilty of abusing the process of the Court. However, where such facts are not apparent on the face of the processes filed, then it is incumbent on the party so alleging to place before the Court, mostly by way of affidavit evidence, the materials sufficient enough to warrant the finding of an abuse of Court process in his favor against the other party, failing which such an allegation is taken as unproved and such an application must fail. Thus, for a latter suit to constitute an abuse of Court process, though the circumstances are varied and infinite, it must be shown in what way or manner it constituted an abuse of Court process by the party so alleging. It is not such an allegation that a party would make and then fold his hands ‘akimbo’ to see how the other party wriggles out of it. The law is simple and very trite he who alleges must prove what he alleges.

On the facts and circumstances in this appeal, I have no scintilla of doubts whatsoever that the subject matter in both Suits are the same, and the reliefs are substantially also the same. I also have no doubt that the issues thrown up by these two Suits EHC/157/2013 and EHC/161/2013 are basically and substantially the same over the same subject matter, the land in dispute as similarly described and well known to both parties as reflected in their respective pleadings. However, the only issue of note in contention between the parties, as it appears to me, is whether or not the parties in both Suits EHC/157/2013 and EHC/161/2013 are the same?

On the one hand, to the Appellants, the parties are the same in that the 1st Appellant is the ‘alter ego’ of the Claimant in Suit No. EHC/157/2013, in which the Respondent is the Defendant and in Suit No. EHC/161/2013, in which the Respondent is the Claimant and the 1st Appellant, the ‘alter ego’ of the Claimant in Suit No. EHC/157/2013, is the 1st Defendant and thereby constituting and rendering Suit No. EHC/161/2013 an abuse of the Court process in relation to the earlier pending Suit No. EHC/157/2013. On the other hand, the Respondent will hear none of this and to him the parties as their names go are clearly distinct and different in both Suit No. EHC/157/2013 and Suit No. EHC/161/2013, which facts clearly show that the subject matters, issues and parties as well as the reliefs in both Suits are not the same and therefore, Suit No. EHC/161/2013 cannot and did not constitute an abuse of Court process in relation to the other Suit No. EHC/157/2013. I dare say the above arguments are no doubt very interesting arguments!

However, having taken time to scrutinize all the processes before the Court below, I have asked myself this simple but all important question, namely: in law who are parties to a Suit? Are they only the persons named on the record? I think not! Looking at the established and unchallenged legal relationship between the 1st Appellant, who is the 1st Defendant in Suit No. EHC/161/2013 filed by the Respondent as Claimant, and the Claimant in Suit No. EHC/157/2013, in which the Respondent is the Defendant/Counter Claimant, it is my view, and I so hold firmly, that the 1st Defendant in Suit No. EHC/161/2013, that is the 1st Appellant herein, and the Claimant in Suit No. EHC/157/2013 are privies in law and therefore, with or without one being joined over the same subject matter common to both of them, that is the land in dispute in both suits, they being privies in law would be bound by whatever is the result of Suit No. EHC/157/2013 as well as Suit No. EHC/161/2013. This is so because, in law a judgment of the Court binds not only the parties named on the record but also all those who come within the legal ambit of privies to the parties on the record, either as Privies in blood, Privies in law or Privies in Estate. See Vol. 15 Halsbury Laws of England, 3rd Edition @ P. 196 Article 372. See also Coker V. Sanyaolu (1976) 10 NSCC 566 @ p. 573; Adone V. Ikebudu (2001) 7 SCNJ 513 @ p. 534; Abubakar V. B. O. & A. P Ltd. (2007) 18 NWLR (Pt. 1060) 319; Agbogunleri V. Depo (2008) 3 NWLR (Pt. 1074) 217; Daniel V. Kadiri & Anor. (2010) LPELR – 4017(CA).

I find therefore, as fact that in both Suit No. EHC/157/2013 and Suit No. EHC/161/2013, the parties and their privies, the subject matter and the issues as well the reliefs are substantially the same as rightly contended by the Appellants and clearly borne out by all the processes filed before the Court below in the Appellants’ Motion on Notice filed on 4/9/2013.

My lord, in the light of the above position of the law and the findings of facts have already made on the processes of the parties filed before the Court below as in the Record of Appeal, what better words can be used to describe the attitude of the Respondent, who had already joined issues with the Claimant in Suit No. EHC/157/2013 over the same subject matter and counter claiming title to the same land in dispute to now proceed, as if the Court processes in the earlier Suit No. EHC/157/2013 in which he is a Defendant/Counter Claimant were just mere trash to him and to ignore same including his own counter claim pending before the Court below, and without any legal justification, as none had been shown in this appeal, to institute Suit No. EHC/161/2013 over the same subject matter against the ‘alter ego’ of the Claimant in Suit No. EHC/157/2013 and for a diversionary effect adding the 2nd Appellant, the vendor, as if that would automatically change the parties in the latter Suit No. EHC/161/2013, perhaps to prepare for a day like this when the Appellants would challenge the competence of his latter Suit No. EHC/161/2013 for being an abuse of Court process, to inaugurate an ingenious argument that the parties in both Suit No. EHC/157/2013 and Suit No. EHC/161/2013 are not the same.

In my finding therefore, the Respondent was simply at best merely forum shopping to institute the latter Suit No. EHC/161/2013 over the same subject matter and issues and between the same parties and their privies than await the determination of even his own counter claim in Suit No. EHC/157/2013 already pending before the Court below and in which the parties have already joined issues, so that both parties may advance in that already pending Suit No. EHC/157/2013 whatever arguments and present whatever facts or materials they may desire to place before the Court below so that all the issues involved may be determined once and for all in one fell swoop in that Suit No. EHC/157/2013 than abusing the Court processes by filing a fresh Suit No. EHC/161/2013.

In law, a suit premised on such faulty foundation, initiated in bad faith and merely intended to, and had indeed achieved, the wasting of the time and resources of the Appellants in attending to such multiplicity of actions over the same subject matter and seeking to terminate it in-lime all the way from the Court below to this Court with its attendant litigation expenses is one which is nothing but a process in serious want of bona – fide and thus constitutes an abuse of the process of Court, as rightly contended by the Appellants but wrongly ignored by the Court below on the very flimsy and untenable ground that it ought to first be pleaded in the Appellants’ pleadings before they could raised it for the Court below to consider and determine it.
I therefore, un – hesitantly hold that the Respondent’s latter Suit No. EHC/161/2013, on the face of his counter claim in Suit No. EHC/157/2013 earlier filed and pending, was to all intents and purpose not meant to serve any useful purpose than merely to harass and annoy the Appellants even before the parties are duly heard and determined in the already pending Suit No. EHC/157/2013. It was filed in gross abuse of the process of Court and was thus liable to be dismissed in limine without much ado! An opportunity which the Court below clearly failed to seize and thereby failed to rise up to the occasion when the demand of justice came knocking at its door! The Respondent’s Suit No. EHC/161/2013 being therefore, an abuse of the process of Court, on the face of the already pending Suit No. EHC/157/2013 before a Court of competent jurisdiction, was dead on arrival. See Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156 @ p. 188.
In the eyes of the law, therefore, a process initiated in abuse of the process of Court is devoid of any competence or life and thus ought to be terminated by the Court, even in-limine if so called upon by the party being put through the unenviable task of defending a process steeped in the abuse of the process of Court. Having held firmly that the Respondent’s Suit No. EHC/161/2013 was over the same subject matter, issues and parties and their privies, and thereby constitutes an abuse of Court process and therefore, was at best a good for nothing attempt at irritating and annoying the Appellants, without any justification, in law the proper order to be made is simply an order of dismissal to bring it to a definite end. There is indeed no room for any sentiment when it comes to dealing with matters or actions initiated or steps taken in abuse of the process of Court. See African Reinsurance Corp. V. JDP Construction (Nig) Ltd (2003) 13 NWLR (PT 838) 609, where the Supreme Court laid this issue to rest on the proper order to be made when a suit or process constitutes an abuse of Court process, when it held alia thus:
“Where the Court comes to the conclusion that its process is abused, the proper Order is that of dismissal of the process”
This Court, where we are privileged and honored to sit as Priests in the temple of justice to administer justice only, had also lent its voice to the devastating consequences on a suit found to be an abuse of the Court processes in Dogari V. Waziri & Anor. (2016) LPELR – 40320 (CA) @ pp. 30 – 31, where it was reiterated inter alia thus:
“No matter how meritorious the case of a party may be once it is found to be an abuse of the Court processes that is the end of the matter. It becomes a closed chapter and the end of the road for such a matter instituted in abuse of the process of Court.”
See also Dingyadi & Anor V. INEC &Ors. (2011) LPELR – 950 (SC) @ pp. 38 – 39; Ogbonmwan V. Aghimien (2016) LPELR – 40806 (CA) @ p. 22.

In the circumstance therefore, issue one for determination is hereby resolved in favor of the Appellants against the Respondent.

ISSUE TWO
Whether the Court below was right when he held that the suit of the Respondent discloses a reasonable cause of action?

My lords, I have taken time to consider the entire facts and circumstances in this appeal, and the submissions of respective counsel for the parties under issue two as to whether or not the Court below was right when it held that the Respondent’s Suit No. EHC/161/2013 disclosed reasonable cause of action and thereby dismissing the Appellants’ Motion on Notice filed on 4/9/2013?

However, having held firmly that the Respondent’s Suit No. EHC/161/2013 constitutes an abuse of Court process and was thus liable to be dismissed in-limine, there seems to me to be no longer any live issue under issue two dealing with whether or not the Court below was right when it held that the Respondent’s Suit No. EHC/161/2013 was competent as having disclosed reasonable cause of action against the Appellants. In the circumstances of my earlier finding therefore, it is my view that to proceed to consider issue two would amount simply to embarking on a mere academic exercise. This is so because not only is it no longer a live issue but it is strictly an issue that can only be considered and resolved in a competent suit and not in a suit that had been found to be an abuse of the process of Court. Consequently, issue two is no longer of any utilitarian value in this appeal and is hereby discountenanced as going to no issue in this appeal. See Charles Oke & Anor V. Dr. Rahman Mimiko & Ors (2013) All FWLR (Pt. 693) 1853, where the full Court of the Supreme Court per Muhammad JSC, had this to say on this issue:
“It is a principle of law long settled that the general attitude of the Courts of law is that they are loathe in making pronouncements on academic/hypothetical issues as it does not serve any useful purpose”
See Oke V. Mimiko (No. 1) (2014) 1 NWLR (Pt. 1388) 225 @ pp. 254 – 255. See also Mbachu V. Anambra – Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (Pt. 342) 1482 @ p 1497.

Ordinarily, looking at the prayers on the Appellants’ Motion on Notice filed on 4/9/2013, the only prayer thereon relates to the issue of abuse of Court process and none for lack of reasonable cause of action. However, ground two as set forth raised the issue of lack of reasonable cause of action. But, where a complaint that a suit is an abuse of Court process is upheld, that would be the end to the issue whether or not the said suit discloses reasonable cause of action. This is so because in law whether a suit discloses reasonable cause of action or not has nothing to do with the issue whether or not it constitutes an abuse of Court process. Thus, a suit may disclose reasonable cause of action and still constitutes an abuse of Court process, in which case it would still be liable to be dismissed. Conversely, a suit may not disclose any reasonable cause of action but may still not constitute an abuse of Court process, in which case it may not be dismissed on ground of abuse of Court process. What is important therefore, is the complaint against the suit; if it is for both abuse of Court process and non disclosure of reasonable cause of action then so be it and both issues would be considered on their own merit. But if the complaint, as in the only relief in the Appellants’ Motion on Notice filed on 4/9/2013, was for abuse of Court process, then the issue of nondisclosure of reasonable cause of action did not ordinarily arise notwithstanding ground two without any relief founded on it. By the way, in this last paragraph of this judgment, I was merely thinking aloud having already brought the reasoning in this judgment to a close!

On the whole therefore, having resolved issue one for determination in this appeal in favour of the Appellants against the Respondent, and having discountenanced issue two for determination, I hold that the appeal has merit and ought to be allowed. Consequently, it is hereby so allowed.

In the result, the ruling of the High Court of Delta State, Coram: E. I. Oritsejafor J., in Suit No. EHC/161/2013: Emmanuel Ozoemena V. Joseph Okoro & Anor delivered on 26/5/2014, wherein the Appellants’ application seeking the dismissal of the Respondent’s suit for being an abuse of Court process was dismissed is hereby set aside.

In its stead, the Respondent’s Suit No. EHC/161/2013: Emmanuel Ozoemena V. Joseph Okoro & Anor is hereby dismissed for being an abuse of the Court’s process.

There shall be no order as to cost.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I agree.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read in draft form the judgment just delivered by my leader brother, Biobele Abraham Georgewill, JCA. I agree that this appeal has merit and I allow it in the manner set out in the leading judgment.

I abide by the order as to costs.

Appearances:

I. Okoro Esq., For Appellant(s)

O. Onyebuolise Esq., For Respondent(s)