Mr. Isaac Ogbonmwan V. Mr. J. O. Aghimien (2016)

LawGlobal-Hub Lead Judgment Report

UGOCHUKWU ANTHONY OGAKWU, J.C.A.

The dispute between the parties to this appeal is in respect of a piece or parcel of land situate in Benin City. Arising from this contest, an action was instituted by the Appellant herein in Suit No. B/568/1998. The Respondent filed a counterclaim in the said action. However the Appellant?s claim was struck out for want of diligent prosecution and the Respondent?s counterclaim proceeded to hearing. Attempts by the Appellant to defend the counterclaim were unsuccessful. Fortuitously, the hearing of the said counterclaim had to commence de novo before another Judge and the Appellant was now granted extension of time to file a defence to the Counterclaim. For whatever reason, the Respondent thereafter withdrew the said counterclaim.

?Meanwhile, the application of the Appellant to relist the main claim in Suit No. B/568/1998 was unsuccessful, consequent upon which the Appellant instituted a fresh action over the same disputed land in Suit No. B/394/2007. The Appellant later discontinued this action and the same was struck out. Upon the refusal of the

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Appellant?s application to set aside the order striking out Suit No. B/568/1998 and for the same to be relisted, the Appellant appealed against the refusal to set aside the said order striking out Suit No. B/568/1998. Apart from filing the said Notice of Appeal, the Appellant did nothing further in respect of the appeal.

Subsequently the Appellant instituted yet another action in respect of the said disputed land in Suit No. B/146/2009. Pleadings were filed and exchanged and the Respondent in his Statement of Defence raised the point of law that Suit No. B/146/2009 was an abuse of Court process on grounds of multiplicity of actions. This point of law was heard on a motion on notice filed by the Respondent and in a considered Ruling delivered on 17th January 2013, the High Court of Edo State upheld the point of law that the action in Suit No. B/146/2009 was an abuse of process and consequently dismissed the action. The said Ruling is at pages 83-90 of the Records.
?
The Appellant being dissatisfied with the said Ruling appealed against the same on 14th February 2013. The Notice of Appeal is at pages 91-93 of the Records. The Records of Appeal

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having been compiled and transmitted, the parties filed and exchanged briefs of argument. The Appellant?s Brief of Argument was filed on 16th May 2013 while the Respondent?s Brief was filed on 2nd July 2013 and regularised by order of Court made on 18th May 2016. The Appellant filed a Reply Brief on 24th February 2016.

The Appellant distilled two issues for determination as follows:
1. Whether or not a Court is functus officio, over a matter that was struck out by another Court of co-ordinate jurisdiction for lack of diligent prosecution.
2. Whether or not the refiling of a matter earlier struck out by a Court amount to an abuse of Court processes.

The Respondent on his part also formulated two issues for determination, namely:
1. Whether the learned trial judge was right when he held that fresh Suit No. B/146/2009 as instituted by the Appellant herein was an abuse of Court process?
2. Whether the learned trial judge was therefore right when he held that he lacked jurisdiction to hear Suit No. B/146/2009 being functus officio so to do?
?
At the hearing of the appeal, I. N. Ewansiha, Esq., learned counsel for the

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Appellant adopted the submissions in the briefs of argument filed by the Appellant and he urged the Court to set aside the decision of the lower Court and order for a trial of the matter. In the same vein, A. Osayomwanbor, Esq., of counsel for the Respondent adopted and relied on the submissions in the Respondent?s Brief. He further referred to the case of UGESE vs. SIKI (2007) 8 NWLR (PT 1037) 452 at 463, 464, 466 and 467 and he urged the Court to dismiss the appeal.

The quodlibet in this matter revolves around whether Suit No. B/146/2009 is an abuse of Court process. It is where it is an abuse of process that the usual stigma of the Court being functus officio or lacking jurisdiction would attach. In this wise therefore, it seems to me that the pertinent question in this appeal is whether the said Suit No. B/146/2009 is an abuse of Court process. This will accordingly form the fulcrum of the resolution of this appeal and the issue number one distilled by the Respondent is bespoke and apt. It is therefore on the basis of the said issue that I will consider the submissions of learned counsel and determine this appeal.

ISSUE FOR DETERMINATION<br< p=””

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Whether the Learned Trial Judge was right when he held that fresh Suit No. B/146/2009 as instituted by the Appellant herein was an abuse of Court process.

SUBMISSIONS OF THE APPELLANT?S COUNSEL
The Appellant submits that Suit No. B/568/1998 was struck out on 9th June 2003 for lack of diligent prosecution, while Suit No. B/394/2007 was also struck out on 3rd day of November 2008 pursuant to the notice of discontinuance filed. It was posited that an order striking out a case decides nothing as regards the matter in dispute but merely gets rid of the pending action leaving the party at liberty to begin de novo, either in the same or subsequent Suit. It was stated that a party whose Suit is struck out is at liberty either to apply to relist or alternatively file a fresh Suit. The cases of AGBEYI vs. ABO (1994) 7 NWLR (PT 359) 735 at 737 ratio 2 and EZEONU vs. AGHEZE (1991) 4 NWLR (PT 187) 631 at 635 ratio 8 were referred to.

The Appellant, relying on the case of N. V. SCHEEP vs. MV. S. ARAZ (2000) 82 LRCN 3131 at 3141 ratio 19, argues that there was no time when two or more cases were filed and prosecuted by the Appellant against the

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Respondent at the same time before the lower Court. It was contended that Suit No. B/394/2007 was filed when the motion to relist Suit No. B/568/1998 was dismissed. The said Suit No. B/394/2007 it was stated was later discontinued and struck out. After that the action is Suit No. B/146/2009 was filed. It was submitted that for an action to be an abuse of process of Court, it must be shown that there are two or more actions between the same parties in respect of the same subject matter in one or more Courts at the same time. The case of IKINE vs. EDJERODE (2001) 92 LRCN 3288 at 3290 ratios 4, 12, and 13 was cited in support. It was conclusively argued that the filing of Suit No. B/146/2009 after the striking out of Suit No. B/568/1998 and Suit No. B/394/2007 does not amount to an abuse of process of Court.
?
With respect to the appeal filed against the decision refusing to relist Suit No. B/568/1998, the Appellant submits in the Reply Brief that there was no Settlement of Records of Appeal, Records were not transmitted and the appeal was never entered at the Court of Appeal. The Appellant maintained that the mere filing of a Notice of Appeal does not mean

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that there is an existing appeal pending at the Court of Appeal.

SUBMISSIONS OF THE RESPONDENT?S COUNSEL
The Respondent argues that an appeal is not a new action but a continuation of the matter which is subject of the appeal and that at the time the action in Suit No. B/146/2009 was instituted, the appeal arising from Suit No. B/568/1998 was pending before this Court. It was therefore posited that in the circumstances the said Suit No. B/146/2009 was an abuse of Court process. The cases of FBN PLC vs. T. S. A. IND. LTD (2010) 187 LRCN 1 at 13 ratio 5 and NYAH vs. NOAH (2007) 4 NWLR (PT 1024) 320 at 337H ? 338B were relied upon.
?
It is the contention of the Respondent that it is a blatant abuse of process for a party to institute an action and upon its being struck out attempt to relist the same and upon refusal and after obtaining leave to appeal and filing a Notice of Appeal turn round to file a fresh suit in respect of the same parties and the same subject matter. The Respondent argues that it is an abuse of process to re-litigate an issue earlier litigated before the same Court for the Court to pronounce thereupon as the decision

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reached earlier is binding until set aside on appeal. The case of ANSA vs. CROSS LINES LTD (2005) 14 NWLR (PT 946) 645 at 649 ratio 6 was referred to. The Respondent maintained that at the time Suit No. B/394/2007 and Suit No. B/146/2009 were filed, there existed a pending matter, albeit an appeal between the same parties in respect of the same subject matter and that this constituted an abuse of process. The case of NYAH vs. NOAH (supra) at page 323 & 324 ratio 1 and 2 was relied upon.

The Respondent asserted that since Suit No. B/146/2009 was an abuse of process, the lower Court was stripped of the requisite jurisdiction in respect thereof and the Court was consequently functus officio to adjudicate and had a duty to resist the abuse of process. The cases of FBN PLC vs. T.S.A. INDUSTRIES LTD (supra) and ANSA vs. CROSS LINES LTD (supra) were cited in support.

RESOLUTION
This appeal falls within a very narrow compass. At the outset of this judgment I tried to trace how we arrived at this point. For purposes of clarity, the Appellant commenced an action against the Respondent in respect of their disputed land in Suit No. B/568/1998. This

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action was struck out for want of diligent prosecution on 9th June 2003 (See page 68 of the Records). The Appellant applied for the order striking out Suit No. B/568/1998 to be set aside and for the suit to relisted for hearing. This application was refused and dismissed on 26th January 2006. The Appellant dissatisfied with the refusal to relist the said Suit No. B/568/1998 appealed to the Court of Appeal. The Notice of Appeal is at pages 51 ? 52 of the Records.

Now having come thus far in his desire to prosecute Suit No. B/568/1998 on the merits, the Appellant after having filed the appeal made a detour. He returned to the High Court and filed another action in Suit No. B/394/2007 against the Respondent in respect of the disputed land. This action is Suit No. B/394/2007 was later discontinued by the Appellant and struck out on 3rd November 2008. (See page 69 of the Records). This being so, I would say no more on this Suit No. B/394/2007 because even if it had constituted an abuse of process when it was filed, the fact of it having been discontinued and struck out put an end to the abuse of process: N. V. SCHEEP vs. MV. S. ARAZ (2000) 15 NWLR (PT

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691) 622.

The Appellant?s next step was not in the pursuit of the appeal he filed. The Appellant filed yet another fresh Suit at the High Court in Suit No. B/146/2009 against the Respondent still in respect of the same disputed land subject of the action in Suit No. B/568/1998 and in respect of which the Appellant had filed an appeal against the refusal to relist.
?
The lower Court in its Ruling appealed against held that the said Suit No. B/146/2009 is an abuse of Court process. The lower Court held as follows at pages 89 ? 90 of the Records:
“? it is clear to me that the issue for determination from the arguments advanced is whether considering the fact that this case with the same parties, the same issue as the one struck out earlier? and the subsequent leave granted to appeal, amounts to abuse of Court process when it filed in this Court this Suit.
? Coming to this Court on the same issue and the same parties amount to abuse of Court process?
The Claimant is hereby advised to proceed to the Court of Appeal to appeal against the judgment of the Court that refused his application to

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relist.?

The cardinal question is whether the lower Court is right in its conclusion that the Suit No. B/146/2009 is an abuse of Court process.

Now, the term abuse of process of a Court is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. Abuse of process can only mean the abuse of legal procedure or the improper use or misuse of the legal process. See AMAEFULE vs. THE STATE (1988) 2 NWLR (PT 75) 156 at 177. The Court under its inherent jurisdiction or power has the duty to ensure that the machinery of justice is duly lubricated and that it is not abused. Abuse of process simply means that the process of Court must be used bona fide and properly and must not be abused: ARUBO vs. AIYELERU (1993) 3 NWLR (PT 280) 126 at 142.
In SARAKI vs. KOTOYE (1992) 9 NWLR (PT 264) 156 at 188 E-G, Karibi-Whyte, JSC stated:
?The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due

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administration of justice. It is recognised that the abuse of the process may lie 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. This will arise in instituting a multiplicity of actions on the same subject matter against same opponent on the same issues. See OKORODUDU vs. OKOROMADU (1977) 3 SC 21; OYAGBOLA vs. ESSO WEST AFRICAN INC. (1966) 1 ALL NLR 170. Thus the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right, per se?. (Emphasis supplied)
See also the cases of OKAFOR vs. A-G (1991) 6 NWLR (PT 200) 659 at 681; CBN vs. AHMED (2001) 28 WRN 38 at 60-61 and MOGAJI vs. NEPA (2003) 8 WRN 42 at 53.
As stated by Edozie, JSC in AGWASIM vs. OJICHIE (2004) 18 NSCQR (PT 1)

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359 at 367:
?It is trite law that the abuse of judicial process is the improper use of the judicial process by a party in litigation. It may occur in various ways, such as instituting a multiplicity of action on the same subject matter against the same opponent on the same issue or a multiplicity of action on the same matter between the same parties. It also occurs by instituting different actions between the same parties simultaneously in different Courts even though on different grounds, where two similar processes are used in exercise of the same right
In his own contribution, Niki Tobi, JSC (of blessed memory) at page 369 put the legal position as follows:
?The above factual position creates a scenario of the appellant pursuing the same matter by two processes. In other words, the appellants, by the two processes, are involved in some gamble or game of chance to get the best in the judicial process? A litigant has no right to pursue pari passu two processes which will have the same effect in two Courts at the same time with a view to obtaining victory in one of the processes or in both. Litigation is not a

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game of chess where players outsmart themselves by dexterity of purpose and traps. On the contrary, litigation is a contest by judicial process where the parties place on the table of justice their different positions clearly, plainly and without tricks.?
Where there is an abuse of process, it is the action which is later in time that constitutes the abuse of Court process. See NWEKE vs. UDOBI (2001) 5 NWLR (PT 706) 445 at 461-462 and AFRICAN REINSURANCE CORPORATION vs. JDP CONSTRUCTION NIG. LTD (2003) FWLR 251 at 270.
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It is not disputed that Suit No. B/568/1998 was filed before Suit No. B/146/2009. So it is Suit No. B/146/2009 that is later in time. However, Suit No. B/568/1998 had been struck out even though the Appellant has an appeal against the refusal to relist the said Suit No. B/568/1998. The pertinent question is the effect of the said appeal. Put differently, whether the appeal is pending or if as contended by the Appellant in paragraph 1.01 ? 1.04 of the Appellant?s Reply Brief there is ?no appeal and there was no settlement of records of appeal, there was also no transmission of records of appeal to Court of Appeal

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and the case was not registered in the Court of Appeal
brief of argument was neither written nor filed and also no service was madethere is nothing to withdraw or strike out in the Court of Appeal if the appellant had wanted to do so
the respondent had failed to shown [sic] to this Honourable Court the Appeal number or any hearing notice in the case which he said is pending before this Court of Appeal since 2006.
it is our reply that the mere showing of a paper titled NOTICE OF APPEAL does not mean that there is an existing appeal pending at the Court of Appeal.

What then is the position? Doubtless, the Appellant filed a Notice of Appeal which is at pages 51-52 of the Records. As rightly submitted by the Appellant he has not prosecuted the appeal as nothing has been done beyond filing the said Notice of Appeal. Does this inaction or tardiness on the part of the Appellant make the appeal not to be pending? When is a matter pending in Court? In KASSIM vs. EBERT (1966) NSCC 44 or (1966) 1 SCNLR 107, Ademola, CJN relied on the dictum of Lord Jessel, Master of Rolls in RE

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CLAGELT?S ESTATE, FORDHAM vs. CLAGELT (1882) 20 Ch.D 637 where it was stated that:
?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.?
Applying this test, the issue is whether any proceeding can be taken on the Notice of Appeal filed by the Appellant against the decision refusing to relist Suit No. B/568/1998. The answer is definitely in the affirmative as several proceedings can be taken in order to either prosecute the appeal further or terminate the same.
In OYELESE vs. INEC (2011) LPELR (CA/I/M.36/2011) (CA) 1 at 25-26, it was held that an appeal is pending as soon as the Notice of Appeal is filed in the Court of trial or in any other place designated for that purpose by the Rules of Court. See also OGUNREMI vs. DADA (1962) 1 ALL NLR 563, LEKWOT vs. JUDICIAL TRIBUNAL etc. (1997) 8 NWLR (PT 515) 22, AKINYEMI vs. SOYANWO (2006) 13 NWLR (PT 998) 496 at 514-515 and QUADRI vs. THE STATE (2013) LPELR (21471) 1 at 11-12.
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Having ascertained that the appeal is pending, could it constitute the action in Suit No. B/146/2009

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an abuse of process? The Respondent has rightly submitted that an appeal is a continuation of the matter that is subject of the appeal. So the appeal against the decision refusing to relist Suit No. B/568/1998 is a continuation of the said Suit No. B/568/1998. By the said pending appeal, the Appellant seeks an order of retrial of the entire Suit No. B/568/1998. (See page 52 of the Records). The subject matter, issues and parties in Suit No. B/568/1998 is the same as Suit No. B/146/2009. The object of Suit No. B/146/2009 is for the contest between the parties on the disputed land to be heard on the merits. The object of the pending appeal is for an order to be made so that Suit No. B/568/1998 could be heard on the merits with regard to the contest on the disputed land.

It has to be remembered that the concept of abuse of judicial process is imprecise and may manifest in infinite variety and conditions. The abuse of process occurs by instituting different actions between the same parties simultaneously in different Courts even though on different grounds, where two similar processes are used in exercise of the same right. In the peculiar circumstances of

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this matter, filing the appeal at the Court of Appeal in order to attain a hearing on the merits of Suit No. B/568/1998 by the High Court and at the same time filing Suit No. B/146/2009 in order for the High Court to hear the contest over the disputed land. A litigant has no right to pursue pari passu the two processes which will have the same effect in two Courts at the same time:AGWASIM vs. OJICHIE (supra).

Without a doubt, the Appellant is right in his submission that since Suit No. B/568/1998 was struck out, he is at liberty to either apply to relist the Suit or in the alternative file a fresh action. SeeNDIC vs. OKEKE (2010) LPELR (4597) 1 at 18 andEZEONU vs. AGHEZE (supra). However, the settled position is that the party is put to his election as to which course to pursue; either to apply to relist or to file a fresh action. The party is not allowed, as the Appellant has done in this instance, to pursue the process of relisting the action by the appeal he filed and at the same filing a fresh action. By so doing the Appellant is involved in some gamble or some game of chance with the hope of getting the best in the judicial process by obtaining

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victory through one of the processes or through both. The Appellant having chosen the option of applying to have the action relisted and filing an appeal against the refusal to relist the action could no longer make a volte face to exercise the option of filing a fresh action. See UGESE vs. SIKI (supra)at 464H 465A and 466H-467A and MOHAMMED vs. HUSSEINI (1998) 14 NWLR (PT 584) 108.

It cannot be disputed that the Appellant has a right to approach the Courts but the abuse of process lies in the multiplicity and manner of exercise of the right, rather than the exercise of the right per se. Since there is a pending appeal, it is an abuse of process for the Appellant to have filed the fresh action in Suit No. B/146/2009: NYAH vs. NOAH (supra). The Court will not allow a litigant to abuse the process of the Court or to improperly use the process of the Court to irritate and annoy his opponent or otherwise interfere with the efficient and effective administration of justice. The Court has a duty to protect itself from the abuse of the judicial process: JOSIAH CORNELIUS LTD vs. EZENWA (1996) 4 NWLR (PT 443) 391 and DINGYADI vs. INEC (2011) LPELR

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(950) 1 at 39.

Any case which is an abuse of process must go under the hammer in order to halt the drift by the abuse and it is settled law that where there is an abuse of process the proper order is the dismissal of the process that is the abuse: AFRICAN REINSURANCE CORPORATION vs. JDP CONSTRUCTION NIG. LTD (supra) and IGBEKE vs. OKADIGBO (2013) LPELR (20664) 1.

In the light of the foregoing the lower Court arrived at the correct decision when it held that Suit No. B/146/2009 was an abuse of the process of Court. Being an abuse of process the lower Court rightly dismissed the action. In a summation, this appeal is devoid of merit and it is hereby dismissed. The Ruling of the lower Court in Suit No. B/146/2009: MR. ISAAC OGBONMWAN vs. MR. J. O. AGHIMIEN delivered on 17th January 2013 is hereby affirmed. There shall be costs of N50,000.00 in favour of the Respondent.

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Other Citations: (2016)LCN/8886(CA)