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