Dominic Akpan & Ors V. Julius Berger Nigeria Plc (2002)

LawGlobal-Hub Lead Judgment Report

ODUYEMI, J.C.A. 

It would appear from the records in this case that, by different applications brought before the District Court of Justice of the Federal Capital Territory, Abuja, some time in March, 2000, by the respondent each against some of its employees, whose contracts of employment the respondent claimed to have terminated, the respondent caused summonses for the recovery of possession in its favour of its premises occupied by the defendants to be issued against the several defendants.

Respondent also claimed that sometime in February, 2000, it had caused notices of its intention to make the application to recover possession of the premises to be served either personally on each defendant or through the bailiff of the court – See pages 1 and 2 of the record.

By an application dated 8th May, 2000, the appellants in this case, as defendants/applicants filed an application before the said Chief District Court seeking the following Orders: (Pages 41 and 42 of record)

(a) An order dismissing the present suit pending before this Honourable Court in its entirety for gross abuse of the process of this Honourable Court.

An order compelling the plaintiff/respondent to pay the sum of twenty five thousand Naira (N25,000.00) to each of the defendants/applicants being the cost of their defending this case.”

The grounds for seeking the reliefs are stated as follows:

“1. The subject-matter of the present suit is being affected by a pending suit before the High Court of Justice, Abuja, with a subsisting order of the High Court of Justice that the defendants should continue to occupy their official quarters pending the determination of the motion on notice which has not yet been heard and determined.

2. The defendants are also seeking for an order from the High Court of Justice in suit No. FCT/HC/CV/423/99 pending before the High Court of Justice to restrain the plaintiff from declaring them redundant.
3. The present action is incompetent for misjoinder of parties and action.
4. It costs each of the defendants the sum of twenty five thousand Naira (N25,000:00) to defend this action.”

The application was supported by an affidavit of 9 paragraphs of which paragraphs 4, 5 and 6 would later require to be quoted in this judgment.

The application was argued before the learned Chief Judge of the Chief District Court. In a reserved ruling, the learned Chief Judge dismissed the application by way of preliminary objection in its entirety.

Dissatisfied with that ruling, appellants appealed to the High Court of the Federal Capital Territory, Abuja, in its appellate jurisdiction.

In the notice of appeal, appellants filed 8 grounds of appeal. By leave of that court appellants filed two additional grounds of appeal.

The appeal was argued before the learned Judge of the appellate High Court (hereinafter called the lower court).

The portion of the brief judgment of the lower court relevant to this appeal, is as follows:-

“It is against this ruling that the appellants have filed the present appeal on 10 separate grounds, a close perusal of which boils down to one and only one issue that the learned Chief District Judge has no jurisdiction to entertain the suit having regard to the preliminary objection they filed on 8/5/2000.

The appellants failing to get what they sought for by the preliminary objection are now seeking that they get it through this appeal which in my opinion lacks merits viewing from the grounds of same as formulated by the learned appellants’ counsel.

It is too early in the day for the preliminary objection to be brought considering the fact that the only process filed by the plaintiffs/respondents is an application for summons for recovery or possession of tenement in March, 2000.

This to them, and rightly too, is following the due process of the law so that they would not be accused of ejecting the appellants unlawfully. The learned Chief District Judge is right when he held that the plaintiff/respondent should “follow the due process laid down by the law and that is why they are here before the court.”

The appellants being dissatisfied with that judgment have again appealed to this court.

Appellants filed 4 grounds of appeal in the notice of appeal filed in the lower court.

By leave of this court appellants –

(a) Were allowed to correct the record of appeal by including thereon exhibits A, B, and C which were formerly omitted from the record.

Exhibit A, being a photocopy of the writ of summons in the High Court action of the F.C.T. Abuja, in respect of which appellants claim that the process in the Chief District Court Abuja, constitutes an abuse of process. That suit is Suit No. FCT/HC/CY/423/99.

Exhibit B is a photostat copy of the motion ex-parte in the said High Court together with the Order of the court thereon;

(b) Filed and served an amended notice of appeal containing 4 additional grounds of appeal; and

(c) Filed and served the appellants’ brief of arguments in this appeal.

By a further application granted at the hearing in this court of this appeal, the applicants again sought and obtained leave of this court to further amend the amended notice of appeal.

These further amendments sought to take account of some of the grounds contained in a notice of preliminary objection filed by the respondent in this appeal against the grounds of appeal of appellant.

In view of the need to determine as a preliminary matter the objections of the respondent to the further amended grounds of appeal, it is necessary that I first quote without the respective particulars thereof, the eight grounds of appeal contained in the further amended notice of appeal. Where necessary, I shall later include in this judgment, any relevant particulars in respect of a ground of appeal.

The further amended grounds of appeal are:”

“First Ground of Appeal

The honourable appellate Judge lacks the jurisdiction to hear and determine the appellants’ appeal against the decision of the Chief District court Judge.

Second Ground of Appeal

The learned appellate High Court Judge erred in law, when after finding and holding that the appellants’ notice of preliminary objection in the Chief District court was a challenge to the jurisdiction of the Chief District Court Judge went further to hold thus: “It is too early in the day for the preliminary objection to be brought considering the fact that they (sic) (the) only process filed by the plaintiff/respondent is an application for summons for recovery of possession of tenement in March, 2000”, when the law allows notice of preliminary objection on Jurisdiction to be brought at any stage of a pending suit.

Third Ground of Appeal

The learned appellate High Court Judge erred in law, to have held that the due process of the law should be followed, i.e. the appellant should not be unlawfully ejected when the issue before the learned appellate Judge was whether the learned Chief District Court Judge lacked the jurisdiction to entertain the respondent’s suit on grounds of abuse of court process.

Fourth Ground of Appeal

The learned appellate High Court Judge erred in law, when he failed to dismiss the suit before the Chief District Court for want of jurisdiction of the Chief District Court Judge to entertain the respondent’s substantive suit before him on ground of abuse of the process of the court.

Fifth Ground of Appeal

The learned appellate High Court Judge erred in law, when he failed to strike out the plaintiff/respondent’s suit before the Chief District Court Judge for want of competency on grounds of misjoinder of parties and actions.

Sixth Ground of Appeal

The learned appellate Judge erred in law, when he failed to hold that the learned Chief District Court Judge was functus officio and was therefore, not competent in law to further try the substantive suit before him.

Seventh Ground of Appeal

The learned appellate Judge erred in law, when he held thus: “The appellants failing to get what they sought for by the preliminary objection are now seeking that they get it through this appeal which in my opinion lack merits… ”

Eighth Ground of Appeal

The learned appellate Judge erred in law, when he failed to resolve the issues as to relief No. (c) sought by the appellants as endorsed on their notice of appeal before the appellate Judge to wit: “An order compelling the plaintiffs to pay the cost of defending the matter at the lower court and prosecuting this appeal to the defendants/ appellants.”

The respondent has objected to each and everyone of the eight grounds of appeal on the ground that not being an issue of jurisdiction they are inconsistent with the provisions of Sections 241 and 242 of the Constitution of the Federal Republic of Nigeria, 1999, which require inter alia, that except a ground of appeal in a civil appeal from the High Court involves question of law alone, leave of the lower court or of this court is required; and that no leave of either court has been sought or obtained in that respect, in this appeal.

Appellants in the appellants’ reply brief concede the objections of respondent on grounds 1 and 6.

In view of that concession, grounds 1 and 6 in the further amended grounds of appeal are hereby, struck out.

I have examined the other grounds of appeal.

With regard to ground 7, the only particular of error in support of the ground is as follows:-

“The appellants’ prayer seeking for twenty-five thousand Naira (N25,000.00) to be paid to each of the appellants at the District Court as highlighted by the learned appellate Judge in his judgment is not lacking in merit as the District Court Judge did find same to be payable in his ruling.”

In my view, the nature of error given in that particular is alien to the judgment against which the ground complains no leave of this court has been sought as required by law. Also, the ground in question is contrary to Order 3 rule 2 of the rules of court.

I have already extracted the relevant portions of the judgment of the lower court.

That judgment says nothing about the issue of costs of N250,000 claimed in prayer (b) of the application before the learned trial Chief District Court – (See p. 41 of the record).

The silence is understandable as I shall soon show in relation to ground 8 of the grounds of appeal.

Ground 8 in the further amended notice of appeal herein complains that relief No. (c) as endorsed in the notice of appeal before the lower Court is for an order compelling the plaintiffs to pay the costs of defending the matter at the lower court (i.e. the Chief District Court) and prosecuting this appeal to the defendants/appellants. (words in parenthesis in sentence by me).

True the relief is claimed in the appeal. Such a claim for relief in my opinion can only be validly claimed if it is based upon an issue put before an appellate court.

An issue must of course be based upon a competent ground of appeal.

In this matter, we have seen that the notice of appeal before the lower court consisted of 8 original grounds and two additional grounds added by leave of the lower court.

I have looked into all ten grounds of appeal. There is none which complained against the refusal of the learned District Court to grant the sum of N25,000 as cost in favour of each of the defendants before the trial Chief District Court. See pages 6 – 9 and pages 37 and 38 of the record of appeal.

It is trite law that, if there is no appeal against a finding in a judgment, that finding is deemed to be correct and it stands.

Accordingly, cost not being an issue in the appeal before the lower court, the lower court was right and fully justified in not dealing with such a non-issue.

Since the matter was not an issue for determination in the lower court and the lower court did not make a pronouncement on it, it cannot be a ground of appeal in this court. A ground of appeal could only arise out of a finding in a judgment.

For these reasons, I find grounds 7 and 8 incompetent. Grounds 7 and 8 are hereby struck out.

In the event, grounds 1, 6, 7 and 8 having been struck out, the Issues Nos. 3 and 5 in the joint appellants’ brief as well as Issue No. 2 relating thereto in the respondent’s brief are hereby struck out.

I am now left in this judgment to resolve Issues Nos. 1, 2 and 4 in the Joint appellants’ brief and Issues 1 and 3 in the respondent’s brief.

Issues 1, 2 and 4 in the appellants’ brief read thus:

“1. Whether the learned appellate Judge was right in law to have dismissed the appellants’ appeal on the ground that the notice of preliminary objection of the appellants at the Chief District court was too early in the day to have been filed.

2. Whether the appellate Judge was right not to have held that the plaintiff/respondent’s suit before the Chief district Court constituted an abuse of court process.
3. Whether the learned appellate High Court Judge was right in law, not to have struck out the respondent’s substantive suit before the learned Chief District court Judge for misjoinder of parties and actions.”

While

Issues 1 and 3 in respondent’s brief read thus:

“1. Whether having regard to the facts and circumstances of this case, the learned appellate High Court Judge was right in affirming the decision of the trial court which dismissed the appellants’ preliminary objection to the action instituted by the respondent against them for the recovery of premises given to them by virtue of their employment which employment had been terminated.

(Grounds 2, 3, 4, & 6).

3. Whether the action before the trial court was incompetent for misjoinder of parties and action. (Ground 5).

In this appeal, I shall deal with the remaining three issues as formulated in joint appellants’ brief which are identical – (except as to wording) with the remaining two issues as formulated by the respondent.

It is also necessary to indicate that in this appeal, I shall treat issues 1 and 2 in the joint appellants’ brief together as they both relate to the preliminary objection on the basis of alleged abuse of process.

However, for convenience, I shall deal first with Issue No. 4. For the appellants, it is argued thus:-

The learned Judge of the lower court was in error to have dismissed the appeal when the issue raised in respect of this contention is not only that the suit is contaminated with a breach of the rule of joinder of parties, but it is in fact a misjoinder of actions because the various defendants/appellants are tenants in respect of premises located in different locations in the Federal Capital Territory and also entered into occupation at different times; and that in such circumstance, the irregularity could not be cured by Order VII rule 3 of the District Court Rules on misjoinder of parties.

For the respondent, it is contended that O. VII rr. 3(1) and (8) of the Federal Capital Territory District Court Rules provides a complete answer in that rule 3(1) provides:-

“All persons may be joined as defendants against whom the right to any relief claimed is alleged to exist, whether jointly, severally or in the alternative”,

while it is submitted that rule 8 of the same Order provides that any misjoinder or non-joinder shall not defeat a claim.

First, I must point out that contrary to the appellants’ complaint that the learned Judge of the lower court ought to have struck out respondent’s claim in the trial District Court for misjoinder, the relief that appellants have claimed all through the course of the proceedings leading to the appeal in this court in respect of the issue of misjoinder has not been for striking out of the action but for dismissal.

The question to ask now is whether it can lie in the mouth of appellants, that there has been a misjoinder of parties in the circumstances of this case.

The records in this appeal show that by separate plaints, the respondents applied to the District Court, Abuja, for the issue of summons for recovery of possession of tenements against its former employees.

The 1st plaint is titled:

Julius Berger Nig. Plc. v. Ozah Anthony and 87 Others; while the other plaint is headed:

Julius Berger Nigeria Plc. v. Okoye Roseline and 27 Others.

When the hearing of one of the summonses numbered CV/25/2000 was about to start, appellants brought up a notice of preliminary objection pursuant to the inherent jurisdiction of the Chief District Court under a motion no. CV/M/27/2000 titled Julius Berger Nigeria Plc. v. Akpan Dominic and others, seeking an order to dismiss the present suit in its entirety for gross-abuse of process of the court.

As indicated earlier in this judgment, Paragraphs 4, 5 and 6 of the affidavit in support of the motion, which I now quote, reads:

“4. That I know as a fact that, the present defendants took out a writ in a representative action against the present plaintiff in the High Court of Justice of the Federal Capital Territory, which action is still pending. The writ of summons is annexed and marked as exhibit A.

5. That I also know it as a fact that, in the said proceeding before the High Court of Justice an interim order was made that the defendants in the present suit should not be ejected pending the determination of the motion on notice. The said interim order is hereby annexed and marked as exhibit B.
6. That it is also a fact within my knowledge that the motion on notice which was served on the present plaintiff, who is a defendant in the suit pending before the High Court of Justice is still pending.”

Exhibit A annexed to the affidavit is photocopy of writ of summons in the Abuja FCT High Court in suit No. FCT/HC/CY/423/99. It is titled:

“BETWEEN SUIT NO. FCT/HC/CV/423/99

1. OKWARA AGWU Suing for themselves and on)
2. INNOCENT OBINNA behalf of all Julius Berger (Nig.) Plc. )
3. CHARLES ONUMARA Workers affected and to be
4. OPARAOCHA LUIZ GARBA Affected by the purported Redundancy
5. OBIAKOR EDWIN dancy as contained in Julius) Plaintiffs
6. EKEH SPEAR Berger (Nig) Plc Circular of June) 28th, 1999.

AND

JULIUS BERGER NIGERIA PLC … Defendant”

while exhibit B is photocopy of the motion ex-parte and order.

The first observation is that on the motion ex-parte, prayer (a) sought for the order of the FCT High Court for leave to the six named persons to represent themselves and an unknown list of persons simply described as “Workers affected and to be affected by the purported redundancy as contained in Julius Berger Nig.) Plc. circular dated June 28th, 1999.”

The next observation is that no copy of that circular is annexed either to that application or to any process in these proceedings.

The third observation is that in the proceedings in this court another list of 214 names headed by Akpan Dominic’s name is being used as the list of defendants/appellants.

The next comment is that if defendants/appellants now argue that there is a misjoinder of parties in these proceedings on appeal because the defendants occupy houses at different locations in Abuja and had their respective allocations at different times – how do they explain the logical retort as to whether the several employees took up appointments at the same time or occupy the same level in the service of Julius Berger or are subject to the same terms and conditions of service?

In my view, if Julius Berger Plc. has no objection to the plaintiffs in the High Court suing in a representative capacity on the ground of mis-joinder of parties – or is it also mis-joinder of actions? The appellants who themselves admit in their affidavit to have instituted an action against Julius Berger in a representative capacity should have no cause to complain if Julius Berger joins them in groups in actions it institutes against them for recovery of its premises.

It is the prayer of appellants that the action be dismissed for misjoinder of parties. The question arises – Is issue of misjoinder or non-joinder of parties one of jurisdiction?

It is clear that even if there is a misjoinder of parties that is not an issue of jurisdiction and can be sorted out in the course of the substantive trial proceedings under, Order VII rules 3(1) and (8). It is not one which attracts a dismissal of the action as consistently prayed for by the appellants. Similarly, the other issue can be dealt with under the rules on consolidation of actions.

I therefore, agree with the lower court that all the complaint of appellants against the judgment of the learned trial District Court which relate to misjoinder cannot be treated as one of jurisdiction.

In the event, I resolve issue 4 in favour of the respondents.

I now deal with Issues 1 and 2 in the appellants’ brief as they both deal with the issue of abuse of process. The same are covered by Issue No.1 in the respondent’s brief.

It is submitted on behalf of appellants thus –

The objection of appellants in the notice of preliminary objection touches on the competency of the trial court to hear and determine the substantive matter on the ground of abuse of court process; that it is an issue which touches upon jurisdiction and, so, can be brought at any time after filing of the suit and so cannot be said to have been brought prematurely. Reliance is placed on Jimoh v. Starco (Nig.) Ltd. (1998) 7 NWLR (Pt. 558) p. 523.

It is also contended that the motive or intention of a party in filing process can be taken account of if it is intended to vex the other party. Reliance is placed on The Vessel “Saint Rowland” & Anor. v. Adefemi Osinloye (1997) 4 NWLR (Pt. 500) 387, (1997) 4 SCNJ 217.

It is also contended that exhibits A and B show that appellants having filed an action in the High Court for a perpetual injunction restraining respondents from forcefully ejecting appellants from their official quarters, there is no ground for the lower court to have found that the learned trial Chief District Judge is right when he held that the plaintiff/respondent filed its suit in the course of following the due process of law.

It is contended that the action of respondents in the District Court was a ploy to deny the High Court of its jurisdiction to determine the question of forceful ejection as endorsed in relief X in the High Court suit – exhibit A; particularly when it is shown from exhibit B that there is a subsisting order restraining the respondent from forcefully ejecting the defendants from their quarters.

It is submitted that the word “or” in the restraining order exhibit should be construed to mean that respondent cannot take any step including but not limited to judicial process to effect forceful ejection of the defendants until exhibit B is set aside and exhibit A i.e. the writ of summons is determined one way or the other.

Reliance is placed on:

(i) The Registered Trustees of the Living Christ Mission and Ors. v. Dr. Osita Aduba & Anor. (2000) 3 NWLR (Pt.647) 14, (2000) 2 SC 1.

(ii) Savannah Bank of Nigeria Lid. v. Staite Industries Overseas Corporation (2001) 1 NWLR (Pt. 693) p. 194.

It is also contended that, respondent has no right in law to institute its action in the Chief District Court after the appellants have instituted theirs at the High Court – a Superior Court.

Reliance is placed on FCDA v. Nwanna (1998) 4 NWLR (Pt. 544) p. 73.

For the respondent, it is submitted thus –

Both the learned trial Chief District Court of the Federal Capital Territory and the appellate lower court were right in their interpretation of the interlocutory injunction granted by the High Court of the Federal Capital Territory that the respondents are only restrained from using unlawful means to effect the ejectment of the appellants from the official quarters of respondent which they occupied by virtue of the contract of employment between the parties; that it does not restrain respondents from using due process of law which is the course respondents are pursuing by the present action;

That the case of respondents can be distinguished from that of Chukwumah v. Shell Petroleum Development Co. of Nigeria Ltd. (1993) 4 NWLR (Pt. 289) p. 512, in which the employer entered and took possession of the ex-employee’s quarters vis-et-armis.

One can only gather from the scanty process in the High Court proceedings made available in these appeals i.e. exhibits A and B that the cause of action of the appellants in the High Court is a circular letter of the defendants in that case, who are the employers of the plaintiffs to the effect that plaintiffs would be affected by a proposed redundancy exercise to be carried out in the defendant’s organisation.

The relief which concerns the subject matter of this appeal is contained in (a) of the writ which I quote thus:

“(a) AN Order of perpetual injunction restraining the defendants, their agents, servants, privies howsoever described from forcefully ejecting the plaintiffs and members of their families from any of their official quarters/residence.”

The writ was duly followed by an ex-parte application to the same court for relief (b) in the application which again, I repeat thus:-

(b) An Order of perpetual injunction restraining the defendants, their agents, servants, privies howsoever described from declaring any of the plaintiffs redundant without first of all following the due process of the law as stipulated in the various Acts and also the Constitution of the Federal Republic of Nigeria, 1999.”

The real contention of the parties in this appeal is that as indicated in the appellants’ brief, appellants seek a construction of the terms of the interlocutory injunction which would restrain respondents from pursuing any process either in law or by self help to recover possession of the respondent’s premises which appellants now occupy by virtue of the contract of employment between the parties.

Respondents contend that the terms of the interlocutory injunction do not prevent respondents from taking due process of law to recover its premises from appellants.

It is clear that the cause of action of the plaintiffs against the respondent in the High Court suit relates to the contract of employment between the respondent and the appellants.

On the other hand, the cause of action of the respondent in this appeal is the recovery of its premises which it claims it is now entitled to having terminated the contract of service of the appellants by virtue of which the appellants were assigned the use of the official quarters.

The relevant legislation to be considered in respect of the subject-matter of this appeal is the Recovery of Premises Act, Cap. 544 of the Laws of the Federation, 1990.

The relevant provision of the Act are sections 3 and 4 which provide thus:

“3. Proceedings under this Act may be brought in any court of competent jurisdiction.

4. Where proceedings under this Act are brought in the High Court and the amount recovered or the value of the rent as ascertained does not exceed an amount which could have been recovered without any set-off or with an admitted set-off in a magistrate’s court the plaintiff shall not be allowed costs in excess of those which he could have recovered had he brought the action in a magistrate’s court provided that when-

(a) the proceedings were in respect of a bana fide claim of right set up by the defendant under section 5 of this Act; or

(b) the court certifies that there was a question of law involved which rendered it advisable for a decision thereon to be made, by the High Court, the court may award costs on the scale applicable to actions brought in the High Court.”

It can be seen that in so far as jurisdiction relating to the cause of action of respondent is concerned, both the District Court as well as the High Court of the Federal Capital Territory have concurrent (not co-ordinate) jurisdiction but that in view of the restriction imposed by s. 4 it might be more convenient for the parties that the action be taken in the District Court and not the High Court.

There is abuse of process where the process of the Court has not been used bana fide and properly – Arubo v. Aiyeiru (1993) 3 NWLR (Pt. 280) p. 126.

Circumstances in which abuse of process can arise include the following:

(a) Instituting a multiplicity of actions on the same subject- matter against the same opponent on the same issues or a multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action.

(b) Instituting different actions between the same party 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 courts below.

(e) Where there is no iota of law supporting a court process or where it is premised on frivolity or recklessness.

The abuse lies in the inconvenience and inequalities involved in the aims and purposes of the action.

(i) Jimoh v. Starco (Nig.) Ltd. (1998) 7 NWLR (Pt. 558) 523 at p. 535.

(ii) Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156.

(iii) Ladesimi v. Okotie-Eboh (1986) 1 NWLR (Pt. 16) 264.

The first question to ask is whether in the circumstance of this appeal, it could be said that the action in the Chief District Court by the respondent and that by the plaintiffs in the High Court are on the same Issues.

In my respectful opinion, the answer to that question is in the negative. I have already indicated in this judgment that the real cause of action of the plaintiffs in the High Court suit relates to their respective contracts of employment.

The relief regarding the restraint against forcible ejection can only be ancilliary.

On the other hand, the cause of action of plaintiff company in the District Court is merely for recovery of possession. There is no claim whatsoever relating to contract of employment, I have also indicated that by the Recovery of Premises Act jurisdiction in both the High Court and the District Court is concurrent not coordinate; also I have indicated that there are benefits to be derived by way of costs as well as convenience by instituting an action in the District Court on the subject-matter of the action in that court.

For these reasons, I am of the humble opinion that the mere institution by the respondent of its action in the District Court should not be seen as a ploy to frustrate the action in the High Court or as constituting mala fides in the respondent.

-See The Registered Trustees of the Living Christ Mission and 3 Ors. v. Dr. Osita Aduba & Anor. (2000) 3 NWLR (Pt. 647) 14, (2000) 2 SCNJ p. 53 at pp. 60 and 61.

In fact, a close look at the suit in the High Court raises no issue of recovery of premises whereas the District Court possesses full jurisdiction to entertain the claim for recovery of premises.

The only remaining question to answer is whether the terms of restraint contained in the interim order of the High Court exhibit B could be construed to include all actions whether by self help or by due process of law.

It is to be observed that what the plaintiffs got in exhibit B is all what they asked for. They asked for interim restraint against unlawful ejection from the quarters they occupy, and they got it. It is the contention of appellants that the addition of the words “or in any other way interferring with their quiet possession” should be construed to include restraint from lawful process.

With great respect, I hold the view that that meaning cannot properly be given to those words in the con of the order. To do so would deny the respondents their constitutional right of access to court to have their civil rights and obligations determined by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality – Section 36 of the Constitution of the Federal Republic of Nigeria, 1999.

It is a cardinal rule of interpretation that before adopting any proposed construction of a passage which is susceptible of more than one meaning, it is important to consider the effects or consequences which would result from it, for such consequences often point out the real meaning of the words.

In the present case, it cannot be presumed that the learned Judge of the Federal High Court intended that the interim order which it granted was to restrain the defendants from pursuing due process of law – (perhaps including a counter-claim to the action of plaintiffs before it) in seeking a determination of their rights; therefore in my humble opinion, a construction which would lead to a restraint on the defendants in the action in the High Court from seeking to exercise their constitutional right of access to court is presumed not to have been intended.

In Re Turner (1846) 9 Q.B. 80, in construing a statute which imposed three months imprisonment and the forfeiture of wages on a servant who “absented himself from the service” before his term of service was completed was understood as confined to cases where there was no lawful excuse for the absence.

Similarly, a statute which made it a felony “to break from prison” would not apply to a prisoner who broke out from the prison while it was on fire, not to recover his liberty but to save his life. 2 Inst. 590.

See also Maxwell on the Interpretation of Statutes – 12th Ed. by P. St. J. Laugan at page 106.

It is my humble opinion that while the words “or in any other way” coming after the words “from unlawfully ejecting” would include any unlawful means of ejection, it would not include ejection by lawful process of court.

In the circumstance, I hold that the learned appellate Judge of the lower court was right to affirm the decision of the learned Chief District Court that, the Chief District Court had jurisdiction to entertain the respondent’s action and that the action did not constitute an abuse of process of court since the claim for the recovery of premises by due process of law is in no way being ventilated by the action of the appellants against the respondent in the earlier High Court action.

Also, this is not a case in which it could be said that the latter case was merely a ploy to deny the court in which the earlier action was filed its jurisdiction to entertain it. The subject-matter of the latter case the subject of this appeal is different from that in the High Court and is not being ventilated in the High Court. The subject-matters, in my opinion, are not the same.

In the event, I resolve Issues 1 and 2 in favour of the respondent.

Having resolved all three issues in this appeal in favour of the respondent, I find no merit in this appeal. The appeal is hereby dismissed.

I order that the case be remitted to the Chief District Court in the Federal Capital Territory for continuation of proceedings, if the proceedings have been stayed.

I award costs of N3,000 in the Chief District Court, N4,000 costs in the lower court and N6,000 costs in this court respectively to the respondent.

---

Other Citations: (2002)LCN/1278(CA)