Bello Ogunyemi & Anor V. Jimoh Oloyede (2008)
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HELEN MORONKEJI OGUNWUMIJU, J.C.A.
This is an appeal against the ruling of Hon. Justice M. A. Agbelusi of the Ido-Ekiti High Court Ekiti State delivered on 7th June 2006.
The facts that led to this appeal are as follows:
The Plaintiff now Respondent filed a writ of summons on 16/3/06 at the High Court and made the following claims:
“1. DECLARATION that the Plaintiff is entitled to Certificate of Customary Right of Occupancy to that property A house (bungalow of 6 rooms) with the boys quarters of 4 rooms and appurtenances attached thereto situate, lying and being at NO.4 Isalu Street Osan-Ekiti in Moba Local Government of Ekiti State.
The house is bounded as follows:
(a) First side Otun/Ora road
(b) Mr. Adeleke
(c) Oke Imole road/Mr. Ogunkayo Adeyemi and
(d) Fourth side Olayemi
- FORFEITURE of Defendants’ right to continue to occupy the 3 rooms granted to them rent free in the above house.
- N100,000.00 for trespass
- N500,000.00 special damages for:
(a) N100,000.00 rent collected by them from Tenants from 2002 till present.
(b) N100,000.00 for tons of cement, several loads of sharp and soft sands and several molded blocks which the Plaintiff parked on the land and was prevented from using.
(c) N200,000.00 for the frustration of the contractual agreement between the Plaintiff and his building contractors.
- Perpetual injunction restraining the Defendants by themselves, their Agents, Servants, Administrators, Heirs Agents and Assigns and whosoever claiming through their from committing further acts of trespass on the said property. ”
On 4/4/2006, the Appellants filed an application for an order striking out suit HID/5/2006 which they claimed was filed as an abuse of the court’s process. The lower court took the argument on the application on 9/5/2006.
The lower court in a reserved and considered ruling held that Suit HID/5/2006 is not an abuse of the court’s process. The Appellants being aggrieved have appealed against that ruling.
On 15/01/2008 when the appeal came up for hearing, both the Respondent and his counsel were not in court to defend the appeal.
Being satisfied that the Respondent was either unwilling or unable to file Respondent’s brief, the motion to hear the appeal in default of Respondent’s brief pursuant to Or.17 r.10 of the Court of Appeal Rules 2007 was heard and granted. The Registrar of Court informed the Court that the Respondent’s counsel was served with notice of this application on 26/10/2007 by the Bailiff of the Chief Magistrate Court Ijero Ekiti one Adelusi Toyin. Subsequently the Respondent’s counsel was served by the Bailiff of this court one Omotosho Kehinde on 10/12/2007 with Hearing Notice of today’s proceedings. Thus this appeal is being considered solely on the Appellants’ brief. At the hearing of the appeal the learned Appellants’ counsel Mr. Toyin Pinheiro argued only issue A distilled from the grounds of appeal.
“ISSUE A
Whether or not the Suit No. HID/5/2006 – Jimoh Oloyede vs. Bello Ogunyemi & Or. is an abuse of court’s process when the said suit was filed during the pendency of Suit No. OT/CC/6/2002 – Ogunyemi Bello & Or VS. Jimoh Oloyede in the Otun-Ekiti Customary Court and which said suits are the same parties and the same subject matter. ”
Counsel set out the facts which led to the application at the lower court. The facts on record show that the Appellants first took action against the Respondent in the Customary Court Otun-Ekiti sometime in January 2002 which claim was amended on 18th June 2002, pursuant to the order of the same court. The amended claim is at page 11 of the record. Judgment was given in favour of the Appellants. The Respondent appealed against the judgment to the Ido-Ekiti High Court in Appeal No. HID/1A/2003 presided over by His Lordship. Honourable Justice M. A. Agbelusi who in his judgment on 19th July 2005 remitted the case back to the Customary Court Otun-Ekiti for retrial.
After Suit OT/CC/6/2002 – Ogunyemi Bello & Or. v. Jimoh Oloyede was remitted back to Otun Customary Court Otun-Ekiti for retrial and during the pendency of the said suit the Respondent filed the present suit No. HID/5/2006 – Jimoh Oloyede v. Bello Ogunyemi & Or. on 16th March 2006 against the Appellants.
Counsel argued that the Writ of Summons and the Statement of Claim filed by the Respondent at the High Court against the Appellants and contained on pages 1-6 of the record constitute duplicity of action and therefore is an abuse of the court’s process. Counsel argued that the said Writ and the Statement of Claim of the Respondent at the lower court and the Amended Claim of the Appellants filed at the Customary Court on page 11 of the record are of the same. He argued that the parties and subject matter are also the same. Appellants’ counsel Mr. Pinheiro argued that the order of Ido-Ekiti High Court remitting the case back to Otun-Ekiti Customary Court for retrial subsists until it is set aside. The order has not been set aside and therefore subsists. He cited Victor Rossek & 2 Ors. v. African Continental Bank Ltd. (1993) 10 SCNJ20 at pages 39-40; Jimoh Akinfolarin & Ors. v. Solomon Oluwole Akinola (1994) 4 S CNJ (Part 1) 30 at 4 6. Counsel submitted that this is quite obviously a case of abuse of court process as two suits are in two different courts at the same time. He cited Robert C. Okafor & Ors. v. the Attorney-General and Commissioner for Justice & Ors (1991) 7 SCNJ (Part II) 345 at 363; Chief Karimu Ajayi Arubo v. Fatai Ayinla Aiyeleru & Ors (1993) 2 SCNJ 90 at page 102-103.
My Lords, the learned trial judge held at Pg. 37 of the printed record –
“The 1st suit is that the Customary Court at Otun while the other is at the High Court at Ido. Therefore other cases were not filed by the same Plaintiff against the Defendant. It was not demonstrated before me that either suit particularly HID/5/2006 was instituted against the Defendant in such a manner as to harass him or irritate him or to annoy him as to interfere with the administration of justice. Therefore I hold that Suit No. HID/5/2006 is not an abuse of court process. The motion fails. The prayer sought is refused and is accordingly dismissed. ”
It is clear from Exhibit A attached to the motion on notice filed, argued and struck out by the court below that the parties in Suit No. OT/CC/6/2002 are Ogunyemi Bello and Ogunyemi Kolawole as Plaintiffs while Oloyede Jimoh was the Defendant. The suit at the Customary Court was for:
(1) Declaration that the Plaintiffs are entitled to the Certificate of Customary Right of Occupancy in respect of the land and building on it at No. K4 Odo Atiba Isalu Compound Osan Ekiti.
(2) An order of forfeiture of the Defendant’s tenancy in the room occupied by him in the above address and an order ejecting the Defendant from the one room he occupies at the said address.
I agree with Appellant’s counsel that the court has a duty to strike out a suit which amounts to abuse of court process. See C.B.N. v. Saidu Ahmed (2001) 5 SCNJ 307; Messrs N. V. Scheep v. The M. V. “S. ARAZ” (2001) 12 SCNJ 24; Amaefule v. The State (1988) 2 NWLR Pt. 75 Pg. 156; M.V. Sheep v. M.V. Arraz (2000) 15 NWLR Pt. 691 Pg. 662 at Pg. 663-5; Ikine v. Chief Edjerode & Ors (2001) 18 NWLR Pt. 747 Pg. 446 at 479.
Where an action is duplicated by same party, the later suit would be incompetent. See ARC v. JDP (2003) 2 SCNJ 28. Abuse of court’s process can be defined as the improper use of the judicial process by a party in litigation to interfere with the effective, efficient and due administration of justice in order to annoy or irritate his opponent. It comprises of the institution of multiplicity of actions on the same subject matter against the same opponent on the same issue and the manner in which the right to litigate is exercised including the inequity and improper aim of such litigation. See Saraki v. Kotoye (1992) 9 NWLR Pt. 204 Pg.156.
In this case in hand, the Defendant at the Customary Court had gone to the High Court to file a cross action raising the added claims of trespass and claims for sums in special damages in excess of the jurisdiction of the Customary Court. The 3rd and 4th legs of the Respondent’s claim are obviously outside the jurisdiction of the Customary Court. The full claims at the High Court have been set out earlier in this judgment. Ordinarily where a cross action is taken in a higher court in which the issues raised are more than the issues raised in the lower court, the higher court in which more issues are raised should hear the case. See Reg. Trustee, Living Christ Mission v. Aduba (2000) 3 NWLR Pt. 647 Pg. 14.
However, in this case, I cannot but agree with the learned trial judge that this is not a case of the same Plaintiff suing the same Defendant in different courts over the same subject matter. Suit No. HID/5/2006 is a cross action instituted at the High Court to the earlier case in the Customary Court which does not amount to abuse of the court’s process. This is not a case of duplication of court’s process by the same party. The Defendant in the Customary Court is now the Plaintiff in the High Court with more heads of claim. As opined earlier, a cross action does not amount to abuse of court’s process.
This appeal is without merit and is hereby dismissed. Costs of N30,000.00 to the Respondent against the Appellants.
Other Citations: (2008)LCN/2685(CA)
