Miss Ifeyinwa Ogoejeofo V. Daniel Chiejina Ogoejeofo (2006)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

The dispute between the parties in this appeal originated from a landed property known or described as No. 25A, Old Market Road, Onitsha. The property was held under the Mgbelekeke Kola tenancy system of Onitsha by the late Charles Akosa Ogoejeofo who died intestate leaving behind his close family relations and his children amongst whom are the appellant and the respondent in this appeal.

By a suit No. 0/635/98 filed at the Onitsha High Court, the members of the larger Ogoejeofo family sought for an order of court for a declaration that the four sub-families of the late Enyi Ugwuagbalu Eweta Ogoejeofo, the original holder of the property in dispute, were entitled to participate in its inheritance together with the parties in this appeal and their sisters who hitherto claimed exclusive right to the property left behind by their father. This case did not proceed to trial because the parties, made up of 9 plaintiffs members of the 4 sub-families seeking to participate in the sharing of the property and 4 defendants who are members of the family of the parties in this appeal, decided to settle out of court. The undated terms of settlement was duly executed between the parties to that case except Miss Ifeyinwa Ogoejeofo the appellant in this appeal. All the same, the parties reported back to the Onitsha High Court which made the terms of settlement the judgment of the court as agreed by the parties except the appellant.

The appellant who apparently did not agree with the settlement between the parties in suit No. 0/635/98 and was absent in court when the consent judgment was delivered, applied to that court to set aside the judgment. Although this application was opposed by the other parties who were respondents to the application, the learned trial Judge on being satisfied that the appellant was not in fact aware of the alleged settlement, promptly set aside the consent judgment thereby allowing the parties to proceed with the hearing of the case on pleadings. However, while suit No. 0/635/98 was pending at the Onitsha High Court, the respondent in this appeal as plaintiff filed another suit No. 0/443/99 in the same High Court against his own sister Miss Ifeyinwa Ogoejeofo, one of the 4 defendants in the pending suit No. 0/635/98, who is now the appellant in this appeal and claimed the following reliefs against her alone in respect of the property No. 25A Old Market Road, Onitsha –

“1. A declaration that the plaintiff as the head of the family of late Charles Akosa Ogoejeofo of Umudei village, Onitsha is entitled to the management and administration of the said late Charles Akosa Ogoejeofo’s landed property known as and called No. 25A, Old Market Road, Onitsha within jurisdiction in his capacity as the trustee of the family property in accordance with the Kola Customary Law of Mgbelekeke family of Onitsha.

2. A declaration that all the members of the late Charles Akosa Ogoejeofo family both male and females are entitled in common to the ownership and enjoyment of the said property under the Mgbelekeke Kola Customary Law, the property having originally derived from the Mgbelekeke family of Onitsha.
3. An order compelling the defendant to stop her management and administration of the said property and deliver possession of same to the plaintiff for the purpose of such management/administration by the plaintiff.
4. An order for account of all monies, profits and rents since collected by the defendant from the tenants of the said landed property since the death of late Charles Akosa Ogoejeofo.
5. An order compelling the defendant to pay over to the family through the plantiff said monies, profits and rents found to have been so received/collected for purpose of equitable distribution to members of the family.
6. An order that fees of counsel engaged in this suit be paid from the estate’s account. Dated this 10th day of June, 1999.”

On being served with the writ of summons and a motion on notice for an order to appoint the Chief Registrar of the High Court of Justice, Onitsha as a receiver/manager to manage the property in dispute and collect rents pending the determination of the case, the appellant in this appeal as defendant in the case filed a motion on notice dated 2/7/99 which was in the nature of a preliminary objection to the proceedings. The appellant in the motion sought for an order:- “Striking out this suit for being incompetent, invalid, vexatious and abuse of the process of court.” This preliminary objection in the motion was heard on 6/7/99 and in a short ruling delivered by the learned trial Judge the same day, the preliminary objection was overruled and the same was dismissed. The ruling is as follows:-

“The applicant in this motion is praying the court to strike out this suit for being incompetent, invalid, vexatious and an abuse of the process of the court. The applicant raised no issue on the suit being, incompetent, invalid or vexatious. He submitted that it is an abuse of the process of the court in that another suit, suit No. 0/ 635/98 is pending before this court in which the plaintiff who was sued along with the defendant in this suit had given his consent to a consent judgment to the effect that the property in dispute was the family property of the larger Ogoejeofo family. He cannot therefore be heard to approbate and reprobate. The consent judgment in question has been set aside by this court. In 0/635/98, the plaintiff here was sued as a defendant. The suits are actually not so related as to constitute an abuse of the process of the court. Most of the issues raised in the applicant’s affidavit cannot be properly raised at this stage of the hearing. The application is therefore misconceived. It is hereby, dismissed.”

Aggrieved by this decision of the trial court, the appellant appealed to the Court of Appeal which in a unanimous decision dismissed the appeal after agreeing with the trial court that the defendant/appellant had failed to show that the respondent’s suit No. 0/443/99 filed against the appellant constituted an abuse of the process of court. The judgment of the Court of Appeal was delivered on 17/1/2001. Still not satisfied, the appellant then decided to appeal to this court.

Briefs of argument were duly filed and served and the same were duly adopted and relied upon by the learned counsel on behalf of the parties respectively at the hearing of the appeal on 7/10/2005. As agreed by the parties, the only issue arising for determination in this appeal is whether the learned Justices of the Court of Appeal were right in holding that the unchallenged affidavit evidence of the appellant in support of her preliminary objection, did not make out a case of abuse of the process of court against the respondent. In support of this issue, the appellant maintained that her case at the court below was principally based on her contention that the respondent’s case against her was an abuse of the process of court because the respondent was prosecuting the case in bad faith and in collusion with the plaintiffs in the other case No. 0/635/98. The reason given by the appellant in support of this stand was because the respondent’s stand in the earlier case on the subject matter of the two suits, is in conflict with his stand in the case he was prosecuting alone against the appellant. Learned counsel to the appellant explained in his oral submission and in the appellant’s brief of argument that the court below having agreed that the evidence adduced by the appellant in her affidavit in support of the preliminary objection was unchallenged, the fact that the respondent’s case was being prosecuted in bad faith and in collusion with the plaintiff’s suit No. 0/635/98, would have been upheld to sustain the preliminary objection. The cases of Egbuna v. Egbuna (1989) 2 NWLR (Pt.106) 773 at 777; Alagbe v. Abimbola (1978) 2 SC. 39 at 40; Amaefule v. The State (1988) 2 NWLR (Pt.75) 156 at 177; Okafor v. Attorney-General, Anambra State (1991) 6 NWLR (Pt.200) 659 at 681 and Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 at 188-189, were cited and relied upon. It was further pointed out that the respondent who had earlier agreed in suit No. 0/635/98 that the property No. 25A, Old Market Road, Onitsha was not his father’s personal property by signing the terms of settlement and falsely asserting that the appellant had approved the terms of settlement, only to suddenly turn round and sue the appellant alone claiming that the same property in dispute was his father’s personal property, could not have been acting in good faith. Learned counsel therefore urged this court to allow the appeal. For the respondent, it was argued that in the light of the facts before the trial court and the court below, it can not be said that the respondent had been guilty of any abuse of the process of the court such as to render the suit No. 0/443/99 incompetent. Learned counsel observed that at the time the appellant raised her preliminary objection against the filing of the respondent’s suit, although suit No. 0/635/98 on the same property in dispute was still pending at the High Court, it was not commenced by the respondent nor was it between the same parties; that to that extent, it was difficult to see what irritation or injustice the appellant would have suffered consequent upon the commencement of the respondent’s suit against her. Calling in aid the cases of Nwoboshi v. The State (1998) 10 NWLR (Pt.568) 131; Attahiru v. Bagudu (1998) 3 NWLR (Pt.543) 656, learned counsel to the respondent pointed out that in the absence of evidence of multiplicity of actions and the employment of court process to irritate or cause injustice, the case of abuse of the process of court had not been made out by the appellant and therefore urged this court to dismiss the appeal.

My task in resolving the only issue for determination in this appeal is first to ascertain what constitutes an abuse of the process of court and secondly, to determine within the confine of the evidence adduced by the appellant in the affidavit in support of her preliminary objection, whether or not a case of abuse of the process of court had been made out to justify the striking out of the respondent’s suit against the appellant. The questions of what actually constitutes and what does not constitute an abuse of the process of court have been considered and answered by this court in several of its decisions. One of the leading cases on this subject in which Karibi-Whyte, JSC reviewed several earlier decision of this court is the case of Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 at 188-189 where he said:- “The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. It is recognised that the abuse of the process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See Okorodudu v. Okoromadu (1977) 3 SC. 21,. Oyegbola v. Esso West African Inc. (1966) 1 All NLR 170. Thus, the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right, per se. The abuse consists in the intention, purpose, and aim of the person exercising the right to harass, initiate and annoy the adversary, and interfere with the administration of justice; such as instituting different actions between the same parties simultaneously in different courts, even though on different grounds. See Harriman v. Harriman (1989) 5 NWLR (Pt. 119) 6. Similarly so held was where two similar processes were used in respect of the exercise of the same right. Namely a cross-appeal, and a respondent’s notice. See Anyaduba v. N.R.T. Co. Ltd. (1990) 1 NWLR (Pt.127) 397; Jadesimi v. Okotie-Eboh (1986) 1 NWLR (Pt.16) 278. This court has also held as an abuse of the process, an application for adjournment by a party to an action to bring an application to court for leave to raise issues of fact already decided by courts below – See Alade v. Alemuloke (1988) 1 NWLR (Pt.69) 207.”

In Okafor v. A.-G., Anambra State (1991) 6 NWLR (Pt.200) 659 at 681 Karibi-Whyte, JSC again said on the same subject:- “It is the law that multiplicity of actions on the same matter may constitute an abuse of the process of the court. But this is so only where the action is between the same parties with respect to the same subject matter.” Other cases defining what amounts to an abuse of the process of court or judicial process include Doma v. Adamu (1999) 4 NWLR (Pt.598) 311; Benaplastic v. Vasilyev (1999) 10 NWLR (Pt.624) 620; A.-G., Ondo State v. A.-G., Ekiti State (2001) 17 NWLR (Pt.743) 706 at 771 and African Reinsurance Corporation v. JDP Construction Nigeria Ltd. (2003) 13 NWLR (Pt.838) 609 at 635-636. However this court recently in Mobil Production Nigeria Unlimited v. Monokpo (2003) 18 NWLR (Pt.852) 346 at 430-431, held that filing of two motions which do not necessarily seek the same or similar reliefs, though in the same case between the same parties would not amount to an abuse of the process of the court. In the case at hand, it is indeed the law as argued by the appellant that since the respondent had failed to file any counter affidavit to challenge the facts averred in the appellant’s affidavit in support of the preliminary objection to the competence of the respondent’s action, the unchallenged facts remained uncontroverted and therefore deemed admitted. See Egbuna v. Egbuna (1989) 2 NWLR (Pt.106) 773 at 777 and Alagbe v. Abimbola (1978) 2 SC. 39 at 40. However, it is also the law that the unchallenged and uncontroverted facts deemed admitted in the affidavit must be capable of proving and supporting the case of the appellant as the applicant. In other words, the evidence contained in the unchallenged affidavit must be cogent and strong enough to sustain the case of the applicant which in the instant case was that the suit No. 0/443/99 filed by the respondent was incompetent, invalid, vexatious and an abuse of the process of court. A careful examination of the facts in support of the appellant’s preliminary objection shows that a case of multiplicity of actions on the same subject matter between the same parties and on the same issues, was certainly not made out by the appellant at the trial court. Consequently, the court below was right in its findings on the issue.

From the uncontroverted facts contained in the appellant’s affidavit, while the subject matter in the two suits No. 0/635/98 and No. 0/443/99 pending before the Onitsha High Court of Justice being the property known and described as No. 25A, Old Market Road, Onitsha is the same, the parties and the nature of the dispute or issues in the two suits are not the same. The parties in suit No. 0/635/98 as shown in the ‘Terms of settlement’ exhibit ‘A’ to the affidavit in support of

the motion were:-

“1. Ifeanyi Ogoejeofo

2. Eddy Ogoejeofo
3. Patric Bosa Ogoejeofo
4. John Onyebuchi Ogoejeofo
5. Nemkiti Ogoejeofo
6. Chugbo Ogoejeofo
7. Onochie Ogoejeofo
8. Donmay Chukwuemeka Ogoejeofo
9. Carl Chukwuka Ogoejeofo”

as the plaintiffs, while the defendants were the parties in the present appeal and their two sisters. In other words the defendants in that suit were:-

“1. Daniel Chiejina Ogoejeofo

2. Mrs. Florence Adebiyi
3. Sister Mary Magaret Ogoejeofo
4. Miss Ifeyinwa Ogoejeofo.”

In the second case suit No. 0/443/99 on the other hand, the only parties are the appellant and the respondent in the present appeal who are the plaintiff and the defendant respectively. The parties in that case as shown on the writ of summons are:- “Daniel Chiejina Ogoejeofo (suing as the Head of the family of late Charles Akosa Ogoejeofo of Umuda Village, Onitsha)” as the plaintiff while the defendant “Miss Ifeyinwa Ogoejeofo”

It can be seen that as to the parties in the two suits, the only connection in the two actions is that the plaintiff and the defendant in suit No. 0/443/99 are also among the 4 defendants in suit No. 0/635/98. The plaintiffs in suit No. 0/635/98 have nothing to do with suit No. 0/443/99. In this regard, the contention of the respondent that the parties in the two pending suits No. 0/635/98 and 0/443/99 are not the same is indeed well founded.

Coming to the issues and the nature of the disputes requiring resolution by the trial court, the two suits again are entirely different. In suit No. 0/443/99, the parties in this appeal as a brother and sister, are posed to fight for the control of the management and administration of the property No. 25A, Old Market Road, Onitsha. Suit No. 0/635/98 on the other hand is merely seeking to establish the status of that property under the Onitsha Native Law and Custom as not belonging exclusively to the father of the parties in this appeal so as to enable members of other branches of Ogoejeofo larger family to participate in the inheritance of the property. Thus, looking at the two actions from this angle as well, the two actions are poles apart and therefore not the same. With this result in the analysis of the two cases, the respondent as the plaintiff in suit No. 0/443/99, cannot be accused of instituting a multiplicity of actions between the same parties on the same subject matter and on the same issues simply because suit No. 0/635/98 was pending in the same Onitsha High Court in which the plaintiffs have nothing to do with his own case in which he is trying to take over the control and management of the property from his own sister. The respondent has the right to take the steps he took in filing his action against his sister. For exercising that right, the respondent cannot be accused of any abuse of judicial process or abuse of the process of court.

The appellant in her argument has blamed the court below of not having addressed the real issue presented to it in the appeal before it by relying only on the failure of the appellant to prove multiplicity of actions in dismissing her appeal. It is really correct that, the appellant also relied heavily on the fact that the respondent not having denied that he was prosecuting his case No. 0/443/99 against the appellant in bad faith and in alleged collusion with the plaintiffs in suit No. 0/635/98, the lower court should have found those acts to have amounted to abuse of the process of court. This stand of the appellant however is not supported by the record of this appeal particularly the judgment of the lower court which gave adequate consideration to the issue of the alleged collusion and came to conclusion that there was no evidence to support it. Part of this judgment at pages 98-99 of the record is quite clear. It reads:-

“Even if suit 0/635/98 had persisted, the trial court was right for holding that it was not commenced by the respondent nor was it between the same parties. What irritation or injustice appellant suffered consequent upon the commencement of suit No. 0/443/99 by the respondent was not in evidence. The lower court’s view that abuse of its process had not been constituted by the foregoing can hardly be faulted. I share its conclusion that on the facts before it, absence of evidence of multiplicity of actions and the employment of its process to irritate or cause injustice, can not be ignored. The respondent cannot be lawfully shut out from the court in his bid to enforce a right that had been threatened.”

I entirely agree with the court below that in the absence of evidence from the uncontroverted affidavit of the appellant of the existence of multiplicity of actions and the employment by the respondent of court process to irritate or cause injustice or interfere with the due administration of justice, a case of abuse of the process of court had not been made out by the appellant to justify preventing the respondent from proceeding with his action in suit No. 0/443/99 against the appellant.

For the foregoing reasons, this appeal has no merit and the same is hereby dismissed. There shall be N10,000.00 costs in favour of the respondent.

SC.146/2001