Ette Akpan Ette V. Akpan Amos Harry Edoho & Anor (2008)
LawGlobal-Hub Lead Judgment Report
JEAN OMOKRI, JCA
This is an appeal against the Ruling of Hon. Justice Andrew Okon, sitting at High Court, NO.2, Eket, Akwa Ibom State, in Suit No. HEK/16/2002 delivered on 9/2/06.
The appellant, who was the plaintiff at the Court below, instituted proceedings against the respondents, at the High Court NO. 2, Eket, claiming in paragraph 20(a) of the Amended Statement of Claim at page 24 of the record as follows:
“(a) A declaration that he is entitled to the Statutory Right of Occupancy over piece or parcel of land situate along Udo Umo Street, Afaha Eket, Eket, which land is well known to the parties and as is shown in the plaintiff’s father property Survey Plan of No. JEJ/AK/663 of 2nd January, 1990.
(b) An order of perpetual injunction restraining the defendants from committing trespass on the land by along any manner of work thereon.
(c) General damages of N300, 000.00 for trespass on the land and causing waste to it.”
Hearing in the case commenced on 30/3/04 when the plaintiff testified as PW1. The respondents, who were the defendants at the court of trial, did not file a statement of defence. However, on the 16/2/04, the respondents filed a motion on notice for:
“1. AN ORDER striking out this suit for want of jurisdiction.
- AND for any such further or other order(s) as this Honourable Court may deem fit to make in the circumstances.”
The motion is supported by a 9 paragraph affidavit to which 5 exhibits marked A, B, C, D and E were attached. Exhibit “A” is the record of the Customary Court’s proceedings. Before the trial court, the respondents contended that the subject matter of the parties in Exhibit “A” is the same as that of Suit No. HEK/16/2002, in the trial High Court. The respondents contended that it is an abuse of the court process for the appellant to institute an action at the District Court and at the court of trial involving the same parties and the same subject matter.
The appellant’s counsel, at the trial court, Mr. B. F. Etuk, relied on the appellant’s counter-affidavit of 10 paragraph and submitted that the Eket District Court had no jurisdiction to hear and determine the suit pending before it because the subject matter of the suit are pieces and parcel of land located within Afaha Eket group of villages in Eket Urban area. He relied on section 39(1)(a) Land Use Act.
The trial Judge after considering the supporting affidavit, Exhibits “A” – “E”, the counter-affidavit and the submissions of counsel before it, ruled on 9/2/06 that the suit filed by the appellant, Suit No. HEK/16/2002 is an abuse of the court process. The trial Judge struck out the suit with N1, 000.00 only to the respondents. See pages 152 – 165 of the record.
Dissatisfied with the trial court’s Ruling, the appellant on the 19/4/2006 appealed to this court on 5 grounds. From the 5 grounds the appellant distilled only two issues for determination in the appellant’s brief dated 7/2/07 and filed the same day but deemed filed on 18/6/07 by this Court.
The issues are:
“(1) Issue NO.1 (Grounds 1, 4 and 5) was (sic) trial court justified to hold that Suit No. HEK/16/2002 amounted to an abuse of process of court?
(2) Issue NO.2 (Grounds 2 and 3) Does the trial Court not have jurisdiction to hear the suit”
I observed that the respondents did not file any brief in this appeal. After going through the record of the proceedings in this appeal I found that on 18/6/07 the respondents filed an application for extension of time within which the respondents can file their respondents’ briefs and serve same on the appellant. The application which was supported with an 8 paragraph affidavit was not accompanied with any proposed respondents’ brief. Curiously, the respondents did not even move the application in this court.
On the other hand, the appellant filed an application dated 31/5/07 and filed the same day in this court praying for:
“An order to set down and hear the appeal on the appellant’s brief alone in default of respondents’ brief.”
That application was granted by this court on 18/6/07. The appeal was heard on the appellant’s brief alone.
On Issue NO.1, the appellant contended that the various parcels of land comprised in Suit No. HEK/16/2002 are located in Afaha-Eket, in Eket Urban area and going by the provisions of section 39 of the Land Use Act, it is only the High Court that has an exclusive jurisdiction to hear and determine t he suit. He relied on Adisa v. Onyiwola & Ors. (2000) 10 NWLR (Pt. 674) 116. It was also contended that the trial court did not rebuke the respondents for their tardiness in that the Notice of Appeal filed in the registry of the District Court ended there and it has not been entered in the Court as at the 9th day of February, 2006, when the High Court delivered its Ruling a period of over 5 years ago.
The appellant further contended that Suit No. HEK/16/2002 raised different issues although it involved the same respondents, therefore, it could not have amounted to an abuse of judicial process. The appellant in Suit No. HEK/16/2002 prayed for an order of declaration that he was entitled to statutory rights of occupancy over the land in dispute, injunction and damages for trespass. He pointed out that the District Court clearly has no jurisdiction to hear the appellant’s suit because the action before the District Court was for it to share various lands involved in Suit Nos. HEK/16/2002 and HEK/136/2002 to the respondents. He concluded that it is only where a judicial process has not been properly and honestly used by a party that he will be guilty of abuse of judicial process. He relied on Govt. of Kwara State v. Lawal (2006) All FWLR (Pt. 336) 313 at 328.
The appellant had rose in his counter-affidavit, the issue of the respondents not being members of his family and contended that where the membership of a person in a family is questioned, it is the High Court that has the jurisdiction to hear and determine it. He relied on Adeyemi v. Opeyori (1976) 9 SC 31 and Akereja v. Oloba (1986) 2 NWLR (Pt. 22) 257.
Relying on Okafor V. A-G, Anambra State & Ors. (1991) 7 SCNJ (Pt. 11) 345, the appellant contended that there was no abuse of court process because the Suit No. HEK/16/2002 was not lacking in bona fides and neither was it frivolous, vexatious or oppressive. Moreover, that the suit at the District Court and the suit at the High Court are not the same.
On Issue No.2, it was submitted that the trial court was wrong to decline jurisdiction to hear and determine the suit before it. He argued that by section 39(1) and (2) of the Land Use Act, it is the High Court that has jurisdiction to hear and determine disputes touching on a claim for declaration to a statutory right of occupancy. He pointed out that the reasoning of the lower court that something ought to be done by way of withdrawing the suit from the Customary Court or transferring it to the High Court cannot be supported.
It was also the appellant’s contention that the trial court should not have limited itself to comparing the names of the land(s), it ought to have considered the reliefs claimed as per the writ of summons as they are not the same with respect to the respective reliefs sought by the appellant and respondents. Relying on the case of Ubaka & Sons Ltd. V. Ezekwem & Co. (2001) 1 FWLR (Pt. 1) 77, the appellant argued that abuse of court process emanates from filing of the similar processes on the same matter for the same relief to the annoyance of the other party, but that is not the case in this appeal.
To begin with an abuse of process would occur in one or more of the following situations:
“(a) Where the parties, subject matter and the issue in the previous and the later suits are the same.
(b) Where different actions based on the same facts between the same parties are filed in different or the same court simultaneously in respect of the same right and subject matter.
(c) Where a party litigates again on the same issue which has already been litigated upon between him and the same person by facts on which a decision has already been reached.
(d) Where the proceedings is wanting in bona fide, or is frivolous, vexatious, oppressive or amounts to abuse of legal procedure or improper legal process.”
See Ukachukwu V. Uba (2005) 18 NWLR (Pt. 956) 1 at 63 and 65 and U. B. N. Plc. V. Edamdkwe (2004) 4 NWLR (Pt. 863) 221.
Abuse of court process is a term generally applied to proceedings which are wanting in bona fide, in the sense that they are brought mainly to annoy, irritate or harass the opponent, or are calculated to impede the administration of justice. The abuse lies in the inconvenience and inequalities appurtenant to the aim and purpose of the action. The term also connotes that the powers of the court must be used bona fide and properly and it must not be abused. See P. V. C. Ltd. V. Lawal (2005) 3 NWLR (Pt. 911) 121 at 147; African Reinsurance Corp. V. J. D. P. Construction (Nig.) Ltd. (2003) 13 NWLR (Pt. 838) 609 and Uniform Ind. Ltd. V. Oceanic Bank International (Nig.) Ltd. (2005) 3 NWLR (Pt. 911) 83 at 99.
The main issue before the trial court was whether there were two suits pending in two different courts simultaneously, namely the suit at Eket District Court on appeal, i.e., Suit No. 113/96. See Exhibit A at pages 81 – 88 and Exhibit “D” at pages 114 – 115 on the one hand and Suit No. HEK/16/2002 on the other.
It appears that the appellant misconstrued the nature and purport of the proceedings filed by the respondents. The issue before the court was not a matter of whether the District Court had jurisdiction or not to hear and determine the issue before it. It was also not for the purpose of finding whose fault it was for the delay in hearing the appeal at the District court speedily. It was also not the question of the dilatory attitude of the respondents in the prosecution of the appeal before the Eket District Court. The above were not the issue before the court below.
The real issue before the court of trial was to determine whether there was a pending suit at Eket District Court on the same subject matter as in the present suit so as to constitute an abuse of court process. See page 159 of the record. The respondents in paragraphs 6 and 7 of their supporting affidavit and Exhibits “D” and “E” attached thereto contended that there is a similar subject matter between the parties at the Eket District Court of Appeal. The appellant did not deny that there is a pending appeal at the District Court. Rather he averred in paragraph 6 of his counter-affidavit that the respondents took no action since filing the notice of appeal about three years ago and in paragraph 7, they averred that the District Court had no jurisdiction to hear the matter.
It is significant that the appellant did not deny that there is an appeal still pending at the District Court, Eket, and this fact goes to support the contention of the respondents. Further, the appellant’s averment in paragraph 6 of his counter-affidavit only goes to further confirm that indeed there is an appeal pending.
The trial court went through the affidavits and exhibits tendered before it with a fine tooth comb and found that the parties in Suit No. 113/96 before the District Court are the same with the parties in Suit No. HEK/16/2002. The court also found that the subject matter, namely, the pieces and parcel of land at Afaha Eket are the same in both suits. At page 161 of the record, the trial court found that the District Court ordered the sharing of the parcels of land. The records show that the appellant’s late father was the defendant in the said Exhibit “A”. Exhibit “B” shows that he applied, after the death of his father, for the judgment in the said Exhibit “A” to be set aside and for him to be substituted as one of the defendants in the said Exhibit “A” in place of his late father. The District Court on 5/12/2001 granted the prayers and set aside the earlier consent judgment and ordered for the re-hearing of the case. See Exhibit” E” attached tot he supporting affidavit. At page 3 of Exhibit “E”, the District Court adjourned the case to 14/1/02 for hearing. At page 4 of Exhibit “E” show that there was an appeal against the District Court ruling. The conditions of appeal were imposed and were perfected on 7/12/01 within the 30 days fixed. At page 162 of the record, the trial court found that the parties and the subject matter were the same.
Having carefully perused the record of proceedings, I also find that the parties and the subject matter are the same. Therefore, it is clear that the two suits were filed simultaneously. It is an abuse of court process for different actions or suits based on the same facts between the same parties is filed in different courts or the same court simultaneously, in respect of the same right and subject matter. See Abubakar V. B. O. & A. P. Ltd. (2007) 18 NWLR (Pt. 1066) 319 at 377 – 378; Jimoh V. Starco (Nig.) Ltd. (1998) 7 NWLR (Pt. 558.
Furthermore, the appellant being aware of Suit No. 113/96 and having participated actively in the case where there was a serious dispute over the distribution or sharing of their deceased grandfather’s pieces and parcels of land, instituted another suit before the High Court seeking for a declaration that he be given the statutory right of occupancy in respect of the same pieces and parcel of land. The action or attitude of the present appellant compels the inference that he was acting malafide. Apparently, Suit No. HEK/16/2002 was filed to overreach the respondents and to foreclose their case still pending before the District Court. This is clearly an improper use of the process and procedure of the court by a litigant. The concept of abuse of court or judicial process denotes a perversion of the system by the use of a lawful procedure for the attainment of unlawful results. See Saraki V. Kotoye (1992) 9 NWLR (Pt 264) 156 and Oguejiofor V. Oguejiofor (2002) 12 NWLR (Pt. 780) 171. A court of law which is as well a court of justice will always prevent the improper use of its machinery and will not allow it to be used as a means of vexatious and oppressive behaviour in the process of litigation.
Although the appellant was right when he argued that the District Court has no jurisdiction to hear and determine a case involving declaration of title to land situated in an urban area his remedy was not to file another suit knowing very well that there is a suit pending before the District Court. The trial court at page 163 of the record held thus:
“The plaintiff’s learned counsel has forcefully argued and I agree with him that it had since been settled that it is High Court that has jurisdiction to hear and determine suits relating to title of lands in urban areas. But the way to go about it is not for a party to go to High Court while the same subject matter is pending at the District Court. Efforts ought to have been made to bring the suit on the same matter at the District Court to an end before instituting another suit on the same subject matter at the High Court. This could have been done by withdrawing the District Court suit from that court or by applying that it be transferred from that court to the High Court. In respect of the appeal, it could have been discontinued.”
I, therefore, find that the trial court was right to hold that the subsequent Suit No. HEK/16/2002 is an abuse of the court process. There is no merit whatsoever in this appeal. The two issues raised by the appellant fail.
Accordingly, this appeal is hereby dismissed. The Ruling of Okon, J., in Suit No. HEK/16/2002 is hereby affirmed.
I make no order as to costs. Appeal dismissed.
Other Citations: (2008)LCN/3071(CA)
