United Cement Company Nigeria Limited V. Ntufam Pius E. Itita & Ors (2016)
LawGlobal-Hub Lead Judgment Report
PAUL OBI ELECHI, J.C.A.
This is an appeal against the Ruling of the High Court of Cross River State sitting at the Calabar Judicial Division presided over by His Lordship, Elias O. Abua delivered on the 31st March, 2014 in Suit No. HC/245/2013. The Learned trial Judge dismissed the Appellant’s Motion on Notice seeking to dismiss the suit of the 1st-6th Respondents on grounds that the said suit constituted an abuse of Court process.
On the 29th day of November 2013, the Appellant filed a Motion on Notice seeking for an Order to dismiss Suit No. HC/245/2013 for constituting an abuse of Court process of the Honourable Court. It was the contention of the Appellant Counsel that the said suit of the 1st-6th Respondents on similar suits on the same subject matter and against the same defendants had been struck-out and dismissed by the Court.
The Respondents filed a Counter-Affidavit in opposition on the 23/12/2013 and a Written Address. A lone issue of whether Suit No. HC/245/2013 filed after the dismissal of Suit No. HC/140/2012 and also the striking out of Suit No. HC/171/2007 constitutes an abuse of Court
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process. The Appellant also filed a rejoinder on point of Law on the 17/01/2014. In a considered Ruling, the trial Judge dismissed the Motion of the Appellant for want of merit.
Being dissatisfied with the said Ruling, the Appellant has filed his appeal to invoke the appellate jurisdiction of this Court.
To argue the Appeal, the Appellant formulated a lone issue for the determination of the appeal:
Whether a Judge has power to set aside, vary or sit on appeal on the Orders of another Judge(s) of co-ordinate or concurrent jurisdiction (from Grounds 1 & 2 of the Notice of Appeal).
According to Learned counsel Mr. Idiege for the Appellant, the Learned trial Judge was more or less sitting on appeal over the order made by His Lordship, Michael Edem, a Judge of coordinate jurisdiction. The Learned trial Judge in his Ruling at page 155 – 156 of the Records said:
“The Order dismissing and striking out the previous suits of the Claimants were not Orders made after a full hearing of the cases under review or interlocutory decisions based on questions that settled any issues, but complaints that touched on the mode of commencement of
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the suits as well as the service of Originating Processes. Certainly, then, these Orders could never have settled the subject matter of the two previous suits taken out by the claimants here.”
The order striking out suit No. HC/170/2007 as shown on page 115-116 of the Records was made by Akon B. Ikpeme J. on the 22nd February, 2012 while the order dismissing suit No. HC/140/2012 was made on the 15th July, 2013 by M. Edem J. what it means is that none of the Orders above mentioned was made by Elias O. Abua J., the trial Judge in this matter. Learned Counsel contended that having not made the above two Court Orders, the Learned trial Judge was not in any good position to determine or even investigate whether or not the said Orders were made after full hearing or whether or not the said Orders settled the subject matter of the two previous suits as doing so would be tantamount to sitting on appeal and/or setting aside or varying the decision of a Judge of concurrent or coordinate jurisdiction particularly the order made by Michael Edem J. on the 15th July, 2013 which dismissed suit no. HC/140/2012. Hitherto the Learned trial Judge had observed in his
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Ruling that the parties in that suit and the preset one as well as the issues and reliefs sought are the same. See Chief A. O. Oku & Ors v. D. E. Kumagba & Ors. (1974) All NLR 429 at 430; Robert Nnaji v. Joseph Ede (1996) 8 NWLR (Pt. 466) 332 at 342; Amanambu v. Okafor (1966) 1 All NLR 205; Olonu v. Abolore (1993) 5 NWLR (Pt. 293) 255; Chief Jeremiah Alapa v. Lemonnu Sanni & Anor. (1967) NWLR 397.
On the basis of the above, he urged the Court to resolve this lone issue in favour of the Appellant allow the appeal and set aside the Ruling of the Lower Court.
In reply, the 1st-6th Respondents distilled two issues for determination:
(1) Whether the trial Court was not in error when he made an Order dismissing the Motion of the Appellant filed on the 19th November, 2013 for want of merit (from ground 1 of the Notice of Appeal).
2. Whether the Court did not err when it held in its Ruling that “I am therefore of the firm view that this case does not constitute an abuse of Court process there being no subsisting case pending between the parties simultaneously with this” (from ground 2 of the Notice of Appeal).
In arguing
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issue No. 1 above, Learned Counsel answered the No. 2 issue in the affirmative. According to Learned Counsel, Suit No. HC/171/2007 was struck out for being incompetent in accordance with Order 2 Rules 2 (2) of the Cross River State High Court (Civil Procedure) Rules 2008. Both the Statement of Claim and the Writ of Summons were not signed and as a result it was struck-out and as such, it could not qualify as a final Judgment or Order as their rights and obligations were not determined. See PDP v. Okorocha & 10 Ors. (2012) Vol. 3 MJSC (Pt. III) 1 at 8. On the definition of Judgment, Learned Respondent Counsel referred to the authority of Ogboru & Anor v. Uduaghan & 2 Ors (2012) Vol. 3 MJSC (Pt. III) 75. He then contended that the decisions reached in Suits No. HC/171/2007 and HC/140/2012 were not decided on merit as parties did not join issues which could have enabled the Court to hear and determine the case on their merits.
?On the submission that the Learned trial Judge sat on appeal over the order made by Michael Edem, a Judge of coordinate jurisdiction, Learned Respondent Counsel submitted that it is grossly misconceived and ought to be
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discountenanced. The Appellant as contended by Learned Counsel submitted to the jurisdiction of the Court when he asked the Court to dismiss Suit No. HC/245/2013 for constituting an abuse of Court process and thereby inviting the Court to look at suits HC/171/2007 and HC/140/2012.
Suits HC/171/2007 and HC/140/2012 were struck-out and dismissed respectively, due to the filing of incompetent Originating Processes; they were therefore void ab initio and dead. They are inchoate, legally non-existent and there cannot be an appeal on then being defective processes. It is on the basis of that that Learned Counsel submitted that the trial Court could not have sat on appeal or vary the Order made by the Court of coordinate jurisdiction. See Ministry of Works and Transport, Adamawa State v. Yakubu (2013) Vol. 1 MJSC (Pt. II) 65 at 69, NWBHC v. Denlag Ltd. (2005) 4 NWLR (Pt. 431) 843.
He then submitted that the trial Court rightly exercised its jurisdiction by dismissing the Motion on Notice filed on the 29th day of November, 2013. On the basis of that he urged the Court to resolve this issue in their favour.
?On Issue 2 which is whether the Court
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did not err when it held in its Ruling that:
“I am therefore of the firm view that this case does not constitute an abuse of Court process there being no subsisting case pending between parties simultaneously.”
Learned Respondent counsel answered the above issue in the affirmative. Suits HC/171/2007 and HC/140/2012 are the ones that could have given life to the argument of the Appellant because suit No. HC/171/2007 was merely struck out because the Originating Processes were not signed (Exh. B). But in the case of suit No. HC/140/2012 it was dismissed on a preliminary objection for non service of the Writ of Summons within time. Having been struck out and dismissed respectively, they remain legally dead in Law according to Respondent Counsel. Learned Counsel then contended that having died and no more in existence, therefore suits No. HC/171/2007 and HC/140/2012 never existed simultaneously with suit No. HC/245/2013. There was therefore nothing like an abuse of Court process. He then urged the Court to resolve this issue on their behalf and finally to dismiss the appeal as being unmeritorious.
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In a Reply Brief filed on the 15/4/2016 and
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deemed 29/4/2016, the Appellant Counsel contended that the Respondent argument in respect of Issue 2 raised by then is in the nature of a Preliminary Objection to the competence of the appeal without giving Notice of same either in their Brief of Argument or separate Notice. As a result he urged the Court to discountenance the argument in respect of Issue No. 2. See
Onwudijo v. Dimobi & Ors. (2004) All FWLR (Pt. 234) 1819, Prof. Fagbule v. Rodrigues (2003) FWLR (Pt. 137), Esoruso & Ors. v. Alhaji Ogidi & Ors. FWLR (Pt. 137) 1171.
On Respondent’s Issue No. 1, Learned Counsel submitted that there is no nexus or relationship between Issue No. 1 and ground 1 of the Notice of Appeal. He then contends that there is need for issue for determination to arise from the grounds of appeal. See Ikine v. Edjerode (1996) 2 NWLR (Pt. 431) 468.
The 1st-6th Respondents have not filed any Cross Appeal to enable them formulate their own issues. As a result, Issue No. 1 is therefore incompetent and should be struck-out together with the argument canvassed thereto.
?Learned Appellant Counsel contended that abuse of Court process has moved beyond
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the filing of simultaneous suits to include filing of vexations and/or oppressive suits. See Ude Ubaka & Sons Ltd, vs. C. C. Ezekwem & Co. (2000) FWLR (Pt. 1) 17.
He then urged the Court to allow the appeal as the present suit in Court is an abuse of Court process.
In a Reply Brief, the Appellant contended that the argument of the Respondent in respect of Issue 2 raised by them is in the nature of a Preliminary Objection to the competence of the appeal without giving notice of same either in their Brief or separate Notice. As such, the Court should discountenance the argument in respect of their Issue 2. See Onwudinjo v. Dinobi & Ors. (2004) All FWLR (Pt. 234) 1819, Prof. Fagbule v. Rodrigues (2003) FWLR (Pt. 137) 1171, Esoruso & Ors. v. Alhaji Ogidi & Ors. FRLW (Pt. 137) 1171.
On Issue 2 of the Respondent, he submitted that there is no relationship between Issue No. 1 as formulated by the Respondent Issue 1 and ground 1 of the Notice of Appeal. There is need for issue for determination to arise from the grounds of appeal. See Ikine v. Adjerode (1996) 2 NWLR (Pt. 431) 468.
?The 1st-6th Respondent have not
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filed a cross appeal to enable them formulate their own issues. Issue 1 is therefore incompetent and should be struck-out together with the argument canvassed thereto.
Basing on the Court’s Ruling on abuse of Court process, Learned Appellant Counsel submitted that the abuse of Court process has gone beyond the filing of simultaneous suits to include filing vexations and/or oppressive suits. See Ude Ubaka & Sons Ltd. C. C. Ezekwem Co. (2000) FWLR (Pt. 1) 7.
On the basis of the above background, Learned Counsel submitted that the Lower Court posture that this suit is not an abuse of Court process is not maintainable.
From the issues formulated by parties in this appeal, I am of the strong view that they can be compressed into two issues thus:
1. Whether the trial Court was not in error when he made an Order dismissing suit HC/245/2013 as not constituting an abuse of Court process and after dismissing the Application of the Appellant on same filed on the 19th November, 2013.
2. Whether that amounts to sitting on appeal over an Order made by a Judge of concurrent jurisdiction.
The issue of abuse of Court process was
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over flogged by Counsel to both parties.
Abuse of process of Court is a term generally applied to a proceeding which is wanting in bona fide and is frivolous, vexations or oppressive. Abuse of Court process as in this case means abuse of legal procedure or improper use of legal process.
An abuse of process always involves some bias, malice, some deliberateness same desire to misuse or pervert the system. There is said to be an abuse of the process of the curt when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, such as instituting a multiplicity of actions as in the present case. See Amaefula v. The State (1988) 2 NWLR (Pt. 75) 156, Okafor v. A.G. Anambra State (1988) 6 NWLR (Pt. 200) 659, Edet v. The State (1988) 4 NWLR (Pt. 91) 722. Again, in C. A. Banjo & Ors. v. Eternal Sacred Order of Cherubim & Seraphim (1975) 3 SC 37 at 42. The Supreme Court defined the term ‘abuse of Court process to connote the process of the Court must be used only bona fide and not improperly as a means of vexation and oppression’.
Furthermore, in Ogoejeofo v. Ogoejeofo (2006) 3 NWLR (Pt.
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966) 205, it was held that:
“The circumstances that will give rise to abuse of Court process include:
(a) Instituting multiplicity of actions on the same subject matter against the same opponent on the same issues or multiplicity of actions on the same subject matter;
(b) Instituting different actions between the same parties simultaneously in different Courts, even though on different grounds;
(c) Where two similar processes are used in respect of the exercise of the some right;
(d) Where on Application for adjournment is sought by a party to an action to bring an Application to Court for Leave to raise issues of facts already decided by the Court.
See C.B.N. v. Saidu . H. Ahmed & Ors. (2001) 11 NWLR (Pt. 724) 369.
In the instant Application, the learned trial Judge made some observations on page 154 of the Records in his Ruling amongst other viz:
(a) Parties in the two earlier suits No. HC/171/2007 and HC/140/2012 are substantially the same as in the present suit;
(b) The issues raised by the Claimants (Respondents) in all the three suits taken out here are the same and the same reliefs
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sought…”
Suit No. HC/171/2007 was struck-out for being incompetent in accordance with Order 2 Rule 2(2) of the Cross River State High Court (Civil Procedure) Rules 2008. Both the writ and the Statement of Claim were not signed. Also Suit No. HC/140/2012 was dismissed by the Court presided over by M. Edem J. on the 15h July, 2013. The basis for dismissing same as held by the trial Judge is that the parties in that suit and the present Suit No. HC/245/2013 are the same together with the issues and the reliefs claimed.
It is therefore surprising how the Learned trial Judge after admitting in his Ruling that the parties, issues and reliefs in all the cases are the same yet, he turned round to say that the circumstances that have played out in this case is not an abuse of Court process. I do not agree with him.
The Law is settled as to the distinction between an Order dismissing a cause or matter and an Order striking the same out, as well as the consequences of the two modes of termination of a cause or matter. The striking out of cause or matter by a Court invariably Leaves the Plaintiff with the option of reviving the matter and having
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it placed on the cause list at anytime subject to showing good cause. Indeed, if the Plaintiff’s cause of action is already caught by any relevant or Applicable statute of limitation, he can simply proceed to file a new action. On the other hand, an order dismissing a matter does not allow for the resuscitation of the cause or matter in question. Related to this is the application of the principles of estoppel per rem judicatam. While the plea of estoppel per rem judicata does not apply in respect of a suit that is struck-out, it applies in respect of a suit that has been dismissed. In Okwo Ejiofor v. Eze Onyekwe & Ors. (1972) LPELR-1068 (S.C.) Coker, JSC in delivering the Judgment held thus:
“An Order for dismissal operates as estoppels per rem judicata and ipso facto leaves the losing party for all times from re-litigating the same subject matter.”
See also Okpaloka & Ors. v. Umeh & Anor (1976) LPELR-25(CA).
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From the history of this case, it is on Record that Suit No. HC/171/2007 was struck out first. Later on, Suit No. HC/140/2012 was dismissed on the 15th July, 2013 by his Lordship Honourable Justice Michael Edem. What
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is very fundamental is that in the two suits above mentioned is that the parties, the cause of action and the reliefs are one and the same. Therefore, I do not see or agree with the learned trial Judge that the plea of abuse of Court process is unsustainable even after bringing the same suit repeatedly to the embarrassment and annoyance of the Appellants as in this case. Suit No. HC/245/2013 was instituted after the Court had dismissed suit No. HC/140/2012. If the parties in Suit No. HC/140/2012 felt aggrieved with the order dismissing their matter, the option left for them was to appeal against that order. To institute suit No. HC/245/2013 against the background of previous suits struck-out and dismissed on the same parties, cause of action and reliefs claimed are one and the same.
Against, the above background, I am of the strong view that the present suit that necessitated this appeal is HC/245/2013 is an abuse of Court process for the reasons already highlighted above. The argument of the Respondent in respect of this issue is hereby refused and accordingly discountenanced. There must be an end to litigation as a rule of public policy and in the
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interest of common good. This is covered by the well known Latin maxim “interest Reipublicae ut sit finis litium”. See also Aro v. Fabulude (1983) 2 SC 75 at 83, (1983) NSCC Vol. 14 pages 43 at 45 – Per Anigolu, JSC, where it is stated inter alia thus:
“… public policy demands that there should be an end to litigation once a Court of competent jurisdiction has settled by a final decision ? not only must the Court not encourage prolongation of a dispute, it must also discourage prolongation of litigation”.
See also Adigun & 2 Ors. v. A/G Oyo State & 18 Ors. (No. 2) (1987) 2 NWLR (Pt. 55) 197 at 231.
In the case of Yakubu v. Ajaokuta Steel Company Ltd. & Anor. (2009) LPELR-CA/C/201/2007 this Court held that it is a rule of public policy that there should be an end to litigation and also that nobody should be sued twice on the same ground. See Joe Nwaru v. Commissioner of Police, Kano & Anor. (1994) 5 NWLR (Pt. 347) PAGE 722, Nnah George Onyeabuchi v. INEC & 4 Ors. (2002) NWLR (Pt. 103) 453.
?One of the issues raised in this appeal is whether or not a Judge has power to set aside, vary or sit on
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appeal on the orders of another Judge(s) of co-ordinate or concurrent jurisdiction.
The Appellant raised this issue against the trial Judge when he remarked in his Ruling at pages 31-32 of his Ruling as shown in the Record of Proceedings thus:
“The order dismissing and striking out the previous suits of the claimants were not Orders made after a full hearing of the cases under review….. but complaints that touched on the mode of commencement of the suits as well as the service of Originating Processes. Certainly then, these Orders could never have settled the subject matter of the two previous suits taken out by the claimants her.”
Respondent’s submission is that the orders made were not orders made after full hearing and did not settle the subject matter in the two suits. As a result, he urged the Court to discountenance the submission that the trial Court was sitting on appeal over previous orders namely striking out and dismissing of both suits.
In the trial Court Ruling, the Court remarked that:
“The Orders could never have settled the subject matter of the two previous suits taken out by the Claimants (Respondents). As
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a result, the plea made by the 1st Appellant here cannot be sustained”.
By so holding, the learned trial Judge as a Judge of co-ordinate jurisdiction is quite incompetent to re-open the matter as he had done in this case and substitute its own decision different from that earlier given by a Court of concurrent jurisdiction.
In the case of Robert Nnaji v. Joseph Ede (1996) 8 NWLR (Pt. 466) 232 at 342, the Court held.
“… in the absence of statutory authority, a Judge has no power to set aside or vary the Orders of another Judge of co-ordinate or concurrent jurisdiction. See Uku & Ors. v. Okumagba & Ors (1974) 1 All NLR (Pt. 1) 475… The better view is that once an Order is made at the instance of the Applicant, a party aggrieved by it, be it the Applicant or the opposing party has a right of appeal to a higher Court…”
This Court had in a similar situation in the case ofIni Okon Utuk v. The Official Liquidator (Utuks Construction and Marketing Company Ltd. & Anor.) (2008) LPELR-4323 (CA) held that the remedy open to the Appellant in that case was to go on appeal to the Court of Appeal. This position of the Law as
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presented above is not sacrosanct. It admits of a very important exception and that is where a Judgment or Ruling or any decision of a concurrent or co-ordinate jurisdiction is a nullity. See Skenconsult v. Sekondy Ukey (1981) 1 SC 6, Olu Onaguruwa v. I.G.P. (1991) 5 NWLR (Pt. 193) 638 at 639.
Since the Orders made in Suits No. HC/171/2007 and HC/140/2012 are not void ob initio and is not a nullity; there was therefore no need for the trial Judge to have held a contrary view which greatly influenced his Ruling dated the 31st March, 2014.
In the final analysis, I hereby resolve the lone issue in this appeal against the Respondent. The appeal therefore succeeds and it is hereby allowed. Consequently I hereby set aside the Ruling of the Lower Court delivered by Elias O. Abua J. In Suit No. HC/245/2013 I assess and fix cost of N50,000.00 in favour of the Appellant.
Other Citations: (2016)LCN/8709(CA)
