Adegbanke V. Ojelabi & Ors (2021)
LAWGLOBAL HUB Lead Judgment Report
MARY UKAEGO PETER-ODILI, J.S.C.
This is an appeal against the decision of the Court of Appeal, Ibadan Division or Court below or lower Court, Coram: M.D. Muhammad, J.I. Okoro JJCA (as they then were) and A.P.E Awala JCA.
The Court below allowed the appeal of the respondents herein by its decision of 18/04/2007 and it is against that judgment that the appellant has come to the Supreme Court.
BACKGROUND FACTS
By its Writ of Summons filed on the 17th March, 1998, the Plaintiff/appellant claimed as follows:-
(1) A declaration that the Plaintiff’s i.e Akinsanya Akanji Section of Ajayi Family of Jagun Sodeke Compound, Ilora, is entitled to a right of occupancy over all that land known as Igbo Ede lyin and being along Ilora-ljaye Road, Ilora in Afijo Local Government Area of Oyo State.
(2) An order setting aside the grant to the 1st Defendant by the 3rd Defendant through the 4th Defendant of Certificate of Occupancy No.22/22/2378 dated 26/5/81 and No. 30/30/3150 dated 26/10/95 of Land Registry Ibadan over part of the Plaintiff’s Family land at Igbo-Ede which were obtained by the 1st Defendant without the knowledge, consent or authority of the Plaintiff’s Family.
(3) An order setting the sale and/or conveyance of part of the land at Igbo-Ede to the 2nd Defendant, the said sale and/or conveyance having been made by the 1st Defendant without the knowledge, consent or authority of the Plaintiff’s Family.
(4) Injunction restraining the 1st and 2nd Defendants whether by themselves, their agents, servant, privies or otherwise howsoever called from entering into or committing further acts of trespass on the Plaintiff’s Land at Igbo-Ede.
(5) The sum of N40,000.00 being damages for trespass committed by the 1st and 2nd Defendant, their agents, servant, privies or otherwise howsoever called when they entered into the Plaintiff’s farmland at Igbo-Ede and destroyed the Plaintiff’s palm trees and other economic plants and substance on the said land and commenced or caused to be commenced building operations on the said farm land.
The Statement of Claim was also filed together with the Writ of Summons.
The Claim is contained in Pages 2-7 of the records.
After filing the Statement of Claim, and service was effected on the Defendants, the Defendants/respondents’ entered appearance and subsequently filed an application seeking to strike out the suit on the grounds that it constituted an abuse of the process of Court.
The grouse of the appellant was that Suit No. HOY/7/97 which had been terminated was the same as this suit and as such constituted an abuse of the process of Court. The learned trial judge in a ruling dismissed the application on the grounds that the previous Suit No. HOY/7/1997 which was dismissed in limine could not form the basis for res-judicata to prevent the filing of Suit HOY/6/1998. At page 44 of the record, the Learned Trial Judge held as follows:
“l am persuaded that the previous suit was dismissed on the ground that the Plaintiff instituted the action on behalf of Ajayi Family instead of Akinsanya Akanji Section of Ajayi Family. This was a procedural defect and the case itself was dismissed in limine and not on merit. I therefore do not consider the institution of the present action as either vexatious or an abuse of the process of Court.”
It is against that ruling that the respondents herein appealed to the Court of Appeal. In the Court of Appeal, the Learned Justices in considering the appeal, suo-motu raised the effects of Sections 287 and 270 of the 1999 Constitution, decided on it without affording the parties an opportunity to address on the point.
The justices did not consider the issue in the appeal which was the effect of a dismissal not on the merit. The argument before the Court of Appeal was that since No. HOY/7/1997 was dismissed on a preliminary point of law, such dismissal could not amount to a dismissal on the merit barring filing of a subsequent action i.e HOY/6/1998. The appellant felt that the Court of Appeal in this instance failed to follow the Supreme Court authorities of KOSSEN V SAVANNAH BANK (1995) 12 S.C.N.J 29 AT 40 AND OBASI BROTHERS v MBA SECURITIES (2005) ALL FWLR PT. 261 AT 232 which were brought to their notice to the effect that a dismissal not on the merit has the effect of a mere striking out.
It is against that decision of the Court of Appeal, that the appellant has decided to appeal to the Supreme Court. The notice of appeal is at pages 119 — 121 of the record. Leave to appeal on grounds other then law was obtained at the Court of Appeal on 19/6/2007 in compliance with Section 233(3) of the 1999 Constitution.
On the 9th day of March, 2021 date of hearing, Learned Senior Counsel for the appellant, Oladipo Olasore adopted the amended brief of argument filed on 10/12/2018 in which were nominated three issues for determination, viz:-
(A) Whether the Court of Appeal was right in suo-motu raising and deciding the issue of Sections 270 and 287 of the 1999 Constitution without giving the parties the opportunity to address on the point.
(B) Whether the Court of Appeal properly identified the main issue before it.
(C) Whether the Court of Appeal was right in holding that the dismissal of Suit No. HOY/7/1997 in limine constituted a bar to a subsequent action i.e HOY/6/1998.
The appellant also filed an additional list of authorities.
Learned counsel for the 1st respondent, F.A. Folorunso Esq adopted the brief of argument filed on the 24/11/2010 and identified two issues for determination as follows:-
(1) Whether reference by the Learned Justices of the Court of Appeal to Sections 270 and 287 of 1999 Constitution of the Federal Republic of Nigeria while arriving at their decision and judgment at the Lower Court amounts to raising a fresh issue which necessitates further addresses of counsel? This issue is covered by Grounds 1, 2 and 3 of the Grounds of Appeal.
(2) Whether institution of Suit HOY/6/1998 after dismissal of Suit HOY/7/1997 constitutes an abuse of Court Process?
The 2nd and 3rd respondents were absent though served with the hearing notices on 6/3/2021. They also did not file any briefs of argument.
I shall, for ease of reference, utilise the three issues donated by the appellant.
ISSUE NO.1
Whether the Court of Appeal was right in suo motu raising and deciding the issue of Sections 270 and 287 of the 1999 Constitution without giving the parties the opportunity to address on the point.
Learned Senior Counsel for the appellant submitted that the issue before the Court below was whether or not a suit dismissed in limine could form the basis of res-judicata so as to prevent the filing of a subsequent action. That the lower Court in resolving the issue went outside the issue raised and used its own issues on Sections 270 and 287 of the 1999 Constitution. That the Court of Appeal did not allow any of the parties address it on the said Sections 270 and 287 of the 1999 Constitution as to whether or not a judgment is valid and binding until it is set aside. That the issue was not whether or not the judgment was binding but whether or not the judgment in HOY/6/97 could prevent the filing of a subsequent action HOY/6/98. The learned silk stated that the result of the failure to allow the appellant address on this point occasioned a miscarriage of justice. He cited Oshodi v Eyifunmi (2000) NWLR (pt.360) page 1273 at 1305.
Learned counsel for the 1st respondent contended that the issue of Sections 270 and 287 of the Constitution was an obiter dictum which does not have the status of a ratio decidendi. That nothing in Section 270 of the Constitution called for counsel’s addresses.
He went further to say for the 1st respondent that the Court as master of the Law and its Rules is bound to consider all issues based on facts and relevant law in reaching the justice in a matter before it. He cited Madam Helen Obulor & Ors v Linus Weso Oboro (2001) FWLR (pt.47) 1004 at 1007.
For the 1st respondent, it was submitted that the consideration of the Constitution of the Federal Republic of Nigeria had not occasioned a miscarriage of justice and does not constitute a reason for the Supreme Court to reverse the judgment of the Court below. He referred to Chief Johnson Imah & Anor v Chief Ajowele Okogbe & Anor (1993) 12 SCNJ 57 at 77.
Learned counsel for the 1st respondent stated further that the failure of the Court to give an opportunity to the parties to address on a subject does not always occasion a substantial miscarriage of justice, as each case depends on its own merit. He relied onOladejo Adewuyi Ajuwon & Ors v Fadele Akanni & Ors (1993) 12 SCNJ 32 at 52.
The issue before the Court of Appeal was whether or not a suit dismissed in limine could form the basis of res judicata so as to prevent the filing of a subsequent action. In resolving the issue, the Court below on its own motion and without calling on the parties to address on it, raised the provisions of Sections 270 and 287 of the 1999 Constitution and proceeded to hold thus:-
“The point that emerges from a community reading of clear and unambiguous words of the foregoing statutory provisions, and it must be emphasised, is that a subsisting judgment of a Court of competent jurisdiction remains valid and binding, even where the person it affects or the Court it is waved at believes that the judgment is void, until that judgment is set-aside by a Court of competent jurisdiction. In the instant case, the lower Court decided to deviate from the clear decision of a competent Court that had “dismissed” an action because the action rather than being so “dismissed” ought to have “been struck out”. The lower Court should have been guided by what the decision in suit HOY/7/97 actually was in relation to the matter before it, rather than what the decision ought to have been. Having acted otherwise, it got derailed and its decision must be said to be wrong. The Court’s unqualified obligation is to enforce the judgment in suit HOY/ 7/97 as it is.”
The Sections 270 and 287 of the 1999 Constitution of the Federal Republic of Nigeria applied suo motu by the Court below without reference to the parties for address on the issues are hereby reproduced hereunder thus:-
Section 270(1) “There shall be a High Court for each State of the Federation. The High Court of the State shall consist of-
(a) A Chief Judge of the State, and
(b) Such number of Judges of the High Court as may be prescribed by a Law of the House of Assembly of the State”.
Section 287(1) provides “The decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and person, and by Courts with subordinate jurisdiction to that of the Supreme Court
(2) The decisions of the Court of Appeal shall be enforced in any part of the Federation by all authorities and persons and by Courts with subordinate Jurisdiction to that of the Court of Appeal.
(3) The decisions of the Federal High Court, a High Court and of all other Courts established by this Constitution shall be enforced in any part of the Federation by jurisdiction to that of the Federal High Court, a High Court and those other Courts respectively”.
Learned counsel for the 1st respondent took the angle that the use of Sections 270 and 287 of the Constitution was in the course of an obiter dictum and thus, not having the status of a ratio decidendi. Also that a Court of law is not confined to only the legal authorities cited to it by counsel nor does the Court need to give counsel notice of the authorities or law it intends to use.
I agree that in keeping with Section 74(1) of the Evidence Act which provides thus:-
“The Court shall take judicial notice of all laws and enactments and any subsidiary legislation made thereunder having the force of law now heretofore in force, or hereafter to be in force in any part of Nigeria”, that the Court would utilise any such law. See T.M. Orugbo & Anor v Bulana Una & Ors (2002) 9 SCNJ 12 at 32-33.
This Court held that “A Court of law has no legal duty to confine itself only to authorities cited by the parties. It can, in an effort to improve its judgment, rely on authorities not cited by the parties. Historical books or whatever books are authorities and the Koko District Customary Court was free to make use of them in its judgment. That per se is not breach of fair hearing, not even the twin rules of natural justice. The Court is under no duty to give notice to the parties that it intends to use a particular book. That will be a ridiculous situation.”
I posit most humbly that the Lower Court (Court of Appeal) rightly found that the Appeal before it bordered on the import of Sections 270 and 287 of 1999 Constitution of Federal Republic of Nigeria (reproduced above) as well as Order 24 Rules (2) (4) of the High Court Civil Procedure Rules of Oyo State.
That there is nothing in Section 270 that calls for counsel addresses and the Court has not said anything that amplifies the provision of the said section.
Section 287 of the Constitution of Federal Republic of Nigeria 1999 makes provision for enforcement of Judgment.
Section 287 (3) makes provision for enforcement of Judgment of Federal and State High Courts.
The section provides that such judgment shall be enforced by all authorities and persons and by other Courts of law with subordinate jurisdiction to that of the Federal High Court, a High Court.
While the Court as master of the law and its Rules are bound to consider all issues based on facts and relevant law in reaching justice in a matter before it, it must not shut out the parties who initiated the process in the first place and owner of the cause or matter in making the decision which effect would impact on the parties. See Madam Helen Obulor & Ors v Linus Weso Oboro (2001) FWLR (pt.47) 1004 at 1007.
It is because of the import of the application of Sections 270 and 287 of the 1999 Constitution (supra) on the decision of the Court of Appeal that the question that is thrown up is if a miscarriage of justice has not been occasioned. It is not in the simplistic dismissal by counsel for the 1st respondent that what the Court below said in regard to those sections was an obiter dictum and it would be so taken. This is so since each case is decided on its own merit and a situation that would otherwise be taken as an obiter dictum, the circumstances surrounding it might place it in a pre-eminent position where it would occupy the status of a ratio decidendi.
Again to be said is that it is not every error of law that is committed by a trial or appellate Court that justifies the reversal of a judgment. For a reversal to take place, the error must have occasioned a miscarriage of justice as it was material in the decision reached. See Chief Johnson Imah & Anor v Chief Ajowele Okogbe & Ors (1993) 12 SCNJ 57 at 77; Oladejo Adewuyi Ajuwon & Ors v. Fadele Akanni & Ors (1993) 12 SCNJ 32 at 52.
In the case at hand where the Court below did not allow any of the parties address it on Sections 270 and 287 of the 1999 Constitution as to whether or not a judgment is valid and binding until it is set aside, the issue really before the Court was not whether or not the judgment was binding, but rather whether or not the judgment in HOY/7/97 could prevent the filing of a subsequent action HOY/6/98, as a result of which none permission of the appellant to address on the point, a miscarriage of justice had taken place. See Oshodi v Eyifunmi (2000) NWLR (pt.8) 1273 at 1305. The Supreme Court said thus:
“Beside, the Court of Appeal should have called on the parties, particularly the appellants who were prejudiced by its finding to address it on the question of the identity of the issues in both cases before setting aside suo motu the decision made in their favour by the trial Court. See: IKOKU vs. EKEUKWU (1995) 7 N.W.L.R (PT. 410) 637 AT 654, OLUMOLU VS ISLAMIC TRUST OF NIGERIA (1996) 2 NWLR (PT. 430) 253 AT 266.
This is because the law is well settled that on no account should a Court raise a point suo motu, no matter how clear it may appear to be, and proceed to resolve it one way or the other without hearing the parties. See: UGO VS. OBIEKWE (1989) 1 NWLR (PT.99) 566 AT 581. If it does so, in a given situation where hearing from the party is necessary, it will be in breach of the party’s right to fair hearing, See: OJE VS BABALOLA (1999) 4 N.W.L.R. (PT. 185) 267 AT 280″.
In the case at hand, there was no miscarriage of justice. The issue is resolved in favour of the 1st respondent.
ISSUES 2 & 3
- Whether the Court of Appeal properly identified the main issue before it.
- Whether the Court of Appeal was right in holding that the dismissal of Suit No. HOY/7/97 in limine constituted a bar to a subsequent action i.e HOY/6/98.
For the appellant, learned silk submitted that the issue before the lower Court was whether or not the dismissal of Suit HOY/7/97 could act as a subsequent bar to the filing of Suit HOY/6/98. That the actual fact is that the argument of both parties was on whether or not HOY/7/97 was dismissed in limine or on the merits and what effect had such a dismissal on the filing of a new suit. That the Court below did not properly identify this live issue but went on its own to raise the question of Section 287 of the 1999 Constitution and holding that a judgment is valid and binding until set aside which was erroneous as the real issue before it was not touched and pronounced upon which is the effect of the dismissal in HOY/7/97 and its effect in law. The result being a miscarriage of justice. He cited Ebba v Ogodo (1984) 1 SCNLR 372; Okonji v Njokanma (1991) 7 NWLR (pt. 202) 131.
Learned Senior Counsel for the appellant contended that HOY/7/97 was dismissed on a preliminary point and the learned trial judge was right to hold that the dismissal had to do with a procedural defect and the dismissal in limine and not on the merit and the institution of the new action before him was neither vexatious nor an abuse of the process of Court. He cited Jelson v Harvery (1984) 1 All ER 12.
He stated that the dismissal under discourse had the effect of a mere striking out in law and so a subsequent action could still be brought. He referred to Kossen v Savannah Bank (1995) 25 SCNJ 29 at 40; Obasi Brothers v MBA Securities (2005) All FWLR (pt. 26) 216 at 232; Okoye v NCF (1991) 6 NWLR (pt. 199) 501 at 532.
Learned counsel for the 1st respondent advanced his views by contending that the dismissal of Suit NO.HOY/7/97 had not only put an end to the appellant’s claim but also created a bar to subsequent claims. He cited Ogbechie & Ors v Onochie & Ors (1988) 1 NWLR (pt.70) 370 at 395; Eronini & Ors v Iheuko (1989) 2 NWLR (pt.101) 46 at 60 etc.
That the fact that oral evidence had not been led in support of the appellant’s pleadings in Suit No. HOY/7/97 is not a justification for holding that the suit had been dismissed in limine and not on merit as in this case where the learned trial judge had considered the averments in the pleadings. He cited Egbe v Alhaji & Ors (1990) 1 NWLR (pt. 128) 546 at 591 etc.
On whether the institution of Suit HOY/6/98 after dismissal of Suit HOY/7/97 constitutes abuse of Court process, the exploration of the concept of abuse of Court process becomes germane. In the case of Saraki v Kotoye (1992) 9 NWLR (pt. 264) 156 at 188, this Court stated thus:-
“The concept of abuse of judicial process is imprecise. It involved circumstances and situations of infinite variety and conditions. This will arise in instituting a multiplicity of actions on the same opponent on the same issues. See Okorodudu v Okoromadu (1977) 3 SC 21; Oyegbola v Esso West West (1966) 1 All NLR 170.
Thus the multiplicity of actions on the same parties even where exist a right to bring the actions 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”.
In the case at hand, the appellant had filed the instant suit between the same parties in respect of the same subject matter and issues as in Suit HOY/7/97 that had been dismissed.
The issue before the lower Court is whether or not the dismissal of suit HOY/7/97 could act as a subsequent bar to filing of Suit HOY/6/98. The argument of both parties was whether or not HOY/7/97 was dismissed in limine or on the merits and what effect that dismissal had on the filing of a new suit. While the appellant herein contended that Suit HOY/7/97 was dismissed in limine and as such could not be a bar to a subsequent action, the respondents took a contrary view.
The lines along which this appeal is contested are stated hereunder as follows:-
For the appellant, that what happened at the Court below could be cured by a simple amendment and so the dismissal of the action cannot translate to a dismissal on the merit. That the Suit No. HOY/7/97 was dismissed in limine without a hearing of the case on the merit hence its effect was a mere striking out. That the Court below had not considered the above position and had erroneously gone into raising the issues of Sections 287 and 270 of the 1999 Constitution without affording the parties an opportunity to address on the point. The appellant further contended that the dismissal of HOY/7/97 was not a bar to the filing of a subsequent action such as HOY/6/98 which did not constitute an abuse of the Courts process.
The opposing contention of the respondent being that the consideration of the provisions of Sections 270 and 287 of the Constitution of the Federal Republic of Nigeria by the Court of Appeal in arriving at its judgment has not occasioned any miscarriage of justice to the appellant. That the order of dismissal put an end to the claim of the appellant and created a bar to the subsequent suit hence the institution of Suit No. HOY/6/98 by the appellant, after that earlier dismissal of HOY/7/97 constitutes an abuse of Court process.
The Appellant had earlier instituted Suit No. HOY/7/97 against the Respondents in respect of the land, the subject matter of this Suit in which he claimed 8 reliefs including the ones being claimed by the Appellant in this case. Suit No. HOY/7/97 was dismissed by the High Court on 5th day of February, 1998 on the ground that the Statement of Claim which the Appellant filed did not disclose a reasonable cause of action.
The appellant filed an appeal against dismissal of Suit No. HOY/7/97 and later filed Suit No. HOY/6/98.
The 1st Respondent filed an application for dismissal of Appellant’s case in Suit HOY/7/97 and this suit is the land in dispute at Igbo-Ede. The trial Court also found that reliefs in the Suit No. HOY/ 7/97 includes the reliefs being claimed in this suit but nevertheless the action was held not to be vexatious or constitute an abuse of the process of the Court.
However the Court of Appeal, Ibadan upturned the findings of the Learned Trial Judge.
In the course of reaching its decision, the Court of Appeal made references to Sections 270 and 287 of CFRN. The appellant had a grouse on the Court below utilising those constitutional provisions without calling on the parties especially the appellant to address on it. That stance the 1st respondent rejects. The sections are reproduced hereunder thus:-
Section 270
(1) “There shall be a High Court for each State of the Federation.
(2) The High Court of the State shall consist of-
(a) A Chief Judge of the State, and
(b) Such number of Judges of the High Court as may be prescribed by a Law of the House of Assembly of the State”.
Section 287
(1) provides “The. decision of the Supreme Court shall be enforced in any part of the Federation by authorities and persons, and by Courts with subordinate Jurisdiction to that of the Supreme Court.
(2) The decisions of the Court of Appeal shall be enforced in any part of the Federation by all authorities and persons and by Courts with subordinate Jurisdiction to that of the Court of Appeal.
(3) The decisions of the Federal High Court, High Court and of all other Courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons, and by other Courts of Law with subordinate jurisdiction to that of the Federal High Court, a High Court and those other Courts respectively.
It is to be said loud and clear that a Court of law has no legal duty to confine itself only to authorities cited by parties. It can, in an effort to improve its Judgment rely on authorities not cited by parties. The Court is also under no duty to give notice to the parties that it intends to use a particular book or authority. See: Section 74(1) (a) Evidence Act 2004 which provides “The Court shall take judicial notice of the following facts — (a) all laws or enactments and any subsidiary legislation made thereunder having the force of law now heretofore in force, or hereafter to be in force, in any part of Nigeria.”
Section 74 (1) (a) of Evidence Act 2004 is now Section 122 (2) (a) of Evidence Act 2011.
The consideration of the provisions of Sections 270 and 287 of Constitution of Federal Republic of Nigeria 1999 has not occasioned a miscarriage of justice and does not constitute a reason for this Court to reverse the judgment of the Lower Court. I refer the case of CHIEF JOHNSON IMAH & ANOR VS CHIEF AJOWELE OKOGBE & ANOR (1999) 12 SCNJ 57 AT 77 where this Court held “However, it is wrong for a Court to raise and decide an issue because it is material for the determination of the case or appeal before it, which has not been raised by the parties to the case themselves without giving the parties an opportunity of being heard on it.”
The principle emaciated in Imah v Okogbe (supra) above cited does not apply here.
It need be brought up that it is not in all instances of failure of a Court to give opportunity to the parties to address it that automatically occasions a miscarriage of justice since each case depends on its own merit. Therefore, it is not sufficient for the purpose of reversing a judgment merely to show that an error of law was committed by the trial or appellate Court. The appellant must further demonstrate or show that the error of law in the case in question occasioned a miscarriage of justice. In other words, the error must have substantially affected the result of the decision and that is not the case in this instance. See Chief Johnson Imah & Anor v Chief Ajowele Okogbe & Anor (supra). In the case of OLADEJO ADEWUYI AJUWON & ORS VS FADELE AKANNI & ORS (1993) 12 SCNJ 32 AT 52 this Court held “It is not every error of law that is committed by a trial or appellate Court that justifies the reversal of a judgment. An appellant, to secure the reversal of a judgment, must further establish that the error of law complained of did in fact occasion a miscarriage of justice and/or substantially affected the result of the decision.
An error in law which has occasioned no miscarriage of justice is immaterial and may not affect the final decision of a Court. This is because what an Appeal Court has to decide is whether the decision of judge was right and not whether his reasons were, and a misdirection that does not occasion injustice is immaterial.
The error in law in applying the doctrine of lis pendens complained of did not occasion any miscarriage of justice. The erroneous application of the doctrine of lis pendens notwithstanding, there was no other course that was open to the Court of Appeal in the appeal than to invalidate the sale in issue and to dismiss the appeal before it”.
The reference by the Learned Justices of the Court of Appeal to Sections 270 and 287 of 1999 Constitution of the Federal Republic of Nigeria while arriving at their decision and judgment does not amount to raising a fresh issue which necessitated further addresses of counsel and that the reference has not occasioned miscarriage of justice.
On the concept of abuse of Court process, a long line of judicial authorities has explained it since the concept of abuse of judicial process is imprecise and involves circumstances and situations of infinite variety and conditions. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See SARAKI V KOTOYE (1992) 9 NWLR (PT. 264) 156 at 188. See: OKORODUDU VS OKOROMADU (1977) 3 SC 21; OYEGBOLA VS ESSO WEST AFRICA (1966) 1 ALL NLR 170.
It follows that, the multiplicity of actions on the same subject matter between the same parties even where exist a right to bring the actions 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 as in this case where the Appellant had filed the instant suit between the same parties in respect of the same subject matter and issues as in Suit No. HOY/7/97 that had been dismissed. That dismissal of suit No. HOY/7/97 had not only put an end to the Appellant’s claim but also created a bar to subsequent claims.
I place reliance on the following authorities – OGBECHIE & ORS VS ONOCHIE & ORS (1988) 1 NWLR (PT.70) 370 AT 395; ERONINI & ORS VS IHEUKO (1989) 2 NWLR (PT.101) 46 AT 60; REGISTERED TRUSTEES OF IFELOJU FRIENDLY UNION VS ALHAJA BEWAJI KUKU (1991) 5 NWLR (PT. 189) 65 AT 79. All sections of Ajayi family were parties to Suit No. HOY/7/97 and so are bound by the judgment in the said suit. See: OKONJI VS NJOKANMA (1989) 4 NWLR (PT. 114) 161 AT 166 – 167; OTAPO VS SUNMONU (1987) 2 N WLR (PT.58) AT 623.
The fact that oral evidence was not led in support of the Appellant’s pleading in Suit No. HOY/7/97 is not a justification for holding that the suit was dismissed in limine and not on merit.
The word “Hearing” was judicially considered by the Supreme Court in OKOYE & ORS VS NIGERIAN CONSTRUCTION & FURNITURES CO. LTD. & ORS (1991) 6 NWLR (PT.199) 501 AT 522 where this Court held “Hearing” a case is not only by oral evidence. Submissions from counsel without oral evidence from parties and the Court consequently giving judgment on the basis of the submissions may amount to hearing and determination of a case or matter.
I call attention to the averments of facts pleaded by Appellant in his Statement of Claim in Suit No. HOY/7/97 which were relied upon in the Respondent’s application case. The averments of facts pleaded by the Appellant were deemed to have been admitted for the purpose of the application. See: EGBE VS ALHAJI & ORS (1990) 1 NWLR (PT. 128) 546 AT 591.
The submissions from counsel in Suit No. HOY/7/97 which were based on Appellant’s pleadings in the case constituted a hearing in the same. The Learned Trial Judge that dismissed Suit No. HOY/ 7/97 went into merits of the said suit before he dismissed same. See: TOMTEC NIGERIA LIMITED VS FEDERAL HOUSING AUTHORITY (2009) 12 SCNJ 190 AT 201 -202 where this Court held “A decision on merit is one rendered after argument and investigation and a determination as to which of the parties is in the right as distinguished from a judgment or decision rendered upon some preliminary or formal part or by default and without trial”.
The facts in the case of KOSSEN (NIG) LIMITED & ANOR VS SAVANNAH BANK OF NIGERIA LTD (1995) NWLR (PT. 420) 439 are different from this case and the decision in the said case is not applicable to the case at hand.
The order of dismissal in question in the case was set aside by the Court of Appeal while the order of dismissal of Suit No. HOY/ 7/97 still subsists up till date.
It needs be reiterated that a Court after the dismissal of a suit before it lacks the competence to delve into the matter any longer.
The fact that the Court is being presided over by another judge of the same jurisdiction as the judge that dismissed Suit No. HOY/7/97 does not make any difference.
The Court lacks the jurisdiction to re-phrase the judgment, of a Court of co-ordinate and competent jurisdiction.
I resolve this issue 3 to the effect that institution of Suit No. HOY/6/98 after dismissal of Suit No. HOY/7/97 constitutes an abuse of Court process and Suit No. HOY/6/98 should be dismissed.
See: NGWO VS MONYE (1970) 1 ALL NLR 91, SHITTA BEY VS LEDB (1962) ALL NLR 373; CARDOSO VS DANIEL (1986) 2 NWLR (PT. 20) 1, UDO VS OBOT (1989) 1 NWLR (PT. 95) 59, ONUOHA VS NBN LTD (1999) 13 NWLR (PT. 636) 621 AT 624; PRINCE EYINADE OJO VS OLAYIWOLA OLAWORE (2008) 6 SCNJ 122 AT 136.
The appellant has laboured in vain in the action that had been determined with finality at the trial High Court with that dismissal albeit without a hearing of evidence. The circumstances surrounding that dismissal wherein the trial Court held that there was no disclosure of a cause of action made it so. Therefore, the institution of Suit No. HOY/6/98 by the appellant against the respondents constitutes an abuse of Court process, the said suit being between the same parties and on the same subject matter as Suit No. HOY/7/97 which had been dismissed. The Court of Appeal was right on all fronts in the summation and conclusion.
The appeal clearly lacks merit and I dismiss it. I order costs of one Million (N1,000,000) to the 1st respondent to be paid by the appellant.
Appeal Dismissed.
SC.115/2008
