Chief Inye C. Charlie Amachree V. Chief (Prof.) T.J.T. Princewill & Ors. (2007)
LawGlobal-Hub Lead Judgment Report
GARBA, J.C.A.
The appellant on the 26th of November, 2004 filed a writ of summons and statement of claim in suit No. PHC/1992/2003, as plaintiff at the Rivers State High Court, Port Harcourt against the respondents’ herein, as defendants.
After service of the said summons and statement of claim on them, the 1st set of respondents/defendants filed a motion on the 18th of December, 2003 praying the High Court to dismiss the suit for being a gross abuse of court process. In a ruling on the 6th of April, 2004, the High Court granted the prayer and held that the suit was an abuse of its process in view of the suits No. PHC/624/2002, PHC/972/02 and PHC/620100 filed earlier.
This appeal filed on the 21st of May, 2004 is against that decision. The record of appeal was transmitted from the High Court on the 11th of August, 2004 to this court where in the course of proceedings, it was observed that the statement of claim compiled in the record at pages 6-14, was neither dated nor signed. Consequently, a dated and properly signed copy of the said statement of claim was later transmitted from the High Court on the 20th of June, 2005 as part of the record of the appeal.
The notice of appeal contained two (2) grounds of appeal from which the learned appellant’s counsel at page 2 of the appellant’s brief filed on the 7th of October, 2004 formulated a lone issue, which he submitted for determination in the appeal. It is thus: –
“Whether the learned trial Judge was right in law to hold that suit PHC/1999/2003 (sic) constituted an abuse of court process because of suit Nos. PHC/972/02, PHC/620/00 and PHC/(624) 02”.
The 1st and 2nd sets of the respondents’ brief (1st-13th respondents) was filed on the 18th of May, 2005 while the 14th respondent’s brief was filed on the 24th of November, 2005, both with leave of the court.
No brief of argument was filed by or for the 15th respondent. In the two (2) briefs filed for the respondents respectively, the issue raised in the appellant’s brief was adopted by learned counsel.
I agree with learned counsel that a reading of the grounds of appeal would show that the lone issue distilled there from is the pertinent one for decision in the appeal. It is therefore apt and I would proceed to consider the respective submissions by learned counsel. Learned counsel for the appellant opened his submissions with restatement of the discretion of the court to stop an abuse of its process and the judicial definition of what amounts to such an abuse.
He cited cases including C.B.N. v. Ahmed (2001) FWLR (56) 670 @ 689, (2001) 11 NWLR (Pt. 724) 369; N. V. Scheep v. MV “S, Araz” (2000) 82 LRCN 3131 @ 3187, (2000) 15 NWLR (Pt. 691) 622; Minister of Works & Housing v. Tomas (Nig.) Ltd. (2002) FWLR (124) 456 @ 487, (2002) 2 NWLR (Pt. 752) 740; on the points. It was submitted that a party contending that an abuse of the court process exists has the burden of proving –
(1) That an earlier process exists or is pending.
(2) That the earlier process was filed by or on behalf of the plaintiff in the latter suit with knowledge and consent.
(3) That the latter suit has similar parties, relief and subject matter as the earlier process.
Applying the above requirements to the suits relied on by the High Court in its decision, learned counsel referred to the reliefs in paragraph 3xi (a) and (b) of the statement of defence in suit No. PHC/972/02 and argued that none of them is contained in the reliefs sought in the suit No. PHC/1992/03, which are different. It was the further contention of counsel that the respondents as defendants in suit No. PHC/972/02 had conceded in their statement of defence that the suit was struck out but argued that it could only be resuscitated by relisting and not filing a fresh suit. According to counsel, the case of Kassim v. Ebert (1966) All NLR 54; (1966) 1 SCNLR 107 relied on by the respondents only relates to the liberty of a plaintiff to relist a case struck out and so did not say that a new case cannot be filed. He therefore submitted that since the suit was struck out, the latter suit, which seeks clearly different reliefs, cannot be held to be an improper use of the court’s process and that it was wrong in law for the High Court to hold that the appellant’s suit is an abuse of court process.
In respect of suit No. PHC/620/1000, after setting out the reliefs contained in paragraph 3 (iv) of the statement of defence therein, it was submission of learned counsel that apart from the relief in paragraph 3(iv) (b) which was repeated as claim ‘(a)’ in suit No. PHC/1992/03, all other reliefs in the two (2) suits are different. He referred to the judgment of the High Court where the learned trial court held that: –
”The law appears clearly to be that, to be declared to be an abuse of process of court, all the claims or issues in the action must generally be the same as in the other action or actions. Hence, if it contains even one new claim or relief, an action will not be declared to be an abuse of court process.”
It was submitted that the learned trial Judge contrary to the principle of law relied on by him in the case of Adesokan v. Adegorolu (1991) 3 NWLR (Pt.179) 293 failed to find the different claims in the two suits by attempting to distinguish that case. In addition, it was argued that in arriving at his decision that though the appellant was not specifically named in the suit, since it was in a representative capacity for the King Abbi Royal House of which he was a member, then the appellant was a party, the learned trial Judge failed to consider paragraph 3 of the counter affidavit of the appellant the averment which according to counsel was not challenged, was to the effect that appellant was not a pat1y in suit No. PHC/620/2000 either as a party or as having given his consent in writing to be represented therein. Relying on the cases of Attorney-General of Ondo State v. Attorney-General of Ekiti State (2001) FWLR (Pt.79) 1431; (2001) 17 NWLR (Pt. 743)706, Ogoejofo v. Ogoejofo (2001) FWLR (63) 145; (2002) 12 NWLR (Pt. 780) 171 and Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688, counsel said the proper and only conclusion is that the averment remained unchallenged and uncontroverted. It was submitted that it was wrong to hold that appellant was a party to the case in view of the unchallenged averment that the parties in the suit No. PHC/620/00 is different from those in suit No. PHC/1992/03 and so the High Court was wrong to hold that the latter case constitutes an abuse of court process because of the former.
Finally, on suit No. PHC/624/02, it was submitted by learned counsel that the Attorney-General of Rivers State was not a party and that the claims iv and ix in the suit No. PHC/1992/03 are not contained therein. He therefore said that the parties and claims are different in the two suits. Learned counsel argued that though the claim (iv) is dependent on claim (iii), which is in, suit No. PHC/624/02 since the actions of the Amanyanabo while in office may have affected the appellant detrimentally, the claim (iv) is necessary in the action.
Furthermore, it was contended that appellant was not a party in the case having discontinued the action and the respondents had conceded that a notice of discontinuance was filed by him. The effect of filing a notice of discontinuance as stated in the case of Ogunkunle v. Eternal Sacred Order of Cherubim and Seraphim (2001) 88 LRCN 2263 @ 2269, (2001) 12 NWLR (Pt. 727) 359 was set out by counsel who also conceded that such notice without leave of court applies only where the suit is discontinued before the date fixed for hearing. The case of Aghadiuno v. Onubogu (1998) 58 LRCN 3422, (1998) 5 NWLR (Pt. 548) 16 and Order 29, rule 2 of the Rivers State (Civil Procedure) Rules were cited.
Learned counsel then said that there was no evidence to support the finding by the High Court that the notice of discontinuance was filed later than 15 days after service on the plaintiff of the last statement of defence in that suit. According to him, in an application to dismiss a suit, reliance is normally placed on the writ and statement of claim, but not a statement of defence, citing the case of Akindipe v. Commissioner of Police (2000) 78 LRCN 1682 @ 1699, reported as Yusuf v. Akindipe (2000) 8 NWLR (Pt. 669) 376. That an averment in a statement of claim or defence is not evidence which a court can act upon and that the High Court failed to consider the averments in paragraphs 7, 8 and 9 of the counter affidavit which were said not to have been challenged. It was further contended that there was a valid and effective notice of discontinuance in respect of suit No. PHC/624/02, which did not require the Court’s consent.
Lastly, counsel said that if appellant had validly and effectively discontinued the case, he could not be forced by representation to be a party after he had taken deliberate and appropriate steps to opt out as a party.
We were urged by learned counsel to resolve the issue in favour of the appellant allow the appeal, set aside the decision of the High Court and remit the case back to that court for trial before another Judge thereof.
Learned counsel for the 1st and 2nd sets of respondents in their brief mentioned earlier, had at page 5 thereof challenged the copy of the original statement of claim included in the compiled record of appeal on the ground that it was neither dated nor signed. However, as stated at the beginning of this judgment a dated and signed copy of the said statement of claim was later transmitted from the Court below as part of the record of appeal on the 20th of June, 2005 in place of the undated and unsigned one compiled in the record transmitted earlier. Accordingly, that event has taken effective and adequate care of the challenge by the 1st & 2nd respondents’ counsel on the issue.
On the issue for determination, learned counsel had argued that the decision of the Court below is right because the claims in the suits referred to in the ruling are on all fours with those in suit No. PHC/1992103, substantially. He said that it is of no moment that the latter suit was differently described since the important thing is that the substance of the reliefs are the same, relying on the case of Harriman v. Harriman (1989) 5 NWLR (Pt. 119) 6 @ 66. The abuse lying in multiplicity of suits on the same subject matter he further submitted, the suit No PHC/1992103 cannot be allowed to stand and relied on the authority of Adesokan v. Adegorolu (supra) at page 306. Learned counsel said in the resolution of the similarity between the suits, the question to answer is whether there is any new claim found in the latter suit which was not in the earlier ones and that cannot be legally addressed or dealt with. He answered the question in the negative contending that issues do not become new merely because they were increased to four (4) from two (2) but that yardstick is that all of them are built around the same subject matter; that is, the Amanyanabo chieftaincy stool.
On the issue of notice of discontinuance, learned counsel said that Order 29 rule 2 (i) of the Rules of the High Court requires such notice without leave to be filed within 14 days after service of the last statement of defence on a plaintiff. That since the appellant did not do so as required that rule then by rule 3 (i) of the same order, it became necessary to obtain leave in order to effectively discontinue the action. Once again, he submitted that appellant did not obtain the necessary leave and that the letters tendered as exhibits A-D in paragraph 7 of his counter affidavit are not valid and effective means of discontinuing an action.
Furthermore, it was the contention of learned counsel that the appellant did not cease to be a party in all the earlier suits even if he had taken steps to do so, because they are in a representative capacities, which include him. He insisted that the subject matter in all the suits is the same and that appellant did not deny that the case of Adesokan v. Adegorolu (supra) was again cited along with Saraki v. Koloye (1992) 9 NWLR (Pt.264) 156 @ 170 and we were finally urged to dismiss the appeal.
For the 14th respondent, a casual perusal of the brief signed by Mrs. W. D. Kiri, Assistant Director of Civil Litigations, Rivers State Ministry of Justice reveals that it is merely a copy of the brief filed for the 1st and 2nd sets of the respondents except for very minor and negligible difference in form of presentation and the case of African Reinsurance Corporation v. J.D.P Const. (Nig.) Ltd. (2003) 13 NWLR (pt. 838) 609 added therein. Substantially and materially, the two (2) briefs are one and the same, words for words filed for different parties in the appeal. Consequently, do not consider it expedient to merely repeat the submissions made therein in respect of the 14th respondent for the purposes of determination of the appeal. It will suffice to say that the decision on the submissions contained in the brief filed for the 1st and 2nd sets of respondents would apply and be the same in respect of those contained in the brief filed for the 14th respondent since they are one.
Now, the crux of the issue formulated for determination in this appeal revolves around the meaning or definition and application of the now very familiar phrase and principle of “abuse of court process” in judicial proceedings. Abuse of the court process has received several judicial definitions over the years such that its application depends on the peculiar facts and circumstances of the cases in which it arose for determination. A common feature in all the definitions is that the term or phrase is generally applied to proceedings which are wanting in bona fide, frivolous, vexatious, improper use of rules of practice and procedures of the courts with intent to harass or embarrass, intimidate, irritate and/or annoy a party/parties that involves some deliberateness to misuse or pervert the smooth orderly and expeditious hearing and determination of matters as provided in the rules of courts. It can manifest itself in many forms and ways that no hard and fast rule can be laid for application in all cases. So its application depends entirely or at least to a large extent, on the peculiarities of the case in which it arises. In addition to the cases cited by learned counsel on the definition of the phrase, see also Olutinrin v. Agaka (1998) 6 NWLR (Pt.554) 366; F.R.N. v. Abiola (1997) 2 NWLR (Pt.488) 444; Okafor v. Attorney-General, Anambra State (1991) 6 NWLR (Pt.200) 659; Jonpal Ltd. v. Afribank (Nig.) Ltd. (2003) 8 NWLR (Pt.822) 290; N.I.M.B. v. U.B.N. (2004) 12 NWLR (pt. 888) 599; Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156. In particular, this court in the first case of Olutinrin v. Agaka had at page 375 of the report held thus –
“There is said to be an abuse of the process of Court when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent such as instituting a multiplicity of action on the same subject matter against the opponent on the same issue.”
Affirming this position, the Supreme Court, per Karibi-Whyte, JSC, in the case of Attorney-General of Ondo State v. Attorney-General of Ekiti State (2001) 17 NWLR (Pt.743) 706 at page 771 held that it amounts to an abuse of the judicial process for a party to an already pending suit to institute another action to seek the same relief which is the subject-matter of the pending action. See also Doma v.Adamu (1999) 4 NWLR (Pt.598) 311; Benaplasric Ind. Ltd. v. Vasilyev (1999) 10 NWLR (Pt.624) 620; Bendel Feeds & Flour Mills Ltd. v. N.I.M.B. (2000) 5 NWLR (Pt.655) 29; Awofeso v. Oyenuga (1996) 7 NWLR (Pt.460) 360 @ 367 on the position that multiplicity of actions between the same parties and on the same subject matter or issues is an improper use of the judicial processes of the Court and so amount to an abuse thereof. If the various rules of practice and procedure provided for judicious and expeditious dispension of justice were to achieve and attain their reason d’etre or sincere objects and purposes, the position of the courts and so the law cannot be different. Parties cannot and should not be allowed or permitted to toy with rules provided for the smooth administration of justice at their whims to intimidate and harass not only their opponents but also waste the very precious resource and time of the courts by filing multiple cases on the same issues and parties. Consequently, the courts have the necessary inherent power, jurisdiction and are indeed under a legal duty to prevent such an abuse of the process in order to maintain their sanctity, confidence and respect. See Arubo v. Aiyeleru (1993) 3 NWLR (Pt.280) 126; Olawore v. Olanrewaju (1998) 1 NWLR (Pt.534) 436; The Vessel “Saint Roland” v. Osinloye (1997) 4 NWLR (Pt. 500) 387.
It should be noted however that since the abuse involves or lies in the improper use of the Court’s process to file multiple actions in one or more Courts, the parties as well as the subject-matter, claims or issues in the earlier or previous suits must be the same or substantially so with a latter suit in order for the latter to amount to an abuse of such process. Therefore where either the patties or/and the claims, subject matter or issues are different in the suits, then one cannot lightly and properly be said to amount to an abuse of H court process in relation to the others. This is the position of the law. Kotoye v. Saraki (1991) 8 NWLR (Pt.211) 638; Ikine v. Edjerode (2002) FWLR (1992) 1775, (2001) 18 NWLR (Pt. 745) 446; Agwasim v. Ojichie (2004) 4 SC (Pt. 11) 160 @ 164-5, (2004) 10 NWLR (Pt.882) 613; Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156.
I now turn to the cases used and relied on by the court below to arrive at the conclusion that the case No PHC/1992/03 was an abuse of its processes. I intend to consider them in the order they were argued in the appellant’s brief of argument.
The first of them is suit No. PHC/972/02. The writ taken out in respect of this suit, dated 3rd June, 2002 at the Registry of the court below, has the following endorsement as the particulars of the claim therein: –
The plaintiffs’ claim against the defendants jointly and severally is for: –
(i) A declaration that the 3rd defendant having installed himself as Amanyanabo of Kalabari with force and arms contrary to Kalabari custom ought not to be recognized by the Government of the Rivers State under the Rivers State Chieftaincy Edict.
(ii) Perpetual injunction restraining the Rivers State Government from recognizing the 3rd defendant as the Amanyanabo of Kalabari under the Chieftaincy Edict of the Rivers State.”
The above claims were dated 30th May, 2002 and the appellant’s name was on the writ as the 2nd plaintiff for themselves and as representing the Abbi Royal House, the kingmakers of the Kalabari Kingdom. The defendants to the claims were the Governor of Rivers State, Attorney-General of Rivers State and the 1st respondent in this appeal 5)
The writ taken out in respect of suit No. PHC/1992/03, which was dated 26th November, 2003, has the following as the claims endorsed thereon: –
(i) “A declaration that the 1st defendant having not been elected/selected by the majority of the Chiefs of the Abbi Royal House, the Kingmakers of the Amanyanabo of Kalabari as a King-elect cannot be installed as the Amanyanabo of Kalabari.
(ii) A declaration that the 2nd to 7th defendants who do not constitute up to one-fifth of the Chiefs of Abbi Royal House cannot validly elect/select the 1st defendant as King-elect for installation as Amanyanabo of Kalabari without the knowledge and consent of the majority of the Chiefs of Abbi Royal House.
(iii) A declaration that the purported installation of the 1st defendant as the Amanyanabo of Kalabari at Buguma on Saturday, 23rd March, 2002 is unlawful, illegal null and void and of no effect whatsoever since it is not in accord with native law and custom, and is in violation of court orders of injunction.
(iv) A declaration that all acts and things done or purported to be done by the 1st defendant as the Amanyanabo of Kaiabari are null and void and of no effect whatsoever.
(v) Perpetual Injunction restraining the 1st defendant from parading himself as the Amanyanabo of Kalabari.
(vi) Perpetual Injunction restraining the 1st set of defendants from parading the 1st defendant as the Amanyanabo of Kalabari
(vii) Perpetual Injunction restraining the 2nd set of defendants from recognising or fraternizing with the 1st defendant as the Amanyanabo of Kalabari.
(viii) Perpetual Injunction restraining the 1st and 2nd sets of defendants from opening the King Abbi Memorial Hall and King Amachree Hall.
(ix) An order setting aside the purported recognition illegally accorded the 1st defendant by the 14th defendant.
(x) Perpetual Injunction restraining the 15th defendant from paying to the 1st defendant or his nominee as the Amanyanabo of Kalabari any money or moneys standing to the credit of Buguma Community or the Kalabari Kingdom.
Dated this 26th day of Nov, 2003”
The above claims were made jointly and severally and repeated in paragraph 47 of the statement of claim dated 26th November, 2003. The 1st respondent was the 1st defendant among others as the 1st and 2nd sets of defendants. The Government of Rivers State and the Shell Petroleum Development of Nigeria Ltd. (hereinafter to be named SPDCN) were named as the 3rd set of defendants. Only the 2nd set of the defendants were described as representing themselves and the Buguma Council of Chiefs in the suit.
Even though the learned trial Judge did not consider the details of the two suits specifically (that is, suit No. PHC/972/02 and suit No. PHC/1092/03, which was exhibit 1) in comparison, he came to the following conclusion in the judgment at page 74 of the record of appeal: –
“Short of reproducing in extenso the claims in the remaining three suits, namely suit Nos. PHC/624102 (exhibit 3); PHC/972/02 (exhibit 1), and PHC/620/00 (exhibit 4), a careful examination reveals that the parties in all three actions are for practical purposes the same. This is because, although the names of the plaintiffs and defendants on record are not consistent, there is consistency by representation of the main contending parties.
The issues are also similar in all three suits, the only main difference being that the claims in suit No. PHC/972/02 is short and precise, while in PHC/624/02 they are extensive. What is important however is that the claims in all three suits are quite similar to the claims in the present action, as disclosed in paragraph 47 of the statement of claim?”
Looking at the substance of the claims in suit No. PHC/972/02 and those in suit No. PHC/1992/03, I have no hesitation in agreeing with the learned trial Judge that the claims are similar and only different in the form they were couched by the different counsel that prepared them. The pith of the reliefs in the two claims centre and arose from the kingship of the Amanyanabo of Kalabari Kingdom in respect of which the appellant felt aggrieved about the appointment, installation and recognition of the 1st respondent to that position. Every other claim itemized in the suits revolves around that position and only ancillary and dependant on it. However the parties in the two suits are clearly different with the addition of Shell Petroleum Development Company of Nigeria, which was sued severally, and not as a representative of any of the parties directly involved in the dispute about the kingship Shell Petroleum Development Company of Nigeria has no interest whatsoever as to the claims for the kingship between the Royal Houses of the Kalabari kingdom. Consequently, though the claim against Shell Petroleum Development Company of Nigeria in suit No. PHC/1992/03 is ancillary to the dispute or claim on the kingship; it is different from the claims in suit No. PHC/972/02 as far as the appellant’s interest was concerned. To this extent like the suit No. PHC/1121/01 found by the learned trial Judge in the judgment not to be on all fours with suit No. PHC/1992/03, the suit is not an abuse of the court’s process in relation to No. PHC/972/02.
It may be recalled that the law requires that both the claims and the parties must be the same in the two suits before one could be held to be an abuse of the court’s process in relation to the other. Shell Petroleum Development Company of Nigeria was not a party in suit No. PHC/972/02 and the claims in it are therefore not the same or even substantially so, as in suit No. PHCI/1992/03. Accordingly, one cannot be and is not an abuse of the court process in relation to the other relied on.
The 2nd suit held by the lower Court in its decision is suit No. PHC/620/00 admitted in evidence as exhibit 4. The writ of summons taken out in respect of this suit had as the endorsement thereon, the following claims: –
‘The plaintiffs’ claim against the defendants is for:
(i) A declaration that the Chiefs of the Abbi House presided over by the 1st plaintiff are the Kingmakers of the King Amachree Dynasty who are entitled to select and appoint the Amanyanabo of Kalabari.
(ii) A declaration that the 1st defendant Chief (Prof.) T.J.T. Princewill having not been selected and appointed by the plaintiffs, the Kingmakers of the Kalabari Kingdom cannot be installed as the Amanyanabo of Kalabari.
(iii) Perpetual Injunction restraining the 1st defendant from presenting himself for installation as the Amanyanabo of Kalabari without the knowledge and consent of the plaintiffs.
(iv) Perpetual Injunction restraining the defendants by themselves, their servants and agents from installing the 1st defendant or any other person whatsoever as the Amanyanabo of Kalabari without the knowledge and consent of the plaintiffs.
(v) Perpetual Injunction restraining the defendants by themselves, their servants and agents from selecting, or appointing any person whatsoever as the Chairman or Regent of the Abbi House, Karibo Group of House, Buguma Council of Chiefs and the Kalabari National Assembly (See Kabiri) while the 1st plaintiff is still the Chairman of the said Chief Councils.
Dated at Port Harcourt this 24th day of March, 2000.” The appellant was not named as one of the plaintiffs suing for themselves and as representing the King Abbi Royal House, the Kingmakers of the Kalabari Kingdom. The 1st, 2nd and 3rd respondents with two (2) others were named as defendants in the suit.
The learned trial Judge acknowledged that the appellant was not named as a party in the suit when he said in his ruling at page 756 of the record of appeal thus: –
“Again, of the three suits, it is only in PHC/620/00 (exhibit 4) that the plaintiff/respondent is not a named party.”
However, he held that since the action by the plaintiffs was for themselves and as representing the Abbi Royal House and Kingmakers of Kalabari Kingdom to which the appellant belongs, he is an unnamed party to the action. This is the correct position of the law, which is that in representative actions both the named, and unnamed parties being properly represented by others named in the writ are all parties to the actions. See Atanda & Ors v. Olanrewaju & Ors (1988) 10-11 SCNJ 11 @ 24, (1988) 4 NWLR (Pt. 89) 394; Adesokan v. Adegorolu (supra) cited by counsel.
Accordingly, the appellant, though not named in the writ, is a party to the suit since it was a representative action for the royal house to which he belongs and is a member. But would for that reason alone, suit No. PHC/1992/03 is an abuse of court process in relation to the earlier representative action? I would rather not think so because it cannot be correct. To start with, the parties like in the suit No. PHC/972/02, are not substantially the same because the 2nd and 3rd sets of defendants as well as the Shell Development Petroleum Company of Nigeria in suit No. PHC/1992/03 is not on the earlier suiting No. PHC/620/00. Similarly, the claims in the two suits are different materially and are in no way the same. The source or origin from which the claims arose may be the same but the reliefs sought against the different set of defendants are separate and distinct in the two suit; the principle of abuse of court’s process on ground of multiplicity of action in respect of the two suits, the requirements for the proper application of the principle, that is, claims and parties to be generally the same, have not been shown to exist between the two suits. The latter suit is not one, which was merely constituted differently from the earlier since there are different claims and parties in the two suits. The claims in suit No. PHC/1992/03 may include the reliefs claimed in suit No. PHC/620/00, but it contains more, different and new ones against separate parties. For that reason, suit No. PHC/1992/03, I agree with the learned counsel for the appellant, did not constitute an abuse of the lower court’s process in relation to the suit No. PHC/620/00.
Furthermore, the decision in the case of Adesokan v. Adegorolu (supra) is good authority for the principle of law that a representative action such as suit No. PHC/620/00 in which the appellant was not named in the writ, cannot be relied on to declare the personal action by him in suit No. PHC/1992/03, an abuse of the court process, since it contains new claims against different parties not merely in form but substance.
In the result, the lower court was therefore wrong to have ruled that suit No. PHC/1992/03 was an abuse of its process in relation to suit No. PHC/620/00.
The last of the suits relied on by the lower court is No. PHC/624/02 admitted as exhibit 3. The writ taken out in the suit dated 4th April, 2002 contains claims on the endorsements as follows: –
The plaintiffs claim against the defendants jointly and severally is for:
(i) A declaration that the 1st defendant having not been elected/selected by the plaintiffs, the Kingmakers of the Amanyanabo of Kalabari as a king-elect, cannot be installed as the Amanyanabo of Kalabari.
(ii) A declaration that the 2nd to 7th defendants who do not constitute up to one-fifth of the Chiefs of Abbi Royal House cannot validly elect/select the 1st defendant as king-elect for installation as the Amanyanabo of Kalabari, without the knowledge and participation of the plaintiffs.
(iii) A declaration that the purported installation of the 1st defendant aa (sic) the Amanyanabo of Kalabari at Buguma on Saturday, 23rd March, 2002, is null and void and of no effect since it is not in accord with native law and custom.
(iv) Perpetual injunction restraining the 1st defendant from parading himself as the Amanyanabo of Kalabari.
(v) Perpetual injunction restraining the 1st set of defendants from parading the 1st defendant as the Amanyanabo of Kalabari.
(vi) Perpetual injunction restraining the 2nd set of defendants from recognising or fraternizing with the 1st defendant as the Amanyanabo of Kalabari.
(vii) Perpetual injunction restraining the 2nd set of defendants from presenting the 1st defendant to the Kalabari National Assembly (See Kabiri) as Amanyanabo of Kalabari.
(viii) A declaration that the 8th and 9th defendants have ceased to be co-chairmen of the Buguma Council of Chiefs as the reason for their appointment has ceased to exist.
(ix) An order that the keys of the King Amachree Hall and the King Abbi Memorial Hall be deposited with the Registrar of High Court pending the determination of this case.
(x) Perpetual injunction restraining the 1st and 2nd sets of defendants from opening the Abbi Memorial Hall and the King Amachree Hall.
(xi) Perpetual injunction (sic) restraining the 3rd set of defendants from paying to the 1st defendant or his nominee as the Amanyanabo of Kalabari any money or monies standing to the credit of Buguma Community or the Kalabari Kingdom.”
The appellant was named as the 2nd plaintiffs suing for themselves and as representing the Abbi Royal House, Kingmakers of the Kalabari Kingdom. The 1st, 2nd sets of the respondents and the Shell Petroleum Development Company of Nigeria were named as the defendants to the suit. This is the suit in respect of which the appellant was said to have filed a notice of discontinuance. In the determination of the validity of notice of discontinuance, the Learned trial Judge referred to and relied on Order 29 rule 2 of the Rules of this court and the case of M. V Sheep v. M. V “S, Araz” (supra) and held that the notice of discontinuance filed by the appellant was not valid because it was filed outside the period of 14 days provided for in the rules of court. In particular, he relied on the paragraph 3 (viii) of respondents’ statement of defence that the notice of discontinuance was filed over six (6) months after filing and service of the last statement of defence in the case on the appellant. In the affidavit in support of the motion to dismiss the suit, the respondents had in paragraph 3 raised the issue set out in paragraph 3 of the statement of defence. In paragraph 4 they relied on Court processes filed by the appellant among other plaintiffs in the case.
The respondents did not however state the date on which the last statement of defence in the case was served on the appellant in either their affidavit in support of the motion to dismiss or the statement of defence. On his part in the counter affidavit filed in respect of the motion to dismiss the suit, the appellant averred in paragraphs 7, 8 and 9 thereof as follows: –
- That I was a co-plaintiff in suit No. PHC/624/2002 but debriefed out counsel by letter dated 28/1/03 and re-emphasized it by letter dated 4/3/03. By letter dated 18/3/03 and 1/4/03 I informed the Chief Registrar and the Learned Trial Judge respectively of my decision to be withdrawn from the suit. The letters are exhibits A-D herein.
- That I was not served any processes in the matter since I debriefed my counsel and it is not true that pleadings have been closed.
- That the only case I have against the defendants is this suit and it is therefore not an abuse of this court process.”
These averments were not challenged by the respondents whose paragraphs 3 (viii) of statement of defence were clearly controverted thereby on oath by the appellant. The pleadings in the statement of defence were mere bear assertions that were not made on oath and cannot stand in the way of averments sworn to on oath in an affidavit, which constitute legal evidence in proof of what was contained therein. The averments by the appellant that from the dates of the exhibits C and D attached to the counter affidavit, he was not served with any processes in the matter and that pleadings were not closed, remained unchallenged and uncontroverted. If the respondents had wanted or intended to dispute that position, they were under a duty to have filed a reply or response by way of a further affidavit. There was no such affidavit by them from the record before us and so they are deemed to have accepted and admitted the averments of the appellants on the state of the pleadings in the case. In the circumstances, the learned trial Judge was bound to accept and treat the said averments as true and correct. As far as that is concerned, the law is trite now. See Globe Fishing industries Ltd. v. Coker (1990) 11 SCNJ, (1990) 7 NWLR (Pt. 162) 265; Uzondu v. Uzondu (1997) 9 NWLR (Pt.521) 466; Olori Motors & Co. Ltd. v. U.B.N. Ltd. (1998) 6 NWLR (Pt.554) 493 @ 506-7; NAB. v. Abdullahi (2000) 6 NWLR (Pt.662) 549 @ 556.
Since it is not disputed that the appellant had in fact filed a notice of discontinuance in respect of suit No.PHC/624/02 and the averment that pleading had not been closed by or at the time the notice was filed was not challenged and controverted the only option left is to hold that it was properly and effectively filed within the time provided for in Order 29 rule 2 of the rules of the court below.
The position cannot be different because even the affidavit filed in support of the motion to dismiss did not assert that pleadings had been closed in the matter. The affidavit was filed for and on behalf of only the 1st set of defendants in the case as contained in paragraph 1 thereof. There are other defendants, for whom the affidavit could not have spoken and so did not speak as far as the filing of their own statement of defence was concerned. Consequently, the 1st set of defendants through their affidavit were in no position to assert that the appellant had been served with the last statement of defence in the case for the application of Order 29 rule 2 to arise. They can only speak for themselves and not for others whose authority they do not have to represent and speak for.
Now the law is that the appellant had the right and discretion to withdraw from or discontinue the action in which he was a plaintiff without leave of court if it was done within the 14 days period in Order 29 rule 2. It is further the law that such withdrawal or discontinuance takes effect and automatically terminate the action the moment the notice to that effect was properly filed by the appellant/plaintiff in the Registry of the Court. See Odje v. Ovien (1992) 7 NWLR (Pt.253) 309, Nwawuba v. Enemuo (1988) 5 SCNJ 154, (1988) 2 NWLR (Pt. 78) 581.
With the admitted filing of the notice of discontinuance by the appellant in the lower court, the suit No. PHC/624/02 was unconditionally and automatically terminated and ceased from that date to be on the lower court’s list of pending matters or causes. It did not need or require any order from that court to effectively and practically end the suit in relation to the appellant as a named plaintiff. Consequently, the appellant can no longer be said to have instituted that suit for himself as he had done in suit No. PHC/1992/03. Personally for him, that suit was abandoned by him from the date of his notice of discontinuance and so dead. It cannot be revived or resurrected from the grave where he dumped it by the lower court and be used and relied on to defeat or frustrate his suit No. PHC/1992/03 on the pre of applying the principle of preventing an abuse of its process in respect of multiplicity of cases. The uncontroverted averment of the appellant in paragraph 9 of his affidavit (as set out above) is that suit No PHC/1992/03 is the only case he has pending against the defendants in the suit and is therefore not an abuse of the lower court’s process. This is unassailable. I accept same and so find as required of the court by law.
In the final result, from all have said in this judgment, my decision is that the appeal succeeds and I allow it because the suit No. PHC/1992/03 has not creditably been shown and proved to be an abuse of the court; within the established premises of that principle, in relation to the suits Nos. PHC/972/02, PHC/620/00 and PHC/624/02 relied on by the lower court in its decision. Accordingly the ruling of the lower court delivered on the 6th of April, 2004 dismissing the appellant’s suit No. PHC/1992/03 for being an abuse of its process is hereby set aside.
The case is remitted back to the lower court for trial before another Judge thereof. Costs assessed at N30, 000.00 under the Court of Appeal Rules 2007; Practice Directions, are awarded in favour of the appellant.
Other Citations: (2007)LCN/2514(CA)
