Alhaji Ramoni Mohammed Opekun V. Alhaji Alidu Afolabi Sadiq & Ors (2002)
LawGlobal-Hub Lead Judgment Report
Onnoghen, J.C.A.
This is a ruling on an application by the appellant/applicant praying the court for “an order re-listing this appeal which was struck out on 21st day of May, 1998.” The application is supported by an affidavit of 10 paragraphs as well as a further affidavit of 3 paragraphs on which the applicant relied in moving the court. On the other hand the 1st respondent caused a notice of preliminary objection to the said motion to be filed as well as a counter affidavit.
When the matter came up for hearing on 27th March, 2002, learned counsel for the appellant/applicant, Seeni Okunloye, Esq. informed the court that the application is grounded on Order 3 rule 25(2) of the Court of Appeal Rules. Referring to paragraph 6(i) of the supporting affidavit and exhibit F A I attached to the further affidavit, learned counsel submitted that the main reason for striking out of the appeal is the absence of the counsel for the appellant on the date in question. Learned counsel further stated that the reason for the failure to attend court that date are as stated in paragraph 4, 5(a)(b)(c)(d)(e)(f) of the supporting affidavit particularly that the applicant did not know that the matter was struck out hence the delay in presenting the present application to relist. That the circumstances leading to the applicant knowing that the appeal had been struck out are as deposed to in paragraph (6)(a) – (j) of the affidavit in support. That the applicant finally knew that the appeal had been struck out on 15/3/01 from the registry of this court. That the appeal was entered at Kaduna with two different numbers which was a mistake by the court registry.
Learned counsel then submitted that where the reason for nonattendance is lack of knowledge of the date of hearing, the court should be favourably disposed to relisting the appeal relying on Unipetrol (Nig.) Plc. v. Bukar (1994) 5 NWLR (Pt. 344) 360 – 366.
Turning to the counter affidavit, learned counsel submitted that it does not state or show that the applicant was aware of the date for hearing. That it does not therefore contradict the fact that the applicant had no knowledge of the hearing date. That it was only the learned counsel for the applicant that was served with hearing notice regarding that date of hearing but he did not bring it to the notice of the applicant, learned counsel further stated referring to paragraph 5 (c) and 5 (e) of the supporting affidavit. That learned counsel did not also inform the applicant that the appeal had been struck out. Relying on Olowu v. Abolor (1993) 5 NWLR (Pt. 295) 255,271 – 272. Akujinwa v. Nwaonuwa (1998) 13NWLR (Pt. 583) 632 – 653; Mukadam v. Akanbi (2000) 13 NWLR (Pt. 685) 616 at 624 learned counsel submitted that the interest of justice demands that parties be heard on merit as regards their grievances.
On the notice of preliminary objection learned counsel urged the court to discountenance same on the ground that it is misconceived. That the application before the court is not in abuse of process simply because two mutually exclusive prayers are asked for in separate applications before the court.
On the counter affidavit filed on 9/11/01 counsel submitted that the facts therein contained are not relevant to the determination of the present application for relistment of the appeal before the court and finally urged the court to discountenance same and grant the application.
In his reply, learned counsel for the 1st respondent, T. O. S. Gbedeyan, Esq., referred the court to the notice of preliminary objection filed on 9/11/01 and submitted that the application is incompetent, misleading and an abuse of court process.
On abuse of process counsel submitted that there has been a subsisting application before the court filed on 12/3/01 praying for enlargement of time to seek leave to appeal which has not been heard before the present application was filed on 4/4/01. For this counsel relied on Olowokore v. A. N. N. Ltd. (1993) 5 NWLR (Pt. 295) 583.
Counsel then submitted that the court should consider four issues in determining the competence of the application viz:
(i) The reason for the applicant’s failure to appear in court when the case was heard;
(ii) Whether there has been undue delay in making the application so as to prejudice the other party;
(iii) Whether the other party would be prejudiced or embarrassed by an order for a new trial so as to render it inequitable to re-open the case, and;
(iv) Whether the applicant’s case is manifestly unsupportable.
For these learned counsel cited and relied on Doherty v. Doherty (1964) 1 ALLNLR 299.
Counsel then submitted that no reason has been given as to why the counsel for the applicant was not in court on the date the matter was struck out.
That there has been undue delay particularly as the appeal was based on an interlocutory ruling on stay of further proceedings which became spent after the appeal was struck out and the substantive case concluded. That there is an appeal before this court on the final decision in the matter by the lower court – counsel referred to paragraphs 11 and 12 of the counter affidavit. Learned counsel then submitted that parties will be prejudiced by re-opening the appeal when the case had been laid to rest by the lower court.
That even if the appeal is relisted it will still remain incompetent on the ground that no leave of the lower court was sought for and had before filing the notice of appeal against the order of court made on 14/5/97 and not against an earlier order made on 10/12/96 on the subject matter. That there was yet another order made on 7/11/96 also on the subject matter but not appealed against. That the applicant did not appeal against the order refusing them being joined in the proceedings but rather appealed against the order refusing to stay proceedings.
Learned counsel then urged the court to dismiss the application.
By way of a rejoinder learned counsel for the appellant/applicant submitted that the appeal sought to be relisted was against an order refusing substitution and joinder of applicant which order is not interlocutory but final. That the case that had been concluded excluded the applicants who were not parties thereto. That the fact that that case was decided does not bar the applicants from appealing against the earlier orders. Counsel then referred the court to page 116-168 and 146i – K of the record for the notice of appeal filed in the matter. Referring to exhibit FA1 attached to the further affidavit of 5/3/02 counsel submitted that the three appeals were given a single appeal number by the court registry. Counsel then agreed that the appeal was against the decision of the lower court delivered on 7/5/97 referring the court to page 146A – 146B. That the notice of appeal at pages 146i – 146K is competent because some of the grounds are grounds of law alone. He then urged the court to still grant the application. Thereafter the matter was adjourned to today for ruling.
On the preliminary objection on the ground that the present application is an abuse of process it is correct as stated by learned counsel for the respondent/objector that on the 12th day of March, 2000 the applicant filed a motion for enlargement of time within which to appeal against the three rulings delivered by the lower court and that he followed same up by filing the present motion for an order relisting the struck out appeal on the 4th day of April, 2001 despite the fact that the earlier motion still subsists. The question to be decided is whether the existence of the two motions is an abuse of process or better still, whether the second motion was filed in abuse of court process.
In Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188 the Supreme Court held that though the concept of abuse of judicial process is imprecise and involves circumstances and situations of infinite variety and conditions, a common feature of it is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. Karibi-Whyte, J.S.C. put it succinctly as follows:
“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.”
The Supreme Court went further to give the circumstances that will give rise to an abuse of process to include:
(a) Instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues, or a multiplicity of action on the same matter between the same parties even where there exists a right to bring the action;
(b) Instituting different actions between the same parties simultaneously in different courts, even though on different grounds;
(c) Where two similar processes are used in respect of the exercise of the same right for example a cross-appeal and a respondent’s notice.
(d) Where an application for adjournment is sought by a party to an action to bring an application to court for leave to raise issues of fact already decided by the courts below;
(e) Where there is no iota of law supporting a court process or where it is premised on frivolity or recklessness.
Referring to Okorodudu v. Okoromadu (1977) 3 SC 21; Oyegbola v. Esso West Africa Inc. (1960) 1 All NLR 170; Harriman v. Harriman (1989) 5 NWLR (Pt. 119) 6; Anyaduba v. N.R.T.C.C. Ltd (1990) 1NWLR (Pt. 127) 397; Jadesimi v. Okotie-Eboh (1986) 1NWLR (Pt. 16) 264 SC and Alade v. Alemuloke (1988) l NWLR (Pt.69) 207, the Supreme Court went further to state that the abuse of judicial process lies in the multiplicity and number of the exercise of the right, rather than the exercise of the right, per se. That it consists of the intention, purpose or aim of the person exercising the right to harass, irritate and annoy the opponent, and interfere with the administration of justice. That it is the inconveniences and inequities involved in the aims and purposes of the action that is material. From the above position of the law, it is very clear that what is condemnable is not the existence of two motions but the intention, purpose or aim of the person exercising the right in filing them particularly if it is to harass, irritate and annoy the opponent and also interfere with the administration of justice.
Can it be said that the motion under consideration has the aims stated supra?
In the first place it must be noted that the preliminary objection admits that the motion for enlargement of time to appeal filed on 12/3/00 concerns “three different rulings delivered by the lower court” see particulars 1 on the notice of preliminary objection whereas the present motion seeks to relist an appeal which was struck out on 21st May, 1998.
Going through the document or processes filed in this matter particularly exhibit FA1 attached to the further affidavit in support of motion for relisting filed on 15/3/2002, it is very clear that the appeal sought to be relisted concerns only one ruling of the lower court delivered on 7th May, 1997.
That apart, from the facts of the case it is clear that when the motion of 12/3/00 was filed the applicant was not aware that this particular appeal had been struck out – see paragraphs 5(e) – (i) of the affidavit in support. That being the case, it is my opinion that you cannot say that the present motion is in abuse of court process.
The present motion was filed on 4th April, 2001.
It must be emphasised that the motion is to relist an appeal which was struck out by this court. It is trite law that a litigant has a constitutional right of appeal against any decision of a court of law either as of right or by leave of court expect of course a decision of Supreme Court of Nigeria. That being the case it is my considered view that the earlier motion filed on 12/3/00 cannot be said to be in abuse of process since it seeks leave of court by way of extension of time e.t.c. within which to exercise his constitutionally guaranteed right of appeal against the decision of the lower court in the three rulings complained of.
It is therefore my view that it is not enough for counsel to state that the applicant filed two motions which he considers to be mutually exclusive, he must go further to establish the fact that the motions or motion constitutes an abuse of process as known to law, which, in my considered opinion, learned counsel for the objector has failed to do. That being the case it is my view that the application under consideration is not in abuse of court process and I so hold. In the case of Doherty v. Doherty (1964) 1 All NLR 299 the
Supreme Court held that the principles to be considered when dealing with an application to relist an appeal for hearing on the merits include the following:-
(a) The reasons for the applicants failure to appear before the court when the case was heard;
(b) Whether there had been undue delay in making the application so as to prejudice the other party.
(c) Whether the other party would be prejudiced or embarrassed by an order for a new trial so as to render it inequitable to re-open the case; and
(d) Whether the applicant’s case is manifestly insupportable.
In addition to these principles the Supreme Court went on to state as follows:
” …. .It is necessary to emphasis that cases of this nature must be considered on their own peculiar facts.” The question then is: what are the peculiar facts of this case? They include the following; as can be gathered from the record before this court.
On the 13th day of November, 1996 Alhaji Salimonu Alabi Okpekun (for himself and on behalf of Okoko Okpekun Family) filed an application before the lower court praying for an order substituting him for the late Alhaji Raufu Olaiya Bakate as a defendant or in the alternative joining him as a co-defendant in the suit – see page 101 of record. By a ruling to be found at page 105 of the record, the lower court, on 10th December, 1996 refused the application and dismissed same. Contrary to the submission of learned counsel for the 1st respondent Mr. Gbadeyan who has been in the matter all along that there is no appeal against that ruling page 108 of the record of appeal shows clearly that an appeal was duly filed against that ruling. In addition to that appeal an application for stay of proceedings in the matter was filed on 17/1/97 pending the hearing of the appeal against the ruling of 10/12/96 – see page 110 of the record.
On the 18th day of February, 1997 the present applicant, Alhaji Ramani Mohammed Opekun (for himself and on behalf of Okoko Opekun Family and Ruling House) filed an application before the lower court praying for an order to be joined as co-defendant and/or as substitute to the 1st defendant and an order setting aside the ruling of the court dated 10/12/96 – see page 122 of the record. In a ruling delivered on the 7th May, 1997 the learned trial Judge dismissed the application – see page 138 of the record. It is this ruling that forms the basis of the appeal which was struck out by this court vide exhibit FA1 and subject of the application under consideration. Thus it is again not correct as contended by Mr. Gbadeyan that the appeal struck out and sought to be relisted is the one dealing with a refusal to order stay of proceedings pending appeal. At page 141 of the record is the notice of appeal against the ruling of 7/5/97. The applicant followed up the notice of appeal by filing a motion on 14/5/97 for stay of proceedings pending appeal – see page 144 of the record. See also another motion for leave to amend the motion of 14/5/97 etc at page 147 of the record. By a ruling delivered on 14/7/97 the lower court dismissed that application for stay of proceedings – see page 157 of the record, as a result of which learned counsel for the appellant sought leave to appeal vide a motion filed on 21/7/97 see page 161 of the record of appeal.
It is therefore very clear from the record that there are three appeals against three rulings of the lower court viz the ruling of 10/12/96; 7/5/97 and 14/7/97. It follows therefore that since the appeal struck out vide exhibit FA1 is the one on the ruling of 7/5/97 the other two appeals still subsist since there is no evidence to the contrary.
Now from the affidavit in support of the motion, the further affidavit and the counter-affidavit both parties are agreed that the reasons for the striking out of the appeal on 21/5/98 is that the learned counsel for the applicant though served with the hearing notice failed to attend court neither did he take steps to explain his absence in court that day. There is no evidence that the said counsel did bring to the knowledge of the applicant the hearing date of the appeal.
The applicant has deposed to the fact that learned counsel did not do so and that he did not subsequently inform him of the appeal having been struck out. There is no direct and positive evidence to the contrary before this court. It is my considered view that it will not be equitable to visit the sins of learned counsel for the applicant on the applicant personally without proof of the fact that he was personally served with the hearing notice for the hearing of the appeal on the date in question. It is my view that the applicant has sufficiently explained why he was not in court and why he did not know that the appeal was struck out.
Learned counsel for the 1st respondent has argued that the 1st respondent will be embarrassed or prejudiced if the appeal is reopened in that since the appeal which was struck out was that on refusal of stay of proceedings and the matter had consequently proceeded to judgment it would be improper to re-open the appeal.
This has been found to be incorrect from the record. The appeal sought to be relisted has nothing to do with refusal to order stay of proceedings.
On the issue of undue delay it is my view that since the applicant did not know that the appeal had been struck out until the filing of the notice of preliminary objection by learned counsel for the 1st respondent as deposed to in the affidavit in support of the application, the delay in presenting the application under consideration cannot be said to be an undue delay so as to operate against the applicant in view of the facts of the case.
On the issues whether the applicant’s appeal is “manifestly insupportable” as laid down in Doherty v. Doherty supra, I hold the view that it is not possible for the court to so hold in view of the contents of the affidavits before this court. It is therefore my considered opinion that the proper thing under the circumstances is to allow the applicant to be heard on merits for whatever his appeal is worth. In conclusion I hold that the application has merits and is accordingly granted as prayed. It is hereby ordered that the appeal against the ruling of the Kwara State High Court of Justice in suit No. KWS/OM/13/99 delivered on 7th May, 1997 struck out by this court in appeal No. CA/K/147/97 on the 21st day of May, 1998 be and is hereby restored to the cause list of this court to be dealt with accordingly. There shall be no order as to cost.
Application granted as prayed.
Other Citations: (2002)LCN/1120(CA)
