Ralph Nejeh Ojabo V. Inland Bank Nigeria Plc (1998)

LawGlobal-Hub Lead Judgment Report

AYOOLA, J.C.A.

In the High Court of Lagos State the appellant (“the plaintiff”) instituted on action against the respondent (“the defendant”) claiming the sum of N1,100,000 being the total sum of professional fees and charges alleged to be owing to the plaintiff by the defendant for work done and services rendered to the defendant as per the bill of charges, and the sum of N 150,000 “as general damages for breach of agreement and for hardship and inconvenience suffered by the plaintiff’ by the defendant’s failure to pay the plaintiffs professional fees and charges. The plaintiff claimed interest on the sum of N1, 100,000. The plaintiff filed and served a statement of claim on the defendant.

On 22nd March, 1995, or thereabout. The defendant filed an application praying for an order striking out the writ of summons and the statement of claim and all other processes filed in the suit on the ground that the plaintiff had not complied with the provisions of the Legal Practitioners Act, 1975. The application was supported by an affidavit of four paragraphs the material paragraph of which, for the purpose of this appeal, is paragraph 3 wherein the litigation clerk of the defendant’s counsel deposed to the fact that the plaintiff did not comply with the “applicable section of the law” before instituting the action.

The matter came before Olugbani J, on 10th April, 1995. The record of appeal shows that counsel for the defendant argued the application relying on the affidavit in support wherein the only allegation was of the plaintiff’s non – compliance with the provisions of the “applicable law”, apparently, the Legal Practitioner’s Act.

Counsel for the defendant was also recorded as urging the court in the course of his argument, to dismiss the suit on the ground, not stated on the motion paper, that a similar action had been filed in the High Court (suit LD/5408/94) where exactly the same reliefs had been sought, that that suit had been discontinued, and that, consequently, the action before the judge was an abuse of the process of the court.

Counsel for the defendant was recorded as saying that he was not opposing the application. In a short ruling the learned Judge said: “I hereby grant order as prayed. Filing the present suit after withdrawing the earlier application in suit No. 5408/94 in this court and which is entirely on all fores (sic: fours) with this present suit constitutes an abuse of the process of the court. I am inclined to hold that this suit before the court constitutes a gross abuse of the process of this court and is hereby dismissed.” From that decision the plaintiff appealed filing 6 grounds of appeal against a ruling of such brevity. From those grounds of appeal, counsel for the plaintiff had formulated five issues for determination. The defendant’s counsel, on his own, formulated four issues for determination, none of which, as would be seen, presently, has any relevance to this appeal.

The first issue for determination formulated by counsel on behalf of the plaintiff questioned the propriety of the trial judge allowing the respondent to raise an objection in law when it did not file a statement of defence. However, that point not having been raised in the court below the trial judge had not been invited to and did not make a ruling on the question whether or not in view of O.22 rr. 1&2 of the High Court of Lagos State (Civil Procedure) Rules, 1972 the defendant could raise an objection in law without filing a statement of defence. The plaintiff ought to have sought leave of this court to raise a fresh point not raised in the court below. In the absence of an application for such leave it will not be right for this court to proceed to consider the issue. The substance of the arguments in regard to the rest of the issues is that the judge was not right in dismissing the claim when: (i) the application before him was for an order striking out the claim for want of compliance with sections 16(2)(4) and 17(2) of the Legal Practitioner’s Act, 1975; and (ii) on the facts the suit was not in abuse of process of the court.

As earlier stated, the defendant formulated four issues for determination. They are as follows: (1) “What constitutes ‘Special Circumstance’ under Order 3 rule 3 (4) of the Court of Appeal Rules 1981 to justify extension of time within which to appeal against final decision of the lower court”: (2) “Whether the respondent can raise a preliminary objection on a point of law without having filed its defence – Order 22 (3) High Court of Lagos State (Civil Procedure) Rules 1972”; (3) “Whether there should be an end to litigation”, (4) “The difference between ‘Striking Out’ of a case and ‘Dismissal’ and the appropriate step to be taken thereafter.” The issues as formulated by counsel for the defendant displayed a remarkable ignorance of what issues for determination must contain. Such ignorance exhibited in a brief filed in 1997 after several decisions of the Supreme Court and of this court had offered guidance on brief – writing is almost unpardonable. It is not necessary to restate those guidelines which have become trite. It suffices to say that none of the issues formulated in the respondent’s brief arose from the grounds of appeal, except the second issue which, as I have held, the plaintiff cannot be permitted to argue. In regard to the respondent’s first issue, it is plain common – sense that where a party seeks to contend that there are no grounds for granting an extension of time within which to appeal to this court, the proper stage to raise such contention is on the hearing of the application for leave to appeal out of time and not after such extension had been granted and the appeal is properly before this court. Issues three and four are purely academic questions. The result of the erroneous formulation of issues for determination by the defendant’s counsel and his basing arguments for the respondent on them is that the defendant must be taken as having not responded to the arguments in the appellant’s brief. Where the respondent in the respondent’s brief chooses to formulate and argue issues which are not related to the grounds of appeal and to the appeal, the respondent should be taken as having not responded to the appellant’s arguments and the respondent’s brief should be deemed defective by reason of non- compliance with Order 6 rule 4(ii) of the Court of Appeal Rules which provides, inter alia, that the respondent’s Brief shall answer all material points of substance contained in the appellant’s brief.

In my judgment there are merits in the points validly taken by the plaintiff on this appeal. By dismissing the claim on the ground that the plaintiff’s suit was an abuse of the process of the court when that was not the prayer on the application the judge acted outside the ambits of the motion before him. An application that a suit be struck out because some steps precedent to the institution of the suit had not been taken is certainly not the same as invoking the discretionary jurisdiction of the court to dismiss the suit as being an abuse of the process of the court. The facts essential to both prayers are not the same. Where a suit has been taken without complying with the prescribed essential preliminary requirements to the institution of the action, the suit cannot be said to be properly before the court. It is when a suit is in the first place properly before the court that the question can arise whether or not the suit is taken in abuse of process of the court.

There is hardly any need for citation of authorities to buttress the principle now well established that the court would not grant a relief not asked for or beyond what was asked for. The cases cited by counsel for the plaintiff which are clearly to the point include Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350 and Olurotimi v. Ige (1993) 8 NWLR (Pt. 311) 257.In my judgment, the learned judge was clearly in error in dismissing the claim when what was sought by the defendant on his motion paper which remained unamended was an order striking out the suit on the clearly stated ground of non – compliance with the Legal Practitioners Act.

The learned judge was also wrong in holding that the plaintiff’s suit was in abuse of process of the court merely because the plaintiff had discontinued a previous suit. Order 23 rule 1 of the High Court of Lagos State (Civil Procedure) Rules 1972 is clear in its provision that a discontinuance or withdrawal of a case by virtue of the rule shall not be a defence to any subsequent action. Where an action is discontinued with leave of the trial court it is for that court, at its discretion having regard to all the circumstances of the case, to determine whether upon granting leave to discontinue the plaintiff should be debarred from instituting another suit based on the same facts. The facts before the court below perfunctorily stated in the course of the defendant’s counsel’s argument at the hearing of an application brought for a different purpose, are grossly insufficient to justify the learned judge’s conclusion that the plaintiffs suit was brought in abuse of process.

On the whole, I am of the view that this appeal must succeed. I allow the appeal and set aside the order of the court below dismissing the suit. I remit the case to the court below to be heard before another judge of the High Court of Lagos State. The defendant should proceed to file its statement of defence if it so desires and is at liberty to raise therein the question whether in terms of the Legal Practitioners Act the action had been properly instituted. To proceed to order the motion filed on March 22, 1995 be argued will merely prolong the matter unduly. The plaintiff is entitled to the costs of this appeal which I assess at N2, 000.

Other Citations: (1998)LCN/0456(CA)