Group Captain E. E. Ibok (Rtd.) V. H. R. H. Etubom Eyo E. Eyo Honesty Ii (2006)
LawGlobal-Hub Lead Judgment Report
C. M. CHUKWUMA-ENEH. J.C.A.
This appeal is against the ruling of the High Court of Calabar Judicial Division (CORAM: Edem J.) delivered on 8/4/2004 dismissing the preliminary objection of the applicant (appellant) wherefore the applicant has challenged the trial court’s jurisdiction to hear an application to relist Suit No. HC/230/2000, which earlier had been dismissed upon the applicant’s (appellant’s) application as an abuse of court process.
Aggrieved by the decision the applicant (appellant) has appealed the decision by filing a notice of appeal containing 3 grounds of appeal. In the appellant’s brief of argument filed in the matter he has formulated 2 issues for determination and I set them as follows:
“(a) Whether the order of dismissal made by the trial Judge after hearing both parties was a final order and therefore on merit.
(b) Whether the trial court was functus officio in respect of the said after dismissing the suit and whether the court can entertain an application to relist the suit.”
The respondent has adopted the 2 issues for determination in this appeal as formulated by the appellant.
In the court below the respondent (as plaintiff) instituted an action Suit No. HC/230/2000 against the appellant (as defendant). Thereupon the appellant filed an application to dismiss the suit as an abuse of court process as there was already pending suit No.C/320/98 in the High Court of Calabar alleged to be by the same parties, on the same issues and subject matter as in the Suit No. HC/230/2000. The application to dismiss the Suit No. HC/230/2000 came up for hearing and the respondent apparently did not oppose the relief sought and so, without much ado the court below granted the prayer and dismissed the Suit NO.HC/230/2000 as an abuse of court process. The respondent having made a u-turn as it were, has brought another application to relist the Suit NO.HC/230/2000 and the appellant on this occasion filed a preliminary objection challenging the trial court’s jurisdiction to entertain the application to relist the Suit No. HC/230/2000 dismissed as an abuse of court process. The preliminary objection was dismissed on the ground that the ruling dismissing the said suit being an abuse of court process was not a final decision decided on the merits.
The appellant has argued in their brief of argument that the order of dismissing Suit No.HC/230/2000 as an abuse of court process has been made after hearing the parties, that is, on the merits and that the trial court has fallen into grave error in holding that in the application to admit it has not disposed of the rights of parties in the matter i.e. Suit No.HC/230/2000. In this regard they submit that there is nothing outstanding as between the parties after the order of dismissal has made with respect to the Suit No. HC/230/2000 which otherwise has been terminated by the said order. See: Akinsanya vs. U.B.A. LTD (1986) 4 NWLR (Pt. 35) 273 at 296; Omonuwa vs. Oshodin & Anor (1985) 2 SC 1 at 27 (1985) 2 NWLR (pt. 10) 924. They have also relied on Okon vs. Ekanem (2002) 15 NWLR (pt. 789) 106 at 112 – 113 to submit that the said order being a competent one and made within jurisdiction can only be set aside by an appellate court on appeal.
On Issue 2: The appellant submits that it is wrong for the trial court that dismissed a suit as Suit No. HC/230/2000 as constituting an abuse of court process to turn round to hear an application as the instant one to relist the same when it has become functus officio. See: Jimoh vs. Starco Nig. Ltd. (1998) 7 WLR (Pt. 558) at 523 at 525, H.C.M. vs. Iyoha (2001) 46 WLR p. 103 at 109, Anyaegbunam vs. A-G Anambra State (2001) 6 NWLR (Pt. 710) 532 at 535 and Jonason Triangle Ltd. vs. C. M. & Partners Ltd. (1999) 1 NWLR (Pt. 588) 555 at 559. He also has observed that the position contemplated as per Order 14 Rules 1 & 6 and Order 37 Rules 8 & 9 of Cross River State High Court (Civil Procedure) Rules 1987 again adverted to by the trial court in its ruling have to be distinguished from the position in the instant case to which the said Rules do not apply as the said cited rules deal with cases of default of appearance.
The court is urged to allow the appeal and set aside the said ruling and to strike the application by the respondent to relist the Suit No.HC/230/2000, which has been dismissed as an abuse of court process.
The respondent in his brief of argument has pointed out that an order or judgment does not need to be final to be on the merit and that a counter affidavit has been filed in the matter indicating their initial opposition to the application to dismiss Suit No. HC/230/2000 as an abuse of court process and that what transpired at the hearing of the said application cannot be suggestive of hearing on the merit, see: Akuneziri vs. Okenwa (2001) FWLR (Pt. 35) 604 at 610; (2000) 15 NWLR (Pt.691) 526. He has attempted to distinguish final from interlocutory decisions and in regard to which the respondent has referred to and relied on Ajuta II vs. Ngene (2002) FWLR (Pt. 88) 998; Bozson vs. Altrincham U.D.C (1903) 1 KB 547, Odutola vs. Oderinde (2004) 12 ALWLR (Pt. 888) 574 at 577, Nuhu vs. Ogele (2004) FWLR (Pt. 193) 362 at 365; (2003) 18 NWLR (Pt.852) 251.
The respondent has also berated the manner of the proceedings of 19/11/2002 in which no consideration whatsoever has been given to his counter-affidavit which otherwise would have showed his opposition to the application. It has also been suggested that as per Awuse vs. Odili & Ors (2003) 16 NSCQR 218 at 224 that a court of law can on some grounds as here over-rule itself hence the application to relist the said suit.
Arguing in regard to the trial court being functus officio the respondent has referred to Okon vs. Ekanem (2003) FWLR (Pt. 136) 981 at 987; (2002) 15 NWLR (Pt.789) 106 to contend that it must depend on the nature of the order/judgment made and the circumstances surrounding the same and that if an order/judgment is final and on the merits the court becomes functus officio but not otherwise. It is submitted that as the instant order has not been on the merits in that it has not pronounced on the rights of the parties that the said order cannot therefore be a final decision and so the trial court cannot be functus officio in the matter. Order 14 Rules 1 and 6 and Order 37 Rules 8 and 9, he submits have been referred to simply as examples where “dismissal” of an action has been interpreted to mean “striking out” in which event the said suit can be reinstated by application to relist.
The court is urged therefore, to dismiss the appeal and make an order remitting the case to the trial court to hear and determine the case on the merit.
The appellant in the reply brief has challenged the respondent on his manner of presentation of the facts of the case and has complained that the respondent is not permitted in law to state facts outside the record of the proceedings to the appeal. The point is made that where the court’s jurisdiction has been put in issue it must be resolved firstly before going further with the proceedings. See: Saleh vs. Monguno (2003) 1 NWLR (Pt. 89) 221 at 231. And so, that the trial court rightly and firstly has to dispose of the issue of abuse of court process as a matter of jurisdiction. I must subjoin here that the observation on the respondent’s presentation of the facts of the matter is otherwise timely. The compendium of the facts contains figments of the respondent’s speculation. Thus sliding into facts and events subsequent to the said order relisting Suit No. HC/230/2000 and not having any relevance to the instant appeal. They have to be discarded in the consideration of this appeal and I so order.
The respective cases on both sides to the appeal have been strenuously canvassed as represented in my summary of the same above. The question they have raised has encapsulated whether the order dismissing the suit No.HC/230/2000 upon the appellant’s application that the said suit constitutes an abuse of court process is a final order upon a decision on the merits so that the trial court having thus become functus officio in the matter the order of 8/4/2004 relisting Suit No. HC/230/2000 is non sequitur and without jurisdiction.
The respondent has in its statement of facts at paragraph 3 of his brief of argument alleged in the most flagrant and unprofessional language that “The court however dismissed the case casually”. Respectfully, this is an uncouth remark not borne out by the record. It is deprecated. I am therefore enjoined as it were to reproduce in extenso for all to see the proceedings of 19/11/2002 as per the record thus:
“Parties present except 2nd defendant, Barrister E. Akpama for the plaintiff, Barrister F. O. Onyebueke for the 1st defendant.
Onyebueke: There is an application filed on 18/12/2000. We are praying for the dismissal of this suit.
Akpama: We are not opposing the application.
Onyebueke: There being no opposition may I move accordingly?
Court: This application not being opposed by the plaintiff represented by Barrister E. Akpama shall be and is hereby granted as prayed.
The suit in the circumstances shall be and is hereby dismissed.
Sgd.
Hon. Justice M. Edem
19/11/2002”
It is on the backdrop of the foregoing that the respondent (i.e. plaintiff in the court below) has brought an application praying for an order relisting suit No. HC/230/2000 dismissed on 19/11/2002 for hearing and determination on the merits upon the grounds I have already outlined above. The appellant (as defendant) has responded by filing a preliminary objection to the application to relist the said suit on the ground that the trial court has no jurisdiction to entertain the application to relist Suit No. HC/230/2000 that has been dismissed as an abuse of court process. The trial court having listened to the argument of the parties herein has over-ruled the preliminary objection and has ordered the relistment of the said suit for hearing and determination.
In the light of the above extract of the proceeding of 19/12/2002, which has not been challenged by either party to this matter and which otherwise is clear and unambiguous, I find it difficult to comprehend the basis for the respondent’s contention that both parties and the court have been aware that the application to dismiss Suit No. HC/230/2000 has been strongly opposed by the respondent based on his counter affidavit filed in the matter and furthermore that the application has not been heard on the merits because of the “unceremonial style of moving the motion” (whatever this may mean). The foregoing posturing by the respondent here has been highlighted to show his total misapprehension of firstly of a party as the respondent here indicating that he does not oppose an application as the instant one i.e. to dismiss Suit No. HC/230/2000 and again for misconceiving what constitutes hearing on the merits of an application even in circumstances as here and also whether an order which has dismissed a suit as the case No.HC/230/2000 as an abuse of court process is a final order or an interlocutory order which has not finally determined the matter.
It is trite law that an order/judgment on the merits is one given after argument and investigation and when it is determined which party is on the right that is, in contradistinction to an order/judgment given upon a preliminary or formal or merely technical point or by default or without trial. In expatiation with regard to the facts of this case, the respondent has indicated before the trial court not to oppose the application to dismiss Suit No. HC/230/2000 as an abuse of court process that is to say after the appellant here (as applicant) has signified that he was minded to move the said application. The respondent has thus dispensed with any further argument on the application. In other words, the respondent is not opposed to the court making an order as prayed in the application which in this case is to dismiss Suit No. HC/230/2000. There can be no gainsaying that the court is obliged to entertain the application on the merits. Having heard both parties on their respective stances to the said application (i.e. by giving opportunity to both parties to be heard) which is what hearing an application on its merits otherwise signifies, in short is all about, it cannot lie in the mouth of the respondent in the circumstances to contend that he has not been given a fair hearing, meaning, that the application has not been heard on its merits. The record has shown to the contrary; indeed that a chance to explain, to submit rebuttal evidence and argument has been accorded to the respondent. See: Igbinomwanhia vs. N.T.A. (1995) 6 NWLR (Pt.403) 651. The implication of not opposing an application of this nature where as here the Respondent has filed a counter affidavit is that the counter affidavit has to be deemed as having been abandoned even then as the respondent being aware of it has made no reference whatsoever to the counter affidavit before the trial court. That is to say, that it is no longer being relied upon having conceded the application.
The surmises of my reasoning above are that, the integrity of the proceeding of 19/12/2002 cannot be contested by the respondent and that it is the function of the court therefore to interpret it; afterall the court is bound by the record. The proceeding of 19/11/2002 being clear and unambiguous, the court is obliged to give the words used therein their ordinary and grammatical meaning. As I have not found even from the surrounding circumstances of any lukewarmness or apathy of the respondent to the objection raised against the said Suit No.HC/230/2000, I am satisfied the respondent fully aware of the implication of conceding to the application clearly and mindedly has not opposed the prayer sought in the said application. I can find nothing belying the respondent’s stance at the trial court that he has no opposition to the application to dismiss Suit No. HC/230/2000 hence the trial court rightly in my view has granted the order as prayed moreso, after hearing both parties to the application. The respondent’s stance on the application in the circumstances, according to the record is unequivocal. So that his complaint now in this respect is no more than an afterthought. The order, all the same, cannot therefore be challenged as not having been given on the merits even when it has been made in the presence of both parties.
The other side of the coin in this case as between the parties to this matter is whether by the trial court’s order dismissing Suit No.HC/230/2000, it has put an end to the action; in other words has it killed Suit No. HC/20/2000. The conclusion that the order of 19/11/2002 has finally killed Suit No. HC/230/2000 follows rather naturally. Having so done, the decision/ruling has to be seen to be final and not interlocutory which cannot determine finally the suit as I have adverted to herein. I have no difficulty in holding that the ruling of 19/11/2002 is a final order which has put an end to the Suit No.HC/230/2000. And furthermore the order of 19/11/2002 has rendered Suit No. HC/230/2000 as a suit wanting in bona fides and so is not only frivolous and oppressive; it is also an abuse of legal procedure or improper use of legal process. See: Amaefute vs. The State (1988) 1 NSCC (Vol. 19) 669 at 684 (435-50). Besides, as decided in Akinsanya vs. U.B.A, Ltd an order/judgment which touches on the competency of an action vis-a-vis the jurisdiction of the court to hear it has been held to be a final decision. It follows as in the case of Omonikoko vs. Arowosaiye (supra) that an abuse of court process is not merely an irregularity; it is a fundamental vice which is visited with dismissal. To challenge the dismissal of Suit No. HC/230/2000 as an abuse of court process has to be by a substantive appeal before an appellate court as this court and not by an application to relist the same before the same court that has dismissed the suit as an abuse of court process.
One other implication of having declared an order/judgment as the instant one as a final order is that the court becomes functus officio with respect to the suit and the order cannot be reopened again thereafter by the same court. A final order/judgment as the instant order puts an end to an action at law by declaring that the plaintiff is entitled to recover the remedy he sues for, that is, it puts an end to the litigation as to all parties on its merits. See Okon vs. Ekanem (supra). Another effect of such declaration is that the proceeding having been terminated by the order of court, the court becomes functus officio on delivering its order/judgment as the case may be and thus it has exhausted all the jurisdiction it has in the matter. It would be seen that the finality of a decision is correlated with the court being functus officio. The trial court on the facts of the case has become functus officio in the matter after making the order dismissing Suit No. HC/230/2000. There is therefore nothing outstanding for the trial court to pronounce upon as between the rights of the parties in the said suit. However, it is settled that where an order made by a court is made without jurisdiction, a nullity in other words, the court can set it aside but as regards an erroneous order made within jurisdiction as has been alleged against the instant order dismissing Suit No. HC/230/2000, it is only an appellate court as this court in the circumstances that can review the order. The distinction between final decision and interlocutory decision has also become constitutionally so marked in that appeals from the Federal High Court and High Court sitting at first instance lie as of right to the Court of Appeal in regard to final decisions in any civil or criminal proceedings, See: Section 241 of the 1999 Constitution, otherwise leave has to be sought in regard to interlocutory decisions. See Section 242 of the 1999 Constitution.
Again, that a court as the instant trial court has inherent power to set aside its decision not predicated on its merits is trite. The principle behind the proposition is as laid down in the case of Evans vs. Bartham (1937) AC 473 at 480 to the effect that unless and until the court has pronounced a judgment upon the merits or by consent, it has power to revoke the expression of its coercive powers where that has been obtained by failure to follow any of the Rules of procedure. See also Collins vs. The Vestry of Paddington (1880) 58 B.D. 368 at 380-1. The Respondent has argued that the trial court has the power to relist Suit No. HC/230/2000 so long as it has not been determined on its merits. This assertion is based on an erroneous premise and as I have demonstrated here the application to dismiss Suit No. HC/230/2000 has been heard on the merits consequently a final order to that effect to dismiss Suit No. HC/230/2000 has been rightly declared and it has more or less disposed of the rights of the parties in the sense that it is not open to either party to relist or file a fresh action as per Suit No.HC/230/2000 See: H.C.M. vs. Iyoha (supra).
I have also pointed out that an irregularity of the caliber of abuse of court process as in the instant case is not an ordinary irregularity but is one that touches on the competency of the action vis-a-vis the jurisdiction of the court to hear it and so unlike mere procedural irregularity that can be set aside by the court, an irregularity constituting an abuse of court process is always visited with dismissal as has been the case in Suit No. HC/230/2000, which can only be reviewed by an appellate court on appeal. I therefore, resolve the two issues raised in this matter against the respondent.
Having resolved the two issues raised for determination in the appeal in favour of the appellant; the appeal is therefore meritorious and should be allowed. I allow it and set aside the ruling of the trial court delivered on 8/4/2000 relisting Suit No. HC/230/2000 to be heard on the merit. For the avoidance of doubt the Suit No. HC/230/2000 stands dismissed with N10,000.00 costs to the Appellant.
Other Citations: (2006)LCN/1980(CA)
