George T. Ugese & Ors V. Atsinafe Siki & Anor (2007)
LawGlobal-Hub Lead Judgment Report
NDUKWE-ANYANWU, J.C.A.
This is an appeal against the ruling of the High Court of Benue State sitting in Vandeikya. These are the facts of this case as proffered by the respondent and adopted by the appellants as well.
“(7a) That sometimes in 1989, the first respondent sued the father and husband of the first and third appellants respectively at the High Court of Benue State, holden at Katsina-Ala claiming Plot No. 2619 in suit number KHC/22/89, the same as in suit number VFC/5/98. The first respondent was non-suited in that case.
(b) That about 4 years later, in 1993, the first respondent again filed the same action before the same court in suit No. KHC/60/93 claiming the same reliefs. That suit was struck out after the first respondent absented himself from court on the 18/5/94.
(c) Three years later (1997) the first respondent again filed motion number KHC/106m/97 to relist suit number KHC/60/93 earlier struck out. That motion was remitted to the Chief Judge of Benue State who re-assigned it to the High Court of Benue State holden at Gboko which heard the motion and dismissed same.
(d) Without appealing the ruling of the High Court, holden at Gboko, dated 30/1/98 the first respondent shopped for another forum and filed suit number VHC/5/98 in February, 1998 before the Vandeikya High Court claiming the same reliefs contained in suit number KFC/60/93.
It was on these premises that the appellants sought to have the case struck out or dismissed for being abusive of the judicial process and being in violation of the due process of law.
After hearing arguments from both parties through their respective counsels, (except second respondent who was served but not represented) the learned trial Judge, J. T. Tur, dismissed the preliminary objection holding inter alia that the suit was proper before the Court. See pages 35 to 44 of the printed records.
Aggrieved by the said ruling, the appellants with leave of the Court of Appeal granted on the 18th day of November, 1998 vide motion Number CA/J/217m/98 filed 5 grounds of appeal challenging the interlocutory decision of the Court below.”
The appellants formulated 6 issues for determination, as follows
(1) Whether having failed to appeal against the ruling of the High Court of Benue State holden at Gboko barring him from having his case heard on the merit, the first respondent is entitled to file the same suit and have it heard by the same High Court of Benue State without regard to its earlier decision.
(2) Whether the High Court of Benue State was functus officio after dismissing motion number KHC/106m/97 to have again ruled that the first respondent was entitled to have his case heard on the merit.
(3) Whether the dismissal of the first respondent’s earlier application to relist suit number KHC/60/93 amounted to estoppel against him to canvass anything to the contrary and against the court thereby striping it of jurisdiction to entertain the suit.
(4) Whether the issue before the court below was one pertaining to the right of the first respondent to have his case heard on the merit as the court construed it OR the propriety of suit number YHC/5/98 vis-‘E0-vis the earlier decision of the same court in motion number KHC/106m/97.
(5) Whether having elected to apply to relist suit number KHC/60/93 vide motion number KHC/106m/97 instead of filing a fresh suit after the former was struck out, the first respondent is bound by his election to file a fresh suit and canvass a right already waived after the court held that he was not entitled to have his case heard on the merit.
(6) Whether having regard to the totality of the evidence before the court, the circumstances of this case and the conduct of the first respondent, the filing of suit number YHC/5/98 amounted to an abuse of the process of court and a violation of the due process of law.
The appellants’ counsel chose to argue issues 1, 2, and 4 together and issues 3 and 6 together as well. The major issue that can be distilled from issues 1, 2 and 4 is what is the consequence of the dismissal of motion No. KHC/106m/97? The trial Judge dismissed the plaintiff/1st respondent’s application to relist suit No. KHC/60/93 in his ruling. The appellants submit that having dismissed this motion that the 1st respondent has no other avenue open to him than to appeal against the said ruling. The appellants cited Justina Paul v. Emmanuel Ozokpo (1995) 4 SCNJ 119 at 130.
“Where there is a valid and subsisting decision by a court of competent jurisdiction against which there is no appeal, legal efficacy must be given it. It ought not to be ignored.”
The appellants also submitted that the rulings which form the basis of this appeal were delivered by the same High Court of Benue State sitting in different locations.
Also that the Benue State High Court became functus officio after the dismissal of Motion No. KHC/106m/97 to canvass any contrary position as the Court below purported to do. See Sanusi v. Ayoola J.S.C. (1992) SCNJ (Pt. II) p. 142 at 154; (1992) 9 NWLR (Pt.265) 275; Ekenele v. Eke (1925) 6 WLR 18; Akinyede v. The Appraiser (1971) 1 All NLR p. 162.
The appellants argued further that the trial court cannot assume the status of an appellate court over its own decision except there is a statutory power to do so. Finally that Tur, J., lacked jurisdiction to entertain the suit No. YHC/5/98 and that his ruling in YHC/22m/98 amounted to approbating and reprobating. See the cases of Chief Uku v. Okumagba (1974) 1 All NLR 475; A.-G., of Kaduna State v. Hassan (1985) 2 NWLR (Pt.8) p. 483; Agidigbi v. Agidigbi (1996) 6 SCNJ p. 105 at 119; (1996) 6 NWLR (Pt.454) 300.
In his submission, 1st respondent counsel argued that the Benue State High Court was right when it held that even though the 1st respondent did not appeal against the ruling dismissing his application to relist suit No. KHC/60/93 that 1st respondent was right to file a fresh suit claiming the same or additional reliefs and or joining the 2nd respondent.
He submits further that the reliefs contained in the 1st respondent’s application to relist suit No. KHC/60/90 were different from the reliefs sought in the said motion itself. Accordingly the dismissal of the motion to relist dismissed all the reliefs contained in that motion. However, the main suit and the reliefs sought were not dismissed and not heard on the merits.
The 1st respondent in furtherance of his arguments stated that as far as the motion to relist is concerned he cannot seek to relist it again as it has been dismissed. The only option left to him is to appeal against that ruling dismissing motion No. KHC/106m/97.
The plaintiff cannot bring a fresh application to another court to relist that same suit, this would then amount to abuse of court process. However, since suit No. KHC/60/93 had only been struck out the claims therein had not been determined. The 1st respondent could file a fresh suit to canvass the claims contained. See the case of Alhaji Sulaiman Mohammed & 1 Or. v. Lasisi Sanusi Olawunmi & Ors. (1993) 5 SCNJ 126 at 136; (1993) 4 NWLR (Pt.287) 254.
The 1st respondent in conclusion stated that the Benue State High Court sitting at Vandeikya was perfectly right in its view that the dismissal of the application to relist suit No. KHC/60/93 by Hwande J., is not a bar to the 1st respondent filing a fresh suit claiming the same or different reliefs and also joining the Katsina-Ala Local Government as 4th defendant. Also that a fresh suit will only become a bar to subsequent proceedings if the right of the parties are heard and determined on the merit by a competent court of record.
Finally the plaintiff/1st respondent’s counsel urged the court to hold that the filing of suit No. VHC/5/98 which is the subject matter of this appeal is not an abuse of court process and cited the case of Ishmeal Amaefule & Ors. v. The State (1988) 4 SCNJ p. 69 at 78; (1998) 2 NWLR (Pt.75) 156.
The history of this case must be set out again for better understanding of this appeal. In 1989, the 1st respondent sued the father and husband of the 1st and 3rd appellants respectively at the High Court of Benue State, holden at Katsina-Ala claiming Plot 2619 in suit No. KHC/22/89. The 1st respondent was non-suited in that case.
“A non-suit at common law was nothing more than a declaration by the court that the plaintiff had made default in appearing at the trial to prosecute his suit.”
See the case of Agbaje v. Salu (2003) 29 WRN p. 55. The non-suit decided nothing as regards the matter in dispute but merely got rid of the pending action, leaving the plaintiff at liberty to bring de novo and this he did in the same court.
In Alhaji Sulaiman Mohammed & Or v. Lasisi Sanusi Olawunmi & Ors. (1993) 4 NWLR (Pt. 287) p. 254, the Supreme Court applied the same principle, in the case of Oloriode & Ors. v. Oyebi & Ors. (1984) 1 SCNLR 390 where the Supreme Court held that a suit struck out for non-discloser of reasonable cause of action or for its lack of jurisdiction cannot sustain a plea of estoppel in subsequent action. See also Kossen Nig. Ltd. & Anor. v. Savannah Bank of Nig. Ltd. (1995) 9 NWLR (Pt. 420) p. 439 at 457; Chief Sampson Okon Ito & Ors. v. Chief Okon Udo Ekpe & Ors. (2000) 3 NWLR (Pt. 650) p. 678 at 699.
See the case of Okpala v. Ibeme (1989) 2 NWLR (Pt.102) p. 208 at 213 where the Supreme Court held per Karibi- Whyte, JSC as he then was:
“An order of non-suit decides nothing as regards the matter in dispute, but merely gets rid of the pending action leaving the plaintiff at liberty to begin de novo either in the same or a subsequent suit, subject only to his payment of costs to be taxed against him on the non-suit.”
Nnaemeka-Agu, JSC at pg. 224, paras. A-B has this to say in the same case above
“The court has discretion in the matter, but it is one which has to be exercised cautiously, judicially and judiciously. The overriding consideration at all times appears to be that considering the cases of the parties, justice demands that the plaintiff should be given a choice to institute another action on the same issues and should not be shut out for good and that the defendants is not entitled to judgment. A non-suit is a final decision which decides that none of the parties has won but preserves the plaintiff’s right of another action on the same subject matter and the same issue.”
The plaintiff/1st respondent filed suit No. KHC/60/93 four years later which was struck out as the plaintiff absented himself from court.
Being still desirous of prosecuting this suit he filed a motion No. KHC/106m/97, 3 years later to relist suit No. KHC/60/93. This motion was moved and was dismissed.
The plaintiff/1st respondent being still desirous of pursuing his claims filed a fresh action suit No. VHC/S/98 claiming the same reliefs but added Katsina-Ala Local Government as the 4th defendant.
What is the effect of this motion No. KHC/106m/97 that was dismissed on the substantive suit No. KHC/60/93. When a motion is heard and dismissed on the merit, it can not be relisted or heard again. It is a subsisting ruling that must be given the force of law. See the case of Justine Paul v. Emmanuel Ozokpo (1995) 4 SCNJ p. 119 at 130, Adio, JSC (of blessed memory) held that:
“The judgment of the Magistrate Court in the matter is a judgment of a court of competent jurisdiction. There was no appeal against it. It is subsisting against the appellant, cannot be ignored, and legal effect has to be given to it.”
Motion No. KHC/106m/97 was filed to relist suit No. KHC/60/93.
This motion was dismissed. This means that the merits of that motion were canvassed and the trial Judge dismissed it. This motion can never be resurrected in the High Court. The trial Judge became functus officio and cannot deal with anything concerning that motion.
The only remedy left as regards that motion is only an appeal against the ruling of the trial court. The dismissed motion ceased to be pending in the High Court.
However, suit No. KHC/60/93 is still pending. See the case of Kassim v. Hermann Ebert (1966) NSCC p. 44; (1966) 1 SCNLR 107 where Ademola, CJN as he then was referred to the case of Re Clagelt’s Estate, Fordham v. Clagelt (1882) 20 Ch. D. pg. 637 where Lord Jessel M.R. held:
“A cause is said to be pending in a Court of Justice when any proceedings can be taken in it. That is the test. If you can take any proceeding it is pending.”
With the foregoing, it is crystal clear that the suit No. KHC/60/93 is still pending in court. It is from this suit that the appeal from motion No. KHC/106m/97 will be premised. Therefore for all intents and purposes suit No. KHC/60/93 is still pending in court. Assuming for questions of an academic exercise, the plaintiff/respondent appeals against the ruling dismissing the motion No. KHC/106m/97. If the Court of Appeal allows the respondent to relist, it is this suit No. KHC/60/93, that would be relisted.
Therefore, this suit No. KHC/60/93 is still a pending suit which cannot be relisted except by the order of the appellate court. If suit No. KHC/60/93 is still pending what is the status of suit No. VHC/5/98. See the case Okorodudu & Anor. v. Okoromadu & Or. (1977) NSCC p. 105 at 106; (1977) 3 SC. 21.
The Supreme Court held inter alia that:
“It is an abuse of judicial process of the court to file the new suit against the defendants on the same subject matter as the first suit which was then pending in the court.”
From the foregoing I hold that the suit No. VHC/5/98 is an abuse of court process. Suit No. KHC/60/93 is still pending therefore no other suit can be instituted until suit No. KHC/60/93 is finally disposed of. The ruling in KHC/106m/97 emanating from it is still subsisting as a valid ruling of a competent court. The plaintiff/1st respondent may appeal against it to relist KHC/60/93 of the appellate court finds for him.
“… abuse of court process in regard to multiple actions between the same parties on the same subject matter may arise when a party improperly uses judicial process to the irritation, annoyance and harassment of his opponent not only in respect of the same subject matter but also in respect of the same issues in the other action or actions.”
See the case of Ikine v. Edjerode (2001) 18 NWLR (Pt. 745) p. 446 at 488. See also Okafor v. A.-G., Anambra State (1991) 6 NWLR (Pt. 200) p. 659; and Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) p. 156.
It should be noted that when suit No. KHC/60/97 was struck out, the plaintiff had two options open to him. The plaintiff may file a fresh suit or file a motion to relist the suit struck out.
The plaintiff opted for the second option i.e. bringing a motion to relist. This motion was subsequently dismissed. The plaintiff has taken an option he has to follow to the end. The only avenue left for him is an appeal against the ruling dismissing the motion to relist.
“A final decision is one that cannot be varied, re-opened or set aside by the court that delivered it or any other court of co-ordinate jurisdiction although it may be subject to an appeal to a court of higher jurisdiction. A judicial decision is final when it leaves nothing to be judicially determined or ascertained thereafter in order to render it effective and capable of execution and is absolute, complete, and certain, and when it is not lawfully subject to subsequent decision, review or modification by the tribunal that pronounced it.”
Onyebuchi v. INEC (2002) 8 NWLR (Pt. 769) p. 417 at 438-439
The ruling in motion No. KHC/106m/97 with the foregoing can only be appealed against. The plaintiff/1st respondent is no longer at liberty to elect on which way to pursue its action.
Issues Nos. 1, 2, and 4 are therefore resolved in favour of the appellants.
Issue Three and Six
The appellants argued that since the respondent chose to apply to relist suit No. KHC/60/93 vide motion No. KHC/106m/97 it amounted to a bar against the 1st respondent after its dismissal to turn around to seek succour by filing a fresh suit. To allow the 1st respondent to bring a fresh suit will amount to approbating and reprobating by the same court and referred to the case of Agidingbi v. Agidingbi (1996) 6 SCNJ p. 105 at 119; (1996) 6 NWLR (Pt.454) 300.
The refusal of the application to relist by Hwande, J., in such circumstances is meant to protect the other party from being harassed by an indolent adversary. See Edoka v. Obi (1989) 3 TWLR 504 at 509.
The learned counsel to the appellants argued further that the 1st respondent had lost his right to have his case heard on the merit as it is a gross abuse of the process of court having in mind the circumstances of this case.
Counsel submits further that the 1st respondent lost his right to have his case heard on the merit after the ruling on motion No. KHC/106m/97.
Filing of suit No. VHC/S/98 was to prevent the cause of justice and as such an abuse of court process. The 1st respondent then went forum shopping to the High Court, Vandeikya after Katsina-Ala and Gboko High Court. The appellants’ counsel agrees that despite the fact that the 1st respondent may have a grouse against the appellants, he has now activated the machinery of the law as an instrument of harassment against them. See Saraki v. Kotoye (1992) 11/ 12 SCNJ 26 at 48; (1992) 9 NWLR (Pt.264) 156; Okorodudu v. Okoromadu (1977) 3 SC 21; Oyegbola v. Esso W.A. (1966) 1 ANLR 170.
Learned appellants’ counsel finally urged the court to resolve these issues in favour of the appellants and strike out the suit for being abusive of the process of court.
In answer to grounds 3 and 6 the 1st respondent’s counsel summarized and related it to whether or not the principle of election is applicable to the facts and circumstances of the case, the subject matter of this appeal, see Mohammed & Ors. v. Husseini & 1 Or. (1998) 11-12 SCNJ 136 at 165; (1998) 14 NWLR (Pt.584) 108 at 140 where Mohammed JSC held that –
“An appeal is not an alternative remedy to any proceeding in a court of law, it is a right given by statute and rule, it does not depend on the bounty of a Judge.”
1st respondent’s counsel argued that suit No. KHC/60/93 was struck out; the only option opened to the 1st respondent was to apply for same to be relisted.
He argued further that the 1st respondent couldn’t have filed a fresh suit when KHC/60/93 was still pending, so he filed a motion to relist it. Having been dismissed the 1st respondent then filed a fresh suit to argue his case on merit.
Learned counsel for the 1st respondent urged the court to hold that the Benue State High Court was right in dismissing the appellants’ preliminary objection. 1st respondent could file a fresh suit claiming the same or additional reliefs/or joining the 2nd respondent.
Counsel urged the court to confirm the decision of the Benue State High Court and dismiss appellants’ appeal.
All the points canvassed under this issue had be touched in the first issue, however it would be revisited to crystalise them.
The 1st respondent had a right to choose which way forward when suit No. KHC/60/93 was struck out. The respondent elected to file a motion to relist rather than filing a fresh suit. This is the stage that his election ended. Having elected to relist, he has taken a path he must follow to the end. See Mohammed v. Husseini (supra).
After the motion No. KHC/106m/97 was struck out, the 1st respondent only option left was to appeal against that ruling dismissing the motion to relist.
The 1st respondent lost the opportunity of filing a fresh suit when he elected to file a motion to relist suit No. KHC/60/93.
It should be noted that I have earlier on held that suit No. KHC/60/93 even though struck out from the general cause list of the High Court is still pending until it is finally disposed off on appeal. It can always be placed on the general cause list again by an order of an appellate court.
It therefore means that since suit No. KHC/60/93 is still pending filing a fresh suit as the 1st respondent purported to do is abusive of court process.
See Saraki v. Kotoye (supra) at 188 where it was held –
“The concept of abuse of judicial process is imprecise.
It involves circumstances and situation of infinite variety and conditions. But a common feature of it is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice.”
Karibi- Wbyte J.S. C. as he then was held that –
“It is recognized that the abuse of the process may be in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the Issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice.”
The 1st respondent counsel had made a heavy weather about the respondent being desirous of his suit being heard on merit. The court is not denying that the 1st respondent has a right to have his claims heard on merit. What the court is saying is that he has to follow due process.
The 1st respondent would not be allowed to abuse the process of court. The court has a duty to protect itself from abuse. See Josiah Cornelius Ltd. & 3 Ors. v. Chief Cornelius Ezenwa (1996) 1 RMLR (Pt. 2) p. 42; (1996) 4 NWLR (Pt.443) 391; Okafor v. A.-G., Anambra State (1991) 7 SCNJ (Pt.11) 129-345; (1991) 6 NWLR (Pt.200) 659.
The 1st respondent is entitled to have his case heard on merit but not by filing a fresh suit No. VHC/5/98, whilst suit No. KHC/60/93 is still pending. The ruling of the court dismissing his motion to relist is still subsisting. The 1st respondent’s case may be heard on merit if he appeals the ruling dismissing his motion and it is in the positive.
That is the only remedy left for the 1st respondent to hear his case on the merit.
The trial Judge was wrong in holding that VHC/5/98 was not an abuse of court process.
The filing of suit No. VHC/5/98 is an improper use of the court process to the irritation and annoyance of the appellant. I therefore hold that issues 3 and 6 are resolved in favour of the appellants.
Issue 5
This issue is not different from the previous issues, the points canvassed hereunder has been canvassed in issues 1, 2, 3, 4, and 6.
The 1st respondent is entitled to have his case heard on the merit. However the appellants argued that the 1st respondent had two alternative reliefs open to him and once one is invoked, whatever the result may be the other lapses and becomes otiose see Agidigbi v. Agidigbi (supra).
I therefore hold that the 1st respondent elected to file a motion to relist. When that was dismissed, the alternative to file a fresh suit was no longer available.
The only remedy the 1st respondent has is to file an appeal against the order of dismissal to relist suit No. KHC/60/93.
In totality I hold that the appellants appeal succeeds in all its entirety. The ruling of Tur, J., of the High Court of Benue State is hereby set aside.
Cost is assessed at N 10,000.00 in favour of the appellants against the 1st respondent.
Other Citations: (2007)LCN/2228(CA)
